The royalist's defence vindicating the King's proceedings in the late warre made against him, clearly discovering, how and by what impostures the incendiaries of these distractions have subverted the knowne law of the land, the Protestant religion, and reduced the people to an unparallel'd slavery.

CHAP. V. That the Judges of the Kings Bench, of the Common Pleas, and the Barons of the Exchequer, are the Judges of the Realme, unto whom the people are bound lastly and finally, to submit themselves for matter of Law.

BUt some give this power to the Parliament, others to the two Houses joyntly, others to the Lords House singly, and some make the House of Commons Judge of the Law.

All which are meere surmises by faction raised and spread abroad since this Parliament, for besides what before is said here∣in, in the next precedent Chapter, upon consideration had of the quality of the persons of those Members, the Commission required to authorize a Judge of the Law, and the composier of that Bo∣dy; It will appear, they are so far from having any such power, as that (the Lords House in some particular things excepted) nei∣ther the Parliament, nor the two Houses joyntly, nor either of them singly, can judicially, or finally determine any one point of Law.

First for the quality of the persons: And to begin with the House of Commons. They consist of Knights of Shires, Citizens, and Burgesses: The Knights of the Shire, we see by experience, although sometimes men of estates are chosen, yet not alwaies of the best understanding: For the Citizens, and Burgesses, the Cities and Corporations for which they serve, are Instituted onely for ad∣vancement of trade, and accordingly the bodies of such townes and places, consist of Tradesmen, whose educations are onely to learne Crafts and occupations, and the far greater number of them mecanick handy-crafts: Besides, the true cause of authorizing Corporations to send Burgesses to Parliament, is, that they may give information concerning the Trading in those places, to the end, if need be, to make Laws for the increase thereof; And there∣fore such Citizens and Burgesses should be tradesmen; which ap∣pears, both by the foresaid Statute made 1 H. 5. and the words * 1.1 of the Writs of Election: By that Statute it is enacted, that none shall be elected Citizens or Burgesses, but freemen, dwellers and In∣habitants in such Cities and Borough Townes. And by a Statute made 23 H. 6. It is enacted that none shall be chosen a Knight of * 1.2 the Shire, but Knights▪ or notable Esquires, or Gentlemen borne and shall be able to be Knights. And no man to be such Knight, which standeth in the degree of a Yeoman, and under. And the words of the Writs of Election are these. For the Shire, Duos Milites gladiis cinctos, &c. For a City, Duos cives, &c. For a Borough, Duos Burgenses, &c. And so both by Act of Parliament, and by the Writ, the Intent of the Law is declared to be, that for the Shire, Gentlemen, for Cities and Boroughs Tradesmen are to be e∣lected: And the Members who serve for those Corporations, are

above four times the number of all the rest.

So that the Laws of England for electing Citizens and Burges∣ses, being observed as they ought to be, the far greater part of that Assembly, must consist of Tradesmen and persons very unapt to judge the Law; Yet more proper for that service for which they were intended, then such as are at this present usually chosen; Whilst the Statutes and the Laws of the Realme were therein ob∣served, we heard not of any tumultuous or disorderly proceedings in that House: But of later times, and especially since the begin∣ning of King James His Reigne, the Borough Townes, by procure∣ment of factious persons, have more frequently chosen such, who were so far from having knowledge in the Trades and Traffick of those Boroughes; or being resident, or dwelling there, as that they never saw the Towne, nor was the Burgesse ever seen of any one of his Electors: yet contrary to the expresse negative words of the aforesaid Statute, and direction of the Writ, the Commons House declare those Elections Legall, which shewes that these Members are very uncapable to understand the Law, else a com∣pany of persons who have illegally without any due election by faction as aforesaid, packed themselves into that body, and accor∣dingly resolved to observe no other Law, but their owne will, and so however, whether learned, or unlearned, not fit to be Judges of the Realme, or finally to declare the Law.

2. All the Members of that House, as well Knights as Burgesses are elected by the vulgar multitude, and therefore were elections made according to the Laws of the Realme, Popular elections sometime produce like unto themselves: In somuch, that it may happen that not one knowing man in the profession of the Law, or one person literate, shall be returned Member of that As∣sembly.

3. Experience shewes it is most frequent as well for Knights of the Shire, as for Burgesses to elect Infants and Children, which are by that Assembly approved on, and have equall Voice with the rest, although by the Constitution of the Realme (as experience sheweth) they are so far from being admitted Judges of the Law, as that none untill he be of the age of twenty one years is capable to be sworne of a Jury, to try the least matter of fact.

4. All differences in that House are decided thus: First by de∣bate

the businesse is reduced to a head: Then the Speaker puts the question, then the Members Vote, and the greater number carrieth it, so that if the question be upon a point of Law, the quality of the persons of that Assembly considered, (admitting them as lear∣ned as ordinarily they are returned) the best which can be expe∣cted in such a case, is, That the major part (who is the Judge in every question there) may happen to concur in Vote, with some few of their fellow Members who they hope understand the busi∣nesse: And so at the best, this Judge decides the controversie by implicite faith: For, it cannot be imagined that the greater num∣ber of that Assembly, by any debate there had, shall understand many questions of a Law, which daily, and frequently happen.

And for the Lords House, the Members of that Assembly have no other authority to sit, or Vote there b 1.3 but as Peers of the Realme, and admit the King never to create a Peere of the Realme, but a man of the greatest judgement, it cannot be expe∣cted understanding should alwayes descend: Upon which ground it is, that a grant of a place of Judicature to one and his heires, as to his heires is voide in Law, and although the education of the Lords, for the most part are fit for persons of Honour, yet they are not qualified to Judge the Law.

Thus for the quality of the Persons: Now for the Commission.

Admit every Member of each House, in knowledge, more pro∣found then the most learned Judge, that makes them not Judge of the Law; If the most learned, because so learned, be a Judge, it is far more difficult to find out the Judge, then to know the Law, it is like as well the ignorant, as the learned, would pretend to the greatest knowledge: But that is not the rule to know a Judge, he is distinguished from other men by his Commission.

It appears before, that no Court, Assembly, or Person, hath au∣thority to determine any matter of Law, but by Grant from the King, by Act of Parliament, or by prescription: Even so it is for the power, extent, and jurisdiction of any such Court, person, or As∣sembly; For, as no man can have any authority but by Commis∣sion, so none can claime greater, or other power then is thereby granted: For example, If the Court be erected by the Kings

grant, the Patent declares what authority the Iudges have, beyond which they have none: If by Act of Parliament the Statute doth expresse what they have Jurisdiction of, if by prescription, Cu∣stome, and use informe the Iudges what they have to do, and for a prescription to make it good these three things must concur. 1. It * 1.4 ought to be time out of mind, which is not allowed by our Law; (If it can appear to have had its commencement since the Reigne of King R. 1.) Secondly, a 1.5 although it hath been ancient, yet unlesse it have constantly and frequently practised without inter∣ruption, it is not good. Thirdly, The thing it selfe claimed must in the judgement of the Law be reasonable, otherwise, be the usage time out of minde, and how frequent soever, it ought to be dis∣allowed, for b 1.6 malus usus abolendus.

The Chancery, the Kings Bench, the Common pleas, and the Court of Exchequer are Courts of Justice: The Iudges thereof have power of Judicature, and although in some things their authority may be inlarged, and in other things abridged by some particular Acts of Parliament, they have their jurisdiction c 1.7 principally by prescription. Custome and use is their Commis∣sion: The said Courts were not erected by Patent, nor by Parli∣ament, yet every one of them hath its proper and peculiar ju∣risdiction: The Chancery for Equity, the Kings Bench for Pleas of the Crowne, the Common pleas for reall actions, and other mat∣ters of the Law; The Exchequer for the Kings Revenues: And every one of these Courts is circumscribed within its own bounds.

The Chancery (unlesse it be in some particular cases warranted by custome) hath not power to determine questions of Law; nor the other three Courts matter of Equity: The Common pleas not to intermeddle with the Pleas of the Crowne, nor the Kings Bench (unlesse occasioned by breach of the Kings peace) with questions concerning title of Lands; And none of them hath authority to extend beyond its bounds in any one particular: All which is made good, by authority and reason; For authority it is resolved in the bookes of the Law, that if the Judges of the Common pleas d 1.8 in an Appeale or Indictment for murder, felony, or other capitall crime, condemne any person, their proceedings are voide, as done coram non Judice. That person so condemned, although guilty of the fact, in the judgement of Law, is not attainted, nor his blood

corrupted, he forfeits not his estate, and if executed, e 1.9 although by the command of the Judges of that Court both Judge and exe∣cutioner are guilty of felony, and punishable as if done without that command.

If the Lord of a Leete hold his Court, or the Sheriff his Turne, at other times then custome doth warrant. Or the Court of Marshalsey assume jurisdiction, not made good by use, their pro∣ceedings are void. In all which cases the Officers, or Ministers of those Courts, are punishable for executing the commands of the Iudges thereof; wherein the Law takes this difference, viz. When a Court assumes power to determine that which it hath not Com∣mission to determine, f 1.10 and when it hath jurisdiction of the cause, yet proceeds inverso ordine, in the first, as in the cases afore∣said; The Minister is not excused, or justified by the warrant of the Court; In the latter, the warrant or processe of the Court, is a legall justification, as thus: If the Court of Common Pleas hold Plea without originall, or award processe of Capias a∣gainst a Peere, and the like, in these cases, although the pro∣ceedings be illegall, yet in regard the Court hath jurisdiction to determine the cause, if it were a 1.11 regularly brought before them, the processe or warrant of the Court, is a good justification for the Minister thereof.

And this rule holds with all other Courts, Assemblies, and per∣sons, when they act, or doe such things as they have b 1.12 not Com∣mission for, their proceedings are void: So that the Laws of En∣gland admits not of Iudges, but persons qualified to performe that office, yet ability by it selfe, is no Commission to make a Iudge.

The Judges of the Common Pleas, are as learned in the Law, and as able for their knowledge to determine Pleas of the Crowne as the Judges of the Kings bench, but they have not the same autho∣rity. The Court of Common Pleas hath not used it, and conse∣quently it is out of their Commission.

And that no Court ought to extend its owne bounds, is made good by reason; For if any Person, Court, or Assembly takes up∣on them, in any one thing, to execute that which their Commis∣sion extends not to, by the same reason, they may assume it in an∣other, and so in infinitum, upon which it followeth, that the power of that Court, Person, or Assembly is become boundlesse:

And if one Court, Person, or Assembly may inlarge its bounds, the like reason holds with every Court, Person, and Assembly in the Kingdome; and so a Parity introduced, and consequently the whole Government subverted and destroyed.

In the next place it is considerable to know, what Commission the Parliament, the two Houses, or either of them, hath therein.

And first for the Commons house: That Assembly hath no Com∣mission from the King, nor by Act of Parliament to Judge the Law; and for Prescription, they faile in all the foresaid three par∣ticulars: for, they cannot challenge any thing time out of mind: The Assembly it self had its beginning after the Raign of K. Ric. 1.

Secondly, admit them to have been time out of mind, they fail in the use, for untill this Parliament they never executed or clai∣med any such thing.

Thirdly, admit them to have been time out of mind, and con∣stantly to have used the power of Judicature, yet it ought to be disallowed, because not reasonable: it is repugnant to the Rules of Law and justice, that persons not fitly qualified should have power of Judicature.

By the constitutions of England, controversies are decided thus, The Plaintif exhibits his complaint in a Court of Justice, and that e 1.13 in the Latin tongue. The Defendant answereth in the same Court and Language, out of which pleading the case ariseth; which sometimes is questio facti, and sometimes questio Juris: If it be facti, it is tried by a Jury sworn by authority of that Court where the suit depends, and that cannot be the Members of the Com∣mons house, for (besides the difficulty of the Language) those Members cannot give an Oath; and if it be matter of law, the sworne Judge is to determine it; but they are not sworn to doe justice.

And for the Lords house it is granted, that in some things, which custome and use hath made good, the Members of that Assembly have power of Judicature; for, although that House, (as now it is formed and setled) hath not been so auntient as to make a Pre∣scription, yet the Prelats, the Peers, and the Judges time out of mind, have been frequently called together by the Kings of Eng∣land, and consulted with concerning making of Laws, and other the affaires of the Common-wealth. And amongst other things,

the Lords (depending therein on the advice of the Judges) have so auntiently, as the beginning thereof cannot be made appear, by licerse of the King, upon Writs of Error, reversed erronious Judge∣ments given in the Kings bench: But as the Lords have this autho∣rity by Prescription, so they are excluded from all other power of judicature, but that which custome and use doth warrant; for, Pre∣scription, is all the Commission they have. Neither Grant from the King, nor Act of Parliament they have for a Court of justice.

Now to give power to the Lords house, or to the Commons house, to inlarge their Commission, or Jurisdiction, the same incon∣veniences would thereupon ensue, as by suffering other Courts to doe the like; if the Members of the Commons house, should at this day, take upon them to give an Oath, and this legally intitle them to it, by the same reason they might, (as now the present Members of that Assembly in effect doth) without King, or Lords, assume the whole Government.

And for the two Houses jointly, they are not a Court of judica∣ture; they have therein no Commission at all, neither from the King, nor by Act of Parliament, nor by Prescription.

And for the Parliament, that is, the King and the two Houses, that body cannot properly be said a Court of Justice. The Office of a Judge is, upon a Question depending before him, to declare what the Law is; but the office of the Parliament, is only to make new laws.

By this it appears, that neither the Members of the Lords house, nor of the Commons house are qualified to be Judges of the Law, nor have they either jointly, or severally Commission for that pur∣pose.

And lastly, admit every Member of either house in Learning sufficiently qualified to make a Judge, their composure considered, they are not capable jointly to perform that Office; they being two distinct bodies, their proceedings severall and distinct, it can∣not be expected, but they shall frequently differ in Opinion and judgment: therefore were they never so learned, should the King grant unto them power of judicature, or should they have that authority given them by an Act of Parliament, the Lawes of England would judge both that Grant and Statute absolutely void e 1.14 as a thing most incongruous against sense, and reason.

Upon which it followeth, that if the Lords House, or the Com∣mons house, or both Houses jointly, have, or shall condemne any person, for Treason, Felony, or other capitall offence, try any title of Land, tax the people with payments of money, seise or confiscate the Subjects estates, or the like, be it by Order, Ordinance, or any other way, all such proceedings are void, done coram non Judice: * 1.15 and consequently, both the Members, and all persons executing their commands therein, are by the Lawes of England punishable, as Murderers, Felons, or other transgressours, because done with∣out warrant or authority: And how long soever they shall conti∣nue this power, and how frequently soever it is used, that alters not the case, the Law is still the same it was.

Yet herein, I doe not abridge the power and authority of the Peers of the Realme. It is true, when the King hath constituted a Lord high Steward, and consented to the triall of a Peere for his life, for a fact committed against the known Law, such a Peere not only may, but ought (the Lords observing the rules of law) to be tried by the Lords his Peers. But there is no colour for the Lords, or for the Commons, or for both Houses jointly, although the King should give way thereunto, to try, or judge any Commo∣ner: Every common person ought to be tried by his Peers too, that is, by a Jury of the Commons, and that Iury by the Lawes of England, ought to be of that County, and neare that place, where the fact is committed. It is a Rule in our Law, that in capitall of∣fences, Ʋbi quis delinquit, ibi punietur: persons dwelling near the place, are most likely to have cognizance of the fact. Besides, by our law, every free-born Subject of this Nation, hath at his ar∣raignment, power and liberty to challenge Iurors impannelled for his triall: But all such liberties are taken away by this usur∣pation of the Members.

Thus it appears, that the Judges of every Court of Justice, so far as their Commission extends, and no other persons, are Judges of Law. But the Judges of no one Court, are those unto whom the people are bound lastly to submit themselves, for eve∣ry Court of Justice in some respect is inferiour to another Court or power unto which appeales lie, as in the case of a Writ of er∣ror and the like, unlesse it be in the Exchequer Chamber when the cause regularly depends before the Judges of the Kings Bench, the

Common Pleas, and the Barons of the Exchequer, into which Chamber, things of great weight and difficulty concerning matter of Law are usually transmitted; And being there judicially deter∣mined from that sentence, t•• conceive no appeale lies to any other Court by Writ of error. That is the a 1.16 sentence and judgement of the Judges of the Realme: yet from that judgement some persons are of opinion, a Writ of errour lieth before the Lords in the upper House of Parliament.

But upon consideration had of the reason of the Law concer∣ning the proceedings in Writs of error brought there: I conceive it were to little purpose to permit any such appeale unto the Lords upon judgements given in the Exchequer Chamber before all the Judges of the Realme.

The power of the Lords House to reverse erronious judgements, I conceive began thus; The Court of the Kings Bench, is the high∣est Court of Judicature, wherein any suite of Law can legally and regularly be brought; and therefore their proceedings not to be examined by any other ordinary Court of Justice, every one of them being inferiour to it: But the Judges of the Kings Bench, are as subject to erre as the Judges of other Courts; Therefore as requi∣site to have their proceedings examined.

Now in regard the Judges of the Realme were at all times, at least assistant to the Lords House, it was proper enough to have the errors of the Kings Bench reversed in that place: And having had its beginning thus, constant use and custome hath Legally inti∣tuled them unto it: Therefore, although peradventure it may have happened, that some few particular Writs of errour, have been brought in the Lords House, upon judgements given in some other Courts, I conceive the prescription (which is all the Commis∣sion they have) lieth only for the Kings Bench. And I am the more confirmed therein, because the Law bookes mentioning the au∣thority of the Lords House, in reversing judgements, do general∣ly instance in the Kings Bench, not naming other Courts. Besides, as the Lords House hath this jurisdiction by prescription, the same use and custome requires these circumstances. 1. That the Kings consent to prosecute a Writ of error be obtained; because every judgement in the Kings Bench, doth immediately concerne the King, the jurisdiction of that Court being properly Pleas of the

Crowne. 2. That the Lords after the cause is brought before them, proceed by the advice of the Judges, which is indeed the essentiall part of the prescription: To have a profession of Law, Courts of judicature erected, persons learned in that profession appointed Judges thereof, it were most preposterous to have the proceedings of these Judges (even in the most difficult points of the Law) exa∣mined, reversed, and controlled, by persons ignorant in that pro∣fession.

By the constitutions of England, no man is capable to be a Judge, unlesse he have understanding in the Law to performe that office. Therefore shall the King grant to one who is most learned, a Judges place to him, and his heires, as to his heires it were void, and the same it were, if such a grant were made by Act of Parliament: And so consequently if the Lords should prescribe that time out of mind, they, and their predecessours, Lords of the Parliament, in Parliament time, have (without mentioning it to be with the ad∣vise and assistance of the Judges) reversed erronious Iudgements given in the Kings Bench, or in any other Court of Iustice, it 〈◊◊〉〈◊◊〉 be disallowed, judged as an evil use, not consonant to the rules of Law or reason, it were (without any disparagement to their Lordships) all one (if not better) when the question is whether the Iudges of the Court of Kings Bench, erred in judgement, to have it determined by casting of lots, for whether right or wrong judg∣ment were given, if the Lords determine it, it is but chance whe∣ther they pursue the Law or not: And if by lot expence of money is saved.

Therefore cleare it is, to examine a judgement given in the Exchequer Chamber, by a writ of error brought in the Lords House, is (in effect) for the same persons to judge whether them∣selves erred or not, and so whether the Lords have, or have not this power, the Iudges of the Realme a 1.17 are still depended up∣on; And in case the King, and the two Houses make an Act of Parliament, concerning the same thing, when that Act is passed, from them (as before appears) an appeale lieth (by an action or suite at Law) unto the Judges, who have power to determine whether that Statute be binding or void, and therefore clear and manifest it is, that in matters of Law the last and finall sentence, is the Iudges of the Realme.

But me thinks for a Nation which hath been governed so many hundreds of years by a known Law, and under it, so flourishing a people as the Subjects of England have been, and yet not to be agreed, who are the finall Judges of the Law, is so grosse a thing, as that all forraigne Nations hearing of it, cannot but accompt us men to have lost our wits. In every constitution it is oftentimes difficult (even amongst the learned in the profession) in some par∣ticular questions arising, to determine what the Law is: But not to know what persons have Authority to decide those questions, is most ridiculous.

The Judges of the Law ought to be so conspicuous, as that all persons, even from the most learned unto the most ignorant, may equally alike discerne the men: Which considered, I conceive it necessary not only for the information of the vulgar people of England, which have herein been grosly deceived, but for the Vindication and Honour of our own Nation, and the Law establi∣shed so farre to digresse, as in a word, to shew how this fond que∣stion was raised and controverted in this Kingdome, which was thus.

This Nation is governed by a known Law, that Law ••••dgeth the King to be our onely Supream Governour, gives power to the King, with the assent of the two Houses, and no other, to alter that Law, and to make new Lawes, And to the Judges of the Realme it ascribes the power finally to declare the Law: Now such, whose aime is to usurp Soveraignty, or to swallow the wealth of the Nation, cannot hope to effect their ends by sub∣mitting to the known Law, That were to commit a crime, & imme∣diately submit themselves to the block. Therefore they must either deceive the people by mis-informing them what the Law is, else by strong hand to enforce upon them a new Law for their own purpose. Now that the Members aime was at no lesse then all, is too too apparent: But at the beginning of these distractions, they were not in a condition to force the people, Therefore their Iudgements must be deceived. Hereupon the Plot was, that the Members (in the opinion of the people) should gaine the reputa∣tion of being the finall Judge of the Law, which was effected thus: The people by reason of some good Lawes obtained of the King by the Members procurement, were inclinable to believe what∣ever

they propounded; Then the Members Voted Thus, viz. That when the Lords and Commons declare what the Law of * 1.18 the Land is, it is a high breach of Priviledge of Parliament to que∣stion it.

This being published, and the people (by Incendiaries spread throughout the Kingdome for that purpose) by false Calumnies cast upon the King, being grosly abused, the Members work was (in a manner) finished: Then they took upon them the power of the Militia, declared that the Soveraigne power was not in the Kings Person, but virtually in them: And from thence, what made for their advantage (how grosse soever) did but the Members declare it for Law, and good enough: Thus the Iustice seate, even by a sleight became both disputed and usurped: But now the Scales are turned, The peoples understandings are enlightned, they see how grosly they were misled, They finde that whilst the Judges of the Realme declared the Law, both King and Subject were preser∣ved in their Persons, lives, and fortunes: That by this usurpation, the known Law is subverted, and consequently, that protection vanished. But as the people have changed their opinions, so have the Members framed a new Argument: They have left the Word, and betaken themselves to the Sword: They having Armies to back them; their will is now the Law, and resolve whilst they can, by force to hold it.

Thus we are fallen into a gulf of misery, whereas had the peo∣ple been but half so carefull to have found out the Truth, as they were industrious to effect their owne destruction, these calamities had been prevented: When the difference first hapned between the King and the Members, had not the people leaped into their own ruine, but taken the least consideration thereof; had they be∣thought themselves how they were to be rightly informed what the Law was, they must have resolved, that as we had a Law, con∣sequently there must so long have been a Judge of that Law; But the Members neither exercised, or pretended any such power, one minute beyond the foresaid Vote.

And for Authority, to make their pretence good, none can be produced, but that their own testimony in this their own case; and in a thing of no lesse concernment, then the gaining of the wealth of the whole Kingdome to their own use, and enslaving the people to

their owne pleasure. Hereupon, doubtlesse the people would have concluded, that (not the Members) the Judges of the Realme were the men, unto whom all persons were Obliged to submit for matter of Law.

But it is objected, That this is too great a power for the Judges, for (say they) those persons may, and doe erre in Judgement, and are sub∣ject to corruption, as in that case of Ship-money.

Answer.

It is true, the Iudges have erred, and it being granted, that in the case of Ship-mony, they did erre, and were corrupt too, and that it cannot be expected but they shall againe, and againe erre, & be corrupt; yet until we have other Creatures then Men to make choise of for Iudges, this Objection ought to be disallowed: We finde the Members to be no Gods. And for the weight of the bu∣sinesse, concluded to be too great for the Iudges; I Answer, that, that power must be in some; To have a Law without a Judge, final∣ly to end controversies, were worse then to have no Law at all: And to have a Law, and a Judge of that Law, who understands not the profession, were a degree worse then that. Suppose it granted, that the Iudges in that case of Ship-mony, gave Sentence by corruption; whereby about 200000. l. per annum was drawn from the people: To conclude hereupon, that we must from henceforth have no more learned men chosen Iudges, is extreame harsh. It might as well be argued thus, The Members of the two Houses have erred in Iudgement, and have been corrupt, ergo, we ought to have no more Parliaments. For as before appeares, the Members of former Parliaments have most grosly erred; And for these present Members they have not only erred, but have been (in the highest nature) corrupt too. First, They erred in Iudge∣ment, by assuming the Iustice seat, the Soveraign power of Go∣vernment; and so in infinite other particulars. Then for corrup∣tion, since these Authorities were by them arrogated, twice twen∣ty times 200000. l. per annum, illegally and barbarously drawn from the people, doth not stint them. They have corruptly by one Vote, not onely given themselves the wealth of the whole Nation, but have likewise enslaved both King and People for

their lives and fortunes to their owne will. But clear it is, no con∣stitution can avoid every mischiefe: it is the best Law which pre∣vents the most inconveniencies: therefore in this case, that which can be done, is to have persons who are learned in the profession, made Iudges of the Law: and all possible care taken that they doe Iustice, and for that, by our Law, no man is capable of a Iudges place, unlesse he have ability to execute the same: And although he be sufficient for learning, yet being advanced for bribes or re∣wards, he is by Law likewise disabled to performe the office. They are sworne to do right to all persons; and although error in judge∣ment * 1.19 is no crime, yet corruption in the Iudge, be it for bribes, affecti∣on, malice, desire of preferment, fear, or any other cause, is by our Law an offence of an high nature, and and most severely puni∣shed.

Now (if in stead of exalting themselves) the Members had (as they made some shew for a while) made inquiry, how, and by whom the Judges were drawne (as the Members alleadge) to give that corrupt sentence, and had presented the same to the King, to the end, not onely exemplary punishment might have been inflicted upon them; but they put out of their places, and new Iudges ele∣cted, the Members had done like Parliament men, that had pursu∣ed their Commission.

And so, whilst the King, the Parliament, the Judges, every Court, and Assembly retaine their owne proper authority with∣out clashing with, or encroaching each upon other, a 1.20 As by the Laws of England they ought to do, both King and Subject are preserved in their just rights: And this ought to be exactly ob∣served, notwithstanding the superiority, or inferiority of any Court, power, person, or Assembly; because one Court in some respect is superiour to another, that takes not away, nor lesseneth the pro∣per jurisdiction of the inferior Court: Scarce any inferior Court, but it hath some powers, which the superior Court hath not: For ex∣ample. The Court of CommonPleas hath power between party and party, to determine reall actions, which the Kings Bench hath not: The Assembly of the Commons House cannot give an oath, yet the meanest Court of Justice (even a Court of Pipowders) hath that power; So that, if it were admitted, that the two Houses of Parlia∣ment were a Court of Justice, (as it is not) And that it were the

highest Court of that nature in this Kingdome, that would not at all make good their pretence▪ to be the finall Judge of the Law, from whom no appeale should lie. But by this Vote, and practise of the Members, all Courts of justice, and rightfull powers in the Kingdome are put downe, the Law totally subverted, and all things reduced to their arbitrary power.

Upon the whole matter clear it is, that the Judges of the afore∣said three Courts, are the Judges of the Realme, and the persons unto whom all the people of this Nation are bound lastly and fi∣nally to submit themselves for matter of Law.

But notwithstanding all this, the same necessity which made the Members exclude the King from His negative Voice, and so to usurpe a boundlesse power to make Laws, enforceth them, to ar∣rogate the Justice seate too. For, it were to little purpose for them to declare it Treason for a Subject to speake to His King, and infinite such like grosse contradictions both to reason, and the knowne Law, and yet permit the rightfull Judges to determine the same questions, that were both to exalt themselves up, and at the same instant to cast themselves downe againe. But they tell us they are no such babies: So long as the people will be fooled, no∣thing is more certaine, but Tyrants they will be to us their slaves: In the next place it is shewed who ought to nominate and autho∣rize the Judges of the Realme.

Notes

• * 1.1

  •• H. 5. c. 1.
• * 1.2

  Stat. 23, H. 6. c. 15.
• b 1.3

  Coke, Calvins▪ case. fo. 15. Coke 7. fo. 33.
• * 1.4

  Dav. reports fo. 29.
• a 1.5

  Litleton fo. Coke 9. fo. 27. Davies reports fo. 29.
• b 1.6

  Litleton fo.
• c 1.7

  Coke 8. f. 145.
• d 1.8

  Coke 10. fo. 76, 77.
• e 1.9

  Co. 10. fo. 76.
• f 1.10

  Co. 10. fo. 76.
• a 1.11

  Co. 10. fo. 76.
• b 1.12

  Co. 10. fo. 74.
• e 1.13

  Stat. 37 E. 3. cap. 15.
• e 1.14

  Coke 8. 118.
• * 1.15

  Coke 8. fo. 76.
• a 1.16

  Co. 5. f. 8. vid. the Kings An∣swer to the Pe∣tition of right.
• a 1.17

  Co. 11. Lord La Wards case. Coke prefac. third report.
• * 1.18

  Their Vote.
• * 1.19

  Vid. the Oath▪
• a 1.20

  Co. 10. fo. 74.