The commoners liberty, or, The English-mans birth-right ...
Twysden, Roger, Sir, 1597-1672.
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THE COMMONERS LIBERTY: OR, The English-man's Birth-right.

1. THE Subjects of this Kingdom have ever estee∣med (amongst earthly blessings) the greatest to have consisted in the due administration of Justice, and therefore have on all occasions, had re∣course to their Princes for the confirmation, and right execution of their Lawes, the undoubted birth-right of every Englishman, the surest sanctuary any can take, and the strongest fortresse to protect the weakest.

2. This made Aldred, Arch-bishop of Yorke at the Coronation of the Conquerour, take a solemne Oath of him, a That aequo jure Anglos, quo Francos tractaret. And the people still call for their old customes, the Lawes of S. Edward, and such like, even to the granting of Magna charta by b King Iohn, quae ex parte maximâ leges antiquas & regni consuetudines continebat. And these are those we now call the Common Law, which is no other then c the common Custome of the Realme, which is seldome at any time d changed or taken away without some notable damage to the people.

3. One of these ancient Customes is, That no Free∣man of England should be tryed or proceeded against nisi per legale judicium parium suorum, by his Peeres, that Page  2 is, his equals, such who either in respect of his Nobility is of the Lords House, or if he be Commoner of such as is capable of being of the House of Commons, at least, unlesse some Law have disabled him.

4. The Originall of this Custome in England is, for ought I know, as Ancient as any Triall in this Nation, no doubt long e before the Conquest, and since that time amongst the Lawes of Henry the First, (which were apparently for the most part drawn from the Customes f of the Kingdom) we find them speak as an undoubted Maxime, that Unusquis{que} per pares suos judicandus est, & ejusdem Provinciae, we now say de Vicineto peregrina vera judicia modis omnibus submovemus, and in those times a man might challenge whom, and as many as he would. gIudices non debent esse nisi quos impetitus elegerit: which must be understood for the tryall by Jury: for other Judges (as the chiefe Justice, &c.) he might not except against. According to this William de Brauce, Anno 1208. * affirmed he was ready to satisfie the King, secundum judicium Curiae suae & Baronum parium meorum, saith he, which was before Magna Charta. And this Cu∣stome thus antient was at the first establishing of Magna Charta confirmed by expresse words in the 29. Chapter, and ever since taken as a great injurie when any hath otherwise been proceeded against. K. Iohn soon after the first grant of the Great Charter had recourse to the Pope against the Barons, who takes notice their tryall ought to be hin curia sua per pares eorum secundum leges & consuetudines regni,i An. 1227. King Hen: the 3. urging his brother to deliver a Mannor of his to one Waleran, The Earl answered, the Mannor belonged to him, yet he was ready Curiae regiae subire judicium & Magnatum terrae. At which the King being very angry, told him, if he per∣sisted Page  3 in the refusal he should leave the Kingdome, who with great resolution answered, he would not, sine judi∣cio Parium suorum. So An. 1234. one of the reasons the Earl Mareschall gives for his taking up of armes was, that the King had severall times defied him, kcum semper, saith he, paratus essem in curia, juri parere, & stare judicio parium meorum. By all which and many more Examples, which for brevity I here omit, it hath ever been held an undoubted injury, when any hath been proceeded against otherwise then per Pares, in such cases as were of their cognizance.

5. Some of the grounds of reason (for avoiding all partiality) on which this is built, I shall hereafter touch, though I can adde nothing to that is so learnedly done by other men: Yet it will not be here amisse to shew that this ancient and fundamentall way of proceeding, hath been never in any kind altered, but to the intollera∣ble detriment of the Subject. The cause of making the Statute of 3 Hen. 7. cap. 1. is said, to be for that by seve∣rall enormities in untrue demeanings of Sheriffs in making of Panells, and other untrue returns, little or nothing could be found, but divers were almost utterly destroyed, &c. And therefore it doth enact, that certaine Councellors there named, should upon Bill or Information call before them the said misdoers, and examine them, and others by whom the truth might be knowne, and to punish such as they should find defective, after the forme and effect of Statutes thereof made, &c. Yet how intoller able a burthen the pro∣ceedings, Censures, Decrees of the Star-chamber were found to the Subject, and the meanes to introduce an Arbitrary power, every mans memory reacheth to, and the Act for abolishing it, sufficiently declares.

The 11 H. 7. cap. 3. authorized Iustices of Assize, and Page  4 of the Peace upon a bare information (without any find∣ing or presenting by verdict of twelve men) to heare and determine all offences, by colour of which Act, shaking (saith l Sir Robert Coke) the Fundamentall Law, it is not credible what horrible oppressions were committed, &c. I might here remember the 31 H. 8. cap. 8. and the 34 H. 8. cap. 23. which altering that ancient and knowne try all by Jury, were not long lived, being both repealed, the 1 E. 3. cap. 12. nor could the King by them work that Re∣formation he expected. And whereas it is objected, There must somewhere be an Arbitrary power. I grant, some must judge, whether Laws to be made are for the good government of a Common-wealth, & that is the Parlia∣ment, but not in the executing of them: For mCum leges institutae fuerint, non erit liberum arbitrium judicare de ipsis, sed oportebit ipsum judicare de ipsas.

6. Under this impartiall way of distributing equall justice to all men (in receiving which certaine it is reason∣able the highest Duke should be levell with the lowest beggar, and is for ought I know the chiefest Levelling aymed at the Subjects of England have enjoyed great Peace and happynesse, ever strugling against the exer∣cise of any arbitrary power whatsoever. But now of late when we are freed of the Star-chamber, &c. there is an opinion raised by some Grandees who are feared to aime at an Arbitrary power, to carry on their designes, that the Lords, without any presentment upon Oath, or tryall by Iury, may upon a bare information, and examining of certaine Witnesses, proceed against any Commoner whatsoever, and that to deny this, or not submit unto them, is a breach of the Priviledge of the House of Peeres: And a great Lawyer of late hath writ a Tract to justifie their Sentencing, Fining, and Imprisoning any Page  5 Commoner, and handling all who refuse to answer to them, and by pen defend their so n doing, as contem∣ners of their authority, ignorant, sottish Sectaries, illite∣rate Ignoramus's, altogether unacquainted with our Hi∣stories and Records, &c. To which I must needs say, (to answer once for all) that this is not a sincere way of trea∣ting the matter in question, to make the world beleeve there are none but such as contemne the authority of Parliament, ignorant persons, and the like, which be∣leeve this: when I dare boldly say, of such as have stu∣died, and understand the question, foure parts of five are of that opinion. And himselfe, pag. 45. holds their indubitable right of Judicature of Commoners to be but in extraordinary cases of Treason, Felony, Trespasse, and Misdemeanors, tryable onely in Parliament; which, if he shall be pleased to enumerate, what they are that cannot elsewhere be tryed, I shall not much differ with him, but that the tryall of such offences might be proper for Parliament, but such I confesse I know none. And to make that a crime, which no knowne Law calls a crime, is against the Apostles definition of one, Sinne is the*Transgression of the Law, and againe, I had not knowne sinne but by the Law. It is likewise against the Lawes of this Land.

7. Before I passe farther, it will not be amisse to agree upon the Question, which is not, Whether upon the Petition of the Commons, and that passing the Lords House, the King assenting to it, a Commoner may not be condemned, it being indeed then an Act of Parliament, such were those of 50 E. 3. against Richard Lions, William Ellis, &c. which were confirmed by the King at Eltham. Neither if the King and Lords (which I neither affirme, nor deny) can censure in some cases a man according to Page  6 Law, doth it therefore follow the Lords alone can cause a Commoner to be fined, imprisoned, or executed? It being certaine, the King for ratifying any such thing in Parliament, must be present in his naturall capacity, of which there needs no other instance then the last I men∣tioned of o the 50 E. 3. when the King being sick, sent for the Lords and Commons to Eltham; which cer∣tain he had not done, had there been any other practiced way for confirming what he intended to passe (besides his owne presence) before the Statute 33 H. 8. cap. 21. which yet enacts that every law confirmed in his ab∣sence shall be both under his Seale, and signed with his hand, of which the last is certainly personall. Neither is it the Question, Whether the Lords can judge such cases as come into their House, according to the Statute 14 E. 3. c. 5. Stat. 1. or give Judgement upon a Writ of Error on a Cause legally brought thither, out of the Kings Bench.

Neither do I impugn, but that their opinion is of great Authority in point of Law; every circumstance rightly considered, before their delivering of it, of which an un∣doubted one I conceive to be, the knowing what the Law is, by the Judges, or other, who best understand the thing in question, for if otherwise, it is contrary to sense, to imagine a few Lords (of whom, not many are usually skilled in the Lawes, and being out of the House, are but like other men) should within those walls, as it were by inspiration, be the supreame Judicature of the Realme. There must at the tryall of a Peere be at p least 12. or above, who have ever assisting them some of the Judges to advise the Lord Steward and them, what the Page  7 Law is; who comming up to the House of Peeres, may direct the Judges (who have spent much time in study∣ing it) what the Law is. This is so clear it needs no proof, else I could shew where the opinion of the Judges not q taken, the Judgement of the Lords was soon made voide; And in other, where being given according to their sense, it remaines Law to this day.

But the Question is, whether the Lords alone, upon a bare Information (for a Triall by Jury they use not, nor ever did, to my knowledge, without the King) can Try and Censure any Commoner to his Detriment, either in his Person or Estate▪

8. First. And this, I conceive they cannot, being not certain to be de Vicineto.

Secondly. Because in point of Life, no Commoner can ever Try a Lord of Parliament.

Thirdly. Because the party Accused; cannot chal∣lenge any of the Lords his Tryers, &c.

Fourthly. Because it is expresly enacted, 4 Edw. 3. that they should never have any power of so doing, which, because the Act it self is not Printed, and is by some, said to be onely a Protestation; I will therefore, for the clearing of it, set down at large.

rConcordia ne trahatur in consequentiam.

Et est affentu & accorde par nostre Seignieur leRoy, & touz les grantz en plein Parlement, que tout soit il que le ditz peres cōe juges du Parlemēt empristrent en Page  8 la presence nostre Seign. le Roy, a faire & a rendre les ditz jugemēts par assent du Roy sur aucuns de ceux que n'estoient pas lour peres & ce par encheson de murdre de Seig. Liege, & destructiō de celui que fut si pres de sank Royall & fitz du Roy que per tant les ditz peres q' ore sont, ou les peres q' ser∣ront en temps avenir ne soi∣ent mes tenuz ne charges a rendre jugements sur autre que sur lur peres ne ace faire, mes ayent les peres de la terre poer einz de ce pur touz jours soient dis∣chargez & quites: & que les avantditz jugementz ore rendez ne soient tret en en∣sample n'en consequence en temps avenir pur quoy les ditz Peres puissent estre charges desore a juger au∣tres que lour peres contre la ley de la terre, si au tiel eas aveine, que Dieu de∣fende.

Page  7

An accord lest it should be drawne in consequence.

It is assented and agreed by our Lord the King, and all the great men in full Parliament, that however the said Peeres as Iudges of Parliament, did undertake Page  8 in the presence of our Lord the King to give and ren∣der the said Iudgements by assent of the King upon some of those who were not their Peeres, and that by reason of the murder of our liege Lord, and destruction of him who was so neere the Blood Royall, and sonne of a King. That notwith∣standing the Peeres that now are or hereafter shall be may be never held nor char∣ged to give judgement on other then on their Peeres, neither shall the Peeres of the Land ever have power to doe it, but shall be for e∣ver discharged and quitted from the doing of it: And that the aforesaid judgments now rendred, shall not in the future be drawne into exam∣ple, or consequence, for the charging the said Peeres hereafter to judge other then their Peeres against the Lawes of the Land, if the like case should happen, which God forbid.

Page  9 9. I professe, for my part, I cannot imagine how it is possible for any thing to be penned more fully, being a plaine Declaration, what they had done was against Law, and a provision for the future: But, because a learned Gentleman hath of late, made an artificiall Dis∣course to blinde the world, and take off the force of this Act of Parliament (for such it was) it will be necessary to examine what he opposeth against it.

1. That this is no Act of Parliament, but a bare Protestati∣on*without the Kings, or Commons Assent.

And yet it is expresly said to be Assented to by our Lord the King, and all the great Ones in full Parlia∣ment: I desire to know, whether any thing can passe in full Parliament, to which the Commons are not Parties: For the being but a bare Protesta∣tion, the Title shewes the contrary, which calls it an Accord, which is, a Compact, an Agreement, not of one party that dissents from others, but of all parties concluding together what the Law is; such a Compact or Agreement is a Law.

That the House of Commons, nor the Commoners then*Iudged, ever demurred or excepted against the Lords Iu∣risdiction, &c.

And yet it is plaine it was Assented unto by the King and Lords, &c. I shall desire to know of him, whe∣ther ever any Assented to that no man desired; Cer∣tainly some excepted against what was then done, themselves could not, for they agreed it should be so no more, it must therefore necessarily follow, the House of Commons, or the Parties themselves did it: and this may serve, For that he saith a little after, that this Protestation was meerely voluntary: it should seeme then the Judgement given by the Page  10 Lords was not voluntarily, the King over ruling them. And this Protest, (if it be no more) is an ex∣ception against it somewhere.

2. The Lords, in that, do professe and justifie their right of being Iudges in Parliament.

Which is not denyed the King and them in some cases, but they doe likewise professe, that it extends not to a Commoner.

3. That this was, that they might not be constrained by the*Kings Command (against their wills) in his presence, to give Iudgement in ordinary cases of Treason or Felony in the High Court of Parliament, against such that by Law might, and ought to be Tryed in the Kings Court at West∣minster, &c. but onely in such cases which could not well be Tryed elsewhere, &c. This is in effect what lie sayes.

To which I am forced to desire him to tell me, what those cases are, that now cannot well be Tryed else∣where; And whether there are now in our Law, any such cases as the Canonists and Casuists call casus reservati: That cannot be Tryed by the or∣dinary Judicatories of the Law, but must have re∣course back to the Legislative power to be ventila∣ted there, ex post facto, our Law being now a better disputed, & more compleat & comprehensive Law then it was in Edw. 3. Raign: This I should be glad to know, from some that understand the Fountain and Reason of our Law as well as the Letter. It is certaine, that for above 200. years there is no ex∣ample of proceeding against any Commoner in the House of Peers but by Act of Parliament, during which time, there was none of those cases fell out, that could not well be Tryed elsewhere, but by Judge∣ment in the Lords House: Whatsoever is an of∣fence, Page  11 is punishable by Law, and ought to be Try∣ed in His Majesties ordinary Courts of Justice. The Statute of Marlebridge provides, quod tam majores*quam minores, justiciam habeant & recipiant in Curia domini Regis: And to think, that any one House, or both (which are not s a full Court without the King) hath power Arbitrarily to punish one no Member of their owne, for that the Law takes not notice of to be a fault; I know not how well it agrees with the rules of Justice, and how farre distant from that so much complained of Arbitrary Power, which I shall never think, a Court of Par∣liament will ever desire to have, or exercise, whose jurisdiction the more high and absolute it is, the more just and honourable ought the proceedings in it to be, and to give example of Justice to other in∣feriour Courts, for their being not constrained to give Iudgements against their wills, &c. That is true, but it is likewise, that they should never have power to doe it, and an affirmance what they had done, was against the Law of the Land.

4. He affirmes, this Protestation to have been made onely against the Lords giving Sentence in Felony and Treason, and in the Kings owne presence, who usually pro∣nounced Sentence Himselfe, with the Lords assent, and did not charge to give it as here He did; not against Senten∣cing, Fining, and Imprisoning any Commoner, for railing and libelling against their Persons, Iurisdictions, and Pro∣ceedings, &c.

All this hath no colour out of the Record, or practice of other times; and it being certain, there was then Crime but onely Treason mentioned in that Act or Protestation, as he calls it, why is it not as well Page  12 to bar their giving Judgement against a Commo∣ner in other Causes, as Felony? which himself confesseth it reacheth to ubi lex non distinguit, nec nos debemus distinguere. For the Kings giving Judgement in Parliament with the Lords Assent, I doe confesse, Judgements there ought to be, pro∣perly and punctually entred as given, tPar nostre Seignieur le Roy que est Soveraigne Iuge en toutz cas, & par les Seignieurs spirituels & temporels avel' assent de les comes de laterre, ou a lour petition, & nemy par les Seignieurs temporelx seulement. That is, [by our Lord the King, who is Soveraign Judge in all Causes, and by the Lords Spirituall and Temporall, with the Assent of the Commons, or at their Peti∣tion.] But it doth not follow, that if otherwise, they are invalid, it being certaine there be many Judgements generally entred as given in the Kings presence by the Lords Spirituall and Temporall, and that not held to be any cause of Exception. Compare Rot. Parl. apud Lecest. 2. H. 5. nu. 16. with Parl. apud Westmin. nu. 13. See likewise the Judgements against the Spencers, 21 R. 2. nu. Rot Parl.

For Lilburnes and Overtons Railing and Libelling against the Persons and Jurisdictions of the Lords; for my part I shall say nothing, having not taken upon me to defend those mens Actions, whom I neither know, nor their carriages, but their Cause, and that too, no farther then as it hath refe∣rence to the liberty of a Commoner of England, be∣ing judged by the Lords. Yet I cannot but say, I have heard they have been great and long sufferers, and by the English proverb, we may give Loosers Page  13 leave to speak, such being the frailty of humane na∣ture, that laesa patientia fit furor. Neither are they alone involved in the case, There is a noble Knight, and four grave Aldermen, who have been Magi∣strates in one of the famous Cities of Europe, who all of them have put out their Protestations in Print, which he found perhaps, more difficult to confute, then to neglect.

But for their refusing to Answer, and contemning the Lords Authority to their faces at the Bar.

To this I must needes say, that for my part, I did never hear that refusing to Answer in a Court, and demur∣ring to the excesses of any Court, was ever reputed a Contempt of the lawfull jurisdiction of that Court: we all remember, when certaine Gentlemen refused to Answer in the Star-chamber, and pleaded against the Jurisdiction of that Court, Yet neither the King nor the Lords excepted against their so doing; And in the end, their demurrer was allowed: It is no contempt to affirme a Court hath not Authority in an especiall case, that is to be determined by the Law, to which every man is to submit: And in a case of Imprisonment, without any limitation of time, certainely the Law ought be very clear that deprives a free-subject of that liberty, is so much to be pri∣sed: And if a Subject may not demurre to the Ju∣risdiction of any Court, every Court may enlarge it's Jurisdiction, and pretend what dormant Rules and Priviledges it pleaseth, upon all occasions, and become a faction of Tyrants over the People, they being disabled to defend themselves from such en∣croachments, and demurre to their Jurisdictions when they exceede their limits: A Demurrer is a Dilatory plea, not a contempt.

Page  14 10. For their appealing from their Iudicature in case of breach of Priviledge, of which themselves alone, and no others are, or can be Iudges.

I answer, the thing now in Question is, whether they have a Priviledge to Judge Commoners: It is said in Master Justice uHuttons Argument, that every Prero∣gative of the King, containes in it self, matter of pre∣scription, (and by consequence, is not against any esta∣blished Law;) So may I say of the Priviledges of either House, that they are such as are not against any Statute Law: And that the continuall practice of all Ages hath made known to the world, but more to themselves, and therefore they are the Judges of them: But if a questi∣on be of their Priviledges, or it be doubtfull whether they can doe a thing or not. Their Judgement is not to be received, tanquam ex tripode, they delivering it not by Inspiration, but by Inquisition; and therefore are bound to certifie themselves by all humane meanes whatsoever, of the truth of every circumstance, as by hearing the Kings Learned Councell; the opinion of Judges, Presidents of former Parliaments, Practice of other Courts in the like cases, and such like.

And this was the manner of their proceedings, x 32 H. 6. when, though the Justices after mature deliberation had among themselves, resolved they ought not to de∣termine the Priviledges of the High Court of Parlia∣ment; Yet the chief Justice shewed, the example of other Courts, on which they grounded their Sentence according to Law: And yet that case was in the point of their Speaker, a principall Member of the Commons, and of a difference between him and the Duke of York, one too of the House of Lords. Neither may they ex∣tend their Priviledges farther then the Law warrants; to Page  15 which purpose there is of late years a notable President, y Henry Lord Cromwell having an Attachment served on him, out of the Chancery, for not obeying an Injunction contrary to the auntient Priviledge and Immunity time out of memory to the Lords of Parliament, whereof the said Lord Cromwell prayed remedy: The Lords having exa∣mined the case in Parliament, in the presence of the Iudges, and others the Queens learned Councell; and upon hearing of their opinions, it not appearing unto them that the said Attachment was warranted by the Common Law, Custome of the Realme, or by any Statute or President of the Chan∣cery, they did order the said Lord Cromwell should be dis∣charged from the said Attachment: Yet with this provi∣so, That if at any time during this Parliament, or hereafter in any other Parliament, there shall be shewed sufficient matter, That by the Queens Prerogative, or by the Common Law, or Custume of the Realme, or by any Statute Law, or sufficient President the person of any the Lords of Parlia∣ment in the like case is or ought to be attached, or is at∣tachable, then from thenceforth, that to take place which shall be so shewed or warranted, &c. by which it is mani∣fest the priviledges of the Lords are and must be regula∣ted by Law, and by the opinions of the Judges and Lawyers, and the practice of other Courts are to be known before any resolution taken. And it may be far∣ther observed, that when any of the Houses have conclu∣ded on a Priviledge without that mature care, it hath not continued; of which, for the Lords House there is a strong President, z 15 Ed. 3. where the Prelates, Earls, and Barons, affirming with one consent that the Peers of the land ne deivent estre aresnez in menez en jugement, si non en Parlement & par lour Peres, &c. The Judges op∣posing, it lasted not long, being taken away, as the prin∣ted Page  16 Book shews the same year, or certainly a the Par∣liament next following: And for the House of Com∣mons to speak of later times, that House having signified to my Lord Keeper, bThat by the auntient Liberties of that House no Member of it ought to be served with a Sub pena out of Chancery: The Lord Keeper did not onely refuse to recall his Sub pena, but told the Messengers sent unto him, he should not submit to any opinion of that House touching their Priviledges, unlesse they could shew the same to have been allowed likewise in Chancery. And of the same opinion was Egerton, 39 Eliz. By all which it is e∣vident the Law and perpetuall Custome must be the foundation of all their Priviledges.

11. Neither the Voting in one or both Houses a right of doing a thing, or the having somtimes exercised what they concluded upon, prove it justly done, or that they have by Law a Priviledge to doe it if stood upon, or that it ought to be. It is now generally held, No Member of either House can be Bayle for any before the Lords, without leave of the House, whereof they are Members: c yet the 13 Rich. 2. the Bishops of Lincolne and Nor∣wich, undoubtedly of the Lords House, and Iohn de Ne∣vill, and Levell, Members, as it seemes of the Com∣mons, did Bayle certain persons during the sitting of the Parliament.

There is no priviledge more certain then that a Mem∣ber of the House of Commons may not on any occa∣sion be molested by Suite: Yet it is clear by the Sta∣tute d 23 Hen. 6. any man may be sued even before the Judges of Assize, on a supposition he was falsly re∣turned, for that Statute limits him that shall be injured to bring his action against the person returned within three moneths: And it is certain some Parl. did then last Page  17 above that time. And e the Knight of Devon was pro∣ceeded against in the House of Peeres, during his being of the House of Commons. But to speak of later times, who would not conclude it a certaine priviledge of the House of Commons, to have called any one of their Members out of the Lords House, and especially the Solicitor; they having done it both to Onslow and Po∣pham, the 8 and 23 Eliz. Yet attempting it * the 31 Eliz. the Lords refused to transmit the Solliciter unto them: The f 2 of Rich. the 2. the Lords affirme, though what was desired by the Commons, had been used in the three last Sessions, yet it was not the Custome of Parliament. By all which it is manifest a thing stood up∣on, sometimes practised and allowed, is not certainly a Priviledge of Parliament, or to have been justly done, if opposed, and this goes very farre in answering all M. Prins Presidents, of which more hereafter.

Lastly, saies he, This Protestation did not foreclose the*Lords in this, or future Parliaments to give Iudgement against Commoners in other Cases of Felony and Treason, even without Commons.

And yet the Act doth expresly say, That as they should not be charged, So they should not at all ever have power to give such Iudgement; And their now doing it should not be drawn into Example for the future.

And thus I have answered all his Exceptions against this Law. Onely where he makes in so few lines two Ex∣clamations against such as hold this a Law, and think to justifie themselves by it, of shewing their non-sence rather then reason and Law, their injudiciousnesse and folly, rather then justification, &c. I am forced to reply, a person of Integrity and Judgement, ought not with such sharp∣nesse raise envyagainst any that defend themselves by Page  18 Law. Nonsence, Folly, and Injudiciousnesse are words of relation, and that which seemes Nonsence to him, may be of great weight in others Judgement. But if any should make an Appeal, whether to affirme (with these men) this is a Law made in pursuance of the Common right of the Realm, and in affirmation of Magna Charta is neerer Nonsence then to call that a Protestation (which by its own nature imports some disagreeing) is in plaine words stiled an Agreement or nigher Folly, then the af∣firming that to have past without the Kings Concur∣rence, he is expresly said to have assented unto: or more Injudicious then to think the Commons not to have been parties to what was agreed in full Parliament, or lesse Reason then to say, that Law not to barre the Lords in future, which clearly provides they should never here∣after have power to judge a Commoner; I do not know, I say, (if any should thus appeal) who could be met with, would not think this Gentlemans Interpretation farther off reason, then the very letter of the Law: Interpretari le∣gem, est dare rationabilem intellectum sive sensum praeci∣pientis, & praecepti. Neither could he any way tearme * this raising, murmuring, or playing the Bethlehem; thus to have his own words, retorted on him: for my part, I am confident the Gentleman would never have alleag∣ed this Record, and many other Authorities I have met with in his workes, had he thought any would have ex∣amined the truth of his sayings, or had he any other way to weaken what must of necessity be inferred from them, but by such viperine glosses. And now it will not be unfit to see this (as it is undoubtedly a Law) how it hath been practist on all occasions, in which he is so confident there is hundreds of Presidents to the contrary of what is pretended by it, viz. That no man (especially claiming Page  19 that right, for if otherwise they may be thought to have submitted to the Triall, vigilantibus & non dormientibus jura subveniunt) being a Commoner ought ever to be tryed otherwise then by a Jury.

12. First, then in the same g Parliament of Edw. 3. Wherein this Statute or Declaration of the Law was made, Sir Thomas Berkley, Knight, in whose Castle Edw. 2. was destroyed; was questioned for the said Murther, and pleaded not guilty, and put himself upon his Country, whereupon there was a Jury summoned to appear, Coram domino rege in Parliamento suo apud West∣minster, in Octabis sancti Hillarii prox' futur. Some two moneths after, who found him not guilty, The Record remembers all the Jurors names, and gives the reasons of their Verdict; (and this is the onely Commoner I ever read of Tryed by Jury in Parliament;) Which as it doth enough prove, the Lords cannot Try a Commo∣ner, but that his Tryall must be by men of his own con∣dition, per pares, so the never being on any occasion at any time after exercised, shewes it ought to have been there, it being certain the King cannot (as here) sit personally to Judge any, in case of Felony and Trea∣son.

In the case of the Genovesa, slaine by one Kirkby, how∣ever the killing him, was adjudged Treason in Parlia∣ment; Yet the proceedings against him that did it, was in the Kings Bench, where Kirkby was Tryed by h a Jury, and found guilty.

So likewise in that himself i alleages, 17 Rich. 2. in the case of Thomas Talbot, however the King and Lords adjudged the case Treason; yet for his Tryall, he was onely to render himself into the Kings Bench, there to remain till it should be ordained, par advis du Roy & son Page  20 conseil, how he should be further proceeded against, which was not in Parliament.

In breach of Priviledge, they have not heretofore took upon them to Judge a Commoner, otherwise then to seek a Law for the punishing of him, k 5 Hen. 4. Richard Cheddre, a meniall Servant of Sir Thomas Brook comming to the Parliament, was wounded by one Iohn Sallage or Savage, the Commons nor the Lords never at all goe about the punishing the said Savage, but peti∣tion the King would be pleased to ordein such sufficient remedy as may terrifie others, viz. 1. That if any kill'd or murther'd one so comming (as an additionall to what he was by Law to suffer) he might lose his hand. 2. But if he wounded or beat any, that he should be imprisoned a year, and sined to the King. 3 That His Majesty would absteine from granting any Pardon without the agreement of the Party. But to these the King doth not consent, and allowes the offender his Tryall in the Kings Bench, as is to be seen in the printed Book.

The gentleman l cites this President, & I entreat him to peruse the Roll again, and tell me if there can be pos∣sibly one more punctuall against the Lords judging a Commoner. A servant attending a Member comming to Parliament is wounded; The Lords and Commons doe not so much as attempt to Try and Censure the doer of it; and the Judgement given, is by Act of Par∣liament, lesse then what both Lords and Commons hold but sufficient: And the Party is allowed his Tryall by Jury, in an ordinary Court of Justice.

13. The 28. Hen. 6. The Commons impeached the Duke of Suffolk who waived his Peeres, and the King gave Judgement but during the sitting of that Parlia∣ment: The Lords being assembled in the Star-chamber Page  21 in m Councell, the 28 of Novemb. Will: Talboyes Esquire, and others arrayed with Iacks, Salets, Swerds and Glaives, in manner of Warre attempted to have slaine one of the Lords of Parliament, and of His Majesties privy Councell there Assembled, which being one of the most odious riots had been seen in the Kings time. The Commons then sitting, declare their detestation of the fact, and impeach the said Talboyes, and desire he may (being then imprisoned in the Tower of London) remaine there for 12 moneths, and to answer the same in His Majesties Court in presence of his Justice; but the thing desired, being not altogether according to the course of the Common-law (the Subjects undoub∣ted birth-right) was denied by the King, and stopt; and no proceedings against him in Parliament ever thought on.

I should be tedious to repeat the Examples of Mur∣thers, Riots, Rapes, and other misdemeanours complained of in Parliament; and yet the Lords not at all attemp∣ting to Judge the offenders being a Commoner, but * onely to provide a faire Tryall should be had in the Kings Bench, or other ordinary Courts of Common-law against him, and sometimes by Statute, desire to increase the punishment at the Common-law, which had been vain, had it been in their power Arbitrarily to have censured the Offender. Such as would see them, may amongst others, read Rot. Parl. 13 Rich. 2. nu. 11. 11 Hen. 4. nu. 37, 38. 11 Hen. 6. nu. 12. 43. 15 Hen. 6. nu. 13, 14, 15. 18 Hen. 6. nu. 28. 23 Hen. 6. nu. 42. And here I thought to have ended the Presidents I have observed in this case, but that of Cambridge comes so fit, that though it have been touched by others, for∣merly, I cannot but set it down somewhat more fully.

Page  22n Unto Rich. 2. There was a great complaint in Parliament against the Major, Baylifs, and Cominaltee of Cambridge, for some complyance in a late commo∣tion against the University; the Commons of that Town in their defence, by their Councell plead against the Jurisdiction of the Court, Que ceste Court n'ent doit avoir coniscance ne Iurisdiction: The Lords moved, * affirme, if they will give no other Answer, they will proceed against them, as men that know not what to say.

In the end a middle course is taken. The Major and Citizens submit themselves to the Kings Ordinance, touching onely their Franchises, by vertue of which submission, the King, by the assent of the Lords, seized the Franchises of the said Town: And in the end, com∣mitted to the Chancellor and Schollers, the cognizance and punishment of defaults, in the Assize of Bread, Wine and Beer, and of Flesh, Fish, &c. And the rest of all the Franchises bestowed on the Major and Bayliffes againe: This Ordinance gave no content to the Commonalty there, who often molested the Schollars, indicting them on true, and sometimes on feined pretences. Where∣upon the Chancellor and Schollars, about 7 yeares after, * framed a Petition to the Parliament against them, which was sent down to the Major and Bayliffes of Cambridge, commanding them to appear before the King and His Councell, the next day after Candlemas, with sufficient instructions and power to Answer all things, for the Cominalty there, under the Common-seal of the Town; At which time the Major and Bayliffes came into Par∣liament, but the Cominalty would not give them Au∣thority to answer for them; whereupon nothing was done, of which contempt there is no question but we should have found some prosecution in that, or some Page  23 following Parliament, but that not submitting the Lords knew, they had no power to Try and Judge them being Commoners.

14. And to speak seriously, if the Lords may Try a Commoner, they may Judge any mans title to his Lands, for no Law limiting the extent of their power, but that being Arbitrary, it may reach to all causes whithersoever they will stretch it, and so Westminster Hall sit quiet; And the Subject of England hath not de∣sired an illimited power, no, not in the two Houses, and have therefore moderated Parliaments, that they should not subvert the Lawes of the Land. See 1 Hen. 4. cap. 14. 4 Hen. 4. cap.3. sometimes by expresse words, determining that some things cannot be done in Parliament, as that any should be impeached there, of that concerns his Franktenement or hereditament, &c. Rot. Parl. 10 Hen. 6. nu. 35.

And as there is no limit of their power, so being di∣rected by nothing but their will, either in judging what is an Offence, or punishing of it, they alone, or with the Commons, may alter the Law, for ubi non est lex, non est transgressio, Rom. 4. 15.

And if they can question and punish a man at their wills, for that is neither Malum in se, nor Malum pro∣hibitum; that is, for that is no offence either by the Com∣mon or Statute Law, a man may suffer by Fine, Impri∣sonment; or farther, for that the Law takes no notice to be an Offence, which is contrary to Magna Charta, cap. 29. and a plain change of the Law, which cannot be made but by the King, and the three Estates in o Par∣liament.

15. Having thus shewed the Antiquity, continuance, Page  24 inconvenience, if otherwise of this Law, There remaines onely to answer some presidents the Gentleman hath alledged, as if the Practice had beene alwayes othrewise; of all which, though I might affirme with my Lord Cooke in Slades case, lib. 4. fol. 94. that being never questioned, nor confirmed by Judgements given when the case was stood upon, they ought not to be regarged, yet I shall shew him, not one of them is at all to purpose, every circumstance considered. His first then is, pthat of John Hall, who killed the Duke of Glocester at Calice, whose case yet he confesseth was not Tryable but in Parlia∣ment.

16. Whether the King & Lords had not cognizance of the fact of a Commoner so hainous, not Tryable by the Cōmon Law, as this was not, is a question I wil not now dispute; That being absolutely taken away by q Statut. Besides, I am not satisfied, this was not by Act of Parlia∣ment with the Commons consent; for at the end of the Roll, they thank the King for his just Judgement, who, yet never is read to have shewed it unto them, (as indeed it was not then usuall.) But I shall aske the Gentleman whether he will justifie all the proceedings in that Cause, as standing with the Common Justice of the Realme. Certainly it would be now by many thought very hard, for a person in custody to be first examined privately upon his own Oath to accuse himself, and then without being further proceeded with by Law, to have the Judge∣ment in effect, of a Traitor, for killing a Person appa∣rently not within the Statute of 25 Edw. 3. doubtlesse (so farre as it appeares to me) this may be one of those Presidents, whereof Sir EdwardrCooke aufereat obli∣vio si potest, si non, utcunque silentium tegat; Of which Page  25 opinion the Commons it seemes were, who, however they let it then passe, (he not pleading the priviledge of a Commoner) yet took care it should not be so any s more. And it is observable that they desire no such Accusation should be received in Parliament, but in His Majesties other Courts, Come ad este fait & use anci∣ennement en temps de vos tres nobles progenitors, &c. Which affirmation is indeed, as much as is stood upon, viz. That it was not the use to try a Commoner in Parliament.

17. His second proof, t 1 Hen. 4. nu. 79. Where the Commons affirme Iudgements in Parliament pertaine one∣ly to the King and Lords, &c. You may see the record at large in his book, pag. 37. and M. Lylburnes, called the Lawes funerall, pag. 16. and sets in the Margint nota, and pag. 38. That it is so full and punctuall a Par∣liamentary decision, as is uncapeble of any answer or evasion.

To this, if I should answer, that it was no Act of Par∣liament, and therefore bindeth not in succession, nor is now by consequence of any force; I followed no lesse Lawyer then Sir Edward Cooke, but I confesse, that pas∣sage * seemes to me a Declaration of what of right, did in any Parliament belong to the Lords and Commons, and therefore to be more then temporary. I shall there∣fore say, that this President must extend onely to such things, which were of the cogniscance of the Parlia∣ment, and proper for that Judicature, not of things did no way at all appertain unto that Court, Rot. Parl. 13 Rich. 2. nu. 10. after hearing a very long case, the Record notes, Ysembla as Seignieurs du Parlement que la dite petition n' estoit pas petition du Parlement einz Page  26 que la matiere enycelle compris dent este tryepar la come ley. Certainly they seeme not to have been Judges in that case, nor in another Petition, Rot. Parl. 16 Rich. 2. nu. 32. To which the Answer is, Suent a Roy purce que ceste petition n' est pas petition del Parlement, Rot Parl. 10. Hen. 6. nu. 35. The Commons affirme matters tou∣ching a mans Inheritance, are not examinable in Parlia∣ment, and 32 Hen. 6. nu. 27. a President himself re∣members, page 51. it is expresly said, Actions at Com∣mon-law be not determined in the High Court of Parlia∣ment. By all which it is manifest, those words that Judge∣ments perteine to the King and Lords, must be under∣stood of such things whose decision is proper and per∣teine legally onely to the Parliament, such was that, 27 Hen. 6. nu. 18. touching placing the Lords in Parliament, and that was given 1 Hen. 4. in Parliament against the King himself, of which the Commons seeme to have had no knowledge, 1 Hen. 4. nu. 145. which, when the like came again in question, Rot. Parl. 39 Hen. 6. nu. 12. in the case of the Title of the Duke of York; The Lords in Parliament charge the Iudges sadly to advise touching it, who the 20 of October Answer; That they were the Kings Iustices to de∣termine matters in Law, between party and party; That this was above the Law, and passed their Learning, that the decision of it perteined to the Lords of the Kings blood, and the Peerage of the Land, and therefore they desired to be excused of giving Councell in that matter; Now indeed in such cases I shall not deny, but the King and they may be Judges: Yet whatever that privi∣ledge is, in judging, when they make a Law to binde the Subject, concerning any thing of that nature, Page  27 to that the Commons are parties, as well as the Lords. See 7 Hen. 4. cap. 2. 25 Hen. 8. cap. 22. 28 Hen. 8. cap. 7. 35 Hen. 8. cap. 1.

18. To his next president of 17 Rich. 2. nu. 20, 21. * touching Tho: Talbots conspiring the death's of the Dukes of Lancaster and Glocester, I have Answered be∣fore, nu. 12. That it was by the Lords onely referred to the Common-law.

19. His next president is that of the Earl of Nor∣thumberland,* 5 Hen. 4. nu. 12. which being no Com∣moner, is nothing to the purpose, as himself conses∣seth, page 29. and page 41. Onely touching the Prote∣station of the Lords, it is apparent, they then had an opinion, the King would have tryed him a Lord by the Judges, without them who were his Peeres: And for the Kings giving Judgement against Henry and Thomas Percy, he well knowes there was no person then Judged, or brought into Judgement, onely an opinion of the King and Lords delivered upon a desire of the Arch∣bishop of Canterbury: who conceived himself and the Duke of York in some suspition of having adhered to Hotspur, and the Earl of Worcester, whom the Earl of Northumberland (then newly cleared by them) did free, from having had any complyance with them. Yet so as the King and Lords did affirme the warre formerly raised by them should be held Treason. So indeed judgeing no man, but delivering an opinion, that a War raised by two, whereof one was slaine in Fight, the other beheaded the next day at Shrewesbury, should be held Treason, of which there was little que∣stion.

His next President is that of Weston and Gomenis, to *Page  28 which, though I have answered before, nu. 15. in the case of Hall, their offences having been committed be∣yond the Seas, and therefore not Tryable by an ordina∣ry way in England, and now taken away by Statute: Yet it is apparent, that Judgement was an Act of Par∣liament, passing at the request of the Commons, by the assent of the Lords, and stopt till the King could be in∣formed.

20. His next is, that of Alice Perers, against whom Iudgement of Banishment, and forfeiture of Land, was*given by the Lords without the King or Commons. This is the onely President that hath most colour of truth, and to his purpose in all his Book: And whether she a person that laboured then under the publique hate, for her many leud carriages, might not have somewhat acted against her, not fit to be observed at other times I cannot tell, it appearing u by record, the Law (on which that Judgement was grounded) x of the 50 Ed. 3. did passe without ever calling her to answer. But for my part, I doe affirme this was an act of Parliament, That the King was party to the Judgement, is y clear by nu. 43. Et est l' intention du Roy & des Seignieurs, & ore ordeignez & assentuz en mesme le Parlement, &c. The Question then is, of the Commons, of whom there appeares nothing in the Roll; but if there be not, it doth not follow they did not assent unto it, and so made it a compleat Act. Many things doubtlesse, past formerly in Parliaments, which are not found Re∣corded; And some Statutes to this day Lawes, are no where enrolled, of which see Sir Edward Cooke, Instit. 4. pag. 51. But for the Commons being parties to this Judgement, it is so certaine as Walsingham, who then Page  29 lived, relates, it was expresly at their pursuite. zIn eo Parlamento saies he, fuere péne omnes milites cum Petro de la Mare, &c.—hii itaque resumentes petitiones suas eo loco quo prius dimiserant, institerant pro bannitione illius Aliciae Peres, &c.—quae quamvis plures ex dominis & omnes legis peritos Angliae pecunia corrupisset.—Dili∣gentia tamen & sapientia praedictorum militum ore suo convicta proscribitur, omnibus bonis suis mobilibus & im∣mobilibus, fisco Regio judicatis, which relation agree∣ing with the Record in every thing, but where it is more full, there can be no doubt of the truth of it, nor that this was other then an Act of Parlia∣ment.

21. The next President is of some who delivered * Burbugh Casttle in Rich. 2. time, but this he insists not upon, as indeed it makes not to the purpose, and may re∣ceive the same answer, Hall, Weston and Gomenis before did.

But for Sir Thomas Mortimer and Sir Iohn Cobham it is certaine, the Commons did not onely Impeach them, but joyned with the King and Lords in all things concer∣ned them. Insomuch as though the Lords had Accu∣sed in that Parliament severall Lords, Yet the Com∣mons in Parliament a Impeached and joyned in whatsoever was done against any Commoner; So that nothing past but by the concurrence of the King and the three Estates, which is an Act of Parlia∣ment.

22. For the Fining and Imprisoning of Walter Sibel* of London, for b slandering the Earl of Oxford; that is true, but before they did so, the said Sibel, gratiae domini Regis humiliter se submisit, and refused to prose∣cute Page  30 his accusation against the Earl, upon whose sub∣mission this Sentence passed, as that before of Cam∣bridge, nu. 13.

23. For that of Iohn Cavendishc accusing Mi∣chael de la Poole, Chancellor of England, whom the * Lords put over to the Judges. It is certain, if the Lords have power to Fine and Imprison a Commoner, they cannot delegate it to the Judges; nor they, who are the Kings Agents in administration of Justice, Fine any man as Deputies to them, but in doing so, must proceed after an ordinary course of Law; and therefore, either that Record of 7 Rich. 2. is imperfect, or it was done as the former, upon Cavendishes submission, who did in part deny his first Accusation of the Chancellor himself, turning it onely on his Clark. And for the Lords Fining a Commoner, I am confident, there never was any one penny paid, unlesse voluntarily, of any summe so imposed by them, though perhaps they may at some time have attempted the doing it, which I doe the ra∣ther assure my self of, because the House of Peeres ha∣ving an intent really to punish by d Fine, certain Mem∣bers of their own House, for negligently attending there, (a e thing certainly proper for their cogniscance) they attempted no meanes to lay so small a summe as an 100l. on an Arch-bishop, and Duke an 100 markes, on every Bishop and Earle, excepting three, and four∣ty pounds on every Abbot and Barron, but by Act of Parliament, nor to levy it but by expresly pro∣viding in that Act, those summes should be raised on their lands, and goods by processe out of the Ex∣chequer: From whence I cannot but inferre that if they would not venture (conceiving it would be Page  31 stood upon) the Fining a Lord for a default punish∣able by the Lords House, but by an Act, which ex∣presly tooke care how it should be come by, much lesse are they alone by Law left at large in their Cen∣sure of a Commoner, or have any power to levy any summe they set on him.

But, where he sayes the Lords in this case had witnesses examined upon Oath before them. I am not resolved, the Chancellours Clark protesting his Lords innoceny, fSur. non serment, and others ex∣amined, Sur lour liegeances a dire verite, doth neces∣sarily inferre the giving an Oath but if any thinke otherwise; I will not contend. No more then for his last President, that the King and Lords (for so is the g Record, not the Lords alone, as by him Cited) might not commit a Commoner perhaps for some small time, for slandring a Peer: The Que∣stion is not whether they have done it, Malto facta sunt quae si in judicium vocentur fieri non debent. Be∣sides, I am not satisfied, but the King and His Coun∣cell (which none can deny the Lords to be) might by the Statute, 12 Rich. 2. cap. 11. on his con∣fession, as it seemes this was, imprison a man for slandering a person of that esteeme the Arch-bishp was; and thus I have done with all his elder Presi∣dents.

24. For those of the 18 Iocobi and since: I will onely say, that the course of Trying men in the Lords House, having layen asleep (if ever practist) for about two hundred yeares, then firfi renewed, many might be ignorant of their owne right, nor know how to plead to it: And it is certaine some Page  32 of those Presidents he mentions, have never been exe∣cuted, neither were they done without Kings Concur∣rence; in so much as all was done by an united Vote if put in execution.

Another President I have met with, is, that it ap∣peares by h 6 Rich. 2. cap. 1. Stat. 2. that certaine men were Indited, Arraigned, or Appealed of High TREASON in Parliament next before: And therefore, that it is plaine Commoners may be Tryed even for TREASON in Parliament. But it is cleare, there is no such thing can be gathered, either by the Prin∣ted Act here spoken of i or by the Roll of either Parliament, on any thing else, more then, that there was a Pardon then granted to severall persons, and these words in the Point, As in the same Parliament is more fully contained, must have reference to the pardon granted, which doth appeare in the Roll, not to the Arraigning, which is no where found in it.

There may now be expected that I speak some∣what; If a Subject should be opprest by an illegall Sentence of the Lords, how he is to be rectified, for non debet esse defectus Iusticia; and for any Court Spirituall or Temporall exceeding their power a∣gainst any Statute. In the like case a Prohibition or Supersedeas out of the Kings Bench, lies; though the STATUTE provide not that remedy. Com∣pare Articulii super chartus chap. 3. 417. with the Register, fol 185. 187, &c. But this being a Supe∣riour Court, is a greater question, in which there will fall out a great dispute, how farre, and in what sense the two Houses are, the High Court of Parliament, Page  33 which I intend not at this time to enter into, but will conclude, remembring that true advise of Master Prinne; That who shall so suffer, shall have the com∣fort of a good Conscience to support him; and God, no doubt, will in his good time finde some meanes to re∣lieve him.

FINIS.