I. THat the Judges may set forth and de­clare, whether the Inhabitants of this kingdome be a free people, or whether they be to bee governed onely by the antient common lawes of England.

II. Whether the Judges of the Land doe take the Oath of Judges, and if so, whether under pretext of any Acts of State, Proclamation, Writ, Letter, or direction under the great or privie Seale, or privie Signet, or Letter, or other commandement from the Lord Lieute­nant, Lord Deputie, Justice, Justices, or other chiefe Governor, or Governors of this King­dome [Page 2]they may hinder, stay or delay the suite of any Subject, or his judgment, or execution thereupon, if so, in what cases, and whether, if they doe hinder, stay or delay such suite, judge­ment or execution, what punishment doe they incurre by the Law for their deviation and transgression therein.

III. Whether the Kings Majesties privie Coun­sell, either together, or with the chiefe Gover­nor or Governors of this Kingdome, without him or them be a place of Judicature, by the common Lawes, where in case betweene party and party for Debts, Trespasses, Accounts, Covenants, possessions, and title of Land, or a­ny of them, and with them may be heard, and determined, and of what civill Causes they have jurisdiction, and by what Law, and of what force is their order or Decree, in such cases or any of them.

IV. The like of the chiefe Governors alone.

V. Whether Grant of Monopolies be warran­table by the Law, and of what, and in what Ca­ses, and how, and where, and by whom, are the Transgressors against such Grantees punish­able, [Page 3]and whether by Fine and mutilation of Members, imprisonment, losse, and forfeiture of goods, or otherwise, and which of them.

VI. Jn what Cases the Lord Deputie, or other chiefe Governors of this Kingdome & Coun­sell, may punish by Fine, imprisonment, Mu­tilation of Members, Pillory, or otherwise, they may sentence any to such the same, or the like punishment, for infringening the com­mands of any Proclamation, or Monopolie, and what punishment doe they incurre, that do vote for the same.

VII. Of what force is an Act of state or Pro­clamation in this Kingdome to bind the liber­ty, goods, possessions, or inheritance of the na­tives thereof, whether they or any of them can alter the common Law, or the infringers of them lose their Goods, Chattels, or Leases, or forfeit the same by infringing any such Act of State or Proclamation, or both, and what pu­nishment doe the sworne Judges of the Law, that are privie Counsellors, incurre that vote for such Act and execution of it.

VIII. Whether the subjects of this Kingdome be subject to the Marshall Law, and whether any man in time of peace, no enemy being in the fields, with displayed can be sentēced to Death, if so, by whom, and in what cases, if not, what punishment do they incurre that in time of peace, execute Marshall Law.

IX. Whether voluntary Oathes taken freely before Arbitrators, or others for affirmance, or disaffirmance of any thing, or for the true performance of any thing, be punishable in the Castle-Chamber, or in any other Court, and why and wherefore.

X. Why, and by what Law, and upon what Rule of policie is it, that none is admitted to reducement in the Castle-chamber, untill hee confesse the offence for which hee is censured, when as Revera he might be innocent therof, though subordined proofes or circumstances, might induce him to be censured.

XI. Whether the Judges of the Kings Bench, and by what law, doe or can deny, the copies of Indictments, of Fellony, or Treason to the par­ties [Page 5]accused of Treason, contrary to the statute of 42. Edw. 3.

XII. Whether the statute of Baltinglase take from the Subjects, out-lawed for Treason, though erroniously, the benefit of his Writ of Er­ror, and how, and by what meanes, that blind clause not warranted, by the body of that Act came to be inserted, and by what Law is it countenanced to the diminution of the liberty of the subject.

XIII. What power have the Barons and the Court of Exchequer, to raise the respite of homage Arbitrarily to what value they please, and to what value they may raise it, and by what Law they may distinguish betweene respite of ho­mage, upon the diversities of the true value of the Fees, when as all Escuage is the same for great and small Fees, and the apportionable by Parliament.

XIIII. Whether it's censurable in the subjects of this Kingdome, to repaire into England to ap­peale to his Majesty for Redresse of Jnjuries, or for others their accusers, if so, why, and in what condition of persons, and by what Law.

XV. Whether Deanes and other Dignitaries of Cathedrall Churches, be properly de mero jure donative, by this King, or not elective or colla­tive, if so, why, and by what Law, and whether the confirmation of a Deane de facto of the Bishops Grantee be good, and valid in the Law, or no, if not, by what Law.

XVI. Whether the issuing of Quo Warranto's a­gainst Burroughes, that antiently, and recently sent Burgesses to the Parliament, to shew cause why they sent Burgesses to the Parliament be legall.

IT was equall care and policy in our Prede­cessours. First to lay a foundation, and then by a continued industry to build and per­fect so glorious a fabrique as the house of Cō ­mons lawfull summoned by the Kings writ re­presents it selfe unto us at this day. In which so elaborate and exquisite a structure being fi­nished and crowned with those fruitfull and peace-speaking events, may challenge by right the title of a Jubile.

To so great a modell with neate and pro­vident husbandry they intend no lesse then su­table furniture (which allowed pride) disdaine to cloath it with any other, but with what by his Majesties favour they had procured out of his owne store; J meane those great and large priviledges, which by severall acts of royall fa­vor have bin dispensed, annexed, nay hypostati­cally united, to the same Priviledges are the soule, by which we move the Sinues and Ne­rues, by which we are compacted, they are thē, by which we breath Priviledges for their birth allyed to the Kings Prerogative, for their anti­quity sacred, for their strength so re-intrench­ed by cōmon law, fortified by statutes, inscon­sed by precedents of all times, that no man ever attempted their violation with impunity, so that now and then it may be truly said, The Kings house is all glorious within. If we which are Heires to their lawes, is unto their lands, will strive to make no addition to the rich invent [...]ie of those priviledges they have bequeathed▪ [...]to us, yet with united spirits, let us all least prevent the dilapidation; nay the diminution of the least of them.

This present occasion of debating Mr. Fitz-Gerralds petition exhibited to this honorable house, sets before us blessings and cursings, and is the first leafe (as we may terme it) of the house of commons Almanack, not made to [Page 9]serve for one, but for many yeares, and calcu­lated to serve indifferently for all latitudes, in which, our carriage makes this and all succee­ding dayes but sevill and working dayes, or o­therwise imprints this day and our priviledges in a conspicuous, plausive rubrique to posteri­ty; whilest the Palladium was in Troy, neither the power nor the long siege of the Grecians, could prevaile against it, whilest Minoes pur­ple lockes curled from their native roots, Cree­te was unvanquished. The Morall of these (af­fictions) emphatically preach and teach us this Doctrine, that the safety, pregnancy, glory, and strength of this house, is but only sent us upon this condition, whilest we keepe, preserve, and defend our liberties, our rights, our priviledges unbetrayed, unsuppressed, and uncontrolled: if any more allyed to the corruptiōs of our own distempers, then challenging an interest in us by a legitimate birth, could involve this grave and great assembly, in such epidemicall litur­gie, as directly to snore, or at lest to wink whilest our priviledges cloathed in a purple robe of glory (like a word never to be recalled) escape from among us, I say if ungratefull, I should cut off the inheritance of these immunities entailed vpon us, and confirmed is a monumentall portion vpon this younger brother of state, this House of Cōmons what can we expect, but that our Fathers Ghosts apparetted with indignation, should [...] unto [Page 10]us with this or the liking branding phrase. Most vngratefull and vnfortunate posterity. O aetas parentum pejor Avis; better had it bin for you not to live then to out-live your owne infamie. If there had beene a necessity, you should involve your selves in a general-guilt, the election ought to have beene of such a one as might have dyed with your selves; but this like originall sinne, binds your posterity to sigh for a redemption. Did we bequeath un­to you those faire ornaments to be stolne or snatched from you? Oh, where, where was your vigilancy and boldnesse to present so dis­asterous and fatall a consequence. Did wee with no better successe of imitation by your labour, and even unto hoarsenesse contend in the Parliament held 39. Hen. 6. as Prophe­cying your weakenesse, leave you a record to build upon? Where we admitted and pri­viledged one Walter Clarke a Burgesse of Ch [...] ­pengham, though at that time in execution ad sect. Reg. Did we for this purpose recommend unto you Ferrars case and our proceedings a­gainst the disturbers of his right? Did wee for this purpose recommend unto you Belgraves case 43. of the Queene. Who notwithstanding he procured his election in Winchester by col­lusion, yet Mangre the great opposi­tion raised by the Earle of Huntington upon the sight of the Sheriffes returne (a [Page 11]sufficient amerment to satisfie vs) we admitted and confirmed him in the protection of our house, did we for this purpose exemplifie unto you the case of Richard Chidder, 5. Henry 4. who being arrested in his journey towards the Parliaments (where note that the date of the election is the date of the priviledge.) They are twins of one birth, wee ingraft him as a twig to be writh'd by our common roote, and quickly lopt off that so perilous authority wch would prunne our branches. Nay Mr. Speaker, our fellows labouring Parliament in England, with their hearty cōmendation have transmit­ted unto us a precedent from each house. The house of the Lords opening the gates of the Tower to prepare an entry to the censured Bi­shop of Lincolne, and the house of Commons with like imitation & likesuccesse having per­formed the same in Sir Iohn Elliot and innume­rable others. But now I will endeavour to al­lay the distempered spirits of our Fathers, whilest with more patience and duty we at­tend the modest corrections of our indulgent King. And so exeunt Patres; and Intr. H. 8. in his owne person commending the reso­lution and zeale of the house of Com­mons in preserving the lustre of their ownē Priviledges from being Eclipsed, al­ledging himselfe to be interessed in them, since that hee and they, knit together, com­pleated [Page 12]one body, who in this out deserved ca­lamities, would not rather imitate us by scoss, then qualifie our untimely repentance by ab­sence of our owne murdering wrongs. What may not E. 4. exprobrate unto us, who in the 3. yeare of his raigne, records his regall pleasure to posterity? That all Acts, Suites, judgments, censures & qui dicit omne excludit nullum, a­warded against any Member of Parliament, should be utterly void and frustrate, crowning the Act with an Emphaticall epiphonema and this act to endure for ever. And surely com­mon reason is pregnant in the justification thereof. That where the publique service and good is primarily intended, a supersedeas must issue to private respects, since they cannot stād in competition, & inhabit our spheare: If their judgments are not yet calmed and setled, be­hold his Majesty, that now is, cloathed in his royall Robes, and thus speaking unto you from underneath his state, Gentlemen, why stagger you thus, that are your selves the pillars of the commonweale, you are not upon breaking the Ice, nor bound upon the discovery of the un­knowne world, each leafe reports your prece­dents that are like Maps that secure and expe­dite your fortunate Navigation. From mee you can expect no more satisfactiō, then what J have declared in the 3. yeare of my Raigne, in answer to the Petition of Right in Parlia­ment, [Page 13]that J am interested in the maintai­ning of the Priviledges of this House, being a maine pillar of the liberty of my Subject, the goods of one [...] being seised in my name, and for my use, for denying. Tonnage and pondage, they re-assumed, hee being at the time of that seisure a Member of the House, and whether J distasted, sure J am, J had no redresse. As for the tender care of my interest in the Fine of 10000 l. and that you admit­ted my Attorny generall to a favourable hea­ring in my behalfe, though against your selves (a Parliamentary custome not to be written in small Print) I thanke you Gentlemen, yet I thinke you know, as well as I, that these great sounding Fines to me, have in their effects, but short and little accounts, if there be 3. bags, the little one is mine: The 5000. l. dammages to the party (a summe equall) or more to the defendants estate) is as much as Magna Charta, by those words of falvo contenem [...]nto, would warrant. Therefore my Judges, by dividing it, might have considered me somewhat, whereas now the old proverbe binds me, where there is nothing left, the King loses his right.

Now Mr. Speaker, in a Parliamentary way, wee must withdraw and enter into our owne Spheare. Enter into a discusse of those ob­jections, that impugne Mr. Fitz-Gerralds e­lection, admittance and priviledge of this House.

The first that ushers in the traine, is a sen­tence cloathed in sable, standing on tip-toe, and with a rustie dagger thrusting at a starre, I meane a sentence speaking error, a sentence vi­siting the third and fourth generation, a sen­tence striving to leap over the bounds of mag­na charta, thirty times confirmed, a sentence a­warded against a Judge of a higher Court, then from which it issued. The cause in question is to nullifie this sentence, which if hee appeare a person capable of his priviledge, mote sua vi­vit, and then neither it, nor any thing deriva­tory, or collater all to it, may bee admitted a­gainst him by the rules of common, civill, or cannon Law, it being a maxime consonant to them all. Non potes edduci ejusdam rei excepie cujus petitur dissolutio. Now to prove this sen­tence void (Mr. Speaker) I being no professour of the Law, yet a Disciple of reason, and the body of the audient Subject to the like [Page 13]guilt: I will couch myselse in argumēts, quae pro­bat & non probantur, leaving precedents and Booke-cases to the learned long Robe: Then thus I argue. By the Stat. 3. E. 4. All judgemēts, censures, sentences, &c. awarded against a mem­ber of Parliament are void, so was this govern­ment: some may say, the King is not here in­cluded, I say (qui dicit omne, excludit nullum) And experience, the mother of know ledge, tea­cheth the same in precedents afore rehearsed, and one J will adde for all, which is Trewman, 38. Hen. 8. who was in execution upon a writ of exigent after a Capias adsatis faciend. at the Kings suite, and yet priviledged, besides, this is not at the Kings suite, for the King is interessed here but secondarily both in name and profit. Now I must make good my minor, that he is a member of this house: hee that was duly e­lected and truely returned, is a member of this house, so was he. Ergo, &c. My minor will be questioned, J confirme it thus, where the Kings writ for election is duely pursued, ac­cording to the most vsed and received forme, there such an election is good, so was this. Ergo. Here (Mr. Speaker) falls the weight of their objection, which we will master, and answer with equall speede, and first vellicat mihi aureum nescio quis, and [Page 14]sayes the writ is Burgenside Burgo, but he is not Burgensis de Burgo. First I say quomodo constat, here is none to offer in proofe he is not so, be­side I offer it in Quaere, whether the election doth not ipso facto make him a Burgesse, & in omni instanti, againe I say the writ is directive not positive. v.g. in a venire facias, the Sheriffe commanded to returne 12. yet if hee returne not 24. he shall be fined, in respect ex­perience and practice proves, some of the 12. may be questioned and challenged: besides the writ explains it selfe, the Knights must be Comi­tatus tui, but the Burgesses and Citizens dequa­libit Civitate & Burgo, which can admit of no other cōstruction, but these two Burgesses out of every Burrough (& not as Comitattus tui, is, which were then of every Burrough, and cer­tainly the Law provided this with great reason as not doubting every Sheere could afford ▪ Knights, resident, yet jealous, whether every bur­rough could provide 2. resident Burgesses qua­lified with these necessary adjūcts, as could be­fit a member of so noble a place; Againe the writ commands duos milites, and yet excepti­on was never takē upon retorning of Esquires, so that the writ expounds it selfe, it is not li­terally to be taken. Next there is Thunder and Lightning shot out of the Statute, 33. H. 8 be­ing a Stat. to regulate election, and absolutely commanding every Knight and Burgesse to be [Page 15]resident and have a certaine Fee-simple in e­very burrough and County, our of which they are elected; Here they suppose our Priviledge will cry quarter as ready to be murtherd by the Statute, but it is ominous ante victoriā cane­re. For first, we answer, that the disuse of a Statute antiquates a Statute, as is observed up­on the Statute of Merton, and custome applau­ded by fortunate experience hath in all Parlia­ments ever prevailed; a house of Commons would rather present Babell in it's confusion, if the Tincker would speake his Dialect, the Cob­ler his, and the Butcher conclude a greasie E­pilogue, then the writ were well pursued, these were J donei homines to take & give counsell de rebus arduis; but even to cut off the head of their owne argument by a Sword of their own, this Stat. of 33. H. 8. see mes by the pream­ble to be made in repeale of all former Statuts, by which, election not qualified with residen­cie, was made void, and so became a greevance to the Common-wealth, & therefore this Sta­tute makes the election not observed ut supra, onely penall, so that there is nothing offered in objection, either from the writ or Statute to avoid this election. Now I have placed him & daily elected him, and then his priviledge growes by consequence, but yet we have other objections minoris magnitudinis, & to repeate them is to confute them; First say they eve­ry [Page 16] Libelleris, de jure, excōmunicated; J answer, every Libeller must be Scriptis; Pictis, or Can­tilenis, our member is guilty of none of them, no, he is not termed, so neither in the censure, nor in any present proceeding. Another flourish is, that hee pleaded not his pri­viledge in the Castle-Chamber, in which very objection, they confesse him priviled­ged, and make themselves guilty, that they would proceed against a knowne member of our House. But see the Roman Spirit of Mr. Fitz-Gerald, who would rather undergoe the hazard of being a Starre-chamber Martyr, then to submit our Priviledge to an extraju­diciall debate. It was in our honour hee did this, and for his eternall applause: some body sayes the castle chamber will thinke it selfe in­jured, there being Lords of the house of parli­ament at & in the censure. As for the Lords, hu­manum est errare, but the Iudges are rather involved in these words Prameditata militia, for his election was the 11. of November sit­ting the in Parliament; and his censure the 13. of December, so they had 22. or 23. dayes to repent of their ill-grounded resolution, a grea­ter affront never offered to the house of Com­mons, being comparative, as if the Recorder of the Tolsell should sentence the Lord chiefe Justice of Ireland a member of our house is a walking Record: & needs not to melt the Kings [Page 17]picture in his pocket. Others alledge, it was an election purchased by collusion, but de non existentibus & non apparentib. eadem est ratio. And since the end of his election is in it selfe and per-se, for the advancing of the publicke service, as well as to prove a sentence not then in rerum natura, both Law and charity in a benigne cōstruction of these 2. ends will al­low the more favourable. Another objection is whispered, that the entrance is not found in the Clerke of the Parliaments Role; This is no matter to the validity of his election, for his Priviledge commenced 40. dayes before the Parliament, therefore this and the like are to be judged of as accidentia quae possunt abesse & adesse sine subjecti interitu. Truely (Mr. Speaker) my memory and lungs begin to prove Traitors to me; Another objection, if omit­ted, may be judged by these of what strength and maturity they, even as by the coynage of a penny, one may judge of a shilling; What hinders then, since here is water but, that hee may be baptized? Here are no non obstant's to be admitted in his new Pattent of Denization, the common law, the Statute law, the Canon, the Civill Law plead for his admittance, the writ of election, the exēplification of the She­riffes returne, all presidents of all ages, all re­ports plead for his admittance, our fore-Fa­thers Ghosts, the present practice of Parlia­ments in England plead for his admittance, [Page 18]the Kings successive commands, command and confirme his admittance; Away then Serjeant and with the hazarding power of our Mace touch the Marshals gates, and (as if there were Divinity in it) they will open and bring us our Olive branch of peace wrested from our stock, that with welcome Art we may ingraft him to be nourished by a common roote. Thus the King shall receive the benefit of an able Sub­ject, who is otherwise, Civiliter mortuus, we enjoy the participation of his la­bour, and posterity both ours and this.