THe treaſonable and deſtructive deſigne of divers dangerous Anabaptiſts, Levellers, Agitators in the Army, City, Countrey, and of Lilburne, Overton, (their Champions and Ring-leaders in this Seditious Plot) to dethrone the King, unlord the Lords, new-modell the Houſe of Commons, extirpate Monarchy, ſuppreſſe the Houſe of Peers, and ſubvert Parliaments, (the onely obſtacles to their pretended Polarchy and Anarchy) are now ſo legible in their many late printed Petitions, Libells, Pamphlets, and viſible in their actings, and publike proceedings, that it rather requires our diligence and expedition to prevent, then heſitancy to doubt or dispute them, they poſitively proteſting againſt and denying both King and Monarchy, in theirA Remonstrance of many thouſand a • zens to their own Houſe of Commons, p. 6. the juſt mans Juſtification, p. 10. Regall Tyranny Diſcovered, A Declaration from his Excellency, and the Generall Counſell of the Army, Ian. 11. 1647. p. 7. Speeches, &c. at a Conference newly publiſhed by Walker, printed verbatim out of Dolman the Ieſuit his Booke, condemned. Pamphlets and Remonſtrances, with the Power and Judicature of the Houſe of Peers, and their undoubted juſt Hereditary right to Vote, act, or ſit in Parliament, becauſe they are not elected by the people as Knights and Burgeſſes are, aſſerting, Lilburnes Iust Man in Bonds, p. 1, 2. A Pearl in a Dunghill, The Free-mans Freedome Vindicated, An Anatomy of the Lords Tyranny, his Argument and Plea before the Committee againſt the Lords Authority, his Petition to the Commons, his Letters to Henry Martin, Overtons Arrow of Defiance ſhot into the Prerogative Bowells of the Houſe of Lords, his Petition and Appeale. A Defiance againſt Arbitrary Ʋſurpation. The Agreement of the People and Petitions wherein it was preſented to the Houſe of Commons. An Alarum to the Houſe of Lords. See M. Edwards Gangraena, part 3. p. 192. to 204. That they are no naturall iſſues of our Lawes, but the Exorbitances and Muſhromes of Prerogative, the Wenns of just Government, the Sons of Conqueſt and uſurpation, not of choice and election, intruded upon us by power, not made by the people, from whom ALL POWER, PLACE, and OFFICE that is juſt in this Kingdome OUGHT TO ARISE, meere arbitrary Tyrants, Ʋſurpers, an illegitimate and illegall power and Judicatory, who act and Vote in our affaires but as INTRUDERS, who ought of right not to judge, cenſure, or impriſon any Commoner of England, even for libelling againſt them, refuſing to appeare before them, reviling and contemning them and their Authòrity to their faces at their very Barre, (as Lilburne, Overton boſt and print they did) or breaking any of their undoubted Priviledges. And to accompliſh this their deſigne the better, they endeavour by their moſt impudent flattery to ingage the Houſe of Commons againſt the Houſe of Peers, the better to pull them downe, ſtiling and proclaming them in their Overtons Petition and Appeal to the High and mighty States, the Knights and Burgeſſes in Parliament aſſembled. Englands legall Soveraigne Power. The R • monstrance of many thouſands to their own Houſe of Commons. A printed Petition (now in agitation) of many Freeborne people to the only Supreme Power of this Realme, the Commons in Parliament aſſembled. The Anatomy of the Lords Tyranny. An Alarum to the Houſe of Lords. See M. Edwards Gangraena, part 3. p. 154. to 204. Petitions and Pamphlets, The ONLY Supreme legall Judicatory of the Land, who ought BY RIGHT, to judge the Lords and their proceedings, from whom they appeale for right and reparations againſt the Houſe of Peeres, affirming, That in the Commons Houſe alone reſides the formall and legall Supreme Power of England, who ONELY are choſen by the people, and THEREFORE IN THEM ONELY is the power of binding the whole Nation, by making, altering, or aboliſhing Lawes without the Kings or Lords concurrent aſſents, to whom they now abſolutely deny any Negative voice, making the Commons a compleat Independent Parliament of themſelves; and therefore preſent all their Petitions and addreſſes to them alone, without any acknowledgement or notice of the Houſe of Peers, to whom they deny any right or title to ſit or vote in Parliament, unleſſe they will firſt diveſt themſelves of their Peerage, and Barons right of Seſſion, and ſubmit to ſtand for the next Knights and Burgeſſes place in the Houſe of Commons that ſhall fall void, where if they may have any voice or influence, the meaneſt Cobler, Tinker, Weaver or Water-man ſhall be elected a Knight, or Burgeſſe ſooner then the beſt and greateſt Peer, and John of Leyden preferred before King or Prince Charles, Sic Sceptra ligonibus aequanti, which Petitions and Pamphlets of theirs have ſo puffed and bladdered up many Novices, and raw Parliament-men in the Commons Houſe, unacquainted with the bounds, proceedings, and originall Conſtitution of Parliaments, and the Lawes and Cuſtomes of England, that they begin to act, vote, and diſpoſe of the Army, Navy, &c. without and againſt the Lords, not expecting their concurrence, contrary to all former proceedings of Parliament, the Lords juſt Priviledges, and their own Solemne League and Covenant to maintaine them, which may prove deſtructive to both Houſes, the Parliament, Kingdome, and oppreſſive to their Repreſentatives the people, (who generally diſlike it) if not timely redreſſed, and breeds ſuch a deadly feud between the Houſes as may ruine them both and the Kingdome to boot. The end of theſe Anabaptiſts, Levellers and Lilburnians being only toSee M. Edwards Gangraena, part 3. where this is fully demonſtrated. deſtroy the Parliament, by ſetting both Houſes at variance, they inveighing as bitterly againſt the power, proceedings, Ordinances, Votes, Power, Members, undue Elections and unequall Conſtitutions of the Houſe of Commons, as the Lords, and therefore have ſo earneſtly preſſed in their Lilburnes Letter to a friend. Innocency and Truth juſtified, and his late Letters to Cromwell, Martin, Sir Thomas Fairfax, and others. Englands Birthright. Englands lamentable Slavery. Another word to the wiſe. Comparata Comparandis Liberty againſt Slavery. The Arraignement of Perſecution. The Ordinance againſt Tythes unmounted. See Mr. Edwards Gangrana, part 3. p. 209. to 204. Pamphlets, and by ſome lateSee the ſeverall Remonſtrances from his Excellency and the Army, from June, till December last. The agreement of the people, the grand Deſigne, Put • ey Projects. Remonſtrances, and Engagements from their Confederates and Agitators in the Army, a ſpeedy period and diſſolution of this Parliament, and a new modelling and more equall diſtribution of Members in the very Houſe of Commons for the future. All which Petitions, Papers, Remonſtrances, and Pamphlets of theirs tending to the utter ſubverſion of Parliaments, the fundamentall Lawes and Government of the Kingdome, and introduction of all arbitrary popular Polarchy and Tyranny, are rather to be ranked among and more agreeable to the Earle of Straffords and Canterburies Treaſons, (which they exceed by many degrees) then to be ſleighted or countenanced as they are, the keeping up of the honour of Peers, and rights and Priviledges of both Houſes within their juſt bounds, without interfeiring or incroachment upon one another, or invading the peoples juſt Liberties and Rights, being the onely meanes of their and our preſervation, ſettlement, ſecurity; upon which conſideration, I ſhall endeavour as briefly and fully as I may, to vindicate the undoubted Right of the Lords and Peers of this Realme to ſit and vote in Parliament, notwithſtanding they are not elected by the people, and make good the right and power of Judicature, as well of Commoners as Peers againſt all cavills of the Anabaptiſticall Levellers, Lilburnians, Sectari • s, Agitators, and I hope ſo farre to ſilence and ſtop their mouthes, if not convince their judgements, that they ſhall never be able to reply again hereto.

The ſum of all they object againſt the Lords right of ſitting, voting and judging, in Parliament is this:Overtons Defiance againſt all arbitrary uſurpation of the Houſe of Lords, p. 5. 6 15. 17. 18. his Arrow againſt all Tyrants, p. 6 10. 11. 12. and others forecited. That they ſit there only by Patent, the Kings will, Tenure or deſcent, not onely by the Peoples free Election, as the Knights, Citizens, and Burgeſſes doe: That the people never intruſted nor inveſted them with any power, but the King; they repreſent themſelves onely not the Commons, and the Sonnes onely of Conqueſt, (brought in by the Conquerour,) of Uſurpation, not of Choice and Election.

1. To this I anſwer: firſt, That our Earls, Barons, Nobles (and Archbiſhops, Biſhops, and Abbots too who held by Barony) ſate anciently in all our Parliaments, and Generall Counſells and Aſſemblies, many hundred yeares before the Conqueſt by right of Peerage and Tenure, as now they doe, as Modus tenendi Parliamentum, Epiſt to his 9. Report, Inſtitutes on Litleton, p. 110 4. Inſtitutes, c. 1. Sir Edward Cook, Vowell M. Seldens Titles of Honour, part 2. ch. 5. where this is abundantly manifeſted, Spelma • ni Concil t • m. 1. Truth triump • ing over Falſhood, antiquity over Novelty, p. 36 &c. The Freeholders Grand inqueſt, p. 4. to 20. and others write, and our Historians record; therefore this is a groſſe miſtake, That they are the Sonnes of Conqueſt introduced by the Conquerour: the rather, becauſe in all Empires and Kingdomes in the world, though free and never conquered, their Princes, Nobles, Lords, and great Officers of State, have ever ſate in all their Parliaments, Senates and Generall Counſells of State, by reaſon of their Honors and places only, without any popular Elections, as is cleare by theſe Texts of Scripture, 1 Chron. 13. 1, 2. c. 28. 1, 2. &c. c. 29. 1. 6. 24. 2 Chron. 1, 2, 3. c. 5. 3. 4. &c. c. 23. 2. 3. 20. 21. c. 30. 2. 3. 6. 12. c. 34. 29. 30. c. 35. 7. 8. Neh. 9. 38. c. 10. Eſther 1. 13. to 22. Dan. 3. 2. 3. 2 Chro. 29. 30. c. 32. 3. Ezra 9. 1. c. 10. 8. 1 Sam. 5. 8. c. 29. 3. to 10. Pſa. 68. 27. Prov. 8. 15, 16. Iſa. 19. 11. 12. 13. Jer. 17. 25. c. 26. 11. 16. c. 36. 12. 14. c. 37. 14. 15. c. 38. 4. 25. 27. Dan. 6. 1. 6, 7. Jonah, 3. 7. Pſa. 2. 2. Iſa. 1. 23. 26. compared together, and by all Hiſtorians and Polititians teſtimonies.

2. Secondly, that they ſit there onely by the Kings Patent is falſe: for firſt, many Peeres and Nobles have been created in and bySee M. Seldens Titles of Honour p. 2. ch. 5. 14. • , 3. c. 35. 9. R. 2. n. 16. 20. R. 2. n. 80, 1. H. 4. • . 81. with many more. Parliament, at the Commons and Peoples earneſt Petitions, and by Patents confirmed in Parliament, of which there are many Preſidents. Secondly, though the Kings Writ or Patent create others of them Peers and Baro • 's without the peoples conſent, yet the Lawes and Statutes of the Realme made by the Commons conſents, and approved by the people, allow the King this power, and authorize and5. R. 2. Stat. 2. c. 4 31. H. 8. c. 10. enjoyne Lords and Barons to ſit in Parliament, when thus created, if there be no juſt exceptions taken to them by the Houſes; therefore though they are created Lords and Peers, and ſit in Parliament by the Kings Patent, and Writ onely, by way of inſtrument and conveyance, yet originally and really they are made, and ſit there by the Lawes and Statutes of the Realme, to which all the people have conſented, of which more hereafter. Thirdly, all ancient and new Cities and Burroughs who ſend Citizens and Burgeſſes to Parliament, and the Diviſions of Counties, were originally created and inveſted with this power to elect Citizens, Burgeſſes, and Knights for the Parliament L • e Lit. c. 10. Sect. 162, 164. & Cook Ibidem. 49. Aſſ. 8. only by the Kings Letters Patents and Charters, not by the peoples election and choice, and none of them do or can chooſe or ſend Knights, Citizens, and Burgeſſes to Parliament Cook 4. Inſtit. c. 1. & Cr • mptons Juriſdiction of Cou • ts. c. 1. 1. R. 1. c 4. 8. H. 4 c. 14 8. H. 5. c. 7. 32. H. 6. c. 15 & 14 H. 5. c 3 l. 1. H. 7 12 2 H. 7. 13. a. 5. H 7. 9. H. 7. 12. 14 H. 6. 12. 7. • . 4. 14 15. • 4 15. Coo • 1. 〈◊〉 . 250. a. without the Kings Writ, directed to them, but onely by power and vertue of it; therefore if the Lords ſitting in Parliament be illegall and unwarrantable, becauſe they ſit onely by Patent and Writs from the King, the ſitting of Knights, Citizens and Burgeſſes muſt be ſo too, becauſe they are elected only by the Kings Writ, and enabled to elect and chooſe them only by his Patents, the power of * creating Cities, Burroughs and Knights, being originally in the King, as well as the power of creating Lords and Barons.

3. Thirdly, that the generall election of the people is not abſolutely neceſſarie nor eſſentiall to the making of a King, Magiſtrate, Counſeller of State, Peer, or member of Parliament, (nor yet of a Miniſter) as the Objectors falſly pretend, who take it for granted as an infallible truth and Maxime of State: for then it will follow, that neitherExod 3. & 4. & 7. Moſes Deut. 3. 28. Nu • . 27. 16. 〈◊〉 23. Deut. 31. • . 〈◊〉 . 9. 14. 23. c. 34. 9. Ioſh •• . Joſhua, Ne • c. 2. &c. Nehemiah, 1 Sam 9. 16. c. 10. 1. 21. Saul, Pſal. 78. 70, 71, 72. 1 Sam. 1 • . 2 Sam. 7, 8. David, 1 Chron. 23. 1. c. 28. 5, 6. 2 Chron. 1. 8. Solomon, nor any of the2 Chron. 14 1. c. 17. 1. c. 28. 27. c. 29. 1. pious Kings of Juda who came to the Crown by Gods immediate deſignation, or by deſcent & ſucceſſion, were juſt & lawful Governours or Kings, which none dare aver, That theNum. 11. 16, 17. 24, 25, 26, 27. 70. Elders, the Princes, 1 Chron. 18. 15, 16, 17. c. 26. 29, 30, 31, 32, c. 27. c. 28. 1. 2 Chron. 19. 5. 〈◊〉 7. Nobles, chief Captains, Iudges, and Rulers among the Jewes under Moſes, and their Kings, and other Governours, and the Jewiſh Sanhedrin, were no lawfull Judges, Magiſtrates, Counſellers of State, or Members of their generall Congregations, Parliaments and aſſemblies, ſince we read of none of them choſen by the people, but onely deſigned by God himſelf, or made and created ſuch by Kings and Governours, and by them called and ſummoned to their generall congregations, aſſemblies and judicatures, as the premiſed texts and others evidence. ThatGen. 40. 40, 41, &c. Exod. 18. 25. Pſal. 105. 21. Acts 8. 10. Joſeph, Eſther 8. & 10. Mordecai, Dan. 2. 48, 49. Daniel, Shadrac, Meſec, & Abednego, were no lawfull Rulers or Magiſtrates, becauſe made ſuch even by Heathen Kings, not by the peoples choice. And that none of the Levites, Prieſts, High Prieſts or Prophets, under the Law were lawfull, becauſe none of them (that we read of) made a Levite, Prieſt, High-Prieſt or Prophet by the peoples call; but byExod. 40. Numb. 1, & 3. & 4 1 Chron. c. 23. c. • 5, 29, & 26. 〈◊〉 . 2 • . 13. Heb. 5. • . deſcent and ſucceſſion in the ſelfeſame Tribe, or by Gods own immediate call and appointment, asMat. 3. Iohn Baptiſt, Iſa 61. 1. c. 65. 1 Ioh. 20. 21. Heb. 5. 4, 5. Christ, theMar 10. Luke 9. 10. Mar. 28. 19, 20. Iohn 20. 21. 1 Cor. 1. 17. Gal. 1. 1. Acts 8. 5. 14, 15. • Caſe Polit. l. 3. c. 2. Bod • . de Repub. l. 2. c. 2, 3. Ioan Mariana de Rege & Regum Inſtit. l. 1. c. 3, 4. Apoſtles, the 70. Diſciples and others under the Goſpell were made and created Miniſters, Apoſtles, Evangeliſts and preaching Elders, without the peoples call; and yet our oppoſites dare not deny their Miniſtery and Apoſtleſhip to be lawfull, being not of men, but of Gods and Chriſts own call, without the peoples. Secondly, then it will follow, that all Hereditary Kingdomes, which (g) Polititians and Divines generally hold the beſt of Governments, all Patents and Commiſſions in all Empires, Kingdomes and States of the world creating Princes, Dukes, Earls, Lords, and ſuch like Titles of Honour, whereby they are inabled in all Chriſtian Kingdomes to ſit in their Parliaments and Aſſemblies of State, and for creating Privy Counſellors, Judges, Juſtices and other Magiſtrates are void, null and illegall, and ſo all the Lawes, Orders, Ordinances made, Acts done and Judgements given by them, d See M. Seldens Titles of Honor. are void and erroneous, becauſe they were not choſen and called to theſe places and publike Counſells and Judicatures by the people, but by the Emperours, Kings, and Supreme Governours of State, and what a confuſion ſuch a Paradox as this would breed in all our Kingdomes, and in all States and Kingdomes in the world, let wiſe men conſider, and thoſe fools too who make this Objection.

4. Fourthly, if there be no lawfull Authority in any State, but from the Peoples immediate election, then it will neceſſarily follow, that Sir Thomas Fair • ax is no lawfull Generall, his Officers and Councell of Warre no lawfull Officers or Councell; and Colonell, and Lievtenant-Colonell Lilburne no lawfull Colonell or Lievtenant Colonell, and ought not to uſe or retaine theſe titles, as they do, becauſe none of them were called and choſen to thoſe places by the People, but made ſuch by Commiſſion from the Parliament.

5. Fifthly, This paradox of theirs, touching the peoples choice and call to inable Peers to ſit in Parliament, or beare any office of Magiſtracy or Judicature, is warranted by no law of God, in old or new Teſtament, both which contradict it: by no Lawes or Statutes of theſe Kingdomes or Nations, which abſolutely diſclaime it, and enact the contrary: by no preſcription, cuſtome or uſage, which are all againſt it; by no Originall Law of Nature, which as allAriſt. Polit. l. 1. Bodin. de Repub. l. 1. c. 2. 3, 4, 5. D. F • eld of the Church. l. 1. c. 1, 2. Polititians and Divines aſſert, and the Scripture manifeſts, gives every Father a Magiſteriall and Judiciall rule and power over his children, progeny, Family; and makes him a King, Prince, Lord over them, without either their choice or call; the Father and firſt-borne of the family, being both the King, Prince and Lord over it, and Prieſt to it from the Creation till the Law was given, as is generally acknowledged by all Divines.

6. Sixthly, I anſwer, that a particular, explicit actuall choice and election by the people, of any to be Kings, Magiſtrates, Judges, Miniſters, Peeres or Members of Parliament, is neither neceſſary nor convenient to make them juſt and lawfull, except onely when the Lawes of God, of Nature, of Nations, or the Kingdome expreſly require it; but onely a generall implicit or tacit conſent; eſpecially when the ancient Lawes of the Land continuing ſtill in full force, and the cuſtome of the Kingdome time out of mind, requires no ſuch ceremony of the peoples particular election or call; in which caſe the peoples diſſent is of no validity, till that Law & cuſtome be repealed by general conſent of the King, Lords and Commons in Parliament.* Seldens Titles of Honour, part 2. Cook 4. Inſtit. c. • . Cambdens •• it. Now the ancient Lawes, Statutes & Cuſtoms of the Kingdom enable all Lords who are Peers & Barons of the Realm to ſit in Parliament when ever ſummoned to it by the Kings Writ, without any election of the people; and if the Lawes and Cuſtomes of the Realme were, that the King himſelfe might call two Knights, Citizens and Burgeſſes to Parliament, ſuch as himſelfe ſhould nominate in his writ out of every County, City and Burrough, without the Freeholders, Citizens, and Burgeſſes election of them by a common agreement and conſent to ſuch a Law and uſage made by their Anceſtors, and ſubmited and conſented to for ſome ages without repeale, this Law and Cuſtome were ſufficient to make ſuch Knights, Citizens and Burgeſſes lawfull Members of Parliament, and to repreſent the Commons of England without any election of the people, the Laws made by our Anceſtors in Parliament,See Littleton, Fitz-Herbert, Brut. & Aſhly. Tit. VVarranty. Obligat. Covenant, &c. obliging their poſterity whiles unrepealed; as well as their Warranties, Obligations, Statutes, Feofements, Morgages and alienations of their Lands, as the Objectors muſt acknowledge, therefore they muſt of neceſſity grant, their preſent ſitting, voting and judging too in Parliament to be lawfull, becauſe thus warranted by the Lawes and Cuſtomes of the Realme.

4. If all Power in Government, and right of ſitting, judging, and making Lawes or Ordinances in Parliament, be founded upon the immediate free election of all thoſe that are to be Governed; and of neceſſity that all thoſe who are to be ſubject and they ought to be repreſented by thoſe who have power in Government, the Summe ofSee M. Edwards his Gangraena. part. 3. p. 142. to 162. Lilburnes Overtons, and the Levellers reaſons againſt the Lords Iuriſdiction, then it will of neceſſity follow; that the orders, Votes, Ordinances and Lawes made by or conſented to by the Knights, Citizens and Burgeſſes in Parliament, ought not to bind any Miniſters, Women, Children, Infants, Servants, Strangers, Freeholders, Citizens, Burgeſſes, Artificers, or others, (who cannot well or properly be repreſented but by perſons of their owne ſex, degrees, trades and callings, and ſo every ſex, trade, calling in each County and Corporation in England ſhould ſend Members of their own to Parliament to repreſent them) but only ſuch Freeholders, and Burgeſſes who had voices in and gave free conſent to their Elections, not any who have no voyces by Law, or diſſented from thoſe elected and returned; yea then it will neceſſarly follow; that thoſe Counties, Cities and Burroughs whoſe Members have been injuriouſly impeached, ſuſpended, driven away, or thruſt out of the Houſe of Commons by the objectors and the Armies practiſe and violence (contrary to all former preſidents) are abſolutely free, exempted and not bound by any Votes or Ordinances made, or taxes impoſed by the Commons Houſe, becauſe they have no Members to repreſent them reſiding in Parliament; and that thoſe Counties and Burroughs whoſe Knights and Burgeſſes are dead or abſent are no wayes obliged by any Votes, Ordinances, or Grants in Parliament: And then how few in the Kingdome will or ought to yeeld obedience to any the Acts, Ordinances, or Votes of this preſent Parliament, or to any Mayors, Sheriffes Aldermen, or Heads of Houſes made by their Votes and Authority, (uſually made by election heretofore) or to any Iudges, Juſtices, Governours, Generalls, Captains, or other Military Officers made by their Commiſſion or appointment, without the generality of the peoples Votes, or conſent, eſpecially when above halfe, or three full parts of the Members were abſent or driven from both Houſes, by the Objectors violence and menaces.

Theſe Anſwers premiſed, I ſhall now proceed to the proofe of the Lords undeniable Right and Authority to ſit, Vote, and give Judgement in Parliament, though not actually elected and called by the people, as Knights and Burgeſſes are.

1. It is evident, by the Hiſtories, Republikes of moſt ancient and modern Kingdomes and Republikes in the world, that their Princes, Nobles, Peers and great Officers of State, have by the Originall Fundamentall Lawes and Inſtitutions, by right of their very 31. H. 8 c. 10 See M. Seldens Titles of Honor, Caſſanaeus Catalogus Gloriae Mundi: Alanſo Lopez in Nobiliario, and others who write of Nobility. Cambd. Brit. of the No •• lity and Courts of Iuſtice in England Nobility, Peerage, and great Offices, without any particular election of the people, a juſt right and title to ſit, conſult, Vote, enact Lawes, and give Iudgement in all their Generall Aſſemblies of State, Parliaments, Senates, Diets, Councells; as might be mainfeſted by particular inſtances in the Kingdomes Republikes, Parliaments, Diets, and Generall Aſſemblies of the Iewes, Egyptians, Grecians, Romans, Perſians, Ethiopians, Germans, French, Goths, Vandalls, Hungarians, Bohemians, Polonians, Ruſſians, Swedes, Scythians, Tartars, Moores, Indians, Spaniards, Portugalls, Danes, Saxons, Scots, Iriſh, and many others: And to deny the like priviledge to our Engliſh Peers and Nobles, which all Nobles, Peers in all other Kingdomes, Nations, Republikes anciently have done, and yet doe conſtantly enjoy, without exceptions or diſpute, is a groſſe unjury, injuſtice and over-ſight, yea a great diſhonor both to our Nobility and Nation.

Secondly, By, and in the very primitive conſtitution of our Engliſh Parliaments, it was unanimouſly agreed by the Kingdomes and peoples generall conſents, that our Parliaments ſhould be conſtituted and made up, not of Knights and Burgiſſes onely, elected byE. H 6. c. 7. 10. H. 6. c. 2. 32 H. 6 c. 15. Crumpton. Juriſdict. p. 1. 2. 3. Cooke 4 Inſtit. c. 1. Freeholders and Burgeſſes (not by the generality of the vulgar people, who would now claime and uſurpe this right of election) but likewiſe of the King, the Supream Member, by whoſe Cooke Inſtit. c. 1. n. 1. 10. Modus Tenendi Parliamentum. Crompton Juriſdiction of Courts, Tit. Parliament. M. Seldens Tit. of Honour. par. 2. c. 5. writs the Parliaments were to be ſommoned, and by the Lords, Peers, Barons, (eccleſiaſticall and civill) and great Officers of the Realme, who ought of right to ſit, vote, make Lawes, and give Judgement in Parliament by vertue of their Peerage; Baronries and Offices, without any election of the people: the Commons themſelves being no Parliament, judicatory, or Law-givers alone, without the King and Lords as Modus tenendi Parliamentorum; Sir Edward Cooke in his 4. Inſtitutes. ch. 1. Mr. Seldens Titles of Honor. part. 2. ch. 5. Ʋowell, Camden, Sir. Thomas Smith, Cowell, Minſhaw, Crompton with others who have written of our Engliſh Parliaments, aſſert, and all our Parliament Rolls, Statutes, and33. H. 6. 16. Br. Parliam. 4. 39. E 3. 7. 35. 11. H. 7 27. Br Parl. 107. 4. H. 7. 18. 7 H. 7. 14 Crumptons Iuriſd f. 9. Co. 4. Inſtitutes. n 15 35. Fit f. 20. Dyer. 92. Iudge Huttons Argument of Mr. Hamdens caſe. p 32. 33. Law-bookes, reſolve, without whoſe threefold concurrent aſſents there is or can be no Act of Parliament made.

Thirdly, This right of theirs is confirmed by preſcription and cuſtome from the very firſt beginning of Parliaments in this Kingdome till this preſent, their being no one preſident to be found in Hiſtory or Record of any one Parliament held in this Iſland ſince it was a Kingdome without the King perſonally or repreſentatively preſent (by a Protector, Cuſtos or Regni, Commiſſioners) as he ought to be, or without Lords and Peeres; anciently ſtiled Aldermen, Heretockes, Senators, Wiſemen, Nobles, Princes, Earles, Counts, Dukes, &c. by our Hiſtorians; who make mention of their reſorting to, fitting, voting and judging in our Parliaments Generall Aſſemblies and Councels, under thoſe Titles, without the peoples Election, long before the Conquerors time; in the anciented Parliaments and Councels we read of, witneſſe Ingulph, Beda, Huntingdon, Mathew Weſtminſter, Florent • us, Wigornienſis, Malmesbury, Hector Boetius, Speed, and other in their Hiſtories, Antiquitates Eccleſiae Britanicae, Spelmanni Concilia. Tom 1. Sir Edward Cooke in his Preface to the 9. Report, and fourth Inſtitut. c. 1. and above all others Mr. Seldens Titles of Honor. part. 2. c. 5. Truth triumphing over falſehood, Antiquity over Novelty. p. 56. to. 90. and Mr. Lambert in his Archaion: there being little or no mention at all of any Knights of Sbires Citizens, or Burgeſſes in any of our Parliaments and Councels, before the Conqueſt, or in the Conquerors time, and his next Succeſſors, but of Earles, Barons, Nobles, Archbiſhops, and Biſhops onely for the moſt part; whom Sir Edward Cooke and others conceive were comprehended under the names of Sapientum, or wiſe men, Seniores populi, (extending to Peers too, as they confeſſe) or at leaſt wiſe under theſe phraſes;Spelman C. p. 194. praeſentibus omnibus Ordinibus illius Gentis, cum vtris quibuſdam Militaribus (rather Souldiers than Knights,) of which we finde mention in the Councel of Be • henceld. l Spelman Ibid p. 21 • . An. 697. or, omnium Sapientum Seniorum, & POPVLORVM totius Regni; coupled with theſe pre-eminent Titles of Omnium Aldermannorum, Principum, Procerum, Comitum, who met together in a generall Councell under King Jue. An. 713. OrSpelman. p. 318. cujuſcunque Ordinis viros, in the Conncell of Cloveſkro. An. 800. which expreſſions we finde are now and then mentioned in ſome ancient Councels and Parliaments, though rarely: And if that ofHiſt. p. 870. Ingulph and other our Hiſtorians and ſome Lawyers be true, (which Firſt inſtitut. f. 108. Sir Edward Cooke, andTitles of Honour. part 2. • . 5. ſec. 3. p. 614 615. &c. Mr. Selden deny) (that King Alfred firſt divided the Realme into Counties, as all grant he did into Hundreds and Tithings, and erected Hundred Courts wherein Knights of the Shire were alwayes, & yet are, & ought to be elected) there could be no Knights of Shires at leaſt (if any Citizens or Burgeſſes) to ſerve in Parliament, before this diviſion, though there were Earles, Dukes, and Barons before his raigne (who were preſent by the Kings ſummons, not peoples elections, at our Parliaments, and Generall Councels) asTitles of Honour 2. chap. 5. ſec. 2. 3. 4. 5. Mr. Selden, andGloſſarium. Tit. Comitis & Comitatus. Sir Henry Spelman undeniably manifeſt.

Their ſitting, voting, and judging therefore in Parliament, being ſo ancient, cleare and unqueſtionable ever ſince their firſt beginning till now; and the ſitting of Knights, Citizens, and Burgeſſes by the peoples election in our ancienteſt Parliaments and Councells not ſo cleare and evident by Hiſtory or Records as theirs: we muſt needs acknowledge and ſubſcribe to their Right and Title, or elſe deny the Knights, Citizens and Burgeſſes rights in Parliament rather than theirs, who have not ſo ancient nor cleare a Title or right as they.

Fourthly, This Right and Priviledge of theirs is veſted legally in them by the very Common-Law and Cuſtome of the Realme, which binds all men; & the unanimous conſent of all our Anceſtors, & all the Commons of England from age to age aſſembled in Parliament, ſince we had any Parliaments, who alwaies conſented to, deſired, and never once oppoſed the Lords ſitting, voting, power or Judicature in Parliament, and by Magna Charta it ſelfe wherein they are firſt mentioned and provided for. Hereupon King Henry the third (not long after Magna Charta was granted, and at the ſame time it was proclamed and confirmed with a moſt ſolemne Excommunication in the preſence of all the Lords, and Commons by all the Biſhops of England, againſt the infringers thereof) ſummoning a Parliament at London in the yeare 1255. to ayde him in his warrs in Apulia; the Earles and Barrons, abſolutely refuſed to give him any aſſiſtance at all, not onely becauſe he had undertaken that warre without their advice, but alſo for this reaſon;Math. Paris An. 1255. p. 884 885. Daniel. p. 172 That ALL THE BARONS were not ſummoned by him to this Parliament, AS THEY OUGHT TO BE ACCORDING TO THE TENOR OF MAGNA CHARTA; whereupon they departing in diſcontent, and refuſing to ſit longer, the Parliament was diſolved. t Mr. St. Johns Speech concerning Shipmony p. 33. 1. H. 4. n. 21. 22 25. 36. And upon this very ground, among others, the Parliament of 21 R. 2. with all the Acts and proceedings therein were repealed and nulled by the Parliament of 1. H. 4. becauſe the Lords who adhered to their King were ſummoned by him to the Parliament, and ſome of the oppoſite party impriſoned, impeached, and omitted, and many Knights of the ſhire were onely elected by the Kings nomination & Letters to the Sheriffes; And the Parliament it ſelf kept by force, viris armatis & ſagittarijs minenſis, brought out of Cheſhire as an extraordinary guard, quartered in the Kings Court at Weſtminſter, and about Charing Croſſe and the Muſe; of whichChron p 389. 390. Grafton, and other Hiſtorians writes thus. That they fell ſuddenly into ſo great pride of the Kings favour, that THEY ACCOVNTED THE KING TO BE AS THEIR FELLOW, and THEY SET THE LORDS AT NOƲGHT; yet few or none of them were Gentlemen, but taken from the plough, and Cart, and other Crafts. And after theſe ruſticall people had a while courted, they entred into ſo great a boldneſſe, that they would not let, neither within nor without the Court, to beat and ſlay the Kings good ſubjects; to take from them their victualls, and pay for them little or nothing at their pleaſure: (as our free-quarterers doe now) falling at laſt to raviſh mens wives and daughters: And if any man fortuned to complaine of them to the King, he was ſoone rid out of the way no man knew how, or by whom, ſo as they did what they liſted; the King not caring to doe juſtice upon them, but favoring them, in their miſdoings, confiding in them and their guards againſt any others of the Kingdome, which gave Lieges of his Kingdome great matter of commotion and diſcontent. The bringing up of which guard to Weſtminſter to force, and overawe the Parliament to effect his owne deſignes is one principle Article exhibited againſt him by the Parliament, for which he was depoſed. I pray God our New armed Guard and Courtiers at Whithall and the Muſe (of as meane condition as thoſe) fall not by degrees to the ſelfeſame exorbitances, contempt of the King, Lords, Parliament, and oppreſſion of the people, to their generall mutining and diſcontent. In the Parliament of 6 E. 3, N 1. & Parl. 2. N. 5. 6. 8. 9. and moſt of the enſuing Parliaments in this Kings reigne, and in divers Parliaments in Ric. 2. Henry 4. c. 5. 6. was found in the Parliament Roules that the Parliaments have beene proroged and adjourned from the dayes they were ſummoned to meet, and have not ſate, nor acted at all; becauſe ſome of the Lords were not come by reaſon of foule weather, ſhortneſſe of warning or other publike imployments; all their perſonall preſence in Parliament being reputed neceſſary and expedient. And 20. R. 2. N. 8. The Commons themſelves in Parliament required the King to SEND FOR SUCH BISHOPS and LORDS WHO WERE ABSENT, to come to the Parliament, before they would conſult of what the Chancellor propounded to them in the Kings name and behalfe to conſider of. To recite no more ancient Preſidents in the Parliament of 2. Caroli, the Earle of Arundell ſitting in the Parliament being committed by the King to the Tower of London about his ſonnes marriage May 25 1626. without the Houſes privity and conſent, whereby their Priviledges were infringed, and the Houſe deprived of one of their Members preſence thereupon the Houſes of Peeres adjourned themſelves on the 25 and 26. of May without doing any thing; and upon the Kings refuſall to releaſe him, they adjourned from May 26. till June 2. refuſing to ſit, and ſo that Parliament diſolved in diſcontent, his impriſonment in this caſe being a breach of Priviledge, contrary to Magna Charta. And not long after the beginning of this Parliament, upon the Kings accuſation and impeachment of the Lord Kimbolton and the five Members of the Commons HouſeAn Exact collection part 1. both Houſes adjourned and ſate not as Houſes, till they had received ſatisfaction and reſtitution of thoſe Members, as the Journals of both Houſes manifeſt; it being an high breach of their Priviledges, contrary to the Great Charter. If then the Kings bare not ſummoning, of ſome Peares to Parliament, who ought to ſit there by their right of Perage; or impeaching or impriſoning any Peere unjuſtly, to diſable them to ſit perſonally in Parliament, be a breach of the fundamentall Lawes of the Realme, and of Magna Charta it ſelfe (confirmed in above 40. ſucceeding Parliaments,) then the Lords right to ſit, vote and Judge in Parliament, is as firme and indiſputable as Magna Charta can make it; and conſented to and confirmed by all the Commons, people and Parliaments of England, that ever conſented to Magna Charta though they be not eligiable every Parliament by the freeholders, people, as Knights and Burgeſſes ought to be: and to deny this birth-right and Priviledge of theirs, is to deny Magna Charta it ſelfe, and this preſent Parliaments Declarations, and proceedings in the caſe of the Lord Kimbolton, a member of the Houſe of Peers.

Fifthly, The ancient Treatiſe (intituled. See Cooke • Juſtit. p. 12. for the Antiquity, and for the Authority of this Treatiſe. The manner of holding Parliaments in England in Edward the Confeſſors time (before the Conqueſt) rehearſed (afterwards) before William the Conqueror by the diſcreet men of the Kingdome, and by himſelfe approved and uſed in his time, and in the times of his Succeſſors Kings of England; if the Title be true, and the Treatiſe ſo ancient as many now take it to be) determines thus of the Kings and Lords right to be perſonally preſent in all Parliaments. The King IS BOUND by all meanes poſſible TO BE PRESENT AT THE PARLIAMENT, unleſſe he be detained or let there from by BODILY SICKNESSE; and then he may keep his Chamber, yet ſo THAT HELYE NOT WITHOUT THE MANOUR OR TOWNE WHERE THE PARLIAMENT IS HELD: and then he ougth to ſend for twelve perſons, of the greateſt and beſt of them that are ſummoned to the Parliament; that is, two Biſhops, two EARLES, two BARONS, two Knights of the Shire, two Burgeſſes▪ and two Citizens to looke upon his perſon to teſtifie and witneſſe his eſtate; and in their preſence he ought to make a Commiſſion and give Authority to the Archbiſhops of the Peace, the ſteward of England, and Cheife Juſtice, that they joyntly and ſeverally ſhould begin the Parliament and continue the ſame in his name, expreſſe mention being made in that Commiſſion of the cauſe of his abſence then, which ought to ſuffice and admoniſh the OTHER NOBLES, cheife men in the Parliament, together with the evident teſtimony of the twelve Peers of theirs. The reaſon is, BECAVSE THERE WAS WONT TO BE A CRY OR MURMVR IN THE PARLIAMENT FOR THE KINGS ABSENCE, BECAUSE HIS ABSENCE IS HURTFULL and DANGEROUS TO THE WHOLE COMMONALTY OF THE PARLIAMENT and KINGDOME, WHEN THE KING SHALL BE ABSENT FROM HIS PARLIAMENT. Neither indeed OUGHT OR MAY HE BE ABSENT BUT ONELY IN THE CASE AFORESAID. After which it followes. The Archbiſhops, Biſhops and other cheife of the Clergy ought to be ſummoned to come to the Parliament; and Alſo EVERY EARLE and BARON, and their PEERS OUGHT TO BE SUMMONED and COME TO THE PARLIAMENT, &c. Touching the beginning of the Parliament. The Lord the King, ſhall ſit in the mi • ſt of the great bench, and is bound to be preſent in the firſt and laſt day of Parliament. And the Chancellors, Treaſurer and Barons of the Eſchequer, and juſtices were wont to record the defaults made in Parliament according to the order following. In the third day of the Parliament, the Barons of the Cinqueports ſhall be called, and after wards the BARONS of England; after them the EARLES, Whereupon if the Barons of the Cinqueports be not come, the Barony from whence they are ſhall be amerced at an hundred markes; and an Earle at one hundred pounds: After the ſame manner it muſt be done to thoſe who are Peers to Earles and Barons. After which it relates the manner, of place of the Earles, Barons and Peers in Parliament, Then addes. The Parliament may be held, and OƲGHT every day to begin at one of the clocke in the afternoone: at which time THE KING IS TO BE PRESENT AT THE PARLIAMENT and ALL THE PEERS OF THE KINGDOME. None of all the Peers of the Parliament MAY OR OUGHT TO DEPART alone from the Parliament, unleſſe he have obtained (and that in full Parliament) leave from the KING and of ALL HIS PEERS ſo to doe; and that with all there be a remembrance kept in the Parliament roll of ſuch leave and Liberty granted. And if any of the Peers during the terme of the Parliament ſhalbe ſick or weake, ſo as he is not able to come to the Parliament, then he ought three dayes together ſend ſuch as may excuſe him to the Parliament, or elſe two Peers muſt go and view him: and if they finde him ſicke, then he may make a Proxy. Of the Parliament, the King is the Head, the beginning and ending. So this ancient Treatiſe, The Statute of 5. R. 2. Parl. 2. ch. 4. enacts by COMMAND of the King, and ASSENT of the Prelates, LORDS and COMMONS in Parliament; That all and ſingular perſons and Commonalties, which from henceforth ſhall have the Summons of the Parliament, ſhall come from henceforth to the Parliament in the manner AS THEY BE BOUND TO DOE, and hath been ACCVSTOMED within the Realme of England OF OLD TIME. And every perſon of the ſaid Realme which from henceforth ſhall have the ſaid Sommons, (be he Archbiſhop, Biſhop, Abbot, Prior, DUKE, LORD, BARON, Baronet, Knight of the Shire, Citizen of City, Burgeſſe of Burgh, or other ſingular perſon or Commonalty) do abſent himſelfe, or come not at the ſaid Summons, (except he may reaſonably or honeſtly excuſe himſelf to our Soveraigne Lord THE KING) HE SHALL BE AMERCED and OTHERWAYES PVNISHED ACCORDING AS OF OLD TIME HATH BEEN USED TO BE DONE, within the ſaid Realme in the SAID CASE: Which relates unto and agrees expreſly with that forecited out of Modus tenendi Parliamentum. If then all the Judges and Peares in Parliament are bound to attend the Parliament, & not to depart without the Kings and Houſes leave under paine of Amercement and other puniſhment as this Statute reſolves, and 3. Ed. 3. 19. Fit. 2. C • ron. 161. Stamford. l 3. c. 1. f. 153. Cooke Inſtit. p. 15. 16. 17. 43 18. E. 3. Mo. 1. 2 8. and 31. H. 6. n. 46. (What fine were impoſed on abſent Lords) manifeſt then queſtionleſſe they ought of right to ſit in Parliament, elſe it were the height of Injuſtice thus to fine them. In the tenth yeare of King • .* Graf • o •• Cron. p. • . 〈◊〉 . 350. 2. this King abſented himſelfe from his Parliament then ſitting at Weſtminſter, reſiding at Eltham about forty dayes, and refuſing to come to the Parliament, and yet demanding from them foure fifteenes for maintenance of his Eſtate and outward Wars. Whereupon the whole body of the Parliament made this anſwer, THAT VNLESSE THE KING WERE PRESENT THEY WOULD MAKE THEREIN NO ALLOWANCE. Soone after they ſent the Duke of Glouceſter and Biſhop of Ely, Commiſſioners to the King to Eltham, who declared to him among other things in the Lords and Commons behalfe; how that by AN OLD ORDINANCE THEY HAVE AN ACT if the King abſent himſelfe 40. dayes not being ſicke, but of his owne minde, (not heeding the charge of his people, nor their great paines) and will not reſort to the Parliament, they may then lawfully returne to their Houſes. And now ſir (ſaid they) you have beene abſent a longer time, and yet refuſe to come amongſt us, which is greatly to our diſcontent. To which the King anſwered; Well, we doe conſider, that our owne people and Commons goe about to riſe againſt vs, wherefore we thinke wee can doe no better, then to aske ayd of our Coſen the French King, and rather to ſubmit us to him, then unto our owne ſubjects. The Lords anſwered. Sir, that Counſell is not beſt, but a way rather to bring you into danger &c. By whoſe good perſwaſions, the King was appeaſed, and Promiſed to come to the Parliament, and condiſcend to their Petitions, and according to his appointment he came, and ſo the Parliament proceeded, which elſe had diſſolved by the Lords departure thence in diſcontent, and the Kings wilfull abſence.

Andrew Horne in his Mirrour of Juſtices, in the raigne of King Edward the firſt, writes, That our Saxon Kings divided the Realme into 38 Counties, over which they ſet ſo many Counts or Earles, and though the King ought to have no Peers in his land, but PARLIAMENTS, all Writs and Plaints of the Moneys of the King, Queene, and their Children, and of thoſe eſpecially, who otherwiſe could not have common right of their wrongs. Theſe Companions are now called Counts after the latine word Comites. For to the Eſtates of the Realme King Alfred aſſembled the COƲNTS or Earles, and ordained by a Perpetuall Law, that twice a yeare or oftner, they ſhould aſſemble at London in Parliament to conſult of the Government of the people of God.

Fleta. l. 2. c. 2. p. 66. writes thus in the ſame Kings raigne. Habet enim Rex curiam ſuam in concilio ſuo in Parliamentis ſuis, PRAESENTIBUS Praelatis, COMITIBUS, BARONIBUS, PROCERIBUS, & alijs viris peritis vbi terminatae ſunt dubitationes, judiciorum, & moris injuriis everſis, nova conſtituuntur remedia. And l. 17. c. 17. he writes thus. Rex in populo regendo ſuperiores habet, Vidilicet legem perfactus eſt Rex; & Curiam ſuam, (to wit of Parliament.) videlicet, COMITES & BARONES. Comites enim a Comitia dicuntur, qui cum viderint Regem ſine froeno, Froenum ſibi apponere TENENTƲR, ne clament ſabditi: Domine Jeſu Chriſte in Chamo & froeno maxillas eorum conſtringe. Sir Thomas Smith in his Common-wealth of England.* Bracton l. 2. c. 〈◊〉 . l. 3. c 9. 〈◊〉 the like in the ſame words in Henry the 3. his reigne. l. 2. c. 1. John Ʋowel, and Ralph Hollinſhed, vol. 1. c. 6. p. 173. Mr. Cambden in his Britania. p. 177. John Minſhew in his Dictionary vuell in his Interpreter Title Parliament; Powell in his Attornyes Academy, and others, unanimouſly conclude. That the Parliament conſiſteth of the KING, the LORDS SPIRITVALL and TEMPORALL and the Commons; which STATES repreſent the body of all England, which make but one aſſembly or Court called the Parliament, and is of all other the Higheſt and greateſt Authority, and hath the moſt high and abſolute power of the Realme: And that no Parliament is or can be holden without the King and Lords, Mr. Crompton in his Juriſdiction of Courts, affirmes, particularly of the High Court of Parliament. f. 1. &c. This Court is the higheſt Court of England, in which the King himſelf fits in perſon, and comes there at the beginning and end of the Parliament, and AT ANY OTHER TIME WHEN HE PLEASETH ORDERING THE PARLIAMENT. To this Court come ALL THE LORDS OF PARLIAMENT, as well ſpirituall a • temporall, and are ſeverally ſummoned by the Kings writ at a certaine day and place aſſigned; The Chancellour of England and other great officers or Judges are there likewiſe preſent; together with the Knights, Citizens and Burgeſſes; who all ought to be perſonally preſent, or elſe to be amerced, and otherwiſe puniſhed if they come not being ſummoned, unleſſe good cauſe be ſhewed, or in caſe they depart without the Houſes or Kings ſpeciall licenſe after their appearance before the Seſſions ended: And he reſolves that the King, Lords and Commons doe all joyntly make up the Parliament, and that no Law nor Act of Parliament can be made to binde the ſubject, without all their concurrent aſſents.

Sir Edward Cooke not onely in his Epiſtle before his ninth Report and Inſtitutes on Littleton. p. 109. 110. But likewiſe in his 4. Inſtitutes (publiſhed by Order of this preſent Parliament. c. 1. p. 1. 2 &c) writes thus of the high & Honorable Court of Parliament. This Court conſiſteth OF THE KINGS MAJESTIE, ſitting there, as in his royall politick capacity, and of the three Eſtates of the Realme, viz. Of the Lords Spirituall, Archbiſhops and Biſhops, being in number 24. who ſit there in reſpect of their Counties or Barronies, parcell of their Biſhopricks, which they hold alſo in their politick capacity; and every one of theſe when the Parliament is to be holden, ought exdebito Juſtitiae, to have a writ of ſummons. The LORDS TEMPORALL, Dukes, Marqueſſes, Earles, Viſcounts and Barons, who ſit there by reaſon of their dignities which they hold by diſcent or creation: And likewiſe EVERY ONE OF THESE being of full age OUGHT TO HAVE a writ of ſummons EX DEBITO JUSTITIAE. The third eſtate are the Commons of the Realme, whereof there bee Knights of Shires or Counties, Citizens of Cities & Burgeſſes of Burro. All which are reſpectively by the Shires or Counties, Cities & Buroughs by force of the Kings writ, Ex debito Juſtitiae; and none of them ought to be omitted: and theſe repreſent all the Commons of the whole Realme, and truſted for them, and are in number at this time 493. Headed. And it is obſerved that when there is beſt appeareance, there is the beſt ſucceſſion in Parliament. At the Parliament holden in the 7. yeare of H. 5. holden before the Duke of Bedford Guardian of England, of the Lords Spirituall & Temporall there appeared but 30. in all: at which Parliament there was but one Act of Parliament paſſed and that of no great weight. In An. 50. H. 3. ALL THE LORDS APPEARED IN PERSON, and not one by Proxy: at which Parliament as appeareth by the Parliament Roll, ſo many excellent things were ſped and done, that it was called Bonum Parliamentum. And the King and theſe three eſtates are the great Corporation or the body of the Kingdome, & doe ſit in two Houſes, & of this Court of Parliament the King is Caput, Principium, & Finis. The Parliament cannot begin but by the Royall Preſence of the King either in perſon or repreſentation, by a Guardian of England, or Commiſſioners, both of them appointed under the great Seale of England, &c. And 42. E. 3. Rot. Parl. num. 7. It is declared by the Lords and Commons in full Parliament, upon demand made of them, on the behalfe of the King, That they could not aſſent to any thing in Parliament, that tended to the diſinheriſon of the King and his Crowne whereunto they were ſworne. And p. 35. he hath this ſpeciall obſervation; That it is o • ſerved by ancient Parliament men out of Record that Parliaments have not ſucceeded well in five caſes. Firſt, when the King hath beene in diffe • ence with his Lords and with his Commons. Secondly, When any of the great Lords were at variance betweene themſelves. Thirdly, When there was no good correſpondence between the Lords and Commons. Fourthly, When there was no vnity between the Commons themſelves (in all which our preſent Parliament is now moſt unhappy, and ſo like to miſcarry and ſucceede very ill.) Fiftly, When there was no preparation for the Parliament before it began: every of which hee manifeſts by particular inſtances.

From all theſe and ſundryJudge H •• rons Argument of Mr. Hampdens caſe. p. 32. 33. Daltons office of Sherriffs other Authorities, it is moſt evident & tranſparent, That both the King himſelfe and Lords, ought of right to be preſent in Parliament, and ever have been ſo, as well as the Commons: and neither of them to be excluded, ſince they all make up but one Parliament ought of right and duty to be preſent at, and no Lords and Commons to depart from it without ſpeciall leave, under paine of amercement and other penalties, becauſe no binding Law can be paſſed without their joynt conſents. And that the Commons alone are no more a Parliament of themſelves without the King and Lords, than the Common Councell of London are an intire Corporation without the Lord Major, Aldermen; or the Covent without the Abbot; the Chapter without the Deane, or the leggs or belly a perfect man without the head, or neck.

Sixtly, The ancient and conſtant forme of endorſing Bills in Parliament begun in the Commons Houſe in all Parliaments ſince the Houſes firſt divided,33. H. 6. 17. Brooke Parliament. 4 Cromptons jurisdiction of Courts. f. 8. Mr. Hackuel of the manner of pasſing Bills in Parliament. unanſwerably demonſtrates the Commons of Englands acknowledgment of the Lords right to fit, vote, aſſent or diſaſſent to Bills in Parliament. viz. SOIT'BAYLE A SEIGNEURS: let it be delivered or ſent up to the Lords. Yea, the Commons conſtant ſending up of their own Members, with Meſſages to the Lords, and receiving Meſſages from them, and intertaining frequent conferences with them in matters where their opinions differ, in which conferences the Lords uſually adhere to their diſſents, unleſſe the Commons giveth emſatisfaction and convince them, and the Lords oft times convince the Commons, ſo farre as to conſent to their alterations of Bills, Ordinances, Votes, and oft to lay them quite afide; is an unqueſtionable argument of their Right to ſit and vote in Parliament; and of their Negative Ʋoyce too: All which would prove but a meer abſurdity and ſuperfluity if the Commons in all ages and now too, were not convinced, that the Lords had as good right to ſit and vote in Parliament, and a Negative and diſſenting voyce, as well as they, never once queſtioned or doubted till within this yeare or two, by ſome ſeditious Diſciples of Lilburnes and Overtons entering, who endeavoured to evade their juſtice on them.

Seventhly, This juſt Right of the Lords is expreſly and notably confirmed by all the Commons of England in the Parliament of 31. H. 8. c. 10. concerning the placing and ſitting of the Lords and Great Officers of State in the Parliament Houſe; made by the Commons conſent, It being in vaine to make ſuch a Law, (continuing ſtill till this very day both in force and uſe) if they had no lawfull right to fit and vote in Parliament, becauſe they are not elective, as Knights, and Burgeſſes are. And by the Statute of 39. H. 6. c. 1. made at the Commons own Petition to repeale the Parliament and all proceedings of it held at Coventry the yeare before, by practice of ſome ſeditious perſons, of purpoſe to deſtroy ſome of the great Nobles, faithfull and Lawfull Lords and Eſtates, meerly out of malice, and greedy and unſatiable coveteouſneſſe to poſſeſſe themſelves of their lands, poſseſſions, Offices and goods, whereby many great Injuries, Enormities, and Inconveniences, well nigh to the ruine, decay, and univerſall ſubvertion of the Kingdome, enſued. The very deſigne of our Lilburniſts, Sectaries, and Levellers now; out of particular malice and coveteouſneſſe, to ſhare the Lords and all rich Commoners lands and eſtates between them, being poore and indigent covetuous people for the moſt part, ſcarce forty of them worth one groat, at leaſt before theſe times.

This apparent Right of theirs, is undeniably ratified and acknowledged not only by the very words of the writs by which the Lords themſelves are ſummoned to the Parliament, but even of the writs for election of Knights and Burgeſſes, the forme and ſubſtance whereof are ancient, and can receive NO ALTERATION NOR ADDITION but by Act of Parliament, asInſtitutes. 4 p. 10. Sir Edward Cooke reſolves, By this writ the Prelates, Nobles and others of the Realme are ſummoned to the Parliament there to treat and conferre with the King, of the arduous and • rgent affaires of the Realme and Church of England: as the firſt clauſe of the writ. Carolus &c. quia, &c. pro quibuſdam arduis & 〈◊〉 negotiis Nos, Statum & defenſionem Regni noſtri Angliae, & ••• l • ſiae Anglicanae concernent: quiddam Parliamentum noſtrum & teneri ••••• avimus; & ibidem, cum Praelatis, MAGNATIBUS & PROCERIBUS dicti Regni noſtri COLLOQUIUM HABERIET TRACTARE, Tibi praecipimus, And the Commons are ſummoned, to performe and conſent to thoſe things which ſhall there happen to be ordained by this Com. Coun. of the Kingdom, &c. And if they are thus ſummoned, not to treat amongſt themſelves as an independent and intire Parliament, but to confirme and conſent to what the King, Prelates, Great men, and Peers, the Common Councell, of the Realm ſhall ordaine about ſuch affaires, as they muſt of neceſſity admit the King, Lords and Peers to be altogether as eſſentiall (yea more principall eminent Members) of Parliament though not elective, as the Knights & Burgeſſes, who are but ſummoned to conſent to & performe what ſhall happen there by common adviſe to ordaine, or at leaſt to conſult and adviſe with them, as their inferiors; not to over-rule them, as their ſuperiors, and the only Supream power in the Kingdom; and if they will totally exclude either King or Lords from Parliament, who are diſtinct & eſſentiall Members of it as well as the Commons, and have always been ſo reputed untill now, the Commons may ſit alone as Cyphers, but not as a Parliament, to vote or act any thing that is binding to the people; ſince though in extraordinary caſes for the ſaving of the Kingdome, they may ſecurely uſe extraordinary meanes & proceedings, yet regularly they are no more a Parliament without the King, & Lords, thē the King or Lords alone are a Parliament without the Commons; or the trunke of a man, a perfect man without a head or ſhoulders. IfDyer. 61. 62. Cooke. 5 Report f. 90. 91. 94. 120. 121. v. 1. Rep. 111. 173 19. R. 8. 9. Br. executors 3. 15 11. 7. 12. 3. be joyntly impowred or commiſſioned to doe any act by Commiſſion Deed, or Warrant, any one or two of them can do nothing without the 3d. If many be in Commiſſion of the Peace, Sewers or the like and three of the Quorum joyntly, & act there joyntly, if any one of the three be abſent all the reſt can do nothing, In Parliament it ſelfe, If either Houſe appoint a Committee of 3. 5. or 7. to examine act or execute any thing, if but one of this number be abſent or put out, the reſt can doe nothing, that is legall or valid even by courſe of Parliament, neither can either Houſe ſit and vote as a Houſe unleſſe there be ſo many Members preſent, as by the Law and cuſtome of Parliament will make up an Houſe as every mans experience can informe him. If theſe Levellers then will abſolutely cut off or exclude the King or Lords from the Parliament, they abſolutely null and diſſolve it: and the Act • or c • ntinuing this Parliament cannot make nor continue the Commons alone together as a Parliament, no more then the Lords or King alone without the Commons; the King or either Houſe alone being no Parliament, but both conjoyned and enlivened with the Kings perſonall or repreſentative preſence. The cutting of the head alone, or of the head and ſhoulders, altogether deſtroyes and kills the body Politicke and Parliament, as well as the body naturall, If the King dies or reſignes his Crowne, or be depoſed, the Parliament thereby is actually diſſolved, as it was reſolved in the Parliament of 1. H. 4. n. 1. 2. 3. and 4. F. 4. 44. And ſo if the Lords or Commons diſſolve and leave their Houſe, without any adjournment, the Parliament is thereby diſſolved, as the forecited preſidents, and the latter clauſe of the writ for the election of Knights and Burgeſſes manifeſts. And a new kind of Parliament conſiſting onely of Commoners, when the old one (onely within the Act for continuing this Parliament made up both of King, Lords, and Commons) is diſſolved; neither will or can be ſupported or warranted by the letter or intention of this Law.

Ninthly, All the Petitions of the Commons in all Parliaments ſince the Conqueſt to the King, or Peeres for their redreſſe of grivances recorded in many ancient Parliament Roules: All Acts of Parliament extant uſually runne in this forme Cooke 4. Inſtit. c. 1. The King with the aſſent of the Lords Spirituall and Temporall in Parliament hath ordained, and be it enacted by the Kings moſt Excellent Majeſty, the Lords Spirituall and temporall in this preſent Parliament aſſembled. The famous Petition of Right. 3. Car. ſo much inſiſted on, beginning thus, Humbly ſhew unto our Soveraigne Lord the King, the Lords ſpirituall and Temporall and Commons in Parliament aſſembled; thus anſwered by the King; Let right be done as is deſired. The Act of continuing this Parliament made by the King and Lords, as well as by the Commons, (who never intended to exclude themſelves out of this Parliament by that Act, or that it ſhould continue if either of them were quite diſmembred from it,) with all Acts and Ordinances ſince. Yea the Proteſtation, Solemne League and Covenant, taken by the Commons and Lords, & preſcribed by them to all others throughout the three Kingdomes, which couple the Lords and Commons alwaies together, (neither of them alone being able to make any binding Ordinance to the ſubjects unleſſe they both concurre, no more than one Member alone of either Houſe can make a Houſe) and ranck the Lords alwaies before the Commons, and the King before them both; ſo firmely hold forth, eſtabliſh the Lords and Kings undoubted Right to ſit, and Vote in Parliament, and decry this new mounted Monopoly of a ſole Parliament, of Commons without King or Lords, & that abſolute Soveraigne Power theſe new Lights have ſpied out and ſet up for them in Vtopia, that impudency it ſelfe would bluſh to vent ſuch mad, abſurd, irrationall Frenzies and Paradoxes as theſe crackbrain'd perſons dare to publiſh, and they may with as much truth & reaſon argue, that one man is three, & that the Leggs and trunke of a man are a perfect man without head, necke, armes and ſhoulders; or that the Leggs and Body are and ought to be placed above the head, neck and ſhoulders; as that the Houſe of Commons are or ought to be an entire Parliament; the ſole Legiſlative Power, the onely Supreame Authority paramount both King & Lords, who muſt not have now ſo much as a Negative voyce to deny or contradict any of the Commons Ʋotes, or Ordinances, though never ſo raſh, unjuſt, diſhonorable, prejudiciall or dangerous to the whole Kingdome.

Tenthly, Theſe very Sectaries and Levellers themſelves have acknowledged and aſſerted this Right of Power of the Lords all along this Parliament till of late, c See innocency and truth juſtified. p. 74. 75. Mr. Edwards Gangraena▪ part. 3. p. 156 157. where his words & contradictions in this kinde are receited at larg. as appeares by their ſeverall Petitions and Complaints to them upon ſundry occaſions heretofore; by their reſorting to them for Juſtice againſt Strafford, Canterbury, and others; Yea John Liburne himſelfe, till his late quarrell with them, not onely acknowledged their very power of Judicature, but highly applauded their Juſtice, in his owne cauſe, Petitioning and ſuing to them not onely for reverſall of the ſentence againſt him in Starchamber, but likewiſe for dammages and reparations againſt his Proſecutors, • leading his cauſe by his Counſell before them, as his proper Judges; who thereupon by Judgement of the Houſe vacated the Decree againſt him, as illegall; voted him Dammages, and paſſed him an Ordinance for the recovery and levying thereof; all which he himſelfe both publiſhed in ſundry of his printed Pamphlets, wherein he acknowledgeth and extolleth their Juſtice. Take but one paſſage for all in his Innocency and Truth juſtified p. 74. 75. If I be tranſmitted up to the Lords, and confidently beleeve I ſhall get forward, out of the former experiences of that Juſtice that I have found there, and I will inſtance two particulars. Firſt, when I was a Priſoner in the Fleet, and ſecondly May the fourth, one thouſand ſixe hundred forty one. The King accuſed mee of High Treaſon, and before the Lords barre was I brought for my life, where although one Littleton, ſervant to the Prince, ſwore point blanke againſt mee, yet had I free liberty toHe did not then demurr to their Juriſdiction. ſpeake for my ſelfe in the open Houſe; And upon my deſire that Maſter Andrewes alſo might declare upon his Oath what hee knew about my buſineſſe, it was done; And his Oath being abſolutely contradictory to Maſter Littletons, I was both freed from Littletons malice, and the Kings accuſation at the Barre of the whole Houſe: And for my partNota. I AM RESOLVED TO SPEAKE WELL OF THOSE THAT HAVE DONE ME JUSTICE; and not to doubt THEY WILL DENY IT MEE, till ſuch time as by experience I finde they doe it.

And at that time he was ſo much for the Lords, that he writes moſt diſgracefully, derogatorily of the Commons (and other his Confederates by his example) and of their want of power, injuſtice, and proceedings,His • etter to a friend-Innocency and truth juſtified. His • etters to the Generall Hen. Martin, & L. G. Cromwell Englands Birthright See Mr. Edw. Gangraena. part 3. p. 146. to 228. quarrells onely with them, and their Committees for their delayes and injuſtice towards him: telling them to their faces in many of his former, and late printed Libels: That they have no power at all to commit or examine him, or any other Commoner of England without the Lords: nor yet to give or take an Oath: That they are but a peece and loweſt part of the Parliament, not a Parliament alone, That they can make no binding Votes, Ordinances or Lawes, nor commit, nor command any Commoner, without the Lords, and in one or two Pamphlets he endeavours to prove them to be now no lawfull Houſe of Commons at all, nor would hee ever acknowledge them to be ſo, and that he would make no more conſcience of cutting theirs and the Lords throates, (the Tyrants and Oppreſſors, at Weſtminſter) then of killing ſo many Weaſels and Polcats; with many other like ſcurrilous and mutinous expreſſions. His owne printed Papers, Petitions and Actions therefore are an unanſwerable confutation of his malicious contradictions of their Authority and judicature ſince, for their exemplary juſtice on him: and he muſt either now re-acknowledge their right of ſitting, voting, and judging in Parliament to be lawfull, or elſe renounce his owne former Petitions and addreſſes to them for juſtice, retract all his former printed Papers aſſerting their Power and judicature, and extolling their juſtice; yea diſclaime their judgment for vacating his owne Sentence, in the Starchamber, their awarding him Dammages, and paſſing an Ordinance to recover them, as meerly null and voyd, being made before no lawfull or competent Judges, as now he writes, ſince not elected, by the peoples Votes. And let thoſe his followers who admire him for his Law, obſerve theſe his palpable and invincible contradictions, and be aſhamed and afraid to follow ſuch an ignorant and erronious guide, who writes onely out of malice, and faction, not of judgement, as his contradictions evidence. 11ly. The Acts for preventing the inconveniences happening by the long intermiſſion of Parliaments. And to prevent the inconveniences which may happen by the untimely adjourning proroging, or diſſolving the Parliament, made this Parliament, and aſſented to by the King at the Commons importunity, confirme the Lords interreſt and right to ſit and Vote in Parliament beyond all diſpute, and give them an • w power to ſummone a Parliament themſelves in ſome caſes.

•• ly. The ancient forme ſtill continued till this day of diſmiſſing Parliaments and diſſolving them, by the Kings licenſive, THE LORDS and COMMONS TO DEPART HOME and TAKE THEIR EASE. 37. E. 3. n. 34. 38. E. 3. n. 18. 40. E. 3. n. 16. 43. E. 3. n. 34. 45. E. 3. n. 8. 13. 47. E. 3. n. 7. and all Parliaments ſince) proves their right of ſitting in, and attending the ſervice of the Parliament in perſon (without ſpeciall licence of the King) during its continuance, in diſpite of all ignorant cavils to the contrary.

Having thus impregnably evinced the Lords undoubted right to ſit and vote in Parliament, though they be not elective by the peoples voyces as Knights and Burgeſſes are; I ſhall next diſcover unto our illiterate Ignoramuſſes, who oppoſe this their right, the juſtice and good grounds and reaſons of our Anceſtors, why they inſtituted the Lords and Peers to ſit and vote in Parliament by right of their Nobility and Peerage; which will abundantly ſatisfie rationall men, and much confirme their right.

Firſt, the Nobles and Great Officers in all Kingdomes, and in our Kingdome too, in reſpect of their education, birth, experience and imployment in State-affaires, have alwayes been generally reputed the wiſest and beſt experienced Common-wealths men, beſt able to adviſe and Councell the King and Kingdome in all matters of Government, Peace, or War; as our Hiſtorians, Antiquaries, Polititians and Records, acknowledge and atteſt; whence they were antiently ſtiledMr. Selden • Titles of honour part 3. ch. 5. Sir Edward Cookes Epiſtle to the 9. Report: and • Inſtit. p. 120. 4. Inſtit. p. 2. Cambdens Brit. p. 177. Spelmanni Concil. Tom. 1. Aeldermen, Wiſemen; Magnates, Optimates, Sapientes, Sapientiſſimi, & Clariſſimi viri: Conspicui Clari que viri, Primates, Nobiles, &c. in our Hiſtorians and Records: and our Parliaments in that reſpect are frequently ſtiled in ancient times Conſilium SAPIENTVM: upon which Grounds our Kings (and1. E. 3. n. 36. 55, 56. 45 E. 3. n. 15, 16. 50 E. 3. n. 10. to 14. 1 R. 2. n. 10. to 27 47 50, 51. 112, 113. 17 R. 2. c. 1 2. 13 R. 2. n. 6, 7. 17 R. 2. n. 17 18. 8 H. 4. n. 31. to 92. 11 H. 4. n. 14. 28. 39. 44. 13 H. 4. n. 11. Commons too, when ever they recommended Councellors of State to the King in Parliament) made choice of See the Soveraigne Power of Parliaments part 1. and 2. Lords and other Peers for their Privy Councellors) and therefore it was thought fit, juſt and equall the King ſhould ever ſummon them to the Parliament by his Writ, without any election of the people,Mr. Pryns Truth Triumphing over falſhood. p. 56. to 70. Stat. de 4 E. 1. c. 2. Lambert Archaion. for their own inherent wiſdome, excellency and worth, the Originall cauſe of advancing and ennobling them at firſt, as is expreſſed in their Patents: and evident by theſe Scripture texts. Eſth. 1. 13, 14. Iſay 59. 11, 12, 13. Jer. 5. 5. c. 10. 7. c. 51. 57. Dan. 2. 48. c. 6. 1, 2, 3. Gen. 41. 39, 40. Pſal. 101. 21, 22. compared together. This ground of calling the Nobles to the Parliament, is intimated in the very words of the ſummons: Et ibidem VOBIS CUM Coloquium habere & tractare de arduis & urgentibus Regni & Eccleſiae Anglicanae negociis VESTRUM QUE CONSILIUM IMPENSUR: &c. Et hoc nullatenus omittatis; which implies them to be men of wiſdome and experience able to counſell and adviſe the King in all his weighty and arduous affaires both of the Kingdome and Church: I could give many inſtances wherein the Commons in Parliament have extraordinarily applauded the Lords and Peers for their great wiſdome, and eſpecially deſired their wholeſome Counſell, as perſons of greater wiſdome and experience then themſelves: but for brevity ſake, I ſhall cite onely two Records; one of them moſt ſutable to the preſent deplorable condition of our State, and worthy imitation: In the Parliament of 21 Edw. 3. no. 45. William de Thorpe in the preſence of the King, Prelates, Earles, Barons and Commons declared, that the Parliament was called for two cauſes: The firſt concerning the Wars which the King had undertaken by the conſent of the Lords and Commons againſt His Enemies of France. The ſecond, how the Peace of England may be kept. Whereupon▪ the King would the Commons ſhould conſult together, and that within four daies they ſhould give anſwer to the King and His Counſell what they think therein. On the fourth day the Commons declare, THAT THEY ARE NOT ABLE TO COUNSEL ANY THING TOUCHING THE POINT OF WAR; wherefore they deſire in that behalf to be excuſed: And that the King will thereof ADVISE WITH HIS NOBLES AND COUNCEL; and what ſhall be ſo amongſt them determined they the Commons will thereto aſſent, confirme and eſtabliſh. By which it is evident the Commons then reputed the Nobles more wiſe and able to adviſe the King in matters of War then themſelves, who confeſſed their inability herein, and therefore ſubmitted to aſſent to whatever the Nobles and Councel ſhould therein adviſe Him. 28 Edw. 3. n. 55. The Commons ſubmit the whole buſineſſe of the Treaty of Peace with France, TO THE ORDER OF THE KING, AND OF HIS NOBLES. And • 6 Edw. 3. n. 6. The LORDS only adviſe the King touching Truce or War with Scotland. In the firſt Parliament of 15 Edw. 3. n. 11. the Commons having delivered in divers Articles concerning the redreſſe of grievances and publick affaires to the King, prayed, that unto the Wedneſday enſuing their Articles may be committed to certain BISHOPS, BARONS, AND OTHER WISE MEN there named, BY THEM TO BE AMENDED: which the King granted: whereas the Lords exhibited their Articles 〈◊〉 to the King, and the Biſhops their Articles apart in this Parliament, and proteſted that they ought not to anſwer but in open Parliament BY AND WITH THEIR PEERES; without joyning with the Commons, num. 6, 7, 18, &c. 26, 27, 35, 37. which courſe they held in moſt following Parliaments.

I ſhall conclude with one Preſident more moſt ſuitable to the preſent deplorable condition of our State, and worthy imitation.

In the Parliament of 5 Hen. 4. Rot. Parl. num. 9. 10. The Commons having preſented to the King in Parliament divers grievances, in the ill managing of His Revenues, the decay of His Caſtles, Houſes, and Parks; the great poverty and preſſures of His Subjects, and danger of the Enemies: thereupon they moſt intirely and cordially prayed the King to conſider the eminent perils of all parts of the Realm by reaſon of the Enemies and Rebels, of which they had news from day to day, and that as the caſe then ſtood, if ſuch miſchiefs were not ſpeedily and graciouſly remedied and reformed in this Parliament, it might fall out upon ſodain arivall of Enemies, or by ſome other means this Parliament muſt of neceſſity be departed from by all and diſſolved, ſo as the Lords and Commons ſhould never re-aſſemble again to redreſſe the ſaid Miſchiefs and others, which God defend. And therefore that it would pleaſe the King conſidering the HIGH WISDOMES AND DISCRETIONS OF THE LORDS, and that THEY HAD KNOWLEDGE OF MANY PERILS AND MATTERS which could not be ſo clearly known to the King, that he would now in this preſent Parliament charge ALL HIS LORDS Spirituall and Temporall, upon the faith they principally owe to God, and the faith, Homage and Allegiance which they owe to our Lord the King himſelf, for the aid and ſalvation of themſelves, and of all the Realm, that the ſaid Lords WOULD COUNSEL and ſhew Him their advice and WHOLSOME COUNSEL IN THIS BEHALF SEVERALLY & INTIRELY without diſſimulation, or adulation, having regard to the great miſchiefs and neceſſity aforeſaid. And thereupon our Lord the King most graciouſly, with His own mouth in full Parliament, charged and commanded as well the Lords, as the ſaid Commons, that they ſhould do their diligence, and ſhew unto Him their good and wholſome Counſels in this behalf, for the aid of Him and all His Realm. And after the ſaid Commons in the ſame Parliament, made requeſt to the ſaid Lords, that ſeeing the King had given them ſuch a charge and command, and that in ſo high a manner of Record, that they would do their diligence well and loyally, to perſever the ſame without any courteſie made between them in any manner, as they would anſwer before the most High, and before our Lord the King, and to all the Realm in time to come; and that the Commons themſelves thereupon would do the like on their party. Which if both Lords and Commons would now cordially and ſincerely promiſe and ingage to do, without ſelf-ends or intereſts, we might ſee our Church and Kingdome ſpeedily ſetled in a peaceable and happy condition. In brief, the Lords in the very Writ touching Knights and Burgeſſes, are ſtiled, The Common Councell of the Kingdome, and the Knights, Citizens, and Burgeſſes, are called, to inform and aſſent to that which they and their King ſhall Ordain, and 5 Ric. 2. Parl. 2. n. 3. 6 R. 2. n. 8, 9, 11, 26. and Parl. 2. R. 2. n. 7, 9. they are called the GREAT COUNCEL OF LORDS by waging of their extraordinary wiſdome and abilities. And therefore moſt fit to ſit, vote, and judge in Parliament.

Secondly, The Lords and great Officers of the Realme, as ſuch were ever reputed perſons of greateſt Valour, Courage, Power, (in regard of their great intereſts, Eſtates, allies, and retainers) and ſo beſt able to withſtand, and redreſſe all publike grievances, and enchroachments, of the King upon their owne and the peoples Liberties, in defence whereof they have in ancient times been alwayes moſt ready and active to ſpend not only their eſtates, but blood and lives for, wherewith they have redeemed and preſerved thoſe Liberties and Freedomes we now enjoy and contend for. And in this regard our anceſters in point of wiſdome, policy and right, thought meet, that they ſhould alwayes be ſommoned to, and bear chief ſway in our Parliaments, in reſpect of their Peerage, Power and Nobility only without the peoples election. This reaſon of their ſitting in Parliament, we find expreſly recorded in Bracton, l. 2. c. 16. fol. 34. and in Fleta, l. 1. c. 17. The King (ſay they) hath a Superiour, namely, God; alſo the Law, by which He is made a King; likewiſe His Count, to wit, THE EARLS & BARONS, becauſe they are called Counts as being the KINGS FELLOWS, and he who hath a Fellow, hath A MASTER. And therefore if the King ſhal be without a bridle, that is, without a Law; debent ei fraenum imponere, THEY OUGHT TO IMPOSE A BRIDLE ON HIM, &c. which the Commons being perſons of leſſe power and intereſt were unable to do. Andrew Horn in his Mirrour of Juſtice, ch. 1. §. 2, 3. renders the like reaſon. In all the conteſt and Wars between K. John, Hen. 3. Edw. 2. & Rich. 2. concerning Magna Charta, and the Liberties of the Subjects, the Lords & Barons were the Ringleaders and chief Oppoſers of theſe Kings Uſurpations and Encroachments on the people, as all our See Mat. Paris, Matthew Weſtminſter, Walſingham, Huntingdon, Holings head, Polythronicon, Coxton, Grimſ • on, Stow, Speed, Truſſell, Baker, Martin, Daniel, How, and the Soveraign Power of Parliaments & Kingdomes, part. 1, 2. & 3. 10 R. 2. c. 1, 2. 11 R. 2. c. 1. to 7. 21 R. 4. c. 7. to 13. • H. 4. c. 2. for proof hereof. Hiſtories and Records relate; whence they ſtile the Wars in their times, THE BARONS WARS: and before this, the Nobles were the principall Actors in reſiſting the Tyranny of K. Sigebert, and K. Bernard, and diſthroning them for their miſdemeanors, as is clear by Mat. Weſtminſter in his Flores Hiſtoriarum, an. 756. & 758. To give ſome brief hints to clear this truth.

An. Dom. 1214. In the 16. year ofMat. Paris: Hiſt. Angl. p. 233. to 282. Daniel p. 140. to 144. Speed p. 558. to 567. K. John a Parliament held at Pauls, July 16. the Charter of Liberties granted to the people by K. Hen. 1. being read and confirmed, THE BARONS ſwore in the Arch-biſhops preſence, that if need were, they would ſpend thier blood. And afterwards at St. Edmonds Bury, the BARONS ſwore upon the High Altar, That if K. John refuſed to confirm and reſtore to them thoſe Liberties (the Rights of the Kingdom) they would make War upon Him, and withdraw themſelves from His allegiance, till he had ratified them all by His Charter under Seal. Which they accordingly performed. Tota Angliae Nobilitas in unum collecta, all the NOBILITY OF ENGLAND COLLECTED INTO ONE appeared in this defence of their own and the peoples Rights and Liberties againſt the King: whereupon it was afterwards enacted, That there ſhould be 25 BARONS choſen by the LORDS (not Commons) who ſhould, to their utmoſt power, cauſe the Great Charter confirmed by K. John, to be duly obſerved; That if either the King or His Juſticier ſhould tranſgreſſe the ſame, or offend in any one Article, 4. of the ſaid BARONS ſhould immediately repaire to Him, and require redreſſe of the ſame without delay: which if not done within forty daies after, that then the ſaid 4. BARONS and the reſt ſhould diſtrain and ſeize upon the Kings Caſtles, Lands and Goods, till amends was made according to their arbitration: Such confidence and power was then repoſed in the BARONS alone.

Hiſt. Angl. p. 233. Mat. Paris, ſpeaking of the death of Geoffry Fitz-Peeter, one of the greateſt Peers of that age, writes thus of him, This year (an. 1214.) Geoffry Fitz-Peeter Juſticiary of all England, a man of great power and authority, TO THE GREATEST DETRIMENT OF THE KINGDOM, ended his daies the 2 day of Octob. ERAT autem FIRMISSIMA REGNI COLƲMNA, for he was the moſt firm pillar of the Kingdom, as being a Nobleman, expert in the Laws, furniſhed with treaſures, rents, and all ſort of goods, and confederated to all the great men of England by blood or friendſhip: whence the King without love did fear him above all men, for he governed the raynes of the Kingdom. Whereupon after his death, England was become like a ſhip in a ſtorm without an helm. The beginning of which tempeſt was the death of Herbert Arch-biſhop of Canterbury, a magnificent and faithfull man, neither could England breath again after the death of theſe two. When K. John heard of Fitz-Peeters death, turning to thoſe who ſate about him, He ſaid, By Gods feet▪ now am I firſt King and Lord of England. He had therefore from thenceforth more free power to break His Oaths and Covenants which He had made with the ſaid Geoffry for the peoples Liberty and Kingdoms peace. Such Pillars and Staies are great and ſtout Peers to a Kingdom, & Curb to tyrannicall Kings; and therefore of mee • Right ought to have a place and voice in Parliaments, for the very Kingdoms ſafety and welfare, without the peoples election.

In the 43 year of K. Hen. 3. his reign. Mat. Paris p. 952. 953. Speed, p. 636. Daniel, p. 178. The Barons of England entred into a ſolemn Oath of Aſſociation upon the Evangeliſt, to be faithful and diligent to reform the Kingdom of England, hitherto by the counſel of wicked perſons overmuch diſordered, and eff ectually to expel the Rebels and diſturbers of the ſame; which Oath they made Richard Earl of Cornwall to take, as wel as others. In theſe Barons wars for the Subjects Liberties, many hundred Lords and Barons ſpent both their blood, lives, and eſtates: and among others Simon Mulford Earl of Leiceſter, the greateſt Pillar of the Barons, ſlain in the batail of Euſham; of who • In his Continuation of Mat. Paris, p. 968. & Daniel, p. 178. R • ſhing • r thus writes, Thus this magnificent Earl Simon ended his daies, who not only beſtowed his eſtate but his perſon and life alſo, for relief of oppreſſion of the poor, for the aſſerting of Juſtice and the Right of the Realm.

In the 3, 4, 14, & 15. of K. Edw. 2. his raign, the Barons were the chief Sticklers againſt Gaveſton, and the Spencers, who ſeduced the King, and oppreſſed the people: and principall Pillars of our Laws & Liberties, as ourWalſingham, Holingſhed, Daniel, Speed, Stow, Grafton, Fabian, Baker. Hiſtorians relate at large, & procured th • ſe ill Counſellours to be removed from the King even by force of Arms.

In 10, 11, & 22. of K. Rich. 2. the Lords were the principall oppoſers of the Kings ill Counſellours, and Tyranny and protectors of the Laws and peoples Liberties, to the loſſe of ſome of their lives, h • ads and eſtates, as our Statutes and Rolls of Parliament in thoſe years, andWalſingham, Truſſle, Fabian, Holingſhed, Grafton, Speed, Stow. Hiſtorians witneſſe: whence Walſingham writing of the Duke of Glouceſter's death, murthered by the Kings command at Calice, who was the principall Anti-royaliſt and head of all the Barons, uſeth this expreſſion, Thus died this •• ſt of men, the Son (and Earl) of a King, in quo poſita fuere ſpes & ſolatium TOTIVS REGNI COMMVNITATIS, in whom the hope and ſolace of the Common-wealth, of the whole Kingdom were placed: who reſented his death ſo highly, that in the Parl: of 1 H. 4. Hall, who had a hand in his murder, was condemned and executed for a Traytor, and his Head and Quarters hung up in ſeverall places, and K. Richard among other Articles depoſed, for cauſing him to be murthered.

Since then our Pe • trs and Nobles have been alwaies perſons of greateſt valour, power, eſtate, intereſt, moſt able and forwards to preſerve the Laws and peoples Liberties, which they have upon all occaſions defended with the hazard and loſſe of their Lives, Liberties, and Eſtates, and upon this ground were thought meet by the wiſdome of our Anceſtors, to enjoy this priviledge of ſitting, voting and judging in Parliament by vertue of their Peerage and Baronnies: And ſince we muſt all acknowledge, that the Lords were the chiefe inſtruments of calling this preſent Parliament, and were therefore in the Act for Trienniall Parliaments, principally intruſted to ſummon and hold all future Parliaments in the Kings, and Lord Chancellours, or Lord Keepers defaul •• : and were very active in ſuppreſſing the Star-chamber, High-Commiſſion, Councel-Table, Prelats, and other grievances, and thoſe who firſt appeared in the Wars againſt the King and his party, to the great encouragement of others, (witneſſe the deceaſed Lord Generall Eſſex, Brooke, Bedford, Stamford, Will • ngh by, Lincolne, 〈◊〉 , Mancheſter, Roberts, and others) it would be the extremity of folly, ingratitude and injuſtice to deny our Peeres this Priviledge and Honour now, which their Anceſtors have purchaſed at ſo deare a rate; and a meanes to diſ-ingage them for ever from the Commons, and Republike, for ſuch an high diſhonour and affront.

Thirdly, ourSee Maſter S • ld • us Titles of Honour, Part 2 chap. 5. and Coke 4. inſtit. p. 1. Nobles are perſons of greater Eſtates Families & Fortunes then others, and have more to keep and loſe then other ordinary Commoners; and therefore have greater intereſt in the Common-wealth and State-affaires then they. And therefore our Anceſtors thought it meet and juſt that they ſhould have this priviledge among others above ordinary Commoners, to be preſent in all our Parliaments, by Writ onely, and that of right ex debit • juſtitiae; and not by election, as Knights, Citizens, and Burgeſſes are, being perſons of meaner eſtate and quality; and preſent in Parliament onely in the right of others who elect them, not in their owne right, as the Lords are, whoſe eſtates anciently were far more worth then many whole Burroughes put together; and their families, retainers and followers far more in number. And ſo their engagements to maintaine the Lawes, Liberties and Properties of the Subject, greater then inferiour mens.

Fourthly, It is one principall property of Members of Parliament to be Coke 4. Inſt. p. 3. conſtant, ſtout, inflexible, and not to be bowed or turned from the right and publike good, by feare, favour, promiſes, rewards. Now Peeres of noble birth and education, and more generous heroick ſpirits then the vulgar ſort of men, are not ſo apt to be over-awed with regall threats, terrified with menaces, tempted with honours, preferments, and wealth, (which they already injoy in a higher proportion then others) nor ſeduced with rewards and private ends from the common good and intereſt, wherein their honour, wealth and ſafety are imbarqued; as ordinary Commoners, and men of meaner ranke and fortunes, as experience of former Ages, and this preſent manifeſts. Therefore it was thought juſt and reaſonable by our Anceſtors, theſe Nobles in this regard ſhould ſit in Parliament in their owne rights,* Modus tenendi Parliam Vowel. Coke 4 Inſt. c. 1. without the peoples election; and to leave the people to elect ſuch other perſons to repreſent and vote for them in Parliament in whom they moſt confided.

Fiftly, our Peeres in Parliament12 R. 2. c. 1 • . 23 H. 6. c. 11. 9 H. 6. c. 16. 31 H. 8. c. 11. 50 E. 3. n. 209. 1 R. 2. n. • 37. (though they ſerve for the common good of the whole Kingdome, which have alwayes truſted in them, in matters of counſel, Judicature, and making Laws) yet they repreſent up perſons but themſelves onely, and beare their owne expences: Wherefore there is no ſhadow of reaſon why the people ſhould elect them, ſince they doe not repreſent them, nor pay them wages, as they doe to their Knights, Citiz • ns and Burgeſſes, who ſerve for, and repreſent them, and therefore ought in reaſon, right and juſtice to be elected by them. And therefore they may as well argue. That our Nobles ought to be elected by the people to their Lands and Eſtates, which deſcend unto them from their Anceſtors, not from the common people, as to ſit in Parl • ament by the peoples election, onely to repreſent themſelves in their own right, not the people in theirs. And that the Knights of the Shire ought to be elected to their dignity of Knighthood (which the King onely confers on them) and to their Lands and Freeholds, which they enjoy in their owne right, becauſe they are elected by the Free-holders to ſit in Parliament in their right who elected them, not their owne alone, which Barons doe not.

By all which premiſſes it is moſt apparent, That our Lords and Barons ſitting and voting in Parliament, (who if you take them poll by poll, have in all ages been more able Parliament men, and States-men in all reſpects, then the Commons, though choſen by the people, who alwayes make choice of the beſt and wiſeſt men, as experience manifeſts) is not onely juſt and lawfull in reſpect of Right and Title, but originally inſtituted upon ſuch grounds of Reaſon and Policy, as no rationall nor underſtanding man can diſlike or contradict, but muſt ſubſcribe to as neceſſary and convenient, and ſo ſtill to be continued & ſupported in this their Right and Honour, to moderate the Exceſſes and Encroachments both of King and Commons one upon the other & keep both of them within their juſt and ancient bounds, for the Kingdomes peace & ſafety. The rather for that the very Act made this Parliament for the preventing of inconveniences happening through the long intermiſſion of Parliaments, not onely enacts, but requires all the Lords and Barons of this Realme, to meet and ſit in every Parliament, under a penalty, but likewiſe preſcribes an Oath to the Lord Keeper and Commiſſioners of the Great Seale under ſevere penalties to ſend forth Writs of Summons to Parliament, to them all, and in his default, enabled and enjoyned the Peeres of the Realme, or any twelve or more of them, to iſſue forth Writs of Summons to Parliament under the Great Seale of England, for the electing of Knights, Citizens and Burgeſſes: which Act will be meerly void and nugatory, if their Votes and Right of ſit in Parliament be denyed, or the Houſe of Peeres reduced to the Houſe of Commons, which this very Statute doth diſtinguiſh.

The Kings and Lords ſole right of Judicature in Parliament, without Commons cleerly evidenced.

The Lords Juriſdiction and undoubted Right to ſit and Vote in Parl • ament, being cleerly evicted, and und ••• ably manifeſted by the Premiſes; I ſhall next proceed to make good their Juriſdiction and lawfull Right of Judicature, (never queſtioned nor diſputed till of late) without the Commons concurrence. To avoid miſtakes, and clear all ſcruples, you muſt take notice, that there is a two-fold proceeding in Parliament, by way of Judicature and Cenſure. Firſt by Bill of Attainder; and therein the King, Lords and Commons muſt all concurre; becauſe ſuch Judgement is given extrajudicially, only by the Legiſlative power; wherein the Commons have of Right, a Vote and conſent, as well as the King and Lords; and in this courſe of proceedings, the King and Lords alone can doe nothing judicially without the Commons, no more then make an Act of Parliament without them: Of this kind • of Judgement and Attainder by Bill, wherein the King, Lords, and Commons joyntly concurre, there are ſundry preſidents, both in caſes, Treſpas, Felony, Treaſon, and the like, in our printed Statutes: 1 H. 4. c. 6. compared with 9 H. 4. Exilium Hugonis de Spencer. 15 E. 2. 1 E. 3. prologue and c. 2. 11 R. 2. c. 1, 2, 3. 5, 6, 7. 21 R. 2. c. 10, 11, 12. 9 H. 6. c. 3. 19 H. 6. c. 1. 3 • H. 6. c. 1. 25 H. 8. c. 12. 28 H. • . c. • 8. 33. H. • c. 21. 32 H. 8. c. 25. 2 and 3 E. • . c. 17, 18. 1 Mar. c. 1. 16. •• Eliz. c. 1. 3. 3 Jac. c. 2. to which the Attaindors of the Earl of Strafford by Bill, and Arch-biſhop of Canterbury this very Parliament may be added: Beſides other preſidents in the See Plac. Coronae in Parl. 33 E. 1. Rot. 17. 22 John de Segraves caſe, Plac. Corenae in Parl. 21 R. 2. n. 1. to 27 31 H. 6. n. 45. 64. 38 H 6. n. 9. to 26. Parliament Rolls, many of which are cited by Sir Edward Cooke, in his 3 Inſtitutes, c. 1. • . and M. S. John in his Argument as Law, concerning the Bill of Attainder of High Treaſon of Thomas Earl of Strafford; printed by Order of the Commons Houſe, Anno 1641. The like Preſidents are extant in the Statutes of Ireland 28 H. 8. c. 1. for the Attainder of the Earl of Kildare and others, 11 Eliz. c. 1. For the Attainder of Shan • 〈◊〉 , and others, • 3 Eliz. c. 6▪ and 7. For the Attainders of John 〈◊〉 -Gerald and others. An. 27 Eliz c. 1. For the attainder of James Euſtuce, and others. 28 Eliz. c. 8, 9. For the Attainders of the E. of Reſmond, John Brown, and others. 11 Jac. c. 4. For the Attainder of the Earl of Tyro •• and others.

Secondly, there is a formall Judgement given in Parliament in Cauſes, civill and criminall, upon Writs, Petitions • Indictments, informations, or Impeachments, and that either againſt or between Peers themſelves, or againſt or between Commons who are •• Peers, in both which the Lords have a proper Judiciary power without the Commons. That they have ſuch a legall and ſole Judicatory, in the caſe of Peers, is Cookes Inſtit. on Magna Charta. c. 14. 29. & 3 Inſtit. c. 1, 2. 1 H. 4. 1. Stamf. l. 3. c. 1. 10. E. 4. 6. Bro. Triall, 142. Treaſon, 33. 29. 13 H. 8. 11. acknowledged by all; who neither may nor ought by Law, to be cryed or judge for any Treaſon or criminall cauſe (unleſſe in caſes of10 E. 4. 6. Coronae, 34. Cooke, 2. Inſtit. p. 49. Triall. Bro. 142. Appeale at the ſuit of the ſubject) but only by the lawfull judgement of their Peers by the expreſſe proviſion ofCh. 14. 29. 20 H. 6. c. 9. 26 H. 8. c. 12. 1 El. c. 1. 5. 5 El. c. 11. and diverſe other Statutes: See Aſhes Tables. Co • onae. 84. Challenge, 65. and 8. Magna Charta with ſundry other Statutes, and by the very Common Law. This right of theirs, in caſe of Peers is cleerly evident by the Judgement given in againſt Earl Goodwin in a Parliament under K. Edward the Confeſſor, before the Conqueſt, An. 1052. recited at large in M. Seldens Titles of Honour, Part 2. c. 5. p. 634, 635. in the Tryall of Roger Earle of Hereford, in the 8. yeare of William the Conqueror, who was ſued and found guilty of Treaſon by his Peers. Cooke. 2. Inſtitut. p. 50. by the Judgement given in the Parliament of Northampton againſt Becket, Arch-biſhop of Canterbury, which you may read at large in Stephanides, & * M. Selden; by the anſwer of Will. du Breoſe to K. Johns Miniſters: Paratus ſum & ero Domino meo, & ſine obſedibus ſatisfacere, ſecundum Judicium Curiae ſuae & BARONƲM, Parium meorum. Which right of theirs is aſſerted by Sir E. Cook himſelf, and proved at large in his 2 Inſtitutes on Magna Charta. c. 14. 29. & in his 3 Inſtitutes, c. 2. where p. 31. he writes thus. A Peer of the Parl: being indicted of Treaſon or Felony, or of miſpriſion, and duly tranſmitted to the Lords, may be arraigned thereof in the upper Houſe of Parl. As FREQUENTLY IN PARL:† Titles of Honou • , Part 2. c. 5. p. 705. 706, 707. ROLLS IT DOTH APPEAR. As Rot. Parl. 21 R. 2 Plac. Cor. nu. 2 to 7. the Earl of Arundels caſe. Rot. Parl. 5 H. 4. nu. 11, 12. 13. H. 6. nu. 49. Earl of Dovers caſe. 28 H. 6. nu. 19. 50, 51, 52. Duke of Suffolks caſe. To which might be added, 7 R. 2. nu. 22, &c. The Biſhop of Norwich caſe, for delivering Gravelin to the Enemy. Placita Corona in Parl. 21 R. 2. num. 1 to 26. Rot. Parl. 50 E. 3. nu. 27. The Lord Latymers caſe. 2 H. 6. Rot. Parl. nu. 18. The Impeachments of the Commons this Parliament againſt the E. of Strafford, and Arch-biſhop of Canterbury who were proſecuted by the Commons, not tryed only by and before the Lords as their proper Judges and Peers. See 4 E. 3. nu. 14. 15 E. 3. nu. 6. 8. 44, 45. 51. 17 E. 3. nu. 22. 23 E. 3. nu. 7. to. 17.

The ſole queſtion men will be; Whether the Houſe of Peers have any lawfull power of Judicature, in, or • ver the cauſes and Perſons of the Commoners of England, in matter civill or criminall, ſo farre as to judge their Cauſes, or cenſure, fine, impriſon, or condemne their perſons in any caſe without the Commons? This the ignorant ſottiſh ſectaries, Levellers, ſeduced by their blinde guides, Lilburne and Overton peremptorily deny, without the leaſt ſhadow of truth or reaſon; the contrary whereof I ſhall infallibly make good to their perpetuall ſhame, and refutation.

Firſt our Hiſtories, Law-books and Records agree, that in ancient times, our Earls, who were called Comites, or Counts from the word County, had the chief Government and Rule of moſt of the Counties of this Realmne under the King, and that they, and the Barons were the proper Judges of the common peoples Cauſes in the Tournes, County-Courts, County Barons; even by vertue of their Dignities and Offices, as our Sheriffes have now; in which Courts they did inſtruct the people in the Lawes of the Land; and adminiſter Juſtice to them in all ordinary and criminall cauſes. For proof whereof you may peruſe at leaſure, M. Seldens Titles of Honour, Part 2. c. 5. Sect. 5. Sir. Edw. Cookes Inſtitutes on Magna Charta, c. 35. His 4. Inſtitutes, c. 53 Spelmanni Gloſſarium. Tit. Comites, M. Lamberts Archaion, Hornes Mirrour of Juſtices, c. 1. Sect. 2, 3. If then they were Judges of the Commons and People in the Country, by reaſon of their Honours & Dignities, even in ancienteſt times, in ordinary Cauſes; there was great right and reaſon too, they ſhould be ſo, their Judges alſo in all their extraordinary cauſes, as well criminall as civill.

Secondly, The Lords, Peers, and great Officers of State, in reſpect of their education, learning and experience in all proceedings of Juſtice and State affaires, are better able, and more fit to be Judges of Parl then ordinary Citizens and Burgeſſes for the moſt part (eſpecially if choſen out of the Cities and Burroughes themſelves for which they ſerve, as anciently they were, and ſtill ought to be by the Statutes of 1 H.† 7 R. 2. Parl. 2. n. 19, 20. 17 R. 2. n. 17. 5. c. 1. 32 H. 6. c. 15. and the very purport of the writs for their election at the very day: & de qualibet Civitare Com. predict. DVOS CIVES, & de quolibet Burg • , DVOS BVRGENSES, imports) who have better knowledge and skill in Marchandice, & their ſeverall Trades then in matters of Judicature, Law, or State. Therefore the Right of Judicature was thought meet, even by the Commons themſelves, to be lodged & veſted in the Houſe of Peeres, who are the 〈◊〉 and fitteſt of the two, rather then in the Commons Houſe, as I ſhall prove anon.

Thirdly, ſince the diviſion of the Houſes one from another (which is very ancient, and not certainly known, when firſt made) the Houſe of Peers hath been ever furniſhed with the ableſt Temporall and Spirituall perſons for their Aſſiſtants in judgment and advice, to wit, all the Judges See Modus tenendi Parliamentum, Vowell, Cowell, Crompton, Sir Thomas Smith, Coke, and others, 17 E. 3. n. 23. 21 E. 3. n. 7. 7. R. 2. n. 30, 31. 9 R. 2, n. 13. 2 R. 2. part. 2. n. 27. 31 H. 6. n. 26, 27, 28. 28 H. 6. n. 6. of the Realm, Barons of the Ex • hequer, of the Coyſe, the Kings learned Councell, the Maſters of the Chancery that are Courtiers or Lawyers, the Maſter of the Rolls, the Principall Secretaries of State, and other eminent perſons for parts and learning, and the Procuratores Cleri; all which are called by Writ to aſſiſt, and give their attendance in the upper Houſe of Parliament, where they have no voices, and are to give their counſel and advice only to the Lords when they require their aſſistance. For proof whereof you may conſult the Statutes of 31 H. 8. c. 10 Regiſter 261. Fitz. Nat: Bre: 229. a. b. M. Seldens Titles of Honor, p. 2. c. 5. Sir Edw. Cokes 4. Inſtit. p. 4, 5, 6, 44, 45, 46. and the Parl: Rolls and Authorities there cited by them, ſeconded by our preſent experience. Now the Houſe of Peers being thus aſſiſted with the advice of all the Iudges of England, the Kings learned Councell, and other ableſt to adviſe them in all Civill or Eccleſiaſticall matters: were and are in this regard thought fitteſt by our Anceſtors, and the Commons themſelves in Parl: 1 H. 4. n. 79 who have no ſuch aſſiſtants, to have the principall and ſole power of Judicature, in all or moſt civill or criminall cauſes between Commoner and Commoner, that proper for the Parliaments Iudicature by way of relief, redreſſe or cenſure.

Fourthly, there can be no judgement given in any of the Kings Courts,S • e The Preeholders Grand Inqueſt, p. 2 5. but when the King is perſonally or repreſentatively preſent, ſitting upon the Tribunall, and where the proceedings are CORAM REGE: But the King ſits perſonally and repreſentatively preſent in the Houſe of Peers, not in the Houſe of Cōmons, where nothing is ſaid to be done Coram Rege. And therefore in the end of moſt ancient Parl: Rolls, we find the Title, Placita Corona CORAM DOMINO REGE IN PARLIAMENTO SVO, &c. Therefore the Houſe of Peers only, not the Commons, are the true and proper judicatory; whence the King the ſupream Judge ſits uſually in Perſon.

Fiftly, there can be no legall triall or Judgement given in Parl: without examination of witneſſes upon oath, as in all other Courts of juſtice. But the Houſe of Peers alone have power to give, and examine witneſſes upon 7 R. 2. par. 2 • n. 16. Oath; and the whole Houſe of Commons no ſuch power, but to take Informations without Oath, which they nor their Committees cannot adminiſter, unleſſe by Order and Commiſſion from the Lords: Therefore the power of judicature in Parl is inherent only in the Houſe of Poers, and not in the Commons Houſe.

Sixtly, it is a rule both of Law and common Juſtice, Littleton, ſect. 212. Coke, ibid. 4 E. 3, 7. 2 H. 6. 10. 14 H. 4. 8. 2 R. 2. 29. 5 H. 7. 8. Bur. Challeng. 23, 42, 71 that no man be an informer, proſecutor, and judge too of the perſons proſecuted, and informed againſt, it being againſt all grounds of juſtice. But the Cōmons in all ancient, and in this preſent Parl: have been informers and proſecutors (in nature of a Cokes 4. Inſtit. p. 24. Grand Inqueſt▪ to which ſome compare them) ſummoned from all parts of the Kingdom to preſent publick grievances and Delinquents to the King and Peers for their redreſſe) witneſs their many impeachments, accuſations and complaints ſent up and proſecuted by them in 50 E. 3. n. 5. to 37. 21 R. 2. n. 14, 15, 16. 28 H. 6. n. 14, to 52 31 H. 6. n. 45, 64. 38 H. 6. n. 38. former parl: & this to the Lords not only againſt Peers, but Commoners, of which there are hundreds of preſidents this very Parl: Therefore the Houſe of Lords hath the proper right of judicatory veſted in them, not the Commons; who are rather informers, proſecutors and Grand-Jury men, to inform and impeach, then Judges to hear, cenſure, or determine.

Seventhly, thoſe who are proper Judges in any Court of juſtice, whiles the cauſe is judging ſit in their 25 E. 3. c. 2. 20 R 2. c. 3. 6 R. 2. c. 5. 14 H. 6. c. 3. • R. 2. c. 3. 2 R. 2. c. 10. Robes, covered on the bench; not ſtand bare at the bar; ſwear & examine the witneſſes in the cauſe, not produce them or manage the evidence, & when the cauſe is fully heard, argue and debate the buſineſſe between themſelves and give the definitive ſentence. But in caſes that are to be tried & judged in Parl: the Lords only ſit covered and in their Robes upon the Bench, but the Comons ſtand bare at the Bar: the Lords only ſwear and examine the witneſſes and judge of their teſtimony: the Commons only Coke 4. Inſtit. p. 24. produce the witneſſes, or preſſe and manage the evidence; and when the buſineſſe is fully heard, the Lords only debate the buſineſſe among themſelves and give the finall Sentence and Judgment without the Cōmons; and that both in caſes of Comoners and Peers. Therefore the Lords, or houſe of Peers, are ſole Judges in Parl: not the Cōmons.

And that they are and alwaies have been ſo de facto (unleſſe by way of Bil of Attainder or in ſuch extraordinary caſes when their concurrence hath been deſired) I ſhall prove by moſt clear and infallible evidence. To pretermit theMr. Seldens Titles of Honor, part. 7. c. 5, p. 632, 633, 705, 706. judgment of the Earls & Barons in Parl: in the caſe of Earl Goodwin for the murther of Alfred in K. Edw. Conf. reign before the Conquest, and the judgment of the Barons the Lords in Parl: againſt Tho: Becket Arch-b. of Can. in K. Hen. 2. raign, cited by M. Selden, of which you may chuſe the ſame, with the punctuall authority of Andr. Horne in his Mirror of Justices, c. 1. § 2. forecited.

Firſt, in Pleas of the Crown, and other Common Pleas plainly •• able in Parl: as well between Cōmoners as Peers; the Pleas have been exhibited, heard, and judgement given upon them by the King and Lords joyntly, or the King alone, by which the Lords aſſent, or by the Lords themſelves, without the Cōmons; as is evident by the Parli: Rolls and Pleas in Parl: in K. Ed. 1. 2. 3. 4. Ric. 2. Hen. 4. 5. 6. where there are hundreds of inſtances to confirm it: ſome of them printed in Sir Edw. Cokes, 3 Inſtit: c. 1, 2. and M. St Johns Argument in Law upon the Bill of Attainder againſt the Earl of Strafford.

Secondly, in all18 E. 1. rot. Parl. t. 4 E. 3. n. 13. 21 E. 3. n. 65. 28 E. 3. n. 11, 12. 50 E. 3. n. 48. 1 R. 2. n. 28, 29, 104. 2 R. 2. n. 36, 37, 31, 32, 33. Parl. 2. n. 21, to 27. 3 R. 2. n. 19, 20, 21. 7 R. 2. Parl. 2. n. 23, 24. 8 R. 2. n. 14, 15. 13 R. 2. n. 15, 16. 15 R. 2. 22, 23. 17 R. 2. n. 13, 14, 15, 19. 18 R. 2. n. 11, 10 16. 21 R. 2. n. 25, 55, to 66. 1 H. 4. n. 91. 2 H. 4 n. 47, 48. 5 H. 4. n. 40. 6 H. 4. n. 31, 61, 62. 3 H. 5. n. 19. 10 H. 6. n. 51. Writs of Error brought in Parl: by Peers or Cōmoners to reverſe any erroneous judgements touching their reall or perſonall Eſtates, lives, or attainders, The KING & LORDS ONLY ARE JUDGES, and the proceedings upon ſuch Writs, are ONLY BEFORE THE LORDS IN THE UPPER House, ſecundum Legem & co • ſuetudinem Parliamenti. So Sr Ed. Coke in direct terms, in his 4. Inſtit. p. 21, 22, 23. where he produceth divers preſidents of ſuch writs of Error out of the Parl: Rolls, and preſent experience manifeſts as much in all the the writs of Error brought this Parl: adjudged and determined by the King and Lords alone, without the privity of interpoſition of the Cōmons. A truth ſo clear that Lilburne himſelf in his Argument againſt the Lords Juriſidiction confeſſeth it, and the Parl: Rolls quoted in the Margine, with ſundry others reſolve paſt all diſpute. If then the Lords be the ſole Judges in all writs of Error concerning the goods, estates, free-holds, inheritances, lives, and attainders of the Commoners of England, notwithſtanding the ſtatute of Magna Charta, c. 29. No Free-man ſhall be taken, or impriſoned, or diſſeiſed of his Free-holder Liberties, of Free-cuſtomes, nor outlawed, nor exiled, neither will we paſſe upon him, nor condemn him, but by THE LAWFUL IUDGMENT OF HIS PEERS, &c. (the grand and principall objection againſt their Iudicature) then by the ſelf-ſame reaſon they are and may lawfully proceed againſt them in all other civill or criminall cauſes, (eſpecially breaches of ther own priviledges of which themſelves are the ſole and only Iudges, the caſes of Lilburne and Overton) properly triable in Parliament.

Thirdly, in all Petitions and complaints againſt Cōmoners for redreſſe of grievances, the King and Lords are the ſole and proper Tuns and Judges, not the Cōmoners, as appears by all the Parl: Rolls in former times; wherein we find in the beginning of every Parl: ſome Aſſiſtants of the Lords houſe appointed by them to be receivers of the Petitions of England, Ireland, Wales & Scotland; others appointed receivers of the Petitions of Gaſcoyne, & other parts beyond the Seas, and the Iſles of Jerſy and Gernſey, &c. And ſome Lords appointed tryers of thoſe Petitions, who had power given them to call the Ld Chancellor, Treaſurer, Steward, Chamberlain, the Judges, Kings Serjeants and others to their aſſiſtance; preſcribing alſo by what day the Petitions ſhould all be exhibited, and the place where they ſhould be examined. All particular perſons uſually preſenting all their grievances and petitions immediately to the King & Lords (without any addreſſe to the Cōmons by Petitions, as now of late) there being no Petitions of record in the Parl: Rolls addreſſed immediately and originally to the Commons, that I can find. And towards the end of the Parl: Rolls, there is this Title uſually. The Petitions of the Cōmoners (containing all Petitions of the Cōmons houſe for redreſſe of publick or particular injuries and grievances) preſented to the King in the Lords houſe, and anſwered by the King alone, with the conſent of the Prelats Counts & Barons: with which anſwers the Commons reſted ſatisfied, whether granted or denied, as ofttimes they were. Of wch you may read ſomthing in Sr E. Cokes 4. Inſtit. p. 16. & more in the Records themſelves.

Fourthly, in all criminal cauſes in Parl: by way of accuſation, impeachment or indictment, the King & Lords were the proper Judges; as is evident by Placita Coronae coram Domino Rege in Parliamente ſue, at the end of each Parliam: Roll; wherein the King and Lords, or only the King and Lords alone generally gave Iudgement of impriſonment, fine, baniſhment and death it ſelf, even againſt Cōmoners themſelves without the Commons; the thing now principally controverted and denied: for proof whereof I ſhall cite ſome few punctuall preſidents and records, in ſtead of many which might be inſiſted on.

In the famous Parl: held at ClaredonMat. Paris p. 6 97. M. Seldens Titles of Honor, part. 2. c 5 p. 703. 705 under K. Hen. 2. 〈◊〉 . D. 1164. there was a recognition made of all the ancient Cuſtoms of the Realm, which all the Prelats, Abbots, Earls, Barons and Nobles ſwore firmly to obſerve to the King and his Succeſſors, whereof this was one, That the Arch-b. Biſhops, and other Clergy men who held of the King in Capite by Barony; Sicut caeteri Barones debent intereſſe JVDCIIS CVRIAE REGIS CVM BARONIBVS,Petrus Bleſ • ſis, De Inſtit. Epiſcopi, Bibl: Patrum; tom. 12. par. 2. p. 447 quouſque perveniatur AD DIMINVTIONEM MEMBRORVM, VEL AD MORTEM: which proves the power and right of Iudicature even in thoſe times and long before, to be ſetled in the Barons as well in Parliament, as in the Sheriffs Tourne, and that in caſe of Commoners as Peers.

In the Parliament of 4. E. 3. num. 1. 2. 3. 4. 5. Roger Mortimer, Earle of March, a Peer, Sir Simon Bereford, Knight, of Councell and aſſiſtant to the ſaid Earle John Mautravers Boſe de Bayous, and Iohn Deverall, for being guilty of the death of Edward Earle of Kent, Thomas Gournay, VVilliam of Ocle, for murthering King Edward the ſecond, after his depoſition, were attainted and condemned of High treaſon, and ſome of them then in cu •• odie accordingly executed by Iudgement of the Lords and Peeres alone; who AS JUDGES OF THE LAW by the Kings conſent gave judgement of death againſt them; as the Parliament Rolls more largely relate.

It is true indeed, that after theſe Judgements given the LORDS the ſame Parliament, num. 6. entred this Proteſtation; See Cooke, 2. Inſtit. p. 50. That alboit the Lords, and Peers of the Realme, AS JUDGES OF THE PARLIAMENT, in the preſence of the King had taken upon them to give Judgement of ſuch who were NO PEERS OF THE REALM, that he eafter NO PEERS ſhould be compelled to give Judgement ON ANY OTHERS WHO WERE NOT THEIR PEERS, according to the Law.

From this Proteſtation of the Lord (which Lilburne principally inſiſts on) hee andCooke, 2. Inſtit. p. 50. ſome others conolude; that the Peers in Parliament have no right at all to impriſon, fine, judge, or paſſe ſentence of death againſt any Commoner for any offence, no, not for breach of their own Priviledges) but only the Commons.

To which objection I anſwer; Firſt, that this is no Act of Parliament, as Sir Edwards Cooke miſtakes, but a bare Proteſtation of the Lords, without Kings or Common • aſſent and that neither the Houſe of Commons nor the Commoners then attainted of Treaſon and judged to death by the Lords, ever demurred or excepted againſt their Juriſdiction, as Lilburne and Overton doe, but acknowledged and ſubmitted to it. Secondly, That in this very Proteſtation the Lords profeſſe and juſtifie their right of BEING JVDGES in Parliament without admitting or acknowledging any joynt or ſole right of Judicature with them in Parliament in the Commons. Thirdly, That this Proteſtation was meerly voluntary, not in derogation, but preſervation of their own Honour and Peerage, and the Parliaments too; and the ſubſtance of it no more, then this; That the Lords in Parliament ſhould not bee conſtrained againſt their wills by the Kings command, and in his preſence, to give judgement of death in ordinary caſes of treaſon or Felony in the high Court of Parliament, againſt ſuch who were no Peers, who in ſuch caſe • Magn. Ch. c. 29. 25. E. 3. c. 2. 4. 28. E. 3. c. 3. 37. E. 3. c. 8. 42. E. 3. c. 3. Cooke 2. Inſtit. p. 50, 51. by the Law might, and ought to be tried in the Kings Courts at VVeſtminſter, or before the Iuſtices of Oyer and Terminer by a Iury of their equalls; but onely in ſuch caſes which could not well be tried elſe-where, and were proper for their Judgement in Parliament, This is the whole ſumme and ſence of their proteſtation. To argue therefore from hence, That they cannot paſſe ſentence, or judgement againſt any Commoners in any caſe proper for their Judicature in Parliament, becauſe they proteſted only againſt being COMPELLED to g • ve Judgement againſt ſuch as were no Peers, in caſes triable elſe-where, and not proper for their tribunall (as the Objectors hence conclude) is quite to miſtake their meaning, and to ſpeak rather non-ſence, then reaſon or Law. Fourthly, This Proteſtation was made only againſt the Lords giving ſentence in Felony and Treaſon, and that in the Kings own preſence in Parliament (who uſually pronounced the Judgement himſelf, with the Lords aſſent and did not charge the Lords to pronounce it, as here hee did) not againſt ſentencing, fining and impriſoning any Commoner for rayling and Lybelling againſt their Perſons. Juriſdiction, and proceedings; refuſing to anſwer, and contemning their Authority to their faces at the Barre; and appealing from their Judicature in caſe of breach of Priviledge of which themſelves alone and no others are or can be Judges; the caſe of Lilburne and Overton; whoſe commitments are warranted by hundreds of Preſidents, in this and former Parliaments. Therefore for them to apply this Proteſtation to their caſes with which it hath no Analogy, is a manifeſtation of their injudiciouſneſſe and folly rather then a juſtification of their Libellous Invectives againſt the Lords injuſtice. Laſtly, this Proteſtation did not forecloſe the Lords in this or future Parliaments to give Judgement againſt Commoners in other caſes of Felony and Treaſon, even without the Commons: To prove this by ſome inſtances.

In the Parliament of 1. H. 4. Placita Coronae, num. 11. to 17. Iohn Hall being in cuſtody of the Marſhall of England, and brought by him before the Lords in Parliament and there charged by him, by VValter Cl • pton, Lord chiefe Juſtice, by the Kings command, with having a hand in the murther of the Duke of Gloceſter who was ſmothered to death with a featherbed at Calayes by King Richard the ſeconds command, the whole relation whereof he confeſſed at large, and put in writing before James Billing ford, Clerk of the Crown, which was read before the Lords, upon reading whereof, the King and ALL THE TEMPORALL LORDS IN PARLIAM • NT reſolved that the ſaid Iohn Hall by his own confeſſion deſerved to have as hard a death as they could adjudge him to, becauſe the Duke of Gloceſter was ſo high a Perſon, and thereupon TOVTE LES SEIGNEIURS TEMPORELZ per aſſent du ROY ADJVGGER • N • all the temporall Lords by aſſent of the King AJVDGED that the ſaid Joh. Hall ſhould be drawn from Tower hill unto the Gallows at Tiburn, & there kenelled; & his bowels laid before him; and after he ſhould be hanged, beheaded, and quartered, and his head ſent to Calayes where the murther was committed, and his quarters ſent to other places where the King ſhould pleaſe; and thereupon command was given to the Marſhall of England to make execution accordingly; and it was ſo done the ſame day.

Lo here the Lords in Parliament g • ve judgement againſt a Commoner in caſe of a murther done at Calayes, (and ſo not triable at the Kings Bench, but in Parliament) and paſſe a judgement of High treaſon on him, for murthering of a great Peere only.

And which is moſt remarkable, all the Commons In this very Parliaments of 1 H. 4. nu. 70. Nov 3. made their Protestation, and further remonſtrated to the King,Nota. Com: LES JVGGEMENTS DV PARLEMENT APEIRTEIGNENT SOVLEMENT AV ROY ET AS SEIGNEIVRS, ET NIENT AS COMMVNES: how the judgement of the Parl. appertained ONLY TO THE KING and TO THE LORDS, and NOT VNTO THE COMMONS; except in caſe it ſhould pleaſe the King OF HIS SPECIALL GRACE to ſhew unto them the ſaid JVDGEMENTS: purcaſe de eux, que null record ſoit fait in Parlement, encoutreles ditz Communes quill ſoit ou ſerront parties aſcunes juggements donez ouadoues en Apres in Parlement. Whereunto it was anſwered by the Archbiſh. of Canterbury by the Kings command, how the ſaid Commoners are petitioners, and demanders, and that THE KING & THE LORDS de tont temps ont eves et aueront DE DROIT LES JVGGEMENT EN PARLEMENT, en manere come me me les communes ount monſtres. HAVE ALVVAYES HAD AND SHALL HAVE OF RIGHT THE JVDGEMENTS IN PARLIAMENT, in manner as the Commons themſelves have declared, except in making Statutes or in making Grants and Subſidies, or ſuch things for the common profit of the Realm, wherein the King will have eſpecially their advice, and aſſent; and that this order of proceeding ſhall be held and kept IN ALL TIMES TO COME.

By which record in Parliament it is apparent, by the Houſe of Commons own confeſſion, Firſt that the Judgements in Parliament even in caſes of Commoners appertain ONLY TO THE KING and LORDS, in the affirmative. Secondly, that they appertain NOT TO THE COMMONS in the negative. Thirdly that the King and LORDS HAVE ALWAYES HAD and ENJOYED THE RIGHT of Judgements in Parliament. Fourthly, that they ſhould alwayes hold and enjoy this Right, IN ALL TIMES TO COME. Fifthly that the Commons ſpeciall adviſe and aſſent was and is required by the King in Parliament, only in making of Statutes, Grants and Subſidies, and ſuch like things for the common profit of the Realm.

So full and punctuall a Parliamentary deciſion of the preſent controverſie, as is uncapable of any anſwer or evaſion.

In the Parliament Roll of 17.See Cook 3. Inſtit. c. 2. p. 22. R. 2. num. 20. 21. John Duke of Gayen and of Lancaster, Steward of England, and Thomas Duke of Gloceſter, Conſtable of England, the Kings Uncles, complained to the King, that Thomas Talbot Knight, (a Commoner and no Peere) with other his adherents, conſpired the death of the ſaid Duke in divers parts of Cheſhire, as the ſame was confeſſed and well known, and prayed that the Parliament might judge of the faul • , (to wit, whether it were treaſon according to the clauſe of the Statute of 25, E. 3. c. 2. It is accorded that if any other caſe ſuppoſed Treaſon which is not above ſpecified, doth happen before any Juſtices, the Juſtices ſhall tarry without any going to judgement of the Treaſon till the cauſe be ſhewed and declared before the King and His Parliament, whether it ought to be judged Treaſon or Felony) whereupon the KING and THE LORDS IN THE PARLIAMEN • (without the Commons though in caſe of a Commoner) ADJVDGED THE SAME FACT TO BE OPEN and HIGH TREASON; and thereupon they award two writs, the one to the Sheriffes of Darby, to take the body of the ſaid Sir Thomas, retornable in the Kings Bench, in the moneth of Eaſter then next following; and open Proclamation was made in Weſtminster Hall, upon the Sheriffes return, and the next coming in of the ſaid Sir Thomas that the ſame Thomas SHOVLD BE CONVICTED OF TREASON, and incurre the loſſe and pain of the ſame; and that all ſuch as ſhould receive him after the ſame Proclamation, ſhould incurre the ſame loſſe and paine. Sir3. Inſtit. p. 22. Edward Cooke; relating this Judgement, addes his own opinion at the end: That this judgement wanting the aſſent of the Commons was no Declaration, (of Treaſon, within the Act of 25. E. • . becauſe it was not by the King and his Parliament according to this Act, but by the King and Lords ONLY.

But the record of Parliament, and the Judges and Commons then admitted it to be good; and proceſſe iſſued out, and judgement was given accordingly: the parties concerned taking no ſuch exceptions to it.See 21. R. 2. n. 15. 16. So that this Record is a pregnant evidence. That the King and Lords are the ſole Judges in Parliament, in the caſe of Commoners, even in declaring and judging, what is or what is not treaſon, within the Statute of 25. E. 3. becauſe the Commons are no Iudges in Parliament, and ſo cannot Iudge or declare (unles in a legiſlative way by Act of Parliament) what is Treaſon or Pelony, but the King and Lords alone.

To put this out of queſtion, I ſhall cite one notable record more to this purpoſe. (a) Cooke. 3. Inſtit. p. 22. &c. 1. p. 10. In the Parliament of 5. H. 4. 11. 12. on the 8. of February the Earle of Northumberland came before the King Lords and Commons in Parliament, and by his Petition to the King acknowledged that he had done againſt his Lawes and alegiance, and eſpecially for gather of power and giving of Liveries, for which he put himſelfe upon the Kings grace and prayed pardon; the rather, for that upon the Kings Letters, he yielded himſelfe, and came to the King at Yorke; whereas he might have kept himſelfe away. Which Petition by the Kings command was delivered to the Juſtices to be examined, and to have their counſell and advice therein: Whereupon the LORDS made a Proteſtation que le Juggement appertient aeux tout ſoulement THAT THE JUDGEMENT APPERTAINED ONLY TO THEM. And after the ſaid Petition being read and conſidered before the King and the ſaid Lords as Peers of Parliament, a queux tells • uggementz apperteignent DE DROIT. TO WHOM SUCH JUDGEMENT APPERTAINED OF RIGHT, having had by the Kings command, competent deliberation thereupon: and having alſo heard and conſidered as well the Statute made in the 25. yeare of King Edward the Kings Grand-father that now is, concerning the Declaration of treaſon, as the Statutes of Liveries made in this Kings raigne, ADJUDGED, that that which was done by the ſaid Earle contained within his Petition, was neither Treaſon, nor Felony, but Treſpas; for which the ſaid Earle ought to make fine and ranſome at the will of the King. Whereupon the ſaid Earle moſt humbly thanked our Lord the King, and the ſayd Lords his Peers of Parliament FOR THEIR RIGHTFULL JUDGEMENT, and the Commoners for their good affectious and diligence uſed and ſhewen in this behalfe; And the ſaid Earle further prayed the King, that in aſſurance of theſe matters, to remove all jealouſies and evill ſuſpitions, that he might be ſworn a new in the preſence of the King, the Lords and Commons in Parliament; and the ſaid Earle tooke an Oath upon the Croſier of the Archbiſhop of Canterbury, to be a faithfull and loyall lige to our Lord the King, the Prince his ſonne, and to the heires of his body inheritable to the Crown according to the Lawes of England: Whereupon the King out of his grace pardoned him his fine and rauſome for the treſpas aforeſaid. After which num. 17. the Lords ſpirituall and temporall, humbly thanked the King ſitting in his royall Throne in the white Chamber, for his grace and pardon to the ſaid Earle of his fine and ranſome: and likewiſe the Commons thanked THE LORDS SPIRITUALL and TEMPORALL FOR THE GOOD and JUST JUDGEMENT THEY HAD GIVEN AS PEERS OF PARLIAMENT TO THE SAID EARLE.

From this memorable record I ſhall obſerve, Firſt that though this Declaration of this Earles caſe was made by his Petition in the preſence of the King, Lords and Commons in Parliament according to the Statnte of 25. E. 3. yet the Lords only by Proteſtation in preſence of the King and Commons, claimed to be THE SOLE JUDGES OF IT as Peers of Parliament, and belonging to them OF RIGHT. S • condly, That this claime of theirs in this caſe was acknowledged and ſubmitted to both by the King and Commons: and thereupon the Lords only, after ſerious conſideration of the caſe and Statutes, whereon it depended gave the definitive ſentence and judgement in this caſe, that it was neither Treaſon nor Felony, but Treſpas only &c. Thirdly, That the Earle thanked the King, only for his grace, the Lords FOR THEIR JUST JUDGEMENT and the Commons only for their good hearts and diligence, having no ſhare in the judgement though given by the Lords both in the Kings and their preſence; and that the Commons themſelves returned ſpeciall thanks to the Lords ſpirituall and temporall on Parliament for their good and juſt judgement. Fourthly, That this judgement of the Lords only, was finall and concluſive, both to the King and Commons, who aquieſced in it.

All that can be objected to evade this Preſident,Object. is that this Judgement was given in caſe of a Peer, wherein the Lords only are the Judges, by Magna Charta, c. 29. but not of a Commoner, which is the queſtion.

I anſwer,Anſw. that though this judgement of theirs was in caſe only of an Earle, who was a Peer, & triable See Cooke 2. Inſlit on Ma • na Charta, c. 29. only by his Peers, yet the King & Lords in this Parliament, the very ſame day gave Judgement of High Treaſon againſt Henry and Thomw Peircy (one of them no Peer) and OTHERS who were in their companie (who were but Commoners and no Peers) for levying warre againſt the King, and that without the Commons, as is evident by the Parliament Roll of 5. H. 4. nu. 15. Et anxy meſme le vendreay AIVGGES PAR LE ROY ET SEIGNEIURS EN PARLEMENT, que levier de guerre fait per les ditz Mounſieur Henry, & Mounſieur Thomas▪ furont tenuz pur treaſon: & ceo ſi bien de eux meſmes come DE AUTERS qui fueront en lour compaigne, au temps de dit lever; which quite takes off this Objection.Se • Mr. Prynnes Doome of Cowardice and Treacherie. p. 2. 3. 4. 5. &c. where theſe records are cited at large verbatim.

To put all out of queſtion, I ſhall inſtance in ſome few ancient prefidents more, which are full and punctuall.

In the Parliament of 1. R. 2. num. 38. 39. 40. The Commons prayed, that all thoſe Captaines who had rendred or loſt Caſtles or Townes through default might be put to anſwer it in this Parliament, and ſeverely puniſhed according to their deſerts BY AWARD (or Judgement) OF THE LORDS and BARONS, to eſchew the evill examples they had given to other Governours of Townes and Caſtles. Whereupon Sir Alexander de Buxton, Conſtable of the Tower, was commanded to bring BEFORE THE LORDS IN PARLIAMENT, William de Weſton, and Lord of Gomynes, (both of them Commoners) on Friday the 27. of November, to anſwer ſuch Articles as ſhould be ſurmiſed againſt them on the Kings behalfe. Being brought BEFORE THE LORDS in full Parliament, they were ſeverally articled againſt, at the command of THE LORDS, by Sir Richard le Scrop, Knight, Steward of the Kings Houſe, and their ſeverall Articles, and anſwers to them in writing, being read before THE LORDS; Which done, the Conſtable was commanded to bring them againe before THE LORDS on Saturday next enſuing, being the 20. of November; on which day, it was ſhewed unto them ſeverally by the ſaid Steward, by THE LORDS COMMAND, That THE LORDS OF THE PARLIAMENT (whoſe names are particularly mentioned in the Roll) had met together, and conſidered of their reſpective anſwers, and that IT SEEMED TO THE LORDS AFORESAID, that the ſaid William had delivered up the Caſtle of Outherwycke to the Kings enemies without any dureſſe▪ or want of victuals, contrary to his alleagiance, and undertaking ſafely to keep it; and therefore THE LORDS ABOVE NAMED SITTING IN FUL PARLIAMENT ADJVDGE you TO DEATH, & THAT you SHAL BE DRAWN and HANGED. But becauſe our Lord the King is not informed of the manner of the Judgement the ex • cution of it ſhall be reſpited till the King be thereof in • ormed.

A • ter which Judgeme • t given it was ſhewed to the ſaid John Lord of Gomynes by the 〈◊〉 Steward how the ſaid LORDS had aſſembled and conſidered of his anſwer: and THAT ••••• EEMED TO THE LORD ſitting in full Parliament, that without dureſſe or default of victualls or other neceſſaries for the defence of the Town or Caſtle of Arde, and without the Kings command, hee had evilly delivered and • urrendred them to the Kings Enemies by his own default againſt all apparance of right or reaſon, againſt his undertaking ſafely to keep the ſame. Wherefore THE LORDS aforeſaid here in full Parliament ADJUDE YOU TO DEATH. And becauſe you are a Gentleman and a Baronet, and have ſerved the Kings Grandfather in his Warrs, and are no Leige • man of our Lord the King▪ you ſhall be beheaded without having OTHER JUDGEMENT. And becauſe that our Lord the King is not yet informed of the manner of this Judgement, the execution thereof ſhall be put in reſpite, untill our Lord the King be informed thereof.

Loe here two expreſſe Judgements given in Parliament by the Lords alone, without King or Commons, in caſe of Treaſon, even againſt Commoners themſelves. And an expreſſe acknowledgement of the Commons of the Lords right to award Judgement in theſe caſes, without the King or them; then which a fuller and clearer proofe cannot be deſired.

In the ſelf-ſame Parliament, 1. R. • . num. 41 42, 43. Dame Alice Piers was brought before THE LORDS, and charged by Sir Richard le Scrope, with ſundry miſdemeanors which ſhe denied; hereupon divers Witneſſes were examined againſt her: Whereupon JVDGEMENT WAS GIVEN BY THE LORDS AGAINST HER, that ſhe ſhould be baniſhed, and forfeit all her lands, goods, and tenements whatſoevèr. To this Judgement, neither King nor Commons were parties, but the Lords only.

To theſe I might adde the caſes of See the doom of 〈◊〉 and treachery. 〈◊〉 14 15. where the record is tranſcribed. Sir William de Eleuham, Sir Thomas Trivet, Sir Henry de Ferriers, and Sir William Farnden, Knights; and Robert Fitz Ralph, Eſquire; Rot. Parl. 7. R. 2. num. 24. ſentenced and condemned by judgement of the Lords in Parliament, pronounced by the Chancellour, for ſelling the Caſtle of Burbugh, with the armes and amm • nition in it, to the Kings enemies without the Kings licenſe. 21. R. 2. Parl. Rot. Plac. Coronae num. 27. where Sir Robert Pleaſington is adjudged a Traytor after his death, by the King, by • SSENT OF THE LORDS, and num. 15. 16. Sir Thomas Mortimers caſe, num. 17. Sir John Cobhams caſe, 31. H. 6. n. 45. 64. 65. • . 3. n. 16. to • 8. and num. 28. Henry Bonoits caſe, condemned in like manner of treaſon by the Lords, with hundreds of Preſidents more.

I ſhall only cite three more at large which are punctuall.

In the Parliament of 8. R. 2. n. 12. Walter Sybell of London was arreſted and brought into the Parliament before the Lords, at the ſuit of Robert de Veer Earl of Oxford, for ſlandering him to the Duke of Lancaſter, and other Nobles, for maintenance: Walter denied not but that he ſaid that certain there named, recovered againſt him the ſaid Walter, and that by maintenance of the ſaid Earl as he thought. The Earl there preſent proteſted himſelf to be innocent, and put himſelf upon the triall. Walter thereupon was committed to Priſon by the Lords, and the next day he ſubmitted himſelf, and deſired the Lords to be a mean for him, ſaying, he could not accuſe him: whereupon THE LORDS CONVICTED and FINED HIM FIVE HVNDRED MARKS TO THE SAID EARL; for the which, and for his fine and ranſome, he was committed to priſon BY THE LORDS. A direct caſe in point.

In the ſecond Parliament in 7. R. 2. num. 13. to 19. Iohn Cavendiſh a Fiſhmonger of London accuſed Michael de la Pool Knight, Lord Cha • cellour of England, firſt before the Commons, and afterward before the Lords, for bribery and injuſtice; and that he entere •• • nto a Bond of x. l. to Iohn Ottard, a Clerk to the ſaid Chancellour, which he was to give for his good ſucceſſe in the buſineſſe, in part of payment w ••• eof, he br • ught Herring and Sturgeon to Ottard and ye was delayed a • d could have no juſtice at the Chancellours h • nds, and upon hearing he cauſe and examining wi •• o • fes upon Oath before THE LORDS, the Chancellour was cleared; The Chancellour thereupon required reparation for ſo great a ſlander: the Lords being then troubled with other weighty matters, let the Fiſh-monger to Bail, and referred the matter to be ordered by the Judges; who upon hearing the whole matter, condemned Cavendiſh in three thouſand marks for his ſlanderous complaint againſt the ſaid Chancellour, and adjudged him to priſon till he had paid the ſame to the Chancellour, and made fine and ranſome to the King alſo: which the Lords confirmed.

In the Parliament of 15. R. 2. nu. 21. Iohn Stradwell of Begſteed in the County of Suſſex, was committed to the fleet by JVDGEMENT OF THE LORDS, there to remain during the Kings pleaſure, for that he informed the Parliament, that the Archbiſhop of Canterbury had excommunicated him and his neighbours wrongfully for a temporall cauſe appertaining to the Crown and Common Law, wh • ch was ADIVDGED BY THE LORDS upon examination and hearing to BE VNTRVE.

Theſe three eminent Preſidents (to which many more might be added) of the Lords fining and impriſoning meere Commons, only for ſlandering Peeres of Parliament, even by falſe accuſations againſt them in Parliament by way of complaint, will •• ſtify the Lords proceedings againſt Lilburn and Ov • rton for their profeſſed Libells both againſt their Perſons and Juriſdictions too.

To proceed to latter times in Parliaments of 18. and 21. Jacobi, and 3. Car. not only the LordCook 4. Inſtit. p. 23. Chancellour Bacon, and the Earl of Middleſex, Lord Treaſurer▪ upon complaint of the Commons, were cenſured and judged by the Lords alone, but likewiſe Sir Giles Mompeſſon, Sir Iohn Michell, and Dr Manwering, (all Commoners) JUDICIALLY SENTENCED & Doctor Pocklinton, and Doctor Bray, even for erroneous Books and Sermons, were ſentenced this Parliament by the Lords alone; ſince theſe Maſter Clement Walker Eſquire was impriſoned in the Tower, and fined by the Lords, for ſome words pretended to be ſpoken againſt the Lord Say; and within theſe few moneths on • Morrice, and foure or five more of his confederates, were cenſured, fined and impr • ſoned, by the Lords alone, for forging an Act of Parliament upon Sir Adam Littletons complaint, with all the Commons privity or conſents; and above one hundred Commoner: more have been impriſoned by them or fined this very Seſſion of Parliament for breach of Priviledge, contempts or miſdemeanours, by the Lords alone, without the Commons; yet no demurrer nor exceptions were taken by them or the Commons to their Iuriſdiction, who applauded this their Juſtice in ſome of theſe caſes.

From all theſe cleare confeſſions of the Commons themſelves in Parliament, and punctuall preſidents in print in former, late Parliaments, and in this now ſitting, it is undeniable, That the King and Lords joyntly, and the Lords ſeverally without the King, have an indubitable right of Judicature, without the Common • , veſted in them, not only of Peers themſelves, but likewiſe of C • mmoners, in all extraordinary caſes of Treaſon, Felony, Treſpaſſe, and other Miſdemeanors▪ triable only in Parliament, which hath been conſtantly acknowledged, practiſed, and ſubmitted to, without diſpute: much more then have they ſuch a juſt and rightfull power, in caſe of breach of their owne priviledges, of Cooke, 4 Inſtit. p. 15. which none are, or can be Judges but themſelves alone. And to deny them ſuch a power, is to make the Higheſt Court of Iudicature in the Realme inferiour to the Kings Bench, and all other Courts of Juſtice▪ who have power to judge and try the perſons and cauſes of Commoners, and to commit and fine them for contempts and breaches of Priviledges as our See Brooke and Aſhes Tables, Tit. Contempts; Fines pur Contempt & Impriſonment. Law bookes reſolve, and every mans experience can teſtifie.

The Lords right of Judicature being thus fully evicted againſt the falſe and ignorant pretences of illiterate Sectaries, altogether unacquainted with our Hiſtories and Records of Parliament, which they never yet read nor underſtood, there remaines nothing but to anſwer ſome Preſidents and Objections.

The Principall preſident inſiſted on by Lilburne, Object. 1. is the Proteſtation of the Lords, in the caſe ofCooke, 2. Inſtit. p. 50. Sir Simon Beresford, 4. E. 3. nu. 6. which I have already fully anſwered, retorted, and ſhall therefore here pretermit.

The ſecond is Sir Edward Cookes Authority,Object. 2. and the preſidents cited by him, in his 4. Inſtitutes, p. 23. 24. of Judicature in Parliament, where thus he writes; It is to be knowne, THAT THE LORDS IN THEIR HOUSE HAVE POWER OF JUDICATURE; And, the Commons in their Houſe have power of Judicature▪ and both Houſes together have power of Judicature. But the handling thereof according to the weight and worth of the matter would require a whole Treatiſe of it ſelfe▪ and to ſay the truth, it is beſt underſtood by reading the Judgements and Records of Parliament at large, and the Journalls of the Houſe of the Lords, and the Booke of the Clerke of the Houſe of Commons, which is a Record, as it is affirmed by Act of Parliament in An. 6. H. 8. c. 16. To which he addes theſe marginall Notes Vide Placita in Parlians Anno 33. E. 1. rot. 33. Nicholas Seagrave adjudg • . Par Praelatos, COMITES, BARONES ET ALIOS DE CONCILIO. At the Parliament at Yorke, Ap. 12. E. 3. Conſideratum eſt per Praelatos, Comites, BARONES, ET COMMVNITATEM ANGLIAE; the Lord Audleys care. At the Parliament at Weſtm. 15. E. 2 Hugh le pier adjuge per les SEIGNIEURS, & COMMONS. Rot. Parl. 50. E. 3. n. 34. Lord Nevils caſe. Then he a • des. See Rot. Clauſ. 1 R. 2. n. 5. 8. 38. • 0. A treſage Councell le Roy Les SEIGNIORS, & COMMONS, &c. Rot. Parl. 2. H. 5. nu. 1 • . Err • ra ſinned, THAT THE LORDS gave Judgement WIT • OVT PETITION OR AS •• NT OF THE COMMONS, Rot. Parl. 28. H. 6. nu. 10. and many others in the Reigne of King H. 6. and Kin, E. 4. And of later times ſee divers notable Judgements, at the proſecution of the Commons, By THE LORDS, at the Parliaments ••• den 18. and 21. Iac. Regis, againſt Sir Giles Mompeſſon Sir Iohn Michell, Viſcount St. Albon, Lord Chancellor of England, the Earle of Middleſex, Lord Treaſurer of England, whereby the due proceedings of Iudicature in ſuch Caces doth appeare. Then hee cites the caſes of 8. Eliz. Thomas Long, 23 Eliz. Arthur Hall,2. A ••• l, 1. Ma ••• . and Muncton, cenſured by the Houſe of Commons only and by them fined and impriſoned, without the Lords; A • d concludes thus; If any Lord of Parliament, ſpirituall or temporall, have committed any Oppreſſion, Bribery, extortion, or the like, the HOUSE OF COMMONS, BEING THE GENERALL INQUISITORS OF THE REALME, (comming out of all parts thereof) may examine the ſame, and if they find by the Vote of the Houſe, the charge to be true, then they TRANSMIT THE SAME TO THE LORDS WITH THE WITNESSES and PROOFES. From which paſſages of his ſome ignorantly have concluded. That the Lords have no power of Judicature without, but only joyntly with the Commons: That all Commoners ought to be judged only by the Commons, not by the Lords: and That the Commons have a ſole power of Judicature in caſes of Commoners; and the Lords no power but joyntly with them, or upon their preceding Petitions and impeachments, neither in caſe of Commoners; nor Peers.

I anſwer, that Sir Edward Cookes words are much miſtaken▪ and rightly underſtood warrant no ſuch inferences, but the contrary. For firſt, he clearely confeſſeth in direct termes, That the Lords in their Houſe have a power of judicature, even without the Commons; ha he de • med particularly in whoſe, and in what caſes out of the Judgements Records and Journals of Parliament at large (to which he refers the Reader a being beſt underſtood by reading them; which warrant the Lords judging, fining impriſoning and condemning to death not only of Peers, but of Commoners themſelves without the Commons; as I have fully manifeſted; their could no ſuch inference have been made. Secondly, • e adde • , That the Commons in their Houſe have a power of Judicature. From whence Lilburne and others inferre. That they are and ought to be the ſole Judges of all Commoners, and not the Lords, in all caſes triable in Parliament. But this is a moſt groſſe miſtake, Sir Edward Cooke confining this Judicature of theirs, only to theſe three c • ſes. Firſt, to matters and abuſe concerning elections of Knights, Citizens and Burgeſſes, being Members of the Commons Houſe, the judgment and determination whereof the Commons alone (of late times only) have uſually taken upon them without the Lords, which he proves by Thomas Longs caſe, 8. Eliz. and no greater antiquities, of which elections the King and Lords in former times have been ſole Judges: for which I ſhall cite ſome memorable records worthy the Lords and •• mmons conſideration, who now take upon them to ſuſpend eje •• & Judge their own Members elections without the Kings or Lords concurrence or privity, a practice not heard of in former ages and of late originall. In the Parliament holden at Weſtminſter. 5. H. 4. Rot. Parl. num. 38. Thomas Thorpe his caſe. Item, becauſe that the writ of ſummons of Parliament returned by the Sheriffe of Roteland was not ſufficiently nor duely returned as the Commons conceived; the ſaid Commons prayed our Lord THE KING, and THE LORDS IN PARLIAMENT that this matter might be duly examined in Parliament, and that in caſe their ſhall be default found in this matter that ſuch a puniſhment might be inflicted, which might become exemplary to others to offend againe in the like manner: Whereupon our ſaid Lord the King IN FULL PARLIAMENT, commanded THE LORDS IN PARLIAMENT TO EXAMINE THE SAID MATTER, and to doe therein AS TO THEM SHOULD SEEME BEST IN THEIR DISCRETIONS. And thereupon the SAID LORDS cauſed to come BEFORE THEM IN PARLIAMENT, as well the ſaid Sheriffe, as William One by who was returned by the ſaid Sheriffe for one of the Knights of the ſaid County, and Thomas Thorpe, who was elected in full Countie to be one of the Knights of the ſaid Shire, for the ſaid Parliament and not returned by the ſaid Sheriffe. And the ſaid parties being duely examined, and their reaſons well conſidered, in the ſaid Parliament, IT WAS AGREED BY THE SAID LORDS, that becauſe the ſaid Sheriffe had not made a ſufficient returne of the ſaid writ THAT HE SHALL AMEND THE SAID RETURN, and THAT HE SHALL RETURN THE SAID THOMAS FOR ONE OF THE SAID KNIGHTS, as he was elected in the ſaid Countie for the Parliament: and moreover that the ſaid Sheriffe for this default SHALL BE DISCHARGED OF HIS OFFICE, and COMMITTED PRISONER TO THE FLEET, and that he ſhould MAKE FINE and RANSOME AT THE KINGS PLEASURE. Loe here the Lords in Parliament at the Commons requeſt, and by the Kings command, examining and giving judgement in caſe of undue election, even without the Commons. An attendent on Sir Tho. Brooke choſen one of the Knights to ſerve in Parliament for the County of Somerſet, being grievouſly beaten by one Iohn Savage, was upon a petition of the Commons relieved againſt this breach of Priviledge by * Ordinance or Act of Parliament, 8. H. 4. 23. 14. made by conſent of the King and Lords, which is printed in 5. H. 4. c. 6. And in like maner Richard Strode Burgeſſe of Plimton was relieved againſt breaches of his priviledges as a Parliament man, by a ſpeciall act of Parliament aſſented unto by the King and Lords upon the Commons petition, An. 4. H. 8. c. 6. the Commons alone being then unable to relieve them, or puniſh theſe breaches, by their owne authority, as of late they preſume to doe without King or Lords; Quo Jure (having not the power of Judicature veſted in them) I am yet to learne, being contrary to the practice and preſidents of all ancient Parliaments before our preſent age; and the Statute of 11. H. 6. c. 11. provided for this very purpoſe, which preſents another remedy out of Parliament, and not in only the Commons houſe.

In the Parliament of 16. R. 2. n. 6. The Wedneſday after the Parliament began Sir Philip Courtenay returned by the Sheriffe of Devon for one of the Knights for that County▪ came before the King in full Parliament and ſayd, that he underſtood how certaine people had accuſed and ſlandered him to the King and Lords, as well by Bill as by mouth, of heinous matters; and therefore prayed TO BE DISCHARGED OF THE SAID IMPLOYMENT, untill the ſaid accuſations and complaints were tried, and found true, or not true: and becauſe his ſaid prayer ſeemed honeſt TO THE KING and THE LORDS, THE KING GRANTED HIM HIS REQUEST, and DISCHARGED HIM IN FULL PARLIAMENT. AND the Monday following, at the inſtance and prayer of the COMMONS the KING GRANTED THAT HE SHOULD BE RESTORED and REMITTED TO HIS PLACE according to the returne of the ſaid Sheriffe, for to counſell and doe that which belonged unto his office; and after becauſe he had been good and treatable with thoſe who had complained upon him, and condeſcended to a good treaty, he was reſtored in full Parliament to his good ſame. The charge againſt him is expreſſed in the ſame Parliament rol. num. 13. 14. where two Petitions preferred againſt him to THE KING and LORDS IN PARLIAMENT, for putting Thomas Peutyngdon forcibly out of poſſeſſion of the Manor of Bygelog • without juſt cauſe, & Richard Someſtre out of other lands & detaining them from them, he being ſo powerfull in the County, that no poore man durſt to ſue him. Which Petitions were referred by conſent in Parliament to certaine Arbitrators to determine.

From which record it is evident, Firſt, that Members of the Commons houſe may be complained and petitioned againſt for miſdeameanours, and put to anſwer before the King and Lords in Parliament, and there fined and judged (not before the Commons houſe) and that this was the antient way of proceeding. Secondly, that the Commons cannot ſuſpend or diſcharge any of their fellow-Commoners or Knights from ſitting in Parliament, but only the King and Lords in full Parliament, in whom the power of Judicature reſts: much leſſe then can they expell or eject any of their members by their owne authority without the Kings and Lords concurrence and conſents. Thirdly, that the power of reſtoring and readmitting a ſuſpended Member of the Commons houſe belongs not to the Commons themſelves, but to the King and Lords, to whom the Commons themſelves in this caſe addreſſed themſelves by petitinn for Courtneys readmiſſion unto his office, after his ſubmiſſion of the complaints againſt him to the arbitriment of thoſe Members to whom the King and Lords referred the ſame.

In the Parliament of 17. R. 2. n. 23. It was accorded by the King and Lords at the requeſt of the Commons, that Roger Swinerton who was endited of the death of one of their companions, John de Ipſtones, Knight of the ſaid Parliament for the County of Stafford, ſlain in coming towards the ſaid Parliament by the ſaid Roger, ſhould not be delivered out of priſon wherein he was detained for this cauſe, by bail mainpriſe, or any other manner, untill he had made anſwer thereunto, and ſhould be delivered by the Law, the Commons alone by their own power having no authority to make ſuch an order even for the murther of one of their own Members, without the King and Lords who made this order at their requeſt.

In the Parliament of 35. Eliz. when Sir Edward Cook was Speaker of the Commons Houſe, there fell out ſome queſtions in the Commons Houſe about the Amendment of a mistake in the return of the Burgeſſe of Southwark,* 5. R. 2. c. 4 8. H. 4. c. 14. 11. H. 4. c. 16. H. 6 c. 4. 8. H. 6. c. 7. 32. H. 6. c. 15 Ploud. tol. 11. 8 &c. and after long debate it was reſolved that the Houſe could not amend it, but the Lord Keeper in Chancery, where the return was of Record, if he thought it amendable by Law; and that Masten Speaker ſhould wait upon the Lord Keeper about it, which he did; who adviſed with the Iudges concerning it, as appeares by the Journall. And the Statutes made for redreſſe of abuſe of Elections of Knights and Burgeſſes were made by the King and Lords upon the Commons petitions, as appeares by 8. H. 4. n 83 1 9. 11. H. 4. n. 54. Neither of all which ſtatutes gives the Houſe of Commons alone any power of Iudicature to judge the right of Elections, or puniſh abuſes committed in them, but leaves them to the Lords judicature as at firſt, and gives the party injured an action at Law againſt the Sheriffe and • others for falſe returns.

Secondly, Sir Edmund Cooks words extend only matters of miſdemeanor of any Members of the Houſe of Commons committed in or againſt the Houſe it ſelf, of which the • now, though not anciently, are the ſole judges; without the Lords: which he proves by Arthur, Halls caſe. Thirdly to breaches of Priviledges of the Commons Houſe alone, in ſtriking or arreſting any of the Members, or their priviledged ſervants, which he proves by Munctons caſe, and 11. H. 6. c. 11. 5. H. 4. c. 6. the two latter proving the contrary.

Yet in this caſe of breach of priviledge even in arreſting the Commons Members and ſervants, the Commons houſe were no • anciently the ſole Judges, as now. In the Parliament of H. 6. n. 25. 26. 27. 28. Thomas Thorp chief Baron was choſen Speaker of the Parliament, and after his election, and before the Parliament, (which was proroged) he was arreſted and taken in execution at the ſuit of the Duke of York: whereupon ſome of the Commons were ſent up by the Houſe to the King, and Lords ſpirituall and temporall ſitting in Parliament, deſiring that they might enjoy all their ancient and accuſtomed Priviledges in being free from arreſts, and propounded the caſe of Thomas Thorp th •• r Speaker to them, deſiring his inlargement, whereupon the ſaid Lords ſpirituall and temporall, not intending to hurt or impeach the priviledge of the Commons but equally after the Courts of law to adminiſter Juſtice, and to have knowledge what the Law will weigh in that behalf, declared to the Juſtices, the premiſes, and asked of them, whether the ſaid Thomas ought to be delivered from priſon by force and vertue of the ſaid priviledge of Parliament or not? To the which queſtion the chief Juſtices in the name of all the Juſtices aforeſaid communication and mature deliberation had among them, anſwered and ſaid, that they ought not to anſwer to that queſtion, for it hath not been uſed aforetime that the Iuſtices ſhould in any wiſe determine the priviledge of this high Court of Parliam. for it is ſo high and mighty in his nature that it may make that law which is not and that that is law, it may make no law, and the determination and knowledge of that priviledge belongeth to the Lords of the Parliament, and not to the Iuſtices; but as for declaration of proceedings in the lower Courts in ſuch caſes as writs of Superſedeas of Priviledge of Parliament be brought and delivered, the ſaid chief Iuſtice ſaid, that there be many and divers Superſedeas of priviledges of Parliament brought into the Courts, but there is no generall Superſedeas • rought to ſur • e • ſe all Proceſſes, for if there ſhould be, it ſhould ſeem that this High Court of Parliament, that miniſtreth all Juſtice and equitity ſhould let the proceſſe of the common Lawes, and ſo it ſhould put the party plainant without remedy, for ſo much asVpon this ground 1. R. 2. n. 20. 87. 114. 2. R. 2. n. 8. 49. 5. R. 2. n. 44. 13 R. 2. n. 10. 30. 33. 15. R. 2. n. 9. 17. R. 2. n. 10 We find the Commons and Parliament very zealous to maintain the Common Law; and referring cauſes and petitions to it when proper for it, and unproper for the Parliament. actions at Common Law be not determined in this High Court of Parliament. And if any Perſon that is a Member of this High Court of Parliament, be arreſted in ſuch caſes as be not for Treaſon or Felony or ſurety of the Peace, or for condemnation before the Parliament, it is uſed that all ſuch perſons ſhould be releaſed of all ſuch arreſts, and make an Attorney, ſo that they may have the freedome and Liberty freely to attend upon the Parliament. After which anſwer and Declaration it was throughly agreed, aſſentted and concluded by the Lords ſpirituall and temporall, that the ſaid Thomas, according to the law, ſhould remain still in Priſon for the cauſes aboveſaid, the priviledge of the Parliament, or that the ſame Sir Thomas was Speaker of the Parliament, notwithſtanding, And that the premiſes ſhould be opened and declared to them that were com •• for the Commons of this land, and they ſhould be charged and commanded in the Kings name that they with all goodly haſt and ſpeed proceed to the election of another Speaker. The which premiſes, for as much as they were matters of Law, by the commandements of the Lords, were opened and declared to the Commons, by the mouth of Walter M • yle one of the Kings Sergeants at Law, in the preſence of the Biſhop of Ely, accompanied with other Lords in notable number: and there it was commanded and charged to the ſaid Commons by the ſaid Biſhop of Ely in the Kings name, that they ſhould proceed to the election of another Speaker with all goodly haſt and ſpeed, ſo that the matters for which the King called this his Parliament might be proceeded in: and this Parliament took good and effectuall concluſion and end. VVhereupon th • Commons accordingly elected Thomas Charlton Knight, for their Speaker the next day, and acquainted the Lords therewith, and deſired the Kings approbation of their choice, which was accorded unto by the King.

In the Parliament of 39. H. 6. n. 9. Walter Clerke, one of the Burgeſſes of Parliament for Chippenham, was arreſted and impriſoned in the Fleet for divers debts to the King and others, upon a Capias U • lagat • m; whereupon the Commons complained thereof to the King and Lords, and deſired his releaſe, and tendred them an Act of Parliament ready drawn for that purpoſe to which Petition and Bi •• of theirs, the King by the ASSENT OF THE LORDS SPIRITUALL and TEMPORALL aſſented; And thereupon hee was freed. In like maner, Richard Chedder.

In the Parliament of 35. Eliz. Thomas Fitz-Herbert of Staffordſhire was elected a Burgeſſe of Parliament, and two houres after, before the Indenture returned, the Sheriffe tooke him in upon a Capi •• Utlagatum; Whereupon he petitioned the Houſe, that he might have a Writ of Priviledge and be enlarged. After many dayes debate and Argument of this caſe in the Houſe by ſundry Lawyers, and Sir Edward Cooke, then Speaker, it was agreed; That no Writ of Priviledge could in this caſe be returned into the Houſe of Commons, being but a Member of Parliament, and no Court of Record, but only into the Chancery or Houſe of Peers; And that this being a point of Law it was meet the Iudges ſhould be adviſed with, and determine it, not the Houſe: And at laſt he was outed of his Priviledge by the Houſes reſolution. In 28. H. 8. Dyer 60. The caſe of Trewinnerd a Commoner, in point of Priviledge of Parliament concerning an arreſt, was argued and debated before the Judges in the Kings Bench: And ſo was Chedders caſe in 8. H. 4. 12. 13. So as the Commons only are not the ſole Judges of ſuch Priviledge (as many now concerve) but the Houſe of Peers, and Kings Councell, and Judges as well as they. In theſe three caſes only, and no other that I find, Sir Edward Cooke admits the Commons to be ſole Iudges now (though not anciently) without the Lords. Therefore to extend it generally to all, or any other caſes of Commoners, but theſe is to pervert his words, and extend them farre beyond his meaning. Now Lilburnes & Overtons Caſes are none of theſe, but directly under the Lords ſole Iudicature, becauſe infringements of their Priviledges, of which the Lords only are the Iudges, as the Commons pretend they are of their Priviledges; as his following paſſages manifeſt. Thirdly▪ hee addes; that both Houſes together have power of Indicature, but determines not in what caſes, nor in what way of Judicature, which hath cauſed the Object • rs miſtake. But the Judgements, Records and Iournals of Parliament to which he refers, and the caſes he cites in the Margin, will affoyle this doubt, and cleare his meaning, which is this.

Firſt, That in attainders and judgements of High Treaſon, Felony, or other Miſdemeaners in Parliament, where the proceedings are not by way of tryall and ordinary Judicature, but by See 31. H 6. n. 45. 64. 38. H. 6. n. 9. to 36. Bill or Act of Parliament, there both Houſes together (and the King too joyntly with them) have the power of Iudicature: and this is all which is proved by 15. E. 2. Hugh Spencers caſe, who was judged and baniſhed by an Act of Parliament, intituled Exilium Hugonis le Spencer (printed in old Magna Chartaes) as Sir Edward Cooke himſelfe reports in Calvins caſe, 7. Report, f. 11. b. and the Lord Audlyes caſe, 12. E. 2. is the ſame: the Commons having no right to judge them being Peers by the very See Cooke 2. Inſtit. f. 49. 50. 51. Statute of Magna Charta, c. 29. but only the Peer, except in a Legiſlative way, by Act or Bill.

Secondly, That in all caſes of difficultie where the King ſhall pleaſe to demand the adviſe and opinions of both Houſes of Parliament joyntly, there both of them may, and ought to joyne in delivering their opinions and Judgements of the caſe or thing propounded: and this is all that Cooke, 3. I • q • . p 7. where is Caſe of •• grave is cited at large. Sir Nicholas de Seagraves caſe proves 31. E. 1. rot. 33. Who being charged in Parliament in preſence of the King, Earles, Barons and OTHERS OF THE KINGS COUNCEL, (not the Commons or Burgeſſes, but the Iudges, and Kings learned Councell at Law See the Free-holders Grand Inqueſt. 2. 39. 40. 41. 42. and Privy Councell, who were aſſiſtants to the Lords, as I conceive, and others of his Privy Councell, which Sir Edward Cooke would have to expreſſe the Commons in Parliament) then and there preſent; that the King in the wars of Scotland, being among his enemies, Nicholas Seagrave, his leigman, who held of the King by Homage and fealty, and ſerved him for his ayd in that warre, did maliciouſly move diſcord and contention without cauſe with John de Crombewell, charging him with many enormous crimes, and offered to prove it upon his body. To whom the ſaid John anſwered, that hee would anſwer him in the Kings Court, &c. and thereupon gave him his faith. After which Nicholas withdrew himſelfe from the Kings hoſt and ayd, leaving the King in danger of his enemies and adjourned the ſaid John to defend himſelfe in the Court of the King of France, and prefixed him a certaine day: and ſo as much as in him was, ſubjected, and ſubmitted the Dominion of the King and Kingdome, to the ſubjection of the King of France: and to effect this hee tooke his journey towards Dover to paſſe over into France. All which he confeſſed and ſubmitted himſelfe therein de alto et baſſo to the Kings pleaſure. And hereupon the King willing HABERE AVISAMENIUM to have the adviſe of the EARLES, BARONS, LORDS (magnatum) and OTHERS OF HIS COUNCELL enjoyned them upon the Homage, fealty and allegiance wherewith they were obliged to him, quod ipſi fideliter CONSVLERENT, they ſhould faithfully ADVISE HIM, what puniſhment ſhould be inflicted for ſuch a fact thus confeſſed: Qui omnes, habito ſuper hoc diligenti tractatu, & aviſamento, &c. Who all having had thereupon diligent debate and adviſe, having conſidered and underſtood all things contained in the ſaid fact, DICVNT (not by way of Iudgement judicially pronounced but of anſwer to the Kings queſtion propounded, and as their opinion of the cauſe) Said, that this fact DESERVES loſſe of life and members, &c. So as this offence (notes Sir Edward Cooke) was then adjudged in Parliament to be High Treaſon. But under his favour, Firſt, here was no Judgement at all given againſt the party himſelfe, but only an opinion and adviſe touching his caſe (not pending judicially in Parliament by way of Inditement or Impeachment, but voluntarily propoſed by the King) in anſwer to the Kings queſtion; and ſo it can be no proofe of any actuall proper Judicature veſted in both Houſes. Secondly, For ought appeares, this queſtion was only propounded to the Earles, Lords, Barons, and the Kings Councell that aſſiſted them; and ſo only to the Houſe of Peers, not to the commons: and anſwered, reſolved only by them;See the Freeholders grand Inqueſt. p. 39. 40. 41. 42. aliorum de Concilio ſuo; not expreſſing nor including the Commons, as I apprehend, being never ſo intitled in any Parliament Records for ought I can find. And then it followes, that the LORDS ONLY IN THAT AGE were the Judges even of Commoners caſes. Thirdly, Admit the Commons were included yet it proves only a right of adviſing and delivering their opinions with the Lords, when required by the King, not of judging or pronouncing ſentence. Fourthly, Sir Edward Cooke citing this preſident, to prove That both Houſes together have power of Iudicature; muſt grant that even in 33. E. 1. there were two diſtinct Houſes of Parliament, who upon ſpeciall occaſions (as now at conferences, &c.) met and adviſed together; and therefore the diviſion of the Houſes was before Edward the third his raigne, and very probable as ancient as this ſummoning of Knights, Citizens, and Burgeſſes of the Parliament, which ſome make no ancienter then King Henry the firſt, or King Henry the third, In the 40. yeare of his reigne, Father to King Edward the firſt. So as this preſident makes quite againſt the Levellers and Lilburnians deſignes, The Freeholders Garnd Inqueſt. p. 13. 14. 15. and opinions.

Fourthly, Sir Iohn at Lees caſe 42. E. 3. num. 20. (ſaid to be adjudged by the Lords and Commons) is ſomewhat miſtaken. For the record only mentions, That the 21 day of May, the King gave thanks to the Lords and Commons for their coming and ayd granted; on which day ALL THE LORDS & SVNDRY OF THE COMMONS dined with the • ing. After which dinner Sir Iohn at Lee, was brought before the King, LORDS & COMMONS next aforeſaid (who dined with the King) to anſwer certaine objections made againſt him by William Latymer, about the wardſhip of Robert Latymer, that Sir John being of power had ſent for him to London, where by dureſſe of impriſonment he inforced the ſaid William to ſurrender his eſtate unto him; which done, ſome other Articles were ob • ected againſt the ſaid Sir Iohn, Of which for that he could not ſufficiently purge himſelfe, HE was committed to the Tower of London, there to remaine till he had made fine and ranſome at the Kings pleaſure, and command given to the Conſtable of the Tower to keep him accordingly. And then the ſaid Lords and Commons departed: After which he was brought before the Kings Councell at Weſtminſter, which COVNSELL ORDERED the ſaid ward to be releaſed into the Kings hands: So as this record proves not this judgement was given in the Parliament houſe, nor that the Lords and Commons adjudged Sir Iohn, but rather the King and his Councell in the preſence of the Lords and Commons.

Fifthly, The judgement given againſt the Lord Latymer 15. E. 3. Parl. rot. num. 27. (which was for his default in government againſt the profit of the King and Realm, procuring of grants to the deſtruction of the Staple and Towne of Calayes, and levying Impoſitions upon woolls) was given in full Parliament BY THE BISHOPS and LORDS who awarded him to the cuſtody of the Marſhall, and to make fine and ranſome at the Kings pleaſure: Whereupon the Commons REQUIRED (by way of petition) that he might loſe all his Offices, and no longer be of the Kings Councell, which the King granted. The Commons not joyning at all with the Lords in his judgement, neither could they ſo joyne, he being a Peer.

And for the Lord Nevill in that Parliament: num. 33. he was only accuſed, not judged by the Commons.

Sixthly, The caſe of 2. H. 5. rot. Parl. num. 15. that Error is there aſſigned that the Lords gave judgement without Petition or aſſent of the Commons, is a groſſe miſtake: For the record only recites, That Thomas Mountague Earle of Salisbury, Sonne and Heire of Iohn Mountague Earle of Salisbury, exhibited his petition in Parliament to reverſe a judgement given againſt his ſaid father in the Parliament at Weſtminſter in the ſecond year of King Henry the fourth. Whereupon he exhibited certaine reverſals of Judgements given in Parliament, as making on his behalfe, to the Lords conſideration, reverſed for ſome errors aſſigned in thoſe jadgements; to wit one judgement given againſt Thomas heretofore Earle of Lancaſter, before King Edward the ſecond at Pomfract, the monday before the feaſt of the Annuntiation, in the fifteenth yeare of his reigne; and another Judgement againſt Roger de Mortymer, late Earle of March, in the Parliament of King Edward the third, the Monday after the Feaſt of St. Katherine, in the fourth yeare of his reigne, at Weſtminſter. Which judgements being diſtinctly and openly read, and fully underſtood; Jo ſeemed TO THE KING and LORDS that the caſe of the death and execution of the ſaid John late Earle of Sarum, and of the judgement aforeſaid againſt him given, is not, nor was like to the caſe of the executing of the ſaid Thomas heretofore Earle of Lancaſter, nor to the caſe of the killing of Roger Earle of March, nor to any judgement given againſt the ſaid Thomas and Roger, as aforeſaid; but that the judgement and declaration had and given againſt the ſaid Iohn late Earle of Sarum WERE A GOOD JUST and LEGALL DECLARATION and JUDGEMENT. Per quod CONSIDERATUM FUIT in praeſenti Parliamento PER PRAEDICTOS DOMINOS tunc ibidem exiſtentes, DE ASSINSU dicti Domini noſtri Regis, quod praefatus nunc COMES Sarum. NIHIL CAPIAT PER PETITIONEM aut proſecutionem ſuam praedictam, Et ulterius TAM DOMINI SPIRITUALES QUAM TEMPORALE ſupradicti, JUDICIUMET DECLARATIONEM praedicta verſus dictum Ioannem quondam Comitem Sarum, ut praem • ttitur habita five reddita DE ASSENSU IPSIUS DOMINI REGIS AFFIRMARUNT FORE ET ESSE BONA, JUSTA ET REGALIA, et ea pro hujuſmodi EX ABUNDANTI DISCREVERUNT, & ADJUDICARUNT TUNC IBIDEM. This is all that is mentioned in this Parliament Roll concerning this buſineſſe.

It appeares by the Parliament Roll of 2 H. 4. num. 30. That Thomas Holland Earl of Kent, Iohn Holland Earle of huntingdo • , Iohn Mountagne Earle of Sarum Thomas Lord de Diſpencer and Ralph omely Knight were impeached of high treaſon, before the King and Lords in Parliament, for levying actuall Warre againſt the King to deſtroy the King, and his Subjects, and for this taken and beheade and hereupon ALL •• E LORDS TEMPORALL BEING IN PARLIAMENT BY ASSENT OF THE KING DECLARED AND ADJVDGED all the ſaid perſons TRAITORS for leavying Warre againſt the King▪ and that as Traytors they ſhould forfeit all the lands they had in fee ſimple the 5 day of Jannary the firſt yeare of the raigne of the King or after according to the Law of the Land, with all their goods and chattells, notwithſtanding they were ſlaine upon the ſaid levying of Warre without proceſſe of Law. So this Record. To reverſe this judgement was this Petition of Thomas Earle o • Sarisbury in 2. H. 5. exhibited, without the errour aſſigned, as appeares by the Par • iament roll: but if it were, that the Lords only gave Judgement without Petition or aſſent of the Commons (as Sir Edward Cooke imagins▪) 〈◊〉 the King and Lords, who upon ſolemned bate over-ruled the errour abuſes and Petitions, and found this judg • ment and Declaration of 2. H. 4. given by the Lords alone with the Kings aſſent without the Commons TO BE GOOD JVST and LEGALL, as they did, ex abund • nti, is a moſt undeniable proofe of the King and Lords ſole right of JVDGEING and DECLARING HIGH TREASON in Parliament without the Commons, as well in caſe of Commoners as Lords. Ralph Lomely being but a Commoner and Knight, though the reſt were Peers; and yet all joyntly adjudged Traytors, and declared ſuch only by the King and Lords without the Commons: and the Judgement aſſured to be good by the Commons who in the Parliament of 13. H. 4. num. 19. Petitioned, the Iohn Lomley might be reſtored by act of Parliament, and made capable to inherit his fathers lands thus attainted, to which the King by ASSENT OF THE LORDS SPIRITVALL and TEMPORALL, conſented.

Seventhly, the Parliament Roll of 28. H. 6. num. 18. &c. containes onely an Impeachment of High Treaſon againſt the King, and other great miſdemeanors againſt the Kingdome, and wrongs to particular perſons compriſed by way of Articles in two diſtinct Bills brought up by the Commons, and preſented by William Treſham their Speaker, to the King in the Lords Houſe, the 7. day of February, againſt William de la Pole, Duke of Suffolke, to which they deſired the Duke might give in his Anſwer by a certaine day, which he did, abſolutly denying the Treaſon againſt the King, and denying and excuſing himſelfe of the reſt, without putting himſelfe upon the Tryall of his Peeres. The Chiefe Iuſtice thereupon, the 14. day of March by the Kings command, asked this Queſtion of the LORDS WHAT ADVISE THEY WOULD GIVE THE KING, what is to doe futrher in this matter; which adviſe was deferred till Monday then next following; whereon nothing was done in that matter. On Tueſday the 17. of March, the King ſent for all the Lords Spirituall and Temporall then being in Towne (being 42. in all into his Inner Chamber within his Palace of Weſtminſter, where when they were all aſſembled▪ hee then ſent for the Duke thither, who comming into the Kings preſence, kneeled downe, and continued kneeling till the Chancellour of England had delivered the Kings command to him; and demanded of him, what he ſaid to the Commons Articles, not having put himſelfe upon his Peerage? Whereupon the Duke denyed all the Articles touching the Kings Perſon and ſtate of the Realme, as falſe and ſcandalous. And ſo not departing from his ſaid Anſwers, ſubmitted himſelfe wholly to the Kings Rule and Governance, without putting himſelfe upon his Peerage. Where thus the Chancellour told him That as touching the great and horrible things contained in the firſt Bill, the King holdeth him neither declared nor charged. And as touching the ſecond Bill, containing miſpriſons which are not criminall, the King by force of his ſubmiſſion, by his owne adviſe, and not reporting him to the advice of the Lords, nor by way of judgement, for he is not in place of judgement, putteth you to his rule and governance, that before the firſt of May next comming, hee ſhould abſent himſelfe out of the Kingdome of England, and all other his Dominions, in France or elſewhere, for five yeares ſpace; and that hee, nor no man for him, ſhould ſhew or waite any malice, nor hate, to any perſon of what degree ſoever of the Commons in the Parliament, in no manner of wiſe, for any thing done to him in this Parliament or elſewhere. And forthwith Viſcount Peamont in behalfe of the ſaid LORDS both Spirituall and Temporall, and BY THEIR ADVICE, ASSENT AND DESIRE, ſaid and declared to the Kings Highneſſe, that this that ſo was decreed and done by his Excellencie, concerning the perſon of the ſaid Duke PROCEEDED NOT BY TH • IR ADVICE AND COVNSELS, but was done by the Kings owne demeanour and rule. Wherefore they beſought the King that this their ſaying MIGHT BE ENACTED IN THE PARLIAMENT ROLL FOR THEIR MORE DECLARATION HEREAFTER, WITH THIS PROTESTATION, THAT IT SHOVLD NOT BE, NOR TVRNE IN PREJVDICE NOR DEROGATION OF THEM, THEIR HEYRS, NE OF THEIR SVCCESSOVRS IN TIME COMMING, but that they may HAVE AND INJOY THEIR LIBERTY, AS THEY OR ANY OF THEIR ANCESTORS, PREDECESSORS HAD AND ENIOYED BEFORE THIS TIME. This is the ſum of this large record, which makes nothing to the purpoſe for which it is cited; that it is errour when both Houſes joyne not in • udgement. For firſt, here is nothing but an impeachment onely by the Commons of a Peere, who ought to be tryed, judged by his Peerage, not by Commoners Secondly, there was no judgement given in Parliament in this caſe, but only a private Award made by the King, out of the Parliament Houſe in his owne Chamber in preſence of the Lords. Thirdly, the Lords entred a ſpeciall proteſtation againſt it, as not made by their advice or conſent. Fourthly, they en • er a ſpeciall claime in the Parliament Roll, for the preſervation of their Right and Freedome of Peerage for hereafter, both of being tryed and judged onely by their Peeres in Parliament; and ſo an expreſſe reſolution, that they in Parliament are and ought to be Iudges, not the Commons. The laſt Records I have cited at large, leſt Sir Edward Cookes briefe quotation and miſ-recitall of them ſhould deceive the credulous or ignorant Reader.

Eighthly, the caſes of Sir Giles Monpeſſon, Sir John Michell, Viſcount S. Alban, and the Earle of Middleſex, whom the Commons onely impeached; and the Lords alone (without the Commons votes or preſence) judged and ſentenced, are direct proofes that the power of Iudicature and Cenſure as well of impeached Commoners as Lords, reſides onely in the Lords Houſe; the Commons being but generall Inquiſitors, to ſearch out and preſent both Lords and Commoners publike offences to the Lords, to whom they tranſmit the charge and witneſſes; the Lords the onely Iudges, to heare and determine the charge, examine the witneſſes upon oath, and paſſe and record the ſentence, and ſee it executed; and no more Iudges in the Parliament, then the grand enqueſt are Iudges at the Aſſizes or Seſſions.

The ſecond and principall objection inſiſted upon by that Ignoramu • , Object. 2. Lilburne, and his diſciples the Levellers, is the Statute of Magna Charta, chap. 29. That no Free man ſhall be impriſoned, outlawed, exiled, or any other way deſtroyed; Nor we ſhall not paſſe upon him, nor condemne him, but BY THE LAWFVLL IVDGMENT OF HIS PEERES, or BY THE LAW OF THE LAND. Whence thus they argue: The Lords in Parliament are not Commoners Peers, but the Commons only, therefore they cannot be judged in Parliament by the Lords, but by the Commons alone; and if Peers there judge Commoners, it is a tyranny and uſurpation even againſt Magna Charta it ſelfe, though it be in caſe of priviledge.

To take away this grand ſeeming objection,Anſw. and give it a ſatisfactory anſwer, I ſay: Firſt, in generall, that there is ſcarce one Parliament ever ſince Magna Charta was firſt confirmed, but the Lords have ſentenced and given judgment againſt ſome Commoners capitally or penally in body or purſe, or both, without the Commons (and did ſo doubtleſſe before Magna Charta was made, as I have already manifeſted) yet never did the Commons in any one of thoſe Parliaments till this preſent, complain of it, as a violation of Magna Charta, or a tyrannicall uſurpation, as Lilburne and Overton ſtile it; but acknowledged it as a juſt right in the Lords, even in 3. Caroli it ſelfe when the Petition of Right was paſſed, in the Lords Iudgment and Sentence againſt Doctor Manwaring a Commoner, impeached by the Commons. And therefore for this one Ignoramus alone, againſt the judgements of all the Commons in Parliament, in all ages, to averre this a breach of Magna Charta, for impriſoning and fining him for the higheſt affront and breach of priviledge over offered to any Parliament, is the extremity of ignorance, malice and ſingularity.

Secondly, I anſwer, that the Statute of Magna Charta extendeth not to, nor was ever intended of the high Court of Parliaments Iudgements and Proceedings, but onely to the proceedings and Iudgements in the Kings great Courts of Iuſtice at Westminſter Hall, the Exchequer, his Privy Councell, and other inferiour Courts held before Judges, Iuſtices of Aſſize, and other Officers, as is evident by comparing this objected Chapter with c. 11, 12, 13, 14, 18. 28, • 0, 3 • , 37. by the Statutes of 25. E. 3. Stat. 5. c. 4. 28. E. 3. c. 3. 37. E. 3. • . 18. 38. E. 3. c. 9. 42. E. 3. c. 3. 17. • 2. c. 6. and the Petition of Right it ſelfe, 3. Caroli, which ſo expound it; there being never any complaint againſt the Parliament it ſelfe or Houſe of Peeres in any age, for breach of Magna Charta, in cenſuring or impriſoning Commoners till now. Therefore this miſapplying of this Law to the Parliament and Houſe of Peers, is a groſſe overſight.

Thirdly, the very literall ſence of this Law is much miſtaken by the Objectors; For that any Freeman of England is a Peer to another Freeman, quatenus ſuch a one, within this Law, though of an higher degree in point of honour, dignity, office, and eſtate; and this clauſe 〈…〉 No Freeman ſhall be impriſoned, and but by the lawfull judgement of his Peers, extends onely to exclude villaines and thoſe who are not Freeholders from being Iudges of Freemen and Freeholders in tryalls by Iury, (whence the Writs to the Sheriffes to ſummon Iurors, require them alwayes to returne Liberos & Legales homines) not to exclude Lords or Peeres (who are Freemen in the higeſt degree) to be Iudges of Commoners who are Freemen. So as the Argument from the true meaning of this Law can be but this, villaines and thoſe who are no Freemen are not to be Iudges, or impannelled in Iuries to condemne Freemen, becauſe they are not their Peeres, nor Freemen as well as they: Therefore Lords who are Freemen of the higeſt degree, may not give judgement againſt Commoners who are Freemen, very learned nonſence, we all know that the Lord Chancellour of England, Lord Keeper, Lord Treaſurer, Maſter of the Court of Wards, and ſome of the Iudges of the Kings Courts in Weſtminster Hall in former times, with the Chiefe Iuſtic • ar, and Iuſtices in Eyre were anciently and of late too (as the Earle of Holland and others) Peeres of the Realme, not Commoners; and that all the Peeres of the Realme are in Commiſſions of Oyer and Terminer, and of the Peace, yet did wee never heare of any Commoner demurring or pleading thus to any of their Juriſdictions in Chancery, Kings Be • ch, the Exchequer Chamber, Eyres, Aſſiſes or Seſſions; Sir, I am a Commoner, and you are a Peer of the Realme, but no Commoner as I am; beſides, you ſit here onely in the Kings right, doing all in his name, and repreſenting his perſon, who is not any Peer, but Soveraigne. Therefore you ought not to judge my cauſe not condemne my perſon nor give any ſentence for or againſt mee, it being contrary to Magna Charta, which enacts, That no freeman ſhould be judged or preſſed upon or condemned, but by the lawfull judgement of his Peers. Certainly no perſon was ever yet ſo mad or ſottiſh, to make ſuch a Plea before Ignoramus Lilburne; And if Lords and Peers may judge the perſons and cauſes of Commoners in the Cancery, Kings Bench, Exchequer, Court of Wards, Eyre, and at Aſſiſes and S • ſſions, without any violation of this clauſe in Magna Charta; much more may the Houſe of Peers in Parliament doe it, who are certainly Peers to Commoners, though Commoners be not Peers to them, within the meaning of Magna Charta, ch. 29.

Forthly, If the Lords in Parliament cannot meddle with or give judgement in Commoners cauſe, without breach of this clauſe in Magna Charta, then why didSee his Innocency and truth juſtified. Lilburne himſelfe ſue and petition to the Lords as the onely competent Iudges to reverſe his ſentence in Star-Chamber, and give him dammages, becauſe it was againſt this very Chapter of Magna Charta: If Lords cannot give judgement in the caſe of Commoners as now he holds without expreſſe violation of this Law; then h • mſelfe in petitioning the Lords to relieve him againſt the Starre Chamber Sentence, becauſe contrary to this very Law and Chapter of Magna Charta, was as great a violation of it as his Starr-Chamber cenſure, and his ſentence in Starre-Chamber remaines ſtill unreverſed, becauſe the Lords examining and reverſing of it, they being no Commoners as hee is, but Peers, was Coram non judice, and meerly void, by the Statute of 25. E. 3. St • t. 5. • . 4. becauſe contrary to Magna Charta it ſelfe, as hee now expounds it. Let him therefore unriddle and aſſoyle thi • his owne Dilemma, or for ever hold his tongue and pen, from publiſhing ſuch abſurdities to ſeduce poore people, as he hath don • ; and exa • perate them to clamour againſt the Lords, for being more favourable in their cenſure of him, then his tranſcendent Libels and contempts againſt them deſerved.

Fifthly, This Statute is in the diſ-junctive, by the Lawfull of his Peers, OR BY THE LAW OF THE LAND, which this Ignoramus obſerves not. 〈…〉 Now by the • Law of the Land, every Inferiour Court of juſtice may fine and impriſon men for contempts and miſdemeanors againſt them and their authority: therefore the Lords in Parliament being the higheſt and ſupreamed Tribunall, may much more doe it, and have ever done it, even by this expr ••• e clauſe of Magna Charta; the Law and Cuſtome of Parliament, as well as they may give 〈…〉 judgements in writs of Errour againſter for Commons, without the Commons conſent, as himſelfe • oth grant.

Fifthly, It is granted by Lilburne, that by this expreſſe Law, • o f • eeman of England ought to be judged or cenſured but onely by his Peers, and that Commoners are no Peers to Nobl • men, nor Noblemen Peer • to Commoners; Then by what Law of reaſon dared he to publiſh to the world, 〈…〉 That the Houſe of Commons are the Su • reme Power within this Realme and THAT BY RIGHT THEY ARE THE LORDS JVDGES, certainly this is a Note beyond Ela, a direct contradiction to Magna Charta in this very clauſe wherein hee placeth his ſtrength, and ſubverts his very ground work againſt the Lords juriſdiction in their cenſure of him. For if the Houſe of Commons be by right the Lords • udges, then by Magna Charta, c. 29. they are and ought to bee their Peers; and if the Commons bee the Lords Peers, then the Lords muſt bee the Commons Peers too; and if ſo, then they may lawfully be his judges even by Magna Charta, becauſe here he grants them to bee no other then his Peers; Loe the head of this great Goliah of the Philiſtin Levellers, cut off with his owne ſword; and Magna Charta for ever vindicated from his ignorant and •• ttiſh contradictory Gloſſes on it; and to convict him of his Errour in affirming the Houſe of Commons to bee by right the Lords judges. I might informe him▪ that Magna Charta it ſelfe • . 1. & 20 and Sir Edward Cooke, (his chiefe Authour) in his commentary on them are expreſſe againſt him, that in the Parliament of 15. c. 3. ch. 2. in print, it was enacted. That whereas before this time the Peers of the Land have been arreſted and impriſoned and their Temporalities Lands and Tenements, Goods and 〈◊〉 ſeiſed in the Kings hards, and ſome put to death, WITHOVT IVDGEMENT OF THEIR PEERS, that NO PEER OF THE LAND, Officer or other by reaſon of his office, nor of things touching his office, nor by other cauſe ſhall be brought in judgement, to loſe his Temporalities, Lands, Tenements, Goods, Chattels, nor to bee arreſted or impriſoned, outlawed, exiled, nor forejudged, nor put to anſwer, NOR TO BE IVDGED BVT BY AWARD OF THE SAID PEERS IN PARLIAMENT. which Priviledge of theirs was both enjoyed and claimed in Parliament, 4. E. 3. n. 14. 15. E. 3. n. 6. 8. 44. 49. 51. 17. E. 3. n. 22. 28. F. 3. n. 7. • 0. 16. 10 R. 2. n. 7. 8. &c. and ſundry other Parliament RollsSee Cook. 4. Inſtit. p. 15. • 7. E. 3. 19. And in 11. R. 2. n. 7. All the Lords in this Parliament as well Spirituall as Temporall, claimed this their liberty and franchiſe that all weighty matters in the ſame Parliament to be after moved TOVCHING THE PEERS OF THE LAND, ought to bee determined, and judged and diſcuſſed BY THE COVRSE OF THE PARLIAMENT, and not by the Civill Law, nor BY THE COMMON LAWES uſed in other inferiour Courts of the Relame. The which claime and liberty the King moſt willingly allowed, and granted thereto IN FVLL PARLIAMENT. And hereupon in the Parliament of 14. R. 2. n. 13. The King and LORDS (without the Commons) ADIVDGED the Earledome and Seigniory of Richmond to bee forfeited, by reaſon that Iohn Duke of Br •• tany then Earle of Richmond adhered to the French againſt his Allegiance. This Paradox therefore of his, is againſt all Statutes, Law-Books, and Preſidents whatſoever, and Magna Charta it ſelfe.

There is onely one objection more of moment remaining,Object. 3. which is this, If the Houſe of Peers may without the Commons fine and impriſon Commoners; then if their fine and impriſonment be unjuſt and illegall, they ſhall bee remedileſſe, there being no ſuperiour Courr to appeale unto, which will bee an intollerable ſlavery and grievance not to bee indured among free-borne people.

I anſwer,Anſw. firſt, that no injuſtice ſhall or ought to be preſumed in the higheſt Court of Iuſtice, till it bee apparantly manifeſted. Secondly, If any ſuch cenſure be given, the party (as in Chancery) upon juſt grounds ſhewed may Petition the Houſe of Peers for a reveiw and new-hearing of the cauſe, which they in juſtice neither will nor can deny; and if they doe, then the party grieved may petition the Houſe ef Commons to interceed in his behal • e to the Peers for a rehearing; but to diſcharge or free any Commoner judicially cenſured by the Lords, I have hitherto met with no Preſident in former Parliaments, nor power in the Houſe of Commons to doe it, who cannot reverſe Euro • ous judgements in any inferiour Courts by writ of Errour, but the Lords alone; much leſſe then the judgements of the Higher Houſe of Peers which is par • mount them, Though I conceive the Houſe of Peers, being the Superiour Authority, and onely Iudicatory in Parliament, may relieve or releaſe any Commoners unjuſtly impriſoned or cenſured by the Commons houſe, or any of their Committees, and ought in juſtice to doe it; or elſe there will be the ſame miſchiefe or a greater, in admitting the Houſe of Commons to bee judges of Commoners; if there bee no appeale from them to the Lords, in caſe their ſentences bee illegall or unjuſt. Thirdly, This miſchiefe is but rare, Cook 4. inſtit p. 21, 22. 4. • 3. n. 14. Brook and C • nmptons juriſdiction, and all Statutes for repealing former Parliaments Acts, Iudgements, or Attaindors. and you may object the ſame againſt a ſentence given, or Law made in Parliament, by the King and both Houſes, becauſe there is no appeale from it, or redreſſe of it, but onely in the next Parliament that ſhall be ſummoned by petition. And there is a greater greevance in ill publique Acts which concerne many, then in •• judgements which concerne but one or two particular perſons; which yet cannot be repealed but by another Parliament; as the Errours and decrees of one generall Counſell cannot bee rectified or reverſed but by and till another Generall Counſell meets to doe it. The ſame miſchiefe was and is in Errous, Iudgements, and Decrees given in the Kings Bench, Chancery, and illegall commitments there; for which there is no reliefe out of Parliament, but towait till a Parliament be called.

Finally, Hee that ſuffers by and under an unjuſt cenſure will have the comfort of a good Conſcience to ſupport him till he bee relieved; and therefore heLuk. • 1. 19. 1 Pet 3. 14. He. • 0, 32, 33, 34. muſt poſſeſſe his ſoule with Patience, and rejoyce under his croſſe, and not raile, murmur, and play the Bedlam as Lilburne and his Companions, Overton, Larner, and other Sectaries doe, againſt our • Pet. 2. 15. to 21 c. 4. • 6. I ••• . 53. Saviours owne precept and example, & then God in his due ſeaſon will Pſal. 3 • . & 37. & 46. relieve & right them in a legall way; whereas their impatience, raving, and libellous railing Pamphlets and Petitions (not ſavouring of a Chriſtian, meek and humble ſpirit) will but create them new troubles, expoſe them unto juſt and heavy cenſures, and rob them both of the comfort and glory of all their former ſuffrings againſt Law and Right.

Having anſwered theſe Objections I ſhall now earneſtly deſire all Lilburnes and Overtons ſeduced Diſciples, whether Members or others, ſeriouſly to weigh and conſider the premiſes, that ſo they may ſee how groſſely they have been deluded, abuſed, and miſled by theſe two Ignes fatui, or New-lights of the Law, and Circumſcribers of the Lords and Parliaments Iuriſdictions, which (God knowes) they no more know nor underſtand then Balams Aſſe, as the premiſes demonſtrate; and I ſhall ſeriouſly adjure them, (if they have any grace, ſhame, or remainder of ingenuity left in them) ingeniouſly to recant, and publiquely to retract all their ſeditiou • rayling Libels, and Scurrilous Invectives againſt the Lords undoubted Priviledges, Iuriſdiction, and Iudicature, which I have here unanſwerably made good, by undeniable Teſtimonies, Hiſtories, Records, and the grounds of policy, and right reaſon, (which they are unable to gaine ſay) to undeceive the many ignorant over-credulous poore ſoules they have corrupted and miſled to the publique deſtrubance of our Kingdomes Peace; Iſay. 9. 16. and let all their followers conſider well of our Saviours caution, Mat. 15. 14. If the blinde lead the blinde (as theſe blinde-guides doe you) both of them ſhall fall into the ditch, and there periſh together: O conſider therefore what I have here written to undeceive your judgements, and reforme your practiſe; conſider that Dominion, Principality, Regality, Magiſtracy, and Nobility are founded in the very Law of Nature, and Gods owne inſtitution, who ſubjected not onely all beaſts, and living creatures to the ſoveraigne Lordſhip of man, to whom hee gave Dominion over them, Gen. 1. 28, 29. c. 9. 2, 3, 5. by vertue whereof men enjoy farre greater Priviledges then beaſts; but likewiſe one man unto another, asGen. 3. 16. Exod. 20. 12. Epheſ. 5. 22. to 30. c. 6. 1. to 10. Rom. 13. 1, 2, 3. Tit. 3. 1. Col. 3. 20, 22. 1 Pet. • . 13, 14, 18 c. 3. 15. Heb. 13. 17. Ioſh. 1. 16, 17, 18. Matth. 8 9. children to their Parents, Wives to their Husbands, Servants to their Maſters; Subjects to their Kings, Princes, Magiſtrates, Souldiers to their Captaines, Mariners to their Ship-Maſters, Schollers to their Tutors, People to their Miniſters; which order, if denied or diſturbed, will bring abſolute and ſpeedy confuſion in all Families, Corporations, States, Kingdomes, Armies, Garriſons, Schooles, Churches, and diſſolve all humane Societies, which ſubſiſt by order and ſubordination onely to one another; and ſeeing Monarchy, Royalty, Principality, Nobility, yea Titles of Honour and Nobility (as Kings, Princes, Dukes, Lords, &c.) are as ancient almoſt, as the world it ſelfe, univerſally received, approved among all Nations whatſoever under heaven, See M • ſt • r Seldens Titles of honour, Dr. Hu •••• es and others of Nob • l • ty. Catane • s C • ologus gloriae mundi. and honoured with ſpeciall Priviledges, as not only all k • eminent Authours, and experience maniteſt, but theſe enſuing Scripture Texts, Gen. 12. 15. c. 14. 1. to 10. c. 17. 6. 16. c. 20. 2. c. 21, 22, 23. c. 25. 16. c. 26. 1. 8. 26. c. 36. 15, 16, 17, 18, 29, 30, 31, to • 3. c. 9. 1, 2. c. 41. 40, to 47. c. 47. 2 • , 26. Exod. 1. 8. Numb. 20. 14, &c. c 21, 1, 1 • , 21, 33. c. 22. 7, 10, 14, 15, 40. c. 23. 17. c. 7. 2, 3, 10. c. 16. 2. c. 27. 2. c. 32. 2. Dent. 17. 14, 15, 16. Ioſh. 1. 16, 17, 18. c. 5. 1. c. 8. 9, 10 11, 12. Iudg. 9. 6, 18. 1 Sam. 8. 5, 6. 2 sam 11. 2. 1 Kin. 4. 34. c. 10 15, 28, 29. c. 20. 16. c. 23. 22. Iob. 3. 14. c. 36. 7. Pſal. 2. 2. 10. Pſ. 62. 12, 14, 29. Pſ. 72. 10. Pſ. 102. 15. Pſ. 136. 17, 18. Pſ. 138. 4. Prov. 8. 15, 16. Prov. 30. 31. Eccleſ. 10, 16, 17. Iudg. 3. 5. c. 16. 8, 1 Sam. 5. 11. c. 29. 2, 6, 7. Dan. 4. 36. c. 5. 9, 10, 23. c. 6. 27. Mat. 8. 9, Mar. 6. 21. c. 10. 42. 1 Cor. 8. 5. Rom. 61. 1, 2, 3, 4. 1 Tim. 2. 1, 2. Tit. 3. 1, 2. 1 Pet. 2. 13, 14, 15. Acts 9. 27. (which I wiſh our Sectaries, Lovellers and Lilburniſts to conſider and ſtudy, with the others forecited; it will be a meer deſperate folly and madneſſe in any man to prove Antipodes to this inſtituiion of God, Nature, Nations; to run quite contrary to all meu, and to levell the head, neck, ſhoulders to the feet; the tallect Cedars to the loweſt Shru • s; the roofe of every building to the foundation ſtones, the Su • ne, Moone, Starres, Heavens, to the very Earth and center, and even men themſelves to the meaneſt beaſts. I ſhall therefore conclude with Saint Pauls ſerious admonition, which theſe refractory perſons have quite forgotten, Rom. 13. 1, 2, 3. Let every ſoul be ſubject to the higher Power for there is no po • er but of God the powers that be are ordained of God; whoſoever therfore reſiſteth (much more oppugneth, aboliſheth) the Power, reſiſteth (oppugneth, aboliſheth) THE ORDINANCE OF GOD, and t • ey that reſiſt (oppugne or endeavour to aboliſh theſe powers) ſhall receive to themſelves DAMNATION; for Rulers are not a terrour to good workes, but to the evill, and wherefore YE MVST NEEDS BE SVBIECT, NOT ONLY FOR WRATH, but alſo FOR CONSCIENCE SAKE. And for this cauſe pay you tribute alſo, for they are Gods Miniſters, attending continually on this very thing. Render therefore to all (ſuch higher Powers) their dues, tribute to whom ribute, cuſtome to whom cuſtome, feare to whom feare, HONOVR to whom HONOVR IS DUE, (which Saint Peter likewiſe ſeconds almoſt in the ſelfe-ſame words, which you may doe well to peruſe and ſtudy, 1 Pet. 2. 12. to 20.) and then you will never dare to queſtion or diſpute any more the Power, Iudicatory, Priviledges of the Right Honourable Houſe of Peers, much leſſe to Revile and Libell againſt their perſons as now you doe, to the infinite Scandall of your Schiſmaticall faction, and Religion it ſelfe, which you profeſſe onely in ſhew, but deny in deed and practiſe.