which is but the king's suit, the reason being | the law too. Crompt. Jurisd. of Courts, in his the same in both. But it may perhaps be thought, that in respect of the persons concerned in it, this was too high a flight, and too bold an attempt, and that the height and eminence of some persons may exempt them from common justice, and from the power even of a parliament. In answer to which, I would observe, that some laws are more especially levelled against the highest subjects. By the statute of W. 1, c. 5, the king forbids that nul haute homme,' no high or great man, upon pain of grievous forfeiture, disturb elections, but elections ought to be free. The like may be observed in the statute of W. 1, c. 35, Des hautes hommes,' &c. And the greater the persons are, if they are in the rank of subjects, they must be subject to the king's laws, and they are the more proper for the undertaking and encounter of this high court. It will not be Impar congressus.' I cited before, the Mirror of Justices, c. 1, p. 9, where it is said, that parliaments were ordained for to hear and determine in such wrongs, and against such persons, especially against whom otherwise common right cannot be had. I will cite no historians to prove what hath been done in antient times within this very kingdom, of this nature against the highest subjects. I will keep still within my own sphere, and cite none but authorities in law. And so keep myself in the way that belongs to me, and so doing, I am under the protection of this court and of the law, and may rely upon the performance of that blessed promise, He will keep thee in all thy ways.' There must be no respect of persons in doing justice. The great Judge of all the world gives it as a rule, and himself gives the example, God is no respecter of persons.' ་ The king was pleased to charge both Houses, to make a strict and impartial enquiry. I shall cite two authorities in law, that come to this point. The first is in case of a brother and heir apparent too, and of a person that did after succeed in the crown. King Richard the 1st in his Magna Curia.petiit sibi Judicium fieri de Comite Johanne fratre suo qui contra fidelitatem quam ei juraverat, Fœdus contra eum cum inimico suo Rege Franciae inierat.' That was the offence charged. It may possibly be objected that the king himself complained: True, but he complaius to the proper judicature: This proves their power. Hunt's Arguments for Bishops, fol. 80. But what did the high court do upon that complaint? They pronounced a very severe sentence, though it were but in the nature of a mean process to make him appear, and an Chapter of the Court of the King's-bench. It a case of Corpus cum Causa.' Whidden one of the judges of the court, cited a case that did happen in the time of Gascoiga, Ch. J.in the reign of king H. 4, Gascoign commite the prince of Wales (who was afterwards on king H. the 5th,) to prison for endeavouring t take away a prisoner from the bar of the King's-bench, and the prince humbly submit ted and went to prison, and the king hearing d it, commended it. If the King's-bench, being an inferior court to that high court, might soar so high, bew much more the highest court of the realm, where the king sits in the exaltation of his acá, and is in his greatest splendor? The king in deed is presumed in law to be in this curt, which makes the stile of its proceedings to be 'Coram Rege,' and some of our kings have been said to have sate here. But the king is his high court of parliament, per eminention, as H. 8, one of the highest and most reso lute of our kings said in the case of Ferrers, (which I cited before to another point,) Thai he was informed by his judges, (who were all then present) that he in no time stood so high in his state royal, as in the time of parliament Then if we consider the person whom the Ch J. Gascoign committed. He was a continuing settled fixed heir, and then prince of Wales whose chair now stands vacant in the Lord' House in time of parliament, and afterward this prince of Wales proved a renowned king 'Nescit Imperare qui nescit obtemperare. The Sacred Scriptures tell us, that the 'her differeth nothing from a servant.' I may say also from a subject, until the time ap pointed of the Father,' Gal. 4, 1, 3. 6 What would the author of the Serm preached before the University have said à these cases that I have cited? He would have called them unwarrantable proceedings, and would have affirmed that the persons thus pr ceeded against, were too sacred to be touched with such unhallowed hands. This hath been the bold language from the pulpit and the press, if the title of the book be true from a Cambe Dr. Oblitus professionis suæ, quæ nil nisi lese suadet et justum.' And the author while he was guilty of gross flattery on the one hand, was not afraid to run into the other extreme, of speaking evil of dig nities on the other hand, of one of the three estates of the realm, of the representative of the great body (whereof he himself makes bat small inconsiderable atom). [So called 1 Eliz. c. 3, 4 H. 8, c. 8, the House of Common called the Honourable House in the Petition Rich. Strode, which is part of the act.] We know from certain and undoubted histe ries of our own, that in the time of king H. 8, greater persons in the account of the law that the prince of Wales, and yet but subjects of the king, have been brought to trial, and that before lords commissioners; and however, in other respects their cases might be very hard, yerit 3 never doubted but they were subject to the v and justice. process be erroneous. Qui jussu judicis aliquod fecerit, non videtur dolo malo fecisse quia parere necesse est.' Now to proceed to my second point, wherein Keilwey 99, à med. by Brudnel, and the hall be brief, viz. That however, the matters lord Dier in Trewinnard's Case, fol. 60, b. arged in the Attorney General's Information Where a writ of privilege in case of a parlianot to be imputed to the defendant in this ment-man arrested, is granted, where it ought se: he being but the minister or mouth of not to be; and the sheriff by virtue of that House, and acting only by their order. He writ discharged the person arrested. Yet the frequently in the parliament records styled sheriff (saith that case) is not chargeable in an mouth of the House whose Speaker he is. action for this: Parere necesse est.' What Mr. Hakewell in his Treatise of Parliaments, that necessity is we may see in that case of 200, among the catalogue of Speakers, be- Trewinnard, Dier fo. 61, à med. if the sheriff Is with Petrus de Mountf, whom he makes refuse to execute the writ. And as a fair warneaker, 44 H. 3, of the House of Commons, ing to sheriffs and other officers, not to resist or dhe cites the register of St. Albans for it, disobey the commands and orders of the House . 207, where it is said that Petrus de Mount of Commons, the lord Dier mentions what pud Vice totius communitatis consented to the nishment was inflicted upon the sheriffs of LonIgment of banishment of Adomar de Valence don, in the case of Geo. Ferrers. They were hop of Winchester, and sir Robert Cotton committed to the Tower for their contempt in rees with Mr. Hakewell in this point. Mr. not letting a parliament-man taken in execuyn in his preface to sir Robert Cotton's Abr. tion, to go at large, when the Serjeant at Arms of an opinion by himself, that tota commu- of the House of Commons came for him withitas' signifies the whole baronage. But it ap-out a writ. Nay, the lord Dier says, in the ars by the body of the letter there written, latter end of that case of Trewinnard, that if at communitas' is distinguished from the the parliament erred, (he speaks it of the House najores.' Sir Robert Cotton's Abridgement, of Commons) yet there is no default in the sheE. S, fol. 12, in the upper part, it is said, the riff. When the late king being in person in rds and great men by the mouth of sir Henry the House of Commons, and sitting in the gaumont. Mr. Hakewell in his aforesaid Speaker's chair, asked the then Speaker, Whe reatise, speaking of William Trussel, says, ther certain members, whom the king named, e Commons answered by his mouth: 13 E. were then in the House? The Speaker an2 R. 2, numb. 16, sir Robert Cotton's Abr. swered readily and wisely, and with a good I. 174. The Commons return their Answer presentness of mind (which arose from the gethe king by sir James Pickering their nius of that House) That he had neither eyes peaker. 17 R. 2, numb. 17, sir R. Cott. Abr. to see, nor tongue to speak,' but as the House 53. The king advising with the Commons, was pleased to direct him. ncerning a peace with France, return their nswer by sir John Bussey their Speaker. ir. Hakewell in his book before cited, fol. 205, H. 4, says, that sir John Tiptoft, while he as Speaker, signed and sealed the deed of eniling the crown with these words, Nomine totius communitatis.' Mr. Elsing in his Treatise of Parliaments, l. 125, tells us, that what was spoken by the peaker is entered in the rolls, as spoken by Je Commons. S. As to the last point; That for matters done in or by the parliament (as the matters in our case are) neither the King's-bench, ment itself, can by law take cognizance of it. nor any other court, but the court of parlia This is the great point of the case. I shall first offer to prove it by Reasons, and then I shall back and enforce those reasons by many authorities, and those of the highest sort. 1 Reason. The parliament gives law to this But take what is done by the defendant to be court of the King's-bench, and to all other is proper acting, yet he acting only as a mi-courts of the kingdom; and therefore it is abister and servant to the high court of parlia- surd and preposterous that it should receive ent, by the ordinary rules of law, in cases of law from it, and be subject to it. The greater fficers, he is not suable, nor any way punish- is not judged of the less. ble for it. This is resolved in the countess of Rutland's ase, 6 Rep. 54, and the same case likewise reorted in Moor's Rep. 765. That an officer or ninister executing process which is erroneously warded (as where a capias is awarded against peer) the officer is to be excused; for he must lot dispute the authority of the court, but obey. And in that case the secondaries of the Comper, and the serjeants in London were excused And held not guilty of any offence. So in the case of the Marshalsea, 10 Rep. 76, where the distinction is, If the court have jurisdiction, the officer is excused though the for examining the judgments of the court of 2. The parliament is the immediate court King's-bench, and if they be erroneous, they reverse them; and if this court should against law take upon them to proceed in this cause and give judgment, the parliament when it meets, no doubt, will set it aside as erroneous: and no man does in the least doubt but they have power to do it, and there is as little doubt but they will do it; therefore it is wholly in vain for this court to take cognizance of it; and it caunot be reversed elsewhere, it being in a matter of jurisdiction. See the statute of 27 Eliz. c. 8. The preamble reciting, that erro. neous judgments given in the King's-bench are | erroneous proceedings in other courts, by anonly to be reformed by the high court of par- thorities in law, which confirms one of my realiament; which court of parliament was not in sons. those days so often holden, as in ancient time it had been: neither yet in respect of the greater affairs of the realm could they well be considered of and determined in parliament, &c. [1 Jac. c. 1. The like words.] There is an exception of errors that concerned the jurisdiction of the King's-bench; those remain as before; and in the errors that are referred to the judges of the Common Pleas and barons of the Exchequer, by 27 Eliz. c. 8, the jurisdiction of the parliament is to examine them, &c. In Trewinnard's case, it is said, that though the parliament err, it is not reversible in any other court: this is spoken in a case where the then occasion was upon a judgment gives only by the House of Commons, in a case of privilege. Agreeable to this is 21 E. 2, fo. 46, Br. Alt. Tit. Error. plac. 65, in the latter end of that case, and 7 H. 6, Br. Abr. Tit. Error. plac. 68, 1 by Cottesmore, and 1 H. 7, fo. 19, Br. Error plac. 137. Error in parliament shall be reversed in parliament, et non aliter;' for there " 3. This court, as all the courts of common-is not an higher court. 1 H. 7, fo. 19, 20. law, judge only by the ordinary rules of the common-law. But the proceedings of parliainent are by quite another rule. The matters in parliament are to be discussed and determined by the custom and usage of parliament, and the course of parliament; and neither by the civil, nor the common-law, used in other courts. By all the judges in the Exchequer-chamber for a judgment in the King's-bench, emur must be sued in parliament; and as the parlisment shall correct the judgments, so they are to correct the judges that give corrupt and d honest judgments. These are the words and the opinions of the lord chief justice Vangham in bis Reports, fo. 139, in Bushel's case. Such, says he, in all ages have been complained of the king in the Star-chamber, (which is a court now dissolved by parliament) or to the parliament. He there mentions many judge; 5. The high court of parliament is the those 44 that were hanged in king Alfred's dernier resort, and this is generally affirmed time before the conquest, for corrupt judgand beld; but it is not the last, if what they do ments; and those in the time of E. 1, E. 3, and may yet again be examined and controlled." R. 2, for their pernicious resolutions: be 6. The parliament is of an absolute and un-vouches the journals of parliament, and inlimited power in things temporal within this nation. 4. The judges of this, and of the other courts of common law in Westminster, are but assistants and attendants to the high court of parliament: and shall the assistants judge of their superiors? I shall now proceed to Authorities that are full to this point, and do second and back those reasons that I have offered; wherein I shall not observe any method by reducing or ranking of them under these reasons that I have offered, because some of the authorities justify several of these reasons, all at once. That the parliament hath the highest and most sacred authority of any court; that it hath an absolute power; that it is the highest court in the realm, is acknowledged by our most learned and gravest writers and bistorans; for I would not wholly omit them, though I do not need them; but I rely only, and put all the stress of my proofs and arguments upon my authorities in law. stances in the judgment of Ship-money in the last king's time, and the particular judges inpeached*. Sir E. Coke, in bis 12 Rep. fol.64, the waris are spoken by sir E. C. but (as that Rep, sy with the clear consent of all the Judges. The king hath his court, that is to say, in the upper House of Parliament, in which he with s Lords is the supreme judge over all other judges. For if error be in the Common-pless, that may be reversed in the King's-benca; and if the court of King's-bench err, that may be reversed in the upper House of Parlamen by the king with the assent of the Lords." Now though this is spoken of the Lords House only, yet it must be again remembertu that the parliament (as I proved before) is one entire body, and that their power in the night Cambden in his Britannia, Summam et of it is entire, though as to the exercise of it, sacrosanctam Authoritatem habet Parliamen- it is distributed into parts, and is divided: Dr tum.' Knighton, de eventibus Angliæ, I. 1, can the House of Lords exercise any power us fo. 2631, col. 1, 2. He calls it the highest an House of Parliament, or as a court for er court of the realm. So it is called in Trewin-rors, without the House of Commons be n nard's case, in Dier 60, 61. Sir Thomas Smith in his Common-wealth of England, I. 2, c. 2, fo. 50, 51. In Comitiis Parliamentarus posita est omnis absolutæ potestatis vis,' Sir R. Cotton in his Posthuma, edit. at Lond. pag. 345, cited by Mr. Pryn in his preface to Sir Robert Cotton's Abr. The parlament contrells all inferior courts, and all causes of diculty; * cum aliqua dubitatio emergit,' refer it to the parliament. To shew their power and jurisdiction upon being at the same time. Both Houses mist be prorogued together, and dissolved together; like the twins of Hippocrates, they live and in together, and the one cannot be in being, with out the other also, at the same time be in being too. 2 Inst. 408. Matters of difficulty wer beretofore usually adjourned to parbarest but (says he) it is now disused. * See vol. 6, p. 999, of this Collection. And 2 Inst. 599. Courts at variance, pro- | or delivered to them, but by the House itself, perly complain to the parliament. and that is one of the laws and customs of parliament; and yet, no doubt but it was well known to every member of that House, and yet it came not to the king's knowledge. Nu. 16. The Commons delivered to the king the name of the exhibiter, which was sir Tho. Haxey. 4 Inst. In the Chapter of the court of the King's-bench, errors in the King's-bench in matters that concern their jurisdiction, and other cases there excepted in the act of 27 Eliz. cap. 8. cannot be reversed but in the high court of parliament. 4 Inst. fol 67. There is a court erected by the statute of 14 E. 3. cap. 5. stat. 2. For redress of delays of judgments in the king's great courts, consisting of a prelate, two earls, and two barons, to be chosen in parliament by that statute. If the case before them be so difficult, that it may not well be determined without assent of the parliament, (it does not say by the House of Lords only) then shall the tenor of the record be brought by the said prelate, earls and barons, into the next parliament, and there a final judgment shall be given. Si obscurum et difficile sit Judicium, 'ponantur judicia in respectu usq; magnam curiam.' Rot. Parl. 14 E. 3. Num. ult. Sir Jeffery Stanton's case. in 25 É. 3. cap. 2. The chapter of Treason the 2 Inst. fol. 21. The judge or court in some cases, is to forbear going to judgment till the cause be shewed before the king and his parliament, whether it ought to be judged treason or not. That this court proceeds by the ordinary rules of the common law; but that high court of parliament proceeds not by that law, but by a Jaw peculiar to that high court, which is called Lex et Consuetudo Parliamenti,' and consists in the customs, usages, and course of parliament; and therefore, this court, nor no other inferior court, can, for this very reason, judge or determine of what is doue in parliament, or by the parliament. If this court should take upon it to proceed in such cases, it would justly be said of it as a thing very irregular. Metiri se quemq; suo modulo, ac pede, verum est.' Sir Rob. Cott. Abr. 20, R. 2, nu. 14, 15. Sir Tho. Haxey delivered a bill to the Com mons in Parliament, for the honour and profit of the king, and of all the realm, complaining of the outrageous expences at the king's house, and namely of bishops and ladies. Here the Camb. Dr. I have before mentioned, would take occasion again to complain of the sauciness of this bill. K. R. 2 was offended with the Commons for preferring this bill to the king; for it seems they had entertained this information from a particular hand, (as was done in our case from Dangerfield) and they proceeded upon it. K. R. 2, said it was an offence against his dignity and liberty, and said he would be free therein, And sir John Bussey, the Speaker to the parliament (as that roll of parliament calls him) is charged to declare the name of him who exhibited that bill. By this, it appears the king could not take notice of what was done in the Commons' House, VOL, XIII. Nu. 17. The Commons afterwards came and submitted themselves to the king, and craved pardon, and the king excused them. Nu. 23. Sir Tho. Haxey was adjudged by parliament to die as a traitor. The king was offended, the Commons forsook the exhibiter, and submitted, and the Lords adjudge him guilty of treason. This seems to be a strong case against the liberty and the privilege of the House of Commons, (but it seems strange how it should be made treason ;) but it is stranger; especially, if it be supposed this sir Tho. Haxey was a member of the House, one would have thought he should have been under a protection and special privilege. But I take him to be no member, for he is afterwards called sir. Tho. Haxey, clerk; and graduates in the university and those in orders, were usually dignified with the addition of sir; and it is not yet quite out of use in the university. 1 find by Mr. Pryn, in his plea for the Lords, fol. 345, that in the next king's reign, H. 4, the Commons exhibited a petition on the behalf of sir Tho. Haxey, (for he was not executed, the archbishop of Canterbury took him into his protection, being a clergyman;) and the Commons in their petition affirm, that the judgment against sir Thomas Haxey, for delivering in this bill to the Commous in parliament, was against right, and the course that had been used before in parliament, in destruction of the eustoms of the Cominons. Here note, That the right and course of par liament, and the customs of the Commons, are mentioned as synonymies. Upon this petition of the Commons, the judgment is adjudged to be null and void. But this could be adjudged no where but in parliament, for it concerned the right and privilege, and the customs and course of the parliament. 1 H. 4. nu. 91, In sir Rob. Cott. Abr. the record says, sir Tho. Haxey, clerk, pardoned, and the judgment reversed, and he restored to all. This case, in very many circumstances, suits with the case of Dangerfield, and in many, with our present case. Ours is in the case of an heir apparent or presumptive. But a greater than the heir is here, in this case of sir Tho. Haxey, namely, the then king himself. But I cite it, principally to prove one of my reasons and arguments to the third point, namely, that there are rights and customs that are peculiar to the high court of parliament; and that there is a law called the course of parliaments, and it may be observed, that the customs of the Commons are the law and course of parliament. 4 Y Concurring with one observation that I made | session of parliament, request the king and out of this case, that one of the laws or customs Lords, to restore their Speaker to them. The of parliament, is, that no member is to publish judges being demanded of their counsel thereat the court, or elsewhere abroad, what is done in; (note, it was nothing but their advice asked.] in the House of Commons, but it ought to pro- It was after mature deliberation, they answereeed from the House itself, and no other, ed, It was not their part to judge of the par(which is another argument, to prove that no liament, which may judge of the law. Note, other inferior court can enquire into, or hear or the reason to judge of the law, signifies they determine of their doings) for no notice can be are the supreme court to judge what is hw, taken of what they do, unless it come by their and what is not. And to judge of the law, own relation and discovery. likewise signifies, that they can judge whether a law be good or not; in order to approve of it, and to enact it, or to repeal a law. [Mr. Pryn, in his Plea for the Lords, calls this a famous memorable case, and says he was then chief baron.] That, I say, which concurs with this, is another roll of parliament of that noble king, H. 4; viz. 2 H. 4, nu. 11. The Commons require, that is, request the king, that he would not give an ear to any untrue reports of the Commons' House, until the time might try the same; and that time is when the Commons apply to the king in it, and not before. Whereunto the king granted; which allows it to be the law and course of the parliament. 4 Inst. fol. 15. Every court of justice, says sir E. C. hath rules and customs for its direction. So the high court of parliament,de 'suis propriis legibus et consuetudinibus con'sistit.' Again, sir E. C. in his Select Cases, printed 1677, fol. 63, This is in a case that concerned the privilege of the Commons and their Speaker; and yet they say, that judging in this case were to judge of the parliament: this intimates toe, that the parliament judges by other rules than those of the common law. And it is the common law is the proper element of the judges of the courts of Westminster-hall. This is a second resolution of all the judges in the very point. Mr. Hakewel, in his Treatise of the Manner of Enacting Laws in Parliament, fol. 125, NoNote, says he, the privilege, order, or cusports this case of Thorp at large. tom of parliament, either of the Upper House, or of the House of Commons, belongs to the determination only of the court of parliament. And there he cites two precedents for it. The first that of 27 H. 6, in the controversy between the earls of Arundel and Devonshire, for precedency the king, by advice of the Lords, referred it to the judges to examine and to report; not finally to determine as judges of the case, but as assistants to the Lords. The judges answered, That it was a matter of parliament, and belonged to the king and the Lords to determine. One would think this were a strange answer of the judges, to deny their advice; were they not assistants to the Lords in matters of law? The true reason of their declining to give their advice, is, it was a case above them, and not to be determined by the ordinary rules of law, and therefore out of their element. Quæ supra nos, nihil ad nos.' Therefore their answer was, That it was a matter of parliament, and belonged to the king and Lords, but not to the judges. This is a resolution of all the judges in the very point; though this particular case concerned only the Lords, being a matter of precedency between two lords; yet, as I have proved, the parliament is one entire body, and are mutually concerned in their powers and privileges. The other case mentioned by sir E. C. is that of Tho. Thorp, the speaker of the Commons, 31 H. 6, taken in execution at the suit of the duke of York, during the recess of the parliament. We have it at large in the parlia. ment roll of 31 H. 6, num. 25, 26, 27, 28. The Commons, at the opening of the next It is time now to come to higher authorities, that is, to resolutions of parliament in this point. And first, the resolution of the House of Commons in maintenance of their own right, or at least a claim of their right; I bave it out of an author that is very far from being a friend to the House of Commons; and it is a clergyman too. I mean Dr. Heylin, in the Life of archbishop Laud, fol. 89. He reports, that the House of Commons made a protestation in 1621, against all impeachments, other than in the House, for any thing there said or done. Let me present you with the like claim made by the Lords, which seems to run something in the form of an old act of parliament. In sir Rob. Cott. Abr. 11 R. 2, num. 7. la that parliament, all the Lords, as well spiritasi as temporal, being present, claimed their liberties and franchises; viz. That all weighty matters in the same parliament, which should be afterwards moved, touching the peers of the land, ought to be determined, judged and discussed by the course of the parliament, and not by the civil law; nor yet by the common laws of the land, used in other more courts of the realm. The which claim and liberties the king most willingly allowed and granted thereto in fall parliament, says that roll. Now, as I have before proved, the liberties and franchises of the parliament, in the right of them, are entire, and due to both Houses, for both make up the parliament. Mr. Selden, in his Title of Honour, says, That a thing granted in full parliament, signfies an act of parliament. |