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A86467 The grand question concerning the judicature of the House of Peers, stated and argued And the case of Thomas Skinner merchant, complaining of the East India Company, with the proceedings thereupon, which gave occasion to that question, faithfully related. By a true well-wisher to the peace and good government of the kingdom, and to the dignity and authority of parliaments. Holles, Denzil Holles, Baron, 1599-1680. 1669 (1669) Wing H2459; ESTC R202445 76,537 221

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Chanceler e ceux Ke tuchent Justices v ley veynent a Justices e ceux Ke tuchent Juerie veynent a Justices de le Juerie Et si les besoings seent si grans v si de graces Ke le Chanceler e ces autres ne le pussent fere sans le Rey dunk Ils les porterunt par lur meins de meine devant le Roy pur saver ent sa volentè Ensique nulle Peticion ne veigne devant le Roy e son Conseil fo rs par les majns des avaunt ditz Chanceler e les autres Chef Ministres Ensike le Rey e sun Consail pussent Sanz charge de autre busoignes entendre a grosses busoignes de sun Reaume e de ses Foreines Terres Thus in English In regard the People who come to the Kings Parliament are oft delayed and disturbed to the great grievance of themselves and of the Court by the multitude of Petitions exhibited before the King of which most could be dispatched by the Chancellor and Justices It is provided That all Petitions that concerne the Seal shall come first to the Chancellor and those that concerne the Exchequer to the Exchequer and those that concerne the Justices or the Law shall come to the Justices and those that concerne the Jewes to the Justices appointed for the Jewes And if the businesses be so great or so of Grace as the Chancellor and the rest can not end them without the King then they shall with their own hands bring them before the King to know his pleasure therein So as no Petition shall come to the King and his Counsel but brought by the Chancellor and those Chiefe Ministers that so the King and his Counsel may without the trouble of other busines attend the great businesses of his Kingdome and of his forrein Dominions This is the Order in which two reasons are expressed for their not receiving particular Petitions one in the beginning the other in the end First the ease of the Petitioners and of the House it self which for their multitudes could not give every one his dispatch and secondly that freed of them it might attend the Publick business of the Kingdome Not for want of Jurisdiction And yet be all manner of businesses so put by No! Great ones and such as need grace and favor are still reserved But take it at the strongest admit they had put all out of their own power yet it will be granted they had power till they did in this manner divest themselves of it It appears they had by the Order it self which mentions such multitudes of Petitions I then aske if such resolution of the House at that time could be binding to perpetuity The Houses of Parliament we know are masters of their own Orders and themselves when they please alter the Orders they have made much less then be they binding to succeeding Parliaments And it is obvious to every man who will either look into the Records of Ancient Parliaments or will but recollect his Memory and call to mind what hath passed in our late Parliaments that in all times the House of Peers hath acted contrary to this Order Taking Cognizanceeven of smaller matters which the ordinary Courts of Justice do every day dispatch And no House of Peers did ever do it less then this which in truth hath not done it at all though it be now so quarrelled with for having relieved one poor man from the oppression of the mighty when no inferior Court could do it And this too the only Cause of this Nature that they have medled with during this whole Parliament which hath lasted so many years and hath had so many Sessions And a Cause particularly recommended unto them by the King who is the Fountaine of all Justice not one taken up by themselves which makes not their Case the worse as it may well be hoped But suppose there had been no Reservation at all in that Order of 8 E. 1. of any Cause or any business but that the King and Lords had at that time bound up themselves absolutely from medling with any of those Petitioners Cases and for the Present waved the exercise of their Jurisdiction in all such matters had this been a Renouncing of their Jurisdiction and quitting it for ever No Court but may upon some particular occasion suspende and wave it's Jurisdiction it doth not therefore follow that it must never make use of it again The Court of Chancery doth sometimes appoint a Tryall at Law of points in a Cause which it might have determined it self if it had pleased And at an other time it will determine things of the same nature The House of Peers may do the same and wave their Jurisdiction when they please It did it 13 R. 2. N. 10. in Changeours Case Adam Changeour So is his Name in the Record though the Exact Abridgement call him John petitions the King and Lords against Sir Robert Knolls Setts forth how owing 2000 l to Sir Robert and his Wife Constance he had let him have Lands to receive the Rent till he was Satisfied his debt That Sir Robert had received more then his money due yet kept the Land so prayes remedy The Answer is indorsed upon the Petition Let a Writ be directed to Sir Robert Knolls to appear in Parliament the Friday after Candlemas next to Answer the things contained in the Petition Upon hearing the business the Lords leave it to be tryed at the Common Law This seemes a stronger President for trying all at Law and not in Parliament then any which the Gentlemen of the House of Commons urged at the Conference For here was an absolute dismission of the Cause and not ad praesens only as was in their Presidents But I believe such wise and knowing men could not but see that this President would not so much have helpt one way as done prejudice to their Case an other way The Prejudice it would have done had been this that themselves by their own shewing had overthrown one of their maine Arguments which was That all Proceedings in cases of Freehold should be by the Kings Writ and that no Writ was ever made Returnble Coram Dominis Spiritualibus et Temporalibus Whereas here had been in their own President mention of a Writ returnable in Parliament which is Tantamount and signifies the same thing But I have in this Discourse given Examples of several others in the same kind where Writs are issued by Order of Parliament returnable in Parliament and many more there are if it were necessary and worth the trouble to set them down And then what had they gotten by telling us That the Lords once would not retaine a Cause which was tryable at Law and would for once wave their Jurisdiction in such Matters When it was shewed to them by multitudes of Presidents That the Lords had most frequently done otherwise at other times in Cases of the same Nature And Presidents in the Affirmative are those that prove
THE GRAND QUESTION Concerning the IVDICATVRE Of the HOVSE of PEERS Stated and Argued And the Case of THOMAS SKINNER Merchant complaining of the East India Company with the proceedings thereupon which gave occasion to that Question faithfully related By a true Well-wisher to the Peace and good Government of the Kingdom and to the Dignity and Authority of Parliaments by Denril Lord Hollis who dyed Feb 17th 1 0 1679 80 Judicium Dominorum Spiritualium Temporaliū est SecundūVsum Consuetudinem Parlamenti Vsus Consuetudo Parlamenti est Lex Parlamenti Lex Parlamenti est Lex Angliae Lex Angliae est Lex Terrae Lex Terrae est Secundum Magnam Chartam Ergo Judicium Dominorum Spiritualium Temporalium est secundum Magnam Chartam London Printed for Richard Chiswel at the two Angels and Crown in Little Brittain 1669. THE JURISDIC-TION OF THE House of Peers ASSERTED THe Power of the House of Peers in Point of their Judicature having been lately called in question upon occasion of a ●udgement given by them in a particu●ar Case which they conceived not ●…yable elsewhere in the Ordinary Course of Law It will not be amiss ●or the removing of all prejudice out of ●…ens minds to make a clear Narrative ●f the matter of Fact with some Observations upon it and the Additions of ●ome Presidents and Arguments Such 〈◊〉 may serve to evince and set forth the ancient way of Proceeding in that House as to their Judicial Capacity even the same which they have continued to practice in succeeding times and so leave it to the Judgement and conscience of every unbiassed indifferent man to satisfie himself If now there hath been any Innovation any new Incrochment of Power any Variation from the constant usage and Priviledge of the Peerage in all times Ancient and Moderne The business was sincerely thus Soon after his Majesties happy Restauration one Thomas Skinner preferred a Petition to him in Council purporting great Oppressions and Spoils Sustained by him in the Indies from the East-India Company robbing him of a ship and goods of a great value dispossessing him of a Plantation he had there a dwelling House ware-House at Iamby and an Iland called Barella which he had bought of that King assaulting his person to the danger of his life and several other Injuries done him For which he prayed the Kings Justice to appoint a Court Constable and Marshall to Heare and Determine those matters they not being otherwise Determinable by the ordinary Course of Law or to put it into any other way for Just Relief After some years Attendance and Sollicitation and several Petitions of this poor mans the King at last referrs it to certain Lords viz. The Lord Arch-Bishop of Canterbury the Lord Chancellor the Lord Privy Seal and the Lord Ashley to call all Parties before them and compose the matter if they could The Order of Reference runs thus Whereas upon the Petition of Thomas Skinner Merchant Setting forth his Sufferings under the barbarous oppressions of the East-India Company His Majesty was Gratiously pleased by Order of the 27. of August last to deferre theclearing of the matter for erecting a Court to determine affaires of this nature till the second meeting of this Board at White-Hall and in regard the said Company have Slighted the Orders of this Board and not complyed with any References or Mediations designing to we are out the Petitioners Life in tedious Attendances He did by his Petition this day read at the Board humbly pray that the said Court may be now Erected to relieve the Petitioner according to Justice put a Period to his grievances Whereupon his Majestie present in Council did Order That his Grace the Lord Arch-Bishop of Canterbury the Lord Chancellor Lord Privy Seal and the Lord Ashley do send for the Governor and some of the Members of the East-India Company to treat with them and to induce them to give the said Mr. Skinner such reasonable satisfaction as may in some measure be answerable to the loss and damage he hath suffered under them Signed John Nicholas These Lords Referrees met took much pains in it spent several dayes Ordered Mr. Ayloff of Counsel with Skinner to give them under his Hand a true State of the business whose report I will here set down in Terminis The Case of Thomas Skinner Merchant and his demands against the East-India Company for damages done him in the year 1659. in India IN the year 1657. was a general Liberty of Trade into the East Indies Then Thomas Skinner furnished and set forth his Ship called the Thomas from London on a trading voyage to the Indies and arrived there in 1658. The Compan by their Letters the 7o. Maij 1658 which arrived in India in November following commanded their Agents to Seize all ships and goods of English trading there and dispose half to the Common-wealth and half to the Company The Agents of Bantam direct those of Iamby to seize the Estate of Frederick Skinner in the hands of Thomas saying Thomas had nothing there of his own and that Thomas Leaver chiefe of Jamby should secure in his hands what Estate he had of Fredericks for a Debt suggested owing by him to the Company upon which pretences they seized Thomas Skinners Ship and Goods broke open his Ware-House assaulted him in his House and dispossest him of his I stand Barella for which Injuries he hopes satisfaction and therefore in particular demands For 128 Peculls of Pepper 24 Peculls of Nutmegs and for Beef strong Waters and other Provisions and Merchandizes taken out of his Ship by the Agents of Jamby and the Crew of the Ship Dragon then in the Companies service Ryals   3355 The Company agree the Value 3160 Ryalls brought to their Account but it being proved That the rest was laden on Board Skinners Ship this imbezlement or subduction by the Agents is just to lie upon the Company   Ryals For his Ship and Furniture sworn by two Witnesses to be worth when set out five or six and twenty thousand pounds sterling and that she was worth as much or more in India when taken yet abate a fist for ware and tare rests 8000. For eleven small Copper Ordnances and their Field Carriages 350 Ryals and two Quoyles of Ropes 80 Ryals in all 0430.   Ryalls For 10 Barrels of English Powder at 25 Ryals per Barrel and Sword Blades Spectacles Prospective Glasses Boxes Knives Cisors and other small Merchandizes Iron Works Nails Pistols Pictures Looking Glasses with Ebony Frames on board Ship-planks and other Wood on shore and in the Ware-House valued by Marmaduke Grimston and Peter de Barrier Purser of the Ship at 1730. For Moneys owing by Thomas Leaver to Frederick Skinner assigned to Thomas and accepted by Leaver with promise to pay but detained by Order of the Company who have in their hands a greater Summe of Leavers to indemnifie them against this Demand 1521. For his Charges at
a desire to relieve them But secondly we must distinguish between a Fact not being a Crime in the eye of the Law which is neither Malum in se nor Malum prohibitum and when the Fact it self being odious and punishable by all Laws of God and Man only a Circumstance as the Place where it was Committe dputs it out of the Power of the ordinary Courts of Justice to take Cognizance of it which are kept to formes and may not trangresse them In the first Case the House of Lords can not punish that for a Crime which the Law doth not make a a Crime but in the second Case God forbid there should be such a failer of Justice in a Kingdome that fellow subjects should robb and worry and destroy one an other though in Forrein parts and there should be no punishment for the wrong doer nor Relief for the party wronged when they come home For then the King might be deprived of many a good subject the Land loose many of her people Trading receive much prejudice and so King and Kingdome suffer great loss and all without remedy But then say the House of Commons Where the Law hath provided and there is an ordinary remedy an extraordinary ought not to be tryed to this the Lords Answer that their House is not an extraordinary remedy but the ordinary remedy in extraordinary Cases and this of Skinners was so both in point of difficulty and point of Compassion And to what is said That it is the Interest of all men in England to be tryed by Juries and there is remedy against willful Juries by Attaint but here is no remedy nor no Appeal It is Answered That the Court of Chancery disposeth of mens Estates without a Jury Every Court of Justice Every Judge in his Circuit sets Fines on mens heads upon several occasions without a Jury Many are tryed for their lives and their Liberties which is more then Estate in the House of Peers upon an impeachment of the House of Commons who are not a Jury nor are sworn therefore that Assertion holds not That all men in all cases are tryed by Juries And for matters of Appeal there doth lye one to the next Parliament or the next Session But it will be said That is to the same Persons And what hopes of any remedy For they wil make good their own Act To this is Answered It is what the Law of the Land hath established We must not be wiser then the Law It is what our Ancestors thought sufficient what hath been the practice of all time And if we leave Posterity in as good a Condition as our Ancestors left us they will have no Cause to Complain Then we must presume that Courts of Justice will do Justice and will do Right that upon better reason shewed upon the Appeal they will alter their minds and give an other Judgement They have done so heretofore How many Judgements of Parliament have been reversed by succeeding Parliaments And where there is Cause for it we must hope they will do so again Then where as it is said That the greatness of the Charge and the Inconveniencies of attending Causes in the Lords House is an Argument against their Judicature They Answer That it is not the House of Lords that appoints such great Fees to Counsel it being left to their Consciences that take them and to the will and discretion of their Clients who give them and who without an Act of Parliament to restraine it may give what they will or rather what they must However The Lords say that the charge in Chancery is greater there having been some times forty fifty Orders made in one Cause and the delay much greater so as some Causes have lasted there very many years And even at the Common Law how many Verdicts have been given in one Cause contrary Verdicts one for the Plaintiff an other for the Defendant Contrary Rules of Court the Judges give a Rule one day and three daies after give an other clean contrary As an Instance of it can be given but of last Trinity Term in the Kings Bench. These are Inconveniences that lye not in the House of Peers But admit there were Inconveniences Many Laws are found inconvenient which yet are put in execution and all obedience given to them whilest they stand unrepealed And the Question is not now of Convenient or Inconvenient but matter of Right Is it the Right of the House of Peers hath it still been the Custome and Usage of Parliaments and consequently the Law of Parliament that they should exercise such a Power of Judicature If it be so as it is and will be sufficiently proved then the point of Conveniency or Inconveniency is out of doors Well may it be a motive to alter it by the Law But we will play with them at their own Weapon and joyn Issue upon that point that the Inconveniency is but imaginary and so farr from an Inconvenience that it is the great advantage of the subject that it should be so As well to give relief in Cases otherwise unrelievable as to assist and help on the administration of Justice when sometimes the greatness and power of some persons would else bear down or much obstruct and hinder the Proceedings of Inferior Courts An objection also was raised How shall the Lords Judgements be executed after the Rising of the Parliament For so the subject may be deceived And when he thinks that with much Charge he hath made an end of his business he is never the nearer And it is Answered that the House of Peers is not as the House of Commons whose Orders are only of force whilest they are sitting they have power sufficient to require Obedience to their Judgements Nor hath it been knowen that ever any Judgement of the House of Peers was not submitted unto and obeyed till now in this Case of Skinners that the East-India Company stands out in defiance and refuseth all Obedience to it In 15 R. 2. N. 17. in the Case of the Abbot of St Oseches complaining against John Rokell for divers Embraceries and for not obeying an Order of the Duke of Lancasters made therein the Lords Confirme that Order and charge the Lord Chancellor to see Rokell perform it Why may not the Lords do the same still if they doubt of Obedience to their Orders But there was never question made of it before And there are many Presidents of Orders given to persons to act some thing in the Intervalls of Parliaments to give an account of it to the Lords at the next ensueing Parliament which shewes that their Authority stil continues to empower those persons to act and to execute their Orders even when the Parliament is risen 15 E. 3. N. 48. The Bishops of Duresme and Salisbury the Earl of Northamton Warwick Arundell and Salisbury are appointed to take the Answer of the Archbishop of Canterbury and to report it to the next Parliament And 51 E.
and it pertained to the King and not to the Arch-Bishop to take cognisance of the Imprisonment if or no it was lawful The Judgement is Videtur Domino Regi in pleno Parlamento praedictis Comitibus Baronibus c. Quod praedictus Archiepiscopus quantum in ipso fuit nitebatur usurpare super Coronam Dignitatem Regiam c. Propter quod per Comites Barones Justiciarios omnes alios de Consilio ipsius Domini Regis unanimiter concordatum est quod praedictus Archiepiscopus committatur Prisonae pro Offensa Transgressione praedictis Et super hoc ante Judicium pronunciatum licet unanimiter de Consilio praedict Magnatum aliorum concordatum fuisset tenendum in hoc Casu similiter in Casibus consimilibus in perpetuum praedictus Archiepiscopus Magnates alios de Consilio ipsius Domini Regis rogavit quod pro eo Dominum Regem requirerent ut ante pronunciationem Judicii ipsum ad gratiam suam admitteret voluntatem suam They interceded for him and he made Fine to the King of 4000 Marks and was received to favour They did not only give a Judgment in this particular Case which being Contra Coronam Dignitatem was tryable in Westminster-hall but they declare it to be a Standing Rule for the Judging of all Cases of like nature which shews the absoluteness of that Power of Judicature which is lodged in that House It was said That the Lords could not take a Cause to themselves per Saltum and before it had passed all the formalities below That a Writ of Error did not lie from the Common Pleas to the Lords House but must first be brought to the Kings Bench And the Case of the Bishop of Norwich was urged 50. Ed. 3. And it is acknowledged The Lords would not receive that Bishops Complaint but sent him away with that Answer nor could they give him any other For Writs of Error have their Walk and their gradual Proceeding chalked out and setled by several Statutes and by the Common Law of the Land But what doth that signifie against the Judicature of the House of Peers No man saith the Lords can either take Cognisance of Causes or judge Causes against the Law of the Land and take them per saltum when the Law prohibits it But they do say and affirm That by all the Examples and Presidents of former times it hath been the usage of that House to receive Complaints and give remedy in all Cases where the Law hath not expresly otherwise determined and if there be any thing in the Case which merits or requires and needs something above the ordinary Power and Proceeding of the Inferior Courts of Justice to administer that Relief which is just and due As in Cases of difficulty where a Court cannot or of delay where it will not proceed the Lords who have a general inspection into the Administration of the Justice of the Kingdom and into the Proceedings of all other Courts have ever upon Application made to them assumed to themselves the Cognisance of such Causes 14. Ed. 3. Sir John Stanton and his Wife had passed a Fine of certain Lands to Thomas Cranthorn who reverts them back and by that means setled them upon the Wife Sir Jeffry Stanton as next Heir brings his Formedon en le descender in the Common Pleas where after some Proceedings upon a Demurrer in Law Sir Jeffry could not get the Judges to proceed to Judgement Upon which he Petitions the King in Parliament which no man will deny to have been in the House of Peers They examine the Matter And afterward order a Writ under the Great Seal containing the whole Matter to be sent to the Judges there willing them thereby if the Matter so stood to proceed to Judgment without delay They not doing it an Alias is sent And the Judges doing nothing then neither and Sir Jeffrey renewing his Petition The Lords commanded the Clerk of the Parliament Sir Thomas de Drayton to go to Sir John Stoner and the rest of the Judges of the Common Pleas and to require them according to the Plea pleaded to proceed to Judgment or else to come into the House with the whole Record so as in Parliament Judgement might be given for one or the other of the Parties The Judges come at the day and the business was heard and it was adjudged That Sir Jeffrey should recover And a Writ under the Great Seal was sent to the Judges to give Judgment accordingly Here then the King in Parliament that is the House of Peers upon a Petition assumes the Cognisance of a Cause depending in the Court of Common Pleas which was so far from having passed all the formalities below that is to say an Appeal to the Kings Bench and Chancery that it was as yet undetermined in the Common Pleas. Nor did it appear unto them upon what ground it was that the Judges gave not Judgment So they might have answered Sir Jeffrey Stantons Petition with saying that they would first see what the Court would determine and what the Kings Bench afterwards But they apply themselves to give him relief And yet no Votes past against that House for so doing as now hath been in the Case of Skinner against this So in the Parliament of 18. E. 1. p. 16. of the Placita Parlamentaria William de Wasthul complains of Matthew del Exchequer for cosening him upon the levying of a Fine before the Judges of the Common Pleas by procuring an Atturney to slip in other Lands unknown to Wasthul and which be intended not to pass in the Fine This is returned back to those Judges because the Fine had been levied before them Et dictum est iisdem Justiciariis quod Recordum istud in Rotulis suis faciant irrotulare tam super Recordo isto quam super aliis ipsum Matthaeum coram eis contingentibus procedant ad Judicium debitum festinum faciant Justitiae Complementum True the House of Lords is not so bound up to forms but that it may when it thinks good vary and retain a Cause at one time which it will not do at any other time Yet we see they were proper Judges in this Cause for they order Wasthulls Complaint and the Proceedings before them to be entred as a Record in the Common Pleas and those Judges to proceed upon it which if they had not had Cognisance of the Matter had been all Coram non Judice and could have signified nothing And I must observe one thing which I think will not be denyed That all those Placita Parlamentaria whatever is said to be done Coram Rege in Parlamento is to be understood of the House of Peers where the King was in those times commonly present and alwayes understood to be there representatively So as his Name was ever mentioned in the Proceedings even when his Person was absent being sometimes out of the Kingdom sometimes detained away
Johns of Hierusalem sues him in Chancery for the Mannors of Temple-hurst and Temple-newsom which Ed. 3. had granted to John Darcy his Father and produces a Deed shewing that the Priors Predecessor had passed the Fee of them to Ed. 2. The Lords order that Deed to be sent to the Treasurer and Barons of the Exchequer to examine the Kings Title and in the mean time stop Proceedings in Chancery This is more then taking Cognisance of a Matter Originally for they take it out of one Court where it depended and was undetermined and send it to be examined in an other Court which shews the Ascendant they had upon all other Courts 4. R. 2. n. 17. Sir Ralph de Ferriers had been seised by the Duke of Lancaster upon the Marches of Scotland upon suspicion of Treason for holding Intelligence with the French the Kings Enemies upon some Letters of his to several French Lords found and taken up by a Begger He was brought into Parliament before the Lords and put to his Answer He first desired Counsel then offered the Combate against any that would acouse him both were denyed him Then he applyed himself to his Answer And after several dayes hearing the Lords still remanding him to Prison he so well defended himself That the Lords suspected the Letters to be forged and therefore committed the Begger and bayled Sir Ralph delivering him to his Manucaptors 5. R. 2. n. 45. The Chancellor and University of Cambridg Petition against the Major Bayliff and Commonalty of the Town for breaking up their Treasury burning their Charter and by force compelling them to make Releases of some Actions they had brought against the Town and enter into Bonds to them for great Summs The Lords direct a Writ to issue out to the Maior and Bayliffs to appear in Person and the Commonalty by Atturney They appear The Chancellor exhibits Articles against them They being asked why their Liberties should not be seised plead to the Jurisdiction that the Court ought not to have cognisance of them They are told Judgment should be given if they would not answer Then they answer and the business is heard The Townsmen are ordered to deliver up those Deeds forced from the University which are presently cancelled The Town Liberties are seised into the Kings hands and part of them granted to the University Some are granted back to the Town for which they were to pay an increase of Rent Note here is a Plea to the Jurisdiction and that Plea Overruled 8. R. 2. n. 12. The Earl of Oxford complains of Walter Sibell of London for a Slander in having to the Duke of Lancaster and other Noble-men accused him of Maintenance The Lords hear the business Commit Sibell to Prison and give 500 Marks dammages to the Earl 9. R. 2. n. 13. The Case of the Duke of Lancaster complaining That Sir John Stanley had entred upon the Mannor of Latham which held of him and had not sued out his Livery in his Court of Chancery The Lords order him to sue out his Livery But this hath been already mentioned 15. R. 2. n. 16. The Prior of Holland in Lancashire complains of a Riot committed by Henry Trebble John Greenbow and others and of an Entry made by them into the Parsonage of Whit wick in Leicestershire John Ellingham the Serjeant at Arms is sent for them who brings them into the Parliament The Lords commit them to the Fleet. N. 17. The Abbot of St. Oseches complaineth of John Rokell for Embracery This Case hath been already cited N. 18. Sir William Bryan had procured a Bull directed to the two Archbishops to excommunicate some that had broken up his House and carried away Writings This was read in Parliament and adjudged to be prejudicial to the King and to be in Derogation of the Laws for which he is committed to the Tower N. 20. Thomas Harding accuseth Sir John Sutton and Sir Richard Sutton and layeth to their charge that by their Conspiracy he had been kept Prisoner in the Fleet Upon hearing of both Parties for that the two Knights were known to be men of good Fame The Lords adjudge him to the Fleet. N. 21. John Shad well complains against the Archbishop of Canterbury for excommunicating him and his Neighbors wrongfully for a Temporal Cause appertaining to the Crown and to the Laws of the Land The Lords hear the business find the Suggestions untrue and commit him to the Fleet. 1 H. 4. n. 93. Sir William Richill one of the Justices of the Common-Pleas who by express Order of Ri. 2. went to Calais and took the Examination and Confession of the Duke of Gloucester after murdered by Hall was brought a Prisoner into the Lords House the King present and by Sir Walter Clopton Chief Justice apposed And answered so fully shewing his sincere dealing that the Lords one by one declared him innocent And Sir Walter Clopton pronounced him such 4 H. 4. n. 21. The Case of Pontingdon and Sir Philip Courtney where the Lords direct the Tryal appointing what the Issue shall be and what kind of Jury shall be impannelled to prevent Sir Philip 's practices in the Country It hath been cited before at large 1. E. 4. m. 6. n. 16. The Tenants of the Mannor of East-Maine belonging to the Bishop of Winchester the King being in his Progress in Hampshire in the Summer-time complained to him of their Bishop for raising new Customs among them and not suffering them to enjoy their Old ones The King bids them come to Parliament in Winter and they should be relieved They come and the King recommends their business to the Lords They commit it to certain Justices to examine Upon their Report and upon mature Deliberation it was adjudged That the Tenants were in fault That they complained without cause and they were ordered to continue their said Customs and Services Here observe there was the recommendation of the King in the Case just as now in Skinners and this difference that a question of Custom betwixt Lord and Tenants was properly determinable by the Common Law and a Jury of the Visenage and this of a Trespass in the Indies to be punished in Parliament or no where which justifies the Proceedings there 43. Eliz. the 18th of December A Complaint was made to the Lords by the Company of Painters against the Company of Plaisterers for wrong done them in using some part of their Trade Their Lordships referred it to the Lord Maior and Recorder of London to be heard examined adjudged and ordered by them Which was all one as if they had done it themselves For it was done by their Authority and by their Order Qui facit per alium facit perse 18. Jac. The Lords took notice of the Proceeding of the House of Commons in the Case of one Flood whom they had convented before them for insolent and scandalous words spoken by him against the Prince and Princess Palatine examined Witnesses and given Judgment in the Cause
which they look'd upon as deeply trenching upon the Priviledges of their House all Judgments properly and solely belonging to them Thereupon they sent a Message to the House of Commons and desired a Conference At which Conference the Commons confessed That out of their Zeal they had censured Flood But they left him now to their Lordships and hoped their Lordships would censure him In order to which they sent up a Trunk of Writings concerning his Case Then the Lords proceeded to the hearing of it examined several Witnesses and heard all Flood could say for himself which done they adjudged him Not to bear longer the Arms of a Gentleman To ride with his face to the Horse tayl to stand upon the Pillory with his Ears nailed to be whipped at a Carts tayl to be fined Five thousand pounds and to be imprisoned in Newgate during life 21. Jac. Thomas Morley was convented before the Lords for delivering a Scandalous Petition to the House of Commons as himself affirmed against the Lord-Keeper Coventry Upon examination it appeared that it had not been presented to the House of Commons only to their Committee of Grievances that he had published very many Copies of it even since his being convented before their Lordships They adjudge him to be imprisoned in the Fleet to pay 1000 l Fine to stand with his neck in the Pillory to make his Submission and Acknowledgment at the Barr. 22 Jac. Mary Brocas petitioned the Lords to be relieved for a Debt of 1000 l due unto her by Bond from the Muscovia Company Upon hearing both sides their Lordships order the Company to pay the Debt with 5 l per cent Interest out of the Leviations which the said Company had made among themselves for the payment of their Debts The same Parliament May 28. Thomas Pynckney petitions the House in the behalf of himself and other Creditors of Sir John Kennedy to be relieved for Debts owing to them from Sir John by the sale of Barn-Elms Lands in the possession of his Heir John Kennedy The Lords upon examination of the business find cause and so they order it That Barn Elms should be sold to the best value and the Profits to be sequestred in the mean time into indifferent hands And that a Recognizance of 2000 l in which Pinckney stood bound in Chancery should be withdrawn and cancelled The same Parliament again Grizell Rogers Widow petitions the Lords for the setling her Title to certain Lands in Heygrove in the County of Somerset and for quieting and ending divers Suits and Differences between her and Sir Arthur Ingram Sir William Whitmore c. They order her Satisfaction out of particular Lands And all Suits to cease between them And appointed Releases of all differences on both sides to be drawn and sealed 4. Car. 31. Jan. The Lords Committees for Petitions make report to the House of a Petition of Benjamin Crokey against John Smith in behalf of a Grammar-School at Wotton-Underedge in the County of Glocester which School was endowed with great Possessions by the Widow of the Lord Berkly in Richard the 2 ds time which were now much abated and brought to an undervalue by the cunning practices of the said Smith Upon which the Lords awarded a Commission to issue out of the Chancery to survey all the said Lands And ordered also a special Habeas Corpus to be directed to the Warden of the Fleet where Crokey was a Prisoner to bring the Body of the said Crokey before the Lord-Keeper to the intent he might attend the said Commission And ordered further That if Crokey did make it appear the value of the Lands to be so as be said and that to be approved by the Lords Committees for Petitions then Smith to repay to the said Crokey such Charges as he shall disburse in the Prosecution In the Parliament of 1640 Decemb. 16. Upon report from the Lords Committees for Petitions That Mistris James complained against Sir Edmond Sawyer for sheltring himself under a Royal Protection which he had procured by which means she could not sue him upon a Bond of 500 l for so much Money borrowed of her and two years Interest and so was debarred from helping her self by any Legal course The Lords ordered that the said Mris James should proceed against the said Sir Edmond Sawyer for the recovering of her Debt in any Court where she thought best notwithstanding his Protection December 21. The Lords Committees report a Petition of Katherine Hadley complaining that she had been kept a long time a Prisoner in the Common-Gaol in the Old Bridewell without any cause shewn the Lords ordered her Release The 22th of Decemb. Upon a Report from the Lords Committees of Sir Robert Howard's Case complaining that he had been committed Close-Prisoner to the Fleet by the High Commission Court and kept there three months till he was fain for his enlargement to enter into several Bonds with Sureties in the sum of 3500 l For which he desired Reparations and his Bonds to be cancelled The parties interessed were summoned and heard And after due consideration the Lords ordered a thousand pound damages to Sir Robert Howard of which 500 l to be paid by the Archbishop of Canterbury 250 l by Sir Hen. Martin and 250 l by Sir John Lambe the Bonds to be forthwith cancelled and delivered to Sir Robert Howard The 23d of Decemb. They reported the Case of William Dudley that he having arrested the Lord Wentworth son to the Earl of Cleveland for a Debt of 400 l entred a Caution in Mr. Justice Bartley's Chamber for good Bayl to be taken yet Justice Bartley had released the said Lo. Wentworth upon such Bayl as the said Dudley was utterly disabled to recover his debt Justice Bartley being called made no good Answer thereunto The Lords thereupon order that the said Justice Bertley should forthwith assure unto the said Dudley his House and Land near Barnet for securing the said Debt with Interest and Damages The same day they report likewise the Case of Mris Mary Stanhope Widow Daughter-in-law to the Earl of Chesterfield complaining that the said Earle refused to assure unto her 40 l per Annum during her Widowhood according to a former Agreement made between them which appeared to be true by a Letter produced under the Earl's hand And his counsel being heard and no good cause shewn why the Petitioner should not be relieved The Lords ordered the Earl of Chesterfield forthwith to assure to the said Mris Mary Stanhope his Daughter-in-law 40 l per Annum during her Widdowhood and to pay unto her such money as was in arrear of the 40 l per Annum due to her for the space of two years The 30th of December the Lords Committees for examining Abuses in Courts of Justice report the Complain●… of John Turner a Prisoner in the Gate-house committed thither by the High-Commission Court where he had lain fourteen years for refusing to take the Oath Ex
from the Ships worth and other particulars in a Schedule would have rendred alone above 20000 l sterling yearly Yet I submit that and my whole Sufferings and Concerns to your Lordships Determination in hopes That if I do not receive an adequate Recompence yet I shall by his Majesties Grace and your Lordships direction be enabled by the restoring of my Island Barella in India to reap a future benefit without the East India Companies further molestation or interruption His Majesties late Charter granted the third of April 1661. prohibiting the Company expresly to undertake any thing against any Christian Colonie setled in India before the date thereof October the 6. 1666. Signed Thomas Skinner THe Lords Referrees finding this vast disproportion between the demands and Pretences of the Petitioner and the real loss and damage which he had sustained and the Offers on the other Side of the Company for his Reparation and Satisfaction and seeing no possibility of reconciling them though much pains had been taken in endeavouring it at last resolved to report it back to the King and Councel and made their Report as followeth IN pursuance of his Majesties Order in Councel dated the three and twentieth of March last we have treated with the Governor and Company of Merchants trading into the East Indies and have heard the Councel both of the said Company and Thomas Skinner Complainant in the disquisition whereof we found the said Thomas Skinner to have suffered much wrong by the said Company and their Agents and therefore endeavoured to perswade the said Company to give satisfaction to the Petitioner but there being a great difference between the Petitioners Demands of Reparation for Damages and the Companies Offer towards the same our Mediation proved ineffectual therein As to the Island of Barella in the East-Indies claimed by the said Thomas Skinner We conceive that he ought to enjoy the same and from thence to trade into any part of the world except into England Given under Our Hands the sixth day of December 1666. Signed Gilb. Cant. Clarendon C. J. Roberts Ashley HIs Majestie upon this finding the East-India Company would be brought to no reason thought fit to recommend the business to the House of Peers to do the Petitioner Justice according to the merits of his Cause which Message was brought to the House the 19. of January 1666 by the Lord Privy Seal and all the Proceedings in Councel transmitted thither and withall a Petition from Skinner himself was presented to them setting forth the wrongs done to him by the East-India Company The House of Peers thus possessed of this business Order a Copy of Skinners Petition to be given to the Governor and Company and they to bring in their Answer to it upon Friday the 28 of January They accordingly bring in for Answer a Plea to the Jurisdiction of the House of Lords and say That the Petition is in the Nature of an Original complaint not brought by way of Appeal Bill of Review or Writ of Error nor intermixed with Priviledge of Parliament nor having Reference to any Judgement of that Court therefore offer If it will please to take any further Cognizance of that Cause And then plead over and say That the Company was incorporated by several Charters in the Reignes of Queen Elizabeth and King James and likewise by a Charter from Oliver which excluded all others not Members of the Corporation from trading in any part of the East-Indies within the limits of the said Charter and that therefore if any such Injuries were done it was by vertue of the Charter and whether Criminal or Civil they were for ever released and discharged by the Act of Oblivion The Lords upon debate of this Plea well knowing their own Right to retain even Original causes when accompanied with such Circumstances as this then before them had A poor man oppressed by potent Adversaries by a rich and numerous Society where there was a Peer of the Realm the Lord Berckley of Berckley Gentlemen of great Estates very many wealthy Merchants incorporated in one body driving on a great trade in the Indies with one joynt stock resolved to imploy that whole stock for the destruction of any man that should presume but to touch upon that trade without their leaves which was this poor mans Case in a time when he had been encouraged thereunto by a general Liberty then taken to trade in that Country who after the spoyle of his goods and Plantation there to save his life they having beset his passage by Sea was glad to expose himself to the hazard and charge of a Journey of many thousand Miles over Land to return into England that he might here endeavor to get some reparation for all those losses which that Company with their great purse and power opposed and had already made him spend that little Estate he had left and seven years attendance to prosecute that reparation without any fruite So as to go to Law with them and abide all the delayes and formalities even of the ordinary Proceedings at Law much less what such Adversaries would have raised to him he was no waies able The Lords I say knowing all this and that what was pretended of the Indemnity by the Act of Oblivion was of no validity that Act not at all intended for things of this nature betwixt party and party not relating to the Warr made no difficulty to over-rule their Plea and enter into the disquisition of the Fact and to do the poor man Justice and give Releife if they found cause for it as a work worthy of them much conducing to the administration of the publick Justice of the Kingdome and most agreable to the constant practice of that House from the very beginning of Parliaments Wherefore they appointed Tuesday the 24 of January for the Counsel of both sides to be heard at the Barr. But such art was used so many delayes cast in by the Company and their Counsel as the cause could not be brought to hearing during all that Session of Parliament At the next meeting of the Parliament in the year 1667. Skinner renued his suit and presented a Petition the 30. day of October In haec verba TO THE RIGHT HONOURABLE c. The Humble Petition c. THat in the year 1657. Private Trade being open in the East-Indies the Petitioner set forth his ship Thomas on a trading voyage to the said Indies where being arrived in 1658 he possessed himself of a Ware-house on the River side of Jamby on which his ship rode wherein he put a great part of his goods and also had a house at Jamby and goods therein and purchased of the King of Jamby the Island of Barella and built a house for habitation and had contracted for planting of Pepper and other Commodities thereon That in May 1659. the Agents of the Governour and the Company of Merchants of London trading into the East-Indies by direction of the said Governour
and Company and of Maurice Tompson and Sir Andrew Riccard seeing the Petitioners hopeful designe in his Plantation and way of trade with his Ship did seize for and on the behalf of the said Governour and Company his said Ship goods houses Istands and 1521 Dollars of the Petitioners in the hands of Thomas Leaver the Companies Chief Agent at Jamby which hath damaged him 17172 l Sterling besides the disappointment of his trade disseizin of his said Island loss of above six years time with attendance and vast charges here in endeavors for a just satisfaction c. being much more valuable then all the other damages And the said Agents used many violences upon his person in the said Indies notwithstanding that the Petitioner proffered Bail and good Security there to answer all their pretences which inhumane and unreasonable dealing forced the Petitioner through infinite hazards and expence to come most over Land for England to seek redress That in the year 1661 and continually since he hath humbly besought his Majesty for Justice against the said Governour and Company and persons aforesaid and though his Majesty hath been graciously pleased to convene the said Company and Persons and to hear the said Matters and also to referre it divers times to several Lords of his Majesties most Honourable Privy Councel to hear them and mediate an End yet they could not be reduced to Reason nor Justice albeit the Petitioners Wrongs and Damages were made to appear as well by their own acknowledgement as other evidence produced before the Lords Referrees but endeavoured by the strength of their Joynt-Purse to bear down the Petitioners Relief though never so just by wearying him from further Prosecution That the Petitioners whole Case not being remediable by the Courts below he is constrained humbly to address himself to your Lordships his Majesties great Councel and Supreme Judicature whom the Petitioner most humbly petitioned the last Sessions and your Lordships were pleased to order their Attendance but by their Dilatory Pleas and several non-attendances upon slight excuses at the day appointed by your Lordships they frustrated the Petitioner of obtaining your Lordships Justice that Session Wherefore he most humbly prayes That your Lordships will be pleased to cause the said Governour and Company and persons aforesaid to answer the premisses before your Lordships by a short day and that he may receive from your Lordships such Relief as shall be consistent with Justice and Equity And he shall pray c. Signed Thomas Skinner The Lords upon this order the Company to put in their Answer in Writing upon Wednesday the 6 th of November They bring in a Plea as before First by way of Protestation That all the Injuries supposed to be commited by them and their Factors are untrue Then plead as formerly That the Petition is in the Nature of an Original Complaint not brought by way of appeal c. as in their Plea of the last Session but add And therefore these Respondents do humbly demand the Judgement of this honourable Court whither it will please to take any other or further Cognizance of the same the rather because the matters of Complaint in the Petition are such for which remedy is ordinarily given in the Courts of Westminster-Hall wherein these Respondents have Right to be tried and ought not to be brought hither per saltum nor drawn ad aliud examen and so pray to be dismissed The Lords having received this Plea to shew the clearness of their Intentions and their tenderness of doing any thing which might but carry a Semblance That they desired to engross to themselves the judging of particular Causes when determinable elsewhere and nothing extraordinary in the Case to induce their Lordships to take Cognizance of the Matter which apparently was in this Case of Skinners as hath been said before would have the Opinion of all the Judges before they proceeded any further And therefore made an Order Monday the 2 d. of December That it be referred to all the Judges to consider of Skinners Petition and to Report to the House upon the Wednesday following whether the Petitioner were relievable upon the matters therein mentioned in Law or Equity and if so in what manner upon the several parts of the Complaints of the said Petition The day appointed the Judges came and the Lord Chief Justice of the Kings Bench reported That all the Judges had considered of the Matter referred to them and having met and considered thereof were of Opinion That the Matters touching the taking away of the Petitioners Ship and Goods and assaulting of his Person notwithstanding the same were done beyond the Seas might be determined in his Majesties Ordinary Courts at Westminster And as to the dispossessing him of his House and Island That be was not relievable in any ordinary Court of Law Here then clearly by the Judges own Confession part of the Case was not within the Power of Westminster Hall and under favour of better Judgements I think it will be but a venial Sin if notwithstanding this Declaration of our Sages in the Law the Doubt do still remain with us if some of the other points also as that of the taking of his Ship a Robbery committed super altum mare be punishable by the Law of Westminster Hall Nay may not one be bold to affirm That it is not And may it not be doubted further if any part of Skinners Case be tryable there and if their Fiction in Law will reach any part of it being all for Injuries and Violence against his Person and Estate in India We know that some Judges and Lawyers make it to extend to Contracts and Bonds made beyond the Sea which they ground upon a Case in the Year Book of 48 E. 3. fol. 2. where Sir Ralph Pole brings his Action against Sir Richard Tochester upon an Obligation bearing date at Harfleet in Kent Lou de rei veritate I l fust fait en Normandie the Book saith and his Action was held good And Brook who makes it to be at Roan not Harfleet gives the reason in his Abridgement Faits 98. le lieu n'est traversable the place is not traversable which is to be understood when it is expressed in the Bond for a man cannot traverse the place against his own Act. But the Law was ever understood to be otherwise till then that the Judges would ampliare Jurisdictionem And to shew what the Law was before E. 3. it was adjudged Michaelmas 2 E. 2. That no Action would lie for a Bond made at Barwick which did not then belong to England ou cest Court nau ' conisans where the Court hath not cognisance saith Fitzherbert Obligation 15. And so Perkins Faites 121. But both before and since the Courts of Law were so far from punishing Injuries and Trespasses done beyond Sea That even Treason was not tryable till the Statute of 26 H. 8. cap. 13. which saith That if any of the Kings
which not And those Parliaments that the Modus Parliamenti speakes of when a little before the rising of the Parliament Proclamation was made in Publick places to know if any had business to the Parliament if any had Petitioned the Parliament their Petition had not been answered Certainly those Parliaments then did not apprehend to be reproached either with Partiality or deniall of Justice And I would aske this further If they can think that such a Committee of Tryers would have rejected Skinners Petition and have said The Lords can take no Cognizance of your business because it is concerning things done beyond Sea when themselves were a Committee appointed only for such businesses But to let these Sarcasmes pass and see rather what was said and may be said to the more solid objections concerning Magna Charta and those other Statutes which they will have to condemne the Proceedings of the Lords First it may be observed as a thing very strange that in above 400 years since Magna Charta was first made a Law it was never till now found out that the Lords had broken that Law by the exercise of this Jurisdiction nor were they ever charged with it before But besides do they by this any more break it then the Court of Chancery which by a Decree disposes of a mans Lands or the Court of the Constable and Marshall which takes away a mans life or any other Court where the Judge for a Contempt presently sends a man to Prison or claps a Fine on his head so takes both person and Estate or the same House of Lords when it Commits a man upon an Impeachment of the House of Commons Judges and Condemnes him Here is no Judicium Parium that is most certain nor Lex Terrae if you take it for an Original Writ And yet no man will say any of this is contrary to Magna Charta Why then may not the Proceedings of the House of Peers when it punisheth a man for robbing and assaulting his fellow subject in as strange Country which puts the busines out of the Cognizance of the ordinary Courts of Justice receive as favourable a Construction It can not be said that the House of Commons by their taking Cognizance of a Fact by their previous examination of it and declaration upon it giving it the Denomination of Treason or of any other lesser Crime can create a Jurisdiction in the House of Peers which it had not before and give it new power and Authority to pass a condemnation upon the guilty Person yet is it the Ordinary practice of the House of Commons who have a Grand Committee of Grievances for that purpose to impeach men so before the Lords They could receive not long since a Petition of one Taylor complaining against the Lord Mordant for oppression and falss imprisonment and the injurious taking away of an Office from him at Windsor All which were properly tryable in Westminster-Hall yet they could bring this up to the Lords and crave Reparations and Damages in the Name of the Commons of England And the Lords must not though at the Kings recommendation receive a Petition from Skinner and give him relief for his whole Estate by violence and with a strong hand taken from him part at Sea part upon Land in a strange Country in neither of which the Courts of Westminister can afford him any help For this must be against Magna Charta So rather then the Lords shall do it this must be a Failer of Justice in the Land the King shall not be able to protect his subjects the oppressor shall go free and the cry of the oppressed shall go up to heaven for Judgment upon the Land because he finds not Justice in it for his Relief But I remember what the Gentlemen of the House of Commons said at the Conference That therefore the Lords should not have given Relief in this Case because there was no remedy at all at Law This Objection hath been already answered therefore I shall not repeat it here only use one Argument more ad hominum that they forget what themselves have done this very Parliament entertaining a Complaint of one Farmer against the Lord Willoughby who is since dead for dispossessing him of his Estate and other wrongs done him in the Barbadoes which could not be tryed in Westminster-Hall which yet they were preparing to bring up to the Lords by way of Impeachment if the Lord Willoughby had not dyed And there is reason to believe that if Skinner had in the like manner applied himself to them there had been no breach of Magna Charta nor no exceptions taken at the great charge of the Subject appealing to the House of Commons and prosecution there though the charge be every whit as great and becomes much greater to the party that prosecutes for when he hath done there then he must begin again in the House of Lords so the charge is double and the Judgement when it comes is never a whit more in Latin to make it a Record then if the business had begun first in the Lords House as much is it without Jury or Appeal and no less danger of the non-execution of the Judgement after the rising of the Parliament In Fine all that is said against the Lords Proceedings now might as well be said against them then And to say the truth if it be well considered it wil be found that the consequence of this opposition should it work it's effect and prevail would be the overturning of the very foundation of all Authority of Parliament that it might then well be said of the whole Parliament that it did sit only to make Laws and give Subsidies But all this proves not the exercise of the Lords Judicature to be warranted by Magna Charta it only saith that other Courts and the House of Commons it self do as bad Which is no Justification of the Lords For to erre with Company is not to be free from fault Let us then see what may be said to clear them all but principally and Chiefly this Judicature of the House of Peers which is the mark shot at And to do this we must examine the Disjunctive proposition in Magna Charta which saith that every man shal be tryed Per Legale Judicium Parium suorum vel per Legem Terrae For if the Lords judge by either of these they are well enough And Sir Ed. Coke shall determine the question whom no man can suspect of partiality for the House of Lords He tells us in his 2. Inst F. 51. That Lex Terrae is Lex Angliae not Voluntas Regis as the Commons said the Kings Counsel would have it to be 3 Car. And less voluntas Dominorum Fot it is not in an arbitrary way the Lords proceed but according to the Law of the Land to punish nothing but what the Law makes punishable and Judge every thing according to Right secundum aequum et bonum So
of their not Judging Commoners is apparently proved by the constant practice of the House of Peers in all succeeding times And one thing more would be taken notice of in the Proceedings of the House of Peers at that time after their precipitate and Illegal Condemnation of those Persons without ever calling them to answer The Earl of March a Peer of the Realm was condemned and executed as well as the Commoners and this was looked upon as a President of ill Consequence for the Peerage and therefore they would have a Law to prevent it and that the Nobles of the Land should not be put to answer but in open Parliament by their Peers which they long endeavoured before they could obtain it So as in 15. Ed. 3. n. 6. they adjourned the Parliament severall dayes upon that point and at last appointed four Earls four Bishops four Barons to draw it up into form and got it passed into an Act but two years after the King got that Act to be repealed And so far they likewise took care of Commoners in that Parliament of 15. Ed. 3. as to have it enacted also That no man should be impeached by Commandment without process of Law These were Acts of Parliament and Laws which did bind but the other of their judging none but Peers was a meer particular Order of the House an Agreement betwixt the King them which was no wayes binding to posterity and alterable still at pleasure by the same House that made it Another Battery raised by that Author against the Jurisdiction of the House of Peers is from the Statute of Appeals 1 H. 4. c. 14. And with that he would overthrow the force of that President of John Hall condemned by the Lords in that first year of H. 4. for the death of the Duke of Glocester in the 21 of R. 2. as if that power were now taken from them by that Act and that the Commons by it had taken care it should not be so done by them any more for so he saith p. 23. Which by his leave concerns nothing the proceedings against Hall and will less I may say concern the present question of the proceedings of this House of Lords in the Case of Skinner For that Statute provides only for Tryall of Appeals where a private person next of kin is or shall be prosecutor which was not in Halls Case the prosecution being in the ordinary way at the Kings suit It is true that in the 21 of R. 2. an horrible abuse had been in point of Appeals Certain Lords not by Law capable of it taking upon them to be Appellants and in their own Names acousing in Parliament several persons Peers of the Realm and Commoners of divers Treasons and Murthers making themselves Judges and Parties and condemning them to die without nay against all forms of Law rules of Justice by which means many innocent men lost both lives and Estates This it is that is provided for by that Statute and care taken it shall be so no more not the Ordinary prosecution of Offenders in the Kings Name as Halls was Though one particular in that Tryal is confessed to have been most Irregular and Illegal which was examining him against himself upon Oath but that is not material to the point in question which is Whether the Statute of Appeals forbids such Tryals as assuredly it doth not nor any of those formerly instanced in to have past in the House of Peers And least of all can it concern the late Proceedings in the business of Skinner and the East India Company in which there is no charge either of Treason or Felony where an Appeal onely can take place to bring it within that Statute In the same 23d page an other Argument is used against this Jurisdiction of the Peers in which that Author hath certainly missed his Mark for nothing could be produced that makes more for that Jurisdiction He saith That the Subject of England hath moderated Parlaments and by express words determined that some things cannot be done in Parliament as that any should be impeached there of that concerns his Francktenement or Hereditament and vouches for his Authority Rot. Parl. 10. H. 6. n. 35. where indeed there is such a desire of the House of Commons That none shall be compelled to answer in Parliament concerning his Francktenement But let him tell us how they sped with their desire if their Petition was granted to make it a Law and binding Far from it The Answer is Le Roy saduisera The King will advise which in Parliamentary Language is a flat Denyal So then no alteration was made of what was formerly the Usage and Power of Parliament but all continued as it was before And that before they did in Parliament try and judge such matters is apparent by the desire of the Commons that it should not be so hereafter for if no such thing was their desire it should be no more so was ridiculous but it was so it seems and their desire that it should be altered being rejected leaves it in the same state it was that the Parliament might continue still to do it And by the Parliament in these Cases is to be understood onely the House of Peers for there singly lies the Judicial Power as is confessed and acknowledged by the House of Commons themselves 1. H. 4. n. 79. so it is in the Record but in the Exact Abridgment it is n. 80. That all Judgments appertain to the King and Lords and not to them but when out of especial grace some are communicated unto them and therefore they there desire that the Records may be so entred as they may not be made Parties to them So careful they were then not to seem to encroach upon that Power And whereas the Author of that Pamphlet would make a difference upon the Personal presence of the King in those times in the House of Lords That though they might do it then in some Cases it followed not the Lords might do it alone the King not there it is but a fancy of his making a difference where in truth there is none I have proved it before that the Court is the same be the King present or absent The King in Person can judge no man nor dispose of no mans Life or Estate therefore it is a Maxim That the King can do no wrong the reason is because he of himself and by his own particular and personal Authority can give away no mans Right no not any ones pretended Right where a man hath only a possession though without right the King alone in propria Persona can give no Rule in it but it must be tryed in one of his Courts And his Judges and Ministers whom he intrusts with his Regal Power that with which he is himself invested in his Politick Capacity and which he conveys to them making them thereby the Dispensers of his Royal Justice unto all his Subjects they must be
the Persons that do the wrong if any be done It is Curia Regis that doth it and not the King though he sit in Court in Person And so the stile is Videtur Curioe And the Pleas Commonly end with this Declaration of the Party Hoc paratus sum Verificare pro at Curia ordinaverit and when mention is of any thing done contrary to the formes of proceeding Non sic in Curia ista usitatum est is the expression as it is in the President of the 18. E. 1. so much insisted upon by the House of Commons So hath it been in all times the Authority of the Court to which the Law requires obedience When Henry the third would have his Brother Richard Duke of Cornewall confirm the grant of a Mannor to one Waleran a Germain to whom King John had given it and which the Duke of Cornwall said belonged to his Dutchy of Cornwall and had therefore taken possession of it his Answer was That he was willing Curioe Regioe subire Judicium Magnatum Regni that was to say the Judgment of his Peers in Parliament and when the King said angrily to him He should then quit the Kingdom it he would not deliver up the Mannor his reply as Matthew Paris Records it was Quod nec Walerano Jus suum redderet nec sine Judicio Parium fourum e Regno exiret He would neither quit his Right nor the Kingdom but by the Judgement of his Peers Such difference was then made betwixt the Kings Personal Command and an Order of the House of Peers in disposing of mens Rights which makes it very apparent That the Kings Personal presence could not add any thing to or make any alteration in the Jurisdiction of any Court. But enough of this especially considering what is said before upon the same Subject Some other Evasions I find in that Book to elude the Lords Judicature and take off the force of some Presidents which have been cited in maintenance of it which I think are but evasions and work no great effect As that of the Banishment of Alice Perrers or Pierce which that Author will prove to have risen from the Commons and to have been at their Petition because Walsingham a Cloistered Monk saith so contrary to the Record in the Tower where he finds no such thing where certainly it would not have been omitted had it been so that being so essential a part of a Transaction of Parlament that it could not have been left out by the Clerk in the Journal Book And whereas to fortifie Walsingham's Testimony he saith he then lived as if he had been Testis Ocularis I doubt much if he was then born or so young he must have been that he could little take notice of the passages of the time for Baloeus in his Book De Scriptoribus Britanicis saith he flourished in the year 1440. under Henry the sixth when he died we know not but had he died then or soon after he must have been sixty three years old if so be he was in the World when Alice Pierce was banished for the Judgement of Alice Pierce was the first year of Richard the second which was in 1377. So as what he writes could be but by hearsay Which is observed by me onely to shew what weak proofs that Author brings to make good his Assertions and shews the badness of his Cause Not that I think it at all material to the point in question whether or no it was at the request of the Commons that Alice Pierce was judged by the Lords which would not at all evince what he would infer upon it that the House of Lords hath not of it self Cognisance of the Cause of a Commoner nor can judge him for an Offence whether Capital or of a lesser Nature but that the House of Commons making it their desire qualifies them for it Which is a strong Argument of the contrary and proves that the House of Commons doth thereby acknowledge their Judicature For ridiculous it were to think That any Act of that House could create a new Power in the House of Lords which it had not in it self before and which afterwards must cease till it please the House of Commons to give again a new life and being to it As if the House of Lords were but a Property which cannot move of it self to have the Verse said of it Ducitur ut nervis alienis mobile lignum I am sure it hath not been so heretofore nor do I think the House of Commons will own that Authors Opinion And so the Judgment of Hall for the death of the Duke of Glocester that too forsooth must be at the request of the Commons and so be an Act of Parliament and the proof for it is that at the end of the Roll they thank the King for his just Judgment But if the Gentleman would have perused the whole Roll he would easily have been satisfied that the thanks of the Commons related not to Halls condemnation but to the proceedings of the King and House of Peers against Sir William le Scroop Sir Henry Green and Sir John Bussy who had been active for Richard the second and were looked upon as principal Authors of the Miscarriage of his Reign For at the request of the Commons the Lords confirmed a Judgment formerly given against them in some of the Kings Courts not in Parliament and the King declaring That though he took the forfeiture of their Estates according to the Sentence given upon them yet he understood not there should be by it any Infringement of the Statute which said That no mans Estate should be forfeited after his death who had not been convicted whilst living for these persons he said had been so convicted Whereupon the Commons thanked the King for his righteous Judgment and thanked God for giving them such a King This had no relation at all to the business of Hall And in the Record it is an Article by it self of what had passed in Parliament another day So for the proceeding against Gomeniz and Weston that too must be at the request of the Commons and consequently an Act of Parliament Whereas the Commons had onely in general desired that all such as had delivered up any of the Kings Forts and Castles unduely might be called to account for it in that Parliament and be punished for it according to their demerit by the Judgment of the Lords who thereupon commanded the Lievtenant of the Tower to bring before them those two who were already in hold for their several Facts in that kind whom they tryed and condemned and proceeded likewise against several others as Cressingham Spikesworth Trevit and many more guilty of the same Crime whom they convented before them and Sentenced some to death some to other punishments according to the Quality of their Offence Now I do ask if in common sence it can be construed that the Commons were at all Parties in the prosecution
formerly given by the Lords Temporal alone with the Kings Assent is fully ratified and confirmed Which is as strong an Argument to evince and prove the Right of Judicature lodged in that House as is possible And so I shall leave that Pamphleter and now conclude only adding this as mine own sense and wish concerning the Lords exercising this Judicature and in truth what hath been my Observation of their Lordships own Intention and Resolution which themselves have still declared and practised in their execution of it which is this First That though they have an undoubted Right to such an universal unlimited Power of taking cognisance of all Manner of Causes of what nature soever and of the Judging and Determining them if no particular Law do otherwise dispose of those Cases Secondly That their Ancestors have so exercised this Power in all times Ancient and Modern which conveys down that Right to them according to the Maxim usus Consuetudo est Lex Parlamenti what hath been alwayes used by Parliaments is the Law of Parliaments Thirdly That this House of Lords hath ever been careful not to entertain any business which was determinable in Inferior Courts so as charged with doing it they may well take up the Psalmists complaint and say They have laid to our charge things that we knew not and would have us restore what we took not away Though if the Lords had now taken upon them to exercise such an universal Power of Judicature they had medled but with their own that which belongs to them and had done no man wrong had given no just cause of complaint they had but troden in their Ancestors steps continued that in the House of Peers which it hath ever been possessed of And would it not be a shame for them to leave their Posterity in a lower and more curtalled condition then their Predecessors left them to give up a Right and a Priviledge o● theirs which as hath been shewed i● so necessary to the Publick Justic● of the Kingdom But they have no● done that which is said of them An● there is no colour for any complaint Why then quarrel with them Why at this time stir a question which lay asleep and for ought we know had never awaked not had else ever been stirred Is this a time to divide to cause needless differences Were it not more desirable nay more necessary to reconcile affections to unite endeavours and to conjoyn the Counsels and Power and Authority of the two Houses of Parliament for composing the differences which already are rather then to create new and especially when no cause is given for it For it may be truly said Here is not Causa litigandi if there be not Animus litigandi Let it be calmly and coolely considered what the Lords have done if they have given any cause of difference if this Apple of Dissention grew with them which hath been maliciously cast in by some of the East India Company and too readily taken up by those whom they had surprised and abused by misinformations Their Lordships have now only done Right to a poor man that was oppressed to ruine by potent Adversaries who had done the wrong in a Forreign Countrey and so were no wayes punishable for it here in the ordinary Course of Law nor the poor man any wayes relievable for no part of his Case as hath been shewed was within the Compass of the Common Law Their new devise of a Fiction which is in truth meerly a Fiction in the whole of it without any real foundation in Law Reason or good Conscience as being grounded upon a falshood and yet this Fiction I say such as it is not applicable to Trespasses so as here had been an absolute Failer of Justice if the Lords had not undertaken it And they undertaking it also not of themselves as making it their own Act but upon the Kings earnest Recommendation when his Majesty and Counsel had in vain spent some years in endeavouring to perswade those severe Adversaries of this poor man to make him some reasonable Reparation and they would not Fourthly And notwithstanding all this that their Lordships should be quarrelled with decried misrepresented by Offenders whom they had before them and that even before they had determined any thing concerning them yet the Petition of those Offenders full of Falsities not onely to be received which under Correction and with great respect be it spoken of them who did receive it was a Manifest Breach of Priviledge but to be believed and Votes to be passed thereupon That the Lords had done that which was not agreeable to Law and which tended to deprive the Subject of the benefit of the Law Fifthly Though these things might well provoke their Lordships to vindicate themselves not only by asserting their Right to so great and extensive a Power which they have done upon good grounds and with evincing Argaments but even employing and exercising it in its full latitude And the same Maxim would justifie them in their so doing which the Poet brought to justifie Caesar in his vast undertakings when the Senate by denying him his just demands gave him the occasion and the boldness to make himself Master of all take that which was denied him and all the rest which happily he had else never attempted the Maxim is Omnia dat qui justa negat So quarrelling with the Lords now upon so unjust a ground and denying them such an apparent Right as they had to give Relief to Skinner would plead their excuse to all the World if they should extend their Power as far as their Ancestors ever did But we will hope better things from them and that as the Apostle saith their Moderation shall appear to all men and that no ill usage will make them depart from their resolution of not interposing their Power where the Law can give a remedy nor entertaining any Cause which is properly determinable in Inferior Courts For that certainly however it might be Lawful would not be expedient and good men will onely do that which is expedient as being that which is most acceptable to God and most beneficial to men which Parliaments will I hope ever do It shall be my Prayer they may to which I am sure all good people will say Amen FINIS