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land_n	country_n	england_n	great_a	1,515	5	2.7980	3	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
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

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

it is but seemingly as will be shewed upon the Examination of the Presidents themselves Whereas multitudes were produced of the exercise of their Jurisdiction and some Where the parties had desired a try all at common Law and the Lords would not grant it as that of William Paynell and Margaret his Wife in the Placita Parliamentaria of the 30 of Ed. 1. p. 231. The Case was this Margaret had been formerly the Wife of John Cameys and he yet living bad left him as she alledged with his consent and lived with Paynell as his Wife and was married to him Cameys dying Paynell and she sue for the Thirds of the Mannor of Torpell which had been the Land of Cameys It was objected on the other side That she lived in Adultery with Paynell in Cameys life time and so had forfeited her Dower They upon that desire to be tryed by their Country if Adultery or no What say the House of Peers Do they send them into the Country as is desired No Videtur Curiae quod non est necesse contra tantas tamque manifestas Evidentias Praesumptiones Probationes c. ad aliquam Inquisitionem Patriae Capiendam procedere c. Et ideo consideratum est quod praedicti Willielmus Margareta nihil Capiant per Petitionem suam sed sint in Misericordia pro falso Clamore c. This shewes that the Lords some times would retain Causes though sometimes they did dismisse them not for want of Jurisdiction but as it seemed to them convenient and their Occasions would give leave as they had or had not leasure for it from the greater Affaires of the Kingdome or that some Circumstances in the merits of a Causemade it more or less worthy of their Consideration As if one of the parties was powerfull in his Country and suspected to have an Influence upon the Juries the Lords would then some times retain a business and determine it themselves As in 3 R. 2. N. 24. The Case of John Earl of Pembro●k and William le Zouch Complaining that they were sued for certain Lands in York-shire by Thomas the Sonne of Sir Robert Roos of Ingmanthorp and alledge That the said Thomas sought to come to a tryall in the Country which he had gained and corrupted And therefore pray for redress and a tryall by Parliament giving this reason for it Que Ils par tels Malveis Compassemens et Procuremens en pais ne soient desheritez That they may not lose their inheritance by such wicked contrivances and practises in the Country Do the Lords then suffer it to go on to tryall in the Country No They take the matter into their own hands appoint John Knevet and John Cavendish Chief Justice and John Belknap Chief Justice of the Common Pleas to examine it and make Report to them which they did And so likewise in the Case of Pontyngdon and Courtney 4 H. 4. N. 21. Sir Phillip Courtney a great man in the Country oppresses Pontyngdon dispossesses him of his Land by force he comes to the Lords praies Pur Dieu Et en oeuure de Charite d'ordeigner remedies en cell Cas For Gods sake and as a work of charity that they would give remedy in this case Setts forth in his Petition that he had before in a Parliament held at Winchester made his complaint at which time Sir Phillip laid the Bastardy of his Father as a Barr and that the Lords Answer then was That he should have right done him and committed the business to the Arch-Bishop of Canterbury to take care of it That before the Arch-Bishop Sir Phillip and he agreed to go to a tryall upon that Issue and that there should be a sufficient Jury of the principal Knights and Esquires of the Country But that Sir Phillip had named some of those principal men and withall poor men of less sufficiency to the intent that the great men making default the poor should stand and that these poor men durst not against Sir Phillip maintain the truth les queux poures hommes n'oisent envers le dit Sir Phillip la verite dire That thereupon he Petitioned again the Lords in the next Parliament sitting at Westminster and informed them of all these Particulars whereupon they Ordered a Writ to go to the Judges of Assize of that Country commanding them to admit none to be of the Jury but such as had 40 l a year Land and those to be chosen out of the whole Country notwithstanding any usage or Challenge to the Contrary But that now Sir Phillip finding that the charge of Bastardy would not hold contriving still the wrongful disinherison of the Petitioner had started a release unduely gotten from one Thomas Pontyngdon a Parson whose heirethe Petitioner is And the Petitioner is thereby like to be ruined si il neit vostre tres Hautissime et tres excellent secours et aide if the Lords would not afford him their most High and excellent succour and help This was the effect of the Petition The Lords upon this make an Order to direct the tryall the Point in Issue to be the Bastardy that the Release should be laid aside as null and void that if the Bastardy be proved Pontyngdon shall be for ever barred to sue hereafter and if not proved but that his Father was Mulier he should then recover the Land with Costs and damages And they further Order a Writ to the Sheriff to Impannell none of the Jury that had not 40 l per annum Land So then three several times in three several Parliaments did the Lords take Cognizance of this Cause being a Common Plea for a mans Free-hold and that Originally in the first Instance not upon an appeal or Writ of Error or any of those waies to which the House of Commons would now limit them They direct the tryall the Issue the Condition and Qualification of the Jury and the Judgment and if this be not taking Cognizance of a Cause I know not what is And well was it for that poor Gentleman That the Lords had that Jurisdiction that they could take Cognizance of his Cause to give him relief then As now it was well for Skinner That the Lords took Cognizance of his Otherwise this powerfull Company had trampled him in the dirt and ruined him as that violent man Sir Phillip Courtney for so he appears to have been by several Complaints against him in the Parliaments of those times had served Pontyngdon And well will it still be for many a poor man to have such an Asylum such a City of refuge to fly unto to save himself from the violence and Oppression of power and greatness And perhaps some of those who now endeavour to lay low the House of Peers who would make it to be of no signification to have no power no Influence upon the Kingdome be as salt that hath lost its Savor only Magni Nominis Umbra a Name of Peerage without ability to help themselves or

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.

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