that Judgment 21 H. 6. against Sir Jo. Mortymer upon an Indictment of Escape out of Prison being committed upon suspition of Treason the said Mortymer's Answer is not recorded yet it is said he was brought before the Lords and the said Indictment read in his presence that he made an Answer unto it though not mentioned And this proves that the Party is to be brought to his Answer else Mortymer's presence had not been necessary Anno 7 R. 2. Numb 2. The Duke of Lancaster and Gloucester complained to the King That Sir Tho. Talbot with others conspired the Death of the said two Dukes and prayed the Parliament to judge thereof The Fact is judged High Treason and Writs sent to divers Sheriffs to apprehend him which Writs were retornable into the King's-Bench And upon Proclamation made in Westminster-Hall That upon the Sheriffs Return and the not-Appearance of the said Thomas he should be convicted of Treason and forfeit c. This was extraordinary in terrorem But what may not the whole Parliament do They may alter Law much easier than Form In the Answer is to be considered First In what Causes the Party is to answer as a Prisoner and in what as a Freeman Secondly When Councel shall be allowed him and when not Touching the First The Parliament hath guided their Proccedings therein secundum Legem terrae Judicium Parium According to the 2th Chapter of Magna Charta Nullus liber homo capietur vel imprisonetur c. nisi per legale judicium Parium suorum vel per legem Terrae And therefore in Causes Capital whether the Party accused be a Lord of the Parliament or a Commoner he is brought a Prisoner to his Answer secundum legem terrae prout 4 E. 3. Numb 1. c. The Lord Berkley accused by the King for Murder of E. 2. Anno 1 R. 1. Jo. Lo. Gomeniz and W. Weston Upon the Demand of the Commons for surrendring Forts beyond the Seas An. 4. R. 2. Sir Ra. Ferrers Knight was apprehended for suspition of Treason Anno 28 H. 6. Although the Lords refused to commit the Duke of Suffolk upon the Commons complaint of him of a common Fame of Treason yet when they accused him of particular Treason he was Committed and brought Prisoner to his Answer But in Cases of Misdemeanors it is otherwise then the Party accused whether Lord or Commoner answers as a Freeman The Lord within his Place the Commoner at the Bar and they are not committed till Judgment unless upon the Answer of a Commoner the Lords find cause to commit him till he find Sureties to attend c. lest he should fly prout Jo. Cavendish upon the Lord Chancellor's Demand of Justice against him for his false Accusation was Committed after his Answer until he put in Bail Anno 7 R. 2. And before Judgment And so Michael de la Poole the said Chancellor 10 R. 2. after his Answer and many Replies of the Commons was Committed and presently Bayled Anno 50 E. 3. William Lord Latymer and John Lord Nevill being impeached by the Commons answered in their Place so did the Bishop of Norwich and the Lord Chancellor 7 R. 2. And the said Lord Chancellor too 10 R. 2. answered in his Place though afterwards he was committed before Judgment upon Request of the Commons The Bishop of Bristol 1 Jac. and the Duke of Buck. 1 Car. 1. All these answered as Freemen in their Places their Offences not being Capital And the like Precedents there are of Commoners Anno 50 E. 3. Richard Lyons William Ellis and John Beecher did answer as Freemen being impeached by the Commons And whereas the Commons did that year also accuse Adam de Bury who was absent the Lords sent for him to come but he contemned their Authority and came not Then the Lords as it seemeth by the Record sent to apprehend him and he could not be found wherefore they awarded that all his Goods should be put in Arrest Ibid. N. 17. It is briefly entred Adam was sent unto to come and answer in Parliament he came not nor could be found Wherefore it was awarded c. Which is sufficient to prove A Commoner is not to be brought a Prisoner to his Answer for a Misdemeanor if he will appear 5 R. 2. The Mayor and Bayliffs by name and the Townsmen of Cambridge were complained of in Parliament for many Outrages against the Scholars there and the Lords sent one Writ to the Mayor and Bayliffs that then were and to the Commonalty to appear and answer and another Writ to the Mayor and Bayliffs that did the Outrage and they appeared in person and the Commonalty by their Attorney This was the Ancient Course Yet even in these Days viz. 15 R. 2. the Peer of Holland complained of a great Riot committed by Henry Tibb and divers others in the Parsonage-House of one Williams Whereupon a Sergeant at Arms by vertue of a Commission to him made brought up the said Tibb and one more only the principal doers therein before the Lords in Parliament who upon the Return of the Examination confessed nhe whole Matter and were committed But I suppose the Sergeant at Arms was sent for haply they would have obeyed no Writ and yet he was sent for two of the principal Offenders only At this Day if the Commons accuse a Commoner of Misdemeanors in such a state of Liberty or restraint as he is in when the Commons complain of him in such he is to answer prout 18 Jac. Sir Francis Michell and Sir John Bennet were both committed by the Commons before their complaint to the Lords and so they answered as Prisoners But that in a sort may be called Judicium Parium suorum 18 Jac. The Earl of Middlesex being then Lord Treasurer and accused of Misdemeanors only absented himself from the House His Charge was sent to him in writing and he answered in writing At the Day prefixed for his Trial he was summoned by the great Usher to appear He came without his Staff and kneeled until the Lord Keeper willed him to stand up There he protested That he ought not to answer in that Place and desired others might not be prejudiced thereby And I hope they will not The Earl did himself the first wrong by absenting himself from the House for he might have stayed there until Judgment unless when his own Cause came in agitation §. 2. Touching Councel In all Causes of Felony Treason c. Councel antiently was denied to the Party accused prout Anno 4. R. 2. Numb 21. Sir Ralph Ferrers was brought to the Parliament under the Guard of the Marshal of England and arraigned at the King's behalf for suspition of Treason who prayed to the King and to the Lords to have Councel in that Case Unto whom it was said That in all Matters wherein Councel ought to be granted by the Law of the Land the King or Lords would allow it And it was further
Thar seeing by Order of the Lords House May 4. the Earl of Bristols cause should be wholly retained in this House how that might now be done in respect of the Stat. of 35 H. 8. By which it was enacted That all Treasons committed beyond the Seas as this Earls were shall be tryed in the Kings Bench or before Commissioners Assigned by the King And an Order of the upper House cannot avoid the Statute Some were of opinion that the Earl was first to be indicted before Commissioners appointed by the King and that Indictment being returned into the Parliament to be tryed thereon by his Peers and vouched that Precedent of 2 H. 6. Of Sir John Mortimers Indictment returned into the Parliament But then the Cause cannot be wholly retained in the Parliament neither can it be inferred out of the Precedent of Sir John Mortimer that the Parliament can try any of Treason unless he be Indicted elsewhere For then the Parliament should not have so much power as hath the Kings Bench and other inferiour Courts wherein Capital Offences may be both enquired of and determined Neither can Sir John Mortimers Indictment thus returned be a leading Case for Tryal of Peers in Parliament for he was but a Commoner and therefore not to have been judged by the Lords unless they had first accused him and the Commons did so by Informing the Indictment to be true before the Lords gave Judgment upon him But their can be no Precedent shewn that a Peer of Parliament hath been tryed in Parliament on an Indictment taken elsewhere To resolve this Question two things are Considerable First The Statute of 35 H. 8. Whether the meaning thereof were to limit the Tryal of a Peer in the time of the Parliament for Forreign Treasons assigned taken in the Kings Bench or before Commissioners Assigned by the King and not elsewhere But I conceive the Statute hath no such meaning The Preamble saith it was doubted whether such Treasons might by the Common-Law of the Land be enquired into heard and determined within this Realm of England For a plain remedy Order and Declaration herein to be had and made Be it enacted c. So that if such Treasons have not been heretofore enquirable by the common-Common-Law then this Statute provides a Remedy and Order for the same hereafter But this Statute doth not abridg the Parliament of the power it had to enquire of and determine such Treasons in time of Parliament Whereof there are diverse Precedents viz. 1 R. 2. Weston and Gomeniz 50 E. 3. for William Latimer and John Nevil 7 R. 2. for the Bishop of Norwich ibid. Numb 17. for Cressingham and Shipworth ibid. Numb 24. for Sir William Elsingham Sir Thomas Trevet and Sir Henry de Ferrers all Tryed in Parliament for matters done beyond the Seas The second thing to be considered is The Order it self which I conceive to be of force notwithstanding the Statute of 35 H. 8. for that it is neither directly contrary to the Statute nor repugnant to the Common-Law otherwise the Act of one House alone cannot alter a former Statute made by consent of both Houses And this is to be remembred that the Proceeding against a Peer in Parliament is not necessary But thus it was used to be viz. The Peer accused to be brought before the Lords and Commons and then the Lord Steward to sit in the Chancellors place on the Woolsack and the Articles to be read against him by the Clark of the Crown and upon his Answer the Lords do determine of their Judgment which is afterwards pronounced by the same Lord Steward A Question might be whether the Commons have used to sit with their Speaker at these Tryals If they have then the Court of Requests or some such place may be provided for the purpose And thus that whole Cause might be retained in Parliament notwithstanding the Stat. of 35 H. 8. Thus much touching the Accusation ex parte Dom. Regis exhibited in a formal Accusation by the Kings Atturney The Duke of Clarence was arraigned in Parliament 18 E. 4. upon the like Information but the Precedent is not in the Parliament Rolls Therefore I omit it §. 4. The second kind of Accusation on the Kings behalf is ex mandato Dom. Regis upon the Roll and view of any proceedings elsewhere against the Delinquent or upon his Petition The Precedents thereof are these Anno 5 H. 4. The Earl of Northumberland was Tryed in Parliament ex mandato Dom. Regis upon his own Petition The Accusation and manner was thus The said Earl had raised Forces to have joyned with his Son Hotspur in Rebellion against the King Hotspur was slain in the Battel of Shrewsbury 21 July 4. H. 4. before the said Earl could joyn with him Whereupon he dismissed his Forces and retired to Worksworth Castle The King after the Battel came to York and sent for the said Earl and being come pardoned him for his life but abridged him of his Liberty The next Parliament was summoned the 20 of October to begin at Coventry the 3. of December And the Earl had his writ of Summons This Parliament was prorogued till the 23. of November by new Writs as the manner then was returnable Crastino Hillarii then following But the Earl had no new Summons thither But thither he comes a Petitioner Speed saith he was abridg'd of his liberty but the Record saith he came before the King and Lords And not that he was a Prisoner as Gomeniz and Weston 1 R. 2. Nor that he was caused to be brought as a Delinquent sent for as Alice Peirce 1 R. 2. But that he came before the King Lords and Commons of Parliament And then the Chancellor told him that upon Wednesday last past he had been before the King and Lords and Commons in the same Parliament and besought the King as he had done before at his coming before him at York That the King would do him grace for his misprisions against him in not keeping his Laws and Statutes as by one Petition delivered by him in Parliament written in English The tenor whereof followeth To my most dreadful and Soveraign Leige Lord. I your humble Subject beseech your Highness to have in remembrance my coming into your Gracious Presence at York of your free will by your goodly Letters The which Petition per Commandment du Roy was examined by the Justices to have their Counsel and Advice therein But the Lords by Protestation made claimed the Judgment to belong unto them only in such Cases c. And so the Lords Tryed him and acquited him of Treason and Felony but found him guilty of a Trespass only which the King pardoned Here no Information was exhibited against the said Earl yet the Kings Counsel opened his Offences to the Lords else how could they appear Anno 7 H. 4. The King commanded the Lords Temporal in Parliament to advise what manner of Process should be made
said unto the said Sir Ralph That forasmuch as the Matter stands so much upon Treason That by the Law he ought not to have Councel in his Case of no earthly Creature but obliged himself to answer at his peril This last Answer was given upon deliberation And 5 R. 2. Numb 44. Sir Richard Cogan Knight being accused by Richard Clevedon Esquire for extorting 200 l. from the Prior of St. John's of Jerusalem in a riotous manner required Councel which was denied him for that the Cause touched Treason 28 H. 6. The Duke of Suffolk being accused of Treason by the Commons desired Copies of the Articles but no Councel and he answered without Councel Primo Car. 1. In the Parliament begun Febr. 6. The King's Attorney exhibited Articles of Treason and misdemeanor against John Earl of Bristol and he had no Councel allowed him which was on this occasion Anno 21 Jac. The Earl of Middlesex was denied to answer by Councel touching Misdemeanors only that Precedent of 10 R. 2. of Michael de la Poole being mistaken as I conceive And afterwards the Lords considering the Inconveniences that might happen thereby did order that Councel should be allowed to all Delinquents in all Cases generally At the Voting of which Order the King and Prince were present and I did expect some Reply thereunto on the King's behalf and especially observed whether the Prince would any ways dislike of it either in Words or Countenance and he shewed none which made me verily believe that he had been acquainted therewith beforehand but he was not as I shall make it appear In this present Parliament upon reading the Articles of Treason and Misdemeanors against the said Earl 6 Maij and upon the Earl's Answer to them on the sudden The Journal is The Lords did answer that he should have Councel allowed him to plead his Cause But on Monday the 8th of May the King sent a Messenger to them That he not suing for a Default in Cases of Treason and Felony It is an ancient fundamental Law of this Kingdom and desired the Lords to proceed with that Caution that ancient fundamental Laws may receive no blemish nor prejudice On the 15th of May the Lords answered this Message That by an Order Dated May 24. 21 Jac. Anno 1624. Counsel was then present and they had allowed the Earl of Bristol Councel before the Message came May 14. His Majesty is content the Earl of Bristol to have Councel although his Majesty knew that by the Law he ought to have none but takes Exceptions to that Order of the 24th of May 1624. That it was occasioned by the Earl of Middlesex whose Cause was only Criminal which never till now extended to Cases Capital And that the Judges were neither advised with therein nor the King's Councel heard for his Majesty and therefore his Majesty is not satisfied about the general Order but will advise c. The Lords thereupon allowed him Councel to plead c. This Parliament of 6 Feb. 1 Car. 1. was dissolved before the Cause of the Earl of Bristol was heard and determined and that the said Earl was sued in the Star-Chamber for the very same Matter contained in the Articles against him in Parliament All which were but Misdemeanors And if it be lawful for me to speak freely I believe the Lords thought they were but Misdemeanors when they allowed him Councel in Parliament But in Cases of Misdemeanors only the Party accused was never denied Councel Anno 10 R. 2. The Commons accused Michael de la Poole of many Misdemeanors in open Parliament before the King Afterwards in the King's Absence the Chancellor said first to the Lords That he was Chancellor of England and for the time represented the King's Person in his absence and demanded whether he ought to answer in the Presence of the King since he was impeached of Acts done whilst he was Chancellor This received no Answer Secondly He said That he had appointed by the Advice of his Councel Monsieur Richard le Scroope his Brother-in-Law should have the words of his Answer to the first Impeachment Whereunto the Lords said That it was Honest for him to speak by his own mouth And thereupon he made Protestation that he might add to and take from that which should be honourable and profitable for him The which things unto him were granted And the said Chancellor declared as well by himself as by the mouth of the said L. Scroop That c. I note here that Councel was not denied him but that it was only told him It was honest for him to answer by his own mouth Anno 7 R. 2. The Bishop of Norwich for Misdemeanors in general Numb 15. was particularly charged by the Chancellor Numb 18. The Bishop said That albeit in this Case he ought to have Counsel yet making Protestation That at all times he might amend his Answer he would answer in person and so he did Numb 19. Anno 1 Car. 1. The Duke of Buckingh being accused by the Commons of Misdemeanors and Copies of the Impeachments and Answered by Councel in this manner viz. Die c. The Duke being in his Place and standing his Councel came to the Bar and then read the Dukes Answer as it was penned in writing Yet sometimes in Cases of Misdemeanors when the Party accused hath demanded the Copies of the Articles and Councel and Time to answer the Parliament hath compelled them to make a present Answer without Councel but this is rare and I have seen but one Precedent of it Anno 5. R. 2. Die Animarum Numb 45. The Mayor Bayliffs and Commonalty of Cambridge were accused by c. For that they in the late Tumults and Wars confederated with other Misdoers did break up the Treasury of the University and compelled the Chancellor and Schollars to release to the Mayor all their Liberties and all Actions c. In Num. 46 47. Several Writs were sent to command them to appear They appearing at the Day and answering to such Articles as were objected by the King's Councel and delivering in the two Releases which were cancell'd Numb 48. Then the Chancellor and Scholars exhibited divers Articles against them by way of Petition Upon the reading whereof it was demanded of the said Mayor and Burgesses what they would say why their Liberties should not be seized into the Kings hands as forfeited And they required Copies of the Articles and Councel and Respite to answer Numb 54 55. To the Copy of the Articles it was answered That inasmuch as they had heard them read it should suffice for by the Law they ought to have no Copy And touching Councel it was said That wherein Councel was to be had they should have it and therefore they were then to answer to no Crime nor Offence but only touching their Liberties Numb 56. After many dilatory Shifts the said Burgesses submitted themselves to the King's Mercy touching their Liberties only saving