JOHN SELDEN OF THE JUDICATURE IN Parliaments A Posthumous TREATISE WHEREIN The Controversies and Precedents belonging to that Title are Methodically handled LONDON Printed for Joseph Lawson Bookseller in the Bail of Lincoln And Sold by the Booksellers in London A Scheme of the Method and Contents CHAP. I. PEers to render Judgment of Peers pag. 1 Qu. Whether the Spiritual Lords de jure are triable by their Peers p. 4 Touching the Nature of the Offences triable in this High Court 6 CHAP. II. In what Cases Judicature belongs to the Parliament 8 Of Judgment on Delinquents 10 § I. 1. Their Accusation by the Commons 11 Four manner of Accusations in Parl. ib. Precedents of their Complaints 1. By Petition 12 2. By Demand 16 3. By Impeachment 17 § II. 2. Accusation ex parte Domini Regis p. 33 Some Delinquents accused in Parliament upon Common Fame without proof of Witnesses 37 The Judgment Repealed 38 No Peer can be Indicted in Parliament 39 He may be Indicted out of Parliament and proceeded against in the next Parliament upon the said Indictment 40 § III. Qu. Whether S. R. Ferrars 4 R. 2. was Legally brought to his Answer in Parliam by Commandment of the D. of L. 44. Whether he being no Peer nor Baron could be Legally Arraigned in Parliament by Information ex parte Regis Ib. Question Resolved 45 How the Earl of Bristol's Cause could be heard in the House of Lords notwithstanding 35 H. 8. 46 The Usage in such Cases and Precedents 48 Whether in a Trial before Lords and Commons the Commons are to Sit with their Speaker 54 § IV. Accusation ex Mandato Domini Regis ib. The Earl of Northumberland's Case 5 H. 4. ib. The Lords Impeach not any to themselves because they are Judges 63 The Manner of proceeding against a Delinquent that absents ib. § V. Of Accusation by Complaint of private persons 66 The Fishmongers Complaint against the Lord Chancellor 7 R. 2. 72 The Lord Chancellor his Defence 74 Of the Complaint against Bishop Williams Lord Keeper 80 The History of the Appeal 11 R. 2. 81 The Lords proceed not against a Commoner but upon the Complaint of the House of Commons 84 Appeals abolished 1 H 4. c. 14. 87. CHAP. III. The Parties Answer 89 The Party accused to be brought to his Answer 95 An Answer required from the D. of Gloucester to certain Accusations though he were dead and Judgment given upon him 91 Another Delinquent found guilty long after he was dead 95 In what Cases the Party is to answer as a Freeman in what as a Prisoner 97 Things to be considered in the Answer 97 Variation from the Ancient Course 100 Touching Council allowed him 102 § 2. When Council shall be allowed him and when not ib. In Misdemeanors the Party may have Council to Answer 103 But the Earl of Middlesex was denied it 21 Jac. 103 The Parliament hath compelled a present Answer in Misdemeanors and without Council 107 The Mayor c. accused by the Scholars of Cambridge ib. § 3. The Replication 109 Where the Articles against the Delinquent are ex parte Regis there the Commons do not reply nor demand Judgment ib. Impeachment of the Lord Latimer 111 William Ellis Impeached 114 Lord Nevile Impeached by the Commons ib. CHAP. IV. The Proof By Examination of Witnesses 120 Witnesses produced by the Commons ib. A Committee for Trial of Alice Pierce 123 A Jurie in Parliament for Misdemeanors 125 G. D. of Clarence Arraigned 127 CHAP. V. The Judgment 132 § 1. It belongeth to the Lords only 133 The Commons have no Right to it ib. § 2. In what Cases the King's Assent is necessarily required 136 Necessary in Capital Judgment 143 In Judgment on Misdemeanors the King's Assent is not required 144 § 3. The King's Presence in Parliament 39 § 4. The Presence of the Lords Spir. ib. In Cases of Misdemeanor aff ib. Capital neg ib. The Protestation of the Bishops for ever 150 Whether they can be present not Vote 152 A Bishop being Lord Chancellor was present at the giving Sentence in Case of Treason 156 § 5. Of the Presence of the Commons in Cases Capital 158 The Precedents 149 Their Presence not necessary unless when they impeach 160 Whether they Sit if they are present 161 Of the Presence of the Judges 162 § 6. The manner how the Lords resolve on their Judgment 167 Whether it be ultra Legem 168 Judgments for satisfaction 173 References to the Common Law 175 By whom to be demanded 176 By whom to be rendred ib. CHAP. VI. The Precedents for Life and Death 178 CHAP. VII The Execution of the Judgment 182 In Capital Offences In Misdemeanors CHAP. VIII The Recovery of Damages or Restitution to the Party aggrieved 187. JUDICATURE IN Parliament CHAP. I. Peers to render Judgment on Peers THE Execution of all our Laws hath been long since distributed by Parliament out of inferiour Courts in such sort as the Subjects were directed where to complain and the Justice how to redress wrongs and punish offences And this may be the reason of the Judges opinion in Thorps Case 31. Hen. 6. Num. 37. That Actions at common-Common-Law are not determined in this High Court of Parliament yet complaints have ever been received in Parliaments as well of private wrongs as publick offences And according to the quality of the Person and nature of the offence they have been retained or referred to the common-Common-Law Touching the quality of the Person the Lords of the Parliament did not anciently try any Offenders how great soever the offence was unless he were their Peer As by that of 4 E. 3. N. 2. where when the King commanded the Lords to give Judgment on Simon de Bereford and divers others also who were not their Peers for the murther of E. 2. and the destruction of the Earl of Kent Son of E. the first A proviso and agreement was made and recorded in these words Et est assensu accord c. And it is assented and accorded by our Lord the King and all the Grandees in full Parliament That albeit the Peers as Judges of the Parliament have took upon them and rendred the said Judgment c. That yet the said Peers who now are or shall be in time to come be not bound or charged to render Judgments upon others than Peers Nor that the Peers of the Land have power to do this but thereof ever to be discharged and acquitted And that the aforesaid Judgment rendred be not drawn to example or consequence in time to come whereby the said Peers shall do contrary to the Laws of the Land if the like Case happen which God forbid 4 E 3. N. 6. This Proviso and agreement was made by the Lords and Commons and it had these respects First to satisfy the Commons that the Lords by these Judgments intended not to alter the course of the Common-Law and therefore they disclaimed that they had power
to do this and confess it was contrary to the Law of the Land Secondly to preserve their own Right to Judge none but the Peers in Case of Life and Death For then the Kings Steward is to sit in the Chancellors place and the Lords are to be Tryers and Judges And so by judging others then their Peers descended below their degrees For none but Peers are so to be Tryed and Judged It is otherwise in Cases of misdemenors then the Chancellor keeps his Place and the Lords are only Judges and not Tryers they may command a Jury to be Impannelled For Tryal of the Facts if the truth appear not by the Parties answer the Testimonies are Exhibited as 1 R. 2. in the Case of Alice Peirce Here ariseth a Question Whether the Spiritual Lords de Jure are tryable by their Peers or no Out of Parliament they are not to be Tryed by the Peers But the doubt is whether in time of Parliament they are to be so Tryed or no To me it seems they may if the matter be moved against them in time of Parliament For as it is in the Parliament at York 15 E. 2. in the Act for the Repeal of the Spencers banishment they are Peers in Parliament Note that the Petition for the Repeal saith that the Bishops are Peers in Parliament The Bishops name themselves Peers of the Land And the Chancellor to the King And the Act stile them Peers of the Land in Parliment There be divers Presidents also of the Tryal of Bishops by their Peers in Parliament as well for Capital offences as misdemenors whereof they have been accused in Parliament As the Archbishop of Canterbury 15 E. 3. N. 6 7 8. Et ibid. postea 44 39. Et ibid. 17 E. 3. 22. And the Bishop of Norwich 7. R. 2. for misdemeanors So were the Bishops of York and Chichester Tryed for Treason by their Peers in Parliament upon the Appeal of the Lords Appellants 11 R. 2. Anno 21 R. 2. The Commons accused the Archbishop of Canterbury of Treason and the temporal Lords judged him a Traytor and banished him But if the Bishop be accused out of Parliament he is to be tryed by an Ordinary Jury of Free-holders for his honour is not inheritable as is the temporal Peers out of Parliament save that only of their Tryal As no day of Grace to be granted against them in any Suit A Knight to be returned upon the Pannel where a Bishop is party and no Process in a civil action to be awarded against his body and the like And by this it appeareth what Persons are de Jure tryable by the Lords in Parliament viz. their Peers only Touching the nature of the Offence Herein the complaint and accusation as well of the Party delinquent as offence is to be considered For upon the Information of the King at his Commandment or upon complaint of private Persons the Lords may not by the Law try any but their Peers for Capital offences And the Lords have ever referred offences of other nature complained of by private Persons to the Common-Law if there be remedy unless some special cause appear fit for their own Judgment But upon complaints and accusations of the Commons the Lords may proceed in Judgment against the Delinquent of what degree soever and what nature soever the offence be For where the Commons complain the Lords do not assume to themselves tryal at Common-Law Neither do the Lords at the tryal of a Common Impeachment by the Commons decedere de jure suo For the Commons are then in stead of a Jury and the Parties answer and examination of witnesses are to be in their Presence or they to have Copies thereof And the Judgment is not to be given but upon their demand which is in stead of a verdict so the Lords do only judg not try the Delinquent In the Lords proceedings in Judicature is observed also a certain form which varieth according to the nature of the complaint and the matter complained of so that no general Rules can be given therein though many Judgments have been reversed for errors whereof there be many Precedents And the Execution upon life and death hath been stayed at the Request of the Commons the proceedings being illegal whereof I have seen only one Precedent touching the Duke of Clarence tempore E. 4. Wherefore for our better understanding of the Form of Judicature let us first consider the several causes wherein Judicature belongs to the Parliament and then the ancient way of proceedings in each Cause CHAP. II. In what Cases Judicature belongs to the Parliament JUdicature belongs to the Parliament in these six Cases 1. In Judgments against Delinquents as well for Capital crimes as misdemeanors wherein is to be considered 1. The Accusation 2. The Parties Answer 3. The Replication 4. The proof by Examination of witnesses or otherwise 5. The Judgment 6. The Execution 2. In the Reversing erronious Judgments in Parliament are to be considered 1. The Petition 2. The bringing in the Record 3. The Assignment of Errors 4. The Reversal thereof 3. In the Reversing of erronious Judgments given in the Kings Bench are to be considered 1. The Petition 2. The Writ of Error 3. The bringing in the Record 4. The Assignment of Errors 5. The Writ of Scire facias 6. The Defendants answer 7. The Reversal of the Judgment 4. In deciding of Suits long depending either for difficulty or delay wherein is to be considered 1. The Petition 2. The advice with the Judges 3. The determination of the Lords 5. In hearing complaints of particular Persons on Petitions wherein is to be considered 1. The Petition 2. The Defendants answer 3. The Proof 4. The Orders of the Lords 6. In setting at Liberty any of their own Members or Servants imprisoned and in staying the proceedings at the common-Common-Law during the Priviledge of Parliament wherein consider 1. The Quality of the Person Imprisoned 2. The Parties Answer at whose Suit he is imprisoned 3. The manner of his Charge In certifying the Elections and Returns of Knights and Citizens for the Parliament But now the Commons alone determine of this Wherefore I will only shew that the Commons did heretofore Petition to the Lords for redress herein and what course was then taken I leave it to the Clerk of that House to shew how the Commons proceed herein at this day Of the rest in Order And first Of Judgments on Delinquents § 1. In Judgment against Delinquents is first to be considered the Accusation For as in the Kings Bench the Justices proceed not to the Arraignment of any Offender without an Indictment So the Lords have not proceeded to Judgment unless the Crimes have first been presented to them by way of Accusation If otherwise their Judgments have been reputed erronious as that against the Spencers was in 15 E. 2. Rot. 2. claus lit penden For the same Persons cannot be both Accusers
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-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-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
the Tower for three Weeks May it please you c. Here I observe that the Accusation of a private person ought to be legal and certain as that was This Accusation consists of two parts The unjust taking of 17 Nobles c. from the Merchant of Pruse and the Imprisonment of the Petitioner by false suggestion to the King Upon hearing of the Matter the Lords Ordered That as for the Complaint tovching the 17 Nobles it should be sent to the Kings-Bench to be tried there but the Lords themselves determined the Imprisonment upon the false suggestion to the King and awarded Ellis to prison to pay Fine and Ransom to the King and Dammages to the Accusers The Lords received the latter part of this Complaint for two Causes The one for the false Suggestion to the King limited by the Statute of 31 E. 3. to be punished by the Chancellor L. Treasurer and the Councel if he be untrue all which were present in the Parliament The other For a Scruple which might arise out of the Words of the Statute which provides for false Suggestions only to the King himself Whereas Ellis his false Suggestion was by a Letter written to one of the Kings Servants which being shewed to the King his Majesty caused the Petitioner to be imprisoned And this the Lords expounded to be in Ellis a Suggestion unto the King himself And had this Point been truly triable at the Common Law the Lords had referred it thither This is but my own Conceipt Anno 5 R. 2. Numb 4. Richard Clevedon Esquire by his Bill exhibited to the King in Parliament accuseth Sir William Cogan Knight Anno 5 R. 2. Numb 45. The Mayor Bayliffs and Commonalty of Cambridge were accused c. The next of this kind is a very slanderous Accusation of the Chancellor which I will briefly declare and the whole proceedings therein for that it differs in some points from the rest The Parliament of 7 R. 2. at Salisbury began the Friday after the Feast of St. Mark the Evangelist April 29. On the 24th-of May next John Cavendish Fishmonger complained in this Parliament First Before the Commons of England in that Assembly in presence of some Prelates and Temporal Lords and afterwards before all the Prelates and Temporal Lords in full Parliament In the beginning of this Complaint he desired the Lords for God's sake to grant sure and speedy protection for the safety of his Life and that he might have sufficient Surety of the Peace against those of whom he would complain and especially he demanded Surety of Monsieur Michael de la Poole Chancellor of England and accordingly the Chancellor did at the Commandment of the King find Sureties viz. Two Earls c. Then the Fishmonger rehearsed how that all the last Parliament which was held at Westminster at Allhallontide in the same year he did sue by his Bill to have restitution of certain Merchandizes of great value from Geo. Mansfield and three others which was lost upon the Seas by them at such time as they had undertaken the Safeguard of the Seas and of the Merchandizes passing and coming in the mean time against all Enemies except Royal Power The which was endorsed saith he and committed to the Chancery to discuss and determine the Matters therein comprized according to Law and Reason Whereupon he dealt with one John Otrey a Clerk and Houshold-Servant to the said Chancellor for his Master's Favour and Furtherance in the Business The Clerk after he had viewed a Copy of the Bill and considered of the Business promised that for Forty Pounds to his Lord's use and Four Pounds to his own use he should have speed That he gave his Bond for 44 l. to be paid at a Day to come and afterwards delivcred unto the said Otrey certain Herrings and Sturgeon to the value of 9 or 10 Marks to the use of the said Chancellor in part and three yards of Scarlet which cost him 32 s. unto Otrey for his own use in part of the said 4 l. Notwithstanding all which he found no Favour from the Chancellor in his Suit but was delaied and still is and cannot have Justice therefore That the said Otrey told him that he could have had more Money of his Adversaries to have been against him which made him suspect the worst But said he whether the Chancellor shall be reputed privy to this God knoweth judge you My Lords for the Chancellor hath paid him for his Herrings and other Fish and sent him his Bond cancelled but whether he did it out of Conscience or to avoid Slander and Reproach he knew not Judge you My Lords but he was not paid for his three yards of Scarlet Unto this the Chancellor made his Answer not presently but at another time for the Record saith He Answered first before the Prelates and Lords and afterwards before the Lords and Commons whereas the Commons were present when the Complaint was made it being in pleno Parliamento And in the Judges Award to whom this Matter was afterwards referred it is said to be coram Magnatibus Communitat ' in Parliamento So that the Answer was made some other way First He protested his Innocency touching the Delay of Justice and shewed how the Delay was through the Difficulty of the Cause and vouched the Justices and the Serjeants who had often heard the Pleadings Touching the Bribery he swore by the Sacrament he had no knowledge thereof until upon Accompt with his Officers he found those Fishes not paid for and then he presently caused them to be paid for and the Bond cancelled and sent him He denied that his Clerk moved him in that Business all which he offered to prove in such manner as the King and the Lords should ordain and demanded Justice against the Fishmonger for the Slander Unto which the Fishmonger presently answered and said He did not accuse the Chancellor himself but his Clerk only The Lords examined the Fishmonger and the Clerk about the Bond and his Adversaries on their Allegiance whether they had given any thing or promised to give And finding tde Chancellor free from Bribery the Lords acquitted him of his Accusation aforesaid then at the Chancellor's Request the Fishmonger was committed until he found Sureties to appear de die in diem before the Lords and before any Judges who should be assigned The Lords committed the Clerk also and afterwards the Parliament growing to an end the Complaint was referred wholly to the Judges to hear and determine the same as well for the King as for the Parties Auxi avant come les Peres de Parliamento might have done if the Plaint had been fully treated in their presence and in the Parliament The Proceedings before the Judges were in a Schedule annexed to the Parliament-Roll and were thus A Commission was granted in Parliament unto Tressilian Chief Justice of the King's Bench and Bellknap Chief Justice of the Common Pleas to hear and determine
They met at Westminster June 19. and were assisted by the Lord Treasurer Lord Keeper Lord Privy Seal the Master of the Rolls and the King 's two Serjeants c. and they called the Fishmonger before them and cause to be recited the said Accusation and the Chancellor's Answer and then demanded of him what he could say why he should not undergo the Penalty of the Statute against such Scandals especially whenas the Chancellor hath acquitted himself in Parliament and is yet ready to acquit himself by any way possible The Fishmonger denied that he slandered the Chacellor but the Clerk only c. The Commissioners considering the Accusation and Answer in Parliament and especially that the Fishmonger said he could not have Justice in his Cause before the Chancellor the contrary whereof was expressed and proved out of the Records of the Chancery They adjudged him guilty of Defamation and to pay one hundred Marks to the Chancellor and to be imprisoned until he could pay the same and a competent Fine due to the King It should seem the Lords could find no time to examine the Injustice he complained of and therefore referred it to the Judges Anno 6. R. 2. Octab. Mich. Numb 59. Divers Bills were exhibited this Parliament by the Mayor Aldermen and Citizens of London concerning the Fishmongers and the said Mayor and Aldermen and Fishmongers were present at the reading thereof where Nicholas Exton who spake for the Fishmongers prayed the King to receive him and his Company into his Majesties protection Numb 59. which was granted Numb 60. Then one Walter Sybil a Fishmonger craved Audience and said These Bills were not exhibited for any good zeal to the Commonweal but for meer Malice to the Fishmongers for that the chief Exhibiters of these Bills being commanded to prison for sundry Misdemeanors in the time of E. 3. were then imprisoned by certain of the Fishmongers who then were chief Officers in London for which cause Malice was born at that time Numb 60. To that one John Moore a Mercer answered The Citizens of London went to keep the Peace towards them unless they went about to let into the said City the Rebels of Kent and Essex as the said Walter and others did Numb 60. The said Walter Sybill took advantage of those words and desired the Lords to bear witness John Moore thereupon expounded his words saying as the Report then went and prayed the Lords that the Truth thereof might be further enquired of in the City There is one only Precedent of a Complaint made by a private person in the House of Commons and of the Commons proceeding therein against a Lord of the Parliament which was thus Anno 15. H. 6. Tho. Philips exhibited unto the Commons his Bill of Complaint against John Bishop of London for his long Imprisonment upon suspition of Heresie The Commons sent up the Bill being written in Paper amongst other to the Lords without any Message for ought appeareth upon Record On Monday following the Bill was read and the Lords Excogitabant That it did not belong to their House de talibus frivolis rebus consultare and returned it to the Commons Hereupon the Commons sent to the Bishop for his Answer in writing unto this Complaint which yet the Bishop did forbear to do until he knew the Opinion of the Lords herein and acquainted their Lordships therewith The next day the Lords answered all with one voyce Quod non consentaneum fuit aliquem Procerum alicui in eo loco responsurum Lunae 2. Martii In the Parliament begun at Westminster An. 16. Jac. Sir John Bowser Knight complained of the Bishop of Lincoln the then Lord Keeper but he was not compellable to answer before the Commons 10 R. 2. The Commons accused de la Poole openly in Parliament before the King and Lords unto which the Councellors made a good Answer in the Opinion of this Age yet upon the many Replications of the Commons and the enforcement of his Oath strictly against him he was Fined and Imprisoned c. In this Parliament also the Lords and Commons procured Commission unto certain of the Lords to enquire of the Enormities of the Realm and to redress them The King was so highly displeased with these Proceedings that on the last day of this Parliament being the 25th of November he himself protested that nothing done therein should turn to the Prejudice of him or his Crown Afterwards he sought all means to overthrow those Lords who procured that Commission viz. the Duke of Gloucester the Earls of Danby Arundel Warwick and Earl Marshal And at a Consultation thereupon he sent for the Chief Justice Tressilian and some other Judges and his Serjeants at Law unto Nottingham where on August 25. Anno 11. he propounded certain Questions containing all the points of Advantage against the Proceedings of the last Parliament which the Judges affirmed to be Treason under their Hands and Seals Then the King thought to proceed judicially against those Lords but they kept together with the Duke of Gloucester at Heringby with a strong Guard And the King sent for them and all doubts of danger to their Persons being first removed they came Novemb. 3. Anno 11. and kneeling before the King's Majesty he demanded why they were Assembled at Heringby-Park in warlike manner They answered for the good of the King and Kingdom and to remove certain Traytors from about him meaning the Lord of Ireland the Archbishop of York Michael de la Poole Sir Robert Tresilian and Sir Nich. Brembre And with that they threw down their Gloves and Gages of the Challenging to prove the same Unto which the King replied This shall not be done so but at the next Parliament which shall be the Morrow after Candlemas Day and then all parties shall receive according as they deserve In the mean time he conveys away the parties accused and acquits them by Proclamation then summoned a Parliament at Westminster Crast. Purificat 11 R. 2. Where these few Lords Appellants came well Armed which made the King unwilling to come amongst them yet at last he came Haec ex Ep. fol. 603. On the first Day of this Parliament the Duke of Gloucester one of the said Appellants kneeling before the King shewed That whereas he understood his Majesty was informed that he intended the Deposing of him and Advancing himself to the Crown he was ready to declare his Innocency herein in such sort as the Lords would ordain Whereupon the King answered He held him thereof acquitted On the second Day of this Parliament the said Appellants exhibited their Petition to the King concerning several Articles against divers Lords and Commons whom they appealed of Treason The said Articles being read in presence of the King and Lords in Parliament the said Appellants offering to make Proofs thereof required that the said Appellees might be called to Answer and for default of their Appearance demanded Judgment against them Hereupon
the King and Lords deliberated The Judges of the Common Law and the Sages of the Civil Law were charged by the King to give their best Counsel to the Lords of the Parliament how to proceed in their Appeal rightly Who after long Consultation answered the Lords That the Appeal is in no point made and declared according to the Order of the Common or Civil Law The Lords after long Debate declared by the Assent of the King that the Offences being committed by the Peers the Cause should be determined in Parliament only and that by the Law and Order of Parliament only and adjudged the said Appeal with the Process thereon depending to be good according to the Laws and Course of Parliaments And the Default of Appearance was Recorded and Judgment given c. against those who made their default After which Sir Nicholas Brembre a Commoner was brought Prisoner before the King and the Lords at the request of the said Appellants And the said Articles being read he pleaded Not Guilty which he was ready to defend with his Body Whereupon the Commons of the Parliament said that they had seen and considered all the said Articles which they found to be true and that they likewise as much as in them lay did also accuse the said Appellees which they would have done and it appertained to them to have done had not the aforesaid Appellants pursued the said Appeals Whereupon was answered by the Lords of Parliament That the Battel doth not lie in this Case but that they upon examination of the Articles would proceed to Judgment Here I note That the Lords cannot proceed against a Commoner but upon a Complaint of the Commons But here is not expressed how the Commons came daily to have a sight of these Articles I deny not but after they were read in their presence for their presence is always understood in Judicature upon Life and Death prout postea they demanded a sight of the Articles and considered of them apart and then supplied the Defects thereof And this also is to be observed that the Commons accuse Commoners as the Lords do their own Peers I suppse that Brambre was denied the Battel because the Commons accused him also otherwise he ought to have it granted upon an Appeal Afterwards the Commons themselves accused and impeached divers Commoners prout 2 Mar. Sir Rob. Belknap L. Chief Justice of the Common Pleas Sir John Carey late Chief Baron and other Justices c. The Records were brought into the Parliament at the Demand of the Commons and the Commons accused the Justices for their untrue Answer made unto sundry Questions before the King at Nottingham to the emboldning of the aforesaid Offenders in their traiterous Designs and Attempts c. Unto which they answered c. were adjudged c. And then follows another Impeachment of the Commons thus The Accusements and Impeachments made by the Commons of the Realm against Simon de Burle Sir John Beauchamp Sir John Salisbury and Sir James Berners Knights do ensue underwritten whereof the Commons pray Judgment in this present Parliament Thus much touching the Appeal of 11 R. 2. But this begot another Appeal in the 21th of the said K. R. 2. in the Parliament begun Sept. 14. being the Feast of St. Oswald Edmond Earl of Rutland Tho. Earl of Kent John Earl of Hunt Tho. Earl of Nottingh Joh. Earl of Somerset Jo. Earl of Salisbury the Lord Despencer and William Scroop Chancellor unto our Lord the King in their proper persons delivered unto our Lord the King then sitting in the great Hall within the Castle at Nottingh in his Royal Estate with a Crown on his Head a Bill of Appeal against Tho. Duke of Gloucester Richard Earl of Arundel and Tho. Earl of Warwick The which Bill of Appeal is recited in that Parliament and as it seems per Copiam verborum inde was penned by the Advice of some Civil Lawyer It seems also they were very careful herein to avoid all Errors of the former Appeals For in that of 11 R. 2. they appealed divers Commoners but here the Lords appealed none but Peers then it was done by word of mouth they being called to the King upon some other occasion but now it was done solemnly in writing and was delivered to the King sitting in his Throne of State There they offer'd to prove their Accusation by Battel a thing not meet for the Parliament or in what course his Majesty would ordain it but here the Bill was read in Parliament and they said they have been and are ready to prove c. as you our thrice Redoubted King and this Honourable Court of Parliament should ordain Nor were they less careful in their proceeding to Judgment to avoid the Errors in the former prout in the Answer But these Appeals are now abolished by 1 H. 4. c. 14. and not without cause for as this Accusation was extraordinary so were the Proceedings carried with a strong hand the former by the Lords this by the King prout ex Chroniculis in quinto comparet cum Codice 1 Maij A Brief whereof so much as concerns this Appeal follows hereafter at large with the Precedents of 21 R. 2. Ad quod Parliamentum convenire jussit Rex omnes Dominos sibi adhaerentes cum Sagittariis viris armatis tanquam ad bellum contra hostes omnino progressuri fuissent Ipse vero Rex ut efficacius proficere possit nequam conceptus malefactores de Comit ' Cestr ' congregari fecit ad velandum locum stramine c. Erexerat autem Rex quandam domum amplissimam in Palatio Westmonaster ' quae pene totum Palatii spatium occupavit in qua sibi Thronus parabatur altissimus pro cunctis Regni Statibus locus largus pro Appellantibus in uno latere locus specialiter deputatus in alio latere locus largus pro Responsu assignatus seorsim vero pro Nobilitatibus Parliamenti qui non fuerunt electi per Communitatem Et Forale nuncupatur Parliamentum Thus much of Accusation by Appeal which when any of the Lords accused others out of Parliament was summoned but God be thanked they are abolished 1 H. 4. c. 14. CHAP. III. The Parties Answer THe Party accused is to be brought to his Answer otherwise the whole Judgment will be erroneous as was Mortym 23 E. 3. Numb 10. and Spencer's 15 E. 2. and John Matrevers 21 E. 3. Numb 65. dors Although the Party be absent yet the Parliament hath used all means possible to have his Answer prout 21 R. 2. where the Lords Appellants and the Commons also accused Tho. Mortymer of Treason and the Commons said That it was notoriously known unto them that the King had sent his Mandate by W. D. a Serjeant at Arms unto the said Mortymer in Ireland commanding him upon his Allegiance to come before the King in all haste to answer c. And that the
said Mortymer having notice thereof withdrew himself among the wild Irish where the same Serjeant nor any other Officer of the King 's durst come for fear of Death Wherefore and for that his Offences are notoriously known both to the Lords and them they prayed Judgment c. The King the Lords and the Procurators of the Clergy considered of the Request of the Commons with good deliberation and then the Lords with the said Procurators by the assent of the King and Commons did award that Proclamation should be made through England and Ireland commanding the said Tho. Mortymer to render himself in proper Person to the King in what place soever it shall be in England within three Months after the 23th Day of December next coming to be at his Answer and they farther awarded That if he came not c. that then he shall be judged Traytor and Convict of of all Treasons whereof he is accused and shall forfeit c. Then the King adjourned the Parliament and the Appellants to the 15th of Hilary next at Shrewsbury on which Day the said Appellants declared to the King That it was awarded that Proclamation should be made c. ut supra The Commons did the like And for that the said Tho. Mortymer came not they had judgment In 7 H. 4. The Lords agreed this Judgment against the E. of North. and the Lord Bardolph who were fled to the Rebels in Wales and Proclamation ut supra throughout England At the day prefixed they examined the Returns of the Proclamations in the presence of the Commons and so the Judgment was agreed on in their presence also and so it ought to be in all Cases of Life and Death And finding a small Error they awarded new Proclamations in London only and the Return thereof was again viewed and considered in the presence of the Commons and then on the next day Judgment was given Eodem Anno 21 R. 2. The Lords Appellants accused also the Duke of Gloucester of Treason and although they knew he was dead they prayed the King that he might be brought to his Answer Whereupon the King sent his Writ to the Council of Calice unto whose Custody he committed the said Duke to bring him into the Parliament to his Answer The Captain returned his Writ That the Duke is dead the which Writ and Return being read the said Appellants prayed Judgment and the Commons shewed That the Dukes Levying War against the King's Person is notoriously known to all the States of Parliament and therefore they desired Judgment also and had it And what may not the whole Parliament do when they joyn in one Yet notwithstanding the King fearing some Error as it seems the Lords Appellants besought the King that if there were any thing on Record be it by Confession or otherwise which concerned their Appeal that it might be openly known and shewn in full Parliament Whereupon by the King's Commandment was read a Commission granted unto William Richal Justice of the Common-Pleas and a Confession of the Duke of Gloucester made before him by vertue of the said Commission yea and Richal himself being commanded did justifie that the Duke did write the Confession with his own hand in his absence and afterwards read it unto him so careful they were to have something to supply an Answer I marvel that Richal was acquitted of his Proceedings herein at the next Parliament of 1 H. 4. where he affirmed that much of this Dukes Confession was altered after he had returned his Commission He well deserved to die in that he spake not of it Yet there is one Precedent directly contrary to all this viz. 11 R. 2. in that Appeal which happened on this occasion The aforenamed Duke of Gloucester and four other Lords went to the King and accused the Duke of Ireland the Archbishop of York Michael de la Poole and others of Treason the King adjourned them to the next Parliament promising them Justice there and in the mean time conveyed away the Parties accused and then by Proclamation Part 8. fol. 603. in the next Parliament 11 R. 2. the Articles of the Appeal being read the Duke and other Appellants offered to make proof thereof and required that the Parties appealed might be brought to their Answers and for default of Appearance demanded Judgment Whereupon the King did deliberate with the Lords and commanded the Justices and other Sages of the Law to give their best Counsel to the Lords how to proceed rightly in this Matter of Appeal who after Consultation therein had answered the Lords That they had seen and considered the Tenor of this Appeal which they said was in no point made and declared according to the Order of the Common or Civil Law But they gave no Answer touching the Demand of Judgment for default of Appearance whereupon the Lords deliberated and after by the Lords assent declared that this Cause committed by the Peers against the Person of the King and State of the Realm shall be determined in the Parliament only and by no other Law than by the Law and Course of the Parliament And that it belongs to the Lords only to judge in such Cases And with the assent of the King they did judge the same Appeal and the Process thereupon depending to be good according to the Law and Course of Parliament Then the Lords Appellants proceeded and desired to have the fault of Appearance recorded and Judgment given and so it was So likewise 21 R. 2. After the King had given the full power of Parliament to determine all Matters begun into the Hands of twelve Lords or six and six Commoners or any three He adjourned the Parliament from Westminster to Shrewsbury in 15 Hil. and there on March 22. It was shewed to the King how that Robert Possington was impeached at the Parliament at Westminster for being with the Duke of Gloucester in levy at Herring An. 11 R. 2. For which the said Duke was adjudged as Traytor and therefore they brought the King to ordain the like Judgment against Robert Possington though he was dead Whereupon our Lord the King by the assent of the Lords and Knights of Counties having power c. awarded the said Robert guilty c. And that he shall forfeit c. But these extraordinary Precedents cannot lead us into the ordinary course of Proceedings and I alledge them only so as their Errors may be avoided § To conclude it is the just and constant Course of Parliament to bring the Party accused to his Answer yea though he fly Justice yet to send out Proclamations into the Countries that he appear at a Day or else such and such Judgments shall be given against him I confess this Course was omitted in the Judgment against Mompesson 18 Jac. and haply it was not then thought upon the Judicature of Parliament being so long out of use and therefore that cannot be alledged as a leading Precedent And in
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
Conferences wherein his Majesty by Testimony becometh a Witness and in case the Earl should be convicted his Commission cometh to the Crown c. he desired their Lordships to put his Majesty in mind thereof for the declining his Accusation and Testimony 9 Maij These Questions were proposed to the Judges 1. Whether in Treason or Felony the King's Testimony is to be admitted or not 2. Whether Words spoken to the Prince who afterwards is King make any alteration in the Case And the Judges were to deliver their Opinion therein on the 13th Day of the said Month of May. And on Saturday Morning being the said 13th Day the Judges were desired to deliver their Opinions The Lord Chief Justice said They appointed to meet and to consider thereof and Mr. Attorney desired to know the time of their Meeting and before that time he brought them a Message from the King viz. That his Majesty was so sensible of his Honour that he would not suffer the Right of his Crown which may justly be preserved to be dampnified in his time That they might deliver their opinion in any particular Questions concerning the Earl of Bristol but not in the general Questions whereof his Majesty could not discern the consequence which might happen to rhe prejudice of the Crown Every particular Case varying according to the circumstances 4 E. 3. The Articles were read against Roger Mortimer and it followeth thus Wherefore our Lord the King doth charge our Earls and Barons Peers of this Realm That forasmuch as these touch him principally and all the People of this Realm That you do unto the said Roger Mortimer right and lawful Judgment such as appertaineth to such an one to have who of all the faults abovesaid is very guilty as he believeth And for that the said things are notorious and known to be true unto you and to all the People of the Realm This was all the Proof produced against Roger Mortimer The Lords hereupon judged him But afterwards Anno 28 E. 3. Numb 10. they reversed it as erroneous so that although the King's Testimony confirmed by the common Fame was 4 E. 3. received against Roger Mortimer yet it was afterwards adjudged Nul Accusament in the 28th of the said King E. 3. In that Parliament of 18 Jac. divers Witnesses were examined in open House in the Causes of Mompesson and the Lord Chancellor upon Interrogatories agreed on beforehand and divers at a Committee And it was resolved That none might be examined upon any thing that might accuse Whereupon the Earl of Southampton one of the said Committee signified That a Scruple did arise Whether Sir Ralph Horsey should be examined what Bribe he gave to the Lord Chancellor and upon the Vote it was agreed he should dissentiente Comite Dorset Eodem Anno The Lords did find that the Testimony of divers of the House of Commons was necessary touching the Complaint against Mompesson and therefore sent a Message to this effect The House of Commons before their Complaint exhibited against the Lord Cobham and Doctor Feild for a Bribe concerning Egerton's Case 18 Jac. examined one Davenport but not upon Oath The Lords when they had examined Davenport found that the Case was not so foul as he related it unto the Commons and therefore sent his Examination again unto them and then punished him for his false Relation CHAP. V. The Judgment FIrst Unto whom the Judgment belongeth and the King's Assent and of the Presence of the Spiritual Lords the Commons and the Judges Secondly The Judgment it self and by whom it was demanded and by whom rendred In making of our Antient Laws the Commons did Petere the Lords Assentire and the King Concludere So in Judgments on Delinquents in Parliament the Commons might accusare petere Judicium the King assentire and the Lords only did judicare §. 1. That the Judgment belongeth only to the Lords appeareth by all the old Records that I have seen prout 4 E. 3. against Mortymer The Earls Barons and Peers did Award and Judge by assent of the King c. 7 H. 4. In the Case of the Earl of Northumberland Protestation was made by the Lords That the Judgment belonged unto them only For the clearing of this Point That the Judgment belongeth to the Lords only vide the Protestation of the Commons 1 H. 7. which excludes the Commons from any Right thereunto viz. On Monday Novemb. 3. The Commons made their Protestation in manner as they did in the beginning of this Parliament and then further declared to the King That no Record in Parliament be made against the Commons That they are or shall be Parties to any Judgment given or hereafter to be given in Parliament Unto which it was then answered by the Archbishop of Canterbury by Command of the King That the Commons are Petitioners and not Demanders and that the King and the Lords have ever had and of Right shall have the Judgment in Parliament in manner as the Commons themselves have declared saving in Statutes to be made and in Grants of Subsidies and the like though to be done for the common profit of the Realm the King will have especially their Advice and Assent And that this Order be held and kept at all times to come This excludes the Commons from all Right to Judgment But whereas it faith the Judgments in Parliament belong only to the King and Lords That is to be understood touching the King's Assent only as apppeareth by the Replication of the Parliament in this Point in 2. H. 5. which was thus In the Parliament at Leicester 2 H. 5. Numb 11. Tho. Earl of Salisbury Petitioneth to reverse a Judgment in Parliament against John Earl of Salisbury his Father in 2 H. 4. and one of the Errors assigned was for that the Judgment was not given by the King but by the Lords Temporal only whereupon the Earls of the Parliament at the King's Commandment gave Copies of the said Judgment of 2 H. 4. and of the said Errors assigned unto the Kings Serjeants at Law then present Ad sequentem solutionem Juris Regni in hac parte avisarentur Super quod Servientes ad Legem crastino die Domino Regi ac Dominis Spiritualibus Temporalibus praedictis hoc in Parliamento petierunt scrutinium pro Domino Rege in hac parte Quibus dictum erat ex parte Domini Regis Quod ipsi procederent ulterius absque aliquo scrutinio habendo quoad declarationem judicium super supradicta c. And afterwards Day was given at the next Parliament which was held at Westminster eodem Anno 2 H. 5. In which Parliament the said Judgment of 2 H. 4. being examined and discussed at full videbatur tam dicto Domino nostro Regi quam etiam Dominis suis antedictis c. quod idem Judicium Declaratio praedicta versus eundem Johannem c. sunt fuerunt bona legalia
Parliament The Chancellor Answered before the Prelates and Lords In Offences Capital In 4 E. 3. The Earl of Kent was brought before the Counts Barons autres Grandees and Nobles en mesme Parlement c. for Treason dors Numb 38. Eodem Anno The Articles of Treason being read against Mortimer the King charged les Counts Barons les Peeres de son Realme to give Judgment And Judgment was given per les dits Counts Barons Peeres come Judges del Parlement Item The King commanded les dits Counts Barons Assembled in Parliament to give Judgment on c. and so were four others tried in the same Parliament all for Treason and not one word of the Prelates either when the Articles were read or at the Judgment 6 E. 3. Numb 11 12. Post Festum Sancti Gregorii The Parliament being commanded to consult of the keeping of the Peace and Punishment for the breaking thereof the Prelates departed pur ceo que aviz fuit dits Prelates que ne attinet pas a eux consuler de guard de la Pees ne de chastisament de tiel yet afterwards when they heard what was ordained touching those Malefactors for the apprehension of them by Hue and Cry c. to bring them before certain Commissioners to be tried according to Law the Prelates gave their Consents also to the Act and added also Excommunication by the Assent of King Lords and Commons Anno 10 R. 2. The Commons prayed That such as gave up Forts puissent estre a respons cest Parlement Et selon leur desert puis per guard les Seigniors Baronage And thereupon John Gomeniz William Weston were brought before the Lords aforesaid in full Parliament c. It is to be understood before the Temporal Lords for the Bishops are never comprized in the Word Baronage Anno 11 R. 2. Divers Lords and others being appealed of Treason other misdemeanors the Prelates absented themselves during the Tryal having first made Protestation saving their Right to be present in Parliament Regni more solito considerare tractare ordinare statuere definire caetera excercere cum caeteris Paribus c. Verum quia in praesenti Parliamento de nonnullis materiis agitur in quibus non licet nobis juxta Canonum Sacrorum instituta quomodo libet interesse Eo propter pro nobis nostrum quolibet Protestatur quod non intendimus nec volumus sicuti de jure non possumus nec debemus nec intenditur nec vult aliquis nostrum in Parliamento dum de hujusmodi rebus agitatur vel agitur quomodo libet interesse sed nos nostrum quemlibet in ea parte penitus absentare Jure Paritatis nostrae cujuslibet nostrum interessend in dicto Parliamento quoad omnia singula ibidem excercenda juris eorum quilibet statu Ordine in omnibus semper salvo Ad haec insuper protestamur nostrum quilibet protestatur quod propter hujusmodi absentiam non intendimus nec volumus nec nostrum aliquis intendit nec vult quod processus habiti habendi in praesenti Parliamento super materiis antedictis in quibus nec possumus nec debemus ut praemittitur interesse quantum ad nos nostrum quem libet attinet futuris temporibus quomodo libet impugnentur infirmentur seu etiam revertentur This was read in full Parliament and enrolled at the Request of the Commons I mean the Prelates by the Kings Command and assent of the Lords Temporal and Commons Here the Protestation saith de jure interesse non debemus but I think it intends that they could not be present by reason of the common-Common-Law and by reason of an Ordinance made at the Councell at Westminster in 21. H. 2. By which all Clergy-men were forbidden agitare Judicium sanguinis upon pain to be deprived both of Dignities and Orders For surely as I think they might otherwise have been present both by the common-Common-Law and by the Law of God But by such their long constant absence even from our first Parliaments upon Record The Lords Temporal have only heard and determined all matters concerning Capital offences which hath continued in them so long that it is become their Right c. So that now it will be a wrong unto them the Lords Temporal if the Bishops do any way meddle with such Judicatures either touching the Answers the Replyes the Proofs or the Judgement For where they may not adjudg they may not do any thing as a Judge that doth conduce to judgment And therefore as heretofore they would be absent Now they cannot be present whilst the Matter is in hand but are to be absent altogether dum de hujusmodi materiis agitatur For some or other matter may happen to be Voted in their presence concerning the Answer Replication c. or concerning the Form of Judicature herein And by the Voices of the Spiritual Lords that Vote may pass against the major part of the Temporal Lords who should sustain wrong therein Can they be present and not Vote I know that at all Assizes and Sessions divers of the Clergy are present till Judgment be given in such Cases but their Presence cannot prejudice the Judge at the Assizes by Vote as in Parliament And at Sessions the Lay and Clergy are equally in Authority to hear and determine Eodem Anno 11 R. 2. A Special Act passed at the Request of the Commons to make good those Appeals and Judgments notwithstanding that the Spiritual Lords pur benefit salvatioun de lour Estate Cap. 3. in Parl. Roll N. 28. This Act I conceive was occasioned by the Clause in the said Protes 〈…〉 of the Prelates Ad haec insuper Protest 〈…〉 c. quod processus habiti habendi in praesenti Parliamento super Materiis praedictis in quibus nec possumus nec debemus interesse ut praemittitur quantum ad nos attinet futuris temporibus non impugnentur c. For there is no such Act to make good any former Judgment notwithstanding their Absence And 2 H. 5. Upon the Petition of the E. of Salisbury the King Lords Temporal adjudged the Judgment against his Father in Parliament 2 H. 4. to be good notwithstanding that it was rendred without the consent of the Lords Spiritual which yet the said Earl alledged as Error in his Petition so that by the Judgment of the whole House neither the Presence nor Absence of the Spiritual Lords in necessary in such Judgments In 21. R. 2. The first Petition that the Commons offered was That before this time many Judgments and Ordinances made in the time of the Kings Ancestors in Parliament have been repealed because the Clergy was not present in Parliament at the making of the Judgments and therefore they desired that the Clergy might make a Proctor with a suffici 〈…〉 to consent in their wants 〈…〉 Things and Ordinances to be done in this
have cognizance what was done touching the said Rebellions of Salop and elsewhere-within the Realm whereupon New Proclamations were made and the subsequent proceedings were done in full Parliament in presence of the Commons and the Record saith upon the Request of the Commons A Question hath been often asked Whether the Commons did heretofore sit at Conference with the Lords Which I cannot very well resolve but verily believe That at all these Arraignments the Commons did sit with the Lords 10 R. 2. Gomeniz and Weston were brought before the Lords and Commons sitting in the White Chamber The Words are Devant les Seignieurs avant dits en plein Parlement c. But the Commons are here intended by the Words en plein Parlement And so was the Commons Demand that they may be tried before the Lords No other Records speak whether they did sit or stand In Judgments on Misdemeanors The Presence of the Commons is not necessary unless they impeach a Delinquent prout 50 E. 3. And then they were present at all the Answers of those whom they Impeached and demanded Judgment And when the Lords had rendred their Judgment against the Lord Latimer to be prisoner with the Marshal and to make Fine and Ransom to the King the Commons prayed the King he might also be put out of all his Offices and especially from being Privy Councellor Which the King granted And when the Lords had determined one part of the Complaint of the Commons against William Ellis touching a wrong done to certain Scottish Merchants the Commons prayed a general Enquiry might be made of the Residue whereof they complained which the Lords granted And when the Lord Nevil Answered They required that one Richard Love might be examined to prove that which the said Lord denied and they departed but two of the Commons remained and heard the Examination and told the Lords That the said Richard had related it to the Commons otherwise the day before which the said Richard denied Then all the Commons came and justified it again and thereupon the said Richard Love confessed it and on their Demands was committed This shews what Interest they have in their own Impeachments So in 10 R. 2. When the Commons had Impeached the Lord Chancellor They were present at his Answer and so often Replied and enforced his Oath against him and required him to be Committed and so he was before Judgment but Bayled presently But if the Commons do only complain and do neither impeach the Party in Writing nor by word of Mouth in open House nor demand Trial to be in their Presence In these Cases it is in the Election of the Lords whether the Commons shall be present or not And therefore when they complained of Alice Peirce 10 R. 2. The Lords deferred her Trial until the Departure of the Parliament that is till the Commons had leave to depart And if the Commons presence be not necessary in such Cases where they complain much less is it wherein they complain not yet they have been present when they did not complain but that was upon an extraordinary Cause prout 7 R. 2. A Fishmonger exhibited his Complaint first to the Commons against the Lord Chancellor and afterwards to the Lords in Full Parliament in presence of the Commons But they were present no doubt at the Lord Chancellor's Request That he might clear himself in Publick of the Slander and so he did The Presence of the Judges In Cases Capital the Judges are to be present also otherwise it is not a Full Court but they have no Voyce And though there be divers Precedents that complain of the Prelates prout 21 R. 2. 2 H. 5. and this last of the Commons yet there is not one Precedent that finds fault with their Absence in these Cases for they are not tractare cum caeteris Magnatibus but cum caeteris de Concilio Here may be Objected that which Tresilian and other Judges answered to one of the King's Questions 11 R. 2. touching the Judgment of Michael de la Poole That the same Justices and Serjeants would not give the same Judgment because it seemeth to them that the same is irrevocable as erroneous to every part Vid. Print Stat. 21 R. 2. Tresilian was much mistaken as much as in the other Answers whereby he determined that to be Treason and so here he gave his Advice not his Consent And yet he saith he gave his Consent Read but a little further and you shall find in the very same place as followeth Which Questions and Answers as well before the King as before the Lords and Commons were read and perceived and it was demanded of all the States of Parliament how they thought of the Answer And they said They thought the Justices made and gave the Answers duly and lawfully as good and liege People of the King ought to do And in the same manner Sir Tho. of Shelton Learned in the Law and Will. Hawkford and Will. Beechley the King's Serjeants being demanded by the King of their Advice c. and my Lord Will. Thurning of the Common Pleas c. That the Declaration of Treason not declared belongeth to the Parliament And if he had been demanded he would have said in the same manner And in like manner my Lord William Rickill Justice of the Common Bench and after the coming of my Lord William Clopton Chief Justice he said thus Wherefore the said Answers be judged good and affirmed sufficient in the said Parliament Whereupon the King by the Assent of the Lords Spiritual and Temporal and the Procurators of the Clergy and the said Commons and by the Advice of the said Justices and Serjeants there being It was Awarded and Adjudged c. Here you see the Manner of the Judges Assent viz. their Advice only Nor shall you find their Assents to any Statute yet the Judges have ever used to be present at the Trials in Parliament upon Life and Death 5 H. 4. The King delivered the Earl of Northumberland's Petition to them And at the Trial of any Peer out of Parliament the Judges are ever present on that Day and their presence is necessary for their Counsel to the Lords but their Assent is not necessary to the Judgment §. The Manner how the Lords resolve on their Judgment How this was Anciently appears in the Appeals 21 R. 2. Touching the Death of Simon Burley viz. It was demanded of every Lord who was present at the said Parliament his Advice of the said Simon touching his Crime Eodem Anno in the Print Stat. 21 R. 2. The Judges Opinions were demanded in the same manner beginning with the Serjeants c. and so ascending to the Chief Justice And at this Day the Question is put by the Chancellor or Lord Keeper and the puisne Baron answers first Content or not Content and so the Lords in Order But their Lordships do first debate the Judgment amongst themselves and the
Question is out of that which seemeth to be most generally agreed on In the Judgment it self is to be considered First Whether it be ultra Legem Secondly By whom to be Demanded Thirdly By whom to be Rendred Touching the First Judgments in Parliament for Death have been strictly guided per Legem Terrae otherwise they would not have judged the Earl of Kent the King 's own Unkle to be Hanged Drawn and Beheaded might it be left to their Discretion Vide Literas E. 3. to the Pope speaking of this Earls Judgment by the Parliament for Treason Cui Sententiae subductis tamen quibusdam opprobriosis in detestatione tanti Sceleris de Rigore Legis nostri Regni infligenda erat Dolentes acquievimus 4 E. 6. But the Roll is lost The Lords judged Mortimer to be Drawn and Hanged as a Traytor 4 E. 3. Simile pro Simone de Bereford N. 2. Ibidem Numb 3. They judged John Matrevers to be Drawn Hanged and Beheaded 10 R. 2. Weston adjudged a Traytor for delivering up of Castles Forts c. And so Jo. Lord Gomeniz a German was adjudged to die but because he was an Alien and a Baronet and was not the King's Liege-man he should be Beheaded That being the Death used in Germany to Gentlemen 10 R. 2. Simon de Burley the Earl of Arundel and others were Adjudged to be Hang'd Drawn and Beheaded for Treason They differ something yet herein they agree That the opprobrious Death of a Traytor is to be Drawn and Hang'd which the Parliament could not alter no not in their Judgments against the King 's own Unkle It was per Legem Regni infligenda The King might pardon all and usually did except Beheading of the Nobility of his own Blood and of later Times to all Noblemen As the Parliament could not dispence with nor omit any part of the Judgment on Traytors so they could not add more than the Law required And this may appear by their Judgments of Forfeitures of the Parties Estate The Parliament 4 E. 3. spoke nothing what Mortimer should forfeit to the King He well knew the Law could give the King all his Lands in Possession Reversion or Service Vide The Restitution of 28 E. 3. Numb 10. The Ordinances in 50 E. 3. Numb 45. against Women which shall make suit c. to the King against Alice Peirce by Name is Upon pain of as much as she can forfeit and to be banished But had it not been for the former Ordinance the Lords would not have given any such Judgment against her Her Offence being only for procuring Favour to her Friends from the late King contrary to a former Order of Council 11 21 R. 2. The Lords Adjudged the Forfeitures to the King of some Convicted on the Appeals greater than the Law will give but they passed Special Acts in each Parliament to Confirm both the Judgments and Forfeitures 1 H. 4. The Lords Adjudged and Declared the Earls of Kent Salisbury and others to be Traytors and to Forfeit Numb 30. as the Law of the Land willeth 7 H. 4. They Adjudged the Earl of Northumberland and Lord Bardolph to Forfeit for Treason all their Lands in their own Demesne or where others were seized to their Use. And so in Fines and Amerciaments the Judgments anciently were indefinite prout 42 E. 3. Numb 26. John at Lee is Committed to the Tower there to remain till he hath paid Fine and Ransom to the King and at the King's will and pleasure 50 E. 3. He is Awarded to Prison at the King's Will and to be put to his Fine and Ransom according to the quality of his Trespass who being brought before the Lords they told him his ill Deeds were so great that he had not wherewith to make satisfaction and he submitted to the King's Grace and the Lords Awarded all his Goods to be seized and his Body to be in Prison at the King 's Will. Eodem Anno The Lord Latimer to make Fine and Ransom at the King's Will Numb 28. Item William Ellis the like Num. 28. John Peecher the like Num. 33. Cavendish Awarded 7 R. 2. to pay Dammages to the Chancellor and to remain in Prison until c. and the King de Fine suo competenti sibi inde debito but not set down how much to the King These Fines were not put in certain for that the Law limits them to the King's Will But not doubt but after the Judgment the Lords did rate them as may be gathered out of Richard Lyons where after Judgment they called him before them to consider it seems at what Rate to Tax the same And they found it not sufficient And in Ancient Court-Barons the Amerciaments were ever offered after the Presentments In the Star-Chamber all Fines were usually mitigated after the Censure and that Court had Antiqua Vestigia Magni Consilii I hold that anciently the Fines were often Rated or Taxed And if the Lords may mitigate a Fine à Majore they may Tax it after the Judgment the Certainty not being then specified Judgments for Satisfaction In Complaints of Extortion and Oppression the Lords Awarded Satisfaction to the Parties wronged which sometimes was certain sometimes general but always secundum non ultra Legem 42 E. 3. Numb 18. Full Restitution was made unto William Latimer of the Wardship and Marriage of the Heir of Sir R. Latimer whereof he was outed by Duress by John at Lee. But this was done by a great Councel per Commandment du Roy after the Judgment William Ellis 50 E. 3. Awarded to pay to Botheil and Cooper 20 l. apiece for their Damages Num. 25. John Peecher Num. 23. Awarded que il face yeulx a les parties Compl. de lui pour les extortions issint prizes Jo. Nevile Num. 34. is Awarded to make Restitution to the Lady Ravensholme in Certainty for an Oppression done to her whereof the Commons complained 7 R. 2. The Parliament referred the base Accusation of Cavendish against the Lord Chancellor to be heard and determined by the Justices in such sort as if the Parliament had determined the same And the Justices adjudged him convict of Slander and that the Lord Chancellor should recover his Damages which they Taxed at 1000 Marks and that he be imprisoned until he had satisfied the Chancellor and the King pro Fine competenti sibi inde debito The Iudgment against Alice Peirce Anno 10 R. 2. was That if she had purchased any Lands by Force or Duress soit il pur Fine or Deed en pais or Deed enrolled or otherwise that her Purchase be held for none and the parties who hold themselves aggriev'd have their Process against her in Chancery By Advice of the Grand Councel Let Right be done to the Parties and Restitution made according as the Case requireth so as the Purchase made bona fide be not undone or annulled any way References to the Common Law Nor could the Lords judge any Complaint of
preist with the King Anno 50 E. 3. Numb 28 29. The Lord Latimer is Awarded to prison destre en guard du Marshal and afterwards upon Mainprise of diverse Earls suffered to go at large So it seemeth that first he was Committed and delivered to the Earl Marshal immediately Primo R. 2. William Fitz-Hugh was Committed to the Tower but it appeareth not who carried him thither At this Day the Lords have used to impose some Corporal punishment on Misdemeanors prout Flood And at this Day if a Peer be Committed to prison the Gentleman Usher hath the Charge of him thither and the Serjeant attending on the Great Seal prout Anno 18 Jac. 16 Febr. The Earl of Berks was sent to the Fleet by the Gentleman-Usher for forcibly thrusting the Lord Scroop in open House Anno 21 Jac. 13 Maii. The Earl of Middlesex was Committed to the Tower and a Warrant given to the Gentleman Usher to carry him thither Anno 1 Car. 1. In the Parliament begun 6 Febr. The Gentleman-Usher was commanded to bring the Earl of Bri-Bristol But if a Commoner be Committed the Serjeant at Arms attending on the Great Seal doth usually carry him to prison and he also hath the Charge of him and to see any Corporal punishment inflicted on him Anno 18 Jac Wright and two Serjeants at Mace who had Arrested a Servant to the were Censured to ride with Papers on their Heads for their wilful Contempt and Scorn of the Priviledges of Parliament And for that the Serjeant at Arms did not see the whole punishment Executed on them he himself was Committed CHAP. VIII For Recovery of Damages or Restitution of the Party aggrieved ANno 50 E. 3. Botheil and Cooper had each of them twenty pounds Awarded for their Damages and it is not there declared how they should recover the same In the same year John Lord Nevile upon Complaint of the Commons is awarded to make Restitution to the Executors of the Lady Ravensholme neither when the same is to be restored nor the manner how the same shall be recovered is declared In those two Cases I conceive the Parties are to have their Remedy the Parliament being ended in the Chancery and not in any other Inferior Court at the Common Law But the Lords in Parliament may direct how it shall be Levied Anno 1 R. 2. The Lords adjudged Alice Peirce to forfeit all her Lands and Goods to the King and notwithstanding this Forfeiture If she hath purchased any Lands by Force or Duress it shall be void and the Party grieved to have his Remedy by Process in the Chancery and by Advice of the Lords of the Councel Let Right be done and Restitution made Anno 7 R. 2. John Cavendish was awarded to pay 1000 Marks to the Lord Chancellor for his Damages and to remain in Prison until he had paid it FINIS Peers to render Judgment on Peers Quite contrary to the Law of the Land How Bishops are tryable The nature of the offence In whnt Cases c. Of Judgments on Delinquents Four manner of Accusations in Parliament Complaints by Petitions Petition Respons Answer Answer Impeachments of the Commons Observe Observe Mortymer and Cobham William de la Pool Duke of Suffolk impeached General Fame Lord Visc. St. Alban Chancellor accused who was Sir Francis Bacon Accusation Ex parte Domini Regis Of Accusation by Information Ex parte Domini Regis The Judgment defective in all points The Lord Berkley arraigned waved his Peerage Quest. Resolv Observ. The Earl of Bristol charged with Treason Articles against the Duke of Buckingham Quest. Resolve 1. Observ. A Petition The Lords cannot impeach any to themselves A great Oppression * Promâ—oter The Fishmonger contra L. Chancellor The Chancellors Answer The Chancellor acquitted The Fishmonger guilty of the Defamation Bish. Williams Lord Keeper The History of the Appeal of 11 R. 2. The Lords cannot proceed against a Commoner but upon complaint of the Commons Appeals abolished per Stat. 1 H. 4. c. 14. An Answer required though the Duke was known to be dead Found guilty long time after he was dead so forfeited his Estate The Party accused to be brought to his Answer Touching Councel In Misdemeanor the Party may have Councel to answer The Mayor and Commonalty of Cambr. accused The Parl. hath compelled a present Answer iu Misdemenors and without Councel The Replication next which belongs to him or them that sue Impeachment against the L. Latymer His Answer His Answer to each Particular W. Ellis impeach'd His Answ. The Reply The Lord Nevile impeach'd Witnesses Witnesses by the Commons A Committee for Trial of Alice Peirce George Duke of Clarence arraigned No man questions the Duke but the K. none answers the King but the Duke Against Law that the King should enforce Testimony against a Delinquent A Royal wise Answer The Commons accusare petere Observe In what Cases the King's Assent is necessarily required Peeres de la terre A bold Saying This Duke of Glouc. was many years after imprisoned for this at Calice there died in his Bed In Judgment on Misdemeameanors the King's Assent is not required The Lords Spiritual In Cases of Misdemenor they may be present In Cases Capital may not be present The Protestation of the Bishops forever Observ. No exceptions taken for the Absence of the Prelates Note especial The Presence of the Commons in Cases Capital The Presence of the Commons not necessary The Presence of the Judges How the Lords resolve on their Judgments Judgm for Satisfaction Touching the Demand By whom Judgment ought to be rendred The Precedents of Life and Death Obj.
that whereas he being Chancellor was bound by Oath to further the King's Profit and Commodity in all things He notwithstanding contrary to the said Oath and not regarding the King 's great necessity had purchased of the King Lands and Tenements to a great value procuring the same by reason of his Office to be Surveyed at an under value 2. Item Whereas at the last Parliament nine Lords were appointed to see and examin the State of the King and Realm which being done and their Advice delivered to the King as well by word as writing by what means the same might best be remedied The Chancellor promised in open Parliament that the same should be put in Execution which was not done through his default he being a Principal Officer 3. Item Whereas the Subsidy granted the last Parliament was appointed by the assent of the King and Lords in what sort it should be expended and not other ways employed in this was his default he being Principal Officer 4. Item Whereas John Tidman had a certain Annuity from E. 3. which he had since forfeited and the payment thereof was discontinued for the space of 20 or 30 years The said Chancellor knowing this purchased his Interest and procured the King to confirm the same unto him c. 5. Item That whereas the great Master of St. Antony being a Schismatic had thereby forfeited to the King all his Revenue within this Realm the same Chancellor had taken the same to Farm of the King for 20 Marks And whereas the Master should have livery thereof again he could in no wise get the same until he had bound himself to pay 100 l. yearly to the Chancellor and his Son 6. Item That during the time of his Chancellorship there had passed divers Charters of Pardon as well for Murders Treasons and Felonies as also for rasing of Rolls and imbezelling of Laws and Records and especially since the beginning of this Parliament a Charter of Franchises was granted to the Castle of Dover to the disinheritance of the Crown and to the Subversion of all the Places and Courts of the King and his Laws 7. Item That at the last Parliament divers Sums were allotted for the defence of the Town of Gant notwithstanding the same Money was lost c. by his default c. Of all which Articles the Commons demand Judgment of the Parliament c. I have been long upon this considering all the Precedents follow at large These are the most formally set down of all the Accusations hitherto of the Commons yet most of these are very general and uncertain Howbeit the Chancellor took no exceptions to the insufficiency thereof but answered to every particular The next Accusation of the Commons is 11 R. 2. in the 21. of the King they accused divers of those whom the Lords had first appealed whereof when we speak of all Appeals Anno 21 R. 2. the Commons accused and impeached of Treason the Archbishop of Canterbury Numb 15. and demanded Judgment against him and had it Numb 16. Eodem Parl. The Commons accused and impeached of Treason Tho. Mortymer and John de Cobham a Baron of Parliament and had Judgment against them both Anno 28 H. 6. William de la Pool Earl Marshal and Duke of Suffolk was accused and impeached by the Commons in manner following viz. The Duke being the great Favorite of the King and Queen the common People laid all the fault of the evil Government on him and made Ballads thereof which I have seen taxing his Loyalty to the King The Parliament of 28 H. 6. begun the 6th of November and held to the 6th of December and was then Prorogued to the 22th of January The Duke of Suffolk whether provoked by the Ballads then made on him or by some Speech in the House of Commons whereof nothing is recorded did require of the King that he might be specially accused and be heard to answer for that many reported him to be an untrue man and he made a solemn Protestation of his Loyalty wherein he sheweth that his Father and three of his Brethren died in the Service of the King and of his Father and Grandfather That he himself had served 34 years in the Wars being then but a Knight That he had been taken Prisoner and paid 20000 Marks for his Ransom That he had been 30 years of the Order of the Garter Chancellor to the King 15 years and had been 17 years in the King's Wars without returning home And he prayed God so to pardon him as he had been true to the King and required his Purgation Numb 14 15. Whether this was sent to the Commons or what notice they had of it appears not but on the 2th of January the Commons required the Duke might be committed to Ward for his own Confession for that as I concieve he himself confessed That the general Fame went of him And the Lords on Consultation of the Justices thought the same to be no good Cause of Commitment unless some special Matters were objected against him Numb 16. On the 28th of January the Speaker declared to the Lords how the Duke of Suffolk as it was said had sold this Realm to the French who prepared to come hither And that the said Duke for his own defence had furnished Wallingford Castle with all Warlike Munition And then on request the Duke was committed to the Tower On the 7th of February the Chancellor and some other Lords were sent by the King to the Commons a thing not usual but wherefore they were sent is not expressed happily to be informed what they could say against the Duke or to reconcile the business But the Commons delivered to this Chancellor and those other Lords a Bill of Articles against the Duke wherein they accused him of divers Treasons viz. For intending to marry his Son to the Heir of the Duke of Somerset and thereby for want of Issue of the King to claim the Crown For practising with the French c. Numb 18 19. and they require Prosecution against him Numb 17. March 19. The Commons delivered another Bill of less Offences against him Numb 28 29 30 c. requiring those Articles also to be inrolled and the Duke put to his answer These before recited are all the ancient Precedents I find recorded the following are of later times Anno 1 Jac. The Commons accused and impeached by word of Mouth Sir Giles Mompesson and Sir Fr. Michell Knights for many Oppressions done to the People They impeached them to the Lords at a Conference and afterwards delivered their Declaration against them First Concerning a Patent for Inns and Osteries Secondly A Monopoly for Gold and Silver Thread Thirdly Concerning a Patent of Concealments Eodem Parl. They accused Francis Lord Viscount St. Alban at a Conference of Bribery and Corruption in his Office of Chancellor They delivered no Writing but a Committee of the Lords having considered the Proofs and drawn up
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-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
private persons where the party might have his Remedy at the Common Law prout Botheil Cooper Anno 50 E. 3. accused William Ellis for extorting 17 Nobles from certain Merchants at Pruse and also for their wrong Imprisonment by the false Suggestion of William Ellis to the King And the Lords referred the taking of the 17 Nobles to the Common Law But upon the Examination of the Imprisonment it was proved That Ellis did write his Letters to one of the King's Bed-Chamber falsly suggesting against Botheil and Cooper which Letters were shewn to the King his Majesty then commanded them to be Committed This the Lords expounded to be false Suggestion in Ellis The King himself judged him for the same Had that Point been cleared in the Statute of False Suggestions haply the Lords would have referred it to its proper place So also Anno 5. E. 2. The Lords referred the Accusation of Clingdon to be Tried at the Common Law Secondly Touching the Demand That verily belongs to the Party at whose Suit it is To the King's Councel for the King if the Articles were de part le Roy and to the Commons against an Impeached Delinquent By whom Judgment ought to be Rendred It appeareth plainly by many Precedents That all Iudgments for Life and Death are to be rendred by the Steward of England or by the Steward of the King's House and this is the Reason why at every Parliament the King makes a Lord Steward of his House though he hath none out of Parliament And at such Arraignment the Steward is to sit in the Chancellor's place And all Judgments for Misdemeanors by the Chancellor or by him who supplies the Chancellor's place CHAP. VI. The Precedents for Life and Death ANno 10 R. 2. John Lord Gome 〈…〉 and William Weston were brought by the Constable of the Tower before the Lords in Full Parliament sitting in the White Chamber where they were severally Arraigned at the Commandment of the Lords by Richard le Scroop Chief Steward of the House of our Lord the King in manner following Here the Lords commanded the Arraignment of certain Earls Peers of the Realm They did not appoint the Steward to do it It belonged to his Office Anno 20 R. 2. Thomas Haxey was Arraigned of High Treason before the King the Lords and Commons in full Parliament in Alba Camera by the Duke of Lancaster Seneschallum Angliae and the Judgment rendred by him Anno 21 R. 2. All those Judgments on the Appeal were rendred per Seneschallum Angliae The Records of E. 3. and H. 4. are silent herein by whom the Judgment was rendred It may be Objected That Anno 5. H. 4. The Lord Chancellor kept his place at the Trial of the Earl of Northumberland because he did deliver the Opinion of the Lords That could not properly be called a Trial for it was upon the Earl's own Petition And if it were resolved whether it were Felony or Treason it should have been done by the Steward sitting in the Chancellor's place Neither doth it appear by the Record that the Chancellor kept his place though he afterwards delivered the Opinion of the Lords So likewise Anno 1 Car. 1. Febr. 6. The Lord Keeper kept his place when the Articles of Treason were read against the Earl of Bristol but he did not Arraign him Then they were read and his Answer heard by the appointment of the House and some Witnesses examined also to the end they might understand the true Nature of his Offence and then to declare how and in what manner to proceed against him for the same The Spiritualty did not deliver their Opinion therein To conclude All Records that are which mention by whom the Delinquents in Cases Capital were Arraigned do say that it was by the Steward of England or of the King's House And in remembrance of this a Lord Steward is appointed at every Trial of a Peer of Parliament Touching Judgment rendred by the Chancellor in Cases of Misdemeanors it is needless to recite any Precedents only this I will say The Chancellor never gave Judgment on Life and Death and the Steward never on Misdemeanors And though there be Precedents of Judgments given by the Steward of England in Parliament prout 20 21 R. 2. yet I have seen none of the Judgments on the Peers rendred by the Steward of the King's House And the reason may be for that there was anciently a Seneschallus Angliae Quaere tamen whether the Steward of the King's House being a Peer may give Judgment on a Peer or not I think he may if there be no Steward of the House constantly made every Parliament though but during the Sessions The last Considerable Thing in Judicature is CHAP. VII The Execution of the Judgment ANd first in Capital Offences I have seen but two Precedents thereof in the Parliament-Rolls The First is 4 E. 3. Which begun on Monday after the Feast of S. Katherine There were long Articles exhibited against Mortimer for Treason and he was adjudged to die for Treason and thereupon saith the Record Commandment was given to the Earl Marshal to Execute the Judgment and also to the Mayor Aldermen and Sheriffs of the City of London and to the Constable of the Tower and likewise to them who had the Guard of the said Mortimer to be aiding to the said Earl Marshal to do the said Execution The which Execution was done and performed upon Thursday next after the first Day of the Parliament which was the 29th Day of November Ibidem Num. 2. Judgment was given on Simon de Bereford to be Drawn and Hang'd And thereupon it was Commanded that the Marshal should do Execution near the Tower of London And the said Earl of Arundel was Beheaded ou the same Day The Earl of Nottingham one of the Lords Appellants was Lord Marshall at that time and therefore his Deputy did Execution Item The Earl of Warwick being adjudged to die the King did pardon the Execution and granted him his Life viz. That he should remain in perpetual prison out of England in the Isle of Man c. And that he be at Sea on his passage before the end of one Month. And thereupon he was delivered to Monsieur William le Scroope and to Monsieur Stephen his Brother to bring him safely to the said Isle of Man c. The Earl Marshal was Commanded to Execution on a Peer and the Marshal on a Commoner The Command no doubt issued from the Lords with the King's Assent herein Thus much touching Execution quoad Mortem In Misdemeanors the greatest Corporal punishment hath been Imprisonment I find no other in Ancient Parliament But who was the Officer to carry the Delinquent to prison is not Recorded save he to whose Custody he was Committed prout 42. E. 3. John at Lee was Committed to the Tower Et dit fuit al Monsieur Alley de Buxhill Constable de la Tower que il
and that they are notorious and known for truth unto the Lords and all the People of the Realm And the Lords also having examined these Articles said all these things contained therein are notorious and known They speak not a word of any one witness examined or any other proof then the common fame For this Cause and for that the said Earl was not brought to Judgment nor to answer but condemned unseen and unheard upon common Fame only without any legal Proof The whole Parliament did very justly Repeal the said Judgment and Record declaring it to be erronious and defective in all points And the Lords were willing to damn the whole Record in all points least haply it might be alledged against themselves another time for Precedent Anno 15. E. 2. The Lords and Commons joyned in the Accusations against the Spencers and for that the Lords had no Record in their own pursuit upon the Cause contained in their award and they ought not to be their own Judges c. having been Accusors no exceptions were taken to the Articles but other Errors assigned quod vide where it is said to be sans Accusament so that they repealed it not for that there was no Accusation but for that he was not brought to his Answer Again That those words Sans accusament should simply signify no Accusation is only the Averment of the Petition The Judgment doth not say that there was no accusation but that it was erronious in all points And so it was no proof being produced but common Fame to prove the Answer And this first error bred a second I do not well understand the meaning of these words Sans accusament That a Peer ought to be Indicted for Capital offences in Parliament But having perused all the Judgments I do not find any one Peer indicted in Parliament In 11. R. 2. Numb 7. All the Lords Spiritual and Temporal claimed as their liberty and franchise that the great matters moved in this Parliament and to be moved in other Parliaments in time to come touching the Peers of the Land ought to be admeasured adjudged and discussed by the course of the Parliament and not by the civil-Civil-Law nor by the Law of the Land used in the more base Courts of the Realm which the King granted in full Parliament eodem Anno Rot. Appeal 290. This is said to be their ancient custom viz. To be adjudged according to the use of the Parliament only Then no Peer can be indicted in Parliament for that it is contrary to the use of Parliament Let this suffice for the confession and rectifying mine own former Error herein But a Lord of Parliament may be indicted out of Parliament and by the Kings command proceeded against in the next Parliament upon the same indictment as in these Subsequent In the same Parliament the Lord Berkley was arraigned for the death of Ed. 2. and whether out of his humility or otherwise he waved his Peerage and put himself on the Tryal of his Country the Articles against him though not expressed but by the Inference out of his Arraignment are for the murder of King Ed. 2. at Berkley Castle in the County of Gloucester unto which he answered that he was then sick at Bradley in Worcestershire and pleaded not guilty of the death of the said King Et de hoc de bono malo ponit se super Patriam The Precedent shall hereafter be added at large It begins thus Placita Coronae tenta coram Dom. Rege Ed. 3. post conquestum Angliae in pleno Parliamento suo predicto Et allocutus de hoc quod cum Dominus Edwardus nuper Rex Angliae Pater Dom. Regis nunc in custodiam Thomae cujusdam Johannis Matrevers extitit deliberatus ad salvo custodiendum Castro ipsius Thomae de Berkley in Com. Gloucester in eodem Castro in custodia ipsorum murderatus extitit interfectus qualiter se velit de morte ipsius Regis acquietare dicit c. Numb 16. Then follows his Answer Here the cause why the Lord Berkley was tryed is mentioned but the Articles objected against him and by whom he was accused who questioned him whether the Chancellor or Steward of England or who else All these circumstances are omitted It appears not I say in what manner this crime of the Lord Berkley was presented to the Lords whether by the former general Information against Mortimer autres de la Covyn or by some such Particular Information against him alone which I rather believe Some such Information there must be of necessity else how could he be question'd for his crime in Parliament But here it appeareth that the Lords brought him to his Answer which they omitted to Mortimer and in that Point their Proceedings against Mortimer were erronious And had his manner of Accusation been erronious also No doubt but the Lords would have avoyded that error now against Berkley The manner how Berkley was arraigned here in pleno Parliamento is explained in the Precedent of 1 R. 2. Gomeniz and Weston who were brought Prisoners by the Constable of the Tower before the Lords in full Parliament sitting in the white Chamber where they were arraigned at the commandment of the said Lords in full Parliament by Sir Richard le Scroop Knight Steward of the Kings House The words full Parliament signify the Lords and Commons For that Record saith the Commons prayed that all such that have surrendred any Forts c. might be put to their Answer before the Lords and Commons c. Whereupon they were brought to their Answers in full Parliament for that Offence So here I conceive the Lord Berkley being accused by the King for the murder of King E. 2. was brought before the Lords and Commons For the Commons are to be present at such arraignment as shall be shewn hereafter and the Clerk of the Crown having read the Accusation against him Allocutus fuit That is the Lord Steward of England recited the Fact whereof he was accused and demanded of him how he could acquit himself This I conceive to be the manner thereof Vide the Appeals 21 R. 2. for the form thereof I marvel the Lords permitted the Lord Berkley to wave his Peerage and put himself super Patriam Anno 4 R. 2. Sir Ra. Ferrers Knight was brought into Parliament under the guard of the Marshal of England and there arraigned on the Kings behalf for suspition of Treason c. Numb 21. In the Process against him is recorded that for suspition of Treason surmised against him he was arrested in the Marches of Scotland by Monsieur de Lancaster and other Lords Temporal there being in the said Marches and that he was brought under the said Arrest by commandment of the Lords to Answer in this Parliament to that which shall be surmised against him in special concerning certain Letters which were found and sent to the King and his Councel The Letters
were also recorded and read in Parliament Numb 17. 18 19 20. but the Information exhibited against him whereupon he was arraigned is not recorded It is only said He was arraigned Ex parte Domini Regis §. 3. Here might be two Questions First Whether was this Sir Ra. Ferrers legally brought to his Answer in Parliament by the commandment of the Duke of Lancaster and those other Lords who were then with him in the Marches of Scotland Secondly Whether he being no Baron or Lord of Parliament for he never had Summons might be legally arraigned in Parliament for life and death upon an Information Ex parte Dom. Regis which is contrary to the Law as was resolved in Parliament 4 E. 3. Numb 2. and 6. For resolutions of these doubts I am of opinion that the Duke of Lancaster might send Sir Ra. Ferrers to the Parliament because it was then sitting and might examine the Treason whereof he was suspected though they could not proceed to Judgment against him without the Commons he being a Commoner and not their Peer And it fell out in the Examination of this business they found the Letters to be counterfeited and so he was acquitted thereof And so far their proceeding was not illegal For the Parliament may entertain and examine any Cause and then direct the Judgment thereof to its own proper Court if it belong not unto them as they did in 5 R. 2. Numb 43. 44. Here Sir William Cogan Knight being accused by Sir Richard Clurdon of matter sounding to Treason After the Lords had heard the Cause they remitted both the parties to the Common-Law And in this Case of Sir Ra. Ferrers if they had found he had been guilty they might have proceeded to Judgment against him according to the Precedent of Sir Tho. Mortimer in 2 H. 4. who was indicted in London and the Indictment returned into the Chancery and thence brought into the Parliament where the Commons affirmed the same and prayed Judgment against him Anno 2 H. 4. The Lords Temporal gave Judgment on one Tho. Holland Earl of Kent John Holland late Earl of Huntington John Mountague late Earl of Salisbury the late Lord de Spencer and Ralph Lumley who were beheaded in a War they had Trayterously raised against the King This Judgment is entred but not the Information Ex parte Dom. Regis which is necessary to be understood for had it been omitted his Son Thomas would without doubt have assigned that for one of the errors in his Petition to reverse the said Judgment 2 H. 5. apud Leicester which he did not though he assigned for an Error That his Father was put to death without an accusation In the Parliament begun at Westminster Feb. 6. 1 Car. 1. and continued until June 25. Anno 2. ejusdem Regis John Earl of Bristol was charged with High Treason in this manner viz. Primo die Maii. The said Earl of Bristol being brought to the Bar and kneeling till the Lord Keeper wished him to stand up The Lord Keeper told him he was sent for to hear his Charge of High Treason And Mr. Attorney General being at the Clerks Table began to open his Charge but being interrupted by the said Earl who with much importunity exhibited Articles against the Duke of Buckingham then present which as he said he conceived to be Treason and required of the Lords that his Testimony against the Duke and the Lord Conway against whom he then also delivered Articles might not be made invalid no more then the Charge against himself which he affirmes was procured by the said Duke yet notwithstanding the head of the Kings Charge were opened against him by Mr. Attorney and then the said Articles against the said Duke and against the Lord Conway were read And it was ordered by the Lords of the Parliament that the Kings Charge against the said Earl should be first heard and afterwards the Earls Charge against the Duke c. But yet so as the Earls Testimony against the said Duke be not prevented prejudiced hindred or impeached Secundo die Maii. The House was moved that the Earl of Buckingham might be indicted according to the Stat. of 35 H. 8. the Treasons committed being beyond the Seas as was objected and that being certified to both Houses they to proceed against him by Tryal of Peers But their Lordships did not resolve on the manner of proceeding Then the Houses were moved that Mr. Attorney might provide an Indictment against the said Earl to be returned to the House on Saturday next Maii 6. And if he doubt of the Form to confer thereof with the Judges And if any great difficulty appear to resort to their Lordships and acquaint them with it And it was ordered that Mr. Attorney proceed with the preparation but the Houses not to be concluded at their next meeting on Thursday And the Sub-Committee for Priviledges c. to search for Precedents in the mean time Die Jovis Maii 4. The Sub-Committee for Priviledges reported one onely President viz. the Tryal of the Earl of Northumberland 5 H. 4. which the Clark read unto them out of the Parliament Roll of that year Whereupon after long debate It was ordered first that Mr. Attorney prepare the heads of the Charge against the Earl of Bristol and to bring them in on Saturday next Secondly The Earl then to receive his Charge at the Bar. Thirdly That when the Earl hath heard his Charge the Lords will determine when he shall Answer But he is not to be inhibited if he will Answer presently Fourthly The Cause of the Earl of Bristol is to be retained wholly in this House After the Earls Charge is brought in and his Answer then their Lordships to proceed to hear Mr. Attornies proofs amongst themselves and then to put the Cause into a way of Proceeding in this House Die Sabati Maii 6. The Lord Keeper shewed how Mr. Atturney desired that in regard the House hath already heard the nature of the crimes objected against the said Earl of Bristol That the Clark of the Crown in the Kings Bench may attend the reading of the Charge here according to a Precedent of former times which was denyed in regard the Clark of the Crown in the Kings bench is no Minister of this Court And also for that it was ordered May 4. that this Cause was wholly to be retained within this House The said Order being read the Earl was brought to the Bar and the Lord Keeper commanded Mr. Attorney to read the Charge against him who read the same out of a Parchment ingrossed in Court-hand and signed by himself Ro. Heath It containeth diverse Articles of High Treason and other great Enormities Crimes Offences and contempts committed by the said Earl c. prout postea Thus much touching the Charge against the said Earl by Information in the Kings behalf A Question was demanded of me and others in private the last Parliament