of their not Judging Commoners is apparently proved by the constant practice of the House of Peers in all succeeding times And one thing more would be taken notice of in the Proceedings of the House of Peers at that time after their precipitate and Illegal Condemnation of those Persons without ever calling them to answer The Earl of March a Peer of the Realm was condemned and executed as well as the Commoners and this was looked upon as a President of ill Consequence for the Peerage and therefore they would have a Law to prevent it and that the Nobles of the Land should not be put to answer but in open Parliament by their Peers which they long endeavoured before they could obtain it So as in 15. Ed. 3. n. 6. they adjourned the Parliament severall dayes upon that point and at last appointed four Earls four Bishops four Barons to draw it up into form and got it passed into an Act but two years after the King got that Act to be repealed And so far they likewise took care of Commoners in that Parliament of 15. Ed. 3. as to have it enacted also That no man should be impeached by Commandment without process of Law These were Acts of Parliament and Laws which did bind but the other of their judging none but Peers was a meer particular Order of the House an Agreement betwixt the King them which was no wayes binding to posterity and alterable still at pleasure by the same House that made it Another Battery raised by that Author against the Jurisdiction of the House of Peers is from the Statute of Appeals 1 H. 4. c. 14. And with that he would overthrow the force of that President of John Hall condemned by the Lords in that first year of H. 4. for the death of the Duke of Glocester in the 21 of R. 2. as if that power were now taken from them by that Act and that the Commons by it had taken care it should not be so done by them any more for so he saith p. 23. Which by his leave concerns nothing the proceedings against Hall and will less I may say concern the present question of the proceedings of this House of Lords in the Case of Skinner For that Statute provides only for Tryall of Appeals where a private person next of kin is or shall be prosecutor which was not in Halls Case the prosecution being in the ordinary way at the Kings suit It is true that in the 21 of R. 2. an horrible abuse had been in point of Appeals Certain Lords not by Law capable of it taking upon them to be Appellants and in their own Names acousing in Parliament several persons Peers of the Realm and Commoners of divers Treasons and Murthers making themselves Judges and Parties and condemning them to die without nay against all forms of Law rules of Justice by which means many innocent men lost both lives and Estates This it is that is provided for by that Statute and care taken it shall be so no more not the Ordinary prosecution of Offenders in the Kings Name as Halls was Though one particular in that Tryal is confessed to have been most Irregular and Illegal which was examining him against himself upon Oath but that is not material to the point in question which is Whether the Statute of Appeals forbids such Tryals as assuredly it doth not nor any of those formerly instanced in to have past in the House of Peers And least of all can it concern the late Proceedings in the business of Skinner and the East India Company in which there is no charge either of Treason or Felony where an Appeal onely can take place to bring it within that Statute In the same 23d page an other Argument is used against this Jurisdiction of the Peers in which that Author hath certainly missed his Mark for nothing could be produced that makes more for that Jurisdiction He saith That the Subject of England hath moderated Parlaments and by express words determined that some things cannot be done in Parliament as that any should be impeached there of that concerns his Francktenement or Hereditament and vouches for his Authority Rot. Parl. 10. H. 6. n. 35. where indeed there is such a desire of the House of Commons That none shall be compelled to answer in Parliament concerning his Francktenement But let him tell us how they sped with their desire if their Petition was granted to make it a Law and binding Far from it The Answer is Le Roy saduisera The King will advise which in Parliamentary Language is a flat Denyal So then no alteration was made of what was formerly the Usage and Power of Parliament but all continued as it was before And that before they did in Parliament try and judge such matters is apparent by the desire of the Commons that it should not be so hereafter for if no such thing was their desire it should be no more so was ridiculous but it was so it seems and their desire that it should be altered being rejected leaves it in the same state it was that the Parliament might continue still to do it And by the Parliament in these Cases is to be understood onely the House of Peers for there singly lies the Judicial Power as is confessed and acknowledged by the House of Commons themselves 1. H. 4. n. 79. so it is in the Record but in the Exact Abridgment it is n. 80. That all Judgments appertain to the King and Lords and not to them but when out of especial grace some are communicated unto them and therefore they there desire that the Records may be so entred as they may not be made Parties to them So careful they were then not to seem to encroach upon that Power And whereas the Author of that Pamphlet would make a difference upon the Personal presence of the King in those times in the House of Lords That though they might do it then in some Cases it followed not the Lords might do it alone the King not there it is but a fancy of his making a difference where in truth there is none I have proved it before that the Court is the same be the King present or absent The King in Person can judge no man nor dispose of no mans Life or Estate therefore it is a Maxim That the King can do no wrong the reason is because he of himself and by his own particular and personal Authority can give away no mans Right no not any ones pretended Right where a man hath only a possession though without right the King alone in propria Persona can give no Rule in it but it must be tryed in one of his Courts And his Judges and Ministers whom he intrusts with his Regal Power that with which he is himself invested in his Politick Capacity and which he conveys to them making them thereby the Dispensers of his Royal Justice unto all his Subjects they must be
and Company and of Maurice Tompson and Sir Andrew Riccard seeing the Petitioners hopeful designe in his Plantation and way of trade with his Ship did seize for and on the behalf of the said Governour and Company his said Ship goods houses Istands and 1521 Dollars of the Petitioners in the hands of Thomas Leaver the Companies Chief Agent at Jamby which hath damaged him 17172 l Sterling besides the disappointment of his trade disseizin of his said Island loss of above six years time with attendance and vast charges here in endeavors for a just satisfaction c. being much more valuable then all the other damages And the said Agents used many violences upon his person in the said Indies notwithstanding that the Petitioner proffered Bail and good Security there to answer all their pretences which inhumane and unreasonable dealing forced the Petitioner through infinite hazards and expence to come most over Land for England to seek redress That in the year 1661 and continually since he hath humbly besought his Majesty for Justice against the said Governour and Company and persons aforesaid and though his Majesty hath been graciously pleased to convene the said Company and Persons and to hear the said Matters and also to referre it divers times to several Lords of his Majesties most Honourable Privy Councel to hear them and mediate an End yet they could not be reduced to Reason nor Justice albeit the Petitioners Wrongs and Damages were made to appear as well by their own acknowledgement as other evidence produced before the Lords Referrees but endeavoured by the strength of their Joynt-Purse to bear down the Petitioners Relief though never so just by wearying him from further Prosecution That the Petitioners whole Case not being remediable by the Courts below he is constrained humbly to address himself to your Lordships his Majesties great Councel and Supreme Judicature whom the Petitioner most humbly petitioned the last Sessions and your Lordships were pleased to order their Attendance but by their Dilatory Pleas and several non-attendances upon slight excuses at the day appointed by your Lordships they frustrated the Petitioner of obtaining your Lordships Justice that Session Wherefore he most humbly prayes That your Lordships will be pleased to cause the said Governour and Company and persons aforesaid to answer the premisses before your Lordships by a short day and that he may receive from your Lordships such Relief as shall be consistent with Justice and Equity And he shall pray c. Signed Thomas Skinner The Lords upon this order the Company to put in their Answer in Writing upon Wednesday the 6 th of November They bring in a Plea as before First by way of Protestation That all the Injuries supposed to be commited by them and their Factors are untrue Then plead as formerly That the Petition is in the Nature of an Original Complaint not brought by way of appeal c. as in their Plea of the last Session but add And therefore these Respondents do humbly demand the Judgement of this honourable Court whither it will please to take any other or further Cognizance of the same the rather because the matters of Complaint in the Petition are such for which remedy is ordinarily given in the Courts of Westminster-Hall wherein these Respondents have Right to be tried and ought not to be brought hither per saltum nor drawn ad aliud examen and so pray to be dismissed The Lords having received this Plea to shew the clearness of their Intentions and their tenderness of doing any thing which might but carry a Semblance That they desired to engross to themselves the judging of particular Causes when determinable elsewhere and nothing extraordinary in the Case to induce their Lordships to take Cognizance of the Matter which apparently was in this Case of Skinners as hath been said before would have the Opinion of all the Judges before they proceeded any further And therefore made an Order Monday the 2 d. of December That it be referred to all the Judges to consider of Skinners Petition and to Report to the House upon the Wednesday following whether the Petitioner were relievable upon the matters therein mentioned in Law or Equity and if so in what manner upon the several parts of the Complaints of the said Petition The day appointed the Judges came and the Lord Chief Justice of the Kings Bench reported That all the Judges had considered of the Matter referred to them and having met and considered thereof were of Opinion That the Matters touching the taking away of the Petitioners Ship and Goods and assaulting of his Person notwithstanding the same were done beyond the Seas might be determined in his Majesties Ordinary Courts at Westminster And as to the dispossessing him of his House and Island That be was not relievable in any ordinary Court of Law Here then clearly by the Judges own Confession part of the Case was not within the Power of Westminster Hall and under favour of better Judgements I think it will be but a venial Sin if notwithstanding this Declaration of our Sages in the Law the Doubt do still remain with us if some of the other points also as that of the taking of his Ship a Robbery committed super altum mare be punishable by the Law of Westminster Hall Nay may not one be bold to affirm That it is not And may it not be doubted further if any part of Skinners Case be tryable there and if their Fiction in Law will reach any part of it being all for Injuries and Violence against his Person and Estate in India We know that some Judges and Lawyers make it to extend to Contracts and Bonds made beyond the Sea which they ground upon a Case in the Year Book of 48 E. 3. fol. 2. where Sir Ralph Pole brings his Action against Sir Richard Tochester upon an Obligation bearing date at Harfleet in Kent Lou de rei veritate I l fust fait en Normandie the Book saith and his Action was held good And Brook who makes it to be at Roan not Harfleet gives the reason in his Abridgement Faits 98. le lieu n'est traversable the place is not traversable which is to be understood when it is expressed in the Bond for a man cannot traverse the place against his own Act. But the Law was ever understood to be otherwise till then that the Judges would ampliare Jurisdictionem And to shew what the Law was before E. 3. it was adjudged Michaelmas 2 E. 2. That no Action would lie for a Bond made at Barwick which did not then belong to England ou cest Court nau ' conisans where the Court hath not cognisance saith Fitzherbert Obligation 15. And so Perkins Faites 121. But both before and since the Courts of Law were so far from punishing Injuries and Trespasses done beyond Sea That even Treason was not tryable till the Statute of 26 H. 8. cap. 13. which saith That if any of the Kings
Subjects shall commit Treason though out of the Limits of this Realm it shall be tryed in any place that the King shall appoint by Commission under the great Seal So a special Commission was to be issued for it And several other Statutes were afterwards made of the same Nature But for Trespasses as this of the East India Company against Skinner there is no Act of Parliament to authorise the Prosecution at Common Law nor I think any Book Case to warrant the practice of it Book Cases against it there are many even for Trespasses in the Isle of Jersey though within the Kings Dominions because a Venire Facias could not go thither to summon a Jury from thence Mich. 42 as Mr. Prin cites it or 41. as Sir Edw. Cook E. 3. Coram Rege rot 109. An Inhabitant of Jersey complains to the King and Councel of false Imprisonment and several Injuries done him in the Island They send this Bill of Complaint to the Judges of the Kings Bench and there the Bill is dismissed Quia compertum est saith the Record quod negotium praedictum in Curia hic terminari non potest eò quod Juratores Insulae praedictae hic venire non possunt c. Other Cases there are of the same nature And if a Fiction could not help for Jersey being part of the Kings Dominions much less could it help for Forein parts where the King had no Authority at all Yet the House of Lords hath in all times exercised Jurisdiction upon Crimes done and committed in Forein parts as well as those within the Kingdome both Treasons and other Offences As in the Cases of the Lord Latimer for the loss of St. Saviour in Normandy and Oppressions done by him in Britany 50. E. 3. n. 21. Of William de Weston for the surrender of Outherwick in Flanders 1. R. 2. n. 38. John de Gomeniz for Ardes 1. R. 2. n. 40. Pierce de Cressingham and John Spickworth for the Castle of Drinkham in Flanders 7. R. 2. n. 17. The Bishop of Norwich for not doing Service beyond Seas according to promise and as he ought to have done for delivering up Graveling to the French not mustering his Army at Calice as he should have done and not having his Number compleat n. 18. Sir William Elinsham Sir Thomas Trevit Sir Henry Ferrers Sir William de Hurnedon and Robert Fitz-Ralph for delivering strong Holds and Fortresses for Money n. 24. John Hall a Servant to the Duke of Norfolk for Murthering the Duke of Gloucester at Calice 1 H. 4. n. 11. Sir William Richill for but taking the Examination of the Duke of Gloucester at Calice 1 H. 4. n. 93. And multitudes of others who could not have been tryed by the Common Law were tryed by the House of Lords And in truth a man may say the whole Case of Skinner in every point of it was only cognisable before them However it being out of all dispute even by the Confession of the Judges That some things in it are not tryable in Westminster Hall I hope it may be thought reasonable to leave as great an extent of Power to the House of Peers which is the supreme Judicature of the Kingdome as to the Court of Chancery where the ordinary practice is to retain a Cause when there is Equity in any part of it The Lords therefore Ordered the hearing of the Cause spent several daies in it and having with much patience heard all that could be said on both sides appointed a day to consider what was fit to be done super totam materiam Upon which day after a solemn debate they came to this Resolution only in general That Thomas Skinner was to be relieved by that House And referred it to a Committee to consider what damages he had sustained by the Governour and Company trading to the East Indies and to report their Opinions what Recompence was fit to be given him for the same Whilest the Business was under the consideration of the Committee and before the House of Peers had made any Determination of it a Petition was said to be presented by the East India Company unto the House of Commons which I will set down word for word before I give it any Epithete and upon reading it I think every unprejudicate man will say one cannot give it an Epithete bad enough the Petition was thus TO THE HONOURABLE The Commons of ENGLAND in Parliament Assembled The Humble Petition of the Governour and Company of Merchants of London trading to the East Indies Humbly sheweth THat Thomas Skinner lately exhibited a Petition to the Right Honourable the Lords Spiritual and Temporal in Parliament assembled against your Petitioners many of which are and were Members of this Honourable House when the said Petition was exhibited for Injuries pretended to be done by your Petitioners Factors in the East Indies in seizing his Ship Goods and Money and dispossessing him of a small Island there all which Matters excepting what concerns the Island are Matters clearly determinable in his Majesties Ordinary Courts of Law as by the Judges attending their Lordships hath been resolved and reported And for the Island the same is parcel of the Dominions of a Foreign Prince and so the Right thereof only determinable by the Laws of that Prince That though the Petitioners did humbly tender a Plea to their Lordships for that the Petition was in Nature of an Original Complaint concerning Commoners only and not brought to their Lordships by Writ of Error or Bill of Review or any way of Appeal and that the Matters therein were relievable in the Courts of Westminster Hall and thereupon prayed the Judgement of that High Court whether it would please to take further Cognizance thereof Yet their Lordships have been pleased not only to give a hearing to all the Matters in the said Petition contained but have denied to gran◠the Petitioners a Commission or so much a◠time to send for their Witnesses now inhabiting upon the place where the Injuries were pretended to be done and without whos◠Testimony it was impossible for the Petitioners to make their Defence That upon the said hearing their Lordships were further pleased to appoint a Committee to assess damages against your Petitioners which Committee is now proceeding thereon accordingly whereby several Members of this Honourable House who are of the said Company as well as others your Petitioners may be highly detrimented All which proceedings as your Petitioners humbly submit to your Honourable Judgements are against the Laws and Statutes of this Nation and Custome of Parliament In tender Consideration whereof and for as much as these unusual and extraordinary Proceedings of their Lorships are not only grievous to your Petitioners at present but may also be a President of ill Consequence to all the Commons of England hereafter and for as much as your Petitioners have no way of Relief in this Case otherwise than by making their humble Addresses to this Honourable
a jurisdiction especially when many in number are produced and some of all times and in every Kings Reign of which the Records can be had which shewes a Continuance of and so an unquestionable Right to such a power One or two or twenty then in the Negative that the Lords did not do so in such and such Cases Nay I say more were the Number equall as many in the Negative as in the Affirmative yet it could not disprove their Jurisdiction It would only shew that their Lordships were free Agents to do it or not do it as they saw Cause But their Jurisdict on remained still enure to do it whensoever they would And when all is done I may say all this is Nihil ad rem and concernes not the point in question which is If the Lords have done well or ill in relieving Skinner against the East-India Company for he was not relievable aâ— the Common Law as hath been shewed And if he had not been relieved there had been a failer of Justice So as there was a necessity of their Lordships acting in that particular to keep up the publick Justice of the Kingdome And all Presidents and all that can be said and urged to shew that the House of Peers ought not to meddle with matters determinable at Law are in truth out of doors and can not concerne this House of Peers which never did it but the contrary For whensoever it appeared that any business before them was proper to be tryed at Law they presently dismissed it Yet since their Right is questioned they must defend it though they gave no Occasion for it having not at all put that Right in execution nor as it may well be presumed by their proceeding hereto ever intending it As to the 6 other Presidents oâ— Petitions Answered in the Parliament of the 14 of E. 2. which the Gentlemen of the House of Commons themselves seemed not to lay so much weight upon The Lords thought they did wisely in it for they were not such as would bear weight to build upon The Lords of that Parliament according to the several natures of the businesses Petitioned for dismissed the Petitioners with several directions Which shewes they took Cognizance of those matters One was directed to take out his Writ novaedisseisinae and an other to bring his action of Trespass the third they send to the Common Law the fourth into the Chancery the fifth they Order to bring his action of debt the sixth who complained of several things to him they gave particular Answers and particular Directions to every point One of which they said pertained not to the King that is to his Laws so they could give no Order in it it was concerning the Resignation of a living which was to be tryed by the Laws of the Church For the other points they disposed them into their proper Channells Was this to be done by a Court that had no Jurisdiction in these matters No rational man can think so But it would be considered that in this Case of Skinners the Lords could give none of those Answers neither sibi perquir at per Breve de Cancellaria not Sequatur ad Legem Communem or tobring this or the other Action For neither Law nor Equity in the Ordinary way of the Inferior Courts could relieve him for the loss of his real Estate in the Indies the Judges said he was not relievable for his House and Island So as none of those Presidents are applicable to the point in question Not that the Law even in the ordinary execution of it provides not for the punishment of all Crimes It declares against and condemns the Fact but can not reach the person to punish him when he hath committed that Fact in a Forrein Country Ubi lex Angliae non currit And the House of Peers hath but helpt the Law to inflict such punishment upon Offenders as by the Law was due to them which otherwise they had escaped And were it but this it sufficiently justifies the Proceedings of the Lords in that particular Case Then as to the Jurisdiction of that House in the generall it will be made as apparent as the Sun at Noone how they have in all times exercised it to the relief of all persons who stood in need of their relief even for things done within the Kingdome Where the Law had provided a remedy they applyed it Some times themselves would take the pains in Cases that deserved it where there was some thing extraordinary to move them to it and when they were at leisure from the more weighty and important Affaires of the Kingdom Some times they would send it down to the Inferior Courts to do it for them and give them Authority for it which they could not have done if they had not had it themselves for Nemo dat id quod non habet as in the Case of certaine Rioters 11 H. 4. N. 38. in the Exact Abridgement Whom they turned over to the Kings Bench and gave those Judges Authority to the end the busines where the Law had not provided there they would not meddle themselves and declared it so That none else neither should presume to meddle As upon the Petition of Martin Chamberlain in that 14 E. 2. p. 409. Who upon the suppression of the Knights Templers desired to be put into the possession of a mannor which the Templers whilest they stood had held of him The Answer is Quod non est Lex ordinata there was no Law ordained in the Case And because the Law had not determined how those Lands should be disposed of the Lords would say nothing to it But will it not be said that this makes good what the Commons objected against the Lords retaining this Cause of Skinners because some parts of it were not determinable in Westminster-Hall Whereas there being no Law concerning those points till there had been one made their Lordships should not have meddled with them As the Lords in that Parliament of E. 2. would do nothing in Chamberlains Case because the Law had not provided for it And as in those two Cases mentioned by the House of Commons That of an Inheritrix Forfeiting by her husbands default where as the Statute of Westminster the second expressed it a Durum est was in the Case And that of the Hospitall of St. Leonards 2 H. 6. N. 37. which had a clear Right to a Corn Rent Yet the Lords could not relieve them but both were faine to have Acts of Parliament This receives a twofold Answer One That there are other Motives in this Case to make the Lords retain it and give Skinner Relief Here is a poor man oppressed by a rich Company with whom he was no waies able to wage Law And that Consideration hath in all times prevailed with that House which is composed of Persons of generous and noble Spirits who can not see poor men oppressed without feeling in their hearts an Inclination and
then Per Legem Terrae is all one with Per Legem Angliae or secundum Legem et Consuetudinem Angliae and what ever is done secundum Legem Angliae is done Per Legem Terrae And in his 1 Inst l. 1. c. 1. Sect. 3. He tells us what Lex Angliae is he saith there are divers Laws within the Realme of England and reckons them up Lex et Consuetudo Parliamenti is in the front of them He names many more the Civil Law by which the Court of Constable and Marshall and the Court of Admiralty and Ecclesiastical Courts do act the Law of War for the Court Martiall to act by the Law of Merchants the law of Stanneries Particular Customes in several places of the Kingdome Statute Lawes established by Authority of Parliament Whoever and whatever is tryed by any of these Laws be it for life Lands or goods it is still according to Magna Charta and though not Per Judicium Parium yet Per Legem Terrae The Law and Custome of Parliament is one of these and the Lords now acting agreeably to that act agreably to Magna Charta and that they have acted so is I think sufficiently proved all ready and will be further hereafter when we shew you Presidents for it from the beginning of Parliaments So for the other Statutes of the 25 of E. 3. c. 4. and the 42. c. 3. They do not at all concerne the House of Peers and were made only to prevent Vexation by Petitions and false accusations before the King and his Privy Counsel as appeares by the Preambles of those Statutes Though the Gentlemen of the House of Commons who managed the Conference were pleased to give them an other Interpretation and to say that the Petitions and suggestions to the King or his Counsel which are condemned by those Statutes are to be understood of those brought to the King and House of Lords But can it be rationally believed That the House of Peers of those times should themselves make so many Lawes pass so many Acts of Parliament five in the space of 17 years the 25 of E. 3. c. 4. the 28 c. 3. the 37 c. 18. the 38 c. 9. the 42 c. 3. all of them prohibiting that any man should be apprehended imprisoned or disinherited upon an accusation or suggestion to the King or his Counsel and enjoyning all Proceedings to be by Original Writ or by Inditement or by Presentment of good and lawfull People of the Neighbourhood And they know themselves to be intended by those Acts and yet still should act contrary to them judge and determine so many Causes both Criminal and Civil as they did from time to time Nay can it be believed That the House of Commons in those daies would bring up Impeachments against men to have them tryed at the Lords Barr if they did then conceive that those Acts of Parliament did forbid the Lords to meddle For though the Commons House are sometimes called the Grand Inquest of the Kingdome to present the Grievances thereof it is presumed they will not say that their Presentment is the Presentment intended by those Statutes For the Presentment mentioned there is the very description and true Character of your Country Juries The words of the Statute are The Presentment of good and lawful people of the same neighbourhood where such Deeds be done And can any man think that this is to be understood of the House of Commons No certainly What then is it that makes the Lords Proceedings upon the Impeachments of the Commons to be Legal and not contrary to those Acts of Parliament Since there is neither Writ nor Inditement nor Presentment and yet men are brought to tryal condemned and executed by their Judgements but only this that it is the Common Law of the Land being the Ancient unquestioned and undoubted Law and Usage of Parliaments And thereby is there a clear demonstration of the true meaning of those Statutes that it was the Regulation of the Kings Privy Counsel they aimed at and not of the House of Lords that Counsel of which Sir John Lee was one in that 42 of E. 3. n. 23. who was tryed and censured by that very Parliament in which that Act was made One of the Articles against him was That being of the Kings Counsel and Steward of his House be caused sundry men to be attached and and brought before him and made them answer singly to him as if it had been to the body of the Counsel He was fined for it and committed to the Tower The Lords John Nevil was likewise of this Counsel for misbehaving himself in it Judgment of Imprisonment and loss of Lands goods and Office was given upon him 50 E. 3 n. 34. And in the same Parliament n. 18. The Lord Latimer was accused for divers miscarriages being a Counsellor and for them he was by the Bishops and Lords committed to the keeping of the Marshall of England and adjudged to make Fine and Ransome at the Kings pleasure It is true he was enlarged presently by the Earl Marshall one Arch-Bishop three Bishops the Prior of St. John three Earls fifteen Barons and thirteen Knights being his Manucaptors but the Commons desired further that he might be no longer of the Kings Counsel which was granted And this was not to put him out of the Lords House for he continued still a Member there and had his Writ of Summons to come to the next Parliament in the 51 th year of that King There is nothing more clear then that those Statutes are all to be understood to mean the Privy Counsel and so did the two Houses of Parliament interpret them 3 Car. in their Petition of Right where the expression is That against the tenor of those Statutes divers were detained by his Majesties special command certified by the Lords of the Privy Counsel and one may bodly affirme that never any Statute or Act of Parliament did term the House of Lords the Kings Counsel So that Article of Magna Charta urged likewise at the Conference Communia Placita non sequantur nostram Curiam concernes not them neither It was to fix the Court of Common Pleas which as all other Courts was before that Ambulatory and followed the King where ever he was if he was in the Kingdome and the Writs were made returnable Coram nobis ubicunque fuerimus which was a great Grievance to the subject and cause of many discontinuances in sutes The following words clear it Sed teneantur in aliquo certo loco Now the place of the meeting of the Parliament was alwaies certainly known being expressed in the Writ of Summons which shewes it was not meant for them And whereas it was said That in Cases of Freehold there is no Proceeding without an Original Writ Scarse any that walkes Westminster-Hall but knows the contrary and the Course of Proceeding to be so fart otherwise as that not one Tryal for Land of forty comes on upon
THE GRAND QUESTION Concerning the IVDICATVRE Of the HOVSE of PEERS Stated and Argued And the Case of THOMAS SKINNER Merchant complaining of the East India Company with the proceedings thereupon which gave occasion to that Question faithfully related By a true Well-wisher to the Peace and good Government of the Kingdom and to the Dignity and Authority of Parliaments by Denril Lord Hollis who dyed Feb 17th 1 0 1679 80 Judicium Dominorum Spiritualium TemporaliuÌ„ est SecunduÌ„Vsum Consuetudinem Parlamenti Vsus Consuetudo Parlamenti est Lex Parlamenti Lex Parlamenti est Lex Angliae Lex Angliae est Lex Terrae Lex Terrae est Secundum Magnam Chartam Ergo Judicium Dominorum Spiritualium Temporalium est secundum Magnam Chartam London Printed for Richard Chiswel at the two Angels and Crown in Little Brittain 1669. THE JURISDIC-TION OF THE House of Peers ASSERTED THe Power of the House of Peers in Point of their Judicature having been lately called in question upon occasion of a â—udgement given by them in a particuâ—ar Case which they conceived not â—…yable elsewhere in the Ordinary Course of Law It will not be amiss â—or the removing of all prejudice out of â—…ens minds to make a clear Narrative â—f the matter of Fact with some Observations upon it and the Additions of â—ome Presidents and Arguments Such 〈◊〉 may serve to evince and set forth the ancient way of Proceeding in that House as to their Judicial Capacity even the same which they have continued to practice in succeeding times and so leave it to the Judgement and conscience of every unbiassed indifferent man to satisfie himself If now there hath been any Innovation any new Incrochment of Power any Variation from the constant usage and Priviledge of the Peerage in all times Ancient and Moderne The business was sincerely thus Soon after his Majesties happy Restauration one Thomas Skinner preferred a Petition to him in Council purporting great Oppressions and Spoils Sustained by him in the Indies from the East-India Company robbing him of a ship and goods of a great value dispossessing him of a Plantation he had there a dwelling House ware-House at Iamby and an Iland called Barella which he had bought of that King assaulting his person to the danger of his life and several other Injuries done him For which he prayed the Kings Justice to appoint a Court Constable and Marshall to Heare and Determine those matters they not being otherwise Determinable by the ordinary Course of Law or to put it into any other way for Just Relief After some years Attendance and Sollicitation and several Petitions of this poor mans the King at last referrs it to certain Lords viz. The Lord Arch-Bishop of Canterbury the Lord Chancellor the Lord Privy Seal and the Lord Ashley to call all Parties before them and compose the matter if they could The Order of Reference runs thus Whereas upon the Petition of Thomas Skinner Merchant Setting forth his Sufferings under the barbarous oppressions of the East-India Company His Majesty was Gratiously pleased by Order of the 27. of August last to deferre theclearing of the matter for erecting a Court to determine affaires of this nature till the second meeting of this Board at White-Hall and in regard the said Company have Slighted the Orders of this Board and not complyed with any References or Mediations designing to we are out the Petitioners Life in tedious Attendances He did by his Petition this day read at the Board humbly pray that the said Court may be now Erected to relieve the Petitioner according to Justice put a Period to his grievances Whereupon his Majestie present in Council did Order That his Grace the Lord Arch-Bishop of Canterbury the Lord Chancellor Lord Privy Seal and the Lord Ashley do send for the Governor and some of the Members of the East-India Company to treat with them and to induce them to give the said Mr. Skinner such reasonable satisfaction as may in some measure be answerable to the loss and damage he hath suffered under them Signed John Nicholas These Lords Referrees met took much pains in it spent several dayes Ordered Mr. Ayloff of Counsel with Skinner to give them under his Hand a true State of the business whose report I will here set down in Terminis The Case of Thomas Skinner Merchant and his demands against the East-India Company for damages done him in the year 1659. in India IN the year 1657. was a general Liberty of Trade into the East Indies Then Thomas Skinner furnished and set forth his Ship called the Thomas from London on a trading voyage to the Indies and arrived there in 1658. The Compan by their Letters the 7o. Maij 1658 which arrived in India in November following commanded their Agents to Seize all ships and goods of English trading there and dispose half to the Common-wealth and half to the Company The Agents of Bantam direct those of Iamby to seize the Estate of Frederick Skinner in the hands of Thomas saying Thomas had nothing there of his own and that Thomas Leaver chiefe of Jamby should secure in his hands what Estate he had of Fredericks for a Debt suggested owing by him to the Company upon which pretences they seized Thomas Skinners Ship and Goods broke open his Ware-House assaulted him in his House and dispossest him of his I stand Barella for which Injuries he hopes satisfaction and therefore in particular demands For 128 Peculls of Pepper 24 Peculls of Nutmegs and for Beef strong Waters and other Provisions and Merchandizes taken out of his Ship by the Agents of Jamby and the Crew of the Ship Dragon then in the Companies service Ryals  3355 The Company agree the Value 3160 Ryalls brought to their Account but it being proved That the rest was laden on Board Skinners Ship this imbezlement or subduction by the Agents is just to lie upon the Company  Ryals For his Ship and Furniture sworn by two Witnesses to be worth when set out five or six and twenty thousand pounds sterling and that she was worth as much or more in India when taken yet abate a fist for ware and tare rests 8000. For eleven small Copper Ordnances and their Field Carriages 350 Ryals and two Quoyles of Ropes 80 Ryals in all 0430.  Ryalls For 10 Barrels of English Powder at 25 Ryals per Barrel and Sword Blades Spectacles Prospective Glasses Boxes Knives Cisors and other small Merchandizes Iron Works Nails Pistols Pictures Looking Glasses with Ebony Frames on board Ship-planks and other Wood on shore and in the Ware-House valued by Marmaduke Grimston and Peter de Barrier Purser of the Ship at 1730. For Moneys owing by Thomas Leaver to Frederick Skinner assigned to Thomas and accepted by Leaver with promise to pay but detained by Order of the Company who have in their hands a greater Summe of Leavers to indemnifie them against this Demand 1521. For his Charges at
House your Petitioners do therefore most humbly pray That your Honours will be pleased to take the Premisses into your grave Considerations and to interpose with their Lordships for your Petitioners Relief therein in such way and manner as to your great Wisdoms shall seem meet And your Petitioner as in duty bound shall pray c. Signed by the Order and in the Name of the said Governour and Company Robert Blackborne Secr. Copies of this flew about were in every mans Pocket and in every mans mouth That the Lords were even forced to take notice of it yet scarce could believe the House of Commons would receive such a Petition against them so scandalous and so false nor did they in the whole debate so much as mention the House of Commons but looked upon it as a thing done without doors thrown abroad only to blast and asperse the House of Lords and to bring them into the ill opinion and dis-esteem of the people which after a serious consideration and debate their Lordships voted To be a scandalous Libel against the House of Peers And certainly so it was both in Matter and Manner and had the Matter been true yet the Manner was scandalous For though all had been true which was suggested if the House of Lords had committed an Error had done some thing grievous to the Petitioners yet was it most unfit for private men to censure their Proceedings declare them to be unusual and extraordinary to be against the Laws and Statutes of the Nation and Costome of Parliament grievous to the Petitioners at present and of ill consequence hereafter to all the Commons of England Can the tongue of man utter more reproachful and stabbing words against any man or society of men If this were true do they deserve to live who are guilty of such things to continue so much as Members of any State or Common-wealth much less to have Power and Jurisdiction in it Certainly to revile in this manner and throw dirt upon the Highest Judicatory of the Kingdome was a most transcendent Presumption and of a most dangerous Consequence to the whole Nation even to those Commons of England whom these Petitioners pretend for so much making themselves as it were their Patrons and Protectors Tribunes of the people and withall endeavouring to bring an Odium upon the whole Peerage What is this but sowing sedition between the two Houses of Parliament and between the Peers and the Commons of England And what can it tend to but to the very dissolution of the Frame of Government The Scripture saith Thou shalt not speak evil of the Rulers of thy People and Elihu in Job moves this question Is it fit to say to a King Thou art wicked and to Princes Ye are ungodly Yet these Rabshakehs dare heap up Reproaches against the Lords of Parliament and bring railing Accusations against the Highest Order of Magistracy under the King in the Kingdom And how little Cause was given them for this the preceding Narrative of the proceedings of the Lords is I think an evident demonstration Their Lordships had proceeded with all the tenderness imaginable nothing of heat nothing of Precipitation had appeared in the whole Transaction They were not come to a full Conclusion and Determination of the business which these Merchants had no reason to suspect that it would be severe upon them And they might at least have staid till it had come what ever it had been and not have prejudged a Court before it had declared it self what Judgment it would give All it had then done was but what the East-India Company it self had by their own offer of Reparation for the wrong done acknowledged to be Just For the Lords had only declared That Skinner was fit to be relieved But what relief how much and in what sort the Quid and the Quomodo they had not determined that was under the Consideration of a Committee They themselves in their Answer to the Lords Referrees appointed by His Majesty in Counsel had offered to pay unto Skinner for Nutmegs White Pepper and some other things which had been unjustly taken from him by their Factors and had been brought to their account 3160 Dollars And 1521 Dollars more they offered for so many taken from him in Specie And by this they confess they had done him wrong and were willing to give him some Reparation So without condemning themselves they can not say the Lords had as yet done amiss and notwithstanding all this moderation and Circumspection that opprobrious railing Petition was preferred against them and which besides was full of untruths For the main matter in it and which in truth had carried a shew of Injustice had it been true is absolutely false And that is that the Lords denied them a Commission or time to send for Witnesses inhabiting upon the place without whose testimony it was impossible for them to make their defence First it is not true that the Lords denied them a Commission or time to send for Witnesses for they never insisted upon it which must have brought on a Resolution of the house and have been entred in the Clerks Book which was not Some such thing was once said by some of the Councel at Barr but themselves went off it knowing it would have grosly manifested their intent to delay longer a Poor man who had already spent seven years in the prosecution of that suit And as untrue is it that they could not else make their defence for multitudes of Witnesses were produced by them and all fully heard with Patience and enough acknowledged even by their own Witnesses and more by their own offer formerly mentioned of giving Skinner so many thousand Dollars Reparation which they had then declared which was only That Skinner should be relieved A second untruth is That they say all the matters complained of were clearly determinable in the ordinary Courts of Justice excepting what concernes the Iland whereas it appears there was likewise a dwelling house at Jamby and a Ware-house by the River-side of which they dispossessed him which were not so determinable even by the report of the Judges in their Opinion but in truth one may say no part of the Complaint was so determinable they say untruely then in saying there was only the Iland that he could not be relieved in and as untruely do they vouch the Opinion of the Judges for it who expresly mention the House as well as the Iland A third untruth is to say the Iland was parcell of the Dominions of a Foreigne Prince and the Right to it only determinable by the Laws of that Prince Whereas that Prince had made an absolute bargain and sale and a Totall Alienation of it from his Dominion and so had put it out of the Protection of his Laws A fourth and which they had inserted to be a Baite to draw on the House of Commons to espouse their Quarrel is that they suggest the complaint to be concerning Commoners
onely Whereas the Lord Berckley of Berckley a Member of the House of Peers is likewise of that Company which intitles yet more particularly that House to the Cognizance of the whole business upon point of Priviledge one of their Members being a party All these untruths are in matter of Fact Then for their Inference upon them the Judgement they give against the House of Lords their censure of their Proceedings to be against the Laws of the Land and the Custome of Parliament to be unusual and extraordinary to be a President of ill consequence to all the Commons of England now and hereafter this I hope no man will say to have truth in it but to be a false Imputation and a Slander or as the Lords themselves tern it a Scandalous Libell against the House of Lords And as untrue it is what they say in the close of their Petition and withall most Injurious to the House of Peers viz. That the Petitioners had no way of relief in this Case otherwise then by making their humble Addresses to the House of Commons Whereas ever since Parliaments have been in England the constant practice hath been and multitudes of Presidents there are of it of Appealing to the next Parliament from any Judgment given by a former Parliament which was grievous and unjust And never in this world before was there any Appeal to the House of Commons from a Judgment of the House of Peers much less to take a business out of their hands or give a stop to their Proceedings before they were come to a conclusion Then which nothing can be a greater Violation of the Rights and Priviledges of either House Nor would the House of Lords ever have endured that any should have used the House of Commons so in any application unto their Lordships Yet upon the examination it appeared that this Petition had been really presented to the House of Commons and was there received The Lords then fell upon the consideration of the main business in question between Skinner and the East-India Company and making Reflexion upon what had been alleged on both sides and the proofs gave this Judgment That the Governour and Company should pay unto Thomas Skinner for his losses and damages sustained the Sum of 5000 pounds one thousand within two daies after the serving of this Judgment two thousand pounds in three moneths after and two thousand pounds more in three months after that And they referred to the Committee for Priviledges to examine who was the publisher and disperser of that Scandalous Paper or Petition which they had voted a Scandalous Libell and to make Report thereof to the House In the disquisition of this business which held many daies at the Committee and in the House and where the Lords found much shuffling in the Persons they examined who were Servants and Officers to the Company It appeared at last that the Petition had really been presented to the House of Commons and well received by that House that it had been prepared by a Committee of the Company that Sir Samuel Barnardiston Deputy Governour of the Company Sir Andrew Riccard Mr Rowland Winn and Mr. Christopher Boone were of that Committee and Actors in it but especially Sir Samuel Barnardiston the most Active man who gave no Satisfaction to their Lordships in his Answers which the others did and by their submission obtained favour but the Lords adjudged him guilty of contriving that Scandalous Paper and fined him 300 l. to the King and to remain a Prisoner in the Custody of the Black-Rod till he paid his Fine And now the House of Commons ownes the Cause and seems not only to Justify these Actings of the East-India Company but to lay blame upon the House of Lords and passes certain votes to that purpose which they brought up to the Lords and delivered at a Conference And began with telling the Lords That they had examined the East-India Companies Petition and found the Allegations in it to be true That such Proceedings had been in the House of Lords And that the Lords had since adjudged them to pay 5000 l to Skinner and that the House of Commons thought these Proceedings to be of so very high Concernment to the Right of all His Majesties Subjects that they had passed those Votes upon it The Votes were these 1. That the House of Lords taking Cognizance of and their Proceedings upon the matter set forth and contained in the Petition of Thomas Skinner Merchant against the Governour and Company of Merchants of London trading to the East-Indies concerning the taking away of the Petitioners ship and goods and assaulting his Person and their Lordships over-ruling the Plea of the said Governour and Company the said cause coming before that House Originally only upon the complaint of the said Skinner and being a common Plea is not agreeable to the Laws of this Land and tends to deprive the Subject of his Right Ease and Benefit due to him by the said Laws 2. That the Lords taking Cognizano of the Right and Title of the Island in the Petition mentioned and giving damages thereupon against the said Governour and Company is not Warr anted by the said Laws of this Land The Lords were much surprised with these Votes which gave them cause to make a serious Reflection upon what had passed in the business of Skinner and to take a due examination of all Circumstances The way that it came unto them at first upon the Kings Recommendation Their own Right to take Cognizance of Judge and determine and give redress in causes of that nature Then the merits of this particular cause A poor man oppressed by great Ones very unable to contest with them at Law and so very unlikely there to receive relief and have any reparation from them admitting it had been in the power of the Law to have helped him which it was not and The manner of their Proceeding in the hearing examining and determining of it in which they had used all the moderation Imaginable going by steps and dgrees taking first the Opinion of the Judges to know if the man were relievable else where who said he was but in part and not for all relievable in Westminster-Hall which made them undertake it Then giving way to and bearing with many delayes of the East-India Company suffering the business upon several Pretences and excuses of theirs to be put off many daies when their Lordships were prepared to hear it and had laid aside other business for it by which means a whole Session was lost to the poor man And when at the next meeting of the Parliament it was heard in which a great deal of time and very many daies were spent yet not presently to come to a resolution but appoint a day for the debate of it and when that day came not to give a full Judgment but only pass a previous Vote That some Relief was fit to be given and take longer time to consider
Temporalibus none such is found in the Register or Fitzherberts Natura Brevium And the reason they said was the same for Personal Actions as those that concern Free-hold that Magna Charta and several Statutes made in Ed. 3. time provide for our Tryall by our Peers Some other Presidents they mentioned out of the Roll of Petitions answered in the Parliament of 14. E 2. as that of William le Rous F. 408. Complaining of the Kings Bayliffs who had twice dispossessed him of a house in Westminster and praying remedy the answer was Habeat Breve novae disseisinae in suo casu Then that of the Bishop of Winton Elect in the same page Complaining that the Kings Officers had cut down the woods of the Bishoprick during the vacancy and praying remedy The Answer is Habeat Breve de Transgess in Canc. Next of Joane the widdow of John Fouks p. 409. by Petition Complaining of a wast committed in the Mannor of Radewynter The answer is sequatur ad Legem Communem Another President of Mariote the wife of Robert de Carle in the same page praying remedy for a breach of the Peace by the Parson of Wormele and others the Answer is Adeat Cancel habeat ibi Breve in suo Casu And to a Petition of Robert le Sausser p. 410 for a debt due to him Answered habeat in Cancell Breve de debito The last President cited was p. 411. Ralph de Draiton Parson of Luffenham complaining against Robert de Vere and others for imprisoning him till he resigned his living taking away his goods and committing other violences for which he had a Commission of inquiry in the Country of York and now prayed remedy The answer is quoad Resignationem nonpertinet ad Regem quoad Commissionem habendam ostendat in Cancellaria primam commissionem ibi respondeatur Et habeat similiter in Cancell Brevia de Transgressionibus sibi factis contra pacem c. To this first part of that Conference the Lords when they came to theirs gave for Answer in the first place That they could not but observe some thing unusual in the very title of the Petition differing from the ancient Stile of those presented to the House of Commons Then that they were much surprised reading the Petition to find so many falsities and yet to heare the Gentlemen that managed for the House of Commons say that their House had examined it and found all the Allegations in it to be true Whereas in truth there were in it almost as many Falshoods as Lines those Falshoods have been mentioned before so as it is not needfull again to repeat them The Lords took notice after of the unusual Proceeding of the House of Commons to take Cognizance of any matter depending in their House before their Lordships had given any Judgment therein or communicated the same unto them And to examine proceed upon and censure by vote the Proceeding of the House of Peers which they said the House of Commons could not Legally do because they were not a Court of Judicature in any case much less of the House of Peers which is the Highest Iudicature And that in truth they had not means to come to the Knowledge of the truth whereby to found a Right Judgment because they have not power to give an Oath Nor in this particular had they heard any more then one side having not heard Skinner at all Nor yet had they conferred with the Lords by which meanes they might have come to the knowledge of the grounds and reasons upon which their Lordships had proceeded So as the Lords could not but wonder at this Judgement which had been past upon them Then they came to that Assertion concerning Common Pleas That they must be proceeded in by the Kings Original writ and consequently not before the Lords for which the House of Commons brought some Presidents to prove that Free-holds were never examined in Parliament but alwaies left to the remedy at Law And in the next place the Lords took into Consideration how they began their Presidents with this Preamble That where the party never Pleads to the Jurisdiction of the Court it is ordinary for Courts to proceed though in Cases not within their Jurisdiction To which the Lords said in the first place as to the Assertion viz. That all Common Pleas must be proceeded in by Original Writ and Consequently not before the Lords That it was as easy for them to assert the contrary and upon better grounds Being able to shew Presidents all along from the first and the most ancient Records we have down to the latest and most moderne ones of the Proceedings of Parliaments even within the memory and knowledge of every yong man that the House of Peers have still exercised this Jurisdiction even in particular Cases of Meum Tuum between man and man when they have thought good though that but rarely and when moved to it by some thing extraordinary in the Case and that no House of Peers hath done it less and been more tender of entertaining such businesses and more unwilling to be troubled with them then this present House of Peers upon which so much blame is laid and which is the only House of Peers that ever Private Persons found guilty and censured by it for foul Oppressions did presume in that manner to accuse and impeach to any Court or Councel or Company of men no not to the King himself Or that ever were censured and such votes passed upon before But we shall hereafter in its due place examine the matter of this Assertion and shall shew that it holds not true even in the ordinary Courts of Westminster-Hall whither of common Law or Equity where Cases of mens Free-holds are tryed every day without any original Writt and much less in Parliament In the mean time we will take things in order as they were delivered And to the Preamble which usherd in the Presidents That where the Party never pleads to the Jurisdiction it is ordinary for Courts to proceed though in Cases not within their Iurisdiction upon which the Inference must be that Presidents then signify nothing to prove a Jurisdiction though never so many though a constant Series of them in all times be made appear except there be still a pleading to the Jurisdiction and that Plea overruled The Lords thought this a strange Argumentation and took the force of the Argument to lye rather the other way That it is a clearer Proofe of a Jurisdiction to have it never or seldome questioned and be still exercised and submitted unto then if it be some times opposed though it be made good and maintained against that Opposition And they thought that in this particular Case they had good Warrant for their Jurisdiction finding it so seldome opposed even by the House of Commons own shewing who could bring but four Presidents where any had pleaded to their Jurisdiction and the Plea seemingly admitted for
Chanceler e ceux Ke tuchent Justices v ley veynent a Justices e ceux Ke tuchent Juerie veynent a Justices de le Juerie Et si les besoings seent si grans v si de graces Ke le Chanceler e ces autres ne le pussent fere sans le Rey dunk Ils les porterunt par lur meins de meine devant le Roy pur saver ent sa volentè Ensique nulle Peticion ne veigne devant le Roy e son Conseil fo rs par les majns des avaunt ditz Chanceler e les autres Chef Ministres Ensike le Rey e sun Consail pussent Sanz charge de autre busoignes entendre a grosses busoignes de sun Reaume e de ses Foreines Terres Thus in English In regard the People who come to the Kings Parliament are oft delayed and disturbed to the great grievance of themselves and of the Court by the multitude of Petitions exhibited before the King of which most could be dispatched by the Chancellor and Justices It is provided That all Petitions that concerne the Seal shall come first to the Chancellor and those that concerne the Exchequer to the Exchequer and those that concerne the Justices or the Law shall come to the Justices and those that concerne the Jewes to the Justices appointed for the Jewes And if the businesses be so great or so of Grace as the Chancellor and the rest can not end them without the King then they shall with their own hands bring them before the King to know his pleasure therein So as no Petition shall come to the King and his Counsel but brought by the Chancellor and those Chiefe Ministers that so the King and his Counsel may without the trouble of other busines attend the great businesses of his Kingdome and of his forrein Dominions This is the Order in which two reasons are expressed for their not receiving particular Petitions one in the beginning the other in the end First the ease of the Petitioners and of the House it self which for their multitudes could not give every one his dispatch and secondly that freed of them it might attend the Publick business of the Kingdome Not for want of Jurisdiction And yet be all manner of businesses so put by No! Great ones and such as need grace and favor are still reserved But take it at the strongest admit they had put all out of their own power yet it will be granted they had power till they did in this manner divest themselves of it It appears they had by the Order it self which mentions such multitudes of Petitions I then aske if such resolution of the House at that time could be binding to perpetuity The Houses of Parliament we know are masters of their own Orders and themselves when they please alter the Orders they have made much less then be they binding to succeeding Parliaments And it is obvious to every man who will either look into the Records of Ancient Parliaments or will but recollect his Memory and call to mind what hath passed in our late Parliaments that in all times the House of Peers hath acted contrary to this Order Taking Cognizanceeven of smaller matters which the ordinary Courts of Justice do every day dispatch And no House of Peers did ever do it less then this which in truth hath not done it at all though it be now so quarrelled with for having relieved one poor man from the oppression of the mighty when no inferior Court could do it And this too the only Cause of this Nature that they have medled with during this whole Parliament which hath lasted so many years and hath had so many Sessions And a Cause particularly recommended unto them by the King who is the Fountaine of all Justice not one taken up by themselves which makes not their Case the worse as it may well be hoped But suppose there had been no Reservation at all in that Order of 8 E. 1. of any Cause or any business but that the King and Lords had at that time bound up themselves absolutely from medling with any of those Petitioners Cases and for the Present waved the exercise of their Jurisdiction in all such matters had this been a Renouncing of their Jurisdiction and quitting it for ever No Court but may upon some particular occasion suspende and wave it's Jurisdiction it doth not therefore follow that it must never make use of it again The Court of Chancery doth sometimes appoint a Tryall at Law of points in a Cause which it might have determined it self if it had pleased And at an other time it will determine things of the same nature The House of Peers may do the same and wave their Jurisdiction when they please It did it 13 R. 2. N. 10. in Changeours Case Adam Changeour So is his Name in the Record though the Exact Abridgement call him John petitions the King and Lords against Sir Robert Knolls Setts forth how owing 2000 l to Sir Robert and his Wife Constance he had let him have Lands to receive the Rent till he was Satisfied his debt That Sir Robert had received more then his money due yet kept the Land so prayes remedy The Answer is indorsed upon the Petition Let a Writ be directed to Sir Robert Knolls to appear in Parliament the Friday after Candlemas next to Answer the things contained in the Petition Upon hearing the business the Lords leave it to be tryed at the Common Law This seemes a stronger President for trying all at Law and not in Parliament then any which the Gentlemen of the House of Commons urged at the Conference For here was an absolute dismission of the Cause and not ad praesens only as was in their Presidents But I believe such wise and knowing men could not but see that this President would not so much have helpt one way as done prejudice to their Case an other way The Prejudice it would have done had been this that themselves by their own shewing had overthrown one of their maine Arguments which was That all Proceedings in cases of Freehold should be by the Kings Writ and that no Writ was ever made Returnble Coram Dominis Spiritualibus et Temporalibus Whereas here had been in their own President mention of a Writ returnable in Parliament which is Tantamount and signifies the same thing But I have in this Discourse given Examples of several others in the same kind where Writs are issued by Order of Parliament returnable in Parliament and many more there are if it were necessary and worth the trouble to set them down And then what had they gotten by telling us That the Lords once would not retaine a Cause which was tryable at Law and would for once wave their Jurisdiction in such Matters When it was shewed to them by multitudes of Presidents That the Lords had most frequently done otherwise at other times in Cases of the same Nature And Presidents in the Affirmative are those that prove
a desire to relieve them But secondly we must distinguish between a Fact not being a Crime in the eye of the Law which is neither Malum in se nor Malum prohibitum and when the Fact it self being odious and punishable by all Laws of God and Man only a Circumstance as the Place where it was Committe dputs it out of the Power of the ordinary Courts of Justice to take Cognizance of it which are kept to formes and may not trangresse them In the first Case the House of Lords can not punish that for a Crime which the Law doth not make a a Crime but in the second Case God forbid there should be such a failer of Justice in a Kingdome that fellow subjects should robb and worry and destroy one an other though in Forrein parts and there should be no punishment for the wrong doer nor Relief for the party wronged when they come home For then the King might be deprived of many a good subject the Land loose many of her people Trading receive much prejudice and so King and Kingdome suffer great loss and all without remedy But then say the House of Commons Where the Law hath provided and there is an ordinary remedy an extraordinary ought not to be tryed to this the Lords Answer that their House is not an extraordinary remedy but the ordinary remedy in extraordinary Cases and this of Skinners was so both in point of difficulty and point of Compassion And to what is said That it is the Interest of all men in England to be tryed by Juries and there is remedy against willful Juries by Attaint but here is no remedy nor no Appeal It is Answered That the Court of Chancery disposeth of mens Estates without a Jury Every Court of Justice Every Judge in his Circuit sets Fines on mens heads upon several occasions without a Jury Many are tryed for their lives and their Liberties which is more then Estate in the House of Peers upon an impeachment of the House of Commons who are not a Jury nor are sworn therefore that Assertion holds not That all men in all cases are tryed by Juries And for matters of Appeal there doth lye one to the next Parliament or the next Session But it will be said That is to the same Persons And what hopes of any remedy For they wil make good their own Act To this is Answered It is what the Law of the Land hath established We must not be wiser then the Law It is what our Ancestors thought sufficient what hath been the practice of all time And if we leave Posterity in as good a Condition as our Ancestors left us they will have no Cause to Complain Then we must presume that Courts of Justice will do Justice and will do Right that upon better reason shewed upon the Appeal they will alter their minds and give an other Judgement They have done so heretofore How many Judgements of Parliament have been reversed by succeeding Parliaments And where there is Cause for it we must hope they will do so again Then where as it is said That the greatness of the Charge and the Inconveniencies of attending Causes in the Lords House is an Argument against their Judicature They Answer That it is not the House of Lords that appoints such great Fees to Counsel it being left to their Consciences that take them and to the will and discretion of their Clients who give them and who without an Act of Parliament to restraine it may give what they will or rather what they must However The Lords say that the charge in Chancery is greater there having been some times forty fifty Orders made in one Cause and the delay much greater so as some Causes have lasted there very many years And even at the Common Law how many Verdicts have been given in one Cause contrary Verdicts one for the Plaintiff an other for the Defendant Contrary Rules of Court the Judges give a Rule one day and three daies after give an other clean contrary As an Instance of it can be given but of last Trinity Term in the Kings Bench. These are Inconveniences that lye not in the House of Peers But admit there were Inconveniences Many Laws are found inconvenient which yet are put in execution and all obedience given to them whilest they stand unrepealed And the Question is not now of Convenient or Inconvenient but matter of Right Is it the Right of the House of Peers hath it still been the Custome and Usage of Parliaments and consequently the Law of Parliament that they should exercise such a Power of Judicature If it be so as it is and will be sufficiently proved then the point of Conveniency or Inconveniency is out of doors Well may it be a motive to alter it by the Law But we will play with them at their own Weapon and joyn Issue upon that point that the Inconveniency is but imaginary and so farr from an Inconvenience that it is the great advantage of the subject that it should be so As well to give relief in Cases otherwise unrelievable as to assist and help on the administration of Justice when sometimes the greatness and power of some persons would else bear down or much obstruct and hinder the Proceedings of Inferior Courts An objection also was raised How shall the Lords Judgements be executed after the Rising of the Parliament For so the subject may be deceived And when he thinks that with much Charge he hath made an end of his business he is never the nearer And it is Answered that the House of Peers is not as the House of Commons whose Orders are only of force whilest they are sitting they have power sufficient to require Obedience to their Judgements Nor hath it been knowen that ever any Judgement of the House of Peers was not submitted unto and obeyed till now in this Case of Skinners that the East-India Company stands out in defiance and refuseth all Obedience to it In 15 R. 2. N. 17. in the Case of the Abbot of St Oseches complaining against John Rokell for divers Embraceries and for not obeying an Order of the Duke of Lancasters made therein the Lords Confirme that Order and charge the Lord Chancellor to see Rokell perform it Why may not the Lords do the same still if they doubt of Obedience to their Orders But there was never question made of it before And there are many Presidents of Orders given to persons to act some thing in the Intervalls of Parliaments to give an account of it to the Lords at the next ensueing Parliament which shewes that their Authority stil continues to empower those persons to act and to execute their Orders even when the Parliament is risen 15 E. 3. N. 48. The Bishops of Duresme and Salisbury the Earl of Northamton Warwick Arundell and Salisbury are appointed to take the Answer of the Archbishop of Canterbury and to report it to the next Parliament And 51 E.
which not And those Parliaments that the Modus Parliamenti speakes of when a little before the rising of the Parliament Proclamation was made in Publick places to know if any had business to the Parliament if any had Petitioned the Parliament their Petition had not been answered Certainly those Parliaments then did not apprehend to be reproached either with Partiality or deniall of Justice And I would aske this further If they can think that such a Committee of Tryers would have rejected Skinners Petition and have said The Lords can take no Cognizance of your business because it is concerning things done beyond Sea when themselves were a Committee appointed only for such businesses But to let these Sarcasmes pass and see rather what was said and may be said to the more solid objections concerning Magna Charta and those other Statutes which they will have to condemne the Proceedings of the Lords First it may be observed as a thing very strange that in above 400 years since Magna Charta was first made a Law it was never till now found out that the Lords had broken that Law by the exercise of this Jurisdiction nor were they ever charged with it before But besides do they by this any more break it then the Court of Chancery which by a Decree disposes of a mans Lands or the Court of the Constable and Marshall which takes away a mans life or any other Court where the Judge for a Contempt presently sends a man to Prison or claps a Fine on his head so takes both person and Estate or the same House of Lords when it Commits a man upon an Impeachment of the House of Commons Judges and Condemnes him Here is no Judicium Parium that is most certain nor Lex Terrae if you take it for an Original Writ And yet no man will say any of this is contrary to Magna Charta Why then may not the Proceedings of the House of Peers when it punisheth a man for robbing and assaulting his fellow subject in as strange Country which puts the busines out of the Cognizance of the ordinary Courts of Justice receive as favourable a Construction It can not be said that the House of Commons by their taking Cognizance of a Fact by their previous examination of it and declaration upon it giving it the Denomination of Treason or of any other lesser Crime can create a Jurisdiction in the House of Peers which it had not before and give it new power and Authority to pass a condemnation upon the guilty Person yet is it the Ordinary practice of the House of Commons who have a Grand Committee of Grievances for that purpose to impeach men so before the Lords They could receive not long since a Petition of one Taylor complaining against the Lord Mordant for oppression and falss imprisonment and the injurious taking away of an Office from him at Windsor All which were properly tryable in Westminster-Hall yet they could bring this up to the Lords and crave Reparations and Damages in the Name of the Commons of England And the Lords must not though at the Kings recommendation receive a Petition from Skinner and give him relief for his whole Estate by violence and with a strong hand taken from him part at Sea part upon Land in a strange Country in neither of which the Courts of Westminister can afford him any help For this must be against Magna Charta So rather then the Lords shall do it this must be a Failer of Justice in the Land the King shall not be able to protect his subjects the oppressor shall go free and the cry of the oppressed shall go up to heaven for Judgment upon the Land because he finds not Justice in it for his Relief But I remember what the Gentlemen of the House of Commons said at the Conference That therefore the Lords should not have given Relief in this Case because there was no remedy at all at Law This Objection hath been already answered therefore I shall not repeat it here only use one Argument more ad hominum that they forget what themselves have done this very Parliament entertaining a Complaint of one Farmer against the Lord Willoughby who is since dead for dispossessing him of his Estate and other wrongs done him in the Barbadoes which could not be tryed in Westminster-Hall which yet they were preparing to bring up to the Lords by way of Impeachment if the Lord Willoughby had not dyed And there is reason to believe that if Skinner had in the like manner applied himself to them there had been no breach of Magna Charta nor no exceptions taken at the great charge of the Subject appealing to the House of Commons and prosecution there though the charge be every whit as great and becomes much greater to the party that prosecutes for when he hath done there then he must begin again in the House of Lords so the charge is double and the Judgement when it comes is never a whit more in Latin to make it a Record then if the business had begun first in the Lords House as much is it without Jury or Appeal and no less danger of the non-execution of the Judgement after the rising of the Parliament In Fine all that is said against the Lords Proceedings now might as well be said against them then And to say the truth if it be well considered it wil be found that the consequence of this opposition should it work it's effect and prevail would be the overturning of the very foundation of all Authority of Parliament that it might then well be said of the whole Parliament that it did sit only to make Laws and give Subsidies But all this proves not the exercise of the Lords Judicature to be warranted by Magna Charta it only saith that other Courts and the House of Commons it self do as bad Which is no Justification of the Lords For to erre with Company is not to be free from fault Let us then see what may be said to clear them all but principally and Chiefly this Judicature of the House of Peers which is the mark shot at And to do this we must examine the Disjunctive proposition in Magna Charta which saith that every man shal be tryed Per Legale Judicium Parium suorum vel per Legem Terrae For if the Lords judge by either of these they are well enough And Sir Ed. Coke shall determine the question whom no man can suspect of partiality for the House of Lords He tells us in his 2. Inst F. 51. That Lex Terrae is Lex Angliae not Voluntas Regis as the Commons said the Kings Counsel would have it to be 3 Car. And less voluntas Dominorum Fot it is not in an arbitrary way the Lords proceed but according to the Law of the Land to punish nothing but what the Law makes punishable and Judge every thing according to Right secundum aequum et bonum So
Pasch le Conseil qil moy averont donnez et fray envers vous ceque fere deveray Sir I am your liege man for the Kingdome of Scotland and do pray that as to what you have proposed unto me which concernes the People of my Kingdome as well as my self you will have patience till I can speak with them that I be not surprised for want of Counsel seeing those who are here with me will not nor dare not give me their advice without the rest of the Kingdome And when I shall have advised with them I shall give you for Answer at your first Parliament after Easter that which they shall counsel me and shall do unto you that which I ought to do This request of his did King Edward grant the Record saith Et Dominus Rex habito super hoc Consilio ad Rogatum praedictum praedicti Regis Scotiae et etiam ad Instantiam Procerum et Magnatum de Consilio suo et Gratia sua speciali et similiter de Consensu praedicti Magdulphi concessit ipsi Regi Scotiae supplicationem suam et diem ei dedit ad Parliamentum suum post Pascha viz. in Crastino Sanctae Trinitatis c in omnibus in eodem statu quo nunc Idem dies datus est praefato Magdulpho Et per ipsum dominum Regem dictum est praefato Regi Scotiae et injunctum quod habeat ad praefatum terminum praedicta Brevia quae cognovit se recepisse ut supra dictum est He must not forget to bring the Writs with him 1 R. 2. n. 29. A Scire facias is awarded against the Earl of March to appear before the Lords at the next Parliament and to abide further Order And 2 R. 2. n. 33. the Sheriff of Shropshire makes his return that the same Earl was not found in his Bayliwick it seemes he was dead for there was then an other Scire facias ordered to warne his Son who was then Earl to be and Answer at the next Parliament after 13 R. 2. n. 12. Upon a complaint of the Bishop and Dean and Chapter of Lincolne against the Mayor and Townesmen for some wrongs done them in Execution of their Charter by order of Parliament a Writ was directed to the Mayor and Bayliffs of the Town to appear at a certain day before the Lords with Authority from their commonalty for abiding their Lordships determination they appear but not coming with full Power they are adjudged in Contempt By the same Parliament such a Writ is directed likewise to the Mayor and Bayliffs of Cambridge upon 〈◊〉 Petition and Complaint from the Vice-Chancellor and Scholars and they run the like fortune to be adjudged in Contempt for the like cause So then there are Writs made returnable in Parliament And many other examples may be given and some more will be given in this Discourse and Presidents cited upon other occasions where Writs have been Issued so returnable Which shall be observed as we go along And these few shall in this place suffice to disprove that Assertion Nor indeed was there any thing said on that side that did not receive a full and satisfactory Answer For what was said of an Act of Parliament to give Skinner relief for his Island doth in truth deserve no Answer for it were ridiculous to think an Act of Parliament or any thing else but an Army could put him into Possession of his Island again And it would be altogether useless unto him could he so obtaine it his Plantation there being utterly destroyed and all his goods spoiled and lost both there and at Jamby so as it would be impossible for him to carry on his trade to any advantage Therefore it is Reparation and Satisfaction for his Damage which he must have And that is not the work of an Act of Parliament but of a Court of Judicature That advice then is not to be followed and so we will leave it It now remaines but to set forth the Presidents which the Lords did on their part alledge with some few more Antient ones which shall be added for the Vindicating and Asserting of their Right unto this never before controverted point of their Judicature in all Cases of what nature soever when some thing extraordinary in those Cases did induce them to exercise it Of which they were the sole Judges that being a Trust lodged in them by the very Frame and constitution of the Government In the black Book in the Tower which is Printed by the Name of Placita Parliamentaria 30 E 1. F. 231. is the Case of Sir VVilliam Paynell and Margaret his Wife suing for Dower upon the Lands of John Cameys who had been Margarets former Husband and whom she had left he yet living And they now desiring tobe tryed by their Country upon the point of Adultery and the Lords not allowing of it This hath been at large expressed before therefore I only mention it now In the same Book p. 266.33 Ed. 1. The Case of Nicholas Segrave who was tryed in Parliament for leaving the Kings Army then in Scotland and goeing over into France to fight with one John de Crumbwell upon a falling out between them they being together in the Kings Army This was a case not tryable in VVestminster-Hall nor punishable in any ordinary Court of Justice by the Common Law of England yet the House of Lords could try him and adjudge him worthy of death And one thing more is observable in that Record That a Writ is Issued to the Sheriff of the County to take foure Knights with him and in their presence to Summon Segrave Quod esset Coram Domino Rege in proximo Parliamento suo apud VVestm ad audiendum voluntatem ipsius Regis et ad faciendum et recipiendum ulterius quod Curia Domini Regis consideraret in Praemissis So here is a Writ returnable in Parliament and the Sheriff did accordingly make his returne that he had Summoned and charged him Quod esset coram Domino Rege in isto Parliamento nunc juxta formam et Tenorem Mandati praedicti c. It was therefore a gross mistake to say That never any Writ was made returnable in Parliament as it was likewise one to say That the House of Peers could give no remedy where there was not remedy at Law this President proving the Contrary to both 21. Ed. 1. p. 135 136 c. The Arch-bishop of York is questioned in Parliament for excommunicating the Bishop of Duresme The ground of the Excommunication was For that the Bishop of Duresme had imprisoned two Persons employed by the Arch Bishop to cite the Bishop to appear before him The Arch Bishop appeals Et dicit quod de sententia a Canone lata per ipsum declarata in Curia Domini Regis non debet respondere The House of Lords goes on The other side alleadging That the Bishop in his Temporal Capacity as Count Palatin had committed those men
by sickness or other occasion As 50. E. 3. n. 35. it is said The King ordains That from thenceforth no Woman should for Maintenance pursue Matters in the Kings Courts upon pain c. And then was the King sick at Eltham and could not come to Parliament as appears by n. 42. and it was only the House of Peers that made that Order So in Judgments though in Ancient Times they were mostly entred as given by the King yet it was the Lords House which was Curia Regis that gave them For we must know the KING hath a double Capacity of sitting in the House of Peers a Legislative Capacity when he hath in himself a Negative Voice to what even both Houses have concluded and done which signifies nothing without his Assent and his single Dissent makes it all null and void This is in passing Acts of Parliament and making of Laws The other is a Judicial Capacity when he will please to assist and be present at the ordinary Transactions of the House as heretofore was usual which alters not the Constitution of it as it is a Court gives it no more Power nor Jurisdiction then it had before he being then but in a manner as Chief Judge and not doing any thing singly but according to the Plurality of Opinions As when the Kings would in Person sit in the Kings Bench which they have in former times done where still all is said to be done Coram Rege though now he never come there and in Our Memory King James hath set in the Star Chamber I think no body will say the Star-Chamber then or Kings Bench before did or could vary from their ordinary Forms and Rules of Proceeding No more can the House of Peers alter their Proceedings or assume greater Authority by reason of the Royal Presence to take Cognisance of other Causes or do any thing which by the Custome and Usage of the House and the Law of Parliament it could not else have done But their Jurisdiction and their way of exercising that Jurisdiction is still one and the same And therefore 26. H. 6. n. 52. When the King had given a Judgment of himself without the advice of the Lords in the Case of William de la Pool Duke of Suffolk who stood impeached for Ireason banishing him the Realm for five years The Lords entred their Protestation against it as not done by their Assent and so no Act of the House And 5. H. 4. n. II. The Earl of Northumberland coming into the Parliament before the King and Lords and by Petition acknowledging to have done contrary to his Allegiance in giving of Liveries and gathering of Power for which he prayed pardon in regard he yeelded himself and came in to the King at York upon his Letters And the King delivering this Petition to the Justices to be considered The Lords made their Protestation That the Judgment appertained only to them And therefore as Peers of Parliament to whom such Judgement belonged in weighing the Statutes concerning Treasons and concerning Liveries they adjudged the Fact of the said Earl to be no Treason nor Fellony but only a Trespass finable to the King Whereupon the King received him into Grace and pardoned him his Fine All Power of Judicature in Parliament is then questionless in the House of Lords where the King alwayes is Personally or Virtually and the Judgment proceeds from them by the Authority and in the Name of the King For the Power of Judicature in Parliament is lodged in them together with the King as is declared 1. H. 4. n. 80. where it is said That the Commons were only Petitioners and that all Judgments appertain to the King and the Lords unless it were in Statutes Grants Subsidies and such like This hath ever been the Practice and Custom and Law of Parliament since there have been Parliaments and when this shall cease to be the Ancient way of Free Parliaments will cease likewise 1. R. 2. n. 30. Sir John de Cobham sheweth That by the delivery of a Ring of Gold for seisin to Edward the third he had setled the Reversion of several Mannors there named in the Crown and now prayes it may so remain according to his Intention divers Lords are examined the Judges Opinions are asked who declare it to be a good Livery and Seisin And so it is setled N. 32. William Fitzhugh a Gold-finer and Citizen of London exhibits a Bill of Complaint in the Name of the Cōmonalty of that Mystery against John Chichester and John Bolsham of the same Mystery for divers Oppressions done by them The Lords send for them examine them they deny those Oppressions And Fitzhugh refusing then to avow his Bill the Lords commit him to the Tower N. 35. Rober Hawley and John Shakell are by the Lords sent to the Tower for refusing to bring forth a Spanish Prisoner taken in Battel whom they had in their keeping and others laid claim to N. 41. Alice Perrers 〈◊〉 Pierce who bad been much in favour with Ed. 3. is questioned in the Lords House Sir Richard Scroope Lord Steward of the Houshold managing the Tryal for that contrary to an Order made by the King and Lords 50. Ed. 3. n. 35. That no Woman and she by Name should pursue any Matters by way of Maintenance upon Pain of perpetual Banishment and loss of the whole Estate She notwithstanding had perswaded King Edward to countermand Sir Nicholas Dagworth from going into Ireland when he had been ordained by the Council to go thither for urgent business which would have been profitable for the King and the Realm And an other Charge against her was for perswading the King to pardon Richard Lyons who had been Farmer of the Customs and for abuses and extortions had been censured in Parliament to forfeit his Estate and be committed to Prison she got all to be remitted and his Estate to be restored unto him even that part of it which the King had given to two of his own Sons for their lives The hearing of this Cause took up several dayes Many that had been Counsellors and Officers to the late King were examined as Witnesses At last she is found guilty and Judgment of Banishment and loss of Estate given upon her 3. R. 2. n. 24. The Case of the Earl of Pembrock and William le Zouch complaining of Thomas Roos for sueing them concerning Lands in Yorkshire and endeavouring to get a Tryall in the Countrey the Record is Desitant D'estre a Lissue du pays trop suspecieusement his desiring it being suspicious so they pray Que Ils partels Malueis Compassements Procurements en pais ne soient desheritez That they may not loose their Inheritance by such wicked practises and procurements The Lords upon this retain the Cause appoint some Persons to examine and report it But this President hath been cited before at large so I do but touch it here N. 22. Sir Philip Darcy complains That the Prior of St.
Johns of Hierusalem sues him in Chancery for the Mannors of Temple-hurst and Temple-newsom which Ed. 3. had granted to John Darcy his Father and produces a Deed shewing that the Priors Predecessor had passed the Fee of them to Ed. 2. The Lords order that Deed to be sent to the Treasurer and Barons of the Exchequer to examine the Kings Title and in the mean time stop Proceedings in Chancery This is more then taking Cognisance of a Matter Originally for they take it out of one Court where it depended and was undetermined and send it to be examined in an other Court which shews the Ascendant they had upon all other Courts 4. R. 2. n. 17. Sir Ralph de Ferriers had been seised by the Duke of Lancaster upon the Marches of Scotland upon suspicion of Treason for holding Intelligence with the French the Kings Enemies upon some Letters of his to several French Lords found and taken up by a Begger He was brought into Parliament before the Lords and put to his Answer He first desired Counsel then offered the Combate against any that would acouse him both were denyed him Then he applyed himself to his Answer And after several dayes hearing the Lords still remanding him to Prison he so well defended himself That the Lords suspected the Letters to be forged and therefore committed the Begger and bayled Sir Ralph delivering him to his Manucaptors 5. R. 2. n. 45. The Chancellor and University of Cambridg Petition against the Major Bayliff and Commonalty of the Town for breaking up their Treasury burning their Charter and by force compelling them to make Releases of some Actions they had brought against the Town and enter into Bonds to them for great Summs The Lords direct a Writ to issue out to the Maior and Bayliffs to appear in Person and the Commonalty by Atturney They appear The Chancellor exhibits Articles against them They being asked why their Liberties should not be seised plead to the Jurisdiction that the Court ought not to have cognisance of them They are told Judgment should be given if they would not answer Then they answer and the business is heard The Townsmen are ordered to deliver up those Deeds forced from the University which are presently cancelled The Town Liberties are seised into the Kings hands and part of them granted to the University Some are granted back to the Town for which they were to pay an increase of Rent Note here is a Plea to the Jurisdiction and that Plea Overruled 8. R. 2. n. 12. The Earl of Oxford complains of Walter Sibell of London for a Slander in having to the Duke of Lancaster and other Noble-men accused him of Maintenance The Lords hear the business Commit Sibell to Prison and give 500 Marks dammages to the Earl 9. R. 2. n. 13. The Case of the Duke of Lancaster complaining That Sir John Stanley had entred upon the Mannor of Latham which held of him and had not sued out his Livery in his Court of Chancery The Lords order him to sue out his Livery But this hath been already mentioned 15. R. 2. n. 16. The Prior of Holland in Lancashire complains of a Riot committed by Henry Trebble John Greenbow and others and of an Entry made by them into the Parsonage of Whit wick in Leicestershire John Ellingham the Serjeant at Arms is sent for them who brings them into the Parliament The Lords commit them to the Fleet. N. 17. The Abbot of St. Oseches complaineth of John Rokell for Embracery This Case hath been already cited N. 18. Sir William Bryan had procured a Bull directed to the two Archbishops to excommunicate some that had broken up his House and carried away Writings This was read in Parliament and adjudged to be prejudicial to the King and to be in Derogation of the Laws for which he is committed to the Tower N. 20. Thomas Harding accuseth Sir John Sutton and Sir Richard Sutton and layeth to their charge that by their Conspiracy he had been kept Prisoner in the Fleet Upon hearing of both Parties for that the two Knights were known to be men of good Fame The Lords adjudge him to the Fleet. N. 21. John Shad well complains against the Archbishop of Canterbury for excommunicating him and his Neighbors wrongfully for a Temporal Cause appertaining to the Crown and to the Laws of the Land The Lords hear the business find the Suggestions untrue and commit him to the Fleet. 1 H. 4. n. 93. Sir William Richill one of the Justices of the Common-Pleas who by express Order of Ri. 2. went to Calais and took the Examination and Confession of the Duke of Gloucester after murdered by Hall was brought a Prisoner into the Lords House the King present and by Sir Walter Clopton Chief Justice apposed And answered so fully shewing his sincere dealing that the Lords one by one declared him innocent And Sir Walter Clopton pronounced him such 4 H. 4. n. 21. The Case of Pontingdon and Sir Philip Courtney where the Lords direct the Tryal appointing what the Issue shall be and what kind of Jury shall be impannelled to prevent Sir Philip 's practices in the Country It hath been cited before at large 1. E. 4. m. 6. n. 16. The Tenants of the Mannor of East-Maine belonging to the Bishop of Winchester the King being in his Progress in Hampshire in the Summer-time complained to him of their Bishop for raising new Customs among them and not suffering them to enjoy their Old ones The King bids them come to Parliament in Winter and they should be relieved They come and the King recommends their business to the Lords They commit it to certain Justices to examine Upon their Report and upon mature Deliberation it was adjudged That the Tenants were in fault That they complained without cause and they were ordered to continue their said Customs and Services Here observe there was the recommendation of the King in the Case just as now in Skinners and this difference that a question of Custom betwixt Lord and Tenants was properly determinable by the Common Law and a Jury of the Visenage and this of a Trespass in the Indies to be punished in Parliament or no where which justifies the Proceedings there 43. Eliz. the 18th of December A Complaint was made to the Lords by the Company of Painters against the Company of Plaisterers for wrong done them in using some part of their Trade Their Lordships referred it to the Lord Maior and Recorder of London to be heard examined adjudged and ordered by them Which was all one as if they had done it themselves For it was done by their Authority and by their Order Qui facit per alium facit perse 18. Jac. The Lords took notice of the Proceeding of the House of Commons in the Case of one Flood whom they had convented before them for insolent and scandalous words spoken by him against the Prince and Princess Palatine examined Witnesses and given Judgment in the Cause
procured the Arrest brought to the Bar and upon their humble sumbmission pardoned with a check from the Speaker and paying their Fees Three Presidents only there are which Sir Edward Cooke produces of their exercising a Judicature two of them upon their own Members for Miscarriages the third upon one no Member for striking a Member this primo Mariae the other 8. Eliz. 23. But they did not constantly nor frequently do that neither that is not judge and punish either their own Members for any Offence whether against the House or out of the House or any other for arresting or assaulting them till after Queen Elizabeths time For in the 27th of her Reign as appears by the Journal of that Parliament A Member of the House having been served with a Sub-poena the House sent to the Lord Keeper and signified unto him That it was against their Priviledge The Lord Keeper returned answer That he should not submit to any Opinion of the House concerning their Priviledges except those Priviledges were allowed in Chancery and would not recal the Sub-poena So in Matters of Elections they were glad to pray the aid of the House of Peers upon any Miscarriage or Neglect of the Sheriffs as in the 18th H. 6. n. 18. The Sheriff of Cambridgshire Gilbert Hore had made no return of the Knights for the County upon Complaint made to the House of Peers it was Ordered That he should go to a New Election and make Proclamation That no Person should come armed thereunto Any of the Members to be dispensed of their Attendance in the House come to the King and Lords for it So did Sir Philip Courtney Knight for Devonshire 16. R. 2. n. 6. who being accused of some hainous Matter comes to the King in Parliament for the King did then ordinarily sit in Person in the House of Peers and prayes to be discharged his Attendance until he was purged which was granted This was upon the Wednesday and the Munday after at the Request of the Commons he is restored to his place in their House and to his good Name for that he had submitted himself to reasonable Arbitrement saith the Record All this is said with great Respect to the House of Commons and not any wayes to impugn or question their exercise of Jurisdiction upon their Members and for the defence of their Priviledges but only to shew how things were in the beginning and how extensive the Power of the House of Peers hath ever been in their Judicature reaching all Crimes all Persons all Places none exempt And how necessary it is it should be so That there be not a failer of Justice in the Land that no Offender may escape unpunished and no oppressed Person go unrelieved All other Courts having their Bounds and Limits which make them too narrow for some Cases And this trust being in the House of Peers there is remedy in those extraordinary Cases But before I wind up all to a Conclusion a word must be said to answer some Objections which I have met with in a Book intituled the Commoners Liberty printed in the year 1648. The first Objection is an Order of the House of Peers with the Kings Assent to it 4. E. 3. n. 6. by which the King and Lords declare an Agreement made betwixt them That the Lords shall not be held nor charged to give Judgment on others but their Peers And that the Judgements then given shall not be drawn into Consequence to oblige the Peers in time to come to judge other then their Peers against the Law of the Land This the Author of the Book will have to be an Act of Parliament because it is said to be done in full Parliament To which I answer The Record it self shews it to be otherwise The Title is Concordia ne trabatur in Consequentiam That is an Agreement an Accord between Parties that what is done shall not be drawn into Consequence no Law to impose upon them and to oblige them And the expression That it was done in full Parliament and so the Commons present signifies nothing as to inforce what he would infer upon it For admit that yet it makes it not a Law the Commons might be Witnesses to what was done but were no Parties Which must have been to make it a Law They must either have Petitioned for it before or have given their Assent and Approbation after it must either have begun or ended in their House before it had gone to the King for his Royal Assent and then it had been binding and the Law of the Land but there was no such thing here The Occasion of it was this The King had prevailed with the Lords against their Wills and Protestations to the contrary as appears by the Record of that Parliament n. 2. even in a Manner forced them to condemn the Earl of March Sir Simon de Beresford John Matrevers Bogo de Bayons John Devaral Thomas de Gourney and William of Ogle for the murther of Edward the Second and the death of the Earl of Kent all of them Commoners except the Earl of March and none of them called to answer yet some of them in hold and others not Those that were in hold were presently executed and great rewards promised to who should bring in the rest quick or dead The Lords afterwards troubled in Conscience at what they had done and moved with just indignation against themselves made first a Protestation That they would not for the future be Tenus Chargez a rendre Jugement sur autre que sur leurs Pairs be tyed and charged to judge any but their Peers and this they get the King to consent unto and happily for the more Solemnity of the business would have the King declare so much before the Commons And their Indignation together with their Precaution not to be again necessitated to do the like might carry them further to say They would not be obliged to judge any but Peers against the Law of the Land though it will very well bear an other Construction that it was their being in that Manner forced and pressed to do what otherwise they would not have done which they declared to be against the Law of the Land because it is against the Freedom of Parliaments and not their Judging of Commoners to be against the Law of the Land But admit it those Lords then thought it to be so and that they ought not to judge any but their Peers Doth that bind up the House of Peers that they may never be of another mind They are still Masters of their own Orders and alter them and change them as they think good And I look upon this Order as no other nor of no more force then that made 8. E. 1. which is in the Appendix to the Placita Parliamentaria p. 442. concerning Petitions which I have mentioned before and which succeeding Parliaments would not observe And that they did not observe this neither
of these several Offenders But admit they had particularly impeached every one of them which is more then to desire such a Delinquent may be brought to his Tryal and that the Lords would do Justice on him as they find Cause and much more then onely to design the Crime and leave it to the Lords to find out the Persons For in an Impeachment they examine the matter and first find themselves the Party to be guilty and then they follow it against him and prove him so before the Lords Doth this at all give them any part in the Judgment or must it not necessarily be understood that the Judicature is naturally and constantly lodged with the Lords and the House of Commons part then is onely to bring the Offender before the Lords to be tryed This very Record of the Proceedings in the Lords House against Gomeniz and Weston shews it so to be and proves the Judicature of the House of Peers as strongly as can be It runs thus Item par la ou supplié est par les Communes que tous ceux qunt rendus perdus Chatels ou Villes par dela par uray defaut des Capitaines puissent estre a Response a Cest Parlement selon leur desert fortement punis par agard des Seigneurs Baronage eschievant le malueis ensample qils ont donnez as autres qui sont Gardeins de villes Chatels Commandé est a Sire Alein de Buxhall Conestable del Tour de Londres qe y face venir deuant les Seigneurs en Parlement a Westminster le Vendredy 27 Jour de Novembre lán susdit Jehan sire de Gomeniz William de Weston c. Item Whereas it is prayed by the Commons that all those who have delivered up and lost Castles and Towns on the other side of the Sea by their own default being Captains of them may be put to their answer at this Parliament and according to their desert be severely punished by the award of the Lords and Baronage for the eschewing of the evil example which they have given to other Guardians of Towns and Castles Command is given to Sir Allen de Buxhall Constable of the Tower of London to bring before the Lords in Parliament at Westminster upon Friday the 27th of November of the aforesaid year John Lord of Gomeniz and William of Weston c. Here the Commons desire that all such may be severely punished by the award of the Lords and Baronage So it is their Award and their Judgment must punish and this by the Commons confession And you may observe further that the Commons do not make any mention of any particular Person but the Lords they command Sir Allein de Buxhall to bring Gomeniz and Weston before them such a day But it is easie to trace the Author of the Pamphlet where he was led out of the way and that was by an other Pamphlet of the Priviledges of the Baronage which goes under Mr. Seldens Name but hath as many mistakes in it as leaves and there indeed it is said p. 15. That at the supplication of the Commons that all those who have rendred Castles be put to their Answer and that Allen Buxhall Constable of the Tower do bring before the Lords such a day Gomeniz and Weston to answer the Articles which there shall be preferred for the said Cause they were so brought c. But the Record it self you see is otherwise which that Pamphleter it seems never read And for what he further would infer to make that and all other Judgements at the prosecution of the Commons admit they had been so which these were not Acts of Parliament is a Fancy so ridiculous as it is not worth the answering which makes no difference betwixt an Act of Attainder that passeth both Houses and afterwards hath the Kings Assent as all other Laws have which is an effect of the Legislative Power in which either House hath an equal Vote and a proceeding before the Lords against a Criminous Person in a Judicial way wherein the Commons have nothing to do as to the judging of him But one thing more in that Pamphlet I cannot let pass which is in p. 12. The words are these viz. For the Kings giving Judgment in Parliament with the Lords Assent I do confess Judgements there ought to be properly and punctually entred as given Par nostre Seigneur le Roy que est Souverain Juge en tous Cas par les Seigneurs Spirituels Temporels ouel Assent des Communes de la Terre ou a leur Petition Nenny par les Seigneurs Temporels Seulement That is As given by our Lord the King who is Sovereign Judge in all Causes and by the Lords Spiritual and Temporal with the assent of the Commons of the Land or upon their Petition and not by the Lords Temporal alone And for this he quotes in the Margent Rot. Part. apud Leicester II. 16. which he delivers so Magisterially as any man would swear he had good Authority for what he said and that his old French was some old Oracle of Parliament And I must confess upon the first reading of this I was at a stand finding here such a positive Precept contrary to what I had still believed both in the Affirmative it must be by the Kings and Lords with the Assent of the Commons and Negative not by the Lords alone But when I came to examine this Assertion by the Record I found there was a foul mistake whether purposely or ignorantly I judge not For what was delivered by Counsel to bolster up his Clients pretentious is there produced as the Rule of the Court And an Error assigned to reverse a former Judgment which is but the Allegation of a Lawyer that draws up his Clients Plea is made an Argument to controul and condemn a constant usage of the House of Peers It was in the Case of the Earl of Salisbury Who brought a Writ of Error in the Parliament 2. H. 5. to reverse the Judgment given 2. H. 4. n. 30. by the Lords Temporal alone with the Kings Assent by which Judgment the Earls of Kent Huntington and Salisbury and some others who had been some slain some taken in actual Rebellion by other the Kings Subjects and by them put to death without form of Law were declared attainted of Treason and their Estates forfeited For the reversal whereof Thomas the Son Earl of Salisbury amongst the Errors assigns this for one as a principal one that it was given by the Lords Temporal alone with the King whereas it should have been by the King Lords Spiritual and Temporal with the Assent of the Commons or at their Petition And what follows upon this Indeed if the Judgment had been reversed though perhaps upon some other Error for several others were assigned there might have been some colour for the Gentlemans Assertion and the Inference he would make upon it But so far from it that the Judgment