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
the Persons that do the wrong if any be done It is Curia Regis that doth it and not the King though he sit in Court in Person And so the stile is Videtur Curioe And the Pleas Commonly end with this Declaration of the Party Hoc paratus sum Verificare pro at Curia ordinaverit and when mention is of any thing done contrary to the formes of proceeding Non sic in Curia ista usitatum est is the expression as it is in the President of the 18. E. 1. so much insisted upon by the House of Commons So hath it been in all times the Authority of the Court to which the Law requires obedience When Henry the third would have his Brother Richard Duke of Cornewall confirm the grant of a Mannor to one Waleran a Germain to whom King John had given it and which the Duke of Cornwall said belonged to his Dutchy of Cornwall and had therefore taken possession of it his Answer was That he was willing Curioe Regioe subire Judicium Magnatum Regni that was to say the Judgment of his Peers in Parliament and when the King said angrily to him He should then quit the Kingdom it he would not deliver up the Mannor his reply as Matthew Paris Records it was Quod nec Walerano Jus suum redderet nec sine Judicio Parium fourum e Regno exiret He would neither quit his Right nor the Kingdom but by the Judgement of his Peers Such difference was then made betwixt the Kings Personal Command and an Order of the House of Peers in disposing of mens Rights which makes it very apparent That the Kings Personal presence could not add any thing to or make any alteration in the Jurisdiction of any Court. But enough of this especially considering what is said before upon the same Subject Some other Evasions I find in that Book to elude the Lords Judicature and take off the force of some Presidents which have been cited in maintenance of it which I think are but evasions and work no great effect As that of the Banishment of Alice Perrers or Pierce which that Author will prove to have risen from the Commons and to have been at their Petition because Walsingham a Cloistered Monk saith so contrary to the Record in the Tower where he finds no such thing where certainly it would not have been omitted had it been so that being so essential a part of a Transaction of Parlament that it could not have been left out by the Clerk in the Journal Book And whereas to fortifie Walsingham's Testimony he saith he then lived as if he had been Testis Ocularis I doubt much if he was then born or so young he must have been that he could little take notice of the passages of the time for Baloeus in his Book De Scriptoribus Britanicis saith he flourished in the year 1440. under Henry the sixth when he died we know not but had he died then or soon after he must have been sixty three years old if so be he was in the World when Alice Pierce was banished for the Judgement of Alice Pierce was the first year of Richard the second which was in 1377. So as what he writes could be but by hearsay Which is observed by me onely to shew what weak proofs that Author brings to make good his Assertions and shews the badness of his Cause Not that I think it at all material to the point in question whether or no it was at the request of the Commons that Alice Pierce was judged by the Lords which would not at all evince what he would infer upon it that the House of Lords hath not of it self Cognisance of the Cause of a Commoner nor can judge him for an Offence whether Capital or of a lesser Nature but that the House of Commons making it their desire qualifies them for it Which is a strong Argument of the contrary and proves that the House of Commons doth thereby acknowledge their Judicature For ridiculous it were to think That any Act of that House could create a new Power in the House of Lords which it had not in it self before and which afterwards must cease till it please the House of Commons to give again a new life and being to it As if the House of Lords were but a Property which cannot move of it self to have the Verse said of it Ducitur ut nervis alienis mobile lignum I am sure it hath not been so heretofore nor do I think the House of Commons will own that Authors Opinion And so the Judgment of Hall for the death of the Duke of Glocester that too forsooth must be at the request of the Commons and so be an Act of Parliament and the proof for it is that at the end of the Roll they thank the King for his just Judgment But if the Gentleman would have perused the whole Roll he would easily have been satisfied that the thanks of the Commons related not to Halls condemnation but to the proceedings of the King and House of Peers against Sir William le Scroop Sir Henry Green and Sir John Bussy who had been active for Richard the second and were looked upon as principal Authors of the Miscarriage of his Reign For at the request of the Commons the Lords confirmed a Judgment formerly given against them in some of the Kings Courts not in Parliament and the King declaring That though he took the forfeiture of their Estates according to the Sentence given upon them yet he understood not there should be by it any Infringement of the Statute which said That no mans Estate should be forfeited after his death who had not been convicted whilst living for these persons he said had been so convicted Whereupon the Commons thanked the King for his righteous Judgment and thanked God for giving them such a King This had no relation at all to the business of Hall And in the Record it is an Article by it self of what had passed in Parliament another day So for the proceeding against Gomeniz and Weston that too must be at the request of the Commons and consequently an Act of Parliament Whereas the Commons had onely in general desired that all such as had delivered up any of the Kings Forts and Castles unduely might be called to account for it in that Parliament and be punished for it according to their demerit by the Judgment of the Lords who thereupon commanded the Lievtenant of the Tower to bring before them those two who were already in hold for their several Facts in that kind whom they tryed and condemned and proceeded likewise against several others as Cressingham Spikesworth Trevit and many more guilty of the same Crime whom they convented before them and Sentenced some to death some to other punishments according to the Quality of their Offence Now I do ask if in common sence it can be construed that the Commons were at all Parties in the prosecution
his Father deceased And that a Statute of 1600 l entred into by the said Thomas Bagshaw to John Gell Esq shall be discharged and made void And that Thomas Bagshaw shall make a Release to the said Edward of all Debts and Demands The sixteenth of June 41. The Lord Audley Complains by Petition That the Lord Cottington kept from him the Mannor of Fonthill and prayed Relief therein Upon hearing Counsel on both sides the Lords dismissed the Petition The twenty third of June 41. The Committee for Petitions Reports That Mistris Walter had preferred a Petition setting forth That William Walter her Husband will not permit her to cohabit and dwell with him nor allow to her and three Children any thing for their support The Lords Order her to repair to her Husband and offer to live with him and if he shall refuse to admit her that then he shall allow her 60 l per annum for her Maintenance The 21 th of July 41. A Petition was exhibited before the Lords by sundry Officers and Clerks of the Court of Common Pleas shewing That the disposing of the Offices of Protonotaries Phitizers Exigenters and other Offices of the said Court had time out of mind belonged to the Chief Justice of that Court for the time being but several Grants and Patents had been obtained from his Majesty for the disposing of the said Offices and therefore they prayed That all those Grants and Letters Patents might be recalled The Lords heard Counsel upon it and after mature deliberation declared That the said Offices do of Right belong to the disposition of the Lord Chief Justice of the Common Pleas And the Grants formerly made by Letters Patents of the said Offices to be Illegal and void And Ordered the said Patents to be brought into the House There is likewise in the Journal Book of that Parliament mention made of a Petition of one Thomas Smithick preferred the tenth of June 1641. Complaining of wrongs sustained from the East India Company and likewise of a Petition from the East India Company full of Respect and Submission to the House of Lords and praying a longer day then it seems was appointed for hearing the Merits of the Cause which the Lords granted and Ordered all such Books Certificates and Writings as were in the Custody of the Company concerning that business should be produced and Smithick to peruse and take Copies of them What was more done upon this Petition of Smithicks appears not by the Journal Book probable they compounded the business among themselves But however it is observable the different Spirits of the East India Company then and of this now The Modesty of that and the Carriage of this so far differing In those times no question was made of the Power of the Lords in point of their Judicature nor no Complaint against their practice of it Yet we see the frequency of it in Causes of all Natures Criminal Civil Mixt between King and Subject between Subject and Subject no Protection no Priviledge did exempt any body from their Jurisdiction The Lords at the Conference as they said to the Gentlemen of the House of Commons were the more Copious in the enumeration of these later Presidents especially those of 1640 and 1641. not that they thought themselves at all to stand in need of them the antient ones before produced shewing the usage all along from the very first and best times which in their Lordships Opinions were of much more weight sufficiently convincing but the House of Commons having a little before at an other Conference delivered it for a Maxim That the later Presidents were best and having accordingly insisted upon one single President of the same Parlialiament of 1640. to Oblidge the House of Lords to commit a person upon a general Impeachment of Treason without special Matter shewn and opposing that one President to what their Lordships alleadged to the contrary and made appear to have been the usage of all former times no Record being of any Man ever sent to Prison by the House of Peers without a particular Crime expressed in the Impeachment of some Act done by him before the Earl of Strafford which was the President stood upon This made the Lords heap up so many Examples of the Proceedings of their House in that Parliament of 1640. in the point of Judicature to use it as Argumentum ad heminem and what the House of Commons could no wayes except against themselves having declared it to be of greatest Authority Until Henry the Eights time the very House of Commons was to be beholding to the House of Lords for their Administration of Justice even concerning their Members as the only Judges and Conservators of their Liberties and Priviledges Themselves could not before that have punished any one that had never so much offended them So far were they from exercising a Power of Commitment or of inflicting any punishment for Crimes at large and against the Laws of the Land where neither the Offence nor the Offender had particular relation to their House as in these later times hath been often practised by them But as I say the first time that ever they punished any and it was for breach of Priviledge was in the Parliament 34 H. 8. in the Case of George Ferrers Burgess for Plimouth who was arrested and put in the Counter The House informed of it sent their Serjeant to demand their Member not so much as to summon Sheriff or Bayliff that made the Arrest or Party at whose suit it was made and less to bring any of them as Delinquents to the Bar as now a dayes nor could they obtain that But their Serjeant coming to the Counter found resistance the top of his Mace was broken off his Man knocked down and he glad to get off without the Prisoner So back he comes to the House yet sitting and makes his Complaint They presently all rise with their Speaker come up to the House of Lords and the Speaker makes the Complaint to Sir Thomas Audley Lord Chancellor sitting on the Wooll-sack The Lords judge the Contempt to be very great and refer the punishment of it to the Order of the House of Commons Then indeed they return to their House and send for the Sheriff of London the Clerks of the Counter all the Officers there that had a part in the fray with their Serjeant one White at whose Sute Ferrers was Arrested and the Bayliffs that did Arrest him all to appear personally before them at eight of the Clock next Morning and when they came they sent some of them to the Tower some to Newgate where they continued till they were delivered at the suite of the Lord Major We do not find that before this the House of Commons committed any body no not for the Breach of their Priviledges nor were themselves so much as Judges of the Elections of their Members but were fain to come up to the Lords and pray their aid to
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
What and How much and referr it to the Consideration of a Committee to prepare it for the House And that then in that Interim of time before any thing was determined whilest but in Agitation and under consideration what should be done a Scandalous false railing Petition to be delivered to the House of Commons against the House of Peers contrary to all usage Right and Priviledge of Parliament and what was expresly forbidden 9. H. 4. N. 22. And this not withstanding not knowen upon what mistake for a mistake it must have been to be received with approbation by the House of Commons and seconded and confirmed by those forementioned Votes which were broughâ— up to the Lords and declared unto them at a Publick Conference Aâ—â— these things considered made the Lord very sensible who thought if there haâ— been failings that a gentler application had yet been more convenient but conscious to themselves of none and very confident that what they had donâ— was most Justifiable by the constanâ— course and practice of their House and in it self most Just and Equitable they conceived it absolutely necessary for thâ— Vindication of themselves and the asserting of their Rights to pass likewise two votes in Answer to the two of the House of Commons 1. That the House of Commons entertaining the Scandalous Petition of the East India Company against the Lords House of Parliament and their Proceedings Examinations and Votes thereupon had and made are a Breach of the Priviledges of the House of Peers and contrary to the faire cor-respondency which ought to be betweene the two Houses of Parliament and unexampled in former times 2. That the House of Peers taking Cognisance of the Cause of Thomas Skinner Merchant a Person highly oppressed and injured in East India by the Governour and Company of Merchants of London trading thither and over-ruling the Plea of the said Company and adjudging 5000 l damages thereupon against the said Governour and Company is agreeable to the Laws of the Land and well warranted by the Law and Custome of Parliament and Justified by many Parliamentary Presidents Ancient and modern Two Conferences past between the Houses upon this occasion One asked by the House of Commons the other by the Lords and what past at both the objections of the one side and the others Answers What was said by the Commons against the Proceedings of the Lords and what by the Lords to maintaine what they had done the substance of all that was said on both sides I shall here set downe as briefly as can as I find them entred in the Journal Book of the House of Lords where they are now a Publick Record The Gentlemen of the House of Commons that managed the Conference on their parts endeavored to maintain their votes by shewing the reasons of them They said that Pleas being of two natures Common Pleas and Pleas of the Crown in this Case they said they did not meddle with any part of their Lordships Judicature concerning Pleas on the Crown this being of the First sort and those being of two natures Personal or Real actions and in both all proceedings must be by the Kings Original Writ And this being a Case between Person and Person and so a common Plea ought to be proceeded in the Ordinary way by the Kings Original Wriâ— Presidents were brought for this vshered in with a Preamble That where the party never pleades to the Jurisdiction of the Court it is ordinary for Courts to proceed though in Cases not within their Jurisdiction The Presidents cited were out of the Placita Parliamentaria four in Ed. 1. time 1. President 18. E. 1. Johannes de Insula against the Bishop of Winton fol. 33. John de Insula prosecutes for the King Complains that the Bishop had disposed of an Hospitall which belonged to Queen Eleenor the Kings Mother and ejected her Tenant the Bishop Pleads that he found his Church seised of that advowson petit Judicium si debeat sine Brevi Domini Regis inde respondere The Judgement is Et quia praedictus Episcopus invenit Ecclesiam suam seisitam de praedicta advocatione tempore Creationis suae Ideo ipse quoad hoc eat inde fine die ad praesens Dominus Rex habeat Breve versus ipsum Episcopum quod reddat ei Advocationem c. quoad Ejectionem inquiratur veritas per Patriam 2. President in the same Parliament 18. E. 1. The Case of Hugh de Louther and the Heirs of Henry de Edelynthorp F. 43 Where it was much insisted upon these words Nec est Juri consonum vel hactenus in Curia ista vsitatum quod ali quis sine Lege Communi Brevi de Cancellaria de Libero Tenemento suo respondeat Et maxime in Casu vbi Breve de Cancellaria locum habere potest There fore dictum est praedicto Adae quod sibi perquirat per Breve de Cancellaria si sibi viderit expedire 3. The Case of William de Valentia Earl of Pembrook Jone his Wife and Isabell le Mareschal 18. E. 1. p. 44. Isabell Complaines of the Earl for assuming Jurisdiction in the Commote or Hundred of Esterlow which is in the Kings County of Kermerdyn and not in Pembrook-shire which belongs to the Earl and ejecting her He pleads that he is seised of it in the Right of his Wife and they crave Judgement si sine Brevi Domini Regis inde debent respondere The Judgment is Quia praedicti Willielmus Johanna sunt in Seisina de praedicta Jurisdictione per discensum haereditarium non per Usurpationem seu Purpresturam quod eant inde sine die ad praesens Dominus Rex habeat Breve si voluerit The Gentlemen of the House of Commons observed upon this That if there had been a Crime as Usurpation or Purpresture such Cases had usually been tryed in the Lords House But then added That if that had been the Case much might be said now how the Constitution of the Government hath been altered since The 4 th President in the 18. of E. 1. F. 51. was the Case of Roger de Somerton and the Prior of Buttele Somerton followes for the King and by Petition Complaines that the Prior unjustly withheld from the King the mannor of Somerton The Prior Answers that he holds it in the Right of his Church of Buttele petit Judicium si debeat inde sine Brevi Domini Regis respondere The Judgment is Ideo praedictus Prior quoad hoc eat inde sine die ad praesens Dominus Rex habeat Breve c. And this though the King was concerned as was observed by them By these Presidents they said it did appear that in Cases of Free-hold there is no Proceeding without an original Writ and then necessarily and Demonstratively it must follow That the Lords can not Judge in these Cases for there was never any Writt Returnable Coram Dominis Spiritualibus
such a Writ But by the delivery only of a Declaration of Trespass and Ejectment any mans Inheritance of never so much value may be questioned and brought to Tryal if it shall continue his or no Nay There is an Act of Parliament 18 El. c. 14. which provides expresly That after a verdict given the want of an Original Writ shall be no Cause of Error to be pleaded in Arrest of Judgement but that Judgement and Execution shall follow So farr is it from being true that no Freehold can be judged without an Original Writ And faine would I aske what Original Writ they use in Chancery to sue men there for their Freehold Is it any more then for the Complainant to put in his Petitionary Bill of Complaint then take out a Writ of Subpoena for the Defendant to come in and answer by such a day just what was heretofore used in the House of Lords the Plaintiff put in his Petition and the House ordered a Writ of Summons to Issue out to call in the Defendant But in later times that House as is usuall for all Courts to alter their Method of Proceeding and find out some more compendious and easy way both for themselves and for Suitors so have they instead of a Writ as formerly which asked more time and charge to take out made it now that an Order of the House shall be sufficient for that purpose but they may returne to their Writs of Summons again when they please And as to Original Writs ow unseasonable is it and ggainst all reason to make it now an Objection against the Judicature of the House of Peers That the Proceedings there not being upon those Writs they ought not to meddle with matters of Freehold Since the Practice of the Law is now so changed that even Inferior Courts have left off the use of them whereas heretofore when all other Courts were by the Law and the practise of those times tyed to those Forms the House of Lords was not but exercised still their Judicature in their own Parliamentary way without Original Writs yet no such exception was then taken but all their Judgements were still allowed of approved and obeyed and punctually executed And the other Assertion doth not operate much neither viz. That it was never heard of a Writ Returnable Coram Dominis Spiritualibus et Temporalibus For if it be meant of Original VVrits what doth that signifie seeing they are not at all necessary no not used now for Commencing of suites even in Westminster-Hall much less in Parliament where the use hath ever been otherwise And if meant of other VVrits it is a foul-mistake For it hath been the Common practice of the House of Peers especially in former times upon any Complaint made to them by Petition to Order a VVrit to Issue out with the Petition annexed or containing the matter of it directed sometimes to the party himself petitioned against commanding him to appear sometimes to the Sheriff of the County commanding him to summon the party to appear before them at a certaine day and the Writ withall to be then returned so to enter into the examination of the busines and afterwards proceed to Judgement Ancient Presidents of this are sans nombre 25 E. 1. m. 14. Upon Complaint of the Arch-Bishop of York That the Advouson of the Rectory of Bridgeford was detained from him by Boniface de Salucijs a Writ reciting the matter complained of is ordered to be sent unto him requiring him to appear in Parliament the morrow after St. Gregory the Pope at Carlile and shew cause Quare ad finalem expeditionem praedictorum negotiorum minime fuerit procedendum why the House should not proceed to a final dispatch of the busines and be was enjoyned to bring the Writ with him habeas ibi tunc hoc Breve is the Close of the Writ The Printed Book of the Placita Parliamentaria in Ed. 1. time is full of Presidents of this Nature I have in this discourse cited very many both out of that Book other Records of Parliament under the other Kings I shal not therefore heap uy any number here though it were easie to do I will only give a short account of one which seemes to me a memorable one out of that Book of the Pacita Parliamentaria p. 1.57 the 21 of E. 1. Magdulphus sonne of Malcolin Earl of Fife in Scotland complaines in Parliament to King Edward That John King of Scotland had wrongfully dispossessed him of certain Lands in Scotland called Reyes and Crey Whereupon King Edward directs his Writ to the Sheriff of Northumberland commanding him to go into Scotland taking persons with him to testifie it and there deliver a Writ of Summons to the King of Scotland to appear before him such a day ad respondendum praedicto Magdulpho super praemissis et ad faciendum et recipiendum ulterius quod Justitia requireret Which was by the Sheriff performed at Striveling the morrow after St. Peter ad vincula who made his returne accordingly to the Parliament And the King of Scotland appeared at his day and was asked if the Kings Writ had been delivered to him by the said Sheriff which he acknowledged and said further Quod semper paratus est et erit Brevia et mandata Regis ut Domini sui admittere Then be was bid to deliver in the Writ and he said he had delivered it to his Chancellor and the Chancellor examined said he had it not there But yet upon the Kings acknowledgement that he had received such a Writ his appearance was admitted and be was willed to Answer to the matter of complaint put in by Magdulphus His Answer was That he was King of Scotland and could not without the Counsel and Advice of the good men of his Kingdome speak to any thing that concerned it This was judged by the Parliament to be Contempt us manifeslus et Inobedientia expressa and it was further Ordered that three of the Principal Castles of Scotland should be seised into the Kings hands and so remain Quo-usque de contemptu et Inobedientia praedicta cidem Domino Regi satisfecerit But the King of Scotland came before the pronouncing of the sentence Coram Rege et Consilio suo et fecit Domino Regi quandam Supplicationem ore suo proprio per verba subscripta which words were these Sire Ieo suy vostre home du Royaulme d'Escoce et vous prie que de ceo que vous me avez mis adevant que touche les gents de mon Royalme aussy come a moy voillez mettre en soeffrance jesques a taunt que ieo ay a eux parle que ieo ne sey suppris per defaute de Conseil desicum les gens que cy sont oue moy ne moy voillent ne osent conseiller sauns autre du Royaulme et quand ieo me averay a eux consaile ieo vous respondray a vostre primer Parliament apres