Declaratio Judicium Per quod cousider atum fuit in praesenti Parliamento per praedictos Dominos tunc ibidem existentes de assensu dicti Domini Regis quod praefatus nunc Comes nihil capiat per Petitionem aut Prosecutionem suam praedictam Et ulterius tam Domini Spirituales quam Temporales praedicti Judicium Declarationem praedictam versus dictum Johannem quondam Comitem Sarum ut praemittitur habita sive reddita de assensu ipsius Domini Regis asserunt fore esse bona justa legalia Et ea pro hujusmodi ex abundanti decreverunt adjudicaverunt Out of the last recited Precedent of 2 H. 5. may be observed That the Temporal Lords by Assent of the King may give Judgment on Offenders for capital Crimes and therefore Whereas it is said 2 H. 4. That the Judgment belongs only to the King and Lords that is herein explained The King's Assent ought to be to Capital Judgments and the Lords Temporal to be only Judges therein and not the Lords Spiritual But in Misdemeanors the Lords Spiritual and Temporal are equal Judges and the King's Assent is not necessary as shall appear §. 2. In what Cases the King's Assent is necessarily required Touching the King's Assent it is expressed in divers Judgments on Capital Offences 4 E. 3. against Mortimer Anno eodem against Simon de Bereford And there be divers other Judgments that year of this Nature wherein the King's Assent is not expressed but against John Matrevers Les Judices Peeres de la terre Judges de Parlement adjudgent agardant que le dit John be drawn hanged c. not mentioning the King's Assent And there are two other Precedents of the same Nature briefly Recorded Estre ou tiel Judgment est accorde que soit sait de Burges de Bayons John Dever And Item outiel Judgment est accorde de Tho. de Gurney W. de Ogle not mentioning by whom the said Judgments of Death were given 2 H. 4. The Judgment against the Earl of Salisbury and others for Treason is by the King's Assent and so is the Judgment of H. 4. against the Earl of Northumberland and 11 21 R. 2. upon those several Appeals In all which the King's Assent is recorded And so the Articles objected against Simon de Burley without the King's Assent and against his will which I shall here recite Item The aforesaid Dukes Earls of Arundel and Warwick Anno 50 E. 3. Richard Lyons pleading a Warrant from the King which he could not shew followeth thus c. And Tho. Mortimer continueth his traiterous purpose and by force of men took and imprisoned divers men your Liege c. Amongst others Simon de Burley Knight and him they carried in the Parliament at Westminster held the Morrow after the Purification of our Lady in the 11th year of your Reign and there were surmised against him divers points of Crime and Treason and thereupon was demanded of every Lord there present in Parliament his Advice of the said Simon touching the said Crime And afterwards the said Dukes and Earls of Arundel and Warwick would know your Advice Thrice Redoubted Lord. You answer plainly That the said Simon de Burley was not guilty of any the said Points and then they took upon them traiterously to have constrained you to have given your Assent to the Judgment which they have purchased against the said Simon upon the Points aforesaid And you Thrice Redoughted Lord would not consent to any Judgment to be given against the said Simon And yet notwithstanding the aforesaid Dukes and Earls took upon them Royal Power in prejudice of you and derogation of your Crown and without your Assent and against your Will and in your Absence and in the Absence of many other Peers of Parliament and without their Assent and against their Will awarded that that said Simon should be drawn c. and thereupon caused him to be beheaded but traiterously against your Crown Peace and Dignity This I have recited at large Unto which the Duke of Gloucester made no Answer being dead before the said Earl of Arundel pleaded the King's Pardon which was not allowed him The said Earl of Warwick confessed all the Articles in the said Appeal and put himself upon the King's Grace and the said Tho. Mortimer could not be found This Parliament begun at Westminster Die Lunae post Festum Exaltationis Sanctae Crucis and was adjourned to Shrewsbury And on Tuesday 28 January the Parliament there shewed unto the King how that they in the said Parliament at Westminster had accused and impeached John de Cobham in the 11th year of the King's Reign with others convicted in this Parliament accroaching to himself Royal Power in Judgment Awarded that the Lieges of the King Simon de Burley and James de Barners Knights should be Drawn Hanged and Beheaded without Assent of the King and against his will and in his absence and in the absence of many other Peers of Parliament who with held themselves and would not sit in such Judgment and against their will traiterously against the Peace of the King his Crown and Dignity And prayed our Lord the King to cause the said John de Cobham to joyn in this present Parliament to answer to the things aforesaid and to ordain such Judgment against the said John de Cobham as the Cause demands The said Jo. de Cobham was brought c. And touching the said Judgment awarded against the said Simon and James the said Joh. de Cobham said That it was told him by them who were present then That it was the King's Will to make such Judgment against the said Simon and James convicted of the said Judgment and Award which he had so given against the said Simon and James notwithstanding his Answer Whereupon c. Judgment was given against him and he adjudged a Traytor Here is objected That the Judgment against Simon de Burley was given by the Lords without the King's consent Secondly Against his Will Thirdly In the King's Absence Fourthly In the Absence of many of the Peers and against their wills Touching the First viz. The King 's not Assenting It may be Objected That the Lords gave Judgment against Weston 1 R. 2. without the King's Assent but yet not against the King's Will for they respited the Execution until the King might be informed thereof And the Reason then given for the said Respite was For that the King is not yet informed of the manner of this Judgment But whether the Lords proceeded to that Judgment against Weston before they informed the King because the King's Assent is not necessary or for that it being the last Day of the Parliament they had no leisure to inform his Majesty thereof let the Reader judge yet it seemeth to me that the King's Assent is necessarily required in Capital Causes and Judgments for these two Reasons First For that all
that whereas he being Chancellor was bound by Oath to further the King's Profit and Commodity in all things He notwithstanding contrary to the said Oath and not regarding the King 's great necessity had purchased of the King Lands and Tenements to a great value procuring the same by reason of his Office to be Surveyed at an under value 2. Item Whereas at the last Parliament nine Lords were appointed to see and examin the State of the King and Realm which being done and their Advice delivered to the King as well by word as writing by what means the same might best be remedied The Chancellor promised in open Parliament that the same should be put in Execution which was not done through his default he being a Principal Officer 3. Item Whereas the Subsidy granted the last Parliament was appointed by the assent of the King and Lords in what sort it should be expended and not other ways employed in this was his default he being Principal Officer 4. Item Whereas John Tidman had a certain Annuity from E. 3. which he had since forfeited and the payment thereof was discontinued for the space of 20 or 30 years The said Chancellor knowing this purchased his Interest and procured the King to confirm the same unto him c. 5. Item That whereas the great Master of St. Antony being a Schismatic had thereby forfeited to the King all his Revenue within this Realm the same Chancellor had taken the same to Farm of the King for 20 Marks And whereas the Master should have livery thereof again he could in no wise get the same until he had bound himself to pay 100 l. yearly to the Chancellor and his Son 6. Item That during the time of his Chancellorship there had passed divers Charters of Pardon as well for Murders Treasons and Felonies as also for rasing of Rolls and imbezelling of Laws and Records and especially since the beginning of this Parliament a Charter of Franchises was granted to the Castle of Dover to the disinheritance of the Crown and to the Subversion of all the Places and Courts of the King and his Laws 7. Item That at the last Parliament divers Sums were allotted for the defence of the Town of Gant notwithstanding the same Money was lost c. by his default c. Of all which Articles the Commons demand Judgment of the Parliament c. I have been long upon this considering all the Precedents follow at large These are the most formally set down of all the Accusations hitherto of the Commons yet most of these are very general and uncertain Howbeit the Chancellor took no exceptions to the insufficiency thereof but answered to every particular The next Accusation of the Commons is 11 R. 2. in the 21. of the King they accused divers of those whom the Lords had first appealed whereof when we speak of all Appeals Anno 21 R. 2. the Commons accused and impeached of Treason the Archbishop of Canterbury Numb 15. and demanded Judgment against him and had it Numb 16. Eodem Parl. The Commons accused and impeached of Treason Tho. Mortymer and John de Cobham a Baron of Parliament and had Judgment against them both Anno 28 H. 6. William de la Pool Earl Marshal and Duke of Suffolk was accused and impeached by the Commons in manner following viz. The Duke being the great Favorite of the King and Queen the common People laid all the fault of the evil Government on him and made Ballads thereof which I have seen taxing his Loyalty to the King The Parliament of 28 H. 6. begun the 6th of November and held to the 6th of December and was then Prorogued to the 22th of January The Duke of Suffolk whether provoked by the Ballads then made on him or by some Speech in the House of Commons whereof nothing is recorded did require of the King that he might be specially accused and be heard to answer for that many reported him to be an untrue man and he made a solemn Protestation of his Loyalty wherein he sheweth that his Father and three of his Brethren died in the Service of the King and of his Father and Grandfather That he himself had served 34 years in the Wars being then but a Knight That he had been taken Prisoner and paid 20000 Marks for his Ransom That he had been 30 years of the Order of the Garter Chancellor to the King 15 years and had been 17 years in the King's Wars without returning home And he prayed God so to pardon him as he had been true to the King and required his Purgation Numb 14 15. Whether this was sent to the Commons or what notice they had of it appears not but on the 2th of January the Commons required the Duke might be committed to Ward for his own Confession for that as I concieve he himself confessed That the general Fame went of him And the Lords on Consultation of the Justices thought the same to be no good Cause of Commitment unless some special Matters were objected against him Numb 16. On the 28th of January the Speaker declared to the Lords how the Duke of Suffolk as it was said had sold this Realm to the French who prepared to come hither And that the said Duke for his own defence had furnished Wallingford Castle with all Warlike Munition And then on request the Duke was committed to the Tower On the 7th of February the Chancellor and some other Lords were sent by the King to the Commons a thing not usual but wherefore they were sent is not expressed happily to be informed what they could say against the Duke or to reconcile the business But the Commons delivered to this Chancellor and those other Lords a Bill of Articles against the Duke wherein they accused him of divers Treasons viz. For intending to marry his Son to the Heir of the Duke of Somerset and thereby for want of Issue of the King to claim the Crown For practising with the French c. Numb 18 19. and they require Prosecution against him Numb 17. March 19. The Commons delivered another Bill of less Offences against him Numb 28 29 30 c. requiring those Articles also to be inrolled and the Duke put to his answer These before recited are all the ancient Precedents I find recorded the following are of later times Anno 1 Jac. The Commons accused and impeached by word of Mouth Sir Giles Mompesson and Sir Fr. Michell Knights for many Oppressions done to the People They impeached them to the Lords at a Conference and afterwards delivered their Declaration against them First Concerning a Patent for Inns and Osteries Secondly A Monopoly for Gold and Silver Thread Thirdly Concerning a Patent of Concealments Eodem Parl. They accused Francis Lord Viscount St. Alban at a Conference of Bribery and Corruption in his Office of Chancellor They delivered no Writing but a Committee of the Lords having considered the Proofs and drawn up
and that they are notorious and known for truth unto the Lords and all the People of the Realm And the Lords also having examined these Articles said all these things contained therein are notorious and known They speak not a word of any one witness examined or any other proof then the common fame For this Cause and for that the said Earl was not brought to Judgment nor to answer but condemned unseen and unheard upon common Fame only without any legal Proof The whole Parliament did very justly Repeal the said Judgment and Record declaring it to be erronious and defective in all points And the Lords were willing to damn the whole Record in all points least haply it might be alledged against themselves another time for Precedent Anno 15. E. 2. The Lords and Commons joyned in the Accusations against the Spencers and for that the Lords had no Record in their own pursuit upon the Cause contained in their award and they ought not to be their own Judges c. having been Accusors no exceptions were taken to the Articles but other Errors assigned quod vide where it is said to be sans Accusament so that they repealed it not for that there was no Accusation but for that he was not brought to his Answer Again That those words Sans accusament should simply signify no Accusation is only the Averment of the Petition The Judgment doth not say that there was no accusation but that it was erronious in all points And so it was no proof being produced but common Fame to prove the Answer And this first error bred a second I do not well understand the meaning of these words Sans accusament That a Peer ought to be Indicted for Capital offences in Parliament But having perused all the Judgments I do not find any one Peer indicted in Parliament In 11. R. 2. Numb 7. All the Lords Spiritual and Temporal claimed as their liberty and franchise that the great matters moved in this Parliament and to be moved in other Parliaments in time to come touching the Peers of the Land ought to be admeasured adjudged and discussed by the course of the Parliament and not by the Civil-Law nor by the Law of the Land used in the more base Courts of the Realm which the King granted in full Parliament eodem Anno Rot. Appeal 290. This is said to be their ancient custom viz. To be adjudged according to the use of the Parliament only Then no Peer can be indicted in Parliament for that it is contrary to the use of Parliament Let this suffice for the confession and rectifying mine own former Error herein But a Lord of Parliament may be indicted out of Parliament and by the Kings command proceeded against in the next Parliament upon the same indictment as in these Subsequent In the same Parliament the Lord Berkley was arraigned for the death of Ed. 2. and whether out of his humility or otherwise he waved his Peerage and put himself on the Tryal of his Country the Articles against him though not expressed but by the Inference out of his Arraignment are for the murder of King Ed. 2. at Berkley Castle in the County of Gloucester unto which he answered that he was then sick at Bradley in Worcestershire and pleaded not guilty of the death of the said King Et de hoc de bono malo ponit se super Patriam The Precedent shall hereafter be added at large It begins thus Placita Coronae tenta coram Dom. Rege Ed. 3. post conquestum Angliae in pleno Parliamento suo predicto Et allocutus de hoc quod cum Dominus Edwardus nuper Rex Angliae Pater Dom. Regis nunc in custodiam Thomae cujusdam Johannis Matrevers extitit deliberatus ad salvo custodiendum Castro ipsius Thomae de Berkley in Com. Gloucester in eodem Castro in custodia ipsorum murderatus extitit interfectus qualiter se velit de morte ipsius Regis acquietare dicit c. Numb 16. Then follows his Answer Here the cause why the Lord Berkley was tryed is mentioned but the Articles objected against him and by whom he was accused who questioned him whether the Chancellor or Steward of England or who else All these circumstances are omitted It appears not I say in what manner this crime of the Lord Berkley was presented to the Lords whether by the former general Information against Mortimer autres de la Covyn or by some such Particular Information against him alone which I rather believe Some such Information there must be of necessity else how could he be question'd for his crime in Parliament But here it appeareth that the Lords brought him to his Answer which they omitted to Mortimer and in that Point their Proceedings against Mortimer were erronious And had his manner of Accusation been erronious also No doubt but the Lords would have avoyded that error now against Berkley The manner how Berkley was arraigned here in pleno Parliamento is explained in the Precedent of 1 R. 2. Gomeniz and Weston who were brought Prisoners by the Constable of the Tower before the Lords in full Parliament sitting in the white Chamber where they were arraigned at the commandment of the said Lords in full Parliament by Sir Richard le Scroop Knight Steward of the Kings House The words full Parliament signify the Lords and Commons For that Record saith the Commons prayed that all such that have surrendred any Forts c. might be put to their Answer before the Lords and Commons c. Whereupon they were brought to their Answers in full Parliament for that Offence So here I conceive the Lord Berkley being accused by the King for the murder of King E. 2. was brought before the Lords and Commons For the Commons are to be present at such arraignment as shall be shewn hereafter and the Clerk of the Crown having read the Accusation against him Allocutus fuit That is the Lord Steward of England recited the Fact whereof he was accused and demanded of him how he could acquit himself This I conceive to be the manner thereof Vide the Appeals 21 R. 2. for the form thereof I marvel the Lords permitted the Lord Berkley to wave his Peerage and put himself super Patriam Anno 4 R. 2. Sir Ra. Ferrers Knight was brought into Parliament under the guard of the Marshal of England and there arraigned on the Kings behalf for suspition of Treason c. Numb 21. In the Process against him is recorded that for suspition of Treason surmised against him he was arrested in the Marches of Scotland by Monsieur de Lancaster and other Lords Temporal there being in the said Marches and that he was brought under the said Arrest by commandment of the Lords to Answer in this Parliament to that which shall be surmised against him in special concerning certain Letters which were found and sent to the King and his Councel The Letters
were also recorded and read in Parliament Numb 17. 18 19 20. but the Information exhibited against him whereupon he was arraigned is not recorded It is only said He was arraigned Ex parte Domini Regis §. 3. Here might be two Questions First Whether was this Sir Ra. Ferrers legally brought to his Answer in Parliament by the commandment of the Duke of Lancaster and those other Lords who were then with him in the Marches of Scotland Secondly Whether he being no Baron or Lord of Parliament for he never had Summons might be legally arraigned in Parliament for life and death upon an Information Ex parte Dom. Regis which is contrary to the Law as was resolved in Parliament 4 E. 3. Numb 2. and 6. For resolutions of these doubts I am of opinion that the Duke of Lancaster might send Sir Ra. Ferrers to the Parliament because it was then sitting and might examine the Treason whereof he was suspected though they could not proceed to Judgment against him without the Commons he being a Commoner and not their Peer And it fell out in the Examination of this business they found the Letters to be counterfeited and so he was acquitted thereof And so far their proceeding was not illegal For the Parliament may entertain and examine any Cause and then direct the Judgment thereof to its own proper Court if it belong not unto them as they did in 5 R. 2. Numb 43. 44. Here Sir William Cogan Knight being accused by Sir Richard Clurdon of matter sounding to Treason After the Lords had heard the Cause they remitted both the parties to the Common-Law And in this Case of Sir Ra. Ferrers if they had found he had been guilty they might have proceeded to Judgment against him according to the Precedent of Sir Tho. Mortimer in 2 H. 4. who was indicted in London and the Indictment returned into the Chancery and thence brought into the Parliament where the Commons affirmed the same and prayed Judgment against him Anno 2 H. 4. The Lords Temporal gave Judgment on one Tho. Holland Earl of Kent John Holland late Earl of Huntington John Mountague late Earl of Salisbury the late Lord de Spencer and Ralph Lumley who were beheaded in a War they had Trayterously raised against the King This Judgment is entred but not the Information Ex parte Dom. Regis which is necessary to be understood for had it been omitted his Son Thomas would without doubt have assigned that for one of the errors in his Petition to reverse the said Judgment 2 H. 5. apud Leicester which he did not though he assigned for an Error That his Father was put to death without an accusation In the Parliament begun at Westminster Feb. 6. 1 Car. 1. and continued until June 25. Anno 2. ejusdem Regis John Earl of Bristol was charged with High Treason in this manner viz. Primo die Maii. The said Earl of Bristol being brought to the Bar and kneeling till the Lord Keeper wished him to stand up The Lord Keeper told him he was sent for to hear his Charge of High Treason And Mr. Attorney General being at the Clerks Table began to open his Charge but being interrupted by the said Earl who with much importunity exhibited Articles against the Duke of Buckingham then present which as he said he conceived to be Treason and required of the Lords that his Testimony against the Duke and the Lord Conway against whom he then also delivered Articles might not be made invalid no more then the Charge against himself which he affirmes was procured by the said Duke yet notwithstanding the head of the Kings Charge were opened against him by Mr. Attorney and then the said Articles against the said Duke and against the Lord Conway were read And it was ordered by the Lords of the Parliament that the Kings Charge against the said Earl should be first heard and afterwards the Earls Charge against the Duke c. But yet so as the Earls Testimony against the said Duke be not prevented prejudiced hindred or impeached Secundo die Maii. The House was moved that the Earl of Buckingham might be indicted according to the Stat. of 35 H. 8. the Treasons committed being beyond the Seas as was objected and that being certified to both Houses they to proceed against him by Tryal of Peers But their Lordships did not resolve on the manner of proceeding Then the Houses were moved that Mr. Attorney might provide an Indictment against the said Earl to be returned to the House on Saturday next Maii 6. And if he doubt of the Form to confer thereof with the Judges And if any great difficulty appear to resort to their Lordships and acquaint them with it And it was ordered that Mr. Attorney proceed with the preparation but the Houses not to be concluded at their next meeting on Thursday And the Sub-Committee for Priviledges c. to search for Precedents in the mean time Die Jovis Maii 4. The Sub-Committee for Priviledges reported one onely President viz. the Tryal of the Earl of Northumberland 5 H. 4. which the Clark read unto them out of the Parliament Roll of that year Whereupon after long debate It was ordered first that Mr. Attorney prepare the heads of the Charge against the Earl of Bristol and to bring them in on Saturday next Secondly The Earl then to receive his Charge at the Bar. Thirdly That when the Earl hath heard his Charge the Lords will determine when he shall Answer But he is not to be inhibited if he will Answer presently Fourthly The Cause of the Earl of Bristol is to be retained wholly in this House After the Earls Charge is brought in and his Answer then their Lordships to proceed to hear Mr. Attornies proofs amongst themselves and then to put the Cause into a way of Proceeding in this House Die Sabati Maii 6. The Lord Keeper shewed how Mr. Atturney desired that in regard the House hath already heard the nature of the crimes objected against the said Earl of Bristol That the Clark of the Crown in the Kings Bench may attend the reading of the Charge here according to a Precedent of former times which was denyed in regard the Clark of the Crown in the Kings bench is no Minister of this Court And also for that it was ordered May 4. that this Cause was wholly to be retained within this House The said Order being read the Earl was brought to the Bar and the Lord Keeper commanded Mr. Attorney to read the Charge against him who read the same out of a Parchment ingrossed in Court-hand and signed by himself Ro. Heath It containeth diverse Articles of High Treason and other great Enormities Crimes Offences and contempts committed by the said Earl c. prout postea Thus much touching the Charge against the said Earl by Information in the Kings behalf A Question was demanded of me and others in private the last Parliament
said unto the said Sir Ralph That forasmuch as the Matter stands so much upon Treason That by the Law he ought not to have Councel in his Case of no earthly Creature but obliged himself to answer at his peril This last Answer was given upon deliberation And 5 R. 2. Numb 44. Sir Richard Cogan Knight being accused by Richard Clevedon Esquire for extorting 200 l. from the Prior of St. John's of Jerusalem in a riotous manner required Councel which was denied him for that the Cause touched Treason 28 H. 6. The Duke of Suffolk being accused of Treason by the Commons desired Copies of the Articles but no Councel and he answered without Councel Primo Car. 1. In the Parliament begun Febr. 6. The King's Attorney exhibited Articles of Treason and misdemeanor against John Earl of Bristol and he had no Councel allowed him which was on this occasion Anno 21 Jac. The Earl of Middlesex was denied to answer by Councel touching Misdemeanors only that Precedent of 10 R. 2. of Michael de la Poole being mistaken as I conceive And afterwards the Lords considering the Inconveniences that might happen thereby did order that Councel should be allowed to all Delinquents in all Cases generally At the Voting of which Order the King and Prince were present and I did expect some Reply thereunto on the King's behalf and especially observed whether the Prince would any ways dislike of it either in Words or Countenance and he shewed none which made me verily believe that he had been acquainted therewith beforehand but he was not as I shall make it appear In this present Parliament upon reading the Articles of Treason and Misdemeanors against the said Earl 6 Maij and upon the Earl's Answer to them on the sudden The Journal is The Lords did answer that he should have Councel allowed him to plead his Cause But on Monday the 8th of May the King sent a Messenger to them That he not suing for a Default in Cases of Treason and Felony It is an ancient fundamental Law of this Kingdom and desired the Lords to proceed with that Caution that ancient fundamental Laws may receive no blemish nor prejudice On the 15th of May the Lords answered this Message That by an Order Dated May 24. 21 Jac. Anno 1624. Counsel was then present and they had allowed the Earl of Bristol Councel before the Message came May 14. His Majesty is content the Earl of Bristol to have Councel although his Majesty knew that by the Law he ought to have none but takes Exceptions to that Order of the 24th of May 1624. That it was occasioned by the Earl of Middlesex whose Cause was only Criminal which never till now extended to Cases Capital And that the Judges were neither advised with therein nor the King's Councel heard for his Majesty and therefore his Majesty is not satisfied about the general Order but will advise c. The Lords thereupon allowed him Councel to plead c. This Parliament of 6 Feb. 1 Car. 1. was dissolved before the Cause of the Earl of Bristol was heard and determined and that the said Earl was sued in the Star-Chamber for the very same Matter contained in the Articles against him in Parliament All which were but Misdemeanors And if it be lawful for me to speak freely I believe the Lords thought they were but Misdemeanors when they allowed him Councel in Parliament But in Cases of Misdemeanors only the Party accused was never denied Councel Anno 10 R. 2. The Commons accused Michael de la Poole of many Misdemeanors in open Parliament before the King Afterwards in the King's Absence the Chancellor said first to the Lords That he was Chancellor of England and for the time represented the King's Person in his absence and demanded whether he ought to answer in the Presence of the King since he was impeached of Acts done whilst he was Chancellor This received no Answer Secondly He said That he had appointed by the Advice of his Councel Monsieur Richard le Scroope his Brother-in-Law should have the words of his Answer to the first Impeachment Whereunto the Lords said That it was Honest for him to speak by his own mouth And thereupon he made Protestation that he might add to and take from that which should be honourable and profitable for him The which things unto him were granted And the said Chancellor declared as well by himself as by the mouth of the said L. Scroop That c. I note here that Councel was not denied him but that it was only told him It was honest for him to answer by his own mouth Anno 7 R. 2. The Bishop of Norwich for Misdemeanors in general Numb 15. was particularly charged by the Chancellor Numb 18. The Bishop said That albeit in this Case he ought to have Counsel yet making Protestation That at all times he might amend his Answer he would answer in person and so he did Numb 19. Anno 1 Car. 1. The Duke of Buckingh being accused by the Commons of Misdemeanors and Copies of the Impeachments and Answered by Councel in this manner viz. Die c. The Duke being in his Place and standing his Councel came to the Bar and then read the Dukes Answer as it was penned in writing Yet sometimes in Cases of Misdemeanors when the Party accused hath demanded the Copies of the Articles and Councel and Time to answer the Parliament hath compelled them to make a present Answer without Councel but this is rare and I have seen but one Precedent of it Anno 5. R. 2. Die Animarum Numb 45. The Mayor Bayliffs and Commonalty of Cambridge were accused by c. For that they in the late Tumults and Wars confederated with other Misdoers did break up the Treasury of the University and compelled the Chancellor and Schollars to release to the Mayor all their Liberties and all Actions c. In Num. 46 47. Several Writs were sent to command them to appear They appearing at the Day and answering to such Articles as were objected by the King's Councel and delivering in the two Releases which were cancell'd Numb 48. Then the Chancellor and Scholars exhibited divers Articles against them by way of Petition Upon the reading whereof it was demanded of the said Mayor and Burgesses what they would say why their Liberties should not be seized into the Kings hands as forfeited And they required Copies of the Articles and Councel and Respite to answer Numb 54 55. To the Copy of the Articles it was answered That inasmuch as they had heard them read it should suffice for by the Law they ought to have no Copy And touching Councel it was said That wherein Councel was to be had they should have it and therefore they were then to answer to no Crime nor Offence but only touching their Liberties Numb 56. After many dilatory Shifts the said Burgesses submitted themselves to the King's Mercy touching their Liberties only saving
Conferences wherein his Majesty by Testimony becometh a Witness and in case the Earl should be convicted his Commission cometh to the Crown c. he desired their Lordships to put his Majesty in mind thereof for the declining his Accusation and Testimony 9 Maij These Questions were proposed to the Judges 1. Whether in Treason or Felony the King's Testimony is to be admitted or not 2. Whether Words spoken to the Prince who afterwards is King make any alteration in the Case And the Judges were to deliver their Opinion therein on the 13th Day of the said Month of May. And on Saturday Morning being the said 13th Day the Judges were desired to deliver their Opinions The Lord Chief Justice said They appointed to meet and to consider thereof and Mr. Attorney desired to know the time of their Meeting and before that time he brought them a Message from the King viz. That his Majesty was so sensible of his Honour that he would not suffer the Right of his Crown which may justly be preserved to be dampnified in his time That they might deliver their opinion in any particular Questions concerning the Earl of Bristol but not in the general Questions whereof his Majesty could not discern the consequence which might happen to rhe prejudice of the Crown Every particular Case varying according to the circumstances 4 E. 3. The Articles were read against Roger Mortimer and it followeth thus Wherefore our Lord the King doth charge our Earls and Barons Peers of this Realm That forasmuch as these touch him principally and all the People of this Realm That you do unto the said Roger Mortimer right and lawful Judgment such as appertaineth to such an one to have who of all the faults abovesaid is very guilty as he believeth And for that the said things are notorious and known to be true unto you and to all the People of the Realm This was all the Proof produced against Roger Mortimer The Lords hereupon judged him But afterwards Anno 28 E. 3. Numb 10. they reversed it as erroneous so that although the King's Testimony confirmed by the common Fame was 4 E. 3. received against Roger Mortimer yet it was afterwards adjudged Nul Accusament in the 28th of the said King E. 3. In that Parliament of 18 Jac. divers Witnesses were examined in open House in the Causes of Mompesson and the Lord Chancellor upon Interrogatories agreed on beforehand and divers at a Committee And it was resolved That none might be examined upon any thing that might accuse Whereupon the Earl of Southampton one of the said Committee signified That a Scruple did arise Whether Sir Ralph Horsey should be examined what Bribe he gave to the Lord Chancellor and upon the Vote it was agreed he should dissentiente Comite Dorset Eodem Anno The Lords did find that the Testimony of divers of the House of Commons was necessary touching the Complaint against Mompesson and therefore sent a Message to this effect The House of Commons before their Complaint exhibited against the Lord Cobham and Doctor Feild for a Bribe concerning Egerton's Case 18 Jac. examined one Davenport but not upon Oath The Lords when they had examined Davenport found that the Case was not so foul as he related it unto the Commons and therefore sent his Examination again unto them and then punished him for his false Relation CHAP. V. The Judgment FIrst Unto whom the Judgment belongeth and the King's Assent and of the Presence of the Spiritual Lords the Commons and the Judges Secondly The Judgment it self and by whom it was demanded and by whom rendred In making of our Antient Laws the Commons did Petere the Lords Assentire and the King Concludere So in Judgments on Delinquents in Parliament the Commons might accusare petere Judicium the King assentire and the Lords only did judicare §. 1. That the Judgment belongeth only to the Lords appeareth by all the old Records that I have seen prout 4 E. 3. against Mortymer The Earls Barons and Peers did Award and Judge by assent of the King c. 7 H. 4. In the Case of the Earl of Northumberland Protestation was made by the Lords That the Judgment belonged unto them only For the clearing of this Point That the Judgment belongeth to the Lords only vide the Protestation of the Commons 1 H. 7. which excludes the Commons from any Right thereunto viz. On Monday Novemb. 3. The Commons made their Protestation in manner as they did in the beginning of this Parliament and then further declared to the King That no Record in Parliament be made against the Commons That they are or shall be Parties to any Judgment given or hereafter to be given in Parliament Unto which it was then answered by the Archbishop of Canterbury by Command of the King That the Commons are Petitioners and not Demanders and that the King and the Lords have ever had and of Right shall have the Judgment in Parliament in manner as the Commons themselves have declared saving in Statutes to be made and in Grants of Subsidies and the like though to be done for the common profit of the Realm the King will have especially their Advice and Assent And that this Order be held and kept at all times to come This excludes the Commons from all Right to Judgment But whereas it faith the Judgments in Parliament belong only to the King and Lords That is to be understood touching the King's Assent only as apppeareth by the Replication of the Parliament in this Point in 2. H. 5. which was thus In the Parliament at Leicester 2 H. 5. Numb 11. Tho. Earl of Salisbury Petitioneth to reverse a Judgment in Parliament against John Earl of Salisbury his Father in 2 H. 4. and one of the Errors assigned was for that the Judgment was not given by the King but by the Lords Temporal only whereupon the Earls of the Parliament at the King's Commandment gave Copies of the said Judgment of 2 H. 4. and of the said Errors assigned unto the Kings Serjeants at Law then present Ad sequentem solutionem Juris Regni in hac parte avisarentur Super quod Servientes ad Legem crastino die Domino Regi ac Dominis Spiritualibus Temporalibus praedictis hoc in Parliamento petierunt scrutinium pro Domino Rege in hac parte Quibus dictum erat ex parte Domini Regis Quod ipsi procederent ulterius absque aliquo scrutinio habendo quoad declarationem judicium super supradicta c. And afterwards Day was given at the next Parliament which was held at Westminster eodem Anno 2 H. 5. In which Parliament the said Judgment of 2 H. 4. being examined and discussed at full videbatur tam dicto Domino nostro Regi quam etiam Dominis suis antedictis c. quod idem Judicium Declaratio praedicta versus eundem Johannem c. sunt fuerunt bona legalia
They met at Westminster June 19. and were assisted by the Lord Treasurer Lord Keeper Lord Privy Seal the Master of the Rolls and the King 's two Serjeants c. and they called the Fishmonger before them and cause to be recited the said Accusation and the Chancellor's Answer and then demanded of him what he could say why he should not undergo the Penalty of the Statute against such Scandals especially whenas the Chancellor hath acquitted himself in Parliament and is yet ready to acquit himself by any way possible The Fishmonger denied that he slandered the Chacellor but the Clerk only c. The Commissioners considering the Accusation and Answer in Parliament and especially that the Fishmonger said he could not have Justice in his Cause before the Chancellor the contrary whereof was expressed and proved out of the Records of the Chancery They adjudged him guilty of Defamation and to pay one hundred Marks to the Chancellor and to be imprisoned until he could pay the same and a competent Fine due to the King It should seem the Lords could find no time to examine the Injustice he complained of and therefore referred it to the Judges Anno 6. R. 2. Octab. Mich. Numb 59. Divers Bills were exhibited this Parliament by the Mayor Aldermen and Citizens of London concerning the Fishmongers and the said Mayor and Aldermen and Fishmongers were present at the reading thereof where Nicholas Exton who spake for the Fishmongers prayed the King to receive him and his Company into his Majesties protection Numb 59. which was granted Numb 60. Then one Walter Sybil a Fishmonger craved Audience and said These Bills were not exhibited for any good zeal to the Commonweal but for meer Malice to the Fishmongers for that the chief Exhibiters of these Bills being commanded to prison for sundry Misdemeanors in the time of E. 3. were then imprisoned by certain of the Fishmongers who then were chief Officers in London for which cause Malice was born at that time Numb 60. To that one John Moore a Mercer answered The Citizens of London went to keep the Peace towards them unless they went about to let into the said City the Rebels of Kent and Essex as the said Walter and others did Numb 60. The said Walter Sybill took advantage of those words and desired the Lords to bear witness John Moore thereupon expounded his words saying as the Report then went and prayed the Lords that the Truth thereof might be further enquired of in the City There is one only Precedent of a Complaint made by a private person in the House of Commons and of the Commons proceeding therein against a Lord of the Parliament which was thus Anno 15. H. 6. Tho. Philips exhibited unto the Commons his Bill of Complaint against John Bishop of London for his long Imprisonment upon suspition of Heresie The Commons sent up the Bill being written in Paper amongst other to the Lords without any Message for ought appeareth upon Record On Monday following the Bill was read and the Lords Excogitabant That it did not belong to their House de talibus frivolis rebus consultare and returned it to the Commons Hereupon the Commons sent to the Bishop for his Answer in writing unto this Complaint which yet the Bishop did forbear to do until he knew the Opinion of the Lords herein and acquainted their Lordships therewith The next day the Lords answered all with one voyce Quod non consentaneum fuit aliquem Procerum alicui in eo loco responsurum Lunae 2. Martii In the Parliament begun at Westminster An. 16. Jac. Sir John Bowser Knight complained of the Bishop of Lincoln the then Lord Keeper but he was not compellable to answer before the Commons 10 R. 2. The Commons accused de la Poole openly in Parliament before the King and Lords unto which the Councellors made a good Answer in the Opinion of this Age yet upon the many Replications of the Commons and the enforcement of his Oath strictly against him he was Fined and Imprisoned c. In this Parliament also the Lords and Commons procured Commission unto certain of the Lords to enquire of the Enormities of the Realm and to redress them The King was so highly displeased with these Proceedings that on the last day of this Parliament being the 25th of November he himself protested that nothing done therein should turn to the Prejudice of him or his Crown Afterwards he sought all means to overthrow those Lords who procured that Commission viz. the Duke of Gloucester the Earls of Danby Arundel Warwick and Earl Marshal And at a Consultation thereupon he sent for the Chief Justice Tressilian and some other Judges and his Serjeants at Law unto Nottingham where on August 25. Anno 11. he propounded certain Questions containing all the points of Advantage against the Proceedings of the last Parliament which the Judges affirmed to be Treason under their Hands and Seals Then the King thought to proceed judicially against those Lords but they kept together with the Duke of Gloucester at Heringby with a strong Guard And the King sent for them and all doubts of danger to their Persons being first removed they came Novemb. 3. Anno 11. and kneeling before the King's Majesty he demanded why they were Assembled at Heringby-Park in warlike manner They answered for the good of the King and Kingdom and to remove certain Traytors from about him meaning the Lord of Ireland the Archbishop of York Michael de la Poole Sir Robert Tresilian and Sir Nich. Brembre And with that they threw down their Gloves and Gages of the Challenging to prove the same Unto which the King replied This shall not be done so but at the next Parliament which shall be the Morrow after Candlemas Day and then all parties shall receive according as they deserve In the mean time he conveys away the parties accused and acquits them by Proclamation then summoned a Parliament at Westminster Crast. Purificat 11 R. 2. Where these few Lords Appellants came well Armed which made the King unwilling to come amongst them yet at last he came Haec ex Ep. fol. 603. On the first Day of this Parliament the Duke of Gloucester one of the said Appellants kneeling before the King shewed That whereas he understood his Majesty was informed that he intended the Deposing of him and Advancing himself to the Crown he was ready to declare his Innocency herein in such sort as the Lords would ordain Whereupon the King answered He held him thereof acquitted On the second Day of this Parliament the said Appellants exhibited their Petition to the King concerning several Articles against divers Lords and Commons whom they appealed of Treason The said Articles being read in presence of the King and Lords in Parliament the said Appellants offering to make Proofs thereof required that the said Appellees might be called to Answer and for default of their Appearance demanded Judgment against them Hereupon
the King and Lords deliberated The Judges of the Common Law and the Sages of the Civil Law were charged by the King to give their best Counsel to the Lords of the Parliament how to proceed in their Appeal rightly Who after long Consultation answered the Lords That the Appeal is in no point made and declared according to the Order of the Common or Civil Law The Lords after long Debate declared by the Assent of the King that the Offences being committed by the Peers the Cause should be determined in Parliament only and that by the Law and Order of Parliament only and adjudged the said Appeal with the Process thereon depending to be good according to the Laws and Course of Parliaments And the Default of Appearance was Recorded and Judgment given c. against those who made their default After which Sir Nicholas Brembre a Commoner was brought Prisoner before the King and the Lords at the request of the said Appellants And the said Articles being read he pleaded Not Guilty which he was ready to defend with his Body Whereupon the Commons of the Parliament said that they had seen and considered all the said Articles which they found to be true and that they likewise as much as in them lay did also accuse the said Appellees which they would have done and it appertained to them to have done had not the aforesaid Appellants pursued the said Appeals Whereupon was answered by the Lords of Parliament That the Battel doth not lie in this Case but that they upon examination of the Articles would proceed to Judgment Here I note That the Lords cannot proceed against a Commoner but upon a Complaint of the Commons But here is not expressed how the Commons came daily to have a sight of these Articles I deny not but after they were read in their presence for their presence is always understood in Judicature upon Life and Death prout postea they demanded a sight of the Articles and considered of them apart and then supplied the Defects thereof And this also is to be observed that the Commons accuse Commoners as the Lords do their own Peers I suppse that Brambre was denied the Battel because the Commons accused him also otherwise he ought to have it granted upon an Appeal Afterwards the Commons themselves accused and impeached divers Commoners prout 2 Mar. Sir Rob. Belknap L. Chief Justice of the Common Pleas Sir John Carey late Chief Baron and other Justices c. The Records were brought into the Parliament at the Demand of the Commons and the Commons accused the Justices for their untrue Answer made unto sundry Questions before the King at Nottingham to the emboldning of the aforesaid Offenders in their traiterous Designs and Attempts c. Unto which they answered c. were adjudged c. And then follows another Impeachment of the Commons thus The Accusements and Impeachments made by the Commons of the Realm against Simon de Burle Sir John Beauchamp Sir John Salisbury and Sir James Berners Knights do ensue underwritten whereof the Commons pray Judgment in this present Parliament Thus much touching the Appeal of 11 R. 2. But this begot another Appeal in the 21th of the said K. R. 2. in the Parliament begun Sept. 14. being the Feast of St. Oswald Edmond Earl of Rutland Tho. Earl of Kent John Earl of Hunt Tho. Earl of Nottingh Joh. Earl of Somerset Jo. Earl of Salisbury the Lord Despencer and William Scroop Chancellor unto our Lord the King in their proper persons delivered unto our Lord the King then sitting in the great Hall within the Castle at Nottingh in his Royal Estate with a Crown on his Head a Bill of Appeal against Tho. Duke of Gloucester Richard Earl of Arundel and Tho. Earl of Warwick The which Bill of Appeal is recited in that Parliament and as it seems per Copiam verborum inde was penned by the Advice of some Civil Lawyer It seems also they were very careful herein to avoid all Errors of the former Appeals For in that of 11 R. 2. they appealed divers Commoners but here the Lords appealed none but Peers then it was done by word of mouth they being called to the King upon some other occasion but now it was done solemnly in writing and was delivered to the King sitting in his Throne of State There they offer'd to prove their Accusation by Battel a thing not meet for the Parliament or in what course his Majesty would ordain it but here the Bill was read in Parliament and they said they have been and are ready to prove c. as you our thrice Redoubted King and this Honourable Court of Parliament should ordain Nor were they less careful in their proceeding to Judgment to avoid the Errors in the former prout in the Answer But these Appeals are now abolished by 1 H. 4. c. 14. and not without cause for as this Accusation was extraordinary so were the Proceedings carried with a strong hand the former by the Lords this by the King prout ex Chroniculis in quinto comparet cum Codice 1 Maij A Brief whereof so much as concerns this Appeal follows hereafter at large with the Precedents of 21 R. 2. Ad quod Parliamentum convenire jussit Rex omnes Dominos sibi adhaerentes cum Sagittariis viris armatis tanquam ad bellum contra hostes omnino progressuri fuissent Ipse vero Rex ut efficacius proficere possit nequam conceptus malefactores de Comit ' Cestr ' congregari fecit ad velandum locum stramine c. Erexerat autem Rex quandam domum amplissimam in Palatio Westmonaster ' quae pene totum Palatii spatium occupavit in qua sibi Thronus parabatur altissimus pro cunctis Regni Statibus locus largus pro Appellantibus in uno latere locus specialiter deputatus in alio latere locus largus pro Responsu assignatus seorsim vero pro Nobilitatibus Parliamenti qui non fuerunt electi per Communitatem Et Forale nuncupatur Parliamentum Thus much of Accusation by Appeal which when any of the Lords accused others out of Parliament was summoned but God be thanked they are abolished 1 H. 4. c. 14. CHAP. III. The Parties Answer THe Party accused is to be brought to his Answer otherwise the whole Judgment will be erroneous as was Mortym 23 E. 3. Numb 10. and Spencer's 15 E. 2. and John Matrevers 21 E. 3. Numb 65. dors Although the Party be absent yet the Parliament hath used all means possible to have his Answer prout 21 R. 2. where the Lords Appellants and the Commons also accused Tho. Mortymer of Treason and the Commons said That it was notoriously known unto them that the King had sent his Mandate by W. D. a Serjeant at Arms unto the said Mortymer in Ireland commanding him upon his Allegiance to come before the King in all haste to answer c. And that the
Precedents mention the King's Assent in Capital Judgments except that one against Matrevers 4 E. 3. which might be the omission of the Clerks who drew up the Roll for it is said directly afterwards in the said Bill Numb 6. That the Peers gave those Judgments in the presence of our Lord the K. and by his Assent And except that of 1 R. 2. against Weston in the last Day of the Parliament and it was 3. in the Afternoon that Day before the Lords had determined what to do in that Business so that it may be the Lords were prevented of time herein to have which they respited Execution for that the King was not informed of the manner thereof Secondly For that the Lords Appellants 11 R. 2. who had then great Forces about them were so earnest with the King for his Assent to the Judgment against Burley That the Duke of Gloucest told him as appeareth by his own Confession 21 R. 2. That if he would be King he should not intreat for Simon de Burley to save him from Death And in the end when his Majesty would not assent to their Judgment yet they wrought so that Messengers were sent unto him and brought word not before they gave Judgment against Simon and the King's Assent is mentioned in the said Judgment All which the said Lords would not have done had not the King's Assent been necessary And afterwards in the Parliament of 21 R. 2 The Lord Cobham being accused for giving Judgment without the King's Assent answered That the Messenger brought word That his Majesty had assented And yet because he did not gainsay that the King did deny his Assent the Commons immediately demanded Judgment All which seem to imply That the King's Assent is necessary in Judgments upon Capital Offences Touching the Second viz. Judgment against the King 's Will. It is all one with Judgment without the King's Assent Touching the Third viz. In the Absence of the King The Judgments of this kind are good notwithstanding so as the King doth assent as that of Simon de Burley 11 R. 2. Touching the Absence of many of the Peers That is to say of many of them and against their will This cannot invalid their Judgment so as the greater number of the Lords be then present accompting the Proxies of the absent Lords for it is not material whether some Lords do absent themselves or disassent The chiefest Matter is the Assent of the Lords who are present either in Person or by Proxy The others are to Answer for their Absence without a just Cause shewn or a proper Assent § 2. In Judgment on Misdemeanors the King's Assent is not required 50 E. 3. The Lords judged divers Commoners for Misdemeanors and the King's Assent not mentioned as Richard Lyons William Lord Latymer a Privy Councellor John Lord Nevil a Privy Councellor Jo. Peecher and others The King was then sick at his Mannor of Eltham and on the last day of the Parliament the Lords Prelates and Commons came before him there and he heard the Petitioners and their Answers for most part read and also Judgment given on the Privy Councellors and others dont ils se leyron franchement le respons de mesme nostre Seignior le Roy Numb 15. Which shews that the King had not assented to them 7 R. 2. The Bishop of Norwich was accused of Misdemeanors and judged in 10 R. 2. The Lord Chancellor Mich. de la Poole was judged by the Lords for Misdemeanors and Speed fol. saith That the King was much displeased thereat for it appeareth he gave not his consent And it was one of the Questions demanded of Tresilian and others 11 R. 2. Whether the Judgment were erroneous or not and resolved to be erroneous yet it was not objected against any the Lords Appellors that the Judges proceeded without the King's Assent §. 3. The King's Presence in Parliament In 4 E. 3. The King commanded the Lords to do right and lawful Judgment on Mortimer The which Earls Barons and Peers having examined the Articles came again before the King and said c. Ibidem The King commanded them to give Judgment on Simon de Bereford The which Earls Barons and Peers came again before the King and said c. And so the King was present at their Judgment but not at their Consultations 10 R. 2. The King was present when the Commons accused the Lord Chaneellor William de la Poole of Misdemeanors but he was not present at his Trial for he demanded if he ought to answer sans presence de dit Roy being Chancellor and in the end he answered notwithstanding 21 R. 2. In the cruel Parliament of the Lords Appellants the King was present at the Parlies Non constat whether he was present at the Consultation of the Lords 5 H. 4. The King was present when the Earl of Northumberland was to be tried upon his own Petition and so were the Commons And the King delivered the Petition to the Judges for their Opinion but the Lords claimed their Right But this was on the Wednesday and the Friday following the King and Commons met there again and the Chancellor rehearseth First What was done the first Day and the Lords having had competent deliberation on the said Petition and having heard and considered the Statute They adjudged c. It is plain the King was not present at this Consultation of the Lords though at their Judgment 7 H. 4. He commanded the Lords to advise what manner of Process shall be made and what Judgment shall be rendred against Henry de Peircy Earl of Northumberland and a Week after the Lords declared their Opinion to the King And it appeareth in that Roll very clearly that all Evidences and Examinations were shewn and taken by the Lords in the absence of the King and their Advice also agreed on in his Absence but the Judgment reversed in his Presence To conclude The King may be present if he please at the Parties Answer in Capital Causes and at the Judgments given prout c. But he was never present at other times of Proceeding against the Delinquent nor at any Answer for Misdemeanors for ought I have yet seen §. 4. The Presence of the Lords Spiritual In Cases of Misdemeanors the Lords Spiritual have ever been present but never in Offences Capital This is so generally-received of all men that it is not worth the Labour to prove it yet I will vouch the Precedents For it may be out of one or other of them somewhat may occur worthy the Observation In Misdemeanors In 1 R. 2. Alice Peirce was brought before the Prelates and Lords in Parliament to Answer and the Prelates and Lords did ordain 42 E. 3. Numb 20 c. John at Lee was put to Reason before the Prelates Lords Dukes Earls Barons and some of the Commons 7 R. 2. Jo. Cavendish accused the Lord Chancellor of Bribery before the Prelates and Lords in