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
Thar seeing by Order of the Lords House May 4. the Earl of Bristols cause should be wholly retained in this House how that might now be done in respect of the Stat. of 35 H. 8. By which it was enacted That all Treasons committed beyond the Seas as this Earls were shall be tryed in the Kings Bench or before Commissioners Assigned by the King And an Order of the upper House cannot avoid the Statute Some were of opinion that the Earl was first to be indicted before Commissioners appointed by the King and that Indictment being returned into the Parliament to be tryed thereon by his Peers and vouched that Precedent of 2 H. 6. Of Sir John Mortimers Indictment returned into the Parliament But then the Cause cannot be wholly retained in the Parliament neither can it be inferred out of the Precedent of Sir John Mortimer that the Parliament can try any of Treason unless he be Indicted elsewhere For then the Parliament should not have so much power as hath the Kings Bench and other inferiour Courts wherein Capital Offences may be both enquired of and determined Neither can Sir John Mortimers Indictment thus returned be a leading Case for Tryal of Peers in Parliament for he was but a Commoner and therefore not to have been judged by the Lords unless they had first accused him and the Commons did so by Informing the Indictment to be true before the Lords gave Judgment upon him But their can be no Precedent shewn that a Peer of Parliament hath been tryed in Parliament on an Indictment taken elsewhere To resolve this Question two things are Considerable First The Statute of 35 H. 8. Whether the meaning thereof were to limit the Tryal of a Peer in the time of the Parliament for Forreign Treasons assigned taken in the Kings Bench or before Commissioners Assigned by the King and not elsewhere But I conceive the Statute hath no such meaning The Preamble saith it was doubted whether such Treasons might by the Common-Law of the Land be enquired into heard and determined within this Realm of England For a plain remedy Order and Declaration herein to be had and made Be it enacted c. So that if such Treasons have not been heretofore enquirable by the Common-Law then this Statute provides a Remedy and Order for the same hereafter But this Statute doth not abridg the Parliament of the power it had to enquire of and determine such Treasons in time of Parliament Whereof there are diverse Precedents viz. 1 R. 2. Weston and Gomeniz 50 E. 3. for William Latimer and John Nevil 7 R. 2. for the Bishop of Norwich ibid. Numb 17. for Cressingham and Shipworth ibid. Numb 24. for Sir William Elsingham Sir Thomas Trevet and Sir Henry de Ferrers all Tryed in Parliament for matters done beyond the Seas The second thing to be considered is The Order it self which I conceive to be of force notwithstanding the Statute of 35 H. 8. for that it is neither directly contrary to the Statute nor repugnant to the Common-Law otherwise the Act of one House alone cannot alter a former Statute made by consent of both Houses And this is to be remembred that the Proceeding against a Peer in Parliament is not necessary But thus it was used to be viz. The Peer accused to be brought before the Lords and Commons and then the Lord Steward to sit in the Chancellors place on the Woolsack and the Articles to be read against him by the Clark of the Crown and upon his Answer the Lords do determine of their Judgment which is afterwards pronounced by the same Lord Steward A Question might be whether the Commons have used to sit with their Speaker at these Tryals If they have then the Court of Requests or some such place may be provided for the purpose And thus that whole Cause might be retained in Parliament notwithstanding the Stat. of 35 H. 8. Thus much touching the Accusation ex parte Dom. Regis exhibited in a formal Accusation by the Kings Atturney The Duke of Clarence was arraigned in Parliament 18 E. 4. upon the like Information but the Precedent is not in the Parliament Rolls Therefore I omit it §. 4. The second kind of Accusation on the Kings behalf is ex mandato Dom. Regis upon the Roll and view of any proceedings elsewhere against the Delinquent or upon his Petition The Precedents thereof are these Anno 5 H. 4. The Earl of Northumberland was Tryed in Parliament ex mandato Dom. Regis upon his own Petition The Accusation and manner was thus The said Earl had raised Forces to have joyned with his Son Hotspur in Rebellion against the King Hotspur was slain in the Battel of Shrewsbury 21 July 4. H. 4. before the said Earl could joyn with him Whereupon he dismissed his Forces and retired to Worksworth Castle The King after the Battel came to York and sent for the said Earl and being come pardoned him for his life but abridged him of his Liberty The next Parliament was summoned the 20 of October to begin at Coventry the 3. of December And the Earl had his writ of Summons This Parliament was prorogued till the 23. of November by new Writs as the manner then was returnable Crastino Hillarii then following But the Earl had no new Summons thither But thither he comes a Petitioner Speed saith he was abridg'd of his liberty but the Record saith he came before the King and Lords And not that he was a Prisoner as Gomeniz and Weston 1 R. 2. Nor that he was caused to be brought as a Delinquent sent for as Alice Peirce 1 R. 2. But that he came before the King Lords and Commons of Parliament And then the Chancellor told him that upon Wednesday last past he had been before the King and Lords and Commons in the same Parliament and besought the King as he had done before at his coming before him at York That the King would do him grace for his misprisions against him in not keeping his Laws and Statutes as by one Petition delivered by him in Parliament written in English The tenor whereof followeth To my most dreadful and Soveraign Leige Lord. I your humble Subject beseech your Highness to have in remembrance my coming into your Gracious Presence at York of your free will by your goodly Letters The which Petition per Commandment du Roy was examined by the Justices to have their Counsel and Advice therein But the Lords by Protestation made claimed the Judgment to belong unto them only in such Cases c. And so the Lords Tryed him and acquited him of Treason and Felony but found him guilty of a Trespass only which the King pardoned Here no Information was exhibited against the said Earl yet the Kings Counsel opened his Offences to the Lords else how could they appear Anno 7 H. 4. The King commanded the Lords Temporal in Parliament to advise what manner of Process should be made
the Tower for three Weeks May it please you c. Here I observe that the Accusation of a private person ought to be legal and certain as that was This Accusation consists of two parts The unjust taking of 17 Nobles c. from the Merchant of Pruse and the Imprisonment of the Petitioner by false suggestion to the King Upon hearing of the Matter the Lords Ordered That as for the Complaint tovching the 17 Nobles it should be sent to the kings-Kings-Bench to be tried there but the Lords themselves determined the Imprisonment upon the false suggestion to the King and awarded Ellis to prison to pay Fine and Ransom to the King and Dammages to the Accusers The Lords received the latter part of this Complaint for two Causes The one for the false Suggestion to the King limited by the Statute of 31 E. 3. to be punished by the Chancellor L. Treasurer and the Councel if he be untrue all which were present in the Parliament The other For a Scruple which might arise out of the Words of the Statute which provides for false Suggestions only to the King himself Whereas Ellis his false Suggestion was by a Letter written to one of the Kings Servants which being shewed to the King his Majesty caused the Petitioner to be imprisoned And this the Lords expounded to be in Ellis a Suggestion unto the King himself And had this Point been truly triable at the Common Law the Lords had referred it thither This is but my own Conceipt Anno 5 R. 2. Numb 4. Richard Clevedon Esquire by his Bill exhibited to the King in Parliament accuseth Sir William Cogan Knight Anno 5 R. 2. Numb 45. The Mayor Bayliffs and Commonalty of Cambridge were accused c. The next of this kind is a very slanderous Accusation of the Chancellor which I will briefly declare and the whole proceedings therein for that it differs in some points from the rest The Parliament of 7 R. 2. at Salisbury began the Friday after the Feast of St. Mark the Evangelist April 29. On the 24th-of May next John Cavendish Fishmonger complained in this Parliament First Before the Commons of England in that Assembly in presence of some Prelates and Temporal Lords and afterwards before all the Prelates and Temporal Lords in full Parliament In the beginning of this Complaint he desired the Lords for God's sake to grant sure and speedy protection for the safety of his Life and that he might have sufficient Surety of the Peace against those of whom he would complain and especially he demanded Surety of Monsieur Michael de la Poole Chancellor of England and accordingly the Chancellor did at the Commandment of the King find Sureties viz. Two Earls c. Then the Fishmonger rehearsed how that all the last Parliament which was held at Westminster at Allhallontide in the same year he did sue by his Bill to have restitution of certain Merchandizes of great value from Geo. Mansfield and three others which was lost upon the Seas by them at such time as they had undertaken the Safeguard of the Seas and of the Merchandizes passing and coming in the mean time against all Enemies except Royal Power The which was endorsed saith he and committed to the Chancery to discuss and determine the Matters therein comprized according to Law and Reason Whereupon he dealt with one John Otrey a Clerk and Houshold-Servant to the said Chancellor for his Master's Favour and Furtherance in the Business The Clerk after he had viewed a Copy of the Bill and considered of the Business promised that for Forty Pounds to his Lord's use and Four Pounds to his own use he should have speed That he gave his Bond for 44 l. to be paid at a Day to come and afterwards delivcred unto the said Otrey certain Herrings and Sturgeon to the value of 9 or 10 Marks to the use of the said Chancellor in part and three yards of Scarlet which cost him 32 s. unto Otrey for his own use in part of the said 4 l. Notwithstanding all which he found no Favour from the Chancellor in his Suit but was delaied and still is and cannot have Justice therefore That the said Otrey told him that he could have had more Money of his Adversaries to have been against him which made him suspect the worst But said he whether the Chancellor shall be reputed privy to this God knoweth judge you My Lords for the Chancellor hath paid him for his Herrings and other Fish and sent him his Bond cancelled but whether he did it out of Conscience or to avoid Slander and Reproach he knew not Judge you My Lords but he was not paid for his three yards of Scarlet Unto this the Chancellor made his Answer not presently but at another time for the Record saith He Answered first before the Prelates and Lords and afterwards before the Lords and Commons whereas the Commons were present when the Complaint was made it being in pleno Parliamento And in the Judges Award to whom this Matter was afterwards referred it is said to be coram Magnatibus Communitat ' in Parliamento So that the Answer was made some other way First He protested his Innocency touching the Delay of Justice and shewed how the Delay was through the Difficulty of the Cause and vouched the Justices and the Serjeants who had often heard the Pleadings Touching the Bribery he swore by the Sacrament he had no knowledge thereof until upon Accompt with his Officers he found those Fishes not paid for and then he presently caused them to be paid for and the Bond cancelled and sent him He denied that his Clerk moved him in that Business all which he offered to prove in such manner as the King and the Lords should ordain and demanded Justice against the Fishmonger for the Slander Unto which the Fishmonger presently answered and said He did not accuse the Chancellor himself but his Clerk only The Lords examined the Fishmonger and the Clerk about the Bond and his Adversaries on their Allegiance whether they had given any thing or promised to give And finding tde Chancellor free from Bribery the Lords acquitted him of his Accusation aforesaid then at the Chancellor's Request the Fishmonger was committed until he found Sureties to appear de die in diem before the Lords and before any Judges who should be assigned The Lords committed the Clerk also and afterwards the Parliament growing to an end the Complaint was referred wholly to the Judges to hear and determine the same as well for the King as for the Parties Auxi avant come les Peres de Parliamento might have done if the Plaint had been fully treated in their presence and in the Parliament The Proceedings before the Judges were in a Schedule annexed to the Parliament-Roll and were thus A Commission was granted in Parliament unto Tressilian Chief Justice of the King's Bench and Bellknap Chief Justice of the Common Pleas to hear and determine
and Judges I have observed four manner of Accusations in Parliament 1. First by the Commons either by their Complaints or their Impeachments 2. Secondly by Information Ex. parte Dom. Regis 3. Thirdly by Complaint of private Persons 4. Fourthly by Appeal of some of the Lords in Parliament which was abolished p. Stat. 1. H. 4. c. 14. The Accusation of the Commons The manner of Accusation ought to be by the Commons alone and not by the Lords and them together for so Earls Prelates Barons and other Peers of the Land and Commons of the Realm did accuse Hugh de le Spencer 15 E. 2. and one of the Errors assigned for the Reversal was that the Lords had no Record before them of the Causes contained in their Award vis Rot. claus 15 E. 3. in the Parliament at York The Reasons may be because the Lords joyning in the Accusation with the Commons have declared their opinion of the Fact and there needs no further Tryal thereof Wherefore the Lords who are only Judges may neither accuse any to themselves nor joyn in the Accusations with others The complaint of the Commons is either by Petition or demand in general or by Impeachment in particular which is their Declaration against the party accused Precedents of their Complaints by Petition are Anno 21 E. 3. n. 38. The Commons complain of Extortion used by certain Merchants who were Farmers of the Kings Customs of Wools not naming the Parties for which they pray remedy and that the said Merchants may be put to their answer in this Parliament for such outrage and distress done to the people Which Petition is thus answered Let the Merchants be called into the Parliament Et oient lour Respons In codem Parl. n. 49. The Commons in another Petition complain That whereas diverse aids have been granted to the King for his Wars certain Merchants by confederacy between them and in manner of usury have bargained for the same to the Kings great loss and the grievance of the Commons c. His people pray these Particulars may be examined in presence of some by the said Commons deputed by good wise and Loyal men during the Parliament The King shall assign some of the Sages of his Council to hear and determine the things contained in this Article And if any of the Commons can inform the King for his profit of any of the Points herein contained let him put it in certain and he shall be heard to the end that Right and reason may be done And the Justices which shall be assigned to enquire of false Mony shall have power to enquire of the excess of such Ministers Though these complaints were general yet they pointed so directly to the Parties accused that John de Worsenham and Walter de Chairton did exhibit their Petitions also in their own defence desiring to come to their Answers What further proceedings were herein is not recorded The Commons were directed to impeach the Parties whom they accused If any of the Commons can inform c. Let him inform in certain and he shall be heard c. So that although the Commons accusation by complaint be general yet if the complaint be received and the Parties brought to answer the Commons may then impeach the said Parties viz. declare against them in special and then the Suit is theirs prout Anno 50 E. 3. against Lyons Ellis the Lord Latimer the Lord Nevile Peecher and others But if the Commons do only accuse by any way of complaint whatsoever and do not declare in special against the Party accused then the Suit is the Kings and the Party is to be arraigned or otherwise proceeded against by commandment Ex parte Dom. Regis prout Gomeniz Weston and Alice Peirce 1 R. 2. Anno 1 H. 4. The Commons pray the Lords Apellants in the 21 R. 2. may be put to their answer and so they were 10 Placit Coron of that Parl. n. 1. 2. 3. c. Anno 29 H. 6. The Commons pray that the Duke of Somerset the Dutchess of Suffolk the Bishop of London and many others may be abandoned from the Kings Presence during their lives and not come within twelve Miles of the Court for that the people spoke evil of them The King of his own meer motion is contented that all shall depart unless they be Lords and a few of them whom he may not spare from his presence and so to continue one year to see if any man can misprove them n. 6. inter Petitiones Communium For this was no Accusation for the Commons did not require they might be banished the Court. Anno 38 H. 6. The Commons among their Petitions accuse the Lord Stanley of sundry Particulars as to be of confederacy with the Duke of York and pray he may be committed to Prison The King will be advised Primo Jac. 26 Maii. The Commons by message accuse the Bishop of London for words spoken of them in the upper House Of the other kind of complaint by way of demand I have seen these two Precedents only Anno 1 R. 2. The Subsidy to be treated upon between the Lords and Commons as the manner then was The Commons delivered to the Lords a Schedule of their demands to be dispatched before Treaty should proceed Amongst which one was That all such who without Cause have lost or given up any Castle Town or Fortress to the dishonour of the King and damage of the People may be put to their Answer before the Lords and Commons in this present Parliament The Complaint herein is general They accuse such as had delivered up Castles c. if it be an Accusation But they name not the Parties yet two Delinquents hereupon who were Imprisoned in the Tower for delivery of Castels c. were put to their Answer viz. Gomeniz and Weston Anno 7 R. 2. The Commons grant a Subsidy according to the Tenor of a Schedule indented delivered in Parliament requiring it may be enrolled in the Parliament Roll verbatim in which Schedule is this Protestation That it is not their meaning to grant the said Subsidy without the Conditions ensuing Inprimis That the Clergy make the like Grant Item That the Bishop of Norwich and others be compelled to answer such Sums as they have received for Service by them undertaken and not performed c. Numb 13. Here the Commons name one of the Parties against whom they complain but they impeach him not and yet he and divers others were censured on that general demand Of the Impeachments of the Commons there be these Precedents Anno 50. E. 3. The Commons having granted the Subsidy they protested their good will and firm purpose to aid the King and said That it seemed to them for truth that if the King had always about him Loyal Subjects good Councellors and faithful Officers he had been rich in Treasure and needed not have charged his Commons with Subsidies
against Henry late Earl of Northumberland and Tho. Bardolph late Lord Baron for certain ill deeds which they had lately committed contrary to their Allegiance At their meeting the Constable of England shewed them the Process made in the Court of Chivalry against Henry de Peircy upon the Articles of Treason committed by him and others of his Covyn In which Articles are named the Arch-Bishop of York Tho. Newberry Earl Marshal the said Earl of Northumberland the said Lord Bardolph and many others and their several Treasons are therein contained The Lords having advised therein and considered the proofs delivered their opinion to the King touching the said Earl of Northumberland and the said Lord Bardolph only and proceeded to Judgment against them Then the King caused to be demanded of the Lords Temporal Peers of the Realm what they would say touching the Act of the said late Arch-Bishop of York and of the said Earl Marshal who lately with a great multitude of people were armed and trained in the field within the Realm of England with Banners displayed c. Unto which demand the said Lords Temporal said That according to the Information to them given by the said Constable It seemeth unto them to be Treason yet notwithstanding the Lords desired that with good deliberation when they next returned to the Parliament they might speak thereof unto our Lord the King as no error might be found in their doings in time to come This was done on that day the Parliament was adjorned Here the Lords had no other Accusation against those two Peers but the Kings commandment upon view of former Process against them in the Court of Chivalry And the Lords declared their opinion touching the Archbishop of York and the Earl Marshal though their Treasons were contained in the same Process also least Error might be found in their doings hereafter But whether they thought their Error to be that the King had not commanded them first to advise thereon touching the said Archbishop and the Earl Marshal as he had done touching the others Let the Reader Judge For my part I think that would have been error Could the Lords proceed upon Process elsewhere unless the King commands them 2 H. 6. The Judgment against John Mortimer is drawn up very briefly by John Hales one of the Justices of the Kings Bench wherein he first shews that the said Sir John Mortimer was Indicted in London sitting the Parliament before the Lord Mayor of London and other Commissioners appointed by the King For that the said Sir John being committed to the Tower for suspition of Treason corrupted his keeper and broke Prison That the said Indictment was returned into Chancery Ex mandato Dom. Regis and by the Chancery brought into the Parliament before the Duke of Gloucester the Kings Protector and the Lords Temporal the King being then an Infant And the Protector being Authorized by Commission to hold the Parliament de Precepto Dom. Regis That the said Sir John Mortymer by Vertue of the Writs was brought before the said Duke and Lords and Commons That the said Commons affirmed the said Indictment to be true and desired Judgment against him as convict of Treason and Felony And lastly That he was thereupon adjudged In this is set down all the essential parts of the Lords proceedings against Mortymer The Ceremonious or formal parts thereof are omitted as who complained of or accused Mortymer to the Parliament The King or the Commons did not for then there needed no Indictment And therefore it must move for the King either before the Indictment or rather upon the Return thereof unto the House For had the Accusation been before the Indictment it had been a shorter way to Arraign him also before the Commissioners in London he being no Member nor Peer of Parliament then to return the Indictment into the Chancery and then be brought into the Parliament Here is also omitted the Conference before hand between the Lords and Commons touching this matter For it is very unlikely that the Lords did suddainly send for the Commons and then abruptly read the Information before them and they as suddainly affirm the same all these are necessarily understood That the Commons affirmed the Indictment e. It appears that the Lords cannot of themselves Judge a Common Person for an Offence for he is no Peer according to that of 4 E. 3. Numb 26. The manner of Accusation by Information Ex parte Dom. Regis is when the Commons as any other private Person accuse any man unto the Lords in general but do not declare the Offences in particular other then by the Commandment of the King Articles are drawn up against the Delinquent Ex parte Dom. Regis The Precedents are these 2 R. 2. The Constable of the Tower was commanded to bring Gomeniz and Weston whose Offences were complained of in general by the Commons that they named before the Lords in Parliament to Answer to the Articles objected against them on the behalf of the King and they were severally arrained at the Commandment of the Lords c. Eodem anno Alice Pierce being complained of by the Commons was accused and commanded to come before the Lords in Parliament to Answer to certain things objected against her on the Kings behalf And here upon Sir Richard le Scroope Chief Steward of the Kings House by Comandment of the Lords rehersed in Parliment in the presence of the said Alice a certain Ordinance c. Made in the Parliament of 50 E. 3. against her And this Rehersal being made the said Steward surmised unto the said Alice That it seemed to the Lords of the Parliament that she had incurred the pain comprised in the said Ordinance in certain points and especially in two That is to say c. By these two Precedents it appears plain enough that the Lords commanded the Articles to be drawn and exhibited though ex parte Dom. Regis for all these are said to be done by their Commandment And the practise at this day is that out of the Complaints of the Commons as of Mompesson The Lord Chancellor and the Lord Tresurer and a Committee of the Lords did draw up the Charges But they wanted the words Ex parte Dom. Regis The reason why in this Cause the Articles are Ex parte Dom. Regis seemed to be this The Commons complain but impeach not Notwithstanding the Impeachment the Lords cannot proceed neither can they Impeach any to themselves So it rests that the party is to be Impeached at the Kings Suit It may be lawful for me to examine the proceedings of the Lords in the Complaint against Mompesson and to compare them with ancient Proceedings in like Cases And they will appear to differ much And touching Mompesson the Commons did not only complain but accuse him He fled in his absence they ought to have proceeded to Judgment against him before Proclamation first made for him to appear before the
They met at Westminster June 19. and were assisted by the Lord Treasurer Lord Keeper Lord Privy Seal the Master of the Rolls and the King 's two Serjeants c. and they called the Fishmonger before them and cause to be recited the said Accusation and the Chancellor's Answer and then demanded of him what he could say why he should not undergo the Penalty of the Statute against such Scandals especially whenas the Chancellor hath acquitted himself in Parliament and is yet ready to acquit himself by any way possible The Fishmonger denied that he slandered the Chacellor but the Clerk only c. The Commissioners considering the Accusation and Answer in Parliament and especially that the Fishmonger said he could not have Justice in his Cause before the Chancellor the contrary whereof was expressed and proved out of the Records of the Chancery They adjudged him guilty of Defamation and to pay one hundred Marks to the Chancellor and to be imprisoned until he could pay the same and a competent Fine due to the King It should seem the Lords could find no time to examine the Injustice he complained of and therefore referred it to the Judges Anno 6. R. 2. Octab. Mich. Numb 59. Divers Bills were exhibited this Parliament by the Mayor Aldermen and Citizens of London concerning the Fishmongers and the said Mayor and Aldermen and Fishmongers were present at the reading thereof where Nicholas Exton who spake for the Fishmongers prayed the King to receive him and his Company into his Majesties protection Numb 59. which was granted Numb 60. Then one Walter Sybil a Fishmonger craved Audience and said These Bills were not exhibited for any good zeal to the Commonweal but for meer Malice to the Fishmongers for that the chief Exhibiters of these Bills being commanded to prison for sundry Misdemeanors in the time of E. 3. were then imprisoned by certain of the Fishmongers who then were chief Officers in London for which cause Malice was born at that time Numb 60. To that one John Moore a Mercer answered The Citizens of London went to keep the Peace towards them unless they went about to let into the said City the Rebels of Kent and Essex as the said Walter and others did Numb 60. The said Walter Sybill took advantage of those words and desired the Lords to bear witness John Moore thereupon expounded his words saying as the Report then went and prayed the Lords that the Truth thereof might be further enquired of in the City There is one only Precedent of a Complaint made by a private person in the House of Commons and of the Commons proceeding therein against a Lord of the Parliament which was thus Anno 15. H. 6. Tho. Philips exhibited unto the Commons his Bill of Complaint against John Bishop of London for his long Imprisonment upon suspition of Heresie The Commons sent up the Bill being written in Paper amongst other to the Lords without any Message for ought appeareth upon Record On Monday following the Bill was read and the Lords Excogitabant That it did not belong to their House de talibus frivolis rebus consultare and returned it to the Commons Hereupon the Commons sent to the Bishop for his Answer in writing unto this Complaint which yet the Bishop did forbear to do until he knew the Opinion of the Lords herein and acquainted their Lordships therewith The next day the Lords answered all with one voyce Quod non consentaneum fuit aliquem Procerum alicui in eo loco responsurum Lunae 2. Martii In the Parliament begun at Westminster An. 16. Jac. Sir John Bowser Knight complained of the Bishop of Lincoln the then Lord Keeper but he was not compellable to answer before the Commons 10 R. 2. The Commons accused de la Poole openly in Parliament before the King and Lords unto which the Councellors made a good Answer in the Opinion of this Age yet upon the many Replications of the Commons and the enforcement of his Oath strictly against him he was Fined and Imprisoned c. In this Parliament also the Lords and Commons procured Commission unto certain of the Lords to enquire of the Enormities of the Realm and to redress them The King was so highly displeased with these Proceedings that on the last day of this Parliament being the 25th of November he himself protested that nothing done therein should turn to the Prejudice of him or his Crown Afterwards he sought all means to overthrow those Lords who procured that Commission viz. the Duke of Gloucester the Earls of Danby Arundel Warwick and Earl Marshal And at a Consultation thereupon he sent for the Chief Justice Tressilian and some other Judges and his Serjeants at Law unto Nottingham where on August 25. Anno 11. he propounded certain Questions containing all the points of Advantage against the Proceedings of the last Parliament which the Judges affirmed to be Treason under their Hands and Seals Then the King thought to proceed judicially against those Lords but they kept together with the Duke of Gloucester at Heringby with a strong Guard And the King sent for them and all doubts of danger to their Persons being first removed they came Novemb. 3. Anno 11. and kneeling before the King's Majesty he demanded why they were Assembled at Heringby-Park in warlike manner They answered for the good of the King and Kingdom and to remove certain Traytors from about him meaning the Lord of Ireland the Archbishop of York Michael de la Poole Sir Robert Tresilian and Sir Nich. Brembre And with that they threw down their Gloves and Gages of the Challenging to prove the same Unto which the King replied This shall not be done so but at the next Parliament which shall be the Morrow after Candlemas Day and then all parties shall receive according as they deserve In the mean time he conveys away the parties accused and acquits them by Proclamation then summoned a Parliament at Westminster Crast. Purificat 11 R. 2. Where these few Lords Appellants came well Armed which made the King unwilling to come amongst them yet at last he came Haec ex Ep. fol. 603. On the first Day of this Parliament the Duke of Gloucester one of the said Appellants kneeling before the King shewed That whereas he understood his Majesty was informed that he intended the Deposing of him and Advancing himself to the Crown he was ready to declare his Innocency herein in such sort as the Lords would ordain Whereupon the King answered He held him thereof acquitted On the second Day of this Parliament the said Appellants exhibited their Petition to the King concerning several Articles against divers Lords and Commons whom they appealed of Treason The said Articles being read in presence of the King and Lords in Parliament the said Appellants offering to make Proofs thereof required that the said Appellees might be called to Answer and for default of their Appearance demanded Judgment against them Hereupon
the King and Lords deliberated The Judges of the Common Law and the Sages of the Civil Law were charged by the King to give their best Counsel to the Lords of the Parliament how to proceed in their Appeal rightly Who after long Consultation answered the Lords That the Appeal is in no point made and declared according to the Order of the Common or Civil Law The Lords after long Debate declared by the Assent of the King that the Offences being committed by the Peers the Cause should be determined in Parliament only and that by the Law and Order of Parliament only and adjudged the said Appeal with the Process thereon depending to be good according to the Laws and Course of Parliaments And the Default of Appearance was Recorded and Judgment given c. against those who made their default After which Sir Nicholas Brembre a Commoner was brought Prisoner before the King and the Lords at the request of the said Appellants And the said Articles being read he pleaded Not Guilty which he was ready to defend with his Body Whereupon the Commons of the Parliament said that they had seen and considered all the said Articles which they found to be true and that they likewise as much as in them lay did also accuse the said Appellees which they would have done and it appertained to them to have done had not the aforesaid Appellants pursued the said Appeals Whereupon was answered by the Lords of Parliament That the Battel doth not lie in this Case but that they upon examination of the Articles would proceed to Judgment Here I note That the Lords cannot proceed against a Commoner but upon a Complaint of the Commons But here is not expressed how the Commons came daily to have a sight of these Articles I deny not but after they were read in their presence for their presence is always understood in Judicature upon Life and Death prout postea they demanded a sight of the Articles and considered of them apart and then supplied the Defects thereof And this also is to be observed that the Commons accuse Commoners as the Lords do their own Peers I suppse that Brambre was denied the Battel because the Commons accused him also otherwise he ought to have it granted upon an Appeal Afterwards the Commons themselves accused and impeached divers Commoners prout 2 Mar. Sir Rob. Belknap L. Chief Justice of the Common Pleas Sir John Carey late Chief Baron and other Justices c. The Records were brought into the Parliament at the Demand of the Commons and the Commons accused the Justices for their untrue Answer made unto sundry Questions before the King at Nottingham to the emboldning of the aforesaid Offenders in their traiterous Designs and Attempts c. Unto which they answered c. were adjudged c. And then follows another Impeachment of the Commons thus The Accusements and Impeachments made by the Commons of the Realm against Simon de Burle Sir John Beauchamp Sir John Salisbury and Sir James Berners Knights do ensue underwritten whereof the Commons pray Judgment in this present Parliament Thus much touching the Appeal of 11 R. 2. But this begot another Appeal in the 21th of the said K. R. 2. in the Parliament begun Sept. 14. being the Feast of St. Oswald Edmond Earl of Rutland Tho. Earl of Kent John Earl of Hunt Tho. Earl of Nottingh Joh. Earl of Somerset Jo. Earl of Salisbury the Lord Despencer and William Scroop Chancellor unto our Lord the King in their proper persons delivered unto our Lord the King then sitting in the great Hall within the Castle at Nottingh in his Royal Estate with a Crown on his Head a Bill of Appeal against Tho. Duke of Gloucester Richard Earl of Arundel and Tho. Earl of Warwick The which Bill of Appeal is recited in that Parliament and as it seems per Copiam verborum inde was penned by the Advice of some Civil Lawyer It seems also they were very careful herein to avoid all Errors of the former Appeals For in that of 11 R. 2. they appealed divers Commoners but here the Lords appealed none but Peers then it was done by word of mouth they being called to the King upon some other occasion but now it was done solemnly in writing and was delivered to the King sitting in his Throne of State There they offer'd to prove their Accusation by Battel a thing not meet for the Parliament or in what course his Majesty would ordain it but here the Bill was read in Parliament and they said they have been and are ready to prove c. as you our thrice Redoubted King and this Honourable Court of Parliament should ordain Nor were they less careful in their proceeding to Judgment to avoid the Errors in the former prout in the Answer But these Appeals are now abolished by 1 H. 4. c. 14. and not without cause for as this Accusation was extraordinary so were the Proceedings carried with a strong hand the former by the Lords this by the King prout ex Chroniculis in quinto comparet cum Codice 1 Maij A Brief whereof so much as concerns this Appeal follows hereafter at large with the Precedents of 21 R. 2. Ad quod Parliamentum convenire jussit Rex omnes Dominos sibi adhaerentes cum Sagittariis viris armatis tanquam ad bellum contra hostes omnino progressuri fuissent Ipse vero Rex ut efficacius proficere possit nequam conceptus malefactores de Comit ' Cestr ' congregari fecit ad velandum locum stramine c. Erexerat autem Rex quandam domum amplissimam in Palatio Westmonaster ' quae pene totum Palatii spatium occupavit in qua sibi Thronus parabatur altissimus pro cunctis Regni Statibus locus largus pro Appellantibus in uno latere locus specialiter deputatus in alio latere locus largus pro Responsu assignatus seorsim vero pro Nobilitatibus Parliamenti qui non fuerunt electi per Communitatem Et Forale nuncupatur Parliamentum Thus much of Accusation by Appeal which when any of the Lords accused others out of Parliament was summoned but God be thanked they are abolished 1 H. 4. c. 14. CHAP. III. The Parties Answer THe Party accused is to be brought to his Answer otherwise the whole Judgment will be erroneous as was Mortym 23 E. 3. Numb 10. and Spencer's 15 E. 2. and John Matrevers 21 E. 3. Numb 65. dors Although the Party be absent yet the Parliament hath used all means possible to have his Answer prout 21 R. 2. where the Lords Appellants and the Commons also accused Tho. Mortymer of Treason and the Commons said That it was notoriously known unto them that the King had sent his Mandate by W. D. a Serjeant at Arms unto the said Mortymer in Ireland commanding him upon his Allegiance to come before the King in all haste to answer c. And that the
said Mortymer having notice thereof withdrew himself among the wild Irish where the same Serjeant nor any other Officer of the King 's durst come for fear of Death Wherefore and for that his Offences are notoriously known both to the Lords and them they prayed Judgment c. The King the Lords and the Procurators of the Clergy considered of the Request of the Commons with good deliberation and then the Lords with the said Procurators by the assent of the King and Commons did award that Proclamation should be made through England and Ireland commanding the said Tho. Mortymer to render himself in proper Person to the King in what place soever it shall be in England within three Months after the 23th Day of December next coming to be at his Answer and they farther awarded That if he came not c. that then he shall be judged Traytor and Convict of of all Treasons whereof he is accused and shall forfeit c. Then the King adjourned the Parliament and the Appellants to the 15th of Hilary next at Shrewsbury on which Day the said Appellants declared to the King That it was awarded that Proclamation should be made c. ut supra The Commons did the like And for that the said Tho. Mortymer came not they had judgment In 7 H. 4. The Lords agreed this Judgment against the E. of North. and the Lord Bardolph who were fled to the Rebels in Wales and Proclamation ut supra throughout England At the day prefixed they examined the Returns of the Proclamations in the presence of the Commons and so the Judgment was agreed on in their presence also and so it ought to be in all Cases of Life and Death And finding a small Error they awarded new Proclamations in London only and the Return thereof was again viewed and considered in the presence of the Commons and then on the next day Judgment was given Eodem Anno 21 R. 2. The Lords Appellants accused also the Duke of Gloucester of Treason and although they knew he was dead they prayed the King that he might be brought to his Answer Whereupon the King sent his Writ to the Council of Calice unto whose Custody he committed the said Duke to bring him into the Parliament to his Answer The Captain returned his Writ That the Duke is dead the which Writ and Return being read the said Appellants prayed Judgment and the Commons shewed That the Dukes Levying War against the King's Person is notoriously known to all the States of Parliament and therefore they desired Judgment also and had it And what may not the whole Parliament do when they joyn in one Yet notwithstanding the King fearing some Error as it seems the Lords Appellants besought the King that if there were any thing on Record be it by Confession or otherwise which concerned their Appeal that it might be openly known and shewn in full Parliament Whereupon by the King's Commandment was read a Commission granted unto William Richal Justice of the Common-Pleas and a Confession of the Duke of Gloucester made before him by vertue of the said Commission yea and Richal himself being commanded did justifie that the Duke did write the Confession with his own hand in his absence and afterwards read it unto him so careful they were to have something to supply an Answer I marvel that Richal was acquitted of his Proceedings herein at the next Parliament of 1 H. 4. where he affirmed that much of this Dukes Confession was altered after he had returned his Commission He well deserved to die in that he spake not of it Yet there is one Precedent directly contrary to all this viz. 11 R. 2. in that Appeal which happened on this occasion The aforenamed Duke of Gloucester and four other Lords went to the King and accused the Duke of Ireland the Archbishop of York Michael de la Poole and others of Treason the King adjourned them to the next Parliament promising them Justice there and in the mean time conveyed away the Parties accused and then by Proclamation Part 8. fol. 603. in the next Parliament 11 R. 2. the Articles of the Appeal being read the Duke and other Appellants offered to make proof thereof and required that the Parties appealed might be brought to their Answers and for default of Appearance demanded Judgment Whereupon the King did deliberate with the Lords and commanded the Justices and other Sages of the Law to give their best Counsel to the Lords how to proceed rightly in this Matter of Appeal who after Consultation therein had answered the Lords That they had seen and considered the Tenor of this Appeal which they said was in no point made and declared according to the Order of the Common or Civil Law But they gave no Answer touching the Demand of Judgment for default of Appearance whereupon the Lords deliberated and after by the Lords assent declared that this Cause committed by the Peers against the Person of the King and State of the Realm shall be determined in the Parliament only and by no other Law than by the Law and Course of the Parliament And that it belongs to the Lords only to judge in such Cases And with the assent of the King they did judge the same Appeal and the Process thereupon depending to be good according to the Law and Course of Parliament Then the Lords Appellants proceeded and desired to have the fault of Appearance recorded and Judgment given and so it was So likewise 21 R. 2. After the King had given the full power of Parliament to determine all Matters begun into the Hands of twelve Lords or six and six Commoners or any three He adjourned the Parliament from Westminster to Shrewsbury in 15 Hil. and there on March 22. It was shewed to the King how that Robert Possington was impeached at the Parliament at Westminster for being with the Duke of Gloucester in levy at Herring An. 11 R. 2. For which the said Duke was adjudged as Traytor and therefore they brought the King to ordain the like Judgment against Robert Possington though he was dead Whereupon our Lord the King by the assent of the Lords and Knights of Counties having power c. awarded the said Robert guilty c. And that he shall forfeit c. But these extraordinary Precedents cannot lead us into the ordinary course of Proceedings and I alledge them only so as their Errors may be avoided § To conclude it is the just and constant Course of Parliament to bring the Party accused to his Answer yea though he fly Justice yet to send out Proclamations into the Countries that he appear at a Day or else such and such Judgments shall be given against him I confess this Course was omitted in the Judgment against Mompesson 18 Jac. and haply it was not then thought upon the Judicature of Parliament being so long out of use and therefore that cannot be alledged as a leading Precedent And in
that Judgment 21 H. 6. against Sir Jo. Mortymer upon an Indictment of Escape out of Prison being committed upon suspition of Treason the said Mortymer's Answer is not recorded yet it is said he was brought before the Lords and the said Indictment read in his presence that he made an Answer unto it though not mentioned And this proves that the Party is to be brought to his Answer else Mortymer's presence had not been necessary Anno 7 R. 2. Numb 2. The Duke of Lancaster and Gloucester complained to the King That Sir Tho. Talbot with others conspired the Death of the said two Dukes and prayed the Parliament to judge thereof The Fact is judged High Treason and Writs sent to divers Sheriffs to apprehend him which Writs were retornable into the King's-Bench And upon Proclamation made in Westminster-Hall That upon the Sheriffs Return and the not-Appearance of the said Thomas he should be convicted of Treason and forfeit c. This was extraordinary in terrorem But what may not the whole Parliament do They may alter Law much easier than Form In the Answer is to be considered First In what Causes the Party is to answer as a Prisoner and in what as a Freeman Secondly When Councel shall be allowed him and when not Touching the First The Parliament hath guided their Proccedings therein secundum Legem terrae Judicium Parium According to the 2th Chapter of Magna Charta Nullus liber homo capietur vel imprisonetur c. nisi per legale judicium Parium suorum vel per legem Terrae And therefore in Causes Capital whether the Party accused be a Lord of the Parliament or a Commoner he is brought a Prisoner to his Answer secundum legem terrae prout 4 E. 3. Numb 1. c. The Lord Berkley accused by the King for Murder of E. 2. Anno 1 R. 1. Jo. Lo. Gomeniz and W. Weston Upon the Demand of the Commons for surrendring Forts beyond the Seas An. 4. R. 2. Sir Ra. Ferrers Knight was apprehended for suspition of Treason Anno 28 H. 6. Although the Lords refused to commit the Duke of Suffolk upon the Commons complaint of him of a common Fame of Treason yet when they accused him of particular Treason he was Committed and brought Prisoner to his Answer But in Cases of Misdemeanors it is otherwise then the Party accused whether Lord or Commoner answers as a Freeman The Lord within his Place the Commoner at the Bar and they are not committed till Judgment unless upon the Answer of a Commoner the Lords find cause to commit him till he find Sureties to attend c. lest he should fly prout Jo. Cavendish upon the Lord Chancellor's Demand of Justice against him for his false Accusation was Committed after his Answer until he put in Bail Anno 7 R. 2. And before Judgment And so Michael de la Poole the said Chancellor 10 R. 2. after his Answer and many Replies of the Commons was Committed and presently Bayled Anno 50 E. 3. William Lord Latymer and John Lord Nevill being impeached by the Commons answered in their Place so did the Bishop of Norwich and the Lord Chancellor 7 R. 2. And the said Lord Chancellor too 10 R. 2. answered in his Place though afterwards he was committed before Judgment upon Request of the Commons The Bishop of Bristol 1 Jac. and the Duke of Buck. 1 Car. 1. All these answered as Freemen in their Places their Offences not being Capital And the like Precedents there are of Commoners Anno 50 E. 3. Richard Lyons William Ellis and John Beecher did answer as Freemen being impeached by the Commons And whereas the Commons did that year also accuse Adam de Bury who was absent the Lords sent for him to come but he contemned their Authority and came not Then the Lords as it seemeth by the Record sent to apprehend him and he could not be found wherefore they awarded that all his Goods should be put in Arrest Ibid. N. 17. It is briefly entred Adam was sent unto to come and answer in Parliament he came not nor could be found Wherefore it was awarded c. Which is sufficient to prove A Commoner is not to be brought a Prisoner to his Answer for a Misdemeanor if he will appear 5 R. 2. The Mayor and Bayliffs by name and the Townsmen of Cambridge were complained of in Parliament for many Outrages against the Scholars there and the Lords sent one Writ to the Mayor and Bayliffs that then were and to the Commonalty to appear and answer and another Writ to the Mayor and Bayliffs that did the Outrage and they appeared in person and the Commonalty by their Attorney This was the Ancient Course Yet even in these Days viz. 15 R. 2. the Peer of Holland complained of a great Riot committed by Henry Tibb and divers others in the Parsonage-House of one Williams Whereupon a Sergeant at Arms by vertue of a Commission to him made brought up the said Tibb and one more only the principal doers therein before the Lords in Parliament who upon the Return of the Examination confessed nhe whole Matter and were committed But I suppose the Sergeant at Arms was sent for haply they would have obeyed no Writ and yet he was sent for two of the principal Offenders only At this Day if the Commons accuse a Commoner of Misdemeanors in such a state of Liberty or restraint as he is in when the Commons complain of him in such he is to answer prout 18 Jac. Sir Francis Michell and Sir John Bennet were both committed by the Commons before their complaint to the Lords and so they answered as Prisoners But that in a sort may be called Judicium Parium suorum 18 Jac. The Earl of Middlesex being then Lord Treasurer and accused of Misdemeanors only absented himself from the House His Charge was sent to him in writing and he answered in writing At the Day prefixed for his Trial he was summoned by the great Usher to appear He came without his Staff and kneeled until the Lord Keeper willed him to stand up There he protested That he ought not to answer in that Place and desired others might not be prejudiced thereby And I hope they will not The Earl did himself the first wrong by absenting himself from the House for he might have stayed there until Judgment unless when his own Cause came in agitation §. 2. Touching Councel In all Causes of Felony Treason c. Councel antiently was denied to the Party accused prout Anno 4. R. 2. Numb 21. Sir Ralph Ferrers was brought to the Parliament under the Guard of the Marshal of England and arraigned at the King's behalf for suspition of Treason who prayed to the King and to the Lords to have Councel in that Case Unto whom it was said That in all Matters wherein Councel ought to be granted by the Law of the Land the King or Lords would allow it And it was further
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
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
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