Chanceler e ceux Ke tuchent Justices v ley veynent a Justices e ceux Ke tuchent Juerie veynent a Justices de le Juerie Et si les besoings seent si grans v si de graces Ke le Chanceler e ces autres ne le pussent fere sans le Rey dunk Ils les porterunt par lur meins de meine devant le Roy pur saver ent sa volentè Ensique nulle Peticion ne veigne devant le Roy e son Conseil fo rs par les majns des avaunt ditz Chanceler e les autres Chef Ministres Ensike le Rey e sun Consail pussent Sanz charge de autre busoignes entendre a grosses busoignes de sun Reaume e de ses Foreines Terres Thus in English In regard the People who come to the Kings Parliament are oft delayed and disturbed to the great grievance of themselves and of the Court by the multitude of Petitions exhibited before the King of which most could be dispatched by the Chancellor and Justices It is provided That all Petitions that concerne the Seal shall come first to the Chancellor and those that concerne the Exchequer to the Exchequer and those that concerne the Justices or the Law shall come to the Justices and those that concerne the Jewes to the Justices appointed for the Jewes And if the businesses be so great or so of Grace as the Chancellor and the rest can not end them without the King then they shall with their own hands bring them before the King to know his pleasure therein So as no Petition shall come to the King and his Counsel but brought by the Chancellor and those Chiefe Ministers that so the King and his Counsel may without the trouble of other busines attend the great businesses of his Kingdome and of his forrein Dominions This is the Order in which two reasons are expressed for their not receiving particular Petitions one in the beginning the other in the end First the ease of the Petitioners and of the House it self which for their multitudes could not give every one his dispatch and secondly that freed of them it might attend the Publick business of the Kingdome Not for want of Jurisdiction And yet be all manner of businesses so put by No! Great ones and such as need grace and favor are still reserved But take it at the strongest admit they had put all out of their own power yet it will be granted they had power till they did in this manner divest themselves of it It appears they had by the Order it self which mentions such multitudes of Petitions I then aske if such resolution of the House at that time could be binding to perpetuity The Houses of Parliament we know are masters of their own Orders and themselves when they please alter the Orders they have made much less then be they binding to succeeding Parliaments And it is obvious to every man who will either look into the Records of Ancient Parliaments or will but recollect his Memory and call to mind what hath passed in our late Parliaments that in all times the House of Peers hath acted contrary to this Order Taking Cognizanceeven of smaller matters which the ordinary Courts of Justice do every day dispatch And no House of Peers did ever do it less then this which in truth hath not done it at all though it be now so quarrelled with for having relieved one poor man from the oppression of the mighty when no inferior Court could do it And this too the only Cause of this Nature that they have medled with during this whole Parliament which hath lasted so many years and hath had so many Sessions And a Cause particularly recommended unto them by the King who is the Fountaine of all Justice not one taken up by themselves which makes not their Case the worse as it may well be hoped But suppose there had been no Reservation at all in that Order of 8 E. 1. of any Cause or any business but that the King and Lords had at that time bound up themselves absolutely from medling with any of those Petitioners Cases and for the Present waved the exercise of their Jurisdiction in all such matters had this been a Renouncing of their Jurisdiction and quitting it for ever No Court but may upon some particular occasion suspende and wave it's Jurisdiction it doth not therefore follow that it must never make use of it again The Court of Chancery doth sometimes appoint a Tryall at Law of points in a Cause which it might have determined it self if it had pleased And at an other time it will determine things of the same nature The House of Peers may do the same and wave their Jurisdiction when they please It did it 13 R. 2. N. 10. in Changeours Case Adam Changeour So is his Name in the Record though the Exact Abridgement call him John petitions the King and Lords against Sir Robert Knolls Setts forth how owing 2000 l to Sir Robert and his Wife Constance he had let him have Lands to receive the Rent till he was Satisfied his debt That Sir Robert had received more then his money due yet kept the Land so prayes remedy The Answer is indorsed upon the Petition Let a Writ be directed to Sir Robert Knolls to appear in Parliament the Friday after Candlemas next to Answer the things contained in the Petition Upon hearing the business the Lords leave it to be tryed at the Common Law This seemes a stronger President for trying all at Law and not in Parliament then any which the Gentlemen of the House of Commons urged at the Conference For here was an absolute dismission of the Cause and not ad praesens only as was in their Presidents But I believe such wise and knowing men could not but see that this President would not so much have helpt one way as done prejudice to their Case an other way The Prejudice it would have done had been this that themselves by their own shewing had overthrown one of their maine Arguments which was That all Proceedings in cases of Freehold should be by the Kings Writ and that no Writ was ever made Returnble Coram Dominis Spiritualibus et Temporalibus Whereas here had been in their own President mention of a Writ returnable in Parliament which is Tantamount and signifies the same thing But I have in this Discourse given Examples of several others in the same kind where Writs are issued by Order of Parliament returnable in Parliament and many more there are if it were necessary and worth the trouble to set them down And then what had they gotten by telling us That the Lords once would not retaine a Cause which was tryable at Law and would for once wave their Jurisdiction in such Matters When it was shewed to them by multitudes of Presidents That the Lords had most frequently done otherwise at other times in Cases of the same Nature And Presidents in the Affirmative are those that prove
3. N. 96. It is there specified How in the Parliament before one Hugh Staffolk had been accused of divers Extortions and that a Commission was then granted to the Earl of Suffolk and Sir John Cavendish to inquire into it who so had done and had found him guiltless by 18 Enquests which Sir John Cavendish did in that present Parliament witness to be true By all this it appears that the Authority of the House of Peers ends not with the Parliament but their Judgements still continue in full force and power And they may appoint Persons to see them executed if they please And whereas the House of Commons doth not deny them a power of Judicature upon Writs of Error and upon Appeales Will not the same objection lye as well against their Judgements in those Cases For seldome that they be put in execution before the Parliament rise so it takes away their whole Judicature as in truth all the other objections would do could they be made good And whereas it was said That none of the Kings Courts can give remedy where the Kings Writ can not run And where his Majesties Soveraignty doth not come the Jurisdiction of the Peers can have no place It was Answered that there Chiefly the Power of the House of Peers is to give remedy because it only can As for Treasons till the Statutes of 26 H. 8. C. 13.32 H. 8. C. 2. and 5 E. 6. C. 11. which have made them tryable within the Realm and all Misdemeanors committed in Forrein parts which never were nor yet are tryable at the Common Law Of this there are multitudes of Presidents Gomeniz Weston Segrave Hall Richill c. And here within the Kingdome the the Kings Writ doth not originally run in all places as for example in the Counties Palatine yet no man will deny the Authotity of the Lords in Parliament taking place there 9 R. 2. N. 13. The Duke of Lancaster Complaines of Sir John Stanley for not suing out his Livery for the Mannor of Latham in the Dukes Court of Chancery and yet entring upon it They declare his Entry unlawful and Order him to sue out his livery in the Dukes Court. The Kings Writ did not run there but the Authority of the Lords did Another Objection was That all Proceedings ought to be in Latin and nâ— Record to be in English But the Lords had thought That none had ever yet doubted but the House of Peers had been a Court of Record where all the Proceedings Orders Judgements have been in English ever since H. 6â—… time All Acts of Parliament in English All impeachments even those brought up by the House of Commons the Proceedings and the Sentence all in English The Ancient Records were in French and the Pleadings likewise till the Statute of 36 E. 3. Which appoints Pleadings to be in English and to be entred and enrolled in Latin so the Print saith but in Sir Robert Cottons Abridgement of the Records it is observed that the Record it self warrants no such thing Then the Chancery Proceedings are all in English The Pleadings Orders and Decrees Yet it will not be denied but that is a Court of Record Sir Edward Coke who alone is of an other Opinion concerning the Chancery and upon that ground because the Proceeding is in English yet makes the House of Commons it self a Court of Record where every body knowes all is in English Jnst 4. part p. 23. so he doth not sibi constare The last Objection and indeed the the Chief one if true was That it deprives the Subject of the benefit of Magna Charta which will have all men to be tryed by their Peers or by the Law of the Land And the 25 of Ed. 3. C. 4. that none shall be apprehended upon Petition to the King or Counsel and Counsel here they interpreted to be the House of Lords but upon inditement or presentment or by Writ Original And the 42. of E. 3. which is to the same purpose It was urged further that no Writ was ever made returnable Coram Dominis Spiritualibus et Temporalibus And it was said in Regard of the Island being in a Forrein Princes Jurisdiction that it ought to have been done by Act of Parliament for that no Court of his Majestie can give remedy where his Majesties Writ can not run nor can the Jurisdiction of the House of Peers have place there An other observation they had upon Lex Terrae in Magna Charta That in the Arguments of the Kings learned Counsel 3. Car. They made Lex Terrae to be the pleasure of the King And the Lords were desired to consider upon this if by arguing that the Proceedings of their House were maintained to be Secundum Legem Terrae it may not as well be said that Magna Charta will have men to be tryed Per Judicium Parium aut per Legem Terrae That is by the will of the Lords This is the substance of what was most materially urged against the Lords at that Conference Some other things were said rather to entertain the By-standers then for any thing else as the question asked How the Lords should see further beyond sea then other men Indeed the Lords thought they might see as farr as other men and as farr as the Court of Chancery or any other Court but never undertook to see further But they think if some may have their wills they may be laid so low that they shall then see but a very little way but that is not yet And another pretty Dilemma was made which was this Are the Lords bound to recieve all Petitions or not if bound they may refuse none for Magna Charta saith Nulli negabimus and the King is Debitor Justitiae to all his subjects If they be not bound then they must be partial to receive some and dismiss others But this Argumentum bicorne hurts with neither horne For the Lords in these very Presidents brought by the House of Commons in Ed. 1. Ed. 2. time did not deny Justice when they sent the Petitioners unto those several Courts where they should receive it one to the Chancery an other to the Common Law and directed one to bring such an Action another a differing one according to their several Cases And in those multitudes of Presidents brought by the Lords where Causes have been retained and determined in that House they can not justly be charged with Partiality when they are moved thereunto by some thing extraordinary in those Cases which requires their Relief and that it can not be had else where And a Question may be put on the other side whither it can be believed that Partiality was imputed to all the Parliaments heretofore which at their first sitting appointed Committees Tryers of Petitions for England for Ireland for Gascony nay for Flanders where the King had no Dominion and sometimes in general for all places beyond the Seas to examine which were fit to be received
and it pertained to the King and not to the Arch-Bishop to take cognisance of the Imprisonment if or no it was lawful The Judgement is Videtur Domino Regi in pleno Parlamento praedictis Comitibus Baronibus c. Quod praedictus Archiepiscopus quantum in ipso fuit nitebatur usurpare super Coronam Dignitatem Regiam c. Propter quod per Comites Barones Justiciarios omnes alios de Consilio ipsius Domini Regis unanimiter concordatum est quod praedictus Archiepiscopus committatur Prisonae pro Offensa Transgressione praedictis Et super hoc ante Judicium pronunciatum licet unanimiter de Consilio praedict Magnatum aliorum concordatum fuisset tenendum in hoc Casu similiter in Casibus consimilibus in perpetuum praedictus Archiepiscopus Magnates alios de Consilio ipsius Domini Regis rogavit quod pro eo Dominum Regem requirerent ut ante pronunciationem Judicii ipsum ad gratiam suam admitteret voluntatem suam They interceded for him and he made Fine to the King of 4000 Marks and was received to favour They did not only give a Judgment in this particular Case which being Contra Coronam Dignitatem was tryable in Westminster-hall but they declare it to be a Standing Rule for the Judging of all Cases of like nature which shews the absoluteness of that Power of Judicature which is lodged in that House It was said That the Lords could not take a Cause to themselves per Saltum and before it had passed all the formalities below That a Writ of Error did not lie from the Common Pleas to the Lords House but must first be brought to the Kings Bench And the Case of the Bishop of Norwich was urged 50. Ed. 3. And it is acknowledged The Lords would not receive that Bishops Complaint but sent him away with that Answer nor could they give him any other For Writs of Error have their Walk and their gradual Proceeding chalked out and setled by several Statutes and by the Common Law of the Land But what doth that signifie against the Judicature of the House of Peers No man saith the Lords can either take Cognisance of Causes or judge Causes against the Law of the Land and take them per saltum when the Law prohibits it But they do say and affirm That by all the Examples and Presidents of former times it hath been the usage of that House to receive Complaints and give remedy in all Cases where the Law hath not expresly otherwise determined and if there be any thing in the Case which merits or requires and needs something above the ordinary Power and Proceeding of the Inferior Courts of Justice to administer that Relief which is just and due As in Cases of difficulty where a Court cannot or of delay where it will not proceed the Lords who have a general inspection into the Administration of the Justice of the Kingdom and into the Proceedings of all other Courts have ever upon Application made to them assumed to themselves the Cognisance of such Causes 14. Ed. 3. Sir John Stanton and his Wife had passed a Fine of certain Lands to Thomas Cranthorn who reverts them back and by that means setled them upon the Wife Sir Jeffry Stanton as next Heir brings his Formedon en le descender in the Common Pleas where after some Proceedings upon a Demurrer in Law Sir Jeffry could not get the Judges to proceed to Judgement Upon which he Petitions the King in Parliament which no man will deny to have been in the House of Peers They examine the Matter And afterward order a Writ under the Great Seal containing the whole Matter to be sent to the Judges there willing them thereby if the Matter so stood to proceed to Judgment without delay They not doing it an Alias is sent And the Judges doing nothing then neither and Sir Jeffrey renewing his Petition The Lords commanded the Clerk of the Parliament Sir Thomas de Drayton to go to Sir John Stoner and the rest of the Judges of the Common Pleas and to require them according to the Plea pleaded to proceed to Judgment or else to come into the House with the whole Record so as in Parliament Judgement might be given for one or the other of the Parties The Judges come at the day and the business was heard and it was adjudged That Sir Jeffrey should recover And a Writ under the Great Seal was sent to the Judges to give Judgment accordingly Here then the King in Parliament that is the House of Peers upon a Petition assumes the Cognisance of a Cause depending in the Court of Common Pleas which was so far from having passed all the formalities below that is to say an Appeal to the Kings Bench and Chancery that it was as yet undetermined in the Common Pleas. Nor did it appear unto them upon what ground it was that the Judges gave not Judgment So they might have answered Sir Jeffrey Stantons Petition with saying that they would first see what the Court would determine and what the Kings Bench afterwards But they apply themselves to give him relief And yet no Votes past against that House for so doing as now hath been in the Case of Skinner against this So in the Parliament of 18. E. 1. p. 16. of the Placita Parlamentaria William de Wasthul complains of Matthew del Exchequer for cosening him upon the levying of a Fine before the Judges of the Common Pleas by procuring an Atturney to slip in other Lands unknown to Wasthul and which be intended not to pass in the Fine This is returned back to those Judges because the Fine had been levied before them Et dictum est iisdem Justiciariis quod Recordum istud in Rotulis suis faciant irrotulare tam super Recordo isto quam super aliis ipsum Matthaeum coram eis contingentibus procedant ad Judicium debitum festinum faciant Justitiae Complementum True the House of Lords is not so bound up to forms but that it may when it thinks good vary and retain a Cause at one time which it will not do at any other time Yet we see they were proper Judges in this Cause for they order Wasthulls Complaint and the Proceedings before them to be entred as a Record in the Common Pleas and those Judges to proceed upon it which if they had not had Cognisance of the Matter had been all Coram non Judice and could have signified nothing And I must observe one thing which I think will not be denyed That all those Placita Parlamentaria whatever is said to be done Coram Rege in Parlamento is to be understood of the House of Peers where the King was in those times commonly present and alwayes understood to be there representatively So as his Name was ever mentioned in the Proceedings even when his Person was absent being sometimes out of the Kingdom sometimes detained away
Officio The Lords ordered him to be forthwith released The 21th of January the Committee for Petitions report the Complaint of William Waters and Thomas Waters How they had suffered much by an untrue and false Certificate made by Dr. Clerk and Dr. Sibthorp unto the Counsel-Table for their refusing to pay Ship-money whereby they were forced to pay the sum of 34 l for Fees Upon which Dr. Clerk and Dr. Sibthorp were heard at large The Lords ordered them to pay back the 34 l to the Complainants which they had paid for Fees and 100 l Damages And to be turned out of the Commission of the Peace The 22th of January the Committee for Courts of Justice reported the Complaint of the Lady Frances Weld Widdown against the Archbishop of Canterbury and Mr. Dell suggesting That she had been much prejudiced by them in the recovering of a Debt of 1300 l due to her upon Bond from Mr. Child Upon hearing of all Parties the Lords find the Archbp. and Mr. Dell free from blame and order them to be discharged concerning that business The 5th of February the Committee reports the Complaint of Jeremy Powel That the Bishop of Hereford had admitted a Clerk to the Vicarage of Burknill in Shropshire though the said Powel in the Right of himself and of Mary his Wife had caused a Ne Admittas to be directed to the Bishop The Lords upon bearing the business found that the Bishop had done contrary to Law and thereupon ordered him to pay unto Powel by way of Damages the sum of 30 l And the said Powel as Patron to be left in the same condition for tryal of his Right as he was before the Bishop had put a stop to his business The 9th of Febr. the Committee for Courts of Justice reports the Case of Nicholas Bloxam That Andrew Sandeland Clerk had procured a Sentence against him in the High-Commission Court by vertue whereof the said Sandeland had violently gained from him the possession of the Rectory of Great Waldingfield in the County of Suffolk The Lords judging this proceeding of the High-Commission to be most injurious and contrary to Law ordered That the Cause should be left to a tryal at Law at the next Assizes for that County That Sandeland should appear gratis and plead Not guilty that so the Cause might come to a final Determination that Assizes The same day the same Committee report That John Radway William Newark and Walter Cootes were presented Ex officio mero in the Ecclesiastical Court of Glocester and afterwards Excommunicated for going to Church out of their own Parish and upon pretence of a Significavit which was imperfect were arrested and cast into Prison where they continued Eleven dayes whereas there was no Writ justly taken out The Lords Ordered that Dr. Baber Chancellor of Glocester should pay to those three persons 40 l for Damages and the Undersheriffs Deputy Richard Byford 20. l upon the account of the Arrest The 23d of Febr. the same Committee report That Abraham Hill a poor aged man was committed to Prison in the year 1636 by Robert Buxton then Maior of Colchester by verbal command onely without any Warrant or Cause shewed and continued a Prisoner sixteen weeks to his utter undoing The Lords Ordered that the said Buxton should pay unto him 16 l by way of damages The 5th of March the Committee for Petitions inform the House that Complaint had been made before them That Nicholas Haws Gent. an antient man had not yet sued out his Livery in the Court of wards the Lords order him to do it without delay The 11th of March the Committee for Petitions gives account to the House that according to their Lordships direction there had been a Tryal at the last Assizes for Suffolk between Bloxam and Sandeland and that the Verdict had passed for Bloxam whereupon the Lords Order That Bloxam should discharge the Cure as Lawful Incumbent And that Sandeland should deliver unto him the quiet Possession of it It is worthy Observation That the Lords after they had referred the Decision of the Title for Matter of Fact as to the forcible Entry to the Common Law remained still Judges of the Cause and their Judgement setled the Possession The second of April 1641. The Committee Reports That Lambert Osbolstone Clerk had complained of a Sentence in the Star-Chamber by which he was degraded and deprived of all his Spiritual Livings and Preferments being a Prebend of Westminster and Parson of Whethamsted Fined in 5000 l to the King and adjudged to pay the like Sum for dammages to the Arch bishop of Canterbury and to be Imprisoned The Lords Order That be shall be freed and discharged of his Fine Dammages and Imprisonment and be restored to his Prebendary and Parsonage The sixth of April 41. The Committee Reports That the Lady Dyer had made her Complaint That primo Caroli she had lent Sir Richard Tichburn 400 l upon Bond and sued it to a Judgement but Sir Robert Pye Mr. Button and others had extended all the Lands lyable to that Judgement at a far undervalue to deprive her of all the benefit of it The Lords Order That Counsel of both sides should agree to draw up Assurances for setling the payment of all the Parties upon the Judgement and Extent to be all Signed and Sealed by them and that the Lady Dyer should be first satisfied and enjoy the Lands till then One thing by the way is to be noted That Sir Robert Pye was then a Member of the House of Commons The twelfth of April 41. The Committee Reports a Complaint of Dr. Walker That Sir John Lamb had unjustly taken from him his Offices of Commissary of Leicester and of Official to the Archdeaconry there which he injoyed by Patent for life That now Sir John Lamb took the Profits of them to himself And had forced him by many Menaces and Oppressions to release all Suits and Actions to his utter ruine and undoing and to his Loss and Dammage of above 1500 l The Lords Order That Sir John Lamb should pay unto the said Dr. Walker by way of Damages the sum of 1500 l to be levied upon his Lands and Chattels should be brought to the Bar as a Delinquent and there receive a Reprebension The twelfth of June 41. The Committee Reports a Complaint of Edward Bagshaw his Brother Henry and Sisters Mary and Margaret against their Brother Thomas concerning Portions and Annuities given them by their Fathers Will That all parties have been heard and their Witnesses Upon hearing the State of the Matter The Lords Order Thomas to put in Security within four dayes for the payment of the Portions according to the Will And to give security by Land for the paying of an Annuity of 20 l per annum to Edward for term of his life That then the said Edward shall release by a Fine to the said Thomas all his Estate Right Title and Interest in the Lands and Goods of
Johns of Hierusalem sues him in Chancery for the Mannors of Temple-hurst and Temple-newsom which Ed. 3. had granted to John Darcy his Father and produces a Deed shewing that the Priors Predecessor had passed the Fee of them to Ed. 2. The Lords order that Deed to be sent to the Treasurer and Barons of the Exchequer to examine the Kings Title and in the mean time stop Proceedings in Chancery This is more then taking Cognisance of a Matter Originally for they take it out of one Court where it depended and was undetermined and send it to be examined in an other Court which shews the Ascendant they had upon all other Courts 4. R. 2. n. 17. Sir Ralph de Ferriers had been seised by the Duke of Lancaster upon the Marches of Scotland upon suspicion of Treason for holding Intelligence with the French the Kings Enemies upon some Letters of his to several French Lords found and taken up by a Begger He was brought into Parliament before the Lords and put to his Answer He first desired Counsel then offered the Combate against any that would acouse him both were denyed him Then he applyed himself to his Answer And after several dayes hearing the Lords still remanding him to Prison he so well defended himself That the Lords suspected the Letters to be forged and therefore committed the Begger and bayled Sir Ralph delivering him to his Manucaptors 5. R. 2. n. 45. The Chancellor and University of Cambridg Petition against the Major Bayliff and Commonalty of the Town for breaking up their Treasury burning their Charter and by force compelling them to make Releases of some Actions they had brought against the Town and enter into Bonds to them for great Summs The Lords direct a Writ to issue out to the Maior and Bayliffs to appear in Person and the Commonalty by Atturney They appear The Chancellor exhibits Articles against them They being asked why their Liberties should not be seised plead to the Jurisdiction that the Court ought not to have cognisance of them They are told Judgment should be given if they would not answer Then they answer and the business is heard The Townsmen are ordered to deliver up those Deeds forced from the University which are presently cancelled The Town Liberties are seised into the Kings hands and part of them granted to the University Some are granted back to the Town for which they were to pay an increase of Rent Note here is a Plea to the Jurisdiction and that Plea Overruled 8. R. 2. n. 12. The Earl of Oxford complains of Walter Sibell of London for a Slander in having to the Duke of Lancaster and other Noble-men accused him of Maintenance The Lords hear the business Commit Sibell to Prison and give 500 Marks dammages to the Earl 9. R. 2. n. 13. The Case of the Duke of Lancaster complaining That Sir John Stanley had entred upon the Mannor of Latham which held of him and had not sued out his Livery in his Court of Chancery The Lords order him to sue out his Livery But this hath been already mentioned 15. R. 2. n. 16. The Prior of Holland in Lancashire complains of a Riot committed by Henry Trebble John Greenbow and others and of an Entry made by them into the Parsonage of Whit wick in Leicestershire John Ellingham the Serjeant at Arms is sent for them who brings them into the Parliament The Lords commit them to the Fleet. N. 17. The Abbot of St. Oseches complaineth of John Rokell for Embracery This Case hath been already cited N. 18. Sir William Bryan had procured a Bull directed to the two Archbishops to excommunicate some that had broken up his House and carried away Writings This was read in Parliament and adjudged to be prejudicial to the King and to be in Derogation of the Laws for which he is committed to the Tower N. 20. Thomas Harding accuseth Sir John Sutton and Sir Richard Sutton and layeth to their charge that by their Conspiracy he had been kept Prisoner in the Fleet Upon hearing of both Parties for that the two Knights were known to be men of good Fame The Lords adjudge him to the Fleet. N. 21. John Shad well complains against the Archbishop of Canterbury for excommunicating him and his Neighbors wrongfully for a Temporal Cause appertaining to the Crown and to the Laws of the Land The Lords hear the business find the Suggestions untrue and commit him to the Fleet. 1 H. 4. n. 93. Sir William Richill one of the Justices of the Common-Pleas who by express Order of Ri. 2. went to Calais and took the Examination and Confession of the Duke of Gloucester after murdered by Hall was brought a Prisoner into the Lords House the King present and by Sir Walter Clopton Chief Justice apposed And answered so fully shewing his sincere dealing that the Lords one by one declared him innocent And Sir Walter Clopton pronounced him such 4 H. 4. n. 21. The Case of Pontingdon and Sir Philip Courtney where the Lords direct the Tryal appointing what the Issue shall be and what kind of Jury shall be impannelled to prevent Sir Philip 's practices in the Country It hath been cited before at large 1. E. 4. m. 6. n. 16. The Tenants of the Mannor of East-Maine belonging to the Bishop of Winchester the King being in his Progress in Hampshire in the Summer-time complained to him of their Bishop for raising new Customs among them and not suffering them to enjoy their Old ones The King bids them come to Parliament in Winter and they should be relieved They come and the King recommends their business to the Lords They commit it to certain Justices to examine Upon their Report and upon mature Deliberation it was adjudged That the Tenants were in fault That they complained without cause and they were ordered to continue their said Customs and Services Here observe there was the recommendation of the King in the Case just as now in Skinners and this difference that a question of Custom betwixt Lord and Tenants was properly determinable by the Common Law and a Jury of the Visenage and this of a Trespass in the Indies to be punished in Parliament or no where which justifies the Proceedings there 43. Eliz. the 18th of December A Complaint was made to the Lords by the Company of Painters against the Company of Plaisterers for wrong done them in using some part of their Trade Their Lordships referred it to the Lord Maior and Recorder of London to be heard examined adjudged and ordered by them Which was all one as if they had done it themselves For it was done by their Authority and by their Order Qui facit per alium facit perse 18. Jac. The Lords took notice of the Proceeding of the House of Commons in the Case of one Flood whom they had convented before them for insolent and scandalous words spoken by him against the Prince and Princess Palatine examined Witnesses and given Judgment in the Cause
which they look'd upon as deeply trenching upon the Priviledges of their House all Judgments properly and solely belonging to them Thereupon they sent a Message to the House of Commons and desired a Conference At which Conference the Commons confessed That out of their Zeal they had censured Flood But they left him now to their Lordships and hoped their Lordships would censure him In order to which they sent up a Trunk of Writings concerning his Case Then the Lords proceeded to the hearing of it examined several Witnesses and heard all Flood could say for himself which done they adjudged him Not to bear longer the Arms of a Gentleman To ride with his face to the Horse tayl to stand upon the Pillory with his Ears nailed to be whipped at a Carts tayl to be fined Five thousand pounds and to be imprisoned in Newgate during life 21. Jac. Thomas Morley was convented before the Lords for delivering a Scandalous Petition to the House of Commons as himself affirmed against the Lord-Keeper Coventry Upon examination it appeared that it had not been presented to the House of Commons only to their Committee of Grievances that he had published very many Copies of it even since his being convented before their Lordships They adjudge him to be imprisoned in the Fleet to pay 1000 l Fine to stand with his neck in the Pillory to make his Submission and Acknowledgment at the Barr. 22 Jac. Mary Brocas petitioned the Lords to be relieved for a Debt of 1000 l due unto her by Bond from the Muscovia Company Upon hearing both sides their Lordships order the Company to pay the Debt with 5 l per cent Interest out of the Leviations which the said Company had made among themselves for the payment of their Debts The same Parliament May 28. Thomas Pynckney petitions the House in the behalf of himself and other Creditors of Sir John Kennedy to be relieved for Debts owing to them from Sir John by the sale of Barn-Elms Lands in the possession of his Heir John Kennedy The Lords upon examination of the business find cause and so they order it That Barn Elms should be sold to the best value and the Profits to be sequestred in the mean time into indifferent hands And that a Recognizance of 2000 l in which Pinckney stood bound in Chancery should be withdrawn and cancelled The same Parliament again Grizell Rogers Widow petitions the Lords for the setling her Title to certain Lands in Heygrove in the County of Somerset and for quieting and ending divers Suits and Differences between her and Sir Arthur Ingram Sir William Whitmore c. They order her Satisfaction out of particular Lands And all Suits to cease between them And appointed Releases of all differences on both sides to be drawn and sealed 4. Car. 31. Jan. The Lords Committees for Petitions make report to the House of a Petition of Benjamin Crokey against John Smith in behalf of a Grammar-School at Wotton-Underedge in the County of Glocester which School was endowed with great Possessions by the Widow of the Lord Berkly in Richard the 2 ds time which were now much abated and brought to an undervalue by the cunning practices of the said Smith Upon which the Lords awarded a Commission to issue out of the Chancery to survey all the said Lands And ordered also a special Habeas Corpus to be directed to the Warden of the Fleet where Crokey was a Prisoner to bring the Body of the said Crokey before the Lord-Keeper to the intent he might attend the said Commission And ordered further That if Crokey did make it appear the value of the Lands to be so as be said and that to be approved by the Lords Committees for Petitions then Smith to repay to the said Crokey such Charges as he shall disburse in the Prosecution In the Parliament of 1640 Decemb. 16. Upon report from the Lords Committees for Petitions That Mistris James complained against Sir Edmond Sawyer for sheltring himself under a Royal Protection which he had procured by which means she could not sue him upon a Bond of 500 l for so much Money borrowed of her and two years Interest and so was debarred from helping her self by any Legal course The Lords ordered that the said Mris James should proceed against the said Sir Edmond Sawyer for the recovering of her Debt in any Court where she thought best notwithstanding his Protection December 21. The Lords Committees report a Petition of Katherine Hadley complaining that she had been kept a long time a Prisoner in the Common-Gaol in the Old Bridewell without any cause shewn the Lords ordered her Release The 22th of Decemb. Upon a Report from the Lords Committees of Sir Robert Howard's Case complaining that he had been committed Close-Prisoner to the Fleet by the High Commission Court and kept there three months till he was fain for his enlargement to enter into several Bonds with Sureties in the sum of 3500 l For which he desired Reparations and his Bonds to be cancelled The parties interessed were summoned and heard And after due consideration the Lords ordered a thousand pound damages to Sir Robert Howard of which 500 l to be paid by the Archbishop of Canterbury 250 l by Sir Hen. Martin and 250 l by Sir John Lambe the Bonds to be forthwith cancelled and delivered to Sir Robert Howard The 23d of Decemb. They reported the Case of William Dudley that he having arrested the Lord Wentworth son to the Earl of Cleveland for a Debt of 400 l entred a Caution in Mr. Justice Bartley's Chamber for good Bayl to be taken yet Justice Bartley had released the said Lo. Wentworth upon such Bayl as the said Dudley was utterly disabled to recover his debt Justice Bartley being called made no good Answer thereunto The Lords thereupon order that the said Justice Bertley should forthwith assure unto the said Dudley his House and Land near Barnet for securing the said Debt with Interest and Damages The same day they report likewise the Case of Mris Mary Stanhope Widow Daughter-in-law to the Earl of Chesterfield complaining that the said Earle refused to assure unto her 40 l per Annum during her Widowhood according to a former Agreement made between them which appeared to be true by a Letter produced under the Earl's hand And his counsel being heard and no good cause shewn why the Petitioner should not be relieved The Lords ordered the Earl of Chesterfield forthwith to assure to the said Mris Mary Stanhope his daughter-in-Daughter-in-law 40 l per Annum during her Widdowhood and to pay unto her such money as was in arrear of the 40 l per Annum due to her for the space of two years The 30th of December the Lords Committees for examining Abuses in Courts of Justice report the Complainâ—… of John Turner a Prisoner in the Gate-house committed thither by the High-Commission Court where he had lain fourteen years for refusing to take the Oath Ex
from the Ships worth and other particulars in a Schedule would have rendred alone above 20000 l sterling yearly Yet I submit that and my whole Sufferings and Concerns to your Lordships Determination in hopes That if I do not receive an adequate Recompence yet I shall by his Majesties Grace and your Lordships direction be enabled by the restoring of my Island Barella in India to reap a future benefit without the East India Companies further molestation or interruption His Majesties late Charter granted the third of April 1661. prohibiting the Company expresly to undertake any thing against any Christian Colonie setled in India before the date thereof October the 6. 1666. Signed Thomas Skinner THe Lords Referrees finding this vast disproportion between the demands and Pretences of the Petitioner and the real loss and damage which he had sustained and the Offers on the other Side of the Company for his Reparation and Satisfaction and seeing no possibility of reconciling them though much pains had been taken in endeavouring it at last resolved to report it back to the King and Councel and made their Report as followeth IN pursuance of his Majesties Order in Councel dated the three and twentieth of March last we have treated with the Governor and Company of Merchants trading into the East Indies and have heard the Councel both of the said Company and Thomas Skinner Complainant in the disquisition whereof we found the said Thomas Skinner to have suffered much wrong by the said Company and their Agents and therefore endeavoured to perswade the said Company to give satisfaction to the Petitioner but there being a great difference between the Petitioners Demands of Reparation for Damages and the Companies Offer towards the same our Mediation proved ineffectual therein As to the Island of Barella in the East-Indies claimed by the said Thomas Skinner We conceive that he ought to enjoy the same and from thence to trade into any part of the world except into England Given under Our Hands the sixth day of December 1666. Signed Gilb. Cant. Clarendon C. J. Roberts Ashley HIs Majestie upon this finding the East-India Company would be brought to no reason thought fit to recommend the business to the House of Peers to do the Petitioner Justice according to the merits of his Cause which Message was brought to the House the 19. of January 1666 by the Lord Privy Seal and all the Proceedings in Councel transmitted thither and withall a Petition from Skinner himself was presented to them setting forth the wrongs done to him by the East-India Company The House of Peers thus possessed of this business Order a Copy of Skinners Petition to be given to the Governor and Company and they to bring in their Answer to it upon Friday the 28 of January They accordingly bring in for Answer a Plea to the Jurisdiction of the House of Lords and say That the Petition is in the Nature of an Original complaint not brought by way of Appeal Bill of Review or Writ of Error nor intermixed with Priviledge of Parliament nor having Reference to any Judgement of that Court therefore offer If it will please to take any further Cognizance of that Cause And then plead over and say That the Company was incorporated by several Charters in the Reignes of Queen Elizabeth and King James and likewise by a Charter from Oliver which excluded all others not Members of the Corporation from trading in any part of the East-Indies within the limits of the said Charter and that therefore if any such Injuries were done it was by vertue of the Charter and whether Criminal or Civil they were for ever released and discharged by the Act of Oblivion The Lords upon debate of this Plea well knowing their own Right to retain even Original causes when accompanied with such Circumstances as this then before them had A poor man oppressed by potent Adversaries by a rich and numerous Society where there was a Peer of the Realm the Lord Berckley of Berckley Gentlemen of great Estates very many wealthy Merchants incorporated in one body driving on a great trade in the Indies with one joynt stock resolved to imploy that whole stock for the destruction of any man that should presume but to touch upon that trade without their leaves which was this poor mans Case in a time when he had been encouraged thereunto by a general Liberty then taken to trade in that Country who after the spoyle of his goods and Plantation there to save his life they having beset his passage by Sea was glad to expose himself to the hazard and charge of a Journey of many thousand Miles over Land to return into England that he might here endeavor to get some reparation for all those losses which that Company with their great purse and power opposed and had already made him spend that little Estate he had left and seven years attendance to prosecute that reparation without any fruite So as to go to Law with them and abide all the delayes and formalities even of the ordinary Proceedings at Law much less what such Adversaries would have raised to him he was no waies able The Lords I say knowing all this and that what was pretended of the Indemnity by the Act of Oblivion was of no validity that Act not at all intended for things of this nature betwixt party and party not relating to the Warr made no difficulty to over-rule their Plea and enter into the disquisition of the Fact and to do the poor man Justice and give Releife if they found cause for it as a work worthy of them much conducing to the administration of the publick Justice of the Kingdome and most agreable to the constant practice of that House from the very beginning of Parliaments Wherefore they appointed Tuesday the 24 of January for the Counsel of both sides to be heard at the Barr. But such art was used so many delayes cast in by the Company and their Counsel as the cause could not be brought to hearing during all that Session of Parliament At the next meeting of the Parliament in the year 1667. Skinner renued his suit and presented a Petition the 30. day of October In haec verba TO THE RIGHT HONOURABLE c. The Humble Petition c. THat in the year 1657. Private Trade being open in the East-Indies the Petitioner set forth his ship Thomas on a trading voyage to the said Indies where being arrived in 1658 he possessed himself of a Ware-house on the River side of Jamby on which his ship rode wherein he put a great part of his goods and also had a house at Jamby and goods therein and purchased of the King of Jamby the Island of Barella and built a house for habitation and had contracted for planting of Pepper and other Commodities thereon That in May 1659. the Agents of the Governour and the Company of Merchants of London trading into the East-Indies by direction of the said Governour
Subjects shall commit Treason though out of the Limits of this Realm it shall be tryed in any place that the King shall appoint by Commission under the great Seal So a special Commission was to be issued for it And several other Statutes were afterwards made of the same Nature But for Trespasses as this of the East India Company against Skinner there is no Act of Parliament to authorise the Prosecution at Common Law nor I think any Book Case to warrant the practice of it Book Cases against it there are many even for Trespasses in the Isle of Jersey though within the Kings Dominions because a Venire Facias could not go thither to summon a Jury from thence Mich. 42 as Mr. Prin cites it or 41. as Sir Edw. Cook E. 3. Coram Rege rot 109. An Inhabitant of Jersey complains to the King and Councel of false Imprisonment and several Injuries done him in the Island They send this Bill of Complaint to the Judges of the Kings Bench and there the Bill is dismissed Quia compertum est saith the Record quod negotium praedictum in Curia hic terminari non potest eò quod Juratores Insulae praedictae hic venire non possunt c. Other Cases there are of the same nature And if a Fiction could not help for Jersey being part of the Kings Dominions much less could it help for Forein parts where the King had no Authority at all Yet the House of Lords hath in all times exercised Jurisdiction upon Crimes done and committed in Forein parts as well as those within the Kingdome both Treasons and other Offences As in the Cases of the Lord Latimer for the loss of St. Saviour in Normandy and Oppressions done by him in Britany 50. E. 3. n. 21. Of William de Weston for the surrender of Outherwick in Flanders 1. R. 2. n. 38. John de Gomeniz for Ardes 1. R. 2. n. 40. Pierce de Cressingham and John Spickworth for the Castle of Drinkham in Flanders 7. R. 2. n. 17. The Bishop of Norwich for not doing Service beyond Seas according to promise and as he ought to have done for delivering up Graveling to the French not mustering his Army at Calice as he should have done and not having his Number compleat n. 18. Sir William Elinsham Sir Thomas Trevit Sir Henry Ferrers Sir William de Hurnedon and Robert Fitz-Ralph for delivering strong Holds and Fortresses for Money n. 24. John Hall a Servant to the Duke of Norfolk for Murthering the Duke of Gloucester at Calice 1 H. 4. n. 11. Sir William Richill for but taking the Examination of the Duke of Gloucester at Calice 1 H. 4. n. 93. And multitudes of others who could not have been tryed by the Common Law were tryed by the House of Lords And in truth a man may say the whole Case of Skinner in every point of it was only cognisable before them However it being out of all dispute even by the Confession of the Judges That some things in it are not tryable in Westminster Hall I hope it may be thought reasonable to leave as great an extent of Power to the House of Peers which is the supreme Judicature of the Kingdome as to the Court of Chancery where the ordinary practice is to retain a Cause when there is Equity in any part of it The Lords therefore Ordered the hearing of the Cause spent several daies in it and having with much patience heard all that could be said on both sides appointed a day to consider what was fit to be done super totam materiam Upon which day after a solemn debate they came to this Resolution only in general That Thomas Skinner was to be relieved by that House And referred it to a Committee to consider what damages he had sustained by the Governour and Company trading to the East Indies and to report their Opinions what Recompence was fit to be given him for the same Whilest the Business was under the consideration of the Committee and before the House of Peers had made any Determination of it a Petition was said to be presented by the East India Company unto the House of Commons which I will set down word for word before I give it any Epithete and upon reading it I think every unprejudicate man will say one cannot give it an Epithete bad enough the Petition was thus TO THE HONOURABLE The Commons of ENGLAND in Parliament Assembled The Humble Petition of the Governour and Company of Merchants of London trading to the East Indies Humbly sheweth THat Thomas Skinner lately exhibited a Petition to the Right Honourable the Lords Spiritual and Temporal in Parliament assembled against your Petitioners many of which are and were Members of this Honourable House when the said Petition was exhibited for Injuries pretended to be done by your Petitioners Factors in the East Indies in seizing his Ship Goods and Money and dispossessing him of a small Island there all which Matters excepting what concerns the Island are Matters clearly determinable in his Majesties Ordinary Courts of Law as by the Judges attending their Lordships hath been resolved and reported And for the Island the same is parcel of the Dominions of a Foreign Prince and so the Right thereof only determinable by the Laws of that Prince That though the Petitioners did humbly tender a Plea to their Lordships for that the Petition was in Nature of an Original Complaint concerning Commoners only and not brought to their Lordships by Writ of Error or Bill of Review or any way of Appeal and that the Matters therein were relievable in the Courts of Westminster Hall and thereupon prayed the Judgement of that High Court whether it would please to take further Cognizance thereof Yet their Lordships have been pleased not only to give a hearing to all the Matters in the said Petition contained but have denied to gran◠the Petitioners a Commission or so much a◠time to send for their Witnesses now inhabiting upon the place where the Injuries were pretended to be done and without whos◠Testimony it was impossible for the Petitioners to make their Defence That upon the said hearing their Lordships were further pleased to appoint a Committee to assess damages against your Petitioners which Committee is now proceeding thereon accordingly whereby several Members of this Honourable House who are of the said Company as well as others your Petitioners may be highly detrimented All which proceedings as your Petitioners humbly submit to your Honourable Judgements are against the Laws and Statutes of this Nation and Custome of Parliament In tender Consideration whereof and for as much as these unusual and extraordinary Proceedings of their Lorships are not only grievous to your Petitioners at present but may also be a President of ill Consequence to all the Commons of England hereafter and for as much as your Petitioners have no way of Relief in this Case otherwise than by making their humble Addresses to this Honourable
onely Whereas the Lord Berckley of Berckley a Member of the House of Peers is likewise of that Company which intitles yet more particularly that House to the Cognizance of the whole business upon point of Priviledge one of their Members being a party All these untruths are in matter of Fact Then for their Inference upon them the Judgement they give against the House of Lords their censure of their Proceedings to be against the Laws of the Land and the Custome of Parliament to be unusual and extraordinary to be a President of ill consequence to all the Commons of England now and hereafter this I hope no man will say to have truth in it but to be a false Imputation and a Slander or as the Lords themselves tern it a Scandalous Libell against the House of Lords And as untrue it is what they say in the close of their Petition and withall most Injurious to the House of Peers viz. That the Petitioners had no way of relief in this Case otherwise then by making their humble Addresses to the House of Commons Whereas ever since Parliaments have been in England the constant practice hath been and multitudes of Presidents there are of it of Appealing to the next Parliament from any Judgment given by a former Parliament which was grievous and unjust And never in this world before was there any Appeal to the House of Commons from a Judgment of the House of Peers much less to take a business out of their hands or give a stop to their Proceedings before they were come to a conclusion Then which nothing can be a greater Violation of the Rights and Priviledges of either House Nor would the House of Lords ever have endured that any should have used the House of Commons so in any application unto their Lordships Yet upon the examination it appeared that this Petition had been really presented to the House of Commons and was there received The Lords then fell upon the consideration of the main business in question between Skinner and the East-India Company and making Reflexion upon what had been alleged on both sides and the proofs gave this Judgment That the Governour and Company should pay unto Thomas Skinner for his losses and damages sustained the Sum of 5000 pounds one thousand within two daies after the serving of this Judgment two thousand pounds in three moneths after and two thousand pounds more in three months after that And they referred to the Committee for Priviledges to examine who was the publisher and disperser of that Scandalous Paper or Petition which they had voted a Scandalous Libell and to make Report thereof to the House In the disquisition of this business which held many daies at the Committee and in the House and where the Lords found much shuffling in the Persons they examined who were Servants and Officers to the Company It appeared at last that the Petition had really been presented to the House of Commons and well received by that House that it had been prepared by a Committee of the Company that Sir Samuel Barnardiston Deputy Governour of the Company Sir Andrew Riccard Mr Rowland Winn and Mr. Christopher Boone were of that Committee and Actors in it but especially Sir Samuel Barnardiston the most Active man who gave no Satisfaction to their Lordships in his Answers which the others did and by their submission obtained favour but the Lords adjudged him guilty of contriving that Scandalous Paper and fined him 300 l. to the King and to remain a Prisoner in the Custody of the Black-Rod till he paid his Fine And now the House of Commons ownes the Cause and seems not only to Justify these Actings of the East-India Company but to lay blame upon the House of Lords and passes certain votes to that purpose which they brought up to the Lords and delivered at a Conference And began with telling the Lords That they had examined the East-India Companies Petition and found the Allegations in it to be true That such Proceedings had been in the House of Lords And that the Lords had since adjudged them to pay 5000 l to Skinner and that the House of Commons thought these Proceedings to be of so very high Concernment to the Right of all His Majesties Subjects that they had passed those Votes upon it The Votes were these 1. That the House of Lords taking Cognizance of and their Proceedings upon the matter set forth and contained in the Petition of Thomas Skinner Merchant against the Governour and Company of Merchants of London trading to the East-Indies concerning the taking away of the Petitioners ship and goods and assaulting his Person and their Lordships over-ruling the Plea of the said Governour and Company the said cause coming before that House Originally only upon the complaint of the said Skinner and being a common Plea is not agreeable to the Laws of this Land and tends to deprive the Subject of his Right Ease and Benefit due to him by the said Laws 2. That the Lords taking Cognizano of the Right and Title of the Island in the Petition mentioned and giving damages thereupon against the said Governour and Company is not Warr anted by the said Laws of this Land The Lords were much surprised with these Votes which gave them cause to make a serious Reflection upon what had passed in the business of Skinner and to take a due examination of all Circumstances The way that it came unto them at first upon the Kings Recommendation Their own Right to take Cognizance of Judge and determine and give redress in causes of that nature Then the merits of this particular cause A poor man oppressed by great Ones very unable to contest with them at Law and so very unlikely there to receive relief and have any reparation from them admitting it had been in the power of the Law to have helped him which it was not and The manner of their Proceeding in the hearing examining and determining of it in which they had used all the moderation Imaginable going by steps and dgrees taking first the Opinion of the Judges to know if the man were relievable else where who said he was but in part and not for all relievable in Westminster-Hall which made them undertake it Then giving way to and bearing with many delayes of the East-India Company suffering the business upon several Pretences and excuses of theirs to be put off many daies when their Lordships were prepared to hear it and had laid aside other business for it by which means a whole Session was lost to the poor man And when at the next meeting of the Parliament it was heard in which a great deal of time and very many daies were spent yet not presently to come to a resolution but appoint a day for the debate of it and when that day came not to give a full Judgment but only pass a previous Vote That some Relief was fit to be given and take longer time to consider
What and How much and referr it to the Consideration of a Committee to prepare it for the House And that then in that Interim of time before any thing was determined whilest but in Agitation and under consideration what should be done a Scandalous false railing Petition to be delivered to the House of Commons against the House of Peers contrary to all usage Right and Priviledge of Parliament and what was expresly forbidden 9. H. 4. N. 22. And this not withstanding not knowen upon what mistake for a mistake it must have been to be received with approbation by the House of Commons and seconded and confirmed by those forementioned Votes which were broughâ— up to the Lords and declared unto them at a Publick Conference Aâ—â— these things considered made the Lord very sensible who thought if there haâ— been failings that a gentler application had yet been more convenient but conscious to themselves of none and very confident that what they had donâ— was most Justifiable by the constanâ— course and practice of their House and in it self most Just and Equitable they conceived it absolutely necessary for thâ— Vindication of themselves and the asserting of their Rights to pass likewise two votes in Answer to the two of the House of Commons 1. That the House of Commons entertaining the Scandalous Petition of the East India Company against the Lords House of Parliament and their Proceedings Examinations and Votes thereupon had and made are a Breach of the Priviledges of the House of Peers and contrary to the faire cor-respondency which ought to be betweene the two Houses of Parliament and unexampled in former times 2. That the House of Peers taking Cognisance of the Cause of Thomas Skinner Merchant a Person highly oppressed and injured in East India by the Governour and Company of Merchants of London trading thither and over-ruling the Plea of the said Company and adjudging 5000 l damages thereupon against the said Governour and Company is agreeable to the Laws of the Land and well warranted by the Law and Custome of Parliament and Justified by many Parliamentary Presidents Ancient and modern Two Conferences past between the Houses upon this occasion One asked by the House of Commons the other by the Lords and what past at both the objections of the one side and the others Answers What was said by the Commons against the Proceedings of the Lords and what by the Lords to maintaine what they had done the substance of all that was said on both sides I shall here set downe as briefly as can as I find them entred in the Journal Book of the House of Lords where they are now a Publick Record The Gentlemen of the House of Commons that managed the Conference on their parts endeavored to maintain their votes by shewing the reasons of them They said that Pleas being of two natures Common Pleas and Pleas of the Crown in this Case they said they did not meddle with any part of their Lordships Judicature concerning Pleas on the Crown this being of the First sort and those being of two natures Personal or Real actions and in both all proceedings must be by the Kings Original Writ And this being a Case between Person and Person and so a common Plea ought to be proceeded in the Ordinary way by the Kings Original Wriâ— Presidents were brought for this vshered in with a Preamble That where the party never pleades to the Jurisdiction of the Court it is ordinary for Courts to proceed though in Cases not within their Jurisdiction The Presidents cited were out of the Placita Parliamentaria four in Ed. 1. time 1. President 18. E. 1. Johannes de Insula against the Bishop of Winton fol. 33. John de Insula prosecutes for the King Complains that the Bishop had disposed of an Hospitall which belonged to Queen Eleenor the Kings Mother and ejected her Tenant the Bishop Pleads that he found his Church seised of that advowson petit Judicium si debeat sine Brevi Domini Regis inde respondere The Judgement is Et quia praedictus Episcopus invenit Ecclesiam suam seisitam de praedicta advocatione tempore Creationis suae Ideo ipse quoad hoc eat inde fine die ad praesens Dominus Rex habeat Breve versus ipsum Episcopum quod reddat ei Advocationem c. quoad Ejectionem inquiratur veritas per Patriam 2. President in the same Parliament 18. E. 1. The Case of Hugh de Louther and the Heirs of Henry de Edelynthorp F. 43 Where it was much insisted upon these words Nec est Juri consonum vel hactenus in Curia ista vsitatum quod ali quis sine Lege Communi Brevi de Cancellaria de Libero Tenemento suo respondeat Et maxime in Casu vbi Breve de Cancellaria locum habere potest There fore dictum est praedicto Adae quod sibi perquirat per Breve de Cancellaria si sibi viderit expedire 3. The Case of William de Valentia Earl of Pembrook Jone his Wife and Isabell le Mareschal 18. E. 1. p. 44. Isabell Complaines of the Earl for assuming Jurisdiction in the Commote or Hundred of Esterlow which is in the Kings County of Kermerdyn and not in Pembrook-shire which belongs to the Earl and ejecting her He pleads that he is seised of it in the Right of his Wife and they crave Judgement si sine Brevi Domini Regis inde debent respondere The Judgment is Quia praedicti Willielmus Johanna sunt in Seisina de praedicta Jurisdictione per discensum haereditarium non per Usurpationem seu Purpresturam quod eant inde sine die ad praesens Dominus Rex habeat Breve si voluerit The Gentlemen of the House of Commons observed upon this That if there had been a Crime as Usurpation or Purpresture such Cases had usually been tryed in the Lords House But then added That if that had been the Case much might be said now how the Constitution of the Government hath been altered since The 4 th President in the 18. of E. 1. F. 51. was the Case of Roger de Somerton and the Prior of Buttele Somerton followes for the King and by Petition Complaines that the Prior unjustly withheld from the King the mannor of Somerton The Prior Answers that he holds it in the Right of his Church of Buttele petit Judicium si debeat inde sine Brevi Domini Regis respondere The Judgment is Ideo praedictus Prior quoad hoc eat inde sine die ad praesens Dominus Rex habeat Breve c. And this though the King was concerned as was observed by them By these Presidents they said it did appear that in Cases of Free-hold there is no Proceeding without an original Writ and then necessarily and Demonstratively it must follow That the Lords can not Judge in these Cases for there was never any Writt Returnable Coram Dominis Spiritualibus
a jurisdiction especially when many in number are produced and some of all times and in every Kings Reign of which the Records can be had which shewes a Continuance of and so an unquestionable Right to such a power One or two or twenty then in the Negative that the Lords did not do so in such and such Cases Nay I say more were the Number equall as many in the Negative as in the Affirmative yet it could not disprove their Jurisdiction It would only shew that their Lordships were free Agents to do it or not do it as they saw Cause But their Jurisdict on remained still enure to do it whensoever they would And when all is done I may say all this is Nihil ad rem and concernes not the point in question which is If the Lords have done well or ill in relieving Skinner against the East-India Company for he was not relievable aâ— the Common Law as hath been shewed And if he had not been relieved there had been a failer of Justice So as there was a necessity of their Lordships acting in that particular to keep up the publick Justice of the Kingdome And all Presidents and all that can be said and urged to shew that the House of Peers ought not to meddle with matters determinable at Law are in truth out of doors and can not concerne this House of Peers which never did it but the contrary For whensoever it appeared that any business before them was proper to be tryed at Law they presently dismissed it Yet since their Right is questioned they must defend it though they gave no Occasion for it having not at all put that Right in execution nor as it may well be presumed by their proceeding hereto ever intending it As to the 6 other Presidents oâ— Petitions Answered in the Parliament of the 14 of E. 2. which the Gentlemen of the House of Commons themselves seemed not to lay so much weight upon The Lords thought they did wisely in it for they were not such as would bear weight to build upon The Lords of that Parliament according to the several natures of the businesses Petitioned for dismissed the Petitioners with several directions Which shewes they took Cognizance of those matters One was directed to take out his Writ novaedisseisinae and an other to bring his action of Trespass the third they send to the Common Law the fourth into the Chancery the fifth they Order to bring his action of debt the sixth who complained of several things to him they gave particular Answers and particular Directions to every point One of which they said pertained not to the King that is to his Laws so they could give no Order in it it was concerning the Resignation of a living which was to be tryed by the Laws of the Church For the other points they disposed them into their proper Channells Was this to be done by a Court that had no Jurisdiction in these matters No rational man can think so But it would be considered that in this Case of Skinners the Lords could give none of those Answers neither sibi perquir at per Breve de Cancellaria not Sequatur ad Legem Communem or tobring this or the other Action For neither Law nor Equity in the Ordinary way of the Inferior Courts could relieve him for the loss of his real Estate in the Indies the Judges said he was not relievable for his House and Island So as none of those Presidents are applicable to the point in question Not that the Law even in the ordinary execution of it provides not for the punishment of all Crimes It declares against and condemns the Fact but can not reach the person to punish him when he hath committed that Fact in a Forrein Country Ubi lex Angliae non currit And the House of Peers hath but helpt the Law to inflict such punishment upon Offenders as by the Law was due to them which otherwise they had escaped And were it but this it sufficiently justifies the Proceedings of the Lords in that particular Case Then as to the Jurisdiction of that House in the generall it will be made as apparent as the Sun at Noone how they have in all times exercised it to the relief of all persons who stood in need of their relief even for things done within the Kingdome Where the Law had provided a remedy they applyed it Some times themselves would take the pains in Cases that deserved it where there was some thing extraordinary to move them to it and when they were at leisure from the more weighty and important Affaires of the Kingdom Some times they would send it down to the Inferior Courts to do it for them and give them Authority for it which they could not have done if they had not had it themselves for Nemo dat id quod non habet as in the Case of certaine Rioters 11 H. 4. N. 38. in the Exact Abridgement Whom they turned over to the Kings Bench and gave those Judges Authority to the end the busines where the Law had not provided there they would not meddle themselves and declared it so That none else neither should presume to meddle As upon the Petition of Martin Chamberlain in that 14 E. 2. p. 409. Who upon the suppression of the Knights Templers desired to be put into the possession of a mannor which the Templers whilest they stood had held of him The Answer is Quod non est Lex ordinata there was no Law ordained in the Case And because the Law had not determined how those Lands should be disposed of the Lords would say nothing to it But will it not be said that this makes good what the Commons objected against the Lords retaining this Cause of Skinners because some parts of it were not determinable in Westminster-Hall Whereas there being no Law concerning those points till there had been one made their Lordships should not have meddled with them As the Lords in that Parliament of E. 2. would do nothing in Chamberlains Case because the Law had not provided for it And as in those two Cases mentioned by the House of Commons That of an Inheritrix Forfeiting by her husbands default where as the Statute of Westminster the second expressed it a Durum est was in the Case And that of the Hospitall of St. Leonards 2 H. 6. N. 37. which had a clear Right to a Corn Rent Yet the Lords could not relieve them but both were faine to have Acts of Parliament This receives a twofold Answer One That there are other Motives in this Case to make the Lords retain it and give Skinner Relief Here is a poor man oppressed by a rich Company with whom he was no waies able to wage Law And that Consideration hath in all times prevailed with that House which is composed of Persons of generous and noble Spirits who can not see poor men oppressed without feeling in their hearts an Inclination and
a desire to relieve them But secondly we must distinguish between a Fact not being a Crime in the eye of the Law which is neither Malum in se nor Malum prohibitum and when the Fact it self being odious and punishable by all Laws of God and Man only a Circumstance as the Place where it was Committe dputs it out of the Power of the ordinary Courts of Justice to take Cognizance of it which are kept to formes and may not trangresse them In the first Case the House of Lords can not punish that for a Crime which the Law doth not make a a Crime but in the second Case God forbid there should be such a failer of Justice in a Kingdome that fellow subjects should robb and worry and destroy one an other though in Forrein parts and there should be no punishment for the wrong doer nor Relief for the party wronged when they come home For then the King might be deprived of many a good subject the Land loose many of her people Trading receive much prejudice and so King and Kingdome suffer great loss and all without remedy But then say the House of Commons Where the Law hath provided and there is an ordinary remedy an extraordinary ought not to be tryed to this the Lords Answer that their House is not an extraordinary remedy but the ordinary remedy in extraordinary Cases and this of Skinners was so both in point of difficulty and point of Compassion And to what is said That it is the Interest of all men in England to be tryed by Juries and there is remedy against willful Juries by Attaint but here is no remedy nor no Appeal It is Answered That the Court of Chancery disposeth of mens Estates without a Jury Every Court of Justice Every Judge in his Circuit sets Fines on mens heads upon several occasions without a Jury Many are tryed for their lives and their Liberties which is more then Estate in the House of Peers upon an impeachment of the House of Commons who are not a Jury nor are sworn therefore that Assertion holds not That all men in all cases are tryed by Juries And for matters of Appeal there doth lye one to the next Parliament or the next Session But it will be said That is to the same Persons And what hopes of any remedy For they wil make good their own Act To this is Answered It is what the Law of the Land hath established We must not be wiser then the Law It is what our Ancestors thought sufficient what hath been the practice of all time And if we leave Posterity in as good a Condition as our Ancestors left us they will have no Cause to Complain Then we must presume that Courts of Justice will do Justice and will do Right that upon better reason shewed upon the Appeal they will alter their minds and give an other Judgement They have done so heretofore How many Judgements of Parliament have been reversed by succeeding Parliaments And where there is Cause for it we must hope they will do so again Then where as it is said That the greatness of the Charge and the Inconveniencies of attending Causes in the Lords House is an Argument against their Judicature They Answer That it is not the House of Lords that appoints such great Fees to Counsel it being left to their Consciences that take them and to the will and discretion of their Clients who give them and who without an Act of Parliament to restraine it may give what they will or rather what they must However The Lords say that the charge in Chancery is greater there having been some times forty fifty Orders made in one Cause and the delay much greater so as some Causes have lasted there very many years And even at the Common Law how many Verdicts have been given in one Cause contrary Verdicts one for the Plaintiff an other for the Defendant Contrary Rules of Court the Judges give a Rule one day and three daies after give an other clean contrary As an Instance of it can be given but of last Trinity Term in the Kings Bench. These are Inconveniences that lye not in the House of Peers But admit there were Inconveniences Many Laws are found inconvenient which yet are put in execution and all obedience given to them whilest they stand unrepealed And the Question is not now of Convenient or Inconvenient but matter of Right Is it the Right of the House of Peers hath it still been the Custome and Usage of Parliaments and consequently the Law of Parliament that they should exercise such a Power of Judicature If it be so as it is and will be sufficiently proved then the point of Conveniency or Inconveniency is out of doors Well may it be a motive to alter it by the Law But we will play with them at their own Weapon and joyn Issue upon that point that the Inconveniency is but imaginary and so farr from an Inconvenience that it is the great advantage of the subject that it should be so As well to give relief in Cases otherwise unrelievable as to assist and help on the administration of Justice when sometimes the greatness and power of some persons would else bear down or much obstruct and hinder the Proceedings of Inferior Courts An objection also was raised How shall the Lords Judgements be executed after the Rising of the Parliament For so the subject may be deceived And when he thinks that with much Charge he hath made an end of his business he is never the nearer And it is Answered that the House of Peers is not as the House of Commons whose Orders are only of force whilest they are sitting they have power sufficient to require Obedience to their Judgements Nor hath it been knowen that ever any Judgement of the House of Peers was not submitted unto and obeyed till now in this Case of Skinners that the East-India Company stands out in defiance and refuseth all Obedience to it In 15 R. 2. N. 17. in the Case of the Abbot of St Oseches complaining against John Rokell for divers Embraceries and for not obeying an Order of the Duke of Lancasters made therein the Lords Confirme that Order and charge the Lord Chancellor to see Rokell perform it Why may not the Lords do the same still if they doubt of Obedience to their Orders But there was never question made of it before And there are many Presidents of Orders given to persons to act some thing in the Intervalls of Parliaments to give an account of it to the Lords at the next ensueing Parliament which shewes that their Authority stil continues to empower those persons to act and to execute their Orders even when the Parliament is risen 15 E. 3. N. 48. The Bishops of Duresme and Salisbury the Earl of Northamton Warwick Arundell and Salisbury are appointed to take the Answer of the Archbishop of Canterbury and to report it to the next Parliament And 51 E.
then Per Legem Terrae is all one with Per Legem Angliae or secundum Legem et Consuetudinem Angliae and what ever is done secundum Legem Angliae is done Per Legem Terrae And in his 1 Inst l. 1. c. 1. Sect. 3. He tells us what Lex Angliae is he saith there are divers Laws within the Realme of England and reckons them up Lex et Consuetudo Parliamenti is in the front of them He names many more the Civil Law by which the Court of Constable and Marshall and the Court of Admiralty and Ecclesiastical Courts do act the Law of War for the Court Martiall to act by the Law of Merchants the law of Stanneries Particular Customes in several places of the Kingdome Statute Lawes established by Authority of Parliament Whoever and whatever is tryed by any of these Laws be it for life Lands or goods it is still according to Magna Charta and though not Per Judicium Parium yet Per Legem Terrae The Law and Custome of Parliament is one of these and the Lords now acting agreeably to that act agreably to Magna Charta and that they have acted so is I think sufficiently proved all ready and will be further hereafter when we shew you Presidents for it from the beginning of Parliaments So for the other Statutes of the 25 of E. 3. c. 4. and the 42. c. 3. They do not at all concerne the House of Peers and were made only to prevent Vexation by Petitions and false accusations before the King and his Privy Counsel as appeares by the Preambles of those Statutes Though the Gentlemen of the House of Commons who managed the Conference were pleased to give them an other Interpretation and to say that the Petitions and suggestions to the King or his Counsel which are condemned by those Statutes are to be understood of those brought to the King and House of Lords But can it be rationally believed That the House of Peers of those times should themselves make so many Lawes pass so many Acts of Parliament five in the space of 17 years the 25 of E. 3. c. 4. the 28 c. 3. the 37 c. 18. the 38 c. 9. the 42 c. 3. all of them prohibiting that any man should be apprehended imprisoned or disinherited upon an accusation or suggestion to the King or his Counsel and enjoyning all Proceedings to be by Original Writ or by Inditement or by Presentment of good and lawfull People of the Neighbourhood And they know themselves to be intended by those Acts and yet still should act contrary to them judge and determine so many Causes both Criminal and Civil as they did from time to time Nay can it be believed That the House of Commons in those daies would bring up Impeachments against men to have them tryed at the Lords Barr if they did then conceive that those Acts of Parliament did forbid the Lords to meddle For though the Commons House are sometimes called the Grand Inquest of the Kingdome to present the Grievances thereof it is presumed they will not say that their Presentment is the Presentment intended by those Statutes For the Presentment mentioned there is the very description and true Character of your Country Juries The words of the Statute are The Presentment of good and lawful people of the same neighbourhood where such Deeds be done And can any man think that this is to be understood of the House of Commons No certainly What then is it that makes the Lords Proceedings upon the Impeachments of the Commons to be Legal and not contrary to those Acts of Parliament Since there is neither Writ nor Inditement nor Presentment and yet men are brought to tryal condemned and executed by their Judgements but only this that it is the Common Law of the Land being the Ancient unquestioned and undoubted Law and Usage of Parliaments And thereby is there a clear demonstration of the true meaning of those Statutes that it was the Regulation of the Kings Privy Counsel they aimed at and not of the House of Lords that Counsel of which Sir John Lee was one in that 42 of E. 3. n. 23. who was tryed and censured by that very Parliament in which that Act was made One of the Articles against him was That being of the Kings Counsel and Steward of his House be caused sundry men to be attached and and brought before him and made them answer singly to him as if it had been to the body of the Counsel He was fined for it and committed to the Tower The Lords John Nevil was likewise of this Counsel for misbehaving himself in it Judgment of Imprisonment and loss of Lands goods and Office was given upon him 50 E. 3 n. 34. And in the same Parliament n. 18. The Lord Latimer was accused for divers miscarriages being a Counsellor and for them he was by the Bishops and Lords committed to the keeping of the Marshall of England and adjudged to make Fine and Ransome at the Kings pleasure It is true he was enlarged presently by the Earl Marshall one Arch-Bishop three Bishops the Prior of St. John three Earls fifteen Barons and thirteen Knights being his Manucaptors but the Commons desired further that he might be no longer of the Kings Counsel which was granted And this was not to put him out of the Lords House for he continued still a Member there and had his Writ of Summons to come to the next Parliament in the 51 th year of that King There is nothing more clear then that those Statutes are all to be understood to mean the Privy Counsel and so did the two Houses of Parliament interpret them 3 Car. in their Petition of Right where the expression is That against the tenor of those Statutes divers were detained by his Majesties special command certified by the Lords of the Privy Counsel and one may bodly affirme that never any Statute or Act of Parliament did term the House of Lords the Kings Counsel So that Article of Magna Charta urged likewise at the Conference Communia Placita non sequantur nostram Curiam concernes not them neither It was to fix the Court of Common Pleas which as all other Courts was before that Ambulatory and followed the King where ever he was if he was in the Kingdome and the Writs were made returnable Coram nobis ubicunque fuerimus which was a great Grievance to the subject and cause of many discontinuances in sutes The following words clear it Sed teneantur in aliquo certo loco Now the place of the meeting of the Parliament was alwaies certainly known being expressed in the Writ of Summons which shewes it was not meant for them And whereas it was said That in Cases of Freehold there is no Proceeding without an Original Writ Scarse any that walkes Westminster-Hall but knows the contrary and the Course of Proceeding to be so fart otherwise as that not one Tryal for Land of forty comes on upon
by sickness or other occasion As 50. E. 3. n. 35. it is said The King ordains That from thenceforth no Woman should for Maintenance pursue Matters in the Kings Courts upon pain c. And then was the King sick at Eltham and could not come to Parliament as appears by n. 42. and it was only the House of Peers that made that Order So in Judgments though in Ancient Times they were mostly entred as given by the King yet it was the Lords House which was Curia Regis that gave them For we must know the KING hath a double Capacity of sitting in the House of Peers a Legislative Capacity when he hath in himself a Negative Voice to what even both Houses have concluded and done which signifies nothing without his Assent and his single Dissent makes it all null and void This is in passing Acts of Parliament and making of Laws The other is a Judicial Capacity when he will please to assist and be present at the ordinary Transactions of the House as heretofore was usual which alters not the Constitution of it as it is a Court gives it no more Power nor Jurisdiction then it had before he being then but in a manner as Chief Judge and not doing any thing singly but according to the Plurality of Opinions As when the Kings would in Person sit in the Kings Bench which they have in former times done where still all is said to be done Coram Rege though now he never come there and in Our Memory King James hath set in the Star Chamber I think no body will say the Star-Chamber then or Kings Bench before did or could vary from their ordinary Forms and Rules of Proceeding No more can the House of Peers alter their Proceedings or assume greater Authority by reason of the Royal Presence to take Cognisance of other Causes or do any thing which by the Custome and Usage of the House and the Law of Parliament it could not else have done But their Jurisdiction and their way of exercising that Jurisdiction is still one and the same And therefore 26. H. 6. n. 52. When the King had given a Judgment of himself without the advice of the Lords in the Case of William de la Pool Duke of Suffolk who stood impeached for Ireason banishing him the Realm for five years The Lords entred their Protestation against it as not done by their Assent and so no Act of the House And 5. H. 4. n. II. The Earl of Northumberland coming into the Parliament before the King and Lords and by Petition acknowledging to have done contrary to his Allegiance in giving of Liveries and gathering of Power for which he prayed pardon in regard he yeelded himself and came in to the King at York upon his Letters And the King delivering this Petition to the Justices to be considered The Lords made their Protestation That the Judgment appertained only to them And therefore as Peers of Parliament to whom such Judgement belonged in weighing the Statutes concerning Treasons and concerning Liveries they adjudged the Fact of the said Earl to be no Treason nor Fellony but only a Trespass finable to the King Whereupon the King received him into Grace and pardoned him his Fine All Power of Judicature in Parliament is then questionless in the House of Lords where the King alwayes is Personally or Virtually and the Judgment proceeds from them by the Authority and in the Name of the King For the Power of Judicature in Parliament is lodged in them together with the King as is declared 1. H. 4. n. 80. where it is said That the Commons were only Petitioners and that all Judgments appertain to the King and the Lords unless it were in Statutes Grants Subsidies and such like This hath ever been the Practice and Custom and Law of Parliament since there have been Parliaments and when this shall cease to be the Ancient way of Free Parliaments will cease likewise 1. R. 2. n. 30. Sir John de Cobham sheweth That by the delivery of a Ring of Gold for seisin to Edward the third he had setled the Reversion of several Mannors there named in the Crown and now prayes it may so remain according to his Intention divers Lords are examined the Judges Opinions are asked who declare it to be a good Livery and Seisin And so it is setled N. 32. William Fitzhugh a Gold-finer and Citizen of London exhibits a Bill of Complaint in the Name of the Cōmonalty of that Mystery against John Chichester and John Bolsham of the same Mystery for divers Oppressions done by them The Lords send for them examine them they deny those Oppressions And Fitzhugh refusing then to avow his Bill the Lords commit him to the Tower N. 35. Rober Hawley and John Shakell are by the Lords sent to the Tower for refusing to bring forth a Spanish Prisoner taken in Battel whom they had in their keeping and others laid claim to N. 41. Alice Perrers 〈◊〉 Pierce who bad been much in favour with Ed. 3. is questioned in the Lords House Sir Richard Scroope Lord Steward of the Houshold managing the Tryal for that contrary to an Order made by the King and Lords 50. Ed. 3. n. 35. That no Woman and she by Name should pursue any Matters by way of Maintenance upon Pain of perpetual Banishment and loss of the whole Estate She notwithstanding had perswaded King Edward to countermand Sir Nicholas Dagworth from going into Ireland when he had been ordained by the Council to go thither for urgent business which would have been profitable for the King and the Realm And an other Charge against her was for perswading the King to pardon Richard Lyons who had been Farmer of the Customs and for abuses and extortions had been censured in Parliament to forfeit his Estate and be committed to Prison she got all to be remitted and his Estate to be restored unto him even that part of it which the King had given to two of his own Sons for their lives The hearing of this Cause took up several dayes Many that had been Counsellors and Officers to the late King were examined as Witnesses At last she is found guilty and Judgment of Banishment and loss of Estate given upon her 3. R. 2. n. 24. The Case of the Earl of Pembrock and William le Zouch complaining of Thomas Roos for sueing them concerning Lands in Yorkshire and endeavouring to get a Tryall in the Countrey the Record is Desitant D'estre a Lissue du pays trop suspecieusement his desiring it being suspicious so they pray Que Ils partels Malueis Compassements Procurements en pais ne soient desheritez That they may not loose their Inheritance by such wicked practises and procurements The Lords upon this retain the Cause appoint some Persons to examine and report it But this President hath been cited before at large so I do but touch it here N. 22. Sir Philip Darcy complains That the Prior of St.
formerly given by the Lords Temporal alone with the Kings Assent is fully ratified and confirmed Which is as strong an Argument to evince and prove the Right of Judicature lodged in that House as is possible And so I shall leave that Pamphleter and now conclude only adding this as mine own sense and wish concerning the Lords exercising this Judicature and in truth what hath been my Observation of their Lordships own Intention and Resolution which themselves have still declared and practised in their execution of it which is this First That though they have an undoubted Right to such an universal unlimited Power of taking cognisance of all Manner of Causes of what nature soever and of the Judging and Determining them if no particular Law do otherwise dispose of those Cases Secondly That their Ancestors have so exercised this Power in all times Ancient and Modern which conveys down that Right to them according to the Maxim usus Consuetudo est Lex Parlamenti what hath been alwayes used by Parliaments is the Law of Parliaments Thirdly That this House of Lords hath ever been careful not to entertain any business which was determinable in Inferior Courts so as charged with doing it they may well take up the Psalmists complaint and say They have laid to our charge things that we knew not and would have us restore what we took not away Though if the Lords had now taken upon them to exercise such an universal Power of Judicature they had medled but with their own that which belongs to them and had done no man wrong had given no just cause of complaint they had but troden in their Ancestors steps continued that in the House of Peers which it hath ever been possessed of And would it not be a shame for them to leave their Posterity in a lower and more curtalled condition then their Predecessors left them to give up a Right and a Priviledge oâ— theirs which as hath been shewed iâ— so necessary to the Publick Justicâ— of the Kingdom But they have noâ— done that which is said of them Anâ— there is no colour for any complaint Why then quarrel with them Why at this time stir a question which lay asleep and for ought we know had never awaked not had else ever been stirred Is this a time to divide to cause needless differences Were it not more desirable nay more necessary to reconcile affections to unite endeavours and to conjoyn the Counsels and Power and Authority of the two Houses of Parliament for composing the differences which already are rather then to create new and especially when no cause is given for it For it may be truly said Here is not Causa litigandi if there be not Animus litigandi Let it be calmly and coolely considered what the Lords have done if they have given any cause of difference if this Apple of Dissention grew with them which hath been maliciously cast in by some of the East India Company and too readily taken up by those whom they had surprised and abused by misinformations Their Lordships have now only done Right to a poor man that was oppressed to ruine by potent Adversaries who had done the wrong in a Forreign Countrey and so were no wayes punishable for it here in the ordinary Course of Law nor the poor man any wayes relievable for no part of his Case as hath been shewed was within the Compass of the Common Law Their new devise of a Fiction which is in truth meerly a Fiction in the whole of it without any real foundation in Law Reason or good Conscience as being grounded upon a falshood and yet this Fiction I say such as it is not applicable to Trespasses so as here had been an absolute Failer of Justice if the Lords had not undertaken it And they undertaking it also not of themselves as making it their own Act but upon the Kings earnest Recommendation when his Majesty and Counsel had in vain spent some years in endeavouring to perswade those severe Adversaries of this poor man to make him some reasonable Reparation and they would not Fourthly And notwithstanding all this that their Lordships should be quarrelled with decried misrepresented by Offenders whom they had before them and that even before they had determined any thing concerning them yet the Petition of those Offenders full of Falsities not onely to be received which under Correction and with great respect be it spoken of them who did receive it was a Manifest Breach of Priviledge but to be believed and Votes to be passed thereupon That the Lords had done that which was not agreeable to Law and which tended to deprive the Subject of the benefit of the Law Fifthly Though these things might well provoke their Lordships to vindicate themselves not only by asserting their Right to so great and extensive a Power which they have done upon good grounds and with evincing Argaments but even employing and exercising it in its full latitude And the same Maxim would justifie them in their so doing which the Poet brought to justifie Caesar in his vast undertakings when the Senate by denying him his just demands gave him the occasion and the boldness to make himself Master of all take that which was denied him and all the rest which happily he had else never attempted the Maxim is Omnia dat qui justa negat So quarrelling with the Lords now upon so unjust a ground and denying them such an apparent Right as they had to give Relief to Skinner would plead their excuse to all the World if they should extend their Power as far as their Ancestors ever did But we will hope better things from them and that as the Apostle saith their Moderation shall appear to all men and that no ill usage will make them depart from their resolution of not interposing their Power where the Law can give a remedy nor entertaining any Cause which is properly determinable in Inferior Courts For that certainly however it might be Lawful would not be expedient and good men will onely do that which is expedient as being that which is most acceptable to God and most beneficial to men which Parliaments will I hope ever do It shall be my Prayer they may to which I am sure all good people will say Amen FINIS