against Henry late Earl of Northumberland and Tho. Bardolph late Lord Baron for certain ill deeds which they had lately committed contrary to their Allegiance At their meeting the Constable of England shewed them the Process made in the Court of Chivalry against Henry de Peircy upon the Articles of Treason committed by him and others of his Covyn In which Articles are named the Arch-Bishop of York Tho. Newberry Earl Marshal the said Earl of Northumberland the said Lord Bardolph and many others and their several Treasons are therein contained The Lords having advised therein and considered the proofs delivered their opinion to the King touching the said Earl of Northumberland and the said Lord Bardolph only and proceeded to Judgment against them Then the King caused to be demanded of the Lords Temporal Peers of the Realm what they would say touching the Act of the said late Arch-Bishop of York and of the said Earl Marshal who lately with a great multitude of people were armed and trained in the field within the Realm of England with Banners displayed c. Unto which demand the said Lords Temporal said That according to the Information to them given by the said Constable It seemeth unto them to be Treason yet notwithstanding the Lords desired that with good deliberation when they next returned to the Parliament they might speak thereof unto our Lord the King as no error might be found in their doings in time to come This was done on that day the Parliament was adjorned Here the Lords had no other Accusation against those two Peers but the Kings commandment upon view of former Process against them in the Court of Chivalry And the Lords declared their opinion touching the Archbishop of York and the Earl Marshal though their Treasons were contained in the same Process also least Error might be found in their doings hereafter But whether they thought their Error to be that the King had not commanded them first to advise thereon touching the said Archbishop and the Earl Marshal as he had done touching the others Let the Reader Judge For my part I think that would have been error Could the Lords proceed upon Process elsewhere unless the King commands them 2 H. 6. The Judgment against John Mortimer is drawn up very briefly by John Hales one of the Justices of the Kings Bench wherein he first shews that the said Sir John Mortimer was Indicted in London sitting the Parliament before the Lord Mayor of London and other Commissioners appointed by the King For that the said Sir John being committed to the Tower for suspition of Treason corrupted his keeper and broke Prison That the said Indictment was returned into Chancery Ex mandato Dom. Regis and by the Chancery brought into the Parliament before the Duke of Gloucester the Kings Protector and the Lords Temporal the King being then an Infant And the Protector being Authorized by Commission to hold the Parliament de Precepto Dom. Regis That the said Sir John Mortymer by Vertue of the Writs was brought before the said Duke and Lords and Commons That the said Commons affirmed the said Indictment to be true and desired Judgment against him as convict of Treason and Felony And lastly That he was thereupon adjudged In this is set down all the essential parts of the Lords proceedings against Mortymer The Ceremonious or formal parts thereof are omitted as who complained of or accused Mortymer to the Parliament The King or the Commons did not for then there needed no Indictment And therefore it must move for the King either before the Indictment or rather upon the Return thereof unto the House For had the Accusation been before the Indictment it had been a shorter way to Arraign him also before the Commissioners in London he being no Member nor Peer of Parliament then to return the Indictment into the Chancery and then be brought into the Parliament Here is also omitted the Conference before hand between the Lords and Commons touching this matter For it is very unlikely that the Lords did suddainly send for the Commons and then abruptly read the Information before them and they as suddainly affirm the same all these are necessarily understood That the Commons affirmed the Indictment e. It appears that the Lords cannot of themselves Judge a Common Person for an Offence for he is no Peer according to that of 4 E. 3. Numb 26. The manner of Accusation by Information Ex parte Dom. Regis is when the Commons as any other private Person accuse any man unto the Lords in general but do not declare the Offences in particular other then by the Commandment of the King Articles are drawn up against the Delinquent Ex parte Dom. Regis The Precedents are these 2 R. 2. The Constable of the Tower was commanded to bring Gomeniz and Weston whose Offences were complained of in general by the Commons that they named before the Lords in Parliament to Answer to the Articles objected against them on the behalf of the King and they were severally arrained at the Commandment of the Lords c. Eodem anno Alice Pierce being complained of by the Commons was accused and commanded to come before the Lords in Parliament to Answer to certain things objected against her on the Kings behalf And here upon Sir Richard le Scroope Chief Steward of the Kings House by Comandment of the Lords rehersed in Parliment in the presence of the said Alice a certain Ordinance c. Made in the Parliament of 50 E. 3. against her And this Rehersal being made the said Steward surmised unto the said Alice That it seemed to the Lords of the Parliament that she had incurred the pain comprised in the said Ordinance in certain points and especially in two That is to say c. By these two Precedents it appears plain enough that the Lords commanded the Articles to be drawn and exhibited though ex parte Dom. Regis for all these are said to be done by their Commandment And the practise at this day is that out of the Complaints of the Commons as of Mompesson The Lord Chancellor and the Lord Tresurer and a Committee of the Lords did draw up the Charges But they wanted the words Ex parte Dom. Regis The reason why in this Cause the Articles are Ex parte Dom. Regis seemed to be this The Commons complain but impeach not Notwithstanding the Impeachment the Lords cannot proceed neither can they Impeach any to themselves So it rests that the party is to be Impeached at the Kings Suit It may be lawful for me to examine the proceedings of the Lords in the Complaint against Mompesson and to compare them with ancient Proceedings in like Cases And they will appear to differ much And touching Mompesson the Commons did not only complain but accuse him He fled in his absence they ought to have proceeded to Judgment against him before Proclamation first made for him to appear before the
Precedents mention the King's Assent in Capital Judgments except that one against Matrevers 4 E. 3. which might be the omission of the Clerks who drew up the Roll for it is said directly afterwards in the said Bill Numb 6. That the Peers gave those Judgments in the presence of our Lord the K. and by his Assent And except that of 1 R. 2. against Weston in the last Day of the Parliament and it was 3. in the Afternoon that Day before the Lords had determined what to do in that Business so that it may be the Lords were prevented of time herein to have which they respited Execution for that the King was not informed of the manner thereof Secondly For that the Lords Appellants 11 R. 2. who had then great Forces about them were so earnest with the King for his Assent to the Judgment against Burley That the Duke of Gloucest told him as appeareth by his own Confession 21 R. 2. That if he would be King he should not intreat for Simon de Burley to save him from Death And in the end when his Majesty would not assent to their Judgment yet they wrought so that Messengers were sent unto him and brought word not before they gave Judgment against Simon and the King's Assent is mentioned in the said Judgment All which the said Lords would not have done had not the King's Assent been necessary And afterwards in the Parliament of 21 R. 2 The Lord Cobham being accused for giving Judgment without the King's Assent answered That the Messenger brought word That his Majesty had assented And yet because he did not gainsay that the King did deny his Assent the Commons immediately demanded Judgment All which seem to imply That the King's Assent is necessary in Judgments upon Capital Offences Touching the Second viz. Judgment against the King 's Will. It is all one with Judgment without the King's Assent Touching the Third viz. In the Absence of the King The Judgments of this kind are good notwithstanding so as the King doth assent as that of Simon de Burley 11 R. 2. Touching the Absence of many of the Peers That is to say of many of them and against their will This cannot invalid their Judgment so as the greater number of the Lords be then present accompting the Proxies of the absent Lords for it is not material whether some Lords do absent themselves or disassent The chiefest Matter is the Assent of the Lords who are present either in Person or by Proxy The others are to Answer for their Absence without a just Cause shewn or a proper Assent § 2. In Judgment on Misdemeanors the King's Assent is not required 50 E. 3. The Lords judged divers Commoners for Misdemeanors and the King's Assent not mentioned as Richard Lyons William Lord Latymer a Privy Councellor John Lord Nevil a Privy Councellor Jo. Peecher and others The King was then sick at his Mannor of Eltham and on the last day of the Parliament the Lords Prelates and Commons came before him there and he heard the Petitioners and their Answers for most part read and also Judgment given on the Privy Councellors and others dont ils se leyron franchement le respons de mesme nostre Seignior le Roy Numb 15. Which shews that the King had not assented to them 7 R. 2. The Bishop of Norwich was accused of Misdemeanors and judged in 10 R. 2. The Lord Chancellor Mich. de la Poole was judged by the Lords for Misdemeanors and Speed fol. saith That the King was much displeased thereat for it appeareth he gave not his consent And it was one of the Questions demanded of Tresilian and others 11 R. 2. Whether the Judgment were erroneous or not and resolved to be erroneous yet it was not objected against any the Lords Appellors that the Judges proceeded without the King's Assent §. 3. The King's Presence in Parliament In 4 E. 3. The King commanded the Lords to do right and lawful Judgment on Mortimer The which Earls Barons and Peers having examined the Articles came again before the King and said c. Ibidem The King commanded them to give Judgment on Simon de Bereford The which Earls Barons and Peers came again before the King and said c. And so the King was present at their Judgment but not at their Consultations 10 R. 2. The King was present when the Commons accused the Lord Chaneellor William de la Poole of Misdemeanors but he was not present at his Trial for he demanded if he ought to answer sans presence de dit Roy being Chancellor and in the end he answered notwithstanding 21 R. 2. In the cruel Parliament of the Lords Appellants the King was present at the Parlies Non constat whether he was present at the Consultation of the Lords 5 H. 4. The King was present when the Earl of Northumberland was to be tried upon his own Petition and so were the Commons And the King delivered the Petition to the Judges for their Opinion but the Lords claimed their Right But this was on the Wednesday and the Friday following the King and Commons met there again and the Chancellor rehearseth First What was done the first Day and the Lords having had competent deliberation on the said Petition and having heard and considered the Statute They adjudged c. It is plain the King was not present at this Consultation of the Lords though at their Judgment 7 H. 4. He commanded the Lords to advise what manner of Process shall be made and what Judgment shall be rendred against Henry de Peircy Earl of Northumberland and a Week after the Lords declared their Opinion to the King And it appeareth in that Roll very clearly that all Evidences and Examinations were shewn and taken by the Lords in the absence of the King and their Advice also agreed on in his Absence but the Judgment reversed in his Presence To conclude The King may be present if he please at the Parties Answer in Capital Causes and at the Judgments given prout c. But he was never present at other times of Proceeding against the Delinquent nor at any Answer for Misdemeanors for ought I have yet seen §. 4. The Presence of the Lords Spiritual In Cases of Misdemeanors the Lords Spiritual have ever been present but never in Offences Capital This is so generally-received of all men that it is not worth the Labour to prove it yet I will vouch the Precedents For it may be out of one or other of them somewhat may occur worthy the Observation In Misdemeanors In 1 R. 2. Alice Peirce was brought before the Prelates and Lords in Parliament to Answer and the Prelates and Lords did ordain 42 E. 3. Numb 20 c. John at Lee was put to Reason before the Prelates Lords Dukes Earls Barons and some of the Commons 7 R. 2. Jo. Cavendish accused the Lord Chancellor of Bribery before the Prelates and Lords in
Declaratio Judicium Per quod cousider atum fuit in praesenti Parliamento per praedictos Dominos tunc ibidem existentes de assensu dicti Domini Regis quod praefatus nunc Comes nihil capiat per Petitionem aut Prosecutionem suam praedictam Et ulterius tam Domini Spirituales quam Temporales praedicti Judicium Declarationem praedictam versus dictum Johannem quondam Comitem Sarum ut praemittitur habita sive reddita de assensu ipsius Domini Regis asserunt fore esse bona justa legalia Et ea pro hujusmodi ex abundanti decreverunt adjudicaverunt Out of the last recited Precedent of 2 H. 5. may be observed That the Temporal Lords by Assent of the King may give Judgment on Offenders for capital Crimes and therefore Whereas it is said 2 H. 4. That the Judgment belongs only to the King and Lords that is herein explained The King's Assent ought to be to Capital Judgments and the Lords Temporal to be only Judges therein and not the Lords Spiritual But in Misdemeanors the Lords Spiritual and Temporal are equal Judges and the King's Assent is not necessary as shall appear §. 2. In what Cases the King's Assent is necessarily required Touching the King's Assent it is expressed in divers Judgments on Capital Offences 4 E. 3. against Mortimer Anno eodem against Simon de Bereford And there be divers other Judgments that year of this Nature wherein the King's Assent is not expressed but against John Matrevers Les Judices Peeres de la terre Judges de Parlement adjudgent agardant que le dit John be drawn hanged c. not mentioning the King's Assent And there are two other Precedents of the same Nature briefly Recorded Estre ou tiel Judgment est accorde que soit sait de Burges de Bayons John Dever And Item outiel Judgment est accorde de Tho. de Gurney W. de Ogle not mentioning by whom the said Judgments of Death were given 2 H. 4. The Judgment against the Earl of Salisbury and others for Treason is by the King's Assent and so is the Judgment of H. 4. against the Earl of Northumberland and 11 21 R. 2. upon those several Appeals In all which the King's Assent is recorded And so the Articles objected against Simon de Burley without the King's Assent and against his will which I shall here recite Item The aforesaid Dukes Earls of Arundel and Warwick Anno 50 E. 3. Richard Lyons pleading a Warrant from the King which he could not shew followeth thus c. And Tho. Mortimer continueth his traiterous purpose and by force of men took and imprisoned divers men your Liege c. Amongst others Simon de Burley Knight and him they carried in the Parliament at Westminster held the Morrow after the Purification of our Lady in the 11th year of your Reign and there were surmised against him divers points of Crime and Treason and thereupon was demanded of every Lord there present in Parliament his Advice of the said Simon touching the said Crime And afterwards the said Dukes and Earls of Arundel and Warwick would know your Advice Thrice Redoubted Lord. You answer plainly That the said Simon de Burley was not guilty of any the said Points and then they took upon them traiterously to have constrained you to have given your Assent to the Judgment which they have purchased against the said Simon upon the Points aforesaid And you Thrice Redoughted Lord would not consent to any Judgment to be given against the said Simon And yet notwithstanding the aforesaid Dukes and Earls took upon them Royal Power in prejudice of you and derogation of your Crown and without your Assent and against your Will and in your Absence and in the Absence of many other Peers of Parliament and without their Assent and against their Will awarded that that said Simon should be drawn c. and thereupon caused him to be beheaded but traiterously against your Crown Peace and Dignity This I have recited at large Unto which the Duke of Gloucester made no Answer being dead before the said Earl of Arundel pleaded the King's Pardon which was not allowed him The said Earl of Warwick confessed all the Articles in the said Appeal and put himself upon the King's Grace and the said Tho. Mortimer could not be found This Parliament begun at Westminster Die Lunae post Festum Exaltationis Sanctae Crucis and was adjourned to Shrewsbury And on Tuesday 28 January the Parliament there shewed unto the King how that they in the said Parliament at Westminster had accused and impeached John de Cobham in the 11th year of the King's Reign with others convicted in this Parliament accroaching to himself Royal Power in Judgment Awarded that the Lieges of the King Simon de Burley and James de Barners Knights should be Drawn Hanged and Beheaded without Assent of the King and against his will and in his absence and in the absence of many other Peers of Parliament who with held themselves and would not sit in such Judgment and against their will traiterously against the Peace of the King his Crown and Dignity And prayed our Lord the King to cause the said John de Cobham to joyn in this present Parliament to answer to the things aforesaid and to ordain such Judgment against the said John de Cobham as the Cause demands The said Jo. de Cobham was brought c. And touching the said Judgment awarded against the said Simon and James the said Joh. de Cobham said That it was told him by them who were present then That it was the King's Will to make such Judgment against the said Simon and James convicted of the said Judgment and Award which he had so given against the said Simon and James notwithstanding his Answer Whereupon c. Judgment was given against him and he adjudged a Traytor Here is objected That the Judgment against Simon de Burley was given by the Lords without the King's consent Secondly Against his Will Thirdly In the King's Absence Fourthly In the Absence of many of the Peers and against their wills Touching the First viz. The King 's not Assenting It may be Objected That the Lords gave Judgment against Weston 1 R. 2. without the King's Assent but yet not against the King's Will for they respited the Execution until the King might be informed thereof And the Reason then given for the said Respite was For that the King is not yet informed of the manner of this Judgment But whether the Lords proceeded to that Judgment against Weston before they informed the King because the King's Assent is not necessary or for that it being the last Day of the Parliament they had no leisure to inform his Majesty thereof let the Reader judge yet it seemeth to me that the King's Assent is necessarily required in Capital Causes and Judgments for these two Reasons First For that all