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
his Father deceased And that a Statute of 1600 l entred into by the said Thomas Bagshaw to John Gell Esq shall be discharged and made void And that Thomas Bagshaw shall make a Release to the said Edward of all Debts and Demands The sixteenth of June 41. The Lord Audley Complains by Petition That the Lord Cottington kept from him the Mannor of Fonthill and prayed Relief therein Upon hearing Counsel on both sides the Lords dismissed the Petition The twenty third of June 41. The Committee for Petitions Reports That Mistris Walter had preferred a Petition setting forth That William Walter her Husband will not permit her to cohabit and dwell with him nor allow to her and three Children any thing for their support The Lords Order her to repair to her Husband and offer to live with him and if he shall refuse to admit her that then he shall allow her 60 l per annum for her Maintenance The 21 th of July 41. A Petition was exhibited before the Lords by sundry Officers and Clerks of the Court of Common Pleas shewing That the disposing of the Offices of Protonotaries Phitizers Exigenters and other Offices of the said Court had time out of mind belonged to the Chief Justice of that Court for the time being but several Grants and Patents had been obtained from his Majesty for the disposing of the said Offices and therefore they prayed That all those Grants and Letters Patents might be recalled The Lords heard Counsel upon it and after mature deliberation declared That the said Offices do of Right belong to the disposition of the Lord Chief Justice of the Common Pleas And the Grants formerly made by Letters Patents of the said Offices to be Illegal and void And Ordered the said Patents to be brought into the House There is likewise in the Journal Book of that Parliament mention made of a Petition of one Thomas Smithick preferred the tenth of June 1641. Complaining of wrongs sustained from the East India Company and likewise of a Petition from the East India Company full of Respect and Submission to the House of Lords and praying a longer day then it seems was appointed for hearing the Merits of the Cause which the Lords granted and Ordered all such Books Certificates and Writings as were in the Custody of the Company concerning that business should be produced and Smithick to peruse and take Copies of them What was more done upon this Petition of Smithicks appears not by the Journal Book probable they compounded the business among themselves But however it is observable the different Spirits of the East India Company then and of this now The Modesty of that and the Carriage of this so far differing In those times no question was made of the Power of the Lords in point of their Judicature nor no Complaint against their practice of it Yet we see the frequency of it in Causes of all Natures Criminal Civil Mixt between King and Subject between Subject and Subject no Protection no Priviledge did exempt any body from their Jurisdiction The Lords at the Conference as they said to the Gentlemen of the House of Commons were the more Copious in the enumeration of these later Presidents especially those of 1640 and 1641. not that they thought themselves at all to stand in need of them the antient ones before produced shewing the usage all along from the very first and best times which in their Lordships Opinions were of much more weight sufficiently convincing but the House of Commons having a little before at an other Conference delivered it for a Maxim That the later Presidents were best and having accordingly insisted upon one single President of the same Parlialiament of 1640. to Oblidge the House of Lords to commit a person upon a general Impeachment of Treason without special Matter shewn and opposing that one President to what their Lordships alleadged to the contrary and made appear to have been the usage of all former times no Record being of any Man ever sent to Prison by the House of Peers without a particular Crime expressed in the Impeachment of some Act done by him before the Earl of Strafford which was the President stood upon This made the Lords heap up so many Examples of the Proceedings of their House in that Parliament of 1640. in the point of Judicature to use it as Argumentum ad heminem and what the House of Commons could no wayes except against themselves having declared it to be of greatest Authority Until Henry the Eights time the very House of Commons was to be beholding to the House of Lords for their Administration of Justice even concerning their Members as the only Judges and Conservators of their Liberties and Priviledges Themselves could not before that have punished any one that had never so much offended them So far were they from exercising a Power of Commitment or of inflicting any punishment for Crimes at large and against the Laws of the Land where neither the Offence nor the Offender had particular relation to their House as in these later times hath been often practised by them But as I say the first time that ever they punished any and it was for breach of Priviledge was in the Parliament 34 H. 8. in the Case of George Ferrers Burgess for Plimouth who was arrested and put in the Counter The House informed of it sent their Serjeant to demand their Member not so much as to summon Sheriff or Bayliff that made the Arrest or Party at whose suit it was made and less to bring any of them as Delinquents to the Bar as now a dayes nor could they obtain that But their Serjeant coming to the Counter found resistance the top of his Mace was broken off his Man knocked down and he glad to get off without the Prisoner So back he comes to the House yet sitting and makes his Complaint They presently all rise with their Speaker come up to the House of Lords and the Speaker makes the Complaint to Sir Thomas Audley Lord Chancellor sitting on the Wooll-sack The Lords judge the Contempt to be very great and refer the punishment of it to the Order of the House of Commons Then indeed they return to their House and send for the Sheriff of London the Clerks of the Counter all the Officers there that had a part in the fray with their Serjeant one White at whose Sute Ferrers was Arrested and the Bayliffs that did Arrest him all to appear personally before them at eight of the Clock next Morning and when they came they sent some of them to the Tower some to Newgate where they continued till they were delivered at the suite of the Lord Major We do not find that before this the House of Commons committed any body no not for the Breach of their Priviledges nor were themselves so much as Judges of the Elections of their Members but were fain to come up to the Lords and pray their aid to
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
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
of these several Offenders But admit they had particularly impeached every one of them which is more then to desire such a Delinquent may be brought to his Tryal and that the Lords would do Justice on him as they find Cause and much more then onely to design the Crime and leave it to the Lords to find out the Persons For in an Impeachment they examine the matter and first find themselves the Party to be guilty and then they follow it against him and prove him so before the Lords Doth this at all give them any part in the Judgment or must it not necessarily be understood that the Judicature is naturally and constantly lodged with the Lords and the House of Commons part then is onely to bring the Offender before the Lords to be tryed This very Record of the Proceedings in the Lords House against Gomeniz and Weston shews it so to be and proves the Judicature of the House of Peers as strongly as can be It runs thus Item par la ou supplié est par les Communes que tous ceux qunt rendus perdus Chatels ou Villes par dela par uray defaut des Capitaines puissent estre a Response a Cest Parlement selon leur desert fortement punis par agard des Seigneurs Baronage eschievant le malueis ensample qils ont donnez as autres qui sont Gardeins de villes Chatels Commandé est a Sire Alein de Buxhall Conestable del Tour de Londres qe y face venir deuant les Seigneurs en Parlement a Westminster le Vendredy 27 Jour de Novembre lán susdit Jehan sire de Gomeniz William de Weston c. Item Whereas it is prayed by the Commons that all those who have delivered up and lost Castles and Towns on the other side of the Sea by their own default being Captains of them may be put to their answer at this Parliament and according to their desert be severely punished by the award of the Lords and Baronage for the eschewing of the evil example which they have given to other Guardians of Towns and Castles Command is given to Sir Allen de Buxhall Constable of the Tower of London to bring before the Lords in Parliament at Westminster upon Friday the 27th of November of the aforesaid year John Lord of Gomeniz and William of Weston c. Here the Commons desire that all such may be severely punished by the award of the Lords and Baronage So it is their Award and their Judgment must punish and this by the Commons confession And you may observe further that the Commons do not make any mention of any particular Person but the Lords they command Sir Allein de Buxhall to bring Gomeniz and Weston before them such a day But it is easie to trace the Author of the Pamphlet where he was led out of the way and that was by an other Pamphlet of the Priviledges of the Baronage which goes under Mr. Seldens Name but hath as many mistakes in it as leaves and there indeed it is said p. 15. That at the supplication of the Commons that all those who have rendred Castles be put to their Answer and that Allen Buxhall Constable of the Tower do bring before the Lords such a day Gomeniz and Weston to answer the Articles which there shall be preferred for the said Cause they were so brought c. But the Record it self you see is otherwise which that Pamphleter it seems never read And for what he further would infer to make that and all other Judgements at the prosecution of the Commons admit they had been so which these were not Acts of Parliament is a Fancy so ridiculous as it is not worth the answering which makes no difference betwixt an Act of Attainder that passeth both Houses and afterwards hath the Kings Assent as all other Laws have which is an effect of the Legislative Power in which either House hath an equal Vote and a proceeding before the Lords against a Criminous Person in a Judicial way wherein the Commons have nothing to do as to the judging of him But one thing more in that Pamphlet I cannot let pass which is in p. 12. The words are these viz. For the Kings giving Judgment in Parliament with the Lords Assent I do confess Judgements there ought to be properly and punctually entred as given Par nostre Seigneur le Roy que est Souverain Juge en tous Cas par les Seigneurs Spirituels Temporels ouel Assent des Communes de la Terre ou a leur Petition Nenny par les Seigneurs Temporels Seulement That is As given by our Lord the King who is Sovereign Judge in all Causes and by the Lords Spiritual and Temporal with the assent of the Commons of the Land or upon their Petition and not by the Lords Temporal alone And for this he quotes in the Margent Rot. Part. apud Leicester II. 16. which he delivers so Magisterially as any man would swear he had good Authority for what he said and that his old French was some old Oracle of Parliament And I must confess upon the first reading of this I was at a stand finding here such a positive Precept contrary to what I had still believed both in the Affirmative it must be by the Kings and Lords with the Assent of the Commons and Negative not by the Lords alone But when I came to examine this Assertion by the Record I found there was a foul mistake whether purposely or ignorantly I judge not For what was delivered by Counsel to bolster up his Clients pretentious is there produced as the Rule of the Court And an Error assigned to reverse a former Judgment which is but the Allegation of a Lawyer that draws up his Clients Plea is made an Argument to controul and condemn a constant usage of the House of Peers It was in the Case of the Earl of Salisbury Who brought a Writ of Error in the Parliament 2. H. 5. to reverse the Judgment given 2. H. 4. n. 30. by the Lords Temporal alone with the Kings Assent by which Judgment the Earls of Kent Huntington and Salisbury and some others who had been some slain some taken in actual Rebellion by other the Kings Subjects and by them put to death without form of Law were declared attainted of Treason and their Estates forfeited For the reversal whereof Thomas the Son Earl of Salisbury amongst the Errors assigns this for one as a principal one that it was given by the Lords Temporal alone with the King whereas it should have been by the King Lords Spiritual and Temporal with the Assent of the Commons or at their Petition And what follows upon this Indeed if the Judgment had been reversed though perhaps upon some other Error for several others were assigned there might have been some colour for the Gentlemans Assertion and the Inference he would make upon it But so far from it that the Judgment
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-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
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