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A86467 The grand question concerning the judicature of the House of Peers, stated and argued And the case of Thomas Skinner merchant, complaining of the East India Company, with the proceedings thereupon, which gave occasion to that question, faithfully related. By a true well-wisher to the peace and good government of the kingdom, and to the dignity and authority of parliaments. Holles, Denzil Holles, Baron, 1599-1680. 1669 (1669) Wing H2459; ESTC R202445 76,537 221

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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
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
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.
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
their Misdemeanors and wrongs done to Skinner and in adjudging them to give Skinner Reparation for it The 3d President was that of william de Valentia and Isabell de Mareschal in which the Lords observed the dismission to have been only ad proesens But withall observed that the bare reading of the Case in the Book will satisfy one of the Jurisdiction of the Peers to retaine such Causes It sayes That William de Valentia had at the fore going Parliament been Ad querelas Isabellae le Mareschall allocutus et ad rationem positus impleaded and put to Answer by what right he assumed such an Office and such Power in the Hundred of Hosterelegh and that he then alleged he did it in the Right of his Wife and that it being his Wifes Inheritance he ought not to be put to answere without her Ita quod datus fuit dies ei ad hunc diem ad Parlamentum Domini Regis viz. a die Paschae in ires Septimanas And then his Wife and he appeared by their Atturney and after pleadings The Judgment is Quia praedicti Willielmus Et Johanna sunt in seisina de praedicta Jurisdictione et de Haeredicate ipsius Johannae per descensum haereditarium et non per Usurpationem seu Purpresturam c. Consideratum est quod eant inde sine die quoad praesens Et Dominus Rex habeat Breve si voluerit c. The Lords knew they had Jurisdiction else they would have dismissed the Cause the Parliament before and not have adjourned it to the next Parliament upon that ground to make the Wife a Party as we see they did And whereas the Commons had upon this President observed that if there had been Crime in the Case as Usurpation or Purpresture then they acknowledged that in such Cases the House of Lords did usually proceed and try them but withall added That if that were the question much might be said how the Constitution of Government hath been since altered So as they soon retracted their admittance of but so much of the Lords Right and what they had given with their right hand they would soon take again with their left But first for their Concession of Judging Crime the Lords say that suffices for their Jndemnity as to what they have done in this particular Case of the East-India Company and Skinner for here is Crime sufficient and Usurpation and Purpresture taking them in the larger sence for invading any other mans Right and not only where the King is concerned as those termes are taken some times And then for the Qualification of their Gift upon the Change and alteration of the Government The Lords Answer That when they shew the Time when that alteration was made and the Persons by whom and the Manner how if Legally done they shal then believe submit and not till then But they never heard of any thing that till now so much as looked that way except that Vote of the Assembly called the Rump which declared the House of Lords useless and dangerous and therefore to be abolished and taken away and by a Clubb Law they did take it away But even they that passed that Vote and did make that Clubb Law thought the Judicature necessary and fit to be continued for they immediatly assumed it to themselves and fairely voted themselves into that Power by the Name of the Commons of England the very same Title that the East-India Company do now make use of in their Petition to the House of Commons To the 4th of Roger de Somerion prosecuting for the King and complaining of the Prior of Buttele for unjustly withholding from the King the mannor of Somerton And the Judgment upon it Ideo praedictus Priot quo ad hoc eat inde sine die ad praesens The Lords say it is but a Temporary dismission as the others were and signifies nothing as to the point of Jurisdiction And they wish the Commons would have pleased to cast their eye upon the ensuing Case in the same leafe of William de Valentia again and of him upon the same occasion concerning his Wifes Inheritance as formerly where there is not a Dismission of the Cause as formerly but a determination of it and that determination again referred unto and confirmed by a suceeding Parliament to shew that the House of Lords sometimes would and sometimes would not Judge and determine such causes as were brought before them That Case was thus William de Valentia Complaines of the Lords of the Counsel for admitting during the Kings absence beyond the Seas one Dionisia a pretended Daughter of William de Monte Caniso Tenant to the King of Lands held in Capite and formerly enjoyed by her Father in his life time Whereas his Wife was true Heire to that William and the Land belonging to her The Lords of the Councel justifie what they have done say that Dionisia was notoriously known to be the true Daughter of that William and that the Bishop of Winchester in whose Diocess she was born testified it The Judgment is Ideo videtur domino Regi quod praedictus Comes Thesaurar Alij de Consilio bene et rité processerunt It is not now sibi perquirat per Breve de Cancel They do not referr him to the Chancery as they did in the other Case This was in 18 E. 1. In 20 E. 1. p. 103. he comes again to Parliament and renues his Complaint and that Judgment given before is confirmed the words are these et de alijs Petitionibus suis viz. De hoereditate Willielmi de Monte Caniso petenda et etiam quod procedatur juxta Bullam quam jidem Williemus et Johanna impetrarunt ad inficiendum Processum perquod Dionisia filia proedicti Willielmi Legitima censebatur alias eis responsum fuit viz. in Parliamento post Natale Domini Anno 18. ut patet in Rotulis ejusdem Parliamenti Ad quam Responsionem se teneant c. Nothing can be clearer then the continual practice of this Jurisdiction in the House of Lords whensoever they pleased Not that it hath alwaies pleased them to trouble themselves with exercising this Jurisdiction their time having been so taken up some times with businesses of a higher Nature that they could not attend it so as many times they have tyed up themselvesby an Order of the House not to receive any private business As in the Close Roll 18 E. 1. There is a memorable Order to that purpose I will set it down at length in the very words which are these Pur ces Ke la gent Ke venent al Parlement le Roy sunt sovent destaez et destourbez a grant grevance de eux e de la Curt par la multitudine des Peticions Ke sunt botez devant le Roy de quevx le plus porreient estre espleytez par Chanceler et par Justices purveu est Ke tutes les Petitions Ke tuchent le sel vegnent primes al
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.
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
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 o● theirs which as hath been shewed i● so necessary to the Publick Justic● of the Kingdom But they have no● done that which is said of them An● 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