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
from the Ships worth and other particulars in a Schedule would have rendred alone above 20000 l sterling yearly Yet I submit that and my whole Sufferings and Concerns to your Lordships Determination in hopes That if I do not receive an adequate Recompence yet I shall by his Majesties Grace and your Lordships direction be enabled by the restoring of my Island Barella in India to reap a future benefit without the East India Companies further molestation or interruption His Majesties late Charter granted the third of April 1661. prohibiting the Company expresly to undertake any thing against any Christian Colonie setled in India before the date thereof October the 6. 1666. Signed Thomas Skinner THe Lords Referrees finding this vast disproportion between the demands and Pretences of the Petitioner and the real loss and damage which he had sustained and the Offers on the other Side of the Company for his Reparation and Satisfaction and seeing no possibility of reconciling them though much pains had been taken in endeavouring it at last resolved to report it back to the King and Councel and made their Report as followeth IN pursuance of his Majesties Order in Councel dated the three and twentieth of March last we have treated with the Governor and Company of Merchants trading into the East Indies and have heard the Councel both of the said Company and Thomas Skinner Complainant in the disquisition whereof we found the said Thomas Skinner to have suffered much wrong by the said Company and their Agents and therefore endeavoured to perswade the said Company to give satisfaction to the Petitioner but there being a great difference between the Petitioners Demands of Reparation for Damages and the Companies Offer towards the same our Mediation proved ineffectual therein As to the Island of Barella in the East-Indies claimed by the said Thomas Skinner We conceive that he ought to enjoy the same and from thence to trade into any part of the world except into England Given under Our Hands the sixth day of December 1666. Signed Gilb. Cant. Clarendon C. J. Roberts Ashley HIs Majestie upon this finding the East-India Company would be brought to no reason thought fit to recommend the business to the House of Peers to do the Petitioner Justice according to the merits of his Cause which Message was brought to the House the 19. of January 1666 by the Lord Privy Seal and all the Proceedings in Councel transmitted thither and withall a Petition from Skinner himself was presented to them setting forth the wrongs done to him by the East-India Company The House of Peers thus possessed of this business Order a Copy of Skinners Petition to be given to the Governor and Company and they to bring in their Answer to it upon Friday the 28 of January They accordingly bring in for Answer a Plea to the Jurisdiction of the House of Lords and say That the Petition is in the Nature of an Original complaint not brought by way of Appeal Bill of Review or Writ of Error nor intermixed with Priviledge of Parliament nor having Reference to any Judgement of that Court therefore offer If it will please to take any further Cognizance of that Cause And then plead over and say That the Company was incorporated by several Charters in the Reignes of Queen Elizabeth and King James and likewise by a Charter from Oliver which excluded all others not Members of the Corporation from trading in any part of the East-Indies within the limits of the said Charter and that therefore if any such Injuries were done it was by vertue of the Charter and whether Criminal or Civil they were for ever released and discharged by the Act of Oblivion The Lords upon debate of this Plea well knowing their own Right to retain even Original causes when accompanied with such Circumstances as this then before them had A poor man oppressed by potent Adversaries by a rich and numerous Society where there was a Peer of the Realm the Lord Berckley of Berckley Gentlemen of great Estates very many wealthy Merchants incorporated in one body driving on a great trade in the Indies with one joynt stock resolved to imploy that whole stock for the destruction of any man that should presume but to touch upon that trade without their leaves which was this poor mans Case in a time when he had been encouraged thereunto by a general Liberty then taken to trade in that Country who after the spoyle of his goods and Plantation there to save his life they having beset his passage by Sea was glad to expose himself to the hazard and charge of a Journey of many thousand Miles over Land to return into England that he might here endeavor to get some reparation for all those losses which that Company with their great purse and power opposed and had already made him spend that little Estate he had left and seven years attendance to prosecute that reparation without any fruite So as to go to Law with them and abide all the delayes and formalities even of the ordinary Proceedings at Law much less what such Adversaries would have raised to him he was no waies able The Lords I say knowing all this and that what was pretended of the Indemnity by the Act of Oblivion was of no validity that Act not at all intended for things of this nature betwixt party and party not relating to the Warr made no difficulty to over-rule their Plea and enter into the disquisition of the Fact and to do the poor man Justice and give Releife if they found cause for it as a work worthy of them much conducing to the administration of the publick Justice of the Kingdome and most agreable to the constant practice of that House from the very beginning of Parliaments Wherefore they appointed Tuesday the 24 of January for the Counsel of both sides to be heard at the Barr. But such art was used so many delayes cast in by the Company and their Counsel as the cause could not be brought to hearing during all that Session of Parliament At the next meeting of the Parliament in the year 1667. Skinner renued his suit and presented a Petition the 30. day of October In haec verba TO THE RIGHT HONOURABLE c. The Humble Petition c. THat in the year 1657. Private Trade being open in the East-Indies the Petitioner set forth his ship Thomas on a trading voyage to the said Indies where being arrived in 1658 he possessed himself of a Ware-house on the River side of Jamby on which his ship rode wherein he put a great part of his goods and also had a house at Jamby and goods therein and purchased of the King of Jamby the Island of Barella and built a house for habitation and had contracted for planting of Pepper and other Commodities thereon That in May 1659. the Agents of the Governour and the Company of Merchants of London trading into the East-Indies by direction of the said Governour
House your Petitioners do therefore most humbly pray That your Honours will be pleased to take the Premisses into your grave Considerations and to interpose with their Lordships for your Petitioners Relief therein in such way and manner as to your great Wisdoms shall seem meet And your Petitioner as in duty bound shall pray c. Signed by the Order and in the Name of the said Governour and Company Robert Blackborne Secr. Copies of this flew about were in every mans Pocket and in every mans mouth That the Lords were even forced to take notice of it yet scarce could believe the House of Commons would receive such a Petition against them so scandalous and so false nor did they in the whole debate so much as mention the House of Commons but looked upon it as a thing done without doors thrown abroad only to blast and asperse the House of Lords and to bring them into the ill opinion and dis-esteem of the people which after a serious consideration and debate their Lordships voted To be a scandalous Libel against the House of Peers And certainly so it was both in Matter and Manner and had the Matter been true yet the Manner was scandalous For though all had been true which was suggested if the House of Lords had committed an Error had done some thing grievous to the Petitioners yet was it most unfit for private men to censure their Proceedings declare them to be unusual and extraordinary to be against the Laws and Statutes of the Nation and Costome of Parliament grievous to the Petitioners at present and of ill consequence hereafter to all the Commons of England Can the tongue of man utter more reproachful and stabbing words against any man or society of men If this were true do they deserve to live who are guilty of such things to continue so much as Members of any State or Common-wealth much less to have Power and Jurisdiction in it Certainly to revile in this manner and throw dirt upon the Highest Judicatory of the Kingdome was a most transcendent Presumption and of a most dangerous Consequence to the whole Nation even to those Commons of England whom these Petitioners pretend for so much making themselves as it were their Patrons and Protectors Tribunes of the people and withall endeavouring to bring an Odium upon the whole Peerage What is this but sowing sedition between the two Houses of Parliament and between the Peers and the Commons of England And what can it tend to but to the very dissolution of the Frame of Government The Scripture saith Thou shalt not speak evil of the Rulers of thy People and Elihu in Job moves this question Is it fit to say to a King Thou art wicked and to Princes Ye are ungodly Yet these Rabshakehs dare heap up Reproaches against the Lords of Parliament and bring railing Accusations against the Highest Order of Magistracy under the King in the Kingdom And how little Cause was given them for this the preceding Narrative of the proceedings of the Lords is I think an evident demonstration Their Lordships had proceeded with all the tenderness imaginable nothing of heat nothing of Precipitation had appeared in the whole Transaction They were not come to a full Conclusion and Determination of the business which these Merchants had no reason to suspect that it would be severe upon them And they might at least have staid till it had come what ever it had been and not have prejudged a Court before it had declared it self what Judgment it would give All it had then done was but what the East-India Company it self had by their own offer of Reparation for the wrong done acknowledged to be Just For the Lords had only declared That Skinner was fit to be relieved But what relief how much and in what sort the Quid and the Quomodo they had not determined that was under the Consideration of a Committee They themselves in their Answer to the Lords Referrees appointed by His Majesty in Counsel had offered to pay unto Skinner for Nutmegs White Pepper and some other things which had been unjustly taken from him by their Factors and had been brought to their account 3160 Dollars And 1521 Dollars more they offered for so many taken from him in Specie And by this they confess they had done him wrong and were willing to give him some Reparation So without condemning themselves they can not say the Lords had as yet done amiss and notwithstanding all this moderation and Circumspection that opprobrious railing Petition was preferred against them and which besides was full of untruths For the main matter in it and which in truth had carried a shew of Injustice had it been true is absolutely false And that is that the Lords denied them a Commission or time to send for Witnesses inhabiting upon the place without whose testimony it was impossible for them to make their defence First it is not true that the Lords denied them a Commission or time to send for Witnesses for they never insisted upon it which must have brought on a Resolution of the house and have been entred in the Clerks Book which was not Some such thing was once said by some of the Councel at Barr but themselves went off it knowing it would have grosly manifested their intent to delay longer a Poor man who had already spent seven years in the prosecution of that suit And as untrue is it that they could not else make their defence for multitudes of Witnesses were produced by them and all fully heard with Patience and enough acknowledged even by their own Witnesses and more by their own offer formerly mentioned of giving Skinner so many thousand Dollars Reparation which they had then declared which was only That Skinner should be relieved A second untruth is That they say all the matters complained of were clearly determinable in the ordinary Courts of Justice excepting what concernes the Iland whereas it appears there was likewise a dwelling house at Jamby and a Ware-house by the River-side of which they dispossessed him which were not so determinable even by the report of the Judges in their Opinion but in truth one may say no part of the Complaint was so determinable they say untruely then in saying there was only the Iland that he could not be relieved in and as untruely do they vouch the Opinion of the Judges for it who expresly mention the House as well as the Iland A third untruth is to say the Iland was parcell of the Dominions of a Foreigne Prince and the Right to it only determinable by the Laws of that Prince Whereas that Prince had made an absolute bargain and sale and a Totall Alienation of it from his Dominion and so had put it out of the Protection of his Laws A fourth and which they had inserted to be a Baite to draw on the House of Commons to espouse their Quarrel is that they suggest the complaint to be concerning Commoners
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.
Johns of Hierusalem sues him in Chancery for the Mannors of Temple-hurst and Temple-newsom which Ed. 3. had granted to John Darcy his Father and produces a Deed shewing that the Priors Predecessor had passed the Fee of them to Ed. 2. The Lords order that Deed to be sent to the Treasurer and Barons of the Exchequer to examine the Kings Title and in the mean time stop Proceedings in Chancery This is more then taking Cognisance of a Matter Originally for they take it out of one Court where it depended and was undetermined and send it to be examined in an other Court which shews the Ascendant they had upon all other Courts 4. R. 2. n. 17. Sir Ralph de Ferriers had been seised by the Duke of Lancaster upon the Marches of Scotland upon suspicion of Treason for holding Intelligence with the French the Kings Enemies upon some Letters of his to several French Lords found and taken up by a Begger He was brought into Parliament before the Lords and put to his Answer He first desired Counsel then offered the Combate against any that would acouse him both were denyed him Then he applyed himself to his Answer And after several dayes hearing the Lords still remanding him to Prison he so well defended himself That the Lords suspected the Letters to be forged and therefore committed the Begger and bayled Sir Ralph delivering him to his Manucaptors 5. R. 2. n. 45. The Chancellor and University of Cambridg Petition against the Major Bayliff and Commonalty of the Town for breaking up their Treasury burning their Charter and by force compelling them to make Releases of some Actions they had brought against the Town and enter into Bonds to them for great Summs The Lords direct a Writ to issue out to the Maior and Bayliffs to appear in Person and the Commonalty by Atturney They appear The Chancellor exhibits Articles against them They being asked why their Liberties should not be seised plead to the Jurisdiction that the Court ought not to have cognisance of them They are told Judgment should be given if they would not answer Then they answer and the business is heard The Townsmen are ordered to deliver up those Deeds forced from the University which are presently cancelled The Town Liberties are seised into the Kings hands and part of them granted to the University Some are granted back to the Town for which they were to pay an increase of Rent Note here is a Plea to the Jurisdiction and that Plea Overruled 8. R. 2. n. 12. The Earl of Oxford complains of Walter Sibell of London for a Slander in having to the Duke of Lancaster and other Noble-men accused him of Maintenance The Lords hear the business Commit Sibell to Prison and give 500 Marks dammages to the Earl 9. R. 2. n. 13. The Case of the Duke of Lancaster complaining That Sir John Stanley had entred upon the Mannor of Latham which held of him and had not sued out his Livery in his Court of Chancery The Lords order him to sue out his Livery But this hath been already mentioned 15. R. 2. n. 16. The Prior of Holland in Lancashire complains of a Riot committed by Henry Trebble John Greenbow and others and of an Entry made by them into the Parsonage of Whit wick in Leicestershire John Ellingham the Serjeant at Arms is sent for them who brings them into the Parliament The Lords commit them to the Fleet. N. 17. The Abbot of St. Oseches complaineth of John Rokell for Embracery This Case hath been already cited N. 18. Sir William Bryan had procured a Bull directed to the two Archbishops to excommunicate some that had broken up his House and carried away Writings This was read in Parliament and adjudged to be prejudicial to the King and to be in Derogation of the Laws for which he is committed to the Tower N. 20. Thomas Harding accuseth Sir John Sutton and Sir Richard Sutton and layeth to their charge that by their Conspiracy he had been kept Prisoner in the Fleet Upon hearing of both Parties for that the two Knights were known to be men of good Fame The Lords adjudge him to the Fleet. N. 21. John Shad well complains against the Archbishop of Canterbury for excommunicating him and his Neighbors wrongfully for a Temporal Cause appertaining to the Crown and to the Laws of the Land The Lords hear the business find the Suggestions untrue and commit him to the Fleet. 1 H. 4. n. 93. Sir William Richill one of the Justices of the Common-Pleas who by express Order of Ri. 2. went to Calais and took the Examination and Confession of the Duke of Gloucester after murdered by Hall was brought a Prisoner into the Lords House the King present and by Sir Walter Clopton Chief Justice apposed And answered so fully shewing his sincere dealing that the Lords one by one declared him innocent And Sir Walter Clopton pronounced him such 4 H. 4. n. 21. The Case of Pontingdon and Sir Philip Courtney where the Lords direct the Tryal appointing what the Issue shall be and what kind of Jury shall be impannelled to prevent Sir Philip 's practices in the Country It hath been cited before at large 1. E. 4. m. 6. n. 16. The Tenants of the Mannor of East-Maine belonging to the Bishop of Winchester the King being in his Progress in Hampshire in the Summer-time complained to him of their Bishop for raising new Customs among them and not suffering them to enjoy their Old ones The King bids them come to Parliament in Winter and they should be relieved They come and the King recommends their business to the Lords They commit it to certain Justices to examine Upon their Report and upon mature Deliberation it was adjudged That the Tenants were in fault That they complained without cause and they were ordered to continue their said Customs and Services Here observe there was the recommendation of the King in the Case just as now in Skinners and this difference that a question of Custom betwixt Lord and Tenants was properly determinable by the Common Law and a Jury of the Visenage and this of a Trespass in the Indies to be punished in Parliament or no where which justifies the Proceedings there 43. Eliz. the 18th of December A Complaint was made to the Lords by the Company of Painters against the Company of Plaisterers for wrong done them in using some part of their Trade Their Lordships referred it to the Lord Maior and Recorder of London to be heard examined adjudged and ordered by them Which was all one as if they had done it themselves For it was done by their Authority and by their Order Qui facit per alium facit perse 18. Jac. The Lords took notice of the Proceeding of the House of Commons in the Case of one Flood whom they had convented before them for insolent and scandalous words spoken by him against the Prince and Princess Palatine examined Witnesses and given Judgment in the Cause
redress what was amiss and punish those that had offended All the Presidents shew it so to have been and not one no not one to the contrary 5. H. 4. n. 74. The Commons Petition That all such Persons as shall Arrest any Knight or Burgess of the Commons or any of their Servants and know them so to be do Fine at the Kings Will and render treble Damages to the Party grieved The Answer is There is sufficient remedy for the Cause Which remedy it seems was That the King and Lords would set them at Liberty which was as they conceived sufficient For 8. H. 6. n. 57. Among the Petitions of the Commons one is That William Lake Servant to William Mildred Burges for London was Arrested and carried to the Fleet upon an Execution and they pray he may be delivered according to the Priviledge of their House It is granted but withal Authority is given to the Chancellor to commissionate Persons to apprehend him again after the Parliament 39. H. 6. n. 9. The Commons complain by Petition to the King and Lords That Walter Clerck one of their Members Burgess for Chippenham in Wilts had been Outlawed and put in Prison and pray That by the Assent of the King and Lords he may be released Which was granted and their Member set at Liberty 14. E. 4. n. 55. The Commons among their Petitions bring up one of a Member of theirs William Hide Burgess likewise for Chippenham being taken in Exeoution for Debt and a Prisoner in the Kings Bench praying he may be delivered by a Writ of Priviledge out of the Chancery the which is granted with this saving That bis Creditors may renue their Execution after the Parliament 17. E. 4. n. 36. At the Petition also of the Commons the King with the Assent of the Lords Spiritual and Temporal grants That John at Will Burgess for Exceter condemned in the Exchequer during the Parliament upon eight several Informations at the Sute of John Taylor of the same Town shall have as many Supersedeas therefore as he will until his coming home after the Parliament One memorable Case of this Nature must not be omitted which hapned 31. H. 6. n. 25 26. c. Thomas Thorp Chief Baron was Speaker of the House of Commons and in an Interval of Parliament the Parliament being upon a Prorogation he had been Arrested and carried to Prison at the Duke of York ' s Sute who had got a Judgement against him in the Exchequer upon an Action of Trespass for carrying away the Dukes Goods from Durham-House The Parliament meeting the House of Commons send up some of their Members to make Complaint to the King and Lords That their Speaker was a Prisoner and desire his Release The Duke of York gives the Lords an account of the business They ask the Judges Opinion in the Point The Judges Answer was in these words It hath not been used before time nor becomes it us to determine matters concerning the High Court of Parliament which is so high and mighty in its Nature that it is Judge of the Law and makes that to be Law which is not Law and that to be no Law which is And the Determination of its Priviledges belongs to the Lords in Parliament and not to Justices But to declare the Use in Lower Courts they said That as Writs of Supersedens of Priviledge of Parliament were brought unto them concerning any particular Member of Parliament who had been Arrested so it were not for Treason Felony Surety of the Peace or for a Condemnation before Parliament they did alwayes release him that be might freely attend the Parliament After which Answer made It was by the Lords Spiritual and Temporal agreed assented and concluded That the said Thorp should remain in Prison notwithstanding his being Speaker of the House of Commons or any other Priviledge of Parliament And they Ordered the same to be declared unto them that were come from the Commons by Walter Moyle a Serjeant at Law because it was Matter of Law but in the presence of the Bishop of Ely and many other Lords And then the Bishop of Ely was to charge them in the Kings Name to chuse an other Speaker This was accordingly performed And the House of Commons did chuse an other Speaker Sir Thomas Charleton in the place of Thomas Thorp and sent some Members to acquaint the Lords with it and the Lord Chancellor answered The King likes him well It is to be noted That the King lay then sick at Windsor and yet all is done in the Kings Name as if he had been present These Presidents shew That the House of Commons did not in those times exercise any Jurisdiction nor themselves lay any punishment upon those that broke their Priviledges and that the Sheriffs and Bayliffs of London in that Parliament of 34. H. 8. were the first who felt any effects of their Justice in that kind Nor after that did they constantly put that Power in Execution and for some time it seems they absolutely waved it For the very next year the 35th of H. 8. One Trewinnard a Burgess for Cornewall had been imprisoned at the suite of one Skewis and was delivered onely by a Writ of Priviledge But Skewis not sent for by the Serjeant at Arms to be committed and punished by the House as the use is now So far from that That the Executors of Skewis in the Trinity term of the 36th of H. 8. brought their Action of Debt against Chamond the Sheriff of Cornewall for the Escape but were cast in their Sute and the Priviledge allowed as Dyer mentions it in his Reports p. 59. And in the 18th of Queen Elizabeth a Servant of one Mr. Hall a Member of the House being Arrested upon Complaint made to the House it was referred to a Committee to consider of the Business and how he should be released who made their Report That it could be only by a Writ of Priviledge as appears by the Journal of that Parliament And there is some reason to believe That they never or very rarely sent for by their Serjeant or medled with the Persons of such as broke their Priviledges by arresting or misusing their Servants and Attendants till 43. Eliz. For I find in a Journal of that Parliament which I have by me That a Complaint being made to the House How a Servant of one Mr. Cooke a Member of the House was arrested that President was urged of the 34th of H. 8. And it was said that the House had committed the Sheriffs of London and the Bayliffs for abusing their Serjeant and for arresting of Ferrers Whereupon it was then resolved and ordered That the Serjeant attending the House should go to Newgate and bring away both the Prisoner and his Keeper and likewise command the Bayliff who made the Arrest and the Person at whose suit it was made to appear before the House This was done the Prisoner discharged and the Bayliff and he who
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
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
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