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
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
it is but seemingly as will be shewed upon the Examination of the Presidents themselves Whereas multitudes were produced of the exercise of their Jurisdiction and some Where the parties had desired a try all at common Law and the Lords would not grant it as that of William Paynell and Margaret his Wife in the Placita Parliamentaria of the 30 of Ed. 1. p. 231. The Case was this Margaret had been formerly the Wife of John Cameys and he yet living bad left him as she alledged with his consent and lived with Paynell as his Wife and was married to him Cameys dying Paynell and she sue for the Thirds of the Mannor of Torpell which had been the Land of Cameys It was objected on the other side That she lived in Adultery with Paynell in Cameys life time and so had forfeited her Dower They upon that desire to be tryed by their Country if Adultery or no What say the House of Peers Do they send them into the Country as is desired No Videtur Curiae quod non est necesse contra tantas tamque manifestas Evidentias Praesumptiones Probationes c. ad aliquam Inquisitionem Patriae Capiendam procedere c. Et ideo consideratum est quod praedicti Willielmus Margareta nihil Capiant per Petitionem suam sed sint in Misericordia pro falso Clamore c. This shewes that the Lords some times would retain Causes though sometimes they did dismisse them not for want of Jurisdiction but as it seemed to them convenient and their Occasions would give leave as they had or had not leasure for it from the greater Affaires of the Kingdome or that some Circumstances in the merits of a Causemade it more or less worthy of their Consideration As if one of the parties was powerfull in his Country and suspected to have an Influence upon the Juries the Lords would then some times retain a business and determine it themselves As in 3 R. 2. N. 24. The Case of John Earl of Pembroâ—k and William le Zouch Complaining that they were sued for certain Lands in York-shire by Thomas the Sonne of Sir Robert Roos of Ingmanthorp and alledge That the said Thomas sought to come to a tryall in the Country which he had gained and corrupted And therefore pray for redress and a tryall by Parliament giving this reason for it Que Ils par tels Malveis Compassemens et Procuremens en pais ne soient desheritez That they may not lose their inheritance by such wicked contrivances and practises in the Country Do the Lords then suffer it to go on to tryall in the Country No They take the matter into their own hands appoint John Knevet and John Cavendish Chief Justice and John Belknap Chief Justice of the Common Pleas to examine it and make Report to them which they did And so likewise in the Case of Pontyngdon and Courtney 4 H. 4. N. 21. Sir Phillip Courtney a great man in the Country oppresses Pontyngdon dispossesses him of his Land by force he comes to the Lords praies Pur Dieu Et en oeuure de Charite d'ordeigner remedies en cell Cas For Gods sake and as a work of charity that they would give remedy in this case Setts forth in his Petition that he had before in a Parliament held at Winchester made his complaint at which time Sir Phillip laid the Bastardy of his Father as a Barr and that the Lords Answer then was That he should have right done him and committed the business to the Arch-Bishop of Canterbury to take care of it That before the Arch-Bishop Sir Phillip and he agreed to go to a tryall upon that Issue and that there should be a sufficient Jury of the principal Knights and Esquires of the Country But that Sir Phillip had named some of those principal men and withall poor men of less sufficiency to the intent that the great men making default the poor should stand and that these poor men durst not against Sir Phillip maintain the truth les queux poures hommes n'oisent envers le dit Sir Phillip la verite dire That thereupon he Petitioned again the Lords in the next Parliament sitting at Westminster and informed them of all these Particulars whereupon they Ordered a Writ to go to the Judges of Assize of that Country commanding them to admit none to be of the Jury but such as had 40 l a year Land and those to be chosen out of the whole Country notwithstanding any usage or Challenge to the Contrary But that now Sir Phillip finding that the charge of Bastardy would not hold contriving still the wrongful disinherison of the Petitioner had started a release unduely gotten from one Thomas Pontyngdon a Parson whose heirethe Petitioner is And the Petitioner is thereby like to be ruined si il neit vostre tres Hautissime et tres excellent secours et aide if the Lords would not afford him their most High and excellent succour and help This was the effect of the Petition The Lords upon this make an Order to direct the tryall the Point in Issue to be the Bastardy that the Release should be laid aside as null and void that if the Bastardy be proved Pontyngdon shall be for ever barred to sue hereafter and if not proved but that his Father was Mulier he should then recover the Land with Costs and damages And they further Order a Writ to the Sheriff to Impannell none of the Jury that had not 40 l per annum Land So then three several times in three several Parliaments did the Lords take Cognizance of this Cause being a Common Plea for a mans Free-hold and that Originally in the first Instance not upon an appeal or Writ of Error or any of those waies to which the House of Commons would now limit them They direct the tryall the Issue the Condition and Qualification of the Jury and the Judgment and if this be not taking Cognizance of a Cause I know not what is And well was it for that poor Gentleman That the Lords had that Jurisdiction that they could take Cognizance of his Cause to give him relief then As now it was well for Skinner That the Lords took Cognizance of his Otherwise this powerfull Company had trampled him in the dirt and ruined him as that violent man Sir Phillip Courtney for so he appears to have been by several Complaints against him in the Parliaments of those times had served Pontyngdon And well will it still be for many a poor man to have such an Asylum such a City of refuge to fly unto to save himself from the violence and Oppression of power and greatness And perhaps some of those who now endeavour to lay low the House of Peers who would make it to be of no signification to have no power no Influence upon the Kingdome be as salt that hath lost its Savor only Magni Nominis Umbra a Name of Peerage without ability to help themselves or
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
formerly given by the Lords Temporal alone with the Kings Assent is fully ratified and confirmed Which is as strong an Argument to evince and prove the Right of Judicature lodged in that House as is possible And so I shall leave that Pamphleter and now conclude only adding this as mine own sense and wish concerning the Lords exercising this Judicature and in truth what hath been my Observation of their Lordships own Intention and Resolution which themselves have still declared and practised in their execution of it which is this First That though they have an undoubted Right to such an universal unlimited Power of taking cognisance of all Manner of Causes of what nature soever and of the Judging and Determining them if no particular Law do otherwise dispose of those Cases Secondly That their Ancestors have so exercised this Power in all times Ancient and Modern which conveys down that Right to them according to the Maxim usus Consuetudo est Lex Parlamenti what hath been alwayes used by Parliaments is the Law of Parliaments Thirdly That this House of Lords hath ever been careful not to entertain any business which was determinable in Inferior Courts so as charged with doing it they may well take up the Psalmists complaint and say They have laid to our charge things that we knew not and would have us restore what we took not away Though if the Lords had now taken upon them to exercise such an universal Power of Judicature they had medled but with their own that which belongs to them and had done no man wrong had given no just cause of complaint they had but troden in their Ancestors steps continued that in the House of Peers which it hath ever been possessed of And would it not be a shame for them to leave their Posterity in a lower and more curtalled condition then their Predecessors left them to give up a Right and a Priviledge oâ— theirs which as hath been shewed iâ— so necessary to the Publick Justicâ— of the Kingdom But they have noâ— done that which is said of them Anâ— there is no colour for any complaint Why then quarrel with them Why at this time stir a question which lay asleep and for ought we know had never awaked not had else ever been stirred Is this a time to divide to cause needless differences Were it not more desirable nay more necessary to reconcile affections to unite endeavours and to conjoyn the Counsels and Power and Authority of the two Houses of Parliament for composing the differences which already are rather then to create new and especially when no cause is given for it For it may be truly said Here is not Causa litigandi if there be not Animus litigandi Let it be calmly and coolely considered what the Lords have done if they have given any cause of difference if this Apple of Dissention grew with them which hath been maliciously cast in by some of the East India Company and too readily taken up by those whom they had surprised and abused by misinformations Their Lordships have now only done Right to a poor man that was oppressed to ruine by potent Adversaries who had done the wrong in a Forreign Countrey and so were no wayes punishable for it here in the ordinary Course of Law nor the poor man any wayes relievable for no part of his Case as hath been shewed was within the Compass of the Common Law Their new devise of a Fiction which is in truth meerly a Fiction in the whole of it without any real foundation in Law Reason or good Conscience as being grounded upon a falshood and yet this Fiction I say such as it is not applicable to Trespasses so as here had been an absolute Failer of Justice if the Lords had not undertaken it And they undertaking it also not of themselves as making it their own Act but upon the Kings earnest Recommendation when his Majesty and Counsel had in vain spent some years in endeavouring to perswade those severe Adversaries of this poor man to make him some reasonable Reparation and they would not Fourthly And notwithstanding all this that their Lordships should be quarrelled with decried misrepresented by Offenders whom they had before them and that even before they had determined any thing concerning them yet the Petition of those Offenders full of Falsities not onely to be received which under Correction and with great respect be it spoken of them who did receive it was a Manifest Breach of Priviledge but to be believed and Votes to be passed thereupon That the Lords had done that which was not agreeable to Law and which tended to deprive the Subject of the benefit of the Law Fifthly Though these things might well provoke their Lordships to vindicate themselves not only by asserting their Right to so great and extensive a Power which they have done upon good grounds and with evincing Argaments but even employing and exercising it in its full latitude And the same Maxim would justifie them in their so doing which the Poet brought to justifie Caesar in his vast undertakings when the Senate by denying him his just demands gave him the occasion and the boldness to make himself Master of all take that which was denied him and all the rest which happily he had else never attempted the Maxim is Omnia dat qui justa negat So quarrelling with the Lords now upon so unjust a ground and denying them such an apparent Right as they had to give Relief to Skinner would plead their excuse to all the World if they should extend their Power as far as their Ancestors ever did But we will hope better things from them and that as the Apostle saith their Moderation shall appear to all men and that no ill usage will make them depart from their resolution of not interposing their Power where the Law can give a remedy nor entertaining any Cause which is properly determinable in Inferior Courts For that certainly however it might be Lawful would not be expedient and good men will onely do that which is expedient as being that which is most acceptable to God and most beneficial to men which Parliaments will I hope ever do It shall be my Prayer they may to which I am sure all good people will say Amen FINIS
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
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
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
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