that Judgment 21 H. 6. against Sir Jo. Mortymer upon an Indictment of Escape out of Prison being committed upon suspition of Treason the said Mortymer's Answer is not recorded yet it is said he was brought before the Lords and the said Indictment read in his presence that he made an Answer unto it though not mentioned And this proves that the Party is to be brought to his Answer else Mortymer's presence had not been necessary Anno 7 R. 2. Numb 2. The Duke of Lancaster and Gloucester complained to the King That Sir Tho. Talbot with others conspired the Death of the said two Dukes and prayed the Parliament to judge thereof The Fact is judged High Treason and Writs sent to divers Sheriffs to apprehend him which Writs were retornable into the King's-Bench And upon Proclamation made in Westminster-Hall That upon the Sheriffs Return and the not-Appearance of the said Thomas he should be convicted of Treason and forfeit c. This was extraordinary in terrorem But what may not the whole Parliament do They may alter Law much easier than Form In the Answer is to be considered First In what Causes the Party is to answer as a Prisoner and in what as a Freeman Secondly When Councel shall be allowed him and when not Touching the First The Parliament hath guided their Proccedings therein secundum Legem terrae Judicium Parium According to the 2th Chapter of Magna Charta Nullus liber homo capietur vel imprisonetur c. nisi per legale judicium Parium suorum vel per legem Terrae And therefore in Causes Capital whether the Party accused be a Lord of the Parliament or a Commoner he is brought a Prisoner to his Answer secundum legem terrae prout 4 E. 3. Numb 1. c. The Lord Berkley accused by the King for Murder of E. 2. Anno 1 R. 1. Jo. Lo. Gomeniz and W. Weston Upon the Demand of the Commons for surrendring Forts beyond the Seas An. 4. R. 2. Sir Ra. Ferrers Knight was apprehended for suspition of Treason Anno 28 H. 6. Although the Lords refused to commit the Duke of Suffolk upon the Commons complaint of him of a common Fame of Treason yet when they accused him of particular Treason he was Committed and brought Prisoner to his Answer But in Cases of Misdemeanors it is otherwise then the Party accused whether Lord or Commoner answers as a Freeman The Lord within his Place the Commoner at the Bar and they are not committed till Judgment unless upon the Answer of a Commoner the Lords find cause to commit him till he find Sureties to attend c. lest he should fly prout Jo. Cavendish upon the Lord Chancellor's Demand of Justice against him for his false Accusation was Committed after his Answer until he put in Bail Anno 7 R. 2. And before Judgment And so Michael de la Poole the said Chancellor 10 R. 2. after his Answer and many Replies of the Commons was Committed and presently Bayled Anno 50 E. 3. William Lord Latymer and John Lord Nevill being impeached by the Commons answered in their Place so did the Bishop of Norwich and the Lord Chancellor 7 R. 2. And the said Lord Chancellor too 10 R. 2. answered in his Place though afterwards he was committed before Judgment upon Request of the Commons The Bishop of Bristol 1 Jac. and the Duke of Buck. 1 Car. 1. All these answered as Freemen in their Places their Offences not being Capital And the like Precedents there are of Commoners Anno 50 E. 3. Richard Lyons William Ellis and John Beecher did answer as Freemen being impeached by the Commons And whereas the Commons did that year also accuse Adam de Bury who was absent the Lords sent for him to come but he contemned their Authority and came not Then the Lords as it seemeth by the Record sent to apprehend him and he could not be found wherefore they awarded that all his Goods should be put in Arrest Ibid. N. 17. It is briefly entred Adam was sent unto to come and answer in Parliament he came not nor could be found Wherefore it was awarded c. Which is sufficient to prove A Commoner is not to be brought a Prisoner to his Answer for a Misdemeanor if he will appear 5 R. 2. The Mayor and Bayliffs by name and the Townsmen of Cambridge were complained of in Parliament for many Outrages against the Scholars there and the Lords sent one Writ to the Mayor and Bayliffs that then were and to the Commonalty to appear and answer and another Writ to the Mayor and Bayliffs that did the Outrage and they appeared in person and the Commonalty by their Attorney This was the Ancient Course Yet even in these Days viz. 15 R. 2. the Peer of Holland complained of a great Riot committed by Henry Tibb and divers others in the Parsonage-House of one Williams Whereupon a Sergeant at Arms by vertue of a Commission to him made brought up the said Tibb and one more only the principal doers therein before the Lords in Parliament who upon the Return of the Examination confessed nhe whole Matter and were committed But I suppose the Sergeant at Arms was sent for haply they would have obeyed no Writ and yet he was sent for two of the principal Offenders only At this Day if the Commons accuse a Commoner of Misdemeanors in such a state of Liberty or restraint as he is in when the Commons complain of him in such he is to answer prout 18 Jac. Sir Francis Michell and Sir John Bennet were both committed by the Commons before their complaint to the Lords and so they answered as Prisoners But that in a sort may be called Judicium Parium suorum 18 Jac. The Earl of Middlesex being then Lord Treasurer and accused of Misdemeanors only absented himself from the House His Charge was sent to him in writing and he answered in writing At the Day prefixed for his Trial he was summoned by the great Usher to appear He came without his Staff and kneeled until the Lord Keeper willed him to stand up There he protested That he ought not to answer in that Place and desired others might not be prejudiced thereby And I hope they will not The Earl did himself the first wrong by absenting himself from the House for he might have stayed there until Judgment unless when his own Cause came in agitation §. 2. Touching Councel In all Causes of Felony Treason c. Councel antiently was denied to the Party accused prout Anno 4. R. 2. Numb 21. Sir Ralph Ferrers was brought to the Parliament under the Guard of the Marshal of England and arraigned at the King's behalf for suspition of Treason who prayed to the King and to the Lords to have Councel in that Case Unto whom it was said That in all Matters wherein Councel ought to be granted by the Law of the Land the King or Lords would allow it And it was further
Precedents mention the King's Assent in Capital Judgments except that one against Matrevers 4 E. 3. which might be the omission of the Clerks who drew up the Roll for it is said directly afterwards in the said Bill Numb 6. That the Peers gave those Judgments in the presence of our Lord the K. and by his Assent And except that of 1 R. 2. against Weston in the last Day of the Parliament and it was 3. in the Afternoon that Day before the Lords had determined what to do in that Business so that it may be the Lords were prevented of time herein to have which they respited Execution for that the King was not informed of the manner thereof Secondly For that the Lords Appellants 11 R. 2. who had then great Forces about them were so earnest with the King for his Assent to the Judgment against Burley That the Duke of Gloucest told him as appeareth by his own Confession 21 R. 2. That if he would be King he should not intreat for Simon de Burley to save him from Death And in the end when his Majesty would not assent to their Judgment yet they wrought so that Messengers were sent unto him and brought word not before they gave Judgment against Simon and the King's Assent is mentioned in the said Judgment All which the said Lords would not have done had not the King's Assent been necessary And afterwards in the Parliament of 21 R. 2 The Lord Cobham being accused for giving Judgment without the King's Assent answered That the Messenger brought word That his Majesty had assented And yet because he did not gainsay that the King did deny his Assent the Commons immediately demanded Judgment All which seem to imply That the King's Assent is necessary in Judgments upon Capital Offences Touching the Second viz. Judgment against the King 's Will. It is all one with Judgment without the King's Assent Touching the Third viz. In the Absence of the King The Judgments of this kind are good notwithstanding so as the King doth assent as that of Simon de Burley 11 R. 2. Touching the Absence of many of the Peers That is to say of many of them and against their will This cannot invalid their Judgment so as the greater number of the Lords be then present accompting the Proxies of the absent Lords for it is not material whether some Lords do absent themselves or disassent The chiefest Matter is the Assent of the Lords who are present either in Person or by Proxy The others are to Answer for their Absence without a just Cause shewn or a proper Assent § 2. In Judgment on Misdemeanors the King's Assent is not required 50 E. 3. The Lords judged divers Commoners for Misdemeanors and the King's Assent not mentioned as Richard Lyons William Lord Latymer a Privy Councellor John Lord Nevil a Privy Councellor Jo. Peecher and others The King was then sick at his Mannor of Eltham and on the last day of the Parliament the Lords Prelates and Commons came before him there and he heard the Petitioners and their Answers for most part read and also Judgment given on the Privy Councellors and others dont ils se leyron franchement le respons de mesme nostre Seignior le Roy Numb 15. Which shews that the King had not assented to them 7 R. 2. The Bishop of Norwich was accused of Misdemeanors and judged in 10 R. 2. The Lord Chancellor Mich. de la Poole was judged by the Lords for Misdemeanors and Speed fol. saith That the King was much displeased thereat for it appeareth he gave not his consent And it was one of the Questions demanded of Tresilian and others 11 R. 2. Whether the Judgment were erroneous or not and resolved to be erroneous yet it was not objected against any the Lords Appellors that the Judges proceeded without the King's Assent §. 3. The King's Presence in Parliament In 4 E. 3. The King commanded the Lords to do right and lawful Judgment on Mortimer The which Earls Barons and Peers having examined the Articles came again before the King and said c. Ibidem The King commanded them to give Judgment on Simon de Bereford The which Earls Barons and Peers came again before the King and said c. And so the King was present at their Judgment but not at their Consultations 10 R. 2. The King was present when the Commons accused the Lord Chaneellor William de la Poole of Misdemeanors but he was not present at his Trial for he demanded if he ought to answer sans presence de dit Roy being Chancellor and in the end he answered notwithstanding 21 R. 2. In the cruel Parliament of the Lords Appellants the King was present at the Parlies Non constat whether he was present at the Consultation of the Lords 5 H. 4. The King was present when the Earl of Northumberland was to be tried upon his own Petition and so were the Commons And the King delivered the Petition to the Judges for their Opinion but the Lords claimed their Right But this was on the Wednesday and the Friday following the King and Commons met there again and the Chancellor rehearseth First What was done the first Day and the Lords having had competent deliberation on the said Petition and having heard and considered the Statute They adjudged c. It is plain the King was not present at this Consultation of the Lords though at their Judgment 7 H. 4. He commanded the Lords to advise what manner of Process shall be made and what Judgment shall be rendred against Henry de Peircy Earl of Northumberland and a Week after the Lords declared their Opinion to the King And it appeareth in that Roll very clearly that all Evidences and Examinations were shewn and taken by the Lords in the absence of the King and their Advice also agreed on in his Absence but the Judgment reversed in his Presence To conclude The King may be present if he please at the Parties Answer in Capital Causes and at the Judgments given prout c. But he was never present at other times of Proceeding against the Delinquent nor at any Answer for Misdemeanors for ought I have yet seen §. 4. The Presence of the Lords Spiritual In Cases of Misdemeanors the Lords Spiritual have ever been present but never in Offences Capital This is so generally-received of all men that it is not worth the Labour to prove it yet I will vouch the Precedents For it may be out of one or other of them somewhat may occur worthy the Observation In Misdemeanors In 1 R. 2. Alice Peirce was brought before the Prelates and Lords in Parliament to Answer and the Prelates and Lords did ordain 42 E. 3. Numb 20 c. John at Lee was put to Reason before the Prelates Lords Dukes Earls Barons and some of the Commons 7 R. 2. Jo. Cavendish accused the Lord Chancellor of Bribery before the Prelates and Lords in
private persons where the party might have his Remedy at the Common Law prout Botheil Cooper Anno 50 E. 3. accused William Ellis for extorting 17 Nobles from certain Merchants at Pruse and also for their wrong Imprisonment by the false Suggestion of William Ellis to the King And the Lords referred the taking of the 17 Nobles to the Common Law But upon the Examination of the Imprisonment it was proved That Ellis did write his Letters to one of the King's Bed-Chamber falsly suggesting against Botheil and Cooper which Letters were shewn to the King his Majesty then commanded them to be Committed This the Lords expounded to be false Suggestion in Ellis The King himself judged him for the same Had that Point been cleared in the Statute of False Suggestions haply the Lords would have referred it to its proper place So also Anno 5. E. 2. The Lords referred the Accusation of Clingdon to be Tried at the Common Law Secondly Touching the Demand That verily belongs to the Party at whose Suit it is To the King's Councel for the King if the Articles were de part le Roy and to the Commons against an Impeached Delinquent By whom Judgment ought to be Rendred It appeareth plainly by many Precedents That all Iudgments for Life and Death are to be rendred by the Steward of England or by the Steward of the King's House and this is the Reason why at every Parliament the King makes a Lord Steward of his House though he hath none out of Parliament And at such Arraignment the Steward is to sit in the Chancellor's place And all Judgments for Misdemeanors by the Chancellor or by him who supplies the Chancellor's place CHAP. VI. The Precedents for Life and Death ANno 10 R. 2. John Lord Gome 〈…〉 and William Weston were brought by the Constable of the Tower before the Lords in Full Parliament sitting in the White Chamber where they were severally Arraigned at the Commandment of the Lords by Richard le Scroop Chief Steward of the House of our Lord the King in manner following Here the Lords commanded the Arraignment of certain Earls Peers of the Realm They did not appoint the Steward to do it It belonged to his Office Anno 20 R. 2. Thomas Haxey was Arraigned of High Treason before the King the Lords and Commons in full Parliament in Alba Camera by the Duke of Lancaster Seneschallum Angliae and the Judgment rendred by him Anno 21 R. 2. All those Judgments on the Appeal were rendred per Seneschallum Angliae The Records of E. 3. and H. 4. are silent herein by whom the Judgment was rendred It may be Objected That Anno 5. H. 4. The Lord Chancellor kept his place at the Trial of the Earl of Northumberland because he did deliver the Opinion of the Lords That could not properly be called a Trial for it was upon the Earl's own Petition And if it were resolved whether it were Felony or Treason it should have been done by the Steward sitting in the Chancellor's place Neither doth it appear by the Record that the Chancellor kept his place though he afterwards delivered the Opinion of the Lords So likewise Anno 1 Car. 1. Febr. 6. The Lord Keeper kept his place when the Articles of Treason were read against the Earl of Bristol but he did not Arraign him Then they were read and his Answer heard by the appointment of the House and some Witnesses examined also to the end they might understand the true Nature of his Offence and then to declare how and in what manner to proceed against him for the same The Spiritualty did not deliver their Opinion therein To conclude All Records that are which mention by whom the Delinquents in Cases Capital were Arraigned do say that it was by the Steward of England or of the King's House And in remembrance of this a Lord Steward is appointed at every Trial of a Peer of Parliament Touching Judgment rendred by the Chancellor in Cases of Misdemeanors it is needless to recite any Precedents only this I will say The Chancellor never gave Judgment on Life and Death and the Steward never on Misdemeanors And though there be Precedents of Judgments given by the Steward of England in Parliament prout 20 21 R. 2. yet I have seen none of the Judgments on the Peers rendred by the Steward of the King's House And the reason may be for that there was anciently a Seneschallus Angliae Quaere tamen whether the Steward of the King's House being a Peer may give Judgment on a Peer or not I think he may if there be no Steward of the House constantly made every Parliament though but during the Sessions The last Considerable Thing in Judicature is CHAP. VII The Execution of the Judgment ANd first in Capital Offences I have seen but two Precedents thereof in the Parliament-Rolls The First is 4 E. 3. Which begun on Monday after the Feast of S. Katherine There were long Articles exhibited against Mortimer for Treason and he was adjudged to die for Treason and thereupon saith the Record Commandment was given to the Earl Marshal to Execute the Judgment and also to the Mayor Aldermen and Sheriffs of the City of London and to the Constable of the Tower and likewise to them who had the Guard of the said Mortimer to be aiding to the said Earl Marshal to do the said Execution The which Execution was done and performed upon Thursday next after the first Day of the Parliament which was the 29th Day of November Ibidem Num. 2. Judgment was given on Simon de Bereford to be Drawn and Hang'd And thereupon it was Commanded that the Marshal should do Execution near the Tower of London And the said Earl of Arundel was Beheaded ou the same Day The Earl of Nottingham one of the Lords Appellants was Lord Marshall at that time and therefore his Deputy did Execution Item The Earl of Warwick being adjudged to die the King did pardon the Execution and granted him his Life viz. That he should remain in perpetual prison out of England in the Isle of Man c. And that he be at Sea on his passage before the end of one Month. And thereupon he was delivered to Monsieur William le Scroope and to Monsieur Stephen his Brother to bring him safely to the said Isle of Man c. The Earl Marshal was Commanded to Execution on a Peer and the Marshal on a Commoner The Command no doubt issued from the Lords with the King's Assent herein Thus much touching Execution quoad Mortem In Misdemeanors the greatest Corporal punishment hath been Imprisonment I find no other in Ancient Parliament But who was the Officer to carry the Delinquent to prison is not Recorded save he to whose Custody he was Committed prout 42. E. 3. John at Lee was Committed to the Tower Et dit fuit al Monsieur Alley de Buxhill Constable de la Tower que il
were also recorded and read in Parliament Numb 17. 18 19 20. but the Information exhibited against him whereupon he was arraigned is not recorded It is only said He was arraigned Ex parte Domini Regis §. 3. Here might be two Questions First Whether was this Sir Ra. Ferrers legally brought to his Answer in Parliament by the commandment of the Duke of Lancaster and those other Lords who were then with him in the Marches of Scotland Secondly Whether he being no Baron or Lord of Parliament for he never had Summons might be legally arraigned in Parliament for life and death upon an Information Ex parte Dom. Regis which is contrary to the Law as was resolved in Parliament 4 E. 3. Numb 2. and 6. For resolutions of these doubts I am of opinion that the Duke of Lancaster might send Sir Ra. Ferrers to the Parliament because it was then sitting and might examine the Treason whereof he was suspected though they could not proceed to Judgment against him without the Commons he being a Commoner and not their Peer And it fell out in the Examination of this business they found the Letters to be counterfeited and so he was acquitted thereof And so far their proceeding was not illegal For the Parliament may entertain and examine any Cause and then direct the Judgment thereof to its own proper Court if it belong not unto them as they did in 5 R. 2. Numb 43. 44. Here Sir William Cogan Knight being accused by Sir Richard Clurdon of matter sounding to Treason After the Lords had heard the Cause they remitted both the parties to the Common-Law And in this Case of Sir Ra. Ferrers if they had found he had been guilty they might have proceeded to Judgment against him according to the Precedent of Sir Tho. Mortimer in 2 H. 4. who was indicted in London and the Indictment returned into the Chancery and thence brought into the Parliament where the Commons affirmed the same and prayed Judgment against him Anno 2 H. 4. The Lords Temporal gave Judgment on one Tho. Holland Earl of Kent John Holland late Earl of Huntington John Mountague late Earl of Salisbury the late Lord de Spencer and Ralph Lumley who were beheaded in a War they had Trayterously raised against the King This Judgment is entred but not the Information Ex parte Dom. Regis which is necessary to be understood for had it been omitted his Son Thomas would without doubt have assigned that for one of the errors in his Petition to reverse the said Judgment 2 H. 5. apud Leicester which he did not though he assigned for an Error That his Father was put to death without an accusation In the Parliament begun at Westminster Feb. 6. 1 Car. 1. and continued until June 25. Anno 2. ejusdem Regis John Earl of Bristol was charged with High Treason in this manner viz. Primo die Maii. The said Earl of Bristol being brought to the Bar and kneeling till the Lord Keeper wished him to stand up The Lord Keeper told him he was sent for to hear his Charge of High Treason And Mr. Attorney General being at the Clerks Table began to open his Charge but being interrupted by the said Earl who with much importunity exhibited Articles against the Duke of Buckingham then present which as he said he conceived to be Treason and required of the Lords that his Testimony against the Duke and the Lord Conway against whom he then also delivered Articles might not be made invalid no more then the Charge against himself which he affirmes was procured by the said Duke yet notwithstanding the head of the Kings Charge were opened against him by Mr. Attorney and then the said Articles against the said Duke and against the Lord Conway were read And it was ordered by the Lords of the Parliament that the Kings Charge against the said Earl should be first heard and afterwards the Earls Charge against the Duke c. But yet so as the Earls Testimony against the said Duke be not prevented prejudiced hindred or impeached Secundo die Maii. The House was moved that the Earl of Buckingham might be indicted according to the Stat. of 35 H. 8. the Treasons committed being beyond the Seas as was objected and that being certified to both Houses they to proceed against him by Tryal of Peers But their Lordships did not resolve on the manner of proceeding Then the Houses were moved that Mr. Attorney might provide an Indictment against the said Earl to be returned to the House on Saturday next Maii 6. And if he doubt of the Form to confer thereof with the Judges And if any great difficulty appear to resort to their Lordships and acquaint them with it And it was ordered that Mr. Attorney proceed with the preparation but the Houses not to be concluded at their next meeting on Thursday And the Sub-Committee for Priviledges c. to search for Precedents in the mean time Die Jovis Maii 4. The Sub-Committee for Priviledges reported one onely President viz. the Tryal of the Earl of Northumberland 5 H. 4. which the Clark read unto them out of the Parliament Roll of that year Whereupon after long debate It was ordered first that Mr. Attorney prepare the heads of the Charge against the Earl of Bristol and to bring them in on Saturday next Secondly The Earl then to receive his Charge at the Bar. Thirdly That when the Earl hath heard his Charge the Lords will determine when he shall Answer But he is not to be inhibited if he will Answer presently Fourthly The Cause of the Earl of Bristol is to be retained wholly in this House After the Earls Charge is brought in and his Answer then their Lordships to proceed to hear Mr. Attornies proofs amongst themselves and then to put the Cause into a way of Proceeding in this House Die Sabati Maii 6. The Lord Keeper shewed how Mr. Atturney desired that in regard the House hath already heard the nature of the crimes objected against the said Earl of Bristol That the Clark of the Crown in the Kings Bench may attend the reading of the Charge here according to a Precedent of former times which was denyed in regard the Clark of the Crown in the Kings bench is no Minister of this Court And also for that it was ordered May 4. that this Cause was wholly to be retained within this House The said Order being read the Earl was brought to the Bar and the Lord Keeper commanded Mr. Attorney to read the Charge against him who read the same out of a Parchment ingrossed in Court-hand and signed by himself Ro. Heath It containeth diverse Articles of High Treason and other great Enormities Crimes Offences and contempts committed by the said Earl c. prout postea Thus much touching the Charge against the said Earl by Information in the Kings behalf A Question was demanded of me and others in private the last Parliament