the Particulars in form of a Charge they were sent to the Lord Chancellor and his answer required to each particular In the same manner in the same Parliament they accused John Bennet Judge of the Prerogative Court of Bribery and Corruption in his Office In the same manner they accused and impeached Lyonel Earl of Middlesex and Lord Treasurer of England of Bribery and Extortion and Impositions on French Wines and Grocery which being reported to the House a Committee was appointed to consider of the Commons complaint and also of a Committee who had reported to the House a great want of Powder in the Stores through the Lord Treasurer's negligence A Committee appointed to consider thereof did after many Examinations taken draw up out of the whole Complaint of the Commons a Charge against him as also out of the Report of the Committee for Munition touching the want of Powder and of a Complaint made to the House by Sir Thomas Dallison and of some Misdemeanors whereof they are informed in the great Wardrobe and Court of Wards Which Charge the House sent unto the Treasurer and required his Answer 21 Jac. In eodem Parl. 21 Jac. The Commons at a Conference accused and impeached by word of Mouth the Bishop of Norwich of some Misdemeanors which being reported to the House the said Bishop made a present Answer thereunto as it was In the Parliament 1 Car. 1. Febr. 6. The Commons at a Conference accused and impeached George Duke of Buckingham of many Misdemeanors and delivered their Declaration in Writing that the said Duke might be put to his Answer § 2. The second manner of Accusation is Ex parte Domini Regis which is threefold The two first are immediately from the King and the third from the Commandment of the Lords by a formal Information exhibited in Parliament by the King's Attorney or Council learned as was that of E. 3. against Roger Mortimer Earl of March and divers others and 4 R. 2. against Sir Ralph Ferrers K t and 1 Car. 1. against the Earl of Bristol By the King's Commandment either upon the Petition of the Delinquent and upon the return and view of any the Proceedings taken elsewhere as against the Earl of Northumberland and Lord Bardolph upon former Proceedings against them in the Court of Chancery And 2 H. 6. upon request of the Commons against Sir John Mortimer Knight indicted in London In these Cases no Articles are exhibited Ex parte Domini Regis as in the former By Articles exhibited Ex parte Domini Regis Ex parte Dominorum against such as the Complaint is made upon in general by the Commons prout 1 R. 2. against Gomeniz Weston and Alice Peirce 7 R. 2. against the Bishop of Norwich and divers others Which Articles though drawn and exhibited Per mandatum Dominorum yet were the Parties charged therewith Ex parte Domini Regis Of Accusation by Information Ex parte Domini Regis In Rot. claus 4 E. 3. There is a Proclamation of the death of Edmond Earl of Kent where it is said certain Letters of his containing Treason were shewed to the King wherefore he was Arrested and freely acknowledged the same before the Earls Barons and other Grandees and Nobles of the Realm in the Parliament at Winchester 4 E. 3. Here appears plainly that Articles of Treason are exhibited in Parliament against the Earl of Kent In the next Parliament in the same year Edmond Son and Heir of the said Edmond exhibited his Petition praying the King that the Record and Process whereupon the said Earl was put to death might be brought before him in Parliament and if Errors be found that Right be done Numb 11. The which being read before the King Prelates Earls Barons and other Grandees in the said Parliament the King by his Royal Power and Dignity by assent in Parlialiament repealed the said Judgment Numb 12. Note That in this Repeal no Error was alledged nor any Exceptions taken for this that the Lords proceeded upon the Articles only which were objected against him the said Earl This is out of the Close Roll. The first Precedents recorded in our Parliament Rolls of Accusations in this kind are these of 4 E. 3. in the Parliament at Westminster which are added at large amongst divers others at the end of this Discourse the effect whereof doth follow viz. These are the Treasons Felonies and ill Deeds done to our Lord the King and to his People by Roger de Mortimer and others of his Covin reciting them all and concludeth thus Whereas our Lord the King doth charge you the Earls Barons and other Peers of this Realm that for as much as these things touch him principally and you and all the People of this Realm That you do unto the said Roger right and lawful Judgment as is fit for such an one to have who is very guilty of all the crimes above written for that he believed the said things are notorious and known for truth unto you and to all the People of the Realm Numb 1. The followeth the Judgment against him Item In the said manner our Lord the King charged the said Earls Barons and Peeres to give right and lawful Judgment on Simon de Bereford Knight who was ayding and counselling unto the said Roger de Mortimer in all treasons and ill deeds for which the said Roger was so awarded and done to death as the thing that is known and notorious to the said Peers as the King believeth Then followeth the Judgment against him also Then followeth the Judgment against John Matrevers Thomas de Gurney and William de Ogle Numb 5. But no particular accusations are recorded against any of them unless they were comprised in those general words of that against Mortimer viz. And other of his Coyn. For some of the same Crimes are mentioned in the Judgments yet no doubt but the Kings Attourny did exhibit Articles against every of them upon which the Lords proceeded to Judgment Here I do ingenuously confess my own Error when I said that this Judgment against Roger de Mortimer was afterwards reversed for that he was put to death without any Accusation which I conceived to be so upon first view of the Repeal thereof Anno 21. E. 3. Numb 10. Where the Petitioners Roger de Mortimer the Grandchild assigneth for that the said Earl was put to death and he disinhereted Sans Accusament Et sans estre masone in Judgment ou en Respons By which words sans accusament I gave you to understand that the Articles were no accusation whereas now upon better Consideration I do find that these words do intend no accusation by witnesses or otherwise to prove the said Articles objected against him For these Articles are a legal accusation in Parliment and frequently used as appears by many Precedents of the like nature But there was no other proof offered by the Lords to prove the same then that the King believeth them
Question is out of that which seemeth to be most generally agreed on In the Judgment it self is to be considered First Whether it be ultra Legem Secondly By whom to be Demanded Thirdly By whom to be Rendred Touching the First Judgments in Parliament for Death have been strictly guided per Legem Terrae otherwise they would not have judged the Earl of Kent the King 's own Unkle to be Hanged Drawn and Beheaded might it be left to their Discretion Vide Literas E. 3. to the Pope speaking of this Earls Judgment by the Parliament for Treason Cui Sententiae subductis tamen quibusdam opprobriosis in detestatione tanti Sceleris de Rigore Legis nostri Regni infligenda erat Dolentes acquievimus 4 E. 6. But the Roll is lost The Lords judged Mortimer to be Drawn and Hanged as a Traytor 4 E. 3. Simile pro Simone de Bereford N. 2. Ibidem Numb 3. They judged John Matrevers to be Drawn Hanged and Beheaded 10 R. 2. Weston adjudged a Traytor for delivering up of Castles Forts c. And so Jo. Lord Gomeniz a German was adjudged to die but because he was an Alien and a Baronet and was not the King's Liege-man he should be Beheaded That being the Death used in Germany to Gentlemen 10 R. 2. Simon de Burley the Earl of Arundel and others were Adjudged to be Hang'd Drawn and Beheaded for Treason They differ something yet herein they agree That the opprobrious Death of a Traytor is to be Drawn and Hang'd which the Parliament could not alter no not in their Judgments against the King 's own Unkle It was per Legem Regni infligenda The King might pardon all and usually did except Beheading of the Nobility of his own Blood and of later Times to all Noblemen As the Parliament could not dispence with nor omit any part of the Judgment on Traytors so they could not add more than the Law required And this may appear by their Judgments of Forfeitures of the Parties Estate The Parliament 4 E. 3. spoke nothing what Mortimer should forfeit to the King He well knew the Law could give the King all his Lands in Possession Reversion or Service Vide The Restitution of 28 E. 3. Numb 10. The Ordinances in 50 E. 3. Numb 45. against Women which shall make suit c. to the King against Alice Peirce by Name is Upon pain of as much as she can forfeit and to be banished But had it not been for the former Ordinance the Lords would not have given any such Judgment against her Her Offence being only for procuring Favour to her Friends from the late King contrary to a former Order of Council 11 21 R. 2. The Lords Adjudged the Forfeitures to the King of some Convicted on the Appeals greater than the Law will give but they passed Special Acts in each Parliament to Confirm both the Judgments and Forfeitures 1 H. 4. The Lords Adjudged and Declared the Earls of Kent Salisbury and others to be Traytors and to Forfeit Numb 30. as the Law of the Land willeth 7 H. 4. They Adjudged the Earl of Northumberland and Lord Bardolph to Forfeit for Treason all their Lands in their own Demesne or where others were seized to their Use. And so in Fines and Amerciaments the Judgments anciently were indefinite prout 42 E. 3. Numb 26. John at Lee is Committed to the Tower there to remain till he hath paid Fine and Ransom to the King and at the King's will and pleasure 50 E. 3. He is Awarded to Prison at the King's Will and to be put to his Fine and Ransom according to the quality of his Trespass who being brought before the Lords they told him his ill Deeds were so great that he had not wherewith to make satisfaction and he submitted to the King's Grace and the Lords Awarded all his Goods to be seized and his Body to be in Prison at the King 's Will. Eodem Anno The Lord Latimer to make Fine and Ransom at the King's Will Numb 28. Item William Ellis the like Num. 28. John Peecher the like Num. 33. Cavendish Awarded 7 R. 2. to pay Dammages to the Chancellor and to remain in Prison until c. and the King de Fine suo competenti sibi inde debito but not set down how much to the King These Fines were not put in certain for that the Law limits them to the King's Will But not doubt but after the Judgment the Lords did rate them as may be gathered out of Richard Lyons where after Judgment they called him before them to consider it seems at what Rate to Tax the same And they found it not sufficient And in Ancient Court-Barons the Amerciaments were ever offered after the Presentments In the Star-Chamber all Fines were usually mitigated after the Censure and that Court had Antiqua Vestigia Magni Consilii I hold that anciently the Fines were often Rated or Taxed And if the Lords may mitigate a Fine à Majore they may Tax it after the Judgment the Certainty not being then specified Judgments for Satisfaction In Complaints of Extortion and Oppression the Lords Awarded Satisfaction to the Parties wronged which sometimes was certain sometimes general but always secundum non ultra Legem 42 E. 3. Numb 18. Full Restitution was made unto William Latimer of the Wardship and Marriage of the Heir of Sir R. Latimer whereof he was outed by Duress by John at Lee. But this was done by a great Councel per Commandment du Roy after the Judgment William Ellis 50 E. 3. Awarded to pay to Botheil and Cooper 20 l. apiece for their Damages Num. 25. John Peecher Num. 23. Awarded que il face yeulx a les parties Compl. de lui pour les extortions issint prizes Jo. Nevile Num. 34. is Awarded to make Restitution to the Lady Ravensholme in Certainty for an Oppression done to her whereof the Commons complained 7 R. 2. The Parliament referred the base Accusation of Cavendish against the Lord Chancellor to be heard and determined by the Justices in such sort as if the Parliament had determined the same And the Justices adjudged him convict of Slander and that the Lord Chancellor should recover his Damages which they Taxed at 1000 Marks and that he be imprisoned until he had satisfied the Chancellor and the King pro Fine competenti sibi inde debito The Iudgment against Alice Peirce Anno 10 R. 2. was That if she had purchased any Lands by Force or Duress soit il pur Fine or Deed en pais or Deed enrolled or otherwise that her Purchase be held for none and the parties who hold themselves aggriev'd have their Process against her in Chancery By Advice of the Grand Councel Let Right be done to the Parties and Restitution made according as the Case requireth so as the Purchase made bona fide be not undone or annulled any way References to the Common Law Nor could the Lords judge any Complaint of
Parliament Numb 9. Whereupon the Prelates and Clergy being severally examined deputed for them all Tho. de Piercy But in ancient times in libro Mailicess Numb 9. which hath written somewhat largely of this Parliament It is said The Pardon 's granted to the Earls of Arundel were first repealed by the Assent of the Prelates for which he blames them much saying Dederunt ergo locum Praelati Judicio Sanguinis in hoc facto ita quod dubitatur à pluribus si incurrunt irregularitatem pro negotio memorato unde contigit quod propter istud minus peccatum consequentur nam exactum est ab iis vellent nollent ut Laicam Personam constituerent ad Judicium Sanguinis dandum in dicto Parliamento si necesse foret occasio emersisset I have perused all Judgments and Ordinances in Parliament and do not yet find one whereto any Exceptions were taken for the Absence of the Prelates and Clergy I find an Exception to the Judgment of the Exile in 15 E. 2. for that it was made without the Assent of the Prelates who were present and protested in writing against it And one of the Errors whereupon it was repealed is for that it was made without the Assent of them who were Peers of the Realm in Parliament But this Repeal was per duress force c. prout 1 E. 3. c. 2. So as this cannot be alledged for a Legal Precedent 5 H. 4. The Earl of Northumberland came before the King the Lords and Commons in Parliament The Lords made Protestation that the Judgment belonged to them only c. The Petition being read before the King and the said Lords as Peers of the Parliament unto whom such Judgments do of Right belong considering c. adjudged that it was neither Treason nor Felony c. Note That all this Parliament the Bishop of was Chancellor and he as Chancellor delivered the Opinion of the Lords when they had acquitted the said Earl of Treason Whereby it seems that He and the other Bishops were present at the Trial of Life and Death wherefore though the Record doth here say the Lords indefinitely we must understand the Lords Temporal only especially since they claimed the said Judgment to belong to them In 4 E. 3. Judgment was given by the Earls Barons and Peers as Judges in Parliament in point of Treason where the Prelates are not named and therefore understood of the Temporal Lords only This will be explained by the next of 7 H. 4. Rot. Process coram Domino Rege c. The King commanded the Lords Temporal Peers of this Realm to advise what Process to make and what Judgment to render against the Earl of Northumberland and the Lord Bardolph The Lords advised thereupon and reported their Opinions to the King The said Lords Peers of the Realm by Assent of the King Ordain That Proclamation should be made for the said Earl and Lord Bardolph to appear or else to be Convicted by Award of the Peers in Parliament The King did farther demand the Opinion of the said Lords Temporal touching the Archbishop of York unto whom the said Lords Temporal said c. The Commons prayed the King that they might have Cognizance c. Whereupon by Advice of the Lords Temporal the Returns of the former Proclamations were made at the Parliament-door for the said Earl and Lord to appear By Advice of the said Lords Temporal the Returns of the former Proclamations were examined the said Lords Temporal considered of the Errors therein By the said Lords Temporal with the Assent of the King by their Authority New Proclamation is granted the Return whereof is read in full Parliament before the King and the said Lords Temporal Whereupon the said Lords Temporal then being in the said Parliament by Advice and Assent of our Lord the King by their Authority in Parliament Awarded the said c. Convict of Treason Here all was done by the Lords Temporal from the first beginning of the Trial until the Judgment and yet the Judgment is said to be in Full Parliament notwithstanding the Spiritual Lords are not once mentioned nor intended to be present at any time whilst the Matter of Treason was handled §. 5. Touching the Presence of the Commons in Cases Capital I observe the Presence of the Commons to be necessary at the Parties Answer and Judgment in Cases Capital Now one Reason for the King's Assent and the Commons presence in such Judgments may be this Both King and People are to be satisfied for the death of the Subject therefore all Trials for Life and Death are publick in the full Assembly of the Court And how can it be said in Full Parliament when the Commons one of the States are absent For this purpose the Court of Requests called Camera Alba was prepared for such Trials where both Lords and Commons might meet more conveniently yet though the Commons were present at such times they had no Voice there But at their Return to their own Assembly they considered among themselves if the Proceedings were Legal and might come again and shew it and require a Rehearsing of that Cause as they did at the Judgment of the Duke of Clarence 18 E. 3. Nor are the Commons to be present when the Lords do consider of the Delinquent's Answer and the Proofs and do determine of their Judgment The Precedents are these 10 R. 2. Gomeniz and Weston were brought before the Lords and Commons seaux a la blanch Chambre and Answered on Friday 27 Novemb. and there they were delivered to the Constable of the Tower who was commanded to bring them again the next Morning In the mean time the Earls Barons and Baronets assembled and advised from the time that the said Answers were given in Parliament on Friday until part of Saturday to the hour of Three of the things touching the Answer aforesaid and then the Prisoners were brought in to the Parliament 10 R. 2. Rot. de Pardonatione Haxei 7 Febr. Anno praedicto Praedictus Tho. Haxei coram Nobis omnibus Dominis Parliamenti Nostri existentibus in Alba Camera adductus fuit Billa praedicta coram praefato Thoma ibidem per Praeceptum Nostrum lecta fuit Quaesitum fuit per Charissimum Avunculum Nostrum Ducem Aquitain Lanc. Seneschallum Angliae à praefato Thoma si ipse dictum praefatum Communibus tradidit 5 H. 4. The Earl of Northumberland was brought to his Trial on Wednesday Then the Commons were present but I do not find that they were present with the Lords between Wednesday and Friday when the Lords advised on the Earl's Petition This Record mentions not where the Assembly was Numb 7. H. 4. Quint. of his Reign After the Lords had Awarded Proclamation against the Earl of Northumberland and the Lord Bardolph to appear at a Day or Judgment to be given The Commons not being acquainted therewith they came and prayed the King they might