and that they are notorious and known for truth unto the Lords and all the People of the Realm And the Lords also having examined these Articles said all these things contained therein are notorious and known They speak not a word of any one witness examined or any other proof then the common fame For this Cause and for that the said Earl was not brought to Judgment nor to answer but condemned unseen and unheard upon common Fame only without any legal Proof The whole Parliament did very justly Repeal the said Judgment and Record declaring it to be erronious and defective in all points And the Lords were willing to damn the whole Record in all points least haply it might be alledged against themselves another time for Precedent Anno 15. E. 2. The Lords and Commons joyned in the Accusations against the Spencers and for that the Lords had no Record in their own pursuit upon the Cause contained in their award and they ought not to be their own Judges c. having been Accusors no exceptions were taken to the Articles but other Errors assigned quod vide where it is said to be sans Accusament so that they repealed it not for that there was no Accusation but for that he was not brought to his Answer Again That those words Sans accusament should simply signify no Accusation is only the Averment of the Petition The Judgment doth not say that there was no accusation but that it was erronious in all points And so it was no proof being produced but common Fame to prove the Answer And this first error bred a second I do not well understand the meaning of these words Sans accusament That a Peer ought to be Indicted for Capital offences in Parliament But having perused all the Judgments I do not find any one Peer indicted in Parliament In 11. R. 2. Numb 7. All the Lords Spiritual and Temporal claimed as their liberty and franchise that the great matters moved in this Parliament and to be moved in other Parliaments in time to come touching the Peers of the Land ought to be admeasured adjudged and discussed by the course of the Parliament and not by the Civil-Law nor by the Law of the Land used in the more base Courts of the Realm which the King granted in full Parliament eodem Anno Rot. Appeal 290. This is said to be their ancient custom viz. To be adjudged according to the use of the Parliament only Then no Peer can be indicted in Parliament for that it is contrary to the use of Parliament Let this suffice for the confession and rectifying mine own former Error herein But a Lord of Parliament may be indicted out of Parliament and by the Kings command proceeded against in the next Parliament upon the same indictment as in these Subsequent In the same Parliament the Lord Berkley was arraigned for the death of Ed. 2. and whether out of his humility or otherwise he waved his Peerage and put himself on the Tryal of his Country the Articles against him though not expressed but by the Inference out of his Arraignment are for the murder of King Ed. 2. at Berkley Castle in the County of Gloucester unto which he answered that he was then sick at Bradley in Worcestershire and pleaded not guilty of the death of the said King Et de hoc de bono malo ponit se super Patriam The Precedent shall hereafter be added at large It begins thus Placita Coronae tenta coram Dom. Rege Ed. 3. post conquestum Angliae in pleno Parliamento suo predicto Et allocutus de hoc quod cum Dominus Edwardus nuper Rex Angliae Pater Dom. Regis nunc in custodiam Thomae cujusdam Johannis Matrevers extitit deliberatus ad salvo custodiendum Castro ipsius Thomae de Berkley in Com. Gloucester in eodem Castro in custodia ipsorum murderatus extitit interfectus qualiter se velit de morte ipsius Regis acquietare dicit c. Numb 16. Then follows his Answer Here the cause why the Lord Berkley was tryed is mentioned but the Articles objected against him and by whom he was accused who questioned him whether the Chancellor or Steward of England or who else All these circumstances are omitted It appears not I say in what manner this crime of the Lord Berkley was presented to the Lords whether by the former general Information against Mortimer autres de la Covyn or by some such Particular Information against him alone which I rather believe Some such Information there must be of necessity else how could he be question'd for his crime in Parliament But here it appeareth that the Lords brought him to his Answer which they omitted to Mortimer and in that Point their Proceedings against Mortimer were erronious And had his manner of Accusation been erronious also No doubt but the Lords would have avoyded that error now against Berkley The manner how Berkley was arraigned here in pleno Parliamento is explained in the Precedent of 1 R. 2. Gomeniz and Weston who were brought Prisoners by the Constable of the Tower before the Lords in full Parliament sitting in the white Chamber where they were arraigned at the commandment of the said Lords in full Parliament by Sir Richard le Scroop Knight Steward of the Kings House The words full Parliament signify the Lords and Commons For that Record saith the Commons prayed that all such that have surrendred any Forts c. might be put to their Answer before the Lords and Commons c. Whereupon they were brought to their Answers in full Parliament for that Offence So here I conceive the Lord Berkley being accused by the King for the murder of King E. 2. was brought before the Lords and Commons For the Commons are to be present at such arraignment as shall be shewn hereafter and the Clerk of the Crown having read the Accusation against him Allocutus fuit That is the Lord Steward of England recited the Fact whereof he was accused and demanded of him how he could acquit himself This I conceive to be the manner thereof Vide the Appeals 21 R. 2. for the form thereof I marvel the Lords permitted the Lord Berkley to wave his Peerage and put himself super Patriam Anno 4 R. 2. Sir Ra. Ferrers Knight was brought into Parliament under the guard of the Marshal of England and there arraigned on the Kings behalf for suspition of Treason c. Numb 21. In the Process against him is recorded that for suspition of Treason surmised against him he was arrested in the Marches of Scotland by Monsieur de Lancaster and other Lords Temporal there being in the said Marches and that he was brought under the said Arrest by commandment of the Lords to Answer in this Parliament to that which shall be surmised against him in special concerning certain Letters which were found and sent to the King and his Councel The Letters
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
c. Then they desired that three things might be enquired of 1. First the withdrawing the Staple from Callis by the Council and Procurement of some Privy Councellors about the King 2. Secondly of Loans to the King by way of Usury receiving again greater Sums than they disbursed wherein some Privy Councellors have been Partners 3. Thirdly of buying the King's Debts by way of Bargain some for the 10 th Peny some for the 20 th or 100 th Peny and procuring the King to pay the entire Debt to the King's loss and profit of some Privy Councellors and others of their Covyn Of which three Articles and their Dependencies the Commons said They would make farther Declaration in special whensoever it shall please the King to hear them Numb 15 16. Then follows their particular Impeachments and Accusations First Richard Lyons Merchant of London is impeached and accused by the Commons of many Deceits Extortions and many other ill deeds by him done to our Lord the King and his People as well during the time he was retaining to the King's House and to the King's Council as otherwise whilst he was Farmer of the Subsidy and Customs of the King And in special of this that the said Richard by Covyn made between him and some of the Privy-Council of our Lord the King for their private Profit and Advantage hath procured many Patents and Writs of License to transport great quantities of Wools and Wool-fells and other Merchandize beyond the Seas to other places than the Staple at Callis contrary to the Ordinances c. And so they declare of many other Villanies in great deceipt of the King and of his Court Whereunto the said Richard being then present in Parliament said c. Then follows his Answer in particular to what was particularly alledged against him and in general to what was generally charged upon him The Lords reassured him for that which was particularly objected against him and granted Commissions to enquire of the Extortions wherewith he was charged in general Then the Commissioners in like manner accused and impeached William Lord Latimer of divers Extortions Grievances Deceits and ill Deeds viz. of divers Oppressions when he served the King in Britain for being Partner with Richard Lyons c. and for loss of Towns and Forts beyond the Seas Numb 21. Item William Ellis of Great Tarmouth was impeached in this present Parliament in divers manners First by Surmise of the Commons c. Numb 11. And afterwards John Botheil and William Cooper exhibited their two Bills in form which followeth To their thrice redoubted Lord the King and to the said Council shewn c. complaining of the Oppressions of the said William Ellis unto them and others c. and their Oath was taken against him Numb 32. Item John Peecher of London Merchant was accused and impeached by the said Commons That he by the assent and aid of Richard Lyons and of other Privy Councellors for their private profit and advantage have purchased a Patent under the Great Seal of our Lord the King containing that none shall sell sweet Wines within the Francheses of the City of London but only the said John Numb 38. Item John Nevill was likewise impeached c. for buying the King's Debts c. and for loss of Towns beyond the Seas Here I observe that though the Commons complained 50 E. 3. but of three Grievances viz. of the withdrawing the Staple from Callis of Loans to the King upon excessive Usury and of buying the King's Debts yet when they who were accused appeared they declared against them for other matters also As against Lyons for new Impositions upon Wools without assent in Parliament and against the Lord Latimer for his misgovernment beyond the Seas and loss of Forts there and against Peecher for a Monopoly of sweet Wines c. I observe also that their Declaration is not made according to the strict forms of Law as you may perceive by that against Lyons wherein so many Extortions are so generally set down against him that he made no answer to them neither could c. Which Impeachment the Lords notwithstanding did not reject but supplied the defects thereof by granting Commissions to enquire thereof Ibid. Numb 20. in fine Item In this Parliament of 50 E. 3. an Ordinance was made against Women's pursuing businesses in the King's Court and especially against Alice Peirce Numb 45. I find no Accusation against Alice Peirce I only conjecture that the Commons complained of her though it be not entred for she is in the number of them whom in the next Parliament of 50 E. 3. Numb 87. the Speaker of the Commons names to be unjustly convicted in this Parliament And none were there convicted but those whom the Commons complained of Item Adam de Bury Citizen of London was impeached by the Clamor of the Commons in this Parliament of many Deceits and other ill things done to the King and to his People whilest he was Mayor of Callis and Captain of Bullingam and other ways as more at large appears in one great Bill delivered in Parliament the last day of this Parliament at Eltham And thereupon the said Adam was sent for to come to answer in Parliament and he came not neither could be found Wherefore it was awarded that all his Goods and Chattels should be put in Arrest and so it was done by Writs sent to the Sheriffs of London and Kent And the said Bill is on File with the special Petitions of Parliament 50 E. 3. Numb 11. Out of this last Precedent concerning Adam de Bury I observe two things 1. First whom they complained of The Lords sent for him only to appear before them they sent not to apprehend him as a Delinquent until he contemn'd their Demand whereof more hereafter in the Title of the Parties Answer 2. Secondly that the Commons delivered not their Impeachment that is their Declaration against the Party accused until he appeared before the Lords and then they kept it untill the last day of the Parliament in hope that he would be brought before the Lords and when they saw he could not be found they then delivered their Impeachment against him to the end as I concieve the particulars of their Accusation might remain upon Record against them hereafter Here I also observe an Error of the Clerk that he hath omitted the Proceedings against Alice Peirce John de Leycester and Walter Spooner who were all convicted in this Parliament as appeareth by the Speaker's motion to the King for their Pardons in the next Parliament 50 E. 3. Numb 87. Thus much touching the Commons Accusations and Impeachments The next Precedent is in 11 R. 2. in which Parliament the whole Commons with one assent assembled came before the King Prelates and Lords in the Parliament Chamber complaining grievously of Michael de la Poole Earl of Suffolk Chancellor of England there present accusing him openly by word of Mouth 1. First
Thar seeing by Order of the Lords House May 4. the Earl of Bristols cause should be wholly retained in this House how that might now be done in respect of the Stat. of 35 H. 8. By which it was enacted That all Treasons committed beyond the Seas as this Earls were shall be tryed in the Kings Bench or before Commissioners Assigned by the King And an Order of the upper House cannot avoid the Statute Some were of opinion that the Earl was first to be indicted before Commissioners appointed by the King and that Indictment being returned into the Parliament to be tryed thereon by his Peers and vouched that Precedent of 2 H. 6. Of Sir John Mortimers Indictment returned into the Parliament But then the Cause cannot be wholly retained in the Parliament neither can it be inferred out of the Precedent of Sir John Mortimer that the Parliament can try any of Treason unless he be Indicted elsewhere For then the Parliament should not have so much power as hath the Kings Bench and other inferiour Courts wherein Capital Offences may be both enquired of and determined Neither can Sir John Mortimers Indictment thus returned be a leading Case for Tryal of Peers in Parliament for he was but a Commoner and therefore not to have been judged by the Lords unless they had first accused him and the Commons did so by Informing the Indictment to be true before the Lords gave Judgment upon him But their can be no Precedent shewn that a Peer of Parliament hath been tryed in Parliament on an Indictment taken elsewhere To resolve this Question two things are Considerable First The Statute of 35 H. 8. Whether the meaning thereof were to limit the Tryal of a Peer in the time of the Parliament for Forreign Treasons assigned taken in the Kings Bench or before Commissioners Assigned by the King and not elsewhere But I conceive the Statute hath no such meaning The Preamble saith it was doubted whether such Treasons might by the Common-Law of the Land be enquired into heard and determined within this Realm of England For a plain remedy Order and Declaration herein to be had and made Be it enacted c. So that if such Treasons have not been heretofore enquirable by the Common-Law then this Statute provides a Remedy and Order for the same hereafter But this Statute doth not abridg the Parliament of the power it had to enquire of and determine such Treasons in time of Parliament Whereof there are diverse Precedents viz. 1 R. 2. Weston and Gomeniz 50 E. 3. for William Latimer and John Nevil 7 R. 2. for the Bishop of Norwich ibid. Numb 17. for Cressingham and Shipworth ibid. Numb 24. for Sir William Elsingham Sir Thomas Trevet and Sir Henry de Ferrers all Tryed in Parliament for matters done beyond the Seas The second thing to be considered is The Order it self which I conceive to be of force notwithstanding the Statute of 35 H. 8. for that it is neither directly contrary to the Statute nor repugnant to the Common-Law otherwise the Act of one House alone cannot alter a former Statute made by consent of both Houses And this is to be remembred that the Proceeding against a Peer in Parliament is not necessary But thus it was used to be viz. The Peer accused to be brought before the Lords and Commons and then the Lord Steward to sit in the Chancellors place on the Woolsack and the Articles to be read against him by the Clark of the Crown and upon his Answer the Lords do determine of their Judgment which is afterwards pronounced by the same Lord Steward A Question might be whether the Commons have used to sit with their Speaker at these Tryals If they have then the Court of Requests or some such place may be provided for the purpose And thus that whole Cause might be retained in Parliament notwithstanding the Stat. of 35 H. 8. Thus much touching the Accusation ex parte Dom. Regis exhibited in a formal Accusation by the Kings Atturney The Duke of Clarence was arraigned in Parliament 18 E. 4. upon the like Information but the Precedent is not in the Parliament Rolls Therefore I omit it §. 4. The second kind of Accusation on the Kings behalf is ex mandato Dom. Regis upon the Roll and view of any proceedings elsewhere against the Delinquent or upon his Petition The Precedents thereof are these Anno 5 H. 4. The Earl of Northumberland was Tryed in Parliament ex mandato Dom. Regis upon his own Petition The Accusation and manner was thus The said Earl had raised Forces to have joyned with his Son Hotspur in Rebellion against the King Hotspur was slain in the Battel of Shrewsbury 21 July 4. H. 4. before the said Earl could joyn with him Whereupon he dismissed his Forces and retired to Worksworth Castle The King after the Battel came to York and sent for the said Earl and being come pardoned him for his life but abridged him of his Liberty The next Parliament was summoned the 20 of October to begin at Coventry the 3. of December And the Earl had his writ of Summons This Parliament was prorogued till the 23. of November by new Writs as the manner then was returnable Crastino Hillarii then following But the Earl had no new Summons thither But thither he comes a Petitioner Speed saith he was abridg'd of his liberty but the Record saith he came before the King and Lords And not that he was a Prisoner as Gomeniz and Weston 1 R. 2. Nor that he was caused to be brought as a Delinquent sent for as Alice Peirce 1 R. 2. But that he came before the King Lords and Commons of Parliament And then the Chancellor told him that upon Wednesday last past he had been before the King and Lords and Commons in the same Parliament and besought the King as he had done before at his coming before him at York That the King would do him grace for his misprisions against him in not keeping his Laws and Statutes as by one Petition delivered by him in Parliament written in English The tenor whereof followeth To my most dreadful and Soveraign Leige Lord. I your humble Subject beseech your Highness to have in remembrance my coming into your Gracious Presence at York of your free will by your goodly Letters The which Petition per Commandment du Roy was examined by the Justices to have their Counsel and Advice therein But the Lords by Protestation made claimed the Judgment to belong unto them only in such Cases c. And so the Lords Tryed him and acquited him of Treason and Felony but found him guilty of a Trespass only which the King pardoned Here no Information was exhibited against the said Earl yet the Kings Counsel opened his Offences to the Lords else how could they appear Anno 7 H. 4. The King commanded the Lords Temporal in Parliament to advise what manner of Process should be made
against Henry late Earl of Northumberland and Tho. Bardolph late Lord Baron for certain ill deeds which they had lately committed contrary to their Allegiance At their meeting the Constable of England shewed them the Process made in the Court of Chivalry against Henry de Peircy upon the Articles of Treason committed by him and others of his Covyn In which Articles are named the Arch-Bishop of York Tho. Newberry Earl Marshal the said Earl of Northumberland the said Lord Bardolph and many others and their several Treasons are therein contained The Lords having advised therein and considered the proofs delivered their opinion to the King touching the said Earl of Northumberland and the said Lord Bardolph only and proceeded to Judgment against them Then the King caused to be demanded of the Lords Temporal Peers of the Realm what they would say touching the Act of the said late Arch-Bishop of York and of the said Earl Marshal who lately with a great multitude of people were armed and trained in the field within the Realm of England with Banners displayed c. Unto which demand the said Lords Temporal said That according to the Information to them given by the said Constable It seemeth unto them to be Treason yet notwithstanding the Lords desired that with good deliberation when they next returned to the Parliament they might speak thereof unto our Lord the King as no error might be found in their doings in time to come This was done on that day the Parliament was adjorned Here the Lords had no other Accusation against those two Peers but the Kings commandment upon view of former Process against them in the Court of Chivalry And the Lords declared their opinion touching the Archbishop of York and the Earl Marshal though their Treasons were contained in the same Process also least Error might be found in their doings hereafter But whether they thought their Error to be that the King had not commanded them first to advise thereon touching the said Archbishop and the Earl Marshal as he had done touching the others Let the Reader Judge For my part I think that would have been error Could the Lords proceed upon Process elsewhere unless the King commands them 2 H. 6. The Judgment against John Mortimer is drawn up very briefly by John Hales one of the Justices of the Kings Bench wherein he first shews that the said Sir John Mortimer was Indicted in London sitting the Parliament before the Lord Mayor of London and other Commissioners appointed by the King For that the said Sir John being committed to the Tower for suspition of Treason corrupted his keeper and broke Prison That the said Indictment was returned into Chancery Ex mandato Dom. Regis and by the Chancery brought into the Parliament before the Duke of Gloucester the Kings Protector and the Lords Temporal the King being then an Infant And the Protector being Authorized by Commission to hold the Parliament de Precepto Dom. Regis That the said Sir John Mortymer by Vertue of the Writs was brought before the said Duke and Lords and Commons That the said Commons affirmed the said Indictment to be true and desired Judgment against him as convict of Treason and Felony And lastly That he was thereupon adjudged In this is set down all the essential parts of the Lords proceedings against Mortymer The Ceremonious or formal parts thereof are omitted as who complained of or accused Mortymer to the Parliament The King or the Commons did not for then there needed no Indictment And therefore it must move for the King either before the Indictment or rather upon the Return thereof unto the House For had the Accusation been before the Indictment it had been a shorter way to Arraign him also before the Commissioners in London he being no Member nor Peer of Parliament then to return the Indictment into the Chancery and then be brought into the Parliament Here is also omitted the Conference before hand between the Lords and Commons touching this matter For it is very unlikely that the Lords did suddainly send for the Commons and then abruptly read the Information before them and they as suddainly affirm the same all these are necessarily understood That the Commons affirmed the Indictment e. It appears that the Lords cannot of themselves Judge a Common Person for an Offence for he is no Peer according to that of 4 E. 3. Numb 26. The manner of Accusation by Information Ex parte Dom. Regis is when the Commons as any other private Person accuse any man unto the Lords in general but do not declare the Offences in particular other then by the Commandment of the King Articles are drawn up against the Delinquent Ex parte Dom. Regis The Precedents are these 2 R. 2. The Constable of the Tower was commanded to bring Gomeniz and Weston whose Offences were complained of in general by the Commons that they named before the Lords in Parliament to Answer to the Articles objected against them on the behalf of the King and they were severally arrained at the Commandment of the Lords c. Eodem anno Alice Pierce being complained of by the Commons was accused and commanded to come before the Lords in Parliament to Answer to certain things objected against her on the Kings behalf And here upon Sir Richard le Scroope Chief Steward of the Kings House by Comandment of the Lords rehersed in Parliment in the presence of the said Alice a certain Ordinance c. Made in the Parliament of 50 E. 3. against her And this Rehersal being made the said Steward surmised unto the said Alice That it seemed to the Lords of the Parliament that she had incurred the pain comprised in the said Ordinance in certain points and especially in two That is to say c. By these two Precedents it appears plain enough that the Lords commanded the Articles to be drawn and exhibited though ex parte Dom. Regis for all these are said to be done by their Commandment And the practise at this day is that out of the Complaints of the Commons as of Mompesson The Lord Chancellor and the Lord Tresurer and a Committee of the Lords did draw up the Charges But they wanted the words Ex parte Dom. Regis The reason why in this Cause the Articles are Ex parte Dom. Regis seemed to be this The Commons complain but impeach not Notwithstanding the Impeachment the Lords cannot proceed neither can they Impeach any to themselves So it rests that the party is to be Impeached at the Kings Suit It may be lawful for me to examine the proceedings of the Lords in the Complaint against Mompesson and to compare them with ancient Proceedings in like Cases And they will appear to differ much And touching Mompesson the Commons did not only complain but accuse him He fled in his absence they ought to have proceeded to Judgment against him before Proclamation first made for him to appear before the
King and then at a day the ancient use in such Cases was this The Lords considered of the Complaint and examined the Proofs produced by the Commons Then agreed on their Judgment and caused Proclamation to be made throughout England for the party to appear at a day else Judgment shall be pronounced against him with which the Commons are to be acqnainted before the Proclamations are sent for Then the Return of the Proclamations to be reviewed and examined and if any Errors be therein new Proclamations are to be made in the next Shire only for the party to appear at a short day If they find no Errors in the Return then Judgment is to be pronounced and not before Thus it was in 21 R. 2. in Thomas Mortymors Case c. In 7 H. 4. in the Earl of Northumberlands Case But there needed no Articles to be drawn up Ex parte Dom. Regis out of the Impeachment of the Commons for the Suit is theirs and not the Kings Touching the Lord Treasurer First the Commons did swerve from the Ancient Course in this they delivered not their Accusation in writing he being absent Had it been in the open House an Impeachment by word of mouth had been sufficient and the Suit had been theirs but it being at a Committee how could the Lord Treasurer take notice of their Impeachment wherefore the Lords of necessity did draw up a Charge against him out of their Accusation and then it became the Kings Suit and they were abridged of their power to reply or demand Judgment Prout in Weston Gomeniz Case 1. R. 2. And Alice Peirce ibid. Neither was it now necessary for the Commons to be acquainted with the Delinquent's Answer or any of the Proceedings for that they neither demanded he might be put to his Answer before the Lords and them nor impeached by word in open House nor in Writing One of which is required in an Impeachment And the Lords they varied in this that they did mingle other Complaints with these of the Commons when each should have been apart of it self prout 43 E. 3. Sir Joh. at Lees Case Neither did the Lords anciently use to omit any part of the Commons Complaint and Accusation as they did the Imposition on the French-Wines And the Articles of the Charge they sent to the Lord Treasurer ought to have been examined ex parte Domini Regis prout in the former Precedents of 1 R. 2. The next Precedent is 7 R. 2. upon the Demand of the Commons against the Bishop of Norwich and others §. 5. Of Accusation by Complaint of private Persons I do not remember any Precedent of this manner of Accusation for publick Offences unless the Parties Complainant be particularly interessed therein yet I doubt not but such Complaints have been and may be received and the Parties proceeded against in Parliament or else that High Court should not have so much Authority to receive Information pro Domino Rege from private persons as the Inferiour Courts have But what hath been done shall appear I will omit all Complaints of particular wrongs evcept it be of Bribery Extortion or Oppression in Men of Authority Anno 43. E. 3. William Latimer exhibited his Petition in Parliament unto our Lord the King and to his Council shewing that he had the Wardship and Marriage of the Heir of Robert Latymer by mean Grant from the King and held the same until Monsieur John at Lee then Steward of the King's House sent a Serjeant at Arms to bring them to London and commanded him being come not to depart without his leave upon payment of 1000 l. and afterwards would not give him leave to depart until he had surrendred the Body of the said Heir and the King's Patent unto him the said Monsieur John at Lee and thereupon the said John was put to reason before the Lords c. no. 20 21. and also the said John was put to reason before them for this When he was Steward of the King's House he caused divers to be attached by their Bodies some by Serjeants at Arms and some otherwise as W. Latymer and others to be brought before the King's Council c. n. 22. and also for executing the Authority of Steward out of the Verge n. 23. and also for discharging out of Newgate by his own Authority and against the Judges Commandment Hugh Levenham an Approver who had appealed several men of Felonies c. n. 24. and also that he being sworn by the King's Councel did bargain with Nicholas Levayn for the Mannor of Cainham in Kent which the faid Nicholas claimed to hold during the Minority of John Staynton whereas the said John at Lee knew the same was never holden of the King in Chief of the Castle of Dover n. 25. These be the Particulars wherewith the said John at Lee was Charged It appeareth W. Latymer accused him at the first but not the rest and I imagine that the Commons accused him of the Second and other Particulars for that they are said somewhat generally and are offences against the Liberties of the Commons and also for that divers of the Commons were present at the hearing And for the Fourth and Fifth Particulars I conceive the King's Councel accused him thereof for that one is an Offence against the legal Proceedings of Justice which then was that of the Approver viz. He which accuseth any one of Felony c. should remain in Prison as well as the accused until Trial. Of later times the Accuser puts in Sureties to prosecute and the other Offence is a partiticular wrong done unto the King in his Revenues And had any private person accused him of this their Petitions would have been recorded as well as Latymer's But the Lords proceeded against him upon Latimer's Accusation and then upon the rest severally and they did not mingle one with another Anno 50 E. 3. The Commons accused and impeached W. Ellis n. 31. and afterwards John Botheil and W. Cooper exhibited their Bills against him to this effect To their Thrice Redoubted King and to his Sage Councel sheweth John Botheil of London That the Monday next after the Ascention in the Fortieth Year of our Lord the King that now is a Ship of Scotland in Pruse was chased by Tempest into Likebread whereof the Master's Name is Henry Luce Charged with divers Merchandizes c. and that the same day one William Savage Clerk and Servant to William Ellis by Command of the said William took of the said Ship for the Merchandizes not discharged there 17 Nobles and a Last of c. and because that W. Ellis knew that W. Cooper was to come to the Parliament and shew these and other Grievances in aid of the Merchants and also to shew how the great Prices of Herrings might be amended in aid of the whole Realm the said W. Ellis by false suggestion caused the said W. Cooper to be Arrested and put in Prison in
said Mortymer having notice thereof withdrew himself among the wild Irish where the same Serjeant nor any other Officer of the King 's durst come for fear of Death Wherefore and for that his Offences are notoriously known both to the Lords and them they prayed Judgment c. The King the Lords and the Procurators of the Clergy considered of the Request of the Commons with good deliberation and then the Lords with the said Procurators by the assent of the King and Commons did award that Proclamation should be made through England and Ireland commanding the said Tho. Mortymer to render himself in proper Person to the King in what place soever it shall be in England within three Months after the 23th Day of December next coming to be at his Answer and they farther awarded That if he came not c. that then he shall be judged Traytor and Convict of of all Treasons whereof he is accused and shall forfeit c. Then the King adjourned the Parliament and the Appellants to the 15th of Hilary next at Shrewsbury on which Day the said Appellants declared to the King That it was awarded that Proclamation should be made c. ut supra The Commons did the like And for that the said Tho. Mortymer came not they had judgment In 7 H. 4. The Lords agreed this Judgment against the E. of North. and the Lord Bardolph who were fled to the Rebels in Wales and Proclamation ut supra throughout England At the day prefixed they examined the Returns of the Proclamations in the presence of the Commons and so the Judgment was agreed on in their presence also and so it ought to be in all Cases of Life and Death And finding a small Error they awarded new Proclamations in London only and the Return thereof was again viewed and considered in the presence of the Commons and then on the next day Judgment was given Eodem Anno 21 R. 2. The Lords Appellants accused also the Duke of Gloucester of Treason and although they knew he was dead they prayed the King that he might be brought to his Answer Whereupon the King sent his Writ to the Council of Calice unto whose Custody he committed the said Duke to bring him into the Parliament to his Answer The Captain returned his Writ That the Duke is dead the which Writ and Return being read the said Appellants prayed Judgment and the Commons shewed That the Dukes Levying War against the King's Person is notoriously known to all the States of Parliament and therefore they desired Judgment also and had it And what may not the whole Parliament do when they joyn in one Yet notwithstanding the King fearing some Error as it seems the Lords Appellants besought the King that if there were any thing on Record be it by Confession or otherwise which concerned their Appeal that it might be openly known and shewn in full Parliament Whereupon by the King's Commandment was read a Commission granted unto William Richal Justice of the Common-Pleas and a Confession of the Duke of Gloucester made before him by vertue of the said Commission yea and Richal himself being commanded did justifie that the Duke did write the Confession with his own hand in his absence and afterwards read it unto him so careful they were to have something to supply an Answer I marvel that Richal was acquitted of his Proceedings herein at the next Parliament of 1 H. 4. where he affirmed that much of this Dukes Confession was altered after he had returned his Commission He well deserved to die in that he spake not of it Yet there is one Precedent directly contrary to all this viz. 11 R. 2. in that Appeal which happened on this occasion The aforenamed Duke of Gloucester and four other Lords went to the King and accused the Duke of Ireland the Archbishop of York Michael de la Poole and others of Treason the King adjourned them to the next Parliament promising them Justice there and in the mean time conveyed away the Parties accused and then by Proclamation Part 8. fol. 603. in the next Parliament 11 R. 2. the Articles of the Appeal being read the Duke and other Appellants offered to make proof thereof and required that the Parties appealed might be brought to their Answers and for default of Appearance demanded Judgment Whereupon the King did deliberate with the Lords and commanded the Justices and other Sages of the Law to give their best Counsel to the Lords how to proceed rightly in this Matter of Appeal who after Consultation therein had answered the Lords That they had seen and considered the Tenor of this Appeal which they said was in no point made and declared according to the Order of the Common or Civil Law But they gave no Answer touching the Demand of Judgment for default of Appearance whereupon the Lords deliberated and after by the Lords assent declared that this Cause committed by the Peers against the Person of the King and State of the Realm shall be determined in the Parliament only and by no other Law than by the Law and Course of the Parliament And that it belongs to the Lords only to judge in such Cases And with the assent of the King they did judge the same Appeal and the Process thereupon depending to be good according to the Law and Course of Parliament Then the Lords Appellants proceeded and desired to have the fault of Appearance recorded and Judgment given and so it was So likewise 21 R. 2. After the King had given the full power of Parliament to determine all Matters begun into the Hands of twelve Lords or six and six Commoners or any three He adjourned the Parliament from Westminster to Shrewsbury in 15 Hil. and there on March 22. It was shewed to the King how that Robert Possington was impeached at the Parliament at Westminster for being with the Duke of Gloucester in levy at Herring An. 11 R. 2. For which the said Duke was adjudged as Traytor and therefore they brought the King to ordain the like Judgment against Robert Possington though he was dead Whereupon our Lord the King by the assent of the Lords and Knights of Counties having power c. awarded the said Robert guilty c. And that he shall forfeit c. But these extraordinary Precedents cannot lead us into the ordinary course of Proceedings and I alledge them only so as their Errors may be avoided § To conclude it is the just and constant Course of Parliament to bring the Party accused to his Answer yea though he fly Justice yet to send out Proclamations into the Countries that he appear at a Day or else such and such Judgments shall be given against him I confess this Course was omitted in the Judgment against Mompesson 18 Jac. and haply it was not then thought upon the Judicature of Parliament being so long out of use and therefore that cannot be alledged as a leading Precedent And in
said unto the said Sir Ralph That forasmuch as the Matter stands so much upon Treason That by the Law he ought not to have Councel in his Case of no earthly Creature but obliged himself to answer at his peril This last Answer was given upon deliberation And 5 R. 2. Numb 44. Sir Richard Cogan Knight being accused by Richard Clevedon Esquire for extorting 200 l. from the Prior of St. John's of Jerusalem in a riotous manner required Councel which was denied him for that the Cause touched Treason 28 H. 6. The Duke of Suffolk being accused of Treason by the Commons desired Copies of the Articles but no Councel and he answered without Councel Primo Car. 1. In the Parliament begun Febr. 6. The King's Attorney exhibited Articles of Treason and misdemeanor against John Earl of Bristol and he had no Councel allowed him which was on this occasion Anno 21 Jac. The Earl of Middlesex was denied to answer by Councel touching Misdemeanors only that Precedent of 10 R. 2. of Michael de la Poole being mistaken as I conceive And afterwards the Lords considering the Inconveniences that might happen thereby did order that Councel should be allowed to all Delinquents in all Cases generally At the Voting of which Order the King and Prince were present and I did expect some Reply thereunto on the King's behalf and especially observed whether the Prince would any ways dislike of it either in Words or Countenance and he shewed none which made me verily believe that he had been acquainted therewith beforehand but he was not as I shall make it appear In this present Parliament upon reading the Articles of Treason and Misdemeanors against the said Earl 6 Maij and upon the Earl's Answer to them on the sudden The Journal is The Lords did answer that he should have Councel allowed him to plead his Cause But on Monday the 8th of May the King sent a Messenger to them That he not suing for a Default in Cases of Treason and Felony It is an ancient fundamental Law of this Kingdom and desired the Lords to proceed with that Caution that ancient fundamental Laws may receive no blemish nor prejudice On the 15th of May the Lords answered this Message That by an Order Dated May 24. 21 Jac. Anno 1624. Counsel was then present and they had allowed the Earl of Bristol Councel before the Message came May 14. His Majesty is content the Earl of Bristol to have Councel although his Majesty knew that by the Law he ought to have none but takes Exceptions to that Order of the 24th of May 1624. That it was occasioned by the Earl of Middlesex whose Cause was only Criminal which never till now extended to Cases Capital And that the Judges were neither advised with therein nor the King's Councel heard for his Majesty and therefore his Majesty is not satisfied about the general Order but will advise c. The Lords thereupon allowed him Councel to plead c. This Parliament of 6 Feb. 1 Car. 1. was dissolved before the Cause of the Earl of Bristol was heard and determined and that the said Earl was sued in the Star-Chamber for the very same Matter contained in the Articles against him in Parliament All which were but Misdemeanors And if it be lawful for me to speak freely I believe the Lords thought they were but Misdemeanors when they allowed him Councel in Parliament But in Cases of Misdemeanors only the Party accused was never denied Councel Anno 10 R. 2. The Commons accused Michael de la Poole of many Misdemeanors in open Parliament before the King Afterwards in the King's Absence the Chancellor said first to the Lords That he was Chancellor of England and for the time represented the King's Person in his absence and demanded whether he ought to answer in the Presence of the King since he was impeached of Acts done whilst he was Chancellor This received no Answer Secondly He said That he had appointed by the Advice of his Councel Monsieur Richard le Scroope his Brother-in-Law should have the words of his Answer to the first Impeachment Whereunto the Lords said That it was Honest for him to speak by his own mouth And thereupon he made Protestation that he might add to and take from that which should be honourable and profitable for him The which things unto him were granted And the said Chancellor declared as well by himself as by the mouth of the said L. Scroop That c. I note here that Councel was not denied him but that it was only told him It was honest for him to answer by his own mouth Anno 7 R. 2. The Bishop of Norwich for Misdemeanors in general Numb 15. was particularly charged by the Chancellor Numb 18. The Bishop said That albeit in this Case he ought to have Counsel yet making Protestation That at all times he might amend his Answer he would answer in person and so he did Numb 19. Anno 1 Car. 1. The Duke of Buckingh being accused by the Commons of Misdemeanors and Copies of the Impeachments and Answered by Councel in this manner viz. Die c. The Duke being in his Place and standing his Councel came to the Bar and then read the Dukes Answer as it was penned in writing Yet sometimes in Cases of Misdemeanors when the Party accused hath demanded the Copies of the Articles and Councel and Time to answer the Parliament hath compelled them to make a present Answer without Councel but this is rare and I have seen but one Precedent of it Anno 5. R. 2. Die Animarum Numb 45. The Mayor Bayliffs and Commonalty of Cambridge were accused by c. For that they in the late Tumults and Wars confederated with other Misdoers did break up the Treasury of the University and compelled the Chancellor and Schollars to release to the Mayor all their Liberties and all Actions c. In Num. 46 47. Several Writs were sent to command them to appear They appearing at the Day and answering to such Articles as were objected by the King's Councel and delivering in the two Releases which were cancell'd Numb 48. Then the Chancellor and Scholars exhibited divers Articles against them by way of Petition Upon the reading whereof it was demanded of the said Mayor and Burgesses what they would say why their Liberties should not be seized into the Kings hands as forfeited And they required Copies of the Articles and Councel and Respite to answer Numb 54 55. To the Copy of the Articles it was answered That inasmuch as they had heard them read it should suffice for by the Law they ought to have no Copy And touching Councel it was said That wherein Councel was to be had they should have it and therefore they were then to answer to no Crime nor Offence but only touching their Liberties Numb 56. After many dilatory Shifts the said Burgesses submitted themselves to the King's Mercy touching their Liberties only saving
their Answers to all other matters Numb 57. And the King by assent of the whole Parliament granted the assize of Bread and all weights Measures c. to the Scholars and to the rest of the Burgesses yielding and increase of Rent 59. 6. And there is no farther proceeding against them for other Crimes yet this also proves Counsel ought to be allowed in Cases of Misdemeanor §. Next to the Answer follows the Replication and that in my opinion belongs to the Party whose Suit it is If the Commons impeach any man it belongs to them if they will reply And to this end either they are all or some of them to be present when the Party makes his Answer and to consider thereof apart by themselves and to reply if they see cause Or else a Copy of an Answer is to be sent them and their Replication expected before any other Proceedings be If they do not reply the Lords may But if the Articles against the Party be so drawn ex parte Domini Regis then it belongs to the King and the Lords alone And the Commons can neither reply nor de Jure demand the Party to be put to his Answer All this will appear in the ancient Precedents which follow Anno 50 E. 3. They impeached Rich. Lyons for procuring Patents and Licenses c. to carry c. to other places than to Calice For divers other new Impositions upon Wools c. For levying the same to his own use without view of a Comptroller for 20000 Marks in London for the King and causing the King to repay 30000 Marks For buying of Debts of the King at the 20th penny and less and causing the King to pay the whole Debt In general words For many Extortions c. His Answer is First to the third part and pleads Not Guilty which he is ready to prove To which nothing is replied To the several Impositions He confessed he levied 12 d. on every Sack of Wool licensed to his own use but by express Commandment of the King and Assent of the Merchants And for other several Impositions That he had paid them wholly to the King's Chamber and fully accompted for the whole year Unto this part of his Answer also there is no Replication recorded it is drawn up so briefly yet these which follow shew somewhat of what was replied viz. And it was said unto the said Richard that he should bring forth his Warrant by what Authority he did these things But he shewed no Warrant in Parliament under the King's Seal nor otherwise but only he said he had Command from the King himself and his Councel to do it Now whether the Lords willed Lyons to shew forth his Warrant upon the Reply of the Commons or otherwise it appears not by conjecture out of other Precedents Eodem Anno The Commons impeach the Lord Latymer That contrary to the Proclamation upon the last Truce with the French he and his Lieutenants and Officers have taken divers Victuals by force without paying for the same and that he extorted great Fines and Ransoms of divers Persons and Parishes of Betherel in Brittayn whilst he was Captain there for which he hath answered nothing to the King And for the Loan of 20000 Marks made to the King by him and Richard Lyons to transport Wool c. And also through his ill Government the Fort of St. Saviours in Normandy and the said Fort in Normandy called Betherel and many more are lost And also that he of his own Authority discharged Spies and Fellows imprisoned by the King wherein he encroached to himself Power Royal. This is the Effect of the Impeachment the Answer follows First He said That saving to himself so much as ought to be saved unto him as one of the Peers of the Realm as well in giving Judgment as otherwise in time to come And if it please the King and Lords here Assembled he will willingly give his Answer unto him who will in special object any other thing against him It should seem that the Commons advised hereon for it followeth Et puis presentes Forasmuch as no person would in special openly accuse the said Lord vouching the said things in Parliament but that the Commons would maintain the said Judgment in common he answered to each Particular 1. Touching the Ransoms that he hath been before impeached for and the Sums of Money he received it appeareth that he owed the King 2000 l. which he confessed and submitted himself to the King's Grace for the same And soon after this the Commons having heard this Answer of Submission prayed the Lords that Execution might be had of the said 2000 l. presently against the said L. Latymer as a thing past by the said Submission being made by him as aforesaid for it shews not any agreement made with the King nor any Pardon or other Discharge And the Lords answered That his Answer should be reported to the King and thereupon Right shall be done for the King 2. Touching the Acts done by his Lieutenants he said That he is altogether innocent c. For he was then in England by the King's Command and he had no part thereof c. And the Commons thereunto replying said That although he be innocent yet his Lieutenants receiv'd it in his Name and therefore prayed he might answer to the King for his Lieutenants if they be not able c. 3. Touching the Loans of 20000 Marks he absolutely denied he had any share or advice therein he made in a manner a Negative Answer to all the rest offering Proofs whereupon witnesses were examined but no other Replications of the Commons mentioned Eodem Anno 50 E. 3. W. Ellis was impeached by the Commons for that he being Farmer to the King of the Petty Customs in Yarmouth and Deputy-Farmer to Rich. Lyons of Tonnage and Poundage c. he extorted several Sums of Money from the Merchants and particularly 33 l. from a Scotish Merchant at Kirkbread who was driven in thither by a Tempest but unladed no Merchandize there The said Ellis answered in general He had never taken any thing of the said Merchants by way of extortion which he was ready to prove The Commons brought in four Witnesses who justified the Extortion upon Oath and then demanded Judgment And W. Ellis rejoyn'd to this Replication confessed the Receipt of the 33 l. and avoided the Extortion Eodem Anno John Nevile was impeached by the Commons for that he as Officer to the King and one of his Privy Councel had brought divers Tallies of Assignments made by our Lord the King unto divers persons unto whom he was Debtor and had thereof due allowances in the Exchequer but the Parties had of him little or nothing and especially of the Lady Rovensholme who is deceased and of Reignald Love And after he was impeached for that in this late Voyage into Britayn in the King's Wages in great number