of these several Offenders But admit they had particularly impeached every one of them which is more then to desire such a Delinquent may be brought to his Tryal and that the Lords would do Justice on him as they find Cause and much more then onely to design the Crime and leave it to the Lords to find out the Persons For in an Impeachment they examine the matter and first find themselves the Party to be guilty and then they follow it against him and prove him so before the Lords Doth this at all give them any part in the Judgment or must it not necessarily be understood that the Judicature is naturally and constantly lodged with the Lords and the House of Commons part then is onely to bring the Offender before the Lords to be tryed This very Record of the Proceedings in the Lords House against Gomeniz and Weston shews it so to be and proves the Judicature of the House of Peers as strongly as can be It runs thus Item par la ou supplié est par les Communes que tous ceux qunt rendus perdus Chatels ou Villes par dela par uray defaut des Capitaines puissent estre a Response a Cest Parlement selon leur desert fortement punis par agard des Seigneurs Baronage eschievant le malueis ensample qils ont donnez as autres qui sont Gardeins de villes Chatels Commandé est a Sire Alein de Buxhall Conestable del Tour de Londres qe y face venir deuant les Seigneurs en Parlement a Westminster le Vendredy 27 Jour de Novembre lán susdit Jehan sire de Gomeniz William de Weston c. Item Whereas it is prayed by the Commons that all those who have delivered up and lost Castles and Towns on the other side of the Sea by their own default being Captains of them may be put to their answer at this Parliament and according to their desert be severely punished by the award of the Lords and Baronage for the eschewing of the evil example which they have given to other Guardians of Towns and Castles Command is given to Sir Allen de Buxhall Constable of the Tower of London to bring before the Lords in Parliament at Westminster upon Friday the 27th of November of the aforesaid year John Lord of Gomeniz and William of Weston c. Here the Commons desire that all such may be severely punished by the award of the Lords and Baronage So it is their Award and their Judgment must punish and this by the Commons confession And you may observe further that the Commons do not make any mention of any particular Person but the Lords they command Sir Allein de Buxhall to bring Gomeniz and Weston before them such a day But it is easie to trace the Author of the Pamphlet where he was led out of the way and that was by an other Pamphlet of the Priviledges of the Baronage which goes under Mr. Seldens Name but hath as many mistakes in it as leaves and there indeed it is said p. 15. That at the supplication of the Commons that all those who have rendred Castles be put to their Answer and that Allen Buxhall Constable of the Tower do bring before the Lords such a day Gomeniz and Weston to answer the Articles which there shall be preferred for the said Cause they were so brought c. But the Record it self you see is otherwise which that Pamphleter it seems never read And for what he further would infer to make that and all other Judgements at the prosecution of the Commons admit they had been so which these were not Acts of Parliament is a Fancy so ridiculous as it is not worth the answering which makes no difference betwixt an Act of Attainder that passeth both Houses and afterwards hath the Kings Assent as all other Laws have which is an effect of the Legislative Power in which either House hath an equal Vote and a proceeding before the Lords against a Criminous Person in a Judicial way wherein the Commons have nothing to do as to the judging of him But one thing more in that Pamphlet I cannot let pass which is in p. 12. The words are these viz. For the Kings giving Judgment in Parliament with the Lords Assent I do confess Judgements there ought to be properly and punctually entred as given Par nostre Seigneur le Roy que est Souverain Juge en tous Cas par les Seigneurs Spirituels Temporels ouel Assent des Communes de la Terre ou a leur Petition Nenny par les Seigneurs Temporels Seulement That is As given by our Lord the King who is Sovereign Judge in all Causes and by the Lords Spiritual and Temporal with the assent of the Commons of the Land or upon their Petition and not by the Lords Temporal alone And for this he quotes in the Margent Rot. Part. apud Leicester II. 16. which he delivers so Magisterially as any man would swear he had good Authority for what he said and that his old French was some old Oracle of Parliament And I must confess upon the first reading of this I was at a stand finding here such a positive Precept contrary to what I had still believed both in the Affirmative it must be by the Kings and Lords with the Assent of the Commons and Negative not by the Lords alone But when I came to examine this Assertion by the Record I found there was a foul mistake whether purposely or ignorantly I judge not For what was delivered by Counsel to bolster up his Clients pretentious is there produced as the Rule of the Court And an Error assigned to reverse a former Judgment which is but the Allegation of a Lawyer that draws up his Clients Plea is made an Argument to controul and condemn a constant usage of the House of Peers It was in the Case of the Earl of Salisbury Who brought a Writ of Error in the Parliament 2. H. 5. to reverse the Judgment given 2. H. 4. n. 30. by the Lords Temporal alone with the Kings Assent by which Judgment the Earls of Kent Huntington and Salisbury and some others who had been some slain some taken in actual Rebellion by other the Kings Subjects and by them put to death without form of Law were declared attainted of Treason and their Estates forfeited For the reversal whereof Thomas the Son Earl of Salisbury amongst the Errors assigns this for one as a principal one that it was given by the Lords Temporal alone with the King whereas it should have been by the King Lords Spiritual and Temporal with the Assent of the Commons or at their Petition And what follows upon this Indeed if the Judgment had been reversed though perhaps upon some other Error for several others were assigned there might have been some colour for the Gentlemans Assertion and the Inference he would make upon it But so far from it that the Judgment
from the Ships worth and other particulars in a Schedule would have rendred alone above 20000 l sterling yearly Yet I submit that and my whole Sufferings and Concerns to your Lordships Determination in hopes That if I do not receive an adequate Recompence yet I shall by his Majesties Grace and your Lordships direction be enabled by the restoring of my Island Barella in India to reap a future benefit without the East India Companies further molestation or interruption His Majesties late Charter granted the third of April 1661. prohibiting the Company expresly to undertake any thing against any Christian Colonie setled in India before the date thereof October the 6. 1666. Signed Thomas Skinner THe Lords Referrees finding this vast disproportion between the demands and Pretences of the Petitioner and the real loss and damage which he had sustained and the Offers on the other Side of the Company for his Reparation and Satisfaction and seeing no possibility of reconciling them though much pains had been taken in endeavouring it at last resolved to report it back to the King and Councel and made their Report as followeth IN pursuance of his Majesties Order in Councel dated the three and twentieth of March last we have treated with the Governor and Company of Merchants trading into the East Indies and have heard the Councel both of the said Company and Thomas Skinner Complainant in the disquisition whereof we found the said Thomas Skinner to have suffered much wrong by the said Company and their Agents and therefore endeavoured to perswade the said Company to give satisfaction to the Petitioner but there being a great difference between the Petitioners Demands of Reparation for Damages and the Companies Offer towards the same our Mediation proved ineffectual therein As to the Island of Barella in the East-Indies claimed by the said Thomas Skinner We conceive that he ought to enjoy the same and from thence to trade into any part of the world except into England Given under Our Hands the sixth day of December 1666. Signed Gilb. Cant. Clarendon C. J. Roberts Ashley HIs Majestie upon this finding the East-India Company would be brought to no reason thought fit to recommend the business to the House of Peers to do the Petitioner Justice according to the merits of his Cause which Message was brought to the House the 19. of January 1666 by the Lord Privy Seal and all the Proceedings in Councel transmitted thither and withall a Petition from Skinner himself was presented to them setting forth the wrongs done to him by the East-India Company The House of Peers thus possessed of this business Order a Copy of Skinners Petition to be given to the Governor and Company and they to bring in their Answer to it upon Friday the 28 of January They accordingly bring in for Answer a Plea to the Jurisdiction of the House of Lords and say That the Petition is in the Nature of an Original complaint not brought by way of Appeal Bill of Review or Writ of Error nor intermixed with Priviledge of Parliament nor having Reference to any Judgement of that Court therefore offer If it will please to take any further Cognizance of that Cause And then plead over and say That the Company was incorporated by several Charters in the Reignes of Queen Elizabeth and King James and likewise by a Charter from Oliver which excluded all others not Members of the Corporation from trading in any part of the East-Indies within the limits of the said Charter and that therefore if any such Injuries were done it was by vertue of the Charter and whether Criminal or Civil they were for ever released and discharged by the Act of Oblivion The Lords upon debate of this Plea well knowing their own Right to retain even Original causes when accompanied with such Circumstances as this then before them had A poor man oppressed by potent Adversaries by a rich and numerous Society where there was a Peer of the Realm the Lord Berckley of Berckley Gentlemen of great Estates very many wealthy Merchants incorporated in one body driving on a great trade in the Indies with one joynt stock resolved to imploy that whole stock for the destruction of any man that should presume but to touch upon that trade without their leaves which was this poor mans Case in a time when he had been encouraged thereunto by a general Liberty then taken to trade in that Country who after the spoyle of his goods and Plantation there to save his life they having beset his passage by Sea was glad to expose himself to the hazard and charge of a Journey of many thousand Miles over Land to return into England that he might here endeavor to get some reparation for all those losses which that Company with their great purse and power opposed and had already made him spend that little Estate he had left and seven years attendance to prosecute that reparation without any fruite So as to go to Law with them and abide all the delayes and formalities even of the ordinary Proceedings at Law much less what such Adversaries would have raised to him he was no waies able The Lords I say knowing all this and that what was pretended of the Indemnity by the Act of Oblivion was of no validity that Act not at all intended for things of this nature betwixt party and party not relating to the Warr made no difficulty to over-rule their Plea and enter into the disquisition of the Fact and to do the poor man Justice and give Releife if they found cause for it as a work worthy of them much conducing to the administration of the publick Justice of the Kingdome and most agreable to the constant practice of that House from the very beginning of Parliaments Wherefore they appointed Tuesday the 24 of January for the Counsel of both sides to be heard at the Barr. But such art was used so many delayes cast in by the Company and their Counsel as the cause could not be brought to hearing during all that Session of Parliament At the next meeting of the Parliament in the year 1667. Skinner renued his suit and presented a Petition the 30. day of October In haec verba TO THE RIGHT HONOURABLE c. The Humble Petition c. THat in the year 1657. Private Trade being open in the East-Indies the Petitioner set forth his ship Thomas on a trading voyage to the said Indies where being arrived in 1658 he possessed himself of a Ware-house on the River side of Jamby on which his ship rode wherein he put a great part of his goods and also had a house at Jamby and goods therein and purchased of the King of Jamby the Island of Barella and built a house for habitation and had contracted for planting of Pepper and other Commodities thereon That in May 1659. the Agents of the Governour and the Company of Merchants of London trading into the East-Indies by direction of the said Governour
Subjects shall commit Treason though out of the Limits of this Realm it shall be tryed in any place that the King shall appoint by Commission under the great Seal So a special Commission was to be issued for it And several other Statutes were afterwards made of the same Nature But for Trespasses as this of the East India Company against Skinner there is no Act of Parliament to authorise the Prosecution at Common Law nor I think any Book Case to warrant the practice of it Book Cases against it there are many even for Trespasses in the Isle of Jersey though within the Kings Dominions because a Venire Facias could not go thither to summon a Jury from thence Mich. 42 as Mr. Prin cites it or 41. as Sir Edw. Cook E. 3. Coram Rege rot 109. An Inhabitant of Jersey complains to the King and Councel of false Imprisonment and several Injuries done him in the Island They send this Bill of Complaint to the Judges of the Kings Bench and there the Bill is dismissed Quia compertum est saith the Record quod negotium praedictum in Curia hic terminari non potest eò quod Juratores Insulae praedictae hic venire non possunt c. Other Cases there are of the same nature And if a Fiction could not help for Jersey being part of the Kings Dominions much less could it help for Forein parts where the King had no Authority at all Yet the House of Lords hath in all times exercised Jurisdiction upon Crimes done and committed in Forein parts as well as those within the Kingdome both Treasons and other Offences As in the Cases of the Lord Latimer for the loss of St. Saviour in Normandy and Oppressions done by him in Britany 50. E. 3. n. 21. Of William de Weston for the surrender of Outherwick in Flanders 1. R. 2. n. 38. John de Gomeniz for Ardes 1. R. 2. n. 40. Pierce de Cressingham and John Spickworth for the Castle of Drinkham in Flanders 7. R. 2. n. 17. The Bishop of Norwich for not doing Service beyond Seas according to promise and as he ought to have done for delivering up Graveling to the French not mustering his Army at Calice as he should have done and not having his Number compleat n. 18. Sir William Elinsham Sir Thomas Trevit Sir Henry Ferrers Sir William de Hurnedon and Robert Fitz-Ralph for delivering strong Holds and Fortresses for Money n. 24. John Hall a Servant to the Duke of Norfolk for Murthering the Duke of Gloucester at Calice 1 H. 4. n. 11. Sir William Richill for but taking the Examination of the Duke of Gloucester at Calice 1 H. 4. n. 93. And multitudes of others who could not have been tryed by the Common Law were tryed by the House of Lords And in truth a man may say the whole Case of Skinner in every point of it was only cognisable before them However it being out of all dispute even by the Confession of the Judges That some things in it are not tryable in Westminster Hall I hope it may be thought reasonable to leave as great an extent of Power to the House of Peers which is the supreme Judicature of the Kingdome as to the Court of Chancery where the ordinary practice is to retain a Cause when there is Equity in any part of it The Lords therefore Ordered the hearing of the Cause spent several daies in it and having with much patience heard all that could be said on both sides appointed a day to consider what was fit to be done super totam materiam Upon which day after a solemn debate they came to this Resolution only in general That Thomas Skinner was to be relieved by that House And referred it to a Committee to consider what damages he had sustained by the Governour and Company trading to the East Indies and to report their Opinions what Recompence was fit to be given him for the same Whilest the Business was under the consideration of the Committee and before the House of Peers had made any Determination of it a Petition was said to be presented by the East India Company unto the House of Commons which I will set down word for word before I give it any Epithete and upon reading it I think every unprejudicate man will say one cannot give it an Epithete bad enough the Petition was thus TO THE HONOURABLE The Commons of ENGLAND in Parliament Assembled The Humble Petition of the Governour and Company of Merchants of London trading to the East Indies Humbly sheweth THat Thomas Skinner lately exhibited a Petition to the Right Honourable the Lords Spiritual and Temporal in Parliament assembled against your Petitioners many of which are and were Members of this Honourable House when the said Petition was exhibited for Injuries pretended to be done by your Petitioners Factors in the East Indies in seizing his Ship Goods and Money and dispossessing him of a small Island there all which Matters excepting what concerns the Island are Matters clearly determinable in his Majesties Ordinary Courts of Law as by the Judges attending their Lordships hath been resolved and reported And for the Island the same is parcel of the Dominions of a Foreign Prince and so the Right thereof only determinable by the Laws of that Prince That though the Petitioners did humbly tender a Plea to their Lordships for that the Petition was in Nature of an Original Complaint concerning Commoners only and not brought to their Lordships by Writ of Error or Bill of Review or any way of Appeal and that the Matters therein were relievable in the Courts of Westminster Hall and thereupon prayed the Judgement of that High Court whether it would please to take further Cognizance thereof Yet their Lordships have been pleased not only to give a hearing to all the Matters in the said Petition contained but have denied to gran◠the Petitioners a Commission or so much a◠time to send for their Witnesses now inhabiting upon the place where the Injuries were pretended to be done and without whos◠Testimony it was impossible for the Petitioners to make their Defence That upon the said hearing their Lordships were further pleased to appoint a Committee to assess damages against your Petitioners which Committee is now proceeding thereon accordingly whereby several Members of this Honourable House who are of the said Company as well as others your Petitioners may be highly detrimented All which proceedings as your Petitioners humbly submit to your Honourable Judgements are against the Laws and Statutes of this Nation and Custome of Parliament In tender Consideration whereof and for as much as these unusual and extraordinary Proceedings of their Lorships are not only grievous to your Petitioners at present but may also be a President of ill Consequence to all the Commons of England hereafter and for as much as your Petitioners have no way of Relief in this Case otherwise than by making their humble Addresses to this Honourable
such a Writ But by the delivery only of a Declaration of Trespass and Ejectment any mans Inheritance of never so much value may be questioned and brought to Tryal if it shall continue his or no Nay There is an Act of Parliament 18 El. c. 14. which provides expresly That after a verdict given the want of an Original Writ shall be no Cause of Error to be pleaded in Arrest of Judgement but that Judgement and Execution shall follow So farr is it from being true that no Freehold can be judged without an Original Writ And faine would I aske what Original Writ they use in Chancery to sue men there for their Freehold Is it any more then for the Complainant to put in his Petitionary Bill of Complaint then take out a Writ of Subpoena for the Defendant to come in and answer by such a day just what was heretofore used in the House of Lords the Plaintiff put in his Petition and the House ordered a Writ of Summons to Issue out to call in the Defendant But in later times that House as is usuall for all Courts to alter their Method of Proceeding and find out some more compendious and easy way both for themselves and for Suitors so have they instead of a Writ as formerly which asked more time and charge to take out made it now that an Order of the House shall be sufficient for that purpose but they may returne to their Writs of Summons again when they please And as to Original Writs ow unseasonable is it and ggainst all reason to make it now an Objection against the Judicature of the House of Peers That the Proceedings there not being upon those Writs they ought not to meddle with matters of Freehold Since the Practice of the Law is now so changed that even Inferior Courts have left off the use of them whereas heretofore when all other Courts were by the Law and the practise of those times tyed to those Forms the House of Lords was not but exercised still their Judicature in their own Parliamentary way without Original Writs yet no such exception was then taken but all their Judgements were still allowed of approved and obeyed and punctually executed And the other Assertion doth not operate much neither viz. That it was never heard of a Writ Returnable Coram Dominis Spiritualibus et Temporalibus For if it be meant of Original VVrits what doth that signifie seeing they are not at all necessary no not used now for Commencing of suites even in Westminster-Hall much less in Parliament where the use hath ever been otherwise And if meant of other VVrits it is a foul-mistake For it hath been the Common practice of the House of Peers especially in former times upon any Complaint made to them by Petition to Order a VVrit to Issue out with the Petition annexed or containing the matter of it directed sometimes to the party himself petitioned against commanding him to appear sometimes to the Sheriff of the County commanding him to summon the party to appear before them at a certaine day and the Writ withall to be then returned so to enter into the examination of the busines and afterwards proceed to Judgement Ancient Presidents of this are sans nombre 25 E. 1. m. 14. Upon Complaint of the Arch-Bishop of York That the Advouson of the Rectory of Bridgeford was detained from him by Boniface de Salucijs a Writ reciting the matter complained of is ordered to be sent unto him requiring him to appear in Parliament the morrow after St. Gregory the Pope at Carlile and shew cause Quare ad finalem expeditionem praedictorum negotiorum minime fuerit procedendum why the House should not proceed to a final dispatch of the busines and be was enjoyned to bring the Writ with him habeas ibi tunc hoc Breve is the Close of the Writ The Printed Book of the Placita Parliamentaria in Ed. 1. time is full of Presidents of this Nature I have in this discourse cited very many both out of that Book other Records of Parliament under the other Kings I shal not therefore heap uy any number here though it were easie to do I will only give a short account of one which seemes to me a memorable one out of that Book of the Pacita Parliamentaria p. 1.57 the 21 of E. 1. Magdulphus sonne of Malcolin Earl of Fife in Scotland complaines in Parliament to King Edward That John King of Scotland had wrongfully dispossessed him of certain Lands in Scotland called Reyes and Crey Whereupon King Edward directs his Writ to the Sheriff of Northumberland commanding him to go into Scotland taking persons with him to testifie it and there deliver a Writ of Summons to the King of Scotland to appear before him such a day ad respondendum praedicto Magdulpho super praemissis et ad faciendum et recipiendum ulterius quod Justitia requireret Which was by the Sheriff performed at Striveling the morrow after St. Peter ad vincula who made his returne accordingly to the Parliament And the King of Scotland appeared at his day and was asked if the Kings Writ had been delivered to him by the said Sheriff which he acknowledged and said further Quod semper paratus est et erit Brevia et mandata Regis ut Domini sui admittere Then be was bid to deliver in the Writ and he said he had delivered it to his Chancellor and the Chancellor examined said he had it not there But yet upon the Kings acknowledgement that he had received such a Writ his appearance was admitted and be was willed to Answer to the matter of complaint put in by Magdulphus His Answer was That he was King of Scotland and could not without the Counsel and Advice of the good men of his Kingdome speak to any thing that concerned it This was judged by the Parliament to be Contempt us manifeslus et Inobedientia expressa and it was further Ordered that three of the Principal Castles of Scotland should be seised into the Kings hands and so remain Quo-usque de contemptu et Inobedientia praedicta cidem Domino Regi satisfecerit But the King of Scotland came before the pronouncing of the sentence Coram Rege et Consilio suo et fecit Domino Regi quandam Supplicationem ore suo proprio per verba subscripta which words were these Sire Ieo suy vostre home du Royaulme d'Escoce et vous prie que de ceo que vous me avez mis adevant que touche les gents de mon Royalme aussy come a moy voillez mettre en soeffrance jesques a taunt que ieo ay a eux parle que ieo ne sey suppris per defaute de Conseil desicum les gens que cy sont oue moy ne moy voillent ne osent conseiller sauns autre du Royaulme et quand ieo me averay a eux consaile ieo vous respondray a vostre primer Parliament apres
and it pertained to the King and not to the Arch-Bishop to take cognisance of the Imprisonment if or no it was lawful The Judgement is Videtur Domino Regi in pleno Parlamento praedictis Comitibus Baronibus c. Quod praedictus Archiepiscopus quantum in ipso fuit nitebatur usurpare super Coronam Dignitatem Regiam c. Propter quod per Comites Barones Justiciarios omnes alios de Consilio ipsius Domini Regis unanimiter concordatum est quod praedictus Archiepiscopus committatur Prisonae pro Offensa Transgressione praedictis Et super hoc ante Judicium pronunciatum licet unanimiter de Consilio praedict Magnatum aliorum concordatum fuisset tenendum in hoc Casu similiter in Casibus consimilibus in perpetuum praedictus Archiepiscopus Magnates alios de Consilio ipsius Domini Regis rogavit quod pro eo Dominum Regem requirerent ut ante pronunciationem Judicii ipsum ad gratiam suam admitteret voluntatem suam They interceded for him and he made Fine to the King of 4000 Marks and was received to favour They did not only give a Judgment in this particular Case which being Contra Coronam Dignitatem was tryable in Westminster-hall but they declare it to be a Standing Rule for the Judging of all Cases of like nature which shews the absoluteness of that Power of Judicature which is lodged in that House It was said That the Lords could not take a Cause to themselves per Saltum and before it had passed all the formalities below That a Writ of Error did not lie from the Common Pleas to the Lords House but must first be brought to the Kings Bench And the Case of the Bishop of Norwich was urged 50. Ed. 3. And it is acknowledged The Lords would not receive that Bishops Complaint but sent him away with that Answer nor could they give him any other For Writs of Error have their Walk and their gradual Proceeding chalked out and setled by several Statutes and by the Common Law of the Land But what doth that signifie against the Judicature of the House of Peers No man saith the Lords can either take Cognisance of Causes or judge Causes against the Law of the Land and take them per saltum when the Law prohibits it But they do say and affirm That by all the Examples and Presidents of former times it hath been the usage of that House to receive Complaints and give remedy in all Cases where the Law hath not expresly otherwise determined and if there be any thing in the Case which merits or requires and needs something above the ordinary Power and Proceeding of the Inferior Courts of Justice to administer that Relief which is just and due As in Cases of difficulty where a Court cannot or of delay where it will not proceed the Lords who have a general inspection into the Administration of the Justice of the Kingdom and into the Proceedings of all other Courts have ever upon Application made to them assumed to themselves the Cognisance of such Causes 14. Ed. 3. Sir John Stanton and his Wife had passed a Fine of certain Lands to Thomas Cranthorn who reverts them back and by that means setled them upon the Wife Sir Jeffry Stanton as next Heir brings his Formedon en le descender in the Common Pleas where after some Proceedings upon a Demurrer in Law Sir Jeffry could not get the Judges to proceed to Judgement Upon which he Petitions the King in Parliament which no man will deny to have been in the House of Peers They examine the Matter And afterward order a Writ under the Great Seal containing the whole Matter to be sent to the Judges there willing them thereby if the Matter so stood to proceed to Judgment without delay They not doing it an Alias is sent And the Judges doing nothing then neither and Sir Jeffrey renewing his Petition The Lords commanded the Clerk of the Parliament Sir Thomas de Drayton to go to Sir John Stoner and the rest of the Judges of the Common Pleas and to require them according to the Plea pleaded to proceed to Judgment or else to come into the House with the whole Record so as in Parliament Judgement might be given for one or the other of the Parties The Judges come at the day and the business was heard and it was adjudged That Sir Jeffrey should recover And a Writ under the Great Seal was sent to the Judges to give Judgment accordingly Here then the King in Parliament that is the House of Peers upon a Petition assumes the Cognisance of a Cause depending in the Court of Common Pleas which was so far from having passed all the formalities below that is to say an Appeal to the Kings Bench and Chancery that it was as yet undetermined in the Common Pleas. Nor did it appear unto them upon what ground it was that the Judges gave not Judgment So they might have answered Sir Jeffrey Stantons Petition with saying that they would first see what the Court would determine and what the Kings Bench afterwards But they apply themselves to give him relief And yet no Votes past against that House for so doing as now hath been in the Case of Skinner against this So in the Parliament of 18. E. 1. p. 16. of the Placita Parlamentaria William de Wasthul complains of Matthew del Exchequer for cosening him upon the levying of a Fine before the Judges of the Common Pleas by procuring an Atturney to slip in other Lands unknown to Wasthul and which be intended not to pass in the Fine This is returned back to those Judges because the Fine had been levied before them Et dictum est iisdem Justiciariis quod Recordum istud in Rotulis suis faciant irrotulare tam super Recordo isto quam super aliis ipsum Matthaeum coram eis contingentibus procedant ad Judicium debitum festinum faciant Justitiae Complementum True the House of Lords is not so bound up to forms but that it may when it thinks good vary and retain a Cause at one time which it will not do at any other time Yet we see they were proper Judges in this Cause for they order Wasthulls Complaint and the Proceedings before them to be entred as a Record in the Common Pleas and those Judges to proceed upon it which if they had not had Cognisance of the Matter had been all Coram non Judice and could have signified nothing And I must observe one thing which I think will not be denyed That all those Placita Parlamentaria whatever is said to be done Coram Rege in Parlamento is to be understood of the House of Peers where the King was in those times commonly present and alwayes understood to be there representatively So as his Name was ever mentioned in the Proceedings even when his Person was absent being sometimes out of the Kingdom sometimes detained away
and Company and of Maurice Tompson and Sir Andrew Riccard seeing the Petitioners hopeful designe in his Plantation and way of trade with his Ship did seize for and on the behalf of the said Governour and Company his said Ship goods houses Istands and 1521 Dollars of the Petitioners in the hands of Thomas Leaver the Companies Chief Agent at Jamby which hath damaged him 17172 l Sterling besides the disappointment of his trade disseizin of his said Island loss of above six years time with attendance and vast charges here in endeavors for a just satisfaction c. being much more valuable then all the other damages And the said Agents used many violences upon his person in the said Indies notwithstanding that the Petitioner proffered Bail and good Security there to answer all their pretences which inhumane and unreasonable dealing forced the Petitioner through infinite hazards and expence to come most over Land for England to seek redress That in the year 1661 and continually since he hath humbly besought his Majesty for Justice against the said Governour and Company and persons aforesaid and though his Majesty hath been graciously pleased to convene the said Company and Persons and to hear the said Matters and also to referre it divers times to several Lords of his Majesties most Honourable Privy Councel to hear them and mediate an End yet they could not be reduced to Reason nor Justice albeit the Petitioners Wrongs and Damages were made to appear as well by their own acknowledgement as other evidence produced before the Lords Referrees but endeavoured by the strength of their Joynt-Purse to bear down the Petitioners Relief though never so just by wearying him from further Prosecution That the Petitioners whole Case not being remediable by the Courts below he is constrained humbly to address himself to your Lordships his Majesties great Councel and Supreme Judicature whom the Petitioner most humbly petitioned the last Sessions and your Lordships were pleased to order their Attendance but by their Dilatory Pleas and several non-attendances upon slight excuses at the day appointed by your Lordships they frustrated the Petitioner of obtaining your Lordships Justice that Session Wherefore he most humbly prayes That your Lordships will be pleased to cause the said Governour and Company and persons aforesaid to answer the premisses before your Lordships by a short day and that he may receive from your Lordships such Relief as shall be consistent with Justice and Equity And he shall pray c. Signed Thomas Skinner The Lords upon this order the Company to put in their Answer in Writing upon Wednesday the 6 th of November They bring in a Plea as before First by way of Protestation That all the Injuries supposed to be commited by them and their Factors are untrue Then plead as formerly That the Petition is in the Nature of an Original Complaint not brought by way of appeal c. as in their Plea of the last Session but add And therefore these Respondents do humbly demand the Judgement of this honourable Court whither it will please to take any other or further Cognizance of the same the rather because the matters of Complaint in the Petition are such for which remedy is ordinarily given in the Courts of Westminster-Hall wherein these Respondents have Right to be tried and ought not to be brought hither per saltum nor drawn ad aliud examen and so pray to be dismissed The Lords having received this Plea to shew the clearness of their Intentions and their tenderness of doing any thing which might but carry a Semblance That they desired to engross to themselves the judging of particular Causes when determinable elsewhere and nothing extraordinary in the Case to induce their Lordships to take Cognizance of the Matter which apparently was in this Case of Skinners as hath been said before would have the Opinion of all the Judges before they proceeded any further And therefore made an Order Monday the 2 d. of December That it be referred to all the Judges to consider of Skinners Petition and to Report to the House upon the Wednesday following whether the Petitioner were relievable upon the matters therein mentioned in Law or Equity and if so in what manner upon the several parts of the Complaints of the said Petition The day appointed the Judges came and the Lord Chief Justice of the Kings Bench reported That all the Judges had considered of the Matter referred to them and having met and considered thereof were of Opinion That the Matters touching the taking away of the Petitioners Ship and Goods and assaulting of his Person notwithstanding the same were done beyond the Seas might be determined in his Majesties Ordinary Courts at Westminster And as to the dispossessing him of his House and Island That be was not relievable in any ordinary Court of Law Here then clearly by the Judges own Confession part of the Case was not within the Power of Westminster Hall and under favour of better Judgements I think it will be but a venial Sin if notwithstanding this Declaration of our Sages in the Law the Doubt do still remain with us if some of the other points also as that of the taking of his Ship a Robbery committed super altum mare be punishable by the Law of Westminster Hall Nay may not one be bold to affirm That it is not And may it not be doubted further if any part of Skinners Case be tryable there and if their Fiction in Law will reach any part of it being all for Injuries and Violence against his Person and Estate in India We know that some Judges and Lawyers make it to extend to Contracts and Bonds made beyond the Sea which they ground upon a Case in the Year Book of 48 E. 3. fol. 2. where Sir Ralph Pole brings his Action against Sir Richard Tochester upon an Obligation bearing date at Harfleet in Kent Lou de rei veritate I l fust fait en Normandie the Book saith and his Action was held good And Brook who makes it to be at Roan not Harfleet gives the reason in his Abridgement Faits 98. le lieu n'est traversable the place is not traversable which is to be understood when it is expressed in the Bond for a man cannot traverse the place against his own Act. But the Law was ever understood to be otherwise till then that the Judges would ampliare Jurisdictionem And to shew what the Law was before E. 3. it was adjudged Michaelmas 2 E. 2. That no Action would lie for a Bond made at Barwick which did not then belong to England ou cest Court nau ' conisans where the Court hath not cognisance saith Fitzherbert Obligation 15. And so Perkins Faites 121. But both before and since the Courts of Law were so far from punishing Injuries and Trespasses done beyond Sea That even Treason was not tryable till the Statute of 26 H. 8. cap. 13. which saith That if any of the Kings
3. N. 96. It is there specified How in the Parliament before one Hugh Staffolk had been accused of divers Extortions and that a Commission was then granted to the Earl of Suffolk and Sir John Cavendish to inquire into it who so had done and had found him guiltless by 18 Enquests which Sir John Cavendish did in that present Parliament witness to be true By all this it appears that the Authority of the House of Peers ends not with the Parliament but their Judgements still continue in full force and power And they may appoint Persons to see them executed if they please And whereas the House of Commons doth not deny them a power of Judicature upon Writs of Error and upon Appeales Will not the same objection lye as well against their Judgements in those Cases For seldome that they be put in execution before the Parliament rise so it takes away their whole Judicature as in truth all the other objections would do could they be made good And whereas it was said That none of the Kings Courts can give remedy where the Kings Writ can not run And where his Majesties Soveraignty doth not come the Jurisdiction of the Peers can have no place It was Answered that there Chiefly the Power of the House of Peers is to give remedy because it only can As for Treasons till the Statutes of 26 H. 8. C. 13.32 H. 8. C. 2. and 5 E. 6. C. 11. which have made them tryable within the Realm and all Misdemeanors committed in Forrein parts which never were nor yet are tryable at the Common Law Of this there are multitudes of Presidents Gomeniz Weston Segrave Hall Richill c. And here within the Kingdome the the Kings Writ doth not originally run in all places as for example in the Counties Palatine yet no man will deny the Authotity of the Lords in Parliament taking place there 9 R. 2. N. 13. The Duke of Lancaster Complaines of Sir John Stanley for not suing out his Livery for the Mannor of Latham in the Dukes Court of Chancery and yet entring upon it They declare his Entry unlawful and Order him to sue out his livery in the Dukes Court. The Kings Writ did not run there but the Authority of the Lords did Another Objection was That all Proceedings ought to be in Latin and nâ— Record to be in English But the Lords had thought That none had ever yet doubted but the House of Peers had been a Court of Record where all the Proceedings Orders Judgements have been in English ever since H. 6â—… time All Acts of Parliament in English All impeachments even those brought up by the House of Commons the Proceedings and the Sentence all in English The Ancient Records were in French and the Pleadings likewise till the Statute of 36 E. 3. Which appoints Pleadings to be in English and to be entred and enrolled in Latin so the Print saith but in Sir Robert Cottons Abridgement of the Records it is observed that the Record it self warrants no such thing Then the Chancery Proceedings are all in English The Pleadings Orders and Decrees Yet it will not be denied but that is a Court of Record Sir Edward Coke who alone is of an other Opinion concerning the Chancery and upon that ground because the Proceeding is in English yet makes the House of Commons it self a Court of Record where every body knowes all is in English Jnst 4. part p. 23. so he doth not sibi constare The last Objection and indeed the the Chief one if true was That it deprives the Subject of the benefit of Magna Charta which will have all men to be tryed by their Peers or by the Law of the Land And the 25 of Ed. 3. C. 4. that none shall be apprehended upon Petition to the King or Counsel and Counsel here they interpreted to be the House of Lords but upon inditement or presentment or by Writ Original And the 42. of E. 3. which is to the same purpose It was urged further that no Writ was ever made returnable Coram Dominis Spiritualibus et Temporalibus And it was said in Regard of the Island being in a Forrein Princes Jurisdiction that it ought to have been done by Act of Parliament for that no Court of his Majestie can give remedy where his Majesties Writ can not run nor can the Jurisdiction of the House of Peers have place there An other observation they had upon Lex Terrae in Magna Charta That in the Arguments of the Kings learned Counsel 3. Car. They made Lex Terrae to be the pleasure of the King And the Lords were desired to consider upon this if by arguing that the Proceedings of their House were maintained to be Secundum Legem Terrae it may not as well be said that Magna Charta will have men to be tryed Per Judicium Parium aut per Legem Terrae That is by the will of the Lords This is the substance of what was most materially urged against the Lords at that Conference Some other things were said rather to entertain the By-standers then for any thing else as the question asked How the Lords should see further beyond sea then other men Indeed the Lords thought they might see as farr as other men and as farr as the Court of Chancery or any other Court but never undertook to see further But they think if some may have their wills they may be laid so low that they shall then see but a very little way but that is not yet And another pretty Dilemma was made which was this Are the Lords bound to recieve all Petitions or not if bound they may refuse none for Magna Charta saith Nulli negabimus and the King is Debitor Justitiae to all his subjects If they be not bound then they must be partial to receive some and dismiss others But this Argumentum bicorne hurts with neither horne For the Lords in these very Presidents brought by the House of Commons in Ed. 1. Ed. 2. time did not deny Justice when they sent the Petitioners unto those several Courts where they should receive it one to the Chancery an other to the Common Law and directed one to bring such an Action another a differing one according to their several Cases And in those multitudes of Presidents brought by the Lords where Causes have been retained and determined in that House they can not justly be charged with Partiality when they are moved thereunto by some thing extraordinary in those Cases which requires their Relief and that it can not be had else where And a Question may be put on the other side whither it can be believed that Partiality was imputed to all the Parliaments heretofore which at their first sitting appointed Committees Tryers of Petitions for England for Ireland for Gascony nay for Flanders where the King had no Dominion and sometimes in general for all places beyond the Seas to examine which were fit to be received
which not And those Parliaments that the Modus Parliamenti speakes of when a little before the rising of the Parliament Proclamation was made in Publick places to know if any had business to the Parliament if any had Petitioned the Parliament their Petition had not been answered Certainly those Parliaments then did not apprehend to be reproached either with Partiality or deniall of Justice And I would aske this further If they can think that such a Committee of Tryers would have rejected Skinners Petition and have said The Lords can take no Cognizance of your business because it is concerning things done beyond Sea when themselves were a Committee appointed only for such businesses But to let these Sarcasmes pass and see rather what was said and may be said to the more solid objections concerning Magna Charta and those other Statutes which they will have to condemne the Proceedings of the Lords First it may be observed as a thing very strange that in above 400 years since Magna Charta was first made a Law it was never till now found out that the Lords had broken that Law by the exercise of this Jurisdiction nor were they ever charged with it before But besides do they by this any more break it then the Court of Chancery which by a Decree disposes of a mans Lands or the Court of the Constable and Marshall which takes away a mans life or any other Court where the Judge for a Contempt presently sends a man to Prison or claps a Fine on his head so takes both person and Estate or the same House of Lords when it Commits a man upon an Impeachment of the House of Commons Judges and Condemnes him Here is no Judicium Parium that is most certain nor Lex Terrae if you take it for an Original Writ And yet no man will say any of this is contrary to Magna Charta Why then may not the Proceedings of the House of Peers when it punisheth a man for robbing and assaulting his fellow subject in as strange Country which puts the busines out of the Cognizance of the ordinary Courts of Justice receive as favourable a Construction It can not be said that the House of Commons by their taking Cognizance of a Fact by their previous examination of it and declaration upon it giving it the Denomination of Treason or of any other lesser Crime can create a Jurisdiction in the House of Peers which it had not before and give it new power and Authority to pass a condemnation upon the guilty Person yet is it the Ordinary practice of the House of Commons who have a Grand Committee of Grievances for that purpose to impeach men so before the Lords They could receive not long since a Petition of one Taylor complaining against the Lord Mordant for oppression and falss imprisonment and the injurious taking away of an Office from him at Windsor All which were properly tryable in Westminster-Hall yet they could bring this up to the Lords and crave Reparations and Damages in the Name of the Commons of England And the Lords must not though at the Kings recommendation receive a Petition from Skinner and give him relief for his whole Estate by violence and with a strong hand taken from him part at Sea part upon Land in a strange Country in neither of which the Courts of Westminister can afford him any help For this must be against Magna Charta So rather then the Lords shall do it this must be a Failer of Justice in the Land the King shall not be able to protect his subjects the oppressor shall go free and the cry of the oppressed shall go up to heaven for Judgment upon the Land because he finds not Justice in it for his Relief But I remember what the Gentlemen of the House of Commons said at the Conference That therefore the Lords should not have given Relief in this Case because there was no remedy at all at Law This Objection hath been already answered therefore I shall not repeat it here only use one Argument more ad hominum that they forget what themselves have done this very Parliament entertaining a Complaint of one Farmer against the Lord Willoughby who is since dead for dispossessing him of his Estate and other wrongs done him in the Barbadoes which could not be tryed in Westminster-Hall which yet they were preparing to bring up to the Lords by way of Impeachment if the Lord Willoughby had not dyed And there is reason to believe that if Skinner had in the like manner applied himself to them there had been no breach of Magna Charta nor no exceptions taken at the great charge of the Subject appealing to the House of Commons and prosecution there though the charge be every whit as great and becomes much greater to the party that prosecutes for when he hath done there then he must begin again in the House of Lords so the charge is double and the Judgement when it comes is never a whit more in Latin to make it a Record then if the business had begun first in the Lords House as much is it without Jury or Appeal and no less danger of the non-execution of the Judgement after the rising of the Parliament In Fine all that is said against the Lords Proceedings now might as well be said against them then And to say the truth if it be well considered it wil be found that the consequence of this opposition should it work it's effect and prevail would be the overturning of the very foundation of all Authority of Parliament that it might then well be said of the whole Parliament that it did sit only to make Laws and give Subsidies But all this proves not the exercise of the Lords Judicature to be warranted by Magna Charta it only saith that other Courts and the House of Commons it self do as bad Which is no Justification of the Lords For to erre with Company is not to be free from fault Let us then see what may be said to clear them all but principally and Chiefly this Judicature of the House of Peers which is the mark shot at And to do this we must examine the Disjunctive proposition in Magna Charta which saith that every man shal be tryed Per Legale Judicium Parium suorum vel per Legem Terrae For if the Lords judge by either of these they are well enough And Sir Ed. Coke shall determine the question whom no man can suspect of partiality for the House of Lords He tells us in his 2. Inst F. 51. That Lex Terrae is Lex Angliae not Voluntas Regis as the Commons said the Kings Counsel would have it to be 3 Car. And less voluntas Dominorum Fot it is not in an arbitrary way the Lords proceed but according to the Law of the Land to punish nothing but what the Law makes punishable and Judge every thing according to Right secundum aequum et bonum So
then Per Legem Terrae is all one with Per Legem Angliae or secundum Legem et Consuetudinem Angliae and what ever is done secundum Legem Angliae is done Per Legem Terrae And in his 1 Inst l. 1. c. 1. Sect. 3. He tells us what Lex Angliae is he saith there are divers Laws within the Realme of England and reckons them up Lex et Consuetudo Parliamenti is in the front of them He names many more the Civil Law by which the Court of Constable and Marshall and the Court of Admiralty and Ecclesiastical Courts do act the Law of War for the Court Martiall to act by the Law of Merchants the law of Stanneries Particular Customes in several places of the Kingdome Statute Lawes established by Authority of Parliament Whoever and whatever is tryed by any of these Laws be it for life Lands or goods it is still according to Magna Charta and though not Per Judicium Parium yet Per Legem Terrae The Law and Custome of Parliament is one of these and the Lords now acting agreeably to that act agreably to Magna Charta and that they have acted so is I think sufficiently proved all ready and will be further hereafter when we shew you Presidents for it from the beginning of Parliaments So for the other Statutes of the 25 of E. 3. c. 4. and the 42. c. 3. They do not at all concerne the House of Peers and were made only to prevent Vexation by Petitions and false accusations before the King and his Privy Counsel as appeares by the Preambles of those Statutes Though the Gentlemen of the House of Commons who managed the Conference were pleased to give them an other Interpretation and to say that the Petitions and suggestions to the King or his Counsel which are condemned by those Statutes are to be understood of those brought to the King and House of Lords But can it be rationally believed That the House of Peers of those times should themselves make so many Lawes pass so many Acts of Parliament five in the space of 17 years the 25 of E. 3. c. 4. the 28 c. 3. the 37 c. 18. the 38 c. 9. the 42 c. 3. all of them prohibiting that any man should be apprehended imprisoned or disinherited upon an accusation or suggestion to the King or his Counsel and enjoyning all Proceedings to be by Original Writ or by Inditement or by Presentment of good and lawfull People of the Neighbourhood And they know themselves to be intended by those Acts and yet still should act contrary to them judge and determine so many Causes both Criminal and Civil as they did from time to time Nay can it be believed That the House of Commons in those daies would bring up Impeachments against men to have them tryed at the Lords Barr if they did then conceive that those Acts of Parliament did forbid the Lords to meddle For though the Commons House are sometimes called the Grand Inquest of the Kingdome to present the Grievances thereof it is presumed they will not say that their Presentment is the Presentment intended by those Statutes For the Presentment mentioned there is the very description and true Character of your Country Juries The words of the Statute are The Presentment of good and lawful people of the same neighbourhood where such Deeds be done And can any man think that this is to be understood of the House of Commons No certainly What then is it that makes the Lords Proceedings upon the Impeachments of the Commons to be Legal and not contrary to those Acts of Parliament Since there is neither Writ nor Inditement nor Presentment and yet men are brought to tryal condemned and executed by their Judgements but only this that it is the Common Law of the Land being the Ancient unquestioned and undoubted Law and Usage of Parliaments And thereby is there a clear demonstration of the true meaning of those Statutes that it was the Regulation of the Kings Privy Counsel they aimed at and not of the House of Lords that Counsel of which Sir John Lee was one in that 42 of E. 3. n. 23. who was tryed and censured by that very Parliament in which that Act was made One of the Articles against him was That being of the Kings Counsel and Steward of his House be caused sundry men to be attached and and brought before him and made them answer singly to him as if it had been to the body of the Counsel He was fined for it and committed to the Tower The Lords John Nevil was likewise of this Counsel for misbehaving himself in it Judgment of Imprisonment and loss of Lands goods and Office was given upon him 50 E. 3 n. 34. And in the same Parliament n. 18. The Lord Latimer was accused for divers miscarriages being a Counsellor and for them he was by the Bishops and Lords committed to the keeping of the Marshall of England and adjudged to make Fine and Ransome at the Kings pleasure It is true he was enlarged presently by the Earl Marshall one Arch-Bishop three Bishops the Prior of St. John three Earls fifteen Barons and thirteen Knights being his Manucaptors but the Commons desired further that he might be no longer of the Kings Counsel which was granted And this was not to put him out of the Lords House for he continued still a Member there and had his Writ of Summons to come to the next Parliament in the 51 th year of that King There is nothing more clear then that those Statutes are all to be understood to mean the Privy Counsel and so did the two Houses of Parliament interpret them 3 Car. in their Petition of Right where the expression is That against the tenor of those Statutes divers were detained by his Majesties special command certified by the Lords of the Privy Counsel and one may bodly affirme that never any Statute or Act of Parliament did term the House of Lords the Kings Counsel So that Article of Magna Charta urged likewise at the Conference Communia Placita non sequantur nostram Curiam concernes not them neither It was to fix the Court of Common Pleas which as all other Courts was before that Ambulatory and followed the King where ever he was if he was in the Kingdome and the Writs were made returnable Coram nobis ubicunque fuerimus which was a great Grievance to the subject and cause of many discontinuances in sutes The following words clear it Sed teneantur in aliquo certo loco Now the place of the meeting of the Parliament was alwaies certainly known being expressed in the Writ of Summons which shewes it was not meant for them And whereas it was said That in Cases of Freehold there is no Proceeding without an Original Writ Scarse any that walkes Westminster-Hall but knows the contrary and the Course of Proceeding to be so fart otherwise as that not one Tryal for Land of forty comes on upon
of their not Judging Commoners is apparently proved by the constant practice of the House of Peers in all succeeding times And one thing more would be taken notice of in the Proceedings of the House of Peers at that time after their precipitate and Illegal Condemnation of those Persons without ever calling them to answer The Earl of March a Peer of the Realm was condemned and executed as well as the Commoners and this was looked upon as a President of ill Consequence for the Peerage and therefore they would have a Law to prevent it and that the Nobles of the Land should not be put to answer but in open Parliament by their Peers which they long endeavoured before they could obtain it So as in 15. Ed. 3. n. 6. they adjourned the Parliament severall dayes upon that point and at last appointed four Earls four Bishops four Barons to draw it up into form and got it passed into an Act but two years after the King got that Act to be repealed And so far they likewise took care of Commoners in that Parliament of 15. Ed. 3. as to have it enacted also That no man should be impeached by Commandment without process of Law These were Acts of Parliament and Laws which did bind but the other of their judging none but Peers was a meer particular Order of the House an Agreement betwixt the King them which was no wayes binding to posterity and alterable still at pleasure by the same House that made it Another Battery raised by that Author against the Jurisdiction of the House of Peers is from the Statute of Appeals 1 H. 4. c. 14. And with that he would overthrow the force of that President of John Hall condemned by the Lords in that first year of H. 4. for the death of the Duke of Glocester in the 21 of R. 2. as if that power were now taken from them by that Act and that the Commons by it had taken care it should not be so done by them any more for so he saith p. 23. Which by his leave concerns nothing the proceedings against Hall and will less I may say concern the present question of the proceedings of this House of Lords in the Case of Skinner For that Statute provides only for Tryall of Appeals where a private person next of kin is or shall be prosecutor which was not in Halls Case the prosecution being in the ordinary way at the Kings suit It is true that in the 21 of R. 2. an horrible abuse had been in point of Appeals Certain Lords not by Law capable of it taking upon them to be Appellants and in their own Names acousing in Parliament several persons Peers of the Realm and Commoners of divers Treasons and Murthers making themselves Judges and Parties and condemning them to die without nay against all forms of Law rules of Justice by which means many innocent men lost both lives and Estates This it is that is provided for by that Statute and care taken it shall be so no more not the Ordinary prosecution of Offenders in the Kings Name as Halls was Though one particular in that Tryal is confessed to have been most Irregular and Illegal which was examining him against himself upon Oath but that is not material to the point in question which is Whether the Statute of Appeals forbids such Tryals as assuredly it doth not nor any of those formerly instanced in to have past in the House of Peers And least of all can it concern the late Proceedings in the business of Skinner and the East India Company in which there is no charge either of Treason or Felony where an Appeal onely can take place to bring it within that Statute In the same 23d page an other Argument is used against this Jurisdiction of the Peers in which that Author hath certainly missed his Mark for nothing could be produced that makes more for that Jurisdiction He saith That the Subject of England hath moderated Parlaments and by express words determined that some things cannot be done in Parliament as that any should be impeached there of that concerns his Francktenement or Hereditament and vouches for his Authority Rot. Parl. 10. H. 6. n. 35. where indeed there is such a desire of the House of Commons That none shall be compelled to answer in Parliament concerning his Francktenement But let him tell us how they sped with their desire if their Petition was granted to make it a Law and binding Far from it The Answer is Le Roy saduisera The King will advise which in Parliamentary Language is a flat Denyal So then no alteration was made of what was formerly the Usage and Power of Parliament but all continued as it was before And that before they did in Parliament try and judge such matters is apparent by the desire of the Commons that it should not be so hereafter for if no such thing was their desire it should be no more so was ridiculous but it was so it seems and their desire that it should be altered being rejected leaves it in the same state it was that the Parliament might continue still to do it And by the Parliament in these Cases is to be understood onely the House of Peers for there singly lies the Judicial Power as is confessed and acknowledged by the House of Commons themselves 1. H. 4. n. 79. so it is in the Record but in the Exact Abridgment it is n. 80. That all Judgments appertain to the King and Lords and not to them but when out of especial grace some are communicated unto them and therefore they there desire that the Records may be so entred as they may not be made Parties to them So careful they were then not to seem to encroach upon that Power And whereas the Author of that Pamphlet would make a difference upon the Personal presence of the King in those times in the House of Lords That though they might do it then in some Cases it followed not the Lords might do it alone the King not there it is but a fancy of his making a difference where in truth there is none I have proved it before that the Court is the same be the King present or absent The King in Person can judge no man nor dispose of no mans Life or Estate therefore it is a Maxim That the King can do no wrong the reason is because he of himself and by his own particular and personal Authority can give away no mans Right no not any ones pretended Right where a man hath only a possession though without right the King alone in propria Persona can give no Rule in it but it must be tryed in one of his Courts And his Judges and Ministers whom he intrusts with his Regal Power that with which he is himself invested in his Politick Capacity and which he conveys to them making them thereby the Dispensers of his Royal Justice unto all his Subjects they must be
the Persons that do the wrong if any be done It is Curia Regis that doth it and not the King though he sit in Court in Person And so the stile is Videtur Curioe And the Pleas Commonly end with this Declaration of the Party Hoc paratus sum Verificare pro at Curia ordinaverit and when mention is of any thing done contrary to the formes of proceeding Non sic in Curia ista usitatum est is the expression as it is in the President of the 18. E. 1. so much insisted upon by the House of Commons So hath it been in all times the Authority of the Court to which the Law requires obedience When Henry the third would have his Brother Richard Duke of Cornewall confirm the grant of a Mannor to one Waleran a Germain to whom King John had given it and which the Duke of Cornwall said belonged to his Dutchy of Cornwall and had therefore taken possession of it his Answer was That he was willing Curioe Regioe subire Judicium Magnatum Regni that was to say the Judgment of his Peers in Parliament and when the King said angrily to him He should then quit the Kingdom it he would not deliver up the Mannor his reply as Matthew Paris Records it was Quod nec Walerano Jus suum redderet nec sine Judicio Parium fourum e Regno exiret He would neither quit his Right nor the Kingdom but by the Judgement of his Peers Such difference was then made betwixt the Kings Personal Command and an Order of the House of Peers in disposing of mens Rights which makes it very apparent That the Kings Personal presence could not add any thing to or make any alteration in the Jurisdiction of any Court. But enough of this especially considering what is said before upon the same Subject Some other Evasions I find in that Book to elude the Lords Judicature and take off the force of some Presidents which have been cited in maintenance of it which I think are but evasions and work no great effect As that of the Banishment of Alice Perrers or Pierce which that Author will prove to have risen from the Commons and to have been at their Petition because Walsingham a Cloistered Monk saith so contrary to the Record in the Tower where he finds no such thing where certainly it would not have been omitted had it been so that being so essential a part of a Transaction of Parlament that it could not have been left out by the Clerk in the Journal Book And whereas to fortifie Walsingham's Testimony he saith he then lived as if he had been Testis Ocularis I doubt much if he was then born or so young he must have been that he could little take notice of the passages of the time for Baloeus in his Book De Scriptoribus Britanicis saith he flourished in the year 1440. under Henry the sixth when he died we know not but had he died then or soon after he must have been sixty three years old if so be he was in the World when Alice Pierce was banished for the Judgement of Alice Pierce was the first year of Richard the second which was in 1377. So as what he writes could be but by hearsay Which is observed by me onely to shew what weak proofs that Author brings to make good his Assertions and shews the badness of his Cause Not that I think it at all material to the point in question whether or no it was at the request of the Commons that Alice Pierce was judged by the Lords which would not at all evince what he would infer upon it that the House of Lords hath not of it self Cognisance of the Cause of a Commoner nor can judge him for an Offence whether Capital or of a lesser Nature but that the House of Commons making it their desire qualifies them for it Which is a strong Argument of the contrary and proves that the House of Commons doth thereby acknowledge their Judicature For ridiculous it were to think That any Act of that House could create a new Power in the House of Lords which it had not in it self before and which afterwards must cease till it please the House of Commons to give again a new life and being to it As if the House of Lords were but a Property which cannot move of it self to have the Verse said of it Ducitur ut nervis alienis mobile lignum I am sure it hath not been so heretofore nor do I think the House of Commons will own that Authors Opinion And so the Judgment of Hall for the death of the Duke of Glocester that too forsooth must be at the request of the Commons and so be an Act of Parliament and the proof for it is that at the end of the Roll they thank the King for his just Judgment But if the Gentleman would have perused the whole Roll he would easily have been satisfied that the thanks of the Commons related not to Halls condemnation but to the proceedings of the King and House of Peers against Sir William le Scroop Sir Henry Green and Sir John Bussy who had been active for Richard the second and were looked upon as principal Authors of the Miscarriage of his Reign For at the request of the Commons the Lords confirmed a Judgment formerly given against them in some of the Kings Courts not in Parliament and the King declaring That though he took the forfeiture of their Estates according to the Sentence given upon them yet he understood not there should be by it any Infringement of the Statute which said That no mans Estate should be forfeited after his death who had not been convicted whilst living for these persons he said had been so convicted Whereupon the Commons thanked the King for his righteous Judgment and thanked God for giving them such a King This had no relation at all to the business of Hall And in the Record it is an Article by it self of what had passed in Parliament another day So for the proceeding against Gomeniz and Weston that too must be at the request of the Commons and consequently an Act of Parliament Whereas the Commons had onely in general desired that all such as had delivered up any of the Kings Forts and Castles unduely might be called to account for it in that Parliament and be punished for it according to their demerit by the Judgment of the Lords who thereupon commanded the Lievtenant of the Tower to bring before them those two who were already in hold for their several Facts in that kind whom they tryed and condemned and proceeded likewise against several others as Cressingham Spikesworth Trevit and many more guilty of the same Crime whom they convented before them and Sentenced some to death some to other punishments according to the Quality of their Offence Now I do ask if in common sence it can be construed that the Commons were at all Parties in the prosecution