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
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
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
Temporalibus none such is found in the Register or Fitzherberts Natura Brevium And the reason they said was the same for Personal Actions as those that concern Free-hold that Magna Charta and several Statutes made in Ed. 3. time provide for our Tryall by our Peers Some other Presidents they mentioned out of the Roll of Petitions answered in the Parliament of 14. E 2. as that of William le Rous F. 408. Complaining of the Kings Bayliffs who had twice dispossessed him of a house in Westminster and praying remedy the answer was Habeat Breve novae disseisinae in suo casu Then that of the Bishop of Winton Elect in the same page Complaining that the Kings Officers had cut down the woods of the Bishoprick during the vacancy and praying remedy The Answer is Habeat Breve de Transgess in Canc. Next of Joane the widdow of John Fouks p. 409. by Petition Complaining of a wast committed in the Mannor of Radewynter The answer is sequatur ad Legem Communem Another President of Mariote the wife of Robert de Carle in the same page praying remedy for a breach of the Peace by the Parson of Wormele and others the Answer is Adeat Cancel habeat ibi Breve in suo Casu And to a Petition of Robert le Sausser p. 410 for a debt due to him Answered habeat in Cancell Breve de debito The last President cited was p. 411. Ralph de Draiton Parson of Luffenham complaining against Robert de Vere and others for imprisoning him till he resigned his living taking away his goods and committing other violences for which he had a Commission of inquiry in the Country of York and now prayed remedy The answer is quoad Resignationem nonpertinet ad Regem quoad Commissionem habendam ostendat in Cancellaria primam commissionem ibi respondeatur Et habeat similiter in Cancell Brevia de Transgressionibus sibi factis contra pacem c. To this first part of that Conference the Lords when they came to theirs gave for Answer in the first place That they could not but observe some thing unusual in the very title of the Petition differing from the ancient Stile of those presented to the House of Commons Then that they were much surprised reading the Petition to find so many falsities and yet to heare the Gentlemen that managed for the House of Commons say that their House had examined it and found all the Allegations in it to be true Whereas in truth there were in it almost as many Falshoods as Lines those Falshoods have been mentioned before so as it is not needfull again to repeat them The Lords took notice after of the unusual Proceeding of the House of Commons to take Cognizance of any matter depending in their House before their Lordships had given any Judgment therein or communicated the same unto them And to examine proceed upon and censure by vote the Proceeding of the House of Peers which they said the House of Commons could not Legally do because they were not a Court of Judicature in any case much less of the House of Peers which is the Highest Iudicature And that in truth they had not means to come to the Knowledge of the truth whereby to found a Right Judgment because they have not power to give an Oath Nor in this particular had they heard any more then one side having not heard Skinner at all Nor yet had they conferred with the Lords by which meanes they might have come to the knowledge of the grounds and reasons upon which their Lordships had proceeded So as the Lords could not but wonder at this Judgement which had been past upon them Then they came to that Assertion concerning Common Pleas That they must be proceeded in by the Kings Original writ and consequently not before the Lords for which the House of Commons brought some Presidents to prove that Free-holds were never examined in Parliament but alwaies left to the remedy at Law And in the next place the Lords took into Consideration how they began their Presidents with this Preamble That where the party never Pleads to the Jurisdiction of the Court it is ordinary for Courts to proceed though in Cases not within their Jurisdiction To which the Lords said in the first place as to the Assertion viz. That all Common Pleas must be proceeded in by Original Writ and Consequently not before the Lords That it was as easy for them to assert the contrary and upon better grounds Being able to shew Presidents all along from the first and the most ancient Records we have down to the latest and most moderne ones of the Proceedings of Parliaments even within the memory and knowledge of every yong man that the House of Peers have still exercised this Jurisdiction even in particular Cases of Meum Tuum between man and man when they have thought good though that but rarely and when moved to it by some thing extraordinary in the Case and that no House of Peers hath done it less and been more tender of entertaining such businesses and more unwilling to be troubled with them then this present House of Peers upon which so much blame is laid and which is the only House of Peers that ever Private Persons found guilty and censured by it for foul Oppressions did presume in that manner to accuse and impeach to any Court or Councel or Company of men no not to the King himself Or that ever were censured and such votes passed upon before But we shall hereafter in its due place examine the matter of this Assertion and shall shew that it holds not true even in the ordinary Courts of Westminster-Hall whither of common Law or Equity where Cases of mens Free-holds are tryed every day without any original Writt and much less in Parliament In the mean time we will take things in order as they were delivered And to the Preamble which usherd in the Presidents That where the Party never pleads to the Jurisdiction it is ordinary for Courts to proceed though in Cases not within their Iurisdiction upon which the Inference must be that Presidents then signify nothing to prove a Jurisdiction though never so many though a constant Series of them in all times be made appear except there be still a pleading to the Jurisdiction and that Plea overruled The Lords thought this a strange Argumentation and took the force of the Argument to lye rather the other way That it is a clearer Proofe of a Jurisdiction to have it never or seldome questioned and be still exercised and submitted unto then if it be some times opposed though it be made good and maintained against that Opposition And they thought that in this particular Case they had good Warrant for their Jurisdiction finding it so seldome opposed even by the House of Commons own shewing who could bring but four Presidents where any had pleaded to their Jurisdiction and the Plea seemingly admitted for
any body else perhaps I say even some of them should they prevail now may hereafter repent it and wish they had not removed an Ancient Land Mark which heretofore was in Veneration and looked upon as that which bounds both power and Liberty and is a guard to both by keeping both within their due limits and hath ever been held most necessary to the Constitution the Government of this Kingdome for the Preservation of it and as servicable to Monarchy for the keeping up of Regal Dignity and Authority as usefull to the subject for the maintaining of his just Liberty and Freedome But let us go on with the Conference and see what was said by the Lords to the Presidents cited by the Commons To the first of John de Insula against the Bishop of Winchester the Lords said it was no dismission of the Bishop for want of Jurisdiction for then it would not have been said Eat inde ad praesens but rather ad perpetuum This is but a Temporary dismission no more but as if they had said Well the Bishop saith he was seised of that advowson in Right of his Church Let the King for whom John de Insula prosecutes take his Writ out of the Chancery and try for that And for the Ejection Complained of let that be tryed by a Jury of the Country and see if things can be so ended If not come again then and we will hear you But for the Present we dismiss you So the Lords concluded That this President made nothing against their Jurisdiction To the 2d of Hugh de Louther and the Heire of Edelyngthorp upon which the Commons did so much insist and particularly upon the expression Nec est Juri Consonum nec hactenus in ista Curia usitatum c. The Lords said That neither this President well examined would make much against them For that Adam concerning whom and upon whose occasion that was said was not at all before the Lords as a Partie in the Cause before them but came in of himself unsent for unlooked for layes in a claime which the Lords of that Parliament had not heard of before nor did at all then question So as it cannot be said that there was any dismission of him or of his business But the Lords say Let him pursue and recover his Land by a Writ out of the Chancery if he will and that he sees it convenient for him si sibi Viderit expedire and they go on to determine the business which was before them The Case was thus Thomas de Normanvil an Escheator had order concerning Hugh de Louther for certain Lands then in his Possession which had been seised into the Kings hands as held of him in Capite formerly by Henry de Edelyngthorp to whom one Eston had granted them and to the Heirs of his body lawfully begotten and having none to returne to Eston under whom now Louther claimed The order was That Louther should give Pledge to come and Answer at that Parliament for the profits of those Lands to the King Louther comes as he was bound and at the same time one Adam comes also pretends himself to be Son and Heire to Edelyngthorp and demands the Land Louther said he is a Bastard and the Lands belong not to him And the Lords they say they have nothing to do with him let him sue for his Land where he thinks best and so send him away But Louther they adjudge to do his homage and to be Answerable to the King for the Rent And for the Title of the Land What do they do they let it alone and meddle no more with it as a thing not at all within their Cognizance or Jurisdistion Nothing less They Command the Escheator Normanvil to make enquiry upon Oath if Edelyngthorp had any Heire lawfully begotten who he was and upon what Title he claimed and to give on account of it at the next Parliament Ita quod idem Escaetor ad proximum Parlamentum post Festum Sancti Michaelis Domino Regi distinctè et apertè inde respondeat So as the Lords then were farr from thinking they must not meddle with such things And for that expression of Non est consonum c. rendred as the ground of that Judgment of dismission First it is answered it was no Judgment at all not only of dismission for Adam was no party in the Cause Then it is no part of the Judgment if there were a Judgment but precedes it The Judgment such as it is or rather the Answer to Adams demand followes in these words Dictum est praedicto Adae quod sibi perquirat per Breve de Cancellaria si sibi viderit expedire So as the preceding words may perhaps have been but inserted by the Clerk that entred the Order But take it at the strongest Admit that the Lords then present in the House had inserted those words as their sence at that time Is that binding to the House that it may not be of an other opinion at an other time In that very Parliament of 18 E. 1. How many times have they been of an other mind How many examples are there of Particular Causes Judged and determined by them And shall one Swallow make a Summer one single President overballance multitudes of Presidents to the Contrary In the last place it was said That this President did not Quadrare sure with this present Case of Skinners fort at was meerely concerning a Liberum Tenementum and within the Realm where the Law had free Course here is Rapine Oppression Spoiling of goods dispossessing one of an Island in Fortein parts extra potestatem Legis assaulting the Person of a fellow Subject a violent Interruption of the trade and commerce of the Nation Which concernes the Government of the Kingdome is a matter of State and highly entrenches upon the Authority of the King which will suffer much if he suffer one subject to exercise a Tyrannicall Dominion over an other though in an other Country And is against the profit of the King which is much concerned That no violence be used in the management of trade to bring a Scandal upon the Nation make it stinke in Forrein parts that none will have to do with us which must needs become the ruine of our trade and so of all His Customes If one Merchant do that which is prejudicial to an other or to a Company let them Complain of him to the King who will command him home and punish him And if he will not come for that may be objected being so farr off out of reach then the King will give them leave that are wronged and grieved by him to right themselves But that they should do it of themselves and in their own Case be Judges Witnesses and Executioners against all reason and Justice So the Lords were not at all convinced with this President neither but still thought they had done very well in Censuring the East-India Company for
a desire to relieve them But secondly we must distinguish between a Fact not being a Crime in the eye of the Law which is neither Malum in se nor Malum prohibitum and when the Fact it self being odious and punishable by all Laws of God and Man only a Circumstance as the Place where it was Committe dputs it out of the Power of the ordinary Courts of Justice to take Cognizance of it which are kept to formes and may not trangresse them In the first Case the House of Lords can not punish that for a Crime which the Law doth not make a a Crime but in the second Case God forbid there should be such a failer of Justice in a Kingdome that fellow subjects should robb and worry and destroy one an other though in Forrein parts and there should be no punishment for the wrong doer nor Relief for the party wronged when they come home For then the King might be deprived of many a good subject the Land loose many of her people Trading receive much prejudice and so King and Kingdome suffer great loss and all without remedy But then say the House of Commons Where the Law hath provided and there is an ordinary remedy an extraordinary ought not to be tryed to this the Lords Answer that their House is not an extraordinary remedy but the ordinary remedy in extraordinary Cases and this of Skinners was so both in point of difficulty and point of Compassion And to what is said That it is the Interest of all men in England to be tryed by Juries and there is remedy against willful Juries by Attaint but here is no remedy nor no Appeal It is Answered That the Court of Chancery disposeth of mens Estates without a Jury Every Court of Justice Every Judge in his Circuit sets Fines on mens heads upon several occasions without a Jury Many are tryed for their lives and their Liberties which is more then Estate in the House of Peers upon an impeachment of the House of Commons who are not a Jury nor are sworn therefore that Assertion holds not That all men in all cases are tryed by Juries And for matters of Appeal there doth lye one to the next Parliament or the next Session But it will be said That is to the same Persons And what hopes of any remedy For they wil make good their own Act To this is Answered It is what the Law of the Land hath established We must not be wiser then the Law It is what our Ancestors thought sufficient what hath been the practice of all time And if we leave Posterity in as good a Condition as our Ancestors left us they will have no Cause to Complain Then we must presume that Courts of Justice will do Justice and will do Right that upon better reason shewed upon the Appeal they will alter their minds and give an other Judgement They have done so heretofore How many Judgements of Parliament have been reversed by succeeding Parliaments And where there is Cause for it we must hope they will do so again Then where as it is said That the greatness of the Charge and the Inconveniencies of attending Causes in the Lords House is an Argument against their Judicature They Answer That it is not the House of Lords that appoints such great Fees to Counsel it being left to their Consciences that take them and to the will and discretion of their Clients who give them and who without an Act of Parliament to restraine it may give what they will or rather what they must However The Lords say that the charge in Chancery is greater there having been some times forty fifty Orders made in one Cause and the delay much greater so as some Causes have lasted there very many years And even at the Common Law how many Verdicts have been given in one Cause contrary Verdicts one for the Plaintiff an other for the Defendant Contrary Rules of Court the Judges give a Rule one day and three daies after give an other clean contrary As an Instance of it can be given but of last Trinity Term in the Kings Bench. These are Inconveniences that lye not in the House of Peers But admit there were Inconveniences Many Laws are found inconvenient which yet are put in execution and all obedience given to them whilest they stand unrepealed And the Question is not now of Convenient or Inconvenient but matter of Right Is it the Right of the House of Peers hath it still been the Custome and Usage of Parliaments and consequently the Law of Parliament that they should exercise such a Power of Judicature If it be so as it is and will be sufficiently proved then the point of Conveniency or Inconveniency is out of doors Well may it be a motive to alter it by the Law But we will play with them at their own Weapon and joyn Issue upon that point that the Inconveniency is but imaginary and so farr from an Inconvenience that it is the great advantage of the subject that it should be so As well to give relief in Cases otherwise unrelievable as to assist and help on the administration of Justice when sometimes the greatness and power of some persons would else bear down or much obstruct and hinder the Proceedings of Inferior Courts An objection also was raised How shall the Lords Judgements be executed after the Rising of the Parliament For so the subject may be deceived And when he thinks that with much Charge he hath made an end of his business he is never the nearer And it is Answered that the House of Peers is not as the House of Commons whose Orders are only of force whilest they are sitting they have power sufficient to require Obedience to their Judgements Nor hath it been knowen that ever any Judgement of the House of Peers was not submitted unto and obeyed till now in this Case of Skinners that the East-India Company stands out in defiance and refuseth all Obedience to it In 15 R. 2. N. 17. in the Case of the Abbot of St Oseches complaining against John Rokell for divers Embraceries and for not obeying an Order of the Duke of Lancasters made therein the Lords Confirme that Order and charge the Lord Chancellor to see Rokell perform it Why may not the Lords do the same still if they doubt of Obedience to their Orders But there was never question made of it before And there are many Presidents of Orders given to persons to act some thing in the Intervalls of Parliaments to give an account of it to the Lords at the next ensueing Parliament which shewes that their Authority stil continues to empower those persons to act and to execute their Orders even when the Parliament is risen 15 E. 3. N. 48. The Bishops of Duresme and Salisbury the Earl of Northamton Warwick Arundell and Salisbury are appointed to take the Answer of the Archbishop of Canterbury and to report it to the next Parliament And 51 E.
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
by sickness or other occasion As 50. E. 3. n. 35. it is said The King ordains That from thenceforth no Woman should for Maintenance pursue Matters in the Kings Courts upon pain c. And then was the King sick at Eltham and could not come to Parliament as appears by n. 42. and it was only the House of Peers that made that Order So in Judgments though in Ancient Times they were mostly entred as given by the King yet it was the Lords House which was Curia Regis that gave them For we must know the KING hath a double Capacity of sitting in the House of Peers a Legislative Capacity when he hath in himself a Negative Voice to what even both Houses have concluded and done which signifies nothing without his Assent and his single Dissent makes it all null and void This is in passing Acts of Parliament and making of Laws The other is a Judicial Capacity when he will please to assist and be present at the ordinary Transactions of the House as heretofore was usual which alters not the Constitution of it as it is a Court gives it no more Power nor Jurisdiction then it had before he being then but in a manner as Chief Judge and not doing any thing singly but according to the Plurality of Opinions As when the Kings would in Person sit in the Kings Bench which they have in former times done where still all is said to be done Coram Rege though now he never come there and in Our Memory King James hath set in the Star Chamber I think no body will say the Star-Chamber then or Kings Bench before did or could vary from their ordinary Forms and Rules of Proceeding No more can the House of Peers alter their Proceedings or assume greater Authority by reason of the Royal Presence to take Cognisance of other Causes or do any thing which by the Custome and Usage of the House and the Law of Parliament it could not else have done But their Jurisdiction and their way of exercising that Jurisdiction is still one and the same And therefore 26. H. 6. n. 52. When the King had given a Judgment of himself without the advice of the Lords in the Case of William de la Pool Duke of Suffolk who stood impeached for Ireason banishing him the Realm for five years The Lords entred their Protestation against it as not done by their Assent and so no Act of the House And 5. H. 4. n. II. The Earl of Northumberland coming into the Parliament before the King and Lords and by Petition acknowledging to have done contrary to his Allegiance in giving of Liveries and gathering of Power for which he prayed pardon in regard he yeelded himself and came in to the King at York upon his Letters And the King delivering this Petition to the Justices to be considered The Lords made their Protestation That the Judgment appertained only to them And therefore as Peers of Parliament to whom such Judgement belonged in weighing the Statutes concerning Treasons and concerning Liveries they adjudged the Fact of the said Earl to be no Treason nor Fellony but only a Trespass finable to the King Whereupon the King received him into Grace and pardoned him his Fine All Power of Judicature in Parliament is then questionless in the House of Lords where the King alwayes is Personally or Virtually and the Judgment proceeds from them by the Authority and in the Name of the King For the Power of Judicature in Parliament is lodged in them together with the King as is declared 1. H. 4. n. 80. where it is said That the Commons were only Petitioners and that all Judgments appertain to the King and the Lords unless it were in Statutes Grants Subsidies and such like This hath ever been the Practice and Custom and Law of Parliament since there have been Parliaments and when this shall cease to be the Ancient way of Free Parliaments will cease likewise 1. R. 2. n. 30. Sir John de Cobham sheweth That by the delivery of a Ring of Gold for seisin to Edward the third he had setled the Reversion of several Mannors there named in the Crown and now prayes it may so remain according to his Intention divers Lords are examined the Judges Opinions are asked who declare it to be a good Livery and Seisin And so it is setled N. 32. William Fitzhugh a Gold-finer and Citizen of London exhibits a Bill of Complaint in the Name of the Cōmonalty of that Mystery against John Chichester and John Bolsham of the same Mystery for divers Oppressions done by them The Lords send for them examine them they deny those Oppressions And Fitzhugh refusing then to avow his Bill the Lords commit him to the Tower N. 35. Rober Hawley and John Shakell are by the Lords sent to the Tower for refusing to bring forth a Spanish Prisoner taken in Battel whom they had in their keeping and others laid claim to N. 41. Alice Perrers 〈◊〉 Pierce who bad been much in favour with Ed. 3. is questioned in the Lords House Sir Richard Scroope Lord Steward of the Houshold managing the Tryal for that contrary to an Order made by the King and Lords 50. Ed. 3. n. 35. That no Woman and she by Name should pursue any Matters by way of Maintenance upon Pain of perpetual Banishment and loss of the whole Estate She notwithstanding had perswaded King Edward to countermand Sir Nicholas Dagworth from going into Ireland when he had been ordained by the Council to go thither for urgent business which would have been profitable for the King and the Realm And an other Charge against her was for perswading the King to pardon Richard Lyons who had been Farmer of the Customs and for abuses and extortions had been censured in Parliament to forfeit his Estate and be committed to Prison she got all to be remitted and his Estate to be restored unto him even that part of it which the King had given to two of his own Sons for their lives The hearing of this Cause took up several dayes Many that had been Counsellors and Officers to the late King were examined as Witnesses At last she is found guilty and Judgment of Banishment and loss of Estate given upon her 3. R. 2. n. 24. The Case of the Earl of Pembrock and William le Zouch complaining of Thomas Roos for sueing them concerning Lands in Yorkshire and endeavouring to get a Tryall in the Countrey the Record is Desitant D'estre a Lissue du pays trop suspecieusement his desiring it being suspicious so they pray Que Ils partels Malueis Compassements Procurements en pais ne soient desheritez That they may not loose their Inheritance by such wicked practises and procurements The Lords upon this retain the Cause appoint some Persons to examine and report it But this President hath been cited before at large so I do but touch it here N. 22. Sir Philip Darcy complains That the Prior of St.
Officio The Lords ordered him to be forthwith released The 21th of January the Committee for Petitions report the Complaint of William Waters and Thomas Waters How they had suffered much by an untrue and false Certificate made by Dr. Clerk and Dr. Sibthorp unto the Counsel-Table for their refusing to pay Ship-money whereby they were forced to pay the sum of 34 l for Fees Upon which Dr. Clerk and Dr. Sibthorp were heard at large The Lords ordered them to pay back the 34 l to the Complainants which they had paid for Fees and 100 l Damages And to be turned out of the Commission of the Peace The 22th of January the Committee for Courts of Justice reported the Complaint of the Lady Frances Weld Widdown against the Archbishop of Canterbury and Mr. Dell suggesting That she had been much prejudiced by them in the recovering of a Debt of 1300 l due to her upon Bond from Mr. Child Upon hearing of all Parties the Lords find the Archbp. and Mr. Dell free from blame and order them to be discharged concerning that business The 5th of February the Committee reports the Complaint of Jeremy Powel That the Bishop of Hereford had admitted a Clerk to the Vicarage of Burknill in Shropshire though the said Powel in the Right of himself and of Mary his Wife had caused a Ne Admittas to be directed to the Bishop The Lords upon bearing the business found that the Bishop had done contrary to Law and thereupon ordered him to pay unto Powel by way of Damages the sum of 30 l And the said Powel as Patron to be left in the same condition for tryal of his Right as he was before the Bishop had put a stop to his business The 9th of Febr. the Committee for Courts of Justice reports the Case of Nicholas Bloxam That Andrew Sandeland Clerk had procured a Sentence against him in the High-Commission Court by vertue whereof the said Sandeland had violently gained from him the possession of the Rectory of Great Waldingfield in the County of Suffolk The Lords judging this proceeding of the High-Commission to be most injurious and contrary to Law ordered That the Cause should be left to a tryal at Law at the next Assizes for that County That Sandeland should appear gratis and plead Not guilty that so the Cause might come to a final Determination that Assizes The same day the same Committee report That John Radway William Newark and Walter Cootes were presented Ex officio mero in the Ecclesiastical Court of Glocester and afterwards Excommunicated for going to Church out of their own Parish and upon pretence of a Significavit which was imperfect were arrested and cast into Prison where they continued Eleven dayes whereas there was no Writ justly taken out The Lords Ordered that Dr. Baber Chancellor of Glocester should pay to those three persons 40 l for Damages and the Undersheriffs Deputy Richard Byford 20. l upon the account of the Arrest The 23d of Febr. the same Committee report That Abraham Hill a poor aged man was committed to Prison in the year 1636 by Robert Buxton then Maior of Colchester by verbal command onely without any Warrant or Cause shewed and continued a Prisoner sixteen weeks to his utter undoing The Lords Ordered that the said Buxton should pay unto him 16 l by way of damages The 5th of March the Committee for Petitions inform the House that Complaint had been made before them That Nicholas Haws Gent. an antient man had not yet sued out his Livery in the Court of wards the Lords order him to do it without delay The 11th of March the Committee for Petitions gives account to the House that according to their Lordships direction there had been a Tryal at the last Assizes for Suffolk between Bloxam and Sandeland and that the Verdict had passed for Bloxam whereupon the Lords Order That Bloxam should discharge the Cure as Lawful Incumbent And that Sandeland should deliver unto him the quiet Possession of it It is worthy Observation That the Lords after they had referred the Decision of the Title for Matter of Fact as to the forcible Entry to the Common Law remained still Judges of the Cause and their Judgement setled the Possession The second of April 1641. The Committee Reports That Lambert Osbolstone Clerk had complained of a Sentence in the Star-Chamber by which he was degraded and deprived of all his Spiritual Livings and Preferments being a Prebend of Westminster and Parson of Whethamsted Fined in 5000 l to the King and adjudged to pay the like Sum for dammages to the Arch bishop of Canterbury and to be Imprisoned The Lords Order That be shall be freed and discharged of his Fine Dammages and Imprisonment and be restored to his Prebendary and Parsonage The sixth of April 41. The Committee Reports That the Lady Dyer had made her Complaint That primo Caroli she had lent Sir Richard Tichburn 400 l upon Bond and sued it to a Judgement but Sir Robert Pye Mr. Button and others had extended all the Lands lyable to that Judgement at a far undervalue to deprive her of all the benefit of it The Lords Order That Counsel of both sides should agree to draw up Assurances for setling the payment of all the Parties upon the Judgement and Extent to be all Signed and Sealed by them and that the Lady Dyer should be first satisfied and enjoy the Lands till then One thing by the way is to be noted That Sir Robert Pye was then a Member of the House of Commons The twelfth of April 41. The Committee Reports a Complaint of Dr. Walker That Sir John Lamb had unjustly taken from him his Offices of Commissary of Leicester and of Official to the Archdeaconry there which he injoyed by Patent for life That now Sir John Lamb took the Profits of them to himself And had forced him by many Menaces and Oppressions to release all Suits and Actions to his utter ruine and undoing and to his Loss and Dammage of above 1500 l The Lords Order That Sir John Lamb should pay unto the said Dr. Walker by way of Damages the sum of 1500 l to be levied upon his Lands and Chattels should be brought to the Bar as a Delinquent and there receive a Reprebension The twelfth of June 41. The Committee Reports a Complaint of Edward Bagshaw his Brother Henry and Sisters Mary and Margaret against their Brother Thomas concerning Portions and Annuities given them by their Fathers Will That all parties have been heard and their Witnesses Upon hearing the State of the Matter The Lords Order Thomas to put in Security within four dayes for the payment of the Portions according to the Will And to give security by Land for the paying of an Annuity of 20 l per annum to Edward for term of his life That then the said Edward shall release by a Fine to the said Thomas all his Estate Right Title and Interest in the Lands and Goods of
Johns of Hierusalem sues him in Chancery for the Mannors of Temple-hurst and Temple-newsom which Ed. 3. had granted to John Darcy his Father and produces a Deed shewing that the Priors Predecessor had passed the Fee of them to Ed. 2. The Lords order that Deed to be sent to the Treasurer and Barons of the Exchequer to examine the Kings Title and in the mean time stop Proceedings in Chancery This is more then taking Cognisance of a Matter Originally for they take it out of one Court where it depended and was undetermined and send it to be examined in an other Court which shews the Ascendant they had upon all other Courts 4. R. 2. n. 17. Sir Ralph de Ferriers had been seised by the Duke of Lancaster upon the Marches of Scotland upon suspicion of Treason for holding Intelligence with the French the Kings Enemies upon some Letters of his to several French Lords found and taken up by a Begger He was brought into Parliament before the Lords and put to his Answer He first desired Counsel then offered the Combate against any that would acouse him both were denyed him Then he applyed himself to his Answer And after several dayes hearing the Lords still remanding him to Prison he so well defended himself That the Lords suspected the Letters to be forged and therefore committed the Begger and bayled Sir Ralph delivering him to his Manucaptors 5. R. 2. n. 45. The Chancellor and University of Cambridg Petition against the Major Bayliff and Commonalty of the Town for breaking up their Treasury burning their Charter and by force compelling them to make Releases of some Actions they had brought against the Town and enter into Bonds to them for great Summs The Lords direct a Writ to issue out to the Maior and Bayliffs to appear in Person and the Commonalty by Atturney They appear The Chancellor exhibits Articles against them They being asked why their Liberties should not be seised plead to the Jurisdiction that the Court ought not to have cognisance of them They are told Judgment should be given if they would not answer Then they answer and the business is heard The Townsmen are ordered to deliver up those Deeds forced from the University which are presently cancelled The Town Liberties are seised into the Kings hands and part of them granted to the University Some are granted back to the Town for which they were to pay an increase of Rent Note here is a Plea to the Jurisdiction and that Plea Overruled 8. R. 2. n. 12. The Earl of Oxford complains of Walter Sibell of London for a Slander in having to the Duke of Lancaster and other Noble-men accused him of Maintenance The Lords hear the business Commit Sibell to Prison and give 500 Marks dammages to the Earl 9. R. 2. n. 13. The Case of the Duke of Lancaster complaining That Sir John Stanley had entred upon the Mannor of Latham which held of him and had not sued out his Livery in his Court of Chancery The Lords order him to sue out his Livery But this hath been already mentioned 15. R. 2. n. 16. The Prior of Holland in Lancashire complains of a Riot committed by Henry Trebble John Greenbow and others and of an Entry made by them into the Parsonage of Whit wick in Leicestershire John Ellingham the Serjeant at Arms is sent for them who brings them into the Parliament The Lords commit them to the Fleet. N. 17. The Abbot of St. Oseches complaineth of John Rokell for Embracery This Case hath been already cited N. 18. Sir William Bryan had procured a Bull directed to the two Archbishops to excommunicate some that had broken up his House and carried away Writings This was read in Parliament and adjudged to be prejudicial to the King and to be in Derogation of the Laws for which he is committed to the Tower N. 20. Thomas Harding accuseth Sir John Sutton and Sir Richard Sutton and layeth to their charge that by their Conspiracy he had been kept Prisoner in the Fleet Upon hearing of both Parties for that the two Knights were known to be men of good Fame The Lords adjudge him to the Fleet. N. 21. John Shad well complains against the Archbishop of Canterbury for excommunicating him and his Neighbors wrongfully for a Temporal Cause appertaining to the Crown and to the Laws of the Land The Lords hear the business find the Suggestions untrue and commit him to the Fleet. 1 H. 4. n. 93. Sir William Richill one of the Justices of the Common-Pleas who by express Order of Ri. 2. went to Calais and took the Examination and Confession of the Duke of Gloucester after murdered by Hall was brought a Prisoner into the Lords House the King present and by Sir Walter Clopton Chief Justice apposed And answered so fully shewing his sincere dealing that the Lords one by one declared him innocent And Sir Walter Clopton pronounced him such 4 H. 4. n. 21. The Case of Pontingdon and Sir Philip Courtney where the Lords direct the Tryal appointing what the Issue shall be and what kind of Jury shall be impannelled to prevent Sir Philip 's practices in the Country It hath been cited before at large 1. E. 4. m. 6. n. 16. The Tenants of the Mannor of East-Maine belonging to the Bishop of Winchester the King being in his Progress in Hampshire in the Summer-time complained to him of their Bishop for raising new Customs among them and not suffering them to enjoy their Old ones The King bids them come to Parliament in Winter and they should be relieved They come and the King recommends their business to the Lords They commit it to certain Justices to examine Upon their Report and upon mature Deliberation it was adjudged That the Tenants were in fault That they complained without cause and they were ordered to continue their said Customs and Services Here observe there was the recommendation of the King in the Case just as now in Skinners and this difference that a question of Custom betwixt Lord and Tenants was properly determinable by the Common Law and a Jury of the Visenage and this of a Trespass in the Indies to be punished in Parliament or no where which justifies the Proceedings there 43. Eliz. the 18th of December A Complaint was made to the Lords by the Company of Painters against the Company of Plaisterers for wrong done them in using some part of their Trade Their Lordships referred it to the Lord Maior and Recorder of London to be heard examined adjudged and ordered by them Which was all one as if they had done it themselves For it was done by their Authority and by their Order Qui facit per alium facit perse 18. Jac. The Lords took notice of the Proceeding of the House of Commons in the Case of one Flood whom they had convented before them for insolent and scandalous words spoken by him against the Prince and Princess Palatine examined Witnesses and given Judgment in the Cause
which they look'd upon as deeply trenching upon the Priviledges of their House all Judgments properly and solely belonging to them Thereupon they sent a Message to the House of Commons and desired a Conference At which Conference the Commons confessed That out of their Zeal they had censured Flood But they left him now to their Lordships and hoped their Lordships would censure him In order to which they sent up a Trunk of Writings concerning his Case Then the Lords proceeded to the hearing of it examined several Witnesses and heard all Flood could say for himself which done they adjudged him Not to bear longer the Arms of a Gentleman To ride with his face to the Horse tayl to stand upon the Pillory with his Ears nailed to be whipped at a Carts tayl to be fined Five thousand pounds and to be imprisoned in Newgate during life 21. Jac. Thomas Morley was convented before the Lords for delivering a Scandalous Petition to the House of Commons as himself affirmed against the Lord-Keeper Coventry Upon examination it appeared that it had not been presented to the House of Commons only to their Committee of Grievances that he had published very many Copies of it even since his being convented before their Lordships They adjudge him to be imprisoned in the Fleet to pay 1000 l Fine to stand with his neck in the Pillory to make his Submission and Acknowledgment at the Barr. 22 Jac. Mary Brocas petitioned the Lords to be relieved for a Debt of 1000 l due unto her by Bond from the Muscovia Company Upon hearing both sides their Lordships order the Company to pay the Debt with 5 l per cent Interest out of the Leviations which the said Company had made among themselves for the payment of their Debts The same Parliament May 28. Thomas Pynckney petitions the House in the behalf of himself and other Creditors of Sir John Kennedy to be relieved for Debts owing to them from Sir John by the sale of Barn-Elms Lands in the possession of his Heir John Kennedy The Lords upon examination of the business find cause and so they order it That Barn Elms should be sold to the best value and the Profits to be sequestred in the mean time into indifferent hands And that a Recognizance of 2000 l in which Pinckney stood bound in Chancery should be withdrawn and cancelled The same Parliament again Grizell Rogers Widow petitions the Lords for the setling her Title to certain Lands in Heygrove in the County of Somerset and for quieting and ending divers Suits and Differences between her and Sir Arthur Ingram Sir William Whitmore c. They order her Satisfaction out of particular Lands And all Suits to cease between them And appointed Releases of all differences on both sides to be drawn and sealed 4. Car. 31. Jan. The Lords Committees for Petitions make report to the House of a Petition of Benjamin Crokey against John Smith in behalf of a Grammar-School at Wotton-Underedge in the County of Glocester which School was endowed with great Possessions by the Widow of the Lord Berkly in Richard the 2 ds time which were now much abated and brought to an undervalue by the cunning practices of the said Smith Upon which the Lords awarded a Commission to issue out of the Chancery to survey all the said Lands And ordered also a special Habeas Corpus to be directed to the Warden of the Fleet where Crokey was a Prisoner to bring the Body of the said Crokey before the Lord-Keeper to the intent he might attend the said Commission And ordered further That if Crokey did make it appear the value of the Lands to be so as be said and that to be approved by the Lords Committees for Petitions then Smith to repay to the said Crokey such Charges as he shall disburse in the Prosecution In the Parliament of 1640 Decemb. 16. Upon report from the Lords Committees for Petitions That Mistris James complained against Sir Edmond Sawyer for sheltring himself under a Royal Protection which he had procured by which means she could not sue him upon a Bond of 500 l for so much Money borrowed of her and two years Interest and so was debarred from helping her self by any Legal course The Lords ordered that the said Mris James should proceed against the said Sir Edmond Sawyer for the recovering of her Debt in any Court where she thought best notwithstanding his Protection December 21. The Lords Committees report a Petition of Katherine Hadley complaining that she had been kept a long time a Prisoner in the Common-Gaol in the Old Bridewell without any cause shewn the Lords ordered her Release The 22th of Decemb. Upon a Report from the Lords Committees of Sir Robert Howard's Case complaining that he had been committed Close-Prisoner to the Fleet by the High Commission Court and kept there three months till he was fain for his enlargement to enter into several Bonds with Sureties in the sum of 3500 l For which he desired Reparations and his Bonds to be cancelled The parties interessed were summoned and heard And after due consideration the Lords ordered a thousand pound damages to Sir Robert Howard of which 500 l to be paid by the Archbishop of Canterbury 250 l by Sir Hen. Martin and 250 l by Sir John Lambe the Bonds to be forthwith cancelled and delivered to Sir Robert Howard The 23d of Decemb. They reported the Case of William Dudley that he having arrested the Lord Wentworth son to the Earl of Cleveland for a Debt of 400 l entred a Caution in Mr. Justice Bartley's Chamber for good Bayl to be taken yet Justice Bartley had released the said Lo. Wentworth upon such Bayl as the said Dudley was utterly disabled to recover his debt Justice Bartley being called made no good Answer thereunto The Lords thereupon order that the said Justice Bertley should forthwith assure unto the said Dudley his House and Land near Barnet for securing the said Debt with Interest and Damages The same day they report likewise the Case of Mris Mary Stanhope Widow Daughter-in-law to the Earl of Chesterfield complaining that the said Earle refused to assure unto her 40 l per Annum during her Widowhood according to a former Agreement made between them which appeared to be true by a Letter produced under the Earl's hand And his counsel being heard and no good cause shewn why the Petitioner should not be relieved The Lords ordered the Earl of Chesterfield forthwith to assure to the said Mris Mary Stanhope his Daughter-in-law 40 l per Annum during her Widdowhood and to pay unto her such money as was in arrear of the 40 l per Annum due to her for the space of two years The 30th of December the Lords Committees for examining Abuses in Courts of Justice report the Complainâ—… of John Turner a Prisoner in the Gate-house committed thither by the High-Commission Court where he had lain fourteen years for refusing to take the Oath Ex