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
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
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.
procured the Arrest brought to the Bar and upon their humble sumbmission pardoned with a check from the Speaker and paying their Fees Three Presidents only there are which Sir Edward Cooke produces of their exercising a Judicature two of them upon their own Members for Miscarriages the third upon one no Member for striking a Member this primo Mariae the other 8. Eliz. 23. But they did not constantly nor frequently do that neither that is not judge and punish either their own Members for any Offence whether against the House or out of the House or any other for arresting or assaulting them till after Queen Elizabeths time For in the 27th of her Reign as appears by the Journal of that Parliament A Member of the House having been served with a Sub-poena the House sent to the Lord Keeper and signified unto him That it was against their Priviledge The Lord Keeper returned answer That he should not submit to any Opinion of the House concerning their Priviledges except those Priviledges were allowed in Chancery and would not recal the Sub-poena So in Matters of Elections they were glad to pray the aid of the House of Peers upon any Miscarriage or Neglect of the Sheriffs as in the 18th H. 6. n. 18. The Sheriff of Cambridgshire Gilbert Hore had made no return of the Knights for the County upon Complaint made to the House of Peers it was Ordered That he should go to a New Election and make Proclamation That no Person should come armed thereunto Any of the Members to be dispensed of their Attendance in the House come to the King and Lords for it So did Sir Philip Courtney Knight for Devonshire 16. R. 2. n. 6. who being accused of some hainous Matter comes to the King in Parliament for the King did then ordinarily sit in Person in the House of Peers and prayes to be discharged his Attendance until he was purged which was granted This was upon the Wednesday and the Munday after at the Request of the Commons he is restored to his place in their House and to his good Name for that he had submitted himself to reasonable Arbitrement saith the Record All this is said with great Respect to the House of Commons and not any wayes to impugn or question their exercise of Jurisdiction upon their Members and for the defence of their Priviledges but only to shew how things were in the beginning and how extensive the Power of the House of Peers hath ever been in their Judicature reaching all Crimes all Persons all Places none exempt And how necessary it is it should be so That there be not a failer of Justice in the Land that no Offender may escape unpunished and no oppressed Person go unrelieved All other Courts having their Bounds and Limits which make them too narrow for some Cases And this trust being in the House of Peers there is remedy in those extraordinary Cases But before I wind up all to a Conclusion a word must be said to answer some Objections which I have met with in a Book intituled the Commoners Liberty printed in the year 1648. The first Objection is an Order of the House of Peers with the Kings Assent to it 4. E. 3. n. 6. by which the King and Lords declare an Agreement made betwixt them That the Lords shall not be held nor charged to give Judgment on others but their Peers And that the Judgements then given shall not be drawn into Consequence to oblige the Peers in time to come to judge other then their Peers against the Law of the Land This the Author of the Book will have to be an Act of Parliament because it is said to be done in full Parliament To which I answer The Record it self shews it to be otherwise The Title is Concordia ne trabatur in Consequentiam That is an Agreement an Accord between Parties that what is done shall not be drawn into Consequence no Law to impose upon them and to oblige them And the expression That it was done in full Parliament and so the Commons present signifies nothing as to inforce what he would infer upon it For admit that yet it makes it not a Law the Commons might be Witnesses to what was done but were no Parties Which must have been to make it a Law They must either have Petitioned for it before or have given their Assent and Approbation after it must either have begun or ended in their House before it had gone to the King for his Royal Assent and then it had been binding and the Law of the Land but there was no such thing here The Occasion of it was this The King had prevailed with the Lords against their Wills and Protestations to the contrary as appears by the Record of that Parliament n. 2. even in a Manner forced them to condemn the Earl of March Sir Simon de Beresford John Matrevers Bogo de Bayons John Devaral Thomas de Gourney and William of Ogle for the murther of Edward the Second and the death of the Earl of Kent all of them Commoners except the Earl of March and none of them called to answer yet some of them in hold and others not Those that were in hold were presently executed and great rewards promised to who should bring in the rest quick or dead The Lords afterwards troubled in Conscience at what they had done and moved with just indignation against themselves made first a Protestation That they would not for the future be Tenus Chargez a rendre Jugement sur autre que sur leurs Pairs be tyed and charged to judge any but their Peers and this they get the King to consent unto and happily for the more Solemnity of the business would have the King declare so much before the Commons And their Indignation together with their Precaution not to be again necessitated to do the like might carry them further to say They would not be obliged to judge any but Peers against the Law of the Land though it will very well bear an other Construction that it was their being in that Manner forced and pressed to do what otherwise they would not have done which they declared to be against the Law of the Land because it is against the Freedom of Parliaments and not their Judging of Commoners to be against the Law of the Land But admit it those Lords then thought it to be so and that they ought not to judge any but their Peers Doth that bind up the House of Peers that they may never be of another mind They are still Masters of their own Orders and alter them and change them as they think good And I look upon this Order as no other nor of no more force then that made 8. E. 1. which is in the Appendix to the Placita Parliamentaria p. 442. concerning Petitions which I have mentioned before and which succeeding Parliaments would not observe And that they did not observe this neither
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
formerly given by the Lords Temporal alone with the Kings Assent is fully ratified and confirmed Which is as strong an Argument to evince and prove the Right of Judicature lodged in that House as is possible And so I shall leave that Pamphleter and now conclude only adding this as mine own sense and wish concerning the Lords exercising this Judicature and in truth what hath been my Observation of their Lordships own Intention and Resolution which themselves have still declared and practised in their execution of it which is this First That though they have an undoubted Right to such an universal unlimited Power of taking cognisance of all Manner of Causes of what nature soever and of the Judging and Determining them if no particular Law do otherwise dispose of those Cases Secondly That their Ancestors have so exercised this Power in all times Ancient and Modern which conveys down that Right to them according to the Maxim usus Consuetudo est Lex Parlamenti what hath been alwayes used by Parliaments is the Law of Parliaments Thirdly That this House of Lords hath ever been careful not to entertain any business which was determinable in Inferior Courts so as charged with doing it they may well take up the Psalmists complaint and say They have laid to our charge things that we knew not and would have us restore what we took not away Though if the Lords had now taken upon them to exercise such an universal Power of Judicature they had medled but with their own that which belongs to them and had done no man wrong had given no just cause of complaint they had but troden in their Ancestors steps continued that in the House of Peers which it hath ever been possessed of And would it not be a shame for them to leave their Posterity in a lower and more curtalled condition then their Predecessors left them to give up a Right and a Priviledge oâ— theirs which as hath been shewed iâ— so necessary to the Publick Justicâ— of the Kingdom But they have noâ— done that which is said of them Anâ— there is no colour for any complaint Why then quarrel with them Why at this time stir a question which lay asleep and for ought we know had never awaked not had else ever been stirred Is this a time to divide to cause needless differences Were it not more desirable nay more necessary to reconcile affections to unite endeavours and to conjoyn the Counsels and Power and Authority of the two Houses of Parliament for composing the differences which already are rather then to create new and especially when no cause is given for it For it may be truly said Here is not Causa litigandi if there be not Animus litigandi Let it be calmly and coolely considered what the Lords have done if they have given any cause of difference if this Apple of Dissention grew with them which hath been maliciously cast in by some of the East India Company and too readily taken up by those whom they had surprised and abused by misinformations Their Lordships have now only done Right to a poor man that was oppressed to ruine by potent Adversaries who had done the wrong in a Forreign Countrey and so were no wayes punishable for it here in the ordinary Course of Law nor the poor man any wayes relievable for no part of his Case as hath been shewed was within the Compass of the Common Law Their new devise of a Fiction which is in truth meerly a Fiction in the whole of it without any real foundation in Law Reason or good Conscience as being grounded upon a falshood and yet this Fiction I say such as it is not applicable to Trespasses so as here had been an absolute Failer of Justice if the Lords had not undertaken it And they undertaking it also not of themselves as making it their own Act but upon the Kings earnest Recommendation when his Majesty and Counsel had in vain spent some years in endeavouring to perswade those severe Adversaries of this poor man to make him some reasonable Reparation and they would not Fourthly And notwithstanding all this that their Lordships should be quarrelled with decried misrepresented by Offenders whom they had before them and that even before they had determined any thing concerning them yet the Petition of those Offenders full of Falsities not onely to be received which under Correction and with great respect be it spoken of them who did receive it was a Manifest Breach of Priviledge but to be believed and Votes to be passed thereupon That the Lords had done that which was not agreeable to Law and which tended to deprive the Subject of the benefit of the Law Fifthly Though these things might well provoke their Lordships to vindicate themselves not only by asserting their Right to so great and extensive a Power which they have done upon good grounds and with evincing Argaments but even employing and exercising it in its full latitude And the same Maxim would justifie them in their so doing which the Poet brought to justifie Caesar in his vast undertakings when the Senate by denying him his just demands gave him the occasion and the boldness to make himself Master of all take that which was denied him and all the rest which happily he had else never attempted the Maxim is Omnia dat qui justa negat So quarrelling with the Lords now upon so unjust a ground and denying them such an apparent Right as they had to give Relief to Skinner would plead their excuse to all the World if they should extend their Power as far as their Ancestors ever did But we will hope better things from them and that as the Apostle saith their Moderation shall appear to all men and that no ill usage will make them depart from their resolution of not interposing their Power where the Law can give a remedy nor entertaining any Cause which is properly determinable in Inferior Courts For that certainly however it might be Lawful would not be expedient and good men will onely do that which is expedient as being that which is most acceptable to God and most beneficial to men which Parliaments will I hope ever do It shall be my Prayer they may to which I am sure all good people will say Amen FINIS
Jamby six Moneths under that trouble and coming home over Land from India 19 Moneths travel the Companies Agents refusing to give him passage in their Ships 1800. Totall 16836 Ryalls Interest for 16836 Ryalls for six years Ryals are valued at Jamby 5 s per Ryal But what they produce here being brought over in black Pepper to the Company clear of all Charges is expected they will ingenously own For The Assault of his Person Loss of six years Time Disappointment of his Trade Attendance and Charge here Disseizin of his Island Being valuable at more than all the other particulars are humbly submitted to your Lordships Discretion Signed Joseph Ayloff The Lords Referrees to this requiring the Answer of the Company receive this as follows To the Right Honourable the Lords Referrees concerning the Demands of Thomas Skinner upon the East India Company IN obedience to your Lordships Order and Direction the Court of Committees of the said Company have considered of the Matter proposed by your Lordships and do humbly offer to your Lordships That for the Nutmegs white Pepper and other things which were seized by the Justice of the place in part of a Debt due to the Company from Frederick Skinner which said Goods were brought to the Companies Accompts though the same were afterwards lost in the Ship Dragon and in the regard the Accompts between the Company and Frederick are concluded and the said Goods not included therein the said Company have alwaies offered to pay for the said Goods and are now ready to pay 3160 Dollars for the same which at 4 s 9. d per Dollar amounts unto the summe of 750 l 10 s And concerning the 1521 Dollars demanded by Thomas Skinner as a Debt due unto him from Thomas Leaver they in complyance with your Lordships desires will bè ready and willing to pay the said fifteen hundred twenty one Dollars amounting to 361 l 4 s 9 d to the said Thomas Skinner so as they may be discharged by the Administrator of the said Thomas Leaver to whom only they are liable it being very reasonable that the Company pay the Debt but once But the Company do utterly disavow that the Company can by any Law or Equity be liable for their Factors Debts Concerning Skinners other Demands for his Ship and for other Goods pretended to be seized on shore The Company do humbly offer to your Lordships That the Company are not liable for the Debt or Action of their Factors unless done by their Order and if the Company should be liable to every ones Clamors and pretences for wrongs done or pretended to be done by their Factors when if any such thing were done the same was not by their Order or Knowledge nor appliable to their use and accompt the same will necessarily impoverish and ruine the Company And the Company gave no Order for the seizure of Thomas Skinners ship nor nothing else of his nor was the same brought to the Companies accompt and the Agents at Bantam expresly ordered the Factors at Jamby not to meddle with the said Thomas Skinners ship who acted accordingly For it appears clearly That Captain Allnut and his Mariners had his Provisions and Stores for their Wages and that the King of Jamby and Jehore seized and kept the ship And his Goods on shore were seized on by Chinenses and other his Creditors and therefore they hope that his continual clamours of oppression shall not take any Impression in your Lordships great Judgments the Company not being able to put a price upon an oppression where none was at least that they are concerned in Yet for the procuring of their own peace and quiet and to prevent all further trouble unto your Lordships and the Company they do submit unto your Lordships disposal such further summe as will make the whole amount to 1500 l which is more than his ship and Goods were ever worth or valued at upon the Insurance at her going forth so as the Company may have thereupon full and final Releases and Discharges from the said Thomas Skinner and Frederick Skinner September 28. 1666. By Order of the said Company Signed Jo. Stanyon Secr. To which Skinner makes this Reply To the Right Honourable the Lords Referrees concerning the Damages done to Thomas Skinner Merchant by the East India Company The humble Reply of Thomas Skinner to the Proposals of the said Company THat since the Rapine and Spoil of the Companies Agents by their commands took from me Nutmegs white Pepper Provisions c. Of 3355 Ryals value if but 3160 Ryals came to their Accompt yet are they answerable for the whole which as the Justice of Jambyes Attestation That they took all without Reason monishes them of the duty of Restitution so the perishing thereof in and with the Companies Ship Dragon threatens them with the Improsperity of ill gotten goods And then though Ryals Cost put on Ship-board in England but 4 s 9 d or 5 s as they go for India yet they come home at above 15 s clear as by Oath of the Companies own Servants appears that when Pepper was sold at London but 11 d a pound though the Company sold ever since Anno 1660 at 11 d 13 d 14 d ½ and upwards therefore they are justly so demanded with Interest The 1521 Ryals owing formerly by Leaver is become the Companies Debt not only because he was their Servant and Agent but because it was seized for them and they have so much in their hands for my satisfaction and therefore are Receivers thereof to my use and may now pay it as safely as they ought honestly to have paid it long since with Interest in manner as those above mentioned Concerning my ship and goods taken on shore my Persecution in Jamby and tedious Journey home for which the Company offer payment by Fictions and Reproaches the sence which the King of Jamby who would have made that Factory a Publick Example had not my importunate Intercessions in Confidence to find Justice at home prevented it had of the Agents Inhumanity And which as their own Letters witness against them was by their Order what ever pretended against Frederick executed against my self and afterward owned by the Company cannot but goade their private Consciences how Insensible soever the Politique Conscience of a Corporation be as it did Allnuts upon his death bed who confest and repented sorely That he had been inticed and incited by the Agents unjustly against me and had nothing of the depredations With what modesty do the Company then upbraid me with pretended debts and calumniat the King and people of those parts and so much undervalue my Ship and Oppression when the contrary to the Companies Knowledg is so clearly manifest Nor are they ignorant of the hopeful Designe in my Plantation and valuable Trade they have destroyed me of which though it plainly appears That my Ships intended Voyage for Maccassor and freight thence for which Consideration above 2000 Ryalls is deducted
What and How much and referr it to the Consideration of a Committee to prepare it for the House And that then in that Interim of time before any thing was determined whilest but in Agitation and under consideration what should be done a Scandalous false railing Petition to be delivered to the House of Commons against the House of Peers contrary to all usage Right and Priviledge of Parliament and what was expresly forbidden 9. H. 4. N. 22. And this not withstanding not knowen upon what mistake for a mistake it must have been to be received with approbation by the House of Commons and seconded and confirmed by those forementioned Votes which were broughâ— up to the Lords and declared unto them at a Publick Conference Aâ—â— these things considered made the Lord very sensible who thought if there haâ— been failings that a gentler application had yet been more convenient but conscious to themselves of none and very confident that what they had donâ— was most Justifiable by the constanâ— course and practice of their House and in it self most Just and Equitable they conceived it absolutely necessary for thâ— Vindication of themselves and the asserting of their Rights to pass likewise two votes in Answer to the two of the House of Commons 1. That the House of Commons entertaining the Scandalous Petition of the East India Company against the Lords House of Parliament and their Proceedings Examinations and Votes thereupon had and made are a Breach of the Priviledges of the House of Peers and contrary to the faire cor-respondency which ought to be betweene the two Houses of Parliament and unexampled in former times 2. That the House of Peers taking Cognisance of the Cause of Thomas Skinner Merchant a Person highly oppressed and injured in East India by the Governour and Company of Merchants of London trading thither and over-ruling the Plea of the said Company and adjudging 5000 l damages thereupon against the said Governour and Company is agreeable to the Laws of the Land and well warranted by the Law and Custome of Parliament and Justified by many Parliamentary Presidents Ancient and modern Two Conferences past between the Houses upon this occasion One asked by the House of Commons the other by the Lords and what past at both the objections of the one side and the others Answers What was said by the Commons against the Proceedings of the Lords and what by the Lords to maintaine what they had done the substance of all that was said on both sides I shall here set downe as briefly as can as I find them entred in the Journal Book of the House of Lords where they are now a Publick Record The Gentlemen of the House of Commons that managed the Conference on their parts endeavored to maintain their votes by shewing the reasons of them They said that Pleas being of two natures Common Pleas and Pleas of the Crown in this Case they said they did not meddle with any part of their Lordships Judicature concerning Pleas on the Crown this being of the First sort and those being of two natures Personal or Real actions and in both all proceedings must be by the Kings Original Writ And this being a Case between Person and Person and so a common Plea ought to be proceeded in the Ordinary way by the Kings Original Wriâ— Presidents were brought for this vshered in with a Preamble That where the party never pleades to the Jurisdiction of the Court it is ordinary for Courts to proceed though in Cases not within their Jurisdiction The Presidents cited were out of the Placita Parliamentaria four in Ed. 1. time 1. President 18. E. 1. Johannes de Insula against the Bishop of Winton fol. 33. John de Insula prosecutes for the King Complains that the Bishop had disposed of an Hospitall which belonged to Queen Eleenor the Kings Mother and ejected her Tenant the Bishop Pleads that he found his Church seised of that advowson petit Judicium si debeat sine Brevi Domini Regis inde respondere The Judgement is Et quia praedictus Episcopus invenit Ecclesiam suam seisitam de praedicta advocatione tempore Creationis suae Ideo ipse quoad hoc eat inde fine die ad praesens Dominus Rex habeat Breve versus ipsum Episcopum quod reddat ei Advocationem c. quoad Ejectionem inquiratur veritas per Patriam 2. President in the same Parliament 18. E. 1. The Case of Hugh de Louther and the Heirs of Henry de Edelynthorp F. 43 Where it was much insisted upon these words Nec est Juri consonum vel hactenus in Curia ista vsitatum quod ali quis sine Lege Communi Brevi de Cancellaria de Libero Tenemento suo respondeat Et maxime in Casu vbi Breve de Cancellaria locum habere potest There fore dictum est praedicto Adae quod sibi perquirat per Breve de Cancellaria si sibi viderit expedire 3. The Case of William de Valentia Earl of Pembrook Jone his Wife and Isabell le Mareschal 18. E. 1. p. 44. Isabell Complaines of the Earl for assuming Jurisdiction in the Commote or Hundred of Esterlow which is in the Kings County of Kermerdyn and not in Pembrook-shire which belongs to the Earl and ejecting her He pleads that he is seised of it in the Right of his Wife and they crave Judgement si sine Brevi Domini Regis inde debent respondere The Judgment is Quia praedicti Willielmus Johanna sunt in Seisina de praedicta Jurisdictione per discensum haereditarium non per Usurpationem seu Purpresturam quod eant inde sine die ad praesens Dominus Rex habeat Breve si voluerit The Gentlemen of the House of Commons observed upon this That if there had been a Crime as Usurpation or Purpresture such Cases had usually been tryed in the Lords House But then added That if that had been the Case much might be said now how the Constitution of the Government hath been altered since The 4 th President in the 18. of E. 1. F. 51. was the Case of Roger de Somerton and the Prior of Buttele Somerton followes for the King and by Petition Complaines that the Prior unjustly withheld from the King the mannor of Somerton The Prior Answers that he holds it in the Right of his Church of Buttele petit Judicium si debeat inde sine Brevi Domini Regis respondere The Judgment is Ideo praedictus Prior quoad hoc eat inde sine die ad praesens Dominus Rex habeat Breve c. And this though the King was concerned as was observed by them By these Presidents they said it did appear that in Cases of Free-hold there is no Proceeding without an original Writ and then necessarily and Demonstratively it must follow That the Lords can not Judge in these Cases for there was never any Writt Returnable Coram Dominis Spiritualibus
their Misdemeanors and wrongs done to Skinner and in adjudging them to give Skinner Reparation for it The 3d President was that of william de Valentia and Isabell de Mareschal in which the Lords observed the dismission to have been only ad proesens But withall observed that the bare reading of the Case in the Book will satisfy one of the Jurisdiction of the Peers to retaine such Causes It sayes That William de Valentia had at the fore going Parliament been Ad querelas Isabellae le Mareschall allocutus et ad rationem positus impleaded and put to Answer by what right he assumed such an Office and such Power in the Hundred of Hosterelegh and that he then alleged he did it in the Right of his Wife and that it being his Wifes Inheritance he ought not to be put to answere without her Ita quod datus fuit dies ei ad hunc diem ad Parlamentum Domini Regis viz. a die Paschae in ires Septimanas And then his Wife and he appeared by their Atturney and after pleadings The Judgment is Quia praedicti Willielmus Et Johanna sunt in seisina de praedicta Jurisdictione et de Haeredicate ipsius Johannae per descensum haereditarium et non per Usurpationem seu Purpresturam c. Consideratum est quod eant inde sine die quoad praesens Et Dominus Rex habeat Breve si voluerit c. The Lords knew they had Jurisdiction else they would have dismissed the Cause the Parliament before and not have adjourned it to the next Parliament upon that ground to make the Wife a Party as we see they did And whereas the Commons had upon this President observed that if there had been Crime in the Case as Usurpation or Purpresture then they acknowledged that in such Cases the House of Lords did usually proceed and try them but withall added That if that were the question much might be said how the Constitution of Government hath been since altered So as they soon retracted their admittance of but so much of the Lords Right and what they had given with their right hand they would soon take again with their left But first for their Concession of Judging Crime the Lords say that suffices for their Jndemnity as to what they have done in this particular Case of the East-India Company and Skinner for here is Crime sufficient and Usurpation and Purpresture taking them in the larger sence for invading any other mans Right and not only where the King is concerned as those termes are taken some times And then for the Qualification of their Gift upon the Change and alteration of the Government The Lords Answer That when they shew the Time when that alteration was made and the Persons by whom and the Manner how if Legally done they shal then believe submit and not till then But they never heard of any thing that till now so much as looked that way except that Vote of the Assembly called the Rump which declared the House of Lords useless and dangerous and therefore to be abolished and taken away and by a Clubb Law they did take it away But even they that passed that Vote and did make that Clubb Law thought the Judicature necessary and fit to be continued for they immediatly assumed it to themselves and fairely voted themselves into that Power by the Name of the Commons of England the very same Title that the East-India Company do now make use of in their Petition to the House of Commons To the 4th of Roger de Somerion prosecuting for the King and complaining of the Prior of Buttele for unjustly withholding from the King the mannor of Somerton And the Judgment upon it Ideo praedictus Priot quo ad hoc eat inde sine die ad praesens The Lords say it is but a Temporary dismission as the others were and signifies nothing as to the point of Jurisdiction And they wish the Commons would have pleased to cast their eye upon the ensuing Case in the same leafe of William de Valentia again and of him upon the same occasion concerning his Wifes Inheritance as formerly where there is not a Dismission of the Cause as formerly but a determination of it and that determination again referred unto and confirmed by a suceeding Parliament to shew that the House of Lords sometimes would and sometimes would not Judge and determine such causes as were brought before them That Case was thus William de Valentia Complaines of the Lords of the Counsel for admitting during the Kings absence beyond the Seas one Dionisia a pretended Daughter of William de Monte Caniso Tenant to the King of Lands held in Capite and formerly enjoyed by her Father in his life time Whereas his Wife was true Heire to that William and the Land belonging to her The Lords of the Councel justifie what they have done say that Dionisia was notoriously known to be the true Daughter of that William and that the Bishop of Winchester in whose Diocess she was born testified it The Judgment is Ideo videtur domino Regi quod praedictus Comes Thesaurar Alij de Consilio bene et rité processerunt It is not now sibi perquirat per Breve de Cancel They do not referr him to the Chancery as they did in the other Case This was in 18 E. 1. In 20 E. 1. p. 103. he comes again to Parliament and renues his Complaint and that Judgment given before is confirmed the words are these et de alijs Petitionibus suis viz. De hoereditate Willielmi de Monte Caniso petenda et etiam quod procedatur juxta Bullam quam jidem Williemus et Johanna impetrarunt ad inficiendum Processum perquod Dionisia filia proedicti Willielmi Legitima censebatur alias eis responsum fuit viz. in Parliamento post Natale Domini Anno 18. ut patet in Rotulis ejusdem Parliamenti Ad quam Responsionem se teneant c. Nothing can be clearer then the continual practice of this Jurisdiction in the House of Lords whensoever they pleased Not that it hath alwaies pleased them to trouble themselves with exercising this Jurisdiction their time having been so taken up some times with businesses of a higher Nature that they could not attend it so as many times they have tyed up themselvesby an Order of the House not to receive any private business As in the Close Roll 18 E. 1. There is a memorable Order to that purpose I will set it down at length in the very words which are these Pur ces Ke la gent Ke venent al Parlement le Roy sunt sovent destaez et destourbez a grant grevance de eux e de la Curt par la multitudine des Peticions Ke sunt botez devant le Roy de quevx le plus porreient estre espleytez par Chanceler et par Justices purveu est Ke tutes les Petitions Ke tuchent le sel vegnent primes al
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
Pasch le Conseil qil moy averont donnez et fray envers vous ceque fere deveray Sir I am your liege man for the Kingdome of Scotland and do pray that as to what you have proposed unto me which concernes the People of my Kingdome as well as my self you will have patience till I can speak with them that I be not surprised for want of Counsel seeing those who are here with me will not nor dare not give me their advice without the rest of the Kingdome And when I shall have advised with them I shall give you for Answer at your first Parliament after Easter that which they shall counsel me and shall do unto you that which I ought to do This request of his did King Edward grant the Record saith Et Dominus Rex habito super hoc Consilio ad Rogatum praedictum praedicti Regis Scotiae et etiam ad Instantiam Procerum et Magnatum de Consilio suo et Gratia sua speciali et similiter de Consensu praedicti Magdulphi concessit ipsi Regi Scotiae supplicationem suam et diem ei dedit ad Parliamentum suum post Pascha viz. in Crastino Sanctae Trinitatis c in omnibus in eodem statu quo nunc Idem dies datus est praefato Magdulpho Et per ipsum dominum Regem dictum est praefato Regi Scotiae et injunctum quod habeat ad praefatum terminum praedicta Brevia quae cognovit se recepisse ut supra dictum est He must not forget to bring the Writs with him 1 R. 2. n. 29. A Scire facias is awarded against the Earl of March to appear before the Lords at the next Parliament and to abide further Order And 2 R. 2. n. 33. the Sheriff of Shropshire makes his return that the same Earl was not found in his Bayliwick it seemes he was dead for there was then an other Scire facias ordered to warne his Son who was then Earl to be and Answer at the next Parliament after 13 R. 2. n. 12. Upon a complaint of the Bishop and Dean and Chapter of Lincolne against the Mayor and Townesmen for some wrongs done them in Execution of their Charter by order of Parliament a Writ was directed to the Mayor and Bayliffs of the Town to appear at a certain day before the Lords with Authority from their commonalty for abiding their Lordships determination they appear but not coming with full Power they are adjudged in Contempt By the same Parliament such a Writ is directed likewise to the Mayor and Bayliffs of Cambridge upon 〈◊〉 Petition and Complaint from the Vice-Chancellor and Scholars and they run the like fortune to be adjudged in Contempt for the like cause So then there are Writs made returnable in Parliament And many other examples may be given and some more will be given in this Discourse and Presidents cited upon other occasions where Writs have been Issued so returnable Which shall be observed as we go along And these few shall in this place suffice to disprove that Assertion Nor indeed was there any thing said on that side that did not receive a full and satisfactory Answer For what was said of an Act of Parliament to give Skinner relief for his Island doth in truth deserve no Answer for it were ridiculous to think an Act of Parliament or any thing else but an Army could put him into Possession of his Island again And it would be altogether useless unto him could he so obtaine it his Plantation there being utterly destroyed and all his goods spoiled and lost both there and at Jamby so as it would be impossible for him to carry on his trade to any advantage Therefore it is Reparation and Satisfaction for his Damage which he must have And that is not the work of an Act of Parliament but of a Court of Judicature That advice then is not to be followed and so we will leave it It now remaines but to set forth the Presidents which the Lords did on their part alledge with some few more Antient ones which shall be added for the Vindicating and Asserting of their Right unto this never before controverted point of their Judicature in all Cases of what nature soever when some thing extraordinary in those Cases did induce them to exercise it Of which they were the sole Judges that being a Trust lodged in them by the very Frame and constitution of the Government In the black Book in the Tower which is Printed by the Name of Placita Parliamentaria 30 E 1. F. 231. is the Case of Sir VVilliam Paynell and Margaret his Wife suing for Dower upon the Lands of John Cameys who had been Margarets former Husband and whom she had left he yet living And they now desiring tobe tryed by their Country upon the point of Adultery and the Lords not allowing of it This hath been at large expressed before therefore I only mention it now In the same Book p. 266.33 Ed. 1. The Case of Nicholas Segrave who was tryed in Parliament for leaving the Kings Army then in Scotland and goeing over into France to fight with one John de Crumbwell upon a falling out between them they being together in the Kings Army This was a case not tryable in VVestminster-Hall nor punishable in any ordinary Court of Justice by the Common Law of England yet the House of Lords could try him and adjudge him worthy of death And one thing more is observable in that Record That a Writ is Issued to the Sheriff of the County to take foure Knights with him and in their presence to Summon Segrave Quod esset Coram Domino Rege in proximo Parliamento suo apud VVestm ad audiendum voluntatem ipsius Regis et ad faciendum et recipiendum ulterius quod Curia Domini Regis consideraret in Praemissis So here is a Writ returnable in Parliament and the Sheriff did accordingly make his returne that he had Summoned and charged him Quod esset coram Domino Rege in isto Parliamento nunc juxta formam et Tenorem Mandati praedicti c. It was therefore a gross mistake to say That never any Writ was made returnable in Parliament as it was likewise one to say That the House of Peers could give no remedy where there was not remedy at Law this President proving the Contrary to both 21. Ed. 1. p. 135 136 c. The Arch-bishop of York is questioned in Parliament for excommunicating the Bishop of Duresme The ground of the Excommunication was For that the Bishop of Duresme had imprisoned two Persons employed by the Arch Bishop to cite the Bishop to appear before him The Arch Bishop appeals Et dicit quod de sententia a Canone lata per ipsum declarata in Curia Domini Regis non debet respondere The House of Lords goes on The other side alleadging That the Bishop in his Temporal Capacity as Count Palatin had committed those men