make a patent against reason or law That such patent shal be repealed and such Iudgement reversed Without inflicting other punishment upon such Officer oâ— Iudge And the Commons replying to the Answer of the said Earle concerning the first Article did shew to the Lords the copy of his Oath made when he was created Chancellor in manner as followeth YOu shall sweare that well and loyally you will serve our Lord the King and his people in the Office of Chancellor and shall do right to all sorts poore and rich according to the Laws and Usages of the Realm and lawfully shall Counsell the King and his Counsell shall keep And you shall not be privy nor suffer any dammage nor disherison to the K. nor that the rights of the Crown be taken away if you can any way hinder it and if you cannot hinder it you shall make the same cleerly and expresly known to the K. Together with your loyall Advice and Counsell and you shall cause and purchase the profit of the King by all that lieth in you to do reasonably so helpe you God and his holy Gospell ANd praying that the same might be read well understood and the circumstances of the said Answer considered viz. That he had not denied that he received of the Kings gift after that he was made Earle being in the Office of the said Chancellor divers Lands and Tenements which are certaiâ— and sure of the value of 400 marks a yeare which he hath had upon the Custom of Kingston upon Hull which are casuall may deceive the King to his dammage in that behalfe And how he said that he had received part of the â—â—id Lands and Tenements so taken â—n â—xchange before he was Chaâ—cellor The Commons say that he was then of the privy Councell and afterwards sworne in the creation of the Office of Chancellor by the aforesaid Oath and he in that Office agreeing to the exchanges takes and receives the remnant of the said Lands and Tenements in full performance of the exchanges as by his Answer in Parliament aforesaid ANd in Answer to the second Article the Commons replying say That insomuch as he acknowledgeth in his proper protestations That he represented the Estate of the King while he was Officer and so extends his power upon all others wherfore although default was in others he cannot therefore be excused and especially of that which the King had commanded him to speake in Parliament as he had said he was the more bound to put the said matter in execution and to confesse what he denied not the dammages are no lesse than they have surmised They pray the Iudgement of Parliament ANd as to the Answer of the fourth Article the Commons replying say That it shall be found of record in the Exchequer the aforesaid Tydman to be debtor to the King in great summs as they suppose and for that cause the said rent appertaines to the King notwithstandiâ—g he had otherwise forfeited and so the King was deceived and they pray that the records may be examined And further say That one Neele Hackney was killed by his wife and his servant and the said Tydman for which felony the said woman and servant were arraigned found guilty and suffered the Iudgement and execution of the Sentence of the Law and the said Tydman as followeth ANd to the Answer of the fift Article the Commons prayed again proposing the example of one William Thorpe late Chief Iustice of the Kings Bench surmising that he tooke 20 l. of one party who had an Office in plea before him and for that he sold the Law for which cause he was judged to death forfeiture of his Lands and Chattels and say insomuch as the said Earle was so Chancellor and tooke 100 l. c. of the said provision there commanded to be delivered out of the Kings hands of his profits which hee ought to have done according to the command of the K. freely without taking any thing it seemeth to them that hee hath sold the Lawe and prayen Iudgement ANd to the Answer of the sixt Article the Commons replying said That it appertained to him as wise as he is to be well advised and counselled that he assent not nor do such a thing which may tend to the disherison of the King and oppression of his people as he would avoyd the Indurance of the Iudgement of Parliament ANd thereupon the said Earle replying to the Replication of the Commons touching his oath said That to take the words of the said oath without other speciall Intendment no Chancellor heraftet will inseale any thing of the Kings grant to any persons of Lands and Tenements or other Goods without offence of his Oath But the said Earle saith That it is not comprised in the said Oath nor forbidden him to take to himselfe of the Kings gift nor to any other person And for that the Kings gifts to other persons in the said voyage nor of divers other things before be not impeached not holden against the Oath of the Chancellor it seemeth to him that no more he ought to be impeached for the gifts given to his personall estate seeing that in the said Oath it is not forbidden nor restrained to him more than to others more especially for that the said Estate and the Gifts given are confirmed by Parliament and further saith that he accepted of his Oath of Chancellor according to his conscience and power and for the causes before expressed he saith as he shall answer before God that he thinks nothing done in the matters aforesaid against his Oath or understanding of his conscience but that the Chancellour may inseale the Kings guifts to the Loâ—ds for to maintaine their Estate or for other reasonable cause by the Kings warrant and that hee hath done nothing against his Oath c. And saith that that which is comprised in the Oath that hee suffer no dammage not disherison of the King c. That is to bee understood of that which is intended of matters wherof the King hath not cognisance and that appeareth by the clause comprised in the Oath that hee shall make known to the King cleerely and expressâ—ly And after that the King is informed in such manner the Chancellor may doe the Kings Commandement without offence of his Oath and sâ—ith that concerning his Estate and what the King gave him it was expressely done by the Commandement knowledge and will of the King and so not against his Oath and that it may not bee intended that hee should bee impeached concerning this matter ITem as to that that the Commons say that the said Earle hath deceived the King because he hath taken of the King the manner of Faxfleet in value 50. pounds which Mannoâ— was worth 200. l. per annum c. The said Earle answereth that Master William Morris hath reported to him that hee hath taken of the King the two parts of the said Mannor with the rent
King of his grace towards him concerning the fine and ransome and if at any time he doe any thing against our Lord the King other then liegeancy that they make no prayer nor request for him in whatsoever ensueth thereon but that they be altogether against him And also the same Friday it was adjudged by the King and the Lords in Parliament that leave of Battaile be made by the said Mr. Henry Mr. Thomas which are holden to be guilty of Treason and that as well for themselves as for others which shall bee in their company at the time of the said licence And those to whom the King had granted favour and pardon the King will that they stand firmely in their force and vertue Ex rotulo Parliamenti Anno 31. H. 6. N. 26. ITem the Friday the 15. of February it was opened and declared to the Lords Spirituall and Temporall being in the Parliament chamber by the Counsell of the Duke of Yorke that whereas Thomas Thorpe the monday the first day of August in the raigne of Henry the sixt 30. camâ— to the place of the Bishop of Durham and then and tâ—ere tooke and bore away certaine goods and â—attle of the same Dukes against his will and licence and thereupon the said Duke came and tooke an action by Bill in Mich Terme last past against the said Thomas in the Court of Exchequer according to the Priviledge for so much as the said Thomas was one of the Court to which Bill the said Thomas willingly appeared and had divers dayes to imparle at his request and desire and to the said Bill and action pleaded not guilty whereupon there was awarded in the said Exchequer a venire facias to the Sheriffe of Middlesex returnaeble in the said Exchequer and thereby the Iury that passed betweene the Duke and the said Thomas it was found that the said Thomas was guilty of the said trespasse contained in the said Bill and the same Iury assessed the dammages to the said Duke of the said trespasse to a 1000. l. and for his costs 10. l. And thereupon Iudgement was given in the said Exchequer and the said Thomas acâ—â—rding to the â—ourse of the Law was committed to the Fleete for the fine belonging to the King in that behalfe And thereupon it was prayed humbly on the behalfe of the said Duke that it should like their good Lordships considering that the said Trespasse was done and committed by the said Thomas since the beginning of the present Parliament And also the said Bill and action were taken and scanned and by processe of Law Iudgement given thereupon against the said Thomas in time of vacation of the said Parliament and not in Parliament-time and also that if the said Thomas should bee relieved by priviledge of Parliament ere the time that the said Duke bee satisfied of his said dammages and costs the said Duke should bee without remedy in that behalfe That the said Thomas according to the Law bee kept in ward according to the time that he have fully satisfied and contented the said Duke of his dammages and costs the said Lords Spirituall and Temporall not intending to impeach or hurt the liberties and priviledges of them that were come for the Commons of this Land in this prâ—sent Parliament but equally afâ—er the course of the Law to minister Iustice and to have knowledge what the Law will weigh in that behalfe opened and declared to the Iudges the premisses and asked of them whether the said Thomas ought to be delivered from prison by force and vertue of the priviledges of Parliament or no To the which Question the chiefe Iustice in the name of all the Iustices after some Communication and mature deliberation had among them answered and said that they ought not to answer to that question for it hath not beene used aforetime that the Iudges should in any wise determine the Priviledges of this High Court of Parliament for it is so high and mighty in his nature that it may make Law and that which is Law it may make no Law and the determination and knowledge of that priviledge belongs to the Lords of Parliament and not to the Iudges But as for the Declaration of proceedings in the lower Courts in such cases as Writs of Supersedias of priviledge of Parliament to bee brought and delivered to the said chiefe Iustice hee said there be many and divers Supersedeas of priviledge of Parliament brought into the Courts but there is no generall Supersedias brought to surcease all processe but if there should bee it should seeme that this high Court of Parliament that ministreth all Iustice should let the proces of the common Law and so it should put off the party complaynant without remedy for so much as actions of common law be not determined in this high Court of Parliament and if any person that is a member of this high Court of Parliament bee arrested in such cases as be not for felony or Treason or security of the peace or for condemnation had before a Parliament it is used that all such persons should be released of all such arrests and make an Attourney so that they may have their freedome and liberty freely to attend the Parliament After which answer and declaration it was throughly agreed assented and concluded by the Lords Spirituall and Temporall that the said Thomas according to the Law should remaine still in prison for the causes above said the priviledge of Parliament or that the said Thomas was Speaker of the said Parliament notwithstanding and that the Premisses should be opened and declared to them that were common for the Commons of this Land and they should bee charged and commanded in the Kings name that they with good hast and speed proceed to the Election of another Speaker The which Premisses for as much as they were matters in Law by the commandement of the Lords were opened and declared to the Commons by the mouth of Walter Moyle one of the Serjeants at Law in the presence of the Bishop of Elie in the Kings name that they should proceed to the Election of another Speaker with all godly hast and speed so that the matter for which the K. called this Parliament tooke good and effectuall conclusion and end ITem 16. die Febr. tunc prox sequenti praefati Communes quidam de sociis suis declaraveruÌ„t dominis spiritualibus teÌ„poralibus in presenti Parliamento quòd ipsi per mandatum ex parte domini Regis pridie sibi injunct cum omni diligentia exequentes eligerunt loco praefat. Thom. Thorp Thom. Carleton militem prolocutorem suum humillimè deprecando quatenus praefatus dominus Rex hujusmodi electionem vellet acceptare Quâ—bus per domiâ—um Cancellarium Angliae de mandato dicti Domini Regis advisamento consilii extitit respons quod quidem dominus Rex de electione praesenti Thom. Carleton se bene contentavit injungendo eis quatenus ad
expeditionem negotiorum Parliamenti praedicti cum omni diligentia procedâ—rent Iudgements upon Writs of error in PARLIAMENT IF erroneous Iudgements bee given in the Kings Bench or in the Exchequer Chamber upon the Statute of 27. Eliz. cap. 18. the party may have his Writ of â—râ—oâ— retureable in Parliament but not upon judgement given in the Common Pleas untill the same bee â—everâ—ed or affirmed in the Kings Bench as it was answered in Parliament under â—dward the third in the case of the Bishop of Norwich Vpon the Writ of Erâ—or the Lord chiefe Iustice of the Kings Bench is to bring in the Record and a â—raâ—script of it into the Parliament and theâ—e leaveth the Transcript â—ut carâ—â—eâ—h the Record bâ—ck and thereâ—pâ—n the Erâ—ouâ—s beiâ—g assigned or as some Examples are befoâ—e the Assignamus of the Errors order is to bee given that a Scire facias be awarded against the Defendant upon whose appeaâ—anc examination of the Errors by the Lords the Iudgement is either affirmed or reversed AFter the Record thus brought in Clericus Parlïamenti habet inde Custoaiam per duos tantum non per Communitatem assignabitur Senescallus qui cum Dominis spiritualibus ac temporalibus per conâ—ilium Justiciariorum procedat ad errâ—rem corrigendum In which words it is observed that the Lords have power to make a Delegation of their Iurisdiction to a person chosen out of themselves as a Steward to judge for them as also they did in their proceedings against Gomemz and Weston under Richard the second when they apâ—ointed the Lord Scroope for Steward of the Parliament to arraigâ—e the Offenders but this rests at their pleasâ—re whether they will judge themselves together or so appoint a Steward MEmorandum quod Christopherus Wray miles capital Iusticiarius de Banco Regis seâ—u adduxiâ— in â—ar in camera parl inter duos bre de errore billa de regina indors ac rotulat In quibus continebantur placita processus in quibus supponâ—batureâ—ror ib. reliquit transcript totius recordi ciâ— Cler. Parl. super hoc venit Richardus Herbert Ioh. Awbrâ—y Willielmus filiam â—imon Browâ—e in propriis personis suis in Parliamento statim dixerunt quod in recordo processu praedict. in redditione Iudicâ—i praedict. manifestè est erratum in hoc quoâ— postquam Iudicium praedict. in loquela praedict versus praefat. Thom. Gomiel redit fuit antequam praedict. Iohannes Hunt prosecutus fuit impetravit praedict. primum breve descire facias versus praefat. Thom. Ric. Herbert caeteros praedicto manucaptores praedict. Thom. Gomiel nullum breve de capias ad satisfaciendum pro debito damnis praedict. per praefat. Iohannem Hunt in Parliamento praedict. prosequendo Et reternat fuit versus praefat. Thom Gomiel ubi per consuetudinem Curiae dictae Dominae Reginae coram ipsa Regina à tempore contrarii memoria hominum non existit in eadem usitat approbat brev. de Cap. ad satisfaciendum versus eundem Thom. Gomiel pro debito damnis praedict. Parl. praedict. prosequi retornari debet antequam aliquid brev. de sci fac versus manucaptores prâ—dâ—ct in loquela illa impetrâ—nt seu prosequi debe et licet consueâ—udo forum captionum râ—cognitionum in curia praedict. usi fuerunt in forma praedict. viz. si contigerit eundem Thomam Gomiel in Parliamento praedict. convinci tunc iisdem manucaptores concesserunt quilibet eorum per se concessit tam praedict debitum quam omnia damna castag c. praefat. Ioh. Hunt in ea parte adjudicentur de Terris catallis eorum cuislibet fieri ad opus praedict. Iohannis Hunt levari si contigerit praedict. Thom. Gomiel debitum damnae illa praefat. Iohannis Hunt minime solvere aut se prisonae Marescall Dominae Reginae coram ipsa Regina ea occasione non reddere c. Et petiere iidem Rich. Herbert alii praedict. quod Iudicium praedict. processus super bre de scire fac prosecut in curia Dominae Reginae coram ipsa Regina revocetur adnulletur peniâ—us pro nullo habeatur Et super hoc Domini per consensum Iustitiariorum post longam maturam deliberationem cum consensu adjudicaverunt quod judicium praedict. processus super bre de scire fac prosecut in Curia dict. domin Reginae coram ipsa Domina Regina revocetur adnulletur penitus pro nullo habeatur CHAP. V. Bills passed and Judgements given without assent of the Lords Spirituall VNder Edward the third a Petition of the Commons was thus ITem wee are not willing to suffer that payment be made to Cardinalls for their juornying into France for to treat out of the Realme of England THe answer is as to the dispences of Cardinalls it seemeth â—o all the Baronage and other sages of the Kings Councell that the Commons demanded reason and for that they are agreed that it shall be so The like is there in the two Petitions of the Commons against the Clergy carrying money to Rome and Cardinall having benifices here divers Ordinances against the Church of Rome are agreed by the K. the Lay Peers Commons but all the Prelates made Protestation of not assenting or doing what may be or turne in prejudice of their Estate or Dignity The power and direction for Iustices of the peace is ordained at the complaint of the Commons by the King by the assent of the Lords Temporall And so also divers times without mention of the Lords Spirituall who indeed under Edward the 3 protested that they had not to do with matters of keeping the peace THe Commons exhibite a Petition against Procurations from Rome benefices obtained by Letters thence c. It is ordained established by the K. by the advise and assâ—nt of the Lords Temporall that no Benefice is to be had here but by guilt from the Kings Subjects c. and if that any do contrary to this Act he should incurre the danger of a praemunire given by the Statute of 27 E. 3. A Petition in these words Item that the Appeales persâ—ites accusations Iudgements had and rendered c. should be good notwithstanding the Lords Spirituall and the procuratoâ—s of the Lords Spirituall absenteâ— themselvs out of Parliament in time of the said Iudgements rendered for salvation of their eâ—tate As it is contained in a Protestation by which the Lorâ—s Spirituall and Procurators were in this present Parliament c. The King granteth it And the Protestation of the Clergy is entered as followeth For as much as certaine matters were moved in this present Parliament touching openly the crime of the Arch-Bishop of Canterbury and the other Prelates of his Province who made Protestation in the forme and words which followes IN
proces out of the Chancery Kings bench or otherwise where the returne is Coram Rege CHAP. IX Amerciaments IN case of Amerciaments of Barons of Parliament upon nonsuits or other Iudgments ending in misericordia there is a speciall course both for the summe and the way of assertaining of it which differs from the Amerciaments of coÌ„mon persons For the summe the Amerciaments of an Earle or Spirituall or Temporall Baron is equall that is 5 l. of a Duke 10 l. and the sessing of this is by the Kings Iustices before whom the action dependeth The Iustices in this place supplying the roome of Peeres by which according to the grand Charter they are to be amercied as exprâ—ssly it is affirmed in the Iudgement under H. 6. against the Earle of Northumberland where the words of the Iustices are Insomuch as an Earle is a Peere of the Reâ—lme he shall be amercied by his Peeres according to the Statute and therefore we put not the Amerciament iâ— ceâ—taine And thence and thus is the grand Charter to bee understood that saith Câ—mites Barones non amerâ—ientur nisi per Pares suos but continuall usage hath thus as before is shewed interpreted that priviledg and so hath the practise been and thence was it under E. 2. a writ was directed to the Iustices of the Common pleas that they should not amerce the Abbâ—t of Crowland tanquam Baro because he did not hold per Baroniam aut partem Baroniae For this of Amerciament while there were no other Titles of greater Nobility but Earle and Baron which was in the time of E. 3. who created the first Duke in England as Rich. the 2. the first Marquesse and H. 6. the first Viscount And the Amerciaments of the Lords of the Parl. were all at 5 l. whence also is generally so affirmed in the Statutes of Ireland under H. the sixt that every Lord that is called L. of Parl. in all places aswell personall as reall in which amerciaments do ly shall be amercied at 100 s. But when other dignities were made and it seemes according to the proportion of the releifes paied by those new dignities for a Duke is to be amercied at double the summe of an Earle that is 10 l. as his reliefe is double which is 20. CHAP. X. No processe in civill actions to bee awarded against the body of a Baron NO baron of the Parliament or Baronesse is to be arrested by Capias upon action of debt account trespasse or the like but they are to be distrained only and pay issues retorned for an apparance The reason of this was anciently because the Capias in such Cases goes out only upon nihil habet retorned by the Sheriffe which could not be for a Baron who was ever to be supposed to be seised of his Barony by which he might be distrained and lose issues Although the reason failes now in those that have not more than the names alone of their Baronies yet the same Law still remaines but this limited to actions between party and party and party for in cases of rescues felonies or the like where the offence is immediatly to the King A Capias lies against a Baron of the Parl. And it is as other priviledges which are legal in England limited also to the Barons of the Parl. of England for it appeares under R. 2. that in an action of debt a Capias was awarded against the Countesse of Ormond being one Irish Baronesse and participating of her husbands dignities as our Ladies in Eng. neither can a Baron of Ireland be tried here by the Peeres of Eng. for they are not his Peers no more than the L. Zanchar might being a Baron of Scotland who was indicted and arraigned only by the name of Rob. Creighton Esquier and upon this reason that he was no Baron of Parl. tried by a common Iury Thence it is also that an Earle Baron or Duke of France comming into Engl. by the Kings safe conduct shall not in any legall proceedings be stiled so as appeares in the time of Edw. the 1. in the case of the E. of Richmond being then Duke of Brittaine and in the case of Sir John Douglasse under Edw. the 4. And the reason why S. Gilbert Humfravill in the time of Edw. the 3. was legally to have his title in writs of Earle of Anguish was because that in that age the E. of Anguish by that name was L. of the Parl. as it is expresly noted in our year-books And this difference it seemes hath beene here between Temporall dignities and Spirituall that in regard the temporall State of England was ever held as severed and distant from other States not at all communicating with them in civill government Therefore forraigne dignities which are of the Civill part of States had no respect given them as appeares in the examples already brought But on the other side in dignities Spirituall because there was anciently through Christendome supposed an unity in the Church So that England with forraigne Nations and they with England as membeâ—s of one body had a mutuall reference to each others Countrey was legally valued as Bishops in England as may be seen in that case of the Bishop of Vâ—recht for this is the right Name though it be printed Vrston under E. the 3. where being made Bishop of Vtretcht makes a Prebend of England So the Title of Cardinall was usually given in legall proceedings to such as had that dignity in England whence also the Archbishop of Raguse being parson of a Benefice in the Bishoprick of Carliste under King John was it seemes to have been accounted here also an Archbishop for dignity though not for Iurisdiction CHAP. XI A Knight to be retorned upon every pannel where a Baron is party IN every Iury impannelled between any Baron of Parl. and other person whatsoever one Knight at the least is to be returned which failing the array may bee quashed by challenge A testimony hereof aswell for spirituall as temporall Barons is frequent CHAP. XII No day of grace against a Baron IF a Baron of the Parl. be plaintif or defendant in any action and the plaintife or defendant pray a day of grace he shall not have it against him and this is expresly affirmed in the books CHAP. XIII Making deputies of places of trust committed to them Oâ— late years it was agreed in the case of Gilbert Earle of Shrewsbury that whereas the office of Steward-ship was granted to the Earle of Rutland without giviâ—g power to make a deputy and this by Q. Eliâ—abeth that â—et he might exercise the same Office by Deputy by reason of the nâ—câ—ssity that is supposed in the lawe to be of the Eaâ—lâ—s attendancâ— upon the King and the Govâ—rnment of the Kingdome the same reason is it seemes for all Barons FINIS U. 8 Dyer Parl. 14 Eliz. Dyer par â—9 43. Eliz. l. â—ac c. Rot. Parl. 18.