a jurisdiction especially when many in number are produced and some of all times and in every Kings Reign of which the Records can be had which shewes a Continuance of and so an unquestionable Right to such a power One or two or twenty then in the Negative that the Lords did not do so in such and such Cases Nay I say more were the Number equall as many in the Negative as in the Affirmative yet it could not disprove their Jurisdiction It would only shew that their Lordships were free Agents to do it or not do it as they saw Cause But their Jurisdict on remained still enure to do it whensoever they would And when all is done I may say all this is Nihil ad rem and concernes not the point in question which is If the Lords have done well or ill in relieving Skinner against the East-India Company for he was not relievable aâ— the Common Law as hath been shewed And if he had not been relieved there had been a failer of Justice So as there was a necessity of their Lordships acting in that particular to keep up the publick Justice of the Kingdome And all Presidents and all that can be said and urged to shew that the House of Peers ought not to meddle with matters determinable at Law are in truth out of doors and can not concerne this House of Peers which never did it but the contrary For whensoever it appeared that any business before them was proper to be tryed at Law they presently dismissed it Yet since their Right is questioned they must defend it though they gave no Occasion for it having not at all put that Right in execution nor as it may well be presumed by their proceeding hereto ever intending it As to the 6 other Presidents oâ— Petitions Answered in the Parliament of the 14 of E. 2. which the Gentlemen of the House of Commons themselves seemed not to lay so much weight upon The Lords thought they did wisely in it for they were not such as would bear weight to build upon The Lords of that Parliament according to the several natures of the businesses Petitioned for dismissed the Petitioners with several directions Which shewes they took Cognizance of those matters One was directed to take out his Writ novaedisseisinae and an other to bring his action of Trespass the third they send to the Common Law the fourth into the Chancery the fifth they Order to bring his action of debt the sixth who complained of several things to him they gave particular Answers and particular Directions to every point One of which they said pertained not to the King that is to his Laws so they could give no Order in it it was concerning the Resignation of a living which was to be tryed by the Laws of the Church For the other points they disposed them into their proper Channells Was this to be done by a Court that had no Jurisdiction in these matters No rational man can think so But it would be considered that in this Case of Skinners the Lords could give none of those Answers neither sibi perquir at per Breve de Cancellaria not Sequatur ad Legem Communem or tobring this or the other Action For neither Law nor Equity in the Ordinary way of the Inferior Courts could relieve him for the loss of his real Estate in the Indies the Judges said he was not relievable for his House and Island So as none of those Presidents are applicable to the point in question Not that the Law even in the ordinary execution of it provides not for the punishment of all Crimes It declares against and condemns the Fact but can not reach the person to punish him when he hath committed that Fact in a Forrein Country Ubi lex Angliae non currit And the House of Peers hath but helpt the Law to inflict such punishment upon Offenders as by the Law was due to them which otherwise they had escaped And were it but this it sufficiently justifies the Proceedings of the Lords in that particular Case Then as to the Jurisdiction of that House in the generall it will be made as apparent as the Sun at Noone how they have in all times exercised it to the relief of all persons who stood in need of their relief even for things done within the Kingdome Where the Law had provided a remedy they applyed it Some times themselves would take the pains in Cases that deserved it where there was some thing extraordinary to move them to it and when they were at leisure from the more weighty and important Affaires of the Kingdom Some times they would send it down to the Inferior Courts to do it for them and give them Authority for it which they could not have done if they had not had it themselves for Nemo dat id quod non habet as in the Case of certaine Rioters 11 H. 4. N. 38. in the Exact Abridgement Whom they turned over to the Kings Bench and gave those Judges Authority to the end the busines where the Law had not provided there they would not meddle themselves and declared it so That none else neither should presume to meddle As upon the Petition of Martin Chamberlain in that 14 E. 2. p. 409. Who upon the suppression of the Knights Templers desired to be put into the possession of a mannor which the Templers whilest they stood had held of him The Answer is Quod non est Lex ordinata there was no Law ordained in the Case And because the Law had not determined how those Lands should be disposed of the Lords would say nothing to it But will it not be said that this makes good what the Commons objected against the Lords retaining this Cause of Skinners because some parts of it were not determinable in Westminster-Hall Whereas there being no Law concerning those points till there had been one made their Lordships should not have meddled with them As the Lords in that Parliament of E. 2. would do nothing in Chamberlains Case because the Law had not provided for it And as in those two Cases mentioned by the House of Commons That of an Inheritrix Forfeiting by her husbands default where as the Statute of Westminster the second expressed it a Durum est was in the Case And that of the Hospitall of St. Leonards 2 H. 6. N. 37. which had a clear Right to a Corn Rent Yet the Lords could not relieve them but both were faine to have Acts of Parliament This receives a twofold Answer One That there are other Motives in this Case to make the Lords retain it and give Skinner Relief Here is a poor man oppressed by a rich Company with whom he was no waies able to wage Law And that Consideration hath in all times prevailed with that House which is composed of Persons of generous and noble Spirits who can not see poor men oppressed without feeling in their hearts an Inclination and
Johns of Hierusalem sues him in Chancery for the Mannors of Temple-hurst and Temple-newsom which Ed. 3. had granted to John Darcy his Father and produces a Deed shewing that the Priors Predecessor had passed the Fee of them to Ed. 2. The Lords order that Deed to be sent to the Treasurer and Barons of the Exchequer to examine the Kings Title and in the mean time stop Proceedings in Chancery This is more then taking Cognisance of a Matter Originally for they take it out of one Court where it depended and was undetermined and send it to be examined in an other Court which shews the Ascendant they had upon all other Courts 4. R. 2. n. 17. Sir Ralph de Ferriers had been seised by the Duke of Lancaster upon the Marches of Scotland upon suspicion of Treason for holding Intelligence with the French the Kings Enemies upon some Letters of his to several French Lords found and taken up by a Begger He was brought into Parliament before the Lords and put to his Answer He first desired Counsel then offered the Combate against any that would acouse him both were denyed him Then he applyed himself to his Answer And after several dayes hearing the Lords still remanding him to Prison he so well defended himself That the Lords suspected the Letters to be forged and therefore committed the Begger and bayled Sir Ralph delivering him to his Manucaptors 5. R. 2. n. 45. The Chancellor and University of Cambridg Petition against the Major Bayliff and Commonalty of the Town for breaking up their Treasury burning their Charter and by force compelling them to make Releases of some Actions they had brought against the Town and enter into Bonds to them for great Summs The Lords direct a Writ to issue out to the Maior and Bayliffs to appear in Person and the Commonalty by Atturney They appear The Chancellor exhibits Articles against them They being asked why their Liberties should not be seised plead to the Jurisdiction that the Court ought not to have cognisance of them They are told Judgment should be given if they would not answer Then they answer and the business is heard The Townsmen are ordered to deliver up those Deeds forced from the University which are presently cancelled The Town Liberties are seised into the Kings hands and part of them granted to the University Some are granted back to the Town for which they were to pay an increase of Rent Note here is a Plea to the Jurisdiction and that Plea Overruled 8. R. 2. n. 12. The Earl of Oxford complains of Walter Sibell of London for a Slander in having to the Duke of Lancaster and other Noble-men accused him of Maintenance The Lords hear the business Commit Sibell to Prison and give 500 Marks dammages to the Earl 9. R. 2. n. 13. The Case of the Duke of Lancaster complaining That Sir John Stanley had entred upon the Mannor of Latham which held of him and had not sued out his Livery in his Court of Chancery The Lords order him to sue out his Livery But this hath been already mentioned 15. R. 2. n. 16. The Prior of Holland in Lancashire complains of a Riot committed by Henry Trebble John Greenbow and others and of an Entry made by them into the Parsonage of Whit wick in Leicestershire John Ellingham the Serjeant at Arms is sent for them who brings them into the Parliament The Lords commit them to the Fleet. N. 17. The Abbot of St. Oseches complaineth of John Rokell for Embracery This Case hath been already cited N. 18. Sir William Bryan had procured a Bull directed to the two Archbishops to excommunicate some that had broken up his House and carried away Writings This was read in Parliament and adjudged to be prejudicial to the King and to be in Derogation of the Laws for which he is committed to the Tower N. 20. Thomas Harding accuseth Sir John Sutton and Sir Richard Sutton and layeth to their charge that by their Conspiracy he had been kept Prisoner in the Fleet Upon hearing of both Parties for that the two Knights were known to be men of good Fame The Lords adjudge him to the Fleet. N. 21. John Shad well complains against the Archbishop of Canterbury for excommunicating him and his Neighbors wrongfully for a Temporal Cause appertaining to the Crown and to the Laws of the Land The Lords hear the business find the Suggestions untrue and commit him to the Fleet. 1 H. 4. n. 93. Sir William Richill one of the Justices of the Common-Pleas who by express Order of Ri. 2. went to Calais and took the Examination and Confession of the Duke of Gloucester after murdered by Hall was brought a Prisoner into the Lords House the King present and by Sir Walter Clopton Chief Justice apposed And answered so fully shewing his sincere dealing that the Lords one by one declared him innocent And Sir Walter Clopton pronounced him such 4 H. 4. n. 21. The Case of Pontingdon and Sir Philip Courtney where the Lords direct the Tryal appointing what the Issue shall be and what kind of Jury shall be impannelled to prevent Sir Philip 's practices in the Country It hath been cited before at large 1. E. 4. m. 6. n. 16. The Tenants of the Mannor of East-Maine belonging to the Bishop of Winchester the King being in his Progress in Hampshire in the Summer-time complained to him of their Bishop for raising new Customs among them and not suffering them to enjoy their Old ones The King bids them come to Parliament in Winter and they should be relieved They come and the King recommends their business to the Lords They commit it to certain Justices to examine Upon their Report and upon mature Deliberation it was adjudged That the Tenants were in fault That they complained without cause and they were ordered to continue their said Customs and Services Here observe there was the recommendation of the King in the Case just as now in Skinners and this difference that a question of Custom betwixt Lord and Tenants was properly determinable by the Common Law and a Jury of the Visenage and this of a Trespass in the Indies to be punished in Parliament or no where which justifies the Proceedings there 43. Eliz. the 18th of December A Complaint was made to the Lords by the Company of Painters against the Company of Plaisterers for wrong done them in using some part of their Trade Their Lordships referred it to the Lord Maior and Recorder of London to be heard examined adjudged and ordered by them Which was all one as if they had done it themselves For it was done by their Authority and by their Order Qui facit per alium facit perse 18. Jac. The Lords took notice of the Proceeding of the House of Commons in the Case of one Flood whom they had convented before them for insolent and scandalous words spoken by him against the Prince and Princess Palatine examined Witnesses and given Judgment in the Cause
his Father deceased And that a Statute of 1600 l entred into by the said Thomas Bagshaw to John Gell Esq shall be discharged and made void And that Thomas Bagshaw shall make a Release to the said Edward of all Debts and Demands The sixteenth of June 41. The Lord Audley Complains by Petition That the Lord Cottington kept from him the Mannor of Fonthill and prayed Relief therein Upon hearing Counsel on both sides the Lords dismissed the Petition The twenty third of June 41. The Committee for Petitions Reports That Mistris Walter had preferred a Petition setting forth That William Walter her Husband will not permit her to cohabit and dwell with him nor allow to her and three Children any thing for their support The Lords Order her to repair to her Husband and offer to live with him and if he shall refuse to admit her that then he shall allow her 60 l per annum for her Maintenance The 21 th of July 41. A Petition was exhibited before the Lords by sundry Officers and Clerks of the Court of Common Pleas shewing That the disposing of the Offices of Protonotaries Phitizers Exigenters and other Offices of the said Court had time out of mind belonged to the Chief Justice of that Court for the time being but several Grants and Patents had been obtained from his Majesty for the disposing of the said Offices and therefore they prayed That all those Grants and Letters Patents might be recalled The Lords heard Counsel upon it and after mature deliberation declared That the said Offices do of Right belong to the disposition of the Lord Chief Justice of the Common Pleas And the Grants formerly made by Letters Patents of the said Offices to be Illegal and void And Ordered the said Patents to be brought into the House There is likewise in the Journal Book of that Parliament mention made of a Petition of one Thomas Smithick preferred the tenth of June 1641. Complaining of wrongs sustained from the East India Company and likewise of a Petition from the East India Company full of Respect and Submission to the House of Lords and praying a longer day then it seems was appointed for hearing the Merits of the Cause which the Lords granted and Ordered all such Books Certificates and Writings as were in the Custody of the Company concerning that business should be produced and Smithick to peruse and take Copies of them What was more done upon this Petition of Smithicks appears not by the Journal Book probable they compounded the business among themselves But however it is observable the different Spirits of the East India Company then and of this now The Modesty of that and the Carriage of this so far differing In those times no question was made of the Power of the Lords in point of their Judicature nor no Complaint against their practice of it Yet we see the frequency of it in Causes of all Natures Criminal Civil Mixt between King and Subject between Subject and Subject no Protection no Priviledge did exempt any body from their Jurisdiction The Lords at the Conference as they said to the Gentlemen of the House of Commons were the more Copious in the enumeration of these later Presidents especially those of 1640 and 1641. not that they thought themselves at all to stand in need of them the antient ones before produced shewing the usage all along from the very first and best times which in their Lordships Opinions were of much more weight sufficiently convincing but the House of Commons having a little before at an other Conference delivered it for a Maxim That the later Presidents were best and having accordingly insisted upon one single President of the same Parlialiament of 1640. to Oblidge the House of Lords to commit a person upon a general Impeachment of Treason without special Matter shewn and opposing that one President to what their Lordships alleadged to the contrary and made appear to have been the usage of all former times no Record being of any Man ever sent to Prison by the House of Peers without a particular Crime expressed in the Impeachment of some Act done by him before the Earl of Strafford which was the President stood upon This made the Lords heap up so many Examples of the Proceedings of their House in that Parliament of 1640. in the point of Judicature to use it as Argumentum ad heminem and what the House of Commons could no wayes except against themselves having declared it to be of greatest Authority Until Henry the Eights time the very House of Commons was to be beholding to the House of Lords for their Administration of Justice even concerning their Members as the only Judges and Conservators of their Liberties and Priviledges Themselves could not before that have punished any one that had never so much offended them So far were they from exercising a Power of Commitment or of inflicting any punishment for Crimes at large and against the Laws of the Land where neither the Offence nor the Offender had particular relation to their House as in these later times hath been often practised by them But as I say the first time that ever they punished any and it was for breach of Priviledge was in the Parliament 34 H. 8. in the Case of George Ferrers Burgess for Plimouth who was arrested and put in the Counter The House informed of it sent their Serjeant to demand their Member not so much as to summon Sheriff or Bayliff that made the Arrest or Party at whose suit it was made and less to bring any of them as Delinquents to the Bar as now a dayes nor could they obtain that But their Serjeant coming to the Counter found resistance the top of his Mace was broken off his Man knocked down and he glad to get off without the Prisoner So back he comes to the House yet sitting and makes his Complaint They presently all rise with their Speaker come up to the House of Lords and the Speaker makes the Complaint to Sir Thomas Audley Lord Chancellor sitting on the Wooll-sack The Lords judge the Contempt to be very great and refer the punishment of it to the Order of the House of Commons Then indeed they return to their House and send for the Sheriff of London the Clerks of the Counter all the Officers there that had a part in the fray with their Serjeant one White at whose Sute Ferrers was Arrested and the Bayliffs that did Arrest him all to appear personally before them at eight of the Clock next Morning and when they came they sent some of them to the Tower some to Newgate where they continued till they were delivered at the suite of the Lord Major We do not find that before this the House of Commons committed any body no not for the Breach of their Priviledges nor were themselves so much as Judges of the Elections of their Members but were fain to come up to the Lords and pray their aid to
it is but seemingly as will be shewed upon the Examination of the Presidents themselves Whereas multitudes were produced of the exercise of their Jurisdiction and some Where the parties had desired a try all at common Law and the Lords would not grant it as that of William Paynell and Margaret his Wife in the Placita Parliamentaria of the 30 of Ed. 1. p. 231. The Case was this Margaret had been formerly the Wife of John Cameys and he yet living bad left him as she alledged with his consent and lived with Paynell as his Wife and was married to him Cameys dying Paynell and she sue for the Thirds of the Mannor of Torpell which had been the Land of Cameys It was objected on the other side That she lived in Adultery with Paynell in Cameys life time and so had forfeited her Dower They upon that desire to be tryed by their Country if Adultery or no What say the House of Peers Do they send them into the Country as is desired No Videtur Curiae quod non est necesse contra tantas tamque manifestas Evidentias Praesumptiones Probationes c. ad aliquam Inquisitionem Patriae Capiendam procedere c. Et ideo consideratum est quod praedicti Willielmus Margareta nihil Capiant per Petitionem suam sed sint in Misericordia pro falso Clamore c. This shewes that the Lords some times would retain Causes though sometimes they did dismisse them not for want of Jurisdiction but as it seemed to them convenient and their Occasions would give leave as they had or had not leasure for it from the greater Affaires of the Kingdome or that some Circumstances in the merits of a Causemade it more or less worthy of their Consideration As if one of the parties was powerfull in his Country and suspected to have an Influence upon the Juries the Lords would then some times retain a business and determine it themselves As in 3 R. 2. N. 24. The Case of John Earl of Pembroâ—k and William le Zouch Complaining that they were sued for certain Lands in York-shire by Thomas the Sonne of Sir Robert Roos of Ingmanthorp and alledge That the said Thomas sought to come to a tryall in the Country which he had gained and corrupted And therefore pray for redress and a tryall by Parliament giving this reason for it Que Ils par tels Malveis Compassemens et Procuremens en pais ne soient desheritez That they may not lose their inheritance by such wicked contrivances and practises in the Country Do the Lords then suffer it to go on to tryall in the Country No They take the matter into their own hands appoint John Knevet and John Cavendish Chief Justice and John Belknap Chief Justice of the Common Pleas to examine it and make Report to them which they did And so likewise in the Case of Pontyngdon and Courtney 4 H. 4. N. 21. Sir Phillip Courtney a great man in the Country oppresses Pontyngdon dispossesses him of his Land by force he comes to the Lords praies Pur Dieu Et en oeuure de Charite d'ordeigner remedies en cell Cas For Gods sake and as a work of charity that they would give remedy in this case Setts forth in his Petition that he had before in a Parliament held at Winchester made his complaint at which time Sir Phillip laid the Bastardy of his Father as a Barr and that the Lords Answer then was That he should have right done him and committed the business to the Arch-Bishop of Canterbury to take care of it That before the Arch-Bishop Sir Phillip and he agreed to go to a tryall upon that Issue and that there should be a sufficient Jury of the principal Knights and Esquires of the Country But that Sir Phillip had named some of those principal men and withall poor men of less sufficiency to the intent that the great men making default the poor should stand and that these poor men durst not against Sir Phillip maintain the truth les queux poures hommes n'oisent envers le dit Sir Phillip la verite dire That thereupon he Petitioned again the Lords in the next Parliament sitting at Westminster and informed them of all these Particulars whereupon they Ordered a Writ to go to the Judges of Assize of that Country commanding them to admit none to be of the Jury but such as had 40 l a year Land and those to be chosen out of the whole Country notwithstanding any usage or Challenge to the Contrary But that now Sir Phillip finding that the charge of Bastardy would not hold contriving still the wrongful disinherison of the Petitioner had started a release unduely gotten from one Thomas Pontyngdon a Parson whose heirethe Petitioner is And the Petitioner is thereby like to be ruined si il neit vostre tres Hautissime et tres excellent secours et aide if the Lords would not afford him their most High and excellent succour and help This was the effect of the Petition The Lords upon this make an Order to direct the tryall the Point in Issue to be the Bastardy that the Release should be laid aside as null and void that if the Bastardy be proved Pontyngdon shall be for ever barred to sue hereafter and if not proved but that his Father was Mulier he should then recover the Land with Costs and damages And they further Order a Writ to the Sheriff to Impannell none of the Jury that had not 40 l per annum Land So then three several times in three several Parliaments did the Lords take Cognizance of this Cause being a Common Plea for a mans Free-hold and that Originally in the first Instance not upon an appeal or Writ of Error or any of those waies to which the House of Commons would now limit them They direct the tryall the Issue the Condition and Qualification of the Jury and the Judgment and if this be not taking Cognizance of a Cause I know not what is And well was it for that poor Gentleman That the Lords had that Jurisdiction that they could take Cognizance of his Cause to give him relief then As now it was well for Skinner That the Lords took Cognizance of his Otherwise this powerfull Company had trampled him in the dirt and ruined him as that violent man Sir Phillip Courtney for so he appears to have been by several Complaints against him in the Parliaments of those times had served Pontyngdon And well will it still be for many a poor man to have such an Asylum such a City of refuge to fly unto to save himself from the violence and Oppression of power and greatness And perhaps some of those who now endeavour to lay low the House of Peers who would make it to be of no signification to have no power no Influence upon the Kingdome be as salt that hath lost its Savor only Magni Nominis Umbra a Name of Peerage without ability to help themselves or
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
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
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