Chanceler e ceux Ke tuchent Justices v ley veynent a Justices e ceux Ke tuchent Juerie veynent a Justices de le Juerie Et si les besoings seent si grans v si de graces Ke le Chanceler e ces autres ne le pussent fere sans le Rey dunk Ils les porterunt par lur meins de meine devant le Roy pur saver ent sa volentè Ensique nulle Peticion ne veigne devant le Roy e son Conseil fo rs par les majns des avaunt ditz Chanceler e les autres Chef Ministres Ensike le Rey e sun Consail pussent Sanz charge de autre busoignes entendre a grosses busoignes de sun Reaume e de ses Foreines Terres Thus in English In regard the People who come to the Kings Parliament are oft delayed and disturbed to the great grievance of themselves and of the Court by the multitude of Petitions exhibited before the King of which most could be dispatched by the Chancellor and Justices It is provided That all Petitions that concerne the Seal shall come first to the Chancellor and those that concerne the Exchequer to the Exchequer and those that concerne the Justices or the Law shall come to the Justices and those that concerne the Jewes to the Justices appointed for the Jewes And if the businesses be so great or so of Grace as the Chancellor and the rest can not end them without the King then they shall with their own hands bring them before the King to know his pleasure therein So as no Petition shall come to the King and his Counsel but brought by the Chancellor and those Chiefe Ministers that so the King and his Counsel may without the trouble of other busines attend the great businesses of his Kingdome and of his forrein Dominions This is the Order in which two reasons are expressed for their not receiving particular Petitions one in the beginning the other in the end First the ease of the Petitioners and of the House it self which for their multitudes could not give every one his dispatch and secondly that freed of them it might attend the Publick business of the Kingdome Not for want of Jurisdiction And yet be all manner of businesses so put by No! Great ones and such as need grace and favor are still reserved But take it at the strongest admit they had put all out of their own power yet it will be granted they had power till they did in this manner divest themselves of it It appears they had by the Order it self which mentions such multitudes of Petitions I then aske if such resolution of the House at that time could be binding to perpetuity The Houses of Parliament we know are masters of their own Orders and themselves when they please alter the Orders they have made much less then be they binding to succeeding Parliaments And it is obvious to every man who will either look into the Records of Ancient Parliaments or will but recollect his Memory and call to mind what hath passed in our late Parliaments that in all times the House of Peers hath acted contrary to this Order Taking Cognizanceeven of smaller matters which the ordinary Courts of Justice do every day dispatch And no House of Peers did ever do it less then this which in truth hath not done it at all though it be now so quarrelled with for having relieved one poor man from the oppression of the mighty when no inferior Court could do it And this too the only Cause of this Nature that they have medled with during this whole Parliament which hath lasted so many years and hath had so many Sessions And a Cause particularly recommended unto them by the King who is the Fountaine of all Justice not one taken up by themselves which makes not their Case the worse as it may well be hoped But suppose there had been no Reservation at all in that Order of 8 E. 1. of any Cause or any business but that the King and Lords had at that time bound up themselves absolutely from medling with any of those Petitioners Cases and for the Present waved the exercise of their Jurisdiction in all such matters had this been a Renouncing of their Jurisdiction and quitting it for ever No Court but may upon some particular occasion suspende and wave it's Jurisdiction it doth not therefore follow that it must never make use of it again The Court of Chancery doth sometimes appoint a Tryall at Law of points in a Cause which it might have determined it self if it had pleased And at an other time it will determine things of the same nature The House of Peers may do the same and wave their Jurisdiction when they please It did it 13 R. 2. N. 10. in Changeours Case Adam Changeour So is his Name in the Record though the Exact Abridgement call him John petitions the King and Lords against Sir Robert Knolls Setts forth how owing 2000 l to Sir Robert and his Wife Constance he had let him have Lands to receive the Rent till he was Satisfied his debt That Sir Robert had received more then his money due yet kept the Land so prayes remedy The Answer is indorsed upon the Petition Let a Writ be directed to Sir Robert Knolls to appear in Parliament the Friday after Candlemas next to Answer the things contained in the Petition Upon hearing the business the Lords leave it to be tryed at the Common Law This seemes a stronger President for trying all at Law and not in Parliament then any which the Gentlemen of the House of Commons urged at the Conference For here was an absolute dismission of the Cause and not ad praesens only as was in their Presidents But I believe such wise and knowing men could not but see that this President would not so much have helpt one way as done prejudice to their Case an other way The Prejudice it would have done had been this that themselves by their own shewing had overthrown one of their maine Arguments which was That all Proceedings in cases of Freehold should be by the Kings Writ and that no Writ was ever made Returnble Coram Dominis Spiritualibus et Temporalibus Whereas here had been in their own President mention of a Writ returnable in Parliament which is Tantamount and signifies the same thing But I have in this Discourse given Examples of several others in the same kind where Writs are issued by Order of Parliament returnable in Parliament and many more there are if it were necessary and worth the trouble to set them down And then what had they gotten by telling us That the Lords once would not retaine a Cause which was tryable at Law and would for once wave their Jurisdiction in such Matters When it was shewed to them by multitudes of Presidents That the Lords had most frequently done otherwise at other times in Cases of the same Nature And Presidents in the Affirmative are those that prove
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
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-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
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
THE GRAND QUESTION Concerning the IVDICATVRE Of the HOVSE of PEERS Stated and Argued And the Case of THOMAS SKINNER Merchant complaining of the East India Company with the proceedings thereupon which gave occasion to that Question faithfully related By a true Well-wisher to the Peace and good Government of the Kingdom and to the Dignity and Authority of Parliaments by Denril Lord Hollis who dyed Feb 17th 1 0 1679 80 Judicium Dominorum Spiritualium TemporaliuÌ„ est SecunduÌ„Vsum Consuetudinem Parlamenti Vsus Consuetudo Parlamenti est Lex Parlamenti Lex Parlamenti est Lex Angliae Lex Angliae est Lex Terrae Lex Terrae est Secundum Magnam Chartam Ergo Judicium Dominorum Spiritualium Temporalium est secundum Magnam Chartam London Printed for Richard Chiswel at the two Angels and Crown in Little Brittain 1669. THE JURISDIC-TION OF THE House of Peers ASSERTED THe Power of the House of Peers in Point of their Judicature having been lately called in question upon occasion of a â—udgement given by them in a particuâ—ar Case which they conceived not â—…yable elsewhere in the Ordinary Course of Law It will not be amiss â—or the removing of all prejudice out of â—…ens minds to make a clear Narrative â—f the matter of Fact with some Observations upon it and the Additions of â—ome Presidents and Arguments Such 〈◊〉 may serve to evince and set forth the ancient way of Proceeding in that House as to their Judicial Capacity even the same which they have continued to practice in succeeding times and so leave it to the Judgement and conscience of every unbiassed indifferent man to satisfie himself If now there hath been any Innovation any new Incrochment of Power any Variation from the constant usage and Priviledge of the Peerage in all times Ancient and Moderne The business was sincerely thus Soon after his Majesties happy Restauration one Thomas Skinner preferred a Petition to him in Council purporting great Oppressions and Spoils Sustained by him in the Indies from the East-India Company robbing him of a ship and goods of a great value dispossessing him of a Plantation he had there a dwelling House ware-House at Iamby and an Iland called Barella which he had bought of that King assaulting his person to the danger of his life and several other Injuries done him For which he prayed the Kings Justice to appoint a Court Constable and Marshall to Heare and Determine those matters they not being otherwise Determinable by the ordinary Course of Law or to put it into any other way for Just Relief After some years Attendance and Sollicitation and several Petitions of this poor mans the King at last referrs it to certain Lords viz. The Lord Arch-Bishop of Canterbury the Lord Chancellor the Lord Privy Seal and the Lord Ashley to call all Parties before them and compose the matter if they could The Order of Reference runs thus Whereas upon the Petition of Thomas Skinner Merchant Setting forth his Sufferings under the barbarous oppressions of the East-India Company His Majesty was Gratiously pleased by Order of the 27. of August last to deferre theclearing of the matter for erecting a Court to determine affaires of this nature till the second meeting of this Board at White-Hall and in regard the said Company have Slighted the Orders of this Board and not complyed with any References or Mediations designing to we are out the Petitioners Life in tedious Attendances He did by his Petition this day read at the Board humbly pray that the said Court may be now Erected to relieve the Petitioner according to Justice put a Period to his grievances Whereupon his Majestie present in Council did Order That his Grace the Lord Arch-Bishop of Canterbury the Lord Chancellor Lord Privy Seal and the Lord Ashley do send for the Governor and some of the Members of the East-India Company to treat with them and to induce them to give the said Mr. Skinner such reasonable satisfaction as may in some measure be answerable to the loss and damage he hath suffered under them Signed John Nicholas These Lords Referrees met took much pains in it spent several dayes Ordered Mr. Ayloff of Counsel with Skinner to give them under his Hand a true State of the business whose report I will here set down in Terminis The Case of Thomas Skinner Merchant and his demands against the East-India Company for damages done him in the year 1659. in India IN the year 1657. was a general Liberty of Trade into the East Indies Then Thomas Skinner furnished and set forth his Ship called the Thomas from London on a trading voyage to the Indies and arrived there in 1658. The Compan by their Letters the 7o. Maij 1658 which arrived in India in November following commanded their Agents to Seize all ships and goods of English trading there and dispose half to the Common-wealth and half to the Company The Agents of Bantam direct those of Iamby to seize the Estate of Frederick Skinner in the hands of Thomas saying Thomas had nothing there of his own and that Thomas Leaver chiefe of Jamby should secure in his hands what Estate he had of Fredericks for a Debt suggested owing by him to the Company upon which pretences they seized Thomas Skinners Ship and Goods broke open his Ware-House assaulted him in his House and dispossest him of his I stand Barella for which Injuries he hopes satisfaction and therefore in particular demands For 128 Peculls of Pepper 24 Peculls of Nutmegs and for Beef strong Waters and other Provisions and Merchandizes taken out of his Ship by the Agents of Jamby and the Crew of the Ship Dragon then in the Companies service Ryals  3355 The Company agree the Value 3160 Ryalls brought to their Account but it being proved That the rest was laden on Board Skinners Ship this imbezlement or subduction by the Agents is just to lie upon the Company  Ryals For his Ship and Furniture sworn by two Witnesses to be worth when set out five or six and twenty thousand pounds sterling and that she was worth as much or more in India when taken yet abate a fist for ware and tare rests 8000. For eleven small Copper Ordnances and their Field Carriages 350 Ryals and two Quoyles of Ropes 80 Ryals in all 0430.  Ryalls For 10 Barrels of English Powder at 25 Ryals per Barrel and Sword Blades Spectacles Prospective Glasses Boxes Knives Cisors and other small Merchandizes Iron Works Nails Pistols Pictures Looking Glasses with Ebony Frames on board Ship-planks and other Wood on shore and in the Ware-House valued by Marmaduke Grimston and Peter de Barrier Purser of the Ship at 1730. For Moneys owing by Thomas Leaver to Frederick Skinner assigned to Thomas and accepted by Leaver with promise to pay but detained by Order of the Company who have in their hands a greater Summe of Leavers to indemnifie them against this Demand 1521. For his Charges at
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
and Company and of Maurice Tompson and Sir Andrew Riccard seeing the Petitioners hopeful designe in his Plantation and way of trade with his Ship did seize for and on the behalf of the said Governour and Company his said Ship goods houses Istands and 1521 Dollars of the Petitioners in the hands of Thomas Leaver the Companies Chief Agent at Jamby which hath damaged him 17172 l Sterling besides the disappointment of his trade disseizin of his said Island loss of above six years time with attendance and vast charges here in endeavors for a just satisfaction c. being much more valuable then all the other damages And the said Agents used many violences upon his person in the said Indies notwithstanding that the Petitioner proffered Bail and good Security there to answer all their pretences which inhumane and unreasonable dealing forced the Petitioner through infinite hazards and expence to come most over Land for England to seek redress That in the year 1661 and continually since he hath humbly besought his Majesty for Justice against the said Governour and Company and persons aforesaid and though his Majesty hath been graciously pleased to convene the said Company and Persons and to hear the said Matters and also to referre it divers times to several Lords of his Majesties most Honourable Privy Councel to hear them and mediate an End yet they could not be reduced to Reason nor Justice albeit the Petitioners Wrongs and Damages were made to appear as well by their own acknowledgement as other evidence produced before the Lords Referrees but endeavoured by the strength of their Joynt-Purse to bear down the Petitioners Relief though never so just by wearying him from further Prosecution That the Petitioners whole Case not being remediable by the Courts below he is constrained humbly to address himself to your Lordships his Majesties great Councel and Supreme Judicature whom the Petitioner most humbly petitioned the last Sessions and your Lordships were pleased to order their Attendance but by their Dilatory Pleas and several non-attendances upon slight excuses at the day appointed by your Lordships they frustrated the Petitioner of obtaining your Lordships Justice that Session Wherefore he most humbly prayes That your Lordships will be pleased to cause the said Governour and Company and persons aforesaid to answer the premisses before your Lordships by a short day and that he may receive from your Lordships such Relief as shall be consistent with Justice and Equity And he shall pray c. Signed Thomas Skinner The Lords upon this order the Company to put in their Answer in Writing upon Wednesday the 6 th of November They bring in a Plea as before First by way of Protestation That all the Injuries supposed to be commited by them and their Factors are untrue Then plead as formerly That the Petition is in the Nature of an Original Complaint not brought by way of appeal c. as in their Plea of the last Session but add And therefore these Respondents do humbly demand the Judgement of this honourable Court whither it will please to take any other or further Cognizance of the same the rather because the matters of Complaint in the Petition are such for which remedy is ordinarily given in the Courts of Westminster-Hall wherein these Respondents have Right to be tried and ought not to be brought hither per saltum nor drawn ad aliud examen and so pray to be dismissed The Lords having received this Plea to shew the clearness of their Intentions and their tenderness of doing any thing which might but carry a Semblance That they desired to engross to themselves the judging of particular Causes when determinable elsewhere and nothing extraordinary in the Case to induce their Lordships to take Cognizance of the Matter which apparently was in this Case of Skinners as hath been said before would have the Opinion of all the Judges before they proceeded any further And therefore made an Order Monday the 2 d. of December That it be referred to all the Judges to consider of Skinners Petition and to Report to the House upon the Wednesday following whether the Petitioner were relievable upon the matters therein mentioned in Law or Equity and if so in what manner upon the several parts of the Complaints of the said Petition The day appointed the Judges came and the Lord Chief Justice of the Kings Bench reported That all the Judges had considered of the Matter referred to them and having met and considered thereof were of Opinion That the Matters touching the taking away of the Petitioners Ship and Goods and assaulting of his Person notwithstanding the same were done beyond the Seas might be determined in his Majesties Ordinary Courts at Westminster And as to the dispossessing him of his House and Island That be was not relievable in any ordinary Court of Law Here then clearly by the Judges own Confession part of the Case was not within the Power of Westminster Hall and under favour of better Judgements I think it will be but a venial Sin if notwithstanding this Declaration of our Sages in the Law the Doubt do still remain with us if some of the other points also as that of the taking of his Ship a Robbery committed super altum mare be punishable by the Law of Westminster Hall Nay may not one be bold to affirm That it is not And may it not be doubted further if any part of Skinners Case be tryable there and if their Fiction in Law will reach any part of it being all for Injuries and Violence against his Person and Estate in India We know that some Judges and Lawyers make it to extend to Contracts and Bonds made beyond the Sea which they ground upon a Case in the Year Book of 48 E. 3. fol. 2. where Sir Ralph Pole brings his Action against Sir Richard Tochester upon an Obligation bearing date at Harfleet in Kent Lou de rei veritate I l fust fait en Normandie the Book saith and his Action was held good And Brook who makes it to be at Roan not Harfleet gives the reason in his Abridgement Faits 98. le lieu n'est traversable the place is not traversable which is to be understood when it is expressed in the Bond for a man cannot traverse the place against his own Act. But the Law was ever understood to be otherwise till then that the Judges would ampliare Jurisdictionem And to shew what the Law was before E. 3. it was adjudged Michaelmas 2 E. 2. That no Action would lie for a Bond made at Barwick which did not then belong to England ou cest Court nau ' conisans where the Court hath not cognisance saith Fitzherbert Obligation 15. And so Perkins Faites 121. But both before and since the Courts of Law were so far from punishing Injuries and Trespasses done beyond Sea That even Treason was not tryable till the Statute of 26 H. 8. cap. 13. which saith That if any of the Kings
House your Petitioners do therefore most humbly pray That your Honours will be pleased to take the Premisses into your grave Considerations and to interpose with their Lordships for your Petitioners Relief therein in such way and manner as to your great Wisdoms shall seem meet And your Petitioner as in duty bound shall pray c. Signed by the Order and in the Name of the said Governour and Company Robert Blackborne Secr. Copies of this flew about were in every mans Pocket and in every mans mouth That the Lords were even forced to take notice of it yet scarce could believe the House of Commons would receive such a Petition against them so scandalous and so false nor did they in the whole debate so much as mention the House of Commons but looked upon it as a thing done without doors thrown abroad only to blast and asperse the House of Lords and to bring them into the ill opinion and dis-esteem of the people which after a serious consideration and debate their Lordships voted To be a scandalous Libel against the House of Peers And certainly so it was both in Matter and Manner and had the Matter been true yet the Manner was scandalous For though all had been true which was suggested if the House of Lords had committed an Error had done some thing grievous to the Petitioners yet was it most unfit for private men to censure their Proceedings declare them to be unusual and extraordinary to be against the Laws and Statutes of the Nation and Costome of Parliament grievous to the Petitioners at present and of ill consequence hereafter to all the Commons of England Can the tongue of man utter more reproachful and stabbing words against any man or society of men If this were true do they deserve to live who are guilty of such things to continue so much as Members of any State or Common-wealth much less to have Power and Jurisdiction in it Certainly to revile in this manner and throw dirt upon the Highest Judicatory of the Kingdome was a most transcendent Presumption and of a most dangerous Consequence to the whole Nation even to those Commons of England whom these Petitioners pretend for so much making themselves as it were their Patrons and Protectors Tribunes of the people and withall endeavouring to bring an Odium upon the whole Peerage What is this but sowing sedition between the two Houses of Parliament and between the Peers and the Commons of England And what can it tend to but to the very dissolution of the Frame of Government The Scripture saith Thou shalt not speak evil of the Rulers of thy People and Elihu in Job moves this question Is it fit to say to a King Thou art wicked and to Princes Ye are ungodly Yet these Rabshakehs dare heap up Reproaches against the Lords of Parliament and bring railing Accusations against the Highest Order of Magistracy under the King in the Kingdom And how little Cause was given them for this the preceding Narrative of the proceedings of the Lords is I think an evident demonstration Their Lordships had proceeded with all the tenderness imaginable nothing of heat nothing of Precipitation had appeared in the whole Transaction They were not come to a full Conclusion and Determination of the business which these Merchants had no reason to suspect that it would be severe upon them And they might at least have staid till it had come what ever it had been and not have prejudged a Court before it had declared it self what Judgment it would give All it had then done was but what the East-India Company it self had by their own offer of Reparation for the wrong done acknowledged to be Just For the Lords had only declared That Skinner was fit to be relieved But what relief how much and in what sort the Quid and the Quomodo they had not determined that was under the Consideration of a Committee They themselves in their Answer to the Lords Referrees appointed by His Majesty in Counsel had offered to pay unto Skinner for Nutmegs White Pepper and some other things which had been unjustly taken from him by their Factors and had been brought to their account 3160 Dollars And 1521 Dollars more they offered for so many taken from him in Specie And by this they confess they had done him wrong and were willing to give him some Reparation So without condemning themselves they can not say the Lords had as yet done amiss and notwithstanding all this moderation and Circumspection that opprobrious railing Petition was preferred against them and which besides was full of untruths For the main matter in it and which in truth had carried a shew of Injustice had it been true is absolutely false And that is that the Lords denied them a Commission or time to send for Witnesses inhabiting upon the place without whose testimony it was impossible for them to make their defence First it is not true that the Lords denied them a Commission or time to send for Witnesses for they never insisted upon it which must have brought on a Resolution of the house and have been entred in the Clerks Book which was not Some such thing was once said by some of the Councel at Barr but themselves went off it knowing it would have grosly manifested their intent to delay longer a Poor man who had already spent seven years in the prosecution of that suit And as untrue is it that they could not else make their defence for multitudes of Witnesses were produced by them and all fully heard with Patience and enough acknowledged even by their own Witnesses and more by their own offer formerly mentioned of giving Skinner so many thousand Dollars Reparation which they had then declared which was only That Skinner should be relieved A second untruth is That they say all the matters complained of were clearly determinable in the ordinary Courts of Justice excepting what concernes the Iland whereas it appears there was likewise a dwelling house at Jamby and a Ware-house by the River-side of which they dispossessed him which were not so determinable even by the report of the Judges in their Opinion but in truth one may say no part of the Complaint was so determinable they say untruely then in saying there was only the Iland that he could not be relieved in and as untruely do they vouch the Opinion of the Judges for it who expresly mention the House as well as the Iland A third untruth is to say the Iland was parcell of the Dominions of a Foreigne Prince and the Right to it only determinable by the Laws of that Prince Whereas that Prince had made an absolute bargain and sale and a Totall Alienation of it from his Dominion and so had put it out of the Protection of his Laws A fourth and which they had inserted to be a Baite to draw on the House of Commons to espouse their Quarrel is that they suggest the complaint to be concerning Commoners
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
a desire to relieve them But secondly we must distinguish between a Fact not being a Crime in the eye of the Law which is neither Malum in se nor Malum prohibitum and when the Fact it self being odious and punishable by all Laws of God and Man only a Circumstance as the Place where it was Committe dputs it out of the Power of the ordinary Courts of Justice to take Cognizance of it which are kept to formes and may not trangresse them In the first Case the House of Lords can not punish that for a Crime which the Law doth not make a a Crime but in the second Case God forbid there should be such a failer of Justice in a Kingdome that fellow subjects should robb and worry and destroy one an other though in Forrein parts and there should be no punishment for the wrong doer nor Relief for the party wronged when they come home For then the King might be deprived of many a good subject the Land loose many of her people Trading receive much prejudice and so King and Kingdome suffer great loss and all without remedy But then say the House of Commons Where the Law hath provided and there is an ordinary remedy an extraordinary ought not to be tryed to this the Lords Answer that their House is not an extraordinary remedy but the ordinary remedy in extraordinary Cases and this of Skinners was so both in point of difficulty and point of Compassion And to what is said That it is the Interest of all men in England to be tryed by Juries and there is remedy against willful Juries by Attaint but here is no remedy nor no Appeal It is Answered That the Court of Chancery disposeth of mens Estates without a Jury Every Court of Justice Every Judge in his Circuit sets Fines on mens heads upon several occasions without a Jury Many are tryed for their lives and their Liberties which is more then Estate in the House of Peers upon an impeachment of the House of Commons who are not a Jury nor are sworn therefore that Assertion holds not That all men in all cases are tryed by Juries And for matters of Appeal there doth lye one to the next Parliament or the next Session But it will be said That is to the same Persons And what hopes of any remedy For they wil make good their own Act To this is Answered It is what the Law of the Land hath established We must not be wiser then the Law It is what our Ancestors thought sufficient what hath been the practice of all time And if we leave Posterity in as good a Condition as our Ancestors left us they will have no Cause to Complain Then we must presume that Courts of Justice will do Justice and will do Right that upon better reason shewed upon the Appeal they will alter their minds and give an other Judgement They have done so heretofore How many Judgements of Parliament have been reversed by succeeding Parliaments And where there is Cause for it we must hope they will do so again Then where as it is said That the greatness of the Charge and the Inconveniencies of attending Causes in the Lords House is an Argument against their Judicature They Answer That it is not the House of Lords that appoints such great Fees to Counsel it being left to their Consciences that take them and to the will and discretion of their Clients who give them and who without an Act of Parliament to restraine it may give what they will or rather what they must However The Lords say that the charge in Chancery is greater there having been some times forty fifty Orders made in one Cause and the delay much greater so as some Causes have lasted there very many years And even at the Common Law how many Verdicts have been given in one Cause contrary Verdicts one for the Plaintiff an other for the Defendant Contrary Rules of Court the Judges give a Rule one day and three daies after give an other clean contrary As an Instance of it can be given but of last Trinity Term in the Kings Bench. These are Inconveniences that lye not in the House of Peers But admit there were Inconveniences Many Laws are found inconvenient which yet are put in execution and all obedience given to them whilest they stand unrepealed And the Question is not now of Convenient or Inconvenient but matter of Right Is it the Right of the House of Peers hath it still been the Custome and Usage of Parliaments and consequently the Law of Parliament that they should exercise such a Power of Judicature If it be so as it is and will be sufficiently proved then the point of Conveniency or Inconveniency is out of doors Well may it be a motive to alter it by the Law But we will play with them at their own Weapon and joyn Issue upon that point that the Inconveniency is but imaginary and so farr from an Inconvenience that it is the great advantage of the subject that it should be so As well to give relief in Cases otherwise unrelievable as to assist and help on the administration of Justice when sometimes the greatness and power of some persons would else bear down or much obstruct and hinder the Proceedings of Inferior Courts An objection also was raised How shall the Lords Judgements be executed after the Rising of the Parliament For so the subject may be deceived And when he thinks that with much Charge he hath made an end of his business he is never the nearer And it is Answered that the House of Peers is not as the House of Commons whose Orders are only of force whilest they are sitting they have power sufficient to require Obedience to their Judgements Nor hath it been knowen that ever any Judgement of the House of Peers was not submitted unto and obeyed till now in this Case of Skinners that the East-India Company stands out in defiance and refuseth all Obedience to it In 15 R. 2. N. 17. in the Case of the Abbot of St Oseches complaining against John Rokell for divers Embraceries and for not obeying an Order of the Duke of Lancasters made therein the Lords Confirme that Order and charge the Lord Chancellor to see Rokell perform it Why may not the Lords do the same still if they doubt of Obedience to their Orders But there was never question made of it before And there are many Presidents of Orders given to persons to act some thing in the Intervalls of Parliaments to give an account of it to the Lords at the next ensueing Parliament which shewes that their Authority stil continues to empower those persons to act and to execute their Orders even when the Parliament is risen 15 E. 3. N. 48. The Bishops of Duresme and Salisbury the Earl of Northamton Warwick Arundell and Salisbury are appointed to take the Answer of the Archbishop of Canterbury and to report it to the next Parliament And 51 E.
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
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
which they look'd upon as deeply trenching upon the Priviledges of their House all Judgments properly and solely belonging to them Thereupon they sent a Message to the House of Commons and desired a Conference At which Conference the Commons confessed That out of their Zeal they had censured Flood But they left him now to their Lordships and hoped their Lordships would censure him In order to which they sent up a Trunk of Writings concerning his Case Then the Lords proceeded to the hearing of it examined several Witnesses and heard all Flood could say for himself which done they adjudged him Not to bear longer the Arms of a Gentleman To ride with his face to the Horse tayl to stand upon the Pillory with his Ears nailed to be whipped at a Carts tayl to be fined Five thousand pounds and to be imprisoned in Newgate during life 21. Jac. Thomas Morley was convented before the Lords for delivering a Scandalous Petition to the House of Commons as himself affirmed against the Lord-Keeper Coventry Upon examination it appeared that it had not been presented to the House of Commons only to their Committee of Grievances that he had published very many Copies of it even since his being convented before their Lordships They adjudge him to be imprisoned in the Fleet to pay 1000 l Fine to stand with his neck in the Pillory to make his Submission and Acknowledgment at the Barr. 22 Jac. Mary Brocas petitioned the Lords to be relieved for a Debt of 1000 l due unto her by Bond from the Muscovia Company Upon hearing both sides their Lordships order the Company to pay the Debt with 5 l per cent Interest out of the Leviations which the said Company had made among themselves for the payment of their Debts The same Parliament May 28. Thomas Pynckney petitions the House in the behalf of himself and other Creditors of Sir John Kennedy to be relieved for Debts owing to them from Sir John by the sale of Barn-Elms Lands in the possession of his Heir John Kennedy The Lords upon examination of the business find cause and so they order it That Barn Elms should be sold to the best value and the Profits to be sequestred in the mean time into indifferent hands And that a Recognizance of 2000 l in which Pinckney stood bound in Chancery should be withdrawn and cancelled The same Parliament again Grizell Rogers Widow petitions the Lords for the setling her Title to certain Lands in Heygrove in the County of Somerset and for quieting and ending divers Suits and Differences between her and Sir Arthur Ingram Sir William Whitmore c. They order her Satisfaction out of particular Lands And all Suits to cease between them And appointed Releases of all differences on both sides to be drawn and sealed 4. Car. 31. Jan. The Lords Committees for Petitions make report to the House of a Petition of Benjamin Crokey against John Smith in behalf of a Grammar-School at Wotton-Underedge in the County of Glocester which School was endowed with great Possessions by the Widow of the Lord Berkly in Richard the 2 ds time which were now much abated and brought to an undervalue by the cunning practices of the said Smith Upon which the Lords awarded a Commission to issue out of the Chancery to survey all the said Lands And ordered also a special Habeas Corpus to be directed to the Warden of the Fleet where Crokey was a Prisoner to bring the Body of the said Crokey before the Lord-Keeper to the intent he might attend the said Commission And ordered further That if Crokey did make it appear the value of the Lands to be so as be said and that to be approved by the Lords Committees for Petitions then Smith to repay to the said Crokey such Charges as he shall disburse in the Prosecution In the Parliament of 1640 Decemb. 16. Upon report from the Lords Committees for Petitions That Mistris James complained against Sir Edmond Sawyer for sheltring himself under a Royal Protection which he had procured by which means she could not sue him upon a Bond of 500 l for so much Money borrowed of her and two years Interest and so was debarred from helping her self by any Legal course The Lords ordered that the said Mris James should proceed against the said Sir Edmond Sawyer for the recovering of her Debt in any Court where she thought best notwithstanding his Protection December 21. The Lords Committees report a Petition of Katherine Hadley complaining that she had been kept a long time a Prisoner in the Common-Gaol in the Old Bridewell without any cause shewn the Lords ordered her Release The 22th of Decemb. Upon a Report from the Lords Committees of Sir Robert Howard's Case complaining that he had been committed Close-Prisoner to the Fleet by the High Commission Court and kept there three months till he was fain for his enlargement to enter into several Bonds with Sureties in the sum of 3500 l For which he desired Reparations and his Bonds to be cancelled The parties interessed were summoned and heard And after due consideration the Lords ordered a thousand pound damages to Sir Robert Howard of which 500 l to be paid by the Archbishop of Canterbury 250 l by Sir Hen. Martin and 250 l by Sir John Lambe the Bonds to be forthwith cancelled and delivered to Sir Robert Howard The 23d of Decemb. They reported the Case of William Dudley that he having arrested the Lord Wentworth son to the Earl of Cleveland for a Debt of 400 l entred a Caution in Mr. Justice Bartley's Chamber for good Bayl to be taken yet Justice Bartley had released the said Lo. Wentworth upon such Bayl as the said Dudley was utterly disabled to recover his debt Justice Bartley being called made no good Answer thereunto The Lords thereupon order that the said Justice Bertley should forthwith assure unto the said Dudley his House and Land near Barnet for securing the said Debt with Interest and Damages The same day they report likewise the Case of Mris Mary Stanhope Widow Daughter-in-law to the Earl of Chesterfield complaining that the said Earle refused to assure unto her 40 l per Annum during her Widowhood according to a former Agreement made between them which appeared to be true by a Letter produced under the Earl's hand And his counsel being heard and no good cause shewn why the Petitioner should not be relieved The Lords ordered the Earl of Chesterfield forthwith to assure to the said Mris Mary Stanhope his Daughter-in-law 40 l per Annum during her Widdowhood and to pay unto her such money as was in arrear of the 40 l per Annum due to her for the space of two years The 30th of December the Lords Committees for examining Abuses in Courts of Justice report the Complainâ—… of John Turner a Prisoner in the Gate-house committed thither by the High-Commission Court where he had lain fourteen years for refusing to take the Oath Ex
Officio The Lords ordered him to be forthwith released The 21th of January the Committee for Petitions report the Complaint of William Waters and Thomas Waters How they had suffered much by an untrue and false Certificate made by Dr. Clerk and Dr. Sibthorp unto the Counsel-Table for their refusing to pay Ship-money whereby they were forced to pay the sum of 34 l for Fees Upon which Dr. Clerk and Dr. Sibthorp were heard at large The Lords ordered them to pay back the 34 l to the Complainants which they had paid for Fees and 100 l Damages And to be turned out of the Commission of the Peace The 22th of January the Committee for Courts of Justice reported the Complaint of the Lady Frances Weld Widdown against the Archbishop of Canterbury and Mr. Dell suggesting That she had been much prejudiced by them in the recovering of a Debt of 1300 l due to her upon Bond from Mr. Child Upon hearing of all Parties the Lords find the Archbp. and Mr. Dell free from blame and order them to be discharged concerning that business The 5th of February the Committee reports the Complaint of Jeremy Powel That the Bishop of Hereford had admitted a Clerk to the Vicarage of Burknill in Shropshire though the said Powel in the Right of himself and of Mary his Wife had caused a Ne Admittas to be directed to the Bishop The Lords upon bearing the business found that the Bishop had done contrary to Law and thereupon ordered him to pay unto Powel by way of Damages the sum of 30 l And the said Powel as Patron to be left in the same condition for tryal of his Right as he was before the Bishop had put a stop to his business The 9th of Febr. the Committee for Courts of Justice reports the Case of Nicholas Bloxam That Andrew Sandeland Clerk had procured a Sentence against him in the High-Commission Court by vertue whereof the said Sandeland had violently gained from him the possession of the Rectory of Great Waldingfield in the County of Suffolk The Lords judging this proceeding of the High-Commission to be most injurious and contrary to Law ordered That the Cause should be left to a tryal at Law at the next Assizes for that County That Sandeland should appear gratis and plead Not guilty that so the Cause might come to a final Determination that Assizes The same day the same Committee report That John Radway William Newark and Walter Cootes were presented Ex officio mero in the Ecclesiastical Court of Glocester and afterwards Excommunicated for going to Church out of their own Parish and upon pretence of a Significavit which was imperfect were arrested and cast into Prison where they continued Eleven dayes whereas there was no Writ justly taken out The Lords Ordered that Dr. Baber Chancellor of Glocester should pay to those three persons 40 l for Damages and the Undersheriffs Deputy Richard Byford 20. l upon the account of the Arrest The 23d of Febr. the same Committee report That Abraham Hill a poor aged man was committed to Prison in the year 1636 by Robert Buxton then Maior of Colchester by verbal command onely without any Warrant or Cause shewed and continued a Prisoner sixteen weeks to his utter undoing The Lords Ordered that the said Buxton should pay unto him 16 l by way of damages The 5th of March the Committee for Petitions inform the House that Complaint had been made before them That Nicholas Haws Gent. an antient man had not yet sued out his Livery in the Court of wards the Lords order him to do it without delay The 11th of March the Committee for Petitions gives account to the House that according to their Lordships direction there had been a Tryal at the last Assizes for Suffolk between Bloxam and Sandeland and that the Verdict had passed for Bloxam whereupon the Lords Order That Bloxam should discharge the Cure as Lawful Incumbent And that Sandeland should deliver unto him the quiet Possession of it It is worthy Observation That the Lords after they had referred the Decision of the Title for Matter of Fact as to the forcible Entry to the Common Law remained still Judges of the Cause and their Judgement setled the Possession The second of April 1641. The Committee Reports That Lambert Osbolstone Clerk had complained of a Sentence in the Star-Chamber by which he was degraded and deprived of all his Spiritual Livings and Preferments being a Prebend of Westminster and Parson of Whethamsted Fined in 5000 l to the King and adjudged to pay the like Sum for dammages to the Arch bishop of Canterbury and to be Imprisoned The Lords Order That be shall be freed and discharged of his Fine Dammages and Imprisonment and be restored to his Prebendary and Parsonage The sixth of April 41. The Committee Reports That the Lady Dyer had made her Complaint That primo Caroli she had lent Sir Richard Tichburn 400 l upon Bond and sued it to a Judgement but Sir Robert Pye Mr. Button and others had extended all the Lands lyable to that Judgement at a far undervalue to deprive her of all the benefit of it The Lords Order That Counsel of both sides should agree to draw up Assurances for setling the payment of all the Parties upon the Judgement and Extent to be all Signed and Sealed by them and that the Lady Dyer should be first satisfied and enjoy the Lands till then One thing by the way is to be noted That Sir Robert Pye was then a Member of the House of Commons The twelfth of April 41. The Committee Reports a Complaint of Dr. Walker That Sir John Lamb had unjustly taken from him his Offices of Commissary of Leicester and of Official to the Archdeaconry there which he injoyed by Patent for life That now Sir John Lamb took the Profits of them to himself And had forced him by many Menaces and Oppressions to release all Suits and Actions to his utter ruine and undoing and to his Loss and Dammage of above 1500 l The Lords Order That Sir John Lamb should pay unto the said Dr. Walker by way of Damages the sum of 1500 l to be levied upon his Lands and Chattels should be brought to the Bar as a Delinquent and there receive a Reprebension The twelfth of June 41. The Committee Reports a Complaint of Edward Bagshaw his Brother Henry and Sisters Mary and Margaret against their Brother Thomas concerning Portions and Annuities given them by their Fathers Will That all parties have been heard and their Witnesses Upon hearing the State of the Matter The Lords Order Thomas to put in Security within four dayes for the payment of the Portions according to the Will And to give security by Land for the paying of an Annuity of 20 l per annum to Edward for term of his life That then the said Edward shall release by a Fine to the said Thomas all his Estate Right Title and Interest in the Lands and Goods of
redress what was amiss and punish those that had offended All the Presidents shew it so to have been and not one no not one to the contrary 5. H. 4. n. 74. The Commons Petition That all such Persons as shall Arrest any Knight or Burgess of the Commons or any of their Servants and know them so to be do Fine at the Kings Will and render treble Damages to the Party grieved The Answer is There is sufficient remedy for the Cause Which remedy it seems was That the King and Lords would set them at Liberty which was as they conceived sufficient For 8. H. 6. n. 57. Among the Petitions of the Commons one is That William Lake Servant to William Mildred Burges for London was Arrested and carried to the Fleet upon an Execution and they pray he may be delivered according to the Priviledge of their House It is granted but withal Authority is given to the Chancellor to commissionate Persons to apprehend him again after the Parliament 39. H. 6. n. 9. The Commons complain by Petition to the King and Lords That Walter Clerck one of their Members Burgess for Chippenham in Wilts had been Outlawed and put in Prison and pray That by the Assent of the King and Lords he may be released Which was granted and their Member set at Liberty 14. E. 4. n. 55. The Commons among their Petitions bring up one of a Member of theirs William Hide Burgess likewise for Chippenham being taken in Exeoution for Debt and a Prisoner in the Kings Bench praying he may be delivered by a Writ of Priviledge out of the Chancery the which is granted with this saving That bis Creditors may renue their Execution after the Parliament 17. E. 4. n. 36. At the Petition also of the Commons the King with the Assent of the Lords Spiritual and Temporal grants That John at Will Burgess for Exceter condemned in the Exchequer during the Parliament upon eight several Informations at the Sute of John Taylor of the same Town shall have as many Supersedeas therefore as he will until his coming home after the Parliament One memorable Case of this Nature must not be omitted which hapned 31. H. 6. n. 25 26. c. Thomas Thorp Chief Baron was Speaker of the House of Commons and in an Interval of Parliament the Parliament being upon a Prorogation he had been Arrested and carried to Prison at the Duke of York ' s Sute who had got a Judgement against him in the Exchequer upon an Action of Trespass for carrying away the Dukes Goods from Durham-House The Parliament meeting the House of Commons send up some of their Members to make Complaint to the King and Lords That their Speaker was a Prisoner and desire his Release The Duke of York gives the Lords an account of the business They ask the Judges Opinion in the Point The Judges Answer was in these words It hath not been used before time nor becomes it us to determine matters concerning the High Court of Parliament which is so high and mighty in its Nature that it is Judge of the Law and makes that to be Law which is not Law and that to be no Law which is And the Determination of its Priviledges belongs to the Lords in Parliament and not to Justices But to declare the Use in Lower Courts they said That as Writs of Supersedens of Priviledge of Parliament were brought unto them concerning any particular Member of Parliament who had been Arrested so it were not for Treason Felony Surety of the Peace or for a Condemnation before Parliament they did alwayes release him that be might freely attend the Parliament After which Answer made It was by the Lords Spiritual and Temporal agreed assented and concluded That the said Thorp should remain in Prison notwithstanding his being Speaker of the House of Commons or any other Priviledge of Parliament And they Ordered the same to be declared unto them that were come from the Commons by Walter Moyle a Serjeant at Law because it was Matter of Law but in the presence of the Bishop of Ely and many other Lords And then the Bishop of Ely was to charge them in the Kings Name to chuse an other Speaker This was accordingly performed And the House of Commons did chuse an other Speaker Sir Thomas Charleton in the place of Thomas Thorp and sent some Members to acquaint the Lords with it and the Lord Chancellor answered The King likes him well It is to be noted That the King lay then sick at Windsor and yet all is done in the Kings Name as if he had been present These Presidents shew That the House of Commons did not in those times exercise any Jurisdiction nor themselves lay any punishment upon those that broke their Priviledges and that the Sheriffs and Bayliffs of London in that Parliament of 34. H. 8. were the first who felt any effects of their Justice in that kind Nor after that did they constantly put that Power in Execution and for some time it seems they absolutely waved it For the very next year the 35th of H. 8. One Trewinnard a Burgess for Cornewall had been imprisoned at the suite of one Skewis and was delivered onely by a Writ of Priviledge But Skewis not sent for by the Serjeant at Arms to be committed and punished by the House as the use is now So far from that That the Executors of Skewis in the Trinity term of the 36th of H. 8. brought their Action of Debt against Chamond the Sheriff of Cornewall for the Escape but were cast in their Sute and the Priviledge allowed as Dyer mentions it in his Reports p. 59. And in the 18th of Queen Elizabeth a Servant of one Mr. Hall a Member of the House being Arrested upon Complaint made to the House it was referred to a Committee to consider of the Business and how he should be released who made their Report That it could be only by a Writ of Priviledge as appears by the Journal of that Parliament And there is some reason to believe That they never or very rarely sent for by their Serjeant or medled with the Persons of such as broke their Priviledges by arresting or misusing their Servants and Attendants till 43. Eliz. For I find in a Journal of that Parliament which I have by me That a Complaint being made to the House How a Servant of one Mr. Cooke a Member of the House was arrested that President was urged of the 34th of H. 8. And it was said that the House had committed the Sheriffs of London and the Bayliffs for abusing their Serjeant and for arresting of Ferrers Whereupon it was then resolved and ordered That the Serjeant attending the House should go to Newgate and bring away both the Prisoner and his Keeper and likewise command the Bayliff who made the Arrest and the Person at whose suit it was made to appear before the House This was done the Prisoner discharged and the Bayliff and he who
of their not Judging Commoners is apparently proved by the constant practice of the House of Peers in all succeeding times And one thing more would be taken notice of in the Proceedings of the House of Peers at that time after their precipitate and Illegal Condemnation of those Persons without ever calling them to answer The Earl of March a Peer of the Realm was condemned and executed as well as the Commoners and this was looked upon as a President of ill Consequence for the Peerage and therefore they would have a Law to prevent it and that the Nobles of the Land should not be put to answer but in open Parliament by their Peers which they long endeavoured before they could obtain it So as in 15. Ed. 3. n. 6. they adjourned the Parliament severall dayes upon that point and at last appointed four Earls four Bishops four Barons to draw it up into form and got it passed into an Act but two years after the King got that Act to be repealed And so far they likewise took care of Commoners in that Parliament of 15. Ed. 3. as to have it enacted also That no man should be impeached by Commandment without process of Law These were Acts of Parliament and Laws which did bind but the other of their judging none but Peers was a meer particular Order of the House an Agreement betwixt the King them which was no wayes binding to posterity and alterable still at pleasure by the same House that made it Another Battery raised by that Author against the Jurisdiction of the House of Peers is from the Statute of Appeals 1 H. 4. c. 14. And with that he would overthrow the force of that President of John Hall condemned by the Lords in that first year of H. 4. for the death of the Duke of Glocester in the 21 of R. 2. as if that power were now taken from them by that Act and that the Commons by it had taken care it should not be so done by them any more for so he saith p. 23. Which by his leave concerns nothing the proceedings against Hall and will less I may say concern the present question of the proceedings of this House of Lords in the Case of Skinner For that Statute provides only for Tryall of Appeals where a private person next of kin is or shall be prosecutor which was not in Halls Case the prosecution being in the ordinary way at the Kings suit It is true that in the 21 of R. 2. an horrible abuse had been in point of Appeals Certain Lords not by Law capable of it taking upon them to be Appellants and in their own Names acousing in Parliament several persons Peers of the Realm and Commoners of divers Treasons and Murthers making themselves Judges and Parties and condemning them to die without nay against all forms of Law rules of Justice by which means many innocent men lost both lives and Estates This it is that is provided for by that Statute and care taken it shall be so no more not the Ordinary prosecution of Offenders in the Kings Name as Halls was Though one particular in that Tryal is confessed to have been most Irregular and Illegal which was examining him against himself upon Oath but that is not material to the point in question which is Whether the Statute of Appeals forbids such Tryals as assuredly it doth not nor any of those formerly instanced in to have past in the House of Peers And least of all can it concern the late Proceedings in the business of Skinner and the East India Company in which there is no charge either of Treason or Felony where an Appeal onely can take place to bring it within that Statute In the same 23d page an other Argument is used against this Jurisdiction of the Peers in which that Author hath certainly missed his Mark for nothing could be produced that makes more for that Jurisdiction He saith That the Subject of England hath moderated Parlaments and by express words determined that some things cannot be done in Parliament as that any should be impeached there of that concerns his Francktenement or Hereditament and vouches for his Authority Rot. Parl. 10. H. 6. n. 35. where indeed there is such a desire of the House of Commons That none shall be compelled to answer in Parliament concerning his Francktenement But let him tell us how they sped with their desire if their Petition was granted to make it a Law and binding Far from it The Answer is Le Roy saduisera The King will advise which in Parliamentary Language is a flat Denyal So then no alteration was made of what was formerly the Usage and Power of Parliament but all continued as it was before And that before they did in Parliament try and judge such matters is apparent by the desire of the Commons that it should not be so hereafter for if no such thing was their desire it should be no more so was ridiculous but it was so it seems and their desire that it should be altered being rejected leaves it in the same state it was that the Parliament might continue still to do it And by the Parliament in these Cases is to be understood onely the House of Peers for there singly lies the Judicial Power as is confessed and acknowledged by the House of Commons themselves 1. H. 4. n. 79. so it is in the Record but in the Exact Abridgment it is n. 80. That all Judgments appertain to the King and Lords and not to them but when out of especial grace some are communicated unto them and therefore they there desire that the Records may be so entred as they may not be made Parties to them So careful they were then not to seem to encroach upon that Power And whereas the Author of that Pamphlet would make a difference upon the Personal presence of the King in those times in the House of Lords That though they might do it then in some Cases it followed not the Lords might do it alone the King not there it is but a fancy of his making a difference where in truth there is none I have proved it before that the Court is the same be the King present or absent The King in Person can judge no man nor dispose of no mans Life or Estate therefore it is a Maxim That the King can do no wrong the reason is because he of himself and by his own particular and personal Authority can give away no mans Right no not any ones pretended Right where a man hath only a possession though without right the King alone in propria Persona can give no Rule in it but it must be tryed in one of his Courts And his Judges and Ministers whom he intrusts with his Regal Power that with which he is himself invested in his Politick Capacity and which he conveys to them making them thereby the Dispensers of his Royal Justice unto all his Subjects they must be