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
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
Subjects shall commit Treason though out of the Limits of this Realm it shall be tryed in any place that the King shall appoint by Commission under the great Seal So a special Commission was to be issued for it And several other Statutes were afterwards made of the same Nature But for Trespasses as this of the East India Company against Skinner there is no Act of Parliament to authorise the Prosecution at Common Law nor I think any Book Case to warrant the practice of it Book Cases against it there are many even for Trespasses in the Isle of Jersey though within the Kings Dominions because a Venire Facias could not go thither to summon a Jury from thence Mich. 42 as Mr. Prin cites it or 41. as Sir Edw. Cook E. 3. Coram Rege rot 109. An Inhabitant of Jersey complains to the King and Councel of false Imprisonment and several Injuries done him in the Island They send this Bill of Complaint to the Judges of the Kings Bench and there the Bill is dismissed Quia compertum est saith the Record quod negotium praedictum in Curia hic terminari non potest eò quod Juratores Insulae praedictae hic venire non possunt c. Other Cases there are of the same nature And if a Fiction could not help for Jersey being part of the Kings Dominions much less could it help for Forein parts where the King had no Authority at all Yet the House of Lords hath in all times exercised Jurisdiction upon Crimes done and committed in Forein parts as well as those within the Kingdome both Treasons and other Offences As in the Cases of the Lord Latimer for the loss of St. Saviour in Normandy and Oppressions done by him in Britany 50. E. 3. n. 21. Of William de Weston for the surrender of Outherwick in Flanders 1. R. 2. n. 38. John de Gomeniz for Ardes 1. R. 2. n. 40. Pierce de Cressingham and John Spickworth for the Castle of Drinkham in Flanders 7. R. 2. n. 17. The Bishop of Norwich for not doing Service beyond Seas according to promise and as he ought to have done for delivering up Graveling to the French not mustering his Army at Calice as he should have done and not having his Number compleat n. 18. Sir William Elinsham Sir Thomas Trevit Sir Henry Ferrers Sir William de Hurnedon and Robert Fitz-Ralph for delivering strong Holds and Fortresses for Money n. 24. John Hall a Servant to the Duke of Norfolk for Murthering the Duke of Gloucester at Calice 1 H. 4. n. 11. Sir William Richill for but taking the Examination of the Duke of Gloucester at Calice 1 H. 4. n. 93. And multitudes of others who could not have been tryed by the Common Law were tryed by the House of Lords And in truth a man may say the whole Case of Skinner in every point of it was only cognisable before them However it being out of all dispute even by the Confession of the Judges That some things in it are not tryable in Westminster Hall I hope it may be thought reasonable to leave as great an extent of Power to the House of Peers which is the supreme Judicature of the Kingdome as to the Court of Chancery where the ordinary practice is to retain a Cause when there is Equity in any part of it The Lords therefore Ordered the hearing of the Cause spent several daies in it and having with much patience heard all that could be said on both sides appointed a day to consider what was fit to be done super totam materiam Upon which day after a solemn debate they came to this Resolution only in general That Thomas Skinner was to be relieved by that House And referred it to a Committee to consider what damages he had sustained by the Governour and Company trading to the East Indies and to report their Opinions what Recompence was fit to be given him for the same Whilest the Business was under the consideration of the Committee and before the House of Peers had made any Determination of it a Petition was said to be presented by the East India Company unto the House of Commons which I will set down word for word before I give it any Epithete and upon reading it I think every unprejudicate man will say one cannot give it an Epithete bad enough the Petition was thus TO THE HONOURABLE The Commons of ENGLAND in Parliament Assembled The Humble Petition of the Governour and Company of Merchants of London trading to the East Indies Humbly sheweth THat Thomas Skinner lately exhibited a Petition to the Right Honourable the Lords Spiritual and Temporal in Parliament assembled against your Petitioners many of which are and were Members of this Honourable House when the said Petition was exhibited for Injuries pretended to be done by your Petitioners Factors in the East Indies in seizing his Ship Goods and Money and dispossessing him of a small Island there all which Matters excepting what concerns the Island are Matters clearly determinable in his Majesties Ordinary Courts of Law as by the Judges attending their Lordships hath been resolved and reported And for the Island the same is parcel of the Dominions of a Foreign Prince and so the Right thereof only determinable by the Laws of that Prince That though the Petitioners did humbly tender a Plea to their Lordships for that the Petition was in Nature of an Original Complaint concerning Commoners only and not brought to their Lordships by Writ of Error or Bill of Review or any way of Appeal and that the Matters therein were relievable in the Courts of Westminster Hall and thereupon prayed the Judgement of that High Court whether it would please to take further Cognizance thereof Yet their Lordships have been pleased not only to give a hearing to all the Matters in the said Petition contained but have denied to gran◠the Petitioners a Commission or so much a◠time to send for their Witnesses now inhabiting upon the place where the Injuries were pretended to be done and without whos◠Testimony it was impossible for the Petitioners to make their Defence That upon the said hearing their Lordships were further pleased to appoint a Committee to assess damages against your Petitioners which Committee is now proceeding thereon accordingly whereby several Members of this Honourable House who are of the said Company as well as others your Petitioners may be highly detrimented All which proceedings as your Petitioners humbly submit to your Honourable Judgements are against the Laws and Statutes of this Nation and Custome of Parliament In tender Consideration whereof and for as much as these unusual and extraordinary Proceedings of their Lorships are not only grievous to your Petitioners at present but may also be a President of ill Consequence to all the Commons of England hereafter and for as much as your Petitioners have no way of Relief in this Case otherwise than by making their humble Addresses to this Honourable
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
a jurisdiction especially when many in number are produced and some of all times and in every Kings Reign of which the Records can be had which shewes a Continuance of and so an unquestionable Right to such a power One or two or twenty then in the Negative that the Lords did not do so in such and such Cases Nay I say more were the Number equall as many in the Negative as in the Affirmative yet it could not disprove their Jurisdiction It would only shew that their Lordships were free Agents to do it or not do it as they saw Cause But their Jurisdict on remained still enure to do it whensoever they would And when all is done I may say all this is Nihil ad rem and concernes not the point in question which is If the Lords have done well or ill in relieving Skinner against the East-India Company for he was not relievable aâ— the Common Law as hath been shewed And if he had not been relieved there had been a failer of Justice So as there was a necessity of their Lordships acting in that particular to keep up the publick Justice of the Kingdome And all Presidents and all that can be said and urged to shew that the House of Peers ought not to meddle with matters determinable at Law are in truth out of doors and can not concerne this House of Peers which never did it but the contrary For whensoever it appeared that any business before them was proper to be tryed at Law they presently dismissed it Yet since their Right is questioned they must defend it though they gave no Occasion for it having not at all put that Right in execution nor as it may well be presumed by their proceeding hereto ever intending it As to the 6 other Presidents oâ— Petitions Answered in the Parliament of the 14 of E. 2. which the Gentlemen of the House of Commons themselves seemed not to lay so much weight upon The Lords thought they did wisely in it for they were not such as would bear weight to build upon The Lords of that Parliament according to the several natures of the businesses Petitioned for dismissed the Petitioners with several directions Which shewes they took Cognizance of those matters One was directed to take out his Writ novaedisseisinae and an other to bring his action of Trespass the third they send to the Common Law the fourth into the Chancery the fifth they Order to bring his action of debt the sixth who complained of several things to him they gave particular Answers and particular Directions to every point One of which they said pertained not to the King that is to his Laws so they could give no Order in it it was concerning the Resignation of a living which was to be tryed by the Laws of the Church For the other points they disposed them into their proper Channells Was this to be done by a Court that had no Jurisdiction in these matters No rational man can think so But it would be considered that in this Case of Skinners the Lords could give none of those Answers neither sibi perquir at per Breve de Cancellaria not Sequatur ad Legem Communem or tobring this or the other Action For neither Law nor Equity in the Ordinary way of the Inferior Courts could relieve him for the loss of his real Estate in the Indies the Judges said he was not relievable for his House and Island So as none of those Presidents are applicable to the point in question Not that the Law even in the ordinary execution of it provides not for the punishment of all Crimes It declares against and condemns the Fact but can not reach the person to punish him when he hath committed that Fact in a Forrein Country Ubi lex Angliae non currit And the House of Peers hath but helpt the Law to inflict such punishment upon Offenders as by the Law was due to them which otherwise they had escaped And were it but this it sufficiently justifies the Proceedings of the Lords in that particular Case Then as to the Jurisdiction of that House in the generall it will be made as apparent as the Sun at Noone how they have in all times exercised it to the relief of all persons who stood in need of their relief even for things done within the Kingdome Where the Law had provided a remedy they applyed it Some times themselves would take the pains in Cases that deserved it where there was some thing extraordinary to move them to it and when they were at leisure from the more weighty and important Affaires of the Kingdom Some times they would send it down to the Inferior Courts to do it for them and give them Authority for it which they could not have done if they had not had it themselves for Nemo dat id quod non habet as in the Case of certaine Rioters 11 H. 4. N. 38. in the Exact Abridgement Whom they turned over to the Kings Bench and gave those Judges Authority to the end the busines where the Law had not provided there they would not meddle themselves and declared it so That none else neither should presume to meddle As upon the Petition of Martin Chamberlain in that 14 E. 2. p. 409. Who upon the suppression of the Knights Templers desired to be put into the possession of a mannor which the Templers whilest they stood had held of him The Answer is Quod non est Lex ordinata there was no Law ordained in the Case And because the Law had not determined how those Lands should be disposed of the Lords would say nothing to it But will it not be said that this makes good what the Commons objected against the Lords retaining this Cause of Skinners because some parts of it were not determinable in Westminster-Hall Whereas there being no Law concerning those points till there had been one made their Lordships should not have meddled with them As the Lords in that Parliament of E. 2. would do nothing in Chamberlains Case because the Law had not provided for it And as in those two Cases mentioned by the House of Commons That of an Inheritrix Forfeiting by her husbands default where as the Statute of Westminster the second expressed it a Durum est was in the Case And that of the Hospitall of St. Leonards 2 H. 6. N. 37. which had a clear Right to a Corn Rent Yet the Lords could not relieve them but both were faine to have Acts of Parliament This receives a twofold Answer One That there are other Motives in this Case to make the Lords retain it and give Skinner Relief Here is a poor man oppressed by a rich Company with whom he was no waies able to wage Law And that Consideration hath in all times prevailed with that House which is composed of Persons of generous and noble Spirits who can not see poor men oppressed without feeling in their hearts an Inclination and
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.
then Per Legem Terrae is all one with Per Legem Angliae or secundum Legem et Consuetudinem Angliae and what ever is done secundum Legem Angliae is done Per Legem Terrae And in his 1 Inst l. 1. c. 1. Sect. 3. He tells us what Lex Angliae is he saith there are divers Laws within the Realme of England and reckons them up Lex et Consuetudo Parliamenti is in the front of them He names many more the Civil Law by which the Court of Constable and Marshall and the Court of Admiralty and Ecclesiastical Courts do act the Law of War for the Court Martiall to act by the Law of Merchants the law of Stanneries Particular Customes in several places of the Kingdome Statute Lawes established by Authority of Parliament Whoever and whatever is tryed by any of these Laws be it for life Lands or goods it is still according to Magna Charta and though not Per Judicium Parium yet Per Legem Terrae The Law and Custome of Parliament is one of these and the Lords now acting agreeably to that act agreably to Magna Charta and that they have acted so is I think sufficiently proved all ready and will be further hereafter when we shew you Presidents for it from the beginning of Parliaments So for the other Statutes of the 25 of E. 3. c. 4. and the 42. c. 3. They do not at all concerne the House of Peers and were made only to prevent Vexation by Petitions and false accusations before the King and his Privy Counsel as appeares by the Preambles of those Statutes Though the Gentlemen of the House of Commons who managed the Conference were pleased to give them an other Interpretation and to say that the Petitions and suggestions to the King or his Counsel which are condemned by those Statutes are to be understood of those brought to the King and House of Lords But can it be rationally believed That the House of Peers of those times should themselves make so many Lawes pass so many Acts of Parliament five in the space of 17 years the 25 of E. 3. c. 4. the 28 c. 3. the 37 c. 18. the 38 c. 9. the 42 c. 3. all of them prohibiting that any man should be apprehended imprisoned or disinherited upon an accusation or suggestion to the King or his Counsel and enjoyning all Proceedings to be by Original Writ or by Inditement or by Presentment of good and lawfull People of the Neighbourhood And they know themselves to be intended by those Acts and yet still should act contrary to them judge and determine so many Causes both Criminal and Civil as they did from time to time Nay can it be believed That the House of Commons in those daies would bring up Impeachments against men to have them tryed at the Lords Barr if they did then conceive that those Acts of Parliament did forbid the Lords to meddle For though the Commons House are sometimes called the Grand Inquest of the Kingdome to present the Grievances thereof it is presumed they will not say that their Presentment is the Presentment intended by those Statutes For the Presentment mentioned there is the very description and true Character of your Country Juries The words of the Statute are The Presentment of good and lawful people of the same neighbourhood where such Deeds be done And can any man think that this is to be understood of the House of Commons No certainly What then is it that makes the Lords Proceedings upon the Impeachments of the Commons to be Legal and not contrary to those Acts of Parliament Since there is neither Writ nor Inditement nor Presentment and yet men are brought to tryal condemned and executed by their Judgements but only this that it is the Common Law of the Land being the Ancient unquestioned and undoubted Law and Usage of Parliaments And thereby is there a clear demonstration of the true meaning of those Statutes that it was the Regulation of the Kings Privy Counsel they aimed at and not of the House of Lords that Counsel of which Sir John Lee was one in that 42 of E. 3. n. 23. who was tryed and censured by that very Parliament in which that Act was made One of the Articles against him was That being of the Kings Counsel and Steward of his House be caused sundry men to be attached and and brought before him and made them answer singly to him as if it had been to the body of the Counsel He was fined for it and committed to the Tower The Lords John Nevil was likewise of this Counsel for misbehaving himself in it Judgment of Imprisonment and loss of Lands goods and Office was given upon him 50 E. 3 n. 34. And in the same Parliament n. 18. The Lord Latimer was accused for divers miscarriages being a Counsellor and for them he was by the Bishops and Lords committed to the keeping of the Marshall of England and adjudged to make Fine and Ransome at the Kings pleasure It is true he was enlarged presently by the Earl Marshall one Arch-Bishop three Bishops the Prior of St. John three Earls fifteen Barons and thirteen Knights being his Manucaptors but the Commons desired further that he might be no longer of the Kings Counsel which was granted And this was not to put him out of the Lords House for he continued still a Member there and had his Writ of Summons to come to the next Parliament in the 51 th year of that King There is nothing more clear then that those Statutes are all to be understood to mean the Privy Counsel and so did the two Houses of Parliament interpret them 3 Car. in their Petition of Right where the expression is That against the tenor of those Statutes divers were detained by his Majesties special command certified by the Lords of the Privy Counsel and one may bodly affirme that never any Statute or Act of Parliament did term the House of Lords the Kings Counsel So that Article of Magna Charta urged likewise at the Conference Communia Placita non sequantur nostram Curiam concernes not them neither It was to fix the Court of Common Pleas which as all other Courts was before that Ambulatory and followed the King where ever he was if he was in the Kingdome and the Writs were made returnable Coram nobis ubicunque fuerimus which was a great Grievance to the subject and cause of many discontinuances in sutes The following words clear it Sed teneantur in aliquo certo loco Now the place of the meeting of the Parliament was alwaies certainly known being expressed in the Writ of Summons which shewes it was not meant for them And whereas it was said That in Cases of Freehold there is no Proceeding without an Original Writ Scarse any that walkes Westminster-Hall but knows the contrary and the Course of Proceeding to be so fart otherwise as that not one Tryal for Land of forty comes on upon
such a Writ But by the delivery only of a Declaration of Trespass and Ejectment any mans Inheritance of never so much value may be questioned and brought to Tryal if it shall continue his or no Nay There is an Act of Parliament 18 El. c. 14. which provides expresly That after a verdict given the want of an Original Writ shall be no Cause of Error to be pleaded in Arrest of Judgement but that Judgement and Execution shall follow So farr is it from being true that no Freehold can be judged without an Original Writ And faine would I aske what Original Writ they use in Chancery to sue men there for their Freehold Is it any more then for the Complainant to put in his Petitionary Bill of Complaint then take out a Writ of Subpoena for the Defendant to come in and answer by such a day just what was heretofore used in the House of Lords the Plaintiff put in his Petition and the House ordered a Writ of Summons to Issue out to call in the Defendant But in later times that House as is usuall for all Courts to alter their Method of Proceeding and find out some more compendious and easy way both for themselves and for Suitors so have they instead of a Writ as formerly which asked more time and charge to take out made it now that an Order of the House shall be sufficient for that purpose but they may returne to their Writs of Summons again when they please And as to Original Writs ow unseasonable is it and ggainst all reason to make it now an Objection against the Judicature of the House of Peers That the Proceedings there not being upon those Writs they ought not to meddle with matters of Freehold Since the Practice of the Law is now so changed that even Inferior Courts have left off the use of them whereas heretofore when all other Courts were by the Law and the practise of those times tyed to those Forms the House of Lords was not but exercised still their Judicature in their own Parliamentary way without Original Writs yet no such exception was then taken but all their Judgements were still allowed of approved and obeyed and punctually executed And the other Assertion doth not operate much neither viz. That it was never heard of a Writ Returnable Coram Dominis Spiritualibus et Temporalibus For if it be meant of Original VVrits what doth that signifie seeing they are not at all necessary no not used now for Commencing of suites even in Westminster-Hall much less in Parliament where the use hath ever been otherwise And if meant of other VVrits it is a foul-mistake For it hath been the Common practice of the House of Peers especially in former times upon any Complaint made to them by Petition to Order a VVrit to Issue out with the Petition annexed or containing the matter of it directed sometimes to the party himself petitioned against commanding him to appear sometimes to the Sheriff of the County commanding him to summon the party to appear before them at a certaine day and the Writ withall to be then returned so to enter into the examination of the busines and afterwards proceed to Judgement Ancient Presidents of this are sans nombre 25 E. 1. m. 14. Upon Complaint of the Arch-Bishop of York That the Advouson of the Rectory of Bridgeford was detained from him by Boniface de Salucijs a Writ reciting the matter complained of is ordered to be sent unto him requiring him to appear in Parliament the morrow after St. Gregory the Pope at Carlile and shew cause Quare ad finalem expeditionem praedictorum negotiorum minime fuerit procedendum why the House should not proceed to a final dispatch of the busines and be was enjoyned to bring the Writ with him habeas ibi tunc hoc Breve is the Close of the Writ The Printed Book of the Placita Parliamentaria in Ed. 1. time is full of Presidents of this Nature I have in this discourse cited very many both out of that Book other Records of Parliament under the other Kings I shal not therefore heap uy any number here though it were easie to do I will only give a short account of one which seemes to me a memorable one out of that Book of the Pacita Parliamentaria p. 1.57 the 21 of E. 1. Magdulphus sonne of Malcolin Earl of Fife in Scotland complaines in Parliament to King Edward That John King of Scotland had wrongfully dispossessed him of certain Lands in Scotland called Reyes and Crey Whereupon King Edward directs his Writ to the Sheriff of Northumberland commanding him to go into Scotland taking persons with him to testifie it and there deliver a Writ of Summons to the King of Scotland to appear before him such a day ad respondendum praedicto Magdulpho super praemissis et ad faciendum et recipiendum ulterius quod Justitia requireret Which was by the Sheriff performed at Striveling the morrow after St. Peter ad vincula who made his returne accordingly to the Parliament And the King of Scotland appeared at his day and was asked if the Kings Writ had been delivered to him by the said Sheriff which he acknowledged and said further Quod semper paratus est et erit Brevia et mandata Regis ut Domini sui admittere Then be was bid to deliver in the Writ and he said he had delivered it to his Chancellor and the Chancellor examined said he had it not there But yet upon the Kings acknowledgement that he had received such a Writ his appearance was admitted and be was willed to Answer to the matter of complaint put in by Magdulphus His Answer was That he was King of Scotland and could not without the Counsel and Advice of the good men of his Kingdome speak to any thing that concerned it This was judged by the Parliament to be Contempt us manifeslus et Inobedientia expressa and it was further Ordered that three of the Principal Castles of Scotland should be seised into the Kings hands and so remain Quo-usque de contemptu et Inobedientia praedicta cidem Domino Regi satisfecerit But the King of Scotland came before the pronouncing of the sentence Coram Rege et Consilio suo et fecit Domino Regi quandam Supplicationem ore suo proprio per verba subscripta which words were these Sire Ieo suy vostre home du Royaulme d'Escoce et vous prie que de ceo que vous me avez mis adevant que touche les gents de mon Royalme aussy come a moy voillez mettre en soeffrance jesques a taunt que ieo ay a eux parle que ieo ne sey suppris per defaute de Conseil desicum les gens que cy sont oue moy ne moy voillent ne osent conseiller sauns autre du Royaulme et quand ieo me averay a eux consaile ieo vous respondray a vostre primer Parliament apres
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