of Life and Death and this Tryal ought to be Mutual since the performance of it is upon their Honours without any Oath taken And here by the way your Lordships may take notice how great regard the Law hath to the word of a Peer when spoken upon his Honour I need say no more upon this Topick since your Lordships in that Excellent Poem A PARADOX against Liberty have exprest your thoughts so extremely well No Temporal Lord but only Lords of Parliament shall have this kind of Tryal and therefore the Eldest Son and Heir Apparent of a Duke in the life of his Father though he be called an Earl is excluded And this was the Case of Henry Howard Earl of Surrey Son and Heir Apparent of Thomas Duke of Suffolk in the 38. of H. 8. Likewise the Son and Heir Apparent of an Earl though he be called Lord or Baron and all the younger Sons of Kings are Earls by Birth though they have no other Creation yet shall they not be partakers of this or other Priviledges incident to the Lords of Parliament Those that are Barons of Ireland or Scotland Cok. Litt. 16. b. 3 Inst f. 30. 2 Inst f. 48. committing Treason c. in England shall not have their Tryal by Peers though they were born in England for they receive their Dignity from a King of their Nations If a Duke or other Noble-man of France Co. L. 7. Calvin's Case Spain c. comes into England by the King 's safe Conduct in which the King stiles him Duke according to his Creation nevertheless in all proceedings in the King's Courts he shall not be stiled by his Name of Dignity much less a partker of the Priviledge of this Tryal by Peers But if the King of England at this day create one of his Subjects of Scotland to be Viscount within England or by ordinary Summons under his Great Seal call him to the Upper House of Parliament and assign him a Place and to Vote there in his Great Council he shall be thereby a Peer of this Realm and enjoy all their Priviledges QUERY IV. What Witnesses are required in Indictments and Tryals of Treason or misprision of Treason SOL. By the Ancient Common Law one Witness or Accuser was not sufficient to Convict any person of High-Treason for in that case it was to be tryed before the Constable and Marshal by Combat but they have no Jurisdiction to hold Plea of any thing which may be determined by Common Law And that two Witnesses are requisite appears by the Books of Law and the Common Law herein is grounded upon the Law of God Mirr cap. 3. Ordin de Attaint Brad. L. 5. f. 354. 48 Ed. 3.30 35 H. 6.46 Fortescue c. 32. expressed both in the old and New Testament Deut. 17. v. 6. Numb 35. v. 30. Deut. 19. v. 15. Matth. 18. v. 16. 2 Cor. 13. v. 1. and this seemeth more clear in the Tryal by Peers because they come not de aliquo Vicineto whereby they may take notice of the Fact in respect of Vicinity as other Jurors may do By the Stat. of 1 E. 6. c. 12. none shall be Indicted Arraigned Condemned or Convicted for any Treason c. for which the Offender shall suffer pains of Death Imprisonment loss or forfeiture of his Goods Chattels Lands or Tenements unless he be accused by two sufficient and lawful Witnesses or shall willingly without violence confess the Fact The same provision is made by 5 E. 6. wherein I must observe to your Lordships that two lawful Accusers in this Act are taken for two lawful Witnesses for by two lawful Accusers and accused by two lawful Witnesses as 't is in 1 E. 6. are Identical which word Accusers was used because two Witnesses ought directly to accuse that is charge the Prisoner for the Common Law respects none else and therefore lawful Accusers must be such as are allowed by Laws And thus 't was resolved by the Justices in the Case of the Lord Lumley Hill 14. El. for if they should not be taken according to the meaning aforesaid then there must be two Accusers by 5 E. 6. and two Witnesses Dyer f. 99. W. Thomas his Case by 1 E. 6. and the strange conceipt in 2 Mar. that one may be an Accuser by Hear-say was utterly denied in the Lord Lumley's Case And here since your Lordships did not make it a Query I shall not so strictly consider it whether the Testimony of a Forreigner may be admitted in case of Treason The Duke of Norfolk at his Arraignment said that nothing which was yet produced was of any moment against him save only the Bishop of Ross his Testimony and that by Opinion of Bracton was not to be admitted because he was a Forreigner to which Callin Lord Chief Justice answer'd that in such Causes as this the Testimony of Forreigners is of force and it lies in the Peers to attribute to Camb. El. A. 1572. or derogate from such Testimony as they shall think fit Where Bract. saith tht an Alien born cannot be a Witness it is to be understood of an Alien Infidel for the Bishop of Ross being a Scot born was admitted to be a Witness and sworn 14 El. by Opinion of all the Justices Assistants If a person be accused by one Witness touching one fact and by another concerning another fact the one committed in Middlesex the other in Surrey he that swears the fact done in London joyned to the other Witness that swears to the fact done in Surrey shall be esteemed two sufficient Witnesses in case of Treason and so was it ruled by the Judges at the Old-Baily upon the Tryal of the Five Jesuits Whitebread Harcourt Turner Fenwick and Gaven according to the Resolution in Sir H. Vane's Case at the King's-B Bar where one Witness prov'd the levying War in one County and the other prov'd the levying War in another County and so though they were but single Witnesles of single facts yet both coming up to the Indictment they were adjudged two sufficient Witnesses to maintain it QUERY V. Whether a Noble-man being Arraigned can challenge his Peers SOL. If the party arraigned says Coke be a Lord of Parliament and a Peer of the Realm and is to be tryed by his Peers he shall not challenge any of them for they are not sworn as other Jurors be but find the party guilty or not guilty upon their Faith or Allegiance to the King Cok 's Litt. 156. b. and they are Judges of the fact and every of them doth separately give his judgment beginning at the lowest Again Cok 's Litt. 294. a. he tells us that the four Knights Electors of the Grand Assize are not to be challenged for that in Law they be Judges to that purpose and Judges cannot be challenged and that 's the reason why Noblemen cannot be challenged for Mag. Charta saith Per Judicium Parium suorum Cap. 29. and not Veredictum
Prospect of the Extent of his Lordships Jurisdiction and Power and the Rules he ought to judge by Although the Power and Authority of the Lord High-Steward hath been since the Reign of King H. 4. but hac vice yet is the hac Vice limited and appointed as when a lord of Parliament is Indicted of Treason or Felony then the Grant of this Office under the Great Seal of England is to a Lord of Parliament reciting the Indictment Nos considerantes quod Justitia est virtus Excellens Altissimo complacens eaque prae omnibus uti volentes ac pro eo quod Officium Seneschalli Angliae cujus praesentia pro administratione Justitiae Executione ejusdem in hac parte faciend Requiritur ut accepimus jam valeat de fidelitate Strenuitate provida Circumspectione Industria Vestris plurimum confidentes Odinavimus Constituimus Vos ex hac causa causis Seneschallum Nostrum Angliae ad Officium illud cum omnibus eidem Officio in hac parte debitis pertinentibus hac vice gerend accipiend exercend Dante 's concedentes vobis te nore praesentium plenam sufficientem Potestatem Authoritatem ac Mandatum speciale Indictamentum praedict c. So that this Great Officer is wholly restrained to proceed only upon the recited Indictment At every Coronation he hath a Commission under the Great Seal hac Vice Cok's Litt. 79. a. b. 4 Inst 59. to hear and determine the Claims for Grand Serjeanties and other Honourable Services to be done at the Coronation for the solemnizing thereof for which purpose he holds his Court some convenient time before the Coronation The first Person that was created hac Vice for solemnizing the Coronation of H. 4. was Thomas his second Son and upon th eArraignment of Thomas Holland Earl of Huntingdon the first that was created Steward of England hac Vice was Edward Earl of Devon Lastly The Order and manner of Arraigning a Peer of the Realm before this Creat Officer is to be consider'd As the Peers of the Realm who are Tryers are not sworn so the Lord High-Steward being Judge is not sworn likewise yet ought he to proceed according to his Letters-Patents Secundum Legem consuetuainem Angliae Co. Litt. 142. a. 4 Inst f. 60. for all Commissions and Charters for Execution of Justice are facturi quod ad Justitiam pertinet secundum Legem consuctudinem Angliae But admit the Commission should be Secundum sanas Discretiones vestras How then I answer Discretio est discernere per Legem quid sit Justum that is to discern by the right Line or Law and not the warpt measure of private Opinion Si a Jure discedas vagus eris erunt omnia incerta 'T is certain he that out-runs the Law hastens to his own destruction Commissions then that Authorise proceeding secundum sanas discretiones c. in sense are secundum Legem c. The Earl of Hantingdon was Indicted of High-Treason in London 1 H. 4. f. 1. a. by a Commission before the Mayor and Justices for that he with other persons agreed to go a Mumming which the French call Ma querade on the Night of Epiphany in which they intended to kill the King then at Windser And after the King granted a Commission to the Earl of Derby reciting That whereas George E of H. was Indicted of High-Treason and that he would that right should be done and because the Office of the Steward of England is now void he grants it to the said E. of Derby to do Justice to the said E. of Huntingdon commanding by the same Commission all the Lords to be attendant upon him and Precept was likewise given by the same to the Constable of the Tower to be attendant on him and to bring the Prisoner viz. the E. of H. before the said E. of D. on the day appointed whereupon the E. of D. the same day sat in Westminster-Hall under a Cloth of Estate by himself and the E. of Westmerland and other Earls and Barons sat at a considerable distance and all the Justices and Barons of the Exchequer sat round a Table and after three O Yes's made and the Commission read the Justices deliver'd the Indictment to the Lord Steward which was deliver'd to the Clerk of the Crown who read it to the said E. of H. which he confessed whereupon Hill the King's Serjeant prayed Judgment which the Lord Steward after he had rehearsed the whole matter pronounced in this manner That the E. of H. should be taken back to the Tower of London and from thence be drawn to the Gallows and there hanged and being yet alive cut down and his Entrails drawn out of his body and burnt and that he should be beheaded and quartered Et sic Deus propitiatur Animae suae The Justices then said that if the E. of H. had deny'd the Treason the Lord Steward should have demanded of every Lord in open Court what they thought in their Consciences beginning with the Pulisny Lord and if the greater number said Guilty then the Judgment to be given as above I refer your Lordships to Cambden's Annals of Q. Eliz for the manner of the Tryal of Tho. Howard Duke of Norfolk before George Talbot E. of Shrewsbury Lord High-Steward upon that occasion Sir Ed. Coke describes the manner how a Peer is to be tryed in case of Treason c. before the Lord High-Seward of England He Must be Indicted before Commissioners of Oyer and Terminer or in the King's Bench if the Treason or misprision Felony or misprision of Felony be committed in that County where the King 's Bench sit when he is Indicted then the King by his Commission under the Great Seal of England constitutes some Peer of the Realm to be hac Vice Steward of England who is Judg in this case The Commission recites the Judgment generally as 't is found and Power given to the Lord Steward to receive the Indictment c. and to proceed secundum Legem consuetudinem Angliae A Commandment is also given by the same to the Peers of the Realm to be attendant and obedient unto him as also to the Lieutenant of the Tower to bring the Prisoner before his Lordship Then a Certiorari is awarded out of Chancery to remove the Indictment it self before the Lord Steward which may either bear date the same day of the Stewards Commission or any day after The Lord Steward directs his Precept under his Seal to the Commissioners to certifie the Indictment such a day and place He also makes two other Precepts one to the Constable or Lieutenant of the Tower to bring the Body of the Prisoner before him at such a day and place as also to a Serjeant at Arms to summon Tot tales Dominos Magnates Proceres hujus Regni Angliae praedicti R. Comitis E. Pares per quos rei veritas melius sciri poterit quod ipsi
personaliter compare ant coram praedict Seneschallo apud Westm tali die hora ad faciend ea quae ex parte Domini Regis forent facienda c. In this Summons four things are observable 1. That all these Precepts most commonly bear date in one day 2. That no number of Peers are named in the Precept and yet there must be twelve or above 3. That the Precept is awarded for the return of the Peers before any Arraignment or Plea pleaded by the Prisoner 4. that the Lords are not de Vicineto and therefore the sitting and Tryal may be in any County of England At the day the Lord High-Steward with six Serjeants at Arms before him takes his place under a Cloth of Estate and then the Clerk of the Crown delivers to him his Commission who re-delivers it After three O Yes's by a Serjeant at Arms and Commandment given in the Name of the Lord High-Steward of England to keep silence the Commission is read then the Usher delivers to the Steward a white Rod who re-delivers the same which he holds before the Lord High-Steward It was deliver'd upon the like occasion to the Earl of Shrews bury by Garter King at Arms. O Yes being again made Commandment is given in the Name of the H. Steward to all Justices and Commissioners to certifie all Indictments and Records which being deliver'd into Court the Clerk of the Crown reads the Return and the Serjeant at Arms is commanded to return his Precept with the names of the E. and Barons by him summoned and the Return of that is also read then are the Peers summoned to answer to their Names which are recorded When they have taken their places and the Prisoner set to the Bar then the Lord High-Steward delcares unto them the cause of their Assembly and perswades the Prisoner to Answer without fear assuring him that he shall be heard with patience and that Justice shall be done to him After this the Clerk of the Crown reads the Indictment and proceeds to the Arraignment of the Prisoner and if he plead Not Guilty the Entry is Et de hoc de bono malo ponit se super Pares suos c. After which the Lord High-Steward gives a Charge to the Peers exhorting them to try the Prisoner indifferently according to their Evidence which is opened by the King 's Learned Counsel who produce their Proofs for the King against the Prisoner Soe or all of the Judges are ever attendant upon the Lord High-Seward and take their places at the feet of the Peers After the Evidence is given for the King and the Prisoners Defence made he is withdrawn from the Bar under the custody of the Lieutenant whilst the Tryers go to some place to consider of their Evidence upon debate of which if they doubt of any matter they cannot send to the High-Steward to ask the Judges any Questions of Law but in the hearing of the Prisoner that he may know whether the case be rightly put for de facto jus Oritur neither can they send for the Judges to know their Opinion but the H. Steward ought to demand it in Court in the presence of the Prisoner When the Lords are agreed they return into Court and the Lord H. S. publickly in open Court beginning with the Puisny Lod says unto him My Lord A. is W. v. S. guilty of the Treasons whereof he hath been iNdicted and Arraigned or any of them And the Lord standing up says Guilty or Not Guilty and so upward of the rest serialim The Peers having given their Verdict in the absence of the Prisoner the Prisoner is brought to the Bar whom the Lord High-Steward acquaints with the Verdict of his Peers and gives Judgment accordingly either of Condemnation or Acquittal After the Service is performed and O Yes made for dissolving the Commission the white Rod is taken by the Lord High-Steward in both his hands and broken in pieces Thus have I presented to your Lordships a Scheme of that solemn order and manner how a Peer of the Realm is Arraigned before the Lord High Steward of England I might amass several Presidents of like nature wherein the Axe of Death is born before the Prisoner with the Edge from him and after being found Guilty with the Edge to him I wish your Lordships may never know more of this Point by a fatal experience Now it remains that I give Solutions to those Queries your Lordships were pleas'd to put concerning Tryals Treasons c. by which I wish you may arrive at some reasonable satisfaction QUERY I. How Antient this Tryal by Peers may be SOL. Without doubt 't is Coetaneous with the Office of the Lord High-Steward and how old that is hath been already shewn however I shall present one Authority which proves that Tryal by the Peerage was in use in the Reign of William the Conquerour who in the beginning of his Reign created William Fitz Osborne Earl of Betrevil in Normandy Earl of Hereford His Son Roger succeeded him and was E. of Hereford who under colour of his Sisters Marriage near New-Market in Camb. Shire where many of the Nobility were assembled conspir'd with them to receive the Danes into England and depose William the Conquerour who was then in Normandy from his Kingdom of England to effect which he with others rose This Treason was reveal'd by Walter E. of Huntingdon who was one of the Conspirators and Son to the Great Syward Earl of Northumberland for which Treason Roger E. of Hereford was apprehended by Urse Tiptof then Sheriff of Worcestershire A. 8. W. 1. and after tryed by his Peers and found guilty of the Treason per Judicium Parium suorum But he ended his days in Prison QUERY II. Whether a Peer can wave his Tryal by Peers SOL. He cannot wave his Peers and put himself upon the Tryal of Twelve Free-holders for the Stat. of Mao Shart is 26 H. 8. that he must be ryed by his Peers and so it was resolved in the Lord Dacre's Case QUERY III. What Lords shall be tryed by Peers in cases of Treason c SOL. Every Lord of Parliament that hath Voice therein and called thereto by the King 's Writ shall not be tryed by Peers but only such as sit Patrone Nobilitatis as Dukes Marquesses Earls Viscounts and Barons and not such as are Lords of Parliament by reason of their Baronies which they hold in right of the Church as Arch-Bishops and Bishops of this Realm for though they be Lords of Parliament yet upon an Impeachment either of Treason or Felony they shall not be tryed by the Peers of the Realm but by a Jury of Knights and other substantial persons pon their Oaths and one reason alledged by some how truly let others judge is forasmuch as Archbishops and Bishops cannot pass in like cases upon the tryal of any other of the Peers their Lordships being prohibited by the Common and Ecclesiastical Laws to be Judges
When the Peers that were to be Tryers at the Arraignment of the Earl of Essex and Southampton were called by name Camb. Eliz. A. 1601. the Earl of Essex demanded whether it were not lawful for them as the use is to private men to except against some of their Peers The Judges answer'd that such was the Credit and Estimation of the Peers of England that they are neither compelled to an Oath in Arraignments nor subjected to Exceptions QUERY IV. Whether the Lord High-Steward can collect the Evidence against the Prisoner or confer with the Lords touching the same in the Prisoners absence SOL. To this I answer negatively for after the King 's Learned Counsel have produc'd all their Evidence the Prisoner ought to be present at all Conferences touching the same and therefore it shall be necessary for all Prisoners after Evidence given against them before departure from the Bar to require Justice of the Lord High-Steward and of the other Lords and that no Question be demanded or conference had by any with the Lords but in open Court in their own hearing otherwise such Prisoners shall take no advantage thereof after Verdict and Judgment given QUERY VII If the Lords be equally divided between guilty and not guilty whether the party tryed shall be acquitted or condemned SOL. In an Information in the Court of Star-Chamber by the Attorney against Sir Stephen Proctor and others for conspiracy against and scandal of the Earl of Northampton Co. 4. Inst f. 64. and Edward Lord Wootten two of his Majesties most Honourable Privy Council at the hearing of which Cause there sat eight in Court whereof four condemned the Defendants and the other four viz. the Lord Chancellour two Bishops and the Chancellour of the Exchequer acquitted them the Question was according as your Lordships have propos'd it Whether the Defendants should be condemned or not And here it was moved by the King 's Learned Counsel that when the Voices are equal that in that case of which part the Lord Chancellour was on that side it should be determin'd without regard either to Plaintiff or Defendant And it was resolved that regularly and de communi Jure in respect of the equality of Voices that no sentence could be given as it holdeth in the High Court of Parliament and all other Courts according to the old rule Paribus sententiis Reus absolvitur And sentence was never given against Sir Stephen Proctor agreeable to the general rule in other Courts In this point the Civil Law concurs with the Common Inter Pares Numero Judices si dissonae sententiae proferantur in liberalibus quidem causis secundum quod a Divo Pio constitutum est pro libertate statutum obtinet in aliis autem causis pro Reo quod in Judiciis publicis obtinere oportet Vid. Grot. lib. 2. c. 5. uu 18. de Jure Belli c. Reus sententiis paribus absolvitur semper quicquid dubium est humanitas milinat in melius Alter Judex damnat alter absolvit inter dispares sententias milior viniat I shall here take leave to make a little digression from the Query and consider if a person that is forth-coming can by Parliament be attainted of High-Treason and never call'd to answer This seems as much worth the inquiry as other your Lordships Queries and though omitted by you I shall not let it pass without some notice By the 2. of H. 6. we find a great Peer condemned without Arraignment or Answer Co. 4. Inst f. 37 38. the like in 32 H. 8. one Attainted though living and forth-coming of High-Treason without ever being called to Judgment The legality whereof was scrupled and demanded of the Judges whether the Act were void or not with some pause they adjudged it perillous and of bad example to the Inferiour Courts but 't was agreed if condemned by Parliament to be indisputable though Cap. 29. 5 E. 3. c. 9. 28 E. 3. c. 5. of Mag. Char. affirms that no man ought to be condemned without Answer without a Quid fecisti and all due proceedings at Law Senec. in Loco Qui statuit aliquid parte inaudita altera licet aequum statuerit haud aequus fuerit With the Municipal Laws agree those of the Romans Divi severi Antonini Magni rescriptum est D. 48.17 ne quis absens primatur hoc jure utimur ne Absentes damnentur neque enim inaudita causa quemquam damnari aequitatis ratio patitur Acts 25. v. 16. It is not the manner of the Romans to deliver any man to death before the accused have his accusers face to face and license to answer for himself QUERY VIII Whether the King and one of the Houses alone or both without the King can declare a Treason within the Stat. of 25 E. 3. cap. 2 SOL. John Duke of Groyen and Lancaster Steward of England and Thomas Duke of Glocester Constable of England the King's Uncles complained to the King that Thomas Talbot Knight with others his Adherents conspired the death of the said Dukes as the same was confessed and well known and prayed that the Parliament might judge of the fault which Petition was just and according to the Branch of the Stat. of 25 E. 3. but the Record saith further that the King and Lords in Parliament adjudged the same fact to be High-Treason which Judgment wanting the assent of the Commons was no Declaration within the said Stat. which is attended with this restriction That if any other case supposed to be Treason should happen before any Justices the Justices should tarry without going to judgment of the Treason till the Case be shewed before the King and his Parliament consisting of Lords Spiritual and Temporal and the Commons whether it ought to be adjudged Treason or Felony QUERY IX Whether the Subjects of another Prince Confederate with the King of England can be held for the King's Enemies SOL. It was objected against the Duke of Norfolk concerning his relieving of the Scots the Queens Enemies which was proved by Letters and Banister's confession c. whereupon the Duke asked the Judges Whether the Subjects of another Prince Camb. Eliz. A. 1572. Confederate with the Queen of England were to be holden for the Queens Enemies Calelin Chief Justice answer'd that they were and that the Queen of England might make War with any Duke of France and yet in the interim keep peace with the French King And here 't is to be noted that the Judges ought not to deliver their Opinions before-hand in any criminal case that may come before them judicially In the Case of Humphrey Stafford that Arch-Traytor Hussey Chief Justice besought King H. 7. that he would not desire to know their Opinions before-hand for him for they thought it should come before them in the King's-Bench judicially and then they would do that which of right they ought which the King approv'd of Besides the nature
of their Oath requires it who are sworn that they shall well and lawfully serve our Soveraign Lord the King and his People in the Office of a Justice and that they shall do equal Law and execution of Right to all his Subjects QUERY X. Whether an Attainder of Treason may be falsified by the Plea of the Party SOL. A. 1. Mar. A Commission of Oyer and Terminer in London was directed to Sir Tho. White Lord Mayor and to divers others reciting that where Sir Robert Dudley Knight 9 Jan. 1. Mar. was Indicted of High-Treason before Thomas Due of Norfolk and fourteen other Commissioners in the County of Norfolk where in truth the Commission was directed to so many but the Indictment was taken before Eight of them only granting to them or any four of them Authority to receive the Indictment taken before fifteen Commissioners and to proceed thereupon as Special Justices of Oyer and Terminer by pretext whereof they proceeded and upon confession of the said Sir Rob Dudley gave Judgment against him In this Case it was adjudged that Sir Rob. Dudley then Earl of Leicester might falsifie the said Attainder by Plea because it was void and coram non Judice for that the latter Commissioners had not power to proceed upon an Indictment taken before Eight but before Fifteen and so void The Party is not driven to his Writ of Errour but may falsifie the Attainder by Plea shewing the special matter which proveth it void ut supra In which case the party forfeiteth neither Lands nor Goods 'T is holden by some that if a person be attainted of High-Treason by the Common Law that no Writ of Errour should be brought for the reversal of that Attainder by reason of these words in the Stat. 33 H. 8. cap. 20. And if any person or persons shall be attainted of High-Treason by the course of the Common Law c. that every such Attainder by the Common Law shall be of as good strength value force and effect as if it had been done by Authority of Parliament But the contrary hereof was resolved at a Parliament holden A. 25. Eliz. that a Writ of Errour should be maintained for the reversal of Erroneous Attainders of High-Treason by the Common Law for that former Stat. is to be intended of lawful Attainders and not where there is any Errour in the same for by that of the Queen 't is provided That no Record of Attainder of any person or persons of or for any High-Treason where the party so Attainted is or hath been executed for the same shall be c. in any wise hereafter reversed undone avoided or Impeached by any Plea or for any Errour whatsoever QUERY XI Whether torture in case of Treason or Felony may be used by our Law SOL. Sir John Fortescue Chief Justice of England who wrote in commendation of our Common Laws preferreth the same for Government before the Civil Law and particularly that all tortures were against the Common Law expresly and he proceeds to shew the inconveniencies and mischiefs thereof by fearful examples to which Learned Author I refer your Lordships Cap. 22. It is against Mag. Charta Cap. 29. which says Nullus liber homo capiatur vel Imprisonetur c. aut aliquo modo destruatur nec super eum ibimus nec super eum mittemus nisi per legale Judicium Parium suorum vel per Legem Terrae And accordingly all the Ancient Authors are against the inflicting pains and tortures upon Prisoners before or after Attainder Co. 3. Inst f. 35. but such as answer the Judgment John Holland Earl of Huntingdon was by King H. 6. created Duke of Exeter and A. 26. H. 6. the King granted to him the Office of the Constableship of the Tower of London He and William de la Poole Duke of Suffolk with some others intended to have brought in the Civil Laws and for a beginning of the same the Duke of Exeter first brought into the Tower the Rack or Brake allowed in many cases by the Civil Law and for that reason it was called the Duke of Exeter's Daughter QUERY XII Whether the King under the Great Seal may command all Process in Criminal Causes to cease SOL. We find says Coke a Discharge of further proceeding directed to the Judges of the Court c. not by way of pardoning the offence but by the King's acknowledgment under the Great Seal of the Parties Innocence with Commandment to the Judges that in the former proceedings they shall altogether surcease whereupon the Court will award that the Party shall go sine Die and that there shall be no further proceedings against him William de Melton Archbishop of York was accused in the King 's Bench coram Rege Concilio suo in Anno 3. Ed. 3. for adherency to Edmond Earl of Kent in his Treasons whereunto the Arch-Bishop pleaded Not Guilty and after two Writs of Venire Facias awarded the King directed his Writ under the Great Seal to the Judges of the King 's Bench to this effect Licet Venerabilis Pater Willielmus Archiepiscopus Ebor Stephanus London Episcopus per Diversa Brevia Nostra coram Nobis ad sectam Nostram Implacitentur de eo quod ipsi Edmundo Comiti Cantiae adhasisse debuerant quia tamen praedict Archiepiscopus Episcopus de adhaesione praedicta omnino Immunes reputamus Vobis Mandamus quod placitis praedictis coram Nobis ulterius tenend omnino supersedeatis Teste meipso c. The Award of the Court hereupon is very observable Viz. Cujus Brevis praetextu consideratum est quod praedictus Archiepiscopus eat inde sine die c. ulterius non procedatur versus eum Stephen Gravesend Pasch 4. E. 3. Rol. 5.3 Bishop of London was charged with the same offence in Parliament A. 3. E. 3. whence by Order of parliament he was referred to the King 's Bench to be tryed where he pleaded Not Guilty and after was discharg'd as the Arch-Bishop It may be thought that accepting the Pardon might be an implication of their fault and therefore it run in a new strain but no man that is well advis'd says the great Oracle of the Law will refuse God's or the King's Pardon for in the King's displeasure there is death says the Holy Writ and who knows how often he offends and consequently stands in need of it But how far this Branch of the Prerogative may be extended and what qualifications it may admit belongs not to a private man to determine QUERY XIII Whether a Person can be Attainted of High-Treason by general words SOL. Where by due course of Law a man cannot be Attainted of High-Treason unless the Law fore-judge the offence such he ought not to be Attainted by general words by Authority of Parliament as sometime hath been used but the Treason ought to be specially expressed seeing that the Court of Parliament is the Highest and most Honourable Court of Justice