against Henry late Earl of Northumberland and Tho. Bardolph late Lord Baron for certain ill deeds which they had lately committed contrary to their Allegiance At their meeting the Constable of England shewed them the Process made in the Court of Chivalry against Henry de Peircy upon the Articles of Treason committed by him and others of his Covyn In which Articles are named the Arch-Bishop of York Tho. Newberry Earl Marshal the said Earl of Northumberland the said Lord Bardolph and many others and their several Treasons are therein contained The Lords having advised therein and considered the proofs delivered their opinion to the King touching the said Earl of Northumberland and the said Lord Bardolph only and proceeded to Judgment against them Then the King caused to be demanded of the Lords Temporal Peers of the Realm what they would say touching the Act of the said late Arch-Bishop of York and of the said Earl Marshal who lately with a great multitude of people were armed and trained in the field within the Realm of England with Banners displayed c. Unto which demand the said Lords Temporal said That according to the Information to them given by the said Constable It seemeth unto them to be Treason yet notwithstanding the Lords desired that with good deliberation when they next returned to the Parliament they might speak thereof unto our Lord the King as no error might be found in their doings in time to come This was done on that day the Parliament was adjorned Here the Lords had no other Accusation against those two Peers but the Kings commandment upon view of former Process against them in the Court of Chivalry And the Lords declared their opinion touching the Archbishop of York and the Earl Marshal though their Treasons were contained in the same Process also least Error might be found in their doings hereafter But whether they thought their Error to be that the King had not commanded them first to advise thereon touching the said Archbishop and the Earl Marshal as he had done touching the others Let the Reader Judge For my part I think that would have been error Could the Lords proceed upon Process elsewhere unless the King commands them 2 H. 6. The Judgment against John Mortimer is drawn up very briefly by John Hales one of the Justices of the Kings Bench wherein he first shews that the said Sir John Mortimer was Indicted in London sitting the Parliament before the Lord Mayor of London and other Commissioners appointed by the King For that the said Sir John being committed to the Tower for suspition of Treason corrupted his keeper and broke Prison That the said Indictment was returned into Chancery Ex mandato Dom. Regis and by the Chancery brought into the Parliament before the Duke of Gloucester the Kings Protector and the Lords Temporal the King being then an Infant And the Protector being Authorized by Commission to hold the Parliament de Precepto Dom. Regis That the said Sir John Mortymer by Vertue of the Writs was brought before the said Duke and Lords and Commons That the said Commons affirmed the said Indictment to be true and desired Judgment against him as convict of Treason and Felony And lastly That he was thereupon adjudged In this is set down all the essential parts of the Lords proceedings against Mortymer The Ceremonious or formal parts thereof are omitted as who complained of or accused Mortymer to the Parliament The King or the Commons did not for then there needed no Indictment And therefore it must move for the King either before the Indictment or rather upon the Return thereof unto the House For had the Accusation been before the Indictment it had been a shorter way to Arraign him also before the Commissioners in London he being no Member nor Peer of Parliament then to return the Indictment into the Chancery and then be brought into the Parliament Here is also omitted the Conference before hand between the Lords and Commons touching this matter For it is very unlikely that the Lords did suddainly send for the Commons and then abruptly read the Information before them and they as suddainly affirm the same all these are necessarily understood That the Commons affirmed the Indictment e. It appears that the Lords cannot of themselves Judge a Common Person for an Offence for he is no Peer according to that of 4 E. 3. Numb 26. The manner of Accusation by Information Ex parte Dom. Regis is when the Commons as any other private Person accuse any man unto the Lords in general but do not declare the Offences in particular other then by the Commandment of the King Articles are drawn up against the Delinquent Ex parte Dom. Regis The Precedents are these 2 R. 2. The Constable of the Tower was commanded to bring Gomeniz and Weston whose Offences were complained of in general by the Commons that they named before the Lords in Parliament to Answer to the Articles objected against them on the behalf of the King and they were severally arrained at the Commandment of the Lords c. Eodem anno Alice Pierce being complained of by the Commons was accused and commanded to come before the Lords in Parliament to Answer to certain things objected against her on the Kings behalf And here upon Sir Richard le Scroope Chief Steward of the Kings House by Comandment of the Lords rehersed in Parliment in the presence of the said Alice a certain Ordinance c. Made in the Parliament of 50 E. 3. against her And this Rehersal being made the said Steward surmised unto the said Alice That it seemed to the Lords of the Parliament that she had incurred the pain comprised in the said Ordinance in certain points and especially in two That is to say c. By these two Precedents it appears plain enough that the Lords commanded the Articles to be drawn and exhibited though ex parte Dom. Regis for all these are said to be done by their Commandment And the practise at this day is that out of the Complaints of the Commons as of Mompesson The Lord Chancellor and the Lord Tresurer and a Committee of the Lords did draw up the Charges But they wanted the words Ex parte Dom. Regis The reason why in this Cause the Articles are Ex parte Dom. Regis seemed to be this The Commons complain but impeach not Notwithstanding the Impeachment the Lords cannot proceed neither can they Impeach any to themselves So it rests that the party is to be Impeached at the Kings Suit It may be lawful for me to examine the proceedings of the Lords in the Complaint against Mompesson and to compare them with ancient Proceedings in like Cases And they will appear to differ much And touching Mompesson the Commons did not only complain but accuse him He fled in his absence they ought to have proceeded to Judgment against him before Proclamation first made for him to appear before the
Precedents mention the King's Assent in Capital Judgments except that one against Matrevers 4 E. 3. which might be the omission of the Clerks who drew up the Roll for it is said directly afterwards in the said Bill Numb 6. That the Peers gave those Judgments in the presence of our Lord the K. and by his Assent And except that of 1 R. 2. against Weston in the last Day of the Parliament and it was 3. in the Afternoon that Day before the Lords had determined what to do in that Business so that it may be the Lords were prevented of time herein to have which they respited Execution for that the King was not informed of the manner thereof Secondly For that the Lords Appellants 11 R. 2. who had then great Forces about them were so earnest with the King for his Assent to the Judgment against Burley That the Duke of Gloucest told him as appeareth by his own Confession 21 R. 2. That if he would be King he should not intreat for Simon de Burley to save him from Death And in the end when his Majesty would not assent to their Judgment yet they wrought so that Messengers were sent unto him and brought word not before they gave Judgment against Simon and the King's Assent is mentioned in the said Judgment All which the said Lords would not have done had not the King's Assent been necessary And afterwards in the Parliament of 21 R. 2 The Lord Cobham being accused for giving Judgment without the King's Assent answered That the Messenger brought word That his Majesty had assented And yet because he did not gainsay that the King did deny his Assent the Commons immediately demanded Judgment All which seem to imply That the King's Assent is necessary in Judgments upon Capital Offences Touching the Second viz. Judgment against the King 's Will. It is all one with Judgment without the King's Assent Touching the Third viz. In the Absence of the King The Judgments of this kind are good notwithstanding so as the King doth assent as that of Simon de Burley 11 R. 2. Touching the Absence of many of the Peers That is to say of many of them and against their will This cannot invalid their Judgment so as the greater number of the Lords be then present accompting the Proxies of the absent Lords for it is not material whether some Lords do absent themselves or disassent The chiefest Matter is the Assent of the Lords who are present either in Person or by Proxy The others are to Answer for their Absence without a just Cause shewn or a proper Assent § 2. In Judgment on Misdemeanors the King's Assent is not required 50 E. 3. The Lords judged divers Commoners for Misdemeanors and the King's Assent not mentioned as Richard Lyons William Lord Latymer a Privy Councellor John Lord Nevil a Privy Councellor Jo. Peecher and others The King was then sick at his Mannor of Eltham and on the last day of the Parliament the Lords Prelates and Commons came before him there and he heard the Petitioners and their Answers for most part read and also Judgment given on the Privy Councellors and others dont ils se leyron franchement le respons de mesme nostre Seignior le Roy Numb 15. Which shews that the King had not assented to them 7 R. 2. The Bishop of Norwich was accused of Misdemeanors and judged in 10 R. 2. The Lord Chancellor Mich. de la Poole was judged by the Lords for Misdemeanors and Speed fol. saith That the King was much displeased thereat for it appeareth he gave not his consent And it was one of the Questions demanded of Tresilian and others 11 R. 2. Whether the Judgment were erroneous or not and resolved to be erroneous yet it was not objected against any the Lords Appellors that the Judges proceeded without the King's Assent §. 3. The King's Presence in Parliament In 4 E. 3. The King commanded the Lords to do right and lawful Judgment on Mortimer The which Earls Barons and Peers having examined the Articles came again before the King and said c. Ibidem The King commanded them to give Judgment on Simon de Bereford The which Earls Barons and Peers came again before the King and said c. And so the King was present at their Judgment but not at their Consultations 10 R. 2. The King was present when the Commons accused the Lord Chaneellor William de la Poole of Misdemeanors but he was not present at his Trial for he demanded if he ought to answer sans presence de dit Roy being Chancellor and in the end he answered notwithstanding 21 R. 2. In the cruel Parliament of the Lords Appellants the King was present at the Parlies Non constat whether he was present at the Consultation of the Lords 5 H. 4. The King was present when the Earl of Northumberland was to be tried upon his own Petition and so were the Commons And the King delivered the Petition to the Judges for their Opinion but the Lords claimed their Right But this was on the Wednesday and the Friday following the King and Commons met there again and the Chancellor rehearseth First What was done the first Day and the Lords having had competent deliberation on the said Petition and having heard and considered the Statute They adjudged c. It is plain the King was not present at this Consultation of the Lords though at their Judgment 7 H. 4. He commanded the Lords to advise what manner of Process shall be made and what Judgment shall be rendred against Henry de Peircy Earl of Northumberland and a Week after the Lords declared their Opinion to the King And it appeareth in that Roll very clearly that all Evidences and Examinations were shewn and taken by the Lords in the absence of the King and their Advice also agreed on in his Absence but the Judgment reversed in his Presence To conclude The King may be present if he please at the Parties Answer in Capital Causes and at the Judgments given prout c. But he was never present at other times of Proceeding against the Delinquent nor at any Answer for Misdemeanors for ought I have yet seen §. 4. The Presence of the Lords Spiritual In Cases of Misdemeanors the Lords Spiritual have ever been present but never in Offences Capital This is so generally-received of all men that it is not worth the Labour to prove it yet I will vouch the Precedents For it may be out of one or other of them somewhat may occur worthy the Observation In Misdemeanors In 1 R. 2. Alice Peirce was brought before the Prelates and Lords in Parliament to Answer and the Prelates and Lords did ordain 42 E. 3. Numb 20 c. John at Lee was put to Reason before the Prelates Lords Dukes Earls Barons and some of the Commons 7 R. 2. Jo. Cavendish accused the Lord Chancellor of Bribery before the Prelates and Lords in
Parliament Numb 9. Whereupon the Prelates and Clergy being severally examined deputed for them all Tho. de Piercy But in ancient times in libro Mailicess Numb 9. which hath written somewhat largely of this Parliament It is said The Pardon 's granted to the Earls of Arundel were first repealed by the Assent of the Prelates for which he blames them much saying Dederunt ergo locum Praelati Judicio Sanguinis in hoc facto ita quod dubitatur à pluribus si incurrunt irregularitatem pro negotio memorato unde contigit quod propter istud minus peccatum consequentur nam exactum est ab iis vellent nollent ut Laicam Personam constituerent ad Judicium Sanguinis dandum in dicto Parliamento si necesse foret occasio emersisset I have perused all Judgments and Ordinances in Parliament and do not yet find one whereto any Exceptions were taken for the Absence of the Prelates and Clergy I find an Exception to the Judgment of the Exile in 15 E. 2. for that it was made without the Assent of the Prelates who were present and protested in writing against it And one of the Errors whereupon it was repealed is for that it was made without the Assent of them who were Peers of the Realm in Parliament But this Repeal was per duress force c. prout 1 E. 3. c. 2. So as this cannot be alledged for a Legal Precedent 5 H. 4. The Earl of Northumberland came before the King the Lords and Commons in Parliament The Lords made Protestation that the Judgment belonged to them only c. The Petition being read before the King and the said Lords as Peers of the Parliament unto whom such Judgments do of Right belong considering c. adjudged that it was neither Treason nor Felony c. Note That all this Parliament the Bishop of was Chancellor and he as Chancellor delivered the Opinion of the Lords when they had acquitted the said Earl of Treason Whereby it seems that He and the other Bishops were present at the Trial of Life and Death wherefore though the Record doth here say the Lords indefinitely we must understand the Lords Temporal only especially since they claimed the said Judgment to belong to them In 4 E. 3. Judgment was given by the Earls Barons and Peers as Judges in Parliament in point of Treason where the Prelates are not named and therefore understood of the Temporal Lords only This will be explained by the next of 7 H. 4. Rot. Process coram Domino Rege c. The King commanded the Lords Temporal Peers of this Realm to advise what Process to make and what Judgment to render against the Earl of Northumberland and the Lord Bardolph The Lords advised thereupon and reported their Opinions to the King The said Lords Peers of the Realm by Assent of the King Ordain That Proclamation should be made for the said Earl and Lord Bardolph to appear or else to be Convicted by Award of the Peers in Parliament The King did farther demand the Opinion of the said Lords Temporal touching the Archbishop of York unto whom the said Lords Temporal said c. The Commons prayed the King that they might have Cognizance c. Whereupon by Advice of the Lords Temporal the Returns of the former Proclamations were made at the Parliament-door for the said Earl and Lord to appear By Advice of the said Lords Temporal the Returns of the former Proclamations were examined the said Lords Temporal considered of the Errors therein By the said Lords Temporal with the Assent of the King by their Authority New Proclamation is granted the Return whereof is read in full Parliament before the King and the said Lords Temporal Whereupon the said Lords Temporal then being in the said Parliament by Advice and Assent of our Lord the King by their Authority in Parliament Awarded the said c. Convict of Treason Here all was done by the Lords Temporal from the first beginning of the Trial until the Judgment and yet the Judgment is said to be in Full Parliament notwithstanding the Spiritual Lords are not once mentioned nor intended to be present at any time whilst the Matter of Treason was handled §. 5. Touching the Presence of the Commons in Cases Capital I observe the Presence of the Commons to be necessary at the Parties Answer and Judgment in Cases Capital Now one Reason for the King's Assent and the Commons presence in such Judgments may be this Both King and People are to be satisfied for the death of the Subject therefore all Trials for Life and Death are publick in the full Assembly of the Court And how can it be said in Full Parliament when the Commons one of the States are absent For this purpose the Court of Requests called Camera Alba was prepared for such Trials where both Lords and Commons might meet more conveniently yet though the Commons were present at such times they had no Voice there But at their Return to their own Assembly they considered among themselves if the Proceedings were Legal and might come again and shew it and require a Rehearsing of that Cause as they did at the Judgment of the Duke of Clarence 18 E. 3. Nor are the Commons to be present when the Lords do consider of the Delinquent's Answer and the Proofs and do determine of their Judgment The Precedents are these 10 R. 2. Gomeniz and Weston were brought before the Lords and Commons seaux a la blanch Chambre and Answered on Friday 27 Novemb. and there they were delivered to the Constable of the Tower who was commanded to bring them again the next Morning In the mean time the Earls Barons and Baronets assembled and advised from the time that the said Answers were given in Parliament on Friday until part of Saturday to the hour of Three of the things touching the Answer aforesaid and then the Prisoners were brought in to the Parliament 10 R. 2. Rot. de Pardonatione Haxei 7 Febr. Anno praedicto Praedictus Tho. Haxei coram Nobis omnibus Dominis Parliamenti Nostri existentibus in Alba Camera adductus fuit Billa praedicta coram praefato Thoma ibidem per Praeceptum Nostrum lecta fuit Quaesitum fuit per Charissimum Avunculum Nostrum Ducem Aquitain Lanc. Seneschallum Angliae à praefato Thoma si ipse dictum praefatum Communibus tradidit 5 H. 4. The Earl of Northumberland was brought to his Trial on Wednesday Then the Commons were present but I do not find that they were present with the Lords between Wednesday and Friday when the Lords advised on the Earl's Petition This Record mentions not where the Assembly was Numb 7. H. 4. Quint. of his Reign After the Lords had Awarded Proclamation against the Earl of Northumberland and the Lord Bardolph to appear at a Day or Judgment to be given The Commons not being acquainted therewith they came and prayed the King they might
private persons where the party might have his Remedy at the Common Law prout Botheil Cooper Anno 50 E. 3. accused William Ellis for extorting 17 Nobles from certain Merchants at Pruse and also for their wrong Imprisonment by the false Suggestion of William Ellis to the King And the Lords referred the taking of the 17 Nobles to the Common Law But upon the Examination of the Imprisonment it was proved That Ellis did write his Letters to one of the King's Bed-Chamber falsly suggesting against Botheil and Cooper which Letters were shewn to the King his Majesty then commanded them to be Committed This the Lords expounded to be false Suggestion in Ellis The King himself judged him for the same Had that Point been cleared in the Statute of False Suggestions haply the Lords would have referred it to its proper place So also Anno 5. E. 2. The Lords referred the Accusation of Clingdon to be Tried at the Common Law Secondly Touching the Demand That verily belongs to the Party at whose Suit it is To the King's Councel for the King if the Articles were de part le Roy and to the Commons against an Impeached Delinquent By whom Judgment ought to be Rendred It appeareth plainly by many Precedents That all Iudgments for Life and Death are to be rendred by the Steward of England or by the Steward of the King's House and this is the Reason why at every Parliament the King makes a Lord Steward of his House though he hath none out of Parliament And at such Arraignment the Steward is to sit in the Chancellor's place And all Judgments for Misdemeanors by the Chancellor or by him who supplies the Chancellor's place CHAP. VI. The Precedents for Life and Death ANno 10 R. 2. John Lord Gome 〈…〉 and William Weston were brought by the Constable of the Tower before the Lords in Full Parliament sitting in the White Chamber where they were severally Arraigned at the Commandment of the Lords by Richard le Scroop Chief Steward of the House of our Lord the King in manner following Here the Lords commanded the Arraignment of certain Earls Peers of the Realm They did not appoint the Steward to do it It belonged to his Office Anno 20 R. 2. Thomas Haxey was Arraigned of High Treason before the King the Lords and Commons in full Parliament in Alba Camera by the Duke of Lancaster Seneschallum Angliae and the Judgment rendred by him Anno 21 R. 2. All those Judgments on the Appeal were rendred per Seneschallum Angliae The Records of E. 3. and H. 4. are silent herein by whom the Judgment was rendred It may be Objected That Anno 5. H. 4. The Lord Chancellor kept his place at the Trial of the Earl of Northumberland because he did deliver the Opinion of the Lords That could not properly be called a Trial for it was upon the Earl's own Petition And if it were resolved whether it were Felony or Treason it should have been done by the Steward sitting in the Chancellor's place Neither doth it appear by the Record that the Chancellor kept his place though he afterwards delivered the Opinion of the Lords So likewise Anno 1 Car. 1. Febr. 6. The Lord Keeper kept his place when the Articles of Treason were read against the Earl of Bristol but he did not Arraign him Then they were read and his Answer heard by the appointment of the House and some Witnesses examined also to the end they might understand the true Nature of his Offence and then to declare how and in what manner to proceed against him for the same The Spiritualty did not deliver their Opinion therein To conclude All Records that are which mention by whom the Delinquents in Cases Capital were Arraigned do say that it was by the Steward of England or of the King's House And in remembrance of this a Lord Steward is appointed at every Trial of a Peer of Parliament Touching Judgment rendred by the Chancellor in Cases of Misdemeanors it is needless to recite any Precedents only this I will say The Chancellor never gave Judgment on Life and Death and the Steward never on Misdemeanors And though there be Precedents of Judgments given by the Steward of England in Parliament prout 20 21 R. 2. yet I have seen none of the Judgments on the Peers rendred by the Steward of the King's House And the reason may be for that there was anciently a Seneschallus Angliae Quaere tamen whether the Steward of the King's House being a Peer may give Judgment on a Peer or not I think he may if there be no Steward of the House constantly made every Parliament though but during the Sessions The last Considerable Thing in Judicature is CHAP. VII The Execution of the Judgment ANd first in Capital Offences I have seen but two Precedents thereof in the Parliament-Rolls The First is 4 E. 3. Which begun on Monday after the Feast of S. Katherine There were long Articles exhibited against Mortimer for Treason and he was adjudged to die for Treason and thereupon saith the Record Commandment was given to the Earl Marshal to Execute the Judgment and also to the Mayor Aldermen and Sheriffs of the City of London and to the Constable of the Tower and likewise to them who had the Guard of the said Mortimer to be aiding to the said Earl Marshal to do the said Execution The which Execution was done and performed upon Thursday next after the first Day of the Parliament which was the 29th Day of November Ibidem Num. 2. Judgment was given on Simon de Bereford to be Drawn and Hang'd And thereupon it was Commanded that the Marshal should do Execution near the Tower of London And the said Earl of Arundel was Beheaded ou the same Day The Earl of Nottingham one of the Lords Appellants was Lord Marshall at that time and therefore his Deputy did Execution Item The Earl of Warwick being adjudged to die the King did pardon the Execution and granted him his Life viz. That he should remain in perpetual prison out of England in the Isle of Man c. And that he be at Sea on his passage before the end of one Month. And thereupon he was delivered to Monsieur William le Scroope and to Monsieur Stephen his Brother to bring him safely to the said Isle of Man c. The Earl Marshal was Commanded to Execution on a Peer and the Marshal on a Commoner The Command no doubt issued from the Lords with the King's Assent herein Thus much touching Execution quoad Mortem In Misdemeanors the greatest Corporal punishment hath been Imprisonment I find no other in Ancient Parliament But who was the Officer to carry the Delinquent to prison is not Recorded save he to whose Custody he was Committed prout 42. E. 3. John at Lee was Committed to the Tower Et dit fuit al Monsieur Alley de Buxhill Constable de la Tower que il
JOHN SELDEN OF THE JUDICATURE IN Parliaments A Posthumous TREATISE WHEREIN The Controversies and Precedents belonging to that Title are Methodically handled LONDON Printed for Joseph Lawson Bookseller in the Bail of Lincoln And Sold by the Booksellers in London A Scheme of the Method and Contents CHAP. I. PEers to render Judgment of Peers pag. 1 Qu. Whether the Spiritual Lords de jure are triable by their Peers p. 4 Touching the Nature of the Offences triable in this High Court 6 CHAP. II. In what Cases Judicature belongs to the Parliament 8 Of Judgment on Delinquents 10 § I. 1. Their Accusation by the Commons 11 Four manner of Accusations in Parl. ib. Precedents of their Complaints 1. By Petition 12 2. By Demand 16 3. By Impeachment 17 § II. 2. Accusation ex parte Domini Regis p. 33 Some Delinquents accused in Parliament upon Common Fame without proof of Witnesses 37 The Judgment Repealed 38 No Peer can be Indicted in Parliament 39 He may be Indicted out of Parliament and proceeded against in the next Parliament upon the said Indictment 40 § III. Qu. Whether S. R. Ferrars 4 R. 2. was Legally brought to his Answer in Parliam by Commandment of the D. of L. 44. Whether he being no Peer nor Baron could be Legally Arraigned in Parliament by Information ex parte Regis Ib. Question Resolved 45 How the Earl of Bristol's Cause could be heard in the House of Lords notwithstanding 35 H. 8. 46 The Usage in such Cases and Precedents 48 Whether in a Trial before Lords and Commons the Commons are to Sit with their Speaker 54 § IV. Accusation ex Mandato Domini Regis ib. The Earl of Northumberland's Case 5 H. 4. ib. The Lords Impeach not any to themselves because they are Judges 63 The Manner of proceeding against a Delinquent that absents ib. § V. Of Accusation by Complaint of private persons 66 The Fishmongers Complaint against the Lord Chancellor 7 R. 2. 72 The Lord Chancellor his Defence 74 Of the Complaint against Bishop Williams Lord Keeper 80 The History of the Appeal 11 R. 2. 81 The Lords proceed not against a Commoner but upon the Complaint of the House of Commons 84 Appeals abolished 1 H 4. c. 14. 87. CHAP. III. The Parties Answer 89 The Party accused to be brought to his Answer 95 An Answer required from the D. of Gloucester to certain Accusations though he were dead and Judgment given upon him 91 Another Delinquent found guilty long after he was dead 95 In what Cases the Party is to answer as a Freeman in what as a Prisoner 97 Things to be considered in the Answer 97 Variation from the Ancient Course 100 Touching Council allowed him 102 § 2. When Council shall be allowed him and when not ib. In Misdemeanors the Party may have Council to Answer 103 But the Earl of Middlesex was denied it 21 Jac. 103 The Parliament hath compelled a present Answer in Misdemeanors and without Council 107 The Mayor c. accused by the Scholars of Cambridge ib. § 3. The Replication 109 Where the Articles against the Delinquent are ex parte Regis there the Commons do not reply nor demand Judgment ib. Impeachment of the Lord Latimer 111 William Ellis Impeached 114 Lord Nevile Impeached by the Commons ib. CHAP. IV. The Proof By Examination of Witnesses 120 Witnesses produced by the Commons ib. A Committee for Trial of Alice Pierce 123 A Jurie in Parliament for Misdemeanors 125 G. D. of Clarence Arraigned 127 CHAP. V. The Judgment 132 § 1. It belongeth to the Lords only 133 The Commons have no Right to it ib. § 2. In what Cases the King's Assent is necessarily required 136 Necessary in Capital Judgment 143 In Judgment on Misdemeanors the King's Assent is not required 144 § 3. The King's Presence in Parliament 39 § 4. The Presence of the Lords Spir. ib. In Cases of Misdemeanor aff ib. Capital neg ib. The Protestation of the Bishops for ever 150 Whether they can be present not Vote 152 A Bishop being Lord Chancellor was present at the giving Sentence in Case of Treason 156 § 5. Of the Presence of the Commons in Cases Capital 158 The Precedents 149 Their Presence not necessary unless when they impeach 160 Whether they Sit if they are present 161 Of the Presence of the Judges 162 § 6. The manner how the Lords resolve on their Judgment 167 Whether it be ultra Legem 168 Judgments for satisfaction 173 References to the Common Law 175 By whom to be demanded 176 By whom to be rendred ib. CHAP. VI. The Precedents for Life and Death 178 CHAP. VII The Execution of the Judgment 182 In Capital Offences In Misdemeanors CHAP. VIII The Recovery of Damages or Restitution to the Party aggrieved 187. JUDICATURE IN Parliament CHAP. I. Peers to render Judgment on Peers THE Execution of all our Laws hath been long since distributed by Parliament out of inferiour Courts in such sort as the Subjects were directed where to complain and the Justice how to redress wrongs and punish offences And this may be the reason of the Judges opinion in Thorps Case 31. Hen. 6. Num. 37. That Actions at Common-Law are not determined in this High Court of Parliament yet complaints have ever been received in Parliaments as well of private wrongs as publick offences And according to the quality of the Person and nature of the offence they have been retained or referred to the Common-Law Touching the quality of the Person the Lords of the Parliament did not anciently try any Offenders how great soever the offence was unless he were their Peer As by that of 4 E. 3. N. 2. where when the King commanded the Lords to give Judgment on Simon de Bereford and divers others also who were not their Peers for the murther of E. 2. and the destruction of the Earl of Kent Son of E. the first A proviso and agreement was made and recorded in these words Et est assensu accord c. And it is assented and accorded by our Lord the King and all the Grandees in full Parliament That albeit the Peers as Judges of the Parliament have took upon them and rendred the said Judgment c. That yet the said Peers who now are or shall be in time to come be not bound or charged to render Judgments upon others than Peers Nor that the Peers of the Land have power to do this but thereof ever to be discharged and acquitted And that the aforesaid Judgment rendred be not drawn to example or consequence in time to come whereby the said Peers shall do contrary to the Laws of the Land if the like Case happen which God forbid 4 E 3. N. 6. This Proviso and agreement was made by the Lords and Commons and it had these respects First to satisfy the Commons that the Lords by these Judgments intended not to alter the course of the Common-Law and therefore they disclaimed that they had power
were also recorded and read in Parliament Numb 17. 18 19 20. but the Information exhibited against him whereupon he was arraigned is not recorded It is only said He was arraigned Ex parte Domini Regis §. 3. Here might be two Questions First Whether was this Sir Ra. Ferrers legally brought to his Answer in Parliament by the commandment of the Duke of Lancaster and those other Lords who were then with him in the Marches of Scotland Secondly Whether he being no Baron or Lord of Parliament for he never had Summons might be legally arraigned in Parliament for life and death upon an Information Ex parte Dom. Regis which is contrary to the Law as was resolved in Parliament 4 E. 3. Numb 2. and 6. For resolutions of these doubts I am of opinion that the Duke of Lancaster might send Sir Ra. Ferrers to the Parliament because it was then sitting and might examine the Treason whereof he was suspected though they could not proceed to Judgment against him without the Commons he being a Commoner and not their Peer And it fell out in the Examination of this business they found the Letters to be counterfeited and so he was acquitted thereof And so far their proceeding was not illegal For the Parliament may entertain and examine any Cause and then direct the Judgment thereof to its own proper Court if it belong not unto them as they did in 5 R. 2. Numb 43. 44. Here Sir William Cogan Knight being accused by Sir Richard Clurdon of matter sounding to Treason After the Lords had heard the Cause they remitted both the parties to the Common-Law And in this Case of Sir Ra. Ferrers if they had found he had been guilty they might have proceeded to Judgment against him according to the Precedent of Sir Tho. Mortimer in 2 H. 4. who was indicted in London and the Indictment returned into the Chancery and thence brought into the Parliament where the Commons affirmed the same and prayed Judgment against him Anno 2 H. 4. The Lords Temporal gave Judgment on one Tho. Holland Earl of Kent John Holland late Earl of Huntington John Mountague late Earl of Salisbury the late Lord de Spencer and Ralph Lumley who were beheaded in a War they had Trayterously raised against the King This Judgment is entred but not the Information Ex parte Dom. Regis which is necessary to be understood for had it been omitted his Son Thomas would without doubt have assigned that for one of the errors in his Petition to reverse the said Judgment 2 H. 5. apud Leicester which he did not though he assigned for an Error That his Father was put to death without an accusation In the Parliament begun at Westminster Feb. 6. 1 Car. 1. and continued until June 25. Anno 2. ejusdem Regis John Earl of Bristol was charged with High Treason in this manner viz. Primo die Maii. The said Earl of Bristol being brought to the Bar and kneeling till the Lord Keeper wished him to stand up The Lord Keeper told him he was sent for to hear his Charge of High Treason And Mr. Attorney General being at the Clerks Table began to open his Charge but being interrupted by the said Earl who with much importunity exhibited Articles against the Duke of Buckingham then present which as he said he conceived to be Treason and required of the Lords that his Testimony against the Duke and the Lord Conway against whom he then also delivered Articles might not be made invalid no more then the Charge against himself which he affirmes was procured by the said Duke yet notwithstanding the head of the Kings Charge were opened against him by Mr. Attorney and then the said Articles against the said Duke and against the Lord Conway were read And it was ordered by the Lords of the Parliament that the Kings Charge against the said Earl should be first heard and afterwards the Earls Charge against the Duke c. But yet so as the Earls Testimony against the said Duke be not prevented prejudiced hindred or impeached Secundo die Maii. The House was moved that the Earl of Buckingham might be indicted according to the Stat. of 35 H. 8. the Treasons committed being beyond the Seas as was objected and that being certified to both Houses they to proceed against him by Tryal of Peers But their Lordships did not resolve on the manner of proceeding Then the Houses were moved that Mr. Attorney might provide an Indictment against the said Earl to be returned to the House on Saturday next Maii 6. And if he doubt of the Form to confer thereof with the Judges And if any great difficulty appear to resort to their Lordships and acquaint them with it And it was ordered that Mr. Attorney proceed with the preparation but the Houses not to be concluded at their next meeting on Thursday And the Sub-Committee for Priviledges c. to search for Precedents in the mean time Die Jovis Maii 4. The Sub-Committee for Priviledges reported one onely President viz. the Tryal of the Earl of Northumberland 5 H. 4. which the Clark read unto them out of the Parliament Roll of that year Whereupon after long debate It was ordered first that Mr. Attorney prepare the heads of the Charge against the Earl of Bristol and to bring them in on Saturday next Secondly The Earl then to receive his Charge at the Bar. Thirdly That when the Earl hath heard his Charge the Lords will determine when he shall Answer But he is not to be inhibited if he will Answer presently Fourthly The Cause of the Earl of Bristol is to be retained wholly in this House After the Earls Charge is brought in and his Answer then their Lordships to proceed to hear Mr. Attornies proofs amongst themselves and then to put the Cause into a way of Proceeding in this House Die Sabati Maii 6. The Lord Keeper shewed how Mr. Atturney desired that in regard the House hath already heard the nature of the crimes objected against the said Earl of Bristol That the Clark of the Crown in the Kings Bench may attend the reading of the Charge here according to a Precedent of former times which was denyed in regard the Clark of the Crown in the Kings bench is no Minister of this Court And also for that it was ordered May 4. that this Cause was wholly to be retained within this House The said Order being read the Earl was brought to the Bar and the Lord Keeper commanded Mr. Attorney to read the Charge against him who read the same out of a Parchment ingrossed in Court-hand and signed by himself Ro. Heath It containeth diverse Articles of High Treason and other great Enormities Crimes Offences and contempts committed by the said Earl c. prout postea Thus much touching the Charge against the said Earl by Information in the Kings behalf A Question was demanded of me and others in private the last Parliament
tell openly before them the full Truth saith clearing the Lord Nevil but afterwards he confessed against him He was examined in presence of two of the House of Commons Many Complaints were made against Richard Love and William Ellis in the Parliament and a Commission sent to enquire of the behaving themselves in their Offices 1 R. 2. Alice Peirce Not Guilty and that she would prove by Testimony of the late King's Houshold whom she named The Offence being for procuring E. 3. privately to revoke an Ordination of his Councel The Lords gave her Day and in the mean time named a Committee to examine Witnesses The Committee were the Duke of Lancaster Earls of Arundel Cambridge Northampton and of March And divers Witnesses who are named were sworn upon the Holy Evangelists and diligently examined upon the Articles objected against her The Lord Beauchamp was sworn and examined and the Duke of Lancaster being one of the Committe was diligently examined before the rest of the said Committee but not sworn ad testificandum Earls and Dukes are not sworn A Jury of the Houshold was impannelled for her Trial before the said Committee The Order made by the Lords for the Examination and Trial. Per l'assent Prelat des Seigneurs du dit Parlement ordeint fuit que testes Articles serounttrious per testimonies per enquest d'eux que seront de Hostel de dit Appeale que le verite purroit mieux estre conus By vertue of this Order the said Committee did take the Examination of the Witnesses and after their Examinations it follows thus Et nient minus seroit venire devant le Duc les dits Commissionaries Monsieur K. B. c. And so names eight Knights and nine Esquires queux fuerint jures adire le verite si le dit Alice fuit culpable de les Articles avant dits ou nemy Note This is the only Jury I find Recorded for Misdemeanors in Parliament I make no doubt but if the Delinquent doth put himself upon the Trial of his Country That a Jury ought to be impannelled therefore But if the Commons impeach any man they are in loco proprio and there no Jury ought to be only Witnesses are to be examined in their Presence or they to have Copies thereof And the Judgment not to be given until the Commons demand it For Proof that the Witnesses ought to be examined in their Presence vide 50 E. 3. The Impeachment of the Lord Nevile where Richard Love was examin'd in presence of two Knights of the House of Commons who contraried his Testimony Numb 44. The Proof that a Delinquent may put himself super Patriam vide 4 E. 3. Where the Lord Berkley who waved his Peerage was tried by a Jury of Gloucestershire and Warwickshire for that he was Arraigned for the Murder of E. 2. at Berkley-Castle in Com. Glouc. And he answered That he was sick at that time at Bewdley in Com. Wigorn. But he was Arraigned upon an Information ex parte Dom. Regis and not upon the Impeachment of the Commons for then they had been Patria sua And as the Party may put himself super Patriam so he may demand Battel But not when he is accused ex parte Domini Regis prout Clarence Anno 18 E. 4. Nor when he is accused by the Commons prout Brembre 11 R. 2. When the Earl of Arundel was brought to answer the Appeals the Lords Appellants threw down their Gloves by way of a Challenge The Earl answered Si essem liber non resurgeram Note That the Commons had accused them also Vide a Herald Parl. lib. Mayleress And thereupon it was testified openly in Parliament That our Lord the King had expresly said that day before the same Lord then present in Parliament That he knew not how nor in what manner the said Richard was come into such an Office about him and which is more he did not know him to be his Officer Anno 21 R. 2. The Lord Cobham being brought to his Answer for procuring a Commission to himself and others in derogation of the King's Prerogative 11 R. 2. and for executing the said Commission He denied the procuring thereof and that he would not have used the said Commission without the King's Commandment and that he told the King so much and that the King commanded him not to intermeddle therein Whereunto our Lord the King answered and said That he was in such Governance at that time that he could not otherwise say because of them that were then about him And that the Lord Cobham knew well that the said Commission was made at his Will The which thing Jo. de Cobham did not gainsay at his Trial and so Judgment passed on him for the same and he adjudged a Traytor Et qui non vult Anno 18 E. 4. George Duke of Clarence was Arraigned in Full Parliament There is no mention thereof in the Roll but in a Manuscript of that time written by a Frier of Croyland Tam testis est vera disceptatio ea habita inter duos tantae humanitatis Germanos Nam nemo arguit contra Ducem nisi Rex nemo respondet Regi nisi Dux Introducti autem erant nonnulli de quibus à multis valde dubitatur an Accusatorum an Testium officiis sunt functi utraque enim officia in eadem causa eisdem personis non congruunt Delevit enim object a Dux ille per Justificationem asseruit si exaudiri possit manuali defensione teneri causam suam Quid multis numeror Parliament les reputantes audit as Informationes sufficere formarunt in eam sententiam damnationis quae ab Henrico Duce Buck. pro tempore noviter creato Anglorum Seneschallo prolata est postea dilata est executio quo ad usque Prolocutor Communitatis in superiorem Cameram cum sociis suis adveniens novam ejus conficiendae rei requisitionem fecerat consequenter infra paucos dies factum est id qualecunque genus Supplicii secreti infra Turrim London utinam sine malo Anno Dom. 1418. Regni vero Regis E. 4. 18. per Anonimum libris Cotton Here let us examine for what illegal proceedings the Commons desired to have the Cause tried again The Author saith Nemo arguit contra Ducem nisi Rex This the Commons held to be against Law That the King himself should enforce either Article or Testimony against a Delinquent in a Capital Cause For it is inconvenient That he who hath the Forfeiture of Life Lands and Goods shall be Accuser Witness or Judge The Commons were present at this Trial and considering the Inconveniences thereof they returned and made the Request ut supra Primo Car. 1. In the Parliament of 6 Febr. John Earl of Bristol was accused by the King's Attorney of Treason beyond the Seas 8 May 1626. The said Earl petitioned the Lords That seeing several points of that Charge are grounded upon private
Conferences wherein his Majesty by Testimony becometh a Witness and in case the Earl should be convicted his Commission cometh to the Crown c. he desired their Lordships to put his Majesty in mind thereof for the declining his Accusation and Testimony 9 Maij These Questions were proposed to the Judges 1. Whether in Treason or Felony the King's Testimony is to be admitted or not 2. Whether Words spoken to the Prince who afterwards is King make any alteration in the Case And the Judges were to deliver their Opinion therein on the 13th Day of the said Month of May. And on Saturday Morning being the said 13th Day the Judges were desired to deliver their Opinions The Lord Chief Justice said They appointed to meet and to consider thereof and Mr. Attorney desired to know the time of their Meeting and before that time he brought them a Message from the King viz. That his Majesty was so sensible of his Honour that he would not suffer the Right of his Crown which may justly be preserved to be dampnified in his time That they might deliver their opinion in any particular Questions concerning the Earl of Bristol but not in the general Questions whereof his Majesty could not discern the consequence which might happen to rhe prejudice of the Crown Every particular Case varying according to the circumstances 4 E. 3. The Articles were read against Roger Mortimer and it followeth thus Wherefore our Lord the King doth charge our Earls and Barons Peers of this Realm That forasmuch as these touch him principally and all the People of this Realm That you do unto the said Roger Mortimer right and lawful Judgment such as appertaineth to such an one to have who of all the faults abovesaid is very guilty as he believeth And for that the said things are notorious and known to be true unto you and to all the People of the Realm This was all the Proof produced against Roger Mortimer The Lords hereupon judged him But afterwards Anno 28 E. 3. Numb 10. they reversed it as erroneous so that although the King's Testimony confirmed by the common Fame was 4 E. 3. received against Roger Mortimer yet it was afterwards adjudged Nul Accusament in the 28th of the said King E. 3. In that Parliament of 18 Jac. divers Witnesses were examined in open House in the Causes of Mompesson and the Lord Chancellor upon Interrogatories agreed on beforehand and divers at a Committee And it was resolved That none might be examined upon any thing that might accuse Whereupon the Earl of Southampton one of the said Committee signified That a Scruple did arise Whether Sir Ralph Horsey should be examined what Bribe he gave to the Lord Chancellor and upon the Vote it was agreed he should dissentiente Comite Dorset Eodem Anno The Lords did find that the Testimony of divers of the House of Commons was necessary touching the Complaint against Mompesson and therefore sent a Message to this effect The House of Commons before their Complaint exhibited against the Lord Cobham and Doctor Feild for a Bribe concerning Egerton's Case 18 Jac. examined one Davenport but not upon Oath The Lords when they had examined Davenport found that the Case was not so foul as he related it unto the Commons and therefore sent his Examination again unto them and then punished him for his false Relation CHAP. V. The Judgment FIrst Unto whom the Judgment belongeth and the King's Assent and of the Presence of the Spiritual Lords the Commons and the Judges Secondly The Judgment it self and by whom it was demanded and by whom rendred In making of our Antient Laws the Commons did Petere the Lords Assentire and the King Concludere So in Judgments on Delinquents in Parliament the Commons might accusare petere Judicium the King assentire and the Lords only did judicare §. 1. That the Judgment belongeth only to the Lords appeareth by all the old Records that I have seen prout 4 E. 3. against Mortymer The Earls Barons and Peers did Award and Judge by assent of the King c. 7 H. 4. In the Case of the Earl of Northumberland Protestation was made by the Lords That the Judgment belonged unto them only For the clearing of this Point That the Judgment belongeth to the Lords only vide the Protestation of the Commons 1 H. 7. which excludes the Commons from any Right thereunto viz. On Monday Novemb. 3. The Commons made their Protestation in manner as they did in the beginning of this Parliament and then further declared to the King That no Record in Parliament be made against the Commons That they are or shall be Parties to any Judgment given or hereafter to be given in Parliament Unto which it was then answered by the Archbishop of Canterbury by Command of the King That the Commons are Petitioners and not Demanders and that the King and the Lords have ever had and of Right shall have the Judgment in Parliament in manner as the Commons themselves have declared saving in Statutes to be made and in Grants of Subsidies and the like though to be done for the common profit of the Realm the King will have especially their Advice and Assent And that this Order be held and kept at all times to come This excludes the Commons from all Right to Judgment But whereas it faith the Judgments in Parliament belong only to the King and Lords That is to be understood touching the King's Assent only as apppeareth by the Replication of the Parliament in this Point in 2. H. 5. which was thus In the Parliament at Leicester 2 H. 5. Numb 11. Tho. Earl of Salisbury Petitioneth to reverse a Judgment in Parliament against John Earl of Salisbury his Father in 2 H. 4. and one of the Errors assigned was for that the Judgment was not given by the King but by the Lords Temporal only whereupon the Earls of the Parliament at the King's Commandment gave Copies of the said Judgment of 2 H. 4. and of the said Errors assigned unto the Kings Serjeants at Law then present Ad sequentem solutionem Juris Regni in hac parte avisarentur Super quod Servientes ad Legem crastino die Domino Regi ac Dominis Spiritualibus Temporalibus praedictis hoc in Parliamento petierunt scrutinium pro Domino Rege in hac parte Quibus dictum erat ex parte Domini Regis Quod ipsi procederent ulterius absque aliquo scrutinio habendo quoad declarationem judicium super supradicta c. And afterwards Day was given at the next Parliament which was held at Westminster eodem Anno 2 H. 5. In which Parliament the said Judgment of 2 H. 4. being examined and discussed at full videbatur tam dicto Domino nostro Regi quam etiam Dominis suis antedictis c. quod idem Judicium Declaratio praedicta versus eundem Johannem c. sunt fuerunt bona legalia
Declaratio Judicium Per quod cousider atum fuit in praesenti Parliamento per praedictos Dominos tunc ibidem existentes de assensu dicti Domini Regis quod praefatus nunc Comes nihil capiat per Petitionem aut Prosecutionem suam praedictam Et ulterius tam Domini Spirituales quam Temporales praedicti Judicium Declarationem praedictam versus dictum Johannem quondam Comitem Sarum ut praemittitur habita sive reddita de assensu ipsius Domini Regis asserunt fore esse bona justa legalia Et ea pro hujusmodi ex abundanti decreverunt adjudicaverunt Out of the last recited Precedent of 2 H. 5. may be observed That the Temporal Lords by Assent of the King may give Judgment on Offenders for capital Crimes and therefore Whereas it is said 2 H. 4. That the Judgment belongs only to the King and Lords that is herein explained The King's Assent ought to be to Capital Judgments and the Lords Temporal to be only Judges therein and not the Lords Spiritual But in Misdemeanors the Lords Spiritual and Temporal are equal Judges and the King's Assent is not necessary as shall appear §. 2. In what Cases the King's Assent is necessarily required Touching the King's Assent it is expressed in divers Judgments on Capital Offences 4 E. 3. against Mortimer Anno eodem against Simon de Bereford And there be divers other Judgments that year of this Nature wherein the King's Assent is not expressed but against John Matrevers Les Judices Peeres de la terre Judges de Parlement adjudgent agardant que le dit John be drawn hanged c. not mentioning the King's Assent And there are two other Precedents of the same Nature briefly Recorded Estre ou tiel Judgment est accorde que soit sait de Burges de Bayons John Dever And Item outiel Judgment est accorde de Tho. de Gurney W. de Ogle not mentioning by whom the said Judgments of Death were given 2 H. 4. The Judgment against the Earl of Salisbury and others for Treason is by the King's Assent and so is the Judgment of H. 4. against the Earl of Northumberland and 11 21 R. 2. upon those several Appeals In all which the King's Assent is recorded And so the Articles objected against Simon de Burley without the King's Assent and against his will which I shall here recite Item The aforesaid Dukes Earls of Arundel and Warwick Anno 50 E. 3. Richard Lyons pleading a Warrant from the King which he could not shew followeth thus c. And Tho. Mortimer continueth his traiterous purpose and by force of men took and imprisoned divers men your Liege c. Amongst others Simon de Burley Knight and him they carried in the Parliament at Westminster held the Morrow after the Purification of our Lady in the 11th year of your Reign and there were surmised against him divers points of Crime and Treason and thereupon was demanded of every Lord there present in Parliament his Advice of the said Simon touching the said Crime And afterwards the said Dukes and Earls of Arundel and Warwick would know your Advice Thrice Redoubted Lord. You answer plainly That the said Simon de Burley was not guilty of any the said Points and then they took upon them traiterously to have constrained you to have given your Assent to the Judgment which they have purchased against the said Simon upon the Points aforesaid And you Thrice Redoughted Lord would not consent to any Judgment to be given against the said Simon And yet notwithstanding the aforesaid Dukes and Earls took upon them Royal Power in prejudice of you and derogation of your Crown and without your Assent and against your Will and in your Absence and in the Absence of many other Peers of Parliament and without their Assent and against their Will awarded that that said Simon should be drawn c. and thereupon caused him to be beheaded but traiterously against your Crown Peace and Dignity This I have recited at large Unto which the Duke of Gloucester made no Answer being dead before the said Earl of Arundel pleaded the King's Pardon which was not allowed him The said Earl of Warwick confessed all the Articles in the said Appeal and put himself upon the King's Grace and the said Tho. Mortimer could not be found This Parliament begun at Westminster Die Lunae post Festum Exaltationis Sanctae Crucis and was adjourned to Shrewsbury And on Tuesday 28 January the Parliament there shewed unto the King how that they in the said Parliament at Westminster had accused and impeached John de Cobham in the 11th year of the King's Reign with others convicted in this Parliament accroaching to himself Royal Power in Judgment Awarded that the Lieges of the King Simon de Burley and James de Barners Knights should be Drawn Hanged and Beheaded without Assent of the King and against his will and in his absence and in the absence of many other Peers of Parliament who with held themselves and would not sit in such Judgment and against their will traiterously against the Peace of the King his Crown and Dignity And prayed our Lord the King to cause the said John de Cobham to joyn in this present Parliament to answer to the things aforesaid and to ordain such Judgment against the said John de Cobham as the Cause demands The said Jo. de Cobham was brought c. And touching the said Judgment awarded against the said Simon and James the said Joh. de Cobham said That it was told him by them who were present then That it was the King's Will to make such Judgment against the said Simon and James convicted of the said Judgment and Award which he had so given against the said Simon and James notwithstanding his Answer Whereupon c. Judgment was given against him and he adjudged a Traytor Here is objected That the Judgment against Simon de Burley was given by the Lords without the King's consent Secondly Against his Will Thirdly In the King's Absence Fourthly In the Absence of many of the Peers and against their wills Touching the First viz. The King 's not Assenting It may be Objected That the Lords gave Judgment against Weston 1 R. 2. without the King's Assent but yet not against the King's Will for they respited the Execution until the King might be informed thereof And the Reason then given for the said Respite was For that the King is not yet informed of the manner of this Judgment But whether the Lords proceeded to that Judgment against Weston before they informed the King because the King's Assent is not necessary or for that it being the last Day of the Parliament they had no leisure to inform his Majesty thereof let the Reader judge yet it seemeth to me that the King's Assent is necessarily required in Capital Causes and Judgments for these two Reasons First For that all
Question is out of that which seemeth to be most generally agreed on In the Judgment it self is to be considered First Whether it be ultra Legem Secondly By whom to be Demanded Thirdly By whom to be Rendred Touching the First Judgments in Parliament for Death have been strictly guided per Legem Terrae otherwise they would not have judged the Earl of Kent the King 's own Unkle to be Hanged Drawn and Beheaded might it be left to their Discretion Vide Literas E. 3. to the Pope speaking of this Earls Judgment by the Parliament for Treason Cui Sententiae subductis tamen quibusdam opprobriosis in detestatione tanti Sceleris de Rigore Legis nostri Regni infligenda erat Dolentes acquievimus 4 E. 6. But the Roll is lost The Lords judged Mortimer to be Drawn and Hanged as a Traytor 4 E. 3. Simile pro Simone de Bereford N. 2. Ibidem Numb 3. They judged John Matrevers to be Drawn Hanged and Beheaded 10 R. 2. Weston adjudged a Traytor for delivering up of Castles Forts c. And so Jo. Lord Gomeniz a German was adjudged to die but because he was an Alien and a Baronet and was not the King's Liege-man he should be Beheaded That being the Death used in Germany to Gentlemen 10 R. 2. Simon de Burley the Earl of Arundel and others were Adjudged to be Hang'd Drawn and Beheaded for Treason They differ something yet herein they agree That the opprobrious Death of a Traytor is to be Drawn and Hang'd which the Parliament could not alter no not in their Judgments against the King 's own Unkle It was per Legem Regni infligenda The King might pardon all and usually did except Beheading of the Nobility of his own Blood and of later Times to all Noblemen As the Parliament could not dispence with nor omit any part of the Judgment on Traytors so they could not add more than the Law required And this may appear by their Judgments of Forfeitures of the Parties Estate The Parliament 4 E. 3. spoke nothing what Mortimer should forfeit to the King He well knew the Law could give the King all his Lands in Possession Reversion or Service Vide The Restitution of 28 E. 3. Numb 10. The Ordinances in 50 E. 3. Numb 45. against Women which shall make suit c. to the King against Alice Peirce by Name is Upon pain of as much as she can forfeit and to be banished But had it not been for the former Ordinance the Lords would not have given any such Judgment against her Her Offence being only for procuring Favour to her Friends from the late King contrary to a former Order of Council 11 21 R. 2. The Lords Adjudged the Forfeitures to the King of some Convicted on the Appeals greater than the Law will give but they passed Special Acts in each Parliament to Confirm both the Judgments and Forfeitures 1 H. 4. The Lords Adjudged and Declared the Earls of Kent Salisbury and others to be Traytors and to Forfeit Numb 30. as the Law of the Land willeth 7 H. 4. They Adjudged the Earl of Northumberland and Lord Bardolph to Forfeit for Treason all their Lands in their own Demesne or where others were seized to their Use. And so in Fines and Amerciaments the Judgments anciently were indefinite prout 42 E. 3. Numb 26. John at Lee is Committed to the Tower there to remain till he hath paid Fine and Ransom to the King and at the King's will and pleasure 50 E. 3. He is Awarded to Prison at the King's Will and to be put to his Fine and Ransom according to the quality of his Trespass who being brought before the Lords they told him his ill Deeds were so great that he had not wherewith to make satisfaction and he submitted to the King's Grace and the Lords Awarded all his Goods to be seized and his Body to be in Prison at the King 's Will. Eodem Anno The Lord Latimer to make Fine and Ransom at the King's Will Numb 28. Item William Ellis the like Num. 28. John Peecher the like Num. 33. Cavendish Awarded 7 R. 2. to pay Dammages to the Chancellor and to remain in Prison until c. and the King de Fine suo competenti sibi inde debito but not set down how much to the King These Fines were not put in certain for that the Law limits them to the King's Will But not doubt but after the Judgment the Lords did rate them as may be gathered out of Richard Lyons where after Judgment they called him before them to consider it seems at what Rate to Tax the same And they found it not sufficient And in Ancient Court-Barons the Amerciaments were ever offered after the Presentments In the Star-Chamber all Fines were usually mitigated after the Censure and that Court had Antiqua Vestigia Magni Consilii I hold that anciently the Fines were often Rated or Taxed And if the Lords may mitigate a Fine à Majore they may Tax it after the Judgment the Certainty not being then specified Judgments for Satisfaction In Complaints of Extortion and Oppression the Lords Awarded Satisfaction to the Parties wronged which sometimes was certain sometimes general but always secundum non ultra Legem 42 E. 3. Numb 18. Full Restitution was made unto William Latimer of the Wardship and Marriage of the Heir of Sir R. Latimer whereof he was outed by Duress by John at Lee. But this was done by a great Councel per Commandment du Roy after the Judgment William Ellis 50 E. 3. Awarded to pay to Botheil and Cooper 20 l. apiece for their Damages Num. 25. John Peecher Num. 23. Awarded que il face yeulx a les parties Compl. de lui pour les extortions issint prizes Jo. Nevile Num. 34. is Awarded to make Restitution to the Lady Ravensholme in Certainty for an Oppression done to her whereof the Commons complained 7 R. 2. The Parliament referred the base Accusation of Cavendish against the Lord Chancellor to be heard and determined by the Justices in such sort as if the Parliament had determined the same And the Justices adjudged him convict of Slander and that the Lord Chancellor should recover his Damages which they Taxed at 1000 Marks and that he be imprisoned until he had satisfied the Chancellor and the King pro Fine competenti sibi inde debito The Iudgment against Alice Peirce Anno 10 R. 2. was That if she had purchased any Lands by Force or Duress soit il pur Fine or Deed en pais or Deed enrolled or otherwise that her Purchase be held for none and the parties who hold themselves aggriev'd have their Process against her in Chancery By Advice of the Grand Councel Let Right be done to the Parties and Restitution made according as the Case requireth so as the Purchase made bona fide be not undone or annulled any way References to the Common Law Nor could the Lords judge any Complaint of
preist with the King Anno 50 E. 3. Numb 28 29. The Lord Latimer is Awarded to prison destre en guard du Marshal and afterwards upon Mainprise of diverse Earls suffered to go at large So it seemeth that first he was Committed and delivered to the Earl Marshal immediately Primo R. 2. William Fitz-Hugh was Committed to the Tower but it appeareth not who carried him thither At this Day the Lords have used to impose some Corporal punishment on Misdemeanors prout Flood And at this Day if a Peer be Committed to prison the Gentleman Usher hath the Charge of him thither and the Serjeant attending on the Great Seal prout Anno 18 Jac. 16 Febr. The Earl of Berks was sent to the Fleet by the Gentleman-Usher for forcibly thrusting the Lord Scroop in open House Anno 21 Jac. 13 Maii. The Earl of Middlesex was Committed to the Tower and a Warrant given to the Gentleman Usher to carry him thither Anno 1 Car. 1. In the Parliament begun 6 Febr. The Gentleman-Usher was commanded to bring the Earl of Bri-Bristol But if a Commoner be Committed the Serjeant at Arms attending on the Great Seal doth usually carry him to prison and he also hath the Charge of him and to see any Corporal punishment inflicted on him Anno 18 Jac Wright and two Serjeants at Mace who had Arrested a Servant to the were Censured to ride with Papers on their Heads for their wilful Contempt and Scorn of the Priviledges of Parliament And for that the Serjeant at Arms did not see the whole punishment Executed on them he himself was Committed CHAP. VIII For Recovery of Damages or Restitution of the Party aggrieved ANno 50 E. 3. Botheil and Cooper had each of them twenty pounds Awarded for their Damages and it is not there declared how they should recover the same In the same year John Lord Nevile upon Complaint of the Commons is awarded to make Restitution to the Executors of the Lady Ravensholme neither when the same is to be restored nor the manner how the same shall be recovered is declared In those two Cases I conceive the Parties are to have their Remedy the Parliament being ended in the Chancery and not in any other Inferior Court at the Common Law But the Lords in Parliament may direct how it shall be Levied Anno 1 R. 2. The Lords adjudged Alice Peirce to forfeit all her Lands and Goods to the King and notwithstanding this Forfeiture If she hath purchased any Lands by Force or Duress it shall be void and the Party grieved to have his Remedy by Process in the Chancery and by Advice of the Lords of the Councel Let Right be done and Restitution made Anno 7 R. 2. John Cavendish was awarded to pay 1000 Marks to the Lord Chancellor for his Damages and to remain in Prison until he had paid it FINIS Peers to render Judgment on Peers Quite contrary to the Law of the Land How Bishops are tryable The nature of the offence In whnt Cases c. Of Judgments on Delinquents Four manner of Accusations in Parliament Complaints by Petitions Petition Respons Answer Answer Impeachments of the Commons Observe Observe Mortymer and Cobham William de la Pool Duke of Suffolk impeached General Fame Lord Visc. St. Alban Chancellor accused who was Sir Francis Bacon Accusation Ex parte Domini Regis Of Accusation by Information Ex parte Domini Regis The Judgment defective in all points The Lord Berkley arraigned waved his Peerage Quest. Resolv Observ. The Earl of Bristol charged with Treason Articles against the Duke of Buckingham Quest. Resolve 1. Observ. A Petition The Lords cannot impeach any to themselves A great Oppression * Promâ—oter The Fishmonger contra L. Chancellor The Chancellors Answer The Chancellor acquitted The Fishmonger guilty of the Defamation Bish. Williams Lord Keeper The History of the Appeal of 11 R. 2. The Lords cannot proceed against a Commoner but upon complaint of the Commons Appeals abolished per Stat. 1 H. 4. c. 14. An Answer required though the Duke was known to be dead Found guilty long time after he was dead so forfeited his Estate The Party accused to be brought to his Answer Touching Councel In Misdemeanor the Party may have Councel to answer The Mayor and Commonalty of Cambr. accused The Parl. hath compelled a present Answer iu Misdemenors and without Councel The Replication next which belongs to him or them that sue Impeachment against the L. Latymer His Answer His Answer to each Particular W. Ellis impeach'd His Answ. The Reply The Lord Nevile impeach'd Witnesses Witnesses by the Commons A Committee for Trial of Alice Peirce George Duke of Clarence arraigned No man questions the Duke but the K. none answers the King but the Duke Against Law that the King should enforce Testimony against a Delinquent A Royal wise Answer The Commons accusare petere Observe In what Cases the King's Assent is necessarily required Peeres de la terre A bold Saying This Duke of Glouc. was many years after imprisoned for this at Calice there died in his Bed In Judgment on Misdemeameanors the King's Assent is not required The Lords Spiritual In Cases of Misdemenor they may be present In Cases Capital may not be present The Protestation of the Bishops forever Observ. No exceptions taken for the Absence of the Prelates Note especial The Presence of the Commons in Cases Capital The Presence of the Commons not necessary The Presence of the Judges How the Lords resolve on their Judgments Judgm for Satisfaction Touching the Demand By whom Judgment ought to be rendred The Precedents of Life and Death Obj.
that whereas he being Chancellor was bound by Oath to further the King's Profit and Commodity in all things He notwithstanding contrary to the said Oath and not regarding the King 's great necessity had purchased of the King Lands and Tenements to a great value procuring the same by reason of his Office to be Surveyed at an under value 2. Item Whereas at the last Parliament nine Lords were appointed to see and examin the State of the King and Realm which being done and their Advice delivered to the King as well by word as writing by what means the same might best be remedied The Chancellor promised in open Parliament that the same should be put in Execution which was not done through his default he being a Principal Officer 3. Item Whereas the Subsidy granted the last Parliament was appointed by the assent of the King and Lords in what sort it should be expended and not other ways employed in this was his default he being Principal Officer 4. Item Whereas John Tidman had a certain Annuity from E. 3. which he had since forfeited and the payment thereof was discontinued for the space of 20 or 30 years The said Chancellor knowing this purchased his Interest and procured the King to confirm the same unto him c. 5. Item That whereas the great Master of St. Antony being a Schismatic had thereby forfeited to the King all his Revenue within this Realm the same Chancellor had taken the same to Farm of the King for 20 Marks And whereas the Master should have livery thereof again he could in no wise get the same until he had bound himself to pay 100 l. yearly to the Chancellor and his Son 6. Item That during the time of his Chancellorship there had passed divers Charters of Pardon as well for Murders Treasons and Felonies as also for rasing of Rolls and imbezelling of Laws and Records and especially since the beginning of this Parliament a Charter of Franchises was granted to the Castle of Dover to the disinheritance of the Crown and to the Subversion of all the Places and Courts of the King and his Laws 7. Item That at the last Parliament divers Sums were allotted for the defence of the Town of Gant notwithstanding the same Money was lost c. by his default c. Of all which Articles the Commons demand Judgment of the Parliament c. I have been long upon this considering all the Precedents follow at large These are the most formally set down of all the Accusations hitherto of the Commons yet most of these are very general and uncertain Howbeit the Chancellor took no exceptions to the insufficiency thereof but answered to every particular The next Accusation of the Commons is 11 R. 2. in the 21. of the King they accused divers of those whom the Lords had first appealed whereof when we speak of all Appeals Anno 21 R. 2. the Commons accused and impeached of Treason the Archbishop of Canterbury Numb 15. and demanded Judgment against him and had it Numb 16. Eodem Parl. The Commons accused and impeached of Treason Tho. Mortymer and John de Cobham a Baron of Parliament and had Judgment against them both Anno 28 H. 6. William de la Pool Earl Marshal and Duke of Suffolk was accused and impeached by the Commons in manner following viz. The Duke being the great Favorite of the King and Queen the common People laid all the fault of the evil Government on him and made Ballads thereof which I have seen taxing his Loyalty to the King The Parliament of 28 H. 6. begun the 6th of November and held to the 6th of December and was then Prorogued to the 22th of January The Duke of Suffolk whether provoked by the Ballads then made on him or by some Speech in the House of Commons whereof nothing is recorded did require of the King that he might be specially accused and be heard to answer for that many reported him to be an untrue man and he made a solemn Protestation of his Loyalty wherein he sheweth that his Father and three of his Brethren died in the Service of the King and of his Father and Grandfather That he himself had served 34 years in the Wars being then but a Knight That he had been taken Prisoner and paid 20000 Marks for his Ransom That he had been 30 years of the Order of the Garter Chancellor to the King 15 years and had been 17 years in the King's Wars without returning home And he prayed God so to pardon him as he had been true to the King and required his Purgation Numb 14 15. Whether this was sent to the Commons or what notice they had of it appears not but on the 2th of January the Commons required the Duke might be committed to Ward for his own Confession for that as I concieve he himself confessed That the general Fame went of him And the Lords on Consultation of the Justices thought the same to be no good Cause of Commitment unless some special Matters were objected against him Numb 16. On the 28th of January the Speaker declared to the Lords how the Duke of Suffolk as it was said had sold this Realm to the French who prepared to come hither And that the said Duke for his own defence had furnished Wallingford Castle with all Warlike Munition And then on request the Duke was committed to the Tower On the 7th of February the Chancellor and some other Lords were sent by the King to the Commons a thing not usual but wherefore they were sent is not expressed happily to be informed what they could say against the Duke or to reconcile the business But the Commons delivered to this Chancellor and those other Lords a Bill of Articles against the Duke wherein they accused him of divers Treasons viz. For intending to marry his Son to the Heir of the Duke of Somerset and thereby for want of Issue of the King to claim the Crown For practising with the French c. Numb 18 19. and they require Prosecution against him Numb 17. March 19. The Commons delivered another Bill of less Offences against him Numb 28 29 30 c. requiring those Articles also to be inrolled and the Duke put to his answer These before recited are all the ancient Precedents I find recorded the following are of later times Anno 1 Jac. The Commons accused and impeached by word of Mouth Sir Giles Mompesson and Sir Fr. Michell Knights for many Oppressions done to the People They impeached them to the Lords at a Conference and afterwards delivered their Declaration against them First Concerning a Patent for Inns and Osteries Secondly A Monopoly for Gold and Silver Thread Thirdly Concerning a Patent of Concealments Eodem Parl. They accused Francis Lord Viscount St. Alban at a Conference of Bribery and Corruption in his Office of Chancellor They delivered no Writing but a Committee of the Lords having considered the Proofs and drawn up
the Particulars in form of a Charge they were sent to the Lord Chancellor and his answer required to each particular In the same manner in the same Parliament they accused John Bennet Judge of the Prerogative Court of Bribery and Corruption in his Office In the same manner they accused and impeached Lyonel Earl of Middlesex and Lord Treasurer of England of Bribery and Extortion and Impositions on French Wines and Grocery which being reported to the House a Committee was appointed to consider of the Commons complaint and also of a Committee who had reported to the House a great want of Powder in the Stores through the Lord Treasurer's negligence A Committee appointed to consider thereof did after many Examinations taken draw up out of the whole Complaint of the Commons a Charge against him as also out of the Report of the Committee for Munition touching the want of Powder and of a Complaint made to the House by Sir Thomas Dallison and of some Misdemeanors whereof they are informed in the great Wardrobe and Court of Wards Which Charge the House sent unto the Treasurer and required his Answer 21 Jac. In eodem Parl. 21 Jac. The Commons at a Conference accused and impeached by word of Mouth the Bishop of Norwich of some Misdemeanors which being reported to the House the said Bishop made a present Answer thereunto as it was In the Parliament 1 Car. 1. Febr. 6. The Commons at a Conference accused and impeached George Duke of Buckingham of many Misdemeanors and delivered their Declaration in Writing that the said Duke might be put to his Answer § 2. The second manner of Accusation is Ex parte Domini Regis which is threefold The two first are immediately from the King and the third from the Commandment of the Lords by a formal Information exhibited in Parliament by the King's Attorney or Council learned as was that of E. 3. against Roger Mortimer Earl of March and divers others and 4 R. 2. against Sir Ralph Ferrers K t and 1 Car. 1. against the Earl of Bristol By the King's Commandment either upon the Petition of the Delinquent and upon the return and view of any the Proceedings taken elsewhere as against the Earl of Northumberland and Lord Bardolph upon former Proceedings against them in the Court of Chancery And 2 H. 6. upon request of the Commons against Sir John Mortimer Knight indicted in London In these Cases no Articles are exhibited Ex parte Domini Regis as in the former By Articles exhibited Ex parte Domini Regis Ex parte Dominorum against such as the Complaint is made upon in general by the Commons prout 1 R. 2. against Gomeniz Weston and Alice Peirce 7 R. 2. against the Bishop of Norwich and divers others Which Articles though drawn and exhibited Per mandatum Dominorum yet were the Parties charged therewith Ex parte Domini Regis Of Accusation by Information Ex parte Domini Regis In Rot. claus 4 E. 3. There is a Proclamation of the death of Edmond Earl of Kent where it is said certain Letters of his containing Treason were shewed to the King wherefore he was Arrested and freely acknowledged the same before the Earls Barons and other Grandees and Nobles of the Realm in the Parliament at Winchester 4 E. 3. Here appears plainly that Articles of Treason are exhibited in Parliament against the Earl of Kent In the next Parliament in the same year Edmond Son and Heir of the said Edmond exhibited his Petition praying the King that the Record and Process whereupon the said Earl was put to death might be brought before him in Parliament and if Errors be found that Right be done Numb 11. The which being read before the King Prelates Earls Barons and other Grandees in the said Parliament the King by his Royal Power and Dignity by assent in Parlialiament repealed the said Judgment Numb 12. Note That in this Repeal no Error was alledged nor any Exceptions taken for this that the Lords proceeded upon the Articles only which were objected against him the said Earl This is out of the Close Roll. The first Precedents recorded in our Parliament Rolls of Accusations in this kind are these of 4 E. 3. in the Parliament at Westminster which are added at large amongst divers others at the end of this Discourse the effect whereof doth follow viz. These are the Treasons Felonies and ill Deeds done to our Lord the King and to his People by Roger de Mortimer and others of his Covin reciting them all and concludeth thus Whereas our Lord the King doth charge you the Earls Barons and other Peers of this Realm that for as much as these things touch him principally and you and all the People of this Realm That you do unto the said Roger right and lawful Judgment as is fit for such an one to have who is very guilty of all the crimes above written for that he believed the said things are notorious and known for truth unto you and to all the People of the Realm Numb 1. The followeth the Judgment against him Item In the said manner our Lord the King charged the said Earls Barons and Peeres to give right and lawful Judgment on Simon de Bereford Knight who was ayding and counselling unto the said Roger de Mortimer in all treasons and ill deeds for which the said Roger was so awarded and done to death as the thing that is known and notorious to the said Peers as the King believeth Then followeth the Judgment against him also Then followeth the Judgment against John Matrevers Thomas de Gurney and William de Ogle Numb 5. But no particular accusations are recorded against any of them unless they were comprised in those general words of that against Mortimer viz. And other of his Coyn. For some of the same Crimes are mentioned in the Judgments yet no doubt but the Kings Attourny did exhibit Articles against every of them upon which the Lords proceeded to Judgment Here I do ingenuously confess my own Error when I said that this Judgment against Roger de Mortimer was afterwards reversed for that he was put to death without any Accusation which I conceived to be so upon first view of the Repeal thereof Anno 21. E. 3. Numb 10. Where the Petitioners Roger de Mortimer the Grandchild assigneth for that the said Earl was put to death and he disinhereted Sans Accusament Et sans estre masone in Judgment ou en Respons By which words sans accusament I gave you to understand that the Articles were no accusation whereas now upon better Consideration I do find that these words do intend no accusation by witnesses or otherwise to prove the said Articles objected against him For these Articles are a legal accusation in Parliment and frequently used as appears by many Precedents of the like nature But there was no other proof offered by the Lords to prove the same then that the King believeth them
They met at Westminster June 19. and were assisted by the Lord Treasurer Lord Keeper Lord Privy Seal the Master of the Rolls and the King 's two Serjeants c. and they called the Fishmonger before them and cause to be recited the said Accusation and the Chancellor's Answer and then demanded of him what he could say why he should not undergo the Penalty of the Statute against such Scandals especially whenas the Chancellor hath acquitted himself in Parliament and is yet ready to acquit himself by any way possible The Fishmonger denied that he slandered the Chacellor but the Clerk only c. The Commissioners considering the Accusation and Answer in Parliament and especially that the Fishmonger said he could not have Justice in his Cause before the Chancellor the contrary whereof was expressed and proved out of the Records of the Chancery They adjudged him guilty of Defamation and to pay one hundred Marks to the Chancellor and to be imprisoned until he could pay the same and a competent Fine due to the King It should seem the Lords could find no time to examine the Injustice he complained of and therefore referred it to the Judges Anno 6. R. 2. Octab. Mich. Numb 59. Divers Bills were exhibited this Parliament by the Mayor Aldermen and Citizens of London concerning the Fishmongers and the said Mayor and Aldermen and Fishmongers were present at the reading thereof where Nicholas Exton who spake for the Fishmongers prayed the King to receive him and his Company into his Majesties protection Numb 59. which was granted Numb 60. Then one Walter Sybil a Fishmonger craved Audience and said These Bills were not exhibited for any good zeal to the Commonweal but for meer Malice to the Fishmongers for that the chief Exhibiters of these Bills being commanded to prison for sundry Misdemeanors in the time of E. 3. were then imprisoned by certain of the Fishmongers who then were chief Officers in London for which cause Malice was born at that time Numb 60. To that one John Moore a Mercer answered The Citizens of London went to keep the Peace towards them unless they went about to let into the said City the Rebels of Kent and Essex as the said Walter and others did Numb 60. The said Walter Sybill took advantage of those words and desired the Lords to bear witness John Moore thereupon expounded his words saying as the Report then went and prayed the Lords that the Truth thereof might be further enquired of in the City There is one only Precedent of a Complaint made by a private person in the House of Commons and of the Commons proceeding therein against a Lord of the Parliament which was thus Anno 15. H. 6. Tho. Philips exhibited unto the Commons his Bill of Complaint against John Bishop of London for his long Imprisonment upon suspition of Heresie The Commons sent up the Bill being written in Paper amongst other to the Lords without any Message for ought appeareth upon Record On Monday following the Bill was read and the Lords Excogitabant That it did not belong to their House de talibus frivolis rebus consultare and returned it to the Commons Hereupon the Commons sent to the Bishop for his Answer in writing unto this Complaint which yet the Bishop did forbear to do until he knew the Opinion of the Lords herein and acquainted their Lordships therewith The next day the Lords answered all with one voyce Quod non consentaneum fuit aliquem Procerum alicui in eo loco responsurum Lunae 2. Martii In the Parliament begun at Westminster An. 16. Jac. Sir John Bowser Knight complained of the Bishop of Lincoln the then Lord Keeper but he was not compellable to answer before the Commons 10 R. 2. The Commons accused de la Poole openly in Parliament before the King and Lords unto which the Councellors made a good Answer in the Opinion of this Age yet upon the many Replications of the Commons and the enforcement of his Oath strictly against him he was Fined and Imprisoned c. In this Parliament also the Lords and Commons procured Commission unto certain of the Lords to enquire of the Enormities of the Realm and to redress them The King was so highly displeased with these Proceedings that on the last day of this Parliament being the 25th of November he himself protested that nothing done therein should turn to the Prejudice of him or his Crown Afterwards he sought all means to overthrow those Lords who procured that Commission viz. the Duke of Gloucester the Earls of Danby Arundel Warwick and Earl Marshal And at a Consultation thereupon he sent for the Chief Justice Tressilian and some other Judges and his Serjeants at Law unto Nottingham where on August 25. Anno 11. he propounded certain Questions containing all the points of Advantage against the Proceedings of the last Parliament which the Judges affirmed to be Treason under their Hands and Seals Then the King thought to proceed judicially against those Lords but they kept together with the Duke of Gloucester at Heringby with a strong Guard And the King sent for them and all doubts of danger to their Persons being first removed they came Novemb. 3. Anno 11. and kneeling before the King's Majesty he demanded why they were Assembled at Heringby-Park in warlike manner They answered for the good of the King and Kingdom and to remove certain Traytors from about him meaning the Lord of Ireland the Archbishop of York Michael de la Poole Sir Robert Tresilian and Sir Nich. Brembre And with that they threw down their Gloves and Gages of the Challenging to prove the same Unto which the King replied This shall not be done so but at the next Parliament which shall be the Morrow after Candlemas Day and then all parties shall receive according as they deserve In the mean time he conveys away the parties accused and acquits them by Proclamation then summoned a Parliament at Westminster Crast. Purificat 11 R. 2. Where these few Lords Appellants came well Armed which made the King unwilling to come amongst them yet at last he came Haec ex Ep. fol. 603. On the first Day of this Parliament the Duke of Gloucester one of the said Appellants kneeling before the King shewed That whereas he understood his Majesty was informed that he intended the Deposing of him and Advancing himself to the Crown he was ready to declare his Innocency herein in such sort as the Lords would ordain Whereupon the King answered He held him thereof acquitted On the second Day of this Parliament the said Appellants exhibited their Petition to the King concerning several Articles against divers Lords and Commons whom they appealed of Treason The said Articles being read in presence of the King and Lords in Parliament the said Appellants offering to make Proofs thereof required that the said Appellees might be called to Answer and for default of their Appearance demanded Judgment against them Hereupon
said Mortymer having notice thereof withdrew himself among the wild Irish where the same Serjeant nor any other Officer of the King 's durst come for fear of Death Wherefore and for that his Offences are notoriously known both to the Lords and them they prayed Judgment c. The King the Lords and the Procurators of the Clergy considered of the Request of the Commons with good deliberation and then the Lords with the said Procurators by the assent of the King and Commons did award that Proclamation should be made through England and Ireland commanding the said Tho. Mortymer to render himself in proper Person to the King in what place soever it shall be in England within three Months after the 23th Day of December next coming to be at his Answer and they farther awarded That if he came not c. that then he shall be judged Traytor and Convict of of all Treasons whereof he is accused and shall forfeit c. Then the King adjourned the Parliament and the Appellants to the 15th of Hilary next at Shrewsbury on which Day the said Appellants declared to the King That it was awarded that Proclamation should be made c. ut supra The Commons did the like And for that the said Tho. Mortymer came not they had judgment In 7 H. 4. The Lords agreed this Judgment against the E. of North. and the Lord Bardolph who were fled to the Rebels in Wales and Proclamation ut supra throughout England At the day prefixed they examined the Returns of the Proclamations in the presence of the Commons and so the Judgment was agreed on in their presence also and so it ought to be in all Cases of Life and Death And finding a small Error they awarded new Proclamations in London only and the Return thereof was again viewed and considered in the presence of the Commons and then on the next day Judgment was given Eodem Anno 21 R. 2. The Lords Appellants accused also the Duke of Gloucester of Treason and although they knew he was dead they prayed the King that he might be brought to his Answer Whereupon the King sent his Writ to the Council of Calice unto whose Custody he committed the said Duke to bring him into the Parliament to his Answer The Captain returned his Writ That the Duke is dead the which Writ and Return being read the said Appellants prayed Judgment and the Commons shewed That the Dukes Levying War against the King's Person is notoriously known to all the States of Parliament and therefore they desired Judgment also and had it And what may not the whole Parliament do when they joyn in one Yet notwithstanding the King fearing some Error as it seems the Lords Appellants besought the King that if there were any thing on Record be it by Confession or otherwise which concerned their Appeal that it might be openly known and shewn in full Parliament Whereupon by the King's Commandment was read a Commission granted unto William Richal Justice of the Common-Pleas and a Confession of the Duke of Gloucester made before him by vertue of the said Commission yea and Richal himself being commanded did justifie that the Duke did write the Confession with his own hand in his absence and afterwards read it unto him so careful they were to have something to supply an Answer I marvel that Richal was acquitted of his Proceedings herein at the next Parliament of 1 H. 4. where he affirmed that much of this Dukes Confession was altered after he had returned his Commission He well deserved to die in that he spake not of it Yet there is one Precedent directly contrary to all this viz. 11 R. 2. in that Appeal which happened on this occasion The aforenamed Duke of Gloucester and four other Lords went to the King and accused the Duke of Ireland the Archbishop of York Michael de la Poole and others of Treason the King adjourned them to the next Parliament promising them Justice there and in the mean time conveyed away the Parties accused and then by Proclamation Part 8. fol. 603. in the next Parliament 11 R. 2. the Articles of the Appeal being read the Duke and other Appellants offered to make proof thereof and required that the Parties appealed might be brought to their Answers and for default of Appearance demanded Judgment Whereupon the King did deliberate with the Lords and commanded the Justices and other Sages of the Law to give their best Counsel to the Lords how to proceed rightly in this Matter of Appeal who after Consultation therein had answered the Lords That they had seen and considered the Tenor of this Appeal which they said was in no point made and declared according to the Order of the Common or Civil Law But they gave no Answer touching the Demand of Judgment for default of Appearance whereupon the Lords deliberated and after by the Lords assent declared that this Cause committed by the Peers against the Person of the King and State of the Realm shall be determined in the Parliament only and by no other Law than by the Law and Course of the Parliament And that it belongs to the Lords only to judge in such Cases And with the assent of the King they did judge the same Appeal and the Process thereupon depending to be good according to the Law and Course of Parliament Then the Lords Appellants proceeded and desired to have the fault of Appearance recorded and Judgment given and so it was So likewise 21 R. 2. After the King had given the full power of Parliament to determine all Matters begun into the Hands of twelve Lords or six and six Commoners or any three He adjourned the Parliament from Westminster to Shrewsbury in 15 Hil. and there on March 22. It was shewed to the King how that Robert Possington was impeached at the Parliament at Westminster for being with the Duke of Gloucester in levy at Herring An. 11 R. 2. For which the said Duke was adjudged as Traytor and therefore they brought the King to ordain the like Judgment against Robert Possington though he was dead Whereupon our Lord the King by the assent of the Lords and Knights of Counties having power c. awarded the said Robert guilty c. And that he shall forfeit c. But these extraordinary Precedents cannot lead us into the ordinary course of Proceedings and I alledge them only so as their Errors may be avoided § To conclude it is the just and constant Course of Parliament to bring the Party accused to his Answer yea though he fly Justice yet to send out Proclamations into the Countries that he appear at a Day or else such and such Judgments shall be given against him I confess this Course was omitted in the Judgment against Mompesson 18 Jac. and haply it was not then thought upon the Judicature of Parliament being so long out of use and therefore that cannot be alledged as a leading Precedent And in
that Judgment 21 H. 6. against Sir Jo. Mortymer upon an Indictment of Escape out of Prison being committed upon suspition of Treason the said Mortymer's Answer is not recorded yet it is said he was brought before the Lords and the said Indictment read in his presence that he made an Answer unto it though not mentioned And this proves that the Party is to be brought to his Answer else Mortymer's presence had not been necessary Anno 7 R. 2. Numb 2. The Duke of Lancaster and Gloucester complained to the King That Sir Tho. Talbot with others conspired the Death of the said two Dukes and prayed the Parliament to judge thereof The Fact is judged High Treason and Writs sent to divers Sheriffs to apprehend him which Writs were retornable into the King's-Bench And upon Proclamation made in Westminster-Hall That upon the Sheriffs Return and the not-Appearance of the said Thomas he should be convicted of Treason and forfeit c. This was extraordinary in terrorem But what may not the whole Parliament do They may alter Law much easier than Form In the Answer is to be considered First In what Causes the Party is to answer as a Prisoner and in what as a Freeman Secondly When Councel shall be allowed him and when not Touching the First The Parliament hath guided their Proccedings therein secundum Legem terrae Judicium Parium According to the 2th Chapter of Magna Charta Nullus liber homo capietur vel imprisonetur c. nisi per legale judicium Parium suorum vel per legem Terrae And therefore in Causes Capital whether the Party accused be a Lord of the Parliament or a Commoner he is brought a Prisoner to his Answer secundum legem terrae prout 4 E. 3. Numb 1. c. The Lord Berkley accused by the King for Murder of E. 2. Anno 1 R. 1. Jo. Lo. Gomeniz and W. Weston Upon the Demand of the Commons for surrendring Forts beyond the Seas An. 4. R. 2. Sir Ra. Ferrers Knight was apprehended for suspition of Treason Anno 28 H. 6. Although the Lords refused to commit the Duke of Suffolk upon the Commons complaint of him of a common Fame of Treason yet when they accused him of particular Treason he was Committed and brought Prisoner to his Answer But in Cases of Misdemeanors it is otherwise then the Party accused whether Lord or Commoner answers as a Freeman The Lord within his Place the Commoner at the Bar and they are not committed till Judgment unless upon the Answer of a Commoner the Lords find cause to commit him till he find Sureties to attend c. lest he should fly prout Jo. Cavendish upon the Lord Chancellor's Demand of Justice against him for his false Accusation was Committed after his Answer until he put in Bail Anno 7 R. 2. And before Judgment And so Michael de la Poole the said Chancellor 10 R. 2. after his Answer and many Replies of the Commons was Committed and presently Bayled Anno 50 E. 3. William Lord Latymer and John Lord Nevill being impeached by the Commons answered in their Place so did the Bishop of Norwich and the Lord Chancellor 7 R. 2. And the said Lord Chancellor too 10 R. 2. answered in his Place though afterwards he was committed before Judgment upon Request of the Commons The Bishop of Bristol 1 Jac. and the Duke of Buck. 1 Car. 1. All these answered as Freemen in their Places their Offences not being Capital And the like Precedents there are of Commoners Anno 50 E. 3. Richard Lyons William Ellis and John Beecher did answer as Freemen being impeached by the Commons And whereas the Commons did that year also accuse Adam de Bury who was absent the Lords sent for him to come but he contemned their Authority and came not Then the Lords as it seemeth by the Record sent to apprehend him and he could not be found wherefore they awarded that all his Goods should be put in Arrest Ibid. N. 17. It is briefly entred Adam was sent unto to come and answer in Parliament he came not nor could be found Wherefore it was awarded c. Which is sufficient to prove A Commoner is not to be brought a Prisoner to his Answer for a Misdemeanor if he will appear 5 R. 2. The Mayor and Bayliffs by name and the Townsmen of Cambridge were complained of in Parliament for many Outrages against the Scholars there and the Lords sent one Writ to the Mayor and Bayliffs that then were and to the Commonalty to appear and answer and another Writ to the Mayor and Bayliffs that did the Outrage and they appeared in person and the Commonalty by their Attorney This was the Ancient Course Yet even in these Days viz. 15 R. 2. the Peer of Holland complained of a great Riot committed by Henry Tibb and divers others in the Parsonage-House of one Williams Whereupon a Sergeant at Arms by vertue of a Commission to him made brought up the said Tibb and one more only the principal doers therein before the Lords in Parliament who upon the Return of the Examination confessed nhe whole Matter and were committed But I suppose the Sergeant at Arms was sent for haply they would have obeyed no Writ and yet he was sent for two of the principal Offenders only At this Day if the Commons accuse a Commoner of Misdemeanors in such a state of Liberty or restraint as he is in when the Commons complain of him in such he is to answer prout 18 Jac. Sir Francis Michell and Sir John Bennet were both committed by the Commons before their complaint to the Lords and so they answered as Prisoners But that in a sort may be called Judicium Parium suorum 18 Jac. The Earl of Middlesex being then Lord Treasurer and accused of Misdemeanors only absented himself from the House His Charge was sent to him in writing and he answered in writing At the Day prefixed for his Trial he was summoned by the great Usher to appear He came without his Staff and kneeled until the Lord Keeper willed him to stand up There he protested That he ought not to answer in that Place and desired others might not be prejudiced thereby And I hope they will not The Earl did himself the first wrong by absenting himself from the House for he might have stayed there until Judgment unless when his own Cause came in agitation §. 2. Touching Councel In all Causes of Felony Treason c. Councel antiently was denied to the Party accused prout Anno 4. R. 2. Numb 21. Sir Ralph Ferrers was brought to the Parliament under the Guard of the Marshal of England and arraigned at the King's behalf for suspition of Treason who prayed to the King and to the Lords to have Councel in that Case Unto whom it was said That in all Matters wherein Councel ought to be granted by the Law of the Land the King or Lords would allow it And it was further
Thar seeing by Order of the Lords House May 4. the Earl of Bristols cause should be wholly retained in this House how that might now be done in respect of the Stat. of 35 H. 8. By which it was enacted That all Treasons committed beyond the Seas as this Earls were shall be tryed in the Kings Bench or before Commissioners Assigned by the King And an Order of the upper House cannot avoid the Statute Some were of opinion that the Earl was first to be indicted before Commissioners appointed by the King and that Indictment being returned into the Parliament to be tryed thereon by his Peers and vouched that Precedent of 2 H. 6. Of Sir John Mortimers Indictment returned into the Parliament But then the Cause cannot be wholly retained in the Parliament neither can it be inferred out of the Precedent of Sir John Mortimer that the Parliament can try any of Treason unless he be Indicted elsewhere For then the Parliament should not have so much power as hath the Kings Bench and other inferiour Courts wherein Capital Offences may be both enquired of and determined Neither can Sir John Mortimers Indictment thus returned be a leading Case for Tryal of Peers in Parliament for he was but a Commoner and therefore not to have been judged by the Lords unless they had first accused him and the Commons did so by Informing the Indictment to be true before the Lords gave Judgment upon him But their can be no Precedent shewn that a Peer of Parliament hath been tryed in Parliament on an Indictment taken elsewhere To resolve this Question two things are Considerable First The Statute of 35 H. 8. Whether the meaning thereof were to limit the Tryal of a Peer in the time of the Parliament for Forreign Treasons assigned taken in the Kings Bench or before Commissioners Assigned by the King and not elsewhere But I conceive the Statute hath no such meaning The Preamble saith it was doubted whether such Treasons might by the Common-Law of the Land be enquired into heard and determined within this Realm of England For a plain remedy Order and Declaration herein to be had and made Be it enacted c. So that if such Treasons have not been heretofore enquirable by the Common-Law then this Statute provides a Remedy and Order for the same hereafter But this Statute doth not abridg the Parliament of the power it had to enquire of and determine such Treasons in time of Parliament Whereof there are diverse Precedents viz. 1 R. 2. Weston and Gomeniz 50 E. 3. for William Latimer and John Nevil 7 R. 2. for the Bishop of Norwich ibid. Numb 17. for Cressingham and Shipworth ibid. Numb 24. for Sir William Elsingham Sir Thomas Trevet and Sir Henry de Ferrers all Tryed in Parliament for matters done beyond the Seas The second thing to be considered is The Order it self which I conceive to be of force notwithstanding the Statute of 35 H. 8. for that it is neither directly contrary to the Statute nor repugnant to the Common-Law otherwise the Act of one House alone cannot alter a former Statute made by consent of both Houses And this is to be remembred that the Proceeding against a Peer in Parliament is not necessary But thus it was used to be viz. The Peer accused to be brought before the Lords and Commons and then the Lord Steward to sit in the Chancellors place on the Woolsack and the Articles to be read against him by the Clark of the Crown and upon his Answer the Lords do determine of their Judgment which is afterwards pronounced by the same Lord Steward A Question might be whether the Commons have used to sit with their Speaker at these Tryals If they have then the Court of Requests or some such place may be provided for the purpose And thus that whole Cause might be retained in Parliament notwithstanding the Stat. of 35 H. 8. Thus much touching the Accusation ex parte Dom. Regis exhibited in a formal Accusation by the Kings Atturney The Duke of Clarence was arraigned in Parliament 18 E. 4. upon the like Information but the Precedent is not in the Parliament Rolls Therefore I omit it §. 4. The second kind of Accusation on the Kings behalf is ex mandato Dom. Regis upon the Roll and view of any proceedings elsewhere against the Delinquent or upon his Petition The Precedents thereof are these Anno 5 H. 4. The Earl of Northumberland was Tryed in Parliament ex mandato Dom. Regis upon his own Petition The Accusation and manner was thus The said Earl had raised Forces to have joyned with his Son Hotspur in Rebellion against the King Hotspur was slain in the Battel of Shrewsbury 21 July 4. H. 4. before the said Earl could joyn with him Whereupon he dismissed his Forces and retired to Worksworth Castle The King after the Battel came to York and sent for the said Earl and being come pardoned him for his life but abridged him of his Liberty The next Parliament was summoned the 20 of October to begin at Coventry the 3. of December And the Earl had his writ of Summons This Parliament was prorogued till the 23. of November by new Writs as the manner then was returnable Crastino Hillarii then following But the Earl had no new Summons thither But thither he comes a Petitioner Speed saith he was abridg'd of his liberty but the Record saith he came before the King and Lords And not that he was a Prisoner as Gomeniz and Weston 1 R. 2. Nor that he was caused to be brought as a Delinquent sent for as Alice Peirce 1 R. 2. But that he came before the King Lords and Commons of Parliament And then the Chancellor told him that upon Wednesday last past he had been before the King and Lords and Commons in the same Parliament and besought the King as he had done before at his coming before him at York That the King would do him grace for his misprisions against him in not keeping his Laws and Statutes as by one Petition delivered by him in Parliament written in English The tenor whereof followeth To my most dreadful and Soveraign Leige Lord. I your humble Subject beseech your Highness to have in remembrance my coming into your Gracious Presence at York of your free will by your goodly Letters The which Petition per Commandment du Roy was examined by the Justices to have their Counsel and Advice therein But the Lords by Protestation made claimed the Judgment to belong unto them only in such Cases c. And so the Lords Tryed him and acquited him of Treason and Felony but found him guilty of a Trespass only which the King pardoned Here no Information was exhibited against the said Earl yet the Kings Counsel opened his Offences to the Lords else how could they appear Anno 7 H. 4. The King commanded the Lords Temporal in Parliament to advise what manner of Process should be made