by sickness or other occasion As 50. E. 3. n. 35. it is said The King ordains That from thenceforth no Woman should for Maintenance pursue Matters in the Kings Courts upon pain c. And then was the King sick at Eltham and could not come to Parliament as appears by n. 42. and it was only the House of Peers that made that Order So in Judgments though in Ancient Times they were mostly entred as given by the King yet it was the Lords House which was Curia Regis that gave them For we must know the KING hath a double Capacity of sitting in the House of Peers a Legislative Capacity when he hath in himself a Negative Voice to what even both Houses have concluded and done which signifies nothing without his Assent and his single Dissent makes it all null and void This is in passing Acts of Parliament and making of Laws The other is a Judicial Capacity when he will please to assist and be present at the ordinary Transactions of the House as heretofore was usual which alters not the Constitution of it as it is a Court gives it no more Power nor Jurisdiction then it had before he being then but in a manner as Chief Judge and not doing any thing singly but according to the Plurality of Opinions As when the Kings would in Person sit in the Kings Bench which they have in former times done where still all is said to be done Coram Rege though now he never come there and in Our Memory King James hath set in the Star Chamber I think no body will say the Star-Chamber then or Kings Bench before did or could vary from their ordinary Forms and Rules of Proceeding No more can the House of Peers alter their Proceedings or assume greater Authority by reason of the Royal Presence to take Cognisance of other Causes or do any thing which by the Custome and Usage of the House and the Law of Parliament it could not else have done But their Jurisdiction and their way of exercising that Jurisdiction is still one and the same And therefore 26. H. 6. n. 52. When the King had given a Judgment of himself without the advice of the Lords in the Case of William de la Pool Duke of Suffolk who stood impeached for Ireason banishing him the Realm for five years The Lords entred their Protestation against it as not done by their Assent and so no Act of the House And 5. H. 4. n. II. The Earl of Northumberland coming into the Parliament before the King and Lords and by Petition acknowledging to have done contrary to his Allegiance in giving of Liveries and gathering of Power for which he prayed pardon in regard he yeelded himself and came in to the King at York upon his Letters And the King delivering this Petition to the Justices to be considered The Lords made their Protestation That the Judgment appertained only to them And therefore as Peers of Parliament to whom such Judgement belonged in weighing the Statutes concerning Treasons and concerning Liveries they adjudged the Fact of the said Earl to be no Treason nor Fellony but only a Trespass finable to the King Whereupon the King received him into Grace and pardoned him his Fine All Power of Judicature in Parliament is then questionless in the House of Lords where the King alwayes is Personally or Virtually and the Judgment proceeds from them by the Authority and in the Name of the King For the Power of Judicature in Parliament is lodged in them together with the King as is declared 1. H. 4. n. 80. where it is said That the Commons were only Petitioners and that all Judgments appertain to the King and the Lords unless it were in Statutes Grants Subsidies and such like This hath ever been the Practice and Custom and Law of Parliament since there have been Parliaments and when this shall cease to be the Ancient way of Free Parliaments will cease likewise 1. R. 2. n. 30. Sir John de Cobham sheweth That by the delivery of a Ring of Gold for seisin to Edward the third he had setled the Reversion of several Mannors there named in the Crown and now prayes it may so remain according to his Intention divers Lords are examined the Judges Opinions are asked who declare it to be a good Livery and Seisin And so it is setled N. 32. William Fitzhugh a Gold-finer and Citizen of London exhibits a Bill of Complaint in the Name of the Cōmonalty of that Mystery against John Chichester and John Bolsham of the same Mystery for divers Oppressions done by them The Lords send for them examine them they deny those Oppressions And Fitzhugh refusing then to avow his Bill the Lords commit him to the Tower N. 35. Rober Hawley and John Shakell are by the Lords sent to the Tower for refusing to bring forth a Spanish Prisoner taken in Battel whom they had in their keeping and others laid claim to N. 41. Alice Perrers 〈◊〉 Pierce who bad been much in favour with Ed. 3. is questioned in the Lords House Sir Richard Scroope Lord Steward of the Houshold managing the Tryal for that contrary to an Order made by the King and Lords 50. Ed. 3. n. 35. That no Woman and she by Name should pursue any Matters by way of Maintenance upon Pain of perpetual Banishment and loss of the whole Estate She notwithstanding had perswaded King Edward to countermand Sir Nicholas Dagworth from going into Ireland when he had been ordained by the Council to go thither for urgent business which would have been profitable for the King and the Realm And an other Charge against her was for perswading the King to pardon Richard Lyons who had been Farmer of the Customs and for abuses and extortions had been censured in Parliament to forfeit his Estate and be committed to Prison she got all to be remitted and his Estate to be restored unto him even that part of it which the King had given to two of his own Sons for their lives The hearing of this Cause took up several dayes Many that had been Counsellors and Officers to the late King were examined as Witnesses At last she is found guilty and Judgment of Banishment and loss of Estate given upon her 3. R. 2. n. 24. The Case of the Earl of Pembrock and William le Zouch complaining of Thomas Roos for sueing them concerning Lands in Yorkshire and endeavouring to get a Tryall in the Countrey the Record is Desitant D'estre a Lissue du pays trop suspecieusement his desiring it being suspicious so they pray Que Ils partels Malueis Compassements Procurements en pais ne soient desheritez That they may not loose their Inheritance by such wicked practises and procurements The Lords upon this retain the Cause appoint some Persons to examine and report it But this President hath been cited before at large so I do but touch it here N. 22. Sir Philip Darcy complains That the Prior of St.
Johns of Hierusalem sues him in Chancery for the Mannors of Temple-hurst and Temple-newsom which Ed. 3. had granted to John Darcy his Father and produces a Deed shewing that the Priors Predecessor had passed the Fee of them to Ed. 2. The Lords order that Deed to be sent to the Treasurer and Barons of the Exchequer to examine the Kings Title and in the mean time stop Proceedings in Chancery This is more then taking Cognisance of a Matter Originally for they take it out of one Court where it depended and was undetermined and send it to be examined in an other Court which shews the Ascendant they had upon all other Courts 4. R. 2. n. 17. Sir Ralph de Ferriers had been seised by the Duke of Lancaster upon the Marches of Scotland upon suspicion of Treason for holding Intelligence with the French the Kings Enemies upon some Letters of his to several French Lords found and taken up by a Begger He was brought into Parliament before the Lords and put to his Answer He first desired Counsel then offered the Combate against any that would acouse him both were denyed him Then he applyed himself to his Answer And after several dayes hearing the Lords still remanding him to Prison he so well defended himself That the Lords suspected the Letters to be forged and therefore committed the Begger and bayled Sir Ralph delivering him to his Manucaptors 5. R. 2. n. 45. The Chancellor and University of Cambridg Petition against the Major Bayliff and Commonalty of the Town for breaking up their Treasury burning their Charter and by force compelling them to make Releases of some Actions they had brought against the Town and enter into Bonds to them for great Summs The Lords direct a Writ to issue out to the Maior and Bayliffs to appear in Person and the Commonalty by Atturney They appear The Chancellor exhibits Articles against them They being asked why their Liberties should not be seised plead to the Jurisdiction that the Court ought not to have cognisance of them They are told Judgment should be given if they would not answer Then they answer and the business is heard The Townsmen are ordered to deliver up those Deeds forced from the University which are presently cancelled The Town Liberties are seised into the Kings hands and part of them granted to the University Some are granted back to the Town for which they were to pay an increase of Rent Note here is a Plea to the Jurisdiction and that Plea Overruled 8. R. 2. n. 12. The Earl of Oxford complains of Walter Sibell of London for a Slander in having to the Duke of Lancaster and other Noble-men accused him of Maintenance The Lords hear the business Commit Sibell to Prison and give 500 Marks dammages to the Earl 9. R. 2. n. 13. The Case of the Duke of Lancaster complaining That Sir John Stanley had entred upon the Mannor of Latham which held of him and had not sued out his Livery in his Court of Chancery The Lords order him to sue out his Livery But this hath been already mentioned 15. R. 2. n. 16. The Prior of Holland in Lancashire complains of a Riot committed by Henry Trebble John Greenbow and others and of an Entry made by them into the Parsonage of Whit wick in Leicestershire John Ellingham the Serjeant at Arms is sent for them who brings them into the Parliament The Lords commit them to the Fleet. N. 17. The Abbot of St. Oseches complaineth of John Rokell for Embracery This Case hath been already cited N. 18. Sir William Bryan had procured a Bull directed to the two Archbishops to excommunicate some that had broken up his House and carried away Writings This was read in Parliament and adjudged to be prejudicial to the King and to be in Derogation of the Laws for which he is committed to the Tower N. 20. Thomas Harding accuseth Sir John Sutton and Sir Richard Sutton and layeth to their charge that by their Conspiracy he had been kept Prisoner in the Fleet Upon hearing of both Parties for that the two Knights were known to be men of good Fame The Lords adjudge him to the Fleet. N. 21. John Shad well complains against the Archbishop of Canterbury for excommunicating him and his Neighbors wrongfully for a Temporal Cause appertaining to the Crown and to the Laws of the Land The Lords hear the business find the Suggestions untrue and commit him to the Fleet. 1 H. 4. n. 93. Sir William Richill one of the Justices of the Common-Pleas who by express Order of Ri. 2. went to Calais and took the Examination and Confession of the Duke of Gloucester after murdered by Hall was brought a Prisoner into the Lords House the King present and by Sir Walter Clopton Chief Justice apposed And answered so fully shewing his sincere dealing that the Lords one by one declared him innocent And Sir Walter Clopton pronounced him such 4 H. 4. n. 21. The Case of Pontingdon and Sir Philip Courtney where the Lords direct the Tryal appointing what the Issue shall be and what kind of Jury shall be impannelled to prevent Sir Philip 's practices in the Country It hath been cited before at large 1. E. 4. m. 6. n. 16. The Tenants of the Mannor of East-Maine belonging to the Bishop of Winchester the King being in his Progress in Hampshire in the Summer-time complained to him of their Bishop for raising new Customs among them and not suffering them to enjoy their Old ones The King bids them come to Parliament in Winter and they should be relieved They come and the King recommends their business to the Lords They commit it to certain Justices to examine Upon their Report and upon mature Deliberation it was adjudged That the Tenants were in fault That they complained without cause and they were ordered to continue their said Customs and Services Here observe there was the recommendation of the King in the Case just as now in Skinners and this difference that a question of Custom betwixt Lord and Tenants was properly determinable by the Common Law and a Jury of the Visenage and this of a Trespass in the Indies to be punished in Parliament or no where which justifies the Proceedings there 43. Eliz. the 18th of December A Complaint was made to the Lords by the Company of Painters against the Company of Plaisterers for wrong done them in using some part of their Trade Their Lordships referred it to the Lord Maior and Recorder of London to be heard examined adjudged and ordered by them Which was all one as if they had done it themselves For it was done by their Authority and by their Order Qui facit per alium facit perse 18. Jac. The Lords took notice of the Proceeding of the House of Commons in the Case of one Flood whom they had convented before them for insolent and scandalous words spoken by him against the Prince and Princess Palatine examined Witnesses and given Judgment in the Cause
Subjects shall commit Treason though out of the Limits of this Realm it shall be tryed in any place that the King shall appoint by Commission under the great Seal So a special Commission was to be issued for it And several other Statutes were afterwards made of the same Nature But for Trespasses as this of the East India Company against Skinner there is no Act of Parliament to authorise the Prosecution at Common Law nor I think any Book Case to warrant the practice of it Book Cases against it there are many even for Trespasses in the Isle of Jersey though within the Kings Dominions because a Venire Facias could not go thither to summon a Jury from thence Mich. 42 as Mr. Prin cites it or 41. as Sir Edw. Cook E. 3. Coram Rege rot 109. An Inhabitant of Jersey complains to the King and Councel of false Imprisonment and several Injuries done him in the Island They send this Bill of Complaint to the Judges of the Kings Bench and there the Bill is dismissed Quia compertum est saith the Record quod negotium praedictum in Curia hic terminari non potest eò quod Juratores Insulae praedictae hic venire non possunt c. Other Cases there are of the same nature And if a Fiction could not help for Jersey being part of the Kings Dominions much less could it help for Forein parts where the King had no Authority at all Yet the House of Lords hath in all times exercised Jurisdiction upon Crimes done and committed in Forein parts as well as those within the Kingdome both Treasons and other Offences As in the Cases of the Lord Latimer for the loss of St. Saviour in Normandy and Oppressions done by him in Britany 50. E. 3. n. 21. Of William de Weston for the surrender of Outherwick in Flanders 1. R. 2. n. 38. John de Gomeniz for Ardes 1. R. 2. n. 40. Pierce de Cressingham and John Spickworth for the Castle of Drinkham in Flanders 7. R. 2. n. 17. The Bishop of Norwich for not doing Service beyond Seas according to promise and as he ought to have done for delivering up Graveling to the French not mustering his Army at Calice as he should have done and not having his Number compleat n. 18. Sir William Elinsham Sir Thomas Trevit Sir Henry Ferrers Sir William de Hurnedon and Robert Fitz-Ralph for delivering strong Holds and Fortresses for Money n. 24. John Hall a Servant to the Duke of Norfolk for Murthering the Duke of Gloucester at Calice 1 H. 4. n. 11. Sir William Richill for but taking the Examination of the Duke of Gloucester at Calice 1 H. 4. n. 93. And multitudes of others who could not have been tryed by the Common Law were tryed by the House of Lords And in truth a man may say the whole Case of Skinner in every point of it was only cognisable before them However it being out of all dispute even by the Confession of the Judges That some things in it are not tryable in Westminster Hall I hope it may be thought reasonable to leave as great an extent of Power to the House of Peers which is the supreme Judicature of the Kingdome as to the Court of Chancery where the ordinary practice is to retain a Cause when there is Equity in any part of it The Lords therefore Ordered the hearing of the Cause spent several daies in it and having with much patience heard all that could be said on both sides appointed a day to consider what was fit to be done super totam materiam Upon which day after a solemn debate they came to this Resolution only in general That Thomas Skinner was to be relieved by that House And referred it to a Committee to consider what damages he had sustained by the Governour and Company trading to the East Indies and to report their Opinions what Recompence was fit to be given him for the same Whilest the Business was under the consideration of the Committee and before the House of Peers had made any Determination of it a Petition was said to be presented by the East India Company unto the House of Commons which I will set down word for word before I give it any Epithete and upon reading it I think every unprejudicate man will say one cannot give it an Epithete bad enough the Petition was thus TO THE HONOURABLE The Commons of ENGLAND in Parliament Assembled The Humble Petition of the Governour and Company of Merchants of London trading to the East Indies Humbly sheweth THat Thomas Skinner lately exhibited a Petition to the Right Honourable the Lords Spiritual and Temporal in Parliament assembled against your Petitioners many of which are and were Members of this Honourable House when the said Petition was exhibited for Injuries pretended to be done by your Petitioners Factors in the East Indies in seizing his Ship Goods and Money and dispossessing him of a small Island there all which Matters excepting what concerns the Island are Matters clearly determinable in his Majesties Ordinary Courts of Law as by the Judges attending their Lordships hath been resolved and reported And for the Island the same is parcel of the Dominions of a Foreign Prince and so the Right thereof only determinable by the Laws of that Prince That though the Petitioners did humbly tender a Plea to their Lordships for that the Petition was in Nature of an Original Complaint concerning Commoners only and not brought to their Lordships by Writ of Error or Bill of Review or any way of Appeal and that the Matters therein were relievable in the Courts of Westminster Hall and thereupon prayed the Judgement of that High Court whether it would please to take further Cognizance thereof Yet their Lordships have been pleased not only to give a hearing to all the Matters in the said Petition contained but have denied to gran◠the Petitioners a Commission or so much a◠time to send for their Witnesses now inhabiting upon the place where the Injuries were pretended to be done and without whos◠Testimony it was impossible for the Petitioners to make their Defence That upon the said hearing their Lordships were further pleased to appoint a Committee to assess damages against your Petitioners which Committee is now proceeding thereon accordingly whereby several Members of this Honourable House who are of the said Company as well as others your Petitioners may be highly detrimented All which proceedings as your Petitioners humbly submit to your Honourable Judgements are against the Laws and Statutes of this Nation and Custome of Parliament In tender Consideration whereof and for as much as these unusual and extraordinary Proceedings of their Lorships are not only grievous to your Petitioners at present but may also be a President of ill Consequence to all the Commons of England hereafter and for as much as your Petitioners have no way of Relief in this Case otherwise than by making their humble Addresses to this Honourable
a desire to relieve them But secondly we must distinguish between a Fact not being a Crime in the eye of the Law which is neither Malum in se nor Malum prohibitum and when the Fact it self being odious and punishable by all Laws of God and Man only a Circumstance as the Place where it was Committe dputs it out of the Power of the ordinary Courts of Justice to take Cognizance of it which are kept to formes and may not trangresse them In the first Case the House of Lords can not punish that for a Crime which the Law doth not make a a Crime but in the second Case God forbid there should be such a failer of Justice in a Kingdome that fellow subjects should robb and worry and destroy one an other though in Forrein parts and there should be no punishment for the wrong doer nor Relief for the party wronged when they come home For then the King might be deprived of many a good subject the Land loose many of her people Trading receive much prejudice and so King and Kingdome suffer great loss and all without remedy But then say the House of Commons Where the Law hath provided and there is an ordinary remedy an extraordinary ought not to be tryed to this the Lords Answer that their House is not an extraordinary remedy but the ordinary remedy in extraordinary Cases and this of Skinners was so both in point of difficulty and point of Compassion And to what is said That it is the Interest of all men in England to be tryed by Juries and there is remedy against willful Juries by Attaint but here is no remedy nor no Appeal It is Answered That the Court of Chancery disposeth of mens Estates without a Jury Every Court of Justice Every Judge in his Circuit sets Fines on mens heads upon several occasions without a Jury Many are tryed for their lives and their Liberties which is more then Estate in the House of Peers upon an impeachment of the House of Commons who are not a Jury nor are sworn therefore that Assertion holds not That all men in all cases are tryed by Juries And for matters of Appeal there doth lye one to the next Parliament or the next Session But it will be said That is to the same Persons And what hopes of any remedy For they wil make good their own Act To this is Answered It is what the Law of the Land hath established We must not be wiser then the Law It is what our Ancestors thought sufficient what hath been the practice of all time And if we leave Posterity in as good a Condition as our Ancestors left us they will have no Cause to Complain Then we must presume that Courts of Justice will do Justice and will do Right that upon better reason shewed upon the Appeal they will alter their minds and give an other Judgement They have done so heretofore How many Judgements of Parliament have been reversed by succeeding Parliaments And where there is Cause for it we must hope they will do so again Then where as it is said That the greatness of the Charge and the Inconveniencies of attending Causes in the Lords House is an Argument against their Judicature They Answer That it is not the House of Lords that appoints such great Fees to Counsel it being left to their Consciences that take them and to the will and discretion of their Clients who give them and who without an Act of Parliament to restraine it may give what they will or rather what they must However The Lords say that the charge in Chancery is greater there having been some times forty fifty Orders made in one Cause and the delay much greater so as some Causes have lasted there very many years And even at the Common Law how many Verdicts have been given in one Cause contrary Verdicts one for the Plaintiff an other for the Defendant Contrary Rules of Court the Judges give a Rule one day and three daies after give an other clean contrary As an Instance of it can be given but of last Trinity Term in the Kings Bench. These are Inconveniences that lye not in the House of Peers But admit there were Inconveniences Many Laws are found inconvenient which yet are put in execution and all obedience given to them whilest they stand unrepealed And the Question is not now of Convenient or Inconvenient but matter of Right Is it the Right of the House of Peers hath it still been the Custome and Usage of Parliaments and consequently the Law of Parliament that they should exercise such a Power of Judicature If it be so as it is and will be sufficiently proved then the point of Conveniency or Inconveniency is out of doors Well may it be a motive to alter it by the Law But we will play with them at their own Weapon and joyn Issue upon that point that the Inconveniency is but imaginary and so farr from an Inconvenience that it is the great advantage of the subject that it should be so As well to give relief in Cases otherwise unrelievable as to assist and help on the administration of Justice when sometimes the greatness and power of some persons would else bear down or much obstruct and hinder the Proceedings of Inferior Courts An objection also was raised How shall the Lords Judgements be executed after the Rising of the Parliament For so the subject may be deceived And when he thinks that with much Charge he hath made an end of his business he is never the nearer And it is Answered that the House of Peers is not as the House of Commons whose Orders are only of force whilest they are sitting they have power sufficient to require Obedience to their Judgements Nor hath it been knowen that ever any Judgement of the House of Peers was not submitted unto and obeyed till now in this Case of Skinners that the East-India Company stands out in defiance and refuseth all Obedience to it In 15 R. 2. N. 17. in the Case of the Abbot of St Oseches complaining against John Rokell for divers Embraceries and for not obeying an Order of the Duke of Lancasters made therein the Lords Confirme that Order and charge the Lord Chancellor to see Rokell perform it Why may not the Lords do the same still if they doubt of Obedience to their Orders But there was never question made of it before And there are many Presidents of Orders given to persons to act some thing in the Intervalls of Parliaments to give an account of it to the Lords at the next ensueing Parliament which shewes that their Authority stil continues to empower those persons to act and to execute their Orders even when the Parliament is risen 15 E. 3. N. 48. The Bishops of Duresme and Salisbury the Earl of Northamton Warwick Arundell and Salisbury are appointed to take the Answer of the Archbishop of Canterbury and to report it to the next Parliament And 51 E.
3. N. 96. It is there specified How in the Parliament before one Hugh Staffolk had been accused of divers Extortions and that a Commission was then granted to the Earl of Suffolk and Sir John Cavendish to inquire into it who so had done and had found him guiltless by 18 Enquests which Sir John Cavendish did in that present Parliament witness to be true By all this it appears that the Authority of the House of Peers ends not with the Parliament but their Judgements still continue in full force and power And they may appoint Persons to see them executed if they please And whereas the House of Commons doth not deny them a power of Judicature upon Writs of Error and upon Appeales Will not the same objection lye as well against their Judgements in those Cases For seldome that they be put in execution before the Parliament rise so it takes away their whole Judicature as in truth all the other objections would do could they be made good And whereas it was said That none of the Kings Courts can give remedy where the Kings Writ can not run And where his Majesties Soveraignty doth not come the Jurisdiction of the Peers can have no place It was Answered that there Chiefly the Power of the House of Peers is to give remedy because it only can As for Treasons till the Statutes of 26 H. 8. C. 13.32 H. 8. C. 2. and 5 E. 6. C. 11. which have made them tryable within the Realm and all Misdemeanors committed in Forrein parts which never were nor yet are tryable at the Common Law Of this there are multitudes of Presidents Gomeniz Weston Segrave Hall Richill c. And here within the Kingdome the the Kings Writ doth not originally run in all places as for example in the Counties Palatine yet no man will deny the Authotity of the Lords in Parliament taking place there 9 R. 2. N. 13. The Duke of Lancaster Complaines of Sir John Stanley for not suing out his Livery for the Mannor of Latham in the Dukes Court of Chancery and yet entring upon it They declare his Entry unlawful and Order him to sue out his livery in the Dukes Court. The Kings Writ did not run there but the Authority of the Lords did Another Objection was That all Proceedings ought to be in Latin and nâ— Record to be in English But the Lords had thought That none had ever yet doubted but the House of Peers had been a Court of Record where all the Proceedings Orders Judgements have been in English ever since H. 6â—… time All Acts of Parliament in English All impeachments even those brought up by the House of Commons the Proceedings and the Sentence all in English The Ancient Records were in French and the Pleadings likewise till the Statute of 36 E. 3. Which appoints Pleadings to be in English and to be entred and enrolled in Latin so the Print saith but in Sir Robert Cottons Abridgement of the Records it is observed that the Record it self warrants no such thing Then the Chancery Proceedings are all in English The Pleadings Orders and Decrees Yet it will not be denied but that is a Court of Record Sir Edward Coke who alone is of an other Opinion concerning the Chancery and upon that ground because the Proceeding is in English yet makes the House of Commons it self a Court of Record where every body knowes all is in English Jnst 4. part p. 23. so he doth not sibi constare The last Objection and indeed the the Chief one if true was That it deprives the Subject of the benefit of Magna Charta which will have all men to be tryed by their Peers or by the Law of the Land And the 25 of Ed. 3. C. 4. that none shall be apprehended upon Petition to the King or Counsel and Counsel here they interpreted to be the House of Lords but upon inditement or presentment or by Writ Original And the 42. of E. 3. which is to the same purpose It was urged further that no Writ was ever made returnable Coram Dominis Spiritualibus et Temporalibus And it was said in Regard of the Island being in a Forrein Princes Jurisdiction that it ought to have been done by Act of Parliament for that no Court of his Majestie can give remedy where his Majesties Writ can not run nor can the Jurisdiction of the House of Peers have place there An other observation they had upon Lex Terrae in Magna Charta That in the Arguments of the Kings learned Counsel 3. Car. They made Lex Terrae to be the pleasure of the King And the Lords were desired to consider upon this if by arguing that the Proceedings of their House were maintained to be Secundum Legem Terrae it may not as well be said that Magna Charta will have men to be tryed Per Judicium Parium aut per Legem Terrae That is by the will of the Lords This is the substance of what was most materially urged against the Lords at that Conference Some other things were said rather to entertain the By-standers then for any thing else as the question asked How the Lords should see further beyond sea then other men Indeed the Lords thought they might see as farr as other men and as farr as the Court of Chancery or any other Court but never undertook to see further But they think if some may have their wills they may be laid so low that they shall then see but a very little way but that is not yet And another pretty Dilemma was made which was this Are the Lords bound to recieve all Petitions or not if bound they may refuse none for Magna Charta saith Nulli negabimus and the King is Debitor Justitiae to all his subjects If they be not bound then they must be partial to receive some and dismiss others But this Argumentum bicorne hurts with neither horne For the Lords in these very Presidents brought by the House of Commons in Ed. 1. Ed. 2. time did not deny Justice when they sent the Petitioners unto those several Courts where they should receive it one to the Chancery an other to the Common Law and directed one to bring such an Action another a differing one according to their several Cases And in those multitudes of Presidents brought by the Lords where Causes have been retained and determined in that House they can not justly be charged with Partiality when they are moved thereunto by some thing extraordinary in those Cases which requires their Relief and that it can not be had else where And a Question may be put on the other side whither it can be believed that Partiality was imputed to all the Parliaments heretofore which at their first sitting appointed Committees Tryers of Petitions for England for Ireland for Gascony nay for Flanders where the King had no Dominion and sometimes in general for all places beyond the Seas to examine which were fit to be received
redress what was amiss and punish those that had offended All the Presidents shew it so to have been and not one no not one to the contrary 5. H. 4. n. 74. The Commons Petition That all such Persons as shall Arrest any Knight or Burgess of the Commons or any of their Servants and know them so to be do Fine at the Kings Will and render treble Damages to the Party grieved The Answer is There is sufficient remedy for the Cause Which remedy it seems was That the King and Lords would set them at Liberty which was as they conceived sufficient For 8. H. 6. n. 57. Among the Petitions of the Commons one is That William Lake Servant to William Mildred Burges for London was Arrested and carried to the Fleet upon an Execution and they pray he may be delivered according to the Priviledge of their House It is granted but withal Authority is given to the Chancellor to commissionate Persons to apprehend him again after the Parliament 39. H. 6. n. 9. The Commons complain by Petition to the King and Lords That Walter Clerck one of their Members Burgess for Chippenham in Wilts had been Outlawed and put in Prison and pray That by the Assent of the King and Lords he may be released Which was granted and their Member set at Liberty 14. E. 4. n. 55. The Commons among their Petitions bring up one of a Member of theirs William Hide Burgess likewise for Chippenham being taken in Exeoution for Debt and a Prisoner in the Kings Bench praying he may be delivered by a Writ of Priviledge out of the Chancery the which is granted with this saving That bis Creditors may renue their Execution after the Parliament 17. E. 4. n. 36. At the Petition also of the Commons the King with the Assent of the Lords Spiritual and Temporal grants That John at Will Burgess for Exceter condemned in the Exchequer during the Parliament upon eight several Informations at the Sute of John Taylor of the same Town shall have as many Supersedeas therefore as he will until his coming home after the Parliament One memorable Case of this Nature must not be omitted which hapned 31. H. 6. n. 25 26. c. Thomas Thorp Chief Baron was Speaker of the House of Commons and in an Interval of Parliament the Parliament being upon a Prorogation he had been Arrested and carried to Prison at the Duke of York ' s Sute who had got a Judgement against him in the Exchequer upon an Action of Trespass for carrying away the Dukes Goods from Durham-House The Parliament meeting the House of Commons send up some of their Members to make Complaint to the King and Lords That their Speaker was a Prisoner and desire his Release The Duke of York gives the Lords an account of the business They ask the Judges Opinion in the Point The Judges Answer was in these words It hath not been used before time nor becomes it us to determine matters concerning the High Court of Parliament which is so high and mighty in its Nature that it is Judge of the Law and makes that to be Law which is not Law and that to be no Law which is And the Determination of its Priviledges belongs to the Lords in Parliament and not to Justices But to declare the Use in Lower Courts they said That as Writs of Supersedens of Priviledge of Parliament were brought unto them concerning any particular Member of Parliament who had been Arrested so it were not for Treason Felony Surety of the Peace or for a Condemnation before Parliament they did alwayes release him that be might freely attend the Parliament After which Answer made It was by the Lords Spiritual and Temporal agreed assented and concluded That the said Thorp should remain in Prison notwithstanding his being Speaker of the House of Commons or any other Priviledge of Parliament And they Ordered the same to be declared unto them that were come from the Commons by Walter Moyle a Serjeant at Law because it was Matter of Law but in the presence of the Bishop of Ely and many other Lords And then the Bishop of Ely was to charge them in the Kings Name to chuse an other Speaker This was accordingly performed And the House of Commons did chuse an other Speaker Sir Thomas Charleton in the place of Thomas Thorp and sent some Members to acquaint the Lords with it and the Lord Chancellor answered The King likes him well It is to be noted That the King lay then sick at Windsor and yet all is done in the Kings Name as if he had been present These Presidents shew That the House of Commons did not in those times exercise any Jurisdiction nor themselves lay any punishment upon those that broke their Priviledges and that the Sheriffs and Bayliffs of London in that Parliament of 34. H. 8. were the first who felt any effects of their Justice in that kind Nor after that did they constantly put that Power in Execution and for some time it seems they absolutely waved it For the very next year the 35th of H. 8. One Trewinnard a Burgess for Cornewall had been imprisoned at the suite of one Skewis and was delivered onely by a Writ of Priviledge But Skewis not sent for by the Serjeant at Arms to be committed and punished by the House as the use is now So far from that That the Executors of Skewis in the Trinity term of the 36th of H. 8. brought their Action of Debt against Chamond the Sheriff of Cornewall for the Escape but were cast in their Sute and the Priviledge allowed as Dyer mentions it in his Reports p. 59. And in the 18th of Queen Elizabeth a Servant of one Mr. Hall a Member of the House being Arrested upon Complaint made to the House it was referred to a Committee to consider of the Business and how he should be released who made their Report That it could be only by a Writ of Priviledge as appears by the Journal of that Parliament And there is some reason to believe That they never or very rarely sent for by their Serjeant or medled with the Persons of such as broke their Priviledges by arresting or misusing their Servants and Attendants till 43. Eliz. For I find in a Journal of that Parliament which I have by me That a Complaint being made to the House How a Servant of one Mr. Cooke a Member of the House was arrested that President was urged of the 34th of H. 8. And it was said that the House had committed the Sheriffs of London and the Bayliffs for abusing their Serjeant and for arresting of Ferrers Whereupon it was then resolved and ordered That the Serjeant attending the House should go to Newgate and bring away both the Prisoner and his Keeper and likewise command the Bayliff who made the Arrest and the Person at whose suit it was made to appear before the House This was done the Prisoner discharged and the Bayliff and he who