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
then Per Legem Terrae is all one with Per Legem Angliae or secundum Legem et Consuetudinem Angliae and what ever is done secundum Legem Angliae is done Per Legem Terrae And in his 1 Inst l. 1. c. 1. Sect. 3. He tells us what Lex Angliae is he saith there are divers Laws within the Realme of England and reckons them up Lex et Consuetudo Parliamenti is in the front of them He names many more the Civil Law by which the Court of Constable and Marshall and the Court of Admiralty and Ecclesiastical Courts do act the Law of War for the Court Martiall to act by the Law of Merchants the law of Stanneries Particular Customes in several places of the Kingdome Statute Lawes established by Authority of Parliament Whoever and whatever is tryed by any of these Laws be it for life Lands or goods it is still according to Magna Charta and though not Per Judicium Parium yet Per Legem Terrae The Law and Custome of Parliament is one of these and the Lords now acting agreeably to that act agreably to Magna Charta and that they have acted so is I think sufficiently proved all ready and will be further hereafter when we shew you Presidents for it from the beginning of Parliaments So for the other Statutes of the 25 of E. 3. c. 4. and the 42. c. 3. They do not at all concerne the House of Peers and were made only to prevent Vexation by Petitions and false accusations before the King and his Privy Counsel as appeares by the Preambles of those Statutes Though the Gentlemen of the House of Commons who managed the Conference were pleased to give them an other Interpretation and to say that the Petitions and suggestions to the King or his Counsel which are condemned by those Statutes are to be understood of those brought to the King and House of Lords But can it be rationally believed That the House of Peers of those times should themselves make so many Lawes pass so many Acts of Parliament five in the space of 17 years the 25 of E. 3. c. 4. the 28 c. 3. the 37 c. 18. the 38 c. 9. the 42 c. 3. all of them prohibiting that any man should be apprehended imprisoned or disinherited upon an accusation or suggestion to the King or his Counsel and enjoyning all Proceedings to be by Original Writ or by Inditement or by Presentment of good and lawfull People of the Neighbourhood And they know themselves to be intended by those Acts and yet still should act contrary to them judge and determine so many Causes both Criminal and Civil as they did from time to time Nay can it be believed That the House of Commons in those daies would bring up Impeachments against men to have them tryed at the Lords Barr if they did then conceive that those Acts of Parliament did forbid the Lords to meddle For though the Commons House are sometimes called the Grand Inquest of the Kingdome to present the Grievances thereof it is presumed they will not say that their Presentment is the Presentment intended by those Statutes For the Presentment mentioned there is the very description and true Character of your Country Juries The words of the Statute are The Presentment of good and lawful people of the same neighbourhood where such Deeds be done And can any man think that this is to be understood of the House of Commons No certainly What then is it that makes the Lords Proceedings upon the Impeachments of the Commons to be Legal and not contrary to those Acts of Parliament Since there is neither Writ nor Inditement nor Presentment and yet men are brought to tryal condemned and executed by their Judgements but only this that it is the Common Law of the Land being the Ancient unquestioned and undoubted Law and Usage of Parliaments And thereby is there a clear demonstration of the true meaning of those Statutes that it was the Regulation of the Kings Privy Counsel they aimed at and not of the House of Lords that Counsel of which Sir John Lee was one in that 42 of E. 3. n. 23. who was tryed and censured by that very Parliament in which that Act was made One of the Articles against him was That being of the Kings Counsel and Steward of his House be caused sundry men to be attached and and brought before him and made them answer singly to him as if it had been to the body of the Counsel He was fined for it and committed to the Tower The Lords John Nevil was likewise of this Counsel for misbehaving himself in it Judgment of Imprisonment and loss of Lands goods and Office was given upon him 50 E. 3 n. 34. And in the same Parliament n. 18. The Lord Latimer was accused for divers miscarriages being a Counsellor and for them he was by the Bishops and Lords committed to the keeping of the Marshall of England and adjudged to make Fine and Ransome at the Kings pleasure It is true he was enlarged presently by the Earl Marshall one Arch-Bishop three Bishops the Prior of St. John three Earls fifteen Barons and thirteen Knights being his Manucaptors but the Commons desired further that he might be no longer of the Kings Counsel which was granted And this was not to put him out of the Lords House for he continued still a Member there and had his Writ of Summons to come to the next Parliament in the 51 th year of that King There is nothing more clear then that those Statutes are all to be understood to mean the Privy Counsel and so did the two Houses of Parliament interpret them 3 Car. in their Petition of Right where the expression is That against the tenor of those Statutes divers were detained by his Majesties special command certified by the Lords of the Privy Counsel and one may bodly affirme that never any Statute or Act of Parliament did term the House of Lords the Kings Counsel So that Article of Magna Charta urged likewise at the Conference Communia Placita non sequantur nostram Curiam concernes not them neither It was to fix the Court of Common Pleas which as all other Courts was before that Ambulatory and followed the King where ever he was if he was in the Kingdome and the Writs were made returnable Coram nobis ubicunque fuerimus which was a great Grievance to the subject and cause of many discontinuances in sutes The following words clear it Sed teneantur in aliquo certo loco Now the place of the meeting of the Parliament was alwaies certainly known being expressed in the Writ of Summons which shewes it was not meant for them And whereas it was said That in Cases of Freehold there is no Proceeding without an Original Writ Scarse any that walkes Westminster-Hall but knows the contrary and the Course of Proceeding to be so fart otherwise as that not one Tryal for Land of forty comes on upon
his Father deceased And that a Statute of 1600 l entred into by the said Thomas Bagshaw to John Gell Esq shall be discharged and made void And that Thomas Bagshaw shall make a Release to the said Edward of all Debts and Demands The sixteenth of June 41. The Lord Audley Complains by Petition That the Lord Cottington kept from him the Mannor of Fonthill and prayed Relief therein Upon hearing Counsel on both sides the Lords dismissed the Petition The twenty third of June 41. The Committee for Petitions Reports That Mistris Walter had preferred a Petition setting forth That William Walter her Husband will not permit her to cohabit and dwell with him nor allow to her and three Children any thing for their support The Lords Order her to repair to her Husband and offer to live with him and if he shall refuse to admit her that then he shall allow her 60 l per annum for her Maintenance The 21 th of July 41. A Petition was exhibited before the Lords by sundry Officers and Clerks of the Court of Common Pleas shewing That the disposing of the Offices of Protonotaries Phitizers Exigenters and other Offices of the said Court had time out of mind belonged to the Chief Justice of that Court for the time being but several Grants and Patents had been obtained from his Majesty for the disposing of the said Offices and therefore they prayed That all those Grants and Letters Patents might be recalled The Lords heard Counsel upon it and after mature deliberation declared That the said Offices do of Right belong to the disposition of the Lord Chief Justice of the Common Pleas And the Grants formerly made by Letters Patents of the said Offices to be Illegal and void And Ordered the said Patents to be brought into the House There is likewise in the Journal Book of that Parliament mention made of a Petition of one Thomas Smithick preferred the tenth of June 1641. Complaining of wrongs sustained from the East India Company and likewise of a Petition from the East India Company full of Respect and Submission to the House of Lords and praying a longer day then it seems was appointed for hearing the Merits of the Cause which the Lords granted and Ordered all such Books Certificates and Writings as were in the Custody of the Company concerning that business should be produced and Smithick to peruse and take Copies of them What was more done upon this Petition of Smithicks appears not by the Journal Book probable they compounded the business among themselves But however it is observable the different Spirits of the East India Company then and of this now The Modesty of that and the Carriage of this so far differing In those times no question was made of the Power of the Lords in point of their Judicature nor no Complaint against their practice of it Yet we see the frequency of it in Causes of all Natures Criminal Civil Mixt between King and Subject between Subject and Subject no Protection no Priviledge did exempt any body from their Jurisdiction The Lords at the Conference as they said to the Gentlemen of the House of Commons were the more Copious in the enumeration of these later Presidents especially those of 1640 and 1641. not that they thought themselves at all to stand in need of them the antient ones before produced shewing the usage all along from the very first and best times which in their Lordships Opinions were of much more weight sufficiently convincing but the House of Commons having a little before at an other Conference delivered it for a Maxim That the later Presidents were best and having accordingly insisted upon one single President of the same Parlialiament of 1640. to Oblidge the House of Lords to commit a person upon a general Impeachment of Treason without special Matter shewn and opposing that one President to what their Lordships alleadged to the contrary and made appear to have been the usage of all former times no Record being of any Man ever sent to Prison by the House of Peers without a particular Crime expressed in the Impeachment of some Act done by him before the Earl of Strafford which was the President stood upon This made the Lords heap up so many Examples of the Proceedings of their House in that Parliament of 1640. in the point of Judicature to use it as Argumentum ad heminem and what the House of Commons could no wayes except against themselves having declared it to be of greatest Authority Until Henry the Eights time the very House of Commons was to be beholding to the House of Lords for their Administration of Justice even concerning their Members as the only Judges and Conservators of their Liberties and Priviledges Themselves could not before that have punished any one that had never so much offended them So far were they from exercising a Power of Commitment or of inflicting any punishment for Crimes at large and against the Laws of the Land where neither the Offence nor the Offender had particular relation to their House as in these later times hath been often practised by them But as I say the first time that ever they punished any and it was for breach of Priviledge was in the Parliament 34 H. 8. in the Case of George Ferrers Burgess for Plimouth who was arrested and put in the Counter The House informed of it sent their Serjeant to demand their Member not so much as to summon Sheriff or Bayliff that made the Arrest or Party at whose suit it was made and less to bring any of them as Delinquents to the Bar as now a dayes nor could they obtain that But their Serjeant coming to the Counter found resistance the top of his Mace was broken off his Man knocked down and he glad to get off without the Prisoner So back he comes to the House yet sitting and makes his Complaint They presently all rise with their Speaker come up to the House of Lords and the Speaker makes the Complaint to Sir Thomas Audley Lord Chancellor sitting on the Wooll-sack The Lords judge the Contempt to be very great and refer the punishment of it to the Order of the House of Commons Then indeed they return to their House and send for the Sheriff of London the Clerks of the Counter all the Officers there that had a part in the fray with their Serjeant one White at whose Sute Ferrers was Arrested and the Bayliffs that did Arrest him all to appear personally before them at eight of the Clock next Morning and when they came they sent some of them to the Tower some to Newgate where they continued till they were delivered at the suite of the Lord Major We do not find that before this the House of Commons committed any body no not for the Breach of their Priviledges nor were themselves so much as Judges of the Elections of their Members but were fain to come up to the Lords and pray their aid to
Pasch le Conseil qil moy averont donnez et fray envers vous ceque fere deveray Sir I am your liege man for the Kingdome of Scotland and do pray that as to what you have proposed unto me which concernes the People of my Kingdome as well as my self you will have patience till I can speak with them that I be not surprised for want of Counsel seeing those who are here with me will not nor dare not give me their advice without the rest of the Kingdome And when I shall have advised with them I shall give you for Answer at your first Parliament after Easter that which they shall counsel me and shall do unto you that which I ought to do This request of his did King Edward grant the Record saith Et Dominus Rex habito super hoc Consilio ad Rogatum praedictum praedicti Regis Scotiae et etiam ad Instantiam Procerum et Magnatum de Consilio suo et Gratia sua speciali et similiter de Consensu praedicti Magdulphi concessit ipsi Regi Scotiae supplicationem suam et diem ei dedit ad Parliamentum suum post Pascha viz. in Crastino Sanctae Trinitatis c in omnibus in eodem statu quo nunc Idem dies datus est praefato Magdulpho Et per ipsum dominum Regem dictum est praefato Regi Scotiae et injunctum quod habeat ad praefatum terminum praedicta Brevia quae cognovit se recepisse ut supra dictum est He must not forget to bring the Writs with him 1 R. 2. n. 29. A Scire facias is awarded against the Earl of March to appear before the Lords at the next Parliament and to abide further Order And 2 R. 2. n. 33. the Sheriff of Shropshire makes his return that the same Earl was not found in his Bayliwick it seemes he was dead for there was then an other Scire facias ordered to warne his Son who was then Earl to be and Answer at the next Parliament after 13 R. 2. n. 12. Upon a complaint of the Bishop and Dean and Chapter of Lincolne against the Mayor and Townesmen for some wrongs done them in Execution of their Charter by order of Parliament a Writ was directed to the Mayor and Bayliffs of the Town to appear at a certain day before the Lords with Authority from their commonalty for abiding their Lordships determination they appear but not coming with full Power they are adjudged in Contempt By the same Parliament such a Writ is directed likewise to the Mayor and Bayliffs of Cambridge upon 〈◊〉 Petition and Complaint from the Vice-Chancellor and Scholars and they run the like fortune to be adjudged in Contempt for the like cause So then there are Writs made returnable in Parliament And many other examples may be given and some more will be given in this Discourse and Presidents cited upon other occasions where Writs have been Issued so returnable Which shall be observed as we go along And these few shall in this place suffice to disprove that Assertion Nor indeed was there any thing said on that side that did not receive a full and satisfactory Answer For what was said of an Act of Parliament to give Skinner relief for his Island doth in truth deserve no Answer for it were ridiculous to think an Act of Parliament or any thing else but an Army could put him into Possession of his Island again And it would be altogether useless unto him could he so obtaine it his Plantation there being utterly destroyed and all his goods spoiled and lost both there and at Jamby so as it would be impossible for him to carry on his trade to any advantage Therefore it is Reparation and Satisfaction for his Damage which he must have And that is not the work of an Act of Parliament but of a Court of Judicature That advice then is not to be followed and so we will leave it It now remaines but to set forth the Presidents which the Lords did on their part alledge with some few more Antient ones which shall be added for the Vindicating and Asserting of their Right unto this never before controverted point of their Judicature in all Cases of what nature soever when some thing extraordinary in those Cases did induce them to exercise it Of which they were the sole Judges that being a Trust lodged in them by the very Frame and constitution of the Government In the black Book in the Tower which is Printed by the Name of Placita Parliamentaria 30 E 1. F. 231. is the Case of Sir VVilliam Paynell and Margaret his Wife suing for Dower upon the Lands of John Cameys who had been Margarets former Husband and whom she had left he yet living And they now desiring tobe tryed by their Country upon the point of Adultery and the Lords not allowing of it This hath been at large expressed before therefore I only mention it now In the same Book p. 266.33 Ed. 1. The Case of Nicholas Segrave who was tryed in Parliament for leaving the Kings Army then in Scotland and goeing over into France to fight with one John de Crumbwell upon a falling out between them they being together in the Kings Army This was a case not tryable in VVestminster-Hall nor punishable in any ordinary Court of Justice by the Common Law of England yet the House of Lords could try him and adjudge him worthy of death And one thing more is observable in that Record That a Writ is Issued to the Sheriff of the County to take foure Knights with him and in their presence to Summon Segrave Quod esset Coram Domino Rege in proximo Parliamento suo apud VVestm ad audiendum voluntatem ipsius Regis et ad faciendum et recipiendum ulterius quod Curia Domini Regis consideraret in Praemissis So here is a Writ returnable in Parliament and the Sheriff did accordingly make his returne that he had Summoned and charged him Quod esset coram Domino Rege in isto Parliamento nunc juxta formam et Tenorem Mandati praedicti c. It was therefore a gross mistake to say That never any Writ was made returnable in Parliament as it was likewise one to say That the House of Peers could give no remedy where there was not remedy at Law this President proving the Contrary to both 21. Ed. 1. p. 135 136 c. The Arch-bishop of York is questioned in Parliament for excommunicating the Bishop of Duresme The ground of the Excommunication was For that the Bishop of Duresme had imprisoned two Persons employed by the Arch Bishop to cite the Bishop to appear before him The Arch Bishop appeals Et dicit quod de sententia a Canone lata per ipsum declarata in Curia Domini Regis non debet respondere The House of Lords goes on The other side alleadging That the Bishop in his Temporal Capacity as Count Palatin had committed those men
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.
which they look'd upon as deeply trenching upon the Priviledges of their House all Judgments properly and solely belonging to them Thereupon they sent a Message to the House of Commons and desired a Conference At which Conference the Commons confessed That out of their Zeal they had censured Flood But they left him now to their Lordships and hoped their Lordships would censure him In order to which they sent up a Trunk of Writings concerning his Case Then the Lords proceeded to the hearing of it examined several Witnesses and heard all Flood could say for himself which done they adjudged him Not to bear longer the Arms of a Gentleman To ride with his face to the Horse tayl to stand upon the Pillory with his Ears nailed to be whipped at a Carts tayl to be fined Five thousand pounds and to be imprisoned in Newgate during life 21. Jac. Thomas Morley was convented before the Lords for delivering a Scandalous Petition to the House of Commons as himself affirmed against the Lord-Keeper Coventry Upon examination it appeared that it had not been presented to the House of Commons only to their Committee of Grievances that he had published very many Copies of it even since his being convented before their Lordships They adjudge him to be imprisoned in the Fleet to pay 1000 l Fine to stand with his neck in the Pillory to make his Submission and Acknowledgment at the Barr. 22 Jac. Mary Brocas petitioned the Lords to be relieved for a Debt of 1000 l due unto her by Bond from the Muscovia Company Upon hearing both sides their Lordships order the Company to pay the Debt with 5 l per cent Interest out of the Leviations which the said Company had made among themselves for the payment of their Debts The same Parliament May 28. Thomas Pynckney petitions the House in the behalf of himself and other Creditors of Sir John Kennedy to be relieved for Debts owing to them from Sir John by the sale of Barn-Elms Lands in the possession of his Heir John Kennedy The Lords upon examination of the business find cause and so they order it That Barn Elms should be sold to the best value and the Profits to be sequestred in the mean time into indifferent hands And that a Recognizance of 2000 l in which Pinckney stood bound in Chancery should be withdrawn and cancelled The same Parliament again Grizell Rogers Widow petitions the Lords for the setling her Title to certain Lands in Heygrove in the County of Somerset and for quieting and ending divers Suits and Differences between her and Sir Arthur Ingram Sir William Whitmore c. They order her Satisfaction out of particular Lands And all Suits to cease between them And appointed Releases of all differences on both sides to be drawn and sealed 4. Car. 31. Jan. The Lords Committees for Petitions make report to the House of a Petition of Benjamin Crokey against John Smith in behalf of a Grammar-School at Wotton-Underedge in the County of Glocester which School was endowed with great Possessions by the Widow of the Lord Berkly in Richard the 2 ds time which were now much abated and brought to an undervalue by the cunning practices of the said Smith Upon which the Lords awarded a Commission to issue out of the Chancery to survey all the said Lands And ordered also a special Habeas Corpus to be directed to the Warden of the Fleet where Crokey was a Prisoner to bring the Body of the said Crokey before the Lord-Keeper to the intent he might attend the said Commission And ordered further That if Crokey did make it appear the value of the Lands to be so as be said and that to be approved by the Lords Committees for Petitions then Smith to repay to the said Crokey such Charges as he shall disburse in the Prosecution In the Parliament of 1640 Decemb. 16. Upon report from the Lords Committees for Petitions That Mistris James complained against Sir Edmond Sawyer for sheltring himself under a Royal Protection which he had procured by which means she could not sue him upon a Bond of 500 l for so much Money borrowed of her and two years Interest and so was debarred from helping her self by any Legal course The Lords ordered that the said Mris James should proceed against the said Sir Edmond Sawyer for the recovering of her Debt in any Court where she thought best notwithstanding his Protection December 21. The Lords Committees report a Petition of Katherine Hadley complaining that she had been kept a long time a Prisoner in the Common-Gaol in the Old Bridewell without any cause shewn the Lords ordered her Release The 22th of Decemb. Upon a Report from the Lords Committees of Sir Robert Howard's Case complaining that he had been committed Close-Prisoner to the Fleet by the High Commission Court and kept there three months till he was fain for his enlargement to enter into several Bonds with Sureties in the sum of 3500 l For which he desired Reparations and his Bonds to be cancelled The parties interessed were summoned and heard And after due consideration the Lords ordered a thousand pound damages to Sir Robert Howard of which 500 l to be paid by the Archbishop of Canterbury 250 l by Sir Hen. Martin and 250 l by Sir John Lambe the Bonds to be forthwith cancelled and delivered to Sir Robert Howard The 23d of Decemb. They reported the Case of William Dudley that he having arrested the Lord Wentworth son to the Earl of Cleveland for a Debt of 400 l entred a Caution in Mr. Justice Bartley's Chamber for good Bayl to be taken yet Justice Bartley had released the said Lo. Wentworth upon such Bayl as the said Dudley was utterly disabled to recover his debt Justice Bartley being called made no good Answer thereunto The Lords thereupon order that the said Justice Bertley should forthwith assure unto the said Dudley his House and Land near Barnet for securing the said Debt with Interest and Damages The same day they report likewise the Case of Mris Mary Stanhope Widow Daughter-in-law to the Earl of Chesterfield complaining that the said Earle refused to assure unto her 40 l per Annum during her Widowhood according to a former Agreement made between them which appeared to be true by a Letter produced under the Earl's hand And his counsel being heard and no good cause shewn why the Petitioner should not be relieved The Lords ordered the Earl of Chesterfield forthwith to assure to the said Mris Mary Stanhope his Daughter-in-law 40 l per Annum during her Widdowhood and to pay unto her such money as was in arrear of the 40 l per Annum due to her for the space of two years The 30th of December the Lords Committees for examining Abuses in Courts of Justice report the Complainâ—… of John Turner a Prisoner in the Gate-house committed thither by the High-Commission Court where he had lain fourteen years for refusing to take the Oath Ex
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
procured the Arrest brought to the Bar and upon their humble sumbmission pardoned with a check from the Speaker and paying their Fees Three Presidents only there are which Sir Edward Cooke produces of their exercising a Judicature two of them upon their own Members for Miscarriages the third upon one no Member for striking a Member this primo Mariae the other 8. Eliz. 23. But they did not constantly nor frequently do that neither that is not judge and punish either their own Members for any Offence whether against the House or out of the House or any other for arresting or assaulting them till after Queen Elizabeths time For in the 27th of her Reign as appears by the Journal of that Parliament A Member of the House having been served with a Sub-poena the House sent to the Lord Keeper and signified unto him That it was against their Priviledge The Lord Keeper returned answer That he should not submit to any Opinion of the House concerning their Priviledges except those Priviledges were allowed in Chancery and would not recal the Sub-poena So in Matters of Elections they were glad to pray the aid of the House of Peers upon any Miscarriage or Neglect of the Sheriffs as in the 18th H. 6. n. 18. The Sheriff of Cambridgshire Gilbert Hore had made no return of the Knights for the County upon Complaint made to the House of Peers it was Ordered That he should go to a New Election and make Proclamation That no Person should come armed thereunto Any of the Members to be dispensed of their Attendance in the House come to the King and Lords for it So did Sir Philip Courtney Knight for Devonshire 16. R. 2. n. 6. who being accused of some hainous Matter comes to the King in Parliament for the King did then ordinarily sit in Person in the House of Peers and prayes to be discharged his Attendance until he was purged which was granted This was upon the Wednesday and the Munday after at the Request of the Commons he is restored to his place in their House and to his good Name for that he had submitted himself to reasonable Arbitrement saith the Record All this is said with great Respect to the House of Commons and not any wayes to impugn or question their exercise of Jurisdiction upon their Members and for the defence of their Priviledges but only to shew how things were in the beginning and how extensive the Power of the House of Peers hath ever been in their Judicature reaching all Crimes all Persons all Places none exempt And how necessary it is it should be so That there be not a failer of Justice in the Land that no Offender may escape unpunished and no oppressed Person go unrelieved All other Courts having their Bounds and Limits which make them too narrow for some Cases And this trust being in the House of Peers there is remedy in those extraordinary Cases But before I wind up all to a Conclusion a word must be said to answer some Objections which I have met with in a Book intituled the Commoners Liberty printed in the year 1648. The first Objection is an Order of the House of Peers with the Kings Assent to it 4. E. 3. n. 6. by which the King and Lords declare an Agreement made betwixt them That the Lords shall not be held nor charged to give Judgment on others but their Peers And that the Judgements then given shall not be drawn into Consequence to oblige the Peers in time to come to judge other then their Peers against the Law of the Land This the Author of the Book will have to be an Act of Parliament because it is said to be done in full Parliament To which I answer The Record it self shews it to be otherwise The Title is Concordia ne trabatur in Consequentiam That is an Agreement an Accord between Parties that what is done shall not be drawn into Consequence no Law to impose upon them and to oblige them And the expression That it was done in full Parliament and so the Commons present signifies nothing as to inforce what he would infer upon it For admit that yet it makes it not a Law the Commons might be Witnesses to what was done but were no Parties Which must have been to make it a Law They must either have Petitioned for it before or have given their Assent and Approbation after it must either have begun or ended in their House before it had gone to the King for his Royal Assent and then it had been binding and the Law of the Land but there was no such thing here The Occasion of it was this The King had prevailed with the Lords against their Wills and Protestations to the contrary as appears by the Record of that Parliament n. 2. even in a Manner forced them to condemn the Earl of March Sir Simon de Beresford John Matrevers Bogo de Bayons John Devaral Thomas de Gourney and William of Ogle for the murther of Edward the Second and the death of the Earl of Kent all of them Commoners except the Earl of March and none of them called to answer yet some of them in hold and others not Those that were in hold were presently executed and great rewards promised to who should bring in the rest quick or dead The Lords afterwards troubled in Conscience at what they had done and moved with just indignation against themselves made first a Protestation That they would not for the future be Tenus Chargez a rendre Jugement sur autre que sur leurs Pairs be tyed and charged to judge any but their Peers and this they get the King to consent unto and happily for the more Solemnity of the business would have the King declare so much before the Commons And their Indignation together with their Precaution not to be again necessitated to do the like might carry them further to say They would not be obliged to judge any but Peers against the Law of the Land though it will very well bear an other Construction that it was their being in that Manner forced and pressed to do what otherwise they would not have done which they declared to be against the Law of the Land because it is against the Freedom of Parliaments and not their Judging of Commoners to be against the Law of the Land But admit it those Lords then thought it to be so and that they ought not to judge any but their Peers Doth that bind up the House of Peers that they may never be of another mind They are still Masters of their own Orders and alter them and change them as they think good And I look upon this Order as no other nor of no more force then that made 8. E. 1. which is in the Appendix to the Placita Parliamentaria p. 442. concerning Petitions which I have mentioned before and which succeeding Parliaments would not observe And that they did not observe this neither
of these several Offenders But admit they had particularly impeached every one of them which is more then to desire such a Delinquent may be brought to his Tryal and that the Lords would do Justice on him as they find Cause and much more then onely to design the Crime and leave it to the Lords to find out the Persons For in an Impeachment they examine the matter and first find themselves the Party to be guilty and then they follow it against him and prove him so before the Lords Doth this at all give them any part in the Judgment or must it not necessarily be understood that the Judicature is naturally and constantly lodged with the Lords and the House of Commons part then is onely to bring the Offender before the Lords to be tryed This very Record of the Proceedings in the Lords House against Gomeniz and Weston shews it so to be and proves the Judicature of the House of Peers as strongly as can be It runs thus Item par la ou supplié est par les Communes que tous ceux qunt rendus perdus Chatels ou Villes par dela par uray defaut des Capitaines puissent estre a Response a Cest Parlement selon leur desert fortement punis par agard des Seigneurs Baronage eschievant le malueis ensample qils ont donnez as autres qui sont Gardeins de villes Chatels Commandé est a Sire Alein de Buxhall Conestable del Tour de Londres qe y face venir deuant les Seigneurs en Parlement a Westminster le Vendredy 27 Jour de Novembre lán susdit Jehan sire de Gomeniz William de Weston c. Item Whereas it is prayed by the Commons that all those who have delivered up and lost Castles and Towns on the other side of the Sea by their own default being Captains of them may be put to their answer at this Parliament and according to their desert be severely punished by the award of the Lords and Baronage for the eschewing of the evil example which they have given to other Guardians of Towns and Castles Command is given to Sir Allen de Buxhall Constable of the Tower of London to bring before the Lords in Parliament at Westminster upon Friday the 27th of November of the aforesaid year John Lord of Gomeniz and William of Weston c. Here the Commons desire that all such may be severely punished by the award of the Lords and Baronage So it is their Award and their Judgment must punish and this by the Commons confession And you may observe further that the Commons do not make any mention of any particular Person but the Lords they command Sir Allein de Buxhall to bring Gomeniz and Weston before them such a day But it is easie to trace the Author of the Pamphlet where he was led out of the way and that was by an other Pamphlet of the Priviledges of the Baronage which goes under Mr. Seldens Name but hath as many mistakes in it as leaves and there indeed it is said p. 15. That at the supplication of the Commons that all those who have rendred Castles be put to their Answer and that Allen Buxhall Constable of the Tower do bring before the Lords such a day Gomeniz and Weston to answer the Articles which there shall be preferred for the said Cause they were so brought c. But the Record it self you see is otherwise which that Pamphleter it seems never read And for what he further would infer to make that and all other Judgements at the prosecution of the Commons admit they had been so which these were not Acts of Parliament is a Fancy so ridiculous as it is not worth the answering which makes no difference betwixt an Act of Attainder that passeth both Houses and afterwards hath the Kings Assent as all other Laws have which is an effect of the Legislative Power in which either House hath an equal Vote and a proceeding before the Lords against a Criminous Person in a Judicial way wherein the Commons have nothing to do as to the judging of him But one thing more in that Pamphlet I cannot let pass which is in p. 12. The words are these viz. For the Kings giving Judgment in Parliament with the Lords Assent I do confess Judgements there ought to be properly and punctually entred as given Par nostre Seigneur le Roy que est Souverain Juge en tous Cas par les Seigneurs Spirituels Temporels ouel Assent des Communes de la Terre ou a leur Petition Nenny par les Seigneurs Temporels Seulement That is As given by our Lord the King who is Sovereign Judge in all Causes and by the Lords Spiritual and Temporal with the assent of the Commons of the Land or upon their Petition and not by the Lords Temporal alone And for this he quotes in the Margent Rot. Part. apud Leicester II. 16. which he delivers so Magisterially as any man would swear he had good Authority for what he said and that his old French was some old Oracle of Parliament And I must confess upon the first reading of this I was at a stand finding here such a positive Precept contrary to what I had still believed both in the Affirmative it must be by the Kings and Lords with the Assent of the Commons and Negative not by the Lords alone But when I came to examine this Assertion by the Record I found there was a foul mistake whether purposely or ignorantly I judge not For what was delivered by Counsel to bolster up his Clients pretentious is there produced as the Rule of the Court And an Error assigned to reverse a former Judgment which is but the Allegation of a Lawyer that draws up his Clients Plea is made an Argument to controul and condemn a constant usage of the House of Peers It was in the Case of the Earl of Salisbury Who brought a Writ of Error in the Parliament 2. H. 5. to reverse the Judgment given 2. H. 4. n. 30. by the Lords Temporal alone with the Kings Assent by which Judgment the Earls of Kent Huntington and Salisbury and some others who had been some slain some taken in actual Rebellion by other the Kings Subjects and by them put to death without form of Law were declared attainted of Treason and their Estates forfeited For the reversal whereof Thomas the Son Earl of Salisbury amongst the Errors assigns this for one as a principal one that it was given by the Lords Temporal alone with the King whereas it should have been by the King Lords Spiritual and Temporal with the Assent of the Commons or at their Petition And what follows upon this Indeed if the Judgment had been reversed though perhaps upon some other Error for several others were assigned there might have been some colour for the Gentlemans Assertion and the Inference he would make upon it But so far from it that the Judgment