King and then at a day the ancient use in such Cases was this The Lords considered of the Complaint and examined the Proofs produced by the Commons Then agreed on their Judgment and caused Proclamation to be made throughout England for the party to appear at a day else Judgment shall be pronounced against him with which the Commons are to be acqnainted before the Proclamations are sent for Then the Return of the Proclamations to be reviewed and examined and if any Errors be therein new Proclamations are to be made in the next Shire only for the party to appear at a short day If they find no Errors in the Return then Judgment is to be pronounced and not before Thus it was in 21 R. 2. in Thomas Mortymors Case c. In 7 H. 4. in the Earl of Northumberlands Case But there needed no Articles to be drawn up Ex parte Dom. Regis out of the Impeachment of the Commons for the Suit is theirs and not the Kings Touching the Lord Treasurer First the Commons did swerve from the Ancient Course in this they delivered not their Accusation in writing he being absent Had it been in the open House an Impeachment by word of mouth had been sufficient and the Suit had been theirs but it being at a Committee how could the Lord Treasurer take notice of their Impeachment wherefore the Lords of necessity did draw up a Charge against him out of their Accusation and then it became the Kings Suit and they were abridged of their power to reply or demand Judgment Prout in Weston Gomeniz Case 1. R. 2. And Alice Peirce ibid. Neither was it now necessary for the Commons to be acquainted with the Delinquent's Answer or any of the Proceedings for that they neither demanded he might be put to his Answer before the Lords and them nor impeached by word in open House nor in Writing One of which is required in an Impeachment And the Lords they varied in this that they did mingle other Complaints with these of the Commons when each should have been apart of it self prout 43 E. 3. Sir Joh. at Lees Case Neither did the Lords anciently use to omit any part of the Commons Complaint and Accusation as they did the Imposition on the French-Wines And the Articles of the Charge they sent to the Lord Treasurer ought to have been examined ex parte Domini Regis prout in the former Precedents of 1 R. 2. The next Precedent is 7 R. 2. upon the Demand of the Commons against the Bishop of Norwich and others §. 5. Of Accusation by Complaint of private Persons I do not remember any Precedent of this manner of Accusation for publick Offences unless the Parties Complainant be particularly interessed therein yet I doubt not but such Complaints have been and may be received and the Parties proceeded against in Parliament or else that High Court should not have so much Authority to receive Information pro Domino Rege from private persons as the Inferiour Courts have But what hath been done shall appear I will omit all Complaints of particular wrongs evcept it be of Bribery Extortion or Oppression in Men of Authority Anno 43. E. 3. William Latimer exhibited his Petition in Parliament unto our Lord the King and to his Council shewing that he had the Wardship and Marriage of the Heir of Robert Latymer by mean Grant from the King and held the same until Monsieur John at Lee then Steward of the King's House sent a Serjeant at Arms to bring them to London and commanded him being come not to depart without his leave upon payment of 1000 l. and afterwards would not give him leave to depart until he had surrendred the Body of the said Heir and the King's Patent unto him the said Monsieur John at Lee and thereupon the said John was put to reason before the Lords c. no. 20 21. and also the said John was put to reason before them for this When he was Steward of the King's House he caused divers to be attached by their Bodies some by Serjeants at Arms and some otherwise as W. Latymer and others to be brought before the King's Council c. n. 22. and also for executing the Authority of Steward out of the Verge n. 23. and also for discharging out of Newgate by his own Authority and against the Judges Commandment Hugh Levenham an Approver who had appealed several men of Felonies c. n. 24. and also that he being sworn by the King's Councel did bargain with Nicholas Levayn for the Mannor of Cainham in Kent which the faid Nicholas claimed to hold during the Minority of John Staynton whereas the said John at Lee knew the same was never holden of the King in Chief of the Castle of Dover n. 25. These be the Particulars wherewith the said John at Lee was Charged It appeareth W. Latymer accused him at the first but not the rest and I imagine that the Commons accused him of the Second and other Particulars for that they are said somewhat generally and are offences against the Liberties of the Commons and also for that divers of the Commons were present at the hearing And for the Fourth and Fifth Particulars I conceive the King's Councel accused him thereof for that one is an Offence against the legal Proceedings of Justice which then was that of the Approver viz. He which accuseth any one of Felony c. should remain in Prison as well as the accused until Trial. Of later times the Accuser puts in Sureties to prosecute and the other Offence is a partiticular wrong done unto the King in his Revenues And had any private person accused him of this their Petitions would have been recorded as well as Latymer's But the Lords proceeded against him upon Latimer's Accusation and then upon the rest severally and they did not mingle one with another Anno 50 E. 3. The Commons accused and impeached W. Ellis n. 31. and afterwards John Botheil and W. Cooper exhibited their Bills against him to this effect To their Thrice Redoubted King and to his Sage Councel sheweth John Botheil of London That the Monday next after the Ascention in the Fortieth Year of our Lord the King that now is a Ship of Scotland in Pruse was chased by Tempest into Likebread whereof the Master's Name is Henry Luce Charged with divers Merchandizes c. and that the same day one William Savage Clerk and Servant to William Ellis by Command of the said William took of the said Ship for the Merchandizes not discharged there 17 Nobles and a Last of c. and because that W. Ellis knew that W. Cooper was to come to the Parliament and shew these and other Grievances in aid of the Merchants and also to shew how the great Prices of Herrings might be amended in aid of the whole Realm the said W. Ellis by false suggestion caused the said W. Cooper to be Arrested and put in Prison in
the Particulars in form of a Charge they were sent to the Lord Chancellor and his answer required to each particular In the same manner in the same Parliament they accused John Bennet Judge of the Prerogative Court of Bribery and Corruption in his Office In the same manner they accused and impeached Lyonel Earl of Middlesex and Lord Treasurer of England of Bribery and Extortion and Impositions on French Wines and Grocery which being reported to the House a Committee was appointed to consider of the Commons complaint and also of a Committee who had reported to the House a great want of Powder in the Stores through the Lord Treasurer's negligence A Committee appointed to consider thereof did after many Examinations taken draw up out of the whole Complaint of the Commons a Charge against him as also out of the Report of the Committee for Munition touching the want of Powder and of a Complaint made to the House by Sir Thomas Dallison and of some Misdemeanors whereof they are informed in the great Wardrobe and Court of Wards Which Charge the House sent unto the Treasurer and required his Answer 21 Jac. In eodem Parl. 21 Jac. The Commons at a Conference accused and impeached by word of Mouth the Bishop of Norwich of some Misdemeanors which being reported to the House the said Bishop made a present Answer thereunto as it was In the Parliament 1 Car. 1. Febr. 6. The Commons at a Conference accused and impeached George Duke of Buckingham of many Misdemeanors and delivered their Declaration in Writing that the said Duke might be put to his Answer § 2. The second manner of Accusation is Ex parte Domini Regis which is threefold The two first are immediately from the King and the third from the Commandment of the Lords by a formal Information exhibited in Parliament by the King's Attorney or Council learned as was that of E. 3. against Roger Mortimer Earl of March and divers others and 4 R. 2. against Sir Ralph Ferrers K t and 1 Car. 1. against the Earl of Bristol By the King's Commandment either upon the Petition of the Delinquent and upon the return and view of any the Proceedings taken elsewhere as against the Earl of Northumberland and Lord Bardolph upon former Proceedings against them in the Court of Chancery And 2 H. 6. upon request of the Commons against Sir John Mortimer Knight indicted in London In these Cases no Articles are exhibited Ex parte Domini Regis as in the former By Articles exhibited Ex parte Domini Regis Ex parte Dominorum against such as the Complaint is made upon in general by the Commons prout 1 R. 2. against Gomeniz Weston and Alice Peirce 7 R. 2. against the Bishop of Norwich and divers others Which Articles though drawn and exhibited Per mandatum Dominorum yet were the Parties charged therewith Ex parte Domini Regis Of Accusation by Information Ex parte Domini Regis In Rot. claus 4 E. 3. There is a Proclamation of the death of Edmond Earl of Kent where it is said certain Letters of his containing Treason were shewed to the King wherefore he was Arrested and freely acknowledged the same before the Earls Barons and other Grandees and Nobles of the Realm in the Parliament at Winchester 4 E. 3. Here appears plainly that Articles of Treason are exhibited in Parliament against the Earl of Kent In the next Parliament in the same year Edmond Son and Heir of the said Edmond exhibited his Petition praying the King that the Record and Process whereupon the said Earl was put to death might be brought before him in Parliament and if Errors be found that Right be done Numb 11. The which being read before the King Prelates Earls Barons and other Grandees in the said Parliament the King by his Royal Power and Dignity by assent in Parlialiament repealed the said Judgment Numb 12. Note That in this Repeal no Error was alledged nor any Exceptions taken for this that the Lords proceeded upon the Articles only which were objected against him the said Earl This is out of the Close Roll. The first Precedents recorded in our Parliament Rolls of Accusations in this kind are these of 4 E. 3. in the Parliament at Westminster which are added at large amongst divers others at the end of this Discourse the effect whereof doth follow viz. These are the Treasons Felonies and ill Deeds done to our Lord the King and to his People by Roger de Mortimer and others of his Covin reciting them all and concludeth thus Whereas our Lord the King doth charge you the Earls Barons and other Peers of this Realm that for as much as these things touch him principally and you and all the People of this Realm That you do unto the said Roger right and lawful Judgment as is fit for such an one to have who is very guilty of all the crimes above written for that he believed the said things are notorious and known for truth unto you and to all the People of the Realm Numb 1. The followeth the Judgment against him Item In the said manner our Lord the King charged the said Earls Barons and Peeres to give right and lawful Judgment on Simon de Bereford Knight who was ayding and counselling unto the said Roger de Mortimer in all treasons and ill deeds for which the said Roger was so awarded and done to death as the thing that is known and notorious to the said Peers as the King believeth Then followeth the Judgment against him also Then followeth the Judgment against John Matrevers Thomas de Gurney and William de Ogle Numb 5. But no particular accusations are recorded against any of them unless they were comprised in those general words of that against Mortimer viz. And other of his Coyn. For some of the same Crimes are mentioned in the Judgments yet no doubt but the Kings Attourny did exhibit Articles against every of them upon which the Lords proceeded to Judgment Here I do ingenuously confess my own Error when I said that this Judgment against Roger de Mortimer was afterwards reversed for that he was put to death without any Accusation which I conceived to be so upon first view of the Repeal thereof Anno 21. E. 3. Numb 10. Where the Petitioners Roger de Mortimer the Grandchild assigneth for that the said Earl was put to death and he disinhereted Sans Accusament Et sans estre masone in Judgment ou en Respons By which words sans accusament I gave you to understand that the Articles were no accusation whereas now upon better Consideration I do find that these words do intend no accusation by witnesses or otherwise to prove the said Articles objected against him For these Articles are a legal accusation in Parliment and frequently used as appears by many Precedents of the like nature But there was no other proof offered by the Lords to prove the same then that the King believeth them
against Henry late Earl of Northumberland and Tho. Bardolph late Lord Baron for certain ill deeds which they had lately committed contrary to their Allegiance At their meeting the Constable of England shewed them the Process made in the Court of Chivalry against Henry de Peircy upon the Articles of Treason committed by him and others of his Covyn In which Articles are named the Arch-Bishop of York Tho. Newberry Earl Marshal the said Earl of Northumberland the said Lord Bardolph and many others and their several Treasons are therein contained The Lords having advised therein and considered the proofs delivered their opinion to the King touching the said Earl of Northumberland and the said Lord Bardolph only and proceeded to Judgment against them Then the King caused to be demanded of the Lords Temporal Peers of the Realm what they would say touching the Act of the said late Arch-Bishop of York and of the said Earl Marshal who lately with a great multitude of people were armed and trained in the field within the Realm of England with Banners displayed c. Unto which demand the said Lords Temporal said That according to the Information to them given by the said Constable It seemeth unto them to be Treason yet notwithstanding the Lords desired that with good deliberation when they next returned to the Parliament they might speak thereof unto our Lord the King as no error might be found in their doings in time to come This was done on that day the Parliament was adjorned Here the Lords had no other Accusation against those two Peers but the Kings commandment upon view of former Process against them in the Court of Chivalry And the Lords declared their opinion touching the Archbishop of York and the Earl Marshal though their Treasons were contained in the same Process also least Error might be found in their doings hereafter But whether they thought their Error to be that the King had not commanded them first to advise thereon touching the said Archbishop and the Earl Marshal as he had done touching the others Let the Reader Judge For my part I think that would have been error Could the Lords proceed upon Process elsewhere unless the King commands them 2 H. 6. The Judgment against John Mortimer is drawn up very briefly by John Hales one of the Justices of the Kings Bench wherein he first shews that the said Sir John Mortimer was Indicted in London sitting the Parliament before the Lord Mayor of London and other Commissioners appointed by the King For that the said Sir John being committed to the Tower for suspition of Treason corrupted his keeper and broke Prison That the said Indictment was returned into Chancery Ex mandato Dom. Regis and by the Chancery brought into the Parliament before the Duke of Gloucester the Kings Protector and the Lords Temporal the King being then an Infant And the Protector being Authorized by Commission to hold the Parliament de Precepto Dom. Regis That the said Sir John Mortymer by Vertue of the Writs was brought before the said Duke and Lords and Commons That the said Commons affirmed the said Indictment to be true and desired Judgment against him as convict of Treason and Felony And lastly That he was thereupon adjudged In this is set down all the essential parts of the Lords proceedings against Mortymer The Ceremonious or formal parts thereof are omitted as who complained of or accused Mortymer to the Parliament The King or the Commons did not for then there needed no Indictment And therefore it must move for the King either before the Indictment or rather upon the Return thereof unto the House For had the Accusation been before the Indictment it had been a shorter way to Arraign him also before the Commissioners in London he being no Member nor Peer of Parliament then to return the Indictment into the Chancery and then be brought into the Parliament Here is also omitted the Conference before hand between the Lords and Commons touching this matter For it is very unlikely that the Lords did suddainly send for the Commons and then abruptly read the Information before them and they as suddainly affirm the same all these are necessarily understood That the Commons affirmed the Indictment e. It appears that the Lords cannot of themselves Judge a Common Person for an Offence for he is no Peer according to that of 4 E. 3. Numb 26. The manner of Accusation by Information Ex parte Dom. Regis is when the Commons as any other private Person accuse any man unto the Lords in general but do not declare the Offences in particular other then by the Commandment of the King Articles are drawn up against the Delinquent Ex parte Dom. Regis The Precedents are these 2 R. 2. The Constable of the Tower was commanded to bring Gomeniz and Weston whose Offences were complained of in general by the Commons that they named before the Lords in Parliament to Answer to the Articles objected against them on the behalf of the King and they were severally arrained at the Commandment of the Lords c. Eodem anno Alice Pierce being complained of by the Commons was accused and commanded to come before the Lords in Parliament to Answer to certain things objected against her on the Kings behalf And here upon Sir Richard le Scroope Chief Steward of the Kings House by Comandment of the Lords rehersed in Parliment in the presence of the said Alice a certain Ordinance c. Made in the Parliament of 50 E. 3. against her And this Rehersal being made the said Steward surmised unto the said Alice That it seemed to the Lords of the Parliament that she had incurred the pain comprised in the said Ordinance in certain points and especially in two That is to say c. By these two Precedents it appears plain enough that the Lords commanded the Articles to be drawn and exhibited though ex parte Dom. Regis for all these are said to be done by their Commandment And the practise at this day is that out of the Complaints of the Commons as of Mompesson The Lord Chancellor and the Lord Tresurer and a Committee of the Lords did draw up the Charges But they wanted the words Ex parte Dom. Regis The reason why in this Cause the Articles are Ex parte Dom. Regis seemed to be this The Commons complain but impeach not Notwithstanding the Impeachment the Lords cannot proceed neither can they Impeach any to themselves So it rests that the party is to be Impeached at the Kings Suit It may be lawful for me to examine the proceedings of the Lords in the Complaint against Mompesson and to compare them with ancient Proceedings in like Cases And they will appear to differ much And touching Mompesson the Commons did not only complain but accuse him He fled in his absence they ought to have proceeded to Judgment against him before Proclamation first made for him to appear before the
They met at Westminster June 19. and were assisted by the Lord Treasurer Lord Keeper Lord Privy Seal the Master of the Rolls and the King 's two Serjeants c. and they called the Fishmonger before them and cause to be recited the said Accusation and the Chancellor's Answer and then demanded of him what he could say why he should not undergo the Penalty of the Statute against such Scandals especially whenas the Chancellor hath acquitted himself in Parliament and is yet ready to acquit himself by any way possible The Fishmonger denied that he slandered the Chacellor but the Clerk only c. The Commissioners considering the Accusation and Answer in Parliament and especially that the Fishmonger said he could not have Justice in his Cause before the Chancellor the contrary whereof was expressed and proved out of the Records of the Chancery They adjudged him guilty of Defamation and to pay one hundred Marks to the Chancellor and to be imprisoned until he could pay the same and a competent Fine due to the King It should seem the Lords could find no time to examine the Injustice he complained of and therefore referred it to the Judges Anno 6. R. 2. Octab. Mich. Numb 59. Divers Bills were exhibited this Parliament by the Mayor Aldermen and Citizens of London concerning the Fishmongers and the said Mayor and Aldermen and Fishmongers were present at the reading thereof where Nicholas Exton who spake for the Fishmongers prayed the King to receive him and his Company into his Majesties protection Numb 59. which was granted Numb 60. Then one Walter Sybil a Fishmonger craved Audience and said These Bills were not exhibited for any good zeal to the Commonweal but for meer Malice to the Fishmongers for that the chief Exhibiters of these Bills being commanded to prison for sundry Misdemeanors in the time of E. 3. were then imprisoned by certain of the Fishmongers who then were chief Officers in London for which cause Malice was born at that time Numb 60. To that one John Moore a Mercer answered The Citizens of London went to keep the Peace towards them unless they went about to let into the said City the Rebels of Kent and Essex as the said Walter and others did Numb 60. The said Walter Sybill took advantage of those words and desired the Lords to bear witness John Moore thereupon expounded his words saying as the Report then went and prayed the Lords that the Truth thereof might be further enquired of in the City There is one only Precedent of a Complaint made by a private person in the House of Commons and of the Commons proceeding therein against a Lord of the Parliament which was thus Anno 15. H. 6. Tho. Philips exhibited unto the Commons his Bill of Complaint against John Bishop of London for his long Imprisonment upon suspition of Heresie The Commons sent up the Bill being written in Paper amongst other to the Lords without any Message for ought appeareth upon Record On Monday following the Bill was read and the Lords Excogitabant That it did not belong to their House de talibus frivolis rebus consultare and returned it to the Commons Hereupon the Commons sent to the Bishop for his Answer in writing unto this Complaint which yet the Bishop did forbear to do until he knew the Opinion of the Lords herein and acquainted their Lordships therewith The next day the Lords answered all with one voyce Quod non consentaneum fuit aliquem Procerum alicui in eo loco responsurum Lunae 2. Martii In the Parliament begun at Westminster An. 16. Jac. Sir John Bowser Knight complained of the Bishop of Lincoln the then Lord Keeper but he was not compellable to answer before the Commons 10 R. 2. The Commons accused de la Poole openly in Parliament before the King and Lords unto which the Councellors made a good Answer in the Opinion of this Age yet upon the many Replications of the Commons and the enforcement of his Oath strictly against him he was Fined and Imprisoned c. In this Parliament also the Lords and Commons procured Commission unto certain of the Lords to enquire of the Enormities of the Realm and to redress them The King was so highly displeased with these Proceedings that on the last day of this Parliament being the 25th of November he himself protested that nothing done therein should turn to the Prejudice of him or his Crown Afterwards he sought all means to overthrow those Lords who procured that Commission viz. the Duke of Gloucester the Earls of Danby Arundel Warwick and Earl Marshal And at a Consultation thereupon he sent for the Chief Justice Tressilian and some other Judges and his Serjeants at Law unto Nottingham where on August 25. Anno 11. he propounded certain Questions containing all the points of Advantage against the Proceedings of the last Parliament which the Judges affirmed to be Treason under their Hands and Seals Then the King thought to proceed judicially against those Lords but they kept together with the Duke of Gloucester at Heringby with a strong Guard And the King sent for them and all doubts of danger to their Persons being first removed they came Novemb. 3. Anno 11. and kneeling before the King's Majesty he demanded why they were Assembled at Heringby-Park in warlike manner They answered for the good of the King and Kingdom and to remove certain Traytors from about him meaning the Lord of Ireland the Archbishop of York Michael de la Poole Sir Robert Tresilian and Sir Nich. Brembre And with that they threw down their Gloves and Gages of the Challenging to prove the same Unto which the King replied This shall not be done so but at the next Parliament which shall be the Morrow after Candlemas Day and then all parties shall receive according as they deserve In the mean time he conveys away the parties accused and acquits them by Proclamation then summoned a Parliament at Westminster Crast. Purificat 11 R. 2. Where these few Lords Appellants came well Armed which made the King unwilling to come amongst them yet at last he came Haec ex Ep. fol. 603. On the first Day of this Parliament the Duke of Gloucester one of the said Appellants kneeling before the King shewed That whereas he understood his Majesty was informed that he intended the Deposing of him and Advancing himself to the Crown he was ready to declare his Innocency herein in such sort as the Lords would ordain Whereupon the King answered He held him thereof acquitted On the second Day of this Parliament the said Appellants exhibited their Petition to the King concerning several Articles against divers Lords and Commons whom they appealed of Treason The said Articles being read in presence of the King and Lords in Parliament the said Appellants offering to make Proofs thereof required that the said Appellees might be called to Answer and for default of their Appearance demanded Judgment against them Hereupon
and that they are notorious and known for truth unto the Lords and all the People of the Realm And the Lords also having examined these Articles said all these things contained therein are notorious and known They speak not a word of any one witness examined or any other proof then the common fame For this Cause and for that the said Earl was not brought to Judgment nor to answer but condemned unseen and unheard upon common Fame only without any legal Proof The whole Parliament did very justly Repeal the said Judgment and Record declaring it to be erronious and defective in all points And the Lords were willing to damn the whole Record in all points least haply it might be alledged against themselves another time for Precedent Anno 15. E. 2. The Lords and Commons joyned in the Accusations against the Spencers and for that the Lords had no Record in their own pursuit upon the Cause contained in their award and they ought not to be their own Judges c. having been Accusors no exceptions were taken to the Articles but other Errors assigned quod vide where it is said to be sans Accusament so that they repealed it not for that there was no Accusation but for that he was not brought to his Answer Again That those words Sans accusament should simply signify no Accusation is only the Averment of the Petition The Judgment doth not say that there was no accusation but that it was erronious in all points And so it was no proof being produced but common Fame to prove the Answer And this first error bred a second I do not well understand the meaning of these words Sans accusament That a Peer ought to be Indicted for Capital offences in Parliament But having perused all the Judgments I do not find any one Peer indicted in Parliament In 11. R. 2. Numb 7. All the Lords Spiritual and Temporal claimed as their liberty and franchise that the great matters moved in this Parliament and to be moved in other Parliaments in time to come touching the Peers of the Land ought to be admeasured adjudged and discussed by the course of the Parliament and not by the Civil-Law nor by the Law of the Land used in the more base Courts of the Realm which the King granted in full Parliament eodem Anno Rot. Appeal 290. This is said to be their ancient custom viz. To be adjudged according to the use of the Parliament only Then no Peer can be indicted in Parliament for that it is contrary to the use of Parliament Let this suffice for the confession and rectifying mine own former Error herein But a Lord of Parliament may be indicted out of Parliament and by the Kings command proceeded against in the next Parliament upon the same indictment as in these Subsequent In the same Parliament the Lord Berkley was arraigned for the death of Ed. 2. and whether out of his humility or otherwise he waved his Peerage and put himself on the Tryal of his Country the Articles against him though not expressed but by the Inference out of his Arraignment are for the murder of King Ed. 2. at Berkley Castle in the County of Gloucester unto which he answered that he was then sick at Bradley in Worcestershire and pleaded not guilty of the death of the said King Et de hoc de bono malo ponit se super Patriam The Precedent shall hereafter be added at large It begins thus Placita Coronae tenta coram Dom. Rege Ed. 3. post conquestum Angliae in pleno Parliamento suo predicto Et allocutus de hoc quod cum Dominus Edwardus nuper Rex Angliae Pater Dom. Regis nunc in custodiam Thomae cujusdam Johannis Matrevers extitit deliberatus ad salvo custodiendum Castro ipsius Thomae de Berkley in Com. Gloucester in eodem Castro in custodia ipsorum murderatus extitit interfectus qualiter se velit de morte ipsius Regis acquietare dicit c. Numb 16. Then follows his Answer Here the cause why the Lord Berkley was tryed is mentioned but the Articles objected against him and by whom he was accused who questioned him whether the Chancellor or Steward of England or who else All these circumstances are omitted It appears not I say in what manner this crime of the Lord Berkley was presented to the Lords whether by the former general Information against Mortimer autres de la Covyn or by some such Particular Information against him alone which I rather believe Some such Information there must be of necessity else how could he be question'd for his crime in Parliament But here it appeareth that the Lords brought him to his Answer which they omitted to Mortimer and in that Point their Proceedings against Mortimer were erronious And had his manner of Accusation been erronious also No doubt but the Lords would have avoyded that error now against Berkley The manner how Berkley was arraigned here in pleno Parliamento is explained in the Precedent of 1 R. 2. Gomeniz and Weston who were brought Prisoners by the Constable of the Tower before the Lords in full Parliament sitting in the white Chamber where they were arraigned at the commandment of the said Lords in full Parliament by Sir Richard le Scroop Knight Steward of the Kings House The words full Parliament signify the Lords and Commons For that Record saith the Commons prayed that all such that have surrendred any Forts c. might be put to their Answer before the Lords and Commons c. Whereupon they were brought to their Answers in full Parliament for that Offence So here I conceive the Lord Berkley being accused by the King for the murder of King E. 2. was brought before the Lords and Commons For the Commons are to be present at such arraignment as shall be shewn hereafter and the Clerk of the Crown having read the Accusation against him Allocutus fuit That is the Lord Steward of England recited the Fact whereof he was accused and demanded of him how he could acquit himself This I conceive to be the manner thereof Vide the Appeals 21 R. 2. for the form thereof I marvel the Lords permitted the Lord Berkley to wave his Peerage and put himself super Patriam Anno 4 R. 2. Sir Ra. Ferrers Knight was brought into Parliament under the guard of the Marshal of England and there arraigned on the Kings behalf for suspition of Treason c. Numb 21. In the Process against him is recorded that for suspition of Treason surmised against him he was arrested in the Marches of Scotland by Monsieur de Lancaster and other Lords Temporal there being in the said Marches and that he was brought under the said Arrest by commandment of the Lords to Answer in this Parliament to that which shall be surmised against him in special concerning certain Letters which were found and sent to the King and his Councel The Letters
were also recorded and read in Parliament Numb 17. 18 19 20. but the Information exhibited against him whereupon he was arraigned is not recorded It is only said He was arraigned Ex parte Domini Regis §. 3. Here might be two Questions First Whether was this Sir Ra. Ferrers legally brought to his Answer in Parliament by the commandment of the Duke of Lancaster and those other Lords who were then with him in the Marches of Scotland Secondly Whether he being no Baron or Lord of Parliament for he never had Summons might be legally arraigned in Parliament for life and death upon an Information Ex parte Dom. Regis which is contrary to the Law as was resolved in Parliament 4 E. 3. Numb 2. and 6. For resolutions of these doubts I am of opinion that the Duke of Lancaster might send Sir Ra. Ferrers to the Parliament because it was then sitting and might examine the Treason whereof he was suspected though they could not proceed to Judgment against him without the Commons he being a Commoner and not their Peer And it fell out in the Examination of this business they found the Letters to be counterfeited and so he was acquitted thereof And so far their proceeding was not illegal For the Parliament may entertain and examine any Cause and then direct the Judgment thereof to its own proper Court if it belong not unto them as they did in 5 R. 2. Numb 43. 44. Here Sir William Cogan Knight being accused by Sir Richard Clurdon of matter sounding to Treason After the Lords had heard the Cause they remitted both the parties to the Common-Law And in this Case of Sir Ra. Ferrers if they had found he had been guilty they might have proceeded to Judgment against him according to the Precedent of Sir Tho. Mortimer in 2 H. 4. who was indicted in London and the Indictment returned into the Chancery and thence brought into the Parliament where the Commons affirmed the same and prayed Judgment against him Anno 2 H. 4. The Lords Temporal gave Judgment on one Tho. Holland Earl of Kent John Holland late Earl of Huntington John Mountague late Earl of Salisbury the late Lord de Spencer and Ralph Lumley who were beheaded in a War they had Trayterously raised against the King This Judgment is entred but not the Information Ex parte Dom. Regis which is necessary to be understood for had it been omitted his Son Thomas would without doubt have assigned that for one of the errors in his Petition to reverse the said Judgment 2 H. 5. apud Leicester which he did not though he assigned for an Error That his Father was put to death without an accusation In the Parliament begun at Westminster Feb. 6. 1 Car. 1. and continued until June 25. Anno 2. ejusdem Regis John Earl of Bristol was charged with High Treason in this manner viz. Primo die Maii. The said Earl of Bristol being brought to the Bar and kneeling till the Lord Keeper wished him to stand up The Lord Keeper told him he was sent for to hear his Charge of High Treason And Mr. Attorney General being at the Clerks Table began to open his Charge but being interrupted by the said Earl who with much importunity exhibited Articles against the Duke of Buckingham then present which as he said he conceived to be Treason and required of the Lords that his Testimony against the Duke and the Lord Conway against whom he then also delivered Articles might not be made invalid no more then the Charge against himself which he affirmes was procured by the said Duke yet notwithstanding the head of the Kings Charge were opened against him by Mr. Attorney and then the said Articles against the said Duke and against the Lord Conway were read And it was ordered by the Lords of the Parliament that the Kings Charge against the said Earl should be first heard and afterwards the Earls Charge against the Duke c. But yet so as the Earls Testimony against the said Duke be not prevented prejudiced hindred or impeached Secundo die Maii. The House was moved that the Earl of Buckingham might be indicted according to the Stat. of 35 H. 8. the Treasons committed being beyond the Seas as was objected and that being certified to both Houses they to proceed against him by Tryal of Peers But their Lordships did not resolve on the manner of proceeding Then the Houses were moved that Mr. Attorney might provide an Indictment against the said Earl to be returned to the House on Saturday next Maii 6. And if he doubt of the Form to confer thereof with the Judges And if any great difficulty appear to resort to their Lordships and acquaint them with it And it was ordered that Mr. Attorney proceed with the preparation but the Houses not to be concluded at their next meeting on Thursday And the Sub-Committee for Priviledges c. to search for Precedents in the mean time Die Jovis Maii 4. The Sub-Committee for Priviledges reported one onely President viz. the Tryal of the Earl of Northumberland 5 H. 4. which the Clark read unto them out of the Parliament Roll of that year Whereupon after long debate It was ordered first that Mr. Attorney prepare the heads of the Charge against the Earl of Bristol and to bring them in on Saturday next Secondly The Earl then to receive his Charge at the Bar. Thirdly That when the Earl hath heard his Charge the Lords will determine when he shall Answer But he is not to be inhibited if he will Answer presently Fourthly The Cause of the Earl of Bristol is to be retained wholly in this House After the Earls Charge is brought in and his Answer then their Lordships to proceed to hear Mr. Attornies proofs amongst themselves and then to put the Cause into a way of Proceeding in this House Die Sabati Maii 6. The Lord Keeper shewed how Mr. Atturney desired that in regard the House hath already heard the nature of the crimes objected against the said Earl of Bristol That the Clark of the Crown in the Kings Bench may attend the reading of the Charge here according to a Precedent of former times which was denyed in regard the Clark of the Crown in the Kings bench is no Minister of this Court And also for that it was ordered May 4. that this Cause was wholly to be retained within this House The said Order being read the Earl was brought to the Bar and the Lord Keeper commanded Mr. Attorney to read the Charge against him who read the same out of a Parchment ingrossed in Court-hand and signed by himself Ro. Heath It containeth diverse Articles of High Treason and other great Enormities Crimes Offences and contempts committed by the said Earl c. prout postea Thus much touching the Charge against the said Earl by Information in the Kings behalf A Question was demanded of me and others in private the last Parliament
the Tower for three Weeks May it please you c. Here I observe that the Accusation of a private person ought to be legal and certain as that was This Accusation consists of two parts The unjust taking of 17 Nobles c. from the Merchant of Pruse and the Imprisonment of the Petitioner by false suggestion to the King Upon hearing of the Matter the Lords Ordered That as for the Complaint tovching the 17 Nobles it should be sent to the Kings-Bench to be tried there but the Lords themselves determined the Imprisonment upon the false suggestion to the King and awarded Ellis to prison to pay Fine and Ransom to the King and Dammages to the Accusers The Lords received the latter part of this Complaint for two Causes The one for the false Suggestion to the King limited by the Statute of 31 E. 3. to be punished by the Chancellor L. Treasurer and the Councel if he be untrue all which were present in the Parliament The other For a Scruple which might arise out of the Words of the Statute which provides for false Suggestions only to the King himself Whereas Ellis his false Suggestion was by a Letter written to one of the Kings Servants which being shewed to the King his Majesty caused the Petitioner to be imprisoned And this the Lords expounded to be in Ellis a Suggestion unto the King himself And had this Point been truly triable at the Common Law the Lords had referred it thither This is but my own Conceipt Anno 5 R. 2. Numb 4. Richard Clevedon Esquire by his Bill exhibited to the King in Parliament accuseth Sir William Cogan Knight Anno 5 R. 2. Numb 45. The Mayor Bayliffs and Commonalty of Cambridge were accused c. The next of this kind is a very slanderous Accusation of the Chancellor which I will briefly declare and the whole proceedings therein for that it differs in some points from the rest The Parliament of 7 R. 2. at Salisbury began the Friday after the Feast of St. Mark the Evangelist April 29. On the 24th-of May next John Cavendish Fishmonger complained in this Parliament First Before the Commons of England in that Assembly in presence of some Prelates and Temporal Lords and afterwards before all the Prelates and Temporal Lords in full Parliament In the beginning of this Complaint he desired the Lords for God's sake to grant sure and speedy protection for the safety of his Life and that he might have sufficient Surety of the Peace against those of whom he would complain and especially he demanded Surety of Monsieur Michael de la Poole Chancellor of England and accordingly the Chancellor did at the Commandment of the King find Sureties viz. Two Earls c. Then the Fishmonger rehearsed how that all the last Parliament which was held at Westminster at Allhallontide in the same year he did sue by his Bill to have restitution of certain Merchandizes of great value from Geo. Mansfield and three others which was lost upon the Seas by them at such time as they had undertaken the Safeguard of the Seas and of the Merchandizes passing and coming in the mean time against all Enemies except Royal Power The which was endorsed saith he and committed to the Chancery to discuss and determine the Matters therein comprized according to Law and Reason Whereupon he dealt with one John Otrey a Clerk and Houshold-Servant to the said Chancellor for his Master's Favour and Furtherance in the Business The Clerk after he had viewed a Copy of the Bill and considered of the Business promised that for Forty Pounds to his Lord's use and Four Pounds to his own use he should have speed That he gave his Bond for 44 l. to be paid at a Day to come and afterwards delivcred unto the said Otrey certain Herrings and Sturgeon to the value of 9 or 10 Marks to the use of the said Chancellor in part and three yards of Scarlet which cost him 32 s. unto Otrey for his own use in part of the said 4 l. Notwithstanding all which he found no Favour from the Chancellor in his Suit but was delaied and still is and cannot have Justice therefore That the said Otrey told him that he could have had more Money of his Adversaries to have been against him which made him suspect the worst But said he whether the Chancellor shall be reputed privy to this God knoweth judge you My Lords for the Chancellor hath paid him for his Herrings and other Fish and sent him his Bond cancelled but whether he did it out of Conscience or to avoid Slander and Reproach he knew not Judge you My Lords but he was not paid for his three yards of Scarlet Unto this the Chancellor made his Answer not presently but at another time for the Record saith He Answered first before the Prelates and Lords and afterwards before the Lords and Commons whereas the Commons were present when the Complaint was made it being in pleno Parliamento And in the Judges Award to whom this Matter was afterwards referred it is said to be coram Magnatibus Communitat ' in Parliamento So that the Answer was made some other way First He protested his Innocency touching the Delay of Justice and shewed how the Delay was through the Difficulty of the Cause and vouched the Justices and the Serjeants who had often heard the Pleadings Touching the Bribery he swore by the Sacrament he had no knowledge thereof until upon Accompt with his Officers he found those Fishes not paid for and then he presently caused them to be paid for and the Bond cancelled and sent him He denied that his Clerk moved him in that Business all which he offered to prove in such manner as the King and the Lords should ordain and demanded Justice against the Fishmonger for the Slander Unto which the Fishmonger presently answered and said He did not accuse the Chancellor himself but his Clerk only The Lords examined the Fishmonger and the Clerk about the Bond and his Adversaries on their Allegiance whether they had given any thing or promised to give And finding tde Chancellor free from Bribery the Lords acquitted him of his Accusation aforesaid then at the Chancellor's Request the Fishmonger was committed until he found Sureties to appear de die in diem before the Lords and before any Judges who should be assigned The Lords committed the Clerk also and afterwards the Parliament growing to an end the Complaint was referred wholly to the Judges to hear and determine the same as well for the King as for the Parties Auxi avant come les Peres de Parliamento might have done if the Plaint had been fully treated in their presence and in the Parliament The Proceedings before the Judges were in a Schedule annexed to the Parliament-Roll and were thus A Commission was granted in Parliament unto Tressilian Chief Justice of the King's Bench and Bellknap Chief Justice of the Common Pleas to hear and determine
the King and Lords deliberated The Judges of the Common Law and the Sages of the Civil Law were charged by the King to give their best Counsel to the Lords of the Parliament how to proceed in their Appeal rightly Who after long Consultation answered the Lords That the Appeal is in no point made and declared according to the Order of the Common or Civil Law The Lords after long Debate declared by the Assent of the King that the Offences being committed by the Peers the Cause should be determined in Parliament only and that by the Law and Order of Parliament only and adjudged the said Appeal with the Process thereon depending to be good according to the Laws and Course of Parliaments And the Default of Appearance was Recorded and Judgment given c. against those who made their default After which Sir Nicholas Brembre a Commoner was brought Prisoner before the King and the Lords at the request of the said Appellants And the said Articles being read he pleaded Not Guilty which he was ready to defend with his Body Whereupon the Commons of the Parliament said that they had seen and considered all the said Articles which they found to be true and that they likewise as much as in them lay did also accuse the said Appellees which they would have done and it appertained to them to have done had not the aforesaid Appellants pursued the said Appeals Whereupon was answered by the Lords of Parliament That the Battel doth not lie in this Case but that they upon examination of the Articles would proceed to Judgment Here I note That the Lords cannot proceed against a Commoner but upon a Complaint of the Commons But here is not expressed how the Commons came daily to have a sight of these Articles I deny not but after they were read in their presence for their presence is always understood in Judicature upon Life and Death prout postea they demanded a sight of the Articles and considered of them apart and then supplied the Defects thereof And this also is to be observed that the Commons accuse Commoners as the Lords do their own Peers I suppse that Brambre was denied the Battel because the Commons accused him also otherwise he ought to have it granted upon an Appeal Afterwards the Commons themselves accused and impeached divers Commoners prout 2 Mar. Sir Rob. Belknap L. Chief Justice of the Common Pleas Sir John Carey late Chief Baron and other Justices c. The Records were brought into the Parliament at the Demand of the Commons and the Commons accused the Justices for their untrue Answer made unto sundry Questions before the King at Nottingham to the emboldning of the aforesaid Offenders in their traiterous Designs and Attempts c. Unto which they answered c. were adjudged c. And then follows another Impeachment of the Commons thus The Accusements and Impeachments made by the Commons of the Realm against Simon de Burle Sir John Beauchamp Sir John Salisbury and Sir James Berners Knights do ensue underwritten whereof the Commons pray Judgment in this present Parliament Thus much touching the Appeal of 11 R. 2. But this begot another Appeal in the 21th of the said K. R. 2. in the Parliament begun Sept. 14. being the Feast of St. Oswald Edmond Earl of Rutland Tho. Earl of Kent John Earl of Hunt Tho. Earl of Nottingh Joh. Earl of Somerset Jo. Earl of Salisbury the Lord Despencer and William Scroop Chancellor unto our Lord the King in their proper persons delivered unto our Lord the King then sitting in the great Hall within the Castle at Nottingh in his Royal Estate with a Crown on his Head a Bill of Appeal against Tho. Duke of Gloucester Richard Earl of Arundel and Tho. Earl of Warwick The which Bill of Appeal is recited in that Parliament and as it seems per Copiam verborum inde was penned by the Advice of some Civil Lawyer It seems also they were very careful herein to avoid all Errors of the former Appeals For in that of 11 R. 2. they appealed divers Commoners but here the Lords appealed none but Peers then it was done by word of mouth they being called to the King upon some other occasion but now it was done solemnly in writing and was delivered to the King sitting in his Throne of State There they offer'd to prove their Accusation by Battel a thing not meet for the Parliament or in what course his Majesty would ordain it but here the Bill was read in Parliament and they said they have been and are ready to prove c. as you our thrice Redoubted King and this Honourable Court of Parliament should ordain Nor were they less careful in their proceeding to Judgment to avoid the Errors in the former prout in the Answer But these Appeals are now abolished by 1 H. 4. c. 14. and not without cause for as this Accusation was extraordinary so were the Proceedings carried with a strong hand the former by the Lords this by the King prout ex Chroniculis in quinto comparet cum Codice 1 Maij A Brief whereof so much as concerns this Appeal follows hereafter at large with the Precedents of 21 R. 2. Ad quod Parliamentum convenire jussit Rex omnes Dominos sibi adhaerentes cum Sagittariis viris armatis tanquam ad bellum contra hostes omnino progressuri fuissent Ipse vero Rex ut efficacius proficere possit nequam conceptus malefactores de Comit ' Cestr ' congregari fecit ad velandum locum stramine c. Erexerat autem Rex quandam domum amplissimam in Palatio Westmonaster ' quae pene totum Palatii spatium occupavit in qua sibi Thronus parabatur altissimus pro cunctis Regni Statibus locus largus pro Appellantibus in uno latere locus specialiter deputatus in alio latere locus largus pro Responsu assignatus seorsim vero pro Nobilitatibus Parliamenti qui non fuerunt electi per Communitatem Et Forale nuncupatur Parliamentum Thus much of Accusation by Appeal which when any of the Lords accused others out of Parliament was summoned but God be thanked they are abolished 1 H. 4. c. 14. CHAP. III. The Parties Answer THe Party accused is to be brought to his Answer otherwise the whole Judgment will be erroneous as was Mortym 23 E. 3. Numb 10. and Spencer's 15 E. 2. and John Matrevers 21 E. 3. Numb 65. dors Although the Party be absent yet the Parliament hath used all means possible to have his Answer prout 21 R. 2. where the Lords Appellants and the Commons also accused Tho. Mortymer of Treason and the Commons said That it was notoriously known unto them that the King had sent his Mandate by W. D. a Serjeant at Arms unto the said Mortymer in Ireland commanding him upon his Allegiance to come before the King in all haste to answer c. And that the
that Judgment 21 H. 6. against Sir Jo. Mortymer upon an Indictment of Escape out of Prison being committed upon suspition of Treason the said Mortymer's Answer is not recorded yet it is said he was brought before the Lords and the said Indictment read in his presence that he made an Answer unto it though not mentioned And this proves that the Party is to be brought to his Answer else Mortymer's presence had not been necessary Anno 7 R. 2. Numb 2. The Duke of Lancaster and Gloucester complained to the King That Sir Tho. Talbot with others conspired the Death of the said two Dukes and prayed the Parliament to judge thereof The Fact is judged High Treason and Writs sent to divers Sheriffs to apprehend him which Writs were retornable into the King's-Bench And upon Proclamation made in Westminster-Hall That upon the Sheriffs Return and the not-Appearance of the said Thomas he should be convicted of Treason and forfeit c. This was extraordinary in terrorem But what may not the whole Parliament do They may alter Law much easier than Form In the Answer is to be considered First In what Causes the Party is to answer as a Prisoner and in what as a Freeman Secondly When Councel shall be allowed him and when not Touching the First The Parliament hath guided their Proccedings therein secundum Legem terrae Judicium Parium According to the 2th Chapter of Magna Charta Nullus liber homo capietur vel imprisonetur c. nisi per legale judicium Parium suorum vel per legem Terrae And therefore in Causes Capital whether the Party accused be a Lord of the Parliament or a Commoner he is brought a Prisoner to his Answer secundum legem terrae prout 4 E. 3. Numb 1. c. The Lord Berkley accused by the King for Murder of E. 2. Anno 1 R. 1. Jo. Lo. Gomeniz and W. Weston Upon the Demand of the Commons for surrendring Forts beyond the Seas An. 4. R. 2. Sir Ra. Ferrers Knight was apprehended for suspition of Treason Anno 28 H. 6. Although the Lords refused to commit the Duke of Suffolk upon the Commons complaint of him of a common Fame of Treason yet when they accused him of particular Treason he was Committed and brought Prisoner to his Answer But in Cases of Misdemeanors it is otherwise then the Party accused whether Lord or Commoner answers as a Freeman The Lord within his Place the Commoner at the Bar and they are not committed till Judgment unless upon the Answer of a Commoner the Lords find cause to commit him till he find Sureties to attend c. lest he should fly prout Jo. Cavendish upon the Lord Chancellor's Demand of Justice against him for his false Accusation was Committed after his Answer until he put in Bail Anno 7 R. 2. And before Judgment And so Michael de la Poole the said Chancellor 10 R. 2. after his Answer and many Replies of the Commons was Committed and presently Bayled Anno 50 E. 3. William Lord Latymer and John Lord Nevill being impeached by the Commons answered in their Place so did the Bishop of Norwich and the Lord Chancellor 7 R. 2. And the said Lord Chancellor too 10 R. 2. answered in his Place though afterwards he was committed before Judgment upon Request of the Commons The Bishop of Bristol 1 Jac. and the Duke of Buck. 1 Car. 1. All these answered as Freemen in their Places their Offences not being Capital And the like Precedents there are of Commoners Anno 50 E. 3. Richard Lyons William Ellis and John Beecher did answer as Freemen being impeached by the Commons And whereas the Commons did that year also accuse Adam de Bury who was absent the Lords sent for him to come but he contemned their Authority and came not Then the Lords as it seemeth by the Record sent to apprehend him and he could not be found wherefore they awarded that all his Goods should be put in Arrest Ibid. N. 17. It is briefly entred Adam was sent unto to come and answer in Parliament he came not nor could be found Wherefore it was awarded c. Which is sufficient to prove A Commoner is not to be brought a Prisoner to his Answer for a Misdemeanor if he will appear 5 R. 2. The Mayor and Bayliffs by name and the Townsmen of Cambridge were complained of in Parliament for many Outrages against the Scholars there and the Lords sent one Writ to the Mayor and Bayliffs that then were and to the Commonalty to appear and answer and another Writ to the Mayor and Bayliffs that did the Outrage and they appeared in person and the Commonalty by their Attorney This was the Ancient Course Yet even in these Days viz. 15 R. 2. the Peer of Holland complained of a great Riot committed by Henry Tibb and divers others in the Parsonage-House of one Williams Whereupon a Sergeant at Arms by vertue of a Commission to him made brought up the said Tibb and one more only the principal doers therein before the Lords in Parliament who upon the Return of the Examination confessed nhe whole Matter and were committed But I suppose the Sergeant at Arms was sent for haply they would have obeyed no Writ and yet he was sent for two of the principal Offenders only At this Day if the Commons accuse a Commoner of Misdemeanors in such a state of Liberty or restraint as he is in when the Commons complain of him in such he is to answer prout 18 Jac. Sir Francis Michell and Sir John Bennet were both committed by the Commons before their complaint to the Lords and so they answered as Prisoners But that in a sort may be called Judicium Parium suorum 18 Jac. The Earl of Middlesex being then Lord Treasurer and accused of Misdemeanors only absented himself from the House His Charge was sent to him in writing and he answered in writing At the Day prefixed for his Trial he was summoned by the great Usher to appear He came without his Staff and kneeled until the Lord Keeper willed him to stand up There he protested That he ought not to answer in that Place and desired others might not be prejudiced thereby And I hope they will not The Earl did himself the first wrong by absenting himself from the House for he might have stayed there until Judgment unless when his own Cause came in agitation §. 2. Touching Councel In all Causes of Felony Treason c. Councel antiently was denied to the Party accused prout Anno 4. R. 2. Numb 21. Sir Ralph Ferrers was brought to the Parliament under the Guard of the Marshal of England and arraigned at the King's behalf for suspition of Treason who prayed to the King and to the Lords to have Councel in that Case Unto whom it was said That in all Matters wherein Councel ought to be granted by the Law of the Land the King or Lords would allow it And it was further
Conferences wherein his Majesty by Testimony becometh a Witness and in case the Earl should be convicted his Commission cometh to the Crown c. he desired their Lordships to put his Majesty in mind thereof for the declining his Accusation and Testimony 9 Maij These Questions were proposed to the Judges 1. Whether in Treason or Felony the King's Testimony is to be admitted or not 2. Whether Words spoken to the Prince who afterwards is King make any alteration in the Case And the Judges were to deliver their Opinion therein on the 13th Day of the said Month of May. And on Saturday Morning being the said 13th Day the Judges were desired to deliver their Opinions The Lord Chief Justice said They appointed to meet and to consider thereof and Mr. Attorney desired to know the time of their Meeting and before that time he brought them a Message from the King viz. That his Majesty was so sensible of his Honour that he would not suffer the Right of his Crown which may justly be preserved to be dampnified in his time That they might deliver their opinion in any particular Questions concerning the Earl of Bristol but not in the general Questions whereof his Majesty could not discern the consequence which might happen to rhe prejudice of the Crown Every particular Case varying according to the circumstances 4 E. 3. The Articles were read against Roger Mortimer and it followeth thus Wherefore our Lord the King doth charge our Earls and Barons Peers of this Realm That forasmuch as these touch him principally and all the People of this Realm That you do unto the said Roger Mortimer right and lawful Judgment such as appertaineth to such an one to have who of all the faults abovesaid is very guilty as he believeth And for that the said things are notorious and known to be true unto you and to all the People of the Realm This was all the Proof produced against Roger Mortimer The Lords hereupon judged him But afterwards Anno 28 E. 3. Numb 10. they reversed it as erroneous so that although the King's Testimony confirmed by the common Fame was 4 E. 3. received against Roger Mortimer yet it was afterwards adjudged Nul Accusament in the 28th of the said King E. 3. In that Parliament of 18 Jac. divers Witnesses were examined in open House in the Causes of Mompesson and the Lord Chancellor upon Interrogatories agreed on beforehand and divers at a Committee And it was resolved That none might be examined upon any thing that might accuse Whereupon the Earl of Southampton one of the said Committee signified That a Scruple did arise Whether Sir Ralph Horsey should be examined what Bribe he gave to the Lord Chancellor and upon the Vote it was agreed he should dissentiente Comite Dorset Eodem Anno The Lords did find that the Testimony of divers of the House of Commons was necessary touching the Complaint against Mompesson and therefore sent a Message to this effect The House of Commons before their Complaint exhibited against the Lord Cobham and Doctor Feild for a Bribe concerning Egerton's Case 18 Jac. examined one Davenport but not upon Oath The Lords when they had examined Davenport found that the Case was not so foul as he related it unto the Commons and therefore sent his Examination again unto them and then punished him for his false Relation CHAP. V. The Judgment FIrst Unto whom the Judgment belongeth and the King's Assent and of the Presence of the Spiritual Lords the Commons and the Judges Secondly The Judgment it self and by whom it was demanded and by whom rendred In making of our Antient Laws the Commons did Petere the Lords Assentire and the King Concludere So in Judgments on Delinquents in Parliament the Commons might accusare petere Judicium the King assentire and the Lords only did judicare §. 1. That the Judgment belongeth only to the Lords appeareth by all the old Records that I have seen prout 4 E. 3. against Mortymer The Earls Barons and Peers did Award and Judge by assent of the King c. 7 H. 4. In the Case of the Earl of Northumberland Protestation was made by the Lords That the Judgment belonged unto them only For the clearing of this Point That the Judgment belongeth to the Lords only vide the Protestation of the Commons 1 H. 7. which excludes the Commons from any Right thereunto viz. On Monday Novemb. 3. The Commons made their Protestation in manner as they did in the beginning of this Parliament and then further declared to the King That no Record in Parliament be made against the Commons That they are or shall be Parties to any Judgment given or hereafter to be given in Parliament Unto which it was then answered by the Archbishop of Canterbury by Command of the King That the Commons are Petitioners and not Demanders and that the King and the Lords have ever had and of Right shall have the Judgment in Parliament in manner as the Commons themselves have declared saving in Statutes to be made and in Grants of Subsidies and the like though to be done for the common profit of the Realm the King will have especially their Advice and Assent And that this Order be held and kept at all times to come This excludes the Commons from all Right to Judgment But whereas it faith the Judgments in Parliament belong only to the King and Lords That is to be understood touching the King's Assent only as apppeareth by the Replication of the Parliament in this Point in 2. H. 5. which was thus In the Parliament at Leicester 2 H. 5. Numb 11. Tho. Earl of Salisbury Petitioneth to reverse a Judgment in Parliament against John Earl of Salisbury his Father in 2 H. 4. and one of the Errors assigned was for that the Judgment was not given by the King but by the Lords Temporal only whereupon the Earls of the Parliament at the King's Commandment gave Copies of the said Judgment of 2 H. 4. and of the said Errors assigned unto the Kings Serjeants at Law then present Ad sequentem solutionem Juris Regni in hac parte avisarentur Super quod Servientes ad Legem crastino die Domino Regi ac Dominis Spiritualibus Temporalibus praedictis hoc in Parliamento petierunt scrutinium pro Domino Rege in hac parte Quibus dictum erat ex parte Domini Regis Quod ipsi procederent ulterius absque aliquo scrutinio habendo quoad declarationem judicium super supradicta c. And afterwards Day was given at the next Parliament which was held at Westminster eodem Anno 2 H. 5. In which Parliament the said Judgment of 2 H. 4. being examined and discussed at full videbatur tam dicto Domino nostro Regi quam etiam Dominis suis antedictis c. quod idem Judicium Declaratio praedicta versus eundem Johannem c. sunt fuerunt bona legalia
Question is out of that which seemeth to be most generally agreed on In the Judgment it self is to be considered First Whether it be ultra Legem Secondly By whom to be Demanded Thirdly By whom to be Rendred Touching the First Judgments in Parliament for Death have been strictly guided per Legem Terrae otherwise they would not have judged the Earl of Kent the King 's own Unkle to be Hanged Drawn and Beheaded might it be left to their Discretion Vide Literas E. 3. to the Pope speaking of this Earls Judgment by the Parliament for Treason Cui Sententiae subductis tamen quibusdam opprobriosis in detestatione tanti Sceleris de Rigore Legis nostri Regni infligenda erat Dolentes acquievimus 4 E. 6. But the Roll is lost The Lords judged Mortimer to be Drawn and Hanged as a Traytor 4 E. 3. Simile pro Simone de Bereford N. 2. Ibidem Numb 3. They judged John Matrevers to be Drawn Hanged and Beheaded 10 R. 2. Weston adjudged a Traytor for delivering up of Castles Forts c. And so Jo. Lord Gomeniz a German was adjudged to die but because he was an Alien and a Baronet and was not the King's Liege-man he should be Beheaded That being the Death used in Germany to Gentlemen 10 R. 2. Simon de Burley the Earl of Arundel and others were Adjudged to be Hang'd Drawn and Beheaded for Treason They differ something yet herein they agree That the opprobrious Death of a Traytor is to be Drawn and Hang'd which the Parliament could not alter no not in their Judgments against the King 's own Unkle It was per Legem Regni infligenda The King might pardon all and usually did except Beheading of the Nobility of his own Blood and of later Times to all Noblemen As the Parliament could not dispence with nor omit any part of the Judgment on Traytors so they could not add more than the Law required And this may appear by their Judgments of Forfeitures of the Parties Estate The Parliament 4 E. 3. spoke nothing what Mortimer should forfeit to the King He well knew the Law could give the King all his Lands in Possession Reversion or Service Vide The Restitution of 28 E. 3. Numb 10. The Ordinances in 50 E. 3. Numb 45. against Women which shall make suit c. to the King against Alice Peirce by Name is Upon pain of as much as she can forfeit and to be banished But had it not been for the former Ordinance the Lords would not have given any such Judgment against her Her Offence being only for procuring Favour to her Friends from the late King contrary to a former Order of Council 11 21 R. 2. The Lords Adjudged the Forfeitures to the King of some Convicted on the Appeals greater than the Law will give but they passed Special Acts in each Parliament to Confirm both the Judgments and Forfeitures 1 H. 4. The Lords Adjudged and Declared the Earls of Kent Salisbury and others to be Traytors and to Forfeit Numb 30. as the Law of the Land willeth 7 H. 4. They Adjudged the Earl of Northumberland and Lord Bardolph to Forfeit for Treason all their Lands in their own Demesne or where others were seized to their Use. And so in Fines and Amerciaments the Judgments anciently were indefinite prout 42 E. 3. Numb 26. John at Lee is Committed to the Tower there to remain till he hath paid Fine and Ransom to the King and at the King's will and pleasure 50 E. 3. He is Awarded to Prison at the King's Will and to be put to his Fine and Ransom according to the quality of his Trespass who being brought before the Lords they told him his ill Deeds were so great that he had not wherewith to make satisfaction and he submitted to the King's Grace and the Lords Awarded all his Goods to be seized and his Body to be in Prison at the King 's Will. Eodem Anno The Lord Latimer to make Fine and Ransom at the King's Will Numb 28. Item William Ellis the like Num. 28. John Peecher the like Num. 33. Cavendish Awarded 7 R. 2. to pay Dammages to the Chancellor and to remain in Prison until c. and the King de Fine suo competenti sibi inde debito but not set down how much to the King These Fines were not put in certain for that the Law limits them to the King's Will But not doubt but after the Judgment the Lords did rate them as may be gathered out of Richard Lyons where after Judgment they called him before them to consider it seems at what Rate to Tax the same And they found it not sufficient And in Ancient Court-Barons the Amerciaments were ever offered after the Presentments In the Star-Chamber all Fines were usually mitigated after the Censure and that Court had Antiqua Vestigia Magni Consilii I hold that anciently the Fines were often Rated or Taxed And if the Lords may mitigate a Fine à Majore they may Tax it after the Judgment the Certainty not being then specified Judgments for Satisfaction In Complaints of Extortion and Oppression the Lords Awarded Satisfaction to the Parties wronged which sometimes was certain sometimes general but always secundum non ultra Legem 42 E. 3. Numb 18. Full Restitution was made unto William Latimer of the Wardship and Marriage of the Heir of Sir R. Latimer whereof he was outed by Duress by John at Lee. But this was done by a great Councel per Commandment du Roy after the Judgment William Ellis 50 E. 3. Awarded to pay to Botheil and Cooper 20 l. apiece for their Damages Num. 25. John Peecher Num. 23. Awarded que il face yeulx a les parties Compl. de lui pour les extortions issint prizes Jo. Nevile Num. 34. is Awarded to make Restitution to the Lady Ravensholme in Certainty for an Oppression done to her whereof the Commons complained 7 R. 2. The Parliament referred the base Accusation of Cavendish against the Lord Chancellor to be heard and determined by the Justices in such sort as if the Parliament had determined the same And the Justices adjudged him convict of Slander and that the Lord Chancellor should recover his Damages which they Taxed at 1000 Marks and that he be imprisoned until he had satisfied the Chancellor and the King pro Fine competenti sibi inde debito The Iudgment against Alice Peirce Anno 10 R. 2. was That if she had purchased any Lands by Force or Duress soit il pur Fine or Deed en pais or Deed enrolled or otherwise that her Purchase be held for none and the parties who hold themselves aggriev'd have their Process against her in Chancery By Advice of the Grand Councel Let Right be done to the Parties and Restitution made according as the Case requireth so as the Purchase made bona fide be not undone or annulled any way References to the Common Law Nor could the Lords judge any Complaint of
preist with the King Anno 50 E. 3. Numb 28 29. The Lord Latimer is Awarded to prison destre en guard du Marshal and afterwards upon Mainprise of diverse Earls suffered to go at large So it seemeth that first he was Committed and delivered to the Earl Marshal immediately Primo R. 2. William Fitz-Hugh was Committed to the Tower but it appeareth not who carried him thither At this Day the Lords have used to impose some Corporal punishment on Misdemeanors prout Flood And at this Day if a Peer be Committed to prison the Gentleman Usher hath the Charge of him thither and the Serjeant attending on the Great Seal prout Anno 18 Jac. 16 Febr. The Earl of Berks was sent to the Fleet by the Gentleman-Usher for forcibly thrusting the Lord Scroop in open House Anno 21 Jac. 13 Maii. The Earl of Middlesex was Committed to the Tower and a Warrant given to the Gentleman Usher to carry him thither Anno 1 Car. 1. In the Parliament begun 6 Febr. The Gentleman-Usher was commanded to bring the Earl of Bri-Bristol But if a Commoner be Committed the Serjeant at Arms attending on the Great Seal doth usually carry him to prison and he also hath the Charge of him and to see any Corporal punishment inflicted on him Anno 18 Jac Wright and two Serjeants at Mace who had Arrested a Servant to the were Censured to ride with Papers on their Heads for their wilful Contempt and Scorn of the Priviledges of Parliament And for that the Serjeant at Arms did not see the whole punishment Executed on them he himself was Committed CHAP. VIII For Recovery of Damages or Restitution of the Party aggrieved ANno 50 E. 3. Botheil and Cooper had each of them twenty pounds Awarded for their Damages and it is not there declared how they should recover the same In the same year John Lord Nevile upon Complaint of the Commons is awarded to make Restitution to the Executors of the Lady Ravensholme neither when the same is to be restored nor the manner how the same shall be recovered is declared In those two Cases I conceive the Parties are to have their Remedy the Parliament being ended in the Chancery and not in any other Inferior Court at the Common Law But the Lords in Parliament may direct how it shall be Levied Anno 1 R. 2. The Lords adjudged Alice Peirce to forfeit all her Lands and Goods to the King and notwithstanding this Forfeiture If she hath purchased any Lands by Force or Duress it shall be void and the Party grieved to have his Remedy by Process in the Chancery and by Advice of the Lords of the Councel Let Right be done and Restitution made Anno 7 R. 2. John Cavendish was awarded to pay 1000 Marks to the Lord Chancellor for his Damages and to remain in Prison until he had paid it FINIS Peers to render Judgment on Peers Quite contrary to the Law of the Land How Bishops are tryable The nature of the offence In whnt Cases c. Of Judgments on Delinquents Four manner of Accusations in Parliament Complaints by Petitions Petition Respons Answer Answer Impeachments of the Commons Observe Observe Mortymer and Cobham William de la Pool Duke of Suffolk impeached General Fame Lord Visc. St. Alban Chancellor accused who was Sir Francis Bacon Accusation Ex parte Domini Regis Of Accusation by Information Ex parte Domini Regis The Judgment defective in all points The Lord Berkley arraigned waved his Peerage Quest. Resolv Observ. The Earl of Bristol charged with Treason Articles against the Duke of Buckingham Quest. Resolve 1. Observ. A Petition The Lords cannot impeach any to themselves A great Oppression * Promâ—oter The Fishmonger contra L. Chancellor The Chancellors Answer The Chancellor acquitted The Fishmonger guilty of the Defamation Bish. Williams Lord Keeper The History of the Appeal of 11 R. 2. The Lords cannot proceed against a Commoner but upon complaint of the Commons Appeals abolished per Stat. 1 H. 4. c. 14. An Answer required though the Duke was known to be dead Found guilty long time after he was dead so forfeited his Estate The Party accused to be brought to his Answer Touching Councel In Misdemeanor the Party may have Councel to answer The Mayor and Commonalty of Cambr. accused The Parl. hath compelled a present Answer iu Misdemenors and without Councel The Replication next which belongs to him or them that sue Impeachment against the L. Latymer His Answer His Answer to each Particular W. Ellis impeach'd His Answ. The Reply The Lord Nevile impeach'd Witnesses Witnesses by the Commons A Committee for Trial of Alice Peirce George Duke of Clarence arraigned No man questions the Duke but the K. none answers the King but the Duke Against Law that the King should enforce Testimony against a Delinquent A Royal wise Answer The Commons accusare petere Observe In what Cases the King's Assent is necessarily required Peeres de la terre A bold Saying This Duke of Glouc. was many years after imprisoned for this at Calice there died in his Bed In Judgment on Misdemeameanors the King's Assent is not required The Lords Spiritual In Cases of Misdemenor they may be present In Cases Capital may not be present The Protestation of the Bishops forever Observ. No exceptions taken for the Absence of the Prelates Note especial The Presence of the Commons in Cases Capital The Presence of the Commons not necessary The Presence of the Judges How the Lords resolve on their Judgments Judgm for Satisfaction Touching the Demand By whom Judgment ought to be rendred The Precedents of Life and Death Obj.
said unto the said Sir Ralph That forasmuch as the Matter stands so much upon Treason That by the Law he ought not to have Councel in his Case of no earthly Creature but obliged himself to answer at his peril This last Answer was given upon deliberation And 5 R. 2. Numb 44. Sir Richard Cogan Knight being accused by Richard Clevedon Esquire for extorting 200 l. from the Prior of St. John's of Jerusalem in a riotous manner required Councel which was denied him for that the Cause touched Treason 28 H. 6. The Duke of Suffolk being accused of Treason by the Commons desired Copies of the Articles but no Councel and he answered without Councel Primo Car. 1. In the Parliament begun Febr. 6. The King's Attorney exhibited Articles of Treason and misdemeanor against John Earl of Bristol and he had no Councel allowed him which was on this occasion Anno 21 Jac. The Earl of Middlesex was denied to answer by Councel touching Misdemeanors only that Precedent of 10 R. 2. of Michael de la Poole being mistaken as I conceive And afterwards the Lords considering the Inconveniences that might happen thereby did order that Councel should be allowed to all Delinquents in all Cases generally At the Voting of which Order the King and Prince were present and I did expect some Reply thereunto on the King's behalf and especially observed whether the Prince would any ways dislike of it either in Words or Countenance and he shewed none which made me verily believe that he had been acquainted therewith beforehand but he was not as I shall make it appear In this present Parliament upon reading the Articles of Treason and Misdemeanors against the said Earl 6 Maij and upon the Earl's Answer to them on the sudden The Journal is The Lords did answer that he should have Councel allowed him to plead his Cause But on Monday the 8th of May the King sent a Messenger to them That he not suing for a Default in Cases of Treason and Felony It is an ancient fundamental Law of this Kingdom and desired the Lords to proceed with that Caution that ancient fundamental Laws may receive no blemish nor prejudice On the 15th of May the Lords answered this Message That by an Order Dated May 24. 21 Jac. Anno 1624. Counsel was then present and they had allowed the Earl of Bristol Councel before the Message came May 14. His Majesty is content the Earl of Bristol to have Councel although his Majesty knew that by the Law he ought to have none but takes Exceptions to that Order of the 24th of May 1624. That it was occasioned by the Earl of Middlesex whose Cause was only Criminal which never till now extended to Cases Capital And that the Judges were neither advised with therein nor the King's Councel heard for his Majesty and therefore his Majesty is not satisfied about the general Order but will advise c. The Lords thereupon allowed him Councel to plead c. This Parliament of 6 Feb. 1 Car. 1. was dissolved before the Cause of the Earl of Bristol was heard and determined and that the said Earl was sued in the Star-Chamber for the very same Matter contained in the Articles against him in Parliament All which were but Misdemeanors And if it be lawful for me to speak freely I believe the Lords thought they were but Misdemeanors when they allowed him Councel in Parliament But in Cases of Misdemeanors only the Party accused was never denied Councel Anno 10 R. 2. The Commons accused Michael de la Poole of many Misdemeanors in open Parliament before the King Afterwards in the King's Absence the Chancellor said first to the Lords That he was Chancellor of England and for the time represented the King's Person in his absence and demanded whether he ought to answer in the Presence of the King since he was impeached of Acts done whilst he was Chancellor This received no Answer Secondly He said That he had appointed by the Advice of his Councel Monsieur Richard le Scroope his Brother-in-Law should have the words of his Answer to the first Impeachment Whereunto the Lords said That it was Honest for him to speak by his own mouth And thereupon he made Protestation that he might add to and take from that which should be honourable and profitable for him The which things unto him were granted And the said Chancellor declared as well by himself as by the mouth of the said L. Scroop That c. I note here that Councel was not denied him but that it was only told him It was honest for him to answer by his own mouth Anno 7 R. 2. The Bishop of Norwich for Misdemeanors in general Numb 15. was particularly charged by the Chancellor Numb 18. The Bishop said That albeit in this Case he ought to have Counsel yet making Protestation That at all times he might amend his Answer he would answer in person and so he did Numb 19. Anno 1 Car. 1. The Duke of Buckingh being accused by the Commons of Misdemeanors and Copies of the Impeachments and Answered by Councel in this manner viz. Die c. The Duke being in his Place and standing his Councel came to the Bar and then read the Dukes Answer as it was penned in writing Yet sometimes in Cases of Misdemeanors when the Party accused hath demanded the Copies of the Articles and Councel and Time to answer the Parliament hath compelled them to make a present Answer without Councel but this is rare and I have seen but one Precedent of it Anno 5. R. 2. Die Animarum Numb 45. The Mayor Bayliffs and Commonalty of Cambridge were accused by c. For that they in the late Tumults and Wars confederated with other Misdoers did break up the Treasury of the University and compelled the Chancellor and Schollars to release to the Mayor all their Liberties and all Actions c. In Num. 46 47. Several Writs were sent to command them to appear They appearing at the Day and answering to such Articles as were objected by the King's Councel and delivering in the two Releases which were cancell'd Numb 48. Then the Chancellor and Scholars exhibited divers Articles against them by way of Petition Upon the reading whereof it was demanded of the said Mayor and Burgesses what they would say why their Liberties should not be seized into the Kings hands as forfeited And they required Copies of the Articles and Councel and Respite to answer Numb 54 55. To the Copy of the Articles it was answered That inasmuch as they had heard them read it should suffice for by the Law they ought to have no Copy And touching Councel it was said That wherein Councel was to be had they should have it and therefore they were then to answer to no Crime nor Offence but only touching their Liberties Numb 56. After many dilatory Shifts the said Burgesses submitted themselves to the King's Mercy touching their Liberties only saving