that whereas he being Chancellor was bound by Oath to further the King's Profit and Commodity in all things He notwithstanding contrary to the said Oath and not regarding the King 's great necessity had purchased of the King Lands and Tenements to a great value procuring the same by reason of his Office to be Surveyed at an under value 2. Item Whereas at the last Parliament nine Lords were appointed to see and examin the State of the King and Realm which being done and their Advice delivered to the King as well by word as writing by what means the same might best be remedied The Chancellor promised in open Parliament that the same should be put in Execution which was not done through his default he being a Principal Officer 3. Item Whereas the Subsidy granted the last Parliament was appointed by the assent of the King and Lords in what sort it should be expended and not other ways employed in this was his default he being Principal Officer 4. Item Whereas John Tidman had a certain Annuity from E. 3. which he had since forfeited and the payment thereof was discontinued for the space of 20 or 30 years The said Chancellor knowing this purchased his Interest and procured the King to confirm the same unto him c. 5. Item That whereas the great Master of St. Antony being a Schismatic had thereby forfeited to the King all his Revenue within this Realm the same Chancellor had taken the same to Farm of the King for 20 Marks And whereas the Master should have livery thereof again he could in no wise get the same until he had bound himself to pay 100 l. yearly to the Chancellor and his Son 6. Item That during the time of his Chancellorship there had passed divers Charters of Pardon as well for Murders Treasons and Felonies as also for rasing of Rolls and imbezelling of Laws and Records and especially since the beginning of this Parliament a Charter of Franchises was granted to the Castle of Dover to the disinheritance of the Crown and to the Subversion of all the Places and Courts of the King and his Laws 7. Item That at the last Parliament divers Sums were allotted for the defence of the Town of Gant notwithstanding the same Money was lost c. by his default c. Of all which Articles the Commons demand Judgment of the Parliament c. I have been long upon this considering all the Precedents follow at large These are the most formally set down of all the Accusations hitherto of the Commons yet most of these are very general and uncertain Howbeit the Chancellor took no exceptions to the insufficiency thereof but answered to every particular The next Accusation of the Commons is 11 R. 2. in the 21. of the King they accused divers of those whom the Lords had first appealed whereof when we speak of all Appeals Anno 21 R. 2. the Commons accused and impeached of Treason the Archbishop of Canterbury Numb 15. and demanded Judgment against him and had it Numb 16. Eodem Parl. The Commons accused and impeached of Treason Tho. Mortymer and John de Cobham a Baron of Parliament and had Judgment against them both Anno 28 H. 6. William de la Pool Earl Marshal and Duke of Suffolk was accused and impeached by the Commons in manner following viz. The Duke being the great Favorite of the King and Queen the common People laid all the fault of the evil Government on him and made Ballads thereof which I have seen taxing his Loyalty to the King The Parliament of 28 H. 6. begun the 6th of November and held to the 6th of December and was then Prorogued to the 22th of January The Duke of Suffolk whether provoked by the Ballads then made on him or by some Speech in the House of Commons whereof nothing is recorded did require of the King that he might be specially accused and be heard to answer for that many reported him to be an untrue man and he made a solemn Protestation of his Loyalty wherein he sheweth that his Father and three of his Brethren died in the Service of the King and of his Father and Grandfather That he himself had served 34 years in the Wars being then but a Knight That he had been taken Prisoner and paid 20000 Marks for his Ransom That he had been 30 years of the Order of the Garter Chancellor to the King 15 years and had been 17 years in the King's Wars without returning home And he prayed God so to pardon him as he had been true to the King and required his Purgation Numb 14 15. Whether this was sent to the Commons or what notice they had of it appears not but on the 2th of January the Commons required the Duke might be committed to Ward for his own Confession for that as I concieve he himself confessed That the general Fame went of him And the Lords on Consultation of the Justices thought the same to be no good Cause of Commitment unless some special Matters were objected against him Numb 16. On the 28th of January the Speaker declared to the Lords how the Duke of Suffolk as it was said had sold this Realm to the French who prepared to come hither And that the said Duke for his own defence had furnished Wallingford Castle with all Warlike Munition And then on request the Duke was committed to the Tower On the 7th of February the Chancellor and some other Lords were sent by the King to the Commons a thing not usual but wherefore they were sent is not expressed happily to be informed what they could say against the Duke or to reconcile the business But the Commons delivered to this Chancellor and those other Lords a Bill of Articles against the Duke wherein they accused him of divers Treasons viz. For intending to marry his Son to the Heir of the Duke of Somerset and thereby for want of Issue of the King to claim the Crown For practising with the French c. Numb 18 19. and they require Prosecution against him Numb 17. March 19. The Commons delivered another Bill of less Offences against him Numb 28 29 30 c. requiring those Articles also to be inrolled and the Duke put to his answer These before recited are all the ancient Precedents I find recorded the following are of later times Anno 1 Jac. The Commons accused and impeached by word of Mouth Sir Giles Mompesson and Sir Fr. Michell Knights for many Oppressions done to the People They impeached them to the Lords at a Conference and afterwards delivered their Declaration against them First Concerning a Patent for Inns and Osteries Secondly A Monopoly for Gold and Silver Thread Thirdly Concerning a Patent of Concealments Eodem Parl. They accused Francis Lord Viscount St. Alban at a Conference of Bribery and Corruption in his Office of Chancellor They delivered no Writing but a Committee of the Lords having considered the Proofs and drawn up
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
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
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
to do this and confess it was contrary to the Law of the Land Secondly to preserve their own Right to Judge none but the Peers in Case of Life and Death For then the Kings Steward is to sit in the Chancellors place and the Lords are to be Tryers and Judges And so by judging others then their Peers descended below their degrees For none but Peers are so to be Tryed and Judged It is otherwise in Cases of misdemenors then the Chancellor keeps his Place and the Lords are only Judges and not Tryers they may command a Jury to be Impannelled For Tryal of the Facts if the truth appear not by the Parties answer the Testimonies are Exhibited as 1 R. 2. in the Case of Alice Peirce Here ariseth a Question Whether the Spiritual Lords de Jure are tryable by their Peers or no Out of Parliament they are not to be Tryed by the Peers But the doubt is whether in time of Parliament they are to be so Tryed or no To me it seems they may if the matter be moved against them in time of Parliament For as it is in the Parliament at York 15 E. 2. in the Act for the Repeal of the Spencers banishment they are Peers in Parliament Note that the Petition for the Repeal saith that the Bishops are Peers in Parliament The Bishops name themselves Peers of the Land And the Chancellor to the King And the Act stile them Peers of the Land in Parliment There be divers Presidents also of the Tryal of Bishops by their Peers in Parliament as well for Capital offences as misdemenors whereof they have been accused in Parliament As the Archbishop of Canterbury 15 E. 3. N. 6 7 8. Et ibid. postea 44 39. Et ibid. 17 E. 3. 22. And the Bishop of Norwich 7. R. 2. for misdemeanors So were the Bishops of York and Chichester Tryed for Treason by their Peers in Parliament upon the Appeal of the Lords Appellants 11 R. 2. Anno 21 R. 2. The Commons accused the Archbishop of Canterbury of Treason and the temporal Lords judged him a Traytor and banished him But if the Bishop be accused out of Parliament he is to be tryed by an Ordinary Jury of Free-holders for his honour is not inheritable as is the temporal Peers out of Parliament save that only of their Tryal As no day of Grace to be granted against them in any Suit A Knight to be returned upon the Pannel where a Bishop is party and no Process in a civil action to be awarded against his body and the like And by this it appeareth what Persons are de Jure tryable by the Lords in Parliament viz. their Peers only Touching the nature of the Offence Herein the complaint and accusation as well of the Party delinquent as offence is to be considered For upon the Information of the King at his Commandment or upon complaint of private Persons the Lords may not by the Law try any but their Peers for Capital offences And the Lords have ever referred offences of other nature complained of by private Persons to the Common-Law if there be remedy unless some special cause appear fit for their own Judgment But upon complaints and accusations of the Commons the Lords may proceed in Judgment against the Delinquent of what degree soever and what nature soever the offence be For where the Commons complain the Lords do not assume to themselves tryal at Common-Law Neither do the Lords at the tryal of a Common Impeachment by the Commons decedere de jure suo For the Commons are then in stead of a Jury and the Parties answer and examination of witnesses are to be in their Presence or they to have Copies thereof And the Judgment is not to be given but upon their demand which is in stead of a verdict so the Lords do only judg not try the Delinquent In the Lords proceedings in Judicature is observed also a certain form which varieth according to the nature of the complaint and the matter complained of so that no general Rules can be given therein though many Judgments have been reversed for errors whereof there be many Precedents And the Execution upon life and death hath been stayed at the Request of the Commons the proceedings being illegal whereof I have seen only one Precedent touching the Duke of Clarence tempore E. 4. Wherefore for our better understanding of the Form of Judicature let us first consider the several causes wherein Judicature belongs to the Parliament and then the ancient way of proceedings in each Cause CHAP. II. In what Cases Judicature belongs to the Parliament JUdicature belongs to the Parliament in these six Cases 1. In Judgments against Delinquents as well for Capital crimes as misdemeanors wherein is to be considered 1. The Accusation 2. The Parties Answer 3. The Replication 4. The proof by Examination of witnesses or otherwise 5. The Judgment 6. The Execution 2. In the Reversing erronious Judgments in Parliament are to be considered 1. The Petition 2. The bringing in the Record 3. The Assignment of Errors 4. The Reversal thereof 3. In the Reversing of erronious Judgments given in the Kings Bench are to be considered 1. The Petition 2. The Writ of Error 3. The bringing in the Record 4. The Assignment of Errors 5. The Writ of Scire facias 6. The Defendants answer 7. The Reversal of the Judgment 4. In deciding of Suits long depending either for difficulty or delay wherein is to be considered 1. The Petition 2. The advice with the Judges 3. The determination of the Lords 5. In hearing complaints of particular Persons on Petitions wherein is to be considered 1. The Petition 2. The Defendants answer 3. The Proof 4. The Orders of the Lords 6. In setting at Liberty any of their own Members or Servants imprisoned and in staying the proceedings at the Common-Law during the Priviledge of Parliament wherein consider 1. The Quality of the Person Imprisoned 2. The Parties Answer at whose Suit he is imprisoned 3. The manner of his Charge In certifying the Elections and Returns of Knights and Citizens for the Parliament But now the Commons alone determine of this Wherefore I will only shew that the Commons did heretofore Petition to the Lords for redress herein and what course was then taken I leave it to the Clerk of that House to shew how the Commons proceed herein at this day Of the rest in Order And first Of Judgments on Delinquents § 1. In Judgment against Delinquents is first to be considered the Accusation For as in the Kings Bench the Justices proceed not to the Arraignment of any Offender without an Indictment So the Lords have not proceeded to Judgment unless the Crimes have first been presented to them by way of Accusation If otherwise their Judgments have been reputed erronious as that against the Spencers was in 15 E. 2. Rot. 2. claus lit penden For the same Persons cannot be both Accusers
tell openly before them the full Truth saith clearing the Lord Nevil but afterwards he confessed against him He was examined in presence of two of the House of Commons Many Complaints were made against Richard Love and William Ellis in the Parliament and a Commission sent to enquire of the behaving themselves in their Offices 1 R. 2. Alice Peirce Not Guilty and that she would prove by Testimony of the late King's Houshold whom she named The Offence being for procuring E. 3. privately to revoke an Ordination of his Councel The Lords gave her Day and in the mean time named a Committee to examine Witnesses The Committee were the Duke of Lancaster Earls of Arundel Cambridge Northampton and of March And divers Witnesses who are named were sworn upon the Holy Evangelists and diligently examined upon the Articles objected against her The Lord Beauchamp was sworn and examined and the Duke of Lancaster being one of the Committe was diligently examined before the rest of the said Committee but not sworn ad testificandum Earls and Dukes are not sworn A Jury of the Houshold was impannelled for her Trial before the said Committee The Order made by the Lords for the Examination and Trial. Per l'assent Prelat des Seigneurs du dit Parlement ordeint fuit que testes Articles serounttrious per testimonies per enquest d'eux que seront de Hostel de dit Appeale que le verite purroit mieux estre conus By vertue of this Order the said Committee did take the Examination of the Witnesses and after their Examinations it follows thus Et nient minus seroit venire devant le Duc les dits Commissionaries Monsieur K. B. c. And so names eight Knights and nine Esquires queux fuerint jures adire le verite si le dit Alice fuit culpable de les Articles avant dits ou nemy Note This is the only Jury I find Recorded for Misdemeanors in Parliament I make no doubt but if the Delinquent doth put himself upon the Trial of his Country That a Jury ought to be impannelled therefore But if the Commons impeach any man they are in loco proprio and there no Jury ought to be only Witnesses are to be examined in their Presence or they to have Copies thereof And the Judgment not to be given until the Commons demand it For Proof that the Witnesses ought to be examined in their Presence vide 50 E. 3. The Impeachment of the Lord Nevile where Richard Love was examin'd in presence of two Knights of the House of Commons who contraried his Testimony Numb 44. The Proof that a Delinquent may put himself super Patriam vide 4 E. 3. Where the Lord Berkley who waved his Peerage was tried by a Jury of Gloucestershire and Warwickshire for that he was Arraigned for the Murder of E. 2. at Berkley-Castle in Com. Glouc. And he answered That he was sick at that time at Bewdley in Com. Wigorn. But he was Arraigned upon an Information ex parte Dom. Regis and not upon the Impeachment of the Commons for then they had been Patria sua And as the Party may put himself super Patriam so he may demand Battel But not when he is accused ex parte Domini Regis prout Clarence Anno 18 E. 4. Nor when he is accused by the Commons prout Brembre 11 R. 2. When the Earl of Arundel was brought to answer the Appeals the Lords Appellants threw down their Gloves by way of a Challenge The Earl answered Si essem liber non resurgeram Note That the Commons had accused them also Vide a Herald Parl. lib. Mayleress And thereupon it was testified openly in Parliament That our Lord the King had expresly said that day before the same Lord then present in Parliament That he knew not how nor in what manner the said Richard was come into such an Office about him and which is more he did not know him to be his Officer Anno 21 R. 2. The Lord Cobham being brought to his Answer for procuring a Commission to himself and others in derogation of the King's Prerogative 11 R. 2. and for executing the said Commission He denied the procuring thereof and that he would not have used the said Commission without the King's Commandment and that he told the King so much and that the King commanded him not to intermeddle therein Whereunto our Lord the King answered and said That he was in such Governance at that time that he could not otherwise say because of them that were then about him And that the Lord Cobham knew well that the said Commission was made at his Will The which thing Jo. de Cobham did not gainsay at his Trial and so Judgment passed on him for the same and he adjudged a Traytor Et qui non vult Anno 18 E. 4. George Duke of Clarence was Arraigned in Full Parliament There is no mention thereof in the Roll but in a Manuscript of that time written by a Frier of Croyland Tam testis est vera disceptatio ea habita inter duos tantae humanitatis Germanos Nam nemo arguit contra Ducem nisi Rex nemo respondet Regi nisi Dux Introducti autem erant nonnulli de quibus à multis valde dubitatur an Accusatorum an Testium officiis sunt functi utraque enim officia in eadem causa eisdem personis non congruunt Delevit enim object a Dux ille per Justificationem asseruit si exaudiri possit manuali defensione teneri causam suam Quid multis numeror Parliament les reputantes audit as Informationes sufficere formarunt in eam sententiam damnationis quae ab Henrico Duce Buck. pro tempore noviter creato Anglorum Seneschallo prolata est postea dilata est executio quo ad usque Prolocutor Communitatis in superiorem Cameram cum sociis suis adveniens novam ejus conficiendae rei requisitionem fecerat consequenter infra paucos dies factum est id qualecunque genus Supplicii secreti infra Turrim London utinam sine malo Anno Dom. 1418. Regni vero Regis E. 4. 18. per Anonimum libris Cotton Here let us examine for what illegal proceedings the Commons desired to have the Cause tried again The Author saith Nemo arguit contra Ducem nisi Rex This the Commons held to be against Law That the King himself should enforce either Article or Testimony against a Delinquent in a Capital Cause For it is inconvenient That he who hath the Forfeiture of Life Lands and Goods shall be Accuser Witness or Judge The Commons were present at this Trial and considering the Inconveniences thereof they returned and made the Request ut supra Primo Car. 1. In the Parliament of 6 Febr. John Earl of Bristol was accused by the King's Attorney of Treason beyond the Seas 8 May 1626. The said Earl petitioned the Lords That seeing several points of that Charge are grounded upon private
Declaratio Judicium Per quod cousider atum fuit in praesenti Parliamento per praedictos Dominos tunc ibidem existentes de assensu dicti Domini Regis quod praefatus nunc Comes nihil capiat per Petitionem aut Prosecutionem suam praedictam Et ulterius tam Domini Spirituales quam Temporales praedicti Judicium Declarationem praedictam versus dictum Johannem quondam Comitem Sarum ut praemittitur habita sive reddita de assensu ipsius Domini Regis asserunt fore esse bona justa legalia Et ea pro hujusmodi ex abundanti decreverunt adjudicaverunt Out of the last recited Precedent of 2 H. 5. may be observed That the Temporal Lords by Assent of the King may give Judgment on Offenders for capital Crimes and therefore Whereas it is said 2 H. 4. That the Judgment belongs only to the King and Lords that is herein explained The King's Assent ought to be to Capital Judgments and the Lords Temporal to be only Judges therein and not the Lords Spiritual But in Misdemeanors the Lords Spiritual and Temporal are equal Judges and the King's Assent is not necessary as shall appear §. 2. In what Cases the King's Assent is necessarily required Touching the King's Assent it is expressed in divers Judgments on Capital Offences 4 E. 3. against Mortimer Anno eodem against Simon de Bereford And there be divers other Judgments that year of this Nature wherein the King's Assent is not expressed but against John Matrevers Les Judices Peeres de la terre Judges de Parlement adjudgent agardant que le dit John be drawn hanged c. not mentioning the King's Assent And there are two other Precedents of the same Nature briefly Recorded Estre ou tiel Judgment est accorde que soit sait de Burges de Bayons John Dever And Item outiel Judgment est accorde de Tho. de Gurney W. de Ogle not mentioning by whom the said Judgments of Death were given 2 H. 4. The Judgment against the Earl of Salisbury and others for Treason is by the King's Assent and so is the Judgment of H. 4. against the Earl of Northumberland and 11 21 R. 2. upon those several Appeals In all which the King's Assent is recorded And so the Articles objected against Simon de Burley without the King's Assent and against his will which I shall here recite Item The aforesaid Dukes Earls of Arundel and Warwick Anno 50 E. 3. Richard Lyons pleading a Warrant from the King which he could not shew followeth thus c. And Tho. Mortimer continueth his traiterous purpose and by force of men took and imprisoned divers men your Liege c. Amongst others Simon de Burley Knight and him they carried in the Parliament at Westminster held the Morrow after the Purification of our Lady in the 11th year of your Reign and there were surmised against him divers points of Crime and Treason and thereupon was demanded of every Lord there present in Parliament his Advice of the said Simon touching the said Crime And afterwards the said Dukes and Earls of Arundel and Warwick would know your Advice Thrice Redoubted Lord. You answer plainly That the said Simon de Burley was not guilty of any the said Points and then they took upon them traiterously to have constrained you to have given your Assent to the Judgment which they have purchased against the said Simon upon the Points aforesaid And you Thrice Redoughted Lord would not consent to any Judgment to be given against the said Simon And yet notwithstanding the aforesaid Dukes and Earls took upon them Royal Power in prejudice of you and derogation of your Crown and without your Assent and against your Will and in your Absence and in the Absence of many other Peers of Parliament and without their Assent and against their Will awarded that that said Simon should be drawn c. and thereupon caused him to be beheaded but traiterously against your Crown Peace and Dignity This I have recited at large Unto which the Duke of Gloucester made no Answer being dead before the said Earl of Arundel pleaded the King's Pardon which was not allowed him The said Earl of Warwick confessed all the Articles in the said Appeal and put himself upon the King's Grace and the said Tho. Mortimer could not be found This Parliament begun at Westminster Die Lunae post Festum Exaltationis Sanctae Crucis and was adjourned to Shrewsbury And on Tuesday 28 January the Parliament there shewed unto the King how that they in the said Parliament at Westminster had accused and impeached John de Cobham in the 11th year of the King's Reign with others convicted in this Parliament accroaching to himself Royal Power in Judgment Awarded that the Lieges of the King Simon de Burley and James de Barners Knights should be Drawn Hanged and Beheaded without Assent of the King and against his will and in his absence and in the absence of many other Peers of Parliament who with held themselves and would not sit in such Judgment and against their will traiterously against the Peace of the King his Crown and Dignity And prayed our Lord the King to cause the said John de Cobham to joyn in this present Parliament to answer to the things aforesaid and to ordain such Judgment against the said John de Cobham as the Cause demands The said Jo. de Cobham was brought c. And touching the said Judgment awarded against the said Simon and James the said Joh. de Cobham said That it was told him by them who were present then That it was the King's Will to make such Judgment against the said Simon and James convicted of the said Judgment and Award which he had so given against the said Simon and James notwithstanding his Answer Whereupon c. Judgment was given against him and he adjudged a Traytor Here is objected That the Judgment against Simon de Burley was given by the Lords without the King's consent Secondly Against his Will Thirdly In the King's Absence Fourthly In the Absence of many of the Peers and against their wills Touching the First viz. The King 's not Assenting It may be Objected That the Lords gave Judgment against Weston 1 R. 2. without the King's Assent but yet not against the King's Will for they respited the Execution until the King might be informed thereof And the Reason then given for the said Respite was For that the King is not yet informed of the manner of this Judgment But whether the Lords proceeded to that Judgment against Weston before they informed the King because the King's Assent is not necessary or for that it being the last Day of the Parliament they had no leisure to inform his Majesty thereof let the Reader judge yet it seemeth to me that the King's Assent is necessarily required in Capital Causes and Judgments for these two Reasons First For that all