Mr. HIDES ARGVMENT Before the LORDS in the upper House of Parliament. Aprill. 1641.
MY Lords, I am commanded by the Knights, Citizens, and Burgesses of the House of Commons to present to your Lordships a great and crying grievance, which though it be complayned of in the present pressures, but by the northern parts, yet by the Logick and Con∣sequence of it, it is the grievance of the whole Kingdome. The Court of the Presidents, and Counsell of the North, or as it is more usually called, the Courts of Yorke, which by the spirit and ambition of the Ministers, truste• there, or by the naturall Inclination of Courts to inlarge their owne power and Iurisdiction, Page 2 hath so prodigiously brake downe the bankes of the first Councell, in which it ranne, that it hath almost over-whelmed that Countrey un∣der the Sea of Arbitrary power, and involved the people in a Laberynth of distemper, op∣pression and poverty.
Your Lordships will give mee leave not with presumption to informe your great un∣derstandings, but that you may know what moved the house of Commons to their resolu∣tions to remember your Lordships of the foun∣dation, and erecting this Court, and of the pro∣gresse and growth of it.
Your Lordships well know, that upon the suppression of all religious houses to such a va∣lew in the 27 yeare of H. 8. from that time to the thirtieth yeare of that Kings raigne, many (not fewer then sixe Insurrections) and Rebel∣lions were made in the Northerne parts, under pretence of that quarrell, most of them under the command of some eminent person of that Countrey, the which being quieted before the end of the thirtieth yeare, that great King well knowing his owne mind, and what hee meant to doe with the great Houses of Religion; in the yeare following for prevention of any in∣convenience that might ensue to him upon such distemper, in the 31. yeare of his Reign granted a Commission to the Bishop of Landaffe, the first President, and others for the quiet go∣vernment Page 3 of the County of Yorke, Northum∣berland, Cumberland and Westmerland, the Bishop∣ricke of Durham, the counties of the Cities of Yorke, Kingston upon Hull, and New-castle upon Tyne. But my Lords this Commission was no other then a Commission of Oyer and Terminer, onely it had a clause at the end of it, for the hearing of all causes reall and person, quan∣do ambae partes, vel altera pars sic gravata pauperta∣te fuerit, quod quomodo vis suum secundum legem Regni nostri, aliter persequi non possit, which clause how illegall soever, for that it is illegall and voyd in Law, little doubt can be made yet whether they exercise that part of the Com∣mission at all, or so sparingly exercised it, that poore people found ease and benefit by it. I know not, but at that time I find no complaint against it, till the comming in of King Iames the Commission continued still the same, and that in the first yeare of his Reigne to the Lord Sheffeild varied no otherwise from the former, saue, onely it had reference to Instructions which should be sent, though any new sent or no is uncertaine, but wee can find none.
In Iune, in the seventh yeare of the Reigne of King Iames a new Commission was gran∣ted to the same man (the Lord Sheffeild) very differing from all that went before, it being left out, that they should enquire per sacramen∣tum bonorum & legalium hominum, and to heare Page 4 determine secundum leges Angliae, Relation be∣ing had onely to the Instructions, which were the first Instructions, wee can find were sent thither, though I told your Lordships there were some mentions of some In 1. I shall not trouble your Lordships with these Instructi∣ons, nor with the other that followed in 14. Iacobi to the same man, nor in 16. Iacobi, when a new Commission was granted to my Lord Sunderland, nor indeed with any till we come to these present Instructions, and Commissions under which that part of the Kingdome groans and languisheth.
My Lord of Strafford came to that govern∣ment in Decemb. 4. Caroli, and since the Commission hath beene three severall times removed, in the fift yeare in March, in the eighth in Novemb. in the thirteenth yeare of his Majesties raigne into that Commission of 8. and 13. a new clause served in for the granting, se∣questring, and establishing Possessions accord∣ing to instructions, crowded in a Masse of new exorbitant and intollerable power, though our complaint be against this Commission it selfe, and against the whole body of those instructi∣ons: I shall not mispend your Lordships pre∣tious time in desiring to have the whole read, but shall presume to trouble your Lordships only with five or six of the instructions, that by the vast irregularity of those your Page 5 Lordships may judge, how insupportable the whole burthen is. I shall not trouble your Lordships with the ninth Instruction, though it be but short, which introduceth that, miseram servitatem, ubi jus est vagum, & incognitum, by requiring an obedience to such ordinances, and determinations, as be or shall bee made by the Councell Table, or high Commission Court. A grievance my Lords, howsoever consuetudo & peccantum claritas nobilitaverit han• culpam, of so transcendent a nature, that your Lordships noble Iustice wil provide a remedy for it, with no lesse care, then you would rescue the life and blood of the Common-wealth.
Reade the 19. 22, 23, 24. 29. and 30. I will not trouble your Lordships with reading more, there being among them in the whole 58. Instructions, scarce one that is not against, or besides the Law.
Whether His Majestie may caution out a part of his Kingdome to be tryed by Commission, though according to the rules of Law, since the whole Kingdome is under the Lawes and government of the Courts established at West∣minister, and by this reason the severall parts of the Kingdome may bee deprived of that privi∣ledge, will not bee now the question; that his Majestie cannot by Commission erect a new court of Chancery, or a proceeding according to the rules of the Star-chamber, as most clear Page 6 to all who have read Magna Charta; which allowed no proceedings, nisi per legale judicium parium & per legem terrae: for our court of Chancery heare by long usage and proscripti∣on is growne to bee as it were lex terra. But my Lords, the thirtieth Instruction goes further, and erects such an Emprie, such a Dominion, as shall bee lyable to no contrary.
The Courts of Westminster, my Lords have superintendences over all inferiour Courts to regulate their jurisdictions, if they exceed their limits. As to hold Plea of greater valew, or the like in his exercise of Iurisdiction, the Iudges are sworne to grant, and send prohibi∣tions, and to stop the granting of these pro∣hibitlons, or to neglect them, when they are granted, is the greatest and boldest scorne of the Law, and the Law-makers that can be ima∣gined.
The Kings Courts at Westminster, having bin alwayes of that awefull and reverent esteeme, with inferiour Iudges, that the Instances of such contempts against them are very rare and exemplary in the punishment.
The Bishop of Norwich in Trinity Terme, in the twentieth yeare of Edward the third, in Rot. 289 in the common Pleas in Hillary Terme 21. in the Kings Bench, was attached for diso∣beying a prohibition at the sute of Stracill, upon full and solemne dissension of the whole mat∣ter, Page 7 the Court resolved, that the proceedings of the Bishop were in obedientiam & diminuco∣rem Domini, & potestatis Regiae authoritatis suae lectionem & coronae suae exhereditationem manife∣stum, &c. As the words of the Records are, and therefore adjudged the temporall tyes of the Bishop to be seised into the Kings hand, and great, verely great dammages to bee paid to Plaintiffes: And whosoever gave directions for these stout Instructions, might have re∣membred that no longer since then Michael∣mas, in the seventh yeare of Eliz. Rot. 31. An Attachment was graunted against the Arch∣bishop of Yorke then President of that Coun∣sell, for forbidding the Goaler of Yorke to de∣liver one Lambert his Prisoner, who was sent for by a habeas corpus from the Kings Bench, and if they would have believed the resolution of all the Iudges in England, in Trinity Term, in the 6. yeare of King Iames, they would have knowne how unfit it had beene to enlarge that Iurisdiction, since most of their proceedings being of an inferiour nature to what they are now growne, were then declared to be illegall & inconsistant with the liberty of the Subject.
And can such a court, as this my Lords de∣serve to live? what a compendious abridge∣ment hath Yorke gotten of all the courts in Westminster Hall, whatsoever fals within the cognizance, orjurisdiction of either courts here Page 8 is compleatly determinable within, that one Court at Yorke, besides the power it hath with the Ecclesiasticall and high Commission courts.
What hath the good Northern people done, that they onely must be disfranchised of all their priviledges by Magna Charta, and the Petition of right, for to what purpose serve these Statutes, if they may be fined and imprisoned without Law, according to the discretion of the Commissioners, what have they done, that they, and they alone of all the people of this happy I land must be disinheri∣ted of their birth-right, of their Inheritance. For prohibitions, writs of Habeas Corpus, writs of erour are the birth-right, the inheritance of the Subjects.
And 'tis here worth your Lordships obser∣vation, that to those many prohibitions, which have beene granted from above, for till of late, the court of Yorke had not the courage to dispose prohibitions, nor indeed till our courts here, had not the courage to grant them. T was never knowne, that court pleaded the Iurisdiction of their counsell, which without doubt they would have done upon the advan∣tage of many great persons, in whose prote∣ction they have alwayes beene, had they not knowne the Law, could not be misinterpreted enough to allow it.
Page 9Your Lordships remember the directions I mentioned of Magna Charta, that all procee∣dings shall be per legale Iudicium parium, & per legem terrae, now these Jurisdictions tell you, you shall proceed according to your discretion that is, you shall doe what your please, onely that wee may not suspect this discretion will be gentler and kinder to us then the Lawe: speciall provision is made no fine, no punish∣ment shall be lesse then by the Law is appoin∣ted, by no meanes, but as much greater, as your discretion shall thinke fit; and indeed in this Improvement wee find: Arbitrary courts are very pregnant, if the Law requires my good behaviour, this discretion makes mee close Prisoner, if the Law sets me upon the Pillory, this discretion appoints me to leave my eares there.
But this proceeding according to discretion is no new expression, twas in the first commis∣sion I told your Lordships of in the 31. Hen 8. that they should proceed secundum legem et con∣suetudinem Regni Angliae vel aliter secundum •a∣nas discretiones vestras, which in the interpre∣tation of the Law, and that is the best interpre∣tation, signifies the same thing, to proceed according to discretion, is to proceed accor∣ding to Law, which is summa discretio, but not according to their private conceit or affection, For talis discretio (sayes the Law) discretion•m Page 10 confundit: and such a confusion hath this dis∣cretion in these Instructions produced, as if discretion were onely removed from rage and fury, no inconvenience, no mischiefe, no dis∣grace, that the malice or insolence, or curiosity of these commissioners had a mind to bring upon that people, but through the latitude and power of this discretion the poore people have felt this discretion, hath beene the quicke sound which hath swallowed up their proper∣ty, their liberty: I beseech your Lordships rescue them from this discretion.
Besides, the charge that this Court is to his Majesty, which is neere 1300. l. per annum, your Lordships will easily guesse, what an un∣supportable burthen the many officers (whose places are of great valew) the Atturnies, Clarkes, Registers, and above 1000 Sollici∣tors that attend the Courts, must bee to that people (insomuch) that in truth the whole countrey seemes to be divided into the Offi∣cers and Dependants upon that Court: And the people upon whom these Officers of that Court prey and commit rapines, as he said in Patronius, Omnes hic aut captantur, aut captunt; aut cadavere quae laterentur, aut corni quae laterunt. Truly my Lords, these vexed worne-people of the North are not sutors to your Lord∣ships, to regulate this Court, or to reforme the Iudges of it, but for extripating these Page 11 Iudges, and the utter abolishing this Court, they are of Catoes mind, who would not sub∣mit to Caesar for his life, saying, he would not be beholding to a Tyrant for injustice, for it was injustice in him to take upon him to save a mans life, over whom hee had no power.
So these Gentlemen desire not to be behol∣ding to this Court hereafter for injustice. The very administration of injustice, founded up∣on such illegall principles being a grievance and oppression to the subject.
First upon the whole matter the house of Commons is of opinion, that the Commis∣sion and Instructions whereby the Resident and Counsell of the North, exercise a Iuris∣diction is illegall, both in the creation and ex∣ecution.
Secondly, that it is improfitable to his Ma∣jesty, for besides so much neere thirteene hundred pound taken out of His Majesties re∣venues, every yeare His Majestie looseth the great benefit would accrew to him upon writs and upon Fines, upon Out-lawes, and other profits, which redound to his Majestie out of his Court here.
And which I had almost forgot to tell your Lordships of, that his Majesty may bee sure to have benefit from that Court (nota∣ble care is taken, by the fifty three Instructions, that if any money remaines over and above Page 12 all disbursements, it shall be bestowed in pro∣viding Houshold-stuffe, and furniture for the house, where the Lord President and Counsell use to be.
And lastly, that it is inconvenient and grie∣vous to His Majesties subjects of those parts.
And therefore they are humble Sutors to your Lordships, and the house of commons, on this behalfe, that since this people doe and have in all matters of duty and affection con∣tend with the best of His Majesties subjects, that they may not be distinguished from them in the manner of His Majesties Iustice and pro∣tection, since this court originally instituted and continued by his Majesty, for the ease and benefit of his subjects, is apparently inverted to the burthen and discomfort of them that your Lordships will joyne with, the House of commons in beseeching His Majesty, that the present commission may be revoked, and no more such granted for the future.
