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THE Execution of all our Laws hath been long since distri∣buted by Parliament out of inferiour Courts, in such sort as the Subjects were directed where to complain, and the Justice how to re∣dress wrongs and punish offences: And this may be the reason of the Judges opinion in Thorps Case, 31. Hen. 6. Num. 37.
That Actions at Common-Law are not determined in this High Court of Parliament, yet complaints have ever been received in Parliaments as well of private wrongs as publick offences. And according to the quality of the Person, and nature of the offence, they have been retained or referred to the Com∣mon-Law.
Touching the quality of the Person the Lords of the Parliament did not anciently try any Offenders how great soever the offence was, unless he were their Peer. As by that of 4 E. 3. N. 2. where when the King commanded the Lords to give Judgment on Simon de Bereford, and divers others also, who were not their Peers, for the murther of E. 2. and the destruction of the Earl of Kent, Son of E. the first. A proviso and agreement was made and recorded in these words, Et est assensu & accord, &c. And it is assented and accorded by our Lord the King, and all the Grandees in full Parliament. That albeit the Peers as Judges of the Parliament have took upon them, and rendred the said Judg∣ment,* 1.1 &c. That yet the said Peers who now are, or shall be in time to come be not bound or charged to render Judg∣ments
upon others than Peers. Nor that the Peers of the Land have power to do this, but thereof ever to be discharg∣ed and acquitted; And that the afore∣said Judgment rendred be not drawn to example or consequence in time to come, whereby the said Peers shall do contrary to the Laws of the Land if the like Case happen, which God forbid. 4 E 3. N. 6. This Proviso and agree∣ment was made by the Lords and Com∣mons, and it had these respects. First to satisfy the Commons, that the Lords by these Judgments intended not to alter the course of the Common-Law, and therefore they disclaimed that they had power to do this,* 1.2 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 Chan∣cellor keeps his Place, and the Lords are only Judges and not Tryers, they
may command a Jury to be Impan∣nelled.
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.
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 Parli∣ment.
There be divers Presidents also of the Tryal of Bishops by their Peers in Par∣liament, as well for Capital offences as
misdemenors, whereof they have been accused in Parliament. As the Arch∣bishop 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 accu∣sed 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 Parlia∣ment, 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.
Herein the complaint and accusation as well of the Party delinquent as offence is to be considered. For upon the In∣formation of the King at his Command∣ment, or upon complaint of private Persons, the Lords may not by the Law try any but their Peers for Capital of∣fences. And the Lords have ever re∣ferred offences of other nature com∣plained of by private Persons to the Common-Law, if there be remedy, un∣less some special cause appear fit for their own Judgment.
But upon complaints and accusations of the Commons, the Lords may pro∣ceed in Judgment against the Delin∣quent 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 ex∣amination 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 Ex∣ecution 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 Ju∣dicature belongs to the Parliament, and then the ancient way of proceedings in each Cause.
JUdicature belongs to the Parliament in these six Cases.
1. In Judgments against Delinquents as well for Capital crimes as misde∣meanors, wherein is to be considered,
2. In the Reversing erronious Judg∣ments in Parliament are to be consi∣dered,
3. In the Reversing of erronious Judgments given in the Kings Bench are to be considered
4. In deciding of Suits long depend∣ing either for difficulty or delay, where∣in is to be considered
5. In hearing complaints of particular Persons on Petitions, wherein is to be considered,
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,
In certifying the Elections and Re∣turns 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 re∣dress herein, and what course was then taken. I leave it to the Clerk of that House to shew how the Commons pro∣ceed herein at this day. Of the rest in Order; And first,
§ 1. In Judgment against Delin∣quents,* 1.6 is first to be considered, the Accusation. For as in the Kings Bench
the Justices proceed not to the Arraign∣ment of any Offender without an In∣dictment, So the Lords have not pro∣ceeded to Judgment, unless the Crimes have first been presented to them by way of Accusation: If otherwise their Judg∣ments 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 and Judges.
I have observed four manner of Ac∣cusations in Parliament.* 1.7
The manner of Accusation ought to be by the Commons alone, and not by the Lords and them together, for so,
Earls, Prelates, Barons, and other Peers of the Land, and Commons of the Realm, did accuse Hugh de le Spencer, 15 E. 2. and one of the Errors assigned for the Reversal was, that the Lords had no Record before them of the Causes con∣tained in their Award, vis. Rot. claus. 15 E. 3. in the Parliament at York. The Reasons may be, because the Lords joyn∣ing in the Accusation with the Com∣mons, have declared their opinion of the Fact, and there needs no further Tryal thereof. Wherefore the Lords who are only Judges may neither accuse any to themselves, nor joyn in the Ac∣cusations with others.
The complaint of the Commons is either by Petition or demand in general, or by Impeachment in particular which is their Declaration against the party accused.
Anno 21 E. 3. n. 38. The Commons complain of Extortion used by certain Merchants, who were Farmers of the Kings Customs of Wools, not naming the Parties, for which they pray remedy
and that the said Merchants may be put to their answer in this Parliament for such outrage and distress done to the people. Which Petition is thus an∣swered.
Let the Merchants be called into the Parliament, Et oient lour Respons, In codem Parl. n. 49. The Commons in another Petition complain:* 1.9 That where∣as diverse aids have been granted to the King for his Wars, certain Merchants by confederacy between them, and in manner of usury have bargained for the same, to the Kings great loss, and the grievance of the Commons, &c. His people pray these Particulars may be examined, in presence of some by the said Commons deputed by good wise and Loyal men during the Parliament.
The King shall assign some of the Sages of his Council to hear,* 1.10 and deter∣mine the things contained in this Article. And if any of the Commons can in∣form the King, for his profit of any of the Points herein contained, let him put it in certain, and he shall be heard, to the end that Right and reason may be done.
And the Justices which shall be as∣signed to enquire of false Mony, shall
have power to enquire of the excess of such Ministers. Though these complaints were general, yet they pointed so di∣rectly to the Parties accused, that John de Worsenham, and Walter de Chairton, did exhibit their Petitions also in their own defence, desiring to come to their An∣swers. What further proceedings were herein is not recorded; The Commons were directed to impeach the Parties whom they accused. If any of the Commons can inform, &c. Let him inform in certain, and he shall be heard, &c. So that although the Com∣mons accusation by complaint be gene∣ral, yet if the complaint be received, and the Parties brought to answer, the Commons may then impeach the said Parties, viz. declare against them in special; and then the Suit is theirs, prout. Anno 50 E. 3. against Lyons, Ellis, the Lord Latimer, the Lord Nevile, Peecher and others.
But if the Commons do only accuse by any way of complaint whatsoever, and do not declare in special against the Party accused, then the Suit is the Kings, and the Party is to be arraigned, or otherwise proceeded against by com∣mandment, Ex parte Dom. Regis, prout
Gomeniz Weston, and Alice Peirce. 1 R. 2.
Anno 1 H. 4. The Commons pray the Lords Apellants in the 21 R. 2. may be put to their answer, and so they were 10 Placit. Coron. of that Parl. n. 1. 2. 3. &c.
Anno 29 H. 6. The Commons pray that the Duke of Somerset, the Dutchess of Suffolk, the Bishop of London, and many others may be abandoned from the Kings Presence during their lives, and not come within twelve Miles of the Court, for that the people spoke evil of them.
The King of his own meer motion is contented that all shall depart,* 1.11 unless they be Lords, and a few of them whom he may not spare from his presence, and so to continue one year, to see if any man can misprove them. n. 6. inter Pe∣titiones Communium. For this was no Accusation, for the Commons did not require they might be banished the Court.
Anno 38 H. 6. The Commons among their Petitions accuse the Lord Stanley of sundry Particulars, as to be of con∣federacy with the Duke of York, and pray he may be committed to Prison.
Primo. Jac. 26 Maii. The Commons by message accuse the Bishop of London, for words spoken of them in the upper House. Of the other kind of complaint by way of demand, I have seen these two Precedents only.
Anno 1 R. 2. The Subsidy to be treat∣ed upon between the Lords and Com∣mons, as the manner then was; The Commons delivered to the Lords a Schedule of their demands to be dis∣patched before Treaty should proceed. Amongst which one was, That all such who without Cause have lost or given up any Castle, Town, or Fortress, to the dishonour of the King, and damage of the People, may be put to their Answer before the Lords and Commons in this present Parliament.
The Complaint herein is general, They accuse such as had delivered up Castles, &c. if it be an Accusation: But they name not the Parties, yet two Delinquents hereupon who were Im∣prisoned in the Tower, for delivery of Castels, &c. were put to their Answer, viz. Gomeniz and Weston, Anno 7 R. 2.
The Commons grant a Subsidy, according to the Tenor of a Schedule indented deli∣vered in Parliament, requiring it may be enrolled in the Parliament Roll verbatim; in which Schedule is this Protestation, That it is not their meaning to grant the said Subsidy, without the Conditions ensuing.
Inprimis, That the Clergy make the like Grant.
Item, That the Bishop of Norwich, and others, be compelled to answer such Sums, as they have received for Service by them undertaken, and not perfor∣med, &c. Numb. 13.
Here the Commons name one of the Parties, against whom they complain, but they impeach him not; and yet he, and divers others, were censured on that general demand.
Of the Impeachments of the Commons,* 1.13 there be these Precedents: Anno 50. E. 3. The Commons having granted the Sub∣sidy, they protested their good will, and firm purpose, to aid the King; and said, That it seemed to them for truth, that if the King had always about him Loyal Subjects, good Councellors, and faithful Officers, he had been rich in Treasure,
and needed not have charged his Com∣mons with Subsidies, &c. Then they desired that three things might be enqui∣red of.
1. First, the withdrawing the Staple from Callis, by the Council and Procure∣ment of some Privy Councellors about the King.
2. Secondly, of Loans to the King by way of Usury, receiving again greater Sums than they disbursed, wherein some Privy Councellors have been Partners.
3. Thirdly, of buying the King's Debts by way of Bargain, some for the 10th Peny, some for the 20th, or 100th Peny, and procuring the King to pay the entire Debt; to the King's loss, and profit of some Privy Councellors, and others of their Covyn: Of which three Articles, and their Dependencies, the Commons said, They would make farther Decla∣ration in special, whensoever it shall please the King to hear them, Numb. 15, 16. Then follows their particular Im∣peachments and Accusations.
First, Richard Lyons, Merchant of London, is impeached and accused by the Commons of many Deceits, Extor∣tions, and many other ill deeds by him done to our Lord the King, and his Peo∣ple, as well during the time he was retain∣ing to the King's House, and to the King's Council, as otherwise, whilst he was Farmer of the Subsidy and Customs of the King. And in special of this, that the said Richard, by Covyn made between him, and some of the Privy-Council of our Lord the King, for their private Profit and Advantage, hath procured many Patents, and Writs of License, to trans∣port great quantities of Wools, and Wool-fells, and other Merchandize be∣yond the Seas, to other places than the Staple at Callis, contrary to the Ordinan∣ces, &c. And so they declare of many other Villanies in great deceipt of the King, and of his Court. Whereunto the said Richard being then present in Parliament, said, &c.
Then follows his Answer in particular to what was particularly alledged against him, and in general to what was gene∣rally charged upon him.
The Lords reassured him for that which was particularly objected against
him, and granted Commissions to en∣quire of the Extortions wherewith he was charged in general.
Then the Commissioners in like man∣ner accused and impeached William Lord Latimer of divers Extortions, Grievances, Deceits, and ill Deeds, viz. of divers Oppressions, when he served the King in Britain, for being Partner with Richard Lyons, &c. and for loss of Towns and Forts beyond the Seas. Numb. 21.
Item, William Ellis of Great Tarmouth was impeached in this present Parlia∣ment in divers manners.
First, by Surmise of the Commons, &c. Numb. 11.
And afterwards John Botheil, and Wil∣liam Cooper, exhibited their two Bills in form which followeth:
To their thrice redoubted Lord the King, and to the said Council shewn, &c. com∣plaining of the Oppressions of the said William Ellis, unto them, and others, &c. and their Oath was taken against him. Numb. 32.
Item, John Peecher of London, Mer∣chant, was accused and impeached by
the said Commons, That he, by the assent and aid of Richard Lyons, and of other Privy Councellors, for their private profit and advantage, have purchased a Patent under the Great Seal of our Lord the King, containing that none shall sell sweet Wines within the Francheses of the City of London, but only the said John. Numb. 38.
Item, John Nevill was likewise im∣peached, &c. for buying the King's Debts, &c. and for loss of Towns beyond the Seas.
Here I observe, that though the Com∣mons complained,* 1.14 50 E. 3. but of three Grievances, viz. of the withdrawing the Staple from Callis; of Loans to the King upon excessive Usury; and of buying the King's Debts; yet when they who were accused appeared, they declared against them for other matters also: As against Lyons, for new Impositions upon Wools, without assent in Parliament; and against the Lord Latimer, for his misgovernment beyond the Seas, and loss of Forts there; and against Peecher, for a Monopoly of sweet Wines, &c.
I observe also,* 1.15 that their Declaration is not made according to the strict forms
of Law, as you may perceive by that against Lyons, wherein so many Extor∣tions are so generally set down against him, that he made no answer to them, neither could, &c. Which Impeach∣ment the Lords notwithstanding did not reject, but supplied the defects thereof, by granting Commissions to enquire thereof. Ibid. Numb. 20. in fine.
Item, In this Parliament of 50 E. 3. an Ordinance was made against Wo∣men's pursuing businesses in the King's Court, and especially against Alice Peirce, Numb. 45. I find no Accusation against Alice Peirce; I only conjecture that the Commons complained of her, though it be not entred, for she is in the number of them whom in the next Parliament of 50 E. 3. Numb. 87. the Speaker of the Commons names to be unjustly convi∣cted in this Parliament: And none were there convicted, but those whom the Commons complained of.
Item, Adam de Bury, Citizen of Lon∣don, was impeached by the Clamor of the Commons in this Parliament of many Deceits, and other ill things done to the King, and to his People, whilest
he was Mayor of Callis, and Captain of Bullingam, and other ways, as more at large appears in one great Bill, delivered in Parliament the last day of this Parlia∣ment at Eltham. And thereupon the said Adam was sent for to come to answer in Parliament, and he came not, neither could be found. Wherefore it was awarded, that all his Goods and Chat∣tels should be put in Arrest; and so it was done by Writs sent to the Sheriffs of London and Kent: And the said Bill is on File with the special Petitions of Parlia∣ment, 50 E. 3. Numb. 11.
Out of this last Precedent, concerning Adam de Bury, I observe two things:
1. First, whom they complained of: The Lords sent for him only to appear before them; they sent not to apprehend him as a Delinquent, until he contemn'd their Demand, whereof more hereafter in the Title of the Parties Answer.
2. Secondly, that the Commons deli∣vered not their Impeachment (that is, their Declaration) against the Party accused, until he appeared before the Lords, and then they kept it untill the last day of the Parliament, in hope that
he would be brought before the Lords; and when they saw he could not be found, they then delivered their Impeach∣ment against him, to the end (as I con∣cieve) the particulars of their Accusa∣tion might remain upon Record against them hereafter.
Here I also observe an Error of the Clerk, that he hath omitted the Procee∣dings against Alice Peirce, John de Leyce∣ster, and Walter Spooner, who were all convicted in this Parliament, as appea∣reth by the Speaker's motion to the King for their Pardons in the next Parliament. 50 E. 3. Numb. 87.
Thus much touching the Commons Accusations and Impeachments.
The next Precedent is in 11 R. 2. in which Parliament the whole Commons with one assent assembled, came before the King, Prelates, and Lords, in the Par∣liament Chamber, complaining grie∣vously of Michael de la Poole, Earl of Suffolk, Chancellor of England, there present, accusing him openly by word of Mouth:
1. First, that whereas he being Chan∣cellor, 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 Parlia∣ment, 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 Parlia∣ment, 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 procu∣red 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 Re∣venue within this Realm, the same Chan∣cellor 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 begin∣ning 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 Com∣mons demand Judgment of the Parlia∣ment, &c.
I have been long upon this, conside∣ring all the Precedents follow at large. These are the most formally set down of all the Accusations hitherto of the Com∣mons, yet most of these are very general and uncertain: Howbeit the Chancellor took no exceptions to the insufficiency thereof, but answered to every parti∣cular.
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.* 1.16 The Commons accused and impeached of Treason Tho. Morty∣mer, and John de Cobham, a Baron of
Parliament, and had Judgment against them both.
Anno 28 H. 6. William de la Pool,* 1.17 Earl Marshal, and Duke of Suffolk, was accu∣sed 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 pro∣voked by the Ballads then made on him, or by some Speech in the House of Com∣mons, 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 un∣true man; and he made a solemn Prote∣station of his Loyalty, wherein he shew∣eth, that his Father, and three of his Bre∣thren, 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 Com∣mons, 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 Con∣fession, for that, as I concieve, he him∣self confessed,* 1.18 That the general Fame went of him: And the Lords, on Con∣sultation of the Justices, thought the same to be no good Cause of Commit∣ment, 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 commit∣ted to the Tower.
On the 7th of February, the Chan∣cellor, 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 Com∣mons delivered to this Chancellor, and those other Lords, a Bill of Articles against the Duke, wherein they accused him of divers Treasons, viz. For inten∣ding 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 Prosecu∣tion 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 follow∣ing 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 Con∣cealments.
Eodem Parl.* 1.19 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 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 Par∣liament, 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 repor∣ted to the House, a Committee was ap∣pointed 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 Com∣plaint 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 Dalli∣son, and of some Misdemeanors whereof they are informed in the great Ward∣robe, and Court of Wards: Which Charge the House sent unto the Trea∣surer, 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 Nor∣wich 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.
The two first are immediately from the King, and the third from the Com∣mandment 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 Mor∣timer Earl of March, and divers others; and 4 R. 2. against Sir Ralph Ferrers, Kt; 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 Bar∣dolph, upon former Proceedings against them in the Court of Chancery. And 2 H. 6. upon request of the Commons against Sir John Mortimer, Knight, indi∣cted in London. In these Cases no Arti∣cles 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 gene∣ral 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 manda∣tum Dominorum, yet were the Parties charged therewith Ex parte Domini Regis.
In Rot. claus. 4 E. 3. There is a Procla∣mation of the death of Edmond Earl of Kent,* 1.21 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 Parlia∣ment 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 Parlia∣liament, 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.
The first Precedents recorded in our Parliament Rolls of Accusations in this kind, are these of 4 E. 3. in the Parlia∣ment 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, reci∣ting 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 law∣ful 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.
Item, In the said manner our Lord the King charged the said Earls, Barons, and Peeres, to give right and lawful Judg∣ment 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 John Matrevers, Thomas de Gurney, and William de Ogle, Numb. 5. But no par∣ticular 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 men∣tioned in the Judgments, yet no doubt but the Kings Attourny did exhibit Ar∣ticles 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 re∣versed; for that he was put to death without any Accusation, which I con∣ceived to be so upon first view of the Repeal thereof.
Anno 21. E. 3. Numb. 10. Where the Petitioners Roger de Mortimer, the Grand∣child 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 wit∣nesses or otherwise to prove the said Articles objected against him. For these Articles are a legal accusation in Parli∣ment, 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, 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 con∣tained therein are notorious and known. They speak not a word of any one wit∣ness 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 con∣demned unseen and unheard upon com∣mon Fame only without any legal Proof, The whole Parliament did very justly Repeal the said Judgment and Record,* 1.22 declaring it to be erronious and defective in all points. And the Lords were wil∣ling to damn the whole Record in all points, least haply it might be alledged against themselves another time for Pre∣cedent.
Anno 15. E. 2. The Lords and Com∣mons 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 accusa∣ment should simply signify no Accusa∣tion, is only the Averment of the Peti∣tion. 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 Par∣liament. 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 mov∣ed 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 Par∣liament, 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 in∣dicted out of Parliament, and by the Kings command proceeded against in the next Parliament, upon the same indict∣ment as in these Subsequent.
In the same Parliament,* 1.23 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 Infe∣rence 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.
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 Berk∣ley in Com. Gloucester, & in eodem Castro in custodia ipsorum murderatus extitit, & interfectus, qualiter se velit de morte ipsius Regis acquietare: dicit, &c. Numb. 16.
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, whe∣ther the Chancellor or Steward of Eng∣land, or who else; All these circum∣stances are omitted. It appears not I say in what manner this crime of the Lord Berkley was presented to the Lords, whe∣ther
by the former general Information against Mortimer, & autres de la Covyn, or by some such Particular Information against him alone, which I rather be∣lieve.
Some such Information there must be of necessity, else how could he be questi∣on'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 er∣ronious. And had his manner of Accu∣sation been erronious also, No doubt but the Lords would have avoyded that error now against Berkley.
The manner how Berkley was arraign∣ed 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 ar∣raigned 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 sig∣nify 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 be∣fore 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 Com∣mons: 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 de∣manded 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 Lan∣caster, 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 con∣cerning certain Letters, which were found and sent to the King and his Coun∣cel. The Letters were also recorded, and read in Parliament, Numb. 17. 18, 19, 20. but the Information exhibited against him, whereupon he was ar∣raigned is not recorded. It is only said, He was arraigned, Ex parte Domini Regis.
[ 1] First, Whether was this Sir Ra. Fer∣rers 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.
[ 2] 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,* 1.25 I am of opinion that the Duke of Lancaster might send Sir Ra. Ferrers to the Par∣liament, because it was then sitting, and might examine the Treason whereof he was suspected, though they could not proceed to Judgment against him, with∣out the Commons, he being a Com∣moner, and not their Peer: And it fell out in the Examination of this business, they found the Letters to be counter∣feited, and so he was acquitted thereof: And so far their proceeding was not ille∣gal. 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.* 1.26 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 a∣gainst 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 pray∣ed 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 Judg∣ment, 2 H. 5. apud Leicester, which he did not, though he assigned for an Error, That his Father was put to death with∣out an accusation.
In the Parliament begun at Westminster Feb. 6. 1 Car. 1.* 1.27 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,* 1.28 which as he said he con¦ceived 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 Ar∣ticles 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 after∣wards the Earls Charge against the Duke, &c. But yet so, as the Earls Testimony against the said Duke be
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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 be∣ing 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 there∣of with the Judges. And if any great difficulty, appear to resort to their Lord∣ships and acquaint them with it. And it was ordered that Mr. Attorney pro∣ceed with the preparation, but the Houses not to be concluded at their next meet∣ing on Thursday. And the Sub-Com∣mittee for Priviledges, &c. to search for Precedents in the mean time. Die Jovis Maii 4. The Sub-Committee for Privi∣ledges 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 deter∣mine 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 Pre∣cedent 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 com∣manded 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 com∣mitted 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,* 1.29 the last Parliament: Thar seeing by Order of the Lords House May 4. the Earl of Bristols cause should be wholly retained in this House, how that might now be done in respect of the Stat. of 35 H. 8. By which it was enacted, That all Treasons committed beyond the Seas, as this Earls were, shall be tryed in the Kings Bench, or before Commissioners Assigned by the King; And an Order of the upper House can∣not
avoid the Statute. Some were of opinion, that the Earl was first to be indicted before Commissioners, appoint∣ed by the King, and that Indictment being returned into the Parliament to be tryed thereon by his Peers, and vouched that Precedent of 2 H. 6. Of Sir John Mortimers Indictment returned into the Parliament.
But then the Cause cannot be wholly retained in the Parliament, neither can it be inferred out of the Precedent of Sir John Mortimer, that the Parliament can try any of Treason unless he be In∣dicted elsewhere. For then the Parlia∣ment should not have so much power, as hath the Kings Bench and other in∣feriour Courts, wherein Capital Of∣fences may be both enquired of and de∣termined. Neither can Sir John Mor∣timers. Indictment thus returned be a leading Case, for Tryal of Peers in Par∣liament for he was but a Commoner, and therefore not to have been judged by the Lords, unless they had first ac∣cused him, and the Commons did so by Informing the Indictment to be true, before the Lords gave Judgment upon him. But their can be no Precedent shewn, that a Peer of Parliament hath
been tryed in Parliament on an Indict∣ment taken elsewhere.
To resolve this Question two things are Considerable.
First,* 1.30 The Statute of 35 H. 8. Whe∣ther the meaning thereof were to li∣mit the Tryal of a Peer in the time of the Parliament (for Forreign Treasons assigned) taken in the Kings Bench, or before Commissioners Assigned by the King, and not elsewhere. But I con∣ceive the Statute hath no such meaning. The Preamble saith, it was doubted whether such Treasons might by the Common-Law of the Land be enquired into, heard, and determined within this Realm of England. For a plain remedy Order, and Declaration herein to be had and made, Be it enacted, &c. So that if such Treasons have not been hereto∣fore enquirable by the Common-Law, then this Statute provides a Remedy and Order for the same hereafter. But this Statute doth not abridg the Parliament of the power it had to enquire of, and determine such Treasons in time of Par∣liament. Whereof there are diverse Precedents, viz. 1 R. 2. Weston and Gomeniz, 50 E. 3. for William Latimer, and John Nevil, 7 R. 2. for the Bishop
of Norwich, & ibid. Numb. 17. for Cressingham and Shipworth, & ibid. Numb. 24. for Sir William Elsingham, Sir Thomas Trevet, and Sir Henry de Ferrers, all Tryed in Parliament for matters done be∣yond the Seas.
The second thing to be considered is, The Order it self which I conceive to be of force notwithstanding the Statute, of 35 H. 8. for that it is neither directly contrary to the Statute, nor repugnant to the Common-Law, otherwise the Act of one House alone cannot alter a former Statute made by consent of both Houses. And this is to be remembred,* 1.31 that the Proceeding against a Peer in Parliament is not necessary.
The Peer accused to be brought be∣fore the Lords and Commons, and then the Lord Steward to sit in the Chancel∣lors place, on the Woolsack and the Ar∣ticles to be read against him by the Clark of the Crown, and upon his An∣swer the Lords do determine of their Judgment, which is afterwards pro∣nounced by the same Lord Steward.
A Question might be whether the Com∣mons have used to sit with their Speaker at these Tryals. If they have then the Court of Requests, or some such place may be provided for the purpose. And thus that whole Cause might be retained in Parliament notwithstanding the Stat. of 35 H. 8. Thus much touching the Accusation, ex parte Dom. Regis, exhi∣bited in a formal Accusation by the Kings Atturney.
The Duke of Clarence was arraigned in Parliament, 18 E. 4. upon the like Information, but the Precedent is not in the Parliament Rolls: Therefore I omit it.
Anno 5 H. 4. The Earl of Northum∣berland was Tryed in Parliament, ex mandato Dom. Regis, upon his own Peti∣tion. The Accusation and manner was thus. The said Earl had raised Forces to have joyned with his Son Hotspur,
in Rebellion against the King: Hotspur was slain in the Battel of Shrewsbury, 21 July 4. H. 4. before the said Earl could joyn with him. Whereupon he dismissed his Forces, and retired to Worksworth Castle. The King after the Battel came to York, and sent for the said Earl, and being come pardoned him for his life but abridged him of his Liberty. The next Parliament was summoned the 20 of October to begin at Coventry the 3. of December. And the Earl had his writ of Summons. This Parliament was prorogued till the 23. of November by new Writs (as the man∣ner then was) returnable Crastino Hillarii then following. But the Earl had no new Summons thither.
Speed saith he was abridg'd of his liberty, but the Record saith, he came before the King and Lords. And not that he was a Prisoner as Gomeniz, and Weston, 1 R. 2. Nor that he was caused to be brought as a Delinquent, sent for as Alice Peirce, 1 R. 2. But that he came before the King, Lords, and Commons of Parliament. And then the Chancellor
told him that upon Wednesday last past, he had been before the King and Lords, and Commons in the same Parliament; and besought the King as he had done before, at his coming before him at York. That the King would do him grace for his misprisions against him, in not keep∣ing his Laws and Statutes, as by one Petition delivered by him in Parliament written in English, The tenor whereof followeth.
To my most dreadful and Soveraign Leige Lord.
I your humble Subject beseech your High∣ness,* 2.1 to have in remembrance my coming into your Gracious Presence at York, of your free will by your goodly Letters.
The which Petition per Commandment du Roy, was examined by the Justices to have their Counsel and Advice therein.
But the Lords by Protestation made claimed the Judgment, to belong unto them only in such Cases, &c.
And so the Lords Tryed him, and acquited him of Treason and Felony, but found him guilty of a Trespass only
which the King pardoned. Here no In∣formation was exhibited against the said Earl, yet the Kings Counsel opened his Offences to the Lords, else how could they appear.
Anno 7 H. 4. The King commanded the Lords Temporal in Parliament, to advise what manner of Process should be made against Henry late Earl of Nor∣thumberland, and Tho. Bardolph late Lord Baron, for certain ill deeds which they had lately committed contrary to their Allegiance. At their meeting the Con∣stable 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 Northum∣berland, 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 Northum∣berland, 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 mul∣titude of people were armed, and train∣ed in the field within the Realm of Eng∣land 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 Parlia∣ment 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 Parlia∣ment 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 pro∣ceed 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 In∣dicted 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 man∣dato 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 Judg∣ment against him, as convict of Trea∣son 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 Com∣missioners in London, (he being no Member nor Peer of Parliament) then to return the Indictment into the Chan∣cery, and then be brought into the Par∣liament.
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 sud∣dainly send for the Commons, and then abruptly read the Information before them, and they as suddainly affirm the same, all these are necessarily under∣stood. 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 accord∣ing to that of, 4 E. 3. Numb. 26.
The manner of Accusation by Infor∣mation, Ex parte Dom. Regis, is when the Commons as any other private Per∣son accuse any man unto the Lords in general, but do not declare the Offences in particular, other then by the Com∣mandment of the King. Articles are drawn up against the Delinquent, Ex parte Dom. Regis.
2 R. 2. The Constable of the Tower, was commanded to bring Gomeniz and Weston, (whose Offences were com∣plained 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 ar∣rained▪ at the Commandment of the Lords, &c.
Eodem anno, Alice Pierce being com∣plained of by the Commons was ac∣cused, 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 Command∣ment, And the practise at this day is, that out of the Complaints of the Com∣mons, as of Mompesson, The Lord Chan∣cellor, 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 Commons complain but impeach not, Notwithstanding the Impeachment the Lords cannot proceed neither can they Impeach any to themselves:* 2.2 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 Com∣mons 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 King, and then at a day, the ancient use in such Cases was this.
The Lords considered of the Com∣plaint, and examined the Proofs produ∣ced by the Commons: Then agreed on their Judgment and caused Proclama∣tion to be made throughout England for the party to appear at a day, else Judg∣ment shall be pronounced against him, with which the Commons are to be ac∣qnainted before the Proclamations are sent for. Then the Return of the Pro∣clamations to be reviewed and examin∣ed, 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 pro∣nounced and not before. Thus it was in 21 R. 2. in Thomas Mortymors Case, &c. In 7 H. 4. in the Earl of Northum∣berlands Case. But there needed no Ar∣ticles 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 An∣cient 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 Commit∣tee, how could the Lord Treasurer take notice of their Impeachment? where∣fore the Lords of necessity did draw up a Charge against him out of their Ac∣cusation, 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 An∣swer, 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 for∣mer 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.
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 Informa∣tion pro Domino Rege from private per∣sons, 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, Ex∣tortion or Oppression, in Men of Autho∣rity.
Anno 43. E. 3. William Latimer exhi∣bited
his Petition in Parliament unto our Lord the King, and to his Council, shew∣ing that he had the Wardship and Mar∣riage 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 Lon∣don, and commanded him, being come, not to depart without his leave,* 2.3 upon payment of 1000 l. and afterwards would not give him leave to depart un∣til 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 rea∣son before the Lords, &c. no. 20, 21. and also the said John was put to reason be∣fore them for this; When he was Stew∣ard of the King's House, he caused di∣vers 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* 2.4 Approver, who
had appealed several men of Felonies, &c. n. 24. and also, that he being sworn by the King's Councel, did bar∣gain with Nicholas Levayn for the Man∣nor of Cainham in Kent, which the faid Nicholas claimed to hold during the Mi∣nority of John Staynton, whereas the said John at Lee knew the same was ne∣ver 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 hear∣ing; And for the Fourth and Fifth Par∣ticulars, 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 Ap∣prover, 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 prose∣cute; and the other Offence is a parti∣ticular
wrong done unto the King in his Revenues: And had any private per∣son accused him of this, their Petitions would have been recorded as well as La∣tymer'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 after∣wards John Botheil and W. Cooper exhi∣bited their Bills against him, to this ef∣fect;
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 Mer∣chandizes, &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 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 Impri∣sonment of the Petitioner by false sug∣gestion 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 on∣ly 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 Cleve∣don 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 slan∣derous 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,* 2.5 John Cavendish Fish∣monger, complained in this Parlia∣ment:
First, Before the Commons of England in that Assembly, in presence of some Prelates and Temporal Lords, and af∣terwards 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 according∣ly the Chancellor did (at the Command∣ment of the King) find Sureties, viz. Two Earls, &c. Then the Fishmonger rehearsed, how that all the last Parlia∣ment 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 ex∣cept Royal Power. The which was en∣dorsed, 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. Notwithstand∣ing all which, he found no Favour from the Chancellor in his Suit, but was de∣laied,
and still is, and cannot have Ju∣stice therefore.
That the said Otrey told him, that he could have had more Money of his Ad∣versaries 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 o∣ther Fish, and sent him his Bond can∣celled; but whether he did it out of Conscience, or to avoid Slander and Re∣proach, he knew not; Judge you, My Lords: but he was not paid for his three yards of Scarlet.
Unto this the Chancellor made his An∣swer,* 2.6 not presently, but at another time; for the Record saith, He Answered first before the Prelates and Lords, and af∣terwards before the Lords and Com∣mons; 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 & Commu∣nitat' 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 vouch∣ed 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 cancel∣led, and sent him. He denied that his Clerk moved him in that Business; all which he offered to prove in such man∣ner as the King and the Lords should or∣dain, and demanded Justice against the Fishmonger for the Slander. Unto which the Fishmonger presently answered, and said, He did not accuse the Chancellor him∣self, but his Clerk only. The Lords examined the Fishmonger and the Clerk about the Bond, and his Adversaries on their Allegiance, whether they had giv∣en any thing, or promised to give? And finding tde Chancellor free from Bribery,* 2.7 the Lords acquitted him of his Accusa∣tion 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 af∣terwards the Parliament growing to an end, the Complaint was referred whol∣ly 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.
A Commission was granted in Parli∣ament unto Tressilian, Chief Justice of the King's Bench, and Bellknap, Chief Justice of the Common Pleas, to hear and determine.
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 be∣fore them, and cause to be recited the said Accusation, and the Chancellor's An∣swer; 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 Chancel∣lor hath acquitted himself in Parliament, and is yet ready to acquit himself by any way possible?
The Fishmonger denied that he slan∣dered 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,* 2.8 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 com∣plained 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, Alder∣men and Citizens of London, concern∣ing the Fishmongers, and the said Mayor, and Aldermen, and Fishmongers were present at the reading thereof; where Nicholas Exton, who spake for the Fish∣mongers
prayed the King to receive him and his Company into his Majesties pro∣tection, 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 Mis∣demeanors in the time of E. 3. were then imprisoned by certain of the Fishmon∣gers, 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 an∣swered, The Citizens of London went to keep the Peace towards them, unless they went about to let into the said Ci∣ty 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 Com∣plaint
made by a private person in the House of Commons, and of the Com∣mons 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 Mon∣day 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 re∣sponsurum, Lunae 2. Martii. In the Par∣liament begun at Westminster, An. 16. Jac. Sir John Bowser Knight, complained
of the Bishop of Lincoln,* 2.9 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 Coun∣cellors made a good Answer (in the O∣pinion 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 re∣dress 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. After∣wards he sought all means to overthrow those Lords who procured that Com∣mission, viz. the Duke of Gloucester, the Earls of Danby, Arundel, Warwick, and Earl Marshal. And at a Consultation thereupon, he sent for the Chief Ju∣stice Tressilian, and some other Judges, and his Serjeants at Law unto Notting∣ham,
where, on August 25. Anno 11. he propounded certain Questions contain∣ing 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 to∣gether 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,* 2.10 they came Novemb. 3. Anno 11. and kneeling before the King's Ma∣jesty, he demanded why they were As∣sembled at Heringby-Park in warlike manner? They answered, for the good of the King and Kingdom, and to re∣move certain Traytors from about him, meaning the Lord of Ireland, the Arch∣bishop 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. Purifi∣cat. 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 in∣tended the Deposing of him, and Ad∣vancing 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 Parlia∣ment, 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 offer∣ing to make Proofs thereof, required
that the said Appellees might be called to Answer; and for default of their Appearance, demanded Judgment a∣gainst them. Hereupon 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 Con∣sultation, answered the Lords, That the Appeal is in no point made and decla∣red according to the Order of the Common or Civil Law.
The Lords after long Debate, decla∣red 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 Pro∣cess thereon depending, to be good, ac∣cording to the Laws and Course of Parliaments.
And the Default of Appearance was Recorded, and Judgment given, &c. a∣gainst those who made their default.
After which Sir Nicholas Brembre, a Commoner, was brought Prisoner be∣fore the King and the Lords at the re∣quest
of the said Appellants: And the said Articles being read, he pleaded Not Guilty; which he was ready to de∣fend 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 Ap∣pellees, which they would have done, and it appertained to them to have done, had not the aforesaid Appellants pursued the said Appeals. Whereupon was an∣swered 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 Judg∣ment.
Here I note,* 2.11 That the Lords cannot proceed against a Commoner, but upon a Complaint of the Commons: But here is not expressed how the Com∣mons 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 Judi∣cature 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 Com∣mons accuse Commoners, as the Lords do their own Peers. I suppse that Bram∣bre was denied the Battel, because the Commons accused him also; otherwise he ought to have it granted upon an Ap∣peal.
Afterwards the Commons themselves accused and impeached divers Common∣ers, prout 2 Mar. Sir Rob. Belknap, L. Chief Justice of the Common Pleas, Sir John Carey, late Chief Baron, and other Ju∣stices, &c. The Records were brought into the Parliament, at the Demand of the Commons, and the Commons accu∣sed the Justices for their untrue Answer made unto sundry Questions before the King at Nottingham, to the emboldning of the aforesaid Offenders in their trai∣terous Designs and Attempts, &c. Unto which they answered, &c. were adjudg∣ed, &c.
The Accusements and Impeachments made by the Commons of the Realm, against Simon de Burle, Sir John Beau∣champ, Sir John Salisbury, and Sir James
Berners, Knights, do ensue underwrit∣ten, whereof the Commons pray Judg∣ment in this present Parliament.
Thus much touching the Appeal of 11 R. 2. But this begot another Ap∣peal 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 Ca∣stle 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 pen∣ned by the Advice of some Civil Law∣yer. It seems also they were very care∣ful herein to avoid all Errors of the for∣mer 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 cal∣led to the King upon some other occa∣sion, 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 Parlia∣ment) 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 care∣ful 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 with∣out 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 Sagit∣tariis & 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 quan∣dam domum amplissimam in Palatio West∣monaster' 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 Communita∣tem. Et Forale nuncupatur Parliamentum. Thus much of Accusation by Appeal, (which when any of the Lords accused others out of Parliament) was summon∣ed;* 2.12 but God be thanked, they are abo∣lished, 1 H. 4. c. 14.
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 Appel∣lants, 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 Ire∣land, commanding him upon his Allegi∣ance to come before the King in all haste, to answer, &c. And that the said Mortymer having notice thereof, withdrew himself among the wild Irish, where the same Serjeant, nor any other Officer of the King's durst come, for fear of Death: Wherefore, and for that his Offences are notoriously known both to the Lords and them, they pray∣ed Judgment, &c.
The King, the Lords, and the Procu∣rators of the Clergy considered of the Request of the Commons with good deliberation; and then the Lords, with the said Procurators, by the assent of the King and Commons, did award that Proclamation should be made through England and Ireland, commanding the said Tho. Mortymer to render himself in proper Person to the King in what place soever it shall be in England, within three Months after the 23th. Day of December next coming, to be at his Answer; and they farther awarded, That if he came not, &c. that then he shall be judged Traytor, and Convict of of all Trea∣sons whereof he is accused, and shall forfeit, &c.
Then the King adjourned the Parlia∣ment, and the Appellants to the 15th. of Hilary next at Shrewsbury; on which Day the said Appellants declared to the King, That it was awarded that Procla∣mation should be made, &c. ut supra, The Commons did the like. And for that the said Tho. Mortymer came not, they had judgment.
In 7 H. 4. The Lords agreed this Judg∣ment against the E. of North. and the Lord Bardolph, who were fled to the
Rebels in Wales, and Proclamation ut supra, throughout England. At the day prefixed they examined the Returns of the Proclamations in the presence of the Commons, and so the Judgment was a∣greed on in their presence also; and so it ought to be in all Cases of Life and Death. And finding a small Error, they awarded new Proclamations in London only; and the Return thereof was again viewed and considered in the presence of the Commons, and then on the next day Judgment was given.
Eodem Anno 21 R. 2.* 2.13 The Lords Ap∣pellants accused also the Duke of Glou∣cester of Treason; and although they knew he was dead, they prayed the King that he might be brought to his Answer. Whereupon the King sent his Writ to the Council of Calice (unto whose Cu∣stody he committed the said Duke) to bring him into the Parliament to his An∣swer. The Captain returned his Writ, That the Duke is dead; the which Writ and Return being read, the said Appel∣lants prayed Judgment; and the Com∣mons shewed, That the Dukes Levying War against the King's Person, is no∣toriously known to all the States of Par∣liament,
and therefore they desired Judgment also, and had it.
And what may not the whole Parlia∣ment do when they joyn in one? Yet notwithstanding the King fearing some Error (as it seems) the Lords Appellants besought the King, that if there were any thing on Record, be it by Confessi∣on or otherwise which concerned their Appeal, that it might be openly known, and shewn in full Parliament. Where∣upon, by the King's Commandment, was read a Commission granted unto William Richal Justice of the Common-Pleas, and a Confession of the Duke of Gloucester, made before him, by vertue of the said Commission; yea and Ri∣chal himself, being commanded, did ju∣stifie that the Duke did write the Con∣fession with his own hand, in his absence, and afterwards read it unto him: so care∣ful they were to have something to sup∣ply an Answer, I marvel that Richal was acquitted of his Proceedings herein at the next Parliament of 1 H. 4. where he affirmed that much of this Dukes Confession was altered after he had re∣turned his Commission. He well deserv∣ed to die, in that he spake not of it.
Yet there is one Precedent directly contrary to all this, viz. 11 R. 2. in that Appeal which happened on this occa∣sion.
The aforenamed Duke of Gloucester, and four other Lords went to the King, and accused the Duke of Ireland, the Archbishop of York, Michael de la Poole, and others of Treason; the King adjourn∣ed them to the next Parliament, promi∣sing them Justice there, and in the mean time conveyed away the Parties accused, and then by Proclamation, Part 8. fol. 603. in the next Parliament, 11 R. 2. the Articles of the Appeal being read, the Duke and other Appellants offered to make proof thereof, and required that the Parties appealed might be brought to their Answers; and for default of Ap∣pearance, demanded Judgment. Where∣upon the King did deliberate with the Lords, and commanded the Justices, and other Sages of the Law to give their best Counsel to the Lords how to pro∣ceed rightly in this Matter of Appeal; who after Consultation therein had, an∣swered the Lords, That they had seen and considered the Tenor of this Appeal, which they said was in no point made and declared according to the Order of
the Common or Civil Law. But they gave no Answer touching the Demand of Judgment for default of Appearance; whereupon the Lords deliberated, and after by the Lords assent declared that this Cause committed by the Peers a∣gainst the Person of the King and State of the Realm, shall be determined in the Parliament only, and by no other Law than by the Law and Course of the Parliament: And that it belongs to the Lords only to judge in such Cases. And with the assent of the King they did judge the same Appeal, and the Process thereupon depending, to be good, ac∣cording to the Law and Course of Par∣liament.
Then the Lords Appellants proceeded, and desired to have the fault of Appear∣ance recorded, and Judgment given, and so it was. So likewise 21 R. 2. Af∣ter the King had given the full power of Parliament to determine all Matters be∣gun into the Hands of twelve Lords or six, and six Commoners, or any three. He adjourned the Parliament from West∣minster to Shrewsbury in 15 Hil. and there on March 22. It was shewed to the King how that Robert Possington was impeach∣ed at the Parliament at Westminster, for
being with the Duke of Gloucester in levy at Herring, An. 11 R. 2. For which the said Duke was adjudged as Traytor, and therefore they brought the King to or∣dain the like Judgment against Robert Possington, though he was dead: Where∣upon our Lord the King,* 2.14 by the assent of the Lords and Knights of Counties, having power, &c. awarded the said Robert guilty, &c. And that he shall for∣feit, &c.
But these extraordinary Precedents cannot lead us into the ordinary course of Proceedings; and I alledge them on∣ly so, as their Errors may be avoided.
§. To conclude,* 2.15 it is the just and constant Course of Parliament, to bring the Party accused to his Answer; yea, though he fly Justice, yet to send out Proclamations into the Countries, that he appear at a Day, or else such and such Judgments shall be given against him. I confess this Course was omitted in the Judgment a∣gainst Mompesson, 18 Jac. and haply it was not then thought upon; the Judicature of Parliament being so long out of use; and therefore that cannot be alledged as a leading Precedent.
And in 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 Mor∣tymer's Answer is not recorded; yet it is said he was brought before the Lords, and the said Indictment read in his pre∣sence, that he made an Answer unto it, though not mentioned. And this proves that the Party is to be brought to his An∣swer; 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 o∣thers, 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 West∣minster-Hall, That upon the Sheriffs Re∣turn, 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.
First, In what Causes the Party is to answer as a Prisoner; and in what as a Freeman.
Secondly, When Councel shall be al∣lowed him, and when not.
The Parliament hath guided their Proccedings therein secundum Legem ter∣rae, & Judicium Parium. According to the 2th. Chapter of Magna Charta, Nul∣lus liber homo capietur vel imprisonetur, &c. nisi per legale judicium Parium suorum, vel per legem Terrae. And therefore in Causes Capital, whether the Party ac∣cused be a Lord of the Parliament, or a Commoner, he is brought a Prisoner to his Answer secundum legem terrae, pro∣ut, 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 surren∣dring Forts beyond the Seas, An. 4. R. 2.
Sir Ra. Ferrers Knight, was apprehend∣ed for suspition of Treason.
Anno 28 H. 6. Although the Lords re∣fused to commit the Duke of Suffolk up∣on the Commons complaint of him of a common Fame of Treason; yet when they accused him of particular Treason, he was Committed, and brought Priso∣ner to his Answer. But in Cases of Mis∣demeanors it is otherwise; then the Party accused, whether Lord or Com∣moner, answers as a Freeman.
The Lord within his Place, the Com∣moner at the Bar; and they are not com∣mitted till Judgment, unless upon the Answer of a Commoner, the Lords find cause to commit him, till he find Sure∣ties to attend, &c. lest he should fly; prout Jo. Cavendish upon the Lord Chan∣cellor's Demand of Justice against him for his false Accusation, was Commit∣ted after his Answer, until he put in Bail, Anno 7 R. 2. And before Judg∣ment.
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. an∣swered 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 answer∣ed as Freemen in their Places, their Of∣fences 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 Free∣men, being impeached by the Com∣mons. 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 Authori∣ty, and came not. Then the Lords, as it seemeth by the Record, sent to appre∣hend 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: Where∣fore it was awarded, &c. Which is suffi∣cient 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 May∣or and Bayliffs that did the Outrage; and they appeared in person, and the Com∣monalty by their Attorney.
Yet even in these Days, viz. 15 R. 2. the Peer of Holland complained of a great Riot committed by Henry Tibb, and di∣vers 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 Examina∣tion, confessed nhe whole Matter, and were committed. But I suppose the Ser∣geant at Arms was sent, for haply they would have obeyed no Writ: and yet he was sent for two of the principal Offend∣ers
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 Ben∣net were both committed by the Com∣mons before their complaint to the Lords, and so they answered as Prison∣ers: But that in a sort may be called Ju∣dicium Parium suorum.
18 Jac. The Earl of Middlesex being then Lord Treasurer, and accused of Mis∣demeanors 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.
In all Causes of Felony,* 2.16 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 Mar∣shal 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 said unto the said Sir Ralph, That forasmuch as the Matter stands so much upon Trea∣son, 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 de∣liberation. 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 ac∣cused of Treason, by the Commons, de∣sired Copies of the Articles, but no Councel, and he answered without Councel.
Primo Car. 1. In the Parliament be∣gun Febr. 6. The King's Attorney exhi∣bited Articles of Treason and misde∣meanor 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 touch∣ing 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 ex∣pect 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 read∣ing the Articles of Treason and Misde∣meanors 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 Fe∣lony: It is an ancient fundamental Law of this Kingdom, and desired the Lords to proceed with that Caution, that anci∣ent fundamental Laws may receive no blemish nor prejudice.
On the 15th. of May, the Lords an∣swered this Message, That by an Order Dated May 24. 21 Jac. Anno 1624. Coun∣sel was then present, and they had allow∣ed 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 Cri∣minal, which never till now extended to Cases Capital.
And that the Judges were neither ad∣vised with therein, nor the King's Coun∣cel heard for his Majesty; and there∣fore his Majesty is not satisfied about the general Order, but will advise, &c. The Lords thereupon allowed him Coun∣cel 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 ve∣ry same Matter contained in the Arti∣cles against him in Parliament: All which were but Misdemeanors. And if it be lawful for me to speak freely, I be∣lieve 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.* 2.17 The Commons accused Michael de la Poole of many Misdemea∣nors 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.
Secondly, He said, That he had ap∣pointed by the Advice of his Councel Monsieur Richard le Scroope, his Brother-in-Law should have the words of his An∣swer to the first Impeachment. Where∣unto 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 de∣clared as well by himself, as by the mouth of the said L. Scroop, That &c.
I note here that Councel was not de∣nied 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 Chan∣cellor, 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 Misde∣meanors, and Copies of the Impeach∣ments, 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 Co∣pies of the Articles, and Councel, and Time to answer, the Parliament hath compelled them to make a present An∣swer without Councel; but this is rare, and I have seen but one Precedent of it.
Anno 5. R. 2.* 2.18 Die Animarum, Numb. 45. The Mayor, Bayliffs and Commo∣nalty 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 Univer∣sity, and compelled the Chancellor and Schollars to release to the Mayor all their Liberties,* 2.19 and all Actions, &c. In Num. 46 & 47. Several Writs were sent to command them to appear. They appear¦ing at the Day, and answering to such Articles as were objected by the King's Councel, and delivering in the two Re∣leases
which were cancell'd Numb. 48. Then the Chancellor and Scholars exhi∣bited 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 Arti∣cles, and Councel, and Respite to an∣swer, Numb. 54, 55.
To the Copy of the Articles, it was an∣swered, 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 their Answers to all other matters, Numb. 57.
And the King by assent of the whole Parliament, granted the assize of Bread, and all weights, Measures, &c. to the Scholars, and to the rest of the Burgesses,
yielding and increase of Rent, 59. 6. And there is no farther proceeding against them for other Crimes; yet this also proves Counsel ought to be allowed in Cases of Misdemeanor.
Anno 50 E. 3. They impeached Rich. Lyons for procuring Patents and Licenses, &c. to carry, &c. to other places than to
Calice. For divers other new Impositions upon Wools, &c. For levying the same to his own use, without view of a Comp∣troller, for 20000 Marks in London, for the King, and causing the King to repay 30000 Marks: For buying of Debts of the King at the 20th. penny and less, and causing the King to pay the whole Debt. In general words, For many Extortions, &c.
First, to the third part, and pleads Not Guilty; which he is ready to prove: To which nothing is replied.
To the several Impositions, He con∣fessed he levied 12 d. on every Sack of Wool licensed, to his own use, but by express Commandment of the King, and Assent of the Merchants. And for other several Impositions, That he had paid them wholly to the King's Chamber, and fully accompted for the whole year.
Unto this part of his Answer also there is no Replication recorded, it is drawn up so briefly; yet these which follow shew somewhat of what was re∣plied, viz. And it was said unto the said Richard, that he should bring forth his Warrant by what Authority he did these
things. But he shewed no Warrant in Parliament under the King's Seal, nor otherwise; but only he said he had Com∣mand from the King himself and his Councel to do it. Now whether the Lords willed Lyons to shew forth his Warrant upon the Reply of the Com∣mons, or otherwise, it appears not by conjecture out of other Precedents.
Eodem Anno,* 2.21 The Commons impeach the Lord Latymer, That contrary to the Proclamation upon the last Truce with the French, he and his Lieutenants and Officers have taken divers Victuals by force, without paying for the same, and that he extorted great Fines and Ran∣soms of divers Persons and Parishes of Betherel in Brittayn, whilst he was Cap∣tain there, for which he hath answered nothing to the King. And for the Loan of 20000 Marks made to the King by him, and Richard Lyons, to transport Wool, &c. And also through his ill Govern∣ment, the Fort of St. Saviours in Nor∣mandy, and the said Fort in Normandy, called Betherel, and many more are lost. And also that he, of his own Authority, discharged Spies and Fellows imprisoned by the King, wherein he encroached to himself Power Royal.
First, He said, That saving to himself so much as ought to be saved unto him, as one of the Peers of the Realm, as well in giving Judgment, as otherwise in time to come. And if it please the King and Lords here Assembled, he will willingly give his Answer unto him who will in special object any other thing against him.
It should seem that the Commons ad∣vised hereon; for it followeth, Et puis presentes. Forasmuch as no person would in special openly accuse the said Lord, vouching the said things in Parliament, but that the Commons would maintain the said Judgment in common, he an∣swered to each Particular.
1.* 2.23 Touching the Ransoms that he hath been before impeached for, and the Sums of Money he received, it appeareth that he owed the King 2000 l. which he con∣fessed, and submitted himself to the King's Grace for the same. And soon after this, the Commons having heard this Answer of Submission, prayed the Lords
that Execution might be had of the said 2000 l. presently against the said L. La∣tymer, as a thing past by the said Submis∣sion being made by him as aforesaid; for it shews not any agreement made with the King, nor any Pardon, or other Discharge.
And the Lords answered, That his An∣swer should be reported to the King, and thereupon Right shall be done for the King.
2. Touching the Acts done by his Lieutenants, he said, That he is altoge∣ther innocent, &c. For he was then in England, by the King's Command, and he had no part thereof, &c. And the Commons thereunto replying, said, That although he be innocent, yet his Lieute∣nants receiv'd it in his Name; and therefore prayed he might answer to the King for his Lieutenants, if they be not able, &c.
3. Touching the Loans of 20000 Marks, he absolutely denied he had any share or advice therein, he made in a manner a Negative Answer to all the rest; offering Proofs: whereupon wit∣nesses were examined, but no other
Replications of the Commons menti∣oned.
Eodem Anno 50 E. 3. W. Ellis was im∣peached by the Commons,* 2.24 for that he being Farmer to the King of the Petty Customs in Yarmouth, and Deputy-Far∣mer to Rich. Lyons, of Tonnage and Poundage, &c. he extorted several Sums of Money from the Merchants, and par∣ticularly 33 l. from a Scotish Merchant at Kirkbread, who was driven in thither by a Tempest, but unladed no Merchandize there.
The said Ellis answered in general,* 2.25 He had never taken any thing of the said Merchants by way of extortion; which he was ready to prove.
The Commons brought in four Wit∣nesses,* 2.26 who justified the Extortion upon Oath, and then demanded Judgment. And W. Ellis rejoyn'd to this Replication, confessed the Receipt of the 33 l. and a∣voided the Extortion.
Eodem Anno,* 2.27 John Nevile was im∣peached by the Commons, for that he, as Officer to the King, and one of his Privy Councel, had brought divers Tal∣lies of Assignments made by our Lord
the King, unto divers persons unto whom he was Debtor, and had thereof due allowances in the Exchequer; but the Parties had of him little or nothing; and especially of the Lady Rovensholme, who is deceased, and of Reignald Love.
And after he was impeached, for that in this late Voyage into Britayn, in the King's Wages in great number of Men at Arms and Archers, for which he ac∣corded with the King, and those he car∣ried with him were not sufficient, come Garcone & autres lieux: And yet he re∣ceived full payment in deceit of the King, and that by his default many Forts were lost in Britayn.
And also at his passing at Southampton, his Men did much Mischief to the Coun∣try, as if they had been Enemies.
To the First, Touching the Buying of a Debt due by the King to the Lady Ra∣vensholme, he made a very good Answer, and denied that he bought any Debt of Reignald Love for gain. And the Com∣mons being present, desired that Love might be examined therein: and he was examined, and cleared the Lord Nevil thereof. And thereupon Michael de la Poole, and W. de Winged being present,
did expresly affirm, That the said Love had acknowledged before him and many others, the Day before, That the said Lord Nevile had bought the said Debt for gain, &c.
And the said Reignald Love replying to their Affirmation, said, That he ne∣ver spake any such Words to them or a∣ny other. Et tant est autres apres, &c. And soon after the said Knights and Com∣mons affirming that the said Reignald did not only speak those Words, but also prayed that it might be shewed in open Parliament, the said Reignald confessed, That, &c. and was therefore Commit∣ted, &c.
Touching the Second Point; The L. Nevile shewed, That he made full Mu∣ster of his Men, &c.
Touching the Third, The Pillaging of Souldiers, he said, That he did none; and if any were done, let the Malefa∣ctors answer. And unto this it was said by the said Lords of the Parliament, That it was reason, sith the King paid the Sol∣diers their Wages, that the Souldiers should answer for their ill Deeds, and the Captains should answer for them∣selves.
And thereupon the Commons prayed Judgment against the Lord Nevile, and that he might be put out of his Office a∣bout the King.
Touching the Articles of the Lady Ravesholm, It was awarded in Parlia∣ment, That the Lord Nevile should make Restitution unto her Executors. Quaere hoc.
That he be banished according to the quality of his Offence, as others have been, &c.
I have translated this of the Lord Ne∣vil almost ad verbum; it needs no Expo∣sition.
The Commons were present at the L. Nevil's Answer, and desired that one Witness whom he had brought with him, and who gave them Information of the Complaint touching the buying of the King's Debts, might be examined. And examined he was in the presence of two Knights of the Parliament, and they did contrary his false Answer; and af∣terwards all the Commons came and te∣stified against the Witness.
This is sufficient to prove, That the Commons may Reply, and are to be pre∣sent at the Answer, or have a Copy there∣of
sent them: But the Commons did not Reply unto the Lord Nevil's An∣swer.
Touching the Pillaging of his Souldi∣ers, for ought appears, the Lords Repli∣ed to that part.
Primo Car. 1. 6 Febr. The Commons impeached the Duke of Bucks, and De∣clared against him in writing. The Com∣mons demanded a Copy of his Answer, that they might Reply unto it, and it was debated at a Committe, whether the Commons might Reply or no? which was resolved in the Affirmative, upon view of Precedents, and reported to the House; and then a Copy was sent to the Commons.
Where the Articles against the De∣linquents are ex parte Dom. Regis, there the Commons cannot Reply, nor De∣mand Judgment; for the Suit is the King's, and not theirs.
Anno 10. R. 2. Upon Complaint of the Commons, Jo. Lord Comeniz and W. Weston were put to their Answers; but the Articles were exhibited de part le Roy. The Complaint of the Commons was general; and though the Commons be there present at their Answer and Judgment, yet they did neither Reply nor Demand Judgment.
The King's Steward before whom they were Arraigned, Replied, as shall ap∣pear by the Precedent at large.
In like manner the Commons demand∣ed that the Bishop of Norwich and others might be put to their Answer, and the Articles were drawn de part le Roy. And the Chancellor replied to their Answer, the Commons not once interposing there∣in.
5 R. 2. The Chancellor and Scholars of Cambridge accuse the Mayor, Bayliffs, and Commonalty of Cambridge, of many Outrages and Misdemeanors. They ap∣peared and answered. The King's Coun∣cel replied, Numb. 49.
THe Practice at this Day is to swear the Witnesses in open House,* 2.28 and then to examine them there, or at a Com∣mittee, either upon Interrogatories a∣greed upon in the House, or such as the Committee in their discretion shall de∣mand.
Thus it was in Ancient Times, as shall appear by the Precedents, so many as they are; They being very sparing to Record those Ceremonies, which I shall briefly recite, and then add those of la∣ter times.
Anno 15 R. 2. The Lord Latymer ha∣ving answered to one of the Commons Complaints touching a Loan of 20000 Marks for 30000 Marks to be repaid,
whereof he said he was innocent. It followeth thus immediately, &c. And thereupon it was certified in Parliament by Monsieur Rich. le Scroop, the late Lord Treasurer to our Lord the King, and by W. Wallworth of London, That when the said Loan was made, the said Walworth offered in the Name of the Staplers, to lend the same, and be repaid without U∣sury, out of the Customs of Wool to Calice. Whereto the Lord Latymer an∣swered, He never heard of that Proffer; and others swore the said William Wal∣worth did make the said Proffer to them.
Anno 15 R. 2. The Commons produ∣ced four Witnesses to prove their Com∣plaints against Ellis, Les queux Exami∣nees in Parlement, said, &c. And there I observe that two of those Witnesses had exhibited a particular Complaint against Ellis, concerning a particular wrong done unto Merchants, whereof the Com∣mons complained, and Ellis took no ex∣ception against them.
And afterwards being put to his An∣swer upon their particular Complaints for wrong Imprisonment, &c. Ellis said, That they betrayed him as he was com∣ing to London, and so he caused them to
be committed, and the said Complain∣ants affirmed the contrary upon Oath, and it was testified expresly by divers sufficient men, That, &c. agreeing with their Oath.
Eodem Anno John Peecher being accu∣sed for Extortion, affirmed, he retained it by the assent of the Mayor, Recorder, and of the greater part of the Aldermen, and being examined in Parliament, af∣firmed there, That, &c. to the contrary, and then Judgment was given.
Eodem Anno, The Commons accuse Jo. Lord Nevil for buying the King's Debts of Reignald Love; which the said Lord denied: and the Commons desi∣red that the said Reignald might be ex∣amined. And the said Reignald being charged upon his Allegiance to tell o∣penly before them the full Truth, saith, clearing the Lord Nevil; but afterwards he confessed against him. He was ex∣amined 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 na∣med. 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 exa∣mine Witnesses.
The Committee were the Duke of Lancaster,* 2.30 Earls of Arundel, Cambridge, Northampton and of March. And divers Witnesses who are named, were sworn upon the Holy Evangelists, and diligent∣ly 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 dili∣gently examined before the rest of the said Committee, but not sworn ad testi∣ficandum. Earls and Dukes are not sworn.
A Jury of the Houshold was impan∣nelled for her Trial before the said Com∣mittee.
The Order made by the Lords for the Examination and Trial. Per l'assent Pre∣lat & des Seigneurs du dit Parlement or∣deint 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 Com∣mittee 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 a∣dire le verite si le dit Alice fuit culpable de les Articles avant dits, ou nemy.
Note, This is the only Jury I find Re∣corded 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 im∣pannelled 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 Com∣mons demand it.
For Proof that the Witnesses ought to be examined in their Presence, vide 50 E. 3. The Impeachment of the Lord Ne∣vile, where Richard Love was examin'd
in presence of two Knights of the House of Commons, who contraried his Te∣stimony, Numb. 44.
The Proof that a Delinquent may put himself super Patriam, vide 4 E. 3. Where the Lord Berkley, who waved his Peer∣age, was tried by a Jury of Gloucester∣shire 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 Infor∣mation ex parte Dom. Regis, and not up∣on the Impeachment of the Commons; for then they had been Patria sua. And as the Party may put himself super Pa∣triam, 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 resur∣geram.
Note, That the Commons had accu∣sed them—also. Vide a Herald Parl.
lib. Mayleress. And thereupon it was te∣stified openly in Parliament, That our Lord the King had expresly said that day, before the same Lord then present in Par∣liament, 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 Com∣mission.
He denied the procuring thereof, and that he would not have used the said Commission without the King's Com∣mandment, and that he told the King so much, and that the King commanded him not to intermeddle therein. Where∣unto 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 a∣bout 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 Cla∣rence was Arraigned in Full Parliament.* 2.31 There is no mention thereof in the Roll, but in a Manuscript of that time, writ∣ten by a Frier of Croyland. Tam testis est vera, & disceptatio ea habita inter duos tantae humanitatis Germanos.* 2.32 Nam nemo arguit contra Ducem nisi Rex; nemo re∣spondet Regi nisi Dux. Introducti autem erant nonnulli de quibus à multis valde dubi∣tatur, an Accusatorum an Testium officiis sunt functi utraque enim officia in eadem causa eisdem personis non congruunt. De∣levit enim object a Dux ille per Justificatio∣nem, asseruit, si exaudiri possit, manuali defen∣sione teneri causam suam. Quid multis nu∣meror Parliament les reputantes audit as In∣formationes sufficere formarunt in eam sen∣tentiam damnationis quae ab Henrico Duce Buck. pro tempore noviter creato Anglo∣rum Seneschallo prolata est, postea dilata est executio, quo ad usque Prolocutor Communi∣tatis in superiorem Cameram cum sociis suis adveniens, novam ejus conficiendae rei re∣quisitionem fecerat, & consequenter infra paucos dies factum est id qualecunque genus Supplicii secreti infra Turrim London.
utinam sine malo, Anno Dom. 1418. Reg∣ni vero Regis E. 4. 18. per Anonimum li∣bris Cotton.
Here let us examine for what illegal proceedings the Commons desired to have the Cause tried again. The Au∣thor saith, Nemo arguit contra Ducem nisi Rex.* 2.33 This the Commons held to be against Law, That the King himself should enforce either Article or Testimo∣ny 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 return∣ed, 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 be∣yond the Seas, 8 May 1626. The said Earl petitioned the Lords, That seeing several points of that Charge are ground∣ed upon private 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 Lord∣ships
to put his Majesty in mind thereof, for the declining his Accusation and Te∣stimony▪
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 there∣of; and Mr. Attorney desired to know the time of their Meeting; and before that time he brought them a Message from the King,* 2.34 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 dampni∣fied in his time. That they might deli∣ver their opinion in any particular Que∣stions
concerning the Earl of Bristol, but not in the general Questions whereof his Majesty could not discern the conse∣quence which might happen to rhe pre∣judice of the Crown. Every particular Case varying according to the circum∣stances.
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 believ∣eth. And for that the said things are no∣torious and known to be true unto you, and to all the People of the Realm.
This was all the Proof produced a∣gainst Roger Mortimer. The Lords here∣upon 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 Ro∣ger Mortimer, yet it was afterwards ad∣judged
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 Commit∣tee. 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, Whe∣ther Sir Ralph Horsey should be examin∣ed what Bribe he gave to the Lord Chan∣cellor; 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 there∣fore sent a Message to this effect.
The House of Commons, before their Complaint exhibited against the Lord Cobham and Doctor Feild, for a Bribe con∣cerning Egerton's Case, 18 Jac. examined one Davenport, but not upon Oath. The Lords, when they had examined Daven∣port,
found that the Case was not so foul as he related it unto the Commons, and therefore sent his Examination again un∣to them, and then punished him for his false Relation.
FIrst, Unto whom the Judgment be∣longeth, 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,* 2.35 the Commons might accu∣sare & petere Judicium, the King assentire, and the Lords only did judicare.
7 H. 4. In the Case of the Earl of Northumberland, Protestation was made by the Lords, That the Judgment be∣longed unto them only.
For the clearing of this Point, That the Judgment belongeth to the Lords only, vide the Protestation of the Com∣mons 1 H. 7. which excludes the Com∣mons from any Right thereunto, viz.
On Monday, Novemb. 3. The Com∣mons made their Protestation in manner as they did in the beginning of this Par∣liament 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 Par∣liament. Unto which it was then an∣swered by the Archbishop of Canterbury, by Command of the King, That the Commons are Petitioners, and not De∣manders; 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 com∣mon 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 be∣long only to the King and Lords, That is to be understood touching the King's As∣sent only, as apppeareth by the Replica∣tion 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 Petiti∣oneth to reverse a Judgment in Parlia∣ment against John Earl of Salisbury, his Father, in 2 H. 4. and one of the Errors as∣signed 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 Command∣ment, 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 & Tempo∣ralibus praedictis hoc in Parliamento petie∣runt scrutinium pro Domino Rege in hac parte. Quibus dictum erat ex parte Domini Regis, Quod ipsi procederent ulterius absque aliquo scrutinio habendo quoad declaratio∣nem & judicium super supradicta, &c. And afterwards Day was given at the next Parliament which was held at West∣minster, eodem Anno 2 H. 5. In which Parliament the said Judgment of 2 H. 4. being examined and discussed at full, vi∣debatur tam dicto Domino nostro Regi, quam etiam Dominis suis antedictis, &c. quod idem Judicium & Declaratio praedicta versus eun∣dem Johannem, &c. sunt & fuerunt bona & legalia. Declaratio & Judicium. Per quod cousider atum fuit in praesenti Parlia∣mento per praedictos Dominos tunc ibidem ex∣istentes, de assensu dicti Domini Regis, quod praefatus nunc Comes nihil capiat per Petitio∣nem aut Prosecutionem suam praedictam; Et ulterius tam Domini Spirituales, quam Temporales praedicti, Judicium & Declara∣tionem 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 Tem∣poral 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 here∣in explained.
The King's Assent ought to be to Capital Judgments,* 2.36 and the Lords Temporal to be only Judges therein, and not the Lords Spiritual: But in Misdemeanors, the Lords Spiritual and Temporal are e∣qual Judges, and the King's Assent is not necessary, as shall appear.
Touching the King's Assent, it is ex∣pressed in divers Judgments on Capital Offences,* 2.37 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;* 2.38 but a∣gainst John Matrevers Les Judices Peeres
de la terre, & Judges de Parlement adjudg∣ent & agardant que le dit John be drawn, hanged, &c. not mentioning the King's Assent. And there are two other Prece∣dents of the same Nature briefly Record∣ed; Estre ou tiel Judgment est accorde que soit sait de Burges de Bayons & John De∣ver. 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. up∣on 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 re∣cite.
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 La∣dy, in the 11th. year of your Reign, and there were surmised against him divers points of Crime and Treason, and there∣upon 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 not∣withstanding 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 Ab∣sence, 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 behead∣ed, 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 Parlia∣ment there shewed unto the King how that they in the said Parliament at West∣minster 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 Roy∣al 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 Cob∣ham as the Cause demands. The said Jo. de Cobham was brought, &c. And touching the said Judgment awarded a∣gainst 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; Where∣upon, &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 a∣gainst 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 man∣ner 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 lei∣sure to inform his Majesty thereof, let the Reader judge: yet it seemeth to me that the King's Assent is necessarily requi∣red in Capital Causes and Judgments, for these two Reasons:
First, For that all Precedents mention the King's Assent in Capital Judgments, except that one against Matrevers, 4 E. 3. which might be the omission of the Clerks, who drew up the Roll; for it is said directly afterwards in the said Bill,
Numb. 6. That the Peers gave those Judg∣ments in the presence of our Lord the K. and by his Assent: And except that of 1 R. 2. against Weston, in the last Day of the Parliament, and it was 3. in the Afternoon that Day before the Lords had determined what to do in that Business; so that it may be the Lords were prevent∣ed of time herein, to have which, they respited Execution, for that the King was not informed of the manner thereof.
Secondly, For that the Lords Appel∣lants 11 R. 2. who had then great Forces about them, were so earnest with the King for his Assent to the Judgment a∣gainst Burley, That the Duke of Gloucest. told him,* 2.39 as appeareth by his own Con∣fession, 21 R. 2. That if he would be King, he should not intreat for Simon de Burley, to save him from Death. And in the end, when his Majesty would not assent to their Judgment, yet they wrought so, that Messengers were sent unto him, and brought word (not before they gave Judgment against Simon) and the King's Assent is mentioned in the said Judg∣ment. All which the said Lords would not have done, had not the King's Assent been necessary.
And afterwards in the Parliament of 21 R. 2, The Lord Cobham being accused for giving Judgment without the King's As∣sent, answered, That the Messenger brought word, That his Majesty had as∣sented: And yet because he did not gain∣say that the King did deny his Assent, the Commons immediately demanded Judg∣ment. All which seem to imply, That the King's Assent is necessary in Judg∣ments upon Capital Offences.
It is all one with Judgment without the King's Assent.
The Judgments of this kind are good notwithstanding, so as the King doth as∣sent; as that of Simon de Burley, 11 R. 2.
That is to say, of many of them, and against their will; This cannot invalid
their Judgment, so as the greater num∣ber of the Lords be then present (ac∣compting the Proxies of the absent Lords) for it is not material whether some Lords do absent themselves, or dis∣assent. The chiefest Matter is the Assent of the Lords who are present either in Person or by Proxy. The others are to Answer for their Absence without a just Cause shewn, or a proper Assent.
50 E. 3. The Lords judged divers Com∣moners for Misdemeanors, and the King's Assent not mentioned; as Richard Lyons, William Lord Latymer, a Privy Councel∣lor, John Lord Nevil, a Privy Councel∣lor, Jo. Peecher, and others. The King was then sick at his Mannor of Eltham, and on the last day of the Parliament, the Lords, Prelates and Commons came before him there, and he heard the Peti∣tioners, and their Answers for most part read, and also Judgment given on the Privy Councellors and others, dont ils se leyron franchement le respons de mesme nostre Seignior le Roy, Numb. 15. Which shews that the King had not assented to them.
7 R. 2. The Bishop of Norwich was accused of Misdemeanors, and judged in 10 R. 2.
The Lord Chancellor Mich. de la Poole was judged by the Lords for Misdemea∣nors, and Speed fol. saith, That the King was much displeased thereat; for it appeareth he gave not his consent. And it was one of the Questions demanded of Tresilian and others, 11 R. 2. Whether the Judgment were erroneous, or not? and resolved to be erroneous; yet it was not objected against any the Lords Ap∣pellors that the Judges proceeded with∣out the King's Assent.
In 4 E. 3. The King commanded the Lords to do right and lawful Judgment on Mortimer. The which Earls, Barons and Peers having examined the Articles, came again before the King, and said, &c. Ibidem. The King commanded them to give Judgment on Simon de Bereford. The which Earls, Barons and Peers came again before the King, and said, &c. And so the King was present at their Judg∣ment, but not at their Consultations.
10 R. 2. The King was present when the Commons accused the Lord Chan∣eellor William de la Poole of Misdemea∣nors, but he was not present at his Trial; for he demanded if he ought to answer sans presence de dit Roy, being Chancel∣lor? and in the end he answered not∣withstanding.
21 R. 2. In the cruel Parliament of the Lords Appellants, the King was pre∣sent at the Parlies: Non constat whether he was present at the Consultation of the Lords.
5 H. 4. The King was present when the Earl of Northumberland was to be tried upon his own Petition, and so were the Commons. And the King delivered the Petition to the Judges for their Opi∣nion; but the Lords claimed their Right: But this was on the Wednesday, and the Friday following the King and Com∣mons met there again, and the Chancel∣lor rehearseth, First, What was done the first Day, and the Lords having had com∣petent deliberation on the said Petition, and having heard and considered the Statute, They adjudged, &c.
It is plain the King was not present at this Consultation of the Lords, though at their Judgment.
7 H. 4. He commanded the Lords to advise what manner of Process shall be made, and what Judgment shall be rendred against Henry de Peircy Earl of Northumberland; and a Week after the Lords declared their Opinion to the King. And it appeareth in that Roll ve∣ry clearly, that all Evidences and Exa∣minations were shewn and taken by the Lords in the absence of the King, and their Advice also agreed on in his Ab∣sence, but the Judgment reversed in his Presence.
To conclude, The King may be pre∣sent if he please, at the Parties Answer, in Capital Causes, and at the Judgments given, prout, &c. But he was never pre∣sent at other times of Proceeding against the Delinquent, nor at any Answer for Misdemeanors, for ought I have yet seen.
be, out of one or other of them some∣what may occur worthy the Observa∣tion.
In 1 R. 2. Alice Peirce was brought before the Prelates and Lords in Parlia∣ment, to Answer, and the Prelates and Lords did ordain.
42 E. 3. Numb. 20, &c. John at Lee was put to Reason before the Pre∣lates, Lords, Dukes, Earls, Barons, and some of the Commons.
7 R. 2. Jo. Cavendish accused the Lord Chancellor of Bribery, before the Pre∣lates and Lords in Parliament. The Chancellor Answered before the Pre∣lates and Lords.
In 4 E. 3. The Earl of Kent was brought before the Counts, Barons & autres Grandees and Nobles en mesme Parlement, &c. for Treason dors. Numb. 38.
Eodem Anno, The Articles of Treason being read against Mortimer, the King charged les Counts & Barons, les Peeres de son Realme, to give Judgment. And Judgment was given per les dits Counts,
Barons & Peeres come Judges del Parle∣ment.
Item, The King commanded les dits Counts & Barons Assembled in Parlia∣ment, to give Judgment on, &c. and so were four others tried in the same Par∣liament, all for Treason, and not one word of the Prelates, either when the Articles were read, or at the Judgment.
6 E. 3. Numb. 11, 12. Post Festum San∣cti Gregorii, The Parliament being com∣manded to consult of the keeping of the Peace, and Punishment for the breaking thereof, the Prelates departed, pur ceo que aviz fuit dits Prelates, que ne attinet pas a eux consuler de guard de la Pees ne de chastisament de tiel; yet afterwards, when they heard what was ordained touching those Malefactors, for the apprehension of them by Hue and Cry, &c. to bring them before certain Commissioners to be tried according to Law, the Prelates gave their Consents also to the Act, and added also Excommunication by the As∣sent of King, Lords and Commons.
Anno 10 R. 2. The Commons prayed That such as gave up Forts, puissent estre a respons cest Parlement. Et selon leur de∣sert puis per guard les Seigniors & Baronage.
And thereupon John Gomeniz & William Weston were brought before the Lords a∣foresaid in full Parliament, &c. It is to be understood before the Temporal Lords; for the Bishops are never com∣prized in the Word Baronage.
Anno 11 R. 2. Divers Lords and others being appealed of Treason, & other mis∣demeanors, the Prelates absented them∣selves, during the Tryal having first made Protestation saving their Right to be present in Parliament. Regni more so∣lito considerare,* 2.44 tractare, ordinare, statuere, definire & caetera excercere, cum caeteris Pa∣ribus &c. Verum quia in praesenti Parlia∣mento de nonnullis materiis agitur, in quibus non licet nobis juxta Canonum Sacrorum in∣stituta quomodo libet interesse, Eo propter pro nobis & nostrum quolibet Protestatur quod non intendimus nec volumus sicuti de jure non possumus nec debemus, nec intenditur nec vult aliquis nostrum in Parliamento dum de hujusmodi rebus agitatur vel agitur, quomo∣do libet interesse, sed nos & nostrum quemli∣bet in ea parte penitus absentare: Jure Pari∣tatis nostrae, & cujuslibet nostrum interes∣send. in dicto Parliamento, quoad omnia & singula ibidem excercenda juris, & eorum quilibet statu & Ordine in omnibus semper
salvo. Ad haec insuper protestamur & no∣strum quilibet protestatur, quod propter hujus∣modi absentiam non intendimus nec volumus, nec nostrum aliquis intendit, nec vult, quod processus habiti, & habendi in praesenti Par∣liamento super materiis antedictis, in quibus nec possumus nec debemus ut praemittitur in∣teresse, quantum ad nos, & nostrum quem li∣bet attinet, futuris temporibus quomodo libet impugnentur, infirmentur, seu etiam rever∣tentur.
This was read in full Parliament and enrolled at the Request of the Commons, I mean the Prelates by the Kings Com∣mand and assent of the Lords Temporal and Commons. Here the Protestation saith (de jure, interesse non debemus) but I think it intends that they could not be present by reason of the Common-Law, and by reason of an Ordinance made at the Councell at Westminster, in 21. H. 2. By which all Clergy-men were forbidden, agitare Judicium sanguinis, upon pain to be deprived both of Dignities and Orders. For surely as I think, they might other∣wise have been present both by the Com∣mon-Law and by the Law of God. But by such their long constant absence, even from our first Parliaments upon Record. The Lords Temporal have only heard and
determined all matters concerning Capi∣tal offences, which hath continued in them so long that it is become their Right, &c.
So that now it will be a wrong unto them the Lords Temporal, if the Bishops do any way meddle with such Judica∣tures, either touching the Answers, the Replyes, the Proofs, or the Judgement. For where they may not adjudg, they may not do any thing as a Judge that doth conduce to judgment. And there∣fore as heretofore they would be absent, Now they cannot be present whilst the Matter is in hand, but are to be absent al∣together dum de hujusmodi materiis agita∣tur: For some or other matter may hap∣pen to be Voted in their presence con∣cerning the Answer, Replication, &c. or concerning the Form of Judicature herein: And by the Voices of the Spiri∣tual Lords that Vote may pass against the major part of the Temporal Lords, who should sustain wrong therein.
I know that at all Assizes and Sessions divers of the Clergy are present till Judg∣ment be given in such Cases; but their
Presence cannot prejudice the Judge at the Assizes by Vote, as in Parliament. And at Sessions the Lay and Clergy are equally in Authority to hear and deter∣mine.
Eodem Anno 11 R. 2. A Special Act passed at the Request of the Commons, to make good those Appeals and Judg∣ments, notwithstanding that the Spiri∣tual Lords pur benefit & salvatioun de lour Estate, Cap. 3. & in Parl. Roll, N. 28.
This Act, I conceive, was occasioned by the Clause in the said Protes〈…〉〈…〉 of the Prelates; Ad haec insuper Protest〈…〉〈…〉 &c. quod processus habiti & habendi in prae∣senti Parliamento super Materiis praedictis, in quibus nec possumus, nec debemus interesse, ut praemittitur, quantum ad nos attinet futu∣ris temporibus non impugnentur, &c. For there is no such Act to make good any former Judgment notwithstanding their Absence.
And 2 H. 5. Upon the Petition of the E. of Salisbury, the King & Lords Tempo∣ral adjudged the Judgment against his Father in Parliament, 2 H. 4. to be good, notwithstanding that it was rendred without the consent of the Lords Spiri∣tual, which yet the said Earl alledged as Error in his Petition; so that by the
Judgment of the whole House, neither the Presence nor Absence of the Spiritu∣al Lords in necessary in such Judgments.
In 21. R. 2. The first Petition that the Commons offered was, That before this time many Judgments and Ordinances made in the time of the Kings Ancestors in Parliament, have been repealed be∣cause the Clergy was not present in Par∣liament at the making of the Judgments; and therefore they desired that the Cler∣gy might make a Proctor with a suffici∣〈…〉〈…〉 to consent in their wants, 〈…〉〈…〉 Things and Ordinances to be done in this Parliament, Numb. 9.
Whereupon the Prelates and Clergy being severally examined, deputed for them all Tho. de Piercy.
But in ancient times (in libro Maili∣cess) Numb. 9. which hath written somewhat largely of this Parliament; It is said, The Pardons granted to the Earls of Arundel, were first repealed by the Assent of the Prelates; for which he blames them much, saying, Dederunt ergo locum Praelati Judicio Sanguinis in hoc facto, ita quod dubitatur à pluribus, si in∣currunt irregularitatem pro negotio memora∣to, unde contigit quod propter istud minus peccatum consequentur, nam exactum est ab
iis, vellent, nollent, ut Laicam Personam constituerent, ad Judicium Sanguinis dan∣dum in dicto Parliamento, si necesse foret, & occasio emersisset.
I have perused all Judgments and Or∣dinances in Parliament,* 2.45 and do not yet find one, whereto any Exceptions were taken for the Absence of the Prelates and Clergy.
I find an Exception to the Judgment of the Exile, in 15 E. 2. for that it was made without the Assent of the Prelates, who were present, and protested in wri∣ting against it. And one of the Errors whereupon it was repealed, is, for that it was made without the Assent of them, who were Peers of the Realm in Parlia∣ment.
But this Repeal was per duress & force, &c. prout 1 E. 3. c. 2. So as this cannot be alledged for a Legal Precedent.
5 H. 4. The Earl of Northumberland came before the King, the Lords and Commons in Parliament. The Lords made Protestation that the Judgment belonged to them only, &c.
The Petition being read before the King and the said Lords, as Peers of the
Parliament (unto whom such Judg∣ments do of Right belong) consider∣ing, &c. adjudged that it was neither Treason nor Felony, &c.
Note, That all this Parliament,* 2.46 the Bishop of—was Chancellor, and he as Chancellor, delivered the Opinion of the Lords when they had acquitted the said Earl of Treason. Whereby it seems that He and the other Bishops were pre∣sent at the Trial of Life and Death; wherefore though the Record doth here say the Lords indefinitely, we must un∣derstand the Lords Temporal only; espe∣cially since they claimed the said Judg∣ment to belong to them.
In 4 E. 3. Judgment was given by the Earls, Barons and Peers, as Judges in Parliament, in point of Treason, where the Prelates are not named; and there∣fore understood of the Temporal Lords only. This will be explained by the next of 7 H. 4. Rot. Process coram Domino Rege, &c.
The King commanded the Lords Tem∣poral, Peers of this Realm, to advise what Process to make, and what Judg∣ment to render against the Earl of Nor∣thumberland and the Lord Bardolph. The Lords advised thereupon, and reported
their Opinions to the King. The said Lords, Peers of the Realm, by Assent of the King, Ordain, That Proclamati∣on should be made for the said Earl and Lord Bardolph to appear, or else to be Convicted by Award of the Peers in Parliament.
The King did farther demand the O∣pinion of the said Lords Temporal touch∣ing the Archbishop of York; unto whom the said Lords Temporal said, &c.
The Commons prayed the King that they might have Cognizance, &c. Where∣upon, by Advice of the Lords Tempo∣ral, the Returns of the former Procla∣mations were made at the Parliament-door for the said Earl and Lord to ap∣pear.
By Advice of the said Lords Tempo∣ral, the Returns of the former Procla∣mations were examined, the said Lords Temporal considered of the Errors therein.
By the said Lords Temporal, with the Assent of the King, by their Autho∣rity, New Proclamation is granted, the Return whereof is read in full Parlia∣ment before the King and the said Lords Temporal.
Whereupon, the said Lords Tempo∣ral
then being in the said Parliament, by Advice and Assent of our Lord the King, by their Authority in Parliament, A∣warded the said, &c. Convict of Trea∣son.
Here all was done by the Lords Tem∣poral from the first beginning of the Trial until the Judgment, and yet the Judgment is said to be in Full Parlia∣ment, notwithstanding the Spiritual Lords are not once mentioned, nor in∣tended to be present at any time whilst the Matter of Treason was handled.
I observe the Presence of the Com∣mons to be necessary at the Parties An∣swer and Judgment in Cases Capital.
Now one Reason for the King's Assent, and the Commons presence in such Judg∣ments, may be this; Both King and People are to be satisfied for the death of the Subject; therefore all Trials for Life and Death, are publick in the full Assembly of the Court: And how can it be said in Full Parliament, when the Commons, one of the States, are ab∣sent?
For this purpose the Court of Requests (called Camera Alba) was prepared for such Trials, where both Lords and Com∣mons might meet more conveniently; yet though the Commons were pre∣sent at such times, they had no Voice there. But at their Return to their own Assembly, they considered among them∣selves, if the Proceedings were Legal; and might come again and shew it, and require a Rehearsing of that Cause: as they did at the Judgment of the Duke of Clarence, 18 E. 3.
Nor are the Commons to be present when the Lords do consider of the De∣linquent's Answer, and the Proofs, and do determine of their Judgment.
10 R. 2. Gomeniz and Weston were brought before the Lords and Commons seaux a la blanch Chambre, and Answered on Friday, 27 Novemb. and there they were delivered to the Constable of the Tower, who was commanded to bring them again the next Morning. In the mean time, the Earls, Barons and Ba∣ronets assembled, and advised from the time that the said Answers were given
in Parliament on Friday until part of Sa∣turday to the hour of Three, of the things touching the Answer aforesaid, and then the Prisoners were brought in to the Par∣liament.
10 R. 2. Rot. de Pardonatione Haxei, 7 Febr. Anno praedicto, Praedictus Tho. Haxei coram Nobis & omnibus Dominis Parliamenti Nostri existentibus in Alba Camera adductus fuit, & Billa praedicta co∣ram praefato Thoma ibidem, per Praeceptum Nostrum lecta fuit, & Quaesitum fuit per Charissimum Avunculum Nostrum Ducem Aquitain & Lanc. Seneschallum Angliae, à praefato Thoma, si ipse dictum praefatum Communibus tradidit.
5 H. 4. The Earl of Northumberland was brought to his Trial on Wednesday; Then the Commons were present; but I do not find that they were present with the Lords between Wednesday and Fri∣day, when the Lords advised on the Earl's Petition. This Record mentions not where the Assembly was, Numb. 7. H. 4. Quint. of his Reign.
After the Lords had Awarded Procla∣mation against the Earl of Northumber∣land, and the Lord Bardolph to appear at
a Day, or Judgment to be given. The Commons not being acquainted there∣with, they came and prayed the King, they might have cognizance what was done touching the said Rebellions of Salop, and elsewhere-within the Realm: whereupon, New Proclamations were made, and the subsequent proceedings were done in full Parliament, in presence of the Commons; and the Record saith, upon the Request of the Commons. A Question hath been often asked, Whe∣ther the Commons did heretofore sit at Conference with the Lords? Which I cannot very well resolve; but verily be∣lieve, That at all these Arraignments the Commons did sit with the Lords.
10 R. 2. Gomeniz and Weston were brought before the Lords and Commons sitting in the White Chamber. The Words are, Devant les Seignieurs avant dits en plein Parlement, &c. But the Commons are here intended by the Words en plein Parlement. And so was the Commons Demand, that they may be tried before the Lords.
No other Records speak whether they did sit or stand.
The Presence of the Commons is not necessary, unless they impeach a Delin∣quent, prout 50 E. 3. And then they were present at all the Answers of those whom they Impeached, and demanded Judgment.
And when the Lords had rendred their Judgment against the Lord Lati∣mer, to be prisoner with the Marshal, and to make Fine and Ransom to the King, the Commons prayed the King, he might also be put out of all his Of∣fices, and especially from being Privy Councellor: Which the King grant∣ed.
And when the Lords had determin∣ed one part of the Complaint of the Commons against William Ellis, touch∣ing a wrong done to certain Scottish Merchants, the Commons prayed a ge∣neral Enquiry might be made of the Residue whereof they complained; which the Lords granted.
And when the Lord Nevil Answered, They required that one Richard Love might be examined, to prove that which the said Lord denied, and they depart∣ed;
but two of the Commons remain∣ed, and heard the Examination, and told the Lords, That the said Richard had related it to the Commons other∣wise the day before; which the said Ri∣chard denied. Then all the Commons came and justified it again, and there∣upon the said Richard Love confessed it, and on their Demands was commit∣ted.
This shews what Interest they have in their own Impeachments.
So in 10 R. 2. When the Commons had Impeached the Lord Chancellor, They were present at his Answer, and so often Replied, and enforced his Oath against him, and required him to be Committed, and so he was before Judg∣ment, but Bayled presently.
But if the Commons do only com∣plain, and do neither impeach the Party in Writing, nor by word of Mouth in open House, nor demand Trial to be in their Presence; In these Cases it is in the Election of the Lords whether the Commons shall be present or not.
And therefore when they complained of Alice Peirce, 10 R. 2. The Lords de∣ferred her Trial until the Departure of the Parliament, that is, till the Com∣mons
had leave to depart. And if the Commons presence be not necessary in such Cases where they complain, much less is it wherein they complain not; yet they have been present when they did not complain; but that was upon an extraordinary Cause, prout 7 R. 2.
A Fishmonger exhibited his Com∣plaint, first to the Commons against the Lord Chancellor, and afterwards to the Lords in Full Parliament, in presence of the Commons. But they were present no doubt at the Lord Chancellor's Re∣quest, That he might clear himself in Publick of the Slander, and so he did.
In Cases Capital,* 2.49 the Judges are to be present also, otherwise it is not a Full Court; but they have no Voyce. And though there be divers Precedents that complain of the Prelates, prout 21 R. 2. & 2 H. 5. and this last of the Commons, yet there is not one Precedent that finds fault with their Absence in these Cases; for they are not tractare cum caeteris Mag∣natibus, but cum caeteris de Concilio.
Here may be Objected that which Tresilian and other Judges answered to one of the King's Questions, 11 R. 2. touching the Judgment of Michael de la Poole, That the same Justices and Ser∣jeants would not give the same Judg∣ment, because it seemeth to them, that the same is irrevocable, as erroneous to every part. Vid. Print. Stat. 21 R. 2. Tresilian was much mistaken, as much as in the other Answers, whereby he determined that to be Treason; and so here he gave his Advice, not his Con∣sent: And yet he saith, he gave his Consent. Read but a little further, and you shall find in the very same place, as followeth; Which Questions and An∣swers, as well before the King, as before the Lords and Commons, were read and perceived; and it was demanded of all the States of Parliament, how they thought of the Answer? And they said, They thought the Justices made and gave the Answers duly and lawfully, as good and liege People of the King ought to do.
And in the same manner Sir Tho. of Shelton, Learned in the Law, and Will. Hawkford, and Will. Beechley, the King's Serjeants, being demanded by the King,
of their Advice, &c. and my Lord Will. Thurning of the Common Pleas, &c. That the Declaration of Treason not declared, belongeth to the Parliament: And if he had been demanded, he would have said in the same manner.
And in like manner my Lord William Rickill, Justice of the Common Bench, and after the coming of my Lord William Clopton, Chief Justice, he said thus; Wherefore the said Answers be judged good, and affirmed sufficient in the said Parliament.
Whereupon the King, by the Assent of the Lords Spiritual and Temporal, and the Procurators of the Clergy, and the said Commons, and by the Advice of the said Justices and Serjeants there be∣ing, It was Awarded and Adjudged, &c.
Here you see the Manner of the Judges Assent, viz. their Advice only. Nor shall you find their Assents to any Statute; yet the Judges have ever used to be pre∣sent at the Trials in Parliament upon Life and Death, 5 H. 4.
The King delivered the Earl of Nor∣thumberland's Petition to them. And at the Trial of any Peer out of Parliament, the Judges are ever present on that Day;
and their presence is necessary for their Counsel to the Lords; but their Assent is not necessary to the Judgment.
How this was Anciently, appears in the Appeals, 21 R. 2. Touching the Death of Simon Burley, viz. It was de∣manded of every Lord who was present at the said Parliament, his Advice of the said Simon touching his Crime.
Eodem Anno, in the Print. Stat. 21 R. 2. The Judges Opinions were demanded in the same manner; beginning with the Serjeants, &c. and so ascending to the Chief Justice.
And at this Day the Question is put by the Chancellor or Lord Keeper, and the puisne Baron answers first, Con∣tent, or not Content; and so the Lords in Order: But their Lordships do first debate the Judgment amongst them∣selves, and the Question is out of that which seemeth to be most generally agreed on.
First, Whether it be ultra Legem. Secondly, By whom to be Demanded. Thirdly, By whom to be Rendred.
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 Be∣headed, might it be left to their Discre∣tion. 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, Do∣lentes 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 Be∣headed.
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 opprobri∣ous Death of a Traytor, is, to be Drawn and Hang'd; which the Par∣liament could not alter, no not in their Judgments against the King's own Un∣kle. It was per Legem Regni infligen∣da. The King might pardon all, and usually did, except Beheading of the Nobility of his own Blood, and of la∣ter Times, to all Noblemen.
As the Parliament could not dispence
with, nor omit any part of the Judg∣ment 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 no∣thing 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 Fa∣vour to her Friends from the late King, contrary to a former Order of Coun∣cil.
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 For∣feitures.
1 H. 4. The Lords Adjudged and Declared the Earls of Kent, Salisbury, and others to be Traytors, and to For∣feit, 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 indefi∣nite, 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 qua∣lity 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 Ly∣ons; where, after Judgment, they cal∣led 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 A∣merciaments 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.
In Complaints of Extortion and Op∣pression, the Lords Awarded Satisfacti∣on to the Parties wronged, which some∣times 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 Com∣mandment 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 Raven∣sholme 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 deter∣mined the same. And the Justices ad∣judged him convict of Slander; and that the Lord Chancellor should reco∣ver his Damages, which they Taxed at 1000 Marks, and that he be imprison∣ed until he had satisfied the Chancel∣lor, 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 Du∣ress, 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 Chan∣cery. By Advice of the Grand Coun∣cel, 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.
Nor could the Lords judge any Com∣plaint of private persons, where the party might have his Remedy at the Common Law; prout Botheil & Cooper Anno 50 E. 3. accused William Ellis for extorting 17 Nobles from certain Mer∣chants at Pruse; and also for their wrong Imprisonment, by the false Suggestion of William Ellis to the King. And the Lords referred the taking of the 17 Nobles to the Common Law. But up∣on the Examination of the Imprison∣ment, it was proved, That Ellis did write his Letters to one of the King's Bed-Chamber, falsly suggesting against Botheil and Cooper, which Letters were shewn to the King, his Majesty then commanded them to be Committed.
This the Lords expounded to be false Suggestion in Ellis. The King himself judged him for the same.
Had that Point been cleared in the Statute of False Suggestions, haply the Lords would have referred it to its pro∣per place.
So also, Anno 5. E. 2. The Lords re∣ferred the Accusation of Clingdon, to be Tried at the Common Law.
That verily belongs to the Party at whose Suit it is; To the King's Coun∣cel for the King, if the Articles were de part le Roy; and to the Commons, against an Impeached Delinquent.
It appeareth plainly by many Pre∣cedents, That all Iudgments for Life and Death, are to be rendred by the
Steward of England, or by the Steward of the King's House; and this is the Reason why at every Parliament, the King makes a Lord Steward of his House, though he hath none out of Parliament. And at such Arraignment, the Steward is to sit in the Chancel∣lor's place: And all Judgments for Misdemeanors by the Chancellor, or by him who supplies the Chancellor's place.
ANno 10 R. 2.* 2.54 John Lord Gome〈…〉〈…〉, and William Weston were brought by the Constable of the Tower before the Lords in Full Parliament, sitting in the White Chamber; where they were severally Arraigned at the Command∣ment of the Lords, by Richard le Scroop, Chief Steward of the House of our Lord the King, in manner following:
Here the Lords commanded the Ar∣raignment of certain Earls, Peers of the Realm: They did not appoint the Steward to do it: It belonged to his Of∣fice.
Anno 20 R. 2. Thomas Haxey was Ar∣raigned of High Treason before the King, the Lords and Commons in full Parliament, in Alba Camera, by the Duke of Lancaster Seneschallum Angliae, and the Judgment rendred by him.
Anno 21 R. 2. All those Judgments on the Appeal were rendred per Senes∣challum Angliae. The Records of E. 3. and H. 4. are silent herein, by whom the Judgment was rendred.
It may be Objected,* 2.55 That Anno 5. H. 4. The Lord Chancellor kept his place at the Trial of the Earl of Northumber∣land, because he did deliver the Opini∣on of the Lords.
That could not properly be called a Trial; for it was upon the Earl's own Petition. And if it were resolved whe∣ther it were Felony or Treason, it should have been done by the Steward, sitting in the Chancellor's place. Nei∣ther doth it appear by the Record, that the Chancellor kept his place, though he afterwards delivered the Opinion of the Lords.
So likewise, Anno 1 Car. 1. Febr. 6. The Lord Keeper kept his place when the Articles of Treason were read a∣gainst the Earl of Bristol; but he did not Arraign him. Then they were read, and his Answer heard by the ap∣pointment of the House, and some Wit∣nesses
examined also, to the end they might understand the true Nature of his Offence, and then to declare how, and in what manner to proceed against him for the same.
The Spiritualty did not deliver their Opinion therein.
To conclude, All Records that are (which mention by whom the Delin∣quents in Cases Capital were Arraign∣ed) do say that it was by the Stew∣ard of England, or of the King's House, And in remembrance of this, a Lord Steward is appointed at every Trial of a Peer of Parliament.
Touching Judgment rendred by the Chancellor in Cases of Misdemeanors, it is needless to recite any Precedents: only this I will say, The Chancellor never gave Judgment on Life and Death, and the Steward never on Misdemea∣nors.
And though there be Precedents of Judgments given by the Steward of England in Parliament, prout 20 & 21 R. 2. yet I have seen none of the Judg∣ments on the Peers rendred by the
Steward of the King's House: And the reason may be, for that there was an∣ciently a Seneschallus Angliae. Quaere tamen whether the Steward of the King's House, being a Peer, may give Judg∣ment on a Peer or not. I think he may, if there be no Steward of the House constantly made every Parlia∣ment, though but during the Sessi∣ons.
The last Considerable Thing in Ju∣dicature is,
ANd first in Capital Offences, I have seen but two Precedents thereof in the Parliament-Rolls.
The First is, 4 E. 3. Which begun on Monday after the Feast of S. Kathe∣rine. There were long Articles exhi∣bited against Mortimer for Treason, and he was adjudged to die for Treason; and thereupon, saith the Record, Com∣mandment was given to the Earl Mar∣shal to Execute the Judgment; and al∣so to the Mayor, Aldermen and She∣riffs of the City of London, and to the Constable of the Tower, and likewise to them who had the Guard of the said Mortimer, to be aiding to the said Earl Marshal, to do the said Executi∣on. The which Execution was done and performed upon Thursday, next af∣ter the first Day of the Parliament, which was the 29th. Day of Novem∣ber.
Ibidem Num. 2. Judgment was given on Simon de Bereford, to be Drawn and Hang'd: And thereupon it was Com∣manded that the Marshal should do Ex∣ecution near the Tower of London. And the said Earl of Arundel was Beheaded ou the same Day. The Earl of Not∣tingham, one of the Lords Appellants, was Lord Marshall at that time, and therefore his Deputy did Execution.
Item, The Earl of Warwick being ad∣judged to die, the King did pardon the Execution, and granted him his Life, viz. That he should remain in perpe∣tual prison out of England, in the Isle of Man, &c. And that he be at Sea on his passage, before the end of one Month. And thereupon he was delivered to Monsieur William le Scroope, and to Mon∣sieur Stephen his Brother, to bring him safely to the said Isle of Man, &c.
The Earl Marshal was Commanded to Execution on a Peer, and the Mar∣shal on a Commoner.
The Command no doubt issued from the Lords, with the King's Assent here∣in.
Thus much touching Execution quoad Mortem.
In Misdemeanors, the greatest Cor∣poral punishment hath been Imprison∣ment. I find no other in Ancient Par∣liament: But who was the Officer to carry the Delinquent to prison, is not Recorded, save he to whose Custody he was Committed, prout 42. E. 3. John at Lee was Committed to the Tower. Et dit fuit al Monsieur Alley de Buxhill, Constable de la Tower, que il 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 up∣on 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 ap∣peareth not who carried him thither. At this Day the Lords have used to im∣pose some Corporal punishment on Mis∣demeanors, prout Flood.
And at this Day if a Peer be Com∣mitted 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 thi∣ther.
Anno 1 Car. 1. In the Parliament be∣gun 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 punish∣ment inflicted on him.
Anno 18 Jac, Wright and two Serje∣ants at Mace, who had Arrested a Servant to the—were Censu∣red 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 Ex∣ecuted on them, he himself was Com∣mitted.
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 Ex∣ecutors of the Lady Ravensholme; nei∣ther 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 Chan∣cery, 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 notwithstand∣ing this Forfeiture, If she hath purcha∣sed 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 award∣ed to pay 1000 Marks to the Lord Chan∣cellor for his Damages, and to remain in Prison until he had paid it.
Peers to render Judgment on Peers.
Quite con∣trary to the Law of the Land.
How Bi∣shops are tryable.
The nature of the offence.
In whnt Cases, &c.
Of Judg∣ments on Delin∣quents.
Four man∣ner of Ac∣cusations in Parlia∣ment.
Complaints by Peti∣tions.
Petition.
Respons.
Answer.
Answer.
Impeach∣ments of the Com∣mons.
Observe.
Observe.
Mortymer and Cob∣ham.
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 Accu∣sation by Informa∣tion Ex parte Do∣mini Re∣gis.
The Judg∣ment, de∣fective in all points.
The Lord Berkley arraigned waved his Peerage.
Quest.
Resolv.
Observ.
The Earl of Bristol charged with Trea∣son.
Articles against the Duke of Bucking∣ham.
Quest.
Resolve. 1.
Observ.
A Petition.
The Lords cannot im∣peach any to them∣selves.
A great Oppressi∣on.
Prom••o∣ter.
The Fish∣monger contra L. Chancellor.
The Chan∣cellors Answer.
The Chan∣cellor ac∣quitted.
The Fish∣monger guilty of the Defa∣mation.
Bish. Wil∣liams Lord Keeper.
The Hi∣story of the Appeal of 11 R. 2.
The Lords cannot pro∣ceed against a Commoner but upon complaint of the Com∣mons.
Appeals a∣bolished per Stat. 1 H. 4. c. 14.
An Answer required, though the Duke was known to be dead.
Found guil∣ty long time after he was dead, so forfeited his Estate.
The Party accused to be brought to his An∣swer.
Touching Councel.
In Misde∣meanor the Party may have Coun∣cel to an∣swer.
The Mayor and Com∣monalty of Cambr. accused.
The Parl. hath com∣pelled a present An∣swer iu Misdeme∣nors, and without Councel.
The Re∣plication next which belongs to him or them that sue.
Impeach∣ment a∣gainst the L. Laty∣mer.
His An∣swer.
His An∣swer to each Par∣ticular.
W. Ellis impeach'd.
His Answ.
The Reply.
The Lord Nevile impeach'd.
Witnesses.
Witnesses by the Commons.
A Commit∣tee for Tri∣al of Alice Peirce.
George Duke of Clarence arraigned.
No man questions the Duke but the K. none an∣swers the King but the Duke.
Against Law that the King should en∣force Te∣stimony a∣gainst a Delin∣quent.
A Royal wise An∣swer.
The Com∣mons ac∣cusare & petere.
Observe.
In what Cases the King's As∣sent is ne∣cessarily 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 Judg∣ment on Misdemea∣meanors the King's Assent is not requi∣red.
The Lords Spiritual.
In Cases of Misdeme∣nor they may be present.
In Cases Capital may not be present,
The Prote∣station of the Bishops forever.
Observ. No exce∣ptions ta∣ken for the Ab∣sence of the Pre∣lates.
Note espe∣cial.
The Pre∣sence of the Com∣mons in Cases Ca∣pital.
The Pre∣sence of the Com∣mons not necessary.
The Pre∣sence of the Judges.
How the Lords re∣solve on their Judg∣ments.
Judgm. for Satis∣faction.
Touching the De∣mand.
By whom Judgment ought to be rendred.
The Pre∣cedents of Life and Death.
Obj.