John Selden, Of the judicature in parliaments a posthumous treatise, wherein the controveries and precedents belonging to that title are methodically handled.

§. 5. Of Accusation by Complaint of pri∣vate Persons.

I do not remember any Precedent of this manner of Accusation for publick Offences unless the Parties Complainant be particularly interessed therein; yet I doubt not but such Complaints have been, and may be received, and the Parties proceeded against in Parliament, or else that High Court should not have so much Authority to receive 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,* 1.1 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* 1.2 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,* 1.3 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,* 1.4 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,* 1.5 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.

The Proceedings before the Judges were in a Schedule, annexed to the Parliament-Roll, and were thus;

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,* 1.6 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,* 1.7 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,* 1.8 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,* 1.9 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.

And then follows another Impeachment of the Commons; thus:

The Accusements and Impeachments made by the Commons of the Realm, against Simon de Burle, Sir John 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;* 1.10 but God be thanked, they are abo∣lished, 1 H. 4. c. 14.

Notes

• * 1.1

  A great Oppressi∣on.
• * 1.2

  Prom••o∣ter.
• * 1.3

  The Fish∣monger contra L. Chancellor.
• * 1.4

  The Chan∣cellors Answer.
• * 1.5

  The Chan∣cellor ac∣quitted.
• * 1.6

  The Fish∣monger guilty of the Defa∣mation.
• * 1.7

  Bish. Wil∣liams Lord Keeper.
• * 1.8

  The Hi∣story of the Appeal of 11 R. 2.
• * 1.9

  The Lords cannot pro∣ceed against a Commoner but upon complaint of the Com∣mons.
• * 1.10

  Appeals a∣bolished per Stat. 1 H. 4. c. 14.