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

Witnesses produced by the Commons.* 1.1

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,* 1.2 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.* 1.3 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.* 1.4 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.* 1.5 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▪

Notes

• * 1.1

  Witnesses by the Commons.
• * 1.2

  A Commit∣tee for Tri∣al of Alice Peirce.
• * 1.3

  George Duke of Clarence arraigned.
• * 1.4

  No man questions the Duke but the K. none an∣swers the King but the Duke.
• * 1.5

  Against Law that the King should en∣force Te∣stimony a∣gainst a Delin∣quent.