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

Touching the First.

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.