The excellency of monarchical government, especially of the English monarchy wherein is largely treated of the several benefits of kingly government, and the inconvenience of commonwealths : also of the several badges of sovereignty in general, and particularly according to the constitutions of our laws : likewise of the duty of subjects, and mischiefs of faction, sedition and rebellion : in all which the principles and practices of our late commonwealths-men are considered / by Nathaniel Johnston ...

SECT. 4. Of the Judicature of the House of Lords.

IT is evident that the Lords in Parliament have ever been the usual Judges, not only in all criminal and civil causes, pro∣per for Parliaments to judg or punish, and Writs of Errors, but likewise in all cases of Precedencies, and Controversies concerning Peers and Peerage, which Power was in them as the King's Supreme Court, before there were any Knights, Ci∣tizens, or Burgesses summoned to our Parliaments. So Hove∣den(y) is express in the case of Sanctius, King of Navar, and Alphonsus, King of Castile: Comites & Barones Regalis Curiae Angliae adjudicaverunt, Anno 1177. 23 H. 2. So Fleta in Ed. the First's time, writes(z) thus; The King hath his Court in his Council, in his Parliaments, there being present the Prelates, Earls, Barons, Nobles, and other skillful Men (viz. the Judg∣es Assistants) where are ended the doubts of Judgments.

This Particular of the Jurisdiction of the House of Lords, is so fully in every Branch of it proved by Mr. Prynn in his Plea for the Lords House, that it were an Injury to the inquisitive Reader, not to referr him to that Treatise for full Satisfaction; therefore I shall only pick out a very few out of a Manuscript I have of the Priviledges belonging to the Baronage of England, and Mr. Prynn.

In the fourth of King(a) Edward the Third, the Peers, Earls and Barons assembled at Westminster, saith the Record, have strictly examined, and thereupon assented and agreed, that John Mautravers is guilty of the death of Esmon Earl of Kent, Uncle of our Lord the King that now is: wherefore the said Peers of the Land, and Judges of Parliament, judged and awarded, that he the said John should be drawn, hanged, and beheaded.

In the first of R. 2. John Lord of(b) Gomenys, and William de Weston, were brought before the Lords, sitting in the white

Chamber, and were severally charged at the Commandment of the Lords, by Sir Richard Scroop Knight, Steward of the Kings House: William Weston being accused for rendring the Castle of Outhrewike, and John Lord of Gomenys for rendring the Castle of Ards. They both made plausible defences, and Sir Rich. Scroop Steward, tells William, that the Lords sitting in full Parliament do adjudge him to death. But because our Lord the King is not yet informed of the manner of this Judgment, the execution thereof shall be respited till the King be informed thereof; and the like Sentence he passed upon John Lord of Gomenies, only adding, that he being a Gentleman, and Banneret should be beheaded.

There are many more Examples of Judgments given in Ca∣pital matters upon Bergo de Bayons, 4 E. 3. m. 7. num. 4. Tho∣mas de Gurny eadem membrana num. 5. and others; and for Of∣fences not Capital, of Richard Lions, 59 E. 3. m. 7. William le Latymer, 42 E. 3. m. 2. William Ellis, ibid num. 31; John Chi∣chester and Botesha, 1 R. 2. num. 32. Alice Piers, Ibid. num. 41.

Mr. Prynn(c) shews this Jurisdiction out of Historians, even from Cassibellan, out of Geoffrey of Monmouth. Also, Anno 924. of Elfred a Nobleman, who opposed King Aethelstan's Title, and had his Lands adjudged by the Peers forfeit to him; the Words of the King are, Et eas accepi(d) quemadmodum judicave∣runt omnes ••ptimates Regni Anglorum.

So Earl Godwin having murdred Prince Alfred, Brother to King Edward the Confessor, being fled into Denmark, and hear∣ing of King Edward's Piety and Mercy, returned, and came to London to the King, who then held a Great Council, and de∣nied the Fact, and put himself upon the(e) consideration of the Kings Court, and the King speaks to the Earls and Barons thus, Volo quod inter nos in illa appellatione rectum judicium decernatis, & debitam justiciam faciatis, and after it is said, Quicquid ju∣dicaverint per omnia ratificavit.

So in the Constitutions of(f) Clarendon, it is appointed, That the Archbishop, Bishops, and those Clergy that held in Capite, as by Barony, should be Parties in the Judgments of the Kings Court as other Barons ought, with the other Barons, till it come in Judgment to the loss of Member, or to Death.

So in the Case of Tho. Becket Archbishop of Canterbury, Anno 1165. 11 H. 2. we find in Hoveden, parte post, p. 494, 495. that, Barones Curiae Regis judicaverunt eum esse in misericordia Regis: and afterwards, when he would not yield to the Kings Will, he(g) saith to his Barons, Quickly make to me Judg∣ment of him who is my Liege Man, and refuseth to stand to the Law in my Court: The Barons going out judg'd him fit to be seiz'd on, and sent to Prison, and the Historian saith, tunc misit Rex Reginaldum Comitem Cornubiae & Robertum Comi∣tem Leicestriae ad indicandum ei judicium de illo factum.

Anno 1208. King(h) John exacted Pledges of his Subjects; and amongst others of William de Breause, who said, If he had

offended the King, he would be ready to answer his Lord, and that without Hostages, secundum judicium Curiae suae & Baronum Parium suorum.

So Anno 1240. 24 H. 3.(i) Matthew Paris saith, That Hu∣bert de Burgo, Earl of Kent, was grievously accused before the King and his whole Court, and it was adjudged he should resign to the King four of his Castles.

I cannot omit one memorable passage, that,(k) Anno 1260. 44 H. 3. there falling out a difference betwixt King Hen. 3. Prince Edward his Son, Simon Montfort, and other Nobles, the King called his Baronage to St. Pauls, and there it being urged, that Prince Edward had done some injuries to the King, he offered to prove himself innocent before the King and his Uncle, who was King of the Romans; saying, That none of(l) the rest of the Barons and Earls were by right his Peers, nor ought to exercise upon him their Discussions of the matter. By which it appears, that he judged himself to be something more than a Peer of the Realm, being the Heir apparent of the Crown.

I might fill a large Volum with the Histories and Records, to prove this; but since Levellers, and the House of Commons that voted the House of Lords dangerous and useless, have re∣ceived such deadly wounds by Mr. Prynne in his Plea for the Lords, who was once one of their own Champions, I think it needless to whet those Weapons again, since they always will be in readiness for any one to make use of if need require; and shall only obviate one objection that may be urged, That whatever the usage was before the Representatives of the Com∣mons, yet the Commons after were often admitted to a share of Judicature in some cases: But I shall give a few Instances, how, after this change of the Constitution of Parliament, still this power of Judicature remained in the King and House of Lords.

Roger de(m) Mortimer being accused of High Treason, 4 E. 3. for the Murther of King Edward 2. after his resignation and unlawful deposition; Knighton(n) giving an account of the proceedings agreeable to the Parliament Roll, saith, Rex prae∣cepit Comitibus, Baronibus, & caeteris Magnatibus Regni justum ju∣dicium ferre super praedicto Rogero de Mortimer: So at the Par∣liament held at Salisbury, 7 R. 2. W. de Zouch is said to be cal∣led to the Parliament, to stand to the Judgment(o) of the King, and the Lords: So Michael de la Pole, Earl of Suffolk, and Chancellor of England, 10 R. 2.(p) was accused by the Commons in full Parliament, before the King, Bishops and Lords; and at last it is said, The Lords in full Parliament gave judgment against him.

In the Parliament 11 R. 2. Thomas Duke of Gloucester offered to put himself upon his Tryal as the Lords of the Parliament would award, &c. After which the Lords, as well Spiritual as Temporal, claimed their Liberties and Franchises, namely, That

all weighty matters in the same Parliament which should be after moved touching the Peers of the Land, should be judged and determined by them by the course of Parliament, and not by the Civil Law, nor yet by the Common Law of the Land, used in other Courts of the Realm.

Yet this seems a very high Demand; for they have not Juris dandi but dati Jurisdictionem, as they are a Court of Mini∣sterial Jurisdiction, being the Court of the King's Barons in Parliament. And though, when upon Writ of Error(q) any Judgment in the King's Bench is examined in the House of Lords, and there affirmed or reversed, the Judgment is said to be affirmed or reversed in Parliament; yet we cannot con∣clude, they have the Power of the High Court of Parliament, that their Decrees (if against the Law) should be as binding as Acts of Parliament. And though the same House, in the same Session, may not have Power to review again their own Judgment, nor to restore again any Judgment they have re∣versed, because they judge ministerially, and not sovereignly, and so bind their own Hands, as well as their Inferiors; where∣as an Absolute Supreme Court is never at the last Period of Ju∣risdiction: yet we see Attainders in one Parliament reversed in another; and so may their Judgments be. But this obiter.

I shall but add one proof more, being full and express to the purpose, to prove the House of Lords sole Jurisdiction with the King, (who must always be understood to give Judgment by them:) The Record is 1 H. 4.(r) where it is said, That 3 Nov. the Commons in this Parliament shewed to the King, Come les joggements du Parlement apperteignent soulement au Roy & Seignieurs, & nient aus Communes, &c. That the Judgments of Parliament appertained only to the King, and to the Lords, and not unto the Commons: Thereupon they prayed the King, out of his special Grace, to shew unto them the said Judgments, and the cause of them; that so no Record might be made in Parliament against the said Commons, which are or shall be parties to any Judgment given, or hereafter to be given in Parliament, without their Privity. Whereunto the Archbishop of Canterbury gave them this Answer by the Kings Commandment, That the Commons themselves are Petitioners and Demanders, and that the King(s) and Lords from all times have had, and shall have of right the Judgments in Par∣liaments in manner as the Commons have shewed.

How far the King and House of Lords have been Judges of the Priviledges of the House of Commons, I shall declare in that part of this Chapter wherein I treat of that House.

Notes

• 6. The Lords Judi∣cature.
• (y)

  Annal. pars poster. p. 561. ad 566.
• (z)

  Habet enim Rex Curiam suam in Con∣cilio suo in Parlia∣mentis suis, praesenti∣bus Pralatis, Comiti∣bus, Baronibus, Pro∣ceribus, & aliis viris peritis, ubi terminatae sunt dubitationes ju∣diciorum. Lib. 2. c. 2. p. 66.
• (a)

  Ro••. Parl. 4 E. 3. m. 7. num 3. Judgment of Lords on John Mautravers.
• (b)

  Rot. Par. 1 R. 2. m. 6. num. 38, 39.
• On John Lord of G••menys, and Willi∣am Weston, for deli∣vering up Forts to the Enemy.
• Antiquity of Judg∣ment by Pee••s.
• (c)

  Plea for Lords, p. 203. Hist, lib. 4.
• (d)

  Malmsb. de Gest is Reg. lib. 2. c. 6. p. 62. Spelman. Conc. Tom. 1. p. 407, 408. Anno 1043.
• (e)

  vnde super hoc, pono me in conside∣ratione Curiae vestrae. Chron. Brompton. col. 937, 938.
• (f)

  An. 1164. M. Pa∣ris 94. Sicut Barones caeteri debent interesse judiciis Curiae Regis cum Baronibus quous∣que perveniatur in ju∣dicio ad diminutionem membrorum, vel ad mortem. The House of Lords the King's Court of Barons.
• (g)

  Dixit Baronibus su••s, Cito facite mihi judicium de illo, qui homo meus Ligeus est, & stare Juri in Cu∣ria mea recusat.
• (h)

  Anno 10 Johan. Mat. Paris, p. 218.
• (i)

  Graviter accusa∣tus coram Rege, & Cu∣ria tota. Lond. Mat. Westm. 153.
• (k)

  Mat. Westm. Anno 1260. p. 295, 296.
• Who are Peers of Prince Edward.
• (l)

  Omnes alios Baro∣nes & Comites, sibi de ••ure non esse Pares, nec s••••s in eum excercer•• dis••ussiones.
• An Objection, That after the House of Commons were ad∣mitted, the Juris∣diction of the Lords House was lessened; Answered.
• (m)

  4 E. 3. num. 11.28 E. 3. num. 9, 10.
• (n)

  De Event. Angliae, lib. 3. c. 16. col. 1556, 1557.
• (o)

  Ad standum judi∣cio Regis, & Dominc∣rum. Wal••ingham, p. 334. Hist. Ang. & Hypodig. Neust. p. 141.
• (p)

  Rot. Parl. 10 R. 2. num. 6. ad 18.
• (q)

  Egerton, sect. 4.22, 23.
• How the Lords judge ministerially.
• (r)

  Rot. Par. 1 H. 4. num. 79. Exact Abridgment, p. 392.
• (s)

  Et que le Roy, & les Seigniours de tout temps, ont eues, & a∣veront de droit, les Juggement in Parlia∣ment, en manere come mesmes les Communes so••t monstres.