Mr: Hide's argument BEFORE THE LORDS IN THE upper house of Parliament. April 1641.  
Printed in the year, 1641.   

Mr. HIDES argument Before the LORDS in the upper House of Parliament. April. 1641.  
MY Lords, I am commanded by the Knights, Citizens, and Burgesses of the House of Commons to present to your Lordships a great and crying grievance, which though it be complained of in the present pressures, but by the northern parts, yet by the logic and Consequence of it, it is the grievance of the whole kingdom. The Court of the precedents, and counsel of the North, or as it is more usually called, the Courts of York, which by the spirit and ambition of the Ministers, truste● there, or by the natural Inclination of Courts to enlarge their own power and jurisdiction, hath so prodigiously broke down the banks of the first council, in which it ran, that it hath almost overwhelmed that country under the Sea of Arbitrary power, and involved the people in a Laberynth of distemper, oppression and poverty.  
Your Lordships will give me leave not with presumption to inform your great understandings, but that you may know what moved the house of Commons to their resolutions to remember your Lordships of the foundation, and erecting this Court, and of the progress and growth of it.  
Your Lordships well know, that upon the suppression of all religious houses to such a value in the 27 year of H. 8. from that time to the thirtieth year of that King's reign, many (not fewer than six Insurrections) and Rebellions were made in the Northern parts, under pretence of that quarrel, most of them under the command of some eminent person of that country, the which being quieted before the end of the thirtieth year, that great King well knowing his own mind, and what he meant to do with the great Houses of Religion; in the year following for prevention of any inconvenience that might ensue to him upon such distemper, in the 31. year of his Reign granted a Commission to the Bishop of Landaffe, the first President, and others for the quiet government of the County of York, Northumberland, Cumberland and Westmoreland, the bishopric of Durham, the counties of the Cities of York, Kingston upon Hull, and Newcastle upon Tyne. But my Lords this Commission was no other than a Commission of Oyer and Terminer, only it had a clause at the end of it, for the hearing of all causes real and person, quando ambae partes, vel altera pars sic gravata paupertate fuerit, quod quomodo vis suum secundum legem Regni nostri, aliter persequi non possit, which clause how illegal soever, for that it is illegal and void in Law, little doubt can be made yet whether they exercise that part of the Commission at all, or so sparingly exercised it, that poor people found ease and benefit by it. I know not, but at that time I find no complaint against it, till the coming in of King James the Commission continued still the same, and that in the first year of his reign to the Lord Sheffeild varied no otherwise from the former, save, only it had reference to Instructions which should be sent, though any new sent or no is uncertain, but we can find none.  
In June, in the seventh year of the reign of King James a new Commission was granted to the same man (the Lord Sheffeild) very differing from all that went before, it being left out, that they should inquire per sacramentum bonorum & legalium hominum, and to hear determine secundum leges Angliae, Relation being had only to the Instructions, which were the first Instructions, we can find were sent thither, though I told your Lordships there were some mentions of some In 1. I shall not trouble your Lordships with these Instructions, nor with the other that followed in 14. Jacobi to the same man, nor in 16. Jacobi, when a new Commission was granted to my Lord Sunderland, nor indeed with any till we come to these present Instructions, and Commissions under which that part of the kingdom groans and languisheth.  
My Lord of Strafford came to that government in Decemb. 4. Caroli, and since the Commission hath been three several times removed, in the fift year in March, in the eighth in Novemb. in the thirteenth year of his majesty's reign into that Commission of 8. and 13. a new clause served in for the granting, sequestering, and establishing Possessions according to instructions, crowded in a mass of new exorbitant and intolerable power, though our complaint be against this Commission itself, and against the whole body of those instructions: I shall not misspend your lordship's precious time in desiring to have the whole read, but shall presume to trouble your Lordships only with five or six of the instructions, that by the vast irregularity of those your Lordships may judge, how insupportable the whole burden is. I shall not trouble your Lordships with the ninth Instruction, though it be but short, which introduceth that, miseram servitatem, ubi jus est vagum, & incognitum, by requiring an obedience to such ordinances, and determinations, as be or shall be made by the council Table, or high Commission Court. A grievance my Lords, howsoever consuetudo & peccantum claritas nobilitaverit han● culpam, of so transcendent a nature, that your lordship's noble justice will provide a remedy for it, with no less care, than you would rescue the life and blood of the commonwealth.  
Read the 19 22, 23, 24. 29. and 30. I will not trouble your Lordships with reading more, there being among them in the whole 58. Instructions, scarce one that is not against, or besides the Law.  
Whether His majesty may caution out a part of his kingdom to be tried by Commission, though according to the rules of Law, since the whole kingdom is under the laws and government of the Courts established at Westminister, and by this reason the several parts of the kingdom may be deprived of that privilege, will not be now the question; that his majesty cannot by Commission erect a new court of Chancery, or a proceeding according to the rules of the Star-chamber, as most clear to all who have read Magna Charta; which allowed no proceedings, nisi per legale judicium parium & per legem terrae: for our court of Chancery hear by long usage and proscription is grown to be as it were lex terra. But my Lords, the thirtieth Instruction goes further, and erects such an empry, such a Dominion, as shall be liable to no contrary.  
The Courts of Westminster, my Lords have superintendences over all inferior Courts to regulate their jurisdictions, if they exceed their limits. As to hold Plea of greater value, or the like in his exercise of jurisdiction, the judges are sworn to grant, and send prohibitions, and to stop the granting of these prohibitlons, or to neglect them, when they are granted, is the greatest and boldest scorn of the Law, and the lawmakers that can be imagined.  
The King's Courts at Westminster, having been always of that awful and reverent esteem, with inferior judges, that the Instances of such contempts against them are very rare and exemplary in the punishment.  
The Bishop of Norwich in Trinity term, in the twentieth year of Edward the third, in Rot. 289 in the common Pleas in Hillary term 21. in the King's Bench, was attached for disobeying a prohibition at the suit of Stracill, upon full and solemn dissension of the whole matter, the Court resolved, that the proceedings of the Bishop were in obedientiam & diminucorem Domini, & potestatis Regiae authoritatis suae lectionem & coronae suae exhereditationem manifestum, &c. As the words of the Records are, and therefore adjudged the temporal ties of the Bishop to be seized into the King's hand, and great, verily great damages to be paid to plaintiffs: And whosoever gave directions for these stout Instructions, might have remembered that no longer since then Michaelmas, in the seventh year of Eliz. Rot. 31. An Attachment was granted against the Archbishop of York then President of that counsel, for forbidding the gaoler of York to deliver one Lambert his Prisoner, who was sent for by a habeas corpus from the King's Bench, and if they would have believed the resolution of all the judges in England, in Trinity Term, in the 6. year of King James, they would have known how unfit it had been to enlarge that jurisdiction, since most of their proceedings being of an inferior nature to what they are now grown, were then declared to be illegal & inconsistent with the liberty of the Subject.  
And can such a court, as this my Lords deserve to live? what a compendious abridgement hath York gotten of all the courts in Westminster Hall, whatsoever falls within the cognizance, orjurisdiction of either courts here is completely determinable within, that one Court at York, besides the power it hath with the ecclesiastical and high Commission courts.  
What hath the good Northern people done, that they only must be disfranchised of all their privileges by Magna Charta, and the Petition of right, for to what purpose serve these Statutes, if they may be fined and imprisoned without Law, according to the discretion of the Commissioners, what have they done, that they, and they alone of all the people of this happy I land must be disinherited of their birthright, of their Inheritance. For prohibitions, writs of Habeas Corpus, writs of error are the birthright, the inheritance of the Subjects.  
And 'tis here worth your lordship's observation, that to those many prohibitions, which have been granted from above, for till of late, the court of York had not the courage to dispose prohibitions, nor indeed till our courts here, had not the courage to grant them. To was never known, that court pleaded the jurisdiction of their counsel, which without doubt they would have done upon the advantage of many great persons, in whose protection they have always been, had they not known the Law, could not be misinterpreted enough to allow it.  
Your Lordships remember the directions I mentioned of Magna Charta, that all proceedings shall be per legale Iudicium parium, & per legem terrae, now these Jurisdictions tell you, you shall proceed according to your discretion that is, you shall do what your please, only that we may not suspect this discretion will be gentler and kinder to us then the law: special provision is made no fine, no punishment shall be less than by the Law is appointed, by no means, but as much greater, as your discretion shall think fit; and indeed in this Improvement we find: Arbitrary courts are very pregnant, if the Law requires my good behaviour, this discretion makes me close Prisoner, if the Law sets me upon the Pillory, this discretion appoints me to leave my ears there.  
But this proceeding according to discretion is no new expression, 'twas in the first commission I told your Lordships of in the 31. Hen 8. that they should proceed secundum legem et consuetudinem Regni Angliae vel aliter secundum ●anas discretiones vestras, which in the interpretation of the Law, and that is the best interpretation, signifies the same thing, to proceed according to discretion, is to proceed according to Law, which is summa discretio, but not according to their private conceit or affection, For talis discretio (Says the Law) discretion●m confundit: and such a confusion hath this discretion in these Instructions produced, as if discretion were only removed from rage and fury, no inconvenience, no mischief, no disgrace, that the malice or insolence, or curiosity of these commissioners had a mind to bring upon that people, but through the latitude and power of this discretion the poor people have felt this discretion, hath been the quick sound which hath swallowed up their property, their liberty: I beseech your lordship's rescue them from this discretion.  
Besides, the charge that this Court is to his Majesty, which is near 1300. l. per annum, your Lordships will easily guess, what an unsupportable burden the many officers (whose places are of great value) the attorneys, clerks, Registers, and above 1000 solicitors that attend the Courts, must be to that people (insomuch) that in truth the whole country seems to be divided into the Officers and Dependants upon that Court: And the people upon whom these Officers of that Court prey and commit rapines, as he said in Patronius, Omnes hic aut captantur, aut captunt; aut cadavere quae laterentur, aut corni quae laterunt. Truly my Lords, these vexed worne-people of the North are not suitors to your Lordships, to regulate this Court, or to reform the judges of it, but for extripating these judges, and the utter abolishing this Court, they are of Cato's mind, who would not submit to Caesar for his life, saying, he would not be beholding to a Tyrant for injustice, for it was injustice in him to take upon him to save a man's life, over whom he had no power.  
So these Gentlemen desire not to be beholding to this Court hereafter for injustice. The very administration of injustice, founded upon such illegal principles being a grievance and oppression to the subject.  
First upon the whole matter the house of Commons is of opinion, that the Commission and Instructions whereby the Resident and counsel of the North, exercise a jurisdiction is illegal, both in the creation and execution.  
Secondly, that it is improfitable to his Majesty, for besides so much near thirteen hundred pound taken out of His majesty's revenues, every year His majesty loseth the great benefit would accrue to him upon writs and upon Fines, upon outlaws, and other profits, which redound to his majesty out of his Court here.  
And which I had almost forgot to tell your Lordships of, that his Majesty may be sure to have benefit from that Court (notable care is taken, by the fifty three Instructions, that if any money remains over and above all disbursements, it shall be bestowed in providing householdstuff, and furniture for the house, where the Lord President and counsel use to be.  
And lastly, that it is inconvenient and grievous to His majesty's subjects of those parts.  
And therefore they are humble suitors to your Lordships, and the house of commons, on this behalf, that since this people do and have in all matters of duty and affection contend with the best of His majesty's subjects, that they may not be distinguished from them in the manner of His majesty's justice and protection, since this court originally instituted and continued by his Majesty, for the ease and benefit of his subjects, is apparently inverted to the burden and discomfort of them that your Lordships will join with, the House of commons in beseeching His Majesty, that the present commission may be revoked, and no more such granted for the future.  
FINIS.