JOHN SELDEN, OF THE JUDICATURE IN Parliaments, A Posthumous TREATISE: WHEREIN, The Controversies and Precedents belonging to that Title, are Methodically handled.  
LONDON, Printed for Joseph Lawson Bookseller in the Bail of Lincoln; And Sold by the Booksellers in London.   

A Scheme of the Method and Contents.  

CHAP. I.  
PEers to render Judgement of Peers, pag. 1  
Qu. Whether the Spiritual Lords de jure are triable by their Peers, p. 4  
Touching the Nature of the Offences triable in this High Court. 6   

CHAP. II.  
In what Cases Judicature belongs to the Parliament, 8  
Of Judgement on Delinquents, 10  
§. I. 1. Their Accusation by the Commons, 11  
Four manner of Accusations in Parl. ib.  
Precedents of their Complaints.  
1. By Petition, 12  
2. By Demand, 16  
3. By Impeachment, 17  
§. II. 2. Accusation ex parte Domini Regis, p. 33  
Some Delinquents accused in Parliament upon Common Fame, without proof of Witnesses, 37  
The Judgement Repealed. 38  
No Peer can be Indicted in Parliament, 39  
He may be Indicted out of Parliament, and proceeded against in the next Parliament upon the said Indictment. 40  
§. III. Qu. Whether S. R. Ferrars (4 R. 2.) was Legally brought to his Answer in Parliam by Commandment of the D. of L. 44.  
Whether he being no Peer nor Baron, could be Legally Arraigned in Parliament by Information ex parte Regis, Ib.  
Question Resolved, 45  
How the Earl of Bristol's Cause could be heard in the House of Lords, notwithstanding (35 H. 8.) 46  
The Usage in such Cases and Precedents, 48  
Whether in a Trial before Lords and Commons, the Commons are to Sat with their Speaker? 54  
§. IV. Accusation ex Mandato Domini Regis. ib.  
The Earl of Northumberland's Case, 5 H. 4. ib.  
The Lords Impeach not any to themselves, because they are Judges, 63  
The Manner of proceeding against a Delinquent that absents, ib.  
§. V. Of Accusation by Complaint of private persons, 66  
The Fishmonger's Complaint against the Lord Chancellor, 7 R. 2. 72  
The Lord Chancellor his Defence, 74  
Of the Complaint against Bishop William's Lord Keeper, 80  
The History of the Appeal, 11 R. 2. 81  
The Lords proceed not against a Commoner, but upon the Complaint of the House of Commons, 84  
Appeals abolished, 1 H 4. c. 14. 87.   

CHAP. III.  
The Parties Answer. 89  
The Party accused to be brought to his Answer, 95  
An Answer required from the D. of Gloucester, to certain Accusations, though he were dead, and Judgement given upon him. 91  
Another Delinquent found guilty long after he was dead, 95  
In what Cases the Party is to answer as a Freeman, in what as a Prisoner, 97  
Things to be considered in the Answer. 97  
Variation from the Ancient Course, 100  
Touching Council allowed him, 102  
§. 2. When Council shall be allowed him, and when not, ib.  
In Misdemeanours the Party may have Council to Answer. 103  
But the Earl of Middlesex was denied it, 21 Jac. 103  
The Parliament hath compelled a present Answer in Misdemeanours, and without Council, 107  
The Mayor, etc. accused by the Scholars of Cambridge, ib.  
§. 3. The Replication, 109  
Where the Articles against the Delinquent are ex parte Regis, there the Commons do not reply, nor demand Judgement, ib.  
Impeachment of the Lord Latimer, 111  
William Ellis Impeached, 114  
Lord Nevile Impeached by the Commons, ib.   

CHAP. IU.  
The Proof.  
By Examination of Witnesses, 120  
Witnesses produced by the Commons, ib.  
A Committee for Trial of Alice Pierce, 123  
A Jury in Parliament for Misdemeanours, 125  
G. D. of Clarence Arraigned, 127   

CHAP. V.  
The Judgement, 132  
§. 1. It belongeth to the Lords only, 133  
The Commons have no Right to it, ib.  
§. 2. In what Cases the King's Assent is necessarily required, 136  
Necessary in Capital Judgement, 143  
In Judgement on Misdemeanours the King's Assent is not required, 144  
§. 3. The King's Presence in Parliament, 39  
§. 4. The Presence of the Lords Spir. ib.  
In Cases of 

Misdemeanour, off ib.  
Capital, neg. ib.    
The Protestation of the Bishops for ever, 150  
Whether they can be present & not Vote, 152  
A Bishop being Lord Chancellor, was present at the giving Sentence in Case of Treason. 156  
§. 5. Of the Presence of the Commons in Cases Capital, 158  
The Precedents, 149  
Their Presence not necessary unless when they impeach, 160  
Whether they Sat if they are present, 161  
Of the Presence of the Judges, 162  
§. 6. The manner how the Lords resolve on their Judgement, 167  
Whether it be ultra Legem, 168  
Judgements for satisfaction, 173  
References to the Common Law, 175  
By whom to be demanded, 176  
By whom to be rendered, ib.   

CHAP. VI  
The Precedents for Life and Death, 178   

CHAP. VII.  
The Execution of the Judgement, 182  
In Capital Offences,  
In Misdemeanours.   

CHAP. VIII.  
The Recovery of Damages, or Restitution to the Party aggrieved. 187.    

JUDICATURE IN Parliament,  

CHAP. I.  
Peers to render Judgement on Peers.  
THE Execution of all our Laws hath been long since distributed by Parliament out of inferior Courts, in such sort as the Subjects were directed where to complain, and the Justice how to redress wrongs and punish offences: And this may be the reason of the Judge's opinion in Thorps' Case, 31. Hen. 6. Num. 37.  
That Actions at Common-Law are not determined in this High Court of Parliament, yet complaints have ever been received in Parliaments as well of private wrongs as public offences. And according to the quality of the Person, and nature of the offence, they have been retained or referred to the Common-Law.  
Touching the quality of the Person the Lords of the Parliament did not anciently try any Offenders how great soever the offence was, unless he were their Peer. As by that of 4 E. 3. N. 2. where when the King commanded the Lords to give Judgement on Simon de Bereford, and divers others also, who were not their Peers, for the murder of E. 2. and the destruction of the Earl of Kent, Son of E. the first. A proviso and agreement was made and recorded in these words, Et est assensu & accord, etc. And it is assented and accorded by our Lord the King, and all the Grandees in full Parliament. That albeit the Peers as Judges of the Parliament have took upon them, and rendered the said Judgement, 
Peers to render Judgement on Peers.  etc. That yet the said Peers who now are, or shall be in time to come be not bound or charged to render Judgements upon others than Peers. Nor that the Peers of the Land have power to do this, but thereof ever to be discharged and acquitted; And that the aforesaid Judgement rendered be not drawn to example or consequence in time to come, whereby the said Peers shall do contrary to the Laws of the Land if the like Case happen, which God forbid. 4 E 3. N. 6. This Proviso and agreement was made by the Lords and Commons, and it had these respects. First to satisfy the Commons, that the Lords by these Judgements intended not to alter the course of the Common-Law, and therefore they disclaimed that they had power to do this, 
Quite contrary to the Law of the Land.  and confess it was contrary to the Law of the Land.  
Secondly to preserve their own Right, to Judge none but the Peers, in Case of Life and Death. For then the King's Steward is to sit in the Chancellor's place and the Lords are to be Tryers and Judges: And so by judging others then their Peers descended below their degrees, For none but Peers are so to be Tried and Judged. It is otherwise in Cases of misdemeanours, than the Chancellor keeps his Place, and the Lords are only Judges and not Tryers, they may command a Jury to be Impanelled.  
For Trial of the Facts, if the truth appear not by the Parties answer, the Testimonies are Exhibited as 1 R. 2. in the Case of Alice Peirce. Here ariseth a Question.  

Whether the Spiritual Lords de Jure, 
How Bishops are tryable.  are tryable by their Peers or no?  
Out of Parliament they are not to be Tried by the Peers; But the doubt is, whether in time of Parliament they are to be so Tried or no? To me it seems they may, if the matter be moved against them in time of Parliament. For as it is in the Parliament at York, 15 E. 2. in the Act for the Repeal of the Spencers banishment, they are Peers in Parliament. Note, that the Petition for the Repeal saith that the Bishops are Peers in Parliament. The Bishop's name themselves Peers of the Land: And the Chancellor to the King. And the Act style them Peers of the Land in Parliament.  
There be divers Precedents also of the Trial of Bishops by their Peers in Parliament, as well for Capital offences as misdemeanours, whereof they have been accused in Parliament. As the Archbishop of Canterbury, 15 E. 3. N. 6, 7, 8. Et ibid. postea, 44 & 39 Et ibid. 17 E. 3. 22. And the Bishop of Norwich. 7. R. 2. for misdemeanours: So were the Bishops of York and Chichester, Tried for Treason by their Peers in Parliament, upon the Appeal of the Lords Appellants, 11 R. 2.  
Anno 21 R. 2. The Commons accused the Archbishop of Canterbury of Treason, and the temporal Lords judged him a Traitor, and banished him: But if the Bishop be accused out of Parliament, he is to be tried by an Ordinary Jury of Freeholders'; for his honour is not inheritable, as is the temporal Peers out of Parliament, save that only of their Trial. As no day of Grace to be granted against them in any Suit. A Knight to be returned upon the Panel where a Bishop is party, and no Process in a civil action to be awarded against his body, and the like. And by this it appeareth what Persons are de Jure, tryable by the Lords in Parliament, viz. their Peers only.   

Touching the nature of the Offence. 
The nature of the offence.   
Herein the complaint and accusation as well of the Party delinquent as offence is to be considered. For upon the Information of the King at his Commandment, or upon complaint of private Persons, the Lords may not by the Law try any but their Peers for Capital offences. And the Lords have ever referred offences of other nature complained of by private Persons to the Common-Law, if there be remedy, unless some special cause appear fit for their own Judgement.  
But upon complaints and accusations of the Commons, the Lords may proceed in Judgement against the Delinquent of what degree soever, and what nature soever the offence be. For where the Commons complain, the Lords do not assume to themselves trial at Common-Law. Neither do the Lords at the trial of a Common Impeachment by the Commons, decedere de jure suo: For the Commons are then in stead of a Jury, and the Parties answer, and examination of witnesses, are to be in their Presence, or they to have Copies thereof: And the Judgement is not to be given but upon their demand, which is in stead of a verdict, so the Lords do only judge not try the Delinquent. In the Lords proceedings in Judicature is observed also a certain form, which varieth according to the nature of the complaint, and the matter complained of; so that no general Rules can be given therein, though many Judgements have been reversed for errors, whereof there be many Precedents. And the Execution upon life and death, hath been stayed at the Request of the Commons, the proceedings being illegal, whereof I have seen only one Precedent, touching the Duke of Clarence, tempore E. 4. Wherefore for our better understanding of the Form of Judicature, let us first consider the several causes wherein Judicature belongs to the Parliament, and then the ancient way of proceedings in each Cause.    

CHAP. II.  
In what Cases Judicature belongs to the Parliament. 
In whnt Cases, etc.   
JUdicature belongs to the Parliament in these six Cases.  
1. In Judgements against Delinquents as well for Capital crimes as misdemeanours, wherein is to be considered, 

1. The Accusation.  
2. The Parties Answer.  
3. The Replication.  
4. The proof by Examination of witnesses, or otherwise.  
5. The Judgement.  
6. The Execution.    
2. In the Reversing erroneous Judgements in Parliament are to be considered, 

1. The Petition.  
2. The bringing in the Record.  
3. The Assignment of Errors.  
4. The Reversal thereof.    
3. In the Reversing of erroneous Judgements given in the King's Bench are to be considered 

1. The Petition.  
2. The Writ of Error.  
3. The bringing in the Record.  
4. The Assignment of Errors.  
5. The Writ of Scire facias.  
6. The Defendants answer.  
7. The Reversal of the Judgement.    
4. In deciding of Suits long depending either for difficulty or delay, wherein is to be considered 

1. The Petition.  
2. The advice with the Judges.  
3. The determination of the Lords.    
5. In hearing complaints of particular Persons on Petitions, wherein is to be considered, 

1. The Petition.  
2. The Defendants answer.  
3. The Proof.  
4. The Orders of the Lords.    
6. In setting at Liberty any of their own Members or Servants imprisoned, and in staying the proceedings at the Common-Law during the Privilege of Parliament, wherein consider, 

1. The Quality of the Person Imprisoned.  
2. The Parties Answer at whose Suit he is imprisoned.  
3. The manner of his Charge.    
In certifying the Elections and Returns of Knights and Citizens for the Parliament. But now the Commons alone determine of this: Wherefore I will only show that the Commons did heretofore Petition to the Lords for redress herein, and what course was then taken. I leave it to the Clerk of that House to show how the Commons proceed herein at this day. Of the rest in Order; And first,  

Of Judgements on Delinquents.  
§ 1. In Judgement against Delinquents, 
Of Judgements on Delinquents.  is first to be considered, the Accusation. For as in the King's Bench the Justices proceed not to the Arraignment of any Offender without an Indictment, So the Lords have not proceeded to Judgement, unless the Crimes have first been presented to them by way of Accusation: If otherwise their Judgements have been reputed erroneous, as that against the Spencers was in 15 E. 2. Rot. 2. claus. lit. penden. For the same Persons cannot be both Accusers and Judges.  
I have observed four manner of Accusations in Parliament. 
Four manner of Accusations in Parliament.   

1. First by the Commons, either by their Complaints, or their Impeachments.  
2. Secondly by Information. Ex. part. Dom. Regis.  
3. Thirdly by Complaint of private Persons.  
4. Fourthly by Appeal of some of the Lords in Parliament, which was abolished, p. Stat. 1. H. 4. c. 14.   

The Accusation of the Commons.  
The manner of Accusation ought to be by the Commons alone, and not by the Lords and them together, for so, Earls, Prelates, Barons, and other Peers of the Land, and Commons of the Realm, did accuse Hugh de le Spencer, 15 E. 2. and one of the Errors assigned for the Reversal was, that the Lords had no Record before them of the Causes contained in their Award, vis. Rot. claus. 15 E. 3. in the Parliament at York. The Reasons may be, because the Lords joining in the Accusation with the Commons, have declared their opinion of the Fact, and there needs no further Trial thereof. Wherefore the Lords who are only Judges may neither accuse any to themselves, nor join in the Accusations with others.  
The complaint of the Commons is either by Petition or demand in general, or by Impeachment in particular which is their Declaration against the party accused.   

Precedents of their Complaints by Petition are. 
Complaints by Petitions.   
Anno 21 E. 3. n. 38. The Commons complain of Extortion used by certain Merchants, who were Farmers of the King's Customs of Wools, not naming the Parties, for which they pray remedy and that the said Merchants may be put to their answer in this Parliament for such outrage and distress done to the people. Which Petition is thus answered.  
Let the Merchants be called into the Parliament, Et oient lour Respons, In codem Parl. n. 49. The Commons in another Petition complain: 
Petition.  That whereas divers aids have been granted to the King for his Wars, certain Merchants by confederacy between them, and in manner of usury have bargained for the same, to the King's great loss, and the grievance of the Commons, etc. His people pray these Particulars may be examined, in presence of some by the said Commons deputed by good wise and Loyal men during the Parliament.  
The King shall assign some of the Sages of his Council to hear, 
Respons.  and determine the things contained in this Article. And if any of the Commons can inform the King, for his profit of any of the Points herein contained, let him put it in certain, and he shall be heard, to the end that Right and reason may be done.  
And the Justices which shall be assigned to inquire of false Money, shall have power to inquire of the excess of such Ministers. Though these complaints were general, yet they pointed so directly to the Parties accused, that John de Worsenham, and Walter de Chairton, did exhibit their Petitions also in their own defence, desiring to come to their Answers. What further proceedings were herein is not recorded; The Commons were directed to impeach the Parties whom they accused. If any of the Commons can inform, etc. Let him inform in certain, and he shall be heard, etc. So that although the Commons accusation by complaint be general, yet if the complaint be received, and the Parties brought to answer, the Commons may then impeach the said Parties, viz. declare against them in special; and then the Suit is theirs, prout. Anno 50 E. 3. against Lions, Ellis, the Lord Latimer, the Lord Nevile, Peecher and others.  
But if the Commons do only accuse by any way of complaint whatsoever, and do not declare in special against the Party accused, than the Suit is the Kings, and the Party is to be arraigned, or otherwise proceeded against by commandment, Ex parte Dom. Regis, prout Gomeniz Weston, and Alice Peirce. 1 R. 2.  
Anno 1 H. 4. The Commons pray the Lords Apellants in the 21 R. 2. may be put to their answer, and so they were 10 Placit. Coron. of that Parl. n. 1. 2. 3. etc.  
Anno 29 H. 6. The Commons pray that the Duke of Somerset, the Duchess of Suffolk, the Bishop of London, and many others may be abandoned from the King's Presence during their lives, and not come within twelve Miles of the Court, for that the people spoke evil of them.  
The King of his own mere motion is contented that all shall depart, 
Answer.  unless they be Lords, and a few of them whom he may not spare from his presence, and so to continue one year, to see if any man can misprove them. n. 6. inter Petitiones Communium. For this was no Accusation, for the Commons did not require they might be banished the Court.  
Anno 38 H. 6. The Commons among their Petitions accuse the Lord Stanley of sundry Particulars, as to be of confederacy with the Duke of York, and pray he may be committed to Prison.   

The King will be advised. 
Answer.   
Primo. Jac. 26 Maii. The Commons by message accuse the Bishop of London, for words spoken of them in the upper House. Of the other kind of complaint by way of demand, I have seen these two Precedents only.  
Anno 1 R. 2. The Subsidy to be treated upon between the Lords and Commons, as the manner than was; The Commons delivered to the Lords a Schedule of their demands to be dispatched before Treaty should proceed. Amongst which one was, That all such who without Cause have lost or given up any Castle, Town, or Fortress, to the dishonour of the King, and damage of the People, may be put to their Answer before the Lords and Commons in this present Parliament.  
The Complaint herein is general, They accuse such as had delivered up Castles, etc. if it be an Accusation: But they name not the Parties, yet two Delinquents hereupon who were Imprisoned in the Tower, for delivery of Castles, etc. were put to their Answer, viz. Gomeniz and Weston, Anno 7 R. 2. The Commons grant a Subsidy, according to the Tenor of a Schedule indented delivered in Parliament, requiring it may be enroled in the Parliament Roll verbatim; in which Schedule is this Protestation, That it is not their meaning to grant the said Subsidy, without the Conditions ensuing.  
Inprimis, That the Clergy make the like Grant.  
Item, That the Bishop of Norwich, and others, be compelled to answer such Sums, as they have received for Service by them undertaken, and not performed, etc. Numb. 13.  
Here the Commons name one of the Parties, against whom they complain, but they impeach him not; and yet he, and divers others, were censured on that general demand.  
Of the Impeachments of the Commons, 
Impeachments of the Commons.  there be these Precedents: Anno 50. E. 3. The Commons having granted the Subsidy, they protested their good will, and firm purpose, to aid the King; and said, That it seemed to them for truth, that if the King had always about him Loyal Subjects, good Councillors, and faithful Officers, he had been rich in Treasure, and needed not have charged his Commons with Subsidies, etc. Then they desired that three things might be enquired of.  
1. First, the withdrawing the Staple from Calais, by the Council and Procurement of some Privy Councillors about the King.  
2. Secondly, of Loans to the King by way of Usury, receiving again greater Sums than they disbursed, wherein some Privy Councillors have been Partners.  
3. Thirdly, of buying the King's Debts by way of Bargain, some for the 10th Penny, some for the 20th, or 100th Penny, and procuring the King to pay the entire Debt; to the King's loss, and profit of some Privy Councillors, and others of their Covyn: Of which three Articles, and their Dependencies, the Commons said, They would make farther Declaration in special, whensoever it shall please the King to hear them, Numb. 15, 16. Then follows their particular Impeachments and Accusations.   

First, Richard Lions, Merchant of London, is impeached and accused by the Commons of many Deceits, Extortions, and many other ill deeds by him done to our Lord the King, and his People, as well during the time he was retaining to the King's House, and to the King's Council, as otherwise, whilst he was Farmer of the Subsidy and Customs of the King. And in special of this, that the said Richard, by Covyn made between him, and some of the Privy-Council of our Lord the King, for their private Profit and Advantage, hath procured many Patents, and Writs of Licence, to transport great quantities of Wools, and Woolfells, and other Merchandise beyond the Seas, to other places than the Staple at Calais, contrary to the Ordinances, etc. And so they declare of many other Villainies in great deceit of the King, and of his Court. Whereunto the said Richard being then present in Parliament, said, etc.  
Then follows his Answer in particular to what was particularly alleged against him, and in general to what was generally charged upon him.  
The Lords reassured him for that which was particularly objected against him, and granted Commissions to inquire of the Extortions wherewith he was charged in general.  
Then the Commissioners in like manner accused and impeached William Lord Latimer of divers Extortions, Grievances, Deceits, and ill Deeds, viz. of divers Oppressions, when he served the King in Britain, for being Partner with Richard Lions, etc. and for loss of Towns and Forts beyond the Seas. Numb. 21.  
Item, William Ellis of Great Tarmouth was impeached in this present Parliament in divers manners.  
First, by Surmise of the Commons, etc. Numb. 11.  
And afterwards John Botheil, and William Cooper, exhibited their two Bills in form which followeth:  
To their thrice redoubted Lord the King, and to the said Council shown, etc. complaining of the Oppressions of the said William Ellis, unto them, and others, etc. and their Oath was taken against him. Numb. 32.  
Item, John Peecher of London, Merchant, was accused and impeached by the said Commons, That he, by the assent and aid of Richard Lions, and of other Privy Councillors, for their private profit and advantage, have purchased a Patent under the Great Seal of our Lord the King, containing that none shall sell sweet Wines within the Francheses' of the City of London, but only the said John. Numb. 38.  
Item, John Nevil was likewise impeached, etc. for buying the King's Debts, etc. and for loss of Towns beyond the Seas.  
Here I observe, that though the Commons complained, 
Observe.  50 E. 3. but of three Grievances, viz. of the withdrawing the Staple from Calais; of Loans to the King upon excessive Usury; and of buying the King's Debts; yet when they who were accused appeared, they declared against them for other matters also: As against Lions, for new Impositions upon Wools, without assent in Parliament; and against the Lord Latimer, for his misgovernment beyond the Seas, and loss of Forts there; and against Peecher, for a Monopoly of sweet Wines, etc.  
I observe also, 
Observe.  that their Declaration is not made according to the strict forms of Law, as you may perceive by that against Lions, wherein so many Extortions are so generally set down against him, that he made no answer to them, neither could, etc. Which Impeachment the Lords notwithstanding did not reject, but supplied the defects thereof, by granting Commissions to inquire thereof. Ibid. Numb. 20. in fine.  
Item, In this Parliament of 50 E. 3. an Ordinance was made against Woman's pursuing businesses in the King's Court, and especially against Alice Peirce, Numb. 45. I find no Accusation against Alice Peirce; I only conjecture that the Commons complained of her, though it be not entered, for she is in the number of them whom in the next Parliament of 50 E. 3. Numb. 87. the Speaker of the Commons names to be unjustly convicted in this Parliament: And none were there convicted, but those whom the Commons complained of.  
Item, Adam de Bury, Citizen of London, was impeached by the Clamour of the Commons in this Parliament of many Deceits, and other ill things done to the King, and to his People, whilst he was Mayor of Calais, and Captain of Bullingam, and other ways, as more at large appears in one great Bill, delivered in Parliament the last day of this Parliament at Eltham. And thereupon the said Adam was sent for to come to answer in Parliament, and he came not, neither could be found. Wherefore it was awarded, that all his Goods and Chattels should be put in Arrest; and so it was done by Writs sent to the Sheriffs of London and Kent: And the said Bill is on File with the special Petitions of Parliament, 50 E. 3. Numb. 11.  
Out of this last Precedent, concerning Adam de Bury, I observe two things:  
1. First, whom they complained of: The Lords sent for him only to appear before them; they sent not to apprehend him as a Delinquent, until he contemned their Demand, whereof more hereafter in the Title of the Parties Answer.  
2. Secondly, that the Commons delivered not their Impeachment (that is, their Declaration) against the Party accused, until he appeared before the Lords, and then they kept it until the last day of the Parliament, in hope that he would be brought before the Lords; and when they saw he could not be found, they then delivered their Impeachment against him, to the end (as I concieve) the particulars of their Accusation might remain upon Record against them hereafter.  
Here I also observe an Error of the Clerk, that he hath omitted the Proceedings against Alice Peirce, John de Leycester, and Walter Spooner, who were all convicted in this Parliament, as appeareth by the Speaker's motion to the King for their Pardons in the next Parliament. 50 E. 3. Numb. 87.  
Thus much touching the Commons Accusations and Impeachments.  
The next Precedent is in 11 R. 2. in which Parliament the whole Commons with one assent assembled, came before the King, Prelates, and Lords, in the Parliament Chamber, complaining grievously of Michael de la Poole, Earl of Suffolk, Chancellor of England, there present, accusing him openly by word of Mouth:  
1. First, that whereas he being Chancellor, was bound by Oath to further the King's Profit and Commodity in all things: He notwithstanding contrary to the said Oath, and not regarding the King's great necessity, had purchased of the King Lands and Tenements to a great value, procuring the same, by reason of his Office, to be Surveyed at an under value.  
2. Item, Whereas at the last Parliament, nine Lords were appointed to see and examine the State of the King and Realm; which being done, and their Advice delivered to the King, as well by word as writing, by what means the same might best be remedied: The Chancellor promised in open Parliament, that the same should be put in Execution, which was not done, through his default, he being a Principal Officer.  
3. Item, Whereas the Subsidy, granted the last Parliament, was appointed by the assent of the King and Lords, in what sort it should be expended, and not other ways employed; in this was his default, he being Principal Officer.  
4. Item, Whereas John Tidman had a certain Annuity from E. 3. which he had since forfeited, and the payment thereof was discontinued for the space of 20 or 30 years: The said Chancellor knowing this, purchased his Interest, and procured the King to confirm the same unto him, etc.  
5. Item, That whereas the great Master of St. Antony being a Schismatic, had thereby forfeited to the King all his Revenue within this Realm, the same Chancellor had taken the same to Farm of the King for 20 Marks. And whereas the Master should have livery thereof again, he could in no wise get the same, until he had bound himself to pay 100 l. yearly to the Chancellor and his Son.  
6. Item, That during the time of his Chancellorship, there had passed divers Charters of Pardon, as well for Murders, Treasons, and Felonies, as also for rasing of Rolls, and imbezelling of Laws and Records; and especially since the beginning of this Parliament, a Charter of Franchises was granted to the Castle of Dover, to the disinheritance of the Crown, and to the Subversion of all the Places and Courts of the King, and his Laws.  
7. Item, That at the last Parliament divers Sums were allotted for the defence of the Town of Gant, notwithstanding the same Money was lost, etc. by his default, etc.  
Of all which Articles, the Commons demand Judgement of the Parliament, etc.  
I have been long upon this, considering all the Precedents follow at large. These are the most formally set down of all the Accusations hitherto of the Commons, yet most of these are very general and uncertain: Howbeit the Chancellor took no exceptions to the insufficiency thereof, but answered to every particular.  
The next Accusation of the Commons is 11 R. 2. in the 21. of the King, they accused divers of those whom the Lords had first appealed; whereof, when we speak of all Appeals. Anno 21 R. 2. the Commons accused and impeached of Treason the Archbishop of Canterbury, Numb. 15. and demanded Judgement against him, and had it. Numb. 16.  
Eodem Parl. 
Mortymer and Cobham.  The Commons accused and impeached of Treason Tho. Mortymer, and John de Cobham, a Baron of Parliament, and had Judgement against them both.  
Anno 28 H. 6. William de la Pool, 
William de la Pool Duke of Suffolk, impeached.  Earl Marshal, and Duke of Suffolk, was accused and impeached by the Commons in manner following, viz. The Duke being the great Favourite of the King and Queen, the common People laid all the fault of the evil Government on him, and made Ballads thereof, (which I have seen) taxing his Loyalty to the King.  
The Parliament of 28 H. 6. begun the 6th of November, and held to the 6th of December, and was then Prorogued to the 22th of January.  
The Duke of Suffolk, whether provoked by the Ballads then made on him, or by some Speech in the House of Commons, whereof nothing is recorded, did require of the King that he might be specially accused, and be heard to answer, for that many reported him to be an untrue man; and he made a solemn Protestation of his Loyalty, wherein he showeth, that his Father, and three of his Brethren, died in the Service of the King, and of his Father and Grandfather. That he himself had served 34 years in the Wars, being then but a Knight. That he had been taken Prisoner, and paid 20000 Marks for his Ransom. That he had been 30 years of the Order of the Garter; Chancellor to the King 15 years; and had been 17 years in the King's Wars, without returning home. And he prayed God so to pardon him, as he had been true to the King; and required his Purgation. Numb. 14, 15.  
Whether this was sent to the Commons, or what notice they had of it, appears not; but on the 2th of January, the Commons required the Duke might be committed to Ward for his own Confession, for that, as I concieve, he himself confessed, 
General Fame.  That the general Fame went of him: And the Lords, on Consultation of the Justices, thought the same to be no good Cause of Commitment, unless some special Matters were objected against him. Numb. 16.  
On the 28th of January, the Speaker declared to the Lords, how the Duke of Suffolk, as it was said, had sold this Realm to the French, who prepared to come hither. And that the said Duke, for his own defence, had furnished Wallingford Castle with all Warlike Munition. And then on request, the Duke was committed to the Tower.  
On the 7th of February, the Chancellor, and some other Lords, were sent by the King to the Commons, (a thing not usual) but wherefore they were sent is not expressed, happily to be informed what they could say against the Duke, or to reconcile the business. But the Commons delivered to this Chancellor, and those other Lords, a Bill of Articles against the Duke, wherein they accused him of divers Treasons, viz. For intending to marry his Son to the Heir of the Duke of Somerset, and thereby for want of Issue of the King, to claim the Crown. For practising with the French, etc. Numb. 18, 19 and they require Prosecution against him. Numb. 17.  
March 19 The Commons delivered another Bill of less Offences against him, Numb. 28, 29, 30, etc. requiring those Articles also to be enrolled, and the Duke put to his answer.  
These before recited are all the ancient Precedents I find recorded; the following are of later times.  
Anno 1 Jac. The Commons accused and impeached by word of Mouth Sir Giles Mompesson, and Sir Fr. Michael, Knights; for many Oppressions done to the People: They impeached them to the Lords at a Conference, and afterwards delivered their Declaration against them.  
First, Concerning a Patent for Inns and Osteries.  
Secondly, A Monopoly for Gold and Silver Thread.  
Thirdly, Concerning a Patent of Concealments.  
Eodem Parl. 
Lord Visc. St. Alban, Chancellor, accused, who was Sir Francis Bacon.  They accused Francis Lord Viscount St. Alban (at a Conference) of Bribery, and Corruption, in his Office of Chancellor. They delivered no Writing, but a Committee of the Lords having considered the Proofs, and drawn up the Particulars in form of a Charge, they were sent to the Lord Chancellor, and his answer required to each particular.  
In the same manner in the same Parliament, they accused John Bennet, Judge of the Prerogative Court, of Bribery and Corruption in his Office.  
In the same manner they accused and impeached Lyonel Earl of Middlesex, and Lord Treasurer of England, of Bribery and Extortion, and Impositions on French Wines and Grocery, which being reported to the House, a Committee was appointed to consider of the Commons complaint, and also of a Committee, who had reported to the House a great want of Powder in the Stores, through the Lord Treasurer's negligence.  
A Committee appointed to consider thereof, did, after many Examinations taken, draw up out of the whole Complaint of the Commons, a Charge against him; as also out of the Report of the Committee for Munition touching the want of Powder; and of a Complaint made to the House by Sir Thomas Dallison, and of some Misdemeanours whereof they are informed in the great Wardrobe, and Court of Wards: Which Charge the House sent unto the Treasurer, and required his Answer. 21 Jac.  
In eodem Parl. 21 Jac. The Commons at a Conference, accused and impeached by word of Mouth the Bishop of Norwich of some Misdemeanours, which being reported to the House, the said Bishop made a present Answer thereunto, as it was.  
In the Parliament 1 Car. 1. Febr. 6. The Commons at a Conference accused and impeached George Duke of Buckingham, of many Misdemeanours, and delivered their Declaration in Writing, that the said Duke might be put to his Answer.    

§ 2. The second manner of Accusation is Ex parte Domini Regis, 
Accusation Ex parte Domini Regis.  which is threefold.  
The two first are immediately from the King, and the third from the Commandment of the Lords, by a formal Information exhibited in Parliament by the King's Attorney, or Council learned, as was that of E. 3. against Roger Mortimer Earl of March, and divers others; and 4 R. 2. against Sir Ralph Ferrer, Kt; and 1 Car. 1. against the Earl of Bristol.  
By the King's Commandment, either upon the Petition of the Delinquent, and upon the return and view of any the Proceedings taken elsewhere, as against the Earl of Northumberland, and Lord Bardolph, upon former Proceedings against them in the Court of Chancery. And 2 H. 6. upon request of the Commons against Sir John Mortimer, Knight, indicted in London. In these Cases no Articles are exhibited Ex parte Domini Regis, as in the former.  
By Articles exhibited Ex parte Domini Regis, Ex parte Dominorum against such as the Complaint is made upon in general by the Commons, prout 1 R. 2. against Gomeniz, Weston, and Alice Peirce; 7 R. 2. against the Bishop of Norwich, and divers others. Which Articles, though drawn and exhibited Per mandatum Dominorum, yet were the Parties charged therewith Ex parte Domini Regis.   

Of Accusation by Information Ex parte Domini Regis.  
In Rot. claus. 4 E. 3. There is a Proclamation of the death of Edmond Earl of Kent, 
Of Accusation by Information Ex parte Domini Regis.  where it is said, certain Letters of his containing Treason, were showed to the King; wherefore he was Arrested, and freely acknowledged the same before the Earls, Barons, and other Grandees and Nobles of the Realm, in the Parliament at Winchester, 4 E. 3.  
Here appears plainly, that Articles of Treason are exhibited in Parliament against the Earl of Kent.  
In the next Parliament in the same year, Edmond, Son and Heir of the said Edmond, exhibited his Petition, praying the King, that the Record and Process whereupon the said Earl was put to death, might be brought before him in Parliament, and if Errors be found, that Right be done. Numb. 11. The which being read before the King, Prelates, Earls, Barons, and other Grandees in the said Parliament, the King by his Royal Power and Dignity by assent in Parlialiament, repealed the said Judgement. Numb. 12.  
Note, That in this Repeal no Error was alleged, nor any Exceptions taken for this, that the Lords proceeded upon the Articles only, which were objected against him the said Earl.  

This is out of the Close Roll.  
The first Precedents recorded in our Parliament Rolls of Accusations in this kind, are these of 4 E. 3. in the Parliament at Westminster, which are added at large amongst divers others, at the end of this Discourse, the effect whereof doth follow, viz. These are the Treasons, Felonies, and ill Deeds done to our Lord the King, and to his People, by Roger de Mortimer, and others of his Covin, reciting them all, and concludeth thus: Whereas our Lord the King doth charge you the Earls, Barons, and other Peers of this Realm, that for as much as these things touch him principally, and you, and all the People of this Realm, That you do unto the said Roger right and lawful Judgement, as is fit for such an one to have who is very guilty of all the crimes above written, for that he believed the said things are notorious, and known for truth unto you, and to all the People of the Realm, Numb. 1.   

The followeth the Judgement against him.  
Item, In the said manner our Lord the King charged the said Earls, Barons, and Peers, to give right and lawful Judgement on Simon de Bereford Knight, who was aiding and counselling unto the said Roger de Mortimer in all treasons and ill deeds, for which the said Roger was so awarded, and done to death, as the thing that is known, and notorious to the said Peers, as the King believeth.   

Then followeth the Judgement against him also.  
Then followeth the Judgement against John Matrevers, Thomas de Gurney, and William de Ogle, Numb. 5. But no particular accusations are recorded against any of them, unless they were comprised in those general words of that against Mortimer, viz. And other of his Coyn. For some of the same Crimes are mentioned in the Judgements, yet no doubt but the King's Attourny did exhibit Articles against every of them, upon which the Lords proceeded to Judgement. Here I do ingenuously confess my own Error, when I said that this Judgement against Roger de Mortimer was afterwards reversed; for that he was put to death without any Accusation, which I conceived to be so upon first view of the Repeal thereof.  
Anno 21. E. 3. Numb. 10. Where the Petitioners Roger de Mortimer, the Grandchild assigneth for that the said Earl was put to death, and he disinhereted: Sans Accusament, Et sans estre masone in Judgement ou en Respons.  
By which words (sans accusament) I gave you to understand that the Articles were no accusation, whereas now upon better Consideration I do find that these words do intend no accusation by witnesses or otherwise to prove the said Articles objected against him. For these Articles are a legal accusation in Parliament, and frequently used, as appears by many Precedents of the like nature. But there was no other proof offered by the Lords to prove the same, then that the King believeth them, and that they are notorious and known for truth unto the Lords, and all the People of the Realm.  
And the Lords also having examined these Articles, said all these things contained therein are notorious and known. They speak not a word of any one witness examined, or any other proof than the common fame: For this Cause and for that the said Earl was not brought to Judgement nor to answer, but condemned unseen and unheard upon common Fame only without any legal Proof, The whole Parliament did very justly Repeal the said Judgement and Record, 
The Judgement, defective in all points.  declaring it to be erroneous and defective in all points. And the Lords were willing to damn the whole Record in all points, lest haply it might be alleged against themselves another time for Precedent.  
Anno 15. E. 2. The Lords and Commons joined in the Accusations against the Spencers, and for that the Lords had no Record in their own pursuit upon the Cause contained in their award, and they ought not to be their own Judges, etc. having been Accusors' no exceptions were taken to the Articles but other Errors assigned, quod vide where it is said to be sans Accusament, so that they repealed it not for that there was no Accusation but for that he was not brought to his Answer.  
Again, That those words Sans accusament should simply signify no Accusation, is only the Averment of the Petition. The Judgement doth not say, that there was no accusation, but that it was erroneous in all points. And so it was, no proof being produced but common Fame to prove the Answer. And this first error bred a second. I do not well understand the meaning of these words (Sans accusament.) That a Peer ought to be Indicted for Capital offences in Parliament. But having perused all the Judgements I do not find any one Peer indicted in Parliament. In 11. R. 2. Numb. 7. All the Lords Spiritual and Temporal claimed as their liberty and franchise, that the great matters moved in this Parliament, and to be moved in other Parliaments in time to come touching the Peers of the Land, aught to be admeasured adjudged and discussed by the course of the Parliament, and not by the Civil-Law, nor by the Law of the Land, used in the more base Courts of the Realm, which the King granted in full Parliament, eodem Anno Rot. Appeal 290.  
This is said to be their ancient custom, viz. To be adjudged according to the use of the Parliament only.  
Then no Peer can be indicted in Parliament, for that it is contrary to the use of Parliament. Let this suffice for the confession and rectifying mine own former Error herein.  
But a Lord of Parliament may be indicted out of Parliament, and by the Kings command proceeded against in the next Parliament, upon the same indictment as in these Subsequent.  
In the same Parliament, 
The Lord Berkley arraigned waved his Peerage.  the Lord Berkley was arraigned, for the death of Ed. 2. and whether out of his humility or otherwise, he waved his Peerage, and put himself on the Trial of his Country. the Articles against him though not expressed, but by the Inference out of his Arraignment are for the murder of King Ed. 2. at Berkley Castle in the County of Gloucester, unto which he answered, that he was then sick at Bradley in Worcestershire, and pleaded not guilty of the death of the said King, Et de hoc de bono & malo ponit se super Patriam: The Precedent shall hereafter be added at large.   

It begins thus.  
Placita Coronae tenta coram Dom. Rege, Ed. 3. post conquestum Angliae in pleno Parliamento suo predicto. Et allocutus de hoc quod cum Dominus, Edwardus nuper Rex Angliae Pater Dom. Regis nunc, in custodiam Thomae & cujusdam Johannis Matrevers extitit deliberatus, ad salvo custodiendum Castro ipsius Thomae de Berkley in Com. Gloucester, & in eodem Castro in custodia ipsorum murderatus extitit, & interfectus, qualiter se velit de morte ipsius Regis acquietare: dicit, etc. Numb. 16.   

Then follows his Answer.  
Here the cause why the Lord Berkley was tried is mentioned, but the Articles objected against him, and by whom he was accused, who questioned him, whether the Chancellor or Steward of England, or who else; All these circumstances are omitted. It appears not I say in what manner this crime of the Lord Berkley was presented to the Lords, whether by the former general Information against Mortimer, & autres de la Covyn, or by some such Particular Information against him alone, which I rather believe.  
Some such Information there must be of necessity, else how could he be questioned for his crime in Parliament? But here it appeareth that the Lords brought him to his Answer, which they omitted to Mortimer, and in that Point their Proceedings against Mortimer were erroneous. And had his manner of Accusation been erroneous also, No doubt but the Lords would have avoided that error now against Berkley.  
The manner how Berkley was arraigned here, in pleno Parliamento, is explained in the Precedent of, 1 R. 2. Gomeniz and Weston, who were brought Prisoners by the Constable of the Tower, before the Lords in full Parliament sitting in the white Chamber, where they were arraigned at the commandment of the said Lords in full Parliament, by Sir Richard le Scroop Knight, Steward of the King's House. The words full Parliament signify the Lords and Commons. For that Record saith, the Commons prayed that all such that have surrendered any Forts, etc. might be put to their Answer before the Lords and Commons, etc. Whereupon they were brought to their Answers in full Parliament for that Offence. So here I conceive the Lord Berkley being accused by the King, for the murder of King E. 2. was brought before the Lords and Commons: For the Commons are to be present at such arraignment as shall be shown hereafter, and the Clerk of the Crown having read the Accusation against him, Allocutus fuit: That is the Lord Steward of England recited the Fact, whereof he was accused and demanded of him how he could acquit himself.  
This I conceive to be the manner thereof, Vide the Appeals 21 R. 2. for the form thereof.  
I marvel the Lords permitted the Lord Berkley to wave his Peerage, and put himself super Patriam.  
Anno 4 R. 2. Sir Ra. Ferrer Knight, was brought into Parliament under the guard of the Marshal of England, and there arraigned on the King's behalf, for suspicion of Treason, etc. Numb. 21. In the Process against him is recorded that for suspicion of Treason surmised against him, he was arrested in the Marches of Scotland, by Monsieur de Lancaster, and other Lords Temporal there being in the said Marches, and that he was brought under the said Arrest by commandment of the Lords to Answer in this Parliament, to that which shall be surmised against him, in special concerning certain Letters, which were found and sent to the King and his Council. The Letters were also recorded, and read in Parliament, Numb. 17. 18, 19, 20. but the Information exhibited against him, whereupon he was arraigned is not recorded. It is only said, He was arraigned, Ex parte Domini Regis.    

§. 3. Here might be two Questions. 
Quest.   
First, Whether was this Sir Ra. Ferrer legally brought to his Answer in Parliament by the commandment of the Duke of Lancaster, and those other Lords who were then with him in the Marches of Scotland.  
Secondly, Whether he being no Baron or Lord of Parliament (for he never had Summons) might be legally arraigned in Parliament for life and death, upon an Information, Ex parte Dom. Regis, which is contrary to the Law, as was resolved in Parliament, 4 E. 3. Numb. 2. and 6.  
For resolutions of these doubts, 
Resolve.  I am of opinion that the Duke of Lancaster might send Sir Ra. Ferrer to the Parliament, because it was then sitting, and might examine the Treason whereof he was suspected, though they could not proceed to Judgement against him, without the Commons, he being a Commoner, and not their Peer: And it fell out in the Examination of this business, they found the Letters to be counterfeited, and so he was acquitted thereof: And so far their proceeding was not illegal. For the Parliament may entertain and examine any Cause, and then direct the Judgement thereof to its own proper Court if it belong not unto them as, they did in, 5 R. 2. Numb. 43. & 44.  
Here Sir William Cogan Knight, being accused by Sir Richard Clurdon of matter sounding to Treason. 
Observ.  After the Lords had heard the Cause, they remitted both the parties to the Common-Law. And in this Case of Sir Ra. Ferrer (if they had found he had been guilty) they might have proceeded to Judgement against him according to the Precedent of Sir Tho. Mortimer in 2 H. 4. who was indicted in London, and the Indictment returned into the Chancery, and thence brought into the Parliament, where the Commons affirmed the same, and prayed Judgement against him.  
Anno 2 H. 4. The Lords Temporal gave Judgement on one Tho. Holland Earl of Kent, John Holland late Earl of Huntingdon, John Montague late Earl of Salisbury, the late Lord de Spencer, and Ralph Lumley who were beheaded in a War they had Traitorously raised against the King. This Judgement is entered but not the Information, Ex parte Dom. Regis, which is necessary to be understood, for had it been omitted, his Son Thomas would without doubt have assigned that for one of the errors in his Petition to reverse the said Judgement, 2 H. 5. apud Leicester, which he did not, though he assigned for an Error, That his Father was put to death without an accusation.  
In the Parliament begun at Westminster Feb. 6. 1 Car. 1. 
The Earl of Bristol charged with Treason.  and continued until June 25. Anno 2. ejusdem Regis, John Earl of Bristol was charged with High Treason in this manner, viz. Primo die Maii. The said Earl of Bristol being brought to the Bar, and kneeling till the Lord Keeper wished him to stand up; The Lord Keeper told him, he was sent for to hear his Charge of High Treason, And Mr. Attorney General being at the Clerk's Table, began to open his Charge, but being interrupted by the said Earl, who with much importunity exhibited Articles against the Duke of Buckingham then present, 
Articles against the Duke of Buckingham.  which as he said he conceived to be Treason, and required of the Lords that his Testimony against the Duke, and the Lord Conway, against whom he then also delivered Articles, might not be made invalid no more than the Charge against himself, which he affirms was procured by the said Duke: yet notwithstanding the head of the King's Charge were opened against him by Mr. Attorney, and then the said Articles against the said Duke, and against the Lord Conway were read. And it was ordered by the Lords of the Parliament that the Kings Charge against the said Earl, should be first heard, and afterwards the Earls Charge against the Duke, etc. But yet so, as the Earls Testimony against the said Duke be not prevented, prejudiced, hindered or impeached.  
Secundo die Maii. The House was moved that the Earl of Buckingham, might be indicted according to the, Stat. of 35 H. 8. the Treasons committed being beyond the Seas as was objected, and that being certified to both Houses, they to proceed against him by Trial of Peers. But their Lordships did not resolve on the manner of proceeding. Then the Houses were moved that Mr. Attorney might provide an Indictment, against the said Earl to be returned to the House on Saturday next, Maii 6. And if he doubt of the Form, to confer thereof with the Judges. And if any great difficulty, appear to resort to their Lordships and acquaint them with it. And it was ordered that Mr. Attorney proceed with the preparation, but the Houses not to be concluded at their next meeting on Thursday. And the Sub-Committee for Privileges, etc. to search for Precedents in the mean time. Die Jovis Maii 4. The Sub-Committee for Privileges reported one only Precedent, viz. the Trial of the Earl of Northumberland, 5 H. 4. which the Clerk read unto them out of the Parliament Roll of that year. Whereupon after long debate, It was ordered first that Mr. Attorney prepare the heads of the Charge, against the Earl of Bristol, and to bring them in on Saturday next.  
Secondly, The Earl then to receive his Charge at the Bar.  
Thirdly, That when the Earl hath heard his Charge, the Lords will determine when he shall Answer, But he is not to be inhibited if he will Answer presently.  
Fourthly, The Cause of the Earl of Bristol is to be retained wholly in this House.  
After the Earls Charge is brought in and his Answer, than their Lordships to proceed to hear Mr. Attorney's proofs amongst themselves, and then to put the Cause into a way of Proceeding in this House.  
Die Sabati Maii 6. The Lord Keeper showed how Mr. Attorney desired that in regard the House, hath already heard the nature of the crimes objected against the said Earl of Bristol.  
That the Clerk of the Crown in the King's Bench, may attend the reading of the Charge here according to a Precedent of former times, which was denied in regard the Clerk of the Crown in the King's bench, is no Minister of this Court, And also for that it was ordered May 4. that this Cause was wholly to be retained within this House. The said Order being read, the Earl was brought to the Bar, and the Lord Keeper commanded Mr. Attorney to read the Charge against him, who read the same out of a Parchment engrossed in Court-hand, and signed by himself, Ro. Heath.  
It containeth divers Articles of High Treason, and other great Enormities, Crimes, Offences, and contempts committed by the said Earl, etc. prout postea. Thus much touching the Charge against the said Earl by Information in the King's behalf.  
A Question was demanded of me and others in private, 
Quest.  the last Parliament: Thar seeing by Order of the Lords House May 4. the Earl of Bristols cause should be wholly retained in this House, how that might now be done in respect of the Stat. of 35 H. 8. By which it was enacted, That all Treasons committed beyond the Seas, as this Earls were, shall be tried in the King's Bench, or before Commissioners Assigned by the King; And an Order of the upper House cannot avoid the Statute. Some were of opinion, that the Earl was first to be indicted before Commissioners, appointed by the King, and that Indictment being returned into the Parliament to be tried thereon by his Peers, and vouched that Precedent of 2 H. 6. Of Sir John Mortimer's Indictment returned into the Parliament.  
But then the Cause cannot be wholly retained in the Parliament, neither can it be inferred out of the Precedent of Sir John Mortimer, that the Parliament can try any of Treason unless he be Indicted elsewhere. For then the Parliament should not have so much power, as hath the King's Bench and other inferior Courts, wherein Capital Offences may be both enquired of and determined. Neither can Sir John Mortimer. Indictment thus returned be a leading Case, for Trial of Peers in Parliament for he was but a Commoner, and therefore not to have been judged by the Lords, unless they had first accused him, and the Commons did so by Informing the Indictment to be true, before the Lords gave Judgement upon him. But their can be no Precedent shown, that a Peer of Parliament hath been tried in Parliament on an Indictment taken elsewhere.  
To resolve this Question two things are Considerable.  
First, 
Resolve. 1.  The Statute of 35 H. 8. Whether the meaning thereof were to limit the Trial of a Peer in the time of the Parliament (for Foreign Treasons assigned) taken in the King's Bench, or before Commissioners Assigned by the King, and not elsewhere. But I conceive the Statute hath no such meaning. The Preamble saith, it was doubted whether such Treasons might by the Common-Law of the Land be enquired into, heard, and determined within this Realm of England. For a plain remedy Order, and Declaration herein to be had and made, Be it enacted, etc. So that if such Treasons have not been heretofore enquirable by the Common-Law, than this Statute provides a Remedy and Order for the same hereafter. But this Statute doth not abridge the Parliament of the power it had to inquire of, and determine such Treasons in time of Parliament. Whereof there are divers Precedents, viz. 1 R. 2. Weston and Gomeniz, 50 E. 3. for William Latimer, and John Nevil, 7 R. 2. for the Bishop of Norwich, & ibid. Numb. 17. for Cressingham and Shipworth, & ibid. Numb. 24. for Sir William Elsingham, Sir Thomas Trevet, and Sir Henry de Ferrer, all Tried in Parliament for matters done beyond the Seas.  
The second thing to be considered is, The Order itself which I conceive to be of force notwithstanding the Statute, of 35 H. 8. for that it is neither directly contrary to the Statute, nor repugnant to the Common-Law, otherwise the Act of one House alone cannot alter a former Statute made by consent of both Houses. And this is to be remembered, 
Observ.  that the Proceeding against a Peer in Parliament is not necessary.  

But thus it was used to be, viz.  
The Peer accused to be brought before the Lords and Commons, and then the Lord Steward to sit in the Chancellor's place, on the Woolsack and the Articles to be read against him by the Clerk of the Crown, and upon his Answer the Lords do determine of their Judgement, which is afterwards pronounced by the same Lord Steward. A Question might be whether the Commons have used to sit with their Speaker at these Trials. If they have then the Court of Requests, or some such place may be provided for the purpose. And thus that whole Cause might be retained in Parliament notwithstanding the Stat. of 35 H. 8. Thus much touching the Accusation, ex parte Dom. Regis, exhibited in a formal Accusation by the King's Attorney.  
The Duke of Clarence was arraigned in Parliament, 18 E. 4. upon the like Information, but the Precedent is not in the Parliament Rolls: Therefore I omit it.    

§. 4. The second kind of Accusation on the King's behalf is, ex mandato Dom. Regis, upon the Roll and view of any proceedings elsewhere against the Delinquent, or upon his Petition; The Precedents thereof are these.  
Anno 5 H. 4. The Earl of Northumberland was Tried in Parliament, ex mandato Dom. Regis, upon his own Petition. The Accusation and manner was thus. The said Earl had raised Forces to have joined with his Son Hotspur, in Rebellion against the King: Hotspur was slain in the Battle of Shrewsbury, 21 July 4. H. 4. before the said Earl could join with him. Whereupon he dismissed his Forces, and retired to Worksworth Castle. The King after the Battle came to York, and sent for the said Earl, and being come pardoned him for his life but abridged him of his Liberty. The next Parliament was summoned the 20 of October to begin at Coventry the 3. of December. And the Earl had his writ of Summons. This Parliament was prorogued till the 23. of November by new Writs (as the manner than was) returnable Crastino Hillarii then following. But the Earl had no new Summons thither.  

But thither he comes a Petitioner.  
Speed saith he was abridged of his liberty, but the Record saith, he came before the King and Lords. And not that he was a Prisoner as Gomeniz, and Weston, 1 R. 2. Nor that he was caused to be brought as a Delinquent, sent for as Alice Peirce, 1 R. 2. But that he came before the King, Lords, and Commons of Parliament. And then the Chancellor told him that upon Wednesday last passed, he had been before the King and Lords, and Commons in the same Parliament; and besought the King as he had done before, at his coming before him at York. That the King would do him grace for his misprisions against him, in not keeping his Laws and Statutes, as by one Petition delivered by him in Parliament written in English, The tenor whereof followeth.  

To my most dreadful and Sovereign Liege Lord.  
I your humble Subject beseech your Highness, 
A Petition.  to have in remembrance my coming into your Gracious Presence at York, of your free will by your goodly Letters.   
The which Petition per Commandment du Roy, was examined by the Justices to have their Counsel and Advice therein.  
But the Lords by Protestation made claimed the Judgement, to belong unto them only in such Cases, etc.  
And so the Lords Tried him, and acquitted him of Treason and Felony, but found him guilty of a Trespass only which the King pardoned. Here no Information was exhibited against the said Earl, yet the King's Counsel opened his Offences to the Lords, else how could they appear.  
Anno 7 H. 4. The King commanded the Lords Temporal in Parliament, to advise what manner of Process should be made against Henry late Earl of Northumberland, and Tho. Bardolph late Lord Baron, for certain ill deeds which they had lately committed contrary to their Allegiance. At their meeting the Constable of England, showed them the Process made in the Court of Chivalry, against Henry de Peircy upon the Articles of Treason committed by him and others of his Covyn.  
In which Articles are named the Archbishop of York: Tho. Newberry Earl Marshal, the said Earl of Northumberland, the said Lord Bardolph and many others, and their several Treasons are therein contained. The Lords having advised therein, and considered the proofs delivered their opinion to the King touching the said Earl of Northumberland, and the said Lord Bardolph only, and proceeded to Judgement against them. Then the King caused to be demanded of the Lords Temporal, Peers of the Realm what they would say touching the Act of the said late Archbishop of York, and of the said Earl Marshal, who lately with a great multitude of people were armed, and trained in the field within the Realm of England with Banners displayed, etc.  
Unto which demand the said Lords Temporal said, That according to the Information to them given by the said Constable. It seemeth unto them to be Treason: yet notwithstanding the Lords desired that with good deliberation, when they next returned to the Parliament they might speak thereof, unto our Lord the King as no error might be found in their doings in time to come. This was done on that day the Parliament was adjourned. Here the Lords had no other Accusation against those two Peers but the King's commandment, upon view of former Process against them in the Court of Chivalry.  
And the Lords declared their opinion touching the Archbishop of York, and the Earl Marshal (though their Treasons were contained in the same Process also) lest Error might be found in their doings hereafter. But whether they thought their Error to be, that the King had not commanded them first to advise thereon, touching the said Archbishop, and the Earl Marshal as he had done touching the others. Let the Reader Judge; For my part I think that would have been error: Could the Lords proceed upon Process elsewhere unless the King commands them?  
2 H. 6. The Judgement against John Mortimer, is drawn up very briefly by John Hales one of the Justices of the King's Bench, wherein he first shows that the said Sir John Mortimer was Indicted in London sitting the Parliament before the Lord Mayor of London, and other Commissioners appointed by the King. For that the said Sir John being committed to the Tower, for suspicion of Treason, corrupted his keeper and broke Prison: That the said Indictment was returned into Chancery, Ex mandato Dom. Regis, and by the Chancery brought into the Parliament before the Duke of Gloucester the King's Protector, and the Lords Temporal, the King being then an Infant.  
And the Protector being Authorized by Commission to hold the Parliament, de Precepto Dom. Regis. That the said Sir John Mortymer by Virtue of the Writs was brought before the said Duke, and Lords, and Commons. That the said Commons affirmed the said Indictment to be true, and desired Judgement against him, as convict of Treason and Felony.  
And lastly, That he was thereupon adjudged. In this is set down all the essential parts of the Lords proceedings against Mortymer. The Ceremonious or formal parts thereof are omitted, as, who complained of or accused mortimer to the Parliament.  
The King or the Commons did not, for then there needed no Indictment: And therefore it must move for the King either before the Indictment, or rather upon the Return thereof unto the House. For had the Accusation been before the Indictment, it had been a shorter way to Arraign him also before the Commissioners in London, (he being no Member nor Peer of Parliament) then to return the Indictment into the Chancery, and then be brought into the Parliament.  
Here is also omitted the Conference before hand, between the Lords and Commons touching this matter: For it is very unlikely that the Lords did suddenly send for the Commons, and then abruptly read the Information before them, and they as suddenly affirm the same, all these are necessarily understood. That the Commons affirmed the Indictment, & e.  
It appears that the Lords cannot of themselves Judge a Common Person, for an Offence for he is no Peer according to that of, 4 E. 3. Numb. 26.  
The manner of Accusation by Information, Ex parte Dom. Regis, is when the Commons as any other private Person accuse any man unto the Lords in general, but do not declare the Offences in particular, other then by the Commandment of the King. Articles are drawn up against the Delinquent, Ex parte Dom. Regis.   

The Precedents are these.  
2 R. 2. The Constable of the Tower, was commanded to bring Gomeniz and Weston, (whose Offences were complained of in general by the Commons that they named) before the Lords in Parliament, to Answer to the Articles objected against them on the behalf of the King, and they were severally arraigned▪ at the Commandment of the Lords, etc.  
Eodem anno, Alice Pierce being complained of by the Commons was accused, and commanded to come before the Lords in Parliament, to Answer to certain things objected against her on the King's behalf.  
And here upon Sir Richard le Scroop, Chief Steward of the King's House by Comandment of the Lords, rehearsed in Parliament in the presence of the said Alice, a certain Ordinance, etc. Made in the Parliament of 50 E. 3. against her.  
And this Rehearsal being made, the said Steward surmised unto the said Alice. That it seemed to the Lords of the Parliament that she had incurred the pain comprised in the said Ordinance in certain points, and especially in two, That is to say, etc.  
By these two Precedents it appears plain enough that the Lords commanded the Articles to be drawn, and exhibited though ex parte Dom. Regis, for all these are said to be done by their Commandment, And the practice at this day is, that out of the Complaints of the Commons, as of Mompesson, The Lord Chancellor, and the Lord Treasurer, and a Committee of the Lords did draw up the Charges. But they wanted the words Ex parte Dom. Regis.   

The reason why in this Cause the Articles are, Ex parte Dom. Regis, seemed to be this:  
The Commons complain but impeach not, Notwithstanding the Impeachment the Lords cannot proceed neither can they Impeach any to themselves: 
The Lords cannot impeach any to themselves.  So it rests that the party is to be Impeached at the Kings Suit.  
It may be lawful for me to examine the proceedings of the Lords in the Complaint against Mompesson, and to compare them with ancient Proceedings in like Cases, And they will appear to differ much.  
And touching Mompesson the Commons did not only complain but accuse him: He fled, in his absence they ought to have proceeded to Judgement against him, before Proclamation first made for him to appear before the King, and then at a day, the ancient use in such Cases was this.  
The Lords considered of the Complaint, and examined the Proofs produced by the Commons: Then agreed on their Judgement and caused Proclamation to be made throughout England for the party to appear at a day, else Judgement shall be pronounced against him, with which the Commons are to be acqnainted before the Proclamations are sent for. Then the Return of the Proclamations to be reviewed and examined, and if any Errors be therein, new Proclamations are to be made in the next Shire only for the party to appear at a short day: If they find no Errors in the Return, than Judgement is to be pronounced and not before. Thus it was in 21 R. 2. in Thomas Mortymors Case, etc. In 7 H. 4. in the Earl of Northumberlands Case. But there needed no Articles to be drawn up, Ex parte Dom. Regis, out of the Impeachment of the Commons for the Suit is theirs and not the Kings.  
Touching the Lord Treasurer, First the Commons did swerve from the Ancient Course in this, they delivered not their Accusation in writing (he being absent;) Had it been in the open House, an Impeachment by word of mouth had been sufficient, and the Suit had been theirs: but it being at a Committee, how could the Lord Treasurer take notice of their Impeachment? wherefore the Lords of necessity did draw up a Charge against him out of their Accusation, and then it became the King's Suit, and they were abridged of their power to reply, or demand Judgement, Prout in Weston & Gomeniz, Case 1. R. 2.  
And Alice Peirce, ibid. Neither was it now necessary for the Commons to be acquainted with the Delinquents Answer, or any of the Proceedings, for that they neither demanded he might be put to his Answer before the Lords and them, nor impeached by word in open House, nor in Writing, One of which is required in an Impeachment.  
And the Lords they varied in this, that they did mingle other Complaints with these of the Commons, when each should have been apart of itself, prout 43 E. 3. Sir Joh. at Lees Case. Neither did the Lords anciently use to omit any part of the Commons Complaint and Accusation, as they did the Imposition on the French-Wines: And the Articles of the Charge they sent to the Lord Treasurer ought to have been examined ex parte Domini Regis prout in the former Precedents of 1 R. 2. The next Precedent is 7 R. 2. upon the Demand of the Commons against the Bishop of Norwich and others.    

§. 5. Of Accusation by Complaint of private Persons.  
I do not remember any Precedent of this manner of Accusation for public 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 Information pro Domino Rege from private persons, as the Inferior Courts have: But what hath been done shall appear; I will omit all Complaints of particular wrongs, eucept it be of Bribery, Extortion or Oppression, in Men of Authority.  
Anno 43. E. 3. William Latimer exhibited his Petition in Parliament unto our Lord the King, and to his Council, showing that he had the Wardship and Marriage of the Heir of Robert Latymer, by mean Grant from the King, and held the same until Monsieur John at Lee, than Steward of the King's House, sent a Sergeant at Arms to bring them to London, and commanded him, being come, not to depart without his leave, 
A great Oppression.  upon payment of 1000 l. and afterwards would not give him leave to depart until he had surrendered 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 reason before the Lords, etc. no. 20, 21. and also the said John was put to reason before them for this; When he was Steward of the King's House, he caused divers to be attached by their Bodies, some by Sergeants at Arms, and some otherwise, as W. Latymer and others to be brought before the King's Council, etc. 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 Judge's Commandment, Hugh Levenham, an 
* Promoter.  Approver, who had appealed several men of Felonies, etc. n. 24. and also, that he being sworn by the King's Council, did bargain with Nicholas Levayn for the Manor of Cainham in Kent, which the faid Nicholas claimed to hold during the Minority of John Staynton, whereas the said John at Lee knew the same was never 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 hearing; And for the Fourth and Fifth Particulars, I conceive the King's Council accused him thereof, for that one is an Offence against the legal Proceedings of Justice, which then was that of the Approver, viz. He which accuseth any one of Felony, etc. should remain in Prison as well as the accused until Trial. Of later times the Accuser puts in Sureties to prosecute; and the other Offence is a partiticular wrong done unto the King in his Revenues: And had any private person accused him of this, their Petitions would have been recorded as well as Latymer'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 afterwards John Botheil and W. Cooper exhibited their Bills against him, to this effect;  
To their Thrice Redoubted King, and to his Sage Council, showeth John Botheil of London, That the Monday next after the Ascension, 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 Merchandizes, etc. 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, etc. and because that W. Ellis knew that W. Cooper was to come to the Parliament, and show these and other Grievances in aid of the Merchants, and also to show 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, etc. 
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, etc. from the Merchant of Pruse, and the Imprisonment of the Petitioner by false suggestion to the King.  
Upon hearing of the Matter, the Lords Ordered, That as for the Complaint touching 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 Damages 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 Council 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 only to the King himself. Whereas Ellis his false Suggestion was by a Letter written to one of the King's Servants, which being showed 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 Conceit.  
Anno 5 R. 2. Numb. 4. Richard Clevedon Esquire, by his Bill exhibited to the King in Parliament, accuseth Sir William Cogan Knight.  
Anno 5 R. 2. Numb. 45. The Mayor, Bailiffs and Commonalty of Cambridge were accused, etc.  
The next of this kind is a very slanderous 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, 
The Fishmonger contra L. Chancellor.  John Cavendish Fishmonger, complained in this Parliament:  
First, Before the Commons of England in that Assembly, in presence of some Prelates and Temporal Lords, and afterwards 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 accordingly the Chancellor did (at the Commandment of the King) find Sureties, viz. Two Earls, etc. Then the Fishmonger rehearsed, how that all the last Parliament 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 except Royal Power. The which was endorsed, saith he, and committed to the Chancery, to discuss and determine the Matters therein comprised, 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 deliucred 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. Notwithstanding all which, he found no Favour from the Chancellor in his Suit, but was delayed, and still is, and cannot have Justice therefore.  
That the said Otrey told him, that he could have had more Money of his Adversaries 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 other Fish, and sent him his Bond canceled; but whether he did it out of Conscience, or to avoid Slander and Reproach, he knew not; Judge you, My Lords: but he was not paid for his three yards of Scarlet.  
Unto this the Chancellor made his Answer, 
The Chancellor's Answer.  not presently, but at another time; for the Record saith, He Answered first before the Prelates and Lords, and afterwards before the Lords and Commons; 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 & Communitat' in Parliamento. So that the Answer was made some other way.  
First, He protested his Innocency touching the Delay of Justice, and showed how the Delay was through the Difficulty of the Cause, and vouched the Justices and the Sergeants, who had often heard the Plead.  
Touching the Bribery, he swore by the Sacrament he had no knowledge thereof, until upon Account with his Officers, he found those Fish's not paid for; and then he presently caused them to be paid for, and the Bond canceled, and sent him. He denied that his Clerk moved him in that Business; all which he offered to prove in such manner as the King and the Lords should ordain, and demanded Justice against the Fishmonger for the Slander. Unto which the Fishmonger presently answered, and said, He did not accuse the Chancellor himself, but his Clerk only. The Lords examined the Fishmonger and the Clerk about the Bond, and his Adversaries on their Allegiance, whether they had given any thing, or promised to give? And finding tde Chancellor free from Bribery, 
The Chancellor acquitted.  the Lords acquitted him of his Accusation aforesaid; then at the Chancellor's Request, the Fishmonger was committed until he found Sureties to appear the die in diem before the Lords, and before any Judges who should be assigned. The Lords committed the Clerk also; and afterwards the Parliament growing to an end, the Complaint was referred wholly 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 Parliament 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 Sergeants, etc. and they called the Fishmonger before them, and cause to be recited the said Accusation, and the Chancellor's Answer; 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 Chancellor hath acquitted himself in Parliament, and is yet ready to acquit himself by any way possible?  
The Fishmonger denied that he slandered the Chacellor, but the Clerk only, etc.  
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, 
The Fishmonger guilty of the Defamation.  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 complained 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, aldermans and Citizens of London, concerning the Fishmongers, and the said Mayor, and Aldermen, and Fishmongers were present at the reading thereof; where Nicholas Exton, who spoke for the Fishmongers prayed the King to receive him and his Company into his Majesty's protection, Numb. 59 which was granted, Numb. 60. Then one Walter Sibyl, a Fishmonger, craved Audience, and said, These Bills were not exhibited for any good zeal to the Commonweal, but for mere Malice to the Fishmongers, for that the chief Exhibiters of these Bills being commanded to prison for sundry Misdemeanours in the time of E. 3. were then imprisoned by certain of the Fishmongers, who then were chief Officers in London, for which cause Malice was born at that time, Numb. 60.  
To that, one John Moor a Mercer answered, The Citizens of London went to keep the Peace towards them, unless they went about to let into the said City the Rebels of Kent and Essex, as the said Walter, and others did. Numb. 60.  
The said Walter Sibyl took advantage of those words, and desired the Lords to bear witness.  
John Moor thereupon expounded his words, saying (as the Report than went) and prayed the Lords that the Truth thereof might be further enquired of in the City.  
There is one only Precedent of a Complaint made by a private person in the House of Commons, and of the Commons proceeding therein, against a Lord of the Parliament; which was thus:  
Anno 15. H. 6. Tho. Philip's exhibited unto the Commons his Bill of Complaint against John Bishop of London, for his long Imprisonment upon suspicion of Heresy.  
The Commons sent up the Bill, being written in Paper, amongst other, to the Lords, without any Message, for aught appeareth upon Record. On Monday 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 voice, Quod non consentaneum fuit aliquem Procerum alicui in eo loco responsurum, Lunae 2. Martii. In the Parliament begun at Westminster, An. 16. Jac. Sir John Bowser Knight, complained of the Bishop of Lincoln, 
Bish. William's Lord Keeper.  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 Councillors made a good Answer (in the Opinion 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, etc. In this Parliament also the Lords and Commons procured Commission unto certain of the Lords to inquire of the Enormities of the Realm, and to redress 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. Afterwards he sought all means to overthrow those Lords who procured that Commission, viz. the Duke of Gloucester, the Earls of Danby, Arundel, Warwick, and Earl Marshal. And at a Consultation thereupon, he sent for the Chief Justice Tressilian, and some other Judges, and his Sergeants at Law unto Nottingham, where, on August 25. Anno 11. he propounded certain Questions containing 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 together 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, 
The History of the Appeal of 11 R. 2.  they came Novemb. 3. Anno 11. and kneeling before the King's Majesty, he demanded why they were Assembled at Heringby-Park in warlike manner? They answered, for the good of the King and Kingdom, and to remove certain Traitors from about him, meaning the Lord of Ireland, the Archbishop of York, Michael de la Poole, Sir Robert Tresilian, and Sir Nich. Brembre. And with that they threw down their Gloves and Gauges 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. Purificat. 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, showed, That whereas he understood his Majesty was informed, that he intended the Deposing of him, and Advancing 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 Parliament, 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 offering to make Proofs thereof, required that the said Appellees might be called to Answer; and for default of their Appearance, demanded Judgement against 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 Consultation, answered the Lords, That the Appeal is in no point made and declared according to the Order of the Common or Civil Law.  
The Lords after long Debate, declared 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 Process thereon depending, to be good, according to the Laws and Course of Parliaments.  
And the Default of Appearance was Recorded, and Judgement given, etc. against those who made their default.  
After which Sir Nicholas Brembre, a Commoner, was brought Prisoner before the King and the Lords at the request of the said Appellants: And the said Articles being read, he pleaded Not Guilty; which he was ready to defend 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 Appellees, which they would have done, and it appertained to them to have done, had not the aforesaid Appellants pursued the said Appeals. Whereupon was answered by the Lords of Parliament, That the Battle doth not lie in this Case; but that they upon examination of the Articles, would proceed to Judgement.  
Here I note, 
The Lords cannot proceed against a Commoner but upon complaint of the Commons.  That the Lords cannot proceed against a Commoner, but upon a Complaint of the Commons: But here is not expressed how the Commons 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 Judicature 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 Commons accuse Commoners, as the Lords do their own Peers. I suppse that Brambre was denied the Battle, because the Commons accused him also; otherwise he ought to have it granted upon an Appeal.  
Afterwards the Commons themselves accused and impeached divers Commoners, prout 2 Mar. Sir Rob. Belknap, L. Chief Justice of the Common Pleas, Sir John Carey, late Chief Baron, and other Justices, etc. The Records were brought into the Parliament, at the Demand of the Commons, and the Commons accused the Justices for their untrue Answer made unto sundry Questions before the King at Nottingham, to the emboldening of the aforesaid Offenders in their traitorous Designs and Attempts, etc. Unto which they answered, etc. were adjudged, etc.   

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 Beauchamp, Sir John Salisbury, and Sir James berner's, Knights, do ensue underwritten, whereof the Commons pray Judgement in this present Parliament.  
Thus much touching the Appeal of 11 R. 2. But this begot another Appeal 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 Castle 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 penned by the Advice of some Civil Lawyer. It seems also they were very careful herein to avoid all Errors of the former Appeals.  
For in that of 11 R. 2. they appealed divers Commoners, but here the Lords appealed none but Peers; than it was done by word of mouth, they being called to the King upon some other occasion, but now it was done solemnly in writing, and was delivered to the King sitting in his Throne of State. There they offered to prove their Accusation by Battle (a thing not meet for the Parliament) 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, etc. as you our thrice Redoubted King, and this Honourable Court of Parliament should ordain. Nor were they less careful in their proceeding to Judgement, 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 without 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 Sagittariis & viris armatis, tanquam ad bellum, & contra hostes omnino progressuri fuissent. Ipse vero Rex ut efficacius proficere possit, nequam conceptus malefactores de Commit ' Cestr' congregari fecit ad velandum locum stramine, etc. Erexerat autem Rex quandam domum amplissimam in Palatio Westmonaster' 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 Communitatem. Et Forale nuncupatur Parliamentum. Thus much of Accusation by Appeal, (which when any of the Lords accused others out of Parliament) was summoned; 
Appeals abolished per Stat. 1 H. 4. c. 14.  but God be thanked, they are abolished, 1 H. 4. c. 14.     


CHAP. III.  
The Parties Answer.  
THe Party accused is to be brought to his Answer, otherwise the whole Judgement will be erroneous, as was Mortym. 23 E. 3. Numb. 10. and Spencer's, 15 E. 2. and John Matrevers, 21 E. 3. Numb. 65. dors. Although the Party be absent, yet the Parliament hath used all means possible to have his Answer, prout 21 R. 2. where the Lords Appellants, and the Commons also accused Tho. Mortymer of Treason; and the Commons said, That it was notoriously known unto them, that the King had sent his Mandate by W. D. a Sergeant at Arms, unto the said mortimer in Ireland, commanding him upon his Allegiance to come before the King in all haste, to answer, etc. And that the said Mortymer having notice thereof, withdrew himself among the wild Irish, where the same Sergeant, nor any other Officer of the King's durst come, for fear of Death: Wherefore, and for that his Offences are notoriously known both to the Lords and them, they prayed Judgement, etc.  
The King, the Lords, and the Procurators of the Clergy considered of the Request of the Commons with good deliberation; and then the Lords, with the said Procurators, by the assent of the King and Commons, did award that Proclamation should be made through England and Ireland, commanding the said Tho. Mortymer to render himself in proper Person to the King in what place soever it shall be in England, within three Months after the 23th. Day of December next coming, to be at his Answer; and they farther awarded, That if he came not, etc. that then he shall be judged Traitor, and Convict of of all Treasons whereof he is accused, and shall forfeit, etc.  
Then the King adjourned the Parliament, and the Appellants to the 15th. of Hilary next at Shrewsbury; on which Day the said Appellants declared to the King, That it was awarded that Proclamation should be made, etc. ut supra, The Commons did the like. And for that the said Tho. Mortymer came not, they had judgement.  
In 7 H. 4. The Lords agreed this Judgement against the E. of North. and the Lord Bardolph, who were fled to the Rebels in Wales, and Proclamation ut supra, throughout England. At the day prefixed they examined the Returns of the Proclamations in the presence of the Commons, and so the Judgement was agreed on in their presence also; and so it ought to be in all Cases of Life and Death. And finding a small Error, they awarded new Proclamations in London only; and the Return thereof was again viewed and considered in the presence of the Commons, and then on the next day Judgement was given.  
Eodem Anno 21 R. 2. 
An Answer required, though the Duke was known to be dead.  The Lords Appellants accused also the Duke of Gloucester of Treason; and although they knew he was dead, they prayed the King that he might be brought to his Answer. Whereupon the King sent his Writ to the Council of Calais (unto whose Custody he committed the said Duke) to bring him into the Parliament to his Answer. The Captain returned his Writ, That the Duke is dead; the which Writ and Return being read, the said Appellants prayed Judgement; and the Commons showed, That the Duke's Levying War against the King's Person, is notoriously known to all the States of Parliament, and therefore they desired Judgement also, and had it.  
And what may not the whole Parliament do when they join in one? Yet notwithstanding the King fearing some Error (as it seems) the Lords Appellants besought the King, that if there were any thing on Record, be it by Confession or otherwise which concerned their Appeal, that it might be openly known, and shown in full Parliament. Whereupon, by the King's Commandment, was read a Commission granted unto William Richal Justice of the Common-Pleas, and a Confession of the Duke of Gloucester, made before him, by virtue of the said Commission; yea and Richal himself, being commanded, did justify that the Duke did write the Confession with his own hand, in his absence, and afterwards read it unto him: so careful they were to have something to supply an Answer, I marvel that Richal was acquitted of his Proceedings herein at the next Parliament of 1 H. 4. where he affirmed that much of this Duke's Confession was altered after he had returned his Commission. He well deserved to die, in that he spoke not of it.  
Yet there is one Precedent directly contrary to all this, viz. 11 R. 2. in that Appeal which happened on this occasion.  
The aforenamed Duke of Gloucester, and four other Lords went to the King, and accused the Duke of Ireland, the Archbishop of York, Michael de la Poole, and others of Treason; the King adjourned them to the next Parliament, promising them Justice there, and in the mean time conveyed away the Parties accused, and then by Proclamation, Part 8. fol. 603. in the next Parliament, 11 R. 2. the Articles of the Appeal being read, the Duke and other Appellants offered to make proof thereof, and required that the Parties appealed might be brought to their Answers; and for default of Appearance, demanded Judgement. Whereupon the King did deliberate with the Lords, and commanded the Justices, and other Sages of the Law to give their best Counsel to the Lords how to proceed rightly in this Matter of Appeal; who after Consultation therein had, answered the Lords, That they had seen and considered the Tenor of this Appeal, which they said was in no point made and declared according to the Order of the Common or Civil Law. But they gave no Answer touching the Demand of Judgement for default of Appearance; whereupon the Lords deliberated, and after by the Lords assent declared that this Cause committed by the Peers against the Person of the King and State of the Realm, shall be determined in the Parliament only, and by no other Law than by the Law and Course of the Parliament: And that it belongs to the Lords only to judge in such Cases. And with the assent of the King they did judge the same Appeal, and the Process thereupon depending, to be good, according to the Law and Course of Parliament.  
Then the Lords Appellants proceeded, and desired to have the fault of Appearance recorded, and Judgement given, and so it was. So likewise 21 R. 2. After the King had given the full power of Parliament to determine all Matters begun into the Hands of twelve Lords or six, and six Commoners, or any three. He adjourned the Parliament from Westminster to Shrewsbury in 15 Hil. and there on March 22. It was showed to the King how that Robert Possington was impeached at the Parliament at Westminster, for being with the Duke of Gloucester in levy at Herring, An. 11 R. 2. For which the said Duke was adjudged as Traitor, and therefore they brought the King to ordain the like Judgement against Robert Possington, though he was dead: Whereupon our Lord the King, 
Found guilty long time after he was dead, so forfeited his Estate.  by the assent of the Lords and Knights of Counties, having power, etc. awarded the said Robert guilty, etc. And that he shall forfeit, etc.  
But these extraordinary Precedents cannot lead us into the ordinary course of Proceedings; and I allege them only so, as their Errors may be avoided.  
§. To conclude, 
The Party accused to be brought to his Answer.  it is the just and constant Course of Parliament, to bring the Party accused to his Answer; yea, though he fly Justice, yet to send out Proclamations into the Countries, that he appear at a Day, or else such and such Judgements shall be given against him. I confess this Course was omitted in the Judgement against Mompesson, 18 Jac. and haply it was not then thought upon; the Judicature of Parliament being so long out of use; and therefore that cannot be alleged as a leading Precedent.  
And in that Judgement 21 H. 6. against Sir Jo. Mortymer, upon an Indictment of Escape out of Prison, being committed upon suspicion of Treason, the said Mortymer's Answer is not recorded; yet it is said he was brought before the Lords, and the said Indictment read in his presence, that he made an Answer unto it, though not mentioned. And this proves that the Party is to be brought to his Answer; else Mortymer's presence had not been necessary.  
Anno 7 R. 2. Numb. 2. The Duke of Lancaster and Gloucester complained to the King, That Sir Tho. Talbot, with others, conspired the Death of the said two Dukes, and prayed the Parliament to judge thereof. The Fact is judged High Treason, and Writs sent to divers Sheriffs to apprehend him, which Writs were retornable into the King's-Bench: And upon Proclamation made in Westminster-Hall, That upon the Sheriffs Return, and the not-Appearance of the said Thomas, he should be convicted of Treason, and forfeit, etc.  
This was extraordinary in terrorem: But what may not the whole Parliament do? They may alter Law much easier than Form.   

In the Answer is to be considered,  
First, In what Causes the Party is to answer as a Prisoner; and in what as a Freeman.  
Secondly, When Council shall be allowed him, and when not.   

Touching the First.  
The Parliament hath guided their Procceding therein secundum Legem terrae, & Judicium Parium. According to the 2th. Chapter of Magna Charta, Nullus liber homo capietur vel imprisonetur, etc. nisi per legale judicium Parium suorum, vel per legem Terrae. And therefore in Causes Capital, whether the Party accused be a Lord of the Parliament, or a Commoner, he is brought a Prisoner to his Answer secundum legem terrae, prout, 4 E. 3. Numb. 1. etc.  
The Lord Berkley accused by the King for Murder of E. 2. Anno 1 R. 1. Jo. Lo. Gomeniz and W. Weston. Upon the Demand of the Commons for surrendering Forts beyond the Seas, An. 4. R. 2. Sir Ra. Ferrer Knight, was apprehended for suspicion of Treason.  
Anno 28 H. 6. Although the Lords refused to commit the Duke of Suffolk upon the Commons complaint of him of a common Fame of Treason; yet when they accused him of particular Treason, he was Committed, and brought Prisoner to his Answer. But in Cases of Misdemeanours it is otherwise; then the Party accused, whether Lord or Commoner, answers as a Freeman.  
The Lord within his Place, the Commoner at the Bar; and they are not committed till Judgement, unless upon the Answer of a Commoner, the Lords find cause to commit him, till he find Sureties to attend, etc. lest he should fly; prout Jo. Cavendish upon the Lord Chancellor's Demand of Justice against him for his false Accusation, was Committed after his Answer, until he put in Bail, Anno 7 R. 2. And before Judgement.  
And so Michael de la Poole, the said Chancellor, 10 R. 2. after his Answer, and many Replies of the Commons, was Committed, and presently Bailed.  
Anno 50 E. 3. William Lord Latymer, and John Lord Nevil, being impeached by the Commons, answered in their Place: so did the Bishop of Norwich and the Lord Chancellor, 7 R. 2. And the said Lord Chancellor too, 10 R. 2. answered in his Place, though afterwards he was committed before Judgement, upon Request of the Commons.  
The Bishop of Bristol, 1 Jac. and the Duke of Buck. 1 Car. 1. All these answered as Freemen in their Places, their Offences not being Capital. And the like Precedents there are of Commoners.  
Anno 50 E. 3. Richard Lions, William Ellis and John Beecher did answer as Freemen, being impeached by the Commons. And whereas the Commons did that year also accuse Adam de Bury, who was absent; the Lords sent for him to come; but he contemned their Authority, and came not. Then the Lords, as it seemeth by the Record, sent to apprehend him, and he could not be found; wherefore they awarded that all his Goods should be put in Arrest. Ibid. N. 17. It is briefly entered, Adam was sent unto to come and answer in Parliament; he came not, nor could be found: Wherefore it was awarded, etc. Which is sufficient to prove, A Commoner is not to be brought a Prisoner to his Answer for a Misdemeanour, if he will appear.  
5 R. 2. The Mayor and Bailiffs by name, and the Townsmen of Cambridge were complained of in Parliament, for many Outrages against the Scholars there; and the Lords sent one Writ to the Mayor and Bailiffs that then were, and to the Commonalty, to appear and answer; and another Writ to the Mayor and Bailiffs that did the Outrage; and they appeared in person, and the Commonalty by their Attorney.   

This was the Ancient Course.  
Yet even in these Days, viz. 15 R. 2. the Peer of Holland complained of a great Riot committed by Henry Tibb, and divers others, in the Parsonage-House of one Williams. Whereupon a Sergeant at Arms, by virtue of a Commission to him made, brought up the said Tibb, and one more only (the principal doers therein) before the Lords in Parliament; who, upon the Return of the Examination, confessed the whole Matter, and were committed. But I suppose the Sergeant at Arms was sent, for haply they would have obeyed no Writ: and yet he was sent for two of the principal Offenders only. At this Day, if the Commons accuse a Commoner of Misdemeanours in such a state of Liberty or restraint as he is in, when the Commons complain of him, in such he is to answer, prout 18 Jac.  
Sir Francis Michael, and Sir John Bennet were both committed by the Commons before their complaint to the Lords, and so they answered as Prisoners: But that in a sort may be called Judicium Parium suorum.  
18 Jac. The Earl of Middlesex being then Lord Treasurer, and accused of Misdemeanours only, absented himself from the House: His Charge was sent to him in writing, and he answered in writing. At the Day prefixed for his Trial, he was summoned by the great Usher to appear. He came without his Staff, and kneeled, until the Lord Keeper willed him to stand up. There he protested, That he ought not to answer in that Place, and desired others might not be prejudiced thereby: And I hope they will not.  
The Earl did himself the first wrong, by absenting himself from the House; for he might have stayed there until Judgement, unless when his own Cause came in agitation.   

§. 2. Touching Council.  
In all Causes of Felony, 
Touching Council.  Treason, etc. Council anciently was denied to the Party accused, prout Anno 4. R. 2. Numb. 21. Sir Ralph Ferrer was brought to the Parliament under the Guard of the Marshal of England, and arraigned at the King's behalf for suspicion of Treason, who prayed to the King and to the Lords to have Council in that Case. Unto whom it was said, That in all Matters wherein Council ought to be granted by the Law of the Land, the King or Lords would allow it. And it was further said unto the said Sir Ralph, That forasmuch as the Matter stands so much upon Treason, That by the Law he ought not to have Council in his Case, of no earthly Creature, but obliged himself to answer at his peril.  
This last Answer was given upon deliberation. And 5 R. 2. Numb. 44. Sir Richard Cogan Knight, being accused by Richard Clevedon Esquire, for extorting 200 l. from the Prior of St. John's of Jerusalem in a riotous manner, required Council, which was denied him, for that the Cause touched Treason.  
28 H. 6. The Duke of Suffolk being accused of Treason, by the Commons, desired Copies of the Articles, but no Council, and he answered without Council.  
Primo Car. 1. In the Parliament begun Febr. 6. The King's Attorney exhibited Articles of Treason and misdemeanour against John Earl of Bristol, and he had no Council allowed him; which was on this occasion:  
Anno 21 Jac. The Earl of Middlesex was denied to answer by Council touching Misdemeanours only, that Precedent of 10 R. 2. of Michael de la Poole being mistaken, as I conceive. And afterwards the Lords considering the Inconveniences that might happen thereby, did order that Council should be allowed to all Delinquents in all Cases generally. At the Voting of which Order, the King and Prince were present, and I did expect some Reply thereunto on the King's behalf, and especially observed whether the Prince would any ways dislike of it, either in Words or Countenance; and he showed none: which made me verily believe that he had been acquainted therewith beforehand; but he was not, as I shall make it appear.  
In this present Parliament, upon reading the Articles of Treason and Misdemeanours against the said Earl 6 Maij, and upon the Earl's Answer to them on the sudden, The Journal is, The Lords did answer that he should have Council allowed him to plead his Cause. But on Monday the 8th. of May, the King sent a Messenger to them, That he not suing for a Default in Cases of Treason and Felony: It is an ancient fundamental Law of this Kingdom, and desired the Lords to proceed with that Caution, that ancient fundamental Laws may receive no blemish nor prejudice.  
On the 15th. of May, the Lords answered this Message, That by an Order Dated May 24. 21 Jac. Anno 1624. Counsel was then present, and they had allowed the Earl of Bristol Council before the Message came May 14.  
His Majesty is content the Earl of Bristol to have Council, although his Majesty knew that by the Law he ought to have none; but takes Exceptions to that Order of the 24th. of May 1624. That it was occasioned by the Earl of Middlesex, whose Cause was only Criminal, which never till now extended to Cases Capital.  
And that the Judges were neither advised with therein, nor the King's Council heard for his Majesty; and therefore his Majesty is not satisfied about the general Order, but will advise, etc. The Lords thereupon allowed him Council to plead, etc. This Parliament of 6 Feb. 1 Car. 1. was dissolved before the Cause of the Earl of Bristol was heard and determined, and that the said Earl was sued in the Star-Chamber for the very same Matter contained in the Articles against him in Parliament: All which were but Misdemeanours. And if it be lawful for me to speak freely, I believe the Lords thought they were but Misdemeanours, when they allowed him Council in Parliament: But in Cases of Misdemeanours only the Party accused was never denied Council.  
Anno 10 R. 2. 
In Misdemeanour the Party may have Council to answer.  The Commons accused Michael de la Poole of many Misdemeanours in open Parliament before the King. Afterwards in the King's Absence, the Chancellor said first to the Lords, That he was Chancellor of England, and for the time represented the King's Person in his absence; and demanded whether he ought to answer in the Presence of the King, since he was impeached of Acts done whilst he was Chancellor.   

This received no Answer.  
Secondly, He said, That he had appointed by the Advice of his Council Monsieur Richard le Scroop, his Brother-in-Law should have the words of his Answer to the first Impeachment. Whereunto the Lords said, That it was Honest for him to speak by his own mouth. And thereupon he made Protestation that he might add to and take from that which should be honourable and profitable for him. The which things unto him were granted. And the said Chancellor declared as well by himself, as by the mouth of the said L. Scroop, That etc.  
I note here that Council was not denied him, but that it was only told him, It was honest for him to answer by his own mouth.  
Anno 7 R. 2. The Bishop of Norwich, for Misdemeanours in general, Numb. 15. was particularly charged by the Chancellor, Numb. 18. The Bishop said, That albeit in this Case he ought to have Counsel, yet making Protestation, That at all times he might amend his Answer, he would answer in person, and so he did, Numb. 19  
Anno 1 Car. 1. The Duke of Buckingh. being accused by the Commons of Misdemeanours, and Copies of the Impeachments, and Answered by Council in this manner, viz. Die, etc.  
The Duke being in his Place, and standing, his Council came to the Bar, and then read the Duke's Answer, as it was penned in writing. Yet sometimes in Cases of Misdemeanours, when the Party accused hath demanded the Copies of the Articles, and Council, and Time to answer, the Parliament hath compelled them to make a present Answer without Council; but this is rare, and I have seen but one Precedent of it.  
Anno 5. R. 2. 
The Mayor and Commonalty of Cambr. accused.  Die Animarum, Numb. 45. The Mayor, Bailiffs and Commonalty of Cambridge were accused by etc. For that they in the late Tumults and Wars confederated with other Misdoers, did break up the Treasury of the University, and compelled the Chancellor and Scholars to release to the Mayor all their Liberties, 
The Parl. hath compelled a present Answer in Misdemeanours, and without Council.  and all Actions, etc. In Num. 46 & 47. Several Writs were sent to command them to appear. They appearing at the Day, and answering to such Articles as were objected by the King's Council, and delivering in the two releaseth which were cancelled Numb. 48. Then the Chancellor and Scholars exhibited divers Articles against them by way of Petition. Upon the reading whereof, it was demanded of the said Mayor and Burgesses what they would say, why their Liberties should not be seized into the King's hands as forfeited? And they required Copies of the Articles, and Council, and Respite to answer, Numb. 54, 55.  
To the Copy of the Articles, it was answered, That inasmuch as they had heard them read, it should suffice; for by the Law they ought to have no Copy. And touching Council, it was said, That wherein Council was to be had, they should have it; and therefore they were then to answer to no Crime nor Offence, but only touching their Liberties, Numb 56.  
After many dilatory Shifts, the said Burgesses submitted themselves to the King's Mercy, touching their Liberties, only saving their Answers to all other matters, Numb. 57  
And the King by assent of the whole Parliament, granted the assize of Bread, and all weights, Measures, etc. to the Scholars, and to the rest of the Burgesses, yielding and increase of Rent, 59 6. And there is no farther proceeding against them for other Crimes; yet this also proves Counsel ought to be allowed in Cases of Misdemeanour.   

§. Next to the Answer follows the Replication; 
The Replication next which belongs to him or them that sue.  and that in my opinion belongs to the Party whose Suit it is. If the Commons impeach any man, it belongs to them, if they will reply. And to this end, either they are all, or some of them to be present when the Party makes his Answer, and to consider thereof apart by themselves, and to reply if they see cause. Or else a Copy of an Answer is to be sent them; and their Replication expected before any other Proceedings be. If they do not reply, the Lords may: But if the Articles against the Party be so drawn ex parte Domini Regis, than it belongs to the King and the Lords alone: And the Commons can neither reply, nor de Jure demand the Party to be put to his Answer. All this will appear in the ancient Precedents which follow.  
Anno 50 E. 3. They impeached Rich. Lions for procuring Patents and Licenses, etc. to carry, etc. to other places than to Calais. For divers other new Impositions upon Wools, etc. For levying the same to his own use, without view of a controller, for 20000 Marks in London, for the King, and causing the King to repay 30000 Marks: For buying of Debts of the King at the 20th. penny and less, and causing the King to pay the whole Debt. In general words, For many Extortions, etc.   

His Answer is,  
First, to the third part, and pleads Not Guilty; which he is ready to prove: To which nothing is replied.  
To the several Impositions, He confessed he levied 12 d. on every Sack of Wool licenced, to his own use, but by express Commandment of the King, and Assent of the Merchants. And for other several Impositions, That he had paid them wholly to the King's Chamber, and fully accounted for the whole year.  
Unto this part of his Answer also there is no Replication recorded, it is drawn up so briefly; yet these which follow show somewhat of what was replied, viz. And it was said unto the said Richard, that he should bring forth his Warrant by what Authority he did these things. But he showed no Warrant in Parliament under the King's Seal, nor otherwise; but only he said he had Command from the King himself and his Council to do it. Now whether the Lords willed Lions to show forth his Warrant upon the Reply of the Commons, or otherwise, it appears not by conjecture out of other Precedents.  
Eodem Anno, 
Impeachment against the L. Latymer.  The Commons impeach the Lord Latymer, That contrary to the Proclamation upon the last Truce with the French, he and his Lieutenants and Officers have taken divers Victuals by force, without paying for the same, and that he extorted great Fines and Ransoms of divers Persons and Parishes of Betherel in Britain, whilst he was Captain there, for which he hath answered nothing to the King. And for the Loan of 20000 Marks made to the King by him, and Richard Lions, to transport Wool, etc. And also through his ill Government, the Fort of St. Saviour's in Normandy, and the said Fort in Normandy, called Betherel, and many more are lost. And also that he, of his own Authority, discharged Spies and Fellows imprisoned by the King, wherein he encroached to himself Power Royal.   

This is the Effect of the Impeachment; 
His Answer.  the Answer follows.  
First, He said, That saving to himself so much as aught to be saved unto him, as one of the Peers of the Realm, as well in giving Judgement, as otherwise in time to come. And if it please the King and Lords here Assembled, he will willingly give his Answer unto him who will in special object any other thing against him.  
It should seem that the Commons advised hereon; for it followeth, Et puis presents. Forasmuch as no person would in special openly accuse the said Lord, vouching the said things in Parliament, but that the Commons would maintain the said Judgement in common, he answered to each Particular.  
1. 
His Answer to each Particular.  Touching the Ransoms that he hath been before impeached for, and the Sums of Money he received, it appeareth that he owed the King 2000 l. which he confessed, and submitted himself to the King's Grace for the same. And soon after this, the Commons having heard this Answer of Submission, prayed the Lords that Execution might be had of the said 2000 l. presently against the said L. Latymer, as a thing passed by the said Submission being made by him as aforesaid; for it shows not any agreement made with the King, nor any Pardon, or other Discharge.  
And the Lords answered, That his Answer should be reported to the King, and thereupon Right shall be done for the King.  
2. Touching the Acts done by his Lieutenants, he said, That he is altogether innocent, etc. For he was then in England, by the King's Command, and he had no part thereof, etc. And the Commons thereunto replying, said, That although he be innocent, yet his Lieutenants received it in his Name; and therefore prayed he might answer to the King for his Lieutenants, if they be not able, etc.  
3. Touching the Loans of 20000 Marks, he absolutely denied he had any share or advice therein, he made in a manner a Negative Answer to all the rest; offering Proofs: whereupon witnesses were examined, but no other Replications of the Commons mentioned.  
Eodem Anno 50 E. 3. W. Ellis was impeached by the Commons, 
W. Ellis impeached.  for that he being Farmer to the King of the Petty Customs in Yarmouth, and Deputy-Farmer to Rich. Lions, of Tonnage and Poundage, etc. he extorted several Sums of Money from the Merchants, and particularly 33 l. from a Scotish Merchant at Kirkbread, who was driven in thither by a Tempest, but unladed no Merchandise there.  
The said Ellis answered in general, 
His Answ.  He had never taken any thing of the said Merchants by way of extortion; which he was ready to prove.  
The Commons brought in four Witnesses, 
The Reply.  who justified the Extortion upon Oath, and then demanded Judgement. And W. Ellis rejoined to this Replication, confessed the Receipt of the 33 l. and avoided the Extortion.  
Eodem Anno, 
The Lord Nevile impeached.  John Nevile was impeached by the Commons, for that he, as Officer to the King, and one of his Privy Council, had brought divers Tallies of Assignments made by our Lord the King, unto divers persons unto whom he was Debtor, and had thereof due allowances in the Exchequer; but the Parties had of him little or nothing; and especially of the Lady Rovensholme, who is deceased, and of Reignald Love.  
And after he was impeached, for that in this late Voyage into britain, in the King's Wages in great number of Men at Arms and Archers, for which he accorded with the King, and those he carried with him were not sufficient, come Garcone & autres lieux: And yet he received full payment in deceit of the King, and that by his default many Forts were lost in Britayn.  
And also at his passing at Southampton, his Men did much Mischief to the Country, as if they had been Enemies.  
To the First, Touching the Buying of a Debt due by the King to the Lady Ravensholme, he made a very good Answer, and denied that he bought any Debt of Reignald Love for gain. And the Commons being present, desired that Love might be examined therein: and he was examined, and cleared the Lord Nevil thereof. And thereupon Michael de la Poole, and W. de Winged being present, did expressly affirm, That the said Love had acknowledged before him and many others, the Day before, That the said Lord Nevile had bought the said Debt for gain, etc.  
And the said Reignald Love replying to their Affirmation, said, That he never spoke any such Words to them or any other. Et tant est autres apres, etc. And soon after the said Knights and Commons affirming that the said Reignald did not only speak those Words, but also prayed that it might be showed in open Parliament, the said Reignald confessed, That, etc. and was therefore Committed, etc.  
Touching the Second Point; The L. Nevile showed, That he made full Muster of his Men, etc.  
Touching the Third, The Pillaging of Soldiers, he said, That he did none; and if any were done, let the Malefactor's answer. And unto this it was said by the said Lords of the Parliament, That it was reason, sith the King paid the Soldiers their Wages, that the Soldiers should answer for their ill Deeds, and the Captains should answer for themselves.  
And thereupon the Commons prayed Judgement against the Lord Nevile, and that he might be put out of his Office about the King.  
Touching the Articles of the Lady Ravesholm, It was awarded in Parliament, That the Lord Nevile should make Restitution unto her Executors. Quaere hoc.  
That he be banished according to the quality of his Offence, as others have been, etc.  
I have translated this of the Lord Nevil almost ad verbum; it needs no Exposition.  
The Commons were present at the L. Nevil's Answer, and desired that one Witness whom he had brought with him, and who gave them Information of the Complaint touching the buying of the King's Debts, might be examined. And examined he was in the presence of two Knights of the Parliament, and they did contrary his false Answer; and afterwards all the Commons came and testified against the Witness.  
This is sufficient to prove, That the Commons may Reply, and are to be present at the Answer, or have a Copy thereof sent them: But the Commons did not Reply unto the Lord Nevil's Answer.  
Touching the Pillaging of his Soldiers, for aught appears, the Lords Replied to that part.  
Primo Car. 1. 6 Febr. The Commons impeached the Duke of Bucks, and Declared against him in writing. The Commons demanded a Copy of his Answer, that they might Reply unto it, and it was debated at a committee, whether the Commons might Reply or no? which was resolved in the Affirmative, upon view of Precedents, and reported to the House; and then a Copy was sent to the Commons.   

Thus much touching Replication by the Commons.  
Where the Articles against the Delinquents are ex parte Dom. Regis, there the Commons cannot Reply, nor Demand Judgement; for the Suit is the King's, and not theirs.  
Anno 10. R. 2. Upon Complaint of the Commons, Jo. Lord Comeniz and W. Weston were put to their Answers; but the Articles were exhibited the part le Roy. The Complaint of the Commons was general; and though the Commons be there present at their Answer and Judgement, yet they did neither Reply nor Demand Judgement.  
The King's Steward before whom they were Arraigned, Replied, as shall appear by the Precedent at large.  
In like manner the Commons demanded that the Bishop of Norwich and others might be put to their Answer, and the Articles were drawn the part le Roy. And the Chancellor replied to their Answer, the Commons not once interposing therein.  
5 R. 2. The Chancellor and Scholars of Cambridge accuse the Mayor, Bailiffs, and Commonalty of Cambridge, of many Outrages and Misdemeanours. They appeared and answered. The King's Council replied, Numb. 49.    

CHAP. IU.  
The next Considerable Part in Judicature after the Answer and Replication, is the Proof by Examination, First, Of Witnesses.  
THe Practice at this Day is to swear the Witnesses in open House, 
Witnesses.  and then to examine them there, or at a Committee, either upon Interrogatories agreed upon in the House, or such as the Committee in their discretion shall demand.  
Thus it was in Ancient Times, as shall appear by the Precedents, so many as they are; They being very sparing to Record those Ceremonies, which I shall briefly recite, and then add those of later times.  

Witnesses produced by the Commons. 
Witnesses by the Commons.   
Anno 15 R. 2. The Lord Latymer having 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, etc. 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 Usury, out of the Customs of Wool to Calais. Whereto the Lord Latymer answered, He never heard of that Proffer; and others swore the said William Walworth did make the said Proffer to them.  
Anno 15 R. 2. The Commons produced four Witnesses to prove their Complaints against Ellis, Les queux Examinees in Parliament, said, etc. 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 Commons complained, and Ellis took no exception against them.  
And afterwards being put to his Answer upon their particular Complaints for wrong Imprisonment, etc. Ellis said, That they betrayed him as he was coming to London, and so he caused them to be committed, and the said Complainants affirmed the contrary upon Oath, and it was testified expressly by divers sufficient men, That, etc. agreeing with their Oath.  
Eodem Anno John Peecher being accused 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, affirmed there, That, etc. to the contrary, and then Judgement 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 desired that the said Reignald might be examined. And the said Reignald being charged upon his Allegiance to tell openly before them the full Truth, saith, clearing the Lord Nevil; but afterwards he confessed against him. He was examined 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 inquire of the behaving themselves in their Offices.  
1 R. 2. Alice Pierce Not Guilty, and that she would prove by Testimony of the late King's Household, whom she named. The Offence being for procuring E. 3. privately to revoke an Ordination of his Council.  
The Lords gave her Day, and in the mean time named a Committee to examine Witnesses.  
The Committee were the Duke of Lancaster, 
A Committee for Trial of Alice Peirce.  Earls of Arundel, Cambridge, Northampton and of March. And divers Witnesses who are named, were sworn upon the Holy Evangelists, and diligently examined upon the Articles objected against her.  
The Lord Beauchamp was sworn and examined; and the Duke of Lancaster being one of the committee, was diligently examined before the rest of the said Committee, but not sworn ad testificandum. Earls and Dukes are not sworn.  
A Jury of the Household was impanelled for her Trial before the said Committee.  
The Order made by the Lords for the Examination and Trial. Per l'assent Prelat & des Seigneurs du dit Parliament ordeint fuit que testes Articles serounttrious per testimonies, & per inquest d'eux que seront de Hostel, de dit Appeal & que le verite purroit mieux estre conus.  
By virtue of this Order, the said Committee 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. etc. And so names eight Knights, and nine Esquires, queux fuerint jures adire le verity si le dit Alice fuit culpable de les Articles avant dits, ou nemy.  
Note, This is the only Jury I find Recorded for Misdemeanours 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 impanelled 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 Judgement not to be given until the Commons demand it.  
For Proof that the Witnesses ought to be examined in their Presence, vide 50 E. 3. The Impeachment of the Lord Nevile, where Richard Love was examined in presence of two Knights of the House of Commons, who contraried his Testimony, Numb. 44.  
The Proof that a Delinquent may put himself super Patriam, vide 4 E. 3. Where the Lord Berkley, who waved his Peerage, was tried by a Jury of Gloucestershire 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 Information ex parte Dom. Regis, and not upon the Impeachment of the Commons; for than they had been Patria sua. And as the Party may put himself super Patriam, so he may demand Battle: 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 resurgeram.  
Note, That the Commons had accused them— also. Vide a Herald Parl. lib. Mayleress. And thereupon it was testified openly in Parliament, That our Lord the King had expressly said that day, before the same Lord then present in Parliament, 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 Commission.  
He denied the procuring thereof, and that he would not have used the said Commission without the King's Commandment, and that he told the King so much, and that the King commanded him not to intermeddle therein. Whereunto 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 about 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 Judgement passed on him for the same, and he adjudged a Traitor. Et qui non vult.  
Anno 18 E. 4. George Duke of Clarence was Arraigned in Full Parliament. 
George Duke of Clarence arraigned.  There is no mention thereof in the Roll, but in a Manuscript of that time, written by a Friar of Croyland. Tam testis est vera, & disceptatio ea habita inter duos tantae humanitatis Germanos. 
No man questions the Duke but the K. none answers the King but the Duke.  Nam nemo arguit contra Ducem nisi Rex; nemo respondet Regi nisi Dux. Introducti autem erant nonnulli de quibus à multis valde dubitatur, an Accusatorum an Testium officiis sunt functi utraque enim officia in eadem causa eisdem personis non congruunt. Delevit enim object a Dux ille per Justificationem, asseruit, si exaudiri possit, manuali defensione teneri causam suam. Quid multis numeror Parliament les reputantes audit as Informationes sufficere formarunt in eam sententiam damnationis quae ab Henrico Deuce Buck. pro tempore noviter creato Anglorum Seneschallo prolata est, postea dilata est executio, quo ad usque Prolocutor Communitatis in superiorem Cameram cum sociis suis adveniens, novam ejus conficiendae rei requisitionem fecerat, & consequenter infra paucos dies factum est id qualecunque genus Supplicii secreti infra Turrim London. utinam sine malo, Anno Dom. 1418. Regni vero Regis E. 4. 18. per Anonimum libris Cotton.  
Here let us examine for what illegal proceedings the Commons desired to have the Cause tried again. The Author saith, Nemo arguit contra Ducem nisi Rex. 
Against Law that the King should enforce Testimony against a Delinquent.  This the Commons held to be against Law, That the King himself should enforce either Article or Testimony 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 returned, 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 beyond the Seas, 8 May 1626. The said Earl petitioned the Lords, That seeing several points of that Charge are grounded 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, etc. he desired their Lordships to put his Majesty in mind thereof, for the declining his Accusation and Testimony▪   

9 Maij, These Questions were proposed to the Judges.  
1. Whether in Treason or Felony the King's Testimony is to be admitted, or not?  
2. Whether Words spoken to the Prince, who afterwards is King, make any alteration in the Case?  
And the Judges were to deliver their Opinion therein on the 13th. Day of the said Month of May.  
And on Saturday Morning, being the said 13th. Day, the Judges were desired to deliver their Opinions.  
The Lord Chief Justice said, They appointed to meet and to consider thereof; and Mr. Attorney desired to know the time of their Meeting; and before that time he brought them a Message from the King, 
A Royal wise Answer.  viz. That his Majesty was so sensible of his Honour, that he would not suffer the Right of his Crown (which may justly be preserved) to be damnified in his time. That they might deliver their opinion in any particular Questions concerning the Earl of Bristol, but not in the general Questions whereof his Majesty could not discern the consequence which might happen to the prejudice of the Crown. Every particular Case varying according to the circumstances.  
4 E. 3. The Articles were read against Roger Mortimer; and it followeth thus; Wherefore our Lord the King doth charge our Earls and Barons, Peers of this Realm, That forasmuch as these touch him principally, and all the People of this Realm, That you do unto the said Roger Mortimer right and lawful Judgement, such as appertaineth to such an one to have, who of all the faults abovesaid, is very guilty, as he believeth. And for that the said things are notorious and known to be true unto you, and to all the People of the Realm.  
This was all the Proof produced against Roger Mortimer. The Lords hereupon judged him. But afterwards, Anno 28 E. 3. Numb. 10. they reversed it as erroneous: so that although the King's Testimony, confirmed by the common Fame, was 4 E. 3. received against Roger Mortimer, yet it was afterwards adjudged Nul Accusament in the 28th. of the said King E. 3.  
In that Parliament of 18 Jac. divers Witnesses were examined in open House in the Causes of Mompesson and the Lord Chancellor, upon Interrogatories agreed on beforehand, and divers at a Committee. And it was resolved, That none might be examined upon any thing that might accuse. Whereupon the Earl of Southampton, one of the said Committee, signified, That a Scruple did arise, Whether Sir Ralph Horsey should be examined what Bribe he gave to the Lord Chancellor; and upon the Vote, it was agreed, he should, dissentiente Comite Dorset.  
Eodem Anno, The Lords did find that the Testimony of divers of the House of Commons was necessary, touching the Complaint against Mompesson, and therefore sent a Message to this effect.  
The House of Commons, before their Complaint exhibited against the Lord Cobham and Doctor Feild, for a Bribe concerning Egerton's Case, 18 Jac. examined one Davenport, but not upon Oath. The Lords, when they had examined Davenport, found that the Case was not so foul as he related it unto the Commons, and therefore sent his Examination again unto them, and then punished him for his false Relation.    

CHAP. V.  
The Judgement.  
FIrst, Unto whom the Judgement belongeth, and the King's Assent and of the Presence of the Spiritual Lords, the Commons and the Judges.  
Secondly, The Judgement itself, and by whom it was demanded, and by whom rendered.  
In making of our Ancient Laws, the Commons did Petere the Lords Assentire, and the King Concludere.  
So in Judgements on Delinquents in Parliament, 
The Commons accusare & petere.  the Commons might accusare & petere Judicium, the King assentire, and the Lords only did judicare.  

§. 1. That the Judgement belongeth only to the Lords, appeareth by all the old Records that I have seen; prout 4 E. 3. against Mortymer, The Earls, Barons, and Peers did Award and Judge by assent of the King, etc.  
7 H. 4. In the Case of the Earl of Northumberland, Protestation was made by the Lords, That the Judgement belonged unto them only.  
For the clearing of this Point, That the Judgement belongeth to the Lords only, vide the Protestation of the Commons 1 H. 7. which excludes the Commons from any Right thereunto, viz.  
On Monday, Novemb. 3. The Commons made their Protestation in manner as they did in the beginning of this Parliament and then further declared to the King, That no Record in Parliament be made against the Commons, That they are or shall be Parties to any Judgement given, or hereafter to be given in Parliament. Unto which it was then answered by the Archbishop of Canterbury, by Command of the King, That the Commons are Petitioners, and not Demanders; and that the King and the Lords have ever had, and of Right shall have the Judgement in Parliament in manner as the Commons themselves have declared, saving in Statutes to be made, and in Grants of Subsidies, and the like, though to be done for the common profit of the Realm, the King will have especially their Advice and Assent: And that this Order be held and kept at all times to come.  
This excludes the Commons from all Right to Judgement: But whereas it faith, the Judgements in Parliament belong only to the King and Lords, That is to be understood touching the King's Assent only, as appeareth by the Replication of the Parliament in this Point in 2. H. 5. which was thus:  
In the Parliament at Leicester, 2 H. 5. Numb. 11. Tho. Earl of Salisbury Petitioneth to reverse a Judgement in Parliament against John Earl of Salisbury, his Father, in 2 H. 4. and one of the Errors assigned was, for that the Judgement was not given by the King, but by the Lords Temporal only: whereupon the Earls of the Parliament, at the King's Commandment, gave Copies of the said Judgement of 2 H. 4. and of the said Errors assigned unto the King's Sergeants at Law then present. Ad sequentem solutionem Juris Regni in hac parte avisarentur: Super quod Servientes ad Legem crastino die, Domino Regi, ac Dominis Spiritualibus & Temporalibus praedictis hoc in Parliamento petierunt scrutinium pro Domino Rege in hac parte. Quibus dictum erat ex parte Domini Regis, Quod ipsi procederent ulterius absque aliquo scrutinio habendo quoad declarationem & judicium super supradicta, etc. And afterwards Day was given at the next Parliament which was held at Westminster, eodem Anno 2 H. 5. In which Parliament the said Judgement of 2 H. 4. being examined and discussed at full, videbatur tam dicto Domino nostro Regi, quam etiam Dominis suis antedictis, etc. quod idem Judicium & Declaratio praedicta versus eundem Johannem, etc. sunt & fuerunt bona & legalia. Declaratio & Judicium. Per quod cousider atum fuit in praesenti Parliamento per praedictos Dominos tunc ibidem existentes, de assensu dicti Domini Regis, quod praefatus nunc Comes nihil capiat per Petitionem aut Prosecutionem suam praedictam; Et ulterius tam Domini Spirituales, quam Temporales praedicti, Judicium & Declarationem praedictam versus dictum Johannem quondam Comitem Sarum, ut praemittitur habita sive reddita de assensu ipsius Domini Regis, asserunt fore & esse bona & justa & legalia: Et ea pro hujusmodi ex abundanti decreverunt & adjudicaverunt.  
Out of the last recited Precedent of 2 H. 5. may be observed, That the Temporal Lords by Assent of the King, may give Judgement on Offenders for capital Crimes; and therefore, Whereas it is said, 2 H. 4. That the Judgement belongs only to the King and Lords, that is herein explained.  
The King's Assent ought to be to Capital Judgements, 
Observe.  and the Lords Temporal to be only Judges therein, and not the Lords Spiritual: But in Misdemeanours, the Lords Spiritual and Temporal are equal Judges, and the King's Assent is not necessary, as shall appear.   

§. 2. In what Cases the King's Assent is necessarily required.  
Touching the King's Assent, it is expressed in divers Judgements on Capital Offences, 
In what Cases the King's Assent is necessarily required.  4 E. 3. against Mortimer.  
Anno eodem against Simon de Bereford. And there be divers other Judgements that year of this Nature, wherein the King's Assent is not expressed; 
Peers de la terre.  but against John Matrevers Les Judices Peers de la terre, & Judges de Parliament adjudgent & agardant que le dit John be drawn, hanged, etc. not mentioning the King's Assent. And there are two other Precedents of the same Nature briefly Recorded; Estre ou tiel Judgment est accorde que soit sait de Burges de Bayons & John Dever. And Item outiel Judgement est accorde de Tho. de Gurney & W. de Ogle, not mentioning by whom the said Judgements of— Death were given.  
2 H. 4. The Judgement against the Earl of Salisbury and others, for Treason, is by the King's Assent; and so is the Judgement of H. 4. against the Earl of Northumberland, and 11 & 21 R. 2. upon those several Appeals. In all which the King's Assent is recorded. And so the Articles objected against Simon de Burley, without the King's Assent, and against his will, which I shall here recite.  
Item, The aforesaid Dukes, Earls of Arundel and Warwick.  
Anno 50 E. 3. Richard Lions pleading a Warrant from the King, which he could not show, followeth thus, etc.  
And Tho. Mortimer continueth his traitorous purpose, and by force of men took and imprisoned divers men your Liege, etc. Amongst others, Simon de Burley Knight, and him they carried in the Parliament at Westminster, held the Morrow after the Purification of our Lady, in the 11th. year of your Reign, and there were surmised against him divers points of Crime and Treason, and thereupon was demanded of every Lord there present in Parliament, his Advice of the said Simon, touching the said Crime. And afterwards the said Dukes and Earls of Arundel and Warwick would know your Advice Thrice Redoubted Lord. You answer plainly, That the said Simon de Burley was not guilty of any the said Points, and then they took upon them traitorously to have constrained you to have given your Assent to the Judgement which they have purchased against the said Simon upon the Points aforesaid. And you Thrice Redoughted Lord would not consent to any Judgement to be given against the said Simon. And yet notwithstanding the aforesaid Dukes and Earls took upon them Royal Power in prejudice of you, and derogation of your Crown; and without your Assent, and against your Will, and in your Absence, and in the Absence of many other Peers of Parliament, and without their Assent, and against their Will, awarded that that said Simon should be drawn, etc. and thereupon caused him to be beheaded, but traitorously against your Crown, Peace and Dignity.  
This I have recited at large: Unto which the Duke of Gloucester made no Answer, being dead before▪ the said Earl of Arundel pleaded the King's Pardon, which was not allowed him.  
The said Earl of Warwick confessed all the Articles in the said Appeal, and put himself upon the King's Grace, and the said Tho. Mortimer could not be found.  
This Parliament begun at Westminster Die Lunae post Festum Exaltationis Sanctae Crucis, and was adjourned to Shrewsbury. And on Tuesday 28 January, the Parliament there showed unto the King how that they in the said Parliament at Westminster had accused and impeached John de Cobham in the 11th. year of the King's Reign, with others convicted in this Parliament, accroaching to himself Royal Power in Judgement. Awarded that the Liege's of the King, Simon de Burley and James de Barners Knights, should be Drawn, Hanged and Beheaded without Assent of the King, and against his will, and in his absence, and in the absence of many other Peers of Parliament, who with held themselves, and would not sit in such Judgement, and against their will, traitorously against the Peace of the King, his Crown and Dignity.  
And prayed our Lord the King to cause the said John de Cobham to join in this present Parliament to answer to the things aforesaid, and to ordain such Judgement against the said John de Cobham as the Cause demands. The said Jo. de Cobham was brought, etc. And touching the said Judgement awarded against the said Simon and James, the said Joh. de Cobham said, That it was told him by them who were present then, That it was the King's Will to make such Judgement against the said Simon and James convicted of the said Judgement and Award which he had so given against the said Simon and James, notwithstanding his Answer; Whereupon, etc. Judgement was given against him, and he adjudged a Traitor.  
Here is objected, That the Judgement against Simon de Burley, was given by the Lords without the King's consent. Secondly, Against his Will. Thirdly, In the King's Absence. Fourthly, In the Absence of many of the Peers, and against their wills.  
Touching the First, viz. The King's not Assenting.  
It may be Objected, That the Lords gave Judgement against Weston, 1 R. 2. without the King's Assent, but yet not against the King's Will; for they respited the Execution until the King might be informed thereof. And the Reason then given for the said Respite, was, For that the King is not yet informed of the manner of this Judgement. But whether the Lords proceeded to that Judgement against Weston, before they informed the King, because the King's Assent is not necessary, or for that it being the last Day of the Parliament, they had no leisure to inform his Majesty thereof, let the Reader judge: yet it seemeth to me that the King's Assent is necessarily required in Capital Causes and Judgements, for these two Reasons:  
First, For that all Precedents mention the King's Assent in Capital Judgements, except that one against Matrevers, 4 E. 3. which might be the omission of the Clerks, who drew up the Roll; for it is said directly afterwards in the said Bill, Numb. 6. That the Peers gave those Judgements in the presence of our Lord the K. and by his Assent: And except that of 1 R. 2. against Weston, in the last Day of the Parliament, and it was 3. in the Afternoon that Day before the Lords had determined what to do in that Business; so that it may be the Lords were prevented of time herein, to have which, they respited Execution, for that the King was not informed of the manner thereof.  
Secondly, For that the Lords Appellants 11 R. 2. who had then great Forces about them, were so earnest with the King for his Assent to the Judgement against Burley, That the Duke of Gloucest. told him, 
A bold Saying. This Duke of Glouc. was many years after imprisoned for this at Calais, & there died in his Bed.  as appear by his own Confession, 21 R. 2. That if he would be King, he should not entreat for Simon de Burley, to save him from Death. And in the end, when his Majesty would not assent to their Judgement, yet they wrought so, that Messengers were sent unto him, and brought word (not before they gave Judgement against Simon) and the King's Assent is mentioned in the said Judgement. All which the said Lords would not have done, had not the King's Assent been necessary.  
And afterwards in the Parliament of 21 R. 2, The Lord Cobham being accused for giving Judgement without the King's Assent, answered, That the Messenger brought word, That his Majesty had assented: And yet because he did not gainsay that the King did deny his Assent, the Commons immediately demanded Judgement. All which seem to imply, That the King's Assent is necessary in Judgements upon Capital Offences.  

Touching the Second, viz. Judgement against the King's Will.  
It is all one with Judgement without the King's Assent.   

Touching the Third. viz. In the Absence of the King.  
The Judgements of this kind are good notwithstanding, so as the King doth assent; as that of Simon de Burley, 11 R. 2.   

Touching the Absence of many of the Peers.  
That is to say, of many of them, and against their will; This cannot invalid their Judgement, so as the greater number of the Lords be then present (accounting the Proxies of the absent Lords) for it is not material whether some Lords do absent themselves, or disassent. The chiefest Matter is the Assent of the Lords who are present either in Person or by Proxy. The others are to Answer for their Absence without a just Cause shown, or a proper Assent.   

§ 2. In Judgement on Misdemeanours, 
In Judgement on Misdemeameanors the King's Assent is not required.  the King's Assent is not required.  
50 E. 3. The Lords judged divers Commoners for Misdemeanours, and the King's Assent not mentioned; as Richard Lions, William Lord Latymer, a Privy Councillor, John Lord Nevil, a Privy Councillor, Jo. Peecher, and others. The King was then sick at his Manor of Eltham, and on the last day of the Parliament, the Lords, Prelates and Commons came before him there, and he heard the Petitioners, and their Answers for most part read, and also Judgement given on the Privy Councillors and others, dont ils se leyron franchement le respons de mesme nostre Seignior le Roy, Numb. 15. Which shows that the King had not assented to them.  
7 R. 2. The Bishop of Norwich was accused of Misdemeanours, and judged in 10 R. 2.  
The Lord Chancellor Mich. de la Poole was judged by the Lords for Misdemeanours, and Speed fol. saith, That the King was much displeased thereat; for it appeareth he gave not his consent. And it was one of the Questions demanded of Tresilian and others, 11 R. 2. Whether the Judgement were erroneous, or not? and resolved to be erroneous; yet it was not objected against any the Lords Appellors that the Judges proceeded without the King's Assent.    

§. 3. The King's Presence in Parliament.  
In 4 E. 3. The King commanded the Lords to do right and lawful Judgement on Mortimer. The which Earls, Barons and Peers having examined the Articles, came again before the King, and said, etc. Ibidem. The King commanded them to give Judgement on Simon de Bereford. The which Earls, Barons and Peers came again before the King, and said, etc. And so the King was present at their Judgement, but not at their Consultations.  
10 R. 2. The King was present when the Commons accused the Lord Chaneellor William de la Poole of Misdemeanours, but he was not present at his Trial; for he demanded if he ought to answer sans presence de dit Roy, being Chancellor? and in the end he answered notwithstanding.  
21 R. 2. In the cruel Parliament of the Lords Appellants, the King was present at the Parleys: Non constat whether he was present at the Consultation of the Lords.  
5 H. 4. The King was present when the Earl of Northumberland was to be tried upon his own Petition, and so were the Commons. And the King delivered the Petition to the Judges for their Opinion; but the Lords claimed their Right: But this was on the Wednesday, and the Friday following the King and Commons met there again, and the Chancellor rehearseth, First, What was done the first Day, and the Lords having had competent deliberation on the said Petition, and having heard and considered the Statute, They adjudged, etc.  
It is plain the King was not present at this Consultation of the Lords, though at their Judgement.  
7 H. 4. He commanded the Lords to advise what manner of Process shall be made, and what Judgement shall be rendered against Henry de Peircy Earl of Northumberland; and a Week after the Lords declared their Opinion to the King. And it appeareth in that Roll very clearly, that all Evidences and Examinations were shown and taken by the Lords in the absence of the King, and their Advice also agreed on in his Absence, but the Judgement reversed in his Presence.  
To conclude, The King may be present if he please, at the Parties Answer, in Capital Causes, and at the Judgements given, prout, etc. But he was never present at other times of Proceeding against the Delinquent, nor at any Answer for Misdemeanours, for aught I have yet seen.   

§. 4. The Presence of the Lords Spiritual. 
The Lords Spiritual.   
In Cases of Misdemeanours, 
In Cases of Misdemenor they may be present.  the Lords Spiritual have ever been present, but never in Offences Capital. This is so generally-received of all men, that it is not worth the Labour to prove it; yet I will vouch the Precedents: For it may be, out of one or other of them somewhat may occur worthy the Observation.  

In Misdemeanours.  
In 1 R. 2. Alice Peirce was brought before the Prelates and Lords in Parliament, to Answer, and the Prelates and Lords did ordain.  
42 E. 3. Numb. 20, etc. John at Lee was put to Reason before the Prelates, Lords, Dukes, Earls, Barons, and some of the Commons.  
7 R. 2. Jo. Cavendish accused the Lord Chancellor of Bribery, before the Prelates and Lords in Parliament. The Chancellor Answered before the Prelates and Lords.   

In Offences Capital. 
In Cases Capital may not be present,   
In 4 E. 3. The Earl of Kent was brought before the Counts, Barons & autres Grandees and Nobles en mesme Parliament, etc. for Treason dors. Numb. 38.  
Eodem Anno, The Articles of Treason being read against Mortimer, the King charged les Counts & Barons, les Peeres de son Realm, to give Judgement. And Judgement was given per les dits Counts, Barons & Peers come Judges deal Parliament.  
Item, The King commanded les dits Counts & Barons Assembled in Parliament, to give Judgement on, etc. and so were four others tried in the same Parliament, all for Treason, and not one word of the Prelates, either when the Articles were read, or at the Judgement.  
6 E. 3. Numb. 11, 12. Post Festum Sancti Gregorii, The Parliament being commanded to consult of the keeping of the Peace, and Punishment for the breaking thereof, the Prelates departed, pur ceo que aviz fuit dits Prelates, que ne attinet pas a eux consuler de guard de la Pees ne de chastisament de tiel; yet afterwards, when they heard what was ordained touching those Malefactors, for the apprehension of them by Hue and Cry, etc. to bring them before certain Commissioners to be tried according to Law, the Prelates gave their Consents also to the Act, and added also Excommunication by the Assent of King, Lords and Commons.  
Anno 10 R. 2. The Commons prayed That such as gave up Forts, puissent estre a respons cest Parliament. Et selon leur desert puis per guard les Signors & Baronage. And thereupon John Gomeniz & William Weston were brought before the Lords aforesaid in full Parliament, etc. It is to be understood before the Temporal Lords; for the Bishops are never comprised in the Word Baronage.  
Anno 11 R. 2. Divers Lords and others being appealed of Treason, & other misdemeanours, the Prelates absented themselves, during the Trial having first made Protestation saving their Right to be present in Parliament. Regni more solito considerare, 
The Protestation of the Bishops forever.  tractare, ordinare, statuere, definire & caetera excercere, cum caeteris Paribus etc. Verum quia in praesenti Parliamento de nonnullis materiis agitur, in quibus non licet nobis juxta Canonum Sacrorum instituta quomodo libet interest, Eo propter pro nobis & nostrum quolibet Protestatur quod non intendimus nec volumus sicuti de jure non possumus nec debemus, nec intenditur nec vult aliquis nostrum in Parliamento dum de hujusmodi rebus agitatur vel agitur, quomodo libet interest, sed nos & nostrum quemlibet in ea parte penitus absentare: Jure Paritatis nostrae, & cujuslibet nostrum interessend. in dicto Parliamento, quoad omnia & singula ibidem excercenda juris, & eorum quilibet statu & Ordine in omnibus semper salvo. Ad haec insuper protestamur & nostrum quilibet protestatur, quod propter hujusmodi absentiam non intendimus nec volumus, nec nostrum aliquis intendit, nec vult, quod processus habiti, & habendi in praesenti Parliamento super materiis antedictis, in quibus nec possumus nec debemus ut praemittitur interest, quantum ad nos, & nostrum quem libet attinet, futuris temporibus quomodo libet impugnentur, infirmentur, seu etiam revertentur.  
This was read in full Parliament and enroled at the Request of the Commons, I mean the Prelates by the King's Command and assent of the Lords Temporal and Commons. Here the Protestation saith (de jure, interest non debemus) but I think it intends that they could not be present by reason of the Common-Law, and by reason of an Ordinance made at the Council at Westminster, in 21. H. 2. By which all Clergymen were forbidden, agitare Judicium sanguinis, upon pain to be deprived both of Dignities and Orders. For surely as I think, they might otherwise have been present both by the Common-Law and by the Law of God. But by such their long constant absence, even from our first Parliaments upon Record. The Lords Temporal have only heard and determined all matters concerning Capital offences, which hath continued in them so long that it is become their Right, etc.  
So that now it will be a wrong unto them the Lords Temporal, if the Bishops do any way meddle with such Judicatures, either touching the Answers, the Replies, the Proofs, or the Judgement. For where they may not adjudge, they may not do any thing as a Judge that doth conduce to judgement. And therefore as heretofore they would be absent, Now they cannot be present whilst the Matter is in hand, but are to be absent altogether dum de hujusmodi materiis agitatur: For some or other matter may happen to be Voted in their presence concerning the Answer, Replication, etc. or concerning the Form of Judicature herein: And by the Voices of the Spiritual Lords that Vote may pass against the major part of the Temporal Lords, who should sustain wrong therein.   

Can they be present, and not Vote?  
I know that at all Assizes and Sessions divers of the Clergy are present till Judgement be given in such Cases; but their Presence cannot prejudice the Judge at the Assizes by Vote, as in Parliament. And at Sessions the Lay and Clergy are equally in Authority to hear and determine.  
Eodem Anno 11 R. 2. A Special Act passed at the Request of the Commons, to make good those Appeals and Judgements, notwithstanding that the Spiritual Lords pur benefit & salvatioun de lour Estate, Cap. 3. & in Parl. Roll, N. 28.  
This Act, I conceive, was occasioned by the Clause in the said Protes 〈…〉 of the Prelates; Ad haec insuper Protest 〈…〉 etc. quod processus habiti & habendi in praesenti Parliamento super Materiis praedictis, in quibus nec possumus, nec debemus interest, ut praemittitur, quantum ad nos attinet futuris temporibus non impugnentur, etc. For there is no such Act to make good any former Judgement notwithstanding their Absence.  
And 2 H. 5. Upon the Petition of the E. of Salisbury, the King & Lords Temporal adjudged the Judgement against his Father in Parliament, 2 H. 4. to be good, notwithstanding that it was rendered without the consent of the Lords Spiritual, which yet the said Earl alleged as Error in his Petition; so that by the Judgement of the whole House, neither the Presence nor Absence of the Spiritual Lords in necessary in such Judgements.  
In 21. R. 2. The first Petition that the Commons offered was, That before this time many Judgements and Ordinances made in the time of the King's Ancestors in Parliament, have been repealed because the Clergy was not present in Parliament at the making of the Judgements; and therefore they desired that the Clergy might make a Proctor with a suffici 〈…〉 to consent in their wants, 〈…〉 Things and Ordinances to be done in this Parliament, Numb. 9  
Whereupon the Prelates and Clergy being severally examined, deputed for them all Tho. de Piercy.  
But in ancient times (in libro Mailicess) Numb. 9 which hath written somewhat largely of this Parliament; It is said, The Pardons granted to the Earls of Arundel, were first repealed by the Assent of the Prelates; for which he blames them much, saying, Dederunt ergo locum Praelati Judicio Sanguinis in hoc facto, ita quod dubitatur à pluribus, si incurrunt irregularitatem pro negotio memorato, unde contigit quod propter istud minus peccatum consequentur, nam exactum est ab iis, vellent, nollent, ut Laicam Personam constituerent, ad Judicium Sanguinis dandum in dicto Parliamento, si necesse foret, & occasio emersisset.  
I have perused all Judgements and Ordinances in Parliament, 
Observ. No exceptions taken for the Absence of the Prelates.  and do not yet find one, whereto any Exceptions were taken for the Absence of the Prelates and Clergy.  
I find an Exception to the Judgement of the Exile, in 15 E. 2. for that it was made without the Assent of the Prelates, who were present, and protested in writing against it. And one of the Errors whereupon it was repealed, is, for that it was made without the Assent of them, who were Peers of the Realm in Parliament.  
But this Repeal was per duress & force, etc. prout 1 E. 3. c. 2. So as this cannot be alleged for a Legal Precedent.  
5 H. 4. The Earl of Northumberland came before the King, the Lords and Commons in Parliament. The Lords made Protestation that the Judgement belonged to them only, etc.  
The Petition being read before the King and the said Lords, as Peers of the Parliament (unto whom such Judgements do of Right belong) considering, etc. adjudged that it was neither Treason nor Felony, etc.  
Note, That all this Parliament, 
Note especial.  the Bishop of— was Chancellor, and he as Chancellor, delivered the Opinion of the Lords when they had acquitted the said Earl of Treason. Whereby it seems that He and the other Bishops were present at the Trial of Life and Death; wherefore though the Record doth here say the Lords indefinitely, we must understand the Lords Temporal only; especially since they claimed the said Judgement to belong to them.  
In 4 E. 3. Judgement was given by the Earls, Barons and Peers, as Judges in Parliament, in point of Treason, where the Prelates are not named; and therefore understood of the Temporal Lords only. This will be explained by the next of 7 H. 4. Rot. Process coram Domino Rege, etc.  
The King commanded the Lords Temporal, Peers of this Realm, to advise what Process to make, and what Judgement to render against the Earl of Northumberland and the Lord Bardolph. The Lords advised thereupon, and reported their Opinions to the King. The said Lords, Peers of the Realm, by Assent of the King, Ordain, That Proclamation should be made for the said Earl and Lord Bardolph to appear, or else to be Convicted by Award of the Peers in Parliament.  
The King did farther demand the Opinion of the said Lords Temporal touching the Archbishop of York; unto whom the said Lords Temporal said, etc.  
The Commons prayed the King that they might have Cognizance, etc. Whereupon, by Advice of the Lords Temporal, the Returns of the former Proclamations were made at the Parliament-door for the said Earl and Lord to appear.  
By Advice of the said Lords Temporal, the Returns of the former Proclamations were examined, the said Lords Temporal considered of the Errors therein.  
By the said Lords Temporal, with the Assent of the King, by their Authority, New Proclamation is granted, the Return whereof is read in full Parliament before the King and the said Lords Temporal.  
Whereupon, the said Lords Temporal then being in the said Parliament, by Advice and Assent of our Lord the King, by their Authority in Parliament, Awarded the said, etc. Convict of Treason.  
Here all was done by the Lords Temporal from the first beginning of the Trial until the Judgement, and yet the Judgement is said to be in Full Parliament, notwithstanding the Spiritual Lords are not once mentioned, nor intended to be present at any time whilst the Matter of Treason was handled.    

§. 5. Touching the Presence of the Commons in Cases Capital. 
The Presence of the Commons in Cases Capital.   
I observe the Presence of the Commons to be necessary at the Parties Answer and Judgement in Cases Capital.  
Now one Reason for the King's Assent, and the Commons presence in such Judgements, may be this; Both King and People are to be satisfied for the death of the Subject; therefore all Trials for Life and Death, are public in the full Assembly of the Court: And how can it be said in Full Parliament, when the Commons, one of the States, are absent?  
For this purpose the Court of Requests (called Camera Alba) was prepared for such Trials, where both Lords and Commons might meet more conveniently; yet though the Commons were present at such times, they had no Voice there. But at their Return to their own Assembly, they considered among themselves, if the Proceedings were Legal; and might come again and show it, and require a Rehearsing of that Cause: as they did at the Judgement of the Duke of Clarence, 18 E. 3.  
Nor are the Commons to be present when the Lords do consider of the Delinquents Answer, and the Proofs, and do determine of their Judgement.  

The Precedents are these.  
10 R. 2. Gomeniz and Weston were brought before the Lords and Commons seaux a la blanch Chambre, and Answered on Friday, 27 Novemb. and there they were delivered to the Constable of the Tower, who was commanded to bring them again the next Morning. In the mean time, the Earls, Barons and Baronet's assembled, and advised from the time that the said Answers were given in Parliament on Friday until part of Saturday to the hour of Three, of the things touching the Answer aforesaid, and then the Prisoners were brought in to the Parliament.  
10 R. 2. Rot. de Pardonatione Haxei, 7 Febr. Anno praedicto, Praedictus Tho. Haxei coram Nobis & omnibus Dominis Parliamenti Nostri existentibus in Alba Camera adductus fuit, & Billa praedicta coram praefato Thoma ibidem, per Praeceptum Nostrum lecta fuit, & Quaesitum fuit per Charissimum Auunculum Nostrum Ducem Aquitain & Lanc. Seneschallum Angliae, à praefato Thoma, si ipse dictum praefatum Communibus tradidit.  
5 H. 4. The Earl of Northumberland was brought to his Trial on Wednesday; Then the Commons were present; but I do not find that they were present with the Lords between Wednesday and Friday, when the Lords advised on the Earl's Petition. This Record mentions not where the Assembly was, Numb. 7. H. 4. Quint. of his Reign.  
After the Lords had Awarded Proclamation against the Earl of Northumberland, and the Lord Bardolph to appear at a Day, or Judgement to be given. The Commons not being acquainted therewith, they came and prayed the King, they might have cognizance what was done touching the said Rebellions of Salop, and elsewhere-within the Realm: whereupon, New Proclamations were made, and the subsequent proceedings were done in full Parliament, in presence of the Commons; and the Record saith, upon the Request of the Commons. A Question hath been often asked, Whether the Commons did heretofore sit at Conference with the Lords? Which I cannot very well resolve; but verily believe, That at all these Arraignments the Commons did sit with the Lords.  
10 R. 2. Gomeniz and Weston were brought before the Lords and Commons sitting in the White Chamber. The Words are, Devant les Seignieurs avant dits en plein Parliament, etc. But the Commons are here intended by the Words en plein Parliament. And so was the Commons Demand, that they may be tried before the Lords.  
No other Records speak whether they did sit or stand.   

In Judgements on Misdemeanours, 
The Presence of the Commons not necessary.   
The Presence of the Commons is not necessary, unless they impeach a Delinquent, prout 50 E. 3. And then they were present at all the Answers of those whom they Impeached, and demanded Judgement.  
And when the Lords had rendered their Judgement against the Lord Latimer, to be prisoner with the Marshal, and to make Fine and Ransom to the King, the Commons prayed the King, he might also be put out of all his Offices, and especially from being Privy Councillor: Which the King granted.  
And when the Lords had determined one part of the Complaint of the Commons against William Ellis, touching a wrong done to certain Scottish Merchants, the Commons prayed a general Enquiry might be made of the Residue whereof they complained; which the Lords granted.  
And when the Lord Nevil Answered, They required that one Richard Love might be examined, to prove that which the said Lord denied, and they departed; but two of the Commons remained, and heard the Examination, and told the Lords, That the said Richard had related it to the Commons otherwise the day before; which the said Richard denied. Then all the Commons came and justified it again, and thereupon the said Richard Love confessed it, and on their Demands was committed.  
This shows what Interest they have in their own Impeachments.  
So in 10 R. 2. When the Commons had Impeached the Lord Chancellor, They were present at his Answer, and so often Replied, and enforced his Oath against him, and required him to be Committed, and so he was before Judgement, but Bailed presently.  
But if the Commons do only complain, and do neither impeach the Party in Writing, nor by word of Mouth in open House, nor demand Trial to be in their Presence; In these Cases it is in the Election of the Lords whether the Commons shall be present or not.  
And therefore when they complained of Alice Peirce, 10 R. 2. The Lords deferred her Trial until the Departure of the Parliament, that is, till the Commons had leave to depart. And if the Commons presence be not necessary in such Cases where they complain, much less is it wherein they complain not; yet they have been present when they did not complain; but that was upon an extraordinary Cause, prout 7 R. 2.  
A Fishmonger exhibited his Complaint, first to the Commons against the Lord Chancellor, and afterwards to the Lords in Full Parliament, in presence of the Commons. But they were present no doubt at the Lord Chancellor's Request, That he might clear himself in Public of the Slander, and so he did.   

The Presence of the Judges.  
In Cases Capital, 
The Presence of the Judges.  the Judges are to be present also, otherwise it is not a Full Court; but they have no Voice. And though there be divers Precedents that complain of the Prelates, prout 21 R. 2. & 2 H. 5. and this last of the Commons, yet there is not one Precedent that finds fault with their Absence in these Cases; for they are not tractare cum caeteris Magnatibus, but cum caeteris de Concilio.  
Here may be Objected that which Tresilian and other Judges answered to one of the King's Questions, 11 R. 2. touching the Judgement of Michael de la Poole, That the same Justices and Sergeants would not give the same Judgement, because it seemeth to them, that the same is irrevocable, as erroneous to every part. Vid. Print. Stat. 21 R. 2. Tresilian was much mistaken, as much as in the other Answers, whereby he determined that to be Treason; and so here he gave his Advice, not his Consent: And yet he saith, he gave his Consent. Read but a little further, and you shall find in the very same place, as followeth; Which Questions and Answers, as well before the King, as before the Lords and Commons, were read and perceived; and it was demanded of all the States of Parliament, how they thought of the Answer? And they said, They thought the Justices made and gave the Answers duly and lawfully, as good and liege People of the King ought to do.  
And in the same manner Sir Tho. of Shelton, Learned in the Law, and Will. Hawkford, and Will. Beechley, the King's Sergeants, being demanded by the King, of their Advice, etc. and my Lord Will. Thurning of the Common Pleas, etc. That the Declaration of Treason not declared, belongeth to the Parliament: And if he had been demanded, he would have said in the same manner.  
And in like manner my Lord William Rickill, Justice of the Common Bench, and after the coming of my Lord William Clopton, Chief Justice, he said thus; Wherefore the said Answers be judged good, and affirmed sufficient in the said Parliament.  
Whereupon the King, by the Assent of the Lords Spiritual and Temporal, and the Procurators of the Clergy, and the said Commons, and by the Advice of the said Justices and Sergeants there being, It was Awarded and Adjudged, etc.  
Here you see the Manner of the Judge's Assent, viz. their Advice only. Nor shall you find their Assents to any Statute; yet the Judges have ever used to be present at the Trials in Parliament upon Life and Death, 5 H. 4.  
The King delivered the Earl of Northumberland's Petition to them. And at the Trial of any Peer out of Parliament, the Judges are ever present on that Day; and their presence is necessary for their Counsel to the Lords; but their Assent is not necessary to the Judgement.    

§. The Manner how the Lords resolve on their Judgement. 
How the Lords resolve on their Judgements.   
How this was Anciently, appears in the Appeals, 21 R. 2. Touching the Death of Simon Burley, viz. It was demanded of every Lord who was present at the said Parliament, his Advice of the said Simon touching his Crime.  
Eodem Anno, in the Print. Stat. 21 R. 2. The Judge's Opinions were demanded in the same manner; beginning with the Sergeants, etc. and so ascending to the Chief Justice.  
And at this Day the Question is put by the Chancellor or Lord Keeper, and the puisne Baron answers first, Content, or not Content; and so the Lords in Order: But their Lordships do first debate the Judgement amongst themselves, and the Question is out of that which seemeth to be most generally agreed on.  

In the Judgement itself is to be considered,  
First, Whether it be ultra Legem.  
Secondly, By whom to be Demanded.  
Thirdly, By whom to be Rendered.   

Touching the First.  
Judgements 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 Uncle, to be Hanged, Drawn and Beheaded, might it be left to their Discretion. Vide Literas E. 3. to the Pope, speaking of this Earls Judgement by the Parliament, for Treason; Cui Sententiae subductis tamen quibusdam opprobriosis, & in detestatione tanti Sceleris, de Rigore Legis nostri Regni infligenda erat, Dolentes acquievimus, 4 E. 6. But the Roll is lost.  
The Lords judged Mortimer to be Drawn and Hanged as a Traitor, 4 E. 3.  
Simile pro Simone de Bereford, N. 2.  
Ibidem, Numb. 3. They judged John Matrevers to be Drawn, Hanged and Beheaded.  
10 R. 2. Weston adjudged a Traitor for delivering up of Castles, Forts, etc.  
And so Jo. Lord Gomeniz. a Germane, was adjudged to die; but because he was an Alien, and a Baronet, and was not the King's Liegeman, 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 Hanged, Drawn and Beheaded for Treason. They differ something, yet herein they agree, That the opprobrious Death of a Traitor, is, to be Drawn and Hanged; which the Parliament could not alter, no not in their Judgements against the King's own Uncle. It was per Legem Regni infligenda. The King might pardon all, and usually did, except Beheading of the Nobility of his own Blood, and of later Times, to all Noblemen.  
As the Parliament could not dispense with, nor omit any part of the Judgement on Traitors, so they could not add more than the Law required. And this may appear by their Judgements of Forfeitures of the Parties Estate.  
The Parliament, 4 E. 3. spoke nothing 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, etc. 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 Judgement against her; Her Offence being only for procuring Favour to her Friends from the late King, contrary to a former Order of Council.  
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 Judgements and Forfeitures.  
1 H. 4. The Lords Adjudged and Declared the Earls of Kent, Salisbury, and others to be Traitors, and to Forfeit, 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 Judgements anciently were indefinite, 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 quality 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 Damages to the Chancellor, and to remain in Prison until, etc. 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 Judgement, the Lords did rate them; as may be gathered out of Richard Lions; where, after Judgement, they called 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 Amerciaments 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 Judgement, the Certainty not being then specified.   

Judgements for Satisfaction. 
Judgm. for Satisfaction.   
In Complaints of Extortion and Oppression, the Lords Awarded Satisfaction to the Parties wronged, which sometimes was certain, sometimes general, but always secundum, non ultra Legem.  
42 E. 3. Numb. 18. Full Restitution was made unto William Latimer of the Wardship and Marriage of the Heir of Sir R. Latimer, whereof he was outed by Duress by John at Lee. But this was done by a great Council per Commandment du Roy, after the Judgement.  
William Ellis, 50 E. 3. Awarded to pay to Botheil and Cooper 20 l. apiece, for their Damages, Num. 25.  
John Peecher, Num. 23. Awarded que il face yeulx a les parties Compl. de lui pour les extortions issint prizes.  
Jo. Nevile, Num. 34. is Awarded to make Restitution to the Lady Ravensholme in Certainty for an Oppression done to her, whereof the Commons complained.  
7 R. 2. The Parliament referred the base Accusation of Cavendish against the Lord Chancellor, to be heard and determined by the Justices, in such sort as if the Parliament had determined the same. And the Justices adjudged him convict of Slander; and that the Lord Chancellor should recover his Damages, which they Taxed at 1000 Marks, and that he be imprisoned until he had satisfied the Chancellor, and the King pro Fine competenti sibi inde debito.  
The judgement against Alice Peirce, Anno 10 R. 2. was, That if she had purchased any Lands by Force or Duress, soit il pur Fine, or Deed en pais, or Deed enroled, or otherwise, that her Purchase be held for none, and the parties who hold themselves aggrieved, have their Process against her in Chancery. By Advice of the Grand Council, Let Right be done to the Parties, and Restitution made according as the Case requireth, so as the Purchase made bona fide, be not undone or annulled any way.   

References to the Common Law.  
Nor could the Lords judge any Complaint of private persons, where the party might have his Remedy at the Common Law; prout Botheil & Cooper Anno 50 E. 3. accused William Ellis for extorting 17 Nobleses from certain Merchants at Pruse; and also for their wrong Imprisonment, by the false Suggestion of William Ellis to the King. And the Lords referred the taking of the 17 Nobles to the Common Law. But upon the Examination of the Imprisonment, it was proved, That Ellis did write his Letters to one of the King's Bedchamber, falsely suggesting against Botheil and Cooper, which Letters were shown to the King, his Majesty then commanded them to be Committed.  
This the Lords expounded to be false Suggestion in Ellis. The King himself judged him for the same.  
Had that Point been cleared in the Statute of False Suggestions, haply the Lords would have referred it to its proper place.  
So also, Anno 5. E. 2. The Lords referred the Accusation of Clingdon, to be Tried at the Common Law.   

Secondly, 
Touching the Demand.  Touching the Demand.  
That verily belongs to the Party at whose Suit it is; To the King's Council for the King, if the Articles were the part le Roy; and to the Commons, against an Impeached Delinquent.   

By whom Judgement ought to be Rendered. 
By whom Judgement ought to be rendered.   
It appeareth plainly by many Precedents, That all judgements for Life and Death, are to be rendered by the Steward of England, or by the Steward of the King's House; and this is the Reason why at every Parliament, the King makes a Lord Steward of his House, though he hath none out of Parliament. And at such Arraignment, the Steward is to sit in the Chancellor's place: And all Judgements for Misdemeanours by the Chancellor, or by him who supplies the Chancellor's place.     

CHAP. VI  
The Precedents for Life and Death.  
ANno 10 R. 2. 
The Precedents of Life and Death.  John Lord Gome 〈…〉, and William Weston were brought by the Constable of the Tower before the Lords in Full Parliament, sitting in the White Chamber; where they were severally Arraigned at the Commandment of the Lords, by Richard le Scroop, Chief Steward of the House of our Lord the King, in manner following:  
Here the Lords commanded the Arraignment of certain Earls, Peers of the Realm: They did not appoint the Steward to do it: It belonged to his Office.  
Anno 20 R. 2. Thomas Haxey was Arraigned of High Treason before the King, the Lords and Commons in full Parliament, in Alba Camera, by the Duke of Lancaster Seneschallum Angliae, and the Judgement rendered by him.  
Anno 21 R. 2. All those Judgements on the Appeal were rendered per Seneschallum Angliae. The Records of E. 3. and H. 4. are silent herein, by whom the Judgement was rendered.  
It may be Objected, 
Obj.  That Anno 5. H. 4. The Lord Chancellor kept his place at the Trial of the Earl of Northumberland, because he did deliver the Opinion of the Lords.  
That could not properly be called a Trial; for it was upon the Earl's own Petition. And if it were resolved whether it were Felony or Treason, it should have been done by the Steward, sitting in the Chancellor's place. Neither doth it appear by the Record, that the Chancellor kept his place, though he afterwards delivered the Opinion of the Lords.  
So likewise, Anno 1 Car. 1. Febr. 6. The Lord Keeper kept his place when the Articles of Treason were read against the Earl of Bristol; but he did not Arraign him. Then they were read, and his Answer heard by the appointment of the House, and some Witnesses examined also, to the end they might understand the true Nature of his Offence, and then to declare how, and in what manner to proceed against him for the same.  
The Spiritualty did not deliver their Opinion therein.  
To conclude, All Records that are (which mention by whom the Delinquents in Cases Capital were Arraigned) do say that it was by the Steward of England, or of the King's House, And in remembrance of this, a Lord Steward is appointed at every Trial of a Peer of Parliament.  
Touching Judgement rendered by the Chancellor in Cases of Misdemeanours, it is needless to recite any Precedents: only this I will say, The Chancellor never gave Judgement on Life and Death, and the Steward never on Misdemeanours.  
And though there be Precedents of Judgements given by the Steward of England in Parliament, prout 20 & 21 R. 2. yet I have seen none of the Judgements on the Peers rendered by the Steward of the King's House: And the reason may be, for that there was anciently a Seneschallus Angliae. Quaere tamen whether the Steward of the King's House, being a Peer, may give Judgement on a Peer or not. I think he may, if there be no Steward of the House constantly made every Parliament, though but during the Sessions.  
The last Considerable Thing in Judicature is,   

CHAP. VII.  
The Execution of the Judgement.  
ANd first in Capital Offences, I have seen but two Precedents thereof in the Parliament-Rolls.  

The First is, 4 E. 3. Which begun on Monday after the Feast of S. Katherine. There were long Articles exhibited against Mortimer for Treason, and he was adjudged to die for Treason; and thereupon, saith the Record, Commandment was given to the Earl Marshal to Execute the Judgement; and also to the Mayor, aldermans and Sheriffs of the City of London, and to the Constable of the Tower, and likewise to them who had the Guard of the said Mortimer, to be aiding to the said Earl Marshal, to do the said Execution. The which Execution was done and performed upon Thursday, next after the first Day of the Parliament, which was the 29th. Day of November.  
Ibidem Num. 2. Judgement was given on Simon de Bereford, to be Drawn and Hanged: And thereupon it was Commanded that the Marshal should do Execution near the Tower of London. And the said Earl of Arundel was Beheaded ou the same Day. The Earl of Nottingham, one of the Lords Appellants, was Lord Martial at that time, and therefore his Deputy did Execution.  
Item, The Earl of Warwick being adjudged to die, the King did pardon the Execution, and granted him his Life, viz. That he should remain in perpetual prison out of England, in the Isle of Man, etc. And that he be at Sea on his passage, before the end of one Month. And thereupon he was delivered to Monsieur William le Scroop, and to Monsieur Stephen his Brother, to bring him safely to the said Isle of Man, etc.  
The Earl Marshal was Commanded to Execution on a Peer, and the Marshal on a Commoner.  
The Command no doubt issued from the Lords, with the King's Assent herein.  
Thus much touching Execution quoad Mortem.   

In Misdemeanours, the greatest Corporal punishment hath been Imprisonment. I find no other in Ancient Parliament: But who was the Officer to carry the Delinquent to prison, is not Recorded, save he to whose Custody he was Committed, prout 42. E. 3. John at Lee was Committed to the Tower. Et dit fuit all Monsieur Alley de Buxhill, Constable de la Tower, que il priest with the King.  
Anno 50 E. 3. Numb. 28, & 29. The Lord Latimer is Awarded to prison, destre en guard du Marshal; and afterwards upon Mainprize of divers Earls, suffered to go at large. So it seemeth that first he was Committed, and delivered to the Earl Marshal immediately.  
Primo R. 2. William Fitz-Hugh was Committed to the Tower, but it appeareth not who carried him thither. At this Day the Lords have used to impose some Corporal punishment on Misdemeanours, prout Flood.  
And at this Day if a Peer be Committed to prison, the Gentleman Usher hath the Charge of him thither, and the Sergeant attending on the Great Seal, prout Anno 18 Jac. 16 Febr. The Earl of Berks was sent to the Fleet by the Gentleman-Usher, for forcibly thrusting the Lord Scroop in open House.  
Anno 21 Jac. 13 Maii. The Earl of Middlesex was Committed to the Tower, and a Warrant given to the Gentleman Usher to carry him thither.  
Anno 1 Car. 1. In the Parliament begun 6 Febr. The Gentleman-Usher was commanded to bring the Earl of Bri-Bristol.  
But if a Commoner be Committed, the Sergeant at Arms attending on the Great Seal doth usually carry him to prison, and he also hath the Charge of him, and to see any Corporal punishment inflicted on him.  
Anno 18 Jac, Wright and two Sergeants at Mace, who had Arrested a Servant to the— were Censured to ride with Papers on their Heads, for their wilful Contempt and Scorn of the Privileges of Parliament, And for that the Sergeant at Arms did not see the whole punishment Executed on them, he himself was Committed.    

CHAP. VIII.  
For Recovery of Damages, or Restitution of the Party aggrieved.  
ANno 50 E. 3. Botheil and Cooper had each of them twenty pounds Awarded for their Damages; and it is not there declared how they should recover the same.  
In the same year John Lord Nevile, upon Complaint of the Commons, is awarded to make Restitution to the Executors of the Lady Ravensholme; neither when the same is to be restored, nor the manner how the same shall be recovered, is declared.  
In those two Cases, I conceive the Parties are to have their Remedy (the Parliament being ended) in the Chancery, and not in any other Inferior Court at the Common Law: But the Lords in Parliament may direct how it shall be Levied.  
Anno 1 R. 2. The Lords adjudged Alice Pierce to forfeit all her Lands and Goods to the King; and notwithstanding this Forfeiture, If she hath purchased any Lands by Force or Duress, it shall be void, and the Party grieved to have his Remedy by Process in the Chancery, and by Advice of the Lords of the Council, Let Right be done, and Restitution made.  
Anno 7 R. 2. John Cavendish was awarded to pay 1000 Marks to the Lord Chancellor for his Damages, and to remain in Prison until he had paid it.  
FINIS.