Judicature in Parlement

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Judicature in Parlement

Henry Elsyng

THE HAMBLEDON PRESS

fudicature in Parlement

This page intentionally left blank

Fudicature in Parlement by Henry Elsyng

Clerk of the Parliaments

Edited by Elizabeth Read Foster

THE HAMBLEDON PRESS LONDON

AND

RIO

GRANDE

Published by The Hambledon Press, 1991 102 Gloucester Avenue, London NWI 8HX (UK) P.O. Box 162, Rio Grande, Ohio 45672 (USA)

I S B N I 85285 038 8

© Elizabeth Read Foster 1991

British Library Cataloguing in Publication Data Elsyng, Henry Judicature in Parlement. I. England. Justice. Administration I. Title II. Foster, Elizabeth Read, 1912— 344.207 I S B N 1-85285-038-8

Library of Congress Cataloging-in-Publication Data Elsynge, Henry, 1598—1654. Judicature in Parlement / by Henry Elsyng ; edited by Elizabeth Read Foster. p. cm. Originally published as book 2, chapter 4, of the author's The manner of holding parliaments in England. Edited from National Library of Wales Manuscript I70260. Includes bibliographical references and index. ISBN 1852850388 I. England and Wales. Parliament. House of Lords — Rules and practice. 2. England and Wales. Parliament. — Rules and practice. 3. Criminal procedure — England. I. Foster, Elizabeth Read. II. Title. KD4275.E44 1991 328.42'05 — dc2O 9I-556 CIP

Designed and typeset in Monotype Van Dijck by The Stingray Office, Oxford, using a Linotronic 300 imagesetter at the University of London Computer Centre Printed and bound in Great Britain by Bookcraft Ltd, Midsomer Norton, Somerset

v

CONTENTS Abbreviations and Short Titles

vii

Introduction xi

xi

Editorial Note and Acknowledgements xv

xv

National Library of Wales Manuscript I7026D I The Table

1

3


7

1. The Accusacion

12

2. The parties Aunswere

53

3. The Replicacion 64

64

4. The Proofe

70

5. The Judgement

78

6. The Execucion

106

Appendix: The Aunswere in

111

Index of Precedents

115

General Index

119


Vll

ABBREVIATIONS AND SHORT TITLES

Annales Ricardi Secundi

Henry Thomas Riley, ed., Jobannis de Trokelowe et S. Albani, necnon Quorumdam Anonymorum, Chronica et Annales . . . , Rolls Series, 28 (London, 1866)

B. L.

British Library

Cal. Close Rolls, 1318-1323

Calendar of Close Rolls Preserved in the Public Record Office, Edward II, A.D. 13181323 (London, 1895)

CJ

The Journals of the House of Commons

El.

Ellesmere manuscripts, Huntington Library

Elsyng, Manner of Holding Parliaments

Henry Elsynge, The Manner of Holding Parliaments in England, [ed. Thomas Tyrwhitt] (London, 1768)

Elsyng, Method of Passing Bills’

Henry Elsynge, The Method of Passing Bills in Parliament’, Harleian Miscellany, 9 (London, 1810)

Elsyng, Moderne Forme’

The moderne forme of the Parliaments of England’, ed. Catherine Strateman Sims, American Historical Review, 53, no. 2 (January 1948): 288—305

Foster, Henry Elsyng, “Judicature in Parliament”’

Elizabeth Read Foster, Henry Elsyng, “Judicature in Parliament”’, Parliamentary History, 9/1 (Spring 1990)

Foster, Home of Lords

Elizabeth Read Foster, The House of Lords 1603-1649 (Chapel Hill, 1983)

Foster, A Library for Parliament’

Elizabeth Read Foster, A Library for Parliament in the Early Seventeenth Century’, The Library Chronicle, 40, no. 2 (1976): 204-220

viii


Foster, Painful Labour of

Mr. Elsyng

Elizabeth Read Foster, The Painful Labour of Mr. Elsyng, Transactions of the American Philosophical Society, 62, pt. 8

(Philadelphia, 1972) Foster, Proceedings in Parliament 1610

Elizabeth Read Foster, ed., Proceedings in Parliament 1610, 2 vols. (New Haven, 1966)

Holinshed

The Third Volume of Chronicles . . . First

Compiled by Raphaell Holinshed (London, 1587) H.L.R.O.

House of Lords Record Office

House of Lords Manuscripts

The Manuscripts of the House of Lords 1712-1714, n.s., 10 (London, 1953)

1712-1714

Ingulph's Chronicle

Henry T. Riley, ed., Ingulph's Chronicle and its Continuations (London, 1908)

LJ

Journals of the House of Lords

Lords Debates 1621

Frances H. Relf, ed., Notes of the Debates in the House of Lords . . . 1621, 1625, 1628, Camden Society, 3rd ser., 42 (London, 1929)

NLW

National Library of Wales

Of Judicature (1681)

John Selden, Of the Judicature in Parliaments (London, [1681])

PRO

Public Record Office

Rot. Parl.

Rotuli Parliamentorum ut et Petitiones, et Placita in Parliamento, 6 vols. (n.d., n.p.). Elsyng's own references are to the original rolls.

Sainty, The Parliament Office’

J. C. Sainty, The Parliament Office in the Seventeenth and Eighteenth Centuries' (London, House of Lords Record Office, 1977)

Sims, Expedicio

Catherine Strateman Sims, ed., Expedicio Billarum Antiquitus, Studies Presented to the International Commission for the History of Representative and Parliamentary Institutions, 16 (Louvain, 1954)

Abbreviations and Short Titles Speed, The History of Great Britaine

John Speed, The History of Great Britaine under the Conquests of ye Romans, Saxons, Danes and Normans . . . The Second Edition (London, 1627)

Statutes of the Realm

The Statutes of the Realm, I I vols. (London, 1810-28)

Willson, Bowyer

David Harris Willson, ed., The Parliamentary Diary of Robert Bowyer, 1606— 1607, (Minneapolis, 1931)

ix


XI

INTRODUCTION

I

N 1624, Henry Elsyng, clerk of the parliaments, undertook to gather together materials concerning the manner of holding parliaments in England, for mine owne instruction and learninge, with noe intent to publishe the same unto any.’ He finished the eight chapters of his firste Booke’ in 1625. After his death, it was printed in 1660 and reappeared in various later editions. Parliament was a popular subject. In the eighteenth century, Thomas Tyrwhitt came upon Elsyng's holograph manuscript of Book One in the British Library and realized how poor these previous editions had been: The records which are quoted, are so wretchedly mangled as to be unintelligible, . . . besides that the whole reasoning of the author is frequently obscured and destroyed, by a wrong punctuation, mistakes of one word for another, omissions of words, and often of sentences.’ Consequently in 1768, Tyrwhitt, then clerk of the House of Commons, published the manuscript of Book One which he had found [Harleian Ms. 1342] together with Elsyng's account of the Arundel case [probably from British Library, Additional Ms. 26,642]. This is still the standard edition. 1 Elsyng had drafted more of Book Two than Tyrwhitt suspected.2 Chapter Five, a substantial treatise on Expedicio Billarum Antiquitus, also discovered in the British Library, was published and identified as Elsyng’s in 1954. Holograph notes for other chapters in the Petyt manuscripts at the Inner Temple Library were printed in 1972. Chapter Four had a longer history. Like Chapter Five, it is a treatise of considerable length. It concerns the judicial activities of parliament. Though unfinished, it was published in 1681 and ascribed to John Selden.3 This first edition of the treatise on judicature was, like the early editions of Book One, careless and often unintelligible. There was no indication that it was part of a larger work. The ascription to Selden had no basis in fact. Therefore when the holograph manuscript of the chapter became available, it seemed not 1

Elsyng, Manner of Holding Parliaments, vi-vii.

2

Ibid., viii.

•' Sims, Expedicio. Foster, Painful Labour of Mr. Elsyng, 50—60; Of Judicature (1681). For a discussion of Elsyng’s Manner of Holding Parliaments in England as a whole and of Chapter Four of Book Two, see Foster, Painful Labour of Mr. Elsyng, 35—45. Elsyng also wrote other pieces on parliament. See Elsyng, Moderne Forme’, and Elsyng, 'Method of Passing Bills'.

xii

Judicature in Parlement only desirable to prepare this modern edition but also became possible to do so. Elsyng’s original manuscript of his treatise on judicature is among the papers formerly at Crowcombe Court in Somerset and now at the National Library of Wales, where it is identified as NLW 17026D. The treatise is marked in Elsyng’s own hand, ‘Lib. 2, cap. 4,’ and was clearly intended as Chapter Four of his second book of The Manner of Holding Parliaments in England.1 A single sentence finally settles Elsyng’s authorship, and confirms earlier conjectures that the attribution to John Selden is erroneous: ‘We are nowe come to our own tymes,' the author of the manuscript remarked, ‘wherin I was Clerke of the Parlement.’2 Tyrwhitt said of the first book of Elsyng's treatise that it had a merit, which very few books upon the Constitution and forms of Parliament have, that it appeared to be written with a knowledge of the subject.’3 This was true of the second book as well, and of Chapter Four which concerns us here. Elsyng was clerk of the parliaments 1621-1635 during a crucial time in the development of the judicial activities of parliament and wrote his chapter during those years. He said that he finished it in August 1627. A copy at the Huntington Library in California [Ellesmere Ms. 8392] has been corrected in his hand with the date June 1628.4 In writing this and other chapters of his book, Elsyng drew on his extensive experience of the records of parliament. Until 1612 he had shared the post of keeper of the records in the Tower with his friend and kinsman by marriage, Robert Bowyer. Through Bowyer he also had access to the abridgements of the records and other collections gathered by William Bowyer, Robert's father, and by Robert himself. Both Robert Bowyer, who became clerk in 1610, and Henry Elsyng assembled books of precedents as part of their official duties as clerks of the parliaments or for their own information.5 Thus when writing about judicature, Elsyng observed the development of the judicial activities of parliaments in his own time from the long view of earlier years. Attempts to control royal ministers and favorites, the investigation of corruption in high places, and the call for redress of grievances, had been a recurrent theme in the relationship among kings, their parliaments and their subjects. Charges in 1621 against Francis Bacon, Lord Verulam and lord chancellor, in 1624 against 1 For this manuscript, see Historical Manuscripts Commission. Fourth Report. Appendix, 369. It was purchased in 1945 by the National Library of Wales. 2

Below, p. 32. For earlier work on the authorship of the treatise, see Foster, Painful Labour of Mr. Elsyng, 42—45. 3

Elsyng, Manner of Holding Parliaments, v.

4

Foster, Painful Labour of Mr. Elsyng, 43—44.

5

Sainty, The Parliament Office, 12, 15. For the Bowyers, see Foster, Proceedings in Parliament 1610, I: xxii—xxiii, xxviii-xxix. Willson, Bowyer, viii-x. Foster, A Library for Parliament’, 214. Foster, Painful Labour of Mr. Elsyng, 9. For Elsyng, see ibid., 9, 34, 35-46.

Introduction

xiii

Lionel Cranfield, earl of Middlesex and lord treasurer, and in 1626 against the duke of Buckingham and the earl of Bristol, were variously framed and pursued. All concerned the upper House and hence its clerk. When puzzled how to proceed, the Lords expected their clerk to search the precedents they considered the one sure guide for the proper conduct of their business.1 Elsyng was generally careful in citing his precedents. He assessed the value of the records on which he relied, aware of the failure of earlier clerks to take note of all the points of procedure for which he was searching. Some precedents were more useful than others. In looking back to the troubled reign of Richard II, he observed that theis extraordinary presidents, cannot leade us into the ordynary course of Proceedinges. I only alledge them as their Errours may be avoyded.’2 'The ordynary course of Proceedinges' was not easy to establish. Elsyng's treatise stems from the period when the judicial activities of parliament were expanding rapidly and when matters of judicial procedure were being debated and determined in the upper House of parliament. There were errors in the procedure against Sir Giles Mompesson in 1621, Elsyng confessed, 'the Judicature of Parlement beinge soe longe out of use.' There were errors too, he believed, in the trial of the earl of Middlesex.3 Of particular importance was the question of counsel for the defendant, a point on which the Lords took issue with the king in Bristol's case.4 Just what does the manuscript of Elsyng's original draft of the chapter on judicature add to what we already know of his treatise from the printed versions or the manuscript copies? It is not, unfortunately, a finished work. Elsyng treated only one section of the topic at hand, the accusation, trial, and judgment of delinquents, and offered a list of five other sections which were lacking.5 Throughout his manuscript, he left blanks for himself or his copyist to fill in: Vide the Recorde,' I want this at Large.’6 These little notes and asides, often omitted from copies, reveal Elsyng's full intent and the meticulous care with which he intended to document his work. The references he gave were remarkably accurate, and he intended, when he returned from the country house where he wrote the original draft, to complete and fill them out. In preserving all Elsyng's directions to his copyist and to himself, the draft enables the modern reader to envision the scope of the projected finished work, even though apparently it was never completed. The original draft also clarifies later clerical and printed copies. One example may serve for many. In quoting a letter from the earl of Northumberland to the king, Elsyng correctly says that the earl claimed he 1 2

Foster, Painful Labour of Mr. Elsyng, 9. 4 Below, pp. 60—61.

Ibid., 31. Below, p. 56. 5 Below, p. 5. 3 Below, pp. 56, 112-14.

5.Below, p. 5. Below, pp. 44, 41.

6

xiv

Judicature in Parlement came to York 'of my free will.' By changing my to your, later manuscripts and printed versions have made nonsense of the phrase.1 The original draft also presents additional material not always found in the copies. For example, in his original draft, Elsyng has added an exposition of 15 E.3, c. 4, to the discussion concerning the king's assent to a judgment in parliament. It does not appear in the copy at the Huntington Library or in the edition of 1681.2 Another interesting additional passage is a section on 'howe the partie accused is brought to his aunswere' which tells the story of the 'longe process against the Erle of Middlesex.' 'Yt varries,' Elsyng observed, 'in some materiall points touchinge the right of the Commons from Antiquitie, And in somethinge touchinge the partie accused,' variations which he did not approve.3 In writing his book on The Manner of Holding Parliaments in England, Elsyng was careful to trace the paths taken by earlier parliaments, to rely heavily on precedent, and to eschew personal observations.4 Of particular interest, then, in his original draft of the chapter on judicature, are passages, later deleted but still legible, which reveal his own opinions or activities. From Elsyng's original draft we learn that John Selden, at the Lords' request, wrote the judgment against Sir Giles Mompesson and that Elsyng followed Selden's model in drawing up the judgment against Cranfield.5 We learn further that in considering the politically tricky question whether the king's testimony could be used against the earl of Bristol, the judges summoned Elsyng and asked if he knew a precedent where such testimony had been admitted in a capital case. Elsyng, in a passage later deleted, replied in the negative: 'but sayd I, I remember that at the tryall of the duke of Clarence anno 18 E.4 the Commons protested against yt, for that (as I conceaved) the kinge gave testimony against him.' Elsyng had, in fact, read more into the precedent than he was justified in doing, but his interpretation seems to have gone unchallenged. Subsequently the king forbad the judges to rule on the general issue.6 Though unfinished and incomplete, Elsyng's chapter on judicature has much to tell. It shows the historical context in which he and the Lords 1

Below, p. 39; Huntington Library, El. 8392, fol. 30v; Of Judicature (1681), 56. See als p. 25, below. Elsyng has written 'Courte of Chevalrie', which is consistent with th parliament roll (Rot. Parl., III, n. I, 604). Of Judicature (1681), 33, and Huntington Library El. 8392, fol. 22, have substituted 'Court of Chancery'. 2 3

Below, p. 84; Huntington Library, El. 8392, fol. 88v; Of Judicature (1681), 144. Below, pp. 112-14.

4 See Elsyng's comment in his advice for the earl of Danby concerning the parliament o

15 E.3: 'it becomes not me to apply it to the present times' (Foster, Painful Labour of Mr Elsyng, 63). He questioned whether it was 'lawfull' for him to examine the cases o Mompesson and Cranfield (below, p. 40). 5 Below, p. 19. 6 Below, pp. 74-76. See also Foster, 'Henry Elsyng, "Judicature in Parliament"'.

Introduction saw the evolution of the judicial activities of parliament in their own day and emphasizes the points of procedure they and the Commons found to be puzzling and important. Taken together with Elsyng's other writings, Chapter Four clearly reveals the way he looked at parliaments, past and present. It adds to our knowledge of the parliaments in which he served and gives brief but telling glimpses of his activities and potential influence as clerk.

EDITORIAL NOTE AND

ACKNOWLEDGEMENTS

I

N editing this manuscript, I have retained the original spelling. I did this because it is Elsyng's own spelling. In deference to the modern reader, I have sometimes modified capitalization and punctuation. I have extended most of the abbreviations and included the signs by which Elsyng left directions for his copyist. Passages marked 'omit' by Elsyng and often crossed through in the manuscript have been retained when they are legible and seem significant. They have usually been indented to set them off from the main text. The text of Elsyng's chapter ends with fol. 122. There follow, in the Appendix to this edition, two additional passages found in the manuscript: 'The aunswere of the partie accused' and 'The manner how the partie accused is brought to his aunswere.' Elsyng treated the same subjects in his section 'touchinge the parties Aunswere' [pp. 53—63], which uses the same precedents offered in 'The aunswere of the partie accused.' 'The manner howe the partie accused is brought to his aunswere,' as indicated above, deals wholly with the case of the earl of Middlesex in 1624. How Elsyng planned to incorporate these two sections in his main text is unclear. We know from his other writings that he often made several drafts before he was satisfied with his work. 1 This manuscript is published with the permission of the National Library of Wales. I am grateful to Glyn Parry, Assistant Archivist, Department of Manuscripts and Records, for information concerning its format and its history. Maija Jansson of the Yale Center for Parliamentary History first brought the document to my attention and sent me her notes concerning it. Myra Uhlfelder advised me on Latin passages. Cordelia Stone transferred the text to a word processor with scrupulous care and accuracy. I thank them all. The excerpt from Ellesmere manuscript 8392 is reproduced by permission of the Huntington Library, San Marino, California. A short section from NLW 170260 [pp. 74-76] was published in Parliamentary History, 9/1 (Spring 1990) and is reprinted here with permission. ' Foster, Painful Labour of Mr. Elsyng, 38-39.

xv


6

NATIONAL

LIBRARY

OF

WALES

MANUSCRIPT

17026D


Judicature in parlement [foi. a]1 The Table The Lords are to trye their Peeres only, & noe Commoners, in Parlement. fol. 1.2. In what cases Bishops are to be tryed by the Peeres in Parlement fol. 2.b. et 3. The Lords maye Judge any person (Lord or Commoner) for any offence, uppon the Commons complaint f. jb. et 73. In what Cases Judicature belonges to the Parlement & what is considerable in cache case f. 5.6. 1. The Accusacion in Judicature on delinquents. f. 7.

f. 7. [L]

By the Commons complaint. By their demaunde.

f. 8.9. fol. 10.

By their ympeachement.

fol. 11.12 usque 21.

Informacion of the king's counsell.

fols. 22.3. usque 27.

Peeres are not to be Indicted in tyme of parlement. fol. 22.b. et 28.29. Treasons beyonde Seas may be tryed in Parlement.fol. 28 et 29. Accusacion ex mandato domine Regis. ex mandato dominorum.

fol. 30.31.32. fol. 3 3.34.3 5.

Accusacion by privatt persons.

fol. 37.38.39. etc.

By Appeles.

fol. 48.49.50. etc.

2. The parties Aunswere. fol. 53.

fol. 53. [L]

Howe to proceede against an absent or a deade man. fol. 53-54-55-56. 1

These introductory folios are not numbered in the manuscript.


4

The aunswere as a prisoner.

fol. 57.

As a freeman.

fol. 57.58.59.

Without Counsell.

fol. 60.

By Counsell.

fol. 62.63.

[fol. b] 3. The Replicacion.

fol. 64.

By the Commons

fol. 65.66 usque 69.

By the Kinge.

fol. 70.

4. The proofe.

fol. 71.

By wyttnesses produced by the Commons. By a Jury ympannelled by the Lords.

fol. 71.72. fol. 22b. et 73.

By Battle. per Brembre. etc.

fol. 50 73.

The Kings Testimony.

fol. 74.75.76.77.

A wytnesse examined touching himselfe. One of the House of Commons examined.

fol. 78. ibidem.

5. The Judgement. Unto whome yt belonges.

fol. 81.82.

To the Temporall Lords in cases capitall. With the Kings assent.

fol. 84.85. etc. usque 88.

Without the Kings assent.

fol. 89.

The Kings presence. The presence of the Bishops.

fol. 83.

fol. 90.91. fol. 92.93. etc. usque 99.

The presence of the Commons. The presence of the Judges. The Judgement of deathe. The forfeiture.

fol. 100.101.102. fol. 103. fol. 105.106. fol. 107.

The fyne & ransom.

fol. 108.109.

Satisfaccion to the partie wronged.

fol. loo.m.

[fol. c] References to the Common Lawe.

fol. m.b.


5

By whom the Judgement is to be demanded.

fol. 1 fol. 112

By whom to be rendred.

fol. 115.116.

6. The Execucion. Of a Peere condemned to dye.

fol. 117.

Of a Commoner.

ibidem.

in Missdemeanors.

fol. 119.

For recovery of dammages.

fol. 121.

For levying of fynes to the Kinge.

fol. 122. finis 30 Aug. 1627 / 2

Demnt [?]

The Judicatures in reversinge of Erroneous Judgements. In decydinge of suytes longe dependinge, n Desunt ^53. determynge the complaints of particular persons. fol. [L] ad

buc

In settyng at liber tye a member of the parlement or their servants ymprisoned duringe the parlement. In certifyinge the eleccions and returnes of Knyghts & Citisens for the parlement./.

Other references have been deleted here.

2

The next word is blotted.


[L] Lib. 2. cap. 4. 2 [L]

[fol

. i] Judicature in Parlement

' I ^He execucion of all our Lawes hath ben longe since distributed J_ by the Parlement unto the inferiour Courtes, in such sorte as the Subiecte is directed where to complayne; and the Justices howe to redresse wronges and punish offences. And this may be the reason of the Judges opynions in Thorpe's Case anno 3I.H.6. n.2y. 3 That accions at Common Lawe are not determyned in this highe Courte of Parlement. Yett complaynts have ever ben receaved in Parlement, asswell of pryvatt wronges, as of publique offences. And, accordinge to the quallitye of the person, and nature of the offence, they have been reteyned, or referred to the Common Lawe. [ What persons are to be tryed in Parlement]

T

Ouchinge the quallitye of the person, the Lords of parlement dyd not aunciently trye anye Offendour (howe greate soever his offence was) unlesse he were their Peere, as by that of anno \to £.3. n.2. Where when the Kinge commaunded the Lords to gyve Judgement on Symon de Bereforde, [fol. iv] They sayd they were not bounde to Judge him 'as a Peere. etc.'4 And afterwards, in the same Parlemente, n.6. when the Lords had given Judgement against the said Symon de Bereford and dyvers others allso whoe were not their Peeres, for the Murdre of the Kinge .E.2., and destruccion of the Erie of Kent sonne of .E.I. A proviso and agreement was made & recorded in theis wordes. vizt. 1 Hereafter Lib. 2, cap. 4. in the heading of each page, omitted. Items in the left margin of the manuscript are throughout prefixed by [L], items in the right margin by [R]. 2 Elsyng's notation on another manuscript indicates that this symbol is a direction for his copyist: 'Whensoever you find this mark ===== begin a new leaf. And where I have left a blank leaf do you so also, for I purpose to add somewhat more in those places.' NLW, Ms. 170230, A. 698, Modus Tenendi Parhamentum apud Anglos. I am grateful to Maija Jansson for this note in which she has modernized the spelling. 3 31 H.6, nos. 26—27: Rot. Parl., v, 239-40. 4 4 £.3, n. 2: Judicium Simoms de Bereford (Rot. Parl., II, 53): que I'avantdit Simon ne feust fas lur Pere, par qoi eux ne furent pas fenuz a jugger lui come Pere de la terre.

[R] What persons are to be tryed in Parlement.

[L] The persons to be trved.

8

[R] ail in romane -

letters

[R] The persons tobetryed'

[L] The persons to be tryed

[L] Bishops


Et est assentu et accorde etc. 'And yt is assented and agreed by our Lord the Kinge and all the Grands in full Parlement, That albeyt that the said Peeres as Judges of Parlement tooke uppon them in the presence of our Lord the Kinge to make and rendre the sayd Judgements etc. That yett the sayd Peeres whoe nowe are, or the Peeres which shalbe in tyme to come, be not bound or charged to rendre Judgements uppon others then their Peeres: Nor that the Peeres of the Lande have power to doe this, but therof for ever be discharged and acquitted. And, that the aforesaid Judgements nowe rendred, be not drawn into example [fol. 2] or consequence in tyme to come, whereby the sayd Peeres may be charged hereafter to judge others then their Peeres contrary to the Lawe of the Lande, yf the lyke case happen, which God forbydd.' 4.£.3. n.6.2 This Proviso and agreement was made in full Parlement, I. by the Kinge, the Lords and Commons: and yt had theis twoe respectes: 1. To satisfye the Commons that the Lords intended not (by these Judgements) to alter the course of the Common Lawe; and therefore they disclayme that they had power to doe this, and confesse that yt was contrary to the Lawe of the Lande. 2. To preserve their owne right, to Judge none but their Peeres in case of lyfe and deathe: For, then the Kinges Stewarde is to sytt in the Chauncellors place, and the Lords are to be both tryers and Judges: and by soe Judginge others then their Peeres they descend belowe their degree, for none but Peeres are to be so tryed & Judged. Yt is otherwise [fol. 2v] in Cases of missdemeanour: There ^ chauncellor keepes his place, and the Lords are only Judges, & not tryours: they may comaunde a Jury to be empannelled for tryall of the facte (yf the truthe appeares not by the parties aunswere, or by the testimonyes exhibited,) as they dyd anno i"R.2. in the case of Allice Perrers.3 Here ariseth a Question, whether the Spirituall Lordes are de iure tryable by their Peeres in Parlement or noe? Out of parlement they are not to be tryed by their Peeres, but the doubte is whether in tyme of Parlement they are so to be tryed or noe. Yt seemes to me they are yf the matter be moved against them in tyme of Parlement. For (as yt is in the Parlement at Yorke, anno I5.E.2. in the Acte of repeale of the Spencers banishement) they are Peeres of the lande in Parlement.4 Noate that the peticion for that ' in Parlement, deleted. 4 E.j, n. 6: Concordia ne trahatur in comequentiam (Rot. Part., II, 54). 3 I R.2: n. 42 (Rot. Par!., ill, 13-14). 4 15 E.2: Cal. Close Rolls, 1318-1323, m. 13d, pp. 542-43. 2

Judicature in Parkment

9

repeale sayeth that the Bishops are Peeres in parlement: the Bishops name themselves Peeres of the Lande and Councellors to the Kinge. And the Acte, Peeres of the Lande in Parlement. [fol. 3] There be divers presidents also of the tryall of Bishops by

M The persons

their Peeres in parlement, asswell for capitall offences, as in misde- to try

meanours wherof they have been accused in Parlement. As of the Archbishop of Canterbury anno 15.£.3. n.6.j. et 8. et ibidem postea n.44 et 49. et ibidem anno 17.£.3. n.22. And the Bishop of Norwich anno 7.R.2. n. [blank] for misdemeanours.1 So were the Archbishop of Yorke and the Bishop of Chichester tryed for Treason by their Peeres in parlement, uppon the Appeale of the Lords appellants. anno nmo R.2. And anno 2imo R.2.2 The Commons accused the Archbishop of Canterbury of Treason, and the Temporall Lords iudged him a Traitor & banisht him. But yf a Bishop be accused out of Parlement he is to be tryed by an Ordinarye Jurye of Freeholders. For, his honour is not inheritable, as is the Temporall Peeres. Yett the Bishops enioye all other priviledges of Peeres out of parlement save that only of their Tryall: as, noe daye of Grace to be granted against them in any suyte. A knight to be returned uppon the Pannell where a Bishop is partie. And no Proces in a Civil accion to be awarded against his body. And the lyke. [fol. jv] By this yt appears what Persons are de iure

[i.] The persons

tryable by the Lords in Parlement, vizt. their Peeres only. to be tryed' [!.]===

Touching the nature of the

Offence

H

Erin the Complainte and accusacion, asswell as the partie delinquent & the Offence, is to be observed. For, uppon Informacion for the Kinge, or at His commaunde, or uppon the complaint of pryvatt persons, the Lords maye not by the Lawe trye any but theire Peeres for capitall offences: And the Lords have ever referred Offences of other nature complayned of by privat persons to tryall of the Common lawe (yf there be remedye) unlesse some speciall cause appeare fytt for their owne Judgements. But uppon the complaints and accusacions of the Commons: the Lords maye proceede in Judgement against the delinquent of what degree soever, and of what nature soever the offence be. For where the Commons complayne, the Lords doe not assume unto themselves tryall at Common Lawe. Neither doe the Lords, at the tryall of a Commoner ympeached by the Commons decedere de iure mo. For the 1

15 £.3, nos. 6, 7, 8, 44, 49: Rot. Par!., II, 127, 131, 132. 17 £.3, n. 22 (ibid., 139). 7 R.2: nos. 15-23 (Rot. Par!., ill, 152-56).

2

I I R.2: n. 6 (Rot. Parl., Ill, 229-44). 2 I R-2: nos. 15-17 (ibid., 3 5 1 ) .

10

[R] The proceedmgs m judicature

Judicature in Parlement Commons are then insteade of a Jurye; & the parties aunswere, and examinacions of wyttnesses are to be in their presence, or they to have Copyes therof. And the Judgement is not to be gyven but uppon their demaunde, which is instead of a verdict. Soe the Lords doe only Judge, not trye that delinquent. [fol. 4] In the Lords proceedings allso in Judicature is observed a t cer aine forme which varyeth accordinge to the nature of the complaint and the matter complayned of: soe that noe generall rules can be gyven therin, yett though many Judgements have ben reversed for errours (wherof there be many precedents) and the execucion uppon lyfe and deathe hath ben stayed at the request of the Commons (the proceedinges beinge illegall) wherof I have scene one only precedent touchinge the Duke of Clarence, tempore E.4.1 wherefore for our better understandinge of the fourme of Judicature, lett us first consider the severall cases wherin Judicature belonges to the Parlement, and then the auncyent procedings in each case.2

[t]== [R] in what

[fol. 5] In what Cases Judicature belonges to the Parlement "Udicature belonges to the Parlement in theis 6. cases, vizt.

J

i. In Judgements against delinquents asswell for capitall crymes, as misdemeanours. And herin are to be considered 1. The Accusacion. 2. The parties aunswere. 3. The Replicacion. 4. The proofe by Examinacion of wyttnesses or otherwyse. 5. The Judgement. 6. The execucion.

[L] in what

2. In reversinge of erroneous Judgements rendred in Parlement, or the kings benche. In reversinge of erroneous Judgements rendred in parlement are to be considered. The Peticion. The bringinge of the Recorde. The assignment of Errours. The deliberacion on the Errours. The reversall therof. [fol. jv] And in reversinge of Erroneous Judgements gyven in the Kings benche are to be considered. The Peticion. The writt of Errour. 18 £.4, see pp. 74-75, below.

2

Fol. 4v is blank.

Judicature in Parlement The The The The The

n

bringinge in of the Recorde. assignment of Errours. writt of Scire facias. defendants aunswere. reversall of the Judgement.

3. In decydinge of suites longe dependinge in other Courtes, either for the difficultie of the cause, or any other delaye. Wherin is to be considered The Peticion. The advyse with the Judges. The determinacion of the Lords. 4. In the hearinge and determyninge the complaints of particular persons uppon peticions Wherin. The peticion. The defendants aunswere. The Proofes. The Order of the Lords. [fol. 6] 5. In settinge at libertie of their owne Members or servants ymprisoned: And in stayinge the proceedinges at Common Lawe against them during the priviledge of parlement. Wherin are to be considered The quallitye of the Person ymprisoned. The parties aunswere at whose suite he is ymprisoned. The manner of his discharge./.

M in what

6. In certifynge the eleccions and retournes of Knights and Citisens for the parlement. But the Commons alone doe nowe determyne of this. Wherefore I wyll only shewe that the Commons dyd heretofore peticion to the Lords for redress herin, and what course was then taken. And leave yt to the Clerke of that House to shewe howe the Commons proceede therin at this daye. Of the rest in order; and firste of Judgements on delinquents. |L] here leave 2 svdes'

Fol. 6v, blank.

judicature in Parlement

12

[L]

[foi. 7] [The Accusacion]

[R] Accusacion.

I

N Judgements against delinquents, is firste to be considered the Accusacion. For, as in the Kings benche, the Justices proceede not to the arraignement of an Offender without an Indictement; Soe the Lords have not proceeded in Judgement unlesse the Cryme be firste presented unto them by waye of Accusacion. Yf otherwise, their Judgements have ben reputed Erroneous, as was that against the Spencers anno i$to E.2. rot. clamarum in schedula pendente.' For, the selfe same persons cannot be both Accusers and Judges. I have observed fower manner of Accusacions in Parlement, vizt. 1. By the Commons, either by their complaint, or ympeachment. 2. By Informacion ex parte domini Regis. 3. By complaint of pryvate persons. 4. By Appeale of some of the Lords of Parlement, which was abollished by the Statute of I.H.4- cap. I4- 2 [L] [L] Accusacion of the Commons

[fol. yv] The accusation of the Commons

T

His manner of Accusacion ought to be by the Commons alone, and not by the Lords and them together. For soe, the Prelates Erles, Barons and other Peeres of the Lande and Commons of the Realme dyd accuse Hughe Le Despencer etc. anno l$to E.2. And one [R] a" 15 E.2. of the Errours assigned for reversal! of the Lords JJudgement theron cj c? is, 'for that the Lords had no Recorde before them of the causes conteyned in their Awarde.' vd rot. clam, a" eodem in the parlement at Yorke.3 The reason may be bycause the Lords, ioyninge in the Accusacion with the Commons have declared their opynion of the facte, and then there needes noe further tryall therof. Wherefore the Lords, whoe only are Judges, may neither accuse any unto themselfes, nor ioyne in the Accusacion with others. [R! Accusacion [fol. 8] The Complaint of the Commons is either by Peticion, or by the Commons. Demaunde, in generall Or by ympeachement in particular, which is their declaracion against the partie accused. 1 2 3

15 E.2: Cal. Close Rolls, 1318-1323, m. i j d , pp. 542-43. I H.4, c. 14 (Statutes of the Realm, II, 116). 15 E.2: Statutes of the Realm, I, 181-84; 15 E.2: Cal. Close Rolls, 1318-1323, m. 13d, pp. 542-46.

The Accusacwn

13

The presidents of their Complaint by Peticion are theis. ^Anno 21.£.3. n.38. The Commons complayne of extorsion used [L] ' the Commonsin certeyne and he shalbe herde etc.' Soe that, although the Commons accusacion by complaint be generall yett, the complaint being receaved, and the parties brought to their Aunsweres, The Commons may then ympeache the said parties, that is, declare against them in speciall: And then the suyt is theires. prout anno 50.£.3. against Lyons, Ellys, the Lord Latymer, the Lord Nevill, Pecchee and others.3 But yf the Commons doe only accuse by any waye of complaint whatsoever, and doe not allso declare in speciall against the partie accused; then the suyte is the Kings and the partie is to be arraigned o^ otherwise proceeded against by commandment of 1

2 21 £.3, n. 38: Rot. Par!., n, 169. 21 K-3, n. 49: ibid., 170-71. 3 50 £.3: nos. 17-44 (ibid., 323-29).

14

Judicature in Parlement the Lords upon Articles exhibited ex parte domini Regis, front Gomeniz, Weston, and Allice Ferrers anno i° R.2. and the Bishop of Norwich and divers others anno 7.R.2.1

[L] anno \° H.4

Anno i° H./j.. The Commons doe praye that the Lords Appellants in the parlement of .2I.R.2. may be putt to their Aunswere. and soe they were, vide Placita Coronae of that parlement n.i.2. etc.2

[L] Accusacion [fol. pv] Anno 29.H.6. The Commons praye that the Duke of By the Commons. Somersett, the Duches of Suffolk, the Bishop of London, the Lord [R] anno 29 H.6. Dudley, and a many other gentlemen, may be abandoned from the Kings presence duringe their lyves, & not come within .12. myles of the Courte for that 'the people spake evill of them. Aunswered. The Kinge of His owne mere mocion is contented that all shall departe unless they be Lords and a fewe of them whom he may not spare from His person. And they soe to contynewe for one yere, to see yf any man can duely ymprove them./. n.i6.' inter peticwnes Communium} But this was noe accusacion, for the Commons dyd not requyre that they myght be brought to their aunswere, but to be banished the Courte. [R] anno 38 H.6.

Anno 38 H.6. n.38. The Commons (amongest their peticions) accuse the Lord Stanley of soundrie particulars as beinge of confederacy with the Duke of Yorke. And pray that he may be committed to prison.4 Aunswer. The Kinge wylbe advised.

[R] anno \" Jac:

Anno i° Jacobi. 26 Mail. The Commons (by message) complayne of a booke written by the Bishop of Bristol, but name him not.5

[R] anno 12. Jac.

Anno 12 Jacobi. 28 Maii. The Commons (by message) accuse the Lord Bishop of Lincoln for wordes spoken of them in the upper House.6

[L] [R] Accusacion by demaunde of the Commons. [L] anno i" R.2.

[fol. 10] Of the other kynde of Complainte vizt. by waye of Demaunde, I have scene only theis .2. presidents. Anno i° R.2. The Subsidye beinge to be treated on betweene the Lords and Commons, (as the manner then was) The Commons delyvered unto the Lords a schedule of their demaundes to be dispatched before the treatye shoulde proceede. Amongst which one 1

2 3

4

I R.2: nos. 38-40, 41, 42 (Rot. Par!., ill, 10-14); 7 R.2: nos. 18-23 (ibid., 153-56). I H-4: nos. i-io (ibid., 449-52). 29 H.6, n. 16: Rot. Parl., v, 216: ('voided and amoeved fro youre moost noble presence'). s 6 38 H.6, n. 38: ibid., 369-70. LJ, II, 306. Ibid., J09-

The Accusacion

15

was, 'That all such whoe without cause have loste or gyven up any Castle, Towne or fortresse to the dishonour of the Kinge and damage of the people may be putt to their Aunswere before the Lords and Commons in this Parlement." The complaint herin is generall. They accuse such as had delyvered up Castles etc. (yf this be an accusacion) but they name not the parties. Yett heruppon twoe delinquents whoe were ymprisoned in the Tower for delyverye up of Castles etc. were putt to their aunsweres, vizt. Gomeniz and Weston. [L] Accusacion. [fol. rov] Anno 7. R.2. The Commons graunted a Subsidye acthe Commons cordinge to the tenour of a Schedule Indented delyvered in Parle-R amo 7 R 2 ment, requyring that the same myght be enrolled in the 1Parlement 1 -Roll verbatim. In which schedule is this Protestacion, that yt is not their meaninge to graunte the sayd Subsidye without the Condicions ensuing. In primis, That the Clergye doe make the lyke graunte. etc. [L] Bishop of 'Item, that the Bishop of Norwich and others be compelled to Norwich. aunswere such sumes as they have receaved, for service by them 2 undertaken and not performed.' etc. n.13. Here the Commons name one of the parties against whom they complayne, but they ympeache him not and yett he and dyvers H name them out of the others were censured upon that generall demaunde. *prout. r " Recorde at Large. [fol. n] Of the ympeachements of the Commons there be theis presidents, vizt. Anno 50 £.3. The Commons, having graunted the Subsidye, they protested their good will and firme purposse to ayde the Kinge. And sayed 'that yt seemeth unto them for truthe that yf the Kinge had allwayes about him loyall Counsellours and good Officers, He had ben rich in Treasure and needed not to charge His Commons with subsidyes' etc. Then they desyred that three things myght be enquyred of. 'Firste of the withdrawinge of the Staple from Callice, by the Counsell and procurement of some Privye Counsellors about the Kinge and of others of their Covyne. Secondly, of Loanes to the Kinge by waye of usurye, receavinge agayne greater summes then they disbursed wherin some Privye Counsellors have ben parteners. Thirdly of buyinge of the Kings debtes by way of bargayne, some for the tenthe penny, some for the xxth or hundreth penny, and procuring the Kinge to repaye the entier debte, to the Kings losse, and the proffitt of some Pryvye Counsellors and of others of their covyne.' 1

I R.2: n. 38 (Rot. Par!., in, 10).

2

7 R.2, n. 13: ibid., 151-52.

N M Accusacion. y the Commons.

YmPeac ement 'L' amo 5° '3'

16 [L] Accusacion. By the Commons.

[L] Richarde Lyons. [R] wryte this in romane hande for yt is ad verbum with the recorde.

[R] Accusacion. By the Commons.

[L] Accusacion. By the Commons.


[fol. nv] Of which three Articles and their dependauncyes, the sayd Commons sayd, 'that they woulde make fuller declaracion in especiall whensoever yt shall please our Lord the Kinge to heare them.' n.i5 et 16.' Then followe their particuler ympeachements and accusacions. 'Firste Richarde Lyons Merchaunt of London is ympeached and accused by the said Commons of many deceites, extorsions, and other yll deeds by him done to the Kinge our Lord and to His people, asswell during the tyme he was repayringe to the Kings house, and to the Kings Counsell, as otherwise whilest he was fermour of the Subsidyes and Customes of the Kinge. And in especiall of this, that the sayd Richard by covyne made betweene him & some of the Pryvye Counsell of our Lord the Kinge for their pryvate proffitt and advantage hathe procured many pattents and writts of Licence to be made to carrye greate quantities of woolls, woollfells and other Merchandises beyonde the Seas to other places then to the Staple at Callyce, contrary to the ordinaunces and prohibicions theron made heretofore in parlement to the greate destruccion of the same Staple [fol. 12] and of the Mynte there, to the greate damage of the Kinge and of the Realme of Englande and ympoverishement of the Towne of Callys aforesayd. And allso of this, That he hathe ymposed and procured to be ymposed newe ymposicions uppon woolls, wooll fells and other Merchaundises without assent of Parlement; and levyed and gathered a greate part of those newe ymposicions to his owne use, and to the use of others of his covyne about the Kinge, without the viewe or testimonye of any controller, and without that that he is charged by recorde or otherwyse save at his will, but therof is Treasurer and receavour alone, and the High Treasurer of the Kingdome meddles not therewith, etc. (shewinge the particuler newe ymposicions). And also of dyverse Loanes made to the use of our Lord the Kinge without neede, and in especiall of one Loane which he lately made in London of 20000. marcs, for which 20000. marcs our Lord the Kinge was bounde to repaye .30000. marcs etc. And allso for dyvers other extorsions, fallsityes, deceiptes, oppressions, champerties and meintenaunces, committed against our Lord the Kinge and His people in every parte of the Realme asswell when the sayd [fol. i2v] Richarde was fermour of the sayd Subsidyes etc. and receavour of the sayd newe ymposicions as otherwyse, by takinge uppon him notoriously in all those thinges power Royall, which woulde be a horrible thinge to reherce all. And allso wheras our Lord the Kinge hathe ben debtour of Recorde unto dyvers men for many greate soms of money, the sayde Richarde by 50 E.3, nos. 15, 16: Rot. ParL, II, 323.

The Accusation

17

assent of some privye Counsellors about the Kinge of his covyne hathe bargayned for dyvers of the sayd debtes, some for the xth pennye some for the xxth, and some for the hundred penny, and hathe procured the Kinge to paye the wholl debte, etc.' (the Recorde names only twoe such debtes) namely the Priour of St. Johns, & the Lord despencer and concludes thus. 'And soe of many others, in greate deceipte sclaunder and vyllanye of the Kinge and of his Courte. Wherunto the sayd Richarde then presente in the Parlement sayd.' etc.1 then followes his aunswere unto the loane, and the ymposicions particulerly. And to the rest which is generally obiected against him, he makes a generall aunswere. The Lords censured him for that to which was particulerly obiected against him, and graunted Commissions to enquyre of the extorsions wherewith he was charged with in generall. [fol. 13] Then the Commons in lyke manner ympeached and ac[R] Accusacion cused Wylliam Lord Latymer of dyvers extorsions, grievaunces, B>" the Commons desceits and yll deedes etc. vizt. of dyvers Oppressions when he y°r jatymer served the Kinge in Bretanie: for beinge partener with Richarde Lyons etc. and for the losse of Townes and fortes beyonde the Seas. n.2i. 2 Item Wylliam Ellys of Greate Jermouth is ympeached in this [R] William Ellys present parlement in dyvers manners. First by surmise of the Commons etc. n . j i . 3 And afterwards John Botild and Wylliam Cowper exhibitt their twoe billes in the forme which followeth. To their thrice redoubted Lord the Kinge and to His Sage Counsell shewen John Botild, etc. complayning of the oppressions of the said Wylliam Ellys unto them and others. And their Oathe was taken against him./, n.32. 4 Item John Pecchee of London merchaunt was accused and ym- [R] John Pecchee. peached by the said Commons, 'That he by the assent and ayde of Richarde Lyons and of others — Pryvye Counsellors about the Kinge of his covyn for their pryvate proffitt & advantage hathe purchaced a Patent under the greate Scale of our Lord the Kinge conteyninge that none shoulde sell swete wynes within the franchises of the Cittye of London but only the said John,' etc. n.33 5 Item John Lord Nevill was lykewyse ympeached etc. for buyinge of the Kinges debtes etc. n.34 6 and for losse of Townes beyonde [L] Accusacion. Seas etc. [fol. i3v] (Here I observe, that though the Commons comthe Commons playned (50 £.3) but of .3. grievaunces, vizt. of the withdrawinge 1 3 4 5

50 50 50 50

E.y. E.3, £.3, £.3,

n. n. n. n.

17 (ibid., 31: ibid., 31: ibid., 33: ibid.,

323-24). - 50 £.3, nos. 20-21: ibid., 324. 327. 327-28. The oath is in n. 31, not n. 32. 6 328. 50 E.3, n. 34: ibid., 328-29.

i8


of the Staple from Callice, of Loanes to the Kinge uppon excessive usurye and of buyinge the Kings debtes.1 Yett when they appeared whom they accused, they ympeached them, that is they declared against them for other matters allso, as against Lyons for newe ymposicions on woolls without assente of parlement.2 And against the Lorde Latymer for his misgovernement beyond the Seas and losse of Fortes there.3 And against Pecchee for an Monopolie of Sweete Wynes, etc.4 I observe allso, that there declaracion is not made accordinge to the stricte forme of Lawe, as you may perceave by that against Lyons which I have allmost ad verbum sett downe, wherin many extorsions are soe generally alledged against him, that he made noe aunswere unto them, neither coulde he, which ympeachement the Lords not withstandinge dyd not reiecte, but sup[R! Accusacion. plyed [fol. 14] the defectes therof by grauntinge out Commissions to By the Commons. enqUyre therof. ibidem n.20.27 in fine. [L] anno 50.E.3

Item in this Parlement (of .50.£.3.) 'An ordinaunce was made against woemen pursuinge buissenesses in the Kings Courtes. And [R] Alike Ferrers, in especiall against Allice Ferrers,' n.45. 5 I finde noe accusacion againste this Allice Ferrers. I only coniecture that the Commons complayned of her, though yt be not entred. For, she is in the number of them whom, in the next parlement of .5 I.E.3. n.8y. 6 the Speaker of the Commons names to be uniustly convicted in this parlement and none were then convicted but those whom the Commons complayned of.

[R] Adam de y-

Item Adam de Bury Citisen of London was ympeached by the Clamour of the Commons in this parlement 'of many deceipts and other ylls done to the Kinge and to His people whilest he was Maior of Callis and Capteine of Balingeham, and otherwyse, as more at full appeareth in one greate Bill delyvered in Parlement the Last daye of this Parlement at Eltham. And theruppon the sayd Adam was sente [L] Accusacion. [fol. HV] for to come to aunswere in Parlement, and he came not, By the Commons, neither could be founde. Wherefore yt was awarded that all his goods and chattells shoulde be putt in arrest. And soe yt was done by writts sente to the sheriffes of London and Kente. And the sayd byll is on the fyle with the especiall peticions' of Parlement. 50 £.3. n-47-' Out of this last president concerninge Adam de Bury, I observe 2 thinges. Firste that, whom the Commons compleyned of, the Lords

Bur

1 3 s 7

50 50 50 50

£.3: nos. 15-16 (ibid., 323). £.3: nos. 20, 25 (ibid., 324-25). E.3, n. 45: ibid., 329. £.3, n. 47: ibid., 330.

2 4 6

50 £.3: n. 17 (ibid., 323). 50 £.3: n. 33 {ibid., 328). 51 £.3: n. 89 (ibid., 374), not n. 87.

The Accusation sente for him only to appeare before them: they sente not to apprehende him as a delinquent, untill he contemned their commaunde. Wherof more herafter in the tytle of the parties Aunswere. Secondly, that the Commons delyvered not their ympeachement (that is their declaracion) against the partie accused untill he appeared before the Lords & them. They kepte this backe untill the laste daye of the Parlement in hoape that he woulde have ben brought before the Lords. And when they sawe he coulde not be founde, they then delyvered their ympeachement against him, to [fol. 15] the ende (as I conceave) that the particulers of their Accusacion myght remayne on Recorde against him herafter. Som' what allso I observe here for my owne particuler lerninge. That the Clerke hath not recorded the very Bills of the Commons declaracion against Lyons, Latymer, & the rest. He hathe only recyted the effecte therof as he might the more briefly compase the proceedings against them which course I entended to have taken in drawinge up the Judgement against Mompesson anno 18 Ja: and had begunn yt in this very forme. But some of the Lords misslyked yt, and soe Mr. Selden (whoe was afore hand appoynted) dyd drawe yt up in such forme as nowe yt is, recytinge the very declaracion of the Commons at Large, though in many places yt is very defective.2 And accordinge to that precedent I have drawen up the Judgement against the Erie of Middlesex much more at Large then otherwyse I woulde have done.3 [fol. i5v] But I have hitherto kept the Roll by me, intendinge to shewe the Lords what particuler passages I woulde leave out, which of my selfe I wyll not doe; neither is yt fitt that the Clerke shoulde presume to omytt any thinge howe absurde soever. In the auncyent parlements I see they dyd, but then at the ende of every parlement a Greate Councell was commonly called, (which is nowe the Starrechamber) where the same clerk allso served. And there he myght have the advyse of the Lords and Judges therm. And sometymes one of the Judges dyd drawe up the Judgements, & delyvered yt to the Clerke. prout anno 2.H.6. 1 2

3

This whole passage, here indented, has been crossed through in the manuscript. For the Lords' order concerning the entry of the judgment of Mompesson in the parliament roll, see LJ, in, 128, 135. For Elsyng's original draft, see H.L.R.O., Main Papers, H.L., 4 April 1621. For Selden's account of the judgment, which is much more detailed and corroborates Elsyng's report of what happened, see the parliament roll, PRO, €65/185. For the entry of the judgment of Cranfield, earl of Middlesex, see PRO, C6s/ I 88, which also corroborates Elsyng's description of his work.

19

[R] Accusacion.

[L] Omytt this

[L] Accusacion. [R] omytt this.

'Judicature in Parlement

2O

Sir John Mortymers Judgement.1 But of this more in the yth chapter of this booke: Of the ministeriall Officers of Parlement, & their duityes.

[R] Accusacion. By the Commons.

Here I allso observe one errour of the Clerke, that he hathe omytted the proceedings against Allice Ferrers, John de Leicestre and Wauter Sponer, whoe were all convicted [fol. 16] in this parlement5 as appeareth by the Speakers mocion to the Kinge for their

pardons in the next Parlement of .51.£.3. n.8y. 2 Thus much touchinge the Commons accusacions & ympeachements in anno 50.£.3. [L] anno 10 R.2. [R] M. de La Pole.

[L] Accusacion. By the Commons

The next president of this kynde of Accusacion is anno 10 R.2. In which parlement 'the wholl Commons with one assent assembled and came before the Kinge, Prelattes and Lords in the Parlement chambre complayninge grievously of Michael de La Pole, Earl of Suffolke Chauncellor of Englande there presente accusinge him openly by mouthe. vizt. i. first that wheras beinge Chauncellor he was bounde by oathe to further the Kings profitt and commoditye in all thinges, he not withstandinge contrary to the same Oathe, and without regarde of the Kings greate necessitye had purchaced of the Kinge Landes & tenements to a greate valewe procuringe the same by reason of his office to be surveyed at an undervalewe. [fol. i6v] 2. Item where at the last parlement .9. Lords were appoynted to see and examine the estate of the King and Realme, which beinge done, & their advyse delyvered to the Kinge as well by worde as by wrightinge by what meanes the same myght best be remedyed: the said Chauncellor promised in open Parlement that the same shoulde be putt in execucion; which notwithstanding was not done thorough his defaulte, he being Principall Officer. 3. Item, where the subsidye graunted at the last Parlement, was appoynted by assent of the Kinge and the Lordes in what sorte yt shoulde be expended, and not otherwyse: the same notwithstandinge was otherwyse ymployed in his defaulte, he beinge Principall Officer, etc. 4. Item that where J. S. had a certeyne Annuity graunted from .£.3. which he had sithence forfeited and the payement therof was discontynued for the space of .20. or .30. yeares: the sayd Chauncellor knowinge this, purchased his intrest therin, and procured the King to confirme the same unto him. etc. 5. Item that where the greate Master of St. Anthony beinge a 1 2

2 H.6: n. 18 (Rot. Parl., IV, 202). 51 £.3, nos. 89, 90, 92: Rot. Parl., II, 374.

The Accusation

21

[R] Accusacion. Schismatique had thereby forfeited to [fol. 17] to [sic] the Kinge all his revenuew within this Realme; the same Chauncellor had taken By the Commons the same to ferme of the King for .20. marks by the yeare, to the detriment of the Kinge more then a 1000. marks. And where the Master shoulde sithence have had Lyvery therof agayne, he coulde noe wyse gett the same before he had bounde himself to paye 100 //. yerely to the Chauncellor and his Sonn. 6. Item that duringe the tyme of his Chauncellorship, there had passed dyvers charters of Pardon, as well for Murthers, Treasons, and felonies, as allso for rasinge of Rolles and sellinge of Lawes. And specially since the begynninge of this Parlement a Charter of certeyne fraunchises graunted to the Castle of Dover to the disinheritaunce of the Crowne and subversion of all the places and Courtes of the Kinge and of his Lawes. 7. Item that at the Laste parlement, dyvers summes of money were allotted for defence of Gaunte: the same notwithstandinge with the sayd money was loste. etc. in his defaulte etc. Of all which Articles the Commons demaunde Judgement of the parlement.'1 etc. I have ben to longe uppon this, considering all the presidents fol[L] Accusacion. lowe at Large, [fol. iyv] This is the most formally sett downe of all By the Commons the Accusacions hetherto of the Commons. Yett most of them are very generall, and incerteine, howbeyt the Chauncellor tooke noe excepcions to the insufficiencye therof, but aunswered every particuler. 2

The next Accusacion of the Commons is anno .n.R.2. where and in the 21 of that Kinge, they accused dyvers of those whom the Lords had firste Appealed. Wherof, when we speake of Appeales.3

[R] anno I l.R.2.

Anno 2I.R.2. The Commons accused and ympeached of Treason, the Archbishop of Canterbury, n.15. and demaunded Judgement against him allso and had yt. n.i6 4

[R] anno 21.R.2. [L] Archiepiscopus Can tuna [L] Mortymer & Cobham. [R] Accusacion. By the Commons. [L] anno 28.H.6. [R] Duke of Suffolk.

Eodem parlemento^ The Commons accused and [fol. 18] ympeached of Treason Thomas Mortymer and John de Cobham Chevalier (a Baron of Parlement). and had Judgement against them bothe. s Anno 28.H.6. Wylliam de la Pole, Erie Marquis and Duke of Suffolke was accused and ympeached by the Commons on this manner, vizt. This Duke beinge the greate Favorite of that Kinge and Queene, the common people Layed all the blame of their yll gov1 2 3 4

10 10 ii 21

R.2: R.2: R.2: R.2,

n. 6 nos. n. 6 nos.

(Rot. Par!., ill, 216). 7-12 (ibid., 216-19). A space follows in the manuscript. (ibid., 238-41). s 15-17: ibid., 351. A space follows in the manuscript.

22

M Accusacion. By the Commons

Accusacion. the Commons

jUDICATURE IN pARLEMENT

ernment on him, and made ballads therof (which I have scene,) taxinge his loyaltye to the Kinge. The parlement of 28.H.6. begann the .6. of November, and helde to the i6 th of december, & was then prorogued to the xxiith of Januarye followinge. On which 22th of Januarye, the Duke of Suffolk (whether provoaked by the Ballads made of him, or by some speeche in the house of Commons wherof there is nothinge recorded) dyd requyre of the Kinge that he myght be specially accused and be herde to aunswere, for that many reported him to be an untrewe man. And he made [fol. i8v] a solemne protestacion of his Loyaltie wherin he sheweth that his father and three of his brethren dyed in the service of the Kinge and of his father and grandfather. That he himself had served in the warres .34 yeres. and beinge but a knight and taken prisoner, payed 20000 //. for his ransome. That he had been of the Order of the Garter .30. yeares, A Councellor to the Kinge .15. yeres, had ben 17. yeares in the Kinges warres without retourne home. And soe, askinge Gods mercy as he had ever ben trewe to the Kinge, he requyred his Purgacion/. n.14 et 15.' Whether this was sente to the Commons, or what noatice they had of yt, appeares not. But on the .26 of Januarye the Commons requyred that the Duke myght be committed to warde for his owne Confession (for that, as I conceave he himselfe confeste the generall fame that wente of him). And the Lords upon consultacion with the Justices thought the same to be noe iust cause of committement, unlesse some speciall matter were obiected against him. n.i6. 2 On the 28 th of Januarye, The Speaker declared to the Lords, howe the Duke of Suffolk (as yt was saved) had solde this [fol. 19] Realme to the Frenche, whoe prepared to come hither, and that the said Duke for his owne defense had furnished Wallingford Castle with all warlicke municion. And then, uppon the Commons request, the Duke was committed to the Tower, n.iy.3 On the 7//7 of February, the Chauncellor and some other Lords were sente by the Kinge unto the Commons (a thinge then usuall) but wherefore they were sent is not expreste; happily to be informed what they coulde saye against the Duke, or to reconcyle this business. But the Commons delyvered unto the Chauncellor and those other Lords a Bill of Articles against the said Duke wherin they accused him of dyvers treasons, vizt. For entendinge to marry his sonne to the heir of the Duke of Somersett, and thereby for wante of yssue of the Kinge to clayme the Crowne. For practisinge with the Frenche etc. n.i8. 19.4 etc. requyring prosecucion against 1 3

28 H.6, nos. 14, 15: Rot. Par!., v, 176. 2 28 H.6, n. 16: ibid., 176-77. 28 H.6, n. 17: ibid., 177. 4 28 H.6, nos. 18-26: ibid., 177-79.

23

The Accusacion the Duke, n.zy 1 The 9th of Marche the Commons delyver another bill against him of lesse offences, n.28. 29. 30. etc.2 requyringe theis Articles to be enrolled allso, and the Duke putt to his aunswere. n.47./.3 [fol. ipv] (Here myght be a Question resolved whether Common Fame be a iust cause of Accusacion or not? vide autem anno 50. £.3. the accusacion of the Commons against Lyons & Ellis is very generall, & yett noe excepcion taken to the insufficiencye therof,4 soe lykwise anno io.R.2. against the Lord Chauncellor.5 And yf the Commons be not bounde to shewe the particulers in their Accusacion; by the same reason they are not bounde to shewe their Author. Yett they are to be produced at the Tryall bothe the particuler offence & the speciall proofe. And the Lords will not Committ any man accused upon Common fame (excepte for Treason or such capitall cryme especially named) but only putt him to his aunswer. I conceave that aunciently the house of Commons myght accuse uppon Common fame, accordinge to this laste president of 28.H.6.6 But noe president can be produced out of the parlement Rolles that any particuler person dyd accuse any uppon Common fame, for a Particuler Person (of what authoritye soever, himself is) cann adde noe creditt unto Common fame. But yf the House of Commons believe yt hand temere est quod vulgo dicti mnt. Anno 4-E.3. 7 The Kings averment, and Common fame are the only proofes against Mortymer and the judgement theruppon repealed for erroneous, anno 28 E.^. n.io. 8

[L] Accusation. y the Commonsommon ame 'R' mytt f

[fol. 20] Theis before recyted are all the auncient presidents of the [R] Accusacion. Accusacions and ympeachements of the Commons, which are ex- y the Commonstante on Recorde. They which followe are of latter tymes. _ [l]

Anno 1 8. Jacobi. The Commons accused and yrnpeached by worde of mouthe Sir Gyles Mompesson & Sir Fraunces Michell

[L] anno 18 Jac. [R] Sir Gyles Mompesson. etc.

1

2 28 H.6, n. 27: ibid., 179. 28 H.6, nos. 28-46: ibid., 179-81. 28 H.6, nos. 28, 47: ibid., 179, 182. 4 50 £.3: nos. 17, 31 (Rot. Parl., n, 323-24, 327). " 10 R.2: n. 6 (Rot. Parl., ill, 216). 6 28 H.6: nos. 16 and 17 (Rot. Parl., v, 176-77). 7 4 £.3: n. 2 (Rot. Parl., n, 53). 8 28 £.3, n. 10, is the original judgment. For the repeal, see nos. 11 and 12 (Rot. Par!., n, 256). 3

24

Judicature in Parlement knights, for many oppressions done to the people. They ympeached them to the Lords at a Conference, and afterwards delyvered their declaracion in wrightinge against them, which consisted of three particulers: the firste concerninge the pattents for Inns & Hosieries, the seconde concerninge Monopolyes of Golde and sylver thrydd, and the thirde concerninge the pattent of Concealements.1

[L] anno 18 Jac. [R] Lord viscount St. Alban

Eodem parlemento^ they accused and ympeached Fraunces Lord Viscount St. Alban Lorde Chauncellor at a Conference allso, of bribery and Corrupcion in his Office of Chauncellor. They delyvered noe wrightinge, but a Committee of the Lords havinge considered of the proofes dyd drawe up the particulers into the forme of a charge which were sente unto the Lord Chauncellor, & his aunswere requyred to cache particuler.2

[L] Accusacion. [fol. 2Ov] In the same manner & in the same parlement they By the Commons, accused and ympeached Sir John Bennett knight Judge of the Pre[R] anno 18 Jac. rogative Courte of Canterbury, of bribery and corrupcion in his Office.3 [R] anno 21 Jac. In the same manner they accused and ympeached Lionell Erie of [L] Erie of Middlesex Lord Treasurer of Englande of bribery, extorsion & opMiddlesex Lord pression, and of newe ymposicions on Frenche wynes, & Grocery. reasurer. Which beinge reported to the house, A committee was appoynted to consider of the Commons complaint, and allso of the reporte of a Committee for Municions etc. whoe had reported to the House a greate wante of Powder in the stoares through the Lord Treasurers negligence. This Committee appoynted to consider herof dyd after many examinacions taken, drawe up a charge against the sayd Lord Treasurer out of the wholl complaint of the Commons, (excepte for the ymposicions on wynes which they left out), and allso out of the Reporte of the Committee for Municions touchinge the wante of Powder etc. and of a complaint made unto the House by Sir Thomas Dallison, and of some missdemeanors (wherof they were enformed) in the Greate Warderoabe & Court of Wardes. Which charge the House sent unto the Lord Treasurer, and requyred his aunswere.4 Anno 21. Ja: [R] Accusacion. [fol. 2i] s In the same parlement of .21. Jac. the Commons (at a By the Commons conference) accused and ympeached by worde of mouthe the Bishop 1 2 4

5

LJ, m, 44-45, 72, 108-109; PRO, €65/185. 3 LJ, m, 53-54, 61, 85-87; PRO, €65/185. LJ, m, 87. Ibid., 299, 301, 307-11, 318-19, 320, 327, 344-45, 349, 351-52, 364, 365, 367-69, 373, 374, 375Fol. 21 also occurs several folios further on.

The Accusation

25

of Norwich of some missdemeanors, which beinge reported to the [L] Anno 21 Jac. House, the said Bishop made a presente aunswere therunto. And yt [R] Lord Bishop of Norwich. was [blank] 1 In the parlement of .6. Febr: anno i° Caroli Regis. The Commons (at a Conference allso) accused and ympeached George Duke of Buckingham of many misdemeanors, and delyvered their declaracion in wrightinge, requyring that the said Duke myght be putt to his aunswere.2

[L] anno \° Caroli Regis. [R] Lord Duke of Buckingham.

[fol. 22] [Accusacion ex parte Domini Regis]

N=

' I vHe seconde manner of Accusacion is Ex parte domini Regis, which JL is threefolde: the .2. firste are ymmediately from the King and the thirde by commaundement of the Lords. .1. By a formall informacion exhibited in Parlement by the Kinges Attourney, or Councell learned, as was that of 4'° £.3. against Roger Mortimer Erie of Marche, and dyvers others and .4'° R.2. against Sir Ralphe Ferrers knight. 3 And .1° Caroli against the Erie of Bristol.4 .2. By the Kings Commaundement either uppon the peticion of the delinquent, or uppon the retourne and viewe of any proceedinges taken ellswhere against the delinquent, prout anno 5 H.4. against the Erie of Northumberland uppon his Peticion.5 And anno y.H.4. against the said Erie of Northumberlande and Lord Bardolfe uppon former proceedings against them in the Courte of Chevalrie6 et anno 2 H.6. uppon request of the Commons against Sir John Mortymer knight indicted in London.7 In theis cases noe articles are ex [sic] exhibited (ex parte domini Regis^) as in the former. [fol. 22v] And soe (noe doubte) yf a Peere be indicted ellswhere before the Parlement beggan, the Kinge may commaunde the Lords to proceede against him uppon the same. But I have not seen any president of a Peere indicted ellswhere in tyme of parlement, and afterwards tryed for the same in Parlement, which is against the clayme and allowance of their liberties, anno I5-E-3 et n.R.2. s

[R] Accusacion. Ex parte domini

1 2

3

4 6 s

LJ, in, 388—90. A space follows in the manuscript. Ibid., 590, 594-608, 610-24. A space follows in the manuscript, and fol. 21 v is blank. 4 E.j: Judicium Rogert de Mortuoman n. i (Rot. Parl., II, 52—53). 4 R.2: n. 21 (Rot. Parl., Ill, 92). s LJ, ill, 567, 576. 5 H.4: nos. I 1-12 (Rot. Parl., in, 524). 7 7 H.4: n. I (ibid., 604). 2 H.6: n. 18 (Rot. Parl., iv, 202). 15 £.3: n. 6 (Rot. Parl., n, 127). 11 R. 2: n. 7 (Rot. Parl., in, 244). A space has been left in the manuscript.

[L] Leave here on whole syde

rEGIT

[L] Accusacion. Ex parte domini Regis. [R] quia postea


26

.3. By Articles exhibited ex parte domini Regis ex mandato dominorum against such of whom complaint is made in generall by the Commons, front anno i° R.2. against Gomeniz, Weston, and Alike Ferrers. And .7™° R.2. against the Bishop of Norwich and dyvers others, which Articles, though they were drawen & exhibited by commaundement of the Lords, yett the parties were charged therewith ex parte domini Regis.1 [fol. 2jv] 2 Of accusations by Information ex parte domini Regis

[L] Accusacion. [L]==

[L] ex parte domini Regis.

[R] Accusacion. ex parte domini Regis.

I

N rot. clauss. anno 4 £.3. There is a proclamacion touchinge the deathe of Edmond Erie of Kente, where yt is sayd, that certeine lettres of his conteyninge Treason were shewen to the Kinge, which the sayd Erie coulde not denye, wherefor he was arrested. And he freely acknowledged the same treason before the Coroner of the Kings House. And afterwardes the sayd Treasons beinge putt in wrightinge he acknowledged the same before the Erles Barons and other Grands and Nobles of the Realme in Parlement (at Winchester anno 4 £.3). Here appeares playnly that Articles of Treason were exhibited against the Erie of Kent in parlement. In the next parlement (in the same yeare) Edmond, the sonn and heire of the sayd Edmond, exhibited his peticion, prayinge the Kinge, that the Recorde & proces wheruppon the said Erie was putt to deathe myght be brought before Him in parlement, and yf Errour be founde therin, that right be done. etc. n.n. 3 The which peticion beinge reade before the Kinge, Prelatts, Erles, Barons & other Grands in the same parlement, etc. The kinge of His Royall power, and royall dignitye, by assent of parlement, repealed the sayd Judgement etc. n.12./. 4 Noate that in this repeale noe errour was alledged, nor any excepcions taken for that the Lords proceeded uppon the Articles only obiected against the said Erie. This is out of the Closse rolls. [fol. 21, sic] The firste presidents recorded in our parlement Rolles of Accusacions of this kynde are those of .4'" £.3. in the parlement at Westminster which are added at large (amongst dyvers others) at ' i R.2: nos. 38-40, 41, 42 (Rot. Par!., in, 10-14); 7 R.2: nos. 15-23 (ibid., 152-56). 2 A page has been left blank. The foliation is erratic: fol. 23v is followed by a second fol. 21. 3 Clam. 4 £.3, m. 38d, (Appendix, Rot. Parl, II, 444); 4 £.3, n. 11: Rot. Parl., n, 554 4 £.3, n. 12: ibid.

The Accusation the ende of this discourse. The effecte wherof followeth. vizt. 'Theis are the Treasons, felonies and yll deedes done to our Lord the King and to His people by Roger de Mortimer and others of his covyne.' (recytinge them all. And concludes thus) 'Therefore our sayd Lord the Kinge dothe charge you the Erles and Barons and other Peeres of His Realme, that forasmuch as theis thinges touche principally Him and you and all the people of His Realme, That you doe unto the sayd Roger right and lawfull Judgement, as is for such a one to have whoe is veryly guiltye of all the crymes above written: for that He believes the sayd thinges, and they are notorious and knowen for truthe unto you and unto all the people of the Realme.' n.i. 1 then followeth the Judgement against him./. 'Item in the same manner our Lord the King charged the sayd Erles, Barons & Peeres to [fbl. 2iv] gyve right and lawfull Judgement (as behooveth) on Symon de Bereford Knight, whoe was aydinge and counsellinge unto the sayd Roger de M. in all the Treasons and yll deedes for which the sayd Roger was soe awarded and adjudged to deathe, as the thinge that is knowen and notorious unto the sayd peeres, as the King believeth.' n. [blank]2 then followeth the Judgement against him allso. Then followeth the Judgment against John Matravers. n.j. 3 And the Judgement against Bogo de Bayon and John Deverell. n.4.4 And the Judgement against Thomas de Gurney and Wylliam de Ocle. n_5. 5 But noe particuler accusacions are recorded against any of them, unlesse they were comprysed in these generall words of that against Mortymer. vizt. 'Others of his covyne.' For some of the same crymes are mencioned in their Judgements. Yet (noe doubte) but the Kings Attourney dyd exhibite particuler Articles against everye one of them, uppon which the Lords proceeded to Judgement. [fol. 22] Here I doe ingenuously confesse myne owne Errour, when I sayd that this judgement against Roger Mortimer was afterwards reversed for that he was putt to deathe without any accusacion, which I then conceaved to be soe uppon the firste viewe of the Repeale therof anno 28.£.3. n.io. 6 Where the peticioner (Roger Mortymer the Grandechylde) assigneth for errour, for 'that the sayde Erie was putt to deathe and dishenherited sanz nul accusement, et sanz estre mesne en Judgement ou en respom.'1 By which words sanz 1

4 E.3, 1, Judicium Robert de Mortuoman: ibid., 52-53.

2

4E 3 , . 2, Judicium Simonis de Hereford (ibid., 53). 1 4 E-3, 3, Judicium Johanms Mautraverr. ibid.

4 5 6

4 E. 4, Judicium Bogoms de Bayom & Joh'n Deveroil: ibid. 4 £.3, 5, Judicium Thome de Gurney, & Will'mi de Ocle: ibid., 54. 28 E.3, n. 10. This should read 28 £.3, nos. 11 and 12 (ibid., 256).

27 [L] anno .4'°.£.3. [R] Roger Mortymer.

[L] ibidem [R] Symon de Bereford. [L] Accusacion. ex parte domini

rEGIT

[R) Accusacion. ex parte domini Regis.

28 Judicature in Parlement

[L] Accusacion. ex parte domini Regis

[R] Accusacion. ex parte domim Regis per Indictment.

null accusement) I did then understande that the Articles were noe accusacion, wheras nowe, uppon better consideracion, I doe fynde that those words doe ymplye noe accusement by wyttnesses or otherwyse to prove the said Articles obiected against him. For, these Articles are a legall accusacion in Parlement and frequently used, as appeares by many presidents of lyke nature. But there was noe other proofe offred to the Lords to prove the same, then, that the Kinge believes them, and that they are notorious and knowen for truthe unto the Lords and unto all the people of the Realme. And the Lords allso, havinge examined those Articles sayd, that all the thinges therin conteyned are [fol. 22v] notorious, and knowen to them and to the people. They speake not a worde of any one wyttnesse examined or any other prooffe, then Common fame. And for this cause, and for that the sayd Erie was not brought to Judgement nor to Aunswere, but condemned unseen & unherde, uppon Common fame only, without legall proofe, the wholl Parlement dyd very Justlye repeale the sayd Judgement and Recorde, for erroneous & defective in all poynts. And the Lords were the more wyllinge to damne the wholl Recorde as erroneous, and that in all poynts, leaste happely yt myght be alledged against themselves another tyme for a President. Anno I5.E.2. The Lords and Commons ioyned in the Accusacion against the Spencers, & for that the Lords proceeded to Judgement therin, the same was repealed (at the next parlement) for that the Lords had noe recorde in their owne pursuite uppon the causes conteyned in their Awarde. And that they ought not to have ben their Judges etc. (havinge ben their accusers), vide the errours assigned.1 But here, noe excepcion was taken to the Articles wheron the Lords proceeded to Judgement against Mortymer; but for that yt was sanz accusement, & for not bringinge him to his aunswere, they repealed the same./. But graunte that sanz nul accusement, dothe sygnifye symplye Noe accusacion exhibited; yett that is but the averment of the Peticioner, the Judgement dothe not saye yt was noe Accusacion, yt sayes that yt was erroneous in all poynts; and soe yt was, noe proofe beinge produced but Common fame, to prove the Accusacion.2 [fol. 22b, sic] This firste Errour bredd a seconde (I not well understandinge the meaninge of those words sanz nul acmemeni) vizt., That a Peere ought to be indicted for capitall Offences in parlement. But havinge nowe perused all the Judgements, I doe not fynde any one Peere to be indicted in tyme of Parlement and vide anno nm° 1

2

15 E.2: Cal. Close Rolls, 1318-1323, m. i j d , pp. 542-46. 28 E.j: nos. 11-12 (Rot. Par!., II, 256).

The Accusation

29

R.2. n.y 'All the Lords, aswell Spirituall as Temporall claymed as their liberty and franchise, that the greate matters moved in this Parlement, and to be moved in other Parlements in tyme to come, touchinge the Peeres of the Lande, ought to be demesned, adiudged & discussed by the course of Parlement; and not by the Lawe Civill nor by the Lawe of the Land used in the more base Courtes of the Realme.' which the Kinge graunted in full parlement. eodem rot. appell. n.29O.' This is sayd to be their Auncyent Custome, vizt. to be Judged accordinge to the use of the Parlements only./- Then noe Peere can be indicted in tyme of parlement for that yt is contrary to the use of parlements. Lett this suffice for the confession and rectifyinge of myne owne former Errours herin. But a Lord of Parlement may be indicted out of Parlement, and by the Kings commaunde proceeded against in the next Parlement uppon the said Indictement. prout hie postea. [fol. 22v] In the same parlement Thomas Lord Berkeley was arraigned for the deathe of the said Kinge Edwarde the seconde.2 And (whether out of humillitye, or otherwise) he wayved his Perage, and putt himselfe uppon the Tryall of his Countrey. The Articles against him (though not exprest, but by inference out of his arraignment) are for the murder of Edward the seconde at Berkley castle in county Gloucester. Unto which he aunswered that he was then sicke at Bradley in the county of Worcestre and pleaded not guiltye of the deathe of the said Kinge. Et de hoc de bono et malo pomt se super patriam. This president shalbe added herafter at large. Yt begynnes thus. Placita Coronae tent a cor am 'Domino Edwardo Rege tertio post conquestum, in plena parlemento suo apud Westmonasterium die Lunae proximo post festum Sancte Kath. virgims anno regm Regis emsdem Edwardi quarto. Thomas de Berkeley miles venit cor am Domino Rege in plena parliamento suo praedicto. Et allocutus de hoc, Quod cum dommus [fol. 23] Edn>ardus nuper Rex Angliae pater dommi Regis nunc in custodia ipsius Thomae et cumsdam Johanis Matravers extitit liberatus^ ad salvo custodiendum in Castro ipsius Thomae de Berkle in Com. Glouc. et in eodem Castro in custodia ipsorum murdratus extitit et mterfectus, qualiter se velit de morte ipsius Regis acquietare dicit etc. n.i6. Then followes his Aunswere etc. Here the cause wheron the Lord Berkley was tryed is mencioned, but the Articles obiected against him, and by whom he was ac1

1 1 R.2, n. 7: Rot. Par/., in, 244.

2

4 £.3: n. 1 6, Contra Tbo' de Berkele, Gloucestr\ ' (Rot. Par!., n, 57).

[L] Accusacion. ex parte domini Reps

[L] Gloucester. Wigorn. [R] Accusacion. ex parte domini Reps.

30

[L] Accusacion. ex parte dommi

Regis.

[R] Accusacion. ex parte dommi Regis.

[L] anno 4'" R.2. [R] Sir Ralphe Ferrers.

Judicature in Parlement cused, and whoe questioned him, whether the Chauncellor or the Stewarde of Englande, or whoe ells, all theis circumstances are omytted. Yt appeares not (I saye) in what manner this Cryme of the Lord Berkle was presented unto the Lords [fol. 23v] whether by the former generall Informacion against Mortymer et autres de sa covyne, or by some such lyke particuler Informacion against him alone (which I rather believe) for that Some such Accusacion there must be of necessitye Otherwise howe coulde he be questioned for his Cryme in parlement? But here yt appeares that the Lords brought him to his aunswere, which they omytted to Mortymer, and in that poynte their proceedings against Mortymer was erroneous. And had this manner of Accusacion against Mortymer ben erroneous allsoe, noe doubte but the Lords woulde have avoyded that Errour nowe against Berkle. The manner howe Berkle was arraigned here in pleno parliamento, is explayned in the president of i° R.2. concerninge Gomeniz and Weston, whoe were brought prisoners by the Constable of the Tower before the Lords in full parlement syttinge in the white Chamber, where they were severally arraigned (at the commaundement of the sayd Lords) by Sir Richarde Le Scroop Knight Stewarde of the Kings House etc. The wordes (full parlement) signifye [fol. 24] the Lords and Commons, for that Recorde sayes, That the Commons prayed that all such as have surrendred any fortes etc. myght be putt to their Aunswere before the Lords and Commons etc. wheruppon they were brought to their Aunsweres in full parlement for that offence.1 Soe here (I conceave) the Lord Berkley beinge accused by the Kinge for the Murdre of E.2. was brought before the Lords and Commons (for the Commons are to be presente at such arraignements, as shalbe shewen herafter) And then, the Clerke of the Crowne havinge reade the Accusacion against him, allocutus fuit, that is, the Lord Stewarde of Englande recityinge the facte wherof he was accused, demaunded of him, howe he woulde acquitt himselfe therof. This I conceave to be the manner therof vide the Appeales anno 21 R.2 for the forme herof.2 I mervaylle that the Lords dyd suffer this Lord Berkley to wayve his Parage, & putt himselfe super patriam. Anno 4'° R.2. Sir Ralphe Ferrers knight was brought into the parlement under the garde of the Marshall of Englande, and there arraigned on the behalfe of the Kinge for suspicion of treason etc. n.2i. 3 In the process against him, is recorded that [fol. 24v] he was, 1 I R.2: n. 38 (Rot. Par!., ill, 10). 2 21 R.2: nos. 1-7 (ibid., 374-7?)3 4 R.2, n. 21: ibid., 92.

The Accusation for suspicion of Treason surmised against him, arrested in the Marches of Scottlande by Monsieur de Lancastre & other Lords temporalls then beinge in the sayd Marches, & That he was brought under the said Arrest by commaundement of the sayd Lords to aunswere in this parlement to that which shalbe surmysed against him in especiall concerninge certeyne lettres which were founde and sent to the Kinge and his Councell. The lettres are allso recorded, & were read in parlement. n . i y . 18. 19. et 20.' But, the Informacion exhibited against him, wheruppon he was arraigned, is not recorded, yt is only sayd, he was arraigned ex parte domini Regis. Here may be twoe Questions .1. Whether this Sir Ralphe Ferrers was legally brought to his aunswere in parlement by commaundement of the Duke of Lancastre and of those other Lords whoe were then with him in the Marches of Scottlande? And another whether that he, beinge noe Baron, nor Lord of parlement (for he never had Sommons) myght be legally arraigned in parlement for lyfe and deathe uppon an Informacion ex parte domini Regis? which is contrary to the Liberties of the Peeres, and contrary to the Lawe, as was resolved in Parlement anno 4'° £.3. n.2 et 6.2 For resolucion of theis doubtes, I am of [fol. 25] opynion that the duke of Lancaster myght send Sir Ralphe Ferrers unto the Parlement bycause yt was then syttinge. And that the parlement myght then examyne the Treason wherof he was suspected, though they coulde not proceede to Judgement against him without the Commons, he beinge a Commoner & not their Peere. And yt fell out that in the examinacion of the buissines, they founde the lettres to be counterfeited, & acquitted him therof.3 And their Proceedings soe farre was not illegall. For the Parlement maye enterteyne and examyne any cause, and afterwards directe the Judgement therof to yts proper Courte, yf yt belonge not unto them, as they dyd anno 5 R.2. n.43 et 44. where Sir Wylliam Cogan knight beinge accused by Richard Clyvedon of matter soundinge to Treason. After the Lords had herde the cause, they dyd in the ende of the Parlement adiourne bothe parties before the Justices of the Common lawe, for what apperteyned to the Lawe.4 And yett the parlement myght in this case of Sir Ralphe Ferrers (yf they had founde he had ben guiltye) have proceeded to [fol. 25v] Judgement against him allso in Parlement accordinge to the president of Sir Thomas Mortymer anno 2.H.6. whoe was firste indicted in London, and the indictement retourned into the Chaun1

4 4 •' 4 4 5 2

R.2, nos. 17, I 8, 19, 20: ibid., 90-92. £.3, nos. 2 and 6: Rot. Par!., n, 53-54. R.2: nos. 23-25 (Rot. Part., ill, 92-93). R.2, nos. 43 and 44: ibid., 105 106.

31

[L] Accusacion. Ex parte domini Regis.

Accusacion. parte domini Regis.

[L] Accusacion. ex parte domini Regis.


32 [R] Anno 2 H.6. [L] Sir John' Mortymer. [R] Omytt this quid aliter postea

eery, & from thence brought into the Parlement, where the Commons affirmed the same, and prayed Judgement against him.2 This3 is the effecte of that president, but noe doubte there were Conferences betweene the Lords and the Commons to satisffye them of Mortymers Treason & to resolve of this manner of proceedinge against him. Which Ceremonies are ever omytted in the auncient Parlement Rolles, but the practisse at this daye in other matters shewes yt was soe.

[R] anno zd° H.4. [L] Comites Kane. Huntington et Salisbury etc.

Anno 2 H-4 The Lords Temporall gave Judgement on Thomas Hollande late Erie of Kente, John Hollande late Erie of Huntington, John Mountague Late Erie of Salisburye, Thomas Late Lord Le despenser, and Ralphe Lumley, whoe were beheaded in a warre which they had traiterously levyed against the Kinge.4 This Judgement is entred, but not the Informacion ex parte Regis, which is necessarily understood, for had it been omytted, his sonn Thomas woulde noe doubte have assigned that for one of the Errours in his peticion to reverse the said Judgement anno 2.H.5 apud Leicestre which he dyd not, though he assigned for an Errour that his father was putt to deathe without any accusacion.5

[R] Accusacion. ex parte domini Regis. [L]== [L] anno 1°

Caroli Regis FR! Comes Bristol

[fol. 26] We6 are nowe come to our wherin I was Clerke of the Parlement.

own

tymes

In the parlement begun at Westminster .6. Februarii anno primo Caroli Regis, & contynnewed till 15'° Junii anno 2do eiusdem Regis domini nostri, John Erie of Bristoll was charged with highe Treason on this manner, vizt. i" die Maii 1626. The said Erie beinge brought to the barre and kneelinge (untell the Lord Keeper wylled him to stande up) the Lord Keeper tollde him that he was sente for to heare his charge of highe Treason. And Mr. Attourntye generall beinge at the Clerkes table begann to open the said Charge. But was interrupted by the said Erie, whoe with much importunitye exhibited Articles against the Duke of Buckingham (then presente) which (as he sayd) he conceaved to be Treason. And requyred of the Lords that his Testimonye against the Duke, and against the Lord Conwaye (against whom allso he then delyvered Articles) myght not be invalide by this charge of Treason against himselfe which he affirmed was pro1 2 3 4 6

Thomas, crossed through and John, written over. 2 H.6: n. 18 (Rot. Par!., IV, 202). This whole passage, here indented, has been crossed through in the manuscript. 5 2 H.4: n. 30 (Rot. Parl., ill, 459). 2 H.5: n. 12 (Rot. Par!., IV, 18). These first two lines on fol. 26 have been deleted.

The Accusation cured by the said Duke. Yett notwithstandinge the hedds of the Kings charge were opened against him by Mr. Attourney, and then the sayd Articles against the Duke and against the Lord Conwaye were reade. And yt [fol. 26v] was Ordered by the Lords that the Kings charge againste the said Erie shoulde be firste herde. And then the Erles charge against the Duke. But yett soe as the Erles testimony against the Duke be not prevented, preiudiced, nor ympeached.' Die Martis 2do Man. The House was moved that the Erie of Bristoll myght be indicted accordinge to the Statute of 35.H.8. (the treasons obiected beinge committed beyonde Seas) and that beinge certefyed to the House, then to proceede against him by tryall of his Peeres.2 But their Lordships dyd not resolve of that manner of proceeding. Then the House was moved that Mr. Attourney myght proceede to provyde an Indictement against the sayd Erie to be retourned to the House on Satturday next (.6. Mail). And yf he doubte of the forme to conferre therof with the Judges: and yf any greater difficultie appeare soe that there shalbe cause to reporte to their Lordships, then their Lordships to be acquainted with yt. And yt was Ordered. Mr. Attourney to proceede with the preparacion, but the House not to be concluded till their next meetinge on Thurseday. And the subcommittees for priviledges etc. [fol. 27] serche for precedents in the meane tyme.3 Die Jovis ^° Maii. The Subcommittee for priviledges reported one only precedent, vizt. The tryall of the Erie of Northumberlande anno 5'° H_4. which the Clerke reade unto them out of the parlement Roll of that yeare.4 Wheruppon, after longe debate yt was ordered 1. Mr. Attourney to prepare the hedds of the charge against the Erie of Bristoll and to brynge them in on Satterdaye next. 2. The Erie of Bristoll to receave the Charge at the Barre then. 3. When the Erie hath herde his Charge the Lords wyll determyne when he shall aunswere. But he is not to be inhibited yf he wyll aunswere presentlye. 4. This cause of the Erie of Bristoll is to be reteyned wholly in this House. 5. After the Charge is brought in, and the Erles aunswere, their Lordships to proceede to heare Mr. Attourneyes proofes amongest themselves: and then to putt the cause into the waye of proceedinge in this House.5 1 3 5

LJ, III, 576-78. LJ, in, 579-80. LJ, m, 581.

- 35 H.8, c. 2 (Statutes of the Realm, in, 958). 5 H.4: nos. 11-12 (Rot. Par!., in, 524).

4

33

[L] Accusacion. ex parte domini Regis.

[R] Accusacion. ex parte dommi Regis./.

34 [L] Accusacion. ex parte domini Regis.

[R] Accusacion. whether a Peere may be indicted in tyme of parlement for Treason etc.

[L] Accusacion. Indictement


[fol. 2yv] Die Sabathi 6 die Mail. The Lord Keeper shewed that Mr. Attourneye desyreth, in regarde the House hathe allready herde the nature of the Crymes obiected against the said Erie of Bristoll, that the Clerke of the Crowne in the Kings benche maye attende the readinge of the Charge here, accordinge to a precedent of former tymes, [blank] which was denyed, in respecte that the Clerke of the Crowne in the Kings benche is noe Minister of this Courte: and allso, for that yt was Ordered, 4'° Maii, that this cause shalbe reteyned wholly within this House. The sayd Order beinge reade, the Erie was brought to the Barre.1 And then the Lord Keeper commaunded Mr. Attourney to reade the Charge against him. Whoe reade the same out of a parchement engrossed in Courte hande, & signed by himselfe — Ro: Heathe. Yt conteyned divers Articles of Highe Treason: & other greate enormious crymes, offenses and contemptes committed by the said Erie etc. beyonde Seas.2 The Erie exhibited his aunswere unto the same on Fryday 19. Mail. etc. prout postea* Thus farre touching the charge against the said Erie by Informacion on the Kings behalfe. [fol. 28] A Question was demaunded of me and others in pryvate the laste parlement touchinge this Order of the Lords 4'° Mail. That this cause of the Erie of Bristoll shalbe reteyned wholly in this House. Howe this myght be in respecte of the Statute of 35'" H.8? by which yt is enacted That all treasons committed beyonde Seas (as this Erles were) shalbe tryed in the Kings benche, or before Commissioners assigned by the Kinge.4 For that an Order of the upper House cannot avoyde a Statute. Some were then of opynion, That the said Erie was firste to be indicted before Commissioners appoynted by the Kinge; and, that Indictement beinge retourned in to the parlement, to be tryed theron by his Peeres; and vouched the President of 2do H.6. of John Mortymers Indictement retourned into the parlement.5 But then the cause shoulde not be wholly reteyned in the parlement. Neither can yt be inferred out of that president of Sir John Mortymer, that the Parlement cannot trye any for treason unlesse he be firste Indicted ellswhere.6 [fol. 28v] For then the parlement shoulde not have soe much power as hathe the kinges bench and other inferiour Courtes, wherin Capitall Offences7 may be bothe inquyred of and determined. Neither cann Sir John Mortymers Indictement thus retourned, be a leadinge case for the tryall of Peeres 1 4

Ibid., 582.

2

Ibid., 582-85.

35 H.8, c. 2 (Statutes of the Realm, ill, 958). 6 2 H.6: n. 17 (Rot. Parl., IV, 202). that were to make the parlement of less, deleted.

3

Ibid., 632-45.

5

of this nature, deleted.

The Accusation

35

in parlement for he was but a Commoner, & therefore not to have ben judged by the Lords, unlesse the Commons had firste accused him. And soe the Commons dyd by affirminge the Indictement to be trewe before the Lords gave Judgement uppon him. But there can be noe President shewn That a Peere of parlement hathe ben tryed in parlement uppon an Indictement taken ellswhere. The1 said president of John Mortymer, is briefly thus. He was committed to the Tower by the Kings Councell uppon suspicion of Treason, whence he escaped. Beinge taken agayne, he was indicted before Commissioners for breakinge of prison,2 and the indictement retourned into the Chancery. The next daye yt was brought into the parlement by commaundement of the Kings Protector (de per le Roi). The Commons affirmed the Indictement and [fol. 29] demaunded Judgement, wheruppon the Lords Judged him for a Tray tour. To resolve this Question, twoe thinges are considerable. I. The

Statute of .35.H.8. whether the meaninge therof were to lymitt the tryall of a Peere in tyme of parlement (for foreine treasons) unto the kings benche or before Commissioners assigned by the kinge & not ellswhere.3 And I conceave that the Statute hathe noe such meaninge. The preamble sayes yt was doubted whether such treasons may by the Common Lawe of the Lande be inquyred of, herde, and determyned within this Realme of Englande. For a plaine remedy, order and declaracion therein to be had and made, Be it ennacted etc. Soe that yf such treasons have ben heretofore inquirable by the Common law, then this Statute declares howe yt shalbe herafter. Yf not inquirable heretofore by the Common lawe, then this Statute provydes a remedy and Order for the same herafter. But this Statute dothe not abridge the parlement of the power which yt had to inquyre of & to determine such Treasons in tyme of parlement, wherof there are dyverse presidents, vizt. i° R.2. for Weston & Gomeniz.4 and .50.£.3. for Wylliam Lord Latymer and John Lord Nevill.5 vide 7 R.2. n.13. 15 etc. pro Episcopo Norwiciae et ibidem n.iy, pro Cressingbam ef Spykewarth et ibidem n.24, pro Sir Wylliam Ellynham, Sir Thomas Trivett, and Sir Henry de Ferrers, all tryed in parlement for matters don beyonde Seas.6 [fol. 2yv] The seconde 1

This passage, indented, has been crossed off and deleted from the manuscript. - before commissioners, deleted. } 35 H.8, c. 2 (Statutes of the Realm, ill, 958). 4 I R.2: nos. 38-40 (Rot. Par!., in, 10-12). -s 50 £.3: nos. 28, 34 (Rot. Par!., n, 326, 328-29). 6 7 R.2, nos. 13, 15, 17 (Spykesworth), 24 (Elmham, Tryvet, Ferrers): Rot. Par!., in, 151-56.

[R] This may be omytted quid ante a

[R] Omytt this

[R] Accusacion. Indictement.

36 [L] Accusacion Ex parte domini Regis.

[R] Accusacion. [L] Leave 2 sydes

[L]

[R] ex mandato4 domini Regis. [L] anno 5'" H.4. [R] Comites Northumberland


thinge considerable herin, is the Order yt selfe, which I conceave to be offeree notwithstandinge the said Statute of .35.H.8 for that yt is neither directlye contrary to that Statute, nor repugnant to the Common Lawe. Otherwyse, an Acte of the one House alone, cannot alter a former Statute made by consente of bothe Howses. And this is to be remembered, that the proceedinges against a Peere in parlement, respectes only the use of the Parlement, and not the forme of the Common lawe (front II R.2.).1 Soe that an Indictment of a Peere in tyme of parlement is not necessarye. But thus yt hathe used to be vizt. The Peere accused is to be brought before the Lords and Commons, and then the Lord Stewarde2 to sytt in the Chauncellors place on the woollsacke, and the Articles to be reade against him by the Clerke of the Crowne, & uppon his aunswere the Lords to determyne of their Judgement, which is afterwards pronounced by the sayd Stewarde. A Question maye be whether the Commons have used to sytt with their Speaker at theis tryalls, and yf they have, then the Courte of Requestes or some such place may be provyded for that purpose. And thus that cause myght have ben wholly reteyned in parlement notwithstandinge the sayd Statute of 35.H.8. [fol. 30] Thus much touchinge that Accusacion ex parte domini Regis which is exhibited by a formall informacion by the Kings Attourney. The Duke of Clarence was arraigned in Parlement anno 18.£.4. uppon the lyke informacion but the president is not on the Parlement Rolls and therefore I have omytted yt here.3 2. The seconde kynde of Accusacion on the Kings behalfe, is ex mandato domini Regis,, uppon the retourne or viewe of any proceedinges ellswhere against the delinquent or uppon his owne peticion. The presidents therof are theis. Anno $l° H./j.. The Erie of Northumberlande was tryed in Parlement ex mandato Domini Regis uppon his owne Peticion. The occassion & the manner therof was thus. 5 The sayd Erie had raysed forces to have ioyned with his sonn Hottspurr in rebellion against the Kinge, pretendinge that he raysed them to assiste the Kinge. Hottspurr was slayen at the battle of Shrewesburye .21. Juki, anno 4.H.4. before the said Erie coulde ioyne with him. Wheruppon he dismissed his forces and retyred to Werkeworth castle. The Kinge, after the battell, comes to Yorke, and sent for the sayd Erie, & beinge come, pardoned his lyfe, but abridged him of his liber tie. The next Parlement was summoned .20. Octobris to begynn at Coventrye .3. dec. followinge. And the 1 3 5

II R.2: n. 7 (ibid., 244). See below, pp. 74—75.

2

of englande or the of the Kings House, deleted. 4 praecepto, deleted.

5 H-4: nos. 11-12 (Rot. Par!., ill, 524).

The Accusation

37

Erie of Northumberlande had his writt of Sommons. This Parlement was prorogued 23. Novembris by new writts (as the manner then was) unto Westminster Crastino Hillarii followinge but the Erie then had noe newe Sommons. Thither he [fol. 3ov] comes a Peticioner. Speede sayes he was abridged of his libertye, but the Recorde sayeth he came before the Kinge and Lords, & not that he was brought, as prisoners are (Gomeniz & Weston i° R.2),1 nor that he was caused to come as delinquents being sente for. (Allice Perrers anno i° R.2).2 But that he came before the king and the Lords and Commons in Parlement. And then the Chauncellor of Englande tollde him, that on Wensdaye laste paste he had ben before the Kinge and the Lords and Commons in the same parlement, and had besought the Kinge, as he had done before at his comminge before Him at Yorke, that the Kinge woulde doe him Grace for his misprisions against Him in not keepinge His Lawes and Statutes, as by one Peticion by him delyvered in Parlement in English the tenour wherof followeth, may more at full appeare. To my most dreadefull and Souereigne Liege Lorde. I your humble Liege beseech to your highnes to have in remembraunce my comminge to your worshipfull presence into Yorke of my free will by your goodly lettres etc. The which peticion per commandement dn Roy was examined by the Justices to have their counsel and advyse therin. But the Lords by protestacion made claymed the Judgement in such causes to belonge unto them only etc.3 And soe the Lords tryed him and acquitted him of Treason & felonye but found him guiltye of a trespas only which the King pardoned. Here noe Informacion was exhibited against the Erie of Northumberland yett the Kings Counsell dyd open his offences unto the Lords, otherwise howe coulde they appeare?4 [fol. 3i] 5 Anno y.H./j.. The Kinge commaunded the Lords Temporall in Parlement to assemble and advyse what manner of Proces shoulde be made, and what manner of Judgement should be rendred against Henry Percye late Erie of Northumberland and Thomas Bardolf late Lord Bardolf for certayne yll deedes which they had lately committed contrary to their allegeaunce. etc.6 1 3

4

I

R.2:

n.

38

(ibid.,

10).

2

i

R.2:

n.

41

(ibid.,

12).

Here a sentence has been deleted, which is difficult to read: I confesse this president is not proper for this place for that the Lords might have proceeded against the Erie uppon his peticion.

5 H.4: nos. 11-12 (Rot. Parl., Ill, 524). In this Parlement begunn at Westminster 6 Febr. anno \m" Caroli Regis, deleted. 6 7 H.4: n. i (Rot. Par!., ill, 604).

5

[L] Accusacion. ex mandato domini Regis.

[R] Accusacion. Ex mandato domini Regis.

[L] anno 7™ H.4. [R] Comes Northumbr.

38

[L] Accusacion. ex mandate Domini Regis:


Att this their assembly (or meetinge) the Constable of Englande shewed unto them the Processe made in the Courte of Chivalrie against the said Henry de Percy uppon Articles of Treason committed by him and by others of his covyne. In which Articles are named the Archbishop of Yorke, & Thomas Mowbraye Erie Marshall, the sayd Erie of Northumberland, the said Lord Bardolfe, and many others, and their severall treasons are therin conteyned. The Lords havinge advysed theron, and considered of the proofes, they delyvered their opynion to the Kinge touchinge the said Erie of Northumberland & the said Lord Bardolfe only, and proceeded to Judgement against them. Then the Kinge caused to be demaunded of the sayd Lords Temporalls Peeres of the Realme, what they would saye touchinge the Acte of the [fol. 3iv] said late Archbishop of Yorke, and of the sayd late Erie Marshall, whoe lately with a greate multitude of people were armed and arrayed in the field within the Realme of Englande with banners displayed, etc. Unto which demaunde the sayd Lords Temporalls sayed that accordinge to the Informacion unto them gyven by the sayd Constable, yt seemeth unto them to be Treason. Yett notwithstanding the sayd Lords desyred, that with good deliberacion at their retourne to Parlement they myght speake therof unto our Lorde the Kinge as noe Errour myght be founde in their doinges in tyme to come. (This was done 19. Junii. on which daye the parlement was adiourned.) Here the Lords had noe other Accusacion against theis twoe Peeres then the Kinges commaundement uppon viewe of former Process againste them in the Courte of Chivalrie. And the Lords delyvred their opynions touching the Archbishop of Yorke and the Erie Marshall (though their Treasons were conteyned in the said Processe allso) leaste Errour myght be founde in their doinges herafter. But whether they thought the Errour to be for that the kinge had not commaunded them first to advyse theron touchinge the said Archbishop & Erie Marshall, as He had done touchinge the others, Lett the Reader Judge. For my parte I thinke that woulde have ben the Errour, for, howe coulde the Lords proceede uppon Proces begunn

ellswhere, unlesse the Kinge Commaundes them./. [R] Accusacion. ex mandato domini Regis. \L\_anno 2d° H.6 [R] Sir John Mortymer.

[fol. 32] Anno 2d° H.6. The Judgement against John Mortimer is drawn up very briefly by John Hales one of the Justices of the kings benche. Wherin he firste shewes that the said Sir John Mortymer was indicted in London sittinge the Parlement before the Maior of London & other Commissioners appoynted by the Kinge, for that the said Sir John beinge committed prisoner to the Tower for sus-

picion of Treason, corrupted his Keeper and brake prison. That the

The Accusation said Indictement was retourned into the Chauncerye de Mandato domini Regis, and by the Chauncellor brought into the Parlement before the Duke of Gloucester the Kings Protectour & the Lords Temporalls (the Kinge beinge then an Infant & the Protectour beinge authorised by Commission to holde the Parlement), de praecepto dicti Dutis. That the sayd Sir John Mortymer by virtue of the Kings writt was brought before the said duke and Lords in parlement. That the said Indictement was reade unto the said Sir John Mortymer in presence of the said duke & Lords, & of the Commons. That the Commons affirmed the said Indictement to be trewe, and desyred Judgement against him as convicte of Treason & felony. And lastly That he was thereuppon Judged.1 In this is sett downe all the essentiall partes of the Lords proceedinges against Mortymer: but the [fol. 32v] Ceremoniall or formall partes therof are omytted, as whoe complained of or accused Mortymer to the Parlement, the Kinge, or the Commons. Surely the Commons dyd not, for then there needed noe Indictement. And therefore yt must move from the Kinge, either before the Indictement: or (rather) uppon the retourne therof unto the House. For, had the Accusacion ben before the Indictement, yt had ben a shorter waye to have arraigned him allso before Commissioners in London (he beinge noe Peere of parlement) then to retourne the Indictement into the Chauncery, & thence to be brought into the parlement etc. Here is allso omytted the Conference afore hande betwene the Lords and Commons touchinge this matter, For yt is unlykely that the Lords dyd sende sodenily for the Commons and then abruptly reade the Indictement before them, and they as sodenily affirme the same. All theis are necessarily understood. By this that the Commons affirmed the Indictement etc., yt appeares that the Lords cannot (of themselves) fudge a Commoner for a capitall offence, for he is not their Peere accordinge to that of 4.E.3. n.2. et .6.2 [fol. 33] [Accusacion ex mandato Dommorum]

T

He thirde manner of accusacion by Informacion ex parts domini Regis, is when the Commons, or any other pryvate person accuse any man unto the Lords in generall, but doe not declare the offence in particuler, Then by commaundement of the Lords, articles are drawen up against the delinquent ex parte dommi Regis. The presidents are theis. Anno i" R.2. The Constable of the Tower was commaunded to 1 2

2 H.6: nos. 17-18 (Rot. Par!., iv, 202). 4 E.3, nos. 2, 6: Rot. Part., n, 53, 54.

39

[L] Accusacion. Ex mandato Domini Regis

[R] leave 2 sydes

[ Hi [R) Accusacion. ex mandato Dommorum:

anno i° .R.2.


40

[R] Gomeniz et Weston.

brynge Gomeniz and Weston (whose offences were complayned of in generall by the Commons, but they not named) before the Lords in Parlement to aunswere unto the Articles which shalbe obiected against them on the behalfe of the Kinge etc. And they were severally arraigned at the Commaundement of the Lords etc.'

[L] ibidem \R] Allice Ferrers.

Eodem anno Allice Ferrers (beinge complayned of by the Commons) was caused to come before the Lords in Parlement to aunswere unto certeyne thinges which shalbe obiected against her On the Kinges behalfe. And theruppon Sir Richard Scroop Chevalier steward of the Kinges House, by commaundement [fol. 33v] of the Lords reherced in Parlement in presence of the sayd Allice a certeyne Ordinaunce etc. (made in the parlement of 50.£.3, against her.)2 And this Rehersall beinge made, the sayd Stewarde surmysed unto the sayd Allice, that yt Seemes unto the Lords of Parlement, that she hathe encurred the payne comprised in the sayd Ordinaunce in certeine poynts, and in especiall in twoe, that is to say. etc. By these twoe presidents yt appeares playnle enough that the Lords commaunded the Articles to be drawen & exhibited, though ex parte domini Regis, for all thinges ells are sayd to be done by their commaunde and the practisse at this daye is, that out of the complaint of the Commons (as in that of Mompesson, the Lord Chauncellor & Lord Treasurer) a Committee of the Lords dyd drawe up the charges, but those wanted the words ex parte domini Regis. The reason whye in this case the Articles are to be ex parte domini Regis, seemes to be this: The Commons complayne, but ympeache not: and without an ympeachment the Lords cannot proceede, neither cann they ympeache any to themselves: soe it restes that the practice is to be ympeached at the kinges suyte.

[L] Accusacion. ex mandate Dominorum.

[R] Accusacion. ex mandate Dominorum.

[fol. 34] Yf it may be lawfull for me to examyne the proceedinges of the Lords in the complaints against Mompesson, the Lord Treasurer, etc. and to compare them with the auncient proceedings in lyke cases, they wyll appeare to differ much. First touchinge Mompesson. The Commons dyd not only complayne, but accuse him. He fledd. In his absence the Lords ought not to have proceeded to Judgement agaynst him, before proclamacions firste made for him to appeare before the Kinge & them at a daye. The auncyent use in such cases was this. The Lords to consider of the complainte & examyne the proofes produced by the Commons, then to agree on their Judgement,3 & to cause proclamacions to be made through Englande for the partie to appeare at 2 ' i R.2: n. 38 (Rot. Parl., ill, 10). 50 E.j: n. 45 (Rot. Par!., II, 329). & to acquainte the Commons therewith, deleted.

3

The Accusation a daye, or ells Judgement shalbe pronounced against him, withall which the Commons are to be acquainted before the proclamacions are sent out. At the daye, the Commons are to be sent for agayne, the retourne of the proclamacions to be viewed and examined, & yf any errour be therin, then newe proclamacions to be made in the next shire only for the partie to appeare at a shorte daye. Yf they fynde noe errour in the retournes, then the Judgement is to be pronounced, & not before. Thus was yt anno 21.R.2. in Thomas Mortymers case, and .y.H.4. in the Erie of Northumberlands. 1 But there needed noe Articles to be drawen up ex parte domwi Regis, out of the ympeachement of the Commons, for the suyte is theires and not the kings. [fol. 34v] Touchinge the Lord Treasurers. Firste the Commons dyd swerve from the auncyent course in this, that they delyvered not their accusacion in wrightinge (he beinge absent) had yt ben in the open House an ympeachement by worde had ben sufficient etc., the suyt had ben theirs; but yt beinge at a Committee, howe coulde the Lord Treasurer take noatice of their ympeachement? Wherefore the Lords of necessitye dyd drawe up a charge against him out of their accusacion & then yt became the kings suyte and they were abridged from power to replye, or demaunde Judgement, front in Westons & Gomeniz case anno \° R.2. and Allice Ferrers, ibidem.2 Neither was yt nowe necessary for the Commons to be acquainted with the delinquents aunswere, or any of the proceedings against him, for that they dyd neither demaunde that he myght be putt to his aunswere before the Lords and them, nor ympeached him by worde in the open House, nor by wrightinge, one of which is requyred in an ympeachement. And the Lords, theye varyed in this, That they dyd myngle other complaynts with those of the Commons, eache shoulde have ben a parte by ytselfe front 42.£.3 Sir John at Lee.3 Neither dyd the Lords use (aunciently) to omytt any parte of the Commons complainte and accusacion, as they dyd the ymposicion on the frenche wynes. And the Articles of the charge they sent to the Lord Treasurer shoulde have ben ex parte domim Regis, front in the former precedents of i° R.2./. [fol. 35] The next president is anno 7.R.2. uppon the demaunde of the Commons against the Bishop of Norwich and others, vizt. 4 1

21 R.2: n. 9 (Rot. Par!., in, 380-81); 7 H-4: nos. 1-14 (ibid., 604-607). - I R.2: nos. 38-40, 41-43 (ibid., 10-14). 3 $ee below, pp. 42-43. 4 7 R.2: nos. 15, 18-21 (ibid., 152-55). 5 Leave 2 sides, deleted. The rest of this page and all of the following page have been left blank.

41

Accusacion. ex mandate Dommorum.

Accusacion. ex mandato Dommorum. I want this at Large.'

42


[

[fol.37] Of accusation by complaints of prypatt persons

[R] Accusacion. By pryvatt Persons./

[L] Accusacion. by a pryvatt person.

[R] Accusacion. By pry vat t persons.

I

Doe not remember any presidents of this manner of Accusacion, for publique offences, unlesse the partie complaynant be particulerly interessed therin. Yett I double not but such complaints have ben, and may be receaved, & the parties proceeded against in Parlement: Or ells that highe Courte shoulde not have soe much authoritye to receave Informacions pro domino Rege from pryvatt persons, as the infenours have. But what hathe ben done shall appeare by the presidents. I wyll omytt all complaints of particuler wrongs except yt be of bribery, extorsion, or oppression in men of Authority. 1

Anno 42.£.3. Wylliam Latymer exhibitted his peticion in Parlement unto our Lord the King and to His Councell, shewinge that he had the wardship and maryage of the heir of Roberte Latymer by meane graunte from the kinge, and helde the same untill Monsieur John at Lee (then Stewarde of the kings House) sent a Sergeaunt at Armes to brynge him to London & commaunded him beinge come not to departe without his leave uppon peyne [fol. 3yv] of a thowsand marks. And afterwards woulde not gyve him leave to departe untill he had surrendred the bodye of the sayd heire and the Kings Patente unto him the sayd Monsieur John, etc. Wheruppon the sayd John was putt to reason before the Lords, etc. n.20 et 21. 2. And allso the sayd John was putt to reason before the sayd Lords for this, that when he was Stewarde of the kings House, he caused dyvers to be attached by their bodyes, some by Sergeaunts at Armes, & some otherwise as Wylliam Latymer & others & to be brought before himselfe as before the kings Counsell etc. n.22. 3. And allso for executinge the Authoritye of the Stewarde out of the verge, etc. n.23. 4. And allso for discharginge out of Newgate by his owne Authoritye & against the justices commaundement, Hughe Levenham provour whoe had appealed soundrye men of felonies etc. n.24- 2 5. And allso, that he beinge sworne of the kings Counsell dyd bargayne with Nicholas Levayne for the Manner of Reynham in Kente which the sayd Nicholas claymed to houlde duringe the minoritye of the heire of John of Staunton; wheras the sayd John at Lee knewe that the same Mannor was holden of the Kinge in chiefe of the Castle of Dover, n.25. 3 [fol. 38] Theis be the particulers where with the said John at Lee was charged. Yt appeares that Wylliam Latymer accused him of the ' A space follows in the manuscript. - 42 £.3, nos. 20-24: Rot. Par!., II, 297. 3 42 E.3, n.25: ibid., 298.

The Accmacion firste; but not whoe of the rest. But I ymagine that the Commons accused him of the seconde and thirde particulers, for that they are layd som what generally and are offences against the Liberties of the Commons,1 and allso for that dyvers of the Commons were present at the hearinge. And for the 4^ and $tb particulers I suppose that the Kings Councell accused him therof, for that the one is an offence against the Legall proceedinge of Justice, which then was that the *provour, that is, he which accused any man of felony, etc. shoulde remayne in prison as well as the accused untill tryall: (of latter tymes the accuser putts in suerties to prossequete etc.) and the other offence is a particuler wrong done unto the Kinge in his revenues. And, had any pryvatt persons accused him of theis their peticions woulde have ben recorded ass well as Latymers. But the Lords proceeded against him firste uppon Latymers Accusacion: & then uppon the rest severally: they dyd not myngle one with another. [fol. jSv] Anno 50 £.3. The Commons accused and ympeached Wylliam Ellys n.3i. And afterwards John Botilde and Wylliam Cowper exhibited their twoe Bills against him to this effecte.2 To their thryce redoubted the Lord the Kinge and to His sage Counsell sheweth John Botilde of L. that the Mondaye next after the ascencion of our Lorde in the 49th yeare of the reigne of our Lord the Kinge that nowe is, a shippe of Gotelande in Pruse was chased by tempest into Kirkebroade (wherof the masters name was Henry Luse) charged with dyvers merchandises etc. And that the same day one Wylliam Savage clerke & servant of Wylliam Ellys, by commaundement of the said Wylliam, tooke of the said shipp for the merchandises not discharged there .17. nobles, and a last of. etc. And bycause that Wylliam Ellys knew that Wylliam Cowper was to come to this parlement and shewe theis grievaunces and others in ayde of the Merchaunts, and allso to shewe howe the greate prices of herringes myght be amended in ayde of the wholl realme, The sayd Wylliam, by his false suggestion, caused the sayd Wylliam Cowper to be arrested & putt into prison in the Tower for .3. weekes May yt please your etc. (Here I observe that the Accusacion of a Pryvatt person ought to be legall and certeine as this was.) [fol. 39] This accusacion consistes of 2 partes, the uniust takinge of .17 nobles etc. from the Merchaunts of Pruse, and the ymprison1

2

Originally Elsyng had written: 'against the Commonwelthe', or 'against the Liberties of the Commonwelthe'. 50 £.3, n. 31: Rot, Par!., n, 327-28.

43

[L] *(probator)

[L] Accusacion By pryvatt persons.

[R] Accusacion By pryvatt Persons.


44

[L] Accusacion By pryvatt persons. [R] vide the Recorde [R] Accusacion. By pryvatt persons. [L] vide the Recorde. [R] Accusacion. By a privatt person. [L] anno 7" R.2. [R] M de la Pole — Chauncellor.

ment of the peticioner by false Suggestion, which by the proofes appeared to be by false Suggestion to the Kinge. Uppon hearinge of the matter, the Lords Ordered that this complaint touchinge the said .17. nobles should be sente into the Kings benche to be tryed there. But the Lords themselves determyned the ymprisonment uppon false suggestion to the Kinge, and awarded Ellys to to [sic] prison, and to paye fyne and ran some to the Kinge, & damages to the Accusers. The Lords reteyned the latter parte of this complaint for .2. causes. The one, for that false Suggestion to the Kinge is lymited by the Stat. of 3 7.£.3. to be punished by the Chauncellor, the Treasurer, & the Councell, yf yt be untrewe, all which were present in the parlement. 1 The other, for a scruple which myght aryse out of the wordes of that Statute which provydes against false Suggestions only unto the Kinge himselfe, wheras Ellys his false Suggestion was by a lettre wrytten unto one of the kings servaunts, which beinge shewn to the Kinge His majestie commaunded the peticioner to be ymprisoned: and this the Lords expounded to be in Ellys a Suggestion unto the Kinge himselfe. Had this poynte ben clerely tryable at the common Lawe, the Lords had remytted yt thither allso. This is but rriyne owne conceipte. [fol. 39v] Anno Py persons

Accusacion. By pryvatt persons.

Accusacion. By pryvatt persons.

46

[R] Accusacion. By pryvatt persons

[L] Accusacion. By pryvatt persons.

Judicature in Parlement plaint was made, yt beinge done in plena parliamentlo and in the Judges awarde to whom this matter was after ward referred, yt is sayd to be coram Magnatibus et communitate in parliamento^ soe then the Aunswere was made some other tyme). First he protested his Innocencye. Touchinge the delaye of Justice, he shewed howe the delaye was through the difficultye of the cause, & vowched the Justices & Sergeaunts whoe had often herde the pleadinges. Touchinge the Bribery, he swore by the Sacrament he had noe knowledge therof, untill uppon accompt with his Officers he found these fishes not payd for, & then he presently caused them to be payd for & that bonde to be cancelled & sent him. He denyed that his Clerke ever moved him in that buissines etc. All which he offred to prove in such manner as the Kinge and the Lordes shoulde ordeyne. And demaunded Justice against the Fishmonger, for his Slander, etc. [fol. 43] Unto this, the Fishmonger presentlye aunswered and sayd, That he dyd not accuse the Chauncellor himselfe, but his Clerke only. The Lords examined, the Fishmonger and the Clerk touchinge the bonde. etc. and his adversaryees (uppon their allegeaunce) whether they had gyven or promissed any thing, etc. And fyndinge the Chauncellor free from Briberye, the Lords acquitted him of the accusacion aforesaid. Then at the Chauncellors request, the Fishmonger was committed untill he founde suerties to appeare de die in diem before the Lords, and before any other Judges whoe shoulde be assigned etc. The Lords committed the Clerke allso. And afterwards the parlement growinge to an ende the complainte is referred wholly to the Justices to heare and determine the same asswell for the Kinge as for the parties accordinge to Lawe, auxi avant come les Seigneurs de parlements myght have done, yf the pleinte had ben fully treated in their presence & in the parlement. The proceeding before the Justices is in a Schedule annexed to the parlement roll & was thus. [fol. 43v] A Commission was graunted in the parlement, unto Tresilian the chief Justice of the kings benche, Bellknapp chief Justice of the common pleas, and to Fulthorp a Justice of the common pleas, to heare & determyne this accusacion & sclander. etc. They mett at Westminster, 14 Junii, and were assisted by the Treasurer, the Keeper of the Pryvye Scale, the Master of the Rolls, and the kings 2 Sergeaunts and called the Fishmonger before them, & caused to be recyted the said accusacion, & the Chauncellors aunswere, and then demaunded of him what he coulde saye whye he should not undergoe the penaltie of the Statute against such Scandalls, especially when as the Chauncellor hathe acquitted himselfe in the parlement, & is yett ready to acquitt himselfe therof any way possible.

The Accusation

47

The Fishmonger denyed he sclandered the Chauncellour; but the Clerke only etc. The Commissioners considering the Accusacion & aunswere in parlement, and especially that the Fishemonger sayed, He coulde not have Justice in his cause before the Chauncellor; the contrary wherof was expressly proved out of the Records in the Chauncery, etc. they adiudged him convicted of the deffamacion etc. & to paye 1000. marks to the Chauncellor & to be ymprisoned untill he had payed the same, & a competent fine due to the Kinge.1 Yt shoulde seeme the Lords had had not tyme to examyne the Iniustice which he complayned of: and therefore referred his accusacion to the Judges, etc. [fol. 44] Anno 6.R.2 Octab. Michaelmis n.59. There were dyvers [L] [R] Accusacion. bills exhibited this parlement by the Maior, Aldermen and Citisens By pryvatt of London concerninge the Fishemongers. And the said Maior and persons. Aldermen and manye of the Fishemongers were presente at the readinge therof. Where Nicholas Exton whoe spake for the Fishmongers, prayed the Kinge to receave him and his companye into His Majesty's proteccion. n_59. which was graunted. n.6o. Then one Walter Sibill (a Fishmonger) craved audience. And sayed, That theis Bills were not exhibited for any good zeale to the Commonweale, but for meere mallice to the Fishemongers, for that the chiefe exhibitors of those bills, beinge commaunded to prison for soundrye missdemeanors in time of £.3. were then ymprisoned by certeyne of the Fishemongers then beinge chiefe Officers in London for which cause mallice was borne to that tyme. n.6i. To that one John More a mercer aunswered, That the Citisens of London ment to keepe the peace towards them, unlesse they wente about to lett into the said Cittye the Rebells of Kente and Essex as they the said Walter and others latelye dyd. n.62. [L] Accusacion. [fol. 44v] The said Walter Sibill tooke advantage of theis words, and desyred the Lords to beare wyttnesse. John More theruppon expounded his words sayinge, as the reporte then wente. And prayed the Lords that the truthe therof myght be further enquyred in the Cittye, which was graunted. 2 Here was an accusacion by accident.* [fol. 45] There is one only president of a complaint made by a pryvatt person in the House of Commons, & of the Commons proceedinge therin against a Lord of Parlement, which was thus. In the parlement of anno 25'° H.8. Thomas Phillips exhibited unto the Commons his bill of complainte against John Bishop of London, for 1a

7 R.2: nos. 11-15 (ibid., 168-70). 2 6 R.2: nos. 60-64 (ibid., 143). 3

The rest of this page is blank.

[L] [R] Accusacion. by pryvatt Persons./ [L] anno 25 H.8 [R] Bishop of London.


48

his longe ymprisonment uppon suspicion of Heresye. The Commons sende up this bill (beinge written in paper) amongest others unto the Lords, without any message for ought appeares uppon Recorde on Satterdaye, jmo Febr: On Mondaye followinge, the bill is reade, and the Lords excogitabant that yt dyd not belonge unto their House de talibus frivolis rebm consult are > and therefore retourned to the bill unto the Commons. Heruppon the Commons sent unto the Bishop for his aunswere in wrightinge unto this complaint, which the Bishop forbare to doe untill he knewe the opynion of the Lords herin: And acquainted their Lordships therewith on the next daye. The Lords aunswered all with one voyce, quod non consent anium fuit aliquem Procerum alicui in eo loco respomurum./ Lune .2. Marcu.j.1 [R] Accusacion. By pryvatt persons. [L] anno l&.Ja:

[fol. 46]z In the Parlement begunn at Westminster anno 18. Jac: Sir John Bowser Knight 3 complayned of the Bishop of Lincoln then Lord Keeper for4

[R] Lord Keeper.

[fol. 48] Q.J) Accusacion by Appeale.

M [R] Accusacion. by Appeale.

mo

Nno io

R.2. the Commons accused M. de La Pole openly in the before the Kinge and Lords: unto which the Chauncellor made a good aunswere (in the opynion of this Age), yett uppon the many Replicacions of the Commons and the inforcement of his Oathe strictlye against him, he was Judged, fyned, & ymprisonned etc.5 In this Parlement allso the Lords and Commons procured a Comission unto certeine of the Lords to enquyre of the enormityes of the Realme and to redresse the same.6 The Kinge was soe highly displeased with theis proceedings that on the last daye of the Parlement, being the 25 th of November, He Himselfe protested that nothinge don therin shoulde tourne to the preiudice of Him or His Crowne.7 Afterwards He sought all meanes to overthrowe those Lords whoe procured that Commission, vizt. The duke of Gloucester, the Erles of Derbie, Arundell, Warwycke and Marshall. And at a consultacion theron He sente for the chiefe Justice (Treselian) and some other Judges, & his Sergeaunts at Lawe unto Nottingham, where on the 25 th of August, anno nm\ He propounded certeyne Articles unto them, conteyninge [fol. 48v] all the poyntes of advan-

A Parlement

1 3 4

2 LJ, I, 65-66, 71. Fol. 45v is blank; fol. 46 contains only three lines. Probably Elsyng is referring to Sir John Boucher (LJ, HI, 179, 189).

There is no fol.. 47, and fol. 46v is blank.

-s 10 R.2: nos. 6-17 (Rot. Par!., Ill, 216-20). 6 10 R.2: n. 20 (ibid., 221-22).

7

IO R.2: n. 35 (ibid., 224).

The Accusation tage against the proceedings of the laste Parlement, which the Judges affirmed to be Treason under their handes and Scales. Then the Kinge thought to proceede Judicially against those Lords: but they kepte together with the Duke of Gloucester at Haringey with a stronge garde. Att laste the Kinge sente for them, and all doubts of daunger to their persons beinge first removed, they came (in November anno n"20), & kneelinge before the King His majestic demaunded Why they were assembled at Haringey Parke in warlicke manner; They aunswered for the good of the Kinge & Kingedome, and to remove certeine Traitors about Him, naminge the duke of Irelande, the Archbishop of Yorke, Michell at the Pole, Sir Robert Tresilian and Sir Nicholas Brembre: And with that they threwe downe their gloves as gages of a Challenge to prove the same. Unto which the Kinge replyed, this shall not be done soe; but at the next Parlement (which shalbe the morrowe after Candlemas) all parties shall receave accordinge as they deserve.1 In the meane tyme the kinge conveyes awaye the parties accused: and acquitts them by Proclamacion. [fol. 49] The Kinge Sommoned a Parlement accordingly at Westminster (Crastino Pureficacioms anno \\mo R.2) whither those fyve Lords Appellants came well Armed which made the Kinge unwyllinge (at the firste) to come amongest them. Yett at last He came. haec ex sp. Chron. fol. 603.2 On the firste daye of this Parlement, the Duke of Gloucester (one of the said Appellants) kneeled before the Kinge. And shewed that wheras he understood, that His Majestic was informed that he entended the deposinge of him, and the advauncinge of himselfe to the Crowne, he was readye to declare his Innocencye herin, in such sorte as the Lords would ordeyne. Wherunto the Kinge aunswered that He helde him therof acquitted, etc. On the seconde daye of the Parlement, the said Appellants exhibited their Peticion unto the kinge conteyninge severall Articles 3 against dyvers Lords and Commoners whom they Appealled of Treason. The said Articles beinge reade in presence of the Kinge and Lords in parlement, the sayd Appellants offeringe to make proofe therof, requyred that the sayd Appellees myght be called to aunswere. And, for defaulte of their appearaunce demaunded Judgement against them. Herin the Kinge and Lords deliberatt; [fol. 49v] and the Judges4 of the common Lawe5 and6 the Sages of the Lawe 1

Here ex chron. sp: fol. 602 et 603, deleted. Possibly Speed, The History of Great Britaine, 615.

2

Ibid., 615—16. 3 of Treason, deleted. 4 and other Sages, deleted.

5

were charged by the king, deleted. 6 all so of, deleted.

49 [L] Accusation. By Appele

[R] Accusacion By Appele.

[L] Accusacion By appele.


50

[R] Vide the Recorde.

[R] all in

romane lettres. [R] Accusacion. By appele.

Civill, were charged by the king to gyve their best Counsell unto the Lords of the Parlement, howe to proceed rightly in this Appeale. Whoe all, after longe consultacion, aunswered the Lords, that the sayd Appele is in noe pointe made or declared accordinge to the order of either Lawe, Commen or Civill. The Lords after longe debate declared by assent of the Kinge, That the Offences beinge committed by the Peeres, the cause shalbe determyned in Parlement only: and that by the Lawe and Order of Parlement. And adiudged the sayd Appeale with the Process theron dependinge to be good accordinge to the Lawes and course of Parlement. And then the defaulte of Appearaunce was recorded and Judgement gyven against [blank] whoe made their defaulte.1 After which Sir Michell Brember Knight (a Commoner) was brought prisoner before the King and Lords at request of the sayd Appellants. And the sayd Articles beinge reade, he pleaded not guilty which he was ready to defende with his bodye. Wheruppon the Commons of the parlement [fol. 50] sayde, 'that they had scene and considered all the said Articles, which they founde to be trewe: and, that theye lykewyse in as much as in them was, dyd allso accuse the said Appellees: which they woulde have done, and perteyned to them to have done, had not the aforesayd Appellants pursued the sayd Appeale.' Wheruppon was aunswered by the Lords of parlement that the Battle dothe not lye in this case. But they uppon examinacion of the Articles would precede to Judgement, etc. Here I noate, that the Lords cannott proceede against a Commoner but uppon the complainte of the Commons.2 But here is not expressed Howe the Commons came duely to have a syght of theis Articles. I conceave that after they were reade in their presence (for their presence is all wayes understood in Judicature uppon lyfe and death front paste a) they demaunded a syght of the Articles; & considered of them aparte. And then supplyed the defectes therof in this, that they allso accused the Commoners; as the Lords dyd their owne Peeres. I suppose that Brembre was denyed the Battaille bycause the Commons accused him allso. otherwyse he ought to have had yt graunted uppon the Appele. Afterwards, the Commons themselves accused and ympeached dyvers Commoners, front 2do Martii^ Sir Roberte Bellknapp late 1 A blank of several lines follows, presumably for the entry of the names of those 2

against whom judgment was given. front ante a, deleted.

51

The Accusation chiefe Justice of the Common pleas, Sir John Gary Late chief Baron and other Justices etc. [blank] were brought into the Parlement at the request of the Commons. And the Commons accused [fol. 5ov] the sayd Justices for their untrewe aunsweres made unto soundry Questions before the Kinge at Nottingham to the emboldeninge of the aforesaid Offendours in their Traiterous attemptes. etc. Unto which they aunswered etc. were judged etc. Then followeth another ympeachement of the Commons thus. The accusements and ympeachements made by the Commons of the Realme against Sir Symon de Burle, Sir John Beauchampe, Sir John Salesbury, and Sir James Berners knights, ensue underwritten wherof the Commons praye Judgement in this present Parlement. Thus much touchinge the Appeale of .u^.R.i.1 This of nmo begotte another Appeale in 2imo R.2. (tenn yeares after) in the parlement 14. Sept.2 On the feaste of St. Osswarde, which was the [blank] daye of August before that parlement begann, Edwarde Erie of Ruttlande, Thomas Erie of Kente, John Erie of Huntingdon, Thomas Erie of Nottingham, John Erie of Somersett, John Erie of Salisbury, Thomas Lord Despencer, and Wylliam Lescrop Chamberleine unto our Lord the Kinge, in their propper persons delyvered unto our sayd Lord the Kinge, He syttinge in the greate Hall within His Castle of Nottingham [fol. 51] in His Royall Estate with His Crowne on His Heade, a Bill of Appeale against Thomas Duke of Gloucester, Richard Erie of Arundell and Thomas Erie of Warwicke./ The which bill of Appeale is recyted in that parlement, and (as yt seemes per copiam inde perborurn) was penned by the advyse of some Civill Lawyer. Yt seemes allso that they were very carefull herin to avoyde all Errours of the former Appeale anno nm".3 They appealed dyvers Commoners. Theis the Lords (their Peeres) only. They by worde of mouthe, beinge called to the Kinge uppon some other occasion; Theis by a byll in wrightinge solempnly delyvered unto the Kinge syttinge in His Throne of Estate. They offered to prove their accusacion by battle (a thinge not meete for the parlement). Theis, in what Courte yt shoulde please His Majesty to Ordeyne. And, the said Bill beinge reade in Parlement, they sayde that they have ben and are readye to prove the same etc. as you (thrice redoubted Lord[)] and this Highe and Honourable Courte, your Parlement, shall ordeyne. In their Proceedinges allso to Judgement, theye were carefull to avoyde the Errours of the former, prout in 1 2

II R.2: n. 6 (Rot. Parl, ill, 229-44). See also 21 R.2: n. 12 (ibid., 350). 21 R.2: nos. 1-7 (ibid., 374-77). -' 11 R.2: n. 6 (ibid., 229-36).

[L] vide the Recorde [L] Accusacion. By appele.

[L]

[R] Accusacion: by Appele.

52 [L] The Accusaoon by ^cte ppeae. p

'Judicature in Parlement The Aunswere. [fol. 5iv] But theis Appeales are nowe abollished by of Parlement, anno i°.H°.4. cap. [blank]1 and not without cause;

For as this Accusacion was extraordynary, soe was the proceedings caryed by a stronge hande. The former by the Lords. This by the Kinge (front ex Chron. M.S. compact cum Codice 1° Mailross, wherof soe much as concernes this Appeale fbllowes herafter at Large, with the presidente of .2I.R.2.) 2 Ad quodparliamentum convenire iussit Rex omnes dominos adherents sibi, cum Sagittariis. et viris Armatis, tanquam fuissent ad helium et contra bastes omnino progressuri. Ipse vero Rex ut ejficacius perficere posset nequam conceptus, congregari fecit Malefactores de Comitatu Cestriae ad vallandum latw mum. etc. Erexerat autem Rex quandam domum amplissimam in Palacio Westmonasterii quae poena totum spacium Palacii occupavit. In qua sibi tronus parabatur altissimus, et pro cunctis Regni statibus locus largus, atque pro Appellantibm in uno latere locus specialiter deputatus, et in alio latere locus Reis pro responses assignatus. Seorsim vero pro Militibus Parliaments, qui non fuerunt electi per Communitatem, front Mos exigit, sed per Regiam voluntatem. / etc. / Ferale Parliamentum nuncupatur. Thus much of Accusacion by Appeal, which was, when any Lords accused others to the Kinge out of Parlement; and the Kinge deferred the tryall until a Parlement was sommoned. But God be thanked they are abollished. The next is the parties Aunswere.

' I H.4, c. 14 (Statutes of the Realm, n, 116). The reference is to the Annales Ricardi Secundi which is one of several manuscripts catalogued with the Chronicle of Melrose (Chronica de Mailroi) in Ms. Faustina B.ix of the Cotton collection, now at the British Library (Catalogue of the Manuscripts in the Cottoman Library, 1696, Thomas Smith, ed. C. G. C. Tite, London, 1984, p. 153). The Annales have been published in the Rolls Series from another manuscript, Coll. Corpus Christi, Cant. no. vii, and the editor has collated it with that in Faustina B.ix, which Elsyng used. (Henry Thomas Riley, ed., Jobannis de Trokelowe et Henrici de Blaneforde Monachorum S. Albani, necnon jluorundam Anonymorum, Chronica et Annales, Rolls Series, 28, part 3, London, 1866. See Introduction, p. xli, for the collation with Faustina B.ix, and pp. 208—209 for the passages quoted by Elsyng.) See also 21 R.2: nos. i—10 {Rot. Par!., in, 374-82).

2

53

[foi. 53]' Touchinge the parties Aunswere. ^ I ^He partie accused is to be brought to his Aunswere, otherwise T J- the wholl Judgement wylbe Erroneous, as was Mortymers, vide 28 £.3. n.io. 2 And Spencers, anno I5.E.2. 3 And John Matravers. anno 21.£.3. n.65- in dorso.4 Allthough the partie be absent, yett the Parlement hathe used all meanes possible to have his aunswere. prout anno 2I.R.2. where the Appellants and the Commons allso accused Thomas Mortymer of Treason. And the Commons sayd that yt was notoriously known unto them that the Kinge had sente his Mandat by W. D. a Sergeant at Armes unto the said Mortymer in Irelande, commaundinge him uppon his allegeaunce to come before the Kinge in all haste to aunswere etc. And that the said Mortymer havinge noatice therof, withdrewe himselfe amongest the wilde Irishe, whither the said Sergeant nor any other Officer of the Kings durste not come for feare of deathe. Wherefore, and for that his Offences are notoriously knowen bothe to the Lords and them, theye prayed Judgement, etc. And the King and the Lords and the Procuratour of the Clergie considered of this request of the Commons with good deliberacion; And then the Lords and the said Procuratour by assente of the Kinge and Commons, dyd awarde that Proclamacions shoulde be made through [fol. 53v] Englande and Irelande commaundinge the said Thomas Mortimer to render himselfe in proper person unto the Kinge, in what place soever He shalbe in Englande, within .3. moneths next after the 23th daye of December next cominge to be at his Aunswere. etc. And they further awarded, that yf he come not etc. that then he shalbe Judged a Traitour unto the Kinge and His Realme, and convicted of all the Treasons wherof he is accused. And shall forfeite etc. Then the King adiourned the Appellants and the Parlement unto xvm" Hillarii next at Shrewsbury. On which daye the said Appellants declared unto the Kinge that yt was Awarded that Proclamacions 1 2

3 4

Fols. 52 and 52v are blank. 28 £.3, n. 10: This is the judgment; for the decision that it was in error, see 28 E.3, nos. 11-12 (Rot. Par!., II, 256). 15 E.2, Cal. Close Rolls, 1318-1323, m. nd, pp. 542-46. 21 E.3, n. 65: Rot. Parl., n, 173.

[L] [R] The Aunswere.

[R! Absent.

[i] The Aunswere.


54

shoulde be made etc. ut supra. The Commons dyd the lyke. And for that the sayd Thomas Mortymer came not, they had Judgement.1 [L] Absent.

[R] The Aunswere.

[R] deade.

[L] The Aunswere.

Anno .y.H./j.. Comimile. The Lords agreed on their Judgement against the Erie of Northumberland and the Lord Bardolfe whoe were fledd to the Rebells in Wales. And made proclamacions ut supra, through Englande. Att the daye prefixed, they examined the retournes of those proclamacions, (in the presence of the Commons, & soe the Judgement was agreed on in their presence allso, & soe yt ought to be in all cases of lyfe & deathe) and [fol. 54] fyndinge a small errour, they awarded newe Proclamacions into London only; and the retourne therof was agayne viewed and considered in presence of the Commons. And then on the next daye the Judgement was gyven.2 et vide anno .8.H.5. n.Q. proclamacions against H. Richardson & others to appear, etc. who were complayned of in Parlement./.3 Eodem anno .2I.R.2. the said Lords Appellants accused the Duke of Gloucester allso of Treason. And (allthough they knewe he was deade) they prayed the Kinge that he myght be brought to his Aunswere. Wheruppon the Kinge sente his writt to the Capteyne of Callice, (unto whose custodye He had comytted the said Duke) to brynge him into the Parlement to his aunswere. The Capteyne retournes his writt that the duke is deade. The which writt and retourne beinge read, the sayd Appellaunts prayed Judgement etc. And the Commons shewed that the duke his levyinge of warre against the Kings person is notoriously knowen unto all the Estates of Parlement: and therefore they desyred Judgement allso, and had yt. And what maye not the wholl Parlement doe when they ioyne in one? Yett notwithstandinge the Kinge fearinge some Errour (as yt seemes) [fol. 54v] The Lords Appellants besought the Kinge, that yf there were any thinge on Recorde, be yt by Confession or otherwyse which concerned their Appeale, that yt myght be openly knowen and shewen in full Parlement. Wheruppon by the Kings Commaundement was reade a Commission graunted unto Wylliam Rickhill (a Justice of the Common Pleas) and a Confession of the sayd Duke of Gloucester made before him by virtue of the said Commission. Yea, and Rickhill himselfe (beinge commaunded) dyd Justifye that the duke dyd wryte that Commission with his owne hands (in his absence) and afterwards reade yt unto him (Soe carefull theye were to have som what to supplye an Aunswere.)4

1 3 4

21 R.2: n. 9 (Rot. Par!., ill, 380-81). 2 7 H-4: nos. 13, 15 8 H.5: n. 10 (Rot. Par!., iv, 124-25), not n. 9. 21 R.2: nos. 1-7 (Rot. Parl., ill, 324-74).

The Parties Aumwere

55

I mervayll that Rickhill was acquitted of his proceedings herin at the next parlement of .i°.H.4. where he affirmed that much of this Dukes Confession was altered after he had retourned his Commission.1 He well deserved to dye in that he spake not of yt nowe/ Yett there is one President directly contrarye unto all this. vizt. anno .n.R.2 in that Appeale. which happened on this occasion. The abovenamed duke of Gloucester and .4. other Lords wente to the Kinge, and accused the Duke of Irelande, [fol. 55] the Archbishop of Yorke, Michael de La Pole and others of Treason. The Kinge adiourned them to the next Parlement promissinge them Justice there. And in the meane tyme conveyed awaye the parties accused, and acquitted them by Proclamacion. (sp. fol. 603.)2 In the next parlement (anno .n.R.2) The Articles of the Appeale beinge reade, the duke & other Appellants offered to make proofe therof, and requyred that the parties appealed myght be brought to their Aunsweres. And for defaulte of appearaunce they demaunded Judgement. Wheruppon the King dyd deliberate with the Lords; and commaunded the Justices and other Sages of the Lawe of the Lande and the Sages of the Lawe Civill, to gyve their best Counsell to the Lords howe to proceede rightly in this matter of Appeale. Whoe all, after consultacion herin had, aunswered the Lords that they had seene and considered the tenour of the sayd Appeale, which they sayd was in noe poynte made or declared accordinge to the order of the Common Lawe or Civill Lawe. (Noate they gave noe aunswere touchinge the demaunde of Judgement for defaulte of appearaunce). [fol. 55v] Wheruppon the Lords deliberated. And afterwards by the Kinge assent declared, That this cause committed by the Peeres against the Person of the Kinge and the State of the Realme, shalbe determyned in the Parlement onlye, and by noe other lawe then by the Lawe and course of Parlement. And, that yt belongs to the Lords only to Judge in such cases, with the assent of the Kinge. And the Lords with assent of the Kinge dyd Judge the sayd Appele and the Processe theron dependinge to be good accordinge to the Lawe and Course of Parlement. Then the Lords Appellants proceeded and desyred to have the defaulte of Appearaunce recorded, & Judgement gyven, & soe yt was./3 (The4 Lords havinge Judged the process to be good, the Judgement theron coulde not be Erroneous. But lett the reader Judge 1 2 3 4

I H.4: n. 92 (ibid., 430-32). Possibly Speed, The History of Great tint aim, 615. I I R.2: n. 6 (Rot. Par!., in, 229-37). This passage, here indented, has been deleted in the manuscript.

[L] Absent.

[R] The aunswere.

[L] The aunswere.

[R] omytt this.

56


whether necessitye enforced not this manner of Proceedinge. Theis had extremum ius, the others Courte favour.)

[R] The aunswere.

[R] A deade man.

[L] omytt this.

[L] The Aunswere.

[L] Sir John Mortymer [R] anno .2.H.

Soe lykewise anno .2I.R.2. after the Kinge had gotten the full power of Parlement to determine all matters begunn, into the handes of .12. Lords or any 6. and .6. Commoners or any .3. he adiourned the Parlement from Westminster to Shrewsburye, in \vmo Hillarii.1 And there on the .22th of March [fol. 56] anno .22. yt was shewen the Kinge, howe that Roberte Plesington was ympeached in the Parlement at Westminster, for beinge with the duke of Gloucester in his levye of warre at Haringey (anno .n.wzo), for which the sayd duke was adiudged a Traytour. And therefore they besought the Kinge to ordeyne the lyke Judgement against the said Roberte Plesington, though he be deade. Wheruppon our Lord the King by assente of the Lords and Knightes of Counties havinge power etc. awarded the sayd Robert guiltie etc. and that he shall forfeitt. etc.2 (See3 the Power of a Committee. This Acte of Plesington was 10 yeares before and yett beinge dead he is condemned, and not a wyttness, for oughte appears examined to prove yt.) But theis extraordinary presidents, cannot leade us into the ordynary course of Proceedinges. I only alledge them as their Errours may be avoyded. To conclude. Yt is the Just and constante course of Parlement to brynge the Partie accused to his Aunswere, yea though he flye Justice, yett to sende out proclamacions into the countryes, that, he appeare at a day, or ells such and such Judgement shalbe gyven against him. I confesse this course was omytted in the Judgement against Mompesson, [fol. 56v] anno 18 Ja: and happely yt was not then thought uppon, the Judicature of Parlement beinge soe longe out of use.4 Wherefore that cannot be alledged to be a leadinge President. And in that Judgement of anno 2.H.6. against Sir John Mortymer, uppon an Indictement of escape out of prison beinge committed for suspicion of Treason, the sayd Mortymers aunswere is not recorded, yett yt is sayd that he was brought before the Lords, & the said Indictement reade in his presence: wherefore yt is probable that he made an aunswere unto yt, though yt be not mencioned: And this proves that the Partie is to be brought to his Aunswere, ells Mortymers presence had not been necessarye.5

1 3 4 5

2 21 R.2: n. 36 (Rot. Parl., ill, 355). 21 R.2: n. 13 (ibid., 384-85). The passage, indented here, has been crossed off in the manuscript. For the efforts of the Lords to apprehend Mompesson, see LJ, in, 34—35. 2 H.6: nos. 17-18 (Rot. Parl., IV, 202).

The Parties Aunswere Anno .I7.R.2. n.20. The dukes of Lancaster & Gloucester complayne to the Kmge that Sir Thomas Talbott Knight with others con spy red the deathe of the sayd 2 dukes, & prayen the Parlement to Judge therof. The facte is adiudged Highe Treason. And writtes sent to dyvers Sheriffes to apprehende him, which writts are retournable into the kings benche. And open Proclamacion made in Westminster Hall, that uppon the Sheriffes retourne, & the not appearaunce of the said Thomas, he shoulde be convicted of Treason, and forfeicte etc.1 This was extraordynary and in ten or em. But, what maye not the whole parlement doe? They maye alter Lawes, much easier the forme therof. [fol. 57] In the Aunswere is to be considered 1. In what cases the partie is to aunswere as a Prisoner. And in what as a Freeman. 2. When Councell shalbe allowed him, and when not. 3. [blank] Touchinge the Firste, the Parlement hath guyded their Proceedings therin secundum Legem terre et Judicmm Parium^ accordinge to that of Magna Charta cap. 29. Nullm liber homo capiatur vel imprisonetur etc. nisi per Legale Judicium Panum suorum, pel per Legem terrae. And therefore in cases Capitall, whether the partie accused be a Lord of Parlement, or a Commoner, he is brought a Prisoner to his Aunswere, secundum Legem terrae. prout anno .4.£.3. n. [blank] Thomas Lord Berkle accused by the Kinge for the Murdre of E.2.2 Anno .i.° R.2. John Lord Gomeniz and Wylliam Weston, uppon the demaunde of the Commons for Surrendringe Fortes beyonde the Seas.3 [fol. 57v] Anno .4.R.2. n. [blank] Sir Ralphe Ferrers Knight apprehended for suspicion of Treason.4 Anno .28.H.6. n. [blank] allthough the Lords refused to commytt the Duke of Suffolk uppon the Commons complaynte of him for a Common fame of Treason, yett when they accused him of particuler Treasons, he was comitted n. [blank], and brought prisoner to his aunswere. n. [blank]. s John Erie of Bristol, was accused of Treason, etc. anno \" Caroh Regis and brought as a prisoner to his aunswere.//' But in Cases of misdemeanours, yt is otherwyse; there the partie accused, whether Lord or Commoner aunsweres as a Freeman; the Lord within Barre in his place, the Commoner in his at the barre; 1 2

17 R.2, n. 20: Rot. Par!., ill, 3 1 6 - 1 7 .

4 K-3: n. 16, Contra Tbo' de Berkele, Gloucestr' Wigorn\ (Rot. Parl., II, 57). -' I R.2: n. 38 (Rot. Parl., in, 10). ^ 4 R. 2: n. 21 (ibid., 92). s 6 28 H.6: nos. 1 6 - 1 7 (Rot. Parl., v, 176 77). LJ, III, 574, 578, 632.

57 .] Sir Thomas Talbott. anno .17.R.2.

[L] [R] The Aunswere.

[R] as a Prisoner.

[i.[ The Aunswere.

[L] \i] as a freeman.


58

[R] The Aunswere.

[L] The aunswere. as a freeman

and are not Committed untill Judgement. (Unlesse uppon the aunswere of a Commoner the Lords fynde cause to commy tt him till he putt in sureties to attende etc. least he shoulde flye. Prout John Cavendishe uppon the Lord Chauncellors demaunde [fol. 58] of Justice against him for his false accusacion was comitted after his aunswere untill he putt in baylle. anno .7.R.2. and before Judgement.)1 And soe Michaell de La Pole, the said Chauncellor anno .10 R.2. after his Aunswer & many replyes of the Commons, was committed and presently baylled.2 Anno .50.£.3. Wylliam Lord Latymer and John Lord Nevell beinge ympeached by the Commons, aunswered in their place.3 Soe dyd the Bishop of Norwich, & the Lord Chauncellor, anno .7.R.2.4 And the said Lord Chauncellor, anno .io.R.2. though afterwards committed before Judgement, uppon request of the Commons.5 The Bishop of Bristol anno .1°. Ja:6 The Bishop of Norwich, anno .21. Jacobi.1 And the Duke of Buckingham anno i" Caroli* They all aunswered as Freemen in their places, their offences not beinge capitall. The Lyke presidents are of Commoners. Anno .50.£.3. Richarde Lyons, Wylliam Ellys, and John Peechee, all aunswered as Freemen, beinge ympeached by the Commons.9 And wheras the Commons dyd that yeare allso accuse Adam de Burye, whoe was absente: The Lords sente for him to come, but he contemned their authoritye and came not. Then the Lords (as yt seemes [fol. 58v] by the Recorde) sente to apprehende him: and he coulde not be founde, wherefore they awarded that all his goods shoulde be putt in arrest, etc. Vide ibidem, n.47- where this is briefly entred thus, the sayd Adam was sent unto for to come to aumwere in Parlement', £f he came notneither coulde be founde; wherefore yt was awarded, etc.10 Which is sufficient to prove that a Commoner is not to be brought a prisoner to his aunswere unto missdemeanours, yf he woulde appeare. Vide anno • 5 ro .R.2. the Maior and the Bayllives (by name) and the Townesmen of Cambridge were complayned of in parlement for many outrages against the Schollers there. And the Lords sente one writt to the Maior & Baillives that then were, & to the Commonaltie, to appeare & aunswere. And another writt to the Maior & Ballives that dyd the outrage. And they (the Maior & Bayllives) 1

2 7 R.2: n. 14 (Rot. Par!., ill, 169). IO R.2: n. 12 (ibid., 219). 3 50 £.3: nos. 20-27, 34 (Rot. Par!., n, 324-26, 328-29). 4 7 R.2: nos. 15, 19-22 (Rot. Par!., Ill, 152, 154-56). 5 10 R.2: nos. 5 and 12 (ibid., 216, 219). 6 7 8 LJ, n, 314. LJ, in, 388-90. Ibid., 655-56. 9 50 £.3: nos. 18, 31, 33 (Rot. Par!., II, 324, 327, 328). 10 50 £.3, n. 47: ibid., 330.

The Parties Aumwere

59

appeared in person; and the Commonaltie by their Attourney. This was the auntient use then./- 1 Yett even in those dayes, vizt. anno .i5 ro .R.2. n.i8. The Prior of Holland complayned of a greate Ryott committed by Henry Tibbe and dyvers others, in the Parsonage house of W. wheruppon a Sergeaunt at Armes, (by virtue of a Commission to him made) The aunbrought up the sayd Tibbe and one more [fol. 59] only, (whoe were swere. the Principall doers therin) before the Lords in Parlement; whoe uppon examination, confessed the wholl matter, and were committed./.2 Here I suppose the Sergeant at Armes was sent, for that happely they woulde have obeyed noe writt, & yett he was sent but fore twoe of the principall Offendors. [L] At this daye, yf the Commons accuse a Commoner of misdemeanours, he aunsweres in such state of libertie or restreinte as he is in when the Commons complayne of him. prout. anno .18. Ja: Sir Frauncis Michell and Sir John Bennett, were bothe committed by the Commons before their complaint to the Lords, and soe they aunswered as prisoners, which maye (in a sorte) be called Judicium Panum morum) And anno .21. Jacobi, The Erie of Middlesex beinge Lord Treasurer, and accused by the Commons of misdemeanours only, absented himselfe from the House. His charge was sente him in

wrightinge, and he aunswered in wrightinge. At the daye prefixed for his tryall, he was somoned by the gentleman usher to appeare at the barre, whither he came (without his staffe) and kneeled untill the Lord Keeper wylled him to stande up. There he protested that he ought not to [fol. 59v] aunswere in that place, and desyred that others myght not be prejudiced thereby. (And I hope they wyll not). 4 The Erie dyd himselfe the firste wronge in his absence from

The swere

the House, where he myght have stayed untill Judgement, unlesse when his owne cause came in agitacion. s [L]=

[fol. 60] Touchinge the seconde, for Councell. all cases of Felonye and Treason, INdenyed to the par tie accused, prout. 1

Councell was auncyently

5 R.2: nos. 45-48 (Rot. Par!., Ill, 106-7). 15 R.2: n. 16, not 18 (ibid., 286-87). It was the parsonage house of Whitewyk. 3 LJ, m, 63, 65, 87-88. 4 Ibid., 307-10, 319-20, 344, 377. For Middlesex's absence from the upper House, see the attendance lists in the Lords Journal, April I 3 ff. -s Three-quarters of the folio has been left blank.

2

[R] The Aunswere.without Councell.

60

Judicature in Parlement Anno .4?0.R.2. n.2i. Sir Ralphe Ferrers Knight was brought into the parlement under the garde of the Marshall of Englande, and arraigned on the Kings behalfe (for suspicion of Treason), whoe prayed unto the Kinge and the Lords to have Counsell in the Case. Unto whom yt was sayd that in all things, wherin Counsell ought to be graunted by the Lawe of the Lande, the Kinge our lord woulde allowe him Counsell. And yt was further sayd unto the sayd Monsieur Raufe. That forasmuch as this matter soundes soe much in Treason, that by the Lawe he ought not to have Counsell in this case of noe earthly Creature, but of God and himselfe; he was commaunded to aunswere himself at his perill. This last aunswere was gyven upon deliberacion.1

[L]

Anno 5?0.R.2. n.44. Sir Richarde Cogan Knight beinge accused by Richarde Clyveden esquire for extortinge 200. li. from the Priour of St. John of Jerusalem in a ryotous manner, requyred Councell, which was denyed for that the cause touched Treason.2

[L] The aunswere. without Counse .

[fol. 6ov] Anno .28.H.6. The duke of Suffolk beinge accused of Treason by the Commons, demaunded copyes of the Articles, but 3 noe Qounceu ^nd he aunswered without Councell. Anno i" Caroli. in the parlement begunn 6 Febr. The Kings Attourney exhibited Articles of Treason and missdemeanours against John Erie of Bristoll. And he had Councell allowed him which was uppon this Occasion. Anno .21. Jacobi. the Erie of Middlesex was denyed to aunswere by Councell, touchinge Missdemeanours only (that president of .io.R.2. touchinge Michael de La Pole beinge mistaken, as I conceave.)4 Afterwards the Lords, consideringe the inconveniency that myght happen hereby did Order that Councell shoulde be allowed unto delinquents in all causes generally. Att the voatinge of which Order, the Kinge (then Prynce) was present.5 And I dyd expecte some reply therunto on the Kings behalfe and observed especially whether the Prynce woulde6 shewe any disslyke of yt either in worde, or countenaunce, & he shewed none: which made me then verily believe that he had ben acquainted therewith aforehande, but He was not, as yt shall appeare. 1

4 R.2, n. 21: Rot. Par!., ill, 92. 5 R.2, n. 44: ibid., 106. It was Sir William Cogan who was accused. 3 28 H.6: nos. 48, 49 (Rot. Par!., v, 182). 4 LJ, ill, 323; 10 R.2: n. 7 (Rot. Parl., ill, 216). 5 LJ, ill, 582-85, 587, 588. Standing Orders of the House of Lords, nos. 38, 39 (House of Lords Manuscripts 1712-1714, 7). LJ, ill, 418. For the presence of the 6 prince, see ibid., 413. shoulde, deleted. 2

61

The Parties Aunswere [fol. 61] In this parlement uppon readinge of the Articles of Treason and missdemeanours against the said Erie. 6 Maii. and uppon the Erles aunswere unto them on the sodeine in the generall, the Lords dyd Order, that he shoulde have Councell allowed him to pleade his cause. But on Monday followinge, beinge the 8. of Maye, the King sente a Message to them, that the not usinge of Councell for a defendant in cases of Treason & felony, is an auncient fundament all Lawe of this Kingedome. And desyred their Lordships to proceede with that caution that that auncient fundamentall Lawe maye receave noe preiudice nor blemishe. On the .15th of the said May, the Lords aunswered this Message, that by an Order dated .24. Maii 1624 anno .21. Ja. Councell was to be allowed generally His Majestic beinge then present, and they had allowed the Erie of Bristoll Councell before the Message came. On the .17th. of Maye, His Majestic is contented that the Erie of Bristoll have Counsell, although his Majestic knowes that by the lawe he is to have none. But takes excepcion to the Order of the 24th of May [fol. 6iv] 1624. that yt was occassioned by the Erie of Middlesex, whose cause was only cryminall, which He never, till nowe, conceaved to extende to cases capitall. And the Judges were never advysed with therin, nor the Kings learned Councell herde for His Majestic. And therefore His Majestic is not satisfyed about that generall Order: but wyll advyse. etc. The Lords theruppon agayne allowed him Councell to pleade etc. This parlement of 6. Febr. anno . i°. Caroli Regis was dissolved before this cause of the Erie of Bristoll was herde & determyned. And then the said Erie was sued in the Starrechamber for the selfe same matters conteyned in the Articles against him in the parlement, and all then but missdemeanours.1 And (yf yt be lawfull for me to speake freely) I believe the Lords thought they were but missdemeanours when they allowed him Councell in Parlement. [fol. 62] But in cases of Misdemeanour only, the partie accused was never denyed Councell. Anno .io.R.2. The Commons accused Michael de La Pole Lord Chauncellor, of many misdemeanours, in open Parlement, before the Kinge in open Parlement. Afterwards in the Kings absence, the Chauncellor firste sayd to the Lords, that he was Chauncellour of Englande, and for the tyme represented the person of the Kinge in His absence. And demaunded, whether he ought to aunswere without the Presence of the Kinge, sithe he was impeached of actes in the tyme whiles t he was Chauncellour. (This receaved noe aunswere.) Secondly he sayd that he had appointed (by the advise of his counsel^ that Aionsieur Richard Le LJ, m, 582-85, 587-88, 627, 629-30.

• wth, partially deleted.

Aunswere. without Counsell.

[L] The aunswere. without Councell.

[L] [R] The aunswere. by2 Councell.


62

[L] The aunswere. by Councell.

Scroop, his brother in Lawe, shoulde have the wordes of his Aunswere unto the sayd ympeachements. Wherunto the Lords sayd, that yt was honest for him to aunswere by his owne mouthe. And theruppon he made Protestacion, that he myght adde to, and take from his aunswere, that which shoulde be honourable and profitable for him. The which thinge unto him was graunted. And then the sayd Chauncellour declared [fol. 62v] aswell by himself, as by the mouthe of the sayd Lord Scroop, That etc.1 I noate here that Councell was not denyed him, yt was only tollde him, that yt was honest for him to aunswere by his owne Mouth. Anno 7.R.2. The Bishop of Norwich beinge accused of Missdemeanours in generall. n.15. And charged therewith particulerly by the Chauncellor. n.i8. The Bishop sayd, That albeyt in this case he ought to have Councell, yett, makinge Protestacion that he myght att all tymes amende his aunswere, he woulde aunswere in Person, and soe he dyd. n.19. etc.2 Anno \° Caroli. The Duke of Buckingham beinge accused by the Commons of missdemeanours only, had copyes of the ympeachements, and aunswered by Councell on this manner, vizt. Die [blank]. The Duke beinge in his place, & standinge, his Councell came to the Barre. And one of them reade the Dukes aunswere, as yt was penned in wrightinge./.3

[R] The aunswere.

[L] vide the Recorde.

[fol. 63] Yett sometymes in cases of missdemeanours when the partie accused hathe demaunded copyes of the Articles, & Councell, and tyme to aunswere; the Parlement hathe compelled them to make a present aunswere without Councell, but this is rare. I have yett seen but one President therof which is this. Anno ! 53)5 R.2, nos. 45, 49: ibid., 106-7. Elsyng had originally written 'leave 2 sydes', then he crossed off 'sydes' and wrote 'sheetes'. The rest of the folio is blank.

yo

[L]

[foi. 71] [The proofe.]

[R] The proofe.

by wyttnesses.

f~T^He next considerable parte in Judicature after the Aunswere & -L replicacion, is the Proofe by Examinacion of wyttnesses or otherwyse. Firste of the wyttnesses. The practisse at this daye is, to sweare the wyttnesse in open House; and them to examine there, or at a Committee; either uppon Interrogatories agreed on in the House, or uppon such as the Committee in their discrecion shall demaunde. Howe yt was in auncient tymes, shall appeare by the presidents (such as they are, they beinge very sparinge to recorde theis ceremonies) which I wyll briefly recyte, & then adde those of latter tymes. Wyttnesses produced by the Commons.

\Nno 50.E.3. The Lord Latymer havinge aunswered to one of the JL\.Commons 'complaints touchinge a Loane of 20,000 marcs to the Kinge, for 30,000 marcs to be repayed, wherof he sayd he was [L] The proofe. Innocent, yt followes ymediatly thus. [fol. 71v] And theruppon yt by wyttnesses. was testifyed in Parlement by Monsieur Richard Le Scrop Chevalier late Treasurer of our Lord the Kinge, and by Wylliam Wallworth of London, that when the said Loane was made, the said Wylliam offred in name of the Staplers to lende the same, & to be repay de without usury out of the Customs of woolls to Callyce. etc. Wherunto the Lord Latymer aunswered, & sayd that he never herde of that proffre. And the others swoare that the sayd Wylliam Wallworth dyd make that proffre unto him.2 Anno 50 E.3. The Commons produced .4. wyttnesses to prove their complainte against Ellys. Les queux examinez en Parlement sayde. etc. And there I observe, that .2. of those wyttnesses had exhibited a particuler complainte against Ellys, concerninge a particuler wronge unto themselves, & for wrongs done unto merchaunts (wherof the Commons complayned) And Ellys tooke noe excepcions to their testimony against him. And afterwardes Ellys beinge putt to his aunswere uppon their particuler complainte, for wronge ym1 2

wyttnesses examined, deleted here and elsewhere in this section. 50 E.j: nos. 24, 26, 27 (Rot. Parl., II, 325-26).

The Proofs 71 prisonment etc. Ellys sayed that they bywayed him as he was comminge to London, etc. & soe he caused them to be committed. etc. And the sayd [fol. 72] complainants affirmed the contrary uppon oathe. And yt was testified expressly by dyvers sufficient men that, etc. agreemge with their oathe.1 Anno eodem. John Pecchee beinge accused for extorsion, denyed the extorsion, and affirmed he receaved yt by the assent of the Maior & Aldermen of London. And theruppon the Maior, the Recorder and the greater parte of the Aldermen beinge examined strictly in Parlement, affirmed there, That etc. the contrary. And judgement was gyven etc.2 Anno eodem. The Commons accuse John Lord Nevill for buyinge the kings debtes, of Reynald Love. The which the Lord Nevill denyed. And the Commons desyred that the sayd Reynald myght be examined. And the sayd Reynald beinge charged uppon his allegeaunce to tell openly before them the full truthe, sayd, etc. cleeringe the Lord Nevill. But afterwardes he confeste yt against himselfe but I doe not fynde that he was sworne, beinge a partie. Noate he was examined in presence of .2. of the House of Commons.3 Many complaints were made in the generall against Richard Lyons4 and Wylliam Ellys, D in that parlement. And Commissions sent to inquyre of their behaviour in their Offices, ibidem 50.E.3. n.34. in fine.6 [Inserted page] Anno \° R.2. John L. Gomeniz aunswered, That he delyvered the Towne of Arde by the Common Counsell and assent of all the Knights, Esquires and others in the sayd Towne wheruppon, one Geffrey Dargentyne knight sayd in full parlement unto the sayd John, that he was present and assented not. 7 Noe doubte but he spake uppon oathe, though not soe recorded. Yett yt may be he was one of the House of Commons, and spake without oathe./. In the accusacion of the Lord Latymer, the Commons produced a lettre sealed by the Lords of Bretaigne to prove the Lord Latymers extorsions there, which lettre is called Ragman, and is entred in their ympeachement, anno 50.PL.3. n.21. 8

1

50 £.3: n. 31 (ibid., 327-28). - 50 £.3: n. 33 (ibid., 328). 4 50 £.3, n. 34: ibid., 329. 50 £.3: n. 17-19 (ibid., 323-24). •s 50 £.3: n. 31 (ibid., 327). 6 For Commissions concerning Lyons and Ellis, see 50 £.3: nos. 19, 32, not 34 (ibid., 324, 328). There follows an inserted page which is not numbered. 7 x I R.2: n. 40 (Rot. Pari, in, i i). 50 £.3, n. 21: Rot. Pari, 11, 324. 3

71

[R] The Proofe. b y wyttnesses.

72

Judicature in Parlement To prove the Treasons of the Erie of Northumberlande and the Lord Bardolfe. anno 7.H.4. dyvers lettres under the Erles hande & Scale are produced, & entred at large.1 [fol. 72v] [The proofe, by Jury.]

[L] [L] The proofe.

bv fury

[R] The proofe. by JUIT-

\Nno \° R.2. Allice Ferrers, pleades not guiltye. & that she woulde JL\.prove etc. by the Testimonyes of dyvers of the late Kings Household, whome she named, (the offence beinge for procuringe .E.3. pryvatly to revoake an Ordinaunce of His counsell.) The Lords gave her daye over. And in the meane tyme, named a Committee to examyne wyttnesses. The Committee were theis. The duke of Lancastre. The Erie of Cambridge. The Erie of Marche. The Erie of Arundell, and The Erie of Warwicke. And dyvers wyttnesses (whoe are named) were sworne uppon the holy Evangelists and dilligently examined uppon the Articles, obiected against her. The Lord Beauchampe was sworne and examined. And, the Duke of Lancastre (beinge one of the Committee) was dilligently examined before the rest of the said Committee bu not sworne. For in those dayes Barons were sworne ad testificandum Erles and Dukes were not. Then a Jury of the Householde were ympanelled, for her tryall before the said Committee. The Order made by the Lords for this examinacion & tryall, vizt. Par 1Jas sent des Prelatts, et des Seigneurs du dit parlement', ordeine fuist et assentuz que cestes articles serroient [fol. 73] triez per tesmoignes ou par lenquest de ceux qui fuerent del Hostel du dit Aiel, par queux la veritie purroit meultz estre conuz et enquis. By virtue of this Order the said Committee dyd take the examinacions of the wyttnesses: and after their examinacions yt followeth thus. Et nyent mainns feurent fait vemr devaunt le dit Due et les ditz Counts^ Monsieur R. B. etc. (and soe names .8. knyghts and .9. esquires) queux feurent iurrez a dire La veritie sy La dit Allice feust coup able de les Articles avant ditz ou non.2 Noate, this is the only Jurye I fynde recorded for tryall of Missdemeanours in parlement. I make no doubte but yf the delinquent dothe putt himselfe uppon the tryall of his countrey, but that a Jurye ought to be ympannelled therefore. But yf the Commons ympeache any man, they are in loco propria^ and then noe Jury ought to be only wyttnesses are to be examined in their presence or they to have copyes therof, and the Judgement not to be gyven untill the 1

7 H.4: nos. 8, 9 (Rot. Parl., in, 605).

2

I R.2: n. 42 (ibid., 13-14).

The Proofs Commons demaunde yt and such their demaunde is in lieu of a verdicte allso. For proofe that the wyttnesses ought to be examined in their presence, vide .50.E.3. the ympeachement [fol. 73v] of the Lord Nevill where Richard Love was examined in presence of twoe knights of the House of Commons, whoe contraryed his testyrnony, n.44./. 1 For prooffe that a delinquent may putt himselfe super propriam, vide 4.E.3. for the Lord Berkley, whoe wayved his Parage, & was tryed by a Jury of Gloucester and Worcester shires. (For that he was arraigned for the murdre of .E.2. at Berckle in comitato Gloucestriae, & he aunswered that he was sicke at that tyme at Bradley in comitato Wigorn.} But he was arraigned uppon an Informacion ex parte domini Regis & not uppon the ympeachement of the Commons, for then, they had ben propria ma." And as the partie may putt himselfe super propriam soe he may demaunde the Battle, but not when he is accused ex parte Regis, prout dux Clarencie anno .18.E.4,3 nor when he is accused by the Commons prout Brembre, anno .11.R.2. in the Appeales.4 Anno 21.R.2. when the Erie of Arundell was brought to aunswere the Appeales, the Lords Appellants threwe downe their gloves by way of challenge, the Erie aunswered, Si essem, liber non refugerem. Noate the Commons had accused him allsoe. Vide jerale Parlementum liber Mailrosse./.^ [fol. 74] Anno \° R.2. John Lord Gomeniz, aunswered that he delyvered the Towne and Castle of Arde unto the Frenche, by the common councell and assent of all the Knights, Esquires and others there then [?] at the sayd Towne etc. Wheruppon one Geffrey Dargenteyne Knight sayd in full Parlement unto the sayd John. That he the sayd Geffrey was present, and assented not, but offred to lyve and dye uppon defence of the Towne./. Noe doubte but this Geffrey spake uppon Oathe, though yt be not soe recorded.7

1

50 E.3, n. 3: Rot. Par!., n, 329. The correct name of the witness is Reynald Love

- 2 4 H«3: n. 16 (ibid., 57). 4 I 8 £.4; see below, pp. 74-75. I I R.2: Rot. Par/., in, 238. ^ Annales Ricardi Secundi, 2 1 4 — 1 5 ; see above, p. 52, n. 2. 21 R.2: nos. I 7 (Rot. Par!., m, 374—77). The folio that follows is misnumbered as 73 and is blank. 6 wytnesses, deleted. 1

7

These further notes on the proof by witnesses, here indented, have been deleted.

73

[L] The proofe. by Jury.

[L]

[L] By battle.

[L] sit an tea

[R] The proofe.

[L] leave 1. side.

74


[L]

N — [fol. 74] The Kmges Testimonye

[ R ] B y t h e K y n g sr - 1 1 1 1 -

testimonye

[L]=

\Nno 50 E.3. Richarde Lyons pleadmge a warrant from the Kmge, JL\. which he coulde not shewe: yt followeth thus. And theruppon yt was testifyed openly in parlement that our Lord the Kinge had expressly sayde the daye before to some Lords then present in parlement, that he Knewe not howe nor in what manner the sayd Richard was come into such Office about Him, and, which is more, that He dyd not Knowe him to be His Officer.2

[L] The proofe Dominus Rex.

[fol. 74v] Anno 21 R.2. The Lord Cobham beinge brought to his aunswere, for procuringe a Commission to himselfe and others in derogacion of the Kings Prerogative (anno KT" R.2.) and for excercisinge the sayd Commission, he denyed the procuringe therof. 'And that he woulde not have used the Said Commission, without the kings commaundement. And, that he tolde the king soe much, and the Kinge commaunded him to intermeddle therin.' Wherunto our Lord the Kinge aunswered & sayd. That He was in such governaunce at that tyme, that He coulde not otherwyse saye bycause of them whoe were then about Him: and, that the Lord Cobham Knewe well that the said Commission was made against His wyll. The which thinge the sayd John de Cobham dyd not gaynesay, (at his tryall) and soe Judgement paste on him for the same, & he Judged a Traytour. Et quid non vult Tirannus?

[R] The proofe. Dominus Rex.

[fol. 75] Anno 18.E.4. George Duke of Clarence was arraigned in full Parlement. There is noe mencion therof in the Roll but in a manuscript story of that tyme written by a Priour of Croylande (whoe was a Pryvye Counsellor to .E.4.) yt is sayd. Tarn tristis visa est disceptatio ea habit a inter duos tantae humamtatis Germanos. Nam nemo arguit contra Ducem, nisi Rex. Nemo respondit Regi, nisi Dux. Introducti autem erant nonnulli, de quibus a multis valde dubitatur, an Accusatorum^ an Testium Officiis sint functi; utraque enim Officia in eadem causa eisdem personis non congruunt: Diluit enim obiecta Dux ille per infitiationem; offerens si exauderi posset manuah defensione tueri causam suam. Quid multis immoror? Parliament ales reput antes audit as informaciones sufficere, formarunt in eum Sententiam damnationis^ quae ab ore Henrici Duds Ruckinghamiae, pro tempore noviter creati Angliae Senescali, prolata est. Dilata est postea diu executio, quoadusque Prolocutor Communitatis in Superiorem Camerum cum Socns suis adveniens^ novam eius conficiendae rei requisitionem fecerat. Et consequenter [fol. 75v] infra paucos dies factum est id, qualecunque erat genus supplicii Secrete infra Turrim Lon-

[L] The proofe. Dominus Rex.

' in Misdemeanours, deleted.

- 50 E.j: n. 18 (Rot. ParL, ll, 324).

3

wyttnesses, deleted here and elsewhere in this section.

4

21 R.2: n. 10 (Rot. Pari, ill, 381-82).

The Proofe

75

doniarum. Utinam finis mali. Anno Domini 1478 regni vero Regis Ed. ISmo.j. per Anonymous in bib. Cottonae.1

Here lett us examyne, for what illegall proceedinge the Commons requyred this cause to be herde agayne. The author sayes, none argued against the Duke but the Kinge. This the Commons helde to be against Lawe, That the Kinge Himselfe shoulde enforce either Article or Testimonye against a delinquent in a Capitall cause: for yt is inconvenient, that He, whoe is to have the forfeiture of lyfe, Landes and goods shoulde be accuser, wyttness or Judge. The Commons were present at this Tryall, and consideringe of the Inconvenience herof, they retourned & made this request, ut supram. Anno 1° Caroli Regis in the parlement holden Westminster 6 Februarii. John Erie of Bristoll was accused by the kings Attourney of Treason beyonde the Seas. 8"" Mail 1626, the said Erie petitioneth to the Lords That seinge severall points of the [fol. 76] charge are grounded only uppon pryvatte conferences with His Majestic, Soe that His Majestie by Testimonye becometh a wyttness: and in case the sayd Erie shoulde be convicte, his confiscacion commeth to the Crowne, etc. he desyred their Lordships to move His Majestie for the declyninge of His Accusacion & Testimony, etc. 9"° Man, these Questions were proposed to the Judges, vizt. 1. Whether in case of Treason or felonye the Kings testimony is to be admitted or not. 2. Whether wordes spoken to the Prynce whoe afterwardes is Kinge, makes any alteracion in the case. And the Judges were appoynted to delyver their opynions therin on the 13th of the sayd May.2 In3 the meane tyme, the Judges beinge all mett in the Exchequer chamber, I was sente for thither; where Mr. Attourney demaunded of me, yf I dyd not remember any president of Parlement wherin the kmge was a wytnes in cases capitall. I aunswered noe. For then (in truthe) I had not scene that against the Lord Cobham anno .21.R.2, 4 but sayd I, I remember that at the tryall of the duke of Clarence [fol. 76v] anno 18.E.4. the Commons protested against yt, for that (as I conceaved) the kmge gave testimony against him. And I caused that booke to be brought out of Sir Roberte Cottons library for proofe therof at the Commaunde of the Judges.3 1

See below, note 5.

3

This passage here indented has been crossed through in the manuscript. 21 R.2: n. 10 (Rot. Pad., in, 381-82).

4 5

- LJ, m, 5X2-85, 588, 590-91.

The 'book' was Ingulph's Chronicle and its continuations (B.L., Ms. Cotton Otho B. XIII). I am grateful to Colin Tite for this identification. This manu-

[L]

[R] The proofe. Domwus Rex

\L\ omvtt this.

[L] The proofe. Dommus Rex

76

Judicature in Parlement On Satterdaye followinge, the 13th of Maye, the Judges beinge requyred to delyver their Opynions herin, the Lord Chief Justice sayed, that they appoynted to meet to consider therof, and Mr. Attourney desyred to knowe the tyme of their meetinge. And before that tyme, he brought them a Message from the Kinge. That his Majestie was soe sensible of His Honour, that He woulde not surfer the Rights of His Crowne which may iustly be preserved, to be diminished in His tyme. That they myght delyver their opynions in any particuler question concerninge the Erie of Bristoll: but not in generall questions, wherof His Majestie coulde not discerne the consequences which myght happen to the preiudice of His Crowne: every particuler case varyinge accordinge to circumstances. etc.1

[R] The proofe. Dominus Rex.

[fol. 77] Anno .4.E.3. after the Articles were reade against Roger Mortymer yt followeth thus. Wherefore the sayd our Lord the Kinge dothe charge you, Erles & Barons, Peeres of His Realme that forasmuch as thees thinges touche principally Him & you, and all the People of His Realme, that you doe unto the sayd Roger right & Lawfull Judgement, such as apperteynes unto such a one to have whoe of all the faultes abovesayd is verily guyltye as He believeth, and for that the sayd thinges are notorious and Knowen to be trewe unto you & to all the people of the Realme. This was all the proofe produced against Mortymer. The Lords heruppon Judged him. 2 But afterwards anno 28 E.3. n.10. They reversed yt for erroneous. Soe that all though the Kinges testimony confirmed by Common Fame was anno 4to receaved against Mortymer, yett yt was afterwards adiudged to be nul accusement anno 28. of the same kinge.3

[R] The proofe a wyttnesse examined concerning himself.

[fol. 78]4 Anno 18 Jacobi. In that parlement dyvers wyttnesses were examined in open House, in the causes of Mompesson & the Lord Chauncellor, uppon Interrogatories agreed on before hande. And dyvers at a Committee. And yt was resolved that none were to be examined uppon any thinge that myght accuse themselves.3 Wheruppon [blank] die [blank], the Erie of Southampton one of the script was severely burned in the fire of 173 I. We now have available a text based on another manuscript of the Chronicle, formerly owned by Sir John Marsham. This text was included by William Fulman in Volume I of Rerum Anglicarum Scriptorum Veterum, printed in 1684. The modern edition (Henry T. Riley, ed., Ingulph's Chronicle and Its Continuations, 1908) is based upon it. 1 LJ, in, 594. 2 4 £.3: n.i (Rot. Par!., n, 53). 3 28 £.3, n. 10, is the original judgment. For the reversal, see 28 £.3, nos. 11 and 12 (Rot. Parl., u, 256). 4 Fol. 77, lower half blank; fol. 77v, blank. 5 LJ, in, 48-49, 58, 60, 67.

The Proofe

77

said Committee, signifyed that a Scruple arose whether Sir Ralphe Hansby shoulde be examined what brybe he gave unto the Lord Chauncellor. And uppon the voate agreed that he should, dissentiente Comite Dorsett.1 Anno eodem. [blank] die. [blank]. The Lords founde that the testimonye of dyvers of the House of Commons was necessarye touchinge their complaint against Mompesson. And therefore sent a Message unto them to this effecte.2

[R] One of the House of Commons.

[fol. 79]3 The House of Commons, before theyr complaint exhibited against the Lord Chauncellor, & Dr. Fielde for a Brybe concerninge Egertons cause, anno .18. Ja. examined (but not uppon Oathe) one [blank] Damporte but not uppon Oathe. The Lords when they examyned Damporte, founde that the cause was not soe fowle, as he had related yt unto the Commons: & therefore sente his examinacion taken uppon oathe unto them, whoe convented Damporte before them & punished him for his false relacion./.4

[R] The proofe. By one produced by the Commons.

1 3 4

2 Ibid., 67. Lords Debates 1621, 38-39. I,J, in, 48-49. Fol. y8v is blank. LJ, in, 57, 60, 125, 128, 144; CJ, i, 639. Fol. 79v is blank. Fol. 81 follows.

78

[R] The Judgement. (unto whom yt belonges).


[foi. 8i,« C ] The Judgement. f Unto whom the Judgement belonges, and then of the Kings I. 4 £a.3: n. 4 (ibid.}. I0 4 E-3= n. 5 (ibid., 54). " 2 H.4: n. 30 (Rot. Parl., in, 459). The numeral denoting the regnal year has been much written over. 2 seems the best reading, but 7 is possible.

The Judgement

y.H.4. against the Erie of Northumberlande.' And the Judgements amis .nmo et .2imo R.2. uppon those severall appeales, are all recorded to be by the kings assente.2 And one of the Articles obiected against the duke of Gloucester, the erles of Arundell and Warwicke anno 21.R.2. is, For that they gave Judgement of deathe against Symon de Burle without the kings assent and against his will; which I wyll here recyte. vizt. Item the aforesayd Duke, Erles of Arundell and of Warwick and Thomas Mortymer contynuing their traiterouse purposse and force of men, tooke and ymprisonned dyvers men, your Lieges, and amongest others Symon de Burle knight, and him carryed unto your parlement at Westminster helde the morrowe after the purificacion of our Lady in the yeare of your [fol. 85] reigne the xi lh , and there they caused to be surmised against him dyvers points of Cryme and treason. And theruppon yt was demaunded of everye Lorde whoe was presente in the said parlement his advyse of the said Symon touchinge thee said Cryme. And afterwards the said Duke and Erles of Arrundell and of Warwick woulde knowe your advise (thryce redoubted Lorde) and you aunswered plainly that the said Symon was not guiltye of any of the said points against him surmised. And then afterwards the said Duke and Erles of Arrundell and of Warwicke caused you to come into a secrete place in Westminster, and shewed you the points of Cryme aforesaid. Unto which you then aunswered, that the said Symon was not guiltye of any of the said poincts. And then they tooke uppon them traiterously to have constreyned you to have assented to the Judgement which they had purpossed against the said Symon uppon the poincts of Cryme aforesaid. And you (thryce redoubted Lord) woulde not consent unto any Judgement to be gyven [fol. 8sv] against the said Symon in noe manner. And yett notwithstandinge the afore sayd Duke and Erles tooke uppon them Royall power in preiudice of You and in derogacion of your Crowne, and without your assent, and against your wyll, and in your absence, and in the absence of many other Peeres of parlement and without their assent, and against their wyll, awarded that the said Symon shoulde be drawen, hanged and quartered: and theruppon they caused him to be beheaded traiterously against your Peace, Crowne, Maiestie and dignitye./. This I have recyted at large, unto which the said Duke of Gloucester made no aunswere, beinge deadc before: the said Erie of Arundell pleaded the kings pardon which was not allowed him, and the said Erie of Warwicke confessed all the Articles in the said 1 2

7 H-4: n. 15 (ibid., 607). I I R.2: n. 6 (ibid., 237-38); 21 R.2: nos. 7-10 (ibid., 377-78, 380-82).

8i

H The Kings assent.

|L| The Kings assent

82

[R] the Kings assent.

[L] the kings assent.

[R] The Kings assent.


Appele, and putt himselfe into the Kings Grace. And the said Thomas Mortymer coulde not be founde. This parlement begann at Westminster die lunae proximo post festum exaltacionis Sancta Crucis and was adiourned to Shrewsbury in [fol. 861 quindena Hillarii then next followinge. And on Tuesdaye the xxviii of Januarye the Commons beinge in the said parlement at Shrewsburye, shewed unto the Kinge ho we that they in the said parlement at Westminster had accused and ympeached John de Cobham Chevalier of this (amongest other thinges) That the said John de Cobham in the yeare of the kings reigne the xith, (with others convicted in this presente parlement) accroachinge unto him Royall power sittinge in Judgement awarded that the lieges of the kinge Symon de Burle and James Berners knights shoulde be drawen, hanged and beheaded, without assent of the Kinge and against His wyll, and in His absence, and in the absence of many other Peeres of parlement whoe with helde themselves and woulde not sitt in such Judgement, and againste their wyll, traiterously and against the Peace of the Kinge, His Crowne, Maiestie and Dignitye. And they prayed unto our Lord the Kinge to cause the said John [fol. 86v] de Cobham to come into this presente parlement to aunswere unto the things aforesaid, and to ordeine such Judgement against the said John de Cobham as the case demaundes. The sayd John de Cobham was brought, etc. And touchinge the said Judgement awarded against the said Symon and James the said John de Cobham said, That yt was tolde him by them whoe were then sente, that yt was the kings wyll to make such Judgement and awarde againste the said Symon and James. And the Commons prayed the kinge that yt woulde please Him to gyve Judgement against the said John de Cobham Convicted of the Judgement and awarde which he had soe gyven against the said Symon and James notwithstandinge his aunswere. Wheruppon etc. Judgement was gyven against him, and he adiudged a Traitour. I have in a manner translated this ad verbum. [fol. 87] Here is obiected that the Judgement against Symon de Burle was gyven by the Lords 1. without the Kings assent. 2. against his wyll. 3. in the kings absence. 4. in the absence of many of the Peeres of parlement & against their wylls. i. Touchinge the Firste, vizt. the kinges not assentinge. It may be obiected, that the Lords gave Judgement against Weston etc. anno .i".R.2. without the kings assent,1 But yett this was not against the 1

i R.2: n. 40 (ibid., 12).

The Judgement Kings wyll: for, they respited the execucion untill the kinge myght be enfourmed therof, and the reason there gyven for the said respite is, for that the Kinge is not as yett enfourmed of the manner of this Judgement. But whether the Lords proceeded to that Judgement against Weston before they enfourmed the kinge therof, bycause the kinges assent is not necessarye; or, for that, yt beinge the last daye of the parlement, they had noe leysure to enfourme His Majestic therof; lett the Reader Judge. Yett yt seemes to me that the kinges assent is necessarily requyred in Capitall Judgements for theis .2. reasons, vizt. [fol. 8yv] Firste. For that all the presidents mencion the kings Assent in Capitall Judgements; Excepte that one against Matravers. .^".E.j. n.3. which might be the omyssion of the Clerke whoe drewe up the Roll. For yt is directly sayd afterwards in the sayd Roll, n.6. 1 That the Peeres gave those judgefments in the]2 presence of our Lord the Kinge, and by His assente. And excepte this of . i°.R.2. against Weston on the last daye of the Parlement; and yt was .3. in the afternoone of that daye before the Lords had determined what to doe in that buissenes. Soe that (yt may be) the Lords were prevented of tyme herin to salve which they respyted the execucion, for that the kinge was not enfourmed of the manner therof.3 And secondly, for that the Lords Appellants anno ii.R.2. (whoe had then greate forces about them) were soe earnest with the kinge for His assent to the Judgement against Burle, that the Duke of Gloucester tollde Him (as appeares by his owne conffession, anno .2I.R.2.) that yf He woulde be kinge, He shoulde not entreate for Symon de Burle to save him from deathe. And in the [fol. 88] ende, when His Majestic would not assente unto their Judgement, yett they wrought soe that Messengers were sente unto Him, & brought worde of His assente, and then, and not before, they gave Judgement on the said Symon: and the kings assent is mencioned in their said Judgement.4 All which the said Lords woulde not have done, had not the kings assent ben necessarye. And afterwards in the Parlement of .21.R.2. the Lord Cobham, beinge accused for gyvinge Judgement on the said Symon without the kings assent, aunswered that the Messengers brought worde that His Majestic had assented, and yett, bycause he dyd not gaynesaye that the kynge dyd denye His assente, the Commons ymmediately demaunded Judgement.- s 1 2 3

4 E-3, nos. 3, 6: (Rot. Par/., II, 53-54). ments in the, seems to have been crossed through or blotted. l R.2: n. 40 (Rot. Par!., in, 12).

4

I I R.2: n. 6 (ibid., 243); 21 R.2: n. 8 (ibid., 380). For Gloucester's confession, see 21 R.2, n.y (ibid., 378-79 and note).

s

21 R.2: n. 10 (ibid., 381-82).

83

N The Kings assent

N with assent of the Kinge.


84

[L] The Kings assent.

All which shewes that the kings assent is necessary in Judgements uppon Capitall offences. 2. Touchinge the second Judgements in this case against the Kings wyll are all one with Judgements without the Kings assent. 3. Touching the third vizt. In the absence of the kinge. The Judgements in this kynde are good notwithstandinge, soe the kinge dothe assent, as by that against Symon de Burle. anno .n.R.2. 1 4-Touchinge the absence of many of the Peeres & against their wylles. This cannot invallide the Judgement, soe as the greater number of [fol. 88v] the Lords whoe are present (accomptinge the Proxies of the absent Lords) doe agree. For yt is not materiall whether some Lords doe absent themselves, or disassent. The chiefest matter is the assent of the Lords who are present either in Person or by Proxie. The others are to be amerced for their absence without iust cause shewen, or a Proxie sente./. Vide anno I5.E.3. 4. Touchinge the kings •^ *** cap. I o o assent which statute speakinge of the kings greate Officers complained of, and atteinted in parlement, sayeth, That he shalbe punished by Judgement of the Peeres and putt out of his office, and another more convenient putt in his place. And uppon the same our sayd sovereigne Lord the Kinge shall doe to be pronounced to make execucion without delaye, accordinge to the Judgement of the said Peeres in Parlement. Theis be the wordes of that Statute. Vide the parlement roll of that .15th yeare. n.iy. That .4. Bishops, .4. Erles .4. Barons, the Chauncellor the Treasurer, and .3. Judges were chosen and appoynted by the kinge and parlement to sett downe the kings aunsweres unto the Peticions of the Lords and Commons, wheruppon this Statute was made.2 And, memorandum, that this was not specially prayed by the Lords or by the Commons, in any of their Peticions, that parlement, but in generall a remedy against the evill doinges of Officers. Yt appeares by that statute, That the Lords may prepare their Judgement (on lyfe and deathe) but yt cannot be pronounced nor executed, without the kinges assent. T

[R] leave here 2 sydes. [L]=

[R] without the Kings assent.

[fol. 89] In Judgements on Missdemeanours, the kings assent is not requyred. Anno 50.£.3. The Lords Judged dyvers whoe were complayned of by the Commons for missdemeanours, & the kings assent not once mencioned. as: Richarde Lyons. William Lord Latymer, a Pryvye Counsellor. Mr. Ellys. John Lord Nevill a Pryvye Counsellor and John Pecchee./. and others. The kinge was 1 2

I I R.2: n. 6 (ibid., 243). 15 £.3, n. 17: Rot. Par!., II, 129, and 15 £.3, c. 2, 4 (Statutes of the Realm, I, 295-96).

The Judgement

85

then sycke at His manner of Eltham: and on the last day of the parlement, the Lords Prelatts and Commons came before Him there, where He herde the Peticions and their aunsweres (for the most parte reade) and allso the Judgements gyven on the Pryvye Counsellors and others, dont ills se loierent grantement trestouz de mesme notre Seigneur le Roy, (11.51) which shewes that the Kinge had not assented unto them.1 Anno .7.R.2. the Bishop of Norwich was accused of misdemeanors and Judged.2

[L] vide the Recorde.

ffol. Syv] Anno .io.R.2. the Lord Chauncellor. Michael de La Pole was Judged for missdemeanors by the Lords.3 And Speed sayeth, fol. [blank] That the king was much displeased therat: soe yt appeares He gave not His assent. 4 And yt was one of the Questions demaunded of Tresylian and others, anno u.R.2. whether that Judgement were erroneous or not, & resolved to be erroneous.5 And yett yt was not obiected against any of the Lords Appellees, that they Judged Pole without the kings assent. 6

.] without the Kings assent. [H] vide the Recorde.

[L]

[fol. 90] The Kinges presence in Judicature.

The Kinges presence.

\Nno 4.£.3. The Kinge commaunded the Lords to doe right and jT\Jawfull Judgement on Mortymer. The which Erles, Barons, & Peeres, havinge examyned the Articles, came agayne before the Kinge, and sayd. etc. Ibidem. The Kinge commaunded them to gyve Judgement on Symon de Bereford. The which Erles, Barons & Peeres came agayne before the Kynge & sayd. etc. Soe the Kinge was present at their Judgement but not at their Consultacion for the same.7 Noate,8 that in these tymes .3. roomes were ever prepared for the Parlement. One for the Kinge and the Lords called St. Edwards Chambre, the painted chambre: And the Courte of Requestes where the kinge, the lords and Commons mett usually. The Kinge mett the Lords most usually in St. Edwards chamber (now the parlement presence). The Lords having receaved this commaundement there of the Kinge: went into some of the other 1

For Lyons, Latimer, Ellis, Neville and Pecchee, see 50 E.j, nos. 19, 28, 32, 34 (Rot. Par!., n, 324, 326, 328, 329); 50 E.3, n. 51 '(ibid., 330). - 7 R.2: nos. 13-23 (Rot. Par!., ill, 151-56). 3 10 R.2: nos. 13-17 (ibid., 219-20). 4 Speed, The History of Great Britaine, 614. 5 I I R.2: n. 6 (Rot. Par!., in, 233). 6 7 The last half of fol. 8yv is blank. 4 £.3: nos. 1-2 (Rot. Par!., n, 53). x This passage, here indented, is crossed through in the manuscript.

[L] omytt this

86

"Judicature in Parlement

roomes to con suite therof. And then came againe before the Kinge. Soe that the kinge was not present at their consultacion.1 [L] The Kings presence.

[fol. 9ov] Anno io.R.2. The kinge was present when the Commons2 accused the Lord Chauncellor, Michael de La Pole of missdemeanours. But he was not presente at his tryall. For he demaunded yf he ought to aunswere sanz presence du Roy being Chauncellor. And in the ende dyd aunswere notwithstandinge./.3 Anno 21.R.2. in that cruell parlement of the Lords Appellants, the Kinge was presente at the parties aunsweres. Non const at^ whether He were presente at the consultacions of the Lords.4

[R] The Kings presence.

Anno Sf° H.4- The kinge was presente5 when the Erie of Northumberland was to be tryed uppon his owne Peticion. Soe were the Commons. And the Kinge delyvered the peticion to the Judges for their opynion, but the Lords claymed their Right, &6 this was on the Wensdaye. And on Frydaye followinge the king, Lords and Commons mett there agayne. And then the Chauncellor reherceth firste what was done the firste daye. And then, [fol. 91] that the Lords havinge had competent deliberation (on the sayd Peticion) and having herd and considered the statutes etc. they adiudged that etc.7 Yt is playne, the kinge was not present at this consultacion of the Lords though at their Judgement. u <J o Anno 7.H.4- The kinge commaunded the Lords to advise what manner of Process shoulde be made, and what Judgement shoulde be rendred against H. de Percy Erie of Northumberland. And a weeke after, the Lords declared their opynions unto the Kinge.8 And yt appeares in that Roll very pleynly that all evidences, & examinacions were shewen & taken by the Lords in the kings absence, & their advise agreed on allso in His absence./. But the Judgement rendered in his presence.

[L] leave here on wholl side.

To conclude, the kinge may be presente (yf He please) at the parties aunswere in capitall causes, & at the Judgement gyven. prout • 5.H.4.9 But He was never presente at other tymes of proceedinge against the delinquent nor at any aunswere for missdemeanours, for ought I have yett scene./. ' This last sentence has been lined through as well. 3 Lords, deleted. 10 R.2: n. 6 (Rot. Par I:, m, 216). 4 21 R.2: nos. 7, 8, 10 (ibid., 377, 379~8o, 381-82). 5 6 in alba Camera, deleted. they considered of the peticion, deleted. 7 5 H.4: nos. 11-12 (Rot. Par!., ill, 524). 8 9 7 H.4: nos. i, 13, 15 (ibid., 604, 606). 5 H-4: n. 12 (ibid., 524). 2

87

The 'fud 'cement [fol. 92] The presence of the Lords Spiritual! in Judicature. i

• •

i i

TN Cases of Missdemeanors, the Lords Spiritual have ever ben -Lpresente: but never in Offences Capitall. This is soe generally receaved of all men, that yt is not worthe the Labour to prove yt. Yett I wyll vouche the presidents, for that yt may be that out of one or other of them somwhat maye occurre worthye of observacion./. In Misdemeanors

[L] presence of the Bishops

b. Anno i°.R.2. Alike Ferrers was brought before the1 Prelatts and Lordes in Parlement to aunswere etc. and the Prelatts and Lords dyd ordeyne. etc.2 a. anno 42. £.3. n.20. 21. etc. John att Lee was putt to reason before the Prelatts Lords, Dukes, Erles, Barons & some of the Commons. etc.3 anno 7.R.2. John Cavendishe accused the Lord Chauncellor of briberye etc. before the Prelatts and Lords in parlement. The Chauncellor aunsweres before the Prelatts and Lords: etc.4 [fol. 93] In Offences Capitall.

Anno 4. £.3. in the parlement at Winchester die Lunae post festum Sancti Gregorii. The Erie of Kente was brought before the Countez, Barons, et autres grands et noebles en mesme le parlement. etc. for treason (done cl. m. 38.)5 Anno eodem in the Parlement at Westminster festo Sanctae Kath: The Articles of Treason beinge reade against Mortymer, the Kinge charged Les Grandz et Barouns les Peered de son Roialme to gyve Judgement, etc. And Judgement was gyven per les ditz Countz Barounz et Peeres come Juges du Parlement.^ Ibidem. The kinge commaunded les ditz Countz Barouns et Peeres to gyve Judgement on Symon de Bereforde.7 Ibidem. John Matravers was Judged per les Peeres^ Countz et Barouns assemblez en parlement. And soe were .4. others in the same parlement, all for treason, and Not one worde of the Prelatts, either when the Articles were reade, or at the Judgement.8 1

2 Lords spirituall, deleted i R.2: n. 41, 42 (Rot. Par!., in, 12-13). 42 £.3, nos. 20-26 (Rot. Par!., II, 297-98). 4 7 R.2: nos. 11-14 (Rot. Par!., in, 168-69). 5 For 4 £.3, clam., m. 38, see Rot. Parl., 11, 444. 6 7 4 £.3: n. i (Rot. Parl., n, 52-53). 4 £.3: n. 2 (ibid., 53). * 4 E.3: n. 3 (ibid.'). 3

_ M The presence of the Bishops

88 [L] The presence of the Bishops

Judicature in Parlement [fol. 93v] Anno 6.£.3. post festum Sancti Gregorii. The parlement beinge commaunded to consulte of the keepinge of the Peace, & punishment for the breakers therof, The Prelatts departed. Pur ce que apis femt as ditx Prelattx qil ne attemit pas a eux de comeiler du Garde de La pees, ne de chastisement des tielx malueis. etc. Yett afterwards, when they harde what was ordeyned touchinge those malefactors: for the apprehension of them by Hue & crye etc. and to brynge them before certeyne Commissioners to be tryed accordinge to lawe. The Prelatts gave their assente allso to the Acte. And added Excommunicacion by assent of the Kinge Lords and Commons.1 Anno i° R.2. The Commons prayed that such as Gave up Forts etc. puissent esfre a responce a ceste Parlement', et selon leur deserte fortement punis per agarde des seigneurs et Baronage. And theruppon J. G. [John Gomeniz] & William Weston were brought before the Lordes aforesayd in full parlement./. etc. that is to be understoode before the Temporall Lords, for the Bishops are never comprised in the worde Baronage.2

[R] The presence of the Bishops

[L] The presence of the Bishops

[fol. 94] Anno nmo R.2. dyvers Lords and others beinge appealed of Treason and other Misdemeanors, The Prelatts absented themselves duringe the tryall havinge firste reade a Protestacion Savinge their right to be present in Parlements. Ut Pares regni more solito consulere, tractare, ordinare, statuere, et diffinire ac caetera exercere cum caeteris Paribus etc. Verum quia in presenti Parlemento agitur de nonnulhs materiis in quibus non licet Nobis iuxta Sacrorum Canonum instituta quomodolibet interesse. Eo propter pro nobis et nostrum quolibet protestamur, et nostrum quilibet hie presens protestatur, quod non intendimus nee polumus, sicuti de Jure non possumus nee debemus, nee intendit nee vult aliquis nostrum in presenti Parlemento, dum de huiusmodi materiis agitur pel agctur, quomodolibet interesse: sed nos et Nostrum quemlibet in ea parte penitus absentare. Jure Paretates etc. semper salvo. Ad haec in super protestamur', et nostrum quilibet protestatur, quod propter huiusmodi absentiam, non intendimus nee volumus, nee nostrum aliquis intendit nee vult^ quod Processus habiti et habendi in presenti parlemento super materiis antedictis, in quibus non possumus nee debemus (ut praemittitur^) interesse quantum ad nos et nostrum quemlibet attinet, futuris temporibm quomodolibet impugnentur, infirmentur^ seu eciam revocentur.J. [fol. 94v] This was reade in full parlement And enrolled at request of the Prelatts by the kings commaunde and assent of the Lords Temporall and Commons./.3 Here the Protestacion sayes, de lure interesse non debemus, but

6 £.3: nos. 5-8 (ibid., 64-65). 2 I R.2: n. 38 (Rot. Par!., ill, 10). •' I I R.2: n. 6 (ibid., 236-37).

The judgement I thinke yt intendes that they coulde not be presente by reason of the Canon Lawe, and by reason of an Ordinaunce made at a Councell in Westminster anno 2I.H.2. (front Hoveden p. 300)' by which all Clergie men were forbydden agitari indicium sanguitm uppon payne to be depryved bothe of digmtyes and Orders. For surely (as I thynke) they myght otherwyse have ben present at bothe by the Common lawe and by the Lawe of God. But by such their longe and constant absence (even from our firste Parlements on Recorde) The Lords temporall have only herde and determyned all matters concerninge Capitall offences: which hathe contynewed soe longe in them alone that yt is become their right. Anno 4.£.3. in the Judgement against Mortymer The temporall Lords (alone) are Judges of the Parlement.2 Soe that now yt wylbe a wronge unto them (the Lords Temporall) yf the Bishops doe any waye intermeddle in such Judicatures: either touchinge the Aunswere, the replye, the proofes or the Judgement. For where they maye not Judge, they maye not doe any [fol. 95] thinge (as a Judge) that dothe conduce to that Judgement.3 And therefore (as heretofore they woulde be absente) nowe they cannot be presente, whylest the matter is in handlinge, but are to be absent alltogether dum de hmmmodi materm agitur: For, somwhat or other maye happen to be voated in their presence concerninge the Aunswere, Replicacion etc. or concerninge the Forme of Judicature herin, and by the voyces of the spiritual! Lords that Voate, yt maye passe againste the maior parte of the Temporall Lords and soe the right of the Temporall Lords susteyne wronge herin. Neither can they be present, and not voate.4 I knowe that at the Assises and Sessions dyvers of the Clergye are presente untill Judgement gyven in such cases, but theire presence cannot preiudice the Judges at the Assises, where nothinge dothe passe by voate, as in Parlement. And at the Sessions, the Laye and Clergye are equall in authoritye to heare & determyne. Noate [?] 2I.R.2. n.9_ The Commons sayd that many Judgements have been repealed bycause the Prelatts were not present, etc. front hie posfea.5

89

[R] The presence of the Bishops

[L] qma postea

[fol. 95v] Eodem anno 11 .R.2 a speciall acte paste (at the request of [L] The presence mons./.3 Here the Protestacion sayes, de lure interesse non debemus, but 1

3 4

21 H.2: Cbronica Magistri Robert de Houedene, ed. William Stubbs (London, 1869), n, 73. - 4 £.3: n. I (Rot. Parl., II, 53). especially when they shall doe the Judges wrong, deleted. ergo they are to be absent, deleted.

* This passage, indented, has been crossed through in the manuscript. For 21 R.2, n. 9, see Rot. Parl., in, 348.

9O

Judicature in Parlement withstanding that the spirituall Lords were absent pur I'onestie et salvation de lour estate, cap. 3. et in rot. parliamenti n.38. 1 This Acte I conceave was occasioned by that clause in the said Protestacion of the Prelatts, Ad haec in super protestamur etc. quod processus habiti et babendi in presenti parlemento super materiis predictis in quibus non possumus nee debemus interesse ut premittitur quantum ad nos attinet futuris temporibus non impugnentur. etc. For, there was noe such Acte to make good any former Judgements, notwithstandinge their absence. And .2do.H.$. uppon the peticion of the Erie of Salisbury the king and the Lords Spiritual & Temporall adiudged the Judgement against his father in parlement anno 2.H.4. to be good notwithstandinge that yt was rendred without the assent of the Lords Spirituall which the said Erie alledged for Errour in his peticion./.2 Soe that by the Judgement of the wholl House, neither the presence, nor the assente of the Spiritual Lords is necessarye to such Judgements.

[R] The presence [fol. y6]3 Anno 2I.R.2. the firste peticion which the Commons of the Commons mac|e was? That before this tyme many Judgements 'and ordin18 ops aunces made in the tyme of the kings Auncesters in Parlement have ben repealed, bycause the Clergye were not presente in Parlement at the makinge of the said Judgements and Ordinaunces. And therefore they desyred that the Prelatts & Clergye myght make a Proctor with sufficient power to consente in their name unto all things and Ordinaunces to be done in this Parlement. n.y.' Wheruppon the Prelatts and Clergye beinge severally exa[m]i[n]ed deputed for them all Thomas de Percy to be their proctour.4 [?] But an auncyent .M.S. Chronicle (in libra Mailross.) which hath written somwhat largely of this parlement, sayeth, The Pardons graunted to the Erie of Arundell were firste repealed by assent of the Prelatts, before the proxie was made by the Clergy for which he blames them much, sayinge, dederunt ergo locum Prelati Judicio Sanguims in hoc facto, ita quod dubitatur a pluribus si incurrerent irregular it atem pro negotio memorato. Unde contigit quod propter istud minus peccatum inciderent in aliud maim peccatum consequentur. Nam exactum est ab eis vellent nollent ut Laicam personam constituerent Procuratorem pro eisdem qm illorum vice consentiret ad Judicium Sanguinis dandum in dicto parlemento, si necesse [L] leave 6 lynes foret et occasio emersisset etc.5 I have perused all the Judgements and Ordinaunces in Parlement, and doe not yett fynde one, wherunto any excepcions were taken [fol. y6v] for the absence of the Prelatts 1

2 i i R.2, n. 38: ibid., 250. 2 H.5: n. 14 (Rot. Par!., iv, 36). - A heading, Touching the presence of the Commons, deleted. 4 21 R.2: n. 9 (Rot. Par!., ill, 348). •s Annales Ricardi Secundi, 212. See above, p. 52, n. 2. 1

The Judgement

91

and Clergye. I fynde an excepcion to the Judgement of the exile M The presence against the Spencers anno 15'° E.2 For that yt was made without the of the Blsh°Ps assent of the Prelatts, who were presente and protested in wryghtinge against yt: & one of the Errours wheruppon yt was repealed is, for that yt was made without the assent of the Prelatts whoe are Peeres of the Realme in Parlement. etc.1 But this Repeale was per duress et force, front anno 1° £.3, cap. 2.2 Soe as this cannot be alledged for a Legall president.3 [fol. 98] Anno 5 fo H.4. The Erie of Northumberlande came before H The presence the Kinge, the Lords and Commons in Parlement, etc. The Lords of the BlshoPs made Protestacion that the Judgement belonged unto them only, etc. The peticion beinge reade before the Kinge and the said Lords, the same Lords, as Peeres of the Parlement unto whom such Judgements doe belonge of Right, consideringe etc. adiudged that yt was neither Treason nor Felonye. etc.4 Noate, that at this parlement, the Bishop was a Chauncellor, and he as Chauncellor delyvered the opynion of the Lords, when they had acquitted the said Erie of Treason: whereby yt maye seeme that he and the other Bishops were presente. But noe such thinge appeares in the Recorde. Neither woulde the Bishops in those dayes be presente at tryalls on lyfe & deathe. Wherefore, allthough the Recorde dothe here saye, the Lordes indefinitely, we must understande the Lords Temporall only; especially when they claymed the sayd Judgement to belonge to them, front anno 4.£.3. Judgement was gyven by the Erles, Barons & Peeres as Judges of Parlement in poynte of Treason, where the Prelatts are not named; and therefore understood of the Temporall Lords only. 5 This wylbe explayned by the next of 7 H.4. [fol. 98vJ Anno y.H.4. rot. processus cor am Domino Rege etc. 'The ( L J The presence Kinge commaunded the Lords Temporalls Peeres of the Realme to of the Blsn°Ps advyse what processe to make & what Judgement to rendre against the Erie of Northumberland and the Lord Bardolf. The sayd Lords advysed theron and reported their opynion to the Kinge. The sayd Lords Peeres of the Realme by assent of the Kinge ordeyned that Proclamacions shoulde be made for the sayd Erie and Lord Bardolfe to appeare or ells to be convicted by awarde of their Peeres in parlement. The kinge dyd further demaunde the opynion of the said Lords Temporalls touchinge the Archbishop of Yorke. Unto which ' 15 E.2, m. I jd: Cal. Close Rolls, 1318-1323, 543. 2 I E.3, c. 2, Statutes of the Realm, i, 252, and ibid., 181, note. 3 The last half of the folio has been left blank. Folios 97 and 97v are also blank. 4 5 H.4: nos. 11-12 (Rot. Parl., in, 524). 5 4 E.j: nos. 1-3 (Rot. Parl., II, 52-53).

92

[R] The presence of the1 Bishops


the said Lords temporalls sayd etc. The Commons prayed the Kinge that they myght have cognisaunce etc. wheruppon by advyse of the Kinge and all the Lords temporalls proclamacions were made at the parlement doore for the sayd Erie and Lord to appeare. By advise of the said Lords temporalls the retournes of the former Proclamacions were examined, etc. The sayd Lords temporalls considered of the errours therin. etc. By the said Lords Temporalls (with assent of the King) by their authoritye a newe proclamacion is graunted etc. The retourne therof is reade in full parlement before the Kinge and the sayd Lords Temporalls. etc. [fol. 99] wheruppon the sayd Lords temporalls then beinge in the same Parlement (by advyse and assent of our Lord the King) by their Authoritye in Parlement awarded the sayd Erie etc. convicte of Treason etc.'2 Here all was done by the Lords Temporalls from the first begynninge of the tryall untill the Judgement. And yett the Judgement sayd to be in full parlement, notwithstandinge that the Spirituall Lords are not once mencioned nor intended to be presente at anye tyme whilest that matter of Treason was handled./3

[l] [R] The Presence of the Commons.

[L] The presence of the Commons

[fol. 100] The Presence of the Commons.

T

Ouchinge the presence of the Commons. I observe there presence to be necessarye at the parties aunswere, and the Judgement, in Cases capitall. And one reason maye serve bothe for the kings assent, and the Commons presence in such Judgements vizt. That bothe Kinge and People are to be satisfyed for the deathe of a Subiecte. Therefore all tryalls for lyfe and deathe are publique in the full Assembly of the Courte: and howe cann yt be sayde to be a full Parlement, when the Commons, one of the Estates therof, are absent? For this purposse the Courte of Requestes (auncientely called Camera alba) was prepared for such Tryalls as bothe Lords and Commons myght meete the more conveniently. Yett, though the Commons were present at such Tryalls, they had noe voyce there; but at their retourne to their owne Assembly, they myght consider amongest themselfes yf the proceedings were illegall & come agayne, & shewe y t, and requyre a rehearinge of the cause. As they dyd at the Judgement against the Duke of Clarence anno iS.E.4. 4 [fol. ioov] Neither are the Commons to be present when the Lords doe consider of the delinquents aunswere & the proofes, and determyne of their Judgements. 1 3 4

2 Judges, deleted. 7 H-4: nos. I, 13-15 (Rot. Par!., in, 604, 606-7). The second half of fol. 99 is blank; fol. 99v is blank. 18 £.4: see above, pp. 74-75.

The Judgement

93

The presidents are these. Anno i° R.2. Gomeniz and Weston were brought before the Lords and Commons, seantz en La blanke chambre & aunswered on Fryday the .2jth of November, and then they were redelyvered to the Constable of the Tower, whoe was commaunded to brynge them agayne the next mourninge. In the meane tyme the Erles, Barons and Banneretts assembled and advysed from the tyme that the sayd aunsweres were gyven in Parlement on fryday untill parte of Satterday to the howre of three of the thinges touchinge the aunsweres aforesayd, and viewed and dilligently examined the sayd aunsweres. etc. Then the prisoners were agayne brought into the parlement./. 1 Anno .20.R.2. Rot. [blank] de pardonacione Haxey. [blank] septimo die mentis febr. anno predicto predictm Thoma Haxey coram nobis et omnibus dominis Temporalibus, ac Comumbm regm nostri in eodem Parlemento nostro existentibus in Alba Camera, adductm fmt et billa predicta coram profat o Thoma ibidem pro preceptum [fol. 101] nostrum lecta, quesi- [R] 1 he presence tum fuit per charissimum Avunculum nostrum ducem Aqmt. et Lam. af the Commons. Senescallum Angliae a praefato Thomas o ipse diet am Bill am prefatis Cominibus tradidit nee ne etc.2

Anno .5'° H.4- The Erie of Northumberland was brought to his Tryall on Wensday & aunswered. Then the Commons were presente, and agayne on Frydaye followinge, where they were present allso. But I doe not fynde that they were presente with the Lords in the tyme betwene Wensday & Frydaye, when the Lords advised of the Erles peticion. etc.3 This last Recorde dothe not mencion the place where the Assembly was. Anno .y.H.z).. After the Lords had awarded Proclamacions against the Erie of Northumberland and Lord Bardolfe, to appeare at a daye, or Judgement to be gyven. The Commons not beinge acquainted herewith, they came and prayed the kinge that they myght have cognisance of that which was done touchinge the late Rebellions at Salop and ellswhere within the Realme. [fol. ioiv] Wheruppon newe Proclamacions were made, and all the subsequent proceedings were done in full Parlement (in presence of the Commons) and uppon the sayd request of the Commons, sayeth the Recorde./.4 A Question hathe ben often asked, whether the Commons dyd heretofore sytt at conferences with the Lords: which I cannot well 1

I R.2: n. 38 (Rot. Par!., in, 10).

2

Pat. 20 R.2: p. i . m. 12 (ibid., Appendix, 407-8). 4 5 H.4, nos. 11-12 (ibid., 524). 7 H-4: nos. 13, 15 (ibid., 606-7).

3

[L] The presence of the Commons.

94

[L] q. et vide recorde.

[l] [R] The presence of the Commons.

Judicature in Parlement resolve. But I verilye believe That at theis arraignements the Commons dyd sytt with the Lords. Anno . i° R.2. Gomeniz and Weston were brought before the Lords & Commons syttinge in the White Chambre ((the words are devaunt Les seigneurs avantditz1 en plein parlement. seantz en le blanke chamber etc. & the Commons are here entended, by the words (en plein parlement] and soe was the Commons demaunde that they myght be tryed before the Lords and them./.))2 Noe other Recorde speakes whether they dyd sytt or stande. [fol. 102] In Judgements on Missdemeanours, the presence of the Commons is not necessary; unlesse they doe ympeache the delinquent, prout anno 50.£.3. And then they were present at all the aunsweres of those whom theye ympeached. And replyed and demaunded Judgement, [insert]3 And when the Lords had rendred their Judgement against the Lord Latymer to be Prisoner with the Marshall, & to make fyne and Ransome to the king, The Commons prayed the Kinge that he myght be putt out of all his Offices allso, and especially from beinge Pryvy Counsellor to the Kinge, which the Kinge graunted. And when the Lords had determyned one parte of the Complainte of the Commons against Wylliam Ellis touchinge a wronge to certeine Scottishe merchaunts, The Commons prayed that a generall enquyrye myght be made of the ressidewe wherof they complayned which the Lords graunted. [fol. 102, con.] And when the Lord Nevill aunswered, they requyred that one R. Love myght be examined to prove that which the Lord Nevill denyed, and then they departed. But twoe of the Commons remayned and herde his examinacion, and tollde the Lords that the sayd .R. Love had related yt otherwyse unto the Commons the daye before, which the said R. L. denyed. Then all the Commons came agayne and Justifyed yt, & theruppon the said R. L. confest yt, & uppon their demaunde was committed.4 This shewes what interest they have in theire owne ympeachements. Soe in Anno IO.R.2. when the Commons had ympeached the Lord Chauncellor, they were presente att his aunswere, and replyed often, & enforced his oathe against him, & requyred him to be committed (& soe he was) before Judgement, but baylled presently. 5 2

I R.2: n. 38 (Rot. Par!., Ill, 10).

1

seantz, deleted.

3

An insert here is unfoliated.

4

so £.3: nos. 28, 31, 34 (Rot. Par!., n, 326, 327, 329). 10 R.2: nos. 7-12 (Rot. Par I., ill, 216-19).

5

95

The 'Judgement

[fol. io2v] But yff the Commons doe only complayne and doe [L] The presence neither ympeache the partie in wrightinge nor by worde of mouthe of the Commonsin open House, nor demaunde the tryall to be in their presence. In theis cases yt is in the eleccion of the Lords whether the Commons shalbe presente or not. And therefore, when they soe complayned of Alike Ferrers, anno \° R.2. the Lords deferred her tryall till the departure of the Parlement, that is untill the Commons had leave to departe.1 And yff the Commons presence be not necessary in such cases where they complayne much lesse is yt where they complayne not. Yett they have ben present, when they dyd not complayne; but that was uppon extraordynarye cause, prout. Anno y.R.2. A fishemonger exhibited his complaint first to the Commons against the Lord Chauncellor. And afterwards to the Lords in2 parlement, in presence of the Commons. But they were presente (noe doubte) at the Lord Chauncellors request, as he myght cleere himselfe in publique of that Sclander, & soe he dyd./. And noate that the parlement Roll dothe not mencion the presence of the Commons: but the Judges (to whom the determinacion of this complainte was referred) doe in the Awarde saye, that this complainte was firste made before the Commons, and afterwardes before the Lordes and Commons in the same parlement. 3 N

[fol. 103] [The presence of the Judges.]

I

N cases capitall, the Judges are to be presente allso, otherwyse yt is not a full Courte. But they have noe voyce. And though there be dyvers presidents which complayne of the absence of the Prelatts, prout .2I.R.2. 4 et .2.H.5. 5 and this last of the Commons allso: yett there is noe one President which fyndes faulte with the Absence of the Judges in theis cases. For, they are not tract are cum caetens Magnatibus etc. but cum caetens de Concilia. Here may be obiected that which Tresilian & other Judges aunswered to one of the Kings Questions anno n.R.2. touchinge the Judgement against Michael de La Pole that yf the same Judgement were nowe to be gyven they the same Justices & Seriaunt aforesayd woulde not gyve the same, bycause yt seemeth to them that the same is revocable as erroneous in every parte. vide the printed Statutes of .21.R.2. Aunswere.6 Tresilian was herein as much mis' I R.2: nos. 41-43 (ibid., 12-14). ' full, deleted. 3 7 R.2: nos. 11-15 (Rot. Parl., in, 168-70). 4 6

21 R.2: n. 9 (Rot. Parl., ill, 348). s 2 H.5: n.12 (Rot. Parl., IV, I 8). 11 R.2: Article xxv (Rot. Parl., in, 233). 21 R.2, c. 12 (Statutes of the Realm, II, 103-4)-

[R] The presence of the Judges.


96

taken, as in the other Aunsweres, whereby he determyned that to be Treason which the Statute of 2 5.£.3 had not declared to be Treason.1 And soe here he gave only his advyse, & not his assent and yett he sayd he gave his assent. Reade but a litle further, & you shall fynde in the very same place as followeth. vizt. which questions and aunsweres as well before the Kinge and the Lords as before the Commons were read & perceived. And yt was demaunded of all the states of the Parlement howe they thought of the Aunsweres aforesayd; and they sayd, that they thought, that the sayd Justices made, and gave their aunsweres, duely & Lawfully, [L] The presence [fol. IQJV] as good and Lawfull liege people of the Kinge ought to of the Judges. joe> ^ nc j jn tne same manner Sir Thomas of Skelton lerned in the Lawe, and Wylliam Hankford and Wylliam Brenchley & the Kings Seriaunts beinge demaunded by the Kinge of their advise etc. And my Lord Wylliam Thirnynge chief Justice of the Common Benche sayd that the declaracion of Treason not declared, belongeth to the Parlement. But yf he were a Lorde, or a Peere of the Parlement, yf he had ben demaunded he woulde have sayd in the same manner. And in lyke manner sayd my Lord William Rickhill Justice of the Common bench. And after the cominge of my lord Walter Clopton chiefe Justice he sayd lykewyse. Wherefore the sayd aunsweres be iudged and affirmed for good and sufficient in the sayd Parlement. Wheruppon the Kinge by assent of the Lords Spirituall & Temporall & the Procurators of the Clergie, and the sayd Commons, and by advyse of the Justices and Seriaunts aforesayd there beinge, yt was awarded and Judged etc. Here you see the manner of the Judges assent, vizt. there advyse only: otherwyse they are not to gyve any assent. Neither shall you fynde their assent to any statute whatsoever. [R] omytt this But 2 I mervaylle what this Sir Thomas Skelton dyd here? He had noe Sommons, yt may be he had a Proxie from some Noble man, or he came as an attendant, by appoyntment of the Chauncellor, as at this daye some Masters of the Chauncery doe. But their advyse is never demaunded. Yt may be he was the Kings Attourney or Sollicitor, but then he shoulde have ben sommoned. Yett the Judges have ever used to be present at all tryalls in parlement uppon lyfe and deathe. Anno -5.H.4. the Kinge delyvered the Erie of Northumberlands peticion to them. 3 And at the tryall of any Peere out of parlement the Judges are ever presente at this daye.

1 2 3

25 E.j, st. 5, c. 2 (Statutes of the Realm, I, 319-20). This passage, here indented, has been crossed through in the manuscript. 5 H.4: n. 12 (Rot. Par!., Ill, 524).

97

tHE jUDGEMENTG

And their presence is necessarye for their Counsell to the Lords, but their assent is not necessary to the Judgement.1 [fol. 104] The manner hon>e the Lords doe resolve their Judgement.

N:

H

Owe this was aunciently appeares in the Appeales anno 21. R.2. touchinge the deathe of Symon de Burley, vizt. yt was demaunded of every Lorde, whoe was presente at the sayd parlement, his advyse of the sayd Symon, touchinge the sayd Cryme.2 Eodem anno in the printed Statutes of .2I.R.2. cap. [blank] the Judges opynions were demaunded in the same manner, begynninge with the Kings Seriauntes & soe ascendinge to the chiefe Justice.3 At this day, the question is putt by the Lord Chauncellor or Lord Keeper, and the puisne4 Baron aunsweres firste, content, or not content, & soe all the Lords in order. But theyr Lordships doe firste debate the Judgement amongest themselves, and the question is out of that which seemes to be most generally agreed on./. And 5 howe inconvenient yt woulde be for the Kinge to be presente at this, lett others Judge./. His Majestic [fol. ic>4v] was not presente at the resolucion of the Lords Judgement against Symon de Burley, though the sayd Symon was that Kings greate favourite: For the Recorde sayeth, the question was asked of every Lord etc. and afterwardes the sayd Duke (of Gloucester) and Erles of Arundell and Warrwick woulde knowe your advyse (thrice redoubted Lord) etc. in the article of appele to Kinge R.2.6 By which yt appeares that the kinge was not then present when the Lords resolved of their Judgement, and yf He myght have ben then present, suerly He woulde not have ben absent, out of his tender Love to His favourite.

[L] omytt this

[R] omytt this

[l] [fol. 105] [The

Judgement.]

I

N the Judgement yt selfe, is to be considered, i. Whether it may be ultra Legem. 2. By whom yt is to be demaunded. 3. By whom to be rendred. Touchinge the first. In Judgements for deathe, the Parlements have ben strictlye guyded per legem terrae. Otherwyse they woulde not have adiudged Edmund Erie of Kente (the Kings owne uncle) to

' Two blank folios follow. - 21 R.2: n. 8 (Rot. Par/., in, 380). 4 21 R.2: c. 12 (Statutes of the Realm, II, 104-5). youngest, deleted. 5 This passage, here indented, has been crossed through in the manuscript. 6 21 R.2: n. 8 (Rot. Par/., Ill, 380). }

[R] The JudgeMENT

98

Judicature in Parlement be drawen, hanged and beheaded, myght yt have ben lefte to their discrecion. Vide lettres .£.3. to the Pope speakinge of this Erles Judgement by the Parlement for Treason, cut sentencia, mbductu tamen quibusdam poenis obprobrioris quae in detestacionem tanti scaeleris de rigore Legis dicti regm erat infligendae, dolentes adquievimm. Quaere, whether that Judgement were to be drawen, hanged and beheaded, for yt appeares not there directly. This was in the parlement of 4'" £.3. at Winchester, the Roll wherof is loste.1 The Lords Judged Mortymer to be drawen and hanged as a Tray tour, anno 4'° £.3 at Westminster.2 Comimile pro Symon de Bereford, ibidem n.2. 3 They Judged John Matravers to be drawen, hanged and beheaded, ibidem, n.3 for treason.4 [fol. io5v] Anno i° R.2. Wylliam Weston was Judged to be drawen and hanged, for delyvring up of Forts etc. And John Lord Gomeniz. (a German.) was Judged to dye. But bycause he was a gentleman, & a Bannerett, and was not the Kinges Liege man, he shoulde be beheaded, (that beinge the deathe used to gentlemen in Germanye.)5 Anno u.R.2. Symon de Burle was adiudged to be drawen, hanged and beheaded, for Treason.6 Anno 21. R. 2. The Erie of Arrundell, & others were adiudged to be drawen, hanged, beheaded and quartered, for Treason.7

Though they all differ somwhat, yett herin they agree, that the opprobrious deathe of a Traytour is to be drawen and hanged, which the parlement coulde not alter, noe not in their Judgement against the Kings uncle. Yt was poena per Legem regni infligenda. The Kinge myght pardon all, & dyd usually pardon all, save the beheadinge, to the Nobillitye of His owne blood, and of later tymes to all _ Noblemen generally. [Lj [R] The judge-

ment

[fol. ioy] 8 As the Parlement coulde not dispense with nor omytt any parte of the Judgement which the Lawe ympossed on Traytors. Soe they coulde not adde more then the Lawe requyred. This may appeare by their Judgements in Forfeitures of the parties estate. Anno 4.'° £.3. the Parlement spake nothinge what Mortymer shoulde forfeicte to the kinge, they well knewe the Lawe woulde 1 2 5 7 x

For a reference to this parliament, see Rot. Par!., n, 55. 3 4 4 E.3: n. I (ibid., 53). 4 E.j: n. 2 (ibid.}. 4 E-3: n. 3 (ibid}. 6 i R.2: n. 40 (Rot. Par!., m, 12). 1 1 R.2: n. 61 (ibid., 243). 21 R.2: nos. 7, 8, 10 (ibid., 377, 380, 381-82). Fols. 1 06 and io6v are blank.

The 'Judgement

99

gyve yt the Kinge. 1 And soe yt dyd, all the lands which Mortymer then had in demesne, in reversion, or in service, vide the restitucion. anno 28.£.3. n.io. 2 The Parlement was allso sylent hcrin in the Judgements of this nature, anno 4.£.3. et \" R.2. 3 Anno 50.£.3, n.45- The Ordinaunce against woemen which shall make suytes etc. to the King etc. and against Allice Ferrers by name, is uppon payne of as much as the sayd Allice cann forfeite, and to be bannished. 4 And afterwards anno \° R.2. she had Judgement accordingly for breakinge that Ordinaunce, to forfeicte all her goods; and all her lands asswell in demesne as in reversion, and to be bannished. 5 ((But had yt not ben for the former Ordinaunce, the Lords coulde not have gyven any such Judgement against her: her Offence beinge only for procuringe favours from the late Kinge to her friends, contrary to an former Order of the Councell./. Vide the president at large.)) [fol. loyv] Amis i\mo et 2im" R.2. The Lords adiudged the forfeictures to the Kinge (of them whoe were convicted of Treason uppon the Appeales) greater than the Lawe woulde gyve. But there paste speciall Actes in cache parlement by full consente of the Commons to confirme bothe the Judgements and the forfeictures allso, which shewes that the Judgements, beinge the Acte of the Lords alone, cannot extende ultra Legem terrae.(} Anno 2.H-4- The Lords dyd adiudge and declare the Erics of Kent, of Salisbury & others slayen in a Late rebellion, to be Traytours, and to forfeicte as Traitours all their Fee symple Lande, as the Lawe of the Lande wylleth. n.30. 7 Anno 7.H-4- The Lords Judged the Eric of Northumberlande and the Lord Bardolfe, to forfeicte (for treason), all their Lands in their owne demesne, or wheroff others were seised to their use.'s , ,, , [fol. 108] Soe lyke wyse in Fynes & Amerciaments to the Kinge. I1- = The Judgements were aunciently indefinite prout anno 36.£.3. n.2i. ( ; The Commons complayne of excessive fynes, that they ought not to 1

4 £.3: n. I (Rot. Par!., n, 53).

~ 28 £.3, n. 10: the restitution is n. 12 (ibid., 256). 3 4 £.3: nos. 2-3 (ibid., 53); I R.2: n. 40 (Rot. Par/., in, 12). 4 s 50 E-3, n. 45: Rot. Parl., II, 329. i R.2: n. 43 (Rot. Par/., in, 14). 6 21 R.2: nos. 7, 8, 10 (ibid., 377 78, 380, 381 82); i i R.2, c. \ and 21 R.2, c. 2 (Statutes of the Realm, n, 43-52, 95-99). 7 9

2 H-4: n. 30 (Rot. Parl., in, 459). N 7 H-4: n. 15 (ibid., 607). 36 £.3, n. 21: Rot. Parl., n, 270.

[fol. 108] Soe lyke wyse in Fynes & Amerciaments to the Kinge. I1- =[r] LEAVE HERE ' a wholl syde

[l]

IOO

Judicature in Parlement be accordinge to the abillitye of the person, but the quantitie of the Trespas as is conteyned in many Statutes. a. anno 42 £.3. n.26. John at Lee is committed to the Tower there to remayne as prisoner untill he hathe made fyne and ransome to the Kinge at the Kings wyll. 1 f. anno 50.£.3. Richarde Lyons is awarded to prison at the Kings wyll, to be putt to his Fyne and ransome accordinge to the Quantitie and horribillitye of his trespas, and to loose his Franchise of the Cittye of London. And, that he shoulde be noe more Kings Officer nor approache the Kings house. And afterwards the sayd Richard beinge brought agayne before the Lords in Parlement: they tollde him, that his yll deeds were soe greate and horrible that he had not sufficient wherewith to make satisfaccion. And presently he submitted himselfe to the Kings Grace, his body, Lands and goods; desyringe only to have wherewith to lyve, yf yt shall please the Kinge. And the Lords awarded that all his lands and goods shall be seised in the Kings hands, & his body in prison at the Kings wyll./.2 Noate,3 the Commons were present & as yt seemes well pleased with this Judgement, they havinge ympeached him very [?] But at the next parlement anno 51 £.3, n.8y They moved the Kinge to pardon all them whoe were uniustly convicted in the last parlement And first for this R. Lyons & for generall restitucion unto him n.88. 4 [fol. io8v] b. Eodem anno 50.£.3 The Lord Latimer is awarded to make fyne and ransome at the Kings wyll. n.28. c. Ibidem. Wylliam Ellys. to make fyne and ransome to the Kinge. n.32. d. Ibidem. John Pecchee. to make fyne and ransome to the Kinge. n-33e. Ibidem. John Lord Nevill. to make restitucion etc. & over this lett him be punished accordinge to the quantitye of his misdeeds, as others are. n.44. 5 g. Anno y.R.2. Cavendishe is awarded to paye damages to the Chauncellor for his false accusacion, & to remayne in prison till he hathe satisfyed the damages (taxed at 1000 marks) and the Kinge, 1 3

s

42 £.3, n. 26: ibid., 298. - 50 E.j: n. 19 (ibid., 324). This passage, here indented, has been crossed through in the manuscript and is 4 not wholly legible. 51 £.3, nos. 87, 88 (ibid., 374). 50 E.3, nos. 28, 32, 33, 34 (ibid., 326, 328, 329).

The Judgement

101

de fine mo competente sibi inde debito.* But yt is not sett downe, howe much to the king. Theis fynes & ransoms were not putt in certeyne: for that, as I conceave, the Lawe lymitts them to be at the kings wyll, saluo contenemento. Yett the Lords myght, and noe doubte dyd rate them after the Judgement gyven, as may be gathered out of that for R. Lyons, where they [fol. 109] called him before them agayne after the Judgement, to consider, as yt shoulde seeme, at what rate to taxe the same, & founde his wholl estate not sufficient. 2 And this agrees with the Auncient Courte Barons, where the Amercements are offeared [?] after the presentment, etc. We may coniecture at this also, out of the use at this daye in the Starre chamber, which Courte, in many thinges, reteynes antiqua vestigia Magm Comillii, where all fynes for the Kinge are nowe mittigated after the Censure. But I verily believe that aunciently they were then rated, or taxed. And yf they may mittigate a Fyne especially awarded to the Kinge, a maiore they may taxe yt after the awarde, the certeintye not beinge afore specified. In ymitacion of this in the Starrchamber, the Lords made that Noble Order for mitigacion of Fynes in parlement, anno 21. Jacobi} [fol. 110] In 4 cases of missdemeanors, the Lords seldome inflicted any corporall punishment besydes Imprisonment. I fynde not any other in the Auncyent Recordes. And Their prison was sometymes the Tower of London, front John at Lee, anno 42.£.3. Wylliam Fitzhugh, anno \" R.2. n.32 ^ 3 3 - bycause he dyd not meinteyne his complaint. 5 That was their prison allso for capitall Offences, prout eodem anno Weston, & Gomeniz. But the parlement founde them there.6 Yett anno 28.H.6.7 they sent the Duke of Suffolk thither. The other presidents of .42. et .50.£.3. mencion not place of ymprisonment. <s Of latter tymes the Sergeant at Armes attendinge on the Great Seal carryes them most

1

7 R.2: n. 15 (Rot. Parl., ill, 169-70).

2

50 K-3: n. 19 (Rot. Parl., n, 324). A passage to the same effect has been deleted.

' For the order of 21 Jacoki, see Roll of Standing Orders of the House of Lords, n. 37, 3 April 1624 (House of Lords Manuscripts, 1712-1714, 6). 4

Fol. loyv is blank. This passage, here indented, has been deleted in the manuscript.

s

42 [{.3: n. 26 (Rot. Parl., \\, 298). I R.2, nos. 32, 33: Rot. Parl., ill, 9. 7 I R.2, n. 38 (Rot. Parl., in, 10). 28 H.6: n. 17 (Rot. Parl., v, 177). The reference to 42 K.3 is not clear, ^o M.y. nos. 28, 32, 3 3 (Rot. Parl., \\, 326, 328).

6 (S

[l.j here recyte that Order. [R] The execucion in Missdemeanors [R] quia postea celiter

IO2

Judicature in Parlement usually to the Fleete by commandement of the Lords and sometymes to other places, prout.

[L]

=

[fol. nov] Judgements for satisffacion etc.

I

N complaints of extorsions and oppressions the Lords awarded satisffacion to the parties wronged, which sometymes was sett downe in certeyne, & sometymes in generall words, yett allwayes secundum Legem, att leastewyse non ultra legem. Anno 42 £.3. n.28. full restitucion was made unto Wylliam Latymer of the wardeshipp and marryage of the heire of Sir Roberte Latymer knight, wherof he was outed by duresse by John at Lee. But this was done at a Create Counsell per commandement de Roy after the Judgement./.1

Anno 50 £.3. Wylliam Ellys was awarded to paye unto J. B. & Wylliam Cowper xx/! apeece for their damages, n.34. 2 Ibidem. John Pecchee, was awarded que face gree a les parties complaignantz de luy pur les extorsions issint prises, n.33. 3 Ibidem. John Lord Nevill is awarded to make restitucion unto the executors of the Ladye Ravensholme; for an oppression done unto her wherof the Commons complayned. n.34. 4 Anno y.R.2. The parlement referred the false accusacion of Cavendishe against the Lord Chauncellor to be herde and determyned by the Justices in such sorte as yf the parlement had determyned the [fol. i n ] same. And the Justices awarded Cavendishe convicted of Slaunder, and, that the Lord Chauncellor shoulde recover his damages, the which damages they allsoe taxed at 1000. marks. And awarded further that the sayd Cavendishe shoulde be ymprisoned untill he had satisfied asswell the sayd Chauncellor for his damages, as the Kinge pro fine competenti sibi inde debito.^ The Judgement against Allice Ferrers, anno i° R.2. was, That yf she had purchaced any Lands by force or duress, be yt by fyne or by deed en pais^ or deed enroulled or otherwyse, that her purchase be helde for none, and lett the parties whoe fynde themselves aggrieved have their recovery against her by process in the Chauncery; and, by advyse of the Grands of the Conseil, lett right be done to the parties, and restitucion made, accordinge as the case re1 3 5

42 £.3, n. 28: Rot. Par!., n, 298. 50 £.3, n. 33: ibid. 7 R.2: n. 15 (Rot. Par!., ill, 169-70).

2 4

50 £.3, n. 32: ibid., 328. 50 £.3, n. 34: ibid., 329.

103

The Judgement

quyres: Soe as the purchaces made bona fide be not undone or adnulled by any waye./.1 None of these were ultra kgem. [fol. mv] References2 to the common Lawe.

[L]

N

Either woulde the Lords Judge any complaint of pryvatt persons where in the partie myght have his due remedy at Common lawe. front anno 50.£.3. Botilde and Cowper accused Wylliam Ellys for extortinge of .17. Nobles etc. from certeyne Merchaunts of Pruse. And allso for their wronge ymprisonment by Ellys false suggestion to the Kinge. And the Lords referred the takinge of the .17. nobles etc. to the Common Lawe. But uppon the examinacion of the ymprisonment, yt was proved that Ellys dyd wryte his lettres unto one of the kings beddchamber, falsely suggesting against Botilde and Cowper, uppon which lettres (beinge shewen to the Kinge) His Majestic commaunded them to be committed. This the Lords expounded to be a false suggestion in Ellys to the kinge himselfe, & Judged him for the same.3 Had that poynt ben cleered in the statute of false Suggestions;4 happely the Lords woulde have referred that, allso to yts proper place. Soe allso anno 5.R.2. the Lords referred the accusacion of Clyvedon against Cogan to the Common lawe.5 By theis yt appeares that the Lords woulde not assume unto themselves Tryalls at Common lawe.

[R] leave 2. sydes.

-I

[fol. 112] 2. Touchinge the demaunde.

T

Hat verily belongs to the partie whose suyte yt is. To the Kings Councell, for the Kinge, yf the Articles were de par le Roy. And to the Commons yf they ympeached the delinquent.6

[R] By whom yt is to be demaunded. [L] leave here 2. wholl sydes.

-]

[fol. 115] 3. By whom the Judgement ought to be rendred.

Y

T appeares playnly by many presidents, That all Judgements for lyfe and deathe are to be rendred, by the7 Stewarde of Englande: or by the Stewarde of the Kinges House. And this is the reason, why at every parlement the Kinge8 makes a Lord Stewarde of His House, though He hathe none out of Parlement. And, at such 1

I R.2: n. 43 (ibid., 14). -Judgements, deleted. 50 £.3: nos. 31-32 (Rot. Par!., n, 327-28). 4 Probably 37 £.3, c. 18, and 38 £.3, tf.i, c. 9 (Statutes of the Realm, I, 382, 384). 5 5 R-2: n. 44 (Rot. Parl, III, 106). 6 The rest of the folio is blank; also fols. 113, H3v, 114, and ii4v. s 7 Constable or, deleted. auncientlv, deleted. 3

[R] The Judgement rendred.

IO4


arraignements the Stewarde is to sytt in the Chauncellors place. And all Judgements for missdemeanors are to be rendred by the Chauncellor, or by him whoe supplyes the Chauncellors place. The presidents for lyfe and deathe are theis. Anno i° R.2. J. L. Gomeniz and William Weston were brought by the Constable of the Tower before the Lords in full Parlement syttinge in the White Chambre, where they were severally arraigned at the Commaundement of the Lords by Sir Richard Le Scroop Chevalier Stewarde of the House of our Lord the Kinge in manner followinge. etc.1 Here the Lords commaunded the arraignement. They dyd not appoynte the Stewarde to doe yt. Yt belonged to their office./. [L] The Judgement.

[fol. ii5v] Anno n.R.2. Anno 20.R.2. n.23- Thomas Haxey was arraigned for Treason before the Kinge the Lords & Commons in alba Camera^ by the duke of Lancastre Senescallum Angliae, and the Judgement rendred by

him.2 Anno 2I.R.2. all those Judgements uppon the Appeale were rendred per Senescallum Angliae} The records of .£.3 and .H.4 are sylent herin, by whom the Judgement was rendred. Yt may be obiected, that anno 5.H.4. the Lord Chauncellor kepte his place at the tryall of the Earl of Northumberland. Bycause he delyvered the opynion of the Lords: Aunswere. That coulde not properly be called a Tryall. For yt was uppon the Erles owne peticion. And yt was not resolved whether yt were Treason or Felony, or what his offence was. But, had he ben arraigned uppon Articles of Treason or Felonye: that shoulde have ben done by the Stewarde syttinge in the Chauncellors place. Neither dothe yt appeare by the Recorde that the Chauncellor kept his place, though he afterwards delyvered the opynion of the Lords. Vide the Recorde at large.4 [R] The Judgement, rendred.

[fol. 116] Soe lykewyse in the parlement of 6 Februarii anno i° Caroli. The Lord Keeper kept his place, when the Articles of Treason etc. were reade against the Erie of Bristoll, (but he dyd not arraigne him theron.) They were reade, & his aunswere herde, by appoyntment of the House, & some wyttneses allso examined, to the ende they myght understande the trewe nature of his offence; & ' 3 I R.2: n. 38 (Rot. Par!., ill, 10). 4

2 20 R.2, n. 23: ibid., 341.

21 R.2: nos. 7, 8, 9, 10 (ibid., 377, 380, 381, 382). 4 5 H.4: nos. u-12 (ibid., 524).

The 'Judgement

105

then to determine howe & in what manner to proceed against him for the same. Noate, the spirituall Lords dyd not delyver their opynion herin./-' To conclude. All Recordes which doe mencion by whom the delinquent in cases capitall was arraigned & the Judgement rendred, doe saye that yt was by the Stewarde of Englande, or of the House. And in resemblaunce of this, A Lord Steward is appoynted at every tryall of a Peere./. out of Parlement./.

IJ

Touchinge Judgements rendred by the Chauncellor in cases of missdemeanors, yt is needlesse to recyte any presidents. Only this I wyll say; the Chauncellor never gave Judgement on lyfe and deathe./. And the Steward never in Missdemeanors. [fol. u6v] And, M The Judgement though there be presidents, of Judgements, on Commoners gyven 2 by the Stewarde of England in Parlement. prout anno 20. et 2I.R.2. yett I have scene none of Judgements on the Peeres rendred by the Stewarde of the Kings House. And the reason may be, for that there was aunciently ever a Senescallus Angliae. Quaere tamen whether the [R] leave here Stewarde of the House beinge nowe a Peere may gyve Judgement on -3Peeres, or not. I thynke he maye yf there be noe Stewarde of Englande: otherwyse, for what purpose is a Stewarde of the House constantly made everye Parlement./. though but duringe the3 session!/. Judgement is not to be rendred, untill yt be demaunded.4

1 2

3 4

LJ, m, 582, 585-87, 648-49, 669, 671, 672-75. 20 R.2: n. 23 (Rot. Par!., Ill, 341); 21 R.2: n. 9 (ibid., 380-81); 21 R.2: n. 10 (ibid., 381-82); 21 R.2: n. 13 (ibid., 384-85). parlement, deleted. This passage, indented, has been crossed through in the manuscript. The rest of the folio is blank.

io6

[L] [R] The Execucion.

[R] on a Peere.

[R] a Commoner.

117] The Execucion. thinge considerable in Judicature is the Execucion o i R toehlts:erfit THethet laste judgement. And firste in capitralll offences. I have seen but twoe precedents therof in the Parlement Rolles: the firste is .4.E.31' and the other .2I.R.2. That of 4.£.3. begann on Monday next after the feaste of St. Katherine (25. No:) There were longe Articles exhibited against Mortymer, whoe was Judged to dye for Treason. And theruppon (sayeth the Recorde)2 commandement was gyven to the Erie Marshall to execute the sayd Judgement. And to the Maior, Aldermenn and Sheriffes of London, to the Constable of the Tower, and allso to them whoe had the garde of the sayd Mortymer, to be aydinge unto the said Erie Marshall to doe the sayd execucion. The which execucion was done and performed on Thursedaye next after the firste daye of the parlement which was the xxixth daye of November./. Ibidem, n.2. Judgement is gyven on S. de Hereford to be drawen & hanged. And theruppon yt was commaunded to the Marshall to doe execucion of the sayd Judgement, the which execucion was done & performed the Mondaye next after the feast of St. Thomas the

Apostle. The parlement ended before.3 vide brevem per Expemis militum ent. g Decembris./. [L] The execucion. On a Peere.

[fol. nyv] Anno 2I.R.2. The Erie of Arundell was Judged to dye. And theruppon yt was commaunded to the Lord Morle deputie to the Erie Marshall of Englande to doe execucion nere the Tower of London. And soe the sayd Erie of Arundell was beheaded the same daye. The4 Erie of Nottingham, one of the Lords appellants was Erie Marshall at that tyme, and therefore his deputie dyd execucion.5 Ibidem. Thomas Erie of Warwick being Judged to dye, the kinge dyd pardon the execucion, and graunted him his lyfe, and, that he 1 2 3 5

4 £.3: nos. 1-2 (Rot. Par!., II, 52-53). the Erie Marshall was commaunded to doe execucion, deleted. 4 £.3, n. 2: Rot. Par!., II, 53. 4 (as I remember, deleted. 21 R.2: n. 7 (Rot. Par!., ill, 377).

107

The Execution should remayne in perpetuall prison out of England in the Isle of Man. etc. and that he be at Sea uppon his passage before the ende of one moneth. etc. And theruppon he was delyvered unto Monsieur Wylliam Lescroop, & to Monsieur Stephen his brother, to bringe him safely to the said Isle of Man. etc.' The Erie Marshall was commaunded to doe execucion on a Peere. And the Marshall on a Commoner. The Commaundement (noe doubte) yssued from the Lords with the kings assent, but the Records are silent herin./. Thus much touchinge the execucion quoad mortum.2

[R| Leave here 2 sydes.

] [fol. 119] The execution in Missdemeanors.

I

[R] The execucion

N Misdemeanors the greatest corporall punishment hathe ben by ymprisonment. I fynde none other in the auncient parlements. But whoe was their Officer to carry the delinquent to the Prison, is not recorded, save only he to whose Custodye he was commytted.

front anno 42 £.3. John at Lee was commaunded to the Tower, et dit fust al Monsieur Alein de Buxbull, Constable de La Tower qil prist garde de luy.j. It shoulde seeme that this Aleyne Buxhull was present at this Judgement, either as one of the House of Commons, or as a Courtier, the Judgement beinge in the Courte after the Lords and dyvers of the Commons had dyned with the kinge./.3 Anno 50.£.3. n.28 et 29. The Lord Latymer is awarded to prison destre en garde du Marescball. And afterwards uppon the mayneprise of dyvers Erles, Barons & Bishops, the Erie Marshall of Englande surrred him to goe at Large. Soe, yt seemes, he was at first committed and delyvered to the Erie Marshall ymediately.4 Anno i" R.2. Wylliam Fitzhugh was commaunded to the Tower. But yt appeares not whoe carryed him thither. 5 [fol. nyv] Att this daye the Lords have used to ympose some corporall punishement in Missdemeanors. front Flood.6 [fol. 120] And at this daye yf a Peere be comytted to prison the gentleman usher hathe the charge of him thither. And the Sergeant attendant on the Create Scale of a Commoner, front, [blank] Anno 18 Ja: 16 die Februam. The Erie of Berkshire sente to the Fleete by 1

2 21 R.2: n. 8 (ibid., 380). Fols. 118 and I i8v are blank. 4 42 £.3: n. 26 (Rot. Par!., II, 298). 50 £.3: nos. 28, 29 (ibid., 326-27). 5 I R.2: n. 33 (Rot. Parl., ill, 9). 6 LJ, in, 133-34. The rest of the folio is blank. 3

[L] The execucion.

[R] The execucion.

io8


the gentleman usher for forcibly thrusting of the Lord Scroop in the open House.1 Anno 21 Ja: 13. die Mail. The Erie of Middlesex was committed to the Tower, and a warrante made to the Gentleman usher to carry him thither. 2

[L] Execucion.

Anno \° Caroli. in the parlement begun 6 Februarii [blank] die [blank]. The gentleman usher was commaunded to brynge the Erie of Bristoll to [blank]3 [fol. i2ov] But yf a Commoner be comytted, the Sergeant at Armes attendinge on the Create Scale dothe usually carry him to prison; and he allso hathe the charge to see any corporall punished [sic] inflicted on him. prout. [blank] Anno 18 Jac. [blank] die [blank] Wright, & twoe Sergeants at Mace who had arrested a servaunt to the [blank] were censured to ryde with papers on their heades for their wyllfull contempte & skorne of the priviledges of parlement. And for that the Sergeant at Armes dyd not see the whole punishement executed on them, he himselfe was committed.4

[L]=

[R] The execucion.

[L] leave .6. lynes.

[fol. 121] For Recovery>e of damages or restitucwn to the far tie grieved.

\Nno 50.£.3. Botilde and Cowper hade each of them 2O/( awarded ./~V.for their damages, and yt is not there declared howe they shoulde recover the same.5 In the same yeare, John Lord Nevill uppon the complaint of the Commons, is awarded to make restitucion to the executors of the Lady Ravensholme, but neither the sume to be restored, nor the manner howe the same shalbe recovered, is declared.6 In theis .2. cases, I conceave the partie is to have his remedy (the parlement beinge ended) in the Chauncerye, & not out of any other inferiour Courte at Common Lawe. But the Lords of parlement may dyrecte howe yt shalbe levyed. prout [blank] Anno i° R.2. The Lords adiudged Allice Ferrers to forfeicte all her lands and goods to the King. And, notwithstandinge this for1

Ibid., 20. anno eodem [blank] die [blank] The erle of Arundell [blank], deleted. - LJ, in, 383. There is no mention of the warrant, but Elsyng doubtless drafted it himself, as clerk. ' LJ, in, 576. 4 Ibid,, 25 (21 Feb. 1620/21), 31, 35. John Robinson, a servant of the earl of Oxford, had been arrested contrary to the privilege of Parliament. The remainder of the folio is blank. 5 And therefore noe doubte but in such cases the partie hathe his remedy at the Common lawe, deleted. 50 £.3: n. 32 (Rot. Parl., II, 328). 6 50 £.3: n. 34 (ibid., 329).

The Execution

109

feicture, yf she hathe purchased any Lands by force or duresse, yt shalbe voyde. And the partie grieved to have his remedy by processe in the Chauncerye, & by Advise of the Lords of the [fol. i2iv] Counsell lett Right be done, & restitucion made, etc.1 Anno 7.R.2. J. Cavendish was awarded to paye .1000. marks to the Lord Chauncellor for his dammages, & to remayne in prison untill he had payde the same./.2 [L]

[fol. 122] For levyinge of fynes to the Kinge

[R] The execucion.

N

Oe Courte cann Levye Fynes for the Kinge but the Exchequer. And therefore the use is at this daye in the Starrechamber (and soe noe doubte ever was) for a writt to be sente unto the Clerke of that Courte out of the Chauncery to certefye the Fynes. And the Chauncery doth transmytt the same into the Exchequer. Anno 18 Jacobi. A writt was sent me out of the Chauncery (syttinge the parlement) to certefye the Fynes of that parlement into the Chauncery. The then Lord Treasurer affirminge that the auncyent use and manner therof was soe, and that the Chauncery is to transmytt the same into the Exchequer.3 Thus much touchinge Judgements in parlements on delinquents. finis .23. Aug. 1627. apud Cornewell./.

1

I R.2: n. 43 (Rot. Par!., ill, 14).

2

The case was turned over to the judges. See 7 R.2: n. 15 (ibid., 169-70). The remainder of the folio is blank.

3

For a discussion of other versions of this section on levying fines, see Foster, Painful Labour of Mr. Ehyng, 43-44. The version at the Huntington Library (El. 8392) is given overleaf.

no

'Judicature in Parlement [El. 8392, fol. 122] At this day in the Starchamber the Clerke estreats those Fynes immediately into the Exchequer. And soe I believe the Clerke of the parlement did anciently. Otherwise this high Court which makes Lawes should not have so great authority as an inferiour Court Crminall. But Judicature haveing beene longe out of use in Parlement these formall partes therof are unknowne, but by coniecture.3 A" 18 Jacobi. A writt was sent me out of the Chancery (sitting the parlement) to certify the Fynes of that parlement into the Chancery. The Lord Treasurer then affirming that the use and manner thereof was soe, and that the Chancery should transmitt the same into the Exchequer. Ib obeyed the writt (as in duty I ought) but it then seemed very strange unto me that any other Court should by hearesay (as it were) take notice what is done in the parlement Or that that Court which hath power to impose should not have power to estreate the same Fynes. And c 18 Junit 1628 The Lord Keeper and Mr. Baron Denham affirmed this to be the Auncyent manner of certifying, or estreatinge any thing out of the parlement. And the lyke writ is directed to the Clerke of the Starrchamber to estreate fynes out of that Courte. and thus much touchinge Judgements on Delinquents. thes presidents given me by Mr. Elsing clerke of the parliament.d a h

c d

This first section has been crossed through. This section, through the words 'the same Fynes', has also been crossed through. This last section has been added in Elsyng's own hand. The last sentence is in another hand.

Ill

APPENDIX

[foi. 123]' The aunswere of the partie accused.

I

Have seen but .2. presidents where the partie accused was not brought to his aunswere. The one is that of .4.£.3. of Roger Mortymer whoe was prisoner in the Tower of London, and condemned in the parlement at Westminster, and never called to his aunswere, but the Judgement was reversed as erroneous in this

poynte & others./, anno 28: E.3.2 The other is of John3 Mortymer, whoe was committed to the Tower uppon suspicion of Treason, and brake prison, and beinge taken agayne, he was indicted in parlement tyme before certeine Commissioners at Guildehall in London and the Indictement retourned into the Chauncery. And the Chauncellor brought yt into the parlement by commaundement of the duke of Gloucester protector etc. wheruppon the sayd John was brought prisoner before the Lords and Commons, the Indictement was reade unto him, the Commons affirmed the Indictement to be trewe, And prayed Judgement, & theruppon he was condempned, without speakinge one worde [fol. i23v] for himselfe for ought appeares by the Recorde.

which is very strange to me. vide anno 2.H.6 rot. parlementl in cedula.f.

n.i8./. 4

All other precedents mencion the parties aunswere, yf he were lyvinge and coulde be founde. Yf he withdrewe himselfe or adhered to the kings enemyes or Rebells as the Erie of Northumberland and the Lord Bardolf dyd in Wales anno y.H.4.5 or coulde not be apprehended, as Thomas Mortymer coulde not anno 2I.R.2. 6 lurkinge & hidinge himselfe amongest the wylde Irishe, then proclamacions were made for them to appeare at a daye & to render themselfes

before the kinge and Lords in parlement. And the Commons were ' These folios are not numbered in the manuscript. 2 3 5

4 £.3: n. i (Rot. Par!., n, 53); 28 £.3: nos. 9-12 (ibid., 255-56). Thomas, deleted. 4 2 H.6: nos. 17-18 (Rot. Par!., iv, 202). 7 H-4: n. 13 (Rot. Par!., ill, 606). 6 21 R.2: n. 9 (ibid., 380-81).

112

'Judicature in Parlement pryvye to this proceedinge of the Lords before their Lordships went to Judgement: as in those .2. presidents. Yf the partie were deade, as Thomas duke of Gloucester was anno 2I.R.2. 1 and Roberte Plesington eodem anno2 good proofes were made of the faulte wherof he was accused, before the Lords and Commons, and then the Lords proceeded to their sentence. Otherwyse in all cases, the partie was brought to his aunswere. [fol. 124] The manner howe the partie accused is brought to his aunswere. \Nno 21. Jacobi Regis, the Lords of parlement appointed a ComJL\. mittee of themselves to consider of the Municions and stoares of the kingdom, etc. whoe founde that the Erie of Middlesex had committed many misdemeanours in his place as Treasurer. And a collecion therof beinge to be reade in the House, yt was agreed uppon the Question, that the Erie of Middlesex might be present at the reading, but not at the debate therof. And soe he was presente, & made his aunswere in his place, but forbare afterwards to come to the parlement whilest that matter was in debate. The Commons allso accused him of briberye, extorsions, & ymposicions, wheruppon the Lords appointed a committee to examine the same, whoe allso took informacion of some other missdemeanors committed by the said Erie in the office of Create Wardroabe. And made a collecion of them all. Which beinge reduced into a Charge, the Lords sente a copye therof [fol. i24v] unto the said Lord Treasurer in wrightinge. But yt was then agreed that his Lordship ought to have receaved his charge at the .barre. The Lord Treasurer sente his aunswere, and interrogatories and wittnesses names to be examined theron, desyringe to have copyes of the examinacions taken against him, and counsell to be allowed him at the hearinge of his cause. The Lords sent him copies of all the examinacions, asswell for him, as against him, but denyed him counsell. And a day peremptorie was sett him to appear at the barre before the Lords. On which daye he came into the utter roomes, and the Lords beinge readye for the hearing the gentleman usher was commaunded to bring him before them. And accordingly the gentleman usher brought him, but his Lordship had not the staffe of his Office in his hande as Lord Treasurer. When he came to the barre he kneeled, untill the Lord Keeper wylled him to stande up. [fol. 125] Then the Kings Councell opened one of the charges against him touchinge the Warderoabe, and caused the clerke to reade the proofes and the examinacions of wyttnesses etc. Unto 1

21 R.2: n. 7 (ibid., 378-79).

2

21 R.2: n. 13 (ibid., 384-85).

Appendix: The Aumwere which the Lord Treasurer made his aunswere, and that charge beinge herde & discussed at full, the Lord Treasurer was withdrawen, and brought to the barre agayne another tyme in lyke manner, & soe from tyme to tyme untill all his charges were fully herde & discussed in the same manner. Then the Lords debated amongest themselves the offences & the proofes; & having concluded the Lord Treasurer guiltye uppon the Question, they debated allso what Censure to passe uppon him, which beinge allso agreed on by the Question, they sente the gentleman usher and Sergeant at Armes to summon him to appeare before them at a tyme appoynted & sente the Commons worde they were ready to gyve Judgement against the Lord Treasurer, yff they woulde come with their Speaker and demaunde the same. And the Lords beinge in their roabes [fol. i25v] and the Commons come with their Speaker, the Lord Treasurer was brought to the barre by the [blank] and the Speaker havinge demaunded Judgement against his Lordship, the same was pronounced by the Lord Keeper.' This is the effecte of the longe processe against the Erie of Middlesex. Yt varries in some materiall points touchinge the right of the Commons from Antiquitie. And in somethinge touchinge the partie accused.2 Yt varryeth from Antiquitye touchinge the Commons in this, that the Commons accused him of ymposicions uppon frenche wynes, & the Lords never charged him with yt. And in this, that the Lords myngled other accusacions with those of the

Commons, which shoulde have ben proceeded on aparte by them

selves. [fol. 126] And 3 in this, that the Commons neither demaunded, nor the Lords sente the Commons a copye of his aunswere, which ought to have ben done on bothe sydes, howe ells coulde the Commons demaunde Judgement. But of this in his place. I wyll only noate here, that the Lord Treasurer beinge accused of missdemeanors only, was not restreyned of his libertye before Judgement, which agrees with all antiquities. Some have doubted

whether he should have appeared at the barre as a delinquent before Judgement was prayed against him./. And my opynion is (leavinge others free to their owne better Judgements) that, as touchinge the missdemeanors wherof the Com1

2

LJ, m, 299-301, 307-11, 318-19, 320-21, 337-38, 344-45, 349, 351-52, 364, 365, 366-67, 367-70, 373-83-

but in nothinge touchinge the delinquent in point of his aunswere save in that he was denyed counsell: and aunswered at the barre, crossed out and corrected. 3 This passage, here indented, has been crossed through in the manuscript.

113

114

Judicature in Parlement mittee for Municions etc. reported him a delinquent, and unto which he aunswered first in his place, & with which Aunswere the Lords were not satisfyed, but appoynted another committee to take examinacions of wittnesses therin: he ought (uppon the reporte [fbl. i26v] of that Committee what they founde proved against him, to have receaved his charge of those faultes at the barre, and to aunswere the same at the barre as a delinquent. But as touchinge the vi poynts wherof he was accused by the Commons, he ought not (beinge a Peere of parlement) to aunswere as a delinquent, nor to come to the Barre untill the Lords have agreed uppon the Question that he is to be censured. For the Parlement hathe ben ever tender of a reputacion of a Lorde unless he be charged with treason, or any other Capitall offence, & then he is to be a prisoner uppon the accusacion, Per Legem terrae.1 Neither doe I conceave that the Lords Committees takinge noatice of any other misdemeanours then was complayned of by the Commons (except those that the Committee for Municions reported) was any Legall accusacion against the sayd Erie of Middlesex, vide statutum anno 25.£.3. cap. 4.2

terrae, crossed off or blotterrae, crossed off or blotted. 2 25 £.3, st. 5, c. 4 (Sta

Index of Precedents (Peers are indexed by their titles, bishops by their proper names)

CASES

Arundel, Richard FitzAlan, earl of Arundel and Surrey (21 R.2) accusation in 51, 81 answer in 73 execution of judgment in 106 judgment in 98 Arundel, Thomas, archbishop of Canterbury (2IR.2)

accusation and judgment in 21 tried in parliament 9 Arundel, Thomas Howard, second earl of (2 Car.i), xi Bardolf, Thomas, fifth baron (7 H-4) accusation in 25,37-38 bishops absent from 91-92 Commons' involvement in 93 evidence in 72 judgment in 99 proclamations issued in 54, 91-92, 93, 111 Bayon, Bogo de (4 £.3) 27,80 Beauchamp, Sir John (u R.2) 51 Belknap (Bealknap), Sir Robert de, chief justice of Common Pleas (i i R.2) 50-51 Bennett, Sir John (18 Jac. i) accusation in 24 answer in 59 Bereford (Bureford), Simon de (4 £.3) accusation in 2 7 bishops absent from 87 execution of judgment in 106 judgment in 80, 85, 98 jurisdiction of parliament over 7-8 Berkeley, Thomas de, second baron (4 £.3) 29-30, 57 Berners, Sir James (n R.2) accusation in 51 judgment in 82 Brember, Sir Nicholas (Michael) (i i R.2)

accusation in 49 defense by battle denied in 50, 73 Bristol, John Digby, first earl of (i Car.i) xiii, 32-34, 104-105 accusation in 25,32-33 counsel allowed in 60-61 king's testimony in xiv, 75 prisoner brought to House in 57, 108 witnesses in 104-105 Buckingham, George Villiers, duke of (i Car.i) xiii accusation in 25,68 answer in 58, 62 replication in 68 Burle, Sir Simon de (i i and 21 R.2) accusation in 51 judgment in 81-84,97,98 Bury, Adam de (50 £.3) accusation in 18-19 answer in 58 Cambridge, mayor and bailiffs of (5 R.z) accusation in 44 answer in 58-59, 62 replication in 69 Gary, Sir John, chief baron of the Exchequer ( I I R.2) 5I

Cavendish, John, fishmonger (7 R.2) 44-46 bishops present at 87 Commons present at 95 judgment in 100-101,102,109 referred to commission 46-47 sureties required in 58 Clarence, George Plantagenet, duke of (18 £.4) accusation in 36,73 Commons' request concerning 10, 92 king's testimony in xiv, 74-75 Cobham, John de, third baron (21 R.2), 82, 83 accusation in 21 king's testimony in 74, 75 Cogan, Sir William (Richard) (5 R.2)

u6


accusation in 44

accusation in 14, 26, 40, 68

counsel denied in 60 referred to common law 31, 103

answer in 37, 57, 68 arraignment in 30, 104 bishops absent from 88

Cressingham, Pierres de (7 R.2) 35 Despenser, Henry, bishop of Norwich (i R.z) 68-69

Despenser, Henry, bishop of Norwich (7 R.2) accusation in 14, 15, 26, 41 answer in 58, 62 judgment in 85

tried in parliament 9, 35

Despenser (Spencer), Hugh le, the elder. See Winchester

Despenser (Spencer), Hugh le, the younger (I 5 E.2)

accusation in 12, 28

error in 12, 28, 53

judgment in 91 role of bishops in 8

Despenser, Thomas, lord (2 H-4) 32

Commons' involvement in 68, 93

conference between the Houses on 94 imprisonment in 101 judgment in 98 Mompesson's case compared with 41 replication in 68 tried in parliament 35 witnesses in 71, 73 Gurney, Thomas de (4 £.3) 27,80 Harsnett, Samuel, bishop of Norwich (21 Jac. i) accusation in 24-25 answer in 25, 58 Haxey, Thomas (20 R.2) 93,104 Huntingdon, John Holand (Holland), earl of (2 H.

Dudley, John, lord (29 H.6) 14

Ireland, Robert de Vere, duke of (i i R.2) 49-50, 55

Ellis, William (50 £.3)

Kempe, John, bishop of London (29 H.6) 14

Deverell (Deveroill), John (4 £.3) 27, 80 accusation in 13, 17, 23, 43-44, 66

answer in 58 Commons' petition concerning 94

damages to Botild and Cowper in 102, 108 judgment in 84, 100 referred to common law 103 replication in 66 witnesses in 70-71 Elmham (Ellynham), Sir William (7 R.2) 35

Eerrers, Sir Henry de (7 R.2) 35 Ferrers, Sir Ralph (4 R.2) accusation in 2 5 answer in 57 arraignment in 30-31 counsel denied in 60 jurisdiction of parliament in 31

Field, Theophilus, bishop of Llandaff (iSJac.i 77 Fitzhugh, William (i R.2) execution of judgment in 107 judgment in 101 Floyd, Edward (i8 Jac.i) 107

Gloucester, Thomas of Woodstock, duke of (2 I R.2)

accusation in 51, 81 answer in 54-55,112 Gomeniz, John de (i R.2)

Kent, Edmund of Woodstock, earl of (4 £.3) accusation in 26

bishops absent from 87 judgment in 97-98

judgment repealed 26 Kent, Thomas Holland, earl of (2 H-4)

32, 99

Latimer, William, fourth baron (50 £.3) accusation in 13,17,18,19,65 answer in 58,65-66

Commons' petition concerning 94 evidence in 71

execution of judgment in 107 judgment in 84, 100 replication in 66

tried in parliament 35 Lee, Sir John, steward of the king's household (42 £.3) accusations in 42-43 witnesses in 70

bishops present at 87 judgment in 100,101,107

Mompesson's case compared with 41

restitution made to Latimer in 102 Leicester, John de (50 £.3) 20 Lumley, Ralph (2 H-4) 32 Lyons, Richard (50 £.3)

accusation in 13, 16-17, 18, 19, 23,64 answer in 58, 64

117

Index of Precedents complaints in 71 judgment in 84, 100, 101 king's testimony in 74 replication in 64-65 Maltravers (Matravers), John, baron (4 £.3) bishops absent from 87 judgment in 27, 80, 83, 98 petition concerning (21 £.3) 53 March, Roger Mortimer, earl of (4 £.3) accusation in 2 3 , 2 5 , 2 7 , 3 0 bishops absent from 87, 89 common fame in 23, 28, 76 execution of judgment in 106 judgment in 78, 80, 85, 98-99 judgment repealed 23, 27-28, 53, in king's testimony in 76 Michell, Sir £rancis (iBjac.i) accusation in 23-24 answer in 59 Middlesex, Lionel Cranfield, earl of (21 Jac. i) xii-xiii, 112-114 accusation in 24, 41 answer in 59, 60 errors in procedure in xiii, xiv, 41, 59, 113-114 execution of judgment in 108 judgment in xiv, 19 Lords' order concerning counsel in 60,6 r Mompesson, Sir Giles (i%Jac. i) accusation in 23-24 errors in procedure in xiii, 40-41, 56 judgment in xiv, 19 witnesses in 76-77 Mortimer, Sir John (2 H.6) 34-35, 38 accusation in 25,31-32,38 answer in 56, 111 application of, to Bristol's case 34-35 judgment in 20 Mortimer, Sir Thomas (21 R.2), 41, 53-54 accusation in 21,81 Neile, Richard, bishop of Lincoln (i 2 Jac. 1)14 Neville, Alexander, archbishop of York (i i R.2) accusation in 49-50, 55 tried in parliament 9 Neville of Raby, John, lord (50 £.3) accusationin 13,17,66-67 answer in 58 Commons' interest in proceedings in 94 judgment in 84, 100, 102 Love testifies in 67, 71, 73, 94 replication in 67-68 tried in parliament 35 Northumberland, Henry Percy, earl of (5 H-4)

xm-xiv accusationin 25,36-37 as precedent for Bristol's case 33 bishops absent from 91 Commons' participation in 93 king's presence in 86 lord chancellor delivers Lords' opinion in 104 petition delivered to judges 37,96 Northumberland, Henry Percy, earl of (7 H-4) accusationin 25,37-38 bishops absent from 91-92 Commons' participation in 93 evidence in 72 judgment in 78,81,99 king present at 86 proclamations issued in 41, 54, 111 Nottingham, Thomas Mowbray, earl of, earl marshal (7 H_4) 38 Ocle, William de (4 £.3) 27,80 Peach (Pecchee, Pechee), John (50 £.3) accusationin 17, 18 answer in 58 judgment in 84, 100, 102 witnesses in 71 Perrers, Alice (50 £.3) 18, 20 judgment in 99 Perrers, Alice (i R.2) accusation in 14, 26, 40 answer in 37 bishops present at 87 execution of judgment in 108-109 judgment in 99,102 jury in 8, 72 Mompesson's case compared with 41 witnesses in 7 2 Plesington, Robert (21 R.2) 56, 112 Rushook, Thomas, bishop of Chichester (i i R.2) 9 St. Albans, Francis Bacon, lord Verulam, viscount (iSJac. i) xii accusation in 24 witnesses in 76-77 Salisbury, John de Montagu (Montacute), earl of (2H.4) 32,79-80,90,99 Salisbury, Sir John (n R.2) 51 Scrope, Richard le, archbishop of York (7 H-4) 38 Somerset, Edmund Beaufort, second duke of (29 H.6) 14 Spencer. See Despenser Sponer, Wauter (50 £.3) 20 Spykeworth, John de (7 R.2) 35

n8


Stanley, Thomas, second baron (38 H.6) 14 Stratford, John, archbishop of Canterbury (15 and 17 £.3) 9 Suffolk, Alice, duchess of (29 H.6) 14 Suffolk, Michael de la Pole, earl of, lord chancellor (7 R - 2 ) 44-45.45-47 answer in 58,95 Suffolk, Michael de la Pole, earl of, lord chancellor (IOR.2)

accusation in 20, 23, 48 answer in 58,61-62 bail required in 58 Commons' involvement in 68, 94 judgment in 85,95 king's presence at 86 Suffolk, Michael de la Pole, earl of, lord chancellor (uR.2) 49-50,55 Suffolk, William de la Pole, first duke of (28 H.6) accusation in 21-23 answer in 57, 60 judgment in 101 Talbot (Tallbott), Sir Thomas (17 R.2) 57 Thornborough, John, bishop of Bristol (ijac.i) accusation in 14 answer in 58 Thorpe, Thomas (31 H.6) 7 Tresilian, Sir Robert, chief justice of King's Bench (uR.2) 49-50 Trevet (Trivett), Sir Thomas (7 R.2) 35 Warwick, Thomas de Beauchamp, earl of (21 R.2) accusation in 51,81 execution of judgment in 106-107

Weston, William (i R.2) accusation in 14, 26, 40, 68 answerin 37,57,68 arraignment in 30,104 bishops absent from 88 Commons' involvement in 68, 93 conference between the Houses on 94 imprisonment in 101 judgment in 82-83,98 Mompesson's case compared with 41 replication in 68 tried in parliament 35 Winchester, Hugh le Despenser, the elder, earl of (5E.2) I accusation in 12, 28 error in 12, 28, 53 judgment in 91 role of bishops in 8 York, Richard Plantagenet, duke of (38 H.6) 14

STATUTES

Magna Carta, £-.29 57 i £.3, r.2 91 i 5 E.3,c.4 84 25 £.3, st-5, c.2 96 25 £.3, st-5, c-4 114 37E.3,c.i8 44 21 R.2,c.i2 95,97 i H-4, c.i4 12, 52 35 H.8,c.2 34-36 in Bristol's case 33, 34

119

General Index (Peers are indexed by their tides, bishops by their proper names)

Accusation 12-52 by accident 47 by appeal 21,48-52,55-56 by common fame 2 3 by Commons 12 - 2 5; by general demand 12-13, 14-15; by impeachment 12-13, 15-25; by petition 12-13 by order of the king 36-39 by order of the Lords 39-41 by private persons 42-48; in House of Commons against a lord 47 on behalf of the king 13-14,25-39 Answer of the accused 53-63,111-114 as freeman or prisoner 57-59 with or without counsel 59-63 Appeal. See also Lords Appellant accusation by 21, 48-52, 55-56; (10 and n R.2), 9, 48-50, 99; (21 R.2), 9, 53-55, 99, 104 Arraignment 30-31, 104 Arundel, Richard FitzAlan, earl of Arundel and Surrey (d. 1397). See also separate index of precedents accused of treason 48-49 as Lord Appellant (10 and 11 R.a) 48-50 in Burle's case (i i and 21 R.2) 81,97 to examine witnesses in Ferrers' case (i R.2) 72 Attorney-general, presents accusation on behalf of king 36 Battle, trial by 51, 73 denied 50 Belknap (Bealknap), Sir Robert de, chief justice of Common Pleas. See also separate index of precedents on commission for Cavendish's case (7 R.2) 46 Berkshire, Francis Norris, earl of, imprisoned (18 Jac.i) 107 Bishops presence of, at judicial proceedings 79-80, 87-92; protestation concerning (i i R.2) 88-89, 9° privileges of 9 trial of 8-9

Botild, John, complaints by 43-44 damages awarded 108 Bowser (Boucher), Sir John, complaint by 48 Bowyer, Robert, clerk of the parliaments, parliamentary collections of xii Bowyer, William, parliamentary collections of xii Brenchley, William, judge, legal opinions of 96 Bristol, John Digby, first earl of (d.1653). See also separate index of precedents accuses Buckingham and Conway 32-33 sued in Star Chamber 61 Buxhull, Alayne de, constable of the Tower 107 Cambridge, Edward of York, earl of, to examine witnesses in Perrers' case (i R.2) 72 Cases. See separate index of precedents Chancellor, lord, presides at trial for misdemeanors 8 Chancery, in certification of fines 109, no Chancery, masters of, as assistants in the upper House 96 Charles I, king of England as prince, testimony of 75 charges Bristol with treason 32-33 forbids judges to rule in Bristol's case 76 position of, on use of counsel 60-61 Cheriton, Wauter de 13 Chivalry, court of xiv, 25,38 Clergy, presence of, at assizes and sessions 89 Clerk of the parliaments certifies fines to Chancery no errors of 20 nature of record of 19, 30, 32, 39, 70, 83, 95 Cliveden, Richard, complaint by 31, 44, 60 Clopton, Walter de, chief justice of King's Bench, legal opinions of 96 Commoners, jurisdiction of upper House over 39 Common law, cases referred to 9, 31, 103 Commons, House of accusation by 12-25; by general demand I 2 ~ r 3 >

120


14-15; by impeachment 12-13, J 5- 2 5;by petition 12-13; Commons' role in trial on 9-10 at conferences with upper House 93-94 members of, as witnesses in upper House 77 presence of members of 72-73, 92-95; at answer 64, 68, 92; at arraignment of peer 30; at examinations 54; at judgment 31,54,68, 92; at trial of peers 36 protestation of, concerning judgment 78 protests use of king's testimony 75 replication by 64-68 Conference between the Houses procedure in 93-94 unrecorded 32, 39 Conway, Edward, secretary of state, baron, later viscount, accused by Bristol 32-33 Cotton, Sir Robert, library of 75 Counsel xiii, 59-63 in Middlesex's case 112, 113n Lords' order concerning (21 Jac. i), 60-61 Coventry, Sir Thomas, lord keeper (d.i64o) affirms procedure for certifying fines no in Bristol's case 32, 34 Cowper, William, complaint by 43-44 damages awarded 108 Crewe, Sir Ranulphe, chief justice of Ring's Bench (d.i646) 76 Crown, clerk of the in Chancery, assists in upper House 30, 36 in King's Bench, assists in upper House 34 Damages, recovery of 102, 108-109 Danby, Henry Danvers, earl of (d. 1644) xiv Dargentyne, Sir Geffrey, in Gomeniz's case (iR.2) 71,73 Denham, Sir John, baron of Exchequer, affirms procedure for certifying fines 109-no Derby, Henry of Bolingbroke, styled earl of, from 1377, later King Henry IV accused of treason 48-49 as Lord Appellant (10 and 11 R.2) 48-50 Derby, John of Gaunt, earl of. See Lancaster Despenser, Thomas, lord (d.i4Oo). See also separate index of precedents brings in accusation by appeal (21 R.2) 51 Earl marshal, in execution of judgment 106-107 Edward II, king of England, murder of 7, 29, 57, 73 Edward III, king of England 84-85 Edward IV, king of England 74-75 Elsyng, Henry, clerk of the parliaments 3 2 errors of, 27-29

knowledge of parliament xii reads parliament roll in the House 33 record of parliament 19 writings of xi, xiw, xii, xv, 20. See also Judicature in parlement Exchequer, court of, in levying of fines 109 Execution of judgment 106- n o Exton, Nicholas, fishmonger 47 Fame, common accusation by 23 in March's case (4 £.3), 23, 28, 76 Fines 99-101 assessment of, in other courts 101 order for mitigation of 101 procedure for levying 109-no Fishmonger(s). See also Cavendish, John in separate index of precedents complaints concerning 47 Forfeitures 98-99 Fulthorp, Robert de, judge of Common Pleas, on commission for Cavendish's case (7 R.2) 46 Gentleman usher, in execution of judgment 107-108 Gloucester, Thomas of Woodstock, duke of (d. 1397). See also separate index of precedents accused of treason 48-49, 56 as Lord Appellant 48-50 complains against Talbot (17 R.2) 57 in Burle's case (i i and 21 R.2) 81, 83, 97 Hankford, William, judge of Common Pleas, legal opinions of 96 Heath, Sir Robert, attorney-general, in Bristol's case(i Car.i), 32-33, 34,75 Huntingdon, John Holand (Holland), earl of. See also separate index of precedents brings in accusation by appeal (21 R.2) 51 Impeachment accusation by 12-13, J 5~ 2 5 necessity of 40 Imprisonment 101-102 for misdemeanors 107 in Fleet 102 in Tower of London i o i Ingulph's Chronicle 74-75, 75« Judges advice of: in Bristol's case (i Car. i), xiv, 33, 75-76; on judgment against Suffolk (i i R.2), 85, 95; on parliamentary proceedings 95-97; on procedure in appeal 49-50, 55

General Index consult Elsyng xiv, 75 draw up judgments 19 present at judicial proceedings in parliament 95-97 Judgment 78-105 bishops' presence at 79-80, 87-92 by whom to be demanded 103 by whom to be given 78-80

by whom to be pronounced 103-105 Commons' presence at 31, 54, 68, 92 execution of 106-11 o for satisfaction of parties wronged 102-103; execution of 108-109 in accordance with law of land 97-102 judges' presence at 95-97 king's assent to 80-85 king's presence at 85-86, 97 resolution of 97 Judicature in parlement xv, 5 authorship of xii edition of xiii-xiv manuscript of xii significance of xiii, xiv

Jurisdiction of parliament 7-11, 31, 34-35 Jury 72 Commons in place of 10 in Berkeley's case (4 £.3) 73 in Ferrers' case (i R.2), 8, 72 in trial of bishops 9

Kent, Edmund of Woodstock, earl of (d. 13 30) 7. See also separate index of precedents Kent, Thomas Holland, earl of (d. 1400). See also separate index of precedents brings in accusation by appeal (21 R.2) 51 King of England assent of, to judgment 80-85 presence of, in judicature 85-86,97 testimony of xiv, 74-76 Lancaster, John of Gaunt, duke of, and earl of Derby (d. 1399) arrests Ferrers 31 complains against Talbot (17 R. 2) 57 to examine witnesses in Ferrers' case (i R.2) 72 Larimer, William, fourth baron (d. 1381). See also separate index of precedents

accuses Lee (42 £.3) 42-43

Levayne, Nicholas 42 Levenham, Hugh 42 Lords Appellant. See also Appeal (10 and 11 R.2) 48-50; bishops accused by 9; charges against 85; inBurle's case 81-82,

83-84; offer proofs and ask judgment 55-56

121

(21 R.2) 53-55; challenge Arundel 73; Commons' petition against 14; king present at answer of 86 Love, Raynald, testimony of, in Neville's case (50 £.3) 67,71,73,94 March, Edmund Mortimer, earl of (d. 1381), to examine witnesses in Ferrers' case (i R.2) 72 Middlesex, Lionel Cranfield, earl of (d. 1645). See also separate index of precedents affirms procedure for levying fines to the king 109-110

More, John, mercer 47 Nottingham, Thomas de Mowbray, earl of, earl marshal ^.1399)

accused of treason 48-49 as Lord Appellant 48-50

brings in accusation by appeal (21 R.2) 51 Ottrey, John, servant of lord chancellor, Cavendish's complaint against (7 R.2), 45-47 Pardon, king's, for traitors 98 Parliament judicial powers of 7-11, 31, 34-35 power of 57 Parliament House rooms in 85-86, 92 Peer(s) arraignment of 30 indictment of 28-29, 34~3^ to be juded by customs of parliament 29 trial of 36, 96 Percy, Sir Henry (Hotspur) ^.1403) 36

Percy, Thomas de, proctor of the clergy (21 R.2) 90

Phillips, Thomas, complains against bishop of London (25 H.8) 47-48 Precedents. See also separate index of precedents

Lords rely on clerks' knowledge of, xii, xiii Privilege for lords' servants, punishment for breach of (rt}ac.i) 108 of bishops 9

of peerage, waived by Lord Berkeley (4 £.3) 73 parliament's jurisdiction in breach of 11 Proof 70-77. See also Witness(es) Proxies, for absent lords 84, 96 Ravensholme, Lady, in Neville's case (50 £.3), 67 Replication 64-69 Restitution 102, 108-109

Richard II, king of England 48-50, 74

122 Judicature in Parlement

in Burle's case (i i R.2) 81-84 in Weston's case (i R.2) 83 Rickhill, Sir William, judge of Common Pleas certifies Gloucester's confession 54-55 legal opinions of 96 Rutland, Edward of York, earl of (d. 1415), brings in accusation by appeal (21 R.2) 51 Salisbury, John de Montagu (Montacute), earl of (d.i4Oo). See also separate index of precedents brings in accusation by appeal (21 R.2) 51 Salisbury, Thomas Montagu (Montacute), earl of (d.i428), petition of (2 H.5) 79, 90 Scrope (Scroop), Emanuel de, baron Scrope of Bolton, later earl of Sunderland, pushed in House 108 Scrope (Scroop), Richard le, first baron Scrope of Bolton, steward of the household ^.1403) in Gomeniz's and Weston's case (i R.2) 30 in Ferrers' case (i R.2) 40

Steward, lord high presides at trial of peers 8, 36 replication by 68 Stokesley, John, bishop of London, complaint against (2 5 H.8) 47-48 Suffolk, Michael de la Pole, earl of, lord chancellor (d.i 389). See also separate index of precedents testifies in Neville's case (50 £.3) 67 Thirning, William, chief justice of Common Pleas, legal opinions of 96 Tresilian, Sir Robert, chief justice of King's Bench (d. 1388). See also separate index of precedents king consults (i i R.2) 48, 85, 95 legal opinions of 95-96 on commission for Cavendish's case (7 R.2) 46 Tyrwhitt, Thomas, clerk of the House of Commons xi, xii

Walworth, William, in Larimer's case (50 £.3) 70 Warwick, Thomas de Beauchamp, earl of (d. 1401). brings in accusation by appeal (21 R.2) 51 See also separate index of precedents Selden, John accused of treason 48-49 treatise ascribed to xi as Lord Appellant 48-50 writes judgment against Mompesson xiv, 19 in Burle's case (i i and 21 R.2) 81, 97 Sergeant-at-arms attending on the Great Seal, in to examine witnesses in Ferrers' case (i R.2) 72 execution of judgment 108 Wesenham, John de 13 Sergeants-at-law, king seeks advice of (2 H-5) 79 Williams, John, bishop of Lincoln, complaint Sibill, Walter, fishmonger 47 against (i8 Jac.i) 48 Skelton, Sir Thomas of 96 Witness(es) Somerset, John Beaufort, earl of (d.i4io), brings examination of: Commons' presence at 73, 94; in accusation by appeal (21 R.2) 51 current procedure for 70; earlier procedure for Speed, John, chronicle of 37, 85 70-72 Spencer. See Despenser in Ellis' case (50 £.3) 66 Spiritual lords. See Bishops in Neville's case (50 £.3) 67, 71, 73, 94 Star Chamber, court of in Plesington's case (21 R.2) 56 Bristol sued in (i Car. i) 61 swearing of 70, 72, 73, 77 certifies fines 109-11 o Women, ordinance concerning 18,99 Wyngeld, William de, in Neville's case (50 £.3) Statutes. See also separate index of precedents 67 "of false suggestions," 103

Scrope, William le, lord chamberlain ^.1399),

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