House of Commons Journal Volume 1: 28 May 1607 (2nd scribe)

Journal of the House of Commons: Volume 1, 1547-1629. Originally published by His Majesty's Stationery Office, London, 1802.

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In this section

Jovis, 28o die Maii, 1607

Call of the House.

SIR Geo. Moore reporteth -

That Opinion of the Committees for Privileges, that first the House should be called : - Thursday next appointed for Calling of the House: Then a Bill be framed : - The Bill in the House: Then Search made, whether the Fines estreated.

Attendance of Members.

2. Reading: - B. For better Attendance in the Commons House of Parliament: Committed to the Committee for Privileges, with these added : Sir Tho. Lowe, Sir Rob. Oxenbridge, Sir Roger Wilbram, Sir Chro. Perkins, Sir Wm. Harvye, Sir Wm. Burlacy, Sir Tho. Horsman, Mr. James of Bristowe, Sir Antho. Cope, Mr. Nanton, Sir Dan. Dun, Mr. Duncombe, Sir Walter Cope, Sir Edm. Bowyer, Sir Oliver Cromwell, Mr. Hare, Sir Tho. Mounson, Sir Tho. Lake, Mr. Holt, Sir Edw. Grevill, Mr. Brook, Sir John Savill, Mr. Serjeant Barker, Sir Henry Poole: - Saturday, in the Exchequer Chamber.

Committees.

Committee for Spanish Wrongs, to meet To-morrow.

Mariners: - Monday Afternoon, Temple.

Logwood : - The same Day, and Place.

Tuesday - Inmates: - Temple Hall. - Three Bills.

Sir Wm. Selby: - Saturday, Exchequer Chamber.

Union with Scotland.

Sir Francis Bacon reporteth from the Committee for hostile Laws ; not the Bill, but a Question. -

The Bill very near finished : In sight of Land, but now anchored. -

Partly in Matter, partly in Form. -

1. The Question. 2. Then the Arguments. 3. Then the Motions. -

Three Things accorded : 1. That England and Scotland should not serve as Sanctuaries for Malefactors either of other. - Latrocinia grassantia -

2. If the Offender be apprehended, where the Fact is done, then sub manibus; there to be punished.

3. A Crime committed by a Scottishman in Scotland, and coming into England -

The true Question, if an Englishman, in Scotland, return and be apprehended here, whether to be remanded. - Arguments for remanding. -

Seven Reasons :

1. A Rule in State, if any Alteration, as great Conformity to that which was. - March Law was: By March Law, when convicted, remanded to the Warden. -

Difference : If the Trial by Assisors, Six English, Six Scottish ; if by Wowrie, One English Witness.

2. Congruity with the Law of Nations. - Several Territories, - Picardie and Artois, adjacent, Time and Necessity have taught. - If but upon Confederacy, much more, where One Fountain of Justice.

3. Trial, in common Probability, severe, perhaps rigorous, in Scotland remiss. - In Extremes, one worse: -

Philosophy. - Remissness worse. Nulla remedia priora, quam quae salutaria.

Their Injuries greater, because the Borders of the Scottish stronger. Severity better than Lenity: Advantage to the English.

4. Impunity, by a new Trial, when the Judge comes but once a Year.

5. Divorce of the Justice from the Example, if the Execution shall not be where the Fact is.

6. Matter of Form. Contra dignitatem et coronam nostrum, a material Form. Then admit One Crown.

7. Not Seven, since his Majesty's Time, remanded. If this have been so moderately in this Time, then rather in Fear than Fruit; rather in intellectu, than sensu. -

Five Reasons against the Remanding.

The Land is liable to Justice, where the Fact. -

True, where there is Equality. Great Severity there; great Lenity.

Six Differences in the Laws: 1. In Case of Life, a double Jury: Indictors. -

Scotl. In Scotland not so: - Begin at first with a Jury of Trial.

2. Engl. Trial, an uniform Consent of all. Scotl. a casting Voice.

3. Engl. Witnesses viva voce: A great Light. Scotl. Evidence delivered to the Jury. - Not bring the Prosecutor : Not tied to it: He may do it. Difference in Use, not in Law.

4. Peremptory Challenge. If he mislike the Countenance, if he have any secret Information. 36 by Stat. to 30. Not so in Scotland.

5. Clergy in England. In Scotland not so.

6. England not proceed with Accessory before the Principal, lest justly -

In Scotland they may. -

Great Favour in Scottish Laws. He may have a Friend an Advocate : Any Man may offer himself. -

You may except to the Judge there; not so here. -

Therefore, because the Severity more with them, no remanding. -

2. Reason, more general. -

Praestat nocentem absolvi, quam innocentem damnari. More favourable Extreme. - Make the Law the Instrument ot his Malice.

3. Reason of State. Let the Justice be never so clear, it will never be so conceived, if it be not seen. - A great Heart-burning.

4. If we were sure, that innocent Men should never be questioned. -

A Receiver, though never in Scotland, may be called in question. Oaths too common: A Kind of Trial by the Oath of the Party.

5. Retorting the Reason of Example. - Example much fitter, whence the Offender comes. - Motions made in this Cause.

1. If flagranti crimine, upon fresh Suit; then as still in Scotland or England.

2. Some Inquisition in Nature of an Indictment. - Not upon sinister Information, then confident.

3. If not by Jurors, then by Magistrates, if ambiguous or clear, accordingly.

4. Shall a Man at London be sent into Scotland? If remanding stand, restrained to Three Counties.

5. If a Trial in Scotland, then half of English : Medietas nationis.

6. His Majesty communis parens patriae. - Petitioners to him for a Cessation.

7. To pray a Conference with the Lords, because they best understand. -

Question of Form; Whether in this Bill, or in a Bill alone. -

This other Question of Difficulty, whether it would hold Way with the other. -

Difference between a dead Law, and a living Subject. Not natural -

Wished them the Wisdom to number their Days.

Sir Roger Owen: - Request, whether, by the Law standing, these Commissions for remanding; and whether they may be remanded. -

He held they could not, by the Canon Law, Civil Law.

Mr. Speaker cleareth the Question. - Not, whether the Law be so now; for that doth too much touch the King in Honour : That to be forborn.

Sir Dan. Dun: - That the Remanding should be continued. -

1. Satisfaction made to that Commonwealth, where the Fact is done.

2. Twofold Reason: Example; tanquam medela, et medicina. - That it should be in an Act by itself. -

Settlement on the Queen.

Sir John Crook and Mr. D. Hone bring from the Lords a Bill, intituled, An Act for the Assurance of the House of Theobalds, and divers Manors, and other Lands, to the Queen's most excellent Majesty, for Term of her Life, and of the same House, Manors, and Lands, with other Manors and Lands, to the Kings Highness, his Heirs and Successors; and for the Assurance of other Manors and Lands to the Earl of Salisbury, and his Heirs. -

Union with Scotland.

Mr. Martin: - That there should be no remanding. -

Two Reasons : Felony in Scotland, which is none here:

Example: - Most Terror where the Offence is. -

Some short Bill, touching the Offenders.

Mr. Pembridge, against remanding upon cold Blood. - Experience in his Country. - Wales.

Sir Edw. Grevill, - for remanding. -

Mr. Hackwell : - Only a Defect in the Law.

Mr. Attorney, touching the Question. -

That a Remedy may be provided before the Question of remanding.

Sir Henry Poole: - Howsoever a Question of remanding.

Mr. Recorder: Both together.

Mr. Parkinson: - That the Commisson may be first viewed, before we repeal.

Sir Henry Wytherington: - Mischief, if no Question.

Sir John Savill: - No Remedy by a Question.

Sir Edwyn Sandys: - The Question mistaken; for now but a Direction to the Committee : A Bill committed, and this a Question incident.

The Committee to take into Consideration a Course of Provision.

Whether by remanding -

Mr. Speaker: - Quest. Whether added to this Bill of hostile Laws: - Resolved, It shall.

Whether the Committees shall consider of a Course of Justice upon the Borders, without remanding: - Resolved.