Saturday, April 15.
[The House attended the Conference.]
Serjeant Maynard's Arguments in Skinner's Cafe,
at a Conference with the Lords, by an Order of
April 15, 1671, entered into the Journal of the
House of Commons
(fn. 1) .
My Lords, My task is to give your Lordships the
reasons on which the House of Commons have grounded
their first vote, touching the complaint made before you,
concerning the trespass in seizing of the goods of Mr
Skinner, and the assault made on his person; the vouching of precedents is committed to another hand, and
therefore I shall meddle little with them, but shall chiefly
insist on Acts of Parliament, and Common Law. I come
before your Lordships with a two-fold confidence; the
first raised from those who have imposed upon me this
service, being the Representatives of the whole Commons of England, the Knights, Citizens, and Burgesses
in Parliament, who all speak by me this day; the reasons are theirs, not mine; the words are mine, for I am
not charged with forms of words, but the reasons and arguments are not mine, but theirs.
Secondly, my confidence is grounded on your Lordships wisdom and justice, which confidence is, that when
reason shall be offered, your Lordships will give it due
regard and reception.
Therefore the reasons I shall leave to your Lordships
judgments, and myself to your favourable construction, if I
err in any expression not suitable to the greatness of the
matter, or your Lordships greatness.
Now to the matter. It hath been already observed to
your Lordships, that this cause is not negatively; to wit,
it comes not before your Lordships as matter of evidence
to the King, nor as matter of favour, but is brought to
you by way of complaint, by one Commoner against
another, as supposing your Lordships to be proper judges,
primâ instantiâ, to hear and determine the cause, as it hath
been summarily, and without such legal tryal as by Law
ought to have been had in such a case. The Common
Law is that which makes your Lordships safe in your
honour and estates, by which Justice is to be administered, and whatever is done without this Law, by way
of judgment, is done against it, and is not according to
Law, which is that vote of which I am to give the
But first, I observe, that in this case your Lordships proceedings therein were against the express consent
of the Defendant, who pleaded to that Jurisdiction, and
therefore doth much differ from those cases, where the
persons insisted not on that Jurisdiction, but gave answer
to complaints before you, possibly sometimes out of a
confidence in their cause, or out of fear, or private prudence, chusing rather to put themselves on your Lordships opinion than displeasure, by excepting to so high a
Court in point of Jurïsdiction.
The grand work of all which I shall farther say is expressed in the vote itself (viz.) that the suit is a common
plea, it concerns not the King in his interest, nor any
crime; for that is a common plea wherein one subject demands against another any real or personal right, for
lands, hereditaments, freehold goods, or chattels, or satisfaction for injuries. And "a common person" in this
matter is every person under the King, noble or ignoble,
wherein the Commons observe the amplitude and vast
extent of this question, both for persons and things; for
there is no person, how great soever, who is a subject,
but is concerned in all and every thing he hath and can
claim; and it extends to ecclesiastical as well as secular jurisdictions and interests; for what reason can be to exempt
the one more than the other?
Two things are mentioned in the vote, first, that the
cognizance of the cause, secondly, the proceedings therein, are not according to Law.
The proceeding was summary; it was by English
petition, and without all formality requisite. I speak
now of little formalities, which in several Courts vary,
though the rule of Justice, as to the main, is the same in
the Courts; but of those greater formalities, which are
necessary methods of administering justice, without which
the Plaintiff knows not how to prosecute, nor the Defendant how to make his defence, nor either party to make
This being premised, I say, non recurritur ad extraordinarium remedium nisi deficiente ordinario. The Petitioner
might have had his ordinary remedy in the inferior Courts
as to the ship-goods and assault, and therefore need not,
nor ought, to fly to an unusual and extraordinary remedy. This is a general reason, and is reason and truth.
But, secondly, I come to more particulars. By this
way of proceeding, the subject loses that legal and indifferent way of tryal, which the Law hath provided for
him, by Jurors for his own condition, which is as
much his right, yea his birthright and inheritance, as his
lands are, and without which he is not sure to keep them,
or any thing else. This way of tryal is his sence and protection against all storms of power, and against all frauds
and surprizes, if the institution thereof were duly observed,
as it ought to be; therefore the Commons are careful,
[even] to jealousy, that this their liberty and buckler
be not taken from them; for if we look into the institution of it, nothing can be established with more caution
and care for indifferency, and for finding out the truth;
and we think that we much owe those liberties, which
we enjoy beyond our neighbours (of whom some once
had it, but have lost it) to this way of tryal. True it
is, that herein sometimes miscarriages happen; but the
fault is not in constituting the Law, but in the execution.
Jurors are men, and therefore may, and sometimes will
err, but they err not the more because they are sworn,
and other men err as much as they, and possibly it would
be much better, if the Ministers of Justice, according
to their duty, did return sufficient persons, and that such
persons were more willing to serve on Juries. Every
judgment is established on two things, of which the Judge
must have a care, viz. the verity of the fact, and what
the Law is upon such fact; ex facto jus oritur. Now by
the constitutions of the Law of England, the tryal of the
fact is in one hand, and the determination of the Law by
Judges sworn. The Judge may not try the fact, nor
the Juror the Law, but at their extreme peril; for by the
Common Law, the Jurors, if they give a false verdict,
underwent the villainous judgment, viz. to have their
houses rased, lands wasted, meadows ploughed, woods
felled, body imprisoned, and infamy perpetual, never to
be credited more.
The Law hath singular care for the indifferency, secondly, and for the sufficiency, à neutrâ parte suspecti.
The Sheriff is bound by oath to return such; next, if he
fail, each party hath his challenges (to wit) that such or
such Juror is of kin, interested, engaged by opinion
while unsworn, tenant, &c. If this challenge be denied,
the truth of the challenge must be tryed by persons sworn,
and the Jury serve on their oath, and pawn of their souls,
to the truth.
And after the Jury sworn, if any matter of Law arise
on the evidence, it is ordinarily specially found, and if
the Judge deny a special verdict, and will over-rule the
matter, whoever therein is grieved may require the Judge,
or Judges, to seal him a Bill of exception, which he or they
cannot refuse to do, or if he do, the party grieved hath
remedy against him.
Then after verdict, the Judges, who give judgment,
do it on their oaths, according to their best skill; and
when they have done, if any party think himself
grieved, he hath his remedy, by writ of error, before other
Judges, who act on their oaths likewise.
Again; the persons that try the fact, are persons of
the same rank with the suitors; not too mean, for they
may be open to unhandsome temptations; nor too high,
for great Lords serve not on Juries, not only in regard of
their privileges, but of their grandeur and power, whereby others may be over-awed. The institution is cautious,
and bound together, and carried on, from the beginning
to the end, by the most sacred bonds, to find out truth,
that can possibly be imposed by men.
But by this way of proceeding before your Lordships,
all these advantages are lost; for the tryal of fact and of
Law, the office of the Judge and Juror, are confounded.
There is no challenge, or exception, that can be taken to any
of the Lords, though one or more of them be enemies,
or friends, or allies to either party, or engaged by opinion, or sollicitation, or interest, in the cause, or all these
together, or any other; for though a Juror may be
challenged, a Judge cannot. Again; as the subject
is deprived of his tryal in point of difference, viz. by
persons of his own quality, touching whom he may provide by challenge, that the partial or suspected be removed, so he is hereby put to vast charge, and attendance,
The Law appoints and provides certain terms and stations for doing justice. There are dies juridici, and they
are certain, and the distances between day and day certain
more or less, according to the nature of the demand, and
distances of the place, especially where the demand is real;
by means whereof, the parties, knowing the times of their
attendance, know how to dispose of their affairs, and to
prepare their instructions, evidences, witnesses, and what
is material for their defence.
But here this advantage of ease and assurance is taken
away, and the charge and cost increased, and the times
of attendance more uncertain than in ordinary Courts
Again; in case an error be committed in the proceedings, be the same ever so unjust, whether in fact, or in
Law, and be the consequence of such error ever so
fatal and ruinous to the party, yet he is without all remedy in the way of proceeding. It is possible for the
Court to err, but it is impossible, or next to an impossibility, for the party to be relieved therein on such proceedings, in case error or mistake happen, which will
appear on these considerations:
First, in respect of the Court and Judges; for no address can be made in such case to any other but to the
same persons who did the wrong, with this disadvantage,
that they who were his Judges are concerned, and in some
fort become interested, viz. to judge of their own proceedings, whether good or bad, just or unjust; for in
the first instance, the question was, whether the adversary did wrong; but in the complaint of the error, the
question is, whether the Court did wrong. This is if
the party will complain in the same Parliament.
Secondly, no error can lie properly in the case, because
the proceedings being English and summary, it cannot be
well made to appear in the second instance what the proof
was in the first instance, there being no record kept
Thirdly, put the case that that, which by Law is no
evidence, be allowed for evidence against Law, yet there
is no remedy. As suppose, in this case of Skinner, an
affidavit were admitted for evidence, or should be admitted in another case, what remedy? It were against Law
so to do, for affidavit is most commonly prepared by the
party himself, or his Counsel, and is framed for advantage, telling the story but on one side; and though it
should be true, yet it is not the whole truth (as a witness
is forced to say) but the half truth; for he that swears
to an affidavit, swears it true, but not that it is the whole
truth. The witness, viva voce, is sworn to tell the whole
truth; and besides, the adverse party doth not, nor can,
cross-examine in such case; and when all is done, falshood in an affidavit is not perjury punishable by Law,
and with that severity that a false witness is.
Or put that in this case, the master be fined for the
act of the servant, though the master commanded not
before the Act, nor approved of it after, yet what remedy? It was very hard, and certainly against Law
and reason, if it were so; the difference which Law
and reason make in such a case is where a duty lieth
on the master, and he doth employ another in the
service, the master shall answer for the errors, negligence,
and misfeazance of his servant; for there the Act of the
servant is by his commission and authority, but the master cannot for trespasses or wrongs done in matters out
of his servant's commission; yet if this were the case,
and the chief evidence thereof by affidavit, the party is
without remedy, or so disadvantageous a remedy as before, although in truth he that judgeth against the Law,
doth, as to that present case, make a Law, and, in precedent for the future too, he makes a Law in all others
of that kind.
Again; the way of proceeding summarily by English
Petition, and without tryal by Jury, is against several Statutes and Declarations in Parliament by the Lords themselves. Magna Charta, 9 Henry III. ch. 29. Nullus liber
homo capiatur, &c. aut disseisetur, (that is to say, put out
of his freehold) nisi per judicium parium suorum, vol per
legem terræ. The cause is disjunctive, and it is true that,
in some cases, a man may be put out of his freehold, or be
imprisoned, where he is not tried per judicium parium, as
in case he will not put himself on his tryal, or by impleading, demurring, non-appearance, or the like, but
that is ever by the party's own error, and "per legem terræ,"
in the Statute, may refer to such cases; but it were a
strange construction to say, that, because the Statute saith,
"nisi per legem terræ," therefore in those cases where
the proper and legal tryal is per judicium parium, and may
be pursued and had, "per legem terræ," should make
void the first clause, and render it wholly insignificant.
Next Statute in point is 5 Edw. III. chap. 1. wherein
Magna Charta is confirmed, and in chap. 9. is explained.
"No man from henceforth shall be attached by any accusation, nor forejudged of life or limb, nor his lands, tenements, goods, or chattles seized into the King's hands,
against the form of the great charter and Law of the Land."
—This clearly is a declarative Law, a commentary what is
meant by the former Statute, for else it were a very superfluous Law. As to the 9th chap. Magna Charta was confirmed in express words in the first chapter, and that
which follows hence is, "that if any freeman be attached
by any accusation, it is against Magna Charta, and against
the Law of the Land; or it is against the Law and
Magna Charta that a man should be attached by any accusation." I take a charge by English petition before the
Lords, to be "an accusation" within this Law; this farther
appears by the Statute 25 Edward III. chap. 4. which
enacts "that none be taken by suggestion or petition to
the King, or his Council, unless it be by indictment, or
presentment, or by process made by original writ at the
Common Law;" the petition for this Law is thus, viz.
Que nul franc homme soit mis hors de son franc tenement,
&c. "that no freeman be put out of his freehold, nor any
thing, &c. that toucheth life or member, fine or ransom, per opposals, before the Council of our Lord the
King, nor before any of his Ministers, si non (but) par
proces de loy de ceo en arriere use."
The answer is, "It pleaseth our Lord the King, that the
Laws of this Kingdom be held and kept in their force,
and that no man be bound to answer concerning his
freehold, but by process of Law; but of what concerns
life or member, contempts or excesses, be it done as hath
been formerly used."
Upon this petition and answer thereto, the Law was
drawn up in terminis as above; that which in the petition
was called "the opposals, before the King's Council," is
rendered and translated in the Law by the word "suggestion or petition;" and that which is called "process of
Law" in the petition, and the King's answer thereto, is
rendered or translated "process made by original writ,"
which is a clear exposition and declaration what in those
times was understood by the words "process of Law," viz.
that process of Law was all one, as process upon original
writ, and the other qualification in the answer of the
King, viz. "that in cases of contempt and excess" gives
farther light. For indeed for contempts or excess the
proceedings are by attachment, and for a contempt the
process against a Peer of the Realm is, and always hath
been, by attachment, without judgment of his Peers, as
is plentifully proved by the books of Law.
But the proceedings in contempt are at the suit of the
King, and not of the party, though the contempt or excess
be committed in causes between party and party; and "original writ" is not to be understood in the strictest sense, of
original writs issuing out of Chancery, and framed in the
Register, but of all legal proceedings, whose original is
writ, whether it be by Quo Minus out of the Exchequer
attachments, by writ of Privilege out of the Common
Bench, or the like writs out of other Courts, which are
the proper originals in those cases and Courts, and the
beginning of the suits, and the foundations of the subsequent process. This is a little farther explained by the
Statute of 42 Edward III. chap. 2. and it seems to be
made to take off an objection to the former Laws; to
wit, the former Law speaks of, and refers to original
writ; that is, that none be put to answer without presentment, or thing of record by due process (these words
take in judicial writs) and by original writ, according to
the old Law of the land, 27 Edward III. chap 18. 28
Edward III. chap. 3. My inference is, that none can
be put to answer, but first there must be presentment, or
matter of record, or writ original, taking here "original"
in the sense above-mentioned. And this is the old Law
of the land; but a petition to the Lords in this case was
neither presentment, nor writ original, nor founded on any
matter of record.
4 Hen. IV. chap. 23, recites, "that whereas in pleas,
as well real as personal, after judgments in the King's
Courts, the parties be made to come upon grievous
pain, sometimes before the King himself, sometimes before the King's Council, and sometimes in Parliament,
to answer thereof anew, to the grievance of the parties,
and in subversion to the Common Law of the land; it
is ordained that after judgment in the Courts of our Lord
the King, the parties and their heirs shall be in peace,
untill the judgment be undone by attaint, or by error,
as has been used by the Laws, in the times of the King's
On this Law I observe,
First, Here is the very case of the Parliament, that
where a man had judgment in the King's Courts, yet
men, in such cases, were made to come to Parliament to
Secondly, That such enforcement of men to come to
the Parliament was not only a grievance to the parties,
but a subversion of the Laws, (not one Law, but the
Laws of the land.)
Thirdly, That though the remedy be particular, viz.
"only in case where judgment hath been had," yet it undeniably follows, that the jurisdiction of the Lords House
did not hold in cases where judgment was given in the
King's Courts, but by writ of error, not by petition, and
consequently their jurisdiction not universal, as is pretended by petition.
I shall add two Statutes more, which are not in print,
and a declaration of the King and Lords in full Parliament, and so conclude this part.
4 Edward III. n. 6. The Lords in Parliament gave
judgment of death on Earl Mortimer, Bogo de Bains, and
sundry other Commoners, for Treason, in the cruel and
barbarous murder of Edward II. father to Edward III.
but they were not indicted thereof, but impeached by the
King before the Lords in Parliament, whereupon, in the
same Parliament, it is entered on the roll, Et est assentu
et accord par nostre Scigneur le Roy, ç. "It is assented
and agreed by our Lord the King, and all the great
ones (fn. 2) , in full Parliament, that although the said Peers,
as Judges, did (fn. 3) take upon them, in the presence of the
King our Lord, to make and render (a faire et rendre)
the said judgments by assent of the King, on some of
those who were not their Peers, and this by occasion
of the murder of him who was so near of blood, &c.
that the Peers who be, or shall be for time to come, be
not bound nor charged to give judgment on others than on
their Peers, but be thereof acquitted and discharged, and
that the aforesaid judgments, now rendered, be not drawn
in consequence, nor example, in time to come, by which
the said Peers might be charged hereafter to judge others
than their Peers, contrary to the Law of the land, if the
like case should happen, which God forbid."
First, I conceive, that clearly it was an (fn. 4) Act of Parliament; the King, in full Parliament, assents and
accords; an Act by the King and Lords is no Act, or
Statute, unless all three States concur; but when the
King and Lords agree, and the expression is, "that they
so do in full Parliament," this is an Act, and the assent is
to be understood to be of the full Parliament.
Secondly, however, the question being now concerning
the jurisdiction of the Lords, here is a full declaration as
to them; but then it is considerable, how far, and what
it is, they disclaim in; it is not only not to be bound,
&c. but "to be discharged of giving judgment on others
than the Peers," so then their power is not universal.
Neither can this be answered, that this leaves them "a
liberty" to give judgment on Commoners, and only takes
from them "an obligation" to do it; for the words are
both negative and affirmative, "they shall not be bound
or charged, but be thereof discharged," and two other expressions show clearly, that in this they exceeded their due
power. It is not said barely that they did the thing, but
's'empresteront," that is, "they took on them, or assumed
on them to do it," and they agree " it shall not be drawn
in example or consequence."
But the last words, which expressly say "that it was
against the Law," clear it out of doubt; for wherein consisteth the illegality of the thing? If the Lords had
jurisdiction in the cause, was it against the Law, in so
great and enormous a villainy as the murder of the King's
father, for them to put in ure that jurisdiction at the King's
desire, or on his charge of the offence?
No, it was only in this; the persons on whom they
exercised their jurisdiction were not their Peers; and this is
clear, and the more clear, because when in the same cause
they proceeded against a Peer and Commoners, the complaint was only against the proceedings against the Commoners, and not against the proceedings against Mortimer, who was their Peer, and whose case more concerned
them than the proceedings against the Commoners; the
only and single point was, they proceeded against persons who were not their Peers, against whom, en contre
la loy, it was against Law for them to proceed, and it was
not concerning the matter or manner of proceeding, but
only the persons. And to say that they claimed only a
liberty, but not to be compelled, seems to be a strange
and unreasonable thing; for then cause should be that
the Lords had a liberty to judge when a Commoner
should be guilty of so horrid a Treason as the murder
of the Prince; and yet, though it should be brought
before the Lords, they should have a power, but not be
bound to exercise it in such case.
The Statute, or Declaration, was not a provision against
the way of proceeding, nor the matter, nor crime, on
which they proceeded, but touching the persons, viz.
Commoners, and amounts to thus much, that be the
matter of as great consequence as the murder of a King,
we ought not to proceed against a Commoner in such
case, though son of the murdered Prince, and he, our
sovereign, too, should command or intreat us; and it is
to be observed, that this Statute, or Declaration, 4 Edward III. is followed immediately, 5 Edward III. the
next year and Parliament, discovers the occasion why 5
Edward III. chap. 1. was made; for 4 Edward III. points
in words to the Statute of Magna Charta, to wit, "Judicium parium," men were tried by others than their Peers;
and then 4 Edward III. being expressed as to the persons, but doth not in express words mention in, or concerning, what matter such proceedings by others than
Peers was against Law. 5 Edward III. chap. 9. doth
declare in what matter such proceeding ought not to be,
viz. "neither concerning life, limbs, lands, goods, or
chattles," that is, nothing; and being an Act of Parliament, no precedents can repeal it, nor prevail to be a
Law against it.
Next I shall present to your consideration two Statutes
made, the first, viz. 15 Ed. III. and printed in the old Statute books, but omitted in the latter. The Commons
complained of the breaches of the Statute of Magna
Charta, and pray remedies with this conclusion, Issent
que che senn port esteir a la lea solong en condico; i. e. "be
judged according to, or as his condition requires," that
is, per pares. The Lords also pray the King, "that Magna
Charta, and Statute de Foresta be observed;" and farther,
that if any, of what condition soever he be, should do
any thing to the contrary, then that he should be judged
by the Peers of the land in Parliament, at the next Parliament, and so from Parliament to Parliament," and this
was enacted accordingly. Afterwards, 17 Edward III.
the whole Parliament, viz. the Acts therein, are repealed, and made void, by the King, Lords, and Commons.
On consideration of these Statutes, First, I observe,
That the Lords desire this power from the King, to punish the breakers of Magna Charta, &c. or other Laws.
It was indeed a large and desirable power; but what need
they desire a particular power by Statute to be conferred
on them, if they had a general and universal power and
jurisdiction before by the Common Law?
Secondly, That though they obtained their desire, and
the Commons were well content therewith, yet it lasted
not a hundred years, but that the whole Parliament repented; so that if they had the power before that, they
would have probably had a saving in the Act of Repeal
for the jurisdiction they had before, or else they would
not have consented to the Repeal especially.
Thirdly, Considering that the Act of 15 Ed. III. doth not
inflict any penalty, in particular, on the offenders, but
praying a remedy; the remedy is only in giving a new
power and jurisdiction to the Peers in Parliament, to punish the offenders.
The reason of the appeal in the Act of Repeal is in
these words, Le Roy apperçevant que le dit Statute fut contre son serment, et en emblemissement de sa couronne et de sa
royaltie, et en contre la loy, il fait repealer. There were
many other branches of that Statute also repealed.
I next say, this power, now claimed and used in this
case by the Lords, is a lessening, or "emblemissement" of
the King's Royalty, to use the words of the Act, since
no command comes from the King, and no address or
petition is made to the King in the matter, nor the name
of the King mentioned in the administration.
The King is the original and fountain of all Justice to
his people, which is administered in several Courts, one
subordinate to the other, of which the Lords in Parliament is or are the highest, by way of error. But though
the Judges in these several Courts administer Justice, yet
the door into the Court is not opened but by a key,
which the King sends under his seal. None can sue primâ
instantiâ, in any Court, but by original writ, properly
so called, issuing out of Chancery, or by other writ original, not so properly called, yet so called, because when
it issues out of the other Courts, there is some occasion
of record, real or supposed, which is the ground; of
which nature is the Quo minus in the Exchequer, the
writ of Privilege in that and other Courts, by officers of
record, and the like; but in none of these Courts can
any sue for Justice, but he may have a writ under the
King's seal, and in his name, without which the Court
hath no authority to proceed, nor can the party claim
any Justice at their hands. And when the inferior Courts
have done their part, if eithe party hath cause to complain in Parliament of the Judgment as erroneous, he
cannot do it by petition in Parliament, but must bring a
writ of error in Parliament in the King's name, and under the King's seal, to authorise the party's complaint,
and the jurisdiction of the Lords, and of the Court.
Nay, if judgment be given erroneously in the Common
Pleas, as in this case of Skinner, and if he had (as was
proper for him to have done) sued in the Common Pleas,
and judgment had been given against him; he could not
have made his complaint to the Lords immediately by
writ, but must have sought remedy in the King's Bench,
and at last before the Lords, if the King's Bench had not
done him right.
Again; in the proceedings at Common Law, it is certain, in case the fact be proved, what judgment ought
to be given; it is not arbitrary, but regular; not so in
the proceedings questioned, which is of great concernment and consequence, for neither party can tell, nor
Counsel advise, what judgment will be given, though the
judgment at Common Law will be, or would be, certain
and foreknown to the parties, or their Counsel, in case
fact be proved.
It is our liberty that we may, or duty that we must,
seek justice from the King; and it is his honour that we
must do it, and it is the observance and duty of his
Judges not to proceed in any cause between party and
party, but by his commission. It is the mark and instance of the acknowledgment of our subjection that we
cannot ask what is our own, but by his writ, and in his
name, and argues our dependence on him.
This is not a formality only, but the ill inferences and
consequences drawn from the neglect of it go farther
than at first sight appears, viz. that the subject, on original petition to him, should have jurisdiction over the
estate and person of his fellow subject. Before I leave
this consideration, I observe, that in case of error, they
cannot proceed to reverse a judgment, without a writ of
error, nor in that case neither per saltum, to examine a
judgment in the Common Pleas immediately, till it hath
passed through the King's Bench; then first, it followeth,
that their jurisdiction is not universal; secondly, if they
cannot take cognizance of it immediately out of the
Common Pleas, how should they do it primâ instantiâ?
I crave pardon to observe, how improper, and how
mistaken an objection it is to say, "Why may not
the Lords take cognizance of the cause at first as well as
at last? Would it not save great expences and attendance to begin there, rather than to be forced there at
last, after great expence elsewhere? Is it not easier to
attend that Court alone, than that and another too?"
I answer, If the proceeding in the writ of error before
the Lords did take in and assume the whole writs of the
cause, or if there were new pleadings to be had in the
writ of error, or new tryal, the objection had force;
but when the cause comes before the Lords by writ of
error, there is no new proof or examination of the fact,
no new tryal, but taking all for truth, as it appears on
the record, without farther question of the fact adjudged.
The question in the writ of error before the Lords is this
regularly, viz. admitting all facts to be as they are alleged,
whether the Law be as is adjudged in the inferior Courts,
or that the proceedings have been otherwise than by Law
they ought to have been; therefore there is no force in
the objection at all. Another thing is, when the suit begins in an inferior Court, the tryal is by Jury, with
such advantage as above for indisserence and redress,
&c. which before the Lords is lost. And though the
Law in some cases allows other ways of tryal, what is
that to a case where the Law allows and appoints tryal
by Jury, as in this case, and not otherwise?
Next, with due respect to their Lordships, I desire to
know, whether or no their Lordships are bound to receive
every complaint made to them of weight or consequence,
or not? I speak not of petty or mean complaints, justly
confined to inferior and petty Courts.
If it be said, Yea, the multitude of causes would oppress them; if it be said, No, I say that that is a kind of
legal solecism, or contradiction to itself, for any Court
of Justice which hath power and jurisdiction to refuse
Justice to any one who duly demands it: When the King
saith, Nulli negabimus justitiam, it is that neither he, nor
his Judges, nor Courts, shall deny it. The King, in his
writs, acknowledgeth himself Debitor Justitiæ; his high
Majesty is not at liberty, it is not arbitrary to him, to do,
or not do, justice. How then can it be arbitrary to any
Court, if it can do justice, not to do it? This must
turn the administration of justice in that Court to matter
of grace and favour, and consequently not of justice;
and justice in a Court, without administration of it, is a
notion, not reality.
Again; it will follow that the King's justice, administered in the highest Court, should be in some cases less
effectual than in the inferior Courts, in some cases oppressive, and in others altogether ineffectual; this will be
best made to appear in the particular instances. If Skinner had received 5000l. at Law, he should have had an
Elegit, Fieri facias, or Capias; but on English proceeding
here, he can have neither, so the proceeding is not so
effectual as in other Courts.
If he had recovered a freehold, he could have no redemption, &c. Suppose that after judgment, and before
execution, the Parliament be dissolved, the party hath
no remedy there, for the Court is gone, nor can begin
again in an inferior Court de novo, the cause being adjudged
in an higher Court; and however the proceedings are ineffectual, till a new Parliament; no comfortable remedy!
Suppose execution be granted, and the party in prison,
the adversary will not consent to enlargement, though
payment offered, and the Parliament is up; here is a
case oppressive, but remediless, especially if any disserence or doubt should happen to be in the exposition of
the judgment given.
It is considerable to the Lords themselves, whether this
jurisdiction be not as disadvantageous to themselves as to
the Commoners; let them consider whether it be not
most for the interest and safety of their estates for them
to be tried by Jurors sworn, on whom they may have
an eye, so that their halting, if any shall be, may be
discerned, and so be tried by evidence, not affidavit: To
be tried there, where if injustice be done, redress may be
had, and the injustice examined, or there, where if wrong
be done, it shall be to the day of doom. And if any
shall be so experienced, as to think there can be no danger, but that whatever shall be there done in so great
and high a Council, must needs be well, let him look
into the story of former times, and see what convulsions
in the State, wars, and miseries, have happened by the
divisions in that great and honourable body, when they
have accused one another criminally; but if their jurisdiction should be extended farther to civil causes, and to
all persons touching estates and freeholds, who shall be
blamed to fear consequences ill, and enlarged proportionably?
Last of all, it is clear that where the jurisdiction is
changed, the Law is changed, as appears by all the instances of tryal, appeal, proceeding, judgment, and execution, fact and law, equity and law, all blended together, and indifferent and arbitrary.
[April 17, omitted.]
Friday, April 18.
[The House resumed the Debate of amendments to the Bill
for the better settling of the maintenance of the Parsons, Vicars,
and Curates in the parishes of the city of London, burned by the
late dreadful fire there.]
Of augmentation of their maintenance.
Mr Attorney Finch.] Before the Reformation in Hen.
VIII's time, any man, though ever so ignorant or incapable, with dispensation might take upon him as many
livings, with cure of souls, as he could get, (tot quot) be
the cure ever so great, or the person that had it ever
so ignorant. This Clause makes a person incapable of
continuing there that has any other cure of souls, and
the Patron is to present, as if void—Would know the difference between a man being a Prebendary forty miles
off, and having a living forty miles off—Suppose the
person be made a Bishop, will you take away the King's
Prerogative of presenting, which, as the Law now stands,
he may? as likewise the right of the Peers in their Chaplains? It is against the Law, the King's right, and that
of the Peers, with whom we have too much difference
Mr Waller.] Is it now to take away the King's Prerogative to let the people go to Heaven? We part with
things for ever; the King parts with things for ever;
let not the Lords stand in mens way to Heaven—It is
said "they must be resident in London;" then shall we
be neglected in the country—Thinks the Lords cannot
stand with us.
[The Bill passed.]
[April 19 and 20, omitted.]
Saturday, April 22.
[Mr Speaker reports, that the House had attended his Majesty upon the Address of both Houses, (voted the 12th inst.) for his
Majesty's encouraging the wearing the manufactures of his own
Kingdoms; and that his Majesty was pleased graciously to accept
the said Address, and declared, "That he did willingly comply with
their desires therein, and did assure them, that, as he had already
put it in practice in his own person, so he would, for the future,
take care that it should be observed by himself, and those of hisfamily."]
Mr Attorney General reports the Conference had with the
Lords (fn. 5) .
Debate upon the Conference.
Mr Attor. Finch.] The Lords said "concesserunt," and
it is in the records "concessit
(fn. 6) "—Importuned the King to
make 6s. 8d. and not by Prerogative 40s.—Shall we make
this Bellum grammaticale?—If that was so, we fight without
book—Tota communitas concessit, "Grants to us by the Commonalty," 33 Henry VI.—Sir John Pilkington's case, if
not come in by Pentecost following. He said he was attainted by the Lords and Commons two ways. [Judge
Fortescue.] "In matters where the Lords agree with the
sense of the Commons, the Lords need not send back to
amend circumstances—The Commons have agreed for
four, and not two." The prodigiousness of citing this
record is strange. This is a case that Brook puts a mark
upon to be no Law, in his abridgement of Common Pleas.
—Knows a Lawyer who had like to have been imprisoned for saying the Lords book was a memorial, and
no record, citing the case of Pilkington—The Lords, till
Henry VIII's time, tell us of no precedent of lowering,
and yet call it a fundamental Privilege—Is it any derogation to the King to refuse the whole, because he cannot take a part? Did we ever dispute the different power
of the Clergy, who by constant practice have been possessed with granting their own subsidies, without alteration,
as by tradition, time out of mind? The Lords have
no power, but to assert in their House and the Painted
Chamber. There will come a time possibly when the
Lords may be of another opinion—How came it to pass
that the Law, whether Justice should be dearer, and the
12d. on lands, was never disputed with us, but now
to be disputed when it comes upon the middle fort of
people, Corporations and Merchants? Would not urge
our arguments beyond the bounds of modesty, and our
arguments need it not, nor do we, to be recommended to
the good opinion of the people by the Lords, and let
God and the King judge between us.
Mr Coleman.] It is true we found upon imposition of
tonnage and poundage that the styles have not varied upon
precedents in subsidy, by records, and principally by the
precedents of the Lords, that the power is in the Commons; all their nine reasons return to this single one, that
they, being part of the legislative power, ought to have
power to lower and heighten. In their negative voice,
it is but a power of assenting and qualifying what relates
to themselves. In Magna Charta, per communitatem concess.—9 Henry IV. is not a fuller authority than that. The
Statute of Gloucester. In Prynne's Comment on the fourth
part of Lord Coke's Institutes, some of the Lords had
been with the King to debate what taxes were fit to be
granted—The Commons complain, and a record is extant
for settling that right. The Precedent is called "the indemnity of the Lords and Commons." "For the future,
in all subsidies where the Commons grant, and the Lords
assent, (the Lords do not grant;) the Speaker of the
Commons shall carry it up, and present it." No Aid ever
went to the King by the Speaker of the Lords House.
Record. "In all Aids the Commons grant, and the Lords
assent, and the Speaker of the House of Commons shall
carry it up." Brooke puts a query upon Fortescue's book,
and it is an idle book. The Lords assent, but have not
an equal power to grant. The Lords and Commons
grant, because the Lords have a negative power.
The Speaker.] Fortescue, 33 Henry VI. was never of
that opinion. When the Lords had indorsed "Pentecost
next," they sent for the Clerk, who insinuated as his
opinion, (who was mistaken in matter and form,) the
Lords having passed it but in part. Vide Brooke. The
9th of their wool, and the 9th of grain, and the 9th of
Sir Robert Howard.] 1 Henry VIII. is a famous Proviso.
The Lords have treated with the Commons. In Henry
IV's time the Lords and the Commons conferred, but still
the Commons granted. Instead of our differing from our
ancestors, they differ from theirs. There are above an hundred Precedents to one. In all Henry IV's and Henry VI's
time, the Commons gave, and the Lords assent; they give
by their own wills. Fairer Precedents could not come
from us than they give for themselves—The Lords would
not give reasons of the thing, that so the Bill might
miscarry at our doors.
Sir Thomas Meres.] Is for a Conference, and to give
reasons, and to inforce the great Proviso of the first of
Mr Henry Coventry.] You will come to ask, it seems,
what the Lords will not give. The business is the grand
constitution of the House. If you will argue which is
most equitable, if you would have no Traytor, you must
have no King. But by reason or convenience, whether
the thing shall be better so, or not so, is to dispute the
Government—Would ask the Lords, why they give us
reasons, and will not admit, but exclude, our reasons, in
answer to them?
Sir Richard Temple.] The Lords handled not the
Amendments, but put it upon you to determine previously the point in question. Generally upon impositions.
Not upon the subject-matter, but either upon the Message,
or what fell from them at the last Conferences.
Sir John Birkenhead.] Kirkby, the Clerk of the Rolls,
tells Markham, the Judge, that the Lords had amended the
Act of Pilkington, but there was no interlining the record, or razure—14 Edward III. is quoted to you;
there the Lords called for the Commons to give money.
The Lords gave by themselves, and they would bring in
Merchants, but the Commons protested against it.
The Speaker.] What you will do upon the Bill, God
knows, for we have nothing before us but reasons in general from the Lords—The Lords may have passed the
Bill, for ought we know.
Sir Thomas Meres.] It is now an original matter, and
not the Bill that the Lords conferred upon. Order has been
the subject-matter of the Message, and not the subjectmatter of the Bill. You ought to acquaint the Lords,
that this is not parliamentary. If they had asked it
barefaced, it is probable they thought you would not
have granted it.
[Resolved, That the Lords Reasons and the Answer of this
House be entered in the Journal of this House.
Resolved, That the Thanks of the House be returned to Mr
Attorney General, for his great pains and care in preparing and
drawing up the Reasons delivered to the Lords, in answer to their
Reasons, which was by him performed to the great satisfaction of
this House, in vindication of their Privilege, and the just and
undoubted Right of the Commons of England. And Mr Speaker
did accordingly deliver the Thanks of the House to Mr Attorney
The Bill of imposition on foreign commodities was left thus
abruptly, and the Session ended; for the same day the Parliament
was prorogued by his Majesty, [without a Speech, or any expression of Thanks for the Aids it had produced,] to April 16, 1672. (fn. 7)