expeditionem negotiorum Parliamenti praedicti cum omni diligentia procedâ—rent Iudgements upon Writs of error in PARLIAMENT IF erroneous Iudgements bee given in the Kings Bench or in the Exchequer Chamber upon the Statute of 27. Eliz. cap. 18. the party may have his Writ of â—râ—oâ— retureable in Parliament but not upon judgement given in the Common Pleas untill the same bee â—everâ—ed or affirmed in the Kings Bench as it was answered in Parliament under â—dward the third in the case of the Bishop of Norwich Vpon the Writ of Erâ—or the Lord chiefe Iustice of the Kings Bench is to bring in the Record and a â—raâ—script of it into the Parliament and theâ—e leaveth the Transcript â—ut carâ—â—eâ—h the Record bâ—ck and thereâ—pâ—n the Erâ—ouâ—s beiâ—g assigned or as some Examples are befoâ—e the Assignamus of the Errors order is to bee given that a Scire facias be awarded against the Defendant upon whose appeaâ—anc examination of the Errors by the Lords the Iudgement is either affirmed or reversed AFter the Record thus brought in Clericus Parlïamenti habet inde Custoaiam per duos tantum non per Communitatem assignabitur Senescallus qui cum Dominis spiritualibus ac temporalibus per conâ—ilium Justiciariorum procedat ad errâ—rem corrigendum In which words it is observed that the Lords have power to make a Delegation of their Iurisdiction to a person chosen out of themselves as a Steward to judge for them as also they did in their proceedings against Gomemz and Weston under Richard the second when they apâ—ointed the Lord Scroope for Steward of the Parliament to arraigâ—e the Offenders but this rests at their pleasâ—re whether they will judge themselves together or so appoint a Steward MEmorandum quod Christopherus Wray miles capital Iusticiarius de Banco Regis seâ—u adduxiâ— in â—ar in camera parl inter duos bre de errore billa de regina indors ac rotulat In quibus continebantur placita processus in quibus supponâ—batureâ—ror ib. reliquit transcript totius recordi ciâ— Cler. Parl. super hoc venit Richardus Herbert Ioh. Awbrâ—y Willielmus filiam â—imon Browâ—e in propriis personis suis in Parliamento statim dixerunt quod in recordo processu praedict. in redditione Iudicâ—i praedict. manifestè est erratum in hoc quoâ— postquam Iudicium praedict. in loquela praedict versus praefat. Thom. Gomiel redit fuit antequam praedict. Iohannes Hunt prosecutus fuit impetravit praedict. primum breve descire facias versus praefat. Thom. Ric. Herbert caeteros praedicto manucaptores praedict. Thom. Gomiel nullum breve de capias ad satisfaciendum pro debito damnis praedict. per praefat. Iohannem Hunt in Parliamento praedict. prosequendo Et reternat fuit versus praefat. Thom Gomiel ubi per consuetudinem Curiae dictae Dominae Reginae coram ipsa Regina à tempore contrarii memoria hominum non existit in eadem usitat approbat brev. de Cap. ad satisfaciendum versus eundem Thom. Gomiel pro debito damnis praedict. Parl. praedict. prosequi retornari debet antequam aliquid brev. de sci fac versus manucaptores prâ—dâ—ct in loquela illa impetrâ—nt seu prosequi debe et licet consueâ—udo forum captionum râ—cognitionum in curia praedict. usi fuerunt in forma praedict. viz. si contigerit eundem Thomam Gomiel in Parliamento praedict. convinci tunc iisdem manucaptores concesserunt quilibet eorum per se concessit tam praedict debitum quam omnia damna castag c. praefat. Ioh. Hunt in ea parte adjudicentur de Terris catallis eorum cuislibet fieri ad opus praedict. Iohannis Hunt levari si contigerit praedict. Thom. Gomiel debitum damnae illa praefat. Iohannis Hunt minime solvere aut se prisonae Marescall Dominae Reginae coram ipsa Regina ea occasione non reddere c. Et petiere iidem Rich. Herbert alii praedict. quod Iudicium praedict. processus super bre de scire fac prosecut in curia Dominae Reginae coram ipsa Regina revocetur adnulletur peniâ—us pro nullo habeatur Et super hoc Domini per consensum Iustitiariorum post longam maturam deliberationem cum consensu adjudicaverunt quod judicium praedict. processus super bre de scire fac prosecut in Curia dict. domin Reginae coram ipsa Domina Regina revocetur adnulletur penitus pro nullo habeatur CHAP. V. Bills passed and Judgements given without assent of the Lords Spirituall VNder Edward the third a Petition of the Commons was thus ITem wee are not willing to suffer that payment be made to Cardinalls for their juornying into France for to treat out of the Realme of England THe answer is as to the dispences of Cardinalls it seemeth â—o all the Baronage and other sages of the Kings Councell that the Commons demanded reason and for that they are agreed that it shall be so The like is there in the two Petitions of the Commons against the Clergy carrying money to Rome and Cardinall having benifices here divers Ordinances against the Church of Rome are agreed by the K. the Lay Peers Commons but all the Prelates made Protestation of not assenting or doing what may be or turne in prejudice of their Estate or Dignity The power and direction for Iustices of the peace is ordained at the complaint of the Commons by the King by the assent of the Lords Temporall And so also divers times without mention of the Lords Spirituall who indeed under Edward the 3 protested that they had not to do with matters of keeping the peace THe Commons exhibite a Petition against Procurations from Rome benefices obtained by Letters thence c. It is ordained established by the K. by the advise and assâ—nt of the Lords Temporall that no Benefice is to be had here but by guilt from the Kings Subjects c. and if that any do contrary to this Act he should incurre the danger of a praemunire given by the Statute of 27 E. 3. A Petition in these words Item that the Appeales persâ—ites accusations Iudgements had and rendered c. should be good notwithstanding the Lords Spirituall and the procuratoâ—s of the Lords Spirituall absenteâ— themselvs out of Parliament in time of the said Iudgements rendered for salvation of their eâ—tate As it is contained in a Protestation by which the Lorâ—s Spirituall and Procurators were in this present Parliament c. The King granteth it And the Protestation of the Clergy is entered as followeth For as much as certaine matters were moved in this present Parliament touching openly the crime of the Arch-Bishop of Canterbury and the other Prelates of his Province who made Protestation in the forme and words which followes IN
Dei Nomine Amen Cum de Jure consuetudine regni Angl. ad Archiep. Canterbur qui pro tempore fuerit nec non caeteros suos suffragandes Confratres Coeptis Abbates Priores aliosque Prelatos quoscunque per Baroniam de domino Rege tenentes pertinet in Parlimentum Regis quibuscunque ut pares regni praedicti personaliter interesse ibidemque de regni negotiis aliis ibi tractare consuetis cum caeteris dicti regni paribus aliis consulere ordinare statuere definire ac caetera facere quae Parliamenti Tempore ibid. incendet faciend in quibus omnibus singulis nos Willielmus Cant. Archiepiscopus totius Angl. Primas Angl. Sedis Legatus pro nobis nostrisque Suffraganeis Coep confratribus nec non Abbatibus Prioribus Prelatis omnibus supradictis potestat eorum quilibet potestatur qui per se vel procuratorem si fuerit modo presens publicè expresse quod intendimus intendi volumus ac vult eorum quilibet in hoc presenti Parliamento aliis ut pares regni praedicti more solito interesse considerare tractare ordinare statuere definire ac caetera exercere cum caeteris jus interessendi habentibus eisdem statu ordine Juris eorum cuilibet in omnibus semper salvum verum quia in praesenti Parliamento agitur de nonnullis materiis in quibus non licet nobis alicui eorum juxta sacrorum Canonum instituta quomodo libet personaliter interesse eo propter pro nobis eorum quolibet protestamus eorum quilibet hic presens etiam protestatur quod non intendimus nec volumus sicuti de Jure non possumus nec debemus intendi nec vult aliquis eorundem in praesenti Parliamento dum de hujusmodi materiis agitur vel agetur quomodo libet interesse sed nos eorum quemlibet in ea parte penitus absentare in re paritatis nostrae cujuslibet eorum interessend in dicto Parliamento quoad omnia singula ibidem exercenda juris eorum quilibet Statu ordine in omnibus semper salvo Ad hoc insuper protestamur eorum quilibet protestatur quod propter hujusmodi absentiam non intendimus nec volumus nec eorum aliquis intendit nec vult quod habet processus habend in praesenti Parliamento super materiis antedictis In quibus nec possumus nec debemus permittitur interesse quantum ad nos quemlâ—bet eorum attinet futuris temporibus quomodo libet impugnentur infirmentur seu etiam revocentur Which Protestation read in full Parliament by the commandement of the King and Assent of the Lords Temporall and Commons In like manner make Protestation the Bishop of Duresme and Carlisle mutatis mutandis This was upon the occâ—sion of the appeale of Treason in the same Parliament commenced by Thomas Duke of Glâ—ucester and others against Alexander Arch-Bishop of Yorke Robert de Vere Duke of Ireland and others But although they thus absented themselves they made no proxy at this time to assent in their room as afterwards they agreed to do in cases of Iudgement of death But the first use of such proxies is in the 21 oâ—Rich the 2. neither at all are such proxies or assent of the Bishops For under H. 5. the Earle of Salisbury by Petition in the nature of a Writ of Error shewed that the Attaiâ—der of John the late Earle father to the Pâ—titioner in the second of H. the 4 might now be reversed and amongst the errors assigned one was that he had been adjudged sans assent in Parliament but it was in Parliament now adjudged that it was no error The Arch-bishops of Cant. and Yorke for themselvs their Clergy make Protestation not to consent to any Statute made in this Parliament Quatenus ea in restrictione potestatis Apostolicae aut in eversione Ecclesiae dignitatis tendere dignoscuntur which at their request was inrolled in Parliament yet an Act passed at that Time and is publique against the Popes giving of Benefices by way of provision in England In the beginning of Queene Elizabeths raigne when divers Acts passed touching matters of the Church as Service and Sacraments and Church-possessions c. the Bils passed Dissentientibus All the Bishops as it is especially entered in the Iournals with particular enumeration of all their names Whereunto may be added that assertion of the Iudges in that deliberation had under Henry the eight touching the power Royall in the Church as the words were reported That our Lord the King may well enough hold the Parliament by himselfe and all his temporall Lords without the spirituall Lords c CHAP. VI Their appointing Judges out of themselves for examination of Judgements and delayes of other Courts THis is given them by a Statute of Edward the third in these words Likewise for that many mischiefes are come c. That divers places as well in the Chancery as the Kings Bench Common pleas the Exchequer the Iustices assigned and other Iustices to heare and determine the Iudgements wherein have been delayes sometimes by difficulty somtimes by divers opinions of the Iudges and sometimes by other occasions it is assented established and agreed that of the Commons before said in every Parliament there be one Prelate two Earles and two Barons that shall have Commission and power of the King Which priviledge is now taken away from the Prelacy by Act of Parliament Anno 17. Car. to heare by Petition to them delivered the plaints of all those which complaine of such delayes or grievances done to them and that they have power to cause to come before them at Westminster or in any other places where the parliament shall be holden and the Courts of records and processes of such Iudgements as are delayed and shall cause to come before them the same Iustices who shall be there present to heare the cause and their reason also heard by good advice of them the Chancellor three Iustices of one Bench and of the other and others of the Kings Councell And in the same Parliament accordingly the Arch-Bishop of Canterbury the Earles of Arundell and Huntington and the Lord Woake and the Lord Basset were assigned to the same purpose and although the Iustices Chancellor Treasurer Privy Seale and others had before taken Oath c. Yet it was ordained that those of the Baronage assigned shall give them a new Oath and increase and diminish the Ministers of Iustice as they shall see Cause CHAP. VII Their Tenants of ancient tenancies being discharged of paying the charges of Knights of the shire THe Commons exhibite a Petition that whereas the Tennants of the Lords that did hold by Barony and summons to the Parliament might not be discharged of paying towards the expences of Knights c.
tryall shall bee by his Peeres And this is cleere for all Temporall Barons and their Ladies but it hath beene doubted whether the same Law bee in case of tryall of spirituall Barons or no and without doubt one speciall Argument among others hath beene made from the name of Peeres some concluding thus Spirituall Barons are no Peeres therefore not to be tryed by their Peeres others for the other part thus Spirituall Barons are Peers therefore to be tryed by their Peeres but of these two Arguments the first is false in matter the second in forme For the first it is true and plaine that Spirituall Lords have beene Peeres and of the antecedent false the Testimonies justifying them to have beene so are very frequent in the Bish of Winchesters case who departed from the Parliament at Salisbury about the beginning of Edward the third and was questioned for it afterwards in the Kings Bench hee pleaded to the Declaration Quod ipse est unus ê paribus Regni Praelatus c. and in that short disputation of the case which is lest in the the yeare bookes hee is supposed cleerely both by the Court and Councell to bee a Peere So afterwards under the same King in a Writ of Wards brought against the Bishop of London he pleaded to issue and the Defendant could not have day of grace for he said as the words of the booke are that a Bishop is a Peere of the Land Et haec erat causa c. And in a like case upon an Action of trespasse against the Abbot of Abyndon who was one of the Lords Spirituall day of Grace was denyed against him because he was Peere de la terre So expressely upon the Question of having a Knight returned into a Jury where a Bishop was Defendant in a quare impedit the rule of the Court was that it ought to bee so because the Bishop was a Peere of the Realme So the Iudgement given against the Bishop of Norwich in the time of Richard the second hee is in the roll expressely allowed to bee a Peere for hee had tooke eeceptions that some things had passed against him without assent or knowledge of his Peeres of the Realme To which exception the answer was It behooves you not at all to touch your Prelate of onely certaine misprisisions which you as a Souldier of the King c. have done and committed c. Here is to be avoided that challenge of Stafford Arch-Bishop of Canterbury under Edward the third when upon his being excluded the Parliament he thus challenged his place Ego tanquam major par Regni post Regem vocem habeus Jure Ecclesiae mea tantum vendico ideo ingressum in Parliamento peto the same is justified by the Clergy touching their Ius paritatis before recited at large and entered in the Parliament roll And in the Assignement of the Errours under Henry the fifth for the reversall of the Attayndor of the Earle of Salisbury one errour is assigned that Iudgement was given without assents of the Prelates which were Peeres in Parliament and that although that were adjudged to bee no errour yet it hath been allowed cleerely in the roll and the Petition that they were Peeres So in an Act of Parliament under the same King the Bishops and Arch-Bishops and Arch-Bishops of Ireland are called Peers of that Kingdome and divers other passages occurre touching this name of Prelate neither could any scruple bee further made of it untill the passing of an Act of this Parliament 17. Car. 1641. But as this is cleere that they were Peeres so also it is cleere that they were not by the lay to bee tryed as Temporall Barons by their Peeres and the conclusion of the contrary drawn as before out of that that they have been Peers is wholy without consequence this having been a point of the common Law as it is distinguished from Acts of Parliament which falls out generally to bee onely the knowne and received custome within the Kingdome if the practise and custome within the Kingdome be therein observed the point of Law may bee soone resolved In the practises and customes divers Bishops are found to have beene arraigned and legally tryed upon Capitall offences yet all that have beene so have had their Triall onely by common Iuries and whether by Statute any alteration bee of this common Law shall presently be examined there being many Bishops now to be tryed THat practise and Custome appeareth in particular examples found from the time of Edward the second to the age next before us thus collected Adam Bishop of Hereford under Edward the second was indicted of divers Felonies and of joyning with Roger Mortimer hee is arraigned in the Kings Bench and upon question how hee will be tryed he saith Quòd ipse est Episcopus Heref. ad voluntatem Dei summi Pontificis quòd materia praedicta Articulorum sibi imposit adeò ardua est quod ipse non debet in Curia sic super praedictis sibi impositis respondere nec inde responders potest absque offensu divino sanctae Ecclesiae Hereupon day is given over and then the Inditement is brought into the Parliament whereupon his arraignment hee giveâ— the like answer and Walter Arch-Bishop of Canterbury petit eum ei liberatur and this is commanded that hee have him ready at a certaine day in the Kings Bench Et praeceptum est vicecomiti Hereford quòd venire faciat coram Domino Rege tot tales c. ad inquirend. prout moris est c. And a common Iury is returned which finds the Bishop guilty whereupon hee is committed to the Arch-Bishop and convict and his Lands and goods are seised into the KINGS hands Here was the Bishop tryed by a common Iury although it appearâ—s both in the Record and in the History of that time that the whole Clergy earnestly indeavouâ—ed to have kept him from conviction but no pretence of any right of Tryall by Peeres is once mentioned in this behalfe though other complaints are full enough expressed against the wholâ— proceedings VNder Edward the third Iohn de Isle brother to Thomas Hen Bishop of Ely was indiâ—ed in Huntingtonshire that he with divers others per assensum procurationem Episcop 28. E. 3. die Lunae post festam Sancti Iacobi burnt the house of the Lady Wake at Colne by Sommersham quòd praedictus Thomas Episcopus sciens praedictam combustionem per praedict. servientes suos esse factam dictos servientes apud Somersham postea receptavit c. And also it was found before the Sheriffe and Coroner that 29 Edward the third the Bishop was guilty de assensu of the murther of one William Holme slaine by Ralph Carelesse and Walter Ripton called little Watt upon malice conceived against Holme because hee followed the suit of the Lady Wake the principalls were attainted by Outlary