to do this and confess it was contrary to the Law of the Land Secondly to preserve their own Right to Judge none but the Peers in Case of Life and Death For then the Kings Steward is to sit in the Chancellors place and the Lords are to be Tryers and Judges And so by judging others then their Peers descended below their degrees For none but Peers are so to be Tryed and Judged It is otherwise in Cases of misdemenors then the Chancellor keeps his Place and the Lords are only Judges and not Tryers they may command a Jury to be Impannelled For Tryal of the Facts if the truth appear not by the Parties answer the Testimonies are Exhibited as 1 R. 2. in the Case of Alice Peirce Here ariseth a Question Whether the Spiritual Lords de Jure are tryable by their Peers or no Out of Parliament they are not to be Tryed by the Peers But the doubt is whether in time of Parliament they are to be so Tryed or no To me it seems they may if the matter be moved against them in time of Parliament For as it is in the Parliament at York 15 E. 2. in the Act for the Repeal of the Spencers banishment they are Peers in Parliament Note that the Petition for the Repeal saith that the Bishops are Peers in Parliament The Bishops name themselves Peers of the Land And the Chancellor to the King And the Act stile them Peers of the Land in Parliment There be divers Presidents also of the Tryal of Bishops by their Peers in Parliament as well for Capital offences as misdemenors whereof they have been accused in Parliament As the Archbishop of Canterbury 15 E. 3. N. 6 7 8. Et ibid. postea 44 39. Et ibid. 17 E. 3. 22. And the Bishop of Norwich 7. R. 2. for misdemeanors So were the Bishops of York and Chichester Tryed for Treason by their Peers in Parliament upon the Appeal of the Lords Appellants 11 R. 2. Anno 21 R. 2. The Commons accused the Archbishop of Canterbury of Treason and the temporal Lords judged him a Traytor and banished him But if the Bishop be accused out of Parliament he is to be tryed by an Ordinary Jury of Free-holders for his honour is not inheritable as is the temporal Peers out of Parliament save that only of their Tryal As no day of Grace to be granted against them in any Suit A Knight to be returned upon the Pannel where a Bishop is party and no Process in a civil action to be awarded against his body and the like And by this it appeareth what Persons are de Jure tryable by the Lords in Parliament viz. their Peers only Touching the nature of the Offence Herein the complaint and accusation as well of the Party delinquent as offence is to be considered For upon the Information of the King at his Commandment or upon complaint of private Persons the Lords may not by the Law try any but their Peers for Capital offences And the Lords have ever referred offences of other nature complained of by private Persons to the Common-Law if there be remedy unless some special cause appear fit for their own Judgment But upon complaints and accusations of the Commons the Lords may proceed in Judgment against the Delinquent of what degree soever and what nature soever the offence be For where the Commons complain the Lords do not assume to themselves tryal at Common-Law Neither do the Lords at the tryal of a Common Impeachment by the Commons decedere de jure suo For the Commons are then in stead of a Jury and the Parties answer and examination of witnesses are to be in their Presence or they to have Copies thereof And the Judgment is not to be given but upon their demand which is in stead of a verdict so the Lords do only judg not try the Delinquent In the Lords proceedings in Judicature is observed also a certain form which varieth according to the nature of the complaint and the matter complained of so that no general Rules can be given therein though many Judgments have been reversed for errors whereof there be many Precedents And the Execution upon life and death hath been stayed at the Request of the Commons the proceedings being illegal whereof I have seen only one Precedent touching the Duke of Clarence tempore E. 4. Wherefore for our better understanding of the Form of Judicature let us first consider the several causes wherein Judicature belongs to the Parliament and then the ancient way of proceedings in each Cause CHAP. II. In what Cases Judicature belongs to the Parliament JUdicature belongs to the Parliament in these six Cases 1. In Judgments against Delinquents as well for Capital crimes as misdemeanors wherein is to be considered 1. The Accusation 2. The Parties Answer 3. The Replication 4. The proof by Examination of witnesses or otherwise 5. The Judgment 6. The Execution 2. In the Reversing erronious Judgments in Parliament are to be considered 1. The Petition 2. The bringing in the Record 3. The Assignment of Errors 4. The Reversal thereof 3. In the Reversing of erronious Judgments given in the Kings Bench are to be considered 1. The Petition 2. The Writ of Error 3. The bringing in the Record 4. The Assignment of Errors 5. The Writ of Scire facias 6. The Defendants answer 7. The Reversal of the Judgment 4. In deciding of Suits long depending either for difficulty or delay wherein is to be considered 1. The Petition 2. The advice with the Judges 3. The determination of the Lords 5. In hearing complaints of particular Persons on Petitions wherein is to be considered 1. The Petition 2. The Defendants answer 3. The Proof 4. The Orders of the Lords 6. In setting at Liberty any of their own Members or Servants imprisoned and in staying the proceedings at the Common-Law during the Priviledge of Parliament wherein consider 1. The Quality of the Person Imprisoned 2. The Parties Answer at whose Suit he is imprisoned 3. The manner of his Charge In certifying the Elections and Returns of Knights and Citizens for the Parliament But now the Commons alone determine of this Wherefore I will only shew that the Commons did heretofore Petition to the Lords for redress herein and what course was then taken I leave it to the Clerk of that House to shew how the Commons proceed herein at this day Of the rest in Order And first Of Judgments on Delinquents § 1. In Judgment against Delinquents is first to be considered the Accusation For as in the Kings Bench the Justices proceed not to the Arraignment of any Offender without an Indictment So the Lords have not proceeded to Judgment unless the Crimes have first been presented to them by way of Accusation If otherwise their Judgments have been reputed erronious as that against the Spencers was in 15 E. 2. Rot. 2. claus lit penden For the same Persons cannot be both Accusers
were also recorded and read in Parliament Numb 17. 18 19 20. but the Information exhibited against him whereupon he was arraigned is not recorded It is only said He was arraigned Ex parte Domini Regis §. 3. Here might be two Questions First Whether was this Sir Ra. Ferrers legally brought to his Answer in Parliament by the commandment of the Duke of Lancaster and those other Lords who were then with him in the Marches of Scotland Secondly Whether he being no Baron or Lord of Parliament for he never had Summons might be legally arraigned in Parliament for life and death upon an Information Ex parte Dom. Regis which is contrary to the Law as was resolved in Parliament 4 E. 3. Numb 2. and 6. For resolutions of these doubts I am of opinion that the Duke of Lancaster might send Sir Ra. Ferrers to the Parliament because it was then sitting and might examine the Treason whereof he was suspected though they could not proceed to Judgment against him without the Commons he being a Commoner and not their Peer And it fell out in the Examination of this business they found the Letters to be counterfeited and so he was acquitted thereof And so far their proceeding was not illegal For the Parliament may entertain and examine any Cause and then direct the Judgment thereof to its own proper Court if it belong not unto them as they did in 5 R. 2. Numb 43. 44. Here Sir William Cogan Knight being accused by Sir Richard Clurdon of matter sounding to Treason After the Lords had heard the Cause they remitted both the parties to the Common-Law And in this Case of Sir Ra. Ferrers if they had found he had been guilty they might have proceeded to Judgment against him according to the Precedent of Sir Tho. Mortimer in 2 H. 4. who was indicted in London and the Indictment returned into the Chancery and thence brought into the Parliament where the Commons affirmed the same and prayed Judgment against him Anno 2 H. 4. The Lords Temporal gave Judgment on one Tho. Holland Earl of Kent John Holland late Earl of Huntington John Mountague late Earl of Salisbury the late Lord de Spencer and Ralph Lumley who were beheaded in a War they had Trayterously raised against the King This Judgment is entred but not the Information Ex parte Dom. Regis which is necessary to be understood for had it been omitted his Son Thomas would without doubt have assigned that for one of the errors in his Petition to reverse the said Judgment 2 H. 5. apud Leicester which he did not though he assigned for an Error That his Father was put to death without an accusation In the Parliament begun at Westminster Feb. 6. 1 Car. 1. and continued until June 25. Anno 2. ejusdem Regis John Earl of Bristol was charged with High Treason in this manner viz. Primo die Maii. The said Earl of Bristol being brought to the Bar and kneeling till the Lord Keeper wished him to stand up The Lord Keeper told him he was sent for to hear his Charge of High Treason And Mr. Attorney General being at the Clerks Table began to open his Charge but being interrupted by the said Earl who with much importunity exhibited Articles against the Duke of Buckingham then present which as he said he conceived to be Treason and required of the Lords that his Testimony against the Duke and the Lord Conway against whom he then also delivered Articles might not be made invalid no more then the Charge against himself which he affirmes was procured by the said Duke yet notwithstanding the head of the Kings Charge were opened against him by Mr. Attorney and then the said Articles against the said Duke and against the Lord Conway were read And it was ordered by the Lords of the Parliament that the Kings Charge against the said Earl should be first heard and afterwards the Earls Charge against the Duke c. But yet so as the Earls Testimony against the said Duke be not prevented prejudiced hindred or impeached Secundo die Maii. The House was moved that the Earl of Buckingham might be indicted according to the Stat. of 35 H. 8. the Treasons committed being beyond the Seas as was objected and that being certified to both Houses they to proceed against him by Tryal of Peers But their Lordships did not resolve on the manner of proceeding Then the Houses were moved that Mr. Attorney might provide an Indictment against the said Earl to be returned to the House on Saturday next Maii 6. And if he doubt of the Form to confer thereof with the Judges And if any great difficulty appear to resort to their Lordships and acquaint them with it And it was ordered that Mr. Attorney proceed with the preparation but the Houses not to be concluded at their next meeting on Thursday And the Sub-Committee for Priviledges c. to search for Precedents in the mean time Die Jovis Maii 4. The Sub-Committee for Priviledges reported one onely President viz. the Tryal of the Earl of Northumberland 5 H. 4. which the Clark read unto them out of the Parliament Roll of that year Whereupon after long debate It was ordered first that Mr. Attorney prepare the heads of the Charge against the Earl of Bristol and to bring them in on Saturday next Secondly The Earl then to receive his Charge at the Bar. Thirdly That when the Earl hath heard his Charge the Lords will determine when he shall Answer But he is not to be inhibited if he will Answer presently Fourthly The Cause of the Earl of Bristol is to be retained wholly in this House After the Earls Charge is brought in and his Answer then their Lordships to proceed to hear Mr. Attornies proofs amongst themselves and then to put the Cause into a way of Proceeding in this House Die Sabati Maii 6. The Lord Keeper shewed how Mr. Atturney desired that in regard the House hath already heard the nature of the crimes objected against the said Earl of Bristol That the Clark of the Crown in the Kings Bench may attend the reading of the Charge here according to a Precedent of former times which was denyed in regard the Clark of the Crown in the Kings bench is no Minister of this Court And also for that it was ordered May 4. that this Cause was wholly to be retained within this House The said Order being read the Earl was brought to the Bar and the Lord Keeper commanded Mr. Attorney to read the Charge against him who read the same out of a Parchment ingrossed in Court-hand and signed by himself Ro. Heath It containeth diverse Articles of High Treason and other great Enormities Crimes Offences and contempts committed by the said Earl c. prout postea Thus much touching the Charge against the said Earl by Information in the Kings behalf A Question was demanded of me and others in private the last Parliament
Conferences wherein his Majesty by Testimony becometh a Witness and in case the Earl should be convicted his Commission cometh to the Crown c. he desired their Lordships to put his Majesty in mind thereof for the declining his Accusation and Testimony 9 Maij These Questions were proposed to the Judges 1. Whether in Treason or Felony the King's Testimony is to be admitted or not 2. Whether Words spoken to the Prince who afterwards is King make any alteration in the Case And the Judges were to deliver their Opinion therein on the 13th Day of the said Month of May. And on Saturday Morning being the said 13th Day the Judges were desired to deliver their Opinions The Lord Chief Justice said They appointed to meet and to consider thereof and Mr. Attorney desired to know the time of their Meeting and before that time he brought them a Message from the King viz. That his Majesty was so sensible of his Honour that he would not suffer the Right of his Crown which may justly be preserved to be dampnified in his time That they might deliver their opinion in any particular Questions concerning the Earl of Bristol but not in the general Questions whereof his Majesty could not discern the consequence which might happen to rhe prejudice of the Crown Every particular Case varying according to the circumstances 4 E. 3. The Articles were read against Roger Mortimer and it followeth thus Wherefore our Lord the King doth charge our Earls and Barons Peers of this Realm That forasmuch as these touch him principally and all the People of this Realm That you do unto the said Roger Mortimer right and lawful Judgment such as appertaineth to such an one to have who of all the faults abovesaid is very guilty as he believeth And for that the said things are notorious and known to be true unto you and to all the People of the Realm This was all the Proof produced against Roger Mortimer The Lords hereupon judged him But afterwards Anno 28 E. 3. Numb 10. they reversed it as erroneous so that although the King's Testimony confirmed by the common Fame was 4 E. 3. received against Roger Mortimer yet it was afterwards adjudged Nul Accusament in the 28th of the said King E. 3. In that Parliament of 18 Jac. divers Witnesses were examined in open House in the Causes of Mompesson and the Lord Chancellor upon Interrogatories agreed on beforehand and divers at a Committee And it was resolved That none might be examined upon any thing that might accuse Whereupon the Earl of Southampton one of the said Committee signified That a Scruple did arise Whether Sir Ralph Horsey should be examined what Bribe he gave to the Lord Chancellor and upon the Vote it was agreed he should dissentiente Comite Dorset Eodem Anno The Lords did find that the Testimony of divers of the House of Commons was necessary touching the Complaint against Mompesson and therefore sent a Message to this effect The House of Commons before their Complaint exhibited against the Lord Cobham and Doctor Feild for a Bribe concerning Egerton's Case 18 Jac. examined one Davenport but not upon Oath The Lords when they had examined Davenport found that the Case was not so foul as he related it unto the Commons and therefore sent his Examination again unto them and then punished him for his false Relation CHAP. V. The Judgment FIrst Unto whom the Judgment belongeth and the King's Assent and of the Presence of the Spiritual Lords the Commons and the Judges Secondly The Judgment it self and by whom it was demanded and by whom rendred In making of our Antient Laws the Commons did Petere the Lords Assentire and the King Concludere So in Judgments on Delinquents in Parliament the Commons might accusare petere Judicium the King assentire and the Lords only did judicare §. 1. That the Judgment belongeth only to the Lords appeareth by all the old Records that I have seen prout 4 E. 3. against Mortymer The Earls Barons and Peers did Award and Judge by assent of the King c. 7 H. 4. In the Case of the Earl of Northumberland Protestation was made by the Lords That the Judgment belonged unto them only For the clearing of this Point That the Judgment belongeth to the Lords only vide the Protestation of the Commons 1 H. 7. which excludes the Commons from any Right thereunto viz. On Monday Novemb. 3. The Commons made their Protestation in manner as they did in the beginning of this Parliament and then further declared to the King That no Record in Parliament be made against the Commons That they are or shall be Parties to any Judgment given or hereafter to be given in Parliament Unto which it was then answered by the Archbishop of Canterbury by Command of the King That the Commons are Petitioners and not Demanders and that the King and the Lords have ever had and of Right shall have the Judgment in Parliament in manner as the Commons themselves have declared saving in Statutes to be made and in Grants of Subsidies and the like though to be done for the common profit of the Realm the King will have especially their Advice and Assent And that this Order be held and kept at all times to come This excludes the Commons from all Right to Judgment But whereas it faith the Judgments in Parliament belong only to the King and Lords That is to be understood touching the King's Assent only as apppeareth by the Replication of the Parliament in this Point in 2. H. 5. which was thus In the Parliament at Leicester 2 H. 5. Numb 11. Tho. Earl of Salisbury Petitioneth to reverse a Judgment in Parliament against John Earl of Salisbury his Father in 2 H. 4. and one of the Errors assigned was for that the Judgment was not given by the King but by the Lords Temporal only whereupon the Earls of the Parliament at the King's Commandment gave Copies of the said Judgment of 2 H. 4. and of the said Errors assigned unto the Kings Serjeants at Law then present Ad sequentem solutionem Juris Regni in hac parte avisarentur Super quod Servientes ad Legem crastino die Domino Regi ac Dominis Spiritualibus Temporalibus praedictis hoc in Parliamento petierunt scrutinium pro Domino Rege in hac parte Quibus dictum erat ex parte Domini Regis Quod ipsi procederent ulterius absque aliquo scrutinio habendo quoad declarationem judicium super supradicta c. And afterwards Day was given at the next Parliament which was held at Westminster eodem Anno 2 H. 5. In which Parliament the said Judgment of 2 H. 4. being examined and discussed at full videbatur tam dicto Domino nostro Regi quam etiam Dominis suis antedictis c. quod idem Judicium Declaratio praedicta versus eundem Johannem c. sunt fuerunt bona legalia
the Particulars in form of a Charge they were sent to the Lord Chancellor and his answer required to each particular In the same manner in the same Parliament they accused John Bennet Judge of the Prerogative Court of Bribery and Corruption in his Office In the same manner they accused and impeached Lyonel Earl of Middlesex and Lord Treasurer of England of Bribery and Extortion and Impositions on French Wines and Grocery which being reported to the House a Committee was appointed to consider of the Commons complaint and also of a Committee who had reported to the House a great want of Powder in the Stores through the Lord Treasurer's negligence A Committee appointed to consider thereof did after many Examinations taken draw up out of the whole Complaint of the Commons a Charge against him as also out of the Report of the Committee for Munition touching the want of Powder and of a Complaint made to the House by Sir Thomas Dallison and of some Misdemeanors whereof they are informed in the great Wardrobe and Court of Wards Which Charge the House sent unto the Treasurer and required his Answer 21 Jac. In eodem Parl. 21 Jac. The Commons at a Conference accused and impeached by word of Mouth the Bishop of Norwich of some Misdemeanors which being reported to the House the said Bishop made a present Answer thereunto as it was In the Parliament 1 Car. 1. Febr. 6. The Commons at a Conference accused and impeached George Duke of Buckingham of many Misdemeanors and delivered their Declaration in Writing that the said Duke might be put to his Answer § 2. The second manner of Accusation is Ex parte Domini Regis which is threefold The two first are immediately from the King and the third from the Commandment of the Lords by a formal Information exhibited in Parliament by the King's Attorney or Council learned as was that of E. 3. against Roger Mortimer Earl of March and divers others and 4 R. 2. against Sir Ralph Ferrers K t and 1 Car. 1. against the Earl of Bristol By the King's Commandment either upon the Petition of the Delinquent and upon the return and view of any the Proceedings taken elsewhere as against the Earl of Northumberland and Lord Bardolph upon former Proceedings against them in the Court of Chancery And 2 H. 6. upon request of the Commons against Sir John Mortimer Knight indicted in London In these Cases no Articles are exhibited Ex parte Domini Regis as in the former By Articles exhibited Ex parte Domini Regis Ex parte Dominorum against such as the Complaint is made upon in general by the Commons prout 1 R. 2. against Gomeniz Weston and Alice Peirce 7 R. 2. against the Bishop of Norwich and divers others Which Articles though drawn and exhibited Per mandatum Dominorum yet were the Parties charged therewith Ex parte Domini Regis Of Accusation by Information Ex parte Domini Regis In Rot. claus 4 E. 3. There is a Proclamation of the death of Edmond Earl of Kent where it is said certain Letters of his containing Treason were shewed to the King wherefore he was Arrested and freely acknowledged the same before the Earls Barons and other Grandees and Nobles of the Realm in the Parliament at Winchester 4 E. 3. Here appears plainly that Articles of Treason are exhibited in Parliament against the Earl of Kent In the next Parliament in the same year Edmond Son and Heir of the said Edmond exhibited his Petition praying the King that the Record and Process whereupon the said Earl was put to death might be brought before him in Parliament and if Errors be found that Right be done Numb 11. The which being read before the King Prelates Earls Barons and other Grandees in the said Parliament the King by his Royal Power and Dignity by assent in Parlialiament repealed the said Judgment Numb 12. Note That in this Repeal no Error was alledged nor any Exceptions taken for this that the Lords proceeded upon the Articles only which were objected against him the said Earl This is out of the Close Roll. The first Precedents recorded in our Parliament Rolls of Accusations in this kind are these of 4 E. 3. in the Parliament at Westminster which are added at large amongst divers others at the end of this Discourse the effect whereof doth follow viz. These are the Treasons Felonies and ill Deeds done to our Lord the King and to his People by Roger de Mortimer and others of his Covin reciting them all and concludeth thus Whereas our Lord the King doth charge you the Earls Barons and other Peers of this Realm that for as much as these things touch him principally and you and all the People of this Realm That you do unto the said Roger right and lawful Judgment as is fit for such an one to have who is very guilty of all the crimes above written for that he believed the said things are notorious and known for truth unto you and to all the People of the Realm Numb 1. The followeth the Judgment against him Item In the said manner our Lord the King charged the said Earls Barons and Peeres to give right and lawful Judgment on Simon de Bereford Knight who was ayding and counselling unto the said Roger de Mortimer in all treasons and ill deeds for which the said Roger was so awarded and done to death as the thing that is known and notorious to the said Peers as the King believeth Then followeth the Judgment against him also Then followeth the Judgment against John Matrevers Thomas de Gurney and William de Ogle Numb 5. But no particular accusations are recorded against any of them unless they were comprised in those general words of that against Mortimer viz. And other of his Coyn. For some of the same Crimes are mentioned in the Judgments yet no doubt but the Kings Attourny did exhibit Articles against every of them upon which the Lords proceeded to Judgment Here I do ingenuously confess my own Error when I said that this Judgment against Roger de Mortimer was afterwards reversed for that he was put to death without any Accusation which I conceived to be so upon first view of the Repeal thereof Anno 21. E. 3. Numb 10. Where the Petitioners Roger de Mortimer the Grandchild assigneth for that the said Earl was put to death and he disinhereted Sans Accusament Et sans estre masone in Judgment ou en Respons By which words sans accusament I gave you to understand that the Articles were no accusation whereas now upon better Consideration I do find that these words do intend no accusation by witnesses or otherwise to prove the said Articles objected against him For these Articles are a legal accusation in Parliment and frequently used as appears by many Precedents of the like nature But there was no other proof offered by the Lords to prove the same then that the King believeth them
said Mortymer having notice thereof withdrew himself among the wild Irish where the same Serjeant nor any other Officer of the King 's durst come for fear of Death Wherefore and for that his Offences are notoriously known both to the Lords and them they prayed Judgment c. The King the Lords and the Procurators of the Clergy considered of the Request of the Commons with good deliberation and then the Lords with the said Procurators by the assent of the King and Commons did award that Proclamation should be made through England and Ireland commanding the said Tho. Mortymer to render himself in proper Person to the King in what place soever it shall be in England within three Months after the 23th Day of December next coming to be at his Answer and they farther awarded That if he came not c. that then he shall be judged Traytor and Convict of of all Treasons whereof he is accused and shall forfeit c. Then the King adjourned the Parliament and the Appellants to the 15th of Hilary next at Shrewsbury on which Day the said Appellants declared to the King That it was awarded that Proclamation should be made c. ut supra The Commons did the like And for that the said Tho. Mortymer came not they had judgment In 7 H. 4. The Lords agreed this Judgment against the E. of North. and the Lord Bardolph who were fled to the Rebels in Wales and Proclamation ut supra throughout England At the day prefixed they examined the Returns of the Proclamations in the presence of the Commons and so the Judgment was agreed on in their presence also and so it ought to be in all Cases of Life and Death And finding a small Error they awarded new Proclamations in London only and the Return thereof was again viewed and considered in the presence of the Commons and then on the next day Judgment was given Eodem Anno 21 R. 2. The Lords Appellants accused also the Duke of Gloucester of Treason and although they knew he was dead they prayed the King that he might be brought to his Answer Whereupon the King sent his Writ to the Council of Calice unto whose Custody he committed the said Duke to bring him into the Parliament to his Answer The Captain returned his Writ That the Duke is dead the which Writ and Return being read the said Appellants prayed Judgment and the Commons shewed That the Dukes Levying War against the King's Person is notoriously known to all the States of Parliament and therefore they desired Judgment also and had it And what may not the whole Parliament do when they joyn in one Yet notwithstanding the King fearing some Error as it seems the Lords Appellants besought the King that if there were any thing on Record be it by Confession or otherwise which concerned their Appeal that it might be openly known and shewn in full Parliament Whereupon by the King's Commandment was read a Commission granted unto William Richal Justice of the Common-Pleas and a Confession of the Duke of Gloucester made before him by vertue of the said Commission yea and Richal himself being commanded did justifie that the Duke did write the Confession with his own hand in his absence and afterwards read it unto him so careful they were to have something to supply an Answer I marvel that Richal was acquitted of his Proceedings herein at the next Parliament of 1 H. 4. where he affirmed that much of this Dukes Confession was altered after he had returned his Commission He well deserved to die in that he spake not of it Yet there is one Precedent directly contrary to all this viz. 11 R. 2. in that Appeal which happened on this occasion The aforenamed Duke of Gloucester and four other Lords went to the King and accused the Duke of Ireland the Archbishop of York Michael de la Poole and others of Treason the King adjourned them to the next Parliament promising them Justice there and in the mean time conveyed away the Parties accused and then by Proclamation Part 8. fol. 603. in the next Parliament 11 R. 2. the Articles of the Appeal being read the Duke and other Appellants offered to make proof thereof and required that the Parties appealed might be brought to their Answers and for default of Appearance demanded Judgment Whereupon the King did deliberate with the Lords and commanded the Justices and other Sages of the Law to give their best Counsel to the Lords how to proceed rightly in this Matter of Appeal who after Consultation therein had answered the Lords That they had seen and considered the Tenor of this Appeal which they said was in no point made and declared according to the Order of the Common or Civil Law But they gave no Answer touching the Demand of Judgment for default of Appearance whereupon the Lords deliberated and after by the Lords assent declared that this Cause committed by the Peers against the Person of the King and State of the Realm shall be determined in the Parliament only and by no other Law than by the Law and Course of the Parliament And that it belongs to the Lords only to judge in such Cases And with the assent of the King they did judge the same Appeal and the Process thereupon depending to be good according to the Law and Course of Parliament Then the Lords Appellants proceeded and desired to have the fault of Appearance recorded and Judgment given and so it was So likewise 21 R. 2. After the King had given the full power of Parliament to determine all Matters begun into the Hands of twelve Lords or six and six Commoners or any three He adjourned the Parliament from Westminster to Shrewsbury in 15 Hil. and there on March 22. It was shewed to the King how that Robert Possington was impeached at the Parliament at Westminster for being with the Duke of Gloucester in levy at Herring An. 11 R. 2. For which the said Duke was adjudged as Traytor and therefore they brought the King to ordain the like Judgment against Robert Possington though he was dead Whereupon our Lord the King by the assent of the Lords and Knights of Counties having power c. awarded the said Robert guilty c. And that he shall forfeit c. But these extraordinary Precedents cannot lead us into the ordinary course of Proceedings and I alledge them only so as their Errors may be avoided § To conclude it is the just and constant Course of Parliament to bring the Party accused to his Answer yea though he fly Justice yet to send out Proclamations into the Countries that he appear at a Day or else such and such Judgments shall be given against him I confess this Course was omitted in the Judgment against Mompesson 18 Jac. and haply it was not then thought upon the Judicature of Parliament being so long out of use and therefore that cannot be alledged as a leading Precedent And in