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A59089 John Selden, Of the judicature in parliaments a posthumous treatise, wherein the controveries and precedents belonging to that title are methodically handled. Selden, John, 1584-1654. 1681 (1681) Wing S2433; ESTC R10657 68,725 208

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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
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