therefore they shall by their Proxie make their Procurator and depart the House the party indited shall be put to plead to the inditement whereunto if he plead Not guilty he shall be thereof tried by his Peers and first the most puisne Baron shall be examined of his verdict by the Lord Steward and so in order until all they man by man have delivered their Opinion of the matter either in convicting the person standing accused before them or by clearing and acquitting him of the crime if by their verdicts he be thought guilty of the offence thereof is made an Act which when it hath the consent of the King it is then esteemed a Judgement and the Offender thereby is attainted Herein is to be noted that this verdict of the Lords is not upon their Oaths but upon their Honour for persons of so high degree should have so great care for the preservation of their Honour as themselves or any other have for the safe-Guard of their Souls which is admitted in that and in all other Attaynders per Pares by the Peers as well for that they are in that place not onely as Triers of the Fact but also Judges appointed over the fault and never was it used that Judges should verifie their sentence upon attestation thereof upon their Oaths Secondly in this manner of trial they must think that the bread which is broken unto others by them may by the just Judgement of God in like measure be broken unto themselves in that he whom they censure was in equal degree unto themselves Thirdly also for that where the Law requireth at the hands of other persons an Oath it ordaineth that Barons should regard their Honors Secondly it is to be noted that the party so arraigned in Parliament ought to be called to answer for himself for the Law of England is not so unreasonable to condemn any that will defend himself and it hath heretofore been noted as an error in the judgement of the Parliament 21 E. 3.46 b. when they have given a judgment in the cause of any private person he being not called thereunto and that in a civil matter of much less moment then is the cause of life and death wherefore if the party may be had and do not willingly and wilfully absent himself he is thereunto called to answer and therefore the Parliament in 37 and 38 H. 8. was freed of fault herein upon the Attainder of the Duke of Norfolk he then being in the Tower for that it was signified by the Lord Burghley Lord Treasurer in the Star-chamber when as Philip the last Earle of Arundel was called to answer in the Star-chamber to an undutiful Letter written by him to her Majesty that the said Duke was sent unto and would not come to the Parliament and the said Lord Treasurer affirmed that he then being of the lower House was sent thither with others see for this 1 Mar. Dyer 93. p. 24. The Lord high Steward giveth the Judgement upon Attaynder of treason 1 H. 4.1 a. 13 H. 8.12 a. as appeareth by the Judgment given in Parliament 21 R. 2. n. 15 16. The Bills of Attaynder in Parliament are intituled Placita Coronae coram Domino Rege in Parliamento suo Errours in Parliament reversed Now touching the manner how errors in the Kings Courts committed are reversed in Parliament I shall be very brief First the parties that are grieved through any erronious judgment given against them 22 E. 3.3 a. 12 Ass p. 22. 2 H. 7.19 ought to make their petition un-the King or Monarch that it would please him to permit that erronious judgement as is given against them in such Courts from whence they cannot further appeal may be in Parliament reviewed and reversed This their Petition ought to contain the effect of their grief and ought to be endorsed Let right be done unto the parties In this manner Soit Droit fait as Parties Hereupon the Lord Chancellor of England shall make a Writ of error 1 H. 7.19 n. directed unto the Judges of such Courts where the error was committed and now to be reversed by the Parliament by vertue of which writ the Lord chief Justice of England shall in person bring before the Lords in the higher House the said Petition the said Writ of error and the Rolls wherein is contained the judgment and proces wherein error is supposed H. 7.19 2 E. 3.3 and shall there leave the same petition writ and the transcript of the said Record but not the Record it self with the Clerk of the Parliament for that the Record it self shall be brought back again into the said Court for these Reasons 8 H. 5. f. Errour 88. 23 Eliz Dy. 375. First because these Rolls do concern other matter Secondly because if judgment should be there affirmed then the inferiour Court may have Record whereupon to a ward Execution And lastly for that it is a Rule that when a Record is sent from an inferior Court to a higher Court it is never remanded so that if the former judgement should be affirmed in the Parliament and the Parliament after dissolved the party plaintiff should be without remedy wherefore the record is brought back again as aforesaid 1 H. 7.20 And thus the said Petition indorsed the Writ of Errour and the Transcript remaining in the hands of the Clerk of the Parliament the matter shall be signified unto the Lord Steward by whom together with the other Lords Spiritual and Temporal 22 E. 3.3 a. and with the Iudges the same shall be determined or otherwise the King may appoint out a Commission and thereby assigne certain Earles and Barons who together with the Iudges shall determine the same but the Commons shall not intermeddle therewith moreover after that the Transcript is examined with the Record and that the Record is sent back to the former Court the party plaintiff ought to assigne his Error in writing and thereupon shall have a Scire facias against the defendant ad audiendum errores which writ shall be returned the next Parliament ensuing for that the common day of a Scire facias is forty days but because it is uncertain whether the Parliament shall be dissolved or no before that time therefore the said writ shall be returned the next Parliament 8 H 5. f. tit Error 88. but if the writ be sued forth at a Session of Parliament the same shall be returned the next Session after the said errors assigned and the Scire facias pursued the plaintiff shall not enter into Recognisance to satisfie the judgment 1 H. 7.20 if it shall happen to be given against him or to render his body to prison in such manner as is done in a writ of error in the upper Bench sued upon an erronious judgment given in the Common place but he shall still remain in prison for if the party plaintiff should be at large upon such recognisance acknowledged in
Parliament then if the Parliament be dissolved the party is at large and the other without remedy If the King upon such Petition do appoint Commissioners for the determining of the Errors and upon the Scire facias the parties do appear 22 E. 3.3 if the Parliament be dissolved before the cause determined the Commissioners after the Parliament is ended cannot proceed to the determination of the matter or do any thing therein but they must expect a new Session of Parliament If judgment be given in Parliament and that also happen to be erronious there is no Court that can redress this Error but the Parliament it self for as much as it is the highest Court of the land and there is no higher Court in which he may have remedy 7 H. 6.29 a. As touching the Courts whose judgments are to be rereversed in Parliament First it is to be noted That all erronious judgments given in the Kings Bench touching matter and substance of Law or matter in fact were by the course of the common Law to be reversed in Parliament 7 H. 6.28 because it was before the King himself and therefore it was ordained by several Statutes made to avoid delay of suits 36 E. 3. cap. 10. 50 E. 3. 1 R. 2. 2 R. 2. that once every year a Parliament should be holden But now by a Statute made in the twenty seveth year of Queen Elizabeth it is ordained in the eighth Chapter that all erronious judgments in matters in Law shall be considered and reversed by the Iustices of the Common Place 27 Eliz cap. 8. and the Barons of the Exchequer or by six of them but if the error in the Kings Bench be in matter of Process or proceeding 7 H. 6.28 2 R. 3.22 27 H. 8.16 3 Eliz. Dyer 19 b. p. 93 the same might alwayes have been reversed in the said Court of the Kings Bench although if judgment be there given upon a plea which is before discontinued the same cannot be reversed but by Parliament In all cases in the Chancery wherein the Lord Chancellor is to adjudge according to the common Law 16 E. 3. fitz tit brief 651. Com. 393. 18 E. 3.25 17 Ass p. 24. 42 Ass p. 22. 27 H. 8.16 b. as in the repeal of Patents actions against priviledged persons Audita Querela upon Statutes c. There if erronious judgments be given the same is to be reversed in the Kings Bench 14 Eliz. Dyer 315. P. 100. although some opinions in other Books have been to the contrary 37 H. 6.14 a. but in matter of conscience their decrees are reversible by themselves Thus have I briefly touched upon several things which upon some other occasion I shall inlarge Touching such matters as are proper for the Parliament you shall see in an Excellent Book lately printed being an exact Abridgement of the Records in the Tower of London from the Reign of King Edward the second unto King Richard the third of all the Parliaments holden in each Kings Reign and the several Acts in every Parliament Collected by the learned payns of Sir Robert Cotton and revised and published by the unwearied labors of VVilliam Prynne of Lincolns-Inne Esquire a Book worthy of the Study of all the learned Gentlemen of this Nation I conclude with my humble prayer that the all-wise God would grant to this Nation a setled Government and a quiet State that our English Parliaments may recover and enjoy their ancient honour and lustre John Doddridge From my Chamber in the middle Temple the third of Dec. 1657. The several Opinions of sundry Antiquaries touching the Antiquity Power Order State Manner Persons and proceedings of the high Court of Parliament in England THere is no king in the world nor any subjects of any king that have a greater and more binding and yet a more free Council then this in our Parliament in England whose general Acts since all men must take knowledge of it may be profitable to every man to understand the Dignity Order and Antiquity thereof Soveraignty the highest degree of Honour is imported in the very Summons For the king himself jure Regio as a Flower of the Crown hath the absolute power of calling and dissolving it Order it self stands represented when the Court is sitting such is the Majestie of the Prince the Gravity of the persons their State in proceeding But this being often seen and so best known and the other unknown to many that sit and often see the order of this Court therefore we will treat principally of the Antiquity Nature Power and Jurisdiction of this high Court of Parliament And first of the Appellation the word Parliament Some derive it from Peers à potiore parte quasi parium Conventum or as others say quasi parium lament ' others more probably from the French word parler or that of the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to treat and confer freely The French Histories say that this Name in this sense began at the Assembly of the Peers of France anno Dom. 1200. but it appeareth to be more ancient with us then of that time for Ingulphus who died 1009. saith In publico nostro Parliamento c. taking it there for a Meeting or Chapter of the Abbot Ingelo King of Polonia in the Polish State calleth the Assembly Generale Parliamentum This may raise a doubt of the former etymologie of it from the French word parler But no doubt the word was brought into the Realm by the French Monks and after applied by the Statists in the time of H. 1. to the General Council of the Kingdom But the like Assemblies as Parliaments are being much more ancient then the Parliament underwent these names of old times The Britains called them Kyfrithin because Laws were therein made by the English Saxons in their English Graduisis a Council sometimes Wittena Mota a Meeting of wise men Sometimes of the Greek word Synodos The Latine Authors of that Age call it Consilium Magnatum Curiae altissima praesentia Regis Prelatorum Procerumque Collectorum as appeareth by the Charter of Withlasias anno 833. and of King Edgar anno 966. And now to step a Nomine ad Rem before the time of Soveraignty Natures law directed men to the love of Society and care to preserve it and gained free consent even of lawless men to admit of certain Customs as Laws from hence framing matter of Form for a Commonwealth But new springing mischiefs standing remediless by the elder Customs caused for remedy thereof the calling of yearly Councils the original no doubt of our after-Parliaments And it shall appear that our Kingdome from as grounded Authority as any other Nation can prove of old the practise of these great Assemblies then called Counsels now Parliaments Those Sages the Druides most proper to this Isle had yearly Conventions of their noblest and best people in a middle consecrated Plot of this Kingdome punishing with proscription from their Sacrifices whoso
Prelates Nobles and Commons to consult for the publick Weale and as he thinketh before that day the King never called the people to consult and make Laws and he deriveth the name from the French word Parler There is an ancient Roll in some mens hands which describeth the whole State and order of the Parliament and the Title of it is De modo tenendi Parliamentum And it is further described Parliamentum Regis Angliae Angles summoneri tenebatur temporibus Regis Edwardi filii Ethelredi qui modus Recitatus fuit Coram Willielmo Duce Normaniae Conquestore Rege Angliae per ipsum approbatum By this it should seem that Parliaments as they are described in that Roll were held in the time of Edward the holy for he was the Son of Etheldred for Edward the elder was the Son of Alphred and this Edward the holy lived about the year 1043. And by this it should also seem that the Conqueror held a Parliament In this it is first set down what Clergy-men were called which were not onely Bishops but Abbots and Priors that held per Baroniam by which I gather that they came not to that place as they were spiritual men but by reason of the temporal honours they enjoy in the Commonwealth for they have a place in the convocation-house in respect of their spiritual function and in that also they are a part in the Court of Parliament We read of a Parliament in 35 E. 1. in which were sixteen Abbots and eight Priors but how many of those were of the higher house I dare not define or rather were of the house ingeneral for I know it is not clear that there was not then a distinction of houses The first Title is De Clericis the second De Laicis the third de Militibus the fourth De Civibus the fifth De Burgensibus all other circumstances of place times orders and such like are recited which I omit to remember particularly because I know it is a thing well know to all and that it differeth from the order of that Court now used The Court of Parliament hath a double power the one to consult by way of deliberation for the good Government of the Common-wealth and so it is Consilium non Curia another power it hath as a Court in Administration of Justice The principal purpose of that Assembly seemeth to be for Consultation for the Writs are ad Consultandum deliberandum but being Assembled they may hold Plea of causes But this difference I find that in criminal causes both the upper house and lower house intermedleth therewith as in Attainders onely and the spiritual Lords do all go out of the house and give their assents by Proxie 10 E. 4.6 But in civil causes as in VVrits of Error sued there out of the Kings Bench the upper house onely medleth as is well described in the case 1 Hen. 7.19 20. in a VVrit of Error sued by one Flowerdue on a Replevin wherein Judgment was given against him in the Kings Bench. But we have an express Authority in the 4 H. 7.18 That in a criminal cause the Commons must assent for there the King and Lords did attaint one and nothing was said of the Commons therefore by the Opinion of the Justices the Act was held void and the party restored The Peeres of Scotland were wont to come to our Parliament for in 39 E. 3.35 in a VVrit of ravishment de Garde against Gilbert Umfrevil he demanded Judgment of the VVrit because he was Earle of Anguish and not so named in the VVrit Anguish saith the Plaintiff is out of the Realm I but said the Defendant I am summoned to Parliament by that name and the VVrit was abated this proveth that the Peeres of Scotland came to our Parliament for Justice but Littleton saith 20 E. 4.6 that we shall implead an Earle or Duke of France by the name of Knight onely I need not dilate of the nature of the Parliament that it is a body politique or of what parts and members it consisteth for that is very well understood of all learned men neither of the order of it at this day for most know that of their own experience the priviledges of it are great and may more safely be discussed what they are without the house in regard of others then what they are in the house for their liberties there Of the Antiquity of Parliament THat which we in English call Parliament I suppose and know to have taken the name from the French or Norman tongue sounding upon the word Parle or Parler to speak or discourse In Latine I find that it was called before the Conquest by two names the one called Synodus taken from the Greek which is used most for the Assembly of spiritual men to treat of Divine causes and so was practised when Augustine came to Canterbury where the King of Kent called Ethelbert gathered his Nobles and people to understand the message and preaching of Augustine and again it is termed Consiliatio as hereafter I shall set down and hereafter in that sence in Anno Dom. 833. Withlasias Dux Wiviorum a great Lord or Peer amongst those of the Frennes called Girrii or Girrogii in his Chapter for the foundation of the Abbey of Ramsey in which he termeth Egberte King and Ahelwolf his son to be Dominos suos he dateth his said Charter thus Datum apud Londini Civitatem ubi omnes Congregati sumus pro Consilio Capiendo Contra Danicos piratos littora Angliae assidue infestantes This mentioneth Ingulphus so as it appeareth when any imminent peril drew neer for the hurt of the Commonwealth that then there were called the Nobility and wisemen called in the History of Eli Duces Principes Satrapae Rhetores Causidici also Convenerunt Agelinum Aldermanum Episcopos Oswynum omnes meliores Concionatores de Com. c. And the same Author sheweth that Brithmothus a most Noble Duke of Northumberland was called Alderman idest senior vel Dux qui synodo magna Constantia restituit Regem Edgarem alios Monachos dicens nequaquam se ferre posse ut Monachi ejicerentur de Regno qui omnem Religionem tenuerunt coluerunt in Regno King Offa in his Charter granted to the Abbey of Chertsey hath these words Hanc libertatem omnia praedicta praefatum Monasterium pertinentia in synodali conventu in loco qui nominatur Aeccleate testes consistentes concensi subscripsi c. in historia Chertsey penes me remanen Canutus the Dane beginning his Laws sheweth plain that he made the same by the Advice and Councel of a Parliament and beginning thus Haec est Consiliatio quam Canutus Rex meditatione vel decreto suarum sapientum consiliatus est cum suis sapientibus apud Wintoniam c. When I observe an old written Copie with a Comment thereupon they are expounded thus Consiliatio id est Institutio multorum facta Consilio