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In Cases Capital,* 1.1 the Judges are to be present also, otherwise it is not a Full Court; but they have no Voyce. And though there be divers Precedents that complain of the Prelates, prout 21 R. 2. & 2 H. 5. and this last of the Commons, yet there is not one Precedent that finds fault with their Absence in these Cases; for they are not tractare cum caeteris Mag∣natibus, but cum caeteris de Concilio.
Here may be Objected that which Tresilian and other Judges answered to one of the King's Questions, 11 R. 2. touching the Judgment of Michael de la Poole, That the same Justices and Ser∣jeants would not give the same Judg∣ment, because it seemeth to them, that the same is irrevocable, as erroneous to every part. Vid. Print. Stat. 21 R. 2. Tresilian was much mistaken, as much as in the other Answers, whereby he determined that to be Treason; and so here he gave his Advice, not his Con∣sent: And yet he saith, he gave his Consent. Read but a little further, and you shall find in the very same place, as followeth; Which Questions and An∣swers, as well before the King, as before the Lords and Commons, were read and perceived; and it was demanded of all the States of Parliament, how they thought of the Answer? And they said, They thought the Justices made and gave the Answers duly and lawfully, as good and liege People of the King ought to do.
And in the same manner Sir Tho. of Shelton, Learned in the Law, and Will. Hawkford, and Will. Beechley, the King's Serjeants, being demanded by the King,
of their Advice, &c. and my Lord Will. Thurning of the Common Pleas, &c. That the Declaration of Treason not declared, belongeth to the Parliament: And if he had been demanded, he would have said in the same manner.
And in like manner my Lord William Rickill, Justice of the Common Bench, and after the coming of my Lord William Clopton, Chief Justice, he said thus; Wherefore the said Answers be judged good, and affirmed sufficient in the said Parliament.
Whereupon the King, by the Assent of the Lords Spiritual and Temporal, and the Procurators of the Clergy, and the said Commons, and by the Advice of the said Justices and Serjeants there be∣ing, It was Awarded and Adjudged, &c.
Here you see the Manner of the Judges Assent, viz. their Advice only. Nor shall you find their Assents to any Statute; yet the Judges have ever used to be pre∣sent at the Trials in Parliament upon Life and Death, 5 H. 4.
The King delivered the Earl of Nor∣thumberland's Petition to them. And at the Trial of any Peer out of Parliament, the Judges are ever present on that Day;
and their presence is necessary for their Counsel to the Lords; but their Assent is not necessary to the Judgment.
The Pre∣sence of the Judges.