John Selden, Of the judicature in parliaments a posthumous treatise, wherein the controveries and precedents belonging to that title are methodically handled.

§. 5. Touching the Presence of the Com∣mons in Cases Capital.* 1.1

I observe the Presence of the Com∣mons to be necessary at the Parties An∣swer and Judgment in Cases Capital.

Now one Reason for the King's Assent, and the Commons presence in such Judg∣ments, may be this; Both King and People are to be satisfied for the death of the Subject; therefore all Trials for Life and Death, are publick in the full Assembly of the Court: And how can it be said in Full Parliament, when the Commons, one of the States, are ab∣sent?

For this purpose the Court of Requests (called Camera Alba) was prepared for such Trials, where both Lords and Com∣mons might meet more conveniently; yet though the Commons were pre∣sent at such times, they had no Voice there. But at their Return to their own Assembly, they considered among them∣selves, if the Proceedings were Legal; and might come again and shew it, and require a Rehearsing of that Cause: as they did at the Judgment of the Duke of Clarence, 18 E. 3.

Nor are the Commons to be present when the Lords do consider of the De∣linquent's Answer, and the Proofs, and do determine of their Judgment.

The Precedents are these.

10 R. 2. Gomeniz and Weston were brought before the Lords and Commons seaux a la blanch Chambre, and Answered on Friday, 27 Novemb. and there they were delivered to the Constable of the Tower, who was commanded to bring them again the next Morning. In the mean time, the Earls, Barons and Ba∣ronets assembled, and advised from the time that the said Answers were given

in Parliament on Friday until part of Sa∣turday to the hour of Three, of the things touching the Answer aforesaid, and then the Prisoners were brought in to the Par∣liament.

10 R. 2. Rot. de Pardonatione Haxei, 7 Febr. Anno praedicto, Praedictus Tho. Haxei coram Nobis & omnibus Dominis Parliamenti Nostri existentibus in Alba Camera adductus fuit, & Billa praedicta co∣ram praefato Thoma ibidem, per Praeceptum Nostrum lecta fuit, & Quaesitum fuit per Charissimum Avunculum Nostrum Ducem Aquitain & Lanc. Seneschallum Angliae, à praefato Thoma, si ipse dictum praefatum Communibus tradidit.

5 H. 4. The Earl of Northumberland was brought to his Trial on Wednesday; Then the Commons were present; but I do not find that they were present with the Lords between Wednesday and Fri∣day, when the Lords advised on the Earl's Petition. This Record mentions not where the Assembly was, Numb. 7. H. 4. Quint. of his Reign.

After the Lords had Awarded Procla∣mation against the Earl of Northumber∣land, and the Lord Bardolph to appear at

a Day, or Judgment to be given. The Commons not being acquainted there∣with, they came and prayed the King, they might have cognizance what was done touching the said Rebellions of Salop, and elsewhere-within the Realm: whereupon, New Proclamations were made, and the subsequent proceedings were done in full Parliament, in presence of the Commons; and the Record saith, upon the Request of the Commons. A Question hath been often asked, Whe∣ther the Commons did heretofore sit at Conference with the Lords? Which I cannot very well resolve; but verily be∣lieve, That at all these Arraignments the Commons did sit with the Lords.

10 R. 2. Gomeniz and Weston were brought before the Lords and Commons sitting in the White Chamber. The Words are, Devant les Seignieurs avant dits en plein Parlement, &c. But the Commons are here intended by the Words en plein Parlement. And so was the Commons Demand, that they may be tried before the Lords.

No other Records speak whether they did sit or stand.

In Judgments on Misdemeanors,* 1.2

The Presence of the Commons is not necessary, unless they impeach a Delin∣quent, prout 50 E. 3. And then they were present at all the Answers of those whom they Impeached, and demanded Judgment.

And when the Lords had rendred their Judgment against the Lord Lati∣mer, to be prisoner with the Marshal, and to make Fine and Ransom to the King, the Commons prayed the King, he might also be put out of all his Of∣fices, and especially from being Privy Councellor: Which the King grant∣ed.

And when the Lords had determin∣ed one part of the Complaint of the Commons against William Ellis, touch∣ing a wrong done to certain Scottish Merchants, the Commons prayed a ge∣neral Enquiry might be made of the Residue whereof they complained; which the Lords granted.

And when the Lord Nevil Answered, They required that one Richard Love might be examined, to prove that which the said Lord denied, and they depart∣ed;

but two of the Commons remain∣ed, and heard the Examination, and told the Lords, That the said Richard had related it to the Commons other∣wise the day before; which the said Ri∣chard denied. Then all the Commons came and justified it again, and there∣upon the said Richard Love confessed it, and on their Demands was commit∣ted.

This shews what Interest they have in their own Impeachments.

So in 10 R. 2. When the Commons had Impeached the Lord Chancellor, They were present at his Answer, and so often Replied, and enforced his Oath against him, and required him to be Committed, and so he was before Judg∣ment, but Bayled presently.

But if the Commons do only com∣plain, and do neither impeach the Party in Writing, nor by word of Mouth in open House, nor demand Trial to be in their Presence; In these Cases it is in the Election of the Lords whether the Commons shall be present or not.

And therefore when they complained of Alice Peirce, 10 R. 2. The Lords de∣ferred her Trial until the Departure of the Parliament, that is, till the Com∣mons

had leave to depart. And if the Commons presence be not necessary in such Cases where they complain, much less is it wherein they complain not; yet they have been present when they did not complain; but that was upon an extraordinary Cause, prout 7 R. 2.

A Fishmonger exhibited his Com∣plaint, first to the Commons against the Lord Chancellor, and afterwards to the Lords in Full Parliament, in presence of the Commons. But they were present no doubt at the Lord Chancellor's Re∣quest, That he might clear himself in Publick of the Slander, and so he did.

The Presence of the Judges.

In Cases Capital,* 1.3 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.

Notes

• * 1.1

  The Pre∣sence of the Com∣mons in Cases Ca∣pital.
• * 1.2

  The Pre∣sence of the Com∣mons not necessary.
• * 1.3

  The Pre∣sence of the Judges.