the Eyre, &c. Which petition seemeth to his Council to be prejudicial unto him and in disinherison of his Crown if it were so generally granted. His said Commons, not willing nor desiring to demand things of him which should fall in disinherison of him or his Crown perpetually, as of escheators, &c., but of trespasses, misprisons, negligences, and ignorances, &c." In the time of Henry III. an order or provision was made by the king's council, and it was pleaded at the common law in bar to a writ of dower. The plaintiff's attorney could not deny it, and thereupon the judgment was ideo sine die. It seems in those days an order of the council board was either parcel of the common law or above it. The reverend judges have had regard in their proceedings that before they would resolve or give judgment in new cases, they consulted with the king's privy council. In the case of Adam Brabson, who was assaulted by R. W. in the presence of the justices of assize at Westminster, the judges would have the advice of the king's council. For in a like case, because R. C. did strike a juror at Westminster, which passed in an inquest against one of his friends, "It was adjudged by all the council that his right hand should be cut off and his lands and goods forfeited to the king." Green and Thorp were sent by judges of the bench to the king's council to demand of them whether by the statute of 14 Edward III., cap. 16, a word may be amended in a writ; and it was answered that a word may well be amended, although the statute speak but of a letter or syllable. In the case of Sir Thomas Oghtred, knight, who brought a formedon against a poor man and his wife, they came and yielded to the demandant, which seemed suspicious to the court, whereupon judgment was stayed; and Thorp said, "That in the like case of Giles Blacket it was spoken of in Parliament, and we were commanded that when any like case should come we should not go to judgment without good advice." Therefore the judges' conclusion was Sues au counseil et comment ils voillet que nous devomus faire, nous volume faire, et auterment nient en cest case:" Sue to the council, and as they will have us to do, we will; and otherwise not in this case. 18. In the last place we may consider how much hath been attributed to the opinions of the king's judges by parliaments, and so find that the king's council hath guided and ruled the judges, and the judges guided the parliament. In the parliament of 28 Henry VI., the Commons made suit: "That William de la Poole, Duke of Suffolk, should be committed to prison for many treasons and other crimes. The lords of the Higher House were doubtful what answer to give; the opinion of the judges was demanded. Their opinion was that he ought not to be committed, for that the Commons did not charge him with any particular offence, but with general reports and slanders." This opinion was allowed. In another parliament, 31 Henry VI. (which was prorogued) in the vacation the Speaker of the House of Commons was condemned in a thousand pounds damages in an action of trespass, and was committed to prison in execution for the same. When the parliament was reassembled the Commons made suit to the King and Lords to have their Speaker delivered; the Lords demanded the opinion of the judges, whether he might be delivered out of prison by privilege of parliament? Upon the judges' answer it was concluded: "That the Speaker should still remain in prison according to the law, notwithstanding the privilege of parliament and that he was the Speaker," which resolution was declared to the Commons by Moyle, the king's serjeant-at-law; and the Commons were commanded, in the king's name, by the Bishop of Lincoln (in the absence. of the Archbishop of Canterbury, then Chancellor) to choose another Speaker." In septimo of Henry VIII. a question was moved in parliament: "Whether spiritual persons might be convented before temporal judges for criminal cases." There Sir John Fineux and the other judges delivered their opinion: "That they might and ought to be;" and their opinion was allowed and maintained by the king and lords and Dr. Standish, who before had holden it. The same opinion was delivered from the bishops. If a writ of error be sued in parliament upon a judgment given in the King's Bench, the lords of the Higher House alone (without the Commons) are to examine the errors; the Lords are to proceed according to law, and for their judgment therein they are to be informed by the advice and counsel of the judges, who are to inform them what the law is, and so to direct them in their judgment, for the Lords are not to follow their own opinions or discretions otherwise. So it was in a writ of error brought in parliament by the Dean and Chapter of Lichfield against the Prior and Covent of Newton-Panel, as appeareth by record. See Flower Dew's case, p. 1, h. 7, fol. 19. |