in the first Instance, no Record being kept thereof. Then suppose Evidence be allowed, which is none, the Person against whom the same is given, is Remediless; these Evils may happen in the repeating of this Practise in the next Reign, tho' they cannot in the present.
Then this Method is not only against the general Tenor and Frame of the Common Law, but against divers Acts of Parliament and Declarations of this House.
Magna Charta, 9 H. 3. cap. 29. is express, per judicium parium vel per legem terræ, now the latter only refers to such Cases which are not Triable per jud' par': Besides, to make it the lex terræ, there must be Ancient and continual Usage; 22 E. 3. Numb. 30. shews that no new Practice can make a Law.
By 25 E. 3. cap. 4. 'tis enacted, That no Man shall be taken by Petition or Suggestion to the King, or to his Counsel, without Presentment, or by Process, or Writ Original at Common Law, and that none shall be put out of his Franchise or Freehold, but by due Course of Law before used. Here the one explains the other; by Writ or due Course of Law are taken for the same Thing, and both used in Contradistinction to Petition; the 28 E. 3. cap. 3. is the same.
Then the 42 E. 3. cap. 3. 'tis by due Process and Original Writ according to the Old Law of the Land; the 1 R. 2. Numb. 87. Cott. 162. no Suit to be determined before the Lords or before the Counsel, but before the Justices only.
But the 4 H. 4. cap. 23. is fuller, it recites, That in Pleas as well Real as Personal in the King's Courts, the Parties be made to come upon grievous Pain, sometimes before the King himself, sometimes before the King's Council, sometimes to the Parlia-[125]-ment, to answer thereof anew, to the Grievance of the Parties, and in Subversion of the Common Law of the Land, ' tis enacted, that after Judgment, the Parties shall be in Peace until the Judgment be undone by Attaint or Error; this is agreed and amplified 3 Bulst. 47, 115.
Here is Mention even of the Parliament's summoning Persons to answer, in Subversion of the Laws.
There are other Statutes not Printed, as 4 E. 3. Numb. 6. Cotton's Abridg. 7. and the same in 2 Inst. 50.
The Lords gave Judgment of Death without Indictment, upon some who were not their Peers, and agreed in full Parliament, that they should be discharged of so doing for the Future, and that it should not be drawn in Precedent, that the like should not be done on any but their Peers; 'tis a Declaration of the Lords, nay, tis an Act of Parliament, and penned in the same Manner, as 29 E. 1. Statute del Estoppel, at a Parliament agreed, 33 E. 1. by common Accord, and 9 E. 2. the King in Parliament by Advice of his Council, and these are held to be Statutes.
This was not only an Acquittal from the Trouble, but a clear Denial of the Power, as appears by the Words before, that they had assumed to themselves, and the Words subsequent, that the like should not be done again. The Complaint was, because it was Intermedling with Commoners after that Manner. Suppose this House should make an Order upon this Matter, which is a Law Business, and not of Equity, no Execution can be made of it but Commitment.
There is the 15 E. 3. now insisted on, Printed in the Old Statute Book, but omitted in this; 'tis in Cotton 28. 33. and 'tis thus: The Commons complained of Breaches of Magna Charta, &c. and pray Remedy; with this Conclusion, that every Man may stand to the Law according to his Condition; and the Lords pray, that Magna Charta may be observed; and further, that if any, of what Condition soever, should break it, he should be adjudged by the Peers of the Realm in Parliament, the next Parliament, and so from Parliament to Parliament, and it was enacted accordingly. This was specious, the same being only for the Breakers of Magna Charta, but in 17 E. 3. that whole Parliament, i.e. all the Acts of it are repealed; which Repeal seems designed for the Petitioners, for it Repeals the supposed Laws which make both their Title and this Jurisdiction which they would support. 'Tis observable what is said in the Repeal, that the Act was contrary to the King's Oath, Prejudice of his Crown and Royalty, and against the Ancient Law: And such is this, for here is no Use of the King's Writ, no Address to, or Command by the King for this Proceeding, nor any Mention of his Name in the Petition.
By 1 H. 4. cap. 14. Appeals in Parliament for Offences are declared against, as Contrary to Reason and the Constitution; this is such. This is not incident to
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