And it is further manifest, That this Complaint is utterly improper for your Lordships Examination, for that your Lordships cannot apply the proper and only Remedy which the Law hath given the Party in this Case, which is by awarding Damages to the Party injured (if any Injury be done) for these are only to be assessed by a Jury. And they, these Respondents, are so far from apprehending they have done any Wrong to the Petitioners in this Matter, that they humbly offer, with your Lordships Leave, to wave any Privilege they have as Assistants to this Honourable House, and appear Gratis to any Suit that shall be brought against them in Westminster-hall, touching the Matter complained of in the Petition.
And they further, with all Humility offer to your Lordships Consideration, That as they are Judges, they are under the solemn Obligation of an Oath to do Justice (without respect of Persons) and are to be supposed to have acted in this Matter with and under a due Regard to that sacred Obligation: And therefore to impose any Thing contrary upon them, may endanger the Breaking of it, which they humbly believe your Lordships will be tender of.
And they further humbly shew to your Lordships, That by a Statute made in the 25th of E. 3. cap. 4. it is enacted, That from thenceforth none shall be taken by Petition or Suggestion to the King, or his Council, unless by Indictment or Presentment of good and lawful People of the Neighbourhood, or by Process by Writ Original at Common Law; and that none shall be put out of his Franchise or Freehold, but by the Course of the Common Law. And by another Statute in the 28th of E. 3. cap. 3. it is expresly provided that no Man shall be put out of his Lands and Tenements, nor imprisoned or disinherited but by due Process of Law. And by another Statute made in the 42 E. 3. cap. 3. it is enacted, That no Man shall be put to answer without Presentment before Justices, or Matter of Record on due Process and Original Writ, according to the old Law of the Land.
[119] And the Respondents further say, That inasmuch as the Petition is a Complaint, in the Nature of an Original Cause for a supposed Breach of an Act of Parliament; which Breach (if any be) is only Examinable and Triable by the Course of the Common Law, and cannot be so in any other Manner; and is in the Example of it Dangerous to the Rights and Liberties of all Men, and tends to the Subversion of all Trials by Juries, these Respondents conceive themselves bound in Duty (with regard to their Offices, and in Conscience to the Oaths they have taken) to crave the Benefit of defending themselves touching the Matter complained of in the Petition, by the due and known Course of the Common Law; and to rely upon the aforesaid Statutes, and the Common Right they have of Free-born People of England, in Bar of the Petitioners any further Proceeding upon the said Petition, and humbly pray to be dismissed from the same.
Then it was after Debate ordered, That Counsel be heard at the Bar of the House on the said Petition.
Argument for the Petitioners i.e. The Plaintiffs in Error.—And afterwards upon the Day appointed for the Hearing of Counsel, it was insisted on, in the Behalf of the Petitioners, That here was a Right, and a Right proved, and no ways to come at it but this; that if a Bill of Exceptions be tendred and refused, this House can command them to do it; that this Proceeding of the Judges is to stifle the Matter of Law; the Writ upon the Statute must be returnable here, and cannot be otherwise; that this follows the Judgment into Parliament; that this House is to Judge of every Thing belonging to that Judgment; that if this cannot be done, there will be a Failure of Justice; that there have been Writs of Error upon Judgments, with the Bill of Exceptions annexed; that Damages to be recovered in an Action, gives no Reparation for the Office; that the Action must be brought before the Judges, and so it must be a Dance in a Circle; that as to the Judges Oaths, the Justices of Peace are upon their Oaths, and yet they may be committed; that this is not fit for a Jury to try, Whether the Judges have done well or ill in refusing to Seal this Bill of Exceptions: This Refusal is the Way to keep the Law within the Bounds or Walls of Westminster-hall, and effectually to prevent its ever coming hither; that this was not a Complaint of the Judges; that as yet they would not accuse them of a Crime, they only said, fac hoc & vive; hat the Court of King's Bench below doth the same Thing to the Judges in Ireland; they command others, and ought to be commanded; that they themselves send
