Collection made of Customs and Orders of the Lord's House and of their Privileges made out of Records And he presented that Collection to the House and desir'd it might be preserv'd as a Memorial whereunto men may resort as occasion should require and make use of it It was thereupon ordered by the House to be delivered to the Clerk to be kept for that purpose So that this was intended by the whole House of Lords to be a Standard whereby to measure and judge of their Jurisdiction and Privileges for the future I find the Title of that Committee Fol. 91. to be A Committee for searching for Precedents for Judicature Accusations and Iudgments anciently used in this High-Court of Parliament This shows it must be an ancient Usage or nothing Therefore late and modern Usage and Precedents are in the Judgment of the Lords of no great Weight to Entitle them to a Jurisdiction Moreover Fol. 105. of that Journal there is an Order made 27. Mar. 1621. for Collection of Money among the Peers to pay the Charge for searching for Records in the Tower and elsewhere and to have Copies of them certifi'd under the Officer's hands Every Earl and Viscount was to pay Forty Shillings and every Bishop and Baron Twenty Shillings I have perus'd that Book Entitled A Collection of Privileges or special Rights belonging to the Baronage of England What is meant by that Title appears by the Table to the Book which consists of these Heads following viz. 1 st Iudgments Of Offences Capital Fol. 11. b. 1 st Iudgments Of Offences not Capital Fol. 25. 1 st Iudgments Upon Writs of Error in Parliament Fol. 88. Another Head is The Lords appointing Judges out of themselves for Examination of Judgments in other Courts Fol. 95. I thought this last Head or Title might afford something to our purpose relating to Appeals Under this Head there is nothing mention'd but concerning Erroneous Judgments given in the Court of King's-Bench at Westminster or upon the Statute of 27 Elizabeth Cap. 8. Of Judgments given in the Exchequer-Chamber by the Judges of the Common-pleas and the Barons of the Exchequer upon Error to Examine Judgments given in the King's-Bench from whence Error lies also before the Lords by the express words of that Statute which no doubt is therefore a very Legal Power and Jurisdiction in the Lords being Exercis'd in the method directed by Law as before is observ'd The Book of this Collection expresly takes notice That no Writ of Error lies in Parliament upon a Judgment given in the Court of Common-Pleas till that Judgment have been Revers'd or Affirm'd in the King's-Bench As it was answer'd in Parliament in the Case of the Bishop of Norwich Rot. Parl. 50. E. 3. Articl 48. The like Resolution did the Lords give after Hearing all the Judges and long Consultation and a referring the Consideration of that matter to a numerous Committee of the Lords in a Case of the late Earl of Macclesfeld wherein that Earl was Plaintiff in the Exchequer in an Action of Slander and Judgment there in that Court given against him whereupon the said Earl since this last Revolution sued Error before the Lords passing by the method directed by the Stat. of 31. E. 3. Cap. 12. for Suing Error upon Judgments given in the Exchequer And the Lords were upon the very point of Reversing that Judgment in the Exchequer but being by one of the said Judges then also sitting on the Upper Wooll-sack put in mind of that Stat. of E. 3. they did forbear to proceed to do any more upon it referring it to the Order limited by that Statute This proves That the Lords are tied to a method too in cases where they have a Rightful Jurisdiction They must not take it ad primam Instantiam nor per Saltum In that Collection I have mentioned under that Lemma of Examination of Iudgments in other Courts which is comprehensive enough I find notice taken of Hadelow's Case 22. E. 3. Fol. 3. and Flourdew's Case 1 H. 7. Fol. 20. which I cited before at large And these concern only Cases of Erroneous Judgments in the King's-Bench Under the Title of Offences not Capital there is mention of no case but upon Accusations for Criminal Causes It begins with Latimer's Accusation of Iohn at Lee for Offences against the State It mentions the Case of Richard Lyons for procuring of Patents for private advantage and of the new Impositions without Parliament It instances in the Case of William Lord Latimer accus'd by the Commons And the Case of Alice Peirse And the Case in 7 Richard the 2 d num 11. of Michael de-la-Pool Chancellor of England accus'd by Iohn Cavendish of London Fishmonger for Bribery And the Earl of Northumberland's Case 5 H. 4. num 26. and Thorpe's Case but they are all in Criminal Causes While this Committee was in being I meet with an Appeal made to the Lords from a Decree made in Chancery And as I take it 't is a decree made by the Lord Bacon though he is not named by his name it is Fol. 181. in the Journal of the Parliament 18. Iac. 1621. The Third of December in that Parliament Sir Iohn Bourchier by Petition Appeals to the Lords from a Decree in Chancery wherein he himself was Plaintiff against Iohn Mompessom and others and there were cross Suits and they were about Accounts between them And Sir Iohn Bourchier had a Sum of Money decreed to him but not for so much as he thought was due and therefore he Appealed and complain'd in his Petition to the Lords of an hasty Hearing of his Cause in Chancery and that his Witnesses were not heard and uses the very formal word of Appeal in his Petition Fol. 188.6 December It was referr'd to the Lords Committees for Privileges to consider whether it were a formal Appeal or not I must confess it doth not clearly appear to me what the true meaning or ground of that Order is for as I now said the Petition does expresly use the word Appeal The 10 th of December Fol. 196. The Lord Archbishop of Canterbury Reported That divers Lords Sub-Committees appointed to search for Precedents ☞ cannot find that the word Appeal is usual in any Petition for any matter brought before them This deserves to be noted So that it seems the Lords Committees understood the meaning of their Order to be to search for Precedents if there had been any where the Lords had used in former times to admit of and to receive Appeals before them against Decrees made in Chancery or in any Court of Equity The Archbishop further Reports That they could not find so much as the word Appeal used in any Petition and that it must have been by way of Petition if any way This shows the Novelty of it for he likewise reports That all matters complain'd of before the Lords must be by 〈◊〉 Petition and in no other Form And that the Ancient accustom'd Form of
his Title was who indeed was all one with a Pro-rex or Viceroy and whose Office wholly ceased in the time of King Edward the First may now be used by the Chief-Justice of the Kings-Bench who often hath the same Title as Capitalis Iustitiarius Angliae given him Nobilis says Mr. Selden in the Saxon times denoted every Gentleman Now because Nobilis in our times is mostly restrain'd to the Peers of the Realm whom we call the Nobility our new Writers and Arguers ascribe all that power to the Lords in Parliament which they read in the Norman Translators such as Matthew Paris c. was Exercis'd in the Saxon times by those that in those times were stiled Nobiles when in truth that Power and Authority was in the times of the Saxons likewise in the hands of the middle sort of persons in the Kingdom as well as in those of the highest sort under the Saxon Kings and all then called Nobiles Thus Thanes who in the Saxon times signified Lords of Mannors and was not a distinction of Honour is generally translated Barones by our Norman Translators and that was not so altogether improperly done as I shall show by and by for the word Baro from the time of the coming in of the Normans and a long time after signified no more than a Tenant in Capite and was then no Title of Honour The words Nobiles Proceres Magnates Optimates and such like were not in the Saxon times restrain'd to the men of the highest Rank such as our Earls and Barons are now but extended to all persons of the better sort and above the vulgar Not only to Patricians and those of the Senatorian Order to speak in the Roman dialect but also to those of Equestris Ordinis excluding none but the Ignota Capita or sine Nomine turba such as the Romans stiled Plebeians Sir Henry Spelman in his Glossary Page 84. Avo Henrici primi says he Procerum Appellatione computari videntur Omnes maneriorum Domini So that Titles in the Saxon times and in the beginning of the Norman times did all resolve themselves into possessions of Lands and were feodal For the word Magnates it most clearly includes also those of the middle sort or as I may term it in the now dialect of the lower Nobility Mr. Petit of the Temple in his Book of the Ancient Right of the Commons asserted cites a Record in the Tower Tertio of E. 2. membrana 16 ta dorso Rotulo clauso where there are these words enter'd viz. Inhibitio nè qui Magnates viz. Comes Baro Miles seu aliqua alia Notabilis persona transeat ad partes transmarinas So that by this videlicet Milites are comprehended under the word Magnates and Nobilis is no more than Notabilis Fleta lib. 2. cap. 42. fol. 93.37 H. 3. In majori Aula Westm. in praesentia Regis Archiepiscoporum Episcoporum Abbatum Priorum Comitum Baronum Militum Et Aliorum Magnatum regni Angliae c. which allows Milites to be Magnates in the time of King Henry the Third and some inferior to the Milites under the word Aliorum Lambert in his Book De priscis Anglor Legibus Fol. 176. recites verbatim a Charter of King Henry the First de Confirmationibus legum Edwardi Regis Testibus Archiepiscopis Episcopis Baronibus Comitibus Vice-comitibus Et Optimatibus totius regni Angliae So that the word Optimates stoop'd as low as to Knights and Sheriffs for there were no Vicounts till long after the time of King Hen. the First The same sense of the words Magnates Proceres appears in a Record of the Exchequer in the King's Remembrancer's Office inter Communia brevia de termino Trinitatis 34. E. 1. Nay the words Baro Baronagium which one would think should be Propria quarto modo to our Peers and should be peculiar and characteristical Notes of distinction between Peers and all others their Inferiors These very words had a much larger extent and were comprehensive of all Tenants in Capite Nay communicable to all Lords of Mannors if not to all Freeholders And this for a long time after the coming in of the Normans who introduced them first amongst us And the very Title of Barones gives all our Peers whether dignified with those higher Titles of Dukes Marquesses Earls or Vicounts the sole Right of Sitting in the House of Peers and they Sit there Eo nomine and not meerly by force of those higher Titles Hence it is I presume that those higher dignities are never conferr'd alone but accompanied at least with that most peculiar Title of the Peers I mean the Barons Now nomine Baronagii Angliae Omnes quodammodo regni Ordines continebantur says Learned Cambden in his Britannia Page 137. And Sir Hen. Spelman in his Glossary Page 66 67 68 69 70. Upon the words Barones Comitatûs says Hoc nomine contineri videtur antiquis paginis Omnis Baronum feodalium species Proceres nempè Maneriorum Domini nec non liberi quÃque Tenentes Anglicè Freeholders qui Iudiciis praefuere Aulae Regiae the then highest Court of Judicature Selden in his Notes upon Eadmerus Fol. 168. The same Learned Author in his Titles of Honour Fol. 609.691 tells us that in the beginning of the Reign of William the First Honorary or Parliamentary Barons were only Barons by Tenure and created by the King 's Writ or Charter of good Possessions whereby William the First reserved to himself a Tenure in Chief by Knight's Service or by Grand Serjeanty And that Knights Service was to serve the King upon occasion with such a number of Men at Arms as was reserv'd by the Charter or Grant and this is called a Tenure per Baronagium and the number of all Knights Fees out of which Baronies were made up amounted as Ingulphus who lived in the Conqueror's time says to Sixty thousand Knights or Men of War Now these Tenants in Capite were the most of those that made up the great Assembly called a Parliament and they were the Judges of the Supreme Judicature for as Mr. Selden says in those times Tenere de Rege in capite and to be a Baron or to have a Right to sit with the rest of the Barons in Councils or Courts of Judgment according to the Laws of those times are Synonomies and signify the same thing All these Tenants in Capite had the whole Kingdom been put into a Scale and weighed as Bocaline the Italian weighed all the Princes and States in Europe These Tenants in Capite I say made up the greatest part of the weight I may say the whole weight if Land only were to be weighed For under these Tenants in Capite by degrees in process of time all the Freeholders derive their Estates who are therefore to be accounted as cast into the Scale with the Tenants in Capite who originally had all the Lands For Lease-holders Farmers and Copy-holders are but in the nature of Servants
King tells us what those Mischiefs were When in that disorderly troublesome Reign the Lords were so divided into Feuds and Factions that the Lords who were to be the Judges became Parties and were Appellants one against another This was the mischief Then for the practice after the making of that Act that Law was never intended according to the generality of the words to exclude all Appeals whatsoever but such only as were at the suit of private persons For the constant practice hath been ever since as well as before to admit of Appeals in Parliament when they come to the Lords by Impeachment from the Commons The Lords had and still retain the Jurisdiction over their own Members for trial of Peers in cases Capital The Lords had and still have the Jurisdiction in Writs of Error to examine Judgments given in the King's-Bench but this was under certain Rules and with some restraint for constant and quiet usage and practice do warrant all these Let us enquire into the placita Parliamentaria I mean those that are publish'd by Mr. Ryley of the times of King Edward the First King Edward the Second c. and observe what light they give us The true Title of those Pleas are Placita coram ipso domino Rege ejus Concilio ad Parliamenta sua In which Titles Regis Concilium Parliamentum seem to be distinguish'd and to signify two several things as in truth they did When and how came these Pleas to be discontinued ever since the time of Edward the 4 th When did the Law pass that restrain'd them We have not one such Plea to any effect between the time of King Edward the Fourth and the time of King Iames the First nor from thence to this day near 300 years What is come in the place of them The Placita Parliamentaria were in a strict and regular form of Pleadings The Petition of Declaration the Plea the Replication the Rejoinder and the Continuances entred upon Record in Latin and the process was by Latin Writs and all the Proceedings entred upon Record in Latin as Proceedings at the Common-Law ought to be How came this to be altered All of later times at least before the Lords are in English and the process are English Orders only Had these Placita been before the Lords how happens it that there are so few if any Reports among them of Pleadings upon Writs of Error which the Lords claim as out of all dispute to be within their Jurisdiction Hardly any of these are to be found amongst them and these had been worthy Reporting being in matters difficult weighty and full of Learning What was this Regis Concilium so constantly mention'd in these Pleas as those before whom they were held ☞ Amongst these Records and Pleas we find All the Peers themselves in a Body several times petitioning to the King and this Council and receiving Orders and Rules from that Council It is absurd to think that all the Lords in a body would petition to themselves as at the Parliament held 14 th of Edward the Ryley's Placita Parliamentaria pag. 425. Ex parte Praelatorum Comitum Baronum aliorum porrecta est petitio in hoc Parliamento in haec verba A nostre Senior le Roy a Son Counceil monstrent les Erce-evesque Praelats Counts Barons les auters grantz Seigniors dela terre Concerning payment of Escuage And the Answer to this Petition is per Concilium Regis the like ib. pag. 448. We have another Example of it in the Appendix to that Book viz. of the time of 18 Edward the Second pag. 619. wherein the Lords in a body pray liberty to approve or improve their Mannors without the King's License And the Answer to it is That it could not be done without a new Law to which the Commons would not consent It is evident in those Records and Pleas that others are mention'd to be of that Council then the Peers as pag. 266 and 331. There is an Inhibition by the Treasurer and the Concilium Regis not to deliver a Prisoner and page 386. 14 th Edward 2. the King appointed who should receive Petitions at the Parliament and who should Answer them And those that were appointed to Answer them are called Triers of Petitions These seem to be the persons that made the great Council or the King's Council as they are called in those Records These in Parliaments of late have been wholly discontinued We find this Council while they were in being sate in Places where we cannot reasonably suppose that the House of Lords ever sate as pag. 87. in Mr. Ryley's Placita Parliamentaria Corà m Rege Concilio apud Lond. in domo Ottonis de Grandissono extra palatium ipsius Domini Regis apud Westmonasterium And pag. 98. at Bergavenny and pag. 108. at Stilbeneth extra London which I suppose is meant of Stepney And the Judges are mentioned as Members of this Council pag. 140. not meer Assistants Now we come to Writs of Error wherein it is generally admitted that the Lords have a Jurisdiction and from thence as I suppose it is inferr'd by a parity of Reason that they likewise have a Jurisdiction in Appeals from Courts of Equity An Appeal from a Decree in Equity being something of the same nature with a Writ of Error at the common-Common-Law It is true our law-Law-Books are full of this Title and speak of Error sued in Parliament But under favour it is not of an universal Jurisdiction in all Cases of Erroneous Judgments but with divers Restrictions and under certain Rules in our Law-Books It hath been often Resolv'd that the Lords cannot proceed upon any Writ of Error till first the King hath Sign'd a Petition for the Allowance of a Writ of Error to be sued out As in the Year-book of 22 Edward the 3 d. Fol. 3. It is there held that a Writ of Error in Parliament lies not till the King be petition'd for it and till the King have Sign'd the Petition Which Signing is indeed the Commission which gives the Authority And in the case of Edward Hadelow where Judgment was given for the King Upon the King's Signing a Petition for a Writ of Error and the Writ sued out the Roll in which the Judgment was entred was brought by Sir William Thorp Chief-Justice of the King's-Bench into the Parliament Upon which the King assign'd certain Earls and Barons and with them the Iustices to hear and determine the business And before it was determin'd the Parliament was ended yet the Commissioners sate still but the King was gone And it was urged before the Delegates for so they are called That the Judgment could not be Revers'd except in Parliament and there it is said that the King hath no Peer in his Land and that they cannot judge the King How came that in to Debate Why it was in the Case of an Outlawry which is always for the King's benefit and