the Petitions must be To the King and his Great Council this is very observable Note here That the Direction and Entitling of Petitions to the Lords Spiritual and Temporal in Parliament Assembled omitting and leaving out the King in the Direction as it is now used and hath been ever since King Charles the First went away from the two Houses in 1641. is not according to Ancient Form and Custom And that the Ancient accustom'd Form was not to the Lords by the Title of the Lords Spiritual and Temporal assembled in Parliament as now used but to the Great Council Whom that great Council did consist of and by whom Nominated and Constituted I have made some conjecture by what I have before in this Treatise discours'd of concerning that Magnum Concilium in Parliamento and concerning the ancient and constant usage till of late years and until the separation between the said King Charles and the Parliament of the King 's appointing Triers of Petitions in every Parliament Let the Reader take occasion here to look back upon what I have herein already discours'd upon this Subject which may give light to this matter In the last place the Archbishop reports That they could find but only one Precedent of this nature which was a complaint by Petition against Michael de-la-Poole Lord Chancellor for matters of Corruption Which Precedent I have mention'd before for Michael de-la-Poole Lord Chancellor was accus'd in the Seventh year of King Richard the Second by Iohn Cavendish of London Fishmonger for Bribery I presume too according to the usual Form of Petitions as the Archbishop reports them to be that this Petition was directed to the King and his Great Council and not to the Lords c. assembled in Parliament But I conceive this only Precedent as the Archbishop calls it is no Precedent of the same nature as hath been so frequently used of late and still is for an Appeal against a Decree meerly for Error in Judgment For to Err in Judgment in making a Decree and for the Judge that makes the Decree to receive a Bribe in the case are two different things for to Err in Judgment as Humanum est Errare is of a meer civil Nature but to be corrupt and take a Bribe though the Decree be just is of a Criminal Nature and therefore not to the purpose of what we are discoursing And there are about 240 years distance in time between this only Precedent and the time of this search made by the Committee of Lords viz. 18. Iac. 1. a large Casma in a usage and custom for the Exercise of a Jurisdiction And the matter in hand must still be determin'd by Precedent and Custom Consuetudo Parliamenti est Lex Parliamenti is the old Rule This complaint by Sir Iohn Bourchier was in a matter not of Error in Judgment for then that Error must in particular have been assign'd and the Judge not have been reflected upon but the complaint is of a Male-administration in the Judge an hasty Hearing and Witnesses not heard And therefore the Lords in that case censure the Petitioner for casting a scandal upon the Judge For the Lords Examin'd the matter and found the suggestion of the Petition to be false The Cause had had a deliberate Hearing and the Petitioner's Witnesses had been heard yet the Petitioner for the scandal had but an easy pennance and that was remitted wholly viz. to acknowledge this offence But note this was a proceeding against him upon his own Petition He himself Entitled the Lords in this case to a Jurisdiction It doth not appear that any Adverse party was Summon'd to defend it the Lord-Keeper himself defended it upon the point of scandal There is yet another most Memorable Case in the very Journal of the Lords too and that is Four years after viz. 22. Iac. 1. which is as followeth and it comes strongly home to the point in hand viz. of Appeals 28. May 22. Iac. 1. William Matthews petitioned against George Matthews by way of Appeal in the House of Lords and question'd a Decree made by the Lord-Keeper in Chancery on the Defendant's behalf from which Decree William Matthews Appeal'd It is to be found in the Journal of the Lords 28. May 22. Iac. 1. The Lords Committees who were appointed by the whole House to Examine the Cause Heard Council on both sides several days and Reported to the House their Opinion for the Petitioner and Appellant Thereupon the Respondent George Matthews petitioned the Lord's House against that Report and Opinion of the Committee and in his Petition alledges That he was inform'd by his Council That it had been the course of the House to Reverse Decrees only by Bill legally Exhibited that is by a Bill to pass into an Act by Parliament for what can a Bill in that case otherwise signify This shows that the whole Parliament are the proper Judges of it The Lord's House hereupon being tender and cautious how they entertain'd a new Jurisdiction name another Committee of Lords to set down an Order in that Cause That Committee Report their Order viz. That the Cause be Review'd in Chancery by the Lord-Keeper by such Lords as the Lords House should name and by any Two of the Judges as the Lord-Keeper should name For which end the Lord-Keeper is to be an humble Suitor to the King from the House to grant a Commission to himself the Lord-Keeper and the Lords to be named by the House The Lords House approv'd of the Order and named Seven Lords The King granted the Commission accordingly and the Decree in Chancery was Revers'd upon it The Orders are to be seen in the Register's Office of the Chancery Mich. and Hill 22. Iac. 1. This is a dischargiâ—g all that the Lords had before done in it though they had in effect arriv'd at the very Port and made a conclusive Order and Decree But after all refer it to the right and usual Method in the main of it viz. to be determin'd by a Commission from the King to the Lord-Keeper himself to Salve his Honour in it Quod in consultò fecimus consultò revocemus and to some Judges who are the most proper and to the Lords who for that purpose were recommended by the House of Lords which is in compliance with their desire but not Stricti Iuris But the King's Commission is the true regular and warrantable ground and foundation of all the further Proceedings in that Case And all this by the Direction and with the Opinion and Judgment of the Lords themselves in a Case wherein they had begun and made a large progress in the Exercise of a Jurisdiction and then wholly desisted Nor is the Subject without a proper and ordinary remedy if our Law-Books may be credited where he is grieved by an Erroneous Decree in a Court of Equity See Serjeant Rolles's Reports the 1 st Part Fol. 331. the Case of Vaudrey against Pannel Sir Edward Coke
cites a Case there Mich. 43. Elliz. in the Chancery between the Countess of Southampton and the Lord of Worcester Resolv'd by all the Judges That when a Decree is made in Chancery the Queen upon a Petition may referr it to the Judges but not to any other and so says that case the practice and proceedings have been which make a Law in cases of Equity and the Lord Chancellor agreed to it the Lord Egerton and accordingly upon Petition to the Queen and a Reference by the Queen to the Judges that Decree was Revers'd The like we may read in Andersons's Second Reports Fol. 163. The Earl of Worcester and Sir Finche's Case the same with that of the Countess of Southampton and Bulstrode's Third Part Fol. 118. See Serjeant Rolles's Abridgment the First Part Fol. 382. Ruswell and Every's Case 15 Iac. 1. and Arden and Darcy's Case 8 Iac. 1.27 H. 8. Fol. 15. But as to the Remedy against an Erroneous Decree in Chancery I have already given my advice at large in that former Treatise of mine before-mention'd to which I refer my Reader It is high time that it should be settled in some constant course The Noble Author suppos'd as I said before to be the late Lord Hollis in his Book beforemention'd hath asserted a very large Jurisdiction to belong to the House of Peers which in the consequence if it be observ'd and put in practice will be of mighty concernment to the Subjects Nor hath it been answer'd or taken notice of by any as far as I have heard That Author ascribes to the Lords a power to try and determine a matter of Fact in issue although the Right of a Freehold depend upon it and this by Proofs without a Jury pag. 66. and this he grounds upon the Precedent of the case of William Paynel the Record whereof is in Ryley's Placita Parliamentaria Fol. 231. What then becomes of that great privilege of the people of England of being tried by the Country and by their Neighbours and inferior Courts of Equity will be very apt to tread in their steps and do the like and it deserves to be enquir'd into if it be not already frequently so done The Lords will not be likely to reform it upon Appeal from these Courts of Equity if that should be assign'd for Error if they themselves should practice it as this Author says they may Nor does that Precedent of William Paynell any way countenance that practice for there the Concilium Regis gave Judgment upon Matter of Fact confess'd where there needed no trial at all The same Noble Author affirms That the Lords may entertain or dismiss Causes as their occasions will give them leave or as they have leisure from the greater affairs of the Kingdom so that sometimes they cannot be at leisure to do Justice If this Opinion be allow'd Cessa regnare says the Petitioner to King Philip of Macedon when that King refus'd to answer her Petition for want of leisure The Lords can says the same Author grant a temporary dismission to a Defendant by an Entry made of Eat inde sine die ad praesens but may Summon him again for the same Cause at another time when they think fit If this be true a man shall never know when his Cause is at an end nay the Chancery will give further costs after the Parties and Cause are out of the Court and long after the whole matter is at end without any new process The persons of whom this high Judicature doth consist had need be men of great Learning in the Law and of long Experience For the matters that should come before them are such as are too difficult for the inferior Courts to determine and are very abstruse and yet those inferior Courts are generally furnish'd with such as are of great Abilities and long Experience and usually spend Thirty or Forty years in hard study to make them fit for the discharge of their Offices Be Learned ye that are Iudges of the Earth says Almighty God that Judge of Judges Hence Governors are wont to be called Senators and in the time of the Saxons they were called Eoldermen or Eldermen for their Age Gravity and Experience It would indeed be a Miracle in Nature if any one could truly affirm of himself Me jam jam à puero illicò nasci Senem or nasci Iudicem to be able to judge in those abstruse and difficult Causes St. Paul being accus'd before Faelix did and that without insinuating flattery tell his Judge That he did the more cheerfully answer for himself because Faelix had been as St. Paul acknowledg'd of many years a Judge unto that Nation And he said the like when he stood before King Agrippa because he knew him Expert And it is a just and commendable course always practis'd in all our inferior Courts That after a Cause hath been pleaded that both Parties and Council and Witnesses and all others that will are permitted to be present and to hear the Repeating and opening and true stating the Case by the Bench and Court and to hear the Debate of it to observe and be in a readiness to rectify any misapprehension or mistake if any happen and so to set the Court right again As also that the grounds and reasons of the Opinions of the Judges may be known that the People may the better know thereafter how to square their actions And that the Law may be the better known to those that are subject to it For there ought to be one certain known Rule of Law whereby one and the same Case is to be determined and not two or more contradictory Laws in one and the same place It was a woful condition when at the same time some were burnt in Smithfield for being Protestants and others for being Papists which made one cry out Bone Deus quomodo hic vivunt c. Inferior Courts and the Superior must judge by the same Law and Rule for Misera est Servitus ubi jus est vagum And it is impossible to serve two contrary Masters and it is a sad case where the Trumpet of the Law gives an uncertain sound for then a man knows not how to order his affairs There may indeed be a different Method and Course of Proceedings in the several Courts and yet all conform to the same Law And it is sometimes said by our Judges that what is Law in the Exchequer is Law also in the King's-Bench and Common-Pleas If it were otherwise great Confusion would arise And this Law is not known by Inspiration it is not infus'd all at once but acquir'd by long Study and long Experience Sir Francis Bacon in his Advancement of Learning pag. 445. holds it just that Judges should alledge the reasons of their Sentence and that openly in the Audience of all the Court. And anciently amongst us in England the Courts used to enter the reasons given by the Judges upon the Record of the Judgment which is now suppli'd in some measure by Reports of Cases adjudg'd and of the Arguments at Bar and at Bench. But we have few or no Reports of Cases adjudg'd in the Supreme Court since those that are printed by Mr. Ryley In that ancient Cause of Adelwold Bishop of Winchester in the Saxon times under King Eldred the Record mentions that the Bishop himself Coram cunctis suam causam patefecit He pleaded his Cause himself Qua Rebenè ritè ac Apertè ab Omnibus discussa it was openly debated Omnes reddiderunt Iudicium This was at the Miccel-Gemot there was no withdrawing And Eadmerus gives us the like Instance in the Cause of Lanfrank Archbishop of Canterbury in the time of King William the First 't is in his Historiae Novorum pag. 9. Adunatis says he Primoribus Probis viris de Comitatibus quaerelae Lanfranci in Medium ducerentur examinarentur determinarentur In medium that is before or in the midst of all that vast Company To Conclude and in order to the obtaining a safe and speedy remedy let our Law makers be mindful of that old Advice and Caution viz. Serò Medecina paratur Cum Mala per long as invaluêre moras FINIS Hadelow's Case Note Note An. Dom. 1624. Note
way upon the opening of them how properly truly and naturally these Observations result and are made out some by one Precedent and Author and some by another which otherwise by an hasty reading might possibly escape the being observ'd It will not be altogether impertinent by the way to take notice of the temper and usage amongst the Ancient Britons before the coming of the Romans testified by our most credible Authors which seem to have a countenance this way viz. of translating all publick Affairs by the body of the Freeholders And that it may appear that this humour of the Nation was as we use to say bred in the bone Although they seldom or never had any National Assemblies as before hath been observ'd unless upon some great and extraordinary sudden occasion like that of chusing Cassibilan for their General upon the Invasion by the Romans or the like which was but temporary Tacitus the Roman Annalist says of the Ancient Britons De Minoribus rebus Principes consultant De Majoribus Omnes Ita tamèn ut ed quóque quorum penes plebem arbitrium est apud Principes praetractentur Note Principes here signifies not Princes or Monarchs but the great or chief men as will appear by what follows The Plebs or common sort were not excluded whenever they did consult or transact any publick Affairs Ziphilinus out of Dio Cassius speaking of the Britons Apud hos says he Populus magnâ ex parte Principatum tenet This is not meant of the power of Government as if they were a Republick or had any thing of a Democracy for Caesar in his Commentaries tells us that the Old and Primitive Government amongst the Britons as to the Title and outward Form of the Administration was Monarchial and Regal Olim Regibus parebant says he But it must therefore be understood that the People had this Principatum in Subordination to the Kings It was not Engross'd into the hands of an Aristocracy and what can Principatus else consist of unless in Legislature and Judicature Our late Innovators would have us believe that Populus doth sometimes signify only the Lay-Lords met in these Ancient great Assemblies in distinction only from the Clergy as when our Annals or Records mention Clerus Populus as they often do it is not say they to be understood as if the Common people met but only those of the higher Rank the Lords or Nobility Therefore I have cited Tacitus who speaks of the Plebs or Plebeians who used to meet to consult of the greatest Matters De Majoribus Omnes consultant as before was observ'd Omnes comprehends the Plebeians and excludes none But under their favour Populus does most usually signify All but the highest Rank and is exclusive to them only though sometimes by way of distinction from the Prince or Clergy Thus in that old lofty Title of the Roman Republick Senatus Populùsque Romanus where the word Populus is exclusive of the Senate and distinct from it Thus Learned Vinius the Civilian in his Commentaries upon the Imperial Laws Page 12. says Plebs à Populo dissert Nam appellatione Populi Universi Cives significantur Connumeratis etiam Patriciis Senatoribus Plebis autem appellatione sine Patriciis Senatoribus caeteri cives significantur but in no Author till among these new Writers of ours does Populus signify the Lords or Patricians exclusive to the middle or common sort as they would have it To come to the times of the Saxons who next succeeded the Romans even in the time of the Heptarchy We have one Instance or Precedent in the time of Ina King of the West-Saxons which was the most Powerful of all the Seven and at last swallowed up all the rest Lambert in his Book De Priscis Anglorum legibus Fol. 1 mo beginning with King Ina Anno 712. says He made his Laws suasu Instituto Episcoporum suorum Omnium Senatorum suorum Et Natu Majorum Sapientum Populi sui in Magna servorum Dei frequentia Brampton the Historian as Mr. Selden cites him renders it Multáque Congregatione servorum Dei and Lambert again Fol. 62. says King Edgar Anno 959. who was one of the English Monarchs after the time of the Heptarchy gave his Title to his Laws thus viz. Leges quas Rex Edgarus frequenti Senatu Sancivit and afterwards Fol. 148. in a remembrance and recital of some of King Ina's Laws it is said Hoc factum fuit per Commune Concilium assensum Omnium Episcoporum Principum Procerum Comitum no word of Baronum for they were not in being till afterwards in the time of the Normans But the title of King Ina's Laws goes on and says further Et Omnium Sapientum Seniorium Populorum totius Regni that is in English The Common-Council of the whole Nation was made up of all these and but One Body In the time of King Etheluph King of West-Sex there was a great Assembly or Parliament says Mr. Selden held at Winchester Anno 855. now above 800 years since Where were present the Archbishop but one Bishops and Ducum Comitum Procerúmque totius terrae aliorúmque fidelium Infinita Multitudo for which he cites Ingulphus This was at that time the Supreme Judicature and the last Resort There was a Proceeding in a Civil Cause before their Supreme Court or Witena-Gemot under King Eldred Son to King Edgar who began his Reign says Dr. Heylin Anno 978. one Leoffius had bought Land of Adelwold Bishop of Winchester and denied to pay for it And he had also dis-seis'd the Bishop of certain other Lands Edicitur placitum apud Londoniam where the Duces Principes Satrapae ex omni parte confluerant which word Satrapae extends to the middle sort as I shall show by and by The Bishop corà m cunctis suam causam patefecit he opened and pleaded his own Cause before them all Quâ rè benè ritè ac apertè ab omnibus discussa not commanding the Parties and Auditors to withdraw while it was debated by the Court Omnes reddiderunt Iudicium on the Bishop's side This Case is also mention'd by Mr. Selden in his Titles of Honour Page 633. One case more that I shall trouble the Reader with of the Saxon times shall be that of Earl Godwin in the time of Edward the Confessor Seld. ib. 634. There the King himself in his own person did Sue an Appeal of Murder against Earl Godwin for the death of Alfred The Witena-Gemote sate at London and the Cause was heard before Omnes Regni Magnates where the word Magnates comprehended also persons of the middle sort as well as those of the highest Rank as I shall clearly prove but the matter was compounded and twelve Earls bought it off with as much Money as Each of them could carry to the King in their Arms. Note this was in the time of a Saint King too viz. St. Edward I come now to the times
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