THE CASE STATED Concerning the JUDICATURE OF THE House of Peers In the Point of APPEALS Printed in the Year MDCLXXV The Case stated concerning the Iudicature of the House of Peers in the point of Appeals ONe chief end of Parlaments besides that of making good and wholsome Laws for the well governing of the Kingdom is to redress and reform Abuses of Inferiour Courts and to direct them in Cases of great difficulty when by reason of some Circumstance in matter of Fact the Law is not so plain as that they can proceed to give Relief to such suiters as stand in need of Relief and demand it and then have those Courts applied themselves to the Parliament for Advice and Direction Whereas in other Cases where there hath been either a Perverting of Justice in giving a wrong Judgement or a wilful delay of Justice in giving no Judgement at all there the Party grieved complaining to the Parliament finds that Remedy which his Case requires Therefore is it that 1. R. 2. n. 95. the Commons pray That a Parliament be yearly holden to redress delays in Suits and to end such Cases as the Iudges doubt of Now the next thing to be enquired into is how and in what manner the Parliament doth exert this power of Judicature over Inferiour Courts and where and in what part of the Parliament this Jurisdiction is lodged which I think will be easily made out to be singly and solely in the Upper House the House of Peers that there it is and hath ever been both De facto de jure That it hath been Practised so you have multitudes of Presidents sometimes in case of delay in Justice sometimes in case of an Erroneous proceeding in the Application of it As in the 14. E. 3. in the Case of Sir Iohn and Sir Ieffery Stanton Sir Ieffery comes and complains to the House of Lords of delay in the Court of Common Pleas the House of Lords first send to those Judges to proceed to Judgement by a Writ containing the whole Matter as it was represented to them with this that in case the Judges there could not agree in regard of Difficulty or any other Cause they should then come into Parliament and bring with them the Record of the whole Process which Sir Iohn Stonore the Chief Justice did and then the House of Peers as it is expressed in the Roll Les Prelats Countes Barouns Autres du Parliament and who those Autres were is likewise expressed not any of the Lower House but Le Chaunceller Tresorer Iustices del un Bank del autre autres du Conseil du Roy that is Those who were Assistants in the House of Peers as the Attorney and others of the Kings learned Counsel and even the Chancellor and Treasurer if they were not Peers they declare Est finalement accordez the Roll saith it is finally agreed what the Judgement shall be and they command those Judges Quils en lour Bank aillent le Iugement rendre that they go and pronounce that Judgement in their Bench. But there is an Act of Parliament in that 14. of E. 3. c. 5. and that Act is still in force which shews the right of such a Judicature to be in the House of Peers It ordains That a Prelate two Earls and two Barons shall be chosen every Parliament who shall have a Commission from the King to hear the Complaints of those that will complain unto them of such Delays or Grievances done to them in the Chancery Kings Bench Common Bench or Exchequer shall cause the Iudges of the Court where such Delay is complained of to come before them with the whole Process in the Cause may call to them the Chancellor Treasurer Iustices of either Bench and Barons of the Exchequer as they shall think fit to assist them So shall proceed to take a good accord and make a good judgement and then send that to the Iustices before whom the Plea did depend with order that they hastily go to give judgement accordingly And if the Case were of such difficulty as that they could not well determin it they were then to bring it to the next Parlaement where a Final Accord was to be taken what judgment ought to be given which was to be sent to the Iudges and they commanded to proceed without delay and give that judgment And to begin to do Remedy upon this Ordinance they are the words of the Act the Lords are named viz. The Arch Bishop of Canterbury the Earls of Arundel and Huntington the Lord de Wake and the Lord Ralph Basset and it is Enacted that a Commission and a Power should be granted to them to endure till the next Parliament For this was but for the Intervals of Parlament the Parliament Sitting the Complaint was to be made to the House and the House to give the Redress Then for Erroneous Judgements and Decrees whether given in Courts of Law or Courts of Equity that the Remedy en dernier ressort lies likewise in the House of Peers will I think be easily proved Concerning the Courts of Law it is not at all Controverted but that by a Writ of Error all such Judgements in Inferiour Courts with which any Body shall find himself aggrieved may be removed unto and Reversed in that House if they find cause for it It is true that in Rastals Collection of Entries Tit. Error en le Parlament pag. 302. there is this Clause inserted in the Writ there entred viz. Vobis mandamus quod Record Process c. in presens Parliament c. mittatis hoc Breve ut inspect Recordo Processis predicto Nos de Consilio advisamento Dominorum Spiritualium Temporalium ac Communitatum in Parliamento nostro predict existent ulterius pro errore illo corrigendo fieri faciamus quod dejure secundum Legem consuetudinem Regni nostri Angliae fuerit faciendum Here one would think is a clear Testimony that the House of Commons are Copartners with the Lords in Judging those Writs of Error But I may say there is an Error in this Entry and it was set right that very year in the 1. of H. 7. by a Meeting and Consultation of all the Judges in the Exchequer Chamber It is in the Year-Book Pasc. 1. H. 7. p. 19 20. in Flouredews Case the words are these Et postea per avisament omnium Iusticiariorum in Camera Scaccarii existent congregat pro eadem materia errore illo corrigendo sic intelligendum est si Parliament sit apud Westm. tunc oportet partem habere billam de Rege indorsatam c. Et quam cito Billa sic indorsata fuerit Breve de Errore Transcriptum pred in Parliamento deliberentur Clericus Parliamentorum habebit custodiam inde Et per Dominos tantum non per Communitatem assignabitur Senescallus qui cum Dominis Spiritualibus Temporalibus per concilium Justiciariorum procedent
Erroneous Judgements in the Kings Bench or in the Exchequer a Writ of Error lies to bring them before the Judges in the Exchequer Chamber but it is by Act of Parliament Several Acts have been made to give that Relief First The 31. E. 3 c. 12. which gives Power to the Chancellor and Treasurer to call the Judges to assist them to examine Errors in the Exchequer Then the 27. Eliz. c. 8. which makes Judgements in the Kings Bench examinable by all the Judges of the other Courts in the Exchequer Chamber And the 31. Eliz. c. 1. which gives some further Regulation in the proceedings upon Judgements given in each of those Courts as well the Exchequer as the Kings Bench And that of the 27 th of the Queen gives the Reason in the Preamble why those Laws were made because before that time Erroneous Judgements given in the Kings Bench could only be Reformed in the High Court of Parliament and the Parliament did not so often sit in those days as formerly But there is no Act of Parliament nor no Law which gives Power to the King to enable either the Judges or any Body else out of Parliament to examine a Decree made in Chancery though it be never so Unjust and Erroneous therefore it may well be doubted if such a Commission were according to Law notwithstanding the Resolution of the Judges at that time But admit such a Commission were Legal and that the King had Power to Appoint and Authorise Persons to receive and judge of Appeals from the Chancery as he doth Delegates for Appeals from Ecclesiastical Courts which Power is given him by Act of Parliament 25. H. 8. c. 19. yet that would not conclude the House of Peers but that they might receive an Appeal even from the Sentence of those Commissioners seeing it is the Kings Supream Court of Judicature and where Henry the 8 th said upon occasion of what happened in Parlament in the Case of Ferrars that he was Informed by his Judges that he stood Highest in his Royal Estate Therefore even those Acts of Parliament that Erect a Judicature of all the Judges in the Exchequer Chamber to examine and reverse Erroneous Judgements given in the Kings Bench and in the Exchequer do not exclude an Appeal even from thence to the Parliament The words of the Statute of 27. Eliz. are these And be it further Enacted that such Reversal or Affirmation of any such former Judgement shall not be so Final but that the Party who findeth him grieved therewith shall and may Sue in the High Court of Parliament for the further and due Examination of the said Judgement in such sort as is now used upon Erroneous Judgements in the Kings Bench. And it doth naturally and necessarily follow that it must be so if the House of Peers be the Supream Court of Judicature That the High Court of Parliament is so no Man will deny It rests only to make out that by the High Court of Parliament in matter of Judicature is intended the House of Peers where such Jurisdiction is solely Lodged And that it is so it will be proved by good Authorities and by right Reason The Authorities are taken out of the Parlament Rolls which declare it throughout from the beginning to the end both in the ancient Records and in the Modern Journal Books They all speak the House of Peers that is King and Lords to be the sole Judges both of Persons and Things Criminal and Civil and the House of Commons to have no part in it at all The first Parlament Roll extant is 4. E. 3. and it begins with a Judgement given by the Peers upon Roger de Mortimer E. of March Per qoi les ditz Countes Barouns Piers come Juges du Parlement per assent du Roi en mesme le Parlement agarderent aiugerent que le dit Roger come treitor enemy du Roi du Roialme feust treyne pendu The Earls Barons and Peers as Judges of Parlament c. they are Characterised Judges of Parlament as a thing known and notorious to all Men. They at the same time exercised their Judicature upon Sir Simon de Bereford John Mautrauers Bogo de Bayons John Deueroil Thomas de Gurney and William de Ode who were Commoners and no Peers those were all Condemned but only Sir Simon de Bereford Executed for the others were not taken and none of them all neither the Earl of March nor Bereford called to Answer but the Lords were forced to Condemne them by the earnest pressing of the King which so troubled their Consciences that they presently came to an Agreement with the King not to be hereafter compelled to give Judgment upon any but their Peers which is that of 4. E. 3. n. 6. which is hinted in a Paper said to be Reasons prepared by the House of Commons for a Conference with the Lords and to be Read to their Lordships as a Matter of huge Importance to disprove the Power of the House of Peers of judging Commoners when it was only an Agreement as it were a Bargain made with the King that he should not force them to Judge any but their Peers For that was a thing they were tied unto by Law and they could not avoid it Ne soient mes tenuz ne chargez a rendre juggementz sur autres are the words of the Record I see not what great Matter can be built upon this President to dispossess them of their Judicature It was a voluntary Act of the Lords at that time even an effect of their Indignation against themselves for having yielded to doe an unjust thing at the pressing Importunity of the King to Condemne Men unheard and not called to Answer for themselves as the Lords themselves confessed 28. E. 3. when an Act of Parlament passed to reverse this Judgement But that they did afterwards commonly judge Commoners in Criminal Causes is very apparent That very Parlament notwithstanding that Agreement made Sir Thomas Berkley was tried before them by a Jury for the death of Edward the 2 d and acquitted The House of Commons themselves 1. R. 2. n. 30. come and desire the Lords to exercise this Judicature upon such as had betraied Forts and Towns into the hands of Enemies the words are Supplie est per les Coēs que touz ceux qont renduz perduz Chastelz on Villes per de la per verray desauce de Capitaine puissent estre a response a ceste Parlement solonc lour desert forsement puniz per agard des Srs. Baronage c. That they may by the Judgement of the Lords and the Baronage be severely Punished according to their deserts The Lords accordingly cause to be brought before them William de Weston for Surrendring the Castle of Outhrewick and John de Gomeniz for Surrendring the Town and Castle of Arde and Adjudged them to Death The same Parlament Alice Perrers who had been in high favour with Edward
his Prayer seemed reasonable to the King and Lords the King did grant him his desire and discharged him of his attendance This was upon the Wednesday the Monday after at the request of the Commons he was restored to his Place and good Name That very Parlament he was again Petitioned against by Nicolas de Pontingdon for dispossessing him of the Mannor of Bygelegh upon pretence that Thomas his Father was a Bastard and by Richard Somestre likewise for dispossessing him of some Land in Thurverton he appears upon it and those Differences are referred to some Person there named to end them by a certaine time which it seems they could not doe for in 4. H. 4. I find Pontingdon petitioning still against him and making the same complaint of the same unjust act and then the Lords referre the Matter to be tried at Law but determine and appoint first what shall not be the Point in Issue to wit a pretence of Sir Philip Courtneys of a Release made unto him by one Thomas Pontingdon a Parson then they appoint what shall be in Issue to wit the Bastardy of Thomas the Father The House of Commons it seems did not in those dayes find fault that a Business concerning a Member was by the Lords entertained and a Determination made in it and more that a Member should think himself unworthy and unfit to sit in the House of Commons because there was an Accusation brought into the Lords House against him and to make it his sute to the King and Lords to dispence with him from sitting till he was cleared and till that he stood right again in their good Opinions The House of Commons did not then send him to the Tower for shewing his respect and deference to the House of Lords So far from it that they come themselves Sutors to the King and Lords in his behalf and pray that he may be restored to his place in their House as likewise to his good Name and at their request the King and Lords doe it There was not in those dayes the least question made nor the least difference between the two Houses upon on this score Now Counsel has been pulled from the Bar in Westminster Hall and sent to the Tower for having but pleaded at the Lords Bar in a Cause wherein a Member of the House of Commons hath been concerned the so doeing voted a Breach of their Priviledge which would not have been so thought heretofore as appears by this President And there are other Presidents both Old and New which demonstrate the truth of what I say 3. R. 2.24 25. Iohn Earle of Pembrook and William le Zouch complaine in their Petition A lour tres redoute Seignor le Roy as Seig rs du Parlement that Sir Robert de Roos of Ingmarthorp and Thomas his Sonne sued them in Chancery and endeavoured to get a Tryall at the Assizes in the Countrey for some Lands settled upon them by their Kinsman William de Cantlow which Settlement Sir Robert Roos they say maintained to be otherwise then in truth it was and to be for the advantage of his Son by which means he would recover those Lands from them The Lords refer the Business to three of the Judges who are to call all Parties before them to examine the Matter and to report it to the House which they did and then delivered the Examinations and the Accompt of their proceedings in Writing to the Clerk of the Parlament Sir Robert Roos was then Knight of the Shire for Yorkshire yet being Summoned appearred before those Judges who had order to Examine him and the Business which concerned him 5. R. 2. n. 61. Sir William de Eurcester and Margaret his Wife set forth in their Petition several eomplaints of the miscarriages and deceitful dealings of Sir Thomas Hungerford entrusted by them in many Businesses who had warning to put in his Answer Luy quiel Monsieur Thomas saith the Record vint en Parlement en sa persone faisant primerment sa protestation de adjouster corriger amender si embusoigneroit y fist sa responce le mist avant en Parlement en escript en la forme que sensuyt La responce de Thomas Hungerford Chevalier c. That is the said Sir Thomas came into Parlament in Person making first protestation to adde correct and amend as there would be need then put in his Answer in Writing in the forme following viz. The Answer of Sir Thomas Hungerford c. He was then Knight for Sommersetshire And this appears as well for him as for Sir Robert Roos that they respectively served for those Counties by the Writts de Expensis Militum which are in the Clause Rolls in the Tower for those Parlaments The Journalls of Parlament say nothing of it nor can it be expected they should for the Names onely of the Persons and of their Business are there Recorded whether or no they were Members of Parlament is not mentioned nor taken notice of as not materiall nor no wayes altering the Case Sir Philip Courtney indeed is in the Journal expressed to be Knight for Devon upon that special occasion of his coming up to the Lords House and desiring to be discharged his attendance till he was purged else neither had he been knowen to be so by the Record of the Journall We may see that by the Journals now Where Mens Names are entred as there is occasion for it of Businesses in which they are concerned but never of their being or not being Parlament Men Yet it being within our Memory we remember some as Sir Arthur Ingram 21. Jac. May 28. he was then a Member of the House of Commons yet one Mrs. Grizil Rogers petitions the House of Lords complaining how she was sued and vexed in several Courts by him and others there named for some Lands in Sommersetshire and she desires their Lordships to end those differences and to settle her Title Upon which there is a long Order made for that purpose every particular thing in question between them is determined and all Sutes are ordered to cease in those other Courts In the Parlament of 16. Car. 1. Apr. 6. Sir Robert Pye was a Member of the House of Commons and yet the Lady Dyer sets forth in her Petition to the Lords how he and one Mr. Button had extended Lands belonging to Sir Richard Tichburne at a far under-value so as she who had likewise a Judgement after theirs upon those Lands for a Debt oweing to her was in danger to lose it The Lords order Counsell on both sides to agree upon drawing up Assurances for the satisfying of all Parties the Parties themselves to signe and seale them and so the Lady Dyer to be paid her Money The House of Commons then found no fault with these Proceedings there was no Quarelling with the Lords nor questioning of their Jurisdiction no Vote for committing of those who petitioned for relief in a Cause against a Member