judged in Ecclesiastical Courts whereof any Person is grieved and will appeal and it cannot be denied him So in Queen Elizabeths time they provide for those who are grieved with Judgements given in the Kings Bench or Exchequer and because Parlaments were not so frequent as formerly that Men should not stay long for Relief 27 31. Eliz. they appoint a rehearing by all the Judges meeting in the Exchequer Chamber from whence they might afterwards have their Recourse to Parlament But still the Statute leaves it to their Election to sue in Parlament and not go to the Judges at all except they please Now can we imagine they would take no care to give relief from unjust Decrees in Chancery but that the Current of Justice must there be at a dead stand A Man perhaps be Ruined against all Law and Equity and no help for him no remedy for so it must have been if a Parlament could not relieve him For that way of having a Commission under the Broad Seale directed to the Judges was never thought on till about the 43. of the Queen in those few Cases nor hath it ever been Practised since that wee know so as wee may be bold to affirme that our Ancestors knowing the Parlament to be the Supreame Court to which all Persons aggrieved with the proceedings of Inferior Courts did apply themselves for Relief and there had it thought it not needful to make any other Provision for those who should receive wrong in Chancery where heretofore they did not often doe wrong because in those dayes they had little worke not meddling with many Causes and the Chancellors were commonly Church-Men Sir Edward Cook saith That the first Decree in Chancery that ever he observed was 17. R. 2. and that an Act of Parlament had passed that same Year which gave the first ground for those Proceedings giving the Chancellor power to award Dammages according to his discretion to such as were vexed in that Court upon untrue Suggestions such Suggestions being duely found and proved untrue Certain it is they were in those times very rare the same Sir Edward Cook saith That none are found reported in their Law-Books before the Reigne of Henry the 6 th And this is one Reason why we find no Appeales in the antient Journals Besides as we have said before that the Journals are many of them lost and those that remaine are very imperfect Yet some there are That very first Decree before mentioned of the 17. R 2. n. 10. came to be examined 〈◊〉 the House of Lords The Case was tâ—â—s Iohn de Windsor being put out of Fossession of three Mannors in Cambridgeshire by Sir Robert de Lisle they referr themselves to the Arbitration of the King and Privy Councel who find it reasonable that Sir Robert de Lisle should restore them to Windsor and a Decree is made in Chancery to put this in Execution Lisle then petitions that he may be left to the Common Law The King grants it sends a Privy Seal to the Bishop of Winchester who was then Lord Chancellor and not William Courtney Arch-Bishop of Canterbury as Sir Edward Cook hath it to remand the whole Matter to be tried at Law The Chancellor doth it by a Writ de Procedendo under the Broad Seale Sir Robert de Lisle in the Interim sells these Lands to Sir Richard le Scroope Iohn de Windsor sets forth all this in a Petition to the King and Lords in Parlament and accuses Sir Richard le Scroope of Champerty The Lords order all the Proceedings to be brought into the House what passed in Chancery and what at the Privy Seal All which was viewed and examined by them and upon the whole Matter they gave this Judgement Quod non fuit nec habebatur aliqua Cambipartia Quod predictus Johannes nihil capiat per Petitionem suam Quod prediâ—lus Ricardus eat inde quietus ac Quod predictus Johannes proâ—equatur ad Communem Legem in hac parte si sibi viderit expedire The Lords here doe examine and Judge of what was done in Chancery which shews their Jurisdiction to extend thither And even their taking notice of any delay there is Argument sufficient of this Jurisdiction which Jurisdiction the Statute 14. E. 3. c. 5. doth fully prove to have been in them before the making of that Statute for that Statute doth onely provide for the placing it in some Lords named by the House to be exercised by them after the Parlament is Risen until it meet again and for that Interval of time Which shews that during the Parlaments 〈◊〉 such an expedient needs not for the relief of those who are deâ—ayed in Chancery because then the House doth it by a Power inherent in them and which so hath been time out of mind For there is no Record when that Power began no more then for their Power of rectifying Erroneous Judgments at the Common Law So that if the Lords be asked when that Power was given them and where it is Recorded They may answer as the House of Commons answered them in another Case about Imposing upon Merchandize that it will be found on the back-side of the Record by which they are Authorised for Erroneous Judgements For in truth there is no more a Record for the one then for the other Both those Powers are naturally of the Essâ—nce of a Parlament not conferred upon it by any Law extant But as the Common Law of the Land it is by Prescription time out of mind which is the difference between the Common Law and Statute Law The Common Law is by anâ—ient Usage and Custome of which no Man knowes the beginning Statute Lawes have a knowen time of beginning when first they were made and established by King Lords and Commons in Parlament before which time they were not in being Now we may say that the Power to correct the Errors of Inferior Courts as well of Law as of Equity and so of the Chancery is lodged in Parlament as a part of their Judicature by the Common Law of the Land I say of the Chancery both as it is a Court of Equity and as it is a Court of Common Law For both those Courts are in Chancery that of Common Law Coram domino Rege in Cancellaria is of all Antiquity and upon a Judgment given in this Court lies a Writ of Error returnable in the Kings Bench and consequently from thence to Parlament that of Equity is not so antient it is a Power growen up by degrees Sir Edward Cook saith That some are of Opinion that a Statute made 36. E. 3. did first give the Chancellor this Authority which Opinion he confutes and refers it rather to another Statute of 17. R. 2. as hath been said before however it is certain that In principio non fuit sic in the beginning it was not so And when ever or how ever it began when once it was begun and had a being it became subordinate
much beholding to them whose best Title to and strongest Hold of his New-gotten Crowne was their Affection and Good-will towards him Therefore the Lords may very well owne the citing of that Record and not account it any Dishonour to them notwithstanding the gentle admonition given them to the contrary by the Writer of that Paper of Reasons And so I hope I have sufficiently evinced this truth that the sole Jâ—dicature of Parlament is lodged in the House of Peers and that all who come for relief to Parlament must have it there It now rests to shew that it extends to the Relieving of such as have suffered wrong in Courts of Equity and receiving of Appeales from those Courts We have already seen that in case of Delay of Justice the House of Lords doth give Relief and by the same reason they may do it in case of Deniall of Justice and of doing Injustice And in truth there is greater Reason for it for when Justice is but delayed a little waiting and patience may happily bring a Remedy but when an unjust Decree is given there is a Ne plus ultra in that Court no help is to be there expected and without such an Appeal the Party grieved must be without Remedy Then why not as well receive an Appeal from a Court of Equity and give Relief upon it if there be cause as to reverse an Erroneous Judgement upon a Writ of Error from a Court of Common Law as hath been said already there is more danger from a Court of Equity where ones Doome depends upon the will of one Man that is not tied to the strict Rule of Law than where there are four Judges who have that strict Rule to goe by And can it be believed that in a Government so well modelled and established by the Wisdom of our Ancestors as this is there should be a standing known Remedy appointed for the lesser evil which apparently will more rarely happen and none for the greater which probably may befall us much more frequently In the third place one may argue thus By the constitution of this Government generally from all Inferiour Courts where any Body is grieved he may appeale to a Superiour and so Gradatim till he come to the highest of all the Supreame Judicature in Parlament as 50. E. 3. n. 38. was said to the Bishop of Norwich that Errors in the Common Pleas were to be corrected in the Kings Bench and of the Kings Bench in the Parlament So from particular Courts that are in several Counties and from Judges of Assize yea from Ireland the Party grieved resorts to the Courts of Westminster and from them to the Parlament This is the ordinary Tract but where it is otherwise provided by Act of Parlament in special Cases to make some Judgements in some Judicatories finall Else the last resort where all appealing terminates is the supreame Court of Parlament whither they have still come from all the Courts in England sometimes Gradatim by steps going first to other Courts sometimes immediately Per saltum from the Court it self where the Judgement complained of was first given And so have they received Complaints and given Relief from Sentences in the Star-Chamber as in 1641. April 2. to Mr. Lambert Osbolston In the High Commission to Nicholas Bloxam 1640. Febr. 9. and to Sir Robert Howard December 22. the same Parlament and to Iohn Turner December 30. who had laine fourteen years in Prison by a Sentence of the High Commission So from an Order of the Counsel Table to William Waters and Thomas Waters Ianuary 25. who had been committed thence for refusing to pay Ship-Money and they made Dr. Clerk and Dr. Sibthorp reimburse their charges and pay them 100 l. damages for procuring them that trouble by a false Certificate The 9 th of February from a Sentence in the Ecclesiastical Court at Glocester by which Iohn Radway William Newark and Walter Coates had been committed to Prison and Excommunicated And February 23. The Lords gave Relief to Abraham Hill who had been committed to Prison by the Major of Colchester Multitudes of such Presidents may be produced who will take the pains to look over the Journals but these are sufficient to shew that upon complaint the House of Peers hath still given Redress to what ever hath been done amiss by any other Court Ecclesiastical or Civil Court of Law or Court of Equity and was never found fault with till now But now they must not meddle with Appeals from Decrees in Chancery and if a Member of the House of Commons be concerned it is then a Breach of their Priviledge and that House will punish any Counsel that shall appear at the Lords Barr to plead against a Member together with the Party himself that brings the Appeal and all others employed by him in the solliciting and following his business So then a Person that cannot obtaine Justice in Chancery who perhaps hath been brought thither against his will and is barred by an Injunction there from pursuing his Right in any other of the Kings Courts of Westminster and that wrongfully as Injunctions are some times laid on in Chancery There he cannot have Right but is opprest with an unjust Decree and he hath no Remedy but must lie under that Oppression and the Supreame Court of Judicature in the Kingdome which receives Complaints and gives Relief against the Erroneous Proceeding of all other Courts must be Impotent in this behalf This is not only a Derogation to the High Court of Parlament but it would be a great Defect in the general Administration of Justice in this Kingdome To this is answered Yes there is a Remedy proposed to prevent a Failer of Justice The King may grant a special Commission whensoever there is occasion to certain Persons to the Judges as it was 43. Eliz. to reheare the Cause and give relief to the Party grieved But it is replied First That it may be doubted if this can be done without an Act of Parliament Secondly Admit it may yet as the King may grant it so he may refuse it for there is no Law to make him do it Ex debito Iustitiae therefore if he doth it it will be but Ex gratia ex mero motu which doth not salve the Objection that there would be a defect in the established Rule for the Administration of Justice which ought to make the doeing of Justice a necessary Duty incumbent on the Magistrate be he Supreame or be he subordinate and not leave it voluntary to himself to be Ad libitum It cannot be believed that the Wisdome of our Ancestors would leave the Administration of Justice so loose and uncertaine We see how in the time of Henry the Eight when they annexed all Ecclesiastical Jurisdiction to the Crown they by Act of Parlament 25. H. 8. c. 19. gave the King power by Commission under the Great Seal to appoint such Persons as he shall Name to reheare any Cause
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
ad Errorem corrigendum Here is a Negativa praegnans to the House of Commons Et non per Communitatem as if it was not enough to say by the Lords alone there is added That it must not be by the Commons Nothing can be clearer than this and the Practice hath been according to it in all times both preceding and following Some question hath been made of Appeals from Courts of Equity whether or no that House hath Cognisance of them And more is it questioned If a Member of the House of Commons hath been concerned in the Appeal which hath now this last Session of Parliament been absolutely and peremptorily denied and strongly opposed by the House of Commons But I no wayes doubt of making it appear as clear as the Noon-day that all Appeals whoever is concerned in them are regularly and properly within the Cognisance and the Jurisdiction of the House of Peers and so have ever been And to speak truly There was Antiently no difference in the way of complaining of Erroneous Judgements given in Courts of Law and that of unjust Decrees made in a Court of Equity Both were by way of Petition from the Party grieved setting forth the Cause of his Complaint and shewing wherein the Court had Erred in the Adjudging and Determining his Cause before them In the Rolls of Parliament from the beginning of Edward the Third to the end of Edward the Fourth which are all that are in the Tower there is no mention of any Complaint of an Erroneous Judgement brought into Parliament that is to the House of Peers by a Writ of Error as it is now the Practice from the Courts of Law but all were by Petition as the Appeals are now from Decrees in Equity And this Change is crept in of late Years we know not how nor exactly when but certainly in those times of which the Parlament Journals are either totally lost as those of the times of Richard the 3 d and Henry the 7 th and between the 7 th and the 25 th of Henry the 8 th or else made so Concise and Imperfect recording nothing but Bills and their several Readings and some Proceedings upon them and very little as good as nothing of any private Businesses that one cannot have a certain knowledge how the Judicature was then exercised in the House of Lords as appears by the Journals extant of H. the 8 th and all since even till the 18 th of King James when Henry Elsing came to be Clerk of the Parliament who first took care to enter duly in the Journal Book all that passed in the House But however this Alteration and the difference that seemingly is between complaining by a Petition of Appeal and bringing of a Writ of Error hath given occasion to the House of Commons to Dispute the Jurisdiction of the House of Peers in case of Appeals and pass some Vote against it and more Declaredly and Avowedly to oppose the Proceedings of the Peers upon Appeals when any Member of their House hath been concerned For Appeals in General They have declared that the House of Lords hath no Right to Receive and Judge of any from Courts of Equity a thing was never Questioned in any preceding Parliament though it hath been ever Practised And there is the same Reason for it if not more than for their reversing Erroneous Judgements at the Common Law For in the Courts of Common Law there are Four Judges and they will not easily be all mistaken and all concur in giving a false Judgement and a Suitor there is more like to receive Justice especially in regard they have a strict Rule to go by the Rule of the Law which is a known Rule than where there is but one Judge as in Chancery and who hath a greater Latitude to proceed by varying from the exact Rule of Law and guiding himself much by his own Discretion It is easie for such a Judge to err though perhaps not willingly and hard it were that there should then be no Remedy But it will be said The King may then grant a Commission to certain Persons to give Relief to such as shall find themselves aggrieved with any unjust Decree as was done by Queen Eliz. in the 43 d. year of her Reign in a Case of the Countess of Southampton and the Earl of Worcester mentioned by Serjeant Rolls in the Report of the Case of Vaudrey and Pannel p. 331. where he saith it was resolved by all the Judges which they set under their Hands that when a Decree is made in Chancery upon Petition to the Queen She may refer it to the Judges but not to any other but to them to Examine and Reverse the Decree if there be cause and accordingly by such a Reference that Decree was Reversed Sir Edward Cook also in his 4 th Institute c. 8. treating of the Court of Chancery gives two Presidents more of the like nature one of the same 43. Eliz. in Sir Moyle Finches Case he Defendant the Earl of Worcester and others Plaintiffs whereupon a Petition to the Queen a Decree in Chancery was referred to the Judges and their Resolutions against it being certified into the Chancery the Decree was Reversed The other President is three Years before 40. Eliz. in Throgmorton's Case the same Sir Moyle Finch there likewise Defendant where a Demurrer of his being Over-ruled by the Chancellor upon a Reference to the Judges it was by them otherwise resolved and their Resolution being by the Chief Justice Popham signified to the Chancellor there was no further proceeding in Chancery To these Presidents is answered First That it may be doubted if the Opinion and Proceedings of the Judges at that time be so authentick as to make it pass for Law to set up a new Court of Equity Sir Edward Cook in the same Treatise fol. 87. saith in Perrots Case Mich. 26 and 27. Eliz. That it was resolved by Sir Christopher Wray Chief Justice and the Court of Kings Bench That the Queen could not raise a Court of Equity by Her Letters-Patents and that there could be no Court of Equity but either by Act of Parliament or by Prescription time out of mind And in Hobberts Reports fol. 63. in the Case of Martin and Marshal it is said That this Court of Equity is a special Trust committed to the King and not by him to be Committed to any other but his Chancellor How then can King or Queen Commissionate any or her Persons to be Judges in Equity of any Cause For what is it but a Court of Equity when all the Judges are Commissionated to assemble themselves to rehear a Cause formerly Decreed in Chancery which they do Judge a-new and Determin it upon hearing Counsel of both sides for or against the Decree Secundum aequum bonum according to the Course of Equity and not by the strict Rule of Law This is certainly at least a Temporary Court of Equity It is true that for
But let us take the House of Lords as it is though there be many young Men there are some more Elderly and it is they commonly that sit out hearing Causes and even amongst the young Lords there be some that apply themselves to Business In the general it may be said of that House that many among them are Persons of Honour and of Integrity that will not be Byassed and of experience to Understand and Judge aright of such Matters as are brought before them The great Officers of the Kingdome are part of that Body who in all reason should be knowing Men the Chancellor of England is alwayes their Speaker who is commonly a Person skilled in the Law and they have all the Judges of the Land to be their Assistants with whom they advice and by whose advice they are guided in difficult Points of Law as it is said in Flouredew's Case 1 H. 7. Ter. Pasc. f. 20. Senescallus cum Dominis Spiritualibus Temporalibus per Consilium Iusticiariorum procedent ad Errorem corrigendum by the Counsel and Advice of the Judges they shall correct the Errors viz. of the Judgement complained of So it is probable and there is Ground to hope and expect one may find Justice here as soon as â—n any other Judicatory Nay perhaps sooner here For when a Lord Chancellor or a Lord Keeper is concerned as he is in all Appeals from Decrees in Chancery which is the proper Question at this time before us a Commission to the Judges or to any other Sett of Men is not so likely to relieve a poor Man that is opprest by an unjust Decree whereby those Commissioners may incurre the displeasure of so great a Person by censuring and vacating his Act as the House of Peers who are not in that Awe of him and Subjection to him as all particular Persons are Which consideration alone hath heretofore been sufficient to justifie the Lords interposing even in the ordinary Judicature of the Kingdome in Causes between Party and Party And the Commons themselves did then so farr approve of this as they made it their desire to the King that it might be so So as it passed into a Law to be an Act of Parlament and a Statute according to the Formality of making Lawes in those times 1 R. 2. m. 11. They pray Que querele entre parties ne soit attemptez ne terminez deuaunt Srs. ne Officiers du Conseil mes que la commune ley courge sans estre tarie es lieux on ils soloient dancien temps estre terminez sil ne soit ticle querele encontre si grande personne que home ne suppose aillours dauoir droit The Answer is Le Roy le voet They pray That Sutes between Party and Party may not be retained and determined before the Lords nor before the Councel but that the Law may have its Course and no Obstruction of it bâ— there where such Businesses did antiently use to be determined except it be in such a Sute and against so great a Person as one cannot otherwise hope to have Justice and the King grants it And 1. H. 4. n. 160. this Statute is again Confirmed Now I know not what Sâ—â—â—e nor what Business can be fitter to be within this Exception then where a Lord Chancellor or a Lord Keeper is concerned for the maintenance of a Decree which himself hath made Besides we know what Influence that great Officer hath in all Commissions that Issue under the Great Seal for naming and appointing the Persons that shall be Commissionated by them And certainly one that complaines of Injustice done by so great a Person would not willingly that he should have hand in appointing the Persons that must Examine and Redress it So as all things considered I do not see where such a Power as this could better be lodged then in the House of Peers if it were not already there and that we were now to chuse where it should be placed Yet all Men are fallible and Parlaments may erre and do erre many times and therefore as commonly second Notions and second Thoughts are better and consequently second Judgements so there lies even an Appeale from the first Judgement in Parlament but it must be still to the Parlament as the Law Books say Error in Parliament convient estre reverse per Parlament that is in another Parlament or another Session not in the same All this tends to shew that not onely the Right of Appeales is in the House of Lords but that neither can it be better any where else Yet there is still one Point behind not yet treated of which must be cleared before I make an end and that is Whether the Lords may proceed upon an Appeale if a Member of the House of Commons be concerned And the same question then may be moved concerning Writs of Error for if the Priviledge of that House extends to the one it must extend to the other the same reason being for both as likewise for the Lords not medling with any Business wherein any of their House is concerned In the first place let us consider what the Usage hath been heretofore and what the Judicature of the House of Peers hath been and how exercised in relation to the House of Commons That heretofore in the Antient times even till Henry the 8 th when the House of Commons did need any thing either for repelling any Injury done to them and punishing those who had done it or for supplying them with any thing they wanted and desired for their advantage and well being they did then come and pray in the Aide of the Lords who did examine the particular Businesses and apply the necessary Remedies they being altogether unable to help themselves hath I think been sufficiently proved already in the former part of this Discourse The Question is now as that was when they complained and when it was at their desire so if when others complained of them and sought remedy against them the Lords had then power to receive the Complaint and relieve the Party grieved Which questionless they had Nor was it ever knowen that ever the House of Commons did before pretend to such a Priviledge as that their Members should be exempt from being put to answer in the House of Lords when any Sute was there commenced against them 16. R. 2. n. 6. Sir Philip Courtney being Knight for Devonshire presents himself to the House of Peers Disant coment il auoit entendâ—z que certeins gentz lui avoient accusez esclandrez au Roi as Seig rs c. Saying he heard he had been accused and slandered to the King and Lords of doeing great wrongs and prayed he might be discharged from serving in Parlament untill he was purged and cleared of them and the Record saith A cause que sa priere sembla au Roi as Seig rs honeste le Roi luy ottroya sa requeste lui en dischargea because
no sending of Counsell to the Tower for pleading for their Clients at the Lords Bar no stop of the Current of Justice It was then observed what the Wisdome of our Fore-Fathers had enjoyned Westminster the 2 d. Nemo recedat a Curia Regis sine remedio But if that should be allowed which is pretended and challenged by the House of Commons as their Priviledge if a Member of theirs be concerned though a Man have received never so hard measure though never so erroneous and unjust a Judgement have been given against him in any of the Courts of Westminster Hall for there is the same reason for both for Writs of Error from a Court of Law as from Appeals from a Court of Equity if Priviledge of the Commons House exempts from the one it must exempt from the other there is no help for him he must sit down and lay his hand upon his Mouth and not once whisper but must Recedere a Curia Regis and that the chief Court the supreame Court sine Remedio So here is an absolute failer of Justice which as Sir Edward Cook saith the Law abhors And as it seemes to me it is upon an irrational ground For here is Priviledge of Parlament against the Parlament it self which makes a Parlament Felo de se to give a Priviledge which enervates it's Power a Power which is proper and peculiar to Parlaments the Dernier Ressort by which it helps when no other Court can help This is taken away and cannot exert it self when a Member of the House of Commons is concerned Against the Rule of all Courts for in other Courts as Chancery Kings Bench Exchequer the Officers that belong to those Courts claime a Priviledge to be sued no where else but no Priviledge to free them that they shall not be sued in their own Courts Now the House of Peers is a Court of Judicature as it is a Part of the Parlament Pars constituens of a Parlament and the Members of the House of Commons have Priviledge as they are Members of Parlament and as their House is the other Pars constituens of a Parlament for both together are Partes constituentes Parliamentum and both make but one Parlament though they be two several constituting Parts And it is not rational to think that either of those Parts can be entituled to a Priviledge which shall abridge the other Part from doeing those Functions which are proper and natural to it As if the House of Peers should assume to themselves a Priviledge that the House of Commons could not without their leave and consent first had propose the Raising of Moneys by way of Tax or Subsidy This is against the nature and constitution of our Parlaments and therefore it cannot be imagined to be true that such a Priviledge can belong to the Lords by one that understands any thing of the Nature of Parlaments And truely it is even as great an Absurdity to say that the House of Commons hath a Priviledge to give a stopp to the Lords proceeding in the hearing of a Cause as a Court of Judicature if one of their Members is concerned in it For the hearing of Causes by way of Appeale or of Writ of Error is as proper and as natural to the House of Lords as a Bill of Subsidy to begin in the House of Commons is proper to that House But I have heard it said that this would be destructive to the House of Commons if the Lords could compell their Members to appeare at their Barr and attend their Causes there and if they would not appear commit them as is the use of other Courts For say they as they commit one they may commit more and even fetch them all out of the House to leave none or not a number to attend the Service there But first this is a mischief so unlike ever to happen that one need almost as little fear it as the Skie falling to kill all the Larks if it were so that they should take upon them to commit those that would not appeare and answer For it is not to be imagined that so many would be concerned in Appeals or Writs of Error at one time as that there would not be enough left to carry on the Business of the House since at most perhaps two or three in a whole Session may be concerned And if so small a number should for their particular occasions which they cannot avoid being sued by others be kept for some few dayes from attending the Publick Service the Matter seems not so great since all along this Parlament for twelve or thirteen years together this House hath had the goodness to dispense still with the attendance of at least two hundred of their Members who have remained at their several Homes for their pleasure many all for their private occasions without coming at all to beare their parts of the Houses Service This is more like to be an Inconvenience to that Service then if the Lords should commit two or three single Persons amongst them for not appearing upon Summons when they are sued before them But none of this need be feared For the House of Lords doth not pretend to a power of committing any Member of the House of Commons if they will not appear nor any Body else for not appearing or not answering being sued before them in a Civil Cause If they will not appeare by themselves or by their Atturney and put in their Answer being lawfully Summoned and having no lawful Excuse for not doeing what is required of them and what they ought to do but will stand out in contempt of their Jurisdiction they will proceede to hear the Cause Ex parte and determine it as they did in the Case of the Deane and Chapter of St. Cedde in Lichfield and the Prior of Newport-Pannel upon a Writt of Error 18. R. 2. n. 11 12. c. The Deane and Chapter had the Parlament before preferred a Petition An̄re S r. tres redoute le Roi a les nobles S rs de cest Parlement c. complaining of a Judgement in the Kings Bench by which an Annuity of 20 Mark per ann and an Arreare of an hundred which they had recovered in the Common Pleas was judged against them in the Kings Bench and had prayed a Scire facias for the Prior to appeare returnable this Parlament which was granted And the Prior now Solempniter vocatus non venit being solemnly called appeared not Whereupon the Record saith Decanus Capitulum petierunt Iudicium Parliamenti quod ob defaltam nunc Prioris procedatur ad examinationem Recordi Processus praedicti Brevis de Errore Quod in Parliamento concessum est The Dean and Chapter demand Judgement and that upon the Default of the Prior they will goe on to examine the Business which the Parlament granted They do so and then give Judgement for the Dean and Chapter And in truth there is all the
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