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
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
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
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