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
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