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
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
to the Jurisdiction of Parlament which one may boldly conclude both upon the general Reason of all Inferior Courts being subordinate to the Supreame Court and particularly from the Constitution of the Court of Chancery which in it's antient Legal capacity as it acts Secundum Legem consuctudinem Angliae is in such a subordination and A fortiore then ought it to be so acting in a capacity of a later Acquisition and in a more arbitrary and irregular way In latter times that is from 12. Iac. all the last Kings Reigne and so much as is past of the Kings Reigne that now is Presidents are frequent of Appeals in Parlament from Decrees in Chancery which yet is five and fifty yeares And it hath formerly been the Opinion of the House of Commons that moderne Presidents were best and strongly was it urged by them in the Case of the Earle of Clarendon to induce the Lords to commit him to Prison upon a general Impeachment of Treason without special Matter shewen from one single President of that being done in the Case of the late Earle of Strafford against multitudes of Presidents produced to the contrary But now they are of another Mind And because we find not in the antient Rolls of Parlament Presidents full in the Point of Appeals from unjust Decrees in Chancery they doe deny that the Parlament hath now such a Power of receiving Appeals To which it hath been already said That the antient Rolls since the time that the Chancery hath Acted as a Court of Equity in 17. R. 2. are many of them lost those that remaine are very general especially since Henry the sevenths time mentioning onely publick Bills scarce any thing of particular Businesses sometimes naming the Parties that had Sutes depending in the House of Peers but not expressing the Matter in difference that one cannot tell whether they were Appeals or Original Causes Let any body peruse the Journals of Parlament of H. 8. E. 6. Q. Mary and Q. Elizabeth and he shall find it so But goe to the times before and you will see that the House of Peers did exercise their Jurisdiction over the Chancery as well as over all the other Courts of Westminster And this they have done in all times The Statute of 14. E. 3. shews they did it in case of delay of Justice And they have sometimes stopped a Proceeding in Chancery and ordered the Businesse to be proceeded in in another Court 3. R. 2. n. 22. Sir Philip Darey complained that the Prior of St. Iohn's of Hierusalem â—ued him in Chancery for two Mannors which he said that Edward the 3 d had granted to his Father and produced a Deed shewing that the Priors Predecessor had passed away the Fee of those Mannors to Edward the 2 d. The Lords order that Deed to be carried to the Barons of the Exchequer they to examine the King's Title and the Proceedings in Chancery to be stopped The same Parlament the Earle of Pembrook and William de Zouch complaine that Sir Robert Roes and Thomas his Son Sued them in Chancery for certain Lands in Yorke-shire that had been formerly belonging to William Cantloe pretending certaine Feoffments to have been made by Cantloe to their advantage and that they endeavoured likewise to get an Order for a Tryal in the Countrey where they were powerful The Lords take the Matter into their own hands and refer the Examination to three of the Judges Kneuet Cavendish and Belknap to examine and report who doe report those Feoffments to be otherwise then Sir Robert and his Son pretended The Chancellors have themselves sometimes Repaired to the Lords for direction in Businesses of Difficulty and of Consequence as 9. H. 5. The Abbot of Ramsey Sueing in Chancery for a Prohibition to stop Proceedings in the execution of a Sentence given in the Arches against his Tenants in a Case of Tythes the Bishop of Durham Lord Chancellor brought the business into the House of Peers to have their direction in it declaring all that had passed before him and Counsel then being heard on both sides the Duke of Bedford who was Guardian of the Realme in the absence of the King and the Lords asked the opinion of the Judges who were there present the Judges of ei Bench and the Chief Baron charging them to give Lour bon advis selone l'exigence de la ley pur de pluis seure exhibition de Iustice celle part to give their Advice what was required by Law for the more certain rendring of Justice in that particular which they did And after mature deliberation Sentu suit per le dit Gardein Seignors selone l'advis de le dits Iustices Baron c. It was resolved by the said Gaurdian and Lords according to the Advice of the Judges that no Prohibition should be granted We see by these antient Presidents the Power that the House of Peers did heretofore exercise over the Court of Chancery It is true that we have not such frequent Examples of it in those times as we have of latter dayes within some fifty or threescore years since the work of that Court hath swelled to that bigness as now it is which hath furnished much Matter for Appeals and was never questioned till now In so much as in the Year 1666 when the Case of Skinner the Merchant complaining of Wrongs done him by the East India-Company was before the Lords the House of Commons interposing and declaring against the Lords meddling with an Original Cause and denying them that Jurisdiction to which notwithstanding their Lordships had an undoubted Right and maintained it to the last both by Reason and Presidents yet the House of Commons in all those Debates and Conferences upon that Subject alwayes allowed them their Judicature in Appeals and Writs of Error which they said they did not at all question but now they are come to question Appeals one step further and upon the same Ground and with as much Reason they may take away Writs of Error next and so put an end to all Judicature in the Supreame Court of Judicature But I hope I have made it clear that both those parts of Judicature are and must be Essentiall parts of the Supreame Judicature and the Matters they concern to be wholly within the Cognisance of it That which I heare sticks with many is the present Constitution of the House of Peers Composed of so many young Lords who have not Experience in Business and may be thought to mind Modes and Fashions more then serious things And perhaps the Prospect of what is coming on may in their Opinion not give better hopes However Right is Right If it be a Right belonging to them till there be a Law to dispose of it otherwise it ought not upon any prudential Ground to be taken from them that were to set the House of Peers very loose for by the same reason one may as well take away all their other Rights and Priviledges
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
Reason in the World it should be so that a Man who wilfully and contemptuously will refuse to appeare and will not stand to the Law should at least not receive benefit and advantage by his contempt and by his own default Otherwise it is but not appearing and one is sure never to have any thing judged against him but he shall keep what ever he is once possest of right or wrong Therefore the House of Commons need not fear being deprived of any of their Members for their being sued in the House of Peers their Persons are safe whether they appeare or no but that must not hinder the Lords doeing right to others who have to doe with those Members and have Cause to complaine of some Judgement given in their behalves in an Inferiour Court so that Objection falls to the ground Nor in truth have I heard any that is of weight to make me so much as hesitate in my Opinion of the truth of those Positions which I have ever believed to be most true and which I laid down at first to be the ground of which Discourse and this I have endeavoured to make out to the satisfaction of others As first That the Parlament is the Supreame Court of Judicature to Reforme and Redresse the failings of Inferiour Courts when either they delay Justice or give wrong Judgements Secondly That this Jurisdiction is solely and singly in the House of Peers Thirdly That the House of Peers exerciseth this Jurisdiction to the Reliefe of those who are Aggrieved and Complaine be it a Court of Law or a Court of Equity they complaine of Fourthly That Members of the House of Commons are not more Exempt then others from this Jurisdiction when they are concerned in any Case that is complained of Now whether or no I have performed what I undertooke and said that which will satisfie those who will be satisfied others must Judge This onely I will be bold to affirme that in all I have said I have delivered the Truth and nothing but the Truth but perhaps not all that is Truth upon this Subject For I doubt not but much more may be said by those that know more then I doe and who are better skilled in the Antient Records of Parlament then I am yet I have said so much and am so much more confirmed in my former Opinion and Belief of this truth by looking a little further into it and examining it more narrowly then otherwise I should have done if it had not of late been questioned and strongly opposed that I shall be glad to heare what can be said against it and what reason can be alledged in maintenance of that Opposition Till when I shall rest heartily wishing Truth may prevaile and that to stand and be submitted unto which is agreeable to Justice Equity and the antient Usage and Custome of this Kingdome FINIS ERRATA Page 20. Line 15. for defauce Read defaute and l. 17. for forsement 1. fortement Postscript IN the citing of the Record of the Agreement between the King and Lords 4. of E. 3. mentioned pag. 19. one passage in it may be thought to have been purposely omitted which truly was meer Inadvertency and it seeming to restrain the Judicial Power of the Lords that it should not extend to the Judging of Commoners I have thought fit to insert it here The words are these after saying That it was agreed between the King and Lords Qe les Pieres qores sont ou les Pieres que seront en temps auenir ne soient mes tenuz ne chargez a rendre jugements sur autres qe sur lur Pieres there is added Ne a ce faire mes eient les Pieres de la Terre poer eins de ce pur touz iours soient deschargez quitez That the Peeres of the Land may not have Power to doe this but that for ever they may be discharged and freed of it that was of Judging any but their Peeres And if this had been an Act of Parlament which had passed both Houses and becomed a Law by having the Kings Assent to it no question the Lords had been bound up and without another Act of Parlament to Repeale this they could not have exercised that Jurisdiction which they have exercised ever since in all Parlaments and which those Lords themselves who made that Agreement and Bargaine with the King did afterwards exercise in that very Parlament in the Case of Sir Thomas de Bercley whom they Tried for the Murther of King Edward the 2 d. The truth is as is before said in this Treatise it was but a sudden effect of Passion and of an Indignation which they had conceived against themselves for what they had been forced by the King to do most unjustly in condemning the Earle of March and Sir Simon de Beresford to death without calling them to answer Nor yet do they say they had not Power clean contrary it appears they had it for they desire that Power may be taken from them that neither they nor their Successors may have it for the future but then having it they could not by this act of theirs divest themselves of it For nothing but a Law could doe that and it is cleare that this was none but meerely an Order of that House of which themselves were Masters as the House is still of all it's Orders and may alter or revoke them as it pleaseth and themselves it seems did revoke this Order for they afterwards in that very Parlament did the contrary in the Case of Sir Thomas de Barcley But admit they had done so and that their Order had still continued in force as to them it could have no operation upon succeeding Parlaments to bind them So as this Record cannot be said to be of any signification to impeach the Power of Judicature which is in the House of Lords no not in the least degree But I was willing not to conceal any thing which hath but a semblance the other way And indeed indeed the Truth will the better appear and be made the more clear and perspicuous by shewing the weakness of all that can be said against it FINIS