the Petitions must be To the King and his Great Council this is very observable Note here That the Direction and Entitling of Petitions to the Lords Spiritual and Temporal in Parliament Assembled omitting and leaving out the King in the Direction as it is now used and hath been ever since King Charles the First went away from the two Houses in 1641. is not according to Ancient Form and Custom And that the Ancient accustom'd Form was not to the Lords by the Title of the Lords Spiritual and Temporal assembled in Parliament as now used but to the Great Council Whom that great Council did consist of and by whom Nominated and Constituted I have made some conjecture by what I have before in this Treatise discours'd of concerning that Magnum Concilium in Parliamento and concerning the ancient and constant usage till of late years and until the separation between the said King Charles and the Parliament of the King 's appointing Triers of Petitions in every Parliament Let the Reader take occasion here to look back upon what I have herein already discours'd upon this Subject which may give light to this matter In the last place the Archbishop reports That they could find but only one Precedent of this nature which was a complaint by Petition against Michael de-la-Poole Lord Chancellor for matters of Corruption Which Precedent I have mention'd before for Michael de-la-Poole Lord Chancellor was accus'd in the Seventh year of King Richard the Second by Iohn Cavendish of London Fishmonger for Bribery I presume too according to the usual Form of Petitions as the Archbishop reports them to be that this Petition was directed to the King and his Great Council and not to the Lords c. assembled in Parliament But I conceive this only Precedent as the Archbishop calls it is no Precedent of the same nature as hath been so frequently used of late and still is for an Appeal against a Decree meerly for Error in Judgment For to Err in Judgment in making a Decree and for the Judge that makes the Decree to receive a Bribe in the case are two different things for to Err in Judgment as Humanum est Errare is of a meer civil Nature but to be corrupt and take a Bribe though the Decree be just is of a Criminal Nature and therefore not to the purpose of what we are discoursing And there are about 240 years distance in time between this only Precedent and the time of this search made by the Committee of Lords viz. 18. Iac. 1. a large Casma in a usage and custom for the Exercise of a Jurisdiction And the matter in hand must still be determin'd by Precedent and Custom Consuetudo Parliamenti est Lex Parliamenti is the old Rule This complaint by Sir Iohn Bourchier was in a matter not of Error in Judgment for then that Error must in particular have been assign'd and the Judge not have been reflected upon but the complaint is of a Male-administration in the Judge an hasty Hearing and Witnesses not heard And therefore the Lords in that case censure the Petitioner for casting a scandal upon the Judge For the Lords Examin'd the matter and found the suggestion of the Petition to be false The Cause had had a deliberate Hearing and the Petitioner's Witnesses had been heard yet the Petitioner for the scandal had but an easy pennance and that was remitted wholly viz. to acknowledge this offence But note this was a proceeding against him upon his own Petition He himself Entitled the Lords in this case to a Jurisdiction It doth not appear that any Adverse party was Summon'd to defend it the Lord-Keeper himself defended it upon the point of scandal There is yet another most Memorable Case in the very Journal of the Lords too and that is Four years after viz. 22. Iac. 1. which is as followeth and it comes strongly home to the point in hand viz. of Appeals 28. May 22. Iac. 1. William Matthews petitioned against George Matthews by way of Appeal in the House of Lords and question'd a Decree made by the Lord-Keeper in Chancery on the Defendant's behalf from which Decree William Matthews Appeal'd It is to be found in the Journal of the Lords 28. May 22. Iac. 1. The Lords Committees who were appointed by the whole House to Examine the Cause Heard Council on both sides several days and Reported to the House their Opinion for the Petitioner and Appellant Thereupon the Respondent George Matthews petitioned the Lord's House against that Report and Opinion of the Committee and in his Petition alledges That he was inform'd by his Council That it had been the course of the House to Reverse Decrees only by Bill legally Exhibited that is by a Bill to pass into an Act by Parliament for what can a Bill in that case otherwise signify This shows that the whole Parliament are the proper Judges of it The Lord's House hereupon being tender and cautious how they entertain'd a new Jurisdiction name another Committee of Lords to set down an Order in that Cause That Committee Report their Order viz. That the Cause be Review'd in Chancery by the Lord-Keeper by such Lords as the Lords House should name and by any Two of the Judges as the Lord-Keeper should name For which end the Lord-Keeper is to be an humble Suitor to the King from the House to grant a Commission to himself the Lord-Keeper and the Lords to be named by the House The Lords House approv'd of the Order and named Seven Lords The King granted the Commission accordingly and the Decree in Chancery was Revers'd upon it The Orders are to be seen in the Register's Office of the Chancery Mich. and Hill 22. Iac. 1. This is a dischargiâ—g all that the Lords had before done in it though they had in effect arriv'd at the very Port and made a conclusive Order and Decree But after all refer it to the right and usual Method in the main of it viz. to be determin'd by a Commission from the King to the Lord-Keeper himself to Salve his Honour in it Quod in consultò fecimus consultò revocemus and to some Judges who are the most proper and to the Lords who for that purpose were recommended by the House of Lords which is in compliance with their desire but not Stricti Iuris But the King's Commission is the true regular and warrantable ground and foundation of all the further Proceedings in that Case And all this by the Direction and with the Opinion and Judgment of the Lords themselves in a Case wherein they had begun and made a large progress in the Exercise of a Jurisdiction and then wholly desisted Nor is the Subject without a proper and ordinary remedy if our Law-Books may be credited where he is grieved by an Erroneous Decree in a Court of Equity See Serjeant Rolles's Reports the 1 st Part Fol. 331. the Case of Vaudrey against Pannel Sir Edward Coke
same instant make their Observation of these particulars ensuing which I conceive will evidently result and arise from them 1. First That the Supreme Power of Legislature and the Supreme Power of Judicature which yet are distinct things in themselves for it is one thing jus dare and another thing jus dicere both these high Powers I say under our several Ancient Kings resided in one and the same Assembly consistting of the very same Persons but with different methods in their way of proceeding that is whoever had an hand in the Legislature was not excluded from the Judicature wherein it differs from our present Constitution which is that the House of Peers who have but a share in the Legislature yet now claim to themselves the sole power of Judicature as the last resort 2. Secondly Another thing that I shall observe out of the several Precedents and Authors that I shall mention is this That the great Convention and Assembly that anciently had these Two great Powers of Legislature and Judicature were but one entire great Body and Assembly not divided into two or more parts nor distinguish'd as now into Two Houses or by the names of Lords and Commons but these Powers resided equally in them Tota in Toto 3. Thirdly That all or the far greatest part of the Members of these great Assemblies came not thither by the choice or at the will and pleasure of the Prince as he thought fit to single them out by name as Peers are made usually nor did they all come by Election or Office though there were some of both those sorts viz. The Bishops and the Burgesses of the Burroughs but the far greatest part came by a certain Right they had to meet in those Assemblies but what gave them their Right or qualification or capacity so to meet doth not so clearly appear to an hasty Reader of our History and Antiquities It is evident it was not any meer Title of Honour or Dignity for Anciently in England there were not any Dignities but what were also accompanied with Offices and ceased with the Office But it did proceed from their Lands and Posessions which as they gave them Honour so they gave them Power and Authority in those Ancient Times And this they learnt from the Romans whose Example was followed herein by most of those Nations that had fallen under their Conquest 4. Fourthly These Assemblies were very great and numerous far exceeding in number both Houses of Parliament at this day were they both put together so that they cannot with any colour of Reason be thought an Assembly of Lords only as our Novel Writers would impose upon us for it is absurd to think that so great a number should be all Lords for then there would be none left in the Nation to bear the Character of Commons save only the Plebs or Faeces Populi And the Title or Distinction of Lords cannot subsist without a body of some Inferiors from whom the Lords may be distinguish'd Tolle Relatum tollis Correlatum 5. Fifthly Though the Freeholders of the several Counties did not then as now meet in those Assemblies by their Representatives duly chosen so that any Assembly could properly be said to be the Representative of all the Commons of England which is much insisted on by our new fort of Authors who would decry and depress the House of Commons as being but of yesterday in comparison with the Antiquity of the House of Lords that is but from the Nine and Fortieth year of King Henry the Third whereas the Lords have been as they affirm from time immemorial and co-aeval with the Nation it self yet which is more in Vindication of the Antiquity of the Commons in Parliament it will appear that the Freeholders generally met there themselves in the great Assemblies then used in their own proper persons undistinguish'd by any such Terms of Lords and Commons and all were upon the same level A Representative is but of the Nature of a Deputy or Delegate to supply the place of one that is absent such as in the House of Lords they call Proxies who sometimes have been such as were no Members of that House and such as in the Convocation of the Clergy they call'd procuratores Cleri But the great Freeholders as being the Principals rightly called may more properly and in a true genuine sense be stiled The National Assembly Those met in their own proper personal Capacity for the Land-Interest in the hands of the true Owner the Freeholder is the only true stable permanent fixed Interest of the Nation The Farmers and Copy-holders were at first and in Ancient Times look'd upon and accounted but as Servants and Dependants upon the Freeholders and little regarded by the Common-Law And for those that followed Merchandize and Trade though they ever sent to these great Assemblies by Election the Manufacture of Woollen Cloth greatly flourishing in the Reigns of King Henry the Second and King Richard the First which gave occasion to those Ancient Guilds or Societies that were setled in Lincoln York Oxford and other Cities and Ancient Burroughs in England which Trade was wholly lost in the troublesome times of King Iohn Henry the Third Edward the First and Edward the Second And then our Trade ran in Woolls Wooll-fels and Leather carried out in Specie till recover'd again by the peaceable times of King Edward the Third as the most Learned in the Law the late Chief Justice Hales does assert in his Origination of Mankind yet those Ancient Burroughs were not then so numerous in those Elder times nor were the Traders then in so great Esteem as having to do in Moveables only and a transient Interest and as we use to say Here to day and gone to morrow and were therefore of an Inferior account and made no great Figure And it was then a Legal Disparagement for the Guardian in Chivalry to marry the Ward being the Heir of a Freeholder that held by Knights's Service to the Daughter of the Burgess of a Burrough 6. Sixthly The last Observation shall be this That the Freeholders encreasing at last in their number by the sub-dividing of their posessions and tenures and thereupon growing seditious and tumultuous and an unwieldly Body and less valuable and venerable in their Individuals and particulars Mole ruebat suâ they came to be divided and the greatest part of them at last discontinued their coming to these Assemblies and so they broke in two and fell into two Houses and their Powers became parted between them and one part assum'd or had assign'd to them some of the Powers and the other part what was left Cúm quercus decidit unusquÃsque ligna colligit Yet there is reason to think that it was thus distributed and determin'd by Agreement in a National Assembly These Observations and Conclusions I have thought fit and proper to propose before I peruse the Precedents and cite my Authors That the Reader may take notice by the
where the King is concern'd the Lords have no Jurisdiction without the King's allowance and the King doth not think fit to refer it to the whole House of Lords yet the King will have Justice done and he will be inform'd if the Outlawry were duly sued out But the King himself assigns the persons that shall judge of it And yet it is said that this is suing Error in Parliament for when the Parliament is risen it is held that the Delegates appointed by the King could not proceed So that Pleas may be held in Parliament by the King and his Council such as he shall specially appoint for that purpose at every Parliament And yet they may be stiled Placita Parliamentaria being transacted only in time of Parliament but not by the Parliament This case of Edward Hadelow teaches the true nature and course of a Writ of Error in Parliament and the right method of proceeding upon it and the King's Prerogative in it And how that case wherein the King is any way concern'd in interest as he is in cases of Outlawry shall be Examin'd by none but such as are specially assign'd by the King See the case in the Year-Book of 1 mo Hen. the 7 th Fol. 19. Flourdew's case By Advice of all the Judges in the Exchequer-Chamber which is a case Reported in Latin Oportet partem habere billam de Rege indorsatam Et super hoc Cancellarius faciet breve de Errore Et tunc capitalis Iusticiarius de banco Regis so that it is only from the Court of King's-Bench but no other Court Secum adducet in Parliamento breve de Errore Et praedictam billam sic indorsatam And the Clerk of the Parliament is to have the keeping of the Bill Endors'd This proves that it is their Commission by which they proceed and it must remain with the Clerk of the Parliament not with the Chancellor The Lord Dyer's Reports 23. Eliz. Fol. 375. tit Error Plac. 19. there is a Supplication Sign'd by the Queen for a Writ of Error We have another Precedent in Sir More 's Reports Fol. 834. in the case of Heydon and Sheppard pasc 12. Iac. 1 mi The like in Leornard's Reports the 3 d. part Fol. 160. in the case of the Queen and Hurlston Now concerning Proceedings in Equity in general the English Court of Chancery the Court of Equity there it hath not been of any great Antiquity and upon what Legal Foundation it stands is not easily to be affirm'd As I have made appear in a larger Treatise Of the Original of the Iurisdiction of the Chancery in matters of Equity To which I refer my Reader Our Ancient Authors as the Mirror of Iustices Glanvil Bracton Briton and Fleta although they treat of the Chancery as it proceeds according to the Rules of the Common-Law viz. in Repealing of Patents and in Cases Priviledg'd yet none of them do once mention the Court of Equity there and yet their undertakings were to treat of all the several Courts then in being which proves the Court of Equity in Chancery was not then in being It hath been adjudg'd 26. and 27. Eliz. in the King's-Bench in Perrot's and in Marmaduke Langdales Case Cok. 12. Rep. Fol. 52. That a Court of Equity cannot be Erected by Patent but only by Act of Parliament or by Prescription And the Chancery hath no Prescription for a Court of Equity as appears by those Ancient Authors If the Chancery it self have no Right of Prescription then there is no Foundation for any Prescription in Cases of Appeals nor is there any Act of Parliament that gives it The First Decree as I take it in Chancery is but of the time of King Richard the Second and that was Revers'd for that it was in a matter properly determinable at the Common-Law The best proofs of the Power and Jurisdiction of a Court are the Records and Precedents of a Court And if it be by Prescription it must appear by ancient and frequent Precedents Plowd Comment in the case of the Mines Fol. 301. b. And if any Court Usurp a Jurisdiction in a case where it appears in their very Proceedings themselves that it hath no lawful Jurisdiction what they do in such case is Corà m non Iudice and is utterly void Now concerning the Exercise of a Jurisdiction by way of Appeal from a Court of Equity for Error in their Decrees I shall make mention of the very Records and Acts of the House of Lords I have search'd into the Journal of the Lords and I find a Record or Entry there of the Parliament held 18 Iac. 1. Anno 1621. And we need search no higher for that gives a full account of all the times then pass'd as to the point in hand viz. Of the Supreme Judicature and Jurisdiction 18 Iac. 1. Fol. 175. Of the Lord's Journal I find by an Entry of the 30 th of November in that year That a Comittee had been named by the Lords to take into consideration the Customs and Privileges of the Lord's House and the Privileges of the Peers or Lords of Parliament And that a Sub-Committee had been named who had express power to reward such person as by their Warrant should search among the Records for Privileges and Customs and that Mr. Selden had been appointed for that purpose and had taken much pains in it I observe by the way That the House of Lords were not then of the same Judgment with the Noble Author I have before mentioned who asserts the Right of Judicature of the House of Peers to be by the very first Constitution of the Government Universal and in all Causes whatsoever unless restrain'd by some Act of Parliament Had that been true there had been no need to search for Precedents to warrant their Proceedings in any case It had been sufficient to justify the Proceedings if no Act of Parliament could be found to restrain them in any such case the labour of which would have been properly on his part that would presume to dispute their Jurisdiction No the Lords took the right course to examine it if there were no Precedents the Lords concluded that then they had no Right to a Jurisdiction and no Persons nor Court can assume to themselves at their own will any Authority or Jurisdiction Quis me constituit Iudicem said our Blessed Saviour there must be a constitution of it And it was properly enough ask'd by the Scribes and Pharisees of our Saviour Who gave thee this Authority I would observe too that the Sub-Committee of the Lords employ'd for that purpose of searching for Precedents a person who was in his Element the Famous Selden no Record could escape his discovery Further in the 208 th Folio of that Journal of the 18 th year of King Iames on the 14 th of December the then Archbishop of Canterbury for he it seems took special care of it mentions in his Report to the Lords the Proceedings of that Committee viz. A
A TREATISE OF THE TRUE and ANCIENT JURISDICTION OF THE House of Peers By Sir ROBERT ATKYNS Knight of the BATH State super Semitas antiquas LONDON Printed in the Year MDCXCIX To the Honourable The Knights Citizens and Burgesses of the House of Commons in Parliament Assembled The Humble Petition of Sir Robert Atkyns Knight of the Bath SHEWETH THAT your Petitioner in the several Publick Employments he hath undergone hath had more than ordinary occasion of observing the encreasing Iurisdiction of the Courts of Equity in this Kingdom and how the Common-Law the Birthright of every Englishman hath been and still is every day more and more invaded by it He hath taken the pains to collect many of those continual complaints from time to time made by the Commons of England in Parliament against the Exercise of that New Iurisdiction in the very beginning of it And your Petitioner hath great reason also to take notice of the Exercise of the Iurisdiction of Appeals from the Proceedings of those Courts And humbly presents this Honourable House with what he hath collected in order to your Service therein Your Petitioner craves leave to make use of that freedom which belongs to every Englishman to tender you a Complaint against so publick â—nd spreading a Grievance He doth not Appeal nor complain of any thing that meerly concerns himself He only subjoins a Case wherein himself was a Party meerly as an Instance of the large Exercise of a power against the known and fundamental Rules of the Common-Law as he conceives That Case of your Petitioner happened very lately in the Chancery But it is generally known in the Courts of Westminster-Hall That as your Petitioner had occasion he hath for many years frequently and publickly in his Station enveigh'd against the Encroachments of Courts of Equity and that late course of Appeals But on the behalf of the whole Kingdom he humbly offers his Service and lays before You what he hath observed and collected upon this Subject after near Threescore years Experience And submits All to your Wisdom to proceed in providing Iust Remedies And your Petitioner shall ever Pray c. Robert Atkyns OF THE Supreme Jurisdiction IN THE KINGDOM OF ENGLAND THE House of Lords have a very Ancient and Transcendent Jurisdiction but it is not Absolute nor Arbitrary in the Exercise of it nor Universal and in all Cases it is a Power Limited by Law and must be Exercis'd according to the known Rules of Law And though the Peers are very Great and Honourable yet they are but Men and not Infallible and therefore a Writ of Error lies upon their Judgments And the Law allows that liberty to the meanest Subject to demur to the Jurisdiction of any Court whatsoever even that of the House of Lords Let us Enquire into their Jurisdiction when it began and in what Cases they have a Right to it An Eminent Author suppos'd to be the Late Lord Hollis upon occasion of the great Cause between Skinner and the East-India-Company so much disputed between the Two Houses of Parliament hath in Print Asserted That the House of Peers hath their Right of Judicature from the beginning of the Nation Page 134. He affirms it is a Power Lodged in them by the very Frame and Constitution of the Government As to the Extent of their Jurisdiction Page 213. he affirms That they have an undoubted Right to an Universal and Unlimited Power of taking Conusance of all manner of Causes of what nature soever and of Judging and Determining of them if no particular Law do otherwise dispose of them Nec Metas rerum nec tempora ponit The first of these seems to Entrench very far upon the Regal Power He not only makes their Power equal in time to it owning no Derivation from it but in effect Claims a Co-ordination with it But the Claim of such an Independent and Original Power sounds like that which is taken to be a peculiar of the Supreme Power as to the Administration of it viz. In all Causes and over all Persons c. Nay he holds that the Peerage sets bounds both to Power and Liberty Page 71. as this Author maintains it It may easily be understood by what follows what is meant there by Power viz. The Regal Administration of it Whereas the Common-Law of England and all the Authors and Writers of it do with one Consent acknowledge Jurisdictions within this Realm are deriv'd from the Crown And that no Court hath an Absolute and Unlimited Power save the Supreme Court of the Nation consisting of the King Lords and Commons Assembled in Parliament and in them indeed is the True Supreme Power under God But that according to the different nature of Causes some are distributed into one Court and some into another But not any one Court hath Jurisdiction in all Causes save that of the Parliament And that all Courts must proceed by some certain known Rules that is the Courts of the Common-Law Secundum legem consuetudinem Angliae And Courts of Equity according to the ancient and constant Precedents and Usage But this Court of Peers for I confine my self still to what is asserted by this Noble Author doth wholly exclude the King and ingross all to themselves No by no means He allows the King a single Voice among them Page 145. as a Chief Justice in another Court whose Voice or Opinion hath no more force than that of a Puisny Judge No not so much as a Casting-Voice where they are equally divided I shall offer to Consideration upon what grounds and proofs this Noble Author doth Entitle the House of Peers to this Unlimited Jurisdiction He hath been led into these Opinions I fear by some late over-zealous and injudicious Writers who out of a too fond and forward Zeal to depress the House of Commons in the late Exorbitant Power which they took upon them in the late Times in order I say to the decrying of their Usurped Power those Writers thought they could never sufficiently Exalt the Power of the Lords to over-ballance that of the Commons And it may perhaps be useful by the way to take notice of the strange Revolution that in the late Times happened to the Government of this Nation 1. Our Kings began first to strain Prerogative too high upon the Subject 2. Both the Houses of Parliament thereupon join'd together in Usurping upon the Regal Power 3. After some short time the late House of Commons by the help of their Army laid aside the House of Lords Sic cum sole perit Syderibus decor 4. After some time again a lesser part of the House of Commons exclude the greater part 5. And these their own Army over-top as being but the Fragment of that House 1. Sic Medus ademit 2. Assyrio Medóque tulit moderamina Perses 3. Persen subjecit Macedo Cessurus Ipse 4. Romano These Modern Writers who are such earnest Advocates for the House of Peers ascribe to the Lords
his Title was who indeed was all one with a Pro-rex or Viceroy and whose Office wholly ceased in the time of King Edward the First may now be used by the Chief-Justice of the Kings-Bench who often hath the same Title as Capitalis Iustitiarius Angliae given him Nobilis says Mr. Selden in the Saxon times denoted every Gentleman Now because Nobilis in our times is mostly restrain'd to the Peers of the Realm whom we call the Nobility our new Writers and Arguers ascribe all that power to the Lords in Parliament which they read in the Norman Translators such as Matthew Paris c. was Exercis'd in the Saxon times by those that in those times were stiled Nobiles when in truth that Power and Authority was in the times of the Saxons likewise in the hands of the middle sort of persons in the Kingdom as well as in those of the highest sort under the Saxon Kings and all then called Nobiles Thus Thanes who in the Saxon times signified Lords of Mannors and was not a distinction of Honour is generally translated Barones by our Norman Translators and that was not so altogether improperly done as I shall show by and by for the word Baro from the time of the coming in of the Normans and a long time after signified no more than a Tenant in Capite and was then no Title of Honour The words Nobiles Proceres Magnates Optimates and such like were not in the Saxon times restrain'd to the men of the highest Rank such as our Earls and Barons are now but extended to all persons of the better sort and above the vulgar Not only to Patricians and those of the Senatorian Order to speak in the Roman dialect but also to those of Equestris Ordinis excluding none but the Ignota Capita or sine Nomine turba such as the Romans stiled Plebeians Sir Henry Spelman in his Glossary Page 84. Avo Henrici primi says he Procerum Appellatione computari videntur Omnes maneriorum Domini So that Titles in the Saxon times and in the beginning of the Norman times did all resolve themselves into possessions of Lands and were feodal For the word Magnates it most clearly includes also those of the middle sort or as I may term it in the now dialect of the lower Nobility Mr. Petit of the Temple in his Book of the Ancient Right of the Commons asserted cites a Record in the Tower Tertio of E. 2. membrana 16 ta dorso Rotulo clauso where there are these words enter'd viz. Inhibitio nè qui Magnates viz. Comes Baro Miles seu aliqua alia Notabilis persona transeat ad partes transmarinas So that by this videlicet Milites are comprehended under the word Magnates and Nobilis is no more than Notabilis Fleta lib. 2. cap. 42. fol. 93.37 H. 3. In majori Aula Westm. in praesentia Regis Archiepiscoporum Episcoporum Abbatum Priorum Comitum Baronum Militum Et Aliorum Magnatum regni Angliae c. which allows Milites to be Magnates in the time of King Henry the Third and some inferior to the Milites under the word Aliorum Lambert in his Book De priscis Anglor Legibus Fol. 176. recites verbatim a Charter of King Henry the First de Confirmationibus legum Edwardi Regis Testibus Archiepiscopis Episcopis Baronibus Comitibus Vice-comitibus Et Optimatibus totius regni Angliae So that the word Optimates stoop'd as low as to Knights and Sheriffs for there were no Vicounts till long after the time of King Hen. the First The same sense of the words Magnates Proceres appears in a Record of the Exchequer in the King's Remembrancer's Office inter Communia brevia de termino Trinitatis 34. E. 1. Nay the words Baro Baronagium which one would think should be Propria quarto modo to our Peers and should be peculiar and characteristical Notes of distinction between Peers and all others their Inferiors These very words had a much larger extent and were comprehensive of all Tenants in Capite Nay communicable to all Lords of Mannors if not to all Freeholders And this for a long time after the coming in of the Normans who introduced them first amongst us And the very Title of Barones gives all our Peers whether dignified with those higher Titles of Dukes Marquesses Earls or Vicounts the sole Right of Sitting in the House of Peers and they Sit there Eo nomine and not meerly by force of those higher Titles Hence it is I presume that those higher dignities are never conferr'd alone but accompanied at least with that most peculiar Title of the Peers I mean the Barons Now nomine Baronagii Angliae Omnes quodammodo regni Ordines continebantur says Learned Cambden in his Britannia Page 137. And Sir Hen. Spelman in his Glossary Page 66 67 68 69 70. Upon the words Barones Comitatûs says Hoc nomine contineri videtur antiquis paginis Omnis Baronum feodalium species Proceres nempè Maneriorum Domini nec non liberi quÃque Tenentes Anglicè Freeholders qui Iudiciis praefuere Aulae Regiae the then highest Court of Judicature Selden in his Notes upon Eadmerus Fol. 168. The same Learned Author in his Titles of Honour Fol. 609.691 tells us that in the beginning of the Reign of William the First Honorary or Parliamentary Barons were only Barons by Tenure and created by the King 's Writ or Charter of good Possessions whereby William the First reserved to himself a Tenure in Chief by Knight's Service or by Grand Serjeanty And that Knights Service was to serve the King upon occasion with such a number of Men at Arms as was reserv'd by the Charter or Grant and this is called a Tenure per Baronagium and the number of all Knights Fees out of which Baronies were made up amounted as Ingulphus who lived in the Conqueror's time says to Sixty thousand Knights or Men of War Now these Tenants in Capite were the most of those that made up the great Assembly called a Parliament and they were the Judges of the Supreme Judicature for as Mr. Selden says in those times Tenere de Rege in capite and to be a Baron or to have a Right to sit with the rest of the Barons in Councils or Courts of Judgment according to the Laws of those times are Synonomies and signify the same thing All these Tenants in Capite had the whole Kingdom been put into a Scale and weighed as Bocaline the Italian weighed all the Princes and States in Europe These Tenants in Capite I say made up the greatest part of the weight I may say the whole weight if Land only were to be weighed For under these Tenants in Capite by degrees in process of time all the Freeholders derive their Estates who are therefore to be accounted as cast into the Scale with the Tenants in Capite who originally had all the Lands For Lease-holders Farmers and Copy-holders are but in the nature of Servants
Rescripto ad Comitia Parliamentaria evocaverit Here we have plainly the Original of the House of Peers and of particular and special Rescripts or Writs of Summons to the Optimacy distinctly and by themselves Cambden quotes his Author for this but names him not Ex satis antiquo Scriptore loquor says he It was referr'd to the King to single out and select some to whom he thought fit to direct his special Writs or Summons and these and no other were to come to Parliament If this may be credited then we have the Epoche and the Date of our present Constitution and the Original of the Division of that very ancient great and numerous Assembly and it made a mighty Metamorphosis and Change The Freeholders parted with that great Power and Interest which they had both in Legislature and Judicature from the very Foundation of the Government and the Nation it self Even from the time of the Ab-origines if there were ever any such and they have been upon the losing-hand ever since as appears by what I have already observ'd in closing their Rights of Elections And thus they brake in two and became two Houses both at one time and were Twins in their Birth Here was no Primogeniture yet the one went away with a double portion upon the parting And this taking in the History is a confutation of that Opinion That the House of Commons as being by Election was in time long after the Date of the House of Peers surely they started both together Great Selden agrees in the Substance with Mr. Cambden but differs from him only in the time and some other circumstances when this Revolution happen'd And for Mr. Cambden's satis antiquus Author Mr. Selden professes he diligently sought for this Author but could never meet with him nor does Mr. Selden give any credit to that Author He supposes the distinction of Majores and Minores Barones which doubtless did arise upon this Revolution pag. 708. began not long before the great Charter of King Iohn Father to King Henry the Third and that Charter was made in the Seventeenth and last year of King Iohn This Division of Barones which all Writers agree in and which appears by King Iohn's Great Charter evidently shows that the two Houses began at the same time for Majores cannot be without the Minores But Mr. Selden supposes this was done by Act of Parliament though that Act be not now Extant Nor is there any express Memorial of it And he supposes it was not submitted to the King to chuse out whom he thought fit But that the Act of Parliament did mention them by name at first to whom particular Writs were to be directed Some part of the very words of that Charter of King Iohn's we have in Mr. Selden's Titles of Honour pag. 709. and in Sir Hen. Spelman in his Glossary pag. 83. Faciemus says that great Charter Summoneri Archiepiscopos Episcopos Abbates Comites Majores Barones Regni Sigillatim per literas nostras Et praetereà faciemus submoneri in generali per Vice-comites Omnes alios qui in capite tenent de Nobis which is a clear proof that till about this time there was no distinction And that which did Constitute a Parliamentary Baron was his Tenure de Rege in Capite so that all who held in Capite had an inherent Right to sit there And that before this time all came by a general Summons directed to the Sheriff What hath been hitherto said serves to prove That before this time of King Iohn or King Henry the 3 d his Son there was only one great Assembly of the Nation that is of the most Eminent and all the considerable and interested persons of the Nation who came not by Election save those that were chosen from the few and ancient Burroughs Nor was there then any Representative as now And that those great Assemblies were in those times the true Baronage of England and that the word Baronage did not belong only to such as the King by special Writ is pleas'd to call or summon or by Patent to confer the Title upon but as our most judicious Writers tell us the word Baronagium did extend to all Degrees and Orders for they came to all great Assemblies by Tenure till the aforesaid time of Division And there are the footsteps of this Ancient Right still amongst us in that the Freeholders whom we call Free-suitors are still the Judges of that Court which Anciently was the great and buisy Court the County Court. And those Elections that are still remaining of Trustees or Representatives in Parliament and of divers Legal Officers which must be by Freeholders only and the persons to be chosen ought to be out of the Freeholders themselves And so much of the Ancient Constitution of a Baron still remains as that in his Creation he must be entitled of some place that it may favour of the Realty and make the Honour and Title Inheritable And the Baron still continues his Freedom from Arrests as having by presumption of Law an Estate in Land which will make him liable to Justice And therefore a Distringas shall issue out against him instead of a Capias And the Law will allow of no Averment against a Peer that he hath no Lands whereby to distrain or to levy Issues upon No doubt but the Lords had from the time of this great Division ever since a very large though not an universal Jurisdiction nor have they had it from the very first Constitution of the Government as is by some pretended When this great Assembly this great and numerous Body was divided into parts no doubt but the several parts did as the Four great Captains after the Death of Alexander the Great did assume and take to themselves by Agreement several shares of the power that was then dissolv'd The Lords took a large share and the Commons for so now they began to be distinguish'd took the rest and we may reasonably suppose it was confirm'd by some Law that then pass'd and hath been since lost And the like presumption we know is made by our Courts of Law in many like cases And it is well known that the Parliament Rolls of that time are all lost And the best Rule whereby to judge what was allotted to each will be by ancient constant quiet and uninterrupted Usage and Practice Usus consuetudo est Lex Parliamenti The House of Lords did exercise a Jurisdiction in cases of Appeals for Criminal Causes till by the Act of 1 mo of Henry the 4 th c. 14. they were restrain'd That Act doth Ordain That from thenceforth no Appeals shall be pursued in Parliament the Exposition of which Statute must be made by observing the mischiefs that occasion'd the making of that Law and the constant practice after it The preamble recites That many Mischiefs did often arise by Appeals And the History of the times of King Richard the 2 d. the next preceding
King tells us what those Mischiefs were When in that disorderly troublesome Reign the Lords were so divided into Feuds and Factions that the Lords who were to be the Judges became Parties and were Appellants one against another This was the mischief Then for the practice after the making of that Act that Law was never intended according to the generality of the words to exclude all Appeals whatsoever but such only as were at the suit of private persons For the constant practice hath been ever since as well as before to admit of Appeals in Parliament when they come to the Lords by Impeachment from the Commons The Lords had and still retain the Jurisdiction over their own Members for trial of Peers in cases Capital The Lords had and still have the Jurisdiction in Writs of Error to examine Judgments given in the King's-Bench but this was under certain Rules and with some restraint for constant and quiet usage and practice do warrant all these Let us enquire into the placita Parliamentaria I mean those that are publish'd by Mr. Ryley of the times of King Edward the First King Edward the Second c. and observe what light they give us The true Title of those Pleas are Placita coram ipso domino Rege ejus Concilio ad Parliamenta sua In which Titles Regis Concilium Parliamentum seem to be distinguish'd and to signify two several things as in truth they did When and how came these Pleas to be discontinued ever since the time of Edward the 4 th When did the Law pass that restrain'd them We have not one such Plea to any effect between the time of King Edward the Fourth and the time of King Iames the First nor from thence to this day near 300 years What is come in the place of them The Placita Parliamentaria were in a strict and regular form of Pleadings The Petition of Declaration the Plea the Replication the Rejoinder and the Continuances entred upon Record in Latin and the process was by Latin Writs and all the Proceedings entred upon Record in Latin as Proceedings at the Common-Law ought to be How came this to be altered All of later times at least before the Lords are in English and the process are English Orders only Had these Placita been before the Lords how happens it that there are so few if any Reports among them of Pleadings upon Writs of Error which the Lords claim as out of all dispute to be within their Jurisdiction Hardly any of these are to be found amongst them and these had been worthy Reporting being in matters difficult weighty and full of Learning What was this Regis Concilium so constantly mention'd in these Pleas as those before whom they were held ☞ Amongst these Records and Pleas we find All the Peers themselves in a Body several times petitioning to the King and this Council and receiving Orders and Rules from that Council It is absurd to think that all the Lords in a body would petition to themselves as at the Parliament held 14 th of Edward the Ryley's Placita Parliamentaria pag. 425. Ex parte Praelatorum Comitum Baronum aliorum porrecta est petitio in hoc Parliamento in haec verba A nostre Senior le Roy a Son Counceil monstrent les Erce-evesque Praelats Counts Barons les auters grantz Seigniors dela terre Concerning payment of Escuage And the Answer to this Petition is per Concilium Regis the like ib. pag. 448. We have another Example of it in the Appendix to that Book viz. of the time of 18 Edward the Second pag. 619. wherein the Lords in a body pray liberty to approve or improve their Mannors without the King's License And the Answer to it is That it could not be done without a new Law to which the Commons would not consent It is evident in those Records and Pleas that others are mention'd to be of that Council then the Peers as pag. 266 and 331. There is an Inhibition by the Treasurer and the Concilium Regis not to deliver a Prisoner and page 386. 14 th Edward 2. the King appointed who should receive Petitions at the Parliament and who should Answer them And those that were appointed to Answer them are called Triers of Petitions These seem to be the persons that made the great Council or the King's Council as they are called in those Records These in Parliaments of late have been wholly discontinued We find this Council while they were in being sate in Places where we cannot reasonably suppose that the House of Lords ever sate as pag. 87. in Mr. Ryley's Placita Parliamentaria Corà m Rege Concilio apud Lond. in domo Ottonis de Grandissono extra palatium ipsius Domini Regis apud Westmonasterium And pag. 98. at Bergavenny and pag. 108. at Stilbeneth extra London which I suppose is meant of Stepney And the Judges are mentioned as Members of this Council pag. 140. not meer Assistants Now we come to Writs of Error wherein it is generally admitted that the Lords have a Jurisdiction and from thence as I suppose it is inferr'd by a parity of Reason that they likewise have a Jurisdiction in Appeals from Courts of Equity An Appeal from a Decree in Equity being something of the same nature with a Writ of Error at the Common-Law It is true our Law-Books are full of this Title and speak of Error sued in Parliament But under favour it is not of an universal Jurisdiction in all Cases of Erroneous Judgments but with divers Restrictions and under certain Rules in our Law-Books It hath been often Resolv'd that the Lords cannot proceed upon any Writ of Error till first the King hath Sign'd a Petition for the Allowance of a Writ of Error to be sued out As in the Year-book of 22 Edward the 3 d. Fol. 3. It is there held that a Writ of Error in Parliament lies not till the King be petition'd for it and till the King have Sign'd the Petition Which Signing is indeed the Commission which gives the Authority And in the case of Edward Hadelow where Judgment was given for the King Upon the King's Signing a Petition for a Writ of Error and the Writ sued out the Roll in which the Judgment was entred was brought by Sir William Thorp Chief-Justice of the King's-Bench into the Parliament Upon which the King assign'd certain Earls and Barons and with them the Iustices to hear and determine the business And before it was determin'd the Parliament was ended yet the Commissioners sate still but the King was gone And it was urged before the Delegates for so they are called That the Judgment could not be Revers'd except in Parliament and there it is said that the King hath no Peer in his Land and that they cannot judge the King How came that in to Debate Why it was in the Case of an Outlawry which is always for the King's benefit and
Collection made of Customs and Orders of the Lord's House and of their Privileges made out of Records And he presented that Collection to the House and desir'd it might be preserv'd as a Memorial whereunto men may resort as occasion should require and make use of it It was thereupon ordered by the House to be delivered to the Clerk to be kept for that purpose So that this was intended by the whole House of Lords to be a Standard whereby to measure and judge of their Jurisdiction and Privileges for the future I find the Title of that Committee Fol. 91. to be A Committee for searching for Precedents for Judicature Accusations and Iudgments anciently used in this High-Court of Parliament This shows it must be an ancient Usage or nothing Therefore late and modern Usage and Precedents are in the Judgment of the Lords of no great Weight to Entitle them to a Jurisdiction Moreover Fol. 105. of that Journal there is an Order made 27. Mar. 1621. for Collection of Money among the Peers to pay the Charge for searching for Records in the Tower and elsewhere and to have Copies of them certifi'd under the Officer's hands Every Earl and Viscount was to pay Forty Shillings and every Bishop and Baron Twenty Shillings I have perus'd that Book Entitled A Collection of Privileges or special Rights belonging to the Baronage of England What is meant by that Title appears by the Table to the Book which consists of these Heads following viz. 1 st Iudgments Of Offences Capital Fol. 11. b. 1 st Iudgments Of Offences not Capital Fol. 25. 1 st Iudgments Upon Writs of Error in Parliament Fol. 88. Another Head is The Lords appointing Judges out of themselves for Examination of Judgments in other Courts Fol. 95. I thought this last Head or Title might afford something to our purpose relating to Appeals Under this Head there is nothing mention'd but concerning Erroneous Judgments given in the Court of King's-Bench at Westminster or upon the Statute of 27 Elizabeth Cap. 8. Of Judgments given in the Exchequer-Chamber by the Judges of the Common-pleas and the Barons of the Exchequer upon Error to Examine Judgments given in the King's-Bench from whence Error lies also before the Lords by the express words of that Statute which no doubt is therefore a very Legal Power and Jurisdiction in the Lords being Exercis'd in the method directed by Law as before is observ'd The Book of this Collection expresly takes notice That no Writ of Error lies in Parliament upon a Judgment given in the Court of Common-Pleas till that Judgment have been Revers'd or Affirm'd in the King's-Bench As it was answer'd in Parliament in the Case of the Bishop of Norwich Rot. Parl. 50. E. 3. Articl 48. The like Resolution did the Lords give after Hearing all the Judges and long Consultation and a referring the Consideration of that matter to a numerous Committee of the Lords in a Case of the late Earl of Macclesfeld wherein that Earl was Plaintiff in the Exchequer in an Action of Slander and Judgment there in that Court given against him whereupon the said Earl since this last Revolution sued Error before the Lords passing by the method directed by the Stat. of 31. E. 3. Cap. 12. for Suing Error upon Judgments given in the Exchequer And the Lords were upon the very point of Reversing that Judgment in the Exchequer but being by one of the said Judges then also sitting on the Upper Wooll-sack put in mind of that Stat. of E. 3. they did forbear to proceed to do any more upon it referring it to the Order limited by that Statute This proves That the Lords are tied to a method too in cases where they have a Rightful Jurisdiction They must not take it ad primam Instantiam nor per Saltum In that Collection I have mentioned under that Lemma of Examination of Iudgments in other Courts which is comprehensive enough I find notice taken of Hadelow's Case 22. E. 3. Fol. 3. and Flourdew's Case 1 H. 7. Fol. 20. which I cited before at large And these concern only Cases of Erroneous Judgments in the King's-Bench Under the Title of Offences not Capital there is mention of no case but upon Accusations for Criminal Causes It begins with Latimer's Accusation of Iohn at Lee for Offences against the State It mentions the Case of Richard Lyons for procuring of Patents for private advantage and of the new Impositions without Parliament It instances in the Case of William Lord Latimer accus'd by the Commons And the Case of Alice Peirse And the Case in 7 Richard the 2 d num 11. of Michael de-la-Pool Chancellor of England accus'd by Iohn Cavendish of London Fishmonger for Bribery And the Earl of Northumberland's Case 5 H. 4. num 26. and Thorpe's Case but they are all in Criminal Causes While this Committee was in being I meet with an Appeal made to the Lords from a Decree made in Chancery And as I take it 't is a decree made by the Lord Bacon though he is not named by his name it is Fol. 181. in the Journal of the Parliament 18. Iac. 1621. The Third of December in that Parliament Sir Iohn Bourchier by Petition Appeals to the Lords from a Decree in Chancery wherein he himself was Plaintiff against Iohn Mompessom and others and there were cross Suits and they were about Accounts between them And Sir Iohn Bourchier had a Sum of Money decreed to him but not for so much as he thought was due and therefore he Appealed and complain'd in his Petition to the Lords of an hasty Hearing of his Cause in Chancery and that his Witnesses were not heard and uses the very formal word of Appeal in his Petition Fol. 188.6 December It was referr'd to the Lords Committees for Privileges to consider whether it were a formal Appeal or not I must confess it doth not clearly appear to me what the true meaning or ground of that Order is for as I now said the Petition does expresly use the word Appeal The 10 th of December Fol. 196. The Lord Archbishop of Canterbury Reported That divers Lords Sub-Committees appointed to search for Precedents ☞ cannot find that the word Appeal is usual in any Petition for any matter brought before them This deserves to be noted So that it seems the Lords Committees understood the meaning of their Order to be to search for Precedents if there had been any where the Lords had used in former times to admit of and to receive Appeals before them against Decrees made in Chancery or in any Court of Equity The Archbishop further Reports That they could not find so much as the word Appeal used in any Petition and that it must have been by way of Petition if any way This shows the Novelty of it for he likewise reports That all matters complain'd of before the Lords must be by 〈◊〉 Petition and in no other Form And that the Ancient accustom'd Form of