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
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
the 3 d. was questioned Devant les Prelats Seigneurs before the Lords Spiritual and Temporal for Maintenance and medling with Businesses contrary to an Ordinance made 50. E. 3. n. 36. for which they adjudge her to be Banished and to forfeit her whole Estate Sir Ralph de Ferrers 4. R. 2. was brought before the Lords by the Duke of Lancaster who had Arrested him on the Marches of Scotland upon suspicion of High Treason for holding Correspondence with and Adhering to the French the Kings Enemies by reason of a Packet of Letters taken up by a Beggar in a Field near London some from him to the King of France and to some French Lords and some from them to him which the Beggar carried to the Lord Major and the Lord Major to the Kings Councel These Letters were produced in Parlament against him and by him denied Being put to his Trial he desired Counsel which was denied then the Business coming to hearing I l semblast as Srs. du Parlement que le dit Mr. Rauf estoit innocent the Lords declared him Innocent and committed the Beggar to Prison The 7. R. 2. n. 17. Peter de Cressingham and John de Spikesworth were Tried for Surrendring the Castle of Drinkham in Flanders Spikesworth was acquitted and Cressingham committed to Prison The same Parlament Sir William Elmham Sir Thomas Tryuet Sir Henry de Ferriers Sir William de Farnedon and Robert Fitz-Ralph for receiving Moneys of the French who were the Kings Enemies and delivering up Forts into their hands were adjudged to Prison and to a Fine and Ransome at the Kings will Sir William de Farndon to be at the Kings mercy Body and Goods so as the King might take his Life if he pleased 15. R. 2. n. 16. The Serjeant at Arms John de Ellingham is sent by the Lords to fetch up some Persons that had committed a Ryot in the Church of Whitewyk in Lecestershire He brought up the two chief Actors in it Henry Tebb de Threnguston and Robert Grenlowe whom the Lords committed to the Fleet there to remain during the Kings pleasure and where they did remain till they paid a Fine to the King and made Agreement with the Prior of Holland in Lancashire whose the Church was and whom they had in the Church abused and given Bond for their good Behaivour 15. R. 2. n. 17. The Abbot of Saint Osithe sets forth in his Petition how the Parlament before upon his Complaint their Lordships had sent John Rokell to the Tower for Embracery and Maintenance against him that the Duke of Guien and Lancaster had after that made an Award between them and that Rokell did now refuse to stand to that Award The Lords send for Rokell the Duke testifies the Award the Lords charge the Chancellor to see that Rokell perform it That same Parlament Sir William Brian for purchasing a Bull from the Pope directed to the Arch-Bishops of Canterbury and York and the Bishop of London to make Inquiry after some Persons who had broken into his House at London and had taken out several Writings and other things and to Excommunicate them This was Adjudged by the Lords to be Prejudicial to the King and his Crown in Derogation to the Law of the Land a great Contempt to the King and they committed him to the Tower 1. H. 4. The Lords condemn John Hall Servant to the Duke of Norfolk to be hanged drawn and quartered and his Head to be sent and set up at Calez for Murdering there the Duke of Glocester 2. H. 4. n. 2. They send Sir Philip Courtney to the Tower and bind him to the good Behaviour for making a forcible entry upon Lands of Sir Thomas Pomery and for Imprisoning by force the Abbot of Newenham in Devonshire and two of his Monks 11. H. 4. n. 36 37. Several Rioters are complained of and order given upon it for Writs to the Sheriffs to apprehend their Persons and seise upon their Estates and they to answer for their Misdemeanors before the Justices of the Kings Bench to whom Authority is given to end those Businesses All these were Commoners yet they with many others who upon perusing the Journals will be easily found were Adjudged by the House of Peers some to Death some to Prison and some to other Punishments as Fine and Good-behaivour and some ordered to be proceeded against in the Courts below and power given to those Courts to do it which is all one as if they Punished them themselves And all this notwithstanding that Agreement made in the 4 th year of E. the 3 d. which shews that their Intention then was only that they should not be put upon it by the King but not to put it out of their own Power And one thing I must observe by the way that though the Judgements be commonly given in the Kings Name yet it is the Act of the House where the King is always virtually present when they act Judicially not so when they act in their Legislative capacity Therefore sometimes when the King had taken upon him to pronounce a Judgement of himself or rather something like a Judgement the Lords have protested against it as 28. H. 6. n. 50.52 The Duke of Suffolk was Impeached for many Treasonable Matters And not putting himself upon his Peerage but referring himself to the King and to his Order the King then by the Mouth of the Chancellor declared unto him that he should be Banished for Five years and this as the words of the Record are by force of his Submission and by the Kings own Advice and not Reporting him to the Advice of his Lords nor by way of Judgement for the King he said was not in place of Iudgement And though this was but done in such a manner the King even excusing it that it was not by way of Judgement yet because it looked like one the Viscount Beaumont on the behalf of the Lords and by their advice assent and desire protested against it prayed it might be entered in the Parlament Roll that they did so and that it might not turn to the Prejudice and Derogation of them and their Heirs in the Liberty and Freedom of their Peerage So jealous were they then of their Priviledge of Judicature that they would not suffer any thing to Pass not from the King himself that did but looke like a Violation of it But their Predecessors went further than this in Henry the Fourths time for here they suffered the King to have his Desire only with a Salvo to themselves but 5. H. 4. n. 12. they absolutely opposed the King in what he would have done and would do it themselves in another way For the Earle of Northumberland coming into Parlament before the King and Lords and by his Petition acknowledging his Offence that he had done contrary to his Allegience in raising Men and giving of Liveries and therefore begging Pardon and the rather for that upon the Kings Letters he had
yielded himself and come to the King at York the King having thereupon delivered this Petition to the Justices to have them consider of it the Lords protested against it said the ordering of it belonged to them And that therefore as Peers of Parlament to whom such Iudgement belonged they would take the Business into Consideration themselves and then examining the Statutes that of 25. E. 3. of Treason and of the second of the then King H. 4. against Liveries upon well weighing them they adjudged the Earle of Northumberlands Fact to be no Treason but only a Trespass fineable to the King Whereupon the King pardoned him and received him into Favour And the Lords were not more careful to assert and maintain this Jurisdiction of theirs than all English-Men were to acknowledge it the Judges both in and out of Parlament have ever had a Deference to it In the Year-Book of 40 E. 3. Termino Michaelis pag. 39. An Action being brought upon the Writ de Rationabili parte bonorum and some difference being of Opinions if the Action was good that learned Judge Moubray delivered his Qe les Seignours en Parlement ne graunteront my que cest accion est maintenable per ascun comune custome ou ley de ce Realme The Lords in Parlament will not yield this Action to be maintainable he meant they had Judged it otherwise And to that Judgement of the Lords Sir Edward Cook hath Reference in his Comment upon Littleton Sect. 267. where he saith that it hath been resolved in Parlament that a Custome must be alledged in some County c. to enable the Wife and Children to the Writ de Rationabili parte bonorum It would be but Labour lost to heap up more Proofs and more Presidents for the asserting and maintaining of the Judicature of the House of Peers Yet I shall add one more which is in truth Instar omnium for it is a Law having the Concurrence of King Lords and Commons not a Constituting-Law but a Declaratory-Law which is the strongest asserting and confirmation of any Law or Custome already established that can be It is that of the 1. H. 4 n. 79. the Record saith That the Commons come and shew to the King That as Iudgements in Parlament belong only to the King and Lords and not to the Commons except in case it please the King out of his special Grace to acquaint them with those Iudgements in favour to them so that no Entry ought to be made Prejudicial to them to make them Parties now or hereafter to any Judgements given or hereafter to be given in Parlament To which the Arch-Bishop of Canterbury answered by the Kings Command that the Commons are but even Petitioners and Suitors and that the King and Lords have ever had and ever shall have Right to the Judicature of Parlament as the Commons do themselves set forth saving that the King will have their Advice and Assent in making of Laws and granting of Subsidies and doing such things for the Publick Good This Order to be observed and kept in all times to come Here is a cleare Renunciation of all Pretence to Judicature by the Commons themselves and a full Declaration and Acknowledgement of it to be only in the King and Lords that it hath been ever so for the time past and must be so for ever in time to come And this declared by King Lords and Commons as a thing Notorious known to all Men and not disputed or doubted of by any What can be said against this Yes that Paper which goes about from Hand to Hand that I mentioned before of Reasons prepared for a Conference saith that this Record was made upon occasion of Judgements given by the Lords to Depose and Imprison their Lawful King to which the Commons were unwilling to be made Parties Admit it were so yet no Man would think that the House of Commons would to avoid that present Inconvenience divest themselves to all intents and purposes of so great a Priviledge if in other things and before that time they had ever had right to such a Priviledge nay more that they would say against themselves a thing in it self untrue if it were untrue as in truth it is not but is most true viz. That Judgements in Parlament belong only to the King and Lords and not to the Commons This is not to be believed being against the general Practice of all Judges of Courts that will Ampliare Jurisdictionem rather than deliver it up or diminish it and very contrary to their Practice in particular who have been far from suffering any of their Power of Judgeing and Imprisoning any Body to grow less and weaker since the 34. of H. 8. in Ferrers Case which is the first time that ever they Judged or Imprisoned any Body even of their own Members much less any other Body for what Offence soever though never so much in Violation of their Priviledges And that was when Ferrers a Member of their House sitting the Parlament was Arrested and Imprisoned in the Counter and their Serjeant sent by them only to demand their Member to come and attend the House not to bring those who had Arrested him as Delinquents to their Bar or any wayes to Punish them yet he was Beaten his Mace broken glad to return himself and leave the Member behind Then could they with their Speaker come up the whole House to the Lords Bar to complain and pray them to do them Justice And the Lords upon hearing this Complaint judged the Contempt to be very great and referred the Punishment to them being themselves it seems upon other Business and not at leasure for that Here was the beginning of the House of Commons Punishing any Body they were permitted to Inflict the punishment when the House of Lords had Judged the Offence For before that time they could but complain of any Wrong received the Lords were to Judge of it and punish the Offender If a Sheriff had not carried himself well in an Election of a Knight of the Shire the Lords took Course in it 5. H. 4. n. 38. The Sheriff of Rutlandshire had returned Onby instead of Thorp who was duly chosen the Lords upon Complaint to them command him to amend his Return and commit him to the Fleet and put him to Fine and Ransome at the Kings pleasure 18. H. 6. n. 18. The Sheriff of Cambridgeshire had made no Return at all The King by Advice of the Lords Spiritual and Temporal orders a new Election and the Sheriff to make Proclamation that no Person come thither with Arms in disturbance of the Peace 38. H. 6. n. 35. Many Knights of Counties and other Members had been unduly returned yet were received to sit the Commons come and desire they may be allowed for good and no Sheriff incur for it the penalty of the Statute 23. H. 6. which the King and Lords assented to at their Request If any of the Members or
their Servants were Beaten or Wounded or Arrested the House of Commons could not themselves punish them by their own Authority but must come to the King and Lords and pray in their Aid sometimes to punish them judicially sometimes to make an Act 〈◊〉 Parlament for it as was done 5. H. 〈◊〉 the Case of Rich. Chedder Servant 〈◊〉 Tho. Brooke Knight for Sommersetâ—â—â—â—e who was Assaulted and Beaten by one Iohn Savage The King by the Advice and Assent of the Lords at the Request of the Commons ordained that Savage should appeare and yield himself in the Kings Bench within a Quarter of a Year after Proclamation made for that purpose and appearing or not appearing if attainted of the Fact should pay double Damages to the Party and make Fine and Ransome at the Kings will and so to be done in time to come in like Cases And n. 74. of the same Parlament the Commons pray That all such Persons as shall Arrest any Knight or Burgess or their Servants As Parlementz venantz illeoques demurrantz a lour propres restournantz coming staying and returning not Forty dayes before the Sitting and Forty dayes after as now should pay Trebble damages to the Party grieved and make Fine and Ransome at the Kings will 31. H. 6. n. 25 26. Tho. Thorp their Speaker and Walter Raile a Member during a Prorogation had been taken in Execution and laid up in Prison when the Parlament came they wanted their Speaker and one of their Members and there-upon sent up some of their Number to the Lords to complain and desire them to set them at Liberty far from going about to do it themselves the Lords advise with the Judges and after Consultation think not fit to deliver them because they were imprisoned upon a Condemnation before Parlament when there was no Priviledge which they signifie to the Commons and charge them in the Kings Name to chuse another Speaker which they did one Sir Thomas Charlton Yet if any of the Members or their Servants were arrested within time of Priviledge then upon complaint the Lords did use to set them at Liberty as they did 8. H. 6. n. 57. William Lake Servant to William Mildred Burgess for London 39. H. 6. n. 9. Walter Clerk Burgess for Chippenham 14. E. 4. n. 55. Walter Hyde Burgess for the same place 17. E. 4. n. 55. Iohn Atwell Burgess for Exeter But the House of Commons never pretended either to Discharge any body out of Prison or to Commit any body to Prison or impose a Fine in any Case whatsoever till that 34 th of H. 8. when it was in one particular Case permitted and referred to them by the House of Peers Nor indeed can it stand with Reason and the Rules of Justice they should have such a Jurisdiction in regard they cannot give an Oath And is it rational or any wayes just that any Man should either be disseised of Property or deprived of Liberty without there be Testimony upon Oath that he hath done some thing to deserve it This seem to be against the Fundamental Laws of the Kingdome All this considered it is not probable were it true that the House of Commons did dislike that Acting of the Lords in the Case of Rich the Second to Unthrone and Imprison their Lawful King that yet out of that dislike and to avoid the present evil of being made joynt Actors in and Parties to that particular Judgement they would renounce being Parties to any and for ever debar themselves of a Power and Priviledge which did justly belong to them Nay more say they never had such a Power that it belonged onely to the King and Lords and that their part was but to sue and to petition This is hardly to be believed But who reades the Story will see that the Inference is not true and will find that at that time the Common People and even that House of Commons were full as much if not more than the Lords displeased with King Richard and favourers of Henry the 4 th who did so much rely upon the affection of the People that he brought no Military force with him out of France where he had remained in Banishment and that he landed at Rauenspurre in Holderness only with fifteen Lances but soon encreased to an Army of threescore thousand Men for as Historians say his strength was in the Hearts of the People where King Richards should have been who had so little of their Good-wills that when he was sent from Chester to London certaine Citizens had conspired to way-laye him and kill him if the Lord Major having intelligence of it had not prevented it himself riding forth with convenient company to guard him to the Tower And when the Parlament came which Henry the fourth then Duke of Lancaster called by Wriâ—â—s of Summons in King Richards name the House of Commons was as forward as the Lords in every point for Decrying Condemning and Deposing of King Richard When his Resignation was declared unto them by the Arch-Bishop of Yorke and Bishop of Hereford whom King Richard had made his Atturneys for that purpose and they were demanded if they would assent and agree to it they with one general Voice did expresly accept and admit the same When the Articles of his Charge were read unto them they all agreed that his Crimes were notorious and he worthy for the same to be deposed of his Princely Dignity and joyned in appointing Commissioners two Knights Sir Thomas Erpinghan and Sir Tho. Grey for them to goe with two Prelates and two Temporal Lords for the Peers to the Tower to pronounce unto King Richard the Sentence of his Deposition And they promoted several things that Parlament in favour of Henry the 4 th and his Friends and to the Depression and Reproach of Richard the second and his Friends which they inserted among their Petitions which according to usage they presented at the end of the Parlament which being granted at their request were established for Acts of Parlament So as the Penner of that Paper of Reasons for a Conference was much mistaken in what he there said of the Commons being then unwilling to be made Parties to that Judgement because it was to Depose their Lawful King and sure he either never had read the Story of those times or had forgotten it otherwise he would have knowen that they were as busie Actors as the Lords in that Deposing I mean in the Prosecution of it though not in the Judgement given upon it to which as to all other Judgements they disclaimed to have any right or Interest And it is in my Opinion rather an unanswerable Argument that they had no Interest nor could have none in any Judgement their Disclaiming it at this time and upon this occasion when they knew that nothing would be done to displease them and they were sure to obtain almost any thing they would ask with reason and with any colour of a new King so
judged in Ecclesiastical Courts whereof any Person is grieved and will appeal and it cannot be denied him So in Queen Elizabeths time they provide for those who are grieved with Judgements given in the Kings Bench or Exchequer and because Parlaments were not so frequent as formerly that Men should not stay long for Relief 27 31. Eliz. they appoint a rehearing by all the Judges meeting in the Exchequer Chamber from whence they might afterwards have their Recourse to Parlament But still the Statute leaves it to their Election to sue in Parlament and not go to the Judges at all except they please Now can we imagine they would take no care to give relief from unjust Decrees in Chancery but that the Current of Justice must there be at a dead stand A Man perhaps be Ruined against all Law and Equity and no help for him no remedy for so it must have been if a Parlament could not relieve him For that way of having a Commission under the Broad Seale directed to the Judges was never thought on till about the 43. of the Queen in those few Cases nor hath it ever been Practised since that wee know so as wee may be bold to affirme that our Ancestors knowing the Parlament to be the Supreame Court to which all Persons aggrieved with the proceedings of Inferior Courts did apply themselves for Relief and there had it thought it not needful to make any other Provision for those who should receive wrong in Chancery where heretofore they did not often doe wrong because in those dayes they had little worke not meddling with many Causes and the Chancellors were commonly Church-Men Sir Edward Cook saith That the first Decree in Chancery that ever he observed was 17. R. 2. and that an Act of Parlament had passed that same Year which gave the first ground for those Proceedings giving the Chancellor power to award Dammages according to his discretion to such as were vexed in that Court upon untrue Suggestions such Suggestions being duely found and proved untrue Certain it is they were in those times very rare the same Sir Edward Cook saith That none are found reported in their Law-Books before the Reigne of Henry the 6 th And this is one Reason why we find no Appeales in the antient Journals Besides as we have said before that the Journals are many of them lost and those that remaine are very imperfect Yet some there are That very first Decree before mentioned of the 17. R 2. n. 10. came to be examined 〈◊〉 the House of Lords The Case was tâ—â—s Iohn de Windsor being put out of Fossession of three Mannors in Cambridgeshire by Sir Robert de Lisle they referr themselves to the Arbitration of the King and Privy Councel who find it reasonable that Sir Robert de Lisle should restore them to Windsor and a Decree is made in Chancery to put this in Execution Lisle then petitions that he may be left to the Common Law The King grants it sends a Privy Seal to the Bishop of Winchester who was then Lord Chancellor and not William Courtney Arch-Bishop of Canterbury as Sir Edward Cook hath it to remand the whole Matter to be tried at Law The Chancellor doth it by a Writ de Procedendo under the Broad Seale Sir Robert de Lisle in the Interim sells these Lands to Sir Richard le Scroope Iohn de Windsor sets forth all this in a Petition to the King and Lords in Parlament and accuses Sir Richard le Scroope of Champerty The Lords order all the Proceedings to be brought into the House what passed in Chancery and what at the Privy Seal All which was viewed and examined by them and upon the whole Matter they gave this Judgement Quod non fuit nec habebatur aliqua Cambipartia Quod predictus Johannes nihil capiat per Petitionem suam Quod prediâ—lus Ricardus eat inde quietus ac Quod predictus Johannes proâ—equatur ad Communem Legem in hac parte si sibi viderit expedire The Lords here doe examine and Judge of what was done in Chancery which shews their Jurisdiction to extend thither And even their taking notice of any delay there is Argument sufficient of this Jurisdiction which Jurisdiction the Statute 14. E. 3. c. 5. doth fully prove to have been in them before the making of that Statute for that Statute doth onely provide for the placing it in some Lords named by the House to be exercised by them after the Parlament is Risen until it meet again and for that Interval of time Which shews that during the Parlaments 〈◊〉 such an expedient needs not for the relief of those who are deâ—ayed in Chancery because then the House doth it by a Power inherent in them and which so hath been time out of mind For there is no Record when that Power began no more then for their Power of rectifying Erroneous Judgments at the Common Law So that if the Lords be asked when that Power was given them and where it is Recorded They may answer as the House of Commons answered them in another Case about Imposing upon Merchandize that it will be found on the back-side of the Record by which they are Authorised for Erroneous Judgements For in truth there is no more a Record for the one then for the other Both those Powers are naturally of the Essâ—nce of a Parlament not conferred upon it by any Law extant But as the Common Law of the Land it is by Prescription time out of mind which is the difference between the Common Law and Statute Law The Common Law is by anâ—ient Usage and Custome of which no Man knowes the beginning Statute Lawes have a knowen time of beginning when first they were made and established by King Lords and Commons in Parlament before which time they were not in being Now we may say that the Power to correct the Errors of Inferior Courts as well of Law as of Equity and so of the Chancery is lodged in Parlament as a part of their Judicature by the Common Law of the Land I say of the Chancery both as it is a Court of Equity and as it is a Court of Common Law For both those Courts are in Chancery that of Common Law Coram domino Rege in Cancellaria is of all Antiquity and upon a Judgment given in this Court lies a Writ of Error returnable in the Kings Bench and consequently from thence to Parlament that of Equity is not so antient it is a Power growen up by degrees Sir Edward Cook saith That some are of Opinion that a Statute made 36. E. 3. did first give the Chancellor this Authority which Opinion he confutes and refers it rather to another Statute of 17. R. 2. as hath been said before however it is certain that In principio non fuit sic in the beginning it was not so And when ever or how ever it began when once it was begun and had a being it became subordinate
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
his Prayer seemed reasonable to the King and Lords the King did grant him his desire and discharged him of his attendance This was upon the Wednesday the Monday after at the request of the Commons he was restored to his Place and good Name That very Parlament he was again Petitioned against by Nicolas de Pontingdon for dispossessing him of the Mannor of Bygelegh upon pretence that Thomas his Father was a Bastard and by Richard Somestre likewise for dispossessing him of some Land in Thurverton he appears upon it and those Differences are referred to some Person there named to end them by a certaine time which it seems they could not doe for in 4. H. 4. I find Pontingdon petitioning still against him and making the same complaint of the same unjust act and then the Lords referre the Matter to be tried at Law but determine and appoint first what shall not be the Point in Issue to wit a pretence of Sir Philip Courtneys of a Release made unto him by one Thomas Pontingdon a Parson then they appoint what shall be in Issue to wit the Bastardy of Thomas the Father The House of Commons it seems did not in those dayes find fault that a Business concerning a Member was by the Lords entertained and a Determination made in it and more that a Member should think himself unworthy and unfit to sit in the House of Commons because there was an Accusation brought into the Lords House against him and to make it his sute to the King and Lords to dispence with him from sitting till he was cleared and till that he stood right again in their good Opinions The House of Commons did not then send him to the Tower for shewing his respect and deference to the House of Lords So far from it that they come themselves Sutors to the King and Lords in his behalf and pray that he may be restored to his place in their House as likewise to his good Name and at their request the King and Lords doe it There was not in those dayes the least question made nor the least difference between the two Houses upon on this score Now Counsel has been pulled from the Bar in Westminster Hall and sent to the Tower for having but pleaded at the Lords Bar in a Cause wherein a Member of the House of Commons hath been concerned the so doeing voted a Breach of their Priviledge which would not have been so thought heretofore as appears by this President And there are other Presidents both Old and New which demonstrate the truth of what I say 3. R. 2.24 25. Iohn Earle of Pembrook and William le Zouch complaine in their Petition A lour tres redoute Seignor le Roy as Seig rs du Parlement that Sir Robert de Roos of Ingmarthorp and Thomas his Sonne sued them in Chancery and endeavoured to get a Tryall at the Assizes in the Countrey for some Lands settled upon them by their Kinsman William de Cantlow which Settlement Sir Robert Roos they say maintained to be otherwise then in truth it was and to be for the advantage of his Son by which means he would recover those Lands from them The Lords refer the Business to three of the Judges who are to call all Parties before them to examine the Matter and to report it to the House which they did and then delivered the Examinations and the Accompt of their proceedings in Writing to the Clerk of the Parlament Sir Robert Roos was then Knight of the Shire for Yorkshire yet being Summoned appearred before those Judges who had order to Examine him and the Business which concerned him 5. R. 2. n. 61. Sir William de Eurcester and Margaret his Wife set forth in their Petition several eomplaints of the miscarriages and deceitful dealings of Sir Thomas Hungerford entrusted by them in many Businesses who had warning to put in his Answer Luy quiel Monsieur Thomas saith the Record vint en Parlement en sa persone faisant primerment sa protestation de adjouster corriger amender si embusoigneroit y fist sa responce le mist avant en Parlement en escript en la forme que sensuyt La responce de Thomas Hungerford Chevalier c. That is the said Sir Thomas came into Parlament in Person making first protestation to adde correct and amend as there would be need then put in his Answer in Writing in the forme following viz. The Answer of Sir Thomas Hungerford c. He was then Knight for Sommersetshire And this appears as well for him as for Sir Robert Roos that they respectively served for those Counties by the Writts de Expensis Militum which are in the Clause Rolls in the Tower for those Parlaments The Journalls of Parlament say nothing of it nor can it be expected they should for the Names onely of the Persons and of their Business are there Recorded whether or no they were Members of Parlament is not mentioned nor taken notice of as not materiall nor no wayes altering the Case Sir Philip Courtney indeed is in the Journal expressed to be Knight for Devon upon that special occasion of his coming up to the Lords House and desiring to be discharged his attendance till he was purged else neither had he been knowen to be so by the Record of the Journall We may see that by the Journals now Where Mens Names are entred as there is occasion for it of Businesses in which they are concerned but never of their being or not being Parlament Men Yet it being within our Memory we remember some as Sir Arthur Ingram 21. Jac. May 28. he was then a Member of the House of Commons yet one Mrs. Grizil Rogers petitions the House of Lords complaining how she was sued and vexed in several Courts by him and others there named for some Lands in Sommersetshire and she desires their Lordships to end those differences and to settle her Title Upon which there is a long Order made for that purpose every particular thing in question between them is determined and all Sutes are ordered to cease in those other Courts In the Parlament of 16. Car. 1. Apr. 6. Sir Robert Pye was a Member of the House of Commons and yet the Lady Dyer sets forth in her Petition to the Lords how he and one Mr. Button had extended Lands belonging to Sir Richard Tichburne at a far under-value so as she who had likewise a Judgement after theirs upon those Lands for a Debt oweing to her was in danger to lose it The Lords order Counsell on both sides to agree upon drawing up Assurances for the satisfying of all Parties the Parties themselves to signe and seale them and so the Lady Dyer to be paid her Money The House of Commons then found no fault with these Proceedings there was no Quarelling with the Lords nor questioning of their Jurisdiction no Vote for committing of those who petitioned for relief in a Cause against a Member
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