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
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
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
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