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