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
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
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
THE CASE STATED Concerning the JUDICATURE OF THE House of Peers In the Point of APPEALS Printed in the Year MDCLXXV The Case stated concerning the Iudicature of the House of Peers in the point of Appeals ONe chief end of Parlaments besides that of making good and wholsome Laws for the well governing of the Kingdom is to redress and reform Abuses of Inferiour Courts and to direct them in Cases of great difficulty when by reason of some Circumstance in matter of Fact the Law is not so plain as that they can proceed to give Relief to such suiters as stand in need of Relief and demand it and then have those Courts applied themselves to the Parliament for Advice and Direction Whereas in other Cases where there hath been either a Perverting of Justice in giving a wrong Judgement or a wilful delay of Justice in giving no Judgement at all there the Party grieved complaining to the Parliament finds that Remedy which his Case requires Therefore is it that 1. R. 2. n. 95. the Commons pray That a Parliament be yearly holden to redress delays in Suits and to end such Cases as the Iudges doubt of Now the next thing to be enquired into is how and in what manner the Parliament doth exert this power of Judicature over Inferiour Courts and where and in what part of the Parliament this Jurisdiction is lodged which I think will be easily made out to be singly and solely in the Upper House the House of Peers that there it is and hath ever been both De facto de jure That it hath been Practised so you have multitudes of Presidents sometimes in case of delay in Justice sometimes in case of an Erroneous proceeding in the Application of it As in the 14. E. 3. in the Case of Sir Iohn and Sir Ieffery Stanton Sir Ieffery comes and complains to the House of Lords of delay in the Court of Common Pleas the House of Lords first send to those Judges to proceed to Judgement by a Writ containing the whole Matter as it was represented to them with this that in case the Judges there could not agree in regard of Difficulty or any other Cause they should then come into Parliament and bring with them the Record of the whole Process which Sir Iohn Stonore the Chief Justice did and then the House of Peers as it is expressed in the Roll Les Prelats Countes Barouns Autres du Parliament and who those Autres were is likewise expressed not any of the Lower House but Le Chaunceller Tresorer Iustices del un Bank del autre autres du Conseil du Roy that is Those who were Assistants in the House of Peers as the Attorney and others of the Kings learned Counsel and even the Chancellor and Treasurer if they were not Peers they declare Est finalement accordez the Roll saith it is finally agreed what the Judgement shall be and they command those Judges Quils en lour Bank aillent le Iugement rendre that they go and pronounce that Judgement in their Bench. But there is an Act of Parliament in that 14. of E. 3. c. 5. and that Act is still in force which shews the right of such a Judicature to be in the House of Peers It ordains That a Prelate two Earls and two Barons shall be chosen every Parliament who shall have a Commission from the King to hear the Complaints of those that will complain unto them of such Delays or Grievances done to them in the Chancery Kings Bench Common Bench or Exchequer shall cause the Iudges of the Court where such Delay is complained of to come before them with the whole Process in the Cause may call to them the Chancellor Treasurer Iustices of either Bench and Barons of the Exchequer as they shall think fit to assist them So shall proceed to take a good accord and make a good judgement and then send that to the Iustices before whom the Plea did depend with order that they hastily go to give judgement accordingly And if the Case were of such difficulty as that they could not well determin it they were then to bring it to the next Parlaement where a Final Accord was to be taken what judgment ought to be given which was to be sent to the Iudges and they commanded to proceed without delay and give that judgment And to begin to do Remedy upon this Ordinance they are the words of the Act the Lords are named viz. The Arch Bishop of Canterbury the Earls of Arundel and Huntington the Lord de Wake and the Lord Ralph Basset and it is Enacted that a Commission and a Power should be granted to them to endure till the next Parliament For this was but for the Intervals of Parlament the Parliament Sitting the Complaint was to be made to the House and the House to give the Redress Then for Erroneous Judgements and Decrees whether given in Courts of Law or Courts of Equity that the Remedy en dernier ressort lies likewise in the House of Peers will I think be easily proved Concerning the Courts of Law it is not at all Controverted but that by a Writ of Error all such Judgements in Inferiour Courts with which any Body shall find himself aggrieved may be removed unto and Reversed in that House if they find cause for it It is true that in Rastals Collection of Entries Tit. Error en le Parlament pag. 302. there is this Clause inserted in the Writ there entred viz. Vobis mandamus quod Record Process c. in presens Parliament c. mittatis hoc Breve ut inspect Recordo Processis predicto Nos de Consilio advisamento Dominorum Spiritualium Temporalium ac Communitatum in Parliamento nostro predict existent ulterius pro errore illo corrigendo fieri faciamus quod dejure secundum Legem consuetudinem Regni nostri Angliae fuerit faciendum Here one would think is a clear Testimony that the House of Commons are Copartners with the Lords in Judging those Writs of Error But I may say there is an Error in this Entry and it was set right that very year in the 1. of H. 7. by a Meeting and Consultation of all the Judges in the Exchequer Chamber It is in the Year-Book Pasc. 1. H. 7. p. 19 20. in Flouredews Case the words are these Et postea per avisament omnium Iusticiariorum in Camera Scaccarii existent congregat pro eadem materia errore illo corrigendo sic intelligendum est si Parliament sit apud Westm. tunc oportet partem habere billam de Rege indorsatam c. Et quam cito Billa sic indorsata fuerit Breve de Errore Transcriptum pred in Parliamento deliberentur Clericus Parliamentorum habebit custodiam inde Et per Dominos tantum non per Communitatem assignabitur Senescallus qui cum Dominis Spiritualibus Temporalibus per concilium Justiciariorum procedent
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
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
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
much beholding to them whose best Title to and strongest Hold of his New-gotten Crowne was their Affection and Good-will towards him Therefore the Lords may very well owne the citing of that Record and not account it any Dishonour to them notwithstanding the gentle admonition given them to the contrary by the Writer of that Paper of Reasons And so I hope I have sufficiently evinced this truth that the sole Jâ—dicature of Parlament is lodged in the House of Peers and that all who come for relief to Parlament must have it there It now rests to shew that it extends to the Relieving of such as have suffered wrong in Courts of Equity and receiving of Appeales from those Courts We have already seen that in case of Delay of Justice the House of Lords doth give Relief and by the same reason they may do it in case of Deniall of Justice and of doing Injustice And in truth there is greater Reason for it for when Justice is but delayed a little waiting and patience may happily bring a Remedy but when an unjust Decree is given there is a Ne plus ultra in that Court no help is to be there expected and without such an Appeal the Party grieved must be without Remedy Then why not as well receive an Appeal from a Court of Equity and give Relief upon it if there be cause as to reverse an Erroneous Judgement upon a Writ of Error from a Court of Common Law as hath been said already there is more danger from a Court of Equity where ones Doome depends upon the will of one Man that is not tied to the strict Rule of Law than where there are four Judges who have that strict Rule to goe by And can it be believed that in a Government so well modelled and established by the Wisdom of our Ancestors as this is there should be a standing known Remedy appointed for the lesser evil which apparently will more rarely happen and none for the greater which probably may befall us much more frequently In the third place one may argue thus By the constitution of this Government generally from all Inferiour Courts where any Body is grieved he may appeale to a Superiour and so Gradatim till he come to the highest of all the Supreame Judicature in Parlament as 50. E. 3. n. 38. was said to the Bishop of Norwich that Errors in the Common Pleas were to be corrected in the Kings Bench and of the Kings Bench in the Parlament So from particular Courts that are in several Counties and from Judges of Assize yea from Ireland the Party grieved resorts to the Courts of Westminster and from them to the Parlament This is the ordinary Tract but where it is otherwise provided by Act of Parlament in special Cases to make some Judgements in some Judicatories finall Else the last resort where all appealing terminates is the supreame Court of Parlament whither they have still come from all the Courts in England sometimes Gradatim by steps going first to other Courts sometimes immediately Per saltum from the Court it self where the Judgement complained of was first given And so have they received Complaints and given Relief from Sentences in the Star-Chamber as in 1641. April 2. to Mr. Lambert Osbolston In the High Commission to Nicholas Bloxam 1640. Febr. 9. and to Sir Robert Howard December 22. the same Parlament and to Iohn Turner December 30. who had laine fourteen years in Prison by a Sentence of the High Commission So from an Order of the Counsel Table to William Waters and Thomas Waters Ianuary 25. who had been committed thence for refusing to pay Ship-Money and they made Dr. Clerk and Dr. Sibthorp reimburse their charges and pay them 100 l. damages for procuring them that trouble by a false Certificate The 9 th of February from a Sentence in the Ecclesiastical Court at Glocester by which Iohn Radway William Newark and Walter Coates had been committed to Prison and Excommunicated And February 23. The Lords gave Relief to Abraham Hill who had been committed to Prison by the Major of Colchester Multitudes of such Presidents may be produced who will take the pains to look over the Journals but these are sufficient to shew that upon complaint the House of Peers hath still given Redress to what ever hath been done amiss by any other Court Ecclesiastical or Civil Court of Law or Court of Equity and was never found fault with till now But now they must not meddle with Appeals from Decrees in Chancery and if a Member of the House of Commons be concerned it is then a Breach of their Priviledge and that House will punish any Counsel that shall appear at the Lords Barr to plead against a Member together with the Party himself that brings the Appeal and all others employed by him in the solliciting and following his business So then a Person that cannot obtaine Justice in Chancery who perhaps hath been brought thither against his will and is barred by an Injunction there from pursuing his Right in any other of the Kings Courts of Westminster and that wrongfully as Injunctions are some times laid on in Chancery There he cannot have Right but is opprest with an unjust Decree and he hath no Remedy but must lie under that Oppression and the Supreame Court of Judicature in the Kingdome which receives Complaints and gives Relief against the Erroneous Proceeding of all other Courts must be Impotent in this behalf This is not only a Derogation to the High Court of Parlament but it would be a great Defect in the general Administration of Justice in this Kingdome To this is answered Yes there is a Remedy proposed to prevent a Failer of Justice The King may grant a special Commission whensoever there is occasion to certain Persons to the Judges as it was 43. Eliz. to reheare the Cause and give relief to the Party grieved But it is replied First That it may be doubted if this can be done without an Act of Parliament Secondly Admit it may yet as the King may grant it so he may refuse it for there is no Law to make him do it Ex debito Iustitiae therefore if he doth it it will be but Ex gratia ex mero motu which doth not salve the Objection that there would be a defect in the established Rule for the Administration of Justice which ought to make the doeing of Justice a necessary Duty incumbent on the Magistrate be he Supreame or be he subordinate and not leave it voluntary to himself to be Ad libitum It cannot be believed that the Wisdome of our Ancestors would leave the Administration of Justice so loose and uncertaine We see how in the time of Henry the Eight when they annexed all Ecclesiastical Jurisdiction to the Crown they by Act of Parlament 25. H. 8. c. 19. gave the King power by Commission under the Great Seal to appoint such Persons as he shall Name to reheare any Cause