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 [Page 2] 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, [Page 3] 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 [Page 4] 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, [Page 5] 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 [Page 6] 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 [Page 7] 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 ad Errorem corrigendum. Here is a Ne­gativa praegnans, to the House of Com­mons, Et non per Communitatem, as if it was not enough to say by the Lords alone, there is added, That it must not be by the Commons. Nothing can be clearer than this, and the Practice hath been according to it in all times, both preceding and following.

[Page 8]Some question hath been made of Appeals from Courts of Equity, whe­ther or no that House hath Cognisance of them? And more is it questioned, If a Member of the House of Com­mons hath been concerned in the Ap­peal, which hath now this last Session of Parliament been absolutely and peremptorily denied, and strongly opposed by the House of Commons? But I no wayes doubt of making it ap­pear as clear as the Noon-day, that all Appeals (whoever is concerned in them) are regularly and properly with­in the Cognisance and the Jurisdiction of the House of Peers, and so have ever been.

And to speak truly, There was An­tiently no difference in the way of com­plaining of Erroneous Judgements gi­ven in Courts of Law, and that of un­just Decrees made in a Court of Equi­ty. Both were by way of Petition from the Party grieved, setting forth the Cause of his Complaint, and shew­ing wherein the Court had Erred in the Adjudging and Determining his Cause [Page 9] before them: In the Rolls of Parlia­ment from the beginning of Edward the Third, to the end of Edward the Fourth, (which are all that are in the Tower) there is no mention of any Complaint of an Erroneous Judgement brought into Parliament, (that is to the House of Peers) by a Writ of Error, (as it is now the Practice) from the Courts of Law, but all were by Peti­tion, as the Appeals are now from De­crees in Equity. And this Change is crept in of late Years we know not how, nor exactly when, but certainly in those times of which the Parlament Jour­nals are either totally lost, as those of the times of Richard the 3 d, and Henry the 7 th and between the 7 th and the 25 th of Henry the 8 th, or else made so Concise and Imperfect, recording no­thing but Bills and their several Read­ings, and some Proceedings upon them, and very little, as good as nothing of any private Businesses, that one cannot have a certain knowledge how the Judi­cature was then exercised in the House of Lords, as appears by the Journals [Page 10] extant of H. the 8 th, and all since, even till the 18 th of King James, when Henry Elsing came to be Clerk of the Parliament, who first took care to en­ter duly in the Journal Book all that passed in the House. But however, this Alteration, and the difference that seemingly is between complaining by a Petition of Appeal, and bringing of a Writ of Error, hath given occasion to the House of Commons to Dispute the Jurisdiction of the House of Peers, in case of Appeals, and pass some Vote against it, and more Declaredly and Avowedly to oppose the Proceedings of the Peers upon Appeals, when any Member of their House hath been con­cerned.

For Appeals in General, They have declared that the House of Lords hath no Right to Receive and Judge of any from Courts of Equity, a thing was never Questioned in any preceding Par­liament, though it hath been ever Pra­ctised. And there is the same Reason for it, if not more, than for their reversing Erroneous Judgements at the Common [Page 11] Law. For in the Courts of Common Law, there are Four Judges, and they will not easily be all mistaken, and all concur in giving a false Judgement; and a Suitor there, is more like to re­ceive Justice, especially in regard they have a strict Rule to go by, the Rule of the Law, which is a known Rule, than where there is but one Judge, as in Chancery, and who hath a greater La­titude to proceed by, varying from the exact Rule of Law, and guiding him­self much by his own Discretion: It is easie for such a Judge to err, though perhaps not willingly, and hard it were, that there should then be no Remedy.

But it will be said, The King may then grant a Commission to certain Per­sons, to give Relief to such as shall find themselves aggrieved with any unjust Decree, as was done by Queen Eliz. in the 43 d. year of her Reign, in a Case of the Countess of Southampton and the Earl of Worcester, mentioned by Serjeant Rolls, in the Report of the Case of Vaudrey and Pannel, p. 331. where he saith it was resolved by all the Judges, [Page 12] which they set under their Hands, that when a Decree is made in Chancery, upon Petition to the Queen, She may refer it to the Judges, (but not to any other but to them) to Examine, and Reverse the Decree if there be cause, and accordingly by such a Reference that Decree was Reversed. Sir Edward Cook, also in his 4 th Institute, c. 8. treating of the Court of Chancery, gives two Presidents more of the like nature, one of the same 43. Eliz. in Sir Moyle Finches Case, he Defendant, the Earl of Worcester, and others Plain­tiffs, whereupon a Petition to the Queen, a Decree in Chancery was re­ferred to the Judges, and their Resolu­tions against it being certified into the Chancery, the Decree was Reversed: The other President is three Years be­fore, 40. Eliz. in Throgmorton's Case, the same Sir Moyle Finch, there like­wise Defendant, where a Demurrer of his being Over-ruled by the Chancellor, upon a Reference to the Judges, it was by them otherwise resolved, and their Resolution being by the Chief Justice [Page 13] Popham signified to the Chancellor, there was no further proceeding in Chancery. To these Presidents is an­swered, First, That it may be doubted, if the Opinion and Proceedings of the Judges at that time be so authentick, as to make it pass for Law, to set up a new Court of Equity. Sir Edward Cook, in the same Treatise, fol. 87. saith in Perrots Case, Mich. 26, and 27. Eliz. That it was resolved by Sir Christopher Wray, Chief Justice, and the Court of Kings Bench, That the Queen could not raise a Court of Equity by Her Letters-Patents, and that there could be no Court of Equity but either by Act of Parliament, or by Prescription time out of mind: And in Hobberts Re­ports fol. 63. in the Case of Martin and Marshal, it is said, That this Court of Equity is a special Trust committed to the King, and not by him to be Committed to any other but his Chancellor. How then can King or Queen Commissionate any or her Persons to be Judges in Equity of any Cause? For what is it but a Court of Equity, when all the Judges are [Page 14] Commissionated to assemble themselves to rehear a Cause, formerly Decreed in Chancery, which they do Judge a-new, and Determin it upon hearing Coun­sel of both sides, for or against the De­cree, Secundum aequum & bonum, accord­ing to the Course of Equity, and not by the strict Rule of Law. This is cer­tainly at least a Temporary Court of Equity: It is true, that for 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 [Page 15] 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 [Page 16] 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 [Page 17] 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 [Page 18] 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 [Page 19] 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: [Page 20] 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 [Page 21] 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▪ [Page 22] then the Business coming to hearing, Il 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 [Page 23] 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 [Page 24] 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 [Page 25] 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 [Page 26] 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 [Page 27] their Peerage: So jealous were they then of their Priviledge of Judicature, that they would not suffer any thing to Pass, not from the King himself, that did but looke like a Violation of it: But their Predecessors went further than this in Henry the Fourths time, for here they suffered the King to have his Desire only with a Salvo to them­selves, but 5. H. 4. n. 12. they abso­lutely opposed the King in what he would have done, and would do it themselves in another way: For the Earle of Northumberland coming into Parlament before the King and Lords, and by his Petition acknowledging his Offence, that he had done contrary to his Allegience in raising Men, and giving of Liveries, and therefore beg­ging Pardon, and the rather for that upon the Kings Letters, he had yielded himself and come to the King at York; the King having thereupon delivered this Petition to the Justices to have them consider of it, the Lords pro­tested against it, said, the ordering of it belonged to them: And that therefore [Page 28] as Peers of Parlament, to whom such Iudgement belonged, they would take the Business into Consideration them­selves, and then examining the Sta­tutes, that of 25. E. 3. of Treason, and of the second of the then King H. 4. against Liveries; upon well weighing them they adjudged the Earle of Nor­thumberlands Fact to be no Treason, but only a Trespass fineable to the King: Whereupon the King pardoned him, and received him into Favour.

And the Lords were not more care­ful to assert and maintain this Jurisdi­ction of theirs, than all English-Men were to acknowledge it, the Judges both in and out of Parlament have ever had a Deference to it; In the Year-Book of 40 E. 3. Termino Michaelis, pag. 39. An Action being brought up­on the Writ de Rationabili parte bono­rum, and some difference being of Opi­nions, if the Action was good, that learned Judge Moubray delivered his, Qe les Seignours en Parlement ne graunteront my que cest accion est maintenable per [Page 29] ascun comune custome ou ley de ce Realme. The Lords in Parlament will not yield this Action to be maintainable, he meant, they had Judged it otherwise: And to that Judgement of the Lords, Sir Edward Cook, hath Reference in his Comment upon Littleton, Sect. 267. where he saith, that it hath been resolved in Parlament, that a Custome must be alledged in some County, &c. to enable the Wife and Children to the Writ de Rationabili parte bonorum. It would be but Labour lost, to heap up more Proofs, and more Presidents for the asserting and maintaining of the Judicature of the House of Peers; Yet I shall add one more, which is in truth Instar omnium, for it is a Law having the Concurrence of King, Lords, and Commons, not a Constituting-Law, but a Declaratory-Law, (which is the strongest asserting and confirma­tion of any Law or Custome already established, that can be). It is that of the 1. H. 4, n. 79. the Record saith, That the Commons come and shew to the King, That as Iudgements in Par­lament [Page 30] belong only to the King and Lords, and not to the Commons, except in case it please the King out of his special Grace to acquaint them with those Iudgements in favour to them; so that no Entry ought to be made Prejudicial to them, to make them Parties now or hereafter, to any Judgements given or hereafter to be given in Parlament: To which the Arch-Bishop of Canterbury answered by the Kings Command, that the Commons are but even Petitioners and Suitors, and that the King and Lords have ever had and ever shall have Right to the Judicature of Parlament, as the Commons do them­selves set forth; saving that the King will have their Advice and Assent in making of Laws and granting of Sub­sidies, and doing such things for the Pub­lick Good: This Order to be observed and kept in all times to come. Here is a cleare Renunciation of all Pretence to Judicature by the Commons them­selves, and a full Declaration and Ac­knowledgement of it to be only in the King and Lords, that it hath been e­ver so for the time past, and must be so [Page 31] for ever in time to come: And this de­clared by King, Lords and Commons, as a thing Notorious, known to all Men, and not disputed or doubted of by any. What can be said against this? Yes, that Paper which goes about from Hand to Hand, that I mentioned before, of Reasons prepared for a Conference, saith, that this Record was made upon occasion of Judgements gi­ven by the Lords, to Depose and Im­prison their Lawful King, to which the Commons were unwilling to be made Parties: Admit it were so, yet no Man would think that the House of Commons would, to avoid that pre­sent Inconvenience, divest themselves to all intents and purposes of so great a Priviledge, if in other things and be­fore that time they had ever had right to such a Priviledge; nay more, that they would say against themselves a thing in it self untrue, if it were un­true, as in truth it is not, but is most true, viz. That Judgements in Parla­ment belong only to the King and Lords, and not to the Commons. This is not [Page 32] to be believed, being against the gene­ral Practice of all Judges of Courts, that will Ampliare Jurisdictionem, ra­ther than deliver it up or diminish it, and very contrary to their Practice in particular, who have been far from suffering any of their Power of Judge­ing and Imprisoning any Body, to grow less and weaker since the 34. of H. 8. in Ferrers Case, which is the first time that ever they Judged or Imprisoned any Body, even of their own Mem­bers, much less any other Body for what Offence soever, though never so much in Violation of their Priviledges: And that was when Ferrers a Member of their House sitting the Parlament, was Arrested and Imprisoned in the Counter, and their Serjeant sent by them, only to demand their Member to come and attend the House, (not to bring those who had Arrested him as Delinquents to their Bar, or any wayes to Punish them) yet he was Bea­ten, his Mace broken, glad to return himself, and leave the Member be­hind. Then could they with their [Page 33] Speaker come up the whole House to the Lords Bar to complain, and pray them to do them Justice: And the Lords upon hearing this Complaint, judged the Contempt to be very great, and referred the Punishment to them, being themselves it seems upon other Business, and not at leasure for that. Here was the beginning of the House of Commons Punishing any Body, they were permitted to Inflict the punish­ment, when the House of Lords had Judged the Offence.

For before that time they could but complain of any Wrong received, the Lords were to Judge of it, and punish the Offender. If a Sheriff had not car­ried himself well in an Election of a Knight of the Shire, the Lords took Course in it.

5. H. 4. n. 38. The Sheriff of Rut­landshire had returned Onby instead of Thorp, who was duly chosen, the Lords upon Complaint to them, command him to amend his Return, and commit him to the Fleet, and put him to Fine and Ransome at the Kings pleasure.

[Page 34]18. H. 6. n. 18. The Sheriff of Cam­bridgeshire had made no Return at all: The King by Advice of the Lords Spi­ritual and Temporal orders a new Ele­ction, and the Sheriff to make Procla­mation, that no Person come thither with Arms in disturbance of the Peace.

38. H. 6. n. 35. Many Knights of Counties and other Members had been unduly returned, yet were received to sit, the Commons come, and desire they may be allowed for good, and no Sheriff incur for it the penalty of the Statute 23. H. 6. which the King and Lords assented to at their Request.

If any of the Members or their Servants were Beaten or Wounded, or Arrested, the House of Commons could not themselves punish them by their own Authority, but must come to the King and Lords, and pray in their Aid, sometimes to punish them judicially, sometimes to make an Act [...] Parlament for it, as was done 5. H. [...] the Case of Rich. Chedder, Servant [...] Tho. Brooke Knight for Sommerset­ [...]e; who was Assaulted and Beaten [Page 35] 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 [Page 36] 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.

[Page 37]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 [Page 38] 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 [Page 39] 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 Wri [...]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 [Page 40] 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 [Page 41] 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 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 J [...]dica­ture [Page 42] 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, [Page 43] 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 [Page 44] 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 [Page 45] 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.

[Page 46]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 [Page 47] 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 [Page 48] 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 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 [Page 49] 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 [Page 50] 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 t [...]s, Iohn de Windsor be­ing put out of Fossession of three Man­nors [Page 51] 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 [Page 52] Matter they gave this Judgement, Quod non fuit nec habebatur aliqua Cambi­partia, Quod predictus Johannes nihil capiat per Petitionem suam, Quod pre­di [...]lus Ricardus eat inde quietus, ac Quod predictus Johannes pro [...]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 de [...]ayed in Chancery, because then the House doth it by a Power inherent in them, and which so [Page 53] 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 Ess [...]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 an [...]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 [Page 54] 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 [Page 55] ever, or how ever it began, when once it was begun and had a being, it became subordinate 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 [Page 56] 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 [Page 57] 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 [...]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 [Page 58] 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 [Page 59] 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 [Page 60] 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 [Page 61] 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.

But let us take the House of Lords as it is, though there be many young Men, there are some more Elderly, and it is they commonly that sit out hear­ing Causes, and even amongst the [Page 62] young Lords there be some that apply themselves to Business: In the general, it may be said of that House, that ma­ny among them are Persons of Honour and of Integrity, that will not be By­assed, and of experience to Understand and Judge aright of such Matters as are brought before them: The great Officers of the Kingdome are part of that Body, who in all reason should be knowing Men; the Chancellor of Eng­land is alwayes their Speaker, who is commonly a Person skilled in the Law; and they have all the Judges of the Land, to be their Assistants, with whom they advice, and by whose advice they are guided in difficult Points of Law, as it is said in Flouredew's Case 1 H. 7. Ter. Pasc. f. 20. Senescallus cum Domi­nis Spiritualibus & Temporalibus per Con­silium Iusticiariorum procedent ad Erro­rem corrigendum; by the Counsel and Advice of the Judges they shall correct the Errors, viz. of the Judgement complained of. So it is probable, and there is Ground to hope and expect, one may find Justice here, as soon as [...]n [Page 63] any other Judicatory; Nay perhaps sooner here. For when a Lord Chan­cellor or a Lord Keeper is concerned, as he is in all Appeals from Decrees in Chancery (which is the proper Que­stion at this time before us) a Commis­sion to the Judges, or to any other Sett of Men, is not so likely to relieve a poor Man, that is opprest by an unjust De­cree, (whereby those Commissioners may incurre the displeasure of so great a Person, by censuring and vacating his Act) as the House of Peers, who are not in that Awe of him and Subje­ction to him, as all particular Persons are. Which consideration alone hath heretofore been sufficient to justifie the Lords interposing even in the ordinary Judicature of the Kingdome, in Causes between Party and Party: And the Commons themselves did then so farr approve of this, as they made it their desire to the King, that it might be so: So as it passed into a Law, to be an Act of Parlament, and a Statute, according to the Formality of making Lawes in those times. 1 R. 2. m. 11. [Page 64] They pray Que querele entre parties ne soit attemptez ne terminez deuaunt Srs. ne Officiers du Conseil mes que la commune ley courge sans estre tarie es lieux on ils so­loient dancien temps estre terminez sil ne soit ticle querele & encontre si grande personne que home ne suppose aillours dauoir droit. The Answer is, Le Roy le voet. They pray, That Sutes between Party and Party may not be retained and determined before the Lords nor be­fore the Councel▪ but that the Law may have its Course, and no Obstruction of it b [...] there where such Businesses did an­tiently use to be determined, except it be in such a Sute, and against so great a Person, as one cannot otherwise hope to have Justice; and the King grants it. And 1. H. 4. n. 160. this Statute is again Confirmed. Now I know not what S [...]e nor what Business can be fitter to be within this Exception, then where a Lord Chancellor or a Lord Keeper is concerned for the mainte­nance of a Decree which himself hath made. Besides we know what Influ­ence that great Officer hath in all Com­missions, [Page 65] that Issue under the Great Seal, for naming and appointing the Persons that shall be Commissionated by them: And certainly one that complaines of Injustice done by so great a Person would not willingly, that he should have hand in appointing the Persons that must Examine and Redress it. So as all things considered, I do not see where such a Power as this could bet­ter be lodged, then in the House of Peers; if it were not already there; and that we were now to chuse where it should be placed.

Yet all Men are fallible, and Parla­ments may erre, and do erre many times; and therefore as commonly se­cond Notions and second Thoughts are better, and consequently second Judge­ments, so there lies even an Appeale from the first Judgement in Parlament, but it must be still to the Parlament, as the Law Books say, Error in Par­liament convient estre reverse per Parla­ment, that is in another Parlament, or another Session, not in the same.

[Page 66]All this tends to shew, that not one­ly the Right of Appeales is in the House of Lords, but that neither can it be better any where else: Yet there is still one Point behind, not yet trea­ted of, which must be cleared before I make an end; and that is, Whether the Lords may proceed upon an Ap­peale, if a Member of the House of Commons be concerned: And the same question then may be moved con­cerning Writs of Error, for if the Pri­viledge of that House extends to the one, it must extend to the other, the same reason being for both, as likewise for the Lords not medling with any Business, wherein any of their House is concerned.

In the first place let us consider what the Usage hath been heretofore, and what the Judicature of the House of Peers hath been, and how exer­cised in relation to the House of Commons. That heretofore in the Antient times even till Henry the 8 th. when the House of Commons did need any thing, either for repelling any In­jury [Page 67] done to them, and punishing those who had done it; or for supplying them with any thing they wanted and desired for their advantage and well being, they did then come and pray in the Aide of the Lords, who did examine the parti­cular Businesses, and apply the neces­sary Remedies, (they being altogether unable to help themselves) hath I think been sufficiently proved already in the former part of this Discourse.

The Question is now, as that was when they complained, and when it was at their desire, so if when others complained of them, and sought reme­dy against them, the Lords had then power to receive the Complaint, and relieve the Party grieved; Which questi­onless they had: Nor was it ever know­en that ever the House of Commons did before pretend to such a Priviledge, as that their Members should be ex­empt from being put to answer in the House of Lords, when any Sute was there commenced against them. 16. R. 2. n. 6. Sir Philip Courtney being Knight for Devonshire, presents himself [Page 68] to the House of Peers Disant coment il auoit entend [...]z que certeins gentz lui a­voient accusez & esclandrez au Roi & as Seig ^rs. &c. Saying, he heard he had been accused and slandered to the King and Lords of doeing great wrongs, and prayed he might be discharged from serving in Parlament untill he was pur­ged and cleared of them, and the Record saith, A cause que sa priere sem­bla au Roi & as Seig ^rs. honeste le Roi luy ottroya sa requeste & lui en dischar­gea, because his Prayer seemed reason­able to the King and Lords, the King did grant him his desire, and discharged him of his attendance: This was up­on the Wednesday, the Monday after at the request of the Commons he was restored to his Place and good Name. That very Parlament he was again Pe­titioned against by Nicolas de Pontingdon for dispossessing him of the Mannor of Bygelegh, upon pretence that Thomas his Father was a Bastard; and by Ri­chard Somestre likewise, for disposses­sing him of some Land in Thurverton; he appears upon it, and those Differ­ences [Page 69] 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 [Page 70] 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 [Page 71] 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 [Page 72] 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 [Page 73] 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 [Page 74] 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 [Page 75] questioning of their Jurisdiction, no Vote for committing of those, who pe­titioned for relief in a Cause against a Member, no sending of Counsell to the Tower for pleading for their Clients at the Lords Bar, no stop of the Current of Justice: It was then observed, what the Wisdome of our Fore-Fathers had enjoyned Westminster the 2 d. Nemo re­cedat a Curia Regis sine remedio; But, if that should be allowed, which is pre­tended, and challenged by the House of Commons, as their Priviledge, if a Member of theirs be concerned, though a Man have received never so hard measure, though never so errone­ous and unjust a Judgement have been given against him in any of the Courts of Westminster Hall, (for there is the same reason for both, for Writs of Er­ror from a Court of Law, as from Ap­peals from a Court of Equity, if Privi­ledge of the Commons House, exempts from the one, it must exempt from the other) there is no help for him, he must sit down, and lay his hand upon his Mouth, and not once whisper, but must [Page 76] Recedere a Curia Regis and that the chief Court, the supreame Court, sine Remedio. So here is an absolute failer of Justice, which as Sir Edward Cook saith, the Law abhors.

And as it seemes to me, it is upon an irrational ground; For here is Privi­ledge of Parlament against the Parla­ment it self; which makes a Parlament Felo de se to give a Priviledge, which enervates it's Power, a Power which is proper and peculiar to Parlaments, the Dernier Ressort, by which it helps, when no other Court can help▪ This is ta­ken away, and cannot exert it self, when a Member of the House of Commons is concerned: Against the Rule of all Courts, for in other Courts as Chan­cery, Kings Bench, Exchequer, the Officers that belong to those Courts claime a Priviledge to be sued no where else, but no Priviledge to free them, that they shall not be sued in their own Courts: Now the House of Peers is a Court of Judicature, as it is a Part of the Parlament, Pars constituens of a Parlament, and the Members of the [Page 77] House of Commons have Priviledge, as they are Members of Parlament, and as their House is the other Pars consti­tuens of a Parlament, for both together are Partes constituentes Parliamentum, and both make but one Parlament, though they be two several constituting Parts. And it is not rational to think that either of those Parts can be enti­tuled to a Priviledge, which shall abridge the other Part from doeing those Functi­ons, which are proper and natural to it. As if the House of Peers should as­sume to themselves a Priviledge, that the House of Commons could not with­out their leave and consent first had, propose the Raising of Moneys by way of Tax or Subsidy: This is against the nature and constitution of our Parla­ments, and therefore it cannot be ima­gined, to be true, that such a Privi­ledge can belong to the Lords, by one that understands any thing of the Na­ture of Parlaments: And truely it is even as great an Absurdity to say, that the House of Commons hath a Privi­ledge to give a stopp to the Lords pro­ceeding [Page 78] in the hearing of a Cause, as a Court of Judicature, if one of their Members is concerned in it: For the hearing of Causes by way of Appeale or of Writ of Error, is as proper and as natural to the House of Lords, as a Bill of Subsidy to begin in the House of Commons, is proper to that House.

But I have heard it said, that this would be destructive to the House of Commons, if the Lords could compell their Members to appeare at their Barr, and attend their Causes there; and if they would not appear, commit them, as is the use of other Courts; For, say they, as they commit one, they may commit more, and even fetch them all out of the House, to leave none or not a number to attend the Service there. But first, this is a mischief so unlike ever to happen, that one need almost as little fear it, as the Skie falling to kill all the Larks, if it were so, that they should take upon them to commit those that would not appeare and an­swer; [Page 79] For it is not to be imagined, that so many would be concerned in Ap­peals or Writs of Error at one time, as that there would not be enough left to carry on the Business of the House, since at most perhaps two or three in a whole Session may be concerned.

And if so small a number should, for their particular occasions, which they cannot avoid, being sued by others, be kept for some few dayes from attend­ing the Publick Service, the Matter seems not so great, since all along this Parlament for twelve or thirteen years together, this House hath had the goodness to dispense still with the attendance of at least two hun­dred of their Members, who have remained at their several Homes, for their pleasure many, all for their private occasions, without coming at all to beare their parts of the Houses Service: This is more like to be an In­convenience to that Service, then if the Lords should commit two or three single Persons amongst them for not appear­ing [Page 80] upon Summons, when they are sued before them.

But none of this need be feared: For the House of Lords doth not pretend to a power of committing any Member of the House of Commons, if they will not appear, nor any Body else for not appearing, or not answering be­ing sued before them in a Civil Cause: If they will not appeare by themselves or by their Atturney, and put in their Answer, being lawfully Summoned, and having no lawful Excuse for not doeing what is required of them, and what they ought to do, but will stand out in contempt of their Jurisdiction, they will proceede to hear the Cause Ex parte, and determine it, as they did in the Case of the Deane and Chapter of St. Cedde in Lichfield, and the Prior of Newport-Pannel upon a Writt of Error 18. R. 2. n. 11, 12. &c. The Deane and Chapter had the Parlament before preferred a Petition, An̄re S ^r. tres redoute le Roi & a les nobles S ^rs. de cest Parlement, &c. complain­ing of a Judgement in the Kings [Page 81] Bench by which an Annuity of 20 Mark per ann. and an Arreare of an hundred, which they had recovered in the Com­mon Pleas, was judged against them in the Kings Bench, and had prayed a Scire facias for the Prior to appeare re­turnable this Parlament, which was granted: And the Prior now Solempni­ter vocatus, non venit, being solemnly called appeared not: Whereupon the Record saith, Decanus & Capitulum pe­tierunt Iudicium Parliamenti, & quod ob defaltam nunc Prioris procedatur ad examinationem Recordi & Processus prae­dicti Brevis de Errore, Quod in Parlia­mento concessum est. The Dean and Chapter demand Judgement, and that upon the Default of the Prior, they will goe on to examine the Business, which the Parlament granted. They do so, and then give Judgement for the Dean and Chapter.

And in truth there is all the Reason in the World it should be so, that a Man, who wilfully and contemptuously will refuse to appeare, and will not stand [Page 82] 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 [Page 83] 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 [Page 84] 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.