A treatise of the true and ancient jurisdiction of the House of Peers by Sir Robert Atkyns ...
         Atkyns, Robert, Sir, 1621-1709.
      
       
         
           1699
        
      
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             A treatise of the true and ancient jurisdiction of the House of Peers by Sir Robert Atkyns ...
             Atkyns, Robert, Sir, 1621-1709.
          
           [4], 36 p.
           
             [s.n.],
             London printed :
             MDCXCIX [1699]
          
           
             Reproduction of original in the Harvard Law School Library
          
        
      
    
     
       
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         eng
      
       
         
           England and Wales. -- Parliament. -- House of Lords.
           Courts -- Great Britain.
        
      
    
     
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           A
           TREATISE
           OF
           THE
           TRUE
           and
           ANCIENT
           JURISDICTION
           OF
           THE
           House
           of
           Peers
           .
        
         
           By
           Sir
           
             ROBERT
             ATKYNS
          
           ,
           Knight
           of
           the
           BATH
           .
        
         
           
             State
             super
             Semitas
             antiquas
             .
          
        
         
           LONDON
           :
           Printed
           in
           the
           Year
           MDCXCIX
           .
        
      
    
     
       
         
         
         
           To
           the
           Honourable
           The
           Knights
           ,
           Citizens
           ,
           and
           Burgesses
           of
           the
           House
           of
           Commons
           in
           Parliament
           Assembled
           .
           The
           Humble
           Petition
           of
           Sir
           
             Robert
             Atkyns
          
           Knight
           of
           the
           Bath
           ,
        
         
           SHEWETH
           ,
        
         
           THAT
           your
           Petitioner
           ,
           in
           the
           several
           Publick
           Employments
           he
           hath
           undergone
           ,
           hath
           had
           more
           than
           ordinary
           occasion
           of
           observing
           the
           encreasing
           Iurisdiction
           of
           the
           Courts
           of
           Equity
           in
           this
           Kingdom
           ,
           and
           how
           the
           Common-Law
           (
           the
           Birthright
           of
           every
           Englishman
           )
           hath
           been
           ,
           and
           still
           is
           every
           day
           more
           and
           more
           invaded
           by
           it
           .
        
         
           He
           hath
           taken
           the
           pains
           to
           collect
           many
           of
           those
           continual
           complaints
           from
           time
           to
           time
           made
           by
           the
           Commons
           of
           England
           in
           Parliament
           ,
           against
           the
           Exercise
           of
           that
           New
           Iurisdiction
           in
           the
           very
           beginning
           of
           it
           .
        
         
           And
           your
           Petitioner
           hath
           great
           reason
           also
           ,
           to
           take
           notice
           of
           the
           Exercise
           of
           the
           Iurisdiction
           of
           Appeals
           from
           the
           Proceedings
           of
           those
           Courts
           :
           And
           humbly
           presents
           this
           Honourable
           House
           with
           what
           he
           hath
           collected
           ,
           in
           order
           to
           your
           Service
           therein
           .
        
         
           Your
           Petitioner
           craves
           leave
           to
           make
           use
           of
           that
           freedom
           which
           belongs
           to
           every
           Englishman
           ,
           to
           tender
           you
           a
           Complaint
           against
           so
           publick
           ●nd
           spreading
           a
           Grievance
           .
        
         
           He
           doth
           not
           Appeal
           ,
           nor
           complain
           of
           any
           thing
           that
           meerly
           concerns
           himself
           :
           He
           only
           subjoins
           a
           Case
           wherein
           himself
           was
           a
           Party
           ,
           meerly
           as
           an
           Instance
           of
           the
           large
           Exercise
           of
           a
           power
           
           against
           the
           known
           and
           fundamental
           Rules
           of
           the
           Common-Law
           ,
           as
           he
           conceives
           .
        
         
           That
           Case
           of
           your
           Petitioner
           happened
           very
           lately
           in
           the
           Chancery
           ;
           But
           it
           is
           generally
           known
           in
           the
           Courts
           of
           Westminster-Hall
           ,
           That
           as
           your
           Petitioner
           had
           occasion
           ,
           he
           hath
           for
           many
           years
           frequently
           and
           publickly
           in
           his
           Station
           enveigh'd
           against
           the
           Encroachments
           of
           Courts
           of
           Equity
           ,
           and
           that
           late
           course
           of
           Appeals
           .
        
         
           But
           on
           the
           behalf
           of
           the
           whole
           Kingdom
           he
           humbly
           offers
           his
           Service
           ,
           and
           lays
           before
           You
           what
           he
           hath
           observed
           and
           collected
           upon
           this
           Subject
           ,
           after
           near
           Threescore
           years
           Experience
           .
        
         
           And
           submits
           All
           to
           your
           Wisdom
           ,
           to
           proceed
           in
           providing
           Iust
           Remedies
           .
        
         
           
             And
             your
             Petitioner
             shall
             ever
             Pray
             ,
          
           &c.
           
           
             Robert
             Atkyns
             .
          
        
      
       
         
         
           OF
           THE
           Supreme
           Jurisdiction
           IN
           THE
           KINGDOM
           OF
           ENGLAND
           .
        
         
           THE
           House
           of
           Lords
           have
           a
           very
           Ancient
           and
           Transcendent
           Jurisdiction
           ;
           but
           it
           is
           not
           Absolute
           nor
           Arbitrary
           in
           the
           Exercise
           of
           it
           ,
           nor
           Universal
           ;
           and
           in
           all
           Cases
           it
           is
           a
           Power
           Limited
           by
           Law
           ,
           and
           must
           be
           Exercis'd
           according
           to
           the
           known
           Rules
           of
           Law.
           
        
         
           And
           though
           the
           Peers
           are
           very
           Great
           and
           Honourable
           ,
           yet
           they
           are
           but
           Men
           ,
           and
           not
           Infallible
           ;
           and
           therefore
           a
           Writ
           of
           Error
           lies
           upon
           their
           Judgments
           :
           And
           the
           Law
           allows
           that
           liberty
           to
           the
           meanest
           Subject
           ,
           to
           demur
           to
           the
           Jurisdiction
           of
           any
           Court
           whatsoever
           ,
           even
           that
           of
           the
           House
           of
           Lords
           .
        
         
           Let
           us
           Enquire
           into
           their
           Jurisdiction
           ,
           when
           it
           began
           ,
           and
           in
           what
           Cases
           they
           have
           a
           Right
           to
           it
           .
        
         
           An
           Eminent
           Author
           ,
           suppos'd
           to
           be
           the
           Late
           Lord
           Hollis
           ,
           upon
           occasion
           of
           the
           great
           Cause
           between
           Skinner
           and
           the
           East-India-Company
           ,
           (
           so
           much
           disputed
           between
           the
           Two
           Houses
           of
           Parliament
           )
           hath
           in
           Print
           Asserted
           .
        
         
           That
           the
           House
           of
           Peers
           hath
           their
           Right
           of
           Judicature
           from
           the
           beginning
           of
           the
           Nation
           ,
           Page
           134.
           
        
         
           He
           affirms
           it
           is
           a
           Power
           Lodged
           in
           them
           by
           the
           very
           Frame
           and
           Constitution
           of
           the
           Government
           .
        
         
         
           As
           to
           the
           Extent
           of
           their
           Jurisdiction
           ,
           Page
           213.
           he
           affirms
           ,
           That
           they
           have
           an
           undoubted
           Right
           to
           an
           Universal
           and
           Unlimited
           Power
           of
           taking
           Conusance
           of
           all
           manner
           of
           Causes
           of
           what
           nature
           soever
           ;
           and
           of
           Judging
           and
           Determining
           of
           them
           ,
           if
           no
           particular
           Law
           do
           otherwise
           dispose
           of
           them
           .
           
             
               Nec
               Metas
               rerum
               ,
               nec
               tempora
               ponit
               .
            
          
        
         
           The
           first
           of
           these
           seems
           to
           Entrench
           very
           far
           upon
           the
           Regal
           Power
           .
           He
           not
           only
           makes
           their
           Power
           equal
           in
           time
           to
           it
           ,
           owning
           no
           Derivation
           from
           it
           ,
           but
           in
           effect
           Claims
           a
           Co-ordination
           with
           it
           :
           But
           the
           Claim
           of
           such
           an
           Independent
           and
           Original
           Power
           ,
           sounds
           like
           that
           which
           is
           taken
           to
           be
           a
           peculiar
           of
           the
           Supreme
           Power
           ,
           as
           to
           the
           Administration
           of
           it
           ,
           viz.
           In
           all
           Causes
           ,
           and
           over
           all
           Persons
           ,
           &c.
           
           Nay
           ,
           he
           holds
           that
           the
           Peerage
           sets
           bounds
           both
           to
           Power
           and
           Liberty
           ,
           Page
           71.
           as
           this
           Author
           maintains
           it
           .
           It
           may
           easily
           be
           understood
           (
           by
           what
           follows
           )
           what
           is
           meant
           there
           by
           (
           Power
           )
           viz.
           The
           Regal
           Administration
           of
           it
           .
           Whereas
           the
           Common-Law
           of
           England
           ,
           and
           all
           the
           Authors
           and
           Writers
           of
           it
           ,
           do
           with
           one
           Consent
           acknowledge
           ,
           Jurisdictions
           within
           this
           Realm
           are
           deriv'd
           from
           the
           Crown
           .
           And
           that
           no
           Court
           hath
           an
           Absolute
           and
           Unlimited
           Power
           ,
           save
           the
           Supreme
           Court
           of
           the
           Nation
           ,
           consisting
           of
           the
           King
           ,
           Lords
           ,
           and
           Commons
           Assembled
           in
           Parliament
           ,
           and
           in
           them
           indeed
           is
           the
           True
           Supreme
           Power
           under
           God.
           But
           that
           ,
           according
           to
           the
           different
           nature
           of
           Causes
           ,
           some
           are
           distributed
           into
           one
           Court
           ,
           and
           some
           into
           another
           :
           But
           not
           any
           one
           Court
           hath
           Jurisdiction
           in
           all
           Causes
           ,
           save
           that
           of
           the
           Parliament
           .
        
         
           And
           that
           all
           Courts
           must
           proceed
           by
           some
           certain
           known
           Rules
           ,
           that
           is
           ,
           the
           Courts
           of
           the
           Common-Law
           ,
           
             Secundum
             legem
             &
             consuetudinem
             Angliae
          
           ;
           And
           Courts
           of
           Equity
           ,
           according
           to
           the
           ancient
           and
           constant
           Precedents
           ,
           and
           Usage
           .
        
         
           But
           this
           Court
           of
           Peers
           (
           for
           I
           confine
           my self
           still
           to
           what
           is
           asserted
           by
           this
           Noble
           Author
           )
           doth
           wholly
           exclude
           the
           King
           ,
           and
           ingross
           all
           to
           themselves
           ?
           No
           ,
           by
           no
           means
           .
           He
           allows
           the
           King
           a
           single
           Voice
           among
           them
           ,
           Page
           145.
           as
           a
           Chief
           Justice
           in
           another
           Court
           ,
           whose
           Voice
           or
           Opinion
           hath
           no
           more
           force
           than
           that
           of
           a
           Puisny
           Judge
           .
           No
           ,
           not
           so
           much
           as
           a
           Casting-Voice
           ,
           where
           they
           are
           
             equally
             divided
          
           .
        
         
           I
           shall
           offer
           to
           Consideration
           upon
           what
           grounds
           and
           proofs
           this
           Noble
           Author
           doth
           Entitle
           the
           House
           of
           Peers
           to
           this
           Unlimited
           Jurisdiction
           .
        
         
         
           He
           hath
           been
           led
           into
           these
           Opinions
           ,
           I
           fear
           ,
           by
           some
           late
           over-zealous
           and
           injudicious
           Writers
           ,
           who
           ,
           out
           of
           a
           too
           fond
           and
           forward
           Zeal
           to
           depress
           the
           House
           of
           Commons
           ,
           in
           the
           late
           Exorbitant
           Power
           which
           they
           took
           upon
           them
           in
           the
           late
           Times
           ,
           in
           order
           (
           I
           say
           )
           to
           the
           decrying
           of
           their
           Usurped
           Power
           ;
           those
           Writers
           thought
           they
           could
           never
           sufficiently
           Exalt
           the
           Power
           of
           the
           Lords
           ,
           to
           over-ballance
           that
           of
           the
           Commons
           .
        
         
           And
           it
           may
           perhaps
           be
           useful
           (
           by
           the
           way
           )
           to
           take
           notice
           of
           the
           strange
           Revolution
           that
           in
           the
           late
           Times
           happened
           to
           the
           Government
           of
           this
           Nation
           .
        
         
           1.
           
           Our
           Kings
           began
           first
           to
           strain
           Prerogative
           too
           high
           upon
           the
           Subject
           .
        
         
           2.
           
           Both
           the
           Houses
           of
           Parliament
           thereupon
           join'd
           together
           in
           Usurping
           upon
           the
           Regal
           Power
           .
        
         
           3.
           
           After
           some
           short
           time
           the
           late
           House
           of
           Commons
           ,
           by
           the
           help
           of
           their
           Army
           ,
           laid
           aside
           the
           House
           of
           Lords
           .
           
             
               (
               Sic
               cum
               sole
               ,
               perit
               Syderibus
               decor
               .
               )
            
          
        
         
           4.
           
           After
           some
           time
           again
           a
           lesser
           part
           of
           the
           House
           of
           Commons
           exclude
           the
           greater
           part
           .
        
         
           5.
           
           And
           these
           their
           own
           Army
           over-top
           ,
           as
           being
           but
           the
           Fragment
           of
           that
           House
           .
        
         
           
             1.
             —
             Sic
             Medus
             ademit
          
           
             2.
             
             Assyrio
             :
             Medóque
             tulit
             moderamina
             ,
             Perses
             ▪
          
           
             3.
             
             Persen
             subjecit
             Macedo
             ,
             Cessurus
             &
             Ipse
          
           
             4.
             
             Romano
             .
          
        
         
           These
           Modern
           Writers
           ,
           who
           are
           such
           earnest
           Advocates
           for
           the
           House
           of
           Peers
           ,
           ascribe
           to
           the
           Lords
           all
           that
           vast
           Power
           and
           Jurisdiction
           ,
           which
           they
           read
           in
           our
           Ancient
           Histories
           to
           be
           exercised
           by
           the
           National
           Assemblies
           in
           the
           Times
           of
           the
           old
           
             British
             ,
             Saxon
             ,
             Danish
          
           ,
           and
           Norman
           Kings
           .
        
         
           Thus
           Writes
           Mr.
           
             William
             Pryn
          
           ,
           in
           his
           Plea
           for
           the
           Lords
           and
           House
           of
           Peers
           ,
           Page
           164.
           
           That
           the
           House
           of
           Peers
           had
           this
           Sovereign
           Jurisdiction
           vested
           in
           it
           both
           in
           the
           Times
           of
           the
           
             Brittish
             ,
             Saxon
             ,
             Danish
          
           ,
           and
           Norman
           Kings
           ;
           and
           other
           Modern
           Writers
           Chyme
           in
           with
           him
           .
        
         
           Whereas
           it
           is
           most
           Evident
           by
           our
           more
           Ancient
           and
           most
           Judicious
           Authors
           ,
           and
           Antiquaries
           ,
           That
           the
           great
           Assemblies
           which
           were
           convened
           in
           Ancient
           Times
           here
           in
           England
           ,
           were
           quite
           of
           another
           Constitution
           and
           Complexion
           from
           the
           now
           Two
           Houses
           of
           Parliament
           ,
           and
           had
           no
           resemblance
           to
           them
           .
        
         
         
           It
           was
           in
           those
           Ancient
           Times
           but
           one
           great
           and
           numerous
           Assembly
           that
           met
           :
           Not
           distinguish'd
           either
           by
           those
           several
           Terms
           of
           Lords
           and
           Commons
           ;
           or
           by
           Two
           Houses
           ,
           the
           Upper
           and
           the
           Lower
           ,
           nor
           by
           any
           other
           dividing
           Titles
           .
        
         
           Those
           great
           Assemblies
           had
           under
           our
           several
           Kings
           ,
           and
           together
           with
           them
           ,
           the
           whole
           Legislative
           ,
           and
           Judicial
           Power
           ,
           with
           little
           distinction
           to
           be
           found
           in
           the
           Exercise
           of
           those
           Two
           mighty
           Powers
           .
           The
           Members
           of
           them
           were
           not
           qualified
           neither
           by
           any
           Title
           of
           Honour
           ,
           (
           though
           there
           might
           be
           honorary
           Titles
           in
           those
           Times
           )
           but
           they
           were
           qualified
           and
           entitled
           to
           their
           Power
           by
           their
           Possessions
           and
           Tenures
           ,
           and
           some
           few
           by
           certain
           great
           Offices
           .
        
         
           This
           great
           Assembly
           could
           not
           properly
           be
           called
           The
           Representative
           of
           the
           Nation
           ,
           (
           for
           they
           came
           not
           all
           to
           these
           Assemblies
           as
           chosen
           by
           the
           People
           )
           but
           most
           of
           them
           came
           thither
           in
           their
           own
           Personal
           inherent
           Right
           ,
           and
           might
           more
           justly
           be
           call'd
           ,
           the
           Principals
           of
           the
           Nation
           ,
           and
           look'd
           upon
           as
           the
           true
           Owners
           and
           Proprietors
           of
           the
           Nation
           ,
           accounting
           the
           Land-Interest
           to
           be
           the
           main
           ,
           and
           the
           true
           ,
           and
           stable
           Interest
           ,
           and
           might
           therefore
           truly
           be
           termed
           ,
           The
           Nation
           it self
           Assembled
           ,
           or
           the
           People
           Assembled
           .
        
         
           It
           was
           the
           Land-Interest
           then
           that
           gave
           both
           Honour
           and
           Power
           .
           
             Dat
             Census
             Honores
          
           ;
           yet
           it
           cannot
           be
           denied
           ,
           but
           that
           the
           Ancient
           Boroughs
           did
           Elect
           their
           Representatives
           ,
           even
           in
           the
           most
           Ancient
           Times
           ,
           who
           were
           at
           first
           a
           small
           part
           of
           these
           great
           Assemblies
           ;
           though
           now
           much
           more
           numerous
           ,
           and
           weigh
           down
           the
           ballance
           ;
           and
           this
           is
           proved
           to
           have
           been
           long
           before
           the
           Time
           of
           King
           Henry
           the
           Third
           ,
           though
           those
           late
           Writers
           date
           it
           from
           that
           time
           only
           .
        
         
           It
           would
           be
           folly
           to
           undertake
           to
           give
           any
           clear
           or
           large
           account
           of
           the
           Supreme
           Judicatures
           that
           were
           in
           the
           Times
           of
           the
           Ancient
           
             Brittons
             ,
             Saxons
          
           ,
           or
           Danes
           ,
           which
           many
           of
           our
           late
           Writers
           pretend
           to
           do
           .
        
         
           For
           Tacitus
           in
           the
           Life
           of
           Agricola
           tells
           us
           of
           the
           old
           Brittons
           ,
           that
           at
           the
           time
           of
           the
           coming
           of
           the
           Romans
           into
           this
           Land
           ,
           they
           did
           not
           so
           much
           as
           
             in
             Commune
             Consulere
          
           ;
           that
           is
           ,
           they
           had
           no
           Common-Council
           ,
           nor
           did
           they
           meet
           together
           to
           Consult
           how
           to
           repel
           their
           common
           danger
           ;
           but
           were
           divided
           into
           a
           multitude
           of
           Feuds
           and
           Factions
           ,
           under
           their
           Reguli
           or
           pretty
           Princes
           .
        
         
           
             Rarus
             duabus
             tribusve
             Civitatibus
             ad
             propulsandum
             Commune
             periculum
             Conventus
             .
          
        
         
         
           After
           the
           Britons
           were
           wholly
           subdued
           by
           the
           Romans
           ,
           they
           receiv'd
           Law
           and
           Magistracy
           from
           their
           Conquerors
           .
           
             Net
             legibus
             suis
             patriis
             uti
             permissi
             sunt
          
           (
           though
           it
           is
           impli'd
           ,
           that
           they
           had
           Laws
           of
           their
           own
           )
           
             Sed
             Magistratus
             à
             populo
             Romano
             cum
             Imperio
             &
             securibus
             missi
             ,
             qui
             jus
             dicerent
             ,
          
           says
           Learned
           Cambden
           in
           his
           
             Britannia
             Page
          
           48.
           for
           which
           he
           cites
           his
           Authors
           .
        
         
           The
           Saxons
           ,
           who
           succeeded
           the
           Romans
           ,
           divided
           the
           Nation
           into
           Seven
           parts
           ,
           and
           Constituted
           the
           Heptarchy
           .
           It
           were
           in
           vain
           to
           search
           for
           an
           House
           of
           Lords
           ,
           or
           any
           one
           Supreme
           Judicature
           all
           that
           time
           for
           all
           the
           Nation
           .
        
         
           The
           Supreme
           Judicature
           in
           those
           times
           must
           be
           Seven
           in
           number
           ,
           if
           any
           ;
           for
           the
           Seven
           were
           Independent
           one
           of
           the
           other
           .
        
         
           Most
           part
           of
           the
           State
           of
           the
           Saxon
           Government
           is
           so
           obscure
           (
           says
           our
           great
           Selden
           )
           that
           we
           can
           see
           only
           Steps
           or
           torn
           Relicks
           of
           them
           ,
           rather
           than
           so
           much
           as
           might
           give
           full
           satisfaction
           .
        
         
           If
           there
           be
           any
           thing
           in
           their
           times
           to
           our
           purpose
           ,
           (
           that
           is
           ,
           concerning
           one
           Supreme
           Court
           of
           Judicature
           ,
           to
           which
           the
           whole
           Nation
           was
           subject
           )
           it
           must
           fall
           towards
           the
           latter
           end
           of
           the
           Saxon
           Times
           ;
           After
           Egbert
           ,
           King
           of
           the
           West-Saxons
           ,
           had
           reduced
           the
           other
           parts
           of
           the
           Heptarchy
           under
           his
           Obedience
           ;
           when
           they
           did
           
             in
             unum
             coalescere
          
           ,
           and
           were
           all
           seven
           melted
           down
           into
           one
           Mass.
           
        
         
           And
           after
           the
           several
           Governments
           and
           parts
           were
           united
           ,
           though
           the
           Government
           was
           but
           One
           ,
           yet
           there
           were
           Three
           several
           and
           distinct
           Laws
           remain'd
           in
           force
           ,
           which
           had
           their
           several
           Limits
           and
           Precincts
           .
           See
           
             Lambert
             ,
             De
             priscis
             Anglorum
             Legibus
             ,
             Page
          
           180.
           
        
         
           And
           these
           were
           not
           meerly
           some
           certain
           different
           Customs
           (
           for
           so
           it
           is
           to
           this
           day
           in
           our
           several
           Counties
           ;
           as
           of
           Gavelkind
           ,
           and
           Burrough
           -
           English
           ,
           &c.
           but
           they
           were
           under
           Three
           distinct
           Systems
           or
           Bodies
           of
           Laws
           ;
           so
           that
           it
           could
           not
           be
           any
           way
           practicable
           during
           that
           time
           ,
           to
           have
           any
           one
           great
           Court
           of
           Judicature
           for
           the
           whole
           Land.
           
        
         
           By
           which
           of
           those
           Three
           Laws
           should
           that
           great
           Judicature
           have
           proceeded
           ?
        
         
           But
           after
           some
           time
           those
           Three
           different
           Bodies
           of
           Laws
           were
           found
           incompatible
           with
           one
           entire
           Government
           ,
           as
           it
           came
           to
           be
           at
           last
           ;
           and
           therefore
           King
           Edgar
           (
           a
           Saxon
           King
           )
           out
           of
           these
           Three
           Bodies
           of
           Laws
           ,
           by
           the
           Counsel
           of
           his
           Wise
           men
           ,
           Compos'd
           one
           great
           Body
           of
           Law
           to
           be
           observ'd
           by
           the
           whole
           Nation
           of
           England
           .
           And
           Edward
           the
           Confessor
           gave
           new
           Vigour
           and
           Life
           of
           this
           new
           Body
           ,
           which
           was
           afterwards
           extracted
           out
           of
           those
           Three
           Old
           Bodies
           of
           Laws
           ,
           and
           are
           indeed
           the
           Fountain
           and
           
             Materia
             prima
          
           of
           that
           which
           we
           now
           call
           ,
           
             The
             Common-Law
             of
             England
          
           .
        
         
         
           From
           these
           we
           derive
           our
           Trials
           by
           Twelve
           Men
           ,
           our
           levying
           of
           Fines
           of
           Lands
           ,
           and
           the
           Offices
           of
           Sheriff
           ,
           Coroner
           ,
           Constable
           ,
           and
           many
           more
           of
           our
           Laws
           ,
           Customs
           ,
           and
           Offices
           continued
           amongst
           us
           ever
           since
           unto
           this
           day
           .
        
         
           And
           these
           are
           those
           good
           Old
           Laws
           of
           King
           Edward
           the
           Confessor
           ,
           which
           William
           the
           First
           (
           who
           is
           stiled
           the
           Conqueror
           )
           did
           more
           than
           once
           swear
           to
           govern
           by
           ;
           which
           proves
           him
           to
           be
           indeed
           
             no
             Conqueror
          
           .
           And
           these
           make
           up
           the
           greatest
           part
           of
           Our
           
             Magna
             Charta
          
           .
        
         
           I
           shall
           mention
           some
           few
           Precedents
           ,
           in
           the
           time
           of
           the
           Saxons
           ,
           of
           their
           Supreme
           Judicature
           ,
           and
           examine
           what
           resemblance
           they
           bear
           with
           that
           used
           at
           present
           amongst
           us
           .
        
         
           And
           then
           I
           shall
           give
           some
           account
           of
           the
           Supreme
           Court
           of
           Judicature
           in
           the
           beginning
           of
           the
           Norman
           Government
           during
           the
           time
           of
           their
           first
           Six
           or
           Seven
           Kings
           ;
           and
           by
           the
           way
           still
           examine
           ,
           how
           justly
           any
           Court
           now
           in
           being
           ,
           can
           be
           said
           to
           derive
           their
           Power
           from
           them
           ,
           and
           to
           Sit
           and
           succeed
           them
           in
           their
           Seat.
           
        
         
           And
           in
           the
           last
           place
           ,
           I
           shall
           make
           my
           Conjecture
           ,
           how
           and
           at
           what
           time
           the
           
             Magnum
             Concilium
             in
             Parliamento
          
           ,
           or
           the
           House
           of
           Peers
           ,
           first
           began
           to
           exercise
           the
           Supreme
           Judicature
           .
        
         
           And
           while
           I
           run
           through
           the
           Precedents
           ,
           and
           cite
           my
           Authors
           ,
           whoever
           reads
           them
           ,
           may
           at
           the
           same
           instant
           make
           their
           Observation
           of
           these
           particulars
           ensuing
           ,
           which
           I
           conceive
           will
           evidently
           result
           and
           arise
           from
           them
           .
        
         
           1.
           
           First
           ,
           That
           the
           Supreme
           Power
           of
           Legislature
           ,
           and
           the
           Supreme
           Power
           of
           Judicature
           (
           which
           yet
           are
           distinct
           things
           in
           themselves
           ;
           for
           it
           is
           one
           thing
           ,
           
             jus
             dare
          
           ,
           and
           another
           thing
           ,
           
             jus
             dicere
          
           )
           both
           these
           high
           Powers
           (
           I
           say
           )
           under
           our
           several
           Ancient
           Kings
           ,
           resided
           in
           one
           and
           the
           same
           Assembly
           ,
           consistting
           of
           the
           very
           same
           Persons
           ,
           but
           with
           different
           methods
           in
           their
           way
           of
           proceeding
           ,
           that
           is
           ,
           whoever
           had
           an
           hand
           in
           the
           Legislature
           ,
           was
           not
           excluded
           from
           the
           Judicature
           ,
           wherein
           it
           differs
           from
           our
           present
           Constitution
           ;
           which
           is
           ,
           that
           the
           House
           of
           Peers
           ,
           who
           have
           but
           a
           share
           in
           the
           Legislature
           ,
           yet
           now
           claim
           to
           themselves
           the
           sole
           power
           of
           Judicature
           as
           the
           last
           resort
           .
        
         
           2.
           
           Secondly
           ,
           Another
           thing
           that
           I
           shall
           observe
           out
           of
           the
           several
           Precedents
           and
           Authors
           that
           I
           shall
           mention
           ,
           is
           this
           ,
           That
           the
           great
           Convention
           and
           Assembly
           that
           anciently
           had
           these
           Two
           great
           Powers
           of
           Legislature
           and
           Judicature
           ,
           were
           but
           one
           entire
           great
           Body
           and
           Assembly
           ,
           not
           divided
           into
           two
           or
           more
           parts
           ,
           nor
           distinguish'd
           (
           as
           now
           )
           into
           Two
           Houses
           ,
           or
           by
           the
           names
           of
           Lords
           and
           Commons
           ;
           but
           these
           Powers
           resided
           equally
           in
           them
           ,
           
             Tota
             in
             Toto
          
           .
        
         
         
           3.
           
           Thirdly
           ,
           That
           all
           ,
           or
           the
           far
           greatest
           part
           of
           the
           Members
           of
           these
           great
           Assemblies
           ,
           came
           not
           thither
           by
           the
           choice
           ,
           or
           at
           the
           will
           and
           pleasure
           of
           the
           Prince
           ,
           as
           he
           thought
           fit
           to
           single
           them
           out
           by
           name
           ,
           (
           as
           Peers
           are
           made
           usually
           )
           nor
           did
           they
           all
           come
           by
           Election
           or
           Office
           ,
           though
           there
           were
           some
           of
           both
           those
           sorts
           ,
           viz.
           The
           Bishops
           ,
           and
           the
           Burgesses
           of
           the
           Burroughs
           :
           but
           the
           far
           greatest
           part
           came
           by
           a
           certain
           Right
           they
           had
           to
           meet
           in
           those
           Assemblies
           ;
           but
           what
           gave
           them
           their
           Right
           ,
           or
           qualification
           ,
           or
           capacity
           ,
           so
           to
           meet
           ,
           doth
           not
           so
           clearly
           appear
           to
           an
           hasty
           Reader
           of
           our
           History
           ,
           and
           Antiquities
           .
        
         
           It
           is
           evident
           ,
           it
           was
           not
           any
           meer
           Title
           of
           Honour
           or
           Dignity
           ;
           for
           Anciently
           in
           England
           there
           were
           not
           any
           Dignities
           but
           what
           were
           also
           accompanied
           with
           Offices
           ,
           and
           ceased
           with
           the
           Office.
           
        
         
           But
           it
           did
           proceed
           from
           their
           Lands
           and
           Posessions
           :
           which
           as
           they
           gave
           them
           Honour
           ,
           so
           they
           gave
           them
           Power
           and
           Authority
           in
           those
           Ancient
           Times
           .
           And
           this
           they
           learnt
           from
           the
           Romans
           ,
           whose
           Example
           was
           followed
           herein
           by
           most
           of
           those
           Nations
           that
           had
           fallen
           under
           their
           Conquest
           .
        
         
           4.
           
           Fourthly
           ,
           These
           Assemblies
           were
           very
           great
           and
           numerous
           ,
           far
           exceeding
           in
           number
           both
           Houses
           of
           Parliament
           at
           this
           day
           (
           were
           they
           both
           put
           together
           )
           so
           that
           they
           cannot
           with
           any
           colour
           of
           Reason
           be
           thought
           an
           Assembly
           of
           Lords
           only
           ,
           (
           as
           our
           Novel
           Writers
           would
           impose
           upon
           us
           ;
           )
           for
           it
           is
           absurd
           to
           think
           that
           so
           great
           a
           number
           should
           be
           all
           Lords
           ,
           for
           then
           there
           would
           be
           none
           left
           in
           the
           Nation
           to
           bear
           the
           Character
           of
           Commons
           ,
           save
           only
           the
           Plebs
           ,
           or
           
             Faeces
             Populi
          
           :
           And
           the
           Title
           or
           Distinction
           of
           Lords
           cannot
           subsist
           ,
           without
           a
           body
           of
           some
           Inferiors
           ,
           from
           whom
           the
           Lords
           may
           be
           distinguish'd
           .
           
             
               Tolle
               Relatum
               ,
               &
               tollis
               Correlatum
               .
            
          
        
         
           5.
           
           Fifthly
           ,
           Though
           the
           Freeholders
           of
           the
           several
           Counties
           did
           not
           then
           (
           as
           now
           )
           meet
           in
           those
           Assemblies
           by
           their
           Representatives
           duly
           chosen
           ,
           so
           that
           any
           Assembly
           could
           properly
           be
           said
           to
           be
           the
           Representative
           of
           all
           the
           Commons
           of
           England
           ,
           (
           which
           is
           much
           insisted
           on
           by
           our
           new
           fort
           of
           Authors
           ,
           who
           would
           decry
           and
           depress
           the
           House
           of
           Commons
           ,
           as
           being
           but
           of
           yesterday
           ,
           in
           comparison
           with
           the
           Antiquity
           of
           the
           House
           of
           Lords
           ;
           that
           is
           ,
           but
           from
           the
           Nine
           and
           Fortieth
           year
           of
           King
           Henry
           the
           Third
           ;
           whereas
           the
           Lords
           have
           been
           (
           as
           they
           affirm
           )
           from
           time
           immemorial
           ,
           and
           co-aeval
           with
           the
           Nation
           it self
           ;
           yet
           (
           which
           is
           more
           in
           Vindication
           of
           the
           Antiquity
           of
           the
           Commons
           in
           Parliament
           )
           it
           will
           appear
           ,
           that
           the
           Freeholders
           generally
           met
           there
           themselves
           ,
           (
           in
           the
           great
           Assemblies
           then
           used
           )
           in
           their
           own
           proper
           persons
           ,
           undistinguish'd
           by
           any
           such
           Terms
           of
           Lords
           and
           Commons
           and
           all
           were
           upon
           the
           same
           level
           .
        
         
         
           A
           Representative
           is
           but
           of
           the
           Nature
           of
           a
           Deputy
           ,
           or
           Delegate
           ,
           to
           supply
           the
           place
           of
           one
           that
           is
           absent
           ;
           such
           as
           in
           the
           House
           of
           Lords
           they
           call
           Proxies
           ,
           (
           who
           sometimes
           have
           been
           such
           as
           were
           no
           Members
           of
           that
           House
           )
           and
           such
           as
           in
           the
           Convocation
           of
           the
           Clergy
           they
           call'd
           
             procuratores
             Cleri
          
           .
        
         
           But
           the
           great
           Freeholders
           ,
           as
           being
           the
           Principals
           (
           rightly
           called
           )
           may
           more
           properly
           ,
           and
           in
           a
           true
           genuine
           sense
           be
           stiled
           ,
           
             The
             National
             Assembly
          
           .
           Those
           met
           in
           their
           own
           proper
           personal
           Capacity
           ;
           for
           the
           Land-Interest
           in
           the
           hands
           of
           the
           true
           Owner
           (
           the
           Freeholder
           )
           is
           the
           only
           true
           ,
           stable
           ,
           permanent
           ,
           fixed
           Interest
           of
           the
           Nation
           .
           The
           Farmers
           and
           Copy-holders
           were
           at
           first
           ,
           and
           in
           Ancient
           Times
           look'd
           upon
           ,
           and
           accounted
           ,
           but
           as
           Servants
           and
           Dependants
           upon
           the
           Freeholders
           ,
           and
           little
           regarded
           by
           the
           Common-Law
           .
           And
           for
           those
           that
           followed
           Merchandize
           ,
           and
           Trade
           ,
           though
           they
           ever
           sent
           to
           these
           great
           Assemblies
           by
           Election
           ,
           (
           the
           Manufacture
           of
           Woollen
           Cloth
           greatly
           flourishing
           in
           the
           Reigns
           of
           King
           Henry
           the
           Second
           ,
           and
           King
           Richard
           the
           First
           ,
           which
           gave
           occasion
           to
           those
           Ancient
           Guilds
           or
           Societies
           that
           were
           setled
           in
           
             Lincoln
             ,
             York
             ,
             Oxford
          
           ,
           and
           other
           Cities
           ,
           and
           Ancient
           Burroughs
           in
           England
           ;
           which
           Trade
           was
           wholly
           lost
           in
           the
           troublesome
           times
           of
           King
           
             Iohn
             ,
             Henry
          
           the
           
             Third
             ,
             Edward
          
           the
           First
           ,
           and
           Edward
           the
           Second
           :
           And
           then
           our
           Trade
           ran
           in
           Woolls
           ,
           Wooll-fels
           ,
           and
           Leather
           ,
           carried
           out
           in
           Specie
           ,
           till
           recover'd
           again
           by
           the
           peaceable
           times
           of
           King
           Edward
           the
           Third
           ,
           as
           the
           most
           Learned
           in
           the
           Law
           ,
           the
           late
           Chief
           Justice
           Hales
           does
           assert
           in
           his
           
             Origination
             of
             Mankind
          
           ;
           )
           yet
           those
           Ancient
           Burroughs
           were
           not
           then
           so
           numerous
           in
           those
           Elder
           times
           ,
           nor
           were
           the
           Traders
           then
           in
           so
           great
           Esteem
           ,
           as
           having
           to
           do
           in
           Moveables
           only
           ,
           and
           a
           transient
           Interest
           ;
           and
           as
           we
           use
           to
           say
           ,
           
             Here
             to
             day
             ,
             and
             gone
             to
             morrow
             ,
          
           and
           were
           therefore
           of
           an
           Inferior
           account
           ,
           and
           made
           no
           great
           Figure
           .
           And
           it
           was
           then
           a
           Legal
           Disparagement
           for
           the
           Guardian
           in
           Chivalry
           to
           marry
           the
           Ward
           ,
           being
           the
           Heir
           of
           a
           Freeholder
           that
           held
           by
           Knights's
           Service
           to
           the
           Daughter
           of
           the
           Burgess
           of
           a
           Burrough
           .
        
         
           6.
           
           Sixthly
           ,
           The
           last
           Observation
           shall
           be
           this
           ,
           That
           the
           Freeholders
           encreasing
           at
           last
           ,
           in
           their
           number
           ,
           by
           the
           sub-dividing
           of
           their
           posessions
           and
           tenures
           ,
           and
           thereupon
           growing
           seditious
           and
           tumultuous
           ,
           and
           an
           unwieldly
           Body
           ,
           and
           less
           valuable
           and
           venerable
           in
           their
           Individuals
           and
           particulars
           ,
           
             Mole
             ruebat
             suâ
          
           ,
           they
           came
           to
           be
           divided
           ,
           and
           the
           greatest
           part
           of
           them
           at
           last
           discontinued
           their
           coming
           to
           these
           Assemblies
           ,
           and
           so
           they
           broke
           in
           two
           ,
           and
           fell
           into
           two
           Houses
           ,
           and
           their
           Powers
           became
           parted
           between
           them
           ;
           and
           one
           part
           assum'd
           or
           had
           
           assign'd
           to
           them
           ,
           some
           of
           the
           Powers
           ,
           and
           the
           other
           part
           what
           was
           left
           :
           
             Cúm
             quercus
             decidit
             ,
             unusquísque
             ligna
             colligit
             .
          
           Yet
           there
           is
           reason
           to
           think
           that
           it
           was
           thus
           distributed
           and
           determin'd
           by
           Agreement
           in
           a
           National
           Assembly
           .
        
         
           These
           Observations
           and
           Conclusions
           I
           have
           thought
           fit
           and
           proper
           ,
           to
           propose
           before
           I
           peruse
           the
           Precedents
           ,
           and
           cite
           my
           Authors
           ;
           That
           the
           Reader
           may
           take
           notice
           ,
           by
           the
           way
           ,
           upon
           the
           opening
           of
           them
           ,
           how
           properly
           ,
           truly
           ,
           and
           naturally
           these
           Observations
           result
           ,
           and
           are
           made
           out
           ,
           some
           by
           one
           Precedent
           and
           Author
           ,
           and
           some
           by
           another
           ,
           which
           otherwise
           by
           an
           hasty
           reading
           might
           possibly
           escape
           the
           being
           observ'd
           .
        
         
           It
           will
           not
           be
           altogether
           impertinent
           ,
           by
           the
           way
           ,
           to
           take
           notice
           of
           the
           temper
           and
           usage
           amongst
           the
           Ancient
           Britons
           ,
           before
           the
           coming
           of
           the
           Romans
           ,
           testified
           by
           our
           most
           credible
           Authors
           which
           seem
           to
           have
           a
           countenance
           this
           way
           ,
           viz.
           of
           translating
           all
           publick
           Affairs
           by
           the
           body
           of
           the
           Freeholders
           :
           And
           that
           it
           may
           appear
           ,
           that
           this
           humour
           of
           the
           Nation
           was
           ,
           as
           we
           use
           to
           say
           ,
           bred
           in
           the
           bone
           .
           Although
           they
           seldom
           or
           never
           had
           any
           National
           Assemblies
           ,
           as
           before
           hath
           been
           observ'd
           ,
           unless
           upon
           some
           great
           and
           extraordinary
           sudden
           occasion
           ,
           like
           that
           of
           chusing
           Cassibilan
           for
           their
           General
           upon
           the
           Invasion
           by
           the
           Romans
           ,
           or
           the
           like
           ,
           which
           was
           but
           temporary
           .
        
         
           Tacitus
           ,
           the
           
             Roman
             Annalist
          
           ,
           says
           of
           the
           Ancient
           
             Britons
             ,
             De
             Minoribus
             rebus
             Principes
             consultant
             :
             De
             Majoribus
             ,
             Omnes
             .
             Ita
             tamèn
             ut
             ed
             quóque
             quorum
             penes
             plebem
             arbitrium
             est
             ,
             apud
             Principes
             praetractentur
             .
          
        
         
           Note
           ,
           (
           Principes
           )
           here
           signifies
           not
           Princes
           or
           Monarchs
           ,
           but
           the
           great
           or
           chief
           men
           ,
           as
           will
           appear
           by
           what
           follows
           .
        
         
           The
           Plebs
           ,
           or
           common
           sort
           ,
           were
           not
           excluded
           ,
           whenever
           they
           did
           consult
           ,
           or
           transact
           any
           publick
           Affairs
           .
        
         
           Ziphilinus
           out
           of
           
             Dio
             Cassius
          
           ,
           speaking
           of
           the
           
             Britons
             .
             Apud
             hos
          
           (
           says
           he
           )
           
             Populus
             magnâ
             ex
             parte
             Principatum
             tenet
             .
          
        
         
           This
           is
           not
           meant
           of
           the
           power
           of
           Government
           ,
           as
           if
           they
           were
           a
           Republick
           ,
           or
           had
           any
           thing
           of
           a
           Democracy
           ;
           for
           Caesar
           in
           his
           Commentaries
           tells
           us
           ,
           that
           the
           Old
           and
           Primitive
           Government
           amongst
           the
           Britons
           ,
           as
           to
           the
           Title
           and
           outward
           Form
           of
           the
           Administration
           ,
           was
           Monarchial
           and
           Regal
           .
           
             Olim
             Regibus
             parebant
          
           (
           says
           he
           )
           .
           But
           it
           must
           therefore
           be
           understood
           ,
           that
           the
           People
           had
           this
           Principatum
           in
           Subordination
           to
           the
           Kings
           .
           It
           was
           not
           Engross'd
           into
           the
           hands
           of
           an
           Aristocracy
           ;
           and
           what
           can
           Principatus
           else
           consist
           of
           ;
           unless
           in
           Legislature
           and
           Judicature
           ?
        
         
           Our
           late
           Innovators
           would
           have
           us
           believe
           ,
           that
           (
           Populus
           )
           doth
           sometimes
           signify
           only
           the
           Lay-Lords
           ,
           met
           in
           these
           Ancient
           great
           Assemblies
           ,
           in
           distinction
           only
           from
           the
           Clergy
           ;
           as
           when
           our
           Annals
           or
           Records
           mention
           
             Clerus
             &
             Populus
          
           ,
           (
           as
           they
           often
           do
           )
           it
           is
           not
           (
           say
           they
           )
           to
           be
           understood
           ,
           as
           if
           the
           Common
           people
           met
           ;
           but
           
           only
           those
           of
           the
           higher
           Rank
           ,
           the
           Lords
           ,
           or
           Nobility
           .
           Therefore
           I
           have
           cited
           Tacitus
           ,
           who
           speaks
           of
           the
           Plebs
           ,
           or
           Plebeians
           ,
           who
           used
           to
           meet
           to
           consult
           of
           the
           greatest
           Matters
           ,
           
             De
             Majoribus
             Omnes
             consultant
          
           ,
           as
           before
           was
           observ'd
           .
           (
           Omnes
           )
           comprehends
           the
           Plebeians
           ,
           and
           excludes
           none
           .
        
         
           But
           under
           their
           favour
           (
           Populus
           )
           does
           most
           usually
           signify
           All
           but
           the
           highest
           Rank
           ,
           and
           is
           exclusive
           to
           them
           only
           ,
           though
           sometimes
           by
           way
           of
           distinction
           from
           the
           Prince
           or
           Clergy
           .
        
         
           Thus
           in
           that
           old
           lofty
           Title
           of
           the
           Roman
           Republick
           ,
           
             Senatus
             Populùsque
             Romanus
          
           ,
           where
           the
           word
           (
           Populus
           )
           is
           exclusive
           of
           the
           Senate
           ,
           and
           distinct
           from
           it
           .
        
         
           Thus
           Learned
           Vinius
           the
           Civilian
           in
           his
           Commentaries
           upon
           the
           Imperial
           Laws
           ,
           Page
           12.
           says
           
             Plebs
             à
             Populo
             dissert
             ,
             Nam
             appellatione
             Populi
             ,
             Universi
             Cives
             significantur
             ,
             Connumeratis
             etiam
             Patriciis
             &
             Senatoribus
             .
             Plebis
             autem
             appellatione
             sine
             Patriciis
             &
             Senatoribus
             ,
             caeteri
             cives
             significantur
          
           ;
           but
           in
           no
           Author
           (
           till
           among
           these
           new
           Writers
           of
           ours
           )
           does
           (
           Populus
           )
           signify
           the
           Lords
           or
           Patricians
           ,
           exclusive
           to
           the
           middle
           or
           common
           sort
           (
           as
           they
           would
           have
           it
           .
           )
        
         
           To
           come
           to
           the
           times
           of
           the
           Saxons
           ,
           who
           next
           succeeded
           the
           Romans
           ,
           even
           in
           the
           time
           of
           the
           Heptarchy
           ,
           We
           have
           one
           Instance
           or
           Precedent
           in
           the
           time
           of
           Ina
           ,
           King
           of
           the
           West-Saxons
           ,
           (
           which
           was
           the
           most
           Powerful
           of
           all
           the
           Seven
           ,
           and
           at
           last
           swallowed
           up
           all
           the
           rest
           .
           )
        
         
           Lambert
           in
           his
           Book
           ,
           
             De
             Priscis
             Anglorum
             legibus
          
           ,
           Fol.
           1
           mo
           .
           beginning
           with
           King
           Ina
           ,
           Anno
           712.
           says
           ,
           He
           made
           his
           Laws
           
             suasu
             &
             Instituto
             Episcoporum
             suorum
             ,
             Omnium
             Senatorum
             suorum
             ,
             Et
             Natu
             Majorum
             Sapientum
          
           Populi
           sui
           ,
           in
           Magna
           
             servorum
             Dei
          
           frequentia
           .
        
         
           Brampton
           (
           the
           Historian
           )
           as
           Mr.
           Selden
           cites
           him
           ,
           renders
           it
           ,
           
             Multáque
             Congregatione
             servorum
             Dei
          
           ;
           and
           Lambert
           again
           ,
           Fol.
           62.
           says
           ,
           King
           
             Edgar
             Anno
          
           959.
           (
           who
           was
           one
           of
           the
           English
           Monarchs
           after
           the
           time
           of
           the
           Heptarchy
           )
           gave
           his
           Title
           to
           his
           Laws
           thus
           ,
           viz.
           
             Leges
             quas
             Rex
             Edgarus
             frequenti
             Senatu
             Sancivit
          
           :
           and
           afterwards
           ,
           Fol.
           148.
           in
           a
           remembrance
           and
           recital
           of
           some
           of
           King
           Ina's
           Laws
           ,
           it
           is
           said
           ,
           
             Hoc
             factum
             fuit
             ,
             per
             Commune
             Concilium
             &
             assensum
             Omnium
             Episcoporum
             ,
             Principum
             ,
             Procerum
             ,
             Comitum
          
           (
           no
           word
           of
           Baronum
           )
           for
           they
           were
           not
           in
           being
           till
           afterwards
           in
           the
           time
           of
           the
           Normans
           .
           But
           the
           title
           of
           King
           Ina's
           Laws
           goes
           on
           ,
           and
           says
           further
           ,
           
             Et
             Omnium
             Sapientum
             ,
             Seniorium
             ,
             &
             Populorum
             totius
             Regni
          
           ;
           that
           is
           ,
           in
           English
           ,
           
             The
             Common-Council
             of
             the
             whole
             Nation
             was
             made
             up
             of
             all
             these
             ,
             and
             but
          
           One
           Body
           .
        
         
           In
           the
           time
           of
           King
           Etheluph
           ,
           King
           of
           West-Sex
           ,
           there
           was
           a
           great
           Assembly
           ,
           or
           Parliament
           (
           says
           Mr.
           Selden
           )
           held
           at
           Winchester
           ,
           Anno
           855.
           (
           now
           above
           800
           years
           since
           :
           )
           Where
           were
           present
           the
           Archbishop
           (
           but
           one
           )
           Bishops
           ,
           and
           
             Ducum
             ,
             Comitum
             ,
             Procerúmque
             totius
             terrae
             ,
             aliorúmque
             fidelium
             Infinita
             Multitudo
             ,
          
           for
           which
           he
           cites
           Ingulphus
           .
        
         
           This
           was
           at
           that
           time
           the
           Supreme
           Judicature
           ,
           and
           the
           last
           Resort
           .
        
         
         
           There
           was
           a
           Proceeding
           in
           a
           Civil
           Cause
           before
           their
           Supreme
           Court
           ,
           or
           Witena-Gemot
           ;
           under
           King
           Eldred
           ,
           Son
           to
           King
           Edgar
           ,
           who
           began
           his
           Reign
           (
           says
           Dr.
           Heylin
           )
           Anno
           978.
           one
           Leoffius
           had
           bought
           Land
           of
           Adelwold
           Bishop
           of
           Winchester
           ,
           and
           denied
           to
           pay
           for
           it
           ;
           And
           he
           had
           also
           dis-seis'd
           the
           Bishop
           of
           certain
           other
           Lands
           :
        
         
           
             Edicitur
             placitum
             apud
             Londoniam
          
           ;
           where
           the
           
             Duces
             ,
             Principes
             ,
             Satrapae
             ex
             omni
             parte
             confluerant
          
           ;
           which
           word
           (
           Satrapae
           )
           extends
           to
           the
           middle
           sort
           ,
           as
           I
           shall
           show
           by
           and
           by
           .
           The
           Bishop
           
             coràm
             cunctis
             suam
             causam
             patefecit
          
           (
           he
           opened
           and
           pleaded
           his
           own
           Cause
           )
           before
           them
           all
           .
           
             Quâ
             ,
             rè
             ,
             benè
             ,
             &
             ritè
             ,
             ac
             apertè
             ab
             omnibus
             discussa
          
           (
           not
           commanding
           the
           Parties
           and
           Auditors
           to
           withdraw
           while
           it
           was
           debated
           by
           the
           Court
           )
           
             Omnes
             reddiderunt
             Iudicium
          
           on
           the
           Bishop's
           side
           .
           This
           Case
           is
           also
           mention'd
           by
           Mr.
           Selden
           in
           his
           Titles
           of
           Honour
           ,
           Page
           633.
           
        
         
           One
           case
           more
           that
           I
           shall
           trouble
           the
           Reader
           with
           of
           the
           Saxon
           times
           ,
           shall
           be
           that
           of
           
             Earl
             Godwin
          
           in
           the
           time
           of
           Edward
           the
           
             Confessor
             ,
             Seld.
             ib.
          
           634.
           
           There
           the
           King
           himself
           ,
           in
           his
           own
           person
           ,
           did
           Sue
           an
           Appeal
           of
           Murder
           against
           Earl
           Godwin
           for
           the
           death
           of
           Alfred
           ;
           The
           Witena-Gemote
           sate
           at
           London
           and
           the
           Cause
           was
           heard
           before
           
             Omnes
             Regni
             Magnates
          
           ;
           where
           the
           word
           (
           Magnates
           )
           comprehended
           also
           persons
           of
           the
           middle
           sort
           ,
           as
           well
           as
           those
           of
           the
           highest
           Rank
           ,
           (
           as
           I
           shall
           clearly
           prove
           )
           ;
           but
           the
           matter
           was
           compounded
           ,
           and
           twelve
           Earls
           bought
           it
           off
           with
           as
           much
           Money
           as
           Each
           of
           them
           could
           carry
           to
           the
           King
           in
           their
           Arms.
           Note
           ,
           this
           was
           in
           the
           time
           of
           a
           Saint
           King
           too
           ,
           viz.
           (
           St.
           Edward
           .
           )
        
         
           I
           come
           now
           to
           the
           times
           of
           the
           Normans
           ,
           where
           we
           may
           have
           a
           much
           clearer
           account
           ,
           and
           by
           the
           Precedents
           and
           Writers
           of
           those
           times
           ,
           the
           Observations
           I
           have
           made
           concerning
           the
           different
           Constitution
           of
           the
           Supreme
           Judicature
           then
           ,
           from
           what
           is
           now
           used
           ,
           will
           much
           more
           evidently
           appear
           .
        
         
           William
           the
           First
           (
           stiled
           the
           Conqueror
           )
           though
           he
           took
           great
           care
           to
           enquire
           out
           the
           Laws
           and
           Customs
           of
           the
           Realm
           used
           in
           the
           time
           of
           Edward
           the
           Confessor
           (
           his
           immediate
           Predecessor
           )
           by
           a
           Jury
           of
           twelve
           Men
           out
           of
           every
           County
           ,
           and
           took
           an
           Oath
           more
           than
           once
           to
           observe
           them
           ;
           yet
           he
           introduced
           a
           mighty
           Change
           in
           the
           state
           of
           Affairs
           in
           disposing
           of
           the
           Lands
           ,
           and
           reserving
           new
           Tenures
           .
        
         
           But
           this
           I
           may
           with
           some
           confidence
           affirm
           ,
           that
           though
           the
           persons
           were
           changed
           ,
           that
           is
           ,
           French
           or
           Normans
           instead
           of
           English
           or
           Saxons
           ;
           yet
           the
           Substance
           ,
           the
           Frame
           and
           Constitution
           of
           the
           Government
           still
           continued
           as
           it
           was
           before
           ,
           and
           likewise
           the
           Body
           of
           the
           Laws
           .
        
         
           The
           
             Saxons
             Witena-Gemot
          
           now
           began
           to
           be
           call'd
           a
           Parliament
           ,
           after
           the
           French
           Language
           ;
           but
           it
           consisted
           of
           the
           same
           sort
           of
           Men
           ,
           whose
           Right
           to
           meet
           there
           (
           I
           speak
           as
           to
           the
           generality
           )
           was
           from
           their
           possessions
           :
           And
           in
           like
           manner
           ,
           and
           of
           the
           same
           persons
           ,
           
           was
           the
           Supreme
           Court
           of
           Judicature
           compos'd
           ,
           though
           different
           in
           power
           ;
           yet
           was
           there
           no
           difference
           in
           the
           qualifications
           of
           persons
           .
        
         
           Now
           the
           old
           titles
           of
           Dux
           ,
           Alderman
           ,
           or
           Earl
           ,
           
             Heretoche
             ,
             Vavasor
          
           ,
           and
           Thane
           ,
           where
           translated
           into
           Comes
           ,
           and
           Baro
           ,
           though
           very
           improperly
           .
        
         
           But
           long
           after
           this
           AEra
           ,
           or
           Epoche
           ,
           of
           the
           coming
           of
           the
           Normans
           (
           as
           before
           )
           ,
           they
           were
           no
           otherwise
           honorary
           than
           meerly
           as
           they
           were
           officiary
           ,
           or
           feodal
           .
           There
           were
           no
           Stars
           that
           serv'd
           only
           to
           shine
           and
           glitter
           ,
           but
           they
           all
           had
           their
           useful
           influences
           too
           :
           And
           the
           honour
           was
           but
           the
           shadow
           or
           reflexion
           of
           their
           Power
           and
           Authority
           ,
           and
           they
           had
           the
           Ballast
           too
           of
           large
           Possessions
           .
           
             Ut
             Romae
             olìm
             Senatores
             è
             censu
             Eligebantur
          
           ;
           so
           was
           it
           ever
           in
           England
           till
           the
           time
           of
           King
           Edward
           the
           First
           ,
           or
           Edward
           the
           Third
           ,
           when
           meer
           swelling
           Titles
           came
           in
           the
           place
           of
           Offices
           and
           Estates
           .
        
         
           And
           it
           seems
           very
           consonant
           to
           Reason
           and
           Justice
           ,
           that
           none
           be
           admitted
           to
           a
           share
           in
           the
           Legislature
           ,
           (
           which
           disposes
           of
           Lands
           ,
           and
           imposes
           Taxes
           and
           Charges
           upon
           them
           ;
           )
           and
           that
           none
           have
           a
           Voice
           in
           the
           Supreme
           Court
           of
           Judicature
           ,
           (
           which
           Judges
           and
           Determines
           ultimately
           of
           Estates
           and
           Titles
           to
           Lands
           ,
           )
           but
           such
           as
           have
           good
           Estates
           in
           Lands
           themselves
           ;
           as
           by
           the
           old
           Saxon
           Law
           (
           which
           continues
           Law
           still
           )
           that
           none
           shall
           serve
           of
           a
           Jury
           that
           is
           to
           try
           the
           Title
           of
           Land
           ,
           but
           he
           that
           hath
           a
           Freehold
           in
           Land
           of
           his
           own
           .
        
         
           The
           Bishops
           in
           the
           Saxon
           times
           held
           their
           Lands
           free
           from
           all
           Secular
           Service
           in
           Frank-almoign
           ;
           but
           they
           had
           Place
           and
           Voice
           in
           Parliament
           ,
           as
           Bishops
           ,
           and
           as
           they
           were
           spiritual
           only
           ,
           but
           not
           in
           respect
           of
           any
           Tenure
           or
           Baronies
           ,
           as
           afterwards
           they
           did
           in
           the
           times
           of
           the
           Normans
           .
           And
           Burgesses
           were
           Elected
           to
           Serve
           for
           the
           several
           Burroughs
           (
           which
           were
           then
           but
           few
           )
           as
           is
           clearly
           proved
           by
           the
           Record
           of
           Edward
           the
           Second
           ,
           of
           a
           Petition
           of
           the
           Burgesses
           of
           St.
           Albans
           ,
           as
           it
           hath
           been
           publish'd
           by
           Mr.
           Petit
           of
           the
           Temple
           .
        
         
           And
           it
           is
           very
           likely
           ,
           that
           the
           great
           Officers
           of
           the
           Kingdom
           came
           thither
           by
           virtue
           of
           their
           Offices
           .
           But
           the
           greatest
           part
           (
           no
           doubt
           )
           of
           that
           great
           Body
           ,
           was
           made
           up
           of
           those
           who
           had
           a
           Right
           to
           meet
           there
           in
           respect
           of
           their
           Possessions
           (
           their
           Freeholds
           .
           )
           And
           from
           thence
           ,
           and
           from
           the
           great
           Power
           and
           Authority
           which
           they
           shared
           in
           ,
           at
           those
           great
           Assemblies
           ,
           they
           were
           in
           the
           old
           Saxon
           Laws
           and
           Annals
           stiled
           
             Nobiles
             ,
             Magnates
             ,
             Proceres
             ,
             Primates
             ,
             Principes
             ,
             Seniores
             ,
             Sapientes
             ,
          
           and
           by
           such
           like
           Compellations
           .
        
         
           And
           from
           hence
           have
           arisen
           those
           gross
           Mistakes
           and
           Errors
           ,
           which
           some
           of
           our
           late
           zealous
           Writers
           have
           been
           guilty
           of
           ,
           who
           affirm
           ,
           that
           ever
           any
           one
           House
           ,
           as
           now
           constituted
           ,
           had
           that
           great
           power
           from
           the
           first
           Constitution
           of
           the
           Government
           .
        
         
           In
           our
           Saxon
           Laws
           and
           Annals
           ,
           all
           the
           great
           things
           that
           were
           acted
           in
           those
           times
           ,
           and
           all
           the
           Laws
           that
           were
           then
           made
           ,
           and
           
           the
           Judgments
           then
           given
           ,
           are
           reported
           to
           be
           made
           and
           done
           ,
           by
           persons
           describ'd
           and
           mention'd
           by
           the
           Titles
           then
           in
           use
           ;
           namely
           ,
           by
           the
           Names
           of
           Aldermen
           ,
           or
           Thanes
           ;
           and
           by
           the
           Attributes
           of
           
             Nobiles
             ,
             Principes
             ,
             Proceres
          
           ,
           and
           the
           like
           .
        
         
           Our
           Norman
           Translators
           when
           they
           Translate
           those
           Saxon
           Titles
           ,
           render
           them
           (
           though
           unduly
           )
           in
           the
           dialect
           ,
           and
           by
           the
           Titles
           used
           in
           their
           own
           Times
           ,
           
             viz.
             Comites
             &
             Barones
          
           ;
           because
           in
           their
           own
           times
           none
           were
           usually
           accounted
           
             Magnates
             ,
             Nobiles
             ,
             Proceres
             ,
             Principes
             ,
          
           and
           the
           like
           ,
           but
           such
           as
           were
           in
           the
           ●●●mes
           stiled
           Comites
           and
           Barones
           .
           From
           hence
           our
           late
           inconsid●rate
           Authors
           ,
           (
           such
           as
           Sir
           
             Robert
             Filmer
          
           ,
           Mr.
           Pryn
           ,
           and
           others
           )
           hastily
           catch
           at
           these
           Mis-translations
           ,
           and
           from
           thence
           fiercely
           argue
           ,
           that
           all
           the
           power
           both
           of
           Law-making
           and
           Judicature
           under
           our
           Ancient
           Kings
           were
           only
           in
           the
           Comites
           and
           Barones
           ,
           and
           so
           still
           ought
           to
           be
           ;
           And
           that
           the
           Commons
           have
           but
           Usurp'd
           upon
           the
           House
           of
           Peers
           ,
           and
           that
           from
           the
           time
           only
           of
           King
           Henry
           the
           Third
           .
        
         
           Whereas
           in
           truth
           there
           were
           in
           those
           times
           of
           the
           Saxons
           no
           such
           Titles
           (
           as
           Comites
           and
           Barones
           )
           in
           use
           ,
           to
           any
           such
           purpose
           as
           they
           have
           been
           applied
           to
           ,
           since
           the
           coming
           of
           the
           Normans
           ;
           and
           they
           had
           another
           kind
           of
           signification
           and
           power
           ,
           long
           after
           the
           coming
           in
           of
           the
           Normans
           ,
           till
           about
           the
           time
           of
           King
           Henry
           the
           Third
           ,
           than
           what
           they
           have
           now
           ;
           and
           not
           till
           much
           about
           the
           same
           time
           is
           it
           that
           these
           Anti-Commoners
           allow
           to
           be
           the
           first
           beginning
           and
           date
           of
           the
           Jurisdiction
           of
           the
           House
           of
           Commons
           ;
           and
           that
           till
           then
           there
           was
           no
           such
           House
           .
        
         
           Our
           Famous
           Selden
           takes
           notice
           of
           these
           Mis-translations
           of
           the
           Saxon
           Laws
           and
           Annals
           by
           the
           Norman
           Writers
           ,
           Pag.
           604.
           of
           his
           Titles
           of
           Honour
           .
        
         
           The
           Translation
           ,
           says
           he
           ,
           of
           (
           Alderman
           )
           or
           (
           Earl
           )
           in
           King
           Athelstan's
           Laws
           into
           the
           word
           (
           Comes
           )
           proceeded
           from
           the
           ignorance
           of
           them
           ,
           who
           ,
           after
           the
           Norman
           Monarchy
           ,
           in
           their
           turning
           and
           translating
           the
           Saxon
           Laws
           ,
           thought
           that
           (
           Earl
           )
           was
           used
           for
           (
           Comes
           )
           in
           King
           Athelstan's
           time
           ,
           because
           it
           was
           so
           afterwards
           in
           their
           own
           times
           .
        
         
           That
           kind
           of
           fault
           (
           says
           Selden
           )
           is
           most
           common
           .
        
         
           Sir
           
             Henry
             Spelman
          
           (
           another
           of
           our
           Learned
           Antiquaries
           )
           takes
           notice
           of
           the
           same
           Errour
           in
           our
           Norman
           Translators
           ,
           in
           rendring
           Words
           and
           Titles
           ,
           
             Non
             è
             more
             Saeculi
             antiquioris
          
           ,
           but
           according
           to
           the
           Titles
           of
           Honour
           used
           in
           their
           own
           times
           ;
           when
           in
           truth
           they
           signified
           different
           things
           .
        
         
           As
           if
           a
           man
           should
           go
           about
           to
           prove
           the
           Name
           and
           Office
           of
           High-Sheriffs
           to
           be
           as
           Ancient
           as
           the
           times
           of
           the
           Romans
           ;
           because
           Godwin
           in
           his
           Roman
           Antiquities
           ,
           Page
           176.
           translates
           the
           words
           (
           
             Triumviri
             Capitales
          
           )
           into
           (
           
             Three
             High-Sheriffs
          
           ;
           )
           and
           should
           argue
           that
           whatever
           was
           done
           at
           Rome
           by
           those
           (
           Triumviri
           )
           should
           therefore
           
           belong
           to
           the
           Office
           of
           our
           High-Sheriffs
           ,
           which
           would
           be
           ridiculous
           .
        
         
           We
           may
           as
           well
           argue
           that
           the
           vast
           power
           Exercis'd
           heretofore
           in
           England
           by
           the
           
             Capitalis
             Iustitiarius
             Angliae
          
           (
           as
           his
           Title
           was
           )
           who
           indeed
           was
           all
           one
           with
           a
           Pro-rex
           or
           Viceroy
           (
           and
           whose
           Office
           wholly
           ceased
           in
           the
           time
           of
           King
           Edward
           the
           First
           )
           may
           now
           be
           used
           by
           the
           Chief-Justice
           of
           the
           Kings-Bench
           ,
           who
           often
           hath
           the
           same
           Title
           as
           (
           
             Capitalis
             Iustitiarius
             Angliae
          
           )
           given
           him
           .
        
         
           (
           Nobilis
           )
           says
           Mr.
           Selden
           in
           the
           Saxon
           times
           denoted
           every
           Gentleman
           .
        
         
           Now
           because
           (
           Nobilis
           )
           in
           our
           times
           is
           mostly
           restrain'd
           to
           the
           Peers
           of
           the
           Realm
           ,
           whom
           we
           call
           (
           the
           Nobility
           ,
           )
           our
           new
           Writers
           and
           Arguers
           ascribe
           all
           that
           power
           to
           the
           Lords
           in
           Parliament
           ,
           which
           they
           read
           in
           the
           Norman
           Translators
           (
           such
           as
           
             Matthew
             Paris
          
           ,
           &c.
           )
           was
           Exercis'd
           in
           the
           Saxon
           times
           by
           those
           that
           in
           those
           times
           were
           stiled
           (
           Nobiles
           )
           ;
           when
           in
           truth
           that
           Power
           and
           Authority
           was
           in
           the
           times
           of
           the
           Saxons
           likewise
           in
           the
           hands
           of
           the
           middle
           sort
           of
           persons
           in
           the
           Kingdom
           ,
           as
           well
           as
           in
           those
           of
           the
           highest
           sort
           under
           the
           Saxon
           Kings
           ,
           and
           all
           then
           called
           (
           Nobiles
           .
           )
        
         
           Thus
           (
           Thanes
           )
           who
           in
           the
           Saxon
           times
           signified
           
             Lords
             of
             Mannors
          
           ,
           and
           was
           not
           a
           distinction
           of
           Honour
           ,
           is
           generally
           translated
           (
           Barones
           )
           by
           our
           (
           Norman
           )
           Translators
           ;
           and
           that
           was
           not
           so
           altogether
           improperly
           done
           (
           as
           I
           shall
           show
           by
           and
           by
           ;
           )
           for
           the
           word
           (
           Baro
           )
           from
           the
           time
           of
           the
           coming
           in
           of
           the
           Normans
           ,
           and
           a
           long
           time
           after
           ,
           signified
           no
           more
           than
           a
           (
           Tenant
           in
           Capite
           )
           and
           was
           then
           no
           Title
           of
           Honour
           .
        
         
           The
           words
           
             Nobiles
             ,
             Proceres
             ,
             Magnates
             ,
             Optimates
             ,
          
           and
           such
           like
           ,
           were
           not
           in
           the
           Saxon
           times
           restrain'd
           to
           the
           men
           of
           the
           highest
           Rank
           ,
           such
           as
           our
           Earls
           and
           Barons
           are
           now
           ;
           but
           extended
           to
           all
           persons
           of
           the
           better
           sort
           ,
           and
           above
           the
           vulgar
           .
           Not
           only
           to
           Patricians
           and
           those
           of
           the
           Senatorian
           Order
           ,
           (
           to
           speak
           in
           the
           Roman
           dialect
           )
           but
           also
           to
           those
           of
           
             Equestris
             Ordinis
          
           ,
           excluding
           none
           but
           the
           
             Ignota
             Capita
          
           ,
           or
           
             sine
             Nomine
             turba
          
           ,
           such
           as
           the
           Romans
           stiled
           (
           Plebeians
           .
           )
        
         
           Sir
           
             Henry
             Spelman
          
           ,
           in
           his
           Glossary
           ,
           Page
           84.
           
           
             Avo
             Henrici
             primi
          
           (
           says
           he
           )
           
             Procerum
             Appellatione
             computari
             videntur
             Omnes
             maneriorum
             Domini
          
           :
           So
           that
           Titles
           in
           the
           Saxon
           times
           ,
           and
           in
           the
           beginning
           of
           the
           Norman
           times
           did
           all
           resolve
           themselves
           into
           possessions
           of
           Lands
           ,
           and
           were
           feodal
           .
        
         
           For
           the
           word
           (
           Magnates
           ,
           )
           it
           most
           clearly
           includes
           also
           those
           of
           the
           middle
           sort
           ;
           or
           (
           as
           I
           may
           term
           it
           in
           the
           now
           dialect
           )
           of
           the
           lower
           Nobility
           .
        
         
           Mr.
           Petit
           of
           the
           Temple
           ,
           in
           his
           Book
           of
           (
           the
           Ancient
           Right
           of
           the
           Commons
           asserted
           )
           cites
           a
           Record
           in
           the
           Tower
           ,
           Tertio
           of
           E.
           2.
           membrana
           16
           
             ta
             .
             dorso
             ,
             Rotulo
             clauso
          
           ;
           where
           there
           are
           these
           
           words
           enter'd
           ,
           viz.
           
             Inhibitio
             ,
             nè
             qui
             Magnates
          
           ,
           viz.
           
             Comes
             ,
             Baro
             ,
             Miles
             ,
             seu
             aliqua
             alia
             Notabilis
             persona
             transeat
             ad
             partes
             transmarinas
             .
          
           So
           that
           by
           this
           (
           videlicet
           )
           Milites
           are
           comprehended
           ,
           under
           the
           word
           (
           Magnates
           )
           ,
           and
           Nobilis
           ,
           is
           no
           more
           than
           (
           Notabilis
           .
           )
        
         
           Fleta
           lib.
           2.
           cap.
           42.
           fol.
           93.37
           .
           H.
           3.
           
           
             In
             majori
             Aula
             Westm.
             in
             praesentia
             Regis
             ,
             Archiepiscoporum
             ,
             Episcoporum
             ,
             Abbatum
             ,
             Priorum
             ,
             Comitum
             ,
             Baronum
             ,
             Militum
             ,
             Et
             Aliorum
             Magnatum
             regni
             Angliae
             ,
          
           &c.
           which
           allows
           (
           Milites
           )
           to
           be
           (
           Magnates
           )
           in
           the
           time
           of
           King
           Henry
           the
           Third
           ,
           and
           some
           inferior
           to
           (
           the
           Milites
           )
           under
           the
           word
           (
           Aliorum
           .
           )
        
         
           Lambert
           in
           his
           Book
           
             De
             priscis
             Anglor
             .
             Legibus
             .
             Fol.
          
           176.
           recites
           verbatim
           a
           Charter
           of
           King
           
             Henry
             the
             First
             ,
             de
             Confirmationibus
             legum
          
           Edwardi
           Regis
           .
           
             Testibus
             Archiepiscopis
             ,
             Episcopis
             ,
             Baronibus
             ,
             Comitibus
             ,
             Vice-comitibus
             ,
             Et
             Optimatibus
             totius
             regni
             Angliae
             .
          
           So
           that
           the
           word
           (
           Optimates
           )
           stoop'd
           as
           low
           as
           to
           Knights
           and
           Sheriffs
           (
           for
           there
           were
           no
           Vicounts
           till
           long
           after
           the
           time
           of
           King
           Hen.
           the
           First
           .
           )
        
         
           The
           same
           sense
           of
           the
           words
           (
           
             Magnates
             &
             Proceres
          
           )
           appears
           in
           a
           Record
           of
           the
           Exchequer
           in
           the
           King's
           Remembrancer's
           Office
           ,
           
             inter
             Communia
             brevia
             de
             termino
             Trinitatis
             .
          
           34.
           
           E.
           1.
           
        
         
           Nay
           ,
           the
           words
           (
           
             Baro
             &
             Baronagium
          
           )
           which
           one
           would
           think
           should
           be
           
             Propria
             quarto
             modo
          
           ,
           to
           our
           Peers
           ,
           and
           should
           be
           peculiar
           and
           characteristical
           Notes
           of
           distinction
           between
           Peers
           ,
           and
           all
           others
           their
           Inferiors
           :
           These
           very
           words
           had
           a
           much
           larger
           extent
           ,
           and
           were
           comprehensive
           of
           all
           Tenants
           
             in
             Capite
          
           ;
           Nay
           ,
           communicable
           to
           all
           Lords
           of
           Mannors
           ,
           if
           not
           to
           all
           Freeholders
           :
           And
           this
           for
           a
           long
           time
           after
           the
           coming
           in
           of
           the
           Normans
           ,
           who
           introduced
           them
           first
           amongst
           us
           .
        
         
           And
           the
           very
           Title
           of
           (
           Barones
           )
           gives
           all
           our
           Peers
           ,
           whether
           dignified
           with
           those
           higher
           Titles
           of
           Dukes
           ,
           Marquesses
           ,
           Earls
           ,
           or
           Vicounts
           ,
           the
           sole
           Right
           of
           Sitting
           in
           the
           House
           of
           Peers
           ,
           and
           they
           Sit
           there
           
             Eo
             nomine
          
           ,
           and
           not
           meerly
           by
           force
           of
           those
           higher
           Titles
           .
        
         
           Hence
           it
           is
           ,
           I
           presume
           ,
           that
           those
           higher
           dignities
           are
           never
           conferr'd
           alone
           ,
           but
           accompanied
           at
           least
           with
           that
           most
           peculiar
           Title
           of
           the
           Peers
           ,
           I
           mean
           the
           Barons
           .
        
         
           Now
           
             nomine
             Baronagii
             Angliae
             ,
             Omnes
             quodammodo
             regni
             Ordines
             continebantur
             ,
          
           (
           says
           Learned
           Cambden
           )
           in
           his
           
             Britannia
             ,
             Page
          
           137.
           
        
         
           And
           Sir
           
             Hen.
             Spelman
          
           in
           his
           Glossary
           ,
           Page
           66
           ,
           67
           ,
           68
           ,
           69
           ,
           70.
           
           Upon
           the
           words
           (
           
             Barones
             Comitatûs
          
           )
           says
           ,
           
             Hoc
             nomine
             contineri
             videtur
             antiquis
             paginis
             Omnis
             Baronum
             feodalium
             species
             .
             Proceres
             nempè
             &
             Maneriorum
             Domini
             ,
             nec
             non
             liberi
             quíque
             Tenentes
             ,
             Anglicè
          
           Freeholders
           ,
           
             qui
             Iudiciis
             praefuere
             Aulae
             Regiae
          
           ,
           the
           then
           highest
           Court
           of
           Judicature
           .
           Selden
           in
           his
           Notes
           upon
           Eadmerus
           .
           Fol.
           168.
           
        
         
           The
           same
           Learned
           Author
           ,
           in
           his
           Titles
           of
           Honour
           .
           Fol.
           609.691
           .
           tells
           us
           ,
           that
           in
           the
           beginning
           of
           the
           Reign
           of
           William
           the
           First
           ,
           Honorary
           or
           Parliamentary
           Barons
           ,
           were
           only
           Barons
           by
           Tenure
           ,
           and
           
           created
           by
           the
           King
           's
           Writ
           or
           Charter
           of
           good
           Possessions
           ,
           whereby
           William
           the
           First
           reserved
           to
           himself
           a
           Tenure
           in
           Chief
           by
           Knight's
           Service
           ,
           or
           by
           Grand
           Serjeanty
           .
           And
           that
           Knights
           Service
           was
           to
           serve
           the
           King
           upon
           occasion
           with
           such
           a
           number
           of
           Men
           at
           Arms
           as
           was
           reserv'd
           by
           the
           Charter
           ,
           or
           Grant
           ;
           and
           this
           is
           called
           a
           Tenure
           
             per
             Baronagium
          
           ,
           and
           the
           number
           of
           all
           Knights
           Fees
           (
           out
           of
           which
           Baronies
           were
           made
           up
           )
           amounted
           (
           as
           Ingulphus
           ,
           who
           lived
           in
           the
           Conqueror's
           time
           ,
           says
           ,
           )
           to
           Sixty
           thousand
           Knights
           ,
           or
           Men
           of
           War.
           
        
         
           Now
           these
           Tenants
           in
           Capite
           were
           the
           most
           of
           those
           that
           made
           up
           the
           great
           Assembly
           ,
           called
           a
           Parliament
           ,
           and
           they
           were
           the
           Judges
           of
           the
           Supreme
           Judicature
           ;
           for
           ,
           as
           Mr.
           Selden
           says
           ,
           in
           those
           times
           ,
           
             Tenere
             de
             Rege
             in
             capite
          
           ,
           and
           to
           be
           a
           Baron
           ,
           or
           to
           have
           a
           Right
           to
           sit
           with
           the
           rest
           of
           the
           Barons
           in
           Councils
           ,
           or
           Courts
           of
           Judgment
           ,
           according
           to
           the
           Laws
           of
           those
           times
           ,
           are
           Synonomies
           ,
           and
           signify
           the
           same
           thing
           .
        
         
           All
           these
           Tenants
           
             in
             Capite
          
           (
           had
           the
           whole
           Kingdom
           been
           put
           into
           a
           Scale
           ,
           and
           weighed
           as
           Bocaline
           the
           Italian
           weighed
           all
           the
           Princes
           and
           States
           in
           Europe
           :
           These
           Tenants
           
             in
             Capite
          
           (
           I
           say
           )
           made
           up
           the
           greatest
           part
           of
           the
           weight
           ,
           I
           may
           say
           ,
           the
           whole
           weight
           ,
           if
           Land
           only
           were
           to
           be
           weighed
           .
        
         
           For
           under
           these
           Tenants
           
             in
             Capite
          
           by
           degrees
           in
           process
           of
           time
           ,
           all
           the
           Freeholders
           derive
           their
           Estates
           ,
           who
           are
           therefore
           to
           be
           accounted
           as
           cast
           into
           the
           Scale
           with
           the
           Tenants
           
             in
             Capite
          
           ;
           who
           originally
           had
           all
           the
           Lands
           :
           For
           Lease-holders
           ,
           Farmers
           ,
           and
           Copy-holders
           ,
           are
           but
           in
           the
           nature
           of
           Servants
           or
           Persons
           imploy'd
           under
           the
           Freeholders
           ;
           and
           the
           Copyholders
           did
           truly
           and
           literally
           hold
           their
           Lands
           at
           first
           
             ad
             voluntatem
             domini
          
           ,
           till
           time
           gave
           it
           the
           Reputation
           of
           a
           Legal
           Custom
           ,
           and
           to
           a
           more
           durable
           interest
           ;
           and
           Leases
           for
           above
           40
           years
           ,
           were
           not
           allow'd
           in
           those
           ancient
           times
           ;
           but
           adjudg'd
           and
           held
           to
           be
           void
           ,
           as
           vying
           in
           value
           with
           Inheritance
           ;
           but
           they
           have
           of
           later
           times
           been
           countenanced
           by
           Courts
           of
           Equity
           ,
           and
           made
           equal
           in
           esteem
           with
           Freehold
           Estates
           and
           Inheritances
           ,
           being
           altogether
           under
           the
           Rule
           and
           Government
           of
           those
           Courts
           ,
           and
           having
           their
           dependance
           upon
           the
           decrees
           of
           those
           Courts
           ,
           and
           have
           the
           same
           privileges
           and
           favours
           with
           Inheritances
           ,
           under
           the
           new
           notion
           of
           being
           by
           their
           decrees
           made
           to
           wait
           upon
           the
           Inheritances
           ,
           and
           subject
           to
           Trusts
           ,
           which
           those
           Courts
           take
           upon
           them
           to
           have
           the
           Controulment
           of
           ;
           and
           hereby
           the
           Freehold
           and
           Inheritance
           of
           Lands
           are
           of
           little
           regard
           and
           value
           ,
           in
           comparison
           of
           those
           high
           powers
           and
           privileges
           which
           by
           the
           Law
           and
           Original
           Institution
           of
           the
           Nation
           did
           at
           first
           belong
           to
           them
           :
           All
           this
           tends
           to
           the
           great
           Subversion
           of
           the
           Common-Law
           ,
           and
           of
           the
           very
           Constitution
           of
           the
           Nation
           ;
           and
           to
           all
           the
           good
           Rules
           and
           Orders
           of
           it
           ;
           and
           in
           length
           of
           time
           ,
           if
           not
           before
           remedied
           ,
           will
           bring
           all
           Estates
           in
           Land
           to
           depend
           
           upon
           Decrees
           in
           Equity
           ,
           and
           to
           be
           Ruled
           by
           their
           Arbitrary
           Proceedings
           ,
           and
           then
           farewel
           to
           the
           Common-Law
           .
        
         
           And
           these
           Freeholders
           ,
           who
           were
           but
           the
           offspring
           of
           those
           Ancient
           Tenants
           
             in
             Capite
          
           ,
           are
           by
           the
           Common-Law
           ,
           the
           true
           and
           right
           Owners
           and
           Proprietors
           of
           the
           Kingdom
           :
           And
           accordingly
           ,
           as
           in
           them
           was
           the
           true
           value
           ,
           stable
           ,
           firm
           ,
           and
           fixed
           interest
           of
           the
           Nation
           ;
           so
           in
           them
           did
           the
           Law
           place
           the
           Power
           and
           Government
           under
           the
           King
           ,
           (
           who
           was
           always
           the
           Supreme
           in
           the
           Administration
           .
           )
           Hence
           it
           is
           ,
           that
           a
           Trial
           by
           Freeholders
           ,
           is
           in
           the
           Sense
           and
           Language
           of
           the
           Law
           ,
           a
           Trial
           
             per
             patriam
          
           ;
           for
           they
           are
           indeed
           the
           Country
           ,
           and
           the
           Country
           is
           truly
           theirs
           .
        
         
           And
           it
           is
           a
           mighty
           power
           if
           we
           Enquire
           into
           it
           ,
           and
           much
           of
           it
           still
           remains
           ;
           though
           it
           has
           been
           exceedingly
           abated
           and
           humbled
           ,
           by
           the
           swelling
           of
           Equity
           ,
           and
           by
           certain
           Acts
           of
           Parliament
           made
           in
           troublesome
           Reigns
           ;
           yet
           there
           are
           some
           remains
           ,
           and
           the
           marks
           and
           footsteps
           of
           those
           many
           and
           great
           benefits
           that
           are
           lopp'd
           and
           pared
           off
           from
           it
           .
        
         
           These
           Tenants
           
             in
             Capite
          
           ,
           and
           Freeholders
           were
           the
           Persons
           who
           under
           our
           Kings
           made
           up
           the
           Primitive
           Constitution
           of
           our
           Government
           ,
           both
           as
           to
           the
           Legislature
           ,
           and
           the
           Supreme
           Judicature
           ,
           or
           last
           Resort
           ,
           though
           now
           those
           powers
           run
           in
           a
           new
           Channel
           .
        
         
           I
           shall
           instance
           in
           some
           of
           those
           Ancient
           and
           Inherent
           Rights
           and
           Freedoms
           ,
           which
           those
           Freeholders
           ,
           or
           Tenants
           
             in
             Capite
          
           did
           enjoy
           at
           the
           Common-Law
           ,
           and
           in
           the
           times
           of
           the
           Saxons
           ,
           and
           from
           times
           as
           Ancient
           as
           any
           Records
           do
           reach
           ,
           till
           ,
           by
           several
           Acts
           of
           Parliament
           ,
           made
           for
           the
           most
           part
           in
           unquiet
           times
           ,
           they
           were
           depriv'd
           of
           them
           :
           Which
           will
           best
           discover
           the
           true
           and
           original
           Constitution
           of
           the
           Government
           ,
           and
           give
           great
           light
           to
           the
           matter
           we
           have
           now
           in
           hand
           ,
           viz.
           to
           find
           out
           the
           Supreme
           Judicature
           .
        
         
           Almost
           all
           the
           Suits
           and
           Causes
           that
           did
           arise
           in
           the
           Nation
           ,
           came
           under
           the
           hands
           and
           power
           of
           the
           Freeholders
           ,
           
             ad
             primam
             instantiam
          
           ,
           at
           the
           first
           rise
           of
           them
           ,
           and
           they
           judged
           of
           them
           both
           as
           to
           matters
           of
           Fact
           ,
           and
           points
           in
           Law
           ,
           in
           the
           Country
           .
        
         
           And
           then
           the
           greater
           and
           weightier
           matters
           of
           the
           Law
           met
           the
           same
           persons
           again
           at
           the
           last
           Resort
           of
           all
           Causes
           in
           the
           Witena-Gemots
           :
           For
           these
           Freeholders
           made
           up
           the
           main
           body
           of
           those
           Common-Councils
           and
           great
           Assemblies
           .
        
         
           Sir
           
             Hen.
             Spelman
          
           ,
           in
           his
           Glossary
           .
           Fol.
           70.
           speaking
           of
           the
           Magnates
           and
           Proceres
           ,
           explains
           who
           were
           meant
           by
           those
           high
           terms
           ,
           that
           is
           ,
           the
           good
           Freeholders
           .
           And
           he
           shows
           likewise
           what
           Judicial
           power
           they
           had
           ,
           in
           those
           first
           times
           .
        
         
           Magnates
           ,
           and
           Proceres
           ,
           were
           they
           ,
           
             Qui
             in
             Curiis
             praesunt
             Comitatuum
             ,
             hoc
             est
             ,
             Ipsarum
             Curiarum
             Iudices
             ,
             quos
             Henricus
             primus
             ,
          
           (
           the
           Son
           of
           the
           Conqueror
           ,
           )
           
             legum
             suarum
             cap.
          
           30.
           
             esse
             libere
             tenentes
             Comitatus
             demonstrat
             .
             Regis
             Iudices
             (
             inquit
             )
             sunt
             Barones
             Comitatus
             ▪
             qui
             
             liberas
          
           in
           
             eis
             terras
             habent
          
           .
           There
           are
           the
           Persons
           and
           Judges
           ,
           viz.
           Freeholders
           :
           
             Per
             quos
             debent
             Causae
             Singulorum
             alternâ
             prosecutione
             tractari
             .
          
           There
           you
           have
           their
           Power
           and
           Jurisdiction
           .
        
         
           Among
           the
           Laws
           of
           King
           Henry
           the
           
             First
             ,
             c.
          
           7.
           
           Collected
           by
           Mr.
           
             Lambert
             ,
             de
             priscis
          
           ,
           &c.
           Fol.
           180.
           
           The
           Title
           of
           the
           Law
           is
           ,
           
             De
             generalibus
             placitis
             Comitatuum
             quo
             modo
             vel
             quando
             fieri
             debeant
             .
          
        
         
           
             Sicut
             antiqua
             fuerat
             institutione
             formatum
             generalia
             Comitatuum
             placita
             certis
             locis
             &
             diffinito
             tempore
             convenire
             debent
             ;
             Nec
             ullis
             ultra
             fatigationibus
             agitari
             ,
             nisi
             propria
             Regis
             Necessitas
             ,
             vel
             Commune
             Regni
             Commodum
             saepius
             adjiciat
             .
          
        
         
           
             Intersint
             autem
             Episcopi
             ,
             Comites
             ,
             Vice-domini
             ,
             Vicarii
             ,
             Centenarii
             ,
             Aldermanni
             ,
             praefecti
             ,
             praepositi
             ,
             Barones
             ,
             Vavasores
             ,
             Tungrevii
             ,
             &
             caeteri
             Terrarum
             Domini
             .
          
           These
           were
           the
           Judges
           of
           the
           Court.
           
        
         
           Then
           for
           the
           Extent
           of
           their
           Jurisdiction
           ,
           and
           the
           Universality
           of
           the
           Causes
           ,
           it
           proceeds
           thus
           ,
           viz.
           
        
         
           
             Agantur
             primò
             Verae
             Christianitatis
             Iura
          
           ,
           now
           termed
           Ecclesiastical
           Causes
           .
           
             Secundò
             Regis
             placita
          
           :
           Pleas
           of
           the
           Crown
           ,
           or
           Criminal
           .
           
             Postremo
             Causae
             singulorum
          
           ,
           between
           party
           and
           party
           .
        
         
           And
           in
           the
           time
           of
           the
           Saxons
           ,
           who
           first
           introduced
           this
           Course
           and
           Method
           of
           Justice
           ,
           Suitors
           were
           not
           permitted
           to
           pass
           by
           this
           first
           Application
           and
           Address
           ,
           before
           the
           Barones
           ,
           or
           Freeholders
           ,
           (
           whom
           now
           we
           call
           Free-suitors
           at
           the
           Country-Court
           )
           and
           
             per
             Saltum
          
           to
           begin
           at
           the
           Courts
           of
           Westminster
           ,
           or
           to
           follow
           the
           King
           's
           :
           
             Lambert
             de
             priscis
          
           ,
           &c.
           Fol.
           62.
           
        
         
           It
           is
           amongst
           the
           Laws
           ,
           
             quas
             Edgarus
             ,
             Anno
          
           959.
           
             frequenti
             Senatu
             sancivit
             ,
             Fol.
          
           63.
           
           
             Nemo
             in
             litem
             Regem
             appellato
             ,
             nisi
             quidem
             domi
             ,
             justitiam
             impetrare
             non
             poterit
             :
             Sin
             summo
             jure
             urgeatur
          
           (
           if
           he
           meet
           with
           hard
           measure
           in
           the
           Country
           )
           
             ad
             Regem
             provocato
          
           ;
           that
           is
           ,
           to
           the
           King
           in
           his
           highest
           Court.
           
        
         
           Then
           was
           me
           proper
           time
           of
           Appealing
           to
           the
           King
           in
           his
           great
           Council
           (
           as
           it
           is
           said
           in
           that
           
             Magnum
             placitum
          
           ,
           in
           Ryley's
           
             Placita
             Parliamentaria
             ,
             Page
          
           84.
           between
           
             Humphrey
             de
             Bohun
          
           ,
           Earl
           of
           Hereford
           ,
           and
           
             Gilbert
             de
             Clare
          
           ,
           Earl
           of
           Gloucester
           ,
           (
           and
           they
           are
           the
           very
           words
           of
           the
           Judgment
           in
           that
           Case
           )
           
             Dominus
             Rex
             est
             omnibus
             &
             singulis
             subditis
             suis
             Iustitiae
             debiton
             .
          
        
         
           But
           the
           King
           alone
           in
           his
           own
           Person
           never
           Administred
           Justice
           or
           Equity
           ,
           but
           together
           with
           his
           great
           Court
           ,
           or
           by
           his
           Delegates
           (
           the
           Judges
           )
           in
           inferior
           Courts
           ,
           as
           I
           have
           fully
           prov'd
           in
           my
           Treatife
           of
           the
           Chancery
           .
        
         
           These
           great
           Freeholders
           ,
           or
           Tenants
           
             de
             Rege
             in
             Capite
          
           ,
           as
           they
           were
           ,
           and
           still
           are
           the
           Judges
           of
           the
           County-Court
           ,
           (
           which
           in
           Ancient
           times
           was
           the
           most
           busy
           Court
           ,
           )
           so
           they
           had
           by
           the
           Common-Law
           ,
           and
           from
           time
           as
           far
           as
           any
           Record
           ,
           or
           English
           History
           does
           reach
           ,
           that
           mighty
           freedom
           of
           chusing
           all
           both
           Civil
           and
           Military
           Officers
           or
           Magistrates
           under
           whom
           they
           lived
           .
        
         
         
           They
           chose
           those
           that
           the
           Saxons
           call'd
           Heretoches
           ,
           or
           
             Ductores
             Exercitus
          
           ,
           whom
           ,
           according
           to
           the
           dialect
           of
           the
           present
           times
           ,
           we
           call
           Lord-Lieutenants
           ,
           and
           Deputy-Lieutenants
           ,
           and
           the
           rest
           of
           the
           Commanders
           .
           These
           they
           chose
           at
           their
           Folk-moot
           ,
           or
           County-Court
           .
        
         
           These
           Freeholders
           chose
           the
           Sheriffs
           of
           the
           several
           Counties
           ,
           which
           we
           all
           know
           by
           sad
           Experience
           ,
           many
           times
           ,
           nearly
           concerns
           our
           Lives
           ,
           Estates
           ,
           and
           Liberties
           :
           For
           these
           Sheriffs
           have
           the
           
             posse
             Comitatus
          
           ,
           and
           the
           Return
           of
           Juries
           ,
           and
           the
           Execution
           of
           all
           publick
           and
           private
           Justice
           .
        
         
           These
           Freeholders
           had
           the
           Election
           of
           the
           Conservators
           of
           the
           Peace
           ,
           who
           had
           that
           power
           which
           is
           now
           in
           the
           hands
           of
           the
           Justices
           of
           the
           Peace
           ,
           and
           hath
           been
           so
           from
           the
           beginning
           of
           the
           Reign
           of
           King
           
             Edward
             the
             Third
          
           ,
           at
           which
           time
           it
           was
           wrested
           out
           of
           the
           hands
           of
           the
           Freeholders
           by
           an
           Act
           of
           Parliament
           procur'd
           by
           Queen
           Isabel
           ,
           during
           the
           Life-time
           of
           her
           deposed
           Husband
           ,
           and
           in
           the
           Minority
           of
           her
           Son
           King
           Edward
           the
           Third
           ,
           meerly
           to
           gain
           the
           power
           of
           the
           Kingdom
           into
           the
           hands
           of
           her
           party
           that
           she
           made
           against
           her
           Husband
           (
           the
           deposed
           King.
           )
           And
           ever
           since
           the
           Conservation
           of
           the
           Peace
           hath
           been
           in
           the
           hands
           of
           the
           Commissioners
           ;
           or
           Justices
           of
           the
           Peace
           .
           This
           we
           are
           taught
           by
           our
           Acts
           of
           Parliament
           ,
           and
           by
           the
           Learned
           Lawyer
           and
           Autiquary
           (
           Mr.
           Lambert
           )
           in
           his
           Eirenarcha
           ,
           Fol.
           16.
           and
           19
           ,
           20.
           and
           147.
           and
           by
           Sir
           
             Edw.
             Coke
          
           in
           his
           Second
           Instit.
           Fol.
           174
           ,
           and
           558.
           
        
         
           These
           Freeholders
           ever
           did
           ,
           and
           still
           do
           to
           this
           day
           chuse
           the
           Coroners
           (
           who
           were
           heretofore
           the
           most
           sufficient
           Knights
           of
           the
           County
           .
           )
        
         
           And
           they
           still
           chuse
           the
           Verderors
           where
           there
           are
           any
           Forests
           .
        
         
           All
           this
           appears
           to
           have
           been
           the
           Right
           of
           the
           Freeholders
           long
           before
           the
           Conquest
           .
           See
           Lambert
           ,
           in
           his
           Book
           of
           the
           Saxon
           Laws
           ,
           Fol.
           147.
           among
           the
           Laws
           of
           King
           Edward
           .
        
         
           
             Erant
             &
             aliae
             potestates
             &
             dignitates
          
           (
           for
           Power
           and
           Offices
           ,
           Titles
           and
           dignities
           in
           those
           times
           went
           hand
           in
           hand
           .
           )
           
             Per
             provincias
             &
             per
             singulos
             Comitatus
             totius
             Regni
             constitutae
             qui
          
           Heretoches
           apud
           Anglos
           
             vocabantur
             .
             sc.
             Barones
             ,
             Nobiles
             ,
             &
             insignes
             sapientes
             ;
             Latinè
             verò
             dicebantur
             Ductores
             Exercitus
             .
             Isti
             verò
             viri
             eligebantur
             per
             commune
             Concilium
             per
             singulos
             comitatus
             in
             pleno
             Folk-mote
             ,
             sicut
             &
             Vice-comites
             Comitatuum
             Eligi
             debent
             .
             Ità
             quod
             in
             quolibet
             Comitatu
             semper
             fuit
             Unus
             Heretoch
             ▪
             Electus
             .
          
        
         
           These
           are
           not
           the
           words
           of
           Mr.
           Lambert
           ,
           or
           meerly
           his
           Opinion
           and
           Conceit
           ,
           he
           only
           recites
           the
           words
           of
           the
           Law
           in
           the
           Saxon
           times
           .
           And
           the
           Law
           does
           refer
           it
           to
           the
           times
           of
           the
           English
           ,
           or
           Britons
           ,
           for
           they
           were
           the
           men
           who
           called
           these
           Leaders
           by
           the
           name
           of
           Heretoches
           .
        
         
         
           Thus
           we
           see
           how
           large
           an
           extent
           this
           word
           (
           Barones
           )
           did
           bear
           ;
           that
           it
           comprehended
           all
           Tenants
           
             in
             Capite
          
           ,
           who
           at
           first
           were
           the
           only
           Freeholders
           :
           Till
           by
           Subfeodations
           the
           number
           of
           Freeholders
           encrease'd
           infinitely
           ,
           which
           caused
           a
           great
           alteration
           .
           But
           the
           first
           Tenants
           
             in
             Capite
          
           had
           large
           Possessions
           .
        
         
           
             Notandum
             est
          
           (
           says
           Sir
           
             Hen.
             Spelman
          
           )
           
             libere
             hos
             tenentes
             nec
             tam
             exiles
             olim
             fuisse
             ,
             nec
             tam
             vulgares
             ,
             ut
             hodiè
             deprehenduntur
             ,
             nam
             villas
             &
             dominia
             in
             minutas
             hereditates
             nondum
             distrahebant
             .
          
        
         
           We
           have
           set
           forth
           their
           Country
           Jurisdiction
           ;
           now
           to
           speak
           a
           word
           of
           their
           Supreme
           Jurisdiction
           .
        
         
           Sir
           
             Henry
             Spelman
          
           in
           his
           Glossary
           tells
           us
           ,
           
             Barones
             olim
             de
             causis
             cognoscebant
             ad
             Aulam
             Regiam
             delatis
             .
          
           There
           was
           the
           last
           resort
           ,
           and
           the
           Court
           of
           Equity
           .
        
         
           King
           William
           the
           First
           (
           says
           Mr.
           Selden
           )
           in
           the
           4th
           year
           of
           his
           Reign
           ,
           brought
           the
           Bishops
           and
           Abbots
           under
           the
           Tenure
           by
           Barony
           ,
           
             Concilio
             Baronum
             suorum
          
           ,
           which
           by
           the
           Proofs
           that
           I
           have
           already
           offered
           ,
           signify
           the
           Tenants
           
             in
             Capite
          
           ,
           and
           the
           Eminent
           Freeholders
           ,
           and
           a
           Parliament
           ,
           (
           as
           Mr.
           Selden
           takes
           it
           .
           )
        
         
           The
           Bishops
           contended
           earnestly
           against
           it
           ;
           for
           the
           Power
           and
           Jurisdiction
           being
           then
           in
           the
           hands
           of
           so
           great
           a
           number
           ,
           it
           made
           it
           the
           less
           desirable
           ;
           so
           that
           ,
           as
           Sir
           
             Hen.
             Spelman
          
           tells
           us
           ,
           The
           Clergy
           look'd
           upon
           it
           as
           a
           diminution
           of
           their
           former
           Immunity
           and
           Freedom
           which
           they
           had
           assum'd
           and
           adjudg'd
           due
           to
           themselves
           .
           
             Detrahere
             videtur
             nomen
             Baronis
             ab
             Ecclesiasticarum
             Immunitate
             quam
             tunc
             Ecclesiastici
             maximè
             splendebant
             .
             Hoc
             .
             nostratibus
          
           (
           says
           Sir
           
             Henry
             Spelman
             )
             jugum
             injecit
             ,
             Omnium
             Primus
             .
             Willielmus
             Senior
             .
          
        
         
           But
           in
           the
           Tenth
           year
           of
           King
           Henry
           the
           
             Second
             ,
             Thomas
          
           of
           Becket
           ,
           that
           proud
           and
           insolent
           Prelate
           ,
           would
           have
           cast
           off
           this
           Yoke
           again
           ,
           like
           a
           Son
           of
           Belial
           ,
           and
           he
           stifly
           stood
           upon
           the
           Exemption
           of
           the
           Clergy
           .
           Then
           (
           says
           Selden
           )
           that
           great
           Parliament
           at
           Clarendon
           was
           held
           :
           And
           Roger
           of
           Hoveden
           says
           ,
           that
           
             Clerus
             &
             Populus
             Regni
          
           were
           then
           Assembled
           ,
           which
           Mr.
           Selden
           expounds
           to
           be
           a
           Parliament
           .
        
         
           In
           this
           Parliament
           (
           says
           Selden
           )
           those
           
             Avitae
             consuetudines
          
           (
           which
           made
           the
           great
           quarrel
           between
           Thomas
           of
           Becket
           ,
           and
           King
           Henry
           the
           2
           d.
           )
           were
           Recogniz'd
           .
        
         
           And
           it
           is
           very
           material
           towards
           the
           deciding
           of
           another
           great
           Controversy
           that
           has
           of
           late
           been
           agitated
           ,
           that
           Custom
           for
           the
           Prelates
           withdrawing
           from
           matters
           of
           Blood
           ,
           is
           recited
           as
           one
           of
           these
           
             Avitae
             Consuetudines
          
           ;
           for
           the
           Bishops
           (
           as
           I
           observ'd
           before
           out
           of
           Mr.
           Selden
           )
           had
           places
           in
           those
           general
           Conventions
           in
           all
           the
           times
           of
           the
           Saxons
           .
           And
           in
           all
           those
           times
           it
           seems
           it
           was
           their
           custom
           to
           withdraw
           :
           For
           it
           was
           
             Avita
             Consuetudo
          
           ,
           and
           we
           know
           that
           Customs
           must
           be
           exactly
           pursued
           .
           And
           this
           Custom
           is
           acknowledg'd
           and
           declar'd
           by
           Act
           of
           Parliament
           ,
           (
           the
           Parliament
           at
           Clarendon
           .
           )
           
           Though
           by
           the
           Ancient
           Canons
           of
           the
           Church
           ,
           (
           which
           was
           the
           ground
           of
           that
           Custom
           )
           at
           first
           it
           was
           left
           to
           their
           own
           choice
           .
        
         
           Among
           those
           Articles
           this
           was
           one
           ,
           
             Quod
             Archiepiscopi
             ,
             Episcopi
             ,
             &
             Universi
             Personae
             qui
             de
             Rege
             tenent
             in
             Capite
             ,
             habeant
             possessiones
             suas
             de
             Rege
             ,
             sicut
             Baroniam
             ,
             &
             sicut
             caeteri
             Barones
             Debent
             interesse
             Iudiciis
             Curiae
             Regis
             cum
             Baronibus
             quoúsque
             perveniatur
             ad
             Diminutionem
             membrorum
             ,
             vel
             ad
             Mortem
             .
          
        
         
           Who
           these
           (
           Barones
           )
           were
           in
           those
           times
           most
           plainly
           appears
           by
           this
           very
           Law
           ,
           viz.
           They
           are
           such
           
             Qui
             tenent
             de
             Rege
             in
             Capite
          
           :
           And
           what
           their
           Right
           ,
           and
           Power
           ,
           and
           Jurisdiction
           is
           ,
           (
           for
           which
           purpose
           I
           chiefly
           cite
           it
           )
           
             debent
             interesse
             Iudiciis
             Curiae
             Regis
          
           :
           This
           
             Curia
             Regis
          
           plainly
           appears
           to
           be
           the
           Supreme
           Judicature
           ,
           which
           we
           are
           enquiring
           after
           ,
           and
           which
           some
           late
           Writers
           conceive
           did
           in
           all
           times
           belong
           to
           the
           House
           of
           Peers
           ;
           but
           't
           is
           a
           mistake
           in
           them
           ,
           by
           occasion
           of
           the
           word
           (
           Barones
           )
           mention'd
           in
           it
           ;
           And
           they
           think
           it
           bears
           their
           Signature
           ,
           and
           peculiarly
           belongs
           to
           them
           :
           Whereas
           by
           this
           Law
           it
           undeniably
           appears
           to
           belong
           to
           that
           vast
           number
           of
           Tenants
           
             in
             Capite
          
           .
        
         
           And
           if
           we
           may
           believe
           Sir
           
             Henry
             Spelman
          
           (
           who
           is
           fide-dignus
           ,
           )
           the
           Honour
           was
           so
           much
           the
           less
           ,
           because
           it
           was
           transferrable
           .
        
         
           
             Cum
             autem
             feodales
             isti
             Barones
             nomen
             dignitatémque
             suam
             ratione
             fundi
             obtinuerint
             ,
             transferre
             olim
             aliquando
             videatur
             cum
             ipso
             fundo
             .
          
           The
           Terra
           did
           
             transire
             cum
             Onere
          
           ,
           for
           so
           the
           Honour
           ,
           being
           accompanied
           with
           a
           Duty
           ,
           was
           accounted
           in
           those
           days
           :
           Honos
           was
           not
           without
           the
           Onus
           .
        
         
           The
           only
           Titles
           that
           we
           meet
           with
           in
           the
           Saxon
           times
           ,
           as
           we
           learn
           out
           of
           Mr.
           Lambert
           ,
           Sir
           
             Henry
             Spelman
          
           ,
           Mr.
           Selden
           ,
           and
           Mr.
           Cambden
           ,
           are
           Alderman
           ,
           which
           in
           the
           times
           of
           the
           Danes
           was
           translated
           into
           Eorl
           ;
           and
           in
           the
           Norman
           times
           into
           Comes
           .
           And
           the
           Title
           of
           Heretoch
           .
           (
           which
           I
           have
           just
           now
           Explain'd
           )
           and
           those
           other
           Titles
           of
           Vavasor
           ,
           and
           Thane
           ,
           had
           all
           a
           reference
           to
           possessions
           in
           Land
           ;
           And
           were
           rather
           Officiary
           than
           Honorary
           ,
           and
           were
           generally
           due
           to
           these
           Tenants
           
             in
             Capite
          
           ,
           who
           were
           the
           same
           with
           (
           Barones
           .
           )
        
         
           For
           that
           of
           Alderman
           ,
           or
           Comes
           ,
           or
           Satrapa
           ,
           says
           Cambden
           ,
           in
           his
           
             Britannia
             ,
             Page
          
           135
           ,
           and
           136.
           
           
             Comitis
             nomen
             ut
             dignitatem
             notaret
             sine
             administratione
             ,
             in
             usu
             non
             fuit
             ,
          
           in
           the
           Elder
           times
           ;
           and
           so
           says
           Selden
           in
           his
           Titles
           of
           Honour
           ,
           Page
           604.
           
        
         
           
             Nec
             dum
             haereditaria
             fuit
             dignitas
             :
             Initio
             dignitas
             temporaria
             posted
             vitae
             aequalis
             .
          
           But
           in
           that
           Age
           ,
           Titles
           of
           Honour
           and
           Place
           were
           no
           more
           hereditary
           ,
           than
           Virtue
           and
           True
           Worth
           were
           ,
           which
           are
           not
           
             ex
             traduce
          
           ▪
        
         
           In
           the
           beginning
           of
           William
           the
           Conqueror
           ,
           
             Comites
             caeperunt
             esse
             feodales
             &
             hereditarii
             .
          
        
         
           
             Dux
             nomen
             Officii
             ,
             non
             Honoris
             ,
          
           says
           Cambden
           ,
           Page
           134
           ,
           135.
           
           
           
             Oneris
             ,
             non
             Honoris
          
           .
           It
           was
           no
           Title
           of
           Honour
           ,
           till
           King
           Edward
           the
           Third
           made
           his
           Son
           Edward
           the
           Black-Prince
           ,
           Duke
           of
           Cornwal
           .
        
         
           And
           King
           Richard
           the
           Second
           ,
           (
           that
           Prince's
           Son
           )
           made
           
             Robert
             de
             Vere
          
           the
           first
           Marquess
           ,
           that
           is
           ,
           of
           Dublin
           .
        
         
           And
           King
           Henry
           the
           Sixth
           made
           the
           first
           Viscount
           ,
           which
           still
           is
           also
           a
           name
           Officiary
           .
        
         
           Selden's
           Titles
           
             &c.
             page
          
           621.
           
           The
           King's
           Thane
           was
           he
           that
           held
           of
           the
           King
           in
           chief
           by
           Knight's
           Service
           .
           He
           was
           of
           the
           same
           kind
           with
           them
           ,
           who
           after
           the
           coming
           of
           the
           Normans
           ,
           were
           Honorary
           ,
           of
           Parliamentary
           Barons
           .
        
         
           The
           name
           of
           Vavasor
           ,
           says
           
             Seld.
             ib.
          
           625.
           was
           feodal
           only
           ,
           and
           not
           at
           all
           honorary
           .
           In
           Doom's-day
           (
           says
           he
           )
           it
           sometimes
           occurs
           as
           a
           Synonomy
           ,
           with
           
             liberi
             homines
             Regis
          
           .
        
         
           These
           Tenants
           
             de
             Rege
             in
             Capite
          
           ,
           were
           the
           persons
           that
           had
           Right
           to
           Sit
           in
           Parliament
           ,
           and
           in
           the
           Supreme
           Judicature
           and
           Councils
           ,
           during
           the
           times
           of
           the
           first
           Six
           or
           Seven
           of
           the
           Kings
           next
           after
           the
           coming
           of
           the
           Selden's
           Titles
           ,
           &c.
           pag.
           705.
           
           To
           the
           
             Magnum
             Concilium
          
           ,
           and
           
             Solenne
             Concilium
          
           .
        
         
           King
           Henry
           the
           
             Second
             ,
             Omnibus
             qui
             de
             Rege
             tenebant
             in
             Capite
             mandari
             fecit
             ,
          
           &c.
           
        
         
           And
           Mr.
           
             Selden
             ib.
          
           pag.
           701
           ,
           and
           702.
           gives
           us
           Precedents
           of
           Causes
           Determin'd
           in
           this
           High
           and
           Supreme
           Judicature
           .
        
         
           As
           that
           between
           Thomas
           Archbishop
           of
           York
           ,
           and
           Ulstan
           Bishop
           of
           Worcester
           ,
           touching
           certain
           possessions
           ,
           
             Anno
             Quarto
          
           of
           William
           the
           First
           .
        
         
           
             In
             Concilio
             Coram
             Rege
             ,
             Archiepiscopo
             ,
             Episcopis
             ,
             Abbatibus
             ,
             Commitibus
             ,
             &
             Primatibus
             totius
          
           Angliae
           ;
           and
           it
           hath
           already
           been
           shewn
           ,
           who
           are
           understood
           by
           (
           Primates
           .
           )
        
         
           And
           
             ib.
             pag.
          
           703.
           
           There
           was
           a
           Decree
           made
           touching
           the
           Primacy
           of
           
             Canterbury
             ,
             Totius
             Regni
             assensu
          
           (
           says
           Eadmerus
           )
           which
           (
           says
           Selden
           )
           ,
           expresses
           a
           full
           Parliament
           ,
           suppos'd
           to
           be
           in
           the
           Fifth
           year
           of
           the
           said
           William
           the
           First
           ,
           at
           Pinneden
           in
           Kent
           .
        
         
           Now
           for
           the
           mighty
           number
           of
           which
           this
           great
           Assembly
           did
           ever
           consist
           ,
           Mr.
           Petit
           ,
           in
           his
           Book
           ,
           wherein
           he
           asserts
           the
           Right
           of
           the
           Commons
           ,
           pag.
           100.
           cites
           a
           passage
           out
           of
           
             Matth.
             Paris
          
           .
           pag.
           255.
           who
           says
           that
           in
           the
           year
           1215.
           
           
             Decimo
             Sexto
             Iohannis
             Regis
          
           ,
           there
           met
           
             Tota
             Angliae
             Nobilitas
             in
             Unum
             collecta
             ,
             quae
             sub
             Numero
             non
             cadebat
          
           ;
           and
           yet
           't
           is
           called
           (
           Nobilitas
           .
           )
        
         
           And
           Cambden
           ,
           in
           his
           Britannia
           ,
           pag.
           137.
           speaking
           of
           their
           number
           ,
           says
           ,
           
             Ipsaque
             Baronum
             multitudo
             persuadet
             tales
             fuisse
             Dominos
             qui
             jus
             in
             suâ
             ditione
             dicere
             possent
             .
          
           All
           Lords
           of
           Mannors
           that
           had
           their
           Courts
           Baron
           ,
           which
           from
           thence
           had
           also
           their
           name
           of
           
             Courts
             Baron
          
           .
        
         
           Sir
           
             Hen.
             Spelman
          
           in
           his
           Glossary
           says
           of
           these
           Barons
           ,
           That
           they
           were
           
             Ingens
             Multitudo
             ,
             quae
             plus
             minus
             ,
          
           were
           Thirty
           thousand
           ,
           
             nullo
             tecto
             Convocari
             poterat
          
           .
           Therefore
           they
           
           met
           in
           great
           Camps
           and
           Fields
           .
           And
           Sir
           
             Hen.
             Spelman
          
           says
           ,
           He
           can
           hardly
           believe
           (
           
             Quod
             nonnulli
             perhibent
             )
             quod
             Omnes
             Barones
             locum
             aliquando
             in
             summis
             illis
             Comitiis
             obtinuisse
             ,
          
           because
           of
           their
           vast
           number
           .
        
         
           By
           all
           this
           that
           hath
           been
           said
           ,
           and
           so
           fully
           proved
           ,
           I
           suppose
           it
           clearly
           appears
           ,
           that
           those
           that
           made
           up
           the
           Assembly
           for
           the
           Legislature
           ,
           and
           Supreme
           Judicature
           ,
           came
           thither
           by
           a
           feodal
           Right
           (
           unless
           the
           Burgesses
           only
           ,
           and
           some
           Ecclesiastical
           Persons
           ,
           and
           some
           great
           Officers
           .
           )
        
         
           Here
           is
           not
           in
           all
           these
           Precedents
           ,
           Records
           ,
           or
           Testimonies
           of
           approved
           Authors
           and
           Antiquaries
           ,
           the
           least
           mention
           of
           any
           distinction
           among
           them
           ,
           like
           that
           of
           Lords
           and
           Commons
           ,
           or
           Upper
           and
           Lower
           House
           ;
           or
           that
           they
           were
           divided
           in
           their
           place
           of
           Sitting
           or
           Meeting
           ;
           for
           as
           is
           before
           observ'd
           ,
           their
           number
           was
           so
           vast
           ,
           that
           
             nullo
             tecto
             convocari
             poterant
          
           .
           No
           one
           House
           could
           hold
           them
           .
        
         
           In
           the
           case
           of
           Godsol
           ,
           and
           Sir
           
             Christop
             .
             Heydon
          
           ,
           12.
           
           
             Iac.
             in
             Serjeant
             Rolls
          
           1.
           
           
             Rep.
             Fol.
          
           18.
           
           It
           was
           affirmed
           by
           Sir
           
             Edward
             Coke
          
           ,
           that
           in
           Ancient
           Times
           all
           the
           Parliament
           sate
           together
           ;
           and
           that
           he
           had
           seen
           a
           Record
           of
           it
           in
           the
           Thirtieth
           year
           of
           Henry
           the
           First
           .
           But
           
             William
             Pryn
          
           (
           according
           to
           his
           accustomed
           humour
           )
           contradicts
           Sir
           
             Edward
             Coke
          
           in
           this
           ,
           in
           his
           Preface
           to
           Sir
           Cotton's
           Abridgment
           of
           the
           Records
           of
           the
           Tower.
           
        
         
           It
           may
           be
           concluded
           ,
           that
           they
           all
           had
           a
           Right
           to
           come
           to
           the
           great
           Convention
           ;
           for
           had
           they
           all
           been
           called
           by
           special
           Writs
           ,
           (
           as
           the
           Lords
           now
           are
           ,
           )
           the
           King
           would
           never
           have
           call'd
           so
           great
           a
           number
           ,
           which
           do
           but
           hinder
           business
           .
        
         
           There
           is
           not
           the
           least
           mention
           of
           special
           Writs
           ,
           and
           it
           would
           have
           been
           an
           infinite
           Work
           to
           issue
           out
           so
           many
           Writs
           ,
           Printing
           not
           being
           then
           invented
           .
           Therefore
           no
           doubt
           but
           they
           came
           thither
           by
           a
           general
           Summons
           .
           There
           is
           not
           the
           least
           intimation
           of
           any
           distinction
           in
           their
           Power
           ,
           but
           every
           one
           had
           a
           like
           share
           in
           the
           Power
           ,
           both
           in
           the
           Legislature
           and
           Judicature
           .
        
         
           None
           came
           amongst
           them
           by
           a
           meer
           Title
           of
           Honour
           and
           Dignity
           ,
           but
           in
           Right
           of
           their
           Possesions
           and
           Tenures
           .
           This
           was
           not
           indeed
           the
           Representative
           of
           the
           Nation
           ;
           but
           ,
           (
           as
           I
           said
           before
           )
           the
           Principals
           ,
           and
           in
           effect
           ,
           the
           whole
           Body
           of
           the
           Nation
           ,
           which
           is
           much
           greater
           .
        
         
           But
           at
           last
           this
           great
           Body
           fell
           with
           its
           own
           weight
           ;
           for
           ,
           says
           Sir
           
             Hen.
             Spelman
             ,
             Cùm
             sua
             tandem
             laborarent
             multitudine
             Conventúsque
             sic
             magis
             premerent
             quàm
             Regni
             Negotia
             Expedirent
             ,
          
           (
           they
           did
           rather
           hinder
           than
           help
           )
           
             Consultius
             visum
             est
             ,
             ut
             neglectis
             Minoribus
             ,
             praecipui
             tantùm
             ,
             per
             breve
             Regis
             evocarentur
             .
          
           It
           was
           with
           this
           Constitution
           of
           the
           great
           Assembly
           of
           the
           Freeholders
           of
           the
           Nation
           ,
           as
           it
           happen'd
           with
           the
           City
           of
           Rome
           ,
           when
           it
           had
           attain'd
           to
           its
           Acma
           and
           full
           growth
           ,
           
             Mole
             ruebat
             suâ
          
           .
        
         
         
           And
           Learned
           Cambden
           tells
           us
           in
           what
           time
           a
           division
           of
           this
           great
           Body
           was
           effected
           .
           
             Henricus
             Tertius
          
           (
           says
           he
           ,
           )
           (
           in
           his
           
             Britannia
             ,
             pag.
          
           137.
           )
           
             Ex
             tantâ
             Multitudine
          
           (
           speaking
           of
           the
           Parliament
           in
           those
           times
           )
           
             quae
             seditiosa
             &
             turbulenta
             fuit
             ,
             Optimos
             quosque
             Rescripto
             ad
             Comitia
             Parliamentaria
             evocaverit
             .
          
        
         
           Here
           we
           have
           plainly
           the
           Original
           of
           the
           House
           of
           Peers
           ,
           and
           of
           particular
           and
           special
           Rescripts
           or
           Writs
           of
           Summons
           to
           the
           Optimacy
           ,
           distinctly
           ,
           and
           by
           themselves
           .
           Cambden
           quotes
           his
           Author
           for
           this
           ,
           but
           names
           him
           not
           .
           
             Ex
             satis
             antiquo
             Scriptore
             loquor
          
           ,
           (
           says
           he
           .
           )
        
         
           It
           was
           referr'd
           to
           the
           King
           to
           single
           out
           ,
           and
           select
           some
           to
           whom
           he
           thought
           fit
           to
           direct
           his
           special
           Writs
           or
           Summons
           ,
           and
           these
           and
           no
           other
           were
           to
           come
           to
           Parliament
           .
        
         
           If
           this
           may
           be
           credited
           ,
           then
           we
           have
           the
           Epoche
           ,
           and
           the
           Date
           of
           our
           present
           Constitution
           ,
           and
           the
           Original
           of
           the
           Division
           of
           that
           very
           ancient
           ,
           great
           ,
           and
           numerous
           Assembly
           ;
           and
           it
           made
           a
           mighty
           Metamorphosis
           and
           Change.
           The
           Freeholders
           parted
           with
           that
           great
           Power
           and
           Interest
           which
           they
           had
           both
           in
           Legislature
           and
           Judicature
           ,
           from
           the
           very
           Foundation
           of
           the
           Government
           ,
           and
           the
           Nation
           it self
           :
           Even
           from
           the
           time
           of
           the
           Ab-origines
           ,
           (
           if
           there
           were
           ever
           any
           such
           ,
           )
           and
           they
           have
           been
           upon
           the
           losing-hand
           ever
           since
           ,
           as
           appears
           by
           what
           I
           have
           already
           observ'd
           in
           closing
           their
           Rights
           of
           Elections
           .
        
         
           And
           thus
           they
           brake
           in
           two
           ,
           and
           became
           two
           Houses
           both
           at
           one
           time
           ,
           and
           were
           Twins
           in
           their
           Birth
           .
           Here
           was
           no
           Primogeniture
           ,
           yet
           the
           one
           went
           away
           with
           a
           double
           portion
           upon
           the
           parting
           .
        
         
           And
           this
           (
           taking
           in
           the
           History
           )
           is
           a
           confutation
           of
           that
           Opinion
           ,
           That
           the
           House
           of
           Commons
           (
           as
           being
           by
           Election
           )
           was
           in
           time
           long
           after
           the
           Date
           of
           the
           House
           of
           Peers
           ;
           surely
           they
           started
           both
           together
           .
        
         
           Great
           Selden
           agrees
           in
           the
           Substance
           with
           Mr.
           Cambden
           ,
           but
           differs
           from
           him
           only
           in
           the
           time
           ,
           and
           some
           other
           circumstances
           ,
           when
           this
           Revolution
           happen'd
           .
           And
           for
           Mr.
           Cambden's
           
             satis
             antiquus
             Author
          
           ,
           Mr.
           Selden
           professes
           he
           diligently
           sought
           for
           this
           Author
           ,
           but
           could
           never
           meet
           with
           him
           ;
           nor
           does
           Mr.
           Selden
           give
           any
           credit
           to
           that
           Author
           .
        
         
           He
           supposes
           the
           distinction
           of
           Majores
           ,
           and
           
             Minores
             Barones
          
           ,
           (
           which
           doubtless
           did
           arise
           upon
           this
           Revolution
           )
           pag.
           708.
           began
           not
           long
           before
           the
           great
           Charter
           of
           King
           Iohn
           (
           Father
           to
           King
           Henry
           the
           Third
           )
           and
           that
           Charter
           was
           made
           in
           the
           Seventeenth
           and
           last
           year
           of
           King
           Iohn
           .
        
         
           This
           Division
           of
           Barones
           (
           which
           all
           Writers
           agree
           in
           ,
           and
           which
           appears
           by
           King
           Iohn's
           Great
           Charter
           )
           evidently
           shows
           ,
           that
           the
           two
           Houses
           began
           at
           the
           same
           time
           ;
           for
           Majores
           cannot
           be
           without
           
           the
           Minores
           .
           But
           Mr.
           Selden
           supposes
           this
           was
           done
           by
           Act
           of
           Parliament
           ,
           though
           that
           Act
           be
           not
           now
           Extant
           :
           Nor
           is
           there
           any
           express
           Memorial
           of
           it
           .
           And
           he
           supposes
           it
           was
           not
           submitted
           to
           the
           King
           to
           chuse
           out
           whom
           he
           thought
           fit
           ;
           But
           that
           the
           Act
           of
           Parliament
           did
           mention
           them
           by
           name
           at
           first
           ,
           to
           whom
           particular
           Writs
           were
           to
           be
           directed
           .
        
         
           Some
           part
           of
           the
           very
           words
           of
           that
           Charter
           of
           King
           Iohn's
           we
           have
           in
           Mr.
           Selden's
           Titles
           of
           Honour
           ,
           pag.
           709.
           and
           in
           Sir
           
             Hen.
             Spelman
          
           in
           his
           Glossary
           ,
           pag.
           83.
           
           Faciemus
           (
           says
           that
           great
           Charter
           )
           
             Summoneri
             Archiepiscopos
             ,
             Episcopos
             ,
             Abbates
             ,
             Comites
             ,
             &
             Majores
             ▪
             Barones
             Regni
             ,
          
           Sigillatim
           ,
           
             per
             literas
             nostras
             :
             Et
             praetereà
             faciemus
             submoneri
          
           in
           generali
           
             per
             Vice-comites
             Omnes
             alios
             qui
             in
             capite
             tenent
             de
             Nobis
          
           ;
           which
           is
           a
           clear
           proof
           ,
           that
           till
           about
           this
           time
           ,
           there
           was
           no
           distinction
           :
           And
           that
           which
           did
           Constitute
           a
           Parliamentary
           Baron
           ,
           was
           his
           Tenure
           
             de
             Rege
             in
             Capite
          
           ;
           so
           that
           all
           who
           held
           
             in
             Capite
          
           ,
           had
           an
           inherent
           Right
           to
           sit
           there
           .
           And
           that
           before
           this
           time
           ,
           all
           came
           by
           a
           general
           Summons
           directed
           to
           the
           Sheriff
           .
        
         
           What
           hath
           been
           hitherto
           said
           serves
           to
           prove
           ,
           That
           before
           this
           time
           of
           King
           Iohn
           ,
           or
           King
           Henry
           the
           3
           d
           (
           his
           Son
           )
           there
           was
           only
           one
           great
           Assembly
           of
           the
           Nation
           ;
           that
           is
           ,
           of
           the
           most
           Eminent
           ,
           and
           all
           the
           considerable
           and
           interested
           persons
           of
           the
           Nation
           ,
           who
           came
           not
           by
           Election
           ,
           save
           those
           that
           were
           chosen
           from
           the
           few
           and
           ancient
           Burroughs
           :
           Nor
           was
           there
           then
           any
           Representative
           ,
           as
           now
           .
        
         
           And
           that
           those
           great
           Assemblies
           were
           in
           those
           times
           the
           true
           Baronage
           of
           England
           ,
           and
           that
           the
           word
           (
           Baronage
           )
           did
           not
           belong
           only
           to
           such
           as
           the
           King
           by
           special
           Writ
           is
           pleas'd
           to
           call
           or
           summon
           ;
           or
           by
           Patent
           to
           confer
           the
           Title
           upon
           ;
           but
           as
           our
           most
           judicious
           Writers
           tell
           us
           ,
           the
           word
           (
           Baronagium
           )
           did
           extend
           to
           all
           Degrees
           and
           Orders
           ;
           for
           they
           came
           to
           all
           great
           Assemblies
           by
           Tenure
           ,
           till
           the
           aforesaid
           time
           of
           Division
           .
        
         
           And
           there
           are
           the
           footsteps
           of
           this
           Ancient
           Right
           still
           amongst
           us
           ,
           in
           that
           the
           Freeholders
           (
           whom
           we
           call
           Free-suitors
           )
           are
           still
           the
           Judges
           of
           that
           Court
           ,
           which
           Anciently
           was
           the
           great
           and
           buisy
           Court
           (
           the
           County
           Court.
           )
           And
           those
           Elections
           that
           are
           still
           remaining
           of
           Trustees
           or
           Representatives
           in
           Parliament
           ,
           and
           of
           divers
           Legal
           Officers
           ,
           which
           must
           be
           by
           Freeholders
           only
           ,
           and
           the
           persons
           to
           be
           chosen
           ,
           ought
           to
           be
           out
           of
           the
           Freeholders
           themselves
           .
        
         
           And
           so
           much
           of
           the
           Ancient
           Constitution
           of
           a
           Baron
           still
           remains
           ,
           as
           that
           in
           his
           Creation
           he
           must
           be
           entitled
           of
           some
           place
           ,
           that
           it
           may
           favour
           of
           the
           Realty
           ,
           and
           make
           the
           Honour
           and
           Title
           Inheritable
           .
        
         
           And
           the
           Baron
           still
           continues
           his
           Freedom
           from
           Arrests
           ,
           as
           having
           by
           presumption
           of
           Law
           ,
           an
           Estate
           in
           Land
           ,
           which
           will
           make
           him
           liable
           to
           Justice
           :
           And
           therefore
           a
           Distringas
           shall
           issue
           out
           against
           him
           instead
           of
           a
           Capias
           .
           And
           the
           Law
           will
           allow
           of
           no
           Averment
           against
           a
           Peer
           ,
           that
           he
           hath
           no
           Lands
           whereby
           to
           distrain
           or
           to
           levy
           Issues
           upon
           .
        
         
           No
           doubt
           but
           the
           Lords
           had
           from
           the
           time
           of
           this
           great
           Division
           ever
           since
           ,
           a
           very
           large
           ,
           though
           not
           an
           universal
           Jurisdiction
           ;
           nor
           have
           they
           had
           it
           from
           the
           very
           first
           Constitution
           of
           the
           Government
           ,
           as
           is
           by
           some
           pretended
           .
        
         
         
           When
           this
           great
           Assembly
           ,
           this
           great
           and
           numerous
           Body
           ,
           was
           divided
           into
           parts
           ,
           no
           doubt
           but
           the
           several
           parts
           did
           (
           as
           the
           Four
           great
           Captains
           after
           the
           Death
           of
           Alexander
           the
           Great
           did
           )
           assume
           and
           take
           to
           themselves
           by
           Agreement
           ,
           several
           shares
           of
           the
           power
           that
           was
           then
           dissolv'd
           .
        
         
           The
           Lords
           took
           a
           large
           share
           ,
           and
           the
           Commons
           ,
           (
           for
           so
           now
           they
           began
           to
           be
           distinguish'd
           )
           took
           the
           rest
           ;
           and
           we
           may
           reasonably
           suppose
           it
           was
           confirm'd
           by
           some
           Law
           that
           then
           pass'd
           ,
           and
           hath
           been
           since
           lost
           .
        
         
           And
           the
           like
           presumption
           we
           know
           is
           made
           by
           our
           Courts
           of
           Law
           in
           many
           like
           cases
           :
           And
           it
           is
           well
           known
           that
           the
           Parliament
           -
           Rolls
           of
           that
           time
           are
           all
           lost
           .
        
         
           And
           the
           best
           Rule
           whereby
           to
           judge
           what
           was
           allotted
           to
           each
           ,
           will
           be
           by
           ancient
           ,
           constant
           ,
           quiet
           ,
           and
           uninterrupted
           Usage
           and
           Practice
           .
           
             Usus
             &
             consuetudo
             est
             Lex
             Parliamenti
             .
          
        
         
           The
           House
           of
           Lords
           did
           exercise
           a
           Jurisdiction
           in
           cases
           of
           Appeals
           for
           Criminal
           Causes
           ,
           till
           by
           the
           Act
           of
           1
           mo
           .
           of
           Henry
           the
           4
           
             th
             c.
          
           14.
           they
           were
           restrain'd
           .
        
         
           That
           Act
           doth
           Ordain
           ,
           That
           
             from
             thenceforth
             no
             Appeals
             shall
             be
             pursued
             in
             Parliament
             ,
          
           the
           Exposition
           of
           which
           Statute
           must
           be
           made
           by
           observing
           the
           mischiefs
           that
           occasion'd
           the
           making
           of
           that
           Law
           ,
           and
           the
           constant
           practice
           after
           it
           .
        
         
           The
           preamble
           recites
           ,
           That
           many
           Mischiefs
           did
           often
           arise
           by
           Appeals
           :
           And
           the
           History
           of
           the
           times
           of
           King
           Richard
           the
           2
           d.
           (
           the
           next
           preceding
           King
           )
           tells
           us
           what
           those
           Mischiefs
           were
           :
           When
           in
           that
           disorderly
           troublesome
           Reign
           ,
           the
           Lords
           were
           so
           divided
           into
           Feuds
           and
           Factions
           ,
           that
           the
           Lords
           (
           who
           were
           to
           be
           the
           Judges
           )
           became
           Parties
           ,
           and
           were
           Appellants
           one
           against
           another
           .
           This
           was
           the
           mischief
           .
        
         
           Then
           for
           the
           practice
           after
           the
           making
           of
           that
           Act
           ,
           that
           Law
           was
           never
           intended
           according
           to
           the
           generality
           of
           the
           words
           ,
           to
           exclude
           all
           Appeals
           whatsoever
           ,
           but
           such
           only
           as
           were
           at
           the
           suit
           of
           private
           persons
           .
        
         
           For
           the
           constant
           practice
           hath
           been
           ,
           ever
           since
           ,
           as
           well
           as
           before
           ,
           to
           admit
           of
           Appeals
           in
           Parliament
           ,
           when
           they
           come
           to
           the
           Lords
           by
           Impeachment
           from
           the
           Commons
           .
        
         
           The
           Lords
           had
           ,
           and
           still
           retain
           ,
           the
           Jurisdiction
           over
           their
           own
           Members
           ,
           for
           trial
           of
           Peers
           in
           cases
           Capital
           .
        
         
           The
           Lords
           had
           ,
           and
           still
           have
           the
           Jurisdiction
           in
           Writs
           of
           Error
           ,
           to
           examine
           Judgments
           given
           in
           the
           King's-Bench
           ;
           but
           this
           was
           under
           certain
           Rules
           ,
           and
           with
           some
           restraint
           ;
           for
           constant
           and
           quiet
           usage
           and
           practice
           do
           warrant
           all
           these
           .
        
         
           Let
           us
           enquire
           into
           the
           
             placita
             Parliamentaria
          
           ,
           I
           mean
           those
           that
           are
           publish'd
           by
           Mr.
           Ryley
           ,
           of
           the
           times
           of
           King
           Edward
           the
           First
           ,
           King
           Edward
           the
           Second
           ,
           &c.
           and
           observe
           what
           light
           they
           give
           us
           .
        
         
           The
           true
           Title
           of
           those
           Pleas
           are
           
             Placita
             coram
             ipso
             domino
             Rege
             &
             ejus
             .
             Concilio
             ,
             ad
             Parliamenta
             sua
             .
          
           In
           which
           Titles
           ,
           
             Regis
             Concilium
             ,
             &
             Parliamentum
          
           ,
           seem
           to
           be
           distinguish'd
           ,
           and
           to
           signify
           two
           several
           things
           (
           as
           in
           truth
           they
           did
           .
           )
        
         
           When
           and
           how
           came
           these
           Pleas
           to
           be
           discontinued
           ever
           since
           
           the
           time
           of
           Edward
           the
           4
           th
           ?
           When
           did
           the
           Law
           pass
           that
           restrain'd
           them
           ?
           We
           have
           not
           one
           such
           Plea
           to
           any
           effect
           ,
           between
           the
           time
           of
           King
           Edward
           the
           Fourth
           ,
           and
           the
           time
           of
           King
           Iames
           the
           First
           ,
           nor
           from
           thence
           to
           this
           day
           ,
           near
           300
           years
           .
           What
           is
           come
           in
           the
           place
           of
           them
           ?
        
         
           The
           
             Placita
             Parliamentaria
          
           were
           in
           a
           strict
           and
           regular
           form
           of
           Pleadings
           .
           The
           Petition
           of
           Declaration
           ,
           the
           Plea
           ,
           the
           Replication
           ,
           the
           Rejoinder
           ,
           and
           the
           Continuances
           entred
           upon
           Record
           in
           Latin
           ,
           and
           the
           process
           was
           by
           Latin
           Writs
           ;
           and
           all
           the
           Proceedings
           entred
           upon
           Record
           in
           Latin
           ,
           as
           Proceedings
           at
           the
           Common-Law
           ought
           to
           be
           .
           How
           came
           this
           to
           be
           altered
           ?
           All
           of
           later
           times
           (
           at
           least
           before
           the
           Lords
           )
           are
           in
           English
           ,
           and
           the
           process
           are
           English
           Orders
           only
           .
        
         
           Had
           these
           Placita
           been
           before
           the
           Lords
           ,
           how
           happens
           it
           that
           there
           are
           so
           few
           (
           if
           any
           )
           Reports
           among
           them
           of
           Pleadings
           upon
           Writs
           of
           Error
           ,
           which
           the
           Lords
           claim
           as
           out
           of
           all
           dispute
           to
           be
           within
           their
           Jurisdiction
           ?
           Hardly
           any
           of
           these
           are
           to
           be
           found
           amongst
           them
           ;
           and
           these
           had
           been
           worthy
           Reporting
           ,
           being
           in
           matters
           difficult
           ,
           weighty
           ,
           and
           full
           of
           Learning
           .
        
         
           What
           was
           this
           
             Regis
             Concilium
          
           (
           so
           constantly
           mention'd
           )
           in
           these
           Pleas
           ,
           as
           those
           before
           whom
           they
           were
           held
           ?
        
         
           ☞
           Amongst
           these
           Records
           and
           Pleas
           ,
           we
           find
           
             All
             the
             Peers
          
           themselves
           in
           a
           Body
           several
           times
           petitioning
           to
           the
           King
           and
           this
           Council
           ,
           and
           receiving
           Orders
           and
           Rules
           from
           that
           Council
           .
        
         
           It
           is
           absurd
           to
           think
           ,
           that
           all
           the
           Lords
           in
           a
           body
           would
           petition
           to
           themselves
           ;
           as
           at
           the
           Parliament
           held
           14
           th
           of
           Edward
           the
           Ryley's
           
             Placita
             Parliamentaria
          
           ,
           pag.
           425.
           
        
         
           
             Ex
             parte
             Praelatorum
             ,
             Comitum
             ,
             Baronum
             ,
             &
             aliorum
             ,
             porrecta
             est
             petitio
             in
             hoc
             Parliamento
             ,
             in
             haec
             verba
             .
          
        
         
           
             A
             nostre
             Senior
             le
             Roy
          
           &
           a
           Son
           Counceil
           
             monstrent
             les
             Erce-evesque
             Praelats
             ,
             Counts
             ,
             &
             Barons
             ,
             &
             les
             auters
             grantz
             Seigniors
             dela
             terre
             .
          
        
         
           Concerning
           payment
           of
           Escuage
           .
           And
           the
           Answer
           to
           this
           Petition
           is
           ,
           
             per
             Concilium
             Regis
          
           ,
           the
           like
           
             ib.
             pag.
          
           448.
           
        
         
           We
           have
           another
           Example
           of
           it
           in
           the
           Appendix
           to
           that
           Book
           ,
           viz.
           of
           the
           time
           of
           18
           Edward
           the
           Second
           ,
           pag.
           619.
           wherein
           the
           Lords
           in
           a
           body
           pray
           liberty
           to
           approve
           or
           improve
           their
           Mannors
           ,
           without
           the
           King's
           License
           .
           And
           the
           Answer
           to
           it
           is
           ,
           That
           it
           could
           not
           be
           done
           without
           a
           new
           Law
           ,
           to
           which
           the
           Commons
           would
           not
           consent
           .
        
         
           It
           is
           evident
           in
           those
           Records
           and
           Pleas
           ,
           that
           others
           are
           mention'd
           to
           be
           of
           that
           Council
           ,
           then
           the
           Peers
           ,
           as
           pag.
           266
           ,
           and
           331.
           
        
         
           There
           is
           an
           Inhibition
           by
           the
           Treasurer
           ,
           and
           the
           
             Concilium
             Regis
          
           ,
           not
           to
           deliver
           a
           Prisoner
           ;
           and
           page
           386.
           14
           
             th
             Edward
          
           2.
           the
           King
           appointed
           who
           should
           receive
           Petitions
           at
           the
           Parliament
           ,
           and
           who
           should
           Answer
           them
           :
           And
           those
           that
           were
           appointed
           to
           Answer
           them
           are
           called
           
             Triers
             of
             Petitions
          
           :
           These
           seem
           to
           be
           the
           persons
           that
           made
           the
           great
           Council
           ,
           or
           the
           King's
           Council
           ,
           (
           as
           they
           are
           called
           in
           those
           Records
           .
           )
           These
           in
           Parliaments
           of
           late
           have
           been
           wholly
           discontinued
           .
        
         
           We
           find
           this
           Council
           ,
           while
           they
           were
           in
           being
           ,
           sate
           in
           Places
           ,
           where
           
           we
           cannot
           reasonably
           suppose
           that
           the
           House
           of
           Lords
           ever
           sate
           ;
           as
           pag.
           87.
           in
           Mr.
           Ryley's
           
             Placita
             Parliamentaria
             ,
             Coràm
             Rege
             &
             Concilio
             apud
             Lond.
             in
             domo
             Ottonis
             de
             Grandissono
             ,
             extra
             palatium
             ipsius
             Domini
             Regis
             apud
             Westmonasterium
             .
          
           And
           pag.
           98.
           at
           Bergavenny
           ;
           and
           pag.
           108.
           at
           
             Stilbeneth
             .
             extra
             London
          
           ,
           which
           I
           suppose
           is
           meant
           of
           Stepney
           .
        
         
           And
           the
           Judges
           are
           mentioned
           as
           Members
           of
           this
           Council
           ,
           pag.
           140.
           not
           meer
           Assistants
           .
        
         
           Now
           we
           come
           to
           Writs
           of
           Error
           ;
           wherein
           it
           is
           generally
           admitted
           ,
           that
           the
           Lords
           have
           a
           Jurisdiction
           ,
           and
           from
           thence
           (
           as
           I
           suppose
           )
           it
           is
           inferr'd
           by
           a
           parity
           of
           Reason
           ,
           that
           they
           likewise
           have
           a
           Jurisdiction
           in
           Appeals
           from
           Courts
           of
           Equity
           .
           An
           Appeal
           from
           a
           Decree
           in
           Equity
           being
           something
           of
           the
           same
           nature
           with
           a
           Writ
           of
           Error
           at
           the
           Common-Law
           .
        
         
           It
           is
           true
           our
           Law-Books
           are
           full
           of
           this
           Title
           ,
           and
           speak
           of
           Error
           sued
           in
           Parliament
           .
           But
           under
           favour
           it
           is
           not
           of
           an
           universal
           Jurisdiction
           in
           all
           Cases
           of
           Erroneous
           Judgments
           ,
           but
           with
           divers
           Restrictions
           ,
           and
           under
           certain
           Rules
           in
           our
           Law-Books
           .
        
         
           It
           hath
           been
           often
           Resolv'd
           ,
           that
           the
           Lords
           cannot
           proceed
           upon
           any
           Writ
           of
           Error
           ,
           till
           first
           the
           King
           hath
           Sign'd
           a
           Petition
           for
           the
           Allowance
           of
           a
           Writ
           of
           Error
           to
           be
           sued
           out
           .
        
         
           As
           in
           the
           Year-book
           of
           22
           Edward
           the
           3
           
             d.
             Fol.
          
           3.
           
           It
           is
           there
           held
           ,
           that
           a
           Writ
           of
           Error
           in
           Parliament
           lies
           not
           ,
           till
           the
           King
           be
           petition'd
           for
           it
           ,
           and
           till
           the
           King
           have
           Sign'd
           the
           Petition
           .
           Which
           Signing
           is
           indeed
           the
           Commission
           which
           gives
           the
           Authority
           .
        
         
           And
           in
           the
           case
           of
           
             Edward
             Hadelow
          
           ,
           
           where
           Judgment
           was
           given
           for
           the
           King
           :
           Upon
           the
           King's
           Signing
           a
           Petition
           for
           a
           Writ
           of
           Error
           ,
           and
           the
           Writ
           sued
           out
           ,
           the
           Roll
           in
           which
           the
           Judgment
           was
           entred
           ,
           was
           brought
           by
           Sir
           
             William
             Thorp
          
           ,
           Chief-Justice
           of
           the
           King's-Bench
           ,
           into
           the
           Parliament
           :
           Upon
           which
           the
           King
           assign'd
           certain
           Earls
           and
           Barons
           ,
           and
           with
           them
           the
           Iustices
           ,
           to
           hear
           and
           determine
           the
           business
           :
           And
           before
           it
           was
           determin'd
           ,
           the
           Parliament
           was
           ended
           ;
           yet
           the
           Commissioners
           sate
           still
           ,
           but
           the
           King
           was
           gone
           .
        
         
           And
           it
           was
           urged
           before
           the
           Delegates
           (
           for
           so
           they
           are
           called
           )
           That
           the
           Judgment
           could
           not
           be
           Revers'd
           ,
           except
           in
           Parliament
           ;
           and
           there
           it
           is
           said
           ,
           that
           the
           King
           hath
           no
           Peer
           in
           his
           Land
           ,
           and
           that
           they
           cannot
           judge
           the
           King.
           
        
         
           How
           came
           that
           in
           to
           Debate
           ?
           Why
           it
           was
           in
           the
           Case
           of
           an
           Outlawry
           ,
           which
           is
           always
           for
           the
           King's
           benefit
           ;
           and
           where
           the
           King
           is
           concern'd
           ,
           the
           Lords
           have
           no
           Jurisdiction
           without
           the
           King's
           allowance
           ;
           and
           the
           King
           doth
           not
           think
           fit
           to
           refer
           it
           to
           the
           whole
           House
           of
           Lords
           ;
           yet
           the
           King
           will
           have
           Justice
           done
           ,
           and
           he
           will
           be
           inform'd
           if
           the
           Outlawry
           were
           duly
           sued
           out
           .
           But
           the
           King
           himself
           assigns
           the
           persons
           that
           shall
           judge
           of
           it
           ;
           And
           yet
           it
           is
           said
           ,
           that
           this
           is
           suing
           Error
           in
           Parliament
           ;
           for
           when
           the
           Parliament
           is
           risen
           ,
           it
           is
           held
           that
           the
           Delegates
           appointed
           by
           the
           King
           could
           not
           proceed
           :
           So
           that
           Pleas
           may
           be
           held
           in
           Parliament
           by
           the
           King
           and
           his
           Council
           ,
           such
           as
           he
           shall
           specially
           appoint
           for
           that
           purpose
           at
           every
           Parliament
           .
        
         
         
           And
           yet
           they
           may
           be
           stiled
           
             Placita
             Parliamentaria
          
           ,
           being
           transacted
           only
           in
           time
           of
           Parliament
           ,
           but
           not
           by
           the
           Parliament
           .
        
         
           This
           case
           of
           
             Edward
             Hadelow
          
           teaches
           the
           true
           nature
           and
           course
           of
           a
           Writ
           of
           Error
           in
           Parliament
           ,
           and
           the
           right
           method
           of
           proceeding
           upon
           it
           ,
           and
           the
           King's
           Prerogative
           in
           it
           :
           And
           how
           that
           case
           wherein
           the
           King
           is
           any
           way
           concern'd
           in
           interest
           ,
           (
           as
           he
           is
           in
           cases
           of
           Outlawry
           )
           shall
           be
           Examin'd
           by
           none
           but
           such
           as
           are
           specially
           assign'd
           by
           the
           King.
           
        
         
           See
           the
           case
           in
           the
           Year-Book
           of
           1
           mo
           Hen.
           the
           7
           
             th
             .
             Fol.
          
           19.
           
           Flourdew's
           case
           .
        
         
           By
           Advice
           of
           all
           the
           Judges
           in
           the
           Exchequer-Chamber
           ,
           which
           is
           a
           case
           Reported
           in
           Latin
           ;
        
         
           
             Oportet
             partem
             habere
             billam
             de
             Rege
             indorsatam
             :
             Et
             super
             hoc
             Cancellarius
             faciet
             breve
             de
             Errore
             ,
             Et
             tunc
             capitalis
             Iusticiarius
             de
             banco
             Regis
          
           ;
           (
           so
           that
           it
           is
           only
           from
           the
           Court
           of
           King's-Bench
           ,
           but
           no
           other
           Court
           )
           
             Secum
             adducet
             in
             Parliamento
             breve
             de
             Errore
             ,
             Et
             praedictam
             billam
             sic
             indorsatam
             .
          
           And
           the
           Clerk
           of
           the
           Parliament
           is
           to
           have
           the
           keeping
           of
           the
           Bill
           Endors'd
           ;
           This
           proves
           that
           it
           is
           their
           Commission
           by
           which
           they
           proceed
           ,
           and
           it
           must
           remain
           with
           the
           Clerk
           of
           the
           Parliament
           ,
           not
           with
           the
           Chancellor
           .
        
         
           The
           Lord
           Dyer's
           Reports
           ,
           23.
           
           
             Eliz.
             Fol.
          
           375.
           
             tit
             .
             Error
             .
             Plac.
          
           19.
           there
           is
           a
           Supplication
           Sign'd
           by
           the
           Queen
           ,
           for
           a
           Writ
           of
           Error
           .
        
         
           We
           have
           another
           Precedent
           in
           Sir
           More
           's
           Reports
           .
           Fol.
           834.
           in
           the
           case
           of
           Heydon
           and
           
             Sheppard
             .
             pasc
          
           .
           12.
           
           Iac.
           1
           mi
           The
           like
           in
           Leornard's
           Reports
           the
           3
           d.
           part
           .
           Fol.
           160.
           in
           the
           case
           of
           the
           Queen
           and
           Hurlston
           .
        
         
           Now
           concerning
           Proceedings
           in
           Equity
           in
           general
           ,
           the
           English
           Court
           of
           Chancery
           ,
           (
           the
           Court
           of
           Equity
           there
           )
           it
           hath
           not
           been
           of
           any
           great
           Antiquity
           ,
           and
           upon
           what
           Legal
           Foundation
           it
           stands
           ,
           is
           not
           easily
           to
           be
           affirm'd
           :
           As
           I
           have
           made
           appear
           in
           a
           larger
           Treatise
           ,
           
             Of
             the
             Original
             of
             the
             Iurisdiction
             of
             the
             Chancery
             in
             matters
             of
             Equity
          
           ;
           To
           which
           I
           refer
           my
           Reader
           .
        
         
           Our
           Ancient
           Authors
           ,
           as
           the
           Mirror
           of
           
             Iustices
             ,
             Glanvil
             ,
             Bracton
             ,
             Briton
             ,
          
           and
           Fleta
           ,
           although
           they
           treat
           of
           the
           Chancery
           ,
           as
           it
           proceeds
           according
           to
           the
           Rules
           of
           the
           Common-Law
           ,
           viz.
           in
           Repealing
           of
           Patents
           ,
           and
           in
           Cases
           Priviledg'd
           ,
           yet
           none
           of
           them
           do
           once
           mention
           the
           Court
           of
           Equity
           there
           ;
           and
           yet
           their
           undertakings
           were
           to
           treat
           of
           all
           the
           several
           Courts
           then
           in
           being
           ,
           which
           proves
           the
           Court
           of
           Equity
           in
           Chancery
           was
           not
           then
           in
           being
           .
        
         
           It
           hath
           been
           adjudg'd
           ,
           26.
           and
           27.
           
           Eliz.
           in
           the
           King's-Bench
           in
           Perrot's
           ,
           and
           in
           
             Marmaduke
             Langdales
             Case
             .
             Cok.
          
           12.
           
           
             Rep.
             Fol.
          
           52.
           
           That
           a
           Court
           of
           Equity
           cannot
           be
           Erected
           by
           Patent
           ,
           but
           only
           by
           Act
           of
           Parliament
           ,
           or
           by
           Prescription
           .
        
         
           And
           the
           Chancery
           hath
           no
           Prescription
           for
           a
           Court
           of
           Equity
           ,
           as
           appears
           by
           those
           Ancient
           Authors
           .
        
         
           If
           the
           Chancery
           it self
           have
           no
           Right
           of
           Prescription
           ,
           then
           there
           is
           no
           Foundation
           for
           any
           Prescription
           in
           Cases
           of
           Appeals
           ▪
           nor
           is
           there
           any
           Act
           of
           Parliament
           that
           gives
           it
           .
        
         
           The
           First
           Decree
           (
           as
           I
           take
           it
           )
           in
           Chancery
           ,
           is
           but
           of
           the
           time
           of
           King
           Richard
           the
           Second
           ;
           and
           that
           was
           Revers'd
           ,
           for
           that
           it
           was
           in
           a
           matter
           properly
           determinable
           at
           the
           Common-Law
           .
        
         
           The
           best
           proofs
           of
           the
           Power
           and
           Jurisdiction
           of
           a
           Court
           are
           the
           Records
           and
           Precedents
           of
           a
           Court
           :
           And
           if
           it
           be
           by
           Prescription
           ,
           it
           must
           appear
           by
           ancient
           and
           frequent
           Precedents
           .
           
             Plowd
             Comment
          
           .
           in
           the
           case
           of
           the
           Mines
           .
           Fol.
           301.
           b.
           
        
         
           And
           if
           any
           Court
           Usurp
           a
           Jurisdiction
           in
           a
           case
           where
           it
           appears
           in
           their
           
           very
           Proceedings
           themselves
           ,
           that
           it
           hath
           no
           lawful
           Jurisdiction
           ;
           what
           they
           do
           in
           such
           case
           is
           
             Coràm
             non
             Iudice
          
           ,
           and
           is
           utterly
           void
           .
        
         
           Now
           concerning
           the
           Exercise
           of
           a
           Jurisdiction
           by
           way
           of
           Appeal
           from
           a
           Court
           of
           Equity
           for
           Error
           in
           their
           Decrees
           ,
           I
           shall
           make
           mention
           of
           the
           very
           Records
           ,
           and
           Acts
           of
           the
           House
           of
           Lords
           .
        
         
           I
           have
           search'd
           into
           the
           Journal
           of
           the
           Lords
           ,
           and
           I
           find
           a
           Record
           or
           Entry
           there
           of
           the
           Parliament
           held
           18
           Iac.
           1.
           
           Anno
           1621.
           
           And
           we
           need
           search
           no
           higher
           ,
           for
           that
           gives
           a
           full
           account
           of
           all
           the
           times
           then
           pass'd
           ,
           as
           to
           the
           point
           in
           hand
           ,
           viz.
           Of
           the
           Supreme
           Judicature
           and
           Jurisdiction
           .
        
         
           18
           Iac.
           1.
           
           Fol.
           175.
           
           Of
           the
           Lord's
           Journal
           ,
           I
           find
           by
           an
           Entry
           of
           the
           30
           th
           of
           November
           in
           that
           year
           ,
           That
           a
           Comittee
           had
           been
           named
           by
           the
           Lords
           to
           take
           into
           consideration
           the
           Customs
           and
           Privileges
           of
           the
           Lord's
           House
           ,
           and
           the
           Privileges
           of
           the
           Peers
           ,
           or
           Lords
           of
           Parliament
           .
        
         
           And
           that
           a
           Sub-Committee
           had
           been
           named
           ,
           who
           had
           express
           power
           to
           reward
           such
           person
           as
           by
           their
           Warrant
           should
           search
           among
           the
           Records
           for
           Privileges
           and
           Customs
           ;
           and
           that
           Mr.
           Selden
           had
           been
           appointed
           for
           that
           purpose
           ,
           and
           had
           taken
           much
           pains
           in
           it
           .
        
         
           I
           observe
           by
           the
           way
           ,
           That
           the
           House
           of
           Lords
           were
           not
           then
           of
           the
           same
           Judgment
           with
           the
           Noble
           Author
           I
           have
           before
           mentioned
           ,
           who
           asserts
           the
           Right
           of
           Judicature
           of
           the
           House
           of
           Peers
           to
           be
           by
           the
           very
           first
           Constitution
           of
           the
           Government
           ,
           Universal
           ,
           and
           in
           all
           Causes
           whatsoever
           ,
           unless
           restrain'd
           by
           some
           Act
           of
           Parliament
           .
        
         
           Had
           that
           been
           true
           ,
           there
           had
           been
           no
           need
           to
           search
           for
           Precedents
           to
           warrant
           their
           Proceedings
           in
           any
           case
           .
           It
           had
           been
           sufficient
           to
           justify
           the
           Proceedings
           ,
           if
           no
           Act
           of
           Parliament
           could
           be
           found
           to
           restrain
           them
           in
           any
           such
           case
           ;
           the
           labour
           of
           which
           would
           have
           been
           properly
           on
           his
           part
           that
           would
           presume
           to
           dispute
           their
           Jurisdiction
           .
        
         
           No
           ,
           the
           Lords
           took
           the
           right
           course
           to
           examine
           it
           ;
           if
           there
           were
           no
           Precedents
           ,
           the
           Lords
           concluded
           that
           then
           they
           had
           no
           Right
           to
           a
           Jurisdiction
           ;
           and
           no
           Persons
           ,
           nor
           Court
           ,
           can
           assume
           to
           themselves
           at
           their
           own
           will
           ,
           any
           Authority
           or
           Jurisdiction
           ;
           
             Quis
             me
             constituit
             Iudicem
          
           ?
           said
           our
           Blessed
           Saviour
           ,
           there
           must
           be
           a
           constitution
           of
           it
           .
           And
           it
           was
           properly
           enough
           ask'd
           by
           the
           Scribes
           and
           Pharisees
           of
           our
           Saviour
           ,
           
             Who
             gave
             thee
             this
             Authority
          
           ?
        
         
           I
           would
           observe
           too
           ,
           that
           the
           Sub-Committee
           of
           the
           Lords
           employ'd
           for
           that
           purpose
           ,
           (
           of
           searching
           for
           Precedents
           )
           a
           person
           ,
           who
           was
           in
           his
           Element
           ,
           (
           the
           Famous
           Selden
           )
           ;
           no
           Record
           could
           escape
           his
           discovery
        
         
           Further
           in
           the
           208
           th
           Folio
           of
           that
           Journal
           of
           the
           18
           th
           year
           of
           King
           Iames
           ,
           on
           the
           14
           th
           of
           December
           ,
           the
           then
           Archbishop
           of
           Canterbury
           (
           for
           he
           ,
           it
           seems
           ,
           took
           special
           care
           of
           it
           )
           mentions
           in
           his
           Report
           to
           the
           Lords
           the
           Proceedings
           of
           that
           Committee
           ,
           viz.
           A
           Collection
           made
           of
           Customs
           and
           Orders
           of
           the
           Lord's
           House
           ,
           and
           of
           their
           Privileges
           made
           out
           of
           Records
           :
           And
           he
           presented
           that
           Collection
           to
           the
           House
           ,
           and
           desir'd
           it
           might
           be
           preserv'd
           as
           a
           Memorial
           whereunto
           men
           may
           resort
           as
           occasion
           should
           require
           ,
           and
           make
           use
           of
           it
           .
           It
           was
           thereupon
           ordered
           by
           the
           House
           ,
           to
           be
           delivered
           to
           the
           Clerk
           to
           be
           kept
           for
           that
           purpose
           .
        
         
           So
           that
           this
           was
           intended
           by
           the
           whole
           House
           of
           Lords
           to
           be
           a
           Standard
           ,
           whereby
           to
           measure
           and
           judge
           of
           their
           Jurisdiction
           and
           Privileges
           for
           the
           future
           .
        
         
           I
           find
           the
           Title
           of
           that
           Committee
           ,
           Fol.
           91.
           to
           be
           ,
           
             A
             Committee
             for
             searching
             for
          
           Precedents
           for
           Judicature
           ,
           
             Accusations
             and
             Iudgments
          
           ,
           anciently
           used
           
             in
             this
             High-Court
             of
             Parliament
          
           .
        
         
         
           This
           shows
           ,
           it
           must
           be
           an
           ancient
           Usage
           or
           nothing
           .
           Therefore
           late
           and
           modern
           Usage
           and
           Precedents
           ,
           are
           ,
           in
           the
           Judgment
           of
           the
           Lords
           ,
           of
           no
           great
           Weight
           ,
           to
           Entitle
           them
           to
           a
           Jurisdiction
           .
        
         
           Moreover
           ,
           Fol.
           105.
           of
           that
           Journal
           ,
           there
           is
           an
           Order
           made
           ,
           27.
           
           Mar.
           1621.
           for
           Collection
           of
           Money
           among
           the
           Peers
           to
           pay
           the
           Charge
           for
           searching
           for
           Records
           in
           the
           Tower
           ,
           and
           elsewhere
           ,
           and
           to
           have
           Copies
           of
           them
           certifi'd
           under
           the
           Officer's
           hands
           .
           Every
           Earl
           and
           Viscount
           was
           to
           pay
           Forty
           Shillings
           ,
           and
           every
           Bishop
           and
           Baron
           Twenty
           Shillings
           .
        
         
           I
           have
           perus'd
           that
           Book
           ,
           Entitled
           ,
           
             A
             Collection
             of
             Privileges
             or
             special
             Rights
             ,
             belonging
             to
             the
             Baronage
             of
          
           England
           .
        
         
           What
           is
           meant
           by
           that
           Title
           ,
           appears
           by
           the
           Table
           to
           the
           Book
           ,
           which
           consists
           of
           these
           Heads
           following
           ,
           viz.
           
        
         
           
             1
             
               st
               Iudgments
            
          
           
             Of
             Offences
             Capital
             .
             
               Fol.
               11.
            
             b.
             
          
           
             1
             
               st
               Iudgments
            
          
           
             Of
             Offences
             not
             Capital
             .
             
               Fol.
               25.
            
             
          
           
             1
             
               st
               Iudgments
            
          
           
             Upon
             Writs
             of
             Error
             in
             Parliament
             .
             
               Fol.
               88.
            
             
          
        
         
           Another
           Head
           ,
           is
           ,
           The
           Lords
           appointing
           Judges
           out
           of
           themselves
           ,
           for
           Examination
           of
           Judgments
           in
           other
           Courts
           ,
           Fol.
           95.
           
        
         
           I
           thought
           this
           last
           Head
           ,
           or
           Title
           ,
           might
           afford
           something
           to
           our
           purpose
           ,
           relating
           to
           Appeals
           .
        
         
           Under
           this
           Head
           there
           is
           nothing
           mention'd
           but
           concerning
           Erroneous
           Judgments
           given
           in
           the
           Court
           of
           King's-Bench
           at
           Westminster
           ,
           or
           upon
           the
           Statute
           of
           27
           
             Elizabeth
             ,
             Cap.
          
           8.
           
           Of
           Judgments
           given
           in
           the
           Exchequer-Chamber
           ,
           by
           the
           Judges
           of
           the
           Common-pleas
           ,
           and
           the
           Barons
           of
           the
           Exchequer
           ,
           upon
           Error
           to
           Examine
           Judgments
           given
           in
           the
           King's-Bench
           ;
           from
           whence
           Error
           lies
           also
           before
           the
           Lords
           ,
           by
           the
           express
           words
           of
           that
           Statute
           ;
           which
           no
           doubt
           is
           therefore
           a
           very
           Legal
           Power
           and
           Jurisdiction
           in
           the
           Lords
           ,
           being
           Exercis'd
           in
           the
           method
           directed
           by
           Law
           ,
           as
           before
           is
           observ'd
           .
        
         
           The
           Book
           of
           this
           Collection
           expresly
           takes
           notice
           ,
           That
           no
           Writ
           of
           Error
           lies
           in
           Parliament
           upon
           a
           Judgment
           given
           in
           the
           Court
           of
           Common-Pleas
           ,
           till
           that
           Judgment
           have
           been
           Revers'd
           ,
           or
           Affirm'd
           in
           the
           King's-Bench
           .
           As
           it
           was
           answer'd
           in
           Parliament
           ,
           in
           the
           Case
           of
           the
           Bishop
           of
           
             Norwich
             .
             Rot.
             Parl.
          
           50.
           
           E.
           3.
           
           Articl
           .
           48.
           
        
         
           The
           like
           Resolution
           did
           the
           Lords
           give
           after
           Hearing
           all
           the
           Judges
           ,
           and
           long
           Consultation
           ,
           and
           a
           referring
           the
           Consideration
           of
           that
           matter
           to
           a
           numerous
           Committee
           of
           the
           Lords
           ,
           in
           a
           Case
           of
           the
           late
           Earl
           of
           Macclesfeld
           ;
           wherein
           that
           Earl
           was
           Plaintiff
           in
           the
           Exchequer
           ,
           in
           an
           Action
           of
           Slander
           ,
           and
           Judgment
           there
           in
           that
           Court
           given
           against
           him
           ;
           whereupon
           the
           said
           Earl
           (
           since
           this
           last
           Revolution
           )
           sued
           Error
           before
           the
           Lords
           ,
           passing
           by
           the
           method
           directed
           by
           the
           Stat.
           of
           31.
           
           E.
           3.
           
           Cap.
           12.
           for
           Suing
           Error
           upon
           Judgments
           given
           in
           the
           Exchequer
           ;
           And
           the
           Lords
           were
           upon
           the
           very
           point
           of
           Reversing
           that
           Judgment
           in
           the
           Exchequer
           ;
           but
           being
           by
           one
           of
           the
           said
           Judges
           then
           also
           sitting
           on
           the
           Upper
           Wooll-sack
           ,
           put
           in
           mind
           of
           that
           Stat.
           of
           E.
           3.
           they
           did
           forbear
           to
           proceed
           to
           do
           any
           more
           upon
           it
           ,
           referring
           it
           to
           the
           Order
           limited
           by
           that
           Statute
           .
        
         
           This
           proves
           ,
           That
           the
           Lords
           are
           tied
           to
           a
           method
           too
           ,
           in
           cases
           where
           they
           have
           a
           Rightful
           Jurisdiction
           :
           They
           must
           not
           take
           it
           
             ad
             primam
             Instantiam
          
           ,
           nor
           
             per
             Saltum
          
           .
        
         
           In
           that
           Collection
           I
           have
           mentioned
           ,
           under
           that
           Lemma
           of
           
             Examination
             of
             Iudgments
             in
             other
             Courts
          
           (
           which
           is
           comprehensive
           enough
           )
           I
           find
           notice
           taken
           
           of
           Hadelow's
           Case
           .
           22.
           
           E.
           3.
           
           Fol.
           3.
           and
           Flourdew's
           Case
           ,
           1
           H.
           7.
           
           Fol.
           20.
           which
           I
           cited
           before
           at
           large
           .
           And
           these
           concern
           only
           Cases
           of
           Erroneous
           Judgments
           in
           the
           King's-Bench
           .
        
         
           Under
           the
           Title
           of
           
             Offences
             not
             Capital
          
           ,
           there
           is
           mention
           of
           no
           case
           but
           upon
           Accusations
           for
           Criminal
           Causes
           .
        
         
           It
           begins
           with
           Latimer's
           Accusation
           of
           
             Iohn
             at
             Lee
          
           for
           Offences
           against
           the
           State.
           
        
         
           It
           mentions
           the
           Case
           of
           
             Richard
             Lyons
          
           ,
           for
           procuring
           of
           Patents
           for
           private
           advantage
           ,
           and
           of
           the
           new
           Impositions
           without
           Parliament
           .
        
         
           It
           instances
           in
           the
           Case
           of
           William
           Lord
           Latimer
           accus'd
           by
           the
           Commons
           ,
           And
           the
           Case
           of
           
             Alice
             Peirse
          
           .
        
         
           And
           the
           Case
           in
           7
           Richard
           the
           2
           
             d
             num
          
           .
           11.
           of
           
             Michael
             de-la-Pool
          
           ,
           Chancellor
           of
           England
           ,
           accus'd
           by
           
             Iohn
             Cavendish
          
           of
           London
           ,
           Fishmonger
           ,
           for
           Bribery
           .
        
         
           And
           the
           Earl
           of
           Northumberland's
           Case
           ,
           5
           H.
           4.
           num
           .
           26.
           and
           Thorpe's
           Case
           ;
           but
           they
           are
           all
           in
           Criminal
           Causes
           .
        
         
           While
           this
           Committee
           was
           in
           being
           ,
           I
           meet
           with
           an
           Appeal
           made
           to
           the
           Lords
           from
           a
           Decree
           made
           in
           Chancery
           :
           And
           (
           as
           I
           take
           it
           ,
           )
           't
           is
           a
           decree
           made
           by
           the
           Lord
           Bacon
           (
           though
           he
           is
           not
           named
           by
           his
           name
           )
           it
           is
           Fol.
           181.
           in
           the
           Journal
           of
           the
           Parliament
           ,
           18.
           
           Iac.
           1621.
           
        
         
           The
           Third
           of
           December
           in
           that
           Parliament
           ,
           Sir
           
             Iohn
             Bourchier
          
           by
           Petition
           Appeals
           to
           the
           Lords
           from
           a
           Decree
           in
           Chancery
           ,
           wherein
           he
           himself
           was
           Plaintiff
           against
           
             Iohn
             Mompessom
          
           and
           others
           ,
           and
           there
           were
           cross
           Suits
           ,
           and
           they
           were
           about
           Accounts
           between
           them
           .
           And
           Sir
           
             Iohn
             Bourchier
          
           had
           a
           Sum
           of
           Money
           decreed
           to
           him
           ,
           but
           not
           for
           so
           much
           as
           he
           thought
           was
           due
           ;
           and
           therefore
           he
           Appealed
           ,
           and
           complain'd
           in
           his
           Petition
           to
           the
           Lords
           ,
           of
           an
           
             hasty
             Hearing
          
           of
           his
           Cause
           in
           Chancery
           ,
           and
           that
           his
           Witnesses
           were
           not
           heard
           ,
           and
           uses
           the
           very
           formal
           word
           of
           Appeal
           in
           his
           Petition
           .
        
         
           Fol.
           188.6
           .
           December
           ,
           It
           was
           referr'd
           to
           the
           Lords
           Committees
           for
           Privileges
           ,
           to
           consider
           whether
           it
           were
           a
           formal
           Appeal
           ,
           or
           not
           .
        
         
           I
           must
           confess
           ,
           it
           doth
           not
           clearly
           appear
           to
           me
           ,
           what
           the
           true
           meaning
           ,
           or
           ground
           of
           that
           Order
           is
           ;
           for
           (
           as
           I
           now
           said
           )
           the
           Petition
           does
           expresly
           use
           the
           word
           (
           Appeal
           .
           )
        
         
           The
           10
           th
           of
           
             December
             Fol.
          
           196.
           
           The
           Lord
           Archbishop
           of
           Canterbury
           Reported
           ,
           That
           divers
           Lords
           Sub-Committees
           appointed
           to
           search
           for
           Precedents
           ,
           ☞
           cannot
           find
           that
           the
           word
           (
           Appeal
           )
           is
           usual
           in
           any
           Petition
           for
           any
           matter
           brought
           before
           them
           .
           This
           deserves
           to
           be
           noted
           .
        
         
           So
           that
           it
           seems
           the
           Lords
           Committees
           understood
           the
           meaning
           of
           their
           Order
           to
           be
           ,
           to
           search
           for
           Precedents
           (
           if
           there
           had
           been
           any
           )
           where
           the
           Lords
           had
           used
           in
           former
           times
           to
           admit
           of
           ,
           and
           to
           receive
           Appeals
           before
           them
           ,
           against
           Decrees
           made
           in
           Chancery
           ,
           or
           in
           any
           Court
           of
           Equity
           .
        
         
           The
           Archbishop
           further
           Reports
           ,
           That
           they
           could
           not
           find
           so
           much
           as
           the
           word
           (
           Appeal
           )
           used
           in
           any
           Petition
           ;
           
           and
           that
           it
           must
           have
           been
           by
           way
           of
           Petition
           ,
           if
           any
           way
           .
           This
           shows
           the
           Novelty
           of
           it
           ;
           for
           he
           likewise
           reports
           ,
           That
           all
           matters
           complain'd
           of
           before
           the
           Lords
           must
           be
           by
           〈◊〉
           Petition
           ,
           and
           in
           no
           other
           Form.
           
        
         
           And
           that
           the
           Ancient
           accustom'd
           Form
           of
           the
           Petitions
           must
           be
           (
           
             To
             the
             King
             and
             his
             Great
             Council
          
           ;
           )
           
           this
           is
           very
           observable
           .
        
         
           Note
           here
           ,
           That
           the
           Direction
           and
           Entitling
           of
           Petitions
           to
           
             the
             Lords
             Spiritual
             and
             Temporal
             in
             Parliament
             Assembled
             ,
          
           omitting
           and
           leaving
           out
           the
           
           King
           in
           the
           Direction
           (
           as
           it
           is
           now
           used
           ,
           and
           hath
           been
           ever
           since
           King
           Charles
           the
           First
           went
           away
           from
           the
           two
           Houses
           in
           1641.
           )
           is
           not
           according
           to
           Ancient
           Form
           and
           Custom
           .
        
         
           And
           that
           the
           Ancient
           accustom'd
           Form
           was
           not
           to
           the
           Lords
           ,
           by
           the
           Title
           of
           the
           Lords
           Spiritual
           and
           Temporal
           assembled
           in
           Parliament
           ,
           as
           now
           used
           ,
           but
           to
           
             the
             Great
             Council
          
           .
        
         
           Whom
           that
           great
           Council
           did
           consist
           of
           ,
           and
           by
           whom
           Nominated
           and
           Constituted
           ,
           I
           have
           made
           some
           conjecture
           ,
           by
           what
           I
           have
           before
           in
           this
           Treatise
           discours'd
           of
           ,
           concerning
           that
           
             Magnum
             Concilium
             in
             Parliamento
          
           ;
           and
           concerning
           the
           ancient
           and
           constant
           usage
           till
           of
           late
           years
           ,
           and
           until
           the
           separation
           between
           the
           said
           King
           Charles
           ,
           and
           the
           Parliament
           ,
           of
           the
           King
           's
           appointing
           
             Triers
             of
             Petitions
          
           in
           every
           Parliament
           .
           Let
           the
           Reader
           take
           occasion
           here
           to
           look
           back
           upon
           what
           I
           have
           herein
           already
           discours'd
           upon
           this
           Subject
           ,
           which
           may
           give
           light
           to
           this
           matter
           .
        
         
           In
           the
           last
           place
           ,
           the
           Archbishop
           reports
           ,
           That
           they
           could
           find
           but
           only
           one
           Precedent
           of
           this
           nature
           ;
           which
           was
           a
           complaint
           by
           Petition
           against
           
             Michael
             de-la-Poole
          
           (
           Lord
           Chancellor
           )
           
             for
             matters
             of
             Corruption
          
           .
        
         
           Which
           Precedent
           I
           have
           mention'd
           before
           ;
           for
           
             Michael
             de-la-Poole
          
           ,
           Lord
           Chancellor
           ,
           was
           accus'd
           in
           the
           Seventh
           year
           of
           King
           Richard
           the
           Second
           ,
           by
           
             Iohn
             Cavendish
          
           of
           London
           Fishmonger
           ,
           for
           Bribery
           .
        
         
           I
           presume
           too
           ,
           according
           to
           the
           usual
           Form
           of
           Petitions
           ,
           (
           as
           the
           Archbishop
           reports
           them
           to
           be
           )
           that
           this
           Petition
           was
           directed
           
             to
             the
             King
             and
             his
             Great
             Council
             ,
          
           and
           not
           
             to
             the
             Lords
          
           ,
           &c.
           
             assembled
             in
             Parliament
          
           .
        
         
           But
           I
           conceive
           this
           only
           Precedent
           (
           as
           the
           Archbishop
           calls
           it
           )
           is
           no
           Precedent
           of
           the
           same
           nature
           ,
           (
           as
           hath
           been
           so
           frequently
           used
           of
           late
           ,
           and
           still
           is
           )
           for
           an
           Appeal
           against
           a
           Decree
           meerly
           for
           Error
           in
           Judgment
           .
        
         
           For
           to
           Err
           in
           Judgment
           in
           making
           a
           Decree
           ,
           and
           for
           the
           Judge
           that
           makes
           the
           Decree
           ,
           to
           receive
           a
           Bribe
           in
           the
           case
           ,
           are
           two
           different
           things
           ;
           for
           to
           Err
           in
           Judgment
           (
           as
           
             Humanum
             est
             Errare
          
           )
           is
           of
           a
           meer
           civil
           Nature
           ;
           but
           to
           be
           corrupt
           ,
           and
           take
           a
           Bribe
           ,
           though
           the
           Decree
           be
           just
           ,
           is
           of
           a
           Criminal
           Nature
           ;
           and
           therefore
           not
           to
           the
           purpose
           of
           what
           we
           are
           discoursing
           .
        
         
           And
           there
           are
           about
           240
           years
           distance
           in
           time
           ,
           between
           this
           only
           Precedent
           ,
           and
           the
           time
           of
           this
           search
           made
           by
           the
           Committee
           of
           Lords
           ,
           viz.
           18.
           
           Iac.
           1.
           (
           a
           large
           Casma
           in
           a
           usage
           and
           custom
           for
           the
           Exercise
           of
           a
           Jurisdiction
           .
        
         
           And
           the
           matter
           in
           hand
           must
           still
           be
           determin'd
           by
           Precedent
           and
           Custom
           .
           
             Consuetudo
             Parliamenti
             est
             Lex
             Parliamenti
          
           ,
           is
           the
           old
           Rule
           .
        
         
           This
           complaint
           by
           Sir
           
             Iohn
             Bourchier
          
           was
           in
           a
           matter
           ,
           not
           of
           Error
           in
           Judgment
           ,
           for
           then
           that
           Error
           must
           in
           particular
           have
           been
           assign'd
           ,
           and
           the
           Judge
           not
           have
           been
           reflected
           upon
           ;
           but
           the
           complaint
           is
           of
           a
           Male-administration
           in
           the
           Judge
           (
           an
           hasty
           Hearing
           ,
           and
           Witnesses
           not
           heard
           .
           )
           And
           therefore
           the
           Lords
           in
           that
           case
           censure
           the
           Petitioner
           for
           casting
           a
           scandal
           upon
           the
           Judge
           .
           For
           the
           Lords
           Examin'd
           the
           matter
           ,
           and
           found
           the
           suggestion
           of
           the
           Petition
           to
           be
           false
           .
           The
           Cause
           had
           had
           a
           deliberate
           Hearing
           ,
           and
           the
           Petitioner's
           Witnesses
           had
           been
           heard
           ;
           yet
           the
           Petitioner
           for
           the
           scandal
           had
           but
           an
           easy
           pennance
           ,
           and
           that
           was
           remitted
           wholly
           ,
           viz.
           to
           acknowledge
           this
           offence
           .
        
         
         
           But
           note
           this
           was
           a
           proceeding
           against
           him
           upon
           his
           own
           Petition
           :
           He
           himself
           Entitled
           the
           Lords
           in
           this
           case
           to
           a
           Jurisdiction
           .
           It
           doth
           not
           appear
           that
           any
           Adverse
           party
           was
           Summon'd
           to
           defend
           it
           ,
           the
           Lord-Keeper
           himself
           defended
           it
           upon
           the
           point
           of
           scandal
           .
        
         
           There
           is
           yet
           another
           most
           Memorable
           Case
           in
           the
           very
           Journal
           of
           the
           Lords
           too
           ,
           and
           that
           is
           Four
           years
           after
           .
           viz.
           22.
           
           Iac.
           1.
           which
           is
           as
           followeth
           ;
           and
           it
           comes
           strongly
           home
           to
           the
           point
           in
           hand
           ,
           viz.
           of
           Appeals
           .
        
         
           28.
           
           
           May
           22.
           
           Iac.
           1.
           
           
             William
             Matthews
          
           petitioned
           against
           
             George
             Matthews
          
           ,
           by
           way
           of
           Appeal
           ,
           in
           the
           House
           of
           Lords
           ,
           and
           question'd
           a
           Decree
           made
           by
           the
           Lord-Keeper
           in
           Chancery
           on
           the
           Defendant's
           behalf
           ,
           from
           which
           Decree
           
             William
             Matthews
          
           Appeal'd
           .
        
         
           It
           is
           to
           be
           found
           in
           the
           Journal
           of
           the
           Lords
           .
           28.
           
           May
           22.
           
           Iac.
           1.
           
        
         
           The
           Lords
           Committees
           ,
           who
           were
           appointed
           by
           the
           whole
           House
           to
           Examine
           the
           Cause
           ,
           Heard
           Council
           on
           both
           sides
           several
           days
           ,
           and
           Reported
           to
           the
           House
           their
           Opinion
           for
           the
           Petitioner
           and
           Appellant
           .
        
         
           Thereupon
           the
           Respondent
           ,
           
             George
             Matthews
          
           ,
           petitioned
           the
           Lord's
           House
           against
           that
           Report
           ,
           and
           Opinion
           of
           the
           Committee
           ;
           and
           in
           his
           Petition
           alledges
           ,
           That
           he
           was
           inform'd
           by
           his
           Council
           ,
           
             That
             it
             had
             been
             the
             course
             of
             the
             House
             to
             Reverse
             Decrees
             only
             by
             Bill
             legally
             Exhibited
          
           ;
           that
           is
           ,
           by
           a
           Bill
           to
           pass
           into
           an
           Act
           by
           Parliament
           ;
           (
           for
           what
           can
           a
           Bill
           in
           that
           case
           otherwise
           signify
           ?
           )
           This
           shows
           ,
           that
           the
           whole
           Parliament
           are
           the
           proper
           Judges
           of
           it
           .
        
         
           The
           Lord's
           House
           hereupon
           being
           tender
           and
           cautious
           how
           they
           entertain'd
           a
           new
           Jurisdiction
           ,
           name
           another
           Committee
           of
           Lords
           ,
           to
           set
           down
           an
           Order
           in
           that
           Cause
           .
        
         
           That
           Committee
           Report
           their
           Order
           ,
           viz.
           That
           the
           Cause
           be
           Review'd
           in
           Chancery
           by
           the
           Lord-Keeper
           ,
           by
           such
           Lords
           as
           the
           Lords
           House
           should
           name
           ,
           and
           by
           any
           Two
           of
           the
           Judges
           ,
           as
           the
           Lord-Keeper
           should
           name
           ,
        
         
           For
           which
           end
           the
           Lord-Keeper
           is
           to
           be
           an
           humble
           Suitor
           to
           the
           King
           from
           the
           House
           ;
           to
           grant
           a
           Commission
           to
           himself
           (
           the
           Lord-Keeper
           )
           and
           the
           Lords
           to
           be
           named
           by
           the
           House
           .
        
         
           The
           Lords
           House
           approv'd
           of
           the
           Order
           ,
           and
           named
           Seven
           Lords
           .
           The
           King
           granted
           the
           Commission
           accordingly
           ,
           and
           the
           Decree
           in
           Chancery
           was
           Revers'd
           upon
           it
           .
        
         
           The
           Orders
           are
           to
           be
           seen
           in
           the
           Register's
           Office
           of
           the
           Chancery
           .
           Mich.
           and
           Hill.
           22.
           
           Iac.
           1.
           
        
         
           This
           is
           a
           dischargi●g
           all
           that
           the
           Lords
           had
           before
           done
           in
           it
           ;
           
           though
           they
           had
           in
           effect
           arriv'd
           at
           the
           very
           Port
           ,
           and
           made
           a
           conclusive
           Order
           and
           Decree
           .
        
         
           But
           after
           all
           ,
           refer
           it
           to
           the
           right
           and
           usual
           Method
           in
           the
           main
           of
           it
           ,
           viz.
           to
           be
           determin'd
           by
           a
           Commission
           from
           the
           King
           to
           the
           Lord-Keeper
           himself
           ,
           to
           Salve
           his
           Honour
           in
           it
           ,
           (
           
             Quod
             in
             consultò
             fecimus
             ,
             consultò
             revocemus
          
           )
           and
           to
           some
           Judges
           (
           who
           are
           the
           most
           proper
           )
           and
           to
           the
           Lords
           ,
           who
           for
           that
           purpose
           were
           recommended
           by
           the
           House
           of
           Lords
           ,
           (
           which
           is
           in
           compliance
           with
           their
           desire
           ,
           but
           not
           
             Stricti
             Iuris
          
           .
           )
        
         
           But
           the
           King's
           Commission
           is
           the
           true
           ,
           regular
           ,
           and
           warrantable
           ground
           and
           foundation
           of
           all
           the
           further
           Proceedings
           in
           that
           Case
           .
        
         
           And
           all
           this
           by
           the
           Direction
           ,
           and
           with
           the
           Opinion
           and
           Judgment
           of
           the
           Lords
           themselves
           ,
           in
           a
           Case
           wherein
           they
           had
           begun
           ,
           and
           made
           a
           large
           progress
           in
           the
           Exercise
           of
           a
           Jurisdiction
           ,
           and
           then
           wholly
           desisted
           .
        
         
         
           Nor
           is
           the
           Subject
           without
           a
           proper
           and
           ordinary
           remedy
           (
           if
           our
           Law-Books
           may
           be
           credited
           )
           where
           he
           is
           grieved
           by
           an
           Erroneous
           Decree
           in
           a
           Court
           of
           Equity
           .
        
         
           See
           Serjeant
           Rolles's
           Reports
           the
           1
           st
           Part
           ,
           Fol.
           331.
           the
           Case
           of
           Vaudrey
           against
           Pannel
           .
           Sir
           
             Edward
             Coke
          
           cites
           a
           Case
           there
           ,
           Mich.
           43.
           
           Elliz.
           in
           the
           Chancery
           between
           the
           Countess
           of
           Southampton
           ,
           and
           the
           Lord
           of
           Worcester
           ,
           Resolv'd
           by
           all
           the
           Judges
           ,
           That
           when
           a
           Decree
           is
           made
           in
           Chancery
           ,
           the
           Queen
           ,
           upon
           a
           Petition
           may
           referr
           it
           to
           the
           Judges
           ,
           (
           but
           not
           to
           any
           other
           ;
           )
           and
           so
           (
           says
           that
           case
           )
           the
           practice
           and
           proceedings
           have
           been
           ;
           which
           make
           a
           Law
           in
           cases
           of
           Equity
           ,
           and
           the
           Lord
           Chancellor
           agreed
           to
           it
           ,
           (
           the
           Lord
           Egerton
           )
           and
           accordingly
           upon
           Petition
           to
           the
           Queen
           ,
           and
           a
           Reference
           by
           the
           Queen
           to
           the
           Judges
           ,
           that
           Decree
           was
           Revers'd
           .
        
         
           The
           like
           we
           may
           read
           in
           Andersons's
           Second
           Reports
           ,
           Fol.
           163.
           
           The
           Earl
           of
           Worcester
           ,
           and
           Sir
           Finche's
           Case
           ,
           the
           same
           with
           that
           of
           the
           Countess
           of
           Southampton
           ,
           and
           Bulstrode's
           Third
           Part
           ,
           Fol.
           118.
           
           See
           Serjeant
           Rolles's
           Abridgment
           ,
           the
           First
           Part
           ,
           Fol.
           382.
           
           Ruswell
           ,
           and
           Every's
           Case
           .
           15
           Iac.
           1.
           and
           Arden
           and
           Darcy's
           Case
           ,
           8
           Iac.
           1.27
           H.
           8.
           
           Fol.
           15.
           
        
         
           But
           as
           to
           the
           Remedy
           against
           an
           Erroneous
           Decree
           in
           Chancery
           ,
           I
           have
           already
           given
           my
           advice
           at
           large
           in
           that
           former
           Treatise
           of
           mine
           before-mention'd
           ,
           to
           which
           I
           refer
           my
           Reader
           .
           It
           is
           high
           time
           that
           it
           should
           be
           settled
           in
           some
           constant
           course
           .
        
         
           The
           Noble
           Author
           ,
           suppos'd
           (
           as
           I
           said
           before
           )
           to
           be
           the
           late
           Lord
           Hollis
           ,
           in
           his
           Book
           beforemention'd
           ,
           hath
           asserted
           a
           very
           large
           Jurisdiction
           to
           belong
           to
           the
           House
           of
           Peers
           ,
           which
           in
           the
           consequence
           ,
           if
           it
           be
           observ'd
           and
           put
           in
           practice
           ,
           will
           be
           of
           mighty
           concernment
           to
           the
           Subjects
           :
           Nor
           hath
           it
           been
           answer'd
           ,
           or
           taken
           notice
           of
           by
           any
           ,
           as
           far
           as
           I
           have
           heard
           .
        
         
           That
           Author
           ascribes
           to
           the
           Lords
           a
           power
           to
           try
           ,
           and
           determine
           a
           matter
           of
           Fact
           in
           issue
           ,
           although
           the
           Right
           of
           a
           Freehold
           depend
           upon
           it
           ;
           and
           this
           ,
           by
           Proofs
           without
           a
           Jury
           ,
           pag.
           66.
           and
           this
           he
           grounds
           upon
           the
           Precedent
           of
           the
           case
           of
           
             William
             Paynel
          
           ,
           the
           Record
           whereof
           is
           in
           Ryley's
           
             Placita
             Parliamentaria
             ,
             Fol.
          
           231.
           
           What
           then
           becomes
           of
           that
           great
           privilege
           of
           the
           people
           of
           England
           ,
           of
           being
           tried
           by
           the
           Country
           ,
           and
           by
           their
           Neighbours
           ;
           ?
           and
           inferior
           Courts
           of
           Equity
           will
           be
           very
           apt
           to
           tread
           in
           their
           steps
           ,
           and
           do
           the
           like
           ;
           and
           it
           deserves
           to
           be
           enquir'd
           into
           ,
           if
           it
           be
           not
           already
           frequently
           so
           done
           .
        
         
           The
           Lords
           will
           not
           be
           likely
           to
           reform
           it
           upon
           Appeal
           from
           these
           Courts
           of
           Equity
           ,
           if
           that
           should
           be
           assign'd
           for
           Error
           ,
           if
           they
           themselves
           should
           practice
           it
           ,
           as
           this
           Author
           says
           they
           may
           .
        
         
           Nor
           does
           that
           Precedent
           of
           
             William
             Paynell
          
           any
           way
           countenance
           that
           practice
           ;
           for
           there
           the
           (
           
             Concilium
             Regis
          
           )
           gave
           Judgment
           upon
           Matter
           of
           Fact
           confess'd
           ,
           where
           there
           needed
           no
           trial
           at
           all
           .
        
         
           The
           same
           Noble
           Author
           affirms
           ,
           That
           the
           Lords
           may
           entertain
           or
           dismiss
           Causes
           as
           their
           occasions
           will
           give
           them
           leave
           ,
           or
           as
           they
           have
           leisure
           from
           the
           greater
           affairs
           of
           the
           Kingdom
           ;
           so
           that
           sometimes
           they
           cannot
           be
           at
           leisure
           to
           do
           Justice
           :
           If
           this
           Opinion
           be
           allow'd
           ,
           
             Cessa
             regnare
          
           ,
           says
           the
           Petitioner
           to
           King
           Philip
           of
           Macedon
           ,
           when
           that
           King
           refus'd
           to
           answer
           her
           Petition
           for
           want
           of
           leisure
           .
        
         
           The
           Lords
           can
           (
           says
           the
           same
           Author
           )
           grant
           a
           temporary
           dismission
           to
           a
           Defendant
           ,
           by
           an
           Entry
           made
           of
           
             Eat
             inde
             sine
             die
             ad
             praesens
          
           :
           but
           may
           Summon
           him
           again
           for
           the
           same
           Cause
           at
           another
           time
           when
           they
           think
           fit
           :
           If
           
           this
           be
           true
           ,
           a
           man
           shall
           never
           know
           when
           his
           Cause
           is
           at
           an
           end
           ;
           nay
           ,
           the
           Chancery
           will
           give
           further
           costs
           after
           the
           Parties
           and
           Cause
           are
           out
           of
           the
           Court
           ,
           and
           long
           after
           the
           whole
           matter
           is
           at
           end
           ,
           without
           any
           new
           process
           .
        
         
           The
           persons
           of
           whom
           this
           high
           Judicature
           doth
           consist
           had
           need
           be
           men
           of
           great
           Learning
           in
           the
           Law
           ,
           and
           of
           long
           Experience
           :
           For
           the
           matters
           that
           should
           come
           before
           them
           are
           such
           ,
           as
           are
           too
           difficult
           for
           the
           inferior
           Courts
           to
           determine
           ,
           and
           are
           very
           abstruse
           ;
           and
           yet
           those
           inferior
           Courts
           are
           generally
           furnish'd
           with
           such
           as
           are
           of
           great
           Abilities
           ,
           and
           long
           Experience
           ,
           and
           usually
           spend
           Thirty
           or
           Forty
           years
           in
           hard
           study
           ,
           to
           make
           them
           fit
           for
           the
           discharge
           of
           their
           Offices
           .
        
         
           
             Be
             Learned
             ye
             that
             are
             Iudges
             of
             the
             Earth
             ,
          
           says
           Almighty
           God
           ,
           that
           Judge
           of
           Judges
           .
           Hence
           Governors
           are
           wont
           to
           be
           called
           Senators
           ,
           and
           in
           the
           time
           of
           the
           Saxons
           they
           were
           called
           Eoldermen
           or
           Eldermen
           ,
           for
           their
           Age
           ,
           Gravity
           ,
           and
           Experience
           .
        
         
           It
           would
           indeed
           be
           a
           Miracle
           in
           Nature
           ,
           if
           any
           one
           could
           truly
           affirm
           of
           himself
           ,
           
             Me
             jam
             jam
             à
             puero
             ,
             illicò
             nasci
             Senem
             ,
             or
             nasci
             Iudicem
             ,
          
           to
           be
           able
           to
           judge
           in
           those
           abstruse
           and
           difficult
           Causes
           .
        
         
           St.
           Paul
           being
           accus'd
           before
           Faelix
           ,
           did
           (
           and
           that
           without
           insinuating
           flattery
           )
           tell
           his
           Judge
           ,
           That
           he
           did
           the
           more
           cheerfully
           answer
           for
           himself
           ,
           because
           Faelix
           had
           been
           (
           as
           St.
           Paul
           acknowledg'd
           )
           of
           many
           years
           a
           Judge
           unto
           that
           Nation
           :
           And
           he
           said
           the
           like
           when
           he
           stood
           before
           King
           Agrippa
           ,
           because
           he
           knew
           him
           Expert
           .
           And
           it
           is
           a
           just
           and
           commendable
           course
           ,
           always
           practis'd
           in
           all
           our
           inferior
           Courts
           .
           That
           after
           a
           Cause
           hath
           been
           pleaded
           ,
           that
           both
           Parties
           ,
           and
           Council
           ,
           and
           Witnesses
           ,
           and
           all
           others
           that
           will
           ,
           are
           permitted
           to
           be
           present
           ,
           and
           to
           hear
           the
           Repeating
           ,
           and
           opening
           ,
           and
           true
           stating
           the
           Case
           by
           the
           Bench
           ,
           and
           Court
           ,
           and
           to
           hear
           the
           Debate
           of
           it
           ,
           to
           observe
           ,
           and
           be
           in
           a
           readiness
           to
           rectify
           any
           misapprehension
           ,
           or
           mistake
           (
           if
           any
           happen
           ▪
           )
           and
           so
           to
           set
           the
           Court
           right
           again
           .
        
         
           As
           also
           ,
           that
           the
           grounds
           and
           reasons
           of
           the
           Opinions
           of
           the
           Judges
           may
           be
           known
           ,
           that
           the
           People
           may
           the
           better
           know
           thereafter
           how
           to
           square
           their
           actions
           :
           And
           that
           the
           Law
           may
           be
           the
           better
           known
           to
           those
           that
           are
           subject
           to
           it
           .
           For
           there
           ought
           to
           be
           one
           certain
           known
           Rule
           of
           Law
           ,
           whereby
           one
           and
           the
           same
           Case
           is
           to
           be
           determined
           ,
           and
           not
           two
           or
           more
           contradictory
           Laws
           in
           one
           and
           the
           same
           place
           .
        
         
           It
           was
           a
           woful
           condition
           ,
           when
           at
           the
           same
           time
           some
           were
           burnt
           in
           Smithfield
           for
           being
           Protestants
           ,
           and
           others
           for
           being
           Papists
           ;
           which
           made
           one
           cry
           out
           ,
           
             Bone
             Deus
             ,
             quomodo
             hic
             vivunt
             !
          
           &c.
           Inferior
           Courts
           ,
           and
           the
           Superior
           must
           judge
           by
           the
           same
           Law
           and
           Rule
           ;
           for
           
             Misera
             est
             Servitus
             ,
             ubi
             jus
             est
             vagum
             .
          
           And
           it
           is
           impossible
           to
           serve
           two
           contrary
           Masters
           ;
           and
           it
           is
           a
           sad
           case
           ,
           where
           the
           Trumpet
           of
           the
           Law
           gives
           an
           uncertain
           sound
           ,
           for
           then
           a
           man
           knows
           not
           how
           to
           order
           his
           affairs
           .
        
         
           There
           may
           indeed
           be
           a
           different
           Method
           ,
           and
           Course
           of
           Proceedings
           in
           the
           several
           Courts
           ,
           and
           yet
           all
           conform
           to
           the
           same
           Law.
           And
           it
           is
           sometimes
           said
           by
           our
           Judges
           ,
           that
           what
           is
           Law
           in
           the
           Exchequer
           is
           Law
           also
           in
           the
           King's-Bench
           ,
           and
           Common-Pleas
           .
        
         
           If
           it
           were
           otherwise
           ,
           great
           Confusion
           would
           arise
           .
           And
           this
           Law
           is
           not
           known
           by
           Inspiration
           ,
           it
           is
           not
           infus'd
           all
           at
           once
           ,
           but
           acquir'd
           by
           long
           Study
           ,
           and
           long
           Experience
           .
        
         
           Sir
           
             Francis
             Bacon
          
           ,
           in
           his
           Advancement
           of
           Learning
           ,
           pag.
           445.
           holds
           it
           just
           ,
           that
           Judges
           should
           alledge
           the
           reasons
           of
           their
           Sentence
           ,
           and
           that
           openly
           in
           the
           Audience
           of
           all
           the
           Court.
           
        
         
           And
           anciently
           amongst
           us
           in
           England
           ,
           the
           Courts
           used
           to
           enter
           the
           reasons
           given
           by
           the
           Judges
           ,
           upon
           the
           Record
           of
           the
           Judgment
           ;
           which
           is
           now
           suppli'd
           in
           some
           measure
           ,
           by
           Reports
           of
           Cases
           adjudg'd
           ,
           and
           of
           the
           Arguments
           at
           Bar
           ,
           and
           at
           Bench.
           
        
         
           But
           we
           have
           few
           or
           no
           Reports
           of
           Cases
           adjudg'd
           in
           the
           Supreme
           Court
           ,
           since
           those
           that
           are
           printed
           by
           Mr.
           Ryley
           .
        
         
           In
           that
           ancient
           Cause
           of
           Adelwold
           ,
           Bishop
           of
           Winchester
           in
           the
           Saxon
           times
           under
           King
           Eldred
           ,
           the
           Record
           mentions
           ,
           that
           the
           Bishop
           himself
           ,
           
             Coram
             cunctis
             suam
             causam
             patefecit
          
           .
           He
           pleaded
           his
           Cause
           himself
           .
        
         
           
             Qua
             Rebenè
             ,
             &
             ritè
             ,
             ac
             Apertè
             ,
             ab
             Omnibus
             discussa
             ,
          
           (
           it
           was
           openly
           debated
           )
           
             Omnes
             reddiderunt
             Iudicium
          
           .
           This
           was
           at
           the
           Miccel-Gemot
           ,
           there
           was
           no
           withdrawing
           .
        
         
           And
           Eadmerus
           gives
           us
           the
           like
           Instance
           in
           the
           Cause
           of
           Lanfrank
           Archbishop
           of
           Canterbury
           in
           the
           time
           of
           King
           William
           the
           First
           ;
           't
           is
           in
           his
           
             Historiae
             Novorum
          
           ,
           pag.
           9.
           
           Adunatis
           (
           says
           he
           )
           
             Primoribus
             &
             Probis
             viris
             de
             Comitatibus
             :
             quaerelae
             Lanfranci
             in
             Medium
             ducerentur
             ,
             examinarentur
             &
             determinarentur
             .
             In
             medium
             ,
          
           that
           is
           ,
           before
           ,
           or
           in
           the
           midst
           of
           all
           that
           vast
           Company
           .
        
         
           To
           Conclude
           ,
           and
           in
           order
           to
           the
           obtaining
           a
           safe
           and
           speedy
           remedy
           ,
           let
           our
           Law
           makers
           be
           mindful
           of
           that
           old
           Advice
           and
           Caution
           ,
           viz.
           
           
             
               —
               Serò
               Medecina
               paratur
            
             
               Cum
               Mala
               per
               long
               as
               invaluêre
               moras
               .
            
          
        
         
           FINIS
           .
        
         
      
    
     
       
         Notes, typically marginal, from the original text
         
           Notes for div A26147-e310
           
             Hadelow's
             Case
             .
          
           
             Note
             .
          
           
             Note
             .
          
           
             
               An.
               Dom.
            
             1624.
             
          
           
             Note
             .