THE CASE STATED Concerning the JUDICATURE OF THE House of Peers In the Point of APPEALS.  
Printed in the Year, MDCLXXV.   

The Case stated concerning the judicature of the House of Peers, in the point of Appeals.  
ONe chief end of Parliaments, besides that of making good and wholesome Laws for the well governing of the Kingdom, is to redress and reform Abuses of Inferior Courts, and to direct them in Cases of great difficulty, when by reason of some Circumstance in matter of Fact, the Law is not so plain, as that they can proceed to give Relief to such suitors as stand in need of Relief and demand it; and then have those Courts applied themselves to the Parliament for Advice and Direction: Whereas in other Cases, where there hath been either a Perverting of Justice in giving a wrong Judgement, or a wilful delay of Justice, in giving no Judgement at all, there the Party grieved complaining to the Parliament, finds that Remedy, which his Case requires. Therefore is it that 1. R. 2. n. 95. the Commons pray, That a Parliament be yearly holden to redress delays in Suits, and to end such Cases as the judges doubt of.  
Now the next thing to be enquired into, is how, and in what manner, the Parliament doth exert this power of Judicature over Inferior Courts, and where, and in what part of the Parliament this Jurisdiction is lodged, which I think will be easily made out, to be singly and solely in the Upper House, the House of Peers, that there it is, and hath ever been both De facto & de jure.  
That it hath been Practised so, you have multitudes of Precedents, sometimes in case of delay in Justice, sometimes in case of an Erroneous proceeding in the Application of it: As in the 14. E. 3. in the Case of Sir john and Sir jeffery Stanton; Sir jeffery comes and complains to the House of Lords, of delay in the Court of Common Pleas, the House of Lords first send to those Judges to proceed to Judgement, by a Writ containing the whole Matter as it was represented to them, with this; that in case the Judges there could not agree in regard of Difficulty, or any other Cause, they should then come into Parliament, and bring with them the Record of the whole Process, which Sir john Stonore the Chief Justice did; and then the House of Peers, (as it is expressed in the Roll): Les Prelates Countess Barouns & Autres du Parliament, and who those Autres were, is likewise expressed (not any of the Lower House, but) Le chancellor, treasurer, justices deal un Bank & del autre & autres du Conseil du Roy (that is, Those who were Assistants in the House of Peers, as the Attorney, and others of the King's learned Counsel, and even the Chancellor and Treasurer, if they were not Peers) they declare, Est finalement accordez, the Roll saith, it is finally agreed, what the Judgement shall be, and they command those Judges, Quills en lour Bank aillent le jugement rendre, that they go and pronounce that Judgement in their Bench.  
But there is an Act of Parliament in that 14. of E. 3. c. 5. (and that Act is still in force) which shows the right of such a Judicature to be in the House of Peers: It ordains, That a Prelate, two Earls, and two Barons, shall be chosen every Parliament, who shall have a Commission from the King, to hear the Complaints of those that will complain unto them of such Delays or Grievances done to them in the Chancery, King's Bench, Common Bench, or Exchequer, shall cause the judges of the Court, where such Delay is complained of, to come before them with the whole Process in the Cause, may call to them the Chancellor, Treasurer, justices of either Bench, and Barons of the Exchequer, as they shall think fit, to assist them: So shall proceed to take a good accord, and make a good judgement, and then send that to the justices before whom the Plea did depend, with order that they hastily go to give judgement accordingly. And if the Case were of such difficulty, as that they could not well determine it, they were then to bring it to the next Parlaement, where a Final Accord was to be taken, what judgement ought to be given, which was to be sent to the judges, and they commanded to proceed without delay, and give that judgement. And to begin to do Remedy upon this Ordinance, (they are the words of the Act) the Lords are named, viz. The Arch Bishop of Canterbury, the Earls of Arundel and Huntingdon, the Lord de Wake, and the Lord Ralph Basset, and it is Enacted, that a Commission and a Power should be granted to them to endure till the next Parliament. For this was but for the Intervals of Parliament; the Parliament Sitting, the Complaint was to be made to the House, and the House to give the Redress.  
Then for Erroneous Judgements and Decrees, whether given in Courts of Law, or Courts of Equity, that the Remedy en dernier resort, lies likewise in the House of Peers, will (I think) be easily proved. Concerning the Courts of Law it is not at all Controverted, but that by a Writ of Error all such Judgements in Inferior Courts, with which any Body shall find himself aggrieved, may be removed unto, and Reversed in that House, if they find cause for it.  
It is true, that in Rastals Collection of Entries, Tit. Error en le Parliament, pag. 302. there is this Clause inserted in the Writ there entered, viz. Vobis mandamus quod Record. & Process, etc. in presens' Parliament, etc. mittatis & hoc Breve, ut inspect. Recordo & Processis predicto Nos de Consilio & advisamento Dominorum Spiritualium & Temporalium ac Communitatum in Parliamento nostro predict. existent. ulterius pro errore illo corrigendo fieri faciamus quod dejure & secundum Legem & consuetudinem Regni nostri Angliae fuerit faciendum. Here one would think is a clear Testimony, that the House of Commons are Copartners with the Lords, in Judging those Writs of Error: But I may say, there is an Error in this Entry, and it was set right that very year, in the 1. of H. 7. by a Meeting and Consultation of all the Judges in the Exchequer Chamber: It is in the Year-Book Pasc. 1. H. 7. p. 19, & 20. in Flouredews Case, the words are these: Et postea per avisament. omnium Iusticiariorum in Camera Scaccarii existent. & congregat. pro eadem materia & errore illo corrigendo, sic intelligendum est, si Parliament. sit apud Westm. tunc oportet partem habere billam de Rege indorsatam, etc. Et quam cito Billa sic indorsata fuerit, & Breve de Errore & Transcriptum pred. in Parliamento deliberentur, Clericus Parliamentorum habebit custodiam inde; Et per Dominos tantum, & non per Communitatem assignabitur Senescallus, qui cum Dominis Spiritualibus & Temporalibus per concilium Justiciariorum procedent ad Errorem corrigendum. Here is a Negativa praegnans, to the House of Commons, Et non per Communitatem, as if it was not enough to say by the Lords alone, there is added, That it must not be by the Commons. Nothing can be clearer than this, and the Practice hath been according to it in all times, both preceding and following.  
Some question hath been made of Appeals from Courts of Equity, whether or no that House hath Cognisance of them? And more is it questioned, If a Member of the House of Commons hath been concerned in the Appeal, which hath now this last Session of Parliament been absolutely and peremptorily denied, and strongly opposed by the House of Commons? But I no ways doubt of making it appear as clear as the Noonday, that all Appeals (whoever is concerned in them) are regularly and properly within the Cognisance and the Jurisdiction of the House of Peers, and so have ever been.  
And to speak truly, There was Anciently no difference in the way of complaining of Erroneous Judgements given in Courts of Law, and that of unjust Decrees made in a Court of Equity. Both were by way of Petition from the Party grieved, setting forth the Cause of his Complaint, and showing wherein the Court had Erred in the Adjudging and Determining his Cause before them: In the Rolls of Parliament from the beginning of Edward the Third, to the end of Edward the Fourth, (which are all that are in the Tower) there is no mention of any Complaint of an Erroneous Judgement brought into Parliament, (that is to the House of Peers) by a Writ of Error, (as it is now the Practice) from the Courts of Law, but all were by Petition, as the Appeals are now from Decrees in Equity. And this Change is crept in of late Years we know not how, nor exactly when, but certainly in those times of which the Parliament Journals are either totally lost, as those of the times of Richard the 3 d, and Henry the 7 th' and between the 7 th' and the 25 th' of Henry the 8 th', or else made so Concise and Imperfect, recording nothing but Bills and their several Readins, and some Proceedings upon them, and very little, as good as nothing of any private Businesses, that one cannot have a certain knowledge how the Judicature was then exercised in the House of Lords, as appears by the Journals extant of H. the 8 th', and all since, even till the 18 th' of King James, when Henry Elsing came to be Clerk of the Parliament, who first took care to enter duly in the Journal Book all that passed in the House. But however, this Alteration, and the difference that seemingly is between complaining by a Petition of Appeal, and bringing of a Writ of Error, hath given occasion to the House of Commons to Dispute the Jurisdiction of the House of Peers, in case of Appeals, and pass some Vote against it, and more Declaredly and Avowedly to oppose the Proceedings of the Peers upon Appeals, when any Member of their House hath been concerned.  
For Appeals in General, They have declared that the House of Lords hath no Right to Receive and Judge of any from Courts of Equity, a thing was never Questioned in any preceding Parliament, though it hath been ever Practised. And there is the same Reason for it, if not more, than for their reversing Erroneous Judgements at the Common Law. For in the Courts of Common Law, there are Four Judges, and they will not easily be all mistaken, and all concur in giving a false Judgement; and a Suitor there, is more like to receive Justice, especially in regard they have a strict Rule to go by, the Rule of the Law, which is a known Rule, than where there is but one Judge, as in Chancery, and who hath a greater Latitude to proceed by, varying from the exact Rule of Law, and guiding himself much by his own Discretion: It is easy for such a Judge to err, though perhaps not willingly, and hard it were, that there should then be no Remedy.  
But it will be said, The King may then grant a Commission to certain Persons, to give Relief to such as shall find themselves aggrieved with any unjust Decree, as was done by Queen Eliz. in the 43 d. year of her Reign, in a Case of the Countess of Southampton and the Earl of Worcester, mentioned by Sergeant Rolls, in the Report of the Case of Vaudrey and Panel, p. 331. where he saith it was resolved by all the Judges, which they set under their Hands, that when a Decree is made in Chancery, upon Petition to the Queen, She may refer it to the Judges, (but not to any other but to them) to Examine, and Reverse the Decree if there be cause, and accordingly by such a Reference that Decree was Reversed. Sir Edward Cook, also in his 4 th' Institute, c. 8. treating of the Court of Chancery, gives two Precedents more of the like nature, one of the same 43. Eliz. in Sir Moyle Finches Case, he Defendant, the Earl of Worcester, and others Plaintiffs, whereupon a Petition to the Queen, a Decree in Chancery was referred to the Judges, and their Resolutions against it being certified into the Chancery, the Decree was Reversed: The other Precedent is three Years before, 40. Eliz. in Throgmorton's Case, the same Sir Moyle Finch, there likewise Defendant, where a Demurrer of his being overruled by the Chancellor, upon a Reference to the Judges, it was by them otherwise resolved, and their Resolution being by the Chief Justice Popham signified to the Chancellor, there was no further proceeding in Chancery. To these Precedents is answered, First, That it may be doubted, if the Opinion and Proceedings of the Judges at that time be so authentic, as to make it pass for Law, to set up a new Court of Equity. Sir Edward Cook, in the same Treatise, fol. 87. saith in Perrots Case, Mich. 26, and 27. Eliz. That it was resolved by Sir Christopher Wray, Chief Justice, and the Court of King's Bench, That the Queen could not raise a Court of Equity by Her Letters-Patents, and that there could be no Court of Equity but either by Act of Parliament, or by Prescription time out of mind: And in Hobberts Reports fol. 63. in the Case of Martin and Marshal, it is said, That this Court of Equity is a special Trust committed to the King, and not by him to be Committed to any other but his Chancellor. How then can King or Queen Commissionate any or her Persons to be Judges in Equity of any Cause? For what is it but a Court of Equity, when all the Judges are Commissionated to assemble themselves to rehear a Cause, formerly Decreed in Chancery, which they do Judge anew, and Determine it upon hearing Counsel of both sides, for or against the Decree, Secundum aequum & bonum, according to the Course of Equity, and not by the strict Rule of Law. This is certainly at least a Temporary Court of Equity: It is true, that for Erroneous Judgements in the King's Bench or in the Exchequer, a Writ of Error lies to bring them before the Judges in the Exchequer Chamber, but it is by Act of Parliament: Several Acts have been made to give that Relief. First, The 31. E. 3 c. 12. which gives Power to the Chancellor and Treasurer to call the Judges to assist them, to examine Errors in the Exchequer. Then the 27. Eliz. c. 8. which makes Judgements in the King's Bench examinable by all the Judges of the other Courts in the Exchequer Chamber. And the 31. Eliz. c. 1. which gives some further Regulation in the proceedings upon Judgements given in each of those Courts, as well the Exchequer as the King's Bench: And that of the 27 th' of the Queen gives the Reason in the Preamble, why those Laws were made, because before that time, Erroneous Judgements given in the King's Bench could only be Reform in the High Court of Parliament, and the Parliament did not so often sit in those days as formerly: But there is no Act of Parliament, nor no Law, which gives Power to the King to enable either the Judges, or any Body else out of Parliament, to examine a Decree made in Chancery, though it be never so Unjust and Erroneous; therefore it may well be doubted, if such a Commission were according to Law, notwithstanding the Resolution of the Judges at that time.  
But admit such a Commission were Legal, and that the King had Power to Appoint and Authorize Persons to receive and judge of Appeals from the Chancery, as he doth Delegates for Appeals from Ecclesiastical Courts, (which Power is given him by Act of Parliament, 25. H. 8. c. 19) yet that would not conclude the House of Peers, but that they might receive an Appeal even from the Sentence of those Commissioners, seeing it is the King's Supreme Court of Judicature, and where Henry the 8 th' said, upon occasion of what happened in Parliament in the Case of Ferrars, that he was Informed by his Judges that he stood Highest in his Royal Estate. Therefore even those Acts of Parliament, that Erect a Judicature of all the Judges in the Exchequer Chamber, to examine and reverse Erroneous Judgements given in the King's Bench, and in the Exchequer, do not exclude an Appeal, even from thence, to the Parliament: The words of the Statute of 27. Eliz. are these: And be it further Enacted, that such Reversal or Affirmation of any such former Judgement shall not be so Final, but that the Party, who findeth him grieved therewith, shall and may Sue in the High Court of Parliament, for the further and due Examination of the said Judgement, in such sort as is now used upon Erroneous Judgements in the King's Bench.  
And it doth naturally and necessarily follow, that it must be so, if the House of Peers be the Supreme Court of Judicature. That the High Court of Parliament is so, no Man will deny. It rests only to make out, that by the High Court of Parliament in matter of Judicature is intended the House of Peers, where such Jurisdiction is solely Lodged. And that it is so, it will be proved by good Authorities, and by right Reason. The Authorities are taken out of the Parliament Rolls, which declare it throughout from the beginning to the end, both in the ancient Records, and in the Modern Journal Books; They all speak the House of Peers, that is King and Lords, to be the sole Judges both of Persons and Things, Criminal and Civil, and the House of Commons to have no part in it at all. The first Parliament Roll extant is 4. E. 3. and it begins with a Judgement given by the Peers upon Roger de Mortimer E. of March, Per qoi les ditz. Countess' Barouns & Peers, come Juges du Parliament, per assent du Roi en mesme le Parliament agarderent & aiugerent que le dit Roger come treitor & enemy du Roi & du Roialme feust train & pendu. The Earls Barons and Peers as Judges of Parliament, etc. they are Characterised Judges of Parliament as a thing known and notorious to all Men. They at the same time exercised their Judicature upon Sir Simon de Bereford, John Mautravers, Bogo de Bayons, John Deveroil, Thomas de Gurney, and William de Ode, who were Commoners and no Peers, those were all Condemned, but only Sir Simon de Bereford Executed, for the others were not taken, and none of them all, neither the Earl of March, nor Bereford, called to Answer; but the Lords were forced to Condemn them by the earnest pressing of the King, which so troubled their Consciences, that they presently came to an Agreement with the King, not to be hereafter compelled to give Judgement upon any but their Peers; which is that of 4. E. 3. n. 6. which is hinted in a Paper, said to be, Reasons prepared by the House of Commons for a Conference with the Lords, and to be Read to their Lordships, as a Matter of huge Importance to disprove the Power of the House of Peers of judging Commoners, when it was only an Agreement, as it were a Bargain, made with the King, that he should not force them to Judge any but their Peers, (For that was a thing they were tied unto by Law, and they could not avoid it) Ne soient mes tenuz ne chargez a rendre juggementz sur autres, are the words of the Record; I see not what great Matter can be built upon this Precedent to dispossess them of their Judicature; It was a voluntary Act of the Lords at that time, even an effect of their Indignation against themselves, for having yielded to do an unjust thing, at the pressing Importunity of the King, to Condemn Men unheard, and not called to Answer for themselves, as the Lords themselves confessed, 28. E. 3. when an Act of Parliament passed to reverse this Judgement: But that they did afterwards commonly judge Commoners in Criminal Causes is very apparent. That very Parliament, notwithstanding that Agreement made, Sir Thomas Berkley was tried before them by a Jury, for the death of Edward the 2 d, and acquitted. The House of Commons themselves, 1. R. 2. n. 30. come and desire the Lords to exercise this Judicature upon such as had betrayed Forts and Towns into the hands of Enemies, the words are, Supply est per les Coens que touz ceux qont renduz & perduz Chastelz on Villes per de la per verray desauce de Capitaine puissent estre a response a ceste Parliament & solonc lour desert forsement puniz per agard des Srs. & Baronage; etc. That they may by the Judgement of the Lords and the Baronage, be severely Punished according to their deserts: The Lords accordingly cause to be brought before them William de Weston, for Surrendering the Castle of Outhrewick, and John de Gomeniz for Surrendering the Town and Castle of Arde, and Adjudged them to Death. The same Parliament Alice perrer's, who had been in high favour with Edward the 3 d. was questioned Devant les Prelates & Signior, before the Lords Spiritual and Temporal, for Maintenance and meddling with Businesses contrary to an Ordinance made 50. E. 3. n. 36. for which they adjudge her to be Banished, and to forfeit her whole Estate. Sir Ralph de Ferrer, 4. R. 2. was brought before the Lords by the Duke of Lancaster, who had Arrested him on the Marches of Scotland upon suspicion of High Treason, for holding Correspondence with and Adhering to the French, the King's Enemies, by reason of a Packet of Letters taken up by a Beggar in a Field near London, some from him to the King of France and to some French Lords, and some from them to him, which the Beggar carried to the Lord Major, and the Lord Major to the King's Council: These Letters were produced in Parliament against him, and by him denied. Being put to his Trial, he desired Counsel, which was denied▪ then the Business coming to hearing, I'll semblast as Srs. du Parlement que le dit Mr. Rauf estoit innocent, the Lords declared him Innocent, and committed the Beggar to Prison. The 7. R. 2. n. 17. Peter de Cressingham, and John de Spikesworth, were Tried for Surrendering the Castle of Drinkham in Flanders, Spikesworth was acquitted, and Cressingham committed to Prison: The same Parliament, Sir William Elmham, Sir Thomas Tryvet, Sir Henry de Ferriers, Sir William de Farnedon, and Robert Fitz-Ralph, for receiving Moneys of the French, who were the King's Enemies, and delivering up Forts into their hands, were adjudged to Prison, and to a Fine and Ransom at the Kings will; Sir William de Farndon, to be at the King's mercy Body and Goods, so as the King might take his Life if he pleased.  
15. R. 2. n. 16. The Sergeant at Arms John de Ellingham, is sent by the Lords to fetch up some Persons, that had committed a Riot in the Church of Whitewyk, in Lecestershire: He brought up the two chief Actors in it, Henry Tebb de Threnguston, and Robert Grenlowe, whom the Lords committed to the Fleet, there to remain during the King's pleasure, and where they did remain, till they paid a Fine to the King, and made Agreement with the Prior of Holland in Lancashire, (whose the Church was, and whom they had in the Church abused) and given Bond for their good Behaivour.  
15. R. 2. n. 17. The Abbot of Saint Osithe sets forth in his Petition, how the Parliament before upon his Complaint, their Lordships had sent John Rokell to the Tower for Embracery and Maintenance against him, that the Duke of Guien and Lancaster, had after that made an Award between them, and that Rokell did now refuse to stand to that Award. The Lords send for Rokell, the Duke testifies the Award, the Lords charge the Chancellor to see that Rokell perform it. That same Parliament, Sir William Brian for purchasing a Bull from the Pope directed to the Arch-Bishops of Canterbury and York, and the Bishop of London, to make Inquiry after some Persons, who had broken into his House at London, and had taken out several Writings, and other things, and to Excommunicate them. This was Adjudged by the Lords to be Prejudicial to the King and his Crown, in Derogation to the Law of the Land, a great Contempt to the King, and they committed him to the Tower. 1. H. 4. The Lords condemn John Hall, Servant to the Duke of Norfolk, to be hanged drawn and quartered, and his Head to be sent and set up at Calez, for Murdering there the Duke of Gloucester.  
2. H. 4. n. 2. They send Sir Philip Courtney to the Tower, and bind him to the good Behaviour, for making a forcible entry upon Lands of Sir Thomas Pomery, and for Imprisoning by force the Abbot of Newenham in Devonshire, and two of his Monks.  
11. H. 4. n. 36, 37. Several Rioters are complained of, and order given upon it for Writs to the Sheriffs, to apprehend their Persons, and seize upon their Estates, and they to answer for their Misdemeanours before the Justices of the King's Bench, to whom Authority is given to end those Businesses. All these were Commoners, yet they with many others, who upon perusing the Journals will be easily found, were Adjudged by the House of Peers, some to Death, some to Prison, and some to other Punishments, as Fine, and Good-behaivour, and some ordered to be proceeded against in the Courts below, and power given to those Courts to do it, which is all one, as if they Punished them themselves: And all this, notwithstanding that Agreement made in the 4 th' year of E. the 3 d. which shows, that their Intention then was only, that they should not be put upon it by the King, but not to put it out of their own Power.  
And one thing I must observe by the way, that though the Judgements be commonly given in the King's Name, yet it is the Act of the House, where the King is always virtually present, when they act Judicially; not so, when they act in their Legislative capacity. Therefore sometimes when the King had taken upon him to pronounce a Judgement of himself (or rather something like a Judgement) the Lords have protested against it, as 28. H. 6. n. 50.52. The Duke of Suffolk was Impeached for many Treasonable Matters: And not putting himself upon his Peerage, but referring himself to the King, and to his Order; the King then by the Mouth of the Chancellor declared unto him, that he should be Banished for Five years; and this (as the words of the Record are) by force of his Submission, and by the Kings own Advice, and not Reporting him to the Advice of his Lords nor by way of Judgement; for the King (he said) was not in place of judgement. And though this was but done in such a manner, the King even excusing it, that it was not by way of Judgement, yet because it looked like one, the Viscount Beaumond on the behalf of the Lords, and by their advice assent and desire, protested against it, prayed it might be entered in the Parliament Roll that they did so, and that it might not turn to the Prejudice and Derogation of them and their Heirs, in the Liberty and Freedom of their Peerage: So jealous were they then of their Privilege of Judicature, that they would not suffer any thing to Pass, not from the King himself, that did but look like a Violation of it: But their Predecessors went further than this in Henry the Fourths time, for here they suffered the King to have his Desire only with a Salvo to themselves, but 5. H. 4. n. 12. they absolutely opposed the King in what he would have done, and would do it themselves in another way: For the Earl of Northumberland coming into Parliament before the King and Lords, and by his Petition acknowledging his Offence, that he had done contrary to his Allegience in raising Men, and giving of Liveries, and therefore begging Pardon, and the rather for that upon the King's Letters, he had yielded himself and come to the King at York; the King having thereupon delivered this Petition to the Justices to have them consider of it, the Lords protested against it, said, the ordering of it belonged to them: And that therefore as Peers of Parliament, to whom such judgement belonged, they would take the Business into Consideration themselves, and then examining the Statutes, that of 25. E. 3. of Treason, and of the second of the then King H. 4. against Liveries; upon well weighing them they adjudged the Earl of Northumberlands Fact to be no Treason, but only a Trespass fineable to the King: Whereupon the King pardoned him, and received him into Favour.  
And the Lords were not more careful to assert and maintain this Jurisdiction of theirs, than all English-Men were to acknowledge it, the Judges both in and out of Parliament have ever had a Deference to it; In the Year-Book of 40 E. 3. Termino Michaelis, pag. 39 An Action being brought upon the Writ de Rationabili parte bonorum, and some difference being of Opinions, if the Action was good, that learned Judge Mowbray delivered his, Qe les Seignours en Parlement ne graunteront my que cest accion est maintenable per ascun comune custom ou ley de ce Realm. The Lords in Parliament will not yield this Action to be maintainable, he meant, they had Judged it otherwise: And to that Judgement of the Lords, Sir Edward Cook, hath Reference in his Comment upon Littleton, Sect. 267. where he saith, that it hath been resolved in Parliament, that a Custom must be alleged in some County, etc. to enable the Wife and Children to the Writ de Rationabili parte bonorum. It would be but Labour lost, to heap up more Proofs, and more Precedents for the asserting and maintaining of the Judicature of the House of Peers; Yet I shall add one more, which is in truth Instar omnium, for it is a Law having the Concurrence of King, Lords, and Commons, not a Constituting-Law, but a Declaratory-Law, (which is the strongest asserting and confirmation of any Law or Custom already established, that can be). It is that of the 1. H. 4, n. 79. the Record saith, That the Commons come and show to the King, That as judgements in Parliament belong only to the King and Lords, and not to the Commons, except in case it please the King out of his special Grace to acquaint them with those judgements in favour to them; so that no Entry ought to be made Prejudicial to them, to make them Parties now or hereafter, to any Judgements given or hereafter to be given in Parliament: To which the Archbishop of Canterbury answered by the King's Command, that the Commons are but even Petitioners and Suitors, and that the King and Lords have ever had and ever shall have Right to the Judicature of Parliament, as the Commons do themselves set forth; saving that the King will have their Advice and Assent in making of Laws and granting of Subsidies, and doing such things for the Public Good: This Order to be observed and kept in all times to come. Here is a clear Renunciation of all Pretence to Judicature by the Commons themselves, and a full Declaration and Acknowledgement of it to be only in the King and Lords, that it hath been ever so for the time past, and must be so for ever in time to come: And this declared by King, Lords and Commons, as a thing Notorious, known to all Men, and not disputed or doubted of by any. What can be said against this? Yes, that Paper which goes about from Hand to Hand, that I mentioned before, of Reasons prepared for a Conference, saith, that this Record was made upon occasion of Judgements given by the Lords, to Depose and Imprison their Lawful King, to which the Commons were unwilling to be made Parties: Admit it were so, yet no Man would think that the House of Commons would, to avoid that present Inconvenience, divest themselves to all intents and purposes of so great a Privilege, if in other things and before that time they had ever had right to such a Privilege; nay more, that they would say against themselves a thing in itself untrue, if it were untrue, as in truth it is not, but is most true, viz. That Judgements in Parliament belong only to the King and Lords, and not to the Commons. This is not to be believed, being against the general Practice of all Judges of Courts, that will Ampliare Jurisdictionem, rather than deliver it up or diminish it, and very contrary to their Practice in particular, who have been far from suffering any of their Power of judging and Imprisoning any Body, to grow less and weaker since the 34. of H. 8. in Ferrer Case, which is the first time that ever they Judged or Imprisoned any Body, even of their own Members, much less any other Body for what Offence soever, though never so much in Violation of their Privileges: And that was when Ferrer a Member of their House sitting the Parliament, was Arrested and Imprisoned in the Counter, and their Sergeant sent by them, only to demand their Member to come and attend the House, (not to bring those who had Arrested him as Delinquents to their Bar, or any ways to Punish them) yet he was Beaten, his Mace broken, glad to return himself, and leave the Member behind. Then could they with their Speaker come up the whole House to the Lords Bar to complain, and pray them to do them Justice: And the Lords upon hearing this Complaint, judged the Contempt to be very great, and referred the Punishment to them, being themselves it seems upon other Business, and not at leisure for that. Here was the beginning of the House of Commons Punishing any Body, they were permitted to Inflict the punishment, when the House of Lords had Judged the Offence.  
For before that time they could but complain of any Wrong received, the Lords were to Judge of it, and punish the Offender. If a Sheriff had not carried himself well in an Election of a Knight of the Shire, the Lords took Course in it.  
5. H. 4. n. 38. The Sheriff of Rutlandshire had returned Onby instead of Thorp, who was duly chosen, the Lords upon Complaint to them, command him to amend his Return, and commit him to the Fleet, and put him to Fine and Ransom at the King's pleasure.  
18. H. 6. n. 18. The Sheriff of Cambridgeshire had made no Return at all: The King by Advice of the Lords Spiritual and Temporal orders a new Election, and the Sheriff to make Proclamation, that no Person come thither with Arms in disturbance of the Peace.  
38. H. 6. n. 35. Many Knights of Counties and other Members had been unduly returned, yet were received to sit, the Commons come, and desire they may be allowed for good, and no Sheriff incur for it the penalty of the Statute 23. H. 6. which the King and Lords assented to at their Request.  
If any of the Members or their Servants were Beaten or Wounded, or Arrested, the House of Commons could not themselves punish them by their own Authority, but must come to the King and Lords, and pray in their Aid, sometimes to punish them judicially, sometimes to make an Act 〈◊〉 Parliament for it, as was done 5. H. 〈◊〉 the Case of Rich. Chedder, Servant 〈◊〉 Tho. Brooke Knight for Sommerset●●●●e; who was Assaulted and Beaten by one john Savage: The King by the Advice and Assent of the Lords at the Request of the Commons ordained that Savage should appear and yield himself in the King's Bench, within a Quarter of a Year after Proclamation made for that purpose, and appearing or not appearing (if attainted of the Fact) should pay double Damages to the Party, and make Fine and Ransom at the Kings will; and so to be done in time to come in like Cases. And n. 74. of the same Parliament, the Commons pray, That all such Persons as shall Arrest any Knight, or Burgess, or their Servants, As Parlementz venantzes, illeoques demurrantzes, & a lour propres restournantzes, coming, staying, and returning (not Forty days before the Sitting, and Forty days after, as now) should pay Treble damages to the Party grieved, and make Fine and Ransom at the Kings will.  
31. H. 6. n. 25, 26. Tho. Thorp their Speaker, and Walter Rail a Member, during a Prorogation, had been taken in Execution, and laid up in Prison: when the Parliament came, they wanted their Speaker and one of their Members, and there-upon sent up some of their Number to the Lords to complain, and desire them to set them at Liberty, (far from going about to do it themselves;) the Lords advise with the Judges, and after Consultation think not fit to deliver them, because they were imprisoned upon a Condemnation before Parliament, when there was no Privilege, which they signify to the Commons, and charge them in the King's Name to choose another Speaker, which they did, one Sir Thomas Charlton. Yet if any of the Members or their Servants, were arrested within time of Privilege, then upon complaint the Lords did use to set them at Liberty, as they did, 8. H. 6. n. 57 William Lake Servant to William Mildred Burgess for London. 39 H. 6. n. 9 Walter Clerk Burgess for Chippenham. 14. E. 4. n. 55. Walter Hyde, Burgess for the same place. 17. E. 4. n. 55. john Atwell Burgess for Exeter.  
But the House of Commons never pretended either to Discharge any body out of Prison, or to Commit any body to Prison, or impose a Fine in any Case whatsoever, till that 34 th' of H. 8. when it was in one particular Case permitted, and referred to them by the House of Peers: Nor indeed can it stand with Reason and the Rules of Justice, they should have such a Jurisdiction, in regard they cannot give an Oath. And is it rational or any ways just, that any Man should either be disseised of Property or deprived of Liberty, without there be Testimony upon Oath, that he hath done some thing to deserve it? This seem to be against the Fundamental Laws of the Kingdom.  
All this considered, it is not probable, (were it true, that the House of Commons did dislike that Acting of the Lords in the Case of Rich the Second, to Unthrone and Imprison their Lawful King) that yet out of that dislike, and to avoid the present evil of being made joint Actors in, and Parties to that particular Judgement, they would renounce being Parties to any, and for ever debar themselves of a Power and Privilege, which did justly belong to them; Nay more, say, they never had such a Power, that it belonged only to the King and Lords, and that their part was but to sue and to petition: This is hardly to be believed.  
But who reads the Story, will see that the Inference is not true, and will find that at that time the Common People, and even that House of Commons were full as much, if not more than the Lords, displeased with King Richard, and favourers of Henry the 4 th', who did so much rely upon the affection of the People, that he brought no Military force with him out of France, where he had remained in Banishment, and that he landed at Ravenspurre in Holderness only with fifteen Lances, but soon increased to an Army of threescore thousand Men, for (as Historians say) his strength was in the Hearts of the People, where King Richards should have been, who had so little of their Good-wills, that when he was sent from Chester to London, certain Citizens had conspired to way-laye him and kill him, if the Lord Major having intelligence of it, had not prevented it, himself riding forth with convenient company to guard him to the Tower. And when the Parliament came, which Henry the fourth then Duke of Lancaster called by Wri●●s of Summons in King Richard's name, the House of Commons was as forward as the Lords in every point, for Decrying, Condemning, and Deposing of King Richard; When his Resignation was declared unto them by the Archbishop of York and Bishop of Hereford, whom King Richard had made his Attorneys for that purpose, and they were demanded, if they would assent and agree to it, they with one general Voice did expressly accept and admit the same. When the Articles of his Charge were read unto them, they all agreed that his Crimes were notorious, and he worthy for the same to be deposed of his Princely Dignity, and joined in appointing Commissioners, two Knights, Sir Thomas Erpinghan and Sir Tho. Grey for them, to go with two Prelates and two Temporal Lords for the Peers, to the Tower, to pronounce unto King Richard the Sentence of his Deposition: And they promoted several things that Parliament in favour of Henry the 4 th' and his Friends, and to the Depression and Reproach of Richard the second, and his Friends, which they inserted among their Petitions, which according to usage they presented at the end of the Parliament, which being granted at their request were established for Acts of Parliament. So as the Penner of that Paper of Reasons for a Conference was much mistaken in what he there said of the Commons being then unwilling to be made Parties to that Judgement because it was to Depose their Lawful King, and sure he either never had read the Story of those times, or had forgotten it; otherwise he would have known, that they were as busy Actors as the Lords in that Deposing, I mean in the Prosecution of it, though not in the Judgement given upon it; to which as to all other Judgements they disclaimed to have any right or Interest. And it is in my Opinion rather an unanswerable Argument, that they had no Interest, nor could have none, in any Judgement, their Disclaiming it at this time and upon this occasion, when they knew, that nothing would be done to displease them, and they were sure to obtain almost any thing they would ask with reason, and with any colour, of a new King so much beholding to them, whose best Title to, and strongest Hold of his New-gotten Crown, was their Affection and goodwill towards him: Therefore the Lords may very well own the citing of that Record, and not account it any Dishonour to them, notwithstanding the gentle admonition given them to the contrary by the Writer of that Paper of Reasons.  
And so, I hope, I have sufficiently evinced this truth, that the sole Judicature of Parliament is lodged in the House of Peers, and that all who come for relief to Parliament must have it there.  
It now rests to show, that it extends to the Relieving of such as have suffered wrong in Courts of Equity, and receiving of Appeals from those Courts; We have already seen, that in case of Delay of Justice, the House of Lords doth give Relief, and by the same reason they may do it in case of Denial of Justice, and of doing Injustice: And in truth, there is greater Reason for it, for when Justice is but delayed, a little waiting and patience may happily bring a Remedy; but when an unjust Decree is given, there is a Ne plus ultra in that Court, no help is to be there expected, and without such an Appeal the Party grieved must be without Remedy.  
Then, why not as well receive an Appeal from a Court of Equity, and give Relief upon it, if there be cause, as to reverse an Erroneous Judgement upon a Writ of Error from a Court of Common Law? as hath been said already, there is more danger from a Court of Equity, where one's Doom depends upon the will of one Man, that is not tied to the strict Rule of Law, than where there are four Judges, who have that strict Rule to go by: And can it be believed, that in a Government so well modelled and established by the Wisdom of our Ancestors, as this is, there should be a standing known Remedy appointed for the lesser evil, which apparently will more rarely happen, and none for the greater, which probably may befall us much more frequently?  
In the third place, one may argue thus, By the constitution of this Government generally from all Inferior Courts, where any Body is grieved, he may appeal to a Superior, and so Gradatim, till he come to the highest of all, the Supreme Judicature in Parliament, as 50. E. 3. n. 38. was said to the Bishop of Norwich, that Errors in the Common Pleas were to be corrected in the King's Bench, and of the King's Bench in the Parliament. So from particular Courts, that are in several Counties, and from Judges of Assize, yea from Ireland, the Party grieved resorts to the Courts of Westminster, and from them to the Parliament, This is the ordinary Tract, but where it is otherwise provided by Act of Parliament in special Cases to make some Judgements in some Judicatories final; Else the last resort, where all appealing terminates, is the supreme Court of Parliament, whither they have still come from all the Courts in England, sometimes Gradatim by steps going first to other Courts, sometimes immediately Per saltum from the Court itself, where the Judgement complained of was first given.  
And so have they received Complaints, and given Relief from Sentences in the Star-Chamber, as in 1641. April 2. to Mr. Lambert Osbolston; In the High Commission to Nicholas Bloxam, 1640. Febr. 9 and to Sir Robert Howard, December 22. the same Parliament, and to john Turner, December 30. who had lain fourteen years in Prison, by a Sentence of the High Commission: So from an Order of the Counsel Table, to William Waters, and Thomas Waters, january 25. who had been committed thence for refusing to pay Ship-Money, and they made Dr. Clerk, and Dr. Sibthorp reimburse their charges, and pay them 100 l. damages for procuring them that trouble by a false Certificate. The 9 th'. of February, from a Sentence in the Ecclesiastical Court at Gloucester, by which john Radway, William Newark, and Walter Coats, had been committed to Prison and Excommunicated. And February 23. The Lords gave Relief to Abraham Hill, who had been committed to Prison by the Major of Colchester. Multitudes of such Precedents may be produced, who will take the pains to look over the Journals; but these are sufficient to show, that upon complaint the House of Peers hath still given Redress to what ever hath been done amiss by any other Court, Ecclesiastical or Civil, Court of Law, or Court of Equity, and was never found fault with till now.  
But now they must not meddle with Appeals from Decrees in Chancery, and if a Member of the House of Commons be concerned, it is then a Breach of their Privilege, and that House will punish any Counsel that shall appear at the Lords Bar to plead against a Member, together with the Party himself that brings the Appeal, and all others employed by him in the soliciting and following his business.  
So then a Person that cannot obtain Justice in Chancery, who perhaps hath been brought thither against his will, and is barred by an Injunction there from pursuing his Right in any other of the King's Courts of Westminster, and that wrongfully (as Injunctions are some times laid on in Chancery): There he cannot have Right, but is oppressed with an unjust Decree, and he hath no Remedy, but must lie under that Oppression, and the Supreme Court of Judicature in the Kingdom, which receives Complaints and gives Relief against the Erroneous Proceeding of all other Courts, must be Impotent in this behalf; This is not only a Derogation to the High Court of Parliament, but it would be a great Defect in the general Administration of Justice in this Kingdom.  
To this is answered, Yes, there is a Remedy proposed to prevent a Failer of Justice, The King may grant a special Commission whensoever there is occasion to certain Persons (to the Judges, as it was 43. Eliz.) to reheare the Cause and give relief to the Party grieved: But it is replied, First, That it may be doubted, if this can be done without an Act of Parliament. Secondly, Admit it may, yet as the King may grant it, so he may refuse it, for there is no Law to make him do it Ex debito justitiae, therefore if he doth it, it will be but Ex gratia & ex mero motu, which doth not salve the Objection, that there would be a defect in the established Rule for the Administration of Justice, which ought to make the doing of Justice a necessary Duty incumbent on the Magistrate (be he Supreme or be he subordinate) and not leave it voluntary to himself, to be Ad libitum. It cannot be believed, that the Wisdom of our Ancestors would leave the Administration of Justice so loose and uncertain. We see how in the time of Henry the Eight, when they annexed all Ecclesiastical Jurisdiction to the Crown, they by Act of Parliament 25. H. 8. c. 19 gave the King power by Commission under the Great Seal to appoint such Persons, as he shall Name, to reheare any Cause judged in Ecclesiastical Courts, whereof any Person is grieved and will appeal, and it cannot be denied him: So in Queen Elizabeth's time they provide for those who are grieved with Judgements given in the King's Bench or Exchequer, and because Parliaments were not so frequent as formerly, that Men should not stay long for Relief, 27, & 31. Eliz. they appoint a rehearing by all the Judges, meeting in the Exchequer Chamber, from whence they might afterwards have their Recourse to Parliament: But still the Statute leaves it to their Election to sue in Parliament, and not go to the Judges at all except they please: Now, can we imagine they would take no care to give relief from unjust Decrees in Chancery, but that the Current of Justice must there be at a dead stand? A Man perhaps be Ruined against all Law and Equity, and no help for him, no remedy, for so it must have been, if a Parliament could not relieve him: For that way of having a Commission under the Broad Seal directed to the Judges, was never thought on till about the 43. of the Queen in those few Cases, nor hath it ever been Practised since that we know, so as we may be bold to affirm, that our Ancestors knowing the Parliament, to be the Supreme Court, to which all Persons aggrieved with the proceedings of Inferior Courts, did apply themselves for Relief, and there had it, thought it not needful to make any other Provision for those who should receive wrong in Chancery; where heretofore they did not often do wrong, because in those days they had little work, not meddling with many Causes, and the Chancellors were commonly Churchmen.  
Sir Edward Cook saith, That the first Decree in Chancery that ever he observed was 17. R. 2. and that an Act of Parliament had passed that same Year, which gave the first ground for those Proceedings, giving the Chancellor power to award Damages according to his discretion to such as were vexed in that Court upon untrue Suggestions, such Suggestions being duly found and proved untrue. Certain it is, they were in those times very rare, the same Sir Edward Cook saith, That none are found reported in their Law-Books before the Reign of Henry the 6 th'. And this is one Reason, why we find no Appeals in the ancient Journals: Besides (as we have said before) that the Journals are many of them lost, and those that remain are very imperfect. Yet some there are: That very first Decree before mentioned of the 17. R 2. n. 10. came to be examined 〈◊〉 the House of Lords. The Case was t●●s, john de Windsor being put out of Fossession of three Manors in Cambridgeshire, by Sir Robert de Lisle, they refer themselves to the Arbitration of the King and Privy Council, who find it reasonable that Sir Robert de Lisle should restore them to Windsor, and a Decree is made in Chancery to put this in Execution: Lisle then petitions that he may be left to the Common Law: The King grants it, sends a Privy Seal to the Bishop of Winchester, who was then Lord Chancellor (and not William Courtney Archbishop of Canterbury, as Sir Edward Cook hath it) to remand the whole Matter to be tried at Law: The Chancellor doth it by a Writ de Procedendo under the Broad Seal. Sir Robert de Lisle in the Interim sells these Lands to Sir Richard le Scroop. john de Windsor sets forth all this in a Petition to the King and Lords in Parliament, and accuses Sir Richard le Scroop of Champerty. The Lords order all the Proceedings to be brought into the House, what passed in Chancery, and what at the Privy Seal. All which was viewed and examined by them, and upon the whole Matter they gave this Judgement, Quod non fuit nec habebatur aliqua Cambipartia, Quod predictus Johannes nihil capiat per Petitionem suam, Quod predi●lus Ricardus eat inde quietus, ac Quod predictus Johannes pro●equatur ad Communem Legem in hac parte si sibi viderit expedire. The Lords here do examine, and Judge of what was done in Chancery, which shows their Jurisdiction to extend thither.  
And even their taking notice of any delay there, is Argument sufficient of this Jurisdiction, which Jurisdiction the Statute 14. E. 3. c. 5. doth fully prove to have been in them before the making of that Statute; for that Statute doth only provide for the placing it in some Lords named by the House to be exercised by them after the Parliament is Risen, until it meet again, and for that Interval of time: Which shows that during the Parliaments 〈◊〉 such an expedient needs not for the relief of those, who are de●ayed in Chancery, because then the House doth it by a Power inherent in them, and which so hath been time out of mind: For there is no Record, when that Power began, no more then for their Power of rectifying Erroneous Judgements at the Common Law, (So that, if the Lords be asked, when that Power was given them, and where it is Recorded? They may answer as the House of Commons answered them in another Case, about Imposing upon Merchandise, that it will be found on the backside of the Record, by which they are Authorised for Erroneous Judgements: For in truth there is no more a Record for the one then for the other). Both those Powers are naturally of the Essence of a Parliament, not conferred upon it by any Law extant; But as the Common Law of the Land, it is by Prescription, time out of mind, which is the difference between the Common Law and Statute Law: The Common Law is by ancient Usage and Custom, of which no Man knows the beginning: Statute Laws have a known time of beginning, when first they were made and established by King Lords and Commons in Parliament, before which time they were not in being.  
Now we may say that the Power to correct the Errors of Inferior Courts, as well of Law as of Equity, and so of the Chancery is lodged in Parliament, as a part of their Judicature, by the Common Law of the Land; I say of the Chancery, both as it is a Court of Equity, and as it is a Court of Common Law; For both those Courts are in Chancery, that of Common Law Coram domino Rege in Cancellaria is of all Antiquity, and upon a Judgement given in this Court lies a Writ of Error returnable in the King's Bench, and consequently from thence to Parliament: that of Equity is not so ancient, it is a Power grown up by degrees; Sir Edward Cook saith, That some are of Opinion that a Statute made 36. E. 3. did first give the Chancellor this Authority, which Opinion he confutes, and refers it rather to another Statute of 17. R. 2. as hath been said before; however it is certain that In principio non fuit sic, in the beginning it was not so; And when ever, or how ever it began, when once it was begun and had a being, it became subordinate to the Jurisdiction of Parliament: which one may boldly conclude both upon the general Reason, of all Inferior Courts being subordinate to the Supreme Court, and particularly from the Constitution of the Court of Chancery, which in its ancient Legal capacity, as it acts Secundum Legem & consuctudinem Angliae, is in such a subordination, and A fortiore then ought it to be so, acting in a capacity of a later Acquisition, and in a more arbitrary and irregular way.  
In latter times, that is from 12. jac. all the last King's Reign, and so much as is passed of the King's Reign that now is, Precedents are frequent of Appeals in Parliament from Decrees in Chancery, (which yet is five and fifty years) And it hath formerly been the Opinion of the House of Commons, that modern Precedents were best; and strongly was it urged by them in the Case of the Earl of Clarendon, to induce the Lords to commit him to Prison upon a general Impeachment of Treason without special Matter shown, from one single Precedent of that being done in the Case of the late Earl of Strafford, against multitudes of Precedents produced to the contrary.  
But now they are of another Mind. And because we find not in the ancient Rolls of Parliament Presidents full in the Point of Appeals from unjust Decrees in Chancery, they do deny, that the Parliament hath now such a Power of receiving Appeals. To which it hath been already said, That the ancient Rolls since the time that the Chancery hath Acted as a Court of Equity in 17. R. 2. are many of them lost, those that remain are very general, especially since Henry the sevenths' time mentioning only public Bills, scarce any thing of particular Businesses, sometimes naming the Parties that had Suits depending in the House of Peers, but not expressing the Matter in difference, that one cannot tell whether they were Appeals or Original Causes; Let any body peruse the Journals of Parliament of H. 8. E. 6. Q. Marry and Q. Elizabeth, and he shall find it so.  
But go to the times before, and you will see that the House of Peers did exercise their Jurisdiction over the Chancery, as well as over all the other Courts of Westminster; And this they have done in all times. The Statute of 14. E. 3. shows they did it in case of delay of Justice. And they have sometimes stopped a Proceeding in Chancery, and ordered the Business to be proceeded in in another Court.  
3. R. 2. n. 22. Sir Philip Darey complained that the Prior of St. John's of Hierusalem ●ued him in Chancery for two Manors, which he said that Edward the 3 d had granted to his Father, and produced a Deed, showing that the Prior's Predecessor had passed away the Fee of those Manors to Edward the 2 d. The Lords order that Deed to be carried to the Barons of the Exchequer, they to examine the King's Title, and the Proceedings in Chancery to be stopped. The same Parliament the Earl of Pembroke and William de Zouch complain that Sir Robert Roes, and Thomas his Son Sued them in Chancery for certain Lands in Yorkshire that had been formerly belonging to William Cantloe, pretending certain Feoffments to have been made by Cantloe to their advantage, and that they endeavoured likewise to get an Order for a Trial in the Country where they were powerful; The Lords take the Matter into their own hands, and refer the Examination to three of the Judges, Knevet, Cavendish, and Belknap to examine and report, who do report those Feoffments to be otherwise then Sir Robert and his Son pretended. The Chancellors have themselves sometimes Repaired to the Lords for direction in Businesses of Difficulty and of Consequence as 9 H. 5. The Abbot of Ramsey Sueing in Chancery for a Prohibition to stop Proceedings in the execution of a Sentence given in the Arches against his Tenants in a Case of Tithes, the Bishop of Durham Lord Chancellor, brought the business into the House of Peers to have their direction in it, declaring all that had passed before him; and Counsel then being heard on both sides, the Duke of Bedford (who was Guardian of the Realm in the absence of the King) and the Lords asked the opinion of the Judges who were there present, the Judges of ei- Bench and the Chief Baron, charging them to give Lour bon advis selone l'exigence de la ley pur de pluis seure exhibition de Iustice celle part, to give their Advice what was required by Law for the more certain rendering of Justice in that particular, which they did: And after mature deliberation Sentu suit per le dit Garden & Seignors selone l'advis de le dits justices & Baron, etc. It was resolved by the said Gaurdian and Lords according to the Advice of the Judges that no Prohibition should be granted.  
We see by these ancient Precedents the Power that the House of Peers did heretofore exercise over the Court of Chancery; It is true that we have not such frequent Examples of it in those times as we have of latter days within some fifty or threescore years, since the work of that Court hath swelled to that bigness as now it is, which hath furnished much Matter for Appeals; and was never questioned till now. In so much as in the Year 1666 when the Case of Skinner the Merchant complaining of Wrongs done him by the East India-Company was before the Lords, the House of Commons interposing, and declaring against the Lords meddling with an Original Cause, and denying them that Jurisdiction (to which notwithstanding their Lordships had an undoubted Right, and maintained it to the last both by Reason and Presidents) yet the House of Commons in all those Debates and Conferences upon that Subject, always allowed them their Judicature in Appeals and Writs of Error, which they said they did not at all question; but now they are come to question Appeals, one step further; and upon the same Ground, and with as much Reason they may take away Writs of Error next, and so put an end to all Judicature in the Supreme Court of Judicature. But I hope I have made it clear, that both those parts of Judicature are and must be Essential parts of the Supreme Judicature, and the Matters they concern to be wholly within the Cognisance of it.  
That which I hear sticks with many, is the present Constitution of the House of Peers, Composed of so many young Lords, who have not Experience in Business, and may be thought to mind Modes and Fashions, more than serious things; And perhaps the Prospect of what is coming on, may in their Opinion not give better hopes; However Right is Right: If it be a Right belonging to them, till there be a Law to dispose of it otherwise, it ought not upon any prudential Ground to be taken from them, that were to set the House of Peers, very loose, for by the same reason one may as well take away all their other Rights and Privileges.  
But let us take the House of Lords as it is, though there be many young Men, there are some more Elderly, and it is they commonly that sit out hearing Causes, and even amongst the young Lords there be some that apply themselves to Business: In the general, it may be said of that House, that many among them are Persons of Honour and of Integrity, that will not be Biased, and of experience to Understand and Judge aright of such Matters as are brought before them: The great Officers of the Kingdom are part of that Body, who in all reason should be knowing Men; the Chancellor of England is always their Speaker, who is commonly a Person skilled in the Law; and they have all the Judges of the Land, to be their Assistants, with whom they advice, and by whose advice they are guided in difficult Points of Law, as it is said in Flouredew's Case 1 H. 7. Ter. Pasc. f. 20. Senescallus cum Dominis Spiritualibus & Temporalibus per Consilium Iusticiariorum procedent ad Errorem corrigendum; by the Counsel and Advice of the Judges they shall correct the Errors, viz. of the Judgement complained of. So it is probable, and there is Ground to hope and expect, one may find Justice here, as soon as ●n any other Judicatory; Nay perhaps sooner hear. For when a Lord Chancellor or a Lord Keeper is concerned, as he is in all Appeals from Decrees in Chancery (which is the proper Question at this time before us) a Commission to the Judges, or to any other Sett of Men, is not so likely to relieve a poor Man, that is oppressed by an unjust Decree, (whereby those Commissioners may incur the displeasure of so great a Person, by censuring and vacating his Act) as the House of Peers, who are not in that Awe of him and Subjection to him, as all particular Persons are. Which consideration alone hath heretofore been sufficient to justify the Lords interposing even in the ordinary Judicature of the Kingdom, in Causes between Party and Party: And the Commons themselves did then so far approve of this, as they made it their desire to the King, that it might be so: So as it passed into a Law, to be an Act of Parliament, and a Statute, according to the Formality of making Laws in those times. 1 R. 2. m. 11. They pray Que querele entre parties ne soit attemptez ne terminez devant Srs. ne Officiers du Conseil mes que la commune ley courge sans estre tarry es lieux on ils soloient dancien temps estre terminez sil ne soit tickle querele & encontre si grande personne que home ne suppose aillours davoir droit. The Answer is, Le Roy le voet. They pray, That Suits between Party and Party may not be retained and determined before the Lords nor before the Council▪ but that the Law may have its Course, and no Obstruction of it b● there where such Businesses did anciently use to be determined, except it be in such a Suit, and against so great a Person, as one cannot otherwise hope to have Justice; and the King grants it. And 1. H. 4. n. 160. this Statute is again Confirmed. Now I know not what S●●●e nor what Business can be fitter to be within this Exception, then where a Lord Chancellor or a Lord Keeper is concerned for the maintenance of a Decree which himself hath made. Besides we know what Influence that great Officer hath in all Commissions, that Issue under the Great Seal, for naming and appointing the Persons that shall be Commissionated by them: And certainly one that complains of Injustice done by so great a Person would not willingly, that he should have hand in appointing the Persons that must Examine and Redress it. So as all things considered, I do not see where such a Power as this could better be lodged, then in the House of Peers; if it were not already there; and that we were now to choose where it should be placed.  
Yet all Men are fallible, and Parliaments may err, and do err many times; and therefore as commonly second Notions and second Thoughts are better, and consequently second Judgements, so there lies even an Appeal from the first Judgement in Parliament, but it must be still to the Parliament, as the Law Books say, Error in Parliament convient estre reverse per Parliament, that is in another Parliament, or another Session, not in the same.  
All this tends to show, that not only the Right of Appeals is in the House of Lords, but that neither can it be better any where else: Yet there is still one Point behind, not yet treated of, which must be cleared before I make an end; and that is, Whether the Lords may proceed upon an Appeal, if a Member of the House of Commons be concerned: And the same question than may be moved concerning Writs of Error, for if the Privilege of that House extends to the one, it must extend to the other, the same reason being for both, as likewise for the Lords not meddling with any Business, wherein any of their House is concerned.  
In the first place let us consider what the Usage hath been heretofore, and what the Judicature of the House of Peers hath been, and how exercised in relation to the House of Commons. That heretofore in the Ancient times even till Henry the 8 th'. when the House of Commons did need any thing, either for repelling any Injury done to them, and punishing those who had done it; or for supplying them with any thing they wanted and desired for their advantage and well being, they did then come and pray in the Aid of the Lords, who did examine the particular Businesses, and apply the necessary Remedies, (they being altogether unable to help themselves) hath I think been sufficiently proved already in the former part of this Discourse.  
The Question is now, as that was when they complained, and when it was at their desire, so if when others complained of them, and sought remedy against them, the Lords had then power to receive the Complaint, and relieve the Party grieved; Which questionless they had: Nor was it ever known that ever the House of Commons did before pretend to such a Privilege, as that their Members should be exempt from being put to answer in the House of Lords, when any Suit was there commenced against them. 16. R. 2. n. 6. Sir Philip Courtney being Knight for Devonshire, presents himself to the House of Peers Disant coment il auoit entend●z que certeins gentzes lui avoient accusez & esclandrez au Roi & as Seigrs. etc. Saying, he heard he had been accused and slandered to the King and Lords of doing great wrongs, and prayed he might be discharged from serving in Parliament until he was purged and cleared of them, and the Record saith, A cause que sa priere sembla au Roi & as Seigrs. honest le Roi luy ottroya sa request & lui en dischargea, because his Prayer seemed reasonable to the King and Lords, the King did grant him his desire, and discharged him of his attendance: This was upon the Wednesday, the Monday after at the request of the Commons he was restored to his Place and good Name. That very Parliament he was again Petitioned against by Nicolas de Pontingdon for dispossessing him of the Manor of Bygelegh, upon pretence that Thomas his Father was a Bastard; and by Richard Somestre likewise, for dispossessing him of some Land in Thurverton; he appears upon it, and those Differences are referred to some Person there named to end them by a certain time, which it seems they could not do; for in 4. H. 4. I find Pontingdon petitioning still against him, and making the same complaint of the same unjust act, and then the Lords refer the Matter to be tried at Law, but determine and appoint first what shall not be the Point in Issue, (to wit a pretence of Sir Philip Courtneys of a Release made unto him by one Thomas Pontingdon a Parson,) than they appoint what shall be in Issue; to wit, the Bastardy of Thomas the Father. The House of Commons it seems did not in those days find fault, that a Business concerning a Member was by the Lords entertained, and a Determination made in it; and more, that a Member should think himself unworthy and unfit to sit in the House of Commons, because there was an Accusation brought into the Lord's House against him, and to make it his suit to the King and Lords to dispense with him from sitting, till he was cleared, and till that he stood right again in their good Opinions: The House of Commons did not then send him to the Tower for showing his respect and deference to the House of Lords: So far from it, that they come themselves, Suitors to the King and Lords in his behalf, and pray that he may be restored to his place in their House, as likewise to his good Name, and at their request the King and Lords do it. There was not in those days the least question made, nor the least difference between the two Houses upon on this score: Now, Counsel has been pulled from the Bar in Westminster Hall, and sent to the Tower for having but pleaded at the Lords Bar in a Cause, wherein a Member of the House of Commons hath been concerned, & the so doing voted a Breach of their Privilege; which would not have been so thought heretofore, as appears by this Precedent. And there are other Precedents both Old and New, which demonstrate the truth of what I say. 3. R. 2.24, 25. john Earl of Pembroke, and William le Zouch complain in their Petition, A lour tres redoute Seignor le Roy & as Seigrs. du Parliament, that Sir Robert de Roos of Ingmarthorp, and Thomas his Son sued them in Chancery, and endeavoured to get a Trial at the Assizes in the Country, for some Lands settled upon them by their Kinsman William de Cantlow, which Settlement Sir Robert Roos (they say) maintained to be otherwise then in truth it was, and to be for the advantage of his Son, by which means he would recover those Lands from them. The Lords refer the Business to three of the Judges, who are to call all Parties before them, to examine the Matter; and to report it to the House: which they did, and then delivered the Examinations and the Account of their proceedings in Writing to the Clerk of the Parliament. Sir Robert Roos was then Knight of the Shire for Yorkshire, yet being Summoned appearred before those Judges, who had order to Examine him, and the Business which concerned him. 5. R. 2. n. 61. Sir William de Eurcester and Margaret his Wife set forth in their Petition, several eomplaints of the miscarriages and deceitful dealings of Sir Thomas Hungerford entrusted by them in many Businesses; who had warning to put in his Answer, Luy quiel Monsieur Thomas (saith the Record) vint en Parliament & en sa persone faisant primerment sa protestation de adjouster corriger & amender si embusoigneroit, y fist sa response & le mist avant en Parlement en escript en la forme que sensuyt, La responce de Thomas Hungerford Chevalier, etc. That is, the said Sir Thomas came into Parliament in Person, making first protestation, to add, correct and amend as there would be need, then put in his Answer in Writing in the form following, viz. The Answer of Sir Thomas Hungerford, etc. He was then Knight for Sommersetshire. And this appears, as well for him as for Sir Robert Roos, (that they respectively served for those Counties) by the Writts de Expensis Militum, which are in the Clause Rolls in the Tower for those Parliaments: The Journals of Parliament say nothing of it, nor can it be expected they should, for the Names only of the Persons and of their Business are there Recorded, whether or no they were Members of Parliament is not mentioned, nor taken notice of, as not material, nor no ways altering the Case: Sir Philip Courtney indeed is in the Journal expressed to be Knight for Devon, upon that special occasion of his coming up to the Lords House and desiring to be discharged his attendance till he was purged, else neither had he been known to be so by the Record of the Journal.  
We may see that by the Journals now; Where men's Names are entered as there is occasion for it of Businesses in which they are concerned, but never of their being or not being Parliament Men: Yet, it being within our Memory, we remember some, as Sir Arthur Ingram 21. Jac. May 28. he was then a Member of the House of Commons, yet one Mrs. Grizil Roger's petitions the House of Lords, complaining how she was sued and vexed in several Courts by him and others there named for some Lands in Sommersetshire, and she desires their Lordships to end those differences and to settle her Title; Upon which there is a long Order made for that purpose; every particular thing in question between them is determined, and all Suits are ordered to cease in those other Courts. In the Parliament of 16. Car. 1. Apr. 6. Sir Robert Pie was a Member of the House of Commons, and yet the Lady Dyer sets forth in her Petition to the Lords, how he and one Mr. Button had extended Lands belonging to Sir Richard Tichburne at a far undervalue, so as she who had likewise a Judgement after theirs upon those Lands for a Debt oweing to her, was in danger to lose it: The Lord's order Counsel on both sides to agree upon drawing up Assurances for the satisfying of all Parties, the Parties themselves to sign and seal them, and so the Lady Dyer to be paid her Money.  
The House of Commons than found no fault with these Proceedings, there was no Quarrelling with the Lords, nor questioning of their Jurisdiction, no Vote for committing of those, who petitioned for relief in a Cause against a Member, no sending of Counsel to the Tower for pleading for their Clients at the Lords Bar, no stop of the Current of Justice: It was then observed, what the Wisdom of our Forefathers had enjoined Westminster the 2 d. Nemo recedat a Curia Regis sine remedio; But, if that should be allowed, which is pretended, and challenged by the House of Commons, as their Privilege, if a Member of theirs be concerned, though a Man have received never so hard measure, though never so erroneous and unjust a Judgement have been given against him in any of the Courts of Westminster Hall, (for there is the same reason for both, for Writs of Error from a Court of Law, as from Appeals from a Court of Equity, if Privilege of the Commons House, exempts from the one, it must exempt from the other) there is no help for him, he must sit down, and lay his hand upon his Mouth, and not once whisper, but must Recedere a Curia Regis and that the chief Court, the supreme Court, sine Remedio. So here is an absolute failer of Justice, which as Sir Edward Cook saith, the Law abhors.  
And as it seems to me, it is upon an irrational ground; For here is Privilege of Parliament against the Parliament itself; which makes a Parliament Felo de se to give a Privilege, which enervates its Power, a Power which is proper and peculiar to Parliaments, the Dernier Resort, by which it helps, when no other Court can help▪ This is taken away, and cannot exert itself, when a Member of the House of Commons is concerned: Against the Rule of all Courts, for in other Courts as Chancery, King's Bench, Exchequer, the Officers that belong to those Courts claim a Privilege to be sued no where else, but no Privilege to free them, that they shall not be sued in their own Courts: Now the House of Peers is a Court of Judicature, as it is a Part of the Parliament, Pars constituens of a Parliament, and the Members of the House of Commons have Privilege, as they are Members of Parliament, and as their House is the other Pars constituens of a Parliament, for both together are Parts constituentes Parliamentum, and both make but one Parliament, though they be two several constituting Parts. And it is not rational to think that either of those Parts can be entitled to a Privilege, which shall abridge the other Part from doing those Functions, which are proper and natural to it. As if the House of Peers should assume to themselves a Privilege, that the House of Commons could not without their leave and consent first had, propose the Raising of Moneys by way of Tax or Subsidy: This is against the nature and constitution of our Parliaments, and therefore it cannot be imagined, to be true, that such a Privilege can belong to the Lords, by one that understands any thing of the Nature of Parliaments: And truly it is even as great an Absurdity to say, that the House of Commons hath a Privilege to give a stop to the Lords proceeding in the hearing of a Cause, as a Court of Judicature, if one of their Members is concerned in it: For the hearing of Causes by way of Appeal or of Writ of Error, is as proper and as natural to the House of Lords, as a Bill of Subsidy to begin in the House of Commons, is proper to that House.  
But I have heard it said, that this would be destructive to the House of Commons, if the Lords could compel their Members to appear at their Bar, and attend their Causes there; and if they would not appear, commit them, as is the use of other Courts; For, say they, as they commit one, they may commit more, and even fetch them all out of the House, to leave none or not a number to attend the Service there. But first, this is a mischief so unlike ever to happen, that one need almost as little fear it, as the Sky falling to kill all the Larks, if it were so, that they should take upon them to commit those that would not appear and answer; For it is not to be imagined, that so many would be concerned in Appeals or Writs of Error at one time, as that there would not be enough left to carry on the Business of the House, since at most perhaps two or three in a whole Session may be concerned.  
And if so small a number should, for their particular occasions, which they cannot avoid, being sued by others, be kept for some few days from attending the Public Service, the Matter seems not so great, since all along this Parliament for twelve or thirteen years together, this House hath had the goodness to dispense still with the attendance of at least two hundred of their Members, who have remained at their several Homes, for their pleasure many, all for their private occasions, without coming at all to bear their parts of the Houses Service: This is more like to be an Inconvenience to that Service, then if the Lords should commit two or three single Persons amongst them for not appearing upon Summons, when they are sued before them.  
But none of this need be feared: For the House of Lords doth not pretend to a power of committing any Member of the House of Commons, if they will not appear, nor any Body else for not appearing, or not answering being sued before them in a Civil Cause: If they will not appear by themselves or by their Attorney, and put in their Answer, being lawfully Summoned, and having no lawful Excuse for not doing what is required of them, and what they ought to do, but will stand out in contempt of their Jurisdiction, they will proceed to hear the Cause Ex parte, and determine it, as they did in the Case of the Dean and Chapter of St. Cedde in Lichfield, and the Prior of Newport-Pannel upon a Writ of Error 18. R. 2. n. 11, 12. etc. The Dean and Chapter had the Parliament before preferred a Petition, Anre S r. tres redoute le Roi & a les nobles S rs. de cest Parliament, etc. complaining of a Judgement in the King's Bench by which an Annuity of 20 Mark per ann. and an Arreare of an hundred, which they had recovered in the Common Pleas, was judged against them in the King's Bench, and had prayed a Scire facias for the Prior to appear returnable this Parliament, which was granted: And the Prior now Solempniter vocatus, non venit, being solemnly called appeared not: Whereupon the Record saith, Decanus & Capitulum petierunt judicium Parliamenti, & quod ob defaltam nunc Prioris procedatur ad examinationem Recordi & Processus praedicti Brevis de Errore, Quod in Parliamento concessum est. The Dean and Chapter demand Judgement, and that upon the Default of the Prior, they will go on to examine the Business, which the Parliament granted. They do so, and then give Judgement for the Dean and Chapter.  
And in truth there is all the Reason in the World it should be so, that a Man, who wilfully and contemptuously will refuse to appear, and will not stand to the Law, should at least not receive benefit and advantage by his contempt and by his own default: Otherwise, it is but not appearing, and one is sure never to have any thing judged against him; but he shall keep what ever he is once possessed of, right or wrong.  
Therefore the House of Commons need not fear being deprived of any of their Members for their being sued in the House of Peers; their Persons are safe whether they appear or no; but that must not hinder the Lords doing right to others, who have to do with those Members, and have Cause to complain of some Judgement given in their behalves in an Inferior Court: so that Objection falls to the ground.  
Nor in truth have I heard any that is of weight, to make me so much as hesitate in my Opinion of the truth of those Positions, which I have ever believed to be most true, and which I laid down at first to be the ground of which Discourse, and this I have endeavoured to make out to the satisfaction of others; As first, That the Parliament is the Supreme Court of Judicature, to Reform and Redress the failings of Inferior Courts, when either they delay Justice, or give wrong Judgements. Secondly, That this Jurisdiction is solely and singly in the House of Peers. Thirdly, That the House of Peers exerciseth this Jurisdiction, to the Relief of those who are Aggrieved and Complain, be it a Court of Law or a Court of Equity they complain of. Fourthly, That Members of the House of Commons are not more Exempt than others from this Jurisdiction, when they are concerned in any Case that is complained of. Now whether or no I have performed what I undertook, and said that which will satisfy those who will be satisfied, others must Judge: This only I will be bold to affirm, that in all I have said, I have delivered the Truth, and nothing but the Truth, but perhaps not all that is Truth upon this Subject; For I doubt not but much more may be said by those that know more than I do, and who are better skilled in the Ancient Records of Parliament than I am; yet I have said so much, and am so much more confirmed in my former Opinion and Belief of this truth, by looking a little further into it, and examining it more narrowly, then otherwise I should have done, if it had not of late been questioned and strongly opposed, that I shall be glad to hear what can be said against it, and what reason can be alleged in maintenance of that Opposition; Till when I shall rest, heartily wishing Truth may prevail, and that to stand and be submitted unto, which is agreeable to Justice, Equity, and the ancient Usage and Custom of this Kingdom.  
FINIS.   

ERRATA.  
Page, 20. Line 15. for defauce, Read default, and l. 17. for forsement. 1. fortement.   

Postscript.  
IN the citing of the Record of the Agreement between the King and Lords 4. of E. 3. mentioned pag. 19 one passage in it may be thought to have been purposely omitted, which truly was mere Inadvertency: and it seeming to restrain the Judicial Power of the Lords, that it should not extend to the Judging of Commoners, I have thought fit to insert it here. The words are these; after saying, That it was agreed between the King and Lords, Qe les Pieres qores sont, ou les Pieres que seront en temps avenir ne soient mes tenuz ne chargez a rendre jugements sur autres qe sur lur Pieres, there is added, Ne a ce faire mes eient les Pieres de la Terre poer, eins de ce pur touse iours soient deschargez, & quitez. That the Peers of the Land may not have Power to do this, but that for ever they may be discharged and freed of it, that was, of Judging any but their Peers. And if this had been an Act of Parliament, which had passed both Houses, and becomed a Law by having the King's Assent to it, no question the Lords had been bound up; and without another Act of Parliament to Repeal this, they could not have exercised that Jurisdiction, which they have exercised ever since in all Parliaments, and which those Lords themselves, who made that Agreement and Bargain with the King, did afterwards exercise in that very Parliament, in the Case of Sir Thomas de Bercley, whom they Tried for the Murder of King Edward the 2 d. The truth is (as is before said in this Treatise) it was but a sudden effect of Passion, and of an Indignation which they had conceived against themselves, for what they had been forced by the King to do most unjustly, in condemning the Earl of March, and Sir Simon de Beresford to death without calling them to answer. Nor yet do they say, they had not Power, clean contrary, it appears they had it, for they desire that Power may be taken from them, that neither they nor their Successors may have it for the future, but then having it, they could not by this act of theirs divest themselves of it. For nothing but a Law could do that, and it is clear that this was none, but merely an Order of that House, of which themselves were Masters, (as the House is still of all its Orders, and may alter or revoke them as it pleaseth) and themselves it seems did revoke this Order, for they afterwards in that very Parliament did the contrary in the Case of Sir Thomas de Barcley. But admit they had done so, and that their Order had still continued in force as to them, it could have no operation upon succeeding Parliaments to bind them. So as this Record cannot be said to be of any signification to impeach the Power of Judicature which is in the House of Lords, no not in the least degree. But I was willing not to conceal any thing, which hath but a semblance the other way: And indeed indeed the Truth will the better appear, and be made the more clear and perspicuous, by showing the weakness of all that can be said against it.  
FINIS.