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 unusquÃsque 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
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 â—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
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
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 Corà m 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-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 Corà m 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
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 Hadelow's Case Note Note An. Dom. 1624. Note