was accounted in those days Honos was not without the Onus The only Titles that we meet with in the Saxon times as we learn out of Mr. Lambert Sir Henry Spelman Mr. Selden and Mr. Cambden are Alderman which in the times of the Danes was translated into Eorl and in the Norman times into Comes And the Title of Heretoch which I have just now Explain'd and those other Titles of Vavasor and Thane had all a reference to possessions in Land And were rather Officiary than Honorary and were generally due to these Tenants in Capite who were the same with Barones For that of Alderman or Comes or Satrapa says Cambden in his Britannia Page 135 and 136. Comitis nomen ut dignitatem notaret sine administratione in usu non fuit in the Elder times and so says Selden in his Titles of Honour Page 604. Nec dum haereditaria fuit dignitas Initio dignitas temporaria posted vitae aequalis But in that Age Titles of Honour and Place were no more hereditary than Virtue and True Worth were which are not ex traduce In the beginning of William the Conqueror Comites caeperunt esse feodales hereditarii Dux nomen Officii non Honoris says Cambden Page 134 135. Oneris non Honoris It was no Title of Honour till King Edward the Third made his Son Edward the Black-Prince Duke of Cornwal And King Richard the Second that Prince's Son made Robert de Vere the first Marquess that is of Dublin And King Henry the Sixth made the first Viscount which still is also a name Officiary Selden's Titles c. page 621. The King's Thane was he that held of the King in chief by Knight's Service He was of the same kind with them who after the coming of the Normans were Honorary of Parliamentary Barons The name of Vavasor says Seld. ib. 625. was feodal only and not at all honorary In Doom's-day says he it sometimes occurs as a Synonomy with liberi homines Regis These Tenants de Rege in Capite were the persons that had Right to Sit in Parliament and in the Supreme Judicature and Councils during the times of the first Six or Seven of the Kings next after the coming of the Selden's Titles c. pag. 705. To the Magnum Concilium and Solenne Concilium King Henry the Second Omnibus qui de Rege tenebant in Capite mandari fecit c. And Mr. Selden ib. pag. 701 and 702. gives us Precedents of Causes Determin'd in this High and Supreme Judicature As that between Thomas Archbishop of York and Ulstan Bishop of Worcester touching certain possessions Anno Quarto of William the First In Concilio Coram Rege Archiepiscopo Episcopis Abbatibus Commitibus Primatibus totius Angliae and it hath already been shewn who are understood by Primates And ib. pag. 703. There was a Decree made touching the Primacy of Canterbury Totius Regni assensu says Eadmerus which says Selden expresses a full Parliament suppos'd to be in the Fifth year of the said William the First at Pinneden in Kent Now for the mighty number of which this great Assembly did ever consist Mr. Petit in his Book wherein he asserts the Right of the Commons pag. 100. cites a passage out of Matth. Paris pag. 255. who says that in the year 1215. Decimo Sexto Iohannis Regis there met Tota Angliae Nobilitas in Unum collecta quae sub Numero non cadebat and yet 't is called Nobilitas And Cambden in his Britannia pag. 137. speaking of their number says Ipsaque Baronum multitudo persuadet tales fuisse Dominos qui jus in suâ ditione dicere possent All Lords of Mannors that had their Courts Baron which from thence had also their name of Courts Baron Sir Hen. Spelman in his Glossary says of these Barons That they were Ingens Multitudo quae plus minus were Thirty thousand nullo tecto Convocari poterat Therefore they met in great Camps and Fields And Sir Hen. Spelman says He can hardly believe Quod nonnulli perhibent quod Omnes Barones locum aliquando in summis illis Comitiis obtinuisse because of their vast number By all this that hath been said and so fully proved I suppose it clearly appears that those that made up the Assembly for the Legislature and Supreme Judicature came thither by a feodal Right unless the Burgesses only and some Ecclesiastical Persons and some great Officers Here is not in all these Precedents Records or Testimonies of approved Authors and Antiquaries the least mention of any distinction among them like that of Lords and Commons or Upper and Lower House or that they were divided in their place of Sitting or Meeting for as is before observ'd their number was so vast that nullo tecto convocari poterant No one House could hold them In the case of Godsol and Sir Christop Heydon 12. Iac. in Serjeant Rolls 1. Rep. Fol. 18. It was affirmed by Sir Edward Coke that in Ancient Times all the Parliament sate together and that he had seen a Record of it in the Thirtieth year of Henry the First But William Pryn according to his accustomed humour contradicts Sir Edward Coke in this in his Preface to Sir Cotton's Abridgment of the Records of the Tower It may be concluded that they all had a Right to come to the great Convention for had they all been called by special Writs as the Lords now are the King would never have call'd so great a number which do but hinder business There is not the least mention of special Writs and it would have been an infinite Work to issue out so many Writs Printing not being then invented Therefore no doubt but they came thither by a general Summons There is not the least intimation of any distinction in their Power but every one had a like share in the Power both in the Legislature and Judicature None came amongst them by a meer Title of Honour and Dignity but in Right of their Possesions and Tenures This was not indeed the Representative of the Nation but as I said before the Principals and in effect the whole Body of the Nation which is much greater But at last this great Body fell with its own weight for says Sir Hen. Spelman Cùm sua tandem laborarent multitudine Conventúsque sic magis premerent quà m Regni Negotia Expedirent they did rather hinder than help Consultius visum est ut neglectis Minoribus praecipui tantùm per breve Regis evocarentur It was with this Constitution of the great Assembly of the Freeholders of the Nation as it happen'd with the City of Rome when it had attain'd to its Acma and full growth Mole ruebat suâ And Learned Cambden tells us in what time a division of this great Body was effected Henricus Tertius says he in his Britannia pag. 137. Ex tantâ Multitudine speaking of the Parliament in those times quae seditiosa turbulenta fuit Optimos quosque
way upon the opening of them how properly truly and naturally these Observations result and are made out some by one Precedent and Author and some by another which otherwise by an hasty reading might possibly escape the being observ'd It will not be altogether impertinent by the way to take notice of the temper and usage amongst the Ancient Britons before the coming of the Romans testified by our most credible Authors which seem to have a countenance this way viz. of translating all publick Affairs by the body of the Freeholders And that it may appear that this humour of the Nation was as we use to say bred in the bone Although they seldom or never had any National Assemblies as before hath been observ'd unless upon some great and extraordinary sudden occasion like that of chusing Cassibilan for their General upon the Invasion by the Romans or the like which was but temporary Tacitus the Roman Annalist says of the Ancient Britons De Minoribus rebus Principes consultant De Majoribus Omnes Ita tamèn ut ed quóque quorum penes plebem arbitrium est apud Principes praetractentur Note Principes here signifies not Princes or Monarchs but the great or chief men as will appear by what follows The Plebs or common sort were not excluded whenever they did consult or transact any publick Affairs Ziphilinus out of Dio Cassius speaking of the Britons Apud hos says he Populus magnâ ex parte Principatum tenet This is not meant of the power of Government as if they were a Republick or had any thing of a Democracy for Caesar in his Commentaries tells us that the Old and Primitive Government amongst the Britons as to the Title and outward Form of the Administration was Monarchial and Regal Olim Regibus parebant says he But it must therefore be understood that the People had this Principatum in Subordination to the Kings It was not Engross'd into the hands of an Aristocracy and what can Principatus else consist of unless in Legislature and Judicature Our late Innovators would have us believe that Populus doth sometimes signify only the Lay-Lords met in these Ancient great Assemblies in distinction only from the Clergy as when our Annals or Records mention Clerus Populus as they often do it is not say they to be understood as if the Common people met but only those of the higher Rank the Lords or Nobility Therefore I have cited Tacitus who speaks of the Plebs or Plebeians who used to meet to consult of the greatest Matters De Majoribus Omnes consultant as before was observ'd Omnes comprehends the Plebeians and excludes none But under their favour Populus does most usually signify All but the highest Rank and is exclusive to them only though sometimes by way of distinction from the Prince or Clergy Thus in that old lofty Title of the Roman Republick Senatus Populùsque Romanus where the word Populus is exclusive of the Senate and distinct from it Thus Learned Vinius the Civilian in his Commentaries upon the Imperial Laws Page 12. says Plebs à Populo dissert Nam appellatione Populi Universi Cives significantur Connumeratis etiam Patriciis Senatoribus Plebis autem appellatione sine Patriciis Senatoribus caeteri cives significantur but in no Author till among these new Writers of ours does Populus signify the Lords or Patricians exclusive to the middle or common sort as they would have it To come to the times of the Saxons who next succeeded the Romans even in the time of the Heptarchy We have one Instance or Precedent in the time of Ina King of the West-Saxons which was the most Powerful of all the Seven and at last swallowed up all the rest Lambert in his Book De Priscis Anglorum legibus Fol. 1 mo beginning with King Ina Anno 712. says He made his Laws suasu Instituto Episcoporum suorum Omnium Senatorum suorum Et Natu Majorum Sapientum Populi sui in Magna servorum Dei frequentia Brampton the Historian as Mr. Selden cites him renders it Multáque Congregatione servorum Dei and Lambert again Fol. 62. says King Edgar Anno 959. who was one of the English Monarchs after the time of the Heptarchy gave his Title to his Laws thus viz. Leges quas Rex Edgarus frequenti Senatu Sancivit and afterwards Fol. 148. in a remembrance and recital of some of King Ina's Laws it is said Hoc factum fuit per Commune Concilium assensum Omnium Episcoporum Principum Procerum Comitum no word of Baronum for they were not in being till afterwards in the time of the Normans But the title of King Ina's Laws goes on and says further Et Omnium Sapientum Seniorium Populorum totius Regni that is in English The Common-Council of the whole Nation was made up of all these and but One Body In the time of King Etheluph King of West-Sex there was a great Assembly or Parliament says Mr. Selden held at Winchester Anno 855. now above 800 years since Where were present the Archbishop but one Bishops and Ducum Comitum Procerúmque totius terrae aliorúmque fidelium Infinita Multitudo for which he cites Ingulphus This was at that time the Supreme Judicature and the last Resort There was a Proceeding in a Civil Cause before their Supreme Court or Witena-Gemot under King Eldred Son to King Edgar who began his Reign says Dr. Heylin Anno 978. one Leoffius had bought Land of Adelwold Bishop of Winchester and denied to pay for it And he had also dis-seis'd the Bishop of certain other Lands Edicitur placitum apud Londoniam where the Duces Principes Satrapae ex omni parte confluerant which word Satrapae extends to the middle sort as I shall show by and by The Bishop corà m cunctis suam causam patefecit he opened and pleaded his own Cause before them all Quâ rè benè ritè ac apertè ab omnibus discussa not commanding the Parties and Auditors to withdraw while it was debated by the Court Omnes reddiderunt Iudicium on the Bishop's side This Case is also mention'd by Mr. Selden in his Titles of Honour Page 633. One case more that I shall trouble the Reader with of the Saxon times shall be that of Earl Godwin in the time of Edward the Confessor Seld. ib. 634. There the King himself in his own person did Sue an Appeal of Murder against Earl Godwin for the death of Alfred The Witena-Gemote sate at London and the Cause was heard before Omnes Regni Magnates where the word Magnates comprehended also persons of the middle sort as well as those of the highest Rank as I shall clearly prove but the matter was compounded and twelve Earls bought it off with as much Money as Each of them could carry to the King in their Arms. Note this was in the time of a Saint King too viz. St. Edward I come now to the times
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
Rescripto ad Comitia Parliamentaria evocaverit Here we have plainly the Original of the House of Peers and of particular and special Rescripts or Writs of Summons to the Optimacy distinctly and by themselves Cambden quotes his Author for this but names him not Ex satis antiquo Scriptore loquor says he It was referr'd to the King to single out and select some to whom he thought fit to direct his special Writs or Summons and these and no other were to come to Parliament If this may be credited then we have the Epoche and the Date of our present Constitution and the Original of the Division of that very ancient great and numerous Assembly and it made a mighty Metamorphosis and Change The Freeholders parted with that great Power and Interest which they had both in Legislature and Judicature from the very Foundation of the Government and the Nation it self Even from the time of the Ab-origines if there were ever any such and they have been upon the losing-hand ever since as appears by what I have already observ'd in closing their Rights of Elections And thus they brake in two and became two Houses both at one time and were Twins in their Birth Here was no Primogeniture yet the one went away with a double portion upon the parting And this taking in the History is a confutation of that Opinion That the House of Commons as being by Election was in time long after the Date of the House of Peers surely they started both together Great Selden agrees in the Substance with Mr. Cambden but differs from him only in the time and some other circumstances when this Revolution happen'd And for Mr. Cambden's satis antiquus Author Mr. Selden professes he diligently sought for this Author but could never meet with him nor does Mr. Selden give any credit to that Author He supposes the distinction of Majores and Minores Barones which doubtless did arise upon this Revolution pag. 708. began not long before the great Charter of King Iohn Father to King Henry the Third and that Charter was made in the Seventeenth and last year of King Iohn This Division of Barones which all Writers agree in and which appears by King Iohn's Great Charter evidently shows that the two Houses began at the same time for Majores cannot be without the Minores But Mr. Selden supposes this was done by Act of Parliament though that Act be not now Extant Nor is there any express Memorial of it And he supposes it was not submitted to the King to chuse out whom he thought fit But that the Act of Parliament did mention them by name at first to whom particular Writs were to be directed Some part of the very words of that Charter of King Iohn's we have in Mr. Selden's Titles of Honour pag. 709. and in Sir Hen. Spelman in his Glossary pag. 83. Faciemus says that great Charter Summoneri Archiepiscopos Episcopos Abbates Comites Majores Barones Regni Sigillatim per literas nostras Et praetereà faciemus submoneri in generali per Vice-comites Omnes alios qui in capite tenent de Nobis which is a clear proof that till about this time there was no distinction And that which did Constitute a Parliamentary Baron was his Tenure de Rege in Capite so that all who held in Capite had an inherent Right to sit there And that before this time all came by a general Summons directed to the Sheriff What hath been hitherto said serves to prove That before this time of King Iohn or King Henry the 3 d his Son there was only one great Assembly of the Nation that is of the most Eminent and all the considerable and interested persons of the Nation who came not by Election save those that were chosen from the few and ancient Burroughs Nor was there then any Representative as now And that those great Assemblies were in those times the true Baronage of England and that the word Baronage did not belong only to such as the King by special Writ is pleas'd to call or summon or by Patent to confer the Title upon but as our most judicious Writers tell us the word Baronagium did extend to all Degrees and Orders for they came to all great Assemblies by Tenure till the aforesaid time of Division And there are the footsteps of this Ancient Right still amongst us in that the Freeholders whom we call Free-suitors are still the Judges of that Court which Anciently was the great and buisy Court the County Court. And those Elections that are still remaining of Trustees or Representatives in Parliament and of divers Legal Officers which must be by Freeholders only and the persons to be chosen ought to be out of the Freeholders themselves And so much of the Ancient Constitution of a Baron still remains as that in his Creation he must be entitled of some place that it may favour of the Realty and make the Honour and Title Inheritable And the Baron still continues his Freedom from Arrests as having by presumption of Law an Estate in Land which will make him liable to Justice And therefore a Distringas shall issue out against him instead of a Capias And the Law will allow of no Averment against a Peer that he hath no Lands whereby to distrain or to levy Issues upon No doubt but the Lords had from the time of this great Division ever since a very large though not an universal Jurisdiction nor have they had it from the very first Constitution of the Government as is by some pretended When this great Assembly this great and numerous Body was divided into parts no doubt but the several parts did as the Four great Captains after the Death of Alexander the Great did assume and take to themselves by Agreement several shares of the power that was then dissolv'd The Lords took a large share and the Commons for so now they began to be distinguish'd took the rest and we may reasonably suppose it was confirm'd by some Law that then pass'd and hath been since lost And the like presumption we know is made by our Courts of Law in many like cases And it is well known that the Parliament Rolls of that time are all lost And the best Rule whereby to judge what was allotted to each will be by ancient constant quiet and uninterrupted Usage and Practice Usus consuetudo est Lex Parliamenti The House of Lords did exercise a Jurisdiction in cases of Appeals for Criminal Causes till by the Act of 1 mo of Henry the 4 th c. 14. they were restrain'd That Act doth Ordain That from thenceforth no Appeals shall be pursued in Parliament the Exposition of which Statute must be made by observing the mischiefs that occasion'd the making of that Law and the constant practice after it The preamble recites That many Mischiefs did often arise by Appeals And the History of the times of King Richard the 2 d. the next preceding
King tells us what those Mischiefs were When in that disorderly troublesome Reign the Lords were so divided into Feuds and Factions that the Lords who were to be the Judges became Parties and were Appellants one against another This was the mischief Then for the practice after the making of that Act that Law was never intended according to the generality of the words to exclude all Appeals whatsoever but such only as were at the suit of private persons For the constant practice hath been ever since as well as before to admit of Appeals in Parliament when they come to the Lords by Impeachment from the Commons The Lords had and still retain the Jurisdiction over their own Members for trial of Peers in cases Capital The Lords had and still have the Jurisdiction in Writs of Error to examine Judgments given in the King's-Bench but this was under certain Rules and with some restraint for constant and quiet usage and practice do warrant all these Let us enquire into the placita Parliamentaria I mean those that are publish'd by Mr. Ryley of the times of King Edward the First King Edward the Second c. and observe what light they give us The true Title of those Pleas are Placita coram ipso domino Rege ejus Concilio ad Parliamenta sua In which Titles Regis Concilium Parliamentum seem to be distinguish'd and to signify two several things as in truth they did When and how came these Pleas to be discontinued ever since the time of Edward the 4 th When did the Law pass that restrain'd them We have not one such Plea to any effect between the time of King Edward the Fourth and the time of King Iames the First nor from thence to this day near 300 years What is come in the place of them The Placita Parliamentaria were in a strict and regular form of Pleadings The Petition of Declaration the Plea the Replication the Rejoinder and the Continuances entred upon Record in Latin and the process was by Latin Writs and all the Proceedings entred upon Record in Latin as Proceedings at the Common-Law ought to be How came this to be altered All of later times at least before the Lords are in English and the process are English Orders only Had these Placita been before the Lords how happens it that there are so few if any Reports among them of Pleadings upon Writs of Error which the Lords claim as out of all dispute to be within their Jurisdiction Hardly any of these are to be found amongst them and these had been worthy Reporting being in matters difficult weighty and full of Learning What was this Regis Concilium so constantly mention'd in these Pleas as those before whom they were held ☞ Amongst these Records and Pleas we find All the Peers themselves in a Body several times petitioning to the King and this Council and receiving Orders and Rules from that Council It is absurd to think that all the Lords in a body would petition to themselves as at the Parliament held 14 th of Edward the Ryley's Placita Parliamentaria pag. 425. Ex parte Praelatorum Comitum Baronum aliorum porrecta est petitio in hoc Parliamento in haec verba A nostre Senior le Roy a Son Counceil monstrent les Erce-evesque Praelats Counts Barons les auters grantz Seigniors dela terre Concerning payment of Escuage And the Answer to this Petition is per Concilium Regis the like ib. pag. 448. We have another Example of it in the Appendix to that Book viz. of the time of 18 Edward the Second pag. 619. wherein the Lords in a body pray liberty to approve or improve their Mannors without the King's License And the Answer to it is That it could not be done without a new Law to which the Commons would not consent It is evident in those Records and Pleas that others are mention'd to be of that Council then the Peers as pag. 266 and 331. There is an Inhibition by the Treasurer and the Concilium Regis not to deliver a Prisoner and page 386. 14 th Edward 2. the King appointed who should receive Petitions at the Parliament and who should Answer them And those that were appointed to Answer them are called Triers of Petitions These seem to be the persons that made the great Council or the King's Council as they are called in those Records These in Parliaments of late have been wholly discontinued We find this Council while they were in being sate in Places where we cannot reasonably suppose that the House of Lords ever sate as pag. 87. in Mr. Ryley's Placita Parliamentaria 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-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. 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