NOne but the King, and such as are delegated by him, can or ought to Judge in any Temporal matter.

Such as sought relief in former times in Cases of Equity were Suitors to the King himself, who being assisted with his Chancellor and Councel,Archeon 59. did mittigate the se­verity of the Law in his own Person.

Afterwards the King being willing to ease himself of that trouble;Archeon 62, & 63. by delivery of his Great Seal to his Chancellor, he delegated to him or the Keeper of the Great Seal, his own Regal and Extraordinary Preheminence of Jurisdiction, in Civil Causes; for mitigating the Rigour and supplying the defects of the Common Law, when extraordinary Circum­stances required it, but this was very sparingly made use of by the Chancellor and Keeper in former times, and men were oftentimes releived in Cases of Equity, as Brooke says,Brooke Parli­ament 33. by Act of Parliament, whereof you may find Presidents in the Parliament Rolls hereafter mentioned, viz. 5 R. 2 n. 62. 3 H. 5. n. 17. 3 H. 5. n. 44. 9 H. 5. n. 11. 37 H. 8. n. 26.

If the Chancellor Erro'd formerly his Decrees were reviewed, not before himself alone, but some of the Judges sate with him, most times in the Exchequer Chamber, as appear [...] by the Year Books and Reports following, viz. 37 H. 6. f. 13. ibidem 35, & 36. 7 E. 4. f. 15. 22 E. 4. 67. 27 H. f. 15.

But whether the Chancellor in the Cases last mentioned did take the Judges to his Assi­stance of his own accord, or by the Kings Order it appears not by the Books, but it ap­pears that of later times the Decrees of the Chancellor were Reviewed by Judges and others by Order and Commission from the King, as appears by the Authorities following, viz. 4 Instit. f. 85. where you may find,Vi. 2. Anderson fo. 163. that Sir Moyle Finch Petitioned Queen Elizabeth against a Decree in Chancery in the 42. and 43. years of her Reign, and she refer'd the matter to all the Judges of England, and upon their Opinions, being Certified into the Chancery, the Decree was Revers'd, and there the Lord Cheif Justice Cooke Cites 4 Cases more that about that time were referred out of the Chancery to some of the Judges.

There be also several Orders entred in the Register's Books of Orders in Chancery, that appeare to be made by vertue of the Kings refference from Chancery Decrees to the Judges, as follows, viz. 21. Junii 2 Jac. 1. Inter Chamberlain & Bubb, 24. No. 3 Car. 1: Inter Barker & Unwin, 12. No. 7 Car. 1. Inter Penington & Holms, 15 Car: 1. Rot. patent. 23: n. 5. indors. a Commission to Review a Decree in Chancery between Harvey and Langham in there Inrol'd.

Of late Years we find that Erronious Decrees in Chancery and other Courts of Equity were review'd by Appeals to the Lords in Parliament, and it is worth while to see how and when that Course first began.

In the Year 1621. Sir John Boucher prefer'd a Petition to the Lords Intitled thus,Lords Journal 3. of Decemb. 1621. 19 Jac. 1,

To the Right Honourable the Lords Spiritual and Temporal in Parliament Assembled.

In that Petition he complains against the Lord Keeper for an over hasty determining of his Cause, and refusing to hear his Evidence, whereby, as he alledg'd, he had not Justice done him, and the Petition concludes in these words. The Petitioner doth therefore in all Hu­mility Appeal to your Lordships, &c. Humbly desiring that your Lordships would be pleased to hear and Judge the same.

Upon Reading of which Petition it was referr'd to the Committee of Priviledges to consi­der whether it were a formal Appeal or not.

Afterwards the Lord Arch Bishop of Canterbury, Lords Journal 10. December 1621. the first of the Committe of Priviledges Reported to the House, that divers Lords of their Subcommittee appointed to search for Presidents, had made Report to them, that they could not find that the word Appeal was usual in any Petition, and that the Ancient and Accustomed form of Petitions brought to that House were, To the King and his Great Councel. However they thought sit the matter of the complaint should be heard, which was accordingly done, as to the charge against the Lord Keeper for his over hasty hearing the Cause and refusing to hear the Evidence, but as to the merits of the Cause it was not heard; although Sir John Boucher earnestly begg'd it.

In 1624. I find several Petitions of Appeals from Chancery to the Lords in Parliament,May 28. 1624. 22 Jac. 1. one whereof was a Petition of one William Mathews, against a Decree obtain'd by George Mathews, and upon hearing, their Lordships revers'd the Decree; whereupon George Ma­thews Petitioned their Lordships in nature of a Plea to their Jurisdiction, setting forth, that he was inform'd by his Councel, that it had been the course of that Honourable House to Reverse Decrees, but by Bill Legally Exhibited; and upon consideration had of that Peti­tion their Lordships waved their own reversal,May 29 1624. and directed that the Lord Keeper should become an humble Suitor to the King for a Commission to review that Decree.

And all the other Appeals in that Parliament that I could find were Refer'd back to the Chancery or to Arbitrators to endeavour to end, and none determin'd by the Lords sa I could find.

From that time to the beginning of the Wars, about 1640, and 1641, I find nothing of Appeals to the Lords in Parliament, but in those troublesome times they were again receiv'd, but how Legally is not for me to determine, but this I will say, that before their Lordships can Examine Errors in Judgments at Law, there must be the Kings leave for a Writ of Error for that purpose, and the Writs of Error are their Lordships Commissions; but I know none they have to determine Appeals from the Chancery no more then from the Prerogative Court, which they pretend not to but, have disclaim'd it.

I find that the Lords were formerly Judges in Parliament in particular Cases, by the Kings assent as appears, 4 E. 3. n. 1. and in the same Year n. 6. it was assented and Agreed by the King and all the great Men in full Parliament, that the Peers of the Realm should not be driven for the future to give Judgment on any other but their Peers, nor have power so to do for the future, and n. 16, and 17, of that Parliament Thomas of Berkley, Rnt. was tryed before the King in Parliament by a Jury of 12 Knights and ac­quirted: and 25 E. 3. n. 10. the Record of the Judgment against Sir William Thorpe was brought into Parlia­ament, as the Record says, before the King himself who took the Advice of all the Lords, but I think the Judgment was the Kings and not the Lords.

1 H. 4. n. 79. It is declared by the Arch Bishop of Canterbury, by the Kings Command, that all Judgments appeartain'd to the King and Lords unless in Statutes, &c. but I cannot find how the Lords in Parliament came to be Judges there in any Cause between Party and Party, without the King, or without his Assent, or the Assent of his Chancellor, or one whom the King puts there to Execute the Office of the Chancellor, who is the Kings Representative in the House of Lords in his absence, as appears 10 R. 2. n. 6. and by the several Ac­tions by him done by the King Authority, as Prorogueing and Dissolving the Parliament, so that the Chan­cellor or he that executes his place in the House of Lords by the Kings Commission is not barely a Speaker of the House of Lords and no more, and to be wholly Rul'd and Govern'd by the Lords, but he is Answerable to God & the King for all Judgments there given, as being intrusted to represent the King who is the supream Judge.

In Judgments heretofore in Parliament, the Advice of the Judges was followed, and the late Lord Hollis, the Champion for the Jurisdiction of the Lords in matters of Appeals,Hollis's Case stated, f. 22: to justifie the reasonableness of that Jurisdiction says, That the great Officers of the Kingdome are part of that Body, who in all reason, says he, should be knowing Men; the Chancellor of England is always their Speaker, who is commonly a person skilled in the Law, and says he further, they have all the Judges of the Land to be their Assistants, with whom they Advise, and by whose Advice they are guided in difficult points, and I think all points in Law are dif­ficult to Men not skill'd in the Law, and there he Cites Flourdew's Case, 1. H. 7. where the proceedings upon Writs of Error in the House of Lords are shewed,Jenkins Lex Terre, f. 55. and there it is said, Sen [...]scallus cum dominibus Spiritualibus & temporalibus per concilum Justiciariorum procedent ad Errorem Corrigendum.

The King is sworn to Judge justly, and so is the Chancellor oblig'd to take the Oath of a Chancellor tho' he be a Peer, and though the Lords upon Tryal of a Peer give their verdict upon honour, yet I do not think that any Reason why if they are made Judges in other Cases, they should not take the Oath of a Judge.

The King Judges by his sworn Judges who are his Council in matters of Law, and they are call'd to the House of Lords not at their Lordships pleasure,Cook. 1. Inst. f. 110. but they are call'd thither by the King's Writ which tells us to what end they come there in these words, Quod intersitis nobiscum & cum caeteris de Concilio nostro super pre­missis tractaturi, vestrum (que) Concilium Impensuri.

Amongst the Petitions of the Commons in Parliament 1 R. 2. n. 87. it was prayed that no Suit between party and party be determined before any Lords or others of the Councel, but before the Justices only which was granted by the King.

I think this was an Act of Parliament according to the manner of Enacting in those times, and that the Lords in Parliament are the Kings Councel, and are often call'd his Great Councel.

The Judges in a course of meer Law are oblig'd to judge according to Law, and in a Course of Equity according to Equity; but in both Cases the matter of fact whereupon both Law and Equity doth arise ought by the Law of the Land to be tryed by Jury of 12 Men, unless in some few Cases, yet the Courts of Equity have determin'd matter of fact without Jury, which is very inconvenient.

It is obiected by those that would not have the Judges Opinions regarded at all in Judgments in the House of Lords, that they may be corrupted, which I admit; but if any such thing appear, such Judges may be dis­p [...]ac'd and honest Men put in their places, as sometimes Parliaments are factious, but that doth not justifie the King to make Acts without a Parliament, yet he may. Dissolv a Factious Parliament and call another by whose consent he may make Acts, and so corrupt Judges being displac'd, the King and Lords may be advis'd by ho­nest ones.

It may therefore be worthy consideration whither it be secumdum Legem & Consuetudinem Parlamenti for the Lords to Reject the Opinion of the Judges (as of late hath been done) both in matters of Law upon Writs of error, and in matters of Equity upon Appeals; in which last, such Regard ought to be had to the Law as not quite to overthrow it, though by reason of some Circumstances in some cases the Rigour of the Law may be moderated, and some small deffects of the letter of the Law supplyd by Equity in Cases with­in the meaning thereof, and therefore he can never be a good Judge of Equity that is not well Skill'd in the Law: and if it were otherwise, since Equity overrules the Law, we had better take Advice of Honest Gentlemen tha [...] spent all their Lives in Hunting and Hawking and other pleasure, and never Convers'd with, nor understood the Gibbrish of Law Terms, nor the noise of Westminster Hall, then to give any Eminent and well read Lawyer 5: or 10: or 20: Guinneys for his Advice; for the Judgment of the first sort is most naturall and therefore most like to suite with the Judgment of the Lords if they neglect the Advice of the Judges. And to perpetuate Affliction, such Judgment must now be the last resort according to some Opini­ous, for so they would have the Judgment of the Lords, though the King nor his Representative be no party nor consenting thereto, and that if they Err it is not to be rectified by themselves nor by Act of Parliament, though our Law Books say, that Parliaments may Err and do err oftentimes, and their Errors may be recti­fied in another Parliament, or another Session, as appears Bro. Error 68 Crompton f. 12. L. Hollis's Case stated, f. 65.

The whole Parliament of the 21 of R. 2: and the Authority thereby given was repealed for this principal Reason amongst others, because there was a Clause therein, that no person should attempt to revoak any Or­dinance then made,Cooks 4. Instit. f. 44. which restraint, says the Lo d Cheif Justice Cooke, was against the Jurisdiction and power of Parliament, the Liberty of the Subiect, and unreasonable: What then will be the Consequence? If a Judgement in the House of the Lords is so perpetually finall, be it ever so Eroneous, that it cannot be recti­fied by themselves nor by Act of Parliament. And pray what becomes of the Kings supremacy, if the last resort of all be in the Lords alone without the King.

I may boldly say there is nothing so great a grievance as the Male Administration of Justice, and therefore nothing more becoming the Commons of England in Parliament Assembled (who are the grand Inquest of the Nation) then to endeavour to preserve to the People the due course of Administration of Justice, and to en­deavour to restrain all Usurpation upon our Laws and Liberties by whomsoever it be, by their open decla­ring and voting against it, and Addressing to the King, our Supream Head and Governour, for a Regulation, and in particular, to desire His Majesty to grant Commissions to the Judges and some others of Ability and In­tegrity to Review Decrees in Courts of Equity as formerly was the practice, and as now is used, to Review Decrees in the Prerogative Courts; and to desire the Lords in Judgements in their House to takeand have due Regard to the Opinion of the sworn Judges, and that if at any time any thing should happen to be unreasona­bly done or advis'd by them, through oversight, misinformation or otherwise, or if a Case should happen a­gainst Reason for which no Releif may be had by the oridinary Course of Law of Equity, the same may be helpt by the whole Parliament consisting of King, Lords and Commons, in whom the Legislative Power Resides, and who, all together, are Superiour to the Lords alone in their Judicial Capacity, and may supply their Defici­ency, as was lately done in the Case of Roberts against Bodvil and Winn, the said Roberts having been in Chan­cery a great while, endeavouring to set aside a Will, and from thence Appealed to the Lords but could not effect it but By Act of Parliament, which may be seen in the Parliament Rolls, 18 Car. 2. n. 9.