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THE APPELLATE 
 JURISDICTION OF THE 
 HOUSE OF LORDS AND OF 
 THE FULL PARLIAMENT 
 
 BY J. W. GORDON 
 
 LONDON 
 JOHN MURRAY, ALBEMARLE STREET, W. 
 
 1905 
 
 Price 216 Net 
 
THE APPELLATE JURIS- 
 DICTION OF THE HOUSE 
 OF LORDS AND OF THE 
 FULL PARLIAMENT 
 
 BY J. W. GORDON 
 
 OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW 
 
 " In the Lords' proceedings in judicature is 
 observed also a certain form, which varieth 
 according to the nature of the complaint and the 
 matter complained of, so that no general rules 
 can be given therein, though many judgments 
 have been reversed for errors, whereof there be 
 many precedents." — ^JOHN Selden, Judicature 
 in Parliament. 
 
 LONDON 
 JOHN MURRAY, ALBEMARLE STREET, W. 
 
 190S 
 
PRINTED BY 
 HAZELL, WATSON AND VINEY, LD , 
 LONDON AND AYLESBURY. 
 
PREFATORY 
 
 The decision of the House of Lords in the case of the 
 General Assembly of the Free Church of Scotland v. 
 Overtoun,^ . and the practical difficulties and wide- 
 spread dissatisfaction to which that decision has given 
 rise, have made an appeal to the full Parliament 
 necessary. Thejiecessity has, indeed, been recognised 
 by the Government, and a Royal Commission has just 
 produced a report upOn which, doubtless, Parhament 
 will be asked to frame a remedy. 
 
 A question thus arises of great interest, and of the 
 very greatest consequence, touching the nature of this 
 remedy. Is it to be considered under the form of an 
 appeal from the House of Lords to the full Parliament, 
 and to be framed as a judgment on the merits awarded 
 by Parliament sitting as the final appellate tribunal 
 of this realm ; or is it to be in the nature of ex post 
 facto legislation by the supreme legislature ? 
 
 It is clear that these two courses are in strong 
 contrast with one another, and that the adoption of 
 the one or the other course must affect not only the 
 procedure to be pursued, but also, and to a very 
 material extent, the line to be followed in discussion 
 and the substance of the remedy to be applied. If 
 the whole merits of the controversy are still open to 
 
 ' (1904) Appeal Cases, p. 515. 
 
iv PREFATORY 
 
 consideration, and if the decision itself at which the 
 House of Lords has arrived is Hable to be canvassed in 
 a fuller session of Parliament, then there need be no 
 difficulty about applying whatever remedy the law of the 
 land or of Parliament affords for the relief of any such 
 grievance as the appellant party may be able to show. 
 In that case a full discussion of the case in all its bearings 
 — the facts proved and provable, the law of the land, 
 and the larger law of " reason and good conscience " 
 in its bearing on those facts— these matters will all 
 demand consideration ; and legislation, if it be required 
 at all, can only properly be framed when it is fully 
 known what relief the judicial power of Parliament 
 suffices to afford. If, on the other hand, the resources 
 of the judicature are exhausted by the vote of the 
 House of Lords ; if the only question now to be con- 
 sidered is the expropriation — if a case for expropriation 
 can be shown — of the undoubted property of the 
 plaintiffs ; in whose favour the House of Lords decided ; 
 then, no doubt, the Parliament must cut the intractable 
 knot with such rude weapons as it has available for the 
 purpose, and look to the politicians to solve a riddle 
 that will have passed the lawyers' wit. 
 
 It cannot be doubted that an impression prevails, 
 and is very widely diffused, that the last word has been 
 uttered in the way of the legal discussion and judicial 
 determination of this controversy. The motto quoted 
 from John Selden as a text for this paper that 
 " many judgments " of the Lords' " have been 
 reversed for errors," has probably struck most 
 readers as a strange, if not indeed as an overbold, 
 statement. It is a large part of my purpose in this 
 present collection of precedents to show that it is 
 
PREFATORY v 
 
 a very simple and accurate statement of unquestion- 
 able fact. The materials for this purpose are collected 
 in the chapters numbered II., III., and IV., to which the 
 reader who wishes to get at once to the pith of the paper 
 is referred. For the convenience of such as may 
 desire to study it with the assistance of a discussion 
 of some of the obscurer matters which have to be con- 
 sidered in the perusal of these ancient authorities, an 
 introductory chapter is supplied. The authorities 
 themselves fall into four classes, and are divided 
 accordingly among as many chapters. 
 Thus we have : — 
 
 1. The direct and explicit opinions on this point 
 uttered upon various serious occasions by judges and 
 other authors of weight. 
 
 2. Declarations and documents having the authority 
 of Parliament concerning the judicial power of 
 Parliament. 
 
 3. Particular precedents in which judgments rendered 
 in Parliament have been reversed by judicial Acts of 
 Parliament. 
 
 4. Precedents in a more general sense, being examples 
 of judicial authority, not necessarily appellate and not 
 necessarily in conjunction with the House of Lords, 
 in the exercise of which the Commons House of 
 Parliament takes part. 
 
CONTENTS 
 
 PAGE 
 
 INTRODUCTORY i 
 
 CHAPTER I 
 
 OPINIONS EXPRESSED BY JUDGES AND WRITERS OF 
 
 AUTHORITY 1 6 
 
 CHAPTER II 
 
 DECLARATIONS AND DOCUMENTS HAVING THE AUTHORITY 
 OF PARLIAMENT, CONCERNING THE JUDICIAL POWER 
 OF PARLIAMENT 25 
 
 CHAPTER III 
 
 PARTICULAR PRECEDENTS .... • ■ 35 
 
 CHAPTER IV 
 
 PRECEDENTS IN A GENERAL SENSE 42 
 
The Appellate Jurisdiction of the 
 House of Lords and of the Full 
 Parliament 
 
 INTRODUCTORY 
 
 It is very strange that the judicial character of the 
 High Court of Parliament in full session should have 
 become so obscured as it has in recent times, and it is 
 doubly strange that the exercise of judicial functions by 
 the House of Commons should have in a special sense 
 passed out of observation. Certain judicial functions 
 the House does indeed perform to everybody's know- 
 ledge, as, for example, when it investigates and 
 punishes a breach of privilege, or when it considers 
 and passes a divorce bill. But matters of that sort 
 are either of such infrequent occurrence or of such 
 small public interest that it is no wise surprising that 
 they make but little impression on the public mind, 
 and scarcely colour the prevailing conception of the 
 functions of the House. What is surprising is that 
 occasions for the exercise of its judicial functions by 
 the House of Commons are so rare. "The House of 
 Commons is the grand inquest of the nation," said Sir 
 Robert Atkyns, when arguing the case of the Speaker 
 Williams in the King's Bench,^ adopting an aphorism 
 current long before his time, which certainly is no 
 less true at the present day than it was in 1684. The 
 right to bring any grievance, great or small, public or 
 private, to the knowledge of the members of that 
 
 ' Atkyns, Power of Parliament, p. 40 ; 13 St. Tr. 1415. 
 
 I 
 
2 INTRODUCTORY 
 
 House is secured to every individual within the realm 
 by the Act against Tumultuous AssembHes,^ and that 
 right assuredly has never been suffered to lapse by 
 disuse. Yet the fact remains that few people recognise 
 that the House of Commons has any strictly judicial 
 functions at all, and still fewer that the full Parliament 
 is the highest Court of Justice and the ultimate Court 
 of Appeal within this realm. 
 
 The explanation of this anomaly is without doubt to 
 be sought in the easy working and great success of 
 our subordinate judicial machinery. The widely 
 extended operations of our courts of law and equity 
 leave comparatively few wrongs unredressed, and give 
 rise to few serious complaints of miscarriage of justice. 
 The labours of the Court of Appeal reduce to a 
 minimum the occasions for recourse to the House of 
 Lords, and until the outburst of feeling occasioned 
 by the decision in the Free Church case, there has 
 been in recent years no tendency on the part of the 
 great public to criticise or cavil at the exercise of 
 the Lords' jurisdiction. Miscarriages there have of 
 course been, discussions there have been, and every 
 now and then a keen and sometimes an indignant 
 interest in the proceedings of some court of law. 
 But no insufferable wrong has hitherto, within 
 living memory, called for the exercise of the highest 
 judicial authority, and thus the success of the lesser 
 tribunals has actually so obscured the very existence 
 of the greatest that it has become obsolescent. 
 
 That explanation, simple as it is, serves from the 
 historical point of view to increase the wonder ; for it 
 cannot be doubted that the success of our judicature 
 in modern times is bound up with the full develop- 
 ment of that very complex system of law which is 
 known as Equity — the rule of reason and good con- 
 science. Now equity, as contrasted with the common 
 law which is the law of the realm, is the law of 
 Parliament, and historically its introduction can be 
 1 13 Chas. II. St. I. ch. 5, s. 3. 
 
ORIGIN OF EQUITY 3 
 
 traced to the exercise by Parliament, and particularly 
 by the House of Commons, of those judicial functions 
 which of late have fallen into such remarkable 
 abeyance. 
 
 To take an instance at random among scores 
 that could be cited. Lord Clynton had accompanied 
 Richard II. in his expedition to Ireland in 1394, and 
 before starting had enfeoffed his friend and legal 
 adviser, William de la Pole, and certain other friends, 
 of his lands in trust for himself and his heirs. Lord 
 Clynton returned, in safety, to find that all his trustees 
 except William had died during his absence. From 
 William accordingly he demanded his property. But 
 William de la Pole refused to re-convey, and held back 
 the land in breach of his trust. The judges were 
 powerless, for the legal title was undoubtedly in 
 William, and the Chancellor was not at that date 
 vested with the large equitable jurisdiction which he 
 came subsequently to exercise. Thus the claimant 
 was by common law without remedy. He therefore 
 invoked the law of Parliament. He showed his 
 grievance by a petition to the House of Commons. 
 The Commons took his quarrel up, as was their 
 wont in those days to take up the quarrel of any 
 man who seemed to be suffering an irremediable 
 wrong. The plain dictate of reason and good con- 
 science was that William de la Pole should be 
 ordered to re-convey in performance of his trust, and 
 the Commons accordingly endorsed their petitioner's 
 request that the King should pronounce a decree in 
 Parliament and by the authority of Parliament in 
 that sense. The decree was made, and so effectively 
 that before the dissolution William appeared at the 
 Parliament and delivered to the Chancellor the deeds 
 of re-conveyance.^ 
 
 Take another illustration. In the year 1439 Sir 
 Thomas Malefant died in London, his wife, the Dame 
 Margaret, being at the time resident at his country 
 ' Rolls of Parliament, vol. 4, p. 151. 
 
4 INTRODUCTORY 
 
 place in Pembrokeshire. A scoundrel gentleman, 
 named Lewis Gethei, was his particular friend. 
 Having early notice of Malefant's death, Gethei 
 posted off to Pembrokeshire, and, forging a letter 
 from the deceased knight, he carried it to the widow, 
 and on her proposing to go to her husband he offered 
 to escort her to London. The poor lady, distracted 
 with fears, not only for her husband but also for 
 herself — the knavish gentleman having warned her 
 that her neighbours had conspired to seize her person 
 — collected a bodyguard of her servants, and thank- 
 fully accepted her deceiver for a guide. As they 
 passed near the Welsh border an ambush of the 
 gentleman's hired ruffians fell upon them, beat off the 
 servants, and led the lady captive into the gentleman's 
 own country. There a caitiff priest officiated at a 
 forced marriage, and the lady only escaped from her 
 captor when she had become in the full sense his wife. 
 The judges again were helpless. The marriage, 
 though fraudulent and violent, was a bar to any 
 proceeding by the injured woman at common law. 
 But the law of Parliament, the rule of reason and 
 good conscience, could be invoked. The victim lady 
 petitioned the Commons, the Commons in Parliament 
 petitioned the King in Parliament, and an Act of 
 attainder put the gentleman out of the King's peace 
 and made him a felon and an outlaw, amenable 
 to capital punishment when caught ; while to the 
 lady it gave a right to proceed at law by a writ 
 of rape.' 
 
 Four hundred years later, in 1827, the Parliament of 
 George IV. passed a judicial Act to deal with a case 
 in all its essential facts the same as the foregoing. By 
 that Act the fraudulent and enforced marriage of Miss 
 Turner with Edward Gibbon Wakefield was annulled, 
 the Parliament confessedly acting in a judicial capacity 
 to give relief upon general principles of equity to a 
 plaintiff who could have no adequate remedy by the 
 ' Rolls of Parliament, vol. 5, p. 14. 
 
ORIGIN OF EQUITY 5 
 
 law of the land.^ This case brings the exercise of this 
 general judicial power by the House of Commons a 
 long way down towards our own times. It would be 
 difficult to suggest any occurrence since 1827 sufficient 
 to take away from Parliament this ancient jurisdiction, 
 which was then in full activity. 
 
 But what has in fact relieved the House of the 
 burden of this jurisdiction has been the growth of 
 public business, and the development of the machinery 
 of Government both in Parliament and outside. So 
 early as the time»of Edward III. it was found necessary 
 to delegate the exercise of judicial functions from the 
 King in his Great Council of Parliament to the King 
 in his Privy Council, and at a later date to a Committee 
 of the Privy Council sitting without the King. Thus 
 in the Roll of the Parliament of the twenty-first year of 
 Richard II. we find an entry that at the close of the 
 Parliament of 1397 an act was passed appointing a 
 Select Committee of Lords and Commoners to hear and 
 determine petitions and other matters presented to 
 ParHament, but left over for lack of time ^ ; and later, in 
 the time of Henry VI., such remissions became quite a 
 regular course.' This delegation was facilitated doubt- 
 less by the organisation of the Council Board as a 
 regular Court of Justice in the year 1423, with a quorum 
 of six Councillors — or four if unanimous — and a set of 
 rules for regulating their proceedings.* This Board 
 was to give relief according to the law of Parliament, 
 unfettered by the strictness and limitations of the 
 common law. Thus we have the system of equity 
 overflowing from Parliament, its original source, into 
 
 ' See the speech of Sir Robert Peel when introducing the Bill into 
 the House of Commons, 17 Hansard, p. 1133. The Act itself is 
 printed in a footnote on p. 21 of Lewin's Northern Circuit Crown 
 Reports, vol. 2. 
 
 ' Rolls of Parliament, 21 Ric. II. No. 74, vol. 3, p. 368. 
 
 ^ Vide e^. Rolls of Parliament, i Hen. VI. 21, vol. 4, p. 174 ; 4 
 Hen. VI. 21, vol. 4, p. 301 ; 6 Hen. VI. 45, vol. 4, p. 334 ; 15 Hen. VI. 
 33. vol. 4, p. 506. 
 
 ^ See Rolls of Parliament, i Hen. VI. No. 17, vol. 4, p. 201. 
 
6 INTRODUCTORY 
 
 this new channel. Later on, when under our Tudor 
 and Stuart monarchs the sessions of ParUament 
 became infrequent and preoccupied with pubhc affairs, 
 this equitable jurisdiction was quite naturally monopo- 
 lised by the Council ; and equally naturally, when the 
 Chancellor, in the person of Wolsey, became by far 
 the greatest member of the Council, he took the 
 exercise of this jurisdiction into his own hands. So it 
 happened that when the jurisdiction of the Council was 
 abolished by the Act for the suppression of the Star 
 Chamber, the equitable jurisdiction itself survived, not- 
 withstanding, in the Chancellor's Court, and, developed 
 subsequently by Nottingham, Cowper, Hardwicke, and 
 Eldon, all great common lawyers, has grown into the 
 system that we know to-day, and with which to-day 
 the common law itself is interfused. But in early times, 
 when the records of ParHament first enable us to 
 understand fully the course of proceedings in Par- 
 liament, we find appeals from the King's Bench and 
 other courts subordinate to Parliament, as also appeals 
 from erroneous judgments given in Parliament itself, 
 brought before the King in Parliament, and dealt with 
 in all respects as ordinary business of that High Court.^ 
 It is then not a little strange that the great tribunal 
 which is the natural home of this system of equity 
 should have ceased to administer it in the capacity of a 
 court of first instance, and even in a very real sense 
 should have ceased to administer it at all. For the 
 House of Lords, constituted for the hearing of appeals, 
 is no longer Parliament in anything but the name. 
 Not only does it consist exclusively of lawyers ; those 
 lawyers are themselves animated by the strictest pro- 
 fessional feeling, and consider themselves as narrowly 
 
 ' See the Parliament Rolls passim from Edward I. to Edward IV., 
 and for example, Strode's appeal from the Stannary Court, 4 Hen. VIII., 
 c. 8, s. I ; Chamberlayn's appeal from the King's Bench, 32 Hen. VI. 
 S R.Par. p. 449 ; and another, 6 Hen. IV. No. 61, 3 R.Par. p. 558; 
 Atwood's appeal from Judicial Commissioners, 4 Hen. IV. No. 4, 
 3 R.Par. p. 513. 
 
THE JUDICIAL HOUSE OF LORDS 7 
 
 bound by the technicalities of the law as if they were 
 judges of the King's Bench. The old breadth of view, 
 which asserted that Parliament is not bound by the 
 law and practice regulating inferior courts/ but is free 
 to apply, without regard to any technicalities, the rule 
 of reason and good conscience, has, for better or worse, 
 disappeared wholly from our modern judicial system. 
 To restore it involves a reconstitution of the Judicial 
 Court of Parliament itself on lines no longer familiar — a 
 recurrence perhaps to the old arrangement under which 
 all the Peers, and the Commons also, took a share in the 
 decision. For the unfettered discretion of the simple 
 rule of equity could not safely be trusted to a small body 
 of administrators, however distinguished. In matters 
 of legislation the rule of conscience still holds. New 
 laws are made because they are believed to embody the 
 rule of reason and pure equity, but upon them all sorts 
 and conditions of members of the legislature vote. In 
 the multitude of councillors who concur in the passing 
 of an Act of Parliament there is safety. Were an 
 equal discretion entrusted to a quorum of three this 
 country would no longer be the home of free men. 
 For the exercise of a supreme equitable jurisdiction the 
 full Parliament is the only imaginable Court. The 
 inconvenience of placing the final appeal in the hands 
 of an insufficient tribunal was forcibly stated by Lord 
 Brougham at a time when the House of Lords for the 
 purpose of appeal might be duly constituted in the 
 single person of the Lord Chancellor or of his deputy. 
 The case which then called for a reform in the pro- 
 cedure of the House was by chance a Scottish appeal, 
 and Lord Brougham pointed the moral by observing 
 that the question of law was " taken from those persons 
 who understood the Scotch law and was to be adjudi- 
 cated by a single individual, who perhaps was as 
 ignorant of the law of Scotland as of the law of Japan." ^ 
 Lord Brougham's dictum would have to be paraphrased 
 
 ' See below, p. 39. 
 
 ' 25 Hans. 3rd ser. 1257. 
 
8 INTRODUCTORY 
 
 to-day by saying that the decision of matters which can 
 only be really settled by the unformulated law of 
 reason and good conscience is by the supineness of 
 the supreme tribunal left in these modern times to the 
 decision of a small board of professional lawyers, so 
 confessedly inadequate to this larger task that they 
 hold themselves bound as strictly as any court of 
 subordinate jurisdiction by the foripulas which have 
 once received sufficient judicial sanction. The free 
 Parliamentary law of reason and good conscience is as 
 much beyond their contemplation as it is beyond their 
 corporate competence. 
 
 Still, the wonder that this jurisdiction should have 
 passed so completely into abeyance as it has does not 
 grow less as we discuss it. And perhaps it is not 
 necessary to probe it to the bottom. The power of 
 Parliament has certainly suffered no curtailment in 
 recent times, and therefore it follows, if I mistake not, 
 from a consideration of the precedents collected in the 
 third chapter,^ that there is a constitutional power in the 
 Parliament to hear an appeal from the actual judgment 
 of the House of Lords, and to re-try the whole matter 
 in controversy. The aid of the judges and of other 
 lawyers may be invoked upon any points of law in- 
 volved, but at the same time with perfect liberty to 
 brush aside any technical legal difficulties that may 
 hamper the free exercise of the rule of reason and 
 good conscience. In view of that practical conclusion, 
 it does not seem very important to ascertain why this 
 great jurisdiction has of late been so little exercised 
 and so very nearly forgotten. At least, matters of 
 greater importance invite attention. 
 
 For although it be admitted that the jurisdiction was 
 once in active exercise, and therefore must still subsist 
 in some form, the thought naturally suggests itself. Is 
 not the House of Lords, even mutilated as it has been 
 in recent times, the true heir of the early Parliament 
 and as a matter of pure history the rightful depositary 
 ^ Below, p. 35. 
 
THE HIGH COURT OF PARLIAMENT 9 
 
 of the ultimate appellate jurisdiction ? The question 
 was indeed much discussed at the Restoration, when 
 under Charles II. the House of Lords resumed its 
 suspended functions, and from the writings of Prynne 
 and others we learn that there is something to be said 
 for this contention. The protest of the Commons, 
 presented to Henry IV. in 1399, is the principal 
 authority cited for this view and the form — agreeing 
 with that protest — in which most of the judgments in 
 Parliament were anciently drawn up. The Commons 
 say that " judgments of Parliament appertain solely to 
 the King and to the Lords, and not to the Commons, 
 except by the King's especial grace ; " ^ and, agreeably 
 with this view, we find judgments in Parliament and 
 other statutes very commonly running in this form : 
 " By the advice and assent of the Lords Spiritual and 
 Temporal and at the request of the Commons." 
 
 In discussing the significance of these symbols it is 
 important to bear in mind that the capacity of a 
 petitioner is in no wise inconsistent with that of an as- 
 senting party. Thus, for example, in an ordinary suit 
 the plaintiff asks for specific relief, the nature and extent 
 of which he suggests by his pleading. That suggestion 
 of his limits the jurisdiction of the Court. If he puts 
 his damages at ;£'ioo, and the Court awards him ;£'200, 
 the judgment is bad, or would be bad were it not for 
 an accommodating rule which allows him to amend 
 his claim.^ By amending he assents, and by his assent 
 he, although a mere petitioner, establishes the judgment 
 of the Court. 
 
 Now, applying this principle to the case under con- 
 sideration, we see that the position of petitioner did 
 not at all necessarily shut out the Commons from being 
 assenting parties, and necessary assenting parties, to a 
 judgment in Parliament. And a closer examination of 
 the records shows that this was their true position. 
 
 In the first place, it is noteworthy that their petitions 
 
 ' Below, p. 30. 
 
 ' Knowlman v. Bluett, L.R. 9 Ex. i. 
 
lo INTRODUCTORY 
 
 always specify with exact precision the rehef asked. 
 For example, take the following from the petition of 
 the Commons for the restitution of John Lumley :— 
 
 "May it please the King our Sovereign Lord of 
 your very abundant grace in this present Parliament 
 ... to grant to your liege John de Lumley, knight, 
 that he may be restored to the name and ability of 
 son and heir of Rauf de Lumley . . . the rebellion and 
 forfeiture of the said Rauf . . . and the judgment given 
 against him notwithstanding. And that," etc. (Here 
 follows a judgment of restitution at full length). 
 
 This petition was granted in the following form :— 
 
 To which petition when read and understood an 
 answer was made in the following form : " The King 
 with the advice and assent of the Lords Spiritual and 
 Temporal and at the request of the Commons in 
 Parliament has granted this petition in all points 
 according to what is therein contained." ^ 
 
 Here, then, there can be no question that the 
 Commons were assenting thereunto. The petition 
 embodied their assent quite as fully as the votes of 
 the Lords embodied theirs. Indeed, the assent of the 
 Commons was actually more influential than that of 
 the Lords, for the Commons by their petition defined 
 the relief to which they assented, while the Lords 
 assented only to what they had no power or oppor- 
 tunity to mould into shape. It would, then, be a great 
 mistake to argue that because the Commons acted, not 
 as judges, but as petitioners, therefore they played 
 an inconsiderable or unnecessary part in the exercise 
 by Parliament of its judicial functions. So far as this 
 illustration goes, it tends to show that on the contrary 
 theirs was the most practically important part of all, 
 for they shaped the judgment to which the King, 
 counselled by the Lords, gave his imprimatur. 
 
 And that this was at that time the constitutional 
 theory is shown by the most authentic documents. 
 ' Rolls of Parliament, 13 Hen. IV. No. ig, vol. 3, p. 655. 
 
THE COMMONS' PROTEST OF 1399 n 
 
 Thus in the Parliament Roll of Henry V. we have the 
 following entry : — 
 
 Be it remembered that the Commons delivered to 
 the King our very Sovereign Lord in this present 
 Parliament a petition of which the following is, word 
 for word, the tenour : 
 
 "Our Sovereign Lord, Your humble and true lieges 
 that be come for the Commons of your land beseechmg 
 on your right righteousness : that so as it hath ever been 
 their liberty and freedom that there should no statute 
 or law be made unless they gave thereto their assent : 
 Considering that the Commons of your land the which 
 that is and ever hath been a member of your Parlia- 
 ment be as well assenters as petitioners that from this 
 time forward by complaint of the Commons of any 
 mischief asking remedy by mouth of their Speaker for 
 the Commons, or else by petition written, that there 
 never be no law made thereupon and engrossed as 
 statute and law neither by additions, neither by 
 diminutions, by no manner of term or terms the which 
 that should change the sentence and the intent asked 
 by the Speaker mouth or the petitions beforesaid given 
 up in writing by the manner foresaid without assent 
 of the foresaid Commons. Considering, our Sovereign 
 Lord, that it is not in no wise the intent of your 
 Commons if it be so that they ask you by speaking or 
 by writing two things or three or as many as them 
 lust but that even it stand in the freedom of your 
 high regality to grant which of those that you lust 
 and to werune the remanent." 
 
 It is worthy of note that this petition is inserted in 
 the English tongue upon the Parliament Roll. The 
 petition is enacted by the King's especial grace." 
 Again, in 1439 (18 Hen. VI.), we have a petition by 
 the Commons, in behalf of the Percys for the repeal 
 of a proviso appended to a judgment in Parliament in 
 their favour on this very ground :— 
 
 That the said clause of proviso in the response of 
 the late King and the matter therein contained was 
 
 ' Rolls of Parliament, 2 Hen. V. vol. 4, p. 22. 
 
12 INTRODUCTORY 
 
 not comprised in the petition of the Commons, but 
 was entirely the words of the late King.^ 
 
 The petition was granted and the proviso repealed, 
 so that at this time it was clearly recognised that 
 although the King, with the advice of the Lords, 
 might grant or refuse the relief asked by the Commons, 
 he could not vary from it and substitute for their 
 suggestion a suggestion of his own.^ 
 
 Other reasons there are which might be adduced for 
 this conclusion if this were the place for an exhaustive 
 discussion of the topic, but enough has perhaps been 
 said to put the reader on his guard against a very 
 natural misconception, and one which has in former 
 times held a great place in the discussion of the 
 constitutional parts of the Lords and Commons respec- 
 tively in the exercise of the judicial powers of Parlia- 
 ment. Enough for that ipurpose is enough upon this 
 point, since whatever may in former times have been 
 the limit of the part which the Commons took in the 
 deliberations of Parliament, it can hardly be doubted 
 that the change of form by which they have ceased 
 to be petitioners and become advisers of the Crown 
 corresponds to an enfranchisement which has made 
 their House in all respects equal in authority with the 
 House of Lords. Whatever they could formerly 
 move by petition they can now move by Bill, and 
 therefore, even if their share in judicial Acts of Parlia- 
 ment had been more subordinate than it was in 
 mediaeval times, these old records would still be 
 authorities for the power of Parliament in its full 
 session to hear and determine private controversies 
 in a judicial proceeding no less than to remedy them 
 by the more circuitous method of legislation. 
 
 ' Rolls of Parliament, i8 Hen. VI. vol. 5, p. 12. See also the petition 
 of John Scrop, 20 Hen. VI. No. 12, Rolls of Pariiament, vol. 5, p. 42. 
 
 " At least one instance can be cited of an Act of Parliament passed 
 at the request of the Lords and with the assent of the Commons ; to 
 wit, I Hen. VII. No. 18, 6 R.Par. p. 289. 
 
SCHEME OF THIS COLLECTION 13 
 
 It has been thought convenient to make a distinction 
 between precedents which are exactly in point to the 
 extent of involving the reversal by Act of Parliament 
 of a judgment delivered by the House of Lords or 
 with the assent of the Lords in Parliament, and other 
 precedents which involve the exercise by the House 
 of Commons of its judicial functions, but not neces- 
 sarily upon appeal from the House of Lords. Accord- 
 ingly, the two classes of precedents have been collected 
 in separate chapters. Concerning the first class no 
 question can well arise. They are on all fours with 
 the present case. Concerning the latter class it is 
 conceivable that some distinction may be made upon 
 either of two grounds. It may be said that (i) instances 
 of appeal from subordinate courts do not establish 
 a right of appeal from the House of Lords, and that 
 (2) examples of jurisdiction exercised in cases of first 
 instance do not imply an appellate jurisdiction. 
 
 Now to both these objections there is, as I conceive, 
 a very simple answer, and it may be stated in the 
 language of Sir Edward Coke. In respect of all 
 matters which it touches Parliament exercises a juris- 
 diction so " transcendent and absolute " as that " it 
 cannot be confined either for causes or persons within 
 any bounds." With some matters — as, for example, 
 religious belief — it does not interfere at all. But in 
 matters of judicature it always has interfered in the 
 past, and it still does interfere at the present. In this 
 respect, therefore. Sir Edward Coke's rule applies. It 
 is impossible to suggest that the judgment of the 
 House of Lords is not appealable in the full Court of 
 Parliament in consideration of the authority of the 
 judges by whom its judgments are rendered, for that 
 would be to confine the jurisdiction by a consideration 
 of persons; and it is equally impossible to say that 
 this appeal is of a different nature from other judicial 
 questions which the Parliament is accustomed to deal 
 with, for that would be to confine the jurisdiction in 
 respect of causes. If the Parliament is really supreme. 
 
14 INTRODUCTORY 
 
 and the Supreme Court of Judicature within the 
 realm, then this ultimate appellate jurisdiction cannot 
 be denied to it. 
 
 But, indeed, the suggested distinction between 
 original and appellate jurisdiction would seem to be 
 unfounded. A false judgment, whether falsified by 
 error as to fact or error as to law, is itself a grievance 
 recognised as such from the earliest period of our 
 legal history, for the relief of which there have always 
 been courts open to the aggrieved party. Very 
 generally the remedy has had to be pursued in a 
 court other than that in which the error has arisen, 
 but this is a rule subject to notable exceptions. Error 
 in Parliament has always been set right in Parliament, 
 because there is no superior court which in that case 
 can give relief. And error in Chancery was in former 
 days redressed upon a bill of review by the Chancellor 
 himself even when the error was his own. To this 
 day there is what is in substance an appeal from a 
 Chancery judge sitting in chambers to the same judge 
 sitting in open court. In like manner a writ of Habeas 
 Corpus refused by one judge may be granted by 
 another. In all these cases the jurisdiction to rehear 
 is in substance an appellate jurisdiction, but it differs 
 in no respect from an original jurisdiction. It means 
 only that the first decision is not conclusive, and that 
 the judge upon the second hearing is bound to 
 consider the case de novo, and is authorised to make 
 an order such as in his unfettered judgment ought to 
 be made upon the merits of the case. This is in effect 
 an appellate jurisdiction, but it is not essentially 
 different from an original jurisdiction, since the first 
 decision, although an incident, is not a necessary 
 incident in the proceedings. A Court of Appeal, 
 properly so-called, cannot .entertain a question which 
 has not been litigated in a Court of First Instance. 
 A superior court can and accordingly we find that in 
 Parhament appeals have sometimes proceeded by way 
 of removing a cause from the cognisance of an 
 
JURISDICTION OF FULL PARLIAMENT 15 
 
 inferior court into Parliament there to be dealt with 
 without regard to the proceedings already had in the 
 court below. This process of appeal by removal is 
 also well known in the Court of King's Bench, which 
 deals in that way with certain matters from its inferior 
 courts, and it serves to put in a clear Hght the 
 essential identity of the jurisdiction, whether original 
 or appellate, exercised by a superior court. 
 
 In this view of the matter the exercise by Parliament 
 of an original jurisdiction affords good precedents for 
 its appellate jurisdiction, since we can proceed from the 
 one to the other upon the principle that the jurisdiction 
 of Parliament is so unlimited that not even the plea of 
 res judicata serves to confine it. If a wrong has been 
 done by an erroneous judgment it may be undone by 
 an Act of Parliament. If a wrong done has been 
 established by an erroneous judgment it may be 
 redressed by Act of Parliament, that judgment not- 
 withstanding. In this connection the judgment simply 
 does not count. Every exercise of jurisdiction, therefore, 
 which serves to illustrate the law of Parliament serves 
 also as a precedent for the exercise of its appellate 
 jurisdiction. It is in this view that Chapter IV. has 
 been devoted to precedents having this indirect bearing 
 on the main question here discussed. 
 
CHAPTER I 
 
 OPINIONS EXPRESSED BY JUDGES AND 
 WRITERS OF AUTHORITY 
 
 Opinions expressed by persons of authority as to the 
 power of the full Parliament to proceed judicially in 
 the consideration and decision of matters in litigation 
 by way of appeal. 
 " Fleta." — The author of Fleta says : — 
 
 The King has his Court in his Council in his Parlia- 
 ment where, the prelates, earls, barons, principal men, 
 and other men of^ experience {peritis} being present, the 
 doubts of judges are resolved, new remedies are pro- 
 vided for new wrongs, and justice according to his 
 merits is awarded to every man.^ 
 
 Sir John Fortescue, C.J.^ — This distinguished judge, 
 the author of De laudibus legum Anglice, had the 
 misfortune to be included in an Act of attainder 
 which settled Edward IV. upon the throne. In 1473 
 he petitioned for a reversal of his sentence, and his 
 petition is set out in the Parliament Roll at the 
 passage above cited. In it he formulates the relief 
 for which he asks, and thus we get in a very striking 
 form the authority of this great judge for the pro- 
 position that a judgment in Parliament is to be set 
 aside " with the advice and assent of the Lords 
 Spiritual and Temporal and the Commons." 
 
 Hussey, C.J., and the other judges in the Exchequer 
 Chamber in the year 1485.' 
 
 ' Fleta, book ii. ch. 2. 
 ^ 6 R.Par. p. 68. 
 => Y.B. I Hen. VII. (s) p. 4. 
 16 
 
FORTESCUE— HUSSEY— COKE 17 
 
 5. A question was moved before the Justices— What 
 should be the order of procedure in this Parliament 
 for annulling certain attainders, seeing that many who 
 were in Parliament were attaint. Memorandum that 
 on the first day of the Parliament of King Henry VII. 
 viz. the 7th November of the first year of his reign 
 the Judges assembled in the Exchequer Chamber were 
 of opinion that as to all those who were attaint and 
 were elected Knights of Shires or Citizens or Burgesses 
 in this Parliament the Act of Attainder should first be 
 revoked or annulled and that the said attainted persons 
 should not be present in Parliament at the reversal of 
 the Act and when the Acts of Attainder against them 
 were reversed and annulled they all and every of them, 
 to wit Lords and Commons should appear in their 
 
 {)laces and then proceed according to law and in their 
 awful persons, for it is not convenient that those who 
 are attaint etc. should be lawful judges. 
 
 Sir Edward Coke. — Sir Edward Coke, in the 4th 
 Inst. ch. I, p. 36, speaking of the power and jurisdiction 
 of Parliament, says : — 
 
 Of the power and jurisdiction of the Parliament for 
 making of laws in proceeding by bill it is so trans- 
 cendent and absolute as it cannot be confined either 
 for causes or persons within any bounds. Of this 
 Court it is truly said : Si antiquitatem species, est 
 vetustissima, si dignitatem, est honoratissima, si juris- 
 dictionem, est capacissima. 
 
 Huic ego nee metas rerum, nee tempora pono. 
 
 It is clear that in this passage Sir Edward Coke 
 intends to include judicial as well as legislative func- 
 tions. Not only is this the fair meaning of his dictum, 
 that if regard be had to the jurisdiction of the Parlia- 
 ment it is of the amplest, but the same thing further 
 appears from the illustrations which he adduces, for of 
 the examples which he gives as being in point no one 
 is in the nature of what would now be called a public 
 general Act. All are in the nature of private Acts 
 mostly affecting status, while several of them are 
 strictly judicial, being Acts of attainder. 
 
i8 OPINIONS BY JUDGES AND WRITERS 
 
 Sir Matthew Hale. — There is a treatise by Sir 
 Matthew Hale, edited by Francis Hargrave and pub- 
 lished in 1796, under the title, Jurisdiction of the Lords' 
 House. It will be conceded that a treatise on such a 
 subject from the pen of Sir Matthew Hale is of special 
 value, not only by reason of the famous learning of its 
 author, but also in particular because he was, as is 
 well known, a great collector of precedents relating 
 to the subject of his book. And it will be remem- 
 bered in this connection that the edition of the Rolls 
 of Parliament printed by order of the House of Lords 
 in the eighteenth century was, as to a large part 
 thereof, derived from the collection of Sir Matthew 
 Hale's papers existing at Lincoln's Inn. The con- 
 clusion of that learned author upon the present point 
 is expressed in the following passage (ch. xxii.) : — 
 
 I have before shewn the difference between the 
 plenum parliamentum (consisting of the King and both 
 Houses of Parliament and sometimes applied to both 
 Houses only) and the Curia parliamenti, Curia in parlia- 
 mento coram nobis, and Consilio nostro in parliamento, 
 etc., which are oftentimes intended of the upper 
 House of Parliament, as well as Coram prelatis, pro- 
 ceribus et magnatibus in parliamento. 
 
 According to this distribution we shall find, especially 
 in ancient records, two kinds of Courts (if I may so 
 call them), wherein errors were examined — ^viz. errors 
 in pleno parliamento and errors examined in the Lords' 
 House. 
 
 Touching examinations of errors in pleno parliamento 
 and the decision thereof by consent of both Houses, 
 this I call an extraordinary way because of latter ages 
 much disused. The other I call ordinary because it is 
 that method of examining errors in Parliament that 
 now is and for some ages last past hath been most 
 if not altogether in use. 
 
 Touching the former there are many ancient 
 instances where upon petition of parties unduly 
 attaint or their heirs the records of^ the attainders 
 were brought in plenum parliamentum, and errors 
 assigned and judgments thereupon reversed. . 
 
SIR MATTHEW HALE 19 
 
 And thus far touching the reversal or affirmance 
 of judgments upon petitions of error in pleno parlia- 
 mento. 
 
 Somewhat I shall add touching reversal and affirm- 
 ance by writ of error in pleno parliamento which were 
 not in ancient times so usual as petitions of that kind. 
 
 The only precedent that I find of this nature by 
 writ is that in Rastall's entries — title, " Error in Parle- 
 ment " — which appears to be a writ of error brought, 
 as I take it, in the Parliament of i H. 7 upon a judg- 
 ment given in the King's Bench in the time of E. 4. 
 The writ was to remove the record. Coram nobis in 
 parliamento ut, iitspectis recordo et processu praedidis, 
 nos de concilia et advisamento dominorum spiritualium 
 et temporalium et communitatis in parliamento nostro 
 praedicto existentium ulterius pro erore illo corrigendo 
 fieri faciamus quod de jure et secundum legem et con- 
 suetudinem regni Anglice fuerit faciendum. 
 
 This writ seems to be the very case of i H. 7. 19. 
 Howerdine's case and the time of its issue and the 
 first letters of some of the names seem to accord with 
 the parties in that record upon which case notwith- 
 standing the judges there agree that the Commons 
 ought not to have a voice, but only the Lords with the 
 advice of the judges. And possibly there might be a 
 new writ brought accordingly. But surely such a writ 
 as this, though not in the usual form that obtained in 
 latter ages, might issue, and upon such a writ the 
 Commons would have been interested in the judgment 
 as well as in the cases of the proceeding upon petition 
 of error above mentioned where the Commons had 
 also a concurrent voice though this hath long been 
 disused.^ 
 
 The reference in this passage to something " before 
 
 ' This instance of an appeal to Parliament by writ of error is not in 
 fact unique. A writ of this sort is set out in 4 R.Par. 17 Anno 2 
 Hen. V. No. II ; and in i R.Par. p. 425, there is a petition by Richard 
 de Bemets complaining of delay in the King's Bench, and praying 
 for a writ to remove the cause into Parliament, so that judgment 
 might there be given " as has before these times been used in the 
 like case." From these examples it would seem probable that appeals 
 to Parliament by writ were formerly much more gommon than Sir 
 Matthew Hale supposed. 
 
20 OPINIONS BY JUDGES AND WRITERS 
 
 shewn " is an allusion to ch. xxi. of the same treatise, 
 where Hale writes (p. 123) : — 
 
 Regularly when a judgment is given in such a Court 
 as hath no Court immediately superior to it where 
 its errors in judgment may according to the common 
 law of the land be examined but the Parliament, 
 there a writ or bill of error lies in Parliament. But if 
 by the constitution of the common law it have another 
 superior Court wherein its errors may be examined, 
 it is not to go per saltum into Parliament by writ or 
 petition of error. Particular instances will make the 
 learning hereof more plain. 
 
 I. As to Parliament itself, if a judgment be given 
 (suppose of attainder or of reversal or affirmance of a 
 judgment) by full Parliament, viz. by the assent of the 
 King and both Houses of Parliament, this, indeed, may 
 be reversed in plena parliamenfo, but cannot be reversed 
 or proceeded upon by way of error in the Lords' House 
 alone. 
 
 This was the case of Richard Arundell, Rolls of 
 Parliament, 4 Ed. III. No. 13, who petitioned the King 
 and his Council in Parliament (which was plainly the 
 Upper House in Parliament) for the reversal of the 
 judgment of attainder given against his father, but 
 could not be admitted because the judgment against 
 his father feust affirme en parlement. But if a judg- 
 ment of attainder or affirmation or reversal be given in 
 the Lords' House in Parliament, a writ of petition of 
 error lies at another session in the same Lords' House 
 to reverse their own judgment, and possibly it may be 
 done even the same session. Many instances of this 
 nature are, as in the case of Alice Peres of Holt and 
 Burgh of the Earl of Salisbury, and others, for which 
 see Rolls of Parliament, etc." 
 
 William Camden. — Camden, in the preface to his 
 Britannia, has a chapter entitled " The Law Courts of 
 England," in which he first mentions the Parliament, 
 and after defining it as consisting of " The King, the 
 Lords Spiritual and Temporal, and the Commons," who 
 represent the whole body of the nation, he adds :— 
 
 " It is not held at fixed times, but called at the King's 
 pleasure as often as there is occasion to consult about 
 
SELDEN— BLACKSTONE— HARGRAVE 21 
 
 difficult emergencies for the general good of the State, 
 and it is dissolved in like manner by his sole authority. 
 But it has a supreme and sovereign power to enact, 
 confirm, repeal, explain, revive obsolete laws, deter- 
 mine difficult cases between individuals and, in one 
 word, in all matters which respect the good of the 
 nation or private persons " (p. cxliv, Ed. 1789). 
 
 John Selden. — John Selden, in his treatise of the 
 jurisdiction of Parliament, says, speaking of judgments 
 in the House of Lords : " Many judgments have been 
 reversed for error§ whereof there be many precedents," 
 and he assigns jurisdiction to Parliament in six cases 
 of which the second is " In the reversing erroneous 
 judgments in Parliament." ' This treatise of Selden's 
 is, however, a mere fragment, and breaks off at the 
 conclusion of his first point, so that this statement is 
 not elaborated there. It will, however, be seen from 
 what follows that there is abundant justification in the 
 Rolls of Parliament for Selden's doctrine. 
 
 Sir William Blackstone. — Sir W. Blackstone, in his 
 lecture on the absolute rights of individuals (Comm. 
 vol. i. ch. i. 4, 4th ed. p. 112), says : — 
 
 If there should happen any uncommon injury or 
 infringement of the rights before mentioned which the 
 ordinary course of law is too defective to reach there 
 still remains a fourth subordinate right appertaining 
 to every individual — namely, the right of petitioning 
 the Sovereign or either House of Parliament for the 
 redress of grievances. 
 
 Francis Hargrave. — Francis Hargrave, the learned 
 compiler of the State Trials, and prefacer of Sir 
 Matthew Hale's treatise above referred to, discusses 
 the same subject at length in his preliminary note, and 
 arrives at the following conclusion : — 
 
 That the lofty appellant jurisdiction which they [the 
 Lords] really possess and exercise was neither so 
 
 ' Op. Omn. vol. 3, Pt. II. p. 1589. 
 
22 OPINlOl4S BY JUDGES AND WRITERS 
 
 ancient nor so extensive, nor so pre-eminent, nor so 
 unquestionable as Prynne asserts, but yet is now 
 become firmly fixed upon the solid rock of constitution 
 and is at the same time so high and mighty as to be 
 only supervisable and controllable by the interposition 
 of that full and whole Parliament of which themselves 
 are an integral and essential member.^ 
 
 Lord Brougham, Lord Lyndhurst, Lord Ellenborough, 
 Lord Wynford. — The opinion of Lord Brougham, Lord 
 Lyndhurst, Lord Ellenborough, and Lord Wynford 
 was clearly expressed by the proceedings had in the 
 House of Lords during the session of 183 1 in con- 
 nection with the appeal in McGavin v. Stewart, a case 
 which fell but little short of being a very modern 
 precedent in point. In that case, a Scottish appeal, 
 the judgment of the House of Lords has been pro- 
 nounced by Lord Wynford, who inadvertently ordered 
 a new trial by special jury. The special jury being 
 unknown to Scottish law, the judgment was found 
 to be impracticable, and to meet the difficulty Lord 
 Brougham presented a Bill to reverse the decision and 
 put the case back for judgment. The first reading 
 was supported by Lord Lyndhurst and taken on 
 October loth, 1831.^ The second reading was post- 
 poned' and the Bill eventually dropped,* it having been 
 in the interval discovered that there was power to 
 drop the word " special " out of the order as drawn up, 
 thus meeting the difficulty.^ Lord Brougham's action 
 was warmly resented by Lord Wynford, and Lord 
 Ellenborough considered it " not expedient " to involve 
 the House of Commons in an Act to correct an error 
 in the judicial proceedings of the Lords; but, although 
 the matter was thus brought into animated discussion, 
 it does not seem to have been doubted by any of the 
 
 ' Hale's Jurisdiction of the Lords' House, p. ccxxvi. 
 
 " 8 Hans. 3rd ser. p. 379. 
 
 ' lb. p. 488. 
 
 * 16. p. 689. 
 
 ' Campbell, Lives of the Chancellors, vol. 8, p. 401. 
 
BROUGHAM— CAMPBELL— HALSBURY 23 
 
 learned Lords who took part in the discussion that 
 the course proposed by Lord Brougham was the 
 constitutional way of getting over the difficulty, and 
 the right way if no easier one could be found. 
 
 Lord Campbell. — To this opinion may be added that 
 of Lord Campbell, conveyed in his "Life" of Brougham,^ 
 when discussing the outcome of Lord Brougham's 
 judgment in Hutton v. Upfill.^ That judgment gave 
 great offence in legal circles, and was considered to be 
 . such dangerously bad law that Lord Campbell says : — 
 
 Apprehensions were entertained that an Act of Par- 
 liament would be necessary to set it right. But to 
 save Brougham this disgrace, which he himself once 
 proposed to put upon Lord Wynford, we contrived, 
 dunng the next session of Parliament, by a little strain- 
 ing and ingenuity in a similar case to draw distinctions 
 whereby the law upon this subject was satisfactorily 
 re-established. 
 
 The case in which this ingenuity was exercised 
 would seem to be Bright v. Hutton,' and it may be 
 noted that Lord Brougham in assenting to the judgment 
 in this latter case makes no attempt to reconcile it with 
 his own earlier decision, which he treats as overborne 
 by the answer given by the judges in the second case. 
 
 Lord Halsbury. — Lastly, there is the express decision 
 of the House of Lords itself upon the point in the 
 London Street Tramways Co. Ltd. v. the London 
 County Council.* The decision in that case was, as is 
 well known, that a " decision of the House of Lords 
 upon a question of law is conclusive and binds the 
 House in subsequent cases. An erroneous decision 
 can be set right only by an Act of Parliament." The 
 result is so stated in the head note, and perhaps it 
 may be thought that legislation such, for instance, as 
 
 ' Chancellors, vol. 8, p. 568. 
 » 2 H.L. Ca. p. 674. 
 ' 3 H.L. Ca. p. 341. 
 * (1898) A.C. p. 375- 
 
24 OPINIONS BY JUDGES AND WRITERS 
 
 the Thellusson Act, which altered the law for the 
 future but left the particular case untouched, is in- 
 tended by these words. But the actual language of 
 the Lord Chancellor in delivering judgment is more 
 precise. He says " nothing but an Act of Parlia- 
 ment can set right that which is alleged to be wrong in 
 a judgment of this House." These words seem chosen 
 for the express purpose of asserting the power of the 
 full Parliament to deal with all kinds of error in the 
 judgments of the House of Lords, and so to cover 
 reversal of the judgment itself as well as of the doctrine 
 of law contained in it, and this view receives strong 
 confirmation from the fact that the learned Lord 
 Chancellor had himself referred in the course of the 
 argument to Lord Brougham's Bill for reversing the 
 judgment in McGavin v. Stewart. This exercise of the 
 jurisdiction of the full Parliament was therefore present 
 to his mind, and cannot well be supposed to be excluded 
 from the fair meaning of his words. The Lords 
 Macnaghten, Morris, and James of Hereford concurred 
 in this judgment. 
 
CHAPTER II 
 
 DECLARATIONS AND DOCUMENTS HAVING 
 THE AUTHORITY OF PARLIAMENT, 
 CONCERNING THE JUDICIAL POWER 
 OF PARLIAMENT 
 
 The records of Parliament are very clear upon this 
 point, and exhibit a course of procedure which upon 
 the principle cursus curice est lex curice is conclusive as 
 to the jurisdiction of the full Parliament. The follow- 
 ing, among other examples, will be found in point. 
 
 Receivers and Triers of Petitions. — (i) In a.d. 1310 
 the Commons laid before King Edward II., at his 
 Parliament held at Westminster in that year, written 
 articles complaining of grievances. The sixth of these 
 grievances is thus expressed :— 
 
 That the knights, men of the cities, burghs, and 
 other towns who have come to his Parliament at his 
 command representing themselves and their people and 
 who have petitions to deliver for torts and grievances 
 done to them which cannot be redressed by common 
 law, nor otherwise without especial grant, find no 
 man to receive their petitions as was customary in the 
 Parliament in the times of the King our Lord his 
 father, to whom God shew mercy, and hereof they pray 
 grace and remedy. 
 
 The reply to this complaint is that :— 
 
 The King wills that in his Parliaments hereafter 
 persons shall be appointed to receive petitions, and 
 that they shall be dealt with by his Council as was 
 accustomed in the time of his father.^ 
 
 1 Rolls of Parliament, vol. I, p. 444- 
 
 25 
 
26 DECLARATIONS AND DOCUMENTS 
 
 From that time forward receivers and triers of 
 petitions have been appointed at the beginning of 
 every Parliament. At first, and indeed for a long 
 period of time, the petitions which they received had 
 reference chiefly to private grievances, and were 
 largely petitions of appeal. Speaking of the period 
 from Edward I. to Henry IV. Sir Erskine May says :— 
 
 During this period the petitions were, with few 
 exceptions, for the redress of private wrongs ; and the 
 mode of receiving and trying them was judicial rather 
 than legislative.^ 
 
 A large number of petitions were remitted to the 
 Courts of Common Law, because it appeared from 
 their subject matter that they could there be dealt 
 with. Others were sent to the Privy Council or to 
 the Chancellor or elsewhere, and certain, being matters 
 for the most part of grace and favour, were reserved 
 for the King's personal consideration. The residue, 
 a very miscellaneous collection of petitions which it 
 is not possible to place in any single class, were 
 presented for the consideration of Parliament, the 
 reason being that stated in the complaint of the 
 Commons, that they related to grievances which could 
 not be redressed at the common law without a special 
 or other grant. Of this nature, some involved the 
 exercise of original jurisdiction, others of appellate 
 jurisdiction, and among these latter will be found 
 instances, a few of which are cited below, in which 
 the appeal is brought either from a judicial decision of 
 the House of Lords or of the full Parliament itself in 
 an earlier session (below. Chapter III.). 
 
 The judicial purpose in the appointment of receivers 
 and triers of petitions is expressly stated in the 
 memorandum with which the Parliament Roll of the 
 ist Edward IV. (a.d. 1461) opens, to the following 
 effect :— 
 
 ' Parliamentary Practice, loth ed. p. 493. 
 
RECEIVERS AND TRIERS OF PETITIONS 27 
 
 And furthermore the said Chancellor declared how 
 the said Lord the King for the more expeditious 
 administration of justice to those who demanded it 
 had appointed and assigned certain receivers and 
 triers of petitions to be presented in the said Parhament 
 in form as follows.' 
 
 Thereupon follow the names of the receivers and 
 triers appointed for that Parliament. 
 
 The functions discharged by the receivers of 
 petitions when their office was not, as now, a sinecure, 
 appear from a proclamation made by them in the 
 year 1305 and preserved in Ryley's Placita Parlia- 
 mentaria ^ : — 
 
 We do you to wit in behalf of our Lord the King 
 that he wills and commands that all manner of people 
 who have petitions to present to this Parliament shall 
 deliver their petitions to Sir Gilbert de Robiri, to 
 Master John de Cam, to Sir John de Kyrkeby, and to 
 Master John Boussh, or to any of them between now 
 and the Sunday next after this (feast of) Saint Michael 
 at the hour of sunset. For after that hour he has 
 forbidden any petition to be received. 
 
 " This cry," adds the annalist, " was made in London 
 the Monday next after Michaelmas." 
 
 It will be easily understood that an invitation in 
 such terms would produce a crop of petitioners with 
 private grievances, and so we find upon reference to 
 the Parliament Roll. Sir Erskine May's authority, 
 quoted above, is perhaps sufficient on this point. 
 
 It appears, in fact, from the precedents collected in 
 Chapter IV. below, that the redress of private wrongs 
 by processes judicial rather than legislative has con- 
 tinued even to our own times to be one of the 
 indispensable functions of Parliament. 
 
 The Act for redress of delays in Courts of Justice.'— 
 This Act, after providing for the appointment of 
 
 ' Rolls of Parliament, vol. 5, p. 461. 
 
 ' p. 289. 
 
 ' 14 Ed. III. St. I.e. 5. 
 
28 DECLARATIONS AND DOCUMENTS 
 
 Commissioners to deal with arrears in the Courts of 
 Common Law, continues thus : — 
 
 And in case that it seemeth to them [t.e. to the Com- 
 missioners] that the difficulty be so great that it may 
 not well be determined without assent of the Parlia- 
 ment, the said tenour or tenours [we should now say 
 "records"] shall be brought by the said [Commission- 
 ers] unto the next Parliament, and there shall be a 
 final accord taken what judgment ought to be given in 
 such case, and according to that accord it shall be 
 commanded to the Judges, before whom the plea did 
 depend, that they shall proceed to give judgment 
 without delay. 
 
 The Commons' Protest. — In a.d. 1399 the Commons 
 laid before King Henry IV. a protest and disclaimer of 
 judicial powers which has been much canvassed in 
 later times, and, together with the King's response, 
 constitutes perhaps the most authoritative existing 
 document on the subject of the distribution of judicial 
 functions in the High Court of Parliament. 
 
 It is perhaps necessary to a proper appreciation of 
 this document to bear in mind not only the con- 
 siderations set out above (pp. 9 to 12), but also the 
 circumstances amidst which this protest was produced. 
 The Parliament of 1399 was the first of Henry IV., 
 and its first business was to settle the succession to 
 the Crown upon the abdication of Richard II. The 
 abdication was indeed an act of doubtful validity. 
 Extorted from a prisoner in the Tower of London, it 
 would no doubt have been repudiated by that prisoner 
 should he ever have regained his liberty, and might be 
 thought wanting in force by such even as desired to 
 uphold it. Probably for this reason it was thought 
 necessary to get rid of Richard's claim by a judicial 
 Act of Parliament, and accordingly, a Parliament 
 having been summoned in Richard's name, his deed 
 of abdication was read and formally accepted by the 
 estates and people present in the assembly. There- 
 upon articles of complaint were exhibited charging 
 
THE COMMONS' PROTEST OF 1399 29 
 
 the King with misgovernment and misconduct in his 
 Royal office, and the question was put to the estates 
 separately and collectively whether the crimes and 
 defects alleged were sufficient and sufficiently notorious 
 for the deposition of the King. The assembled estates 
 responded by appointing commissioners to proceed 
 with the formal deposition, the commissioners includ- 
 ing a Bishop, as representative of the episcopal order ; 
 an Abbot, as representative of the Church in general : 
 an Earl, to stand for the Dukes and Earls ; a Baron, 
 for the Barons and Bannerets ; two Knights, represent- 
 ing the Knights and Commons of the north and of the 
 south respectively; and two Judges. Chief Justice 
 Thyrning was the spokesman of this body, and declared 
 that they acted in behalf and by the authority of 
 " all the states of this land." Later on, in the same 
 Parliament, a question arose of the safe custody of the 
 deposed King. This question is said upon the Roll to 
 have been submitted to the Lords, who adjudged him 
 to perpetual imprisonment ; but among the " Lords " 
 whose names are subscribed to the judgment are 
 Sir Thomas Erpingham and Sir Matthew Gournay. 
 The former had stood as representative of the Commons 
 of the south on the judicial commission, and the latter, 
 who seems to have been a Commoner of great dis- 
 tinction, since his name is included in the Order of the 
 Garter, concurred in some capacity which cannot now 
 be discovered. Analogy would suggest that he took 
 part in the proceeding as the representative of the 
 northern Commons. On that point, however, the 
 Roll is ambiguous, so that it is now uncertain whether 
 the Commons in this Parliament assembled took any 
 part in consigning the ex-King to prison. 
 
 It will be further remembered that in the period 
 immediately preceding Henry's accession treason had 
 become a very formidable charge, and that its indirect 
 effects were scarcely less formidable than the punish- 
 ment infficted upon the convicted traitor himself 
 Acts of attainder and the headsman's axe had filled 
 
30 DECLARATIONS AND DOCUMENTS 
 
 many a noble tomb, but in those days even a dead 
 man's revenge was to be dreaded, for an Act of reversal 
 might always restore to the heir the forfeited estates 
 of his ancestor when his party came to power, and 
 destroy in turn the family which the original attainder 
 had created. 
 
 It was in such circumstances that the Commons sub- 
 mitted to the newly crowned Henry IV. their protest 
 and disclaimer in the following form : — 
 
 Monday, the morrow of Almes, the 3rd November, 
 the Commons made their protestation as usual at the 
 commencement of Parliament, and furthermore they 
 shewed to the King that forasmuch as judgments of 
 Parliament appertained solely to the King and to the 
 Lords, and not to the Commons save in cases in which 
 it might please the King of his especial grace to shew 
 them the said judgments, for their ease that no record 
 should be made in Parliament against the said 
 Commons that they are or should become parties to 
 any judgments given or to be thereafter given in 
 Parliament. 
 
 To this demand of the Commons the Royal answer 
 is thus recorded in the Roll : — 
 
 " Whereupon it was answered to them by the Arch- 
 bishop of Canterbury at the commandment of the 
 King how the same Commons are petitioners and 
 demanders and that the King and the Lords at all 
 times have had and shall have of right judgments in 
 Parliament in manner as the same Commons have 
 shewn. Save that when statutes have to be made, or 
 grants or subsidies or such matters affecting the 
 common profit of the realm, the King wishes especially 
 to have their advice and consent. And that this order 
 of proceeding be held and observed in all time to 
 come." '■ 
 
 It will be observed that here, although the Commons 
 were no doubt extremely anxious to escape respon- 
 sibihty for attainders, and especially for the eminently 
 
 ' Rolls of Parliament, i Hen. IV. 79, vol. 3, p. 427. 
 
THE COMMONS' PROTEST OF 1399 31 
 
 risky judicial Acts just consummated, by which the 
 lawful King had been deposed and sentenced to per- 
 petual imprisonment, they did not venture to assert 
 complete immunity in their body from any possible 
 share in the judicial Acts of Parliament. They state 
 their case with a saving of such judgments as it might 
 please the King "of his especial grace to shew" to 
 them, thus clearly accepting responsibility for the Act 
 of deposition, which had undoubtedly been " shewn to 
 them." They had voted for it and for the appointment 
 of the judicial commission which pronounced the 
 sentence, and on that commission two representatives 
 of their own order had sat. The King by his answer, 
 compliant although it is in form, lays stress upon this 
 point by asserting his desire, and impliedly his right, 
 to have their advice and consent in the making of 
 statutes and in all matters, such as grants or subsidies, 
 affecting the common profit of the realm. The Act of 
 deposition, but perhaps not the sentence of imprison- 
 ment, was in the form of a statute, and though not a 
 grant, it may well have been comprehended in the class 
 of " matters affecting the common profit of the realm." 
 
 Among the other Acts settling the succession to the 
 Crown the following may be enumerated as having 
 been judicial rather than legislative in character : — 
 
 I Rich. III. No. i.^ — This Act is not to be found 
 among the printed statutes, having always been 
 treated as a private Act, although it provides for 
 the settlement of the Crown upon Richard and his 
 heirs. It is judicial in form, and purports to adjudi- 
 cate upon Richard's claim to the Crown by right of 
 inheritance. 
 
 I Hen. VII. No. 18.^ — This, again, is not to be found 
 among the printed statutes. It is a judicial sentence 
 reversing the last-mentioned Act, by which the title to 
 the English Crown was adjudged to be in Richard and 
 his heirs. It is therefore in the nature of a judgment 
 
 • Rolls of Parliament, vol. 6, p. 240. 
 ' Rolls of Parliament, vol. 6, p. 289. 
 
32 DECLARATIONS AND DOCUMENTS 
 
 in Parliament on appeal from an earlier judgment 
 in Parliament, which it reverses and sets aside. The 
 King's title is affirmed by the unnumbered statute— 
 the first of Henry's reign, which is printed under the 
 title of Titulus Regius} 
 
 25 Hen. VHI. c. 22.— This is a public Act and printed 
 accordingly, but it is essentially a judicial proceeding 
 to legitimate Henry's marriage with Anne Boleyn and 
 the issue of that marriage. Incidentally it limits the 
 succession to the Crown. 
 
 Other acts of settlement are here passed over because 
 they are fully legislative, inasmuch as they change the 
 law of succession as well as the title ; but even they 
 may be said to have a judicial aspect, and they serve to 
 illustrate the shading off of judicial into legislative 
 proceedings. 
 
 The Declaration of the reasons for dealing in Parlia- 
 ment with the case of the Judges and other lawyers 
 who had advised Richard II. that the proceedings of 
 his disaffected Lords were treasonable : — 
 
 The matter contained herein was so great and so 
 high and so much harm and mischief fell thereof, that is, 
 to wit, some persons dead, some in prison, forfeitures 
 of heritages and disherison, subversion of the law of the 
 land and high estate and great taken because of these 
 forfeitures in great oppression and charge of the 
 common people of the realm, and all bygone and 
 proceeded out of the course of the common law so that 
 by the course of the common law of the Crown and of 
 the land it might not well be redressed nor punished 
 but by the King and by his Lords Peers of his land 
 in this High Court of Parliament. Wherefore all 
 these Temporal Lords thought, etc.^ 
 
 Declarations as to the right to petition Parliament.— 
 
 Upon the reception by the Chancellor of Henry VI. 
 of a sealed packet from the hands of Richard, Duke of 
 Gloucester, containing a statement of his claim of title 
 
 • Rolls of Parliament, vol. 6, p. 270. 
 
 ' Rolls of Parliament, i Hen. IV. No. 8, vol. 3, p. 451, 
 
THE RIGHT TO PETITION 33 
 
 to the Crown, that officer asked the assembled Parlia- 
 ment whether it was their will that he should break 
 the seal and read the document in their hearing, or not, 
 to which question they replied : — 
 
 Inasmuch as every person high and low suing to 
 this High Court of Parliament of right must be heard 
 and his desire and petition understood, that the said 
 writing should be read and heard.^ 
 
 Another declaration on this subject is recorded in 
 the Journal of the House of Lords on September 9th, 
 
 1644. The House then resolved that : — 
 
 * 
 
 The House of Lords will receive no private petitions 
 in future but such as cannot have relief in inferior 
 courts of justice.^ 
 
 Judgments given in Parliament are protected by 
 the oath taken by Peers and others in 1397. — In an 
 
 attempt to give permanence to the settlement of the 
 affairs of his realm arrived at in the Parliament of 
 Salisbury in this year Richard II. required all the 
 Lords Spiritual and Temporal to swear individually to 
 its maintenance, and subsequently administered the 
 like oath to the Commons collectively. The occasion 
 seems to have been one of great solemnity, the oath 
 being taken in presence of the King after mass, and at 
 the shrine of St. Edward in Westminster Abbey. The 
 substance of the oath was : — 
 
 Well and truly to hold, support, and stand by all 
 the statutes, settlements, ordinances and judgments 
 made in this present Parliament.' 
 
 This precedent was followed by Richard's successor 
 in 1406, when again the judgments awarded, equally 
 with the statutes enacted, in Parliament are safeguarded 
 by the oath.* 
 
 ' Rolls of Parliament, 39 Hen. VI. No. 10, vol. 5, p. 375. 
 ' Jl. H.L. vol. 6, p. 700. 
 
 ' Rolls of Parliament, 31 Rich. II. No. 38, vol. 3, p. 355. Ibid. 
 No. 89, p. 372. 
 * Rolls of Parliament, 7 & 8 Hen. IV. No. 66, vol. 3, p. 585. 
 
 3 
 
34 DECLARATIONS AND DOCUMENTS 
 
 Reservation in the Act ag-ainst tumultuous assemblies 
 (13 Car. II. St. I.e. 5, s. 3) :— 
 
 Provided always, that this Act or anything therein 
 contained shall not be construed to extend to debar 
 or hinder any person or persons, not exceeding the 
 number of twenty aforesaid, to present any public or 
 private grievance to any member or members of 
 Parliament after his election and during the con- 
 tinuance of the Parliament or to the King's Majesty, 
 for any remedy to be thereupon had. 
 
 The title of the printed Rolls of Parliament. — The 
 
 Rolls of Parliament were printed in 1765 by order 
 of the House of Lords, under the title, Rotuli Parlia- 
 mentorum ut et petitiones et placita in Parliamento. 
 
CHAPTER III 
 PARTICULAR PRECEDENTS 
 
 In this chapter a selection of precedents will be adduced 
 which are conceived to be entirely in point to the 
 present purpose. They comprise three groups, which 
 may be thus described : — 
 
 1. A judgment given in the House of Lords, upon 
 the hearing of an appeal from a lower court, reversed 
 subsequently by judicial Act of the full Parliament. 
 
 These are exact precedents for the present case. 
 
 2. A judgment given in the House of Lords, sitting 
 as a court of first instance, subsequently reversed by 
 judicial Act of the full Parliament. 
 
 These are precedents in a somewhat larger sense, 
 but it is conceived that they cover the point of 
 jurisdiction. 
 
 3. A judgment given by authority of the full 
 Parliament, and subsequently reversed by the same 
 authority. 
 
 These are conceived to be precedents in the amplest 
 sense, as establishing the largest conceivable jurisdic- 
 tion, and on the principle that majus in se minus continet, 
 implying of necessity a jurisdiction to deal in the same 
 manner with a judgment of the House of Lords. 
 
 It should perhaps be added that this is not an 
 exhaustive list — the search for precedents having been 
 made under great pressure of time, and embarrassed by 
 the singular want of digested materials which hampers 
 every student of the history of our law and legal 
 procedure. 
 
 35 
 
36 PARTICULAR PRECEDENTS 
 
 1461. 1 Ed. IV. No. 32, 5 R.Par. p. 484. Judgment 
 against the Earl of Cambridge reversed. 
 
 In the year 141 5 the Earl was indicted of treason 
 before certain judges commissioned by the King's writ 
 (3 Hen. V. 4 R.Par. p. 65), found guilty of treason 
 and sentenced to be beheaded. In the same year the 
 judgment was, upon the request of the Commons in 
 Parliament, affirmed by the Lords of Parliament with 
 the assent of the Duke of Bedford (acting as Viceroy 
 in the absence of the King in France). This, therefore, 
 was a judgment rendered by the Lords in Parliament — 
 not an Act of Parliament, since it was made by the 
 Lords with the assent of the Crown, and not by the 
 Viceroy with the assent of the Peers. 
 
 By the above-mentioned Act of the full Parliament 
 the judgment is declared to be erroneous, and the 
 verdict, judgment, and affirmation of the judgment are 
 all declared void and repealed. 
 
 1455. 34 Hen. VI. No. 40, 5 R.Par. p. 451. Attainder 
 of Sir William Oldhall reversed. 
 
 This Act reverses a judgment in Parliament against 
 Sir W. Oldhall, which was itself based upon the finding 
 of a jury in the King's Bench. The petitioner got the 
 finding set aside, presumably by a writ of attaint against 
 the jury which had convicted him, and then obtained 
 an acquittal from a second jury. Thereupon this Act 
 was passed to reverse the erroneous judgment in 
 Parhament. 
 
 1553. 1 Mar. sess. 2, c. 1. Act reversing the 
 sentence of divorce pronounced against Katharine 
 of Arragon. 
 
 The sentence annulling Henry's marriage with 
 Katharine was pronounced by Cranmer and confirmed 
 by Act of Parhament. Both the sentence and its 
 
THE HOUSE OF LORDS REVERSED 37 
 
 confirmation in Parliament are reversed by this Act, 
 which declares the marriage to have been lawful. The 
 Act is printed. 
 
 1354. 28 Ed. III. No. 8, 2 R.Par. p. 255. Judgment 
 against the Despensers reversed.' 
 
 The facts here are somewhat obscure, and it is not 
 possible to say with confidence what precisely was 
 the nature of the judicial proceedings now set aside. 
 Probably it was in the nature of a judgment upon an 
 impeachment, in which case the House of Lords is 
 a court of first instance. What does appear is that 
 in 1330 articles were exhibited in Parliament against 
 Roger Mortimer, and that, having considered these 
 charges, the Peers, " as judges of Parliament," with the 
 assent of the King, found him guilty and passed capital 
 sentence.^ 
 
 By the above-mentioned Act the judgment is 
 declared erroneous in all points, and chiefly because 
 Mortimer had not been properly accused and heard in 
 his defence, and the judgment is accordingly reversed 
 by Act of the full Parliament. 
 
 1397. 21 Rich. IL No. 63, 3 R.Par. p. 366. Judgment 
 of exile against the Despensers and its confir- 
 mation in 1 Ed. III. reversed. 
 
 The facts here are extremely complicated, and are 
 the more difficult to discover because the record in the 
 earlier Parliament Roll is defective. But a very full 
 recital prefaces the Act above cited, and may be 
 consulted for such information as is now to be had. 
 It appears that judgment of exile had been pronounced 
 against the Despensers; father and son, by the Peers 
 of Parliament, as is alleged, in the King's absence from 
 Parliament, and as is also alleged, and no doubt truly, 
 against his secret will. This judgment was pronounced 
 
 ' 2 R.Par. p. 51. 
 
38 PARTICULAR PRECEDENTS 
 
 in — or at least during — a session of Parliament at 
 Westminster in 1341, and was annulled at another 
 session of Parliament held at York in the same year ; 
 but of those proceedings for reversing this judgment 
 there does not appear to be any record except what is 
 to be found in the recitals already mentioned. It may 
 be, therefore, that some doubt existed as to the validity 
 of the proceedings at York. In any case, Thomas 
 Despenser, Earl of Gloucester, obtained by the above- 
 mentioned Act a full reversal by the authority of the 
 full Parliament of the judgment pronounced by the 
 Peers against his father. 
 
 1397. 21 Eich. II. c. 12. Eeversal of Attainder. 
 
 This is a public Act, and is printed in Raithby's 
 edition of the statutes at large. The proceedings 
 leading up to it are highly instructive on many 
 points of the law of Parliament. They were in 
 the nature of impeachment, the accused being the 
 Archbishop of York, the Duke of Ireland, the 
 Chief Justice Tresillian, the Lord Mayor of London, 
 and certain others. The promoters of the impeach- 
 ment were the Duke of Gloucester and certain other 
 peers, themselves, of course, members of the judicial 
 body— that is to say, of the House of Lords. At a certain 
 stage in the proceedings several puisne judges were, 
 on petition of the Commons, added to the number of 
 the defendants, and the proceedings upon the two 
 petitions— of the accusing peers and of the Commons — 
 were consolidated. The Lords summoned as expert 
 advisers the judges, certain sergeants and other 
 common lawyers, and certain civilians. They had 
 first to deal with a preliminary point of law, it being 
 objected that the entire proceeding was irregular and 
 illegal. On this point the lawyers— both common and 
 civil— advised that the objection was well taken, but 
 the Peers nevertheless set it aside with the ruling 
 that :— 
 
THE FULL PARLIAMENT REVERSED 39 
 
 In so great a crime which touched the person of the 
 King the course should not be carried on elsewhere 
 than in Parliament, and that it belongs to the Lords 
 of Parliament and to their franchise and liberty by 
 ancient custom of Parliament to be judges in such 
 case and of such cases to judge by assent of the 
 King. 
 
 They furthermore ruled that in a case of so great 
 consequence the trial should not be regulated by the 
 course, process, or order used in inferior courts or 
 places, and that the proceedings in question were 
 good and effectual according to the law and course 
 of Parliament/ Hereupon the Archbishop of 
 Canterbury and the Spiritual Peers withdrew in a 
 body from the assembly, protesting that they would 
 take no part in the discussion of this matter. 
 Eventually, therefore, the verdict and sentence were 
 pronounced by the Temporal Lords only, who, "as 
 judges of Parliament and with the assent of the 
 King," found all the defendants guilty of treason, and 
 sentenced the laymen to be drawn, hanged, and dis- 
 inherited, the Archbishop to lose his temporalities and 
 to be respited for further consideration. The Chief 
 Justice and the Lord Mayor, having the misfortune to 
 fall into the hands of the prosecutors, were produced at 
 the bar of the Lords' House, sentenced, and capitally 
 executed the same day. The other judges, whom only 
 the Commons pursued, were respited by the King and 
 banished to Ireland with small pensions to provide for 
 their sustenance. 
 
 The special interest of this case, apart from the 
 many questions of Parliamentary law which it raised, 
 lies in the fact that the offence charged against the 
 judges was that of having subscribed to an unsound 
 opinion on certain points of law when consulted by 
 the King. The decision against them in the House of 
 Lords was that the opinion so expressed was contrary 
 
 ' Rolls of Parliament, vol. 3, p. 236. For another decision in the 
 same sense, see i Hen. IV. No. 79, 3 R.Par. p. 427. 
 
40 PARTICULAR PRECEDENTS 
 
 to law, and the charges of treason and criminal pro- 
 ceedings were only accessories lending emphasis to 
 this decision upon the points of constitutional law 
 involved. 
 
 The reversing Act above cited sets out the questions 
 put to the judges, and the answers by them given, and 
 affirms their opinion, disallowing and reversing in its 
 turn the judgment on these points of the House of 
 Lords. The Act, therefore, is much more than a mere 
 Act of restitution, and shows conclusively that on a 
 dry point of law the ultimate appeal is not with the 
 House of Lords, but with the full Parliament. 
 
 1354. 28 Ed. III. No. 15, 2 R.Par. p. 257. Judgment 
 against the Earl of Arundell reversed. 
 
 The judgment which in this case is reversed is 
 contained in an Act of Parliament, and an Act which 
 related to others beside the Earl. The words in that 
 statute "touching the death and destruction" of the 
 Earl are declared to be "void, erroneous, and null." 
 His heir is rehabilitated. 
 
 1475. 14 Ed. IV. No. 31, 6 E.Par. p. 132. Conviction 
 of felony against Henry Bodragan and Richard 
 Bonethon reversed. 
 
 Thomas Nevill accused the above-named of having 
 attacked his tin-mine in Cornwall with a band of 
 rioters and robbed him of his ore. On this ground he 
 promoted a Bill in Parliament for giving him an extra- 
 ordinary remedy, out of the course of the common 
 law, by which the investigation of the charge was to 
 be taken away from a jury and confided to justices ; 
 the accused were to be summoned by proclamation to 
 appear, and if they failed to appear they were to be 
 ipso facto convicted of the felony charged against them. 
 The Bill passed ; the accused made default of appear- 
 ance, and accordingly became felons by the Act of 
 Parliament. Later, in the same session of Parliament, 
 
THE FULL PARLIAMENT REVERSED 41 
 
 they succeeded in showing that the charge was trumped 
 up against them, and obtained relief by means of this 
 reversing Act. 
 
 1485. 1 Hen. VII. No. 16, 6 R.Par. p. 288. Reversal 
 of the Attainder of Hen. VI. and others. 
 
 The attainder by Act of Parliament of the late King 
 was one of the earliest Acts of Ed. IV. (5 R.Par. p. 478). 
 That Act is by this reversing Act declared to be " an 
 inordinate, seditiqus, and slanderous Act," and repealed 
 accordingly. Acts of attainder against the Duke of 
 Bedford and others are reversed by the same statute, 
 and are denounced as having been passed by reason 
 of their " true and faithful service " rendered to their 
 rightful King. 
 
 1662. 13 & 14 Car. II. c. 29. Reversal of Strafford's 
 attainder. 
 
 Here the judgment reversed is a Parliamentary 
 judgment, but not upon any form of appeal. The 
 original judgment is reversed for errors duly alleged. 
 
 These instances may suffice to show that the 
 ultimate appeal is in all cases to the full Parliament ; 
 and, indeed, that position can hardly be called in 
 question when it is realised that the full Parliament is 
 a court of justice. That conceded, there can be no 
 question that its jurisdiction is, as Sir Edward Coke 
 says, " Capacissima," and includes the power of 
 reversing all courts whatsoever, the House of Lords 
 and itself included. 
 
CHAPTER IV 
 
 PRECEDENTS IN A GENERAL SENSE 
 
 It has above been shown that the problem of setting 
 right an error in a judgment of the Parliament, whether 
 delivered in the House of Lords or embodied in an 
 Act of Parliament, is no new thing, and that it is 
 regularly dealt with by a judicial Act of the full 
 Parliament. Since the proposition so stated seems to 
 be a cause of astonishment to many people who might 
 be supposed to be fully informed upon the point, it is 
 conceived that it may be useful to exhibit, in the form 
 of a very brief synopsis, the immense amount of judicial 
 work which has been done in the past and still falls to 
 be done in the regular course of Parliamentary busi- 
 ness by the King in his High Court of Parliament. One 
 word only need be premised. In dividing the work of 
 Parliament between its legislative and its judicial 
 functions the following is the criterion which has been 
 here adopted : — 
 
 An Act of Parliament is a judicial Act if it is enacted 
 ex post f ado to provide a remedy for a mischief which 
 has actually occurred. 
 
 An Act of Parliament is a legislative Act if it is 
 enacted ex hypothesi to provide against, or to provide a 
 remedy for, a mischief which is apprehended. 
 
 So apportioned, the judicial work of Parliament 
 comprises : — 
 
 A. In present common use. 
 
 1. Divorce Acts. <A11 Irish divorces are still eflfected 
 by Act of the full Parliament.) 
 
 42 
 
JUDICIAL ACTS OF PARLIAMENT 43 
 
 2. Estate Acts. (To legitimate laudable breaches of 
 
 trust and otherwise render proprietary rights 
 effective.) 
 
 3. Compulsory powers of purchase — which are included 
 
 in all Railway Acts and such like, and are devised 
 to adjust the rights of expropriated owners 
 against compulsory purchasers. 
 
 4. Naturalisation Acts — or Acts which otherwise 
 
 affect personal status. E.g. 9 & 10 Wm. III. 
 c. 20. 
 
 These are often mere administrative Acts, but some- 
 times, as in the case cited where the children of soldiers 
 on active service born abroad are naturalised, they are 
 passed to remedy a hardship growing out of the 
 inequitable operation of the common law. 
 
 B. Formerly in common use — now seldom used. 
 
 5. Acts of Attainder. E.g. 12 Car. II. c. 30 (Oliver 
 
 Cromwell, post-mortem). 
 
 6. Acts of Pains and Penalties. E.g. 13 Car. II. 
 
 c. IS ; 9 Geo. I. c. 17. 
 
 These are in effect criminal proceedings — Acts of 
 Attainder not involving corruption of blood. 
 
 7. Acts of Restitution. 
 
 These are of many kinds. Not a few are strict pre- 
 cedents for the present case, since they reverse a 
 judgment in Parliament at the same time that they 
 restore the petitioner to his civil status — e.g. i Hen. VII. 
 (unnumbered), 6 R.Par. p. 273. Some leave the original 
 sentence untouched — e.g. i Hen. VII. No. 11, 6 R.Par. 
 p. 284. Some, again, take the form of pardons, and so 
 confirm the original sentence by implication — e.g. 
 3 & 4 Ed. VI. ch. 13 (Sherrington's Act). 
 
44 PRECEDENTS IN A GENERAL SENSE 
 
 8. Bastardising Acts. E.g. 2 Wm. & Mar. Sess. i, 
 
 c. iv. (to bastardise children born of John 
 Lewknor's wife during her elopement). 
 
 These are judicial in the sense that they are usually 
 intended to prevent the imposition of a false stock upon 
 an estate at a date when the production of evidence 
 would be difficult. They were before the date of 
 universal registers, and are now replaced when neces- 
 sary by a suit to perpetuate testimony. 
 
 9. Pardons. E.g. 4 Hen. VI. No. 26, 4 R.Par. p. 302. 
 
 In some cases, as in the case cited, these are truly 
 judicial proceedings, intended to set aside an erroneous 
 verdict. But usually they are mere fiscal measures — 
 in effect, limitation Acts binding the Crown. 
 
 10. Acts of Exemption. E.g. 2 Hen. V. No. 27, 
 
 4 R.Par. p. 44. 
 
 These are to exempt favoured individuals from Acts 
 of pains and penalties. In form judicial, they must be 
 reckoned such, since there is no criterion by which the 
 administration of Parliamentary justice can be surely 
 distinguished from favour. 
 
 11. Acts of Resumption. E.g. 33 Hen. VI. No. 47, 
 
 5 R.Par. p. 300. 
 
 These are really Acts of rough justice, although in 
 form for the more part fiscal. The motive in most 
 cases, if not in all, is to set aside grants unduly obtained 
 by courtiers from the Royal bounty where no public 
 service has been rendered in return. 
 
 12. Acts repealing Patents. E.g. 21 Jac. I. c. 11 
 (Heron's patent for salting fish). 
 
 These are really particular Acts of resumption based 
 upon legal grounds of defeasance, and therefore fully 
 judicial. 
 
JUDICIAL ACTS OF PARLIAMENT 45 
 
 13. Acts prolonging or reviving Patents. E.g. 47 & 48 
 
 Vic. c. cxciv. 
 
 These are always based on grounds of merit, and 
 intended to remedy some hardship caused by the 
 rigorous application of the law. They are, therefore, 
 substantially judicial, and serve to apply an equitable 
 remedy to a mischief at present beyond the equitable 
 jurisdiction of the Supreme Court. 
 
 14. Judgments on Appeal. 
 
 In ancient times all appeals from the King's Bench 
 or other inferior courts {i.e. courts inferior to Par- 
 liament) were brought before the King in the full 
 Parliament (see above, p. 6). This practice had how- 
 ever been " much disused " so long ago as the time 
 of Sir Matthew Hale (see above, p. 18). 
 
 The following are some later examples (for cases of 
 appeal from Parliament itself see above, Chapter III. 
 P- 35 ) — 4 Hen. VIII. c. 8 ; 23 Eliz. c. xv. ; 16 Chas. I. 
 c. 14 (John Hampden's appeal concerning shipmoney) ; 
 2 Wm. & Mary, Sess. i, c. 8. 
 
 15. Expository Acts — to remove judicial doubts. E.g. 
 4 Jac. I. c. 12 (to expound the New River Act). 
 
 16. Acts to rectify or cancel Deeds. E.g. 11 & 12 
 
 Wm. III. c. V. (Hopwood's marriage settle- 
 ment). 
 
 These formerly met the case now provided for by a 
 rectification suit in Chancery. 
 
 17. Acts to dismiss vexatious proceedings in the 
 
 King's Bench. E.g. 4 Hen. IV. No. 14, R.Par. 
 
 p. 511. 
 
46 PRECEDENTS IN A GENERAL SENSE 
 
 18. Acts for making interlocutory orders in cases not 
 provided for at the time by the existing rules of 
 procedure. E.g. collusive proceedings set aside, 
 23 Hen. VI. No. 32, 5 R.Par. p. 106; correction 
 of record, 3 Hen. V. No. 17, 4 R.Par. p. 73 ; judg- 
 ment by default set aside, i Hen. VII. No. 61, 
 6 R.Par. p. 330; order for special jury, 7 & 8 
 Hen. IV. No. 125, 3 R.Par. p. 597. 
 
 19. Acts enforcing the execution of Trusts. E.g. 
 9 Hen. V. No. n, 4 R.Par. p. 151 (see above, 
 p. 3); I Rich. III. No. 17, 6 R.Par. p. 260. 
 
 This last-cited case is of special interest because 
 the interposition of Parliament is invoked upon the 
 equitable ground " that your suppliant hath no remedy 
 by the course of your laws." 
 
 20. Acts ordering new trial after verdict. E.g. 14 
 
 Ed. IV. No. 54, 6 R.Par. p. 160. 
 
 21. An Act of summary justice to deal with a case 
 of riot committed in the presence of the King in 
 Parliament. E.g. 3 Hen. VII. No. 27, 6 R.Par. 
 p. 402. 
 
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 THE JOURNAL OF THE SOCIETY OF COMPARATIVE 
 LEGISLATION 
 
 Published Quarterly. Demy 8vo. Jr. net. 
 
 New Edition for 1905 
 LAW WITHOUT LAWYERS 
 
 AN EPITOME OF THE LAWS OF ENGLAND FOR PRACTICAL USE 
 
 By TWO BARRISTERS-AT-LAW 
 
 Large %vo. Over 700 pages. Cloth extra. 6s. net. 
 
 LORD CHANCELLORS AND KEEPERS OF THE GREAT 
 
 SEAL OF ENGLAND 
 
 FROM THE EARLIEST TIMES TO THE DEATH OF LORD ELDON 
 
 IN 1838 
 
 By LORD CAMPBELL 
 10 Vols. Crown %vo. 6s. each. 
 
 CHIEF JUSTICES OF ENGLAND 
 
 FROM THE NORMAN CONQUEST TO THE DEATH OF 
 LORD TENTERDEN 
 
 By LORD CAMPBELL 
 
 4 Vols. Crown Svo. 6s. each. 
 
 London: JOHN MURRAY, ALBEMARLE STREET, W. 
 
3 1924 031 473 881 
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