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thesis entitled

COLLABORATION AND CONFLICT:

COMMONS, LORDS AND APPEALS FROM CHANCERY

presented by
STEPHEN CHRISTOPHER CHARNEY

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COLLABORATION AND CONFLICT:
COMMONS, LORDS AND APPEALS FROM CHANCERY

BY
Stephen Christopher Charney

A THESIS

Submitted to

Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER OF ARTS

Department of History

1993

 

ABSTRACT

COLLABORATION AND CONFLICT:
COMMONS, LORDS AND APPEALS FROM CHANCERY

BY
Stephen Christopher Charney

Historians of seventeenth—century England have
traditionally neglected the House of Lords as an aspect of
constitutional history worthy of study. Instead, the
Commons is the focus of their attention. This practice
derives from the tendency to focus on aspects of the English
constitution possessing the most relevance to modern times.

This investigation of one aspect of the Lords’
functions, the appellate jurisdiction over Chancery,
contrasts the arguments made in the secondary literature
with contemporary documents. The use of the Journals of
both Houses provides a means to understand the actual
dynamics of the appellate function of the Lords.

This study demonstrates that historians of the Stuart
period have left a valuable aspect of the English
constitution uncovered. The Lords revealed itself to be
resilient in a period in which many historians assume it to

have been in decline.

 

Copyright by
STEPHEN CHRISTOPHER CHARNEY
1993

 

TABLE OF CONTENTS

LIST OF TABLES . . . . . . . . . . . . . . . . v

INTRODUCTION . . . . . . . . . . . . . . . . . 1
Chapter
I. Necessity and Opportunity: The
Foundations for a Supreme
Court -- the 1620’s . . . . . . . . 25

II. The Appellate Jurisdiction of the
Lords: 1621-1675 . . . . . . . . . . 61

III. Court, Country and the Appellate
Controversy of 1675 . . . . . . . . . 101

IV. CONCLUSION . . . . . . . . . . . . . . 144
ENDNOTES C O O O O O O O O O O O O O O O O O O 1 5 0

BIBLIOGRAPHY . . . . . . . . . . . . . . . . . 173

iv

 

LIST OF TABLES

Table Page

1 Protests Against Danby’s Test . . . . . . . 113

 

INTRODUCTION

In the two short parliamentary sessions of 1675161
battle raged between the Lords and the Commons over the
right of the former to handle appeals from decrees given in

courts of equity.2 The Commons denied that the upper House

 

could legally exercise such a jurisdiction, though for the
previous fifty years the Lords had taken cognizance of, and
made judgments on, appeals from courts exercising an
equitable jurisdiction. This struggle between the Houses,
hindering the conclusion of legislative and revenue matters
and leading to two prorogations, effectively prevented a
successful conclusion to the business that Charles II and
the Earl of Danby had planned for those two sessions. In
the next session, of February 1677, however, something
unusual happened. After the lengthy prorogation of fifteen
months, the Commons, with no explanation, failed to revive
their challenge to this crucial element of the Lords'
judicial functions.

As a result of this victory the House of Lords had
comfortably established its position in the constitution as
the supreme appellate court of the nation for both the
common law and equity. The ostensible acquiescence of the

Commons to the Lords' appellate jurisdiction over decrees

2

from equity courts coincided with the historic jurisdiction

which the Lords possessed over appeals from common law

courts in the form of writs of error. It was only the

equity side of the appellate jurisdiction that was ever

challenged by the Commons. Though the Lords did not

consider in the session of 1677 the particular case that was i
at the center of the conflict over appeals from courts of

equity in 1675, Sherley g. Eggg,’the peers continued in

this new session to exercise their appellate jurisdiction

 

over courts of equity as if it had never been challenged.
This outcome was crucial to the viability of the Lords’ role
in the constitution. One contemporary member of the Lords,
Bishop Burnet, recognized the supreme importance of the
House's appellate jurisdiction to its function as an
institution, pointing out that in the second half of the
seventeenth century appeals from Chancery, “grew on by
degrees to be the main business of the house of Lords."‘
Though the immediate result of this struggle was
significant, this silent victory entailed more than a simple
justification of the Lords' appellate function, for it was
the last of a series of attacks by the Commons in the
seventeenth century on the constitutional role of the House
of Lords. These momentous episodes of constitutional
conflict have received curiously little attention from
historians of the era. This problem stems largely from a

much broader one: a lack of interest by scholars in the

3

House of Lords as an institution in general, in particular
in the period after the Civil War. Historians of the
Restoration period have chosen to ignore the fundamental
changes in the constitutional role of the Lords' House.5
They have devoted their attention to a seemingly more
pertinent but teleologically selected topic, the House of
Commons' progression to sovereignty. The historiography of
the Restoration period is narrowly focused on the relations

between the Stuart kings, Charles II and James II, and

 

Parliaments, which are typically discussed by historians in
terms of a single institution, the Commonsfi‘ They reflect on
the Lords only as a peripheral consideration, an institution
swiftly declining in importance after the upheavals of the
Civil War. Stuart historians, still heavily influenced by a
Whiggish set of priorities, have denied the House of Lords
agency, treating it either as an appendage of the Commons in
moments of opposition to the king or as a mere tool of the
king used to keep the Commons in order. In effect, the
House of Lords occupies a position in the historiography of
the Restoration period as a topic worthy of research and
study only when it provides insight into the growth in power
of the House of Commons and its supposed attempts to wrest
sovereignty from the monarch. Restricted to such a
perspective historians have neglected the struggle between
the two Houses in the period of the Restoration. It is

understandably not as attractive to most historians, as the

4

study of conflict between the king and the Commons yields
more material for explaining the present—day hegemony of the
Commons.

The true implications of the conflicts in the
Restoration period between the Lords and the Commons over
the Lords' functions call into question the viability of the
narrow focus of Stuart historians and mandate a reappraisal
of the actual relations among the king, the Lords and the
Commons. The narrow Whig approach to constitutional history
has resulted in the neglect of a monumental chapter in the
historical development of Parliament. The first fifteen
years of the Restoration period witnessed several vicious
struggles between the Lords and the Commons. These episodes
threatened the position of the House of Lords in the
constitution and their outcomes set the boundaries for its
subsequent development. The resolutions to these conflicts
also determined the limits to which the Commons would pursue
any further encroachments on the power of the Lords. These
defining outcomes were especially significant as they
resolved the situation of fluidity that had existed due to
significant developments in the constitutional position of
the HouSe of Lords in the earlier half of the seventeenth
century.

Corinne Comstock Weston has demonstrated how most
contemporary politicians and political thinkers of the

period just prior to the outbreak of the Civil War had come

 

5

to accept the primary role of the House of Lords as a
mediator, or barrier, between the king and the Commons, in
effect constituting the balancing element in the
constitution.’ Weston makes this suggestion of a mediatory
position of the Lords' House based primarily on its
legislative capacity. Just as fundamental to the Lords’
role in the constitution, however, was the acquisition of an
inchoate judicial capacity in the early Stuart period and
its subsequent development during the Civil war and in the
Restoration period. This time of fundamental alteration
constituted a turning point in the evolution of Parliament,
amounting to a monumental change in the English
constitution.

These changes marked the end of a long process of
evolution during the sixteenth and the seventeenth centuries
in the primary characteristics of the two Houses of
Parliament. The business inscribed in the Journals of both
Houses shows that the Lords and the Commons were becoming
more specialized in their functions in this period: their
particular roles in the constitution were becoming better
defined. The Commons investigated the grievances of the
realm, initiated legislation to remedy those grievances, and
granted supplies of money to the king. These functions
gradually became identified chiefly with the House of
Commons. The Lords, while playing a significant role in

these same activities, slowly modified their degree of

 

6

participation in comparison to the Commons, or adopted their
own methods to deal with the same problems, an evolution
that was especially noticeable after the Restoration. The
conflicts between the Commons and the Lords in the 1660's
and 1670's settled these changes. Through these conflicts
the Commons managed to monopolize the granting of revenue
and also to wrest the original jurisdiction over civil cases
from the Lords, placing this function in the hands of the

ordinary courts of common law and equity. These losses

 

altered the position of the Lords in the constitution. This
did not mean that the House of Commons had become a more
important institution in the functions of the state relative
to the Lords but that the distinction in the character of
the primary activities of the two Houses was better defined.8
The House of Lords after the episodes of conflict did not
become simply a junior legislative partner of the Commons
but firmly established itself as the supreme appellate court
of the nation for both the common law and equity. The
effect of what the Lords lost through their struggles with
the Commons in the Restoration period was mitigated by this
outcome, and they preserved for themselves a unique and
practical role in the constitution. This result, however,
would not have been so obvious to the peers in the upper
House in the Restoration period who were plagued by a
seemingly vindictive interference by the House of Commons in

what they perceived to be their domain.

7

One function of the Lords that the Commons challenged
in this period was the right to initiate and amend bills of
revenue. This power, however, was more nominal than
functional. Since the late fourteenth century it had been
the accepted rule for the Commons to initiate grants of
revenue, a custom that was acknowledged by Henry IV in 1407.9

That the Commons had the sole right to initiate such
bills, however, is difficult to ascertain.10 The Lords in
the seventeenth century rarely attempted to alter money
bills sent up from the Commons and when they did their
efforts were typically motivated by concerns of privilege, a
tenacious assertion of a claim to possess the right to
assess their own taxes and guide the collection of their
grants themselves. In the Restoration period the Commons
denied the right of the upper House either to initiate or to
amend money bills. Though the Lords initiated such bills
three times in this period, in 1661, 1665, and 1677, the
Commons stopped each attempt, reminding the Lords in each
case of the impropriety of their action. Attempts by the
Lords to amend money bills met the same fate after initial
success. In the Convention Parliament of 1660 the Lords had
amended several revenue bills without the protest of the
Commons.“1 This minor success soon turned into defeat. The
Lords' last successful attempt to amend one of the Commons'
money bills occurred in 1663, after which the Commons

forcefully applied their maxim that the Lords had no say in

8

the composition of revenue bills. The Lords unsuccessfully
tested this constraint until 1679.12

The other area of significant conflict between the
Commons and the Lords was over the judicial functions of the
Lords. While the House of Commons had won its victory
against the Lords over money bills relatively easily, the
struggle over the Lords' judicial powers was not only a
matter of more vicious conflict but also had a more
significant effect upon the course of the political events
of the realm. The conflicts over money bills did not
disrupt parliamentary proceedings to the same degree as
those relating to the Lords' judicial functions. The two
most significant attacks made by the Commons, that against
the original jurisdiction of the Lords over civil matters
and that against the Lords' handling of appeals from
Chancery, together led directly to four prorogations of
Parliament and effectively forestalled the successful
conclusion of vital government business. The Lords lost
their original jurisdiction over civil cases as a result of
their struggle with the Commons over Skinner 1. East lflélé
Company from 1667 to 1669. Several years later, however, in
the case of Sherley y. Eggg in 1675, the Lords preserved
through a tremendous effort the other element of their
judicature that was challenged by the Commons, that of the

appellate jurisdiction over decrees given in courts of

equity.

9

These judicial struggles were part of a process of
change which can be discerned as commencing in the earlier
half of the seventeenth century, one that left in the Lords'
hands a large variety of judicial powers in addition to the
primary judical roles they had historically maintained, the
trial of peers and those who violated the privileges of the
House, and a nominal jurisdiction over writs of error. The
forms of judicature that they subsequently exercised in the
early seventeenth century included judgment in impeachments
originating in the Commons, an original jurisdiction over
both civil and criminal cases, an appellate jurisdiction
over cases from courts of equity, and a transformation of
the nominal jurisdiction over writs of error into an actual
jurisdiction. This broad acquisition of judicial authority,
commencing in 1621, was supported by leading members of the
Commons, including Coke and Noy, and by certain Lords, who,
through citation of precedent, both correct and incorrect,‘3
linked the House of Lords to the curia regis (and other
institutions) of medieval England, which had possessed an
amorphous jurisdiction over all sorts of matters, including
petitions for justice.“ In 1621, the Lords began to
exercise a jurisdiction that was similarly broad. At least
one historian has recently noticed the similarity of the
Lords’ jurisdiction as it had developed in the 1620's to

that of the old curia regis.”

 

In the period from 1621 until the final settlement of

 

10

their judicial powers in 1675 the Lords redefined their
primary role in the constitution. Though still a
legislative body, the House of Lords had become a judicial
body with a somewhat amorphous jurisdiction. Its judicial
functions began to develop at the same time as the
occurrence of an increasing recognition by lawyers and
members of both Houses of serious problems in the English
legal system. The two circumstances, however, as will be
seen, were far from coincidental. The appropriation by the
Lords of a significant judicial role was not the result of a
sudden or dogmatic seizure of power but the logical outcome
of the changing character of the two Houses in the
seventeenth century and the contemporary conditions of the
judicial system of the realm. The central purpose of the
acquisition of a judicial role by the Lords was bent on
solving the problems raised by corruption and the slow
process of justice in the legal system and the inability to
effect an adequate means of relieving grievances of a legal
nature created by that system.

In spite of the increasing differentiation of the roles
of the Commons and the Lords in the Stuart period, both
Houses developed means in which they could address the
grievances of subjects. Herein lies the key to the
development of the judicial functions of the upper House and
the relationship that it occupied with the Commons. The

House of Lords, through its acquisition of a judicial role,

11

became a partner to the Commons in the redress of grievances
of a legal nature. The Commons in the early half of the
seventeenth century made several outright attempts to reform
the legal system through public legislation, the primary
goal of which was to give the individual subject the ability
to seek efficient and fair justice in both common law and
equity courts. Such grand manoeuvres, however, usually
found vehement opposition from the king, particularly when
the reforms involved Chancery. Early in the session of
1621, for example, ten bills were created by the Committee
for the Reformation of Courts of Justice of the Commons for
the expurgation of corruption from, and reform of, the court

16

system, particularly Chancery. This effort was preceded by
less grandiose, but equally challenging attempts to reform
Chancery in 1610 and 1614.17 That these attempts largely
failed testifies to the difficulty of reforming the legal
system for the sake of securing justice for all subjects.
Nor were the methods for achieving redress of grievances on
an individual basis any more effective. The Commons
investigated the complaints of subjects through several
committees in the early Stuart period, the chief of which
was the Committee for Grievances. This Committee
investigated the allegations presented in petitions from
subjects and would usually attempt to redress a grievance

through the use of a private bill. The petitions would

often ask the Commons for aid when an ostensibly unfair

12

decision was made in a court, even asking for help in
securing the reversal of that decision. Sir Edward Coke,
however, considered this process to be inefficient as an
ordinary means to secure the redress of grievances for
individuals.18 Private bills frequently were set aside to
take care of other business such as public bills and could
often be expensive to litigants due to fees.” A petition to
the king for redress, a means of avoiding the delays of
private bill procedure but one which lacked the force of
legislation accepted by both Houses, meant that the
resolution of the grievance would be subject to the king's
whims. The Commons thus ran into many problems in their
attempts to secure the redress of grievances through their
own means.

The Lords provided an alternative means for subjects to
secure redress. As a court, the Lords could handle
individual grievances in a fashion that the Commons could
not. The revived judicial powers of the Lords in the
seventeenth century gave them the ability to rectify the
grievances of individuals much more expeditiously than the
Commons.20 The judicial role of the Lords allowed them to
provide solutions to the problems of litigants without the
concurrence of the Commons or of the King. The upper House
had, in fact, become not only a court in its own right but
the highest court in the nation. As a result of the process

by which the Lords considered petitions asking for justice,

13

they came to share the role that had traditionally been
ascribed to the Commons alone, that of ”inquisitors of the
realm."21 The judicial role of the Lords provided a means to
solve what was one of the most significant problems in the
early seventeenth century, one recognized as such by Lord
Chancellor Ellesmere and Coke, ”slow justice."22 Problems
such as corruption, an overwhelming number of cases, and
jurisdictional conflicts between different courts hampered
the efficient process of justice. The Lords provided a
means of mitigating the difficulties of this situation,
giving subjects an alternate source of justice. The
Commons, in spite of attempts to acquire a judicial power
for themselves, as will be seen, were never able to
duplicate the judicial role that the Lords developed in the
seventeenth century.

This thesis will analyze the development of the use of
judicial authority by the House of Lords to redress
grievances from the perspective of the most perplexing
element of its judicial powers, the appellate jurisdiction
over decrees given in Chancery, and the subsequent struggle
between the Lords and the Commons over it. The other
instances of conflict between the two Houses were much more
explicable in motivation. The Commons had historically
perceived the grant of revenue as their peculiar function.
The key to this conflict on the part of both Houses was

privilege. For the Commons to consolidate their hold over

14

grants of revenue in the 1660's was nothing more than an
affirmation of a gg faggg right, though it was important
also to the Lords in terms of privilege. The other
significant matter of contention, the Lords’ original
jurisdiction over civil.cases, also has easily identifiable
causes. The Lords' original jurisdiction eventually became
threatening to the common law courts. Though the Commons
had ostensibly acquiesced to the development of this
jurisdiction in the early 1620's, they had done so when the
Lords had considered only cases of an unusual nature that
could not easily have been resolved in the ordinary courts
of common law or equity. Such a jurisdiction was not likely
to provoke outrage among the common law lawyers in the
Commons. During and after the Civil War, however, the Lords
came close to interfering in the ordinary process of the
common law, deciding cases that might have been brought
before the common law judges. The evolution of this
jurisdiction created a threat to the legal system that the
Commons, as will be seen, consistently displayed themselves
as adamant to protect. In the case in which the Commons
challenged the Lords’ original jurisdiction, Skinner 1. East
India Company, several members of the Commons were brought
before the Lords, creating a problem of a conflicting
interpretation of the boundaries of parliamentary privilege.
An analysis of the dynamics of this case, however, shows

that the primary concern of the Commons was the character of

15

the jurisdiction itself, although they were still concerned
about the privileges of their members. In addition, if this
function were taken from the Lords there was a ready
alternative, as the jurisdiction could immediately be left
to the common law courts.

The struggle over the appellate jurisdiction over
decrees from courts of equity, however, does not yield such
a simple explanation; its development and the subsequent
conflict over it are wrapped in mystery. As in Skinner, a
member of the Commons was involved in the case on which the
struggle over the appellate function focused, Sherley y.
Eggg. Unlike Skinner, however, there is little indication
that the Commons had any other basis for challenging the
Lords' appellate function. This aspect of the Lords'
jurisdiction in no way created a threat to the common law,
as the original jurisdiction had. In addition, the
development of this jurisdiction provides much evidence,
both direct and indirect, that the Commons supported this
jurisdiction of the Lords. NOthing substantive indicates
that the Commons had any real desire to remove this function
from the Lords’ House. No available alternative for the
Lords’ appellate jurisdiction existed in contrast to the
case of original jurisdiction, where jurisdiction could
immediately be transferred to the ordinary common law and
equity courts. In addition, after the episode of struggle

in 1675 the Commons made no further attempt to challenge

16

this aspect of the Lords' functions, although one would
expect them to have done so if they had been fundamentally
opposed to this jurisdiction; whereas in several instances
in which the Lords came close to exercising an original
jurisdiction after 1669, the Commons were vehement in
denying the right of the Lords to do so. The struggle over
Sherley g. Eggg does not fit into an easily explicable
scheme, as the other instances of conflict do. The House of
Commons had, in effect, little substantial reason to attempt
to abolish the Lords’ jurisdiction outright, though the fact
remains that it made such an effort in 1675.

The historiography of this period has provided only
inadequate explanations for this conundrum. The tendency
has been to rely on two untenable assumptions. The first of
these is a simple acceptance, characterized by the
teleological views expressed in the historiography of this
period, of the constant progression of the Commons, of the
belief that the House of Lords was listlessly allowing
itself to be victimized by the increasing power of the
Commons as a result of the peers' incapacity to handle their
own business and take their duties seriously. Many
historians consider the Lords to have been incapable of
handling the immense powers at their disposal, chiefly their
judicial functions, and have been accused of contributing to
this image themselves through both ”neglect and slackness."23

The second assumption, parallel to the first, is that the

17

House of Commons, jealous of all sovereign power outside
itself, desired to take powers away from the Lords without
considering the implications of its own actions. This
perception has particular bearing on the judicial struggles
because of the assignment of similar motivations to the
Commons' challenges to the Lords' original jurisdiction and
its appellate jurisdiction.

The scholars who have commented on the judicial
struggles have typically represented both episodes of
judicial conflict as facets of a general challenge to the
Lords' jurisdiction, in effect suggesting similar motives
for the attempts to abolish both the original jurisdiction
and the appellate jurisdiction of the Lords. Elizabeth Read
Foster, though pointing out that the Commons had acquiesced
in the development of the Lords’ judicature in the pre-Civil
War period, suggests that the Commons and the judges after
the Restoration simply decided to ”cut back the jungle of
jurisdiction" that had resulted largely from the turmoil of
the Civil War and thus attacked both the original and
appellate jurisdictions of the Lords.“ She does not suggest
that the motives for the attacks on the two were different.
Frances Helen Relf holds to the same basic contention as
Foster, that the protests of the Commons against the Lords'
judicature resulted from the general extension of the Lords'
jurisdiction during the Civil War.”5 Flemion offers a more

extensive explanation for the challenge of the Commons to

18

the Lords’ original and appellate jurisdiction, though
entertaining the same notion of a general opposition to the
two very different forms of judicature of the Lords. He
suggests that the Commons had originally supported the
acquisition by the Lords of the appellate jurisdiction,
though not of an original jurisdiction. However, according
to Flemion, the Commons quickly became disillusioned with
the incapacity of the Lords to handle both functions because
it subsequently interfered in the jurisdiction of the common
law courts. In effect, ”the fear that the common law courts
might be subordinated to this new tribunal came to outweigh
the abuse of slow justice in their minds, and members of the
house of commons attempted to remove from the upper house

('26

all judicial functions. All three historians entertain
the notion, which seems to me basically inaccurate, that the
Commons saw both elements of the Lords' judicature as
dangerous and threatening to the proper course of justice;
they assume that the attacks made on the Lords' appellate
and original jurisdictions had similar motives.

One of the keys to understanding the difference between
the two, which the above interpretations do not take into
consideration, is unrelated to the simple category of
constitutional opposition. This is the unusual political
context in which Sherley y. Eggg was broached and the

appellate jurisdiction of the Lords was challenged. The

struggle took place at that extraordinary moment in the

19

Restoration period in which an opposition in the upper House
was forming under the Earl of Shaftesbury. There was an
opposition in the House of Commons also, though
circumstances suggest that its members were not controlled
by or directly connected with Shaftesbury's group in the
Lords; they possessed similar aims but different methods for
pursuing them.27 A. S. Turberville suggests, in reference to
the struggles between the two Houses in this period,
particularly that over Sherley y. Eggg, that ”[t]he issues
are exaggerated and distorted by a passion which is
sometimes being industriously fomented for ulterior
purposes."28 Turberville claims that Shaftesbury, in his
opposition role, exploited such opportunities of conflict
between the Houses.”

Though this struggle took place before the infamous
Exclusion Parliaments of 1679 to 1681, a potent opposition
party under Shaftesbury was apparent as early as 1675, when

it focused its hostility on the Earl of Danby, the Court,

and the Anglican policies associated with them. The
impatience of Lord Keeper Finch with the difficulties
resulting from the struggle between the two Houses and his
recognition of the efforts of an Opposition to pursue its
own agenda were apparent in his plea, ”Away with those ill-
meant distinctions between the Court and the Country...."30
Shaftesbury's encouragement of the upper House to fight for

its jurisdiction against the Commons is apparent in his

20

conduct in the conflict, for he often took the lead in
defending the jurisdiction of the Lords. In 1675 he warned
of the danger to the Lords in the struggle with the Commons
by telling the Lords that ”this Matter is no less then31
Your whole Judicature, and Your Judicature is the life and
soul of the Dignity of the Peerage of England, you will
quickly grow burdensome, if you grow useless...."32
Shaftesbury’s vehemence in defending the Lords’ appellate
function may have been spurred on by the political struggles
of this period. There is evidence that Shaftesbury used the
conflict over the Lords' judicature to advance his own
goals. Bishop Burnet, in fact, referring to the case of
Sherley y. Eggg and the struggle that it caused between the
two Houses, claimed that ”Lord Shaftesbury said, it was laid
by himself.”33

The crisis may have transpired at a particular moment
because of the work of Shaftesbury, but why was this
particular matter used by the opposition to disrupt
parliamentary proceedings? Why was this issue so successful
in doing just that? The question is whether there was a
genuine opposition in the Commons to the Lords' jurisdiction
over appeals, and the controversy created by Shaftesbury
simply provided a pretext to challenge it, or an opposition
in the Commons to the Lords’ jurisdiction merely resulted
from a question of privilege blown out of proportion,

leading to calls for the abolition of the Lords'

21

jurisdiction. I will argue that the conflict in 1675 over
the Lords' appellate jurisdiction was due primarily to the
dynamics of the Lords’ consideration of the case of Sherley
y. Epgg, and also of two other cases presented in the same
session involving members of the House of Commons, Stouqhton
y. Onslow and Cripgs y. Dalmahoy. This thesis argues
against the suggestion that the struggle over the Lords'
appellate function arose from factors directly related to
the historical development of this power. Instead, I will
demonstrate that the conflict had little to do with a
general hostility between the Commons and the Lords over the
judicial functions of the Lords, an interpretation that,
although incorrect, could easily be derived from the
occurrence of other instances of judicial conflict between
the two Houses in this period, particularly that over the
original jurisdiction of the Lords. Several circumstances
suggest that the dispute over the appellate function of the
Lords over decrees from equity arose simply from the
particular aspects of the cases and the context in which
they were considered. In effect, the struggle over the
three cases involving members of the Commons was motivated
primarily by questions of privilege, and only secondarily
turned into a heated struggle that led to calls from the
Commons to prohibit the Lords' jurisdiction over appeals
from Chancery and other courts of equity. Before the

consideration of these cases there is no indication of a

22

significant opposition to the Lords' appellate jurisdiction
from members of the Commons in the entire period from 1621
to 1675. What will be demonstrated, however, is that in the
Stuart period in general, and in the Restoration period in
particular, both Houses were becoming more protective than
they previously had been of what they considered to be their
privileges, the scope and definition of which changed
frequently. This is a key to understanding the struggles
between the two Houses in the Restoration period.

This thesis, in sum, will argue that the struggle over
the Lords' right to handle cases of appeal from Chancery and
other courts of equity was due primarily to the immediate
context of the three cases, especially the manipulation of
Shaftesbury, and not to an opposition of the Commons to the
House of Lords' judicial powers in general or to their
jurisdiction over appeals from Chancery and other courts of
equity in particular. The House of Commons had, throughout
the course of the evolution of the Lords' appellate
jurisdiction, shown itself willing to accept the necessity
of the Lords' handling of cases of appeal from courts of
equity. Even in the Restoration period the Commons had not
contested the right of the Lords to handle any particular
appeal from Chancery, though in the case of Slyngsby y. Hglg
in 1670, wherein Hale was a member of the House of Commons,
they reminded the Lords to be cautious about the privileges

of the Commons.“ What the members of the Commons would not

23

suffer was what they perceived as a violation of their own
privileges; and it was only in 1675 when the opposition
Lords under the leadership of Shaftesbury pressed their
fellow peers to maintain their House's right to handle cases
involving members of the Commons in times of Parliament,
that the Commons challenged the right of the Lords to handle
appeals from Chancery and other courts of equity in general.
If, before then, particular members of the Commons were
opposed to the consolidation and refinement of the Lords'
jurisdiction over appeals from Chancery, such a feeling did
not extend to the majority, or else the Commons would have
contested this jurisdiction at a different, more opportune
time, which they did not. This thesis will demonstrate that
factors other than the character and the growth of the

Lords’ jurisdiction over cases of appeal from Chancery and
other courts of equity supplied the reasons for the struggle
in 1675.

To accomplish this goal I must consider the views and
actions of both institutions of Parliament, not focusing
solely on the Commons, the priority of Whiggish historians,
nor dealing with the Lords as an anomalous institution that
needs to be treated separately. A chief aim of this thesis
is to understand the dynamics of the interaction between the
two Houses in this period. In the process this analysis of
an episode of conflict between the Commons and the Lords

will suggest that investigation of the relations between the

24

two Houses in the Stuart period is crucial to an
understanding of the significant constitutional changes of

this period.

I. Necessity and Opportunity:

The Foundations for a Supreme Court —— the 1620's

In 1621 several developments occurred that had
significant implications for the evolution of the judicial
capacity of the Lords' House, including the future
controversial appellate jurisdiction over decrees from
equity. The Lords handled more in 1621 than just
impeachments, the only aspect of the Lords’ judicial
capacity that has received significant attention from Stuart
historians.1 Parliamentary historians have largely
neglected the other judicial developments of this year,
though one, Flemion, has pointed out that the judicial
developments of 1621, including that of the appellate
jurisdiction, amounted to ”the greatest expansion of
constitutional authority for the upper Houses since its
inception.”2 In 1621 the Lords began to hear civil cases
initiated by petitions asking for justice that had not been
decided in the other courts of the realm, a practice that
amounted to the assumption of an original jurisdiction.
This creation of a jurisdiction over civil cases of the
first instance was accompanied by the acceptance of an
original criminal jurisdiction over commoners in matters
unrelated to the privileges of either House, which was
unlike impeachment in that it was not initiated on the

formal complaint of the Commons.

25

26

For the judicial role of the Lords as it stood in 1675,
after Sherley y. Epgg, however, the most significant
judicial developments of the 1620's were the revival of the
upper House as the chief appellate court of the nation for
the common law," and the creation of a foundation for the
development of the Lords' appellate jurisdiction over
decrees from equity. The resumption of the appellate
jurisdiction over writs of error was relatively automatic
and unquestioned by either the king or the Commons. The
practice and historical justification for handling these
writs, however, though lacking controversy themselves,
contributed to the development of the other, more
controversial half of the Lords' appellate jurisdiction:
that over courts of equity. The appellate function
expressed in the handling of writs of error supplied a
precedent that did not go unobserved by those who wished to
create a means to appeal decrees given in courts of equity.

The appellate function of the House of Lords in regard
to the common law courts was well established, dating back
to the fourteenth century”iand recognized as one of its
particular characteristics.’ 'The year 1621, however,
reestablished its actual jurisdiction over appeals from such
courts, which had become largely nominal over the course of
the previous century. The Lords were nominally the court of
last resort, after King's Bench and the Exchequer Chamber,
for a litigant who believed that his or her trial in a
common law court was unjust as a result of an error in the

handling of the case. The common law courts did not allow

27

for the rehearing of a case if a litigant wished to appeal a
decision.6 .A litigant could receive a writ of error only for
”errors in law based on the record..."7 The Lords received, as
far as the Journals indicate, only five writs of error
between 1514 and 1589.“ The exercise of this judicature had
become almost non-existent after the court of Exchequer
Chamber was created in 1585. No writs of error were recorded
as being brought before the Lords from 1589 to 16213 In
1621, however, the Lords began hearings on writs of error
again. Though only four writs of error were brought before
the Lords in the 1620's,10 twenty—six were brought before
them from 1640 to early 1646,11 328 from April 1646 to
December 1648,12 and forty—nine from June 1660 to November
1675.13 Thus, the Lords had reclaimed a part of their
appellate jurisdiction that had fallen into disuse.

The Lords' appellate jurisdiction over the common law
courts, though latent in the early seventeenth century, was
not forgotten, most particularly by Coke, who cited it in
conference with the Lords to encourage them to participate
in the impeachment of Giles de Mompesson. It supplied a
convenient precedent for the Lords to exercise an appellate
jurisdiction over cases from equity courts. If they
exercised an appellate jurisdiction over the common law
courts, it would not have been difficult for them reason, or
to be convinced, that they had the right to exercise a
similar jurisdiction over courts of equity. The inception of
a rudimentary jurisdiction over appeals from Chancery and

other courts of equity occurred at a time in which many,

28

especially members of the House of Commons, were frustrated
by the type of justice that could be secured in Chancery,
the chief court of equity. The Commons made an effort to
relieve some of these problems but was forced to recognize
the limits on its ability to offer relief, especially the
inadequacy of the methods of appeal from decrees made in
Chancery. I will suggest that certain leaders of the
Commons, in cooperation with an opposition element in the
Lords, encouraged the rudimentary system of review over
appeals from Chancery that the Lords began to develop in
1621. The House of Commons, understanding the necessity of
such a jurisdiction, welcomed its further development.

This suggestion, however, is problematic, for it is
impossible to demonstrate with positive evidence that the
Commons recognized the Lords' jurisdiction as legitimate or
even as the best way to handle the problems that they
observed in Chancery. There exists no outright declaration
from the Commons or from the king approving of the
development or growth of the appellate function of the
Lords. Instead, my case will be based largely on evidence
of either a suggestive or a negative nature. The first
suggestive piece of evidence is that the Commons clearly
recognized that the Chancery, because of several defects,
especially the lack of an adequate means of securing an
appeal from it, did not adequately give justice to litigants
in cases tried before it. A second circumstance is that the
Commons recognized that they could not effectively take care

of the problems themselves, though they made attempts to do

29

so. The most significant piece of evidence is largely
negative: the lack of dissent from the attempts of the Lords
to handle appeals from Chancery in the 1620’s. As the next
chapter will show, this state of affairs lasted until 1675.
This absence of opposition to the Lords’ appellate
jurisdiction is seen in its true significance when one
considers the general tendency of the constitutional
manoeuvrings of this period. The king, Lords, and Commons
in the seventeenth century showed themselves very quick in
attacking innovations that they thought detrimental to their
positions in the constitution or to their privileges. Both
Houses of Parliament formulated stricter definitions of
their privileges, many of which had been assumed to exist
earlier, some extending back into the medieval period. For
the Commons, the most important of those defined in the
early seventeenth century were their jurisdiction over
contested elections to their House, their freedom from
incarceration while Parliament was sitting, the right to
debate freely, and the right to organize the business of the

House.”

Over the course of the seventeenth century, these
privileges were challenged quite often, particularly by the
king, who saw them as infringements on his prerogative. In
1621, when the Commons claimed their privileges as rights
that were inviolable, James retorted that their claim was
unfounded and that what they considered to be their
privileges by right came “from the grace and permission of

himself and his ancestors;...for most of them grow from

precedents, which shows a toleration rather than an

30

1'15

inheritance. The Commons, very jealous of their
privileges, did not accept the validity of this statement.
Yet in the 1620’s they were not as successful in defending
their privileges as in the Restoration period, as will be
seen. In 1629, for example, several members of the Commons,
John Eliot, Denzil Holles, and Benjamin Valentine, were
arrested for attacking the Speaker of the House in order to
prevent him from adjourning the Commons. The Commons,
though angered, could do nothing to defend their privilege
of freedom from arrest during the sitting of Parliament
until 1641, when it declared that the arrests of the three
members amounted to a violation of privilege.16

The Lords also were very cautious about defending what
they saw as their privileges and had some difficulty
defending them against the prerogative of the king in the
early Stuart period. They possessed the same privileges as
the Commons and more, including the right to be tried by
their peers. In 1621 they had John Selden and William
Hakewill investigate and compile a record of their
privileges.17 One that was important to the Lords, and which
they had difficulty in persuading the king to recognize, was
the right of a peer to be summoned to Parliament. In the
medieval period magnates who had been summoned to one
Parliament might not be called to the next. In 1626, when
the Earl of Bristol was not summoned to Parliament, the
Lords' Committee for Privileges, established in 1621,
declared that as a peer he had a right to sit in the Lords.18

While in the early Stuart period concern over privileges was

31

caused chiefly by the fear that the king might violate them,
in the Restoration period problems over privilege had an
increased bearing on the relationship between the two
Houses. Even in the 1620's, however, there were instances
in which jealousy over privilege caused problems between the
two Houses.

Jealousy over privilege was clearly displayed by king,
Lords, and Commons in one significant judicial innovation in
this period. In trying Floud the House of Commons was going
beyond the traditional boundaries of its jurisdiction over
those who violated the privileges of the House. Floud had
not done anything that would have placed him within the
Commons' jurisdiction. After the Commons' trial of Floud,
the king contested the right of the Commons to exercise an

19

original jurisdiction; the Lords also protested,
complaining that the Commons' action “doth trench deeply
into the Privilege of this House, for that all Judgments do

”20

properly only belong unto this House. The Commons
responded by affirming their own right to act as a court,
representing this as one of their own privileges, though
they acquiesced in surrending this particular case to the
Lords. The concern of the king, Lords and Commons to
preserve their own prerogatives and privileges is a general
indication that, if a constitutional innovation occurred and
was allowed to take root, it was either supported by the
other elements or at the very least recognized as a

temporary necessity.

The Commons would have had good reason to support the

32

inception of the Lords' jurisdiction in 1621. As the chief
repository for grievances, the House of Commons was more
intimately aware than the Lords of problems with the justice
given in the courts in the early seventeenth century. Coke
claimed, ”Members of the House were inquisitors of the
realm, as coming from every part of it and being more
sensible of grievances than the Lords in the Upper House
were because they were once liable unto them."21 Before the
judicial innovations that made it worthwhile to petition the
Lords, it was to the Commons that English subjects
inevitably turned to with complaints of the legal system.

In their debates and their actions in 1621, members of the
Commons showed themselves very concerned about the quality
and fairness of justice that could be given in the court of
Chancery and other courts of equity and sought some way to
address these problems. It is not possible, however, to
uncover the reaction in 1621 of members of Commons to the
first instance of the exercise of an appellate jurisdiction
by the Lords. In 1621 the Lords took cognizance of only one
appeal, and this case may not have reached the attention of
members of the Commons at large. The lack of protest may
have resulted from ignorance of the case rather than from
approval of the Lords’ actions. What can be established is
that the Commons were looking for some means of dealing with
the problems inherent in the justice given in Chancery and
that the eventual development of the Lords' appellate
jurisdiction addressed some of their primary concerns.

Historians have investigated and interpreted the

34

over equitable justice as practiced in the court of Chancery
and the revival of the judicature of the Lords. She
suggests that the revival of impeachment and, by extension,
the Lords' handling of petitions asking for justice, both
original and appellate, were due to a struggle between the
common lawyers in the Commons and the system of equity.

[M]ost writers on the subject have considered

impeachment only as a political measure.

They have not recognized it as an effort to

restore to Parliament its place in the system

of courts which it had occupied in the

fourteenth century, or even more to put it above

the courts of equity which had superseded it.

Considered as such, the resumption of criminal

jurisdiction by Parliament as a whole goes far

to explain the assumption of civil (and even

criminal jurisdiction by the Lords

alone.“
Relf surmises that the common lawyers in the Commons, most
notably Coke, wanted the whole Parliament to have this
judicial role, though they came to realize the minimal role
that the Commons itself could play, especially after its
humilitating experience in Floud’s case, in which both the
king and the Lords denied it any judicature at all. Thus,
according to Relf, the leaders of the Commons, including
Coke and Noy, in conjunction with some of the opposition
members of the Lords, such as Lord Saye, worked to have the
Lords accept not only impeachments but also petitions asking
for justice, particularly those asking for appeals from

decisions made in courts of equity.“

Some elements of Relf’s suggestions, as will later be

35

seen, did have significance in regard to the development of
the Lords’ jurisdiction over appeals from Chancery and other
courts of equity. The problem with Relf’s analysis is that
she overemphasizes the degree of conflict between the two
systems of law, a tendency that is just as evident in the
writings of Holdsworth.25 William Jones, however, has shown
that, for the late sixteenth and the early seventeenth
centuries, the real conflicts among the courts of the
English legal system were internal: between the different
courts of equity and between the different common law
courts. The conflict between the courts of equity and
common law was relatively minor and ”the famous acrimony
between Common Pleas and Chancery, Coke and Ellesmere, was
no more than a surface conflict having little connection
with day—to-day practice."26

That there was reason for the common lawyers to be
suspicious of the court of Chancery cannot, however, be
denied outright. Evidence suggests that many aspects of
Chancery angered the common lawyers in the Commons,
particularly in the sense that it may have constituted a
rival to the common law. The equitable function of Chancery
had begun to develop in the fourteenth century, and it
emerged as a mature court in the fifteenth century“ and
provided a corrective to some aspects of the common law
courts of the time. In effect, courts of equity,

particularly Chancery, provided an alternative to an

36

increasingly ossified common law. By the fifteenth century
the particular path of evolution which the common law courts
had commenced to follow in the late thirteenth century had
resulted in the loss of their flexibility and thus their
ability to offer effectively justice to litigants. The
common law courts ”were disposed to pay attention to matters
of formality, to the wording of what was expressed in a
documentary transaction...."28 Courts of equity took
consideration of complaints that could not be adequately
resolved by the common law, and unlike the ossified common
law, paid heed to ”matters of substance,... [to] the
intention of the parties and to the methods used in arriving
at the arrangement."29 When the system of equity was firmly
established a significant development altered the process of
evolution through which the common law had been going,
providing the potential for rivalry between the two systems
of law. In the sixteenth century the judges of these courts
began to practice a sort of equity by starting to ”interpret
statutes, and to extend 'to general cases the application of
an enactment which, literally, was limited to a special
case.”30 Thus the potential for rivalry between the courts
of equity and those of the common law existed. Even if it
did not reach a crucial point of hostility, the growing
similarity in the types of cases of which the two legal
systems could take cognizance must have made both systems

wary of the jurisdictional encroachments of the other.

37

Several other circumstances suggest a possible animosity of
the common lawyers and the Commons to the justice given in
Chancery. Coke's actions as chief justice of King's Bench
in 1616 show a degree of conflict between the common law
courts and Chancery. One characteristic of Chancery that
Coke confronted as chief justice was the power of the
Chancellor to issue injunctions forbidding litigants to
pursue cases in the common law courts or preventing the
execution of judgments coming out of those courts. Coke, in
1616, declared that incarcerations by Chancery for
violations of these injunctions were not legal:31 James I,
however, rebuffed Coke and supported the power of the
Chancery to issue such injunctions, allowing the Chancellor
to continue such a practice.

We do will and command that our Chancellor or

Keeper of the Great Seal for the time being,

shall not hereafter desist to give unto our

subjects, upon their several complaints now

or hereafter to be made, such relief in

equity...as shall stand with the merit and

justice of their cause, and with the former

ancient and continued practice and presidency

of our Chancery. ”

Perhaps the Commons distrusted the justice given in
Chancery because the Chancellor, practicing an equitable
jurisdiction, was not restricted, as the common law judges
were in their decision—making, by the strict guidelines of

precedent. The ”procedural and jurisdictional" rules of

Chancery were well set by the turn of the seventeenth

38

century, but precedent never dictated the decisions that the
Chancellor could make; instead, he was to follow his own
judgment, not arbitrary guidelines.33 The Chancellor might
easily, as a result, be associated by those favoring the
common law and by disgruntled litigants with arbitrary
justice, an impression which may have been reinforced by his
intimate association with royal power. Those in the 1620’s
who were increasingly upset by the apparently arbitrary
actions of the king may have been irked that James
emphasized the role of the Chancellor, in his actions in
court, as “the dispenser of the King's Conscience."”

Aside from the potential for conflict between the
common law and equity in matters of jurisdictional and
substantive issues, however, members of the Commons raised
their voices about many more practical problems with the
justice given in Chancery. These concerned the House of
Commons because of the inadequate justice which Chancery
provided for litigants, who would often complain to the
lower House. The Commons envisioned their particular task
as the investigation of the grievances of the kingdom and
readily accepted petitions in 1621 and later through a
variety of committees, most notably the Committee for
Grievances and the Committee for Courts of Justice. In
these ways, the Commons took consideration of litigants'
complaints against the justice they received in all courts.

Flemion argues effectively that one of the primary concerns

39

of members of the Commons in this period was the slowness of
justice and that this concern was the chief reason they
searched for ways to reform the judicial system of England,
both the common law and equity.35

The process by which justice was given to litigants in
the court of Chancery justifies Coke's concern with slow
justice in that court; this was due largely to the amount of
business with which litigants were burdening Chancery and to
corruption. The work pouring into Chancery was more than
the staff could handle. In 1623 a member of the Commons
claimed that 35,000 subpoenas had been made out in a single
year; the actual number was closer to 20,000,“ but this was
more than enough to overwhelm the clerks and other officials
of Chancery, slowing down the process of justice. Many
cases went on for up to twenty years in Chancery as a
result.37 The House of Commons was also aware of abuse and
corruption among the staff of the Chancery. Extortion of

38

extra fees and bribes ran rampant, as perhaps could be seen
most dramatically in circumstances leading up to the
impeachment of Lord Chancellor Bacon in 1621: though that
action was motivated by political reasons, it was brought
officially for bribes he had received to render favorable
judgments in Chancery.

In the early 1620’s Chancery came under the eyes of the

Commons as a source of grievances that needed to be

rectified through the grace of the king or legislative

40

action. As a Parliament had not been called since 1614, the
number of grievances could easily have built up, which may
explain why there was such a large number of them in 1621.
One petition ”of manie grieved subiectes,” raised some of
the major problems with Chancery proceedings:

the tedious and chargeable proceedings in

the said Court, by leingth of Bills grounded

upon untrue Suggestions displeasing to god

the aucthor of truth, multiplicitie of

needles suites breeding referrences, charges

of reportes and many orders thereupon,

chargeable mocions excessive fees and other

intollerable dilatorie expences....”

In 1621 the Commons launched an attack on Chancery in
an attempt to deal with such problems. In fact, ten bills
were proposed in the Commons to reform the courts, with
Chancery as one of the primary targets.‘0 Edward Alford, one
of the foremost in devising ways of reforming the Chancery,
proposed ”[t]hat some heades may be drawn and shewed to his
Majestie of the Matters wherein we desire to be releived And
that afterwards a bill may be framed.“1 His and other
members' suggestions of what should be included in such a
bill largely centered upon the theme of preventing abuses in
Chancery and securing speedier justice for litigants. The
preposals for reform included:

Not to make iniunctions upon Motions without
heareinge. To cut off the length of suites,
which often tymes continue thirty yeares,
whereas by the Civill Lawe they showld not
be above three yeares, That all Decrees may

be finall in respect of the Courte itself....
To reduce the Fees of all Officers to a

41

certeynte.... No cause to be entertayned in
the Chancerie after Judgment at Common Lawe.”

Perhaps the most ambitious suggestion in this proposal,
however, called for some sort of court to handle appeals
from Chancery. In this proposal for a bill Alford suggested
that ”[f]or Reliefe against Erronious Decrees there may be
either a Commission of reveiwe, a Writt of Errour devised,
or some Court of Appeale erected.“3 1He introduced the bill
itself into the House on April 19, 1621 —- a ”Bill for
Review and Reversal of Decrees of Equity”“ though it was not
committed. His call, however, reflected one of the chief
problems with the court of Chancery, the lack of an adequate
method for dissatisfied litigants to appeal from the court.

In the event of an unjust decree the litigant seeking
to appeal from Chancery had few places to which to turn.
Though the litigant in a common law court could obtain a
writ of error to appeal to King's Bench, Exchequer Chamber
and then the Lords in case of an error in law, there was no
set hierarchy of appeal from the lesser courts of equity to
Chancery or from Chancery to a higher court where a decision
might be made final. The four established methods of
appealing a decree from Chancery all had drawbacks. The
litigant could petition the Chancellor or Lord Keeper asking
him to rehear the case before the original decision was
.enrolled.‘5 Because the same judge would be making the

decision, it was not likely that the dissatisfied

42

litigant would receive a different decision, unless the
Chancellor was willing to admit his mistake with the
original handling of the case. If the decision had already
been enrolled, the litigant could pursue his appeal through
a ”bill of review" asking the Chancellor to rehear his
case.‘6 In addition to the problem of the original judge
rehearing the same case, this process had another drawback.
The litigant was required to fulfill the dictates of the
original decree before the Chancellor would reconsider the
case, considerably slowing down the process of justice. In
addition, the litigant had to demonstrate that some
”technical irregularity” had occurred in the handling of the
case." The litigant’s third Option was to petition the
king, asking him to set up a commission to review the case.‘8
The fact that Chancellor was the keeper of his conscience,
however, may have made the king less inclined to aid in the
reversal of the decree. Also, the king’s preoccupation with
other, more significant business might delay the issuing of
such a commission. The unpopularity of this method is
indicated by the fact that only two appeals were handled
this way, both before 1640.‘9 The last course that a
litigant could follow would be to petition Parliament for a
formal Act that would overturn the decision of the court of
Chancery;50 this would likewise require the king's consent.
This path would also be time-consuming, for the two Houses

were often tied up in the creation of other legislation.

43

Several attempts to pursue this course in the 1620's and the
one effort to do so in the 1640's were not successful.51
Clearly Alford's proposal of 1621 addressed an obvious
need. For inexplicable reasons, however, it did not make
any progress. Alford was not alone in his recognition of
the need for a court superior to Chancery. Coke himself was
determined to establish Chancery below King's Bench,” even
suggesting, in one debate on the need to reform Chancery,
the possibility that there should be ”a writ of Error... in
King's Bench. For the Chancery [is] the Younger Brother of
the King's Bench.”” Alford made another proposal for a new
method of appeal from Chancery in 1623/1624: the Commons
should ”[c]onsider of two to be ioneyed in equall Commission
with the Lord Chancellour, or of a commission of appeale, or
of a writ of error in the Checker Chamber which wilbe a
meanes to avoyd Corruption and how ther maintenance may
arise.”“ On March 15, 1623 he introduced this proposal as
”An Act for Reversing, Altering, or Correcting, of erroneous
Judgments, Decrees, or Orders, in Courts of Equity, and for
better Preventing of the like in Time to Come."55 Though the
act was committed and recommitted, nothing came of it or of
a proposal of John Carvill in 1625 to create some means of
reviewing and correcting decisions of courts of equity.”
The reasons why the Commons did not accept legislative
proposals for the creation of a new court of appeal are

mysterious though veneration of tradition may have done much

44

to dissuade them from creating such a court. Horstman
claims that many Englishmen of this period did not welcome
innovations because of an idealistic belief in the
perfection of an ancient constitution.57 He demonstrates
that the ideal of the ancient constitution, the existence
sometime in the past of a government which functioned
perfectly, provided a standard to which many political
thinkers, especially members of Parliament, wished to
conform. The ideal led to the conclusion that any problems
with the contemporary government or the legal system were
due to straying from the original form of the ancient
constitution. In effect ”[h]istory set the standard to
which government should conform...."58 Such an attitude would
have led many in Parliament to search for solutions in the
past. There were, however, precedents for the creation of
new courts by Statute. An Act of Parliament had created the
intermediary court of appeal for the common law, Exchequer
Chamber,” by statute in 1585, because of a recognized
problem in the appellate structure of the common law system
at the time. Parliament was not in session as often as was
necessary in order to handle the number of writs of error
sent to it from King's Bench. Thus, legislation provided a
remedy to this problem.60 Statute had likewise officially
established the jurisdiction of the Council of Wales in
1536.61 Despite these relatively recent innovations,

demonstrating an ability and a willingness to alter the

45

legal system to secure more expedient justice, the Commons
did not take this demonstration of power to heart in
attempts to supply an appellate procedure from courts of
equity. It is likely, though, that the unwillingness to
innovate in regard to appeals from Chancery was due to the
fact that there already existed an institution, the House of
Lords, to which medieval precedents, whether accurate or
inaccurate in their bearing on the Lords, assigned such a
role, thus supporting the revival of an aspect of the
ancient constitution. The practical application of this
attitude to the development of the House of Lords' judicial
powers will be discussed later.

The House of Commons was doubtless not particularly
anxious to give the Lords the immense power entailed in such
a judicial role to the exclusion of itself or of an
independent body; nor was a large number of the Commons
privy to an effort to get the Lords to receive such appeals.
Those who were anxious to reform Chancery and find some
method of appeal, however, would have seen that there was no
other viable option. The Commons was acutely aware in 1621
of the difficulty of reforming a court that was so dear to
the king, especially as James was irritated with the
legislative attempts of the common lawyers in the Commons to
reform and place constraints on the Chancery in that year.62
In addition, in 1621, members of the Commons were forced to

recognize that they had little chance to provide by

 

46

themselves a method of appeal. This realization would have
derived not from any abstract consideration but from two
instances -— the cases of Mompesson and Floud -- from which
members probably would have concluded that, because of their
limited role as a judical body, they would be ineffective in
providing directly for appeals from litigants.“ At the same
time, in one petition, as will be seen, the Commons showed
themselves willing to exercise some sort of judicial power
over appeals to the exclusion of the Lords.

In several instances in 1621 the Commons considered
expanding their own judicial role: the case of Mompesson,
the petition of Pope for a reversal of his decree from
Chancery, and the trial of Floud. In the first and the
third instances the House of Commons was made to realize its
lack of status as a court for anything but its own
privileges, which was based on a lack of precedent; thus it
was not capable to take direct care of the judicial problems
of the nation. Subsequently members of the Commons probably
came to be convinced that the Lords provided the best
opportunity to achieve their goals of reform.

Mompesson's case in 1621 signalled the revival of the
medieval process of impeachment, which had fallen into
disuse two hundred years earlier. In this case, which
involved the question of illegal patents, the members of the
Commons were made aware of the weakness of their judicial

capabilities; though they wished to try Mompesson themselves

 

 

47

to the exclusion of the Lords they could not discover the
precedents to allow them to do so, for his crime was not a
violation of the privileges of the House. As Mompesson was
a member of the Commons, the lower House did have a certain
jurisdiction over him; but the only crime that they would be
able to try him for would be “an indignity to the House,"
and thus the only punishment that the Commons could have
given him would be to have him sent to the Tower.“ The
members of the Commons, however, were determined to find
some means by which they could inflict a harsher punishment
on him and searched for precedents that would allow them to
exercise a jurisdiction over his illegal use of patents.
Regrettably, such precedents could not be found. Coke
reported from the committee searching for them that ”the
opinion of the Committee is, that we must join with the
Lords for the punishing of Sir Giles Mompesson, it being no
offence against our particular House, or any member of it,

(’65

but a general grievance. Coke based his justification for
applying to the Lords' House for trial of Mompesson on
medieval precedent. He divided English judicature into four
distinct spheres. One of these areas assigned to the Lords
alone, ”Cogam Maqnatibus Solis,” a judicial role distinct
from the others. Though his purpose in coming before the
Lords was to convince them that they had the right to handle

the impeachment of Mompesson, the justification made by Coke

for this was exceedingly vague; in fact, he assigned to the

 

 

48

Lords an amorphous jurisdiction which could easily have been

applied to other areas of judicature. He claimed,

There is a necessity in this because else
justice will fall to the ground and the
Subject in some cases cannot be relieved.

As, suppose a judgment be given for the

King in the Kings Bench, there is no help for
this but a Writt of Errour which must be
brought before the Lords in the upper House of
Parliament. Now the King cannot be judge in
his own case, therefore it must be judged by
the Lords alone or not at all.66

The Commons accordingly applied to the Lords for the trial
of Mompesson, which constituted the revival of impeachment,

with the Lords exercising the judicial functions of trying

6?

and sentencing Mompesson. The king also indicated that he

recognized that the Lords possessed an historical right to
act as a court, whereas he suggested that the Commons had no

such role:

the lower howse have showed great modestye

in there proceedings and in their places

have proceeded as farr as they can in the
informacion for they are noe Court of Record
nether can give oath; it is you [Lords] that
have the power of Judicature....[Y]ou neede

not search presidents whether you may deale in
this business without the lower Howse for there
is no question yours is a house and a court of
Record. You neede not stick uppon it, for the
lower house, they are but a howse of customes and
orders and their house hath come from yours, for
though heretofore a long tyme since you were all
one house, yett uppon the division all the power
of the judicature went with your howse.68

In effect, through both their unsuccessful search for

precedents to support their own desire to exercise a

 

 

 

49

judicial power and the king's reminder, the Commons must
have been forced to realize that they lacked the historical
justification for a judicial role such as the Lords
possessed.

The recognition of their limited judicial powers,
however, did not absolutely discourage the Commons from
attempting to exercise direct methods to relieve disgruntled
litigants from decrees given in Chancery. Before and after
the trial of Mompesson the Commons considered petitions
complaining of the justice given in Chancery, sparking
legislation to reform that court. What is particularly
interesting, however, is that, after the discussions over
Mompesson, the Commons practiced, in one case, an appellate
jurisidiction to a degree that the Lords would not dare to
attempt until 1640. That the Commons considered the
possibility of setting themselves up as a means to reverse
decrees of Chancery is apparent in their acceptance of the
petition of Sir William POpe presented on April 6, 1621.“
Pope asked ”to be relieved against a Decree in the
Chancery....'*"’o The Committee for Grievances considered the
case on April 27. Though the members could not hear
testmony on oath, they still heard counsel for both sides.71
The Committee proceeded to consider the appeal on two
grounds: ”(1) Whether the Decree were a lawfull Decree. (2)
If it were unlawfull, howe it mightbe Redrest."72 The

prevailing opinion was that the Decree was unjust, and the

 

5O

decision that then had to be made was how to secure its
reversal. John Pym, a member of the Committee for
Grievances, set down three options considered by the
Committee: “(1) That the Decree was tobe avoyded by a
Bill....(2) That it might be done by Declaration of the
House....(3) To repayre to the Lords. They reverse errours
in the King’s Bench, why not aswell Decrees in the Chancery;
and by their sentence the Record may be razed and the Seale
taken off."73 The consideration of this final option
demonstrates that the Lords’ position as the final court of
appeal for the common law made it a logical choice, in the
minds of some members of the Commons, to handle appeals from
Chancery. It was, in fact, this third option that the
Committee for Grievances chose." This initial choice
reflects the positive attitude of the Commons on the
propriety of the Lords' possessing an appellate jurisdiction
over decrees from Chancery.

Apparently, however, a change of mind occurred, perhaps
out of jealousy of the Lords; for on May 1 the Commons chose

the second option, that of a Declaration

That the Howse thought it fitt the Decree
showld bee taken off the File And all
Exemplifications and Writts of Execution
upon this Decree to be browght in and
Cancelled. It was not dowbted but that
the Master of Rolls would Conforme himself
to that Declaration....75

This episode suggests that the Commons may have considered

 

51

themselves suitable to handle such cases, but the presence
among them of some who believed that they should proceed by
legislation indicates a preference for refraining from
fundamental innovations in the English judicial system.
Christopher Brooke of the Committee for Grievances claimed,
”We cannot reverse a decree but by an act.""‘.As was earlier
pointed out, this method of handling appeals proved to be
inefficient; securing redress through a private bill, the
first of the options listed by Pym, was a cumbersome process
that Coke saw as contributing to the slow process of
justice. That other options were considered, these others
not being typical of the known methods of securing reversal
of a decree from Chancery, demonstrates that many members of
the Commons recognized if not this problem, then other
significant problems with procedure by private bill. The
ultimate decision of the House, that the matter be taken
care of through a declaration of the House, shows that the
Commons believed that they possessed the power to deal with
the matter themselves. The original order of the Committee,
that it be referred to the Lords, indicates, however, that
there was a substantial number of the Commons in the
Committee for Grievances who believed that the Lords were
the most appropriate place to send such appeals. This may
have been connected to their realization that they had to
resort to the Lords to handle the case of Mompesson. The
Commons did not use this procedure again in attempts to
reverse decrees, perhaps because of the problems that arose

over the case of Floudl"7

 

 

52

Floud, a prisoner in the Fleet, was brought to the
attention of the Commons as the result of seditious remarks
he had made about the Elector Palatine and his family:"’ The
Commons tried Floud, exercising what amounted to an original
criminal jurisdiction. The House was subsequently subjected
to the humiliation of being denied a jurisdiction outside of
matters regarding its privileges by both the king and the
Lords. The king called into question the right of the
Commons to try and sentence Floud and pointed out to them a
decision of Henry IV, ”by which the then house of Commons
themselves are stated to have represented the judgments of
the parliament to belong only to the king and the lords.”79
The Lords cited the same dictate to the Commons and declared
that the Commons had exceeded their own legitimate but minor
judicial role, as the one being exercised in Flppg's case
"belongs unto the Lords."80 Floud was then taken to the
Lords for trial, convicted and punished.81 The Commons had
thus again been reminded of their limited judicial capacity.
It is possible that this forced members of the Commons to
realize that only the House of Lords could deal effectively
with petitions asking for review of decrees given in
Chancery and other courts of equity, for they were forced to
acknowledge the weakness of their own judicature -- "limited
to their own members and privileges" -— while recognizing
that ”the Lords... have a judicial power which ... [is]
absolute....""2

It is difficult, however, to demonstrate that there was

a direct connection between the Lords' development of an

 

 

 

53

appellate jurisdiction over decrees from Chancery and the
Commons' concern over problems with Chancery, particularly
in reference to appeals. In fact, the Commons in 1621, and
throughout the 1620's, still accepted the petitions that
they received asking for some sort of redress from decrees
of Chancery83 and sometimes proceeded to recommend to the
Lord Keeper that he rehear cases, which suggests that they
felt that they had a certain degree of jurisdiction over
decisions made in Chancery. A litigant who felt that the
judge of Chancery had treated him unjustly could petition
the Commons, and the Commons would consider whether the
charge was true. In the impeachment of Lord Bacon a
complaint received in such a manner served as an excuse for
the action taken against him. In one petition in 1624,
received by the Committee for Courts of Justice, that of Mr.
Grimesditch, a complaint was made against both the Lord
Keeper and the Registers of the court. The committee
decided that the Lord Keeper had done nothing wrong, but
that one of the Registers, Mr. Churchill, had committed an
injustice on a procedural matter. Grimesditch then offered
another petition, asking ”to have the Cause heard again, as

('84

before, super totam materiam. The House then issued an
order that Mr. Churchill should be brought before the House
and that there should be ”a Letter written by Mr. Speaker,
to the Lord Keeper, to have this Cause heard again, §QQ§£
tpppm materiam, as he shall think fittest.”” This procedure,
however, did not amount to an appellate jurisdiction, for

members of the Commons obviously did not consider

 

 

54

overturning the case themselves though they believed it

unjust, nor did the instructions given to the Lord Keeper
amount to an order -- it was a request. Aside from making
such requests for justice, the nearest that the Commons in

this period came to taking direct action to reverse decrees

 

in equity was through legislation. This method was
attempted several times in the 1620’s, including one bill in
1628 that went through two readings and was committed,86 but

all failed to pass. With certain modifications, the most

 

significant being in the late 1640's and 1650’s, these y
examples typified the Commons' actions in regard to appeals
before its challenge of the Lords’ handling of Sherley y.
Eagg. The House of Commons did not expand its role in
dealing with petitions asking for appeals from Chancery
because the Lords provided a more practical alternative.
There are some indications that the Commons did play an
indirect role in encouraging the Lords as an appellate court
for equity by tranferring petitions to the Lords. What has
been established so far is that the Commons recognized that
many problems existed in Chancery in this period and that
one of the more significant problems was the lack of a
sufficient method of appeal from that court. It has also
been demonstrated that some members of the Commons wanted to
rectify that problem by creating a new method of appeal.
The Commons through its Committees for Grievances and for
Courts of Justice typically handled petitions asking for
some form of redress from decrees, though it did not possess

the judicial power to reverse them. Flemion has suggested

 

55

that when the House of Commons recognized that it had no
such judicial power and saw, after the humiliation of
glppg’s case, that it would not be able to develop this
role, some members, most notably Coke, ”began to transfer
civil appeals to the upper house in an unofficial way."87
That the Commons did so is difficult to prove, though a
number of circumstances point to that possibility. One
particular order in the Lords’ Journals on April 26, 1621,
shows that individual members of the Commons, even before
the conflict over Elppg, sent petitions to the Lords for
action: ”A Petition being offered to this House by one of
the Lords, which Petition had been delivered to him by a
Gentleman of the Committee of the House of Commons, for
receiving of Petitions of Grievances, and preferred to the
House of Commons.”88 The Lords responded by stating that they
would accept no petitions presented in such a way; they must
be presented by the litigant himself or ”commended from the
House of Commons."89 On April 30, 1621, another petition was
presented to the Lords by the petitioners themselves.”o One
of the Lords discovered that this petition had already been
presented to the Commons. As Relf suggests, ”The natural
inference is that the men had addressed their petition to

the lords at the suggestion of that [Grievances]

committee."91 It is thus possible that the Commons

encouraged cases brought before it to be taken to the Lords,
where more effective action could be taken. Though the above
petitions did not deal with appeals from Chancery or other

courts of equity, their passage from the Commons to the

56

Lords demonstrates that some members of the Commons were
willing to send petitions asking for justice to the Lords
and that they recognized that the Lords either possessed
more of a right to handle such cases as a court or had more
power than the Commons to help the petitioners.

Yet, aside from the wishes and needs of the Commons,
the question remains of why the Lords would be willing to
act as a court in which the judicial problems of petitioners
might be solved. They had not readily accepted the Commons'
request that they handle the trial of Mompesson until James
had assured them that they had such a jurisdiction. In the
first few instances in which it was presented with petitions
asking for the reversal of decress from Chancery, the upper
House was very reluctant even to handle the petitions, let
alone to reverse the decrees. Even more important, it had
not truly concerned itself previously, as the Commons had,
in the redress of grievances. As stated earlier, the
Commons had a much stronger tradition of investigating the
grievances of subjects and seeking solutions to them. This
was particularly true for the problems concerning the
justice given in Chancery. There is some evidence, however,
that the Lords were also concerned about the matter. At the
same time as the series of bills for the reform of Chancery
were being considered by the Commons, legislation was
introduced into the Lords that was designed to speed up the
course of justice in that court. The draft of one act found
among the papers of the House of Lords, apparently never

brought up officially, as it was not even mentioned in the

57

Journals of the Lords, sought to reform the access of
litigants to the justice of Chancery. This was ” An Act
concerning days of hearing and orders in the Court of
Chancery and other Courts of Equity at Westminster.” ” This
draft act was designed to ensure that all cases brought
forth in courts of equity were to be heard within five days
after the last day of the term , and that ”all persons
interested [were] to have free access to the court during
the hearing of a cause.”93
The judicial role that the Lords soon acquired,
however, brought them to the position of actively redressing
the grievances of subjects. The question of why the Lords
accepted the amorphous jurisdiction that was apparently
being offered to them by both the king and the Commons
during the crises over Elppg’s and Mompesson’s cases has no
concrete answer. The Lords may simply have been convinced
through their acquisition of the role of judges in
impeachment proceedings that they had a right and/or an
obligation to handle the difficult judicial problems of the
nation. Flemion suggests that Coke’s statement to the Lords
about their right to judge Mompesson, cited above, was
designed the way it was, filled with ambiguity, in order to
convince the Lords that they possessed a right to handle
appeals from Chancery, and that he drafted it so loosely to
solve the problems he saw in slow justice in that court.“
Both Flemion and Relf have suggested also that there was a
small group of opposition leaders in the Lords who believed

that they could work the acquisition of the judicial powers

58

into the fulfillment of their own agenda. Flemion has
demonstrated that there existed in the Lords of the 1620’s
an opposition that was bound together by common ideological
interests, the lowest common denominator of which was ”a
deep and continuous desire to find a way to express their
disapproval of the thrust of Stuart government.“5
Accordingly this opposition championed certain causes
important to the prestige of the upper House. They hoped
that this agenda would increase their popularity and, hence,
their potential to expropriate for themselves the leadership
of the House. One of the issues pursued for this purpose
was the revival of the judicial powers of the Lords, which
would enhance the position of the House. Flemion suggests
that this was accomplished through the coordination between
opposition leaders in the Lords, such as Lord Saye, and the
opposition in the Commons.96 Relf accepts the same basic
interpretation of the two oppositions working together to
bring petitions into the Upper House, though she ascribes it
to a desire of members of both Houses to place Chancery
under Parliament97 whereas Flemion interprets it as a means
to strengthen the popularity of an a number of the Lords
opposed to the king’s policies. What can be surmised from
the character of the Lords’ actions in regard to appeals in
the 1620's is that there was a small group in the Lords that

was adamant about getting the Lords to accept petitions

 

 

59

asking for appeals from Chancery and that the most vocal of
these were among those who Flemion and Relf suggest belonged
the opposition. This coincidence will be explored in
greater detail in the next chapter, which investigates the
actual growth of the Lords' jurisdiction over appeals.

Like the Commons, and members of the Lords, the king
had a reason for supporting some means to secure another
method of appeal from Chancery. Horstman has convincingly
argued that James would have had good reason to welcome the
revival of the judicial role of the House of Lords,
particularly its appellate review of decrees from Chancery
and other courts of equity. He suggests that the king
allowed the development of the judicial role of the Lords
largely because he was burdened by appeals made to him for
justice: ”In cases involving non-common-law courts the king
was constantly besieged by litigants seeking help."98 Both
the Commons and the king recognized the medieval judicial
role of the Lords.

When one puts together what has been demonstrated -—
that there was a recognition of the problems in Chancery in
the 1621, that the need to secure an appellate process from
decrees of Chancery was one of these, that the historical
judicial functions of the Lords were recognized, and that
the Lords commenced hearing appeals from Chancery in the

1620's, its first being in 1621 —— a suggestion might

 

 

 

60

reasonably be made that the king and the Commons supported
the development of the Lords' appellate jurisdiction in the
early Stuart period. Moreover, as this chapter has shown
that the Commons would have had good reason to approve of
the inception of the Lords’ jurisdiction, so the next will
show that the Commons and the king did not oppose the
further development of the Lords’ jurisdiction. In the
period from the Lords' consideration of the first appeal
against a decree of Chancery until the consideration of
Sherley y. Eggg in 1675, the Commons did not question the
right of the Lords to handle such appeals and probably

looked favorably upon that practice.

 

 

 

The Appellate Jurisdiction of the Lords:

1621-1675

As I have demonstrated in the previous chapter the
House of Commons recognized the problems inherent in the
justice received in Chancery and was anxious to find some
alternate means by which litigants could appeal decisions of
that court. The Commons, concerned with slow justice, made
some unsuccessful attempts to supply this need, held back
by, more than anything else, their lack of a judicial power
with a historical foundation, something that the Lords
possessed. The king, perhaps not unhappy with the justice
given in Chancery, was nevertheless burdened by the many
appeals made to him from all sorts of courts, including
Chancery, and would not necessarily have resented some means
to reduce the pressure on him. Both institutions openly
admitted the rightfulness of the Lords acting as a court,
the Commons most explicitly in the case of Mompesson and the
king in that of Elppd. In addition, as will be demonstrated
in this chapter, a significant voice in the Lords was
adamant about accepting petitions asking for appeals from
decrees given in Chancery. The Lords, having a historic
judicial function recognized by both the king and Commons,

consequently possessed the potential to address the major

61

 

62

problems with Chancery and the appellate process for courts
of equity in general, though the manifestation of an
efficient appellate jurisdiction in the upper House was very
slow in coming: The Lords took the chance to reverse a
decree of Chancery for the first time only in 1640.

If the House of Commons had been opposed to the Lords'
jurisdiction over appeals from Chancery, which I have argued
it was not, it had a great deal of opportunity to make
objections to it in the period from 1621 to 1675, the period
in which this form of judicature evolved in both scope and
efficiency. However, from the inception of the Lords'
jurisdiction over appeals from Chancery in 1621 until
Sherley y. Epgg in 1675, there was little comment from
either the king or the Commons at all, still less in
opposition. The pace of the growth of the Lords'
jurisdiction, however, would certainly have raised
objections from them if they had opposed it. From merely
hearing pleas for justice from Chancery and offering
suggestions to the Chancellor in a rehearing of the case,
the Lords' appellate function evolved into a complete
appellate jurisdiction, in which the Lords actually set
aside decrees from Chancery and made orders on cases.

The growth of the Lords' jurisdiction over appeals from
Chancery can be divided into three stages. In the initial
phase, that from 1621 to 1629, the Lords' procedures in

handling such appeals were ill-defined, and the peers

63

appeared to be very hesitant in dealing with petitions
requesting them to reverse decrees of Chancery. Indeed, it
is very difficult to consider the Lords as possessing a true
appellate function in the 1620's, for they did not even
consider overturning any of the cases brought before them.
In this period, the Lords' jurisdiction over appeals was
basically the same as that possessed by the Commons, with
the exception that many members of both Houses in the 1620's
believed that the Lords possessed a judicial right based
upon historical precedent to review decrees of Chancery,
though the Lords did not immediately translate this
recognition into action. A complete change was evident in
the period starting in 1640, with the first Parliament
called since 1629, and ending with the abolition of the
upper House in 1649; here the Lords exercised a complete
appellate jurisdiction, overturning decrees, and acting much
surer of the propriety of its jurisdiction. In the third
phase, from 1660 to 1675, the Lords maintained the scope of
the jurisdiction that it had come to exercise in the 1640's
but also fell into conflict with the Commons over the
appellate jurisdiction.

In each of these phases until 1675 the Commons made no
serious objection to the Lords’ jurisdiction over appeals
from Chancery in particular, though there were minor
conflicts over matters of privilege and, from 1646 to 1649,

a gradually increasing opposition to the right of the Lords

64

to handle all judicial matters involving commoners. Aside
from the latter situation, neither the Commons nor the king
vociferously opposed the appellate jurisdiction of the Lords
unless it interferred directly with the privileges of

either. The Commons was unwilling to allow the Lords to
take cognizance of matters involving members of the Commons
without its acquiescence for cases of either an original or
an appellate character. This is evident, for example, in
the cases of Skinner y. East India Company (1669) Slyngsby
y. Hglg (1670), Sherley y. Eagg (1675), Stouqhton y._Onslow
(1675) and Crispes y. Dalmahoy (1675). The king protested
only when he perceived the Lords to be excluding him from at
least a nominal right to be treated as the supreme source of
justice, particularly in the instances of appeals from
Chancery.

The previous acquiesence of both the Commons and the
king to the Lords’ jurisdiction over appeals from Chancery
had apparently disappeared by 1675, the year in which the
Commons forcefully challenged the result of the half-century
development of this form of judicature. The Commons in this
year stated that the Lords had no right to handle appeals
from Chancery or any other court of equityfl' Even more
telling is the fact that the king made no effort in this
conflict to defend the jurisdiction of the Lords. It was, I
contend, the immediate context and character of the cases of

Sherley y. Fagg, Stouqhton y. Onslow and Crispes y. Dalmahoy

 

65

in 1675 that led the Commons and the king to behave in such
a way that it appeared that they opposed the jurisdiction
itself, though they did not. The conflicts over these cases
have led many historians, as pointed out in the
introduction, to suggest that the Commons throughout the
Stuart period did not support the appellate jurisdiction of
the Lords over decrees from equity. Investigation of the
three periods of the development of the Lords’ appellate
function and the Commons' behavior in regard to this

evolution will show that the opposition expressed by the

 

Commons in 1675 was an aberration that did not reflect its
true attitude toward this form of judicature.
Between 1621 and 1629 the Lords began to accept \
petitions asking for appeals of decrees from courts of
equity. In the 1620's, however, the Lords did not possess a
complete appellate jurisdiction over decrees from equity.
The Lords took cognizance of relatively few cases of appeal
from Chancery and other courts of equity, as compared to the
many petitions sent to them in the 1640's, 1660’s and
1670's. In the few cases of appeal that did come before the
House the Lords acted very cautiously. Two cases typify the
character of the Lords' jurisdiction over appeals from
equity in the 1620’s and also display the reactions of the
Commons and the king to the inception of the jurisdiction:
Boucher's case in 1621 and Mathewe’s case in 1624 and 1628.

The actions of the Lords in these instances make them

66

appear highly unsure about the propriety of considering
these cases, which suggests that they may have been
uncertain about their House's right to exercise an appellate
jurisdiction over Chancery. Aside from the manner of
handling these particular cases, however, the Lords'
attempts to set up rules governing how appeals should be
handled indicates that the Lords were well aware of the
propriety of their handling of appeals from equity. Rules
governing appeals were set up in the Parliament of 1621 in
coordination with guidelines regarding the rest of their
judicature, particularly for petitions asking the Lords to
exercise an original jurisdiction. The Lords seem to have
anticipated petitions asking for appeals before they
actually came before them. Whereas the Lords had accepted
for the first time a petition asking for the exercise of an
original jurisdiction on April 30, the first petition that
the Lords accepted that can be construed as an appeal from
Chancery came on December 3. In the interval the Lords
developed a means of dealing with private petitions asking
for justice. In establishing a standing committee to handle
petitions, the Lords demonstrated a growing recognition of
their role as a judicial body.

The first committee for dealing with all petitions
asking for justice and not for specific cases was
established on May 29, 1621..2 The practice of establishing

such committees at the beginning of each Parliament had

 

67

importance for the growth of the appellate function, as this
was where cases of appeal were soon to be turned over for
consideration. This committee made one particular order
that would be significant to the future method of dealing
with appeals from Chancery and other courts of equity, even
though the first such petition was not to be received until
several months later. The order creating this committee of
eight gave them the duty “to consider of all
petitions...exhibited to this House and unanswered; and to
report to the House what answers are fit to be made unto
them.”3 The committee, in its attempt to answer as many
petitions as possible before the upcoming prorogation,
established rules for the manner in which petitions were to

be considered. It reported that

they had considered of some Petitions,

and answered them, but, the Time not
permitting their Lordships to answer

them all, they had agreed what Answer

the Clerk shall make unto them, videlicet,

1. No suits to be stayed in Courts of
Justice, upon Pretence of Petition
exhibited in Parliament, and
unanswered.

2. Decrees not to be reversed upon Petitions
exhibited in Parliament, without the
Hearing of Counsel in both Parts.

3. Reviews to be made, where the Judges of
the Courts, upon Consideration of the
Petitions, shall find Cause sufficient;
if otherwise to certify the House what
further Course to be taken with the
Petitioners.‘

What is interesting is the second rule, which referred to

the reversal of decrees. There is no record in its Journals

 

 

 

68

that the House Lords had considered any appeals from
Chancery or other courts outside of the common law before
this order was made, though later in the 1620's they did
handle petitions concerning cases already heard in Wards,
Star Chamber, and church courts in addition to appeals from
courts of equity and writs of error from the common law
courts.5 Hargrave took note of this reference in the
committee’s report and observed that, although the Lords had
not yet heard such a case, they ”almost acted as if they had
appellate jurisdiction upon petitions.“i Perhaps, in spite
of the lack of a record of any such petitions in the
Journals, the Lords had indeed received such cases for
consideration, prompting them to devise this rule. At the
least, their second rule suggests that the Lords were aware
of the potential for handling such cases and also that they
felt that they had some right to receive such petitions.
The first recorded appeal from Chancery or any other
court of equity was introduced several months later. In
considering it, however, the Lords appeared somewhat
hesitant about accepting such a jurisdiction. This was Sir
John Boucher's petition, presented on December 3, 1621.7 It
was a complicated case that led to significant debate over
whether the Lords should accept the petition. Though the
Lords did not explicitly consider the possibility of
overturning the decree itself, the mere fact that they took

cognizance of the petition and debated the merits of the

 

 

69

appeal was promising for the future development of the
Lords' appellate jurisdiction. It is even more significant
that neither the king nor the Commons reacted to their
acceptance of this petition.

In his appeal Boucher complained about what he

 

considered to be an unfair handling of his case in Chancery.

 

He claimed that the Chancellor, Williams, who had replaced
Bacon in 1621 after his impeachment, had not allowed proper

time for all the evidence and witnesses in his case to be

 

considered. The form in which Boucher framed his petition I
caused confusion, forcing the Lords to reflect on the
propriety of accepting appeals from Chancery and other

courts of equity.

Now, for that it may tend to the utter

undoing of any man, to be shut by

Decrees before the Cause be fully opened or

understood, or to be bound by such as

are not duly granted;
The petitioner doth therefore, in
all Humility appeal unto your Lordships,
humbly desiring, that, as well for
Justice Sake and the future Good of
others, as the Petitioner’s Relief, your
Lordships will be pleased to hear and
judge the same.8

Was Boucher asking the Lords to punish Williams for his
unjust handling of the case, or was he asking the Lords to
review a case that he felt had been handled incorrectly? It
appears from the petition and his later actions that he

wanted the Lords to recognize the injustice he had received

at the hands of the Chancellor and provide him with some

70

sort of relief from an unjust decree. Such an
interpretation, however, was not forthcoming from most of
the Lords. The Lords’ initial reaction upon receiving this
petition was to debate its character and decide whether or
not they had a right to consider it. The debate indicates
that the Lords were more concerned about the implications of
Boucher's charge against the Lord Keeper than the case of
Boucher itself, though some were eager to confirm the
judicial supremacy of the Lords over Chancery. Those Lords
who were hesitant about considering the petition of Boucher
saw it not only as a serious charge against the Lord Keeper
but also as a potential problem for the judicial system. The
Archbishop of Canterbury echoed the concerns enunciated by
some members by posing the problem,

Whether to rejecte peticions for justice,

or to admytt of peticions generally against

all judges, which wyll much discourage them.

Moved that yf they agree he shalbe hearde,

he be admonished that he shall receive

greate punnishment yff the aspersion in the

peticion be not trewe.9
Another member raised very much the same dilemma, claiming,
”[I]f theis peticions be admytted, noe judge, &c. shalbe
free from aspersions."10 The Earl Marshal likewise was
against the acceptance of Boucher's petition for justice,
“for then noe ende of suytes."“‘ Thus, there was a

significant element in the Lords' House that was very

hesitant to accept the possibility of an appellate

 

 

 

71

jurisdiction which this petition raised. Apparently these
Lords, by their statements, saw the exercise of an appellate
jurisdiction by the upper House as something of an
innovation. The acceptance of a jurisdiction of this sort
might bring harm to the judicial system, and would therefore

be inimical to the goal of bringing about a solution to the

£37271; _ I

problem of slow justice instead of solving it.
Other Lords, however, thought that the House was the
proper place to send such petitions asking for appeals.

Those who were most adamant in encouraging their acceptance

 

were the same Lords who, Relf and Flemion suggest, were
among the opposition in the Lords. Lord Saye advanced the
claim that it was appropriate to send such petitions to the
Lords. Relf sees Saye as one of a number of the Lords who
were working in conjunction with the leaders of the Commons,
such as Coke, to revive the Lords as the chief tribunal of
the nation, using petitions asking the Lords for as their
vehicle.12 Saye was determined that the Lords should take
cognizance of Boucher's appeal. Though agreeing with the
others that Boucher should receive punishment if his charges
against the Lord Keeper were untrue, he claimed that there
was ”noe appeall from the Chauncery but hether...."13 He also

emphasized that Boucher's petition was ”an appeale,"” not

simply an accusation against the Lord Keeper. Lord Haughton

also supported this view of the Lords as the chief court

responsible for supervising the decisions of other courts,

72

calling the upper House the ”Supreme Court."” Likewise, the
Lord Keeper himself gave some recognition to the correctness
of viewing the Lords as the place where such appeals for
justice should be sent, though with a significant
qualification. He suggested, in reference to the Lords'
House, that ”Appeales doe lye, but not directly; firste to
the Kinge and then hither."16
The result of this debate was that the Lords decided

not to refer Boucher's petition to the Committee for
Petitions; instead, they sent it to the Committee for
Privileges, requesting them to consider ”whether it be a
formal Appeal for Matter of Justice or no?”17 The Lord
Chamberlain pointed out before this decision was made that
“the peticioner's cause cannot be hearde agayne, unlesse by
an appeale.” ” The report of the Committee demonstrates that
it was unsure what Boucher meant by his request for an
appeal, construing 'appeal' in its medieval usage as an
accusation. The Committee reported that

divers Lords of their Sub-committee (appointed to

search for Precedents) cannot find that the Word

”Appeal" is usual in any Petition for any Matter

to be brought in hither: but that they find that

all Matters complained of here were by Petitions

only; the ancient accustomed Form thereof being to

the King and His Great Council: And that they

cannot find but one Precedent of this Nature,

which was a Complaint by Petition, against

Michaell de la Pole, Lord Chancellor, for
Matter of Corruption.19

The Committee recommended that “the Matter of Fact

 

 

 

 

 

 

73

complained of be heard with Expedition, that so great an
officer may not long suffer in the Delay thereof."20 Thus,
the Lords did take cognizance of the petition, but they were
not as concerned with reviewing the decree against Boucher
itself as they were with the implications of the charge made
aganst the Lord Keeper.

The House accordingly heard the matter as if the
petitioner's intention was only to seek punishment of
Williams for a miscarriage of justice. In the process of
investigating these charges, however, Boucher pleaded to
have "a favourable Hearing of the Merits of his Cause."21
What the Lords would have done if they had found Boucher's
charges against the Lord Keeper true cannot be known. After
hearing witnesses to the process of the case in Chancery and
the Keeper’s behavior, the Lords decided that the charges
were inaccurate. Instead of simply dismissing the petition,
the Lords ordered that Boucher “should receive some Censure,
or Punishment..."22 The Lord Keeper, however, forgave Boucher
and requested that he not receive any punishment.23

Though the Lords did not consider the decree itself,
and Boucher did not receive the justice he had asked for, it
is important that the Lords took cognizance of the petition
and considered the propriety of considering such petitions
in general. That they showed some willingness to view
themselves as a court fit to handle such appeals is

confirmed by the fact that, on the recommendation of the

 

 

74

Committee for Privileges, they considered the charges made
in the petition, though whether or not they would have heard
the merits of the case if the Lord Keeper had been found
guilty of the charges Boucher had made is difficult to
discern.

Neither the Commons or the king reacted to the
willingness of the Lords to consider Boucher’s petition
despite good reasons for them to be troubled by this
occurrence. The Commons, had defined their own
participation in the judicial system of England based on
what they saw as their primary role, as investigators of the
grievances of the realm, a role they had established over
the course of several centuries. In the two-step process of
impeachment, for example, they investigated grievances and
made accusations which they submitted to the Lords who, in
turn, made the judgment. As Boucher did not submit his
complaint to the Commons, many of its members might have
felt that they were being neglected in their role as the
investigator of grievances, supplanted in this function by
the Lords. When the Commons had attempted to go beyond the

scope of their judicature in the case of Floud they were

 

humiliated by both the king and the Lords who denied their
right to an original jurisdiction unrelated to their
privileges. After such a revelation of the weakness of
their own right to act as a court, they would have been

adamant about defending the small degree of participation in

 

- "'

 

' x‘

75

judicature that they did possess. Boucher’s case, which
could easily have been perceived by members of the Commons
as a criminal accusation made against a high official of the
king, the Lord Keeper, could have provoked jealousy if the
Commons had not perceived the Lords' actions as serving a
more important need. If Boucher’s intention was to seek I
some form of punishment for the Lord Keeper because of his
unjust measures, he was ostensibly violating the Commons'

position as investigators of grievances. On the other hand,

 

if the Commons did not perceive the petition in this way, as l
a criminal accusation, they may have viewed it as
constituting an appeal from a decision made in Chancery. If
the Commons denied the right of the Lords to handle appeals
from equity in 1675 then why did they not raise the same
objection in 1621 in Boucher’s case ?

It is even more remarkable that the king did not
complain of the Lords exercising such a jurisidiction,
though whether this was due to his recognition of the
propriety of the Lords' jurisdiction, to the special nature
of the case, or to the cautiousness of the Lords in
considering it, is hard to tell. As has been mentioned
before, James was very protective of the jurisdiction of the
Lord Keeper, as he possessed the king's conscience; and he
had thwarted attempts by the Commons to place controls on
the jurisdiction of the Lord Keeper in 1621. Why did he not

react to the statements by many members of the Lords, and

76

their actions, and attack their willingness to review the
process by which the Lord Keeper had made a decision? James

could easily have been informed of the proceedings of the

 

 

 

 

 

 

 

 

 

 

 

Lords through Lord Keeper Williams and thus would have had
the opportunity to object to the actions taken on the

appeal, if he had so desired. It is likely that neither the ,
king nor the Commons objected to the proceedings of the F

Lords in regard to the case, although both might easily have a

 

perceived their privileges as being violated, because they }

 

recognized the need for some means to take care of the b
problems inherent in the procedure of the courts of equity.
After the experience of this case, the Lords continued
to practice an appellate jurisdiction that was somewhat
similar to that seen in the Commons' consideration of
petitions throughout the 1620's. As the decade progressed,
however, they became more forthright in the orders which
they made on such cases, though they never reached the
position in which they actually overturned a decree. That
they went as far as they did owes much to their historical
relationship with the king’s small council, which was
incorporated into the Lords' House. The practical judicial
benefit that came out of this inheritance was the presence
of the chief judges of the nation in the Lords’ House,
particularly the Lord Keeper/Lord Chancellor as the
presiding officer of the Lords. The other judges of the

chief courts were usually present in the Lords House not as

77

full members but as assistants called to the Lords at the
beginning of Parliament by Epigg pf Assistance.“ Thus a
petition could easily be referred to the judges who would
have cognizance of the case if the Lords saw problems with
the original decision or if the case had not been decided.”
As a result of this judicial inheritance the Lords were I
in a good position to refer cases, either original or
appellate, to the Lord Keeper or Chancellor. The Lords
showed themselves inclined to refer petitions asking for

justice that had yet to be considered by any court, and were

 

fit for an equitable solution, to the Lord Keeper.
Recommendations would be made in the Committee for Petitions
and then approved by the whole House. In 1624, the Committee
for Petitions reported on ”the Petition of James Barley,
Esquire, who complains, ’That Rowland Eare had defrauded him
of the Manor of Barley, and of divers other Lands of great
Value.’”26 The recommendation was that it be ”referred to
the Lord Keeper.”27 This procedure was also used for those
who desired a rehearing of a cause already heard in
Chancery. One such petition was that of Richard wright,
”who desired that he may be heard upon the true State of his
Cause (formerly determined by the Court of Chancery), before
whom their Lordships shall appoint."” The Lords’ response to
this case was,

Their Lordships think it fit, that the

Consideration of this Petition be

commended to the Lord Keeper of the
Great Seal of London, to determine, and

 

 

78

to give such Costs to the Party grieved by

this Petition, as his Lordship, in his

Wisdom shall think fit....29

In spite of these steps to provide a clearing-house

for litigants upset with the justice they had received in
courts of equity, the Lords themselves in the 1620’s did not
directly reverse a decree from Chancery or any other court
of equity. Hargrave points out that “when directly

addressed by petition to themselves to relieve against an

erroneous decree of equity, the House still abstained from

 

undertaking to exercise this species of appellant

(y 30

jurisdiction. Hargrave was determined to prove that the
Lords’ attempts to establish a jurisdiction over appeals
from Chancery amounted to an unconstitutional innovation.
Although biased against the jurisdiction of the Lords, he
was correct in suggesting that they did not directly reverse
decrees in the 1620’s. James Hart, however, has uncovered
evidence which clearly demonstrates that the Lords were
comfortable in the belief that they had the power to
exercise an appellate jurisdiction over decrees given in
courts of equity.31 'Hargrave bases much of his argument on
the controversial case of William Mathewe, introduced by
petition on May 8, 1624, 3"the details of which Hart shows
that he misinterpreted.

William Mathewe sought an appeal from a decree given in

Chancery.33 The Lords' behavior on this petition led Hart

and Hargrave to their very different interpretations of the

79

attitude of the Lords to the propriety of their

jurisdiction. Hargrave points out that the suggestion of the
Committee for Petitions to consider this appeal was turned
down by the full House; they instead requested that the king
appoint a committee to consider Mathewe's case.” He
suggests that this was because the Lords did not believe
that it was within their jurisdiction to handle appeals.“5
Hart, however, thinks that such an interpretation is
misleading because of the special circumstances of the case.
Mathewe, in fact, had earlier petitioned the king to
consider his case, but James had confirmed the decree of the
Lord Keeper. Hart argues that the Lords' consideration of
the case at all indicates that they believed that they had
the right to handle such appeals, but that the fact that the
king had considered it previously had made them cautious;
thus ”[t]heir request for a commission should then be seen,
not as a denial of their appellate authority, but as a bold,

n 36

if very diplomatic affirmation of it. Even though they
had requested such a commission, they made clear to the Lord
Keeper that this commission was to have eight Lords on it,
and these were to be named by the Lords themselves.”

In 1625 the Lords took recognition of the fact that the
commission had not been created and called Williams to
account. The Lord Keeper explained why he had not done as

the Lords had ordered. Williams claimed that the king had

not recognized the order for a commission as it had not come

 

 

 

 

 

 

 

 

80

from him.38 This is one of the few clear cases of Opposition
of the king to the Lords’ appellate jurisdiction, but his
purpose was more to preserve what he perceived to be his
prerogative than to oppose the still inchoate jurisdiction
of the Lords itself. Despite the Lord Keeper's explanation
he was brought before the Lords in order to apologise and
recognize the propriety of the Lords' issuing such
commissions themselves.” The Lords, however, did not revive
their call for a commission to review Mathewe's case; they
were still considering it themselves in 1628.‘0

Hargrave, however, is somewhat accurate in portraying
the Lords' appellate jurisdiction as being insecure, as the
Lords did not reverse any cases in this period. The closest
that they came to doing so was to order further hearings
before the courts from which the case had come; they also
went as far as to order that one appeal, page y. Bppg, be
heard before themselves in 1628, though other business and
the dissolution of Parliament prevented this.‘1 'This

occurrence demonstrates a problem in the Lords' attempts to

act as a court -- the Parliaments of the 1620's were usually

of short duration. Nevertheless, the Lords were asserting a

degree of appellate jurisdiction over Chancery and other
courts of equity by ordering further proceedings on cases
that litigants brought before their House.“ What is
significant in this first decade of the Lords' appellate

jurisdiction is that they provided a means by which

 

 

81

litigants could escape the muddle of the appellate process
that had existed before. By ordering the rehearing of cases

in courts of equity the Lords sped up the process by which

 

 

litigants could seek a new decree. The benefits of this may
have been Obvious to the Commons and the king, for they did

not complain about it, aside from the king's refusal to

.L3

1‘—
.1.

issue a commission in 1624.
The hesitancy of the Lords to grasp a more complete

appellate jurisdiction ended in the 1640's. In the

 

political upheavals of the 1640's many changes occurred, #
including a tremendous alteration in the character of the
Lords' appellate jurisdiction. A desire to extend greater
control over the courts that were identified with the king’s
prerogative in a period of extreme constitutional tension
may have been the cause, though in its actions the Lords did
not seem to be expanding its jurisdiction in an arbitrary
fashion. Some of the first acts of the Long Parliament were
related to abolishing courts such as the Star Chamber and
the Court Of High Commission and the jurisdiction of the
Privy Council.“3 Though Chancery remained, it was subjected
to intense scrutiny bent on reforming it. The Lords in the
1640's exercised a more intense appellate jurisdiction over
it than earlier; and in the 1650’s, after the abolition Of
the Lords, attempts were made to secure another method of
appeal from it. The chief complaints about the Chancery in

this period were very much what they had been before,

82

”corruption, delay, lack of consistency, excessive
cost,...subservience to the crown" and, in the 1650's, in
the place of the crown, to Cromwell.“

It is unquestionable that the Lords in the period from
1640 to 1649 increased the scope of their appellate
jurisdiction over Chancery. Aside from simply hearing many
more cases, the Lords also directly reversed a decree, for
the first time, in 1640.‘5 As Hargrave points out, in the
1640's, especially after the commencement of the Civil War,
the Commons let the Lords have free rein with their

46

jurisdiction in general, not really questioning it until
1646. It might easily be suggested that the extension of
the Lords' jurisdiction was part of a larger attack on the
king's prerogative, aimed at his Chancellor. Matthew Hale,
the Chief Justice of King’s Bench in the reign of Charles
II, believed that in the first years of the Long Parliament
the Lords' acceptance of a more complete appellate
jurisdiction was politically motivated -— an attack on the
Office Of Chancellor.‘7 Hart suggests that this was not the
case and that the new extent of the Lords’ jurisdiction was
due primarily to the needs expressed for such an extension
by litigants.“8

Much evidence suggests that the Lords were not intent
on utilizing the confusion created by the political

manoeuvrings of this period as an excuse either to attack

the Chancellor or arbitrarily to extend their jurisdiction.

 

83

The Lords had not been in session to handle any petitions
asking for redress from decrees from Chancery for over a
decade. Thus there must have been a backlog of complaints.
In addition, many of the same problems existed with the type
of justice that Chancery could give as before, especially in
relation to appeals. Though the coincidence of the timing
Of the increase might suggest otherwise, the Lords, in fact, i
showed a great deal of reluctance to infringe on the

jurisdiction that traditionally belonged to Chancery. The

 

instructions for the Committee for Petitions in 1640 i
indicate this reluctance. The Committee was to ”reject

those [petitions] that are fit to be relieved at the Common

Law or Courts of Equity, and retain those that are fit for

('49

their Lordships' consideration. The same attitude is
evident in the orders given to the Committee throughout the
1640's, the result of an effort to cut down on private
business that was interfering with pressing public business.
In addition to this reluctance to take on cases that the
Lords felt were more appropriate for other courts, they also
were very cautious with the petitions that they did accept.
Of the 68 appeals from Chancery that the Lords received in
the period from 1641 to 1643, most were sent to be reheard
in Chancery; and, though they might send instructions along
with the case to the Chancery, the Lords did not

circumscribe the decisions that the Lord Keeper or the

commissioners had at their disposal.50 Hart also points out

84

that, in cases when they felt that the Chancellor or Lord
Keeper's decision had been inadequate, the wording of their
orders indicated caution. The upper House ”set aside
decrees, they did not reverse them.”“ Only twice in the
1640's did the Lords actually impose their own decision on a
case that they had set aside.52 Though numerically
insignificant these instances provided a valuable precedent
for the Lords' appellate jurisdiction as exercised in the

Restoration period.

 

 

The Lords, after 1642 those remaining at Westminster,

$1»-- ___. ya .l-r =-

displayed themselves to be willing to hand over petitions
asking them for justice to the Lord Keeper (after 1642 the
commissioners) himself. The upper House was not inclined to
steal the jurisdiction of Chancery.53 For example, the
petition Of Francis Jennings in 1647 was simply referred to
the Chancery for a decision.“ Often the decision of the
Lords on petitions presented to them for redress of a decree
given in Chancery would be to have it referred back to the
Chancery for retrial.55

Chancery itself meanwhile, during this period, because
of the character of its justice, its corruption and its
association with the infringements made by the king's
prerogative justice on the common law, was subject to ”scorn
and attack."56 These attacks were coupled with complaints
about the judicial aspects of the House of Lords. The

judicial functions of the House of Lords came under general

85

assault in the late 1640's, though not because of its
appellate function in particular. In 1646 John Lilburne was
arrested for slander against the Earl of Manchester. In his
trial before the Lords he showed scant respect for their
role as a court, denying their right to try commoners.57

This was followed by an even more serious denial of the

 

r-
Lords’ jurisdiction to try commoners in the impeachment of §
John Maynard in 1647.58 The most specific and threatening

attack on the judicial powers of the Lords, however, came in

1647 with the Heads of Proposals of the Army. Two clauses “1

of the Heads relate to the judicial powers of the Lords.
The first attacked the Lords' powers of judicature in
general. It demanded ”that the right and liberty of the
Commons of England be cleared and vindicated, as to a due
exemption from any judgment, trial or other proceeding
against them by the House of Peers, without the concurring

n 59

judgment of the House of Commons. The other clause was
more threatening to the Lords’ appellate jurisdiction
specifically. It stated that the appellate jurisdiction was
to be invested in the House of Commons and the Lords
together.60 These proposals were not accepted, however, and
the question of the Lords' jurisdiction lost relevance in
1649 when the upper House was abolished.

However, recognition Of the need for a court in the

same basic form of the pre-1649 House of Lords, exercising a

somewhat similar jurisdiction, found expression in 1657 with

86

Egg Humble Petition and Advigg. This proposal was designed
to create a new monarchy for England under Oliver Cromwell,
and also called for the establishment of a second House. As 1
an attempt to restore a stable and somewhat conservative

basis for English government this proposal was a relative

failure. Due to political conflict the second House never

became truly functional. These plans for another House, FT
however, reveal that the jurisdiction that had been

exercised by the Lords' House prior to its abolition must ll

 

 

have possessed a significant degree of favor among those *i
concerned with the problems in the legal system. It was to

proceed ”in writs of error, in cases adjourned from inferior

courts into the Parliament for difficulty, in cases of

petitions against proceedings in Courts of Equity, and in

('61

cases of privileges of their own House. Thus, the new
House would have possessed many of the judicial powers of
the Lords’ House including the appellate jurisdiction over
decrees from courts of equity.

Chancery itself had changed after Lord Keeper Littleton
fled to the king in 1641. Beginning in 1642 the single
Office was replaced by a series of commissions. This,
however, did not solve the problems in the way that justice
was carried out in the court. In 1649, there were three
commissioners, assisted by Lenthall, Master of Rolls. One

of the commissioners, Whitelock, however, complained that

most of the work fell on him and recognized that litigants

87

were dissatisfied with the justice that was being secured in
Chancery.‘2 That the House of Commons was still concerned
with Chancery can be seen in an attempt to secure its ‘
abolition in 1653.63 One proposal suggested that "special

commissioners" would handle the cases that were already in

process, while many courts would be created in the

localities to administer equity to litigants.“ After he FT
dissolved the Parliament in 1653, Cromwell tried to reform ’

Chancery and provide some means of securing appeals from it.

 

One of the articles of the proposed ordinance of 1654 called

 

Er“ "

for a new court to allow appeals from the reformed Chancery.
In the event of a litigant's desire to appeal a decision,
the commissioners who had replaced the Chancellor as the
judges in Chancery were ”to notify the Courts Of Upper
Bench,... Common Pleas, and Exchequer, which were to select
six of their members to join the commissioners and sit at
the new hearing."65 The reforms of Cromwell were nominally
put into practice, but they were quickly done away with at
the Restoration.“ Both this attempt at reform and that
expressed in The Humble Petition and Advice demonstrate that
the House of Lords, prior to 1649, had fulfilled a need in
the legal system that was only too obvious when it was
absent.

As it was in the Restoration period that the appellate
function of the Lords matured, it was also then that the

Commons came to challenge the Lords' appellate jurisdiction.

88

In this period the Lords acted very much as they had in the
1640's. The upper House had become confident in exercising
its appellate jurisdiction. In the meanwhile, until 1675,
neither the king nor the Commons complained directly about
the propriety of the Lords' jurisdiction over appeals from
Chancery. There were, however, other signs of trouble
between the Lords and the Commons over the judicial role of
the Lords. Most of the disagreements between the two Houses
over the Lords’ powers Of judicature, however, were singular
matters that did not lead to prolonged conflict. In 1667,
for example, the Lords and the Commons fought over the
articles of impeachment offered by the Commons against
Clarendon. Likewise, the Commons argued with the Lords in a
procedural matter over the impeachment of Lord Mordaunt.
Another matter almost brought conflict between the Commons
and the Lords in 1667, when the Commons considered the
petitions of two commoners, Fitton and Carr, who had been
imprisoned by the Lords for libel against a member of the
Lords, clearly a matter of privilege for the Lords, though
extraordinary in the long terms of imprisonment set. The
Commons took no further action than simply debating the
petitioners' plight.67 The struggles between the Commons
and the Lords over the original and appellate jurisdiction
of the Lords, as will be seen, were much more vicious.

The jurisdiction of the Lords over appeals from

Chancery was immediately revived at the Restoration. From

 

89

1660 to 1675, the Lords considered seventy-three petitions
for appeal from courts of equity, most of them from
Chanceryf8 The numbers of appeals handled swelled as the
Restoration period progressed. In 1660 the Lords accepted
five appeals from courts of equityu“’.From May 1661 to
January 1667, however, they accepted only seven appeals from
Chancery and other courts of equity together.7o From
February 1667 to November 1675, the Lords handled sixty-one
appeals. Though reversing some of the decrees, the Lords
showed themselves unwilling to subsume the jurisdiction of
Chancery, dismissing twenty—nine of the petitions brought to
them for appeal in this sixteen-year period.’1 Even when
they did reverse decrees of Chancery, they were careful in
their phrasing; instead of overturning they often simply
”set aside” decrees.72 In addition, in the 1660’s, the Lords
remained adamant about keeping the number of appeals coming
into their House at a low level, probably so that pressing
public business could be taken care of. In this period, the
Lords consistently refused to hear appeals from Chancery
unless Bill of Review procedure had already been attempted.”
The character of the Lords' jurisdiction, though much
different from what it had been in the 1620's, and very much
as it had been in the 1640’s, does not appear to have been
extraordinarily high-handed. The Journals of the House of
Commons show that the lower House did not Object to this

jurisdiction until 1675. If they had objected to the Lords'

 

90

jurisdiction and saw it as constitutionally dangerous, it
is highly unlikely that they would have been so reticent.

As will be seen, however, in relation to the conflicts
in 1675, privilege had an influence in how the Commons
perceived this jurisdiction. One case in the 1660's
indicates that the House of Commons was not willing to raise
a fuss if one of their members used the judicature of the
Lords as a plaintiff. Robert Robertes, a member of the
House of Commons, petitioned the Lords on a matter of
justice, and the Lords ordered the Lord Chancellor to make a
decision and issue a decree from Chancery.“ The Lords then
amended their order, ordering to the Lord Chancellor, very
unusually ”that he proceed to make a speedy Decree in the
High Court of Chancery in this Case, according to Equity and
Justice... notwithstanding there be not any Precedent in the
case."75 The Bishop of Lincoln dissented from this decision
on two grounds. He suggested that it might give an

I! 76

”arbitrary power in the Chancery. Furthermore he raised a
concern that the order might cause problems between the
Lords and the Commons because Robertes was a member of the
Commons." The Commons, however, did not protest against the
Lords’ handling of the case. The difference between this
case and the other cases that will be considered is that the
member of the House of Commons involved was the plaintiff,

not a defendant.

In 1669 the struggle over Skinner y. East India

91

Company" brought about the demise of the Lords' original
jurisdiction in civil cases. Prior to this case, the
Commons had not challenged the right of the Lords to
exercise an original jurisdiction over civil cases.
However, as has been demonstrated, the Lords had been very
cautious in not accepting cases that could be solved in the
ordinary courts of common law or equity and habitually had
referred petitioners to those courts if their complaints
could be handled there. As the Committee for Petitions
typically included several judges as assistants, they would
ensure that this rule was followed, especially as they would
not want their own jurisdictions infringed upon. In the
case of Skinner y. Egg; ngip Company, despite the
recommendation Of the judges that most of the matters of the
case could be handled in Common Pleas, the Lords took
cognizance of Skinner’s petition. This neglect of the
advice of the judges was not typical of the behavior of the
Lords in this period. Another unusual, yet revealing
characteristic of this case was that members of the Commons
were defendents.

That Skinner y. Egg; ngia Company did raise objections
from the Commons might suggest that much of the animosity
revolved around the question of privilege. In addition,
however, and this point is very significant, the Lords were
portrayed as interfering in the normal process of law,

taking cognizance of a case that could have been decided in

u. 4‘

 

92

a common law court. This, more than the question of
privilege, is the key to understanding the primary issue of
this case and sets it apart from the causes of the conflict
over Sherley y. Epgg in 1675, a difference that historians
have not adequately considered.

Skinner, a merchant, had petitioned the king in 1666
for redress against an action of the East India Company
during the Interregnum. The Company, claiming its monopoly
of trade in the East Indies, had seized his property and his
goods." When Skinner petitioned the king, he set up a
commission of members of the Privy Council to deal with the
case, but it proved unsuccessful in bringing the two parties
to an agreement.80 The king referred the case to the Lords,
and Skinner sent his petition to them. However, the Company
denied the jurisdiction Of the Lords, suggesting that they
did not have the power to handle a matter of original
jurisdiction.81 It claimed, ”That the petition is in the
nature of an original complaint, not brought by way of
appeal, bill of review, or writ of error, nor intermixed
with privilege of parliament, nor having reference to any
judgement of that court."’32 When the Lords pressed them to
cooperate it supplemented this statement by claiming that
”the matters of complaint in the petition are such, for
which remedy is ordinarily given in the courts of
Westminster Hall, wherein these respondents have right to be

tried...."83 The Lords, concerned about these charges,

 

 

4
IE "'5.

 

 

93

consulted the judges, who reached a decision that did not

resolve the ambiguity Of the matter:

[T]he matters touching the taking away

of the petitioner's ship and goods, and
assaulting Of his person, notwithstanding
the same were done beyond the seas, might be
determined upon his majesty's ordinary courts
at Westminster; And as to the dispossessing
him of his house and island, that he was not
relievable in any ordinary court of law.“

 

‘ i-.-
.-

This decision of the judges did not deter the Lords from

considering all the matters of the petition, for they

 

believed that, since part of the complaint was not 9
relievable by either the common law or equity, they
maintained jurisdiction of the whole.

As the case had a bearing on the privileges of the
House, involving several members of the Commons, the manner
in which the Commons protested the Lords' taking cognizance
of the case is very revealing. The Company petitioned the
House of Commons, reminding them that several of the Company
were members of the Commons and suggesting the dangers to
the liberty of commoners and to the sanctity of the common
law of the Lords' exercising such a jurisdiction.85 They
believed that their status as members of the Commons might
exempt them from the jurisdiction of the Lords on the basis
of privilege. The Commons condemned Skinner for pursuing
the case and thus breaching the privilege of the Commons.
Subsequently it ordered a committee headed by Solicitor

General Finch ”and all the gentlemen of the long robe"86 to

 

 

 

 

 

94

determine the jurisdiction of the Lords in the matter of
Skinner; and this committee, after a search of precedents,
devised three resolutions against the propriety of the
Lords’ consideration of the case. The first claimed that
the trial, involving members of the Commons, was a violation
of the Commons' privilege.” The second stated the dangers
of the Lords assuming an original jurisdiction and denied
their possession Of it, noting that the case was one that

could be solved in the ordinary courts of law.86 The third

 

discussed the violation of the individual rights of the k
defendants to a fair trial.89 What bears examination,
however, is that the Commons as a whole did not abide by the
recommendations of the committee. The Commons voted to send
two resolutions to the Lords, ignoring the specific contents
Of the first and third resolutions that the committee
recommended. The two resolutions that they sent focused on
the larger issues of the law, denying the Lords an original
jurisdiction and condemning their decisions in a case over
which they had no jurisdiction.90 The question is, then, why
the Commons did not assert the issue of privilege in their
resolutions. That the Commons felt that the Lords' taking
cognizance of a case involving some members of the Commons
was a violation of privilege is evident in the condemnation
of Skinner for pursuing his case and in the decision of the
committee to include the matter of privilege as one of their

resolutions to be presented to the Lords.

95

This was a period in which the notion of parliamentary
privilege might easily be extended over many actions for
which it did not necessarily have a historical
justification. Both Houses in this period experimented with
privilege, often in a very arbitrary fashion.91 Holdsworth
suggests that in the seventeenth century ”it was clear that
the law might in effect be changed by the resolution of a
single House, and that the subject had no protection against
any sort of arbitrary act which the House might choose to
say was privileged.”92

The Commons in Skinner, in Slyngsby y. Hglg in 1670,
and in the three cases of 1675, which will be discussed
shortly, behaved in such a way as to indicate that it was
fundamentally opposed to the right of the Lords to try cases
involving members Of the Commons, at least not without its
permission. This protective attitude to privilege for
members, however, conflicts with the decision of the Commons
in Skinner's case not to send the resolution of the
committee regarding privilege to the House of Lords. The
first reaction by the Commons to the appellate cases that
will be discussed was to remind the Lords of the matter of
privilege that was involved when members of the Commons were
defendants. It is thus curious that the Commons chose not
to resist the actions of the Lords on this basis in

Skinner’s case. Another difference between Skinner and

 

Sherley is that in Skinner the Commons denied the propriety

 

 

96

of the Lords' jurisdiction from the very beginning, whereas
in Sherle , as will be seen, the Commons attacked the

appellate jurisdiction of the Lords only after the Lords had

 

ignored the Commons’ warnings about the privileges of its
members. In Skinner’s case the Commons was concerned
primarily with the propriety of the jurisdiction that the
Lords were trying to exercise. In taking cognizance of a
case that, for the most part, belonged in Common Pleas, the
Lords were violating the security of the common law courts
that the Commons and the common lawyers had worked so
diligently to preserve. From the beginning of Skinner's
case the Commons showed their determination to halt this
dangerous encroachment of the Lords, which was more alarming
because the Lords blatantly ignored the opinion of the
judges that most of the case could be resolved in the

ordinary courts of the common law.

 

 

 

This might have been why the Commons, in a period of
extreme jealousy over privilege, chose not to focus on that
issue even though the defendants were members of the
Commons. To have taken up the suggestion of the committee
to send the Lords the resolution concerning privilege would
have distracted attention from the main issue of a violation
of the common law. If the Commons won the struggle on the
basis of privilege, they would not have put a dent in the
power of the Lords to interfere in the common law. They

would have scored only a minor victory for privilege. This

97

struggle between the two Houses did not find explicit
resolution. Instead, the king, desiring to end the deadlock
that the case was causing, prorogued Parliament twice. The
Lords did not take up the case of Skinner again,93 and though
after this they made a few futile attempts to exercise such
a jurisdiction, they had effectively lost their ability to
handle civil cases of original jurisdiction involving
commoners.

When the dynamics of the cases of Skinner and Sherley
are compared it does not appear that they were part of a
more general attack upon the entirety of the Lords'
jurisdiction, as Flemion, Relf and Foster have suggested.
There is little evidence that indicates that the challenge
to the Lords’ original jurisdiction in 1669 and the
appellate jurisdiction in 1675 were connected in any way
except for the fact that both involved the potential for
questions of privilege by coincidence of member(s) of the
Commons being defendant(s) in both cases. In fact, the
statements of the East India Company itself and the actions
of the Commons indicate that in Skinner there was no general
opposition to the Lords’ appellate jurisdiction over
Chancery and other courts of equity. When the Company
responded to the Lords' handling of the case they implicitly
recognized the Lords’ ability to handle appeals from equity.
In complaining about the Lords’ consideration of this case,

they objected, ”That the petition is in the Nature of an

 

 

 

 

 

 

98

Original complaint, not brought by way of Appeal, Bill of
Review, or Writ of Error...."94 The House of Commons
confined its Objections to the Lords’ cognizance Of the case
to their lack of an original jurisdictionfm Moreover, in a
comprehensive bill created by the Commons during the crisis
over original jurisdiction, they did not challenge the right
of the Lords to handle appeals from Chancery. The aim of
the attack on the Lords' jurisdiction in Skinner's case
seems to have been limited to their original jurisdiction,
which posed a threat to the common law.

The struggle over the Lords' appellate jurisdiction in
1675 needs to be considered in this context. The only
potential challenge to the Lords’ appellate jurisdiction
before the case Of Sherley y. Epgg and the two accompanying
cases of Stouqhton y. Onslow and Crispes y. Dalmahoy in 1675
is found in the case of Slyngsby y. Hale in 1670. The
petition presented by Slyngsby asked for an appeal from a
decree given in Chancery. As in the case of Skinner, the
defending party was a member of the House of Commons. The
Commons accordingly sent the message that they ”desire[d]
the Lords to have Regard to the Privileges of the House
therein."96 The Lords responded by sending a message by the
Lord Keeper stating, ”That the House of Commons need not
doubt, but that the Lords would have as due Regard for their
Privileges, as they had their own."97 The Lords, though

determined to try the case, were cheated out of the

j

 

 

 

 

 

 

 

99

opportunity because Slyngsby withdrew his request when he
found that he could get a rehearing of his case in
Chancery.98 The Lords, however, issued a declaration
confirming their right to take on such cases even if a
member of either House was involved:

the Lords do declare, that their Proceedings

have been according to the Course of Parliament

and former Precedents; and that the Lords do

assert it to be their undoubted Right in

Judicature, to receive and determine in Time

of Parliament Appeals from Inferior Courts, though

a Member of either House be concerned, that there

may be no Failure of Justice in the Land.99
This is the precedent on which the Lords based their stance
in the crises of 1675, which will be the subject of the next
chapter.

In the Restoration period the Commons and the Lords
were in conflict over several aspects of the Lords’ judicial
functions. It is important to recognize that these matters
do not necessarily suggest that the Commons was opposed to
the Lords’ judicial functions in general or to the appellate
jurisdiction over Chancery and other courts of equity. The
difficulties over impeachment did not lead the Commons to
challenge this aspect of the Lords' judicature. In the
process of the other judicial difficulties, no voices were
raised by the Commons about the Lords' appellate
jurisdiction from Chancery. As the next chapter will show,

however, the attitude Of the Commons to the appellate

function of the Lords, up to now benign if not favorable,

 

 

100

changed, if only temporarily. This was due to the
particular characteristics of the three cases of 1675
themselves, each involving a member of the Commons, and the

particular context in which they were considered.

III. Court, Country and the Appellate Controversy

Of 1675

I will argue in this chapter that the contestation by
the Commons of the appellate jurisdiction of the Lords over
Chancery and other courts of equity was due primarily to
factors other than a general opposition by the Commons to
that function of the Lords. As shown in the previous
chapters, the Commons had good reason to support the growth
of the Lords’ appellate jurisdiction in the 1620’s and
after, as the Commons themselves had searched for a means to
provide for appeals from Chancery for litigants. Nor had
the Commons contested the right of the Lords to exercise an
appellate jurisdiction, aside from the particular objection
to a member of the Commons being a defendant in 1670 in
Slyngsby y. Hglg. Although other historians have viewed the
challenge to this aspect of the Lords’ jurisdiction as being
part of a larger movement to limit the Lords’ powers of
judicature in general, the circumstances of the challenge in
1675, however, suggest something quite different. The
apparent opposition of the Commons in 1675 was largely the

result of the characteristics of three unusual cases brought

101

102

before the Lords, and the peculiar and politically-charged
environment in which they were considered.

The characteristic of the case of Sherley y. Eggg in
1675 and two other cases which occurred at the same time,
Stouqhton y. Onslow and Crispes y. Dalmahoy, which
determined that the Commons would contest the right of the
Lords to handle these three cases specifically was that each
involved a member of the House of Commons as the defendant
in the appeal. This factor supplied sufficient reason for
the Commons to contest the right of the Lords to handle
appeals from courts of equity involving members of the
Commons in time of Parliament, for the Commons at this time,
during a period of enhanced jealousy over privilege,
ostensibly considered it to be one of their privileges to be
immune from civil suits in time of Parliament, especially if
a suit was prosecuted in the Lords. The Commons had
historically displayed a concern that members of their House
should not be called before the Lords without their consent.1

The fact that the Commons, in the midst of the struggle
over Sherley, resolved that the Lords did not possess an
appellate jurisdiction over decrees from equity should not
be construed as representing a genuine opposition to the
appellate jurisdiction Of the Lords. Instead, in the early
stages of these cases the Commons did not even suggest that
the Lords' appellate jurisdiction was unconstitutional. The

position of the Commons changed when the Lords, under the

103

encouragment of Shaftesbury, would not yield to the Commons'
assertion of their privileges. Only then did the Commons
deny the right of the Lords to handle appeals from equity in
general, rather than just those involving members of the
Commons in time of Parliament.

This chapter will suggest that the reason for such a
change of attitude was the political agenda Of the Earl of
Shaftesbury and his encouragment of the Lords to handle
these cases and belligerently assert their right to exercise
a complete appellate jurisdiction even if a member of the
Commons was involved, in spite of the Commons' protests.
Shaftesbury’s actions indicate no willingness to compromise
with the Commons on a matter that was obviously very
important to their privileges. The Commons showed no
inclination to challenge the Lords' appellate jurisdiction
until they were forced by Shaftesbury's scheme to believe
that doing so was the only method of securing their
privileges. Their subsequent statement that the Lords did
not possess an appellate jurisdiction was in opposition to
their behavior from 1621 to 1675.

Shaftesbury's motivation for his actions in regard to the
three cases in 1675 might have been a genuine support for
the Lords' jurisdiction. The circumstances of the two
sessions, however, suggest that he had other priorities and
that the Lords' appellate jurisdiction became his tool to

upset parliamentary proceedings. It is unlikely that the

104

debate over these cases would have reached such extremities,
forcing the king to prorogue Parliament twice had it not \
been for Shaftesbury's desire to force the dissolution of
Parliament. His priority in this period was opposition to
the Anglican policies of the Earl of Danby and the Court and
to Danby’s hold through patronage on the House of Commons.
Shaftesbury is well known for his opposition to the Court
and the presence of Catholics in government during the

period of the Exclusion Parliaments from 1679 to 1681. His

 

opposition to the Court, however, was apparent immediately

 

after 1673, when the Cabal had been dissolved and he was no
longer Lord Treasurer. Shaftesbury exploited the fears of
the Lords that the Commons and Danby desired to limit their
constitutional position and the jealousy of the Commons over
the privileges of their members, by highlighting the issues
that were at stake in these cases. In doing so, he hoped to
frustrate the policies of Danby and the Court by forcing a
dissolution.

The proof of this reconstruction of events lies in the
progress of the two sessions of Parliament in 1675, from
April to June and from October to November, and the actions
of the Earl of Shaftesbury in reference to the three
relevant cases in these sessions. A demonstration of
Shaftesbury’s aims, however, is not the major goal of this
chapter, whose purpose is to demonstrate that the Commons

through their actions did not show themselves eager to

105

deprive the Lords of their appellate jurisdiction over
Chancery and other courts of equity but that they were
forced into this course of action by the aims and the
behavior of Shaftesbury.

The divisions over religious questions in this period,
especially in the 1670's, provide the historian with
numerous problems in explaining the character of opposition
in the Parliaments of Charles II. That an opposition,
however amorphous, existed is apparent in the struggles over
the religious issues of the day and the comments of those
who were associated with the policies of the Court. It was
to such an opposition that Lord Chancellor Finch referred to
in his speech at the Opening of Parliament in 1677,
commenting on the failure of the previous two sessions:

Away then with all the vain Imaginations of

those who Labour to infuse a Misbelief of

the Government! Away with those ill-meant

Distinctions between the Court and the

Country, between the Natural and the

Politic Capacity! And let all who go about

to persuade others that there are Two

several Interests, have a Care of that

Precipice to which such Principles

may lead them.2
Charles II was just as adamant in pointing out the existence
of such a group that was responsible for frustrating his
policies. At the beginning of several sessions of his
Parliament in 1675 and 1677 he called to the attention of

the Lords and Commons his awareness of the ”enemies” and the

”pernicious Designs of ill Men" who were determined to upset

106

his policies.3

The opposition in the House of Lords under the
leadership of the Earl of Shaftesbury centered upon the
intense religious controversies of the Restoration period.‘
Much evidence exists which shows that an opposition group to
religious restrictions existed in the Lords in this period;
though shifting in its consistency it was largely inimical
to the zealous Anglicanism that typified the Commons'
actions throughout the Restoration period. Opposition in
the upper House to religious restrictions, particularly in
regard to Protestant dissent, had been present since the
restoration of the Lords' House in 1660. The most potent
manifestation of this was the ”Presbyterian opposition."5
The Lords, in general, in this period proved themselves to
be much more tolerant in religious matters than the Commons,
particularly in the late 1660’s and 1670's. Richard Davis
suggests that the issue of religion was ”the single most
important cause of organized Opposition, and later of party,
in the House of Lords."6 A.significant element in the Lords
identified with toleration for dissenters and displayed
themselves as fierce opponents of the overzealous Anglican
behavior of the House of Commons even as early as the
creation of the acts of religious intolerance that came to
be termed the Clarendon Code. This was evident, for
example, in the passage of the Conventicle Act, in which the

Lords moderated the punishments which it originally

107

outlined.7 The House also showed its willingness to be more
tolerant than the Commons in 1668 and 1669, when it
prevented the passage of two new conventicle acts sent up by
the Commons.‘3 The Catholics and those friendly to dissent
had often acted in conjunction before 1673 to oppose the
religious restrictions that affected their interests, though
the discovery of James' Catholicism in 1673 divided them.9

In 1675 the Catholic and Presbyterian members of the
Lords came together again temporarily to oppose Danby's
Anglican policy.10 His attempt in that year to pass the Test
Act, part of his Anglican policy, made the opposition of a
group of the Lords to religious restrictions more obvious,
and this occurred at the same time as the three appeal cases
that led to the struggle over the Lords’ appellate
jurisdiction. The Earl of Shaftesbury took the lead role in
this opposition, along with other members, such as
Buckingham, Wharton, and Holles.

There also existed at this time in the Commons a
connection of interest that could be considered a “Country
Party."11 Among this interest were those members who had
participated in the struggle against the king in the 1640’s
and those angered by the mismanagement that they saw in the
running of the government.12 There had in fact been an
observable shift in the character of the government and the
path down which it was heading with several events of the

1670's: the Declaration of Indulgence, the alliance of the

108

English and the French in a war against the Dutch, and the
revelation that James was a Catholic.13 The Opposition in
the Commons pursued a course of action that was indicative
of both a distrust of government and of hostility to
Catholics. Both Houses were in fact infected by anti-
Catholic feeling in 1673, the Commons introducing a new test
bill that was intended to keep Catholics out of the House of
Lords and the Lords proposing a bill for ensuring the safety
of the Anglican religion from the threats of Catholicism.“
In 1675 the opposition in the Commons had a set of bills
that they wanted passed. This included a test act for all
of Parliament similar to the one of 1673 restricting
Catholics from the Lords, a Habeas Corpus bill, and a bill
to prevent the king from extracting money from the country
without lawful consent of Parliament. There were also plans
for other bills against Catholics and unsuccessful attempts
to rid the government of both Lauderdale (through an
address) and Danby (through impeachment).15 As will be seen,
the agendas of the oppositions in the Lords and the Commons,
though similar in spirit, conflicted in the progress of the
session as a result of the dispute over the three appellate
cases. This was largely the result of the means Shaftesbury
chose to defeat Danby's program for Parliament.

In the session which opened in April of 1675, Danby was
determined to forward an Anglican policy, largely centered

on removing non-Anglicans from all offices of state,

109

including Parliament. This was coupled with a call for
revenue to strengthen the fleet.16 This matter of state
security, however, was neglected as a result of the reaction
of the Opposition to the religious proposal. The Test Bill
was introduced into the Lords in the first week of the new
session and was termed ”An Act to prevent the Dangers which
may arise from Persons disaffected to the Government.”17 The
intention of the Bill was to require from all officials and
members of Parliament an oath that they would not attempt to
disturb the ”existing establishments” of the Anglican Church
and the government.18 It was in opposition to this bill that
Shaftesbury directed his efforts.

As the Journals of the House of Lords did not record
the debates between members or the divisions in voting, it
becomes problematic to establish the connections among the
three basic factors which I have suggested were part of one
effort to ruin the sessions: the opposition to Danby’s
Test, the effort to secure the dissolution of Parliament,
and the manipulation of the cases of Sherley y. Epgg,
Stouqhton y. Onslow and Crispes y. Dalmahoy. To establish
the connections among the three factors one must rely upon
the records of the protestations in the House of Lords,
which contain the names of those who objected to particular
resolutions or acts. The consistency of the names on these
protests indicates that some Lords made a consistent effort

to disrupt the proceedings of Parliament. Other scraps of

110

unofficial information help confirm the suggestions made by
the trends in these protests.

The Lords made four protestations in reference to the
Test Bill of 1675, which, though varying in the numbers of
Lords who protested, contained a core of members who
protested each time.19 Moreover, before the introduction of
the Test Bill, ten members, including Shaftesbury protested
against thanking Charles for his speech opening Parliament.20
The matters of the protests against the Test Bill itself

indicate that it received significant opposition, though the

 

 

bill in the end was passed by the Lords. After the second
reading of the Test Bill on April 21 the question was asked
of the Lords, ”Whether this Bill does so far entrench upon
the Privileges of this House, as it ought therefore to be
cast out?"21 This question did not pass, and twenty-three
members“ protested the decision of the House. These
members conceived the terms of the bill to be a violation of
their privilege and offered the explanation that

we do humbly conceive, That any Bill

which imposeth an oath upon the Peers

with a Penalty, as this doth, that,

upon the Refusal of that Oath, they shall

be made incapable of sitting and voting

in this House; as it is a Thing

unprecedented in former Times, so is it, in

our humble Opinion, the highest Invasion of

the Liberties and Privileges of the Peerage

that possiblly may be....23

The second protest of the Lords occurred five days later,

and was against the motion that the Bill be committed, which

111

it nonetheless was. This protest complained again that the
oath was as a violation of the privileges of the Peers but

added that the bill,

as we humbly conceive, does strike at the
very Root of Government, it being necessary
to all Governments to have Freedom of Votes
and Debates in those who have Power to alter
and make Laws; and besides, the express words
of this Bill obliging every Man to abjure

all Endeavours to alter the Government in the
Church, without regard to any Thing that
rules of Prudence in Government, or Christian
Compassion to Protestant Dissenters, or the
Necessity of Affairs at any Time shall or may
require.“

 

 

 

Though this protestation was made by only twelve members,
each of them had been part of the first protestation against
the Test Bill: Buckingham, Howard Earl of Berkshire,
Bristol, Clarendon, Delamere, Basil Denbigh, Mohun,
Salisbury, Shaftesbury, Stamford, P. Wharton and
Winchester.” .All but Buckingham, Berkshire, Bristol, and
Denbigh had also taken part in the protest against thanking
the king for his speech. Those remaining, and to a degree,
the other four, provided the core of the opposition, as will
be seen. These Lords were, for the most part, consistently
involved in the protests relating to the dissolution of
Parliament, the other protests against the Test Bill, and
the protests encouraging the Lords to be more forceful in
asserting their rights to their appellate judicature.
Those who had agreed to commit the Bill, however,

complained about the protest issued [the second against the

112

Test Bill] and decided that “the reasons given in the said
Protestation do reflect upon the Honour of the House, and
are of dangerous Consequence."‘Z6 This complaint, however,
resulted in another protest by twenty-one members, including
not only ten of the twelve, minus Bristol and Stamford, who
had issued the last protestation, but also most of those who
had participated in the first protestation against the Test
Bill."‘7

The final protestation against the Test Bill involved

 

an attempt to have a proviso added to the Bill that would

 

have secured the right of members of Parliament not to have
the oath imposed on them and guaranteed their right to pass
new laws, which rights they believed would be violated by
the bill. When this provision was not accepted, fifteen
members protested,28 including all but two, Paget and
Halifax, of those who had signed the protestation against
the king's speech. All fifteen of these final protesters
against the Test Bill had also participated in the first
protest against it. All Of the members, save one, Bristol,
of the second protestation against the Test Bill had also
participated in this fourth and final protest against it.
In addition, all of those participating in this fourth
protest, save one, Stamford, had also participated in the
third protestation.

The list of protestations provides an effective means

by which to make connections between those who opposed the

Peer

Ailesbury
Audley
Bedford
Berkshire
Bridgwater
Bristol
Buckingham
Clarendon
Delamere
Denbigh
Dorset
Eure
Fitzwalter
Grey
Halifax
Holles
Mohun
Paget

Petre

113

Table 1

Protests Against Danby's Test

Protest of Protest of Protest of Protest of

April 21

April 26

April 29

May 4

 

(‘5 9..

Salisbury
Saye
Shaftesbury
Stamford
Wharton

Winchester

Totals

23

114

Table l (cont’d)

12

21

15

115

basic tenets of the Test Bill and those who desired a
dissolution of Parliament and also encouraged the Lords to
maintain the judicature of their House in spite of the
opposition of the Commons. There were two attempts by the
opposition Lords to get the king to dissolve the parliament,
the first of which was on November 20, 1675, during the time
in which the battle over Sherley y. Epgg was raging. A
motion was made to address the king to dissolve Parliament.”
The vote on whether to present the address to the king in
fact was very close: the House decided against sending the
address to the king by a vote of fifty to forty-eight.30
Twenty-two members31 issued a protestation against the
decision of the Lords not to make the address to the king,
which said that the length of the Parliament meant that the
members of the Commons were no longer truly representative
of their constituencies and blamed the trouble between the
Commons and the Lords on this fact, suggesting that only
through a dissolution could the two Houses be brought into
an effective relationship again.32 It is noticeable that a
substantial number of those who participated in this
protestation had been relatively consistent in protesting
against the Test Bill also. This is particularly the case
for Berkshire, Bridgewater, Buckingham, Clarendon, Delamere,
Dorset, Mohun, Grey, Salisbury, Shaftesbury, Stamford,
Wharton, and Winchester. In effect, there was consistency

between those who were opposed to the Test Bill and those

116

who desired the king to dissolve Parliament. In 1677, after
the two sessions in question had been prorogued for fifteen
months, four of the key protesters, Buckingham, Salisbury,
Shaftesbury, and Wharton, all asserted that Parliament was
thus dissolved and were arrested for this proclamation.33
The protestations indicate that there was a close
connection between those who were opposed to significant
elements of the Test Bill and those who desired that the
Parliament be dissolved. What is more significant for the
purpose of this chapter, however, is that it was largely the
same core of members who supported a forceful attitude of
the Lords to the Commons, proclaiming the absolute nature of
the Lords' appellate jurisdiction. The members signing the
protestation about Sherley y. Eggg indicate the connection.
The Commons on May 5, 1675, noting that the Lords had taken
cognizance of the case, had sent the Lords a message
requesting that they have regard for the Commons’ privileges
in the case as it was one in which a member of the House of
Commons was involved.“ The Lords, in considering an
appropriate reply to the Commons, decided against sending
one that belligerently affirmed their right to exercise
their appellate jurisdiction regardless of the office of the
party and simply told the Commons ”[t]hat the House of
Commons need not doubt but that their Lordships will have a
regard to the privileges of the House of Commons as they

have of their own.”35 Several Lords believed that this answer

117

would not suffice and suggested that

the Answer voted to be sent to the
House of Commons, being the same that
was sent down formerly in the Case of
Hale and Slyngsby, hath, as we with all
Humility do apprehend, been already
mistaken by them, as a Condescension of
this House to forbear proceeding in
Judicature, in Affairs of this Nature;
and appears to us very liable to so great a
Misconstruction, that it may seem in some
Measure to acknowledge that the House of
Commons have a Claim to some Privilege in
Judicature; which is a thing that we
conceive belongs solely to this House....

36

Though only nine Lords protested the decision of the House
to send such a relatively non-belligerent message to the
Commons, the majority of these had been key members in
several of the protests against the Test Bill and for the
dissolution of Parliament -— most particularly Bridgwater,
Berkshire, Dorset and Shaftesbury, and, to a lesser extent,
Bedford and Denbighfi‘7 Shaftesbury, the most consistent
member of the opposition, demonstrated his absolute support
for an unrestricted right of the Lords to handle appeals
from courts of equity in a speech in which he argued for the
Lords to set a date to hear the case of Sherley vs. Fagg.”

Thus it is apparent that a significant core of the
Lords is associated with Opposition to the Test Bill,
support of the dissolution of Parliament and the support for
the Lords' judicature. What needs to be shown next is that
the cases of Sherley y. FaQQ, Stouqhton y. Onslow and

Crispes y. Dalmahoy were tools to achieve the dissolution Of

118

Parliament which was needed in order to subvert the Anglican
plans of the Earl of Danby. The proof that will be offered
is the unusual nature of the progression of events that led

up to the challenge by the Commons to the Lords' judicature.

 

The coincidence of three appeals against decrees made
in favor of members of the Commons in such a short period is
suspect: why would three appeals involving members of the
House of Commons be introduced in the first several weeks of
a very short session? The first case introduced upon

petition to the Lords was an appeal made by Sir Nicholas

 

Crispe and several members of his family on April 19, 1675,
against a decree in Chancery in favor of Thomas Dalhomey, a
member of the House of Commons, and several others.” The
second, introduced on April 23, was that of Sir Nicholas
Stoughton seeking ”an Appeal from the Dismission of his Bill
out of the Court of Exchequer.“o The defendant in this
appeal was Arthur Onslow. The third petition ‘was that of
Dr. Thomas Sherley seeking an appeal, “complaining of a
Dismission of his Bill of Discovery in Chancery...."“1
Sherley had presented the same petition to the Lords in
1669;‘2 but, when Parliament was prorogued after the crisis
over Skinner , Sherley took no further action on it. As in
the other two cases the defendant, John Fagg, was a member
of the House of Commons. There is no way to prove that the
three petitions were instigated by the Earl of Shaftesbury

or any other member of the Opposition, but this coincidence

119

and the manner in which these cases were handled indicate
that the opposition used these cases to the advantage of
their plans.

The initial behavior of the House of Commons did not

suggest that a significant struggle would emerge over these

 

cases. In fact, the Commons' first reaction was simply to
make note to the Lords that they should be aware of Fagg's
privilege as a member of the Commons, ostensibly because his
status as a member protected him from being brought to plead
in the Lords, although they did not deny the jurisdiction of
the Lords over appeals from Chancery or other courts of
equity in general. The interest of the country Lords in

emphasizing the issues of privilege inherent in these cases

 

in order to achieve a disruption of business was probably

not shared by the opposition in the Commons. The

oppositions in the two Houses were, in fact, pursuing
different agendas. There was little coordination in their
strategies. Though Shaftesbury had contacts with the
opposition interest in the Commons he had no direct
leadership over them.‘3 While Shaftesbury manipulated the
case of Sherley y. Eggg in order to achieve a dissolution, a
strategy to which he had resigned himself by the second
session,“ it was not in the interest of the Opposition in
the Commons to have Parliament dissolved. They had a
legislative program that they were trying to get through and

it would have been ruined by a dissolution.”

120

The Commons' reaction to these three cases duplicated
their response to Slyngsby y. Hale in 1670. In that case
the Commons had requested that the Lords “have Regard to the

"46

Privileges of this House therein. The Commons initially
did not take notice of the first two cases, Stoughton's and

Crispps', perhaps because the members involved had not

 

brought objections to the notice of the Commons. On May 4,

however, Fagg complained to the Commons. The Commons

Yn‘Tfi._\'

immediately began a search for precedents, looking

particularly at the case of Slyngsby y. Hale ”to see if the

 

Lords can try a member of the Commons." They then sent a
message to the Lords very much like the one sent in the case

of Slyngsby saying that they ”desire the Lords to have

"47

 

regard to the Privileges of this House....

The majority of the peers tried to be careful not to
offend the House of Commons in their reply. Indeed, the
Lords did not immediately respond to the Commons, deciding
first to search for precedents.“ The Committee for
Privileges decided that the Lords had a right to handle such
cases in spite of the fact that a member of the Commons was
involved, citing the precedent of Slyngsby y. Hglp and the
declaration they had made about their judicature after
Slyngsby had withdrawn his case, though this declaration had
not been sent to the Commons in 1670. The Lords resurrected
the declaration, and it was moved that it be sent to the

Commons as part of their answer to the Commons' request for

121

the Lords to have regard for their privileges. However,
perhaps in an attempt not to offend the Commons, the House
voted instead that the message be merely the same one that
had been sent to the Commons in the case of Slyngsby. The
House thus decided on the less belligerent answer, ”That the
House of Commons need not doubt but that their Lordships
will have a Regard to the Privileges of the House of Commons
as they have of their own."” It was at this point that
Shaftesbury and eight other members of the opposition
suggested that the message, when it was sent to the Commons
in 1670, had already given them the impression that the
Lords were unsure of their own Judicature and that it
recognized a claim of the Commons that they had ”some
Privilege in Judicature."50 Although Shaftesbury and others
were more than willing to upset the Commons over this
matter, the moderate nature of the Lords' answer indicates
that the majority of the Lords were interested in preserving
a good relationship with the Commons. The Lords,
nevertheless pressed for the hearing of the cases at hand.
On May 12, they set the date for the hearing of Crispes’
case for May 19.51

The Commons were not satisfied with the response of the
majority of the Lords, though Fagg himself decided to answer
the petition of Sherley on May 12.52 The Commons were
convinced that the Lords' handling of Sherley's case

amounted to a violation of their privileges. They responded

 

‘ JJITJ

.
.

 

 

 

122

in two ways. They first resolved, ”That the Appeal brought
by Dr. Sherley in the House of Lords, against Sir John Fagg,
a member of this House, and the Proceedings thereupon, are a
Breach of the undoubted Rights and Privileges of this

n 53

House. The Commons then sent the sergeant-at-arms to
arrest Sherley, though his attempt to do so, just outside
the Lords’ House, was thwarted by Lord Mohun, who seized his

warrant and read it before the Lordsfi“ The Commons

 

responded by complaining to the Lords, asking them to punish

 

Mohun.” The Lords supported the actions of Mohun and
extended their privilege to Sherley to prevent his arrest.56
The Commons, though disgruntled by the matter, did not

yet deny the propriety of the Lords' jurisdiction in

 

general, though they became more determined to protect the
members' privilege of not having to be tried before the
Lords. On May 15, they reissued their statement that the
case against Fagg was a breach of privilege (even though
Fagg had put in an answer to the Lords) and added another
statement to it, that ”there be no further Proceedings in

[’57

that Cause, before their Lordships. The Commons also took
cognizance of the case of Stoughton y. Onslow, in which a
member of the House of Commons was also involved, and
ordered that Stoughton be arrested for pursuing his case,
though the Lords on discovering the order placed their

protection over him on May l7.”’ The Comons subsequently

requested a conference with the Lords on the case of

123

Sherley. At the conference members of the lower House
reiterated their position that the Lords' consideration of
the case amounted to a breach of the privileges of the
Commons.”

The Lords were at this point becoming concerned with
the attitude of the Commons to their jurisdiction. Though
they had made an attempt to maintain their privilege of
judicature, while still not offending the Commons, the
Commons had, in effect, challenged the right of the Lords to
handle particular appeals, even to the extent of attempting
to arrest the litgants who had brought their cases before
the Lords. It is interesting to note that of the six
reporters (plus the Lord Keeper and the Lord Privy Seal)
chosen by the Lords for the conference with the Commons,
three were associated with the opposition interest and were
later among the most vehement in defending the absolute
judicature of the Lords: Bridgwater, Shaftesbury, and
Holles.60 After this conference, when they realized the
determination of the Commons to maintain their privileges,
the Lords reconsidered the importance of the declaration
that they had earlier made and that Shaftesbury and his
allies had wanted sent directly to the Commons, affirming
their right to handle all cases of appeal, even if a member
of the Commons was involved, and adding the proviso, ”and
from this Right, and the Exercise thereof, the Lords will

not depart.”1 Just after the Lords reaffirmed this

124

declaration they received another message from the Commons,
this time in reference to Stoughton's case, stating that
they “desire[d] their Lordships to have Regard to the
Privileges of the House of Commons.”62

At this stage what had earlier been merely a question
of privilege began to raise questions about the respective
jurisdictions of the Commons and the Lords. Although the
Lords showed themselves unwilling to discuss their
judicature with the Commons, reflections upon their
jurisdiction were inevitable. In the course of these
reflections, the Commons, spurned by the Lords in their
efforts to get them to recognize their privileges, took the
ultimate step of denying the appellate jurisdiction of the
Lords over decrees from Chancery and other courts of equity
ip ppppm, not simply the right of the Lords to handle cases
involving members of the Commons.

The Lords, after receiving the latest message of the
Commons, sent their absolute declaration to the Commons, no
longer concerned with being careful about Offending them.
This signaled a significant change in the Lords' attitude
from their response to the Commons' original complaint in
the case of Sherley. The actions of the Commons, in
attempting to arrest those who had presented a petition to
the Lords, could easily have been construed as a denial of
the Lords' jurisdiction in general, though it is apparent at

this stage that the Commons were primarily concerned with

125

protecting the privileges of their own members. The Lords
responded by ensuring the right of the litigants to pursue
justice in the Lords in security. Already having Sherley
and Stoughton under their protection, the Lords, aware of
the danger that the Commons would arrest the Crispes for
prosecuting their case against Dalmahoy, extended to them,
and to their counsel, the same protection.63 In preparing
heads for a conference with the Commons, they suggested that
the attempt made to arrest Sherley for his appeal violated
the privileges of the Lords and had serious consequences for
the justice of the nation, claiming that removing the
jurisdiction of the Lords from consideration of cases
involving members of Parliament would amount to a failure of
justice.“ The Lords further showed themselves to be
unwilling to discuss any matter of their judicature with the
Commons, responding on May 27 to a request by the House of
Commons for a conference ”concerning the Privileges of their
House in the Case of Mr. Onslowe,” by agreeing, but with the
proviso that ”nothing be offered at the Conference that may
any Ways concern their Lordships’ Judicature.”65 At the same
time, however, the majority of the Lords did not show
themselves particularly willing to use the cases before them
simply to make a point about their privileges to the
exclusion of considering them in a judicious fashion. This

is demonstrated by the petition of Crispps y. Dalmahoy,

which had been partly responsible for the rift between the

126

Houses, and its subsequent dismissal by the Lords,” who saw
no grounds for reversing or setting aside the decree of
Chancery and did not use the case for the purpose of
confirming their right to handle all cases of appeal even if
members of the Commons were involved.

The Commons had in the meantime become even more
determined to defend their privileges against the Lords'
jurisdiction. In addition to attempting to arrest both
counsel and litigants involved in the controversial cases
before the Lords and to claiming the Lords should not try
these cases of appeal involving their members, they resolved
on May 18, “That it is the undoubted Right of this House,
that none of their Members be summoned to attend the House
of Lords during the Sitting or Privilege of Parliament.”67
After the Lords said they would not allow the discussion of
their judicature in the conference desired by the Commons on
the case of Onslow, the Commons not only did not show up for
it but they voted two resolutions that reflected their
frustration over the Lords' refusals to have regard for
their privileges. The Commons resolved on May 28, ”That no
member of this House do prosecute any Appeal from any Court

[’68

of Equity, before the House of Lords. The second
resolution of the Commons was much more drastic; and,

because in the second session they decided not to reaffirm
it, it probably reflected the temporary frustration of the

Commons over the events of the session, as in the second

127

session they decided not to reaffirm it. They resolved,
”That there lies no Appeal to the Judicature of the Lords in
Parliament, from Courts of Equity.””
‘What made the situation even more intractable was the
arrest by the Commons of the counsel of the Crispes -- Peck,
Churchill, Pemberton, and Porter -- who had earlier had
their petition dismissed by the Lords, for violating the
Commons’ privileges and orders.70 This action of the Commons
led the Lords to deny the jurisdiction of the Commons to
make these arrests on matters of privilege. The counsel who
were arrested were soon recovered by the Black Rod from the

l

Sergeant-at-Arms of the Commons.7 IFor the conference that

was to be had on the matter, the Lords chose four members,
three of whom were among the opposition and had identified
themselves not only as defenders of the Lords’ jurisdiction
but also as opponents of the Test Bill and proponents of the
dissolution of Parliament: Bridgwater, Shaftesbury, and

Holles.72 The heads proposed for the conference with the
Commons highlighted the propriety of the Lords' appellate
function and denied any right of the Commons to challenge
it. They called the Commons' orders to have the counsel

arrested

a great Indignity to the King's Majesty in this
His highest Court of Judicature in the Kingdom,
the Lords in Parliament; where His Majesty is
Highest in His Royal Estate, and where the last
Resort of judging upon Writs of Error and Appeals
in Equity, in all Causes, and over all Persons,
is undoubtedly fixed and permanently lodged.73

128

In addition to this high praise for their own judicature,
this committee, dominated by members of the opposition, drew
up a statement on the Commons' jurisdiction that would have
obviously angered the Commons even more. They claimed that
the Commons, by making an order for the arrest of the
Crispes' counsel and thus holding up proceedings, had
violated their privileges, especially as the House of
Commons ”are no Court, nor have Authority to administer an
Oath, or give any Judgement...[and] have no Authority nor
Power of Judicature over Inferior Subjects, much less over

[’74

the King and Lords.... The committee likewise decided to

cite to them the record in which the Commons had claimed not

to wish to participate in the judicature of the Lords in the

75

Roll of Parliament of 1 Henry IV. This record was made

after Richard II had been deposed by Parliament and replaced

by Henry IV in 1399. It stated,

That as Judgements in Parliament belong

only to the King and the Lords, and not

to the Commons, except in case it please

the King out of his Special Grace to
acquaint them with those Judgements in
favour to them; so that no Entry ought

to be made Prejudicial to them, to make
them Parties now or hereafter, to any
Judgements given or hereafter to be given in
Parlament.76

After this conference, which occurred on June 3, the
Commons again had their Sergeant-at-Arms arrest the four
members of Crispe’s counsel.”7 The Lords responded by
sending Black Rod to have them released and also to arrest

the Sergeant-at-Arms for attaching the counsel and then

129

decided to ask the king to appoint a new Sergeant for the
Commons.78 They also decided that they would proceed with no
further matters (except those that Charles specifically
recommended) until their privileges had been ”vindicated."79
The Commons, in the meantime, had created their own
heads for a conference on June 4 upon the matter of the last
conference, in which the Lords had emphasized their
jurisdiction and denigrated that of the Commons. It is more
than likely that the way in which the Lords' committee,
dominated by the opposition members, had denied any role in
judicature for the Commons, had convinced the Commons to
take the action of arresting the counsel, if only to protect
their right to maintain their privileges. The response they
devised to the Lords' messages at the conference of June 3
was to suggest limits on the Lords’ jurisdiction and to
vindicate their own. The Commons attacked each in turn of
the statements that the Lords made on judicature. They
contested the accuracy of the Lords' claim that the king was
in his highest dignity when present in the Lords' House by
suggesting that instead he was ”highest in his Royal Estate,
in full Parliament.”80 The Commons also attacked the Lords’
denial of the Commons' possession of any judicature at all.

The Commons claimed,

Your Lordships do highly entrench upon
the Rights and Privileges of the House
of Commons; denying them to be a Court,
or to have any Authority or Power of
judicature, which if admitted, will leave
them without any Authority or Power to
preserve themselves.81

130

The Commons furthermore denied that the controversial
statute of 1 Henry IV, applied in the way that the Lords
believed it did, for it had been made in circumstances which
were of an unusual political nature.82 The Commons offered a
conference to the Lords, at which they desired to present
these considerations. The Lords, however, did not
immediately respond to the request because they were busy
responding to the second arrest of the four counsel for
Crispe. Black Rod reported that he could not find the
Sergeant of the Commons and thus could not attach him and
also that the Lieutenant of the Tower, acting on the orders
of the Commons, would not release the counsel.” The king
agreed on the same day to replace the Sergeant of the
Commons, and, perhaps inspired by this, the Lords asked the
king to remove the Lieutenant of the Tower because of his
refusal to release the four counsel.“

At this point the king, who had been silent until now,
decided to address the two Houses. Charles had not
interfered before because he was anxious to secure his
legislation and did not want to offend either House. His
decision not to defend the Lords’ jurisdiction was probably
due to the more prominent role that the Commons played in
money bills, for he was in desperate need of revenue at this
time. Certainly he was acutely aware of the predicament in
which the Lords found themselves. Of the forty—nine

meetings ofthe House of Lords in this session he was present

131

at forty-three of them.85 Therefore, if he had disapproved
of their handling of the three petitions in question he had
every opportunity to address the situation. It is probable
that Charles was determined simply to ensure that Parliament
consider his own business. Seeing that the struggle between
the two Houses could not be resolved by themselves, however,
he took a personal role on June 5 in trying to bring about a
reconciliation. Charles addressed what he saw as the chief
cause of the problems, referring to the practices of
Shaftesbury and the rest of the opposition Lords. He said
”I hope you are all convinced that the Intent of all this,
in the Contrivers, is to procure a Dissolution. I confess,

I look upon it as a most malicious Design of those who are

86

Enemies to Me and to the Church of England.... Charles
warned them to compose their differences and suggested “that
whilst you are in Debate about your Privileges, I will not
suffer My own to be Invaded.”87 Unhappily for the Lords,
however, he decided against removing the Lieutenant.

Though the king had recognized the presence of an
opposition in his Parliament, determined to halt his agenda
by contributing to the strife over the Lords' appellate
jurisdiction, each House denied that its own members were
responsible. As the majorities of both Houses were
determined to defend the privileges of their own Houses,

they were concerned to ensure that they did not create

divisions within themselves. The Commons declared, ”That it

132

doth not appear to the House, that any Member thereof hath
either contrived or promoted the difference between the Two

['88

Houses of Parliamentu The Lords were more vehement in
suggesting that no such offending party existed: ”This
House doth unanimously declare, That they are of Opinion,
That no Member of this House hath done any Thing contrary to
his Duty, or any Way contributed to the contriving or
widening the Difference between the Two Houses.”89 The two
Houses then proceeded with their struggle, neither willing
to give way on the question of appeals or the imprisonment
of the counsel. Even when the Lords had the Lord Chancellor

90

issue writs of habeas corpus, the Lieutenant of the tower
refused to release the prisoners.

The king, dissatisfied that his warnings had not been
heeded decided to prorogue Parliament on June 9. T he
business he and the Danby had outlined for the session had
not been carried out, nor had that of the opposition in the
Commons. Only five minor bills had been completed by the
end of the session.91 The king declared that the struggle
between the two Houses was the immediate cause of the
prorogation, though he ascribed this struggle to “the ill

I, 92

Designs of our Enemies. The new session was set to meet on
October 13 .

In this new sesion the struggle between the two Houses
reached its climax. The king and Lord Chancellor Finch were

determined in the opening speeches of the session to stress

133

the need for cooperation and to insist that the Houses
should give priority to state business. The king asked the
Houses to eschew the debates on privilege that had ruined
the last session and called to their attention the need to
proceed on bills for the protection of the Church (though
the Test Bill of Danby was not revived) and grants of money
”to take off the Anticipations which are upon My Revenue,
and for the building of Ships.”3 Finch likewise reminded
them of the need to be attentive to the king's business
instead of matters concerning only the privilege of their
respective Houses.”

The two Houses reacted somewhat differently to these
requests. The Commons did set themselves to the king's
business and for a short while abstained from renewing their
struggle with the Lords. They did not, however, grant the
revenue that the king had requested, except for a very
limited amount for the strengthening of the fleet.” The
opposition in the Commons addressed itself to the
legislation that had been stopped by the prorogation and to
legislation requesting the king to call back English
subjects serving in the French army, which indicated a
growing hostility to France.” The Lords, however, made the
case of Sherley y. Epgg their first priority for the
session. Though this was probably due to the machinations
of Shaftesbury and the rest of the opposition Lords, the

generally favorable response among the Lords may have been

 

 

 

 

134

due to another consideration. Most of the Lords probably
remembered how they had lost their power to handle cases of
original jurisdiction. After Parliament had been prorogued
in 1669 due to the struggle over Skinner y. East India
Company, the Lords did not successfully lay claim to this
jurisdiction again. The Lords may have felt that, if once
they gave up on this particular petition asking for appeal
that the same thing might happen. However, it cannot be
denied that a large part of the defense of the Lords'
appellate jurisdiction, as will be seen, was due to the
action of the opposition group in the Lords. These Lords,
though recognizing that the House of Commons was willing to
lay the issue aside temporarily, revived the issue in order
to force the king to dissolve Parliament.

Shaftesbury's actions in this session indicate that he
and the other opposition Lords wanted to cause problems
between the two Houses, primarily through the revival of the
controversies of the previous session. The issue was
revived when Sherley presented his petition again on October
19.97 There is some indication that he did so for ulterior
motives. In one of the debates on whether to consider the
petition, Danby claimed that, several days before, the king
had requested that Sherley wait to put in his petition and
that Sherley had replied that “he could not, for ... he was
obliged by some persons of honour to bring it in."” It is

possible that this was part of Shaftesbury's scheme to

135

revive the struggle between the two Houses and stop the
progress of business though no direct relationship can be
found between Shaftesbury and Sherley.”9
The House, in its debates on whether to reconsider the

petition of Sherley, was probably significantly influenced
by a major speech of Shaftesbury on October 20. Shaftesbury
raised the concerns of the other Lords about what this
particular petition meant to their future role in the
constitution and also what it meant for the state of the
government over all. He told the Lords that the issue at
stake was a ”Matter...no less then Your whole Judicature””°
and warned them that ”you will quickly grow burdensome, if
you grow useless.”’“’1 He also raised another issue that he
believed could be tied into this matter of appeals, that of
religion. He first raised a concern about the bishops in
particular and their loyalties to the privileges and powers
of the House. This was especially pertinent as it was the
bishops who seemed to be the most vocal in opposing the
acceptance of Sherley's petition. Shaftesbury raised the
concerns of the Peers about the royal control of the bishops
by stating,

I have often seen in this House, that the

Arguments, with strongest reason, and most

convincing to the Lay Lords in General, have

not had the same effect upon the Bishops'

Bench, but that they have unanimously gone

against us in matters that many of us have
thought Essential and undoubted Rights...fi

02

136

In doing so he cast aspersions on the position of the Bishop
of Salisbury, who had suggested that the Lords should.wait
to set a date to hear the case and also had raised doubts
about the right of the Lords to handle this case.103

In addition, Shaftesbury made an effort to convince the
Lords that the principle of divine right monarchy threatened
the present state of the government. He claimed that this
doctrine was behind, among other things, the Test Bill that
Danby had attempted to push through in the previous

4

session.10 Shaftesbury gave the impression that this
doctrine had infected elements of the Court, part of whose
plan was to decrease the power of the Lords. He suggested
that ”tis' not really the interest of the House of Commons,
but may be the inclination of the Court that you lose the
Power of Appeals; but I beg...that your Lordships would take
in this affair, the onely course to preserve your selves."105
The House decided on November 4 to set the date for the
hearing of Sherley's case for November 20.”‘ In the interval
the Lords followed an ordinary course of business, such as
had been apparent before the initiation of this struggle,
namely, considering matters brought before it by the
Commons. They also began to work on proposals that
addressed one of the concerns of the king expressed in his
opening speech.107 IPerhaps more important for the matter

that the Lords were soon to address in the case of Sherley

y. Fagg, they accepted several petitions asking for appeals

137

from Chancery on which they made orders.108

What is very unusual, considering the vehemence of the
struggle between the Lords and the Commons, about this
exercise of the Lords' appellate jurisdiction, however, is
that the Commons raised no objections. The Commons had
earlier ostensibly made it a point of principle that the
Lords possessed no such jurisdiction, even if the defendant
was not a member of the Commons. Here is a clear conflict
between their statements and their actions. As I have
already argued, the dispute over the appellate jurisdiction
of the Lords began as a matter of privilege; the Commons
were simply concerned to ensure that their members were not
called before the Lords without their permission, which was
not given or requested in Sherley's case. It was only when
the Lords had proven obstinate in pursuing the case in spite
of the Commons' objections that the Commons tried to remove
the Lords' appellate jurisdiction over equity wholesale.

At this point in the second session, when the Lords
considered these other petitions, however, the Commons were
again ostensibly willing to compromise with the Lords. If
the Lords had not forced the continuance of Sherley's case,
the Commons might have been willing to drop the issue. The
Commons' failure to complain of the Lords' exercise of the
appellate jurisdiction in the several instances in 1675 when
it did not concern members of the Commons, makes this a

plausible explanation. Again, it seems that the Commons

138

were not opposed to the Lords' appellate jurisdiction
itself, but merely wished to exclude members of the Commons
from it, a stance which, as will be seen, the Lords, pushed
by their opposition members, were not willing to concede.
That the Commons were not opposed to the Lords' appellate
jurisdiction itself receives further confirmation in the
actions they took when they became aware that the Lords were
considering the petition of Sherley again.

The Commons had on November 13 taken cognizance of the
fact that the Lords had taken up Sherley’s petition again
and that they had set a date for it to be heard.109 In spite
of their previous behavior the Commons did not take
immediate action against this decision. It is probable in
this case that the House of Commons was concerned about
preventing another dissolution in order to get the king’s
and their own business through. On November 17 the Commons
debated what to do about the Lords’ action. They had in the
previous session (May 28) resolved that the Lords could not
handle appeals from equity. Again they raised this issue:
”The Question being propounded, That there lies no Appeal to
the Judicature of the Lords in Parliament from Courts of
Equity.” This question did not pass, by a vote of 158
(noes) to 102 (yeas).“° Another proposal put to a vote, on a
matter passed in the previous session, indicates the same
moderate attitude of the Commons:

The question being propounded, That this House
will declare the Vote of the last Session, that

139

whosoever shall appear at the Bar of the Lords'

House, to prosecute any Suit against any Member

of this House, shall be deemed a Breaker and

Infringer of the Rights and Privileges of this

House to now be in Force....111
This question, like the last, did not pass.112 It is likely
that these belligerent proposals did not pass because the
Commons were convinced that, if they pressed the Lords on
the issue, there would be no way to prevent a dissolution.
The moderate attitude of the Commons, however, soon changed.
This resulted from the relative failure of the Commons to
bring the Lords to see their point of view in a conference
that they requested on November 18.113

The majority of the Lords were not inclined to be

cooperative with the Commons. That they were concerned
about their privileges cannot be denied. Shaftesbury's
speech had probably convinced many of them of the necessity
of asserting their rights. Thus they were not cautious
about upsetting the Commons. Not only had they revived
Sherley y. Eagg, but on November 18 they again accepted the
petition of Stoughton, which had been considered in the
previous session, and set November 30 as a date to hear the
case.“‘ This same attitude can be found in their reaction to
the ”Conference for the Preservation of a good Understanding
between the Two Houses” requested by the Commons."15 It was
not auspicious for the success of this meeting that three

key members of the opposition element in the Lords were part

of the committee to confer with the Commons: Bridgwater,

140

116

Dorset, and Shaftesbury. The Commons' representatives

noted the need to proceed on other business and not allow
the matter of privilege to interfere with it, as Charles had

reminded them at the Opening of the session. Sir William

Coventry stated,

The Commons esteem it a great Misfortune,
that, contrary to that most excellent
Advice, the Proceedings in the Appeal
brought the last Session, by Mr. Sherley,
against Sir JOhn Fagg, have been renewed,

and a Day set for hearing the Cause; and
therefore the Commons have judged it the best
Way, before they enter into the Argument

for Defence of their Rights in this Matter,
to propose to your Lordships, the putting

off of the Proceedings in that Matter for
some short Time, that so they may, according
to His Majesty’s Advice, give Dispatch to
some Bills now before them, of great
Importance to the King and Kingdom; which
being finished, the Commons will be ready

to give your Lordships such Reasons against
those Proceedings, and in Defence of their
Rights, as they hope may satisfy your Lordship
that no such Proceedings ought to have been.117

The next item recorded in the Lords' Journal is that they
had agreed to hear Sherley's case.Illa The response of the
Lords at the conference must have been just as final. They
were determined to protect their jurisdiction.

The response of the Commons to this repudiation of
their suggestion was a complete change of the position they
had expressed in the past two days in voting down the two
belligerent resolutions. On the same day after the

conference the Commons declared that

it is this Day Resolved and Declared,

141

that Whosoever shall solicit, plead,

or prosecute any Appeal against any

Commoner of England, from any Court of

Equity, before the House of Lords, shall

be deemed and taken a Betrayer of the

Rights and Liberties of the Commons of

England; and shall he proceeded against

accordingly.119
The Commons had this resolution posted in public.”0 The
Lords, after deciding to postpone the case of Sherley for
two days so that he could find counsel, took cognizance of
this action of the Commons.121 During the commotion over
this matter, one Lord moved to address the king to dissolve
the Parliament. Though this motion failed, twenty-two Lords
entered their protests against not asking for the address,
including most of those who had been part of the protests
against the Test Bill.122 These Lords were determined to
secure a dissolution of Parliament, as opposed to the
upcoming prorogation about which most of the Lords must have
known, and which would not have forced new elections to the
Commons. A new election might have brought members to the
Commons who were more favorable to the religious toleration
espoused by the opposition Lords. Those Lords, however, who
were sincerely interested in exercising the jurisdiction for
which they had fought so hard in the two sessions of 1675
did not have the chance to give either the petition of
Stoughton or Sherley a hearing, as the king chose to

prorogue parliament, a prorogation that lasted for fifteen

months.”’ Charles, with the aid of funds from Louis XIV, did

142

not require the grants of Parliament to survive in the
meantime. Perhaps he felt that this lengthy period would
give sufficient time for the Lords to reconsider their
position and for him and Danby to build a greater court
following in the Commons through patronage.

The Lords, in spite of the long prorogation, awakened
by Shaftesbury's statements of the importance of the
appellate judicature to their existence, did not surrender
their jurisdiction. Though they did not consider the
petitions of Sherley and Stoughton in the new session of
1677, they recommenced accepting petitions asking for
appeals, as they continue to do, though in the altered form
of select Law Lords, in the twentieth century. Thus, unlike
what happened to the Lords’ original jurisdiction,
prorogation after the contestation of the Commons did not
mean that the Lords lost their appellate power. They
accomplished this victory in the face of a king who was more
concerned with the supply of revenue to support his domestic
and foreign policies than with the balance of the
constitution and the efficiency of the legal system.

Whereas James had done much to encourage the Lords to accept
a limited degree of judicial power, perhaps in order to
stifle attempts by the Commons to claim it, Charles was
willing to sacrifice the judicial power of the Lords that
had evolved over the course of fifty years in order to

secure revenue. It is likely that he had been governed by

143

the same opportunistic attitude toward the Lords' judicial
powers in 1669, when he did not defend their right to
exercise an original jurisdiction and chose to prorogue
Parliament twice instead, afraid to side with the Lords for
fear of offending the Commons.

The Commons did not raise a protest against the Lords'
appellate function after this period. Their behavior
concerning the three cases indicates that their real target
was not the Lords' appellate jurisdiction itself but the
Lords' attempt to decide cases that involved members of the
House of Commons. When the Lords considered other cases of
appeal from Chancery in this period the Commons did not
complain. The Lords had been convinced of the need to
maintain their judicial right by Shaftesbury and the
opposition associated with him. Shaftesbury and his
followers were guided by the desire to stifle the Anglican
policies of Danby and force the dissolution of Parliament.
The end result is that the Lords' appellate jurisdiction was
preserved. England now had an established chief appellate
court, for both equity and the common law, confirmed by the

victory of the Lords in 1675.

IV . CONCLUS ION

The argument that I have pursued throughout this
exploration of the growth of the Lords' appellate
jurisdiction is that members of the Commons were not opposed
to its inception or its growth. If anything, the Commons had
reason to favor this development. As has been demonstrated,
the lower House itself had attempted to devise a solution to
the problem that this element of the Lords’ judicature
eventually solved: the lack of an adequate hierarchy for
appeals from Chancery and other courts of equity. Because
of their lack of an adequate precedent for fulfilling a
judicial role, as demonstrated by their dealings with
Mompesson and Floud, the Commons could not fulfill this
need. The Lords however, possessed a historical
justification that would provide fertile ground for the
exercise of an appellate jurisdiction.

The development of the Lords' appellate jurisdiction,
however, was very slow in the 1620's. The Lords in general
were unsure about the propriety of their jurisdiction and
were hesitant in making orders on petitions asking for

redress of a decree given in Chancery. That they did accept

144

145

such petitions, however, does suggest, along with other
things, that the Lords were becoming more confident of their
right to review such cases as the 1620's progressed. That
the Commons directly encouraged this development is
difficult to prove, though there is circumstantial evidence
that members of the Commons sent petitions asking for
justice from their own committees to the Lords. The two
most convincing pieces of evidence that suggest that the
Commons approved of this development is that the Commons saw
the need for such an appellate jurisdiction and that they
did not complain when the Lords initiated this function.

The same is true for the king.

As the Lords' appellate jurisdiction developed there
was the same lack of dissent from their proceedings. The
Lords began to exercise a fuller appellate jurisdiction in
1640, and, with the exception of the period of the
Interregnum, never lost this function, laying aside decrees
of the Chancellor, overturning them, and ordering further
proceedings before him. In the process the Lords were not
challenged, either by the Commons or by the king. If the
argument is made, as for example by Hargrave, that this was
true in the 1640's only because of the political
circumstances of the time and would not be allowed in normal
times, what is one to make of the similar activity of the
Lords without protest in the Restoration period, until 1675?

The only significant attacks by the Commons on the

146

appellate jurisdiction of the Lords came when the Lords were
perceived to be infringing on the privileges of the Commons.
Though the Commons in 1675 declared that the House of Lords
did not have any appellate jurisdiction from Chancery and
other courts of equity, their primary reason for doing so
was to end the assault on their privilege, which they
perceived in the struggles over Sherley y. Eagg, Stouqhton
y. Onslow and Crispes y. Dalmahoy. That the matter of
privilege was the primary cause of the Commons' opposition
can be demonstrated by the fact that the Commons did not
protest the consideration by the Lords of appellate cases
that did not involve members of the Commons in the period
that I have discussed. Indeed, even after they denied the
appellate jurisdiction of the Lords over all commoners in
1675, they did not complain when the Lords handled appeals
that did not involve members of the Commons. Only cases
involving members of the Commons seemed to spur the Commons
into action.

Another factor that was responsible for the assaults by
the Commons on the Lords’ jurisdiction was the context in
which these three cases were considered. The opposition
politics of Shaftesbury and other peers exacerbated the
struggle. Shaftesbury used the three cases as a tool to
force the dissolution of Parliament and thus prevent the
success of the Anglican agenda of Danby and the Court. In

doing so Shaftesbury perhaps helped to save this element of

147

the Lords’ jurisdiction. His encouragment of the Lords to
defend their jurisdiction over appeals must be considered

one reason for the success of the Lords in defending their
appellate jurisdiction.

However, it is also unlikely that the Commons would
have attacked the Lords' jurisdiction to the extent that
they did if the Lords had given way on these three cases.
As has been suggested, they showed no sincere indication of
being opposed to this element of the Lords' judicature
except as it related to their own privileges and
jurisdiction. In fact, they had an interest in maintaining
a means by which litigants who were unhappy with their
decrees in Chancery or other courts of equity could secure
an appeal. The Commons throughout this period continued to
consider means by which to reform the court of Chancery.
However, they did not, after the early 1620’s, except during
the Interregnum, suggest that another means of appeals
should be created, which demonstrates that they recognized
the validity of the Lords’ jurisdiction as well as the
necessity of it.

In short, the attack on the appellate jurisdiction by
the Commons in 1675 was an aberration, and the Commons
throughout the period from 1621 to 1675 were not inimical to
the Lords' handling of appeals from Chancery and other
courts of equity. The Commons did not oppose this

development because they recognized the need for such a

148

function and because they were aware that they could not
fulfill the need themselves.

In a more general sense, however, this thesis has
demonstrated something more significant: that a fruitful
and accurate study of Parliament in the Stuart period can
only be accomplished through an equal consideration of both
Houses. This period did not see an insignificant and
powerless House of Lords. Historians searching for the
moment when the Commons began its progress to ultimate
sovereignty in the nation have overlooked the viability of
the Lords in the seventeenth century, especially in the
Restoration period. This attitude created a tremendous hole
in the historiography of Parliament, filled only by the
scattered and dated works of Turberville and Firth, and by a
few recent, bold efforts to fill in the gap by scholars such
as Flemion, Foster and Hart. Much more needs to be done.

As the House of Lords in modern Britain, relatively
constitutionally powerless, has recently received
recognition for its value as a forum for intelligent and

necessary debate, so the House of Lords of the seventeenth

century, possessing legislative power equal to the Commons

in all but revenue matters and exercising the role of chief

appellate court of the nation, needs to be given more

recognition for the important political and constitutional

roles it played. This thesis has made an effort to

demonstrate those roles and has revealed the Lords as a

149

potent institution that occupied a position in the
seventeenth-century constitution equal in importance to the

House of Commons.

ENDNOTES

ENDNOTES

Introduction

‘ These two sessions were from April 13 to June 9 and from
October 13 to November 22.

2 The main courts of equity included Chancery, the
equitable side of the Exchequer and the Court of Requests,
though the latter fell into disuse during the Civil War.
Many minor courts also possessed an equitable jurisdiction,
which were, like the major courts of equity, liable to
appeal to the House of Lords, though usually not in
practice. The courts of the Cinque Ports, for example,
possessed such a jurisdiction. Some of the Palatinates also
possessed an equitable jurisdiction, such as the Duchy of
Lancaster and the Palatinate of Durham, which develOped
chanceries of their own. William Holdsworth, A History of

English Law, Vol. I, 7th ed. (London: Metheun & Co., 1956),
111.

3 Much of the secondary literature refers to Sherley as
Shirley.

‘Earls of Dartmouth and Hardwicke, Speaker Onslow, and

Dean Swift, eds., Bishop Burnet's History of His Own Time:
With Notes, Vol. II (Oxford: University Press, 1833), 76.

5J. P. Kenyon, viewing the dearth of secondary literature
on the House of Lords, has gone as far to state that “the
study of the House of Lords in the reigns of Charles II and
James II is not so much in its infancy as in the womb." gag
Stuart Constitution, 2d ed. (Cambridge: Cambridge
University Press, 1988), 412.

6One blatant and frustrating example of this in the recent
historiography of the period is found in John Miller's
Article: ”Charles II and His Parliaments, " Transactions
of the Royal Hiatorical Society 32 (1982). Despite the
title, the discussion is solely on the House of Commons.

150

151

7Corinne Comstock Weston, English Constitutional History
and the House of Lords, 1556-1832 (New York: Columbia
University Press, 1965). This theory of mixed
government/monarchy was popularized by Charles I in his
answer to the Nineteen Propositions. Weston argues that
this was the dominant theory of government until the Great

Reform Bill of 1832 and the firmer establishment of cabinet
government.

eCharles Harding Firth, The House of Lords during the

Civil War (London, New York, Bombay and Calcutta: Longmans,
Green and Co., 1910), 296.

9 William Holdsworth, A History of English Law, Vol. VI
(London: Metheun and Co. Ltd., 1922), 250.

” Holdsworth, Vol. VI, 250-251. Holdsworth suggests that
there are instances which call into question such a monopoly
of the Commons over money bills. He points out that in
1472, for example, the Commons initiated a grant for the
commons of England, while the Lords initiated one for the
peers. Maxwell p. Schoenfeld suggests that the Lords and
the Commons ”had traditionally voted their own taxes, though
in the same bill." Tag Restored Houaa of Lords (The Hague
and Paris: Mouton & Co., 1967), 170.

”Holdsworth, Vol. VI, 250n — 251n.

12Kenyon, 417.

” Allen Henry Horstman points out the difficulty of
deciphering which institution is referred to in medieval
records, as different names were often given to the same
institution, and the same term was often used to describe
different institutions. He suggests that this would have
given great trouble to those like Coke who were searching
medieval precedents. For example, the ” small council and
the Great Council were Often referred to as ‘curia regis,
'king’s council', ’ consilium regis', ‘consilium privatum
et assiduum’, consilium ordinaripm', ' magnum consiligp',
’commune consilium’ and even 'witengamot.’" ”Justice and
Peers: The Judicial Activities of the Seventeenth—Century
House of Lords" (Ph. D. diss., University of California,
Berkeley, 1977), 23. This would have had particular bearing
on those, such as Coke, who were looking for judicial
precedents especially, relating to this thesis, in regard to
the judicial powers of the Lords.

 

152

“ Sir Matthew Hale and Francis Hargrave, in the preface
to Hale’s work, though arguing against the applicability of
a strict parallel between the House of Lords and this body,
provide an analysis of the similarities of the two.
Jurisdiction of the House of Lords or Parliament (London: T.
Cadell, Jun. and W. Davis, 1796).

”.Allen Horstman, ”A New Curia Regis: The Judicature of
the House of Lords in the 1620's," Historical Journal. 25
(1982): 419. Horstman suggests that ”[i]n many ways the
House of Lords with its judicature in the 1620's resembled a
curia regis of the Middle Ages, both in function and intent-
—a body assisting the king to govern the realm."

1°Robert Zaller, The Parliament of 1621, A Study in

Constitutional Conflict (Berkeley: University of California
Press, 1971), 90.

" Ibid., 90-91.

m J. Stoddart Flemion, ”Slow Process, Due Process, and the
High Court of Parliament: A Reinterpretation of the Revival
of Judicature in the House of Lords in 1621," The Historical
Journal 17 (1974): 9.

” Ibid., 9n.

20Horstman, ”A New Curia Regis," 413. Horstman points out,
”After 1621 few petitions sought private bills...One reason
for the popularity of petitions to the lords arose because
the House, using its judicature could give direct relief to
a petitioner, whereas the House of Commons could only
prepare a list of grievances to submit to the king.”

” Elizabeth Read Foster, The House of LordsL_1603-1649
(Chapel Hill and London: University of North Carolina Press,
1983), 110. James Hart, Justice Upon Petition: The House
of Lords and the Reformation of Justice, 1§;1-1675 (London:
Harper Collins Academic, 1991). Hart provides a thorough
analysis of the process by which the Lords acquired a
jurisdiction over petitions asking for justice, though he
chooses not to discuss how this evolution interacted with
the expressed concerns of the Commons; nor does he speculate
on how initial cooperation between the two Houses over the
Lords' jurisdiction over petitions led to conflict.

153

” Flemion, ”Slow Process, Due Process, and the High Court
of Parliament," 3.

” Firth, 295.
“ Foster, 188.

25Relf, xxxi.

26Flemion, ”Slow Process, Due Process, and the High Court
of Parliament," 16.

2’Haley, K. H. D., The First Earl of Shaftesbury (Oxford:
Clarendon Press, 1968), 350-351, 398-399.

“.A. S. Turberville, ”The House of Lords under Charles II,

Part I," The English Historical Review 44 (January, 1929):
406.

2"Ibid.
3°Journals of the House of Lords, Vol. XIII, 39.

m I have chosen to utilize the original spelling of quoted

passages throughout this thesis. No corrections have been
made.

32"The Earl of Shaftsbury’s Speech in the House of Lords

the 20th. of October, 1675,” in Two Speeches (Amsterdam,

1675), 4. This speech can be found in the Main papers of
the House of Lords, Reel 95, n. 3389.

33Dartmouth, 77.

“ LJ XI, 299.

I. Necessity and Opportunity:
The Foundations for a Supreme Court -- the 1620's

‘ Exceptions to this rule are Flemion, Hart and Horstman.

’Jess Stoddart Flemion, ”The Nature of Opposition in the
House of Lords in the Early Seventeenth Century: A
Revaluation," in Peers. Politics and Power: The House of

Lords, 1603-1911, eds. Clyve Jones and David Lewis Jones
(London and Ronceverte: The Hambledon Press, 1986), 8.

3The cognizance of the Lords over writs of error had
fallen out of practice in the sixteenth century.

‘Holdsworth, Vol. I, 370.

5Luke Owen Pike, A Constitutional History of the House of
Lords (London: MacMillan and Co. , 1894), 292.

° Holdsworth, Vol. I, 214.

7 Foster, 180

8 Ibid., 179.

9 Ibid.

” Horstman, ”Justice and Peers”, 298.

” Foster, 182.

” Horstman, ”Justice and Peers", 298.. This may have
resulted from the fact that the king's Signature was no

longer required to secure such a writ [299].

” Calendar of the Journals of the House of Lords. From the
paginninq of the Reign of King Henry VIII to 30th August
1642; and from the Restoration in 1660, to let January 1808
(London: G. Eyre and A. Strahan, 1810), 733-735.

“ Holdsworth, Vol. VI, 95.
” Ibid., 93.

16Kenyon, 28-29.

” Foster, 137.

154

155

18LJ III, 537.

” Francis Hargrave, Preface to his edition of Matthew
Hale's Jurisdiction of the Lords' House or Parliament
(London: T. Cadell, Jun. and W. Davies, 1796), xvi-xvii.

” LJ III, 110.

” Quoted in , Elizabeth Read Foster, ”The Procedure of
the House of Commons against Patents and Monopolies, 1621-
1624, in Conflict in Stuart England, ed. William Appleton
Aiken and Basil D. Henning (London, 1960), 80 (n. 24).

” See, for example ”Conflict or Collaboration? Chancery
Attitudes in the Reign of Elizabeth I," American Journal of

Legal History 5 (January, 1961).
” Relf, xiii.
“ Ibid, xiv-xxv.

” See ”The conflict between the court of Chancery and the
courts of common law," in A History of English Law. Vol. I
(London: Metheun and CO. Ltd., 1956), 459-465.

” Jones, 12.

27G. W. Thomas, ”James I, Equity and Lord Keeper
Williams," English Historical Review 91 (1976): 512.

” Thomas, 512 (quoting G. W. Keeton and L. A. Sheridan,
£92121 [London, 1969], 17.).

” Ibid. (quoting D. M. Kerley, An Historical Sketch of
the Equitable Jurisdiction of the Court of Chancegy
[Cambridge, 1890], 724-726.).

' ' 11 on the
” Ibid. 515 (quoting P. St. J. Langan, Maxwe
Interpretation of Statutes [12th. edn. , London, 1969],
236.).

 

” Holdsworth, Vol. I, 461.
” Ibid., 463.
”Thomas , 513.

“ Ibid., 514.

156

35Flemion, ”Slow Process, Due Process, and the High Court
of Parliament" , 7.

” Holdsworth, Vol. I , 423-424.

” Ibid., 426.

” Ibid., 424.

” Wallace Notestein, Frances Helen Relf and Hartley

Simpson, Commons Debates, 16;;, Vol. VII (New Haven: Yale
University Press, 1935), 205.

“ Zaller, 90.

“ Notestein, Vol. IV , 193. This volume of Commons
Debates. 1621 is the diary of John Pym entitled, ”All the
Remarkable Passages of the Things Done in the Lower House of
Parliament."

 

” Notestein, Vol. IV, 193—194
“ Ibid., 193.

“ CJ I, 582.

” James S. Hart, ”The House of Lords and the Appellate
Jurisdiction in Equity, 1640-1643," Parliamentary Histopy
2 (1983): 59.

“ Ibid.

" Ibid.

“ Ibid.

‘°Ibid.

50Ibid.

“ Ibid.

52Thomas, 522.

” CJ I, 584.

“ Notestein, Vol. VII, 587.

157

” CJ I, 737.

” Maija Jansson and William B. Bidwell, eds., Proceedings
in Parliament, 1625 (New Haven and London: Yale University
Press, 1987), 215.

57”Justice and Peers"
“ Ibid., 34.

” There were, in fact, three distinct courts of Exchequer
Chamber. Of the other two, one handled appeals from the
Exchequer itself. The other was ”an informal assembly of
the common law judges to discuss difficult issues." A
difficult case might be sent here, and after debate the
decision of these judges was to be followed by the original
court that had raised the difficult point. Ibid., 45-46.

” Holdsworth, Vol. I, 244.
“ Ibid., 123-124.

” Thomas, 525.

” Relf suggests that this recognition, caused by these
cases, forced the Commons to turn to the Lords in order to
establish the Parliament as a court superior to equity.
(xiii-xviii). These cases will be explained shortly.

“ Relf, xiii.
85 Ibid. , Xiii-XiVo
” Ibid., xiv-xv.

" LJ III, 33—72.

” Lady De Villiers, ed. , ”The Hastings Journal of the

Parliament in 1621," in Camden Miscellany Vol. .XX, ed. R.
L. Rickard (London: Offices of the Royal Historical
Society, 1953), 27—28 (my italics).

” Notestein, Vol. IV, 211; Flemion, ”Slow Process, Due
Process, and the High Court of Parliament," 13.

" Notestein, Vol. IV, 211
" Ibid., 268.

" Ibid.

158

” Ibid., 269-270.
" Ibid.
”Ibid., 285.

” Ibid., Vol. II, 329.

" Flemion, ”Slow Process, Due Process, and the High Court
of Parliament," 13.

” Relf, xv.
”Hargrave, xvii.
80LJ III, 111.
81LJ III, 111-134.

82Flemion, 14.

83An example of this consideration of petitions involving
cases from Chancery is Mrs. Thomas’s case in 1624, which was
a “complaint about corruption of the Lord Keeper" and a
claim that the decree he gave was ”unjust." The Committee
for Courts of Justice considered the petition and declared
that ”the Decree is good and just." CJ I, 767.

“ CJ I, 766.
“ Ibid.

” Robert C. Johnson and Maija Jansson Cole, eds. ,
Commons Debates, 1628 Vol. II (New Haven and London: Yale
University, 1977), 540. Mary Frear Keeler, Maija Jansson
Cole and William B. Bidwell, eds. , Proceedings in
Parliament, 1628 Vol. VI ( New Haven and London: Yale

University Press, 1983), 5.

 

" Flemion, ”Slow Process, Due Process, and the High Court
of Parliament", 14.

” LJ III, 88.

89Ibid.

” LJ III, 101-102, ”The Petition of the Fisherman
Dreggers..."

159

“ Relf, xx.

92Third Report of the Royal Commission on Historical
Manuscripts, Appendix, 23.

” Ibid.

“Flemion, ”Slow Process, Due Process, and the High Court
of Parliament," 3, 8.

” Flemion, ”The Nature of Opposition”, 13.
96 Ibid. ’ 8—90
W Relf, xiii.

” Horstman, 417-418.

II. The Appellate Jurisdiction of the Lords:
1621-1675

‘ CJ IX, 347.

2 LJ III, 141.

3 Ibid.

‘ LJ III, 157.

sHorstman, ”A New Curia Regis", 413. The handling of
appeals from Wards, Star Chamber and High Commission, was
relatively infrequent and ended when these courts had been

abolished or had fallen into disuse in the 1640's (The Court
of Wards was abolished only after the Restoration).

° Hargrave, xxix.
7 LJ III, 179.
3 Ibid.

9 Samuel Rawson Gardiner, ed. , Notes of the Debates in
the House of Lords, Officially Taken by HenryEISing Clerk
of the Parliaments, 1621 (Westminster: J. B. Nichols and
Sons), 107.

” Ibid.

” Ibid., 108.

” Relf, xx.

.4

3 Gardiner, 107.

” Ibid., 108.

—‘

5Ibid., 107.

” Ibid., 108.

_A

7 LJ III, 180.

” Gardiner, 109.

_A

9 LJ III, 189.

160

161

” Ibid.

21Ibid., 191.
22Ibid.

” Gardiner, 120.
2‘Foster, 15.

” Horstman, 416.
” LJ III, 415.

" Ibid.

28Ibid, 416.
”Ibid.

” Hargrave, xxxviii.
” Hart, 46-69.

32 LJ III, 363.
”Hart, 54.

“ Hargrave, xl-xli.
” Ibid.

” Hart, 54.

” Ibid.

” ibid.

” Ibid.

“ Ibid., 54-55.
“Relf, xxix.

” See, for example, Starkey y. Starke , LJ III, 831.

162

“ Stuart E. Prall, ”Chancery Reform and the Puritan
Revolution,” American Journal of Legal Histogy. 6 (January
1962): 58.

“ Ibid.

“ Hargrave, 1x (n).

“ Ibid., lvii.

" Hart, 56.

“ Ibid., 56-57.

“LJ IV, 255. Quoted in Hart, 58.

” Hart, 66.

“ Ibid.

52Ibid.

” See, for example Maya y. Bannister (28 July 1641),
Calendar, 26, and the petition of Lady Hastings (21
February 1641), ibid. Also Langham y. Lympgy (14 May 1644),

LJ VI, 553

” LJ X, 584.

“ See, for example, the cases of Lord Fauconbridge (11
January 1641), and Sir William Russell (16 May 1642).

Calendar, 26.
” Prall, 28.
5’Hargrave, lxi.
” Ibid., lxi-lxii.
” Firth, 173.
“ Hargrave, lviii.
“ Hart, Justice, 219-221.

” Holdsworth , Vol. I, 433.

” Prall, 30.

163

M Ibid., 37.
“ Ibid., 42.
“ Ibid., 44.

" Cobbett's Complete Collection of State Trials. Vol. VI
(London: T.C. Hansard, 1810 I. 726-727 (n).

” Calendar, 635-638.
” Hargrave, xci.

” Ibid., xciv (n).

" Calendar, 635-638.

72See, for example, LJ X1, 199, Cary y. Cromwell (December
5, 1660).

” Horstman, ”Justice and Peers", 433.
" LJ XI, 630 (nga;t y. Wypp).
75Ibid., 631.

” Ibid.

" Ibid.

78Charles II, in order to end the strife between the two
Houses over this case, ordered them to erase every entry

dealing with it from their journals. The most complete
accounts of it the can be found in Cobbett’s Complete

Collection of State Trials, Vol. VI , and in Denzil Holles'
work, The Grand Question Concerning the Judicature of the
House of Peers Stated and Argued. And the Case of Thomaa
Skinner... (London: Richard Chiswel, 1669).

” Holles "The Grand Question," 5.

“ Ibid., 1-18.

“ Ibid., 19.

” Cobbett, 716.

” Ibid., 719.

164

“ Ibid.
“ Hollis, Grand..., 35-38.
“ Cobbett, 726.

” Ibid., 728 (n).”That the proceedings of the House of
Lords, upon the petition of Thomas Skinner, Merchant ,
against the governor and company of Merchants of London
trading to the East Indies, Sir William Thompson, and
several other members of the House of Commons, being members
of the said company, -- are a breach upon the Privilege of
the House of Commons."

88Ibid. , ”That the House of Lords assuming and exercising
a jurisdiction, and taking cognizances of the matters set
forth and complained of in the petition of Thomas
Skinner...-- the said cause coming before the Lords
originally only upon the complaint of the said Thomas
Skinner, and the matters in the said petition complained of,
concerning the taking away the said petitioner’s ship and
goods, and assaulting his person, being relievable in the
ordinary courts of law; --is contrary to the law of the
land, and tends to the depriving of the subject of the
benefit of the known law, and the introducing of an

arbitrary way of proceeding.”

” Ibid. ,"That the House of Lords, in the cause depending
before them,...allowing of affidavits taken before masters
of the Chancery, and a judge of the Admiralty, as proof in
the said cause, wherein also the Governor and Company had no
liberty to cross-examine the said persons making such . .
affidavits; and the House of Lords not granting a commiSSion
to the said Governor and Company for the examination of
their witnesses, the same being desired by the said Governpr
and Company , is illegal, and a grievance to the subjects

165

”Ibid. , 726-728. ”That the House of Lords taking
cognizance of, and their proceedings upon the matter set
forth in the petition of Thomas Skinner merchant against
the governor and company of merchants of London trading to
the East Indies, concerning the taking away of the
petitioner's ship and goods, and assaulting his person, and
their lordships over—ruling the plea of the said Governor
and Company, the said cause coming before that House
originally, only upon the complaint of the said Skinner, and
being a common plea, is not agreeable to the laws of this
land, and tends to deprive the subject of his right, ease
and benefit due to him by the said laws." 2. ”That the Lords
taking cognizance of the right and title of the land in the
petition mentioned, and giving damages thereupon agains the

said governor and company is not warranted by the said laws
of this land."

“ Holdsworth, Vol. VI, 268-269.

” Ibid., 268.

” Apparently Skinner was still attempting to secure
relief in the 1690's . Horstman, ”Justice and Peers", 373.

“ Holles, 19.

” Ibid., 49—50.
“ CJ IX, 132.

” Ibid., 133.

” LJ XII, 301.

” Ibid. , 348.

 

 

 

III. Court, Country and the Appellate Controversy of 1675

‘ See for example, the entry on May 22, 1624, “Sir James
Parrot sent for [by] Lords: Will not do it, without Leave of
the House. Left to him to do as he will in it." CJ I, 793.

2 LJ XIV, 39.

3 See, LJ XII, 653, 729; XIII, 4, 37.

‘Richard Davis, ”The 'Presbyterian’ opposition and the
emergence of party in the House of Lords in the reign of

Charles II," in Party_and Management in Parliament, ed.
(New York: St. Martin’s Press, 1984), 13—17. K. H. D.

Haley, The First Earl of Shaftesbury (Oxford: Clarendon
Press, 1968), 349-402.

5 Davis, 1

° Ibid., 4.
7 Ibid., 8.
° Ibid., 12.
9 Ibid.

m Ibid.

“ K. H. D. Haley, The First Earl of Shaftesbury (Oxford:
Clarendon Press, 1968), 350.

” Ibid., 351.

” Miller, 7.

—‘

‘ Haley, 358-360.
“ Ibid., 373.

” LJ XII, 653-654.

166

 

 

 

«an... .

‘—'—.——

 

167

” Ibid, 659.

R Davis, 13.

W Davis has analyzed these same protests to the Test Bill
and has concluded that they do indicate the existence of an
opposition group under Shaftesbury, though he neglects to
elaborate in any depth on his findings in discussing the
1675 sessions. His concern is to establish the existence of
an opposition group to religious intolerance, not to discuss

the bearings that this presence had on the the judicial
struggles in 1675.

2°LJ XII, 656. These were Clarendon, Delamere, Halifax,

Mohun, Paget, Salisbury, Shaftesbury, Stamford , P. Wharton,
and Winchester.

21Ibid., 665.

” These were Ailesbury, Bedford, Howard Earl of
Berckshire, J. Bridgwater, Bristol, Buckingham, Clarendon,
Delamere, Basil Denbigh, Dorset, Ro. Eure, Halifax, Holles,
Mohun, will Paget, Will. Petre , Grey De Rolleston,

Salisbury, Saye and Seall Shaftesbury, Stamford, P.
Wharton, and Winchester. Ibid.

” Ibid.
“ LJ XII, 669.
” Ibid.

” Ibid., 671.

27These were Ailesbury, Audley, Bedford, Howard Earl of
Berkshire, J. Bridgwater, Buckingham, Clarendon, Delamer,
Basil Denbigh, Dorset, R. Eure, Fitzwalter, Halifax,
Holles, Mohun, Grey De Rolleston, Salisbury, Saye,
Shaftesbury, P. Wharton, and Winchester. Ibid.

” These were Bedford, Howard Earl of Berkshire, J.
Bridgewater, Buckingham, Clarendon, Delamer, Basill
Denbigh, Dorsett, R. Eure, Mohun, Salisbury,

Shaftesbury, Stamford, P. Wharton and Winchester. Ibid.
677.

l

 

 

 

 

168
” LJ XIII, 33.

” ”Two Speeches” in the Main Papers of the House of Lords
, Part 5 (6 Jan 1673—3 May 1675) Reel 95 (Amsterdam,
1675), 15-16 ( This reel contains material that commenced
within the above dates and continues until that matter was
completed. Hence it contains this pamphlet, which was
printed long after May 1675)

” These were: Howard Earl of Berkshire, J. Bridgewater,
Buckingham, Chesterfield, Clarendon, Delamer, Dorsett,
Halifax, Mohun, Newport, Will. Petre, Grey De.

Rolleston, Salisbury, H. Sandys, Shaftesbury, Stamford,
Townsend, Westmoreland, P. Wharton , Winchester, and
Yarmouth. LJ XIII, 33.

” Ibid.

” LJ, XIII, 39.

“ CJ IX, 330.

” LJ XII, 680—681.

” Ibid., 681.

3’Ibid.

” ”Two Speehes", 1-12.
” LJ, XII, 663.

“ LJ, XII, 666.

“ LJ, XII, 673.

“ Eighth Report of the Royal Commission on Historical
Manuscripts Part 1, (Darlington: North of England
Newspaper CO. Ltd., 1907 ), Appendix, 137a.

“ Haley, 398.
“ Ibid., 393, 398.
“ Ibid., 398.
‘“CJ IX, 132.

" Ibid. , 330.

 

' D71?-'Vu
Ca.

 

 

169

” LJ, XII, 679.
”Ibid., 680-1.
” Ibid., 681.

” Ibid., 689.

U1
I\

" Ibid.

” CJ IX, 337.

” LJ XIII, 691.
” Ibid.

56Ibid., 692.
"CJ IX, 338.

” LJ XII, 694.
” Ibid.

” Ibid.

6‘Ibid.

” Ibid, 694-695.
” Ibid., 698.
“ Ibid., 700.
” Ibid., 706.
” Ibid., 709.
W CJ, IX, 340.
” Ibid., 347

” Ibid.

” LJ XII, 713.

" Ibid., 715.

 

 

 

 

170

" Ibid. , 718. Holles’ own role in defending the Lords'
judicature was more than simply a part of his official
action in the House of Lords. He also penned a lengthy
treatise on the subject: The Case Stated Concerning the
Judicature Of the House of Peers In the Point of Appeals
(Amsterdam, 1675).

” Ibid., 718.
" Ibid.
” Ibid., 719.

”Hollis, The Case Stated Concerning the Judicature of the
House of Peers in the Point of Appeals, 29-30.

" LJ XII, 720.
” Ibid., 722.

” Ibid., 723.

” CJ IX, 354.

“ Ibid.

” Ibid.

83LJ XII, 723.

“ Ibid.

“ Davis, 13.

” LJ XII, 725.
V Ibid.

“ CJ III, 355.
” LJ XII, 726.
W Ibid., 727.

“ Ibid., 729.

” Ibid.

171

” LJ XIII, 4.

” Ibid., 4-5.

“ Haley, 396-397.
“ Ibid., 398.

” LJ XIII, 8.

” Haley, 394.

” Ibid., 393-394.
‘” Two Speeches, 4.
‘m Ibid.

‘“ Ibid., 9.

‘” Ibid., 1.

‘“ Ibid., 11-12.
‘” Ibid., 12.

‘” LJ XIII, 12.

107Ibid. , 22. ”Heads for Securing the Protestant
Religion.”

.0. LJ XIII, 15. Denyes y. Sir A. F___razer and agile! Y-
Bulkle .

109CJ III, 375.
‘” Ibid., 379.

‘” Ibid.

‘” Ibid. The division is not reported in the Journal for
this vote.

‘” Ibid., 380.
‘“ LJ XIII, 28.

‘” Ibid., 29.

116

117

118

119

120

121

122

123

172

Ibid.

Ibid.

Ibid.

CJ III, 381.
Ibid.

LJ XIII, 32.
Ibid., 33.

Ibid., 35.

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