And these were not barely upon the Bene Placita of the Lords, but were De jure, as appears by those former Judgments given in the Lords House in Parliament; and the Reason is evident; First, Because, if such a Course of extraordinary Proceeding should be had before the Lords in the first Instance, the Party should lose the Benefit of his Appeal by Writ of Error, according as the Law allows; and that is the Reason, why even in a Writ of Error, or Petition of Error upon a Judgment in any inferior Court, it cannot go Per Saltum into Parliament, till it has passed the Court of King's-Bench; for that the first appeal is thither.
Secondly, Because the Subject would by that Means lose his Trial Per Pares, and consequently his Attaint, in case of a Mistake in Point of Issue or Damages: To both which he is entitled by Law.
And although some Petitions of this Nature have been deterwined in that Manner, yet it has been (generally) when the Exception has not been started, or at least not insisted upon:
And One Judgment in Parliament, that Cases of that Nature ought to be determined according to the Course of the Common Law, is of greater Weight than many Cases to the contrary, wherein the Question was not stirred: Yea, even tho' it should be stirred, and the contrary affirm'd upon a Debate of the Question, because greater Weight is to be laid upon the Judgment of any Court when it is exclusive of its jurisdiction, than upon a judgment of the same Court in Affirmance of it.
Now as to Matters Criminal, whether Capital or not, they are determinable by the Common Law, and not otherwise; and in Affirmance of that Law, where the Statutes of Magna Charta, cap.
29. 5 Ed. 3. cap. 9. 25 Ed. 3. cap. 4. 29 Ed. 3. cap. 3. 27 Ed.
3. cap. 17. 38 Ed. 3. cap. 9. & 4o Ed. 3. cap. 3. The Effect of which is, That no Man shall be put out of his Lands or Tenewents, or be imprisoned by any Suggestion, unless it be by Indictment or Presentment of lawful Men, or by Process at Comwon Law.
And by the Statute of 1 Hen. 4. cap. 14. it is enacted, That no Appeals be sued in Parliament at any Time to come: This extends to all Accusations by particular Persons, and that not only of Treason or Felony, but of other Crimes and Misdemeanors.
It is true, the Petition upon which that Act was drawn up, begins with Appeals of Felony and Treason, but the Close thereof, as also the King's Answer, refers as well to Misdemeanors as matters Capital; and because this Record will give a great Light to this whole Business, I will here set down the Petition and the Answer verbatim. Vide Rot. Parl. I Hen. 4. No. 144.
Item, Supplyont les Commens que desore en avant nul appele de Traison ne de autre Felony quelconq; soit accept ou receive en le Parlement ains en vous autres Courts de dans vostre Realm dementiers que en vous dits Courts purra estre Terminer come ad ote fait & use ancienement en temps de vous noble Progeniteurs;Et que chescun Person qui en temps a venir serra accuse ou impeach en vostre Parlement ou en ascuns des vos dits Courts per les Seigniors & Commens di vostre Realm ou per ascun Person &defence ou Response a son Accusement ou Empeachment & sur son Response reasonable Record Judgment & Tryal come de ancienement temps ad estre fait & use per les bones Leges de vostre Realm, nient obstant que les dits Empeachments ou Accusements soient faits per les Seigneurs ou Commens de vostre Relme come que de novel en temps de Ric. nadgarius Roy ad estre fait & use a contrar, a tres grand Mischief & tres grand Maleveys Exemple de vostre Realm.
Le Roy voet que de cy en avant touts les Appeles de choses faits deins le Relme soient tryez & terwinez per les bones Leys faits en temps de tres noble Progeniteurs de nostre dit Seigneur le Roy, Et que touts les Appeles de choses faits hors du Realm, soient triez & terminez devant le Constable & Marshal de Angleterre, & que nul Appele soit fait en Parlement desore en ascun tempts a venir.
This is the Petition and Answer. The Statute as drawn up hereupon, is general, and runs thus:
Item. Pur plusieurs grands Inconveniencies & Mischeifs que plusieurs fait ont advenus per colour des plusieurs Appeles faits deins le Realm avant ces heurs ordain est & establuz, Que desore en avant touts Appeles de choses faits deins le Realm soient tries & termines per les bones Leys de le Realm faits & uses en temps de tres noble Progeniteurs de dit nostre Seigneur le Roy;Etque ils les Appeles de choses faits hors du Realm soient tries & termines devant le Constable & Marshal pur les temps esteant;Et ouster accordes est & assentus que nulls Appeles soient desore faits ou pursues en Parlement en nul temps avenir.
Where we may observe, That thougb the Petition expresses (only) Treason and Felony, yet the Act is general against all Appeals in Parliament; and many Times the Purview of an Act is larger than the Preamble, or the Petition, and so 'tis here: For the Body of the Act prohibits all Appeals in Parliament, and there was Reason for it: For the Mischief, viz. Appeals in Parliament in the Time of King Richard 2 (as in the Petition is set forth) were not only of Treason and Felony, but of Misdemeanors also, as appears by that great Proceeding, 11 R. 2, against divers, by the Lords Appellants, and consequently it was necessary to have the Remedy as large as the Mischief. And I do not remember that after this Statute there were any Appeals in Parliament, either for Matters Capital or Criminal, at the Suit of any Particular Person or Persons.
