Good and Safety of the King and Kingdom, to take Examinations of Perfons charged with criminal Matters, whether fuch Perfons be then in Cuftody, or not; and alfo, to order the Perfon fo to be examined, to be taken into Custody of the King's fworn Officers attending the Houfe, during fuch Examinations, or to commit them to any other fafe Cuftody that they shall think proper, and to refrain others (if they fee Caufe) from having Access to, or Communication with them. The House of Lords have exercised this Right from time to time, as Occafions have required, without Objections. The Records are filled with Precedents, which warrant their Claim in every Part of it. And they urge, That if Perfons in Cuftody are out of the Reach of the House of Lords, 'tis not to be imagined, that the Commons can pretend to a greater Power of examining, committing, or reftraining them, which Power they have affumed feveral Times. They further alledged, That when the Peers order Perfens to be examined in their Houfe, they cannot be faid to take the Examination of them folely to themfelves, exclufive from the King, the King being always look'd upon as prefent in that great Council, in Confideration of Law, where He may be prefent in his Regal Perfon as often as he pleafes.

The Houfe of Commons, infifting upon the Nullity of that Right of the House of Lords, addreffed the Queen about it, and ufed fuch Expreffions as were highly refented by their Lordfhips. As to their addreffing the Queen, the Lords reprefented, That if at any time either Houfe conceived they had a reasonable Ground to object against the Proccedings of the other, it has been a common Practice to defire Conferences, fairly to difcufs the Matter in Debate between them, whereby Miftakes have been cleared for the most part, a good Underftanding cultivated, and a mutual Refpect preferved. They faid further, That if it be justifiable in the Houfe of Commons, to be appealing to the Crown against the Lords, the fame Method may be taken by the Lords. And, That 'tis eafy to forefee how fatal the Confequences may be in the Reign of an ill-defigning Prince, and what Advantages may be taken from it, for utterly fubverting the Conftitution. There are Examples bread, where Proceedings of this kind have ended in the O-verthrow of the Liberties of the Peaple,

However, the Commons refolved, That they have an undoubted Right to commit for Breach of Privilege, and that the Commitments of the Houfe are not examinable in any other Court whatsoever.

The Lords, on the contrary, refolved, 1. That neither House ba: any Power to create new Privileges. 2. That the Commons in Committing the five Perfons, have affumed a new Privilege they ahiw no Right to. 3. That every Englishman has a Right to

for, and obtain a Habeas Corpus. 4. That the Commons faring Perfons for aiding a Prisoner to procure a Habeas Corpus, of dangerous Confequence. 5. That a Writ of Error is not a Writ of Grace, but a Writ of Right.

One

One of the fundamental and principal Ends of Parliaments being to redress Grievances, and ease the People of Oppreffions, the chief Care thereof lies in the Houfe of Commons; which is the grand Inqueft of the Realm, fummoned from all Parts to prefent publick Grievances to be redreffed, and publick Delinquents punished; fuch as corrupted Confellors, Judges and Magistrates. This makes Parliaments to be a great Check to ill Men, and therefore abhorred by fuch Men in Authority.

In this Cafe, when the Parliament fits, the Commons impeach, and the Lords are the Judges. The Commons inform, prefent, and manage the Evidence; and the Lords, when the Trial is over, give Judgment upon it. In fhort, fuch is the Privilege of the House of Commons, that they may impeach the highest Lord in the Kingdom, either Spiritual or Temporal. But the Lords cannot proceed against a Commoner, except upon a Complaint of the Commons.

In a Cafe of Misdemeanour, both the Lords Spiritual and Temporal are Judges. But if the Crime be Capital, the Lords Spiritual abfent themfelves during the Trial. For by an Ordinance made at the Council at Westminster, in Henry II's Reign, all Clergymen were forbidden agitare Judicium Sanguinis, upon Pain of being deprived both of Dignities and Orders.

Formerly, all Members of Parliament were free from Suits, Arrefts, or Imprisonment (except in Cafe of Treafon or Felony) not only during the Sitting, but also forty Days before, and forty Days after the Seffions: Which Privilege did likewise extend to their Menial Servants, and the Officers attending the Houfe. But by an Act paffed in the late Reign, the Privilege ceafes immediately after the Prorogation or Diffolution of any Parliament, till the prorogued Parliament be re-affembled, or a new Parliament meet. It ceafes alfo immediately after any Adjournment of both Houfes of Parliament for above fourteen Days, until both Houfes meet again. And upon the rifing of the Parliament, the Plaintiff fhall be at Liberty to proceed to Judgment and Execution. Nor fhall any Action for the Recovery or obtaining of any Debt or Duty due to the Crown be impeach'd, ftay'd or delay'd, under the Colour or Pretence of Privilege of Parliament. But the Perfon of the Debtor or Accomptant, whether a Peer of the Realm, or a Member of the Houfe of Commons, fhall be free from Arreft or Imprisonment during the Continuance of the Privilege of Parliament.

The Lords Spiritual and Temporal, qualify'd to fit in the Houfe, have this Privilege, That if they cannot appear in Parliament, by reafon of Sickness, they make their Proxies to vote in their Stead. But then fuch Lord as would make their Proxies, must enter them in Perfon, at the Beginning of every Parliament.

While the Parliament fits, all Members of the Houfe of Commons are free from Attendance on Trials in inferior Courts of Judicature, from ferving on Juries, and the like.

In

In time of Parliament, whoever offers to speak irreverently of that Court, to threaten, or abuse any Member of the House of Commons, is liable (upon Complaint thereof) to anfwer it to the House, and be committed to the Cuftody of the Serjeant at Arms.

'Tis a common Saying, That a Parliament can do any thing: Which is to be understood, That the Parliament, with the Royal Affent, can do any Thing that is not repugnant to common Juftice. They may revive or abrogate old Laws, and make new; fettle the Succeffion to the Crown, determine doubtful Rights for which no Law is made; appoint Taxes; eftablish Forms of Religion; naturalize Aliens; legitimate Baftards, adjudge an Infant (or Minor) to be of full Age; attaint a Man of Treafon either alive or after his Death; condemn or acquit them who are upon their Trial; give the most free Pardons; reftore in Blood and Name, &c. And the Confent of the Parliament is taken to be the Consent of every Englishman.

But how great foever the Power of King and Parliament may be, yet they cannot restrain or confine future Parliaments. Quod leges pofteriores priores contrarias abrogant, is a Maxim in the Law of Parliaments: And a fubfequent Parliament has still a Power to abrogate, fufpend, qualify, explain, or make void the Acts of the former, in the Whole, or any Part thereof; notwithtanding any Words of Restraint, Prohibition, or Penalty in the A former.

CHA P. XXXVI.

Of the Courts of Judicature: And firft of the Superior Court.

FRO

Rom the High-Court of Parliament I proceed to the Courts Courts of of Justice fitting at Westminster, and opened four Times aJustice. Year, called the four Terms, viz. Eafter, Trinity, Michaelmas, and Hilary Terms.

Eafter Term begins the 17th Day after Eafter, and lafteth Termen 27 Days. Trinity Term the 5th Day after Trinity Sunday, and lafeth 20 Days. Michaelmas Term the 23d of October, and lateth 37 Days. Hilary Term the 23d of January, and lafteth 22 Days. So that the Four Terms take up in all 106 Days; from which must be deducted about 20 Sundays and Holy Days, in which the Courts do not fit.

The feveral Courts are the Court of Chancery, King's Bench, and Common Pleas ; and two concerning the King's Revenue, iz. the Court of Exchequer, and that of the Dutchy of Lancafter. The Principal of these Courts are the High Court of Chancery, and the Court of King's Bench, both kept at the upper End of

T

Weft

Chancery-
CONTI.

Lord Chancellor.

Weftminster-Hall; the laft being a Court of Juftice, that obferves nothing but the ftrict Letter of the Law; and the first a Court of Mercy, in which Causes are try'd, not according to the Strictness of Law, but by the Rules of Equity.

And as the King's Bench is a Court in which the Pleas are between the King and Subject, fo in the Court of Common Pleas are debated the ufual. Pleas between Subject and Subject.

Of the COURT of CHANCERY.

I begin with the Court of Chancery, which is the most ancient, and has the Pre-eminence.

Here the Proceedings were in Latin or English. In Latin, when the Court proceeds according to the known Larus and Customs of the Land; and by English Bill, when according to Equity and Confcience. For the Chancery has two Courts in one; the equitable Part being inftituted for the Relief of the Subject, against Cheats, Breaches of Truft, and unfortunate Accidents, to temper the Rigour of the Law, and rescue Men from Oppreffion. But the Remedy has proved too often as bad as the Disease, by the length of Time it holds the Appellants in Sufpence; but by a late Act of Parliament all Law-Proceedings are now in English.

The Form of Pleading in this Court is much after the Manner of the Civil Law, by Bill, Examination of Witnesses, and a Subpana, by which the Defendant is fummon'd to appear, and anfwer the Complainant's Bill; upon neglecting whereof, there iffues out an Attachment, to compel him. This being not obey'd, then goes out an Attachment with a Proclamation : And if the Defendant continue still, contumacious, the Court will award against him a Proclamation of Rebellion, upon which he is fent Prisoner to the Fleet.

In this Court all Patents, moft Sort of Commiffions, Deeds between Parties, touching Lands and Estates, Treaties with Foreign Princes, &c. are fealed and inrolled. Out of it are iffued Writs to convene the Parliament, and Convocation, Proclamations, and Charters, &c.

For the Latin Part of this Court there are 24 Curfitors, whole Business is now all done in English; and for the English fix Clerks. And the Judge is the Lord High Chancellor, or Lord Keeper of the Great Seal; who fince the happy Union of England and Scotland, bears the Title of Lord High Chancellar of Great-Britain. He is the chief Magiftrate in the Kingdom, and the prime Minister of State. His Office is reckoned to be worth 7000 l. a Year; which he holds only durante bene placita, i. e. during the King's Pleasure. When he goes abroad, the Mace and Great Seal go conftantly with him.

In the other Courts afore-named there are four Judges to each, but in Chancery the Lord Chancellor is the fole Judge. And, for his Equity,, is laid to be the Keeper of the King's Confcience.

The

The other Courts fit only in Term-time, and have no Power to act as Courts of Juftice out of Term, whereas the Chancery Court is always open. So that, if any Man be wrongfully imprifon'd in the Vacation-time, the Lord Chancellor may grant his Writ of Habeas Corpus, and do him Juftice according to Law. He may also in Vacation-time grant Prohibitions, as well as in Term-time.

Tho' the Lord Chancellor or Lord Keeper, be the fole Judge cancer1. Nafiers of here, yet he has twelve Affiftants, called Mafters of Chancery; who were all anciently Doctors of the Civil Law, and whose Bufinefs was to inform the Lord Chancellor of the equitable Part of the Civil Law. Now, their chief Bufinefs is to take Affidavits, or Depofitions upon Oath, or any other Matter to which an Oath is requir'd by the Rules of the Court, for which end they have an Office in Chancery-lane. The Chancellor does also refer to them the Examination of Accompts, depending on this Court, of which they make their Report in Writing. In Termtime Three of them fit at Court with the Lord Chancellor, at some Distance from him; and Two out of Term, when he hears Causes at his own House.

These are Mafters in ordinary, whofe Salary is 100%. each, paid out of the Exchequer, befides Fees and Robe-Money. But there is befides a great Number of Mafters Extraordinary, difperfed all over the Kingdom, to take Affidavits.

The First of the aforefaid Twelve Mafters is called Mafter of Master of the Rolls, as having the Cuftody of all Charters, Patents, Com the Rollég miffions, Deeds, and Recognizances; which being made into Rolls of Parchment, gave Occafion for that Name. And the Repofitory for that Purpose is called the Rolls. In which are kept all the Rolls fince the Beginning of the Reign of Richard III. the former being kept in the Tower of London.

This is a great Officer, and his Place of great Profit, tho' much fhort of what it has been. He is fo far an Affiftant to the Lord Chancellor, as to hear Causes in his Abfence, but does not go fo far as to make a Decree.

By virtue of his Office, he keeps a Court at the Rolls, with two Affistant Mafters of Chancery, where he hears and determines Causes that come there before him: But his Decrees are appealable to the Court of Chancery.

His Place is in the King's Gift, either for Life, or durante bene placito. And he has the Gift of the Six Clerks Offices, of the Examiners Offices, Three Clerks of the Petty-Bag, and the Six Clerks of the Rolls Chapel. He has under him a Secretary, two Regifters, and an Uber.

In Parliament, when he fits in the Houfe of Lords, his Place is next to the Lord Chief Justice of England, upon the second Wool-fack.

The Chancery Court fwarms with Officers: Amongst which the Six Clerks are next in Degree to the Mafters of Chancery, and Six Clerk S