Constitutional History of England, Henry VII to George II. Volume 3 of 3Hallam, Henry
History
Constitutional History of England, Henry VII to George II. Volume 3 of 3
Hallam, Henry
Constitutional history -- Great Britain
The ultimate jurisdiction of the House of Lords, either by removing
into it causes commenced in the lower courts, or by writ of error
complaining of a judgment given therein, seems to have been as
ancient, and founded on the same principle of a paramount judicial
authority delegated by the Crown, as that which they exercised upon
original petitions. It is to be observed that the council or
star-chamber did not pretend to any direct jurisdiction of this
nature; no record was ever removed thither upon assignment of errors
in an inferior court. But after the first part of the fifteenth
century, there was a considerable interval, during which this
appellant jurisdiction of the Lords seems to have gone into disuse,
though probably known to be legal.[32] They began again, about 1580,
to receive writs of error from the court of king's bench; though for
forty years more the instances were by no means numerous. But the
statute passed in 1585, constituting the court of exchequer-chamber as
an intermediate tribunal of appeal between the king's bench and the
parliament, recognises the jurisdiction of the latter, that is, of the
House of Lords, in the strongest terms.[33] To this power, therefore,
of determining, in the last resort, upon writs of error from the
courts of common law, no objection could possibly be maintained.
_Their pretensions about the time of the restoration._--The
revolutionary spirit of the long parliament brought forward still
higher pretensions, and obscured all the land-marks of constitutional
privilege. As the Commons took on themselves to direct the execution
of their own orders, the Lords, afraid to be jostled out of that
equality to which they were now content to be reduced, asserted a
similar claim at the expense of the king's prerogative. They returned
to their own house on the restoration with confused notions of their
high jurisdiction, rather enhanced than abated by the humiliation they
had undergone. Thus before the king's arrival, the Commons having sent
up for their concurrence a resolution that the persons and estates of
the regicides should be seized, the upper house deemed it an
encroachment on their exclusive judicature, and changed the resolution
into "an order of the Lords on complaint of the Commons."[34] In a
conference on this subject between the two houses, the Commons denied
their lordships to possess an exclusive jurisdiction, but did not
press that matter.[35] But in fact this order was rather of a
legislative than judicial nature; nor could the Lords pretend to any
jurisdiction in cases of treason. They artfully, however, overlooked
these distinctions; and made orders almost daily in the session of
1660, trenching on the executive power and that of the inferior
courts. Not content with ordering the estates of all peers to be
restored, free from seizure by sequestration, and with all arrears of
rent, we find in their journals that they did not hesitate on petition
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account