Justice Upon Petition

The House of Lords and the Reformation of Justice 1621-1675

James S. Hart

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000207460
• Edition: 1
• Topic: History
• Subtopic: British History
• Index: History

Originally published in 1991, this book traces the evolution of the House of Lords as a court for private litigation during the critically important years from 1621 to 1675. It offers new insights into contemporary politics, government and religion, adding an important dimension to our understanding of the House of Lords. This book is primary reading for advanced undergraduates and postgraduate students on courses on early Stuart England, the Civil War and Restoration history.

1
The 1620s: the remaking of a court

The revival of House of Lords judicature in the Parliament of 1621 began quietly and unobtrusively. Strictly speaking, the revival got underway on 3 March. The cause was a private one and the request for judicial assistance came, not from the Commons, but from the king. On that day James I forwarded to the Lords the petition of Edward Ewer asking that the record of Ewer’s case in King’s Bench be removed into the upper house for their review. The case signalled the revival of the Lords’ appellate authority over the court of King’s Bench — a jurisdiction long established but unused since 1589.¹ The proceedings went entirely unnoticed. What seemed far more important at the time was the request made five days later by Sir Edward Coke on behalf of the House of Commons. Admonishing the Lords to ‘tread in the steps of your noble progenitors’, Coke pressed them to assume once again the role of judges and take responsibility for the trial and punishment of the notorious patentee, Sir Giles Mompesson.² The very public proceedings which followed Coke’s demand – the trial of Mompesson and the subsequent impeachment proceedings against Sir Francis Michell, Sir John Bennett and Lord Chancellor Bacon – entirely overshadowed the private proceedings effectively initiated by the king. But in fact Ewer’s appeal (however inconspicuous) was every bit as important as Coke’s. Intentionally or not, it opened the door to the resumption of private party litigation in the upper chamber. His was the first of more than a dozen such petitions which the Lords would receive and accept in the 1621 Parliament, and those petitions would establish an all important foundation for a dramatic expansion of the Lords’ judicial responsibilities over the decade. Though their number was small, these cases still required that the Lords reallocate time and personnel to their hearing. Committees had to be appointed, administrative procedures put in place and new rules devised to govern the process. It was all done in a very business-like manner – efficiently, purposefully and, notably, without comment, but a major step had been taken all the same.³

LITIGANTS AND LITIGATION

By the close of the second session of 1621 the machinery was in place to handle any petitions which might be presented. Few members involved in those proceedings, however, could have anticipated the impact which their actions would have in subsequent Parliaments. No doubt at the time the Lords assumed they were administering special remedies to special cases. Each of the petitions accepted in 1621 appeared to be an isolated complaint reflecting a unique set of conditions and circumstances. There was little evidence to suggest that the problems they presented were more widespread. But they were and other litigants with similar complaints would soon follow the example set by the pioneering petitioners of 1621. The scale of the public response was perhaps surprising – more than a four-fold increase in the number of petitions presented from 1621 to 1624 – but the legal community in Westminster was not a large one, and however small scale and seemingly inconsequential the private judicial proceedings of 1621 may have been (certainly in comparison to the rest of the parliamentary agenda), the renewed availability of parliamentary remedy would not have remained a secret for long.

As a consequence the number of petitions presented to each of the subsequent Parliaments (excepting the sessions of 1625) multiplied dramatically. Table 1.1 indicates the number of cases accepted by the house in each of the five Parliaments of the 1620s. It needs to be stressed that these totals represent only those cases which were accepted by the house after preliminary consideration and on which there were subsequent proceedings. They do not represent the number of cases actually submitted for review. Records kept by the Clerk of Parliament of the petitions delivered into the house suggest that the number actually presented was a good deal larger. The clerk’s ‘Catalogue of petitions received this Parliament’ for 1621 lists an additional 16 names for which there are no original petitions or records of further proceedings.⁴ A similar ‘Register of petitions’ for 1624 lists an additional 15 names unsupported by documentation, those for 1626 an additional 47 and that for 1628 another 9.⁵ During 1626, the clerk also kept a separate list of ‘petitions rejected’ which contains the names of another 48 petitioners who appear on none of the above lists for that year.⁶ As this last list suggests, the majority of these causes were in all likelihood rejected outright on a first reading of the initiating petition, in which case the petition was redelivered to the plaintiff. Alternatively, some of these disputes may have been resolved between the parties themselves before further action was taken in the house. The plaintiff would then have asked to withdraw his petition and no further record would have been made. There is clear evidence that this happened in at least two cases in 1624 and 1626 and it no doubt happened in others.⁷ As will be seen, litigants soon learned that the prospect of judicial proceedings in the House of Lords could have an intimidating effect on adversaries. It is also possible, though somewhat less likely, that some of these petitions were informally referred to outside arbitration without proper notation being made of the fact through carelessness or oversight on the part of the clerk. In any event, it is clear that the house received many more petitions than it accepted. The total number presented appears to have been well over 300.

Table 1.1 Number of cases accepted by upper house for each Parliament, 1621–9

Parliament	Number of cases
30 January 1621 to 6 January 1622	14
18 February 1624 to 27 March 1625	57
18 June 1625 to 12 August 1625 (Oxford)	3
6 February 1626 to 15 June 1626	86
17 March 1628 to 10 March 1629	47
Total	207

The cases which were accepted included both first instance causes and those in which there had been prior proceedings in other courts. The litigation in fact divides almost equally between the two. The latter designation has been chosen with some care. Not all of the cases with prehistories in other courts can be fairly described as conventional appeals against lower court decrees. In some instances the petitioners were asking the house to review the conduct of court officials, in others to intercede with lower courts to remove some technical obstruction to further proceedings, and in still others to stay lower court proceedings altogether to prevent a potential injustice. There were, in fact, a few requests that the Lords confirm and enforce lower court decrees. The majority were, however, appeals against earlier decrees or judgments. Table 1.2 indicates the origin of these complaints and the number of cases from each court. To these number might be added a half dozen more appeals from prisoners in the King’s Bench prison who had been imprisoned by the court for debt. They have not been included in Table 1.2 because their petitions did not, strictly speaking, ask for review of their conviction, but for redress against the strict interpretation of the laws of debt. An argument might also have been made to include some 16 cases which had previously been heard before the King’s Privy Council. Some of these did in fact come to the Lords as appeals against council proceedings, but many more of them were requests for a new hearing of a dispute which the council had failed to act on or resolve. They have something important to say about the special relationship between the two bodies and will be treated on their own.

Table 1.2 Courts of origin

Court	Number of cases
Chancery	38
Star Chamber	12
Requests	7
King’s Bench (via Writ of Error)	4
High Commission	4
Exchequer	3
Wards	3
Admiralty	3
Prerogative Court of Canterbury	2
Court of Audience	1
Assizes	2
London Court of Orphans	1
Unspecified	3
Total	83

Table 1.2 contains few surprises. At first glance it may seem curious that there are not more appeals from the central courts of common law (King’s Bench and Common Pleas) given the disproportionately large amount of business which those two courts normally attracted.⁸ However, appeals to the House of Lords from the common law courts were regulated by statute and had to conform to strictly defined writ of error procedure. Appeal was only possible for errors in law, not in fact, and the procedure was long, complicated and expensive. On the other hand, appeals from the prerogative and equity courts were not governed by any known procedures: there was simply no established appellate recourse available, save by petition to the king for a specially appointed royal commission of review, or for direct intervention by the king himself — a time-consuming and unpredictable process at best. Given the high level of business normally handled by these courts, most particularly that of Chancery, that had become increasingly impractical, and the lack of effective recourse from their decrees had become a serious grievance. These appeals were a product of that discontent. (In the case of Chancery, they reflect as well growing concern over the court’s procedure and practice.) In all events, appeals from these courts represented an important innovation and quickly laid the foundation for the Lords’ claim to a comprehensive appellate jurisdiction.

The nature of the litigation itself becomes clear when the cases are identified by subject matter. The classifications are listed in Table 1.3. The most striking thing about Table 1.3 is the extraordinary diversity of the litigation covered. At this very early stage of development the jurisdiction of the House of Lords was (and would remain for some time) rather imprecisely defined, if, indeed, it was clearly understood at all. Without predetermined rules or limitations, prospective litigants understandably defined its authority to their advantage. Nor were they discouraged from doing so. Lords and litigants alike were loath to impose restrictions on the High Court of Parliament. The result, however, was that the litigation as a whole remained remarkably eclectic. The disproportionate number of cases involving real property and debt does in fact reflect the general pattern of litigation in early modern England,⁹ but even within these classifications the cases do not conform to any recognizable patterns or prescribed forms of action. They include, in the former class, an infinite variety of disputes over copyhold rights, leases, mortgages and titles to property, and in the latter, an almost incomprehensible array of failed financial agreements. Petitions requesting administration of the massive debts of the Muscovy Company took their place along side those requesting collection of a £10 obligation.

...

Table 1.3 Classification of litigation

Subject in dispute	Number of cases
Real property	74
Debt	51
Disputed wills and trusts	21
Wardship	2
Domestic disputes	2
Trade disputes	9
Disputed office	1
Maritime disputes	5
Complaints against judicial personnel	7
Complaints against attorneys	4