OF WRITS OF ERROR IN PARLIAMENT. History of the Jurisdiction. Ancient Course of Proceeding, 349.-Case of Gerard Salveyn, 8 Edward II., 351.— Of Hadlowe, 22 Edward III., ib.—Of Bishop of Norwich, 50 Edward III., ib.-Earl of Salisbury v. Earl of March, Temp. Richard II., 352.-Prior of Montague v. Seymour, 7 Richard II., 354.-Metham v. Aske, 13 Richard II., ib.-Frere v. Aske, 13 Richard II., 355.-Prebendary of Lincoln v. Prior of Huntingdon, 15 Richard II., ib.-Dean and Chapter of Lichfield v. Prior of Newport Pagnell, 18 Richard II., ib.-Basset v. the King, 2 Henry IV., ib.-Case of Roger Deyncourt, 5 Henry IV., 356.— Of John de Gunwardby, 1 Henry V., ib.-Of Richard Cattermayne, 3 Henry V., ib.-Error from Irish House of Lords, 8 Henry VI., ib.-Case of Flourdew, 1 Henry VII., 357.-Rarity of Writs of Error in Parliament, from Henry VII. to James I., 359.—Few in reign of James I., ib.-Numerous in Long Parliament, ib.-Settled Course of Practice at that period, ib.-Conclusion, 360. SIR MATTHEW HALE () informs us that the ancient course of proceeding upon error in parliament was either by petition or by writ: thus 1. By petition to the King, or to the King and the Lords, setting forth the cause of complaint, and praying that "The record of the court below might be removed into Parliament, to examine the errors and do right to the party. And if the petition were indorsed that it be done, the (*) Lords' Jurisdiction, p. 135. Chief Justice was commanded, by order of the King (), and sometimes of the King and Lords, and sometimes of the Lords, to bring the record into Parliament; and thereupon the party assigning his errors, a scire facias issued to the sheriff, under the Great Seal, to give notice to the defendant, ad audiendum errores, returnable most commonly the next Parliament. This petition, thus indorsed, was in nature of a special commission to the Parliament to proceed in examination of the errors; for the petition and indorsement were both of record, and filed of record, and most commonly entered on the Parliament Roll. And this certainly was the most usual course of removing the record; for the Chief Justice, being ordinarily present in Parliament, and having such command, ore tenus, or by order, there was no need of a special writ to command him. 2. By Writ of Error directed to the Judge that had the custody of the record to bring it into Parliament. And this has been the method generally used, especially since the time of Edward IV.; and is much more secure for the Judge that brings up the record, and more regular than the other way of petition." Proceedings by petition and by writ, however, were evidently in substance the same; the difference being merely technical. Both modes appear to have been used indiscriminately at a very early period; and in many instances it is not easy to ascertain which course was adopted, neither is it very material to inquire. The remedy, in whatever form resorted to, was founded upon a principle indicative of considerable refinement and civilisation in those distant ages. No corruption or intentional injustice was imputed to the courts below. The proceeding was taken merely on the ground of supposed misapprehension in point of law; which being once rectified by the court above, the record, with the amended judgment, was remitted back for execution. The petition or writ of error therefore stands favourably contrasted with the ruder methods of redress adopted anciently in other countries for the rectification of decrees; in Scot (b) Pretextu cujus petitionis dictum fuit Cancellario per ipsum Regem quod deportare faceret Recordum et pro cessum in Parliamentario. Rot. Parl. 1 E. III. part 1. m. 21. Hale, 172. land, for example, where the "falsing of dooms" falsing of dooms" appears to have implied delinquency on the part of the inferior judges; for which reason, upon all proceedings in that kind, they were usually made defendants. Of the writ of error in parliament the earliest distinct specimen on record is perhaps the following: In the Parliament holden 8 Edward II. (1315) (c), Gerard Salveyn prayed the King to grant him a Writ of Error, for the purpose of bringing before His Majesty in Parliament the record and process upon a judgment by his Justices. To which petition the response made was, him have a writ to cause the record and process to be brought up (d).” "Let The next case deserving of attention is recorded in the Year Books (e). In the Parliament holden 22 Edward III. (1350), on the petition of one Hadlowe, or Shadlowe, and his wife, a Writ of Error was addressed to the Lord Chief Justice of the Court of King's Bench, William de Thorpe, who, in pursuance of the command which it contained, brought up the record, and deposited it on the Lord Chancellor's Woolsack. The result does not appear. A writ of error from the Court of Common Pleas per saltum, was not allowed. This appears by the following case: In the Parliament holden 50 Edward III. (1376), the Bishop of Norwich (') prayed that the record and process on a judgment of the Court of Common Pleas might be ordered to be brought into Parliament for correction; but it was answered, with the assent of all the Judges, that the cause should have been previously submitted to the Court of King's (e) Rot. Parl., 8 Edward II. (d) Habeat Brecia ad faciendum venire Recordum et processum. Sometimes the Chancellor was orally commanded to cause the record to be brought up. Thus in the Rolls of Parliament of the 1 Edward III, part 1., m. 21, upon the petition of a complainant the following order appears: "Pretextu cujus petitionis dictum fuit Cancellario per ipsum Regem quod deportare faceret recordum et processum in Par liamentario." An order which the (1) Instead of giving the references for this and the following cases, I shall ensure greater accuracy by requesting the reader to avail himself of the Index to the Rolls of Parliament, and to the Lords' Journals. |