besides the Jurisdiction of the House of Peers; that this was a Complaint of a Default in the Judges, which cannot be tried in this Place; that Magna Charta was made for them as well as for others; that if they offend against any Rule of the Common Law, or particular Statute, whether in their Personal Behaviour, or as Judges, they are triable only by their Peers; that Peers are only such qui pari conditione & lege vivunt; that the Crown and Constitution of England had so far exalted their Lordships in their State and Condition, that 'tis beneath them to judge or try Commoners; that all Powers and Privileges in this Kingdom, even the highest, are circumscrib'd by the Law, and have their Limits: That this is a Complaint of a great Crime in the Judges, a Breach of their Oaths, and with the Insinuation of Partiality to one of themselves; which, if true, incurs Loss of their Offices, and Forfeiture of their Estates by Fine, and of their Liberty by Imprisonment; and all this to the King; besides Damages to the Party grieved; and therefore it concerns them to have the Benefit of the Law.
That this comes not regularly into the House; 'tis not any Matter of Advice to the King, nor of Privilege, nor of Contempt to this Court, because the Matter complained of was before any Judgment below, or any Jurisdiction could be attached here, by Pretence of the Writ of Error. 'Tis brought hither by way of Complaint for a supposed Miscarriage in Westminster-hall, in a private Cause between Bridgman and Holt, two Commoners: It presumes the Lords to be proper Judges in the first Instance, for the hearing and punishing of all Offences committed by the Judges, and that in a Summary way upon a Petition, and without that due Process of Law, which is established under our Government.
[122] Either this Refusal is punishable, or not; If not, the Petition ought to be rejected: If it be, 'tis either by the Common Law, or by Act of Parliament; but neither do warrant this Practise of Petitioning. And the old Law is that, which past Ages have approved, and that by which Justice is to be administred; and whatsoever is done by way of Judgment in a different Manner than the Law allows, is against that Law.
The Proceeding in this Manner is against the Consent of the Respondents, for they have pleaded to the Jurisdiction of this House as to this Matter, &c. and therefore it differs from all Cases, where the Parties concerned have answered the Complaint, and thereby submitted the same to an Examination: And this will prevent the Force of many Precedents which may be cited on this Occasion. Some Persons perhaps have from a Confidence of Success, or from a slavish Fear, or private Policy, forborn to Question the Power of their Superiors; but the Judges must betray their Reputation and their Knowledge of the Laws, if they should own a Jurisdiction, which former Times and their Predecessors were unacquainted with.
Objection of Failure of Justice answered.—'Tis necessary to answer the Pretence of a Failure of Justice, in case this Method be rejected; and therefore it must be observed, That our Law knows nothing of extraordinary Means to redress a Mischief: But that upon a Defect of ordinary ones, Recourse is to be had to the Legislature, and to that only; either to explain and correct in Reference to Things past, or to provide Remedies for the Future. But here is a common easy Means of Relief, if there had been Occasion.
By the Statute of Westminster 2. cap. 31. In case the Judge refuses, then a Writ to Command him, which is to issue out of Chancery, quod apponat sigillum suum; and then a Writ to own or deny his Seal.
By 2 Inst. 426. the Party grieved by the Denial may have a Writ upon the Statute, Commanding the same to be done juxta formam Statuti, Reg. 182. Fitz Natura Brevium 21. and 11 H. 4. 52, 65. there's the Form of the Writ set out at large. It recites a Surmise of an Exception taken and over-ruled, and it follows vobis præcipimus, quod si ita est, tunc sigilla vestra apponatis. Si ita, 'tis conditional, if the Bill be true and duly tendered, then this Writ; and if it be returned, quod non ita est, then an Action for a false Return, and thereupon the Surmise will be tried: And if found to be so, Damages: And upon such a Recovery, a peremptory Writ Commanding the same: That the Law is thus, seems plain; tho' no Precedent can be shewn of such a Writ, 'tis only for this Reason, Because no Judge did ever refuse to Seal a Bill of Exceptions; and none was ever
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