¹ Relf, Francis Helen (ed.), Notes of the Debates in the House of Lords, 1621 … 1628, 3d Ser., vol. XXXII (London, 1929). This collection also contains the final reports of Robert Bowyer, clerk of the parliament, who retired one month after the opening of the 1621 session.Google Scholar

² Jones, William, The Elizabethan Court of Chancery (Oxford, 1967), p. 17. Hereafter cited as Jones, Elizabethan Chancery.Google Scholar

³ Zaller, Robert, The Parliament of 1621 (Berkeley, 1971).Google Scholar

⁴ Relf, pp. xxxi–xxxii.

⁵ Ibid. p. xv.

⁶ Ibid. p. xxxii. One of the reasons it is difficult to accept Relf's interpretation is that the judicial developments in 1621 did not correct the situation which Relf believed to be the cause for the revival of judicature. It was not until the second half of the century, in Shirley versus Fagg, that the house of lords acquired appellate authority over the equity side of chancery. Until then, the only method of questioning a decision from the equitable jurisdiction of chancery was by means of a rehearing by the chancellor, by a petition to the king for a special commission to rehear the case, or by an act of parliament. Holdsworth, William, A History of English Law (16 vols., 7th ed., London, 1966), 1, 273–4Google Scholar; Cross, Geoffry and Hall, G. D. G., The English Legal System (4th ed., London, 1964), p. 219.Google Scholar

⁷ For a description of the bills for chancery reform in 1621, see Zaller, , pp. 90–7. It is not clear from this discussion which, if any, of these bills actually completed passage through both of the houses. Judging from a document listing the state of the bills in the 1621 parliament, at the most only one of these bills passed both houses. Huntington Library, San Marino, California, Bills in Parliament, Hastings MSS, Parliamentary Papers, Box 4, n.d.Google Scholar

⁸ This viewpoint is stated throughout Holdsworth's history of the English law. While recognizing the great need for equitable jurisdiction to ameliorate the rigidities and procedural problems of the common law, Holdsworth nonetheless believed that a struggle for supremacy between the two systems was imminent at the end of the Tudor period. Holdsworth, as so many others, also linked this struggle to the political controversies which were soon to rage in the next era. One can see the continuation of this interpretation in the biography of Francis Bacon written by Catherine Drinker Bowen. She wrote, ‘On one side stood the King's supporters, the prerogative men, led in chancery by [the] Lord Chancellor… Strongly on the prerogative side also were the courts of Star Chamber and the ecclesiastical High Commission… Over against those stood the common-law courts’. Holdsworth, 1, 461, IV, 284; Bowen, Catherine Drinker, Francis Bacon : The Temper of a Man (Boston, 1963), p. 133. Hereafter cited as Bowen, Bacon.Google Scholar

⁹ Relf, p. xix.

¹⁰ Ibid. p. xxxi.

¹¹ Ibid. p. xi. Clayton Roberts appears to have followed Professor Relf's line of argument when he concluded that ‘the House of Commons were able to revive the power of impeachment because precedents justified it, the House of Lords welcomed it, and rhe King was powerless to prevent it’. Roberts, Clayton, The Growth of Responsible Government in Stuart England (Cambridge, 1966), p. 25.Google Scholar

¹² Jones, William, ‘Conflict or Collaboration? Chancery Attitudes in the Reign of Elizabeth I’, The American Journal of Legal History, V (1961), 12–54. Hereafter cited as Jones, ‘Conflict or Collaboration’.CrossRefGoogle Scholar

¹³ Jones, , Elizabethan Chancery, p. 18.Google Scholar

¹⁴ Ibid. p. 20.

¹⁵ Jones, , ‘Conflict or Collaboration’, p. 54.Google Scholar

¹⁶ Holdsworth, , v, 215, 237.Google Scholar

¹⁷ Sir Ogilvic, Charles, The King's Government and the Common Law, 1471–1641 (Oxford, 1958), p. 119; Holdsworrh, IV, 277.Google Scholar

¹⁸ In the reign of James I, 32,240 suits were instituted in chancery alone, an average of nearly 1,500 a year. However, shortly after Francis Bacon became chancellor in 1617, he boasted: ‘not one cause unheard… And this I think could not be said in our age before’. Ogilvie, , p. 91; Bowen, Bacon, p. 156.Google Scholar

¹⁹ Barnes, Thomas G., ‘Due Process and Slow Process in the Late Elizabethan-Early Stuart Star Chamber’, The American Journal of Legal History, V (1962), 22–49, 315–46.Google Scholar

²⁰ The revival of criminal impeachment, in contrast to civil justice, has stimulated much investigation due to its political significance. Some, such as Holdsworth, Roberts, Ogilvie, Cross and Hall, have stressed the move as an attempt to challenge the basis upon which the ‘new monarchy’ rested, that is, the responsibility of the king's council to the king alone. Holdsworth, I, 382; Roberts, , pp. 24–5; Ogilvie, p. 141; Cross and Hall, p. 224.Google Scholar Others have stressed the personal motivations involved in some of the early impeachments, especially the second case in 1621 which caused the fall of Francis Bacon, the lord chancellor of England. Many historians believe that opposition to the favourite, the Duke of Buckingham, who was Bacon's patron, and the long standing rivalry between Bacon and Sir Edward Coke contributed to Bacon's impeachment in 1621. Each consideration may well have played a part in the revival of impeachment but it is equally clear that slow justice was also an overriding concern of leaders of the lower house during the early weeks of that parliament. See the discussion of the Mompesson case below. Spedding, James, An Account of the Life and Times of Francis Bacon (2 vols., Boston, 1878), II, 435Google Scholar; Prestwich, Menna, Cranfield, Politics and Profit under the Early Stuarts (Oxford, 1966), pp. 290–5Google Scholar; Gardiner, Samuel Rawson, The History of England from 1603 to 1642 (10 vols., London, 1896), IV, 56–92Google Scholar; Bowen, Catherine D., The Lion and the Throne: The Life and Times of Sir Edward Coke (Boston, 1956), pp. 424–33.Google Scholar

²¹ In the sixteenth century, acts of attainder replaced impeachment as the method of criminal indictment in parliament. Cross and Hall, , p. 224. Consequently, by 1621, 174 years had elapsed since the last impeachment trial in the lords. Moreover, since Henry VI had banished the defendant, the Duke of Suffolk, before his conviction, the last successful impeachment trial had concluded some 224 years earlier when the house of lords condemned Thomas Arundel, archbishop of Canterbury, in 1397. Roberts, p. 8.Google Scholar

²² Relf, p. xi.

²³ 3 Mar. 1620/1, Journals of the House of Lords, 1509 to 1847 (79 vols.; n.d.), III, 33. Coke's remark that the king could not judge in his own case apparendy referred to the fact that while the writ of error was to some degree a writ of course, up to the time of the long parliament, the writ was never issued except upon petition to the king. Holdsworth, 1, 370.Google Scholar

² * Relf, p. xv.

²⁵ Jones, William, ‘Ellesmere and Politics, 1603–1617’, in Reinmuth, Howard S. Jr, (ed.). Early Stuart Studies, Essays in Honor of David Harris Willson (Minneapolis, 1970), pp. 1–63Google Scholar; Hargrave, Francis (ed.), Practices Considered According to Ancient Record (London, 1796), p. vi.Google Scholar Jurisdiction in error had been little utilized in the Tudor period and only three cases are known in the reign of Elizabeth. The most important reason for this decline was that, in both civil and criminal cases, appeals were limited to errors appearing on the record which contained no word of the course of the trial, the evidence, or summation. Holdsworth, 1, 370; Cross and Hall, , p. 216.Google Scholar

²⁶ Not only were private bills an uncertain method of procedure due to the irregularity of meetings of parliament - for example, parliament met for only one brief six-week period in the decade before 1621 and passed no legislation - but also, when parliament was in session, private bills were often lost due to the rush of other business and the preference given to public legislation. Consequently, although there were seven meetings of parliament in the 1620s, only in the 1624 parliament were a significant number of bills passed into law. In 1628, at least two dozen bills were reintroduced for the second to the fifth time. Most of these were either controversial religious measures or private legislation. It also appears that private acts could be quite expensive, especially if delayed in passage. In 1624, Henry Palavicino paid the clerk £30 for fees involved in the preparation and passage of his bill. This bill had been originally introduced in the 1621 session but was rejected and ordered redrawn. After re-introduction in the 1624 session, it was passed into law. 22 Mar. 1627–8, H[ouse] of L[ords] Rfecord] O[ffice], Manuscript Minute Book, 17 Mar. 1627/8 to 20 Oct. 1628; page of fees among the notes for 19 May 1624, H.L.R.O., Manuscript Minute Book, 1 Apr. 1624 to 15 Mar. 1624/5. Judging from the number of judicial petitions which the house of lords handled in the mid 1620s, parliament might have been burdened with as many as one hundred additional pieces of private legislation had the revival of judicature in the upper house not occurred. While some appellants continued to prefer legislative to judicial redress, the nature of the issue probably determined their choice since it is likely that much of the judicial business which the lords took over from chancery may have been unsuitable for settlement by private legislation. See below, footnote 47; Holdsworth, 1, 373.

²⁷ Relf, p. xv.

²⁸ Ibid. p. xix.

²⁹ The commons initially had no intention of sharing judicial functions with the upper house. The first investigation in 1621 involved Francis Mitchell not Giles Mompesson. On the basis of a report from the committee on grievances, Mitchell on 23 Feb. was sent to the Tower. Four days later, Sir Edward Coke, in reporting the results of the preliminary investigations of Mompesson's patent, justified what the house had done previously on the grounds that anyone accused of a grievance who tried to justify it to the commons (as Mitchell had done) committed an indignity against the house. Apparently some of the other lawyers refused to accept the quaint notion that a man could automatically commit one crime by trying to defend himself against another accusation. Enough uncertainty prevailed to induce the house to order a search for precedents. The results of this search led to the decision to try to revive the ancient procedure of impeachment. Spedding, 11, 427–9.

³⁰ Ibid. 30 Apr. 1621, L.J., III, 101; Hargrave, , p. xxii; 25 May 1621, L.J., III, 131.Google Scholar

³¹ Ibid.

³² For example, when Solicitor General Robert Heath argued that the king traditionally had the power to grant patents to encourage new manufactures, one of the most prominent lawyers and leaders of the commons, William Noy, replied that in most other lands, such a privilege was not extended for more than seven years. Any suggestion that the prerogative power to grant monopolies might be limited was ominous to royal ears. 7 Mar. 1621, Pym, John, All the Remarkable Passages of Things Done in the Lower House of Parliament, in Commons' Debates 1621, ed. by Notestein, Wallace et al. (7 vols., New Haven, 1935), IV, 131.Google Scholar

³³ Monopolies were an old grievance to parliament. The first attack on them, in Elizabeth's last parliament, led to the promise that some would be recalled and the others would be ‘left to the law’. Although this implied control by the courts, James had circumvented such action by setting up a special group of royal advisers to certify the legality and beneficiality of patents before their issuance. When the issue rose in 1621 the attack on the referees as well as the monopolists signalled a deeper concern than the mere abuse of particular patents. Coke made this wider attack clear when he distinguished between what he said were three sorts of patents: those good in law and practice, those good in law but harmful in practice, and those neither good in law nor in practice. By also suggesting that the prerogative power was twofold, absolute in some cases and disputable in others and by placing monopolies within the second category, the leader of the house of commons opened what might have been the most serious conflict over the prerogative since the battle over purveyance in 1610. Mclwain, C. H., ‘The Common Law Barrier against Absolutism’, American Historical Review, XLIX (1943), 29Google Scholar; Gardiner, , IV, 46Google Scholar; Spedding, , II, 431Google Scholar; Roberts, , p. 21Google Scholar; Zaller, , p. 56.Google Scholar

³⁴ The king and leading members of the upper house knew of the impending impeachment of Mompesson from 28 February. That day the king ordered Bacon and other councillors in the house of lords to prepare to deal with the situation. Spedding, , 11, 432–5.Google Scholar

³⁵ 3 Mar. 1621, L.J., III, 35.

³⁶ King's speech, 10 Mar. 1620/1, deVilliers, Lady E. (ed.), The Hastings Journal of the Parliament of 1621, Camden Society, 3rd Ser., XXXIII (London, 1955), 27–9.Google Scholar

³⁷ Ibid. p. 29.

³⁸ Relf, p. xx.

³⁹ 27 Apr. 1621, Pym, p. 270.

⁴⁰ I May 1621, ibid. p. 285.

⁴¹ One startling thing about the Floyd case, as in the earlier Mompesson investigation, is that it was James, not the house of lords, who first took action. In the Floyd case he challenged the right of the commons to punish Floyd. When the commons could not give legal justification for its action it still tried to maintain its judgment by petitioning the king to allow the house to try the culprit. When James answered negatively and told them he was sending the case to the lords some members feared that they might lose their role in impeachments as a result. Nevertheless, the commons first attempted to justify its actions to the upper house and only finally agreed to seek an accommodation with the lords when the upper house refused to accept their explanations. Gardiner, , IV, 120–4Google Scholar; Zaller, , pp. 106–9.Google Scholar

⁴³ 5 May 1621, ibid. p. 309.

⁴³ 27 Apr. 1621, ibid. p. 270.

⁴⁴ 3 Dec. 1621, Gardiner, Samuel Rawson, Notes of tie Debates in tie House of Lords Talken by Henry Elsing … in 1621, Camden Society, CIII (London, 1870), 167–209. Holdsworth does not consider this to be a true case of a civil appeal since the lords decided the case on other issues. However, he is incorrect in stating that a committee of the house reported that there were no precedents for entertaining appeals. The committee skirted this issue by reporting that it could find no precedent for the use of the word ‘appeal’ in a petition to the house. Holdsworth, 1, 373.Google Scholar

⁴⁵ Ibid. 3 Dec. 1621, L.J., III, 179.

⁴⁶ The new lord keeper was Williams, John, bishop of Lincoln.Google Scholar

⁴⁷ Two registers of petitions survive from the parliament of 1626, one listing 89 and the other, 103 titles of petitions received. 6 Feb. 1625/6, Register of Petitions, House of Lords Record Office, Main Paper Series, 23 Feb. to 16 May 1625/6, Register of Petitions, House of Lords Record Office, Main Paper Series.

⁴⁸ Bowen, Bacon, p. 151.