cognisable only by a jury, that their managers in the conferences seemed less to insist on the general right, than on a supposed inability of the courts of law to give adequate redress to the present plaintiff; for which the judges had furnished some pretext on a reference as to their own competence to afford relief, by an answer more narrow, no doubt, than would have been rendered at the present day. And there was really more to be said, both in reason and law, for this limited right of judicature than for the absolute cognisance of civil suits by the Lords. But the Commons were not inclined to allow even of such a special exception from the principle for which they contended, and intimated that the power of affording a remedy in a defect of the ordinary tribunals could only reside in the whole body of the parliament.

The proceedings that followed were intemperate on both sides. The Commons voted Skinner into custody for a breach of privilege, and resolved that whoever should be aiding in execution of the order of the Lords against the East India Company should be deemed a betrayer of the liberties of the commons of England, and an infringer of the privileges of the house. The Lords, in return, committed Sir Samuel Barnardiston, chairman of the company, and a member of the House of Commons, to prison, and imposed on him a fine of £500. It became necessary for the king to stop the course of this quarrel, which was done by successive adjournments and prorogations for fifteen months. But on their meeting again in October 1669, the Commons proceeded instantly to renew the dispute. It appeared that Barnardiston, on the day of the adjournment, had been released from custody, without demand of his fine, which by a trick rather unworthy of those who had resorted to it, was entered as paid on the records of the exchequer. This was a kind of victory on the side of the Commons; but it was still more material that no steps had been taken to enforce the order of the Lords against the East India Company. The latter sent down a bill concerning privilege and judicature in parliament, which the other house rejected on a second reading. They in return passed a bill vacating the proceedings against Barnardiston, which met with a like fate. In conclusion, the king recommended an erasure from the journals of all that had passed on the subject, and an entire cessation; an expedient which both houses willingly embraced, the one to secure its victory, the other to save its honour. From this time the Lords have tacitly abandoned all pretensions to an original jurisdiction in civil suits.[41]

They have however been more successful in establishing a branch of their ultimate jurisdiction, which had less to be urged for it in respect of precedent, that of hearing appeals from courts of equity. It is proved by Sir Matthew Hale and his editor, Mr. Hargrave, that the Lords did not entertain petitions of appeal before the reign of Charles I., and not perhaps unequivocally before the long parliament.[42] They became very common from that time, though hardly more so than original suits; and as they bore no analogy, except at first glance, to writs of error, which come to the House of Lords by the king's express commission under the great seal, could not well be defended on legal grounds. But on the other hand, it was reasonable that the vast power of the court of chancery should be subject to some control; and though a commission of review, somewhat in the nature of the court of delegates in ecclesiastical appeals, might have been and had been occasionally ordered by the Crown;[43] yet if the ultimate jurisdiction of the peerage were convenient and salutary in cases of common law, it was difficult to assign any satisfactory reason why it should be less so in those which are technically denominated equitable.[44] Nor is it likely that the Commons would have disputed this usurpation, in which the Crown had acquiesced, if the Lords had not received appeals against members of the other house. Three instances of this took place about the year 1675; but that of Shirley against Sir John Fagg is the most celebrated, as having given rise to a conflict between the two houses, as violent as that which had occurred in the business of Skinner. It began altogether on the score of privilege. As members of the House of Commons were exempted from legal process during the session, by the general privilege of parliament, they justly resented the pretension of the peers to disregard this immunity, and compel them to appear as respondents in cases of appeal. In these contentions neither party could evince its superiority but at the expense of innocent persons. It was a contempt of the one house to disobey its order, of the other to obey it. Four counsel, who had pleaded at the bar of the Lords in one of the cases where a member of the other house was concerned, were taken into custody of the serjeant-at-arms by the speaker's warrant. The gentleman usher of the black rod, by warrant of the Lords, empowering him to call all persons necessary to his assistance, set them at liberty. The Commons apprehended them again; and to prevent another rescue, sent them to the Tower. The Lords despatched their usher of the black rod to the lieutenant of the Tower, commanding him to deliver up the said persons. He replied that they were committed by order of the Commons, and he could not release them without their order; just as, if the Lords were to commit any persons, he could not release them without their Lordships' order. They addressed the king to remove the lieutenant; but after some hesitation, he declined to comply with their desire. In this difficulty, they had recourse, instead of the warrant of the Lords' speaker, to a writ of habeas corpus returnable in parliament; a proceeding not usual, but the legality of which seems to be now admitted. The lieutenant of the Tower, who, rather unluckily for the Lords, had taken the other side, either out of conviction, or from a sense that the lower house were the stronger and more formidable, instead of obeying the writ, came to the bar of the Commons for directions. They voted, as might be expected, that the writ was contrary to law and the privileges of their house. But in this ferment of two jealous and exasperated assemblies, it was highly necessary, as on the former occasion, for the king to interpose by a prorogation for three months. This period, however, not being sufficient to allay their animosity, the House of Peers took up again the appeal of Shirley in their next session. Fresh votes and orders of equal intemperance on both sides ensued, till the king by the long prorogation, from November 1675 to February 1677, put an end the dispute. The particular appeal of Shirley was never revived; but the Lords continued without objection to exercise their general jurisdiction over appeals from courts of equity.[45] The learned editor of Hale's Treatise on the Jurisdiction of the Lords expresses some degree of surprise at the Commons' acquiescence in what they had treated as an