the opinion of Sir M. Hale that
the council, though not peers, had right of suffrage; an opinion very
probable, when we recollect that the council by themselves, both in and
out of parliament, possessed in fact a judicial authority little
inferior; and that the king's delegated sovereignty in the
administration of justice, rather than any intrinsic right of the
peerage, is the foundation on which the judicature of the lords must be
supported. But in the time of Edward III. or Richard II. the lords, by
their ascendency, threw the judges and rest of the council into shade,
and took the decisive jurisdiction entirely to themselves, making use of
their former colleagues but as assistants and advisers, as they still
continue to be held in all the judicial proceedings of that house.[358]

Those statutes which restrain the king's ordinary council from
disturbing men in their freehold rights, or questioning them for
misdemeanours, have an equal application to the lords' house in
parliament, though we do not frequently meet with complaints of the
encroachments made by that assembly. There was, however, one class of
cases tacitly excluded from the operation of those acts, in which the
coercive jurisdiction of this high tribunal had great convenience;
namely, where the ordinary course of justice was so much obstructed by
the defending party, through riots, combinations of maintenance, or
overawing influence, that no inferior court would find its process
obeyed. Those ages, disfigured in their quietest season by rapine and
oppression, afforded no small number of cases that called for this
interposition of a paramount authority.[359] Another indubitable branch
of this jurisdiction was in writs of error; but it may be observed that
their determination was very frequently left to a select committee of
peers and councillors. These, too, cease almost entirely with Henry IV.;
and were scarcely revived till the accession of James I.

Some instances occur in the reign of Edward III. where records have been
brought into parliament, and annulled with assent of the commons as well
as the rest of the legislature.[360] But these were attainders of
treason, which it seemed gracious and solemn to reverse in the most
authentic manner. Certainly the commons had neither by the nature of our
constitution nor the practice of parliament any right of intermeddling
in judicature, save where something was required beyond the existing
law, or where, as i