Rescripto ad Comitia Parliamentaria evocaverit Here we have plainly the Original of the House of Peers and of particular and special Rescripts or Writs of Summons to the Optimacy distinctly and by themselves Cambden quotes his Author for this but names him not Ex satis antiquo Scriptore loquor says he It was referr'd to the King to single out and select some to whom he thought fit to direct his special Writs or Summons and these and no other were to come to Parliament If this may be credited then we have the Epoche and the Date of our present Constitution and the Original of the Division of that very ancient great and numerous Assembly and it made a mighty Metamorphosis and Change The Freeholders parted with that great Power and Interest which they had both in Legislature and Judicature from the very Foundation of the Government and the Nation it self Even from the time of the Ab-origines if there were ever any such and they have been upon the losing-hand ever since as appears by what I have already observ'd in closing their Rights of Elections And thus they brake in two and became two Houses both at one time and were Twins in their Birth Here was no Primogeniture yet the one went away with a double portion upon the parting And this taking in the History is a confutation of that Opinion That the House of Commons as being by Election was in time long after the Date of the House of Peers surely they started both together Great Selden agrees in the Substance with Mr. Cambden but differs from him only in the time and some other circumstances when this Revolution happen'd And for Mr. Cambden's satis antiquus Author Mr. Selden professes he diligently sought for this Author but could never meet with him nor does Mr. Selden give any credit to that Author He supposes the distinction of Majores and Minores Barones which doubtless did arise upon this Revolution pag. 708. began not long before the great Charter of King Iohn Father to King Henry the Third and that Charter was made in the Seventeenth and last year of King Iohn This Division of Barones which all Writers agree in and which appears by King Iohn's Great Charter evidently shows that the two Houses began at the same time for Majores cannot be without the Minores But Mr. Selden supposes this was done by Act of Parliament though that Act be not now Extant Nor is there any express Memorial of it And he supposes it was not submitted to the King to chuse out whom he thought fit But that the Act of Parliament did mention them by name at first to whom particular Writs were to be directed Some part of the very words of that Charter of King Iohn's we have in Mr. Selden's Titles of Honour pag. 709. and in Sir Hen. Spelman in his Glossary pag. 83. Faciemus says that great Charter Summoneri Archiepiscopos Episcopos Abbates Comites Majores Barones Regni Sigillatim per literas nostras Et praetereà faciemus submoneri in generali per Vice-comites Omnes alios qui in capite tenent de Nobis which is a clear proof that till about this time there was no distinction And that which did Constitute a Parliamentary Baron was his Tenure de Rege in Capite so that all who held in Capite had an inherent Right to sit there And that before this time all came by a general Summons directed to the Sheriff What hath been hitherto said serves to prove That before this time of King Iohn or King Henry the 3 d his Son there was only one great Assembly of the Nation that is of the most Eminent and all the considerable and interested persons of the Nation who came not by Election save those that were chosen from the few and ancient Burroughs Nor was there then any Representative as now And that those great Assemblies were in those times the true Baronage of England and that the word Baronage did not belong only to such as the King by special Writ is pleas'd to call or summon or by Patent to confer the Title upon but as our most judicious Writers tell us the word Baronagium did extend to all Degrees and Orders for they came to all great Assemblies by Tenure till the aforesaid time of Division And there are the footsteps of this Ancient Right still amongst us in that the Freeholders whom we call Free-suitors are still the Judges of that Court which Anciently was the great and buisy Court the County Court. And those Elections that are still remaining of Trustees or Representatives in Parliament and of divers Legal Officers which must be by Freeholders only and the persons to be chosen ought to be out of the Freeholders themselves And so much of the Ancient Constitution of a Baron still remains as that in his Creation he must be entitled of some place that it may favour of the Realty and make the Honour and Title Inheritable And the Baron still continues his Freedom from Arrests as having by presumption of Law an Estate in Land which will make him liable to Justice And therefore a Distringas shall issue out against him instead of a Capias And the Law will allow of no Averment against a Peer that he hath no Lands whereby to distrain or to levy Issues upon No doubt but the Lords had from the time of this great Division ever since a very large though not an universal Jurisdiction nor have they had it from the very first Constitution of the Government as is by some pretended When this great Assembly this great and numerous Body was divided into parts no doubt but the several parts did as the Four great Captains after the Death of Alexander the Great did assume and take to themselves by Agreement several shares of the power that was then dissolv'd The Lords took a large share and the Commons for so now they began to be distinguish'd took the rest and we may reasonably suppose it was confirm'd by some Law that then pass'd and hath been since lost And the like presumption we know is made by our Courts of Law in many like cases And it is well known that the Parliament Rolls of that time are all lost And the best Rule whereby to judge what was allotted to each will be by ancient constant quiet and uninterrupted Usage and Practice Usus consuetudo est Lex Parliamenti The House of Lords did exercise a Jurisdiction in cases of Appeals for Criminal Causes till by the Act of 1 mo of Henry the 4 th c. 14. they were restrain'd That Act doth Ordain That from thenceforth no Appeals shall be pursued in Parliament the Exposition of which Statute must be made by observing the mischiefs that occasion'd the making of that Law and the constant practice after it The preamble recites That many Mischiefs did often arise by Appeals And the History of the times of King Richard the 2 d. the next preceding
chose those that the Saxons call'd Heretoches or Ductores Exercitus whom according to the dialect of the present times we call Lord-Lieutenants and Deputy-Lieutenants and the rest of the Commanders These they chose at their Folk-moot or County-Court These Freeholders chose the Sheriffs of the several Counties which we all know by sad Experience many times nearly concerns our Lives Estates and Liberties For these Sheriffs have the posse Comitatus and the Return of Juries and the Execution of all publick and private Justice These Freeholders had the Election of the Conservators of the Peace who had that power which is now in the hands of the Justices of the Peace and hath been so from the beginning of the Reign of King Edward the Third at which time it was wrested out of the hands of the Freeholders by an Act of Parliament procur'd by Queen Isabel during the Life-time of her deposed Husband and in the Minority of her Son King Edward the Third meerly to gain the power of the Kingdom into the hands of her party that she made against her Husband the deposed King And ever since the Conservation of the Peace hath been in the hands of the Commissioners or Justices of the Peace This we are taught by our Acts of Parliament and by the Learned Lawyer and Autiquary Mr. Lambert in his Eirenarcha Fol. 16. and 19 20. and 147. and by Sir Edw. Coke in his Second Instit. Fol. 174 and 558. These Freeholders ever did and still do to this day chuse the Coroners who were heretofore the most sufficient Knights of the County And they still chuse the Verderors where there are any Forests All this appears to have been the Right of the Freeholders long before the Conquest See Lambert in his Book of the Saxon Laws Fol. 147. among the Laws of King Edward Erant aliae potestates dignitates for Power and Offices Titles and dignities in those times went hand in hand Per provincias per singulos Comitatus totius Regni constitutae qui Heretoches apud Anglos vocabantur sc. Barones Nobiles insignes sapientes Latinè verò dicebantur Ductores Exercitus Isti verò viri eligebantur per commune Concilium per singulos comitatus in pleno Folk-mote sicut Vice-comites Comitatuum Eligi debent Ità quod in quolibet Comitatu semper fuit Unus Heretoch Electus These are not the words of Mr. Lambert or meerly his Opinion and Conceit he only recites the words of the Law in the Saxon times And the Law does refer it to the times of the English or Britons for they were the men who called these Leaders by the name of Heretoches Thus we see how large an extent this word Barones did bear that it comprehended all Tenants in Capite who at first were the only Freeholders Till by Subfeodations the number of Freeholders encrease'd infinitely which caused a great alteration But the first Tenants in Capite had large Possessions Notandum est says Sir Hen. Spelman libere hos tenentes nec tam exiles olim fuisse nec tam vulgares ut hodiè deprehenduntur nam villas dominia in minutas hereditates nondum distrahebant We have set forth their Country Jurisdiction now to speak a word of their Supreme Jurisdiction Sir Henry Spelman in his Glossary tells us Barones olim de causis cognoscebant ad Aulam Regiam delatis There was the last resort and the Court of Equity King William the First says Mr. Selden in the 4th year of his Reign brought the Bishops and Abbots under the Tenure by Barony Concilio Baronum suorum which by the Proofs that I have already offered signify the Tenants in Capite and the Eminent Freeholders and a Parliament as Mr. Selden takes it The Bishops contended earnestly against it for the Power and Jurisdiction being then in the hands of so great a number it made it the less desirable so that as Sir Hen. Spelman tells us The Clergy look'd upon it as a diminution of their former Immunity and Freedom which they had assum'd and adjudg'd due to themselves Detrahere videtur nomen Baronis ab Ecclesiasticarum Immunitate quam tunc Ecclesiastici maximè splendebant Hoc nostratibus says Sir Henry Spelman jugum injecit Omnium Primus Willielmus Senior But in the Tenth year of King Henry the Second Thomas of Becket that proud and insolent Prelate would have cast off this Yoke again like a Son of Belial and he stifly stood upon the Exemption of the Clergy Then says Selden that great Parliament at Clarendon was held And Roger of Hoveden says that Clerus Populus Regni were then Assembled which Mr. Selden expounds to be a Parliament In this Parliament says Selden those Avitae consuetudines which made the great quarrel between Thomas of Becket and King Henry the 2 d. were Recogniz'd And it is very material towards the deciding of another great Controversy that has of late been agitated that Custom for the Prelates withdrawing from matters of Blood is recited as one of these Avitae Consuetudines for the Bishops as I observ'd before out of Mr. Selden had places in those general Conventions in all the times of the Saxons And in all those times it seems it was their custom to withdraw For it was Avita Consuetudo and we know that Customs must be exactly pursued And this Custom is acknowledg'd and declar'd by Act of Parliament the Parliament at Clarendon Though by the Ancient Canons of the Church which was the ground of that Custom at first it was left to their own choice Among those Articles this was one Quod Archiepiscopi Episcopi Universi Personae qui de Rege tenent in Capite habeant possessiones suas de Rege sicut Baroniam sicut caeteri Barones Debent interesse Iudiciis Curiae Regis cum Baronibus quoúsque perveniatur ad Diminutionem membrorum vel ad Mortem Who these Barones were in those times most plainly appears by this very Law viz. They are such Qui tenent de Rege in Capite And what their Right and Power and Jurisdiction is for which purpose I chiefly cite it debent interesse Iudiciis Curiae Regis This Curia Regis plainly appears to be the Supreme Judicature which we are enquiring after and which some late Writers conceive did in all times belong to the House of Peers but 't is a mistake in them by occasion of the word Barones mention'd in it And they think it bears their Signature and peculiarly belongs to them Whereas by this Law it undeniably appears to belong to that vast number of Tenants in Capite And if we may believe Sir Henry Spelman who is fide-dignus the Honour was so much the less because it was transferrable Cum autem feodales isti Barones nomen dignitatémque suam ratione fundi obtinuerint transferre olim aliquando videatur cum ipso fundo The Terra did transire cum Onere for so the Honour being accompanied with a Duty
King tells us what those Mischiefs were When in that disorderly troublesome Reign the Lords were so divided into Feuds and Factions that the Lords who were to be the Judges became Parties and were Appellants one against another This was the mischief Then for the practice after the making of that Act that Law was never intended according to the generality of the words to exclude all Appeals whatsoever but such only as were at the suit of private persons For the constant practice hath been ever since as well as before to admit of Appeals in Parliament when they come to the Lords by Impeachment from the Commons The Lords had and still retain the Jurisdiction over their own Members for trial of Peers in cases Capital The Lords had and still have the Jurisdiction in Writs of Error to examine Judgments given in the King's-Bench but this was under certain Rules and with some restraint for constant and quiet usage and practice do warrant all these Let us enquire into the placita Parliamentaria I mean those that are publish'd by Mr. Ryley of the times of King Edward the First King Edward the Second c. and observe what light they give us The true Title of those Pleas are Placita coram ipso domino Rege ejus Concilio ad Parliamenta sua In which Titles Regis Concilium Parliamentum seem to be distinguish'd and to signify two several things as in truth they did When and how came these Pleas to be discontinued ever since the time of Edward the 4 th When did the Law pass that restrain'd them We have not one such Plea to any effect between the time of King Edward the Fourth and the time of King Iames the First nor from thence to this day near 300 years What is come in the place of them The Placita Parliamentaria were in a strict and regular form of Pleadings The Petition of Declaration the Plea the Replication the Rejoinder and the Continuances entred upon Record in Latin and the process was by Latin Writs and all the Proceedings entred upon Record in Latin as Proceedings at the Common-Law ought to be How came this to be altered All of later times at least before the Lords are in English and the process are English Orders only Had these Placita been before the Lords how happens it that there are so few if any Reports among them of Pleadings upon Writs of Error which the Lords claim as out of all dispute to be within their Jurisdiction Hardly any of these are to be found amongst them and these had been worthy Reporting being in matters difficult weighty and full of Learning What was this Regis Concilium so constantly mention'd in these Pleas as those before whom they were held ☞ Amongst these Records and Pleas we find All the Peers themselves in a Body several times petitioning to the King and this Council and receiving Orders and Rules from that Council It is absurd to think that all the Lords in a body would petition to themselves as at the Parliament held 14 th of Edward the Ryley's Placita Parliamentaria pag. 425. Ex parte Praelatorum Comitum Baronum aliorum porrecta est petitio in hoc Parliamento in haec verba A nostre Senior le Roy a Son Counceil monstrent les Erce-evesque Praelats Counts Barons les auters grantz Seigniors dela terre Concerning payment of Escuage And the Answer to this Petition is per Concilium Regis the like ib. pag. 448. We have another Example of it in the Appendix to that Book viz. of the time of 18 Edward the Second pag. 619. wherein the Lords in a body pray liberty to approve or improve their Mannors without the King's License And the Answer to it is That it could not be done without a new Law to which the Commons would not consent It is evident in those Records and Pleas that others are mention'd to be of that Council then the Peers as pag. 266 and 331. There is an Inhibition by the Treasurer and the Concilium Regis not to deliver a Prisoner and page 386. 14 th Edward 2. the King appointed who should receive Petitions at the Parliament and who should Answer them And those that were appointed to Answer them are called Triers of Petitions These seem to be the persons that made the great Council or the King's Council as they are called in those Records These in Parliaments of late have been wholly discontinued We find this Council while they were in being sate in Places where we cannot reasonably suppose that the House of Lords ever sate as pag. 87. in Mr. Ryley's Placita Parliamentaria Corà m Rege Concilio apud Lond. in domo Ottonis de Grandissono extra palatium ipsius Domini Regis apud Westmonasterium And pag. 98. at Bergavenny and pag. 108. at Stilbeneth extra London which I suppose is meant of Stepney And the Judges are mentioned as Members of this Council pag. 140. not meer Assistants Now we come to Writs of Error wherein it is generally admitted that the Lords have a Jurisdiction and from thence as I suppose it is inferr'd by a parity of Reason that they likewise have a Jurisdiction in Appeals from Courts of Equity An Appeal from a Decree in Equity being something of the same nature with a Writ of Error at the Common-Law It is true our Law-Books are full of this Title and speak of Error sued in Parliament But under favour it is not of an universal Jurisdiction in all Cases of Erroneous Judgments but with divers Restrictions and under certain Rules in our Law-Books It hath been often Resolv'd that the Lords cannot proceed upon any Writ of Error till first the King hath Sign'd a Petition for the Allowance of a Writ of Error to be sued out As in the Year-book of 22 Edward the 3 d. Fol. 3. It is there held that a Writ of Error in Parliament lies not till the King be petition'd for it and till the King have Sign'd the Petition Which Signing is indeed the Commission which gives the Authority And in the case of Edward Hadelow where Judgment was given for the King Upon the King's Signing a Petition for a Writ of Error and the Writ sued out the Roll in which the Judgment was entred was brought by Sir William Thorp Chief-Justice of the King's-Bench into the Parliament Upon which the King assign'd certain Earls and Barons and with them the Iustices to hear and determine the business And before it was determin'd the Parliament was ended yet the Commissioners sate still but the King was gone And it was urged before the Delegates for so they are called That the Judgment could not be Revers'd except in Parliament and there it is said that the King hath no Peer in his Land and that they cannot judge the King How came that in to Debate Why it was in the Case of an Outlawry which is always for the King's benefit and