part of Henry the Third's Reign in whose dayes it is thought the Writ for Election of Knights was framed which is about two hundred years and above a third part of the time since the Conquest to our dayes the Barons made the Parliament or Common Councel of the Kingdom under the name of Barons not only the Earls but the Bishops also were Comprehended for the Conquerour made the Bishops Barons Therefore it is no such great Wonder that in the Writ we find the Lords only to be the Counsellours and the Commons Called only to perform and consent to the Ordinances Those there be who seem to believe that under the word Barons anciently the Lords of Court-Baâ—…ons were Comprehended and that they were Called to Parliament as Barons But if this could be proved to have been at any time true yet those Lords of Court-Barons were not the representative Body of the Commons of England except it can be also proved that the Commons or Free-holders of the Kingdome chose such Lords of Court-Barons to â—…e present in Parliament The Lords of Manors â—…ame not at first by Election of the People as Sir Edw. Coke treating of the institution of Court-Baâ—…ons resolves us in these words By the Laws and Ordinances of ancient Kings and especially of King Alâ—…red it appeareth that the first Kings of this Realm â—…ad all the Lands of England in Demean and les grand Manors and Royalties they reserved to themselves and of the remnant they for the Defence of the Realâ—… enfeoffed the Barons of the Realm with such Iurisdiction as the Court-Baron now hath Coke's Instituteâ—… First part Fol. 58. Here by the way I cannot but note that if thâ—… first Kings had all the Lands of England in Demean 〈◊〉 Sir Edward Coke saith they had And if the firâ—… Kings were chosen by the People as many thinâ—… they were then surely our Forefathers were a verâ—… bountiful if not a prodigal People to give all thâ—… Lands of the whole Kingdom to their Kings witâ—… Liberty for them to keep what they pleased and tâ—… give the Remainder to their Subjects clogg'd anâ—… cumbred with a Condition to defend the Realmâ—… This is but an ill sign of a limited Monarchy by original Constitution or Contract But to conclude thâ—… former Point Sir Edward Coke's Opinion is thâ—… in the ancient Laws under the name of Barons were comprised all the Nobility This Doctrine of the Barons being the Commâ—… Councel doth displease many and is denied aâ—…tending to the Disparagement of the Commons anâ—… to the Discredit and Confutation of their Opinioâ—… who teach that the Commons are assigned Councelloâ—… to the King by the People therefore I will call in Mâ—… Pryn to help us with his Testimony He in his Booâ—… of Treachery and Disloyalty c. proves that before thâ—… Conquest by the Laws of Edward the Confessoâ—… cap. 17. The King by his Oaths was to do Iustice 〈◊〉 the Councel of the Nobles of his Realm He also resolves that the Earls and Barons in Parliament aâ—… above the King and ought to bridle him when he exorâ—…tates from the Laws He further tells us the Peers anâ—… Prelates have oft translated the Crown from the right Heâ—… 1. Electing and Crowning Edward who was illegitimate and putting by Ethelred the right Heir after Edgars decease 2. Electing and Crowning Canutus a meer Foreigner in opposition to Edmund the right Heir to King Ethelred 3. Harold and Hardiknute both elected Kings successively without title Edmund and Alfred the right Heirs being dispossessed 4. The English Nobility upon the Death of Harold enacted that none of the Danish bloud should any more reign over them 5. Edgar Etheling who had best Title was rejected and Harold elected and crowned King 6. In the second and third year of Edw. 2. the Peers and Nobles of the Land seeing themselves contemned entreated the King to manage the Affairs of the Kingdome by the Councel of his Barons He gave his Assent and sware to ratifie what the Nobles ordained and one of their Articles was that he would thenceforward order all the Affairs of the Kingdom by the Councel of his Clergy and Lords 7. William Rufus finding the greatest part of the Nobles against him sware to Lanfranke that if they would choose him for King he would abrogate their over-hard Laws 8. The Beginning saith Mr. Pryn of the Charter of Hen. 1. is observable Henry by the Grace of God of England c. Know ye That by the Mercy of God and Common Councel of the Barons of the Kingdom I am Crowned King 9. Maud the Empress the right Heir was put by the Crown by the Prelates and Barons and Stephen Earl of Mortain who had no good Title assembling the Bishops and Peers promising the amendment of the Lawâ—… according to all their Pleasures and Liking was by thâ—… all proclaimed King 10. Lewis of France Crowned King by the Barons in stead of King John All these Testimonies from Mr. Pryn may satisfie that anciently the Barons were the Common Councel or Parliament of England And if Mr. Pryn could have found so much Antiquity and Proof for thâ—… Knights Citizens and Burgesses being of the Common Councel I make no doubt but we should have heard from him in Capital Characters but alas he meets not with so much as these Names in those elder Ages He dares not say the Barons were assigned by the People Councellors to the King for he tells us every Baron in Parliament doth represent hiâ—… own Person and speaketh in behalf of himself alone but in the Knights Citizens and Burgesses are represented the Commons of the whole Realm therefore every one of the Commons hath a greater voice in Parliament than the greatest Earl in England Nevertheless Masteâ—… Pryn will be very well content if we will admiâ—… and swallow these Parliaments of Barons for the representative Body of the Kingdom and to that Purpose he cites them or to no Purpose at all But to prove the Treachery and Disloyalty of Popish Parliaments Prelates and Peers to their Kings which iâ—… the main Point that Master Pryn by the Title of hiâ—… Book is to make good and to prove As to the second Point which is That untill the time of Hen. 1. the Commons were not called to Parliament besides the general Silence of Antiquity which never makes mention of the Commons Coming to Parliament untill that time our Histories say before his time only certain of the Nobility were called to Consultation about the most important affairs of the State He caused the Commons also to be assembled by Knights Citizens and Burgesses of their own Appointment much to the same Purpose writes Sir Walter Raleigh saying it is held that the Kings of England had no formal Parliaments till about the 18th year of King Hen. 1. For in his Third year for the Marriage of his Daughter the King raised a Tax upon every Hide of Land by the Advice of His Privy Councel alone And
be Kings in Fact and Kings themselves to be but Subjects We read in Sir Roâ—…ert Cotton that towards the end of the Saxons and â—…he first times of the Norman Kings Parliaments stood 〈◊〉 Custom-grace fixed to Easter Whitsontide and Christmas and that at the Kings Court or Palace Parliaments sate in the Presence or Privy Chamber from whence he infers an Improbability to believe the King excluded His own Presence and unmannerly fâ—… Guests to bar Him their Company who gave them theâ—… Entertainment And although now a-days the Parliament sit not in the Court where the Kings housholâ—… remains yet still even to this day to shew that Parliaments are the Kings Guests the Lord Steward oâ—… the Kings Houshold keeps a standing Table to entertain the Peers during the sitting of Parliament and he alone or some from or under him as the Treasurer or Comptroller of the Kings Houshold takeâ—… the Oaths of the Members of the House of Commoâ—… the first day of the Parliament Sir Richard Sâ—…roop Steward of the Houshold of our Sovereign Lord the King by the Commandment of the Lords sitting in full Parliament iâ—… the Great Chamber put I. Lord Gomeniz and William Weston to answer severally to Accusations broughâ—… against them The Necessity of the King's Presence in Parliamenâ—… appears by the Desire of Parliaments themselves iâ—…former times and the Practice of it Sir Robert Cottoâ—… proves by several Precedents whence he concludeâ—… that in the Consultations of State and Decisions of private Plaints it is clear from all times the King wâ—… not only present to advise but to determine also Whensoever the King is present all Power of judging which is derived from His ceaseth The Votes of the Lords may serve for matter of Advice the finaâ—… Judgment is only the Kings Indeed of late years Queen Mary and Queen Elizabeth by reason of theiâ—… Sex being not so fit for publick Assemblies have brought it out of Use by which means it is comâ—… to pass that many things which were in former times acted by Kings themselves have of late been left to the Judgment of the Peers who in Quality of Judges extraordinary are permitted for the Ease of the King and in His absence to determine such matters as are properly brought before the King Himself sitting in Person attended with His great Councel of Prelates and Peers And the Ordinances that are made there receive their Establishment either from the Kings Presence in Parliament where his Chair of State is constantly placed or at least from the Confirmation of Him who in all Courts and in all Causes is Supream Judge All Judgement is by or under Him it cannot be without much less against his Approbation The King only and none but He if He were able should judge all Causes saith Bracton that ancient Chief Justice in Hen. 3. time An ancient Precedent I meet with cited by Master Selden of a judicial Proceeding in a Criminal Cause of the Barons before the Conquest wherein I observe the Kings Will was that the Lords should be Judges â—…n the Cause wherein Himself was a Party and He â—…atified their Proceeding The case was thus Earl Godwin having had a Trial before the Lords under King Hardicanute touching the Death of Alfred Son to King Ethelbert and Brother to him who was afterward Edward the Confessor had fled out of England and upon his Return with Hope of Edward the Confessor's Favour he solicited the Lords â—…o intercede for him with the King who consulting together brought Godwin with them before the King to obtain his Grace and Favour But the King â—…resently as soon as he beheld him said Thou Traytor Godwin I do appeal thee of the Death of my Brother Alfred whom thou hast most trayterously slain Then Godwin excusing it answered My Lord the King may it please your Grace I neither betrayed nor killed your Brother whereof I put my self upon the Iudgment of your Court Then the King said You noble Lords Earls and Barons of the Land who are my Liege men now gathered here together and have heard My Appeal and Godwins Answer I Will that in this Appeal between Us ye decree right Iudgment and do true Iustice. The Earls and Barons treating of this among themselves were of differing Judgments some said that Godwin was never bound to the King either by Homage Service or Fealty and therefore could not be his Traytor and that he had not slain Alfred with his own hands others said that neither Earl nor Baron nor any other Subject of the King could wage his War by Law against the King in his Appeal but most wholly put himself into the Kings Mercy and offer competent Amends Then Leofric Consul of Chester a good man before God and the World said Earl Godwin next to the King is a man of the best Parentage of all England and he cannot deny but that by his Counsel Alfred the Kings Brother was slain therefore for my part I consider that He and his Son and all we twelve Earls who are his Friends and Kinsmen do go humbly before the King laden with so much Gold and Silver as each of us can carry in our Arms offering him That for his Offence and humbly praying for Pardon And he will pardon the Earl and taking his Homage and Fealty will restore him all his Lands All they in this form lading themselves with Treasure and coming to the King did shew the Manner and Order of their Consideration to which The King not willing to contradict did ratifie all that they had judged 23 Hen. 2. In Lent there was an Assembly of all the Spiritual and Temporal Barons at Westminster for the determination of that great Contention between Alfonso King of Castile and Sancho King of Navarre touching divers Castles and Territories in Spain which was by compromise submitted to the Judgment of the King of England And the King consulting with his Bishops Earls and Barons determined it as he saith Himself in the first Person in the Exemplification of the Judgement 2 Of King Iohn also that great Controversie touching the Barony that William of Moubray claimed against William of Stutvil which had depended from the time of King Hen. 2. was ended by the Councel of the Kingdom and Will of the King Concilio regni voluntate Regis The Lords in Parliament adjudge William de Weston to Death for surrendring Barwick Castle but for that Our Lord the King was not informed of the manner of the Judgment the Constable of the Tower Allen Buxall was commanded safely to keep the said William untill he hath other Commandment from our Lord the King 4 Ric. 2. Also the Lords adjudged Iohn Lord of Gomentz for surrendring the Towns and Castles of Ardee and for that he was a Gentleman and Bannaret and had served the late King he should be beheaded and for that our Lord the King was not informed of the manner of the Iudgment the Execution thereof
Barons made an Ordinance touching the Exemption of the Abby of Bury from the Bishops of Norwich In the tenth year of the Conquerour Episcopi Comites Barones regni regia potestate ad universalem Synodum pro causis audiendis tractandis convocati saith the Book of Westminster In the 2 year of William 2. there was a Parliament de cunctis regni Principibus another which had quosque regni proceres All the Peers of the Kingdom In the seventh year was a Parliament at Rockingham-Castle in Northampton-shire Episcopis Abbatibus cunctique regni Principibus una coeuntibus A year or two after the same King de statu regni acturus c. called thither by the Command of his Writ the Bishops Abbots and all the Peers of the Kingdom At the Coronation of Hen. 1. All the People of the Kingdom of England were called and Laws were then made but it was Per Commune Concilium Baronum meorum by the Common Councel of my Barons In his third year the Peers of the Kingdom were called without any mention of the Commons and another a while after consensu Comitum Baronum by the consent of Earls and Barons Florentius Wigoriensis saith these are Statutes which Anselme and all the other Bishops in the Presence of King Henry by the assent of his Barons ordained and in his tenth year of Earls and Peers and in his 23. of Earls and Barons In the year following the same King held a Parliament or great Councel with His Barons Spiritual and Temporal King Hen. 2. in his tenth year had a great Councel or Parliament at Clarendon which was an Assembly of Prelates and Peers 22. Hen. 2. saith Hovenden was a great Councel at Nottingham and by the Common Councel of the Archbishops Bishops Earls and Barons the Kingdom was divided into six parts And again Hovendeâ—… saith that the same King at Windsor apud Windâ—… shores Communi Concilio of Bishops Earls and Barons divided England into four Parts And in hiâ—… 21 year a Parliament at Windsor of Bishops Earlâ—… and Barons And another of like Persons at Northampton King Richard 1. had a Parliament at Nottingham in his fifth year of Bishops Earls and Barons Thiâ—… Parliament lasted but four days yet much was donâ—… in it the first day the King disseiseth Gerard de Canvil of the Sherifwick of Lincoln and Hugh Bardolâ—… of the Castle and Sherifwick of York The second day he required judgment against his Brother Iohn who was afterwards King and Hugh de Novaâ—… Bishop of Coventry The third day was granted to thâ—… King of every Plow-land in England 2 s. He required also the third part of the Service of every Knights Fâ—… for his Attendance into Normandy and all the Wooâ—… that year of the Monks Cisteaux which for that 〈◊〉 was grievous and unsupportable they fine for Moâ—…ny The last day was for Hearing of Grievancesâ—… and so the Parliament brake up And the same yeaâ—… held another at Northampton of the Nobles of thâ—… Realm King Iohn in his fifth year He and his Great mâ—…met Rex Magnates convenerunt and thâ—… Roll of that year hath Commune Concilium Bâ—…ronum Meorum the Common Councel of my Baronâ—… at Winchester In the sixth year of King Henry 3. the Nobleâ—… granted to the King of every Knights Fee two Markâ—… in Silver In the seventh year he had a Parliament at London an Assembly of Barons In his thirteenth year an Assembly of the Lords at Westminster In his fifteenth year of Nobles both Spiritual and Temporal M. Par. saith that 20. H. 3. Congregati sunt Magnates ad colloquium de negotiis regni tractaturi the Great men were called to confer and treat of the Business of the Kingdom And at Merton Our Lord the King granted by the Consent of his Great men That hereafter Usury should not run against a Ward from the Death of his Ancestor 21. Hen. 3. The King sent his Royal Writs commanding all belonging to His Kingdom that is to say Arch-bishops Bishops Abbots and Priors installed Earls and Barons that they should all meet at London to treat of the Kings Business touching the whole Kingdom and at the day prefixed the whole multitude of the Nobles of the Kingdom met at London saith Mat. Westminster In his 21 year At the Request and by the Councel of the Lords the Charters were confirmed 22. Hen. 3. At Winchester the King sent his Royal Writs to Arch-bishops Bishops Priors Earls and Barons to treat of Business concerning the whole Kingdome 32. Hen. 3. The King commanded all the Nobility of the whole Kingdom to be called to treat of the State of His Kingdom Mat. Westm ' 49. Hen. 3. The King had a Treaty at Oxford with the Peers of the Kingdom M. Westminster At a Parliament at Marlborow 55. Hen. 3. Statutes were made by the Assent of Earls and Barons Here the Place of Bracton Chief Justice in thiâ—… Kings time is worth the observing and the ratheâ—… for that it is much insisted on of late to make foâ—… Parliaments being above the King The words iâ—… Bracton are The King hath a Superiour God also thâ—… Law by which he is made King also his Court viz the Earls and Barons The Court that was said iâ—… those days to be above the King was a Court of Earls and Barons not a Word of the Commons or thâ—… representative Body of the Kingdom being any paâ—… of the Superiour Court Now for the true Senâ—… of Bractons words how the Law and the Court 〈◊〉 Earls and Barons are the Kings Superiours theâ—… must of Necessity be understood to be Superiours 〈◊〉 far only as to advise and direct the King out of hiâ—… own Grace and Good Will only which appeaâ—… plainly by the Words of Bracton himself wherâ—… speaking of the King he resolves thus Nec potest 〈◊〉 necessitatem aliquis imponere quod injuriam suam corrigâ—… emendat cum superiorem non habeat nisi Deum 〈◊〉 satis ei erit ad poenam quod Dominum expectat ultoreâ—… Nor can any man put a necessity upon Him to correâ—… and amend his Injury unless he will himself sinâ—… he hath no Superiour but God it will be sufficieâ—… Punishment for him to expect the Lord an avengeâ—… Here the same man who speaking according to somâ—…mens Opinion saith the Law and Court of Earls aâ—… Barons are superiour to the King in this place telâ—… us himself the King hath no Superiour but God thâ—… Difference is easily reconciled according to the Dâ—…stinction of the School-men the King is free from tâ—… Coactive Power of Laws or Councellors but may be suâ—…ject to their Directive Power according to his owâ—… Will that is God can only compell but thâ—… Law and his Courts may advise Him Rot. Parliament 1 Hen. 4. nu 79. the Commons expresly affirm Iudgment in Parliament belongs to the King and Lords These Precedents shew that from the Conquest untill a great
Knights Citizens and Burgesses 4. The Penalty of 40 l for Maiors or Bayliffs making untrue Returns 5. Due Election of Knights must be in the full County-Court between the Hours of Eight and Eleven before noon 6. The Party must begin his Suit within 3 Moneths after the Parliament began 7. Knights of the Shire shall be notable Knights of the County or such notable Esquires or Gentlemen born of the said Counties as shall be able to be Knights and no man to be such Knight which standeth in the Degree of a Yeoman and under The last thing I observe in the Writ for Election of Members for Parliament is That by the express words of the Writ Citizens and Burgesses for the Parliament were eligible at the County-Court as well as Knights of the Shire and that not only Free-holders but all others whosoever were present at the County-Court had Voices in such Elections see the Stat. 7. Hen. 4. cap. 15. I have the longer insisted on the Examination of the Writ being the Power and Actions of the House of Commons are principally justified by the Trust which the Free-holders commit unto them by virtue of this Writ I would not be understood to determine what Power the House of Commons doth or may exercise if the King please I confine my self only to the Power in the Writ I am not ignorant that King Hen. 7. in the Cause of the Duke of Britain and King Iames in the Business of the Palatinate asked the Councel of the House of Commons and not only the House of Commons but every Subject in particular by Duty and Allegiance is bound to givâ—… his best Advice to his Sovereign when he is thoughâ—… worthy to have his Councel asked 13. Edw. 3. nu 10. All the Merchants of England were summoned by Writ to appear at Westminster in proper Person to confer upon great business concerning the Kings Honour the Salvation of the Realâ—… and of themselves In Passages of publick Councel it is observable saith Sir Rob. Cotton that in ancient times the Kings of England did entertain the Commons with weighty Causes thereby to apt and bind them to a readiness of Charge and the Commons to shun Expence haâ—… warily avoided to give Advice 13. Edw. 3. The Lords and Commons were called to consult how the domestick Quiet may be preserved the Marches of Scotland defended and thâ—… Sea secured from Enemies The Peers and Commons having apart consulted the Commons desired Not to be charged to Councel of things of whicâ—… they had no Cognisance de queux ils n' ont pas de Cognisance 21. Edw. 3. Justice Thorp declaring to the Peeâ—… and Commons that the French War began by theiâ—… Advice the Truce after by their Assent accepted and now ended the Kings Pleasure was to havâ—… their Counsel in the Prosecution the Commons being commanded to assemble themselves and when they were agreed to give notice to the King and the Lords of the Councel after four days Consultation Humbly desire of the King that he would be advised therein by the Lords and others of more Experience than themselves in such Affairs 6. Ric. 2. The Parliament was called to consult whether the King should go in Person to rescue Gaunt or send an Army The Commons after two dayes Debate crave a Conference with the Lords and Sir Thomas Puckering their Speaker protests that Councels for War did aptly belong to the King and His Lords yet since the Commons were commanded to give their Advice they humbly wished a Voyage by the King 7. Ric. 2. At the second Session the Commons are willed to Advise upon View of Articles of Peace with the French whether War or such Amity should be accepted they modestly excuse themselves as too weak to Counsel in so weighty Causes But charged again as they did tender their Honour and the Right of the King they make their Answer giving their Opinions rather for Peace than War For fuller Manifestation of what hath been said touching the Calling Election and Power of the Commons in Parliament it is behooful to observe some Points delivered by Sir Edw. Coke in his Treatise of the Jurisdiction of Parliaments where First he fairly begins and lays his Foundation that the High Court of Parliament consisteth of the Kings Majesty sitting there and of the three Estates 1. The Lords Spiritual 2. The Lords Temporal 3. And the Commons Hence it is to be gathered that truly and properly it cannot be called the High Court of Parliament but whilst the King is sitting there in Person so that the Question now a days whether the Parliament be above the King is either false or idle false if you exclude and idle if you include the King's Person in the word Parliament The case truly put and as it is meant is whether the three Estates oâ—… which is all one the Lords and Commons assembled in Parliament be above the King and not whether the King with the three Estates be above the King It appears also that they are much mistaken who reckon the King one of the three Estates as Mr. Pryn pag. 20. and many others do for the three Estates make the Body and the King is Caput Principium finis Parliamentor as confesseth Sir Edw. Coke Secondly Sir Edw. Coke delivers That certain it is both Houses at first sate together and that it appears in Edward the Third's time the Lords and Commons satâ—… together and the Commons had no continual Speaker If he mean the Lords and Commons did sit and Vote together in one Body few there be that will believe it because the Commons never were wont to lose or forego any of their Liberties or Privileges and for them to stand now with their Hats in their hands which is no Magistratical Posture there where they were wont to sit and Vote is an alteration not imaginable to be indured by the Commons It may be in former times when the Commons had no constant Speaker they were oft and perhaps for the most part in the same Chamber and in the presence of the Lords to hear the Debates and Consulations of the Great Councel but not to sit and Vote with them for when the Commons were to Advise among themselves the Chapter-house of the Abby of Westminster was oft-times their place to meet in before they had a settled House and their meetings not being very frequent may be the reason I conceive why the name of the House of Commons is not of such great Antiquity or taken notice of but the House of Lords was only called the Parliament-House and the Treatise called Modus tenendi Parliamentum speaks of the Parliament as but of one House only The House where now the Commons sit in Westminster is but of late Use or Institution for in Edward the Sixth's dayes it was a Chappel of the Colledge of Saint Stephen and had a Dean Secular Canons and Chorists who were the Kings Quire at his Palace at