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A36228 The antiquity and power of parliaments in England written by Mr. Justice Doddridge and several other learned antiquaries. Doddridge, John, Sir, 1555-1628. 1679 (1679) Wing D1791; ESTC R13105 30,734 146

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therefore they shall by their Proxie make their Procurator and depart the House the party indited shall be put to plead to the inditement whereunto if he plead Not guilty he shall be thereof tried by his Peers and first the most puisne Baron shall be examined of his verdict by the Lord Steward and so in order until all they man by man have delivered their Opinion of the matter either in convicting the person standing accused before them or by clearing and acquitting him of the crime if by their verdicts he be thought guilty of the offence thereof is made an Act which when it hath the consent of the King it is then esteemed a Judgement and the Offender thereby is attainted Herein is to be noted that this verdict of the Lords is not upon their Oaths but upon their Honour for persons of so high degree should have so great care for the preservation of their Honour as themselves or any other have for the safe-Guard of their Souls which is admitted in that and in all other Attaynders per Pares by the Peers as well for that they are in that place not onely as Triers of the Fact but also Judges appointed over the fault and never was it used that Judges should verifie their sentence upon attestation thereof upon their Oaths Secondly in this manner of trial they must think that the bread which is broken unto others by them may by the just Judgement of God in like measure be broken unto themselves in that he whom they censure was in equal degree unto themselves Thirdly also for that where the Law requireth at the hands of other persons an Oath it ordaineth that Barons should regard their Honors Secondly it is to be noted that the party so arraigned in Parliament ought to be called to answer for himself for the Law of England is not so unreasonable to condemn any that will defend himself and it hath heretofore been noted as an error in the judgement of the Parliament 21 E. 3.46 b. when they have given a judgment in the cause of any private person he being not called thereunto and that in a civil matter of much less moment then is the cause of life and death wherefore if the party may be had and do not willingly and wilfully absent himself he is thereunto called to answer and therefore the Parliament in 37 and 38 H. 8. was freed of fault herein upon the Attainder of the Duke of Norfolk he then being in the Tower for that it was signified by the Lord Burghley Lord Treasurer in the Star-chamber when as Philip the last Earle of Arundel was called to answer in the Star-chamber to an undutiful Letter written by him to her Majesty that the said Duke was sent unto and would not come to the Parliament and the said Lord Treasurer affirmed that he then being of the lower House was sent thither with others see for this 1 Mar. Dyer 93. p. 24. The Lord high Steward giveth the Judgement upon Attaynder of treason 1 H. 4.1 a. 13 H. 8.12 a. as appeareth by the Judgment given in Parliament 21 R. 2. n. 15 16. The Bills of Attaynder in Parliament are intituled Placita Coronae coram Domino Rege in Parliamento suo Errours in Parliament reversed Now touching the manner how errors in the Kings Courts committed are reversed in Parliament I shall be very brief First the parties that are grieved through any erronious judgment given against them 22 E. 3.3 a. 12 Ass p. 22. 2 H. 7.19 ought to make their petition un-the King or Monarch that it would please him to permit that erronious judgement as is given against them in such Courts from whence they cannot further appeal may be in Parliament reviewed and reversed This their Petition ought to contain the effect of their grief and ought to be endorsed Let right be done unto the parties In this manner Soit Droit fait as Parties Hereupon the Lord Chancellor of England shall make a Writ of error 1 H. 7.19 n. directed unto the Judges of such Courts where the error was committed and now to be reversed by the Parliament by vertue of which writ the Lord chief Justice of England shall in person bring before the Lords in the higher House the said Petition the said Writ of error and the Rolls wherein is contained the judgment and proces wherein error is supposed H. 7.19 2 E. 3.3 and shall there leave the same petition writ and the transcript of the said Record but not the Record it self with the Clerk of the Parliament for that the Record it self shall be brought back again into the said Court for these Reasons 8 H. 5. f. Errour 88. 23 Eliz Dy. 375. First because these Rolls do concern other matter Secondly because if judgment should be there affirmed then the inferiour Court may have Record whereupon to a ward Execution And lastly for that it is a Rule that when a Record is sent from an inferior Court to a higher Court it is never remanded so that if the former judgement should be affirmed in the Parliament and the Parliament after dissolved the party plaintiff should be without remedy wherefore the record is brought back again as aforesaid 1 H. 7.20 And thus the said Petition indorsed the Writ of Errour and the Transcript remaining in the hands of the Clerk of the Parliament the matter shall be signified unto the Lord Steward by whom together with the other Lords Spiritual and Temporal 22 E. 3.3 a. and with the Iudges the same shall be determined or otherwise the King may appoint out a Commission and thereby assigne certain Earles and Barons who together with the Iudges shall determine the same but the Commons shall not intermeddle therewith moreover after that the Transcript is examined with the Record and that the Record is sent back to the former Court the party plaintiff ought to assigne his Error in writing and thereupon shall have a Scire facias against the defendant ad audiendum errores which writ shall be returned the next Parliament ensuing for that the common day of a Scire facias is forty days but because it is uncertain whether the Parliament shall be dissolved or no before that time therefore the said writ shall be returned the next Parliament 8 H 5. f. tit Error 88. but if the writ be sued forth at a Session of Parliament the same shall be returned the next Session after the said errors assigned and the Scire facias pursued the plaintiff shall not enter into Recognisance to satisfie the judgment 1 H. 7.20 if it shall happen to be given against him or to render his body to prison in such manner as is done in a writ of error in the upper Bench sued upon an erronious judgment given in the Common place but he shall still remain in prison for if the party plaintiff should be at large upon such recognisance acknowledged in
admitting the former general Assemblies of the States but permitting onely Provincial-Synods of the Clergy for compounding of the Ecclesiastical causes where nevertheless they sate as Presidents and the Conquerour himself did not challenge to himself so absolute a conquest but the Laws that he made have this Title Hic Intimatur quod Gulielmus Rex cum principibus suit Constitutam And in giving Laws to this Nation fecit summoniri per universos Consultatus Angliae Anglos nobiles sapientes sua lege eruditos ut eorum jura Consuetudines ab ipsis Archiepiscopis Episcopis audiret And often doth he and his Son William call together Archiepiscopos Episcopos Abbates Comites Barones Vicecomites cum suis Militibus ad Consulendum And likewise oftentimes afterwards until the time of Henry first we find that there was Conventus Episcoporum Abbatum Procerum Regni Londini in Palatio Regis VVherefore Polydore Virgil and Paladine are much deceived if they thought that Henry the first held the first Parliament within this Realm Neither do they seem to be of that Opinion their words being that Regis ante tempora Henrici primi non Consue verunt populi conventum Consultandi causa nisi pro raro facere Therefore they might hold some though not so often as did their successors or agreeing with the Manuscript of Canterbury that the first Parliament wherein the Commons were called aswel as the Peeres and Nobles was 16 H. 1. For it is true that after the Conquest until this time the Commons were not called and so at this time they will have it first called by the name of a Parliament Indeed if the policy of the time be noted that may yeeld some difference The Conqueror and his Son William being strangers had no way to make permanent their victory but by adding other Laws and plucking up the old Roots of Families they found and to plant them in themselves as in new grounds So for that age it was their Wisdome to Rule and not to advise with the people But Henry the first a new bud of the old stock being a natural Englishman himself born at Selly in Lincolnshire in love of the English Nation by whom he sought his strength The Normans at that time standing at terms of revolt from him in savour of his Brother Robert Duke of Normandy he well understanding the love of his people called them to those great Counsels and setling the Authority of his Court of Parliament so established his Throne that neither Britaine Dane nor Saxon could ever after till this day disturbe either him or his posterity from the possession of this Land The making of his Laws were by Act of Parliament The Marriage of his Daughter Mawde and the entayling of the Crown to her were done by Act of Parliament The accord between Stephen and him was made by Parliament And consequently all the succeeding Kings since have ever concluded grandia Regni onely in the Parliament Yet all the times since have not kept the said Form of the Assembling of the three Estates for sometimes the Principal of the Nobility were onely called and they at the end of the Parliament were to impart to the other Barons and their Country what was done in the Parliament Afterwards King John ordained that all the Barons of England should come in their proper persons to the Parliament being Summoned 20 Knights Fees after 20 l. a Fee going to the value of an entire County 15 Knights Fees making an entire Baron by which they sate But King H. 3. after that he had smarted by the tumultuation of the Barons their multitudes bringing confusion ordained that those Earles and Barons onely to whom he directed his Writs should come unto the Parliament and none else And this which Hen. 3. began his son Edw. 1. the Founder of our civil estate calling the Barons and appointing the Knights and Burgesses to be elected and of the Barons selected the wisest and such as pleased him and did omit them and their children which did not equal them and their parents in wisdom and vertue so held it on until the time of Edward the Third there being a Writ then in use de Admittendo fide dignas ad Colloquium Some also at that time being called as William Earl of Nottingham to attend upon the King with one hundred and twenty men at armes Lawrence de Hastings Earl of Pembrook with fifty men at armes and William Clinton Earl of Huntington with sixty men at armes and so divers others The calling was with distinction The Bishops and Barons de Negotiis tractaturum Consilium impensuri The Knights and Burgesses ad faciendum Consentiendum Those times had certain Ordinances besides Estatutes for whatsoever the Lords and Commons agreed upon was presently an Ordinance and whatsoever the King gave his Royal Assent unto it then became an Estatute But if after the Parliament the King did Assent unto any Ordinance it then became an Estatute for the Kings answer is no more but le Roy le veult ou le Roy se avisera And before the Printing of Acts was used they were always engrossed and sealed with the great Seal of England and proclaimed in every Shire which use was continued from the time of H. 3. until H. 7. his days and the form was thus The King by the advice of his Lords Spiritual and Temporal at the special instance of the Commons Assembled in Parliament hath made and established these Ordinances and Statutes to the honor of God the good of the King and Realm In which words you may observe a summary of this great Counsel First the Persons the three Estates Secondly the Ends for which the Parliament was called viz. for the honour of God c. Thirdly the Means by Counsel and consent Each duty of the three degrees is insinuated in these three things viz. Request of the Commons Advise of the Lords and Establishment of the King The first expressing the suitours for the Royal Assent is never prayed by the Lords but by the Speaker the Mouth of the Commons The second distinguishing the house The King hearing the causes debated onely by the Lords The third intimating that no Bill receiveth life until the Royal Assent be given So by looking back it is easie to see the great Antiquity of this high Court delivered as you see from before the Romans but never so dignified as since Queen Elizabeths time Now for the Nature of a Parliament it is Consilium and it is Curia the power of it in matters hereditary and personal the proceedings of it in causes criminal and civil the priviledges of it sedentibus servientibus The Offices Officers and Order we leave to a further discourse thus much onely touching the Antiquity of Parliaments in England Temps Edw. le Confessor le sommons doit estre 40. Jours devant le session THe Summons of the Clergy Arch-Bishops Bishops Abbots and Priours that hold
by a County or a Barony are summoned by Writ to come to the Parliament and the King bears their expences of their remaining and aboad and all the other Deanes Arch-Deacons and Persons are summoned to appear by two sufficient Proctors which come with a duplicate of their Procurations whereof one part remaineth with the Clerk of the Parliament and the other with the Proctors 2. The summons of the Laity as Earls Barons and their Peers which hold Lands and rents to the value of a County or of a Barony viz. 20. Knights Fees every Fee being accompted at 20. l. per annum which make 400. l. or 23. Knights Fees and a half which makes 400. Marks per annum and none of the Laity of lesser condition are namely and particularly called by Writ except their presence be necessary for some special and extraordionary cause 3. Next the King sends his VVrits to the Cinque Ports to chuse Barons to answer alleadge and do for their Baronies as if all were present a VVrit under the great Seal for the VVarden for their expences 20. s. 4. Next the King sendeth his VVrits to the Sheriff of every Shire to chuse two Knights of every Shire a Mark for their expences 5. Then the King sends his VVrits to the Cities of London and Yorke or other Cities that are Counties to chuse two grave Citizens and they must also have a Mark for their expences 6. And then the Kings VVrit goeth to the Bailiffs of Boroughs to chuse two Burgesses There must be two principal Clerks of the Parliament and they must sit in the midst of the Justices to enrole all the Pleas and businesses of the Parliament not being Clerks to the Justices for there is no Justice in England hath any power or Jurisdiction in the Parliament but that the King calleth them thither to assist the Lords and to hear and determine petitions for the two Clerks are immediately subject to the King except the King assigne some of the Justices to examine their Rolls These Clerks enrole all the Judgments given in the Parliament and before the end of the Parliament they deliver them over to the Treasurer keeping a Transcript or Counter-roll to themselves their wages a Mark a day Other Clerks were assigned by the King to the Bishops and others to the Proctours of the Clergy another to the Earls and Barons another to the Knights another also to the Citizens and Burgesses these set down all doubts and answers and are present in their Counsels and being at leisure they assist the two principal Clerks to enrole the Acts of Parliament If a matter of difficulty either concerning Peace or War be moved in Parliament the King wil enjoyn all the several degrees or tribes of the Parliament the Bishops the Proctours the Barons c. to go apart into several places and the case is to be delivered to their several Clerks whereupon they are to debate amongst themselves and to advise and if all or the greatest part do not agree then the Lord Steward the Lord Constable and the Lord Marshal are to chuse thirty five out of the number two Bishops three Proctors two Earls three Barons five Knights five Citizens and five Burgesses and these thirty five men may chuse twelve and these may descend to six these six to three and these three to two and these two to one and so one person may determine a cause except the King gainsay it which he may do during the Parliament otherwise nor There be three Degrees of businesses in the Parliament 1. Wars or matters touching the Kings person the Queen and the Kings children 2. The publick businesses of the Commonwealth 3. The private and particular matters yet these are to be handled as the Bills come in by priority The principal Cryer of the Parliament the Chancellour Treasurer and Barons of the Exchequer shall record the defaults of all those that are summoned A Sermon before the Parliament must be provided by the Arch-Bishop in whose diocess it is holden Proclamation must be made in the Hall or Monastery where it is holden and in the City or Town that all men by a certain day bring in their petitions c. The Chancellor or the chief Justice of England is to declare the cause of the Summons of the Parliament The King in state ever to be present in the Parliament if he be not sick if he be sick to send for twelve persons of the house to see his person and to satisfie the house of the cause of his absence For the session the King sits alone The Arch-Bishop of Canterbury on his right hand Yorke on his left hand and so every man in his degree and the Lord Steward is to see that every man sit amongst his Peers The Ushers of the Parliament stand within the door of the house and the Cryer stands without the door and the Kings guard stands a good way without the door to keep tumults and crowds of people from about the door All sit except he that speaks who must stand to speak that all may hear None is to go in or out of the house but at one door onely The King never requires aide but for war or to make his Son a Knight or to marry his Daughter and that in full Parliament Two Knights of the Shire are greater then any one Earle or Baron and two Proctours then any one Arch-Bishop or Bishop and the King can hold his Parliament without any Arch-Bishop Bishop Earle or Baron with the Commons alone for there was a Parliament before there was any Barons but if the Commons do not appear there can be no Parliament though all the great Peeres of the Realm were present with the King for the Proctours Knights Citizens and Burgesses of the Realm do represent the whole Commons of the Realm but the great Peers of the Realm are present onely for themselves and for no others The Parliament ought not to be dissolved as long as any Bill remaines undiscussed if it be the King is perjured and publick Proclamation is to be made in the Parliament and in the Palace that if any have any petition he ought to come in and if no answer be made it is to be intended that all men are satisfied Any man that will may have a Transcript or Copie of the Acts before they be printed paying for the same 10. l. 5. s. or 10 l. 08 s. 01 d. And the Parliament may be holden in any place where it shall please the King viz. at Oxford at Kennelworth at Marlborough at Gloucester at Acton-Burnel at Leicester at the Blackfryers c. 14 H. 8. DODDRIDGE Of the Antiquity of the Parliament of England THe Ancient and first Parliament that I have read of is that in Polydore Virgil in the reign of H. 1. in the 16 year which was about the year of our Lord 1116. And this was held at Salisbury as he saith where were assembled with the King all the
27 and 28 Eliz. for chusing of Knights and Burgesses they elected one Mr. Tresham and Mr. Fermour for the Knights after issued out another Writ of Election out of the Chancery and they elected the said Mr. Tresham and Mr. Heyden both writs were returned and which of them should be Knights was the Question the matter was long debated and at length resolved that the first Writ should stand and the last void Having shewed thus briefly of the Manner of Election onely a Word more of the continuance of their Authority being thus chosen and returned namely that as long as the same Parliament continueth they shall still remain Knights of the Parliament but being once dissolved their power is throughly determined for in a new Parliament the Knights of the former Parliament cannot sit as Knights therein except they be again to that end new elected 4 E. 4.44 b. by Catesby Wherefore it is by him said there That if a Parliament be summoned and the Members of both Houses appear 4 E. 4.44 b and sit during which their sitting if the Parliament dissolve by demise of the King the new King shall make a new Election The second day of the Parliament Philip Courtney being returned for one of the Knights of Devon came before the King in Parliament and for that he was accused of sundry haynous matters prayed to be discharged until he were purged the which the King granted and on Munday after at the request of the Commons the King restored him to his place and good name for that he had submitted himself to reasonable arbitrement 16 R. 2. n. 6. I thought to have discoursed briefly touching the Fees of Knights and Burgesses of Parliament and in what manner and by what writ they are to be levyed and what Lands are chargeable or to be discharged thereof but I omit this in regard the levying of those wages hath been so long time out of use Now I shall touch very lightly upon the manner of proceeding upon Bills in the House of Commons and upon the manner of Attaynder in Parliament and the manner of proceeding upon writs of errour in Parliament Causes in the House of Commons are proceeded upon in two sorts the one If any man whatsoever do feele or do know the Commonwealth to be grieved with any Enormity and be desirous for the Weale of his Country to have the same reformed he may exhibit privately unto the Speaker a Bill made and framed in the manner of Law with Preamble purview and proviso containing the said grief and manner how he would have it redressed which Bill the Speaker shall afterwards cause the Clerk of the Parliament openly to read in the same house and after expound the same himself to the House and then upon the matter to fall to disceptation and debating The other way is by motion made of the grievance whereupon the House may commit the matter to such persons as shall frame a Bill thereof and so the matter likewise to come to debating the reason of which speech there by motion is grounded on the Writ of Summons of the Parliament and because all men in the House have not the skill aptly to frame a Bill But to propound any matter in the House by way of Question concerning their Opinions in any thing it is not usual but utterly to be rejected And therefore in the Parliament 31 Eliz. one Mr. Damport offered unto the House certain Questions to be considered of which were then refused and the House resolved upon the former orders In the Parliament holden 27 Eliz. when as a Bill concerning fraudulent gifts was dashed and rejected because of imperfections therein nevertheless upon a motion made by Mr. Morish of the middle Temple the House considered of the matter a new and committed it to have a new Bill drawn which was done and the same passed and is the same Act now in print touching that matter In Parliament 15 E. 4.2 a. if the greater part of Knights and Burgesses assent to the making of an Act of Parliament and the lesser part will not agree to that Act yet shall it be a good Act to dure in perpetuity which greater number of voyces in the Higher House may easily be known in that they are severally demanded and the Clerk of the House doth number them but of the House of Commons otherwise it is Pl. Com. Rice Thomas and Bulkly 126. a. for there the assent is tryed by the sounding of voyces all at one time and therefore if the assent there be issuable the party that so pleadeth it shall say it was agreed by the greater number generally But ere they do proceed to the Question it is asked them if they will so do then is it said by the Speaker to this effect Such as will affirm the Bill say I and such as will not say No the one or other being known by the greatness of the sound of the voice the matter is held so determined and this may be done upon the first reading of a Bill for in the Parliament holden in 31 Eliz. there was an Act exhibited that the issue in tayle might be charged in debt as heir and upon the first reading was debated on both sides and at length rejected by like sound of voyces If the Bill be first exhibited in the House of Commons and there twice read 33 H. 6.17 b. 18. a. 7 H. 7.16 b. then is it engrossed and so read again the third time if after upon disputation thereof they do proceed to the Question and so agree by the greater number of voyces to pass as an Act then is it indorsed in this manner Soit bayle as Seigniors which Bill if it also be agreed upon by the Lords it is likewise indorsed Les Seigniors ont assentus and so waiteth it onely the assent of the Monarch to make it an Act of Parliament but if the Lords will alter the same that may be done in two sorts either by such meanes as doth include and stand with the doings of the Commons as if the Commons grant Poundage for four years and the Lords do grant it but for two years this Bill shall not be redelivered unto the Commons for that it standeth with their grant but if the agreement of the Lords do not stand with the agreement of the Commons then it is sent againe to the Commons to be reviewed and again to be debated 33 H. 6.17 b. Attainder by Parliament Concerning Attaynder by Parliament the party which is to be attainted by Parliament ought first to be be indicted in some other Court having Jurisdiction to receive the same which enditement ought to be sent into the higher House of Parliament by vertue of a Certiorari upon which inditement the party shall be called to answer before the Lord Stewards of England and other the Barons but because the Archbishops and Bishops being the Lords Spiritual cannot assent unto the death of any person
Prelates Nobles and Commons to consult for the publick Weale and as he thinketh before that day the King never called the people to consult and make Laws and he deriveth the name from the French word Parler There is an ancient Roll in some mens hands which describeth the whole State and order of the Parliament and the Title of it is De modo tenendi Parliamentum And it is further described Parliamentum Regis Angliae Angles summoneri tenebatur temporibus Regis Edwardi filii Ethelredi qui modus Recitatus fuit Coram Willielmo Duce Normaniae Conquestore Rege Angliae per ipsum approbatum By this it should seem that Parliaments as they are described in that Roll were held in the time of Edward the holy for he was the Son of Etheldred for Edward the elder was the Son of Alphred and this Edward the holy lived about the year 1043. And by this it should also seem that the Conqueror held a Parliament In this it is first set down what Clergy-men were called which were not onely Bishops but Abbots and Priors that held per Baroniam by which I gather that they came not to that place as they were spiritual men but by reason of the temporal honours they enjoy in the Commonwealth for they have a place in the convocation-house in respect of their spiritual function and in that also they are a part in the Court of Parliament We read of a Parliament in 35 E. 1. in which were sixteen Abbots and eight Priors but how many of those were of the higher house I dare not define or rather were of the house ingeneral for I know it is not clear that there was not then a distinction of houses The first Title is De Clericis the second De Laicis the third de Militibus the fourth De Civibus the fifth De Burgensibus all other circumstances of place times orders and such like are recited which I omit to remember particularly because I know it is a thing well know to all and that it differeth from the order of that Court now used The Court of Parliament hath a double power the one to consult by way of deliberation for the good Government of the Common-wealth and so it is Consilium non Curia another power it hath as a Court in Administration of Justice The principal purpose of that Assembly seemeth to be for Consultation for the Writs are ad Consultandum deliberandum but being Assembled they may hold Plea of causes But this difference I find that in criminal causes both the upper house and lower house intermedleth therewith as in Attainders onely and the spiritual Lords do all go out of the house and give their assents by Proxie 10 E. 4.6 But in civil causes as in VVrits of Error sued there out of the Kings Bench the upper house onely medleth as is well described in the case 1 Hen. 7.19 20. in a VVrit of Error sued by one Flowerdue on a Replevin wherein Judgment was given against him in the Kings Bench. But we have an express Authority in the 4 H. 7.18 That in a criminal cause the Commons must assent for there the King and Lords did attaint one and nothing was said of the Commons therefore by the Opinion of the Justices the Act was held void and the party restored The Peeres of Scotland were wont to come to our Parliament for in 39 E. 3.35 in a VVrit of ravishment de Garde against Gilbert Umfrevil he demanded Judgment of the VVrit because he was Earle of Anguish and not so named in the VVrit Anguish saith the Plaintiff is out of the Realm I but said the Defendant I am summoned to Parliament by that name and the VVrit was abated this proveth that the Peeres of Scotland came to our Parliament for Justice but Littleton saith 20 E. 4.6 that we shall implead an Earle or Duke of France by the name of Knight onely I need not dilate of the nature of the Parliament that it is a body politique or of what parts and members it consisteth for that is very well understood of all learned men neither of the order of it at this day for most know that of their own experience the priviledges of it are great and may more safely be discussed what they are without the house in regard of others then what they are in the house for their liberties there Of the Antiquity of Parliament THat which we in English call Parliament I suppose and know to have taken the name from the French or Norman tongue sounding upon the word Parle or Parler to speak or discourse In Latine I find that it was called before the Conquest by two names the one called Synodus taken from the Greek which is used most for the Assembly of spiritual men to treat of Divine causes and so was practised when Augustine came to Canterbury where the King of Kent called Ethelbert gathered his Nobles and people to understand the message and preaching of Augustine and again it is termed Consiliatio as hereafter I shall set down and hereafter in that sence in Anno Dom. 833. Withlasias Dux Wiviorum a great Lord or Peer amongst those of the Frennes called Girrii or Girrogii in his Chapter for the foundation of the Abbey of Ramsey in which he termeth Egberte King and Ahelwolf his son to be Dominos suos he dateth his said Charter thus Datum apud Londini Civitatem ubi omnes Congregati sumus pro Consilio Capiendo Contra Danicos piratos littora Angliae assidue infestantes This mentioneth Ingulphus so as it appeareth when any imminent peril drew neer for the hurt of the Commonwealth that then there were called the Nobility and wisemen called in the History of Eli Duces Principes Satrapae Rhetores Causidici also Convenerunt Agelinum Aldermanum Episcopos Oswynum omnes meliores Concionatores de Com. c. And the same Author sheweth that Brithmothus a most Noble Duke of Northumberland was called Alderman idest senior vel Dux qui synodo magna Constantia restituit Regem Edgarem alios Monachos dicens nequaquam se ferre posse ut Monachi ejicerentur de Regno qui omnem Religionem tenuerunt coluerunt in Regno King Offa in his Charter granted to the Abbey of Chertsey hath these words Hanc libertatem omnia praedicta praefatum Monasterium pertinentia in synodali conventu in loco qui nominatur Aeccleate testes consistentes concensi subscripsi c. in historia Chertsey penes me remanen Canutus the Dane beginning his Laws sheweth plain that he made the same by the Advice and Councel of a Parliament and beginning thus Haec est Consiliatio quam Canutus Rex meditatione vel decreto suarum sapientum consiliatus est cum suis sapientibus apud Wintoniam c. When I observe an old written Copie with a Comment thereupon they are expounded thus Consiliatio id est Institutio multorum facta Consilio
Idem Constitutionem pro Institutione ponit ut inuit haec non instituta fuisse suo proprio Arbitrio sed multorum Consilio And the said King Canutus in the Preamble of his said Laws sheweth that he decreed his said Laws in this manner Convocato itaque Comitum Procerumque Conventu ut Episcoporum Abbatum caeterorum Nobilium nec non caeteris nobilitatis sapientiaeque totius Angliae Consilio satagebat communi decreto ut in quantum humana ratio valuit ea quae justa fuerant stabiliret c. And in the said Preamble is set down that before his time Synodes or Assemblies for the Commonwealth were very rare saving Ecclesiasticae institutiones synodorumque conventus apud Anglos Inusitati adhuc fuerunt And the reason I suppose was that before Canutus the Realm was governed by sundry Kings but he having conquered them all and reduced them into one Monarchie alleadgeth in his Preamble Sicut sub uno Rege ita una lege Universum Angliae Regnum regeretur so as I conclude in this point that before Canutus there were no Parliaments in England the reason I have shewed before which was the diversity and continual interwar between the Heptarchy by him reduced to a Monarchy Since his time I find that Edward the Confessor in his Charter made to Westminster-Abbey did seal and signe the same at a Parliament for thus he saith Hant Igitur donationis libertatis chartam in Die dedicationis praedictae Ecclesiae recitari jussi Coram Episcopis Abbatibus Comitibus omnibus optimatibus Angliae omni populo audiente vidente where note these words Omnibus optimatibus Angliae and omni populi audiente vidente which cannot be but in a general Assembly by Summons and that is proved by the number and diversity of the witnesses being Bishops Abbots Knights Chancellors Kings Chaplains Dukes Earles Ministri Milites c. And William the Conqueror in his Charter of the Ratification of the liberties of that Church after he hath subscribed the cross with his name and besides him a great number of others of the Clergy and Nobility in stead of Cummultis aliis hath these words Multis praeterea illustrissimis virorum personis Regum principibus diversi ordinis omissis qui similiter huic Confirmationi piissimo affectu● testes fautores fuerunt Hii etiam illo tempore a Regia potestate e diversis provinciis urbibus ad Universalem Synodum pro causis Cujuslibet Sanctae Ecclesiae audiendis tractandis ad praescriptum celiberrimum Caenobium quod Westmonasterium dicitur Convocati c. And in another Charter of his to the said Abbey are these words Anno Incarnationis Dom. 1081. regni etiam praenonominati gloriosi Regis Willielmi iv Convenientibus in unum cunctis primis primatibus in nativitate D.N. I. C. I read not in Rufus time of any Parliament But it appeareth in the Red Book of the Exchequet that H. 1. before the Constitution or making of his Laws setteth down Quae Communi Consilio assensu Baronum Regni Angliae c. And then proceedeth Omnes malas consuetudines quibus Regnum Angliae opprimebatur inde aufero quas ex parte suppono Testibus Archiepiscopis Episcopis Baronibus Comitibus Vicecomitibus optimatibus Regni Angliae apud Westimonaster ' quando Coronatus fui The marriage of his daugter Mawde and the entayling of the Crown to her and her heirs was done by Parliament the Accord also between him and Stephen was done by Parliament and so consequently all matters of Importance were done and concluded in Parliament and of such force is an Act of Parliament here in the governance of the State of the Realm as it is deemed as an Oracle from Heaven and resteth onely in the Kings and Queens power to qualifie and mitigate the severity thereof And thus much of the Antiquity I leave to others to discourse of the manner how they that are to treat therein are to be called and of their priviledges and so I end AGAR Of the Antiquity of Parliaments THe diligent observers of the Antiquities of this Realm do very well know that Acts of Parliament are of so high a nature that they do not onely tie the Inheritance of every man but what is there ordained every subject of the Land is bound to take notice of at his peril and because no man that should desire to inform himself therein should be ignorant what was done in Parliament as now we use printing of the Acts so before printing all the Ordinances affirmed by royal assent were recorded and then published under the great Seal of England with a general preface and proclaimed in every Shire this you may see continued from the time of H. 3. till about H. 7. his days and ordinarily the form was thus The King such a day and such a place as at Westminster the 20 day of April in the second year of the raign of King H. 6. by the advice of his Lords spiritual and temporal and at the special instance and request of the Commons Assembled in Parliament hath made and established these Ordinances Acts and Statutes to the honour of God the good of the King and Realm in form following and then sets forth every Act in particular Chapters Here you may see the persons assembled the end of their meeting and the means to make it effectual the persons which meet at the Parliament are the three Estates of the Realm first the King Secondly the Nobles spiritual and temporal Thirdly the Commons of the Land The end of the meeting is to do something to Gods glory the Kings good and the benefit of the whole Land and the means to effect the same is by consultation and consent The particular duty of each of these three seems to be insinuated in these words first the request of Commons secondly the advice of the Lords thirdly the establishment of the King the Commons being most in number and such as live in all the parts and places of the Land are like to have most and best notice of such things as are most likely and meet to be provided for and being weak in power and most subject to feel such inconveniences as greatness may lay upon them and therefore are fittest either first to lay open their griefs and pray Reformation or though they be not able at the first with Judgment to foresee ensuing dangers yet the same being once proposed and instantly apprehended they may with instance importune allowance of such Laws as may turn to their good and our own experience teacheth us that the Royal Assent is never prayed by the Lords but by the Speaker who is the mouth of the Commons In the presence of a prince a common person will scarce have the audacity to speak but when necessity maketh him crave help and therefore 't is properly said That the King advised with the Lords because he heareth the
causes debated with them only the Commons being separated from consultation what were fit to propose in some other place Whatsoever the Lords and the Commons agree upon is an Ordinance presently though it be never engrossed and sealed with the great Seal and proclaimed in the counties as the common course was but it took not effect as a Statute till the King declared his Royal Assent which he might very well do by Writ after the Parliament aswel as during the Parliament per. 29. E. 3. f. 4. b. 39 E. 3 f. 7. For the Kings answer is no more but that he will be advised whether he will assent or no and if he assent not till after it is some doubt whether it be an Act of Parliament from the first day of the Parliament or but from the time of the Royal Assent given The general Assent of the Realm to make Ordinances and Laws the ancient writers called Consilium Commune Consilium Magnum Consilium Placitumgenerale Curia altissima Parliamentum generale seu altissimum The Saxons called it Genote Pirena cor Pirena Gemore Ealpa Zemots Synodus I find not the word Parliament before the beginning of E. 1. fully in use amongst us But the Assembly of the three Estates to consult for the affairs of the Commonwealth is as ancient as the Britains and continued here in the time of the Saxons Danes and Normans I ground my opinion for the Britains from no express authority but by inference out of divers 1 E. 1. Caes Com. lib. 5. cap. 5. saith Summa Imperii Bellique administrandi Communi Consilio Comissa est Cassibulano So that here we have the name and if you think that the Commons were not called to this consultation hear what Sothilius saith of the Britains Apud hos Populus Magna ex parte primatum tenet exclude them of these general counsels and you deprive them of this right Vitus in histororum Britanorum lib. 8. fol. 11. saith that Arthurus victor cum Regio splendore Londinum ingreditur eaque urbe Convocatis Clericis Principibusque suae quidem potestatis omnibus Consilium quid optime factu opus sit capit Beda lib. 2. cap. 2. saith the Britains told Augustine se non posse absque suorum Concensu licentia priscis abdicare Moribus Beda lib. 2. cap. 13. Rex Edwinus antequam fidem Christianum susciperit dixit se cum amicis Principibus Consiliariis suis Collaturum habito cum sapientibu● Consilio c. The story of the Saxons and their Laws make evident proof that they were still of the same mind transplanted hither as Tacitus saith the Germans were Nec Regibus infinita potestas De Minoribus Rebus Principes Consultant de Majoribus vero omnes Historia Eliensis lib. 2. de Dunelme mortuo Rege Edgaro Lessius vel lepsius a Deo ac sancto Petro abstulit cum Rapina Burch vendales Cateringas postea antea Elicibatur generale placitum apud Londinum ad quod dum Duces Principes Satrapae Rectores Causidici ex omni parte confluxerunt beatus Ethelwaldus Lessium in Jus protraxit coram cunctis Injuriam patefecit bene aperta discussa ea omnes Ethelwaldo per Judicium rediderunt Burch vendales Katheringas Abendon Lanboke fol. 91. in Charta Regis Etheldredi Affricum cognomento puer Pronbroche Willemetrantum Syrene a quadam vidua Eadfield appellata violenter abstraxit quia cum Ducatusico contra Regem Etheldredum reus extitit omnes possessiones ejus Regis dictioni subastae sunt quod ad Synodale consilium ad Cirencester universi Optimates mei simul in unum convenerint ad eundem Affricum Majestatis reum de hac patria profugum expulerunt Ingulphus hath many places to the like purpose but I will use but one Infesto Nativitatis beatae Mariae cum universi Magnates Regni per Regium edictum summoniti tam Archiepiscopi Episcopi Abbates quam caeteri totius Regni proceres optimates Londini Convenerunt ad tractandum de Negotiis publicis totius Regni Consummatis omnibus coram universis Domino Turketillo Abbati Monacisque suis accersitis Rex Eldredus dedit Monasterium de Croyland c. Polydore Virgil and Paladine are therefore much deceived if they thought that H. 1. was the first that held any Parliament within this Realm neither do they seem to be of that Opinion their words are these Regis ante tempora H. 1. non Consueverunt Populi Conventum consultandi causa nisi pro raro facere Yet I think their successors held Parliaments oftner then they did yet nevertheless they held some and William the Conqueror chalenged not so absolute a Conquest of this Land but the Laws he made have this Title Hic intimatur quid Gulielmus Rex cum principibus suis constituit c. And I think all Kings may yeeld to consult with their people for that reason which Alphred used in the preface to his Laws Temeritatis videatur ex suis ipsius decretis quanquam plura literarum Monamenta consignari cum in certum sit qualem habet apud posteros vel habitura sint fidem quae nos Magni facimus I have not seen Arthur Halls Book whereby he disalloweth the Commons to have any voice in Parliament and for which he is disabled to be of the same house for ever but I think he mistaketh some writers meaning which spake onely of Barons or Magnates but words are not much to be regarded insomuch as whatsoever the Parliament alloweth it bindeth as a Law though it be set forth onely in the Kings name as the Statute of Glouc ' and Magna Charta or in the name of the Commons onely In the Kings Oath the word Populus extendeth to the greatest subjects and so doth it also in the Recognizance of the peace or good behaviour quod bene se gerat erga Populum cunctum If therefore he strike or misdemean himself towards a Baron the Recognizance is forfeited There is an express Authority that proveth that the word Magnates comprehendeth the people Hoveden saith Anno 1170. Rex celebrabat Magnum Consilium Londini cum Principibus Magnatibus terrae de Coronatione A. filii sui D. in sequent ' Clerico populis Consentientibus fecit ipse filium suum coronari FRANCIS TATE Of the Antiquity of Parliaments THat there were such like Assemblies as Parliaments now are before the Romans arrival here some gather by the words of Caesar lib. 5. de Bello Gallico summa imperii Bellique administrandi communi Consilio permissae est Cassibulano And for not such due holding of such common Counsels Tacitus seemeth to refer the the happy proceedings of the Romans against the Britains Quod in Communi non Consuluerunt These two Parliament-like Assemblies the Britains do call Kifrithin because Laws therein were enacted The English Saxons as soon as they had setled themselves held also the like Assemblies
which they called in their ancient English tongue Gereduysis or a Counsel sometimes Wittena Mota as a meeting of wise men and sometimes by the Greek word Synoth The Latine Authors of that age did call it Consilium Magnatum Conventus and Praesentia Regis Praelatorum Procerumque Collectorum as appeareth by the Charter of King Edgar to the Abbey of Crowland in the year 961. At which time it seemeth by the subsigning that Abbesses had their voices there and consents aswel as the Prelates and Nobles of the Land After the Norman Conquest the two first Kings reigned with their swords in their hands absolutely of themselves viz. the Conqueror and William Rufus his Son not admitting of themselves any general Assemblies of the States of the Realm but permitting onely provincial Synodes of the Clergy for the composing of Ecclesiastical controversies as some write wherein they themselves sate nevertheless as Presidents yet in their meetings as it is in Hovedon where he setteth down the Lands of William the Conqueror he did set them down And by the Counsels of the Barons fecit summoniri per universos Consultatus Angliae Anglos nobiles sapientes sua lege eruditos ut eorum jura Consuetudines ab ipsis audiret Electi igitur de singulis totius Patriae Comitatibus viri Duodecem Jurejurando Confirmaverunt primo ut quoad possint recto tramite neque ad dextram neque ad sinistram partem divertentes legem suarum Consuetudinem sanctitatem patefecerint nil praetermittentes nil addentes nil praevaricando Mutantes And oftentimes he and his son William called together the Arch-Bishops Bishops Abbots Archiepiscopos Episcopos Abbates Comites Barones Vicecomites cum suis militibus and in the time following we find that there was conventum omnium Episcoporum Abbatum Florentius Vigorniensis procerum Regni Londini in palatio Regis But an old Manuscript Book saith That the first Parliament wherein the Commons were called aswel as the Prelates and Nobles Liber Cantuarmu was in the sixteenth year of H. 1. and then was first called by the name of Parliament as some say from the Peeres a potiore parte quasi parium Conventus some derive it from the Peeres ridiculously quast Parium lamentum others more probably derive it from the French word Parler as that of the Greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is to treat and to confer together Some of the French Historians write that this name in this sence began at an Assembly of the Peeres of France about the yeer of Christ 1200. But I find the word to have bin in use with us in this Realm long before for Ingulphus who died in the year 1109. used the word for the meeting or Chapter of the Abbot and Covent writing thus Concessimus etiam tunc seriantiam nostrae Ecclesiae semiano de Leke qui veniens coram conventu in publico Parliamento nostra similiter Juramentum praestitit quod fidus fidelis nobis existerit Neither do I doubt but that the word was brought into this Realm by the French Monks and first used by the Statists in the time of H. 1. and since that time the authority of this Court hath stood setled and the Communalty hath had their voice which the said H. 1. granted unto them being a natural Englishman himself and in love of the English Nation when at that time the Normans were on the terms of revolt from him in favour of Robert his Brother Duke of Normandy Now for the form of Assembling of these three sorts of Estates in this high Court I find no certainty till the time of King John It is apparent by a Petition exhibited by the Lord Fitz-Hugh in a Parliament holden at Leicester 2 H. 1. that the principal Nobility were onely called and they after the end of the Parliament to impart unto the Barons and their country what was done in the Parliament Afterwards King John ordained that all the Barons of England should come in their proper persons to the Parliament whensoever they were summoned The form I will deliver out of the words of the petition Ipse Dominus Rex generalis summonitiones vicecomitibus cujuslibet Comitatus diligeret ipsos injungendo quod omnes Comites Barones quorum nomina infra scripta fuerunt infra suas balivas residentes ipsi summonirent ad veniendum ad Parliamentum Regis hoc non omittatur quacunque ex causa sub paend Magni Contemptus at which time as it is in the Book intituled Modus tenendi Parliamentum all Earls which have Lands Tenements and Revenues to the value of an entire County at twenty Knights Fees after twenty pound a Fee or the value of an entire Barony which is fifteen Knights Fees and a half came to the Parliament but when so great a multitude coul not but breed tumultuous confusion King Henry the third after he had smarted by these confused multitudes of Barons ordained that those Earls and Barons unto whom he directed his Writs should onely come to the Parliament so in the ancientest Summons that I have seen which were in 49 H. 3. there were called besides the Earls onely 17 Barons This which King H. 3. began was fully perfected by King Edward the first his Son who elected the wisest and such as pleased him and likewise omitted them and their children in their summons if they did not equal their Parents in wisdom and other good parts and offices of valour and government so we see in that time Hilton Corbet Point Leyburne Vavasour c. and such other like were summoned once or twice in Parliaments and their posterity wholly omitted afterwards The Barons and Bishops were called De Negotiis tractaturi Consilium impensuri The Knights and Burgesses ad faciendum consentiendum iis quae ibidem de communi Consilio dicti Regni nostri favente Deo contigerit ordinari super Negotiis antedictis And in the same words were the Clergy called ad faciendum consentiendum so as it seemeth they had asmuch to do in Parliament then as Knights of Shires and Burgesses WILLIAM CAMDEN Of the Antiquity of Parliaments in England I Find in many ancient Histories that the Kings of this Land did use to call together the Nobility and Estates of the Realm to confer with them especially about matters of War when any necessary occasion did move them thereunto But it is thought by Holinshead in his Chronicle that the first use of the Parliament did begin in the 17 year of H. 1. which since that time hath remained in force and is frequented unto our times insomuch as when any thing is to be decreed appertaining to the State of the Commonwealth it shall not be received as a Law until by the Authority of that Assembly it shall be established And because the house of Parliament should not be overcharged with multitudes E. 1. did order that none of his Barons and