Selected quad for the lemma: lord_n
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A62387
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The power of the Lords and Commons in Parliament in point of judicature briefly discours'd
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Scobell, Henry, d. 1660.
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1680
(1680)
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Wing S927; ESTC R14515
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4,207
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12
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THE POWER OF THE LORDS AND COMMONS IN PARLIAMENT In point of JUDICATURE briefly discours'd At the Request of a Worthy Member of the House of Commons LONDON Printed in the Year 1680. The Power of the Lords and Commons in Parliament c. SIR TO give you as short an account of your Desires as I can I must crave leave to lay you as a Foundation the Frame or First Model of this State When after the Period of the Saxon Time Harald had advanc'd himself into the Royal Seat the Great men to whom but lately he was no more than Equal either in Fortune or Power disdaining this Act of Arrogancy and Ambition called in William Duke of Normandy the most Active Prince of any in these Western Parts and renowned for the Victories that he had successfully Atchieved against the French King then the most Potent Moâ—arch in Europe This Duke led along with him to this work of Glory many of the Younger Sons of the best Families of Normandy Picardy and Flanders who as Voluntiers accompany'd the undertaking of this Fortunate Man The Vsurper being Slain and the Crown by War gained to secure Certain to his Posterity what he had so Suddenly gotten he shar'd out his Purchase retainining in Each County a Portion to support the Soveraign Dignity which was stiled Demenia Regni now the Ancient Demesnes and assigning to others his Adventurers such Proportions as engaged to himself the Depâ—ndency of their Personal Service such Lands only excepted as in Free Alms were allotted to the Church These were termed Barones Regis or the Kings Immediate Free-holders for the word Baro imported then no more As the King to These so These to their Followers Subdivided part of their Shares into Knights-Fees and their Tenants were called Barones Comitis or the like for we find as in the King 's Writ so in Theirs Baronibus suis al François Anglois to their Barons as well French as English the Royal Gifts for the most part extending to whole Counties or Hundreds an Earl being Lord of the One and a Baron of the Inferiour Donations to Lords of Townships or Mannours And as the Land so was also the Course of Judicature divided even from the Meanest to the Highest Portion each Several had his Court of Law preserving still the Custom of our Ancestors the Saxons who jura per Pagos reddebant distributed Justice throughout each Village And these were termed Court Barons or the Freeholders Court twelve usually in number who with the Thame or Chief Lord were Judges The Hundred-Court was next where the Hundredâ—s or Aldermannus Lord of the Hundred with the chief Lord of each Township within their Limits judged God's People observed This Form in the Publick Centureonis Decam Judicabant Plebem omni tempore Hundreds and Decennaries administring Justice to the People at all times The County-Court or Generale Placitum was the next This was to supply the Defect or remedy the Corruption of the Inferiour For Vhi Curiae Dominorum probantur defecisse pertinet ad Vice-Comitem Provinciarum where the Hundred-Court was found Defective matters were referr'd to the Lord of the County The Judges here were Comites Barones Comitatus qui Liberas in hoc Terras habeant Earls and Barons of the County that were Free-holders in the same The last and Supreme Court and proper to our Question was Generale Placitum apud London the General Council at London Vniversalis Synodus the Vniversal Synod in Charters of the Conquerour Capitalis Curiae the Capital Court by Glanvil Magnum Commune Concilium coram Rege Magnatibus suis the Great and Common Council before the King and his Nobles In the Rolls of Henry the Third It is not Stative but summon'd by Proclamation Edicitur Generale Placitum apud London says the Book of Abingdon whither Duces Principes Satrapae Rectores Causidici ex omni parte confluxerunt ad istam Curiam saith Glanvil the General Assembly was called at London whither Dukes Princes Peers Rectors and Lawyers resorted from all Quarters And Causes were referr'd propter aliquam dubitationem quae emergit in Comitatu cum Comitatus nescit dijudicare upon any Question or Difficulty which the County Court was not able to solve Thus did Ethelweld Bishop of Winchester transfer his Suit against Leostine from the County ad Generale Placitum or the General Assembly In the time of King Etheldred Queen Edgine against Goda from the County appealed to King Etheldred at London Congregatis Principibus Sapientibus Angliae where the Princes and Wise Men of the Land were met together A Suit between the Bishops of Winchester and Durham in the time of S. Edward Coram Episcopis Principibus Regni in praesentia Regis ventilata finita was handled and determined by the Bishops and Princes of the Realm in the presence of the King In the 10th year of the Conquerour Episcopi Comites Barones Regni potestate adversis Provinciis ad Vniversalem Synodum pro causis audiendis tractandis convocati the Bishops Earls and Barons of the Realm c. being assembled at the Universal Council to hear and determine Controversies says the Book of Westminster And This continued all along in the succeeding Kings Reign until toward the end of Henry the Third AS this Great Court or Council consisting of the King and Barons rul'd the important Aflairs of State and controlled all Inferiour Courts so were there certain Officers whose transcendant Power seem'd to be set for the circumscribing the Execution of the Princes Will as the Steward Constable and Marshal fix'd upon Families in Fee for many Ages They as Tribunes of the People or Ephori among the Lacedemonians growing by unmanly Courage terrible to Manarchy fell at the feet and mercy of the King when the daring Earl of Leicester was slain at Evesham This Chance and the dear Experience H. the Third himself had made at the Parliament at Oxford in the fortieth year of his Reign together with the Memory of the many straits his Father was driven unto especially at Rumny-Mead near Stanes brought this King to begin what his Successors fortunately finish'd in lessening the Strength and Power of his Great Lords And this was effected by searching into the Regality they had usurped over their peculiar Soveraigns whereby they were found to be as the Book of St. Albans termeth them quot Domini tot Tyranni how many Lords so many Tyrants and by weakening that Influence and Sway which they carryed in the Parliaments by commanding the Service of many Knights Citizens and Burgesses to the Great Council Now began the frequent sending of Writs to the Commons Their assent not only used in Money Charge and making Laws for before all Ordinances pass'd by the King and Peers but their Consent also in Judgments of all Qualities whether Civil or Criminal In proof whereof I will produce some few succeeding Presidents out of Record When Adamor that
proud Prelate of Winchester Lib. S. Alban fol. 20.7 An. 44. H. 3. the Kings Half Brother had aggrieved the State by his formidable Insolence he was banished by the joynt sentence of the King the Lords and Commons And this appeareth expresly by the Letter sent to Pope Alexander the Fourth who expostulated a Revocation of him from Exile because he was a Church-man and so not Subject to any Censure In This the answe is Si Dominus Rex aut Majores Regni hoc vellent meaning his Revocation Communitas tamen Ipsius Ingressum 〈◊〉 Angliam jam Nullatenus sustineret though the King and Lords should consent to his Revocation yet would the Commons never allow of it The Peers Subscribe this Answer with their Names and Petrus de-Mountford vice Totius Communitatis as Speaker or Proctor of the Commons For by that Stile Sir John Tiptoft Prolocutor affirmeth under his Arms the Deed of Entail of the Crowns by King Hen. the fourth Charta Orig. sub Sigil An. 8. H. 4. in the eighth year of his Reign for all the Commons The Banishment of the two Spencers in the fifteenth of Edw. 2d Prelates Comites Barones les autres Peeres de la Terre Communes de Royaulme the Prelates Earles and Barons and the rest of the Peers of the Realm and Commons of the Land do give Consent and Sentence to the Revocation and Reversement of the Former Sentence the Lords and Commons accord and so it is express'd in the Roll. In the first of Edw. the 3d. when Elizabeth the Widdow of Sir John de Burgo Rot. Parl. 15 Ed. 3. vel 2. complained in Parliament that Hugh Spencer the Younger Robert Boldock and William Cliffe his Instruments had by Duresse forc'd her to make a Writing to the King whereby she was despoiled of all her Inheritance Sentence is given for her in these words Pur ceo que avis est al Evesques Counts Barons autres Grandes a tout Cominalte de la Terre que le dit script est fait contre Ley tout manere de Raison si faist le dit Escript per agard del Parliament dampue alloquens al livre a la dit Elizabeth Forasmuch as it appeareth unto the Bishops Earls and Barons and all the Commonalty of the Land that the said Writing was made against all Law and Reason it is adjudged by Parliament c. In An. 4. Ed. 3. it appeareth by a Letter to the Pope Prela Parliam 1. Ed. 3. Rot. 11. that to the Sentence given against the Earl of Kent the Commons were Parties as well as the Lords and Peers for the King directed their Proceedings in these words Comitibus Magnatibus Baronibus aliis de Communitate dicti Regni ad Parliamentum illud congregatis injunximus ut super his â—â—scernerent judicarent quod Rationi Justitiae conveniret habere prae Oculis solum Deum qui eum concordi unanimi sententia tanquam Reum oriminis laesae Majestatis morti adjudicarent ejus sententia c. We have commanded the Earls Peers Barons and others of the Commonalty of the said Realm assembled in Parliament to determine in this matter according to Reason and Justice having only God before their Eyes and by an unanimous consent they have sentenced him to death as guilty of High-Treason When in the 50th year of Ed. 3. the Lords had pronounc'd the Sentence against Richard Lions otherwise than the Commons agreed Parl. An. 5. Edw. 3. they appealed to the King and had Redress and the Sentence entered to their Desires When in the first Year of Richard the Second Will. Weston and John Jennings were Arraigned in Parliament for surrendring certain Forts of the King 's Parl. An. 1. Rich. 2.11.3.8 3.5 the Commons were Parties to the Sentence against them given as appeareth by a Memorandum annexed to That Record In the first of Hen. the Fourth although the Commons reserre by Protestation the pronouncing of the Sentence of Deposition against King Richard the Second unto the Lords yet are they equally Interressed in it as appeareth by the Record For there are made Proctors or Commissioners for the whole Parliament one Bishop one Abbot one Earl one Baron and two Knights Gray and Erpingham for the Commons And to infer that because the Lords pronounc'd the Sentence thâ— point of Judgment should be only Theirs were as absur'd as to conclude that no Authority was vested in any other Commissioner of Oyer and Terminer than in the Person of that Man only that speaketh the Sentence In the 2d of Hen. 5. The Petition of the Commons importeth no less than a Right they had to Act and Assent to all things in Parliament and so it is answer'd by the King And had not the adjourned-Roll of the Higher-House been left to the sole Entry of the Clerk of the Vpper-House who either out of neglect to observe due Form or on set purpose to obscure the Commons Right and to flatter the Power of those who he immediately served omitted them there would have been frequent Examples of all Times to clear This doubt and to preserve a just Interest to the Common Wealth And how conveniently it suits with Monarchy to maintain This Form lest others of that well-fram'd Body knit under one Head should swell too Great and Monstrous may be seen with half an Eye it being in my Opinion at least equally Liable to suffer a-fresh under an Aristocracy as a Democracy SIR I am Your most humble Servant H. S. FINIS