puts an end to the Sessions so that what ever Bills are ready and pass not the Royal Assent must be again read three times in either House for the more security it is usual to insert a Proviso That the Session is not thereby concluded The Royal Assent is given two ways First Royal Assent by Patent by Commission since the Statute of the 33 H. 8. c. 21. wherein it is expressed That the Kings Royal Assent by his Letters Patents under the Great Seal Signed by his hand and declared and notified in his absence to the Lords Spiritual and Temporal and to the Commons Assembled in the higher House is and ever was of as good strengh and force as if the King had been there personally present and assented openly and publickly to the same The manner of the King 's giving his Publick Assent is in this manner The King cometh in Person in his Parliament-Robes Royal Assent when the King present and sitteth in his State and the Upper House sit in their Robes The Speaker with all the Commons House cometh to the Bar of the Lords House and in Sir Thomas Smith's time Sir Th. Smith's Commonwealth p. 45. Speeches used to be made there the Chancellor for the Lords and the Speaker for the Commons in set Speeches returned the Prince Thanks for that he hath so great Care of the good Government of his People and for calling them together to advise of such things as should be for the Reformation Establishing and Ornament of the Commonweal After which the Chancellor in the Prince's Name giveth Thanks to the Lords and Commons for their Pains and Travel taken which he saith the Prince will remember and recompense when Time and Occasion shall serve and that the Prince is ready to declare his Pleasure concerning their Proceedings whereby the same may have perfect Life and Accomplishment by his Princely Authority I think now mostly Hackwell of Passing of Bills p. 181 182. the Speaker of the House of Commons makes a Speech acquainting the King with the purport of the Bills Then the Clerk of the Crown readeth the Title of the Bills in such Order as they are in Consequence After the Title of every Bill is read singly The Clerk of the Crown pronounceth the Royal Assent or Dissent the Clerk of the Parliament pronounceth the Royal Assent according to certain Instructions given from his Majesty in that behalf If it be a Publick Bill to which the King assenteth the Answer is Le Roy le veult The King willeth If a Private Bill allowed by the King the Answer is Soit fait comme il est desire Let it be done as it is desired And upon a Petitionary Bill the like is used If it be a Publick Bill which the King forbeareth to allow he saith Le Roy se avisera The King will advise To a Subsidy Bill the Clerk pronounceth Le Roy remercie ses loyaux Subjects accepte leur Benevolence aussi le veult The King thanks his Loyal Subjects accepts their Benevolence and also willeth To a general Pardon is pronounced Les Prelates Seigneurs Communs en cest Parlement assembles au nom de touts vous autres Subjects remercient tres humblement vostre Majesty prient Dieu vous donner en sante bone vie longe The Prelates Lords and Commons in this Parliament assembled in the name of all your other Subjects thrice humbly give thanks to your Majesty and pray God to give you in health a good Life and long These P. 46. saith Sir Thomas Smith be taken now as perfect Laws and Ordinances of the Realm of England and none other and as shortly as may be are printed except it be some Private Acts made for the Benefit or Prejudice of some Private Man these be only exemplified under the Seal of the Parliament CHAP. XXIX Of Factious Combinations in Parliaments I Hope in the foregoing Chapters I have so explained the Constitution of Parliaments and the Legislative Power that unbiassed and unprejudiced Persons will no more be misled by the Sophisms and plausible pretences which to aggrandize the Power of the two Houses at first and after of the Commons House only the Penmen of the long Parliament made use of yet because many of late were furbishing the rusty Armour of their Demagogues and trimming their Helmets with fresh Plumes I conceive it necessary to take notice of some of their chiefest Arguments and examine those which had greatest Influence upon the People The great and venerable name of Parliament and its Authority was constantly used as Shield and Buckler to ward off all the Force of the Loyal Assaults and Mr. Prynne writ a large Volume which he stiled The Soveraign Power of Parliaments and when the very Lees and Dregs of the Commons House was put in Ferment that very Kilderkin would admit no lower Stile than the supreme Authority of the Nation to be pearched on its Bunghole Therefore to disabuse the less considerate The various Acceptation of the word Parliament and to detect the Frauds of those which under that great Name applyed whatever they met with in the Laws or History to the House of Commons I think it necessary in the first place to clear the acceptation of the Word Appropriated to the Lords House Sometimes the word Parliament is used for the House of (a) Egerton sect 4. 22 23. Lords only as when upon Writ of Error any Judgment in the King's-Bench is examined in the House of Lords the Judgment is said to be affirmed or reversed by Parliament The Appellation of Parliament is likewise used for the two Houses To both the Houses in regard they are the gross Body whereof the Parliament consists there only wanting the Sovereign Head to compleat it But they are so far from being the High Court of Parliament that they cannot co-unite to be an entire Court either of Sovereign or Ministerial Justice but only in concurring in Votes in their several Houses for preparing of matters in order to an act of all the Body which when they have done their Votes are so far from having any legal Authority in the State as in Law there is no Stile or Form of their joynt Acts further than Bills nor doth the Law so much as take notice of them till they have Royal Assent without which the Votes of the two Houses dye in the Womb like an Embryo So that the proper use of the word Parliament How properly the High Court of Parliament as Authority of Law-making is annexed to the name is only when the King and the two Houses concurr in one Act and in that sence only is the Parliament the Supream Court the highest Judicatory and the most Sovereign Power Not for any Soveraignty in the two Houses and from them transferred to the King by their joining and consenting with him but because every compleat and perfect Act of it is the Act of
all manner of People as well Poor as Rich that for Highness nor for Riches nor for Hatred nor Estate of no manner of person or persons nor for any Deed Gift nor Promise of any person the which is made to him nor by Craft nor by Ingen he shall let the Kings Right nor none other Persons right he shall disturb let or respite contrary to the Laws of the Land nor the Kings Debts he shall put in respite where that they may goodly be levied that the Kings need he shall speed above all others that neither for gift wages nor good deed he shall layne disturb nor let the profit or reasonable advantage of the King in the advantage of any other person or of himself that he shall take of no person for to do wrong or right to delay or to deliver or to delay the People that have to do before him c. where he may know any wrong or prejudice to be done to the King he shall put and do all his power and diligence that to redress and if he may not do it that he tell it to the King or to them of the Council that may make relation to the King if he may not come to him Sir Edward Coke (z) 4. Instit p. 103. 110 111. hath commented on the Mirror to explain all the Power and particular business of the Court and further observeth that the Patent of the King to the Chief Baron the rest of the Barons Atturney General and Sollicitor are not so long as the King pleaseth but quam diu se bene gesserint which is interpreted a place for life and there is good reason being too many changes would give too many an insight into the Kings Revenue There is a Manuscript (a) Codex niger c. 1. Nulli licet statutum Scaccarii infringere vele is quavis temeritate resistere Habet enim hoc commune cum ipsa Dom. Regis Curia in qua ipse in propria persona Jura decernit quod nec Recordationi nec Sententia in eo latae liceat alicui contradicere of Gervasius Tilburiensis writ in the time of Henry the second which gives an account how it came to be called the Exchequer from a checked Covering of the Table at which the Officers of the Court sate and saith That it is lawful for none to infringe the Statutes of the Exchequer or by any rashness to resist them it having that common with the Court of the Lord the King in which he in his proper person gives Judgment that it is not lawful for any to contradict either the Record or Sentence By which it appears that this Court was distinct from the Kings Bench where the King sate in person and that by the Institution of William the Conqueror not only the great Barons of this Realm as well Ecclesiastical as Secular but also the Justice of England as President thereof by his Office were Members of this Court and so continued to do long after as the Judicious (b) Origines Jurisâ—ic fol. 50. Sir William Dugdale hath by Precedent shown Mr. Prynne hath given us two Records out of the Exchequer (c) Commun Term. Mich. 35 H. 3. Rot. 2. 34 H. 3. and Rishanger 40 H. 3. that that King in his proper person sate and gave judgments in the Court of Exchequer and gave not only Rules to be observed about the Revenue Sheriffs and Bailiffs but also concerning punishing Blasphemy defending Pupils Orphans and Widows and how the Magnates deported themselves to their Tenents and if (d) Inquirant qualiter Magnates se gerunt erga homines suoâ— si forte non possunt plenarie corrigere tunc ostendant easdem transgressiones Dom. Regi they found them transgressing that they correct them as they can and if they cannot fully correct them they show the same transgressions to the King He hath also given an account how 54 H. 3. (e) Pat. 54 H. 3. m. 22. dorso Incep 55. Rot. 3. dorso the accounts of the Sheriffs into the Exchequer were to be digested and in Michaelmass-Term the same Year how the Barons of the Exchequer were to administer the new Oath to the Mayor Elect of the City of London likewise in the same (f) Animadv fol. 55 56. Author there is a large refutation of Sir Edward Coke's Opinion that the Statute of Rutland as he calls it was a Statute made by the King Lords and Commons where it is proved against Sir Edward that it was made for the ordering of the Exchequer at Rothelan in Wales by the King and his Council and not at Rutland but I shall not enter into such Particulars There are several other Courts which have peculiar Jurisdictions by the King's Grants and Prescription as the Court of Requests abolished 17 Car. 1. The Court of Chivalry Court of Marshalsea of the Admiralty and that for redress of delays of Justice which Sir Edward Coke and others have treated of at large and fall not so necessarily for me to discourse of So I shall proceed to the Itinerant Justices and of Assizes and Gaol-delivery SECT 7. Of Itinerant Justices and Justices of Assize and Nisi Prius SOme Shadow of this we find in the time of the Conqueror when Geofrey Itinerant Justices Earl of Constance and some other Barones Regis did sit at (g) Regist Ecclesiae Eliensis fol. 24 b. Kenteford to hear and determine the Claim touching the Rights and Liberties of the Church of Ely at that time disputed before them But the settlement of the Constitution of them was not till 22 H. 2. Anno 1176. as Roger Hoveden (h) Annal. pars post p. 148 149 150. hath related when the King held his Great Council at Nottingham communi omnium Consilio divisit Regnum suum in 6 partes per quarum singulas Justiciarios Itinerantes constituit and the Twenty fifth of his Reign at his great Council at Windsor (i) Idem p. 590 591. Et unicuique partium praefecit viros sapientes ad faciendam Justitiam ad audiendum clamorem populi he divided England into four Parts and over every Part he appointed Wisemen to do Justice and hear the Complaints of the People The Form of the special Writ from the King to impower them to act and of the Writ directed to the Sheriffs to summon all such Persons as were concerned in this Service to appear before the Justices may be seen in Sir William Dugdale's Origines Juridiciales fol. 52. a.b. In which latter Writ (k) Cl. 3 H. 3. m. 13. dorso the Persons summoned to appear were Archbishops Bishops Abbats Earls Barons Knights libere tenentes and in every Village four Legales Homines Praepositum de quolibet Burgo 12 Legales Burgenses Sir Ed. Coke (l) 4. Instit p. 184. calls these Justices in Eyre and saith they had Jurisdiction in all Pleas of the Crown and of all Actions real personal and
was so indebted But these factious Contentions did not long while contain themselves within heat of Words and cunning Practice for when the Art of Leading the Multitude into such quarrelsom Business grew to perfection they that found themselves overmatched by their Adversaries at this kind of Weapon began to make opposition first with Clubs and Stones afterward with Swords and finally proceeded from Frays and Murthers in the Streets to Battels in the Fields During the whole time of their Commonwealth there were Heart-burnings betwixt the Plebs or ordinary Rank of People and the Patres Conscripti Patricii or Senatorian Order Those never owning themselves to be the Delegates of the People but an Order of themselves that endeavoured to keep the Government in themselves taking State and Authority upon them using a sort of Arbitrary Government endeavouring to win a great Power over the People decreeing That the Consuls provide that the Commonweal receive no detriment On the other hand the People were restless by Representatives to get a share in the Government and the Senate as stoutly opposed such Encroachments and Innovations these kind of Emulations being the inseparable Diseases of all Commonwealths so that in one of the Mutinies the whole Commonalty forsook the City and (y) Liv. lib. 2. embodied upon Mount Aventine till they were gratified as I have before hinted in the Tribuni Plebis who were chosen by them to look after their Concerns in all Debates and who exercised a very imperious Power sometimes Yet this did not suffice but afterwards they more violently contended to have the Choice of one of the Consuls and the Fury of the People was so great that the Senators durst not come to the House and this Feud was so durable that it caused a five-years Anarchy and at last the Senate was forced to yield to the Peoples Importunities After the death of C. Gracchus and Saturnius a Popular Man who by the Senate was put out of the way it was not long e're Marius a famous Captain of theirs was so condemned who by force of Arms returned to the City and murthered all the principal Senators which giving unto Sylla who prospered therein opportunity to make himself absolute Lord of Rome taught Caesar a Man of higher Spirit to affect and obtain the like Sovereign Power who by the like decree of the Senate was provoked If all that I have hitherto mentioned be not sufficient to put a People out of love with this way of Government they may hug their Chains and Fetters as long as they please for me I know these People magnifie the wise contrivances of the State of Venice Concerning three Modern Common-wealths the United Provinces and Switzerland But they may consider That the first is an Optimacy mixed with a restrained and elective Monarchy and they all are more beholden to the Situation of their Countries and the interest their Neighbours have lest they should fall into the hands of others than for any excellency of their Constitution why they should have any likelyhood of duration The Prince of Orange's Stat-holder-ship being Hereditary in the Family contributes something to the suppressing of any potent Faction yet none knows but in process of time Factions may arise amongst them and then the World will see them molder as other such Commonwealths sometimes as flourishing as they and then they will either be made a prey to their Neighbours or submit to a Monarch of their own However it is experimentally known That in no other State the Subjects pay so much for their protection and that from their first Revolt they have been very few years without being engaged in chargeable Wars CHAP. IX Of Monarchical Government and the Preference of it before other Forms IN the commendation of Monarchy all Authors are so copious that it is more difficult to order and compose with Beauty the Jewels of the Crown than to amass and heap them That it hath been the most Antient and Primitive Government of the World we have the Universal suffrage and Testimony of all the preserved Records of remotest Ages Royal Authority and Kings being coaeval with what ever Monuments we find of the Origin of Nations The Writings of Moses much ancienter than any other Historian The Antiquity of Monarchy illustrated in Adam's Sovereignty and of more Authority evidently prove the Sovereignty of Adam and Noah Whence St. Chrysostom well observes That at the Creation God made one Man not many to intimate to us That he did design Monarchy not Aristocracy or Democracy For it cannot be doubted but that the Posterity of Adam during his life were his Subjects both by the Law of God and Nature The Charter of God Almighty giving to Adam Dominion over all the inferior Creation and to Noah over every living Creature Hence the (a) Ovid. Metam Poet speaking of the Origin of things owns his Dominion over the Creatures Sanctius his Animal mentisque capacius altae Deerat adhuc quod dominari in caetera posset Natus homo est Indeed it were absurd and irrational to believe that God who had made the Lion King of the four footed Beasts the Eagle Sovereign of the feathered Fowl and the Whale over the Fishes should leave the most glorious part of the Creation under the confusion of Anarchy or Parity Therefore (b) Natura commenta est Reges quod ex aliis animantibus Apibus praesertim licet dignoscere Seneca elegantly Monarchical Government most natural and according to his manner rightly observes that Nature it self points out Kings as we may know in several living Creatures especially in Bees and (c) Virgil. Georg. Virgil before him hath given us a curious description of the Obedience Bees pay to their King Praeterea Regem non sic Aegyptus ingens Lydia nec Populi Parthorum aut Medus Hydaspes Observant Rege incolumi mens omnibus una est Amisso rupere fidem Illum admirantur omnes Circumstant fremitu denso stipantque frequentes Et saepe attollunt humeris corpora bello Objectant So there may be observed a Dux ipse Gregis amongst all brute Creatures It is from Paternal Power That many Authors deduce the naturalness of Monarchy which was first exercised in Families Hords and Septs as I have (d) Cap. 2. elsewhere cleared therefore the Philosopher (e) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 6. c. 12. sets it down as a Fundamental Truth That that which begets commands by reason of his tender Love and older Age which is a kind of Kingly Government The sence of which is That the Paternal Government hath a resemblance to Monarchical Rule and that it was according to the order of Nature that the Elder should Rule as he confirms by the Oracle and Authority of (f) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Homer who making Jupiter Sovereign calls him Father of Men and Gods and the great Badge of Sovereignty to have Power of Life
time THE Preface to the Statutes at (a) Pulton An. 1327. fol. 93. Westminster 1 Ed. 3. is thus To the Honour of God c. King Ed. 3 at his Parliament held at Westminster c. Petition made by the Commonalty to the King and his Council at the request of the Commonalty of his Realm by the Petition made before him and his Council in the Parliament by assent of the Prelates Earls Barons and other great Men assembled at the said Parliament hath granted for him and his Heirs for ever these Articles The title of the Statute made at (b) Idem Anno 1329. fol. 97. Westminster 27 Nov. 4 Ed. 3. is thus At the request of the Commons these things be Established and Enacted by our Lord the King his Prelates Established and enacted by the King Prelates c. Earls and Barons and other of the same Parliament So that at Westminster (c) Idem Anno 1331. fol. 100. 5 Ed. 3. Our Lord the King by the Assent of the Prelates c. and other Great Men and at the request of his People hath granted and established The Preamble to the Statutes at York (d) Idem Anno 1335. fol. 103. Shewed by the Knightsâ— c. for the Commons assented to by the Lords with the Advice of the King's Council 9 E. 3. runs thus It was shewed to our Lord the King by the Knights of the Shires Citizens of the Cities and Burgesses of Burroughs which come for the Commons of the said Shires Cities and Burroughs Our Lord the King c. by the Assent of his Prelates c. and other Nobles of this Realm summoned at this Parliament and by the Advice of his Council being there Upon the said things disclosed to him Ordains c. So the Statute at (e) Idem Anno 1336. p. 105. Westminster 10 E. 3. is Our Lord the King by the Assent of the Prelates c. and at the Request of the Knights of Shires and his Commons by their Petition hath Ordained Established c. The Preamble to the Statute for the Clergy 16 Apr. 14 E. 3. runs thus At the Petition of John Archbishop of Canterbury and other Prelates upon deliberation had with the Peers of our Realm and other of our Council and of the Realm summoned to our said Parliament Thus far we find the King Establishing and Ordaining upon the Petition of the Commons as also of the Prelates with the Assent of the Prelates and Nobility and his Council Before I proceed to those Statutes which mention the assent or advice of the whole Parliament I think fit to insert at large the Repeal of an imperfect Statute made 15 E. 3. There having been (f) Idem Anno 1541. 15 E. 3. fol. 115. a Statute made That Ministers of the Church should not answer before the Kings Justices for things done touching the Jurisdiction of the Church For what reasons and in what manner this was repealed Repeal of Law unduely prâ—cured will best appear by the Kings Precept to the Sheriff of Lincoln which runs thus Whereas at our Parliament summoned at Westminster in the Quindene of Easter last past certain Articles expresly contrary to the Laws and Customs of our Realm of England and to our Prerogatives and Rights Royal were pretended to be granted by us in the manner of a Statute And considering how by the Bond of our Oath we be tied to the observance and defence of such Laws Customs Rights and Prerogatives and providently willing to revoke such things to their own State which be so improvidently done Upon Conference and Treatise thereupon with the Earls Barons and other Wise Men of our said Realm and because we never consented to the making of the said Statute but as it then behoved us we dissimuled in the Premisses by Protestations of Revocation of the said Statute if indeed it should proceed to eschew the danger which by denying the same we feared to come for as much as the said Parliament otherwise had been without dispatching any thing in discord dissolved and so our earnest business had likely been ruinated which God prohibit and the said pretended Statute we promised then to have sealed It seemed to the said Earls Barons and other Wise Men that sithence the Statute did not of our Free Will proceed the same be void and ought not to have the name or strength of a Statute and therefore by their counsel and assent we have decreed the said Statute to be void and the same as much as it proceeded of Dread we have agreed to be adnulled Nevertheless that the Articles contained in the said pretended Statute which by other of our Statutes or of our Progenitors Kings of England have been approved shall according to the form of the said Statute in every point as convenient is be observed and the same we do only for the Conservation and Redintegration of the Rights of our Crown as we be bound and not that we should in any wise grieve or oppress our Subjects whom we desire to rule in lenity and gentleness So the King commands all these things to be openly Proclaimed 1 Oct. 15. Regni From this Statute we may 1st Observations upon iâ—â—â— observe That without the Kings free and express consent there can be no Law pass'd 2ly The Bishops are not mentioned in this it being contrary to some Liberties Churchmen claimed by the Canons 3ly The Kings assent was not compleat but only a temporary one like a Salvo Jure lest his earnest business for which he called them should miscarry for want of a seeming compliance therefore he is said to promise the Sealing of it which was in that Age the Characteristick of Confirmation but never did it but rather made some kind of Protestation in the presence of some that what he did was unwillingly 4ly That seeing it did not proceed of his Free Will therefore by the advice and consent of the Earls Barons and other Wise Men it is declared void Lastly The principal reason why he gave not his free consent to it was because it was against his Coronation Oath whereby he was tied to the observance and defence of the Laws Customs Kings not bound to consent to what Bills the Houses propose Rights and Prerogatives So that upon the whole they that would advise their Princes to consent to whatever Bills the Houses should tender as in the Chapter of Factious Members of Parliament I shall have occasion to discourse may learn from hence That the King found himself obliged to consent to no Bills contrary to the Law Customs Rights and Prerogatives such were those the unhappy Parliament of 41 in the point of the Militia and their other dethroning Bills and of late another Parliament in the Bill of Seclusion endeavoured to impose upon their Soveraigns contrary to the fundamental Laws and Prerogatives of the Crown To proceed The Preface of the Statute at (g) Id. 1346. fol. 118. Westminster
together with Judges and King's Council Citizens Burgesses of Parliament and Barons of the Cinque-Ports being usually summoned to the one but to the other some few Spiritual and Temporal Lords only without (x) Brief Register part 1. pag. 187. to 192. any Judges Assistants Knights Citizens Burgesses or Barons of the Cinque-Ports or some few of them only and divers who were no usual Lords or Barons of Parliament as Mr. Prynn hath made evident and the Rolls themselves in the Margin notes them by de Concilio summonito or deveniendo ad Concilium which some Antiquaries having not noted have confounded them SECT 4. Of the Judicature of the House of Lords IT is evident that the Lords in Parliament have ever been the usual Judges not only in all criminal and civil causes 6. The Lords Judicature proper for Parliaments to judg or punish and Writs of Errors but likewise in all cases of Precedencies and Controversies concerning Peers and Peerage which Power was in them as the King 's Supreme Court before there were any Knights Citizens or Burgesses summoned to our Parliaments So Hoveden (y) Annal. pars poster p. 561. ad 566. is express in the case of Sanctius King of Navar and Alphonsus King of Castile Comites Barones Regalis Curiae Angliae adjudicaverunt Anno 1177. 23 H. 2. So Fleta in Ed. the First 's time writes (z) Habet enim Rex Curiam suam in Concilio suo in Parliamentis suis praesentibus Pralatis Comitibus Baronibus Proceribus aliis viris peritis ubi terminatae sunt dubitationes judiciorum Lib. 2. c. 2. p. 66. thus The King hath his Court in his Council in his Parliaments there being present the Prelates Earls Barons Nobles and other skillful Men viz. the Judges Assistants where are ended the doubts of Judgments This Particular of the Jurisdiction of the House of Lords is so fully in every Branch of it proved by Mr. Prynn in his Plea for the Lords House that it were an Injury to the inquisitive Reader not to referr him to that Treatise for full Satisfaction therefore I shall only pick out a very few out of a Manuscript I have of the Priviledges belonging to the Baronage of England and Mr. Prynn In the fourth of King (a) Roâ— Parl. 4 E. 3. m. 7. num 3. Judgment of Lords on John Mautravers Edward the Third the Peers Earls and Barons assembled at Westminster saith the Record have strictly examined and thereupon assented and agreed that John Mautravers is guilty of the death of Esmon Earl of Kent Uncle of our Lord the King that now is wherefore the said Peers of the Land and Judges of Parliament judged and awarded that he the said John should be drawn hanged and beheaded In the first of R. 2. John Lord of (b) Rot. Par. 1 R. 2. m. 6. num 38 39. Gomenys and William de Weston were brought before the Lords sitting in the white Chamber On John Lord of Gâ—menys and William Weston for delivering up Forts to the Enemy and were severally charged at the Commandment of the Lords by Sir Richard Scroop Knight Steward of the Kings House William Weston being accused for rendring the Castle of Outhrewike and John Lord of Gomenys for rendring the Castle of Ards. They both made plausible defences and Sir Rich. Scroop Steward tells William that the Lords sitting in full Parliament do adjudge him to death But because our Lord the King is not yet informed of the manner of this Judgment the execution thereof shall be respited till the King be informed thereof and the like Sentence he passed upon John Lord of Gomenies only adding that he being a Gentleman and Banneret should be beheaded There are many more Examples of Judgments given in Capital matters upon Bergo de Bayons 4 E. 3. m. 7. num 4. Thomas de Gurny eadem membrana num 5. and others and for Offences not Capital of Richard Lions 59 E. 3. m. 7. William le Latymer 42 E. 3. m. 2. William Ellis ibid num 31 John Chichester and Botesha 1 R. 2. num 32. Alice Piers Ibid. num 41. Mr. Antiquity of Judgment by Peeâ—s Prynn (c) Plea for Lords p. 203. Hist lib. 4. shews this Jurisdiction out of Historians even from Cassibellan out of Geoffrey of Monmouth Also Anno 924. of Elfred a Nobleman who opposed King Aethelstan's Title and had his Lands adjudged by the Peers forfeit to him the Words of the King are Et eas accepi (d) Malmsb. de Gest is Reg. lib. 2. c. 6. p. 62. Spelman Conc. Tom. 1. p. 407 408. Anno 1043. quemadmodum judicaverunt omnes â—ptimates Regni Anglorum So Earl Godwin having murdred Prince Alfred Brother to King Edward the Confessor being fled into Denmark and hearing of King Edward's Piety and Mercy returned and came to London to the King who then held a Great Council and denied the Fact and put himself upon the (e) vnde super hoc pono me in consideratione Curiae vestrae Chron. Brompton col 937 938. consideration of the Kings Court and the King speaks to the Earls and Barons thus Volo quod inter nos in illa appellatione rectum judicium decernatis debitam justiciam faciatis and after it is said Quicquid judicaverint per omnia ratificavit So in the Constitutions of (f) An. 1164. M. Paris 94. Sicut Barones caeteri debent interesse judiciis Curiae Regis cum Baronibus quousque perveniatur in judicio ad diminutionem membrorum vel ad mortem The House of Lords the King's Court of Barons Clarendon it is appointed That the Archbishop Bishops and those Clergy that held in Capite as by Barony should be Parties in the Judgments of the Kings Court as other Barons ought with the other Barons till it come in Judgment to the loss of Member or to Death So in the Case of Tho. Becket Archbishop of Canterbury Anno 1165. 11 H. 2. we find in Hoveden parte post p. 494 495. that Barones Curiae Regis judicaverunt eum esse in misericordia Regis and afterwards when he would not yield to the Kings Will he (g) Dixit Baronibus suâ—s Cito facite mihi judicium de illo qui homo meus Ligeus est stare Juri in Curia mea recusat saith to his Barons Quickly make to me Judgment of him who is my Liege Man and refuseth to stand to the Law in my Court The Barons going out judg'd him fit to be seiz'd on and sent to Prison and the Historian saith tunc misit Rex Reginaldum Comitem Cornubiae Robertum Comitem Leicestriae ad indicandum ei judicium de illo factum Anno 1208. King (h) Anno 10 Johan Mat. Paris p. 218. John exacted Pledges of his Subjects and amongst others of William de Breause who said If he had offended the King he would be ready to answer his Lord and that without Hostages secundum judicium
Curiae suae Baronum Parium suorum So Anno 1240. 24 H. 3. (i) Graviter accusatus coram Rege Curia tota Lond. Mat. Westm 153. Matthew Paris saith That Hubert de Burgo Earl of Kent was grievously accused before the King and his whole Court and it was adjudged he should resign to the King four of his Castles I cannot omit one memorable passage that (k) Mat. Westm Anno 1260. p. 295 296. Anno 1260. 44 H. 3. there falling out a difference betwixt King Hen. 3. Prince Edward his Son Simon Montfort and other Nobles the King called his Baronage to St. Pauls and there it being urged that Prince Edward had done some injuries to the King he offered to prove himself innocent before the King and his Uncle who was King of the Romans saying Who are Peers of Prince Edward That none of (l) Omnes alios Barones Comites sibi de â—ure non esse Pares nec sâ—â—s in eum excercerâ— disâ—ussiones the rest of the Barons and Earls were by right his Peers nor ought to exercise upon him their Discussions of the matter By which it appears that he judged himself to be something more than a Peer of the Realm being the Heir apparent of the Crown I might fill a large Volum with the Histories and Records to prove this but since Levellers and the House of Commons that voted the House of Lords dangerous and useless have received such deadly wounds by Mr. Prynne in his Plea for the Lords who was once one of their own Champions I think it needless to whet those Weapons again since they always will be in readiness for any one to make use of if need require and shall only obviate one objection that may be urged That whatever the usage was before the Representatives of the Commons An Objection That after the House of Commons were admitted the Jurisdiction of the Lords House was lessened Answered yet the Commons after were often admitted to a share of Judicature in some cases But I shall give a few Instances how after this change of the Constitution of Parliament still this power of Judicature remained in the King and House of Lords Roger de (m) 4 E. 3. num 11.28 E. 3. num 9 10. Mortimer being accused of High Treason 4 E. 3. for the Murther of King Edward 2. after his resignation and unlawful deposition Knighton (n) De Event Angliae lib. 3. c. 16. col 1556 1557. giving an account of the proceedings agreeable to the Parliament Roll saith Rex praecepit Comitibus Baronibus caeteris Magnatibus Regni justum judicium ferre super praedicto Rogero de Mortimer So at the Parliament held at Salisbury 7 R. 2. W. de Zouch is said to be called to the Parliament to stand to the Judgment (o) Ad standum judicio Regis Domincrum Walâ—ingham p. 334. Hist Ang. Hypodig Neust p. 141. of the King and the Lords So Michael de la Pole Earl of Suffolk and Chancellor of England 10 R. 2. (p) Rot. Parl. 10 R. 2. num 6. ad 18. was accused by the Commons in full Parliament before the King Bishops and Lords and at last it is said The Lords in full Parliament gave judgment against him In the Parliament 11 R. 2. Thomas Duke of Gloucester offered to put himself upon his Tryal as the Lords of the Parliament would award c. After which the Lords as well Spiritual as Temporal claimed their Liberties and Franchises namely That all weighty matters in the same Parliament which should be after moved touching the Peers of the Land should be judged and determined by them by the course of Parliament and not by the Civil Law nor yet by the Common Law of the Land used in other Courts of the Realm Yet this seems a very high Demand for they have not Juris dandi but dati Jurisdictionem as they are a Court of Ministerial Jurisdiction being the Court of the King's Barons in Parliament And though when upon Writ of Error (q) Egerton sect 4.22 23. any Judgment in the King's Bench is examined in the House of Lords and there affirmed or reversed the Judgment is said to be affirmed or reversed in Parliament yet we cannot conclude they have the Power of the High Court of Parliament that their Decrees if against the Law should be as binding as Acts of Parliament How the Lords judge ministerially And though the same House in the same Session may not have Power to review again their own Judgment nor to restore again any Judgment they have reversed because they judge ministerially and not sovereignly and so bind their own Hands as well as their Inferiors whereas an Absolute Supreme Court is never at the last Period of Jurisdiction yet we see Attainders in one Parliament reversed in another and so may their Judgments be But this obiter I shall but add one proof more being full and express to the purpose to prove the House of Lords sole Jurisdiction with the King who must always be understood to give Judgment by them The Record is 1 H. 4. (r) Rot. Par. 1 H. 4. num 79. Exact Abridgment p. 392. where it is said That 3 Nov. the Commons in this Parliament shewed to the King Come les joggements du Parlement apperteignent soulement au Roy Seignieurs nient aus Communes c. That the Judgments of Parliament appertained only to the King and to the Lords and not unto the Commons Thereupon they prayed the King out of his special Grace to shew unto them the said Judgments and the cause of them that so no Record might be made in Parliament against the said Commons which are or shall be parties to any Judgment given or hereafter to be given in Parliament without their Privity Whereunto the Archbishop of Canterbury gave them this Answer by the Kings Commandment That the Commons themselves are Petitioners and Demanders and that the King (s) Et que le Roy les Seigniours de tout temps ont eues averont de droit les Juggement in Parliament en manere come mesmes les Communes soâ—t monstres and Lords from all times have had and shall have of right the Judgments in Parliaments in manner as the Commons have shewed How far the King and House of Lords have been Judges of the Priviledges of the House of Commons I shall declare in that part of this Chapter wherein I treat of that House SECT 5. Of the Assistants to the House of Lords HAving thus far treated of the Constituent Parts of the House of Lords I come now to the Assistants to this most Honourable House which were mostly the (t) Prynne's Brief Register part 1. sect 3. p. 240. The Judges and other Assistants of the House of Lords King 's Great Officers as well Clergy-men as Secular Persons who were no Lords or Barons of the Realm as namely his Treasurer
till the 11 Rich. 2. was used and from the 12th to the last of Rich. 2. the words alterius conditionis are omitted and so in Ed. Fourth's time but the Clause that the Sheriff be not chosen is retained To these we may add That Bannerets were not to be chosen Members of the House of Commons (o) Cl. 7 R. 2. m. 32. dorso No Banneret to be chosen 7 R. 2. in the case of Thomas Camoys thus Nos advertentes quod hujusmodi Banneretti ante haec tempora Milites Comitatuum ratione alicujus Parliamenti eligi minime consueverunt ipsum de Officio Militis ad dictum Parliamentum pro Communitate Com. praedicti venturi exonerari volumus and so commands the Sheriff to chuse another In the 11 R. 2. we find a (p) Cl. 11 R. 2. m. 24. dorso new qualification in the Writ That the Knights c. should be Gladio cinctos idoneos discretos in Debatis modernis magis indifferentes A new Clause recalled but the King being informed that this new Clause indifferent in the modern Debates which only was to the Knights not to the Citizens or Burgesses was contrary to the forms of Elections anciently used and against the Liberty of the Commons he superseded and revoked that Clause by another Writ In the 5 H. 4. an unusual new (q) Cl. 5 H. 4. par 2. m. 4. dorso No Lawyers to be chosen Clause was added to the prohibition of Sheriffs Nolumus c. nec Apprenticius aâ—t aliquis alius homo ad Legem aliqualiter sit electus Concerning this and that in the 46 Ed. 3. the curious Reader may peruse Sir Ed. (r) 4 Instit. p. 10. Coke whose opinion Mr. Prynne (s) Second Part of Brief Register 124. Hist Ang. p. 414. from the Roll and from Walsingham clearly confutes however that Parliament is since called indoctum After this upon making the Statutes 7 H. 4. c. 15.11 H. 4. c. 1. upon the Commons Petition the ancient form for the Writs was somewhat altered and enlarged though little as to the qualifications but as to the manner of Elections c. of which I shall discourse by it self 23 H. 6. c. 15. (t) Cl. 25 H. 6. m. 24. dorso Only Knights Esquires or Gentlemen to be Knights of Shires a Statute was made concerning Elections of Knights therefore in the Writs of Summons 25 H. 6. it runs thus Milites notabiles seu saltem notabiles Armigeri hominesve generosi de natu eorundem Com. qui habiles sunt Milites fieri nullus homo de gradu valettae gradu inseriori de essendo Milites hujusmodi existant Having thus treated of the Ancient Qualifications The Modern Qualifications I shall subjoin the modern which are comprised in short To cause (u) Duâ—s militâ—s gladiis cinctos mâ—gis idoneos discretos Cives Burgenâ—esâ—de discretiorthus magis sufficientibus The Electors two Knights girt with Swords the most fit and discreet of the County aforesaid and of every City of that Country two Citizens of every Burrough two Burgesses of the discreeter and most sufficient to be freely and indifferently chosen c. Having thus discoursed of the Qualifications of the Persons elected before I make any remarks upon the whole it is fit to note the Electors and manner of Election Some are of opinion that as the greater and lesser Tenents in Capite after King John's Charter were the only Lay constituent Members of Parliament so the still smaller Tenents to those that held in Capite and the smaller Tenents in Capite if not they only did elect the Knights of Shires But I shall as fair as Records will give me light by particulars clear this and the power that was given them by the Community of the County to the Knights The first (w) Cl. 22 E. 1. m. 6. dorso Writ hitherto found is only That the Sheriff shall cause to be chosen two Knights and that they have power c. as I have before related in the Writ to the Sheriff of Northumberland See below the Choice in Yorkshire it is to cause two Knights to come chosen by the consent of the County and to have full power for themselves singly and the Community of the County and so likewise two Citizens and two Burgesses with the Assent of the Community of the City or Burrough The Knights were elected by the Community of the County that is as Dr. Brady makes it clear in his (x) P. 33â—34 Glossary the greater and less Tenents in Capite and as for Cities and Burroughs such were the chusers as held Lands in Free Burgage of the King or some great Lords who held in Capite Ann. 26 E. 1. (y) Bundel num 1. expresseth no more but the Election in general and the power to be given the Elected Ita quod dicti Milites plenam sufficientem potestatem pro se Communitate Com. praedict dicti Cives Burgenses pro se Comunitate Civitatum Burgorum praedictorum divisim ab ipsis tunc ibidem habeant c. Before I proceed any further Manucaptors or Pledges that Knights elected should meet in Parliament we must note that in the Returns made by the Sheriffs to these Writs there are found 26 E. 1. four Manucaptors for every person elected and in others two these did engage themselves that the Knights Citizens or Burgesses so elected should appear at the Parliament according to the time appointed In the County of Bedford I find Rich. de Rous Knight elected and no Manucaptors returned but that the Sheriff distrained eight Oxen and four Horses of him that he should come at the Day c. This was done by vertue of that Clause in the Writ eos ad nos ad praedictos diem locum venire facias and this way of having Manucaptors continued till the 12 E. 4. (z) Brief Register part 2. p. 50. though many had none in latter times Mr. Prynne observes That the Knights in every Shire were elected in the full County by and for the whole County and that the Citizens and Burgesses were then also elected per totam Communitatem In all the Writs of Richard the Second there is this Clause more fully inserted than in any before That the Election be in pleno Comitatu tuo de communi assensu ejusdem Comitatus Upon the making the Statutes 7 H. 4. c. 15. and 11 H. 4. c. 1. The Statutes for ordering Elections for regulating abuses in Elections the Writs of Summons 8 H. 4. and all his time and so (a) Cl. 1 H. 5. m. 9. 37. 1 H. 5. were accordingly altered that Proclamation should be made by the Sheriff in the next County day after the receipt of the Writ and the Knights to be chosen libere indifferenter Free Choice free and indifferently by those that were present at the
ordained in the Premisses by the Common Council and so the Returns are ad faciendum quod tunc ibidem ordinabitur In 17 E. 2. (h) Cl. 17 E. 2. m. 27. dorso it is enjoyned that the Knights c. be there ad faciendum consentiendum hiis quae in dicto Parliamento ordinari contigerit super negotiis antedictis Anno 21 E. 3. (i) Cl. 21 E. 3. m. 12. dorso there is some more Power granted to the Knights c. ad tractandum consulendum consentiendum hiis quae tunc favente divina Clementia contigerit ordinari Whereas before it was only to hear and do what was ordained by the King the Prince or the great Council here it is to treat consult and consent to what then should be ordained But the Writ Anno 36. (k) Cl. 36 E. 3. m. 16. dorso explains who had the ordaining Power for it runs ad consentiendum hiis quae per nos ac dictos Praelatos Magnates Proceres ordinari contigerit So here the King the Bishops and the Nobles ordain and the House of Commons are to assent Anno 47 E. 3. (l) Cl. 47 E. 3. m. 13. dorso the words are ad faciendum consentiendum eis quae tunc de Communi Concilio Regni nostri favente Domino contingant ordinari which Form is continued to this day so that according to the import of the Writ the Commons are to do and assent to what shall be ordained in Parliament by which two words I suppose they have the full Power to frame Bills and to assent which also implies a Power of Dissent to the Bills sent to them by the House of Lords Having thus drawn into one Scheme the most material Alterations and variety of Expressions from all the Writs of Summons of Mr. Prynne and others that fill so great Volumes and truly as I hope quoted all the Records which illustrate these Particulars and in a very clear Landscape represented the most material Parts of the two so noble and wisely constituted Houses from whose great Wisdom with the Sovereigns Authority and Fiat all those wholesome and necessary Laws are derived that establish this great Monarchy I shall now pass to some general Remarques and from thence to the ancient and modern Priviledges of the House of Commons First it is very obvious Kings not confined to two Knights c. that the Kings of England formerly were not confined to summon only two Knights Citizens and Burgesses as now for Anno 22 (m) Cl. 22 E. 1. m. 6. dorso E. 1. the King issued out his Writs of Summons for two Knights of every County after which follows a second Writ entred immediately after in the same Dorse for other two Knights in these words Praeter illos duos Milites eligi facias alios duos Milites legales c. So 28 E. 1. three Knights or other three de probioribus legalioribus discretioribus Liberis Hominibus c. eligi These probi legales homines were such as held in Capite So in the (n) Cl. 26 E. 3. m 14. dorso Vâ— hâ—mines ab ista occupaâ—â—one autumpâ—alibus quo minus possumus retrahamus 26 of E. 3. the King considering that it was Harvest time that he might not withdraw Men from that Employment unum tantum Militem de quolibet Comitatu ad dictum Concilium mittendum habere volumus ista vice So (o) Cl. 45 E. 3. m. 21. dorso Ordinavimus ut laboribus parâ—atur expensis 45 E. 3. the King in his Writ saith That he might spare the Labours and Expences he will have treaty with some only of the Magnates by which the Knights of Shires here are to be understood Citizens and Burgesses One Citizen and one Burgess therefore appoints one Knight for the County of Kent one Citizen for Canterbury and one for Rochester whom he names if they be alive otherwise the Companion of him that was before In 18 E. 3. the Writs issued only for two (p) Brevia Parl. rediviva p. 144. ad 147. Knights in every County and no Writ for Electing Citizens or Burgesses and 26 E. 3. the Writs are for one Knight in every County and no Citizens or Burgesses yet in (q) These things are now reduced to a certainty by the Statutes 5 R. 2. c. 4. and others Prynne's Brief Regisâ— par 2 p. 32. this the King issued out particular Writs to Mayors and Bailiffs oâ— Cities and Burroughs to elect and return one Citizen for every City and one Burgess for every Burrough Secondly That the Kings of England had a Power to supersede particular Persons being chosen to resummon those that returned without leave or appoint others in their places and omit sending Writs to some Cities and Burroughs that had formerly sent and to create new Burroughs So the Lord Camoys (r) See Brief Regist p. 118. ad 123. as I have instanced before being elected by the King 's first Writ the King by new Writ declared it null and ordered to proceed to a new Election and the King appears in that Age to be the sole Judge of void and double Elections So in the (s) Cl. 28 E. 1. m. 7. dorso 28 Ed. 1. Phillip de Geyton being chosen one of the Knights for the County of Northampton and could not attend the King orders another to be chosen So 5 (t) Cl. 5 E. 2. m. 26. dorso E. 2. because the Knights Citizens and Burgesses of Yorkshire went away for certain causes not there expressed it is probable without the Kings Leave therefore he sends his Precept to the Sheriff to cause them to return vel alios ad hoc idoneos loco eorum si ad hoc vacare non possint But this more especially is to be taken notice of when I come to discouse of Priviledges of Parliament As to the last particular of the King 's appointing new Burroughs The King makes new Burroughs impowering them by special Charters to send Citizens and Burgesses to all Parliaments to be afterwards held by the King his Heirs and Successors Judge (u) Reports p. 14 15. Hobarts hath cleared it and (w) Brief Register par 2. p. 170. Mr. Prynne hath reduce them all into Chronological Tables and he makes it a certain Note that where the Sheriff makes his Return nulli sunt Cives nec Burgenses in Com. praedict or non est alia Civitas vel Burgus or non sunt alii Burgi we may certainly conclude that every City or Burrough omitted then out of those ancient Returns and since returned for Cities or Burroughs were made Cities and Burroughs since that time as the curious may see at large in his (x) P. 223. ad 297. Brevia Parliamenta Rediviva But on the other side Old Burroughs discontinued for what reason we find many Burroughs who elected Burgesses in 26 E. 1. as particularly Pontefract and
de Sabaudia J. Filius Galfridi Jacobus de Audel Petrus de Monteforti vice totius Communitatis praesentibus Literis sigilla nostra apposuimus in Testimonium praedictorum So that it is plain it was not Peter de Montefort that signed vice Communitatis but they all did it and he was a great Baron himself the Head of whose Barony was Beldesent Castle in Warwickshire I think it not amiss here to offer my Opinion concerning this Question and the great Controversie betwixt Dr. Concerning the Commons first summoning to Parliament Brady and Mr. Petyt and those that are so earnest to find the Commons summoned to Parliament before the 49 H. 3. before King John granted his Charter wherein he grants that he will cause to be summoned the Archbishops Bishops Abbats Earls and greater Barons of his Kingdom singly by his Letters and besides (i) Et Praeterea faciemus submoneri in generali per Viâ—ecomites Ballivos nostros omnes alios qui in Capite tenent de nobis Matt. Paris fol. 216. Edit ult num 20. will cause to be summoned in general by his Sheriffs The Tenents in Capite in stead of the Representative Commons as now and Bayliffs all others which hold of him in Capite at a certain day there is no doubt but the Tenents in Capite such of them at least as were eminent for Parts or as the King pleased were summoned to the great Councils and it being in that Charter said that the cause of the Meeting should be expressed in the Summons and that Forty days warning should be given and in the same Charter that the City of London should have all its ancient Liberties and free Customs and that all other Cities Burghs and Villa's which was of the same import as a Free Burrough as we find in Pontefract which is always stiled Villa Some summoned from Cities and Burroughs before King John's time but not as our Citizens and Burgesses now by Representation and the Inhabitants Burgenses who held a certain Land called Burgage Land and the Barons of the Cinque Ports and all the Ports should have all their Liberties and their Free Customs ad habendum commune concilium Regni de Auxiliis c. that is as I suppose to have some of their Members at the great Councils where Aids were to be granted to the King other ways than in three cases before excepted that is to redeem the Kings body to make his Eldest Son a Knight and to marry once his Eldest Daughter excepting which three Particulars reserved before in his Charter he had granted that no Scutage nor Aid should be laid on his Kingdom unless by the Common Council of his Kingdom From whence I think may be inferred that such Cities Burroughs and Villa's which held in Capite or the Lord that was principal owner of them by his Praepositus Ballivus or some that held immediately under him and so some for the Dominicae Civitates Burgi Regis might be summoned with the lesser Barons or the other Tenents inc Capite But this doth not prove them to come by way of Representatives nor that they had any more Power than the Knights Citizens and Burgesses had in after-times which as I have made it apparent by the several expressions in the Summons was only to hear and assent to what the King and Magnates ordained Since there are now extant no Summons in King John's time or before the 49 H. 3. except some few that are about the Tenents in Capite aiding the King in his Wars the subsequent Practices are the best Expounders of ancient Usages Upon the whole I do judge that before King John's Charter there were many of the Tenents in Capite summoned to the great Councils but so as the King had his liberty to summon whom he pleased and that some from Cities Burghs Villa's and other Ports did come to the great Council but still at the Kings pleasure and that in King John's time the body of the Kingdom siding with the Lords that so often rebelled against him the Lords thinking to make their Party stronger got the Clause for other Tenents in Capite to be summoned by general Summons After King John's Charter the Tenents in Capite so numerous as might be reputed an House of Commons Now whatever number were convened before King John's Charter this general Summons must greatly encrease the House of Commons as I may call it and there needs no such strife about the want of Freemen in these Councils for after this Charter all who were properly Freemen were capable the other were generally Tenents to them and Homagers which was a Tenure that though it might free their Persons yet their Lands were obnoxious to forfeiture upon every breach of Homage and their Lords had the power of taxing them so that in some sense they were their Tenents Representatives and as long as they were Freeholders themselves and were a more numerous body if they all appeared as for any thing I see they might do if not hindred by Impotence Nonage or the Kings service they far exceeded the number of Representatives in the Reigns of King H. 3. E. 1. and E. 2. So that it amounts to the same thing as to the general Freedom of the Nation when all these were Members of the Great Councils Who properly Freeholders in Kâ— John's time whether the common Freeholder were represented or not as now which Dr. Brady hath so nervously confuted every where in his Introduction that they were not that I think the Freedom Mr. Petyt Mr. Pen and others make so great a coyl about no ways impaired by Dr. Brady who like a judicious Person would have us use propriety of Speech and rather be thankful for the Freedom we now enjoy and our Ancestors have from time to time obtained by the grant of Kings than to make such Claims to native Freedoms and Liberties as Mr. Pen would have it that our Ancestors contended for as if their Ancestors had enjoyed them before we had any Kings and stipulated with their Kings for them before they admitted them to Soveraignty which no considering person that will impartially read ancient History either of our Country or others can find any certain footsteps of To return now to the business which the foregoing observation gives some light to I conceive as the Thegns the Kings Prepositi and Reeves As the Thegns in the Saxon-times so the Praepositi Reeves c. of Burroughs after by reason of their Imployments about the Kings Demesn Lands governing of Burroughs Stewards of Hundreds Wapentakes and men employed in other civil Affairs of the Kingdom did meet in the Saxon Councils so from Cities and Burroughs where great Lords had Fees as most if not all of them may be easily proved to have been held immediately of the King or of some of the very great Barons there might come before King John's time some Members to the great
Thomas Moile their Speaker before Sir Thomas Audley Lord Chancellor and all the Lords and Judges there assembled judging the contempt to be very great referred the punishment thereof to the Order of the Commons House The Lord Chancellor offered to grant them a Writ to the Sheriffs of London to require delivery which the House refused being clear in opinion that all Commandments and other Acts proceeding from the nether House were to be done and executed by their Serjeant without Writ only by shew of his Mace which was his Warrant The House applying it self to the Lords who were saith Mr. Prynne (i) Brief Register part 4. p. 860. the ancient proper Judges of the Violations and Violators of the Commons Privileges was the right Parliamentary way for their Members Release and if they had applied themselves to them at first they had prevented all Affronts to (k) Id. p. 862 863. themselves and Officers and met with no opposition And Mr. Prynne humbly apprehends that this Precedent will not warrant an absolute Jurisdiction in the House of Commons without any antecedent Complaint or (l) See Freeholders Grand Inquest from p. 50. to 64. Petition to the King or Lords in Parliament to punish any breach of their Members Privileges not first complained of to Application to be made to the King and Lords for punishment of Violators of this Privilege and adjudged by the King or Lords to be an actual breach or referred to themselves by the Lords or King to punish or without their subsequent Ratification or that it will justifie the Enlargement of any of their Members or menial Servants out of Execution by their Mace alone without an Habeas Corpus Writ of Privilege or special Act of Parliament or matter of Record for the Sheriff or Officers Indemnity against Actions of Escape or for the Plaintiffs relief to recover his Debt by a second Execution for the proof of all this I must refer the inquisitive Reader to Mr. Prynne's (m) Sect. 10. a p. 622. ad 870. Fourth Part of his Brief Register wherein he hath largely examined most of the then claimed Privileges of the House of Commons and disallows of them when not judged by the King and Lords In which Controversie I shall not presume to write any thing because it will be more pleasant and satisfactory to have recourse to himself SECT 10. Concerning Regulating Elections THE first thing I find concerning new Elections in the place of Absents and Defaulters is in the 5 E. 2. Cl. 5 E. 2. m. 26. dorso as I have touched before divers Knights Citizens and Burgesses departing from the Parliament the King thereupon issued out Writs to several Sheriffs to summon them to return to the Parliament Vel alios ad hoc idoneos loco ipsorum sâ— ad hoc vâ—care non possunt eligere or to chuse other fit persons in their places if they cannot be at leisure to come up The Commons in this Age medled not with the re-summoning or causing new ones to be Elected in the rooms of those that could not come I have before instanced in several Summons The King anciently only ordered new Elections wherein the Kings ordain the Sheriffs to re-summon the Members of former Parliaments or others for those who were dead or unable and sometimes but one of those By which it appears that in those days the King solely Authorized new Elections where any were dead or disabled The first Petition against an undue Election First Petition against undue Elections Prynne 's Brevia Parl. râ—â—iviva p. 286. A nosâ—re tres excellâ—nt tres gracious Seignior nostre Seignior le Roy les â—res nobles Seigniors Sâ—ges Comuns c. pleignont les Major c. that I have met with is Anno 7 R. 2. from the Mayor Bailiffs and Commons of Shaftsbury To our thrice Excellent and thrice Gracious Lord our Lord the King and the thrice noble Lords and sage Commons of this present Parliament That whereas they had chosen Walter Henly and Thomas Steward the Sheriff of Dorsetshire for the last had returned Thomas Camel to the great dammage of our Lord the King and contrary to the Will of the Mayor c. So that here the Complaint is to the King the Lords and Commons jointly and the name of this Camel is not endorsed returned in the Writ but the other two In all the Statutes made for regulating Elections they run See Freeholders Grand Inquest p. 15 16. The King willeth and commandeth 5 Ric. 2. c. 4. Our Lord the King at the grievous complaint of the Commons hath ordained 7 H. 4. c. 15. and so Our Lord the King ordained 11 H. 4. c. 1.5 H. 5. and such like in all the Statutes to 8 H. 6. So in the Statute 5 R. 2. Par. 2. c. 4. All Persons which shall from henceforth receive the Summons of Parliament Prynne's Plea for Lords p. 393. and come not at the said Summons except he may reasonably and honestly excuse himself to our Soveraign Lord the King shall be amerced and otherwise punished as of old time c. So that here the Excuse is to be made to the King so that it was not then in use for the Commons to fine and tax their Members In the Parliament holden at Westminster 5 H. 4. Id. 391. Rot. Parl. 5 H. 4. num 38. because the Writ of Summons of Parliament returned by the Sheriff of Rutland was not sufficiently or duly returned as the Commons conceived the said Commons prayed our Lord the King The Commons petition the King and Lords to examine and order undue Returns and the Lords in Parliament that this matter may be duly examined in Parliament c. Whereupon our Lord the King in full Parliament commanded the Lords in Parliament to examine the said matter and to do thereupon as to them should seem best in their Discretions So the Lords called before them the Sheriffs and Parties and it was agreed by the said Lords that the Sheriff should amend his Return and the Sheriff for his default should be discharged of his Office and committed Prisoner to the Fleet and make Fine and Ransom at the King's pleasure Upon this and other Precedents Mr. Id. p. 364 365. Mr. Prynne's Opinion Prynne saith That no Statute doth give the Commons House the least Power or Authority to judg or determine the Legality or Illegality of any Elections but leaves this to the King and Lords to redress as at first before their making and gives the Knights duly chosen but not returned a hundred Pound Damages against the Sheriffs and Citizens and Burgesses forty Pound against Mayors and Bailiffs who make false Returns by way of Action of Debt in the Kings Courts at Westminster or in the Star-Chamber when in being or before the King Lords and Council as in Bronker's case Dyer fol. 113 168. Plowden fol. 118. to 131. Old Book of