Summons to Parliament and the Stile of Barons it was less difficult for those Great Barons to procure a Law to exclude the rest wholly from having any Right to sit in the Parliaments under the name of Tenant in Chief only And to this purpose doubtless saith Mr. Selden some Law was afterwards made that none should come to Parliament as a Baron that is by vertue of his Tenure but such as should have several Writs of Summons directed to them in which number not only all those of the Ancient and Greater Barons were comprehended but others to whom Writs should be directed which is in effect that no Tenure should any longer make a Baron of the Kingdom but that the Writ of Summons only should make a Baron It is not improbable for the reasons aforementioned that such Law was made the 49 H. 3. and farther for that we find that the Abbot of Leicester in the 26 E. 3. was discharged from being summoned to Parliament amongst other reasons that he was not summoned to Parliament before 49th year of H. 3. and after that Interpotalis vicibus as if part of the Constitution had been that those of the Ecclesiasticks who at that time were accounted the Barones Majores so declared by having Writs of Summons to Parliament should have Writs of Summons to Parliament thence after in Succession And herewith agreeth Mr. Cambden Brit. fo Henricus tertius ex tantâ multitudine quae seditiosa turbulenta fuit optimos quosque rescripto ad Comitia Parliamentaria evocaverit ille enim ex satis antiquo scriptore loquor post magnas perturbationes enormes vexationes inter ipsum Regem Simonem de Montfort alios Barones motas sopitas statuit ordinavit quod omnes illi Comites Barones Regni Angliae quibus ipse Rex dignatus est brevia summonitionum dirigere venierent ad Parliamentum CHAP. XVI SO that it appears clearly that the Feudal Baronies about this time were quite discharged so far that no man by a feudal Barony had any Right to sit in Parliament and those that were feudal Barons before this time by the Alienation of their Baronies afterwards did not cease to be Barons But for that the Majores Barones and such as had then Writs of Summons and were appointed to make the House of Lords for after time were then Barons by Tenure It continued an Opinion some time that no man was bound to answer such Writs of Summons but those that were bound thereto by their Tenures thence it was that after this Constitution many that were feudal Barons before have taken a Liberty to entail their Baronies with the Lands that were held per Baroniam upon the Heirs Males whereby the Heirs general or next Heir Female were excluded and an Heir of the half Blood hath enjoyed the Honor with the Lands by vertue of the Entail We will trouble the Reader with one Instance of this kind and that is as late as Q. E. William Lord Paget of Beaudesert entailed the Baronies of Longdon and Haywood by Fine which descended to Henry his Son and Heir who had Elizabeth his Daughter and Heir died 11 Eliz. after whose Death Thomas Brother and Heir Male of Henry entered into the Baronies aforesaid and was summoned to Parliament This was allowable because the Honor of the Name and Family was thereby better supported and the Office of a Baron continued in the Family and the Duty of it better performed by such direction of the Descent And we do also observe that after the reason of being a Baron from Tenure did cease the following times kept the Old Form of Speech tenere per Baroniam was used commonly to denote a man a Baron That the Law is as we have said appears for that an Issue at Law whether Baron or not ought to be tried by the Parliament Records of his Summons and Session there as a Baron and not by the Records of the Exchequer to prove the Tenure I will not therefore trouble the Reader with what is reported to us in our Year-books nor my self in reconciling the seeming disagreements there about this matter onely thus that the Judges have sometimes spoken cum vulgo and not agreeable to the true notion of the Law and that they did not judge according to Law in the case of Thomas de Furnival But the Barons being anciently first so by Tenure did so stick with the Judges that they allowed Thomas de Furnivals Plea that he did not hold per Baroniam to discharge him from being a Baron though he had been summoned as a Baron and sate in several Parliaments as such But of this more hereafter For that which now made Parliamentary Barons was the receiving of a Writ of Summons to Parliament Before the 49 H. 3. The Bishops were of the number of those that were majores Barones and had Writs of Summons to Parliament among the rest of the great men before the making of the Law aforesaid and they by this new Constitution became Barons for them and their Successors not by Tenure any longer no more than the great Lay Barons but by virtue of the Writ of Summons and by the afore remember'd Constitution and Law made some time about the 49 H. 3. And though the Lands of the Bishops in the time of the Conquerour which were put under that Tenure be alienated or exchanged as they might have been I am sure if they are not before the Statute of Queen Elizabeth put a restraint upon them yet the Succession of the Bishops to their Baronies remains It is a question I know whether a Bishop can demand his Writ to Parliament before the restitution of the Temporalities upon his Consecration there are valuable Opinions on both sides but if the restitution of the Temporalities must be first made it is I conceive upon no other reason than that he is not completely Bishop before that is done no more than a Rector is a complete Rector after Institution before Induction be made though he ought I conceive to have his Writ upon Consecration because upon vacancy of the See the Guardian of the Spiritualities used anciently to have a Writ of Summons to Parliaments as Diocesans themselves And now the Baronage Secular is affixed to Families and the Spiritual Baronage to the Office and Succession And now Birth designs the Temporal Baron and Consecration of the Bishop designs the Spiritual Baron nay single Election without Confirmation or Consecration If elected onely they were summoned to Parliament by the addition of Electi if confirmed and not consecrated then they are in the Writ of Summons styled Electi Confirmati And Mr. Selden further tells us that there never was any that had the Title of a Bishop in England and of the Kings Creation since the Normans but was a Baron of Parliament and though the Regular Barons and such of them who had Writs were discharged upon their Prayer and omitted to be
Judgments good without an Original upon a Verdict If the Causes that are properly now of the cognisance of that Court of Common Pleas had been allotted to that Court Originally when the distribution of Administration of Justice was made in the Constitution of the Government that Court by its proper Authority and its own Process would have done Justice to all its Suitors without first expecting a Writ out of Chancery to bring the Cause before them or leaving any right without remedy to complain in Chancery of the defects of Justice in that Court But that Law of Magna Charta cap. 11. before-mentioned which erected the Court of Common Pleas fix'd the Judges and appropriated civil Causes to their Judicature no longer now ambulatory was the first step that was made to reduce the Court of Barons called Curia Domini Regis in which the Capitalis Justiciarius did preside Yet still this Court continued a Court of Pleas of the Crown and Appeals and for those that had the Priviledge of that Court as Officers Dependents Suitors as appears by Bracton l. 3. cap. 7. Rex habet unam propriam Curiam sicut Aulam Regiam Justitiarios Capitales qui proprias causas Regias terminant aliorum omnium per querelam i. e. Appeal vel per privilegium seu libertatem This Sir Edward Coke imagines is meant of the Kings Bench but that must be a mistake for sicut Aula Regia is not competent to that Court as now the Capitales Justitiarii were not the Chief Justices we now have For the Office of the Capitalis Justitiarius did yet continue But then that which follows in Bracton the description of the Justices of the Court he before spake of puts the matter out of doubt Item saith he Justitiariorum quidam sunt capitales generales perpetui majores à latere Regis residentes which terms are agreeable to none but the Barons But this sort of Judicature was not fit for continuance and the Barons were to be reduced they were dismist of this Jurisdiction about the time that change was made in reference to them in the Parliament for as long as they continued in their numbers and power so great as they were both Courts and Parliaments were troubled with tumultuous heaps of people brought thither by the Barons to countenance their pretences of which who will may see enough in Eadmerus And this reducement was I doubt not about the end of the Reign of H. 3. when the first Writs were issued to chuse Knights of the Shire Philip Basset was the last of these Capitales Justitiarii Sir Henry Spelmans Glossary p. 415. And then the Court of Kings Bench came to have such Judges as at this day ad obitum H. 3. 1272. Summorum Angliae Justitiariorum authoritas cessarit postea Capitales Justitiarii ad placita coram Rege tenenda appellati sunt saith an ancient Anonymous Author quoted by Sir Hen. Spelman Glossary 406. That ancient Style of Capitalis Justitiarius Angliae is now allowed to the Chief Justice of the Kings Bench though his legal Style is Capitalis Justitiarius ad placita coram Rege tenenda 2 E. 1. Radulphus Hengham was made the first Chief Justice of the Kings Bench as Sir Henry Spelmans Glossary 416. But the Chief Justices of the Common Pleas were first made about the time of King John's Magna Charta when that Court was fixed as is before remembered Sir Henry Spelman out of Florilegus tells us Martin Peteshus was Chief Justice of the Common Pleas 1 H. 3. Neither did E. 1. trust the Barons with the Government of his Revenue as it was before the Capitalis Justic and the power of the Barons was reduced but he made Adam de Stratton a Clerk Chief Baron but in what time of his Reign doth not appear But they continued after they were reduced from the business of the Kings Bench and from that of the Court of Common Pleas to have the Government of the Revenue and making a Court of Exchequer And they still continued the Exercise of their ancient ordinary Right and judged Common Pleas in the Exchequer until the 28 E. 1. And then in the Statute called Articuli super Cartas cap. 4. it was enacted That no Common Pleas shall be henceforth held in the Exchequer contrary to the form of the Great Charter Their exercising their power lastly in that Court may be the reason why the Judges of that Court are called Barons Sir Henry Spelman saith he hath an uninterrupted Succession of the Barons of the Exchequer from the sixth year of Edward the Second by which it appears that the present Constitution was established after the Kings Bench and Common Pleas were made such as they now are But there was one Power and Authority that was inseparable from the Baronage and that is the Tryal of Peers the ancient Curia Regis continues to this day to that purpose as it must no other provision being ever since made therein This is the ancient Court of Peers the Curia Regis when revived The Power and Authority of the ancient Capitalis Justitiarius is as often revived as that Court is erected for Tryal for Offices at Common Law can be no more nor less than the Law appointed That he is called High Steward is no Objection to us for so was the Capitalis Justitiarius called and Justitiarius and Seneschallus are used one for another in the Language of those times Sir Henry Spelmans Glossary 403. And this is the true reason I humbly conceive of that Tradition that the High Steward by the Kings constituting him such hath such mighty powers that are fit to be trusted with him no longer than while he is busie about that piece of Justice for which he is appointed and he is not to receive his Commission but just at his entry upon the business of the Court and not before The power of this Capitalis Justitiarius was the same with that of the Mair of the Palace in France from whence the Conquerour brought this Office which was the same or greater with the Authority of the Praefectus Praetorio amongst the Romans It is a thing to be wished that Gentlemen that apply themselves to the study of Antiquities that relate to our Laws and Government would design to adorn and cultivate the present Laws and to make out their reasonableness rather than to innovate upon us by bringing back what is obsolete rejected and antiquated and that they would contribute what they can to refine it from many absurd reasons that dishonour our Faculty which are the best our Books afford even for some of the Regulae juris I shall instance onely in one or two of them Why the Father cannot inherit the Lands of the Son it is told us for a reason in our Books that Terra est quid ponderosum and will not ascend in the right line whereas the true reason is this the Lord that first granted the Fee neglected the Father gave
it to the Son and his Descendents and to the Family he should derive from himself and when this was alienated in Fee the descent of it was directed agreeably to the manner and direction of the first Collation If the Father gave the Son the Estate there was a Tenure created of the Father as there was in all Feofments of the Feoffer before the Statute of Quia emptores terrarum and it is a Rule in Law that a man cannot be haeres dominus Stamford's Exposition of the Prerogative chap. 5. fol. 23. B. If before the Statute of Quia emptores the eldest Son had enfeoffed the middlemost to hold of him and had taken his Homage the middlemost dieth without Issue the youngest should have had the Land and not the eldest Howbeit if there were no youngest Son or any other Heir than the Feoffor might claim the Land again by Escheat and not otherwise Another is this for a reason in our Law why the Children of several venters shall not inherit each others Lands it is told us it is so because they are but of the half blood to one another and therefore the Brother of the first venter shall not succeed to the State of the Brother by a second venter which dies without Issue But the Land must descend to the Uncle But this Uncle can be but of the half blood to the Nephew and the very reason that is given for the Law makes the Law unreasonable But the true reason why the Brothers of different venters cannot inherit each other is a disallowance that our Ancestors the Saxons had of second Marriages they as most of the Germane Nations esteeming them as concubinat and at best but as permitted Fornication So Tacitus tells us in his Book de moribus Germanorum that they did not allow of Second Marriages Ne non maritum sed matrimonium ament non nuptam sed nuptias and agreable to this Opinion are descents governed in several Countries in Germany at this day This tho' it is apt to excite all Gentlemen of the Robe never to acquiesce in any reason of the Law that is not sence which if they do they will forfeit their Reason and Judgment I should not have been so impertinent as to have mentioned in this Discourse but that this dealing in Causes without the exercise of clear reason about them hath brought it to pass that much of our Law will not sort to Natural Reason and Justice and this gave one great occasion to the Rise and Growth of the Court of Chancery Since it came in my way to shew the Original of the other Courts and the Reader may wonder that there is nothing in Antiquity that gives Authority to so celebrated and so busie a Court as this is at this day I will here offer an account of the Rise and Growth of it which will prepare the way for taking of it down which is no less a Reproach than it is a Grievance to the Nation There is nothing so great a Reproach to a Nation than to have Laws that are confessedly not good and equal to continue them and yet to allow of an Authority to reproach them with Iniquity that our Courts of Law should be under Rules and Obligations to pronounce Judgments which a single Gentleman shall authoritatively controul and condemn as unrighteous that Law and Equity should be Opposites That a Judgment must be made up and formd in a Case and what is equal just and fit therein must not be considered though it can be and will in another Court have a judicial Consideration Our Judges at Law take themselves bound not to hear or regard the Allegations of the Defendants against the Plaintiffs pretence which ought in good reason to bar them therein or at least qualifie the Judgments when the same matter shall be heard in Chancery and prevail either wholly to set aside or to qualifie the same Judgments This is not only to be complain'd of as derogatory to the Reputation of the Wisdom of the Nation but is insufferably oppressive to the Subject by the multiplicity of Suits tedious and vexatious Delays Nay by this ill Contrivance the Expences sometimes equal sometimes exceed the Value of the Right which is litigated and which is worse the Event of the Suit is very uncertain and fortuitous But this is not all our Law it seems is not a Rule that extends it self to all Causes and we have Rights confessedly such and which can be judicially remedied to which the Common Law extends no Relief For a thousand Causes in a year are for that reason heard in the Court of Chancery Two such Reproaches no Nation but ours hath ever yet incurr'd or suffer'd For Law and Equity is no where else opposed and every Right hath his Remedy by the Law of the Country but ours The first great occasion to the rise of the Chancery was Feoffments made upon Trust to uses in the time of our Warring about the Title of the Crown to avoid Forfeitures The Judges in tenderness to the Condition and necessity of those times did judge that an Use was no Right though most certainly it is For it is jus ad rem that nothing might be forfeited when it depended upon chance whether a man should be a good Subject or a Traitor And the same consideration easily admitted of any Authority that would interpose to relieve against those who would abuse or deny such Trusts and no body brought into question that authority by which a piece of justice so necessary to the Nation was administred Another great reason of the business of the Court of Chancery is that which we before-mentioned that we have not improv'd the Statute of Westm 2 C. 24. And a third is the ill conducting of our Laws our Ancient Judges were infected with the Monkery of that time men of no Learning and of a vain Subtilty The Theology of those times was insipid and most trifling and the Administration of Justice agreably turned into a vain art of disputing the apices juris and a subtilty was used too fine for business and to govern the affairs of Men that governed themselves by none of those Superfineries They argued without Discourse or discoursed from positive Rules or Presidents which were almost the same with them as Rules of Law and not from the true Merits of the Cause and its own particular reasons of Right And the Common Law which is Lex non scripta i. e. that which a wise Judicature should declare upon the consideration of the present Case was by the Proceedings of our Courts turn'd into a Lex scripta positive and inflexible and the Rule of Justice could not accomodate it self to every Case according to the Exigency of Right and Justice But if it were consider'd that there can be no Prescription against Justice that no Presidents where a Right hath not been relieved can be pretended why it should not be assisted hereafter And if a matter