Goods thereof to be done as shall please him There is in this Oath as great Security taken Observations on this Oath as morally can be that the Judges perform their Office uprightly and judge according to the Law and if this will not make them wary how they give Judgment contrary to Law there are other Constraints upon them As first That the King may displace them when he pleases they holding their Places only durante beneplacito Secondly The House of Commons may question them for any false Judgment and Miscarriage in their Office which must be a great Check and deterring of them from giving any unjust Judgment either for Lucre-sake by Bribes or Partiality of Affection There are besides others two illustrious Examples of punishment of Corrupt Judges the one of Sir William Thorp (t) Rot. Parl. 25 E. 3. Rot. 10. condemned for breach of his Oath in taking Bribes Judges punished for breaking their Oath He was Indicted before the Earls of Arundel Warwick and Huntingdon the Lord Gray and Lord Burghers 24 E. 3. and the Record saith Ideo consideratum per dictos Justiciarios assignatos ad judicandum secundum voluntatem Regis secundum Regale posse suum because he broke the Oath which he took to the King and so was adjudged to be hanged The (u) Exact Abridgment p. 74. Record of this Judgment was brought into the Parliament 25 E. 3. the King having by a Writ under the Privy-Seal stayed his Execution and it was read opeâ— before the Lords and all the Lords affirmed the Judgment to be good provided this Judgment should not be drawn into example against any other Officers who should break their Oaths but (z) Qui praedictum Sacramentum fecerunt fregerunt habent Leges Regales Augliae ad custodiendas only those that took the said Oath of Justices and broke it such to whom the Royal Laws of England are committed The other is the Famous Sir Francis Bacon Lord St. Albans who being Lord Chancellor was found guilty of taking Bribes by his Servants whom though many for his great Learning would acquit as leaving too much to his Servants yet he fell an illustrious example of Justice against the highest Judges and in the forecited Record against Sir William Thorp it is apparent that the Lords who in those days were the sole Judges in Parliament thought no persons breach of Oath was capitally to be punished but only the Justices Before I come to speak to some of the long Parliaments writing Champions misapplication of the Kings Power in his Courts I think it expedient to give some Characters I have met withall of the qualifications of Judges In a Speech made to Justice (a) MS. Speech penes Rad. Thoresby de Leedes Gen. Manwood when he was chosen Lord Chief Baron the Chancellor tells him There are four things requisite in a Judge First His knowledge of the Law which is presumed every one hath that the King appoints to be his Justiciary Secondly Discretion that though in his Judgment he may vary from the letter of the Law yet he may never judge contrary to the intention of it which is Animus Legis Thirdly Integrity for it were better to have a Judge of convenient learning and discretion that would command and rule his Affection and Judgment than one of excellent knowledge and discretion that will submit the same to his corrupt Affections Fourthly Care and diligence For if a judge be furnished with all the preceeding qualifications yet if he be slothful and do not expedite his Judgment all the former serve to little purpose for qui diâ— distulit diâ— noluit My Lord St. Albans (b) Essays though he fell as before I have noted under great censure yet in his Essays tells us that a Judge's Office is Jus dicere non Jus dare that they ought to be more wise than witty more reverend than plausible more advised than confident and above all things that Integrity was their Portion and proper Vertue The unjust Judge being a Capital remover of Land-marks Injustice making Judgment bitter and delay sowre Another famous (c) E. of Clarendon's Survey p. 125. Chancellor whose unexpected exile after he was raised to the happiest Estate of a Subject may teach all to judge no State of Felicity assured upon Earth tells us that Judges are presumed by Education to be fitted for the understanding of the Laws and by their Oaths bound to judge according to Right and so must be the most competent to explain the difficulties of the Law which no Soveraign as Soveraign can be presumed to understand and comprehend and that the judgments and decisions those Judges make are the Judgment of the Soveraign who hath not qualified them but Authoritatively appointed them to judge in his stead and are to pronounce their Sentence according to the reason of the Law not the reason or will rather he means of the Soveraign But now I proceed to other matters The Long Parliament impeached all the Judges that had voted the legality of Ship-mony The Long Parliaments Impeachment of Judges as also brought to their Bar the Lord Chancellor that thereby they might strike a greater terror on the Kings Loyal Subjects especially in the House to make them comply with them and though they would have had the Power of nominating and removing the Judges and have rent that branch of his Royal Prerogative from him yet they not trusting if they effected this that it would do them any service when they had put in such Judges as they liked if the King might still Commissionate them according to old form pro beneplacito Therefore they pressed hard They would alter pro beneplacito that every Judge should continue quamdiu se bene gesserit which I only note to show they were desirous to new model the whole Government As the long Parliament of 1641. by their dissolving of Church-Government gave birth to varieties of Opinions The Long Parliament endeavours to weaken the King's Prerogative Schisms and Heresies in Religion so by their design of unloosening mens Obligation to the Monarchy they were forced to make use of many false Inferences and Judgments of the known Laws Amongst which one was when they were beaten off from the several pretences of having some Paramount Power over the King whereby he stood obliged to resign his reason to their Votes they alledged that since the King could not reverse a Judgment given in an inferior Court a fortiori he could not frustrate their Votes being the Supreme Court as well as Council In Answer to which it is to be considered How Judges in their Judgments sustain the Person of the King that in other Courts the Judges sustain the Person of the King the Law is deposited in the hands of the King and all Justice is administred by him and in his name so that his consent is by Law involved in what by Law they
Homagio Ligeancia quibus nobis tenemini is peculiar to the Temporal Lords But that in fide dilectione is not so peculiar to the Ecclesiastical Lords but is inserted into the Lay Lords Writs sometimes The reason why Archbishops Bishops Deans Parsons Prebends and other Ecclesiastic Bodies Politic when they do Homage saith (h) Littleton Cap. de Homagio â—ect 86. Littleton do not say Jeo deveign vostre Home I become your Man from whence Homagium or Hominium comes is (i) Par estre tant solement le home de Dieu because he is solely the Homager of God and so Glanvil Lib. 9. c. 1 2. Bracton fol. 78. F. Britton c. 68. lesta L. 3. c. 16. resolve that no Man (k) Post consecrationem hom â—gium non faciunt quiequid fecerunt ante sed tantum â—idelitatâ—m elected Bishop after Consecration doth Homage whatever he hath done before but only Fealty and no Convent or Abbat or Priâ—r ought to do Homage because they hold in anothers name viz. the name of the Churches But that these Ecclesiastics swore Fealty appears by many examples produced by Mr. Prynn (l) Brief Register part 1. fol. 196. to 206. p. 427 657 663. and what Oaths they took in his abridgment of the Records of the Tower But this is now of little use and so I leave it and shall observe some Particulars which Mr. Prynn and others have noted from the several Writs of Summons to Temporal Lords First it may be observed 1. Observations upon the Writs to Temporal Lords That it alone did not ennoble that a Summons by Writ though for two or three Generations from Father to Son did not ennoble the Blood to make them Barons So Ralph de Camois 49 H. 3. was summoned by Writ and ranked in the Roll above all Barons and Ralph his Son Anno 7 E. 2. But (m) Claus 7 R. 2. m. 32. dorso Thomas the Grandchild being chosen one of the Knights for Surry was discharged by the King 's Writ because he and many of his Ancestors were Bannerets and King Richard the Second summoned him to that very Parliament and he was summoned ever after during Life yet his Posterity as others were omitted which if they had been Barons properly as those by Creation and Tenure of Lands had not been omitted but might have challenged Summons ex debito Justiciae But I cannot enter into this long Controversy First and secondâ— Brief Register the curious may peruse Mr. Prynn and Elsyng's ancient method of holding Parliaments Page 33. who is of opinion that every degree of Baron passed with actual Ceremony and those Patents some had whereof the first upon Record he saith was 11 R. 2. to the Lord John Beauchamp of Rolt was an entailing of the Honour rather than the Creation because the words are ipsum Johannem in unum Parium Baronum Regni praeficimus whereas if he had been then created the words should have been per praesentes praefecimus Besides we find Henry Bromflet Knight was created by special Writ and his Heirs Males Barons de Vescy 27 H. 6. (n) Claus 27 H. 6. m. 26. dorso â—ntred after the names of the Temporal Lords in the very Summons in common Form to which is added Volumus enim vos haeredes vestros masculos de Corpore vestro legitime exeuntes Barones de Vescy Now this special Writ and Clause of Creation had been meerly void and nugatory had the general Writ alone ennobled him and his Posterity Yet in all the (o) Prynne part 1. Brief Register p. 228. subsequent Summons 28 29 31 33 38 H. 6. He is only called Dominus not Baro de Vescy as also may be noted of Beauchamp Secondly 2. The use of Barâ— in Writs how rare It may be observed that the word Baro and Barones are frequently met withal in Histories the Clause-Rolls of King John and H. 3. and in the Preface of Magna Charta and several Statutes applied to all the (p) Ibid. p. 218. Temporal Lords of Parliament yet in all the Clause-Rolls and Writs of Summons Mr. Prynn hat not observed any particular Persons amongst them summoned by the Title of Barons but only the Barons of Graystock and Stafford from Ed. 1. to H. 6. as Johanni Willielmo Radâ—â—pho Baroni de Graystock and so in Ed. 1. and 3. Edmundo Radulpho Baroni de Stafford Thirdly 3. Title of Dominus in Writs of Summons as to the Title of Dominus Mr. Prynn saith It is not to be found given to any but two before the time of H. 6. The first is John de (q) Cl. 16 E. 3. par 2. m. 13. dorso Moubray stiled Dominus Insulae de Axholm none else having this title till after the Reign of Richard the Second The next so stiled is 11 H. 4. (r) Cl. 11 H. 4. m. 32. dorso where a Writ issued Johanni Talbot Domino de Furnival which though omitted in some Summons after was again used in the Summons to him (s) Cl. 4 H. 5. m. 16. dorso 4 H. 5. and H. 5. after which none is found stiled Dominus till (t) Cl. 22 H. 6. m. 21. dorso 22 H. 6. that Robert Hungerford Chevalier is stiled Dom. de Mollins as he is in 25 H. 6. which gave the Title of Dom. de Poynings to Henry Percy and in Cl. 27 H. 6. m. 21. dorso this Title Dominus is given to Hungerford Percy and four more after which it grew more common to them and others summoned as may be seen in Sir William Dugdale's Summons lately Printed who (u) Cl. 49 H. 3. m. 5. 49 H. 3. reckons Dom. Hugo Dom. Humet and Dom. Stanford Fourthly 4. Title of Chevalier Another Title given to Barons of the upper House is that of Chevalier which was not given to any Temporal Lords or Barons in any Writs or Lists of Summons to Parliament before 49 Ed. 3. (w) Cl. 49 E. 3. n. 4.6 dorso 50 E. 3. part 2. m. 6. dorso wherein Summons issued Willielmo de Morle Chevalier Willielmo de Aldburgh Chevalier Joh. de Welle Chevalier Hugoni de Dacre Chevalier After which it grew more common under King Richard the Second Henry the Fourth and Fifth After the beginning of H. 6. and during the Reign of H. 6. and Ed. 4. there was scarce any Temporal Lord in the lists of Summons but was stiled Chevalier or Miles and so it continues to this day though not as Mr. Prynn saith because they were all generally Knighted for their greater Honour for it is apparent in the Lists exhibited by Sir William Dugdale that most of the Barons by descent though never Knighted had the Title Fifthly 5. Of Councils that were not Parliaments There is great difference betwixt Writs of Summons to general Parliaments and particular Councils upon emergent occasions which are not properly Parliaments All Bishops Abbats Priors Earls Lords Barons
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
Council being in the Charter to my judgment reckoned as one of their Franchises or rather something exceeding their municipal Liberties and Free Customs being coupled to them with an and to have a Priviledge to have some of them Members of the great Council of the Kingdom What the Tenents in Capite were summoned for for so I think the words ad habendum commune Concilium Regni de Auxiliis must be understood But then when it is restricted there with de Auxiliis only it may very well give a ground to their opinion that think the principal use was to proportion the Aid or Tax and assent to what the King the Bishops Abbats Priors Earls Barons and Peers did ordain However this was That such great Numbers sate not with the Lords it seems clear to me that this numerous body of so different an Order from the Barons majores must have a distinct Place for consulting apart and must select Committees to transact with the King and Lords and must for order sake appoint some to speak for them what they petitioned for or assented to and could not constantly sit with the Prelates and Lords and do rather believe that the Prelates had one place where they sate and the Barons another and these Tenents in Capite a third at least for their usual Consultations among their own Order and met in the public place when there was occasion or might have access by Committees which certainly was the practice in after-times as appears in that Parliament of 6 E. 3. (k) Rot. Parl. 6 E. 3. num 2. Cest assavoir les Prelâ—â—z par eux meâ—mes les ditz Countes Barouns autres Grantz par eux mesmes auxint les Chivalers des Countes par eux mesmes No mention of Citizens or Burgesses the morrow after the Nativity of our Lady the King requiring the advice of his Parliament touching his French Affairs and Voyage thither It is said they thereupon treated and deliberated that is to say the Prelates by themselves and the said Earls Barons and other great men by themselves and also the Knights of the Counties by themselves and then gave their advice From whence by the way we may observe the true ground of calling our Parliament Houses without the King the three Estates Having dispatched this I come now to consider the Speakers of the House of Commons Hackwel (l) Modâ—â— tenendi p. 200. Method of Parl. 124. The first Speaker upon Record and Elsyng name the first that is found upon Record to be Sir William Trussel 13 E. 3. Num. 9. where it is said Les Chivalers des Countes les Commons responderent per Monsieur William Trussel but the Record names him not Speaker however he performed that Office then Hackwel names Scroope before him 6 E. 3. and Sir Peter de la Mare after him but the first that Mr. Elsyng or Mr. Prynne (m) Prynne's Abridgment p. 151. finds upon Record and by the name of Speaker is Sir Thomas Hungerford 51 E. 3. for it is said that the last day of the Parliament he declared that during the Parliament he had generally moved the King to pardon all such as were in the last Parliament unjustly convicted which imports that this was a Petition of the Commons presented by him their Speaker Anno 1 R. 2. Sir Peter de la Mare being Speaker made his Protestation that what he had to say was from the whole House therefore required if he should speak any thing haply without their consents that the same ought to be amended before his departure from the said place The first Petition we meet with that a Speaker (n) Abridgment of Records p. 174. Petition for Freedom of Speech made to the King from the Commons was 2 R. 2. by Sir James Pickering their Speaker that if he should speak any thing that haply might be ill taken it might be as nothing so as the Commons might at any time amend the same and the like he petitioned for himself which is the first Petition as to Liberty of Speech we meet with The first Speaker presented to the King in full (o) Id. p. 360. Parliament by the Commons 20 Ric. 2. was Sir John Bushey the King 's great Favourite In this Parliament the Houses sate together in a long (p) Hackwel Moâ—us p. 202. House built of Timber in the Palace-Yard at the Impeachment of the Duke of Gloucester the Earls of Arundel and Warwick Sir Arnold Savage was Speaker 2 H. 4. who is the first upon Record that the Commons were required by the King to chuse as Speaker and he was again in 5 H. 4. who desired the King in the name of the Commons that they might freely make complaint of any thing amiss in Government which was yielded to by the King Anno 7 H. 4. Sir John Tiptost was chosen Speaker who desired to be discharged because of his Youth but he was allowed he forgot to make the usual Protestation but came up the next day and made it with this Addition (q) Rot. Parl. 7 H. 4. num 6. That if any Writing were delivered by the Commons in this Parliament and they should desire to have it again to amend any thing therein it might be restored to them which was granted While he was Speaker he Signed and Sealed the Deeds of the entailing of the Crown on H. 4. (r) 7 H. 4. with these words Nomine totius Communitatis He was a Person of extraordinary Parts Son of John Lord Tiptost and for all the Apology for his young Age he was within three Years after made Lord Treasurer of Enggland and by H. 6. made Marquess of Worcester Anno 1 H. 5. William Sturton Esquire was chosen Speaker who without the assent of his Companions did agree before the King to deliver in Parliament certain Articles but three days after the Commons sent Sir John Doreword (r) 7 H. 4. with several of their Members to the House of Lords to declare to the King that their Speaker had no Authority from them to yield thereto and the King was pleased to accept of it There are three Petitions the approved Speaker makes to the King First That the Commons may have freedom of Speech as of (s) 25 H. 1. num 10. The Speakers of latter Times express the particular Privilege of Freedom from Arrest right and custom they have had and all their ancient and just Privileges and Liberties allowed them In Sir Thomas Moor's Speech 14 H. 8. it was thus worded That if in communication and reasoning any man in the Commons House should speak more largely than of duty they ought to do that all such offences should be pardoned and to be entred upon Record which was granted only I find that H. 4. (t) Rot. Parl. H. 4. num 10. said that the hoped or doubted not that the Members of Parliament would not speak any unfitting thing or abuse
intended to invade the Subjects Liberties but if they allowed the Writ the delicious Power of Imprisoning such as they had a Pique to was utterly lost and all Persons referred to the ordinary Courts of Justice or upon their failure to the House of Lords Sir William Jones against any ones Release by Habeas Corpus if they were imprisoned by the House of Commons the Supreme Tribunal of England Sir William Jones insisted much upon the Power of the House and that they did not intend by that Act to bind themselves which yet must bind the King though it might as well be alledged That he did not intend to bind himself by it However Sir William persisted urging See Debates of the House p. 217. That whatever Reasons may be given for discharging such as are not committed for Breach of Privilege if grounded on the Act for the Habeas Corpus will hold as strong for discharging of Persons for Breach of Privilege and so consequently deprive the House of all its Power and Dignity and so make it insignificant and said That was so plain and obvious that all the Judges ought to take notice of it and so judged it below the House to make any Resolution therein but rather to leave the Judges to do otherwise at their peril and let the Debate fall without any Question But Baron Weston had the Courage to grant the Habeas Corpus Baron Weston grants the Habeas Corpus as rather willing to expose himself to the Displeasure of the House than deny or delay Justice contrary to his Oath I could not omit this remarkable Passage as a Specimen of the Arbitrariness of the Leading Party in that House Brief Register part 4. p. 846. and now shall proceed to Mr. Prynne's Remarks upon the Proceedings of the long House of Commons He observes Privilegia omnino amittere meretur qui sibi abutitur concessa penestate Ejus est interpretari cujus concedere Summa Rosella Privilegium 3. That Privileges may be lost by the abuse of the Power and that whatever Privilege the House hath is from the King's Grant or Toleration Therefore according to the Canonists Rule If the Privilege granted be expressed in general dubious or obscure Words then it is in the power of him to interpret who hath the power to grant Now the Petition of the Speaker is That the Commons in this Parliament may and shall have all their Ancient and Just Privileges allowed them Therefore the King Nemini liceat Chartas Regias nisi ipsis Regibus judicare Placita Parl. 18 E. 1. num 19. p. 20. being the sole Granter of these Privileges must be the only proper Interpreter and Judge of them as he is of all his other Charters of Privileges Liberties Franchises and Acts of Parliament themselves after his Regal Assent thereto not the Commons or Persons to whom they are granted and that both in and out of Parliament by Advice of his Nobles or Judges of the Common-Law Therefore he saith first How the Breach of Privilege to be punished according to Mr. Prynne See the Authority Brief Regist part 2. p. 847. That if the Commons by Petition to the King and Lords in Parliament complain of the Breach of their ancient Privileges and Liberties as they ever did in the Cases of Lark Thorp Hyde Clerk Atwyll and others the King by Advice of his Lords in Parliament assisted with his Judges hath been and as he humbly conceives is the sole proper Judge of them and their violations not the Commons who being Parties Prosecutors and Complainants are no legal indifferent Judges in their own or Menial Servants cases if they will avoid partiality which is the reason the Law allows Challenges to Jurors in Civil and Criminal causes Therefore he observes Ibid. p. 1206. that the House of Commons taking Informations without Oath may be easilier abused by misinformation and sometimes thereby are put upon over hasty Votes which upon finding out evil Combinations they are forced to retract Secondly The Chancellor or Lord Keeper to grant the Writ If the complaint of the breach of Privilege be made in the Commons House and thereupon an Habeas Corpus Writ of Privilege or Supersedeas prayed under the great Seal for the Members or menial Servants release whose Privilege is infringed the Lord Chancellor or Keeper of the great Seal representing the Kings person in Chancery the Court for relief in cases of Privilege is the properest Judge and Examiner of the claimed Privilege and its violations upon Oath and other sufficient Evidence assisted by all the Kings Judges in cases of difficulty who thereupon will grant or deny the Writs Thirdly The Judges of the Courts to which the Writ is directed to judge of the validity of the Privilege When these Writs of Privilege Supersedeas or Habeas Corpus are granted to any Member or menial Servants and directed to any of the Kings Courts to enlarge their restrained Persons or stay any Arrests Process or Judgments against them the Kings own Judges in his respective Courts to which they are directed are then the proper Judges of the Privileges of Parliament and of their breaches suggested in these Writs who may examine not only all matters of Law or Fact comprised in them which are Traversable but likewise adjudge allow or disallow the very Privilege it self if no real ancient Parliamentary Privilege allowed by the Laws and Customs of the Realm How far he is in the right I will not undertake to judge but I remember somewhere he wisheth an Act of Parliament to pass to adjust these matters which possibly would prevent many of those chargeable attendances about false Returns and save much expence of time in the discussing of them and enable the Subjects to pay a right and due obedience to them SECT 12. Concerning the Royal Assent to Bills I Have treated so much of this elsewhere as to the sole Power in the King the ancient Custom of Sealing the Acts with the Kings Seal and of some of the Prelates and Nobles as Witnesses of their Assents that I shall only now speak as to the usual formality of passing the Bills into Acts by the Kings last Act. See also his Memorials For Mr. Hackwell hath given a full account of the manner how Statutes are enacted in Parliament by passing of Bills to which Book I refer the curious Reader that would understand the order that is used in the debating and passing of them When Bills are passed by both Houses upon three several Readings in either House Hackwell of Passing of Bills p. 179. ad 182. they ought for their last approbation to have the Royal Assent whereby every Statute is as Mr. Hackwell observes like Silver seven times tryed The Royal Assent is usually deferred to the last day of the Session and because some have been of opinion that the passing of Bills The Royal Assent determines not the Session
procure the Subscriptions and then tender them as it were by their number to affright the King to a Compliance or that the King to whom the Execution of the Laws or suspension in some measure surely appertains might not forbid such Petitions They singled out Sir Francis North then Lord Chief Justice of the Common-Pleas after Lord Keeper and Earl of Guilford Sir George Jefferies then Recorder of London now Lord Chancellor Mr. Justice Withins and others as Subjects of their displeasure for disliking and abhorring the irregular dangerous way of Petitioning But they received more Lustre and Regard in the Eyes of their Soveraign and all Loyal Subjects by their Censure than they did discredit by it It seems worth the while for Persons that have regard to the quiet and repose of the Subject to the Honour and Establishment of the Government and for the Tranquillity and Liberty of their Posterity to consider whether any mortal Man can either produce Precedent or Law to justify the Imprisonment of those Gentlemen Abhorrers of which I have spoken something before in the Chapter of Parliaments I shall now conclude with the last and formidablest sign of Sedition Of Tumults viz. Tumults which are but unarmed and Pen-feathered Rebellion They have the Mien and Standard of it only want the Artillery The fatal black Parliament disciplined them to be ready at any watch word and whatever they voted against the King or Church was ushered in by thousands of all sorts flocking out of the City and Country braving and threatning all along as they went by White-Hall and so in Sholes crowding to the Houses promising to stand by them and crying out for Justice They were so insolent and rude that they forced the Merciful King to withdraw from his Pallace to which he never returned till they brought him to his Barbarous Tryal and Murther That Blessed Kings Sence of them can be expressed by none so emphatically as by himself therefore I shall extract some of his feeling Expressions I (x) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. 4. never thought any thing except our Sins more ominously presaging all those mischiefs which have followed than these Tumults And this was not a short Fitt or two of an Ague but a quotidian Feaver always encreasing to higher Inflammation impatient of any Mitigation restraint or remission Those who had most mind to bring forth Confusion and Ruin upon Church and State used the Midwifery of Tumults by which they ripped up with barbarous Cruelty and forcibly cut out abortive Votes to crowd in by force what reason would not lead Some Mens Petulancy was such as they joyed to see their Betters shamefully and outragiously abused So the Blessed King finding they invaded the Honour and Freedom of the two Houses and used such contemptuous words and Actions against him thought himself not bound by his Presence to provoke them to higher Contempt and Boldness For he saith it was an hardiness beyond Valour to set himself against the breaking in of the Sea being daily baited with Tumults he knew not whether their Fury and Discontent might not fly so high as to worry him and tear him to pieces whom as yet they played but with in their Paws Therefore thinks himself not bound to prostitute the Majesty of his Place and Person c. to those who insult most when they have Objects and opportunity most capable of their rudeness and petulancy Our late gracious Sovereign in later times when some Men were endeavouring to practise the same Methods found some offers of the like at Windsor a place of all others in which one would have thought he should have had the most Honour for the Benefits he did to that Town by his so frequent residence when first the Boys and then the Rabble were set on to shout for a Burgess of Parliament in opposition to a Loyal Person His Majesty favoured even in his own Presence The Prophetick Observation of the Martyred King is worth noting That he believes the just Avenger of all Disorders will in time make these Men and that City see their Sin in the Glass of their Punishment which needs no application but only to desire they would be so just to themselves and their Posterity as to follow no such Precedents and that none will encourage such outragious doings I shall dismiss this ingrateful Subject with the Description (y) Vâ—â—ibus truculentis strepere rursum viso Casare trepidare Murmur incertum atrox clamor repente quies diversis animorum moribus pavebaret terrebaâ—â— 1. Annal. Tacitus gives of the mutinous Tumult of Drusus's Soldiers That the Ring-Leaders when they looked to the multitude with outragious Voices made terrible noises but viewing Caesar shrunk again and of the whole multitude he saith an uncertain Murmur an horrible cry and suddenly a calm by divers emotions of Mind they feared and did affright CHAP. XLIV Prognosticks of Sedition and Faction BOdinus (a) Seditio semel accunsa quasi scantilla impetu populari repente agitatur ac totum prius inflammari solet quam extingui possit De Repub. c. 4. tells us That Sedition once kindled is suddenly fanned and blown by popular fury into a Flame which is wont to set all on Fire ere it can be extinguished The danger therefore of Faction is not to be sleighted but the Government should be watchful over the least Sparks which no Man can forbid or tell whence they may come or how far they may ravage when there is a Propensity to Faction Therefore Governours should not suffer matter of Trouble to be prepared or hatched but crush the Cockatrice in the Egg and the Monster in the Embryo especially (b) Vbi Respublica aegra quave vix cicatrices clade intestina acceptas obduxerit Clapm. de Arcanis dominationis lib. 3. c. 16. When Danger less when the Scars of late Wounds are not healed or hardned as after a Civil War when Factions are most dangerous The danger is less saith my Lord (c) Essays St. Albans when it springs only from the Discontent of the People being slow of Motion and the greater sort of small Strength without the Multitude can do little but the danger is greatest when those of higher Rank wait but for the troubling of the Waters So Jupiter by Pallas's Advice when the other Gods would have bound him sent for Briarous with his Hundred Hands an Emblem to show how safe it is for Monarchs to make sure of the Good Will of their People The motions of the greatest Persons in Government ought to be as the motion of the Planets under the Primum Mobile according to the old Opinion that every of them is carried swiftly by the highest Motion and slowly by its own Therefore when great Men in their own particular motion move violently Liberi usque ut Imperantium meminissent as Tacitus speaks It is a sign the Orbs are out of Frame Where Factions are not Combinations against the Government
its Mitigation So Matt. Paris saith Episcopatus Abbatias omnes quae Baronias tenebant eatenus ab omni servitute sâ—â—ulari libertatem habuerant sub servitute statuit militarâ— and according to the Rules of the Feudal Law which as it was the Law for the most part in Normandy as to Possession and Tenure so was it in England until by the Indulgence of Usurpers as well as of lawful Sovereigns to the great Men and of them to their Tenents and Followers their Tenures became more easie and were changed into Inheritances both Free and Bond. So by Compact or Agreement betwixt kind and favourable as well as indigent Lords and serviceable Tenents as also by the Introduction of the use of the Canon or Imperial Law the Rigor of the Feudal Law was abated and received several Alterations and Amendments by flux of Time and especially by Acts of great Councils or Parliaments and the Necessities or Indulgence of Princes So that instead of more rigid Tenures the soft ones of Fee-simple in all its kinds by Deed or Feofment or inheritable and qualified Copyholds were introduced As to the second Particular concerning William the Conqueror's setling Laws for the equal Government Of the Conqueror's Laws both of the Normans and English I shall first give an account out of (f) Parte posteriori fol. 346. Hoveden what these were and how they were procured He saith That the Danish Laws being understood by the Conqueror to be used in Norfolk Suffolk and Cambridg-shire others (g) Chron. Liâ—â—f See for the Conqueror's Charter and Laws Dr. Brady fol. 17 252 254 258 298 249. add the Deirans and the Isles concerning Forfeitures he preferred them before the other Laws of the Kingdom and commanded they should be observed and gives the reason for it that his and the Ancestors of most of the Barons of Normandy were come from Norway therefore the Laws of the Danes ought to be preferred before those of the Britains viz. of the English and Picts Which saith my (h) Quo audito mox universi compatriota qui legâ—s edixerant tristâ—s essecâ—i unanimiter deprecati sunt quatenus permitâ—eret lâ—ges sibi prâ—prias consueâ—udines â—â—iqua halere Id. num 10. Hoveden fol. 347 num 1. Author being heard by the great Men of the Country who had as hereafter I shall show been appointed to revize the Laws they all were very sorrowful and unanimously intreated him that he would permit them to have the Laws proper to themselves and their ancient Customs under which their Fathers lived and they were born and bred under for that it would be very hard for them to receive unknown Laws and to judge of those things they understood not See Brady's Answer to Argum. Aâ—tiâ—oâ—â— p. 298 299. But finding the King unwilling to be drawn to consent they follow on their suit praying for the Soul of King Edward who bequeathed him his Crown and Kingdom whose Laws they were that they might not have the Laws of strange Nations imposed on them but he would grant them the Continuance of their Countries Laws To which intreaty of his Barons after Counsel taken my Author saith I cannot conceive but here were many of the Saxon Nobility and Men of best Account otherwise they could not call them the Laws their Fathers had lived under and the Normans could not then know much of our Laws or Speech but this was before he had subdued all fully he acquiesced and from that day the Laws of King Edward were of great Authority and Esteem throughout England and were confirmed and observed before other Laws of the Country Our Author further notes That these were not the proper Laws of King Edward but of Edgar his Grandfather which had been little observed for 68 years as in one place and 48 years in another he saith by reason of the Danish Invasions c. and being revived repaired and confirmed by King Edward were called his Laws The Account the Chronicle (i) Anglos Nobiles Sapientes suaâ—â—ge eruditos Id. fol. 348. Spelm. Concil tom 1. fol. 619. of Lichfield gives is this That King William in the fourth year of his Reign at London by the Counsel of his Barons made to be summoned through all the Counties of England all the Noble Wisemen and such as were skilled in their Law that he might hear their Laws and Customs and then gives an account how he approved of the Danish Laws used in Norfolk c. Concerning the Kindness the Conqueror pretended in his first four Years and his Rigour after see at large Dr. Brady in his Answer to the Argumentum Antinormanicum especially p. 260. and 299. But afterwards at the Intreaty of the Community of the English he yielded to grant them King Edward's Laws Before I proceed any further I cannot but note that what Hoveden calls Compatriotae here is called Communitas Anglorum and in both of them afterwards it is called Concilio Baronum by which we may know who these Compatriotae and this Communitas were viz. the Barons or great Men. Our Author proceeds That by the King's Precept out of every County of England Twelve Wisemen were chosen who were enjoyned an Oath before the King that according to their utmost they should discover the establishments of their Laws and Customs (k) Vt quoad possent recto tramite incedentes nec ad dextram nec ad sinistram divertentes nihil addentes nihil praevarieando mutantes Omnia quae praedicti â—urati dixerunt going in a strait Path neither declining to the right or left Hand omitting adding or prevaricating nothing and Aldred Archbishop of York who crowned King William and Hugh Bishop of London by the King's command writ the Laws which the said sworn Persons did produce But it is to be noted that this Chronicle of Lichfield is of a later Date than other Writers and the Laws in it differ from those in Ingulphus The next Testimony is that of (l) Circa sinem Hist fol. 519. num 36. Leges aquiâ—â—mi Regis Edwardi quas Dom. meus inclitus Rex W. authenticas esse perpetuas c. proclamarat Ingulphus who tells us That he brought from London to his Monastery i.e. Croyland the Laws of the most just King Edward which his Lord the famous King VVilliam willed to be Authentic and Perpetual and had proclaimed under the severest Penalties to be inviolably kept through the whole Kingdom of England and commended them to his Justiciaries in the same Language they were set forth in c. of which I shall say something below The Author of Jus Anglorum ab Antiquo and the Argumentum Anti-Normanicum and Mr. Petyt in his Rights of the Commons asserted have writ largely to prove That the Conqueror made little Innovation in our Laws and on the contrary the profoundly learned (m) Answer to Petyt p. 14. Great Officers Normans Doctor Brady hath from undeniable Records
proved that he brought in the Feudal Law of Tenures and much of the Norman Laws and that in his time and for an Hundred years after the Justiciaries or Chief Justices the Chancellors Lawyers Ministerial Officers and under-Judges Earls Sheriffs Bailiffs Hundredaries c. were all Normans likewise the Military Men and Lords of Mannors mostly were such and in his Preface to the Norman History and his Answers to the forementioned Authors every where clears it and proves That though the Conqueror See for proof of the whole Eadmer Hist Novel fol. 6. num 10 20 30. Ingulph fol. 512. a. num 50. That these Great Barons as Tenents in Capite had power to make Laws and Constitutions to bind their Sub-Feudataries is apparent by what Malmsbury de 〈◊〉 Reg. lib. 3. saith That the Laws of W. Fitz-Ozborn Earl of Hereford remained still in force That no Soldier for any Offence should pay above 7 s. The Conqueror's Liberality to the Normans in the first beginning of his Reign promised fair Matters yet he observed no more of those Laws than served for his own interest Yet he also saith That where any Relaxation of the Rigor of the Feudal Laws was the benefit principally accrued to the Norman English who indeed were as active as could be expected to obtain ease to themselves and claim the Advantage of all the favourable Laws had been used in the Saxon times but they themselves were great Oppressors of those under them These Matters therefore being so copiously discoursed of by the learned Doctor I shall pass that whole matter by and come to the third Particular Sir Roger Twysden notes in the Conquerors Policy and so directly speak to the Constitutions of his Great Councils and his Sovereignty in making or confirming Laws As to the third Particular First it is clear that the Conqueror divided the Land among his great Men the Officers and Soldiers for proof of which we need no more but the Testimony of Gervase of (n) Black Book of the Exchequer Post regni conquisitionem post justam Rebellium subversionem facta est inquisitio diligens qui fuerint qui contra Regem in bello dimicantes per fugam se salvaverint hiis omnibus haeredibus eorum qui in bello occubuerunt spes omnis c. praeclusa Tilbury who saith That after the Conquest of the Kingdom and just subversion of the Rebels when the King himself and his great Men had viewed and surveyed their new Acquists there was a strict enquiry made who there were that fighting against the King had saved themselves by flight From these and the Heirs of such as were slain in Fight all hopes of possessing either Lands or Rents were cut off But such as were called and urged to fight against King William and did not if in Process of time they could obtain the favour of their Lords and Masters by an humble Obedience and Obsequiousness they might possess something in their own Persons without hopes of Succession their Children only enjoying it afterwards at the will of their Lords to whom when they became odious they were every where forced from their Possessions Because some are prejudiced against the judicious Doctor Brady for asserting the Conquerours changes that he made I hope they will give ear to what the learned Selden affirms thus * Ex quo cis Normannorum adventum praeter ipsum Regem non fuit in Anglia is qui Allodii ut lequantur Jure sundum possederit cum scilicet aliis ad unum omnes siduciarios proâ—e dixeris Dominos superiorem investiâ—urae Anctâ—rem interpesita side perpetuo agnâ—scâ—ntes Lib. 2. Jan. Ang. That some while since the coming in of the Normans there was not in England except the King himself any one who held Land in right of Freehold as they term it since in truth one may call all others to a Man only Lords in trust of what they had as those who by swearing Fealty and doing Homage did perpetually own and acknowledge a Superior Lord of whom they held and by whom they were invested in their Estates So he Now this Fealty and Homage is now held no kind of Slavery but then it was as I have elsewhere noted Let us hear what the same Mr. Selden a little below saith That the Conqueror did not totally change the Constitution of the Laws Probe tametsi dixeris eversum secundum quod disputant Jurisconsulti Anglicum Imperium Id. Gervas Tilâ— c. 23. Oblatis vomeribus in signum desicientis Agriculturae although we may truly say according to what Lawyers dispute That the English Empire and Government was overthrown by him Thus far that learned Man Let us now return to the Exchequer-book where we find That when a common miserable Complaint of the Natives came to the King that they thus exposed and spoiled of all things should be compelled to pass into other Countries At length after Consultation upon these things it was decreed That what they could by their deserts and lawful Bargain obtain from their Lords The English compound with their Lords they should hold by unviolable Right but should not claim any thing from the time the Nation was conquered under the Title of Succession or Descent Therefore he saith they were obliged by studied Compliance and Obedience to purchase their Lords Favour It is true that in the 55th Law of (o) LL. Gulielm primi Edit Twysden p. 170. William the Conqueror it is said That he wills and firmly commands and grants that all Freemen liberi Homines of the whole Monarchy of his Kingdom may have and hold their Lands and Possessions well and in (p) In pace libere ab omni exactione injusâ—a ab omni tallagio Peace free from all unjust Exactions and Tallage that is extraordinary Impositions and Taxes so as nothing be exacted or taken unless their free services which of Right they ought and are bound to perform to us and as it was appointed to them and given and granted to them by us as a perpetual Right of Inheritance by the Common Council of the whole Kingdom In which we may observe The English have little Benefit by his Relaxation of the Feudal Law that this was no Magna Charta made to English Men these liberi Homines were such as held in Military Service as appears by the 58th Law following and those then were Normans and the Relaxations to them were that these Fees were made Hereditary which was not frequent among Feudataries in those days and the Complaints that were made after and the amendments that Hen. 1. promised were mostly about the hard Taxes and Exactions Therefore I may conclude That the ordinary English tho' many of them might live upon the Lands they and their Ancestors had enjoyed yet their Tenure was changed and they were but Vassals to other Lords 'till by little and little by the ways I have mentioned under the first Heads they
injuries which were brought upon the King beyond Sea by which not only the King but many of the Earls and Barons were disinherited therefore the King required Counsel and Aid of them of a Fifteenth Upon this the Archbishop and the whole number of Bishops Magna Charta granted Earls Barons Abbats and Priors having had deliberation answered the King That they would willingly yield to the Kings desire if he would grant them the long desired Liberties The King saith my Author being led by Covetousness or as he means being desirous of a supply yielded to what the Magnates desired so he granted that which is called Magna Charta so deservedly priz'd by all Englishmen ever since and the (f) Idem num 30. Charta de Foresta and presently Charters were got drawn and the King sealed them and they were sent into all Counties two one of the Liberties and the other of the Forests Matth. Paris saith expresly That they (g) Ita quod chartae utrorumque Requm in nullo invâ—niuntur dissimiles were the same that King John had granted and so refers the Reader to peruse them in what he had writ on his Reign It is to me very strange that since so many Original Grants of the Kings of England and other ancienter Deeds being every where to be found among the ancient Evidences of many Noble and Gentlemens Families yet no where that I can learn any of these Original Charters are to be found except one at Lambeth as Mr. Pryn hath observed That upon Record being only an Exemplification in King Edward the First 's time Anno 1232. on the Nones of March the King called a Great Council to (h) Idem fol. 314. num 20.17 H. 3. Westminster where there met Magnates Angliae tam Laici quam Praelati The King required an Aid for the payment of his Debts contracted by his Expeditions beyond Sea To which Ralph Earl of Chester on behalf of the Nobility answered That the Earls Barons and Knights that held of the King in Capite being with the King personally in that Expedition and having fruitlesly spent their Money were poor so that of (i) Vnde Regi de Jure auxilium non debebant Idem num 30. The Tenents in Capite having personally served according to the Tenure of their Service deny the King Aid right they ow'd not Aid to the King And so my Author saith the Laics having asked leave all departed and the Prelates answered That many Bishops and Abbats being absent they desired respite till some other meeting which was appointed fifteen days after Easter By this we may observe who they were that had the power of giving consent or granting aid for if there had been any other Members of the Lay Order besides Earls Barons and Knights that held in Capite the Earls of Chester's Argument had been of no validity In the Statute of Merton (k) Pulâ—on Stat. p. 1. In one part it is said Our Lord the King granted by the Consent of his Magnates 20 H. 3. it is thus expressed Before William Archbishop of Canterbury and other his Bishops and Suffragans and before the greater part of the Earls and Barons of England there being assembled for the Coronation of the said King and Helioner the Queen about which they were called thus it was provided and granted as well of the foresaid Archbishop Bishops Earls and Barons as of the King himself and others I shall only cull out some few of the Great Councils in this Kings Reign wherein most fully are expressed the true Members of them or such wherein something remarkable was transacted Anno 1237. 21 H. 3. The King keeping his Christmas at Winchester sent his (l) Matt. Paris fol. 367. num 30. Misu c. scripta Râ—galia pracipiens omnibus ad Regnum Angliae spectantibus c. ut omnes sine omissiâ—ne conveairent Regni negotia tractaturt totum Regnum contingentia Royal Writs through all England commanding all that appertained to the Kingdom of England that is all who were to be Members of the great Council which my Author explains particularly thus viz. Archbishops Bishops Abbats Priors installed Earls and Barons that without failure they should meet at London on the Octaves of the Epiphany to treat of the Affairs of the Kingdom concerning the whole Kingdom then he adds That on the day of St. Hilary there met at London an (m) Insinita Nobilium multitudo viz. Regni totalis universitas infinite Multitude of the Nobles viz. The whole University of the Kingdom which were the Persons of those Orders before particularized Anno 1246. 30 H. 3. By the Kings (n) Edicto Regio convocata convenit ad Parliamentum generali â—â—mum â—otius Regni Anglicani totalis Nobilitas Idem p. 609. num 10. Edict was called to the most general Parliament saith Matthew Paris all the Nobility of the whole Kingdom of England viz. of the Prelates as well Abbats and Priors as Bishops also Earls and Barons and a few Pages after concerning the same Parliament he saith All the Magnates of the Kingdom met and the King himself first spake to the Bishops apart then to the Earls and Barons and last to the Abbats and Priors In this The word Parliament now used that which frequently in Matthew Paris is called Colloquium now he gives the Title of Parliament to from the French word parler to confer or speak together and we find what is meant also by totalis Nobilitas Anno 1253. 37 H. 3. By the (o) Tota edicto Regio convocata Angliae Nobilitas convenit de arduis Regni Negotiis simul cum Râ—ge tractatura Idem fol. 745. num 40. Kings Edict the Nobility of England being summoned met at London to treat together with the King of the arduous Affairs of the Kingdom and there were present with most of the Earls and Barons the Archbishop Boniface and almost all the Bishops of England In this great Council were the Tenents in Capite according to King John's Charter The King in this Parliament or Colloquium requires Money for an Expedition into the Holy Land but for fifteen days there were great Contests about it till the King de novo confirmed King John's Charters and a solemn Excommunication was agreed upon to be pronounced against the Infringers of it and my Author saith Rex Magnates Communitas Populi protestantur in the Presence of the Venerable Fathers c. That they never consented or do consent that any thing be added or altered in the Charters but plainly contradict it so 3 May (p) Pat. 37 H. 3. m. 13. Anno 1253. in Westminster-Hall the Exemplification passed the Seal of the King and other great Men. But it is principally to be considered what is expressed in the Patent * Praefatus Dominus Rex in prolatione praefatae sententiae omnes libertates consuetudines Regni sui Angliae usitatas dignitates Jura Coronae
Proclamation and shall return the names of the Knights Citizens and Burgesses Return of Indentures in certain Indentures betwixt the Sheriff and those that were present at the Election whether the persons elected were present or not c. The Returns to the Writs 1 H. 5. Who were Chusers of Burgesses shew the Election to be by common assent and consent of those present as that for Lestwythiel where 32 Electors are named and that for Surry hath only four but adds omnium aliorum fidelium ibidem existentium The Indenture for Sussex is in French and saith Les Gentilles homes Communes the Gentlemen and Commons had chosen Richard Sayvile c. The Sheriff of Bristol saith Coadunatis discretioribus magis sufficientibus Burgensibus ex assensu Johannis Clive Majoris Villae praedictae aliorum plurimorum existentium eligimus c. The elected were two Burgesses of Bristol Thomas Norton and John Leycester both for Knights for the County of Bristol and Burgesses for the Villa of Bristol and in another these are called Burgenses and Mercatores The next alteration that I find is after the Statute of the (b) Cl. 23 H. 6. m. 21. dorso The Knights to be resident in the County and the Electors to have at least 40 s. a year Lands 8 H. 6. c. 7. which agrees with that of 23 H. 6. that every Knight to be chosen within the Kingdom of England to come to the Parliament shall be chosen by such as live in the County whereof every one have a free Tenement to the value of Forty Shillings per annum beyond all Reprizes and that those who are elected be abiding and resident in the said County and the Sheriff have power upon Oath to examine the Electors what yearly Estate they have and that the Sheriff incur the penalty of 100 Marks for his false return and the Knights so returned lose their Wages There are several Precepts that command that at such Elections (c) Proclamari inhiberi facias ne aliqua persona tunc ibidem armata seu modo guerrino arraiata ad electionem illam accedat Rot. Parl. 8 H. 6. m. 13. num 18. None to come in an Hostile manner to elect no person come there Armed or arrayed in Warlike manner or do nor attempt any thing that may be in disturbance of the Kings Peace or the Election as particularly is expressed in the Writs 2 E. 3. m. 31. dorso and several others to be perused in the first part of Prynne's Brief Register a p. 27. ad 28 177 214. Cl. 5 E. 2. m. 22. dorso 18 H. 6. and several other places which were prohibited that Elections thereby might be made free That it may appear that the Elections in ancient times were not made by such as we now call Freeholders of forty Shillings a Year which now is established by Statute Law I think it not amiss to insert what I find of a particular usage in Yorkshire (d) Prynne's Brevia Parliamentaria Rediviva p. 152 153 154. Atturneys of Noblemen and Ladies in Yorkshire Electors whereâ—â— it appears by the first Indentures of the Elections and Returns of Knights for the County of York that the Atturnies of the Archbishop of York and of sundry Earls Lords Nobles and some Ladies who were annual Suitors to the County Court of Yorkshire were sole Electors of the Knights as appears by the Return 13 H. 4. upon the Writ of 12 H. 4. betwixt Edm. Sandford Sheriff on the one part and Will. Holgate Attorney of Ralph Earl of Westmorland Willâ— de Kyllington Atturney of Lucy Countess of Kent Will. Hesham Atturney of Pet. Lord de Mâ—lolacu William de Burton Atturney of William Lord de Roos Rob. Evedal Atturney of Ralph Baron of Graystock William do Heston Atturney of Alex. de Metham Knight Henry de Preston Atturney of Henry de Percy Knight chuse John de Ever Knight and Robert de Plompton Knight Also 2 H. 5. The Indenture is betwixt William de Harrington Knight Sheriff of Yorkshire and Robert Maulevereâ— Atturney of Henry Archbishop of York William Fencotes Atturney of Ralph Earl of Westmorland William Archer Atturney of John Earl Marshal and so the Atturnies of Hen. le Scrop Knight Lord of Masham of Peter de Mulolacu Alexander de Metham Robert Roos of Margaret which was Wife of Henry Vavasor Knight and of Henry Percy The like are found in the Eighth and Ninth of H. 5. and the 1 2 3 5 7 H 6. in all which the Atturnies only of Nobles Barons Lords Ladies and Knights who were Suitors made the Elections of the Knights of Yorkshire in the County Court and sealed the Indenture I have a French Letter of Atturney from the Lady Ross to that purpose concerning which if God give me Life I shall give an account in my Antiquities of Yorkshire This Method ceased before 25 H. 6. at which time the Return made by Robert Vghtred Sheriff of Yorkshire hath the Names of Forty two Gentlemen most of which are of very ancient Families and such as had great Estates then and so continue to have though I doubt not but as it is the Custom now the much lesser part of those present were only inserted as Parties to the Indentures However by the Community we may understand who elected were not like the Freeholders now The next thing we are to consider in the Writs of Summons to Parliament What the Knights Citizens and Burgesses were summoned for is what the Knights Citizens and Burgesses so elected were by the Writ authorized to do The first Writ (e) Ad consulendum consentiendum pro se communitate illa hiis quae Comites Barones Proceres praedicti concorditer ordinaverint in praemissis Cl. 22. E. 1. m. 6. dorso that we find for Election of Knights of Shires expresseth their convening to be To consult and consent for themselves and the Community to those things which the Earls Barons and foresaid Nobles unanimously should ordain in the premisses and the Writ to the Sheriff of Northumberland is ad aâ—diendum faciendum quod tunc ibidem plenius injungemus to hear and do what we shall then and there fullier enjoin In the Writ 25 (f) Cl. 25 e. 1. m. 6. dorso E. 1. the King intending to confirm the great Charter and Charter of the Forrest that he might levy the eighth part of all the Goods of his Lieges for his most urgent necessity against the French convenes the Parliament before Prince Edward his Son and the Knights are to meet to receive the said Charters facturi ulterius quod per dictum Filium nostrum ibidem fuerit ordinatum to do further what should be ordained by the Prince The Writ 25 E. 1. (g) Bundel num 1. Ad faciâ—ndum quod tunc de Communi Conciliâ— ordinabitur in praemissis expresseth that the Knights Citizens and Burgesses are to do what then shall be
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