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
Entries fol. 446 447. Trin. 1 Eliz. not in the Commons House as the Statutes and Precedents in the Law-Books resolve So that he saith how the Commons are now become sole Judges of all false Returns and Elections and that perlegem consuetudinem Parliamenti against all these Acts and Precedents let Sir Edward Coke and others resolve him and the Intelligent when they are able for late and arbitrary Priviledges are of no value but ancient usage and Law of our Parliaments and solid Reason which cannot be produced to justify these late Innovations and Extravagances The Statute of 8 H. 6. Rot. Parl. 8 H. 6. num 391. Petitions from the Commons to the King and Lords about Elections to prevent Tumults Uproars and Disorders in the Elections is grounded upon a Petition from the Commons that the King by advice and assent of the Lords Spiritual and Temporal would seclude all but Freeholders of forty Shillings a Year Lands above all Reprizals which was more than forty Pound a Year now being the twentieth part of a Knights Fee In 18 H. 6. Rot. Parl. 18 H. 6. m. 13. num 18. it was shewed to the King and the Lords Spiritual and Temporal That Gilbert Hore Sheriff of the County of Cambridge made no Return of Knights upon the King 's Writ Whereupon the King by Advice and Assent of the Lord Spiritual and Temporal ordered a new Writ So that then there were no other but the King that had the Power to cause new Elections with Advice and Consent of the Lords and so the King issued out new Writs Anno 29 H. 6. Nicholas Stynecle Knight Richard Bevel c. and other notable Esquires Gentlemen and other Men holding Fees who may expend 40 s. per Annum beyond Reprizes chose Robert Stonham and John Stynecle notable Esquires To this is annexed a Petition to the King our Gracious and Sovereign Lord Petition of Subjects to the King about Elections signed by 140 Gentlemen and Freeholders in behalf of those against one Henry Gimber who was not of Gentile Birth chosen by the number of 70. and the Under-Sheriff countenanced him and his Party and would not suffer these 140 to be examined about their Estates and give Voice thoue he might clearly yarely expend 20 Mark without that we should have offended the Peace of Yow our most doutye Soveraign Lord and so we departed for dread of the said Inconveniences that was likely to be done of Manslaughter and what the Sheriff will return in this behalf we can have no notice For which Causes we your true humble Suggets and Liegemen in our most lowly Wise beseeching you our most douty Sovereign Lord and King these Premisses may be considered for Your most Aid and our Freedom that the said Sheriff may be by Your great Highness streightly charged to return the said Robert Stoneham c. Thus far the Petition From this memorable Petition Mr. Prynne makes many observations the principal of which are that the King himself was to redress and rectify all false and undue Returns Secondly That this is the only clear Declaration and Record he hath met with complaining against a Sheriff giving of an Oath A Sheriffs denying the Poll petitioned against and Poll to some Freeholders and denying it to others Thirdly That when legal Electors cannot be sworn or polled without breach of the Peace or Manslaughter they may justly depart and ought to make such a complaint and declaration under their hands and Seals Fourthly That Ignoble persons who are not of Gentile birth ought not to be elected Knights of Shires Whoever desires to peruse more concerning the ancient usage in Elections may peruse Mr. Prynne's Plea for the Lords from page 371. to 416. his Second Part of Brief Register p. 118 119 139 140. and several other places I shall only add what Queen Eliz. Freeholders Grand Inquest p. 60. D' Ewes's Journal fol. 393. 18 Regni said in this case That she was sorry the Commons medled with chusing and returning Knights of the Shire for Norfolk it is to be presumed the like she might have said of any other County if there had been occasion a thing impertinent for the House to deal with and only belonging to the Office and Charge of the Lord Chancellor from whom the Writs issue and are returned Having thus given a brief account of the ancient Usage I come to the modern way which according to Mr. Hackwell Memorials c. 6. p. 20. The modern Use of Regulating Elections is that a general order hath usually been made in the beginning of the Session to Authorize the Speaker to give Warrant for new Writs in case of Death of any Member or of double Returns where the Party makes his choice openly in the House during that Session as it was ordered in the beginning of the Parliament 18 and 21 Jacobi primi and where such general Order is not made Writs have issued by Warrant of the Speaker by Vertue of special Order upon motion in the House and this Warrant is to be directed to the Clerk of the Crown in Chancery by order of Parliament 13 Nov. 1601. The Committee of Privileges 24 March 21 Jacobi making their Report a question was put Whether Sir Thomas Holland and Sir John Corbet were well elected Knights for Norfolk the House were divided and it was over-ruled by the House that the No's should go forth So that now the House of Commons are the sole Judges of the validity or invalidity of Elections and I suppose the King and Lords judging the House the competentest Persons to make enquiry and being willing to be eased of the trouble of such Matters as relate only to the Members of the House of Commons have rather by connivence than by any positive Ordinance in the House of Lords dismissed this to the House of Commons against which Mr. Prynne sadly complains Plea for the Lords p. 413. saying That since the Committees of Privileges have interposed in them their Proceedings have been very irregular and illegal in respect all the Witnesses they examine touching them are unsworn and give their Testimonies without Oath upon which they ground their Vote and for the most part very partially for which cause it is usually stiled the Committee of Affection In 35 Eliz. Sir Simon D' Ewes's Journal p. 494. In Queen Elizabeth's time Application made to the Chancellor or L. Keeper Sir Edward Coke being then Speaker he was ordered to attend the Lord Keeper to move his Lordship to direct a new Writ for chusing a Burgess for Southwark instead of Richard Hutton supposed to be unduly elected and another for allowing Sir George Carew who was duly elected but not returned to be Burgess of Gamelsford in Cornwal and a third for changing the name of John Dudley returned Burgess for New Town in the County of Southampton into the name of Thomas Dudley the Christened Name being mistaken But the L. Keeper would
with the Ensigns of their Offices some of the Nobles being appointed to carry the Sword and the Cap of Maintenance Three great Gilt Maces are carried See for this more fully Elsyng's Method of holding Parliaments p. 86. and all the Heralds attend in their Cloth of Gold Coats The two Archbishops and Bishops in their Robes sit upon Benches next the Wall on the Right-hand and the rest of the Great Officers that stand not by the State and all the Nobility in order upon the Bench on the Left-hand or on the Forms that stand in the middle where also sit the Judges Master of the Rolls Secretaries of State twelve Masters of Chancery Atturney General Solicitor General and Clerk of the Crown and the other Clerks Assistants which it is not my business exactly to describe The King being Seated when it 's his pleasure Leave given to the Commons to chuse their Speaker the House of Commons are sent for who standing bare at the Lords Bar attend the King's Speech and the Chancellor's and then have leave to chuse their Speaker whom commonly some of the Members of the House that are of the King's Privy-Council propose and if any one oppose it (u) Hackwel p. 127. he is to name another But I shall refer the curious to Mr. Elsyng and others that treat of this at large Sir Edward Coke (w) 4. Instit p. 8. saith That though the Commons are to chuse their Speaker yet seeing that after their choice the King may refuse him for avoiding expence of time and contestating about it the use is as in the Conge de eslier of a Bishop that the King by some of his Privy-Council as in this present Parliament was done by the Earl of Middleton on of his Majesty's Principal Secretaries doth name a discreet and learned Man whom the Commons elect for without their Election no Speaker can be appointed for them because he is their Mouth and trusted by them and so necessary as the House of Commons cannot sit without him So that if he be totally disabled by grievous Sickness another must be chosen in his place as he instanceth in Sir John Cheney 1 H. 4. and Sir John Tirrel Whether the two Houses sate together 15 H. 6. But whereas (x) 4. Instit c. 1. sect 2. he affirms that in antient time the two Houses sate together and the surest mark of the time of the division of them was when the House of Commons had a continual Speaker Mr. Prynne (y) P. 8 9. in his Animadversions hath made the contrary very clear by several Records wherein it 's expresly said they consulted apart as particularly in 6 E. 3. (z) Et les Chivalers des Countez Gents du Communs par eux mesmes Rot. Parl. 6 E. 3. num 6. at York the Prelates Earls Barons and great Men by themselves and the Knights of the Counties and the People of the Commons by themselves treated of the Business propounded to them Another (a) Freeholders Grand Inquest p. 19. saith That if Sir Edward means the Lords and Commons did sit and vote together in one Body few will believe it because the Commons never were wont to lose or forgo any of their Liberties or Priviledges and for them to stand now bare where they were used to sit and vote upon this Supposal is an alteration not imaginable to be indured by them and when we consider the sole Power of Judicature in the Lords and who the Burgesses were in old times it still makes it more improbable and it is to me a very remarkable thing that neither in History or Record any thing is to be found that will clear this doubt However it is certain that (b) Rot. Parl. 50 E. 3. num 8. 50 and 51 E. 3. the Commons had a Speaker and Sir Edward Coke (c) Coke Instit 4. p. 255. saith that the accustomed (d) Ancient Place saith Elsyng p. 84. place of that thrice worthy Assembly of the Knights Citizens and Burgesses of Parliament when held in Westminster was in the Chapter-house of the Abbat of Westminster and it continued so till the Statute of 1 Ed. 6. c. 14. which gave the King Colleges free Chappels c. whereby the King enjoyed the beautiful free Chappel of St. Stephen founded by King Stephen which had Lands and Revenues of the old yearly value of 1089 Pound ten Shillings five Pence since which time the Chappel thereof hath served for the House of Commons when Parliaments have been held at Westminster As Sir Edward Coke because he believed the two Houses sate together will not allow them to have had a Speaker before 50 E. 3. so on the other hand Mr. (e) Id. p. 123. Elsyng saith That the Commons ever had a Speaker none will doubt for their Consultation apart from the Lords though he thinks they often met and did sit together in one Room and then a Speaker was necessary to avoid Confusion of Speech and Argument But he brings no better Argument for it (f) Lib. Sti. Albani Bibl. Cotton fol. 207. than that Petrus de Mountfort (g) It should be 42 H. 3. That Peter Mountfort was not Speaker of the Commons House 44 H. 3. signed the Letter to Pope Alexander touching the recalling of Adomar elect Bishop of Winchester from Banishment Wherein they say if the King and the Regni Majores hoc volent Communitas tamâ—n ipsius in Angliam jam nullatenus sustineret and this was sealed by all the Lords and by Peter de Mountford vice totius Communitatis which he saith sheweth plainly they had a Speaker In answer to which I suppose it a great mistake to say that Petrus de Mountfort signed the Letter vice Communitatis which either ignorantly or willfully is Printed in Mr. Elsyng Comitatus for (h) Additament Math. Paris 1132 1133. Anno Dom. 1258. 42 H. 3. ult Edit Matthew Paris who relates the whole Story saith it was signed by ten Persons who were all great Barons vice totius Communitatis and the Preface of the Letter shews it was Communitas Comitum Procerum Magnatum aliorumque Regni Angliae and this aliorum can mean only the Milites which held by Military Service of the great Barons and the lesser Tenents in Capite which were no Representatives of the Commons as our Knights Citizens and Burgesses at this day are and the Inscription of the Popes Letter shews who he understood this Communitas to be when he superscribes it dilectis Filiis Nobilibus viris Consiliariis clarissimi in Christo Filii nostri illustris Regis Angliae ac caeteris Proceribus Magnatibus Regni Angliae Now the Persons that subscribed this are thus ranked by Matthew Paris R. de Clare Gloverniae Herefordiae S. de Monteforti Legriae E. Bigod Marescallus Angliae H. de Bohun Hertfordiae Essex W. Albemarle J. de Placeto Warewici Comitis H. Bigod Justiciarius Angliae P.
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
allow no alteration but in that of Dudley Which makes some observe Lawyer out-lawed p. 12. That if the House of Commons had then known they had any Power to mend the said Returns or punish the Offenders or Sir Edward Coke had known it had been Law he had never been sent on that Message So that what Authority the House hath it hath accrued since SECT 11. Concerning the House of Commons Censuring Imprisoning and Expelling their own Members AS to the Commons Imprisoning and Punishing their own Members The Reasons for this Privilege for words by them spoken or Misdemeanors committed in the House there may be some reason for it First Stat. 4. H. 8. c. 8. Coke 4. Instit p. 25. 31 H. 6. c. 26 27. because by Law they are not Punishable elsewhere for any rash indeliberate and inordinate Speeches in Parliament which do not amount to Treason Felony or Breach of the Peace which it is supposed none in that rightly constituted House will protect though done in the House of Commons begun in 1641. Secondly It is to be supposed that the Members upon their entring into that House unanimously agree for order sake that the lesser number should always submit to the greater So by such Consent and original Compact every single Member submitting himself to the rest he hath no such reason to complain although they had no such Authority for scienti volenti non fit Injuria provided that they exceed not the common Rules of Justice nor the Bounds of Established Laws for then no private Act can bind a Subject though made with his own free Consent as appears in Clark's Case against the Mayor and Burgesses of St. Albans Coke lib. 5. p. 64. The first Precedent I find that any Member of the House of Commons was complained and Petitioned against for Misdemeanors and put to answer before the King and Lords in Parliament Rot. Parl. 16. R. 2. num 6. and there judged and fined was 16 R. 2. the Wednesday after the Parliament began when Sir Philip Courtney Members of the House of Commons punished for Misdemeanour by the King and Lords returned one of the Knights for Devonshire came before the King in full Parliament and said that he understood how certain people had accused and slandered him to the King and Lords therefore prayed to be discharged of the said Imployment until the accusations c. were tryed and because his said Prayer seemed honest to the King and the Lords the King granted him his Request and discharged him in full Parliament Exact Abridgment p. 417. and the Monday following at the Instance and Prayer of the Commons the King granted that he should be restored and remitted to his Place In the Parliament 4 H. 4. the accusations against him being re-inforced the King and Lords adjudged that he should be bound to his good Behaviour and committed to the Tower for his Contempt By which saith Mr. Prynne it appears Plea for the Lords p. 386 387. That only the King and Lords in full Parliament can suspend or discharge any Knights or Commoners sitting in Parliament and have Power of restoring and re-admitting a suspended Member of the Commons House and he answers the Precedents that Sir Edward Coke brings 4 Instit p. 23 and 3 Inst p. 22. Vide pag. 296 297 299 344 371 372 373. and many others which would be tedious here to insert The first Precedent he finds The first Precedent of the House of Commons secluding their Members that the Commons began to seclude one another upon Pretence of undue Elections and Returns was in Queen Elizabeth's time when Thomas Lucy 8 Eliz. was removed out of the House for giving four Pound to the Mayor of Westbury to be chosen a Burgess and the Mayor fined and imprisoned and 23 Eliz. Mr. A. Hâ—ll for publishing the Conferences of the House and writing a Book to the dishonour of the House was committed to the Tower for six Months and fined five hundred Mark and expelled the House and in King Charles the First 's time this Power over their Fellow-Members was greatly improved in which how far Mr. Prynne then concurred I know not but after he was secluded he every where writes with great earnestness against this usage but whether with Judgment Law and Reason I shall leave others to judge only I think fit to insert some of his Invectives against the Proceedings of that unparallell'd house of Commons First he saith There can be no legal Trial or Judgment given in Parliament in Criminal Causes or others Id. p. 309. Mr. Prynne's Reasons against this Usage without Examination of Witnesses upon Oath as in all other Courts of Justice which the House of Commons cannot do Littleton sect 212. Coke ibid. Secondly That it is a Rule both of Law and Justice That no Man can be an Informer Prosecutor and Judge too of the persons prosecuted and informed against the Commons being in the nature of the Grand Inquest Coke 4. Inst p. 24. being summoned from all parts of the Kingdom to present Publick Grievances and Delinquents to the King and Peers for their Redress Plea for the Lords p. 373. Thirdly That all the objected Precedents are of very puny date within time of memory therefore unable to create a Law or Custom of Parliament or any right of sole Judicature in the House of Commons Fourthly Id. p. 387. That all these Precedents were made by the Commons themselves unfit Judges in their own Cases much less over one another being all of equal Authority so that in his opinion they could no more expel or eject any of their Members by their own Authority without the King and Lords concurrent consent See Legal Vindication p. 10. than one Justice of Peace Committeeman or Militia-man can unjustice or remove another since par in parem non habet potestatem neither in Ecclesiastical Civil Id. p. 373. Military or Domestick Affairs Fifthly That they are all against Law because coram non Judice he having throughout the whole Discourse endeavoured to prove That the Commons have no right or power of Judicature much less of sole Judicature in our Parliaments but only the King and Lords Sixthly That these Precedents are but few never judicially argued and rather connived at than approved by the King and Lords taken up with other more publick business therefore passing sub silentio they can make no Law or Right as is resolved in Long 5 E. 4. fol. 110. Cook 's four Rep. fol. 93 94. Slade's Case and six Rep. fol. 75. Drurie's Case Seventhly In the long Parliament of King Charles the First they began to seclude Projectors Exact Collections of Ordinances p. 541. to 558. Monopolists c. though duly elected then suspended and ejected such who were Royalists and adhered to the King then they proceeded to imprison and eject those Members Plea for the Lords p.
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
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
Regni nostri de Concilio nostro existentium providimus statuimus ordinavimus which (i) Pulton fol. 35. Anno 1279. 14. Nov. 7 E. 1. Pulton renders by the Advice of our Prelates Earls Barons and Subjects of our Kingdom being of our Council the King hath provided made and ordained whereas by Fideles is to be understood the Tenents in Capite The Statute of Acton Burnel or Statute Merchant 11 E. 1. according to Tottel was made by the (k) Ce Roy per luy per tout son Counsel ad ordain establâ—e Tottel fol. 49. 82. King himself and his whole Council That this was done in Parliament appears by the Statute of Merchants made in the 13th of the same King wherein it is said Our Lord the King by himself and by his Council at his (l) A son Parliament quâ—il â—â—â—â—t a Acton-Burnel c. Parliament which he held at Acton Burnel 11 Regni made and ordained these Establishments or as (m) Pulton fol. 36. Pulton hath it The King caused the Statute made by the King and his Council at Acton Burnel to be rehearsed and hath ordained and established Since the 49 of H. 3. to the 18 of Ed. 1. we find (n) Râ—t Pat. 20 E. 1. m. 15. no Writs for summoning of Knights Citizens and Burgesses but the 14 of June 18 Ed. 1. The King issued out the following Summons Rex c. The Form of Summons of Knights Citizens and Burgesses renewed at the Petition of the Nobles Two or three Knights to be chosen cum per Comites Barones quosdam alios de Proceribus Regni nostri nuper fuissemus super quibusdam specialiter requisiti tam cum ipsis quam cum aliis de communitatibus Regni illius colloquium habere volumus tractatum c. Tibi praecipimus quod duos vel tres de discretioribus ad laborandum potentioribus Militibus de Comitatu praedicto sine dilatione eligi eos ad nos c. venire facias c. cum plena potestate pro se communitate Comitatus praedicti ad consulendum consentiendum pro se communitate illa hiis quae Comites Barones Proceres praedicti tum duxerint concordanda vel concorditer ordinaverint in praemissis The English of which is Whereas we have been especially petitioned and requested by the Earls Barons and others of the great Men of our Kingdom concerning certain matters upon which we will have Conference and treat as well with themselves as with others of the Counties of that Kingdom We command thee that without delay thou makest to be chosen two or three of the most discreet and ablest Knights for dispatch of business of the Counties aforesaid and cause them to come to us c. with full Power for themselves and the whole Community of the County aforesaid to consult and consent for themselves and that Community to such things which the Earls Barons and great Men aforesaid shall think fit to agree upon From this we may observe That by Vertue of this Writ No Citizens and Burgesses but only Knights for Counties no Citizens or Burgesses could be chosen or sent to Parliament But only Knights for Counties Secondly The Scutage was granted in this Parliament as Doctor Brady hath noted fourteen days before the Writ for Election of Knights issued out and it is (o) Tottel's Stat. p. 85. apparent That the Statute of Westminster the Third was made the Eighth of July which was a week before they were to appear and consequently was made without them for the Preamble runs Dominus Rex in Parliamento suo apud Westmonasterium post Pascham Anno Regni sui 18. viz. in quindena S. Johannis Baptistae i.e. 8 July ad instantium Magnatum Regni sui concessit providit statuit From this Writ and the Variation of the following Writs and other Records the judicious Doctor Brady (p) Answer to Petyt fol. 151. notes That it was from the Kings Authority and at this time that the House of Commons came to be fixed and established in the present constant form it now is and hath been for many Kings Reigns and it doth appear that King Edward the First was not altogether confined to any certain number of Knights Citizens or Burgesses nor were several strict forms and usages now practised ever then thought of or some legal Niceties or Punctilioes now in use then judged of absolute Necessity The Statute of Quo (q) Pulton An. 1290. fol. 58. Warranto in the Eighteenth Year of Edward the First saith that the King of his special Grace and for the affection he beareth to his Prelates Earls and Barons and others of his Realm hath granted c. The Statute de (r) Idem Anno 1293. fol. 61. Malefactoribus in Parcis in the Twenty first Year of Edward the First saith Our Lord the King at his Parliament c. at the instance of the Nobles of the Realm hath granted c. Anno 1294. the King issues out his (s) Cl. 22 E. 1. m. 6. dorso Four Knights for a County Writs to cause two Knights out of every County to be chosen c. Dated the Eighteenth of October and the next day issues out Writs for other two to be chosen to meet at the same time and place Out of Mr. Ryley's (t) Fol. 241. Placita Parliamentorum it is clear that the Parliament which met on the Octaves of St. * Claus 28 E. 1. m. 3. dorso Hilary or the Twentieth of January in the Twenty eighth Year of Edward the First sate but eight days the Writ for the Commons Expences bearing date January the Thirtieth of the same Year and the Letter to the Pope signed by the Temporal Lords for themselves and the whole Community of the Kingdom of England is dated February the twelfth next following after the Commons had been dismissed fourteen days so that the Barons still continued to stile themselves the Community of England The Barons stay after the Commons dismissed and both Spiritual and Temporal Barons and others of the King's Council did stay and dispatch much Business after all others were dismissed as further appears in a (u) See Brady's Answer to Petyt fol. 152. Proclamation 21 March 33 Ed. 1. Wherein the King gives the Archbishops Bishops and other Prelates Earls and Barons Knights of Counties Citizens and Burgesses and other Persons of the Commons which by our Lord the King's Command came to this Parliament many Thanks for their coming and willeth that at present they return into their Counties so as they readily and without delay do come again at the time when they shall be remanded except the Bishops (w) Sauve les Evesques Countes Barons Justices autres qui sont du Conseil nostre Seigneur le Roy que ceux ne sen allient saunz especial conge du Roy. The King's Council prepare Laws Earls and
Barons Justices and others which are of the King's Council who may not depart without special leave of the King I shall not here enter into the enquiry how far the extent of the Power of the King's Council was in those days but it is very apparent that the King with advice of his Council proposed Laws and that others proposed by the Houses were considered by the King and Council as no doubt they are now considered before the King gives his Assent to Bills So in the Statute of the Definition of (x) Pulton An. 1304. fol. 72. Conspirators in the three and Thirtieth Year of King Edward the First it is said This Ordinance was accorded by the King and his Council in his Parliament Also in the Ordinance of (y) Idem Anno 1305. Enquests the Eighteenth of Sept. in the thirty third Year of Ed. the First It is said it is agreed and ordained by the King and all his Council that is his Parliament As to the special Prerogative of the King in giving the ultimate Character and fiat to the Laws every Act expresseth it so the Statute of (z) 18 Sept. 33 E. 1. Champerty the Statutes are called by the King Our Statutes and Our Lord the King hath commanded and in the Statute de Conjunctim feoffat it is said It is no new thing that among divers Establishments of Laws which we have ordained in our time so in the Ordinatio Forestae 34 Ed. 1. The King Ordains (a) Id. Anno 1306. fol. 73. We have ordained for our selves and our Heirs So in the Statute De asportatu Religiosorum 35 Ed. 1. it is said by the Council of his Earls Barons great Men and other Nobles of his Kingdom at his Parliament Our Lord the King hath Ordained and Enacted I shall only note first That in the Twenty eighth of this King those the (b) Cl. 28 E. 1. m. 3. dorso King had appointed being ready to give an account of the Perambulation of the Forests the King put a present stop to their report and his determination because the Prelates Earls Barons The Reason the King will determine nothing without advice in Parliament and the rest of the Magnates of the Kingdom in whose Presence his own and others Reasons should be propounded and heard and by whose Councils he intended to work especially seeing they were bound by Oath as well as himself to observe and maintain the Rights of the Kingdom and Crown were not then present and those were not summoned who should propound their Reasons so far as the matters concerned them and the King was not willing without their advice to put an end to the matters therefore he orders the Sheriffs to cause the two Knights that came to the last Parliament by his Precept now to come and the like for the Cities and Burroughs and if any were dead or infirm so that he could not come then to cause another to be chosen By which it appears that it was only from the King's Indulgence and that he might more deliberately resolve for the best advantage of his Subjects and for their satisfaction that he would have the advice of a fuller Assembly We may also further note from hence that it was in the King's Power to summon the same Knights Citizens and Burgesses without a new Choice except the Persons were dead or infirm Of the Parliaments in King Edward the Second's time IN this King's Reign these following Particulars are most observable In the Statute for (a) Pulton An. 1307. fol. 79. Knights 1 Regni it is said Our Lord the King hath granted In the Summons 5 Ed. 2. the Precept to the Sheriff The same Knights c. to come that were before is to cause to come to the Parliament to be held at Westminster those Knights Citizens and Burgesses in his Bailiwick which he caused to come lately to the present Parliament at London and which for certain causes went from the said Parliament (b) Cl. 5 E. 2. m. 26. dorso Vel alios ad hâ—â— idoneos loco ipsorum si ad hoc vacare non possunt or others fit for the Imployment if they cannot be at leisure Dated Octob. 11. In the sixth of Ed. 2. we have an example of the King 's (c) Cl. 6 E. 2. m. 27. dorso A Form of Prorogation proroguing the House of Commons in these Words Dominus Rex praecepit quod Milites Cives Burgenses qui ad Parliamentum Regis ibidem summonitum convenerunt pro Comitatibus Civitatibus Burgis Angliae ad propria remearent ita quod reverterentur ibidem in crastino S. Mich. prox futuro sub poena qua decet So that as they were commanded to return home so they were appointed a time to return under the Intimation of a Punishment The Preamble to the (d) Pulton An. 1315. fol. 80. The King with his Council revise Articles after the Parliament ended Articuli Cleri runs thus That by the Kings Progrenitors and himself at the Instance of the Prelates certain Articles were made and in the Parliament at Lincoln 9 Regni he caused them to be rehearsed before his Council and made certain answers to be corrected and to the residue of the Articles answers were made by him and his Council and so by way of Charter they are published at York 24 Nov. 10 Regni The Statute of (e) Id. 1316. fol. 83. Gavelet at London saith It is provided by our Lord the King and his Justices In the Statute de Terris (f) Id. Anno 1323. 17 E. 2. fol. 91. Templariorum it is said Great conference was had before the King himself in the presence of the Prelates Earls Barons Nobles and great Men of the Realm and others present whereupon the Greater part of the King's Council The King's Council and Justices affirm as well the Justices as other Lay-men being assembled the Justices affirmed precisely c. After the recital of Particulars the words are It is ordained and agreed in the same Parliament Anno 1326. the last of Ed. 2. There is a Prorogation of the (g) Claus 20 E. 2. m. 4. dorso A Prorogation before Meeting Parliament before meeting which runs thus That though the King had intended Colloquium Tractatum Conference and Treaty in the Quindene of St. Andrew by Isabel the Queen and Edward his eldest Son Custos of the Kingdom the King then being beyond Sea and the Prelats Proceres Magnates Regni and so had commanded two Knights of the Community of the County two Burgesses of every Burrough (h) Quia tamen quibusdam de causis necessariis utilibus praedict Parliamentum Tractatum usque in crast inum Epiphaniae prox jam futur c. duximus prorogandum yet for certain causes necessary and profitable he hath prorogued the said Parliament and Treaty unto the day after Epiphany c. Of the Parliaments in King Edward the Third's
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
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
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
in the Record Item mandatum est singâ—lis Vicecomitibus per Angliam quod venire faciant duos Milites delegalioribus probioribus discretioribus Militibus singulorum Comitatuum ad Regem London in forma praedicta Item in forma praedicta scribitur Civibus Ebor. Lincoln caeteris Burgis Angliae quod mittant in forma praedicta duos de discretioribus legalioribus probioribus tam Civibus quam Burgensibus suis and so to the Barons of the Cinque-Ports which runs thus Rex Baronibus Ballivis Portus sui de Sandwico Cum Praelati Nobiles Regni nostri tam pro negotio Liberationis Edwardi Primogeniti nostri quam pro aliis Communitatem Regni nostri tangentibus ad instans Parliamentum c. Vobis mandamus in fide dilectione quibus nobis tenemini firmiter injungentes omnibus aliis praetermissis mittatis ad nos ibidem 4 de legalioribus discertioribus Portus vestri c. Nobiscum cum praefatis Magnatibus Regni nostri tractatum super praemissis consilium impensuri From all which it is observable first Observations on the first Writ to the Barons of the Cinque-Ports that in all probability the Writs then issued to the Knights Citizens and Burgesses were the same in form and substance with those to the Spiritual and Temporal Lords and in those to the Sheriffs c. Secondly the Qualifications of those to be elected are limited Thirdly It doth not appear whether the Counties themselves or the Sheriffs alone were to elect Fourthly The Writs for electing Citizens and Burgesses were directed immediately to the Citizens and Burgesses themselves not to the Sheriffs of the Counties Lastly that no Writ issued to the Citizens of London their Liberties then being seized into the King's Hand and that York and Lincoln are the only Cities mentioned particularly in the Roll. The first Writs entred at large in the Rolls are those (e) Cl. 22 E. 1. m. 6. dorso 22 E. 1. wherein is expressed that the King intending a Colloquium Tractatum with his Barons and great Men he commands that the Sheriffs cause to be elected two Knights De diâ—â—retioribus ad laborandum potentioribus cum plena potestate pro se tota communitate Com. praedicti ad consulendum consâ—ntiendum pro se communitate illa Hiis quae Comites Barones Proceres praeâ—icti concorditer ordinaverint in praemissis c. of the more discreet and more able to take Pains c. to come to Westminster c. with full Power for themselves and the whole Community of the said County to consult and consent each for himself and the said Community to those things which the Earls Barons and Nobles aforesaid unanimously ordain in the Premisses so that for want of such like Power the Business remain not undone I shall now insert what Variations I find in the Writs of Summons promiscuosly whether to Knights Citizens or Burgesses unless there be some remarkable difference to be observed First The Qualifications in the Writs As to their Qualifications generally both Knights Citizens and Burgesses are to be de legalioribus discretioribus ad laborandum potentioribus In the Writ 25 E. 1. (f) Cl. 25 E. 1. m. 6. dorso it is probioribus legalioribus and some two or all of these Epithetes are generally used till (g) Cl. 22 E. 3. m. 7. dorso 22 E. 3. m. 7. dorso where it is expressed that the Knights be gladio cinctos ordinem militarem habentes non alios de qualibet Civitate de quolibet Burgo duos Burgos de aptioribus discretioribus probioribus fide dignis Militibus Civibus Burgensibus Cl. 24 E. 3. par 2. m. 3. dorso and in the Twenty fourth of E. 3. there is an addition and limitation No Maintainers of Sâ—its c. to be choâ—â—n Qui non sunt Placitorum aut querelarum manutentores aut ex hujusmodi quaestu viventes sed homines valentes bonae fidei publicum commodum diligentes eligi and the self-same Limitations are in the 25 28 and 29 E. 3. So that it was used so long as the King thought fit In (h) Cl. 26 E. 3. m. 14. dorso 26 Ed. 3. it is unum Militem de provectioribus discretioribus magis expertis Militibus and so for Citizens and Burgesses by which it appears the King desired not any under Age as now is allowed to be chosen In 31 Ed. 3. besides (i) Cl. 31 E. 3. m. 2. dorso the usual words de discretioribus probioribus there is added de elegantioribus personis eligi Which in no Writ else before or after is to be found In the 36 E. 3. (k) Cl. 36 E. 3. m. 16. dorso it is de melioribus validioribus Militibus c. That of the Forty fourth of (l) Cl. 44 E. 3. m. 12. dorso E. 3. runs Duos Milites gladiis cinctos in Armis Actibus Armorum magis probatos circumspectos discretos It appears by the Parliament Roll 46 (m) Nul home de Ley pursuont busoignes en la Courte de Roy ne Viscount pur le Temps que il est Viscount soient retournez ne acceptez Chevalers des Countees neque ves qui sont Gentz de Ley Visâ—ounts ore retournez au Parlement eient Gages Rot. Parl. 46 E. 3. cum 13. E. 3. That it was accorded and assented to in that Parliament and an Ordinance made That no Lawyer pursuing Business in the Court of the King nor any Sheriff while he was Sheriff should be returned or accepted Knights of the Counties and if any were so returned they should have no wages Therefore in the fourteenth Number of the said Roll it is thus expressed Mes voyet le Roy que Chevalers Serjaunts i. e. Esquires not Serjeants at Law des meulieur valeurs du paiis soiz retornez desore Chevalers en Parlement quils sount esluz en plein Counts That Knights and Esquires of greatest value in their Country should be chosen in the full County The very next Writ 47 E. 3. (n) Cl. 47 E. 3 m. 13 dorso To be Knights giâ—t with Swords and skilful in Arms. runs thus Duos Milites gladiis cinctos seâ— Armigeros which explains the word Serjaunts before as in that Age being reputed Servants to Knights as holding Lands in such a Tenure of them de dicto Com. digniores probiores in Actibus Armorum magis expertos discretos non alterius conditionis duos Cives Burgenses qui in navigo exercitio mercandisarum notitiam habeant meliorem eligi and then in the Close follows Nolumus autem quod tu seu aliquis alius Vicecomes Regni praedicti aut aliquis alteriâ—s conditionis quam superius specificatur aliqualiter sit electus and the last Clause
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
preserved in Peace Arms are necessary and they cannot be provided for without Taxes The Subjects receive the benefit of protection and by the care of the Government peaceable possession of their Houses Fields and Cattle Liberty of Trade dispensation of Justice and other great Emoluments by its guard and vigilance which require a numerous retinue of Officers of State Justice and War and Multitude of subordinate Ministers Something also must be allowed for the grandeur and port is necessary for the regulating it at home and abroad the maintaining Correspondence by Ambassadors the providing for defence against foreign Invasions and preserving Tranquillity at home in all which the Publick is concerned therefore the reason is very just and equitable that besides a standing Revenue for defraying these constant charges there should be subsidiary supplys upon emergencies adequate to the occasions As Cicero justly admonisheth Da operam ut omnes intelligant si salvi esse volunt necessitati esse parendum That the Subjects be made to understand that if they will be safe As the Subject is protected so he ought to support the Government they must yield to necessity this absolute necessity of parting with a portion of their Estates for securing the rest For though it be prudence in a private man justly and moderately to enrich himself yet craftily to withhold from the Publick and to defraud it of such parts of the Wealth as is by Law required is no sign of prudence saith Mr. Hobs as judiciously as any position he lyes down but want of knowledge of what is necessary Civil War for their own defence and covetousness to part with nothing they can hold makes this restive humour in many That the Kings of England have quitted that Soveraign badge of raising money upon the Subject by their own Impositions without consent of Parliament is manifest since Edward the First 's time (b) 27 E. 1. c. 5. Anno 1299. The Act for which runs thus For so much as divers People of our Realm are in fear that the Aids and Tasks which they have given us before time towards our Wars and other business of their own grant and good will howsoever they were made might turn to a Bondage to them and their Heirs because they might be at another time found in the Rolls and likewise for the prices taken throughout the Realm by our Ministers We have granted for us and our Heirs that we shall not draw such Aids Task nor Prices into a Custom for any thing that hath been done heretofore be it by Roll or any other Precedent that may be found (c) Cap. 6. The next is thus Moreover we have granted for us and our Heirs as well to Archbishops Bishops Abbats Priors and other folk of Holy Church as also to Earls Barons and to all the Commonalty of the Land that for no business from henceforth we shall take such manner of Aids Tasks nor Prices but by the common assent of the Realm and for the common profit thereof See for this the Charter of King John saving the ancient Aids and Prices due and accustomed These being not fully enough expressed the Statute of 34. E. 1. though as short in words as any to be found yet is of the largest extent and as liberal a Boon of Royal bounty as any People can boast of from their Prince It is thus No Tallage or Aid shall be taken or levied by Us or our Heirs in our Realm without the good will and assent of Archbishops Bishops Earls Barons Knights Burgesses and other Free-men of the Land Therefore all those who would enjoy the benefit of this Law must take care they preserve the Succession and the two Houses of Parliament (d) MS. Speech second Parl. Elâ—z an 1562. Inducements to supply the Sovereign The Lord Chancellor in Queen Elizabeth's time thus by the Queens command discourseth to the Houses If when any part of the natural Body hap to be in danger the Head and every part hasteth to the relief so how inconvenient and unnatural is it when danger is offered to the whole that the Head should take the whole care and bear the whole burthen and the Members remain uncareful and uncharged It is certain (e) Coke Instit 1.90 the Prince can make no War of any great concernment without the assistance of his Subjects Purses as well as Bodies unless all would voluntarily serve upon their own charges for that neither sudden dangers can be evaded nor Forces raised and all things necessary for them provided nor peace be long preserved when the Prince hath an empty Exchequer for Treasure is Firmamentum Belli Ornamentum Pacis A late (f) States of France Objection French Author concerning his own Country makes this objection That Princes having assigned for their usual charges of the Government Tribute and other Incomes they ought to be therewith contented and not without occasion raise new Taxes to the detriment of the Liege people and contrary to the intention of the Trust Yet he owns this ought to be soberly understood for a wise Physician applies those Remedies necessary without the Patient's leave and will force him though by cutting off a Limb to save his life So when there may happen a necessity urgent and unforeseen that either will suffer no delay or which ought not for some time to be divulged in such cases saith he the King without the States and whether they will or no may lay new Impositions and make all other necessary provisions by the absolute Power he hath to rule and preserve his State and Subjects he not being able to defend them without necessary Forces Therefore in such occasions it is to be supposed that with the Power of Government there is transferred to the Prince the Power to do that without which good Government cannot be executed but when there is not that kind of necessity the States are called Thus far my Author Since therefore (g) Coke 1. Insiit p. 161. qui diruit medium destruit finem he that takes away the necessary means for a King to preserve his people in uncommon events hazards the ruine of the People some have inferred that when dangers should be so sudden that there could not be time to convene a Parliament or that such a Parliament met should for some design deny the Prince Money then the Kings Prerogative might extend to the raising of Money and they instance in the Loans by Privy Seals exacted upon the Subjects even in Queen Elizabeth's time This indeed was the Plea for Ship-money and as the case was stated by King Charles the First Concerning Ship-Money all the Judges once subscribed their affirmative opinions though Mr. Justice Hutton and Crooke retracted after and with great learning the case was argued and Judgment given in favour of the King Yet he hoping by the yielding to the abolishing of it to have stopped the misery of a War consented to an
Oyer and Terminer Gaol-Delivery and Justices of Peace are determined by the Death of the Predecessor that made them Therefore the Statute of 25 Ed. 3. declares it to be Treason if any man kill the Chancellor The Judges represent the King's Person Treasurer or the Kings Justices of the one Bench or the other Justices in Eyre or Assise or any other Justices assigned to hear and determine being in their places doing their Offices The (f) Id. 3. Instit p. 18 140. reason whereof is assigned because all these represent the King 's Royal Person in his own Courts by his own Commission under the Great Seal in the very Execution of the Kings Royal Office viz. Administration of publick Justice to his People As therefore the King at his Coronation (g) Facies fieri in omnibus Justiciis tuis aequam rectam Justitiam discretionem in misericordia veritate secundum vires tuas taketh an Oath to make to be done in all his Judgments equal and right Justice and Discretion in Mercy and Truth according to his Power So he lays the Burthen thereof upon the Judges according to that of E. 3. for the Pleasure of God and quietness of our Subjects as to save our Conscience and keep our Oath by the assent of our great Men and other of our Council we have commanded our Justices that they shall from henceforth do even Law and Execution of right to all our Subjects Rich and Poor without having regard to any Person c. Therefore before this in (h) Nulli vendemus nulli negabimus aut differemus Justitiam vel Rectum c. 29. Magna Charta we find that the King will sell deny or defer Justice to none Yet from hence it doth not follow that if in the opinion of some the King doth not do Justice that therefore any Subject should conclude as the Master of the Hospitallers of Jerusalem in England at Clerkenwell Anno 1252. 37 H. 3. did The Story is thus told by (i) Hist p. 826 827. Edit prioris Matthew Paris The Master waiting a time when he might discourse with the King he complained of some Injuries done him The King loseth not his Authority tho' he do not Justice and shewed the King some Charters of Protection of himself and his Ancestors The King answered with an Oath and in Wrath You Prelates and Religious especially Templars and Hospitallers have so many Liberties and Charters that they make you proud c. Therefore they ought prudently to be revoked which imprudently have been granted to you for even the Pope oftentimes revokes his Grants with a non obstante and the King told him so he would do To all which the (k) Cui Magister Hospitalis respondit alacâ—iter vultu elevato Quid est quod diciâ— Domine Rex Absit ut in ore tuo recitetur hoc verbum illepidum absurdum Quamdia Justitiam observas Rex esse poteris quam cito bane infregeris Rex esse desines Master saith Matt. Paris answered chearfully and with a lifted up Countenance What is this you say my Lord the King far be it from you to speak so absurd a thing As long as you observe Justice you may be a King and as soon as ever you break this you cease to be a King Thus he would make Dominion founded in Justice as others in Grace But I need not add many Authorities upon this Head for by the universal Suffrage of the profound Lawyers the Kings of England solely nominate create and (l) Dyer fol. 56. appoint all the Judges of the great Courts at Westminister and may remove them at their Pleasure and alone make (m) Davis 45. and appoint Justices of Oyer and Terminer of Gaol-delivery Justices of the Peace Sheriffs and the like Officers and (n) Coke 4. Inst n. 4. 14. 114. 117. remove them when they see Cause and the (o) Bulstrod 3. 296. 1 H. 7. c. 25. Prerogative of making Judges cannot be given or claimed by a Subject The King hath also Power to name create make (p) Sheppard's Grand Abridgment part 3. p. 53. and remove the great Officers Ecclesiastical and Civil by Sea and Land as Archbishops Bishops by way I suppose of Conge deslier The King 's placing and displacing all Great Officers and Translation Lord Chancellor or Keeper Lord Treasurer Lord President Lord Privy-Seal Lord High Steward Lord Admiral Lord High Constable Earl Marshal Lord Chamberlain Privy Counsellors the Marshal or Steward of the Kings House and the rest of the Officers of his Houshold Master of the Horse Officers of the Mint of the Castles Port-Towns and Shipping Lord Lieutenants and many more too tedious to be named So that either mediately or immediately all Officers are by the Kings appointment which is not only a manifest badge but a necessary appurtenance of the Soveraignty SECT 2 The Court of High-Steward THE Kings Courts have been various The Court of the High-Steward as that of the Privy-Council called the Council-Board of which I have spoke before The Court of the High-Steward of England intituled Placita Coronae coram Seneschallo Angliae disused since the Reign of Henry the Fourth and now a Lord High-Steward is only appointed pro hac vice with limitations for the Tryals of some Peers of the Kingdom upon Inditement His Power anciently was (q) Coke 4 Inst c. 4. Supervidere regulare sub Rege immediate post Regem totum Regnum Angliae omnes Ministros Legum infra idem Regnum temporibus Pacis Guerrarum The next Court which is now totally suppressed was the Honourable Court of Star-Chamber The Star-chamber Court of ancient time stiled Coram Rege Concilio suo coram Rege Concilio suo in Camera stellata of which I shall have occasion to write something in the Chapter below SECT 3 The Court of King's-Bench AS to the great and standing Courts The King's-Bench the first of them that is mentioned in Ancient Writers is that of the Kings Bench coram Rege This (r) Rex illarum Curiarum habet unam propriam sicut Aulam Regiam Justiciarios Capitales qui proprias Causas Regias terminant Bracton saith was the Kings proper Court called the Kings Hall and had for Judges in it Chief-Justices which determined the Kings proper Causes c. The same (s) Justiciariorum quidam sunt Capitales generales perpâ—tui majores a latere Regis residâ—ates qui emnium aliorum corrigere tenentur injurias errores Lib. 3. c. 7. fol. 108 b. Author speaking of the Justices of this Court saith That some of them were Capital General perpetual and the greater sitting by the Kings side which were to correct the injuries and errors of all others Fleta in describing this Court saith My Lord Coke gives this account That the King in this Court hath his Justiciaries as well Knights as Clergy-men as
the Kings Lieutenants in England as the Lords Justices were sometimes I suppose in Ireland before (t) Coram quibus non alibi nisi coram semetipso Concilio suo vel Aâ—ditoribus specialibus falsa Judicia Errores Justiciariorum reâ—ertuntur corriguntur whom and no where else unless before the King himself and his Council or special Commissioners false Judgments and Errors of Justices are reversed and corrected and there are determined Breeves of Appeals and other Breeves upon Criminal Actions and Injuries against the Peace of the King And Bracton saith That in Criminal Matters if they touched the King's Person as Treason they were tried coram Rege if concerning private matters then before the Justices only By many Records it appears The Kings of England used to fit in this Court that the King sometimes sate in this Court and that sometimes the King ordered it to follow his Court as particularly in 28 E. 1. (u) Cap. 5. it was established in the Statute of Articuli super Chartas Robert de Bruis was the first Capitalis Justiciarius ad placita coram Rege 8 March (w) Pat. 52. H. 3. m. 24. 52 H. 3. the Title of Justiciarius Angliae of whose great Power the learned (x) Glossary Spelman and (y) Sacred Laws Sir Henry Spelman about the Office of the Chief-Justice of England Mr. White have given an account having an end in Phillip Basset who was advanced to that place 45 H. 3. Who desires further satisfaction may consult Mr. Crompton's Jurisdiction des Courts c. 4. Sir Ed. Coke Sir William Dugdale Mr. Prynne and the Authors they cite who are many and learned and do at large treat of its Jurisdiction and the Practice in it which are foreign to my Design SECT 4. The Court of Common-Pleas The Common-Pleas THis Court of Common-Pleas appears to be as antient as Henry the First 's time for in his Charter to the (z) Coke's Reports part 8. Abbat of B. he grants Connusance of all Pleas so that neither the Justices of the one Bench or of the other or Justices of Assize should meddle Bracton (a) Cognoscunt de omnibus Placitis de quibus Authoritatem habent cognoscendi sine Warranto Jurisdictionem non habent nec Coercionem Lib. 3. c. 10. fol. 105 b. saith This Court had Cognizance of all Pleas of which Authority is given them without warrant they neither having Jurisdiction or Coercion Therefore Sir Edward Coke saith That regularly this Court cannot hold any Common-Plea in any Action real personal or mixt but by Writ out of Chancery returnable in this Court This Court proper for Pleas betwixt Party and Party Those that treat of this Court agree That it was for hearing and determining all Controversies in matters Civil betwixt Party and Party called the Common-Pleas as contradistinct from Pleas of the Crown and was anciently kept in the Kings own Palace Not to follow the King 's Court. In Magna Charta it is granted That the Common-Pleas shall not follow the Kings Court but shall be held in a certain place The Exchequer having been the place where these Causes were heard till (b) Articuli super Chartas cap. 4. 28 E. 1. that by Statute it was provided that no Common-Plea shall from henceforth be held in the Exchequer contrary to the form of the Great Charter The first who had the Appellation of Capitalis Justiciarius in this Court according to Sir William Dugdale was Gilbert de Preston who by that Title had his Livery of Robes (c) Liberat. 1 E. 1. m. 4. 1 E. 1. The number of the Justices (d) See Sir William Dugdale's Origines Juridiciales p. 39 b. The number of the Justices varied 3 E. 2. were Six 14 E. 3. they were Nine the latter end of Henry the Fourth and all the Reign of Henry the Seventh they were but Four Those that would be satisfied about the Jurisdiction of this Court may have recourse to Mr. Richard Crompton's Jurisdiction of Courts c. 7. fol. 91. the Year-Book quoted in Ash his Promptuary Sir Henry Spelman's Glossary tit Bancus Capitalis Justiciar de Banco Communi p. 417. Sir W. Dugdale's Origines Juridiciales Prynne's Animadversion p. 52. and many other good Authors cited by them SECT 5. Court of Chancery THE Court of Chancery in some Writers is placed the first Coâ—rt of Chancery in others as I have placed it Although it is true what Sir Edward (e) Sir Edw. Coke's Arguments for the Antiquity of the Chancery Coke saith That Kings had their Chancellors in the Saxon times indeed he adds the Brittish also of which little can be known yet I dare not avouch with him that the Court of Chancery was then as now the only Court out of which Original Writs do issue it is true that to the Charter of King (f) Spehran Tom. 1. Concil p. 631. Edward the Confessor maâ—e to the Abbat of Westminster amongst the Witnesses it is said Ego Swardus (g) Swyerg trius in Spelman Notarius ad vicem Reynbaldi Regiae dignitatis Cancellarii hanc cartam scripsi subscripsi So (h) Glossary fol. 106. Adulph is accounted Chancellor to King Edgar and Tâ—rketil to King Edred and King Edmund and Wolsine to King Athelstan and that the Chancellor had a Court may be presumed from what is found in the Book of Ely writ as it is supposed about King Stephen's time that King Aethelred who Reigned about Anno 978. appointed and granted Answer Canceliarius qui vel Regum praecepta aut Acta Judicum scribit Spelm. Gloss fol. 104. that the Ch. of Ely then and ever after in the Kings Court should have the dignity of the Chancery which albeit as Sir Edward Coke saith it was void in Law to grant the Chancellourship of England in Succession yet it proveth that then there was a Court of Chancery As to the first it is apparent that the Chancellor then had the power of composing the Charters and before Seals were in use might also subscribe with the Sign of the Cross as other of the Kings Officers did but this doth not prove what kind of Court he was made Judge of for there the Notary in the Chancellors room signs last and in the (i) Tom. 1. p. 486. Councils of Sir Henry Spelman's Edition I find Adulph stiled Herefordensis (k) Id. p. 489. Ecclesiae Catascapus signing last of the Abbats See Spelman Glossar p. 106. As to the Book of Ely I know not how to understand that the Church should have any dignity of Chancellorship in the Kings Court and if it be meant of the Bishop of that See only it might possibly be meant to be the principal Chirographer or drawer of the Kings Charters As to what is found in the Mirror it is of no great validity being writ according to the then custom of the Age wherein the Author