===== PAGE seq 1 ===== 32101 071951428 RECAP ===== PAGE seq 2 ===== 23148 70 : 2168 404 Tibrary of the 763 323 College of Dew Jersey . Purchased in S L 24.1511.25 ===== PAGE seq 3 ===== ===== PAGE seq 4 ===== ره 23 ===== PAGE seq 5 ===== lo Luckside THE MANNER OF HOLDING PARLIAMENTS IN ENGLAND . BY HENRY ELSYNGE , CLER . PARL . Corrected and Enlarged from the AUTHOR's Original Manufcript . LONDON : PRINTED BY RICHARDSON AND CLARK ; FOR THO . PAYNE , AT THE MEWS GATE . M DCC LXVIII . ===== PAGE seq 6 ===== ===== PAGE seq 7 ===== PREFACE . HE following treatise was first printed in 1660 , feveral years after the death of the author , and evidently from a very incorrect copy . However , fuch as it was , the Public received it so favourably , that it has Since been reprinted more than once , and to say the truth , with all its faults and defects , it had a merit , which very few books upon the Conftitution and forms of Parliament have , that it appeared to be written with a knowledge of the fubject . ( Acpp ) 7570 .5 .323 The 31514 ===== PAGE seq 8 ===== vi PREFACE . The plan , as far as it goes , is regular and well diſpoſed ; the materials the best * , chiefly the records of Parlia- ment ; and the arguments and conclu- fions drawn from them are , in general , clear and judicious . The misfortune has only hitherto been , that , in all the edi- tions , the records which are quoted , are So wretchedly mangled as to be unintelli- gible , and the references to those which are not quoted in terms , are for the most part fo erroneous , that no reliance can be had upon any of them ; besides that * I muſt except the " old MS . Modus tenendi " Parliamentum , " which is quoted much too of- ten . It is true that Sir Edward Coke was fond of quoting the ſame treatiſe as the highest authority ; but Mr. Prynne , in his animadverfions on the firſt chapter of the fourth Inſtitute , has demonſtrated it to be a forgery , and of no authority at all . Mr. Selden had before declared the ſame opinion , Titles of Honor , p . 610-614 . the ===== PAGE seq 9 ===== PREFACE . vil the whole reasoning of the author is fre quently obfcured and destroyed , by a wrong punctuation , mistakes of one word for another , omiſſions of words , and of ten of fentences . It is not long fince , accidentally looking over the catalogue of the Harleian manu- Scripts , I discovered that the * original work , in Mr. Elſynge's own hand- writing , * HARL . MSS . n . 1342. It is plainly the au- thor's original draught , with numberleſs eraſements and interlineations made by himself ; and there are directions throughout , in the margin , to the clerk who was to copy it fair . By a date in the firſt page it appears to have been begun in " December 1624 ; " and at the end is the following note : " Here I will end this eight and last chapter of " this first Booke of Modus tenendi Parliamentum , " which I collected for mine owne inſtruction and " learninge , with noe intent to publiſhe the fame unto any . 3 Maii 1625. H. ELSYNGE , Cler . " Parl . " There follows in the manufcript a rough a2 ſketch 1 ===== PAGE seq 10 ===== vili PREFACE . writing , was in the Britiſh Muſeum ; and I foon after took an opportunity of examining it . The comparison of a few of the most corrupted paſſages convinced me , that a collation of the whole would not only correct , but confiderably improve and enlarge , the printed book . The task was not a heavy one , and therefore I under- took fketch of the contents of the second Book , with this marginal note - " Begunn . but God knows when " I ſhall finiſh this booke . Sept. 1625. " The title of Chap . I. of this intended ſecond book ſtands thus- " Warre and Peace - begun by me , en- 66 larged by Sir Rob . Cotton . " Where , I prefume , he refers to a treatiſe which is printed among Cot- toni Posthuma , under this title , " That the kings " of England , have been pleaſed uſually to confult " with their peers in the great councel , and com- “ mons in Parliament , of marriage , peace , and " war . " I have found no reaſon to think that Mr. Elfynge made any further progreſs in this ſe- cond book . From ===== PAGE seq 11 ===== PREFACE . ix took it for my own fatisfaction , at first ; though , as I advanced , I could not help feeling for the hard fate of a man of fenfe and learning fo injuriously traduced to pofterity by the negligence of copyists , and wishing that , some time or other , bis fame might be vindicated by a nero From what has been ſaid it is clear , that A. WOOD , and his tranfcriber in the BIOGRAPHIA BRITANNICA , Art . ELSYNGE , are mistaken in attributing the printed treatiſe to Mr. Elfynge's fon , who was clerk of the houſe of commons in the time of Charles the First . The whole was certainly written by the father . Nor do I believe they have any better foundation for attributing to the ſame Mr. Elfynge , the younger , " A tract con- " cerning proceedings in Parliament , " which , they ſay , was never publiſhed , but bequeathed in ma- nuſcript by Sir Matthew Hale to the library of Lincoln's Inn . The only manuſcript , in the cata- logue of that library , with the name of Elfynge , is n . 85 , and that , upon inſpection , I found to be a copy of this work of the father . a3 edition . ===== PAGE seq 12 ===== X PREFAАСЕ . edition . However I doubt whether I should myself , at that time , have under- taken an edition , if , upon ſhewing the collated copy to some very refpectable per- Sons , ( too refpectable to be named upon So flight an occafion ) they had not ex- preſſed a wish , which I confidered as a command , that the publication should not be unneceffarily delayed . I must take notice , that the “ pro- " ceedings in the case of the earl of " Arundel , I Car . I. " ( page 192 to 242. ) are not in the Harleian manu- fcript . Indeed the cafe did not happen till the year after the manuscript ap- pears ( by the note above - mentioned at the end of it ) to have been finiſhed . There can be no doubt , however , that this cafe was added by Mr. Elſynge himself , and , though it breaks in a little upon his me- thod , it makes a valuable acceſſion to his book , ===== PAGE seq 13 ===== PREFACE . xi book . It has now been compared with a copy of the Journal of the House of Lords , from which it is almoſt wholly extracted , and by that means a great number of very confiderable errors , which are in all the former editions , has been corrected in this . 9 May 1768 , ; 24 THE ===== PAGE seq 14 ===== THE TABLE . Sect . CHAP . I. OF SUMMONS . 1. WHO were antiently summoned to Parliament , Page 3 2. Whether the fummons were antientiy by one general writ , or by parti- cular writs , 3. The antient form of the writ , 4 10 4. Of the title of the party fummoned , 14 5. The form of the mandamus , 19 6. What ===== PAGE seq 15 ===== The TABLE . XIII Sect . 6. What they are commanded to do , Page 21 7. By what warrant the writs of Summons were made , The form of the warrant , 8. Of the right of the nobility Summoned , Page 28 30 to be 33 9. Of omiſſions in the fummons , 51 10. Of omiſſions in the fummons to the great council , 62 II . Of omiffions of fons of peers , 64 12. Of omiffion of the husband of an beir female , 65 13. The form of the feveral writs of Summons at this day , 67 14. The form of the antient writ for the election of the knights , citi- zens , and burgeſſes , 70 15. Additions to the antient writ of election , 72 16. Whe ===== PAGE seq 16 ===== xiv The TABLE . Sect . 16. Who are not to be chofen , Page 78 17. Who are to be exempted ( if they please ) from ferving in the house of commons , 79 CHAP . II . OF APPEARANCE . 1. The appearance the first day of the Parliament , 86 2. When the lords appear in their robes , 92 CHAP . ===== PAGE seq 17 ===== The TABLE . XV CHAP . III . LOCUS ET MODUS SEDENDI . Sect . I. Whether the lords and commons did antiently fit in one room together , Page 101 2. Whether the commons did antiently fit at conference with the lords , 105 3. The manner of fitting in Parliament at this day , 106 CHAP . IV . PARLIAMENT DAYS . I. On what days the Parliament may not fit . 113 CHAP . ===== PAGE seq 18 ===== xvi The TABLE . Sect . CHAP . V. OF PROXIES . : 1. In what cafes proxies were made , Page 119 120 The antient form of a proxy , 2. In what cafes proxies were made without the king's licence , 121 3. The king's licence to be abfent , and to make proxies , 124 4. Unto whom proxies may be made , 128 The form of the king's licence to be abfent , 132 Another form of the king's licence , 133 The form of the proxy at this day , 135 CHAP . ===== PAGE seq 19 ===== The TABLE . xvii CHAP . VI . DE SUMMONITIONIS CAUSA . Sect . 1. By whom the cause of fummons ought to be declared , Page 137 2. Upon what occafions the cause of fum- mons hath been declared by the lord chief justice , tempore E. 3. though the chancellor were present , 139 3. Whether he that antiently declared the cause of fummons , not being the chancellor , were speaker alſo all the Parliament , though the chancellor was present ? 144 4. Whether be that antiently declared the cause of fummons ( not being the chancellor ) had any commiſſion ( as now ) under the seal or no ? 148 5. The ===== PAGE seq 20 ===== xviii The TABLE . Sect . 5. The manner how the cause of fum mons is declared , when the king is present in perſon , and how when bis majesty is represented by com- miſſion , Page 149 The commiſſion to fupply the lord chancellor's place , 152 CHAP . VII . PROLOCUTOR DOMUS COMMUNIS . 1. The commons ever had a speaker , 155 2. The election of the Speaker , 159 3. The prefentment of the Speaker , 164 4. The speaker's excuse , 165 5. The speaker's protestation , 168 6. His speech antiently and at this day , : 170 7. That ===== PAGE seq 21 ===== The TABLE . xix Sect . 7. That the commons ever enjoyed those privileges which the speaker now petitions for , though never desired by any of the antient Speakers un- til after the fixth year of King Hen . 8 . Page 175 1. Acceſs unto his majesty , ibid . 2. Freedom of Speech , 176 184 3. Freedom from arrests , Concerning a commitment of a peer of this realm in the time of Parlia- ment , viz . the earl of Arundel , an . I Caroli , 192 8. How the party arrested bath been Set at liberty , 243 9. In what cafes a new speaker bath been chofen , Page 254 The commiſſion , an . 8 Eliz . for choice of a new speaker , 258 CHAP ===== PAGE seq 22 ===== XX The TABLE . CHAP . VIII . RECEIVERS AND TRIERS OF Sect . PETITIONS . 1. By whom receivers and triers of pe- titions were appointed , and when , Page 262 2. Who were appointed receivers , and who triers , 270 3. Within what time the petitions were to be delivered , 272 4. What kind of petitions they were , 273 5. How the petitions were answered , 275 6. Petitions indorsed coram rege , 288 7. Of petitions indorfed per auctorita- tem Parliamenti , 294 MODUS 3 ===== PAGE seq 23 ===== MODUS ΤΕΝΕNDI PARLIAMENTUM . BOOK I. : A ===== PAGE seq 24 ===== ===== PAGE seq 25 ===== MODUS TENENDI PARLIAMENTUM . CHAP . I. OF SUMMONS . $ 1 . Who were antiently summoned to A Parliament . RCHBISHOPS and bishops , ra- tione epifcopalis dignitatis & nura . te- All abbots and priors , which held by earl- dom or a barony , ratione tenure . All earls and barons , by reaſon of their inheritable nobility and tenure ; and their peers alſo , ratione tenure . A 2 The ===== PAGE seq 26 ===== 4 Of Summons . The judges , the barons of the exche- quer , the king's privy counsellors , and his learned council , were fummoned alſo , but neque tenure , neque dignitatis ratione ; and if theſe could not appear , they made no proxies , for they had no voice .. The knights of the ſhire , the barons of the Cinque Ports , the citizens and bur- geſſes , were ever elected and ſent to the Parliament . The officers , as the clerk of the crown , the clerk of the Parliament , and the gen- tleman - uſher , attended ratione officii without any fummons . § 2. Whether the summons were anti- ently by one general writ or particu- lar writs . It appears in that antient manufcript , Modus tenendi Parliamentum , that archbi- ſhops , abbots , and priors , which hold per comitivam vel baroniam , fummoneri debent : and that all earls , barons , and their peers , Summoneri debent . Minores ===== PAGE seq 27 ===== Of Summons . 5 Minores clerici , nec minores laici , non fum- moneri debent ; fed fi eorum præfentia necef faria fuerit , rex folebat talibus brevia fua mittere , rogando quod Parliamentum fuum intereſſent . From hence it may be gathered , that in thoſe times , viz . before the Conqueft , the lords ſpiritual and temporal , and the peers , were fummoned to Parliament by one gene- ral ſummons ; and that the others , who were neither lords nor peers , had particular writs . But it is unlikely that William the Conqueror did ſend out ſuch a general fum- mons to the lords ; for how could the an- tient baronage , who were tranſlated by his conquest to the Normans , take notice there- of , their lands and honours being ſeized by the king ? It is probable that he did firſt inftitute particular writs of ſummons to his Norman ( new created ) lords , and to ſuch English ( if any ) as he continued in that de- gree of honour . Vide Mat . Paris , p . 247 , in charta regis Johannis . Submoneri faciemus omnes archiepifcopos , epifcopos , & c . comi- A 3 tes ===== PAGE seq 28 ===== 6 Of Summons . * tes & majores barones regni noftri fingulatim per literas noftras , & c . But as touching the peers , the fummons in his time unto them continued as before ; for it follows in the ſame charter , Et præte- rea faciemus fummoneri in generali per vice- comites & ballivos nostros omnes alios , qui in capite tenent de nobis , & c . By theſe tenants in capite of the king , I underſtand thoſe only who held land in ca- pite of the king ad valentiam unius comita- tus , vel baronie integra , as it is in that an- tient manufcript , Modus tenendi Parliamen- tum ; and they are there named peers . Divers learned heralds , not knowing any difference between the lords and their peers , have run into theſe errors , viz . Firſt , That all heretofore came to Parlia- ment who had lands of an intire county or barony ; and that Henry the Third , having fmarted by fuch a confuſed company of ba- rons , did ( after the battle of Evesham ) firſt ordain , that thoſe earls and barons , to whom he directed his writs , ſhould only come to Parlia ===== PAGE seq 29 ===== Of Summons . 7 Parliament ; for which they vouch no re- cord , but only the firſt writ of fummons ( extant ) an . 49 H. 3. 14 Decembris , and af- firm the fame to be after the battle of Eve- sham , and that this was the first time that barons were called by writ : Secondly , That the writ of fummons did create a baron : Thirdly , That the firſt writ did ennoble the perfon only ſo created ; and if the fon was alſo ſummoned , then the blood was ennobled : Not obſerving the difference between peers and barons ; the one being omitted ad libitum regis ; the other never ( if once created ) being of full age , within the land , and rectus in curia ; as ſhall be declared hereafter in this chapter . The firſt of theſe is easily refuted and fa- tisfied , for the practice appears to be other- wife ( touching the earls and barons ) in the time of king John , as by the aforesaid char- ter of Matthew Paris ; A 4 And ===== PAGE seq 30 ===== 8 Of Summons . And the very date of the writs which are vouched proves , that the practice was fo alſo in H. 3d's time , who began his reign the 19th of October , and the writs of fum- mons bear date in December , and the battle of Evesham was fought in August . So the lords had particular writs of ſummons be- fore that battle of Evesham . Happely this king did firſt ordain that no peer ſhould come to Parliament , unleſs ſuch as had par- ticular writs of fummons ; and therefore the heralds are to be excused ; for the peers once fummoned have been reputed lords of Parliament , and the peers have been anti- ently ſtiled barons . Vide Mr. Selden in his Titles of Honour : that Matthew Paris faith , that Hen . 3. did number 250 of his barons , who were , as I conceive , barones minores , or peers , and not those who were barons by inheritance , whom Matthew Paris in the other place ſtiles barones majores ; for they never attained to that number . Alſo by this word ( peers ) are understood all the lords ſpiritual and temporal in the two Parlia- ments ===== PAGE seq 31 ===== Of Summons . 9 : ments of 15 E. 2. & 1 E. 3. touching the banishment of the Spencers ; ſo that the he- ralds might easily be deceived therein ; eſpe- cially , the writs unto barons and peers being all one , and they all ranked together pro- miſcuouſly in the roll of fummons , and ſome peers placed there above antient ba- rons . But of this , viz . that peers were fum- moned , and omitted again ad libitum regis ; and that barons were ever created by invefti- ture of robes ; and that the writ only did not create a baron ; and that the firſt writ did ennoble both the perſon and blood of him that was created ; more ſhall be faid here- after in this chapter , in the title Of omif- fions . Here I will only remember that this word ( baron ) was antiently a general name to all thoſe that had power of judicature , as well as to the Parliament barons . The freeholders in a court baron were antiently named barones ; and that court ſtiled curia baronum J. S. in reſpect of them , and not curia baronis J. S. as ===== PAGE seq 32 ===== 10 Of Summons . as now , in reſpect of the lord of the ma- nor ; and the aldermen of London were an- tiently ſo named ; and they of the Cinque Ports retain it to this day , and ſo do the barons of the Exchequer , who were firſt called fagi barones , for that they were faga- ces ad compotos recipiendos & allocandos . § 3. The antient form of the writ . The firſt writ of ſummons extant upon record is that of 49 H. 3. viz . Henricus , Dei gratia , rex Angliæ , domi- nus Hibernia , & dux Aquitanie , venerabili in Chriſto patri , R. eâdem gratiâ epiſcopo Dunelm . falutem . Cum post gravia turba- tionum difcrimina dudum babita in regno no- ftro , chariffimus filius Edvardus primo - genitus noſter , pro pace in regno nostro aſſecuranda , & firmanda , obſes traditus extitiffet , & jam , Sedata ( benedictus Deus ) turbatione predicta , fuper deliberatione ejusdem falubriter provi- denda , & plena fecuritate & tranquillitate pacis , ===== PAGE seq 33 ===== Of Summons . 11 pacis , ad honorem Dei , & utilitatem totius regni noftri firmanda , & totaliter complenda , ac fuper quibusdam aliis regni noſtri negotiis , quæ fine confilio vestro , & aliorum prælatorum & magnatum noftrorum nolumus expediri , cum iisdem tractatum habere nos oportet : vobis mandamus , rogantes in fide & dilectione qui- bus nobis tenemini , quod omni occafione post- pofita & negotiis aliis prætermiffis , fitis ad nos London ' in oftabis Sancti Hillarii proxime futuris ; nobiscum , & cum predictis prælatis , & magnatibus noftris , quos ibidem vocari fe- cimus , fuper premiſſis trattaturi & concilium impenfuri : & hoc ficut nos & honorem no- ſtrum & veftrum , nec non & communem regni noftri tranquillitatem diligitis , nullatenus omit- tatis . Teste meipso 14 Decemb . an.regni nostri 49 . Eodem modo mandatum est epifc . Carl . & . Sub data 14 Decemb . In forma predicta fcribitur abbatibus & prioribus fubfcriptis , & c . fub data apud Woodstock 24 Decemb . In ===== PAGE seq 34 ===== 12 Of Summons . In forma prædicta mandatum eft comitibus & aliis fubfcriptis fub data apud Woodstock , viz . Comiti Leicestr ' . Comiti Gloceftr ' . Comiti Norf ' . & marefchal . Angl . Comiti Oxon . Comiti Derby . Rad . de Camois . Rogero de Sanct . Johanne . Hugoni le Defpenfer justic . Angliæ . Johanni filio Johannis . Will . de Munchens . Nich . de Segrave . Johanni de Vescy . Rad . Baffet de Drayton . Henrico de Hastings . Galfrido de Lucie . Roberto de Ros . Johanni de Eyvil . Ade de Novo Mercato . Waltero de Colevil . Willielmo ===== PAGE seq 35 ===== Of Summons . 13 Willielmo Marmyon . Rogero Bertram . Roberto Baffet de Sapcote . Gilberto de Gaunt . Item mandatum est fingulis vicecomitibus per Angliam , quod venire faciant duos milites de legalioribus & difcretioribus militibus fin- gulorum comitatuum ad regem , London ' , in oftabis prædictis , in forma prædicta . Item in forma prædicta fcribitur civibus Ebor . civibus Lincoln . & cæteris burgis An- gliæ , quod mittant , & c . Item in forma predicta mandatum eft ba- ronibus , & probis hominibus Quinque Por- tuum , & c . The differences between this writ and the writ at this day are , that this is ſpecial , declaring the cauſe of the ſummons ; and ſo were divers others of Edw . 1. Edw . 2 . Edw . 3. and Rich . 2. But for the moſt part they were general , as at this day , and none ſpecial after the ſeventh year of Rich . 2. But vide Matthew Paris , p . 247. in charta ===== PAGE seq 36 ===== 14 Of Summons . charta regis Johannis . In omnibus litteris Submonitionis caufam fubmonitionis illius ex- ponemus , & c . And alſo , this writ is alike unto the lords and judges ; for ſuch were Johannes de Ey- vil and they that follow ; and ſo the writs were alike in divers years of Edw . 1. in moſt of Edw . 2. and in many of Edw . 3 . §4 . Of the title of the party fummoned . The biſhops chriſtian names were ever mentioned , and ſtiled antiently venerabilis in Chrifto pater , & c . But now the archbishops are ſtiled reve- rendiſſimi , and all other biſhops reverendi in Chrifto patres . The chriftian names of the abbots and priors were never mentioned . They were ftiled thus . Diletto in Chrifto abbati fancti Augustini , & c . I find no other attribute to the prince than chariffimus in the time of Edw . 1 . 5 Edw . ===== PAGE seq 37 ===== Of Summons . 15 Edw . 2. Edw . 3. and Hen . 4. And that is omitted in 24 Edw . 3. And in the 26 Edw . 3. it is thus , Rex dilecto & fideli Edwardo , principi Wallie , duci Cornubia , & comiti Ceftria , falutem . A duke , an earl , a baron , were ſtiled all alike . Prout , an . 29 E. 3. dilecto & fideli Suo Henrico , duci Lancast . Salutem . Neither had any of the king's brethren , nephews , or uncles , any other title in the time of Edw . 1. Edw . 2. and Edw . 3 . But when Edw . 3. had created his own children dukes and earls , then they were ſtiled filii fui chariſſimi ; and Rich . 2 . named them avunculos , or confanguineos fuos chariffimos ; but none other had that attri- bute of chariffimus in the title of his writ , although he were the king's kinſman ; prout an . 16 R. 2. dilecto & fideli confanguineo Ricardo comiti Arundel & Surrey . Barons and peers : they never had any other title than dilectus & fidelis , ſave that after the French wars ſome of them had the addition of chivaler . The firſt ſo ſtiled were ===== PAGE seq 38 ===== 16 Of Summons . were Willielmus de Morley and Willielmus de Aldeburgh , an . 49 E. 3. I remember no other in the time of Edw . 3. but Wells , eo- dem anno 49 E. 3. in the prorogation of that Parliament ; and he was ſummoned without that addition an . 50 E. 3. and after during his life . And fome had that addition , annis R. 2 . H. 4. & H. 5. but after 3 H. 6. they all had that title of chivaler ; but it was not antiently a note of honour , for an . 1 , 2 , & 3 R. 2. fome of the judges had the fame ; viz . John Knyvet and Robert de Afhton . Some had the title baro and dominus in their writs . The lords Stafford and Greyſtocke were ufually fummoned by the title of their ba- rony , prout an . 27 E. 1. Edw . baroni de Stafford ; an . 23 E. 1. Johanni , baroni de Greystocke ; omitting their furnames of Ba- gott and And I find others in the time of Hen . 6 . who had the title of dominus . Happely they were but then created ; which I leave to ===== PAGE seq 39 ===== Of Summons . 17 to the ſearch of others ; I will only recite their names . An . 25 H. 6. 14 Dec. Edwardo de Grey , chivaler , domino de Ferrariis de Grobye . Henrico de Percy , chivaler , domino de Poyn- ings . An . 27 H. 6. 20 Jan. Johanni de Beau- champ , militi , domino de Beauchamp . Ja- cobo Fiennes , militi , domino de Saye & de Sele . Eodem an . 27 H. 6. Roberto Hungerford , militi , domino de Moleyns ; Willielmo Bour- chier , militi , domino Fitzwaryn ; Willielmo Beauchamp , domino de fancto Amando . Teste R. apud Westminſt . 22 die Maii . Eodem an . 27 H. 6. R. dilecto & fideli fuo Henrico Bromflet , militi , baroni de Veffy , Salutem , quia , & c . Volumus enim vos , & ha- redes veftros mafculos , de corpore veſtro legi- time exeuntes barones de Veſſy exiftere . Teste rege apud Westminster 24 Januarii . R. dilecto & fideli fuo Willielmo Bonevyle , militi , domino Bonevyle de Chuton , falutem . quia , & c . ficut in aliis brevibus T. R. apud B Weft- ===== PAGE seq 40 ===== 18 Of Summons . Weſtminster 10 Martii . - Per ipsum re- gem . Johanni Sturton , militi , domino Sturton ; an . 28 H. 6. - Per ipfum regem . Edwardo Nevil , militi , domino de Berga- veny ; Thome , domino de Roos ; Thomæ Grey , militi , domino de Richemond ; Thome Percy , militi , domino de Egremond ; Willielmo Fi- nes , militi , domino de Say ; an . 29 H. 6 . T. R. 23 April . - Per ipſum regem . An . 33 H. 6. 26 Maii . Johanni , domino de Clinton . An . 34 H. 6. Thomæ Stanley , militi , do- mino de Stanley , T. R. 15 Januarii . Per ipsum regem & confilium in Parliamento . Summoned to the Parliament of the 33 H. 6 . An . 38 H. 6. 30 Jul . per ipsum regem . Richardo Fenys , domino de Daere , militi ; - Richardo Wells , domino Willoughby , militi ; Johanni Clifford , domino de Clifford , militi . Eodem anno . Johanni Nevil , domino de Nevil , T. R. apud Coventry 20 Novemb . per breve de privato figillo . An . 1 E. 4. Johanni Nevil , domino de Mountagu , chivaler , & c . ===== PAGE seq 41 ===== Of Summons . 19 And in all theſe times the ſummons to the lord Greystock are , Rad . Greystock , Chr . omitting baroni , which he had in his antient writs . And theſe lords who in the time of H. 6 . ( barons being then moſt uſually created by patent ) were ſtiled domini , had their fum- mons in Edw . 4. with the word chivaler only , fince when they all have no other ad- dition . The judges ever had the title of diletti & fideles in their writs , and retain the fame to this day . § 5. The form of the mandamus . Next to the title is confiderable the form of the mandamus ; how it is to the lords ſpiritual , and how to the lords temporal , and the judges , and others of the king's learned council . And then , what the lords , and what the judges and others were commanded to do by their writs of fummons . B 2 The 1 ===== PAGE seq 42 ===== 20 Of Summons . The mandamus to the bishops , an . 49 H. 3 . was thus : Vobis mandamus in fide & dilectione qui- bus nobis tenemini , quod , & c . An . 27 E. 1. Vos effectuoſe requirimus , & rogamus , quod , & c . An . 32 E. 1. & 5.E. 2. Vobis mandamus quod , & c . An . 2 E. 2. Vobis mandamus firmiter in- jungentes quod , & c .. An . 1 E. 3. and in all other Parliaments , thus : Vobis mandamus in fide & dilectione quibus nobis tenemini , firmiter injungentes , quod , & c . And ſo it continues unto this day . The like to the abbots and priors . As to the temporal lords ; An . 49 H. 3. after the writ to the bishops , which is entered at large , it followeth in the roll : Item , in forma prædicta mandatum eft co- mitibus , & c . And I find the mandamus to the lords tem- poral , an . 23 E. 1. bis , & an . 24 E. 1. & an . 1 ===== PAGE seq 43 ===== Of Summons . 21 an . 2 E. 2. to be , In fide & dilectione , as to the biſhops ; and an . 6 R. 2. Confimile to the duke of Lancaster . But in all other fummons In fide & ho- magio ; until 22 Edw . 3. and 25 Edw . 3 . and then the fummons to the king of Scots and prince of Wales were , In fide & legian- tia : and an . 45 E. 3. Confimile to them all , and ſo it continues to this day , Vobis mandamus in fide & legiantia qui- bus nobis tenemini , firmiter injungentes , quod , & c . § 6. What they are commanded to do . The lords ſpiritual and temporal are , Tractare cum rege , & cum cæteris præla- tis , magnatibus , & proceribus , & concilium Suum impendere . But the forms hereof in the antient writs of Ed . 1. are divers , prout , To the bishops , an . 23 E. 1. Super qui- bufdam arduis negotiis nos & regnum noftrum & vos ceterofq ; prælatos de eodem regno tan- B 3 gentibus , ===== PAGE seq 44 ===== 22 Of Summons . gentibus , quæ fine veftra & eorum preſentie nolumus expediri , vobis mandamus , & c . quod fitis , & c . fuper dictis negotiis tractaturi , & veſtrum confilium impenſuri , 23 Junii . To the temporal lords , eodem anno 23 Junii . Super quibufdam , & c . Nos & regnum noftrum & vos cæterofq ; proceres & magnates de eodem regno tangentibus , quæ fine , & c . ut fupra . To the judges , eodem an . Super quibus- dam arduis negotiis nos & regnum noftrum ac vos cæteroſq ; de confilio noftro tangentibus que fine , & c . ut fupra in mandat . epifc . An . 23 E. 1. 30 Sept. The writ to the bishops recites the wrongs done by the French king in Gafcony , and his army prepared to invade England itſelf ; and then thus , Quia præviſa jacula minus lædunt & res veftra maxime ficut cæterorum regni concivium agitur in hac parte , vobis mandamus in fide & dilectione quibus nobis tenemini firmiter in- jungentes , quod die dominica proxima poft fe- ftum faneti Martini in bieme proxime futu- rum apud Westminſter perfonaliter interfitis ; pramu- ===== PAGE seq 45 ===== Of Summons . 23 ! præmunientes priorem & capitulum , & c . ad tractandum , ordinandum & faciendum nobif- cum & cum cæteris prælatis & proceribus & aliis incolis regni noſtri qualiter fit bujusmodi periculis , & excogitatis malitiis obviandum , T. R. & c . Confimile to the earls and barons , & c . omitting only the clauſe premunientes . By theſe words aliis incolis regni are un- derstood the commons ; but the lords have no ſuch command in any other writ ( this only excepted ) ; neither had the clergy any fuch command in any other writ than this . Memorand . The king obtained a great ſubſidy at this time . To conclude this point , the lord fum- moned is to treat with the king and the other lords , and to give his counſel . Only in this laſt recited writ is omitted , to give counsel . The judges and others of the king's council are , tractare cum rege & cum cæteris de con- filio regis & confilium fuum impendere , & c . Prout , B 4 An . ===== PAGE seq 46 ===== 24 Of Summons , An . 28 E. 1. Nobiscum , & cum cæteris de confilio noſtro ſuper dictis negotiis tractaturi veftrumq ; confilium impenfuri , & c . Confimile in moſt years of Edw . 1. Yet their writs were oftentimes all one with thoſe to the lords , prout , an . 23 Edw . 1. and 27 Edw . 1. and in moſt years of Edw . 2 . The firſt Parliaments of Edw . 3. agree with that of 28 Edw . 1. viz . Tractare no biscum & cum cæteris de confilio noftro ve- ſtrumque confilium impendere , prout an . 4 E. 3. & 5 , 6 , 7 , & c . ufq ; 20 E. 3 . From the 20th year of Edw . 3. until the 46th , their writ agrees with the lords in this clauſe , viz . Nobiscum & cum dictis prælatis , magnatibus , & proceribus dicti regni nostri tractaturi , vestrumq ; confilium impenfuri . And in two Parliaments of Edw . 3. viz . an . 1 E. 3. 11 Decemb . & 2 E. 3. it is No- bifcum tractare , & c . omitting & cum cæteris de confilio . And an . 27 E. 1. it is Nobiscum & cum prælatis , magnatibus , & proceribus & aliis de confilio noftro , & c . But 1 ===== PAGE seq 47 ===== Of Summons . 25 But from 46 of Edw . 3. to this day , it agrees with that of 28 Edw . 1. viz . Nobif- cum & cum cæteris de confilio noftro , & c . The clergy . The biſhops were fummoned to appear themselves in perſon , and to warn the clergy of their dioceſe to appear in this manner , viz . The dean or prior of their church , and the arch - deacons of every deanery of the dio- ceſe to appear in perſon ; The chapter of the church to ſend one proctor , and the clergy of the dioceſe two ; Plenam & fufficientem potestatem ab ipfis ca- pitulo & clero habentes , ad faciendum & con- fentiendum iis quæ tunc ibidem de communi confilio ( divina favente clementia ) ordinari contigerint , & c , an . 4 E. 3 . In the firſt ſummons an . 23 E. 1. where this clauſe is recorded in the biſhops writs , it is , Ad tractandum , ordinandum , & faciendum nobifcum & cum cæteris prælatis , & proceri- bus , & aliis incolis regni noftri , & c . 2 But ===== PAGE seq 48 ===== 26 Of Summons . But this cannot be alleged for a prece dent , for it is not to be found in any of the former or fubfequent writs , they all agree- ing with this of 4 Edw . 3 . Here may be a queſtion , whether the clergy did antiently come to the Parlia- ment . Without the king's command they could not come , and they are omitted in the firſt ſummons which we have recorded ; viz . an . 49 H. 3. and in the firſt Parlia- ment of 23 Edw . 1. and in divers other fol- lowing Parliaments , prout an . 27 E. 1. Feb. 6. an . 28 E. 1. Septemb . 26. an . 3 E. 2 . Octob . 26. an . 16 E. 2. Septemb . 18. & an . 6 E. 3. 26 July ; but never after the 6th year of Edw . 3. quære rationém . The commons were not ſummoned , but elected upon the king's writs to the ſheriffs , & c . as shall be declared in the end of this chapter , and were commanded to come to the Parliament ; Plenam & fufficientem po- testatem habentes ad faciendum & confentien- dum biis quæ de communi confilio ( favente Domino ) ordinari contigerint , & c . an . 4E.3 . With ===== PAGE seq 49 ===== Of Summons . 27 With this agree all the former and ſub- ſequent writs ; divers additions have been by ſtatute touching the election , but this clauſe never altered . Corollarium . The lords , ſpiritual and temporal , are to treat with the king and the other lords preſent ; and to give their counsel . The judges are to treat with the king and the rest of his council ; and to give their coun- fel . The clergy and commons are to come with power to do and confent unto that which shall be ordained by the common council of the land , i . e . the Parliament . And this is the cauſe that all judgments in Parliament were given by the lords , and not by the commons ; yet the commons are parties to the reverfal of judgments given in Parliament . All petitions directed to the king and his council were handled by the judges as by the king's council , and by them prepared for the lords ( if need were ) but never by the commons . All ===== PAGE seq 50 ===== 28 Of Summons . All ordinances made in Parliament were made by the lords alone , and not by the commons . All ordinances made per commune conci- cilium , or in pleno Parliamento , were made by the lords and commons . But the com- mons alone can make no ordinance . Nei- ther do theſe words ( en plein Parlement ) al- ways include the commons . Vide an . 6 E. 3 . poſt feſtum ſancti Gregorii , n . 12. an act done en plein Parlement two days after the commons were gone . So an . 14 E. 3. the answer to Geffrey Stanton's petition , en plein Parlement , must be understood to mean only before all the lords , in open Parlia- ment , and not a committee . But of this more in the ſecond book . § 7. By what warrant the writs of Summons were made . It doth not appear by the firſt record of fummons now extant , an . 49 H. 3. by what warrant ===== PAGE seq 51 ===== Of Summons . 29 warrant the lord chancellor caufed the writs of fummons to be made . The king was then prifoner unto Mountford , his ſometime minion . But furely none but the king can ſum- mon the Parliament ; and this is the reaſon that Hen . 4. having taken his liege lord , king Rich . 2. priſoner on the 20th day of August , an . 23 , did cauſe the writs of fum- mons for the Parliament , wherein he ob- tained the crown , to bear date the 19th day of the fame month , and the warrant to be per ipſum regem & confilium , and himself to be fummoned by the name of Henry duke of Lancaster . The warrant hath been divers ; ſome- times per breve de privato figillo ; but moſt commonly per ipſum regem , or per ipfum re- gem & confilium . If the king hath been abſent out of the land , and a custos appointed ( as the manner is ) the writ bears tefte by the custos , and the warrant is per ipſum regem , & dominum cuf- todem , & confilium , prout an . 13 E. 3. Teste Edwardo 1 ===== PAGE seq 52 ===== 30 Of Summons . Edwardo duce Cornubiæ , & c . custode Ar- gliæ . Per ipsum regem , & dominum cuftodem , & confilium . An . 20 E. 3. Confimile . An . 9 H. 5. Teste Johanne duce Bedford , cuſtode Angliæ . Per ipfum regem & confilium . An . 9 H. 6. the king being in Paris , Teſte Humfrido duce Gloceſtriæ , cuſtode Arn- gliæ . Per breve de privato figillo . But if the king be within the land , ( though within age and a protector ap- pointed him ) he alone is testis to the writ , and the warrant is per ipsum regem ; prout , an . 1 H. 6. and ſometimes per ipfum regem , & confilium , & c . But for many fummons , the warrant is not recorded . The form of the warrant is as followeth : James , by the grace of God , king of England , Scotland , France , and Ireland , de- fender of the faith , & c . To our right truſty and right well - beloved counsellor Thomas Egerton , ===== PAGE seq 53 ===== Of Summons . 31 Egerton , chancellor of England , greeting : Whereas we , by our council , for certain great and urgent cauſes concerning us , the good estate and common wealth of this our realm , and of the church of England , and for the good order and continuance of the ſame , have appointed and ordained a Par- liament to be holden at our city of Westmin- fter the first day of April next coming ; in which cafe divers and fundry writs are to be directed forth under our great feal of Eng- land , as well for the prelates , biſhops , and nobility of this our realm , as alſo for the election of knights , citizens , and burgeſſes of the ſeveral counties , cities , and borough towns of the fame , to be preſent at the faid Parliament at the day and place aforesaid ; Wherefore we will and command you forthwith upon the receipt hereof , and by warrant of the fame , to cauſe ſuch and fo many writs to be made and fealed under our great feal for the accomplishment of the fame , as in like cafes hath been here- tofore ufed and accuſtomed : and this bill , figned ===== PAGE seq 54 ===== 32 Of Summons . figned with our hand , ſhall be as well unto you , as to every ſuch clark and clarks as ſhall make or paſſe the fame , a fufficient warrant in that behalf . Given , & c . The warrant is general , and directs not the lord chancellor unto whom he ſhall di- rect the writs of fummons , nor to omit any that were fummoned the Parliament before ; and yet it is apparent , that many lords ( though living ) have been omitted , and that , the father , who hath been often ſum- moned in his life - time , being dead , his fon , nor none of his pofterity , have ever been after fummoned . This gives me occaſion to ſhew what right the nobility have had to be fum- moned , and upon what occaſions they have been omitted . § 8 . ===== PAGE seq 55 ===== Of Summons . 33 $ 8. Of the right of the nobility to be Jummoned . Firſt , for their Right . The king at this day inferts into the patent of creation of a baron , that he ſhall be ſummoned to Par- liament ; ſo that the queſtion doth reſt only upon thoſe barons who had no patent of creation ; for the earls had charters , and no doubt was ever made of them . The doubt ariſeth out of this , that divers lords have been called by writ ( the only thing left us recorded to know them ; for antiently they had no patents ) and yet their fons and pof- terity wholly omitted ; ſo that it may feem it reſted merely in the king's will to call them again , or wholly omit them ; and that they had no right to be called by their crea- tion . To fatisfy this , let us confider of the creation of earls ( of whom there never was doubt ) and of the creation of barons . C It ===== PAGE seq 56 ===== 34 Of Summons . It cannot be denied , but that earls were ever created by an actual ceremony , and . that antiently they had no charter , Mande- vile , earl of Effex , being the firſt that had any ; as the common opinion is , there being none extant before his time . Now the quef- tion is , Whether the honour paſſed by crea- tion , without the charter , or no ? And I ſuppoſe it did ; and that the charter was to convey the jurifdiction antiently , and , of latter times , the third penny of the county , rather than for the honour . And for this cauſe , happely , divers earls uſed to renew their charters at the change of the prince , not to renew their honour , but to confirm the grant of the third penny of the county from the crown ; wherefore I may affirm that the ceremony of inveſtiture , & c . crea- ted the earl , and the charter gave the earl- dom . Mandevile , earl of Effex , was created by king Stephen ; his charter was granted to him again by Maud the empreſs ; and again by her fon Hen . 2 . Milo , ===== PAGE seq 57 ===== Of Summons . 35 Milo , earl of Hereford , created by Maud the empreſs , and his charter was granted to him again by her fon king Hen . 2 . Theſe are extant with Sir Robert Cotton , an . 1626. And if charters had been ufually inrolled in thoſe times , when the jurifdiction of the county was granted unto the earl , we should have had many more precedents . Of the creation of barons , I know there are divers opinions ; viz . 1. That there are barons by creation . 2. Barons by writ . 3. Barons by tenure . The two latter are erroneous . 1. Touching barons by creation , I do here intend thoſe only who had no patent ( as now they have ) but were antiently crea- ted by an actual ceremony ; even as earls antiently were . C2 No ===== PAGE seq 58 ===== 36 Of Summons . No antient record can be produced , that any degree of honour did paſs ( no not among the barbarous nations ) without an actual ceremony . Knighthood did ever re- quire it , which is the loweſt . And there- fore I cannot conceive , but that the antient barons were ever created firſt , before they had their writs ; and then having once been called by writ , they had as good right , for them and their poſterity , to be fummoned ever after as the earls had , ſo they kept their land . To prove that barons were created by ce- remony , examine the patent of 11 R. 2. to the lord John Beauchamp of Holt , which fome antiquaries affirm to be the firſt patent of the creation of a baron . The words are , Ipsum Johannem in unum parium & baronum regni nostri Angliæ præfecimus , volentes quod idem Johannes , & hæredes mafculi de fuo cor- pore exeuntes statum baronis obtineant , ac do- mini de Beauchamp & barones de Kidermyn- fter nuncupentur : in cujus rei testimonium , & c . Teste ===== PAGE seq 59 ===== Of Summons . 37 1 Teste rege apud Woodſtocke , 10 die Oc- tobris . It is ſtrange to me that any ſhould think that this patent did create the lord Beau- champ a baron . It wants the very words of creation ; it faith ( præfecimus ) we have created , and not ( per præfentes præficimus ) we do now create him ; fo that out of all doubt he was crea- ted before , and the king by this patent only limited the honour to his heirs males , as Hen . 6. did in the first writ of fummons to Bromflet , baron of Veffey , an . 27 H. 6. Rot . Cl . m . 24. dorf . But if Beauchamp were created before this patent , the question is , how he was created ? I anſwer , neither by patent , nor by writ ; for the patent is dated the 10th of October , and created him not : and his firſt writ was in December following ; which is a good conclufion , in my opinion , that he was created a baron , by inveſtiture of robes , before he had either patent or writ . Xhavit be that for C3 2. Ba- ===== PAGE seq 60 ===== 38 Of Summons . 2. Barons by writ . How can it be ima- gined that a writ can create a baron ? the ground alleged for it is the great ſlaughter of the rebellious barons at the battle of Evesham , an . 49 H. 3. And that therefore others were fuddenly created by writ to con- vict the remainder of thoſe rebels . The foundation of this error is built upon a falſe ground ; for that Parliament of 49 Hen . 3 . was ſummoned before the battle of Eve- fham , to confider of the deliverance of the king's eldeſt ſon , who was then a prifoner ; and Mountford , earl of Leicester ( the chief rebel ) had his ſummons alſo , and divers others who were ſlain at that battle on his part . 1 If the writ , without inveſtiture of robes , did ennoble the party , then were all the judges , the king's ſerjeants at law , the maf- ters of the chancery , divers deans and arch- deacons ( being treaſurers or keepers of the privy feal , or otherwise of the king's coun- cil ) ennobled , in divers Parliaments of Edw . 1. almoſt in all Parliaments of Edw . 2. and in ===== PAGE seq 61 ===== Of Summons . 39 | in many of Edw . 3. For they had then one and the self - fame writ as the earls and ba- rons had . The king's two eſcheators have had the fame writ , an . 12 & 14 E. 2. I grant that divers have been called by writ , and had the fame writ the barons had , yea , and were ranked in the cloſe rolls ( by the chancery clerk ) above divers antient barons , and afterwards omitted ; and it may be they ſubſcribed among the lords ; but I deny that fuch were barons ; they were but peers : for fuch were alſo antiently ſummoned to Parliament . Among the rest I will cite one , viz . Mounthermer ; who having married the widow of the earl of Gloucester , and having a great part of the earldom as her jointure , was ſummoned as an earl , during the mi- nority of her fon , by Edw . 1. And when the fon came of age , Mounthermer was ſum- moned as a baron , but his fon and poſte- rity omitted . It may be objected , how these peers could be difcerned from the barons , their writs being all one ? C4 I anſwer , ===== PAGE seq 62 ===== 40 Of Summons . I anſwer , by their manner of appearance : for the barons appeared in their robes , fuch as they had at their creation ; the peers did not ; for they had none , or fuch as were far different from the barons robes . For can it be thought that Mounthermer appeared firſt in earls robes ? ſurely no ; for it had been a diſgrace to him afterwards to appear in barons robes , when he came but as ba- ron . It plainly appears that he was ſum- moned ratione tenure tantum , & non nobili- tatis ergo ; and fo had no robes . As touching the opinion that the father being fummoned , his perſon was ennobled ; and if his fon be alſo ſummoned , his blood is ennobled ; I have obſerved , that three defcents have been fummoned , and yet they were no barons , viz . an . 49 H. 3. Radul- phus de Camois was fummoned , and ranked in the roll above all barons ; and Ralph Ca- mois his ſon was ſummoned , an . 7 E. 2. and ever after , during his life , by Edw . 2. and Edw . 3. and yet 7 R. 2. Cl . m . 32. dorſo , Tho . Camois , the grandchild ( if I mistake 4 not ===== PAGE seq 63 ===== Of Summons . 41 not the pedigree ) being chofen one of the knights for Surrey , was diſcharged by the king's writ , Quia ipſe , & quam plures ante- cefforum fuorum banneretti fuerunt . And king Rich . 2. fummoned him to that very Parliament of an . 7. and he was fummoned ever after during his life . I doubt not but the heralds will affirm , that Ralph Camois the father and fon , yea , and this Thomas Camois , were barons ; but how will they then anſwer the record of 7R . 2 . who faith they were bannerets , a title given to the peers of that age , as that of milites was in the time of Edw . 1. and the king's tenants in capite in the time of king John , as ſhall be ſhewed hereafter . If they can prove that Thomas Camois enjoyed the pre- cedency of place which his grandfather had an . 49 H. 3. I am satisfied ; till then I con- ceive , leaving others to their own better judgments , that Camois was called to Par- liament three deſcents , yet , not being crea- ted a baron by inveſtiture of robes , but only called by writ , he was but a baron's peer ===== PAGE seq 64 ===== 42 Of Summons . peer , and no baron . And it seems to me , that thoſe claims of privilege not to be im- pannelled of a jury , which occur in our year- books , were made by peers , and not by ba- rons ; for the trial was by the Parliament- record , whether fummoned or not ; and not by the heralds for their creation . For it is impoſſible but a fheriff of a county ſhould know a baron of the ſame ſhire : his crea- tion ( if he were the firſt ) ; his appearance in the Parliament in robes ; and the hatch- ments at his father's funeral , if the barony defcended unto him , would be fo notorious , that the ſheriff of the ſame ſhire could not ſo miſtake as to impannel him of a jury , and the bailiff dwelling in the fame hundred warn him to appear . I know that the word peers in two Par- liaments of 15 Edw . 2. did fignify the lords ſpiritual and temporal , and all that had voice in Parliament , according to the fig- nification of the word ; and in the 4 Edw . 3 . all that were to be tried by peers , i . e . the temporal lords only ; but in all the antient ſtatutes ===== PAGE seq 65 ===== Of Summons . 43 ſtatutes ( penned by the judges and the king's ferjeants ) the earls and barons are named , or elſe magnates ; and this word , peers , is not found in any of them , fave in thoſe of 15 Edw . 2. and 1 Edw . 3. touching the ba- nishment of the Spencers . Neither did any of thoſe lords , who were impannelled of a jury , challenge the name or title of a ba- ron . Vide Brook's Abridgement , tit . Challenge , n . 18. the cauſe alleged is , for that he was banneret and lord of Parliament , and bad place there , and ſo ought not to be of a jury . And may it not be , that he who was ſum- moned to the Parliament as a baron ( though but a peer ) had the ſame privilege as a ba- ron during his life only ? He had voice in Parliament , why not privilege out of Par- liament ? why may not ſo much be granted unto him , as to a banneret , not to be chofen a knight of the ſhire ? The banneret might be fummoned to the upper house , and there- fore ( in my opinion ) ought not to ſerve in the lower ; why not the other privilege upon the ===== PAGE seq 66 ===== 44 Of Summons . the fame reaſon ? The very trial of ſuch challenges was , whether fummoned or not ; not , whether a baron , or no baron ; which ſatisfies me that they were no barons , but peers ; and , being fummoned , had the pri- vileges of barons , both for that , and to be tried by peers ; but were not fo honour- able . Here may be a doubt , whether the ba- rons and peers took place in the Parliament- houſe as they were ranked in the lifts of ſummons ; then did Radulphus de Camoys , being but a peer , take place , an . 49 H. 3 . above all barons : and fo ' Thomas Camoys , ⚫ the grandchild , was ranked an . 17 R. 2. and after , for divers Parliaments , above all ba- rons . If you peruſe thoſe antient ſummons , you shall not find any one of them ranked aright . Vide . an . 12 E. 3. where Thomas earl of Norfolk , marſhal of England , and the king's uncle , and the earls of Gloucester and An- gus , are placed in the middle of the barons ; and the lord Stafford , an antient baron , ranked loweſt ſave one . ===== PAGE seq 67 ===== Of Summons . 45 Vide an . 27 E. 1. where Eustachius de Hache , John de Havering , and Henry de Pinkney , and others , are ranked before Henry , the earl of Lancaster's fon and the king's nephew . And 1 H. 6. where the earl marſhal , the earl of March , the duke of Exon , and the earl Warren , are ranked after divers barons . An . 3 H. 6. Humphrey duke of Gloucester , the king's uncle , and the earl marſhal , are ranked together lowest of the barons fave one . Vide Confimil . an . 13 & 20 H. 6 . Neither ſhall you find all the lords placed alike in any two fummons . And the faid Thomas de Camoys in divers Parliaments be fore 17 R. 2. and in all Parliaments after 3 H. 4. was ranked fometimes the loweſt , and ſometimes near the lowest of all the lords . To prove that peers were fummoned as well as earls and barons , vide the antient manufcript of Modus tenendi Parliamentum , cap . de Laicis . Summoneri debent omnes & finguli , comites , barones , & eorum pares . Et ===== PAGE seq 68 ===== 46 Of Summons . 3 Et vide chartam Johannis R. in M. Paris , p . 247 , where , after the ſummons of the arch- biſhops , biſhops , earls , & barones majores , he faith , Item Summoneri faciemus , & c . omnes alios qui in capite tenent de nobis , & c . It fets not down the quantity of their tenure ; but it is expreſſed , in that other antient manufcript , to be thirteen knights fees for a baron's peer , and twenty knights fees for an earl's peer . Et vide Rot . Cl . an . 27 E. 1. after the writs to the earls ; Confimiles litteræ diri- guntur baronibus & militibus fubfcriptis , & c . Vide a list of the names of fuch as were beheaded with the earl of Lancaster at Bo- roughbridge , an . 15 E. 2. where many , who were formerly fummoned to Parliament as lords , are named bannerets ; prout , Sir Henry Tyeys , Sir John Giffard , Sir Bartholomew de Badlesmere , Sir John Mowbray , & c . Vide etiam fummons to Thomas de Brade- ſton , an . E. 3. who was a banneret , as ap- . pears by the patent , an . E. 3. And Ralph Camoys the father and fon were fummoned , temp . 1 ===== PAGE seq 69 ===== Of Summons . 47 temp . H. 3. E. 2. & E. 3. and yet an . 7 R. 2. Cl . 32. the record faith , that Thomas Ca- moys and very many of his ancestors were bannerets ; and therefore he was exempted from being knight of the ſhire ; happely , for that the king might fummon him alſo to Parliament , as he did his ancestor Ralph Camoys . Vide etiam Rot . Parl . an . 18 E. 3. n . 35 . The cause of fummons was declared in the prefence of the king and divers lords there named , & autres barons & banerettes , chi- valers de countyes , citeyns & burgeiis des burghs ſommons audit Parliament . Et an . 46 E. 3. n . 7. The dukes , earls , barons , and bannerets . And in divers Par- liament - rolls of Edw . 3. often occurs , by the prelats , earls , barons , and other grands . An . 13 E. 3. octab . Hill . n . 8. The earls and barons being in Parlement , have graunted for themselves , aud for their peeres of the lande which holde by baronye , the tenthe fleece , & c . In this Parliament the com- mons granted a fubfidy by themſelves , and the | ===== PAGE seq 70 ===== 48 Of Summons . the lords granted another by themſelves , amongst whom were reckoned their peers , les prelatz , countes , barons , & autres grantz . An . 17 E. 3. n . 60. Per les countes , barons , & autres nobles . Theſe autres grands and autres nobles could be none other than the peers , all other degrees of honour being named . An . 5 R. 2. c . 4. The ſtatute faith , If any perfon , which from henceforth ſhall receive fummons of Parliament ( be he arch- biſhop , biſhop , abbot , prior , duke , earl , baron , banneret , knight of the ſhire , citi- zen of city , burgeſs of burgh , or other fin- gular perſon or commonalty ) do abſent himself , & c . he ſhall be amerced , & c . Theſe reaſons give me fatisfaction that peers were ſummoned in the times of Hen . 3 . Edw . 1. Edw . 2. Edw . 3. and Rich . 2. & c . as well as barons , and they and their poſte- rity omitted ad libitum regis ; and divers painful antiquaries obſerving this omiffion , and not knowing that they were but peers , have been firm of opinion , that the writ did ===== PAGE seq 71 ===== Of Summons . 49 did create a baron , but it was ad libitum re- gis to call his fon , or to omit his whole po- ſterity . 3. Touching the third kind of barons by tenure , it is erroneous as that by writ . I have peruſed all the precedents that are alleged for it , and they are of the land con- veyed by the king's licence to the heir male , or the ſecond ſon of the ancestor that was created by writ . The ſame may be ſaid of an earldom alſo ; for the lord Matrevers , being heir male , and having the castle of Arundel by entail , was adjudged in Parliament , an . 11 H. 6. to be earl of Arundel by force of the entail . Among the other precedents may be added one in our time , ' of Edward Nevill , heir male to the lord Abergavenny , having the land entailed on him , and the king fummoning him by writ , his lordſhip took his antient place . For the ancestor being created by the ceremony of inveſtiture , the ſame needs not be renewed in any of his poſterity ; D ===== PAGE seq 72 ===== 50 Of Summons . pofterity ; there the writ alone is ſufficient , for fuch honour is inheritable , and hath been diſpoſed of with the land , which is a good proof of the baron's right to come to Parliament ( whereof more hereafter ) ; but not that the land made the honour or carried the honour ; for they can allege no precedent of a mere ſtranger in blood , and purchafer of the lands of a barony , tho ' with the king's licence ( otherwise the fale of no land held in capite , as all baronies are , can be good against the king ) who hath by virtue of the land been called to Parliament . Only one comes near it ; and that is of the barony of Latimer of Danby ; whoſe daughter and heir being married unto John lord Nevill , and he called by writ in her right , and had iſſue by her , John and Elizabeth ; John the fon died without iſſue , having firſt fold the Jordſhip of Danby unto George Nevill the fon of . Ralph , the ſon of the faid John the father by his firſt wife : and afterwards ( the heir general making no claim unto the ho- nour ) 1 ===== PAGE seq 73 ===== Of Summons . 51 nour ) the faid George Nevill was ſummoned by Hen . 6. to the Parliament . • But Brook lord Willoughbye , the heir ge- neral , petitioned Hen . 7. for the ſaid ho- nour ; and in my opinion ( had it not been for his ancestors non - claim , together with Nevill's poſſeſſion for three deſcents ) he ſhewed the beſt right for it . But if you pleaſe to peruſe the inquifi- tions poft mortem , remaining in the Tower , you ſhall find very much land held per ba- roniam , even in antient times , in the hands of private men , who were not then reputed barons . So that I am satisfied that no barons have been fummoned to Parliament ratione te- nure only . Peers have . § 9. Of omiſſions in the fummons . It reſteth to ſpeak of omiffions in the ſummons , viz . of the temporal lords of Parliament ; not of the clergy , who never loft their right ; nor of the peers , who had : D2 ===== PAGE seq 74 ===== 52 Of Summons . had none but for life , ſave ad libitum re- gis . If the biſhop were dead , and the ſee void , yet ſummons were directed , Cuftodi spiritu- alitatis archiepifcopatus Cantuarienfis , fede vacante , & c . an . 7 E. 3. & alibi . If the biſhop were beyond the ſeas , yet ſummons were directed to him , prout an . 13 E. 3. R. Dunelm . epifcopo , vel ejus vica- rio generali , ipso epifcopo in remotis agente . & alibi . The reaſon is , they are præmunire clerum , & c . So that biſhops , dead or alive , are ever ſummoned , ratione epifcopalis dignitatis & tenure . And can the fame right be denied unto earls and barons ? ſurely no . The Par- liament is commune confilium : the whole land hath intereft therein . The commons appear there by their general procurators , the knights , citizens , and burgeſſes ; and the lords in perſon , or by their particular pro- curators ; and the prefence of the lords and commons is ſo neceffary , that no law can be ===== PAGE seq 75 ===== Of Summons . 53 be made , altered , or revoked without them . If a peer was ſummoned , he was not omitted during his life , as appears by all the ſummons ; for the king would not dif- honour him , whom he had honoured . The fame right which a peer had for life , a baron had of inheritance . The very crea- tion by inveſtiture of robes made it inherit- able , even to the heirs general ; otherwise , what needed Rich . 2. an . 11 , to limit by his letters patents , before the firſt writ of fum- mons , the barony of Kiderminster to the heirs males of the lord Beauchamp of Holt , who was created by inveſtiture of robes , as I have ſhewed before ? or Hen . 6. an . 27 , to limit , by the first writ of ſummons , the barony of Veffy unto the heirs male of the lord Bromflet ? I do not affirm that the husband , or fon , of an heir female ought to be called to Par- liament , but they have uſually been called . And if ſuch husband , after he had iſſue male , or fuch ſon , after the barony was de- D3 fcended ===== PAGE seq 76 ===== 54 Of Summons , ſcended on him , were called ( before they had no right ) they took place according to the antiquity of their ancestors , and were not new created , which ſhews the honour is inheritable . Nay , if the chief feat had been conveyed to the heir male , and he ſummoned to Par- liament , he took place according to the antiquity of the barony . And as the barons honour is inheritable , ſo their coming to Parliament hath ever been reckoned an eſſential point of inhe- ritable honour , as given them by the king at their firſt creation ( though not men- tioned , as now in their late charters ) . And to deny that unto any one that is due unto them all , is to diſhonour him whom the majefty of a king hath formerly honoured , whereof our kings have ever been very re- ligious ; witneſs the precedent of Roger de Quency , fecond fon to Sayer earl of Wine chester , whom Hen . 3. fummoned to the Parliament , ſuppoſing that Robert his elder ===== PAGE seq 77 ===== Of Summons . 55 elder brother , then in the holy land , had been dead , and would not afterwards dif- place him , when his elder brother returned , and petitioned for his right , becauſe he had been lawfully fummoned to Parliament , and there , and in other places had had place and voice , whereby ( faith the precedent ) the title of honour was settled as an inheritance in bim , and could not be taken from him . It was unjust , but yet to preferve the honour which the king had given him . There is another more pleaſing precedent of Mounthermer , whom Edw . 1. called to Parliament as earl of Gloucester , for that he had married the widow , and had a great part of the land ; but when Gilbert , the heir , came to age , and petitioned for his right , Edw . 2. granted it , yet ſummoned Mounthermer ever after as a baron ; ſo un- willing the king was to diſhonour him . Out of theſe precedents , and my obſervation of all the ſummons in general , which I have carefully peruſed , it appears plainly to me , that the lords have a double right to be fum- D4 ===== PAGE seq 78 ===== 56 . Of Summons . fummoned to the Parliament ; one gotten by long continuance and uſe , and another given by the king with their honour at their crea- tion ; neither can I find , having made dili- gent ſearch , that any baron hath been omit- ted , if he were of full age , ſtood rectus in curia , and were within the land ; unleſs he had ſo diminiſhed his revenues , as that he could not maintain the ſtate of his honour , whereof there are ſome few unpleaſing pre- cedents , which I will not recite . But the like precedents cannot be produced of any earl ; for at his creation the king gave him , for his maintenance , the third penny of the county , which could not be aliened . To proceed in the omiſſions . Earls and barons have been uſually omitted , if they have been out of the land , prout an . 10 E. 3. 29 Nov. fummons were directed Roberto de Ufford , com . Suff . Gilberto de Umfrevil , com . de Angus . Ranulpho de Dacre . Bartho . de Burghersh . Joh . de Seagrave . Egidio ===== PAGE seq 79 ===== Of Summons . 57 Egidio de Badlesmere . Radulpho de Nevil , Job . de Tiptoft . Richardo Talbott . Henrico de Percye . Radulpho de Stafford . Thome de Berkeley . Anthonio de Lucey . Et memorandum quod brevia iſtis magnati- bus immediate præfcriptis directa de eſſendo ad Parliamentum prædictum remiſſa fuerunt cancellario regis , pro eo quod quidam ex eis in partibus Scotia , & quidam ex eis in partibus transmarinis in obsequio regis existant , ad- nullanda . An . 46 Edw . 3. and in divers years of Hen . 5. few earls and barons were ſummoned , the king then being in his French wars ; and ſuch omiſſion was thought to be no difparagement to their honour . But now , fince the opinion that omif- ſion to be fummoned did loſe their right , hath been broached , by the not difcerning of peers from barons , every lord is careful to ===== PAGE seq 80 ===== 58 Of Summons . to be ſummoned , though he know he can- not appear , being beyond the feas . As when the lord Mountjoye was deputy in Ireland , an . 43 Eliz . he had his writ , and fent his proxy . Others have been omitted becauſe they did not ſtand rectus in curia . Either their title was litigious ; as was the earl of Arun- del's , an . 11 H. 6. and the late lord of Abergavenny's ; or they were reftrained of their liberty , being in the king's diſplea- fure ; as was the earl of Northumberland , an . 18 Jac . For then the writ of fummons is an enlargement by law , as was refolved by the judges . But I do not find by any antient prece- dent , that any had their writs denied them , for that they were in the king's diſpleaſure only . For an . 15 E. 3. the king was highly dif- pleaſed with the archbishop of Canterbury , yet he had his writ , and was preſent in Par- liament , and humbled himself unto the king , defiring to be tried by his peers . 2 An . ===== PAGE seq 81 ===== Of Summons . 59 An . 5 H. 4. the earl of Northumberland was ſummoned to the Parliament to be held at Coventry 3 December , notwithſtanding he was ſuſpected to be privy to the treaſon of Hotspur his fon . This Parliament was prorogued to craft . Hill . at Westminster . The prorogations were then by new writs , and the earl of Northum- berland had none ; yet he came to the Par- liament , exhibited his petition , wherein he acknowledged that he had done against his allegiance , and , namely , for gathering of power and giving of liveries against the ſtatute ; was tried by his peers , who ad- judged his action to be neither felony nor treaſon , but only a treſpaſs finable at the king's will ; which the king pardoned . Now of late , they which are in the king's diſpleaſure , have had their fummons , but with a letter from the lord chancellor , or ford keeper , not to come , but to fend a proxy . از But in the Parliament of the fixth of Fe- bruary , an . 1 Caroli R. the earl of Briftol being ===== PAGE seq 82 ===== ба Of Summons . being firſt denied his writ of fummons , pe titioned the Parliament for it . Then he had his writ without any interceffion of the Par- liament ; but withall , a letter from the lord keeper ſignifying his majesty's pleaſure , that he forbear to come , and ſend his proxy . Whereupon the earl petitioned the Parlia- ment again , ſhewing that that letter could not diſcharge him for not coming , the writ commanding him to come upon his alle- giance : but this point was not then decided , for the earl was preſently fent for as a de- linquent , and charged with treaſon . Whereas antiently , if the king's pleaſure were , that the party , who had his fummons , ſhould notwithstanding ſtay , and ſend his proxy , the fame was expreſſed in his writ ; prout , an . 6 E. 2. Cl . m . 11. The biſhops of Dur- ham and Carlisle were commanded to ſtay upon the defence of the marches of Scot- land , and to fend their proxies . But none were commanded antiently to forbear to come , and to ſend proxies , upon the king's difpleaſure . Omiffions ===== PAGE seq 83 ===== Of Summons . 61 Omiſſions ob minoritatem . There be many precedents for it , as of young Gilbert de Clare , earl of Gloucester , in the last years of Edw . 1. But the king hath ſent his writ of fummons unto ſuch , before they were fully twenty - one , being of years of difcretion , as the lord de la Ware , an . 20 Jacobi . An . 3 H. 6. John lord Roos , being then under age , is named to be preſent in Par- liament amongst other lords , n . 10. but his fummons is not entered . An . 11 H. 6. All the lords are ſworn to the ſtatute of retainers , made an . 8 H. 6 . and there it appears , that the duke of Nor- folk and the earl of Devonshire ( though un- der age ) were in Parliament in their places , and did take the faid oath , n . 15. yet nei- ther of their ſummons is entered that year . As the king hath not used to omit any lord , that hath been within the land , rectus in curia , and of full age , ſo no lord hath been used to come to Parliament , until he hath received his writ of fummons ; but in fuch cafe he may send to the lord chancellor for ===== PAGE seq 84 ===== 62 Of Summons . for his writ , as the earl marſhal delivered his opinion in the cafe between Nevill and Fane , anno Eliz . The reaſon may be , for that the lord chancellor's warrant is general . Vide the journal an . 49 Eliz . The Parlia ment began the 24th of October , and the earl of Effex came not , for that he received not his writ ( through the negligence of the meſſenger , faith the journal ) until the 18th of November . His lordſhip was then fick , and appeared not until the 11th of January following . And in the Parliament an . 18 Jacobi , the old earl of Hertford died , and his grand- child and heir came not to the Parliament , because he had not then received his writ . § 10. Of omiffions in the fummons to the great council . Although the kings of England have not omitted the earls and barons in the fum- mons to Parliament , unleſs for the caufes 5 aforesaid , ===== PAGE seq 85 ===== Of Summons . 63 aforeſaid , yet they have uſually omitted di vers of them in the ſummons to the great council , prout in the ſummons , an . 9 E. 3 . 23 Feb. the king ſummoned but five earls and eleven barons . • An . 14 E. 3. 14 Oft . but twenty - four , biſhops , abbots , earls , barons , and others . An . 15 E. 3. 12 Jun . but twenty - fix of all forts . An . 16 E. 3. 12 Sept. & eodem anno 20 Nov. were fummoned but a very few . An . 21 E. 3. but twenty - two of all forts . An . 45 E. 3. but thirteen earls and ba- rons ; and ſo in divers years of Edw . 3 . Neither did Edw . 2. ſummon them all . After Edw . 3. the ſummons to the great council was under the privy ſeal , and fo not recorded . The reaſon of theſe omiſſions may be , for that the great council not being commune confilium , as the Parliament is , the chancel- lor was appointed whom he ſhould fum- mon , and had not a general warrant ; prout an . 15 E. 3. the 12 Junii , the writs being : : fealed ===== PAGE seq 86 ===== 64 Of Summons . ſealed of that date , others were made , and this note underwritten ; viz . Memorandum , quod ifta brevia confignata fuerunt 3 die Julii . Vide with Sir Robert Cotton a warrant for ſummons to the great council , an . 36 & 38 H. 6. on this manner . First , the form of the writ ; then the names of fuch lords who were to be ſummoned ; and underneath thus : Rex de avisamento confilii fui voluit & mandavit cuſtodi privati figilli fui quod li- teras feparales fub eodem figillo faceret domi- nis fupradictis dirigendas , in forma prædicta . Signed by the clerk , Tho : Kent . § II . Of amiſſions of fons of peers . There rests one doubt yet to be ſatisfied , viz . the king's warrant to the chancellor being general , how came it to paſs that the fons of peers were omitted ? I anſwer , the words of the warrant are to make fuch writs as are usual , and the ufe ===== PAGE seq 87 ===== Of Summons . 65 uſe was to omit the fons of peers , without ſpecial direction from the king . § 12. Omiſſion of the husband of an heir female . Where the barony deſcends unto an heir female , the husband of ſuch hath been omitted , until he hath iſſue male by her , and be admitted upon his petition of right unto the king , quia , the uſe hath been ſo : yet , being admitted and ſummoned , he ta- keth place according to the antiquity of that barony . I ſpeak of barons by creation of inveſtiture and writ only , without any pa- tent : and this ſhews plainly , that a baron ſo created and ſummoned , his honour is inheritable . It may be objected , that fome baronies have deſcended unto an heir female , and her husband and poſterity ever after omit- ted . And fome baronies have deſcended unto two ſiſters or more , and the husband E of ===== PAGE seq 88 ===== 66 Of Summons . of the elder ſiſter wholly omitted , and the husband of the younger fummoned ; ergo , ſuch honour is not inheritable , but during the iſſue male . I anſwer , this may happen upon divers occafions : for , firſt , beſides the deſcent of honour , a certain number of knights fees ought to defcend alſo for the maintenance thereof . 2dly , The husband cannot be ſummoned de jure , until he hath iſſue male , and peti- tioned for it . " 3dly , If the husband neglect his peti- tion , the iſſue male is to make his claim by petition to the king . If any of theſe fail , the omiſſion is juft ; and yet the honour is inheritable to the heir female ; otherwife , how could Sir Humphrey Bourchier , who married the younger daugh- ter of the lord Cromwell , be admitted unto the antient place of that barony ? § 13 . ===== PAGE seq 89 ===== Of Summons . 67 § 13. The form of the feveral writs of Summons at this day . : An . 18 Jac . Jacobus , Dei gratia , Angliæ , Scotia , Francia , & Hiberniæ rex , fidei de- fenfor , & c . Prachariſſimo filio noftro Carolo , natu fecundo , modo unico & primogenito , principi Walliæ , duci Cornubia & Ebor . & comiti Ceftriæ , falutem . Quia de avisamento & affenfu confilii nostri pro quibufdam arduis negotiis , nos , ſtatum , defenfionem regni noftri Angliæ & ecclefiæ Anglicanæ concernent . quoddam Parliamentum noftrum apud civita- tem noftram Weſtminſter ſexto decimo die Ja- nuarii prox . futur . teneri ordinavimus , & ibidem cum vobis ac cum prælatis , magnati- bus , & proceribus difti regni noftri colloquium habere & tractatum : vobis in fide & legian- tia quibus nobis tenemini firmiter injungendo mandamus , quod confideratis dictorum negotio- rum arduitate , & periculis imminentibus , cef- Sante excusatione quacunque , dift . die & loco perfonaliter interfitis nobifc . & cum prælatis , E2 magna- ===== PAGE seq 90 ===== 68 Of Summons . magnatibus , & proceribus prædict . fuper dic- tis negotiis tractaturi veſtrumq ; confilium im- pensuri . Et hoc , ficut nos & honorem noftrum , ac ſalvationem & defenfionem regni nostri & ec- clefiæ prædict . expeditionemq ; dictor . negotior . diligitis , nullatenus omittatis . Teſte meipso . apud Westminſt . 13 die Novemb . anno regni noftri Angliæ , Francia , & Hiberniæ decimo ortavo , & Scotiæ quinquagefimo quarto . Jacob . Dei gratia , & c . Prechariſſimo con- fanguineo fuo , Georgio , marchioni Bucking . magn . admiral . Anglia , falutem . Quia de avisamento , & c . Jacobus , Dei gratia , & c . Chariſſimo con- Sanguineo fuo Carolo , comiti Nottingh . Jalu- tem . Quia de avisamento , & c . * An . 19 Jac . Jacobus , Dei gratia , & c . Prediletto & fideli noftro Lionello Cranfield , de Cranfield , Chr . & c . Cum nuper de avifa- mento , & affenfu confilii nostri , pro quibufd . arduis & urgentib . negotiis , nos , statum & defenfionem regni nostri Angl . & ecclefiæ An- * This ſummons was ſent during the Parliament . glican . ===== PAGE seq 91 ===== Of Summons . 69 glican . concernent . præfens Parliamen . no- ſtrum apud civitatem nostram Weſtminſt . Sexto decimo die Januarii ultimo præterito te- neri ordinavim . & ibid . cum prælatis , mag- natib . & procerib . difli regni noſtri colloqu . haber . & tractat . vobis fub fide & legiantia , quibus nobis tenemini , firmiter injungendo mandamus , quod confideratis dictor . negotior . arduitate & periculis imminentib . ceffante ex- cusatione quacunq ; quarto decimo die inſtantis menfis Novemb , ad præfens Parl . nostrum perfonaliter interfitis , & c . R. prædilect . & fideli noſt . Edwardo Moun- tague de Boughton , Chr . Salutem . Confimile . An . 18 Jac . Jacob . Dei grat . & c . Hen- rico Grey de Groby , Chr . falutem . Quia de avisamento & affenfu , & c . An . 21 Jac . R. prædileft . & fideli fua Francisco Ruffell , bar . de le Thornhoughe , Chr . falutem . Jacob . Dei gratia , & c . Reverendiſſimo in Chrifto patri , Tobie , archiepifc . Ebor . An- gliæ primat . & metropolitano , Salut . Quia de avisamento , & c . E3 Jacob . ===== PAGE seq 92 ===== 70 Of Summons . Jacob . Dei gratia , & c . Reverendo in Chri- Sto patri , Jo . epifc . Sarum , falutem . Cum nu- per de avisamento , & c . § 14. The form of the antient writ for the election of the knights , citizens , and burgeffes . An . 5 E. 3. 18 Feb. Rex vicecomiti Ebor . falutem . Quia propter quædam magna & ar- dua negotia nos & ducatum nostrum Aquita- niæ ac alias terras noftras in partibus trans- marinis , pro quibus ad eafdem partes nuper folemnes nuncios nostros deſtinaverimus , con- tingentia , quæ in ultimo Parliam . noftro ob aliquas certas caufas terminari non potuerunt , Parliament . noftrum apud Westminſt . die lunæ in craft . quindene Pafchæ prox . futur . tenere , & cum prælatis , magnatib . & proce- rib . dicti nost . regni ordinavimus habere col- loq ; & tractat . tibi præcipimus , firmiter in- jungentes , quod de dicto com . duos milites & de qualib . civitate com . illius duos cives , & de quolibet burgo duos burgenfes , de difcretio- ribu , ===== PAGE seq 93 ===== Of Summons . 71 ribus & ad laborandum potentiorib . eligi , & eos ad dictum diem & locum venire faciatis . Ita quod milites plenam & fufficientem poteftat . pro se & communitat.com . prædi & t . & dicti cives & burgenfes pro ſe & communitat . civitat . & burgorum diviſim , ab ipfis habe- ant , ad faciend . & confentiend . iis quæ tunc de communi confilio ( favente Deo ) ordinari contigerint fuper negotiis ante dictis . Ita quod pro defect . hujusmodi potestatis difta negotia infecta non remaneant quovis modo ; & ha beas ibid . nomina predictorum militum , ci- vium , & burgenfum , & hoc breve , & hoc ficut nos & honorem noftrum & tranquillita- tem & quietem dicti regni diligitis , nullatenus omittatis , & c . Teste , & c . Per ipsum regem . I have recited this writ at large , as it may appear , that the writ for the commons was ſometimes ſpecial , declaring the cauſe of fummons , as well as the fummons to the lords . Therein the writs did agree ; but the commons had not any power of themſelves , but from the county , city , or borough that ſent them . L E4 The ===== PAGE seq 94 ===== 72 Of Summons . The like writ was fent , Constabulario Do- ver & cuftodi Quinq ; Portuum , for the elec- tion of two barons out of every port , & c . An . 49 H. 3. a writ went to every ſheriff to cauſe two knights to be chofen out of every county ; and other writs went to each city and borough - town ; not to the mayor or bailiff , but civibus & burgienfibus , to ſend two citizens , & c . And other writs went baronibus & probis bominibus Quinq ; Portuum , It is worth the labour to ſearch when , and upon what occaſions , the writs altered . § 15. Additions to the antient writ of election . An . 13 E. 3. 25 Aug. The writ of elec- tion agreed with that of 5 Edw . 3 . But when the commons gave their anſwer touching the ſubſidy demanded for the wars , they defired leave to return into the coun- try to confer with their neighbours , pro- miſing their endeavours for the fame at the next ===== PAGE seq 95 ===== Of Summons . 73 next Parliament : and withall , defired that the writ to the ſheriffs for election of the knights might have this clauſe , viz . Que deux mielz vauez chivalers de countez foient efſluz & envoiez al prochein Parlement pur la commune , fi que nul de eux ne ſoit viſcount ne autre minister , n . 8 . Which was thus far agreed on ; viz . Item , que foit compris en les briefes du fu- mons du dit Parliament , directz as viscounts , que deux chivalers ceynet des eſpees de chefcun countie foient eſluz pur estre en mesme le Parl . n . 22 . And thereupon the next writ had this clauſe ; viz . Tibi precipimus , & c . quod de dicto comitatu duos milites gladiis cinctos , & c . which continues to this day . An . 46 E. 3. An ordinance was made , that neither lawyers nor ſheriffs ſhould be returned knights of the ſhire , but knights and ſerjeants of the beſt worth in the county , and choſen in full county ; yet the writ re- ceived an addition touching the ſheriffs only , which continues unto this day ; viz . Nolumus ===== PAGE seq 96 ===== 74 Of Summons . Nolumus autem quod tu , nec aliquis alius vicecomes , & c . An . 5 H. 4. 25 Aug. the writ had this clauſe ; viz . Nolumus autem quod tu , seu aliquis alius vicecomes regni nostri prædicti , aut apprenti- tius , feu aliquis alius homo ad legem aliqua- liter fit electus , & c . Whence it was called ( merrily ) the lay man's Parliament . An . 7 & 8 H. 4. n . 139. it was enacted , at the petition of the commons , that pro- clamation be firſt made in the next county- court after the ſheriff hath received the writ of election to be made , & c . That the elec- tion be in full county , wherein they ſhall proceed freely and indifferently , notwith- ſtanding any prayer or commandment to the contrary ; That the names of the knights choſen , whether preſent or abfent , be ſet down in indenture under the feals of all them that did elect them . And ===== PAGE seq 97 ===== Of Summons . 75 And this clauſe was added to the writ ; Et electionem tuam in pleno comitatu tuo fac- tam distincte & aperte fub figillo tuo & figil- lis eorum qui electioni illi interfuerint , nobis in cancellaria nostra ad diem & locum in brevi contentum certifices indilate , n . 14 . An . 11 H. 4. n . 59. At the petition of the commons , it was enacted , that all ſhe- riffs that ſhall make returns contrary to the ſtatute of 7 Hen . 4. ſhall forfeit 100 % . to the king , and the knight ſo choſen ſhall lofe his wages , cap . 1. Note , the ſtatute doth not fay that the return ſhall be void , and the ſheriff , upon a new writ , proceed to a new election , as the practice is now with the commons . An . 1 H. 5. At the petition of the com- mons , it was enacted , that none ſhall be choſen knight , citizen , or burgeſs , but ſuch as ſhall be refiant , and ſhall be choſen by ſuch as are refiant alſo , n . 20. cap . 1 . An . 8 H. 6. it is likewife enacted , that none but refiants ſhall be chofen , by refiants that can diſpend 40s . per annum freehold ; 4 That ===== PAGE seq 98 ===== 76 Of Summons . That the ſheriff may examine the freeholder upon oath , how much he may diſpend by the year . The juftices of peace ſhall have power to inquire hereof . If the ſheriff be attainted for doing otherwise , he ſhall for- feit 1001. and be imprisoned ; and the knights returned otherwiſe ſhall loſe their wages . Note , it doth not ſay the election ſhall be void . And mention ſhall be made of this ordinance in every writ hereafter , n . 39. cap . 7 . An . 10 H. 6. n . 33. The ſtatute of 8 H. 6. cap . 7. is confirmed and explained , that the election ſhall be by refiants of 40s . per ann . freehold at the leaſt , cap . 2. But men- tion is not made in the writs of the ordi- nance an . 8 H. 6 . An . 23 H. 6. n . 48. The ſtatute of the 1 H. 5. & 8 H. 6. are confirmed , and it is enacted , that the ſheriff , when he hath re- ceived the writ , ſhall direct a precept under his feal to the mayor and bailiffs of cities and boroughs , commanding them to chooſe citizens and burgeſſes of the ſame cities and burghs ; ===== PAGE seq 99 ===== Of Summons . 77 burghs ; That the mayor and bailiffs return the faid precepts executed to the ſheriff by indenture between them and the ſaid ſheriff to be made . And the ſheriff ſhall make re- turn of the writ , and of the faid returns of the mayors and bailiffs , upon pain contained in the ſtatute of the 8th of Hen . 6. cap . 7 . And moreover the ſheriff ſhall pay to every knight , citizen , and burgeſs ſo chofen , and not returned by him , 100l . And if the mayors and bailiffs ſhall return others than are ſo chofen , they ſhall forfeit to the king 401. and to the party chofen , and not re- turned , 40 l . Note , it doth not ſay the re- turn ſhall be void . And every ſheriff ſhall make due elections of the knights in full county between eight and nine in the fore- noon without colluſion , and make true re- turns , upon pain to forfeit 1001. to the king , and another 100 % . to the party that will fue for the ſame ; provided that the knights , citizens , and burgeſſes ſue within three months for their forfeitures : and if any knight , citizen , or burgeſs , duly re- turned ===== PAGE seq 100 ===== 78 Of Summons . turned by the ſheriff , be afterwards put out , and another put in his place , if he that is put in his place take it upon him , he ſhall forfeit to the king 100 l . and to the party ſo put out another 100l . pro- vided it be fued for within three months . Note , it doth not ſay there ſhall be a new election . The knights ſhall be notableknights of the ſame county , or ſuch eſquires , or gentlemen of the fame county , as are able to be knights . No man to be knight of the ſhire which ſtandeth in the degree of a yeoman . This is the laſt ſtatute for the election of the commons . : § 16. Who are not to be chosen . An . 46 E. 3. n . 13. It was ordained by Parliament , that no sheriffs shall be returned nor accepted for knights of the ſhires , which ordinance hath been conſtantly obſerved ever fince , and by the fame ftatute it was or- dained alſo , that no lawyers , who follicited Suites ===== PAGE seq 101 ===== Of Summons . 79 fuites for other men , ſhould be returned , or accepted for knights of the shires ; but the king willeth , that knights and ferjeants of the best esteem in the country be hereafter re- turned knights in the Parliament . An . 23 H. 6. cap . 15. It is enacted , that none shall be chosen knight of the ſhire which Standeth in the degree of a yeoman . § 17. Who are to be exempted ( if they please ) from ferving in the house of commons . Knights bannerets ( which name is ſome- times given to the peers ) uſed not antiently to ferve in the houſe of commons , for that the king might , and did often , fummon fuch to the Parliament as a lord's peer , and fo had his ſervice in the upper house . That they were uſually fummoned , it is declared before . That they were exempted to ferve in the houſe of commons , appears by the king's writ directed to the ſheriff of Surrey for a new election in loco Thome Ca- moys , ===== PAGE seq 102 ===== 80 Of Summons . moys , Chr . banneretti . The reason is there fet down ; Nos animadvertentes quod hujuf- modi banneretti ante hæc tempora in milites comitat . eligi ratione alicujus Parliamenti mi- nime confueverunt . 8 Octob . an . 7 R. 2. Cl . m . 32. dorfo . And Rich . 2. did afterwards ſummon the faid Tho . Camoys to Parliament . The king's fervants have had the ſame privilege of exemption . This appears by the like writ for a new election in the place of James Berners , whom the king commanded to be diſchar- ged , Quia est de retinentia regis , & famili- aris & unus militum cameræ regis . Ib . an . 7 R. 2. 18 October . The prince's ſervants , and the queen's fer- vants , might claim the like privileges , And no doubt but they had the like pri- vilege ; as may be gathered out of another writ of the fame 7th year of Rich . 2. dated the 16th of Octob . for the diſcharge of Tho- mas Morwell ; Quia est de retinentia , charif- fime dominæ & matris noftræ Johannæ prin- cipiſſa 1 ===== PAGE seq 103 ===== Of Summons . 81 tipiſſe Wallia . But this was in thoſe antient times , when men thought it a burden to come and ſerve in Parliament . Even divers of the lords themselves obtained licence to be abſent , and not to ſerve during their lives . Prout an . 1 E. 4. pat . 1. m . 15. Rex conceffit H. Bromflet , domino Veſſfy , quod ipse , durante vita , fit exoneratus de veniendo ad Parliamenta & confilia regis , quodque fi ali- qua ſiniſtra informatio regi aut confilio fuo fuerit exhibita verfus præfatum H. tunc ipſe per confilium fuum refponfioni fuæ inde admitti valeat , aliquo brevi feu mandato regis in contrarium facto non obſtante , & c . Confimile , pro domino Beauchamp , an . 2 E. 4 . pat . 2. m . 10. Confimilia , pro Johanne de Warrene , comite Surrey , an . 20 E. 3. pat . 1 . & pro Jacobo de Audle de Helegh , an . 27 E. 3. pat . 1. m . 13 . And the king's tenants in antient demefn ever enjoyed this privilege , prout Fitzher- bert , tit . Parliamentum , n . 99 & 101 . But now they claim no fuch exemption : neither do the king's fervants enjoy their antient F ===== PAGE seq 104 ===== 82 Of Summons . antient privileges therein , being now uſually chofen for knights and burgeſſes , ever ſince cardinal Woolfey had the great feal ; fince which time the commons do enjoy more privileges than they claimed before . Yet there are precedents , that if any , being firſt chofen into the houſe of com- mons , become afterwards the king's ſervant during the fame Parliament , and fummoned by writ to ſerve in the upper house , that he ought to be remanded back again to the commons houſe , prout , Mr. Rich . Onslow , being of the lower houſe , an . 5 Eliz . and the Parliament being often prorogued until an . 8 Eliz . he was in the interim made the queen's ſollicitor , and by writ called to ferve in the upper house . The ſpeaker alfo died in the interim . The commons petitior.ing for leave to choose a new ſpeaker , Mr. Onslow , being ſent to them by two of the upper house ( I ſuppoſe , by two of the attendants ) was choſen their ſpeaker ; but the houſe was divided in opi- nion . An . ===== PAGE seq 105 ===== Of Summons . 83 An . 18 Eliz . Mr. Serjeant Jeffery ( being choſen knight for Sufſſex ) was in the interim of a prorogation made the queen's ſerjeant , and called into the upper house by writ . Reſolved by the commons the 7th of Feb. That according to former precedents he ought to serve in the house of commons . An . 23 Eliz . The houſe of commons be- ing met the 16th of January ( unto which day the Parliament was prorogued ) Sir Ro- bert Bell their late fpeaker being dead , the commons petitioned for leave to chooſe a new speaker ; and receiving anſwer for the fame in the upper house , at their return Mr. Treafurer reported , that he had feen a member of their houſe with the lords ; viz . Mr. Popham ( who had ferved in the begin- ing of that Parliament as citizen for Bristol , and in the interim was chofen the queen's follicitor , and called by writ to the upper houſe ) and moved , that he might be re- manded ; which ſome thought not needful before he be choſen : ( it ſhould feem they knew he was to be chofen their ſpeaker ) yet upon F2 ===== PAGE seq 106 ===== 84 Of Summons . upon reading of the precedent of Mr. On- Ποω , an . 8 Eliz . the ſaid Mr. Treaſurer and others were fent up to the lords to demand Mr. Popham . Anſwered , That the lords had resolved he should be sent down , the rather because he was a member of the house of com- mons , and they poſſeſſed of him before he was follicitor , or bad any place of attendance in the higher house . And Mr. Anderson , the queen's ſerjeant at law , and Sir Gilbert Gerrard , the queen's attorney general , brought him the ſaid Mr. Popham , and restored him to the houſe of commons . Here I have recited three precedents . You may eafily ſee the reason why theſe were remanded ; viz . The queen had re- folved to have them choſen ſpeakers , and not for that the commons had any right otherwise to demand them . If Bell their ſpeaker had lived , being made lord chief baron in the interim of the prorogation , I doubt whether they would have de- manded him or no . If it should hold for a rule , ===== PAGE seq 107 ===== Of Summons . 85 a rule , that the king cannot ſummon a member of the house of commons unto the upper houſe , then thoſe lords who were burgeſſes an . 18 Jacobi , and created barons in the interim of the prorogation , viz , the lord Brook and Cranfield , might have been demanded alſo : compare theſe three prece- dents with thoſe three of 7 Rich . 2. and note , that volenti non fit injuria . F3 CHAP ===== PAGE seq 108 ===== [ 86 ] CHAP . II . OF APPEARANCE . § 1. The appearance the first day of the Parliament . F IRST , let us conſider which is the firſt day of the Parliament ; then their manner of appearance . The writ ſhews the day whereon the Par- liament is to begin : and antiently , though the king and but a few of the lords ap- peared there , and the Parliament was ad- journed in expectance of the reſt , yet that was reckoned the first day of the Parlia- ment , if his majesty were preſent , prout 6 E. 3. octabis Sancti Hillarii ; 14 E. 3. in Lent ; 15 E. 3. 15 Pafch . and divers other Parliaments of his time and his fucceſſor's . R. 2 . 2 If ===== PAGE seq 109 ===== Of Appearance . 87 If the Parliament be prorogued , for that the king cannot intend it the ſame day , new writs of ſummons were ſent out anti- ently , and another day appointed , prout , An . 23 E. 1. 2 Novemb . an . 33 E. 1 . 13 Julii , an . 11 E. 2. 3 Martii , an . 6 E. 3 . 11 Decemb . & c . At this day , if the Parliament be ſum- moned , the day is appointed in the writs , but if the ſame be prorogued by writ pa- tent ( as the manner is now ) and another day appointed , that is reckoned the firſt day when the king is preſent , and the cauſe of fummons declared . Of this the precedents happen ſo daily , I need not recite any . This may be a rule ; that that is the firſt day of the Parliament , when the king him- ſelf is firſt preſent ; and this agrees both with the antient and modern times . No records ſpeak of ſuch folemnity as is uſed at this day ; neither could it be with that ſtate , the king lying in the ſame houſe , F4 and ===== PAGE seq 110 ===== 88 Of Appearance . and his lodgings near the fame rooms where the Parliament was kept . And it plainly appears by many records of Edw . 3. that on the first day of the Par- liament a proclamation was made in West- minster - hall ( the record ſays , feuft crie fait ) by the king's commandment , That all they who were fummoned to Parliament ſhould repair to the painted chamber ; and ſo the Parliament began ; that being reckoned the firſt day , though ſo few appeared that it was adjourned to another day in expecta- tion of the reſt , prout an . 37 , 38. 40. 43 . 45. 47 & 50 Ε . 3. Here could be no fo- lemn proceſſion to the Parliament in ſuch ſtate as is now uſed . But here may be a queſtion , how it ſhould be known who were fummoned ? by which word was antiently understood the commons as well as the lords and peers . I anſwer , the commons were called by the returns of the ſheriffs ; the lords were admitted in appearing in their robes , and , as ===== PAGE seq 111 ===== Of Appearance . 89 as I gueſs , delivering their writs ; the peers delivering their writs only , for they had not any robes , not being created by inveſtiture as the earls and barons were ; ( prout , in the former chapter ) and then they were all called in the houſe by the clerk's roll before the king came . That the lords were called , may be inferred by this , that the Parlia- ments have been often adjourned the firſt day , becauſe they were not all come , which could not otherwise be known but by the call ; ſo that they were called before it was adjourned : and it appears they were called the firſt day before the king came , by the Parliament of 18 Edw . 3. n . 5. which Par- liament was adjourned alſo the firſt day for lack of appearance ; and after the adjourn- ment , and after the names of the receivers and triers of petitions , there is entered this memorandum , viz . Item , Let the names of the lords who are Summoned to Parliament be viewed , read , and examined before the king in Parliament this day , to see what lords are come , and what not ; ===== PAGE seq 112 ===== १० Of Appearance . not ; and of them that are not come , let their names be delivered to the king in writing to ordain fuck punishment as he shall please ; which ſhews plainly , that the king was not preſent before when the lords were called , for then this had been needleſs . The next doubt is , in what place the commons were called . The record of 7 Rich . 2. faith , that the knights and bur- geſſes were called in , by name , in presence of the king ; which ſhews they ſtaid without till then . An . 2 H. 4. They were called , by name , in the chancery in Westminster - hall , before the chancellor and steward of the king's house . An . 4 H. 4. Confimile . An . 13 H. 4. The knights and burgeſſes were called at the door of the painted cham- ber , in the presence of the steward of the king's house , as the manner is . And , at this day , they are called by their names by the clerk of the crown , in the prefence of the lord ſteward , in the court of ===== PAGE seq 113 ===== Of Appearance . 91 of requests , whereof there are many prece- dents in queen Elizabeth's time . Only one precedent differs from all the latter , viz . that of the 33d of Hen . 8. primo die Parliamenti , where the duke of Suffolk , then lord ſteward , commanded the clerk of the Parliament to read the names of the commons , unto which every one anſwered , they being all in the upper houſe below the bar ; and then the king came . Now fince the fifth year of queen Eliza- beth the commons take the oath of fupre- macy ; and ſince the third year of king James they take the oath of allegiance alſo , which the lord ſteward adminiſters unto fome , and appoints certain of them his de- puties to give the fame unto the reſt . The lords are not now called the firſt day , but have uſed to deliver their writs only to the clerk ; and the third day of the Parliament ( the ſummons being declared the firſt , and the ſpeaker preſented by the com- mons the ſecond day ) the lords are called by the clerk , beginning with the loweſt ba ron , ===== PAGE seq 114 ===== 92 Of Appearance . ron , and ſo afcending to the highest , and the proxies or other excuſes ( if any ) of the abſent lords regiſtered . Here I must confefs one of my own errata : for being fuddenly commanded to call the houſe , an . 21 Jac . and unprovided of a catalogue of their names , I made uſe of one then delivered me by the earl marſhal , and began at the upper end with the prince , and ſo deſcended . I quickly found mine own error , but none elſe perceiving it , I proceeded ; which I ob- ſerve here , left my ſucceſſors miſtake alſo by that precedent . § 2. When the lords appear in their robes . The heralds can give the beſt ſatisfaction when the king and the lords did firſt go to the Parliament in ſuch folemn manner as now . I have a precedent thereof in my uncle Boyer's collections of honour and arms . I doubt not but the lords did ever appear in their robes the firſt day ; whereof we ===== PAGE seq 115 ===== Of Appearance . 93 we have no Parliament records before the journal books of Hen . 8. all the former be- ing loft . The lords appear in their robes alſo when- foever the king is preſent ( if their lordſhips have notice thereof ) and when their lord- ſhips give judgment ; and when the king gives the royal aſſent to any one bill or more by his letters patents , or ſends a com- miffion to adjourn , prorogue , or diffolve the Parliament . And in thoſe caſes the lords fit all in their due places until the commiſſion be read , and then the lords commiffioners are to fit on forms , overthwart the upper end of the houſe , to execute their commiſſion . Note , this is to be understood of fuch adjournments , & c . by commiſſion , as the king himself hath uſed to be preſent at in perſon , viz . of adjournments , prorogations , or diſſolutions of Parliament , fedente curia . But if the Parliament be adjourned or pro- rogued , fedente curia , and afterwards the king by proclamation prorogue the fame to ===== PAGE seq 116 ===== 94 Of Appearance . to a further day ( which happens often ) in thoſe cafes the lords commiffioners appear not in their robes , for that the king him- ſelf never uſed to be preſent at ſuch ad- journment in perſon . If a lord of Parliament , either by the miſpriſion of the clerk or otherwise , be not ranked in his due place , and complains thereof , the houſe appoints a committee to fearch the records for his due place , where- unto he is admitted without any other cere- mony , for that he is in the houſe already ; prout The earl of Surrey , an . 6 H. 8. 15 Feb. The lord Morley , an . 25 H. 8. 24 Martii . The lord Clinton and Stafford , an . 4 & 5 Ph . & M. 12 Feb. But if the lord that is ſummoned doth forbear to come , becauſe he is not ranked in his right place ; his claim is firſt to be decided by the houſe , upon his petition to the king ; and then his lordſhip is to be brought in his robes between two lords in their robes alſo , the king of arms going before , ===== PAGE seq 117 ===== Of Appearance . 95 before , prout the lord de la War , an . 39 Eliz . 24 Octob . 15 & 24 Novemb . If a lord of Parliament dies in the inte- rim of a prorogation , and his fon receives his writ to appear at the next feffion , his lordſhip appeareth not in his robes ( for that ceremony was performed by his father the firſt day of the Parliament ) ; only he delivers his writ to the clerk , who enters it the fame day ; prout , an . 7 Jac . Richardus com . Dor- fet . And there be very many precedents of this nature ; viz . that the writ is only re- corded in fuch cafes , and not a word of their appearance in robes . And it were very fit the lords did con- tinue this order to deliver their firſt writs to the clerk to be entered ; for it records their pedigree as well as the time of their firſt coming to Parliament . If a lord of Parliament dies , ſedente cu- ria , and his heir be fummoned , he appears alſo without any ceremony ; only his firſt writ is entered , the day of his appearance , prout , an . 27 Eliz . 9 Feb. Tho . dom . Darcy de ===== PAGE seq 118 ===== 96 Of Appearance . de Chiche ; and there be many precedents of this nature alfo . And I remember well , that the lord Stan- hop of Harrington dying , fedente curia , in the Parliament of 18 Jacob . his ſon Charles , lord Stanhop , came and took his due place without any other ceremony : So did Edward earl of Dorset after the death of his brother Richard , who died without iſſue male in the Parliament 21 Jac . And I have obſerved , that a biſhop hath often been fummoned after the Parliament is begun , in place of another biſhop who was dead , and only delivered his writ to the clerk to be entered , without any other cere- mony ; which was obſerved alſo in former time , prout an . 27 Eliz . 23 and 26 March , Epifc . Petriburgi . If the eldest fon of an earl be fummoned as a baron , after the Parliament is begun , he is to be brought in his robes between thoſe two lords between whom he is to fit , garter going with his coat half way on upon his left arm ; and his lordſhip is to preſent his ===== PAGE seq 119 ===== Of Appearance . 97 his writ to the lord chancellor , and to ſtay by his woolfack , until the clerk hath read the fame , and then to be placed by thoſe two lords in his due place . Vide a precedent of this , an . 7 Jac . the lord Clinton , the eldest fon of the earl of Lincoln , who delivered his writ kneeling to the lord chancellor , and ſtood by him until it was read . And I remember well , that the old earl his father was very careful , both for the right place of his fon and the antient cere- monies to be uſed at his firſt appearance . Eodem an . 7 Jac . Confimile the lord Wal- den . The reason why garter is to wear his coat but half way on is , for that his lordſhip is in expectance of an earldom , when garter is to do him further ſervice , and to wear his coat wholly on . If a lord be newly created during the Parliament , he is brought in by any two lords of the fame form in their robes , garter going before with his coat wholly on ; and G his ===== PAGE seq 120 ===== 98 Of Appearance . his lordſhip is to preſent his writ to the lord chancellor , which being read , he is con- ducted to his place by thoſe two lords who brought him , garter going before , prout , The lord Denny , an . 2 Jac . 7 Febr . And the lord Knyvet , an . 4 Jac . 4 Julii . Yet in the Parliament an . 18 Jac . 20 Νοv . the viſcount Colchester being newly created in the interim of the adjournment of that Parliament , and brought in at the next ac- cefs , garter king at arms carried the letters patents , and preſented the fame to the lord keeper , and his lordſhip delivered them to the viſcount , and ſo immediately he was placed . So was the lord viſcount Rochford brought in the fame day ; and ſo alſo were the lords Brook , Mountague , and Cranfield , being all new - created barons . Quære ration . why they preſented not the writs , according to the antient manner ? 3 An . ===== PAGE seq 121 ===== Of Appearance . 99 An . 21 Jac . 25 Feb. divers lords who were newly created , and others who were in by deſcent , and were then firſt ſummoned , they all having appeared the firſt day of the Parliament in their robes , were notwith- ſtanding brought in the fifth day of the Parliament with the fame ceremonies as be- long to a lord , newly created after the Par- liament is begun , when he firſt appears ; the earl marſhal being preſent , and direct- ing the fame . The names of the faid lords , viz . George , duke of Buckingham , created a duke before the Parliament began . Henry , earl of Kent , came in by deſcent . Fames , earl of Carlisle , by new creation . Lyonell , earl of Middlesex , by new creation . Christopher , earl of Anglesey , by new crea- tion . William , earl of Denbigh , by new creation . G2 Thomas , ===== PAGE seq 122 ===== 100 Of Appearance . Thomas , viſcount Andover , by new creation Henry , lord de la Ware , by deſcent . Lord Barkley , by defcent . Robert , lord Cary of Lepington , by new creation . And William , lord Grey of Warke , by new creation . CHAP . ===== PAGE seq 123 ===== [ IOI ] CHAP . III . LOCUS ET MODUS SEDENDI . IT T follows to ſhew in what place they meet , and the manner of their fitting . §1 . Whether the lords and commons did antiently fit in one room together . Vide the antient manuſcript Modus tenendi Parliamentum , cap . de Caf . & Iud . diffici- libus . Cum dubitatio & cafus difficilis pacis vel guerre emergat , & c . injungatur per regem , feu ex parte regis , fi rex non interfit , cuilibet graduum parium , quod quilibet graduum fe- deat per fe , & liberetur cafus ille clerico fuo in fcriptis , & in certo loco recitari faciant , ita quod ipfi confiderent inter ſe qualiter me- lius & juftius procedi poterit in cafu illo , & c . G3 With ===== PAGE seq 124 ===== 102 Locus & Modus Sedendi . With this agrees that of the 6 Edw . 3 . at the Parliament held at York , viz . The cauſe of fummons being touching Scotland , the prelates , with the clergy , treated thereof by themselves ; the earls and barons by themselves ; and the com- mons by themſelves ; and afterwards they delivered their joint anſwer to the king . In the former Parliament of that year at Westminster , craftino Mariæ , the cauſe was touching Ireland : the prelates confulted by themſelves , the lords by themſelves , and the commons by themselves ; and after they gave a joint anfwer , and they all joined in one grant of a ſubſidy to the king . An . 6 E. 3. oftabis Hillarii , the prelates treated by themselves ; fo did the lords , and ſo did the commons ; and afterwards their joint anſwer was reported to the king by the bishop of Winchester . By theſe precedents it appears plainly , that the lords and commons did firſt meet together in one room , and yet had divers rooms to confult in , ſeverally and apart . But ===== PAGE seq 125 ===== Locus & Modus Sedendi . 103 1 But this doth not directly and plainly prove , that the lords and commons did fit together in one room . But if we confider well the paſſages of the Parliament of 14 Edw . 3. in Lent , it will ſeem that the lords and commons did then fit together in one room , viz . The cause of fummons was declared to them all together , touching an aid for the king ; they confidered thereof , and joined in grant of the ſubſidy upon condition to have their petitions granted ; a joint committee of the lords and commons are appointed to fit upon the faid petitions , from day to day , until they be diſpatched and reduced into the form of a ſtatute ; the committees are named , as well the lords as the com- mons . Yet the two houſes ſat apart alfo that Parliament ; for many things are recorded to be done by the lords , whereunto the commons are not parties : and many ſeveral committees were appointed of the lords alone that G4 ===== PAGE seq 126 ===== 104 Locus & Modus Sedendi . that Parliament , in which the commons were not joined . It is more of curioſity than of neceſſity to ſearch for the truth of this matter . An . 50 E. 3. The cause of fummons ended , the commons were willed to with- draw themſelves to their antient place in the chapter - house of the abbot of Westminster , and there to treat and consult among them- felves . This ſhews plainly , that they had a place affigned them of old to fit in apart . And when the king pleaſeth , he may have the lords and commons fit together in one place , as they did an . 7 Jacobi , in the court of requests , the lords fitting on the right - hand by themselves , and the com- mons on the left - hand by themselves , that day when the noble prince Henry was crea- ted prince of Wales . § 2 . ===== PAGE seq 127 ===== Locus & Modus Sedendi . 105 § 2. Whether the commons did antiently fit at conference with the lords . I have heard it often queſtioned , whe- ther the commons did fit antiently at con- ferences with the lords ? I will not refolve this doubt , for no re- cord can be produced on the one fide or on the other ; ſo that the uſage muſt direct us how it was in former times . And fince the commons do in other matters enjoy more ample privileges at this day than the antient records mention , divers privy coun- ſellors and others of the king's ſervants be- ing now of that houſe , from whence they were formerly exempted ( prout in the firſt chapter ) it is not likely that ſuch honoura- ble perſonages would have waved this one privilege , and ſtood in a croud , if they might have claimed a feat for their eaſe ; which they never did claim temp . Hen . 8 . Edw . 6. Ph . & M. nor of queen Eliz . It ===== PAGE seq 128 ===== 106 Locus & Modus Sedendi . It will be faid , that heretofore a commit- tee of the lords have come into the houſe of commons to confer with them , which was uſed even in an . 3 H. 8. and there , no doubt , the commons did fit , and the lords with them . It is true , that this happened ſometimes , but was not conſtantly obſerved ; and the lords did difcedere de jure to go thither , as it is refolved an . 2 R. 2. post festum sancti Luce . Now this is out of ufe . § 3. The manner of fitting in Parlia- ment at this day . The king . His majeſty fits in the chair of eſtate whenſoever he is preſent : if repre- ſented by commiſſion , either to begin or hold the Parliament , the commiſſioners ( af- ter the commifſſion is read ) do now fit on the right fide of the chair of ſtate beneath the ſteps . An . 1 ===== PAGE seq 129 ===== Locus & Modus Sedendi . 107 An . 51 E. 3. The prince represented the king by commiſſion , and his highneſs did fit in the chair of eftate . No other antient Parliament record ſhews where ſuch commiſſioners did fit ; neither an . 20 & 25 E. 3. when Lyonel the king's fon held the Parliament ; nor an . 12 & 14 E. 3. when Edward duke of Cornwall held the fame ; nor those of Hen . 5. and Hen . 6 . when the kings were in France . Vide the journal of 28 Eliz . where the lord archbi- ſhop of Canterbury , Burleigh lord treaſurer , and Darby lord ſteward , reprefented the queen's perſon by commiffion , and the man- ner thereof defcribed at large . The prince . His highness's feat is on the left - hand of the chair of eſtate ; that on the right - hand was antiently for the king of Scots , when he used to come to our Parlia- ments . The king's children . It is enacted an . 31 H. 8. cap . 10. That none but the king's children do presume to fit at any side of the cloath of state . The : ===== PAGE seq 130 ===== 108 Locus & Modus Sedendi . The king's vicegerent in ecclefiaftical jurif- diction . His feat is , by the faid ſtat . of 31 Hen . 8. on the right side of the Parliament chamber , above the archbishop of Canter- bury , upon the ſame form . The other officers are thus placed by the the ſaid ſtatute ; viz . The lord chancellor , the lord treasurer , the lord president of the king's council , the lord privy seal ; ( being of the degrees of barons of Parliament ) on the left fide of the Parliament chamber , on the higher part of the form , of the fame fide , above all dukes , except only ſuch as ſhall happen to be the king's fon , the king's brother , the king's uncle , the king's ne- phew , or the king's brother's or fifter's fon . The great chamberlain , the constable , the marshal , the lord admiral , the lord steward , the king's chamberlain ; above all others of the fame eftates and degrees . Vide an . 21 Jac . the duke of Buckingham was admiral , and placed next to the privy feal , and above the lord great chamberlain . The ===== PAGE seq 131 ===== Locus & Modus Sedendi . 109 The king's chief Secretary ( being of the degree of a baron ) above , all barons , not having any of the offices above - mentioned and if a biſhop , then above all other biſhops not having any of the offices above remem- bered . I have heard it doubted , whether the king's chief Secretary , being an earl , ſhall take place above all earls , not having any of the above - faid offices ; for this reaſon , that a ſtatute law must be expounded ſtrictly , according to the words . And I remember , that the lord viſcount Cranburn , being to be made earl of Salisbury , demanded this queſtion of my uncle Bowyer , who put this doubt unto his lordſhip : whereupon he pro- cured the precedency of his elder brother , who was then to be made earl of Exeter , by priority of creation . Vide 3 & 4 Jac . The earl of Salisbury , being principal fecretary , fate on the earl's bench , in his due place , according to his creation . It ===== PAGE seq 132 ===== 110 Locus & Modus Sedendi . It is alſo enacted by the ſaid ſtatute , that if either the lord chancellor , lord treasurer , president of the king's council , lord privy seal , or chief Secretary , ſhall be under the degree of a baron of Parliament , then ſuch of them as ſhall be under the faid degree ſhall be placed at the uppermost part of the ſack , in the middeſt of the faid Parliament cham- ber , either there to fit upon one form , or upon the uppermost fack , the one of them above the other , in order as above rehearſéd . On the right fide of the chair of ſtate the biſhops are thus ranked by the ſta- tute of 31 Hen . 8. viz . upon one form , The lord archbishop of Canterbury , The lord archbishop of York , The bishop of London , The biſhop of Durham , The bishop of Winchester ; Then all other bifſhops on the ſame ſide after their antienties , as it hath been accuf- tomed . But at this day the two archbishops fit ===== PAGE seq 133 ===== Locus & Modus Sedendi . 111 fit upon one form , and then the other bi- ſhops , in order , upon two forms , on the right - hand of the ſtate . The earls fit on the firſt form of the left- hand of the ſtate ; and on the first form of the clerks woolfacks fit the viſcounts . The barons ſit on the ſecond form on the left - hand of the ſtate , and upon divers other forms acroſs the lower end of the houſe . The lord chancellor , or the lord keeper , when the king is preſent , ſtands behind the cloth of ſtate on the right - hand ; but when the king is not preſent , then his lordſhip fits on the woolſack thwart the houſe , the feal and mace by him . The lord treaſurer , when the king is preſent , ſtands behind the chair of ſtate on the left - hand . The judges fit on the inner ſide of the woolfſacks . The king's learned council fit , on the outſide of the woolſacks , next the earls . The masters of the chancery ſit two on the fame fide , and two on the other fide , next the biſhops . CXC The ===== PAGE seq 134 ===== 112 Locus & Modus Sedendi . The clerk of the crown , and the clerk of the Parliament , ſit on the lower wool- fack , and have a table before them . And the clerk of the Parliament hath two clerks under him , who kneel behind the faid woolfack . When the king is preſent , none of the lords are covered ; and the judges and at- tendants do ſtand up , until his majeſty wills them to fit down . When the king is abſent , the lords do reverence to the ſtate , and ſalute the reſt at their entrance into the houſe , and then take their place . The judges fit alſo , but are not covered until the lord chancellor ſignifies the lords pleaſures . The king's council and the maſters of the chancery fit , but are never covered . CHAP . ===== PAGE seq 135 ===== [ 113 ] CHAP . IV . PARLIAMENT DAYS . § 1. On what days the Parliament may not fit . IN N the antient manuscript , de Modo te- nendi Parliamentum , cap . de Diebus & Horis ad Parliamentum . Parliamentum non debet teneri diebus Do- minicis ; fed cunctis aliis , illo die excepto , & aliis tribus diebus , fcilicet omnium Sanctorum , & Animarum , & nat . fancti Johannis Bapt . poteft teneri . Yet Parliaments have been fummoned to be held on the Sunday ; viz . An . 23 E. 1. 30 Sept. die Dominico prox . post festum sancti Martini in hieme . And the ſame was prorogued by a new fummons of November H ===== PAGE seq 136 ===== 114 Parliament Days . November following to be held die Dominico prox . poft festum beati Andreæ apoft . An . 27 E. 1. 6 Feb. die Dominico . An . 28 E. 1. 24 Decemb . Confimile . Et an . 33 E. 1. 22 Januar . & 35 Ε . Ι . 27 Febr . an . 1 E. 2. 19 Januar . & eodem an . 10 Martii ; an . 2 , 3 , 4 , 5 , 6 , 7 & 16 E. 2 . An . 1 , 2 & 4 E. 3. but none after 4 E. 3 : There are not any Parliament - rolls extant to fhew what the Parliament did on Sunday . Yet I find that ſubſequent Parliaments have fat on Sunday , prout an . 6 E. 3. n . 7 . Saturday the houſe of commons had leave to depart , and the lords were commanded to attend unto the next day , on which the Parliament was diſſolved . An . 20 E. 3. n . 11 , in fine . On Friday the commons delivered in their petitions , which were confidered by the lords upon Saturday , Sunday , and Monday next follow- ing , and on that Monday they were an- fwered . 5 Vide ===== PAGE seq 137 ===== Parliament Days . 115 Vide contrarium , an . 5 R. 2. The Parlia- ment was ſummoned to be held craft . omn . Anim . which fell out to be on Sunday , and therefore it was adjourned unto Monday . N. I. I find no Parliament ſummoned to be held on All Saints day , All Souls , or St. John Baptist's . Christmas - day . An . 3 E. 6. The Parlia- ment did fit on Christmas day , and read two bills ; and on St. Stephen's day , and read one bill ; and on St. John's day , and read two bills ; but this is fingular , and occa- fioned through the troublesome buſineſs of the duke of Somerset . Convocation - days . An . 1 H. 8. The tem- poral lords met in Parliament every convo- cation - day , though they did no other bufi- neſs than receive bills from the commons , and ſometimes not ſo much : and on thoſe days fome one of the lords ( though none of the great officers ) Ex mandato domini regis , quia domini fpirituales abſentes , & in convo- H 2 catione ===== PAGE seq 138 ===== 116 Parliament Days . catione occupati funt , continuavit Parliamen- tum ufq ; in diem craftinum . The lord chan- cellor was then a biſhop , and abfent alſo . This continued until the 7th of Hen . 8 . in which year the lord chancellor did , the day before the convocation - day , continue the Parliament until the day after , prout , an . 7 H. 8. 30 Novem . Dominus cancellarius propterea quod domini ſpirituales in convoca- tione craftino die occupandi funt , continuavit præfens Parliamentum uſque in diem Lune . The next precedent for convocation - days is an . 25 H. 8. For from the 7th until then we have no journals ; viz . Memorand . Quod die Sabbati 17 Januarii , tertio die Parliam . decretum est , quod domini Spirituales in convocatione diebus Martis , & Veneris proxim . Sequent . & ex tunc die Vene- ris tantum ( donec fecus melius videtur ) ver- fari poffent , & proceres cæteris diebus fine impedimento quotidie circa dimidietat . horæ oftav . ante meridiem , in locis confuetis fimul convenirent , ad tractandum & confultandum circa reipublicæ negotia . After- ===== PAGE seq 139 ===== Parliament Days . 117 Afterwards in this Parliament , after the End of Hillary Term , this Friday was chan- ged into Wednesday every Week , but no order is entered for it in the journal book . An . 3 E. 6. 4 Novemb . Hodie affignat . eft dies Veneris pro convent . epifc . & alior . ejusd . ordinis ecclefiaft . in ecclefia Pauli . Star - chamber - days . An . 25 H. 8. Mercu- rii , 4 Februarii . Hodie domin . cancellarius , eo quod die craftino Domini circa ardua negotia in camera ſtellata confulturi , & Dom . Spiritu- ales die Veneris in convocatione converfaturi fuerint , ex confenfu totius domus continuavit hoc præfens Parliamentum in diem Sabbati , bora confueta . I find no other precedent directly for this ; and the Star - chamber - days being fometimes one day in the week , ſometimes another , it appears not by the ordinary continuances of the Parliament , that any day was preter- mitted , quia a Star - chamber - day . But when in queen Elizabeth's time the Star - chamber- day was fettled to be on Wednesdays and Fri- H 3 days , ===== PAGE seq 140 ===== 118 Parliament Days . days , you shall not find that the Parliament did fit on those days in the term - time . Which was conſtantly obſerved alfo in the time of our late king James , until the Par- liament 18 Jac . And then an . 19 Jac . 24 April . die Martis , Upon motion made this day unto the house , that there is a great cause in the middest of bearing to be heard in the Star - chamber to - morrow , the lords were con- tented not to fit to - morrow in the morning , provided , that it be not drawn into a prece- dent ; but that this house , being the supreme court , may fit upon any Star - chamber - day , notwithstanding the absence of such lords as do uſe to attend that court . And accordingly the houſe was adjourned unto the next day , being Wednesday , in the afternoon ; and the next Star - chamber - day , being Friday , the 26th of April , the houſe did fit both in the forenoon and afternoon . CHAP . ===== PAGE seq 141 ===== [ 119 ] OF CHAP . V. PROXIES . §1 . In what cafes proxies were made . HOSE lords that could not appear I according to their fummons , made their proxies ; and even this ſhews their right to be ſummoned , elſe what needed their proxies ? But if they neither came , nor made proxies , then , for their difobedience unto the king's writ , they were amerced ; viz . antiently an earl at 100 % . and a baron at 100 marks . Vide the antient manufcript , Modus tenendi Parliamentum , cap . de Incho- atione Parliam . Which fum was qualified in after - times , prout , an . 31 H. 6. n . 46. A duke was taxed at 100 % , an earl at 100 marks , and a baron H.4 ===== PAGE seq 142 ===== 120 Of Proxies . baron at 40 l . if he came not to Parlia- ment . And the lords made their proxies , if they came not to the king's great council ( being ſummoned ) as well as to the Parliament . The antient form of a proxy . Excellentiſſimo principi , ac domino fuo il- luſtriſſimo , domino Edwardo , Dei gratia , regi Angliæ , & Franciæ , & dom . Hiberniæ , fuus bumilis capellanus , Johannes , abbas de Selbye , reverentiam & honorem cum jugi precum in- Stantia apud Deum . Quia impedimentis va- riis , & arduis negotiis concernentibus refor- mationem ſtatus domus noftræ fumus multipli- citer impediti quod in inſtanti Parliamento vestro apud Weſtminſt . in quinden . Sanct . Mich . prox . futur . tenendo fine gravi diſpen- dio dom . noftræ predict . perſonaliter effe non valemus , dilectos nobis in Chriſto & difcretos viros , dominos Henr ' de Barton , & Will . de Minfield , cleric . Lincoln . ecclefiæ canonicos , & eorum quemlib . per fe , ad comparend . & audiend . ===== PAGE seq 143 ===== Of Proxies . 121 audiend . pro nobis in hoc Parliamento trac- tand . & confentiend . una cum prælatis & procerib . fuper iis quæ ad ecclefiæ Dei , & ip- fius regni utilitatem expedientia videbuntur , nec non ad allegand . proponend . & proband . caufas absentiæ , & non - comparitionis noftræ perfonaliter , procurat . noftros conjunttim , & diviſim , & eorum utrumq ; per ſe & in foli- dum ordinamus , facimus , & conftituimus per præfentes : ratum & gratum habitur . quic- quid per duos procurator . noftros vel eorum al- terum , actum ſeu geſtum extiterit in præmiſſis . In cujus rei testimonium , & c . Regiſt . de Selbye , fol . 128 . § 2. In what cafes proxies were made without the king's licence . In divers writs of ſummons the king de- nied to accept of proxies , ea vice ; prout , an . 6 E. 3. 27 Januar . an . 11 R. 2. 20 Mar- tii ; an . 6 R. 2. 7 Januar . an . 22 Ε . 3. 20 Novemb . proxies are abſolutely denied , ista vice . An . ===== PAGE seq 144 ===== 1.22 Of Proxies . An . 39 E. 3. 20 Januar . proxies are de- nied , ista vice ; and the lords commanded to appear the day before . An . 45 E. 3. 8 Januar . iſta vice is left out , and it is thus ; Scientes , quod propter arduitatem , & c . Procuratores feu excufatio- nem aliquam , legitimo ceſſante impedimento , pro vobis admittere nolumus : which clauſe ( legitimo ceſſante impedimento ) all the former precedents have . Hereupon the lords that could not come obtained the king's licence to be abſent , and make proxies , as did the abbot of Selbye , an . 22 E. 3. Whereas to the Parliament an . 46 E. 3. ( which had not that clauſe ) he ſent his proxy without any licence , nor ex- preſſed any cauſe for his abfence , ſave that he was hindered impedimentis variis , & ar- duis negotiis , for the reformation of his ab- bey . Vide Registr . de Selbye with Sir Robert Cotton . By this , and the clauſe of denying their abſence , iſta vice , legitimo ceſſante impedi- mento , inſerted in fome ſpecial writs only , it 1 ===== PAGE seq 145 ===== Of Proxies . 123 it ſeems that at all other times they might make their proxies , notwithstanding they had not firſt obtained the king's licence . I have not ſeen many other precedents for it , of the antient times , than that of the abbot of Selbye ; but under Hen . 8. it was ufual in cafe of fickness ; prout , An . 3 H. 8. 20 die Parliamenti . Relatum eft quod abbas Salop . gravi infirmitate deti- netur quod hic intereſſe nequeat , & ideo con- ftituit procuratores fuos epifc . Coventr . & Lichfield , & comitem Salop . conjunctim & di- vifim . An . 6 H. 8. 12 Febr . Domin . Scroop de Upfall ægritud . detentus abest ( affidante ejus famulo Jacobo Marshall ) ſuoſq ; constituit pro- curatores abbatem de B. & dom . Darcy . An . 28 H.8 . 10 Junii . Confimile , pro abb . monast . Salop . An . 31 H. 8. Confimile , pro dom . Zouche . By which it appears plainly they had not the king's licence ; yet in ſuch cafes an affidavit was made of their fickness . § 3 . ===== PAGE seq 146 ===== 124 Of Proxies . § 3. The king's licence to be absent , and to make proxies . I have ſeen two precedents thereof ; the one an . 22 E. 3. to the abbot of Selbye , when the king had denied in his writ to al- low of proxies ea vice . The other unto the ſaid abbot , an . 2 H. 4 . The firſt was under the privy ſeal ; nay , the abbot's ſervant was ſo careful , that he pro- cured a warrant under the privy ſeal to paſs it under the great feal ; and the abbot had a teftimonial under the privy seal of the king's allowance of his procurator . The other ( 2 Hen . 4. ) was under the fig- net only ; and they both teftified the lord's name who procured the licence from the king . Vide Regist . de Selbye predict . Edward per la grace de Dieu roy d'Engle- terre , & de France , ſeigneur de Ireland , a noſtre cher en Dieu abbe de Selbye , Saluts . Coment q ' pur plufiurs groſſes & urgeantz be- foigns touchants nous & leſtate de notre roi- alme ===== PAGE seq 147 ===== Of Proxies . 125 alme eons ordines d'avoir prochement noſtre Parliament a Weſtminſt . & fur ce vous eons mandez par brieff fouz nostre graund feale de y estre en propre perfone fanz faire procureur en celle partie ; nientmeins a la requeſte no- tre cher & foiall Johan Darcye nous vouz tenons pur excuſe de voſtre venue in propre persone a mesme noſtre Parlement a cest foiz iſſint qe vous faces un fuffifaunt procurator de y venir en voſtre nom en maner come appent nient voillantz q ' vous ne foiez endamage n'em- pesche en temps a venir pur reaſon de nostre mandement ſuiſdit ; queu choſe vous fignifions per ceſtes nos lettres . Don . fouz noſtre privie feale a Weſtminſt . le 18 jour de Decemb . l'an de nostre regne de Angleterre 22. & de France 8 . An . 1 H. 8. 22 die Parliamenti , licentia- tus eft abbas de Crowland , per cancell . & the- faur . per procuratores fuos abbatem de Ram- jey , & dictum thefaur . id est . The chancellor and treaſurer certified , that the king gave the abbot licence to depart , & c . and not that the chancellor and treaſurer gave him ; prout , ===== PAGE seq 148 ===== 126 Of Proxies . prout , an . 6 H. 8. ( in the beginning of the book ) Abbas fancti Augustini de Cant ' abfens ex licentia regis , dom . Bergavenny nuncio , & conftituit procuratores , & c . And the licence of divers others to be abſent is recorded in like manner . Yet in thoſe years fome have their li- cences expreffed to be per literas dom . regis . Prout , eodem an . dom . Hastings , abfens ex licentia dom . regis , ut patet per literas . Ibid . 17 Feb. Confimile , pro abb . fancti Benedicti de Hulmo . An . 7 H. 8. primo die . Hodie recepta est billa , manu regis fignata , per quam dominus rex licentiavit Edwardum Sutton , militem , dom . de Dudley , & c . Confimil . pro abbat . de Thorney & pro ab . de Ramsey , & pro ab . Salop . Yet the licence itſelf was not always shewn ; prout , ibidem . Dom . rex licentiavit abb . de Malmsbury , ut patet ex dictis abb . de Wynchcomb , Will . Cumpton , milite , nuntio existente , & c . An . 25 H. 8. 28 , 31 & 35 H. 8. the proxies are entered thus ; Literæ procurat . of / ===== PAGE seq 149 ===== Of Proxies . 127 of fuch a lord , abfentis ex licentia dom . re- gis , attestante fuch a one : but whether the licence were by word of mouth , or other- wife by bill ſigned with the king's hand , non conftat . The king's verbal licence is ſufficient's yet I ſuppoſe they then had for the moſt part a formal licence figned by the king ; and it being not produced , a teftimonial thereof was required ; which was ſometimes teſtified by a lord , and ſometimes by a ſtranger ; prout , an . 25 H. 8. 15 Jan. Litere procurat . in quibus abbas de Eve- Sham , fub reg . grat . abfens , attestante Thoma Cromwel , arm . conftituit procur . & c . Literæ procurator . in quibus dom . de la Warre , & c . attestante Thoma Cromwel , & c . Litera , & c . abbas de Crowland , & c . at- testante magistro Cecill , & c . Literæ , & c . com . Effex , & c . attestante com . Oxon . Confim . an . 28 , 31 , & c . H. 8 . But an . 38 H. 8. and downward , nei- ther the licence , nor any ſuch teftimonial , was required ; only it fufficeth , that the let ters ===== PAGE seq 150 ===== 128 Of Proxies . ters of proxy mention the king's licence , which none will preſume on , unless he had it . It was determined by the houſe , 25 Apr. 1626 , That if a peer , having leave of the king to be abſent , gives his proxie , and af- terwards comes and fits in the houſe , his coming and fitting in Parliament doth de- termine that proxie , and his licence of ab- fence alſo . And that if a peer , having leave to be abſent , makes his proxie , and afterwards returns , he cannot make a new proxie with- out new leave . § 4. Unto whom proxies may be made . A proxy cannot be made to a lord that is abſent himſelf . Vide an . 33 & 34 H. 8 . in fine libri journal this entrance , viz . The lord Latimer ſent his proxy , which the clerk received ; but it was repealed by the lord chancellor , for that the lord Latimer's deputies were not present . Se ===== PAGE seq 151 ===== Of Proxies . 129 So if the lord , unto whom the proxy is made , be afterwards abſent , the proxy is void ; yea , although the procurator be abſent ex licentia regis , and hath made a procurator alſo for himself ; for the proxy is but an authority to give another man's affent , which cannot be transferred to a third perfon : and therefore in ſuch cafe the lord Vaux made a ſecond proxy an . 18 Jacobi regis , which , I think , was rather to retain his particular vote ( a dignity peculiar to the lords of Par- liament ) than to avoid the king's diſplea- fure ; the firſt proxy being a fufficient ex- cuſe for his abſence . Neither is it the uſe now to make proxies unto ſtrangers who are no members of the houſe , nor to any of the attendants , as to the judges , barons of the exchequer , or the like . Yet there are divers precedents that the ſpiritual lords have made proxies unto ſtran- gers ; prout , the abbot of Selbye made John Gouldale , a monk of that house , and maſter Will . I ===== PAGE seq 152 ===== 130 Of Proxies . 1 Will . R. Clerk , his procurators , an . E. 3 . The year is not recorded . A And divers other precedents there are of this nature . The lords temporal had then the like right ; and we may gueſs that they did make the like proxies unto ſtrangers by this , that an . 14 Edw . 3. in Middle Lent , Monf . William Scot and Monf . Will . de la Pole were not fummoned , and yet were ap- pointed triers of petitions ; a matter merely belonging to the lords of the upper house : ſo that we may gueſs they came with proxies , and not of any ſpiritual lords ( for they fent clergymen ) but of the temporal lords ; for they have the title of Monfieur , which ſhew- eth they were laymen . So we may gueſs that Monf . John de St. Paul , Monf . John de Pultenye , Monf . Waul- ter de Creyke , Monf . Will . de Felton , Monf . John de Stryvelin , and Monf . Thomas de Rokebie , came with proxies to that Parlia- ment , for they were not fummoned ; and yet were of divers committees , promiscue with other lords , in matters touching Flanders , Bruxels , ===== PAGE seq 153 ===== Of Proxies . 131 Bruxels , and the marches of Scotland , an . 14 E. 3. n . 13 , 14 , & 17. So that ſtrangers had proxies , and place , and voice in Par- liament . ' But the question is , where they fate ? furely not each in that lord's feat whoſe pro- curator he was ; yet they do ſo at a general council or diet beyond the feas . An . 21 R. 2. cap . 12. It appeareth , in the printed ſtatutes , that Sir Thomas Skel- ton , learned in the law , was demanded of the king his advice , touching the answers of the juſtices to certain queſtions , an . 11 R. 2. and gave his opinion therein : and yet the faid Sir Thomas Skelton was not ſum- moned to that Parliament . We may ſup- poſe , and that upon probable conjecture , he had a proxie of fome lord of Parliament , unleſs he came as an attendant , as now cer- tain of the maſters of the chancery uſe to do , ſuch as the lord chancellor doth ap- point ; but at this day their advice is never demanded . 12 The ===== PAGE seq 154 ===== 132 Of Proxies . The lords ſpiritual do uſually grant their proxies unto two or three lords . The quef- tion is , if the one of them give his vote one way , and the other two another , which ſhall ſtand ? And it was refolved by the lord pre- ſident of the council , the earl of Manchester , that the vote ſhall go with him that is firſt named in the proxie and preſent . ( At the committee of privileges 24 Apr. 1626 , p . m . ) It was ordered by the houſe , 25 Feb. 1625 , That after this ſeſſion of Parliament . no lord shall be capable of receiving above two proxies ; nor more to be numbred in any cauſe voted . And that all proxies from a spi- ritual lord ſhall be made to a spiritual lord , and from a temporal lord to a temporal lord . The form of the king's licence to be abfent . The firſt extant is in the journal of 8 Eliz . in hæc verba . Right truſty and wel - beloved , we greet you well . Whereas we are informed , that by 4 reafon : ===== PAGE seq 155 ===== Of Proxies . 133 reaſon of fickness you are not able to make your repair hither to this our feffion of Parl . to be holden at Westminst . we have thought good , by theſe our letters , to diſpenſe with you for your abſence , and to licenſe you to remain ſtill at home for this time , ſo never- theless that you do fend up your proxy to some Such personage as may for you , and in your name , give his voyce and affent , or denyal , to fuch matters as shall be treated and concluded upon in our faid Parl . And this our letter ſhall be your warrant in this behalf . Given under our fignet at our palace at Westminst . the 20th of Septemb . in the 8th year of our reign . Another form of the king's licence . Charles R. Right truſty and well - beloved , we greet you well . Whereas for divers important confiderations we have thought fit to ſum- mone our high court of Parliament to be holden I3 ===== PAGE seq 156 ===== 134 Of Proxies . 1 holden at our palace of Westm . & c . Albeit we have cauſed our writ of fummons to be addreſſed unto you for your repaire thither , yet , underſtanding that in regard of your indifpofition of body you are unfit and un- able to attend that ſervice in your owne perſone , we are pleaſed to licenſe , and by theſe preſents doe licenſe , you , & c . to for- bear your coming to the faid Parlement , foe as nevertheleſſe you cause your proxie to be fent , in some convenient time , unto some one of your owne quality , who may for you , and in your name , give his voice and confent unto fuch matters as are to be treated and con- cluded in our faid Parlement . And theſe our letters ſhall be your ſufficient warrant and diſcharge in this behalf . Given under our ſignet , & c . 27 May , in the firſt year of our raigne . The ===== PAGE seq 157 ===== Of Proxies . 135 The form of the proxy at this day . Omnibus Chrifti fidelibus , ad quos hoc præfens ſcriptum pervenerit , Edwardus , dominus Zouche , falutem . Noveritis me præfatum dom . Zouche per licentiam fere- niſſimi domini noſtri regis a præfenti hoc ſuo Parliamento tent . & inchoato apud Weſtminster , duodecimo die menſis Fe- bruarii ult . præterit . ſufficienter excufat . abeſſe , nominare , ordinare , & conftituere dilect . mihi in Chriſto prænobilem . & ho- norand . virum Henricum , comitem South- amton , præclariffimi ordinis garterii mili- tem , meum verum , certum & indubitatum factorem , actorem , attornatum , & procura- torem per præfentes ; eidemque procuratori meo dare & concedere plenam authorita- tem , & poteftatem pro me & nomine meo de & fuper quibufcunq ; caufis & negotiis in præſenti hoc Parliamento exponend . feu de- clarand . tractandi , tractatibuſque hujufmodi factis ſeu faciendis confilium nomine meo 14 impen ===== PAGE seq 158 ===== 136 Of Proxies . impendendi , ſtatutiſq ; etiam & ordinationi- bus , quæ ex maturo & deliberato judicio dominorum tam ſpiritualium quam tempo- ralium in eodem Parliamento congregator . inactitari , feu ordinari contigerint , nomine meo confentiendi , eifdemque ſi opus fuerit fubfcribendi , cæteraq ; omnia & fingula quæ in præmiſſis neceffaria fuerint ſeu quomodo- libet requifita faciendi & exercendi in tam amplis modo & forma prout ego ipſe facere poffem aut deberem fi præfens perſonaliter intereſſem , ratum & gratum habens & ha- biturus totum & quicquid dictus procurator meus ſtatuerit aut fecerit in præmiſſis ; in cujus rei teftimonium præſentibus ſubſcripſi , figillumque meum appofui . Datum decimo die Decemb . anno regni dicti domini noſtri Jacobi , Dei gratia Angliæ , Franciæ , & Hi- berniæ regis , fidei defenfor , & c . vicefimo , & Scotiæ quinquagefimo ſeptimo . : CHAP . ===== PAGE seq 159 ===== [ 137 ] CHAP . VI . DE SUMMONITIONIS CAUSA . § 1. By whom the cause of fummons ought to be declared . M ANUSCRIPT de Modo tenendi Par- liament . cap . de Pronunciatione pro Parl . Cancellarius Angliæ , vel capitalis justi- ciarius qui tenet placita coram rege , vel alius honestus , & facundus juſticiarius , vel clericus , pronunciare debet caufam Parliamenti , primo in genere , & poftea in ſpecie . Vide tamen 9 H. 6. n . 1. Pro eo quod Jo- hannes , archiepifc . Eborum , cancellarius An- gliæ , cui ratione officii fui fecundum confuetu- dinem regni Angliæ pertinuit caufam fummo- nitionis pronunciare , & c . infirmitate detinetur , & c . magister Henricus Lynwood , legum doctor , de mandato dicti cuſtodis declaravit , & c . And ===== PAGE seq 160 ===== 138 De Summonitionis Caufa . And in 5 Edw . 3. the firſt Parliament- roll now extant that hath the formal pro- ceedings of the Parliament ( which antiently were not recorded ) the biſhop of Winchester , being chancellor , declared the cause of fummons . An . 6 E. 3. Crō . Mich . Confimile . An . 6 E. 3. die Lunæ poft fest . ſancti Gre- gorii , the archbishop of Canterbury de- clared the cauſe of fummons , touching the king's going into the Holy Land with the French king ; then the biſhop of Winchester , being chancellor , declared the fame alſo : and afterwards the lord chief justice Sir Jef- ferie le Scroop , by the king's commandment , declared other cauſes for which the Parlia- ment was ſummoned , viz . to redreſs the breach of peace , and other miſchiefs at home , n . 6 . And when the breach of peace was han- dled , the biſhops , and the procurators for the clergy , departed all out of the houſe , for that it did not belong unto them ; and ſo the lord chief justice was ſpeaker all that Par- ===== PAGE seq 161 ===== De Summonitionis Caufa . 139 Parliament , n . 10 & 12. And ſo the chief juftice was ſpeaker in many Parliaments of Edw . 3. and in the 2d of Hen . 4. but in no other king's time , when the lord chancellor was preſent . § 2. Upon what occafions the cause of fummons hath been declared by the lord chief justice , tempore E. 3. though the chancellor were prefent . I obſerve the occaſion to have been of- fered , when a biſhop was chancellor , and the cauſe of fummons was either touching malefactors for breach of the peace , or the like ( for then none of the biſhops or clergy would be preſent ) ; or when it concerned the ufurpations of the pope , for tielx pa- roles ne giſont mye en bouche de prelat , fays the record an . 51 Ε . 3 . Therefore in divers years of Edw . 3. the ſame hath been declared by the lord chief justice ; prout , an . 6 E. 3. die Lune post festum 3 ===== PAGE seq 162 ===== 140 De Summonitionis Caufa . festum fancti Gregorii , by G. le Scroop , lord chief justice , the biſhops and clergy depart- ing out of the houſe when the matters which concerned the breach of peace were han- dled , n . 6. 10 , 11 . An . 6 E. 3. Vendredy devant le feste sanct Nicholas , by the lord chief justice Jeffery le Scroop , concerning Ireland , and the malice of the rebels there , & c . An . 6 E. 3. oftabis ſancti Hillarii , by Jef- ferie le Scroop , lord chief justice , touching Scotland and the marches . An . 13 E. 3. quinden . Mich . it is not re- corded by whom the cause of fummons was declared ; nor eodem an . oftabis fancti Hil- larii ; nor 14 E. 3. in Lent ; nor in the fe- cond Parliament in that year ; nor 15 E. 3 . nor 20 E. 3. nor 25 E. 3. oftabis purifica- tionis Marie . An . 17 E. 3. the cauſe of ſummons , touching France , was begun by the chan- cellor in general , but pursued in particular by Monf . Barthol . Burgherſh , n . 7. yet the chancellor was ſpeaker afterwards , n . 10 . touching ===== PAGE seq 163 ===== De Summonitionis Caufa . 141 } touching the better obſervation of the laws of the land , and againſt maintenance . But the ufurpations of the pope were treated per countes , barons , & autres nobles , & toute le communaltee . Vide the petition for the ſtatute againſt Proviſions , & c . n . 60 . The prelates are not named . An . 21 E. 3. Crō . Hillarii , per Monf . William de Thorpe , touching the French wars , and how the peace may be kept at home . An . 22 E. 3. by Monf . William de Thorpe , chief justice , touching the wars of France . An . 25 E. 3. in feſto Hillarii , per Monf . William de Sharefhull , chief justice , touch- ing the diſturbers of the peace and main- tainers of quarrels , & c . and alfo touching the realm of France , the king's inheritance . An . 27 E. 3. at a great council , per Monf . William Shareshull , chief justice , touching the ſtaple . An . 29 E. 3. Crō . Sancti Martini . Monf . William de Sharefhull , Chr . chief justice , dit , que il pleist au roy que la cauſe de ſummons Soit ===== PAGE seq 164 ===== 142 De Summonitionis Caufa . Soit monstre per Mons . Walter de Manny touching France . An . 36 E. 3. per Mons . Henry Green , chief justice , touching the liberty of the church and the peace of the land , & c . and touching Scotland , and to advance the ſmall price of wool , & c . Αn . 37 Ε . 3. οftab . Hillar . Proclamation was made by the king's commandment in Westminster - hall , that all the prelates , lords , and commons who were come to the Par- liament , ſhould draw themselves to the painted chamber ; and afterwards on the ſame day , there being in the chamber the chancellor , treaſurer , and fome of the pre- lates , lords , and commons , Sir Henry Green , the king's chief justice , told them in English , that the king is ready to begin his Parlia ment , but that many of the prelates , lords , and commons who are fummoned , are not yet come ; wherefore the king willeth that they ſhould depart , and take their eaſe un- til Monday : on which day the cause of fum- mons was declared by the bishop of Ely , ther ===== PAGE seq 165 ===== De Summonitionis Caufa . 143 then chancellor , touching the liberties of the church , and the grievances of the people . This is the laſt Parliament of Edw . 3 . that mentions the chief justice . In all the ſubſequent Parliaments of his time the cauſe of fummons was declared by the chancellor alone , and he hath been ſpeaker . Except that of 46 Edw . 3. The ſummons was declared by John Knevet the chancellor , and the next day by Sir Guy Brian more particularly ; and that of 51 Edw . 3. where the cauſe touching modern affairs was de- clared by the biſhop of St. David , the chan- cellor , and the ufurpation of the pope by Monf . Robert de Ashton , the king's cham- berlain . Since Edw . 3. the cauſe of fummons was ever declared by the chancellor , if he were preſent , though the day after ſome other matters have been opened unto the lords and commons , prout , by the ſteward of the king's houſe , an . 2 R. 2. at Gloucester , and an . ===== PAGE seq 166 ===== 144 De Summonitionis Caufa . an . 5 R. 2. by Sir Hugh Segrave , the king's treaſurer , and an . 6 R. 2. by the biſhop of Hereford , & c . The like hath been in latter times , prout , an . 21 Jac . by the duke of Buckingham , touching the match with Spain , and the re- covery of the Palatinate , & c . An . 2 H. 4. the cauſe of fummons was declared by Sir William Thirning , chief juf- tice of the common pleas : yet the Parlia- ment buſineſs was afterwards managed by the chancellor , n . 47. It seems the chan- cellor was not preſent the firſt day . § 3. Whether he that antiently declared the cause of fummons , not being the chancellor , were speaker alſo all the Parliament , though the chancellor was present ? Theſe ordinary matters are not entered uſually in the rolls of Edw . 3. yet by fome we may gueſs at the reft . Vide ===== PAGE seq 167 ===== De Summonitionis Caufa . 145 Vide an . 25 E. 3. the cause of fummons was declared by William de Shareshull , chief juſtice ; and receivers and triers of petitions being read , he willed the commons to put their advice in writing , and deliver it to the king on Thursday following ; ſo that he was ſpeaker ; and yet the biſhop of Winchester was chancellor , and preſent ; for the record ſays , that he delivered the lord of Arundel's petition unto the clerk to be entered , n . 8 & 9 . An . 25 E. 3. in feſto ſancti Hillarii , Sir William Shareſbull , chief justice , declared the cause of fummons , n . 1. 6. then willed the commons to aſſemble , & c . n . 8. and on Friday following willed them to deliver in their petitions , n . 8. ſo he managed the Parliament buſineſs ; and yet the chancellor was preſent ; for he is appointed to affiſt in the trying of petitions in cauſes of import- ance , n . 3 & 4 . And in all other Parliaments of Edw . 3 . when the cauſe of fummons was declared by the chief justice , the chancellor was pre- fent , K ===== PAGE seq 168 ===== 146 De Summonitionis Caufa . fent , as may appear by the triers of peti- tions . So that , in thoſe Parliaments , it cannot be faid that the chief justice did fupply the lord chancellor's place ( for that is properly when he is abſent ) but was appointed by the king to be ſpeaker that Parliament . An . 29 E. 3. The chief justice declared , that the king's pleaſure was , that the cauſe of fummons ſhould be declared by Monf . Walter de Manny , and ſo it was ; yet the chief justice managed the Parliament bufi- neſs as ſpeaker : for preſently after Monf . Manny his difcourſe , he willed the commons to adviſe thereof , & c . and to make ready their petitions , n . 10 . And the petition of the earl of March being read , it was faid by Mons . Will . Share- ſhull , and the lords then present , with one minde and one accord , that it feemed to them , that the petition was good and rea- fonable , & c . Ibid . after the petitions of the commons . Here ===== PAGE seq 169 ===== De Summonitionis Caufa . 147 Here you fee the chief justice ranked firſt above the lords in delivering their votes : ſo that it is plain the chief justice managed the Parliament buſineſs as ſpeaker appointed by the king , and that he did execute the office ( not fupply the place ) of the chancellor therein . : For in ſuch cafes , where the chancellor's place is ſupplied , there , when the chancel- lor comes , he executes his office himself : prout , an . 31 H. 6. The chancellor being ab- fent ( faith the record ) the king commanded the bishop of Lincoln to pronounce the cauſe of fummons , n . 1. March 6 . But when the chancellor was come , he prorogued the Parliament by the king's commandment , n . 12. March 28 . by well it tod K 2 § 4 ===== PAGE seq 170 ===== 148 De Summonitionis Caufa . § 4. Whether be that antiently declared the cause of fummons ( not being the chancellor ) had any commiſſion ( as now ) under the seal or no ? Here by the antient Parliaments I mean thoſe whoſe records are kept in the Tower . An . 6 E. 3. Lunæ poft fest . Sancti Grego- rii , the chief justice , by the king's com- mandment declared the cauſe of fummons , ४८ . An . 21 E. 3. Confimile , by the king's commandment ; which , in my opinion , is to be understood of a verbal commandment only , and not by any commiſſion : for none is recorded in any of the rolls of his time , which would have been in one Parliament or other , when as commiſſions of far leſs moment are entered . In two Parliaments of Hen . 6. the chan- cellor's place was ſupplied by a verbal au- thority , prout , an . 9 H. 6. the chancellor being ===== PAGE seq 171 ===== De Summonitionis Caufa . 149 . being fick , unto whom it appertains ratione officii fui to pronounce the cauſe of fum- mons , the duke of Gloucester ( the king's protector ) appointed Doctor Lyndwood to pronounce the fame . An . 31 H. 6. the chancellor being abſent , the king commanded the biſhop of Lincoln to declare the cause of fummons : there was then no commiſſion granted to fupply the chancellor's place , as now of later times . In the end of this chapter ſhall be ſhewed when the firſt commiſſion was granted , and precedents of the ſeveral forms thereof . § 5. The manner how the cause of fum- mons is declared , when the king is present in person , and how when his majesty is represented by commiſſion . The king is ever preſent when the cauſe of ſummons is declared , either in perſon , or by commiſſion . If in perſon , the lord chancellor doth firſt remove from his place , which K 3 ===== PAGE seq 172 ===== 1 1 150 De Summonitionis Caufa . 1 which is on the king's right - hand behind the chair of ſtate , and confers privately with his majeſty . The cause of which ceremony may feem to be this ; that , as none but the king can call the Parliament , ſo it may appear , that none but his majesty can propound and di- rect wherefore it is called . And this ceremony is ever obſerved by the lord chancellor , before he ſpeak any thing in Parliament , when his majesty is preſent ; as for the continuance , proroga- tion , or diffolution of the Parliament ; and they are entered to be done ex mandato do- mini regis . So antiently all the chancellors ſpeeches are entered to be de par le roi , when the king was preſent ; whereby it feems this ceremony was obſerved alſo . If the king be repreſented by commif- fion , then the lord chancellor fits on the woolfack , and the commiſſion being read , the commiffioners repair to the feat pre- pared for them , on the right - fide of the chair of ſtate beneath the ſteps . Then the lord ===== PAGE seq 173 ===== De Summonitionis Caufa . 15 lord chancellor ariſeth , and conferreth with the commiſſioners , and returns to his place on the woolſack , and there declares the cauſe of fummons , prout , an . 28 Eliz . 29 Οπ . Vide an . 51 E. 5. The prince of Wales repreſented the king in Parliament , and fate in the chair of ſtate . Here may be a queſtion , where the lord chief justice ſate temp . E. 3. when he de- clared the cauſe of fummons ? and where he , that ſhould now ſupply the lord chan- cellor's place , ought to fit , when he de- clares the fame in the king's prefence ? In my opinion he ought to fit in his own proper place , until he doth ariſe to confer with the king , and then to declare the fame in the lord chancellor's place , as he may be near the king . It is not fit that he ſhould fit or ftand at the woolfack , and ſpeak with his back to the king ; but I have no prece- dent for it , K 4 The ===== PAGE seq 174 ===== 152 De Summonitionis Caufa . The commiſſion to fupply the lord chan- cellor's place . Elizabeth , by the grace of God queen of England , France , and Ireland , defender of the faith , & c . To our truſty and wel- beloved Sir Robert Catelyne , knight , chief justice of the pleas to be holden before us , greeting : Whereas our right truſty and right wel - beloved counsellor , Sir Nicholas Bacon , knight , lord keeper of our great feal of England , is at this preſent ſore viſited with fickneſſe , that he is not able to travaile to the upper house of this our preſent Par- liament holden at Westminster , nor there to fupply the room and place in the faid upper houſe , among the lords ſpiritual and tem- poral there afſſembled , as to the office of the lord chancellor , or lord keeper of the ſeal of England hath been accuſtomed , we , minding the fame place and room to be fupplied in all things as appertaineth , have named ===== PAGE seq 175 ===== De Summonitionis Caufa . 153 named and appointed you , and by theſe preſents do name , conſtitute , appoint , and authorize you , from day to day , and time to time , hereafter during our pleaſure , to ufe and occupy the place and room of the faid lord keeper in our faid upper house of Parliament , amongst the ſaid lords ſpiritual and temporal there aſſembled , and there to do and execute all things from day to day , and time to time , as the faid lord keeper of the great feal of England ſhould or might do , if he were there preſent , ufing and fupplying the fame place : where- fore we will and command you the faid Ro- bert Catelyne to attend unto and about the execution of the premiſes with effect ; and theſe our letters patents ſhall be your ſuffi- cient warrant and discharge for the fame in every behalf . In witneſſe whereof we have cauſed theſe our letters to be made pa- tents . Witneſſe our ſelfe at Westminster the 25th of October , in the 8th year of our reign . I have ===== PAGE seq 176 ===== 154 De Summonitionis Caufa . I have not performed my promise to ſet down the firſt commiſſion of this kind , and the occafion thereof ; but this is the firſt in our journals ; and I ſuppoſe that this au- thority was firſt granted by commiſſion , when the king did forbear to be preſent daily in perſon as the former kings were , when a verbal commandment fufficed , prout , temp . E. 3. & H. 6. antea . CHAP . ===== PAGE seq 177 ===== [ 155 ] CHAP . VII . PROLOCUTOR DOMUS COMMUNIS . § 1. The commons ever had a speaker . THAT the commons have ever had their ſpeaker , I think none will doubt . Yet it may be objected , that they needed none in the antient times when both houſes fate together . But I have ſhewed , in the third chapter , that the commons ever had a place for their confultations apart from the lords , though they did often meet and fit together in one room , and then a ſpeaker was neceſſary , to avoid confufion of ſpeech and arguments . To refolve this more clear , vide lib . fanct . Albani , fol . 207 , in Sir Robert Cotton's li- brary ; the answer of the Parliament , an . 44 H. 3. to pope Alexander , touching the recal ===== PAGE seq 178 ===== 156 Prolocutor Domus Communis . recal of Adomar , the elect biſhop of Win- chester , from banishment ; viz . Si dom . rex & regni majores hoc vellent , communitas ta-- men ipfius ingreſſum in Angliam jam nulla- tenus fuftineret ; which is figned and fealed by all the lords , and by Petrus de Monteforti , vice totius communitatis ; which ſhews plainly that he was their ſpeaker : for the very ſame words did Sir John Tiptofte , their ſpeaker , fign and feal to the intail of the crown , an . 7 & 8 H. 4 . There are ſome other records , out of which one may gueſs they had a ſpeaker ; prout , an . 17 E. 3. n . 9. Les chivalers des countees & les communs refponderent per Mon- fieur William Truffell , who may be ſuppoſed to be their ſpeaker . But the firſt that doth directly name him is the Parliament 51 E. 3. n . 87 . The last day of the Parliament ( faith the record ) Sir Thomas Hungerford , knight , Speaker , declared to the lords , that he had moved the king to pardon all fuch as were unjustly convicted in the laſt Parliament , and ===== PAGE seq 179 ===== Prolocutor Domus Communis . 157 and that the king willed him to make ſpe- cial bills for them , which he had done for feven , & c . It can be no argument that the com- mons had no ſpeaker before this 51 Edw . 3 . becauſe no former records mention him ; for this is to be noted , that the antient rolls did record only what acts paſſed between both houſes , and what laws were made , and omitted the forms and ceremonies then ufed . There are divers Parliament - rolls of R. 2 . that mention the ſpeaker in the beginning , as his preſentment or proteſtation , or the like ; and ever after he is omitted in the ſame rolls , and all is entered to be ſpoken by the commons , not once naming him ; prout , an . 1 R. 2. an . 2 R. 2. apud Glouce- fter . n . 18. 20. 22 , 23 , 24. 26. an . 4 R. 2 . n . 10. 12 , 13. an . 5 R. 2. n . 10. 16. an . 21 R. 2. n . 8 , 9. 14 , 15. And the Parliament- rolls an . 1 , 2. 4 , 5 , 6 , & 11 H. 6. do men- tion the ſpeaker's proteſtation ; but what- foever elſe is ſpoken or done , as on the behalf ===== PAGE seq 180 ===== 158 Prolocutor Domus Communis . behalf of the commons , is recorded to be done by the commons , and the ſpeaker not once named . The like may be obſerved out of the Parliaments an . 2 H. 6. n . 6. an . 4 H. 6 . n . 10. an . 6 H. 6. n . 16. an . 28 H. 6. n . 16 . an . 29 H. 6. n . 16. an . 31 H. 6. n . 30. and an . 12 E. 4. n . 10. an . 22 E. 4. n . 10. which fay , that that was ſpoken by the commons , which , without doubt , was ſpoken by the ſpeaker on their behalf . Whereas in divers other Parliaments of Rich . 2. and Hen . 4. and downwards to this day , the party that ſpeaks for the commons is always recorded ; viz . the ſpeaker anti- ently , and their meſſenger of later times . And although the Parliament - rolls of 1 , 2. 4 , 5 , 6. 17. 20. and 21 years of Rich . 2 . do mention the ſpeaker , and his folemn proteſtation is there recorded ; yet there be divers other parliament - rolls of Rich . 2 . wherein the ſpeaker is not once named at all ; viz . an . 5 R. 2. 7 Maii ; an . 6 R. 2 . oftabis Mich . and an . 9 , 10 , 11. 13 , 14 , 15 , 16 , ===== PAGE seq 181 ===== Prolocutor Domus Communis . 159 16 , & 18 R. 2. So that I do not marvel that the records of Edw . 3. ( which are the firſt Parliament - rolls now extant ) do not mention the ſpeaker . And therefore I may boldly affirm , that the commons had their ſpeaker as well in the time of Edw . 3. and ever before , though he be not then re- corded , as in the time of Rich . 2. when it is apparent they had a ſpeaker , though not mentioned in the rolls , viz . in all the Par- liaments between the 6 and the 17 Rich . 2 . § 2. The election of the speaker . At this day , the cauſe of fummons being declared , if by the king ( who in this learned age hath ever delivered the fame to the great admiration of the hearers ) the lord chancellor confers firſt with his majesty , and then in his name commands the commons to aſſemble in their houſe , and to chooſe one of their members to be their ſpeaker , and to preſent him to his majesty on a day certain . 4 If ===== PAGE seq 182 ===== 160 Prolocutor Domus Communis . If the cause of fummons be delivered by the lord chancellor , or by any other whom the king appointed , he concludes his ſpeech with the king's commandment to the com- mons to choose their ſpeaker , without re- moving from his place to confer firſt with his majesty , or with the commiſſioners , if the king be abſent . The commons being thereupon affem- bled in their houſe , one of them putteth the reſt in mind of their charge given in the upper house , touching the choofing of a ſpeaker ; and then doth of himself com- mend one unto them , and deſireth their opinions to be ſignified by their affirmative or negative voices ; and if any man ſtand up and speak against him ſo named , al- ledging fome reaſon , he ought to name another . When it appeareth who is chofen , after a good pauſe he ſtandeth up , and ſheweth what abilities are required in the ſpeaker , and that there are divers amongst them well furnished with fuch qualities , & c . diſableth himself , ===== PAGE seq 183 ===== Prolocutor Domus Communis . 161 himſelf , and prayeth a new choice to be made ; which is commonly anſwered with a full conſent of voices upon his name . After which two go unto him in the place where he fits , take him by the arms , and lead him to the chair . After a while he riſeth , and uncovered , with humble thanks for their good opinion of him , promiſeth his willing endeavour to do them ſervice , ४८ . Then ſome one ( commonly he that firſt ſpake ) puts them in mind of the day ap- pointed to preſent their ſpeaker , & c . The mace is not carried before him until his return from the upper house , being pre- fented to the king , and allowed of . Here may be two questions moved : 1. Whether the commons might chooſe their ſpeaker , if the king commands them not ? : 2. Whether the election be in their own abſolute choice ? L To ===== PAGE seq 184 ===== 162 Prolacutor Domus Communis . To clear theſe , we must view the antient records . Thoſe of Rich . 2. are the firſt that mention the ſpeaker . It doth not appear by any of them , that the commons ever had any fuch command- ment to choose their ſpeaker ; neither is a word of it in any record of Edw . 3. which have the ſpeeches at large touching the cauſe of fummons , moſt of them conclud- ing with a charge to the commons , to - con- fider and adviſe thereof amongst themselves , but nothing , touching the election of their ſpeaker . Yet out of doubt they did firſt chooſe their ſpeaker , before they entered into any debate of their charge . The first charge to choose their ſpeaker is in an . 2 H. 4. and yet it is omitted again in the Parliament an . 7 & 8 H. 4. but , that only excepted , it is continued from 2 H. 4 . until this day ; and the long uſe hath made it ſo material , that without the king's com- mandment or leave they cannot chooſe their ſpeaker ; which appears plainly by this , that in ===== PAGE seq 185 ===== Prolocutor Domus Communis . 163 in an . 31 H. 6. the Parliament being pro- rogued , and the ſpeaker arrested in execu- tion , in the interim before the acceſs , the commons prayed his inlargement , which , after long debatement of the privileges of Parliament , was denied ; and then certain of the lords were fent to the commons , and commanded them in the king's name to chooſe a new ſpeaker , and thereupon they did fo . And of late years , in the time of queen Elizabeth , the Parliament being prorogued , and the ſpeaker dead in the interim , before the acceſs , the commons , before they pro- ceeded to any buſineſs , acquainted the lords therewith , and defired the lords to intimate the ſame to the queen ( as ſhall be more largely declared hereafter in this chapter ) and ſo were commanded by her majesty to chooſe a new ſpeaker . But as touching the second queſtion ; furely the election of the ſpeaker was anti- ently free to the commons , to choose whom they would of their own house , which ap- pears L2 ===== PAGE seq 186 ===== 164 Prolocutor Domus Communis . pears in this , that the king never rejected any whom they made choice of . Vide 5 R. 2. The Parliament began the 4th of November , and the 18th of Novem- ber the commons came and preſented Sir Richard Walgrave , whom they had chofen for their ſpeaker , who excuſed himself , de- firing to be diſcharged ; but the king luy chargeast del faire par sa ligeaunce , in as much as his companions had choſen him , n . 9 . Whereby it appears plainly , that the choice was abſolutely in their own power . § 3. The presentment of the speaker . At the day appointed , his majesty fitting on his royal throne , and the lords all in their robes , the commons are called in , who being come , the ſpeaker is brought between two of them , with low obeiſances , to the bar , and fo preſented unto his majefty . The preſentment of the ſpeaker is not recorded in any of the rolls of Edw . 3. and A none ===== PAGE seq 187 ===== Prolocutor Domus Communis . 165 none of Rich . 2. ſpeak of the king's com- mandment to chooſe a ſpeaker ; ſo that there could not be any day appointed to preſent him : yet I ſuppoſe the commons did ever firſt preſent their ſpeaker , before they declared any thing to the king ; other- wife , what needed the ſpeaker's excuſe unto the king before he was admitted to ſpeak , even in the firſt years of Rich . 2. which no record ſays was a new inſtitution , and there- fore no doubt was in uſe alſo under Edw . 3 . and before . From the ſecond year of Hen . 4. and downwards , the commons are willed to chooſe their ſpeaker , and to preſent him , § 4. The Speaker's excufe . This is now formal and out of modeſty , for he firſt excuſeth himself unto the com- mons when they elect him , and afterwards to the king when he is preſented , L3 The ===== PAGE seq 188 ===== 166 Prolocutor Domus Communis . The firſt excuſe that I find is that of Sir Richard Walgrave , knight , ſpeaker , an . 5 R. 2. whom the king charged upon his allegiance to take it upon him , fitbe be was chosen by the commons . The next is an , 1 H. 4. of Sir John Cheyny , who made no excufe at his preſentment : but the next day after he and the commons came before the king , and declared his dif- ability to ſerve by reaſon of a fudden diſeaſe , and that the commons had chofen Sir John Dorewarde in his place , beſeeching his ma- jeſty to allow thereof , which the king did , and commanded Sir John Dorewarde to be their ſpeaker , and he made the common proteſtation for himself and the commons , but no excuſe , n . 63 . The next excuſe is an . 5 H. 4. n . 8. of Sir Arnold Savage , which the king would not allow of . An . 6 H. 4. n . 8. Sir William Sturmy made no excuſe . An . 7 & 8 H. 4. n . 9. Sir John Tip- toft deſired to be excused in reſpect of his youth ; # ===== PAGE seq 189 ===== Prolocutor Domus Communis . 167 youth ; but the king affirmed the elec- tion . All other ſpeakers in Hen . 4th's time de- fired to be excused , and ſome under Hen . 5 . ſome others did not ; it was not conſtantly obſerved , but from the fixth year of Hen . 6 . ſince which time they have all ( except two ) defired to be excused : yet none were ex- cuſed , fave only Sir John Popham , knight , an . 28 H. 6. whom the king discharged ; and thereupon the commons choſe and pre- fented William Tresham , eſq ; who made no exeuſe . Neither did Sir William Oldhall , an . 29 H. 6. defire to be excuſed . At this day , the ſpeaker having made his excuſe , the lord chancellor confers with the king , and then telleth him , that his maje- ſty doth approve of the commons choice , and will not allow of his excuſe . Then the ſpeaker proceeds to his ſpeech ; but antiently they made firſt a proteſtation , as followeth . L4 $ 5 ===== PAGE seq 190 ===== 168 Prolocutor Domus Communis . § 5. The speaker's protestation . The firſt proteſtation is that of 1 Rich . 2 . n . 15. yet , no doubt , the like was made in former times , though not entered ; for I find no new inſtitution or order for this ; neither could it be new , being in the be- ginning of the firſt Parliament of this young king . The words of the proteſtation are to this effect ; viz . That what he had to ſay was from the whole houſe , and therefore he re- quired , that if he ſhould happely ſpeak any thing without their conſents , that the fame might be amended before his departure from the fame place . An . 7 H. 4. n . 9. Sir John Tiptoft was preſented ſpeaker , and affirmed by the king , his excuſe by reaſon of his youth being firſt rejected . This was the 2d of March . On the 23d day of March he made the com- mon proteftation ( it ſhould feem the firſt day ===== PAGE seq 191 ===== Prolocutor Domus Communis . 169 day he was in good hope to be excused , and therefore was unprovided of a protefta- tion , which he made not until he had fome- what elſe to ſpeak on the behalf of the commons ) and defired a confirmation of their privileges . On the third of April he defired his proteſtation to be entered , and defired alſo ( in the name of the commons ) that if they ſhall deliver any thing in wri- ting , the fame writing may be redelivered to them again , at any time during the Par- liament , to be amended , if need be , at their pleaſure ; unto which the king aſſented . An . 11 H. 4. n . 12. The commons prayed the king that a petition , which they had de- livered in Parliament , touching Lollards , might be redelivered to them again , and nothing therein enacted ; which the king granted , of his special grace , provided it be not drawn into example . Nota , they prayed not any amendment , as they might of right , but that the petition be redelivered , and that nothing be proceeded thereupon ; which was unusual . At ===== PAGE seq 192 ===== 170 Prolocutor Domus Communis . At this day the ſpeaker wholly omits the proteftation , neither is it now needful ; for he never comes to ſpeak on the behalf of the commons , unleſs to demand judgment against any whom they have accuſed to the lords . §6 . His fpeech antiently and at this day . Antiently the ſpeaker came not before the king , until he had fomewhat to ſay unto his majeſty on the behalf of the commons ; and then , having firſt made his proteſtation for amendment of any thing he ſhould ſpeak otherwise than he was directed , he pro- ceeded to ſpeak in the name of the com- mons , and if he ſpake any thing of his own mind , as ſometimes it happened , he declared it fo ; but never made any oration , as now of latter times . To prove this , vide all the records of Rich . 2. Hen . 4. and downwards to the 6 Hen . 8. until cardinal Wolfey had the ſeal ; during whoſe time there are no journals ex- extant , ===== PAGE seq 193 ===== Prolocutor Domus Communis . 171 : tant , neither are the acts certified into the chancery , as they ought to have been . Whereby the antient forms of Parliament are much obſcured and diminished . His ambition firſt brought in the privy counſel- lors , and others of the king's ſervants , into the houſe of commons , from whence they were antiently exempted . The effects are , the commons have lost their chief jewel ( freedom of ſpeech ) and the lords departed with as much of their judicature . An . 1 R. 2. The ſpeaker's ſpeech follows his proteſtation ; but it concerns not the cauſe of fummons , but matters dehors ; fo that it feems he was directed therein by the commons . An . 2 R. 2. He rehearſeth the chancel- lor's ſpeech , and anſwers in the name of the commons , which ſhews plainly the commons directions for his fpeech . An . 3 R. 2. He delivers the answer of the commons touching the aid required . An . 6 R. 2. The commons debated two days amongst themselves of their charge touching ===== PAGE seq 194 ===== 172 Prolocutor Domus Communis . touching the king's paſſage into Flanders ; then they defired conference with the lords . After confultation had , the ſpeaker came , and made his proteftation , and then deli- vered the anſwer of the commons , ſo that the ſpeaker came not until the commons had agreed what he ſhould fay . And no records of Edw . 3. mention either the ſpeak- er's preſentment or proteſtation , but the an- fwer of the commons when they were agreed thereon ; though out of doubt the fame was delivered by the ſpeaker only . Afterwards , an . 17 R. 2. ( for between the 6th and the 17th no ſpeaker is recorded ) the ſpeaker's preſentment and proteſtation are only entered , and no ſpeech the firſt day . An . 20 & 21 R. 2. Confimile . And fo in very many Parliaments of Hen . 4 , 5 , and 6. and Edw . 4. and downwards to the 6 Hen . 8 . Which proteſtation the commons alſo di- rected ; as may appear an . 13 H. 4. where the ſpeaker required , on the behalf of the commons , ===== PAGE seq 195 ===== Prolocutor Domus Communis . 173 commons , that it would pleaſe the king , that they might be advised of their protef- tations until the next day ; which plainly ſhews , that the ſpeaker ſpake nothing ( his excuſe excepted ) but what the commons ad- vifed him . Vide etiam an . 2 H. 4. The ſpeaker's pro- teſtation being allowed , he then of his own authority ( faith the record ) rehearſed the cauſe of fummons , & c . So that if he made any ſpeech of his own he declared it fo . Of latter times , the ſpeaker's ſpeech is what it pleaſeth himself , having no direc- tion at all from the commons touching the fame . Nay they do now wholly omit their antient proteſtation , and , in lieu thereof , make petition to the king , on behalf of the commons ; ſome , in general words , for all their antient privileges , and ſome , in parti- cular , for , 1. Acceſs unto his majeſty ; 2 . Freedom of ſpeech ; and , 3. Freedom from arreſts . And ===== PAGE seq 196 ===== 174 Prolocutor Domus Communis . And yet they did ever enjoy theſe privi- leges in as ample manner as now , though not formerly prayed by the ſpeaker . I have entered this laſt ſpeaker's ſpeech ( Sir Thomas Crewe ) at large , in the journal of 21 Jac . R. which , in my opinion , is the best that is recorded ſince the 6th of Hen . 8 . It conſiſts not in verbal praiſes , but is real , fit for the times , and well beſeeming the dignity of a Parliament . The ſpeaker having ended his oration , wherein he always makes ſome requeſts on the behalf of the commons , the lord chan- cellor confers again with the king , and makes anſwer thereunto in his majesty's name , granting his requests for acceſs to his majesty , and for their liberty and privileges in as ample manner as they have enjoyed them in any times of his majesty's proge- nitors . $ 7 . ===== PAGE seq 197 ===== Prolocutor Domus Communis . 175 $ 7 . That the commons ever enjoyed those privileges which the speaker now pe- titions for , though never defired by any of the antient Speakers , until after the fixth year of King Hen . 8 . : : : The petitions are now three , touching their privileges ; viz . Firſt , Access unto bis majesty ; 2dly , Freedom of Speech ; and 3dly , Freedom from arrests . As touching access unto his majesty , it ap- peareth plainly they ever enjoyed this , even when the kings were abſent from Parlia- ment , prout , an . 51 E. 3. the king being then fick at Eltham , the ſpeaker , Sir Tha- mas Hungerford , declared to the lords , that he had moved the king to pardon all fuch as were unjustly convicted in the laft Par- liament , & c . n . 87 . That ===== PAGE seq 198 ===== 176 Prolocutor Domüs Communiš . That the king was then fick at Eltham , vide n . 21 . At all other times of Rich . 2. Hen . 4 . and downwards , the commons , with the ſpeaker , were ever admitted to the king's preſence in Parliament to deliver their an- fwers : and oftentimes under Rich . 2. Hen . 4. and Hen . 6. they did propound matters to the king , which were not given them in charge to treat of . This request for acceſs unto his majesty is firſt recorded , an . 28 H. 8. to be made by Richard Riche , ſpeaker ; then by Thomas Moyle , ſpeaker , an . 33 H. 8. and afterwards by all others whoſe ſpeeches are in the jour- nals . The ſpeaker's petition for freedom of Speech is not recorded before the 33 Hen . 8 . when it was made by Thomas Moyle , ſpeaker . Neither was it ever denied them ; for the commons would never fuffer any uncomely ſpeeches to paſs of private men in their houſe , much leſs of the king , or of any of the lords . They ===== PAGE seq 199 ===== Prolocutor Domus Communis . 177 They did oftentimes under Edw . 3. dif cuſs and debate amongst themſelves many things concerning the king's prerogative ; and agreed upon petitions for laws to be made directly against his prerogative , as may appear by divers of the faid petitions ; yet they were never interrupted in their con- ſultations , nor received check for the fame , as may appear alſo by the anſwers to the faid petitions . The precedents of Edw . 3. are the beſt , ( he being the right heir to the crown , abſo- lute in his government , and well - beloved of his people ) and may be freely cited . Rich . 2. fucceeded , being very young , having froward uncles , who were ſo popu lar , that they made him very jealous of his prerogative . I will not allege ſuch precedents of his time , as prove that the commons argued and propounded matters contrary to his pre- rogative ( for they are many ) ; but only ob- ſerve how that king did , in the latter end of his reign , take notice of the commons conful- M V ===== PAGE seq 200 ===== 178 Prolocutor Domus Communis . conſultations in matters concerning the fame . This firſt happened in the Parliament an . 20 Rich . 2. when the king had maſtered his uncles , and became abſolute . In this Parliament ( Sir John Buffye , one of the king's minions , being ſpeaker ) a bill was exhibited to the commons , that the great and exceſſive charge of the king's houſe be amended and taken away , and against the multitude of biſhops , and la- dies in the king's houſe . No man will doubt but that Buffye did preſently acquaint the king with this ; and it was bruited alſo at that very time , that the king was diſpleaſed with the commons , for that they intended to diffuade his majeſty from fending certain lords with forces into Lombardy ; whereupon the commons came before the king , and denied there was any fuch ſpeech among them : and yet ( though this occafion was offered by themſelves ) the king took no notice of the bill touching his houſe , but willed the lord chancellor to tell ===== PAGE seq 201 ===== Prolocutor Domus Communis . 179 tell them , that his officers ſhould come and confer with them about weighty affairs . At the lords return from this conference the king came into the Parliament - houſe , and told the lords , that he understood that the commons had ( in this conference ) han- dled ſome matters against his royal estate and liberty , and commanded the lord chan- cellor to declare the fame . Whereupon the lord chancellor declared four bills propounded by the commons , whereof the fourth and laſt was the bill touching the exceſſive charge of the king's houfe , & c . which only diſpleaſed his ma- jeſty ; and he was highly offended that the commons , who are his fubjects , durft pre- fume upon any ordinance or government of the king's perſon or houſe ; which he com- manded the lords to tell the commons , and to charge the ſpeaker to declare his name that exhibited the bill : and there- upon Haxey was condemned in Parliament for a traitor for that bill , but afterwards par- M 2 ===== PAGE seq 202 ===== 180 Prolocutor Domus Communis . : pardoned . V. Rot . Clauf . & Pat . an . 20 R. 2. p . 3. m . 12 . By this you may fee how the king did caft about to have this matter related unto him in the upper house ; neither can it ap- pear by any antient record , that the king did ever take notice of any of the com- mons ſpeeches or conſultations , until they were reported unto his majesty in open Par- liament . V. an . 1 H. 4. n . 90. This Thomas Haxey exhibited his petition ( of right ) to reverſe the ſaid judgment , for that it was encountre droit & la course quel avoit este devant en Parlement . And the ſaid judgment was reverſed accordingly . And in the fame Parliament alſo , n . 104. the commons , among their petitions , do ſhew , that this Haxey was condemned encountre droit & la courſe quel avoit efte uſe devant en Parlement , en anientifement des custumes de les cões ; and do therefore pray the fame to be reverſed , & c . fi bien en accomplishment du droit come pur Salvation des liberties de les ditz cões . The ===== PAGE seq 203 ===== Prolocutor Domus Communis . 181 The next precedents are of Hen . 4. which are not much to be ſtood upon , becauſe he was an ufurper ; and therefore it behoved him to affect the love of his commons . In his time ( an . 7 & 8. ) the ſpeaker told him plainly , in open Parliament , that his houſe was far more chargeable , and yet leſs ho- nourable , than any of his progenitors , and it was well taken by the king , whereas Haxey was condemned for a traitor for a leſs mat- ter under Rich . 2. Yet ſome precedents of his time do plainly prove the antient privi- leges of the commons in this point , and therefore I will recite thoſe only . An . 2 H. 4. n . 11. The commons peti tion the king , that he would not fuffer any report to be made unto him of any matters either moved or debated amongst them , until they be concluded , nor give them any credit ; whereunto the king aſſented . An . 9 H. 4. n . 21. It is plain that the king is not to be told of any thing in com- munication with the commons , until it be declared by themſelves ; which was declared M 3 to ===== PAGE seq 204 ===== 182 Prolocutor Domus Communis . to be ſo upon this occaſion . The lords fent for certain of the commons , and told them what ſubſidy they thought fit to be given to the king , and wiſhed them to tell it their companions , and to adviſe them to yield thereunto ; unto which the commons did ( juſtly ) take exceptions , and made com- plaint thereof unto his majesty ; and there- upon it was declared and agreed , that it is lawful for the lords to commune of the fub- fidies by themſelves , and for the commons by themſelves ; but neither the lords " nor the commons are to make report thereof unto the king before they are agreed : and then the fame is to be declared by the ſpeaker in the accuſtomed manner . Vide thartam de Indemnitate in ſchedula ibidem . If the king might not take notice of the ſubſidy ( about which the lords and com- mons did often confer , and , being agreed , made an indenture thereof ) much less might any thing elſe moved amongst the commons be reported unto his majeſty before the commons were fully agreed thereon , and declared ===== PAGE seq 205 ===== Prolocutor Domus Communis . 183 declared the ſame by their ſpeaker , or other- wife , either unto the king or lords . And , if my poor opinion may be heard , what hurt or prejudice can it be to fuffer the commons to have their conſultations free , without check or control ? They will uſe no unſeemly terms of any man . They can do nothing of themselves ; neither can they propound any thing but by way of bill or petition . If they be ſuffered to proceed freely , their propoſition will the fooner be rejected or agreed on among themselves . If agreed on , it will be related to the lords or to the king : and when it comes before his maje- ſty , it is in his power ( if the lords ſtop it not ) to make a full ſtay thereof , if he like it not . Whereas on the contrary fide , to be denied free liberty of ſpeech ſeems very harſh unto them , and hath made them fo jealous of their privileges , that they have appropriated more unto themſelves of late than ever they claimed heretofore ; I mean , judicature , which they ever diſclaimed ; as ſhall be ſhewn hereafter . M 4 The ===== PAGE seq 206 ===== 184 Prolocutor Domus Communis . The third petition is for freedom from ar- refts . This petition was never made until of late years ; yet this privilege did ever be- long to the lords and commons , and to their fervants alſo , coming to the Parlia- ment , ſtaying there , and returning home . An . 18 E. 1. Bogo de Clare and the prior of Holy Trinity in London were complained of , for that the faid prior ( by procurement of the faid Bogo ) had cited the earl of Corn- wall in Westminster - hall , in Parliament - time , to appear before the lord archbishop of Canterbury , & c . whereupon they were fent for ad refpondendum domino regi , & Petro de Chament fenefcallo regis , Waltero de Fane- court marefcallo regis , domino Edmundo co- miti Cornubiæ & abbati de Westminst . eo quod dicta aula est infra libertates difti abbatis . They appeared and fubmitted themselves to the king ; whereupon they were fent to the Tower of London . Poftea venit prædictus Bogo & finem fecit domino regi pro predict . transgreſſione per duas mille marcas , & quoad prædictum ===== PAGE seq 207 ===== Prolocutor Domus Communis . 185 prædictum comitem * vid . mille libras pro tranfgreffione fibi fatta , & c . Vide Placita Parliamenti an . 18 E. 1. in an old manu- ſcript in the Tower and in the plea - rolls . In that year alſo there is a petition of the maſter of the Temple , to have leave to di- ſtrain for the rent of a houſe in London , ( held of him by the bishop of St. David ) for that he could not diſtrain tempore Par- liamenti . The anſwer is , Non videtur bo- neftum quod rex concedat & c . tempore Par- liamenti ; fed alio tempore diſtringat , & c . And Edw . 2. fent his proclamations to the juftices of afſize , quod fuperſedeant , ubi ba- rones & alii fummoniti ad Parliamentum re- gis funt partes . Vide Clauſ . an . 8 E. 2. m . 22 & 23. & an . 7 R. 2. m . 24 . But theſe precedents prove the privileges of the lords only ; the next ſhall of the commons alſo , and their ſervants . ' * In Ryley's Plac . Parl . it is vad . which , probably , ſtands for vadiavit , and is the right reading . An . ===== PAGE seq 208 ===== 186 Prolocutor Domus Communis . An . 5 H. 4. n . 71. inter petitiones com- munium . Item , Pray the commons , that whereas , according to the cuſtom of the realm , the lords , knights , citizens , and burgeſſes , coming to your Parliament at your command , ſtaying there , and return- ing home to their countries , and their men and fervants with them in the ſaid Parlia- ment , are under your ſpecial protection and defence , and ought not , for any debte , treſpaſs , or other contract whatsoever , to be arreſted , or any way imprisoned in the mean time ; and now ſo it is , that many ſuch men coming to your Parliament , and others their men and ſervants , during the faid Parlia- ment , have been arreſted by them who had full knowledge that they ſo arreſted were of the Parliament , or the men and ſervants of them of the Parliament as aforesaid , in contempt of you , great damage of the party , and delay of the buſineſs of your Parliament ; may it pleaſe you to eſtabliſh , that if any hereafter do arreſt any fuch man coming to the Parliament as aforesaid , or any ===== PAGE seq 209 ===== Prolocutor Domus Communis . 187 any of their men or ſervants remaining with them in the ſaid Parliament , during the faid Parliament , or any thing attempt con- trary to the cuſtom , he ſhall make fine and ranſome unto you , and render treble da- mages to the party grieved . R ° . Y ad fufficient remedie en le cas . I have tranſlated this petition or bill ex- hibited by the commons , ad verbum , out of the original . By this you fee who are pri- vileged ; viz . the lords , knights , citizens , and burgeſſes , and their ſervants , coming to Parliament , ſtaying , and returning . The petition of the commons is to have the contemners of this privilege puniſhed by fine and ranſom to the king , and treble damages to the party , which the lords re- jected , for that the party grieved had ſuffi- cient remedy . What remedy this was doth appear by the earl of Cornewall's cafe , an . 18 E. 1 . viz . that the party contemning the privi- lege of Parliament is to be committed to prifon , to make fine and ranſom to the king , 3 ===== PAGE seq 210 ===== 188 Prolocutor Domus Communis . king , to render to the party grieved ſuch damages as the lords of the Parliament ſhall award ; and to answer the king's ſteward and marshal , if the contempt be within the verge , for the wrong done to them ; which is a greater punishment than the commons required ; and happely they knew it not . But this being the antient cuſtom , and due by preſcription , the lords thought it more honourable to retain it , than to enact a new law to puniſh the contemners of their privileges , as if they had not been other- wife able to do it of themselves , or had no remedy before , but were ſubject to ſcorn and contempt . As the offender was puniſhed , fo the party arreſted was ſet at liberty ; and this was ſo notorious , that the commons ( at that time ) defired no pedreſs therein by their petition . It reſts to ſhew how the party ſo arreſted , was fet at liberty , which ſhall follow : but here firſt occurs another petition of the com- mons , touching affaults during the Parlia ment ; viz . ===== PAGE seq 211 ===== Prolocutor Domus Communis . 189 Eodem an . 5 H. 4. n . 78. Item , Pray the commons , that whereas all lords , knights , citizens , and burgeſſes , and their fervants , coming to Parliament by the king's writ , in coming , ſtaying , and returning are un- der your protection royal , and many mif- chiefs and impeachments do often happen unto the faid lords , knights , citizens , and burgeſſes , and their menial ſervants at thoſe times , as by murther , maimes , and batte- ries , by people lying awaite , or otherwise , for which due remedy is not yet provided ? and namely in particular in this preſent Par- liament , an horrible battery and miſchief is committed upon Richard Chedder , eſquire , who is come to this Parliament with Sir Thomas Brooke , knight , one of the knights for the countie of Somerset , and menial with him , by John Sallage , otherwise called John Savage , whereby the faid Richard Chedder is emblemiſhed and maimed even to the peril of death , that it would pleaſe you to ordain upon this matter ſufficient remedy , and for other fuch caſes ſemblable , ſo as the punish ===== PAGE seq 212 ===== 190 Prolocutor Domus Communis . punishment of him may give enſample and terror unto others not to commit the like miſchief in time to come ; that is to ſay , if any man ſhall kill or murther any that is come under your protection to Parliament , that it be adjudged treaſon ; and if any do maim , or disfigure any ſuch ſo come under your protection , that he loſe his hand ; and if any do aſſault or beat any ſuch ſo come , that he be imprisoned for a year , and make fine and ranſome to the king : and that it would pleaſe you of your ſpecial grace here- after to abſtain from charters of pardon in ſuch cafes , unless that the parties be fully agreed . R ° . For that the deed was done within the time of this Parliament , let a proclamation be made there where the deed was done , that the faid John Sallage appear , and render bim- felf in the king's bench within a quarter of a year after the proclamation made : and if he doth not , let the faid John Sallage be at- tainted of the said deed , and pay unto the partie endamaged his double damages , to be taxed ===== PAGE seq 213 ===== Prolocutor Domus Communis . 191 taxed by the discretion of the judges of the faid bench for the time being , or by inquest , if need be , and make fine and ransome at the king's will ; and ſo likewise let it be done in time to come in like cafes . Thus far the petition of the commons with the answer . Vide the printed book , how the ſtatute is drawn up upon this pe- tition and anſwer ; & vide Rot . Clauf . an . eodem . Conftat that the faid John Sallage did yield himself according to the procla- mation . This petition and anſwer may be com- pared to the former ; viz . that the lords would not difcedere from the remedy due by antient preſcription , which they had for affaults as well as for arreſts . Only they agreed to the commons herein , to provide for him that could not be apprehended after the fact done . An . 23 H. 6. n . 41. inter petitiones com- munium . The commons pray that every per- fon , being of the lord's houſe , or of the houſe of commons , having any aſſault or affray ===== PAGE seq 214 ===== 192 Prolocutor Domus Communis . affray made upon him at the Parliament , of coming , or going from thence , may have the like remedy therefore as Sir Thomas Parr had . R ° . The statutes therefore made shall be ob- ferved . It should feem the commons had forgotten the ſtatute made 5 Hen . 4 . . Concerning a commitment of a peer of this realm in the time of Parliament . The earl of Arundel's cafe , in a Parlia- ment of the 6th of February , an . 1 Car . R. will fully fatisfy this point ; and therefore I will add it here at large . The 14th of March , an . 1625 , the earl of Arundel being committed by the king to the Tower of London , ſitting the Parlia- ment , the houſe was moved to take the fame into their conſideration , and fo to proceed therein as they might give no juſt offence unto his majesty , and yet preſerve the pri- vileges of Parliament . ' The ===== PAGE seq 215 ===== Prolocutor Domus Communis . 193 The lord keeper of the great feal there- upon ſignified to the houſe , that he was commanded to deliver this meſſage from his majeſty unto their lordſhips ; viz . That the earl of Arundel was restrained for a misdemeanor which was perſonal to his maje- ſtie , and lay in the proper knowledge of his . majestie , and had no relation to matters of Parliament . Whereupon the houſe was put into a committee , and being reſumed , the lords ſub - committees for privileges , & c . were ap- pointed to ſearch for precedents concerning the commitment of a peer of this realm during the time of Parliament ; and the lord chief justice , Mr. Juſtice Dodderidge , and Mr. Juſtice Yelverton , were appointed to attend their lordſhips : To meet when they pleaſe , and to re- port , when they were ready for it , what their lordſhips think fit for the confidera- tion of the house . N The ===== PAGE seq 216 ===== 194 Prolocutor Domus Communis . The 15th of March 1625 , the lord trea- furer delivered a meſſage from the king in bæc verba , viz . Whereas upon a motion made by one of your lordships , the lord keeper did yesterday deliver a meſſage unto your lordſhips from his majestie , that the earl of Arundel was reftrayned for a misdemeanor which was perfonal to his maje- stie , and lay in the proper knowledge of his majestie , and had no relation to matters of Parliament : bis majestie hath now commanded sme to fignifie to your lordships , that be doth avow the meſſage , in fort as it was delivered , to have been done punctually according to his majestie's own direction ; and be knoweth that be bath therein done justly and not diminished the privilege of the house . And becauſe the committee appointed * yeſterday to fearch for precedents , & c . had not yet made any report to the houſe , there- fore the deciſion of this buſineſs was fuf- pended for this time . The ===== PAGE seq 217 ===== Prolocutor Domus Communis . 195 The 5th of April 1626 , the earl of Hert- ford made this report to the houſe , viz . The lords committees for privileges met on Munday last . The firſt queſtion that did ariſe amongſt them was , whether thoſe proxies are of any validity , which are deputed to any peer who fitteth not in Parliament himself ? and it was conceived that thoſe votes were loft ; whereupon the committee found this houſe to be deprived of five fuffrages by the ab- fence of the earl of Arundel , unto whom they were intrusted . And the committee finding by the journal - book , that the fub - committee , ( which was appointed to ſearch for prece- dents of privileges concerning the commit- ment of a peer in time of Parliament ) had not yet made report to this houſe ; they therefore conferring their notes of prece- dents together , whereof they had made fearch , they found no peer to have been committed ( the Parliament fitting ) without trial , or judgment of peers of Parliament ; N2 and ===== PAGE seq 218 ===== 196 Prolocutor Domus Communis . and that one only precedent of the biſhop of Winchester , in the book - caſe of the 3d year of king Edw . 3. which was here urged , cannot be proved to be in Parliament - time ; and this the lords of the grand committee thought fit to offer to the confideration of the house . Hereupon the houſe was moved to give power to the lords fub - committees for pri- vileges , & c . to proceed in the fearch of precedents of the commitment of a peer of this realm during the time of Parliament ; and that the king's council might ſhew them ſuch precedents as they have of the commitment of a peer during the time of Parliament , and that the ſaid fub - committee may make their report unto the houſe at the next accefs . All which was granted and agreed unto , and theſe lords were added unto the faid committee ; viz . The lord treaſurer , the lord preſident , the duke of Buckingham , the earl of Dorfet , the earl of Devon , the earl of ===== PAGE seq 219 ===== Prolocutor Domus Communis . 197 of Clare , lord viſcount Wallingford , lord viſcount Mansfield , the lord North . The king's council are appointed to at- tend the lords . They , or any five of them , the ſaid committee , to meet on Thursday in the Easter week at two of the clock in the painted chamber , and afterwards when they pleaſe . The 18th of April , the lord preſident 10 reported the proceedings of the lords fub- committees for privileges , & c . upon the commitment of the earl of Arundel ; viz . that the king's council had fearched , and ac- quainted the faid lords ſub - committees with all that they had found in records , chroni- cles , or ſtories concerning this matter , unto which the ſaid lords ſub - committees had given full anſwer , and alſo ſhewed ſuch pre- cedents as did maintain their own rights : all which follow , in hæc verba , viz . N3 Touching ===== PAGE seq 220 ===== 198 Prolocutor Domus Communis . Touching the imprisonment or restraint of lords in time of Parliament . Under Edw . 1. the privilege of the lords of Parliament was ſuch , that although the power of the church was ſo great , that it pretended to be ſcarce less than the highest temporal power ; yet when Edmund duke of Cornwall , in Parliament - time , was but cited by a proceſs from the archbishop of Canter- bury , which was far leſs than any imprifon- ment , he recovered 1000 marks damages against Bogo de Clare , that pronounced the citation , and both this Bogo , and the prior of St. Trinity that ſerved it , were fined in great fums to the king for the contempt alſo against him in the citation . 18 Edw . 1 . Plac . Parl . Rot . 1. n . 4 . 2. The cafe of archbishop Stratford , in the 15 Edw . 3. is obſervable here . It ap- pears , that though he were commanded to ſtay from the Parliament until he had an- fwered certain articles in the exchequer , touching ===== PAGE seq 221 ===== Prolocutor Domus Communis . 199 touching an account ; yet by a dutiful ſtand- ing on his right , he did get his place in the houſe ; and ſo ſenſible were the lords of that breach of their privilege in that reftraint of this archbishop , that they declared , that none of them ought to be queſtioned in any place but in Parliament ; and to that purpoſe alſo an act paſſed that year , though with the rest of that year it now ſtands re- pealed . Rot . Parl . 15 E. 3. m . 6 & 7. & tat . 15 E. 3. cap . 2 . 3. Between the Parliaments of 50 and 51 Edw . 3. William Wickham , biſhop of Winton , was called to an account for divers monies that he had received of the king , and fome other matter , and his temporal- ties were ſeiſed , and by command of John duke of Lancaster , in the king's name , he was not to come near the king by twenty miles : this was in Michaelmas term , 50 Edw . 3. In Hillarii , 51 Edw . 3. a Parlia- ment was held , where the biſhops and the clergy , that then were a third ſtate of the Parliament ( as they are called frequently in N 4 the ===== PAGE seq 222 ===== 200 Prolocutor Domus Communis . the antient time ) being preſſed to give the king a fupply , made their complaint to the archbishop of Canterbury , as the chief of their ſtate , De injuria illata eorum confratri & coepifcopo , domino epifc . Winton , & quo- modo non folum fibimet in ipſo , fed omnibus illis eft & toti libertati ecclefiæ derogatum ; unde constanter afferuerunt ſe de inſtantibus negotiis nullatenus effectualiter tractaturos , donec coadunarentur fingula cleri membra ; affirmantes revera instans negotium eum cum illis communiter tangere , & quod omnes tan- geret debere ab omnibus approbari . And al- though the archbishop was willing to have declined the meddling with their fuit ( be- ing of the duke's party ) ; yet he was ſo far urged by them , that at length he fent for him to come and take his place amongst them , as he did alſo ; notwithstanding no writ of fummons appears to have been fent to him that Parliament . Claus . 50 E. 3. p . 2. m . 6 . 4. The prefence of all the lords was thought by the houſe of commons to be fo neceffary , and a matter wherein they had fuch ===== PAGE seq 223 ===== Prolocutor Domus Communis . 201 ſuch intereſt , that they defired that all the lords that were abſent might be fent for : but it was anſwered , that it would be too long a delay of the Parliament , but ſuch as were near ſhould be fent for . Rot . Parl . 20 R. 2. n . 8 . 5. The lord Grey being impriſfoned by Owen Glendour in Wales , the commons con- ceived they had so much intereſt in the pre- ſence of every lord there , that they peti- tioned the king to give the lords of Roos and Willoughby leave to provide his ranſom , which was 1000 marks , which was granted . Rot . Parl . 4 H. 4. n . 13 .. 6. A bill paffed both the houſes in the 5 Hen . 4. wherein it is affirmed , that , ac- cording to the cuſtom of the realm , the lords , knights , citizens , and burgeſſes , and their fervants , coming to the Parliament , and there ſtaying , and returning home again , ought not to be arrested , or in any manner imprisoned in the mean time for any debt , account , treſpaſs , or other con- tract whatsoever . It was defired , that if any - ===== PAGE seq 224 ===== 202 Prolocutor Domus Communis . - any did offend against the privilege , he ſhould fuffer fine and ranſom , and pay tre- ble damages ; but the king's anſwer is , r ad fufficient remedy en le cas . So that there was no doubt made of the privilege , though a defire were , of a greater remedy than the law had yet provided . Rot . Parl . 5 H. 4 . n . 71 . 7. The commons in 8 Hen . 6. in their bill for Lark , a fervant to Will . Milred , a burgeſs of Parliament ( which bill paſſed both houſes ) affirm , that the privileges of Parliament were clear , that no member was to be arreſted in Parliament - time , but for treafon , felony , or furety of the peace . Rot . Parl . 8 H. 6. п . 57 . 8. It was refolved , upon great advice , in 31 Hen . 6. that no member of Parlia- ment was to be arrested , ſaving in cafes of treaſon , felony , breach of the peace , or upon a condemnation had before the Par- liament , which ( as the law is to this day ) must be understood of an arreſt of a com- moner , upon an execution , before his time of ===== PAGE seq 225 ===== Prolocutor Domus Communis . 203 of privilege of Parliament . Rot . Parl . 31 Η . 6. n . 28 . 9. In the 34 Hen . 8. the king himſelf , in his ſpeech touching Ferrer's cafe ( who be- ing a burgeſs was taken in execution , but diſcharged by order of the commons houſe ) ſays , that his learned council had informed him , that all acts and proceſſe , coming out of any other inferiour courts , muft for the time ceafe , and give place to the Parlia- ment as the highest ; and that whatsoever offence or injury is in Parliament - time of- fered to the meanest member of the houſe , is to be judged to be done both against the king and the whole court of Parliament . And the chief justice , Sir Edward Moun- tague , and the rest of the judges , confirmed with divers reaſons what the king ſaid to that purpoſe . 34 H. 8. Holling shed , p . 956 . 10. Though a lord be fued at the fuit of the king in the Star - chamber , for a contempt or riot , & c . yet the fuit is to be stayed , & o . by privilege of Parliament in Parliament- time . 2 1 ===== PAGE seq 226 ===== 204 Prolocutor Domus Communis . time . Cafe of lord Vaux , 9 Febr . 1625 . J. H. Lords . 1 Precedents alleged by Mr. Attorney Ge- neral , to prove , that a lord of Par- liament may be committed in Par- liament - time for a perſonal offence done to the KING , though it be neither treaſon , felony , nor breach of the peace ; with the answers to the faid precedents . 1st Precedent . Philip earl of Arundel was committed , and not for treaſon , ſitting the Parliament , an . 28 Eliz . for which Mr. At- torney cited Cambden , in the firſt part of his hiſtory of queen Elizabeth . Nota . This Parliament began the 29th of October , on which day the ſaid earl was not preſent ; ultimo die Ottobris he was pre- ſent , when the ſpeaker was preſented ; and then the Parliament was continued unto the 4th of November following , and then the faid ===== PAGE seq 227 ===== Prolocutor Domus Communis . 205 faid earl was not preſent , nor the 5th , 7th , 8th , 9th , nor 10th of that November , though his name is inſerted in the lift of the lords . All other days of that ſeſſion , which con- tinued to the 2d of December , the faid earl's name is omitted ; and then the Parliament is continued till the 15th of February fol- lowing , on which day the Parliament began again ; and in all that journal the ſaid earl's name is omitted . Answer 1. Cambden , out of whoſe An- nals the cafe is cited , faith exprefly , that , after the Parliament was ended , the earl , propoſing to go beyond the ſeas , wrote a long letter to the queen , complaining of the malice of his enemies , and of the mif- fortune of fome of his ancestors that had fuffered in this ſtate , and touching alſo the liberty and exercise of his confcience , which he meant to gain to himself in other coun- tries , where the Roman catholic religion was exerciſed ; which letter he meant ſhould have been delivered after his paſſage over : but ===== PAGE seq 228 ===== 206 Prolocutor Domus Communis . but his purpoſe being discovered , he was taken in Suffex , while he was entering on his journey , and thence brought back , and then committed to the Tower . And for the omitting his name in the journal , on many days of the Parliament of 28 Eliz . that is no proof at all of his being com- mitted in the time of Parliament ; for there are omiffions of lords names in divers days of the journal very frequently , when yet , without queſtion , they were not committed . 2d Precedent . The earl of Hertford was committed to the Tower by queen Eliza- beth , an . 5 . That the commitment was in Parliament- time , he alleged , that the Parliament began the 12th of January , an . 5 Eliz . and conti- nued until the 10th of April ; thence pro- rogued to the 2d of October ; thence by many prorogations unto the 13th of Sep- tember , an . 8 Eliz . and averred , that the faid earl was committed ( not for treaſon , & c . ) during the prorogation . To prove this , ===== PAGE seq 229 ===== Prolocutor Domus Communis . 207 this , he cited Cambden's Annals in English , 5 Eliz . Answer 2. The earl of Hertford was com- mitted long before the 5th of Eliz . as ap- peareth by Cambden's Annals , where he placeth both his commitment and his cen- fure in the Star - chamber about the begin- ing of 1562 , that is , in the 4th of Eliz . So that the Parliament of 5 Eliz . beginning not till the 12th of January , it is plain that he was both committed and cenfured long before the Parliament . 3d Precedent . Fisher bishop of Rochester committed in Parliament - time , an . 25 H. 8 . for his opinion to maintain the pope's fupre- macy , which was not treaſon by ſtatute un- til the year following : for this he cited Martin's Chronicle . Vide Parl . an . 25 of Hen . 8. that the faid biſhop of Rochester was not preſent all that Parliament , as appear- eth by the journal . Answer 3. The biſhop , though all were granted to be true that Martin faith of him , was ===== PAGE seq 230 ===== 208 Prolocutor Domus Communis . was not committed in the time of Parlia- ment , but after the Parliament ended ; and that both for miſpriſion of treaſon and for treafon . Firſt , One of his offences is ſuppoſed to have been the denying to take an oath of ſupremacy , ordained by the ſtatute of 25 H. 8. cap . 222. for the defence of that act , the refuſal whereof was miſpriſion of treaſon by the fame act . But the firſt time this oath was offered to any man , was the very last day of that Par- liament , that is , the 30th of March , when the form of it was made , and remains yet in the journal of that year ; ſo that his re- fuſal of that oath must be either on the very laſt day ( on which it seems it was not , becauſe he is not mentioned in the journal to be then preſent ) or after the end of the Parliament ; for before that time never was any man put to ſwear any fuch oath . Secondly , To this offence is added in Martin , that he contested , and proteſted againſt , the act of Parliament touching the diffo- ===== PAGE seq 231 ===== Prolocutor Domus Communis . 209 diffolution of the marriage of the queen Katherine and the confirmation of that with queen Anne , for which he was committed , and fuffered as a traitor : but until a month after the Parliament it was not treaſon to do any act against the ſecond marriage , as appeareth in the body of that ſtatute : and after a month ended , that is , from May following , it was by that ſtatute , made trea- fon to do any act in derogation of it ; fo that neither his miſprifion of treaſon , nor his treaſon ( for which Martin faith he was committed ) nor his commitment , could fall in the time of the Parliament ; nor doth Martin , or any other fay fo ; nor doth the journal , that hath not his name in that Par- liament , prove any fuch matter ; for in that very journal divers lords names are often omitted , that no man can conceive ſtood therefore at that ſame time committed . Yet perhaps there was reaſon enough to have committed him in the Parliament - time alſo , for he stood then very much ſuſpected of treaſon , as we may fee by the act of the fame ===== PAGE seq 232 ===== 210 Prolocutor Domus Communis . : ſame Parliament , wherein he was attainted of miſpriſion of treaſon . 25 H. 8. cap . 12 . But the truth of the cafe is , that the rela- tion of it in Martin is falſe here as it is delivered , and divers others mistake it alſo who wrote before him . This biſhop was not condemned that year at all , for aught ap- pears , nor committed ; but in 26 Hen . 8 . he was attainted by act of Parliament of miſpriſion for refuſing the oath , and there- upon committed ; and in the 27th year of Hen . 8. he was attainted of treaſon for ſpeaking traiterous words against the ſtat . of 26 Hen . 8. cap . 13 . 4th Precedent . An . 28 Hen . 6. the duke of Suffolk being accuſed by the commons of treaſon , put himself upon the king's grace , and not upon the peers ; and the king alone judged him ; and the lords did not demand him , but required that a pro- teſtation might be entered to ſave the pri- vilege of their peerage . Answer ===== PAGE seq 233 ===== Prolocutor Domus Communis . 211 Answer 4. In that cafe , for ſo much as concerns commitments ( which is the only queſtion now agitated ) it appears expreſly , that when it was in queſtion ( before the par- ticular accufations that the commons put up against him ) whether he ſhould be com- mitted by reaſon of a general fame raiſed against him , the lords only determined , that he ought not yet to be committed . Rot . Parl . 28 H. 6. п . 16 . Afterwards the commons accuſing him in particular , that by his invitation the French king was ready to invade the realm , at the request of the commons , it is ſaid , he was committed to the Tower ; but the roll mentions not by whom : but howfo- ever , there is nothing in that proceeding concerning commitment , that ſhews he was at all committed for any leſs offence than treaſon . And before the charge of treaſon laid against him , the lords alone determined , whether he ſhould be committed or no . Afterwards the commons put in two bills of accufation against him , one of divers treafons , Ο 2 ===== PAGE seq 234 ===== 212 Prolocutor Domus Communis . treaſons , the other of offences of a leſs na ture , and he is by writ brought from the Tower to anſwer ; and then defires copies of the accufations , which are granted him : and the king , by advice of all the lords , then committed him to the award of three eſquires , to be kept in a tower at Westmin- ſter . Ibid . n . 48 . Now for the king's judging him in time of Parliament , which is the point objected , the cafe goes on thus : The 13th of March , which was four days after , he made his anſwer to divers particu- lars , the king and the lords fitting in Par-- liament . The 14th being Saturday , the chief juf- tice , by the king's commandment , remem- bered all the lords of what was done the day before in this matter , and asked what advice they would therein give to the king . At which time they deferred their advice until the Monday following : but on Monday nothing was done ; and on Tuesday the king fent for the lord chancellor , and all the lords ===== PAGE seq 235 ===== Prolocutor Domus Communis . 213 fords that were in town , to his palace at Westminster ; and when they were all aſſem- bled , he fent for the duke alſo , who came and denied divers of the offences , and fub- mitted himself wholly to the king's rule and government , to do with him as he lift . Thereupon the lord chancellor , by the king's commandment , told him , That he conceived that the duke , not putting him on his parage , had fubmitted himself wholly to the king's rule and governance ; where- fore , touching the treaſon , the king held him neither clear nor guilty ; and touching the other offences , the king , by force of your fubmiffion ( as the words of the roll are ) by his own advice , and not reporting him to the advice of his lords , nor by way of judgment ( for he is not in place of judgment ) putteth you to his rule and governance ; that is to ſay , that you before the first of May next coming ſhall abſent yourself out of this realm of England for five years . 03 And ===== PAGE seq 236 ===== 214 Prolocutor Domus Communis . And inſtantly upon this , ſo ſaid by the chancellor , the viscount Beaumont , on the behalf of all the lords , and by their advice , affent , and defire declared , That this , that was ſo decreed and done by him , concern- ing the perſon of the ſaid duke , proceeded not by their advice and counſel , but was done by the king's own demeanance and rule , and defired that this may be entered in the Parliament - roll with this proteſtation , That it ſhould not be , nor turn in preju- dice nor derogation of them or their poſte- rity ; but that they might have and enjoy their liberty and freedom in caſe of their parage hereafter , as freely and largely as ever they or any of their ancestors enjoyed before this time . Upon this it is now objected , that the king here judged him , and the lords demanded him not . But it is , firſt , plain , that it was no judgment at all . The chancellor ſays expreſly , it was neither by way of judgment , nor in place of judgment . It was only a de- claration made to him by the king , out of Parlia- ===== PAGE seq 237 ===== Prolocutor Domus Communis . 215 د Parliament , that he ſhould abſent himself out of the kingdom for five years , & c . And this declaration was made by way of rule and governance of him , and not by way of judgment . Secondly , a judgment could not be fo given against him , neither was it any legal baniſhment ; for , by the ordinary courſe of the common law , there is no punishment by banishment ; and that which hath been in examples , hath been by judgment given in Parliament , as appears in that famous caſe of the dukes of Hereford and Norfolk , under Rich . 2 , and others at that time . And for the lords demanding him , there was no need at all or colour why they ſhould have demanded his perſon ; for he was not reſtrained from them , but was ex- trajudicially bid abfent himself only out of the kingdom , and of his own will to obey the king . When he was about to do ſo , he was taken upon the fea , and there ſlain . And for the matter of judgment and pro- ceeding against him , which ſhould other- 04 wife ===== PAGE seq 238 ===== 216 Prolocutor Domus Communis . wife have been before the lords againft him , they fufficiently ſaved their right by proteſting firſt , that all that was done to the duke by the king , was only by the king's own demeanance and rule , and that this ſhould not prejudice their right of par- age , or jus paritatis , which is their right of judging as peers , as it is called in the pro- teftation of the clergy , when they left the houſe , because they would not be party to judgment of blood in the II Rich . 2 . 5th Precedent . An . 8 Hen , 6. the com- mons petitioning for the discharge of Wil liam Lark , arrested in execution during the Parliament , and that the king would be pleaſed alfo to ordain , that no lord , knights , citizens , and burgeſſes , nor their ſervants , coming to the Parliament , may be arrefted during the Parliament , unless it be for trea- fon , felony , or breach of the peace , the king granted the firſt part of their petition , but quant al remnant le roy s'adviſera . Answer ===== PAGE seq 239 ===== Prolocutor Domus Communis . 217 Answer 5. To this the answer is full , that the latter part of the bill doth com prehend more than it was fit the royal affent ſhould be given unto , or more than was , or at this day is , the law of Parliament . For it is , that no member , of either houſe , be arrested or detained in prison dur- ing the Parliament , ſaving in theſe three cafes . To be arrested , is to be taken by the officers , by proceſs , or otherwise . To be detained in prison , is either to be detained after an arreft , or after a commitment from the bar of fome court , which is never called an arreft , though in truth it be one . So that the bill defired , not only that none ſhould be arrested or detained upon an ar- reſt , during the Parliament ( which is the only privilege ſuppoſed in the body of the bill ) but alſo , that none ſhould be detained in priſon during the Parliament ; whereas there is no doubt , but that any of the houſe of commons , or their ſervants , or the fer- vants of lords , being detained in priſon , upon an execution , ſerved upon them be fore ===== PAGE seq 240 ===== 218 Prolocutor Domus Communis . fore the time of privilege of Parliament ; or being in execution , in any other ordinary courſe of justice , before that time , ought to be detained ſtill , as it is practifed at this day . And accordingly alſo a fourth limita- tion is added to thoſe three in the 31 Hen . 6 . in Thorp's cafe , where treaſon , felony , ſurety of the peace , and condemnation before the Parliament , are the cafes excepted : ſo that there being more aſked by the bill than the privilege of Parliament allowed , there was reaſon enough why the king afſented not to it . 6th Precedent . An . 1 Hen . 4. the biſhop of Carlisle was arreſted by the lord marshal in Parliament - time , and not for treaſon , & c . for he was committed to the abbey of St. Alban's , which was no priſon for traitors . Answer 6. The biſhop was committed for as high a treaſon as could be uttered ; for he exprefly denied Hen . 4. to be king , in open Parliament . Hollingshead , p . 512 . And ===== PAGE seq 241 ===== Prolocutor Domus Communis . 219 And for his being committed to the abbey of St. Alban's , that or any other place with- out queſtion , at the pleaſure of the king , was a prifon for traitors , as well as others . 7th Precedent . An . 5 Hen . 4. the lords of Parliament claimed their privilege to judge the earl of Northumberland in reſpect of the ſtatute of 25 Edw . 3. and not in re- ſpect of privilege of Parliament . Answer 7. The lords , in that caſe , ex- preſly claim and exercise their right of judg- ment , both in matter of treaſon and matter of treſpaſs . They firſt conſider the ſtatute of 25 Edw . 3. of treaſon , and then the ſta- tutes againſt liveries . Thereupon they judge the earl's offence not to be treaſon , or fe- lony , but they judge alſo that it was tref- paſs only ; and for that they judge alſo , that he ought to make fine and ranſom at the king's will . So that upon the one ſta- tute , as judges in Parliament , they judge the fact to be no treaſon ; upon the other , to ===== PAGE seq 242 ===== 220 Prolocutor Domus Communis . to be trefpaſs ; and ſo give their judgment as judges of their peers , as well in treſpaſs as treaſon . And the iteration of their being judges in Parliament , in this cafe in the roll , is an expreſs mention and claim of their privilege alſo . 8th Precedent . An . 15 Edw . 3. the king denied the archbishop of Canterbury to come into the Parliament - houſe until he had an- ſwered certain anſwers objected against him in the exchequer , and then alſo the king denied his entrance ; yet at last , at the in- terceffion of the lords , he was admitted . For this Mr. Attorney cited Mathew Par- ker de Antiquitate Eccl . Brit . Answer 8. It is true that the king denied him for fome time to come into the houſe , until he had anſwered thoſe articles ; but he did , upon challenging of his right as a peer , and baron of the kingdom , come in , before he had anſwered them ; and fo well he understood the right of his pairalty , that though the Parliament - houſe door was ſhut againft ===== PAGE seq 243 ===== Prolocutor Domus Communis . 221 1 against him , where he was kept out by vio- lence , he yet ſtood there , and profeſſed he would not go thence , until he was either fuffered to come in , or elſe ſome cauſe were ſhewed why he ſhould not . And what the lords thought of his being kept out of the houſe , or queſtioned in any other court , fitting the Parliament , may appear in the roll of that year , where , while he was kept out , they defired the law to be declared touching queſtioning of peers in any other court but in Parliament ; and thereupon a committee of twelve lords was made to exa- mine in what cafe peers ſhould be bound to anſwer in Parliament , and not elfewhere . And the committee's report is general , Que les pieres de la terre ne deivent estre areſnez ne meſnez en judgment , fi non en Parliament & per leur pieres . And the ſame day that this was reported , the archbishop came into the houſe ; where he defired of the king that he might be tried , which the king granted . 4 9th Pre ===== PAGE seq 244 ===== 222 Prolocutor Domus Communis . 9th Precedent . An . 3 Edw . 3. termino Pafc . the biſhop of Winchester was indicted in the king's bench , for departing from the Parliament at Salisbury . Answer 9. This is the fame Stratford that was archbishop of Canterbury in that cafe of 15 Edw . 3. It is plain that the whole proceeding against him was long after the Parliament , from whence he departed . The Parliament was kept at Salisbury ( not Salop , as it is falſely printed in the year - books ) and began in quinden . Michaelis . It ended 31 Octobris following , as appears by the writs for levying the expences of the knights and burgeſſes . Cl . an . 2 E. 3. m . 15. dorf . And the next Parliament is ſummoned by writ dated the 14th of June , 3 Edw . 3 . Claus . in dorfo m . 19. Now Edw . 3. began his reign the 25 January ; ſo that from the 31 October in the 2 Edw . 3. to the 14 June in 3 Edw . 3. there was neither Parliament held , nor any fummons fent forth ; in that time falls Easter term , wherein the biſhop of Winton . was queſtioned in the king's bench , ===== PAGE seq 245 ===== Prolocutor Domus Communis . 223 bench , as appears both in the year - book , Pafch . 3 E. 3. fol . 9. and in the rolls of the cafe ; ſo that it proves nothing at all to the point in queſtion , being done out of Par- liament . Theſe being read , it was agreed upon by the whole houſe , That the privilege of this house is , that no lord of Parliament , fitting the Parliament , or within the usual times of privilege of Parliament , is to be imprisoned , or restrained , without sentence or order of the house ; unless it be for treason or felony , or for refusing to give furety for the peace . And it was thereupon ordered , that the faid lords fub - committees for privileges , & c . or any five of them , ſhall meet this afternoon to confider of a remonſtrance of the privileges of the peers of Parliament , and of an humble petition to be made unto his majesty to enjoy the fame . 19 April . The lord preſident reported the remonftrance and petition of the peers , con- cerning the claim of their privileges from arreſts 5 ===== PAGE seq 246 ===== 224. Prolocutor Domus Communis . arreſts and imprisonments during the Par liament , which was conceived by the lords fub - committees for privileges , according to the order of the houſe the 18th of April ; the which was read 1 & 2 vice in hæc verba , viz . The remonstrance and petition of the peers . May it pleaſe your majesty , we the peers of this your realm now aſſembled in Par- liament , finding the earl of Arundel abſent from his place , that ſometime in this Par- liament fat amongſt us , his preſence was therefore called for ; but hereupon a mef- ſage was delivered unto us from your ma- jeſty , by the lord keeper , that the earl of Arundel was reſtrained for a misdemeanor , which was perſonally to your majesty , and lay in the proper knowledge of your ma- jeſty , and had no relation to matter of Par- liament . This meſſage occafioned us to enquire ===== PAGE seq 247 ===== Prolocutor Domus Communis . 225 enquire into the acts of our ancestors , and what in like cafes they had done , that fo we might not err in any dutiful reſpect to your majesty , and yet preſerve our right , and privilege of Parliament ; and after diligent ſearch , both of all ſtories , ſtatutes , and re- cords that might inform us in this cafe , we find it to be an undoubted right and conftant privilege of Parliament , That no lord of Par- liament , fitting the Parliament , or within the uſual times of privilege of Parliament , is to be imprisoned or reſtrained , without fentence or order of the houſe , unless it be for trea- fon or felony , or for refuſing to give furety for the peace . And , to fatisfy ourſelves the better , we have heard all that could be al- leged by your majesty's learned council at law , that might any way infringe or weaken this claim of the peers ; and to all that can be ſhewed or alleged ſo full fatisfaction hath been given , as that all the peers in Parlia- ment , upon the queſtion made of this pri- vilege , have una voce conſented , that this is the undoubted right of the peers , and hath been P ===== PAGE seq 248 ===== 226 Prolocutor Domus Communis .. been inviolably enjoyed by them . Where- fore , we your majesty's loyal ſubjects and ſervants , the whole body of the peers now affembled in Parliament , moſt humbly be- feech your majesty , that the earl of Arundel , a member of this body , may preſently be ad- mitted , with your gracious favour , to come , and fit , and ſerve your majesty and the com- monwealth in the great affairs of this Par- liament , and we shall pray , & c . This remonſtrance and petition being read , it was generally approved of by the whole houſe , and agreed to be preſented to his majesty by the whole houſe : And further agreed , that the lord prefi- dent , the lord ſteward , the earl of Cam- bridge , and the lord great chamberlain , ſhould preſently go to the king , to under- ſtand his pleaſure , when they ſhould attend him . And the ſaid lords being returned , the lord preſident reported , that his majesty had appointed this day , between two and three , for ===== PAGE seq 249 ===== Prolocutor Domus Communis . 227 for the whole houſe to attend his majesty with the faid remonſtrance and petition , in the chamber of prefence at Whitehall . And it was agreed , that the lord keeper ſhould then read the ſame unto the king , and preſent it unto his majeſty . 20 April . The lord preſident thus re- ported the king's anſwer unto the remon- ſtrance delivered unto his majesty yesterday . My lords , Ye have spent some time in this buſineſs , and it being of some consequence , I should be thought rash , if I should give a sudden an- fwer ; and therefore I will advise of it , and give you a full answer in convenient time . 24 April . The houſe was called ; and the earl of Arundel being called , the lord keeper ſignified to the houſe , that his majesty hath taken into his confideration the petition ex- hibited by their lordſhips the 19th of April , concerning the earl of Arundel , and will re- turn anſwer thereunto with all expedition . 2 May . P2 V ===== PAGE seq 250 ===== 228 Prolocutor Domus Communis . 2 May . It was this day ordered , that the lord keeper do move his majesty from the houſe for a ſpeedy and gracious anſwer unto their petition on the behalf of the earl of Arundel . 4 May . The lord keeper ſignified unto their lordſhips , that , according to the order of the ſecond of May , he had moved his majeſty from the houſe on the behalf of the earl of Arundel , who answered , That it is a cause that he hath a great deal of care of , and is willing to give your lordſhips fatisfac- tion , and hath it in his confideration how to do it , but hath been interrupted by other busi- neſſes , wherein Mr. Attorney hath bad occa- fion of much conference with him ( as your lordships are acquainted ) but will with all conveniency give your lordſhips satisfaction , and return you an answer . 9 May . The houſe being moved to peti- tion the king touching the earl of Arundel , theſe lords were appointed to ſet down the form of the faid petition ; viz . The lord preſident , the earl of Effex , the bishop of -5 Norwich , ===== PAGE seq 251 ===== Prolocutor Domus Communis . 229 Norwich , the biſhop of Coventry and Lich- field , the lord Ruffel , the lord Denny , the lord Montague ; who reported the fame in writing , as followeth . 1 May it pleaſe your Majesty , Whereas the whole body of peers now aſſembled in Parliament did , the 19th of April , exhibite to your majesty an humble remonftrance and petition , concerning the privilege of peers in Parliament , and in particular touching the earl of Arundel , whereupon we received a gracious anſwer , that in convenient time we should have a full anſwer , which we have long and duti- fully attended ; and now at this time , ſo great buſineſs being in handling in the houſe , we are preſſed by the buſineſs to be humble ſuitors to your majeſty for a gracious and preſent anfwer . Which being read , was approved by the houſe , and the faid committee appointed to preſent the fame unto his majesty from the P3 houfe , ===== PAGE seq 252 ===== 230 Prolocutor Domus Communis . houſe , at ſuch time as the lord chamberlain ſhall ſignify unto them that his majeſty is pleaſed to admit them to his preſence . 11 May . The lord preſident reported the king's anſwer unto the petition from the houſe , touching the earl of Arundel , viz . My lords , I did little look for fuch a meſſage from the house . I have been of the house , and did never know fuch a meſſage from the one house to the other : therefore when I receive a message fit to come from you to your ſovereign , you shall receive an answer . The lord preſident further reported , that the lords committees appointed to deliver the ſaid petition unto the king did there- upon withdraw , and require him ( the lord prefident ) humbly to defire his majeſty , to be pleaſed to let them know , unto what point of the faid petition he takes this ex- ception . 2 And ===== PAGE seq 253 ===== Prolocutor Domus Communis . 231 And that his majesty willed him ( the faid lord prefident ) to ſay this of himself , viz . The exception that the king taketh is at the peremptoriness of the term , to have a pre- ſent answer . And the king wonders at their impatience , fince be bath promised them an answer in convenient time . Hereupon the houſe altered their former petition , leaving out the word ( present ) and appointed the former committee humbly to preſent the fame to his majeſty , at fuch time as the lord chamberlain ſhall ſignify unto them , when his majesty will be pleaſed to admit them to his prefence . 13 May . The lord prefident reported the king's anſwer unto the petition of this houſe , concerning the earl of Arundel ; viz , It is true , that the word ( preſent ) was fomewhat strange unto me , because you do not use it from one house to another : but now that I know your meaning , you shall know this from me , that you shall have my answer So soon as conveniently I can : and this I will affure you , it shall be such an answer , as you Shall P4 ===== PAGE seq 254 ===== 232 Prolocutor Domus Communiš . 1 .. Jhall fee I will not trench upon the privileges of your house . 17 May . Their lordſhips being moved to renew their humble petition to the king from the whole houſe , on the behalf of the earl of Arundel , theſe lords were appointed . to draw up the faid petition ; viz . The lord preſident , the lord chamberlain , the earl of Dorfet , the earl of Devon , the earl of Mul- grave , the viſcount Saye and Seale , the lord North ; who having penned and reported the fame to the houſe , it was read in hac verba , viz . May it pleaſe your Majesty , The cauſe that moves us now humbly to attend your majesty in our whole body , as at firſt we did , is becauſe we obſerve that the houſe of common's have ſpeedily recei- ved a member of theirs , being committed ; we the peers , being ambitious to deſerve of your majesty , and to appear in the eye of the world as much reſpected in our rights and privileges as any peers or commons have ===== PAGE seq 255 ===== Prolocutor Domus Communis . 233 have ever been , acknowledging you a king of as much goodneſs as ever king was , do now again humbly beſeech your majeſty , that the earl of Arundel , a member of our houſe , may be reſtored to us , it ſo much concerning us in point of privilege , as that we all fuffer in what he ſuffers in this his reftraint . Which petition was approved of , and or- dered to be preſented , at ſuch time as the lord chamberlain ſhall ſignify his majesty's pleaſure to admit their lordſhips to his pre- fence . 19 May . The lord chamberlain ſignified to their lordſhips , that his majesty is pleaſed that this houſe attend him at two of the clock this afternoon at Whitehall . 20 May . His majesty's anſwer unto the petition of the houſe concerning the earl of Arundel , the 19th of May , at Whitehall , is reported ; viz . My ===== PAGE seq 256 ===== 234 Prolocutor Domus Communis . My lords , I fee that in your petition you acknowledge me a king of as much goodness as ever king was , for which I thank you ; and I will en- deavour , by the grace of God , never to de- Serve other : but in this I obſerve that you contradict yourselves ; for if you believe me to be such as you say I am , you have no rea- fon to mistrust the fincerity of my promises ; for whereas upon often petitions made by you to me concerning this business , I have pro- miſed to give you a full answer with all con- venient speed , by this again importuning of me , you seem to mistrust my former promises . It may be said , there is an emergent cause , for that I have delivered a member of the house of commons . In this , my lords , by your favour , you are mistaken , for the causes do no way agree ; for that he that was commit- ted of the house of commons was committed for words spoken before both houses , which being fuch as I had just cause to commit him , yet , because I found that they might be words only misplaced , and not ill meant , and were ===== PAGE seq 257 ===== Prolocutor Domus Communis . 235 ſo conceived by many honest men , I was con- tented upon this interpretation to release bim , without any fuite from the lower house , whereas my lord of Arundel's fault was di- rectly against myself , having no relation to the Parliament . Yet , because I see you are fo impatient , I will make you a fuller answer than yet I have done , not doubting but that you will reft contented with that . It is true , I committed him for a cause which most of you know ; and though it had been no more , I had reason to do it : yet , my lords , I affure you I have things of far greater importance to lay to his charge , which you must excuse me to tell you at this time , because it is not yet ripe , and it would much prejudice my fer- vice to do it . And this , by the word of a king , I do not speak out of a desire to delay you , but as soon as it is poſſible you shall know the cause , which is such , as I know you will not judge to be any breach of your privileges ; for , my lords , by this I do not mean to ſhew the power of a king , by diminishing of your privileges . This ===== PAGE seq 258 ===== 236 Prolocutor Domus Communis . This being read again , it was ordered , the committee for privileges to meet on Monday next , at two of the clock poft me- ridiem , and to confider how further to pro- ceed with dutiful reſpect to his majesty , and yet ſo as may be for the preſervation of the privileges of the peers of this land , and the liberties of the house of Parliament . 24 May . The lord prefident reported the petition agreed on by the lords committees for privileges , & c . to be preſented unto the king , which was read in hæc verba , viz . May it pleaſe your moſt excellent Majefty , Whatever our care or defire is to preferve our right of peerage , yet it is far from our thoughts , either to diftruſt , or expreſs any thing that ſtands not with the affection and duty of moft loyal and loving ſubjects : and therefore in all humilitie we caſt ourſelves before your majesty , aſſuring ourſelves , in that facred word of a king , that with all poſſible convenience your majesty will pleaſe either ===== PAGE seq 259 ===== Prolocutor Domus Communis . 237 either to reftore the peer to his place in Par- liament , or expreſs ſuch a cauſe as may not infringe our privilege . Which was generally approved of , and ordered to be preſented to his majeſty by the whole houſe , and the earl of Carlisle and the lord Carleton to go preſently , and know the king's pleaſure , when they ſhall attend his majeſty . Who , being returned , reported , that his majeſty had appointed this afternoon at two of the clock for the fame . 25 May . The lord keeper delivered the king's anſwer unto the petition of the houſe yesterday at Whitehall to be read , which followeth in hæc verba , viz . My lords , Your often coming to me about this business made me somewhat doubt least you did distrust me ; but now , fince I see you rely wholly on me , I aſſure you , that it shall prevail more upon me than all importunities ; and if ye had done ===== PAGE seq 260 ===== 238 Prolocutor Domus Communis . done this at first , I should have been more carefull to have given you content , and now I affure ye , that I will use all possible speed to give you satisfaction , and at the farthest , before the end of this Parliament . This being read the ſecond time , the houſe was moved , that all buſineſs might be laid afide , and that confideration might be had how their privileges may be pre- ſerved unto pofterity ; and the houſe being put into a committee for the freer debate thereof , and afterwards reſumed , it was or- dered , the houſe to be adjourned till to- morrow , and all buſineſs to ceafe . 26 May . The lord keeper delivered this meſſage from the king , viz . His majesty bath willed me to fignify unto your lordſhips , that he doth marvail that his meaning in his last answer ſhould be mistaken ; and , for the better clearing of his intention , hath commanded me to deliver unto your lord- Ships his further answer , which is , that your lordships last petition was so acceptable to his majesty , ===== PAGE seq 261 ===== Prolocutor Domus Communis . 239 majesty , that his intent was then , and he is ſtill resolved , to satisfy your lordſhips fully in what you then defired . It is ordered , that all buſineſs be ad- journed till this day ſevennight . And memorandum , that the duke of Buck- ingham began to ſignify unto their lord- ſhips , that he would decline his defire to have the king's council allowed him to plead his cauſe : but the lords would not hear him , becauſe they would entertain no buſineſs ; and ſo the houſe was adjourned to the fecond of June . 2 June . The lord keeper delivered a mef- fage from the king to this effect . His majesty bath commanded me to deliver to your lordſhips a meſſage touching the earl of Arundel ; that his majesty hath thought of that business , and hath advised of his great and preffing affairs , which are such as makes him unwilling to enter into dispute of things doubtful ; and therefore to give clear fatisfac- tion touching that cafe , whereby you may the more cheerfully proceed in the business of the house , ===== PAGE seq 262 ===== 240 Prolocutor Domus Communis . house , be bath endeavoured as much as may be to ripen it , but cannot yet effect it , yet is resolved , that by Wednesday sevennight at the furthest , he will either declare the cause , or admit him to the house , and addeth fur- ther , upon the word of a king , that if it Shall be sooner ripe , which he bath good cause to expect , he will declare it with the ſoonest ; and further , that if the occafion do enforce to stay to the time prefixed , yet he doth not purpose to set such a short end to the Parlia- ment , but that there shall be ample and good Space between that and the end of the feffion , to dispatch affairs . This meſſage being delivered , the houſe was adjourned ad libitum , and put into a committee , and being refumed , it was agreed all other buſineſs to ceaſe , but this of the earl of Arundel's concerning the privilege of the houſe , and the houſe to meet thereon to - morrow morning , and to be put into a committee to confider thereof ; and ſo the houſe was adjourned to the next day . 3 June . ===== PAGE seq 263 ===== Prolocutor Domus Communis . 241 3 June . The lord keeper delivered a mef- ſage from the king to this effect , viz . That in the matter concerning the earl of Arundel , bis Majesty hath been very careful and defirous to avoid all jealousy of violating the privileges of this house , that he continueth still of the same mind , and doth much desire to find out some expedient way , which might Satisfie your lordships in point of privilege , and yet not binder his majesty's service in that particular ; but because this will require ſome time , his majesty ( though his great affairs are instant and preſſing ) is unwilling to urge your lordships to go on therewith , till bis majesty hath thought on the other ; and therefore bath commanded me to fignifie his pleasure , that his majesty is contented your lordships adjourn the house until Thursday next ; and in the mean time his majesty will take this particular bufi- ness into further confideration . It is agreed , that the lord keeper ren- der unto his majesty from the houſe their humble thanks for his gracious reſpect unto their privileges : and then the lord keeper demanded ===== PAGE seq 264 ===== 242 Prolocutor Domus Communis . demanded of the lords , whether their lord- ſhips would adjourn the houſe until Thurf- day ; whereunto it was agreed ; and all buſineſſes to ceaſe until the faid Thursday . 8 June . The lord keeper delivered this meſſage from his majeſty , viz . That on Saturday last his majesty fent word to the house , that by this day he would send them such an answer concerning the earl of Arundel , as should satisfie them in point of privilege ; and therefore , to take away all dispute , and that their privileges may be in the same estate as they were when this Par- liament began , bis majesty bath taken off his restraint of the said earl , whereby he hath li- berty to come to the house . The earl of Arundel , being preſent , did render his humble thanks unto his majeſty for this his gracious favour unto him , and gave their lordſhips alſo moſt hearty thanks for their often interceſſions for him unto the king , and proteſted his loyalty and faithful ſervice unto his majeſty . § 8 . ===== PAGE seq 265 ===== Prolocutor Domus Communis . 243 § 8. How the party arrested hath been fet at liberty . An . 8 H. 6. n . 57. William Lark , ſervant to William Mildred , a burgeſs of Parliament , being arreſted , and imprisoned in the Fleet , upon an execution , out of the king's bench , upon complaint made thereof by the com- mons , the king , by advice of the lords , at the request of the commons , and by con- ſent of the plaintiff , ordered the faid Wil- liam Lark to be delivered out of prison : and that after the end of the Parliament , the plaintiff ſhall have execution again by proceſs , as if there had been no execution had before . An . 31 H. 6. The Parliament began at Reading 6th March , and continued until the 28th day of March , and then , after divers prorogations , it began again at Westminster the 14th of February following . In the in- terim , between the prorogation in April and the acceſs the 14th of February following , Thomas 2 ===== PAGE seq 266 ===== 244 Prolocutor Domus Communis . Thomas Thorpe , the ſpeaker , is arrested in execution , at the fuit of the duke of York . The commons made request to the lords for their ſpeaker's liberty . The lords demanded the opinion of the judges ( touching the ar- reſt in time of prorogation ) and denied him his liberty ; whereupon the commons were commanded to choose a new ſpeaker . An . 39 H. 6. n . 9. Walter Clarke , a bur- geſs of Chippenham , in the county of Wilts , being committed to the Fleet for fundry condemnations , as well to the king as to others , and outlawed upon ſome of them at the fuit of the king and of others , is diſcharged , and fet at liberty out of the Fleet , at the petition of the commons to the king and lords , and that without bail or mainprize . An . 12 E. 4. at the like petition of the commons , William Hide , a burgeſs of Chip- penham , in Wilts , being in execution in the king's bench , is delivered by a writ out of the chancery , ſaving the Plaintiff's right to have execution again , after the Parliament ended , n . 55 . ===== PAGE seq 267 ===== Prolocutor Domus Communis . 245 An . 17 E. 4. n . 35. it is enacted , That John Attwill , a burgeſs for Exeter , being condemned during the Parliament in the exchequer upon eight ſeveral informations , by the pursuit of John Taylor of the fame town , shall have as many writs of fuperfe- deas therefore , as he will , until his coming home . Here arifeth a doubt , whether the party privileged might be delivered out of the exe- cution , without an act of Parliament , that is , without the conſent of both houſes and the king . There may be much diſpute upon this queſtion . The ſtrongest allegation against it is , that it will prejudice the plaintiff's ex- ecution . But , ſince the party privileged is not to be arreſted for any debt , treſpaſs , or contract , prout an . 5 H. 4. n . 71. nor can be arreſted during the Parliament , but for treaſon , felony , or breach of the peace , prout an . 8 H. 6. n . 57. my opinion is , that the arreſt upon an execution for debt , tref- paſs , or contract is merely void , and then Q3 it ===== PAGE seq 268 ===== 246 Prolocutor Domus Communis . it can be no prejudice to the plaintiff , but he may have a new execution after the end of the Parliament : ſo that an act to deliver him that is ſo arreſted , or to ſave the plain- tiff's rights for a new execution , is ex abun- danti , and needleſs . And , under correction be it ſpoken , the declaration of the judges in * Thorp's cafe , viz . That there is no general ſuperſedeas to Jurcease all process , must be understood for all time , and not for all proceſs , thereby to exempt * The opinion of the judges , delivered by the chief justice , in Thorp's cafe , an . 31 Н. 6 ... Rot . Parl . n . 25 , 26 , viz . As for declaration of the proceedings of the lower courts , in such cases as writs of ſuperſedeas of privilege of Parliament be brought and delivered , the chief justice faid , There be many and divers ſuperſedeas of privilege of Parliament brought into the court , but there is no gene- ral ſuperſedeas brought to furcease all process ; for if there hould be , then this high court of Parliament , that miniſtreth all justice and equity , should let the process of the common law , and so it should put the partie complainant without remedie ; ===== PAGE seq 269 ===== Prolocutor Domus Communis . 247 exempt executions . And their declaration at that time alſo , That if any person that is a member of this high court of Parliament , be arrested in such cases as be not for treason or felony , or furety of the peace , or for a con- demnation had before the Parliament , it is used that all such persons shall be released of Such arrests , & c . cannot be understood to except arreſts upon execution , ſitting the Parliament , but of fuch arreſts , in the in- terim between the adjournment and the ac- ceſs , as Thorp's was ; for otherwise , to ſay that the privilege is from arreſts for debt , and yet to be ſubject to arreſts upon exe- cution for debt , is mere frivolous , and but remedie ; for so much as actions at common law be not de- termined in this high court of Parliament . And if any per- fon that is a member of this high court of Parliament be arrested in fuch cases as be not for treason or felony , or furety of the peace , or for a condemnation bad before the Parliament , it is used that all such persons should be re- leafed of fuch arrests , and make an attorney , so that they may have their freedom and liberty freely to attend upon the Parliament . Q4 a ſhew ===== PAGE seq 270 ===== 248 Prolocutor Domus Communis . a ſhew of privilege , and no privilege in- deed . And whereas the judges did then further declare , That it is used , that all per- fons ſhould be released of such arrests , and make an attorney , so that they may have their freedom and liberty fully to entend upon the Parliament ; I am of opinion , that in ſuch caſes they did not use to make any attorney at all ; for the party had a fuperfedeas to ſtay all proceedings against him . For it is a breach of privilege to commence but a fuit in Parliament - time againſt a member there- of ; or elfe Bogo de Clare had not been pu- niſhed for citing the earl of Cornwall , whenas the earl might appear by a proctor , an , 18 E. 1. nor had the master of the Temple his petition been denied to diſtrain upon a houſe of the biſhop of St. David in Parlia- ment - time , whenas the biſhop might make an attorney to proſecute a replevin , an . eo- dem E. 1. nor would king Edw . 2. have commanded by proclamation , that the juf- tices of affize ſhould fuperfedere , where ba- rons or others fummoned to Parliament were ===== PAGE seq 271 ===== Prolocutor Domus Communis . 249 were parties , they then not being arreſted , but defendants only . It is not enough that a member of Parliament be free in perfon only , but in mind alſo . But how can his mind be free , if he be fubject to executions , and being arreſted , be without remedy for his liberty , unleſs by a folemn act made by conſent of king , lords , and commons ? So that I conclude , leaving others to their own ſenſe in this point , that all arreſts upon executions are merely void in this cafe ; that the party ſo arreſted might be fet at liberty by a fuperfedeas out of the chancery ; and that fuch deliverance is no prejudice to the plaintiff , the former arreſt being none , but merely void . But if I be demanded for antient prece- dents , I anſwer , there are none recorded ; for that the fuperfedeas was granted of courſe , being due , and needed no petition for it . Yet there are precedents of latter times to prove it directly ; viz . Journal . H. Com . die Merc . 22 Febr . an . 18 Eliz . Report was made by Mr. Attorney of the dutchy , froma ===== PAGE seq 272 ===== 250 Prolocutor Domus Communis . 4 from the committee for the delivery of Mr. Hall's man ( Edward Smalleye ) ar- reſted in execution , that the ſaid com- mittees found no precedent for the ſetting at large by the mace any perſon in arreſt , but only by writ ; and that by divers pre- cedents of record peruſed by the faid com- mittees , it appeareth , that every knight , citizen , and burgeſs of this houſe , which doth require privilege , hath uſed in that cafe to take a corporal oath before the lord chancellor or lord keeper of the great feal of England for the time being , that the party for whom ſuch writ is prayed , came up with him , and was his fervant at the time of the arreſt made . And thereupon Mr. Hall was moved by the houſe , that he ſhould repair to the lord keeper , and make oath in form aforesaid , and then to proceed to the taking of a war- rant for a writ of privilege for the faid fer- vant , according to the faid report of the faid former precedent . By ===== PAGE seq 273 ===== Prolocutor Domus Communis . 251 By this appears the remedy for their li- berties out of arrests , and that executions are not exempted ; for Mr. Hall his man was then in execution , as appears after- wards in the ſame journal . I find not that the burgeſs did take an oath in caſe of pri- vilege for his own liberty ; happely the ſhe- riffs return , or a certificate thereof , was fuf- ficient . The writ of privilege being ſo eaſy to be had , what needed any petition to be made by the commons to the king and the lords for the fame ? And as there is no precedent for this in the time of Edw . 3. Rich . 2 . Hen . 4. nor Hen . 5. ſo there are none to the contrary ; and the lords in queen Elizabeth's time did uſually , of their own authority , de- liver their fervants out of execution , if ar- reſted in Parliament - time . But now this doubt is cleared by the ſta- tute of 1 Jac . cap . 13 , for new executions to be had againſt ſuch as are delivered out of execution by privilege of Parliament , and for difcharge of them , out of whoſe cuſtody ===== PAGE seq 274 ===== 252 Prolocutor Domus Communis . cuſtody they are delivered ; which ſtatute notwithstanding faith , that it was heretofore only doubted of , whether fuch deliverance by privilege of Parliament were prejudicial to the plaintiff or no . A queſtion may be touching the ſtay of a fuit against a Parliament - man in time of privilege , whether the fuperfedeas hath been uſed to be directed to the judge or to the plaintiff ? For reſolution hereof , though an . 8 E. 2 . a general fuperfedeas went out to the judges to ſtay all fuits where ſuch are parties , and particular writs of fuperfedeas have uſually been granted out of the chancery in latter times ; yet an . 1 Eliz . an injunction out of the chancery was granted unto the plaintiff , to ſtay a trial at the afſizes in Parliament- time between Broxham and the lord Wil . loughby . And in 1º Car . 23 Feb. an order of Par- liament was made , that a trial at the affizes ſhall be ſtayed , and that the plaintiff's coun- fellor and attorney ſhall not proceed therein , in ===== PAGE seq 275 ===== Prolocutor Domus Communis . 253 in the cauſe between Harriſon plaintiff , and Atkinson , ſervant to the earl of Devonshire , defendant . And note , that the lords rejected the pe- tition of John Watson , ſervant to the earl of Nottingham , who complained of one Tho- mas Brett for proceeding to a trial at the affizes , notwithstanding that Brett knew of his neceſſary attendance on the ſaid earl in time of Parliament ; for that the petitioner ought to have had an order from the houſe for ſtay of the faid trial . 1 April , an . 1 Car . Whereby it may feem , that to commence a fuit is a breach of privilege ; but it is none to proceed to a trial upon a fuit com- menced before , unleſs he be firſt counter- manded . And note , that theſe orders for ftay of trials , & c . are to be directed to the party plaintiff , his attorneys , & c . and not to the judges . For they cannot ſtay the trial , if the plaintiff will proceed , notwithstanding any fuch order ; for it is against the law . But the plaintiff may be punished , if he con- ===== PAGE seq 276 ===== 254 Prolocutor Domus Communis . contemn the lords order and break the pri- vileges of Parliament . § 9. In what cafes a new speaker bath been chosen . An . 1 H. 4. n . 62. The commons pre- ſented Sir John Cheyny , knight , for their ſpeaker , whom the king allowed . The next day , the faid Sir John , and the commons , came before the king , and Sir John declared , that for a fudden diſeaſe which happened , he was unable to ſerve , and that the commons had choſen Sir John Dorewarde , knight , in his place , beſeeching the king to allow of him ; which the king did , and commanded him to be ſpeaker , n . 63 . An . 1 H. 5. The commons preſented Wil- liam Stourton , their ſpeaker , the 18th May . The 22d of May the ſaid William Stourton made a ſpeech to the king , on the behalf of the commons ; and being required to exhi- bit ===== PAGE seq 277 ===== Prolocutor Domus Communis . 255 bit certain articles in writing , he immedi- ately promiſed ſo to do . On the 25th of May John Dorewarde did , on the commons behalf , deny that they had given their aſſent to exhibit the ſaid articles in writing , n . 9 . And on the 3d of June the commons preſented the faid John Dorewarde for their ſpeaker , whom they had chofen , for that the ſaid William Stourton lay fick in his bed , and was not able to execute the ſaid office , n . 11. It should seem that Stourton was fick for grief . Note , the king was not firſt ac- quainted with their choice of a new ſpeaker before they preſented him . An . 15 H. 6. The commons preſented Sir John Tyrrell , knight , their ſpeaker , in Ja- nuary . The 11th of March , the king underſtand- ing Sir John Tyrrell was fallen ſick , com- manded the commons to choose a new ſpeaker , which they did that day . An . 28 H. 6. Sir John Popham , knight , was preſented ſpeaker ; he desired to be ex- cufed ===== PAGE seq 278 ===== 256 Prolocutor Domus Communis . " : cuſed in reſpect of his age , and that a new choice might be made , whereunto the king agreed ; and thereupon the commons choſe and preſented Sir William Tresham , knight , the fame day . An . 31 H. 6. Thomas Thorp was preſented ſpeaker . After the adjournment of the Par- liament he was arrested in execution at the fuit of the duke of York . The commons at the acceſs the 14th of February pray his liberty , which was denied , and the com- mons commanded to choose a new ſpeaker . The 16th of February the commons ſent word that they had choſen Sir Thomas Char- leton , knight , for their ſpeaker in the place of the faid Thomas Thorp ; and the chan- cellor anſwered , that the king liked him , n . 29 . Theſe are all the antient precedents . An . 5 Eliz . Thomas Williams , eſquire , was preſented ſpeaker . The Parliament is prorogued divers times ; the ſpeaker dies . At their acceſs , an . 8 Eliz . 30th of Sep- tember , the commons ( by four of their house ) fignified 5 ===== PAGE seq 279 ===== Prolocutor Domus Communis . 257 fignified their ſpeaker's death to the lords , requeſting their lordſhips aid to intimate the ſame to the queen . The lords appointed the lord keeper and three more to accom- pany thoſe four ( being all privy - counſellors ) to the queen , and in the name of both houſes to declare the fame to her majesty , which was done . On the first day of October the commons were aſſembled in the upper house : and her majesty's commiſſion read , directed to the lord keeper , repeating the whole buſineſs ; commanding , conſtituting , and appointing the lord keeper , in her name , to call the commons before his lordſhip , and the lords in the higher houſe of Parliament , and there in her majesty's name to will and command them to refort to their accuſtomed place , and there to choose amongst themſelves a new ſpeaker : and after they have made their election , that three or four of them , for and in all their names , ſhall fignify the ſame unto her majeſty ; and thereupon her majeſty will fignify unto them on what day they R ===== PAGE seq 280 ===== 258 Prolocutor Domus Communis . they ſhall preſent him unto her . This is the effect of the commiffion . The next day the commons preſented Sir Richard Onflow , the queen's follicitor , for their ſpeaker . An . 14 Eliz . Robert Bell was preſented ſpeaker . The Parliament being prorogued divers times , he was made chief baron of the exchequer , and died . At the acceſs 16 January , an . 23 Eliz . the commons ac- quainted the lords with his death , and the ſame courſe was taken for a new election , prout antea , an . 8 Eliz . The commiſſion , an . 8 Eliz . for choice of a new speaker . Elizabeth , by the grace of God , queen of England , France , and Ireland , defender of the faith , & c . To our right truſty and right wel - beloved counsellor Sir Nicholas Bacon , knight , lord keeper of the great feal of England , greeting : Where in the begin- ing of this preſent Parliament , holden at West- ===== PAGE seq 281 ===== Prolocutor Domus Communis . 259 Westminster the 7th day of January , in the fifth year of our reign , the knights , citi- zens , and burgeſſes , being aſſembled in the ſame Parliament , were commanded by us to go to their accuſtomed place , and there to chooſe amongst themselves one to be their ſpeaker , according to the accustomed manner ; whereupon the fame knights , ci- tizens , and burgeſſes did elect and chooſe one Thomas Williams , eſquire , to be their ſpeaker ; and the fame their election did afterwards certifie unto us , which we did allow and ratify ; ſince which time , this our preſent Parliament hath been continued by divers prorogations , until the 30th of Sep- tember , in this preſent eighth year of our reign : at which day the lords ſpiritual and temporal , and alſo the faid knights , citi- zens , and burgeſſes , being afſſembled for this preſent Parliament , at Westminster , in their accuſtomed places , the faid knights , citizens , and burgeſſes have declared unto us , that the faid Thomas Williams fince the laſt ſeſſion of this preſent Parliament is dead , R 2 ===== PAGE seq 282 ===== 260 Prolocutor Domus Communis . dead , and thereupon have made their hum- ble fuit and , petition unto us , that they might have licence and commandment from us to proceed to elect amongst themselves one other to be their ſpeaker , for the reſt of this preſent Parliament yet to come ; wherefore , we having certain and perfect knowledge that the faid Thomas Williams is dead , as they have alleged ; and confider- ing their humble petition very meet and neceſſary to be granted , have appointed and conftituted you , and by theſe preſents we do will , command , conſtitute , and ap- point you , for us , and in our name , to call the faid knights , citizens , and burgeſſes be- fore you , and other the lords ſpiritual and temporal affembled in this our preſent Par- liament , in the higher houſe of Parliament at Westminster , and then for us , and in our name , to will and command the faid knights , citizens , and burgeſſes , to refort to their accuſtomed place ; and there to elect and chooſe amongst themselves one fufficient and able perſon to be their ſpeaker for ===== PAGE seq 283 ===== Prolocutor Domus Communis . 261 [ for the rest of this preſent Parliament yet to come ; and after they have ſo made their election , that then three or four of them , for and in all their names , ſhall fignifie the ſame unto us ; and thereupon we will fur- ther ſignifie our pleaſure unto them , what day and time they ſhall preſent the perfon elected before us , as heretofore hath been in like cafes accuſtomed to be done : where- fore our will and pleaſure is , that you do diligently attend about the doing of the pre- miſes , and execute the ſame with effect . In witneſs whereof we have cauſed theſe our letters of commiffion to be fealed with our great feal . Witneſs ourself at Westminster , & c . R. 3 CHAP . ===== PAGE seq 284 ===== [ 262 CHAP . VIII . RECEIVERS AND TRIERS OF PETITIONS . THE HE laſt ceremony uſed the firſt day of the Parliament is , that when the lord chancellor hath ended his ſpeech to the commons to choose their ſpeaker , then the clerk ſtands up , and reads , in French , the names of the receivers and triers of pe- titions . § 1. By whom receivers and triers of pe- titions were appointed , and when . Some records make it doubtful , whether the king and his council , alone , or the king , his council , and the lords , did ap- point theſe receivers and triers . I will re- cite the precedents , and then deliver my opinion . An . ===== PAGE seq 285 ===== Receivers and Triers of Petitions . 263 An . 6 E. 3. in the Parliament held at York , on Wednesday oftab . fancti Hillarii ; on the fame Wednesday , it is agreed by our lord the king and his council , that petitions be received , as was agreed in the last Parlia- ment . Then the record names the time for their delivery . And that the petitions be de- livered unto Sir Henry Edeneſtowe , clerk of the Parliament , Sir Thomas de B. Sir Tho- mas de E. & c . Item , it is agreed , that the archbishop of York , the bishop of Ely , & c . shall be triers , And ſo proceeds , and ſhews , how they are to be answered , & c . And the Parliament was adjourned to the next day , for that the lords were not fully come ; and the cauſe of ſummons was pronounced that next day , which was reckoned the ſecond day of the Parliament . An . 14 E. 3. at the Parliament held at Westminster , the Wednesday next after Mid- lent Sunday , in prefence of the king . Firſt , it is entered in the roll , that pro- clamation was made in Westminster - hall againft R 4 ===== PAGE seq 286 ===== 264 Receivers and Triers of Petitions . againſt wearing of weapons , riots , & c . and unlawful games near the Parliament - houfe ; then thus , & meſme le jour feurent les fouze- fcritz attitlez de faire les chofes fouzeſcritz ; cest a favoir , Sir Thomas de Brayton foit clerke du Parliament . Item , pur receivire les petitions d'Engleterre font affignez Mich , de W. Tho . de B. & c . Then , the time for the delivery , and the triers , of petitions . Then , that the Thursday next following the Parliament was adjourned unto Satur- day , & c . on which day was declared the cauſe of fummons . So here they are appointed in the prefence of the king , but it is not named by whom . An . 15 E. 3. Luna , in quinden . Pafcha , the roll begins thus . First , it is agreed , that Sir Thomas de Brayton be clerk of the Par- liament . Item , it is agreed by our lord the king , and those of his council who were then come , that a proclamation be made that none shall bear arms , & c . Then follows the ordinary proclamation . Item , ===== PAGE seq 287 ===== Receivers and Triers of Petitions . 265 Item , un crie fu fait , that whoſoever will exhibit petitions unto our lord the king and his council , that they exhibit them between this and Saturday next , & c . & feront af- fignez to receive the petitions of England , theſe under - written , viz . Sir Thomas de E. & c . and fo names the receivers and triers . Item , it is agreed , for that the prelates , earls , barons , and other grands are not yet all come this Monday , the first day of the Parliament , to continue the Parliament to the next day , being Tuesday , & c . From thence it was continued alſo to Wednesday , and from Wednesday to Thursday , for the fame cauſe ; and on Thursday the cauſe of fummons was propoſed . An . 17 E. 3. the Parliament was ſum- moned to begin on Monday , quinden . Pafc . the king and fome few lords came , and the Parliament was continued to the next day , being Tuesday ; on which Tuesday it was agreed , by the king and council , that pro- clamation be made againſt wearing of arms , : c . And ===== PAGE seq 288 ===== 266 Receivers and Triers of Petitions . And a proclamation was made the ſame day for delivering of petitions by Monday next to the king and his council . Et feront affignez to receive the ſaid peti- tions , & c . prout an . 15. And on Wedneſ- day following the cauſe of ſummons was declared . An . 18 E , 3. Luna , proxim . post oftab , Trinitat . the roll begins thus , Enprimes fait afſſaver qe a mesme le Lundy , there aſſembled in the Parliament - chamber , our lord the king and the prelatz and grandz underwritten , viz , The archbishop of Canterbury , the biſhop of Chichester , Bath , and Ely , and the earl of Huntingdon , together with ſome abbots and barons and knights of the counties . Et fu recitez devant eux , & c . the fummons of the Parliament to be as on that day , and the fimall appearance , wherewith the king was offended , & c . And the king com- manded to continue the Parliament to Tuef- day , being the next day , Item , ===== PAGE seq 289 ===== Receivers and Triers of Petitions . 267 1 Item , be it remembered , that our lord the king commanded proclamation to be made , & c . againſt wearing of weapons , & c . And on the faid Tuesday our lord the king , and the faid prelates , and the biſhops of London and Cardoil , together with the faid grands , afſſembled again in the faid chamber : Et illoques furent accordez les noms de ceux , qui receveroient les petitions du Parlement , en la manner qe s'enfuit ; cest af- Savoir , primerement , Jont affignez de recei- vire les petitions d'Engleterre , & c . And fo names the receivers and triers ; and becauſe the prelates and other grands were not come on the faid Tuesday , Si fu accordez & afſſentuz de continuer le Parlement tanq ; au Meskerdy , pur attendre la venue des ditz grandz ; & de ce Meskerdy tanq ; a Foedy ; on which Thursday the cauſe of fummons was propounded , & c . There are ſome other precedents of this nature , tempore E. 3. to ſhew that the king and fome lords met the firſt day of the Par- liament , and for that there appeared but a few ===== PAGE seq 290 ===== 268 Receivers and Triers of Petitions . few lords , the cauſe of ſummons was not then declared ; only receivers and triers of petitions were appointed , and the Parlia- ment continued unto another day . But the records do not ſay directly by whom they were appointed , prout an . 20 E. 3. Furent affignez , but ſays not by whom . An . 21 E. 3. Fu ordene que certeines per- fons feroient afſſignez pour recever les petitions . An . 25 E. 3. Sont affignez . An . 29. Confimile . By theſe it doth not directly appear by whom theſe receivers and triers were ap- pointed . That of 6 Edw . 3. faith , Par noftre feig- neur le roy & fon consell . By his council are here understood those of the privy council , who were fummoned to Parliament , and not the lords of Parliament , as ſhall be declared elfewhere . The reſt ſpeak indefinite that they were affigned , but name not by whom . Vide the Parliament - roll of 37 Edw . 3 . when the cauſe of fummons was declared first , ===== PAGE seq 291 ===== Receivers and Triers of Petitions . 269 firſt , before the names of the receivers and triers were publiſhed ( according to the uſe at this day , and of all Parliaments ſince the 29th of Edw . 3. ) and there it is thus in the end of the cauſe of fummons ; Et outre le dit roy volt qe fi nul ſe ſent grevez mette avant sa petition en ce Parlement , & il en avera covenable repons , & fur ce ad afſignez ascuns de ses clercs en la chancellerie recei- vours des ditz petitions ; then follow their names . Here it appears , that the king's will is , that if any find himself grieved , he exhibit his petition , & c . and be ( the king ) hath af- figned certain of his clerks of the chancery to be receivers , & c . An . 38 E. 3. & 43 E. 3. Confimile . An . 40 E. 3. The lord chancellor con- cludes his ſpeech touching the fummons ; The king's will is , que cheſcun qui ſe ſent grievez mette devant fa petition a ces [ qui ] font affignez de par luy de les re [ ceivre ] & auſſi de les trier . The ===== PAGE seq 292 ===== 270 Receivers and Triers of Petitions . The reſt ſpeak indefinite ; but theſe ſa- tisfy me fully , that none but the king , or the lord chancellor de par luy , appoints theſe receivers and triers , & c . I have peruſed all the records of Edw . 3 . of purpoſe for this , for that ſome doubt hath been made thereof . § 2. Who were appointed receivers , and who triers . Receivers of petitions were ever the maf- ters of the chancery ; the records name them elercs de la chancellerie , and no other were antiently appointed but they ; ſave that an . 6 E. 3. the clerk of the Parliament ( who I think was a master of the chancery alſo ) is appointed one . But none that had writs of fummons were appointed receivers , ſince 6 Edw . 3 . This order was conftantly obſerved whilft theſe receivers and triers were in uſe : but ſince they began to be out of uſe , and named pro forma tantum , the judges are mingled with them . ===== PAGE seq 293 ===== Receivers and Triers of Petitions . 271 As none that were fummoned to Parlia- ment were appointed receivers , ſo none but they who were ſummoned were appointed triers of petitions ; they were ever of the prelates , and nobles , and judges . And the chancellor and treasurer were appointed to be called when need required , and they could attend ; as fome records have it . An . 21 E. 3. the receivers and triers of petitions are named ; and that the triers of the petitions of England , & c . fhall call the king's ferjeants ; and the triers of the petitions of Gascoyne , & c . ſhall call unto them the juſtice and treaſurer of Ire- land for Irish buſineſs , if need be : then it follows , Et pur efforcer les auditors , & tryors des ditz petitions , as well for England as for other places , theſe under - named are or- dained ; The archbishop of Canterbury , the chan- cellor , the treasurer , and the chief justice ; to be with the said triers when they may en- tend it , and need shall be . 2 § 3 . ===== PAGE seq 294 ===== 272 Receivers and Triers of Petitions . § 3. Within what time the petitions were to be delivered . Primo die debet fieri proclamatio , primo in aula vel monafterio feu aliquo loco publico ubi Parliamentum tenetur , & poftmodum in civi- tate vel villa , quod omnes illi qui petitiones & querelas deliberare voluerint ad Parliamen- tum , quod illas deliberent a primo die in quin- que dies proxime sequentes . Modus tenendi Parliamentum MS . This order was antiently obſerved , as it may appear by the Parliaments of Edw . 3 . where the proclamation is often mentioned , vide 15. 17. 20. 25 Edw . 3 . In all the Parliament - rolls which record theſe receivers and triers , a day is limited for the delivery of theſe petitions ; feldom above fix days ; which hath some times been prolonged for two or three days , ex gratia regis . Prout , an . 25 E. 3. oftabis Purifica- tionis , & 25 E. 3. in feſto ſancti Hillarii . The ===== PAGE seq 295 ===== Receivers and Triers of Petitions . 273 4 The reaſon of this ſhort time for the de- livery of petitions was , for that the Parlia- ment did ſeldom laſt many days ; and there- fore they were then appointed alſo on the firſt day of the Parliament , although it was afterwards adjourned to another day . Here may be a doubt of the time for anſwering theſe petitions , whether during the Parliament only ? As many as time would permit were an- ſwered , fitting the Parliament ; and to that purpoſe the ſeveral triers had feveral places to meet in , and they were often put in mind by the chancellor to attend the fame , prout an . 25 E. 3. n . 8. in fine . §4 . What kind of petitions they were . They were for the moſt part petitions of private perſons for relief of any wrong done them , or for the king's grace , prout , An . 1 E. 3. Petitio B. de Badlesmere , for reftitution to lands and charters taken vio- lently from him . S Petitio ===== PAGE seq 296 ===== 274 Receivers and Triers of Petitions . Petitio Henrici com . Lanc ' , for delivery of deeds . Petitio Johannis de Vyenne , to be reſtored to his office . Petitio Thomæ de Northrope , to be al- lowed his coſts laid out in keeping the king's castle of Bromham . Petitio Will . filii Eudonis la Zouche , for reversal of an outlawry for murder . Petitio Thome de Berkelie , for his liber- ties of weyf and ſtray , & c . feized by the king . Petitio Rici . de Perers , to be allowed a debt , due by the king , in his account . Petitio ballivorum , & proborum hominum ville de Norwich , to be allowed 200 pounds which king Edward the ſecond borrowed of them . Petitio Lucie Multon , to have juſtice in a fuit begun in the king's bench against the king's father for certain manors . Petitio Eliz . Multon , against delay of juftice . Petitio ===== PAGE seq 297 ===== Receivers and Triers of Petitions . 275 1 Petitio Fran . Maffe , and other merchants ſtrangers , touching a wrong done them in France by merchant ſtrangers who are now in England . Petitio G. de Lacer , merchant of London , for redreſs touching a depredation in Lum- bardie , in partibus Bononia . Petitio H. S. againſt a piracy by four of the French ſhips , & c . And among theſe , are ſometimes peti- tions of a county , or a city , & c . prout eo- dem an . 1 E. 3. rot . 3. in dorso . Petitio hominum Westmerland , quod exo- nerentur de putera ( putura ] balivorum regis . Ibid . A petition of the Cinque Ports , for an explanation of their charter . Ibid . A petition of the dyers of London , againſt falſe fulling of cloth , & c . § 5. How the petitions were anſwered . Firſt , let us fee the direction .. In the times of Edw . 3. they were di- rected Au noſtre ſeigneur le roy & à son con- fel . S2 ===== PAGE seq 298 ===== 276 Receivers and Triers of Petitions . fel . Some few were otherwise , prout an . 11 E. 3. A confel nostre ſeigneur le roy mon- ftre A. de Weston . Au chancellor noſtre ſeigneur le roy monstre A. le povre priour de Tackley . Al treſhonorable ſeigneur Monfr . William de Clinton , fuplie I. de Tavyle , merchant du Portugal ; touching a robbery at fea . ( Lord Clinton was conftable of Dover , and admi- ral at that time , as I remember . ) But theſe occur very feldom ; yet they were received and answered . Generally , they were directed To our lord the king and bis council . The queſtion is , who are here meant by the king's council ? whether all the lords of Parliament , or they only who were of his privy - council . I was long of opinion , that by the council were meant all the lords of Parliament ; but if you obſerve how the anſwers were given to theſe petitions , you ſhall find , that the conſent of Parliament was very feldom required . : Vide ===== PAGE seq 299 ===== Receivers and Triers of Petitions . 277 Vide 6 E. 3. which is the firſt Parliament that mentions the manner thereof . And there , after the names of the receivers and triers are appointed , it follows ; Item , it is agreed , that the petitions which ſhall be tried and determined by the aforesaid prelates , barons , and justices , so appointed triers , shall be delivered over into the chan- cery under their seals , or under the seals of two or one of them at the least . And that the rest of the petitions ſhall reſt under the seals of the said triers in the custody of the clerks , until the next day , and so from day to day . And that the petitions , which are to be tried and determined coram rege , be tried before bis majesty , calling unto him whom he please . And that those petitions ſhall remain under the seals of the auditors , or some of them , until they be reported before the king , n . 3 . L Here you fee that the petitions are to reſt under the feals of the triers , and in the . cuſtody of the clerks ( that is , of the re- ceivers ) until they be anſwered ; and then S 3 to ===== PAGE seq 300 ===== 278 Receivers and Triers of Petitions . to be fent from day to day , as they are an- fwered , into the chancery . Except the petitions coram rege ; that is , thoſe which required the king's grace . They were to be tried before the king , and to reſt in the mean time under the feals of the au- ditors , viz . the triers . To prove that by theſe words ( le confeill ) are not meant all the lords of Parliament , but the king's council only , vide an . 21 E. 3. n . 63. the answer to a petition of the commons , viz . Il ſemble au conseil qil fait affaire pur grant bien fil pleſt au roy & a les grantz de la terre . Et puis noſtre ſeigneur le roy per aſſent des grantz commanda a la dite comen adonques esteantz devant luy de luy auiſer come , & c . * Touching an act of proviſion againſt Rome . Where I obſerve alſo a good teftimony , that biſhops are not grantz de la terre . They are not here understood , for they never meddled in any thing against the pope . And ===== PAGE seq 301 ===== Receivers and Triers of Petitions . 279 And the anſwers to theſe private petitions were ſuch as ( in my opinion ) required not the confent of Parliament , prout , If the petition were for wrong done by a private perſon : Rº . Let him have a writ in the chancery to inquire thereof , and thereupon fiat juftitia . If for allowance of any thing in their ac- count , & c . R. Let him have a writ in the chancery directed to the treaſurer and barons of the exchequer , to view and exa- mine the fame , and thereupon to make the allowance ; and the like . If for delivery of charters , or the like , in the king's custody . Ro . Let him have a writ in the chancery to the treasurer and barons of the exchequer , to make ſearch , c . If for reversal of an outlawry , or the like . Ro . Let him have a writ in the chan- cery to the juſtices of the king's bench , to cauſe the record to be brought before them ; and if there be error , to reverſe the fame . S 4 If ===== PAGE seq 302 ===== 280 Receivers and Triers of Petitions . If for piracy , or any other wrong done by merchant ſtrangers in foreign dominions . Ro . Let the petition be delivered in chan- cery , and upon hearing of the cauſe , let justice be done fecundum legem in tali cafu ufitatam . For theſe , and more fuch , peruſe the pe- titions of Edw . 3 . All their remedy is out of the chancery : yet , now and then , a petition is of fuch weight or difficulty , that the matter is re- ported to the houſe , and there openly heard and determined ; prout , the petition of the abbot of Thornton fuper Humber , touching lands recovered by him in the king's bench , whereof he was in poffeffion , and after- wards diſſeiſed by Hugh Despencer . • The answer is , Recordum & proceffus pre- dieti monstrentur in Parliamento , ita quod jus inde fiat , an . 1 E. 3. rot . 1. in dorfo . And the long petition of the two Corbets , codem an . which depended tempore E. 1 & 2. and by the proceedings it ſeems to have been difcuffed in Parliament an . 12 E. 2 . But ===== PAGE seq 303 ===== Receivers and Triers of Petitions . 281 But it was anſwered , an . 1 E. 3. by the triers thus : Soit ceste petition mande par brief du grant feal a Sire G. Leſcroop , justice du bank notre ſeigneur le roy , & foit mande a luy par mesme le brief qil face regarder tout le proces dont mencion est fait en cest petition , & appellez eux , qui sont appeller , ayele avant a fynal diſcuſſion de la dite be- foigne , fans qil ne ayle mye au jugment faunz le roy , an . 1 E. 3. rot . 9. dorſo . They fued for the caftle of Tremington , and divers other lands , which Roger de Vautort ( whoſe heirs they were ) gave unto Richard , king of Almaine ( the earl of Cornwall ) and to the heirs of his body ; the remainder to the heirs of the faid Rager Vautort . The petition of Elizabeth de Burgo is worth the obſervation . It is touching a recognizance enforced from her unto Edw . 2. not to receive any of his enemies ; not to marry without his licence ; nor to fell any of her land without his conſent : the copy of which recognizance was annexed to the petition . The answer is by the triers ; Porce ===== PAGE seq 304 ===== 282 Receivers and Triers of Petitions . Porce qe tefmoigne est qe le dit eſcript est en la garderobe , eit brief en chancellerie au gardeyn de la garderobe de fair venir le ſcript devant le confail fanz delay . Then . follows , Par quel endoſſement , the writ was made , which is there recited , and directed to the clerk of the privy seal ( who was alſo maſter of the wardrobe ) commanding him to bring the faid writing , coram confilio noſtro in pre- fenti Parliamento , & c . Teste meipfo , & c . Per petitionem de confilio . ( Which ſhews that the chancellor had no other warrant than the indorſement of the petition . ) The clerk of the privy ſeal , by virtue of this writ , brings in the ſaid writing , which being examined and delivered in full Par- liament , it was confidered by the lords and commons , that it was contrary to the laws of the land , and all reaſon ; and therefore it was damned , per agarde del Parliament , and delivered unto the ſaid Elizabeth . By this petition you may perceive , that what was done in full Parliament , is ſo re- corded . So ===== PAGE seq 305 ===== Receivers and Triers of Petitions . 283 : So the long petition of G. de Staunton , an . 14 E. 3. was viewed and read in full Parliament , and aſſented unto by all in full Parliament . It was to demand judgment in a cauſe depending in the common pleas , which was of fuch difficulty for point in law , that the judges did forbear to pro- ceed ; and ſo the lords of Parliament di- rected them on which ſide to give judg- ment . Note , that the commons joined with the Jords to damn the recognizance of Eliza- beth de Burgo , and ſo it was neceffary , to avoid a record ; but the commons did not join in aſſent touching G. de Staunton's peti- tion ; for there the lords did but direct juf- tice to be done in another court , according to the law . In the times of Rich . 2. the petitions were directed fometimes to the king and his council , as in Edw . 3 . Sometimes , a nostre trejdoute ſeigneur le roy & as noble ſeigneurs du Parlement . Sometimes , ===== PAGE seq 306 ===== 284 Receivers and Triers of Petitions . Sometimes , as honorables & foveraignes Seigneurs en cest Parlement . And fome , a noſtre ſeigneur le roy & a touz lez ſeigneurs & communes de fon roi- alme ; but they were public petitions , as that of the officers of the mint within the Tower of London , and the like . And the Parliaments fitting long in thoſe days , over they did in Edw . 3d's time , moſt of the answers to theſe petitions ( if not all ) were aſſented unto by all the lords , prout an . 15 R. 2. the petition of Joan , the wife of Sir Robert Swinbourn , knight , directed to the king and the lords , ſhewing , that the faid Sir Robert enfeoffed divers gentlemen of certain lands to the use of her , and of her young children , and of his last will and teſ- tament : and that Thomas Swinbourn , his fon and heir , entered violently upon the lands , and poffefſed himself of divers goods and chattels , & c . and by threats and mainte- nance kept her out , & c . The answer was thus . 2 This ===== PAGE seq 307 ===== Receivers and Triers of Petitions . 285 This petition being read in Parliament , and the reaſons of the one fide and the other , and of all the feoffees , preſent in Parliament , being heard , it is awarded by the king and all the lords , that the faid Thomas Swinbourn ſhall make full reftitu- tion , & c . And alſo , that the ſaid parties ſhall come before the council of the king , at a day certain to be limited them by the faid council , and there ſhew all their evi- dences , & c . And the council to make a good end , if they can ; if they cannot , to adjourn them over to the common law : and further , that the faid Thomas find to the petitioner , her children , and ſervants , and to the faid feoffees , and to the exe- cutors of his father's will , ſufficient fureties of the peace , and that he ſhall do no man- ner of maintenance , menace , nor other things , whereby the common law may be any way disturbed of its right courſe touch- ing all the ſaid matters . And moreover , becauſe the faid Thomas acknowledged , that he fent unto certain perſons a letter ( ſhewn in ===== PAGE seq 308 ===== 286 Receivers and Triers of Petitions . in Parliament ) of horrible menaces to the king's people touching this matter , he is awarded to the Tower of London , there to remain at the king's will . The which im- priſonment , at the inſtance of the duke of Yorke , the king afterwards pardoned , upon his good behaviour . I have recited this anſwer ſomewhat at large . By this I gather , and by fome an- fwers of Edw . 1. Edw . 2. and Edw . 3. that intricate buſineſſes were diſcuſſed , in open Parliament ( what anſwer foever the triers had prepared ) ; others of ſmaller moment were directed to be redreſſed by the chan- cery , without any further trouble to their lordſhips . But the commons were not privy to theſe anſwers , as I noted in thoſe of Edw . 3. un- leſs it were to fuch as otherwife legally could not paſs , prout an . 18 E. 2. Westm . craft . nat . Sanct . Johann . Baptist . A nostre Sr le roy & a fon . conſel monstrent ercevesques , evesques , countes , barons , & autrez genz de la cominaltie d'Engleterre , who petitioned , that ===== PAGE seq 309 ===== Receivers and Triers of Petitions . 287 ! that they might let to farm the waſtes be- longing to their manors , which they held of the king in capite , as well within foreſts as without , without the king's licence firft had : which petition is indorſed coram rege , and the king's anſwer is thus . Il ne puit estre fait ſanz novele ley , laquele chose fere la comminaltie de la terre ne vult mie uncore afſentir . こ In the times of Hen . 4. few petitions were directed to the king and his council . Some were directed to the king alone , ſome to the lords alone ; and ſome to the commons . But I find no anſwer by the commons . Only , if they were petitions of grace , the commons wrote this inſcription over the firſt line , viz . Soit baille as seigneurs pur parler a roy ; or Soit parle a roy per les ſeigneurs . The others were fent up to the lords without any direction ; and here firſt began the private bills , now exhibited in Parlia- ment . 5 Hen . 5 . ===== PAGE seq 310 ===== 288 Receivers and Triers of Petitions . Hen . 5. Hen . 6. and Edw . 4. There are fome bundles of petitions extant of theſe times ; but I cannot determine , whether they were delivered to the receivers of peti- tions or no . Many of them are directed to the commons , ſome to the king , ſome to the lords ; none to the king and his council . By their anſwers it seems , that theſe ( and thoſe alſo of Hen . 4. ) were aſſented unto in open Parliament , and none paft by the triers alone , as in the times of Edw . 3 . After theſe times we have no bundles of petitions . §6 . Petitions indorfed coram rege . Theſe were petitions of grace from the king , and therefore the triers might not anſwer them rege inconfulto . I will recite ſome of them , and the pro- ceedings thereupon , & c . viz . An . 1 E. 3. rot . 3. Thomas , biſhop of Worcester , petitioned , that , whereas he is charged in the exchequer with divers tenths granted ===== PAGE seq 311 ===== Receivers and Triers of Petitions . 289 . granted to Edw . 2. the ſaid tenths might be allowed him in certain bills in the ward- robe , and that payment might be made to him of the reſidue per aſſignation . eidem epifc . faciend . R ° . Let him ſhew his bills in the chan cery , and have a writ to the treaſurer and barons of the exchequer , to allow him , in the debts exacted of him in the exchequer , the ſum contained in theſe bills , & quoad affignationem fibi faciend . de refiduo fumme in eifdem billis contente , ponatur ista petitio coram rege . The petition of the biſhop of Winchester , ſhewing that the churches of Estmunds and Hameldon are annexed to his biſhoprick as things ſpiritual , and whereof the guardians of the ſpiritualities , fede vacante , are only to meddle , as the uſe is of other biſhopricks , yet Robert de Welle , guardian of the tem- poralities , hath levied the profits thereof , and accounted for them to the king , to the value of 400 marks , whereof he prayeth reſtitution . T R ° . ===== PAGE seq 312 ===== 290 Receivers and Triers of Petitions . ! R ' . Videtur confilio , quod occupatio de fruc- tibus hujusmodi ecclefiarum eft injurioſa , ſed propter poſſeſſionem habitam in hac parte , po- natur iſta petitio coram rege . Poftea retractata ista petitione coram rege & magno confilio , conceffum eft & concorda- tum , quod cuftodes temporalium infra ſcripti epifcopatus non se intromittant amplius tem- poribus vacationum de hujufmodi fructibus ec- clefiarum , an . 1 E. 3. rot . 9. dorfo . Here , at this time , ſome petitions coram rege were anſwered at the great council , which was often aſſembled at the end of the Parliament ; and there alſo were an- ſwered divers petitions of the commons , which were not answered in Parliament , as ſhall be ſhewn in the ſecond book . An . 14 E. 3. at the Parliament held after Midlent , all buſineſſes not being ended at Eafter , the Parliament was adjourned till Wednesday ſevennight after , and the king willed , that at that day the petitions , which were not already anſwered , ſhould be then heard , and duly anſwered ; and theſe under- named ===== PAGE seq 313 ===== Receivers and Triers of Petitions . 291 named were affigned to fit upon petitions coram rege , viz . The biſhop of Chester , the earl of Huntington , Monfr . Thomas Wake de Lydel , Monfr . John de Stonore , Monfr . Wil- liam de Shareſhull , & c . afſociez a eux les chan- cellor & treasurer , quant besoigne ferra , n . 28 & 29 . An . 25 E. 3. Receivers and triers being appointed , it followeth thus . And that alwaies there be preſent when the Said petitions be read , in cafe any of them doe touch the king's chamber , Sir Thomas de Brembre , or Sir Henry de Greyſtock , to give due information for the king , and to the king , when need shall be . An . 28 E. 3. Sir Henry de Greystock is ap- pointed to be called to all petitions which concern the lands or tenements reserved for the king's chamber . Theſe ( Brembre and Greystock ) were for petitions which con- cerned the king's chamber only , and not generally for all petitions which required the king's ſpecial grace and bounty . T2 An . ===== PAGE seq 314 ===== 292 Receivers and Triers of Petitions . An . 36 E. 3. n . 31. Whereas lords are affigned to hear petitions ; if any concern the king , they indorſe the bills coram rege , and ſo nothing is done ; the commons pray that the faid bills may be viewed before the lords , and by advice of the chancellor , trea- furer , and others of the king's counſel , an- fwered and endorſed , in manner as right and reaſon demands ; and this before the departure of the Parliament . R ° . Le roy le voet . An . 4 E. 3. apud Winton . inter Bundel . Petition . Robert de Vere , earl of Oxford , exhibited his petition for the office of great chamberlain of England , whereof his an- ceftors were ſeiſed in fee , by the grant of Henry king of England , until Hen . 3 . ouſted his father Robert de Vere , fauns juge- ment . The firſt anſwer is ; Let him come before the council , and ſhew his deeds and muni- ments . And having ſhewed his charter to the council , the fecond answer is ; Pur ce qe : 4 cest ===== PAGE seq 315 ===== Receivers and Triers of Petitions . 293 cest chose touche eſpecialement le roy , foit ceste besoigne devant le roy & fon confeil . The third anſwer to that petition is ; Soit ceste petition mande en chancellerie , & le chan- cellor , pris a luy les justices , & autres ſages du conseil ordeinent remedie en ce cas . An . 16 R. 2. n . 32. inter petitiones com- munium . Roberte Atmulle and Alice his wife prayen the king's pardon , for that they were wrongfully condemned for taking of 700 pound of treaſure trove at Gildford . R ° . Let them fue to the king , for this is no petition of Parliament . The meaning is , this is a petition of grace , and could not be anſwered by the council , rege inconfulto , ( Nota , the king's council prepared all the answers to the petitions of the com- mons . ) Compare with the anſwer to this petition the order made in the upper houſe of Parliament , an . 3 Jacobi . That bills of reſtitution to blood begin in the upper house only , and ought to be fi st figned by the king , T3 An . ===== PAGE seq 316 ===== 294 Receivers and Triers of Petitions . An . 1 H. 4. n . 118. among the petitions of the commons . The citizens of Lincoln pray to be eaſed of their fee - farme , being 180 pounds per annum , which they are un- able to pay . R ° . Let them fue to the king , who will be gracious . Which is as much in effect , as Ponatur ifta petitio coram rege ; and not to begin with the commons . An . 29 Ε . 3. n . 18. the petition of the commons touching alienations without li- cence , tempore H. 3 . R ° . Soit monstre , & declare a notre fr . le roy . §7 . Of petitions indorfed per auctorita- tem Parliamenti . The firſt of this fort I find an . 15 R. 2 . to the petition of Richard Pryour ; the di- rection is thus . A nostre tres puiſſant & tres gracieux fr . le roy & a fon tres honorable conſel en Parlement . He complains , that whereas divers lands in ===== PAGE seq 317 ===== Receivers and Triers of Petitions . 295 in the counties of Gloucester , Somerset , & c . ( which were the lands of Tho . de la River , fon and heir of Richard de la River , who held of Edw . 3. in capite , lately within age , and in ward to the king , and dying within age ) were delivered by the commandment of Edw . 3. unto him the ſaid Richard Pryor and Joane his wife , couſen and heir to the faid Thomas , for that Agnes , the fifter of the ſaid Thomas , was a nunne profeſſed in the abbey of Shafton , as by the records , & c . appeareth ; That preſently after the faid livery made , he and his wife were diſſeiſed by Richard Cleydon , and the ſaid Agnes , his concubine , who was a nunne profeſſed , and by Tho . Brook , & c . and their maintainors and fau- tors , for which they have been in ſuite theſe fifteen years , and are like to be utterly dif- inherited , & c . The answer is thus indorſed ; Let this petition be delivered in the chancery , and let the chancellor , by authority of Parlia- ment , cauſe the parties to come before him > in ===== PAGE seq 318 ===== 296 Receivers and Triers of Petitions . in the chancery , and there , the matter com- priſed in this petition being diligently viewed and examined , and the reaſons of the one part and the other heard , let that be done , by authority of Parliament , which right and reafon , & bane foy & bone conscience , re- quires in the cafe . I may doubt whether theſe words , by au- thority of Parliament , were added to coun- tenance this anſwer or no ; for if they had been omitted , yet the lord chancellor was directed by the Parliament to proceed , and his proceedings warranted thereby . I find divers other petitions ſo anſwered this Parliament , but not all . Divers other petitions were referred to be determined in the chancery that year , if they could not be determined by the com- mon law , without these words ; prout , the petition of Sir John Randly , knight , to be discharged of thirty ſhillings rent upon an hundred acres of aſſarted lands , part of his manor of Pay in com . Northton , which was ſometimes within the forest of Whittlewood , but fince difafforeſted by perambulation , ===== PAGE seq 319 ===== Receivers and Triers of Petitions . 297 The answer is ; Let this petition be de- livered in the chancery ; and the juſtices and the king's ſerjeants being called , and the matter well examined , let that be done which right and reaſon demands . But in the following times moſt petitions have the fame words , by authority of Par- liament . And it feems to be , that they were added , for that the parties were thereby di- rected to the chancery , whereas they might otherwise have remedy by the common law ; and ſued in Parliament only for that they were interrupted in their ordinary proceed- ings by menaces , or maintenance , or the like , whereby their ſuits in law were be- come long and intricate ; and the chancel- lor , happely , made dainty then to meddle in ſuch caufes ; and , peradventure , the de- fendant excepted againſt it , as may appear by this , that the commons exhibited their petition against this kind of anſwers , an . 8 H. 5. n . 12. in theſe words . Item , ===== PAGE seq 320 ===== 298 Receivers and Triers of Petitions . Item , prayen the commons , in this pre- fent Parliament , that if any man ſue a bill or petition indorſed by theſe words ( by au- thority of Parliament , let this bill or petition be committed to the council of the king , or to the chancellor of England , to execute and determine the contents thereof ) Whereas the faid bill or petition is not by the commons of the land required to be affirmed or affented unto ; That no man to fuch bill or petition ( un- leſs the affent or request of the commons be indorſed ) be bound to anſwer contrary to the laws of the realm of England . Unto which was anſwered , viz . Soit avise per le roy . FINIS . ===== PAGE seq 321 ===== ERRATA . P. 4. 1. 21. For comitivam , read comitatum . 20. 5. For effectuose , read affectuose . 108 . 10. For degrees , read degree . 1 ===== PAGE seq 322 ===== ===== PAGE seq 323 ===== 1 ===== PAGE seq 324 ===== 1 ===== PAGE seq 325 ===== ===== PAGE seq 326 ===== Princeton University Library 32101 071951428 ===== PAGE seq 327 ===== PRINCETON UNIVERSITY LIBRARY 11.0061429 1985-1980 ===== PAGE seq 328 =====