The Power of the Lords and Common in Parliament, Letter
The Power OF THE LORDS and COMMONS IN PARLIAMENT In point of JUDICATURE briefly diſcours'd. At the Requeſt of a Worthy Member of the Houſe of Commons.
SIR,
TO give you a ſhort an account of your Deſires as I can; I muſt crave leave to lay you, as a Foundation, the Frame or Firſt Model of this State.
When, after the Period of the Saxon Time, Harald had advanc'd himſelf into the Royal Seat; the Great men, (to whom but lately he was no more than Equal either in Fortune or Power) diſdaining this Act of Arrogancy and Ambition, called in William Duke of Normandy, (the moſt Active Prince of any in theſe Weſtern Parts, and renowned for the Victories that he had ſucceſsfully Atchieved againſt the French King, then the moſt Potent Monarch in Europe.)
This Duke led along with him to this work of Glory many of the Yonger Sons of the beſt Families of Normandy, Picardy and Flanders; who, as Voluntiers, accompany'd the undertaking of this Fortunate Man.
The Ʋſurper being Slain, and the Crown, by War, gained; to …cure Certain to his Poſterity what he had ſo Suddenly gotten, he ſhar'd out his Purchaſe retaining in Each County a Portion, to ſupport the Soveraign Dignity, which was ſtiled Demenia Regni; (now the Ancient Demeſnes) and aſſigning to others his Adventures ſuch Proportions, as engaged to himſelf the Dependency of their Perſonal Service (ſuch Lands only ezcepted, as in Free Alms, were allotted to the Church) Theſe were termed Barones Regis or the Kings Immediate Free-holders; for the word Baro imported then no more.
As the King to Theſe, ſo Theſe to their Followers, Subdivided part of their Shares into Knights-Fees, and their Tenants were called, Barones Comitis, or the like; for we find, as in the King's Writ, ſo in Theirs, Baronibus ſuis al Francois & Anglois, to their Barons, as well French as Engliſh; the Royal Gifts, for the moſt part, extending to whole Counties or Hundreds; an Earl being Lord of the One, and a Baron of the Inferiour Donations to Lords of Townſhips or Mannours.
And as the Land, ſo was alſo the Courſe of Judicature divided, even from the Meaneſt to the Higheſt Portion; each Several had his Court of Law, preſerving ſtill the Cuſtom of our Anceſtors the Saxons, who jura per Pagos reddebant, diſtributed Juſtice throughout each Village: And theſe were termed Court Barons, or the Freeholders Court, (twelve uſually in number) who with the Thame, or Chief Lord, were Judges.
The Hundred-Court was next, where the Hundredus, or Aldermanus (Lord of the Hundred) with the chief Lord of each Townſhip within their Limits, judged. God's People obſerved This Form; in the Publick Centureonis & Decam Judicabant Plebem omni tempore. Hundreds and Decennaties adminiſtring Juſtice to the People at all times.
The County-Court, or Generale Placitum, was the next; This was to ſupply the Defect, or remedy the Corruption of the Inferiour: For Ʋbi Curioe Dominorum probantur defeciſſe, pertinet ad Vice Comitem Provinciarum; where the Hundred-Court was found Defective, matters were referr'd to the Lord of the County, The Judges here were Comites & Barones Comitatus, qui Liberas, in hoc, Terras habeant; Earls and Barons of the County, that were Free-holders in the ſame.
The laſt and Supreme Court, and proper to our Queſtion; was Generale Placitum apud London, the General Council at London; Ʋniverſalis Synodus, the Ʋniverſal Synod, in Charters of the Conquerour, Capitalis Curiae, the Capital Court; by Glanvil, Magnum & Commune Concilium coram Rege, & Magnatibus ſuis; the Great and Common Council before the King and his Nobles.
In the Rolls of Henry the Third, It is not Stative, but ſummon'd by Proclamation. Edicitur Generale Placitum apud London (ſays the Book of Abingdon) whither Duces, Principes, Satrapae, Rectores, & Cauſidici ex omni parte conftuxerunt ad iſtam Curiam, ſaith Glanvil, the General Aſſembly was called at London; whether Dukes, Princes, Peers, Rectors, and Lawyers reſorted from all Quarters: And Cauſes were referr'd propter aliquam dubitationem quoe emergit in Comitatu cum Comitatus neſcit dijudicare; upon any Queſtion or Difficulty which the County Court was not able to ſolve. Thus did Ethelweld, Biſhop of Wincheſter, transfer his Suit againſt Le oſtine from the County ad Generale Placitum, or the General Aſſembly: In the time of King Etheldred, Queen Edgine againſt Goda, from the County appealed to King Etheldred at London, Congregatis Principibus & Sapientibus Angliae; where the Princes and Wiſe Men of the Land were met together. A Suit between the Biſhops of Wincheſter and Durham, in the time of S. Edward, Coram Epiſcopis & Princibus Regni in praeſentia Regis ventilata & finita; was handled and determined by the Biſhops and Princes of the Realm in the preſence of the King. In the 10th year of the Conquerour, Epiſcopi, Comites & Barones Regni poteſtate adverſis Provinciis, ad Ʋniverſalem Synodum, pro cauſis audiendis & tractandis, convocati; the Biſhop, Earls and Barons of the Realm, &c. being aſſembled at the Univerſal Council to hear and determine Controverſies, (ſays the Book of Weſtminſter.) And This continued all along in the ſucceeding Kings Reign, until toward the end of Henry the Third.
AS this Great Court or Council, (conſiſting of the King and Barons) rul'd the important Affairs of State, and controlled all Inferiour Courts; ſo were there certain Officers, whoſe tranſcendant Power ſeem'd to be ſet for the circumſcribing the Execution of the Pinces will; as the Steward, Conſtable, and Marſhal, fix'd upon Families in Fee, for many Ages. They (as Tribunes of the People, or Ephori among the Lacedemonians) growing by unmanly Courage terrible to Monarchy, fell at the feet and mercy of the King, when the daring Earl of Leiceſter was ſlain at Ev…ſham.
This Chance, and the dear Experience H. the Third himſelf had made at the Parliament at Oxford, in the fortieth year of his Reign; together with the Memory of the many ſtraits his Father was driven unto, eſpecially at Rumny-Mead near Stanes; brought this King to begin what his Succeſſors fortunately finiſhed; in leſſening the Strength and Power of his Great Lords. And this was effected by ſearching into the Regality they had uſurped over their peculiar Soveraigns, whereby they were found to be (as the Book of St. Albans termeth them) quot Domini, tot Tyranni, how many Lords, ſo many Tyrants; and by weakening that Influence and Sway which they carried in the Parliaments, by commanding the Service of many Knights, Citizens, and Burgeſſes, to the Great Council.
Now began the frequent ſending of Writs to the Commons; Their aſſent not only uſed in Money, Charge, and making Laws, (for, before, all Ordinances paſs'd by the King and Peers) by their Conſent alſo in Judgments of all Qualities whither Civil or Criminal. In proof whereof I will produce ſome ſew ſucceeding Preſidents out of Record.
When Adamor (that proud Prelate of Wincheſter, Lib. S. Alban. f l. 20. 7. An. 44. H. 3.the Kings Half Brother) had aggrieved the State by his formidable Inſolence; he was baniſhed by the joynt ſentence of the King, the Lords, and Commons. And this appeareth expreſly, by the Letter ſent to Pope Alexander the Fourth. who expoſtulated a Revocation of him from Exile becauſe he was a Church-man, and ſo not Subject to any Cenſure: In This the anſwer is Si Dominus Rex aut Majores Regni hoc vellent (meaning his Revocation) Communitas tamen, Ipſius Ingreſſum in Angliam jam Nullatenus ſuſtineret; though the King and Lords ſhould conſent to his Revocation, yet would the Commons never allow of it. The Peers Subſcribe this Anſwer with their Names, and Petrus de Mountford vice Totius Communitatis, as Speaker, or Proctor of the Commons.
For by that Stile Sir John Tiptoft (Prolocutor) affirmeth under his Arms the Deed of Entail of the Crowns by King Hen. the fourth,Charta Orig. ſub Sigil. An. 8. H. 4. in the eighth year of his Reign, for all the Commons.
The Baniſhment of the two Spencers in the fifteenth of Edw. 2d. Prelates, Comites, & Barones, & les autres Peeres de la Terre, & Communes de Royalme, the Prelates, Earles, and Barons, and the reſt of the Peers of the Realm, and Commons of the Land, do give Conſent and Sentence to the Revocation and Reverſement of the Former Sentence; the Lords and Commons accord; and ſo it is expreſs'd in the Roll.
In the firſt of Edw. the 3d. when Elizabeth the Widdow of Sir John de Burgo, complained in Parliament, Rot. parl. 15. Ed. 3, vel. 2,that Hugh Spencer the Younger, Robert Boldock, and William Cliffe, his Inſtruments had by Dureſſe forc'd her to make a Writing to the King, whereby ſhe was deſpoiled of all her Inheritance; Sentence is given for her in theſe words; Pur ceo que avis eſt al Rveſques, Counts, & Barons, & autres Grandes, & a tout Cominalte de la Terre, que le diſcript eſt fait contre Ley & tout manere de Raiſon, ſi faiſt le dit Eſcript per agard del Parliament dampue alloquens al livre a la dit Elixabeth, Foraſmuch as it appeareth unto the Biſhops, Earls, and Barons, and all the Comonalty of the Land, that the ſaid Writing was made againſt all Law and Reaſon, it is adjudged by Parleament, &c.
In An 4 Ed. 3 it appeareth by a Letter to the Pope that to the Sentence given againſt the Earl of Kent the Commons were Parties as will as the Lords and Peers for the King directed their Porcedings in theſe words Comitibus Eagnatibus Baronibus & aliis de Communitate dicti Regni ad parliementum illud congregatis injunximus ut ſuper his diſcernerent & judicarent quod Rationi & juſtitioe conveniret habere proe Oculis ſolum Deum qui eum concordi unanimi ſententia tanquam Reum criminis loe ſoe Majeſtatis mori adjudicarent ejus ſententia &c. Prela. Parliam. 1. Ed. 3. Rot. 11.We have commanded the Earls Peers Barons and others of the Commonalty of the ſaid Realm aſſembled in Parliament to determine in this matter according to Reaſon and Juſtice having only God before their Eyes; and by an unanimous conſent they have ſentenced him to death as guilty of High Treaſon
When in the 50th year of Ed. 3. the Lords had pronounc'd the Sentence againſt Richard Lions otherwiſe than the Commons agreed,Parl. An. 5. Edw. 3. they appealed to the King, and had Redreſs, and the Sentence entred to their Deſires.
When, in the firſt Year of Richard the Second, William Weſton, and John Jennings, were Arraigned in Parliament for ſurrendering certain Forts of the King's; the Commons were Parties to the Sentence againſt them given,Parl. An. 1. Rich. 2.11.3.8. & 3.5. as appeareth by a Memorandum annexed to that Record, In the firſt of Hen. the Fourth, although the Commons referre, by Proteſtation, the pronouncing of the Sentence of Depoſition againſt King Richard the Second unto the Lords; yet are they equally Interreſſed in it; as appeareth by the Record: For there are made Proctors, or Commiſſioners, for the whole Parliament, one Biſhop, one Abbot, one Earl, one Baron, and two Knights !Gray and Erpinghan) for the Commons. And to infer that becauſe the Lords pronounc'd the Sentence, the point of Judgment ſhould be only Theirs, were as abſur'd, as to conclude that no Authority was veſted in any other Commiſſioner of Oyer and Terminer, than in the Perſon of that Man only that ſpeaketh the Sentence.
In the 2d. of Hen. 5. The Petition of the Commons importeth no leſs than a Right they had to Act and Aſſent to all things in Parliament; and ſo it is anſwer'd by the King. And had not the adjourned-Roll of the Higher-Houſe been left to the ſole Entry of the Clerk of the Ʋpper-Houſe, (who, either out of neglect to obſerve due Form, or on ſet purpoſe to obſcure the Commons Right, and to flatter the Power of thoſe who he immediately ſerved, omitted them,) there would have been frequent Examples of all Times to clear this doubt, and to preſerve a juſt Intereſt to the Common-Wealth. And how conveniently it ſuits with Monarchy to maintain This Form, leſt others of that well-fram'd Body knit under one Head, ſhould ſwell too great and Monſtrous, may be ſeen with half an Eye; it being (in my Opinion) at leaſt equally Liable to ſuffer a freſh under an Ariſtocracy, as a Democracy,
SIR, I am Your moſt humble Servant. H. S.
FINIS.
End of the text · Henry Scobell, The Power of the Lords and Common in Parliament (1690)