A brief discourse, CONCERNING THE power OF THE peers and Commons of Parliament, in point of Judicature.  
Written BY A LEARned antiquery, at the request of a peer of this realm.  
Printed in the year, 1640.   

A brief discourse, Concerning the power of the peers and Commons of Parliament in point of Judicature.  
SIR, to give you as short an account of your desires as I can, I must crave leave to lay you as a ground, the frame or first model of this state.  
When after the period of the Saxon time, Harrolld had lifted 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, called in William then Duke of Normandy, a Prince more active than any in these Western parts, and renowned for many victories he had fortunately achieved against the French King, than the most potent Monarch in Europe.  
This Duke led along with him to this work of glory, many of the younger sons of the best families of Normandy, Picardy and Flanders, who as undertakers, accompanied the undertaking of this fortunate man.  
The Usurper slain, and the crown by war gained, to secure certain to his posterity, what he had so suddenly gotten, he shared out his purchase retaining in each County a portion to support the Dignity sovereign, which was styled Demenia Regni; now the ancient Demeanes, and assigning to others his adventurers such portions as suited to their quality and expense, retaining to himself dependency of their personal service, except such Lands as in free alms were the portion of the Church, these were styled Barones Regis, the King's immediate Freeholders, 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 Comites, or the like; for we find, as in the King's Writ in their Writs Baronibus suis & Francois & Anglois, the sovereign gifts, for the most part extending to whole Counties or Hundreds, an Earl being Lord of the one, and a Baron of the inferior donations to Lords of townships or manors.  
As thus the Land, so was all course of Judicature divided even from the meanest to the highest portion, each several had his Court of Law, preserving still the manor of our ancestors the Saxons, who jura per pages reddebant; and these are still termed Court-Barons, or the Freeholders Court, twelve usually in number, who with the Thame or chief Lord were Judges.  
The Hundred was next, where the Hundredus or Aldermanus Lord of the Hundred, with the chief Lord of each Townshippe within their limits judged; God's people observed this form in the public Centureonis & decam Judicabant plebem omni tempore.  
The County or Generale placitum was the next, this was so to supply the defect, or remedy the corruption of the inferior, ubi Curiae Dominorum probantur defecisse, pertinet ad vice comitem Provinciarum; the judges here were Comites, vice comites & Barones Comitatus qui liberas in hoterras habeant.  
The last & supreme, & proper to our question, was generale placitum aupud London universalis Synodus in Charters of the conqueror, Capitalis curia by Glanvile, Magnum & Commune consilium coram Rege et magnatibus suis.  
In the rolls of Henry the 3. It is not stative, but summoned by Proclamation, Edicitur generale placitum apud London, saith the book of Abingdon, whether Epium deuces principes, Satrapae Rectores, & Causidici ex omni parte confluxerunt ad istam curiam, saith Glanvile: Causes were referred, Propter aliquam dubitationem quae Emergit in comitatu, cum Comitatus nescit dijudicare. Thus did Ethelweld Bishop of Winchester transfer his suit against Leostine, from the County ad generale placitum, in the time of King Etheldred, Queen Edgine against Goda; from the County appealed to King Etheldred at London. Congregatis principibus & sapaientibus Angliae, a suit between the Bishops of Winchester and Durham in the time of Saint Edward. Coram Episcopis & principibus Regni in presentia Regis ventilate & finita. In the tenth year of the conqueror, Episcopi, Comites & Barones Regni potestate adversis provinciis ad universalem Synodum pro causis audiendis & tractandis Convocati, saith the Book of Westminster. And this continued all along in the succeeding Kings reign, until towards the end of Henry the third.  
AS this great Court or council consisting of the King and Barons, ruled the great affairs of State and controlled all inferior Courts, so were there certain Officers, whose transcendent power seemed to be set to bound in the execution of Prince's wills, as the Steward, Constable, and marshal fixed upon Families in fee for many ages: They as Tribunes of the people, or ex plori among the Athenians, grown by unmanly courage fearful to Monarchy, fell at the feet and mercy of the King, when the daring Earl of Leicester was slain at Evesham.  
This chance and the dear experience Hen. the 3. themselves had made at the Parliament at Oxford in the 40. year of his reign, and the memory of the many straits his Father was driven unto, especially at Rumny-mead near Stanes, brought this King wisely to begin what his successor fortunately finished, in lessoning the strength and power of his great Lords; and this was wrought by searching into the Regality they had usurped over their peculiar sovereigns, whereby they were (as the book of Saint Albans termeth them.) Quot Dominum tot Tiranni.) and by the weakening that hand of power which they carried in the Parliaments by commanding the service of many Knights, Citizens, and Burgesses to that 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 passed by the King and peers, but their consent in judgements of all natures whether civil or criminal: In proof whereof I will produce some few succeeding precedents out of Record.  
When Adamor that proud Prelate of Winchester 
Liber S. Alban▪ fo. 20. 7▪ An. 44. H. 3.  the King's half brother had grieved the State by his daring power, he was exiled by joint sentence of the King, the Lords & Commons, and this appeareth expressly by the Letter sent to Pope Alexander the fourth, expostulating a revocation of him from banishment, because he was a churchman, and so not subject to any censure, in this the answer is, Si Dominus Rex & Regni majores hoc vellent, meaning his revocation, Communitas tamen ipsius ingressum in Anglian iam nullatemus sustineret. The peers subsign 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 Tiptofe, Prolocutor, 
Charta orig. sub sigil▪ An. 1. H. 4.  affirmeth under his arms the Deed of entail of the crown by King Henry the 4. in the 8. year of his reign for all the Commons.  
The banishment of the two Spencers in the 15. of Edward the second, Prelati Comites & Barones et les autres Peeres de la terre & Communes de Roialme give consent and sentence to the revocation and reversement of the former sentence the Lords and Commons accord, and so it is expressed in the Roll.  
In the first of Edw. the 3. when Elizabeth 
Rot. Parl▪ 15 E. 3. vel. 2.  the widow of Sir John de Burgo complained in Parliament, that Hugh Spencer the younger, Robert Boldock and William cliff his instruments had by duresse forced 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 all Evesques Counts & Barones & autres grandes & a tout Cominalte de la terre, que le dit escript est fait contre ley, & tout manere de raison si fuist le dit escript per agard del Parliam. dampue elloques all liure a la dit Eliz.  
In An. 4. Edw. 3. it appeareth by a Letter 
Prelation●● Parliam. 1. Ed. 3. Rot 11.  to the Pope, that to the sentence given against the Earl of Kent, the Commons were parties as well as well as the Lords & peers, for the King directed their proceedings in these words, Comitibus, Magnatibus, Baronibus, & aliis de Communitate dicti Regni ad Parliamentum illud congregatis injunximus ut super his discernerent & judicarent quod rationi et justitiae, conveniret, habere prae oculis, solum Deum qui eum concordi unanimi sententia tanquam reum criminis laesoe majestatis morti adjudicarent ejus sententia, &c.  
When in the 50. year of Ed. 3. the Lords 
〈…〉  had pronounced the sentence against Richard Lions, otherwise then the Commons agreed they appealed to the King, and had redress, and the sentence entered 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 Kings, the Commons were parties to the sentence against them given, as appeareth by a Memorandum annexed to that Record. In the first of Hen. the 4. although the Commons refer by protestation, the pronouncing of the sentence of deposition against King Rich. the 2. unto the Lords, yet are they equally interessed in it, as it appeareth by the Record, for there are made Proctors or Commissioners for the whole Parliament, one B. one Abbot, one E. one Baron, & 2. Knights, Gray and Erpingham for the Commons, and to infer that because the Lords pronounced the sentence, the point of judgement should be only theirs, were as absurd as to conclude, that no authority was best in any other Commissioner of Oyer and Terminer then in the person of that man solely that speaketh the sentence.  
In 2. 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 answered by the King; and had not the adjournal Roll of the higher house been left to the sole entry of the clerk of the upper House, who, either out of the neglect to observe due form, or out of purpose to obscure the Commons right & to flatter the power of those he immediately served, 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 framed body knit under one head, should swell too great and monstrous. It may be easily thought for; Monarchy again may sooner groan under the weight of an aristocracy as it once did, then under democracy which it never yet either felt or feared.  
FINIS.