The several OPINIONS Of sundry learned ANTIQUARIES: Viz. Mr. Justice Doddridge, Mr. Agar, Francis Tate, William Canden, and joseph Holland. Touching The Antiquity, Power, Order, State, Manner, Persons and Proceedings of The HIGH-COURT OF PARLIAMENT In England. London, printed for William leak, at the Crown in Fleet-street, betwixt the two Temple-Gates, 1658. The PREFACE. Courteous Reader, I Here present thee with a few Sheets of the Discourses of very grave, reverend and learned Men in their times, one of them being a most honoured relation of my own they fell into my hands very lately upon the death of a worthy Friend; and upon perusal I judged them fit for public view; they are indeed Magnum in parvo; short, but full of weighty matter, and treat of the Antiquity and just Power of our ancient and free Parliaments of England. Give me leave to discourse a little of the honour and privileges of this most high Court; a learned Lawyer of our own, saith of the Parliament, that it is a Court of very great honor and justice, whereof none ought to imagine any thing that is dishonourable; and that the makers of Laws, that is, Parliament-men, do always intend justice and verity: such was the high Opinion and esteem of this great and eminent Court in former times; and it hath been the Opinion of our Exact Collection, pag. 655, 723, 724. Ancestors, that to a Parliament rightly constituted, there ought to be a lawful Summons, a free Election, a true Return, liberty of Admission into the House, and a quiet Session there, with a just freedom of speech and debate without fear or disturbance; these they accounted as the Essentials of a Parliament: if there be an error in any of these, it soon declines, and loseth its true vigour and authority. As for privileges of Parliament, they esteemed them to be of that absolute necessity, that if they were denied or interrupted, it cannot act properly as a Parliament, no more then the Body without the Soul; privilege of Parliament being indeed the very forma quaedat esse, the Life and Soul of it. Sometimes this most honourable Court is called by Bracton, Co. lib. 8. f. 20. & lib. 9. in epist. f. 5. Communis reipublicae sponsio; as in the entrance of his Book, where he writeth in this manner: Lex vigorem habet quicquid de consilio & de consensu magnatum, & reipublicae communi sponsione, authoritate Regis sieve principis precedent just fuerit definitum & approbatum: sometimes he calleth it, Magna curia, as in the second Chapter of his first Book, where thus of new cases, whereof at this present there is no Law extant, he saith, Si autem talia nunquam evenerint & obscurum & deficile sit eorum judicium, tunc ponantur judicia in respectu usque ad magnam curiam, ut ibi per consilium curiae terminentur. In the Register, in the form of all such writs as are N. B. 55. d. 208. H. grounded upon Statutes, it is called, commune consilium regni, as in the writs of wast & cessavit. It is said to be likewise the most Court King hath. Henry huntingdon seemeth to call it, Magnum placitum; for thus he writeth: Fuit in nativitate sanctae Mariae magnum placitum apud Northampton, in quo congregatis omnibus principibus Angliae, deliberatum est quod filia sua rediretur viro suo comiti Andegaviae. In the Books of Law there is no 33 H. 6. 18. 7 H. 7. 16. a 19. H. 6. 63. Original mention made of the first Ordinance or Erection of the Parliament; but the Laws of this Land esteem it as a thing most ancient, and do refer the Original thereof to time before any memory or certainty known; and hence is it that they say in 35 H. 6. 26. a. that a custom may have his Original by act of Parliament: of which saying ensueth, That for as much as customs are to have their Commencements time out of mind, so likewise Parliaments in this Land have been before any memory thereof extant when they first began. The personal attendance of such as are Members of the Parliament, is so necessary, that they ought not for any business be absent; and no one may be well missed, because he is a necessary Member; and for that reason, if one die during the Parliament, another shall 26 H 8. 60. a. Pl. 19. Dyer. Trewinnards case. be chosen in his room, so that the whole number ought not to fail; whereof it ensueth, that the person of every such Member ought to be privileged of Arrest at the svit of any private person during the time that he is employed about the affairs of the Realm; and such privilege hath been always granted by the King to the Commons at the request of the Speaker, the first day of the Parliament. And as this privilege is 38 H. 8. 60. a. Pl. 19. Dyer. 2 E. 4. 8. a. that they shall not be arrested, so likewise shall they which are already arrested before the Parliament, have a writ of privilege to the Sheriff, to set them at liberty; yea, although they are imprisoned upon an Execution; and the said Execution shall be suspended during the continuance of the Parliament, and then after they shall be taken again and imprisoned as before: and if the said Sheriff do disobey such writ or messenger as a sergeant at arms sent for such prisoner, he is in danger of perjury, and also of imprisonment of his body, and ransom at the will of the King: and this was in ure in the Parliament holden 35 H. 8. against Rowland Hill and Stukely, Sheriffs of London, who were committed to the Tower for their contempt, for that they would not suffer to be at large George Ferrers, when the sergeant at arms came for him: which Ferrers was imprisoned upon an Execution. This privilege is notified diversely, sometime by their public Minister and sergeant at arms, sometimes by writ, where if the Parliament be clear that the privilege lieth, they sand their writ of privilege, for otherwise the writ shall be a Habeascorpus cum causa, which writ is often granted before the Justices be agreed whether the privilege do lie in the case or no; and if they find it is not grantable in the case, then they remand the matter with a Procedendo. In the Parliament holden the 28 Eliz. which began 27. one Mr. Martin a burgess of the house of Commons, was arrested in London twenty days before the said Session began: whereupon these questions were there debated: 1. Whether he should have the privilege. 2. If so, then whether he should be absolutely freed of the arrests, or after that Session ended, whether he should be under arrest gain. 3. Whether he that did arrest him were punishable or not. For the time, how long before the Parliament, and how long after, persons attendant should have their privileges, it was thought by the whole house that it should be referred to the discretion of the house: for to put certainty therein, would breed inconvenience; for said Egerton solicitor, If a burgess coming to the Parliament, or in the Parliament time be arrested, and by privilege be discharged; after the Session endeth, then he is again arrested, and presently cometh another Session, then must he be discharged again; and so continue perhaps eight or ten years, and the debtor cannot come by his debt: what course should be taken? for the debtors presence is still of Record in the said house: and in the former case the said Martin was discharged. In the Parliament, Anno 27. Eliz. one Kerle was brought into the house of Commons for serving a Sub-Poena out of the star-chamber upon a burgess; he was awarded to pay five Marks for his charges, and he absolutely dismissed. Sir Robert Brandling made an assault in the North upon one Witherington of the house of Commons, in the Country before his coming to the Parliament: Sir Robert was sent for up by the house, and committed to the Tower. One gardener a burgess of the Parliament committed to the Fleet by my Lord Keeper, was delivered, putting in bond that he should after the Parliament appear. A burgess of Parliament a little before the end of the Parliament 28 Eliz. fell sick, and six weeks after the Parliament ended, when he was recovered, and to go into his Country, he was arrested; and yet notwithstanding he had his privilege. Quaere. Thus not onely the Burgesses and Knights shall have privilege, but also their attendant Servants. One Mr. Hall a 28 Eliz. burgess had his man in Execution for debt, and was delivered. The said liberty for Servants is mentioned in the Statute of 8 H. 6. chap. 1. where it is ordained, 34 H. 6. 26 a. that such as shall be called to the Convocation by the Kings Writ, and their Servants and Familiars, shall for ever hereafter fully use and enjoy such liberty, or defence, in coming, tarrying, and going, as the great Men and Commonalty of the Realm of England, called or to be called to the Kings Parliament. One Richard Chedder, Esquire, which came to the Parliament with Sir Thomas Brook one of the Knights 8 H. 4. 13, 20. 9 H. 4. 1. Parliament 5 H. 4. of the Parliament for Somerset; and the said Thomas his menial Servant, was wounded and beaten by one John Savage; this being done in the Parliament time, he made a Fine and ransom to the Kings will. Touching the choice, place and votes of Members of Parliament, I shall give you a brief account out of our Books of Law. Place is given to Knights in Parliaments, because they do import the presence of all the Freeholders of the several Shires for which they are chosen; and hereof see the Book in 2 R. 3. 12. a. Ireland is not bound touching Land by the Statutes of England, Quia non hic habent milites in Parliamento. Farther by Martin the reason why ancient demesne is not bound and made privy to divers Statutes, is, because they are not contributory to the expenses of Knights and Burgesses, 7 H. 6. 35. Fitz. Jurisdict. 4. And further by Nele it is plainly expressed, that the cause why Acts of Parliament are 21 E. 4. 59. a. public, is, for that every Man hath his Attorney in Parliament; to wit, the Knights of the Shire for the Country, and the Burgesses for the Cities and boroughs. It seems that in anciem time, there was but one Knight for a Shire: for the Statute of Staple made 27 E. 3. Staple 9. hath these words; Whereas good deliberation had with the Prelates, Dukes, earls, Barons and great Men of the Counties, that is to say, of every County one for all the Counties, and of the Commons of Cities and boroughs. None shall be chosen Knights of the Parliament, unless they be resiant within the Shire where they shall be chosen the day of the date of the writ of the Summons of the Parliament; and that the Knights and Esquires, and others which shall 1 H. 5. cap. 1. be choosers of the Knights of the Shires, be also resiant within the same Shires, in manner and form as is aforesaid: and by the same Statute it is ordained and established, that the Citizens and Burgesses of the Cities and Borroughts be chosen men, Citizens and Burgesses resiant, abiding, and free in the same Cities and Boroughs, and none other in any wise. The manner of Election of the Knights of the Parliament, is declared by Authority of Parliament as followeth, that is to say, at the next County to be holden after the delivery of the writ of the Parliament, proclamation shall be made in the full County of the day and the place of the Parliament; and that all they that be then present, as well Suitors duly summoned for the same cause, as others, shall attend to the Election of their Knights for the Parliament; and then in the full County they shall proceed to the Election freely and indifferently, notwithstanding any Prayer or Commandment to the contrary: and after that they be chosen, the names of the Persons so chosen, be they present or absent, 7 H. 4. cap. 15. shall be written in an Indenture under the seals of all them that did choose them, and tacked to the said writ of the Parliament; which Indenture so sealed and tacked, shall be holden for the Sheriffs return of the said Writ, touching the Knights of the Shires, 7 H. 4. ● H. 4. cap. 15. cap. 15. And the Election shall be in every County of the Realm of England by people dwelling and resiant in the same Counties, whereof every one shall have free Land or Tenements to the value of forty shillings by the year at the least, above all charges; and that they that shall be so chosen, shall be abiding and resiant within the same Counties; and such as have the greatest number, of them that may expend forty shillings by the year and above, as aforesaid, shall be returned by the Sheriff of every County, Knights for the Parliament, by Indentures sealed betwixt the said Sheriffs, and the said choosers, so to be made; and 8 H. 6. cap. 7. every Sheriff of the Realm of England shall have power by the said authority to examine upon the Evangelist every such chooser how much he may expend by the year, &c. Provided always, that he that may not expend forty shillings by the year, as aforesaid, shall in no wise be chooser of the Knights for 8 H. 6. cap. 7. the Parliament, 8 H 6. cap, 7. Which Act of Parliament was afterwards expounded, that the Knights of all the Counties within the Realm of England, to be chosen to come to the Parliament hereafter to be holden, shall be chosen in every County by people dwelling and resian● in the same whereof every man shall have Freehold to the value of forty shillings by the year at the least, above all charges, within the same County where any such chooser will meddle with any such Election, 10. H. 6. cap. 2. Against the Parliament holden Anno 27. and 28 Eliz. a Writ issued to the Sheriff of Norfolk, for choosing of 27 and 28 Eliz. Knights and Burgesses; they elected one Mr. Tresham and Mr. Fermour for the Knights: after issued out another Writ of Election out of the Chancery, and they elected the said Mr. Tresham and Mr. Heyden: both writs were returned; and which of them should be Knights, was the Question: the matter was long debated, and at length resolved, that the first Writ should stand, and the last voided. Having shewed thus briefly of the Manner of Election, onely a Word more of the continuance of their Authority being thus chosen and returned, namely, that as long as the same Parliament continueth, they shall still remain Knights of the Parliament; but being once dissolved, their power is thoroughly determined: for in a new Parliament, the Knights of the former Parliament cannot sit as Knights therein, except they be again to that end new elected, 4 E. 4. 44. b. by Catesby. Wherefore it is by him said there, That if a Parliament be summoned, and the Members of both Houses appear, 4 E. 4. 44. ● and sit; during which their sitting, if the Parliament dissolve, by demise of the King, the new King shall make a new Election. The second day of the Parliament, Philip Courtney being returned for one of the Knights of Devon, came before the King in Parliament; and for that he was accused of sundry heinous matters, prayed to be discharged until he were purged: the which the King granted, and on monday after, at the request of the Commons, the King restored him to his place and good name, for that he had submitted himself to reasonable arbitrement, 16 R. 2. n. 6. I thought to have discoursed briefly touching the Fees of Knights and Burgesses of Parliament, and in what manner, and by what writ they are to be levied, and what Lands are chargeable or to be discharged thereof; but I omit this, in regard the levying of those wages hath been so long time out of use. Now I shall touch very lightly upon the manner of proceeding upon Bills in the House of Commons, and upon the manner of attainder in Parliament, and the manner of proceeding upon writs of error in Parliament. Causes in the House of Commons are proceeded upon in two sorts; the one, If any man whatsoever do feel or do know the Commonwealth to be grieved with any Enormity, and be desirous for the weal of his Country to have the same reformed, he may exhibit privately unto the Speaker a Bill made and framed in the manner of Law, with Preamble, purview and proviso, containing the said grief, and manner how he would have it redressed: which Bill the Speaker shall afterwards cause the Clerk of the Parliament openly to red in the same house, and after expound the same himself to the House, and then upon the matter to sall to disceptation and debating. The other way is by motion made of the grievance, whereupon the House may commit the matter to such persons as shall frame a Bill thereof; and so the matter likewise to come to debating: the reason of which speech there by motion, is grounded on the Writ of Summons of the Parliament, and because all men in the House have not the skill aptly to frame a Bill. But to propound any matter in the House by way of Question concerning their Opinions in any thing, it is not usual, but utterly to be rejected. And therefore in the Parliament, 31 Eliz. one Mr. Damport offered unto the House certain Questions to be considered of; which were then refused, and the House resolved upon the former orders. In the Parliament holden 27 Eliz. when as a Bill concerning fraudulent gifts was dashed and rejected because of imperfections therein, nevertheless upon a motion made by Mr. Morish of the middle Temple, the House considered of the matter anew, and committed it to have a new Bill drawn: which was done, and the same passed; and is the same Act now in print touching that matter. In Parliament, if the greater 15 E. 4. 2. a. part of Knights and Burgesses assent to the making of an Act of Parliament, and the lesser part will not agree to that Act; yet shall it be a good Act to dure in perpetuity: which greater number of voices in the Higher House may easily be known, in that they are severally demanded, and the Clerk of the House doth number them; but of the House of Commons, otherwise it is, for there the assent is tried Pl. come. Rice Thomas and Bulkly. 126. a. by the sounding of voices, all at one time; and therefore if the assent there be issuable, the party that so pleadeth it, shall say it was agreed by the greater number generally. But ere they do proceed to the Question, it is asked them, if they will so do: then is it said by the Speaker to this effect: Such as will affirm the Bill, say, I; and such as will not, say, No: the one or other being known by the greatness of the sound of the voice, the matter is held so determined: and this may be done upon the first reading of a Bill; for in the Parliament holden in 31 Eliz. there was an Act exhibited, that the issue in tail might be charged in debt as heir; and upon the first reading was debated on both sides, and at length rejected by like sound of voices. If the Bill be first exhibited in the House of Commons, and there twice red, 33 H. 6. 17. b. 18. a. 7 H. 7. 16, b. then is it engrossed, and so red again the third time: & if after upon disputation thereof they do proceed to the Question, and so agree by the greater number of voices to pass as an Act, then is it endorsed in this manner, ●oit bail as signors: which Bill if it also be agreed upon by the Lords, it is likewise endorsed, less signors on't assentus; and so waiteth it onely the assent of the Monarch to make it an Act of Parliament: but if the Lords will alter the same, that may be done in two sorts, either by such means as doth include and stand with the doings of the Commons, as if the Commons grant Poundage for four years, and the Lords do grant it but for two years, this Bill shall not be redelivered unto the Commons, for that it standeth with their grant; but if the agreement of the Lords do not stand with the agreement of the Commons, then it is sent again to the Commons to be reviewed, and again to be debated, 33 H. 6. 17. b. Concerning attainder by Attainder by Parliament. Parliament, the party which is to be attainted by Parliament ought first to be be indicted in some other Court, having Jurisdiction to receive the same; which inditement ought to be sent into the higher House of Parliament, by virtue of a Certiorari; upon which inditement the party shall be called to answer before the Lord Steward of England, and other the Barons: but because the Archbishops and Bishops, being the Lords Spiritual, cannot assent unto the death of any person, therefore they shall by their proxy, make their Procurator, and depart the House: the party indicted shall be put to pled to the inditement; whereunto if he pled Not guilty, he shall be thereof tried by his Peers: and first the most puisne Baron, shall be examined of his verdict by the Lord Steward, and so in order until all they, man by man, have delivered their Opinion of the matter, either in convicting the person standing accused before them, or by clearing and acquitting him of the crime; if by their verdicts he be thought guilty of the offence, thereof is made an Act, which when it hath the consent of the King, it is then esteemed a Judgement, and the Offender thereby is attainted. Herein is to be noted, that this verdict of the Lords is not upon their Oaths, but upon their Honour; for persons of so high degree should have so great care for the preservation of their Honour, as themselves or any other have for the fafe-Guard of their Souls: which is admitted in that, and in all other Attaynders per Pares, by the Peers, as well for that they are in that place not onely as Triers of the Fact, but also Judges appointed over the fault; and never was it used that Judges should verify their sentence upon attestation thereof upon their Oaths. Secondly, in this manner of trial they must think that tho bread which is broken unto others by them, may by the just Judgement of God in like measure be broken unto themselves, in that he whom they censure was in equal degree unto themselves. Thirdly, also for that where the Law requireth at the hands of other persons an Oath, it ordaineth that Barons should regard their Honors. Secondly, it is to be noted, that the party so arraigned in Parliament, ought to be called to answer for himself: for the Law of England is not so unreasonable to condemn any that will defend himself; and it hath heretofore been noted as an error in the judgement of the 21 E. 3. 46. b. Parliament, when they have given a judgement in the cause of any private person, he being not called thereunto; and that in a civil matter of much less moment then is the cause of life and death: wherefore if the party may be had, and do not willingly and wilfully absent himself, he is thereunto called to answer; and therefore the Parliament in 37 and 38 H. 8. was freed of fault herein upon the Attainder of the Duke of Norsolk, he then being in the Tower, for that it was signified by the Lord Burghley, Lord Treasurer, in the star-chamber, when as Philip the last earl of Arundel was called to answer in the star-chamber, to an undutiful Letter written by him to her Majesty, that the said Duke was sent unto, and would not come to the Parliament: and the said Lord Treasurer affirmed that he then being of the lower House, was sent thither with others: see for this, 1 Mar. Dyer, 93. p. 24. The Lord high Steward 1 H. 1. a. 13 H. 8. 12. ●. giveth the Judgement upon attainder of treason, as appeareth by the judgement given in Parliament, 21 R. 2. 11. 15, 16. The Bills of attainder in Parliament, are entitled, Placita Coronae coram Domino Rege, in Parliamento suo. Now touching the manner Srrours in Parliament reversed. how errors in the Kings Courts committed, are reversed in Parliament, I shall be very brief. First, the parties that are grieved through any erroneous 22 ●. 3. 3. ●. 42 Ass. p. 22. 2 H. 7. 19. judgement given against them, ought to make their petition unthe King or Monarch, that it would please him to permit that erroneous judgement as is given against them in such Courts, from whence they cannot further appeal, may be in Parliament, reviewed and reversed. This their Petition ought to contain the effect of their grief, and ought to be endorsed, Let right be done unto the parties; In this manner, Soit Droit fait as Parties. Hereupon the Lord Chancellor 1 H. 7. 19. n. of England shall make a Writ of error, directed unto the Judges of such Courts where the error was committed, and now to be reversed by the Parliament; by virtue of which writ, the Lord chief Justice of England shall in person bring before the Lords in the higher House, the said Petition, the said Writ of error, and the Rolls wherein is contained the H. 7. 19. 2 E. 3. 3. judgement and process wherein error is supposed, and shall there leave the same petition, writ, and the transcript of the said Record, but not the Record itself, with the Clerk of the Parliament, for that the Record itself shall be brought back again into the said Court, for these Reasons: First, because 8 H. 5. f. error 88. 23 Eliz. Dy. 37 5. these Rolls do concern other matter. Secondly, because if judgement should be there affirmed, then the inferior Court may have Record whereupon to award Execution. And lastly, for that it is a Rule, that when a Record is sent from an inferior Court to a higher Court, it is never remanded; so that if the former judgement should be affirmed in the Parliament, and the Parliament after dissolved, the party plaintiff should be without remedy; wherefore the record is brought back again, as aforesaid. And thus the said 1 H. 7. 20. Petition endorsed, the Writ of error and the Transcript remaining in the hands of the Clerk of the Parliament, the matter shall be signified unto the Lord Steward, by whom, together with the other Lords Spiritual and Temporal, and with the 22 E. 3. 3. a. Iudges, the same shall be determined; or otherwise the King may appoint out a Commission, and thereby assign certain earls and Barons, who together with the Iudges shall determine the same; but the Commons shall not intermeddle therewith: moreover, after that the Transcript is examined with the Record, and that the Record is sent back to the former Court, the party plaintiff ought to assign his Error in writing; and thereupon shall have a Scire facias against the defendant, ad audiendum errores; which writ shall be returned the next Parliament ensuing, for that the common day of a Scire facias is forty days; but because it is uncertain whether the Parliament shall be dissolved or no, before that time, therefore the said writ shall be returned the next Parliament; ●…. f. Tit. 88. but if the writ be sued forth at a Session, of Parliament, the same shall be returned the next Session after the said errors assigned; and the Scire facias pursued, the plaintiff shall not enter into Recognisance to satisfy the judgement, if it shall happen to be given 1 H. 7. 20. against him, or to render his body to prison, in such manner as is done in a writ of error in the upper Bench sued upon an erroneous judgement given in the Common place; but he shall still remain in prison: for if the party plaintiff should be at large upon such recognisance acknowledged in Parliament, then if the Parliament be dissolved, the party is at large, and the other without remedy. If the King upon such Petition do appoint Commissioners for the determining of the Errors, and upon the Scire facias 22 E. 3. the parties do appear, if the Parliament be dissolved before the cause determined, the Commissioners after the Parliament is ended cannot proceed to the determination of the matter, or do any thing therein: but they must expect a new Session of Parliament. If judgement be given in Parliament, and that also happen to be erroneous, there is no Court that can redress this Error, but the Parliament itself; for as much as it is the highest Court of the land: and there is no higher Court in which he may have remedy, 7 H. 6. 29 a. As touching the Courts, whose judgments are to be rereversed in Parliament: First, it is to be noted, That all erroneous judgments given in the Kings Bench touching matter and substance of Law or matter in fact, were by the course of the common Law to be reversed in Parliament, 7 H. 6. 28. because it was before the King himself; and therefore it was ordained by several Statutes made to avoid delay of suits, 36 E. 3. cap. 10. 50 E. 3. 1 R. 2. 2 R. 2. that once every year a Parliament should be holden. But now by a Statute made in the twenty seventh year of Queen Elizabeth, it is ordained in the eighth Chapter, that all erroneous judgments in matters in Law, shall be considered and reversed by the Iustices of the Common Place, and the Barons 27 Eliz cap. 8. of the Exchequer, or by six of them: but if the error in the Kings Bench be in matter of Process, or proceeding, the same 7 H. 6. 28. 2 R. 3. 22. 27 H. 8. 16. 3 Eliz. Dyer, r 9 b. p. 39. might always have been reversed in the said Court of the Kings Bench, although if judgement be there given upon a plea, which is before discontinued, the same cannot be reversed but by Parliament. In all cases in the Chancery, wherein the Lord Chancellor ●… l. 3. sitz brief. is to adjudge according to the common Law, as in the repeal of Patents, actions against privileged 393. 3. 25. Ass. p. persons, Audita Querela upon Statutes, &c. There Ass. p. if erroneous judgments be given, the same is to be reversed in H. 8. 16. the Kings Bench, 14 Eliz. Dyer, 315. P. 100. although some opinions in other Books have been to the contrary, 37 H. 6. 14. a. but in matter of conscience, their decrees are reversible by themselves. Thus have I briefly touched upon several things, which upon some other occasion I shall enlarge. Touching such matters as are proper for the Parliament, you shall see in an Excellent Book lately printed, being an exact Abridgement of the Records in the Tower of London, from the Reign of King Edward the second, unto King Richard the third, of all the Parliaments holden in each Kings Reign, and the several Acts in every Parliament; Collected by the learned pains of Sir Robert Cotton, and revised and published by the unwearied labours of William Prynne of Lincolns-Inne, Esquire: a Book worthy of the Study of all the learned Gentlemen of this Nation. I conclude with my humble prayer, that the alwise God would grant to this Nation, a settled government, and a quiet State, that our English Parliaments may recover and enjoy their ancient honour and lustre. John Doddridge. From my Chamber in the middle Temple, the third of Dec. 1657. The several Opinions of sundry Antiquaries, touching the Antiquity, Power, Order, State, Manner, Persons, and proceedings of the high Court of Parliament in England. THere is no king in the world, nor any subjects of any king, that have a greater and more binding, and yet a more free Council, then this in our Parliament in England: whose general Acts since all men must take knowledge of, it may be profitable to every man to understand the Dignity, Order, and Antiquity thereof. sovereignty, the highest degree of Honour, is imported in the very Summons: For the king himself ( jure Regio) as a Flower of the Crown, hath the absolute power of calling and dissolving it. Order itself stands represented, when the Court is sitting: such is the majesty of the Prince, the Gravity of the persons, & their State in proceeding. But this being often seen, and so best known; and the other unknown to many that sit, and often see the order of this Court: therefore we will treat principally of the Antiquity, Nature, Power and Jurisdiction of this high Court of Parliament. And first, of the Appellation, the word Parliament. Some derive it from Peers, à potiore parte, quasi parium Conventum, or as others say, quasi parium lament ': others more probably, from the French word parlour; or that of the Greek, 〈◇〉, to treat and confer freely. The French Histories say, that this Name, in this sense, began at the Assembly of the Peers of France, anno Dom. 1200. but it appeareth to be more ancient with us, then of that time: for Ingulphus, who died 1009. saith, In publico nostro Parliamento, &c. taking it there for a Meeting or Chapter of the Abbot. Ingelo King of Polonia, in the Polish State, calleth the Assembly general Parliamentum. This may raise a doubt of the former etymology of it from the French word parlour. But no doubt the word was brought into the Realm by the French Monks, and after applied by the Statists, in the time of H. 1. to the General Council of the Kingdom. But the like Assemblies as Parliaments are,( being much more ancient then the Parliament) underwent these names of old times. The Britains called them Kyfrithin, because Laws were therein made by the English Saxons in their English Graduisis, a Council sometimes ( Wittena Mota) a Meeting of wise men. Sometimes of the Greek word Synodos. The latin Authors of that Age call it Consilium Magnatum, Curiae altissima, Praesentia Regis, Prelatorum, Procerumque Collectorum; as appeareth by the Charter of Withlasias, anno 833. and of King Edgar, anno 966. And now to step a Nomine ad Rem; before the time of sovereignty, Natures law directed men to the love of Society, and care to preserve it; and gained free consent even of lawless men, to admit of certain Customs as Laws, from hence framing matter of Form for a Commonwealth. But new springing mischiefs standing remediless by the elder Customs, caused, for remedy thereof, the calling of yearly Councils, the original no doubt of our after-Parliaments. And it shall appear, that our kingdom, from as grounded Authority as any other Nation, can prove of old the practise of these great Assemblies, then called Counsels, now Parliaments. Those Sages, the druids, most proper to this Isle, had yearly Conventions of their noblest and best people, in a middle consecrated Plot of this kingdom; punishing with proscription from their Sacrifices, whoso obeied not those general designs. Before the Romans arrived in this iceland, Causibulan, who before, ( Communi Consilio) Chieftain of the Britaines forces, Summa enim imperii, Bellique Administrandi, Communi Consilio, permissa est Causibulano. The Ancient Laws of the Britaines, which( to the honor of our common Laws) have their use to this day, were composed in their common Counsels: the multitude at that time,( as possessed of nothing) had neither voice, nor place; Usury, Tribute, and greatness, having made them servile to their betters. And thus stood the State, till by conquest it was made a Province. So before our Britaines learned the Laws of their Victours, they held their common Counsels. Tacitus seemeth to ascribe much to the prosperous proceedings of the Romans against the Britaines, quod non in Communi Consuluerunt. After the entry of the Romans, who with their people brought their Laws, their Counsels were Comitia, as Parliaments compounded of the three degrees ( Senatores, Equestres, & Plebei,) and termed either Curiata, Centuriata, or Tributa: so called, for that the people were divided per Curias: in which Assembly, Populus Suffragia tenebat, distinguished by Seats, summoned by the Lictour, held in the City, had power to consult of Peace and War, and to dispose of lesser public Offices. Romulus was founder hereof, and called it Lex Curiata, and Centuriata; for the nobler people were divided per Centurias: for this the Counsel fore-sent by Edict, Quis Dies, Comitiis Centuriatis futurus est, summoned per Corniciem, Assembled in Campo Martio, because all in arms. In this were disposed the greater Magistracies and affairs: of that Hostilius was the institutor. Tully gloried, in that he was called lege Centuriata Tributa. For in this the people Assembled by their Tribunes; much ageeing with that of Curiata: And the leges peculiares were general, Jussu populi,( regnant Magistratu) but not in force as Laws, until their Promulgation: for which cause the Country-Tribunes repaired to certain fairs, where Proclamation was made of their new Laws; and holding it aequum ut quisquam non obligaretur ad id quod fine culpa, sua ignorat. But these freedoms of the people expired and vanished, as the Empire grew obsolete: And when the State declined, we( as other enfranchised Countries,) began to give Laws unto our selves. Therefore the Britains told Augustine, Se non posse absque svorum Consensu & licentia priscis abdicare moribus. And thus it stood in britain until the coming in of the Saxons. Now that substance, and form of Parliamentary Assemblies went all along the Saxon age, held during the Incursion of the Da●… es, and was ●… inned by the conqueror in part: and when the Assembly of the three Estates formed the Parliament( as now we keep it) it shall by clear proof and presidents appear. The story of the Saxons and their Laws do show, that they were of the same mind transplanted hither, as Tacitus saith the germans were: Nec Regibus insinita potestas; de Minoribus Rebus principes consultant, de majoribus omnes: Rex Edwinus, saith Beda, lib. 2. cap. 13. quod antequam fidem susciperit dixit, secum amicis, principibus, & Consiliariis suis collaturum, In a Charter of king Etheldred, it appeareth, quod ad synodale Hist Esiensis, Lib. 2. Consilium apud Cirenchester universi Optimates simul convenerunt, & Affricum Majestatem rerum, affectantem de hac patria profugum expulerunt. Bertulphius held a council at Knisbury( pro Regni Negotiis Congregat ') to the which the west-Saxon King and people sent their legate. Ingulphus hath many places of clear proof; but I will move but one: In festo nativitat is beatae Mariae, cum universi Magnates Regni, per Regium edictum summoniti tam Archiepiscopi, Episcopi, abbots, & Clerici, quam totius Regni Proceres, & Optimates London convenerunt, ad tractandum de negotiis publicis totius Regni consummatis omnibus, Rex Eldredus, coram Universis, Domino Turketillo, Abbati, Monachisque suis Accersit is, dedit Monasterium de Crowland, &c. Here you may see the sampler of our Parliament. But to come nearer: when King Jua established his laws, he saith, I Jua, King of the West-Saxons, have called all my Fatherhood, Aldermen, and my wisest Commons, with the godly men of my Kingdom, to consult of great and weighty Matters. Here is represented in King Jua, the Kings Royal person: The Fatherhood in those ancient dayes, were those whom we call Bishops, and therefore were termed Reverend Fathers: By Aldermen, the Nobility is meant: so honourable was the word Alderman of old times, that onely Noble Men were called Aldermen. By the Wisest Commons, is signified the Knights and Burgesses; and so is the Kings Writ at this day, De discretioribus, & majus sufficientibus. By godly Men is meant the Convocation-house; for that it onely eonsisteth of Religious men. To consult of great and weighty Matters, so is the Kings Writ at this day, Pro quibusdam arduis, & urgentibus negotiis, nos Statum & defensionem Regni nostri Angliae, & Eccle siae Anglicanae Concernentibus. The like was in King Alphreds dayes, where the King, sancta Episcopi, & sapientes laici Statuerunt leges: Calling the Statute-books libri synodales: All their laws going by way of Suffrage general, according to the Right of our Parliament. Wherefore King Offa having gathered Consilia sapientum, and viewing the best laws of Jua, allured, and Etheldred, would not publish them until such time as the Text saith, ostendenda haec omnibus sapientibus nostris, & dixerunt omnes placet Custodire ea. But howsoever the government was by sundry Kings, and they continually attent to war; The Saxon time held hardly one form of this great Assembly, or council; yet in Canutus his dayes, he having Conquered all, and reduced that heptarchy into a monarchy, so that he could say, Sub Uno Rege, & sub Una lege Universum Angliae Regnum regeretur; It is plain that he held a Parliament, though not then so styled, yet truly so to be accounted: and since that it hath all parts of our Parliament, we might rightly call it so. In the Preamble to his laws, thus he saith, Convocato Itaque Communi procerum comitatu, & Episcoporum, Abbatum, & ceterorum Nobilium, Nec non, & ceterae Nobilitatis sapientiaeque totius Angliae concilio satagebat communis decreta, ut in quantum humana ratio volvit stabiliret. After this Pious King, Edward the Confessor in a Charter made to Westminster Abbey, sealed, and signed the same at a Parliament; for thus he saith, Hanc Igitur Chartam Donationis, & libertat is in Dedicatione predictae Ecclesiae recitare jussi Coram Episcopis, Abbatibus, Comitibus, & omnibus Optimatibus Angliae omnique populo audiente, & vidente. But now to come to the Normans time after the Conquest; The two first Kings, the conqueror and his son, William Rufus, reigned with their swords in their hands, absolutely of themselves, not admitting the former general Assemblies of the States, but permitting onely Provincial-Synods of the Clergy, for compounding of the Ecclesiastical causes; where nevertheless they sate as Presidents: and the conqueror himself did not challenge to himself so absolute a conquest; but the Laws that he made have this Title: Hic Intimatur, quod Gulielmus Rex, cum principibus suis Constitutum: And in giving Laws to this Nation, fecit summoniri per universos Consultatus Angliae Anglos nobiles, & sapientes sua lege eruditios, ut eorum & jura, & Consuetudines ab ipsis Archiepiscop is & Episcop is audiret: And often doth he, and his Son William, call together Archiepiscopos, Episcopos, abbots, Comites, Barones, Vicecomites, cum suis Militibus ad Consulendum: And likewise oftentimes afterwards until the time of Henry first, we find that there was Conventus Episcoporum, Abbatum, & Procerum Regni, Londini in Palatio Regis. Wherefore Polydore Virgil and Paladine are much deceived, if they thought that Henry the first held the first Parliament within this Realm. Neither do they seem to be of that Opinion, their words being, that Reg is ante tempor a Henrici primi, non Consue verunt populi conventum Consultandi causa, nisi pro raro facere. Therefore they might hold some, though not so often as did their successor: or agreeing with the Manuscript of Canterbury, that the first Parliament wherein the Commons were called aswell as the peers and Nobles, was 16 H. 1. For it is true, that after the Conquest, until this time, the Commons were not called; and so at this time, they will have it first called by the name of a Parliament. Indeed if the policy of the time be noted, that may yield some difference: The Conqueror, and his Son William, being strangers, had no way to make permanent their victory, but by adding other Laws, and plucking up the old Roots of Families they found, and to plant them in themselves, as in new grounds: So for that age it was their wisdom, to Rule, and not to advice with the people. But Henry the first, a new bud of the old stock, being a natural Englishman himself, born at Selby in Lincolnshire; in love of the English Nation, by whom he sought his strength: The Normans at that time standing at terms of revolt from him, in favour of his Brother Robert, Duke of Normandy, he well understanding the love of his people, called them to those great Counsels; and settling the Authority of his Court of Parliament, so established his Throne, that neither britain, Dane, nor Saxon, could ever after, till this day, disturb either him or his posterity from the possession of this Land: The making of his Laws were by Act of Parliament: The Marriage of his Daughter maud, and the entayling of the Crown to her, were done by Act of Parliament: The accord between Stephen and him, was made by Parliament; And consequently all the succeeding Kings since, have ever concluded grandia Regni, onely in the Parliament. Yet all the times since, have not kept the said Form of the Assembling of the three Estates: for sometimes the Principal of the Nobility were onely called; and they at the end of the Parliament, were to impart to the other Barons, and their Country, what was done in the Parliament: Afterwards King John ordained that all the Barons of England should come in their proper persons to the Parliament, being Summoned: 20 Knights Fees, after 20 l. a Fee, going to the value of an entire County; 15 Knights Fees, making an entire Baron, by which they sate: But King H. 3. after that he had smarted by the tumultuation of the Barons, their multitudes bringing consusion; ordained that those earls and Barons onely to whom he directed his perquisites should come unto the Parliament, and none else: And this which Hen. 3. began, his son Edw. 1. the Founder of our civil estate, calling the Barons, and appointing the Knights and Burgesses to be elected, and of the Barons selected the wisest and such as pleased him, and did omit them and their children which did not equal them and their parents in wisdom and virtue: so held it on until the time of Edward the Third; there being a Wirt then in use de Admittendo fide dignas ad Colloquium. Some also at that time being called, as William Earl of Nottingham, to attend upon the King with one hundred and twenty men at arms; laurence de Hastings, Earl of pembroke, with fifty men at arms; and William Clinton, Earl of huntingdon, with sixty men at arms: and so divers others. The calling was with distinction: The Bishops and Barons de Negotiis tractaturum, & Consilium impensuri; The Knights and Burgesses ad faciendum & Consentiendum. Those times had certain Ordinances besides statutes; for whatsoever the Lords and Commons agreed upon, was presently an Ordinance; and whatsoever the King gave his Royal Assent unto, it then became an statute: But if after the Parliament the King did Assent unto any Ordinance, it then became an statute: for the Kings answer is no more, but le Roy le veult, ou le Roy se avisera: And before the Printing of Acts was used, they were always engrossed, and sealed with the great Seal of England, and proclaimed in every Shire: which use was continued from the time of H. 3. until H. 7. his days; and the form was thus: The King, by the advice of his Lords, Spiritual and Temporal, at the special instance of the Commons Assembled in Parliament, hath made and established these Ordinances and Statutes, to the honor of God, the good of the King, and Realm. In which words you may observe a summary of this great Counsel: First, the Persons, the three Estates. Secondly, the Ends, for which the Parliament was called, ( viz.) for the honour of God, &c. Thirdly, the Means, by Counsel, and consent. Each duty of the three degrees, is insinuated in these three things ( viz.) Request of the Commons, advice of the Lords, and Establishment of the King. The first expressing the suitours: for the Royal Assent is never prayed by the Lords, but by the Speaker, the Mouth of the Commons. The second distinguishing the house; The King hearing the causes debated onely by the Lords. The third intimating that no Bill receiveth life, until the Royal Assent be given. So by looking back, it is easy to see the great Antiquity of this high Court, delivered as you see, from before the Romans; but never so dignified, as since Queen Elizabeths time. Now for the Nature of a Parliament, it is Consilium, and it is Curia; the power of it in matters hereditary, and personal; the proceedings of it in causes criminal and civil; the privileges of it sedentibus, & servientibus: The Offices, Officers, and Order, we leave to a further discourse: thus much onely touching the Antiquity of Parliaments in England. Temps Edw. le Confessor le summons doit easter 40. Jours devant le session. THe Summons of the Clergy, Arch-Bishops, Bishops, Abbots, and priors, that hold by a County, or a Barony, are summoned by Writ to come to the Parliament, and the King bears their expenses of their remaining, and abode; and all the other deans, Arch-Deacons, and Persons, are summoned to appear by two sufficient Proctors, which come with a duplicate of their Procurations, whereof one part remaineth with the Clerk of the Parliament, and the other with the Proctors. 2. The summons of the Laity, as Earls, Barons, and their Peers, which hold Lands and rents to the value of a County, or of a Barony ( viz.) 20. Knights Fees, every Fee being accounted at 20. l. per annum, which make 400. l. or 13. Knights Fees and a half, which makes 400. Marks per annum: and none of the Laity of lesser condition, are namely and particularly called by Writ, except their presence be necessary for some special and extraordionary cause. 3. Next the King sends his perquisites to the Cinque Ports, to choose Barons to answer, allege, and do for their Baronies, as if all were present: a Writ under the great Seal for the Warden, for their expenses 20. s. 4. Next the King sendeth his perquisites to the Sheriff of every Shire, to choose two Knights of every Shire: a Mark for their expenses. 5. Then the King sends his perquisites to the Cities of London and york, or other Cities that are Counties, to choose two grave Citizens: and they must also have a Mark for their expenses. 6. And then the Kings Writ goeth to the Bailiffs of Boroughs to choose two Burgesses. There must be two principal Clerks of the Parliament, and they must sit in the midst of the Justices, to enrole all the Pleas, and businesses of the Parliament; not being Clerks to the Justices; for there is no Justice in England hath any power or Jurisdiction in the Parliament, but that the King calleth them thither to assist the Lords, and to hear and detetmine petitions: for the two Clerks are immediately subject to the King, except the King assign some of the Justices to examine their Rolls. These Clerks enrole all the Judgments given in the Parliament; and before the end of the Parliament, they deliver them over to the Treasurer, keeping a Transcript or Counter-roll to themselves, their wages a Mark a day. Other Clerks were assigned by the King, to the Bishops, and others to the proctors of the Clergy; another to the Earls, and Barons; another to the Knights; another also to the Citizens, and Burgesses: these set down all doubts and answers, and are present in their Counsels; and being at leisure, they assist the two principal Clerks to enrole the Acts of Parliament. If a matter of difficulty, either concerning Peace or War, be moved in Parliament, the King will enjoin all the several degrees or tribes of the Parliament, the Bishops, the proctors, the Barons, &c. to go apart into several places; and the case is to be delivered to their several Clerks: whereupon they are to debate amongst themselves, and to advice; and if all, or the greatest part do not agree, then the Lord Steward, the Lord Constable, and the Lord Marshal, are to choose thirty five out of the number, two Bishops, three Proctors, two Earls, three Barons, five Knights, five Citizens, and five Burgesses: and these thirty five men may choose twelve, and these may descend to six, & these six to three, and these three to two, and these two to one; and so one person may determine a cause, except the King gainsay it; which he may do, during the Parliament: otherwise not. There be three Degrees of businesses in the Parliament. 1. Wars, or matters touching the Kings person, the Queen, and the Kings children. 2. The public businesses of the Commonwealth. 3. The private, and particular matters: yet these are to be handled, as the Bills come in by priority. The principal crier of the Parliament, the chancellor, Treasurer, and Barons of the Exchequer, shall record the defaults of all those that are summoned. A Sermon before the Parliament must be provided by the Arch-Bishop in whose diocese it is holden. Proclamation must be made in the Hall, or Monastery where it is holden, and in the City or Town, that all men by a certain day bring in their petitions, &c. The Chancellor, or the chief Justice of England, is to declare the cause of the Summons of the Parliament. The King in state ever to be present in the Parliament, if he be not sick; if he be sick, to sand for twelve persons of the house to see his person, and to satisfy the house of the cause of his absence. For the session the King sits alone. The Arch-Bishop of Canterbury on his right hand, york on his left hand; and so every man in his degree: and the Lord Steward is to see that every man sit amongst his Peers. The Ushers of the Parliament stand within the door of the house, and the crier stands without the door; and the Kings guard stands a good way without the door, to keep tumults, and crowds of people from about the door. All sit, except he that speaks, who must stand to speak, that all may hear. None is to go in or out of the house, but at one door onely. The King never requires aid, but for war; or to make his Son a Knight, or to mary his Daughter; and that in full Parliament. Two Knights of the Shire are greater then any one earl, or Baron; and two proctors then any one Arch-Bishop or Bishop: and the King can hold his Parliament without any Arch-Bishop, Bishop, earl, or Baron, with the Commons alone: for there was a Parliament before there was any Barons: but if the Commons do not appear, there can be no Parliament, though all the great peers of the Realm were present with the King: for the proctors, Knights. Citizens, and Burgesses of the Realm, do represent the whole Commons of the Realm; but the great Peers of the Realm, are present onely for themselves, and for no others. The Parliament ought not to be dissolved as long as any Bill remaines undiscussed; if it be, the King is perjured: and public Proclamation is to be made in the Parliament, and in the Palace, that if any have any petition, he ought to come in; and if no answer be made, it is to be intended, that all men are satisfied. Any man that will, may have a Transcript or copy of the Acts before they be printed, paying for the same 10. l. 5 s.( or 10 l. 08 s. 01 d.) And the Parliament may be holden in any place where it shall please the King ( viz.) at Oxford, at Kennelworth, at Marlborough, at Gloucester, at Action-Burnel, at Leicester, at the Blackfryers, &c. 14 H. 8. DODDRIDGE. Of the Antiquity of the Parliament of England. THe Ancient, and first Parliament that I have red of, is that in Polydore Virgil, in the reign of H. 1. in the 16 year, which was about the year of our Lord, 1116. And this was held at Sal is bury,( as he saith) where were assembled with the King, all the Prelates, Nobles, and Commons, to consult for the public weal; and( as he thinketh) before that day, the King never called the people to consult and make Laws: and he deriveth the name from the French word ( parlour.) There is an ancient Roll in some mens hands which describeth the whole State and order of the Parliament; and the Title of it is, De modo tenendi Parliamentum. And it is further described Parliamentum Reg is Anglioe, & Angles summoneri tenebatur temporibus Reg is Edwardi silii Ethelredi, qui modus Recitatus fuit, Coram Willielmo deuce Normaniae Conquestore Rege Angliae, & per ipsum approbatum. By this it should seem that Parliaments( as they are described in that Roll) were held in the time of Edward the holy, for he was the Son of Etheldred; for Edward the elder, was the Son of Alphred: and this Edward the holy lived about the year 1043. And by this it should also seem, that the Conqueror held a Parliament: In this it is first set down what Clergy-men were called, which were not onely Bishops, but Abbots, and Priors that held per Baroniam: by which I gather, that they came not to that place as they were spiritual men; but by reason of the temporal honours they enjoy in the Commonwealth; for they have a place in the convocation-house, in respect of their spiritual function, and in that also they are a part in the Court of Parliament. We red of a Parliament in 35 E. 1. in which were sixteen Abbots, and eight Priors; but how many of those were of the higher house I dare not define, or rather were of the house in general: for I know it is not clear, that there was not then a distinction of houses. The first Title is, De Clericis, the second De Laicis, the third de Militibus, the fourth De Civibus, the fifth De Burgensibus: all other circumstances of place, times, orders, and such like are recited, which I on it to remember particularly, because I know it is a thing well known to all; and that it differeth from the order of that Court now used. The Court of Parliament hath a double power; the one to consult by way of deliberation for the good Government of the Commonwealth, and so it is Consilium, non Curia; another power it hath as a Court, in Administration of Justice. The principal purpose of that Assembly seemeth to be for Consultation; for the Writs are ( ad Consultandum & deliberandum: but being Assembled, they may hold Plea of causes. But this difference I find, that in criminal causes, both the upper house and lower house intermeddleth therewith, as in Attainders onely; and the spiritual Lords do all go out of the house, and give their assents by proxy, 10 E. 4. 6. But in civil causes, as in perquisites of Error sued there out of the Kings Bench, the upper house onely meddleth, as is well described in the case 1 Hen. 7. 19, 20. in a Writ of Error sued by one Flowerdue, on a Replevin, wherein judgement was given against him in the Kings Bench. But we have an express Authority in the 4 H. 7. 18. That in a criminal cause, the Commons must assent; for there the King and Lords did attaint one, and nothing was said of the Commons; therefore by the Opinion of the Justices, the Act was held voided, and the party restored. The peers of Scotland were wont to come to our Parliament: for in 39 E. 3. 35. in a Writ of ravishment, de guard against Gilbert umfrevil, he demanded judgement of the Writ, because he was earl of Anguish; and not so name in the Writ: Anguish( saith the Plaintiff) is out of the Realm. I, but said the Defendant, I am summoned to Parliament by that name; and the Writ was abated: this proveth that the peers of Scotland came to our Parliament for Justice: but Littleton saith, 20 E. 4. 6. that we shall implead an earl, or Duke of France, by the name of Knight onely. I need not dilate of the nature of the Parliament, that it is a body politic, or of what parts and members it consisteth, for that is very well understood of all learned men; neither of the order of it at this day, for most know that of their own experience: the privileges of it are great, and may more safely be discussed what they are without the house, in regard of others, then what they are in the house for their liberties there. Of the Antiquity of Parliament. THat which we in English call Parliament, I suppose, and know, to have taken the name from the French, or Norman tongue, sounding upon the word parley, or parlour, to speak, or discourse: In latin I find that it was called before the Conquest by two names, the one called Synodus, taken from the Greek, which is used most for the Assembly of spiritual men, to treat of Divine causes; and so was practised when Augustine came to Canterbury, where the King of Kent,( called Ethelbert) gathered his Nobles, and people to understand the message, and preaching of Augustine; and again it is termed Consiliatio, as hereafter I shall set down, and hereafter in that sense, in Anno Dom. 833. Withlasias Dux Wiviorum, a great Lord or Peer amongst those of the Frennes, called Girrii, or Girrogii, in his Chapter for the foundation of the Abbey of Ramsey, in which he termeth Egberte King, and Ahelwolf his son, to be Dominos suos: he dateth his said Charter thus, Datum apud Londini Civitatem ubi omnes Congregati sumus pro Consilio Capiendo Contra Danicos piratos littora Angliae assidue insestantes: This mentioneth Ingulphus: so as it appeareth, when any imminent peril drew near for the hurt of the Commonwealth, that then there were called the Nobility and wisemen( called in the History of Eli,) deuces, Principes, Satrapae, Rhetores, & Causidici; also Convenerunt Agelinum, Aldermanum, & Episcopos, Oswynum, & omnes meliores Concionatores de come. &c. And the same Author sheweth, that Brithmothus, a most Noble Duke of Northumberland, was called Alderman, idest signior vel Dux qui synodo magna Constantia restituit Regem Edgarem, & alios Monachos dicens nequaquam se far posse, ut Monachi ejicerentur de Regno, qui omnem Religionem tenuerunt, & coluerunt in Regno. King Offa, in his Charter granted to the Abbey of Chertsey, hath these words: Hanc libertatem, & omnia praedicta, & praefatum Monasterium pertinentia in synodali conventu in loco qui nominatur Aeccleate, & testes consistentes concensi, & subscripsi, &c. in historia Chertsey penes me remanen. Canutus the Dane, beginning his Laws, sheweth plain, that he made the same by the Advice and council of a Parliament; and beginning thus, Haec est Consiliatio quam Canutus Rex meditatione vel decreto svorum sapientum consiliatus est cum su is sapientibus apud Wintoniam, &c. When I observe an old written copy, with a Comment thereupon, they are expounded thus, Consiliatio id est Institutio multorum facta Consilio, Idem Constitutionem pro Institutione, ponit, ut invit haec non instituta fuisse suo proprio Arbitrio, said multorum Consilio. And the said King Canutus, in the Preamble of his said Laws, sheweth, that he decreed his said Laws in this manner, Convocato itaque Comitum Procerumque Conventu, ut Episcoporum Abbatum, & caeterorum Nobilium, nec non & caeteris nobilitatis sapientiaeque totius Angliae Consilio satagebat communi decreto ut in quantum humana ratio valuit, ea quae justa fuerant stabiliret, &c. And in the said Preamble, is set down, that before his time, synods, or Assemblies for the Commonwealth, were very rare, saving Ecclesiasticae institutiones synodorumque conventus apud Anglos In●sitati adhuc fuerunt: And the reason I suppose, was, that before Canutus, the Realin was governed by sundry Kings: but he having conquered them all, and reduced them into one monarchy, allegeth in his Preamble, Sicut sub uno Rege ita & una lege Universum Angliae Regnum regeretur: so as I conclude in this point, that before Canutus, there were no Parliaments in England: the reason I have shewed before, which was the diversity and continual interwar between the Heptarchy, by him reduced to a Monarchy. Since his time, I find that Edward the Confessor, in his Charter made to Westminster-Abbey, did seal and sign the same at a Parliament: for thus he saith, Hanc Igitur donationis, & libertatis chartam in Die dedicationis praedictae Ecclesiae recitari jussi Coram Episcopis, Abbatibus, Comitibus, & omnibus optimatibus Angliae, & omni populo audiente, & vidente: where note these words, Omnibus optimatibus Angliae, and omni populi audiente, & vidente; which cannot be but in a general Assembly by Summons: and that is proved by the number and diversity of the witnesses, being Bishops, Abbots, Knig●…, Chancellors, Kings, Chaplains, Dukes, earls, Ministri, Milites, &c. And William the Conqueror, in his Charter of the Ratification of the liberties of that Church, after he hath subscribed the across with his name; and besides him a great number of others of the Clergy and Nobility; in stead of Cum multis aliis, hath these words, Multis praeterea illustrissimis virorum personis, & Regum principibus diversi ordinis omissis qui similiter huic Confirmationi piissimo affectu, testes & fautores fuerunt, Hii etiam illo tempore a Regia potestate e diversis provinciis & urbibus ad Universalem Synodum pro causis Cujuslibet. Sanctae Ecclesiae audiendis & tractandis ad praescriptum celiberrimum Caenobium quod Westmonasterium dicitur Convocati, &c. And in another Charter of his, to the said Abbey, are these words, Anno Incarnationis Dom. 1081. regni etiam praenonominati gloriosi Regis Willielmi IV. Convenientibus in unum cunctis primis primatibus in nativitate. D. N. I. C. I red not in Rusus time of any Parliament. But it appeareth in the read Book of the Exchequer, that H. 1. before the Constitution, or making of his Laws, setteth down, Quae Communi Consilio & assensu Baronum Regni Angliae, &c. And then proceedeth Omnes malas consuetudines quibus Regnum Angliae opprimebatur, ind ●ufero quas ex parte suppono, Testibus Archiepiscopis, Episcopis, Baronibus, Comitibus, Vicecomitibus, & optimatibus Regni Angliae apud Westimonaster quando Coronatus fui. The marriage of his daugter maud, and the entayling of the Crown to her, and her heirs, was done by Parliament: the Accord also between him and Stephen, was done by Parliament; and so consequently all matters of Importance were done and concluded in Parliament: and of such force is an Act of Parliament here in the governance of the State of the Realm, as it is deemed as an Oracle from Heaven, and resteth onely in the Kings and Queens power to qualify and mitigate the severity thereof. And thus much of the Antiquity. I leave to discourse of the manner how they that are to treat therein, are to be called; and of their privileges: and so I end. AGAR. Of the Antiquity of Parliaments. THe diligent observers of the Antiquities of this Realm, do very well know, that Acts of Parliament are of so high a nature, that they do not onely tie the Inheritance of every man; but what is there ordained, every subject of the Land is bound to take notice of, at his peril; and because no man that should desire to inform himself therein, should be ignorant what was done in Parliament, as now we use printing of the Acts; so before printing, all the Ordinances affirmed by royal assent were recorded, and then published under the great Seal of England, with a general preface, and proclaimed in every Shire: this you may see continued from the time of H. 3. till about H. 7. his days; and ordinarily the form was thus: The King such a day, and such a place, as at Westminster, the 20 day of April, in the second year of the reign of King H. 6. by the advice of his Lords, spiritual and temporal, and at the special instance, and request of the Commons Assembled in Parliament, hath made and established these Ordinances, Acts, and Statutes, to the honour of God, the good of the King and Realm, in form following; and then sets forth every Act in particular Chapters. Here you may see the persons assembled, the end of their meeting, and the means to make it effectual: the persons which meet at the Parliament are the three Estates of the Realm: first the King: Secondly the Nobles, spiritual and temporal: Thirdly the Commons of the Land. The end of the meeting is to do something to Gods glory, the Kings good, and the benefit of the whole Land: and the means to effect the same, is by consultation and consent. The particular duty of each of these three, seems to be insinuated in these words; first, the request of Commons; secondly, the advice of the Lords; thirdly, the establishment of the King: the Commons being most in number, and such as live in all the parts and places of the Land, are like to have most and best notice of such things as are most likely and meet to be provided for; and being weak in power, and most subject to feel such inconveniences, as greatness may lay upon them; and therefore are fittest, either first to lay open their griefs, and pray Reformation; or though they be not able at the first with judgement, to foresee ensuing dangers; yet the same being once proposed, and instantly apprehended, they may with instance importune allowance of such Laws, as may turn to their good: and our own experience teacheth us, that the Royal Assent is never prayed by the Lords, but by the Speaker, who is the mouth of the Commons. In the presence of a prince, a common person will scarce have the audacity to speak, but when necessity maketh him crave help; and therefore 'tis properly said, That the King advised with the Lords; because he heareth the causes debated with them only, the Commons being separated from consultation what were fit to propose in some other place. Whatsoever the Lords and the Commons agree upon, is an Ordinance presently, though it be never engrossed, and sealed with the great Seal, and proclaimed in the counties, as the common course was: but it took not effect as a Statute, till the King declared his Royal Assent; which he might very well do by Writ after the Parliament, aswell as during the Parliament, per. 29. E. 3. f. 4. b. 39E. 3f. 7. For the Kings answer is no more, but that he will be advised, whether he will assent or no; and if he assent not till after, it is some doubt whether it be an Act of Parliament from the first day of the Parliament, or but from the time of the Royal Assent given. The general Assent of the Realm to make Ordinances, and Laws, the ancient writers called Consilium, Commune Consilium, Magnum Consilium, Placitum general, Curia altissima, & Parliamentum general, seu altissimum. The Saxons called it Genote, Pirena, cor Pirena, Gemore, Ealpa, Zemots, Synodus. I find not the word Parliament before the beginning of E. 1. fully in use amongst us. But the Assembly of the three Estates to consult for the affairs of the Commonwealth, is as ancient as the Britains, and continued here in the time of the Saxons, Danes, and Normans. I ground my opinion for the Britains from no express authority, but by inference out of divers: 1 E. 1. Caes. come. lib. 5. cap. 5. saith, Summa Imperii, Bellique administrandi Communi Consilio, Comissa est Cassibulano. So that here we have the name: and if you think that the Commons were not called to this consultation, hear what Sothilius saith of the Britains: Apud hos, Populus Magna ex parte primatum tenet: exclude them of these general counsels, and you deprive them of this right. Vitus in histororum. Britanorum, lib. 8. fol. 11. saith that Arthurus victor cum Regio splendore, Londinum ingreditur, eaque urbe Convocatis Clericis, Principibusque suae quidem potestatis, omnibus, Consilium, quid optime factu opus sit, capit Beda lib. 2. cap. 2. saith the Britains told Augustine, se non posse alsque svorum Concensu, & licentia priscis abdicare Moribus: Beda lib. 2. cap. 13. Rex Edwinus antequam fidem Christianum susciperit, dixit se cum amicis, Principibus, & Consiliari is suis Collaturum, & habito cum sapientibus Consilio, &c. The story of the Saxons, and their Laws make evident proof, that they were still of the same mind transplanted hither, as Tacitus saith the Germans were; Nec Regibus infinita potestas. De Minoribus Rebus Principes Consultant, de Majoribus vero omnes. Historia Eliensis lib. 2. de Du●elme, mortuo Rege Edgaro, Lessius,( vel lepsius) a Deo ac sancto Petro abstulit cum Rapina Burch, & vendales, & Cateri●gas postea, antea Elicibatur, general placitum, apud Londinum, ad quod dum deuces, Principes, Satrapae, Rectores, & Causidici, ex omni parte confluxerunt, beatus Ethelwaldus Lessium in Jus protraxit, coram cunctis Injuriam patefecit, & been aperta discussa, ea omnes Ethelwaldo per Judicium rediderunt, Burch, & vendales, & Katheringas. Abendon Lanboke, fol. 91. in Charta Regis Etheldredi Affricum cognomento puer Pronbroche Willemetrantum, & siren, a quadam vidua Eadfield appellata, violenter abstraxit, & quia cum Ducatusico contra Regem Etheldredum reus extitit omnes possessiones ejus Regis dictioni subactae sunt, quod ad Synodale consilium ad Cirencester universi Optimates mei simul in unum convenerint, ad eundem Affricum, Majestatis reum, de hac patria profugum expulerunt. Ingulphus hath many places to the like purpose, but I will use but one: Infesto Nativitatis beatae Mariae cum universi Magnates Regni per Regium edictum summoniti tam Archiepiscopi, Episcopi, & abbots, quam caeteri totius Regni proceres, & optimates Londini Convenerunt, ad tractandum, de Negotiis publicis totius Regni, Consummatis, omnibus coraem universis, Domino Turketillo Abbati, Monacisque suis accersitis, Rex Eldredus dedit Monasterium de Croyland, &c. Polydore Virgil and Paladine are therefore much deceived, if they thought that H. 1. was the first that held any Parliament within this Realm: neither do they seem to be of that Opinion, their words are these, Regis ante tempora H. 1. non Consueverunt Populi Conventum, consultandi causa nisi pro raro facere: Yet I think their successors held Parliaments oftener then they did; yet nevertheless they held some, and William the Conqueror challenged not so absolute a Conquest of this Land; but the Laws he made, have this Title, Hic intimatur quid Gulielmus Rex cum principibus suis constituit, &c. And I think all Kings may yield to consult with their people for that reason which Alphred used in the preface to his Laws: Temeritatis videatur exsuis ipsius decretis quanquam plura literarum Monumenta consignari, cum in certum sit qualem habet apud posteros vel habitura sint fidem; quae nos Magni facimus. I have not seen Arthur Halls Book, whereby he disalloweth the Commons to have any voice in Parliament; and for which he is disabled to be of the same house for ever: but I think he mistaketh some writers meaning, which spake onely of Barons, or Magnates: but words are not much to be regarded, insomuch as whatsoever the Parliament alloweth, it bindeth as a Law, though it be set forth onely in the Kings name; as the Statute of Glouc ', and Magna Charta; or in the name of the Commons onely. In the Kings Oath, the word Populus extendeth to the greatest subjects, and so doth it also in the recognisance of the peace, or good behaviour, quod been se gerat erga Populum cunctum: If therefore he strike, or misdemean himself towards a Baron, the recognisance is forfeited. There is an express Authority, that proveth, that the word Magnates, comprehendeth the people. Houeden saith Anno 1170. Rex celebrabat Magnum Consilium Londini cum Principibus, & Magnatibus terrae, de Coronatione A. filii sui, & D. in sequent ' Clerico, & populis Consentientibus, fecit ipse silium suum coronari. FRANCIS TATE. Of the Antiquity of Parliaments. THat there were such like Assemblies as Parliaments now are, before the Romans arrival here, some gather by the words of Caesar, lib. 5. de Bello Gallico summa imperii, Bellique administrandi, communi Consilio permissa est Cassibulano. And for not such due holding of such common Counsels, Tacitus seemeth to refer the the happy proceedings of the Romans against the Britains, Quod in Communinon Consuluerunt. These two Parliament-like? Assemblies, the Britains do call Kifrithin, because Laws therein were enacted. The English Saxons, as soon as they had settled themselves, held also the like Assemblies, which they called in their ancient English tongue Gereduysis, or a Counsel; sometimes Wittena Mota, as a meeting of wise men; and sometimes by the Greek word Synoth: The latin Authors of that age, did call it Consilium, Magnatum Conventus, and Praesentia Regis, Praelatorum, Procerumque Collectorum, as appeareth by the Charter of King Edgar, to the Abbey of Crowland, in the year 961. At which time it seemeth by the subsigning, that Abbesses had their voices there, and consents aswell as the Prelates and Nobles of the Land. After the Norman Conquest, the two first Kings reigned with their swords in their hands, absolutely of themselves ( viz.) the Conqueror, and William Rufus his Son, not admitting of themselves any general Assemblies of the States of the Realm, but permitting onely provincial synods of the Clergy; for the composing of Ecclesiastical controversies, as some writ: wherein they themselves sate, nevertheless, as Presidents; yet in their meetings( as it is in Hovedon, where he setteth down the Lands of William the Conqueror, he did set them down: And by the Counsels of the Barous, fecit summoniri per universos Consultatus Angliae, Anglos, nobiles, & sapientes, & sua lege eruditos, ut eorum & jura & Consuetudines ab ipsis audiret: Electi igitur de singulis totius Patriae Comitatibus viri Duodecem Jurejurando Confirmaverunt, primo ut quoad possint, recto tramite, neque ad dextram, neque ad sinistram partem divertentes, legem s●arum Consuetudinem & sanctitatem patefecerint, nile praetermittentes; nile addentes, nile praevaricando Mutantes. And oftentimes he and his son William called together the Arch-Bishops, Bishops, Abbots, Archiepiscopos, Episcopos, abbots, Comites, Barones, Vicecomites, cum suis militibus: and in the time following, we find that there was conventum omnium Episcoporum, Abbatum, & procerum Regni Florentius Vigorniensis. Londini in palatio Regis. But an old Manuscript Book saith, That the first Parliament, wherein the Commons were called aswell as the Prelates and Nobles, Liber cantuarmu. was in the sixteenth year of H. 1. and then was first called by the name of Parliament, as some say from the peers, a potiore parte, quasi parium Conventus: some derive it from the peers ridiculously, quasi Parium lamentum: others more probably derive it from the French word parlour, as that of the Greek 〈◇〉, that is to treat and to confer together. Some of the French Historians, writ, that this name, in this sense, began at an Assembly of the peers of France, about the year of Christ, 1200. But I find the word to have been in use with us in this Realm long before: for Ingulphus, who died in the yeae 1109. used the word for the meeting or Chapter of the Abbot and Covent, writing thus: Concessimus etiam tunc seriantiam nostrae Ecclesiae, semiano de Leke, qui veniens coram conventu in publico Parliamento nostro similiter Juramentum praestitit, quod fidus & fidelis nob is existerit. Neither do I doubt but that the word was brought into this Realm by the French Monks, and first used by the Statists, in the time of H. 1. and since that time the authority of this Court hath stood settled; and the communality hath had their voice; which the said H. 1. granted unto them, being a natural Englishman himself; and in love of the English Nation, when at that time the Normans were on the terms of revolt from him, in favour of Robert his Brother, Duke of Normandy. Now for the form of Assembling of these three sorts of Estates, in this high Court, I find no certainty till the time of King John. It is apparent by a Petition, exhibited by the Lord Fitz-Hugh, in a Parliament holden at Leicester, 2 II. 1. that the principal Nobility were onely called; and they after the end of the Parliament to impart unto the Barons and their country what was done in the Parliament: Afterwards King John ordained, that all the Barons of England should come in their proper persons to the Parliament whensoever they were summoned. The form I will deliver out of the words of the petition. Ipse Dominus Rex general●… summonitiones, vicecomitibus cujuslibet Comitatus diligeret, ipsos injungendo, quod omnes Comites, & Barones, quorum nomina infra scripta fuerunt, & infra suas balivas residentes, ipsi summonirent, ad veniendum ad Parliamentum Regis: & hoc non omittatur quacunque ex causa, sub paena Magni Contemptus: at which time, as it is in the Book entitled, Modus tenendi Parliamentum, all Earls which have Lands, Tenements, and Revenues, to the value of an entire County, at twenty Knights Fees, after twenty pound a Fee, or the value of an entire Barony, which is fifteen Knights Fees and a half, came to the Parliament: but when so great a multitude coul not but breed tumultuous confusion, King Henry the third, after he had smarted by these confused multitudes of Barons, ordained that those Earls, and Barons, unto whom he directed his Writs, should onely come to the Parliament: so in the ancientest Summons that I have seen, which were in 49 H. 3. there were called besides the Earls onely 17 Barons. This which King H. 3. began, was fully perfected by King Edward the first his Son, who elected the wisest and such as pleased him; and likewise omitted them and their children in their summons, if they did not equal their Parents in wisdom, and other good parts and offices of valour and government: so we see in that time Hilton, Corbet, Point, Leyburne, Vavasour, &c. and such other like, were summoned once or twice in Parliaments, and their posterity wholly omitted afterwards: The Barons and Bishops were called, De Negotiis tractaturi, & Consilium impensuri: The Knights and Burgesses, ad faciendum, & consentiendum iis quae ibidem de communi Consilio dicti Regni nostri favente Deo contigerit ordinary supper Negotiis antedictis: And in the same words were the Clergy called, ad faciendum, & consentiendum: so as it seemeth they had as much to do in Parliament then, as Knights of Shires, and Burgesses. WILLIAM cambden. Of the Antiquity of Parliaments in England. I Find in many ancient Histories, that the Kings of this Land did use to call together the Nobility and Estates of the Realm to confer with them, especially about matters of War, when any necessary occasion did move them thereunto: But it is thought by Holinshead in his Chronicle, that the first use of the Parliament did begin in the 17 year of H. 1. which since that time hath remained in force, and is frequented unto our times; insomuch as when any thing is to be decreed appertaining to the State of the Commonwealth, it shall not be received as a Law until by the Authority of that Assembly, it shall be established. And because the house of Parliament should not be overcharged with multitudes, E. 1. did order that none of his Barons and Nobility should come unto this Assembly, but such as it should please the King to call by his Writ; and the rest to be chosen by voice of the Burgesses and Freeholders of the Shire where they did dwell, as Mr. cambden( Clarencieulx) in his Britannia hath very well remembered. It is recorded amongst the Summons of Parliament, 35 E. 3. that there is no Writ, de admittendo side dignos ad Colloquium: and amongst the Earls and Barons there is returned Mary countess de Norff. Alienor countess de Ormond, Phillippa countess de March, Agnes countess de pembroke, and Katherine countess of Athel. Upon the Parliament-Roll, Anno 14.( or 15.) E. 3. there are divers Writs directed to sundry Earls and Barons, de veniendo ad Regem: whereof the first is directed to William Earl of Southamton, to attend the King with 120 men at arms; William de Clinton, earl of huntingdon, with 60 men at arms; laurence de Hastinges, earl of pembroke, with 50 men at arms; and so likewise there were divers directed to others: and these several kinds of Summons, because I find them recorded amongst the Parliament-Rolls, I thought good to remember them to you. I will conclude upon the etymology of the word, which is Parliament, which is to speak, and deliver a mans mind freely, in that Assembly; whereof the boldest speech, that ever I did red of to be spoken in the Kings presence, was spoken by Roger Bigod, earl Marshal of England, unto King Edward the first, in the Parliament-house at Salisbury, where the King would have had him to go into gascoigne for him with an Army: but when the earl excused himself, saying, He would be be ready to go, if the King went himself; the King then in a chase, said, By God, sir earl, thou shalt either go, or hang: and I( said the earl) swear the same Oath, that, I will neither go, nor hang: and so departed from the King without taking leave. JOSEPH HOLLAND. The Antiqutty of Parliament. The two sinews of the Commonwealth are Punishment and Reward. AS touching the nature of the high Court of Parliament, it is nothing else but the Kings great Counsel, which he doth Assemble together upon occasion of interpreting or abrogating old Laws, and making of new, as ill manners shall deserve; or for the punishment of evil doers, or the reward of the virtuous; wherein these four things are to be considered, 1. Whereof this Court is composed. 2. What matters are proper for it. 3. To what end it is ordained. 1. As for the thing itself, it is composed of an Head and a Body. The Head is the King, the Body are the Members of the Parliament. This Body again is subdivided into two parts: the upper house is divided partly of the Nobility Temporal, who are hereditary Councellors to the high Court of Parliament, by the honour of their Creation, and Lands; and partly of the Bishops, spiritual men, who are likewise by virtue of their dignity, & ad vitam, of this Court. The other house is composed of Knights of the Shire, and Burgesses for the Towns: but because the number would be infinite for all Knights, Gentlemen, and Burgesses, to be present at every Parliament; therefore a certain number is selected out of that great Body, serving for that great Parliament, where their persons are the representations of that Body. 2. For the matters they ought to treat of, they ought therefore to be general, and rather of such matters, as cannot well be performed without the Assembly of that general Body; and no more of the generals neither then necessity shall require: for as in Corruptissima Republica plurimae sunt leges, so doth the life and strength of the Law consist not in heaping of infinite and confused numbers of Laws; but in the right inter pretation, and due execution of good, and wholesome Laws. 3. The end for which the Parliament is ordained, being onely for the advancement of Gods glory, and establishment of the sea-coal of the King, and his people; it is no place for particular men to utter their private conceits for satisfaction of their curiosities, or to make show of their Eloquence, by spending the time with long studied, and Eloquent Orations; for the reverence of God, their King and their Country being well settled in their hearts, will make them ashamed of such toys, and remember that they are there as sworn Counsellors to their King, to give their best advice for the furtherance of his service, and flourishing weal of this Sate. 4. And lastly, to consider the means how to bring all your labours to a good end, you must remember that you are Assembled by your lawful King, to give him your best advice in matters proposed by him unto you, being of so high a nature, as beforesaid: wherein you are gravely to deliberate; and upon your consciences, plainly to determine how far those things propounded do agree with the weal, both of your King, and the Country; whose Weals cannot be separated. FINIS. There is lately come forth, an exact abridgement of the Records in the Tower of London, from the reign of King Edward the Second, unto King Richard the Third, of all the Parliaments holden in each Kings reign, and the several Acts in every Parliament. Together with the names & titles of all the Dukes, Marquesses, earls, Viscounts, & Barons, summoned to every of the said Parliaments. Collected by Sr. Robert Cotton, Knight and Baronet. And are to be sold by William leak, at the Crown in Fleetstreet, between the two Temple-Gates.