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 Conquerour 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 suit Constitutam And in giving Laws to this Nation fecit summoniri per universos Consultatus Angliae Anglos nobiles sapientes sua lege eruditos ut eorum jura Consuetudines ab ipsis Archiepiscopis Episcopis audiret And often doth he and his Son William call together Archiepiscopos Episcopos Abbates 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 VVherefore 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 Regis ante tempora 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 successors or agreeing with the Manuscript of Canterbury that the first Parliament wherein the Commons were called aswel as the Peeres 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 yeeld 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 Wisdome to Rule and not to advise with the people But Henry the first a new bud of the old stock being a natural Englishman himself born at Selly 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 savour of his Brother Robert Duke of Normandy he well understanding the love of his people called them to those great Counsels and setling the Authority of his Court of Parliament so established his Throne that neither Britaine Dane nor Saxon could ever after till this day disturbe 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 Mawde 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 confusion ordained that those Earles and Barons onely to whom he directed his Writs 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 vertue so held it on until the time of Edward the Third there being a Writ 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 armes Lawrence de Hastings Earl of Pembrook with fifty men at armes and William Clinton Earl of Huntington with sixty men at armes 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 Estatutes 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 Estatute But if after the Parliament the King did Assent unto any Ordinance it then became an Estatute 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 Advise 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 easie 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 priviledges 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 sommons doit estre 40. Jours devant le session THe Summons of the Clergy Arch-Bishops Bishops Abbots and Priours that hold
by a County or a Barony are summoned by Writ to come to the Parliament and the King bears their expences of their remaining and aboad and all the other Deanes 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 accompted at 20. l. per annum which make 400. l. or 23. 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 VVrits to the Cinque Ports to chuse Barons to answer alleadge and do for their Baronies as if all were present a VVrit under the great Seal for the VVarden for their expences 20. s. 4. Next the King sendeth his VVrits to the Sheriff of every Shire to chuse two Knights of every Shire a Mark for their expences 5. Then the King sends his VVrits to the Cities of London and Yorke or other Cities that are Counties to chuse two grave Citizens and they must also have a Mark for their expences 6. And then the Kings VVrit goeth to the Bailiffs of Boroughs to chuse 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 determine petitions for the two Clerks are immediately subject to the King except the King assigne 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 Proctours 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 wil enjoyn all the several degrees or tribes of the Parliament the Bishops the Proctours 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 advise and if all or the greatest part do not agree then the Lord Steward the Lord Constable and the Lord Marshal are to chuse 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 chuse 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 nor 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 publick 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 Cryer of the Parliament the Chancellour 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 diocess 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 send for twelve persons of the house to see his person and to satisfie the house of the cause of his absence For the session the King sits alone The Arch-Bishop of Canterbury on his right hand Yorke 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 Cryer 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 aide but for war or to make his Son a Knight or to marry his Daughter and that in full Parliament Two Knights of the Shire are greater then any one Earle or Baron and two Proctours then any one Arch-Bishop or Bishop and the King can hold his Parliament without any Arch-Bishop Bishop Earle 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 Peeres of the Realm were present with the King for the Proctours 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 publick 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 Copie 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 Acton-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 read 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 Salisbury as he saith where were assembled with the King all the
Parliament or in the Parliament time be arrested and by priviledge 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 Burgesse 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 Gardiner a Burgesse of the Parliament committed to the Fleet by my Lord Keeper was delivered putting in bond that he should after the Parliament apper A Bargesse of Parliament a little before the end of the Parliament fell sick 28 Eliz. 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 priviledge Quaere That not onely the Burgesses and Knights shall have priviledge but also their attendant Servants 28 Eliz. One Mr. Hall a Burgesse 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 of the Parliament for Somerset 8 H. 4.13.20 9 H. 4.1 Parliament 5 H. 4. 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 Ransome 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 contributary to the expences 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 publick is 21 E. 4.59 a. 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 Borroughs It seemes that in ancient 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 Earles 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 Borroughs 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 1 H. 5. cap. 1. and others which shall be chusers 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 chuse 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. cap. 15. 7 H. 4. 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 Chusers so to be made and every Sheriff of the Realm of England shall have power by the said authority to examine upon the Evangelist every such Chuser how much he may expend by the year 8 H. 6. cap. 7. c. Provided always that he that may not expend forty shillings by the year as aforesaid shall in no wise be Chuser of the Knights for the Parliament 8 H. 6. cap. 7. 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 resiant 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 Chuser 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
27 and 28 Eliz. for chusing of 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 void 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 throughly 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 b 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 haynous matters prayed to be discharged until he were purged the which the King granted and on Munday 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 levyed 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 Attaynder in Parliament and the manner of proceeding upon writs of errour in Parliament Causes in the House of Commons are proceeded upon in two sorts the one If any man whatsoever do feele or do know the Commonwealth to be grieved with any Enormity and be desirous for the Weale 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 read in the same house and after expound the same himself to the House and then upon the matter to fall 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 a new 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 15 E. 4.2 a. if the greater 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 voyces 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 Pl. Com. Rice Thomas and Bulkly 126. a. for there the assent is tryed by the sounding of voyces 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 tayle 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 voyces If the Bill be first exhibited in the House of Commons and there twice read 33 H. 6.17 b. 18. a. 7 H. 7.16 b. then is it engrossed and so read again the third time if after upon disputation thereof they do proceed to the Question and so agree by the greater number of voyces to pass as an Act then is it indorsed in this manner Soit bayle as Seigniors which Bill if it also be agreed upon by the Lords it is likewise indorsed Les Seigniors ont 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 meanes 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 againe to the Commons to be reviewed and again to be debated 33 H. 6.17 b. Attainder by Parliament Concerning Attaynder by 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 enditement ought to be sent into the higher House of Parliament by vertue of a Certiorari upon which inditement the party shall be called to answer before the Lord Stewards 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 Proxie make their Procurator and depart the House the party indited shall be put to plead to the inditement whereunto if he plead 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 safe-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 verifie their sentence upon attestation thereof upon their Oaths Secondly in this manner of trial they must think that the 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 Parliament 21 E. 3.46 b. when they have given a judgment 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 Norfolk 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 Earle 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 giveth the Judgement upon Attaynder of treason 1 H. 4.1 a. 13 H. 8.12 a. as appeareth by the Judgment given in Parliament 21 R. 2. n. 15 16. The Bills of Attaynder in Parliament are intituled Placita Coronae coram Domino Rege in Parliamento suo Errours in Parliament reversed Now touching the manner how errors in the Kings Courts committed are reversed in Parliament I shall be very brief First the parties that are grieved through any erronious judgment given against them 22 E. 3.3 a. 12 Ass p. 22. 2 H. 7.19 ought to make their petition un-the King or Monarch that it would please him to permit that erronious 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 of England shall make a Writ of error 1 H. 7.19 n. directed unto the Judges of such Courts where the error was committed and now to be reversed by the Parliament by vertue 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 judgment and proces wherein error is supposed H. 7.19 2 E. 3.3 and shall there leave the same petition writ and the transcript of the said Record but not the Record it self with the Clerk of the Parliament for that the Record it self shall be brought back again into the said Court for these Reasons 8 H. 5. f. Errour 88. 23 Eliz Dy. 375. First because these Rolls do concern other matter Secondly because if judgment should be there affirmed then the inferiour Court may have Record whereupon to a ward 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 1 H. 7.20 And thus the said Petition indorsed the Writ of Errour 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 22 E. 3.3 a. and with the Iudges the same shall be determined or otherwise the King may appoint out a Commission and thereby assigne certain Earles 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 assigne 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 8 H 5. f. tit Error 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 satisfie the judgment 1 H. 7.20 if it shall happen to be given 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 erronious judgment 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
Prelates Nobles and Commons to consult for the publick Weale 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 Parler 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 Regis Angliae Angles summoneri tenebatur temporibus Regis Edwardi filii Ethelredi qui modus Recitatus fuit Coram Willielmo Duce 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 read 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 ingeneral 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 omit to remember particularly because I know it is a thing well know 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 Common-wealth 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 intermedleth therewith as in Attainders onely and the spiritual Lords do all go out of the house and give their assents by Proxie 10 E. 4.6 But in civil causes as in VVrits of Error sued there out of the Kings Bench the upper house onely medleth as is well described in the case 1 Hen. 7.19 20. in a VVrit of Error sued by one Flowerdue on a Replevin wherein Judgment 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 void and the party restored The Peeres of Scotland were wont to come to our Parliament for in 39 E. 3.35 in a VVrit of ravishment de Garde against Gilbert Umfrevil he demanded Judgment of the VVrit because he was Earle of Anguish and not so named in the VVrit Anguish saith the Plaintiff is out of the Realm I but said the Defendant I am summoned to Parliament by that name and the VVrit was abated this proveth that the Peeres of Scotland came to our Parliament for Justice but Littleton saith 20 E. 4.6 that we shall implead an Earle 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 politique 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 priviledges 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 Parle or Parler to speak or discourse In Latine 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 sence 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 infestantes This mentioneth Ingulphus so as it appeareth when any imminent peril drew neer for the hurt of the Commonwealth that then there were called the Nobility and wisemen called in the History of Eli Duces Principes Satrapae Rhetores Causidici also Convenerunt Agelinum Aldermanum Episcopos Oswynum omnes meliores Concionatores de Com. c. And the same Author sheweth that Brithmothus a most Noble Duke of Northumberland was called Alderman idest senior vel Dux qui synodo magna Constantia restituit Regem Edgarem alios Monachos dicens nequaquam se ferre 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 Councel of a Parliament and beginning thus Haec est Consiliatio quam Canutus Rex meditatione vel decreto suarum sapientum consiliatus est cum suis sapientibus apud Wintoniam c. When I observe an old written Copie with a Comment thereupon they are expounded thus Consiliatio id est Institutio multorum facta Consilio