A BRIEFE DISCOVRSE, CONCERN­ING THE POVVER OF THE PEERES and Comons of Parlia­ment, in point of Judicature.

VVRITTEN BY A LEAR­ned Antiquerie, at the request of a Peere of this REALME.

Printed in the Yeare, 1640.

A BRIEFE DISCOVRSE, Concerning the power of the Peeres and Commons of Parliament in point of Judicature.

SIR, to give you as short an ac­count of your desires as I can, I must crave leave to lay you as a ground, the frame or first modell of this state.

When after the period of the Saxon time, Harold had lifted himselfe into the Royall Seat; the Great men, to whom but lately hee was no more then equall either in fortune or power, disdaining this Act, of arrogancy, called in William then Duke of Nor­mandy, a Prince more active then any in these Westerne parts, and renowned for many victo­ries he had fortunately atchieved against the French King, then the most potent Monarch in Europe.

[Page 6]This Duke led along with him to this worke of glory, many of the younger sons of the best families of Normandy, Picardy and Flanders, who as undertakers, accompanied the under­taking of this fortunate man.

The Usurper slaine, and the Crowne by warre gained, to secure certaine to his poste­rity, what he had so suddenly gotten, he shar­ed out his purchase retaining in each County a portion to support the Dignity Soveraigne, which was stiled Demenia Regni; now the an­cient Demeanes, and assigning to others his adventurers such portions as suited to their quality and expence, retaining to himselfe dependancy of their personall seruice, except such Lands as in free Almes were the portion of the Church, these were stiled Barones Regis, the Kings immediate Freeholders, for the word Baro imported then no more.

As the King to these, so these to their fol­lowers subdivided part of their shares into Knights fees, and their Tennants were called Barones Comites, or the like; for we finde, as in the Kings Writ in their Writs Baronibus suis & Francois & Anglois, the soveraigne gifts, for the most part extending to whole Coun­ties or Hundreds, an Earle being Lord of the one, and a Baron of the inferiour donations to Lords of Towne-ships or Mannors.

As thus the Land, so was all course of Judi­cature divided even from the meanest to the highest portion, each severall had his Court [Page 7] of Law, preserving still the Mannor of our Ancestours the Saxons, who jura per pages red­debant; and these are still tearmed Court-Barons, or the Freeholders Court, twelue u­sually in number, who with the Thame or chiefe Lord were Judges.

The Hundred was next, where the Hundre­dus or Aldermanus Lord of the Hundred, with the cheife Lord of each Townshippe within their lymits judged; Gods people observed this forme in the publike Centureonis & decam Judicabant plebem omni tempore.

The County or Generale placitum was the next, this was so to supply the defect, or re­medy the corruption of the inferior, Vbi Curiae Dominorum probantur defecisse, pertinet ad vice comitem Provinciarum; the Iudges here were Comites, vice comites & Barones Comitatus qui liberas in hoterras habeant.

The last & supreme, & proper to our questiō, was generale placitum aupud London universalis Synodus in Charters of the Conquerour, Capi­talis curia by Glanvile, Magnum & Commune consilium coram Rege et magnatibus suis.

In the Rolles of Henry the 3. It is not stative, but summoned by Proclamation, Edicitur generale placitum apud London, saith the Booke of Abingdon, whether Epium Duces principes, Satrapae Rectores, & Causidici ex omni parte confluxerunt ad istam curiam, saith Glanvile: Causes were referred, Propter aliquam dubita­tionem quae Emergit in comitatu, cum Comitatus [Page 4] nescit dijudicare. Thus did Ethelweld Bishop of Winchester transferre his suit against Leostine, from the County ad generale placitum, in the time of King Etheldred, Queene Edgine against Goda; from the County appealed to King Etheldred at London. Congregatis principibus & sapaientibus Angliae, a suit between the Bishops of Winchester and Durham in the time of Saint Edward. Coram Episcopis & principibus Regni in presentia Regis ventilate & finita. In the tenth yeere of the Conquerour, Episcopi, Co­mites & Barones Regni potestate adversis pro­vinciis ad universalem Synodum pro causis audiendis & tractandis Convocati, saith the Book of Westminster. And this continued all along in the succeeding Kings raigne, untill towards the end of Henry the third.

AS this great Court or Councell con­sisting of the King and Barons, ruled the great affaires of State and controlled all infe­riour Courts, so were there certaine Officers, whose transcendent power seemed to bee set to bound in the execution of Princes wills, as the Steward, Constable, and Marshall fixed upon Families in fee for many ages: They as Tribunes of the people, or ex plori among the Athenians, growne by unmanly courage feare­full to Monarchy, fell at the feete and mercy of the King, when the daring Earle of Leicester was slaine at Evesham.

This chance and the deare experience Hen. the 3. himselfe had made at the Parliament at Oxford in the 40. yeare of his raigne, and the memory of the many straights his Father was driven unto, especially at Rumny-mead neare Stanes, brought this King wisely to beginne what his successour fortunately finished, in les­soning the strength and power of his great Lords; and this was wrought by searching into the Regality they had usurped over their peculiar Soveraignes, wherby they were (as the Booke of Saint Albans termeth them.) Quot Dominum tot Tiranni.) [Page 6] and by the weakning that hand of power which they carried in the Parliaments by comman­ding the service of many Knights, Citizens, and Burgesses to that great Councell.

Now began the frequent sending of Writs to the Commons, their assent not onely used in money, charge, and making Lawes, for be­fore all ordinances passed by the King and Peeres, but their consent in judgements of all natures whether civill or criminall: In proofe whereof I will produce some few succeeding Presidents out of Record.

When Adamor that proud Prelate of Win­chester Liber S. Al­ban▪ fo. 20. [...] ▪ An. 44. H. 3. the Kings halfe brother had grieved the State by his daring power, he was exiled by joynt sentence of the King, the Lords & Com­mons, and this appeareth expressely by the Letter sent to Pope Alexander the fourth, ex­postulating a revocation of him from banish­ment, because he was a Church-man, and so not subject to any censure, in this the answer is, Si Dominus Rex & Regni majores hoc vellent, meaning his revocation, Communitas tamen ip­sius ingressū in Angliā iam nullatemus sustineret. The Peeres subsigne this Answer with their names and Petrus de Mountford vice totius Com­munitatis, as speaker or proctor of the cōmons.

For by that stile Sir John Tiptofe, Prolocu­tor, [...] orig. sub [...]igil▪ A [...] [...]H. [...] affirmeth under his Armes the Deed of Intaile of the Crowne by King Henry the 4. in the 8. year of his raigne for all the Commons.

[Page 7]The banishment of the two Spencers in the 15. of Edward the second, Prelati Comites & Barones et les autres Peeres de la terre & Com­munes de Roialme give consent and sentence to the revocation and reversement of the former sentence the Lords and Commons accord, and so it is expressed in the Roll.

In the first of Edw. the 3. when Elizabeth Rot. Parl▪ [...] E. 3. vel. [...]. the widdow of Sir John de Burgo complained in Parliament, that Hugh Spencer the yonger, Robert Boldock and William Cliffe his instru­ments had by duresse forced her to make a Writing to the King, whereby shee was de­spoiled of all her inheritance, sentence is given for her in these words, Pur ceo que avis est al Evesques Counts & Barones & autres grandes & a tout Cominalte de la terre, que le dit escript est fait contre ley, & tout manere de raison si fuist le dit escript per agard del Parliam. dampue elloques al livre a la dit Eliz.

In An. 4. Edw. 3. it appeareth by a Let­terPrelation [...] Parliam. 1. Ed. 3. Rot 11. to the Pope, that to the sentence given against the Earle of Kent, the Commons were parties aswell as well as the Lords & Peeres, for the King directed their proceedings in these words, Comitibus, Magnatibus, Baroni­bus, & aliis de Communitate dicti Regni ad Parliamentum illud congregatis injunximus ut super his discernerent & judicarent quod rationi et justitiae, conveniret, habere prae oculis, solum Deum qui eum con­cordi unanimi sententia tanquam reum criminis [Page 8] laesoe majestatis morti adjudicarent ejus sententia, &c.

When in the 50. yeere of Ed. 3. the Lords [...] had pronounced the sentence against Richard Lions, otherwise then the Commons agreed they appealed to the King, and had redresse, and the sentence entred to their desires.

When in the first yeere of Richard the se­cond, [...] William Weston and John Jennings were arraigned in Parliament for surrendring cer­taine Forts of the Kings, the Commons were parties to the sentence against them given, as appeareth by a Memorandum ānexed to that Record. In the first of Hen. the 4. although the Commons referre by protestation, the pro­nouncing of the sentence of deposition against King Rich. the 2. unto the Lords, yet are they equally interessed in it, as it appeareth by the Record, for there are made Proctors or Commissioners for the whole Parliament, one B. one Abbot, one E. one Baron, & 2. Knights, Gray and Erpingham for the Commons, and to inferre that because the Lords pronoun­ced the sentence, the point of judgement should be onely theirs, were as absurd as to conclude, that no authority was best in any other Commissioner of Oyer and Terminer then in the person of that man solely that speaketh the sentence.

In 2. Hen. 5. the Petition of the Commons [...] importeth no lesse then a right they had to act [Page 9] and assent to all things in Parliament, and so it is answered by the King; and had not the adjournall Roll of the higher house beene left to the sole entry of the Clarke of the upper House, who, either out of the neglect to ob­serve due forme, or out of purpose to obscure the Commons right & to flatter the power of those he immediately served, there would have bin frequent examples of al times to cleer this doubt, and to preserve a just interest to the Cō ­mon-wealth, and how conveniently it suites with Monarchy to maintaine this forme, lest others of that well framed body knit under one head, should swell too great and mon­strous. It may be easily thought for; Monar­chy againe may sooner groane under the weight of an Aristocracie as it once did, then under Democracie which it never yet either felt or fear'd.


This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal. The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission.