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both of the Clergy and Laity, summoned personally by the King's Writ, and of others required to attend by Writs directed to the Sheriffs of some Counties, to the Cinque Ports, and to certain Cities and Boroughs-from the Counties, Two most legal, "probi," and discreet Knights, Four from each of the Cinque Ports, and two Citizens from York and Lincoln, and Citizens and Burgesses of the most legal, "probi," and discreet, from the other Boroughs of England.

The King was then a Prisoner in the hands of his Barons, and this proceeding does not appear to have been authorized by any express Law, or by any Precedent. It was not itself precisely followed, as a Precedent, at any subsequent time.

If the Cities and Boroughs, which held immediately of the King, and the Cinque Ports, which also so held, were considered as Tenants in Capite, the only innovation in this proceeding from the Charter of John, which named only such Tenants, was the acceptance of Procurators, or Representatives, instead of Principals. At all events, during the whole reign of Henry III., except, perhaps, in his 34th, 48th, and 49th years, Tenancy in Chief was the ground on which a Summons to an Assembly for assessing Aids, was generally founded.

The first clear evidence of any subsequent Convention of a Legislative Assembly, resembling that of the 49th Henry III., is found in the Documents which prove the Summons of such an Assembly in the King's Parliament, in the 23rd Edward I. Between these periods much obscurity prevails.

The Records of Writs issued after the imperfect Records of 49 Henry III., before 23 Edward I., consist only of Writs for special purposes, issued to Sheriffs, for election of Knights, in the years 18 and 22, and special Writs to individuals probably Barons, A. R. 22. It is evident, however, by certain Clauses in the Prologues to the Statutes of Marlborough, 52 Henry III., and of Westminster, 1, 3 Edward I., which mention "the more discreet men, as well of the higher, as of the lower Estate," and the Nobles "and all the Commonalty of the Realm being summoned," that Writs issued upon these occasions, although none are now extant.

The Writs of 22 Edward I., for two Knights to be elected, "de consensu Comitatus," and the second Writ for the election of two other Knights, with full power to consent to the acts of the Lords, furnish an incontestable evidence, that the King might summon as many Knights as he thought necessary, and that the numbers so summoned had no influence as to the decision of the measures to be adopted according to the recommendation and advice of the Nobles, who alone constituted the deliberative Body. The Constitution of the Legislative Assemblies seems now to have returned to its old course.

In the 23d Edward I., writs were issued to the Prelates and Proceres as usual, but those to the Archbishops and Bishops, contain a new Clause, called, from its first word, the "Præmunientes" Clause, by which they are required to summon to Parliament, the Inferior Clergy, the Priors, Chapters, Archdeacons, of their respective Dioceses, with variations adapted to the state of the particular Churches. The Priors and Archdeacons were to appear in person, the Chapters by One, the other Clergy by Two fit Procurators. Writs are sent to all the Sheriffs (except of Durham and Chester) to cause to be elected of each County, Two Knights, and of each City and Borough, Two Citizens and Burgesses, with full powers to act and consent. The Cinque Ports were not summoned till the Reign of Edward III.

The Cities and Boroughs seem only to have been those of the King's Demesnes, inasmuch as the Grants were made only "de Dominicis Civitatibus et Burgis." The Knights did not represent any of the King's Demesnes.

The form," Præmunientes," was used in all subsequent Writs, whenever the King required the attendance of such a Convention of the Clergy for an Aid in respect to their Lay Fees; but it was not always inserted, and the Clergy assembled under this Clause, formed no necessary part of that Assembly in Parliament, by which Laws were to be made affecting the Estate of the King, of the Realm, and of the People.

This Representation of the Clergy bore, in other respects, a strong resemblance to the Representation of the Laity in the Legislative Assembly.

The power of Legislation was now generally exercised by the King, with the consent of the Lords Spiritual and Temporal, and the Commons assembled in Parliament; but Statutes were afterwards made (A. R. 27) without the attendance of Knights, Citizens, and Burgesses, when no charge was imposed on the People.

In the 34th Edward I., the Bishops, Abbots and Abbesses were summoned "ad tractandum." But the Writs to them, as well as to the Earls and Barons, admitted attendance by Attornies sufficiently authorized, instead of personal attendance. The Procurators of the Prelates were all inferior Clergy, except in one instance, when a Knight was returned as such.

The "Proceres," in this reign, began to be considered as Persons having personal Dignities, and the Commons were only required to give their Assent and not to advise. On the whole, however, the Constitution of the Legislative Assemblies approached the form which is now established, and in the 15th of Edward II., practice had settled this constitution.

The Declaratory Statute of York gave it the sanction of Legislative Enactment. It was declared, that the Legislative Authority resided only in the King, with the assent of the Prelates, Earls, Barons and Commons assembled in Parliament, and that every legislative Act not done by that Authority, should be void and of none effect. It was the first act of this nature since the Charter of John, which appears to have been abandoned as a legislative declaration, though probably truly describing the component parts of a Legislative Assembly to be convened for extraordinary aids. The present Act extended to all purposes for changing the Law of the Land, but in the 18th Edward II. the attendance of Knights, Citizens and Burgesses was still not deemed necessary for all purposes, when authority was not required for a new Law.

The Temporal Lords seem now to have been summoned at discretion, and the foundation of Right by Tenure, began to be overlooked.

With some few variations, the transactions of Edward III. and his Successors afford evidence of the Custom established by practice; and the Constituent parts of the Legislative Assemblies seem as fixed nearly as they now stand.

As Judges of the Parliament, the Peers were a distinct body separate and apart from the Commons, as they still are. Earls and Barons were equally Peers, without distinction of degrees, except as Earls and Barons. The "Autres Grantz," Members of the King's Council, not Earls or Barons, and the Judges were all present in Parliament.

The Commons were generally Petitioners, and the Lords of the King's Council assented. The final sanction was given by the Royal Assent.

In the 15th Edward III., the Privilege of the Peers was determined. A clear and decided personal distinction was declared between such as were summoned, or were entitled to be summoned by Special Writ, as Peers of the Land, and such as were not so summoned, or entitled to be so summoned. This personal Privilege, attaching at all times, is distinct from that Privilege of Parliament which belongs to the Members of both Houses of Parliament.

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All the Tenants in Chief had no longer a right to demand a Summons to Parliament, as such. Two Persons elected for each County by all the Freeholders, had been substituted for such Tenants in Chief as had not Special Summons. The "Gentz du Commun" seem to have been little regarded, except when an Aid was required.

The new Dignity of Duke was created by Edward III.

A Statute, in the 5th Richard II., gave a still more fixed character to the Legislative Body, and, with the 15th Edward II., preserved to the Archbishops, Bishops, Abbots, and Priors, accustomed to be summoned to Parliament, their Dignities; to the Temporal Peers, hereditary Titles; and confirmed to the Counties, Cities, and Boroughs, which then sent Members to Parliament, their Rights of Representation, on the evidence of usage.

The Title of Marquis was introduced by Richard II., by Patent, and he created a Baron, by Letters Patent; probably the first who had been so created.

All the Temporal Lords probably had Lands in Chief, but many derived their Rights and Titles of Dignity from Grants by Letters Patent, not as Tenants in Chief. The Annuities which were granted to those so created, did not lie in Tenure.

The Creation of the Dignity of Viscount took place under Henry VI. In the Reign of Henry VIII., Wales was incorporated and annexed to England. It was enacted, that Two Knights should be elected for the County of Monmouth, and One for each of the other Shires. One Burgess was to be chosen for every Borough being a Shire Town, except the County of Monmouth.

CHAPTER II.

It has thus appeared, that during the earlier Reigns, the Spiritual and Temporal Lords were the only Members of the Legislative and Judicial Assemblies of the Realm, by whatever name these Assemblies were distinguished, and that, though, under extraordinary circumstances, the opinion and advice of an inferior class of the Community were occasionally asked, the Commons had no real participation in the business of these Councils or Parliaments, before the 49th year of Henry III. The authority of ancient writers on this point is confirmed by the examination of all the Records which relate to those early periods, and which have been discovered and illustrated by the persevering industry of the Antiquaries of the present day.

From these Records the ancient Constitution of England may be still farther elucidated, and from a short summary of the practice, which, in accordance with the King's acknowledged Prerogative, with Law, or with Prescription, successively obtained in regard to the Persons composing the Supreme Legislature of the State, a correct inference may be drawn as to the processes by which their respective Rights and Privileges were established and limited.

From the Writs of Parliament issued at various Periods, we obtain the most precise Information on this subject, and to the learned and indefatigable Prynne, we are indebted for many deductions highly important towards a thorough knowledge of the Constitutional history of the Country.

As the Spiritual Lords and Barons are mentioned in all great Councils, Parliaments, Prologues and Acts of Parliament, before the Temporal Lords and Barons, so for the most part the Writs of Summons directed to them are first entered. This rule seems to have had few exceptions. The Princes of Wales have, now and then, Precedence, and, very rarely, other Temporal Peers.

The form of Writs to the Archbishops and Bishops vary. Those to Councils and Convocations differ from those to Parliaments. In the Writs to Councils of State, the Clause "Præmunientes" is wholly omitted. It appeared only in those to Parliaments, and was then inserted, or not, according to the pleasure of the King.

There was no general Summons to all Archbishops, Bishops, Abbots and Priors holding by Barony, to all Councils of State, but to such only as the King and Council thought meet; whereas they were usually all summoned to Parliaments. The numbers, however, of those so summoned varied, at times, in consequence of vacancy of Sees, from death, or Translation.

In Summons to Parliament and great Councils, the Bishops, Abbots, Priors and Clergy had all particular Writs, and, in many instances, Special (Second) Writs, directed to the Archbishops, commanded them also to summon the Bishops and others in their Diocese, for the purpose of preventing delay, or neglect of attendance. (i)

The number of Abbots and Priors who were summoned varied at different times, either in consequence of vacancies or death, or because it was ascertained that they held no Lands by Barony, or Knights' Service from the King, but only in Frankalmoigne; or because their attendance was dispensed with by Act of Special grace. (k)

The number of Archbishops, Bishops, Abbots, Priors and Ecclesiastical Persons was for the most part equal to, and very often far exceeded the number of the Temporal Lords and Barons. In 49 Henry III., 120 Prelates and only 23 Temporal Lords were summoned. In 23 Edward I., the Spiritual Lords were 77, the Temporal Lords 63; and the same year, 90 Spiritual and only 50 Temporal Peers were summoned. In 24 Edward I, the Spiritual were to the Temporal Lords as 91 to 43. In other Parliaments, the Temporal Lords exceeded the Spiritual in number, as in 27 Edward I., when the Temporal Lords were 90, the Spiritual, 58; but in 28 Edward III., again, the latter were 102, and the former 89.

In most Summonses during the Reigns of Henry IV., V. and VI., the Spiritual Lords were nearly double the number of the Temporal Lords, in consequence of the absence of the latter in actual service, in war, or from other causes. Proxies or Proctors of the Spiritual Lords were sometimes authorized by the writs themselves; at other times, they were strictly prohibited.

The King, Temporal Lords and Commons could not legally impose any Aids, Subsidies or Taxes on the Clergy, without their special grants in Convocation, according to the great Charters of Henry I., King John, Henry III., and a particular Act of 8 Henry IV.

The total number of Abbots ever summoned was 122, and of Priors and Masters of Orders 41, altogether 163; besides 5 Deans, the Official of the Court of Canterbury and the Dean of Arches. (1)

Some of these were only summoned once; others, variously, to 8 or 10 times, and never afterwards. At the latter end of Edward III. only 25 were constantly summoned.

It appears that our Kings by their Prerogative and Royal Authority alone, summoned what Abbots and others, they thought fit, but that the

(1) See Lists of Abbots and Priors summoned, and the form of Writs, Prynne, Brief Register, p. i., 109. (k) In Cases where Abbots, &c., were exempted by Special Acts, they were bound by their Act of Exemption to agree to the Proceedings of the Proxies sent by the Clergy to Councils and Parliaments. 1. 143.

(7) See Lists of the Abbots, Masters, and Priors of the different Religious Orders, to whom Writs of Summons were sent from the 49th Henry 3, to 23 Edward 4. Prynne, R. I p. 121.

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bare Writ of Summons to Abbots and others not holding by Barony, and their sitting in Councils and Parliaments did neither enoble them or their Successors or Heirs, as Peers of the Realm, but only made them Quasi Peers, or rather Assistants, and Joint Counsellors with the Lords in Parliament. (m)

That the Bishops, Abbots and Priors summoned constantly, and of Right, were summoned, not as Bishops, Abbots and Priors, but in respect of their Baronies, appears evident from numerous Authorities, particularly that of 51 Henry III., when the Clergy, having been put out of the King's Protection, were not re-admitted to sit in Parliament, till "Reddita sibi Baronia sua;" and from the Protestation in the Parliament, 11 Richard II. that, "de Jure et consuetudine Regni, &c." it belongs to all Ecclesiastical Persons, "qui per Baroniam de Domino Rege tenent, Parliamentis Regiis Quibuscunque, ut Pares Regni, Personaliter Interesse, &c." (n)

The Summons to the Temporal differed from that issued to the Spiritual Lords. The words "Homagio et Ligeantia quibus nobis tenemini," are peculiar to the former. The words "in Fide et Dilectione, &c." are not peculiar to the Clergy, but are often inserted in the Writs to the Temporal Peers.

The clause, "in Fide et Homagio," to the Temporal Lords, implies that they were all, or most of them, Barons by Tenure.

All Lords and Barons before and in 24 Edward III., were Barons only by Tenure, and not by Writ alone, as all were regularly summoned in "Fide et Homagio," and not in "Fide et Ligeantia," an alteration which was adopted 25 Edward III. As these three terms are occasionally used together, and on other accounts, they are considered, by Prynne, as synonymous. (o) There will scarcely be found, in the opinion of this eminent Author, an instance of any Duke, Earl, Viscount, Lord, or Baron, summoned under Henry III., Richard II, Henry IV., V., and VI., or Edward IV., who was not a Lord by Tenure, or Barony, as well as by Patent, Writ, or Creation.

There is great diversity in the Writs of Summons to Parliaments and general Parliamentary Councils, and to particular Councils, not properly Parliaments. All the Bishops, Abbots, Priors, Earls, Lords, Barons, together with the Judges and King's Council, the Citizens, Burgesses, and Barons of the Cinque Ports, were usually summoned to the one. To the other, some few Spiritual and Temporal Lords only, without any Judges, Assistants, Knights, Citizens, Burgesses, or Barons, or some few only, together with divers who were no Barons of Parliament.

Though the Peers, Temporal and Spiritual, were not allowed to sit when under age, an exception was made in favour of the King's Son. Edward of Carnarvon, the first Prince of Wales, was summoned when he was 19; Edward, eldest son of Edward II., as Earl of Chester, when scarcely 9; Edward, the Black Prince, before he was 20; Richard, his son, Prince of Wales, was called by Writ, before he was 9. Henry VI., in his Mother's lap, presided, in Parliament, before he was 12 months old.

The Terms "Baro, Barones," are frequently used in Histories, the Great Charters, and Statutes, in the reigns of John, Henry III., Edward I. and II., and are applied to all the Temporal Lords of Parliament, yet in the Close Rolls and Writs of Summons, none are so summoned but the Barons of

(m) 26 Edward 1, Prynne ii., 50-There is no mention made of any Bishops, Abbots, or Clergy summoned to the Convention at York, the Clergy being then in a Præmunire, and under the King's displeasure.

35 Edward 1. There are no Writs to the Spiritual Lords.

(n) See Prynne i., 151, &c.

(0) On Homage, &c., see Prynne B. R., i., 194, 200, and Palgrave's History of England, p. 230, 272. The "Homagia et Fidelitas," and "Homagia cum Fidelitatis Juramento," give some insight into the meaning of the frequent term "Fideles," perverted into a distinction of the Commons.

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