Greystok and Stafford, Edward I. and III., Richard II., Henry IV., V., and VI. The Title of "Miles," or "Chivaler," was given to no Temporal Lords or Barons before 49 Edward III., but was common under Richard II., Henry IV. and V. After the beginning of Henry VI., and under Edward IV., scarcely any Temporal Lords were summoned without it, being all generally Knighted for their greater Honour. The Title "Magister" is only given to one Temporal Lord, Thomas de la Ware, who is constantly so styled from 23 Richard II. to 5 Henry VI. He had probably been in Sacred Orders before the Temporal Dignity descended to him, and this Title is always prefixed before the names of all the King's Council who were Clergymen, as Assistants to the Lords' House. The Title "Armiger" is once given to John de Audley, 1 Edward IV.. who is otherwise always termed Chivaler, 49 Henry VI., 2, 6, Edward IV. This arose probably from an error, this inferior title being not suitable to the Lordship, or Peerage. The Title "Dominus" is not usually given to any Temporal Lords, except two, before Henry VI. (1) Joh John de Moubray is styled Dominus, Insulæ de Axholme, (16 Edward III.); none else having it, till after Richard II. (2) John Talbot is called Dominus de Furnivall, (11 Henry IV.) but none after are so styled, till 23 Henry VI. After 29 Henry VI., this Title is more common. It is the inseparable Prerogative and Supreme Royal Jurisdiction of the Kings of England, by Special Patents, Writs of Creation, Charters, and Solemn Investitures, to make and create Princes of Wales, Dukes, Marquisses, Earls, Viscounts, Lords, Barons, and Peers of the Realm, and to give them, and their Posterities, a Place, Seat, and Voice, in the Parliaments and Great Councils of England, the Supreme Judicature, and Highest Court of all others, wherein they sit as Judges. All other Judges in the Courts of Westminster, sit only as their Assistants, not as Associates or Fellow Judges with the Peers. It has been already stated, that one of the first Barons created by Patent, whose Patent is extant, was John de Beauchamp, Steward to the Household of Richard II.; and there is only one Precedent of a Baron created by Special Writ, Henry Bromfleet, Knight, who was created Baron de Vescy, 27 Henry VI. He is afterwards called Dominus, not Baro, a sufficient evidence that no general Writ of Summons created Barons, unless they held Lands by Barony. It has thus been proved, beyond the possibility of contradiction, that the ancient Temporal Earls, Lords, and Barons, usually styled in the Writs of Summons, "Magnates or Proceres," are most essential, necessary, constituent Members of English Parliaments and Great Councils, to which, they always were, and ought, of Right, to be summoned, and that, according to the Constitution of England, no Parliament may or ought to be summoned without them. In all Writs of Summons, the Commons are summoned "ad consentiendum hiis quæ de Communi Consilio Regni, Prelatorum, Magnatum et Procerum contigerit ordinari," and no Treaty or Conference, between them and the Lords and Great Men is ever mentioned. Hence it appears probable that the Lords and Commons never sat and consulted together, as one House, in the Parliaments of England. (p) The number of Peers summoned to the Councils and Parliaments varied, from many assignable causes. Such were, their absence in Foreign Parts, Special Services, Civil Wars, Attainders, Alienations of Baronies, Deaths, and the Creation of new Peers. (p) The first particular mention of the separation of the Commons from the Lords occurs 1352, 6 Edward 3, at which time the Commons appear to have no regular Speaker. The numbers of Temporal Peers summoned, from 49 Henry III., to 23 Edward IV., are given in a Table hereunto annexed. All ancient Records evince that the Lords were the only original Members of our Great Councils and Parliaments, many hundred years before any Knights, Citizens, or Burgesses, were admitted to them by the King and the House of Lords, who, on their admission, received no Power, Judicature, or Jurisdiction from the Commons, which they had not of right enjoyed and exercised in all precedent ages, not only without the least complaint or opposition of the Commons in any Parliament before 17 Car., but with the ready acknowledgment of their inherent Privileges, and a spontaneous deference to their acknowledged superiority as Legislators and Councillors. (q) The same Records as clearly evince the fact, that the Old Lords and House of Peers, in no cases, ever exercised so exorbitant, arbitrary, and tyrannical a jurisdiction and illegal Power, as the Commons have, on many occasions, usurped. To the Peers of England is the nation indebted, on the other hand, for the important Charters which guard its Liberties, and for the enactment and preservation of some of its most important constitutional Laws. Besides the Spiritual and Temporal Peers, certain Individuals have, from very early periods, been summoned by Writ to the Parliaments and Great Councils of the Kingdom, as Assistants to the King and House of Lords. (r) These Assistants were mostly the King's Great Officers, Clergymen, as well as Secular Persons, who were no Lords, nor Barons of the Realm, his Treasurer, Chancellor of Exchequer, Judges of his Courts at Westminster, Justices in Eyre, Justices Assignes, Barons of Exchequer, Clerks, Secretaries of the Council, and sometimes his Serjeants at Law, with such others as he thought meet to summon. In later times, the Chief Justices, Chief Baron, and all the King's Justices, Barons of the Exchequer, Serjeants at Law, the Masters of the Rolis, and some Masters of Chancery, have usually been summoned, as Assistants, to council and advise the King and Lords, in all matters of Law and Difficulty, as also to carry Messages, Bills, and Orders, from the Lords to the Commons' House, and return Answers from them upon occasions when they please to return Answers by them, and not by Messengers of their own. (s) Of these several Assistants, it may be observed (1) That they are no essential Members of the Parliament or Great Councils, which may be held without them. Some (2) That they vary in number according to the King's pleasure. times most of them are Deans, Archdeacons, and other Clerks, who had always the Title "Magister" prefixed. At other times, they were chiefly Laymen, and two or three Clerks. (3) The Chief Justice and other Justices of the King's Court at Westminster, and the Chief Baron, were constantly sun summoned, in more or less numbers, and the King's Serjeants, frequently. (t) (4) By "the King and his Council," the King's Justices, and others summoned to Parliaments and great Councils, as his Council, and not as Spiritual and Temporal Lords, seem to be most properly designated. They were not the Lords of the King's Privy or Continual Council, nor yet the Lords in Parliament, or Parliament itself. (q) Prynne i., 440. (7) The First Writ is 23 Edward 1. See the Forms and their Varieties to 1 Edward 4, Prynne P. i., 341, 360. (8) This account of the Assistants in the earlier Reigns may be compared with the List of such Assistants and Officers as given in the Journals of the Lords, Feb. 7, 1643. The Lord Newburgh, Chancellor of the Duchy, Mr. Baron Trevor, Mr. Justice Reeves, Mr. Justice Bacon, Mr. Serjeant Whitfield, Mr. Serjeant Fynch, Sir Edward Leech, Sir Robert Rich, Mr. Page, Dr. Aylett, John Brean, esq., Clerk of the Parliaments, John Bolles, esq., Clerk of the Crown in Chancery, Alexander Thayne, Gent., Usher of Black Rod, John Myller and John Throgmorton. (t) 1 he first issue of Writs to the King's Serjeants-at-Law, "Servientes Regis," was in 9 and 10 Edward 3. (5) They were never licensed to appear by Proxies or by Attorneys, as the Spiritual and Temporal Lords sometimes are. (6) Though not essential Members of Parliament, they yet had great power and Authority, in receiving and answering Petitions, determining weighty and doubtful Cases, and in making Ordinances and Acts, &c., even in the Parliaments themselves. Besides these usual Assistants, it has been the practice of our Kings to summon to their Councils, upon extraordinary occasions, divers individuals, Knights, Gentlemen and others, no Peers, whose opinion and advice were considered of value and importance. But, as before the existence of the Commons, as a distinct branch of the Legislature, such general Writ of Summons to those who held not by Barony, and are no Lords by Special Creations or Descent, to treat with the King and Lords once or oftener, neither made them nor their Heirs male, in point of Law or Right, Lords or Barons of the Realm for Life or Inheritance, nor gave them Right of Summons, so could they in no respect be considered in the light of Commoners summoned as the later Members of the lower House, chosen, according to their qualifications, by the free election of those privileged to make such Election as their Representatives and Attorneys, to manage their own and the general interests of the Nation. Though, before the time of Edward the Third, such occasional Summons are to be found in Records, they were few under him, and after him, no Precedents occur of Spiritual Lords and others Summoned, who held not by Barony: and few of Knights and Laymen summoned to attend the House of Lords. It may however be remarked that from the 49th Henry III., to the last Parliament of King Charles, there is no Precedent of the omission of Writs of Summons to any of the Ancient Nobility, except on the grounds already assigned. (v) For a long period after that at which Knights, Citizens and Burgesses obtained the privilege of a customary Summons to the Parliaments and Great Councils of the Realm, they were elected, and impowered only, "ad faciendum quod de communi consilio ordinabitur in præmissis;" while the Earls, Barons and Nobles were summoned "locuturi et super prædictis negotiis tractaturi." The Knights in every Shire were elected in the full County Court, by and for the whole County, from whom they received sufficient Powers for the above mentioned purpose. The Sheriffs exacted and received from every Knight, as well as from every Citizen and Burgess, elected and returned, special Manucaptors, of good quality, for their appearance at the day and place appointed by the Writ. The number of these Sureties was sometimes four or six, but usually two, and the practice continued through the Reigns of Edward I. and II. till the 12th Edward IV., and 1 Hen. V., though in these later times, they were often omitted. As regards the Knights, Citizens and Burgesses, manifold varieties and differences in the form of the Writs, both of Election and Prorogation, occur both before, and since the Statutes, Hen. IV., V. and VI, touching Elections. Before the Statutes 7 Hen. IV. c. 15, 11 Hen. IV., c. 1, 1 Hen. V., c. 1, 6 Hen. VI., c. 4, 8 Hen. VI. c. 7, 10 Hen., VI., c. 2, 23 Hen. VI., c. 15, 9 Hen. VIII., c. 16, 27 Hen. VIII., c. 26, 34 Hen. VIII, c. 13, 35 Hen. VIII., c. 11, the Kings of England had a very large and absolute power in limiting and prescribing in, and by, their Writs to the Sheriffs, Mayors, Bailiffs and others, both the respective numbers, and likewise the qualifications of the Knights, Citizens, Burgesses and Barons to be elected and returned. They sometimes commanded Four, but mostly Two Knights; sometimes the self (u) See Prynne, i., 366. same Knights, Citizens and Burgesses to be returned a second time, and new ones to be elected only in place of the deceased, sick, or infirm Members. At other times, they summoned only the moiety of the old Members, to perfect what the whole number had hastily agreed to. They ordered new Elections, in place of those who could not attend, or were doubly returned. They sometimes prescribed Two Citizens, sometimes Four for the City of London, and for each of the Ports; at others, Two Barons only for all the Ports. They sometimes ordered two, at other times, only one Citizen or Burgess for each City or Borough, as occasion might arise, now and then omitting some Cities and Boroughs which before sent Members, and creating by Patents, Writs, or both, new Cities and Boroughs, with power to elect; and creating creating other Boroughs and Cities Counties within themselves; then issuing Writs to their Sheriffs, Mayors and immediate Officers to make their Elections and Returns, which formerly were issued to and made by the Sheriffs of the Counties, without any precedent votes or subsequent consent of the Commons' House. It appears, indeed, an unquestionable fact, that, from the 49th Henry III., till the 23d Edward IV., and many years afterwards, the Commons were never the immediate or proper Judges and Deciders either of the undue Elections, Returns, Numbers, or Qualifications of their own Members, or Speakers. The Kings or their Council, together with the House of Lords, held, in these matters, the entire Jurisdiction. The general Qualifications of those to be elected, were prescribed by the tenor of the Writs; which were issued according to the King's sole Authority and pleasure, or were modified according to the requisitions of certain Acts granted at the request and Petition of the Commons themselves. The first Writs addressed to the Sheriffs, 15 John, directs them to send "Quatuor discretos Milites de Comitatu." The Writ of 49 Henry III., prescribes that two "Milites de legalioribus et discretioribus," and two Citizens and Burgesses, "de discretioribus et probioribus," and Four Barons "et probi Homines de legalioribus et discretioribus Portus," should be elected and sent. The Knights commanded to appear, 22 Edward I., are to be "de discretioribus et ad laborandum potentioribus," also "legales," &c. In the 28th Edward I., the Sheriffs, Coroners and Community of the Counties are directed to send Three Knights, or others of the most honest, lawful and discreet Freemen, (Liberi Homines) to be elected by Assent of the County. In 4 Edward III., a Proclamation sent to all Sheriffs, after the Writs of Elections, commands them to send "deux de plus Leaux et plus suffisons Chevalers et Sergeantz (Esquires, not Serjeants-at-Law) qui soient mi suspiciouns de male coveigne, ni communes maintenours des Parties." In 13 Edward III., the Writ is varied, directing that two Knights shall be sent, "gladiis cincti," and two Citizens and Burgesses, "de discretioribus et probioribus Militibus, Civibus et Burgensibus, et ad laborandum potentioribus," according to which clause, none but actual Knights, by Order, as well as Tenure, might be elected and returned. The word "probioribus" extant in no Writs since 49 Henry III., is here added, and "Legalioribus" is omitted. The Writ 22 Edward III. directs that two Knights "gladio cincti et Ordinem Militarem habentes et non alii, et duo Cives et Burgenses de aptioribus, discretioribus et fide dignis, Militibus, Civibus, &c." shall be elected. Those to be sent, 24 Edward III., were "de discretioribus, &c. qui non sunt Placitorum aut Querelarum Manutentores, aut ex hujusmodi questu viventes, sed homines valentes et bonæ fidei et publicum commodum diligentes." The Writ of 26 Edward III. summons "unum Militem de provectioribus discretioribus et magis expertis Militibus de assensu Comitatus, duos Cives (London) de magis expertis, et unum de Civitatibus et Burgis, de provectioribus, &c." To guard against the election of low and improper Persons, the Writ of 27 Edward III. prescribes, that those elected shall be "de elegantioribus Personis," who are to appear personally, and without excuse, on the first day. This term is here used for the first and last time. Another variety is adopted in the Writ 36 Edward III., which commands the election of Knights, "de discretioribus, melioribus et validioribus." The Writ of 44 Edward III., directs that there shall be chosen two Knights, "gladiis cincti et in armis et actubus armorum magis probati et circumspecti et discreti, durante Parliamento continue moraturi, plenam et sufficientem potestatem ab ipsis Communitatibus habentes ad consulendum et consentiendum hiis quæ per nos, et Prælatos, Magnates et Proceres, fieri et ordinari contigerit, favente Domino." On complaint made by the People that Sheriffs and other unfitting Persons were elected Knights, an Ordinance made, 46 Edward III., to rectify such abuses, directs that "Nul Home de Ley pursuent busoignes en la Courte le Roy, ne Viscount pur le temps que il est Viscount, soient retournez, ne acceptez Chivalers des Countees, ne que ces qui soient Gentz de Ley et Viscountz ore retournez au Parlement aient Gagez." In the 47th Edward III., the form is again altered, and prescribes the Election of Two Knights, &c., "seu Armigeri digniores et probiores et in actibus armorum magis expertis, &c." and two Citizens, &c., “qui in navigio et exercitio mercandisarum notitiam habeant meliorem." "Nolumus autem quod tu, seu aliquis alius Vicecomes, aut aliquis alterius conditionis quam superius specificatur, aliquanter sit electus." In a Parliament, 7 Richard II., Thomas de Camoys, a Baronet, or Baron of Parliament, and who had been summoned by Writ to this and other Parliaments as such, being elected a Knight of the Shire, a new Writ is issued by the King for another Election. (w) A Clause is inserted in the Writs of 11 Richard II, for the Flection of two Knights, "in Debatis modernis magis indifferentes," but before the Election is made, it is superseded and revoked, by advice of the King's Council. Hence it appears, that though the King may advise and command the Election of two of the best, wisest, most discreet, fit, most elegant and able Knights, Citizens, and Burgesses, and those most able to take pains; and likewise prohibit the election of maintainers of Quarrels and false Suits, persons of ill fame, living by maintenance and dishonest gain, Sheriffs of Counties, practising Lawyers, Barons of the Realm, and other unfitting Persons for public Services, yet he ought not to insist upon any new Qualifications, or Restraints, in his Writs, contrary to the ancient and usual form, liberty and freedom of the People's Elections. In 5 Henry IV., a new Clause was, however, introduced, prohibiting "all Apprentices, or any other Men of the Law, to be elected," as well as the Sheriff's. The probable object of which Clause was to exclude practising Lawyers, who, it was found, could not duly attend the service of the House, and thus neglected the business of the Parliament and Kingdom. (x) The Writ of 8 Henry VI. directs that only Knights "gladiis cincti, magis idonei, &c., et similiter in eisdem Comitatibus commorantes et residentes" should be elected. A power is given to the Justices at Assizes to take inquisition as to Persons returned contrary to this Ordinance, and Sheriffs making improper Returns are fined £100. (10) See Prynne, ii., 119, who gives evidence of the meaning of the word from the "Hujusmodi Baronetti" of the Writ itself, and the authority of Selden. It is to be remarked, however, that the Writ as given in the Lords' Report, App. iv., 707, has the words "Banerettus," and "Hujusmodi Baneretti." It appears, 1, 243, that the Lords' Committees have never been able to ascertain the precise meaning of the term Banerettus. (2) "Nec Apprenticius aut aliquis alius Homo ad Legem aliqualiter sit electus," or as Walsingham's Hist. Angliæ, p. 414, explains it, "qui in Jure Regni docti fuissent aut Apprenticii, sed tales omnino quos constat ignorare cujusque Juris Methodum." |