This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. Searching, reading, printing, or downloading EEBO-TCP texts is reserved for the authorized users of these project partner institutions. Permission must be granted for subsequent distribution, in print or electronically, of this text, in whole or in part. Please contact project staff at eebotcp-info@umich.edu for further information or permissions.
I Now come to consider the Honourable House of Commons, and the Use,* 1.1 Constitution, and Priviledges of it, and shall first consider the Summons by which they have their Pow∣er to act as an House, and third Estate in Parliament.
Mr.(c) 1.2 Prynn hath cleared, that all the Writs of Summons directed to Sheriffs (in King John, and Henry the Third's time before 49 H. 3.) to send Knights to the King at set times, were either for Information of the Council what voluntary aid each particular County would grant the King in his great necessity, or to assist with Men and Arms, and were not elected as Repre∣sentatives of the Commons, till 49 H. 3. To whom I shall re∣fer the curious for Satisfaction, as also to Dr. Brady, who hath by his own Inspection, as well as the considerate application of what Mr. Prynn hath amassed (in his Books since his late Majesties Restauration, and after 1648) composed many most useful Observations for the understanding of the ancient cu∣stoms, usages, and practices relating to Parliaments. There∣fore I shall endeavour to be as short as possibly I can, and with∣out obscurity contract what they and most others that treat of the House of Commons, have at large filled Volumes with.
The form of the Writ, 49 H. 3. to the Sheriffs is not(d) 1.3 ex∣pressed, but after the recital of the Writ to the Bishop of Du∣resm and Norwich, and the eodem modo to the Bishops, Abbats, Priors, Deans, Earls, Lords, and Barons, there follows this entry in the Record, Item mandatum est sing••lis Vicecomitibus per Angliam quod venire faciant duos Milites delegalioribus, probioribus, & discretioribus Militibus singulorum Comitatuum, ad Regem Lon∣don, in forma praedicta.
Item in forma praedicta scribitur Civibus Ebor. Lincoln. & cae∣teris Burgis Angliae, quod mittant in forma praedicta duos de discre∣tioribus, legalioribus, & probioribus tam Civibus quam Burgensi∣bus suis: and so to the Barons of the Cinque-Ports, which runs thus; Rex Baronibus & Ballivis Portus sui de Sandwico. Cum Prae∣lati & Nobiles Regni nostri tam pro negotio Liberationis Edwardi Primogeniti nostri, quam pro aliis Communitatem Regni nostri tan∣gentibus, ad instans Parliamentum, &c. Vobis mandamus in fide & dilectione quibus nobis tenemini, firmiter injungentes, omnibus aliis praetermissis mittatis ad nos ibidem, 4 de legalioribus & dis∣certioribus Portus vestri, &c. Nobiscum & cum praefatis Magnatibus Regni nostri tractatum & super praemissis consilium impensuri.
From all which, it is observable, first,* 1.4 that in all probability the Writs then issued to the Knights, Citizens, and Burgesses, were the same in form and substance, with those to the Spiritual and Temporal Lords, and in those to the Sheriffs, &c. Secondly, the Qualifications of those to be elected are limited: Thirdly, It doth not appear whether the Counties themselves, or the Sheriffs alone were to elect. Fourthly, The Writs for electing Citizens and Burgesses were directed immediately to the Citizens and Burgesses themselves, not to the Sheriffs of the Counties. Lastly, that no Writ issued to the Citizens of London, their Liberties then being seized in∣to the King's Hand, and that York and Lincoln are the only Ci∣ties mentioned particularly in the Roll.
The first Writs, entred at large in the Rolls, are those(e) 1.5 22 E. 1.
wherein is expressed, that the King intending a Colloquium & Tractatum with his Barons, and great Men, he commands that the Sheriffs cause to be elected two Knights,* 1.6 of the more discreet and more able to take Pains, &c. to come to Westminster, &c. with full Power for themselves, and the whole Communi∣ty of the said County, to consult and consent each for himself and the said Community, to those things, which the Earls, Ba∣rons, and Nobles aforesaid unanimously ordain in the Premis∣ses; so that for want of such like Power, the Business remain not undone.
I shall now insert what Variations I find in the Writs of Sum∣mons, promiscuosly, whether to Knights, Citizens, or Bur∣gesses, unless there be some remarkable difference to be ob∣served.
First,* 1.7 As to their Qualifications, generally, both Knights, Citi∣zens, and Burgesses are to be de legalioribus & discretioribus, & ad laborandum potentioribus. In the Writ 25 E. 1.(f) 1.8 it is probioribus & legalioribus; and some two, or all of these Epi∣thetes are generally used, till(g) 1.9 22 E. 3. m. 7. dorso, where it is expressed, that the Knights be gladio cinctos & ordinem mi∣litarem habentes & non alios, & de qualibet Civitate, & de quoli∣bet Burgo duos Burgos de aptioribus, discretioribus, probioribus, & fide dignis Militibus, Civibus & Burgensibus,* 1.10 and in the Twen∣ty fourth of E. 3. there is an addition and limitation,* 1.11 Qui non sunt Placitorum, aut querelarum manutentores, aut ex hujusmo∣di quaestu viventes, sed homines valentes, & bonae fidei, & publicum commodum diligentes eligi: and the self-same Limitations are in the 25, 28, and 29 E. 3. So that it was used so long as the King thought fit. In(h) 1.12 26 Ed. 3. it is unum Militem de provectioribus, di∣scretioribus, & magis expertis Militibus, and so for Citizens and Burgesses: by which it appears the King desired not any under Age (as now is allowed) to be chosen. In 31 Ed. 3. besides(i) 1.13 the usual words de discretioribus & probioribus, there is ad∣ded de elegantioribus personis eligi. Which in no Writ else before or after is to be found. In the 36 E. 3.(k) 1.14 it is de meliori∣bus & validioribus Militibus, &c. That of the Forty fourth of(l) 1.15 E. 3. runs, Duos Milites gladiis cinctos & in Armis & Actibus Armorum magis probatos & circumspectos & discretos.
It appears by the Parliament Roll, 46(m) 1.16 E. 3. That it was accorded, and assented to in that Parliament, and an Or∣dinance made, That no Lawyer pursuing Business in the Court of the King, nor any Sheriff while he was Sheriff, should be returned, or accepted Knights of the Counties; and if any were so returned, they should have no wages. Therefore in the fourteenth Number of the said Roll, it is thus expressed, Mes voyet le Roy, que Chevalers & Serjaunts, (i. e. Esquires, not Serjeants at Law) des meulieur valeurs du paiis soiz retornez desore Chevalers en Parlement, & quils sount esluz en plein Counts. That Knights and Esquires of greatest value in their Country should be chosen in the full County.
The very next Writ 47 E. 3.(n) 1.17 runs thus, Duos Milites gla∣diis cinctos se•• Armigeros, (which explains the word Serjaunts before, as in that Age being reputed Servants to Knights, as holding Lands in such a Tenure of them) de dicto Com. dignio∣res & probiores, & in Actibus Armorum magis expertos, & discretos, & non alterius conditionis, & duos Cives & Burgenses, qui in navigo & exercitio mercandisarum notitiam habeant meliorem, eligi; and then in the Close, follows, Nolumus autem quod tu seu aliquis alius Vicecomes Regni praedicti, aut aliquis alteri••s con∣ditionis quam superius specificatur, aliqualiter sit electus; and the last Clause, till the 11 Rich. 2. was used, and from the 12th. to the last of Rich. 2. the words alterius conditionis are omit∣ted, and so in Ed. Fourth's time; but the Clause, that the Sheriff be not chosen, is retained.
To these we may add, That Bannerets were not to be cho∣sen Members of the House of Commons,(o) 1.18 7 R. 2. in the case of Thomas Camoys thus, Nos advertentes quod hujusmodi Banneretti ante haec tempora Milites Comitatuum ratione alicujus Parliamenti eligi minime consueverunt; ipsum de Officio Militis ad dictum Parliamentum pro Communitate Com. praedicti venturi, exonerari volumus, and so commands the Sheriff to chuse ano∣ther.
In the 11 R. 2. we find a(p) 1.19 new qualification in the Writ, That the Knights, &c. should be Gladio cinctos, idoneos & dis∣cretos, & in Debatis modernis magis indifferentes;* 1.20 but the King being informed, that this new Clause, indifferent in the mo∣dern Debates (which only was to the Knights, not to the Ci∣tizens or Burgesses) was contrary to the forms of Elections an∣ciently used, and against the Liberty of the Commons, he su∣perseded, and revoked that Clause by another Writ.
In the 5 H. 4. an unusual new(q) 1.21 Clause was added to the prohibition of Sheriffs, Nolumus, &c. nec Apprenticius a••t aliquis alius homo ad Legem aliqualiter sit electus: Concerning this and that in the 46 Ed. 3. the curious Reader may peruse Sir Ed.(r) 1.22 Coke, whose opinion Mr. Prynne(s) 1.23 from the Roll, and from Walsingham, clearly confutes, however that Parliament is since called indoctum.
After this, upon making the Statutes 7 H. 4. c. 15.11 H. 4. c. 1. upon the Commons Petition, the ancient form for the Writs was somewhat altered and enlarged, though little as to the qualifi∣cations, but as to the manner of Elections, &c. of which I shall discourse by it self.
23 H. 6. c. 15.(t) 1.24 a Statute was made concerning Elections of Knights, therefore in the Writs of Summons 25 H. 6. it runs thus, Milites notabiles, seu saltem notabiles Armigeri, hominesve generosi de natu eorundem Com. qui habiles sunt Milites fieri, & nullus homo de gradu valettae, & gradu inseriori de essendo Milites hujusmodi existant.
Having thus treated of the Ancient Qualifications,* 1.25 I shall subjoin the modern, which are comprised in short, To cause
(u) 1.26 two Knights girt with Swords, the most fit and discreet of the County aforesaid, and of every City of that Country two Citizens, of every Burrough two Burgesses of the discreeter and most sufficient to be freely and indifferently chosen, &c.
Having thus discoursed of the Qualifications of the Persons elected; before I make any remarks upon the whole, it is fit to note the Electors and manner of Election. Some are of opini∣on, that, as the greater and lesser Tenents in Capite, after King John's Charter, were the only Lay constituent Members of Par∣liament, so the still smaller Tenents to those that held in Capite, and the smaller Tenents in Capite, if not they only, did elect the Knights of Shires.
But I shall, as fair as Records will give me light, by particu∣lars clear this, and the power that was given them by the Com∣munity of the County to the Knights.
The first(w) 1.27 Writ hitherto found, is only, That the She∣riff shall cause to be chosen two Knights, and that they have power, &c. as I have before related in the Writ to the She∣riff of Northumberland;* 1.28 it is to cause two Knights to come, chosen by the consent of the County, and to have full power for themselves singly, and the Community of the County; and so likewise, two Citizens and two Burgesses with the Assent of the Community of the City or Burrough. The Knights were elected by the Community of the County, that is, as Dr. Brady makes it clear in his(x) 1.29 Glossary, the greater and less Tenents in Capite; and as for Cities and Burroughs, such were the chu∣sers as held Lands in Free Burgage of the King, or some great Lords who held in Capite.
Ann. 26 E. 1.(y) 1.30 expresseth no more but the Election in gene∣ral, and the power to be given the Elected, Ita quod dicti Mi∣lites plenam & sufficientem potestatem pro se & Communitate Com. praedict. & dicti Cives & Burgenses pro se & Comunitate Civita∣tum & Burgorum praedictorum divisim ab ipsis tunc ibidem ha∣beant, &c.
Before I proceed any further,* 1.31 we must note, that in the Re∣turns made by the Sheriffs to these Writs, there are found 26 E. 1. four Manucaptors for every person elected, and in others two: these did engage themselves, that the Knights, Citizens, or Burgesses so elected should appear at the Parliament according to the time appointed.
In the County of Bedford, I find Rich. de Rous Knight elect∣ed, and no Manucaptors returned, but that the Sheriff distrain∣ed eight Oxen, and four Horses of him, that he should come at the Day, &c. This was done by vertue of that Clause in the Writ, & eos ad nos ad praedictos diem & locum venire facias; and this way of having Manucaptors, continued till the 12 E. 4.(z) 1.32 though many had none in latter times. Mr. Prynne ob∣serves, That the Knights in every Shire were elected in the full County, by and for the whole County, and that the Citizens and Burgesses were then also elected per totam Communitatem.
In all the Writs of Richard the Second, there is this Clause more fully inserted than in any before, That the Election be in pleno Comitatu tuo de communi assensu ejusdem Comitatus.
Upon the making the Statutes 7 H. 4. c. 15. and 11 H. 4. c. 1.* 1.33 for regulating abuses in Elections, the Writs of Summons 8 H. 4. and all his time, and so(a) 1.34 1 H. 5. were accordingly al∣tered, that Proclamation should be made by the Sheriff, in the next County day after the receipt of the Writ, and the Knights to be chosen libere & indifferenter,* 1.35 free and indifferently by those that were present at the Proclamation; and shall return the names of the Knights, Citizens, and Burgesses,* 1.36 in certain In∣dentures betwixt the Sheriff, and those that were present at the Election, whether the persons elected were present or not, &c.
The Returns to the Writs 1 H. 5.* 1.37 shew the Election to be by common assent and consent of those present, as that for Lestwy∣thiel, where 32 Electors are named, and that for Surry hath only four, but adds, & omnium aliorum fidelium ibidem existentium. The Indenture for Sussex is in French, and saith, Les Gentilles homes & Communes, the Gentlemen and Commons had chosen Richard Sayvile, &c.
The Sheriff of Bristol saith, Coadunatis discretioribus & ma∣gis sufficientibus Burgensibus, ex assensu Johannis Clive Majoris Villae praedictae, & aliorum plurimorum existentium eligimus, &c. The elected were two Burgesses of Bristol, Thomas Norton and John Leycester, both for Knights for the County of Bristol, and Bur∣gesses for the Villa of Bristol; and in another these are called Burgenses and Mercatores.
The next alteration that I find, is after the Statute of the(b) 1.38 8 H. 6. c. 7. which agrees with that of 23 H. 6. that every Knight to be chosen within the Kingdom of England to come to the Parliament, shall be chosen by such as live in the Coun∣ty; whereof every one have a free Tenement to the value of Forty Shillings per annum, beyond all Reprizes; and that those who are elected be abiding, and resident in the said County, and the Sheriff have power upon Oath to examine the Electors, what yearly Estate they have, and that the Sheriff incur the pe∣nalty of 100 Marks for his false return, and the Knights so re∣turned lose their Wages.
There are several Precepts that command, that at such E∣lections(c) 1.39 no person come there Armed, or arrayed in War∣like manner, or do, nor attempt any thing that may be in disturbance of the Kings Peace, or the Election; as particular∣ly is expressed in the Writs, 2 E. 3. m. 31. dorso, and several others to be perused in the first part of Prynne's Brief Register, a p. 27. ad 28, 177, 214. Cl. 5 E. 2. m. 22. dorso, 18 H. 6. and several other places which were prohibited, that Elections thereby might be made free.
That it may appear, that the Elections in ancient times were not made by such as we now call Freeholders of forty Shillings
a Year (which now is established by Statute Law) I think it not amiss to insert what I find of a particular usage in York∣shire;(d) 1.40 where•••• it appears by the first Indentures of the Electi∣ons and Returns of Knights for the County of York, that the Atturnies of the Archbishop of York, and of sundry Earls, Lords, Nobles, and some Ladies, who were annual Suitors to the County Court of Yorkshire, were sole Electors of the Knights, as appears by the Return 13 H. 4. upon the Writ of 12 H. 4. betwixt Edm. Sandford Sheriff on the one part, and Will. Holgate Attorney of Ralph Earl of Westmorland, Will•• de Kyllington Atturney of Lucy Countess of Kent, Will. Hesham Atturney of Pet. Lord de M••lolacu, William de Burton Atturney of William Lord de Roos, Rob. Evedal Atturney of Ralph Baron of Graystock, William do He∣ston Atturney of Alex. de Metham Knight, Henry de Preston Atturney of Henry de Percy Knight, chuse John de Ever Knight, and Robert de Plompton Knight.
Also 2 H. 5. The Indenture is betwixt William de Harring∣ton Knight, Sheriff of Yorkshire, and Robert Maulevere•• Attur∣ney of Henry Archbishop of York, William Fencotes Attur∣ney of Ralph Earl of Westmorland, William Archer Atturney of John Earl Marshal, and so the Atturnies of Hen. le Scrop Knight Lord of Masham, of Peter de Mulolacu, Alexander de Metham. Robert Roos, of Margaret, which was Wife of Henry Vavasor Knight, and of Henry Percy.
The like are found in the Eighth and Ninth of H. 5. and the 1, 2, 3, 5, 7 H 6. in all which the Atturnies only of No∣bles, Barons, Lords, Ladies, and Knights, who were Suitors, made the Elections of the Knights of Yorkshire, in the County Court, and sealed the Indenture. I have a French Letter of Atturney from the Lady Ross, to that purpose; concerning which, if God give me Life, I shall give an account in my An∣tiquities of Yorkshire,
This Method ceased before 25 H. 6. at which time the Re∣turn made by Robert Ʋghtred Sheriff of Yorkshire, hath the Names of Forty two Gentlemen, most of which are of very ancient Families, and such as had great Estates then, and so continue to have; though I doubt not but (as it is the Custom now) the much lesser part of those present were only inserted as Parties to the Indentures. However by the Community we may understand, who elected were not like the Freeholders now.
The next thing we are to consider in the Writs of Summons to Parliament,* 1.41 is what the Knights, Citizens, and Burgesses so elected, were by the Writ authorized to do.
The first Writ(e) 1.42 that we find for Election of Knights of Shires, expresseth their convening to be, To consult, and con∣sent for themselves, and the Community, to those things which the Earls, Barons, and foresaid Nobles unanimously should ordain in the premisses; and the Writ to the Sheriff of Northumberland is ad a••diendum & faciendum quod & tunc ibi∣dem
plenius injungemus, to hear and do what we shall then and there fullier enjoin.
In the Writ 25(f) 1.43 E. 1. the King intending to confirm the great Charter, and Charter of the Forrest; that he might levy the eighth part of all the Goods of his Lieges, for his most urgent necessity against the French; convenes the Parliament before Prince Edward his Son, and the Knights are to meet to receive the said Charters, & facturi ulterius quod per dictum Filium nostrum ibidem fuerit ordinatum; to do further what should be ordained by the Prince.
The Writ 25 E. 1.(g) 1.44 expresseth that the Knights, Citi∣zens, and Burgesses, are to do what then shall be ordained in the Premisses by the Common Council; and so the Returns are ad faciendum quod tunc ibidem ordinabitur.
In 17 E. 2.(h) 1.45 it is enjoyned, that the Knights, &c. be there, ad faciendum & consentiendum hiis quae in dicto Parlia∣mento ordinari contigerit super negotiis antedictis.
Anno 21 E. 3.(i) 1.46 there is some more Power granted to the Knights, &c. ad tractandum, consulendum, & consentiendum hiis quae tunc favente divina Clementia contigerit ordinari. Where∣as before it was only to hear and do what was ordained by the King, the Prince, or the great Council; here it is to treat, con∣sult and consent to what then should be ordained. But the Writ Anno 36.(k) 1.47 explains who had the ordaining Power, for it runs, ad consentiendum hiis quae per nos, ac dictos Praelatos, Magnates & Proceres ordinari contigerit. So here the King, the Bishops, and the Nobles ordain, and the House of Commons are to assent. Anno 47 E. 3.(l) 1.48 the words are, ad facien∣dum, & consentiendum eis quae tunc de Communi Concilio Regni no∣stri favente Domino contingant ordinari; which Form is continu∣ed to this day: so that according to the import of the Writ, the Commons are to do and assent to what shall be ordained in Parliament; by which two words I suppose they have the full Power to frame Bills, and to assent, which also implies a Power of Dissent to the Bills sent to them by the House of Lords.
Having thus drawn into one Scheme, the most material Al∣terations, and variety of Expressions, from all the Writs of Summons, of Mr. Prynne and others, that fill so great Volumes, and truly (as I hope) quoted all the Records, which illustrate these Particulars, and in a very clear Landscape represented the most material Parts of the two so noble and wisely constitu∣ted Houses; from whose great Wisdom (with the Sovereigns Authority and Fiat) all those wholesome and necessary Laws are derived, that establish this great Monarchy: I shall now pass to some general Remarques, and from thence to the anci∣ent and modern Priviledges of the House of Commons.
First it is very obvious,* 1.49 that the Kings of England formerly were not confined to summon only two Knights, Citizens, and Burgesses as now; for Anno 22(m) 1.50 E. 1. the King issued out his Writs of Summons for two Knights of every County, after
which, follows a second Writ, entred immediately after in the same Dorse, for other two Knights in these words, Praeter illos duos Milites eligi facias alios duos Milites legales, &c. So 28 E. 1. three Knights, or other three de probioribus, legalioribus, & discretioribus Liberis Hominibus, &c. eligi. These probi & le∣gales homines were such as held in Capite. So in the(n) 1.51 26 of E. 3. the King considering that it was Harvest time, that he might not withdraw Men from that Employment, unum tan∣tum Militem de quolibet Comitatu ad dictum Concilium mittendum habere volumus ista vice. So(o) 1.52 45 E. 3. the King in his Writ saith, That he might spare the Labours and Expences, he will have treaty with some only of the Magnates, (by which the Knights of Shires here are to be understood) Citizens and Bur∣gesses,* 1.53 therefore appoints one Knight for the County of Kent, one Citizen for Canterbury, and one for Rochester, whom he names, if they be alive, otherwise the Companion of him that was before.
In 18 E. 3. the Writs issued only for two(p) 1.54 Knights in every County, and no Writ for Electing Citizens or Burgesses; and 26 E. 3. the Writs are for one Knight in eve∣ry County, and no Citizens or Burgesses: yet in(q) 1.55 this the King issued out particular Writs to Mayors and Bailiffs o•• Cities and Burroughs, to elect, and return one Citizen for e∣very City, and one Burgess for every Burrough.
Secondly, That the Kings of England had a Power to super∣sede particular Persons being chosen, to resummon those that returned without leave, or appoint others in their places, and omit sending Writs to some Cities and Burroughs that had for∣merly sent, and to create new Burroughs.
So the Lord Camoys,(r) 1.56 as I have instanced before, being elected by the King's first Writ, the King by new Writ declared it null, and ordered to proceed to a new Election, and the King appears in that Age to be the sole Judge of void, and dou∣ble Elections. So in the(s) 1.57 28 Ed. 1. Phillip de Geyton, be∣ing chosen one of the Knights for the County of Northampton, and could not attend, the King orders another to be chosen. So 5(t) 1.58 E. 2. because the Knights, Citizens, and Burgesses of Yorkshire, went away for certain causes not there expressed (it is probable without the Kings Leave) therefore he sends his Pre∣cept to the Sheriff, to cause them to return, vel alios ad hoc ido∣neos loco eorum si ad hoc vacare non possint. But this more espe∣cially is to be taken notice of when I come to discouse of Privi∣ledges of Parliament.
As to the last particular of the King's appointing new Bur∣roughs,* 1.59 impowering them by special Charters to send Citizens and Burgesses to all Parliaments to be afterwards held by the King, his Heirs, and Successors, Judge(u) 1.60 Hobarts hath clea∣red it, and(w) 1.61 Mr. Prynne hath reduce them all into Chro∣nological Tables, and he makes it a certain Note, that where the Sheriff makes his Return, nulli sunt Cives nec Burgenses
in Com. praedict. or non est alia Civitas vel Burgus, or non sunt alii Burgi, we may certainly conclude that every City or Bur∣rough omitted then out of those ancient Returns, and since returned for Cities or Burroughs, were made Cities and Bur∣roughs since that time, as the curious may see at large in his(x) 1.62 Brevia Parliamenta Rediviva.
But on the other side,* 1.63 we find many Burroughs who elected Burgesses in 26 E. 1. (as particularly Pontefract and Malton in Yorkshire) had no Summons that are yet found, from 26 E. 1. to 12 E. 4. Now whether this were by the King's special Di∣rections, the Desire of the Places, (as not being willing to be at the Charge of paying their Burgesses Wages, which were in that Age exacted) or the Carelesness of the Sheriffs, is a Que∣stion not easily to be determined; though it is certain, it might be by any of these Causes. That Poverty was a principal Cause, appears in the numerous Returns of the Sheriffs of Lan∣cashire,(y) 1.64 when Lancaster and Preston before 33 E. 3. used to return Burgesses; but from thence, till after the Reign of King Edward the Fourth, we find the Return to be, Non est aliqua Civitas neque Burgus in Balliva mea: And the Reason is given in the Return 38 E. 3. Propter eorum debilitatem seu paupertatem, in∣opiam & paupertatem, or paupertatem & debilitatem, throughout the whole. For it was anciently really reputed a great Burthen for poor and small Burroughs to send Burgesses to Parliament, they being bound to defray their Charges.(z) 1.65 So the Bailiffs and Commonalty of Toriton did repute it, and petitioned the King in Parliament to free them from this Burthen; as likewise did the Abbat of Leicester, Anno 14 E. 3. the Prior of St. James without Northampton, Anno 12 E. 2. by reason(a) 1.66 of their Po∣verty, and extraordinary Expences in repairing to Parliaments, to be exempted from all future Parliaments, they not holding by Barony; and obtained their Request. So the Abbat of St. Augustine in Bristol, Pat. 15 E. 3. p. 1. m. 13.
Mr. Prynne(b) 1.67 owns, That the King by his Letters Patents may exempt a Burrough unduely charged by the Practice of Sheriffs or others to send Men to Parliament against Right and common Usage; but not(c) 1.68 such as by Duty and Custom ought to send and find Burgesses. Under this Head we may consider the Temporary(d) 1.69 Exemption of R. 2. 6 Regni, to the Burgesses of Colchester, for five years, in consideration of the new building and fortifying their Walls: yet this did not exempt them; for it was against the Statute made 5 Ric. 2.(e) 1.70 wherein it is expresly provided, That all Persons and Com∣monalties which shall from henceforth have Summons to the Parliament, shall come in the manner as they be bound to do, and have been accustomed, within this Realm of England, of old time: And the Sheriffs are punishable who leave out of the said Returns any Cities or Burroughs which be bound,* 1.71 and of old times were wont to come to the Parliament. And in(f) 1.72 23 H. 6. it is said, That divers Sheriffs of the Counties have
sometimes returned none of the Knights, Citizens, and Burges∣ses, lawfully chosen, but such which were never duly chosen, and other Citizens and Burgesses than those which by the Mayors and Bayliffs were to the said Sheriffs returned; and moreover made no Precepts to the Mayors or Bayliffs for the Electing of Citizens and Burgesses to come to Parliament. Which makes Mr. Prynne(g) 1.73 infallibly resolve, that Sheriffs did before these Acts, arbitrarily issue out their Precepts to what Cities and Burroughs they pleased, which they might the more freely do, because the Precept to them was indefinite de qua∣libet Civitate & quolibet Burgo, used in all Writs since the 23(h) 1.74 E. 1. without designing the particular Cities or Burroughs by name. By which means Sheriffs might use a kind of Arbi∣trary Power according as their Judgment directed them, or their affections of favour, partiality, malice, or the solicitations of any private Burrough to them, or of Competitors for Citi∣zens or Burgesses places within their County, swayed them; which opinion of Mr. Prynn's, as also that no new Burroughs by the Kings mere Grant, or the House of Commons Order, can be legally created, or old long discontinued Burroughs be enabled by Vote of the House of Commons to chuse and return Bur∣gesses to our English Parliaments, I shall leave to the discus∣sionof those it may concern.
There was one Custom anciently used (which was taken a∣way by the Statute of the 36 H. 6.* 1.75) that in many Counties, the Knights, Citizens and Burgesses were elected on the same day in their County Courts, by the Suitors or others resorting to it; or by four or five Citizens and Burgesses only (whereof the Mayor, Bayliffs or chief Officer was usually one) sent from every City and Burrough to the County Court, there to elect their Citizens and Burgesses, so soon as the Knights were chosen, returning them often in one(i) 1.76 Indenture, or the Knights alone, and the Citizens and Burgesses in another, under the Seals of the Citizens and Burgesses electing them, as appears by the Indenture for Cumberland 2 H 5. and that of Kent 12 H. 4. of Wilts 1 H. 5. and Bedford 2 H. 5. Before I dismiss this head, I shall note out of the great(k) 1.77 Collections of Mr. Prynne,* 1.78 that the total number of the Cities, Burroughs and Ports, either summoned by the Sheriffs Precepts or Writs to Elect and Return, or actually electing and returning Citizens, Burgesses or Barons of the Cinque Ports, from King Edward the First's Reign, to the end of Edward the Fourth, were but a Hundred and Seventy, and no more, whereof Seven never sent after E. 1st's. time, and Twenty of them but once during these Kings Reigns, and Thirteen of our Abbats, and Twenty Seven of our Priors were summoned to our Parliaments but once, and several Burroughs but twice, thrice, four or five or six times, all the whole time else being omitted: and as some were thus neglected,* 1.79 so new ones supplied the number. In Edward the Second's time Nineteen new Burroughs being added, and as
many in Edward the Third's time. During the Reign•• of Rich∣ard the Second, Henry the Fourth and Fifth, no new Burroughs created at all; and during the Forty Nine Years Reign of Henry the Sixth, but Five new Burroughs; and in Edward the Fourth's time but one. He saith, that Fourteen new Burroughs have been made in Cornwal since K. Ed. 4.(l) 1.80
By which is discovered the Error of the Compiler of the absurd gross late Imposture, Intituled, Modus tenendi Parlia∣mentum, so magnified by Sir Edward Coke,(m) 1.81 beyond all bounds of Truth and Modesty; as also the great mistake of our learned judicious Antiquary(n) 1.82 Mr. Lambard and(o) 1.83 others of great note, who affirm that the true original Title and Right of all our ancient Cities and Burroughs, electing and sending Burgesses and Citizens to our Parliaments, is Prescription time out of mind, long before the Conquest; it being a Privilege they actually, and of right enjoyed in Edward the Confessor's time or before, and exercised ever since: Indeed the whole series of the great Councils in the Saxon, Danish and Norman Kings Reigns to the Forty Ninth of Henry the Third, evince the contrary.
As to the Wages of the Knights, Citizens and Burgesses,* 1.84 it be∣ing a thing now obsolete (though not out of force by those that would claim them) I shall only note, that the first Writ for them, is coeval with our Kings first Writs of Summons; and the reason given in the Writ is, That whereas the King had summoned two Knights, &c. and they had stayed(p) 1.85 longer than they believed they should do, by reason of which they had been at no small Expence: therefore the King ap∣points the Sheriff by the counsel of Four lawful Knights, to provide for the Two Knights of the Shire their reasonable Expences.
The Writ of the 28 Ed. 1.(q) 1.86 commands that they have ra∣tionabiles expensas suas, in veniendo ad nos, ibidem morando, & inde ad propria redeundo; their reasonable Expences in coming to the King, staying there, and returning to their homes. The like we find for the Citizens and Burgesses in the 1 Ed. 2. there was Four Shillings a day allowed for every Knight, and Two Shil∣lings for every Citizen and Burgess.
Mr. Prynne(r) 1.87 gives many good reasons why these Wages were allowed, some of which I shall recite: As first, that all Laws allow Sallaries for Services, and those being public Ser∣vants and Representatives or Atturneys for the Counties, Cities, Burroughs, to consult about the great and arduous Affairs, neces∣sary Defence, Preservation and Wellfare of the King and King∣dom, and theirs, for and by whom they were intrusted; it is reason (as they receive the benefit of their good Service, in giving their good Advice towards the redressing of Grie∣vances, and making wholsom Laws) that they should have allowed their necessary Expences. Secondly, It appears in ancient times, there was no such ambition to be Parliament∣men
as of late, but the Persons elected thought it a burthen; therefore lest being elected they should neglect to repair to the Convention, they had Sureties called Manucaptors for their Appearance. Thirdly, This obliged the Counties, Cities and Burroughs to be carefuller in electing the discreetest, ablest, fittest and most laborious persons, who would speediest and best dispatch all Public business, which occasioned the short∣ness of Sessions. Fourthly, It begat a greater confidence, cor∣respondence and dependance betwixt the Electors and Elected. Fifthly, It kept poor petty Burroughs (unable to defray the Expences of their Burgesses) from electing or sending Mem∣bers to our Parliaments, and oblig'd some to Petition to be eased of the Charge; whereby the number of Burgesses was scarce half so many, and Parliaments were more expedi∣tious in Councils, Aids, Motions and their Acts and De∣bates, and so the Sessions were much shortned, the Elections were then fairer, and for the most part unquestionable, the Commons House less unwieldy, Privileges of Parliament less en∣larged beyond the ancient Standard, abuses in Elections, Re∣turns and Contests about them (by reason of the Mercenary and Precarious Voices) less troublesom: whereas now in every new Parliament a great part of the time is spent in the regulating Elections. But Mr. Prynne hints little upon one great cause of that usage, which was that in Burroughs as well as Cities, most what the persons elected were the Inhabitants in the Cities and Burroughs, Merchants, Tradesmen, or the most popular Burghers; as will appear to whoever peruseth the Chronologi∣cal Catalogue Mr. Prynne(s) 1.88 with no small pains hath collected into his Fourth Part of his Brief Register, where I believe one can pitch upon no City of Burrough from the time of Ed. 1. to the 12 Ed. 4. but he will find by the very names, that they were such as I have mentioned. I am well assured of it for Yorkshire, and particularly for the City of York, they being generally such as we find in the List of their Mayors.
Beverly hath Four of the Sirnames of good Families, and Kingstone upon Hull hath(t) 1.89 William a S. Pole, from whom the great Family of Suffolk sprung, but it is well known he was a Merchant there.
Now since every part of the Country abounds with Gentle∣men of Plentiful Fortunes,* 1.90 Generous Education, such as are versed in Affairs of their Country, as Justices of the Peace, Deputy Lieutenants, and have been Sheriffs, Members of Par∣liament, and born Publick Offices; there can be no expecta∣tion or Fear, that those that are Candidates for Parliament Men for Burroughs, will expect any Sallary or Reward, so long as they chuse them. There being generally Competitors, who instead of expecting Wages, are generally obliged now to vast expences to purchase the Votes•• of the Electors; so that now the Honourable House of Commons is quite another thing, than what it was wont to be in elder Ages, when they
were summoned principally to give Assent to what the King and the Lords did, to assent to Aids, and Taxes, and apportion their own Taxes, bring up their Petitions concerning Grievan∣ces to be redressed by the King and his Council, or the King and Lords, and draw up Impeachments against great Offenders, and such like.
Having thus considered the Writs of Summons to the Mem∣bers of the House of Commons before Henry the Seventh's time in all its branches,* 1.91 I shall give a Transcript of the Writ of Summons used at this day; whereby may be seen how much of the old form is continued, which I shall insert in Latin and English, that the Emphasis of the Original may not be lost.
REX
Vicecomiti Salutem, &c.
Quia de advisa∣mento, & assensu Concilii no∣stri, pro quibusdam arduis & urgentibus negotiis, nos, statum & defensionem Regni nostri An∣gliae, & Ecclesiae Anglicanae, con∣cernentibus; quoddam Parlia∣mentum nostrum apud, &c. die, &c. proxime futuro, teneri ordi∣navimus; & ibidem cum Prae∣latis, Magnatibus & Proceribus dicti Regni nostri colloquium ha∣bere & tractatum. Tibi prae∣cipimus, firmiter injungentes, quod facta Proclamatione in proximo Comitatu tuo post re∣ceptionem hujus Brevis nostri, tenendo die & loco praedicto, du∣os Milites gladiis cinctos, ma∣gis idoneos, & discretos Comi∣tatus praedicti, & de qualibet Civitate Comitatus illius, duos Cives, & de quolibet Burgo duos Burgenses, de discretioribus & magis sufficientibus, libere & indifferenter per illos qui Pro∣clamationi hujusmodi interfue∣rint, juxta formam Statutorum inde editorum & provisorum eligi, & nomina eorundem Mi∣litum, Civium, & Burgensium,
sic electorum, in quibusdam In∣denturis inter te & illos qui hujusmodi Electioni interfuerint, inde conficiendis, sive hujusmodi electi praesentes fuerint, vel ab∣sentes, inseri; eosque ad dictum diem & locum venire facias; ita quod iidem Milites, plenam & sufficientem potestatem pro se, & Communitate Comitatus praedicti; Cives & Burgenses pro se, & Communitate Civitatum & Burgorum praedictorum, di∣visim ab ipsis habeant, ad faci∣endum & consentiendum his quae tunc ibidem de communi Conci∣lio dicti Regni nostri (favente Deo) contigerint ordinari, su∣per negotiis ante dictis: Ita quod pro defectu potestatis hu∣jusmodi, seu propter improvi∣dam Electionem Militum, Civium aut Burgensium praedictorum, dicta negotia infecta non rema∣neant quovis modo. Nolumus autem quod tu nec aliquis alius Vicecomes dicti Regni nostri ali∣qualiter sit electus. Et Electio∣nem illam in pleno Comitatu factam distincte & aperte sub Sigillo tuo & Sigillis eorum qui Electioni illae interfuerint, nobis in Cancellariam nostram ad dictum d••em & locum certifices, indilate remittens nobis alte∣ram partem Indenturarum prae∣dictarum praesentibus consutam una cum hoc Brevi. Teste meipso apud Westmonast—
THE King
to the Sheriff, Greeting.
Whereas by the Advice and Consent of our Council,* 1.92 for certain diffi∣cult and urgent business con∣cerning us and the State and defence of our Kingdom of England, and the English Church, we have ordained a certain Parliament of ours to be held at our City, of &c. the day, &c. next ensuing, and there to have conference,* 1.93 and to treat with the Prelates, Great Men, and Peers of our said Kingdom. We command and straitly enjoyn you,* 1.94 that making Proclamation at the next County Court after re∣ceipt of this our Writ, to be holden the day and place a∣foresaid;* 1.95 you cause two Knights girt with Swords, the most fit and discreet of the County aforesaid; and of eve∣ry City of that County two Citizens;* 1.96 and of every Bur∣rough,* 1.97 two Burgesses of the discreeter, and most sufficient,* 1.98 to be freely and indifferently chosen by them who shall be present at such Proclamation according to the tenure of the Statutes in that case made and provided,* 1.99 and the names of the said Knights, Citizens and Burgesses so chosen, to be in∣serted
in certain Indentures, to be then made between you and those that shall be present at such Election, whether the parties so elected be present or absent; and shall make them to come at the said day and place;* 1.100 so that the said Knights for themselves, and for the County aforesaid, and the said Citizens and Burgesses for themselves and the Commonal∣ty of the aforesaid Cities and Burroughs, may have several∣ly for them full and sufficient power to perform and to con∣sent to those things which (by the favour of God) shall there happen to be ordained by the Common Council of our said Kingdom concerning the busi∣nesses aforesaid;* 1.101 so that the business may not by any means remain undone for want of such power,* 1.102 or by reason of the improvident Ele∣ction of the aforesaid Knights, Citizens and Burgesses.* 1.103 But we will not in any case, you or any other Sheriff of our said King∣dom shall be elected.* 1.104 And at the day and the place aforesaid the said Election made in the full County Court,* 1.105 you shall cer∣tify without delay to us in our Chancery, under your Seal, and the Seals of them which shall be present at that Election, sending back unto us the other part of the Indenture afore∣said, affiled to these Presents, together with this Writ. Wit∣ness our self at Westminster—
The Summons of the Knights, Citizens, and Burgesses.
Second Part of Brief Register, a p. 1. ad 29.
Cl. 49 H. 3. m. 11•• dorso.
Observations on the first Writ to the Ba∣rons of the Cinque-Ports.
Cl. 22 E. 1. m. 6. dorso.
De di••••retioribus & ad laborandum poten∣tioribus—cum plena potestate pro se & tota communitate Com. praedicti, ad consulen∣dum, & cons••ntiendum pro se & communitate illa, Hiis quae Comi∣tes, Barones, & Pro∣ceres prae••icti concor∣diter ordinaverint in praemissis, &c.
The Qualifications in the Writs.
Cl. 25 E. 1. m. 6. dorso.
Cl. 22 E. 3. m. 7. dorso.
Cl. 24 E. 3. par. 2. m. 3. dorso.
No Maintainers of S••its, &c. to be cho∣••••n.
Cl. 26 E. 3. m. 14. dorso.
Cl. 31 E. 3. m. 2. dorso.
Cl. 36 E. 3. m. 16. dorso.
Cl. 44 E. 3. m. 12. dorso.
Nul home de Ley pursuont busoignes en la Courte de Roy, ne Viscount pur le Temps que il est Viscount, soient retournez, ne acceptez Chevalers des Countees, neque ves qui sont Gentz de Ley, & Vis••ounts ore retournez au Parle∣ment eient Gages. Rot. Parl. 46 E. 3. cum. 13.
Cl. 47 E. 3 m. 13 dorso. To be Knights gi••t with Swords, and skilful in Arms.
Cl. 7 R. 2. m. 32. dorso. No Banneret to be chosen.
Cl. 11 R. 2. m. 24. dorso.
A new Clause re∣called.
Cl. 5 H. 4. par. 2. m. 4. dorso. No Lawyers to be chosen.
4 Instit. p. 10.
Second Part of Brief Register, 124. Hist. Ang. p. 414.
Cl. 25 H. 6. m. 24. dorso. Only Knights, E∣squires, or Gentle∣men to be Knights of Shires.
The Modern Quali∣fications.
Du••s milit••s gla∣diis cinctos m••gis ido∣neos, & discretos—∣Cives & Burgen••es••de discretiorthus & magis sufficientibus. The Electors.
Cl. 22 E. 1. m. 6. dorso.
See below the Choice in Yorkshire.
P. 33••34.
Bundel num. 1.
Manucaptors or Pledges, that Knights elected should meet in Par∣liament.
Brief Register, part 2. p. 50.
The Statutes for or∣dering Elections.
Cl. 1 H. 5. m. 9. & 37.
Free Choice.
Return of Inden∣tures.
Who were Chusers of Burgesses.
Cl. 23 H. 6. m. 21. dorso. The Knights to be resident in the Coun∣ty, and the Electors to have at least 40 s. a year Lands.
Proclamari & in∣hiberi facias, ne ali∣qua persona tunc ibi∣dem armata, seu modo guerrino arraiata, ad electionem illam acce∣dat. Rot. Parl. 8 H. 6. m. 13. num. 18. None to come in an Hostile manner to elect.
Prynne's Brevia Parliamentaria Redi∣viva, p. 152, 153, 154. Atturneys of Noble∣men and Ladies in Yorkshire Electors.
What the Knights, Citizens, and Bur∣gesses were summo∣ned for.
Ad consulendum, & consentiendum, pro se, & communitate illa, hiis quae Comites, Barones, & Proceres praedicti concorditer ordinaverint in prae∣missis. Cl. 22. E. 1. m. 6. dorso.
Cl. 25 e. 1. m. 6. dorso.
Bundel. num. 1. Ad faci••ndum, quod tunc de Communi Con∣cili•• ordinabitur in praemissis.
Cl. 17 E. 2. m. 27. dorso.
Cl. 21 E. 3. m. 12. dorso.
Cl. 36 E. 3. m. 16. dorso.
Cl. 47 E. 3. m. 13. dorso.
Kings not confined to two Knights, &c.
Cl. 22 E. 1. m. 6. dorso.
Cl. 26 E. 3. m 14. dorso. V•• h••mines ab ista oc∣cupa••••one autump••ali∣bus quo minus possumus retrahamus.
Cl. 45 E. 3. m. 21. dorso. Ordinavimus ut laboribus par••atur, & expensis.
One Citizen, and one Burgess.
Brevia Parl. redi∣viva, p. 144. ad 147.
These things are now reduced to a certainty by the Sta∣tutes 5 R. 2. c. 4. and others. Prynne's Brief Regis••. par. 2 p. 32.
See Brief Regist. p. 118. ad 123.
Cl. 28 E. 1. m. 7. dorso.
Cl. 5 E. 2. m. 26. dorso.
The King makes new Burroughs.
Reports, p. 14, 15.
Brief Register, par. 2. p. 170.
P. 223. ad 297.
Old Burroughs dis∣continued, for what reason.
Id. p. 236.
Pat. 42 E. 3. par. 1. m. 8.
Selden's Titles of Honour, p. 730. ad 734. Coke 4. Instit. p. 44, 45.
Brev. Parl. redi∣viva, p. 240.
15 E. 3. Stat. 2. c. 6.
5 R. 2. c. 4.23 H. 6. c. 15. See more at large for this, Prynne's A∣nimadversions on Sir E. Coke's Instit. p. 32.
5 R. 2. Parl. 2. c. 5.
Sheriffs punishable that om••t summon∣ing.
C. 15.
Brev. Parl. rediv. p. 241. Sheriffs formerly took liberty what Places to send Writs to.
Membr. 4. dorso.
Knights, Citizens, and Burgesses elect∣ed at the County-Court the same day.
Brev. Parl. rediv. p. 176.
Ibid. p. 223.
How many Cities and Burroughs an∣ciently.
New Burroughs ere∣cted in several Kings Reigns.
Idem, 230.
4. Instit. p. 12.1. Inst. p. 69.2. Inst. 7, 8. Preface to ninth Report.
Archaion, p. 257.
Doderidge of the Antiquity of Parlia∣ments.
The Wages of Knights, Citizens, and Burgesses.
Ac iidem Milites moram diuturniorem quam credebant traxe∣rint ibidem, propter quod non modicas fe∣cerint expensas. Cl. 49 H. 3. m. 10. dorso.
Rot. Claus. 28 E. 1. m. 12. dorso.
Brief Parliamen∣tary Writs, part 4. p. 4.
P. 900. to 1072.
8 E. 3.
Why wages not now paid to Knights, Ci∣tizens, and Burges∣ses.
Copy of VVrits of Summons now used to the Sheriffs.
Advice of Privy Council.
Conference with Prelates, &c.
Proclamation at County-Court.
Two Knights girt with Swords, &c.
Two Citizens.
Two Burgesses.
Indifferently chosen by those present at the Proclamation, according to Sta∣tutes.
Their Names in∣serted in Indentures betwixt the Sheriff and the Electors.
To cause them to come at the Day and Place. The Knights from the County, the Ci∣tizens and Burgesses from their Cities & Burroughs, to have full power to do and consent.
Lest for want of that Power, or improvi∣dent Election, the Business be undon••.
No Sheriff to be chosen.
Election to be in full County.
The Indentures to be sealed by the She∣riff and Electors.
A Counterpart tac∣ked to the VVrit, returned into the Chancery.