The constitution of parliaments in England deduced from the time of King Edward the Second, illustrated by King Charles the Second in his Parliament summon'd the 18 of February 1660/1, and dissolved the 24 of January 1678/9 : with an appendix of its sessions / observed by Sr. John Pettus ... Knight.

Observations on the Exemplar and its Consimilars.

I Did think to have made distinct Ob∣servations on this and the following Consimilars, but finding how curiously they, in their Jurisdictions, Power, Au∣thorities, and Operations are intermix'd, separated, and yet united, I shall speak of them as they spring up from my Recolle∣ctions, on which others may graft more, as best suiting to theirs.

1. Neither this chief Assistant, nor any of the following Assistants (which are call'd Consimilars in the Pawns) are men∣tion'd in the Kings Warrant to the Lord Chancellor for summoning a Parliament, otherwise than in these words:

Wherefore We Will and Command you forthwith, upon receipt hereof, and by war∣rant of the same, to cause such and so many Writs to be made and seal'd under our great Seal, for the accomplishment of the same, as in like cases hath been us'd and accustom'd, as may be seen in the first Chapter.

And thereupon the Lord Chancellor (according to the ancient Custom, and such Precedents as I have and shall set down) sends his Warrant to the Clerks of the Pettibag (in haec verba) as in the first Chapter.

You are hereby required forthwith to pre∣pare for the great Seal of England the se∣veral Writs of Summons for the Lords Spiritual and Temporal, as also for the Judges and others, to appear at the Parlia∣ment to be holden, &c. in such method and form, and directed to such persons as are and have been usual in such cases, &c.

Now that the Lord Chief Justice (and the Consimilars, of which I am to speak) have been anciently and usually summon'd, I have and shall shew in their following order.

2. In the Act of Precedency there is no mention made of the Places of these As∣sistants, but there having never been any dispute among themselves of their Places or Precedencies (for they are perfect in their own Regularities and Seniorities, &c.) it had been but expense of time and Paper to insert them, and therefore ac∣cording to the constant order by which they have sat anciently in the Lords House

I shall treat distinctly of them, so soon as I have ruin through some few mix'd Obser∣vations.

3. This great Minister of Justice was anciently made by Letters Patents, with the Clause of Quam diu nobis placuerit, and so it continued till about the end of Henry the Third, and then, and ever since, he hath not been constituted by Commis∣sion or Patent, (as all the other Judges are) but by Writ only, in this form.

Rex, &c. R. F. Militi salutem Sciatis quod constituimus vos Justitiarium nostrum Capitalem ad placita coram nobis tenend'durante bene placito, &c. Teste, &c. And this Writ makes him capable of his Par∣liament-Writ before recited.

4. The Lord Chancellor or Lord Keeper of the Great Seal (as I said) is admitted Chancellor or Keeper by delivery only of the Great Seal to him, and taking his Oath, without Patent or Writ; but this Lord Chief Justice is admitted to his Of∣fice by Writ only, and all the other As∣sistants (of whom I shall speak) do injoy their Offices in their respective Courts by Patent only, and all of them durante bene placito (except the Master of the Rolls, whose Patent is durante vitâ) as will be shewn.

5. But neither the delivery of the Great Seal to the Lord Chancellor, or Lord Keeper, nor the aforesaid Official Writ to the Lord Chief Justice of the Kings Bench, nor the respective Patents by which the other Justices enjoy their respective Offi∣ces, do intitle them to sit in the Lords House, without such an especial Parlia∣ment Writ of Assistance, as is shewn in the Exemplar before recited, (to which all the other Assisting Writs have a Con∣similitude.)

5. This Parliament, or Assisting Exem∣plar Writ to the Lord Chief Justice of the Kings Bench, and all the Consimilars to it (mutato nomine & titulo Officii) agrees in all parts with the Writ to the Lord Chancellor, (as I have before shewn) except the alteration of the words, Prae∣dilecto & perquam Fideli, into Dilecto & Fideli, which are in this and in all the Writs to the following Assistants.

6. The differences between this Writ and that to the Hereditary Lords in Par∣liament, are partly shewn in the Observa∣tions on the Lord Chancellors Writ, the rest will be shewn.

7. This Parliament writ diffeers but in few words from the form of the writ issued in the 15th. of Edw. 2d. (from whence I take my rise (nor from the

Successive Writs to this time) which for the satisfaction of others, (whereby they may see that no new form is obtruded on them) I have set here down Verbatim.

Rex Dilecto & Fideli suo Willielmo de Bereford salutem Quia super diversis & arduis negotiis nos & statum Regni nostri specialiter tangentibus in instante Parlia∣mento nostro die Domincâ prox' futur' ante Festum sancti Laurencii prox' futur' feci∣mus summoneri, vobiscum & cum caeteris de Concilio nostro colloquium habere volumus, & tractatum, vobis mandamus firmiter in∣jungentes quod omnibus aliis pretermissis dictis die & loco personaliter intersitis no∣biscum, & cum ceteris de Consilio nostro super premissis tractatur' vestrumque Con∣silium impensuri Et hoc nullatenus omit∣tat' Teste, &c.

In this Writ the words after Regni no∣stri, (viz. & Ecclesiae Anglicanae are omit∣ted;) for the Church in those days was almost wholly manag'd by Ecclesiastick Persons, who were Conversant in the Civil, and Canon Laws, &c. but in the 26th. of Henry the Eighth, when the power of the Pope was here abridg'd, those words, & Ecclesiae Anglicanae were entred and continued to this day.

Also after the word Vobiscum these words, ac cum Praelatis Magnatibus & Pro∣ceribus are omitted; but (as near as I can collect) some of the most eminent of the Professors of the Law, (as the Lord Chief Justice, and Lord Chief Ba∣ron, &c.) were sometimes Summon'd by Peeral Writs, that is by such Writs that were sent to the Nobles, and then the words ac cum Praelatis, &c. (as in Richard the Seconds time to Jo. Cavendish Capital'Justic'; and in Henry the Fifths time, to William Hanckford and many more) were inserted; but when ever they were Sum∣mon'd meerly as Assistants, the words cum Praelatis, &c. were left out, and so have been ever since Edward the Fourths time.

8. This Parliament Writ is directed, Capitali Justitiario nostro ad placita, &c. and so is his Writ by which he enjoys that great Office, yet his common and general appelation is, Capitali Justitiario Angliae, which we call Lord Chief Justice of Eng∣land, and sometimes, Lord Chief Justice of the Kings Bench, and by some one of those Titles; he is called so in several Acts of Parliament, and ancient Records; (as I have hinted) and though the word Lord be added to his appellation, both in his Assistancies and Office, (and so to some

other of the Assistants) yet neither he nor they are to be counted Lords of Par∣liament; for his Writ by which he enjoys his Office (which is the Inducement to his Assisting Writ) is but durante Placito, (& honore Officii) and his Assistance be∣ing but durante Parliamento, neither of them can six the Title further than the continuance of his Office or Assistance.

And here it may be observed, that the word Vos (a word of great eminency, al∣ways signifying a plural, though some∣times apply'd to a single Person) is us'd in this Official Writ (before mentioned) to the this Lord Chief Justice, but is not in his Parliament Writ, nor in any of the Patents or Parliament-Writs to the o∣ther Justices, of whom I shall speak in order.

9. The antiquity of this great Minister of Justice, and his Court, is doubtless more ancient (under various Titles) than from Hen. the Thirds time; (from whence we vulgarly compute it,) for the Civilians do acknowledge that, Justitiarii sunt umbrae quaedam illorum qui olim 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 apud Graecos dicebantur, designati ad Cu∣stodiam Juris & aequitatis. However, Sir Edward Coke to prove its antiquity, tells us of an Epitaph in Ramsy Abby, ingraven on Stone in these words, Alvinus incliti

Regis Edgari Cognatus, totius Angliae Aldermannus, (saith, that by Aldermannus is meant, Capitalis Justitiarius Angliae, and consequently his Assistance in all Coun∣cils before the name of Parliament, (and since that name) hath always been e∣steem'd necessary, and (as he saith) all these Courts of Justice are so ancient, that they seem to have their Originals from Custom, rather than by Commission.

10. His Jurisdiction is so great, as well out of Parliament as in Parliament, that often times the Lords do wave their own Power and Priviledges of using their own Officers, and do direct the Chief Ju∣stice to send out his single Warrant to Seize on Persons in case of Treason, or Suspi∣cion of it, or for other high Crimes or Misdemeanors; and the House of Commons have likewise sent to him to come to their House upon the like occasions, as happen∣ed when by their directions his Lordship sent out Warrants to Seize the five Lords, of whom I shall speak in the Chapter of Tryals.

11. Other uses are also made of him, and some other of the Assistants in Parlia∣ment; for when the Lords have any matter of importance to impart to the House of Commons, then the Lord Chief Justice with the other Chief Justice, or Lord Chief

Baron, or some other of the Judges (but always one of them, and no more) is joyn'd with him in delivering the same; but in matters of less importance, two Masters of Chancery are imployed (as will be shewn.)

12. When any Writs of Error, or Writs of Habeas Corpus, or Tryals of Peers, or when any Pleas of the Crown, or other cases Criminal, Civil, and sometimes Ec∣clesiastick, or indeed any matters of Law are to be heard and determin'd in Parlia∣ment; as also in the penning of new, and altering, explaining or repealing of former Statutes, their assistances are required, and more especially the Chief Justice.

13. The number of Assistants Sum∣mon'd by Writ to appear in Parliament, (Cum caeteris de Consilio) from the time of Henry the Third, to the 21. of Henry the Eighth, consisted of an uncertain number, sometimes above fourty, some∣times under; but from the 21 of Henry the Eighth, (from which time the extant Pawns do give an exact account of them) they never exceeded 27. and sometimes were not above 13. or 14. But in all Par∣liaments since Edw. the Firsts time, some of them were Summon'd, and very likely before; For Mr. Prin, (though in his Breviary of Parliament Writs, pag. 36. he

tells us of Twenty four Parliaments, (from the 49. of Hen. the Third, to the 49. of Edw. the Third) and many more which he saith he omits; of which Parliaments, he saith, there is no mention of Writs of Summons to any of the Kings Council, Justices, Officers, or others in the Rolls of these Parliaments; yet he kindly as∣cribes it to the negligence or slothfulness of Clerks, in omitting the entries of their Writs. This he saith, but he had done much better for his own justification and others satisfaction, (being intrusted by his Majesty with the Records of the Tower) if those Records which he cites, (both in his Breviary, and many others montion'd by him in Sir Robert Cottons Abridgment) now wanting, might have been restored by him to their ancient Re∣positories there.

14. As to the Lord Chief Justice, and the Assistants Places in the Lords House, none of them, as I have said, have their Places there by the Act of Precedency's, but rather by custom and favour; of which I shall speak more, when I come to the actual Sitting of the Parliament, as also of their Priviledges and Employ∣ments there.

15. As to the Officers which are under the Lord Chief Justice his Jurisdiction,

none of them are imployed about the Summoning of a Parliament, but many of them are imployed in other matters in time of Parliaments, as in cases of Errors, &c. but more chiefly upon Tryals of Peers, (when only the chief Clerk of the Crown in the Kings Bench is the principal Mana∣ger of them) as will be shewn.

16. Regularly no Officer or Court, either in Parliament or out of Parliament, have greater Power or Jurisdiction, or more publick affairs to manage; (except the Lord Chancellor in Chancery) and yet in some cases above it: For all appeals from the Chancery and other Courts, are determin'd in this Court, and no appeal from this Court, but to the High Court of Parliament, and all Records which are brought from other Courts into this, are never return'd back into those Courts from whence they were brought, and many others which might be instanc't.

17. To conclude, his Lordship, or the other Lord Chief Justice, or one of them, are constantly appointed to be Speaker of the House of Lords, Pro tempore, when the Lord Chancellor or Lord Keeper is absent, which is usually done by a par∣ticular Writ, which I shall enter amongst emergent Writs, Chap. 14.

Thus having said as much as I think con∣venient concerning this Exemplar, with some intermixtures of some of the Con∣similars, I proceed to give a short touch of each of the Consimilars more distinctly; and first of the Master of the Rolls.