The Online Library of Liberty

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• Introduction *
• The Restoration of King, Church, and Parliament
• Sovereignty In the Crown
• Parliament and the Succession to the Throne
• James Ii and the Ancient Constitution
• Revolution
• Chronology
• The Struggle For Sovereignty, Volume Ii
• Of Parliament
• Henry Vane, the Tryal of Sir Henry Vane
• Earl of Shaftesbury, Two Speeches
• Henry Scobell, Power of the Lords and Commons In Parliament
• Earl of Shaftesbury, Two Seasonable Discourses
• Earl of Shaftesbury, a Letter From a Person of Quality
• Anon, Vox Populi
• Parliament and the Succession
• Elkanah Settle, the Character of a Popish Successour
• William Cavendish, Reasons For His Majesties Passing the Bill of Exclusion
• Benjamin Thorogood, His Opinion of the Point of Succession
• Algernon Sidney, the Very Copy of a Paper Delivered to the Sheriffs
• The King’s Inalienable Prerogative
• John Brydall, the Absurdity of That New Devised State-principle
• Anon, the Arraignment of Co-ordinate-power
• Anon, the King’s Dispensing Power
• Anon, the Clergy’s Late Carriage to the King
• Revolution and Allegiance
• Gilbert Burnet, Measures of Submission to the Supream Authority
• John Wildman, Some Remarks Upon Government
• Samuel Masters, the Case of Allegiance In Our Present Circumstances
• Anon, a Friendly Conference Concerning the New Oath of Allegiance
• In the Wake of Revolution
• Zachary Taylor, Obedience and Submission to the Present Government
• William Sherlock, Their Present Majesties Government Proved to Be Throughly Settled
• Bartholomew Shower, Reasons For a New Bill of Rights

Henry Scobell, Power of the Lords and Commons in Parliament

H. S. [Henry Scobell, d. 1660]

POWER

OF THE

LORDS

AND

COMMONS

IN

PARLIAMENT

In point of

JUDICATURE

briefly discours’d.

At the Request of a Worthy Member of the House of Commons.

LONDON, Printed in the Year, 1680.

This short history of the power of Parliament from the time of the Norman Conquest and, in particular, the role of the Commons as a court is customarily attributed to Henry Scobell, clerk of Parliament during the Interregnum.

Scobell died twenty years before its publication. But if the attribution is correct in 1648 its author had been granted the clerkship of the Parliament for life. Scobell also served as censor and was therefore responsible for licensing newspapers and political pamphlets. With Oliver Cromwell’s eviction of the Rump Parliament in 1653 Scobell became assistant secretary to the Council of State and, when Oliver’s first parliament convened, he was reappointed clerk. However, he was less popular with subsequent parliaments. In 1656/57 he was replaced as clerk, and the following year the restored Rump Parliament took exception to some of his past actions. Its members ordered a bill brought in to repeal the act granting Scobell his lifetime appointmentas clerk and began to investigate his behavior during the 1650s. Scobell died in 1660.

During the 1650s Scobell had written and published a series of tracts on parliamentary methods, proceedings, and acts, some of which were republished after his death. The tract reprinted here fits into this genre. Scobell had, at least once before, signed a tract with his initials. There is no record this tract appeared during Scobell’s lifetime. It may have been a report he had composed that remained many years in manuscript. The motive of its publication in 1680 was to enhance the prestige of Parliament and the House of Commons as a court at a crucial time. Its publication coincided with the campaign to boost the status of Parliament as part of the effort to exclude the Catholic Duke of York from the succession. Two further editions of the tract appeared after the Glorious Revolution.

The Power of the Lords and Commons in Parliament, &c.

SIR,

To give you as short an account of your Desires as I can; I must crave leave to lay you, as a Foundation, the Frame or First Model of this State.

When, after the Period of the Saxon Time, Harald had advanced himself into the Royal Seat; the Great men, (to whom but lately he was no more than Equal either in Fortune or Power) disdaining this Act of Arrogancy and Ambition, called in William Duke of Normandy, (the most Active Prince of any in these Western Parts, and renowned for the Victories that he had successfully Atchieved against the French King, then the most Potent Monarch in Europe).

This Duke led along with him to this work of Glory many of the Younger Sons of the best Families of Normandy, Picardy and Flanders; who, as Voluntiers, accompanied the undertaking of this Fortunate Man.

The Usurper being Slain, and the Crown, by War, gained; to secure Certain to his Posterity what he had so Suddenly gotten, he shared out his Purchase retaining in Each County a Portion, to support the Soveraign Dignity, which was styled Demenia Regni; (now the Ancient Demesnes) and assigning to others his Adventurers such Proportions, as engaged to himself the Dependency of their Personal Service (such Lands only excepted, as, in Free Alms, were allotted to the Church). These were termed Barones Regis, or the King’s Immediate Free-holders; for the word Baro imported then no more.

As the King to These, so These to their Followers, Subdivided part of their Shares into Knights-Fees, and their Tenants were called, Barones Comitis, or the like; for we find, as in the King’s Writ, so in Theirs, Baronibus suis al François & Anglois, to their Barons, as well French as English; the Royal Gifts, for the most part, extending to whole Counties or Hundreds; an Earl being Lord of the One, and a Baron of the Inferiour Donations to Lords of Townships or Mannours.

And as the Land, so was also the Course of Judicature divided, even from the Meanest to the Highest Portion; each Several had his Court of Law, preserving still the Custom of our Ancestors the Saxons, who jura per Pagos reddebant, distributed Justice throughout each Village. And these were termed Court Barons, or the Freeholders’ Court, (twelve usually in number) who with the Thame, or Chief Lord, were Judges.

The Hundred-Court was next, where the Hundredis, or Aldermannus (Lord of the Hundred) with the chief Lord of each Township within their Limits, judged. God’s People observed This form; in the Publick Centureonis & Decam Judicabant Plebem omni tempore, Hundreds and Decennaries administering Justice to the People at all times.

The County-Court, or Generale Placitum, was the next. This was to supply the Defect, or remedy the Corruption of the Inferiour: For Ubi Curiae Dominorum probantur defecisse, pertinet ad Vice Comitem Provinciarum; where the Hundred-Court was found Defective, matters were referred to the Lord of the County. The Judges here were Comites & Barones Comitatus, qui Liberas, in hoc. Terras habeant; Earls and Barons of the County, that were Free-holders in the same.

The last and Supreme Court, and proper to our Question, was Generale Placitum apud London, the General Council at London; Universalis Synodus, the Universal Synod, in Charters of the Conquerour, Capitalis Curiae, the Capital Court; by Glanvil, Magnum & Commune Concilium coram Rege, & Magnatibus suis; the Great and Common Council before the King and his Nobles.

In the Rolls of Henry the Third, It is not Stative, but summoned by Proclamation. Ediciture Generale Placitum apud London (says the Book of Abingdon) whither Duces, Principes, Satrapre, Rectores, & Causidici ex omni parte confluxerunt ad istam Curiam, saith Glanvil, the General Assembly was called at London; whither Dukes, Princes, Peers, Rectors, and Lawyers resorted from all Quarters: And Causes were referred propter aliquam dubitationem quae emergit in Comitatu cum Comitatus nescit dijudicare; upon any Question or Difficulty which the County Court was not able to solve. Thus did Ethelweld, Bishop of Winchester, transfer his Suit against Leostine from the County ad Generale Placitum, or the General Assembly. In the time of King Etheldred, Queen Edgine against Goda, from the County appealed to King Etheldred at London, Congregatis Principibus & Sapientibus Angliae, where the Princes and Wise Men of the Land were met together. A Suit between the Bishops of Winchester and Durham, in the time of S. Edward, Coram Episcopis & Principibus Regni in praesentia Regis ventilata & finita; was handled and determined by the Bishops and Princes of the Realm in the presence of the King. In the 10th year of the Conquerour, Episcopi, Comites & Barones Regni potestate adversis Provinciis, ad Universalem Synodum, pro causis audiendis & tractandis, convocati; the Bishops, Earls and Barons of the Realm, &c. being assembled at the Universal Council to hear and determine Controversies, (says the Book of Westminster). And This continued all along in the succeeding King’s Reign, until toward the end of Henry the Third.

As this Great Court or Council, (consisting of the King and Barons) ruled the important Affairs of State, and controlled all Inferiour Courts; so were there certain Officers, whose transcendant Power seemed to be set for the circumscribing the Execution of the Prince’s Will; as the Steward, Constable, and Marshal, fixed upon Families in Fee, for many Ages. They (as Tribunes of the People, or Ephori among the Lacedemonians) growing by unmanly Courage terrible to Monarchy, fell at the feet and mercy of the King, when the daring Earl of Leicester was slain at Evesham.

This Chance, and the dear Experience Henry the Third himself had made at the Parliament at Oxford, in the fortieth year of his Reign; together with the Memory of the many straits his Father1 was driven unto, especially at Runny-Mead near Stanes; brought this King to begin what his Successors fortunately finished; in lessening the Strength and Power of his Great Lords. And this was effected by searching into the Regality they had usurped over their peculiar Soveraigns, whereby they were found to be (as the Book of St. Albans termeth them) quot Domini, tot Tyranni, how many Lords, so many Tyrants; and by weakening that Influence and Sway which they carried in the Parliaments, by commanding the Service of many Knights, Citizens, and Burgesses, to the Great Council.

Now began the frequent sending of Writs to the Commons; Their assent not only used in Money, Charge, and making Laws, (for, before, all Ordinances passed by the King and Peers) but their Consent also in Judgements of all Qualities whether Civil or Criminal. In proof whereof I will produce some few succeeding Precedents out of Record.

When Adamor (that proud Prelate of Winchester, the King’s Half Brother) had aggrieved the State by his formidable Insolence; he was banished by the joint sentence of the King, the Lords, and Commons. And this appeareth expressly, by the Letter sent to Pope Alexander the Fourth, who expostulated a Revocation of him from Exile because he was a Church-man, and so not Subject to any Censure. In This the answer is Si Dominus Rex aut Majores Regni hoc vellent (meaning his Revocation) Communitas tamen, Ipsius Ingressum in Angliam iam Nulla tenus sustineret; though the King and Lords should consent to his Revocation, yet would the Commons never allow of it. The Peers Subscribe this Answer with their Names, and Petrus de Mountford vice Locius Communitatis, as Speaker, or Proctor of the Commons.

For by that Style Sir John Tiptoft (Prolocutor) affirmeth under his Arms the Deed of Entail of the Crowns by King Henry the fourth, in the eighth year of his Reign, for all the Commons.

The Banishment of the two Spencers in the fifteenth of Edward 2d. Prelates, Comites, & Barones, & les autres Peeres de la Terre, & Communes de Royaulme, the Prelates, Earles, and Barons, and the rest of the Peers of the Realm, and Commons of the Land, do give Consent and Sentence to the Revocation and Reversement of the Former Sentence; the Lords and Commons accord; and so it is expressed in the Roll.

In the first of Edward the 3d. when Elizabeth the Widdow of Sir John de Burgo, complained in Parliament, that Hugh Spencer the Younger, Robert Boldock, and William Cliffe his Instruments had by Duresse forced her to make a Writing to the King, whereby she was despoiled of all her Inheritance; Sentence is given for her in these words; Pur ceo que avis est al Evesques, Counts, & Barons, & autres Grandes, & a tout Cominalte de la Terre, que le dit script est fait contre Ley & tout manere de Raison, si faist le dit Escript per agard del Parliament dampue alloquens al livre a la dit Elizabeth, Forasmuch as it appeareth unto the Bishops, Earls, and Barons, and all the Commonalty of the Land, that the said Writing was made against all Law and Reason, it is adjudged by Parliament, &c.

In An. 4. Edward 3. it appeareth by a Letter to the Pope, that to the Sentence given against the Earl of Kent the Commons were Parties, as well as the Lords and Peers; for the King directed their Proceedings in these words, Comitibus Magnatibus, Baronibus, & aliis de Communitate dicti Regni ad Parliamentum illud congregatis iniunximus; ut super his discernerent & judicarent, quod Rationi & Justitiae conveniret, habere prae Oculis solum Deum, qui eum concordi unanimi sententia tanquam Reum criminis laesae Majestatis morti adjudicarent eius sententia, &c. We have commanded the Earls, Peers, Barons, and others of the Commonalty of the said Realm assembled in Parliament, to determine in this matter according to Reason and Justice, having only God before their Eyes; and by an unanimous consent they have sentenced him to death, as guilty of High-Treason.

When in the 50th year of Edward 3. the Lords had pronounced the Sentence against Richard Lions otherwise than the Commons agreed, they appealed to the King, and had Redress, and the Sentence entered to their Desires.

When, in the first Year of Richard the Second, William Weston, and John Jennings, were Arraigned in Parliament for surrendering certain Forts of the King’s; the Commons were Parties to the Sentence against them given, as appeareth by a Memorandum annexed to That Record. In the first of Henry the Fourth, although the Commons referre, by Protestation, the pronouncing of the Sentence of Deposition against King Richard the Second unto the Lords; yet are they equally Interressed in it; as appeareth by the Record: For there are made Proctors, or Commissioners, for the whole Parliament, one Bishop, one Abbott, one Earl, one Baron, and two Knights (Gray and Erpingham) for the Commons. And to infer that because the Lords pronounced the Sentence, the point of Judgment should be only Theirs, were as absurd, as to conclude that no Authority was vested in any other Commissioner of Oyer and Terminer, than in the Person of that Man only that speaketh the Sentence.

In the 2d. of Henry 5. The Petition of the Commons importeth no less than a Right they had to Act and Assent to all things in Parliament; and so it is answered by the King. And had not the adjourned-Roll of the Higher-House been left to the sole Entry of the Clerk of the Upper-House, (who, either out of neglect to observe due Form, or on set purpose to obscure the Commons-Right, and to flatter the Power of those who he, immediately served, omitted them), there would have been frequent Examples of all Times to clear This doubt, and to preserve a just Interest to the Commonwealth. And how conveniently it suits with Monarchy to maintain This Form, lest others of that well-framed Body knit under one Head, should swell too Great and Monstrous, may be seen with half an Eye; it being (in my Opinion) at least equally Liable to suffer a-fresh under an Aristocracy, as a Democracy.

SIR, I am Your most humble Servant. H. S.

finis.

[1. ]Henry III was the son of King John.