William Stubbs.

The constitutional history of England in its origin and development, Volume 3 online

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attend, 'vobis mandamus in fide et dilectione quibus nobis tene-
mini,' and a description of the function which he is to discharge
Hractaturi vestromque consilium impensurL' Finally the prae-
munientes clause directs the bishop to warn the clergy of his
diocese to appear, the deans and archdeacons in person and the
minor clergy by their proctors, on the same occasion, to do or con-
sent to the things which may then and there be determined.
The caiiBe It is on the varpng of these few expressions that all the dis-
stated S°°* tinctive interest of the writs of the prelates depends. The first
the wnt. ^jiause admits of infinite but non-essential variation ; and is con-
tinually changed. The highest note is struck when Edward I
reminds the bishops that what touches all should be approved
by all ^ ; or when that great king and hb successors fix)m time
to time explain that the enemy is bent on destroying the English
tongue from off the fetce of the earth \ The barest matter of £&ct
is touched when the form becomes ' quia de advisamento consilii
nostri pro quibusdam arduis et urgentibus negotiis, nos statum
et defeusionem regni nostri Angliae et ecdesiae Anglicanae
contingentibus, quoddam parliamentum nostrum tenere ordina-
vimus.' The changes however are not essential and touch no
constitutional point.
The position The sccond point is important; the king's intention is to
cfteru. deliberate with the other prelates and magnates of the king-
dom, 'cum ceteris praelatis, magnatibus et proceribus*; the
writ of the temporal lords runs ' cum praelatis, et ceteris mag-
natibus et proceribus,' and that of the judges or additional

' See vol. ii. p. 128; Select Charters, p. 474.

* See the writs of 23 Edw. I, 7 Rich. II; Lords' Report, iv. 67, 706 ; of.
Rot. Pari. ii. 150.



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XX.] Writs of the Lords. 393

counsellors omits the word 'ceteris' and frequently inserts Judges not
the clause ' cum ceteris de consilio nostro.' The omission of the parliament.
word ' ceteris ' has the great legal force of excluding the judges
from claiming the position of peers of parliament. The difference
of its position in the writs of the lords spiritual may be construed
as placing their right as members of the lords' house upon a
different footing from that of the temporal lords, but this is not
a necessary or probable inference.

The third point of importance is the regular use of the words The words
* fide et dilectione ' in the writs of the prelates ^; the correspond- dUectione'
ing form in the writ of the lords temporal is ' fide et homagio/ of the writs
or ' homagio et ligeantia.' The former expression is sometimes prelates,
used in the lay writs, but the latter is never used to ecclesi-
astics : the force of the distinction lying in the fact that the
bishops as bishops did not do homage, and the abbots shared
the benefit of the immunity ^ This point has some further
importance in relation to the writs of the lords temporal.

The fourth point, the use of the words Hractaturi et con- Theftmction
silium yestrum impensuri ' marks the theoretical position of the tractaturi,
upper house and its attendant judges : they are counsellors
preeminently ; no such words occur in the writs under which
the representative members are elected.

Lastly the praemunientes clause, which of course occurs only

^ On the importance of the expression 'fide et dilectione' see Prynne,
Reg. i. 194, 195, 206-308. It is difficult to draw any distinct inference
from the use of the words ' dilectione ' and ' homagio ' under Edward I; for
occasionally both terms are used in writs of the same character ; it seems,
however, clear that after the great quarrel with the earls in 1397 the king
never simimoned the temponU lords to parliameTU 'in fide et dilectione/
but always ' in fide et homagio * : in 1 3^5, 1 396, and 1 397, he uses the former
expression; in 1398 he omits the adjuration altogether, and in 1399 and
onwards uses the sterner form. See the writs of those years in the Lords*
Report and the Parliamentary Writs. ' Fide et homagio/ thus became the
regular form ; and in 1317 the difference is specially noted in the Close
Rolls, where the two sets of writs are described as identical so fieur ; ' ex-
cepto hoc quod ubi didtur in fide et dilectione, ibi dioetur in fide et
homagio'; Pari. Writs, II. i. 171. It is just possible to draw from the
military writs a further inference ; in 1 394 John Balliol is cited ' in fide
et homagio/ to send his service of armed men to Portsmouth, June 35 ; on
June 39 he is desired ' in fide et dilectione * to send some of them with the
king to France ; here the former expression may imply the feudal duty,
and the latter the general bond of fealty : but this will not apply in sdl
cases ; ParL Writs, i. 361. * See above, vol. i. p. 387 ; and iii. p. 396,



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394



Constitutional History,



[chap.



The prae- in the writs of the bishops, directs the attendance of the bene-
ciauM. ficed clergy, and defines their function : from the twenty-eighth
year of Edward I to the year 1340, they are genendly, but. not
invariably, summoned like the commons ' ad faciendum et con-
sentiendum'; from 1340 generally, and from the first year of
Richard II invariably, *ad consentiendum' only^; the meaning
of the word 'faciendum' here must be ruled by its interpre-
tation in the writs to the sherifis for the election of knights
of the shire. It would seem that the summons ' ad faciendum '
was withdrawn from the moment that the king despaired of
prevailing on the clergy to vote money in parliament in-
Write to the stead of convocation. When a bishopric was vacant the writ
^u4^a£ ^ which would ordinarily be directed to the bishop was frequently
M^^ ishops jyj^j,.^g^ ^ j^Q guardian of the spiritualities of the see, or, if a
bishop had been elected and not completely invested or conse-
crated, to him as bishop elect ; when the bishop was abroad the
writ was directed to his vicar-general \ The writs of the abbots
and priors correspond with those of the bishops in all other
points, but omit the praemunientes clause.

The writs of the lords temporal dififer from those of the
bishops, in the change of the position of the word 'ceteris,' in the
omission of anything corresponding with the praemunientes
clause, and in the use of the form 'fide et homagio,' 'fide et
ligeantia,' or 'homagio et ligeantia.' The difference between
these expressions has been understood to indicate some difference
between the barony by tenure, of which the homage would be
a more distinct feature, and the barony by writ, where the oath
of allegiance would take the place of the form of homage. But
the words are used with so little discrimination that no such
conclusion can be with any probability drawn from them; and the



Writs of
the lords
temporaL



ThefDrm

fideet

homoffk).



^ In 1 37 1 they are smnmoned * ad consulendum et consentiendum* ; Lords*
Beports, iv. 647. It is oertaixdy a signifioant coinddeDce that the word
' faciendum ' should be withdrawn just when the king ceased to send bis
second letter to the archbishops ordering the enforcement of the summons.
See above, p. 330.

' Specimens of the writ to the gruardians of the spiritualities may be seen
in Pari. Writs, I. 25, 47, 137 ; II. i. i«;5 ; Prynne, Register, i. 152, 153 ; and
to bishops elect, Pari. Writs, I. 20, 47; to the vicars general. Lords*
Beports, iv. 500, 501.



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XX.] Writs of tie Judges. 395

words homage and allegiance are in this collocation synonymous

or redundant ^

418. The writs of the judges and counsellors' correspond so Summons

very closely with those of the barons that it would seem almost judges.

an afterthought to exclude them from equality in debate. The

variations already noticed, the omission of the word 'ceteris,'

the introduction of 'ceterisque de consilio nostro,' and the

absence of the injunction ' fide et homagio ' are interpreted as

having that effect.

All these writs are tested by the kinir himself, and issued Attestation

of the writs,
under the great seal. The note ' per breve de privato sigillo ' is

frequently attached to the copy on the close roll, signifying that
the great seal had been attached in compliance with a writ of
privy seal ordering it to be done. The form * per ipsum regem '
denotes that the warrant has been issued under the sign manual
and the royal signet. The later note ' per ipsum regem et con-
silium,' which appears occasionally in the writs of Edward II
and very frequently after the accession of Edward III, has the

^ See Piynne, Beg. i. p. 206 ; Coke, 4th Inst. p. 5. An examination of
the writs shows that Edward I occasionally used the form * en la foi et en
la ligeaunce/ ParL Writs, I. 317 ; but that Edward III introduced it into
common use in writs of summons to both councils and parliaments : some-
times he uses both words, ' fide, homagio et ligeantia ' ; Lords' Report,
pp. 594, 599 : but no conclusion can be drawn as to the ^mrpose of the
change : from 1354 onwiu*ds the two words are used indiscnminatelj, and
from the accession of Eichard II 'ligeantia' is the regular word.

* See ParL Writs, II. L 42 ; Prynne, Reg. i. pp. 341 sq., 361 sq., 365.
In several cases, if the Close Rolls are to be trusted, the writs to the justices
are identical with those to the lords ; but these may be accidental errors.
Occasionally, when the counsellor cited is a clergyman, * in fide et dUec-
tione ' is used, as in 131 1, to Robert Pickering ; but generally the clause is
omitted. A specimen of the form is subjoined ; it is the writ correspond-
ing with that to the archbishop, given above, p. 391 : *Rex dilecto et fideU
suo Willelmo Hankeforde capitali justitiario suo salutem. Quia &;c. ut
supra usque ibi tractatum, et tune He : vobis mandamus firmiter iniun-
gentes quod omnibus aliis praetermissis dictis die et loco personauter
intendtis nobiscum ac cum ceteris de consilio nostro super dictis negotiis
tractaturi yestrumque consilium impensuri : et hoc nullatenus omittatis * ;
Lords* Report, ir. 839. Here the omission of the word * ceteris ' is not
noted. But the writ to William de Shareshull in 1357 contains the words
*vobi8cum et cum prelatis, magnatibus, et proceribus dicti regni nostri
Angliae ac aliis de consilio nostro '; ib. p. 615. It should be said that the
writs to councils vary more than those to parliament; the judges being
occasionally summoned 'in fide et ligeantia,' and in other points being
placed on a level with the lords.



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39^ Constitutional History, [chap.

same force, denoting that the privy seal writ had issued after
deliberation in the privy council ^. This feature belongs to all
Writs of the parliamentary writs alike. The writs addressed to the
a great prelates, barons, and counsellors ordering them to attend in a
great council are worded in language very similar to that of the
writs of parliament ; but they express the king*8 intention of
holding a council, ' consilium ' or ' tractatum,' not a parliament ;
the writs to the bishops omit the praemunientes clause, and
there are no writs to the sheriffs. Some doubt may occasionally
arise so long as the word 'colloquium' is used for both parlia-
ment and council, although that word is properly equivalent to
* parliamentum' : the word * parliamentum ' is however used most
frequently from the latter years of Edward I, and exclusively
after the first year of Edward III.
Writs ad- 419. The writs to the sheriflfs, ordering the election of repre-

dressed to . ,

thesheriflh. sentatives of the commons, correspond with the writs of the
lords only so far as concerns the recital of the cause of summons,
and in earlier writs tlus is frequently abbreviated. After de-
claring the occasion of meeting and the king's intention of
treating with the prelates, magnates, and 'proceres,' no share
in the deliberative function being assigned to any other persons,
the writ proceeds to order the election of knights, citizens, and
burgesses, who are to have full and sufficient power, on behalf of
their constituencies, to consent to and to do what by Good's favour
may be determined by the common counsel of the kingdom, on
the matter premised *. The sheriff is himself to bring up the

^ See above, p. 388, note 2. In the parliament of Coventry held in 1459,
a petition was presented on behalf of the sherifis who had returned mem-
beni under privy seal writs ; the king was asked to declare the elections
valid, and discharge the sherifib from blame; and this was done. See
Prynne, Reg. ii. 141 ; Rot. ParL v. 367. The writs are indeed given in
the regular form in the Lords' Report, iv. 940, 945 ; but in the act of 1460,
which repealed the acts of the parliament of Coventry, it is alleged, as one
of the reasons of the invalidity of those acts, that the memb^ were re-
turned, some of them without any due or free election, others without any
election at all, against the course of the king^s laws and the liberties of the
commons of this realm, by virtue of the king*s letters of privy seal without
any due election ; Rot. Pari. v. 374 ; Prynne, Reg. i. 14a.

' * Ita quod iidem milites plenam et sufficientem potestatem pro se et
oommunitate comitatus praedicti, et dicti cives et burgenses pro se et com-
munitatibus civitatum et burgorum praedictorum, divisim ab ipsis habeant



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XX.] Writs of tie Knights. 397

names of the persons chosen and the writ, until by the statute How the
of Henry IV in 1406 the indenture tacked to the writ is declared to be made,
to be the sheriff's return, and is ordered to be sent into chancery.
Such is the essential form of the writ ; the many important varia-
tions in detail, touching the status of the persons to be chosen
and the process of election, are valuable indications of political
and social history. They must be taken in chronological order.
The changes in the clauses which describe the character of
the persons eligible as knights of the shire begin very early. Variations
The first form, that of 1290, 1294, and 1295*, prescribes the ^tescribSS^
election to be made * de discretioribus et ad laborandum poten- to beeScted
tioribus';' the form is varied in 1302, the words being 'de^J^Jh^**'
discretioribus ipsius comitatus',' and in 1306 the clause direct-
ing the election of burgesses runs * et de quolibet burgo duos
burgenses vel unum secundum quod burgus fuerit major vel
minor*.' Both these variations were temporary; the older form
is resumed and observed down to 1324, when Edward II, ap-
parently despairing of getting a parliament together, and having
in 1322 been obliged to receive valetti or esquires instead of
knights of the shire for several counties, dispensed with the de-
mand for discreet and able knights by adding 'sen aliis, de
comitatu tuo assensu et arbitrio hominum ejusdem comitatus
nominandos*^.' As however he omitted the summons for the

ad fikdendum et consentiendum hiis quae tunc ibidem de communi consilio
regni nostri favente Domino ordinari contigerit super n^^tiis antedictis ' ;
Lords* Report, iv. 786.

' Pari. Writs, i. 21. 35, 39, 48, &c.

* In 1 397 the description is * de probioribus et legalioribus ' ; this meeting
however was not, strictly speaking, a parliament, but the council to which
the knkrhts were called to receive the copies of the confirmed charters.
Pari. Writs, i. 56.

' ParL Writs, i. 1 15 : in 1305, ' de discretioribus et ad laborandum poten-
tioribus' ; ib. p. 138. * Pari. Writs, i. 182, 183.

* In 131 1 the sheriff of Rutland sends two 'homines,' having no
knights; Pari. Writs, ii. i, 51. In 1323 Worcestershire returned a
valettus, who received only 38. for his expenses; ib. ii. i, 377: Devon
returned one, Middlesex, Hereford and Leicester two; ib. 378. In 1324
all are called milites ; ib. 313. In 1324 the summons to Uie barons is
'in fide et dileotione,* and 'sen aliis' is in the Sheriffs' Writs, II. i. 317;
in the returns for Herefordshire it is specified that the persons elected are
not knights ; Lincolnshire returns a ' seijaunt ' ; the number of belted
knights made out by Prynne belongs to the parliament of 1335 ; ib. pp.
34^t 547 'i when the persons not knighted have only 39. a day.



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398 Constitutional History. [chap-

^^^P^ *o clergy and borough members altogether, this writ cannot
«*«ction (rf he regarded as a writ of parliament. In the next parlia-
ment, that of 1325, only twenty-seven of the knights of the
shire were belted knights. The writs for the parliament of
Northampton in 1328 forbad the attendance of members with
a multitude of armed retainers^; and an additional writ
in 1330 enjoined on the sheriff to obtain the election of
persons not suspected of legal malpractices: 'deux des plus
leaux et plus suffisauns chivalers ou serjauntz de meisme le
countee qui soient mie suspicionous de male coveigne, ne com-
munes meintenours des parties'.' This was with a view to the
next parliament, in which Mortimer was condemned. Although
the result was satisfactory for the moment, and no change in the
writ was required for some years, abuses had already begun to
creep in, and in 1339 the commons, declaring that they could not
assent to the proposed grant without having recourse to their
constituencies, asked for a new election in which the sheriff
should be told ' que deux de mielx vanez chivalers des contez ' '
should be chosen, and the sheriffs and other servants of the
crown should be excluded. Thb proposition was accepted ; and
in the writs for the next parliament the king, after remarking
that the perfunctory transaction of the elections has been a
serious hindrance to business, enjoins the election of two knights
girt with swords, for the county, and two burgesses for each
borough, ' de discretioribus et probioribus militibus, dvibus et
burgensibus comitatus civitatum et burgorum et ad laborandum
An order potentioribus *.' The sherifib are not however yet excluded,
kniffhtoto ^^ enforcement of knighthood as a qualification for election
be choeeD. gggmg to have caused a difficulty ; the words * gladiis cinctos * '
occur in the writs for March 1340, but are omitted after that
parliament, although the rest of the formula is retained. In
1342 the qualifications of the candidates are indicated by the
words 'de discretioribus et legalioribus*'; in 1343 'probioribos'

• LordB* Report, iv. 383 ; Prynne, Reg. ii. 79, 80.

• PrynDe, Reg. ii. 85, 86; see above, voL ii. p. 619. Rot. ParL IL 443.
» Rot. ParL ii. 104.

• Lords' Report, iv. 509 ; Prynne, Reg, ii. 88, 89.

• Lords' Report, iv. 517 ; Prynne, Reg. ii. 90.

• Lords' Report, iv. 543.



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XX.] Writs of the Knights. 399

recurs *• In 1347 occurs the curious and important notice thatyamtions^
the king does not call the parliament with the intention of im- oj***®
posing aids or tallages, but that justice may be done to the
people*; a very necessary undertaking at a moment when the
king's recent proceedings had shaken public confidence. The
assurance does not seem to have been satisfactory ; at all events
the parliament which met was not sufficiently pliable ; and the
writ for the next year orders the election to be made * de ap-
tioribus discretioribus et magis fide dignis'; the knights are
again to be belted knights, ' gladio cinctos et ordinem militarem
habentes et non alios* ; and the sheriff is warned that he is so to
conduct the election as not to risk being regarded as a hinderer
of the king's business '. In 1 350 the writ issued for the par-
liament of 1 35 1 reveals a new difficulty: it was impossible to
secure the election of belted knights, but honest and peaceful
country gentlemen might be hoped for; the king accordingly Haintainen
directs that such persons shall be chosen as are not pleaders or an not to
maintainers of quarrels, or men who live by such gains, but men
of worth and good faith, and lovers of the public good. This
form is observed until the year 1355V In the meantime two
great councils were held, the writs for which are exceptionally
worded; in 1352 the sheriff is to return one knight *de provec-
tioribus discretioribus et magis expertis *,' the number being re-
duced that the work of harvest may not be impeded; in 1 353 • one
belted knight of the same qualifications is to be returned. The
regular order of parliaments, which had been interrupted by the
plague, was resumed in 1355, and the writs omit the caution
against maintainers and restore the clause ordering the return of
belted knights; in 1356 both these are omitted, but the counties
are warned that no one legally elected will be excused ^; in 1357
the belted knights are again asked for, and both knights and

^ Lords' Bepcnrt, iv. 547.

* Lords* Report, iv. 573. 575 ; Prynne, Reg. ii. 90.

* Lords' Report, iv. 580, 583 j Piynne, Reg. ii 91.

* Lords* Report, iv. 590, 593, 603, 605 ; Prynne, B^g. ii. 9a.

* Lords' Report, vr, 595 ; Prynne, R^. ii. 9a, 93.

* Lords' Report, iv. 600.
^ Lords* R^Hirt, iv. 608.

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400



Constitutional History.



[chap.



Qoalifica-
tioiu of the
knights in-
sisted on.



Lawyers
and 8heri£b
not to be
chosen.



Petition of
1376.



burgesses are to be chosen * de elegantioribus personis *.' Be-
tween 1356 and 1 37 1 the variations are unimportant; one writ
for 1360 retains the warning against improvident elections, and
another directs that the knights shall be chosen in Ml county
court'; in 1362 the demand is for the choice of men ^de
melioribus validioribus et discretioribus ',' varied in 1364 to
* valentioribus *.' This qualification is in 1370 expanded still
further; the knights are to be belted knights and more approved
by feats of arms, circumspect and discreet*. In 1372 was
issued the parliamentary ordinance * forbidding the election of
lawyers and excluding the sherifPs from candidature. In con-
formity with this rule the writs of 1373 are very explicit, but
the lawyers are not specifically excluded : the knights of the
shire are to be belted knights or squires, worthier and more
honest and more expert in feats of arms, and discreet, and
of no other condition; the citizens and buigesses are to be
chosen from the more discreet and more sufficient of the class
who have practical acquaintance with seamanship and the follow-
ing of merchandise ; no sherifi* or person of any other condition
than that specified may be chosen '. The' form does not seem to
have been approved. Two years later the simpler rule* pre-
scribing ' duos milites gladiis cinctos magis idoneos et discretes '
appears ; the prohibition of the sheriff continues to be a part of
the writ. Yet in the Good Parliament half the county members
were squires unknighted. The petition of 1376 that the knights
may be chosen by common election of the better folk of the
shire, and not merely nominated by the sheriff without due
election, was set aside by the king ; but the request seems to
have been regarded as a warning to the crown not to tamper
with the elections. Under Richard II the direction to elect in



> Lords' Report, iv. 616 ; Prynne, Beg. ii. 99 : this writ also directed
the members to be present personally on the first day of the parliament.
■ Lords' Report, iv. 623, 626 ; Prynne, Reg. ii. loo.

* Lords' Report, iv. 632 ; P^ne, R^. ii. loi.

* Lords' Report, iv. 638, 641, 643, 646 ; Prynne, R^, ii 102.

* Lords* Report, iv. 648 ; Prynne, Reg. ii. 106.

* See above, vol. ii. 425.

* Lords' Report, iv. 661 ; Prynne, Reg. ii. 114, 115.

* Lords' Report, iv. 664, 667 ; Prynne, Reg. ii. 116.



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XX.] Writs for Elections. 401

full county court and by assent of the same was always inserted. Variations

_ becx>me less

Although John of Gaunt was able the next year to pack the flrequeut.

parliament with his own adherents, it is a long time before any
new variation occurs in the writs. From the year 1376 on-
wards the sheriffs are directed to cause to be elected *duos
milites gladiis cinctos magis idoneos et discretos' and for the
towns two members ' de discretioribus et magis sufficientibus.'
In one writ of 1381 the old form is reverted to^; in 1382 the
knights to be returned are to be either the same as attended the
last parliament, or others ; a hint perhaps to return the same';
in 1387 Richard's unlucky attempt to secure men *in moderuis
debatis magis indifferentes^' was summarily defeated; and the
following year the clause inserted in 1 373, forbidding the election
of persons of any other condition than that specified, was per-



Online LibraryWilliam StubbsThe constitutional history of England in its origin and development, Volume 3 → online text (page 41 of 68)