Preliminary
great coun-
cils.
Pieliminaiy
pιrvy coun-
cils.
The day
fixed in a
preceding
parliament.
402 Constitutional JUstorij. [chap.
presence of the commons Iiacl come to be recognised as an
integral part of parliament, the baronial council was often
summoned alone, and, when the demand for money arose, the
commons were called in and a parliament summoned by the
regular writs. Accordingly, during the reign of Edward II,
we may, in many cases, by comparing the date of the baronial
summons to council with the date of the subsequentι summons
to parliament, infer that the day of parliament was fixed in the
meeting of the barons1. And this practice no doubt prevailed
down to the days of the Lancastrian kings ; for the French war
of Henry V was considered in a great council of notables, lords
and others, before it was discussed in parliament2. In 1386 a
great council of ‘seigneurs et autres sages,’ held at Oxford,
deliberated on the expediency of the king going to war, and by
advice of that council Richard summoned the parliament3. As
a rule however this duty belonged to the privy council or con-
tinual ordinary council of ministers. It was no doubt a matter
of some delicacy, in troubled times, to arrange the course of
business so as to avoid bringing the personal disputes of the
great lords before the assembled commons : a good example of
this will be found in the case of the council held at North-
ampton in which the business was prepared for the parliament
of 1426, when Gloucester had refused to meet Beaufort as
chancellor4. The most significant exception to this rule is the
very rare case in which the parliament itself attempted to fix
the day for the next session. The most important recorded
instance of such an event belongs to the merciless parliament of
1388, when the king was in the hands of the appellant lords
and the house of commons was entirely at their beck. Although
the privy signet ; ‘ Per breve de private sigillé,’ that the sign manual was
warrant to the privy seal under which the order was given for affixing
the great seal ; ‘Per ipoum regem et consilium,’ that the wɪit had been
issued under the joint supervision of king and council. See on the whole
history of the seals, Sir H. Nicolas, Ordinances, &c., vi. pp. cxl. sq.,
clxxxiv. &c. ; Elsynge, Ancient Method of holding Parliaments, pp. 27,
29∙ .....
1 This is sometimes stated in the writ itself circumstantially; as in
1330, Lord»’ Peport, iv. 397; and 1331, ib. p. 403: ‘de Consilio ρrae-
Iatorum et magnatum nobis assistentium.’
2 See above, p. 87. 3 Rot. Parl. iii. 2x5. 4 See above, p. 105.
XX.] Issue of Writs. 403
the proposal was couched in the form of a petition, it was
rejected by the king, and the next session was held a full month
before the day proposed1. In 1328 and 1339, however, the
day for the next session was fixed before the dissolution of tire
parliament2.
416. As soon as the day and place of session were fixed, the issue of
writs of summons were prepared in the royal chancery and
issued under the great seal. As these writs were returned to interest
the parliament itself, or later into chancery, and as copies of the'wɪʌto
them were enrolled on the close rolls at the time of issue, the
great numbers of extant copies form an important branch of
the national treasure of record. The ingenuity of legal anti-
quaries has found in them much material for interesting dis-
cussion3, which cannot be here reproduced. The essential
portion of the writs has continued to be the same throughout
the existence of parliamentary institutions, but the forms have
undergone great variations at different times, and quite as
much historical interest belongs to the variations as to the
permanent identity of the essential parts. These variations
were unquestionably the work of the king and council4, the
1 Kot. Parl. iii. 246.
2 In 1328 the day for the parliament to be held at York on July 31 was
fixed by the king with assent of the lords, at the previous parliament of
Northampton ; Lords’ Report, iv. 381. In 1339, ‘Item fait a remembrer
de Somoundre le parlement as oytaves de Seint Hiller susdit ; ’ Rot. Park
ii. io6 ; cf. p. 105 ; see also in connexion with this parliament, vol. ii. p.
400, and below, p. 411. In 1318 the place for the next parliament was
fixed in the parliament ; see above, vol. ii. p. 360, note 3.
s i Manifold rare, delightful varieties, forms, diversities, and distinct
kinds of writs of summons;’ Prynne, Register, i. p. 395.
4 Prynne argues against Coke’s statement that the form of writ could
not be altered but by act of parliament; Register, i. 396 ; ii. 161 ; and
has also some important remarks on the right to demand a writ; Coke
argues that the writ is issued i ex debito justitiae,’ Prynne that it is
altogether in the royal power, and of the class of ‘magistralia, ’ not ‘ brevia
formata sub suis casibus.’ But the question is one of a ∖ery technical
character, although it has a bearing on rights of peerage. Bracton, lib.
5. f. 413, divides ‘ Brevia originalia’ into several classes ; first, ‘quaedam
sunt formata sub suis casibus et de cursu et de communi concilio totius
regni concessa et approbata, quae quidem nullatenus mutari poterint
absque consensu et Voluntate eorum others are t judicialia, ’ which vary
according to the suits in which they are used ; a third class, t magistralia ’
which often vary t secundum varietatem casuum et querelarum a fourth
are ‘personalia,’ and a fifth ‘mixta.’
υ d 2