| Date: 28 April 2011, 04:39
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Judicature in Parlement
By Elsyng
* Publisher: Hambledon & London
* Number Of Pages: 150
* Publication Date: 2003-08-02
* ISBN-10 / ASIN: 1852850388
* ISBN-13 / EAN: 9781852850388
Product Description:
An edition of Henry Elsyng's early seventeenth-century treatise on how to conduct the business of parliament.
CONTENTS
Abbreviations and Short Titles vii
Introduction xi
Editorial Note and Acknowledgements xv
National Library of Wales Manuscript I7026D I
The Table 3
Judicature in Parlement 7
1. The Accusacion 12
2. The parties Aunswere 53
3. The Replicacion 64
4. The Proofe 70
5. The Judgement 78
6. The Execucion 106
Appendix: The Aunswere in
Index of Precedents 115
General Index 119
INTRODUCTION
IN 1624, Henry Elsyng, clerk of the parliaments, undertook to gather
together materials concerning the manner of holding parliaments in
England, for mine owne instruction and learninge, with noe intent to
publishe the same unto any.’ He finished the eight chapters of his firste
Booke’ in 1625. After his death, it was printed in 1660 and reappeared in
various later editions. Parliament was a popular subject. In the eighteenth
century, Thomas Tyrwhitt came upon Elsyng's holograph manuscript of
Book One in the British Library and realized how poor these previous
editions had been: The records which are quoted, are so wretchedly
mangled as to be unintelligible, . . . besides that the whole reasoning of
the author is frequently obscured and destroyed, by a wrong punctuation,
mistakes of one word for another, omissions of words, and often of sentences.’
Consequently in 1768, Tyrwhitt, then clerk of the House of
Commons, published the manuscript of Book One which he had found
[Harleian Ms. 1342] together with Elsyng's account of the Arundel case
[probably from British Library, Additional Ms. 26,642]. This is still the
standard edition.1
Elsyng had drafted more of Book Two than Tyrwhitt suspected.2
Chapter Five, a substantial treatise on Expedicio Billarum Antiquitus, also
discovered in the British Library, was published and identified as Elsyng’s
in 1954. Holograph notes for other chapters in the Petyt manuscripts at
the Inner Temple Library were printed in 1972. Chapter Four had a
longer history. Like Chapter Five, it is a treatise of considerable length. It
concerns the judicial activities of parliament. Though unfinished, it was
published in 1681 and ascribed to John Selden.3 This first edition of the
treatise on judicature was, like the early editions of Book One, careless
and often unintelligible. There was no indication that it was part of a
larger work. The ascription to Selden had no basis in fact. Therefore when
the holograph manuscript of the chapter became available, it seemed not
only desirable to prepare this modern edition but also became possible to
do so.
Elsyng’s original manuscript of his treatise on judicature is among the
papers formerly at Crowcombe Court in Somerset and now at the National
Library of Wales, where it is identified as NLW 17026D. The
treatise is marked in Elsyng’s own hand, ‘Lib. 2, cap. 4,’ and was clearly
intended as Chapter Four of his second book of The Manner of Holding
Parliaments in England.1 A single sentence finally settles Elsyng’s authorship,
and confirms earlier conjectures that the attribution to John Selden
is erroneous: ‘We are nowe come to our own tymes,' the author of the
manuscript remarked, ‘wherin I was Clerke of the Parlement.’2
Tyrwhitt said of the first book of Elsyng's treatise that it had a merit,
which very few books upon the Constitution and forms of Parliament
have, that it appeared to be written with a knowledge of the subject.’3
This was true of the second book as well, and of Chapter Four which
concerns us here. Elsyng was clerk of the parliaments 1621-1635 during a
crucial time in the development of the judicial activities of parliament and
wrote his chapter during those years. He said that he finished it in August
1627. A copy at the Huntington Library in California [Ellesmere Ms.
8392] has been corrected in his hand with the date June 1628.4
In writing this and other chapters of his book, Elsyng drew on his
extensive experience of the records of parliament. Until 1612 he had
shared the post of keeper of the records in the Tower with his friend and
kinsman by marriage, Robert Bowyer. Through Bowyer he also had access
to the abridgements of the records and other collections gathered by
William Bowyer, Robert's father, and by Robert himself. Both Robert
Bowyer, who became clerk in 1610, and Henry Elsyng assembled books of
precedents as part of their official duties as clerks of the parliaments or for
their own information.5 Thus when writing about judicature, Elsyng observed
the development of the judicial activities of parliaments in his own
time from the long view of earlier years. Attempts to control royal ministers
and favorites, the investigation of corruption in high places, and the
call for redress of grievances, had been a recurrent theme in the relationship
among kings, their parliaments and their subjects. Charges in 1621
against Francis Bacon, Lord Verulam and lord chancellor, in 1624 against
Lionel Cranfield, earl of Middlesex and lord treasurer, and in 1626 against
the duke of Buckingham and the earl of Bristol, were variously framed and
pursued. All concerned the upper House and hence its clerk. When puzzled
how to proceed, the Lords expected their clerk to search the precedents
they considered the one sure guide for the proper conduct of their
business.1
Elsyng was generally careful in citing his precedents. He assessed the
value of the records on which he relied, aware of the failure of earlier
clerks to take note of all the points of procedure for which he was searching.
Some precedents were more useful than others. In looking back to the
troubled reign of Richard II, he observed that theis extraordinary presidents,
cannot leade us into the ordynary course of Proceedinges. I only
alledge them as their Errours may be avoyded.’2 'The ordynary course of
Proceedinges' was not easy to establish. Elsyng's treatise stems from the
period when the judicial activities of parliament were expanding rapidly
and when matters of judicial procedure were being debated and determined
in the upper House of parliament. There were errors in the procedure
against Sir Giles Mompesson in 1621, Elsyng confessed, 'the Judicature
of Parlement beinge soe longe out of use.' There were errors too,
he believed, in the trial of the earl of Middlesex.3 Of particular importance
was the question of counsel for the defendant, a point on which the Lords
took issue with the king in Bristol's case.4
Just what does the manuscript of Elsyng's original draft of the chapter
on judicature add to what we already know of his treatise from the
printed versions or the manuscript copies? It is not, unfortunately, a
finished work. Elsyng treated only one section of the topic at hand, the
accusation, trial, and judgment of delinquents, and offered a list of five
other sections which were lacking.5 Throughout his manuscript, he left
blanks for himself or his copyist to fill in: Vide the Recorde,' I want this
at Large.’6 These little notes and asides, often omitted from copies, reveal
Elsyng's full intent and the meticulous care with which he intended to
document his work. The references he gave were remarkably accurate,
and he intended, when he returned from the country house where he
wrote the original draft, to complete and fill them out. In preserving all
Elsyng's directions to his copyist and to himself, the draft enables the
modern reader to envision the scope of the projected finished work, even
though apparently it was never completed.
The original draft also clarifies later clerical and printed copies. One
example may serve for many. In quoting a l
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