to examine this Quotation because I confess it seems very specious at first sight but if it be throughly examined will make nothing at all for you And to this end pray let us read the Dr's Observations on this Passage at the end of his Answer to Argumentum Antinormaunicum F. But you need not read from the beginning of that Paragraph since I so far agree with the Dr. as that by Principes diversi Ordinus are not to be understood as this Author renders them whom the Dr. here writes against the Chief or Principal Men of several ranks or conditions but the Chief and Principal Men of both Orders viz. of the Clergy and Laity yet will it not therefore follow as the Dr. here would have it that these Principes diversi Ordinis were only Bishops â Abbots and great dignified Clergy-men only and the Procenes and Magnates the Earls Barons and Temporal Nobility alone for though I grant he produces several Quotations out of Florence of Worcester Malmsbury Eadmer to prove that Principes Regni Ecclesiastici Secularis Ordinis Primates Regni utriusque Ordinis c. were at these Councils yet I have already proved that the words Principes and Primates do not in their proper signification signifie none but Bishops or dignified Clergy-men on the Temporal Nobility only since these words mean no more than Chief Principal or most considerable men both of the Clergy and Laity who had by reason of their Offices Dignities or Estates any place in our General Councils at that time and which did certainly comprehend the Inferiour Clergy also tho' the Dr. has made bold to pass them by without any notice taken of them and if they were then there by the same Rule the lesser Nobility or Commons were also summoned from divers Provinces Cities and great Towns M. Well But pray see here does not the Dr. prove plain enough that this Gentleman he writes against is mistaken in his Translation and applying the words Provinciis Vrbibus for Chief Lay-men from divers Countreys Cities and Burroughs whereas the Dr. here proves that the words mentioned in this passage cannot here mean Lay-men sent from County to Cities but only the Bishops whose Seats are here called Vrbes and which as the Dr. shews us were by a great Council held at London in the year 1077. being the 11th of King William translated from Villages to Cities as were Sherburn in Dorsetshire removed to Sarum Selsey to Chichester Litchfield to Chester which was before this Council at Westminster cited by Sulcardus which this Author places in the 14th of this King And the Dr. here farther proves from these words following pro causis cujuslibet Christianae Ecclesiâe that this Universal Synod being called for hearing and handling the Causes of every Christian Church that these words every Christian Church must certainly mean many Churches in England which in reason and probability could not be meant of the small Parish-Churches all the Nation over and therefore must be understood of Cathedrals or Churches where Bishops Seats then were or where they had been or were to be removed F. Pray give me leave to answer this Comment of your Doctors before we proceed farther In the first place suppose I grant him that by Vrbes may here be meant such Cities as had Bishops Seats yet does it not therefore follow that it shall signifie no other Cities or Towns but Bishops Seats only for tho' I grant in the Modern acceptation of this word Vrbs here in England a City and a Bishops Seat are one and the same yet it is plain that at first it was not so for then there had been no need of the Law you mention whereby it was ordained that Bishops Sees should be removed from Villages to Cities nor it seems were all of them so removed at this Council you mention since the Dr. shews us from this very place here cited that some of them still remained in Villis Vicis in Villages and small Towns and therefore it is here said Dilatum est ad Regis Audientiam qui in partibus transmarinis tunc Temporis bella gerebat âAnd tho' the Dr. here supposes tho I know not on what grounds that the persons summoned by the King to this Synod from Provinces and Cities were such as were concerned or able to advise the King in this matter of the conveniency of the places whither the Removals were to be made as Deans Arch-Deacons and other dignified persons and Church Officers as well of the Clergy as Laity c. And also the Principes Regni the great Nobility who were in those days present in those Assemblies Now I shall only observe from these words of the Doctors that even in his own supposition all Cities had not yet Bishops Seats annext to them and therefore the word Vrbibus cannot mean Bishops Seats alone but any other great or walled Towns But the worst of it is it falls out very unluckily for the Dr. that this Charter we now mentioned bears date A. D. 1075. two years before this Law for removing Bishops Sees to Cities was made so that all his Learned Comment on that matter signifies just nothing and this is one of the Doctors very rational conclusions which have no other ground than his own Fancy to support them In the next place pray observe the Dr. owns that by these Principes universi Ordinis were meant the chief Clergy-men and Nobility he there musters up but passes by or else did not consider the whole Context of these words hii autem illo tempori diversis Provinciis Vrbibus ad universalem Synodum Convocati which must certainly refer to the Principes Regni diversi Ordinis to the chief and considerable Men both of the Clergy and Laity of the Kingdom who were alike summoned from divers Countreys and Cities and great Towns to this Synod Now pray do you or your Dr. tell me if he can what Earls Barons or great Noble-men were then summoned from Cities or great Towns as well as the Bishops and Deans of Cathedrals which if you cannot do I see no reason why we may not understand these Principes Regni who were also summoned from the Countreys and Cities for the Representatives of the Commons of those Cities and Towns at that time In the next place I think the Dr. is as much out in his interpretation of the word pro causis cujuslibet Ecclesiae for the causes of every Cathedral Church since it must certainly mean not only Cathedral Churches but all other Churches whether Parochial or Conventual for that it takes in the latter appears by one great cause of the summoning this Council which was chiefly for the confirmation of the Priviledges of the Abby of Westminster which sure was no Cathedral Church and yet must be some Church or Ecclesiastical Corporation or else this Synod could have had nothing to do with it And I doubt not but this General
Prescription of Knights Citizens and Burgesses appearing in Parliament before the 49th of Henry the 3d for since you have now proved they were there by an undeniable Record in the 11th of Edward I. I shall now confine my self to Sir Henry Spelmans and Sir William Dugdales as well as the Drs. first Term of 49th of Henry the 3d. F. I shall observe your desires and in performing of which I shall pursue this Method I shall first give you a general Definition of Prescription and shall then prove that the Knights Citizens and Burgesses have always claimed to appear in Parliament by vertue of this general Right of Prescription Now the Terms of the Law tell us That Prescription is when a man claimeth any thing for that he and his Ancestors and Predecessors whose Estate he holds had or used any thing in all Times whereof no memory is to the contrary now pray let us see to what time this is limited that shall be said to be within Memory and what was anciently counted beyond time of Memory in a Prescription which may be best learnt from a Petition of the Commons to King Edward the 3d in the 43d of his Reign which is to be found in the Parliament Rolls of that Year wherein among other Petitions of the Commons this is one which I shall render and abridge out of French Item because the whole time of King Richard I. is held for temps de Memorie that it would please the King farther to limit this time so that it do not pass the Coronation of King Edwards Grandfather to the King that now is but mark the Kings Answer to this Petition Let the Law continue as hath been hitherto used until it be otherwise Ordain'd so that since there has been no Alteration in this Point from the Reign of Edward the 3d then the Time beyond Memory or whereof there is no Memory to the contrary continues still beyond the time of Richard the I. for Littleton tells us that all the time of Richard I. is time of Memory and therefore Sir Edward Cooke in his Comment upon him says That this was intended from the first year of his Reign for from that time being indefinitely doth take in all the whole time of his Reign which is to be observed Having fixt the certain time of a general Prescription beyond Memory I shall now proceed to shew you that the Claim of the Commons appearing at the Common Council or Parliament of the Kingdom is beyond that time which since I cannot do directly by reason of the loss of the Records of Parliament of those times any farther then has been already in the Case of the Burgesses of St. Albans which alone is I think sufficient to satisfie any reasonable man we must therefore make use of such Collateral Proofs and Records which tho they not directly yet by undeniable Consequence will prove the Point in Question I shall therefore in the first place make use of a Writ in the Exchequer of the 34th Edward I. directed to the Barons thereof reciting that whereas the Men of Coventry set forth in their Petition to the King that the said To all is not a City Burrough nor Demesne of the Kings so that the Townsmen were not wont to be taxed as Citizens and Burgesses or Tenants in ancient demesne in any Taxes granted to the King and his Progenitors but only with the Community of the said County of Warwick and yet that the Taxers and Collector of the said County have endeavoured to levy a 30th of their Goods towards an aid granted by the Communities of the Cities and Burroughs to the King to their Damage and Impoverishment and therefore pray remedy the King therefore Orders that the Rolls be searcht concerning such Taxations in the said Town and if it evidently appear by them that it is as they set forth and that the said men were always taxed with others without the Towns Burroughs and Mannors aforesaid in all payments of this sort that then they should not permit the said Taxers and Collectors to distrain the said Inhabitants to pay the King by reason of the said Concession of a 30th otherwise quam in totis temporious retroactis in hujuscemodi casu fieri consueverit c. from which Record we may draw these Conclusions First That this Town of Coventry did not hold of the King and yet was a Burrough and as such sent Members to Parliament in the 26th 28th and 30th of Edward I. as appears by the return of Writs of that Year Secondly That yet it prescribed Totis temporibus retroactis in all times pass'd to be taxed with the Body of the County and not with the Communities of the Cities and Burroughs in all Taxes granted to the King and his Progenitors which plainly shows that the Cities and Burroughs granted Taxes by themselves in the times of his Progenitors that is in the time of King Iohn at the least Lastly That the King orders the Rolls to be searcht which had been idle direction had it then been known or believed that the Cities and Burroughs never gave any Taxes for themselves in Parliament before the 49th of Henry the Third but little above forty years before the date of this Writ I shall shew you a like Writ which is to be sound in the same place for the Towns-men and Tenants of Beverly in the County of York in 8 vo of Edward the Second seting forth in their Petition that altho' they had been Taxed to to the 20th lately given to the King per Communitates Comitatuum by the Taxers and Collectors of a Subsidy of the 20th in the said County altho' they and their Ancestors had been accustomed to be Taxed to all Aids as well to the King as to his Propenitors granted per Communitates Comitatuum ejusdem Regni with the Community of the County and not with the Communitates Civitatum Bargorum yet that the Taxers and Collectors of the 15th lately granted by the Commons of the Cities and Burroughs do grievously distrain them to their great damage and therefore pray Remedy whereupon the King commands that the Rolls be searcht of such like Taxations and if it appear that the said Town has always been hitherto Taxed as they in their Petition set forth that then they shall be discharged from the said 15th From which Record we may conclude that this Town of Beverly tho' an Ancient Burrough and as such was summoned to send Burgesses to Parliament in the 26th of this King yet did not hold oâ the King in Capite nor in Ancient Demesne Secondly That Aids had been given the King and his Progenitors per Communitates Comitatuum i. e. by the Commons of the Counties which could not be done but by their Lawful Representatives and that in Parliament but how far these Progenitors must extend I need no repeat to you the ground of which Petition being admitted by the King in
and Power granted to them in and by this general Clause in the Writs of Summons issued to Sheriffs for every County before every Parliament enjoyning them in these Words Tibi praecipimus firmiter injungentes quod de Comitatu praedicto duos milites de qualibet Cititate duos cives de quolibet Burgo duos Burgesses at discretioribus c. sinâ dilatione Eligi eos ad nos ad dictos diem locum venite facias c. By vertue of which general indefinite Clauses used in all Writs of Summons ever since 23d of Edward I. without designing what particular Cities or Burroughs by Name within each County the Sheriff should cause to Elect or send two Citizens or two Burgesses but leaving it wholy to each Sheriffs Liberty and Discretion to send the Writ directed to him to what Cities and Burroughs he pleased thereupon every Sheriff used a kind of Arbitrary Power in the Execution of this general Clause according as his Judgment directed or his Assertions Favour Partiality Malice or the Sollicitations of any private Burroughs to him or of Competitors for Citizens or Burgesses places within his County swayed him this is most apparent by some Sheriffs in several Counties returning more Burroughs and Burgesses then their Predecessors others fewer some omitting those Burroughs returned by their Predecessors others causing Elections and Returns to be made for such new Burroughs which never elected or sent any before nor after their Sherivalties as is evident from the Returns Annis 28.33 E. 1. and 34. of E. 3. for Divân Anno 26. E. 1. for Yorkshire Anno 33 E. 1. for Oxfordshire Anno 28. of E. 1. for Hampshire Annis 33. and 34. of E. 3. for Sommerset Annis 25.27 and 28. H. 6 for Wilts c. So that the first Writs or Memorials of any extant on Record for electing Knights Citizens and Burgesses to come to Parliament are those of 49th of Henry 3d but these Writs onely commanded that the Sheriffs cause to come two Knights c. of each County and the like Writs were directed to the Cities of London Lincoln and other Burroughs of England to elect two Citizens and two Burgesses for each of them and the rest of the Cities and Burroughs in England the like Writs were also issued to Sandwich and the rest of the Cinque Ports without expressing their Names or Number in each County and this form I conceive says Mr. Pryn continued till 23d of Edward I. when the aforecited general Clause authorizing and intrusting every Sheriff to cause two Citizens and two Burgesses to be elected c. out of every City and Burrough in his County was first put into the Writs by Authority and Colour whereof every Sheriff sent Precepts to what Cities and Burroughs of his County he pleased F. I have with Patience heard this long History of Mr. Prins concerning the Election of Citizens and Burgesses from which I must notwithstanding make bold to differ for tho I own him to have been a man of great Learning and Industry in matter of Records yet I doubt he was often too quick in taking up of Opinions upon slender grounds therefore for the answering of him I shall first shew you the improbability of his Suppositions and in the next place shall make use of no other Confutations then what his own Book will afford us as to the Writs of Summons Returns and other things he lays so much stress upon in the first place for the Notion of Sheriffs sending Precepts to what Cities and Burroughs they pleased and consequently making as few or as many send Members to Parliament as they would that this was not so at first is evident from those very Writs of 49th of Henry the 3d by which it appears that they were not then directed to the Sheriffs for any more then to the Counties but as for the Citizens and Burgesses and Barons of the Cinque Ports they were then directed to themselves and he also confesses that this continued so from that time till the 23d of Edward I. so that all this while being about 28 Years it seems the Nomination of what Cities and Towns should send Members to Parliament did not depend upon the Will of the Sheriffs but upon somewhat else and I have asked you once tho without receiving any answer what Rule Simon Montfort went by to tell what Cities and Burroughs were to send Members and what not since the Words are onely in general de quolibet Burgo c. and therefore pray answer me now if you can M. I conceive in the first place as for the Cities Simon Montfort sent to those that were anciently esteem'd so viz. such as had Bishops Sees annext to them such as London Lincoln and particularly named in these Writs and others of the same rank and as for the Burroughs tho we have not the returns of them left us yet I suppose they were such Walled or other Towns as were of some considerable Note in England such as he thought were most proper for his turn F. That this could be no Rule appears by this clear Proof First That neither Coventry and Litchfield tho the Sees of the Bishops were not counted Cities in the time of Edward the first nor long after nor yet Ely for it appears by the Lists that Mr. Prin hath given us that it never sent Burgesses but only once and that to a great Council till of late years So that the Sees of the Bishops was it seems no general rule to make Places capable of sending or not sending of Citizens to Parliament And in the next place as to Burroughs that is pure Imagination that none but considerable or walled Towns sent any Burgesses at first whereas in the first List of returns which Mr. Pryn has here given us of the 26th and 28th of Edward I. which are the first extant for ought I know except those of 23d which I have never yet seen besides the Shire Towns of the Counties there are returns of a great many small Burroughs which never had any Walls nor yet for ought as we can find had any thing remarkable to make them be pircht upon to send Burgesses more than others but of these I shall speak more by and by onely shall remark this much that there must have have been some other Rule besides Montforts own Will for all this and what this rule could be unless an ancient Prescription in those Towns to send Members I desire you or your Dr. would shew any good Reason or Authority to the contrary And after the 23d of Edward the I. when Mr. Prin supposes that the Sheriffs by this general Clause in the Writs began to take upon them this new Authority of sending Precepts to and making Burroughs of what Towns they pleased this could not in the first place extend to such as were before that Counties of themselves such as London York Bristol c. nor yet such as were Ancient and
Deputies to their Great Councils at all and since the Government of England as you your self grant did very much resemble that why might it not be so here too F. I think your Reply hath no more weight in it than what you have already urged For in the first place it lies upon your side to prove that none but the King 's or chief Thanes had any Places in the Great Councils of those times and wheââ you can prove that you may do something But what I have now brought to prove the great Antiquity of our Cities and Burroughs in England is not so little to the purpose as you would make it since it confirms that Right of Prescription which all ancient Cities and Burroughs is England do claim of senâing Members to Parliament and therefore pray ãâã what Mr. Lambard a Person whom all the Learned own extremely knowing in the English Saxon Government tells us on this Subject in his Archeion in these Words That whereas in the beginning of the Law viz. those made by the Saxon Kings he there mentions all the Acts are said to pass from the King and âis Wisemen both of the Clergy and Laity in the Body of the Laws each Statute being thus And it is the advice of our Lord and his Wisemen So as it appears that it was then a received Form of Speech to signifie both the Spirituality and Laity that is to say the Greater Nobility and the Less or Commons by this one Word Witena i. e. Wisemen Now as these written Authorities do undoubtedly confirm our Assertion of the continuance of this manner of Parliament so is there also unwritten Law or Prescription ãâã doth no less infallibly uphold the same For it is well known that in every Quarter of the Realm a great many Burroughs do yet send Burgesses to the Parliament which are nevertheless so ancient and so long since decayed and gone to nought that it cannot be shewed that they have been of any reputation at any time since the Conquest and much lesâ than they have obtained this Priviledge by the Grant of any King succeeding the same So that the Interest which they have in Parliament groweth by an ancient usage before the Conquest whereof they cannot shew any beginning Which thing is also confirmed by a contrary usage in the self same thing for it is likewise known that they of ancient demesne do prescribe in not sending to the Parliament for which reason also they are neither contributers to the VVages of the Knights of Shires neither are they bound by sundry Acts of Parliament tho the same be generally penned and do make no exceptions of them But there is no ancient Demesne saving that only which is described in the Book of Dooms-day under the Title of Terra Regis which of necessity must be such as either was in the hands of the Conqueror himself who made the Book or of Edward the Confessor that was before him And so again if they of ancient Demesnes have ever since the Conquest prescribed not to elect Burgesses to the Parliament then no doubt there was a Parliament before the Conquest to the which they of other Places did send their Burgesses From whence we may conclude that the Learned Author did not only believe that the Lords but that also the Inferior Nobility and Representatives of Cities and Towns were included under the Word VVites and also that these Placeâ claimed that Priviledge by Prescription and not by Grant of any King since the Conquest or before M. I shall not deny but Mr. Lambard was a Learned Antiquary yet there are others more in number and perhaps of greater Learning who do suppose that no Cities or Burroughs sent Burgesses to Parliament but since the Conquest the I confess the time is not exactly agreed on but whenever they began to appeaââ there it is certain they could have no right of coming but from the King's Summons or Grants since none but such Cities or Towns that held of thâ King in Capite had anciently any place in those Assemblies noâ of them neither any other but those whom the King pleased to call And from thence proceeds that great Variety we find in the List of those Towns which send Members to Parliament But I shall omit speaking any thing farther of this at present But as for those middle inferior Thanes or Vavassours as they were afterwards called whom you suppose to have made so great a Figure in the Saxon Great Councils I do not believe that they had any Votes there and I hope I shall be able to prove to you by and by that none but the King's Tenants in Capite appeared in those Meetings from the time of William the Conqueror to the 49 Hen. III. Now if it be true as you suppose King William made no alterations in the constituent parts of the Great Council of the Kingdom after his conquest of it it will likewise follow that the same sort of persons viz. Tenants by Knights Service were the only Members of it before the conquest too But if you have any express Authorities out of our Ancient Saxon Laws or Histories to prove that the Commons appeared at the Wittena Gemotes in the Saxon times pray let us see them F. I shall perform your Command immediately but in the first place give me leave to tell you that what you have said concerning Cities and Towns not sending Burgesses to Parliament till after the Conquest is a great mistake built upon a false and precarious Hypothesis that they all held in Capite of the King the contrary of which I shall make out when I come to treat of that Question So likewise is it as precarious that none but the King's Tenants in Capite had any Votes in our Great Councils in the times immediately succeeding your Conquest till the 49th of Hen III. and that therefore it must have been so before the Conquest For as I own that King VVilliam made no material alteration in the Government of the Kingdom after his entrance so I likewise affirm that as well after as before that time if not Knights of Shires yet all Thanes the or Barons i. e. great Freeholders of England had Places in that Assembly before 49th of Hen. III. But to proceed to the Authorities you desire I shall begin with the first and most ancient General Council we have left us in the Saxon times viz. that which was held at Canterbury A. D. 605. by King Ethelbert not long after the settlement of Christianity in this Island which is recorded by Sir H. Spelman in his Brittish Councils in these Words An. Incarnationis Dominicae 685. Aethelbertus Rex in fide Roboratus Catholica una cum Beria Regina silioque ipso Eadbaldo ac reverendissimo praesule Augustino caeterisque optimatibus Terrâ Solenitatem Natalis Domini Celebrant Cantuariae Convocato igitâr ibidem Communi Consilio tam Cleri quam Populi Whence you may observe that
word Clârus which there coming immediately after the Bishops Abbots and Priors must needs signifie the Inferior Clergy he expresses the Lay Orders thus Cum Comitibus Baronibus ac Proceribus cunctis where we may observe the word Proceres here put distinct from Barones which may very well signifie not the Less Tenants in capite but the Knights Citizens and Burgesses as I have already proved the word Proceres does often signifie both in our Historians and Records but Quadrilogus gives us the Title of these Constitutions more exactly in these words Facta est ista Recognitio coram Archiepiscopis Episcopis Clero Comitibus Proceribus Regni and in the next Line he says That those Customs were thus recognized per Archiepiscopos Episcopos Comites Barones per Nobiliores Antiquiores Regni where he likewise distinguishes between the Bishops and Inferior Clergy and those who in the first place he calls Proceres Regni In the next he calls Nibilores Antiquiores Regni by which he might mean the Knights of Shires Citizens and Burgesses who were called in the Saxon Times Seniores Sapientes as I have already proved now if the Inferior Clergy appeared by their Representatives at this Council since they could not then all come thither in person any more than now to imagine that the Commons of England should not be likewise there by their Representatives of their own order is to deprive the Commons of that Right which you cannot but allow to the Inferior Clergy To conclude You your self confess that your Less Tenants in capite sometimes called Barones minores were only nominally and nor properly Barons of the Kingdom in the sense that word is now taken and if so pray give me any satisfactory Reason why other Commoners as well as they viz. the Knights of Shires Citizens and Burgesses might not then likewise have had Places in our Great Councils or Parliaments M. I see you use your utmost endeavour from the various and equivocal sense of the words in question between us to prove that the Commons in the sense they are now taken might be comprehended under the words Barones Miiâa Homines sai which it is very certain could not be according to the Constitution of the Government at that time And therefore I shall give you a very plain Answer to your Question why other Commonrss as well as the lesser Tenents in Capite could not be present or have places in those Great Councils because it was contrary to the received Custom and Law of the Kingdom at that time appears by those Clauses of King Iohn's Charter which Dr. B. hath made use of with so good success against Mr. P. and the Author of Ianus Anglorum c. And therefore I desire you would read them along with me ãâã they stand here in the Appendix to the Dr's Compleat History of England and as he hath transcribed them from an Ancient Manuscript in Bennet Colledge and divided them into so many distinct Articles or Chapters but those we chiefly insist upon are these Article 14. Nullum Scutagium vel Auxilium ponam in Regno nostro nisi per Commune Consilium Regni nostri nisi ad Corpus nostrum redimendum ad Primogenââ ãâã filium nostrum Militem faciendum ad Primogenitam filiam nostram semel Nââtandam ad hoc non siet nisi rationabile Auxilium 15. Simili modo fiat de Auxiliis de Civitate Londinensi Civitas Londinensâ habeat omnes antiquas Libertates Liberas Consuetudines suas tam per terras quââ per aquas 16. Praeterea Volumus concedimus quod omnes aliae Civitates Burgi Villae Barones de quinque Portibus omnes Portus habeant omnes Libertà tes omnes Liberas consuetudines suas ad habendum Commune Conclium Regni de Aââliis assidendis aliter quam in tribus casibus praedictis 17. Et de Scutagiis assidendis submoneri faciemus Archiepiscopos Episcopos Abbates Comites Majores Barones Regni singillatin per Literas nostras 18. Et praterea faciemus submoneri in generali per Vice Comites Ballivos nostrâ omnes alios qui in Capite tenent de nobis ad certum diem scilicet ad terminum quadra ginta dierum ad minus ad certum locum in omnibus literis submonitionis caâ sam submonitionis illius exponemus 19. Et sic facta submonitione negotium procedat ad Diem assignatum secundââ Consilium eorum qui praesentes fuârint quamvis non omnes submoniti venerint From which Ancient Monument we may draw these Conclusions 1. That the King exercised a Royal Prerogative before this Charter of Assessing Aids and Scutages upon all sorts and degrees of Men without the Assent oâ the Great or Common Council since called the Parliament from doing which for the Future the King by this Charter tyed up his own Iââand unless iâ the Three Cases here particularly reserved 2. That there is no mention of any other Members to be summoned to thââ Council but the Archbishops Bishops Abbots Earls and Greater Barons bâ particular Writs and all the other Lesser Tenents in Capite by one general Summons by the Sheriff So that it is apparent that the Greaâ Councils before this time only consisted of such Earls Greaâ Barons and Tenents in Capite as the King by special Writ waâ pleased to summon and this new way brought in a greateâ number of the Tenents in Capite than ever had appeared before so that if iâ should be true which you assert that this Charter was no new Grant to the People of England but a Confirmation of their Ancient Rights and Liberties it muââ then necessarily follow that Great Lords and Tenents in Capite called sometimââ Barones Minores were then the only Representatives of the Commons And that the Inferior Tenents consent was included in tââ Assent of his immediate Superior Lord whose presence was rââquired in those Great Councils or Parliaments need not think be doubted and I can give you if need be several Authorities to prove it But pray observe further that here is no mention at all in this Charter of any Citizens or Burgesses to be summoned to the Great Council unless you will have them included under the general Title of all others who hold in Capite and then none but such Cities and Towns who held in Capite could pretend to send any Members much less is there any mention of any Knights to be chosen for Counties which certainly would have been particularly provided for by this Charter had they then had any place in this Assembly So that I think it is very plain that the Commons were not otherwise represented than by these Tenents in Capite for the rest of King Iohn's and most part of King Henry III. Reign for ought I can yet discern For though this Charter was Confirmed in the second and ninth year of
of Parliament and Taxed with the rest of the Kingdom as often as there were Laws made and Taxes given when their Bishop or Earl was present which was not so for in the first place as for the County of Chester if the Earl had been the Representative in Parliament of his Tenants by Knights Service or otherwise as also of all the Abbeys and the City of Chester it self and all other great Towns in that County his Vote in Parliament would have obliged all of them and there would have been no need of a Common Council or Parliament of the States of the whole County in which they then made Laws and Taxed themselves as a Separate Body from the rest of the Kingdom as may appear from these following Records which Mr. A. hath given us the first of which is a Writ of K. Edw. I. directed Archiepiscopis Episcopis Abbatibus Prioriâus Baronibus Militibus omnibus âliis Fidelibus suis in Comitat. Câstriae reciting that whereas the Prelates Counts Barons alii de Regno had given him a 15 th of their Moveables He desires that they also would of their Benevolence and Courtesie in Latin Curialitate grant him the like Subsidy which Note could not be done out of a Common Council So likewise in another Writ of the 20 th of this King reciting that whereas the Probi Homines Communitas Cestriae sicut caeteri de Regno nostro 15 mam partem omnium mobilium suorum nobis concesserunt gratiose Now supposing as the Doctor always does that these Probi Homines were the Earls Tenants in Capite what can this word Communitas here signifie but another sort of men distinct from them viz. the Communalty or Commons of that County And which is also remarkable this County was now fallen to the Crown for want of Heirs male of the last Earl and so according to the Doctors notion the King being their sole Representative needed not to have been beholding to them for these Subsidies since tho not as King yet as Earl of Chester he might have Taxed them himself which yet he thought not fit to do because he knew it was contrary to the Rights and Priviledges of that County which had ever since the grant of it to Hugh Lupus by Will I. always been Taxed by themselves Which Priviledges are also expressly set forth in a Supplication of all the Estates of this County Palatine to K. Henry the Sixth which Mr. P. has given us from an Ancient Copy of it then in the hands of Sir Thomas Manwaring of that County Baronet Wherein the Abbots Priors and Clergy Barons Knights Esquires and Commonalty set forth that they with the consent of the Earl did make and admit Laws within the same c. and that no Inheritors or Possessors within the said County were chargeable or lyable or were bounden charged or hurt of their Bodies Liberties Franchises Lands Goods or Possessions unless the said County had agreed unto it Now what can here be meant by County but the Common Council or Parliament thereof since otherwise they could make no Laws nor do any other publick Act The like I may say for the County Palatine of Durham which from the Grant thereof by William Rufus to the then Bishop had always been Taxed by themselves and not by the Bishop in Parliament and that as low as the Reign of Edw. 3. as appears by this Record of the 14 th of that King containing a Letter or Commission to R. Bishop of Durham reciting that whereas the Prelates Earls Barons and the Commons of Counties had given him a 9th of their Goods there mentioned that therefore the Bishops should convene the Magnates Communitatem Libertatis vestrae to wit of his County Palatine ad certum diem locum with all convenient speed and that done to perswade and excite the said Magnates Communitas to grant the King the like or a larger Subsidy or Aid towards the maintainance of his Wars which had been altogether in vain if the Bishop or the King could in those days have Taxed this County at their Pleasure Now if these great Tenants in Capite could not Tax their Mesne Tenants without their consents much less could the rest of the Tenants in Capite in England impose Taxes on their Tenants in Military Service or in Socage without their consents which last had a much less dependance upon them M. I must confess I never considered these Precedents of the County Palatine of Chester and Durham and therefore can say nothing to them at present since it is matter of fact but as to Reason and Law I think it is consonant to both that not only Tenants in Military Service but Socage Tenure should be found by the Acts of their Superior Lords of whom all the Lands of England were formerly held by Knights Service And tho in Process of time many of these Estates and Lands became free Tenements or were holden in Socage that is were Free holders yet the Lords retained Homage which in the times we now write of was no idle insignificant word and by that a Dominion over the Estate whereby upon Disobedience Treachery or Injury done to the Lords c. the Lands were Forfeited to them and although the Lands nor the Tenants of them which were termed Free-holders were subject to any base Services or Servile works yet the Lords had a great Power over these Tenants by reason of their doing Homage to them which tho now antiquated yet eo nomine their Lands were many ways liable to Forfeiture and Taxes too So that upon all thesâ accounts it was then as reasonable that the Tenants in Capite should in those days make Laws and grant Taxes for all the rest of the Kingdom as the Tenants in Capite in Scotland should do so to this very day for all the Inhabitants of that Kingdom of never so great Estates and to this Argument which is certain in matter of fact you have yet answered nothing nor do I believe can F. I cannot see notwithstanding what you have now said that the Superior Lords by reason of Homage should have an absolute Power over their Tenants Estates For tho in the Profession of Homage to the Lords I grant the Tenant thereby promised to become the Lords Man yet he never thereby meant to become his slave and there were mutual Duties on both sides so that if the Lord failed to protect his Tenant in his Estate or unjustly oppressed him he might have refused nay renounced his Homage till the Lord had done him right nor can I see how a bare right of having the Forfeiture of the Estate in the Cases you have put which yet let me tell you were never so strict in respect of Socage as Military Tenure as I could shew you were it worth while for if this right of Forfeiture alone could give the Superiour Lord a Power over his Tenants Estate to make Laws for
whole Nation in Parliament and I am of this opinion because in many of the old Statutes before the time of Robert the 2 d. we find the Communitas totius Regni coming immediately after the Earls and Barons as in our own ancient Statutes and Records but after those Reigns we find no more mention of this Communitas but only of the Dukes Earls Barons Liberi Tenentibus Burgensibus qui de Rege tenent in Capite as in the Titles to those Statutes of K. Robert the 3 d and Iames the 5 th you have now cited And yet that Liber Tenens was not anciently taken for a Tenant in Capite only pray see the 14 th Chap. of the Laws of K. Alexander the 2 d. made Anno Dom. 1214. with your Doctors comment upon them Statutum est quod nec Episcopi nec Abbates nec Comites nec aliqui liberi Tenentes tenebunt curias suas nisi Vicecomes Regis vel servientes Vicecomitis ibidem fuerant upon which words the Doctor in his answer to Mr. P. hath this remark viz. this again shews us that the Freeholders were Lords of Mannors at least So that unless you will suppose that none but Tenants in Capite were Lords of Mannors or held Courts as certainly very many of the Mesne Tenants did this word Liber Tenens must extend to any other great Freeholder or Lord of a Mannor of whatsoever Lord he held it and as such might anciently have had a Vote in that Parliament so that if I have as I think sufficiently proved that the word Communitas coming after the Earls and Barons in our ancient Statutes and Records did certainly signifie another order of men distinct from the Tenants in Capite I I have the same reason to believe it was so in Scotland too not only because these general words Communitas totius Regni must needs be more comprehensive than to express the Tenants in Capite only who could never Represent all the great Freeholders in Scotland any more than they did in England but also because it is acknowledged by the Scotch Lawyers that the Fundamental Laws and Constitutions are the same in both Kingdomâ for Sir Iohn Skene in his Epistle to K. Iames before his Scottish Laws says thus Intelligo tuas tuorumque Majorum leges cum legibus Regni tui Angliae magna ex parte consentiunt which is also acknowledged by the King himself in the Speech he made in Parliament concerning the Union of both Kingdoms To conclude I cannot but admire your Doctors strange partiality who does allow the Commons of Scotland to have even been a third Estate when he expressly grants that the Commons of Scotland were and are at this day the Kings Tenents in Capite and that the Kings Royal Burroughs were such as ever did and do at this day in Scotland only send Burgesses to Parliament Now why the Cities and Burroughs in England should not have always had the like Priviledge as well as in Scotland I wish you could give me any sufficient reason M. Since you own that the Tenants Capite or else Commissioners in their stead have been the sole Representatives for the whole Kingdom of Scotland for above 200 years I doubt not but they were so long before that time since you confess you cannot shew any Law by which this ancient Custom came to be changed though I grant that the Statutes before K. David and Robert the 2 d are said to be made by the Communitas totius Regni yet you must not suppose that Constitution of the Kingdom altered when the Clerks altered their phrases in penning their Statutes and Records so that this Communitas was the Community of the Tenants in Capite only and not of the Freeholders or of the Citizens and Burgesses of the whole Kingdom since as for the former you cannot say that all the People in Scotland had ever a right to chuse the Commissioners for the Shires for then 't is most likely they would have kept to this day whereas we see that none but Tenants in Coplie have Votes at such Elections And as for Cities and Burroughs I cannot find nor do I believe you can shew me any instance of a City or burrough-Burrough-Town in Scotland that ever sent Deputies to Parliament but what held in Capite of the King For though there are at I said already besides the Royal Burghs two other sorts viz. Burroughs of Regality and Burroughs of Barony who hold of the King but not in Capite or else of some Bishop or Temporal Lord and though divers of these are considerable for Trade and Riches yet none of them send any Burgesses to Parliament so that though I confess there are three Estates in the Scotch Parliament called in the Statutes of K. David and Robert the 2 d the Treâ Communitates Regni yet did these always consist of the Tenants in Capite only who therefore sit together and make but one Assembly Now that we may apply what hath been said to England I desire you to take notice that the Doctor and we that are of his opinion do not positively affirm that that the Commons of England were not at all represented before 49 Hen. 4. but that they were not represented in Parliament by Knights Citizens and Burgesses of their own choice but by the greater and lesser Tenants in Capite the greatest part of which I grant were not Lords and admit that I should grant you that some Cities and Burroughs sent Members to Parliament before the 49 th of Henry the Third yet were they only such as held in Capite and no other as the Doctor has very well observ'd in his Answer to Mr. P's argument from the Petition of the Town of St. Albans so that upon the whole matter there will be no more gain'd by you in this Controversie than that perhaps some Citizens and Burgesses appear'd in Parliament and constituted a third sort of men which you may call the Commons if you please though I cannot find they were so called till after the time of Edward the First but supposing this to be so it is very far from your Republican levelling opinion who do suppose that all the Freeholders of England had an ancient indisputable right of appearing in Parliament by reason of their propriety in Lands or other Estates whereas by our Hypothesis we suppose the great Council or Parliament to have anciently been the Kings Court-Baron consisting of his immediate Tenants call'd thither by him their Supreme Lord to advertise him of the Grievances of the Nation and to propose what new Laws were necessary for the publick good of the Commonweal and together with him to raise such publick Taxes both upon themselves and their Tenants as the necessities of the State requir'd yet notwithstanding there is a vast difference between your notion and mine concerning the Rights which such Tenants in Capite might claim of coming to Parliament since before King Iohn's Charter whereby
without all the rest of their Peers divers of whom it seems the King had for some reasons then omitted to Summon But as for your instance of the Barons Peers or alios Magnates which were somtimes Summoned and sametimes omitted in the Reigns of our three Edwards You do well to put in that it was after the times that the Commons were a third Estate for indeed it was only after that the Tenants in Capite had left off making a distinct Council by themselve which I suppose was about the end of Henry III. Reign and then it is true the King called several of these Tenants in Capite as also others that were not so by Writ to the House of Lords as Pares Baronum i. e. not as real Barons but Barons-Peers since a baâe Summons by Writ did not as yet nor long after vest a Peerage in their Heirs so that upon the whole matter I see no reason from any thing you have urged from the example of Scotland to make me change my opinion that the Tenants in Capite were anciently the sole Representatives either of this or that whole Nation in Parliament for pray take Notice that I do not find the Tenants in Capite so much as mentioned in the ancient Statutes of that Kingdom or Charters of their Kings as the Common Council or Parliament of Scotland before the Reign of King Robert III. which was but late in Comparison of the antiquity of those Councils in that Kingdom M. I could say more as to the Antiquity of the Tenants in Capite their coming to Parliament as the sole Reprensentatives of the Nation before the time you mention but it grows late and therefore I shall wave it at present and so shall only proceed to remark that great part of the Errour of the Gentlemen of your Opinion proceeds from this false ground that you suppose that the Parliaments both of England and Scotland were a perfect Representative Body of all the Free-houlders and Freemen of those Kingdoms which is a meer Chymera for in the first place if we will consider it never was nor indeed is so at this day since you your self must acknowledge that all Copy-holders and Lease-holders under Forty Shilling a Year all Freemen in Towns Corporate where the Elections lies wholly in the Major and Aldermen or Common Council and lastly all that will not pay Scot and Lot in divers Burrough Towns are utterly excluded from giving their Votes in the choice of Parliament Men and consequently from having any Representatives in Parliament though sure as much Freemen as the rest of the Kingdom and this either by general Statutes or else by the particular Charters and Customs of those Cities Towns and Burroughs all which are lookt upon as good and lawful Representatives of those Cities and Burroughs so that I am clearly of the Doctor 's Opinion that the Tenants in Capite as well those who were Barons as those that were not only represented themselves and not the Commons as being as you truly observe never chosen by the People and as no Man can believe that a great Lord or Bishop could Represent his Mesne Tenants so neither could the smaller Tenants in Capite who were no Barons be properly said to represent theirs and yet these might according to the Custom of Feudal Tenures and the Power they then had over their Tenants Estates very well make Laws for them and Tax them at their pleasures because the main interest and strength of the Kingdom lay almost wholly in them and these as the Doctor very well observes having the Power of this or any other Nation de facto always did make Laws for and Tax the rest of the People But to say somewhat to the Authorities you have brought from the County Palatines of Chester and Durham I know not what old Priviledges they might pretend to of not being forced to give Voluntary Aids or Subsidies of their Moveable Goods without their consents yet this much I think may be made out that as for all Land Taxes and the general Laws and Statutes of the Kingdom they were as much bound by the one and as much liable to pay to the other as the rest of the Subjects of England or else how came they afterwards to be bound by our general Statutes at all as certainly they were from all times since the Conquest though Chester had no Representatives in Parliament till the Reign of Henry VIII and Durham had none till our times F. You Gentlemen who hold this general notion of Tenants in Capite are so intoxicated with it that you do not care what absurdities or contradictions you fall into provided you may maintain your dear opinion as I shall shew you by and by But first let me tell you your Reply to what I have now said is very fallacious and in some points mistaken as to the matter of Fact For in the first place I doubt not but our Common Councils or Parliament were in their first institution the main Body or Representative of all the Freemen of the Nation and though it may by long continuance of time to deviate from that Institution yet that it is to be attributed either to some prevailing Custom or else positive Law to the contrâry for it is certain that in the Saxon times all the Free holders of England had a right of coming to Parliament in Person and hence it is that Liber Tenens Liber Homo Ingenuus were Synonimous and of the same signification as I have proved from Sir Henry Spelman's Comment in his Glossary upon those words and hence it is that the Members of those Councils were so numerous as they were in those times and long after till they became so vast and unmanageable that they were fain by degrees to pitch upon this method of sending Knights of Shires to represent them which is certainly a very ancient Institution since the Tenants in Ancient Demean claimed to be exempted from the Expences of Knights of the Shires by Pâescâiption as I shall shew you more particularly by and by and likewise since all Riches consisted in those days in Land or else in Stock or Trade therefore the Cities and Burroughs and Towns by reason of their Riches had always a share in the Legislative Power as well as in giving of Taxes and since all such Citizens and Burgesses not being able to come in Person as the Free-holders could were represented either by their chief Magistrates called their Aldermen or else by Burgesses of their own chusing as at this day so that all Freedom or Ingenuity being in this as in all other Common-wealths reckon per censum by the Estates of the owners our Common Councils were and that truly the Representatives not only of the Estates but Persons of all the Freemen of the Nation for I am so far of the Doctor 's Opinion that the Cheorl Folk as they were then termed were little better than the Scotch Vassals or
of Knights of Shires I will not dispute it farther with you since it is a Point of your Common Law in which I confess my self but meanly skilled but I shall take farther time to advise with those that know better in the mean time as for the Cities and Burroughs let them have appeared when you will their coming to Parliament could not be so ancient as before the time of Richard I. much less the Conquest as you suppose since Mr. Pryn hath in the same second part of this Parliamentary Register traced the summoning of the Burroughs to their very Original and proved it could not be ancienter then the 49th of Henry the 3d. I shall here contract his Arguments and give you them as I did the former First He here proves that there were never but 170 Cities and Burroughs who sent any Members to Parliament of which 170 in his Catalogue nine of them never had but one or two Precepts and others but four Precepts of this Nature sent them upon none of which Precepts the Sheriffs made any returns of Burgesses as these Ballivi Libirlatis nullum mihi dederunt responsum or nihil inde secerunt attest whereupon they never had any more Precepts of this kind sent them to this Day Christ-Church in Hampshire onely excepted which of late years hath sent Burgesses to Parliament so that in Truth there were only 161 Cities and Burroughs in England that ever sent Members to Parliament during all the precedent Kingâ Reign viz. From the 26th of Edward I. to the 12th of Edw. the 4th Secondly That 22 more here named of these 161 never elected and returned Burgesses but once and no more during all the said time Thirdly That many more of these ancient Burroughs here named never sent Members some of them more then twice others thrice others four others five others six others seven others eight times and Lancaster has but 13 Elections and Returns of Burgesses and no more during all the above mentioned Reigns Fourthly That altho some of these Burroughs here named who seldom sent any Burgesses tho they were summoned by the Sheriffs Precepts to Elect Burgesses without any great intervals of time to six or seven Succeeding Parliaments yet most of them had along discontinuance of time some of above 200 others above 300 years distance between those few respective Returns of which he here gives you several Instances and referrs you to his precedent Catalogue of Returns for the proof of it So that there were but 112 Cities and Burroughs taking in the Cinque Ports and all who senâ Members to Parliament in the Reign of Edward I. seven of which made onely one return and no more for ought I can discover before or after Edward 1st Reign till of very late Years Yet that in Edward the 2ds Reign there were Precepts issued by the Sheriffs and returns of Burgesses for 19 new Burroughs here named which for ought I can discover never elected any Burgesses before Fifthly That under this long Reign of Edward the 3d. there were Sheriffs Precepts issued to 19 new Borroughs returns made upon them to serve in Parliaments or great Councils who never sent any Members before and Precepts to more that made no returns at all thereupon as for the Cinque Ports of Dover Romney Sandwich Winchelsey Hastings Hâthe and Rye though there be no Original Writs for or returns of their electing and sending Barons to Parliament now extant before the Reign of Edward the 3d yet it is apparent by the Clause Rolls that they sent Barons to Parliament in 49th of Henry and during the Reign of Edward 1st and 2d of which more anon Sixthly That King Richard the 2d Henry the 4th and Henry the 5th created no new Burroughs at all neither were there any Writs or Precepts issued to or Election of Citizens or Burgesses by any new Cities or Borroughs but such as elected them before their Reigns Seventhly That about the midst of King Henry the 6th long Reign there were Precepts issued to and returns made by five new Burroughs and no more which never sent Burgesses to Parliaments before viz. Gatton in Surrey Hâytesbury Hyndford Westbury and Wootton Basset all in Wiitshire yet very poor inconsiderable Burroughs tho they elect Burgesses at this day That during Edward the 4th Reign there was one new Burrough here named which began to send Burgesses to Parliament under him though it never sent any before F. Well but how came this about that so many new Burroughs were made in some Kings Reigns and few or none in others â and so many omitted that had served before in other Parliaments M. Pray read on and you will see this Author gives us a very good account of that and impures it to two Causes First The Partiality and Favour of the Sheriffs and the Ambition of the Neighbouring Gentry who desired to be elected in such new Burroughs Secondly The meer Grace and Favour of the King who by divers Charters to new Corporations have given them the Priviledge of sending Burgesses to Parliaments For Proof of which pray see what this Author here farther says It is evident by the precedent Sections and Catalogue of ancient Cities Burroughs Ports and their returns of Writs and Election before specified with these general Clauses after them Non sunt aliae or ullae Civitates nec Burgi in Balliva mea or in Comitatu praedicto praeter c. as you may see by the return of the Sheriff of Bucks Anno 26 of Edward I where he denies there were any Cities or Burroughs in his whole County and yet the very next Parliament but one within two years after the Sheriff of Bucks returns no less then three Burroughs viz. Agmundesham Wycombe and Wendover with the Burgesses Names that were returned so that the 78 new Burroughs here named were lately set up in the Counties since Edward the 4ths Reign by the Practice of Sheriffs and the Ambition of Private Gentlemen seeking to be made Burgesses for them and Consent of the poor Burgesses of them being courted and feâsted by them for their Votes without any Charters from the King and are all me in poor inconsiderable Burroughs set up by the late Returns and Practices of Sheriffs And tho others may conceive that the Power of our ancient Burroughs or Cities Electing and sending Burgesses and Citizens to our Parliaments proceeded originally from some old Charters of our Kings heretofore granted to them and to which Opinion I once inclined yet the Consideration of the new discovery of the old Original of Writs for Electing Knights Citizens and Burgesses I found in Caesars Chappel hath rectified my former mistake herein and abundantly satisfied me that neither bare ancient Custom or Prescription before or since the Conquest not our Kings Charters but the Sheriffs of each Counties Precepts and Returns of Elections of Burgesses and Citizens for such Burroughs and Cities as they thought meet by Authority
opulent Cities such as Canterbury Lincoln Exeter c. who were not made Cities by having Bishops Sees annoxt to them but were such long before Christianity was preacht to the English Saxons as I have already proved nor could this Power of the Sheriff extend to the Cinque Ports whose Rights of sending two Barons for each Port was sure very well known and setled in the 49th of Henry the 3d as appears by these general Words at the foot of the Writ similiter mandatum est singulis Portubus pro se without naming them in particular so that if it had not been sufficiently known what Ports were thus to send all the Sea Port Towns in England might have had Precepts sent them as well as the Cinque Ports who had at first their Summons directed to the Barons and Baylifts in general nor is there any Writ found directed to the Warden of the Cinque Ports to Summon each of them to send Burgesses till the 17th of Edward ad as Mr. Prin here shews you so that in all these Elections and Returns being above 20 the Sheriff could have no Power and therefore did not depend upon his good Will and Pleasure alone as this Author would have it But to come to that which Mr. Prin chiefly insists on viz. the putting in and leaving out divers of the smaller Burroughs in so many Kings Reigns and which he attributes wholy to the favour or partiality of the Sheriffs I shall first argue against the improbability of the Notion and then shall Confute it by plain proofs from Mr. Prin himself First It is not at all likely that the King should ever trust the Sheriff with this great Prerogative of making what or as many Burroughs as he pleased in a County Since that could not be then done without some particular Writ or Charter for otherwise this had made the Power of the Sheriffs more Arbitrary than that of the King himself it he had in those Reigns you treat or no other Rule to go by than his own humour passion or interestâ nor would the King have ever endured such an Innovation since it would have been in the power of the Sheriffâ to have made as many Burroughs as they pleased and to have encreased the House of Commons to an unreasonable bulk wineh was against all Rules of Policy for him to suffer Lastly Neither would the House of Commons themselves have suffered this Encroachment for since most of the Cities and Burroughs of England sent Members in Parliament before this Innovation of the Sheriffs began they would never have quietââ permitted new Men to be sent in among them from obscure places they never heard of without either turning them out themselves or complaining to the King in Parliament of so great an Abuse M. But what can you say against direct matter of fact has not Mr. Prin here plainly proved to you that the Sheriffs did in those times exercise an Arbitrary Power in this matter returning some Towns out of ill will only to charge them with Electing Burgesses to make them liable to the payment of wages to them omitting others also out of spight as appears by this Petition of the Towns-men of St. Albans you have now cited a great many of which were so long omitted that they came at last to lose all right of sending any more till it came to be again revived of late years as in the Case of divers Burroughs whose names Mr. Prin has here given us who by Orders of the Long Parliament in 1640. again sent Members to Parliament after some Ages intermission Pray now tell me what other satisfactory account can be given for the making of so many new Burroughs and omitting so many old ones but the Arbitrary power of the Sheriffs who then took upon them to do what they pleased in this matter as appears by so many Instances he has here given us F. Well since the improbability I may say impossibility of the thing will not satisfie you I doubt not but to shew you that tho' the Sheriffs might sometimes abuse the trust committed to them in sending Precepts to the Burroughs that were not liable to them yet that for all this they never exercised that Arbitrary Power you fancy of making and unmaking what Burroughs and consequently as many Parliament-men as they pleased Now to prove this from Mr. Prin's own Instances and Authorities I shall reduce all the Causes of this Abuse to these Heads 1. The Favour or Malice of the Sheriffs 2. The Ambition of the Neighbouring Gentlemen who desired to get to be Elected at such Burroughs Or lastly from the desire of those Towns themselves to get this priviledge among them of Electing and Returning Members to Parliament To begin with the first of these it could never proceed from the Favour of Sheriffs to such Towns because the charge of wages to the Burgesses was then so great when two shillings a day was more than ten shillings is now that they could never look upon it as a favour to have this charge imposed upon them unless it were some few who were very large and in a rich and flourishing condition and those always sent Burgesses to Parliament before the Sheriffs had this power committed to them as you supposed by that general Clause in the Writ of sending Summons to the Cities and Burroughs nor could the Sheriffs if they would have long continued to lay this burthen upon any Town out of Malice for if such Towns could not afford this extraordinary Charge of sending Burgesses to Parliament they might have 'scaped it whenever they would either by making no Returns at all to their Precepts sent them as Mr. Prin here shews in the Lists he has given us of Returns very many of them did or else they might have taken that Remedy against it which as this here Author expresly acknowledges divers Towns did who being maliciously charged by the Sheriffs to send Burgesses when both unwilling and unable and who upon their refusal to Elect returned Burgesses for them against their wills whereupon they complained to the King or Parliament of the Abuse and so were eased of this Charge and Trouble or else eased themselves other Burroughs growing very poor and unable to send Burgesses to Parliament and defray their Expences were thereupon discharged by the Sheriffs who made special Returns in their Favour and of these he gives you several Instances in his Collection of Returns for the County of Bucks or else for Poverty as in the Case of Lancaster others procured perpetual or else temporary Exemptions from the King or the King and his Council from sending Burgesses to future Parliaments and upon some one or more of these Precedent grounds they quitted waved or lost their Ancient Priviledge of sending Burgesses which they rather reputed a charge burthen and oppression than an honour and of this he gives as a remarkable Instance in Toriton in Devonshire
which after having Elected and Returned Burgesses to no less than thirty two Parliaments yet in the 42d of Edward 3. upon their Petition to the King in Parliament obtained a Patent to be exempted for ever which he here gives us as also a temporary Exemption from King Richard the Second to the Town of Colchester for five years in regard of their great Charge in building their Town-walls which shews that the Burgesses wages was then a great burthen upon Towns tho' rich and flourishing in Trade as appears by Colchester which was then able to Wall their Town at their own Expence And I could shew you more such Exemptions as these were it not too tedious and I doubt not but there were many more such than what are entred upon the Rolls Now that we may apply what Mr. Prin has here said to our present purpose it is plain that tho' the Sheriffs might sometimes oppress some Towns by sending Precepts to them to Elect which ought not have sent Members to Parliament at all yet that he could not make new Burroughs without the Inhabitants consent is plain by his own shewing since they could be eased of that Charge whenever they pleased And I desire you or any one selfe to shew me any City or considerable Town in England that thus began first to send Citizens or Burgesses to Parliament by the Sheriffs Arbitrary Power not but that some Towns might complain of this Abuse of the Sheriffs without any just cause as in this Petition of Toriton now mentioned where they set forth quod villa praedicta ad mittend aliquos homines pro dicta villa ad Parliamenta nostra onerari non debtat nec aliquos homines praedicta villa ad Parliamenta nostra vel Progenitorum nostrorum miserit nec mittere consueverit ante annum Regni nostri vicesimum primum c. Now tho' this Petition was false in matter of fact since it appears by the Returns that they had sent Burgesses to Parliament long before in the Reigns of Edward the First and Second yet the ground of their Petition was right that they ought not to send any Men to Parliament unless they had been accustomed so to do in the time of this King's Progenitors which had been a vain Plea if it had been in the Sheriff's power as of right to have summoned what Towns they pleased to Parliament since then there could have been no Custom pleaded against it This being once granted by Mr. Prin or proved from the nature of the thing we shall now come more particularly to give an account how several Towns might come to be put in or lest out of the Sheriffs Lists of the Burroughs without granting them this Arbitrary Power of making what Burroughs they pleased Now these 170 Cities and Towns Mr. Prin has given us and which have had Precepts sent them at any time may be divided by him into these three ranks the first is of those being nine in number which he says never made any Returns to the Precepts sene them and so continue to send no Members to this day except Christ-Church Now these nine Towns either had a right to send Burgesses to Parliament in the King's Reigns in which they received those Precepts or they had not if they had such a right the Sheriff's did but their duty to send them Precepts as well as to the rest of the Burroughs of the County for sure they had some Rule for doing it more than their own private fancies since the very Writs of Summons from whence you would deduce this power to the Sheriffs only recite aâ qualibet Civitate c. de qualibet Burgo c. which had been mighty uncertain if it had not been then very well known what Towns were then Cities and what Burroughs and sure these nine Towns must have then been Burroughs in Reputation at least or else they could never have had one two or more Precepts sent them as Mr. Prin here owns they had and they might have had many more such for ought we know had all the Sheriffs Precepts and the Returns upon them been preserved as most of them are lost or mislaid as I shall shew more at large by and by Or if these Towns had no right at all to send Burgesses to Parliament it was not in the Sheriffs power to impose it upon them since they might have refused it if they pleased and so take it either way nothing can be argued from the loss or omission of the Returns for these Burroughs that they either had or had not any former right to Elect since this might happen from the negligence of the Bailiffs or Constables of the Town or else from their own desire to be excused from the Charge Thus in the 28th of Edward I. the Sheriff returns that the Bailiffs of St. Albans had made no Return of his Precept neither is there any Returns of such Precepts to this Burrough all the Reign of this King does is therefore follow that this Town had no more Precepts sent them in all his Reign when I have shewed you the contrary by the Writs of Expences in the 35th of Ed. I. or that they had no other right to appear in Parliament as a Burrough but what the Sheriffs Precept first gave them when you see they claimed by their Petition to Ed. the 2d to send Burgesses to Parliament in the Reign of this King and his Progenitors The second Rank of Towns are such for which are found for some one for some three and for others more Precepts with Returns of Elections made thereupon and yet those that have made most Returns do not amount to during the Reigns of Ed. 1 2 and 3. Rich. 2. Henries the 4th 5th and 6th to above thirteen Returns Well granting all this will it therefore follow that they had no other right than the Sheriffs good will and pleasure since if they had a right and were willing to preserve it they might have petitioned the King in Parlialiament against this Abuse of the Sheriffs and if they were willing to give up their right by reason of the great charge and trouble of sending their Members volenti non sit injuria does it therefore follow that no others liad any other right to Elect but what the Sheriffs Precept gave them only forsooth because no more Returns appear either in the loose Bundles of Returns or upon the Clause-Rolls or that therefore there were never any more Elections and Returns made than what Mr. Prin has here given us which is a very fallacious Argument considering how imperfect those Bundles of Returns are out of which he has extracted them a great many of the Precepts and Returns being no doubt lost and broke off the Files in the removing of the Records from one place to another besides the whole Bundles of Returns of several years in divers Kings Reigns that are quite lost or so mislaid that no body can
find them And for the truth of this Appeal to Mr. Petyt who assures me he found the Returns of the Knights Citizens and Burgesses to Parliament of the 23d of Ed. I. in an old Chest in the Exchequer among other things of a quite different nature which Mr. Prin never saw or else certainly he would have given in the Returns to this Parliament as well as he does the Writs of Summons to it and yet that even these were not always entred upon the Clause-Rolls but lay scattered up and down the Chappel of the White-Tower Mr. Prin himself confesses in his Introduction to his third part of his Parliamentary Register that he found no less than ninety five loose Original Writs for Elections and Returns of Knights Citizens and Burgesses to Parliaments and great Councils in the Reign of Ed. 3. which were never entred on the Clause-Rolls and lay there until he found them buried in dust and rubbish as well as oblivion in a confus'd Chaos scattered from each other and intermixed with many hundred thousands of other Writs and Records of various kinds Now what if these Writs and Returns had never been found so that by his own shewing it is no ways certain that there were never any such Writs issued or Returns made for the Counties Cities and Burroughs than those he had before sound and published and he himself also here confesses that by reason of the negligence of Record-keepers there are more Writs and Returns of Elections extant from some Counties than for others tho' all had the like Writs sent them And if this was so as to the Counties it was likewise so as to the Cities and Burroughs the returns of which are commonly endorsed on the back of the Precepts and where they were not so endorsed were much more likely to be lost and farther that the Clause Rolls are no exact Rule for the Summons of Knights or Barons of the Cinque Ports and Burgesses appears by Mr. Prins own shewing viz. That there are no Writs of Summons to the Cinque Ports entred on the Clause Rolls for most part of the Years of Edward 1 2 and 3d. in the List he has here given us of those Years now if so many considerable Burroughs as the Cinque Burroughs could be thus omitted what can we expect for most of the smaller and most inconsiderable Burroughs in England To conclude this Head if by Mr. Prins own Consession the Entries of Elections and Returns upon the Clause Rolls are so very imperfect and that the loose Bundles of Summons Precepts and Returns are far more imperfect so many of them being lost pray tell me how can Mr. Prin or any one else can frame any Argument from these that remain that there were never no more Precepts and Returns from any Burroughs than those he has published us But to come to his third Rank of Burroughs viz. such as for whom their appear no Precepts nor Returns till the Reigns of Edward the 2d Edward the 3d. and other succeeding Kings all which Burroughs he therefore supposes to have been all newly made in those Kings Reigns because there are no Precepts or Returns from them sooner it must there follow that the Sheriffs made all these Burroughs at their Pleasure but Mr. Prin has done well here to adde that they never elected or returned any before for ought he can find to the contrary since it might appear to the contrary for ought he could tell if the returns of the Sheriffs in the Reigns of the former Kings had not been so many of them lost since he here confesses there are no Original Writs and Returns for the Cinque Ports to be found before the Reign of Edward the 3d who yet sent Members to all Parliaments in former King Reigns or how can he tell but divers of these Towns might have been created Burroughs by the Kings special Writs or Charters tho now lost or perhaps unknown to this Author who could not be supposed to understand the Original of all the Burroughs in England their sending Members to Parliament but that he is certainly mistaken in making several Burroughs to have been but new because no Returns are to be found from them before the Reign of Edward the 2d may appear by these for Example First Litchfield which was long before that time a Bishops See and sure then if not a City yet an ancient and considerable Burrough Secondly Old Sarum which was in the Reign of Henry the 3d a Bishops See till it was removed and so consequently by your Rule New Sarum ought to pass for a City and if not was certainly a very ancient Burrough and as such sends Burgesses by Prescription to this day tho the Town be quite destroyed the like I may say of Gatton in Surrey which tho Mr. Prin will have but to be a new Burrough because no Returns appears to have been made for it by the Sheriffs till the Reigns of Henry the 6th yet this is no certain Rule since it was a very old Burrough and had anciently been so Considerable as that we find several great Councils held at it in the Saxon Times tho it be certainly now reduced to a small Hamlet of half a score Houses now I will leave it to your self to judge whether the Sheriff would have pitcht upon so small and inconsiderable a place as this to make a Burrough of had it never sent any Burgesses to Parliament before that Time And I doubt not but those Gentlemen that know the rest of the Towns he has there mentioned with Gatton could say as much for the Antiquity as Burroughs if you please to inquire about them But I have held you too long upon this Head and therefore shall proceed to those two that remains viz. The Ambition of Neighbouring Gentlemen to make as many Burroughs as they could that they might be chosen at them and the desire of such Towns to be made Burroughs to receive the advantages of the Money spent among them at such Elections the first of these in the Times we are now speaking of could be no cause of their sending Members to Parliament since it is certain that before the Reign of Henry the 8th none were Elected for any City or Town but Persons free of or actually Resident in such Cities and Burroughs as appears by the Statute of 1 Henry the 5th which does but recite and confirm this ancient Custom so that this Trick of chusing Members for Beeâ and Ale has been introduced but of late Ages viz. Since the time of Henry the 8th when Gentlemen began first to be chosen for Cities and Burroughs and if that is so the last cause falls off it self viz. the desire of such small Towns to Elect since if they could get nothing but rather loose by their sending Burgesses to Parliament and paying them their Wages as they must do as long as they chose from among themselves it is unreasonable to believe
to private Churches and if his Nobles or Followers had unjustly dissieâed any Bishop or Abbot of their Estates the King caused them to be restored again as appears by many Presidents of this kind which are to be found in Ingulphus and Eadmerus this being premised let us see in the next place what proportion the Lands belonging to the Church did in those days bear to the rest of the Lands in England now we find in Sprot's Chronicle as also from the old Legierbook cited by Mr. Selden in his Titles of Honour and particularly from that Secretum Abbotis formerly belonging to the Abby of Glassenbury and now in the Library of the University of Oxon that there were not long after your Conquest 60215 Knights fees in England of which the Bishops Abbots and other Church-men then enjoyed 28015. When it is supposed this account was taken then it will follow that in the Reign of your Conqueror there were above 28000 Knights Fees which belonged to the Church and in these we do not any where find that K. William dispossessed their Tenants of their Estates most of which were held in Fee under them and those Tenants were great and powerful men in their Countries and hence we read in the ancient Records and Legier Books of the Barons and Knights that held of divers Bishops and great Abbots several examples which you will find in Sir Henry Spellman Title Baro now it is certain that King William could not turn all these men out of their Estates and give them to his followers without committing sacriledge and invading the Rights of the Church which that King durst not commonly do so that the utmost that you can suppose he could do was to take the forfeitures of all such Tenants of the Church who had taken part with King Harold or had any ways committed Treason against himself which were far from the whole number of them so that here goes off at once almost a half of all the Lands held by Knights service which the King did never dispossess the ancient owners of to these may be also added all Tenants in ancient Demesne all Tenants in Socage as also all Tenants in Gavel kind which in those days made at least two thirds of the Lands of Kent which by the way was never conquer'd but surrender'd upon Terms to âare their ancient Customs and Tenures as Mr. Cambden himself acknowledges in his description of this County besides what was held in other Counties by the same Tenure as you will find in Mr. Taylor 's History of Gavel kind all which being not Tenures in chief by Knights Service are not Register'd in Domesday book nor does it appear that the owners were ever dispossessed of them to which may also be added the Lands of those smaller Thanes or Officers of King Edward whose names are found in Domesday book who held their Lands ratione officii To all these we may also add all such Norman Noblemen and Gentlemen who having come into England in Edward the Confessors time and having Honours and Lands given them by him had continued here ever since and these were so numerous that it was thought worth while by King William to make a particular Law concerning them that they should partake of all the Customs the Rights and Priviledges of Native Englishmen and pay Scot and Lot as they did of these was the Earl of Moâton besides many others whose names appear in Doomesday book and not only these men but also divers Cities and Towns held Lands of King William by the same Rents and Services as they had formerly paid in the time of King Edward the Confessor as Oxford for example But to give an answer to some of your instances as when you say that King William gave away whole Counties as all Cheshire to Hugh Lupus and the greatest part of Shropshire to Roger de Montgomery c. It is a great error to suppose that these Earls had all the Lands mentioned in these Counties to dispose of at their Pleasure and that they turned out all the Old Propâietors which it is certain they did not as I could prove to you by several instances of Antient English Families who have held their Lands and enjoyed the same seats they had in the Conquerors time so that you see there is a great deal of difference between a grant of all the Land of a County and that of the whole County what is meant by the former is plain but as for the latter it generally implies not any thing more than the Government of that County Thus whereas your Dr. would have it that the greatest part of Shropshire was given to Roger de Montgomery Doomesday says only that he had the City of Shrewsbury totum Comitatum and the whole County But that is soon explained by what follows totum Dominum quod Rex ipse tenebat where it is plain that by Dominium is meant no more than that power to govern it which King Edward had for otherwise the Grant of totum Comitatum had been sufficient M. I confess this is more than I ever heard or considered before concerning this matter but you do not give me any positive proof that at the time when Doomes day Book was made there were any Englishmen who held Earldoms or Baronies or other great Estates of the King or any of his great Men so that what you have said hitherto tho' it carry a great shew of probability yet is no positive proof against the Doctors assertion F. I shall not go about to deny what William of Malmesbury and Henry of Huntington so positively affirm that for sometime before the end of King William's Reign there was no Englishman a Bishop Abbot or Earl in England yet does it not therefore follow that it was thus thorough his whole Reign or if it were so that it will therefore follows that there were few Englishmen who when Domesday Book was made possessed any Lands in England but that in part of King William's Reign there were many English Earls and Barons appears by above a dozen Charters cited by Sir William Dugdale in the Saxon and Latin Tongues in his Monast. Anglic. which are either directed by K. William to all his Earls and Thains or else in Latin Omnibus Baronibus Francigenis Anglis or else Omnibus Baronibus Fidelibus suis Francis Anglis salutem the like Charters also appear of Henry J. and the Empress Maud his Daughter so that if Francigena and Francus signifie a Frenchman and Anglus and Englishman and if Fidelis does as your Dr. would have it signifie a Tenant in Capite then I think nothing is plainer than that there were for great part of King William's Reign both Earls Barons and Tenants in Capite of English Extraction But to come to particular persons it will appear by the Saxon or English names in Doomesday book as also by several recitals therein that there were divers English
was that of the free burrough or Tything wherein by the Laws of King Edward the Confessor the Tythingman or Head burrough was the Judge who as that Law tells us determined all suits and differences arising among Neighbours of the same Tything concerning petty Trespasses on one anothers grounds which if they could not be there determined might then be brought before the Court Baron which was incident to every Mannor and wherein the Suitors and not the Lord nor his Steward were the Judges and this as Sir Edward Coke tells us was first instituted for the ease of the Tenants and for the ending of Debts and Damages under Potty Shillings at home as it were at their own doors and let me tell you by the way that sorty Shillings was theo near as much as forty pound is now and if the business could not be ended here or was of too high a nature it was then brought into the Hundred Court where the Hundreder together with the Suitors were Judges and if they had not Justice there they might then remove it into the Court of Trithing or Lathe which was not the smaller Court of the Tithing mentioned nor yet the Court Leet but a particular Court consisting of three or four Hundreds which tho' now quite lost was in being at the time of the Statute of Merton as I shall shew you by and by and if the business could not be decided in the Trithing it was then removed to the Shire or County Court as Mr. Lambert shews in the Laws of King Edward which was then held as now from Month to Month and in which as well as in the Hundred Court the Suitors alone were Judges and tho' it can now only hold Pleas unless it be by Writ of Justices of any Debt or Damage to the value of Forty Shillings or above yet we âind from ancient Authors that this Court was so considerable that we have diverse examples of Causes between the greatest Persons of England and for Lands of great value begun and determined in this Court thus Eadmertes relates the great Trial at Pinnesden-heath between Odo Bishop of Bayenâ half Brother to your Conqueror and by him created Earl of Kent and Lanfrank Archbishop of Canterbury concerning divers Mannors in Kent and other Counties whereof Earl Odo had diseized the See of Canterbury in the time of Arch-bishop Stigand his Predecessor whereupon the Arch-bishop Petitioned the King that Justice might be done him secundem Legem Terrae and the King thereupon sends forth a Writ to summon a County Court the debate lasted three days before the Freemen of the County of Kent in the presence of many Chiefmen Bishops and Lords and others skilful in the Laws and Judgment passed for the Arch-bishop Lanfrank by the Votes of the Freemen Or primorum or proboâââ hominum as the Historian calls them So that to conclude this head if no suit could be begun in those days but what was first commenced in the Hundred Court no distringas could issue forth till three demands were made in the Hundred and from thence to be removed to the County Court where regularly all civil causes were try'd by the Suitors as the only Judges as well as in the Hundred Court and Court Baron then it will necessarily follow that unless you can prove which I think is impossible that all the English were at that time Slaves and Villains and had no Free-hold of any sort left them that all Pleading and Proceedings in any of those Courts being before meer Englishmen must have been in English and no other Language so that after all this great cry nor a twentieth part of the Suits in England were brought to London And as for Criminal Causes unless in cases of Treason all Murthers and other Felonies were Tryed and Judged in the Country either within the particular Jurisdictions of Bishops Abbots or great Lords or else of such Cities and Towns who had the Priviledges of Infangthief and Outfangthief together with Fossa and Furca that is a Pit to drown and a Gallows to hang Malefactors and if the offence was done in the body of the County they were then tryed and condemned in the County Court Justices Itinerant not being in use till Henry the seconds Reign M I must confess you have given me a great deal of light in these matters more than I had before but as I shall not dispute whether in the lowest Courts such as the Tythings and Court Barons the smaller English Free-holders might not Judge of Petty causes amongst themselves yet that in those greater causes were brought in the Hundred and County Courts which only the greater Fleemen of the Hundred or County were Judges who these Freemen were Dr. B. hath sufficiently taught us in his Commenes upon the Conquerors Laws as also in his Glossary viz. That they were Tenants in Military Service who in those times were the only great Freemen of the Kingdom and quite different from our ordinary Free-holders at this day These were the Men the only legal Men that named and chose Juries and served on Juries themselves both in the County and Hundred Court and dispatched all Country business under the great Officers I do not deny but that there might be other lesser Freemen in those times but what their quality was farther than that their Persons and Blood was Free that is they were not Nativi or Bondmen it will give a knowing man trouble to discover it to us we find in every leaf of Doomesday Socmen liberi homines Possessors of small parcels of Land but what there quality was and of what interest in the Nation Dicat Apollo no Man yet hath made it out nor can it be done by the account we have of ordinary Free-men for a Century or two last past And for further proof of this That none but Tenants in Capite or Military Tenants at least could be Judges in the County Court appears by the Laws of King Henry the first wherein it is expresly said Regis Iudices Barones Comitatus qui liberas in t is terras habent per quos debent causae singulorum alterna prosecutione tractari c. So that these Barons of the County being certainly Feudal Tenants this service of being suitors to the County and Hundred Courts was a service incident to their Tenures and then it will also follow that those Primores and probi Viri who as you have now related tryed this Cause between Earl Odo and Archbishop Lanfranc and who let me tell you were not only of the County of Kent but of other Counties in England where the Mannors and Lands lay as Eadmerus shews us and who were the Jurors in this great Cause consisted of the great Military Tenants that were not Barons and the less which were the Probi Viri for it can be no ways probable that the ordinary Freemen which made the greatest number and were all bound to
8. p. 580 581. W. All Burroughs that sent Members antiently held in Capite of the King D. 8. p. 557 578. W. They sent such Members by an inherent Right or at the Discretion of the Sheriffs Ib. p. 593. 604. C Cain W. he forfeited his Birth-right by the Murther of his Brother D. 2. p. 67. W. His Eldest Son was a Prince over his Brethren Ib. Canons of 1640. their validity discussed D. 4. p. 284. to 286. King Charles the Firsts pretended Commission to Sir Philim O Neal considered D. 9. p. 636 637. Great Charter of King Iohnâ W. it was the sole Act of that King or else made by the advice and consent of all the Freemen of England D. 5. p. 324. D. 7. p. 455 456. Great Charter of Hen. the Third W. all the Copies we have now of it were his or else Edward I. his Charters Ib. 461. Children how far and how long bound to be subject to their Parents D. 1. p. 45. to 52. Christians W. as much obliged to suffer for Religion now as in the Primitive Times D. 4â p. 230. to 234. Chester its County W. the Earl thereof could charge all his Tenants in Parliament without their consent D. 7. p. 501. Church of England W. Passive Obedience be its distinguishing Doctrine from other Churches D. 4. p. 292 293. Cities and Burroughs more numerous in the Saxon times than now D. 6. p. 379. to 400. W. They had any Representatives in Parliament before the 49th of Henry the IIId D. 5. p. 565 572. Whether Cities and Burroughs had not always had Representatives in the Parliaments of Scotland D. 7. p. 505. Clerici terras habentes quae ad Ecclesias non pertinent who they were D. 7. p. 450.451 Clergy a part of the Great Council of the Kingdom in the Saxon Times and long after D. 8. p. 544 to 550. W. None of the Clergy but such as held in Capite appeared at such Councils Ibid. W. The Inferiour Clergy had their Representatives in Parliament different from the Convocation Ib. 546 to 558. Commandment Vth in what sence Princes are comprehended under it D. 2. p. 106. to 109 111. Communitas Regni W. that Phrase in ancient Records and Acts of Parliament does not often signifie the Commons as well before the 49th of Henry the Third as afterwards D. 7. p. 412 to 415. W. That Phrase does not also signifie the whole body of the Kingdom consisting of Peers and Commons D. 6. p. 416. The Drs. proofs to the contrary considered 417 to 423. W. It does also often signifie the Commons alone D. 8. p. 572. to 574. Their Declaration to the Pope in the 48th of Edward the Third D. 8. p. 581 to 582. Their Petition to Henry the Fifth Their Protestation in Parliament in Richard the Seconds time 584. Commons of Cities and great Towns had their Representatives in the Assemblies of Estates of all the Kingdoms in Europe founded by the ancient Germans and Gothes Ibid 607 to 612. Commons their request and consent when first mentioned in Old Statutes D. 5. p. 329. W. Ever summoned to Parliament from the 49th of Hen. the Third to the 18th of Edw. the First D. 7. p. 522. Commons W. part of the Great Council before the Conquest D. 5. p. 369 372. The words Commune de Commune les communes do frequently signifie the Commons before the 49th of Henry the Third D. 6. 423. D. 7. 423 to 484. Common-Council of the whole Kingdom W. different from the Common-Council of Tenants in Capite D. 7. p. 437. to 474. Communitas Scotiae W. it always signified none but Tenants in Capite Ibid. p. 505. to 508. Conquest alone W. it confers a right to a Crown D. 2. p. 128 129. W. It it gives a King a right to all the Lands and Estates of the Conquer'd Kingom D. 3. 168. to 170. W. Any Conquest of this Kingdom was made by King William the First D. 10. p. 715. to the end Constitutions of Clarendon their Title explained D. 6. p. 430 431. Contract Originel W. there were ever any such thing D. 10 p. 695 to 709. D. 12. p. 809 8â3 Convention W. its voting King James to have abdicaâed the Government be justifiable D. 11. p. 809 to 834. W. Its Declaration of King James's violations of our fundamental Rights be well grounded Ibid. p. 816 832. W. It s voting the Throne vacant can be justified from the ancient constitution of the Government D. 12. p. 839 to 883. W. Whether its placing K. W. and Q. M. on the Throne may be also justified by the said Constitution Ibid. p. 883 to 894. W. It s making an Act excluding all Roman Catholick Princes was legal Ibid. p. 894 to the end Convocation Book drawn up by Bishop Overal its validity examined D. 1. p. 6 8. Copy Holders why they to have no Votes at Elections to Parliament D. 5. p. 513. Great Councils or Convention the only Iudges of Princes Titles upon any dispute about the succession or vacancy of the Throne D. 12. p. 895. D. 13. p. 917. to 919 924. Council of the King in Parliament what it was anciently D. 5. p. 334. Great Council or general Convention of the Estates of the Kingdom W. legal without the Kings Summons D. 5. p. 353. D. 12. p. 894. to 898. Curia Regis what iâ anciently was and W. it consisted of none but Tenants in Capite Ibid. 368. Crown W. it can by Law be ever forfeited D. 12. p. 833 834. D Defence of a Mans self in what case justifiable D. 3. p. 148 149. Declaration of the Convention setting forth King James's violation of the fundamental rights of the Nation W. justifiable or not D. 11. p. 816. to the end Private Divines their Opiânions about Passive Obedience and Resistance of what Authority D. 4. p. 291 294. W. Many of them have not quitted the ancient Doctrine of the Church of England declaring the Pope to be Antichrist vid. Append. Dispencing Power W. justifiable by Law D. 12. p. 119 to 828. Dissolution of all Government W. it necessarily follows from the Conventions declaration of the vacancy of the Throne D. 12. p. 890 891. Durham W. its Bishop could lay Taxes in Parliament on the whole County Palatine without their consents D. 7. p. 501 502. E Earls of Counties their ancient Office and Institution D. 5 p. 363 to 370. King Edward the Second being deposed W. any vacancy of the Throne followed thereupon D. 12. p. 158 to 861. Queen Elizabeth W. she had any Title to the Crown but by Act of Parliament Ibid. p 872 873. England when first so called D. 5. p. 362. English-Men W. they lost all their Liberties and Estates by the Norman Conquest D. 10. p. 753. to the end English Bishops Earls and Barons W. then all deprived of their Honours and Estates Ib. 756 to 762. English Saxon Laws W. confirmed or abrogated by K. William D. 10. p. 760. Estates of the Kingdom
but private single Persons which you your self granted and condemned as unlawful And therefore I desire to know who shall Judge when this Body or Major part of the People are thus assaulted so that they may justly defend themselves But indeed this Licence of taking up Arms is not only unpracticable but unreasonable too For it supposes that after the People have given up all the Power they had of Iudging what was bad or good for the Publick they have this Power still left in them which would make them at once both Subjects and Soveraigns which is a Contradiction F. Had you been pleased but better to have observed what I said the last time I spoke a great part of this Objection had been saved For I there expresly asserted that the Security of mens Lives Liberties and Estates being the Main Ends for which men entered at first into Civil Society and likewise desired to continue in it as being the only means why Civil Government is to be preferred before the State of Nature the People neither did nor can give up their Right of Iudging when these are invaded or taken from them And therefore you are very much mistaken to believe that at the Institution of Civil Society Men must have given up their Common senses and reason too of Iudging when they are like to be murdered or made Slaves of or their Fortunes unjustly taken from them by those whom they have ordained to be their Governours and I suppose you will not say that they thereby acquire a Power of altering the Nature of things or of making War Slavery or Beggery the means of procuring the Welfare and Happiness of the People any more than they can enact that hunger or diseases should conduce to the preservation of any mans life And therefore as the Judgment of these things was obvious and natural to every mans senses and understanding in the State of Nature so it is as plain they never intended wholly to give up all their Right of Judging concerning their own Preservation and Happiness and all means necessarily tending thereunto but only in such Cases and concerning such matters as are beyond the Power or above the Knowledge of every ordinary private subject thus in a disease tho' I give up my self to the skill and Judgment of a Physician yet I do it not so absolutely but that I still reserve to my self a Right of Iudging whether he gives me Poyson instead of a Purge and if Princes or Supream Magistrates were thus absolutely invested with an Arbitrary Power of doing whatsoever they pleased with the Lives Liberties and Estates of the People they would then be in a much worse condition under Civil Government than they were in the State of Nature as I have already proved And therefore there is no need of any such general Meetings or Assembâies of the whole Body or Representatives of the People to Iudge when these Fundamental Conditions of all Government are notoriously violated and broken Since it will be apparent to every mans sense and reason that is thus assaulted or injured And as for the other part of your Objection how the People can know when the whole Body or Major part of them is thus assaulted or opprest and being so assaulted or opprest what number are necessary to justifie this Resistance To this important Question I thus answer that if such a War or assault be made upon such a considerable part of the People as may justifie their Resistance to be much better for the Good of the Common-VVealth than that so many People should be destroyed Resistance certainly is then Lawful And the reason why every particular person when unjustly assaulted by his Princes Order or his Estate taken away by his unjust Edicts or Decrees ought not to make any publick disturbance only to save the one or recover the other I have given you before viz. because the publick peace is to be preferred before that of any private Person Yet even then such a private Person may very well defend himself if unjustly assaulted by Assassinates whom the Prince or other Supream Magistrates shall send to take away his Life without any just Cause or Legal Tryal tho' I grant he may not sollicit others to rise with him and take his part or help him to defend his Life or Estate Yet as a Reverend Dignitary of our Church very well observed No Man can want Authority to defend his Life against him who hath no Authority to take it away But much more when this assault or oppression is either made upon the whole People in general or upon so considerable a Part or Member thereof as the Common-Wealth could not well subsist without if it were destroyed in all such cases I suppose the People thus assaulted or opprest have a sufficient Right to defend their Lives and free themselves from that slavery and oppression they lye under and thus the People of Rome might very well have justified their Resistance of Nero's Incendiaries when he sent to Burn the City tho' they had been his own Guards We read likewise in the Hist. August that the Emperour Caracalla the People happening to laugh at him for his Folly in playing the Gladiator in his Circus Maximus sent his Guards to kill them So likewise in Herodian that upon another supposed affront he sent his Pretorian Bands to Murder most of the Inhabitants of Alexandria who came out to meet him with a Solemn Procession And I suppose no rational Man will deny but that if the Citizens of Rome or Alexandria had had Arms in their hands they might have Lawfully defended their Lives against these Murdering Guards For I think it was much better that those should be destroyed who were the Aggressors than that so vast a Body of Innocent People should be made Sacrifices to the undreasonable Passion or Revenge of a Cruel Tyrant So that when the oppression or Violence to Mens Liberties and Properties is general and notorious and affect the whole Body of the People I do then suppose that any Part of them that are sufficient to defend themselves may do it till they can find Assistance either from the rest of the People or else from some Forreign Prince or State who will vindicate their cause and come in to their Assistance And thus we read the Town of Brill in Zealand under the Conduct of the Count of Mark first revolted from the Tyranny of the Duke of Alva which example was afterwards tho' not immediately followed by most of the Cities of Holland and Zealand and the Courage and Resolution of this Count as also of the Citizens of this Town is highly commended by the Historians of that time for so nobly venturing their Lives and Fortunes to ââdiem their Coâutry from that slavery it then lay under till at last they were relieved and assisted by Queen Elizabeth to whom the Vnited Provinces owe that Freedom they now enjoy M. I shall not now dispute with
his Brother Regent in his Room because the former used sometimes in a Frolick to murder his Subjects out of the Window or as he met them upon the way and was besides found by Reason of incurable Folly to be utterly uncapable to govern Pray tell me did not the Servants and Subjects of these Princes then separate the Authority from the Person if not they must have let them alone to have done what they would the Consequence of which you may easily imagine M. These Instances of the Folly and Madness of Princes are the main things that you Gentlemen of Common-wealth Principles have to defend them withal but to shew you there is a great difference between Mad or Foolish Princes and Tyrants who are in their Right Wits I will shew you my Reasons why the one may be bound or resisteâ and not the other In the first place I suppose you will not deny but that Folly and Madness do so far incapacitate the Persons that are under those misfortunes that they hinder them from acting like rationâl Men much more from performing any of the functions of Civil Government In the next place they ought to be restrained for the Common good of their People as well as themselves lest they should not only Murder and Hurt their Subjects but themselves too And lastly because it is the highest Courtesie and âenefit that can be done such Mad or Foolish Princes to shut them up close and âinder them from exposing their Folly and Madness and reâdring themselves ridiculous to the World whereas a Tyrant whom I suppose in his Right Wits tho' he never so much ânslaves or oppresses his People yet Civil Govârnment may be well enough carried on and maintained under his Personal Conduct and as long as he hath Wit and Sense enough to govern he is so long to be obeyed as the Ordinance of God without any Resistance whatsoever F. But this much I suppose you will not deny but that this Power of resisting and shutting up Mad or foolish Princes is wholy exercised by the Law of Nature since I never heard of any Civil or Municâpal Law that made Provision for it M. I shall not much dispute that with you it may be so but what do you inferr from thence F. Why no more than this that if I can prove to you that there is no such great difference between Mad-men and Fools and ãâ¦ã incurable Tyrants as you imagine there is a like Râght in the âeople by the Law of Nature to resist and defend themselves againââ the one as the other and therefore I will examine each of your three Reasons one after another and see whether they may not as well be applied to such Tyrants whom alone I suppose may be resisted as to Mad-men or Fools and if they do I suppose you wiâl not deny the Consequence Your first Reason is that Folly and Madness do so far incapacitate their Reasons that are under those Misfortunes that they hinder them from acting like rational men much more from performing any of the functions of Civil Government Now pray tell me doth noâ Anger Lust Pride Cruelty and Ambition and unreasonable Self-love which are the Passions and Vices which disturb the Souls of Tyrants and make them to take a delight to enslave destroy and oppress their Subjects as much incapacitate their Reasons for performing these âunctions of Civil Governments as Folly and Madness themselves and I think I have already proved that when Princes bring things to this Pass they do as much deserve Tutors or Guardians to keep them from doing mischief and to manage their Kingdoms for them as the most Mad or Foolish Prince we have read of in History But the mischief of it is that such Tyrants not being Mad enough to be shut up like Mad-men or Fools nor yet having Iudgment nor Good Nature sufficient to perform the Main Ends of Civil Government by the greatness of the Rewards that they are able to bestow upon their followers they may soon bring the best Government into a State of War and Confusion And till then I do not allow their Subjects to resist them Your next Reason is that they ought to be restrained for the Common good of their People as well as themselves lest they should not only hurt or Murder their Subjects but themselves too Now pray consider if these Mad and Foolish Princes may be restrained and resisted because they only Murder or hurt a few of their Subjects that may come in their way then have not such Tyrants much greater Reason to be resisted and secured that through unreasonable revenge or Superstition make War upon and destroy the People for no other cause but because they will not Submit themselves to their unreasonable Lusts Or that burn Cities Massacre whole Towns of Innocent Subjects and enslave and oppress a late flourishing Kingdom ought not these as well to be restrained or resisted for the Common good of Mankind tho' perhaps they will not hurt or make themselves away as Mad men or Fools may Or can any reasonable Man show me why the Extravaganoles of such Mad or Foolish Princes may be resisted but the furious wicked and Tyrannical Actions of the other must be submitted to as the Ordinance of God Or lastly why a Natural Infirmity or Weakness such as Folly or Frenzy shall make a Prince uncapable of Government and why insufferable Tyranny which is but a moral Disability shall give Princes a greater Priviledge I cannot understand since the latter is much more destructive to the main Ends of Government i. e. the Preservation and good of the People than the former can possibly be As for your last Reason that it is the highest Courtesie that can be done to such Mad and Foolish Princes to shut them up and hinder them from exposing their Folly and Madness and rendring themselves ridiculous to the World I think the Reason will hold more strongly for the one than the other For as such Foolish and Mad Princes would if they could come to themselves thank those who had done them so charitable an Office as to resist them and shut them up So likewise I verily believe that if the Grace of God or some Natural Means or Accident could so far open the Eyes of such a Tyrant as to let him see the Folly and Wickedness of those Courses he takes against the People he would instead of being Angry thank his Subjects for resisting him because thereby they had not only hindred him from making himself any farther the Common-hatred of his own Subjects as well as his Neighbours but also from committing such hainous Sins and Offences against God as Murder Violence and Oppression To conclude I grant that as long as a Cruel or Wicked Prince can so far restrain his Vices and Passions as to maintain the Ends of Civil Government above mentioned he is to be Obeyed as the Ordinance of God But when he will set no Bounds to his Tyranny
Sculpture which takes it quite away I think I may very well maintain that it is still left entire to us and is not abrogated by the Law of the Gospel and that it was lawful before our Saviour's coming into the World I have proved by those defensive Arms made use of by David and the Maccabers And as for the Testimonies of the Fathers and the practice of the Primitive Christians of which the Reverend Primate hath made so ample a Collection in that Treatise you know shew me I thank you for your kind offer of it but I do not now need it for since I began to consider this Controversie with you I have carefully read over that Treatise and I cannot find that this vast Collection out of Prophane as well as Ecclesiastical Writers will prove any more than those Principles which I own to be true and yet will not impugne this Principle I here defend In the first part of this Discourse it is proved by Scripture as well as other Testimonies that the Authority of all Soveraign Powers is from God which I also allow yet doth it not hinder but that the Consent and Submission of the People is a necessary means or Condition of conveying this Authority when God doth not please to make or Nominate Kings himself 2 dly That the Persons as well as Power of Soveraign tho' wicked Princes is also Sacred and Irresistible yet this is to be understood whilst they continue to act towards their whole People as the Ordinance of God and by vertue of that Divine Commission which they have received from him In the second Part of this Discourse it is proved from Scripture Testimonies of the Fathers and other Authors that particular Subjects are bound to obey the Supream Powers in all lawful and indifferent things or else to submit and suffer the punishment in case of their unlawful Laws or Commands As also to bear with any Violence and Injury that may be offered to them rather than to disturb the publick Peace and Civil Government of the Common wealth 2 ly That in the time of the Primitive Church and before the Christian Religion was settled By Law and become part of the Civil Constitution of whole Kingdoms and States It was unlawful to Resist the Supream Powers in case of Persecution tho' to death it self for the Testimony of Christian Religion which I have also allowed through this whole Conversation Yet none of these Quotations as I can see do reach the matter in Controversie between us and assert it expresly to be absolutely unlawful for the whole People of any Kingdom or Nation to make use of defensive Arms and Resist the Intolerable Violence and Tyranny of the Supream Powers if they shall happen to make War upon their People and go about to take away and subvert the main Ends of all Government viz. the Preservation of Mens Lives Liberties and Civil Properties Neither do they any where assert that in limited oâ mixt Governments such as most of those now in Europe where the People by the fundamental Constitutions of the Government or the aster Concessions of Princes restraining their own absolute Power enjoy divers Priviledges and Liberties unknown to those who live under absolute Monarchies That the People may not upon the manifest Invasion of such Legal Right by force Resist and defend themselves and their just Right against the violent Invasion of the Prince M. I cannot deny but you have fairly enough represented the Chief Heads or Principles which the Reverend Primate ândertakes to prove in this Excellent Treatise And I think you have your self granted enough to confute all you have already said For in the first place if it be unlawful for every particular private Subject to Resist the Supream Powers it will likewise follow that it will be also unlawful for a whole Nation For a whole Nation is only a Systeme or Collection of particular Persons and Universals have no real Being in Nature but only in our Ideas So that if it be unlawful for every particular Person to Resist and defend himself in case he is injured and opprest it must be also unlawful for a whole People which consists of individuals to make such Resistance and it is a Rule in Logick that nothing can be affirmed of Individuals which may not also be affirmed of the whole Species So likewise if you grant That the Primitive Christians ought not to have Resisted the Supream Powers in case of Persecution for Religion I think it will likewise as well prove that they ought not to Resist upon any account whatsoever since certainly there cannot be greater Wrongs or Violences committed in the World by Supream Powers than to allow them an Irresistible Power of putting those to death that bear witness to the Truth of the Gospel since a whole Nation may be as well thereby destroyed if they prove firm to the Christian Religion and that the Prince continue obstinately Cruel And you might as well argue that Patient Suffering without Resistance ought not to be exercised in this Case because it is destructive to Mankind and the Quiet of a Civil Society as to argue from the same Reason that a whole Nation is not obliged to suffer without any Resistance when their Lives Liberties and Properties are invaded by the Supream Powers So that if the Primitive Christians might not Resist the Roman Emperours when they made so great a part of the People and were so vast a multitude in the Roman Empire in the time of Tertuliian as that he tells the Emperour Severââ in his Apology for the Christians to this effect That had they a mind to profess open Hostility and to practice secret Revânge could they want numbers of Men or sorce of Armâ Are the Moors the Marcomans or the Parthians themselves or any one particular Nation whatsoever more in number than they who are spread oâer the whole World They are indeed not of your way and yet they have silled all you have your Cities Islands Castlâs Towns Assemblies your very Tents Tribes and Wards yea the Pallace Senate and Place of Judgment Nor need I to mention at large the famous Story of the Thâbaean Legion who all of them suffered Death rather than they would either Sacrifice to Idols or Resist the Emperour âs Forces tho' they were between six or seven thousand Men and might have sold their Lives dear enough And if an Emperour may murder so many thousands without any Resistance I see no Reason why he may not put a whole Nation of Christians to death by the same Reason Nor will one of your Reasons which you bring for it signifie any thing that the Christians were to suffer without Resistance beâause Paganism was then the Religion Established by the Law of the Empire for if a Municipal Law as this was ought to be over-ruled by the Natural Law or self-defence when they happen to Clash then the Christians who lived under the Heathen Emperours might
Laws were made by the Title of them which runs thus Haec sunt judicia quae Sapientes Exoniae Consilio Adelâââi Regis instituerunt iterum apud Feuresham tertia vice apud Thundresfeldium ubi hoc definitum simul confirmatum est So also King Ethelred held at London a Great Council and made Laws Consilio Iussuque Regis Anglorum Aethelredi Procerumque suorum de tota Anglia c. Look also into the Title of King Ethelred's Laws in Bromptons Chronicle where you will read these words hoc est Concilium quod Ethelredus Rex Sapientes sui condixerunt ad Emendationem augmentum pacis omni populo apud Wodestocam in Mircena Landa id est in terra Mircenorum c. Where by Concilium must be understood Law or Decree To Instance in one more out of the same Author still from the Title to another Set of Laws made by the same King Hae sunt Leges quas Ethelredus Rex sapientes sui constituerunt apud Venetyngum ad Emendationem pacis felicitatis Incrementum See likewise in Monasticon Anglicanum the first Volum Anno Dom. 1024. where Canuâus Rex Angliae cum Consilio Decreto Archiepiscoporum Episcoporum Primatum Suorum expulit Clericos inhonesâe viventes ab Ecclesia Sancti Edmundi Monachos in illâ constituit And the same King Cââte bestowed divers Lands and other Priviledges on the Monastery then called Briadricesworth afterwards St. Edmunds Bury cum consilio Decreto Archiepiscoporum Episcoporum Abbatum Comitum aliorumque omnium Fidelium The like we find in a Charter of King Edward the Confessor by which He granted divers Lands and Priviledges to the Abby of Westminster Cum Consilio Decreto Archiepiscoporum Episcoporum Comitum aliorumque Optimatum From all which it manifestly appears that under the English Saxon Kings the Legislative or Enacting Power was in the Council of the Sapientes or Wites Conjunctly with the King and that none of these Saxon Kings could pass any Laws or make any considerable Alteration in the State without not only the Advice but Consent of their Great Council which then consisted of their Bishops Great Lords principal Freeholders and the Representatives of Cities and Towns as I shall prove another time and was not left to the King ad libitum to call whom he pleased thereunto And as the word Decretum signifies Decree or Order So likewise may the word Consilium here signifie something more than bare advice viz. Agreement or Appointment which if you please to peruse any ordinary Dictionary you may presently satisfie your self in But before I Dismiss this Argument I cannot but Remark upon your instance of King Edmunds making Laws alone because he there speaks in the first Person plural whereas if you will but Consult the Proem to those Laws once again you will I doubt not be satisfied of the contrary for the words are that having aske advice of the Council or Assembly of Clergy and Laicks that is seemed good to them all as well as to the King and therefore we thus Ordain by which it appears that the last words wherein the Ordaining part Resides refer as well to the whole Assembly as to the King M The Government of our English Saxon Kings is I confess very dark and obscure for according to our Ancient Historians they seem to have bin very absolute though when we come to look in oâ the Lâws themselves I confess they seem rather to have bin limited Kings than abâoliââe Monarchs though whether that Limitation proceeded from the Original Constitution of the Government or their own free consent and Concessions is a very great question though I rather enâline to the former and shall give you my Reasons for it when we come to Discourse on that Subject but in the mean time I must tell you in Reply to what you have said that if we consider the time not long after the Conquest you will find the Supream Legislative Power to have bin then whâly in the King as it is so still notwithstanding some Ambiguous expressions to the Contrary or else our Kings would not be what I think they really are Absolute Monarchs But to descend to times less obscure it is certain that when the Norman Conqueror first came in as he Won the Kingdom by the Sword so did he Govern it by his Sole Power His Sword was then the Scâpter and his Will the Law There was no need on his part of an Act of Parliament much less of calling all the Estates together to know of them after what Form and by what Laws they would be governed It might as well be said of him as in the flourishing and best times of the Roman Emperors Quod Principi placuit lâgis habet Vigorem that whatsoever the King Willed did pass for Law This King and some of his Successors being then ãâã ãâã ãâã ãâã ãâã and having a Despotical Power on the Lives and Fortunes of their Subjects which they disposed of for the benefit of their Friends and Followers Norman French and Flemings as to them seem'd best But as the Subjects found the Yoke to be too heavy and insupportable so they addressed themselves in their Petitions to the Kings their Soveraigns to have that Yoke made easier and their burden lighter especially in such particulars of which they were most sensible at the present time By this means they obtained first to have the Laws of Edward the Confessor and by the same that is to say by pouring out their Prayers and Desires unto them did they obtain most of the Laws and Statutes which are now remaining of the time of K. Henry the Third and K. Ed. I. From whom aâ also from Hen. I. and K. Iohn we may derive all those Priviledges we now enjoy most of which as they were issued at the first either in form of Charters under the Great Seal or else as Proclamations of Grace and Favour So do they carry still this mark of their first procuring by these Expressions the King willeth the King commandeth the King ordaineth the King provideth the King grants c. And when the Kings were pleased to call their Estates together it was not out of an opinion that they could not part with their Power or dispense their Favours as they thought good or abate any thing of the Soverity of their former Government without the approbation and consent of their People but out of a just Fear least any one of the three Estates ãâã mean the Clergy Nobility and the Commons should insist on any thing which might be prejudicial to the other two The Commons being always on the Craving Part and Suffering as much perhaps from their immediate Lords as from their King might possibly have asked Something 's which were as much derogatory to the Lord under whom they held as of their Soveraign Liege the King the chief Lord of all In this respect
over the King in the State of Nature than it doth for a Creditor in the like State to compel by force his Debtor to pay him a Sum of Money which he owed him in case there were no Civil Iurisdiction for him to Appeal to And let us farther suppose a Council or Parliament appointed who may Remonstrate to the King his Transgressions or Violations of the Law Yet this may be without any Coercive Power over his Person or of making War upon him since the King may if he please remedy all these Disorders by Redressing their Grievances and punishing the Authors of them So if he will wilfully persist in such Violations as strike at the Fundamental Constitution of the Government and do also go about to execute them upon the People by force this being in effect a making War upon them I suppose they have then a just Right to defend themselves against his Tyranny So that if these Rights or Priviledges we now enjoy were not the meer Concessions of the King's Grace and favour as you affirm but reserved as part of their Birth-Right at the Original Constitution of the Government as I shall prove all our Fundamental Laws were the People have then as much Right to defend them their Allegiance to him being upon that Condition either express or imply'd as any other Nation hath to defend their Lives Liberties and Properties against the Violence of the Supream Powers or any Commissioned by them as I hope I have already proved to you So that notwithstanding all that you have said to the Contrary I think the Notion of a mixt or limited Monarchy in the very institution may be agreeable to Reason and practicable too either in this or any other Kingdom And when you can prove the contrary by History or Matter of Fact as you promise I will give up the Cause M. You have Broached a parcel of Special Common-Wealth Notions in which you are every way out As first in making the King's Authority derived either from or by the Peoples Consent Whereas all our Ancient Lawyers call him God's Vicar or Lieutenant on Earth and not the People's and in the next place in supposing he may be Resisted by Force of Arms whenever the People shall think themselves Opprest or their Fundamental Rights and Liberties as you call them invaded it is contrary to the Express Declaration of the Parliament by two serveral Statutes in the 2d Year of the late King Charles And though you disclaim all Coercive Power of the two Houses over the King yet it is only to place this Right of Resistance in a more fallible and ungovernable Body viz. the whole People in their Natural Capacities which as it is more consistent with your Principles so it is more dangerous to all Supream Powers as well Common-Wealths as Monarchies as I have partly shewed you already and I hope may farther convince you before I have done But since I have not now time to shew you the falsity and absurdity of these Notions and to urge the Statute at large against Resistance in any Case Whatsoever I pray go on in the Method you have proposed and let me see how you can make out that even our Parliaments do not derive that Priviledge they now enjoy of giving their consent to Laws as also their very being to the Gracious Concessions of our former Monarchs F. That I shall do with all my Heart But first let me tell you that though I own the King to be God's Lieutenant in these his Dominions Yet I must likewise aver that it was only by the Consent and Voluntary Submission of the People of this Nation that the first Monarch begin where you will could obtain that Title And as for those Statutes you mention against all Resistance in any Case Whatsoever I doubt not but to shew you that it was never the intent of that Parliament to debar us from all necessary Resistance and Self-defence in cases of illegal Violence and intollerable Oppression unless you can suppose they were resolved to alter the Government and to put it into the King's Power to destroy all our Laws and Liberties and instead of a Lawful King to Set up for a Lawless Tyrant when ever he pleased But to come to the matter in Hand I shall shew you that it is not at all impossible or improbable that without any hinderance of that Power which is necessary to the King as Supream that he might for all that have bin limited as to the Legislative at the first Institution of the Government which I shall thus make out I do therefore in the first place suppose that the English Saxons being a free People after their Conquest of this Island as well Nobles as Commons did agree by their free consents and publick Compacts to set over themselves a Prince or Soveraign and to Resign up themselves to him to be governed by such and such Fundamental Laws Here is a Supremacy of Power set up though limited as to the manner of its Exercise 2. Then because in all Governments after Cases will arise requiring an Addition of Laws suppose them Covenanting with their Sâveraign that if there be any Cause to Constitute any New Laws he shall not by his Sole Power perform that Work but that they will reserve in themselves a Concurrent or Co-operative Power So that they will be bound by no Laws but what they joyn with him in the making of 3. I suppose that though the Nobles may personally convenâ Yet since the Commons being so Numerous cannot meet together in Person therefore for the doing of this Work it be agreed that every City of Considerable Town should have Power to Depute one or more to Act for the whole Body in the Legislature That the Nobles by themselves in Person and the Commons by their Deputies Assembling there may be Representatively the whole Body of the Kingdom with Power to execute that Authority reserved for establishing new Laws 4. Since the Occasion and need of making such Laws and Expounding the Old Ones could not be constant and perpetual therefore we may farther suppose for the avoiding of the inconvenience of three standing Co-ordinate Powers they did not Establish these Estates to be constantly existent but occasionally as the Causes for which they were ordained should require 5. Because a Monarchy was intended and therefore a Supremacy of Power as far as was necessary must be reserved in One it was concluded that these Estates should be still Assâmblies of his Subjects and Swearing Allegiance to him and that all New Laws which by agreement of these Powers should be Enacted should run in his Name and be called his Laws and they all bound to obey him in them when thus Establisht And Lastly it being supposed that He who thus was to govern by Law and for the furtherance of whose Government such New Laws were to be made should best understand when there was need of them and that the Convening and
under such as you mention you would I think scarce be contented to live where the Priests bare so much sway where there were no Cities or Great Towns but only scattered Houses and Habitations by Rivers Fields and Woods made of Dirt or Clay Arms of Trees and Stubble where there was no literature especially among the common People nor scarce Civility where there was no Cloathing but with Garments made of Beasts Skins No Food but Milk Pulse and Flesh without Art or Cookery where there was no Propriety in Lands no Money no Work for Lawyers as you will find if you read on in Tacitus and the 6th Book of Cesar's Commentaries And as for what you say concerning the beginning of the Saxon Kingdoms in this Island To this I Reply that Hengest and Horsa and those other Leaders who brought the Saxons into England were all of them of the Royal Line of the Saxons as appears by all our Historians and so if not Kings yet well able to Subsist And it was not the manner of those Countries to thrust out their Supernumeraries by force but to draw them out Regularly by Lot at such a Rate and Proportion and to give them Generals and Officers of Great Birth and Degree Nor is it probable if they had made Articles with their Followers that these Princes should have had such Absolute Authority as they had over the Lives and Fortunes of their Subjects in the more early times almost all the Priviledges of the English Nation being granted long since that time nay most of them since the Conquest Yea since the Barons Wars But as for what you say concerning the Gothick or Vandal Kingdoms since they relate nothing to our Government I need not say any thing to them nor doth it follow that if their Kings were limited or but upon Condition that ours must be so too F. I see you would fain evade the Authority of Tacitus concerning the People's having any share of the Government amongst the Saxons because forsooth that Nation is not particularly nam'd in his History But tho the Saxons are not particularly named by Tacitus Yet the Angli are there mentioned among those German Nations who Worship't their Common Goddess Hertha which that Author interprets to be Terra the Earth And you very well know that from these Angli or Angles the English Nation as well as name is derived But tho Tacitus who lived about the beginning of the Emperour Trajans Reign names not the Saxons yet Pâolomy who writ within 40 years after expresly mentions them placing their Country not far North of the River Albis and near the Place where all agree the Angli were Seated so that they were either all one and the same Nation or very little different But Etheliverd Quâsâor one of our Ancientest English Saxon Historians in his first Book makes this Nation of the Saxons of a far wider extent and that it reacht from the River Rhine all along the Sea-Coast up to Donia now called Denmark But since I see you cannot well tell how to evade this Testimony of Tacitus but by affirming that the Government in Germany was a Democracy and that the People had the only Sway in it is a great mistake since he expresly mentions their Kings and Princes and there only speaks of the manner of Transacting all publick Affairs in which it is true the People as it is very well known by our Ancient Histories had formerly a greater Share than now Yet doth he not thereby exclude the Prince and Nobility from having also their Shares in it And as for what follows in Tacitus of the Royal Power auctoritate suaâendi magis quam jubendi Potestate I suppose you cannot deny but that Priviledge yet remains to us since the King cannot command the Parliament to make what Laws or give him what Money he pleaseth and therefore that doth not make it a Democracy much less the Priests presiding in their Assemblies which is no more to be wondred at than that the Bishops have still Votes and their share of Legislature in the House of Peers Or that a Bishop when Chancellor or Keeper should be Speaker in the House of Peers Or supposing that their Priests had more Power among them than the Christian Clergy had after they were Converted doth it therefore follow that it was not the same Government or that it must therefore be so intolerable that I would not have bin willing to have lived under it Since I must tell you I am not against Civil Offices though exercised by Clergy-men as far as the Business of their Function and the Canons of the Church will permit As for the rest which you object concerning the Barbarous living of the Ancient Germans it either makes nothing to the matter in hand or else against you since it proves plainly that Absolute Monarchy was not the first Government among all Nations as you suppose Nor doth it therefore follow that because these People were Rude and Barbarous therefore they had not the Wit to prefer Absolute Monarchy before all other Governments since their Conquerors the Romans who sure were a Civiliz'd People did likewise as much abhor it But as for what you say against Hengist and those other Leaders who brought the Saxons into Britain being Elected Kings by their Followers is nothing but meer Guess and Conjecture For that they were not Kings at home you your self grant and whether they were able well to Subsist at home or not is nothing to the Purpose It is plain they thought they could mend their Condition or else would never have left their Country And tho it be granted that Hengist with his Followers came not over as Enemies but Auxiliaries to the Britains Yet it is not therefore more likely that they were chosen by the King of their own Nation than that their own Followers should afterwards Elect them especially when the one is agreeable to our own Historians and the other not For Mattheus Florilegus tells us that Horsus being slain the Saxons Fratrem suum Hengislum in Regnum Cantiae sublimaverunt that is they Elected or Advanced him to be King if I understand any thing by that word and this agrees with the Polichronicon of Ranulph Higden who places the begining of Hengists Reign immediately after the Death of his Brother Horsus viz. An. Dom. 465. Eight years after the coming of the Saxons into Britain and that the rest of the Saxons who came hither after had no better Title then Election I could farther prove if the time would give me leave For they that will read the Ancient Accounts of the Saxon Nation and what Government they had among them long after the time of Cesar and Tacitus will find that it was impossible that they should be thus Created Kings before they came over since at that time they had no such things as constant Kings amongst them for in those times it was rather an Aristocracy then a Monarchy
Constitution to have bin in all the Neighbouring Kingdoms in Europe which have bin raised according to the Gothic Model of Government upon the Ruins of the Roman Empire now let us look into Scotland and there we shall find this Institution as Ancient as any History or Record they have If we pass into France we shall find their Assembly of Estates or Great Council to have bin as Ancient as their first Kings and to have had as much Power as any where else in Europe Since they not only frequently Elected but also Deposed their Kings of the first Race and disposed of the Succession of the Crown as they thought fit If we look into Spain we shall find in the two greatest and most Considerable Kingdoms viz. Castile and Arragon the like Assemblies the Power of which was so great in the latter that they could even Depose the King himself if he Tyranniz'd over or Oppress 't them If we go more Northward we shall find in the Ancient Kingdoms of Denmark and Sweden and Norway that their Assembly of Estates or Dyets Elected their Kings and could likewise Depose them till those Kingdoms became Hereditary which was but of modern times I shall omit Poland because perhaps you may dispute whether it is a Kingdom or a Commonwealth But if we pass into Hungary which was Instituted by the Huns a Nation of Gothic Original we shall find not only the like Assembly of Estates as in the other Kingdoms but also that they had a Magistrate called the Palatine who was as it were the Conservator of the People's Liberties and who could Resist even the King himself if he invaded them and which is also very remarkable in all these Kingdoms except Denmark the Representatives of the Cities or Principal Towns which constituted the third Estate or Commons in those Kingdoms had always a place in those Great Councils So that to conclude it is almost impossible to conceive how these Kingdoms I have now mentioned could all agree to fall into the same sort of Government about the same time unless it had proceeded from the particular temper and Genius of the Germane and Gothick Nations from which they were derived Or who can believe that all these Nations and their Kings finding the like Conveniences from these Great Councils and Inconveniences by the want of them should all Conspire to set them up in each of these particular Kingdoms M. I will not deny but that the Institution of Great Councils or Assemblies of the Estates might be as Ancient as the Government it self in several of those Kingdoms you mention which were at first Elective but what is that to England where our Monarchy hath bin by Succession from the first Institution of it and not Elective as you suppose Nor do I much value the Authority of the Mirrour as to the Great Antiquity he Ascribes to this Assembly of Counts or Comites as Bracton calls them and in which by the way no Commons are mentioned And tho I grant the Iudicial Power of the House of Peers is very Ancient Yet that it wholy proceeded at first from the Indulgence of our Kings appears from hence that there was always a necessity of the King's Presence in Parliaments which is very well proved by Sir Robert Cotton in a Learned Treatise written on that Subject wherein he proves that in all Consultations of State and Decisions of private Plaints it is clear from all times the King was not only present to Advise but also to Determine And whensoever the King is present all Power of Iudging which is derived from his ceaseth the Votes of the Lords may serve for matter of Advice the Final Iudgment is only the Kings But indeed of late years Queen Mary and Queen Elizabeth by reason of their Sex being not so fit for publick Assemblies have brought it out of use by which means it is come to pass that many things which were in former times acted by Kings themselves have of late bin left to the Iudgment of the Peers who in quality of Iudges Extraordinary are permitted for the Ease of the King and in his Absence to determine such matters as were Anciently brought before the King himself sitting in Person attended by his Great Council of Prelates and Peers And the Ordinances that are made there receive their Establishment either from the King's Presence in Parliament where his Chair of State is constantly placed or at least from his Confirmation of them who in all Courts and in all Causes is Supream Iudge All Judgments are by or under him and cannot be without much less against his Approbation The King only and none but He if He were able should judge all Causes saith Bracton so that nothing seems plainer to me than that the Iurisdiction which the House of Peers have hitherto exercised for the Hearing and Determining all Causes as well Civil as Criminal by way of Appeal not only between Subjects but also in all Accusations against the Lords themselves proceeds wholy from the Kings which may appear by an Ancient Precedent mentioned by Abbot Brampton in his History It is the Case between King Edw. the Confessor and Godwin Earl of Kent whom the King accused for the Death of his Brother Prince Alfred before the House of Peers and there you will find that after the Earl had put himself upon the Iudgment of the Kings Court the King thereupon said You Noble Lords Earls and Barons i. e. Thanes of the Land who are my Liege-Men now gathered here together and have heard my Appeal and Godwin's Answer I will that in this Appeal between us ye Decree Right Iudgment and do true Iustice And upon their Judgment that the Earl should make the King sufficient Satisfaction in Gold and Silver for the Death of his Brother the King being thereof informed and not willing to contradict it the Historian there sayeth He ratified all they had judged I could give you many other Precedents of latter Date were it not too tedious But this is sufficient to shew that what the Pâers acted in this matter was by the King 's Sole Will and Permission I shall only conclude with one Precedent more in Case of some what alike Nature It is that of Hen. Spencer Bishop of Norwich 7 Rich. 2d who was accused foâ joyning with the French The Bishop complained what was done against him did not pass by the Assent and Knowledge of the Peers whereupon it was said in Parliament that the Cognisance and Punishment of his Offence did of Câmmon Right and Ancient Custom of the Realm of England solely and wholy belong to our Lord the King and no other From all which I infer that the Iudicial Power exercised by the House of Peers is meerly derivative from and Subservient to the Supream Power resiââing in the King From whence it also follows that if the Peers have no Power nor Honour but what proceeds from the Prince and that the Commons
that because the Emperour Theodosius as likewise divers of his Predecessours did Nominate Bishops to Sees therefore they did likewise receive from them all the Authority they had of appearing and acting in General Councils which I am sure you are too good a Church of England Men to affirm M. I must confess I never did so closely examine the Ancient Form of conferring of Bishopricks before the Conquest as I find you have done and I will better Examine your Authorities and if I find this Custom to have been constant and uniform I shall come over to your opinion tho' I doubt it will not prove to have been so general as you would make it since by the Authority you have now brought out of Mat. Paris it appears that it was the King who gave leave to this Election of Bishop Wulstan in the Great Council which I am not yet convinc'd did then take upon them to meddle in Ecclesiastical matters without the Kings Consent but since you have spoken enough concerning the Right and Antiquity of the Bishops sitting in our Great Councils it is time you now speak of the Right of the Peers or Temporal Lords which certainly could have no place there but from the Favour and Concession of our Kings So that whether we consider those Lords in the Saxon time as Rulers of Counties called in old English Earls or Aldermen in Latin Duces or Comites or else as Judges or Counsellors called in old Saxon Wites or Wisemen in Latin Sapientes or lastly as Thanes in Latin Ministri who were either Military Tenants or Civil Ministers or else Officers of the King in his Court or other Employments none of them were Hereditary in those times but all of them either depended upon the King's VVill or else owed their Honours and âstates to his Favour F. I hope notwithstanding the Confidence you put in this part of the Argument that it hath no more weight in it than the former For tho' I grant there was no such thing as Hereditary Earldoms before the coming in of the Normans so that tho both the Earls and Aldermen might have places in the Great Councils ratione officii as the Earl Mareschal of England has at this day and not by Tenure as they did after that time Yet I very much doubt whether they sate there only ratione officii and not as Thanes or by reason of their great Lordships or Estates in Lands but if they sate there as Earls or Aldermân yet might they not be the only Persons that sate in those Councils by that Title For there were besides these Aldermen of Cities and Burrougâs who were Elected by those Places and who it is very likely appeared for them as their Representatives in those Councils until by Succession of time those Towns began to send two Burgesses in their stead some Footsteps of which still remain in London where the Aldermen of every Ward are first proposed to be Elected Parliament Men before any other and it is certain that these Aldermen in the most Ancient Cities as London York Lincoln â are not Elected by any Grant or Charter from the Crown but by an immemoâial Right of Prescription But admitting that these Earls or Aldermen appeared in these Councils by reason of their Offices or Dignities which the King conferred upon them yet doth it not prove that the very Office it self proceeded ãâã from him since we find the Authority of those chief Men whom ãâã calls Princes and which Answer these Earls to have been used among the Ancient Germans long before when he tells us in the same Chapter where we cited the rest Iura per Pagââ Viâosque Principes reddunt âenteni Singulis ex plebe Comites Consilium simul auctoritas adsunt Which exactly answers our County and Hundred Courts under the Saxon Kings wherein the Alderman of the County or his Deputy the Sheriff preâided and the Free Men of the County or Hundred were the Iudges of all matters of Fact So that tho the King might appoint these Princes or Governours of Provinces or Counties yet doth it no more follow that they owed their Being and Place in the great Council wholy to his Will than as I said before supposing that the King had Anciently the Nomânation of all the Bishops and Abbots in England that therefore they must also owe their Place in our great Councils or Synods wholy to them since the King performed both of them as a Publick Trust committed to him by the Common Weal in the one case as much as in the other But indeed I think the greatest part of the Members of this Assembly besides Aldermen and Burgesses for Cities and Towns consisted of those Thanes whose Names are often found in the Subscription of the Anâient Charters of our Saxon Kings after the Principes Duces and Comâââs and that tho many of them might be the Kings Feudal Thanes or ãâã Grand Serjeanty or Knights Sârvice in Chief as Mr. Sâlden tells us in his Titles of Honour yet that Author no where excludes the ãâã ãâã ãâã ãâã ãâã or ãâã ãâã ãâã ãâã ãâã i. e. middle or less Thanes from having Voices in those Assemblies who were afterward Stiled Vavissours or Lords of Townships afterwards called Maunors with Courts annexed to them under the Names of Sac Soc which were the same with our Court ãâã and Court-Baron Especially if you please farther to consider what a vast nâmber of Alâdariâ or Free Tenants there were then who held their Lands Discharged of all Services but the Common Burthens and Taxes of the Nation none but the Lands of the Kings Thanes being held by Military Sârvices before the Entrance of the Normans So that whoever will but consider the Nature of our Saxon Councils will find that the Greatest part of the Persons that appeared there did not owe their ãâã to their being the King's Ministers or Officers as you suppose but to their holding such Lands and Possâssions as Capacitated them and gave them a Right to have places in those Great Councils And that this was ãâã we need go no further than the Laws of King Athelââan where you will find Gâmility it self annexed to an Estate in Land For if you will but be pleased to Consult King Athelston's Laws you will there find that if a Villaâaus or Câeorl could so thrive as to get an Estate of five Hides in Lands he was reckon'd a Thane i. e. a Gentleman or Nobleman as they were promiscuoully reckoned at that time So that tho I suppose there might not be in those times that exact distinction between Peers and Commons as there hath bin established since the coming in of the Normans Yet was it the same thing in effect since the Bishops Earls or Aldermen of Shires tho not enjoyed as Hereditary Honours might make then the Greater Nobility or Peers as the Thanes were the Less Nobility Gentlemen or Freeholders who all appearing in person might together with
prolix already which the abuse your Dr. hath put upon these words would not permit me to avoid But now we have cleared most of the Terms in dispute between us I hope we may proceed with greater Certainty M. Though your Discourse hath been long yet since it is so essentially necessâry to the right understanding the matter in hand I am well satisfied and I shall more fully consider the account you give of these words another time but a present give me leave to tell you That suppose I should admit that those words on which you have now given Interpretation of divers Authors may sometimes be taken in the sense you have now put upon them and that consequently the Commons might be represented under some of those general Names Yet am I not satisfied how the Aldermen and Magistrates of Cities and Boroughs could be included under this word VVites since in the Auctuary to the 35 Law of Edw. the Confessor 't is said Erant aliae potestates dignitates per Provincias Patrias universas per singulos Comitatus totius Regni constitutae qui Heretoches apud Anglos vocabantur Scilicet Barones Nobiles insignes Sapientes c. And Gregory of Tours Rodovicus and many of the foreign ancient Historians mention Sapientes only as Lawyers Counsellors Judges and among the modern foreign Lawyers Hottomon and Calvin say expresly they were such But perhaps not of the Inferior Ranâ no more than the Saxons Sapientes were of which their ãâã ãâã ãâã ãâã ãâã only consisted And we have at this day the Iudges and King's Council and other great Lawyers that sit in the Lord's House and are assistant to the Parliament when there is occasion Nor have you yet brought any proof that the Cities or Towns then sent their Representatives to the great Councils in the Saxon times by this or any other Title But as for the Knights of Shires though I grant the Treatise called Modus tenendi Parliamentum mentions such Persons to have been present in Parliament in the time of K. Ethelred yet by that word Parliament so often used by the Author of that Treatise and divers other Circumstances it may be easily perceived that the Author lived but about the time of Edw. 3. or Rich. 2. as Mr. Selden in his Titles of Honour and Mr. Pryn in his Animadversions to Sir E. Cook 's 4th Institutes have very fully proved so that admitting that your Thanes or Lords of Towns did then appear in those Councils for themselves and their Tenants yet could they not be properly said to be their Representatives because as I told you before they were never chosen by them whereas now the ordinary Freeholders of forty Shillings a Year and the Freemen and Inhabitants in Cities and Towns have the grââtest share in the Election of Knights Citizens and Burgesses And as for those Thanes you mention they or those under whom they claimed owed their Estates wholly to the Grants of former Kings and held their Possessions from them by some Tenure or other And by virtue of this Tenure it was that all the Lands of England were liable even those that belonged to the Church to those three Services anciently called Trinoda Necessitas viz. Expediâââ Castelli Pontis extructio that is Military Service against a Foreign Enemy and the Repair of Castles and Bridges and subject to the common Services of the Kingdom And that the Earls and Chief Thanes did hold their Lands by Knights or Military Service appears by the reliefs of the Earls and Thanes exâârest in the Laws of King Cnut in Sir H. Spelman's Councils So that if all the persons who held those Lands owed them wholly to the King's bounty it seems plain to me that they must likewise owe their places in the great Council to the same Original F. I think what you have now farther urged will be of no great moment against my Opinion for as to the Authority you bring from the Addition to that Law of Edw. the Confessor it is plain by the word Barones that it was added long since that time that word not being commonly in use till some time after the Norman Conquest But letting that pass it is plain by the rest of the Law if you would have been pleased to have read it out that these Heretoches here called Barons were no other than ordinary Gentlemen or Thanes which then answered the word Barones And these as this Law it self expresly tells us were chosen by all the Freemen in the Folemote or County-Court And therefore tho I grant they might be men of Estates yet there was no necessity of their being Lords or Noble by Birth nor is it likely that the people would have chosen their Earls or any other of the like Order to command them when they had sufficient choice of Thanes or Gentlemen in their own Countrey to command the Military Forces of it And tho it is true these Gentlemen are called Nobles and remarkable Wise Men yet this according to your own shewing doth not exclude others and those of a far different Profession viz. Counsellors Lawyers and Iudges all which you suppose had then Places in the Great Council as they have now in the Lordâ House And if this Word might comprehend both Sword-men and Lawyers I cannot see why it may not also take in the better and richer sort of Citizens and Magistrates who in that Age as was notorious were elected by their respective Corporations And I have already proved that these were called Sapientes in other Countries and I see no reason why they âny not have been called so here too But that the King's Judges and Counsellors could have no Votes in the Saxon Great Councils I have already given a sufficient Reason to the contrary But I shall now farther shew you That the Cities and Boroughs in the Saxon times being so much more numerous and considerable than they are now must needs have had according to the custom of those Times a considerable share in those Great Councils since in them consisted a great part of the Strength and Riches of the Kingdom and were many more than they are at this day for Bede ãâã in the beginning of his History That there were in England long before his time 28 Famous Cities besides innumerable Castles and walled Towns of note many of which tho now extremely decayed or quite mined were then very considerable the greatest and richest part of the Nation inhabiting in those times for the most part in Cities or great Towns for their greater benefit or security and the greater part of the Lands of England in the Saxon times and long after ây incultivated and over run with Forâsts and Bogâ so that the Inhabitants of those Cities and Boroughs being them so considerable for Estates in Lands as well as other Richââ could not âe excluded from having Places both in the Brittish or Saxon Great Councils what man of Sense can
believe that the Ancient and Potent Cities of London Tââ Cânterbury Lincoln c. Should ever be excluded from having any hand in the Great Consultation of giving Money and making Laws and for the publick defence of the Kingdom in the Saxon times any more than they are now And therefore we find that in all the Kingdom of the German or Gothick original the chief Cities and Towns have still sent Deputies to the Diets or Assemblies of Estates as I said but now In the next place tho I do not positively assert that there were Knights of Shires before the Conquest yet am I not convinced that there were none For tho I confess the Treatise you mention appears to have been written since the coming in of the Normans yet might the Substance of it have been much older than the times of Edw III. and Rich. II. or else certainly King Hen. IV. or his Chancellor for him would never have been at the trouble of transmitting a Copy of this said Modus into Ireland under the Great Seal which is thought to incroach so much on the Prerogative had he not been very well informed of the Antiquity as well as Authority thereof And therefore it might very well be written about the Time of Hen. III. from some Ancient Historians and Records not now extant tho the Copies we have of it may be of no longer standing than the time Mr Selden mentions But admitting that there were no Knights of Shires before the Conquest and tho the Thanes who I suppose made the greatest Figure in the Wittena Geâââer were not Earls or chief Thanes that is of the Greater Nobility yet they were great Freeholders and tho Commoners yet Gentlemen and of the Lesser Nobility in the same sense as Gentlemen or Knights of Shires are now And the not elected by the Countries yet might be as well esteemed their Representatives as they are now of Freeholders under 40 s. per Annum Lease-holders and Copy-holders for years who have no Votes at the Election of Parliament men whereas these Thanes were then the chief if not the only Possessors of all the Freehold Estates in the Kingdom Nor is it any material Objection to say that these Thanes might at first owe those Estates to the Grant of the First Saxon Kings and might also after a sort hold their Estates of them as Heads of the Commonwealth by such Services as were setled by Publick Laws yet does it not therefore follow that they owed their very right of coming to the Great Council wholly to the Kings Favour For in the first place it is to be considered that tho the First Saxon Kings conquered this Island from the Brittains yet those that assisted them being only Voluntiers the chief Officers or Commanders of them might not only deserve but also capitulate for their Shares in the Land so conquered And these being given out by the King according to each mans quality condition or desert might constitute those who were called the King's Thanes as those who held likewise under them were the Middle Thanes or Vavassors Supposing till you can prove the contrary that these had Places in the Great Council as well as the other and you might as well argue that they could have no Places there but by the favour of their Lords Whereas I have already proved that an Estate of Five Hides in Land of whomsoever holden made a Thane or Nobleman of the Inferior Rank And we find by the same Laws of King Athelstan his Weregild or Price of his Head was valued but equal with that of a Mass Thanes or Priest viz. at 2000 Thrymsas So that a sufficient Estate in Land did not only make a man a Gentleman but also give him a place in the Great Council And there were besides all these several Alodoril who held their Lands discharged from all Services and could sell or dispose of them without the consent of the King or any other inferior Lord and are those mentioned in Domes-day Book qui potuit ire cum terra que ââbut Nor is your Argument conclusive That because in those times as well as now all Lands were held either mediately or immediately of the King and were chargeable with those three general Services you mention for the publick safety and good of the Kingdom that therefore not only all mens civil properties but also their right of coming to the Great Councils must wholly depend upon the King's will Since I have already proved that the first Saxon Kings by their conquest of the Kingdom could not acquire the sole property of all the Lands thereof to themselves tho they might be made use of as publick Trustees to distribute them according to those mens qualities and deserts who had helped them in the Conquest So that when they were once possessed of such Estates they had immediately thereupon a right to a place in the Great Council the burthen of the Government lying chiefly on such as had Estates in Land And that many others besides the Kings Thanes or Great Lords had places in the Great Council of those times appears as well by the name of Mycel Synods ââ Wittena-Gemots which are rendred by our Ancient Glossarists Numerosa or Popuââsa Conventio as also the Titles and Conclusions to divers of the Titles of those Great Councils in the Saxon Times where are often mentioned after the Comites Proceres Terrae aliorum fidelium infinita multitudo which must certainly take in many more than the Kings Thanes Judges or other of his Great Men who were then but a few in comparison of all the rest of the Freeholders of England M. I will not longer dispute the probability of what you say all the difficulty lies in the proof of the matter of Fact For in the first place I deny that any other of a less Degree than the King's Thanes of chief Tenents had any Places or Voices in the old English Councils Nor can you find as you your self are forced to confess in our Saxon Laws or Ancient Historians of those times any Representatives of the common people mentioned such as are now much less Citizens or Burgesses for any City or Burrough in England And therefore what you say concerning the Riches or Power of the Cities and Towns before the Conquest tho perhaps it might be true yet doth it not therefore follow that they must then send their Representatives to the Great Councils Nor is it any Argument to prove that they did because great Cities and Towns do or did lately send Deputies to the like Assemblies in other Countries since our Government might not only originally differ in that from theirs but that also the sending of those Deputies might be granted by some later Princes long since the time of the first beginning of those Kingdoms and I do believe will prove so if closely look'd into And in Denmark which you know was an Elective Kingdom the Cities and great Towns never sent any
the people then made a considerable part of the Great Council from the very beginning of the Saxon times M. Pray Sir will you give me leave to answer your Questions one by one as you go for fear I should not only forget them but also tire you with too long a Speech In the first place therefore give me leave to tell you that you are very much mistaken to suppose that by the Word Populus is here meant the common People or Vulgar Whereas when Clerus and Populus are used together in our Ancient Writers of those times it signifies no more than a Common Council of the Clergy and People or Laity and not the Common People for then the Lords or Great Men would have been quite left out of this Council as certainly they were not and so when Clerus and Populus are used together and thus contradistinguished then they are expressive of two different Estates or Conditions of Men or Christians the Clergy and Laity or secular Men and those were the Optimates Terrae the chief Men of the Land before expressed Neither was this Council held under a sole Saxon Monarch but under Ethelbert King of Kent only and that but eight years after Augustin's coming hither and above two hundred years before the Seven Kingdoms were united into one Monarchy F. I am not at all concerned at this Answer since I can prove that by the Word Populus must be here understood somewhat more than Kings Noblemen and Iudges viz. the Representatives of the Commons likewise or else the Saxon Witena-Gemotes were not what their Titles speak them to be Common or General Councils of the whole Kingdom that is of all the Estates or Orders of it there but only a Convention of the Bishops and Great Lords And therefore if the Word Clerus did then comprehend all the Clergy both Superior and Inferior i e. as well the Bishops as Abbots Priors Deans and Clerks for the Secular Clergy and Cathederal Chapters c. I pray give me a Reason why the Word Populus when put alone must be wholly confined to your Earls or chief Thanes and may not also take in the Middle or Less Thanes Freeholders or Lords of Townships and the Representatives of Cities and Burrough Towns and why not with as much reason as that the Word Populus amongst the Romans took in the whole Body of the People of Rome both Patricians and Plebâians when assembled in their Comitiis Centuriatis to make Laws or create Magistrates The rest of your Argument is not very material for tho I grant this Council was held before the Heptarchy was united into a Monarchy yet I think it is very easie to prove that as all the Saxon Kingdoms consisted of several Nations of the same Language and Original so were they likewise under the same Form of Government And that Councils consisted of the same constituent Members ãâã I shall prove to you from the Kingdom of the West-Saxons from which was the Foundation of our present English Monarchy And for this I shall give you the Authority of Will of Malmesbury and H. Huntingdon who 't is highly probable had seen the ancient Histories and Records of those times and they both agree in the Relation of the Deposition of Sigebert King of the West-Saxons for Tyranny and Cruelty Anno. 754. the Words are remarkable which pray read Unde in Anno secundo ipsius Regni congregati sunt Proceres Populi Totius Regni provida deliberatione unanimi consensu omnium expulsus est a Regno Kinewulfus satus ex Regio sanguine electus est in Regem where you may observe a plain difference made between the Higher Nobility here called Proceres and the Representatives of the People here stiled Populi as also from another Authority of a Great Council held under the same King Aethelbert as it is mentioned by Roger Hoveden Domestick to King Hen. II. in the 2d Part of his Annals where among the Laws of King Edw. the Confessor and which he writes to have been confirmed by King William I. you will find under the Title de Aptbââs de aliis minutis Decimis which are there said to be given to the Clergy by former Kings and particularly by this King Ethelbert these Words Haec entân Sanctus ãâã praedicavit docuât haec concessa sunt a Rege Baronibus Populo So that it Populus âere doth not signifie an Order of Men contradistinct from the Barons or Great Lords it would have been a Tautology with a witness M. I must confess if this Authority you now urge had been as ancient as the time to which it is ascribed it would be of some weight but it appears by this Word Baronibus not used in England till after the Conquest that it was added long after that time by some ignorant Monk to the Confessor's Laws and therefore will not prove that for which you bring it viz. That the Vulâââ understood for the People or Commons in the sense they are now taken had any Place in the Saxon Great Councils But make the most of it this was but the confirmation of a Law made by King Aethelbert but how and by what Words the Legislators were expressed near 500 years after the Law was made or how they were rendred in Latin after the coming of the Normans transiently and without design to give an account of them cannot be of much Validity to prove who they were and that the Laws of King Edw. were made or at least translated into Norman Latin after the Norman Conquest appears by the Word Comites besides Barones already mentioned Militeâ Servientes c. all Norman Words and not known here till their coming hither He that will assert any thing from a single uncouth Expression in one Case and upon one occasion only brings but a slender Proof for that he says so will any man think because 't is said in one of King Edward's Laws and perhaps no where else concerning this King's Coronation quod debet in propria persona ââam Regno Sacerdotio Clero jurare ante quam ab Archiepiscopis Episcopis Regni coronetur That the Priests were not Clergy-men nor the Clergy-men Priests and that the Arch-Bishops and Bishops were neither Many other uncoath Expressions do often occur in the old Monks which are to be interpreted according to the common usage and practice of the times in which they are delivered And therefore seeing before the time of the Conquest and for two or near three Centuries of years afterward the Commons as at this day understood were not called nor did come to Great Councils or Parliaments as I shall prove when I come to speak of those times So that by Barones must be here meant the Great Barons and by Populus the Communitas Angliae or which was then all one the Communitas Baronum the Less Barons or Tenents in Capite and the sense of the Words is
farther confirmed by several undeniable Authorities wherein by the Communitas Populi must be understood not the Community of the People or Commons but the whole Body of the Less Tenants in Capite But to give you an answer why the Word Populus could not comprehend all sorts of people among the Saxons as it did among the Romans but only the Nobility who were then properly speaking the only Freemen is this that none but the Nobility possessed any Lands in Fee-simple all the rest of the meaner sort of people then called Cheorl Folk holding theirs in Villanage under their Lords or Thanes being no better than meer Villains or Costagers and who were all bound to the Good Behaviour every tenth Family being bound one for another in the Sheriff's Torne or Court of Franc-Pledge under their Head or Tenth Man called the Tything-man who was to answer for them So that the common People of England were not such a Free People nor had any share in the Government as some suppose there being I believe no such persons as our Yeomen or Faâââers in those days F. Tho perhaps this Law might very well be transcribed from some old Copââ of King Aethelbert's Laws not now extant and in which there might be the Word Thanes instead of Baronibus which is but a Translation of it in the sense iâ which it was used not long after the Conquest Nor is it true which you affirm that the Word Barones was never in use before the coming in of the Normans in ancient Charters as I shall prove to you by this Charter of King Edgar to the Abby of Westminster containing a confirmation of their ancient Charters and Priviledges collected ãâã the aforesaid Sulcardus a Monk of Westminster as it is to be found in the Cottonian Library the Charter it self is long but concludes thus In Concilio habito infra Basilicam Westmonast Praesidente ãâã Filio suo Edwardo Archiepo Dunstano universis Episcopââ Baronibus suis where you may see that the Word was not unknown before the time of William I. and I could give you more Instances of other Kings Charters where the same Word is used before the Conquest were it worth the while to trouble you with them And so likewise Populus for People or Folk in the Saxon Yet take it as you suppose to have been writ not long before the time Hoveden writ his History which was above 80 years before the 49th of Hen. III. This Author or whoever else added this Passage to this Law about Tythes did then suppose that according to the custom then used the People had Representatives in those Assemblies which I shall prove from your own sense of these words for if the word Populus signifies here another sort of men different from the Lords then this word Populus must necessarily signifie some that were Commons and not Lords by your own concession and who also must represent others besides themselves but it is highly improbable that by this word Populus should be meant the Communitas Angliae or the Communitas Baronum for then since the word Baronum would have included all the Tenents in capite both Great and Small to what purpose should the word Populus have been added at all Therefore I am so far from believing this way of expressing the several Estates of the Kingdom to have been a Monkish Blunder as you suppose that ât was rather a common and ordinary way of Expression among the Writers of those Timeâ as well in Records as Histories who then very well knew the People or Commons to be an Estate or Constituent part of the Common Council of the Kingdom quite different from the Lords and in which sense it is recited in an ancient Charter of King Iohn That He being divorced the New Queen was crowned de communi assensu concordi Voluntate Archiepiscoporum Episcoporum Comitum Baronum Cleri Pâpuli totius Regni Where by Clerus it is plain must be meant the Inferior Clergy represented by their Proxies in this Great Synod or Parliament and by Populus was understood the People or Commons likewise present by their Representatives or else the Words Clerus and Populus had been idle Tantologies in this Record And in the like sense it is also used by Matt. Paris in the 9th of Hen III. presentibus Clero Populo cum Magnatibus Regionis Where this Author makes a plain distinction between the Magnates and the Populus which had been altogether in vain if the Word Magnates would have comprehended all your Greater or Less Barons or Tenants in capite But I shall in the next place proceed to that Great Synod or Council that was called by King Edward the Elder Anno Dom. 905. and is mentioned by Simeon of Durham and other Authors quoted by Arch-Bishop Parker the Compiler of the British Antiquities in these Words Plegmundus Cantuariensis Archiepiscopus âââ cum Rege Magnifico cognominato Edwardo seniore Consilium Magnum Episcoporum Abbatum Fidelium Procerum Populorum c. convocavit Which Synod or Council was called to divide the large Dioceses of Winchester and Sherbarn into five other as I have already told you where you may plainly see the Words Fidelium Populorum put distinct from the Word Proceres if we take that Word to signifie only the Greater Nobility I shall now conclude with a few Words in reply to your Answer why the Word Populus could not among the Saxons take in all sorts of People as well as amongst the Romans for I cannot take it as a satisfactory answer for these Reasons 1. Because tho I should grant that the Vulgar sort of People were greater Slaves than they are now and that they had no hereditary Properties in their Estates but at the will of their Lords yet does it therefore follow that all the Freemen of the Kingdom were Noblemen or Gentlemen or else Villains as now understood since Nitardus tells us in the place above mentioned that there were three sorts of people among the Saxons Edelingi Frilingâ Lazzi i e. Gentlemen or Noblemen Freemen and Slaves or Villains and this middle sort of men might also possess Lands in Allodio or Free-Tenure tho they did also depend upon other greater men for Protection and seem to be those who were after the Conquest called in Doomsday Book Commendaââ i. e. such who tho they lived under the Protection and within the District of some Great Men Lord or Patron yet as Sir Hen. Spelman tells us were free both as to their Persons and Estates not as sworn to or holding of any but the King And besides these there were also great Bodies of men in Cities and Burgh Towns and those very considerable for Estates and other Riches who tho not nobly born and yet being Freemen it was but reasonable that they should have their Representatives in Parliament as well as the former M. I shall not at present
dispute the matter farther with you concerning the Word Populus since I shall refer speaking more about it till I come to the times after the Conquest And therefore to return to the Matter in hand Had you but read a little farther in the same Leaf in the Author you have cited you might have found who they were whom King Edward the Elder called to this Council The Words are these Edwardus Rex Synodum Praedictam Nobilium Anglorum congregavit cui presidebat Plegmundus Here your own Author tells us in few words the meaning of a long Title of this Synod now mentioned viz. that the Bishops Abbots Fideles Proceres Populus were all Nobiles Noblemen that is the Ecclesiasticks and Laies or the Bishops and Lay-Nobility as I shall make more evident hereafter and not the Vulgus Commons or ordinary sort of People And to this effect Malmsbury and the Manuscript in the Bodleian Library cited by Sir William Dugdale and Mr. Somner from the Treasury of the Records and Evidences of the Church of Canterbury cited by Sir H. Spelman do all report of this very Council That Edwardus Rex congregavit Synodum Senatorum Gentis Angloâââ cui prasidebat Plegmundus c. That King Edward convened a Synod of the Senators in the Saxon Aldermen of the English Nation that is such as were usually called to such Councils which were only the Nobles and Great men for ought yet appears from this Instance But what if after all there was never any such Synod called and consequently no such Title to it For it was said to have been assembled by reason of a chiding Letter from Pope Formosus Now this Formosus died Anno 895. that is ten years before this Council was supposed to be called F. I see this Authority galls you therefore I do not blame you to do what you can to be rid of it but I shall not give it up for all that For that this Word Populorum then signified all the Lay-persons who were actually Noblemen that is of the Greater Nobility I think is a great mistake for to what purpose are all these different Words here heapt together since the Word Proceres had donâ as well alone in your sense and at once comprehended all those Lordâ or Noblemen that you would only have to be there But the Word Nobiles did not in those times neither doth at this day in any other Countrey but England signifie none but Great Lords Barons or Peers since in Germany and France and other Countries every private Gentleman is Nobilis And I think the Middle or Less Thanes might then as well be called Nobiles as the Great ones And the Aldermen or other Magistrates of Great Cities and Towns might also very well be stiled Nobiles ratione officii for the time they acted in that Employment and might also deserve the Name of Senators as well as the Greater Aldermen or Earls And if there were no other Lay-Men but your greater sort of Aldermen then what becomes of your chief or Kings Thanes which you your self grant were constant Members of those Councils Nor indeed doth the Word Senator only signifie such who were Noblemen by Birth since among the Romans there were Senators of the Plebeian as well as Patrician Order as any man who hath but read Lucius Florus may quickly see But as for your Exception That there was no such Council because Pope Formosus is said to have died ten years before this Council was called it is a bold Assertion to annihilate a whole Council because of the mistake of the Date or time of its meeting or perhaps in the Name of the Pope or King then reigning especially when it was assembled upon so remarkable an occasion as the erecting of these new Bishopricks which all our Historians ascribe to this Council But I shall now proceed to another Authority and that is to the Great or Common Council held at Winchester Anno 853. where you will find in Sir H. Spelman's Councils as also in Ingulphus's History that after the Bishops Earls and other Great Men or Thanes who subscribed to the Law of Tythes granted by way of Charter there mentioned wherein these following Parties are mentioned Aliorumque Fidelium infinita multitudo qui omnes Regium Chirographum laudaverunt Dignitates verò sua nomina Subscripserunt and the Learned Commentator upon King Alfred's Life published in Latin at Oxford is so well satisfied that the Commons were meant by this Expression that he hath this remarkable Observation upon this King 's granting of these Tythes Bis videtur Rex Decimas Ecclesiae concessisse Primum Anno 844 2 vero 855. vel ut alii 854 è tota Regione cum Assensu omnium Nobilium totius Populi where this Author rightly supposes that the Words at the conclusion of this Council did comprehend the consent of the People or Commons as well as of the Lords or Noblemen Or else this reciting of this Word Populus as distinct from the Nobiles had been altogether in vain So that tho I do not affirm that the meer Vulgar or Plebeian sort of People did appear personally in the Great Council of those times any more than they do now yet they were there by their Representatives viz. either by Knights of Shires as now or else the chief Thanes or Freeholders of the Kingdom as also by the Aldermen or chief Burgesses of great Cities and Towns who I suppose did then represent those Politick Bodies since all men could not appear there in person But I shall give you another Authority out of the same Author viz. Arch-Bishop Parker's British Antiquities where when he relates the calling of the Council of Calne for the turning of Married Priests out of Monasteries and Cathedral Churches and putting Monks into their places He tells us a remarkable Accident that then happened viz. The falling down of the Room where the Council was assembled So that there fell together all of a sudden pray take the words themselves out of the Authors there cited Praesules Proceres Equites Nobiles pariter Ignobiles Corruerunt So that you see here were other sorts of men present in this Council beside the Prasules i. e. Bishops and Abbots and the Proceres i. e. the Earls and chief Thanes viz. the Knights or Inferior Thanes Noblemen or Gentlemen as also Ignobiles those that were not Noble by Birth such as were the Representatives of Cities and Burroughs and of this opinion the Arch-Bishop himself seems to be for at the end of this Relation he makes this Remark Sed nec hujus domus in quâ ãâã Ordinum tam Conspicui Clarique viri Consulto Convenerunt tam repentina ruiâââpe Diabolica carere potuit Where by Omnium Ordinum he must certainly mean the three Estates of the Kingdom in the same sense as the word Ordines is used by Camden and other Latin Writers who call our Parliament Conventus Ordinum that
Lords or Peers of Parliament and that the rest being the lesser or lower Tenants in capite sometimes stiled Barones minores were for some time before this summoned by general Writs directed to the Sheriffs or Bayliffs as appears by King Iohn's Magna Charta Now whether these men were ever really Peers or not I have reason to doubt since I do not find but it was they alone who for some years after the Conquest served upon Juries in County Courts and dispatched all the publick business of the Country which was then as at this day a drudgery beneath the Peers to perform and therefore I shall not insist upon it But thus much I think is certain That they were a sort of persons much above any other Lay-men of the Kingdom since they held their Estates immediately from the King and were so considerable as that by the Constitutions of Clarendon they were not to be Excommunicated without the King's leave and so were then in some sort of the same Order ratione Tenurae with the great Barons or Peers being commonly stiled Barones and made up but one Estate or Order of Lay-men in Parliament And from thence I suppose proceeds that common Error of Sir Ed. Coke that the Lords and Commons did anciently sit together and made but one House Now if you have any thing to object against this Notion pray let me hear it F. I think you and I are come pretty near an issue in this question for you confess that these lesser Tenents in capite and whom you comprise under the word Barones were not truly and properly Barons and so far you are in the Right but yet you will have them to be somewhat more than mere Commoners as if there had been some Degree or Order of men in England in those times who were neither Lords nor Commons but an Amphibious Race between both But to prove that they were indeed no more than Commoners and not Lords nor Peeâs at all nor equal with them we need go no farther than their way of Trial in cases of Treason or Felony which was by mere Commoners who were not Tenants in capite as well as those that were so that a person who was no Tenant in Capite and might serve upon a Jury of Life and Death upon them and as well as the Dr. in his Answer to Mr. P. as you asserted that they only served in the Country upon all Iuries and that before the time of King Iohn So after all this noise of none but Lords and Tenants in capite appearing for the whole Commons of England we find by your own showing that three parts in four of the Lay Members of that Council were as meer Commoners as our Knights of Shires and Barons of the Five Ports at this day nor can I see any reason why these latter might not be as well comprehended under the Word Barones as the former who were meer Commoners likewise if we consider that it was neither Nobility nor Birth nor the King's Writs of Summons but only the meer Tenure of their Lands that gave them a particular right to a Place in that Assembly in those Ages or if a meer Citizen could get Money enough to purchase such an Estate in capite he was as good a Member of Parllament as the best of them all So that the Question then amounts to no more than this Whether the Commons of England were then represented by Tenants in Capite or by Knights of Shires and others as they are now But since you will have none Commoners but Tenants in capite to have had places therein pray tell me whether you allow that Priviledge to all who held in capite or not M. Yes I allow it to all who held in capite by Knights Service and who also enjoyed a whole Knight's Fee or so much as was sufficient to render them able to sustain the Dignity of that Place not but that the King had also a prerogative of summoning or omitting whom of them he pleased to his Great Council or Parliament till the Less Tenants in capite thinking it a wrong to them it was provided by King Iohn's Charter that all of them should be summoned by one General Writ of Summons directed to the Sheriff But I exclude from this Concil all Tenants by Petit Serjeanty who tho 't is true held of the King in capite yet was it not by Knights Service So likewise I exclude all Cities and Towns tho the Citizens or Burgesses of divers of them held their Lands and Tenements by that Tenure since being neither noble by Blood nor having Estates sufficient to maintain the Port of a Gentleman or Knight they had no Right to appear there in Person among the other Tenants who were owners of one or more Knights Fees Yet do I not affirm that the Commons were not after some sort represented in Parliament by their Superior Lords tho not as Commoners since the Bishops Abbots and other Barons did then make Laws and give Taxes not only for themselves but their Feudatory Tenents also tho of never so great Estates and Tenure in capite was then looked upon as the only true Freehold of the Kingdom and the Tenents by it as the only true Freeholders F. I shall shew you by and by the falsity of this Notion but in the mean time pray tell me when a Great Council or Parliament was called who represented those Persons who you say did not appear there and made General Laws and granted General Taxes for themselves and the whole Kingdom when there was occasion For I see you shut out the greater part even of these your true Freeholders from this Assembly M. As for the Tenents in Petit Serjeanty I at present conceive tho I am not sure of it that many of them might hold Lands and perhaps divers Knights Fees by Grand Serjeanty or Knights Service also since those Estates which were given by the Conqueror to his Servants to be held of him by such and such Petit Services might in process of time fall by Purchase or Descent into the hands of such Great Tenents in capite as had sufficient Estates to maintain that Dignity and as for the rest they might for ought as I know before the Statute de Tallagio non concedendo have been taxed by the Kings Writs according to the proportion of the Knights Fees or parts of Knights Fees which they then held and according to the Rate of the Sums imposed in Parliament either by way of Aids upon every Knights Fee or else by way of Subsidy by so much a yard or Plow Land throughout all England which has been the only way of taxing ever since that of Knights Fees hath been disused F. Then I find after all you have said that scarce half your Tenents in capite had any Votes in Prrliament either by themselves or their Representatives and so having Laws made for them and being taxed at the King's Will were as
errant Slaves and Vassals notwithstanding their Tenure in capite as the meanest person of the Kingdom who was taxed as you would have it at the Will of his Superior Lord which whether so great and powerful a Body of men would ever have sufferd I leave to any indifferent person to judge M. I grant this may now appear somewhat hard yet since it was the receiv'd Law and Custom of the Kingdom it was not then look'd upon as a grievance and it was then no more unjust than it is now that persons under forty Shillings a year tho of never so good Estates in Money or Stock or that Tenants for years or for the Life of another should at this day have no Votes at the Election of Knights of Shires and consequently be without any Representatives in Parliament of their own Choice and yet be subject to all Laws and Taxes tho never so great when made and imposed by the King in Parliament And I am able to give you divers good Authorities to prove that even London it self and all other Cities and Towns which held of the King in capite and were called his Demesnes were often taxed by the King and his Council out of Parliament before the Statute De Tallagio non concedendo And I think Dr. B. hath proved this beyond exception in his Animadversions upon Mr. A's Iani Anglorum facies noâe and he there gives us the Record it self of 39 Hen. III. now in the keeping of the King's Remembrancer of the Exchequer That the King did that year as he had divers times before Talliate or Tax all his Demesne Lands in England and then likewise demanded of the City of London the sum of 3000 Marks in name of the Talliage or Tax so laid And the Mayor and Citizens at last yielded after a great Contest It appearing upon search of the Rolls in the Ezchequer that the Citizens of London had been several times before so taxed in the Reigns of King Iohn and the King himself and so they payed at last the Sum which the King demanded By which you see that the greatest and richest Cities and Towns in England were taxed at the King's Will nay I think I am able to prove were it now necessary that the whole Kingdom was often taxed by the King and his Council only before the granting of King Iohn's Magna Charta and the Statute de Tallagio non concedendo above mentioned But to return to the Matter from which you forced me to digress I think nothing is more plain than that our Ancient Parliaments were only the King's Court Baron for the dispatch of the Publick Affairs of the Kingdom and in which as in the Lesser Courts Baroa or Courts of Mannor the Suitors or Tenents were together with the Lord or his Stewards the sole Judges So that at first after the Conquest it belong'd to the King alone as the Supreme Lord of the Kingdom to appoint or call which or what sort of those Tenants be pleased to attend him with their Aid and Advice at his Common Councils or Parliaments And I think nothing is more evident as I shall prove more at large from our Ancient Histories Records and Statutes then that before the 49th Hen. III. and some years also after that time none but the Bishops Abbots Earls and Greater Barons and some of the Less called in King Iohn's Charter the other Tenents in capite then constituted the whole Body of the Parliament under âhe Titles of Baronagium Angliae or Communitas or Universitas Baronagii Angliae And for this I can give you so good Authorities that nothing but more cogent and evident Proofs can bring me from this Opinion And therefore I must tell you I do not value those loose and inconsiderate Expressions of Historians either before or after that time F. I see the Testimonies of Historians are of no credit if they make against your Hypothesis but I shall show you your Mistakes about the King's Taxing anon but the main force of your Argument lies in the signification of those Latin Words you have last mentioned and which I must needs tell you I think you take in too strict a sense For first as to the Word Baro I grant it was not much in use before William I. obtained the English Diadem Baro says Camden Britanni pro suo non agnoscum in Anglo-Saxonicis legibus nusquam comparet nec in Aâfrici Glossario Saxonico inter dignitatum vocabula habetur For the English Saxons called those in their own Language Aealdermen which in Latin were named Comites and by the Danes Earls but it was of so extensive an import in its signification that we read of Aldermani Regis Aldermani Comitatus c. as I have already shewed you So that according to the strict Sense of this Word we had whole Regiments of Earls whose Titles seldom if at all descended Hereditary till the Confessors Time and after William I. the Saxon Words Aealderman and Thegnes began to be changed and in the room of Aldermanni Thani we find Comites Barones as in all our Ancient Laws and Histories Nor was the Word Barones only taken in those days for Great Barons and Tenents in capite but also for the Inferior Barons or Free Tenents which held great Estates of other Mesne Lords as well as of the King by certain Services and to whom the Great Lords or Earls as Sir H. Spelman shews us in his Glossary Title Baro often directed their Charters Barombus Fidelibus nostris tam Francis quam Anglis and we there also read some Quotations from the old Book of Ramsey Abby wherein the Barons of the Church of Ramsey as also the Milites and Liberi homines thereof are particularly mentioned all which as this Learned Author tells us non de Magnatibus sunt intelligenda sid de Vassallis feodalibus note Scil melioris And the same Author says a little lower that Barons are often taken pro liberè Tenentibus in genere hoc est tam in Soccagio quam per servitium Militare M. What then do you suppose that all the Freeholders in England by whatsoever Tenure they held appeared in Person in Parliament before the time Sir H. Spelman in his Glossary and Dr. B. Assign for the summoning of the Commons to Parliament At this rate every Yeoman or Petty Freeholder was a Baron so that this Assembly might then consist of above 50 or 60 Thousand Persons Since Spot in his Chronicle tells us that William the Conqueror reserved to himself the service of about 60000 Knights Fees which by the time I suppose might have been divided into many more lesser ones by Co-heirship or by sale and otherwise parcelled out by the King's License into Half-Knighs-Fees Third Part of Fees Fourth Part of Fees Eight Parts Sixteen Twenty Thirty and Forty Parts of Fees and so have been increased into as many more And these besides the Tenants in
in these two Quotations since in that out of Camden you cannot deny but he hath truly quoted that Author as it was in his First Edition and if he afterwares altered it it may very well be questioned whether he did not add the Word Superiores rather out of fear of displeasing the Greater Nobility whom that Quotation had before Shockt than out of any sense of his being in the Wrong as it appears by the Words immediately following when he tells us out of a nameless Manuscript Author That Henry III. out of so great a multitude of Barons which was seditious and turbulent called the best and chiefest of them only by Writ to Parliament By which it plainly appears that he supposed all those Less Barons or Tenants in capite tho no Lords as now understood who were thus excluded to have been only Nominal and not Real Barons and if so Commoners or else he must extend the Peerage of England to at least Three or Four Thousand Persons For so many Tenents in capite might very well be at that time The same I may likewise say as to the Quotation out of Mr. Selden for by the Words quibus peculiaris in ordinum Comitiis locus est 't is plain he supposed that all the rest of those Tenents in capite were but meer Commoners yet he no where affirms that none but these appeared in Parliament for all the Commons of England for he very well knew the unreasonableness of that Supposition Since besides these Barons or Tenants in capite Bracton in his first Book tells us of divers other Orders of Men of Great Dignity and Power in this Kingdom about the time when you suppose this marvellous Alteration to have happened His Words are these Et sub iis viz. Regibus Duces Comites Barones Magnates sive vavassores Milites etiam Liberi Villani deversa Potestates sub Rege constitutae and a little farther sunt alti Potentes sub Rege qui dicuntur Barones hoc est Robur belli sunt alii qui dicuntur Vavassores viri ãâã Dignitatis From which Words I desire you to observe that he here makes the Magnates and the Vavassores or Feudatory Tenants to be all one and also ranks them before the Milites Now whether these Vavassores and Milites who did not all hold of the King in capite were men of so great Dignity and Power as these whom he here reckons immediately after the Earls and Great Barons should have no Votes in Parliament neither by themselves nor their Representatives is altogether improbable And agreeable to this of Bracton Du Fresne in his Lexicon Tit. Vavasor tells us that Vavassorum duo erant ordines sub majorum apellatione implectuntur qui Barones apellantur sub ânorum vero quos vulgò Vavassores dicunt ut leges Henrici I. Reg. Ang. Thaines minores respectu Thainorum majorum qui Baronibus aequiparantur But that these Lesser Thanes or Vavassors were also stiled Barones Sir H. Spelman tells us expresly in his Glossary Tit. Baro etiam Barones Comitum Procer umque hoc est Barones subalterni Baronum Barones sâpissime leguntur and of this he gives us many Examples and particularly of the Chief Tenants of the Abby of Ramsey above mentioned So likewise the same Author a Leaf or two farther speaking of the Barones of London mentioned in the Charter of King Henry I. understands them pro civibus praestantioribus qui socnas suas consuetudines i. e. Curias habuerunt Privilegia eorum instar qui in Comitatu Barones Comitatus dicuntur c. Nor did this Title of Barones extend to London alone but he also immediately tells us in the same place Sic Barones de Ebaraco de Cestria de Warwico de Soe Feversham plurium Villaram Regiis Privilegiis insignium cum in Anglia tum in Gallia c. and that Barons of Counties were no more than Lords of Mannors I have just now proved for Socna means no more than a Court Baron or Court of a Mannor So that here arises a plain distinction between the Barones Regis the King 's Great Barons or Tenants in capite and these Lesser Barons we now are here speaking of called Medmesse Thegnes and Burgh Thegnes by the Saxons till they ãâã on the Word Parliamentum to signifie the Common Council of the Kingdom who tho no Peers yet were Barones Regni Barons or Noblemen of the Kingdom according to the general acceptation of the Word Nobiles in that Age and is such made up the Body of the Baronage called by Matt. Paris and other Authors Baronagium or Communitas Baronagit totius Angliae M. I see you do all you can from the equivocal use of the Word Barones to croud in new and unknown men into the Great Council of the Kingdom viz. your Barons of Counties Cities and Towns whom since you dare not affirm there were then any Knights of Shires you suppose to have served instead of them and these you would have to be not Barones Regis but Regni or Terrae forsooth i. e. of the Land or Kingdom whereas we never had any True Barones held by mean Tenures here in England this if you deny you must deny all History and all our Ancient Laws and Law-Books too and if you grant it you must confess that every Baron was a Tenant in capite and by your own Concession he must then be the King's Baron or Baro Regis I grant indeed there were Nominal or Titular Barons such as you mention many in those Times such as were Tenants to Great Lords Bishops or Abbots of whom we find frequent mention in our Ancient Histories Records and Charters But these are not the men who had ever any Place in our Great Councils and I desire you would prove to me that ever they appeared there before the Times I assign and I would also have you inform your self of the Gentlemen of whom you borrow this Notion if they can prove that there were any such kind of Tenure as Tenura de Terra or de Regno or whether there was ever any man that held an Estate de Regno Whether forfeitures or Escheats were to the Kingdom And whether Fealty was sworn or Homage done to the Kingdom Or whether an Earl was invested or Girt with the Sword of the County by the Kingdom Or whether the ancient Ceremonies used at the Creations of Earls and Barons were done by the Kingdom Thus all the Barons of England held of the King and thus all these things were performed and done to our Ancient Kings and by them which are most manifest Notes of the King 's immediate Jurisdiction over the Barons and that they were his Tenants in capite and by consequence his Barons only which you cannot deny and of which Tenants in capite the Earls and Greater Barons always created by Investiture of Robes or other Ceremonies were summoned by particular Write
have already proved that the whole Parliament as well the Lords Spiritual and Temporal as Commons were both before and after this time comprehended under these words Nobilitas Angliae and if you yet doubt of it I can give you a plain Authority out of VValsingham for it is in his Life of Edw. II. Anno 1327. where relating the manner of that King's Deposition he tells us That when the Queen and Prince came to London there then met Tota Regni Nobilitas to depose the King and chuse his Son in his stead and then there was sent to the King being Prisoner in Kenelworth Castle on behalf of the whole Kingdom two Bishops two Earls two Abbots and of every County three Knights and also from London and other Cities and Great Towns especially the Cinque Ports a certain number of persons who informed him of the Election of his Son and that he should renounce the Crown and Royal Dignity c. This Proof is so plain it needs no Comment As for the rest of your Argument the strength of it chiefly consists in this that the Tax there mentioned is said to be granted à Militibus or Tenants in capite as you would have it of three Marks upon every Knight's Fee But in the first place I desire you to take notice that this Scutage is not Scutage Service but a general Land Tax or Manner of taxing according to Knights Fees and which was continued long after Hen. III. Reign as it appears by this Passage in Sir Henry Spelman's Glossary Tit. Scutagium Edwardus primus habuit 40 Soli de quolibet ãâã Anno Regni 13 Dom. 1285. pro expeditione contra VVallos And it was also granted by the Lords and Commons after the 18th of Edw. I. when you and the Dr. supposes the Commons to have then came to Parliament and if so I desire to know why a Militibus here mentioned by this Author must only signifie Tenants in capite by Knights Service and not the Knights of Shires since it is not here said a Militibus qui de Rege tenuerunt in capite And therefore it is a forced Interpretation of the Dr.'s and without any Authority to limit these words Militibus libere Tenentibus omnibus de Regno nostro which you omit with an c. as also the omnibus Hominibus Liberis Regni nostri only to the Arch-Bishops Bishops and other Prelates of England and to the Earls Barons Knights and Free Tenants or Tenants in Military or Knight's Service because they were only such as paid Scutage VVhereas you have already acknowledged that Magna Charta was granted to all the people of England who had all a benefit by it and who paid towards the aid there granted as well as the Tenants in capite But if Knights Fees alone were Taxed and that by the Tenants in capite only I desire to know by what Right all Tenants in Petit Serjeanty and by Burgoge oâ Sâoccage Tenure who made a greater Body of men in this Kingdom in those Times could pay this Scutage since they held not by Knights Service but by certain Rents or other Services and so not appearing in Person could have no Representatives in this or any other Parliament of those Times But if you will tell me they might pay according to the value that Knights Fees were then reckoned at viz. for every 20 l. a years Estate I desire to know how this could be called Scutage or how the Tenants in capite or other Lords from whom they held those Lands could give away their Money for them And in the next place I desire also to know how all the Cities and Burroughs in England could be charged with this Tax a great many of them is you your self grant holding of the King in capite or else of Bishops Abbots or other Mesâe Lords by Soccage or Bargage Tenure So that this Tax if granted only by the Tenants in capite by Knights Service could reach them and no other persons but if by this Word a Militibus may be understood Knights of Shires then the Tax was general as well upon Soccage Tenants as those by Knights Service But for the other Words you insist upon viz. the Liberi Tenentes which you translate Tenants by Military Service if that had been the meaning of these words then they had been altogether in vain since you have already told me that the ââlites were so called non a Militari Cingulo sed a Feodo and if it were no Name of Dignity then certainly the Word Milites would have served to comprehend all your Liberi Tenentes or Tenants in capite without any other addition But that these Words Laberi Tenentes do not here signifie Tenants by Military Service pray see Sir Henry Spelman's Glossary Tit. Liber Homo liber Tenens where he there gives us a more general Signification of thesewords thus Ad Nobilesolim spectabant isti ãâã à majoribus ortos omnino Liberis and then ends thus vide Ingenuus Legalis ãâã Francus Tenens Liberè alias Liber Tenent quo etiam sensu occurrit interdum Homo ãâã which upon every one of these Titles he makes to signifie all one ââd the same thing viz. an ordinary Freeholder And therefore it is a very forced Interpretation of yours to limit these Words Communitas Populi only to the Community or Body of the Earls Barons and Tenants in capite Tho I confess you are very kind in one main Point in únderstanding the Communitas Populi to mean the Community of the Lesser Tenants in capite that were no Barons and then do what you can these Words must here signifie Meer Commoners or Commons unless you can shew us a Third Sort of Men who tho neither Lords nor Commons yet had a place in Parliament So that these Gentlemen notwithstanding their Tenure were no more Noble than their Feudatory Tenants or Vavafors themselves my than the Knights of Shires are at this day And then granting as I doubt not but I shall be able to prove that the Cities and Boroughs had then also their Representatives there I pray tell me whether or no there were not Commons in Parliament before 49 Hen. III. or not which is contrary to your Dr.'s Assertion in divers places of his Answerâ to Mr. P. And that the Word Populus must here signifie the Commons and not the whole Body of the Laity appears plainly by this place you have quoted since it is restrained by your self to mean not the whole Community of the Kingdom but only the Community of Lesser Tenants in capite who were not Lords But that Matt. Paris doth also in another place take the Word Populus for the Commoners and not for the whole Body of the Laity pray again remember what he says in Anno 1225. where relating the manner how Magna Charta came to be confirmed in 9th Hen. III. he tells us Rex Henricus ad Natale tenuit Curiam suam apud VVestm
that King last mentioned per Commune Consilium ãâã Regni yet there is likewise no mention made of any Knights and Citizens ãâã Burgesses F. Before I answer this main Argument of yours which I freely grant carrieth the greatest shew of probability of any you have yet brought give me âââve to take notice that I think you are very much out in your first Conclusion that before this Charter the King exercised a Royal Prerogative of Imposing Taxes without the Assent of Parliament for if you mean that this Exaction was exercised de facto and from thence you would make it a Prerogative of the Crown I grant this was true not only before but after this Charter before the Statute de Tallagio non concedendo was made but if you mean de Iure I affirm that our Kings were as much tyed up by the 55th Law of William the First which you have already Cited from Levying any unjust Taxes or Exactions ãâã Communi Consilio totius Regni as they could be afterwards by any other subsequent Law that could be made But I shall proceed to answer the Authority you have now brought from this Clause in King Iohn's Charter to prove That none but Tenants in capite had any place in our Great Councils or Parliaments But though I confess the Charters of Henry III. and Confirmation of Edward I. are the same with this in the most material parts yet there are several Clauses of which this Clause in question is one which are in King Iohn's Charter and yet are totally omitted out of both those of Henry III. as I shall shew you hereafter So that let ââe sense of this place be what it will I defie you to shew me any Great Council of the Kingdom that was ever summoned according to this Imaginary Model of yours and that I do not speak without Book that Parliament or Council of 9. Henry the Third when but 11 years after King Iohn's Charter was Conâââmed Mât. Paris as I have already observed tells us it consisted of Cleââ Populus cum Magnatibus Regionis But give me leave to read this Clause according as your Dr. himself hath Printed and Transcribed it and as your self have now read it and I doubt not but it will appear plain enough that the Clause you insist on in this Charââr doth not at all concern the Great Council of the Kingdom and for the proof of this I desire you only to observe that by the 15th and 16th Clauses of this Charter you have now read both the City of London and all other Cities Barââghs and Towns had a Right to have a Great Council of the Kingdom for the âââessment of Aids otherwise than in the Three Cases there expected And âay take the Dr's Paraphrase to this Clause along with you in his Appendix to his compleat History of England viz. That they viz. the Citizens Burgesses and Cinque Ports shall send their Representatives or Commissioners to the Common Council of the Kingdom for the Assessment of Aids So that according to his Concession there must have been Citizens and Burgesses in the Great Council in the Reign of King Iohn and if so I desire you to tell me whether those Gentlemen were Commoners or not But I will not insist too much upon his Concessions for I think it is very plain from the Words themselves which point out a distinction between the Common Council of the Kingdom mentioned in the first Clause which was to meet to grant or assess Aids or Subsidies and that other tho not Common Council or Assembly consisting of all the Tenants in capite which by the 17 th and 18 th Clauses of that Charter are to meet to assess Escuage and to do such other Business as was express'd in their Summons So that nothing seems plainer to me than that this Assembly mentioned in this Charter for assessing Escuage was a distinct Council from the Great Council of the Kingdom which was appointed for the granting of other Taxes called Auxilia and for the making of Laws M. I confess this Gloss of yours seems at first sight very plausible and agreeable enough to the way of Reading and Pointing with which the Dr. himself published this Charter but for all that I much doubt whether you are in the right or not therefore pray give me leave to put off this Debate till our nâât Meeting since it now grows late and in the mean while I will take time to consider the Arguments and Authorities you have now made use of F. Pray take your own time but do not defer it above a day or two for I have a great mind to have this Question dispatch'd off our hands I am your Servant M. Good night Sir FINIS Books Printed for Richard Baldwin near the Oxford-Arms in Warwick-Lane A Brief Disquisition of the Law of Nature according to the Principles and Method laid down in the Reverend Dr. Cumberland's now Lord Bishop of Peterborough's Latin Treatise on that Subject As also his Confutation of Mr. Hobb's Principles put into another Method With the Right Reverend Author's Approbation The Gentleman's Iournal Or the Monthly Miscellany By way of Letter to a Gentleman in the Country Consisting of News History Philosophy Poetry Musick Translations c. Compleat for the Year 1692. Printed for Rich. Parker and are to be sold by Richard Baldwin near the Oxford-Arms in Warwick Lane Where are to be had the Single Iournals for each Month or Compleat Setts bound The Tragedies of the Last Age consider'd and examin'd by the Practice of the Ancients and by the Common sense of all Ages in a Letter to Fleetwood Shepherd Edq A Short View of Tragedy its Original Excellency and Corruption With some Reflections on Shakespear and other Practitioners for the Stage Both by Mr. Rymer Servant to their Majesties Bibliotheca Politica OR A DISCOURSE By Way of DIALOGUE WHETHER The Commons of England represented by Knights Citizens and Burgesses in Parliament were One of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. The Second Part. Collected out of the most Approved Authors both Antient and Modern Dialogue the Seventh LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth Fifth and Sixth Dialogues 1693. Authors made use of and how denoted 1. Mr. Petut's Ancient Right of the Commons of England Asserted P. R. C. 2. Dr. Brady's Answer thereunto Edit in Folio B. A. P. 3. The said Doctor 's Glossary at the end of it B. G. 4. Animadversions upon Mr. Atwood's Treatise Intituled Iani Anglorum faces nova B. A. I. 5. Mr. Atwood his Confutatin of the said Doctor Intituled Ius Anglorum ab Antiquo I. A. A. 6. Dr. Brady's Preface to his History B. P. H. 7. Dr. Iohnston's Excellency of Monarchical Government I. E. M. G. THE Seventh Dialogue BETWEEN Mr. MEANWELL a Civilian AND Mr. FREEMAN a Gentleman F. YOU are
of Coventry where by Proceres Populus are to be understood the same orders of Men as by Magnates Populus in Mat. Paris so that it was with the smaller Tenants in Capite and the inferior Clergy with whom the King had this larger or more diffusive Treaty as this Author words it F. I confess you have now put a very fair gloss upon these Places I have now made use of but 't is an hundred pitties that such a fine Hypothesis should have no better proofs than your bare Surmises to support it for that is all the Authority that I can see you bring for your sense of this word Populus for the smaller Tenants in Capite and not for the rest of the People but I see no good Authority as yet brought by you to prove it except that clause in King John's Charter which if as I have lately shewed you it will beat a quite different Interpretation all that you have said upon that head will signifie nothing therefore as for the main Argument you raise from the words infinita multitudo nobiâium in Mat. Paris that they could not be the Knights of Shires together with the Citizens and Burgesses because they could not be such an infinite Multitude as this Author here mentions to have me at London as also because of the shortness of the time of the Summons If these are material Objections against our Opinion so it will be likewise against yours for how could this be a great Council according to King John's Charter which expresly provides for Forty days Summons for the Tenants in Capite to come to this Assembly and if so be this usage was broken at this time upon some urgent occasion in respect of them it might be so also as to all the rest of the Kingdom for the Knights of Shires might be chosen at the next Country-court and their Names returned immediately before or together with their meeting at London and as to the Citizens and Burgesses it was yet more easie for them to be chosen and returned in three Weeks time since every body knows the Cities might have called Common Councils and the Towns and Burroughs by the notice of their proper Officers to whom the Writs were delivered might have assembled at their common Halls or Town-houses immediately upon the receipt of the Writs and these together with the Knights Citizens and Burgesses joyn with the great Lords and Tenants in Capite made up the infinita Nobilium multitudo mentioned by Mat. Paria But your main Objection I confess is behind how these Representatives of the Commons here called infinita Nobilium multitudo could be the Knights Citizens and Burgesses whose number could not be at that time above 500 Persons As for this pray consider if the difficulty will not bear as hard upon you for if your Tenants in Capite made such a vaft multitude all those difficulties will arise that you press me with upon my Hypothesis of the meeting of all the chief Free-holders or Lords of Manors in England in Parliament before Knights of Shires were introduced in the room of them viz. How it was possible for so great a multitude to debate vote or do any business and what Room or Church was able to hold so many and the like so that granting all your smaller Tenants in Capite who had but one Knights Fee apiece to have met there these might have made a body of 5 or 5000 Men which how they could have been managed any better then 20000 or 30000 which would have more then taken in all their Feudatary Tenants too I desire you would resolve me if you can so that at last upon your own Hypothesis this Populus consisting of the Tenants in Capite were as much Commoners as the Knights oâ Shires at this day for as for the word Nobilium I have already proved and you must needs here grant it that it takes in the inferior Nobility or Gentry under the degree of Lords as well as the Superior and if so why not all the considerable measu Tenants of those Tenants so that you have hitherto brought no proof but your bare Assertion that under this infinita multitudo Nobilium Populus must be understood only the great Lords and Tenants in Capite since either this Author speaks Hyperbolically or else all the chief Gentry of England of whatsoever Tenure might have appear'd at this great and extraordinary Assembly So that you are under this Dilemma either this Curia which you confess met ex more was the great Council of the Kingdom or it was not if it was not then there was some other greater Council besides that but if it was then it will plainly follow though you do all you can to mince the matter that this great Council of the Kingdom or Parliament met of course by ancient custom three times in the year without any Summons at all from the King which if I should have affirmed you would have called it a Common-wealth Notion since nothing can be a greater proof that this Assembly of the whole Nation in Parliament did not upon your Hypothesis immediately depend on the Kings Writs of Summons for their Assembling and Acting when met M. Well since you can bring no direct proof that these were any other besides the Tenants in Capite who met at this great Council I have still more reason to suppose them to have been so then you can do for the conorary Opinion therefore pray give me if you can some clearer and later proofs for this difference between the two Councils F. I shall comply with your desires and in order to it shall conclude with two or three of those very Authorities the Doctor has given us in his Answer to Mr. P. where he gives us this passage out of Mat. Paris in the 2ââth of Hen. 3. which plainly proves the Tenants in Capite not to have been the common University or sole Rep. esentative of the whole Kingdom â pray read it Eâââ in Anno convenerunt regis summonitione convocati Londinum Magnates totius Regni Arciâpisâori Episcopi Abbates Priores Comites Barones in quo Concilio portis Rex oâe proprio in presentia magnatum i. e. of all the parties above mentioned in Refectorio Westmonasteriensi Axilium sieri pecuniare cui fuit responsum quâd super âoc tractarent ârecedentesque Magnates de Râfectorio convenerunt Archiepiscopi ââ Episcopi Abbates Priores seorsim per se superque hoc diligenter tractaturi âandâm requisiti fuerunt ex parte eorum Comites Barones si vellent illis unanimiter conâentire in responsione previsione super hiâ facienda qui responderunt scâlicet Comites Barones quod sine communi universitate nihil facerent ture de communi dissânsu electi fuerunt ex parie cleri Electus Cant. c. Now I think here is as manifest a distinction as need to be between the Lords and Commons as Members
at the end but the King himself Teââe meipso and farther both agree in all things material with four ancient Manuscript Copies of this Charter of the 2d of Hen. III. when he was in Minority one of which is in the Cuttonian Library a 2d was lately in possession of Sam Baldwin Serjeant at Law a third is in the Hands of Iohn Cooke Esq chief Prothonotary of the Court of Common-Pleas and a 4th is at this present with Mr. Peryt of the Inner-Temple which I my self have seen But to put this out of all doubt there is still Extant a fair Original of this Charter of confirmation of the 9th of Hen. III. when he was of full Age under the great Seal of this King which is supposed to have belonged to Bâââail Abby and is now to be seen in the hands of Sir Nathaniel Powel Benches of the Inner-Temple who is so civil as to Communicate it to all who have the Curiosity to see so great a Rarity so that tho it is not to be denyed but that the Charter Published by Sir Edward Coke in his 2d Institutes is properly the Charter of confirmation of Edw. I. since Boniface was at that time Arch-bishop of Canterbury and âulk Bishop of London E. being by ââstake put for F. yet I think no man has any cause to doubt whether that Clause we dispute about be not in all the Copies of this Charter as well as in this of Edward I. M. Well admitting this Charter to be as ancient as you please yet let me tell you if your sense be that the words at the end of this Charter viz. omnes de Râgon those who gave or granted this Subsiây were Members of that Parliament if you wiââ understand it so and according to the literal meaning of the words then omâes de Râgnâ as well those thât had Estates in Land as those that had not all Câpy holders all Tradesmen all Bondmen and Villains of which there were great store in those days and all Servants were Members of Parliament And so then I would willingly understand where âll these People should meet how their Council shoulâ be managed and how it is possible in such Meetings i any such there can be to prevent the greatest confusion imaginable The meaning then of the words must be that the Arch-bishops Bishops Abbot âarâ Barons Knights Free-Tenants and all of the Kingdom or all the King's Suâjects Dederunt that is paid a Fifteenth part of their Moveables to the King for his granting these Charters not that they themselveâ gave or granted this Subsiây and 't is reasonable to conclude that all the King's Subjâcts paid the Fifteenth part because one way or other little or much they enjoyed the benefit of them I take this to be the Geâuine sense of the words but Mat. Paris whom you now quoted makes it very apparent who were the constituent âorts of this Parliament for if you please to observe the Men to whom the chief Justice Proposed this Fifteenth and those who consulted about the King's Demands and those that returned an answer to them and also granted the Fifteenth part of the Movables as well of the Ecclesiasticks as Laiâs oâ the whole Kingdom were only the Arch-bishops Bishops Earls Barons Abbots Priors and therefore they were the only constituent parts of this Parliament as they were also of the Parliament or great Council held at Merâon in the 20th Year of this King's Reign whither says Mât. Paris Consummato cum gaudio Nuptiali convivio Rex recedens a Londoniâs venis Mereroââm ut ibi revocati Magnaies unà âum Rege de Regni Negotiis eântractarent F. I think I can as easily answer this small Objection against on meaning of these words at the end of this Charter Pray do I affirm that these words are to be taken literally or the contrary Therefore you do ill to put a sense upon me which I do not allow of but pray tell who ever was so mad as to believe that these words are to be understood litterally or that all those Persons who you here give us a Bed-Roll of could all appear in Parliament in Person or had all Votes at the Elections of Parliament Men and yet for all that this Clause is true in a legal tho not in a litteral sense that all the Freemen of the Kingdom granted this 15th viz. that the Prelates and Temporal Lords in their proper Persons and all the rest of the Kingdom by their respective Representatives granted this Fifteenth I hope it is a good Rule in your Civil as well as our Common Law that he who gives or grants any thing by his sufficient Proxy or Representative is said to perform it by himself and in this sense all the Men in the Kingdom gave or granted a Fifteenth for the confirmation of this Charter and so at this day it may be said in a legal sense that all the Men of the Kingdom do joyn in granting the King a Tax by themselves or their Representatives in Parliament tho none but such as are Free-holders of 40 â a Year can have Votes at the Election of Knights of the Shire nor any but the Aldermen of divers Cities and Towns and the Freemen of Corporations and the Scot and Lot-men of Buroughs who have any Votes at the Election of Citizens or Burgesses And that your Dr. himself tho he hath misled you in the sense of this word Dederunt yet can grant this to be a reasonable Interpretation of this Clause when he is in a good humour Pray remember his Comment upon the Record of the 34th of Edw. I. which I gave you but now wherein after the Barones it follows that milites Liberi homines Communitates Comitatuum granted a 30th part of their Moveables and the Communitates Civitatum Burgorum a 20th whereupon he tells you these words are so expressed as if they had been all there in Person but these words signifie no more then that the Knights and Freemen gave by their Representatives and that the Communities of Counties and these Citizens and Burroughs gave by their Representatives and why these Milites Liberi homines Omnes de Regno might not do it as well in the same sense When this Charter was granted and confirmed I should be glad if you could give me a sufficient reason so that I shall refer it to your own Ingenuity to consider when the Charter says expresly that all the Persons therein mentioned gave a Fifteenth whether it be not a manifest wresting of the Grammatical signification of this word Dederunt to render it they pay'd for at this rate a Man may make words signifie just what he pleases But our ancient English Historians are the best Judges in this case for the ancient Annals of Waverly-Abby Published in the same Volume I last mentioned under the Year 1225. having given us a short account of the granting thâse Charters 9 Hen. III. recite the conclusion of the great
Indeed if the words had been Milites libere Tânântes qui de Rege tenuerunt in Capite you had said somewhat but otherwise it is all meer supposition without any ground But pray go on to the last woâds in this Charter omnes de Regno nostro what can they mean âut that all the Freemen of the Kingdom gave this Fifteenth by their Lawful Representative M. If you do not like our sense of these words Milites and Libere Terentes I cannot help it nor shall I dispute them longer with you but as for this last Clause in the Charter omnes de Regno it only means all these who were Tenants in Capite in general in the same sense as when our ancient Historians mention Regnum Sâcerdotium by Regnum is to be understood both the Temporal and Spiritual Barons great and small the Kings Justices or any other that exercited any share or Ministerial part of the Government as perhaps all those diâ one way or other by coming to our great Councils or Parliaments c. all which is evident from the words of the Quadri partiâe History concerning Thomâs Becket thus Rex apud Clarendun Regnum convo aâ universum Quò com venisâ ut Prasules Proceres c. i. e. the whole Baronage called together by the Kings Writ or a full meeting of the Spiritual and Temporal Barons both great and small I pray also remember that passage you your self made use of but now out of Mat. Paris whereby you would prove that the Common Council of the whole Kingdom was distinct from that of the Tenants in Capite because that after the Curia held at Christmass the King immediately issued out his Writs commanding omnibus ad Regnum spectantibus to appear at London and yet you see there are no more mentioned to be Summoned than the Archbishops Bishops Abbots Priors Earls and Barons So that we may hence learn the true meaning of these words omnes de Regno at the end of this Charter for these omnes de Regno were the same with the omnes ad Regnum spectantes in Mat. Paris the Regnum or Government the Communitas Regni the totalis Regni universitas the insluita nobilium multitudo and also gives us the meaning of those words omnes alii de Regno in the close Roll of the 19 th Henry the Third to the Sheriff of Somersershie Scias quod Comites Barones omnes alii de toto Regno nostro c. Concesserunt c. Which are further explained by a Writ in the same Roll about the same business directed to the Sheriff of Sussex which you have likewise cited beginning thus Sciatis quod Arohiepiscopi Episcopi Abbates Priores Comites Barones omnes alii de Regno nostro Angliae qui de nobis tenent in Capire nobis concesserunt c. Here the omnes alii de Regno were the omnes qui de nobis tânent in Capite which were then all the Regnum or Communitas Regni So likewise it may be farther proved from a Record of the 48 th of Henry the Third Rex omnibus c. cum venerabiles Patres G. E. Eborum Archiepiscopus c. alii Praelati Magnates Milites libere Tenentes omnes alii de Regno nobis nuper in Articulo necessitatiâ servitium fecerunt sulisidium c. And I may also put you in mind of the Writ I cited but now directed Archiepiscopis Episcopis c. Comitibus Baronibus Militibus omnibus aliis de Comiâaru Kanciae c. for the Levving of forty Shillings upon every Knights hee in that Country Now this Writ could not be directed to all the Men in Kent but to all such as paid Scutage for not a fortieth part of them were Tenants in Capite or Military Service So that these omnes alii de Regno and Omnes alii Comitatus were the same one with the other and otherwise it could not be for by Omnes de Regno or Omnes alii de Regno the Inhabitants in general could not be understood for they never were Summoned no not the Hundredth part of them to meet in Great Councils for 't was impossible they should and perhaps not above a fourth part of the Kingdom paid to this Fifteenth if we consider how many Servants Villainâ Bondmen and many such People there were than in the Nation that paid nothing F. You have taken a great deal of pains to perplex and darken words in themselves very clear and perspicuous for methinks it is a strange piece of confidence in your Doctor when the Charter says expresily That Omnes dâ Regno all the Freemen of the Kingdom gave this 15th to restrain this Act only to the Tenants in Capite who were but a few in comparison to the whole Kingdom this is indeed to make words signifie any thing he fancies But to answer your Authorities which are founded all upon false suppositions without any proof As to your Authority from the Quadrilogus History of Thomas Bâecket it is true that the Praesules and Prâceres are there called Regnum the Kingdom but I have already proved at our last Meeting that this word Proceres was of so comprehensive signification that it took in all the Principal Men of the Kingdom as well those that were Lords as those that were not so that the chief Citizens and Magistrates of our Cities and great Towns are often stiled Proceres Magnates Civitatum in our ancient Historians and Records and certainly the great Free-holders or Knights of Shires did much more justly deserve that Title As for the other passage out of Mat. Paris where the Bishops Abbots Earls and Barons are called omnes ad Regnum spectantes this is but a general way of expression in this Author and proves nothing For either the word Barones takes in all the smaller Tenants in Capite or it does not if the latter then this Author does not exactly recite all the Orders of Men whom your self must acknowledge to have appeared there since the great Barons alone could never make this infinita Nobilium multitudo mentioned in this Author if the former then it is plain that he thereby comprehended more then those who were really Barons Since it is certain that the smaller Tenants in Capite were not so nor are so much as called so in King Iohn's Charter and then make the most of this word Barones it may in a large and common acceptation take in all the chief Free-holders or Lords of Mannors which as I have already proved were often called Barons in our ancient Historians and Laws of the first Norman Kings and Mr. Cambden tells us that under the word Baronagium omnes Regni ordines continarentur This I say supposing that by this infinita Nobilium multitudo is to be understood all the cheif Gentry or Free-holders of England called often Nobilitas Angliae as I have already made
out and which may also take in the Representatives of Cities and Towns but if we should suppose that by the Barones here mentioned are to be understood only the Tenants in Capite yet since they together with the great Lords made the chiefest Figure in the Government it was easie for him to over-flip the particular mention of others it being enough to comprehend them with the Representatives of the rest of the Kingdom under the general Phrase of Infinita Nobilium multitudo as I have already said but I always thought that the Conciseness of Historians was to be explained by our Statutes and Records and not that their express words should be interpreted by the concise Phrases and Expressions of Historians and if by omnes de Regno are to be understood all the Tenants in Capite in general how could this be without a notorious Tautology since if it be as you say that the Bishops Abbots Earls and Barons comprehended all the greater Nobility and the Milites libere Tenentes all the lesser or Tenants in Capite who made then the whole Kingdom if so what can these words omnes de Regno here signifie but so many idle words without any sense or meaning But it will be now more easie to answer your false Interpretation of these words omnes alii de Regno which you will needs have to signifie only the Tenants in Capite and it will be no hard matter to shew you the Drs. Prevarications on these words for as to the first Writ directed to the Sheriff of Somerset-shire tho I confess these words at the beginning of the Writ are omnes alii de toto Regno nostro yet the Dr. has in his Glossary concealed the words that follow which plainly restrain them to Tenants in Capite and their under Tenants by Military Service but if you please but to turn to the Writ which he has given us at large in his Appendix Numb 14. you will find first that this Writ recites that the Earls Barons and omnes alii de Regno had granted the King an Aid to two Marks on every Knights-Fee quae de nobis Tenent in Capite Secondly that at the Command of the Earls Barons and all others that held in Capite the Sheriff should distrain omnes milites libere tenentes qui de eis tenent per sârvitium militare who were likewise to pay the King the like Summ of two Marks for every Knights Fee so that you may here plainly see that this could be no general Tax granted by the whole Kingdom since none but Tenants in Capite and their under Tenants by Knights Service were chargeable with it which if given with their consents must have been done in full parliament and in which they had Representatives of their own choosing and if without their consents was directly contrary to Law But you need go no farther then this Writ you have now cited to prove that the Milites libere tenentes were not at this time only Tenants in Capite as you suppose but their Feudatory Tenants also as appears by the express words of this Writ which orders the Sheriff to distrain omnes Milites libere tenetes qui de ci tenent pârservitium Militare but as for the other Writ to the Sheriff of Sussâx which as you say truly relates to the former to the Sheriff of Somerset-shire it sufficiently interprets those general words omnes alii de Râgno and expresly restrains them to omnes alii qui de nobis tenent in Capite who in a Council of themselves alone granted this Tax for themselves only as I have already proved which whether it was according to Law or not we shall inquire by and by But in the mean time give me leave to answer to your next Record of the 4âth of Hen. III. which recites an extraordinary Service and Aid done by the Prelati Magnates lib re Tenentes omnes alii de Regno Now that this was not a Service performed or an Aid given by the Tenants in Capite only for the whole Kingdom the word Subsidium may teach you which was never granted otherwise then by the whole Kingdom in Parliament But let us first consider the substance of this Record which is indeed but the Kings Declaration or a right to all his Subjects in general or the Freemen of the whole Kingdom that what they had lately performed in Articulo necâssitatis praedictae non sibi cedat in prajulicium nâc ad posterum traâatur in consuerudimen vel consequentiam nec ad bujus modi serviâium compellentur which being the effect of this Record now see the cause why it was granted which you may find in another Record of the same Year and on the Roll and to which this Rcord you cited relates which is a general Summons directed Archiepiscopis Episcopis Abbatibus Comitibus Baronibus Vice-comitibus Militibus liberis Hominibus Vniversae Communitati Comitatus Lincolniae commanding them all even the Citizens and Townsmen immediately to appear with such Arms as are there expressed and were proper for each Mans Estate and Condition for the common Defence of the Kingdom against strangers then ready to invade it and this Record also says eodem modo scribitur caeteris Vice-comitibus Angliae Now since it appears by this Writ of Summons by which this Service and Aid was performed that not only the Tenants in Capite but all the Subjects of the whole Kingdom were engaged in the performance of it can any body but one who will take things by halves suppose that by these omnes alii de Regno there mentioned and who must certainly be the same Parties intended in the Drs. own Record viz. all the Freemen of the Kingdom could be meant no more then the Lesser Tenants in Capite taken altogether when they had been according to our sense all particularly named before But that by these omnes de Regno cannot be here meant only the Tenants in Capite but all the Freemen of the whole Kingdom I shall prove by another Record of the 16th of Hen. III. and is the very Writ I gave you before wherein it is recited that the Villani together with the rest of the Liberi Homines had given a 30th of their Moveables in consideration of which this Writ concludes thus Concessimus etiam Archiepiscopis Episcopis Abbatibus Prioribus Comitibus Baronibus vobis omnibus aliis de Regno nostro quod tam Charta nostra de Foresla quam alia Charta nostra de Libertatibus quas eis vobis fieri fecimus de caetero in omnibus teneantur so that it plainly appears that by these words in this Record omnibus Aliis de Regno must be understood all the Freemen of the Kingdom in general unless you will allow none to have had any share in these Charters or to have received any benefit by them but the Drs. Tenants in Capite alone which sure you
him and Tax him as he pleased then by the same Rule the King as Supream Lord over all his Tenants in Capite should have had the like Power over them of making what Laws for them and imposing what Taxes he pleased upon them without their consents and so there would have been no need of Common Councils or Parliaments at all since upon your Hypothesis the Tenants in Capite were the only Persons that had any right to appear there But if neither the Wardship Marriage nor Relief of the Heir could give the King such a Power over his Tenants in Capite much less could they attain the like right over all their Mesne Tenants by Knights Service for that would have given them a greater Power over their Tenants then the King himself had over them therefore if those great Tyes of Wardship Marriage and Relief of the Heir could neither give the King nor yet any Tenant in Capite power over the Estate or Liberty of his Tenants by Knights Service much less over their Tenants by Socage Tenure who were not under this subjection and farther if a right of Forfeiture alone in some Cases could have given the Lords a Power of making Laws and granting Taxes for his Tenants in Socage then they should have kept that right by this Rule since all Lords had a right of Forfeiture even upon their Tenants in Socage in some Cases before the Statute of taking away Knights Service and the Court of Wards and Liveries in the second year of King Charles the Second as I could prove were it worth while As to Scotland I shall not deny the matter of fact to be as you say that it hath at this day no other Representatives in their Parliament but the Tenants in Capite yet whether it was so or not anciently I very much doubt since I find the very same words and Phrases made use of in the Titles of their old Statutes as also in their Records to express the Constituent parts of the great Council of that Kingdom as were used in England to express those of England at the same time For proof of which pray see the old Charters of King Malcolme III. and David I. as you may find them at the end of the 2d Vol. in Mr. Dugdales Monâst Angliâ and you will see the former to have bin made by the Assent of the Comites Barones Regni Clero adquie cent que Populo c. and as I shall also shew you from Sir Iohn Skenes Collection of Scotish Laws to begin with the most ancient there Extant viz. an Assize or Statute made in the time of King William Sir named the Lyon who began his Reign Anno. Dom. 1105. in the Fifth of our Hen. I. to the observance whereof it is there expressed that the Epiâcopi Abbates Comites Barones Thani tota Communitas Regni tenere firmiter juraverunt so likewise King Alexander II. who began to Reign Anno. 1214. which was the Sixteenth year of our King Iohn and he made his Laws de confilio assensu venerabilium Patrum Episcoporum Abbâtum Baronum ac proborum hominum suorum Scotiae and who these were may also farther appear by the begining of certain Statutes made by the said King Alexander in the same Year which begin thus Statuit Rex per consilium assensum totius communitatis suae c. I shall next produce the Title of a Parliament holden the 13th of Rob. I. who began his Reign Anno. Dom. 1306. the 3d. of our Edward I. In Dei nomine Amen Roberâus Dei Gratia Rex Scotorum Anno Regni suo Decimo tertio die Dominica proxima c. habito solenni tractatiâ cum Episcopis Abbatibus Prioribus Comitibus Baronibus aliis Magnatibus de Communitate totius Regni ibidem congregatis and which Title concludes thus de Communi consilio exprâsso conâensu omnium Prelatorum libere Tenentium predictorum ac totius Communitatis predicte ordinavit condidit c. Statuta infra Scripta c. So likewise in an ancient Manuscript called Scoto-Chronicon formerly in the Possession of the Right Learned and Honourable Arthur Earle of Anglesey and now in the Herald Office you will find the Entail of the Crown of Scotland to have been made by this King Robert Anno. Dom. 1315. in a general Council or Assembly of the whole Kingdom of Scotland as well Clergy as Laity which as this Author tells us who lived within Sixty Years after was held Dominica proxima ante festum Apostolorum Congregati apud Aere in Ecclesia Parochiali ejusdem Laici Episcopi Abbates Priores Archidiaconi nec non Diaceni caeteri Ecclesiarum Praelati Comites Barones Milites caeteri de Communitate Regni Scotiae tam Cleri quam Laici c. from which it is apparent There was a great Council of the whole Kingdom as in England more comprehensive then that of Tenants in Capite alone And that our English Records also agree with these Scotch Statutes you may see by 2 Records which Mr. Pryn has given us in his History of Papal Vsurpations out of the Rolls of the 17th of Edw. I. it is a Letter to Eric King of Norway concerning the Marriage of his Son Edward with his Grand-daughter then Heiress of Scotland and Norway reciting that the Custodes Scil. Regni Scotlae Magnates Praelati ac tota Communitas predicti Regni Scotiae unanimi expresso consensu had agreed to the said Marriage So likewise in another Letter of this King Edwards about the same Marriage he declares that he had by his Procurators therein named treated and agreed with the Custodibus Episcopis Abbatibus Comitibus Baronibus tota Communitate ejusdem Regni and it presently follows ac praedicti nobiles tota Communitas Regni Scotiae praedicti Now whom can this word Communitas signifie put here distinct from the Earls Barons and Nobles but the Commons of that Kingdom So likewise in the 14th year of King Robert I. there was a Letter sent from the Parliament of Scotland to the Pope complaining against the violence of the King of England which is to be seen in Manuscript and is also Printed by Dr. Burnet in his History of the Reformation and by which it plainly appears that the Comites Barones Libere Tenentes tota Communitas Scotiae agreed to this Letter And that the Cities and Burrough Towns were at that time part of this Communitas appears by the League made betwen this King Robert and the King of France in the 28th year of our Edw. I. which is to be seen in a Roll of this year still Extant in the Tower which League was ratified and confirmed in their Parliament by King Iohn de Bayliol ac Praelatos nobiles Vniversitates Communitates civitatum villarum praedicti Regni Scotiae and I suppose you will not deny that in Scotland the Cities
and Burroughs from times beyond all Memory sent their Proxyes and Representatives to the Parliament in Scotland and that each Citizen and Burgess so sent had as good a Vote in their Parliament as the greatest Bishop or Earl of them all M. I desire no better proofs then what your self have now brought to make out that the Tenants in Capite are not only at this day but have been from the very beginning of Parliaments in that Nation For I shall appeal to those very Statutes and Records you have now cited which compared with divers subsequent Statutes of that Kingdom will make the matter plain enough that the Communitas and these probi homines mentioned in these Laws you have cited were the Community of the Tenants in Capite only In the first place therefore let me observe from that very Law of King Alexanders the Title of which you have but now quoted that these words per essenssum Communitatis cannot here signifie the Commons since they alone could neither advise nor give their consent to make Laws and therefore they must needs refer to the whole Community or Assembly of Estates consisting of Tenants in Capite only as I shall prove by a Parliament of King Rob. III. who began to Reign Anno. Dom 1400. in the 10th year of our Richard II the Title is thus Parliamentum Domini nostri Roberti III. Scotoâum Regis c. vocatis summonitis more solito Episcopis Prioribus Duâibus Commitibus Baronibus Liberis Teâentibus Burgensibus qui de Domino Rege tenent in Capite and this is also confirmed from the Title to a Parliament held at Perth Anno. Dom. 1427. being the 23d of King Iames I. Summânitis voâatis mâre solito Episcopis Abbatibus Prioribus Comitibus Baronibus Liberi Tânentibus qui de nobis tenent in Capite de quolibet Burgo certis Buâgenfibus so that I think nothing can be plainer from these ancient Statutes then that the Scottish Parliaments did anciently consist of no other Members then the Bishops Abbots and Priors Dukes and Earls Barons Free-holders and Burgesses which held of the King in Capite Having thus shewn the ancient Costitution of the Scotish Parliaments for your satisfaction I shall farther shew when and how it was altered In the Seventh Parliament of King Iames the First held at Perth A. Dom. 1420 there was a Law made which I shall contract That the small Barons and Freeholders need not to come to Parliaments and that for the future out of each Schirefdome there should be sent two or more wise men after the largeness of the Schirefdome the which shall be called Commissaries of the Shire and that these should have full power finally to hear and determine all causes to be proposed in the Great Council or Parliament and that the said Commissaries should have Costage of them of each Shire that ought to appear in Parliament or Council I have only given you an Abstract of this Statute because it is pretty long and pen'd in old Scotish English but you may consult it at your leisure And this is farther confirm'd by a subsequent Act of Parliament of King Iames the Sixth holden at Edinburgh Iuly the 29 th 1587 wherein after a repetition of the former Act of King Iames the First and a Confirmation of the same it follows thus And that all Freeholders of the King under the degree of Prelates and Lords of Parliament be warned by Proclamation to be present at the choosing of the said Commissioners and none to have voit in their Election but sik as hes Fourtie Shillings Land in free tenandrie halden of the King and hes their actual dwelling and residence within the same Schire c. I need give you no more of this Act but I think it is most clear from this as well as the former Act of Parliament that the Commons in Scotland were only the Kings Tenants in Capite and are so at this day since none but they can either choose or be chosen Commissioners for the Shires but as to the Buroughs who do each of them send but one Commissioner or Burgess except the City of Edinburgh which sends two all which are chosen by the Common Council of the Towns Now there are in Scotland three sorts of these Burghs that is to say Royal Burghs Burghs of Regality and Burghs of Barony but only the Royal Burroughs the Burgi Dominici Regis or qui de Rege Tenent in Capite send Commissioners to Parliament and are in number Sixty To conclude that I may apply what hath been said concerning the Constituent parts of the Scotish Parliament to ours anciently it seems to me that from the great affinity there was between ours and theirs 't is certain that our and their Communitas Regni was the same that is they were the small Barons and Tenants in Capite F. I cannot deny but that the Parliament of Scotland hath for above these two hundred years consisted of the Bishops Abbots and Temporal Lords together with the lesser Tenants in Capite or their Representatives the Commissioners for Shires and Burgesses of Cities and Towns till the Reformation that the Bishops and Abbots were quite taken away tho the former were restored to their places in Parliament by a Statute made in the latter end of King Iames the First yet I cannot allow that from the beginning of that Government the Scotch Parliaments have consisted of no other Members than those since the word Communitas coming as it does in these old Statutes and Records I have now cited immediately after the Praelati Comites Barones Milites c. must signifie a distinct order of men from the Tenants in Capite called in the Statute of King Iames the First the small Barons and since the Citizens and Burgesses though none of those Barons were also comprehended under this Communitas and whom you grant to make the third Estate why this word might not comprehend all the other great Freeholders I can see no reason to the contrary And therefore I suppose that in the Reigns of K. David 2 d. or Robert the 2 d. or else the beginning of Robert the 3 d. there was a great alteration in the constituent parts or Members of the Scottish Parliament and about that time the chief Freeholders or Lords of Mannors who held of Bishops Abbots and other Temporal Lords as well as of the Tenants in Capite or else of the King by petty Serjeantry or Socage Tenure as also many of the small Towns or Baronies might either forbear coming at all or else desire to be excused because of the great trouble and charge of attendance as you see the smaller Tenants in Capite afterwards did when Commissioners for Shires were appointed in their steads and so might by degrees leave off coming or be excluded by some Law not now extant and thus the Tenants in Capite might become the sole Representatives of the
French Peasants at this day and so were not Reckoned among the Freemen all Freedom consisting then in so much Freehold Lands held in a Man 's own right or being Freemen of some City or Burrough Town and this gives us a reason why Copy-holders and Tenants for years have no Vote in Parliament at this day since it is certain and all our Law Books allow it that at the first all Copy-hold Estates were held by Villenage and the owners of them at first the Villani or Tillers of the Demefnes of the Lord of that Town there being at first no Free-hold less then that of a whole Township since a Mannour and therefore all Copy-holders and Tenants for years or at Will though Freemen are not admitted to have Votes at this day because as I said before Freedom anciently consisted in the Inheritance or Free-hold Estate of Land or in Riches in Trade or Traffick Leases for Life and Years being not known or at least not commonly in Use in those days and hence it is that when Estates of Free-hold came to be divided into small Parcels all Free-holders till the Statutes of Henry IV. and VI. which we have before cited were as much capable of giving their Votes at the Election of Knights of Shires as the best and greatest Tenant in Capite in England till it was reduced by those Statutes to 40 s. Freehold per Annum these Freeholders and Burgesses of Towns being anciently looked upon in the Eye of the Law as the only Freemen and it was these Freeholders alone who owed Suit and Service to the County Court and were amerced if they did not appear This being premised and sufficiently understood will give us a very good account why Copy-holder and Lease-holders for years do not give any Votes at Elections of Knights of Shires and yet the Parliament may still continue the Representative of all the Freemen of the Nation as the People of Rome and the Territories about it were of all the Romans though there were a great many Liberti and in Inqui lini who sure were Freemen and not Slaves and yet had no Votes in theirs Comitiis Centuriatis or general Assemblies of all the Roman Citizens But that the Liberi homines Libere Tenentes de Regno must take in more than your Tenants in Capite the Doctor himself is at last forced to confess in his Glossary notwithstanding his maintaining the contrary in the body of his Book viz. that the Liberi Homines Libere Tenentes mentioned in Iohn's Magna Charta were not only the Tenants in Capite but their Retinue and Tenants in Military Service also and whom he there supposes to have been then the only men of Honour Faith and Reputation in the Kingdom and if so might certainly have been chosen Knights of Shires as well as any of the Tenants in Capite though this is but Argumentum ad Hominem for the truth is that the Mesne Tenants by Military Service were not the only men of Faith and Honour in those times since it is certain the Kings Tenants in Peâyt Serjeantry and of some Honour or Castle or else his Tenants in Socage besides those who held of other Mesne Lords and the Tenants of those Abbots and Priors who did not hold in Capite and yet were very numerous were men of as much Faith and Honour as those that did since many of them possest as good if not better Estates than the Tenants in Capite themselves so that you are certainly mistaken in matter of Fact when you say the whole force and strength of the Nation lay in their hands for if you mean Legal force I have already proved that the Tenants in Capite had no Legal right to give away the Estates of their Mesne Tenants or to make Laws for them without their consents who were altogether as free as themselves Servitiis suis debitis solum-modo exceptis as Bracton tells us much less for so great a Body of Men as I now mentioned who never held of them at all and consequently could not upon your own Hypothesis be ever represented by them but if you mean a Physical strength or force though this can give no Natural much less Legal right for one Man to Lord it over another yet even this was much farther from truth since the Mesne Tenants of all sorts as well by Military Service as in Socage together with those above mentioned who never held of the Tenants in Capite at all made six times a greater Body of Men both for numbers as well as Estates then all the Tenants in Capite taken together But to conclude neither is your remark upon my Authorities from Gheller and Durham at all to the purpose for I have sufficiently proved that those County Palatines were not at first concluded within the general Laws and Taxes of the Kingdom since they had their particular Councils for both within themselves as the Supplication of the Estates of the County Palatine of Chester sufficiently declares and certainly Durham had the like Priviledges since I never heard that the Men in that County were more Slaves to their Bishop then the Cheshire Men to their Earl and tho I grant that about the confused Times of King Hen. VI. there was a great breach made on the ancient Liberties of these two Counties Palatines and if the King and Parliament made Laws for and Levyed Taxes upon them though they had no Representatives therein this proceeded partly from their being over-powered by the rest of the Nation and partly by the ease they found in being excused from the Expences of Knights of Shires and Burgesses which all the rest of the Kingdom was at that time liable to and which came to a great deal of Money Four shillings per diem being in those days more then Forty Shillings now and yet you see at last they were aware of their Errour and at their request got the Priviledge of having Representatives in Parliament of their own choosing as well as the rest of the Kingdom and if this had not been a certain right of English Subjects how came the Welsh Counties which were anciently no part of the Kingdom of England to have been admitted to choose one Knight for each County and Burgesses for each Burrough Town as well in North Wales as South Wales though both these were Conquered Countries at the first and incorporated to England by particular Statutes and therefore we have no reason to deny the Truth of Bracton's and Fortescue's assertion that no Laws are made nor Taxes imposed in England sine consensu communi âuius Regni or as the latter truly adds in Parliamento and certainly this word common Assent must take in all their Assents who had Estates either in Land or other Riches at that time when this Law was Established But leaving this dispute about Scotland and the County Palatines pray make an end for it grows late and give me the rest of your Reasons
Writ to the Sheriffs of Counties to Summon two Knights de Legalioribus Discretoribus singulorum Comitatuum â though it doth not appear by the Writ whether the Sheriffs of the Counties were to Elect and send these Knights the Sheriffs being then of the Faction and made by them for 't is there said only quod venire faciarâ There are also other Writs recited to have been directed to all the great Cities and Towns of England as also to the Cinque Ports to send two of the most Legal and Discreet of each of the said Cities Burroughs Towns and Cinque Ports to the said Parliament at Westminster at the time aforesaid So that without the History of this Niâk of time these Writs which are said to be for the Delivery of the Prince out of Prison and for the settling of tranquility and Peace in the Nation cannot be understood But Prince Edward's Release could not be agreed upon in this Parliament whatever other Business might be dispatched So that things still remained in this uncertain condition the King being all this time a meer Shadow until such time as Simon Montfort and Gilbert de Clare Earl of Glocester falling out the latter at last took up Arms and joyning with the Earles of Surry and Pembroke to whom also came Prince Edward after he had made his Escape from Hereford they altogether raised considerable Forces against Monfort who meeting them and joyning Battle near Evesham Monfort with one of his Sons and many other Lords and Knights were Slain and all his Party routed Now pray tell me if this is not a very clear account from the History of the matter of Fact why the Commons were first called to Parliament by Monfort during his Rebellion and I think I can also give you very good reasons and Authorities to back them why they were again discontinued all the rest of this Kings Reign untill the 18th of Edward I. F. I shall tell you my opinion of your Narrative by and by but in the mean time pray satisfie me in one or two Questions pray Sir what may be the reason that we can find but twenty three Earls and Barons Summoned of that great number there was then and only to thirteen Bishops in this Parliament and yet at the same time there should be summoned above an hundred Abbots and Priors and but five Deans of Cathedral Churches pray why might not these numerous Barons be trusted as well as all the Abbots and Priors M. As for his not Summoning all the the Earls Barons and Tenants in Capite but putting Knights of Shires and Burgesses in their rooms there may be a very good reason given for it viz. the danger that Simon Monford and his Privado's apprehended from the too great Concourse of the Nobility and their great Retinueâ and the Example of his own and the Barons Practices at Oxford in the Parliament of 42 d. of Henry the Third might be the cause why they altered the ancient Usage and of their sending Writs out commanding the Sheriffs of each County as also the Cities and Burghs to send two Knights Citizens and Burgesses respectively But the Reason why there was so many Abbots and Priors Summoned was because Simon Monfort thought himself sure of them He was a great Zealot and a Godly Man in those times and a great Minion of these Religious men as then called as also of the Bishops and Clergy and they were at least seemingly Great Favourites of his F. I must confess there is some colour of Reason why Simon Monfort should Summon so many Abbots and Priors to this Parliament if he were sure of all their Votes before hand but there is no certainty of this for if he had been so sure of them there was as much reason why he should have called them all likewise to the Parliament at London which you say he Summoned the year before when with the Consents of the Bishops Barons and others he made the new Ordinances you mention but you cannot find in any Historian or Record that he then Summoned so many of them and it seems pretty strange that all these Abbots and Priors and Deans not a fourth part of which were Tenants in Capite should all take the trouble to come to this Parliament without any scruple if neither they nor their Predecessors had ever been Summoned before But the other reason you give why so many Earls and Barons should be omitted is much more unlikely for if the numerous Barons Factious Practices at Oxford had before frustrated Monfort's designs there had been indeed some reason why he should have done all he could to have hindered their coming again whereas on the contrary the Earls and Barons at the Parliament at Oxford though they came thither with Arms and great Retinues yet it was only to joyn with him and to force the King to agree to the Oxford Provisions But if the Commons were now Summon'd as you suppose to curb the extravagant Power of the Lords yet it could not be his Interest or indeed in his Power so to do not the latter because the Earls Barons and Tenants in Capite were too powerful and numerous a body to have suffered such an affront and breach on their Right as this was Nor could he and his two and twenty Companions have ever dared to have displeased so great and powerful a body of men as you must allow your great Barons and Tenants in Capite both great and small then were and who made such a powerful opposition for their Liberties in King Iohn's time or that they would have thus tamely permitted men wholly of the Sheriffs choice to have thus taken away their places in Parliament and made Laws for them much less the Citizens and Burgesses most of whom were certainly not Noble by Birth nor yet held Lands in Capite nor could it be for Monfort's Interest so to do for the greatest part of the Earls and Barons were of his side already and thus to ââclude them had been the only way to disoblige them and make them leave him and go over to the King's side So that I must needs tell you upon the whole matter granting Monfort to have been such a Knave and Hypocrite as you make him yet certainly he was no Fool but a great Politician and I leave it to your self or any indifferent person to judge whether it was possible for him to do so silly and unpolitick a thing as this For granting all the Abbots and Priors to have been of his side as you suppose they could no way counterballance the great Power of those Earls and Barons and numerous Tenants in Capite that were all hereby excluded So that let the Commons have been Summoned when you will it was certainly before this 49 âh of Henry the Third or not at all But to give you my opinion why so few Earls and Barons are mentioned in this Record of the 49 of Hen. 3 d to have been Summon'd
Assembled the Archbishops Bishops Abbots c the Pope's Legate presiding over the Clergy and besides these cum innumera Cloi Populi Multitudine and the Continuator of Florence shews us the manner of their giving their Consents to those Constitutions as well Civil as Ecclesiastical there made and Published they being proposed with a Placet vobis and the Answer to them is Plaecet Placet Placet thrice repeated which is very like the Form still observed in the Bishops and Lords giving their Consent to all Matters proposed in their House by saying Content So likewise the Continuator of Florence in Anno Dom. 1127. being the 27th of this King mentions such another General Council or great Synod wherein William Archbishop of Canterbury Presided over the Clergy and after the recital of all the Superior Clergy as before he thus proceeds Confluxere quoque illue i. e. to Westminster magnae multitudines Clericorum Laicorum tam Divitum quam Mediocrium sactus est Conventus inaestimabilis sedit etiam tribus diebus acta sunt ibi de negotiis saecularibus nonnulla quaedam quidem determinata quaedam dilata quaedam vero propter nimium aestuantis turbae tumultum ab Audientia judicantium proââigata And tho' the Author gives us the Ecclesiastical Constitutions only yet it is plain from him that Civil Matters were also transacted in this very Council which consisted as well of the Superior as Inferior Clergy as also of the Nobility and Commons which are all expressed under the general words of Divitum Mediocrium and resemble the Phrases of the Majores Minores and the des Greindres des Meindres mentioned in the Statutes of Marlbridge and Glocester which words were debated at our last Meeting In the Reign of K. Stephen there were also several Councils held of the same sort and particularly that of his Third Year in which was granted a Charter of Confirmation of this Kings of the Priviledges of the Abbey of Westminster which is also to be found in Sulcardus's Chartalary above-mentioned wherein after the general words of habito universali totius Angliae consilio and a mention of the Pope's Legate who Presided over the Clergy It follows thus âffuerunt etiam Comites Regni mei Barones quamplurimi innumera Cleri Populi multitudo qui his omnibus interfuerunt Religioso favore voluntatem Assensum Authoritati nostrae paginae Privilegio praebuârent c. So likewise in an ancient Manuscript Chronicle of the Abby of Ely under A. D. 1139. being the 4th Year of K. Stephen there is a remarkable Passage when speaking of a great Council then held at London he expresses it in these Terms Concilio adunato Cleri Populi and then explains of what Members these did consist viz Episcoporum atque Abbatum Monachorum Clericorum Plebisque infinitae multitudinis Now pray give me leave to make some Observations from these Passages in all these ancient Charters and Historians that besides these Bishops Abbots Earls and Barons of the Kingdom there were also an innumerable Multitude of Clergy and People or as the Ely Chronicle words it an infinite number of Clerks and Commons Now pray tell me what can be meant here by all these put distinct from the rest of the higher Orders but the inferior Clergy as the Deans Arch-deacons and Procurators of the Chapters of Cathedral Churches as also those of the secular Clergy of the whole Diocess And who can be meant by this infinite Multitude of People or Plebis which naturally signifies the common People distinct from the higher Nobility but the most considerable Free-holders or Lords of Manners whether Tenants in capite or not under the degree of the higher Nobility together with the Citizens and Burgesses of Cities and Towns and who came not only as idle Spectators since the Charter I last cited expresly mentions that they were not only present but also gave their Assents to this Charter of King Stephens M. And may I not with as good reason ask you why these words Populus and Plebs may not in the Historical barbarous Latine of that Age serve only to express not the Multitude or Rabble or meer common People but the whole Body of lesser Tenants in capite beneath the Dignity of the greater Barons F. I will give you two very good Reasons for that First from the great Analogy there was then between the Members of the inferior Clergy and those of the inferior Laiety or Commons the former of which even all the Abbots and Priors except those few that held in capite with all the rest of the inferior Clergy already mention'd holding only in Frank Alimoign and not by any Military Tenure at all Now pray give me any sufficient Reason why the Layety should not also consist of all other Orders of Men who did not hold in capite neither and by whom I do not mean the meer Vulgar or Rabble tho' Freemen of Free-holders of small Estates but the most considerable Free-holders or Lords of Mannors in England or else the Knights of Shires who I suppose represented not only themselves but their inferior Tenants whether Copy-holders or for Term of Years as also the Representatives of all the Cities and Borough Towns in England Now these might together with your Tenants in capite make so great an Assembly as might very well deserve the Title with an easie Hyperbole of Infinita or innumera multitudo as our Ancient Historians express it Whereas your Drs. Tenants in Capite could never in these first Times after this Conquest amount to so great a Multitude not being by his own Confession above 700 Persons besides the Bishops Abbots and Priors who did not make above 100 more which could never deserve the Title of an infinite and innumerable Multitude M. I must confess that neither your Notion nor your Authorities to prove it do any way satisfie me for in the first place your Argument from the Analogy between the Clergy and Layety who you say made up this Assembly does not hold for tho' I grant there might be in that part of it which we call the Convocation and was then called the Synod all the Bishops Abbots and great dignified Clergy-men nay Procurators of the inferior Clergy too if you please yet were not these who I grant were not Tenants in Capite Members of the great Council of the Kingdom but a distinct Assembly from it which treated only of Spiritual Matters and together with the Bishops and Abbots made Ecclesiastical Canons as the two Houses of Convocation do at this day yet medled not at all in Matters of a meer Civil or Temporal concern any more than the Lay Council could meddle with Spirituals and to let you see that this was true it is evident beyond dispute that this Ecclesiastical Synod was often assembled by the Authority of the Pope or Archbishops of Canterbury and York when the Common
England at this day M. I shall not farther dispute this matter at this time therefore pray go on to the rest of your Authorities out of our English Historians proving that any Knights Citizens and Burgesses appeared in Parliament before the times we allow them to have been there F. Tho I think I have sufficiently at our last Meeting from the Charters of King Iohn and Henry the 3 d as also from the Words Communitas and le Commune that the Common Council of the Kingdom consisted of many more Members than your Tenants in Capite yet to let you see that the Historians and Armalists of those times did comprehend all the several Orders under the general Titles of Clerus and Populus or Magnates and Proceres you may see in the Chron. of Thom. Wikes A. D. 1237. Where it is only said in general that the Clerus and Populus Regni did in that Year being the 9 th of Henry the 3 d grant the King a 30 th of all their Moveables for the Confirmation of Magna Charta and which is more remarkable the Parliament which was held in 1264. being 49 th of this King is onely thus mentioned by this Author in an historical way transacto siquidem viceâmo die Nâtivitatis Dominicae sacta est London pes Comitem seil Leyeestriae Convocatio non minima Procerum Anglicorum c. Where in the Annals of Waverly in this Year it is onely said Factum est Parliamentum magnum Londonia c. Now pray observe that either the Commons are mentioned by Wikes under the Name of Proceres or not at all and that under the Word Parliamentum the Commons were then comprehended appears by the Agreement between the King and the Barons there extant which is said to be made De unanimi assensu voluntate nostra sâili Regis Edwardi Filii nostri Praeletorum Vomitum Baronum Communitatis dicti Regni nostri now it must be granted since it appears by the Writs of Summons of 49 H. 3. that the Commons were there and consequently must be comprehended under this Phrase of Communitatis Regni and if this had been the first time they had been summoned 't is strange none of these Authors should take any notice of so remarkable an Alteration and change of the Constituent parts of our English Parliaments But that the Knights Citizens and Bârgesses were also summoned in the next year in a Parliament of the 50 th of this King you may see in the said Wikes Chronicle Ann. Dom. 1265. where He sets down all the Constituent Estates of Parliament which were summoned to meet at Westminster at the Translation of St. Edwards Reliques in these Words Convocatis universis Angliae Praelatis Magnatibus nec non cunctarum Regni sui Civitatum paritir Burgorum potentioribus ut Translationis Solemnia Celebrius illustrarent wherethe Knights of Shires are comprehended under Magnates and the Citizens and Burgesses are here stiled Potentiores Civitatum Burgorum And that this was not only for a meer Ceremony but for Parliament Business also see the next page where he tells us Celebratae tundem tuntae translationis solemnitate ââperunt Nobiles i. e. all the Estates above mentioned ut assolent Parliamentationis genere de Regis Regni negotiis pertracture c. And in which Parliament the King so far prevailed as to obtain a 20 th part of all Moveable Goods of the Laity And yet the Continuator of Mat. Paris in the Affairs of this year takes no notice of this Parliament but only says in General that St. Edwards Body was this Year translated into its new Shrine And the Annals of Waverly Printed in the same Volume under this Year make mention of this Parliament in general terms thus Facta Convocatione Episcoporum Comitum Baronum Abbatum Priorum multerum aliorum So uncertain a thing it is wholly to depend upon the general Expressions of Monkish Writers without comparing them and the Records together and considering the Subject matter about which they treat nor can we suppose that the Constituent parts of our Parliaments were shope and changed as often as they did their Phrases and ways of expressing the parts of them For they not foreseeing the differences that might arise about these matters had no Reason particularly to recite the Constituent Members or Estates of Parliament as often as they had occasion to mention them it being very well known who they were at that time But to prove further that it was not likely there was any Alteration in the Constituent parts of the Parliament from what it was in the 49 th may appear by his Writ still extant among the Parent Rolls of the 54 th of this King where it is expresly recited that it not seeming safe to the Praelatis Magnatibus Communicati Regni nostri that both Himself and his Son Prince Edward should be both out of the Kingdom at once in the Holy Land and that therefore he gives the whole Subsidy of a 20 th granted him by the whole Kingdom to his said Son and that it continued so in the beginning of Edward the firsts Reign appears by a Protestation in the 4 th of this King as it is found in the Patent Rolls wherein he recites a 15 th to have been granted him of all Moveables by the Comites Barones ac alii Magnates Communitas Regni nostri So that unless the Sense of these Words Communitas Regni must alter every Year there is no Reason for us to believe any change to have been in the Constituent parts of Parliament since the 49 th of Henry the 3 d. this I think may be sufficient to shew you that before the time you mention nor only the Knights of Shires but the Citizens and Burgesses did appear in Parliament both before your 49 th of Henry 3 d and 18 th of Edward I. M. I believe the Commons might be comprehended under the general Words Magnates Proceres by Wikes's Chronicle in the 49 th of Henry the 3 d or else not be mentioned at all which I rather incline to believe and I must also confess that the other Passage out of the same Author concerning the Citizens and Burgesses being summoned either to a great Council or Parliament in the Reign of Henry the 3 d is more than I before ever took notice of Yet since this Author does not tell us whether it was to the one or the other nor how many of them were there whether one onely or more for each City and Burrough Town or whether they were elected by the People or nominated by the King to appear there does not appear from this Author but as for the Words Communitas Regni mentioned in the Agreement of the 49 th of Henry 3 d tho it might signifie the Body of the Commons in that Record yet if they were not again summoned to Parliament till the 18 th of Edward the
to Parliament no otherwise but as ãâã in Capitâ for tho' the said Petition reâues that they hold the said Town of the K. in Capite yet they do not likewise say that they claim'th to appear there only by that Tenure for then they should have reâired that they sicut caeteri Burgenses Tenentes in Capite and not sicut caeteri Burgenses Regni ad Parliamenti Regis venirâ debeant And tho' it is true they set forth that they appeared there for all Services yet do they not say that their Tenure in Capitâ was the only Cause of their appearance in Parliam since divers Towns and Burrought of the Kingdom which held not in Capite at all had the like Priviledge before of which I can give you divers Instances which I shall read to you ouâ of this Note which a Learâed Friend of mine slace deceaâ'd hath taken out of the Rolls in the Tower tho' when he sent it me he thorough hast ãâã hath forgot to set down the number of the Roll to most of such Burroughs who never held in Capite and yet have always sent Burgesses to Parliament by Prescription as first the Burrough these of Arundel which always held of the Earls and never of the King being granted by Henry I. To Hugh Montgomery Earl of Arundel Secondly The City of Bath appears to hold of the Bishop of Bath and Wells Thirdly The City of Wells it self which always held of the Bishop and never of the King and is therefore called Villa Episcopi in all publick Writings belonging to that Church and was made a Free Burrough in the Third of King Iohn Fourthly Beverly was made a Free Burrough by Thurston Arch-Bishop of York which was confirmed by King Henry III. Hiââhly Badmin which always held of the Earls of Cornwall Sixthly Bridgwater for King Iohn granted it to William Brewer Quod Brugwater sit liber Burgus Seventhly Coventry which was always held of the Earls of Chester and pleaded in the Reign of Edw. I. to have never been taxed with the King's Demesnes but with the Body of the County Eighthly Bishop Linne for King Iohn granted to Iohn Bishop of Norwich Quod Burgus de Lenna sit Liber Burgus inperpetuum all which by the Writs we have left us sent Burgesses to Parliament as early as any that held in Capite These I give you only for a Taste but I doubt not but if I had time I could give you three times as many especially in Cornwall where the Burroughs did almost all hold of the Earl of Cornwall and not of the King But besides the Doctors errour in supposing that no ancient Cities or Burroughs had any Right of sending Members to Parliament but only as they held of the King in Capite his mistake is yet much more gross in his construing those remarkable words in the King's Answer to the Burgesses of St. Albans Et tunc fiat eis super hoc Iustitia vocatis evocandis si necesse fuerit Thus And then let them have Iustice in this matter and such as have been called may be called if there be necessity Upon which words you have also from the Dr. put this pleasant gloss Hence 't is clear the King and his Council were equally judges when it was necessary to call them and for them to come as they were of their Rights and Pretences to come But I must needs tell you â think nothing can be more absurd and contrary to the genuine sense of this Record than the Doctor 's construction who will needs have the words evocatis evocandis only to mean a Calling or Summoning to Parliament which is quite contrary to the true sense of the King's Answer to this Petition for if that had been his meaning that those only should be summoned to Parliament whom the King pleased to call to what purpose were these words scrutentur Rotuli c. de Cancell si temporibus Progenitorum Regis Burgenses praedicti solebant venire vel non For if their coming to Parliament had been a matter of meer grace and favour and not of right so wholly left in the King's breast whether they should come or not it was in vain for him to command the Rolls of Chancery to be searched whether the said Burgesses us'd to come to Parliament or not in the times of his Progenitors or if it had not been a matter of right why should it be here said that upon search of the Rolls Tunc fiat Iustitia let Justice be done iâ there never was such a right of Prescription by which they claimed But I much wonder that the Dr. so great a Critick in Records should ever construe them evocatis evocandis a summoning or calling to Parliament and I desire you would shew me in what Parliament Roll or Ancient Record you can find evecaââ ad Parliamentum to summon to Parliament But I more admire that you who are a profest Civilian should no better understand the sense of your own Terms whereas if you would have but consulted any Civil Law Dictionary you might have found evocaâe Testes always signifies to summon Wiânesses and I can shew you by twenty Precedents both from our Common Law Records as well as your Canon Law Forms that evocatis eâocandis does always signifie the summoning such Witnesses as are to be summon'd in a Cause and in this sense it is to be understood in this Record that not only the Rolls should be search'd but also Witnesses summon'd to prove their Claim if any dispute or doubt should arise about the matter of fact M. I shall no longer contend with you about the genuine sense of these last words since perhaps you may be in the right but yet for all that it does not appear that the King and his Council did by this Answer allow this Petition of the Town of St. Albans to be true that they had sent Burgesses to Parliament in the time of his Predecessors much less that any other City of Burrough in England were then allowed such a right by Prescription F. I grant indeed that this Petition doth not absolutely allow the matter of fact as it concerns the matter in dispute between them and the Abbot to be true as it is there set forth neither yet does it condemn it for false but whether it were true or false it matters not for both the Petition and the Answer do sufficiently prove the Point for which we make use of it viz that it was then received for a general Custom or Law time out of mind that the Cities and Burroughs had sent Members to Parliament according as in the Petition is set forth otherwise it can scarce be supposed much less believed that the Burgesses of St. Albans or the Pen-man of this Petition should dare to tell the King and his Learned Council in the face of the Parliament so great and ridiculous a Novelty to be recorded to Posterity as that they and their Predecessors
in the time of King Edward I. and his Progenitors had sent two Burgesses to every Parliament or that the King and his Council should have ever received this Petition without indignation and a severe rebuke for their Impudence If all the World theâ knew as certainly they must were it true that there was never any Election of Burgesses to Parliament before the 49th of Henry III. which was but fifty years before the 8th of Ed. II. who from thence had appeared no more till the 18th of Ed. I. which was but 24 years before the delivery of this Petition a time which must have been then fresh in the memories of most of the Kings Council there present Whereas they allow this general Claim of Prescription and every person tho' but meanly skill'd in our Law does understand a general Prescription viz. Ã tempore cujus contrarium memoria hominum non existit what it was then and so remains by the Law of England at this day as appears by our Ancient Records Law-books and Judicial Proceedings And surely the Burgesses of St. Albans did not ground their Petition of Right upon an Affirmation in Nubibus but the Justice certainty of their Claim as they very well knew which so they prayed it might be examined by uncontroulable proofs The Rolls of Chancery and the King Chancellor and all the Council did no less know there were such Entries on the Rolls and therefore order their search whereas if the very ground of their Petition had been notoriously false and idle as it must have been if neither this nor any other Burrough had sent Burgesses to Parliament before the 49th of Henry III. then instead of recording this Petition and Answer to future Ages they would with contempt and indignation have rejected it nor would the Abbot of St. Alban's Council and the Sheriff of Hertford against whom this Petition was exhibited have been wanting in their own defence to have shewed that this Ancient Prescription not only of this but of all other Burroughs was a meer Chimera and Fable But instead of this we do not find they made any opposition against it because they knew they had been summoned and appeared at divers Parliaments before that time as you may see in Prins Parliamentary Register they were in the 28th of Edward I. which is almost as early as we have any Writs of Summons left us to the Commons of this King's Reign And tho' it is true the Sheriff of Hertford in this 28th returns that the Bailiffs had made no Return of the Precept sent them yet this plainly proves that they were then looke upon as a Burrough and that it was very well known that it was wont to send Burgesses to Parliament or else it had been a vain thing for him to have sent them any such Precept at all And tho' it is also true there are no more Returns from St. Albans left us till the 35th of Edward the First yet that is no good Argument against their Appearance in the former years since the Writs and Returns upon them being in loose bits of Parchment might very well be lost as well as they are for many other places But that the Burgesses of St. Albans were summoned and appeared in Parliament in the 35th of Edw. I. appears tho' the Returns be lost by the Writs of Expences of this year being the first we have left us in Prin's Parliamentary Register for the Cities and Burroughs in which Lift the Burgesses of St. Albans are first upon the Roll and that they were in Parliament before this time may further appear by that Clause at the end of the Writ which I have already taken notice of viz. That they were to have their Experces for coming staying and returning prout in casu consimili fieri consuevit which words relate to Ancient Custom and extend to St. Albans as well as no any other Burrough there mentioned And that they also were summoned appeared in primo jecundo of Edward the Second in whose Reign this Petition was exhibited you may see in Prin's Parliamentary Registers both third and fourth parts in the last of which you may find the Names of the Burgesses returned in the first and fifth of this King as they might have been seen also in the second Had not the Return as Mr. Prin then acknowledges been torn off tho' it is plain that they appeared there and so may be likewise lost for all the rest of the years of this King till the Second of Edward the Third when we find they appeared again and so continue to send Burgesses to this day And if it be a good Argument of their Non appearance from the defect of Records I 'll undertake to prove that London and several other Cities did not send any Citizens to Parliament in several Kings Reigns as you may see in this List of Towne whose Writs of Expences we now mentioned of the â5th of King Edward the Firstâ where London and most other great Cities are omitted and yet St. Albans is in To conclude it is certain that this was no new Claim of this Burrough as appears by a Writ of the 5th of Edward the Second to the Sheriff of Hertford that the Bailiffs of the Abbot had refused to Levy the Expences for Ralph and Peter Picot who had served as Burgesses for the said Town in the last Parliament whereupon the said Ralph and Peter set forth before the King that the said Town used not to be Taxed with other Burroughs of the said County for the Expenses of Knights totis temporibus retroactis but that it is a Free Burrough and used to be summoned to Parliaments which have been summoned by the King and his Progenitors temporibus retroactis and that the Burgesses of the said Town used to receive their Expences as the Burgesses of other Burroughs of the Kingdom to which Plea and Petition of the said Burgesses when the King had appointed a day both to the said Burgesses and Bailiffs of the Abbot to appear before him in Chancery they failing at the day appointed the King therefore Issued out this Writ to the Sheriff of Hertford to summon the said Abbot and Bailiffs to appear again before him to shew cause why the said Ralph and Peter should not receive their Expences as aforesaid M. I will consider further of this Argument for I must ingeniously confess I never heard or understood so much of this matter before But pray proceed to the rest of your Authorities F. But that it was not only the Opinion of the Burroughs of St. Albans and admitted by the King and his Council but that also that it was the belief of succeeding Parliaments that the Commons were part of the great Council of the Kingdom long before the 49th of Henry III. for proof of which I desire you to call to mind that King Iohn in the 14th of his Reign made himself and Crown tributary
that they ever should desire this as a Priviledge and therefore it is onely since the neglect of this good old Law for Wages that so many Burroughs which Mr. Prin here mentions to have had Precepts again sent them of late Years to Elect Members after some Ages Intermission desired to have this Priviledge renewed to them as was done in the Case of those Burroughs he here mentions which yet certainly had been very gross and contrary to all common Right if the House of Commons had not then believed those Burroughs to have a had higher Right by Prescription than the Sheriffs Precepts gave them as for the last Rank viz. those Burroughs created by the Writs or Charters of our Kings I need say but little since this Author here grants such Creations to have been good before the Statute of 5th of Richard the 2d but not since tho I cannot see any Reason for it why he should give the Sheriffs such Power of making new Burroughs after this Statute in the time of Henry 6th as he does in the Case of Gatton and those other Burroughs he there mentions with it and yet deny this King the like Prerogative But yet for all this as I will not say there were none so are there but very few Examples of Charters that conferr upon any City or Burrough a Power to send Members to Parliament who had it not before by Prescription tho I grant that Priviledge may be mention'd in the Charter and so put it in the Power of the Major and Aldermen to Elect for the future when it was the whole Populace or all the Inhabitants of that Town that were to Elect before But to shew you from the very Statutes themselves that Mr. Prin has here cited that the Right of the Cities and Burroughs to appear in Parliament was not anciently looked upon to have had no other Original then the Favour of the Sheriffs Pray read these Clauses of the Statutes he has here quoted the first is that memorable Statute of the 5th of Richard 2d 2d Parl. c. 5. now mentioned and which I have already cited which expresly Enacts That all and singular Persons and Commonalties which from henceforth shall for time to come have Summons of Parliament shall come from henceforth as before to Parliaments in the manner as they be bound to do and hath been accustomed within the Realm of England of old time and whatever Person of the said Realm which from henceforth shall have the said Summons be he Archbishop Bishop Abbot Prior Duke Earl Baron Banneret Knight of Shire Citizen of City Burgess of Burgh or other singular Person or Commonalty do absent himself and come not at the said Summons except he may reasonably and lawfully excuse himself to our Soveraign Lord the King he shall be amerced and otherwise punished according as of old times hath been used to be done within the said Realm in the said Case and if any Sheriff of the Realm be henceforth negligent in making his returns of the Writs of the Parliaments or that he shall leave out of the said Returns any Cities or Burroughs which be bound and of old Times were wont to come to Parliament he shall be punished in the manner as was accustomed to be done in the said Case of Old Time in the French d' Anciente From which Statute we may draw these Conclusions First That the Knights Citizens and Burgesses are as supposed by this Statute to have a like Right to have Summons to Parliaments as hath been accustomed of Old Time as well as the Lords Spiritual and Temporal here mentioned Secondly That by these Words have been accustâmed of Old Time or d' Anciente we are to understand a general Custom of the Realm Time out of Mind that is by Prescription so that if the Bishops Abbott and Temporal Lords are here acknowledged to have had a Right to sit in Parliament by Prescription so have the Commons likewise by the same Words equally applyed to all the Orders here mentioned Lastly That if the Sheriffs shall neglect in making Return to any such Cities and Burroughs which were thus bound to come to the Parliament of Old Time he shall be punished as hath been accustomed to be done in all time past or d' Anciente now pray tell with what colour of Justice the Sheriffs could be thus punisht if there had been no certain rule to know what Câties and Burrough were bound to come to Parliament of Old Time but it had been wholy left at the Sheriffs Discretion which they should Summons and which they would omit let us next compare this with the Statute of 23d of Henry 6th c. 15. which Mr. Prin has here also given us reciting That divers Sheriffs of Counties have sometimes returned none of the Knights Citizens and Burgesses lawfully chosen to come to the Parliaments but such Knights Citizens and Burgesses have been returned which were never duely chosen and other Citizens and Burgesses than those which by the Mayors and Bailiffs were to the said Sheriffs returned and moreover by no Precepts to the Mayors and Bailifts or to the Bailiff or Bailiââi where no Mayor is for the Electing of Citizens and Burgesses to come to the Parliament and then appoints the Penalties for the said abuses and neglects Now pray let me ask you whether this bare Abuse of the Sheriffs and neglect of the duty of their Office here condemned by this Statute and for which the former Statute of Richard II. declares them punishable at Common law as this Act makes them liable to it by Statute Law could give them such an Arbitrary Power as this Author fancies much less can serve to corroborate his Opinion as he here supposes it does concerning the true original continuance discontinuance reviving and antiquating Parliamentary Cities and Burroughs not by Charters and Patents from the King or Prescription time out of mind but by the Sheriffs Arbitrary Power and Returns by the forecited general Clauses in the Writs But since I confess I have dwelt too long on my Answer to Mr. Prin's Arguments I shall conclude with only giving you one Record which I hope will sufficiently satisfie you that not only St. Albans but several other Antient Burroughs claimed to send Burgesses to Parliament by Prescription which appears by a Writ or Commission reciting a Peâition of the Town of Barnstaple to King Edward the Third and his Council in Parliament which is to be found in the Patent-Rolls of the 17th of this King seting forth that the said Town had been a Free Burrough à tempore câjus contrarii memoria non exisâit and as such enjoyed divers Liberties and Free Customs by a Charter of King Athelstan and this among others ac quod ad singula Parliamenta nâstra dictorum Antecessorum nostrorum among which the said King Athelstan must certainly be reckoned for one duos Burgenses pro Communitate ejusdem Burgi mittere solebant and therefore
that Charter being lost they desire a Confirmation of it from the King whereupon He by this Commission directs a Writ of Enquiry to several Gentlemen and others therein mentioned to enquire if the said Burgesses had enjoyed all those Liberties so granted by the said Charter of King Athelstan or not which would have been ridiculous if the King and Council had been satisfied that no Cities and Burroughâ sent any Members to Parliament under the Saxon Kings and not before the 49th of Henry the Third and this Authority is the more remarkable because Barâstaple is one of Mr. Prin's Modern Burroughs for which he can find no Precepts or Returns earlier than the 26th of Edward the Third tho' no doubt as appears by this their Petition in the 17th of this King it had sent Burgesses to Parliament many Ages before tho' the Precepts and Returns upon them be all lost And that not only the Cities and Burroughs do thus claim by prescription but that the Knights of Shires have always claimed the same Priviledge may appear by another Petition of the Commons House extant on the Parliament-Rolls of the 51th of Edward the Third which I shall contract and put into English out of French reciting thus because of Common Right in the Roll de Commune dâoit of the Realm there are and shall be Elected two from every County of England to come to Parliament for the Commune of the said Counties And also the Prelates Dukes Barons Counts Barons and such as hold by Barony which are and shall be summoned by Writs to come to Parliament except the Cities and Burroughs who ought to Elect from among themselves such as ought to answer for them Whence we may conclude that the Commons then claimed to come to Parliament of Common Right that is by Common Law or general Custom of the Realm time out of mind as much as the Bishops Abbots and great Lords 2. That neither the Bishops Lords nor Tenants in Capite had any Authority to impose Taxes or make Laws for the Commons of the Counties or these for the Cities and Burroughs without their consents because they had each of them Representatives of their own Order to answer for them in Parliament M. I must confess this would have been absolutely convincing could we have seen this Charter of K. Athelstans but since the Towns-men of Barnstaple do only in their Petition among others set forth this priviledge of sending Burgesses to Parliament now who can tell whether there was any such thing in their Charter or not since they confess they had lost it Or granting it was as they set forth yet is will sufficiently evince that the right of Cities and Burroughs to send their Representatives to Parliaments was not as you suppose as ancient as the Government but had its Original from the Grants and Charters of former Kings F. As to these Objections we can have but all the proof that this Subject is capable of at such a distance of time but if I were a Jury-man in this matter I should rather believe that the Town of Barnstaple had such Charter not long before they made this Petition to King Edward the Third and that there was such Clause therein as they here set forth than that these Towns-men should be so impudent as to desire a new Charter of Confirmation from him of all their priviledges of which this of Electing Burgesses was one if there had never been any such Clause in it at all But as for the other Objection that if it were so then it appears that all the right of Cities and Burroughs sending Members to Parliament is derived from the Grants and Charters of former Kings it is very fallacious as you will find if you consider and compare the Ancient right of the Bishops and Abbots as also of all the Temporal Nobility to come to the great Council of the Kingdom which as to the first of them I proved to be as Ancient as Christianity it self among the English Saxons And as for the Priesthood and Nobility in general to have been as old as the Institution of the Government it self Now tho' you grant that long before the Conquest our Kings had the nomination of Bishops and Abbots and also the making of Aldermen Earls and Thanes who made the Temporal Nobility in those great Councils will it therefore follow that because our Kings were thus entrusted by the people with this prerogative of naming and investing Bishops and Abbots per Annulum Baculum and also of creating those great Men now mentioned that therefore all the right either Order had to appear at those Councils not only proceeded from but depended wholly on the King's good will and pleasure and that he could have chosen whether he would have named any Bishops or Abbots to vacant Sees and Abbeys or made any Aldermen Earls and Thanes or not but have changed the whole frame of the Government into an Absolute Despotick Monarchy by destroying the great Council of the Kingdom whether you believe the Clergy Nobility and People would have suffered any of those Kings to have made such an Innovation Apply this to the right of the most of Ancient Cities and Burroughs in England and see if it do not exactly agree with this parallel Case of the Bishops Abbots and Temporal Nobility since as there were Priests and Nobles who from the very first Institution of our great Councils did not owe their Original to the King but brought it with them out of Germany and to whose Suffrages the first Saxon Kings owed their Elections so no doubâ were there divers Cities and Towns in England so considerable from the time of the Expulsion of the Britains that it was thought âit to pitch upon them as most able to send Representatives to the great Councils of the Nation that so they might imitate their old Government in their own Countrey in which the great Cities and Towns had always a considerable share as they have in the German Diets to this day tho' the King might then as he is now be entrusted with the Prerogative of making new Cities and Burroughs with like priviledge with the old ones tho' this was but rarely practised till the Reign of King Iames I. The two Vniversities being some of the first Corporations on which he conferred this priviledge by Charter of Electing and sending two Burgesses to Parliament which power has I confess been exercised even to a grievance in the Reigns of his Son and Grand-sons so that it were to be wisht that there was a Law passed that no New City or Burrough should be made for the future without an express Act of Parliament Now I would very gladly hear what you can further say to so many weighty Authorities which I have now given you for evident it is that if they are compared and considered in series of time that neither Edw. 2d or 3d nor their Judges or Learned Council no nor the Parliaments
of their and succeeding times had ever heard any thing of Dr. Brady's Annus Mirabilis or 49th of Henry 3d. which was but 43 years before the Reign of Edward 2. his Grand-child and little above 60 years before that of Edward his great Grand-son M. Well notwithstanding all this whosoever will reflect upon what the Doctor hath writ may suspect that the Judges nay Parliaments were very ignorant in the History of this Nation or that they spoke out of design And it is a great Argument that the Lawyers studied and knew only Popular and Lucrative Law and not the Constitutions of the Nation before their own time And tho' I must confess what you have now said may seem to me to carry some weight with it yet since I do not easily change my Opinion upon the first hearing of a new Argument or Authority give leave better to consider what you have said but in the mean time since you have now mentioned the German Dyets pray Sir before we leave off shew me what you undertook to prove at the first entrance on this Subject viz. that in all the great Councils or Assemblies of Estates in Europe which are derived from the Germans and Goths there are found Representatives for the Plebeians or Commons distinct from the Clergy and greater and lesser Nobility F. I readily agree to your desires but since my own Notes concerning this matter are very long and that I have them not about me pray give me leave to make use of the Authority of Dr. Heylin an Author you have no reason to look upon aâ partial since he was not only remarkable for his great skill in History but also as being a great Friend and Disciple to Sir Robert âilmer in Politicks was a vehement assertor of Absolute Monarchy and an utter Enemy to the Power of Parliaments yet this very person in his Treatise called The Stumbling of Disobedience and Rebellion c. printed 1658. in his 5th Chapter I have already quoted for the Inferiour Clergy's being anciently a part of the great Council or Parliament of the Kingdom proves the Uniformity of the three Estates to have been the same in all the Christian Kingdoms on this side of Europe he runs thorough them all beginning with Germany which I shall contract because he there says a great many other things not so material to our present purpose And first beginning as of right with the German Empire Thuanus gives this Note in general Imperium in tria omnino membra dividitur that the Empire is divided into three Estates over all which the Emperor is the Head or Supreme Prince Of these the first Estate is ex sacro Ordine of the holy Hierarchy composed of the three Spiritual Electors together with the residue of the Arch bishops and Bishops and many Abbots Priors and other Prelates The second is of the Nobility consisting of the three Temporal Electors the Dukes Marquesses Lanâgraves Bâtgraves Earls and Barons of which there is no determinate number the Emperor having power to add daily to them as he sees occasion The third Estate is of the free or Imperial Cities in number sixty or thereabouts who represâât themselves at the General Diâts by such Commissioners or Deputies as are authorized to that purpose Next pass we over into France and there we find the Subjects marshalled into three Estates whereof the Clergy is the first Rex coactis tribus Ordinibas Sacerdotio Nobilitate Plebe subsidia rei pecuniariae petiit So Paulus Aemilius doth inform us Out of these three are chosen certain Delegates or Commissioners some for each Estate as often as the King's occasions do require their meeting the time and place whereof is absolutely left unto his disposing and these thus me do make up the Conventus Ordinum or L' Assemblie des Estats as the French men call it in form much like the English Parliament and of the meeting of these three Estates not only this Author but all the other French Historians and in particular Phil. de Commines make frequent mention Pass we next over the Pyrenââs to the Realms of Spain and we shall find in each the same three Estates whose meeting they call there by the name of Curia the Court ãâã ãâã ãâã ãâã ãâã by way of eminency consisting of the Clergy the Nobility and the Commisioners of the Provinces and most Ancient Cities For proof of which we need but look into the General History of Spain translated out of French by Grimston and we shall find a Court of Parliament for the Realm of Aragon consisting of the Bishops Nobles and Deputies of Towns and Commonalties having place in the said Estates convened by K. Iames at Saragassa Anno 1325. for setling the Succession and declaring the right Heir Also for Castile we find a Parliament of Lords Prelates and Deputies of Towns summoned at Toledo by Alfonso the Noble Anno 1210. upon occasion of an Invasion made by the Moores another before that at Burgos under the same King Anno 1179. for levying of Money on the People to maintain the Wars Also that great Convention of the States held at Toledo by Ferdinand the Catholick 1479. for swearing to the Succession of his Son Don Iohn in which the Prelates the Nobility and almost all the Towns and Cities which sent Comissioners to the Assemblâ are expresly named Thus finally do we find a Meeting of the Deputies of the three Estates of Navarre at the Town of Tosalla Anno 1481. for preserving the Kingdom in obedience to King Francis Plâeoâs being then a Minor under age and for Portugal that the Deputies of the Clergy Nobility Provinces and good Towns of Portugal assembled at Tomaâa Anno 15â1 to acknowledge Philip the second for their King and to settle the Government of that Kingdom for the times to come Now let us take a view of the Northern Kingdoms and still we find the People ranked in the self same manner and their great Councels to consist of the Clergy the Nobility and certain Deputies sent from the Provinces and Cities as in those before In Hungary before that Realm received the Gospel we read of none but Nobiles Plebeii the Nobility and common People who did concur to the Election of their Kings but no sooner was the Faith of Christ admitted and a Clergy instituted but instantly we find a third Estate Episcopos Sacerdotum Collegia Bishops and others of the Clergy super added to them for the Election of the Kings and the dispatch of other businesses which concerned the publick as it continueth to this day In Danemark we shall find the same if we mark it well For though Pontanus seem to count upon five Estates making the Regal Family to be the first and subdividing the Commons into two whereof the Yeomanry makes one and the Trades man or Ciâizen the other yet in the body of the History we find only three which
are the Bishops the Nobility and Civitatum delegati the Deputies or Commissioners of Towns and Cities For Sweden it comes near the Government and forms of Danemark and hath the same Estates and degrees of People as amongst the Danes that is to say Proceres Nobiles the greater and the less Nobility Episcopi Ecclesiastici the Bishops and inferiour Clergy Civitates Vniversitates the Cities and Towns Corporate for so I think he means by Vniversitates as Tâuanus mustereth them To which we may also add tho here omitted by this Author the Delegates of the Rusticks or Husbandmen who make a fourth Estate in the Assembly of Estates of this Kingdom And in this Realm the Bishops and Clergy enjoy the place and priviledges of the third Estate notwithstanding the Alteration of Religion to this very day the Bishops in their own Persons and a certain number of the Clergy out of every Sochen a Division like our Rural Deanries in the name of the rest having a necessary Vote in all their Parliaments And this Swedish great Council is the more remarkable because it comes very near our Constitution in England in which I proved the Inferior Clergy and the Commons not excepting the meanest Freeholders anciently had their Representatives So that it had been the strangest thing that could have been observed in all the Political Constitutioâs on this side of Europe if that of England tho descended from the same Gothick Original and founded according to the same model should have had no Representatives for the Commons or Plebians in their great Councils or Parliaments The Dr. here concludes with Scotland and England the former of which since you agree to have had from all times Citizens and Burgesses in their great Councils or Parliaments I need not repeat what is there since it is no more than what you your self have granted and as for England he owns as appears by the Passages I have already cited out of this Chapter that the Clergy Nobility and People were called to a Parliament held under Henry the ad at Clerkânwell M I will not deny but there were Representatives of the Cities and great Towns in the great Councils or Assembly of Estates of all those Kingdoms you have now mention'd out of Dr. Heylins Treatise yet whether they were there from the very first Institution of those Governments is much to be doubted But since I have not now leasure to inquire into the Original of all these Kingdoms nor at what time each State began to come to these great Councils give me leave in the mean time to remark that all these Kingdoms except Sweden came nearer to that Constitution which we suppose to have been anciently in England and Scotland and also other Kingdoms where feudatory Tenures were observed and consequently none but the Chief Lords or Barons by Knights Service and that held of the King so that all those Foreign Councils or Dyeâs c. at first were all the same as consisting of Emperours or Kings with their Earls and Barons Bishops and great Officers as is evident from all the old German and French Authors and since Cities sent Deputies in Germany and Italy they were only from Imperial Cities the like I believe would be found in France and those other Kingdoms you have now mentioned but you cannot shew me unless in Sweden any Representatives elected by the Common People or Rusticks distinct from the Nobility and Gentry like our Knights of Shires in England So that I still doubt whether all the Representatives of the great Lords and other Nobility that appeared in the Councils of these Kingdoms were not all Tenants in Capite and no other F. That this is a meer surmise of yours I think I can easily prove for in the first place as for the Bishops Abbots and Clergy who still made the first Estates in all these Kingdoms nothing is more certain than that they never any of them held of the King by Knights Service and therefore could not ãâã in their great Councils by that Tenure that Institution being for ought as I know peculiar to England and introduced by your Conqueror as you your self acknowledge and as for the Temporal Nobility you will find that in France not onely those Noblemen that held of the King by Military Service but those who held in libero Alodio without any such Service at all had places either by themselves or their Deputies in the Assembly of the Estates so likewise for the Cities and Towns that sent Deputies to it I believe you will not find that any of them held of the King in Capite and to come to Germany you are likewise as much mistaken in fancying that all the Imperial Cities were Subject immediately to the Emperor before they became so for Hamburgh and Lubec were Subject to their own Princes the former to the Duke of Holstein and Sleswic and the latter to Earls of its own till at last they either purchased their Liberties they enioy from their Princes or else cast them off and were after received into the Body of the Diet by the Bulls or Charters of several Emperors and so likewise Brunswick was always a fââe City till it was united to the Empire by its own Consent I could shew you the like of several other Cities now called Imperial who held anciently not of the Emperour but either of their own Earls or Bishops tho I grant it was the Charters of the Emperor with the Consent of the Dyet that gave them a place in those Assemblies and tho it is true that in all the rest of these Kingdoms the meer Rusticks or Paisants have no Representatives in their great Councils yet this makes no Alteration in the Case if you please to consider it for the Nobility and Gentry are the only true and proper owners of the Lands of those Kingdoms all the Rusticks or Paisants being meer Vassals and in France almost Slaves to their Nobility and Gentry who as I have already said had all alike Votes in their Assembly of Estates as well those who held of the King in Chief by Knights Service as those that did not whereas it was always far otherwise in England where the meanest Freeholder was always as free as to his Person and Estate as the greatest Lord of whom he held and hence it is that we have had from all Times those of the degree of Yeomen so peculiar to England as Fortiscut in his Treatise de Laudibus Legum Angliae takes notice who if they lived on their own Lands had no more dependance on the Noblemen and Gentlemen than they have now and therefore it was but Reason that these should have their Representatives in Parliament as well as the Inhabitants of the Cities and Burroughs who had most of them a far less share in the Riches and real Estates of the Kingdom Secondly Pray take notice that in the rest of the Kingdoms of Europe except
England and Scotland there was no difference in Point of Priviledges as to being taxed or having Voices in the great Council of the Kingdom between the higher Nobility such as had the Titles of Dukes Marquesses and Counts and simple Gentlemen whereas in England it has been always otherwise at least since the Conquest and the Earls and Barons had by ãâã Tenures Places as Lords or Peers in the great Council of the Kingdom and so made a distinct Body from the rest of the People whereas in other Countreys the higher Nobility and Gentry are reckon'd as all one Estate and therefore it was but Reason that the rest of the Inferior Nobility or Gentry should have their Representatives in this great Council or Parliament or otherwise they would have been as very Vassals as to their Estates to the great Barons and Tenants in Capite as the Boors in Germany or the Paisants in France were to their Lords by whom they were taxed aâ their Pleasures which they never were in England as we can find either from History or Records So that tho I grant that it is the municipal Laws of each Kingdom or Nation that must determine what are the governing part of the People in those Countreys yet tho that was not absolutely the same in all of them as it is in England yet we find it so in the main and the Representatives of the Cities and Towns do sufficiently assert the Right of the Plebians or Common People who make the 3d Estate in those great Councils But I must here except Sweden in which it is certain that the meer Rusticks or Boors had always their own Deputies in their Dyets as well as the Cities and Towns and if Sweden had this priviledge I cannot see why the English Gentry and Yeomanry who make but one body of Commons might not have had the like till you can shew me more sufficient proofs to the contrary M Well Siâ I shall consider of what you say but since it grows late that we may wind up this Conversation as fast as we can give me leave to tell you that tho' I should admit all that you have hitherto averred for truth and that we should grant the Commons of England to have been as ancient a part of the great Council or Parliaments as any of the other two what is that to the main Point in question between us viz that of Non-resisâance of the King upon any account whatsoever or how can you justsfie those of the Clergy Nobility and Gentry of the Church of England for taking up Arms against the King and contributing so much as they have done to the driving him away and in bringing things to this confusion they are now in since let your Constitution of great Councils and Parliaments be never so ancient let us also for once suppose them as you do to have a share in the Legislative Power of the Nation yet how can this authorize them much less any private persons out of Parliament to take up Arms against the King or those commissioned by him since the whole current both of Common as well as Statute-Law runs directly against you and all with one consent assert that the disposal of the Militia or Military Force of the Kingdom has been even so absolutely in the King's power and at his disposal that no man can without being guilty of Treason take up Arms whether offensive or defensive without his Commission to authorize him to do it so that no Government in the World is more averse to all forcible Resistance than our own the King having been even from your time beyond memory so fully possest of the whole Militia or power of raising offensive or defensive Arms in this Kingdom that it is expresly forbid by the Statute of the 7th Ed. I. against coming to Parliaments and Treatises with force of Arms in which the King sets forth That in the last Parliament the Prelates Earls Barons and the Commonalry in Latine Communitas or Body of the Realm have said that to us i e. to the King it belongeth and our part it is through our Royal Seignâury to defend that is in old French to forbid force of Armour and all other force against our Peace at all times when it shall please us and to punish them according to our Laws and Vsages of our Realm and hereunto they are bound to Aid us as their Soveraign Lord as oft as need shall be From whence you may observe that it is the King's Prerogative to forbid all manner of Arms or Armed force within the Realm so that no man can lawfully Arm himself without his Authority And this is further confirm'd by the Statute of 25 Ed. the Third concerning Treasons wherein it is declared without any excepted Cases to the contrary That to Levy War against our Lord the King in this Realm or to be adherent to the King's Enemies in his Realm giving them Aid or Comfort in the Realm or elsewhere is Treason And Sir Edward Coke upon this Statute saith thus That this was High Treason before by the Common Law for no Subject can Levy War within the Realm without Authority from the King and if any man Levy War to expulse Strangers to deliver men out of Prisons to remove wicked Councellors or against any Statute or to any other End pretending Reformation on their own heads without Warrant this is Levying of War against the King because they take upon them Royal Authority From which Statute as also from your own Oracles Sir Ed. Coke 's Interpretation of it you may observe that it is not only Treasân to make War against the King's Person but to take Arms to make any Reformation or Alteration in Church or State without the King's Authority nor can any Subject of England justifie the taking Arms upon any account whatsoever unless it be by the King's Commission and therefore all the Judges of England in the Case of Dr. Story who was Executed for Treason in the Reign of Queen Elizabeth did with one consent agree that the very Consultation concerning making War against the Queen shall be interpreted a making War against her Person and supposes a design against her Life So that nothing seems plainer to me than that by the Ancient as well as Modern Laws of England all defensive as well as offensive Arms are expresly forbidden and condemned F. I think I shall be able to make out notwithstanding what you have now said that all Resistance of the King or those commissioned by âim is so far from being Treason as you suppose that it is every mans duty to oppose him in case he goes about to set up instead of a Legal Monarchy a Tyrannical Arbitrary Power in this Nation since this is but to preserve the Original Constitution of Parliaments which in some cases cannot be maintained without such a Resistance be allowed But to proceed to the Authorities you bring from our Statutes as for the first you urge
against those that are Commissioned by him in pursuance of such Military Commissions and it is also to be noted that all Mayors of Cities or other Corporations were obliged by a former Statute of the 13th of this King to take the same Oath From both which Statutes and Declaration we may draw these Conclusions First That the Militia i. e. the Command of all Military Forces and War-like Affairs are declared to be wholly in the King Secondly That either or both Houses of Parliament cannot make any War offensive or defensive against him c. Pray mark that Thirdly That the contrary practice hath tended almost to the destruction of this Kingdom and that many evil and Rebellious Principles whereof this without doubt is intended for the chief have been instilled into the minds of the People c. And lastly That in pursuance thereof all persons above-mentioned were not only obliged to renounce taking up Arms against the King upon any pretence whatsoever but also against any that shall be authoriz'd by the King 's Military Commissions without any Exceptions And it is farther Enacted That all Clergy-men should be obliged to take this Oath as well as the Laity and it is likewise there ordained That all Clergy-men who were to enjoy any Livings or Preferments in the Church were likewise for the space of Twenty Years next ensuing obliged to subscribe this Declaration so that it is no wonder if the Loyal Clergy of the Church of England think themselves not only tied by the Express Rules of Scripture but also by the Laws of the Land strictly to observe this great Law of Passive Obedience and Non-Resistance Now pray see here the Doctrine of Non-Resistance in its full amplitude yea this very Doctrine declared to be the Law of this Kingdom and that by two express Acts of Parliament And can you think the Two Houses were not in earnest when they made this Declaration surely had they not been so they had been very ridiculous to jest with all our Laws and Liberties had they not been I say verily perswaded of the truth of this Doctrine by Law as well as by Scripture So that I hope you must now be forced to confess that even our own Representatives have solemnly renounc'd for themselves and the whole Nation all right of Resistance so much as defensive against those Commissioned by the King upon any pretence or occasion whatsoever and we have left us nothing whereby to defend our selves against our Kings or those Commissioned by them no not if they never so much abuse their power but the old Primitive Artillery of Preces and Lachryma F. As for what you have more than once said that this Doctrine of Resistance if carried home always ends in the Deposition and Murder of the King tho' it hath I grant sometimes happened yet that has not been always so but most often to the contrary as appears in those Resistances that were made in the Reigns of King Richard the First Henry the Third Edward the First and divers times in Edward and Richard the Second's Reign before things were driven to that extremity as they afterwards were and as I will not justifie the Deposition of those Princes tho' done by Parliament yet will I not absolutely condemn them since no Act of Parliament hath as I know ever done it And tho' it is true all the proceedings in Parliament against Edward the Second are taken off the Rolls yet was it not done by Order of Parliament but by Richard the 2d alone when he by his exorbitant courses feared to be served after the same manner but that there was in those times some Ancient Law extant which was also destroyed by that King appears by that remarkable Declaration of the Lords and Commons in Parliament sent by way of Message to the King then wilfully absenting himself from the Parliament by the Duke of Gloucester his Uncle and the Bishop of Ely who sure were too great to tell so notorious a Lye The Speech you will find at large in Knyghton beginning thus Domine Râx And after many Petitions and good Advices at last thus concludes which I shall give you in Latine Sed unum aeliud de animo nostro superest nobis ex parte Populi vestri vobis intimare habint enim ex antiquo Statuto de facto non longe retroactis temporibus experienter quod dolendum est habito si Rex maligno Consilio quocunque vel inepta conââmacia aut contemptu seu protervae voluntate singulari aut quovis modo irregulari se alienaverit à Populo suo nec voluerit per jura Regni Statuta laudabiles Ordinationes cum salubri Consilio Dominorum Procerum Regni gubernari regulari sed captiosâ in suis inâanis Confiliis propriam voluntatem suam singularem proterve exercere tunc licituâ est iis cum comâuni assensu Populi Regni ipsum Regem de Regali solio abrogare propinquiorem aliquem de stirpe Regis loco ejus in Regni solio sublimare From whence you may observe that the Lords here relate to an Ancient Statute or Law then in being tho' the execution of it on the person of his great Grand-father Edward the Second was but of times not long passed and that King Richard might as well destroy the Record of that Law being not then commonly known or in private mens hands as well as he did divers other Records as appears in the 24th Article against this King wherein it is set forth That the said King had caused the Rolls of the Records touching the State and Government of this Kingdom to be defaced and razed to the great prejudice of his People and the disinherison of the said Realm c. So that nothing is more certain than that the Two Houses of Parliament at that time did look upon it as their undoubted right to Depose the King in case he violated the Fundamental Laws and Constitutions of the Kingdom tho' how this could consist with that Power which the King then exercised of calling and dissolving Parliaments at his pleasure I do not understand since it can never be supposed that a King if in full power would permit a Parliament called in his name to sit to Depose himself for Evil Government As for the Resistance made by the Two Houses against King Charles the First I shall not undertake to justifie for the Reasons already given as also because it it was not a War undertaken by the general consent of the whole Kingdom but carried on chiefly by the Puritan or Presbyterian Party For tho' the City of London and many other great Towns were for the Parliament yet it is also certain that the major part of the Nobility and Gentry of England fought for the King and were so considerable a number as to make an Anti-Parliament at Oxford so that this War could never have happened had not the King parted with the power of
against the Tyranny of the Duke D'Alva in the beginning of the Belgick Wars and it was soon after seconded by the revolt of divers other Cities and Towns in those Provinces till the Spaniards were quite driven out M. I do not deny but you speak more moderately on this Subject than most of your opinion who think every private man has a right to take up Arms and raise a Rebellion whenever he judges his Person or Estate is invaded or injured by the Government And indeed this remedy of Resistance seems at first sight prety tolerable if it were not that we very well knew that this many-headed Beast the Multitude is very apt to be deluded by the cunning Speeches and sly Insinuations of factious and ambitious Men whose Interest it will always be to fish in troubled Waters and raise Disturbances to make themselves the Heads of a Party Thus in the Year 42. what Lies and Stories were there raised to incense the People against that good King to make them take up Arms against him as an Invader of their Liberties and one that was about to make War upon them And who that is not over-partial to his own Opinions does not see that the Nation has been blown up into a flame by the lying Reports of a French League and a Supposiâirious Prince of Wales neither of which I durst pawn my life have the least tittle of truth in them so that this Doctrine can scarce fail almost every time it is put in practice to bring all Government to Anarchy and Confusion F. I have already in part answered this Objection at our Third Meeting but since you will urge it over again I shall in the first place admit the Matter of Fact to be as you say that the People may by some turbulent Demogogues be sometimes so far incensed as to take up Arms when there is no just Occasion but let me tell you I doubt that neither of the Instances you have given will make good your Assertion for in the first place as to King Charles the First it is said by all Writers on the Parliaments side that the King by leaving his Parliament and going to York and there taking a Guard when no Enemy was near and when the Parliament had as yet raised no Forces at all as also by his going to Hull to remove the Magazine of Arms that lay there in order to put them into the hands of an Army to make War upon the Parliament who then demanded the Settlement of the Militia to be in Commissioners of their Nomination that he thereby broke his Coronation Oath whereby he was Sworn to Govern according to Law and not by force But as for what you say as to the present juncture of Affairs I never can desire a more plain proof of the Peoples necessity of âaking up defensive Arms since admitting that neither of the Reports concerning the French League and the false Birth of this supposed Prince be true yet I think the Nation has had sufficient Provocations to rise as one man and joyn with the Prince of Orange for the obtaining of a free Parliament to set all things right which the King 's violent illegal Administration has so much discomposed But admitting the utmost you can suppose that sometimes the people may Judge amiss as well as the King and through that mis-information may take up Arms against their Prince when there is no real Occasion shall this abuse of a right be a sufficient cause against there ever exercising of it at all I am sure this is no good Argument against the natural Right of Self defence between private persons in the state of Nature that some men do often abuse it nor can I see how upon these Grounds even Soveraign Princes may be allowed to make so much as Defensive Wars as I said but now since they may pretend that themselves are wronged and invaded or at least are like to be so when no such thing was really done or intended and so by their mis-judgment or false pretences many millions of Lives may be lost What then must no Princes ever make War at all till all the World be satisfied of the Justice of their Quarrel If so I doubt the last War of King Charles the Second made against the Dutch and this late War the King of France has now made upon the Empire should never have been by your Principles so much as begun much less carried on with so great an Effusion of Blood and the Destruction of so many Cities and Towns and whether this as well as Tyranny at home is not more often put in practice by Princes than any Resistance this Nation or all the Subjects of the World have made against such Tyranny and Arbitrary Power I leave it to your self or any indifferent Person to judge M. I doubt not but I may very well join issue with you upon this point for I think that upon those very conditions and grounds you have now laid down the Clergymen Lords Gentlemen and Commons of this Kingdom who have either come over with the Prince of Orange or have taken up Arms in defence of his Late Declaration cannot justifie themselves by any of the Instances you have given for joyning themselves with him in Arms for tho' I grant His Majesty by hearkning too much to Popish Counselâ may have done many things which in strictness of Law cannot be justified yet since they do not strike at that which you call the fundamental constitution of the Government and has been also done without any force on the People of this Nation but hath been either transacted by Judgment of Law or the colour of it at least viz. by the opinion of all or the Major part of Judges all the Parties above mention'd ought according to your own Principles to have waited for the meeting of the next Parliament to whose determination they ought by the Law of the Land to have referred all such grievances and violations of Laws which they had to complain of and if then the King had refused to have remedied them they might have had some colour I do not say right for taking up Arms and doing what they have done whereas I cannot see how you can even upon your Principles defend the late risers from wilful Rebellion against the King And for proof of this I need go no farther than the Prince of Oranges Late Declaration which being drawn by the best advice of the Male-contents then in Holland would not fall to mention all the violations of Law which they thought his Majesties Government had been guilty of ever since his coming to the Crown and therefore not to insist upon the want of right which I conceive the Prince had to concern himself with the affairs of another Kingdom which he had no right to I shall however mention every Article in which his Highness conceives the Religion Laws and civil Liberties of this Nation to be endangered In the first
and Lord Lieutenants and if they had refused to answer positively to those questions proposed to them I know no other penalty they had been liable to more than being put out of Commission which sure is no punishment but rather an ease and tho' I do not defend those evil Ministers that put the King upon this Method of distrusting and disobliging his best Protestant Subjects I mean those of the Church of England by putting them out and putting in either Papists or Fanaticks in their steads yet all that own themselves of that Communion ought to have been of more loyal Principles than to have taken up Arms as some of them have done upon pretence of standing by the Prince of Oranges Declaration against these abuses F. I see though you cannot directly justifie the examining of the Lords Lieutenants and Deputy Lieutenants and Justices of the Peace about taking away the Penal Laws and Test and turning those out of Commission that refus'd yet you strive to mitigate it as far as you can by making it part of the Kings Prerogative to put in and out what Judges Justices and other Officers he pleases well granting this to be so yet sure you cannot deny but that the clositing of Judges and all other Officers you have now mention'd and putting those out of Commission that refus'd to comply with the Kings Will and that for no other reason was sure a strange abuse of that Prerogative and the excuse you make that the persons examin'd had a liberty to refuse whether they would give any positive answer or not is yet more trivial since it is very well known that as well those who gave doubtful answers or refused to make any answer at all were as much turned out as they who positively denied to comply with the Kings demands so that no answer was looked upon as satisfactory but such as seemed to give up all freedom of Elections and Votes in Parliament none being to be chosen by the Kings directions but such as would engage before hand to repeal the Test and Penal Laws and I think you will not deny but that the King by thus examining all these Magistrates and Officers you now mention and by turning those out that refused to comply did all he could to hinder the free Election of Members to serve in Parliament and the freedom of giving their Votes when they came thither and the King might as well another time have declar'd that he would have no Members chosen but such as would agree to take away the Statute de Tallagio non concidendo or any branch of Magna Chartâ which he should think fit to have repeal'd and as this strikes at the very fundamental constitution of the Government viz the free Election of Parliament men so it was inserted among the Articles against Richard the II. that he had caus'd the Sheriffs to return whom he pleas'd for Knights of Shires as I have already shewed you But what say you to the Kings late calling in almost all the Charters of Cities Towns and Corporations in England and putting in Popish or Fanatick Officers and Magistrates into the rooms of those that were turn'd out only to influence Elections and to procure what persons he desired to be return'd for Parliament men is not this a grand breach of the fundamental constitution of the Kingdom thus to take away the legal Rights and Priviledges of these Corporations for no other cause than to procure the King such Parliament men as he had a mind to M. I beg your pardon I forgot to mention this sooner and though I will not take upon me absolutely to defend the Legality of it much less the design for which it was done since I grant that it was in order to destroy or at least to humble the Church of England yet since iâ was done by colour of Law and Judgment of the Court of Kings Bench and no more than what has been formerly done in the Reign of King Charles I cannot see how the Noblemen and Gentlemen lately in Arms could defend their rising upon that ground unless they would also at the same time justifie the lawfulness of the Plot and Rebellion intended in the same Reign and in which so many of the Whig Nobility and Gentry were deeply engaged F. To answer what you have said in vindication of this great violation of one of the fundamental Rights and Liberties of the Kingdom I must in the first place tell you that as I shall not now examine into the matter of Law whether a Corporation can forfeit it's Charter for misdemeanours or not much less shall I concern my self whether it were done by or without colour of Law or the Judgment of the Court of Kings Bench since it is notoriously known that none of the Judges were permitted to sit there nor any new ones put in but such as would blindly agree to all the Court would have done and therefore I value nor any thing they did nor think it one âot the more legal for their Judgments nor is it any excuse that the same thing was done in King Charles Reign and therefore might as well be done now without any rising against it for though I must tell you I look upon the taking away of the Charters from the City of London and the other Cities and Corporations of the Kingdom one of the most arbitrary and illegal acts of that Kings Reign yet there were several reasons which made it unlawful for the Nation to rise then yet it might not be so now as in the first place because most of those Charters were either willingly surrender'd by the members of those Corporations or else were declared forfeited by due trial and Judgment of Law whereas it was much otherwise in this Kings Time when notwithstanding that all the Cities and Towns Corporate in England had but a few years before taken out new Charters to their great trouble and expence they were now summon'd anew to surrender these again for no other reason but because it was the Kings pleasure it should be so for who can imagine that all the Corporations of England could have forfeited their Charters in so short a time as three or four years and they were plainly told that the King must and would have them and that it was to no purpose to stand out and therefore it was no wonder if all the Cities and Corporations of England were forced to submit patiently to this violation since they found by experience the Judges were ready to give Judgment against them right or wrong And besides this I have already laid it down as a Maxime that no resistance whatever is to be made till matters become desperate and all other means are become absolutely ineffectual which I think they were not as long as King Charles lived who besides the inconstancy of his humour which seldome persisted long either in well or evil doing especially if the ill consequences of it were well laid
to hinder Free Elections and due returns of Parliament Men by making either Popish or Fanatical Sheriffs and putting Mayors and other Officers of the like Principles into most of the Cities and Corporate Towns in England nor can I tell but that force would also have been used if they found they could not have compassed their designs without it in those places where Souldiers were Quarter'd since I am credibly inform'd that at the late intended Elections of Burgesses for Northampton and Brackly the Officers and Souldiers Quarter'd at those places declar'd that none of the Towns-men should be admitted to give Voices at the Election unless they would promise to Vote for those that the Court would set up and the like instances I beleive I might give you of other places had I time to enquire into it and as for the house of Peers pray consider how many of the Bishops and temporal Lords the King might have gain'd either by threats or fair promises to the Kings party or at least prevail'd upon to stand Neuters and not to oppose his designs and if these had fail'd it had been but calling up some Popish or high Tory or Fanatick Gentlemen to the House of Lords and to have sate their as Barons Peers pro tempore till this Jobb was done and I doubt not but there would have been enough found out of each sort for that purpose and that I do not speak without Book I have had it from persons of very good Intelligence that such a design was lately on foot and the Court party thought they had very good Authority for it since Mr. Pryn and Sr. Will. Dâdgdale pretended to show us several examples of this Kind as low as the Reign of King Henry the 4th and a great part of the design of your Dr. Bs. late Books seem to have been only to prove that the King might not only have Summon'd to Parliament what of the Commmons he pleased but what Lords too and have omitted the rest as I have already shown you at our two last meetings and sure if the King had such a prerogative two or three hundred years ago these Gentlemen would not have deny'd his Present Majesty the like Power Since they have in all their Writings and addresses declar'd him as absolute as any of his Predecessours But to make an end as for what you say of the Kings Redressing the Grievances of the Nation before the Prince of Orange came it is very true he did by the advice of some of the Bishops endeavour to put things into the same state they were in at his first coming to the Crown but I very much mistrust the sincerity of his Majesties intentions since it is plain he never offer'd to do it till the Prince of Orange was âust upon coming and that his Declaration had been spread about the Kingdom and then he did it so unwillingly that when the news came of part of the Princes Fleets being Shipwrack'd and that his design was quite put off the Bishop of Winchester who was then but newly gone down to restore the President and Fellows of Magdalen Colledge was immediately call'd back under pretence of being present as the Examination of the Birth of the Prince of Wales and did not return again to finish that business till such time as fresh News came that the Prince was certainly come notwithstanding his late disaster And which is also more remarkable His Majesty in none of His Declarations ever disowned his Dispensing Power or so much as put out Father Peters from the Council or Disbanded one Popish Officer or Souldier out of his Army which is another great Argument of the Sincerity of his intentions So that I think this was sufficient to convince any reasonable Man that there was no other means left us but Resistance and that by Force and a hearty Joyning with the Prince of Orange at his Landing Since this resistance was not made either in Opposition to the King or the Laws but for defence of both against a Standing Army kept up contrary to Law and headed by Officers the greatest part of which by not taking the Sacrament and Test according to the Act made for that purpose had render'd themselves wholy uncapable of holding those Commissions and consequently whilst in Arms were to be look'd upon as common Enemies to the Nation But as for his Majesties Gracious and mercifull disposition as I shall not make it my business personally to Reflect upon him so I must needs tell you the Execution of Mr. Cornish Mrs. Lisle Mrs. Gaunt for Treasons falsly alledg'd or else for such as Women could scarce be capable of knowing to be so were no great Evidences of such highly Merciful Inclinations M. I confess you have taken a great deal of pains not only to set forth the Late Miscarriages of the Government but also to prove that the Army which the King raised upon the Duke of Monmouth's Rebellion and which he hath since kept up to prevent either fresh Rebellions at home or Invasions from abroad has been meerly maintain'd to support all these Late breaches upon our Laws and Civil Liberties which you say were made upon them now this is very uncharitably done for as His Majesty was Forc'd to raise that Army at first because the Late Rebellion in the West was too powerfull to be quell'd by the ordinary Train'd Bands of the Kingdom whom he had too much reason to suspect by the running over of several of them to the Rebels not to be so Loyal as they ought to have been and if His Majesty had not had a small body of an Army on Foot the last Summer before the Prince of Orange came over he must upon his Landing have Yielded to his terms had they been never so unreasonable and though I will not defend the Listing of Popish or Irish Souldiers or the Granting Commissions to Popish Commanders yet it is very hard to prove this to be a making War upon the Nation unless you can suppose there may be War made without Fighting and as for those Violations of the Laws which you suppose were made only upon the presumption of this standing Army this is likewise very hard to affirm since how can you tell that the Judges and Ministers would not have given the same Opinions and advices concerning the Dispensing Power Chimney Money the Ecclesiastical Commission had there been no Army at all rais'd since they might for ought I know have presum'd that the People of this Nation had been sufficiently convinc'd of the truth of the Doctrines of Passive Obedience and Non-resistance as not to have needed a Standing Army to back what he had already done tho' contrary to Law but as for the latter part of your Dicourses say the People ought to have waited till the King had call'd a Parliament and then if they had betray'd their trust and given up our Religion and Liberties as you suppose they would have done it had been
But it is very strange to me that none of them deposed any thing concerning their seeing any Milk come from Her Majesties Breasts after she was Delivered And perhaps there was good reason for it for I have had it from good hands that she had none afterwards whatever she had before the reason of which deserves to be enquired into since it is very rare But as for the Mid-Wife her deposition is equivocal That she took a Child from the Body of the Queen She is also a Papist and consequently a suspected witness in this cause Whereas all this might have been prevented had the Queen were she really with Child been perswaded to be Delivered not within the Bed but upon a Pallate where all the persons whose business and concern it was to be present might have seen the Child actually born nor needed there to have any men been by though I have heard that the late Queen of France was Delivered of the present King the Dake of Orleans not being only present in the Room but an Eye-witness of the Birth And so sure if somewhat of this nature had been done it might have saved a great deal of dispute and bloodshed which has already or may hereafter happen about it And therefore I do not at all wonder that the Prince of Orange should not take this partial Evidence that has been given for sufficient satisfaction so that whether this Birth of the Queens was real or not I shall not now farther dispute It is sufficient that if His Highness and His Princess had just and reasonable suspitions of an Imposture whilst they remain under them they had also a just cause of procuring a Free Parliament to examine this great affair and also to obtain it by force since it was to be got no other way M. I need not further dispute this business of the Prince of Wales with you since I durst appeal to your own Conscience whether you are not satisfied notwithstanding these supposed indiscretions in the management of the Queens Delivery that he is really Son to the Queen and I think it would puzzle you or I to prove the Legitimacy of our own Children by better evidence than this has been and I think all those of your party may very well despair of producing any thing against it since the Prince of Orange himself has thought it best to let it alone as knowing very well there was nothing material could be brought in evidence against him But I shall defer speaking further to this Head till I come to consider of the Conventions setling the Crown upon the Prince and Princess of Orange But before I come to this I have many things further to observe upon the Princes harsh and unjust proceedings with his Majesty and refusing all terms of Accommodation with him upon his last return to London In the first place therefore I must appeal to your self whether It were done like a Nephew and a Son-in-Law after the King was voluntarily returned to White Hall at the perswasion of those Lords who went down to attend him at Feversham when he had had scarce time to rest him after his journey and the many hardships he had indured since his being seized in that Port and when he had but newly sent my Lord Feversham with a kind Message and Complement to the Prince inviting him to St. Iames's together with some overtures of Reconciliation as I am informed the Prince should make no better a return to all this kindness than to clap up the Messenger contrary to the Law of Nations as his Majesty observes in his Late Paper I now mentioned And should without any notice given to the King of it order his men to march and displacing his Majesties Guards to seize upon all the Posts about White-Hall whereby his Majesties Person became wholly in his Power And not content with this he likewise dispatcht three Lords whose names I need not mention to carry the King a very Rude and Undutiful Message desiring him no less than to depart the next Morning from his Pallace to a private House in the Countrey altogether unfit for the reception of his Majesty and those Guards and attendance that were necessary for his security Nor would these Lords stay till the Morning but disturbing his rest delivered their Message at Twelve a Clock at Night nor did they give him any longer time than till the next Morning to prepare himself to be gone and then the King was carried away to Rochester under the conduct not of his own but of the Princes Dutch Guards in whose custody his Majesty continued for those few days he thought fit to stay there till his departure from thence in order to his passage into France by which means the Prince hath render'd the breach irreconcileable between his Majesty and himself for whereas if he had come to St. Iames's in pursuance of the Kings Invitation and had renewed the Treaty which was unhappily broke off by the Kings first going away there might have been in great probability a happy and lasting reconciliation made between them upon such terms as might have been a sufficient security for the Church of England as also for the Rights and Liberties of the Subject which you so earnestly contend for whereas by the Conventions declaring the Throne vacant and placing the Prince and Princess of Orange therein they have entail'd a lasting War not only upon us but our Posterity as long as his Majesty lives and the Prince of Wales and his Issue if he live to have any are in Being F. I confess you have made a very Tragical relation of this affair and any one that did not understand the grounds of it would believe that King Iames being quietly setled in his Throne and the Prince of Orange refusing all terms of reconciliation had seiz'd upon his Pallace and carried him away Captive into a Prison whereas indeed there was nothing transacted in all this affair which may not be justified by the strictest Rules of Honour and the Law of Nations for the doing of which it is necessary to look back and consider the state of affairs immediately after the Kings leaving Salisbury and coming to White-hall where one of the first things he did after he was arrived was to issue out a Proclamation for the calling a new Parliament which was so received with great satisfaction by the whole Nation and immediately upon this the King sent the Lords Hallifax Nottingham and Godolphin to treat with his Highness upon those Proposals of Peace which he then sent by them and to which the Prince return'd his answer the heads of which are very reasonable without demanding any other security for himself and his Army than the putting of the Tower and Forts about London into the Custody of that City now pray observe the issue of all those fair hopes before ever the terms propos'd by the Prince could be brought to Town the King following the ill advice of the
commanding a Centry to be drawn off from his usual Post he could never have gone away without being discovered and if he would have gone away at Noon Day I know not who unless the Rabble would have hinder'd him so that I think it is evident that this was the civilest and mildest usage that a vanquisht Prince could expect from him that had so much the better of him and in whose power he now was and I doubt more than the King would have allowed the Prince had it been his Fortune to have got him as much in his power nay the King was so far from being confin'd that it is plain he had the liberty given him to go whither he pleased nor were these Guards plac'd so much about him for his confinement as to secure him from the insults of the Rabble who otherwise there as well as they did at Feversham might have expressed too violent a resentment against his Person M. I cannot deny but you have given a very-fair and as far as I know a true account of this transaction and have told me some things which I never heard before but however I cannot depart from my first opinion that it was neither honestly nor wisely done of those who took upon them to advise the Prince to push things to extremities in this conjuncture and therefore I impute it chiefly to those English who supposing they had by taking Arms and joyning themselves to the Princes party provoked the King beyond all possibility of Pardon were resolved to do their utmost to put it out of the Kings Power ever to call him to an account for it and tho' perhaps his first sending away the Queen and Prince and then going away himself in the middle of a Treaty with the Prince and thereby leaving his Affairs in such confusion may seem to deserve blame yet certainly his Majesty is to be excused in a great measure for what he then did for as he tells the Earl of Feversham in his Letter to him to Disband the Army That things being come to that extremity that he was forced to send away the Queen and the Prince his Son that they might not fall into the Enemies hands and was also constrained to do the same thing himself and follow them since the Troops of his Army were not to be relyed on that it was not adviseable for him to Fight the Prince of Orange in the Head of them for it was but reasonable that Princes as well as other men should provide for their own security as well as they can But yet I can never believe that his Majesty's first going away was any Abdication of the Government much less a forfeiture of his Crown or Royal Dignity any more than the second for in the first place it could be no forfeiture according to your own Principles because he had already Dissolved the Ecclesiastical Court and restor'd the Cities and Corporations to their former Charters and Freedom in Elections of Parliament-Men and putting again in Commission all Lords Lieutenants and Justices of the Peace who had been before turned out and if he could not give an intire redress to all our grievances by a free Parliament it was only because he durst not stay to hold it since he thought he could have no security for his Person the whole Nation being in a manner poisoned and prepossessed against him by those malicious Artifices of a French League and a suppositious Prince and that his Majesty had so many unfortunate disappointments and so surprizing and unparallell'd accidents part of his Army deserting him and the rest too apparently unserviceable when there were such terrible disorders in the Kingdom and all places were either flaming or about to take fire So likewise could it not be properly any wilful desertion or Abdication of the Government since he was forced to quit it like the master of a Ship who when the Vessel is like to sink is forced to leave her and escape in a Cock-boat and that his Majesty did not act thus without an intention to return and again to vindicate his right when opportunity served appears likewise in that passage in the above mentioned Letter wherein he desires both the Officers and Souldiers of his Army then to be disbanded To continue their Fidelity to him and to keep themselves from Associations and such pernicious things from whence it plainly appears he went not away without a prospect of returning to his Throne when Time should serve and if he left no orders at all for the Government of the Kingdom in his absence nor named any Commissioners or Lieutenants to represent him it was because he thought it to no purpose since besides that he could find no body who durst undertake so difficult an employment so they that had taken it would have found no body who would obey them the generality of the People and also of the Kings Army being more inclinable to the Prince of Orange than to himself Yet however you see upon his return to Town the King was so well persuaded of the Prince of Oranges kind intentions towards himself and the Nation that I verily believe that his Majesty would have yielded to any thing that could in reason have been desired of him and upon this ground I suppose he writ so kindly to the Prince and invited him to come to St. Iames's with what Troops he should think fit for his security therefore I must needs tell you again I think it was a great oversight of the Prince of Orange thus to let slip this opportunity by refusing all terms of accommodation with the King his Father and by clapping up my Lord Feversham then seizing the Kings Person and sending him out of Town to let all the World see he was resolved to treat no more with him and this being the true state of the case it is not your saying that he had forfeited his Crown by going away and consulting his own safety that will convince any unprejudiced man for as to your notion of a forfeiture that they were not then entred into the Thoughts of the Peers and others of the Privy Council appears by the Order they made for sending the Lords Feversham Alesbury âarmouth and Middleton most humbly to intreat the King to return to White-hall so that he was received very joyfully and with great Acclamations of the Common People as he passed through the City and when he came to White-hall he called a Council where he made an Order to stop the demolishing and plundering of Houses by the Rabble so that he was not only receiv'd but also acted as a King after his return to Town This being the true state of the case I shall not dispute the point whether his Majesty and the Prince were in a state of War or Peace after his return to Town or what the Prince might have done as an Enemy and a stranger to the Kings Person but what might be expected from him as
still here for the King did not leave Rochester until the 23d in the morning so it is plain it was not their design to own or take notice of him any more as King and that which makes it more remarkable is that several of the Bishops viz. the Arch-Bishop of York together with the Bishop of St. Asaph and others joyned with the rest of the Peers in these Addresses which was a plain sign they all looked upon the Kings Power to be now at an end But as for the Acclamations of the people or any great joy the City expressed upon the Kings return to Town I doubt you have had a false account of that matter for I cannot hear that any of the Citizens went out to meet him or set any Lights in their Windows though he came into London after it was dark or that any of the better sort bid him God Speed I grant indeed there was a great many of what you call the Mob but more Boys than Men who followed his Coach making Huzza's whilst the rest of the people silently looked on M. I cannot deny but you may have given a true account of these matters since you may have observ'd them better than I yet as you your self have Related them sure the King had sufficient cause to Consult his own Safety and make his escape as soon as he could for what could he expect when once the Prince had secured his Person under a Guard and had refused to Treat with him as King and that also the Peers and divers of the Bishops had made an Association to stand by the Prince of Orange and had made a fresh Address to him without taking the least notice of him as if there had been no such thing as a King in being I say what could his Majesty now expect but either a more close Confinement or else being taken off privately by poyson or some other ways since he could not be forgetful of the King his Fathers saying that there is no great distance between the Prisons and the Graves of Princes or admit he had lived till this Convention Saâe what could he have expected more than the retaining the bare Title of King whilst the Prince of Orange or some others appointed by Him had wholly managed the Government at their pleasure or else they might according to your Doctrine have either declared the Crown forfeited or else that he had Abdicated it by his going away or who can tell but they might have again renewed the Villany of 48. and have made him undergone the same Fate with his Father F. I grant you have urged the utmost that can be to justifie the Kings second Departure and as I would not deny but that he was the best Judge of his own Danger so were the Prince Peers and Common together with the City the best and only Judges we could then have of the true means of our settlement and safety since after so many breaches that the King had made upon his first Declaration and Coronation Oath as also his going from his late Promise of calling a Free Parliament I cannot see what farther security he could have given us that he would not repeat the same things over again or admit the Prince had suffered him to continue at White-hall and to call a third Parliament what assurance could he have given that in the end of another forty days we should not have the same trick play'd us and then in March or April have been left in the same state of Confusion we were in in December to the certain ruine of these three Kingdoms and Holland into the bargain And then by that time the French King might have got ready an Army and a Fleet and under a pretence of redeeming his Majesty from the constraint he lay under and of restoring him to the free exercise of his Regal Power have Invaded this Kingdom and I suppose you cannot deny but the King would then have sound Papists and High Tories enough to have joined with him in this pious design for certainly the scruples of the high Church-men would have been the same they are now the obligations of the Oath of Allegiance the same and the supposed Sin of deposing a Lawful K. the same though he had utterly refused to give the Prince and Nation any satisfaction so that then if we had been forced to take Arms and to declare he had forfeited his Right to the Crown all these things would have given as great or rather greater scandal than for the Nation to take him at his first offer and since he had thus rashly deserted the Throne by a needless departure to resolve he should Ascend it no more But suppose what might also as well have happened that the Prince and his Party had been killed or expelled the Kingdom by the King do you think he would have granted us then what he would not grant us now Would he not think you have disbanded his Protestant Army and have kept only Irish Scotch and French Forces in pay and have every day encreased them What respect can we hope he would ever after this have shewn to our Laws Religion or Liberties when he had now no longer any thing to fear The memory of what happened after the Duke of Monmouth's defeat though effected only by those of the Church of England will certainly never be forgotten by others whatever you Bigots of Loyalty may pretend or say So that for my part I stand amazed to see you and so many others scruple the submitting to the present King for if ever man had a just cause of War he had and that creates a right to the thing gained by it the King by withdrawing and disbanding his Army yielded him the Throne and is he had without any more Ceremony ascended it he had done no more than several Princes formerly have done on the like occasions for the Prince was no longer then bound to consider him as one that was but as one that had been King of England yet in that capacity he treated him with great respect and civility how much soever the King complained of it who did not enough consider what he had done to draw upon himself that usage but as for your insinuation that if he had stayed he might have run the same fate with his Father I think it is fuller of Passion than Truth for besides that the Lords and Commons would never had the Impudence to have committed such a Villany and the Prince himself as a Nephew and a Son-in-Law would never have suffered it M. Well God only knows the event of things and we ought to judge charitably and still to hope that if the King might have been restored upon terms that he would have been the better for his Affliction and have amended all those errours he committed since he had seen that neither the Nation nor yet his Neighbours the Dutch would permit him to make himself an Absolute
an Act of Parliament which is made indefinitely without fixing it to any time or person the words in the Act are the King for the time being which must certainly extend to any other King as well as Henry the VIIth for I suppose that an Act of Parliament and a Deed agreed in this that an unnecessary Clause can by no means render the whole void But as for what you say in relation to this Acts being a security for the Title of the Queen and her Children whom you suppose to be the right Heirs of the Crown this rather serves to strengthen the Act than otherwise for if this King had a good Title in her right then it may be also very well suppos'd that she gave her assent to this Act in the person of her Husband and that not for the benefit but to the prejudice of her own Issue since if after her death which happen'd some years before his her Son Henry Prince of Wales had set up his present Title to the Crown in the right of his Mother and so would have dethron'd his Father as an Usurper I suppose no reasonable Man will deny but that this Act would have indemnified all those who had taken up Arms in defence of King Henry the VIIth against his Son though in your sence King de jure and if it would justifie the Subjects then I cannot see why it may not do the same thing now in their swearing Allegiance nay fighting for the King in possession against him whom we will for the present suppose to be King de jure M. Well however I think I can prove that this Act was no more than temporary from the judgement of the Judges in the Case of Iohn Duke of Northumberland who when he was Tryed for Treason for leading an Army against Queen Mary to settle the Lady Iane Gray in the Throne desired to be informed by the Judges whether a man acting by the Authority of the Great Seal and the Order of the Privy Council or Princes Council as Stow and Heylin word it could become thereby guilty of Treason to which all the Judges answer'd that the Great Seal of one that was not lawful Queen could give no Authority or Indemnity to those that acted by such a Warrant upon which the Duke submitted though without question he did not want Lawyers to inforce his Plea with this Statute likewise if his cause would have born it from whence I infer against Sir Edward Coke that Treason lies against a King de jure tho' out of possession for it 's plain by all our Historians that Queen Mary was so far from being possessed of the Crown when the Duke of Northumberland acted against her that the Lady Iane was not only Proclaimed Queen in London and most of all the Cities and Great Towns in England but the Tower of London with all the Forts and Naval Forces were under her Command and she had also Allegiance sworn to her by the Privy-Council and by the Lord Mayor and Aldermen and she had also the Seals in her power by which all Patents and Commissions were granted and issued in her Name and if all this be not sufficient to constitute her Queen de facto according to this Statute of Henry the VIIth I know not what was F. Yet I can tell you what was yet wanting which because she had not she was certainly neither Queen de jure nor de facto and that was a solemn Coronation and Recognition of her Right by Parliament which legal investiture since she never had she was not the Queen for the time being and consequently not intended within this Statute of the 11th of Henry the VIIth for though it is true she was appointed Successour of the Crown-by the Letters Patents of King Edward the VIth yet since she could not claim by right of blood there being so many before her all the Kingdom looked upon it as an Usurpation and an artifice of the Duke of Northumberland whose Son she had Married to get the Government of the Kingdom into his sole power so that it was no wonder if the greater part of the People were so averse to her Title and that those of the Nobility who took her part so quickly revolted from her when once the fear they were in of the Duke of Northumberland's power was removed for had this Bequest of the Crown to the Lady Iane held good this Kingdom instead of being Hereditary would have become wholly Testamentary and disposable by the last Will or Letters Patents of the King or Queen for the time being without the consent of the Great Council of the Nation which is contrary not only to the then receiv'd Laws of Succession but also to the antient constitution of the Kingdom as well before as after the Conquest But notwithstanding all this I doubt not but that if the Lady Iane had so far prevail'd against Queen Mary as to have been able to call a Parliament and to have had her Title own'd and recogniz'd therein as it was in the Case of Richard the Third and Henry the Seventh but that she would have been true and lawful Queen according to the intent of the Statute we are now discoursing of and then the Duke of Northumberland must likewise if he had fair play have been indemnified for taking up Arms in her defence against Queen Mary since Queen Iane would have been then within the letter of this Statute as much as King Henry the Seventh himself M. You must pardon me if I cannot be of your opinion in this matter since if the bare Coronation and recognition by Parliament could confer a legal right to the Crown upon one who had no hereditary right to it before the consequence of it would be that the Crown would be so far from being Elective as you suppose it to have antiently been that it would be in the power of every bold Usurper or Rebell who had but the confidence to call himself King to gain a legal Title to be so according to your Principles and then if Oliver Cromwell could have found a Party strong enough in the Army to have declar'd him King and had call'd a Parliament in his own name who had recogniz'd him for their Lawful Sovereign he would then have had as much right to our Allegiance as King Charles the IId which certainly was not only contrary to the settlement of the Crown upon Henry the VIIth and the Heirs of his body but also to that solemn recognition of King Iames the Firsts Title as lineally descended as right Heir to the said King Henry which I insisted on at our last Meeting And therefore if you will have my sence of this Act it is either expir'd for the reasons I have already given or else was void ab initio since it is not only contrary to the setled course of Succession of the Crown according to the Laws of lineal descent for divers hundred years last past but
a generous Prince a Nephew and a Son-in-law and one who was bound in Conscience and Honour to consult the lasting Peace and Happiness of the Nation more than his own private interest or the ambition of wearing a Crown F. You have made the utmost defence that I suppose can be brought for the King 's first going away yet if it be better consider'd I doubt it will not serve the turn I see you are forc'd to lay the whole fault of the Kings departure in the midst of the Treaty with the Prince and his refusing to call a Parliament according to his own Promise and Proclamation upon his want of security for himself the Queen and Prince if he had stay'd by reason of the want of fidelity in his Army the general prejudice of the Nation against him and the great firmness and resolution there was in the Princes Army to adhere to him Now I shall shew you that every one of these were but pretences and that the real cause of his departure was because he fear'd to leave the inquiry into the Birth of the Prince of Wales and the free examination and redress of our grievances and those violations he had committed upon the fundamental constitution of the Government to the impartial judgment of a free Parliament For in the first place as to want of fidelity in his Army that can be no just excuse for his deserting and disbanding them as he did without any pay since he himself in his said Letter to the Earl of Feversham expresly owns that there were a great many brave men both Officers and Souldiers among them and therefore if he was satisfied of this he ought to have first sent for all his Officers both Collonels and Captains and have examin'd them how far they would stand by him in the Defence of his Person and Cause against the Prince of Orange and he might have also order'd those Officers to have examin'd every Regiment Troop and Company in his whole Army how far they would engage in his defence and if he had proceeded thus at Salisbury before he fled away in that confusion to London I have been credibly inform'd by divers Officers of that Army that the King might have found above Twenty Thousand men that would have stood by him to the last man in his Quarrel against the Prince and therefore I impute his going away as he did from Salisbury to some strange pannick fear that God had cast upon him and all the Popish Faction about him since he has been known not to want sufficient courage upon other occasions but though he had omitted it there yet he certainly ought to have tryed this last experiment after he came to London rather than have quitted the Kingdom so dishonourably as he then did and thereby giving the P. of Orange's Friends an opportunity of seizing or getting delivered into their power all the Garisons and strong places in England besides Portsmouth in those three or four days time that he was not heard of besides great part of the Army that was not disbanded had in that time gone in to the Prince in hopes of their pay and future preferment now that the King might with safety have resided with his Army somewhere about London he himself grants in his Proposals to the Prince to this effect That in the mean time till all matters were adjusted concerning the freedom of Elections and a security of their sitting the respective Armies may be retained within such Limits and at such distance from London as may prevent all apprehensions that the Parliament may be in any kind disturbed which Proposals being made not long after the Kings arrival at London we may reasonably suppose that he was then well enough satisfied with the fidelity of the greatest part at least of his own Army to him and if he were not he might have been better satisfied if he pleased but as for the next difficulty the Nations being poisoned and prepossessed against him admit it were so as long as he had a sufficient Army about him as I suppose he might have had he need not have feared any thing the People could do but indeed this was a needless fear for before the Parliament could sit it was not the Peoples Interest to hinder it or to fall upon the King or his Army when matters were in a fair way of accommodation so after the Parliament sate there would have been less cause of fear since the reverence of that Court would have kept them in awe but as to the firmness and resolution of the Princes Army the fear of that was also as needless as long as the Kings Army continued as firm to him and if the Princes Army had been the first Agressors I doubt not but the People would have taken part with the King against them but after all it was certainly and you must grant it so much more safe and honourable for the King to have treated with the Prince and held a Parliament with an Army about him than to have yielded the same things as you suppose him willing to have done after his return to Town when his Army was disbanded and London had received the Prince and had joined with him and when almost all the strong places of England were in the Princes power so that upon the whole matter it evidently appears that the King chose to trust his own Person together with that of the Queen and Prince to a Foreign Monarch rather than he would relye upon the justice or fidelity of his own Nation You say in the next place that nothing the King has done in all these exorbitances he committed that can in any wise amount to a Forfeiture or Abdication of the Government not to the former because the King redress'd all our Grievances before he went away 't is true I grant he redressed some of them by putting divers things in the same State they were before yet for all this the greatest still remained unredressed viz. the Raising of Mony contrary to Law and the Dispensing Power both which as I have already shewed you at our last meeting he never Disclaimed neither took any sufficient course by Calling a Parliament to prevent its being exercised for the future besides his going away without giving the Prince and Nation any further Satisfaction about the Birth of the Prince of Wales all which not being done I must still affirm that this wrought a forfeiture of the Crown or an Abdication of it at least by his refusal to Hold and Govern it according to the Fundamental Laws thereof for he that destroys the Law or Conditions by which he holds an Estate does Tacitly Renounce his Title to it As I shewed you in the Case of Tenant for Life altering in Fee So that this being considered as also that the City of London and the whole Nation had Surrendred themselves to the Prince of Orange and that even the Arch-Bishops of Canterbury and York
together with the Bishops of Winchester and Ely with divers other Earls Bishops and Lords then in Town had sent an Address to the Prince immediately upon the Kings departure and sent three Lords and one Bishop with it desiring his Highness to come speedily to London and to take the Government upon him and having before declar'd that they would with their utmost endeavours Assist his Highness for the obtaining of a Free Parliament so that the Prince had no reason upon the Kings return to Surrender that Power which the Nation as far as it was able to do without a Parliament had put into his Hands and that to a King whom he had very little reason to believe would use it any better than he had done before But I see you wilfully decline entring into the Merits of the Cause and arguing the main point in the Controversy viz. whether the King was in a State of War or Peace with the Prince upon his return for if he were still in a State of War the Prince might certainly very well justifie his clapping up the Earl of Feversham his Late Majesties General for offering to come within the Limits of the Princes Quarters without his leave especially since he was still answerable for doing his endeavour to Disband an Army a great part of which consisted of Papists and Forreigners with their Arms in their hands whereby they might have robb'd and spoyl'd the Countries or at least have kept those Arms to renew the War again with the first Opportunity so that certainly it could not be so slight a thing as a bare Invitation to St. Iames's whither the Prince could have gone without his leave being now Master of the City which could so far efâace all the Princes just Resentments and make him so far confide in the Kings Word as to come to London whilst he remained there with his Guards and all those Papists and Tories in and about London ready to take his part and Rallie again into a new Army upon the first Signal But as for any Proposals of Peace or Accommodation which you say the Lord Feversham brought with him I neither know nor have heard of any such thing 't is true the King says in the said Paper he left behind him that he had writ to the Prince of Orange by the Lord Feversham and also mentions some Instructions he had given him but what they were he does not tell us but sure they were not Propositions of Peace since it is to be supposed that the King would not have sent any thing of that Consequence without first acquainting the Privy Council with it before it was sent But since we hear of nothing concerning them we may very well suppose there was no such thing or if there were his Highness was the fittest judge whether they were reasonable or not and if the King had any desire to propose any Just or Reasonable Terms whereupon he might have hoped to have been restored again to his Royal Dignity he had a very âair Opportunity for it when a great Council of the Nobility were met at St. Iames's in Order to Sign an Association to stand by the Prince in the Calling of a Free Parliament for the King might then if he had pleased have made his Proposals by such of the Lords and Bishops as he could most confide in and have Conjured all the Peers there Assembled to have interceeded with the Prince of Orange to renew their Treaty with the King which had been before unhappily broken off and then if either the Peers had refused to do this or the Prince had refused to hear them the King might then I grant have had sufficient reason to declare to all the World that he was not fairly dealt with but for him again to go away only upon pretence that his Person was under restraint when really it was not plainly shew'd that he had no real design of making an amicable end of those differences or really desir'd to be restored to his Throne by the general consent of the Nation but either hoped for it from those Civil Dissentions he expected we should fall into upon his departure or else to the Arms of France and this being the Case I think nothing is plainer than that the King both by his first and second departure hath obstinately refused all those means whereby the Nation might have been setled with a due consideration of his Person and Authority whilst he lived and of the Prince when his Legitimacy shall be sufficiently proved and made out before a Free Parliament So that since I have already proved that the King had before the Princes Arrival committed so many Violations upon the whole Constitution of the Government and that these Violations if wilfully and obstinately persisted in do at last produce an absolute loss and forfeiture of the Crown it self I think the late King has done all that could be required to make it so But I have forgot to answer one Objection you made viz. that the Peers and Bishops when they invited the King to return to White-Hall had no Notion of this forfeiture nor the people of London who you say received him with great Joy and Acclamations and that therefore it is wholly a new invention To this I Answer that if the Lords you mention did send this message to the King it might be because they were surprised with his unexpected return and had not well considered all the Circumstances of the Case and thereby did more then they could well justifie having before declaed they would stand by his Highness in procuring a Free Parliament which must certainly be without the King since he was then gone away and they had also invited him to come to London as well as the City and how that could consist with their inviting the King thither without the Princes consent I do not well understand but it seems they quickly altered their Sentiments as appears by their presently after Subscribing a paper in the nature of an Association to stand by the Prince without taking any notice at all of the King and the very day of the Kings departure they met to consider upon the Princes Speech he had a day or two before made to them desiring them to advise on the best means how to pursue the ends of his Declaration in Calling a Free Parliament and within two days after they presented the Prince with their Advice to call a Convention on the 22th of Ianuary which was also the next day agreed to by one hundred and sixty Persons who had served as Knights Citizens and Burgesses in any of the last Parliaments in the time of King Charles the Second without taking any notice at all of the King for though it is true he was then gone away when the Commons and City two or three days after made their Addresses to the Prince Yet when the Peers met both the first and second time on the 21st and 22d of December he was