Regni totis reretroactis temporibus in the times of E. 1. and his Progenitours if so then in the time of King John Grandfather to E. 1. and so before H. 3. 1. THE Burgesses of St. Albans in their Petition to King E. 2. An o 8 o say that they sicut â—â—eteri Burgenses Regni ad Parliamentum Regis when it should happen to be summoned per duos Comburgenses suos venire debeant prout totis retroactis temporibus venire consueverunt tam tempore domini Ed. nuper regis Angliae patris regis as well in the time of E. 1. the Kings Father Progenitorum suorum as in the time of E. 2. semper ante instans Parliamentum and declared that the names of such Burgesses coming to Parliament were always inrolled in the Rolls of the Chancery notwithstanding all which the Sheriff of Hartford at the procuration and favour of the Abbot of St. Albans and his Council refused Burgenses praedictos praemunire seu nomina eorum retornare prout ad ipsum pertinuit c. and therefore they pray remedy Respons Scrutentur Rotuli c. de Cancellaria si temporibus Progenitorum Regis Burgenses praedicti solebant venire vel non tunc fiat eis super hoc justitia vocatis evocandis si necesse suerit I do not think there needs much enforcing this Record since the prescription of sending duos Comburgenses ad Parliamentum Regis sicut caeteri Burgenses Regni did is that they and their Predecessors were always accustomed to send two Burgesses to Parliament in all former Ages not only in the time of E. 1. but his Progenitors therefore in King Johns time his Grandfather at least and so before H. 3. And though the answer to the Petition which in that Age was given in Parliament per Concilium or all the Judges of England and others the Kings Learned Council say Scrutentur Rotuli si temporibus progenitorum Regis which may go to the whole Reign of King John as before Burgenses praedicti solebant venire vel non yet that grave and wise Council do not in the least scruple but clearly admit and confirm the general prescription that there were Boroughs that sent Burgesses to Parliament temporibus E. 1. Progenitorum suorum which goes higher than H. 3. his Father and it cannot in common reason be supposed much less believed that the Burgesses of S t Albans or the Lawyer or Pen-man of the Petition should dare to tell the King and Learned Council in the face of a Parliament a Novelty so great and ridiculous and that Recorded to Posterity by the Council that they and their Predecessors in the time of E. 1. and his Progenitors had sent two Burgesses to every Parliament when all the World then knew if the modern opinion be true that there was never any Election of any Burgesses to Parliament before the 49 H. 3. which was but 50. Years before 8 E. 2. and at the time of the Petition fresh in their own memories No surely the Burgesses of S t Albans did not ground their Petition of Right upon a general allegation or an affirmation in nubibus but the justice and certainty of their claim as they themselves very well knew so they prayed it might be examined and tried by uncontroulable Witnesses Records the Rolls of Chancery The Chancellor and the rest of the Council did no less know there were such Rolls and therefore order the search but if the Petition had been notoriously false and idle instead of recording it to future Ages they would with contempt and scorn have rejected it nor would the great Abbot of S t Albans his Council and the Sheriff of Hertford against whom the Petition was exhibited have been wanting in their own defence to have shewed and proved that this antient prescription was a meer Chimaera and fable no they all were well satisfied that the Borough had sent two Burgesses to every Parliament in the time of E. 1. and his Progenitors and therefore it was in vain to oppose or contradict their just and antient right according to their prescription all which appears clearly by this that both before the time of the Petition and ever since they have sent two Burgesses to every Parliament The SECOND ARGUMENT From Records An. 15 Johannis Regis wherein the Citizens and Burgesses not so numerous then as after and now together with the Earls Barons Magnates Angliae were to give Consilium Auxilium ad honorem Regis suum statum Regni who shortly after met at London Convocatum Parliamentum de toto Clero tota secta laicali and so within the express Prescription of the Borough of S. Albans I Am not ignorant that some have dated the origine of the Commons being a part of the Parliament from the Parliament of Runningmead 17 o Reg. Joh. It may therefore be worth our pains to observe this great Record following and to consider whether from thence may not be proved this Conclusion That 〈◊〉 great Cities and Boro 〈…〉 s of the â—ingdom not so 〈…〉 merous then as after and now in the 16 o of King John before the granting of his Magna Charta or 〈◊〉 confirming the antient Laws in his 17 th year at Runningmead did send their Proxies and Representatives to the Commune Concilium Regni or Parliament for it cannot be supposed in reason that every individual Citizen and Burgess could come no more than every Parson of a Parish to a Convocation or to a meeting of the whole Clergy of England The Record saith That the King being in partibus transmarinis writes Majori Baronibus London Majori probis hominibus Winton Northampt. Lincoln Ebor. Oxon. Glouc. Heref. Exon. Worcestr Cantebr Hunt Bristol Norwich And all the great Boroughs of the Demesnes of the King giving them account of his proceedings and successes in his War against the French and that the Pope had by his Letters released the Interdict under which the Kingdom then lay which the King had then sent to Peter Bishop of Winton Chief Justice of England and therefore desired that they would believe what the Bishop should speak to them that Consilium Auxilium vestrum ad honorem nostrum vestrum statum Regni nostri in melius communicandum efficaciter super hoc apponatis and that majori festinatione expediretur Teste apud Rupellam 6 o die Martii In the same manner he writ to William Earl Marshal and to all the Earls Barons Magnatibus Angliae c. Teste apud Rupellam 8 o die Martii In order therefore to our proof of a Parliament from these Records let us make two observations 1. Negative 2. Affirmative Though the Writ be general and mentions not any time or place for meeting or coming to Parliament or the great Council the King referring that I suppose to his Regent or Chief Justice here yet it cannot be
ire de rancour de male volente c. The King and Prince having undertaken the Crusado for the Holy Land quia tamen Praelatis Magnatibus Communitati Regni non videtur expediens neque tutum that they should be both out of the Kingdom istis temporibus it was agreed the Prince should go and a Subsidy was granted to the Prince by the Parliament If one should shew the Authors of the novel opinion only these Records and thereupon ask them who the Communitas mentioned in these Records after the words Praelati Barones Magnates were I doubt not but they would say Knights Citizens and Burgesses because they are after the pretended inception of 49 H. 3. but then I desire to know what authority they can shew why the Communitas in 29 32 37 48 H. 3. should not be a part of the Parliament as much as of 49 51 54. of that King since the words or phrases of both are alike in the Records For I do not think it a true way of reasoning That because the notion of 49 H. 3. is generally published by our now Historians and so believed Ergo it unquestionably was so and has always and in all ages been distinctly known and believed The SEVENTH ARGUMENT From the defect and loss of Parliament Rolls of H. 3. and E. 1. and from the universal silence of all Records and our antient Historians contemporary and succeeding 49 H. 3. till our days IT is true indeed for any thing yet appears the Parliament Rolls of H. 3. are all lost or destroyed though references are made to them by several Clause and Patent Rolls of H. 1. and H. 2. yet no direct Writ of Summons ad Parliamentum is extant of that time either of the Lords or Commons so M r Pryn till the Dorse of the Clause Roll 49 H. 3. in a Schedule affixed thereto where there are Writs for Electing and sending to a Parliament at London two Knights Citizens and Burgesses and Barons for the Cinque-Ports and likewise Summons to the great Lords But if that Roll of 49 H. 3. and Rot. Claus. 22 E. 1. had been destroyed as many others of that time were then had there been no footsteps or testimony left us on Record yet discovered of any formal Summons to Parliament of them or the Prelats and temporal great Lords till 23 E. 1. though several Parliaments were in the interim no less than twelve as the Printed Statute Books tell us And the Commons expresly said to be present at some and implyed in all if the Phrase of Commune Concilium Regni implies so much which 〈◊〉 think is unquestionable when compared with the Statute of Westm. 1. made 3 E. 1. which was not eleven years after 49 H. 3. wherein the constituent parts of the Commune Concilium Regni are enumerated and expressed the Statute being made Per l'assentements des Archievesques Evesques Abbes Priors Countes Barons tout le Comminalty de la terre illonques summones Now because from that one Record of 49 H. 3. being the only Roll as yet found out it should be wonderfully observed and from thence infallibly concluded and nicked and by an ominous and influential Asterism of Rebellion and Treason marked that the very first Writs whereby the great Lords are said to be also first Summoned to send two Knights Citizens and Burgesses for each County City and Borough 〈◊〉 Parliamentum in Octabis Sanâ—ti Hillarii were made in this very year at that very Crisis of time nay tested on such very days when the rebellious Barons after the Battel of Lewes had the King and Prince in their power and exercised Regal Authority in his name under good favour seems not at all satisfactory and convincing to me until they give more certain and greater testimonials and evidence and answer these few Records If the Epocha of the Knights Citizens and Burgesses or Commons as now called and distinguished from the great Lords being first admitted a part of the Parliament and Legislative Power had such a Creation and Origine it is more than a wonder though the Parliament Rolls be destroyed that the Lieger Books Charters or Historians of that time either National or Foreign of which there are not a few or our antient Lawyers Bracton Britton Fleta and Hengham had not amongst many Narratives of far less moment and weight given posterity a remark or some short hint or memorial of so suddain so great and so universal a change or Catastrophe of the whole constitution and ancient frame of the English Government as that must unquestionably be admitted to be or some subsequent Chronologer had not so much as dreamed of it till of late or that branch in the ancient Coronation Oath of our Kings demanded by the Archbishop had not been omitted or ne ver administred which runs thus Concedis justas leges consuetudines esse tenendas promittis per te esse protegendas ad honorem Dei corroborandas quas Vulgus elegerit secundum vires tuas Respondebit Rex Concedo promitto The word Elegerit being admitted to be of the praeterperfect tense it certainly shews that the peoples Election had been the foundation and ground of antient Laws and Customs and the term of justas leges seems to allow a liberty of debate reason and argument so much as might be of efficacy and force to demonstrate and convince that the Laws so required by the Commons of the King were just and reasonable the debate and consideration of which certainly was never nor ever could be intended to be done in the diffusive capacity of all the Commons of England separatim but in an intire or in an aggregat body that is in their Communia Concilia or Parliaments And with this agrees the Statute of Provisors An. 25 E. 3. which saith Whereupon the said Commons have prayed our Soveraign Lord the King that upon the mischiefs and damages which happen to his Realm he ought and is bound by his Oath with the accord of his people in his Parliament thereof to make remedy and law and removing the mischiefs and damage which thereof ensue And this they say sith the right of the Crown of England and the Law of the Realm was such Nor indeed can I apprehend any colourable pretence much less a probable reason that if the Barons had 49 H. 3. usurped the Soveraign power into their hands they should 1. So easily and speedily divide and share it with the Commons constitute a new Court of Parliament and make them essential and coordinate with themselves in the Legislative Power sure we know it is natural for all Courts ampliare non diminuere Jurisdictionem 2. That at that Parliament the numerous Barons as they stile them should but summon 23. of their own Order when the Archbishops Bishops Abbots Priors and Deans made 120 if we must be concluded by the Records If there were then
intended that Peter Bishop of Winchester being then Chief Justice of England should go from County to County City to City Borough to Borough or as our Church-Wardens do from House to House rogare Consilium auxilium the proper business of a Parliament to desire and entreat for their Counsel and Aid for the Honour of the King their own statum Regni and the safety of the whole Kingdom surely that had been an imployment fitter for the wandring Jew or Johannes de Temporibus and such counsel must needs have been of a very different and various nature and both agreeing very ill with the words majori festinatione and urgency of the contents of the Writs Let us then enquire what were the effects and consequents of these Writs and that brings me to the second observation King John began his Reign 6 o Aprilis the Writs bear date 6 o 8 o Martii which was the Close of An. 15 o. It may be the Winds were very cross or for some other reason the Letters might not so speedily be brought over or published here or after the summons there might be above forty days before they met But sure it is in the beginning of July after that March being the sixteenth Year of his Reign we find Nicholaus Tusculanensis Episcopus Apostolicae sedis Legatus per nuntios memoratos Domini Papae Authenticum acceperat Rex Anglorum erat in partibus transmarinis sed quoniam idem Rex in recessu suo ab Anglia Legato jam dicto Willielmo Marescallo vices suas in hoc negotio commiserat idem Legatus in urbe Londinensi apud Sanctum Paulum grande congregavit Concilium ubi congregatis Archiepiscopis Episcopis Abbatibus Prioribus Comitibus Baronibus aliis ad hoc negotium Interdicti the very business of the Writs spectantibus proposuit coram omnibus formam restitutionis And the Great Selden the Honour of the Inner-Temple or rather as the Learned Grotius Honos Britanniae to drive the nail home saith But we know by what is already shewed that divers former Parliaments were in this Kings time meaning before the granting of his Magna Charta An. 17 Joh. though the Laws made in them be lost And in the year before the Charter also which was An. 16 Joh. the Author of Eulogium sayes that Convocatum est Parliamentum Londoniis praesidente Archiepiscopo cum toto Clero tota secta laicali wherein per Domini Papae praeceptum illa obligatio quam Rex Domino Papae fecerat cum fidelitate homagio relaxatur omnino vii ' die Julii Having thus proved a Parliament in the 16 th of King John and that the Citizens and Burgesses had their Summons to it which is remarkable by a Writ particular and distinct from that of the Lords viz. the Earls Barons Magnates Angliae I will conclude this Argument with the Statute of 5 R. 2. Cap. 4. where it is enacted by the assent of the Prelates Lords and Commons That all and singular persons and Communalties be he Archbishop Abbot Prior Earl Baron c. which should have a Summons to Parliament should come from thenceforth to the Parliaments in the manner as they were bounden to do and had been accustomed within the Realm of England of old times and if they did absent themselves and came not he and they should be amerced or otherwise punished according as of old times had been accustomed to be done from hence I shall observe 1. That there were Summons to Parliament of old times as well to the Commonalties that is the Citizens and Burgesses as to the Archbishops Bishops Abbots Priors Earls and Barons and so the Statute may seem to affirm the prescription of S t Albans that saith that they had sent Duos Comburgenses sicut caeteri Burgenses regni did to every Parliament totis retroactis temporibus before E. 1. and his Progenitors 2. That the phrase of old times is in point of prescription and antiquity applied equally and without distinction or limitation as well to the great Lords as Commons But if the first had of old times as our modern Authors write been the only constituent parts of the Parliament it might in reason and prudence be thought they would not have consented to have admitted that Summons to Parliament for the Commons was Coeval with theirs nor would they have ratified and confirmed by a solemn Act the protestation or declaration of Right of the Commons of England in the Parliament 2 H. 5. n. 10. That the Commons had ever been a member of the Parliament and that no Statute or Law could be made without their assent 3. That if the Lords and Commons absented themselves and came not to Parliament they should be amerced or otherwise punished as of old times had been accustomed to be done this branch plainly agrees 1. With the Modus tenendi Parliamentum Written as M r Selden saith tempore E. 3. That the first day the Burgesses and Citizens should be called and if they did not come they should be amerced and so M r Prynn mistakes in his Animadversions when he saith that no absent Lord was fined before 31 H. 6. 2. It appears Ex vi terminorum of old times it had been so accustomed to be done that this prescription may well be applyed to the Parliament of 16 Joh. and long before for the Statute of Magna Charta 17 of that King saith Civitas London habeat omnes libertates suas antiquas by force and vertue of which word antiquas their old or ancient Liberties and Customs not only confirmed by the Magna Charta of William the First but used even in the Saxon times and before were in Parliament ratified and confirmed The THIRD ARGUMENT From the solemn and great Judgment of both Lords and Commons in the Parliament of 40 E. 3. against the Pope That if King John had An. 14. of his Reign which was three years before the granting of his Magna Charta made the Kingdom tributary to the Pope he had done it sanz lour assent which must be understood to be without the consent of the Lords and Commons and therefore void KIng John An. 14. of his Reign made himself and Crown tributary to the Pope But Anno 40 E. 3. The Prelats Dukes Counts Barons and Commons upon their full deliberation in Parliament resolved with one accord that neither the King nor any other could put the Realm nor people thereof into such subjection sanz assent de eux without their assent viz. as well of the Commons as of the Lords and that it appeared by many Evidences that if he had so done it was done sanz lour assent and contrary to the Coronation Oath And if the Pope attempted any thing against either having at the instance and sollicitation of the French King threatned to interdict or out-law both King and Kingdom They would oppose and resist him
learned Bodin of the Clergy the Nobility and the Commissioners of the Provinces and antient Cities 3. The Portugal Cortes or Parliament consists of the Bishops and Prelats the Nobiles majores minores and two Procurators or Burgesses from every City who have a deliberative voice which they call definitive 4. In Denmark Pontanus saith the Bishops the Nobility Civitatum Delegati the Deputies or Commissioners of Towns and Cities made up their General Council 5. For Sweden it does not much differ from the Government and form of Denmark their Common Council consisting of the same Estates and degrees of people that is to say Proceres Nobiles the greater and the less Nobility Episcopi Ecclesiastici Civitates Universitates the Cities Boroughs and Villages I might here if it were needful shew how great a share and interest the Hanze or free Towns in Germany have by their Deputies in all Ages had in the Diet or General Council of the Empire 6. But now at last we are come to Scotland Sir John Skene in his Epistle Dedicatory to King James before his Scottish Laws writes thus Intelligo tuas tuorumque Majorum Leges quae cum Legibus Regni tui Angliae magna ex parte consentiunt and then in his Book shews that Willielmus cognominatus Leo who as is said begun to Reign in 1105. and reigned 49. Years so as he was King of Scotland 5 10 of our Henry the first held his Assise or Parliament at Perth where several Laws were ordained to the observance whereof Episcopi Abbates Comites Barones Thani tota Communitas Regni tenere firmiter juraverunt King Alexander began to Reign Anno 1214. which was the sixteenth Year of our King John and Reigned 35. Years so as he died an 38 H. 3. he made his Laws de Consilio assensu venerabilium Patrum Episcoporum Abbatum Baronum ac proborum hominum suorum Scotiae And what the Communitas Regni in King William's Statutes and the probâ— homines in King Alexanders were the League made between the French King and the Crown of Scotland Anno 28 E. 1. clearly shews being ratified and confirmed in their Parliament per Johannem de Balliolo then King ac Praelatos Nobiles Universitates Communitates Civitatum Villarum dicti Regni Scotiae and the constant practice ever since hath been that the Cities and Boroughs have sent their Proxies or Representatives to the Parliaments of that Kingdom It may therefore seem very strange that when the Cities and Boroughs in all the Kingdoms of Europe de jure and de facto were ab antiquis temporibus even in times coeval with the Government an essential part of their Common Councils or Parliaments that England should not be under the same constitution being but descendants from Gaul or the more Northern Countries if so 1. Was it because in the Britton Saxon and Norman times there were no Cities or Boroughs or if there were were they so poor and inconsiderable as they deserved no observation in the eye of the State or 2. Was it because by a strange and unheard of fate peculiar and proper only to them they were not fit or capable to give or hear reason as well as the Delegates or Representatives of the Cities and Boroughs of France Spain Portugal Denmark Sweden and Scotland or 3. Had they no property or right in their Estates Certainly in my opinion none of these Objections can be admitted allowed or proved for In the Brittons time venerable Bede tells us Erat Britannia viginti octo Civitatibus quondam Nobilissimis insignita praeter Castella innumera quae ipsa muris turribus portis ac seris erant instructa firmissimis Nor were they of less reputation in the Saxon or Norman times when they were thought so necessary and proper for the safety of the Govern ment preservation and defence of the Laws that it was ordained by William the First and the Common Council of the Kingdom That no Market or Fair should be permitted to be held nisi in Civitatibus Regni nostri in Burgis ubi consuetudines Regni Jus Commune dignitates Coronae nostrae deperiri non possunt nec defraudari nec violari sed omnia recte in aperto per Judicium Justitiam fieri debent c. ad tuitionem gentium populorum regni ad defensionem Regni And if in the Brittons times the Nation was so strong in Cities and Castles surely it cannot be imagined but that in the Saxon and Norman times when the Nation became to be more civilized and considerable in the World the Estates or Degrees of the Inhabitants would easily part with these Liberties and Priviledges which their Ancestors though less knowing and powerful did claim and enjoy Having thus concluded my Arguments against the Position of 49 H. 3. I have thought it not altogether impertinent to add some brief Observations for the better understanding of antient Records and Historians in their various Lections and different expressions I shall therefore consider 1. The different application of the words Commune Communitas or Plebs 2. The several Denominations by which our antient General or Common Council or Parliaments were expressed 3. The various acceptation of the word Baro and that under the Phrase of Baronagium Angliae both Lords and Commons were comprehended Observation I. The different application of the words Commune Communitas or Plebs THere lies a main Objection against me for some Authors say that the words Commons Communitas or Plebs is not to be met withal in any antient Authors or Records ab ingressu Willielmi Primi usque ad excessum H. 3. and therefore conclude they were never a part of the Commune Concilium or Parliament before 49 H. 3. because not mentioned eo nomine Admitting the Objection true which I conceive otherwise yet it is no Conclusive Argument for before the Statute An. 3 R. 2. cap. 3. I cannot find the appellation of Lords Temporal nor before the 13 th of that King cap. 2. the phrase Lords Spiritual and Temporal in our Printed Statute Books Ergo from thence it follows by a necessary consequence according to their Argument that they were not any part of the Generale Concilium or Parliament before those times because not expressed by that name I suppose this Conclusion will not be admitted true But as I am well satisfied that the Archbishops Bishops Abbots and Priors who were often expressed by and comprehended in the word Praelati and who in after times constituted the Lords Spiritual and the Earls and Barons as now differenced the Lords Temporal were ab antiquo undoubtedly a part of the Commune Concilium Regni or Parliament so it may be proved if insisted upon That the Milites and libere tenentes de Regno or Angliae the Knights and Gentlemen or