nuper defuncti ut animos omnium in sui promotionem accenderet amorem ut illum in Regem susciperent patronum to which it was generally answered That if he with a willing mind would grant and by his Charter confirm to them illas libertates consuetudines antiquas which their Ancestors enjoyed in the time of Edward the Confessor in ipsum consentirent in Regem unanimiter consecrarent Henry willingly granted this and taking an Oath that he would perform it consecratus est in Regem at Westm. upon Lady day favente Clero populo and so forthwith he was Crowned by Maurice Bishop of London and Thomas Archbishop of York After such his Coronation he granted and confirmed to the Nation for the advancement of Holy Church and preservation of the peace of his people a Charter of their antient Liberties The Charter the Reader may find in that industrious Revivor and Restorer of decayed and forgotten Antiquities Mr. Lambard as also in Matth. Paris Where it appears that the Archbishops Bishops Barons Earls Vicounts or Sheriffs Optimates totius Regni Angliae were Witnesses to the Charter And that at the Coronation of the King those Laws were made de Communi Consilio assensu Baronum Regni Angliae by the common advice and assent of the Barons of England It being usual in succeeding ages at the Coronations of our English Kings to confirm make and ordain Laws De assensu Baronum Regni per Commune Concilium Regni or Parliament I shall from hence observe two things 1. That these Laws were granted and confirmed assensu Baronum Regni or Baronagii Angliae there being a clear difference between Barones Regis and Barones Regni as appears in the very bowels of those Laws and elsewhere for the K. Saith Si quis Baronum nostrorum c. but who were comprehended under those first phrases Mr. Camden will tell us Nomine Baronagii Angliae omnes quodammodo Regni ordines continentur and so the Commons as we now call them were there and assented to those Laws 2. Clero Populo universo Angliae congregatis We read King Stephen assensu Cleri Populi in Regem Angliae electus per Dominum Papam confirmatus 10 H. 2. Congregato Clero Populo Regni or as Fitz-Stephens Generali Concilio the King made the Assise or Statute of Clarendon which Council the learned Selden calls a full Parliament King John was Crowned mediante tam Cleri quam Populi unanimi consensu favore Anno 50 H. 3. Per providentiam Cardinalis meaning the Popes Legate apud Kenilworth Clerus Populus convocantur which the Patent Roll of that year thus confirms The King a le request de honourable pier Sire Ottobon Legat d'Engleterre son Parlement eust sommons à Kenilworth where the Statute or Dictum de Kenilworth was made between the King and his Communante or Parlement Rex primo postmodum Clerus Populus juraverunt quod Dictum inviolabiliter observarent Thus have I at length I hope fully ascertained and explained the Historians phrase Clerus Populus and proved it to be a Parliament from the Pat. Roll of H. 3. Yet I do not think that the Lords Temporal only were the Populus nor the Lords Spiritual the Clerus for I agree with Dr. Heylyn that there is no Record either of History or Law which I have observed in which the word Clerus serves to signifie the Archbishops and Bishops exclusive of the other Clergy or any writing whatsoever wherein it doth not either signifie the whole Clergy generally or the inferior Clergy only exclusive of the Archbishops Bishops and other Prelates and 't is my opinion as far as I can find that the word Populus following Clerus was Thema universale in significando and comprehended as well the Commons as the Lords and indeed the subject matter of the Historians speaks it William the Second Henry the First King Stephen and King John were to be elected and created Kings of England having no hereditary right 't was but reasonable then and according to the Laws and precedents of other Countries in like Cases Quod omnes tangit ab omnibus approbari debet and so was the solemn Resolution of both Lords and Commons in the Parliament 40 E. 3. That neither King John nor any other could put the Realm or people of England into subjection sanz assent de eux without their assent or as the Parliament 29 H. 3. declared sine assensu Regni or as Malmesbury says in vita Willielmi primi absque generali Senatus Populi conventu Edicto But now to close the Reign of Henry the first I will out of that excellent Historian Matthew Paris transcribe the Oration or Speech of that King to the Common Council or Parliament in the seventh year of his Reign his elder Brother Robert Duke of Normandy then claiming the Crown of England and ready to invade this Nation with a great Force the Speech of the King the learned Monk thus delivers to us MAgnatibus igitur Regni ob hoc Londoniam Edicto Regio convocatis Rex talibus alloquiis mel favum oleumque mellitis mollitis blandiens dixit Amici fideles mei indigenae ac naturales nostis veraci sama referente qualiter frater meus Robertus electus per Deum vocatus ad regnum Hierosolymitanum foeliciter gubernandum quam frontosè illud infoeliciter refutaverit merito propterea à Deo reprobandus Nostis etiam in multis aliis superbiam ferocitatem illius quia vir bellicosus pacis impatiens est vosque scienter quasi contemptibiles quos desides vocat glutones conculcare desiderat Ego vero Rex humilis pacificus vos in pace in antiquis vestris libertatibus prout crebrius jurejur ando promisi gestio confovere vestris inclinando consiliis consultius ac mitius more mansueti principis sapienter gubernare super his si provideritis scripta subarata roborate iteratis juramentis praedicta certissime confirmare omnia videlicer quae sanctus Rex Edwardus Deo inspirante providè sancivit inviolabiliter jubeo observari ut mecum fideliter stantes fratris mei immò mei totius Regni Angliae hostis cruentissimi injurias potenter animose ac voluntarie propulsetis Si enim fortitudine Anglorum roborer inanes Normannorum minas nequaquam censeo formidandas Talibus igitur promissis quae tamen in fine impudenter violavit omnium corda sibi inclinavit ut pro ipso contra quemlibet usque ad capitis expositionem dimicarent This Speech to me is another strong Confirmation and Argument against the Norman Conquest for 't is luce clarius 1. That King Henry the First did not pretend to hold the Crown Jure Victoris 2. That the English were not totally subdued and destroyed by his
THE ANTIENT RIGHT OF THE Commons of England ASSERTED OR A DISCOURSE Proving by Records and the best Historians that the Commons of England were ever an Essential part of Parliament By WILLIAM PETYT of the Inner-Temple Esq Non nulli taedio investigandae veritatis cullibet opiniâ—â— potius ignaâ—i succambunt quà m explorandâ veritati pertinaci diligentiâ perseverare volunt Min. Foelix Inter â—ericula veritatis libertatis 〈◊〉 〈◊〉 LONDON Printed for F. Smith T. Bassett J. Wright R. Chiswell and S. Heyrick 1680. To the Right Honourable Arthur Earl of ESSEX Viscount MALDON Baron Capell of HADHAM Lord Lieutenant of the County of HERTFORD one of his Majesties most Honourable Privy-Council and First Lord Commissioner of his Majesties Treasury MY LORD THere have been Authors of modern times who have in their Writings concerning the Government of this Kingdom published to the World That the Commons of England as now phrased were no part of the antient Commune Concilium or Parliament of this Nation before the forty ninth Year of H. 3. and then introduced by Rebellion A Position when seriously weighed equally wounds the Peerage of England since the same Authors say that there is no formal Summons of the Lords to Parliament found upon Record before that time After I had often considered so great a point and having often read of the freedom of this Nation that no Englishman could lose his right or property but by Law the Life and Soul of this so famous and so excellently constituted Government the best polity upon Earth which when united in all its parts by prudent Councils made always the people happy at home in Peace and the Crown ever Victorious abroad in War I did resolve to take pains to search if matters thus represented to the highest disadvantage and prejudice of the people of England were true or false which I have industriously and impartially endeavoured and hope with that clearness that will evidence to all unbiassed judgments the unsoundness of those Opinions When I had so done being unwilling my labour should be to my self alone and not to those who search after knowledge in these matters to disabuse and prevent others from building upon such mistaken and dangerous Foundations I thought it not unseasonable to publish this Discourse wherein there is no Record cited but in my opinion equally asserts the right of the Peers of this Kingdom as well as of the Commons and therefore have taken the boldness to send it into the World under your Lordships Protection whom I know to be a great Lover of Truth To which all mankind ought to pay Allegiance I should have had great satisfaction if before it had been put to the Press it might have received your Lordships judicious corrections and approbation whose knowledge and industry in venerable Antiquity and all other useful Learning is well known unto the World But this happiness I could not reasonably expect your Lordships time being so much taken up in the service of the Crown whereof your Lordship is so eminent and so great a Pillar as your Honourable Imployments both at home and abroad do sufficiently demonstrate I most humbly beg your Lordships Pardon for my presumption in this Dedication which fault I hope may be extenuated by the relation I have to your Lordship in my Profession and being deprived of other means publickly to shew my humble gratitude for the many favours your Lordship has been pleased to confer upon My Lord Your Lordships most humble most faithful and most obedient Servant W. Petyt THE PREFACE MY principal design in this following Discourse is impartially to vindicate the just honour of our English Parliament from the calumnies and reproches of some late Authors who have asserted 1. That an essential part of that Great Council viz. the Commons of England represented by the Knights Citizens and Burgesses in Parliament were introduced and began An. 49 H. 3. by Rebellion 2. That before that time the Commons were never admitted to have any Votes or share in the making of Laws for the Government of the Kingdom nor to any Communication in affairs of State To discover and refute the unsoundness of the second Position and that the contrary may appear to be true I shall before I come to answer the first consider the second and endeavour to prove that during the Brittish Saxon and Norman Governments the Freemen or Commons of England as now called and distinguished from the great Lords were pars essentialis constituens an essential and constituent part of the Wittena Gemot Commune Concilium Baronagium Angliae or Parliament in those Ages 1. Under the Brittish Government THE Brittons called their Commune Concilium or Parliament Kyfr-ythen then because their Laws were therein ordained and upon K. Lucius his Letter to Pope Elutherius to send him the Roman Laws the Pope who could not be ignorant of the constitution and frame of the Brittish Polity writes back to him Habetis penes vos in Regno utramque paginam ex illis Dei gratia per Concilium Regni vestri sume legem per illam Dei potentia vestrum rege Britanniae Regnum But what their Laws and particular Government were is very uncertain by reason that Scripta Patriae as Gildas sayes Scriptorumve Monumenta si quae fuerint aut ignibus hostium exusta aut Civium exulum classe longius deportata non comparent The Histories of our Country if there were any are not to be found being either burnt by the Enemy or carried beyond the Seas by the banished Brittons Yet this is certain and not to be denied that 〈◊〉 their elder time the People or Freemen had a great share in their publick Council and Government For Dion Cassius or Xipniline out of him in the Life of Severus assures us Apud hos i. e. Britannos populus magna ex parte principatum tenet 2. Under the Saxon Government IT cannot be doubted but that the Saxons who made themselves Masters of the Brittish Nation brought with them their Country Laws and Government and that the Commons were an essential and constituent part of their Commune Concilium Tacitus tells us De minoribus rebus Principes consultant de majoribus omnes ita tamen ut ea quoque quorum penes plebem arbitrium est apud Principes praetractentur After the Saxon Government became united and fixed under a sole Christian Monarch they still continued and kept their antient Wittena Gemots or Parliaments as now phrased wherein they made Laws and managed the great affairs of the King and Kingdom according to the Plat-form of their Ancestors Many Authorities might be given to evidence this I will instance in three or four 1. then We have that famous Parliament summoned by King Ethelbert An. 605. which my Author calls Commune Concilium tam Cleri quam populi 2. About the Year 712. King Ina assembled a great Council or Parliament wherein he
haereditario imperpetuum per Commune Concilium tâ—tius Regni nostri prâ—diâ—â—i From all which it must necessarily be granted 1. That this Statute or Law was made per Commune Concilium totius Regni 2. The Magna Charta of W. 1. H. 1. King Stephen H. 2. and King John the last of which sayes Nullum scutagâ—um vâ—â—â—â—â—xilium ponam in Regno nostro 〈◊〉 per Commuâ—â— Coâ—silium Regni â—â—stri the same in substa 〈…〉 with the Great Charter of William 〈◊〉 was but 〈◊〉 restiâ—â—â—â—on and declaration of the antient Common Law and right of the Kingdom and no Law introduced de novo or forced upon King John at Running-mead to the disinberison of the Crown and which by their several sacred Coronation Oaths they had so solemnly sworn inviolably to observe and keep 'T is true indeed King William the First gave away the Estates of several of those who were in Arms against him to his Adventurers and followers but the rest of the English as well by his Coronation Oath as by a solemn ratification of St. Edwards Laws in a Parliament in his fourth year were to enjoy their Estates and the benefit of those Laws but that being not done in the general and the English who declared à majoribus didicisse aut libertatem aut mortem being opprest by the King and Normans begun to be very uneasy under his Government so that things were brought to that pass that he vehemently feared ne totum Regnum turpiter amitteret etiam trucidatus to obviate which mischiess in the seventh year of his Reign for so I take it by the policy of Lanfrank Archbishop of Canterbury serena facie vocavit eos i. e. the English ad pacem sed subdolam who meeting at Berkhamsted post multos disceptationes both parties came to a second-compact and the King to give them satisfaction reiterated his Coronation Oath and swore upon the Holy Evangelists and Reliques of St. Alban bonas approbatas antiquas Regni leges quas sancti pii Angliae Reges ejus Antecessores maxime Rex Edwardus statuit inviolabiliter observare sic pacificati ad propria laeti recesserunt Rex autem caute propositum suum pallians perswaded many of the principal of the Nobility and Gentry to attend him into Normandy where Civitatem quae Cynomannis Provinciam ad illam pertinentem maximo Anglorum auxilio quos de Anglia secum adduxerat sibi subjugavit the rest that remained here he suddenly set upon apà rt which he durst not attempt when united multos eorum trucidando exhaeredando quamplures proscribendo leges violans memoratas spoliatis Anglis pro libitu ac sine judicio Curiali depauperatis suos Normannos in suorum hominum Anglorum natalium qui ipsum sponte sublimaverunt provocationem locupletavit So that after this time 't is plain he bore a heavy hand upon the English and increased his severity to acts of high injustice and barbarous cruelty and so gave occasion to Historians in future Ages to say that when he came in he totally subdued and crushed the Nation Nobility and Gentry Yet notwithstanding the great power he took we meet with some general Councils or Parliaments in his Reign whereby it appears that the Freemen or Commons of England were there and had a share in making of Laws for what could the promised restitution of the Laws of Edward the Confessor signifie if their Wittena Gemot or Parliament the Augustissimum Anglicarum libertatum Asylum sacra Anchora was destroyed and broken For one of the fundamental and principal ends of Parliaments was for the redress of Grievances and easing the Oppressions of the People The Mirror of Justices an antient and learned Treatise of the Law saith that Parliaments were instituted pur oyer terminer les plaintes de tort de le Roy de la Roigne de lour Infans de eux specialment de queux Torts lun ne poet aver autrement common droit To hear and determine the Complaints of the wrongful Acts of the King the Queen and their Children and especially of those persons against whom the subject otherwise could not have common justice And Knighton one of our best Historians writes Quod ex antiquo Statuto Consuetudine laudabili approbata c. That by an antient Statute and Custom laudable and approved which no man could deny the King was once in the year to convene his Lords and Commons to his Court of Parliament as to the highest Court of the whole Realm In qua omnis Aequitas relucere deberet absque qualibet scrupulositate vel nota tanquam sol in ascensu meridiei ubi pauperes divites pro Refrigerio tranquilliratis pacis Repulsione injuriarum refugium infallibile quaerere possent ac etiam errata Regni reformare de statu gubernatione Regis Regni cum sapientiori Concilio tractare ut Inimici Regis Regni intrinseci Hostes extrinseci destruantur repellantur qualiter quoque onera incumbentia Regi Regno levius ad Ediam Communitatis supportari poterunt In which Court all Equity ought to shine forth without the least Cloud or Shadow like the Sun in its meridian glory where poor and rich refreshed with peace and ease of their oppressions may always find infallible and sure refuge and succour the grievances of the Kingdom redrest and the state of the King and Government of the Realm debated with wiser Councils the Domestick and Foreign Enemies of the King and Kingdom destroy'd and repell'd and to consider how the Charges and Burthens of both may be sustained with more ease to the people But to return An. D. 1070. which was in the third and fourth year of William the I. at a General Council or Parliament Lanfranc was chosen Archbishop of Canterbury Eligentibus eum senioribus ejusdem Ecclesiae cum Episcopis ac Principibus Clero Populo Angliae in Curia Regis in Assumptione Sanctae Mariae Another Author relates it thus Rex mittens propter illum in Normanniam fecit eum venire in Angliam cui consensu consilio omnium Baronum suorum omniumque Episcoporum Abbatum totiusque Populi Angliae commisit ei Dorobernensem Ecclesiam Anno 1072. The King summoned a General Council or Parliament at Pinneden in Kent to examine and determine the great cause between Lanfranc Archbishop of Canterbury and Odo Bishop of Bayeux Earl of Kent because the first libertatem Ecclesiae Cantuariensis invaserat yet Judgment went for the Archbishop which Mr. Selden sayes was confirmed totius Regni assensu or as Eadmerus stipulatione totius Regni In the fourteenth Year of this King at a General Council or Parliament held at Westminster the King by his Charter confirmed the Liberties of that Church after he had subscribed his own name with the sign of the Cross adding
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
qui inter alios Principes orbis terrae Catholicum se exhibet Romanae Ecclesiae devotum jura sua libertates consuetudines leges praedictas absque diminutione inquietudine pacifice possidere ac illibata persistere benignius permittatis In cujus rei testimonium Sigilla tam pro nobis quam pro tota Communitate praedicti Regni Angliae praesentibus sunt appensa Datis actis Lincolniae Anno Dom. 1301. 2. The second is the Letter to the Pope made at the Parliament 17 E. 3. touching Provisions Quod Rex tota Nobilitas Regni pati noluit c. thus translated whereby the phrase Nobilitas Regni in the Historian will be explained TO the most holy Father in God Lord Clement by the grace of God of the holy Church of Rome and of the Universal Church Chief and high Bishop His humble and devout Children The Princes Dukes Earls Barons Knights Citizens and Burgesses and all the Communaltie of the Realm of England assembled at a Parliament holden at Westm. the 15 th day of May last past c. In Witness whereof we have hereunto set our Seals Given in the full Parliament at Westm. on the eighteenth Day of May Anno Dom. 1343. And indeed the Commons were so highly incensed that the Parliament Roll of this Year tells us that La dite Commune ne le poet ne le 〈…〉 t plus endurere those strange oppressions of the Pope and Provisors So that the Parliament of 24 H. 8. after great debate and consideration and a diligent search and inspection of the Antient Records of the Kingdom did ground their Statute amongst others upon these great Authorities the Statute saith Whereas the King his most noble Progenitors and the Nobility and Commons of the said Realm at divers and sundry Parliaments as well in the time of King Edw. 1. 〈◊〉 3. R. 2. H. 4. and other noble 〈◊〉 of this Realm made sundâ—â— Or 〈…〉 s Laws Statutes and p 〈…〉 for the entire and sure 〈…〉 tion of the Prerogative Lib 〈…〉 and preheminencâ—â— of th 〈…〉 〈◊〉 Imperial Crown of this Realm and of the Jurisdiction Spiritual and Temporal of the same to keep it from the annoyance as well of the See of Rome as from the authority of other Foreign Potentates attempting the diminution and violation thereof as often and from time to time as any such annoyance or attempt might be known or espied Pulton's Stat. 24 H. 8. c. 12. But to conclude the point of the Various Lections Certainly the different and great variety of words and phrases by which both the antient Historians and Records have in their several Ages and Times expressed and denoted the Communia Concilia Regni or Parliaments as now called and their constituent parts being not well observed and considered by most of our late English Authors who understood them as if they had signified what afterwards they did and now do have imposed on our Historical Faiths and propagated to posterity many palpable and gross errors whereby great and unkind clashings and diversities of opinions as well amongst learned men as others have had their source and spring nay even between Prince and People THE General Conclusion MY only aim and endeavour in this Discourse hath been from publick Records private Manuscripts and the best Historians to search out and discover truth and to assert the just honour of our worthy and famous Ancestors Commoners of England as now phrased great maintainers of the interest and dignity of the King and Kingdom and with submission to better Judgment I hope I have plainly proved 1. That the Freemen or Commons of England were an essential and constituent part of the Saxon Wittena Gemott or Parliament 2. That they so continued in the times of W. 1. W. 2. and H. 1. which last being an Englishman by way of Charter restored and confirmed the Laws of Edward the Confessor as his Father William 1. as well by his Magna Charta or Great Charter as by his Oaths had before done both when he was Crowned and also at Berkhamstead in the seventh Year of his Reign 3. And though the Rolls of Parliament in the succeeding Kings Reigns till E. 2. be lost or not found so as we are at a loss as to the several Orders of Parliament yet by what has been deduced from other Records before cited it is evident I conceive that the Citizens and Burgesses were a part of the Parliament Anno 16. of King John and so had not their beginning by rebellion Anno 49 H. 3. And therefore I may with good reason and warranty conclude That our Ancestors the Commons of England the Knights Gentlemen Freeholders Citizens and Burgesses of a great and mighty Nation were very far from being in former times such Vassals and Slaves or so abject poor and inconsiderable as the absurd and malitious ignorance and falsities of late Writers have been pleased to make and represent them especially the Author of the Grand Freeholders Iâ—quest and Mr. James Howel as if they were only Beasts of carriage and burden ordained to be taxed and tâ—lliâ—â—ed and have their Lives Estates and Liberties given away and disposed of without their own assents under a novel opinion and conceit that they were no part of the Commune Concilium Regni or Parliament before 49 H. 3. Perlege quae Regni clarissima Conciliorum Sunt Monumenta aliter nil praeter somnia cernis Appendix AFter I had compleated the foregoing Arguments a material Objection was by some of my Friends offered me which if not cleared in this discourse might in their judgment give a colour and pretence for a belief of an Opinion which is this That the Commons or people of England were from the time of the Norman Conquest represented by such as held of thâ— K 〈…〉 〈◊〉 Capite until 49 H. 3. and 〈◊〉 by two 〈◊〉 for each County and certain Burgesses for several Burroughs and Barons for the Cinque Ports Having before laid down a clear and plain distinction between Barones Regis and Barones Regni I shall therefore now distinguish upon the phrase Milites libere â—enenâ—es 1. Milites libere tenâ—ntes qui de Rege tenent in Capite 2. Milites libere tenentes de Regno The first Distinction I thus prove Rot. Pal. 2. Johannis m. 9. Rex dilecâ—is fidelibus 〈…〉 s Baronibus Militibus libere tenentibus qui de eo tenent in Hi 〈…〉 rnia Rot. Claus. 19 H. 3. m. 7. 8. dorso Re◠〈◊〉 〈◊〉 Sciatis quod Ar 〈…〉 〈◊〉 Aâ—baâ—es Priores C 〈…〉 〈◊〉 〈◊〉 omâ—â—s alii de Regno qui de nobiâ—â—â—nent in Capite spontanea 〈◊〉 〈◊〉 〈◊〉 consuetudine con 〈…〉 〈◊〉 〈◊〉 〈…〉 lium ad magna neâ—â—tia 〈◊〉 eâ—pedienda Rot. Claus. 26 H 3. m. 7. dorso Rex 〈…〉 omili Norhamptoniae praecipimus tâ—â—i 〈◊〉 alias praecipimus quâ—d 〈◊〉 facias Archiepi 〈…〉
many of the great Clergy and Temporal Nobility instead of Cum multis aliis hath these words multis praeterea illustrissimis virorum personis Regum Principibus diversi Ordinis omissis qui similiter huic confirmationi piissimo affectu testes fautores fuerunt Hii autem illo tempore à Regia potestate diversis Provinciis Urbibus ad universalem Synodum pro causis cujustibet Christianae Ecclesiae audiendis tractandis ad praescriptum celeberrimum Synodum quod Westmonasterium dicitur convocati c. In the margine of the Book I find writ this note Nota hic hos omnes convocari à Rege sua auctoritate ad causas Religionis tractandas tam Nobiles de Clero quam Principes Regni cum aliis inferioris gradus Conventio quorum videtur esse Parliamentum And in the Year-Book of E. 3. above 330. years since in a Case touching the exemption of the Abbey of Bury from the Bishops of Norwich we have mention of a Parliament held en temps de W. Conqueror à son Parlement King William the Second KIng William the First being dead William his second Son then living succeeded him in the Kingdom who designing to prevent his elder Brother Robert of the Crown finding Lanfranc Archbishop of Canterbury not altogether consenting with him therein to the compleating his desire and fearing lest the delay of his Consecration might prejudice his desired honor he begun by giving large gifts and rewards to the people and as well by himself as all others whom he could engage fide sacramentoque Lanfranco promittere by his Faith and Oath to promise unto Lanfranc Si Rex foret Justitiam aequitatem misericordiam se per totum Regnum in omni negotio servaturum he would in all actions observe and keep Justice Equity and Mercy through the whole Kingdom that he would defend the Peace Liberty and safety of the Church against all men and also that he would in and through all things obey the Precepts and Counsels of the Arch-Prelate thereupon in Regem eligitur consecratur But not long after Odo Bishop of Baiox Earl of Kent Geffrey Bishop of Constance Robert Earl of Morton Roger Earl of Shrewsbury and the greatest part of all the Norman Prelates and Nobility in England entred into a Conspiracy to make Robert King and to deliver King William to his Brother alive or dead and thereupon they took Arms the King hearing these things and foreseeing his inevitable ruine if the English power did not preserve him caused the English to be assembled together and shewed them the Treason of the Normans and intreats and begs them to help and defend him upon this condition that if they would be faithful to him in that his necessity and distress he would grant them better Laws which they should chuse and would forbid or interdict all unjust Scotts Taxes or Tallages and grant to all persons their Woods and Hunting Upon which assurance and promise the English did faithfully assist him and by thier power valiantly overthrew the Normans and preserved and fixed the Crown upon Williams head But whatsoever he promised he kept but a short time the words of the Author are His auditis Rex fecit congregari Anglos ostendit eis traditionem Normannorum rogavit ut sibi auxilio essent eo tenore ut si in hac necessitate sibi fideles existerent meliorem legem quam vellent eligere eis concederet omnem injustum Scottâ—m interdixit concessit omnibus sylvas suas venationem Sed quicquid promisit parvo tempore custodivit Angli tunc fideliter eum juvabant 'T is therefore evident from hence that William the Second did not claim the Crown jure gladii by the power of the Sword nor did he affirm that he had a despotical right to make or change Laws ad libitum suum sine assensu Regni or Parliament And 't is a great observation to me that from the pretended Conquest to this day I never read of any King of England that declared and publickly owned any such prerogative or right but only that miserable and unfortunate Prince Richard the Second which the Parliament Roll thus expresseth Item Idem Rex nolens justas leges consuetudines Regni sui servare seu protegere sed secundum suae arbitrium voluntatis facere quicquid desideriis ejus occurreret quandoque frequentius quando sibi expositae declaratae fuerant leges regni sui per Justiciarios alios de Concilio suo secundum leges illas petentibus justitiam exhiberet dixit expresse vultu austero protervo quod leges suae erant in ore suo aliquotiens in pectore suo quod ipse solus possit mutare condere leges regni sui opinione illa seductus quampluribus de ligeis suis justitiam fieri non permisit sed per minas terrores quamplures à prosecutione communis justitiae cessare coegit But far different were the sentiments and Judgment of his Grandfather Great Edward the third who tells us Because that by divers Complaints made to us we have perceived that the Law of the Land which we by our Oath are bound to maintain is the less well kept and the Execution of the same disturbed many times by maintenance and procurement as well in the Court as in the Country We greatly moved of Conscience in this matter and for this cause desiring as much for the pleasure of God and ease and quietness of our Subjects as to our Conscience and for to save and keep our said Oath We have ordained c. And wise King James saith That not only the Royal Prerogative but the Peoples security of Lands Livings and Priviledges were preserved and maintained by the antient fundamental Laws Priviledges and Customs of this Realm and that by the abolishing or altering of them it was impossible but that present confusion will fall upon the whole state and frame of this Kingdom And his late Majesty of ever blessed memory was of the same mind and opinion when he said The Law is the Inheritance of every Subject and the only security he can have for his Life or Estate and the which being neglected or dis-esteemed under what specious shew soever a great measure of infelicity if not an irreparable confusion must without doubt fall upon them Henry the First AFter the Death of King William the Magnates Angliae not knowing what was become of Robert Duke of Normandy Eldest Brother of the deceased King the said Duke having been absent for five years in a Voyage to the Holy Land were afraid to be long without a King which Henricus fratrum ultimus juvenis sapientissimus cum callide cognovisset congregato Londoniis Clero Angliae Populo universo promisit emendationem legum quibus oppressa fuit Anglia tempore patris sui fratris
Father William the first 3. That the Son as well as the Father had several times solemnly sworn to the inviolable observance of the Laws of St. Edward or of the Saxon Government 4. King Henry does not depend on the Normans that came in with his Father no it was upon the English Common Council or Parliament nor did he call them Vassels and Slaves but Amici Fideles mei naturales in them he fixt his only hope and assurance both for their Fidelity and Courage and believed that they would as indeed they did preserve and defend his Crown and Life against the great Power and Policy of his and the Kingdoms most bloudy Enemies who were ready to Invade both with a mighty Army it being then Prudentially and Politickly resolved unanimously in Parliament not to permit or suffer the Duke to land here but to fight him in his own Country which the English then did forty years after the coming in of William the first and at one Battle not only totally conquered and overthrew the Normans but took Robert their Duke Prisoner and thereby put a period to the dangers and fears of King Henry the first and in despite of the French Power set the Ducal Crown of Normandy upon the head of King Henry an English-man and after Robert had remained for some time in Prison at last to conclude the Catastrophe of his unhappy life he had his eyes burnt out of his head and so by a sad fate left all to the English King From all which Authorities and Reasons under correction it is sufficiently evidenced that in the Brittish Saxon and Norman Governments the Commons as we now phrase them had Votes and a Share in the making and enacting of Laws for the Government of the Kingdom and that they were an essential part of the Commune Concilium Regni Wittena Gemot or Parliament before and after the supposed Conquest by King William the First Having thus concluded my Preface I shall now diligently apply my self to discuss that grand point touching the introduction of the Commons into our great Council or Parliament as represented by the Knights Citizens and Burgesses being indeed the principal work I intended and was finished before this Preface the difficulty of which cannot be well judged of but by those who have undertaken subjects of like intricacy for I have at a great charge and expence of time and without any mans assistance or help out of the dark and neglected paths of Antiquity endeavoured to make truth publick and general and with submission I hope it will appear that I have rescued from the force and power of a dangerous growing errour the just and ancient rights and priviledges of our Ancestors in a matter of the highest moment and concern which is impartially debated in the ensuing Discourse a subject whereof to the best of my knowledge no Author hitherto hath so particularly treated A DISCOURSE Wherein is proved That the Commons of England were an essential part of the Parliament before the 49 th of Hen. 3. SEveral great and learned Authors of our Age having in their works and writings frequently published and asserted to the world this Position as an unquestionable truth That the Commons in Parliament as distinguished from the Lords compounded of Knights Citizens and Burgesses had their first birth and beginning by Rebellion An. 49 H. 3. and that too after the Battle of Lewes when the Barons had the King and Prince in their power as Prisoners and exercised Regal Authority in his name The consideration and consequents thereof raised in my mind a great desire seriously and impartially to enquire into so important a point of Antiquity and the better to satisfie both my own judgment and the judgments of some of my Friends I have run over many Records and Historians both Ancient and Modern in Print and Manuscript but cannot find any authority or reason to give a colour to so harsh an assertion I shall therefore under an humble submission to so eminent Antiquaries endeavour to disprove this notion of 49 H. 3. by these following Arguments 1. From the Claim and Prescription of the Borough of S t Albans in the Parliament of 8 E. 2. to send two Burgesses to all Parliaments sicut caeteri Burgenses Regni totis retroactis temporibus in the times of E. 1. and his Progenitors if so then in the time of King John Grandfather to E. 1. and so before H. 3. 2. From Records An o 15 o 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 St. Albans 3. From the solemn resolution and great judgment of both Lords and Commons in the Parliament of 40 E. 3. against the Pope That if King John had An o 14 o 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 4. From several Records inter alia de Annis 28 32 37 42 48 H. 3. mentioning Parliaments then held and their proceedings in some of which the word Commons is expresly mentioned as well as the Prelates and Magnates to be part of those Parliaments 5. From an act of Parliament 2 H. 5. that famous Prince where it is declared and admitted that the Commons of the Land were ever a part of the Parliament and so consequently were part of the Parliaments Annis 16 17 Johannis 28 32 37 42 48 H. 3. all within the prescription of the Borough of St. Albans 6. From the form of penning of Acts of Parliament and expressions in Records in 49 51 54 H. 3. when it is granted that the Commons were a part of the Legislative power which agree with the phrases of Records of Acts of Parliament before that time 7. From the defect and loss of the 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 8. From the various opinions of learned men in and since H. 8. time who never dreamed of any such origine nor was ever heard of till of late 9. From comparing of the ancient Generale Concilium or Parliament of Ireland instanced An o 38 H. 3. with ours in England wherein the Citizens and Burgesses were which was eleven years before the pretended beginning of the Commons in England The FIRST ARGUMENT From the claim and prescription of the Borough of St. Albans in the Parliament of E. 2. to send two Burgesses to all Parliaments sicut caeteri Burgenses
ove tout lour puissance The observations I shall make from this great Judgment shall be two 1. That above 300. Years ago there was not the least scruple or fancy that the Commons of England of which the Citizens and Burgesses were then undoubtedly a part ought not and were not to be present in the Commune Concilium Regni or Parliament of King Johns Reign and to have assented to that Kings resignation An. 14. to make it legal and valid as well as the Prelates Earls and Barons 2. If the Commons had never been a part of the Parliament before 49 H. 3. but that the King and great Lords only made Laws and had an inherent power as some of our Modern Writers say to tax the whole Kingdom de alto basso ad libitum suum jure repraesentationis surely they would not have left recorded to posterity so great a testimonial of the antiquity and right of the Commons of England then so distinguished from the great Lords as is expressed in the Roll May it not then be admitted they spoke nothing but what was an undisputable truth in diebus illis unless we must believe that the great and learned Authors of this Age better understand the constituent parts of the Communia Concilia or Parliaments of King Johns time and so upward above 460. Years since than the whole Parliament of 40 E. 3. the Parliaments of their Grand-Fathers time as was the Reign of King John And indeed this famous resolution was no other than a Declaration of the antient Common Law of the Land before the Norman Duke gained the Imperial Crown of England as appears by King Harolds Answer to his Ambassadors requiring the performance of the Kings Oath to take the Dukes Daughter to Wife and to preserve the Crown for him De Regno addebat praesumptuosum fuisse quod absque generali Senatus populi Conventu Edicto alienam illi haereditatem juraverit Which is recorded by William of Malmsbury Lib. 3. p. 56. l. 24. in vita Williemi I. an Author without all exception who flourished in the time of H. 1. and therefore could not be ignorant where and in whom the Legislative Power of England did reside there being but 33. Years from the coming in of the Norman Duke till the Reign of that King and of this Historian the learned Balaeus gives this Eulogium Vir erat suo seculo in omni genere bonarum literarum plene eruditissimus in eruendis antiquitatibus ingenio diligentia industria singularis Angliae nostrae nationis studosissimus illustrator Upon the Death of Arthur Duke of Bretaign the Annals of England tell us that King John was Summoned by the French King as Duke of Normandy to appear at his Court and judicially to answer the pretended murder of Arthur his Nephew whereupon the Bishop of Ely and Hubert de Burgo after Earl of Kent and Chief Justice of England nuntii solemnes prudentes were sent to the French King to whom the Bishop thus spake Domine Rex non possit Dux Normanniae ad Curiam vestram venire nisi veniret Rex Angliae cum una persona sint Dux Rex Quod non permitteret aliquo modo Baronagium Angliae etsi ipse Rex hoc vellet So careful was the Baronage or Parliament to preserve the antient rights safety and honour of the King and Kingdom An. 3 Joh. before any difference happened between him and his Subjects Anno 29 E. 1. the King sent Ambassadors to the French King ut quid de truga de guerra de pace deliberasset nunciaret and was answered se non posse sine duodecim paribus qui occupati fuerunt circa novam guerram tam ardua tractare but that he expected their coming in fifteen daies Quo tempore transacto ipsis consentientibus they declare that they could not determine thereof inconsultis secum Scotis Whereupon those Ambassadors returned Igitur convocato Parliamento Londoniis recitatisque frustratoriis dilationibus falsis machinationibus praedictorum Ambassadors were again sent and received this answer Quod Rex Angliae adveniret personaliter inter duos Reges de optima pace conveniretur Whereupon the King of England Aliud habuit Parliamentum in quo talia recitata displicuerunt ex totius Regni Concilio or Parliament definitum est Regem pro aliquo mandato vel suggestionibus ab Anglia egredi non debere From what hath been said the Reader may easily observe 1. That the weighty and great affairs which concerned the King and Kingdom both in the Saxons time and after were by a fundamental principle and law of the Nation to be consulted of and resolved in the Communia Concilia or Parliaments and that no particular person or order of men did take upon them such power sine consensu Regni and this H. 3. and his Council well knew when he told Otto the Popes Nuntio Quod solus non potuit definire nec debuit negotium quod omnes Cleriâ—os Laiâ—os generaliter totius Regni tangebat which E. 1. and his Council in the 23 th Year of his Reign thus confirms Quod omnes tangit ab omnibus approbetur 2. That the Generalis Senatus Populi Conventus Edictum or Saxon Wittena Gemott the Baronagium Angliae in King Johns time and the Concilium Regni or Parliamentum in the Reign of E. 1. were verba synonyma differing in phrase but one and the same Assembly in substance The FOURTH ARGUMENT From several Records inter alia de Annis 28 32 3â— 42 48 H. 3. mentioning Parliaments then held and their proceedings in some of w 〈…〉 the word Commons are expresly mentioned as well as the Prelates Magnates to be part of those Parliaments THE general Council at Runningmead held 17 Jâ—â— is 29. Years after and 20. Years before 49 H. 3. called Parliamentum de Runemed Memorandum quod in Parliamento a die Pasch. in tres septimanas Anno Regni Regis H. 3. 28. London celebrato negotium Crucis in Anglia una cum collectione decimae benefiâ—â—â—rum Ecclesiasâ—â—corum Domino Regi in Subsidium terrae Sanctae à sede Apostolica deputat was treated of An Utlary against William de Hastingcott was reversed and he restored to all he had lost thereby and this done Coram Rege toto Parliamento Inter Communia Hilar. 17 E. 3. penes Rememoratorem Domini Regis in Scaccario It appears in a Plea between the King and the Prior of Coventry that 29 32 H. 3. quaedam subsidia per Magnates Communitatem Regni spontanea mera voluntate Regi concessa or as Bracton phraseth it Ex consensu Communi totius Regui being one and the same with Magnates Communitas towards the marrying of the Kings Eldest Daughter and also the Kings Sister to Frederick the Emperour which was done in Parliament for the
Close Roll of that Year tells us of a Parliament Consideratum fuit in Curia nostra toto Parliamento nostro c. In a Parliament 37 H. 3. for so Mat. Westm. calls it pag. 352. Rex Magnates Communitas populi protestantur publice that they would never consent to any thing in the grand and terrible Excommunication then to be pronounced by the Clergy against the infringers of Magna Charta contra consuetudines Regni antiquas usitatas In cujus rei testimonium imposterum veritatis testimonium as well the King as the Earls of Norff. Heref. Fssex ad Warwick as Peter de Sabaudia at the instance and desire aliorum Magnatum populi praesentium scripto sigilla sua apposuerunt Rex c. Cum nuper in Parliamento nostro Oxon. communiter fuit ordinatum quod omnes excessus injuriae factae in Regno nostro inquirentur per quatuor milites singulorum Comitatuum ut cognita inde veritate facilius corrigantur c. I have an Abridgment or abstract of the Rolls of this Parliament writ by the hand of Mr. Elsing late Clark of the Parliament who saith my Lord Coke had it and some of the proceedings therein mentioned I have found in the Exchequer enrolled at that time The Articles of Peace à Domino Rege Domino Edwardo Praelatis Proceribus omnibus Communitate tota Regni Angliae communiter concorditer approbata were sealed by the Bishop of Lincoln the Bishop of Ely Earl of Norff. Earl of Oxon Humphry Bohun Will. de Monte Canisio Major London in Parliamento London Mense Junii Anno Domini 1264. de consensu voluntate praecepto Domini Regis nec non Praelatorum Baronum ac etiam Communitatis tunc ibidem praesentium And not only so but that Record tells us Quod quaedam Ordinatio facta in Parliamento London habito circa festum Nativitatis Sancti Johannis Baptistae proxime praeteritum pro pace Regni conservanda And we read in another Record Rex c. Cum super praeteritis guerrarum discriminibus in Regno Angliae subortis Quaedam ordinatio seu forma pacis de nostro Praelatorum Baronum totius Communitatis Regni praedicti unanimi voluntate assensu provida deliberatione inita fuerit c. â—n cujus rei testimonium huic Scripto nos Rex Angliae Comes Leyc Glouc. Jo. filuis Johannis Johannes de Burgo Sen. Will. de Monte Canisio Henr. de Hastings Gilbertus de Gaunt pro nobis caeteris Baronibus Communitate Regni Angliae Sigilla nostra apposuimus Dat. apud Cantuar. die Jovis proximè post Festum Nativitatis beatae Virginis Anno 1264. And therefore those that hold that there were no Commons or Citizens and Burgesses in Parliament before 49 Hen. 3. would do well to define and ascertain who the Communitas were after the words Praelati Barones Magnates in the before-expressed Records The FIFTH ARGUMENT From an Act of Parliament An. 2 H. 5. that famous Prince where it is declared and admitted that the Commons of the Land were ever a part of the Parliament and so consequently were part of the Parliament Annis 16 17 Joh. 28 32 37 42 48 H. 3. all within the prescription of the Borough of S. Albans THE Commons of England upon their claim or protestastation had as their undoubted and unquestionable right and inherent priviledge allowed and admitted in Parliament that they had ever been a member of Parliament then were they a member of that 16 Joh. before-mentioned of 17 Joh. 28 32 37 42 48 H. 3. and that no Statute or Law could be made without their assent The Record says That so as hit hath ever be their liberte and freedome that thar should no Statute ne Law be made of lass then they yaffe therto their Assent considering that the Commune of your Lond the which that is and ever hath be a membre of your Parliament ben as well Assentirs as Petitioners Yet was the affirmation of the Commons no other than a renovation or memorial of the ancient Law of the Land as is proved before and more fully explained and confirmed by the Petition to the King and his Learned Council and answer thereto in the Parliament of 8 E. 2. The Record is not unworthy of a serious perusal Erchevesque Evesque Prelatz Counts Barons autre gentz de la Comunyalte Dengleterre que tiegnent lour Manoirs en chief de nostre Seigneur as well within the Forest as without to which Mannors they had Gasz Wast appendant dont les Seignourages avantditz arentunt by the acre half acre per rode en approvaunt lour Manoirs Whereupon the Ministers of the King made seisure thereof Pur ceo qu' eux ne unt la licence le Roy d'entrer Therefore they pray that they may approver leur Manoirs le povre pueple eyser c. Responsum in dorso Il ne put estre fait sanz novele ley la quele chose fere la Comunalte de la terre ne vult my uncore assentir infra Coram rege From hence I make these Observations 1. It proves that the Law could not be altered without consent of the Commons of England though in a case particular to the King as this was for the Petition was coram Rege nor could the King and Commons without the Lords For E. 3. per avys des Prelatz Grauntz de la terre fist respondre as les petitions des Communes touchantes la leye de la terre que les leyes eues useez en temps passez ne le processe dycelle useez cea en arere ne se purrent changer sanz ent faire novel Estatute which as then they could not attend but shortly would 2. That they ought to agree to all new Laws and that no Statute could be made without their assent It is then remarkable 1. That the Commons of England as now we stile them gave their suffrage and vote in the enacting and making of all Statutes and Laws in the time of the Progenitors of H. 3. which taken extensivè is a very large prescription of right for that King by the Statute of Assisa panis cervisiae made after 49. when it is pretended the Commons began viz. An. 51. tells us That at his Parliament held the first year of his Reign he had granted that all good Statutes and Ordinances made in the time of his Progenitors and not revoked should still be held 2. But admitting the word Progenitors be restrained to two which I conceive was never intended by the Law-makers yet it cannot be denyed but that the Statute of Magna Charta for so it is called 5 H. 3. Fitz-herb Abrid tit Mordaunc n. 53. and by Fleta Lib. 1. Cap. 28. and all other Statutes made at least temporibus Johannis Ricardi I. Father and Uncle of Henry
the Third had the assent of the Commons in Parliament to make them Laws Now the word Progenitors in the Statute must I conceive go higher than Ric. 1. for Bracton a Learned Judge who flourished in the time of Henry the Third and so by a reasonable computation of time may be supposed to have lived in the latter end of the Reign of Ric. 1. or beginning of King John's after he had declared to posterity that he had bent his mind ad vetera judicia perscrutanda diligenter non sine vigiliis labore and whatsoever he found Notatu dignum he reduced in unam summam perpetuae memoriae commendanda concludes this point thus Cum legis vigorem habeat quicquid de consilio de consensu Magnatum Reipublicae communi sponsione authoritate Regis sive Principis praecedente justè fuerit definitum approbatum And so just and excellent was the ballance of the Constitution of our legal Government in preventing any order or rank of the Subjects to impose upon or bind the rest without their common consent and in conserving as it were an universal liberty and property to every individual degree of men from being taken from them without their assent as the County Palatine of Chester ab antiquo were not subject to such Laws to which they did not consent for as well before the Conquest of England as after they had their Commune Concilium or Court of Parliament by authority of which the Barones Milites quamplures alii Rot. 44 H. 3. m. 1. dorso Barones liberi homines omnes alii fideles Rot. Pat. 3. E. 1. m. 6. or as the Supplication to H. 6. saith The Abbots Priors Clergy Barons Knights Esquires and Commonalty did with the consent of the Earl make or admit Laws within the same such as should be thought expedient and behoveful for the Weal of the Inheritors and inheritance of the said County and no Inheritors or Possessors within the said County were chargeable or liable or were bounden charged or hurt of their Bodies Liberties Franchises Lands Goods or Possessions unless the said County or Parliament had agreed unto it And I dare under submission affirm that neither this County Palatine nor Durham were ever subjugated to have their Estates given away at the good will and pleasure of the Earl or Bishop under any notion or fancy in those days of being their representatives in the Commune Concilium Regni or that being dependant Tenants their consents were included in their Lords assent and if the Commune Concilium Cestrense or Parliament was deduced from Records it would be of greater use to shew us as in a Mirror the Government of England in antient days than what I have yet seen published by any Author 3. That the Answer of the King to the Petition penned and made by all the Judges of the Land his Council in Parliament cannot be supposed to be grounded upon a modern usage of 59. years from the time of 49 H. 3. till then if the Tenants in Capite jure repraesentationis made the Parliament as some hold but was a Declaration of the ancient Custom and right of the Nation 4. That it was not in the power of all the Tenants in Capite of England or the greatest part who were the Petitioners though with the Kings consent to bind and oblige others or to make or alter a Law sine assensu Communitatis Regni who had votum consultivum and decisivum an Act of Authority and Jurisdiction as well in assenting to spiritual Laws as Temporal as may appear for an inâ—tance in their Declaration or Protestation to E. 3. in Parliament Que nul estatut ne Ordenance soit fait ne grante au Petition du Clergie si ne soit per assent de voz Communes ne que vous dites Communes ne soient obligez per nulles constitutions q'ils font pur lour avantage sanz assent de voz dites Communes Car eux ne veullent estre obligez nul de voz Estatuz ne Ordinances faitz sanz lour assent Fortescue cap. 8. pag. 40. tells us Sed non sic Angliae Statuta oriri possunt dum nedum Principis voluntate sed totius Regni assensu ipsa conduntur Et si Statuta licet tanta solennitate prudentia edita efficaciae tantae quantae conditorum cupiebat intentio non esse contingant Concito reformari ipsa possunt non sine Communitatis Procerum Regni illius assensu quali ipsa primitus emanarunt And that this was the antient Law and Right of the Kingdom appears by the answer of E. 1. an o 22. of his Reign to the Petition of the whole Clergy of England for the Clergy having given the King medietatem omnium bonorum tam temporalium quam spiritualium complaining that the Immunity of the Church laesa fuit violata petiit à Rege quosdam Articulos Rege jubente jussit enim Rex postquam votis ipsius paruerant in giving the Subsidy ut ipsi ab eo peterent remedia quae vellent Et petierunt imprimis ut Statutum de manu mortua quod in praejudicium Sanctae Matris Ecclesiae fuit editum deleretur Cui quidem Articulo respondit Rex quod idem Statutum de Consilio Magnatum suorum so phrased by the Historian fuerat editum ordinatum absque eorum Consilio non erat revocandum but a more certain authority tells us that the Statute was made per Commune Concilium Regni or Parliament as appears by Rot. Claus. 7 E. 1. m. 5. dorso Rot. Pat. 10 E. 1. m. 13. and then the Commons were unquestionably an essential part and joined in the making the Statute The SIXTH ARGUMENT From the form of penning of 〈◊〉 of Parliament and expressions in Records in 49 51 54 H. 3. where it is pretended the Commâ—ns first began to be a part of the Legislative Power which agree with the phrases of Records of Acts of Parliament before that time THE King writes to the Bishop of London and to the rest of the Bishops of the Province of Canterbury that his heart was wounded 〈…〉 to dolore that the Earl of Gloucester and other Rebels had by crafty perswasions circumvented pro 〈…〉 r Prince Edward ad partem suam proditoriâ— aâ—â—axeâ—unt proprii contemptu Sacramenâ— contra formam de nostro ejusdem silii nostri Praelatorum Magnatum Communitatis Regni nostri unanimi assensu voluntate nuper London provisam The King per le conseil l'assentement le Rei de Alemain de Countes de Baruns del Commun de la terre pardoned and released the Earl of Gloucester and all his Company c. And the King per le Conseil Passentement le Rei de Alemain les Cuntes de Barons le Commun de la terre pardoned and released the Londoners totes maneres de
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
she sends Writs in the Kings name directed Archiepiscopis Episcopis Abbatibus Prioribus Comitibus Baronibus Militibus liberis Cominibus Civibus Burgensibus terrae s 〈…〉 Hiberniae telling them that mittimus fratrem Nicholaum de Sancto Neoto fratrem Hospiâ—â—i Sancti Johannis Jerusalem in Anglia ad parses Hiberniae ad exponendum vobis together with I. Fitz Geffery the Kings Justice the State of his Land of Vascony endangered by the hostile invasion of the King of Castile qui nullo jure sed potentia sua consisus terram nostram Vasconiae per ipsius fortitudinem à manibus nostris auferre à Dominio Regni Angliae segregare proponit And therefore universitatem vestram quanta possumus affectione rogantes quatenus nos jura nostra totaliter indefensa non deserentes nobis in tanto periculo quantumcunque poteritis de Gente pecunia subveniatis which would turn to their everlasting honour concluding his nostris angustiis taliter compatientes quod nos baeredes nostri vobis haeredibus vestris sumus non immerito obligati Teste Regina R. Comite Cornubiae apud Windesor 17 o Die Februarii per Reginam The other Writ somewhat varies being a Commission touching the Chief Justice Fitz Geffery to be as an Assistant or Co-commissioner with Father Nicholas to hold the Parliament to declare to them the State of Gascony pericula nobis imminentia ad tractandum vobiscum super auxilio nobis faciendo against the King of Castile desiring they would give Faith to what the Chief Justice should say to them thereupon Rot. Pat. 5 E. 1. m. 13. we read Rex Archiepiscopis Episcopis Abbatibus Prioribus Comitibus Baronibus Militibus omnibus aliis Anglicis de terra Hiberniae c. vobis mandamus quod ad certos dies quos ad hoc provideritis videlicet citra Festum Nativitatis beatae Mariae Virginis in aliquibus locis opportunis conveniatis diligentem tractatum inter vos habeatis utrum fuerit praejudicio vestri libertatum consuetudinum vestrarum that the meer Irish should use and enjoy the same Laws and Customs in common as the English there and to send their Judgment and Counsel under the Seal of the Justice of Ireland And in the twentieth Year of this King Magnates probi homines Terrae Hiberniae quint amdecimam partem de bonis catallis suis concesserunt gratiose to the King which certainly was done in the Generale Concilium or Parliament and that the general phrase probi homines did include and comprehend the Citizens and Burgesses to be part of that General Council for Rot. Claus. 7 H. 3. m. 7. dorso the Citizens of Dublin are called Probi homines nostri Dublyn From hence may be observed 1. That by the Patent Rolls of 38 H. 3. the Citizens and Burgesses were summoned to meet at the great Council or Parliament as well as the Prelates Earls Barons Knights and Free-holders and equally desired to give the King a Subsidy of men and money 2. That though in the Writ of E. 1. the Citizens and Burgesses are not mentioned eo nomine the phrases of directions in Writs being in those Ages very various sometimes more general and sometimes more particular yet the words omnibus aliis Anglicis after Baronibus Militibus must comprehend the Citizens and Burgesses who were to meet and diligently to treat with the Archbishops Bishops Abbots Priors Earls Barons and Knights and Freeholders whether it would be in prejudice of their Liberties and Customs if the meer Irish should enjoy the same Laws and Customs as they of the English extraction did and they were to join in giving their judgment and counsel with the rest of the Parliament And reason it self speaks it since the admission of the meer Irish into equal priviledges and rights with themselves in their Cities and Towns would be of so great a consequence to them for upon the Kings granting by Charters to several Irish Families the benefit of the English Laws great disputes arose so that Rot. Claus. 10 E. 2. m. 28. intus upon a Petition to the King he granted that semel in anno teneâ—tur Parliamentum to redress their grievances touching the Irish and English Laws and so the word Parliamentum ascertains what those Councils were in the Patent Rolls of 38 H. 3. and 5 E. 1. before-mentioned And now I will close my Arguments declaring under the good favour of so eminently learned Authors that their resolves and opinions which they have published to the World that the inception and original Election of Knights Citizens and Burgesses or the admission of the Commons of England as now phrased into Parliament by Rebellion and Treason Anno 49 H. 3. are not at all satisfactory and convincing in my judgment unless they give more certain and greater testimonials than yet I have met with and answer these few Records against their so severe Position A Position believe me that like a tempestuous Whirlwind not only rends off and dismembers an essential branch but shakes the very Root of the right and honour of our English Parliament and equally wounds both Lords and Commons because these learned Authors themselves do agree that there is not yet discovered any formal Summons of the great Lords no more than of the Commons to any Parliament before the said 49 H. 3. And here I must beg the favour of the Reader of adding a supplemental Argument which at first I confess was not intended and it is this If in the General Councils or in our present Dialect Parliaments for instance 1. Of France 2. Spain 3. Portugal 4. Denmark 5. Sweden and 6. Scotland the Cities and great Towns or Boroughs have from time immemorable both de jure and de facto had their Delegates or Representatives Upon what authority or reason can it be believed that so universal a Northern Custom or Law did not obtain and was never practised in England before 49 H. 3 1. FOR France we find their Conventus ordinum or L'assemblie des Estates consisted de Sacerdotio Nobilitate plebe of the Clergy Nobility and Commons this is evident by the Parliament Roll 9 H. 5. which takes notice of the peace made between England and France that the same was confirmed in France per tres Status regni viz. Praelatorum Cleri necnon Procerum Nobilium ac etiam Civium Burgensium Civitatum Villarum Communitatum dicti Regni Francorum ipsi tres Status eandem pacem omnia singula contenta in eadem APPROBARUNT LAUDARUNT ACCEPTARUNT AUCTORIZARUNT It seems by this that the French Kings were not so despotical and absolute by the fundamental Laws of that Kingdom as their Successors have by acts of power since made themselves 2. In Spain their Curia or Cortes del Reyno is compounded as Dr. Heylin cites out of the
Freeholders of England licet nonnunquam diversis variis appellationibus expressi inclusi in which those qui de Rege tenuerunt in capite or Barones Regii or Regis to difference them from the Barones Regni were comprehended were à Crepusculo temporis a constituent and essential part also although by Historians and Records they are often mentioned by and included in titles which in late times import more honour and are now of an higher acceptation and had not the name of Commons fixed or generally stamped upon them as in after Ages Sed haec obiter 1. As to the word Communes or Communitas I have in my enquiries observed it to be used in six senses 1. To comprehend the whole Commune Concilium Regni or Parliament A le commune Dangleterre Here Commune is taken for people so as tout le Commune is here taken for all the people and this is proved by the sense of the words for Magna Charta was not granted to the Commons of the Realm but generally to all the Subjects of the Realm viz. to those of the Clergy and to those of the Nobility and to the Commons also And that Commune in this place signifieth people it is proved by the preamble for there the great Charter and the Charter of the Forest are rehearsed to be granted by King H. 3. to his people and here they are said to be granted A le Commune and see before 25 E. 1. Confirm Chart. cap. 1. cap. 6. for this word Commune and Comminaltie so as A le Commune here signifieth not to the Commons of the Realm but to the people of the whole Realm and herewith agree our Books for that a common nusance which concerns le commune on le comminaltie le suite serra done au Roi where commune and comminaltie include all the Kings Subjects 2. To comprehend the Communitas Praelatorum Baronum 3. To comprehend the generality of all that came to Parliament after the particular enumeration of the Orders of the great Lords viz. Archiepiscopi Episcopi Abbates Priores Comites Barones The Statute of Westm. 1. made 3 E. 1. eleven years after 49 H. 3. saith per l'assentements des Archievesques Evesques Abbes Priors Counts Barons tout le Comminalty de la terre illonques summones The Statute de asportatis Religiosorum 35 E. 1. though made Anno 34 o saith That Dominus Rex post deliberationem plenariam tractatum cum Comitibus Baronibus aliis Nobilibus Communitatibus Regni sui habitum in praemissis de consensu eorum unanimi concordi ordained That it should be observed but upon the producing the Roll in the Parliament 17 E. 3. it is said That the Petition for the Statute was per Countes Barones Communes du Royalme and so under the word Communes the alii Nobiles are included 4. The Communitas Comitatuum Regni or Universality of the Counties of the Kingdom represented by the Magnates Chivalers or Grandz of the Counties of which appellations I shall give some few instances Inter communia Brevia de Termino Sanctae Trin. S. Mich. an o 34 o E. 1. penes Rememoratorem Domini Thes. in Scaccario The Milites Comitatuum and Barones Quinque Portuum are called Magnates Rot. Claus. 3 E. 2. m. 16. dorso Inhibitio ne qui Magnates viz. Comes Baro Miles seu aliqua alia Notabilis persona transeat ad partes transmarinas Ex libro Statutorum Impress lingua Gallica penes meipsum 15 E. 3. Cap. 4. Rastalls Stat. pag. 85. Item que les Prelats Countz Barons Chivalers autres Grandes de chescun paiis Statutum de servientibus 25 E. 3. per assent de les ditz Prelatz Countes Barones autres Graundes de la dite Communalte illonques assemblez MS. penes meipsum Stat. 27 E. 3. Statutum Stapulae Grantz des Counties 5. Applied to the Communities or Societies of the Cities and Boroughs Rot. de Superioritate Regis Angliae in Regno Scotiae Anno 19 E. 1. Omnes singuli tam Episcopi alii Ecclesiarum Praelati quam Comites Barones Magnates Proceres Civitatum Burgorum Communitates Rot. Parl. 17 E. 3. n. 8. Chivaliers des Countees Communes Rastall's Stat. 27 E. 3. fol. 102. Statute Staple whereas good deliberation had with the Prelats Dukes Earls Barons and Grandes des Countees de chescun Countee un pur tout le Countee and of the Commons of the Cities and Boroughs of our Realm of England 6. To the Commune or generality of the body of the Clergie in Parliament Monstre la Commune de la Clergie per la ou diverses Abbes Priores Esglises Cathedrales Collegiates autres gentz de Seinte Esglise ount diverses rentz Observation II. 2. The several Denominations by which our antient General or Common Council or Parliaments were expressed IF any man will be at the expence of so great a charge and trouble as to compare the various lections of Historians and Records together and the manner and phrase of words and speeches proper to particular ages and times he may satisfie himself what those Councils were and their constituent parts whom the antient Historians mean when they say Convocati or Congregati fuerunt Nobiles Angliae Omnes Regni Nobiles Nobilitas totius Regni Tota Nobilitas Angliae Totius Angliae Nobilitas Magnates Angliae Totius Regni Magnates Proceres Regni Proceres fideles Regni Universitas totius Angliae Nobilium Universitas Regni Barones Angliae Terrae or Regni Universitas Baronagii or Barnagii Angliae Baronagium or Barnagium Regni or Angliae Regni totalis universitas Pontifices Principes Anglicani Primordes Magnates Regni Principes Regni Praesules Principes Regni Optimates totius Regni or Angliae Primates Regni Majores Regni Majores Angliae Assisa Regni Discretio totius Regni Generale Placitum Clerus Populus Communitas Regni Generale Concilium Regni Concilium Regni And such like expressions and phrases varying in several Ages till at last they fixed on the word Parliamentum To demonstrate all which will require a longer discourse than I here intend however having before touched upon the Parliaments of 17 Johannis and 37 H. 3. I will give instances how they have been named in Records and Histories Anno 17 o Regis Johannis 1. Archiepiscopus C 〈…〉 Episcopi Barones Magnates 2. Generale Concitium 3. Barones liberi homines totius Regni 4. Barones liberi homines Dominii nostri 5. Magnates 6. Fuerunt autem quasi ex parte Regis Stephanus Cantuariensis H. Dublinensis Archiepiscopi c. illos quoque qui ex parte Baronum affuerunt qui innumerabiles fuere non est necesse numerare cum tota Angliae Nobilitas in unum collecta quasi sub numero non cadebat
7. Barones 8. Parliamentum 9. Barones Angliae 10. Baronagium Angliae 11. Enprimes est accorde assentu q' le franchise de seinte Esglise la grand Chartre la Chartre de la Forest les autres Statutes faitz per nostre dit Seignour le Roy ses Progenitors Piers la Commune de sa terre Anno 37 o H. 3. 1. Tota Nobilitas Angliae 2. Parliamentum 3. Archiepiscopi Episcopi Abbates Priores Comites Barones Milites alii Magnates Regni Angliae 4. Magnates Communitas Populi 5. Anno 1253. 37 H. 3. Hoc anno H. Rex Angliae ad instantiam Praelatorum Comitum Baronum Cartas duas eis concessit unam de libertatibus quae Magna Charta dicitur alia quae dicitur de Foresta pro qua concessione Communitas Angliae concessit Regi quintam decimam partem omnium bonorum suorum mobilium per totam Angliam Baronagium In the Parliament at Oxford 42 H. 3. Parliamento autem incipiente solidabatur Magnum Propositum Consilium immutabile exigendo constantissime ut Dominus Rex Cartam Libertatum Angliae quam Johannes Rex pater suis Anglis confecit confectam concessit quamque idem Johannes tenere juravit fideliter teneat conservet quamque idem Rex Henricus multoties concesserat tenere juraverat ejusque infractores ab omnibus Angliae Episcopis in praesentia sua totius Baronagii horribiliter fecit excommunicari ipse unus fuerat excommunicantium So as the Excommunication here meant being that of 37 H. 3. then made in the presence of the King Great men and Communitatis Populi is here said to be done in praesentia totius Baronagii Angliae And for the Honour of Magna Charta I will conclude this head with an Act of Parliament That Valiant and great Prince E. 4. after the overthrow of his Enemies and peaceful possession of the Crown assisted with the Judges of England Archbishops Bishops Abbots Priors his Dukes Earls Viscounts and Barons with the great men or Knights of the Counties and Commons in full Parliament hath left this recorded to Posterity They call this great Charter the Laudable Statute of Magna Charta which Statute was made for the great wealth of this Land upon which Magna Charta the great Sentence and Apostolique Curse by a great number of Bishops was pronounced against the breakers of the same and the same Sentence is four times in the year openly declared according to the Law of Holy Church and in affirmance of the said Statute of the said great Charter divers Statutes have been made and ordained And great reason certainly they had to put so high a value on that so famous Charter since the substantial part of the Laws thereof were no less than the great results decrees and judgments ordained by the prudence and justice of the Brittish Saxon and Danish Dynasties founded upon two grand and principal Bases or Pillars Liberty and Property which like those two brasen ones called Boaz and Jachin supporting the Temple of Solomon upheld the tottering Frame and Fabrick of our antient Government though often by evil men designed to be overthrown A Charter empta redempta purchased and redeemed with vast treasure of the Nation and the effusion of a Sea of Christian blood A Law published and established with fearful execrations and terrible Curses against the infringers and breakers thereof and all done with that religious solemnity and profound Ceremony as it may seem inferior only to that of the Commandments of Almighty God given to the Jewish Nation All great Ministers of State and Justice were at their entrance into their Offices solemnly to swear the observation thereof and great reason there was for the making of this Law both for the preservation of the King and also the Kingdom for that Parliament well knew the woful confusions in the Reign of Edward the Second who being seduced by his two Minions the Spencers for want of observing the good old Laws and Customs of England cut off the head of Thomas Earl of Lancaster his Uncle that being the first act of shedding the sacred Royal blood by colour of Law I ever met withal in History they usurped Royal Power they sent the Queen and Prince afterwards great Edward the Third beyond Sea and prevailed with E. 2. to declare the Queen and Prince Traytors They Monopolized the Kings Eyes Ears and his whole Understanding so that the King nothing did or would do but what they did counsel him were it never so great wrong and if any had the courage to complain against them or so much as fetch a loyal sigh or lament the hard fate of the King then imposed upon by those Favourites they were branded with arraigning the Government striking at the foundation of State and being guilty of Treason and what not The consequences of whose unhappy Counsels and Policies are too well known in History to have been the ruine both of the King and themselves The Priests and Confessors were strictly commanded to frame and direct the Consciences of the people to the observation and obedience of the Great Charter and they did so not like the Sibthorps and Manwarings of later times who by their Flatteries of Prerogative for their own promotion seek to ruine the Subjects property Observation III. The various acceptation of the word Baro and that under the phrase of Baronagium Angliae both Lords and Commons were comprehended AS to the word Baro it was not much more in use before William I. obtained the English Diadem that I can find than the word Communes Baro Britanni pro suo non agnoscunt in Anglo-Saxonic is legibus nusquam comparet nec in Alfrici Glossario Saxonico inter dignitatum vocabula habetur For the English Saxons called those in their own Language â—alâ—epmen which in Latine were named Comites and the Danes Earls but of so extensive an import in its signification as we read of Aldermani Regis Aldermani Comitatus Civitatis Burgi Castelli Hundredi sive Wapentachii novem decimorum so according to the strict word they had whole Regiments of Earls The greatest title of which seldom if at all descended hereditarily till the Confessors time and after Will I. became King the word â—alâ—epman began to change and vary its signification and in room of Aldermani Regis we find Barones Regis for Aldermani Comitatus Barones Comitatus for Aldermani Civitatis Barones Civitatis for Aldermani Burgorum Barones Burgorum for Aldermani Castellorum Barones Castellorum for Aldermani Hundredorum Barones Hundredorum sive Wapentachiorum Sir Henry Spelman saith that simplices villarum Maneriorum Domini de quocunque tenentes qui sacham socham habent were antiently called Barones And all Freeholders hoc est tam in Soccagio quam per servitium militare had the Title of Barones
completa Hubertus de Burgo Domini Regis Justiciarius exparte ejusdem Regis prâ—pojuit coram Archiepiscopis 〈◊〉 Comitibus Baronibus aliis Universis 〈◊〉 injurias quâ— Regi illata fâ—â—rani in pâ—rtibus us trans 〈…〉 is Whereby the King and many Eaâ—ls and Barons were diâ—â—nherited cum multi sunt in causa multorum subventio erit necessaria petit ergo ab omnibus Consilium pariter auxilium quibus Corona Angliae dignitates amissas ac jura posset pristina revocaâ—e Ad hoc quoque plene pâ—rficiendum Regi suffâ—cere credidit si ea quinia decima pars omnium rerum mobilium totius Regni Angliae tam a personis Ecclesiasticis quam a Laicis donaretur To which it was answered Habita deliberatione quod Regis petitionibus gratanter adquiescereni si illis diu petitas libertates concedere voluisset which the King condescended unto And Chartis protinus conscriptis Regis sigillo munitis sic soluto Concilio The Charters I shall pass over only with this former Observation that I conceive those that gave the Subsidy were the members of that Parliament and who they were will appear by the Inspeximus of the Great Charter and the Charter of the Forest inrolled in the Statute Roll 25 E. 1. viz. Pro hac autem donatione concessione libertatum istarum aliarum libertatum contentarum in Charta nostra de libertatibus Forestae Archiepiscopi Episcopi Abbates Priores Comites Barones Milites libere tenentes omnes de Regno dederunt nobis quintamdecimam partem omnium mobilium suorum Concessimus etiam eisdem pro nobis haeredibus nostris quod nec nos nechaeredes nostri aliquid perquiremus i. e. a Papa per quod libertates in hac Charta consentae infringantur vel infirmentur Et si ab aliquo centra hoc aliquid perquisitum suerit nihil Esglise as Countes Barons a tout la Communante de la terre que mes nul besoigne tien manere des aides mises ne prises de nostre Roiaume ne prendromus forsque per Commune assent de tout le Roiaume a Commune profit de mesme le Roiaume Teste 10 Octobris To deny therefore that the Knights and Freeholders de Regno of England were a constituent part of the Commune Concilium or Parliament in 2 9 H. 3. but were represented by the Tenants in Capite A man may with equal Reasons and as strong Authorities argue and affirm that though the Records plainly declare the Enumeratio partium of those great Councels and the Comites Barones to be one part then present and that they gave a Subsidy concurrent with the other parts yet really 1. They were not there nor joined in the Tax but were represented by the Milites and libere tenentes de Regno 2dly Though the Comites Barones Milites libere Tenentes de Regno are expresly and particularly mentioned in these grand Charters yet in truth they were not present at those great Councils but their Votes and Power were included and they represented in and by omnes Archiepiscopi Episcopi Abbates Priores de Regno though the greater number of the two latter held not of the King in Capite who made Laws and gave Taxes exclusis or omissis Comitibus Baronibus Militibus libere tenentibus de Regno Or 3dly Notwithstanding the naming of the Prelates of the Church yet their Power Vote and Authority was transferred and made over to the Earls Barons Knights and Freeholders of the Kingdom and their appearance there was not Personal but by Representation which no man certainly can believe I shall close up this Point with a memorable Record which I happily found in the Exchequer de Anno 17 E. 3. The Prior of Coventry was attached to answer to the King de servitio octo seodorum Militum per ipsum Priorem Predecessores suos Regi Progenitoribus suis ab Anno 29. Domini Regis H. proavi ipsius Regis nune substracto concelato The Prior appears per Henricum de Stretford whereupon the Barons Order a search of the Rolls and Memoranda of the Exchequer and thereupon it was found in the Roll of 29 H. 3. sub Titulo de Auxilio ad primogenitam filiam Regis maritandam That the Prior stood charged with Ten pounds for ten Knights sees and in the great Roll 32. of the King Titulato Auxilium Episcoporum Aâ—batum Prâ—orum conâ—essam ad sororem Regis maritandam Frederiâ—o Imperatori the Prior stood charged de viginti marcis c. To this the Prior pleads Quod ipse Predecessores sui tenuerunt omnia terras tenementa sua per servitium duorum seodorum Militum â—antum quod Dominus Rex seu Progen 〈…〉 〈◊〉 de aliquibus aliis serâ—itiis per 〈◊〉 〈◊〉 〈◊〉 seu Predecessores suos nun 〈…〉 〈◊〉 〈◊〉 Per 〈◊〉 〈◊〉 seu serviciâ—◠〈◊〉 〈◊〉 〈◊〉 factum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 per Memoranda hujus Scaccarii 〈◊〉 〈◊〉 inde serutinium c. 〈◊〉 quoad â—oc quod compertum est â—ic in Rotulis c. Quod tempore dicti Râ—â—â—s Henricâ— Tâ—râ—â—â— computatum fuit de 〈◊〉 〈◊〉 〈◊〉 de auxiliis eidem Regâ— Henrico ad â—ilium suum â—ilitem faciendum sororem suam maritandam conc 〈…〉 Hoc â—i non pr 〈…〉 in 〈◊〉 parte Diâ—it enim quod Auâ—ilia illa non 〈◊〉 〈◊〉 〈◊〉 pâ—ssunt â—sse 〈◊〉 〈◊〉 〈◊〉 subsidia per 〈◊〉 Communitatem Regni spontanea mera voluntate Regi concessa tam de teuentibus alio 〈…〉 quam de tenentibus de Domino Rege in Capite levanda quo preteâ—tu dictus Compotus de auxiliis praedictis fuit tam pro feodis tenentium tune Prioris loci praedicti quam pro feodis ipsius Prioris propriis quod idem Prior dicit posse liquere Curiae per Certificationem tune Prioris loci praedicti tune Baronibus de Sâ—â—â—cario From this Record I shall make these Observations 1. That the Crown could not de juâ—â— require any serviâ—ia from the Subject but those that were deâ—ita omnes qui de Rege tenent per servicium militare and none else Regi faciant anxilium ad primogenitam siliam maritandam saith the King Rot. Pat. 29 H. 3. m. 7. dorso and so said the Law long before Sunt eâ—iam quaedam Communes praestationes quâ— servitia non dicuntur nec de con 〈…〉 tudine veniunt c. sicut sunt Hidagia Corragia Carvagia alia plura de necessitate ex consensu Communi totius Regni introducta quae ad Dominum â—â—â—di non pertinent 2. There is a difference appears between Servitia and Auxilia The Law allows therefore the Priors plea when he says That those extraordinary Aides were not Servitia but Auxilia granted to the Crown per Magnates Communitatem Regni spontanea mera voluntate or
as Bracton before cited Consensâ— communi totius Regni 3. Those Aides were given tam de tenentibus aliorum quam de tenentibus de Domino Rege in Capite levanda quo praetexta dictus Compotus de Auxiliis praedictis were as well for the Fees of the Tenants of the then Prior as for the Fees of the Prior himself which the Prior said would clearly appear to the Court by the Certificate of the Prior his Prodecâ—ssor in the time of H. 3. made to the Barons of the Exchequer so that the Tenants of the Prior did grant an Aid as well as the Prior himself and that in Parliament for as I have observed before Rot. Claus. 32 H. 3. m. 13. dorâ—o there was a Parliament then held 4. That in the Reign of H. 3. and preceding times when the Knights and Freeholders who held not of the King but other Lords did in the Commune Concilium or Parliament graâ—◠〈◊〉 Auâ—â—lium or Aid to the Crown the great Lord or Baron of the Fee of who 〈…〉 the Freeholders held was 〈◊〉 in the Exchequer to answer for 〈…〉 thereof under the title of his 〈◊〉 as the Bishop of every 〈◊〉 〈◊〉 till Queen Elizabeth's time was by Law chargeable for the coll 〈…〉 of 〈◊〉 granted by the Clergy within his Dâ—ocess yet certainly as the Bishop 〈◊〉 〈◊〉 any power to give for or tax his 〈◊〉 no more could or did any great Lord of the Fâ—â—â—ither jure t 〈…〉 or 〈◊〉 tâ—tionis charge or give away the 〈◊〉 of his free T 〈…〉 who were independent in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 solummodo 〈◊〉 this P 〈…〉 not well observed and understood 〈◊〉 late Authors has caused the 〈◊〉 about the T 〈…〉 〈◊〉 representing the 〈◊〉 in Parliament 5. 〈…〉 held of the King in Capite yet very considerable in number and all the Citizens and Burgesses should till 49 H. 3. either be totally excluded from being any part of the Generale Concilium Regni or Parliament or else by a Law of which there is not the least footsteps in History or Law were for so many Ages to be represented by the Tenants in Capite only in Parliament the transcendent Power of which Council in Conjunction with the King as Head thereof Sir Thomas Smith that great and learned man who was Secretary and Privy-Councellor to our famous Queen an old Parliament-man when he comes to write of the Parliament and its largeness of Power says thus In Comitiis Parliamentariis posita est omnis Augustae absolutae que potestatis vis quippe quemadmodum Robur virtus Angliae dieuntur in Acie residere Parliamentaria Comitia veteres leges jubent esse irritas novas indueunt praesentibus juxta ac futuris modum constituunt jura posseâ—siones hominum privatorum commutant spurios Natalibus restituunt Cultum divinum sanctioribus corroborant pondera mensuras variant incerti juris contreverâ—â—as dirimunt ubi nihil lege cautum fuit censum agunt Capitationes vectigalia indicunt delictorum gratiam faciunt afflictas Majorum sceleribus perditas familias erigunt vitae nâ—â—isque potestatem in cos obtinent quos ad hujusmodi disquisitiones Princeps advocaverat atque ut concludam breviter quiâ—quid in Centuriatis Comitiis aut in Tribunitiis Populus Romanus efficere potuisset 〈◊〉 omne in Comitiis Anglicanis tanquam in Coetu Principem populumque represent ante commode transigitur Interesse enim in illo conventu omnes intelligimur â—ujuâ—cunque amplitudinis status aut dignitatis Princepsve aut Plebs fuerit sive per se ipsum hoc fiat five per procuratorem nam omnibus peraeque gratum esse oportet quâ—â—quid ex Senatusconsulto Parliamentario profectum est 6. It is observable that the Prescription of Progenitores Regis in the Record of the Prior of Coventry tempore E. 3. did expresly extend to the Reign of H. 3. his great Grandfather and higher too so that I had good authority and warrant to say before that when the Burgesses of St. Albans in the Parliament 8 E. 2. affirmed That they and their Predecessors sicuâ— caeteri Burgenses de Regno as the rest of the Burgesses of the Kingdom had totis retroactis temporibus in all times past in the time of F. 1. Pregenitorum suorum and of His Progenitors sent Two Burgesses to every Parliament they had as well as other Boroughs of England sent Burgesses to the Generale Corailium or Parliament before mentioned in the 17th year of King John Grandfather to E. 1. at least and so by clear evidence before 49 H. 3. From the aforesaid Authorities and Reasons we may with good consequence conclude 1. That the People or Commons of England from the time of the Norman Conquest till 49 H. 3. were not represented in the Commune Concilium Regni or Parliamâ—nt by such only as held of the King in Capâ—â—e 2. And that the Commons or People 〈◊〉 〈◊〉 â—â—â—in to be represented by Knights Citizens Burgesses and Barons of the Cinque Ports in the said 40 H. 3. And now I shall subjoin some material Records relating to my former Discourâ—â— Inter Communia de Term. Trin. Anno 7 E. 2. Adhuc Recorda PJn nomine Poliarcâ—t Jesu Christi salvatoâ—is mundi totiusque Creature Creatoris cujus Divino Dominatui quique donatores debito servitio subnixe deserviunt cujus etiam omnipotentatui universi potentatus obsecundari examussim preproperant quia bonitas ejus bon 〈…〉 atis est incomprehensibilis miseratio inter minabilis dapsilitas bomtatis ineffabilis longanimitas quoque super pravorum nequitias quantitatis prosixitate cujusâ—ibet longior qui coâ—idiaâ—â—s admonitionibus religiosam conversationem duccntes monet ut pie Seâ—tando justitiae culturam non eam deseren dolinquant quin potius perseverabilt instantia in ejus cultura ut permaneant patâ—rno affectu hortatux qui nihilomâ—nus eadem affectione mandat peccatoâ—ibus ut resipiscant a suis iniquitatibus convertentes quia eorum execratut mortem ejus amoris stimulo fide suffultus cujus largifâ—ua miseratione Ego Cnut Rex totius Albionis Insule aliarum nationum plurimarum in Cathedra Regali promotus cum Consilio decreto Archiepiscoporum Episcoporum Abbatum Comitum aliorumque omnium fidelium eligi sanciend Atque perpeti stabilimento ab omnibus confirmandum ut Monasterium quod Biadricesworth Nuncupatur sit per omne evum Monachorum gregibus deputatum ad inhabitandum ab omni Dominatione omnium Episcoporum Comitatus illius funditus liberum ut in eo Domino servientes Monachi sine ulla inquietudine pro statu Regni Domini prevaleant precari Placuit etiam mihi hanc optionis electionem roborare privilegio isto in quo indere prccepi libertatis donum quod jam olim Edmundus Rex occidentalium SaxonnÌ„ largitus est suo equivoco pro nanciscenda ejus gratia mercede aeterna scilicet Edmundo Regi Martiri quod bone