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
Regni totis reretroactis temporibus in the times of E. 1. and his Progenitours if so then in the time of King John Grandfather to E. 1. and so before H. 3. 1. THE Burgesses of St. Albans in their Petition to King E. 2. An o 8 o say that they sicut â—â—eteri Burgenses Regni ad Parliamentum Regis when it should happen to be summoned per duos Comburgenses suos venire debeant prout totis retroactis temporibus venire consueverunt tam tempore domini Ed. nuper regis Angliae patris regis as well in the time of E. 1. the Kings Father Progenitorum suorum as in the time of E. 2. semper ante instans Parliamentum and declared that the names of such Burgesses coming to Parliament were always inrolled in the Rolls of the Chancery notwithstanding all which the Sheriff of Hartford at the procuration and favour of the Abbot of St. Albans and his Council refused Burgenses praedictos praemunire seu nomina eorum retornare prout ad ipsum pertinuit c. and therefore they pray remedy Respons Scrutentur Rotuli c. de Cancellaria si temporibus Progenitorum Regis Burgenses praedicti solebant venire vel non tunc fiat eis super hoc justitia vocatis evocandis si necesse suerit I do not think there needs much enforcing this Record since the prescription of sending duos Comburgenses ad Parliamentum Regis sicut caeteri Burgenses Regni did is that they and their Predecessors were always accustomed to send two Burgesses to Parliament in all former Ages not only in the time of E. 1. but his Progenitors therefore in King Johns time his Grandfather at least and so before H. 3. And though the answer to the Petition which in that Age was given in Parliament per Concilium or all the Judges of England and others the Kings Learned Council say Scrutentur Rotuli si temporibus progenitorum Regis which may go to the whole Reign of King John as before Burgenses praedicti solebant venire vel non yet that grave and wise Council do not in the least scruple but clearly admit and confirm the general prescription that there were Boroughs that sent Burgesses to Parliament temporibus E. 1. Progenitorum suorum which goes higher than H. 3. his Father and it cannot in common reason be supposed much less believed that the Burgesses of S t Albans or the Lawyer or Pen-man of the Petition should dare to tell the King and Learned Council in the face of a Parliament a Novelty so great and ridiculous and that Recorded to Posterity by the Council that they and their Predecessors in the time of E. 1. and his Progenitors had sent two Burgesses to every Parliament when all the World then knew if the modern opinion be true that there was never any Election of any Burgesses to Parliament before the 49 H. 3. which was but 50. Years before 8 E. 2. and at the time of the Petition fresh in their own memories No surely the Burgesses of S t Albans did not ground their Petition of Right upon a general allegation or an affirmation in nubibus but the justice and certainty of their claim as they themselves very well knew so they prayed it might be examined and tried by uncontroulable Witnesses Records the Rolls of Chancery The Chancellor and the rest of the Council did no less know there were such Rolls and therefore order the search but if the Petition had been notoriously false and idle instead of recording it to future Ages they would with contempt and scorn have rejected it nor would the great Abbot of S t Albans his Council and the Sheriff of Hertford against whom the Petition was exhibited have been wanting in their own defence to have shewed and proved that this antient prescription was a meer Chimaera and fable no they all were well satisfied that the Borough had sent two Burgesses to every Parliament in the time of E. 1. and his Progenitors and therefore it was in vain to oppose or contradict their just and antient right according to their prescription all which appears clearly by this that both before the time of the Petition and ever since they have sent two Burgesses to every Parliament The SECOND ARGUMENT From Records An. 15 Johannis Regis wherein the Citizens and Burgesses not so numerous then as after and now together with the Earls Barons Magnates Angliae were to give Consilium Auxilium ad honorem Regis suum statum Regni who shortly after met at London Convocatum Parliamentum de toto Clero tota secta laicali and so within the express Prescription of the Borough of S. Albans I Am not ignorant that some have dated the origine of the Commons being a part of the Parliament from the Parliament of Runningmead 17 o Reg. Joh. It may therefore be worth our pains to observe this great Record following and to consider whether from thence may not be proved this Conclusion That 〈◊〉 great Cities and Boro 〈…〉 s of the â—ingdom not so 〈…〉 merous then as after and now in the 16 o of King John before the granting of his Magna Charta or 〈◊〉 confirming the antient Laws in his 17 th year at Runningmead did send their Proxies and Representatives to the Commune Concilium Regni or Parliament for it cannot be supposed in reason that every individual Citizen and Burgess could come no more than every Parson of a Parish to a Convocation or to a meeting of the whole Clergy of England The Record saith That the King being in partibus transmarinis writes Majori Baronibus London Majori probis hominibus Winton Northampt. Lincoln Ebor. Oxon. Glouc. Heref. Exon. Worcestr Cantebr Hunt Bristol Norwich And all the great Boroughs of the Demesnes of the King giving them account of his proceedings and successes in his War against the French and that the Pope had by his Letters released the Interdict under which the Kingdom then lay which the King had then sent to Peter Bishop of Winton Chief Justice of England and therefore desired that they would believe what the Bishop should speak to them that Consilium Auxilium vestrum ad honorem nostrum vestrum statum Regni nostri in melius communicandum efficaciter super hoc apponatis and that majori festinatione expediretur Teste apud Rupellam 6 o die Martii In the same manner he writ to William Earl Marshal and to all the Earls Barons Magnatibus Angliae c. Teste apud Rupellam 8 o die Martii In order therefore to our proof of a Parliament from these Records let us make two observations 1. Negative 2. Affirmative Though the Writ be general and mentions not any time or place for meeting or coming to Parliament or the great Council the King referring that I suppose to his Regent or Chief Justice here yet it cannot be
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
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
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 〈…〉