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
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
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
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 〈…〉