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
made Ecclesiastical Laws concerning Marriages c. and did other things ad concordiam publicam promovendam per Commune Concilium assensum omnium Episcoporum Principum Procerum Comitum omnium sapientum seniorum populorum totius Regni 3. And we read elsewhere that the grand League and Union between the Brittons Saxons and Picts was concluded and confirmed Per Commune Concilium assensum omnium Episcoporum Procerum Comitum omnium Sapientum seniorum populorum per praeceptum Regis Inae 4. Anno Dom. 905. Plegmundus Cantuar. Archiepiscopus unacum Rege magnifico cognominato Edwardo Seniore Concilium magnum Episcoporum Abbatum Fidelium Procerum Populorum in Provincia Gewisorum in illa parte Angliae quae in plaga australi sita est Fluminis Thamesis convocant c. unde salubriter constitutum est in hac Synodo ut pro duobus Episcopis quorum unus Wintoniae alter Sireburniae sedem habuit quinque crearentur antistites ne grex Domini pastorum cura orbatus luporum lanienae voracitati subjicerentur and there were several other Laws then made William of Malmsbury expresseth the Saxon Wittena Gemott thus Generalis Senatus Populi Conventus Edictum Sir Henry Spelman Convenere Regni Principes tam Episcopi quam Magistratus liberique homines consulitur de communi salute de pace bello de utilitate publica promovenda Camden thus Quod Saxones olim Wittena Gemot nos Parliamentum Pananglicum recte dici possit summamque sacrosanctam authoritatem habet in Legibus ferendis confirmandis antiquandis interpretandis in omnibus quae ad Reipublicae salutem spectant And so we find Edward the Confessor reforming and confirming the antient Saxon Laws and making new ones and that done à Rege Baronibus Populo as particularly in the Law de Apibus how Tythes ought to be paid of them and other things Hence it is apparent and past all contradiction that the Commons in those Ages were an essential part of the Legislative power in making and ordaining Laws by which themselves and their posterity were to be governed and that the Law was then the golden metwand and rule which measured out and allowed the Prerogative of the Prince and Liberty of the Subject and when obstructed or denied to either made the Kingdom deformed and leprous That great Monarch Aethelstan in his Prologue to his Laws made per Commune Concilium Regni thus declared and admitted Ea mihi vos tantummodo comparatis velim quae juste ac legitime parare possitis Neque enim mihi ad vitae usum quicquam injuste acquiri cupiverim Etenim cum ea ego vobis lege vestra omnia benigne largitus sim ut mea mihi vos itidem concedatis I have past over the Danish Government because I do not find that there was any great mutation either of the Council or Laws of the English Nation It is true King Knute obtained the Diadem or Dominion of England but 't is as true he did not govern more Victoris as may evidently be proved 1. From the form of penning his Laws they being ordained and confirmed Cum consilio Decreto Archiepiscoporum Episcoporum Abbatum Comitum aliorumque omnium fidelium words of a large comprehension 2. From his general Law or Declaration of Right to the English thus delivered to us by a faithful Historian William of Malmesbury who lived near those times Obtestor praecipio meis Consiliariis quibus Regni Consilia credidi ne ullo modo aut propter meum timorem aut alicujus potentis personae favorem aliquam injustitiam amodò consentiant vel faciant pullulare in omni Regno meo Praecipio etiam omnibus Vicecomitibus Praepositis universis Regni mei sicut meam volunt habere amicitiam aut suam salutem ut nulli homini nec diviti vel pauperi vim injustam inferant sed omnibus tam Nobilibus quam ignobilibus sit fas justa lege potiundi à qua nec propter favorem Regium nec propter alicujus potentis personam nec propter mihi congerendam pecuniam ullo modo deviant quia nulla mihi necessitas est ut iniqua exactione pecunia mihi congeratur After which the Historian sayes Omnes enim leges ab antiquis Regibus maxime ab Antecessore suo Ethelredo latas sub interminatione Regiae mulctae perpetuis temporibus observari praecepit in quarum custodia etiam nunc tempore bonorum sub nomine Regis Edwardi juratur non quod ille statuerit sed quod observaverit 3. Under the Normans King William the First THough William the Conqueror got the Imperial Crown of England and introduced several Arbitrary Laws as new tenures c. yet did he never make such an absolute Conquest nor did the Kingdom receive so universal a change as our English modern Authors as it were by a general Consederacy without examination of truth have published to the World who father upon this revolution all the alterations which their conceits or fancies can imagine and suppose Thucydides saith Men receive the report of things though of their own Country if done before their time all alike from one as from another without any examination In like manner have those our Historians been mistaken by transcribing and patching out their Histories one from another so that in conclusion with their own additions or comments truth in many things is utterly lost 1. The word Conquestor or Conqueror did not in that Age import or signifie what our late Authors by flattery have since made it nor did it carry with it the enslaving of the Nation after that William had obtained the Victory against Harold there being no more in the Denomination of Conqueror than that after William had made claim to the Crown from King Edward the Confessor and Harold opposed him he was forced to get his right by Battel against King Harold and as to the word Conquestus or Conquest Mat. Paris writes Rex Angliae ex Conquestu dicitur tamen quod beatus Edwardus eo quod haerede caruit Regnum legavit Willielmo Bastardo Duci Normannorum Sir Henry Spelman in his Glossary sayes Willielmus primus Conquestor dicitur quia Angliam conquisivit i. e. acquisivit purchased non quod subegit And Sir John Skene Clerk of the Register Council and Rolls to King James in Scotland in his Book De verborum significatione pag. 39. writes Conquestus signifies Lands quhilk ony person acquiris and possessis privato jure vel singulari titulo vel donatione vel singulari aliquo contractu And therefore the learned Knight Sir Roger Twiâ—den who well understood the force of the word Conquestus in his Preface before that Kings Laws sayes Non existimo Willielmum primum de omnium Anglorum terris ad voluntatem suam pro libitu in
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
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 〈…〉
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
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
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
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
two Houses of Parliament and that the Knights Citizens and Burgesses did not sit with the Lords the Prelates having so great advantage of the Temporal Lords in their Votes were very unkind to the Crown they made not use of their over-ballance for the delivery of the King and Prince then said to be in Custody 3. Nor have I yet met with any reasons given why when the Government of the whole Kingdom was at this Parliament of 49 H. 3. to be setled after so long and bloody a War the Barons being then so victorious and numerous as our modern Authors say they would by their absence hazard and endanger the loss of all by entrusting the Prelates and Commons with the over-ballance Many remarkable observations might be raised upon this Record both as to the Lords and Commons but I will now pass to my eight Argument concluding this with M r Pryâ—â—s opinion how the Parliament Rolls before E. 3. came to be lost or destroyed I will use his own words That there are no Records at all in the Tower except some few antient Charters or Exemplifications of them antienter than the first year of King John all the rest from William the first his Reign till then except some few in the Exchequer not relating to Parliaments being utterly lost the first Parliament Rolls yet remaining are these 5 8 9 and 19 th of King E. 2. the Statute Roll of H. 3. E. 1. E. 2. containing some Statutes made in their Reigns a Parchment Book of some Pleas in Parliament during the Reigns of King E. 1. and 2. and a few Bundles of Petitions in the Parliaments of 6 E. 1. and 1 2 3 and 4 E. 3. none of which are here abridged viz. in the Abridgment by him published only I find in the Clause Patent Charter and Fine Rolls of King John H. 3. E. 1 and 2. some Writs of Summons and some memorials of Acts Ordinances made and Aids Subsidies Dismes Quindisms Customs granted in Parliaments held during their Reigns the Rolls whereof are perished and quite lost either through the negligence of the Record Keepers or the Injury Iniquity of the times during the Civil Wars between the King and Barons in the Reigns of King John and H. 3. and betwixt the two Houses of Lancaster and York for the Title of the Crown wherein it is very probable the prevailing King's parties by their Instruments imbezled suppressed such Parliamentary Records and Proceedings as made most against their Interests Power Prerogatives Titles or through the default of our Kings great Officers and Attornies who sending for the Parliament Rolls out of the Tower upon special occasions never returned them again for reasons best known to themselves by means whereof those Parliament Rolls being no where to be found their defects must be supplied only out of such fragments and memorials of them as are extant in our other Records and antient Historians especially in Matthew Paris Matthew Westm. William of Malmesbury Henry Arch-Deacon of Huntingdon Roger de Hoveden Simeon Dunelmensis The Chronicle of Brompton Radulphus de Diceto Ranulphus Cestrensis and Thomas of Walsingham who give us some accompts of their proceedings and transactions which else had been utterly buried in oblivion as well as their Rolls wherein they were at large Recorded as is evident by the Parliament Rolls yet extant The EIGHTH ARGUMENT From the various opinions of the learned men in and since H. 8. who never dreamed of any such origine nor was it ever heard of till of late IT would be tedious to set down the various and wandring opinions and reasons of our modern Authors in English touching the beginning of our Parliaments and constituent parts thereof especially of the Commons as now called and comprehended in the Knights Citizens and Burgesses in Parliament I will but instance in a few eminent Authors and leave the Croud behind The great Antiquary Mr. Lamberd holds that they were before the time of William the First and there are other learned men who give their assent to that as a great truth Mr. Prynn saith By all the ancient Presidents before the Conquest it is most apparent That all our Pristine Synods and Councils were nought else but Parliaments that our Kings Nobles Senators Aldermen Wisemen Knights and Commons were usually present and voting in them as Members and Judges Polydore Virgil Hollinshead Speed and Martin are of opinion that the Commons were first summoned at a Parliament at Salisbury An. 16 H. 1. Sir Walter Raleigh in his Treatise of the Prerogative of Parliaments thinks it was Anno 18 H. 1. My Lord Bacon in a Letter to the Duke of Buckingham asks Where were the Commons before H. 1. gave them authority to meet in Parliament Dr. Heylin finds another beginning and saith that H. 2. who was Duke of Anjou was the first Institutor of our High Court of Parliament which being an Anjovian he learned in France But I cannot find that any of those ever supposed the Commons were first introduced in Parliament 49 H. 3. by Rebellion Nor was this opinion entertained by any Author I can meet with Anno 1529. 21 H. 8. for in an answer of that great and excellent person Sir Thomas More Lord Chancellor of England in his supplication of Souls against the supplication of Beggers discoursing about King Johns making in the 14 th year of his Reign and three years before his granting Magna Charta the Realm Tributary to the Pope declares his Judgment without any doubt or hesitation and therein as I take it the universal tradition and belief of all learned men of that and precedent times That the Clergy and all the Lords and Commons of the Realm made the Parliament in the age of King John and that never could any King of England give away the Realm to the Pope or make the Land Tributary without their grant whose Book and so his opinion we find approved of and published by a grave and learned Judge of the Kingdom Mr. Justice Rastall and dedicated to Queen Mary her self An. 1557. not much above a Century ago The NINTH ARGUMENT From the comparison of the antient Generale Concilium or Parliament of Ireland instanced An. 38 H. 3. with ours in England wherein the Citizens and Burgesses were which was eleven years before the pretended beginning of the Commons here AS great a right and priviledge surely was and ought to be allowed to the English Subjects as was to the Irish before 49 H. 3. and if that be admitted and that their Commune Concilium or Parliament had its Platform from ours as I think will not be denied by any that have considered the Histories and Records touching that Land we shall find the two ensuing Records An. 38 H. 3. clearly evince that the Citizens and Burgesses were then a part of their great Council or Parliament That King being in partibus transmarinis and the Queen being left Regent
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
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
and in his species of Barones Comitatus saith Proceres nempe maneriorum Domini nec non libere quique tenentes Anglice Freeholders had that appellation Notandum autem est libere hos tenentes nec tam exiles olim fuisse nec tam vulgares ut hodie deprehenduntur The great Selden in his Notes upon Eadmerus upon the word Barones saith Vocabulum nempe alia notione usurpari quam vulgo neque eos duntaxat ut hodie significare quibus peculiaris ordinum Comitiis locus est And the learned Camden writes Verum Baro ex illis nominibus videatur quae tempus paulatim meliora mollior a reddidit nam longo post tempore non Milites sed qui liberi erant Domini Thani Saxonibus dicebantur Barones vocari coeperunt necdum magni honoris er at paulo autem postea meaning after the Normans coming eo honoris per venit ut nomine Baronagii Angliae omnes quodammodo Regni ordines continerentur The authority of these most learned Antiquaries is such That it would be a presumption in me to go about to add any thing I shall only say I have met with some Records that clearly prove their opinion and for illustration shall subjoin one Record more and so conclude this point Anno 29 H. 3. great complaint was made in Parliament against the Church of Rome's exactions here in England whereupon Anno 29 H. 3. Litterae missae Cardinalibus Romanae Ecclesiae apud Lugdunum à Baronibus Militibus universis Baronagii Regni Angliae per Rogerum Bigod Comitem Norff. Willielmum de Cantelupo Johannem filium Galfridi Radulphum filium Nicholai Philippum Basset Barones Procuratores Baronagii Angliae tunc temporis Innocentio Papa quarto celebrante Concilium ibi generale Anno gratiae 1245. Venerabilibus in Christo fratribus universis singulis dei gratia salutem Barones Milites universitas Baronagii Regni Angliae c. Electi sunt igitur writes Mat. Paris ad hoc nomine totius Universitatis Regni Angliae ad Concilium Lugdunense missi Comes Rogerus Bigod Johannes filius Galfridi Willielmus de Cantelupo Philippus Bassett Radulphus filius Nicholai Milites saith Mat. Westm. p. 321. l. 30. Magister Willielmus Powic Clericus Another Letter was sent per Magnates Universitatem Regni Angliae super extortionibus Curiae Romanae to the Pope himself who negotium posuit in suspenso The Ambassadors returning and a second Parliament being called at Westm. the Record goes on Articuli gravaminum oppressionum quibus Regnum Angliae oppressum fuit temporibus Henrici filii Regis Johannis per Curiam Romanam quae scilicet ostensa fuerint Cardinalibus Romanae Ecclesiae ....... Innocentio Papae quarto ore tenus per Procuratores praedicti Regni in generali Concilio apud Lugdunum quod gravamina dictus Papa procuratoribus dederit in praemissis ad revocanda quae scilicet gravamina non revocata postea Barones Milites Universitas Baronagii Angliae conquerentes ostenderunt praedicto Regi in Concilio habito apud Westm. in proxima Quadragesima sequenti post praedictum Concilium Whereupon by common advice it was agreed to send Ambassadors with second Letters of their grievances to the Pope at Rome directed thus Sanctissimo c. devoti silii sui Comes Cornubiae Richardus c. alii totius Regni Angliae Barones Proceres Magnates ac nobiles Portuum maris habitatores necnon Clerus populus universus salutem Matthew Paris calls this a Parlialâ—ament Convenientibus igitur ad Parliamentum totius Regni Magnatibus and mention is made of the first message in the Close Roll 29 H. 3. Rex Abbati de Sancto Edmundo salutem Cum pro oppressionibus innumerabilibus factis in Regno nostro per Ecclesiam Romanam ob quam Magnates nostri ad sedem Apostolicam appellarunt quosdam pro ipsis pro universitate Baronagii Angliae ad Concilium in brevi celebrandum ad appellationem suam prosequendam duxerunt destinandos And indeed Records and Histories will furnish us with several Precedents where succeeding Parliaments as well as these of H. 3. have sent Letters to the Pope when he attempted to invade the Rights of the Crown or Kingdom I will give two instances in the Reigns of the two famous Princes Edward the First and Edward the Third 1. Edward the First An. 29 of his Reign claimed Scotland as Rex superior Dominus the Pope as a Fiefe of the Roman Church the Pope backed by the French King Summons Edw. to appear before him in his Court at Rome and sends his Letters or Bulls to the Archbishop of Canterbury to serve them the Archbishop obeys the King tells him Verum quia consuetudo est Regni Angliae quod in negotiis contingentibus statum ejusdem Regni requiratur consilium omnium quos res tangit and shortly after Summons his Parliament at Lincoln in Octabis Sancti Hillarii to advise with his Parliament how to defend the rights of the Crown against the Papal Claim The Parliament thereupon send their Letter to the Pope subscribed and sealed by several of the principal men of the Parliament as the usage of that Age was telling him that sane convocato nuper per serenissimum Dominum nostrum Edwardum Dei gratia Regem Angliae Illustrem Parliamento apud Lincolniam Generali the King had caused the Popes Letter in medio or pleno Parliamento exhiberi ac seriose nobis fecit exponi unde habito tractatu deliberatione diligenti super contentis in litter is vestris memoratis communis concors unanimus omnium nostrum singulorum consensus fuit est erit inconcusse Deo propitio in futurum quod praefatus Dominus noster Rex super Juribus Regni Scotiae aut aliis suis temporalibus nullatenus respondeat judicialiter coram vobis nec Judicium subeat quoquo modo aut jura sua praedicta in dubium quaestionis deducat nec ad praesentiam vestram Procuratores aut nuncios ad hoc mittat praecipue cum praemissa cederent manifeste in exhaereditationem juris Coronae Regni Angliae Regiae Dignitatis ac subversionem status ejusdem Regni notoriam necnon in praejudicium libertatis consuetudinum legum paternarum ad quarum observationem defensionem ex debito praestiti Juramenti astringimur quae in manu tenebimus toto posse totisque viribus cum Dei auxilio defendemus Nec etiam permitt 〈…〉 s nec aliqualitâ—â— per 〈…〉 mus sicut non possumus nec debemus praemissa tam insolita indebita praejudicialia alias inaudita praelibatum Dominum nostrum Regem etiam si vellet facere seu modo quolibet attemptare Quocirca Sanctitati vestrae reverenter humiliter supplicamus quatenus eundem Dominum nostrum Regem