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england_n	henry_n	king_n	lord_n	23,977	5	4.2438	3	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A26173	Jus Anglorum ab antiquo, or, A confutation of an impotent libel against the government by king, lords, and commons under pretence of answering Mr. Petyt, and the author of Jani Anglorum facies nova : with a speech, according to the answerer's principles, made for the Parliament at Oxford.	Atwood, William, d. 1705?; Brady, Robert, 1627?-1700. Full and clear answer to a book.; Petyt, William, 1636-1707. Antient right of the Commons of England asserted.; Atwood, William, d. 1705? Jani Anglorum facies nova.	1681 (1681)	Wing A4175; ESTC R9859	138,988	352

●●eton to prove either that every ●s the same with a Burrough or else 〈◊〉 taken as different from a Bur●● and indeed here are Burgi 〈◊〉 they must be small Towns incor●●ed not holding in Chief ●●ttleton's Words from which I have ●eason to dissent are these Chescun 〈◊〉 est un Ville Against Jan. p. 7. mes nemy e converso ● he translates Every Burrough is a 〈◊〉 but not e converso Now if from ●e infers that every Town is a Bur●● his Argument is thus every Town ●●urrough because every Town is not ●●rough A man of the weakest parts ●ell us a thing is so because it is ●e is a wise man indeed that can ● it to be so because it is not so Well but 't is a Town incorpora●● and to strengthen his Argument produces Writs of Summons to Vills which if he argues at all sh● That he allows the free Customs more than Tenants in Capite to com● Parliament to be hereby provided under the words which I insist on But pray did Littleton explain ● self that none but Towns incorp● were Vills Oh! but it must be What Liberties What free Customs common ordinary Towns and Parishe● enjoy Against Jan. Anglorum c. p. 7. What municipal Laws Wha● vate Laws and Priviledges Alas I have no Laws whereby they enj●● any Lands If others had Land they were free from the Feudal Law for the Laws were bro● in by and exacted upon only the ● mans themselves who all held in 〈◊〉 by Knights Service too Against Mr. Petyt p. 43. and 〈◊〉 could not have had so much as p●● Customs or By Laws neither ha● other Incorporated Towns any for are not within the Charter of Libe● which was to Tenants in Capite What says Fortescue to all this can he answer 't when he make● the Genus to all Divisions under Hundred So that either a Bu●● corporated Town other Town and a ●●arish Vid. the Franck-pledge in every Vill. Vid. etiam Jan. Angl. or Village may be a Vill mes ne●e converso But is it possible that ●ortescue can gain Credit when such an ●●thor says the contrary However ●●'s hear him for methinks the man ●●oks as if he had some weight in him Hundreds are divided into Villages Fortescue de laudibus Legum Angl p. 52● ●●der which Appellation are contained ●●rroughs and by Burroughs must be ●●ant such as held in Capite Towns in●●porated without such Tenure or not ●orporated or else these were no Divi●●ns within an Hundred And to be ●e an ordinary Village is a Village here Burrough is made the Genus to all ●●wns but not to Villages but as he ●ws wherin a Village consists it whol●roves to my mind For the bounds of Villages are not con●ed within the Circuit of Walls p. 52. b. Build●s or Streets but within the Compass Fields great Authorities certain Ham●● and many other as of Waters Woods 〈◊〉 Wast-grounds which it is not needful set forth by their Names Here not any one of the Particu●● seem necessary to be added to the ●●er unless all must but even a certain Compass of Fields or of Woods 〈◊〉 make a Village without any great A●thorities and within that space mig●● be certain free Customs which the Ow●ers enjoy nay though not inhabitin● And for an Evidence of our Autho● great Love to Truth he observes 〈◊〉 what is said in the Comment upon th●● very words which he cites out of ●●tleton 1. Inst. fol. Villa ex pluribus mantionibus v●mata collecta ex pluribus vici● And if a Town be decayed so as no ●●ses remain yet it is a Town in Law But what need I resort to forei● Proof when in effect this is granted my hand For Against Jan. c. p. 61. ib. p. 63. King John's Charter and Ki●● Henry the Third's were the very same King Henry the Third's was but ●ward the First 's and Ed. 1. in the ● of his Reign rather explained or enlar●● that Charter of King John than c●●firmed the Charter of H. 3. Well to be sure nothing of S●●stance was left out So that the Rig●●● of coming to Parliament which inde● could not be omitted out of the Ch●●ter of all the then Liberties and Rig●●● of the Subject were included in 〈◊〉 Charter of Ed. 1. Wherefore in those ●imes and in Henry the Third's if the Charter were in his time made and confirmed with that Omission of the Te●ants in Chief as not material the Rights of all were comprehended under the Li●erties and Free-Customs of the Civitates Portus Burgi Villae being from the ●9 H. 3. by the 25. Ed. 1. to be sure he Villae the Inhabitants holding Free-●ands in any Village or Parish came by Representation So that in the Charter of King John Villae must signifie inferiour Towns or Parishes as well as in the 25. of Ed. he First But p. 64. 't is an absurd Supposal that by he 25. of E. 1. the Constitution was not ●etled even though himself says that the House of Lords was constituted before ●nd that a new Government was not on●y framed Against Mr. Petyt pa. but set up Nay I shall prove ●hat the Representations of the Commons were then setled but to urge almost he same Argument from other words of his If Hen. the Third's Charter accord●ng to Matthew Paris p. 62. on whom he ●elies in nothing differs from King John's As I have seen in several Manuscripts of great Antiquity affirming that they were some 2. aud some 9. H. 3. and which the Charter inrolled 28 Ed. 1. proves beyond Dispute and yet in that of Henry the Third the Clause relating to the Tenants in Capit● is left out Is it not Demonstration to him that the Right● of small Towns and Parishe● were preserved by the general Words I insist upon And that according to the Sense of the Charter 15 Ed. 1. when the Commons were no● obliged to be represented by Tenants i● Capite only he himself contends for no● more than the Fact that sometimes mo●● of the Knights for the Counties we●● such as held in Capite by Knights Service But why was not Henry the Third Confirmation of King John's Charter 〈◊〉 much the Charter or Grant of H. 3. ● Ed. the First 's Confirmation made it hi● Charter So that here is another Contradiction if he insist upon it that it was not as properly the Charter of Hen. 3. as Ed. 1. And in Truth Henry the Third's was most properly his since he granted it not as a Confirmation of King John's Charter but as the Liberties which were in England in the time of his Grand-father Hen. 2. For although the King says Ma. Paris 305. 〈…〉 Omnes illas libertates juravimus which I take it referred to the Confirmation 20 yet one of his Councellors insists upon it in the King's name that they were extorted by Force from King John for his Charter they

Rich. 2. tells us out of Sprot and others though some would have us think that he took it only out of Sprot He himself tells us that even where he follows Sprot Quaedam superflua à compilatione dicti Thomae resecans quaedam notabilia suis in locis eidem addens ib. he not only cut off many things but added many remarkable Passages Thorne gives us a particular Account of Stigand's raising the men of Kent to ●ight for their old Laws and Liberties Thorne fol. 1786. which many others not being Kentish ●en would not mention lest their Magnanimity should upbraid the sud●en yielding of the rest This I take to have been between October and Christmas when he was ●rowned and that having entred into Treaty and concluded on Terms at London which however they tell us that ●e broke he went towards Dover Vt ●llam cum caeteris partibus comitatûs suae ●ubjiceret potestati It seems Dover was then the Strength of Kent and he thought by the get●ing of that he should be able to keep all that Country under Upon this Arch-bishop Stigand and Abbot Egelsine and all the great men of Kent perceiving that an ill Fate lay upon the whole Kingdom and that whereas before none of the English were Servants now Nobles as well as Plebeians were brought under the Yoke of Slavery represented to the People assembled together the misery of their Neighbours the Insolence of the Normans and the hardship of a servile Condition and animated them all as one man to a resolution of dying or maintaining their Liberties I know many learned men look upon this part as suspicious taking the Sense to be that there were no Villains in England Sylas Taylor of Gavel p. 167. in Kent especially before that time which they are at pains to shew that there were But I conceive the meaning of the words is no more than that there had ever been in England a Distinction between Free-men and Slaves and therefore that none of the English that is the People of the Land which the Law has ever confin'd to Free-holders they that depend upon the Will of others Villains or Servants being no Cives any part of the Nation in that sense ought to bear that Slavery which the Violence of the Normans threatned to all in common Nor wants there Authority for the Freedom of all the Kentish-men in the largest Extent for in an ancient Roll of the Customs of Kent Lambert's Perambulation of Kent 21 Ed. 1. 't is said to have been allowed in Eire before John of Berwick and his Companions the Justices in Eire in Kent the 21 of King Edward the Son of Henry that is to say that all the Bodies of Kentish men be free as well as the other free-bodies of England Lambert's Perambulation p. 632. And this confess'd to be true 30. Ed. 1. in the Title of Villenage 46 in Fitzherbert where it is holden sufficient for a man to avoid the Subjection of Bondage to say that his Father was born in the Shire of Kent The just value of this Freedom Thorne made all the Free-holders of Kent with all that depended upon them resolve to put a stop to William's Depredations At Swanscomb was their general Randezvouz and their numbers were so great that as the Norman Prince advanc'd he found himself hem'd in with an armed Wood for that they might secure themselves of his making no Escape so confident were they of Victory or forcing their own Terms every man by Agreement took a Bough in his hand to block up the way The Arch-bishop and the Abbot in the name of the rest told him that the whole People of Kent were come out to meet him and to acknowledge him their Leige Lord if they might enjoy their Liberties and Laws otherwise they denounc'd War and bid him Defiance Upon this William calls a Council of War and he finds it expedient to give them their Terms they knowing how he had used those who trusted to his Generosity or Justice took Hostages as well as gave and then in full Assurance of his Performance yielded him their County or the Government of it not all the Land and Property there and as what would secure the Government there to him resigned up the Castle of Dover To this Relation Perambulation of Kent p. 25. the great and faithful Antiquary Mr. Lambart gives sufficient Reputation Mr. Camden says Camden ' s Brit. Ut verè quamvis minùs purè in antiquo libro sit scriptum that no man before Sprot has told these Circumstances but he cites an ancient Authority which was a Plea not oppos'd and which could not be taken from Sprot in which he confesses the Substance of this to be contained and though not elegantly writ yet with Truth So that Mr. Camden is on our side being convinc'd by the truth of his own quotation Dicit Cantii Comitatus quod in Comitatu ipso de jure debet de ejusmodi gravamine esse liber quia dicit quod Comitatus iste ut residuum Angliae nunquam fuit conquestus sed pace facta se reddidit Conquestoris dominatui salvis sibi omnibus libertatibus liberis consuetudinibus primò habitis usitatis The County of Kent says that in that County of right it ought to be free from such a Grievance because it sayes that that County was never conquered like the rest of England But having made a Peace yielded its self to the Conquerour's Dominion saving to themselves all their Liberties and free Customes at first had and from that time us'd It seems in standing up for their own Rights they reflected upon the rest as an humble conquer'd People And indeed whereas it has past into a Maxim Nemo miser nisi comparatus No man's condition is unhappy thought But when into the Scales with happier men he 's brought On the other side men are apt to think their Happiness incompleat without comparing themselves with those whom they look upon as deprived of the Advantages which they enjoy Thus our late Author enhances the value he puts upon himself by the Contempt which he thinks his Adversaries deserve though in truth how low soever they lye he rises no higher but it may be disgraces his Mastership by the comparison But to return to the Men of Kent the generality of which how free soever they were Against Mr. Petyt p. 39. were by his Rule no Freemen of the Kingdom for all the Freemen of the Kingdom were Tenants in Military Service Feudalibus Legibus non 〈…〉 Spel. Glos. tit Gavel kind Which was of the Feudal Law whereas their Gavel-kind was exempt from it I can imagine no other Reason why they above others constantly maintained their old Laws and Customes than that they were a sturdy People more than ordinary tenacious of their Rights and sensible of the least Violation And possibly for a long time they retained the Power of taking Satisfaction upon

Term. Pasc. 7. 8. J●hannis 9. dorso claims against William Scoteny the Capital Messuage which he ought to have in Steinton with the Appurtenances as that which belongs to his elder share of the Barony which was Lambert Scoteny's These surely were Brothers not Sisters Sons being of the same Name and the Claim being immediately from the seizin of Scoteny and this Claim was allowed as the Record shews Besides tho 't is generally believed that Wardship was in use before the Reign of H. 3. And Mr. Sylas Taylor in his History of Gavelkind Hist. of Gavelkind p. 104. thinks he proves it to have been before the supposed Conquest Yet we have good Authority that there was no express Law for this before 4. H. 3. K●ighton fo 2430. A● 1219. 4 H. 3. Magnates Angliae concesserunt Regi Henrico Wardas hoeredum terrarum suarum quod fuit initium multorum malorum in Angliâ The great men of England granted King Henry the Wardships of their Heirs and Lands which was the beginning of many Evils in England 2. We find Custom prevailing beyond what was the foreign Feudal Law at least of some places for which I may instance in Relief paid by the Heir male after the Death of his Ancestors Whereas I find it in Cujacius payable only by the Heir female Cuja●i●s fo 498. Siquis sine filio Masculo mortuus fuerit reliquerit filiam filia non habeat beneficium patris nisi à domino redimerit If any one dye without Heir male and leaves a Daughter let her not have her Fathers Benefice unless she redeem it of the Lord. That Relief was called Redemption appears by the Law of H. 1. Leges fo 1. cap. 1. Haeres non redimet terram suam sicut faciebat tempore fratris mei sed legitimâ justâ relevatione relevabit eam It seems in King Rufus his time this payment was so unreasonable that 't was a Redemption in a strict sense and a kind of Purchase of the Land but now 't was to be a lawful and just Relief 2. The jus feodale mentioned in the Glossary if it be not the Law generally received where Feuds were must be the Law of England in particular But 't is to be observed that Choppinus knocks this down who tells us that amongst the French Juridica potestas was not imply'd by a Feud Against Petyt p. 31. in margin But our Apollo teacheth us that our ancient Tenures were from Normandy and that was govern'd by the French Feudal Law being of the French King's Feud Wherefore the Juridica Potestas or jus dicere was not here Ex ipso jure feodali nay in the same place the French Feudist tells us Choppinus de Jurisdict Andeg fo 455. Interdum certè Baro Castellanum observat superiorem 'T is certain sometimes a Baron is under a Castellan's Feud And he gives the Reason why it may be so which is that a Feud carries not with it ib. so 450. the Potestas juridica which reason is very apparent in that a Castellan is of a degree lower than a Baron Take Juridica potestas in the same Sense with jus dicere in the Glossary a Baron was to take Laws from his Inferiour Leges H. 1. cap. and to have his Lands taken from him without Forfeiture as it appears by the Law of Hen. 1. that being one of the Judges in the County Court was not upon the Account of Resiance but the having Free land there so it must have been in the great County Court of Cheshire though they had an extraordinary Power there Admit therefore that a Lord of another County were Feudal Tenant to a Commoner there as 't is not to be doubted but he might have been should this Lord have been represented by his Capital Lord there Glos. 2 part Consentire quisque vid. Or admit a Lord there had no Land but what he held of a Commoner as of such an one as Thomas de Furnival Jani Angl. facies nova p. Sed vide the Record more at large who had several very considerable Mannors might Thomas de Furnival represent the Lord in the Lord's House But farther taking the Jus Feodale to be as in force with us unless the positive Law giving so large a Power be shewn 't is a begging the Question for 't is to prove the Right which our wise Antagonist would exclude from the Question as being indisputable I suppose by the Fact whereas the fancied Right is used in his Hotch-potch Glossary to induce us to the belief of the Fact But from what Sourse is this Right deriv'd SECT 5. An Improvement of the Notion of Jus Feodale THat I may make our mighty man of Letters out of Love with his darling Glossaries 2 Part of the Glos. and his own I shall observe to him That according to that for the Credit of which he pawns his own Truth or his Friends All the Lord 's Right of Representing their Tenants in the Great Councils Against Mr. Petyt p. 31. is meerly Feudal ex ipso jure feodali But all Feuds were enjoy'd under several Military Conditions or Services Being then these were the onely Feudal Tenures and yet as appears by Domesday-Book and all manner of Authority there were Freemen who held in free or else in common Socage though the Dr. sayes all the Freemen of the Kingdom were Tenants by Military Service These Socagers were not chargeable by any without their own consent But like men of another Government and it seems he will afford them nothing here they though called were not obliged to come to the Great Council which was the Curia of the King 's Feudal Tenants onely Nay they were never at it And therefore no wonder if the Laws were obs●rved by and exacted upon Against Mr. Petyt p. 43. onely the Normans themselves For the others could not be bound and if they consented to any Charge for Defence of the Government it could be onely in what way they pleased to consent either in a Body by themselves or united with the Vassals or else severally at home as a meer Benevolence And there being free and common Socage Tenants before the Norman's Entrance and since continually thus it must alwayes have been CHAP. III. That Domesday-Book to which he appeals manifestly destroyes the Foundation of his Pernicious Principles SECT 1. SInce our Tenures and the manner of holding our Estates Against Mr. Petyt p. 31. in every respect with the Customes incident to those Estates are said to be brought in by the Conquest and not onely most but all free Estates must have been feudal as Knights Service which is made the onely feudal was in the time of William the First the onely free Service ib. p. 39. What I have said of Feuds in the last Chapter doth directly reach the Controversie between us though our Author who has an excellent faculty of overthrowing his own Arguments

the Iniquity of M●nkind And whatsoever Act preceeds from the King's Ministers or whatever Malice be in the Heart of any of his Subjects the Law that Angel with a flaming Sword de●ending his Throne will not suffer it to affect him Nay if through Misunderstanding of the Law it should happen that a King go contrary to his own Justice 't is as if no such thing had been done So Plowden's 〈◊〉 i● he having an Estate in Taile Alien though from a common Person it would work a Discontinuance yet from him it has no Effect because it would be a wrongful Action Though he has more Power than any Subject yet Subjects may be and are more able to do Mischief And for a full Proof what Confidence the Law has always had in the King 's doing nothing in his own Person but what is highly fitting though an effect should follow upon a rigorous Action of his as if he should kill an innocent man with his own hand there never was any Remedy And this was taken for Law as long since as the Confessor's time Nor is it to be imagined that William the First and his Successors re●eded from this Power how little soever ●hey exerted it In that famous Case where the Confessor Tit. of Honour fo 525. impeach'd Earl Godwin of Treason 't is urged by the great men of Godwin's Party that he could not be a Traitor to the King because he was never ●ied to him by Homage Service or Fealty 'T is answered and not replyed ●o on the other side That no Subject ought Bellum contra Regem in appellatione ●uâ de lege vadiare could not lawfully demand the Battail against the King Appellant Sed in toto se ponere in ●isericordia Regis but must wholly yield himself to the King's Mercy In this Case though the Party might prove himself against a Subject to be innocent yet there was no way of Tryal against the King the Appeal being the only Tryal● and that required Battail but a ma● ought rather to lose his Life than strik● his King to whom he owes his Protection and Defence from Rapine as the King i● the great Executer and Preserver of th● Laws Though this Case is of the King 's appealing yet if a Subject should presume t● be Appellant against his King for th● Death of his nigh Relation the Reason holds and surely 't would be very absurd for an Indictment to be brought in the King's Name who has Jus gladii against himself others could not execut● the Judgment upon him and I take it no man can be compelled by Law to b● felo de se. But what need have I to say any thing on a Subject which every man is bound b● his Allegiance not to controvert I shall only observe That the Disput● between us can be no more than wh●● Right one Subject or body of Subjects has to impose upon another Whether 〈◊〉 ●o the Kings of England have always had a Council in matters of Legislature we have no Difference the only Question is who were of the Council but if as 't is argued on the other side Tenants in Capite were the only Council and if I prove that the House of Lords succeeded to the whole Power of such Tenants and these can have no more than they had he that makes the Tenants the only Council for the Legislature takes away the King 's Negative Voice for that the Lords have in that Jurisdiction which they enjoy upon that old Right of the Tenants in Chief and no King pretends to the Trouble of having a Negative in matters of ordinary Judicature But besides this which I have answered there is a Charge of being an Enemy to the Government by Law establish'd in the Church for which we must consider that the Government in this Respect is made up of the Laws and the Officers in it For the Laws I dispute none of them because I acknowledge the Authority which made them and whether 't is advisable that any of them be altered I leave to the Supream Wisdom of the Nation For the Officers I quarrel not at the Chief the Order of Bishops nor yet at the Ecclesiastical Jurisdiction upon the Reason already given and my Proof that they have this by Law perhaps is Particular truly I conceive it to be a great Mistake that the Statute which took away the High Commission Court took away all Ecclesiastical Jurisdiction for only the part relating to that Court is repealed and then the first of Elizabeth having revived the 28th of Hen. 8. the former Power called Ordinary Power is left entire being provided for by the Statute of H. 8. Which amongst other things Enacts That every Arch-bishop and Bishop of this Realm 28 H. 8. ● 16. and of other the King's Dominions may minister use and exercise all and every thing and things pertaining to the Office or Order of an Arch-bishop and Bishop with all Tokens Insigns and Ceremonies thereunto lawfully belonging It may be said That still I say nothing of the Divine Right of Church Officers and Power but that I may step as far as can reasonably be expected from a Lay-man I acknowledge that there is a Divine Right for Church-Officers and Spiritual Power distinct ●●om the Civil I cannot now but hope that I have said ●nough to render me fit to be heard upon ●y first Subject in which I have follow●d the Authority of the great Fortescue ●ho taught the World long since nor is ●his man of Letters too good to learn of ●im that in all the times of these seve●al Nations and of their Kings Fortescue p. 38. 6. As translated already this Realm was still ruled with the self-●ame Customs that it is now govern'd with all Which if Mr. Selden had taken in ●he Genuine Sense as meant of the Government or Constitution which is the Foundation of all particular Laws he ●eed not have been at so much Pains in his Comment hereon If I find any thing more expected from me either in Vindication of my self or ●n more fully drawing my Adversary in ●is proper Colours and admirable Features the first I shall do for the sake of Truth and if I can get as much vacant time from my Studies and Practice in my Profession His Letter to the Earl of Shaftsbury as it seems he has had from ●is I may do the other if it be only for Diversion I am sensible that want of time or of Health to give the finishing Strokes to this rude Draught are of themselves but poor Excuses to a Reader who would doubtless be content to stay till he could see some thing more correct but when my delay would give time for so much growing Mischief as has been sent abroad to spread it self even such an Antidote as I now offer may be accepted till Mr. Petyt has fully prepar'd his Catholicon which will persuade them who have been imposed upon with Noise and Nonsense to

to his Parliament and no others unless by chance But pray what a Reflection is this upon several excellent Monarchs Successors to H. 3. whom he renders Denyers of their own Acts though under the Broad Seal But there is an Argument in the Parliament Rolls 3 H. 6. p. 12. upon the Question of Precedency above-mentioned where 't is taken for granted that our Kings and Queen● had not then such a Prerogative to do wrong If soch commandementz shold make right and yeve title it wer to hard for yen shold it seme yat neither of my sayd Lords Erls Mareschal and Warwyck shold fro this day never sitte● in Parlement without new Commandement To tell the Lords who are concern'd 〈◊〉 this that there are many who have an ●●defeazable Right by Patent and some ●he first of whose Ancestors or themselves ever had any more than the ordinary ●rits without creating Clauses or any ●her than such as when any Parliament ●as to be called went out of Course and Right to them who were Lords before ●ould be as needless as the Orators Dis●ourse of Tacticks to the Carthaginian Hero I shall be bold to offer to Consideration ●herein consists the Right of such a Sum●ons and I take it to be in the Prescrip●ion though perhaps none were setled in ●he Right of coming till the 11th of R. 2. Yet the time from whence they pre●cribe might be Earlier and yet whether Writ alone or only as fortified with Pre●cription gave the Right here was what was not still left to Royal Pleasure on●y I conceive that a Writ of special Sum●ons of it's self gave no man Right to come always after this as a Lord for if it made him not a Lord it gave him no Right to come to the Lords House as such And this I take to be evident from the Records of the several Summons of the tw● Furnival's Jan. Angl. at the latter end Father and Son who had th● same Writs of Summons with the Lord● and yet were no Lords for the lowe● Degree of Lords was Barons and th● Son pleads that his Amerciament in a great a Sum as a Baron was against Law for that he neither held by Barony ne● Baro suit intitulatus nor was called B●ron nor obtained that name which could not have been if he was one of the Baron● in Parliament so that he could be no more than an Assistant as the Assistants hav● Writs in the same form with the Lords Wherefore if any claim'd from Writ 〈◊〉 must be by prescribing to have had it 〈◊〉 long time in his Ancestors as amounts 〈◊〉 a Prescription by the Custom of Parliament which is the Law of it Besides 〈◊〉 can be no Objection that to a Prescription 't is necessary that it should have been i● memorially so as nothing to the contrary can be shewn whereas the very first Wri● may be seen for this most plainly is different from common Prescriptions both in the manner of it and in the Reason of th● thing 1. In the manner We find the Burgesses of St. Albans to lay their Prescription only from the time of the Progenitors of E. 1. which might be only from within the time of King John or from the beginning of his Reign if but from the later end ●here were an hundred years for a Prescrip●ion 2. But besides this apparently differs in the Reason of the thing so that it must needs have a different Law from common Prescriptions For other things the Ground of the Right is the always having enjoyed either by a man's Ancestors or by them whose Estate he has And if it were at any time in others and it could not appear when they parted with it 't was a manifest Injustice for them to make such a Claim to have it so that ●he appearing upon Record when the first Writ was is an Argument that a Prescription may lawfully be made in this Sense 2 There were Commonalties Rot. Par● 8 E. 2. Bodies contracted by Representation that came to Parliament of Right who yet were Lords in the Drs. Sense being they held in Capi●e as he supposes the Knights for the Coun●ies to be Grantz the same with Magnates as they held in Capite I am persuaded in this he taught the most Learned what fell not within their Knowledge o● Belief before and for a while made them quit that peice of Philosophy Nil admirari in wondring at the Sagacity of the man However by this time 't is wond'rous plain from his Demonstrations that admit a Difference was made between Lords and Commons with distinct Power yet the Commons of Counties Citties and Burroughs were not only often called by the same Names Yet I take it that such Tenants in Capite had no share in the Judicature because then 't would have continued still but were strictly Lords and therefore had a joyn● Power even in Judicature For if they came before as Tenants in Capite and that Tenure made them noble 't was to be ever in the same manner since 6 R. 2. c. 4. But the very Traders nobilitated by the Dr. lay claim to and have allowed them a Right from Prescription It may be objected from hence against my Notion of the Lords which held in Capite being pass'd by at the King's Pleasure tho others were not that here a Prescription is laid upon the Tenure in Capite And it being from before the 49th o● Hen. 3. there could have been no such Settlement as both my Opposite and my self receive He perhaps has set aside this in his own Opinion but I must confess I can't embrace his new Sense However I think it no hard matter to give a natural Answer For the Author cited by the faithful Mr. Camden acquaints us with no other Alteration than what related purely to Singular Person● ex tanta multitudine Baronum Mat. Par. Quasi su● numero non cadebat Who being scarce to be numbred made very great Disturbances which required a new Model and a Restriction of the Numbers provided it might be with a just preservation of the Rights of every one in particular but those great Bodies which before came by Representation could admit of no change without a tendency to Destruction Agreeably to this Observation the Inhabitants of St. Albans plead their Right to be represented in Parliament not barely because of Tenure in Capite Rot. Parl. 8 Ed. 2. but Sicut caete●i Burgenses regni as other Burgesses in ●he like Circumstances 3. I hope I have some Reason for my Confidence when I affirm that I ought 〈◊〉 differ from this New Light when it instructs us that the King 's appointing ●nd ordaining p. 227. That all those Earls and ●arons of the Kingdom of England to which he thought fit to direct Writs of Summons should come to his Parliament and no others or as he repeats the same meaning the Arbitrary Practice of Henry the Third Ed. the First and his Successors

constantly was the Constitution of the House of Lords Having recited the words of Camden's Author he goes on Having had one great Antiquary's Opinion Against Mr. Petyt p. 228. joyned with matter of Fact upon the Constitution of the House of Lords let us see the Opinion of another concerning the Origin of the House of Commons so that the Constitution of the House of Lords answer● to or is in the same Sense with Origin in Relation to the Commons And the making this to have been the Constitution of the House of Lords and maintaine● in Practice ever since is as much as 〈◊〉 say the Rights of that Order of men a●● not setled at this day for the despotic Power in this matter has been if we believe him constantly exercised and tha● of Right ever since the 49th of Henry the Third By the Constitution of the House 〈◊〉 Lords that which is the only thing possib●● to be here implyed by the word is the Righ● of the Lords to come as Lords and the beginning or first Establishment of it For the Constitution of an House separate from the Commons could not consist in the King 's leaving out or calling Lords at his Pleasure since such Arbitrary Procedure with them would only differ them in point of Interest from the Commons whom he pretends not to have been omitted at the King's Pleasure ever since the 49th of Henry the Third but he denies in effect that any Lord and by Consequence even enough to make an House or distinct Assembly of Lords in Parliament had or yet have any Right Thus against the Laws of Friendship he destroys the Successors of those Tenants in Capite whom he so dearly lov'd and cherish'd And it seems courted a great Asserter of the Rights of that High Order with a fawning Epistle that he might the more easily betray them all with a Kiss of the hand Vid. his Letter to the Earl of Shaftsbury and Your Lorships Most humble and obedient Servant ●nto a Belief that he could give all due Sa●isfaction In the Charge which I have drawn up I have intended no Injury if the Consequences will not hold 't is from the Error of my Judgment not of my Will For my self admit what I am impeach'd of by him to be true yet being I argue that ever since the 48th or 49th of Hen. 3. no man had Right to come but as at this day If my Notion of what the Government was before be false 't will do no harm and I hope it cannot be affirmed with any Justice that I am a new Government Maker in relation to the present Frame yet I know that it has been whisper'd about as if I would have this Government to be new modell'd which I utterly abhor and that more than my Accusers the Ground of whose Accusations have been chiefly my devoting my self to the Service of the admirable Constitution by King Lords and Commons the Rights of the two last I have according to my Capacity defended being the● have been controverted But surely n● man dares be so presumptuous to set him self against God's Vicegerent by Divin● Appointment put over us and that 〈◊〉 our great Happiness in all matters or Ca●ses There are several Interests in our m●serably divided Nation and wise men may be of each Party yet if any such should wish ill to our gracious Monarch or to Monarchy it self both his Wisdom and his Honesty were justly questionable What Alteration of Property the great Basis of a Nations Strength and Peace would be upon a new Model when Ambition an over-weening Opinion of a man's self Covetousness nay and Prodigality too would make many strive to be uppermost while they brought their poor Country under the greatest Slavery For my part I shall not scruple to deliver my self with the greatest Openness and Plainness of Heart The King is justly the Supream Head and Governour in all Causes Ecclesiastical as well as Civil Long may he en●oy this his undoubted Right Serus in coelum redeat Hor. Ode 2. diuque Laetus intersit populo precanti Neve se nostris vitiis iniquum Ocior Aura Tollat Long may he live and long in Peace command Monarch of Hearts as of his native Land Long be it e're the Angels nigh his Throne By mounting up with him leave us alone His Prerogative no man or body of men can take from him which his excellently devised Negative to all Petitions and Counsels secures And this makes it that the Sanction of all Laws is from the King only for what a man does by the Advice of Counsel he does by himself as much as a man acts freely in those very things in which there is the special Assistance of Grace and Conduct of Providence For fear I should not be clear enough in my Expre●sions though my Heart be clear in it I will make the learned Bishop Sanderson speak for me He says according to my real Sentiments Sanderson de obliga●ione Conscienti● Praelectio 7. p. 189. Cum dicimus penes unum Regem esse jus condendarum legum non●id ita intelligendum quasi vellemus quicquid Regi libuerit jubere id continuò legis vim obtinere nam populi consensum aliquem requiri mox ostendam Quin hoc est quod volumus quod scilicet Plebiscita Senatus consulta caeteraeque Procerum plebis aliorumque quorumcunque rogationes nisi regia insuper authoritate muniantur non obligent subditos nec habeant vim Legis quibus tamen maturè ritè preparatis simul ac Regis accesserit authoritas legis nomen formam authoritatem protinus accipiunt incipiuntque statim ac promulgatae fuerint subditos obligare Cum igitur illa sola censenda sit cujusque rei causa efficiens principalis sufficiens quae per se immediatè producit in materiam preparatam introducit eam formam quae illi rei dat nomen esse etsi ad productionem ipsius effectûs alia etiam concurrere oporteat vel antecedere potius ut praevias dispositiones quò materia ad recipiendam formam ab agente intentam aptior reddatur omnino constat quotcunque demum ea sint quae ad legem rectè constituendam antecedenter requiruntur voluntatem tamen Principis ex cujus unius arbitratu jussione omnes legum rogationes aut ratae habeantur aut irritae esse solam adequatam publicarum legum efficientem causam Besides this I have in Sincerity subscribed to his Majesty's Power in Calling Proroguing and Dissolving of Parliaments and this were enough in relation to our present Controversie being only of Parliamentary matters But in short to offer at the Flower of all other Flowers of the Crown the King can neither do nor suffer wrong but like God Almighty dispenses his Blessings to the inferiour World while he sits above in an impeccable impassible immortal State God is not the Author of Evil nor can he suffer by