Common Council to provide for the Indemnity of the Crown of the Kingdom and for repressing the Insolence of Malefactors for the benefit of the Kingdom which as appears from the words and subsequent as well as former Practice besides the Opinions of ancient Lawyers did not except the King himself whatever Care is taken of the Crown of the Kingdom However 't is certain the Parliament 12 R. 2. referr'd to a known Statute when they mind him of an ancient one not long before put in practice Whereby if the King Knighton f. 2683. meaning the Case of E. 2. through a foolish Obstinacy Contempt of his People or perverse froward Will or any other irregular way shall alienate himself from his People and will not be govern'd and regulated by the Rights of the Kingdom and laudable Ordinances made by the Council of the Lords and Great Men of the Realm but shall headily in his mad Counsels exercise his own Arbitrary Will from thenceforth it is lawful for them with the common Assent and Consent of the People of the Realm to depose him from the Throne c. This Law is not now extant but was not then deny'd Knighton f. 1752. This observ'd after me by the Author of the Answer to the Popular Objections p. 44. and the Reason why it is not to be found is very evident from the Articles against this King some Years after In the 24 th Article they accuse him of causing the Rolls and Records concerning the State and Government of his Kingdom to be destroyed and razed to the great Prejudice of the People and Disherison of the Crown of the said Kingdom and this as is credibly believ'd in favour and support of his evil Governance More particularly in the Historian unmask'd by the same Author Mirror p. 9. The Mirror tells us That of Right the King must have Companions to hear and determine in Parliament all Writs and Plaints of Wrong done by the King c. And the Learned Hornius cites the Speculum Saxonicum Hornii orbis imperans p. 196. of the like Name and Nature with our Mirror the Author of which last was of his own Name The Saxon Mirror as he says was written before the Normans came hither The Justices or private Persons says he out of the Speculum neither ought nor can dispute of the Acts of Kings yet the King has Superiors in ruling the People Hornius p. 196. who ought to put a Bridle to him And Hornius says the old Saxon Lawyers limit that Maxim The King has no Peer to wit in exhibiting Justice but in receiving Justice they say he is the least in his Kingdom Tho Bracton seems to restrain this Rule to Cases wherein the King is Actor in judicio suscipiendo si petat Fleta who takes it from Bracton seems to correct the Copy and has it si parcat Fleta lib. 1. cap. 17. If he spare doing Justice to which end both affirm that he was created and chosen King And Bracton himself shews elsewhere Bracton l. 3. c. 9. p. 107. that he means more by the Reason which he assigns why the King ought to be the least in receiving Justice Lest his Power should remain without Bridle This for certain he sufficiently explains Ibid. when he says That no Justices or private Persons may dispute of the King's Charters and Acts Bracton l. 2. c. 16. p. 34. but Judgment must be given before the King himself which must be meant of the King in Parliament as appears by a Petition in Parliament 18 E. 1. Vid. Ryly Plac. Parl. f. 20. Fleta supra Superiores So Mirror p. 9. Ceux Compagnions sont ore appelles Comites in Latine Comitatus where he takes in all that come up to Parliament from the Counties where Bracton's Rule is received But Bracton says he has God for his Superior also the Law by which he is made King also his Court that is to say the Earls and Barons for they are called Comites being as it were Companions to the King and he who has a Companion has a Master Therefore if the King acts without Bridle they are bound to bridle him and Bracton in one place says In receiving Justice the King is compar'd to the least of his Kingdom without confining it to Cases where he is Actor This puts a necessary Limitation to that Maxim That the King can do no Wrong that is not be adjudg'd so by the Judges Commissaries or Commission'd Judges Vid. Mirror p. 209. He there says Suitors are Judges ordinary and 274. speaks of Counties les autres Suitors having Jurisdiction in Causes which the King cannot determine by himself or by his Judges So Judg Crook's Argument in Hampden's Case p. 59. Whatever is done to the Hurt or Wrong of the Subjects and against the Laws of the Land the Law imputeth that Honour and Justice to the King whose Throne is establish'd by Justice that it is not done by the King but it is done by some unsound and unjust Information and therefore void and not done by Prerogative which the Mirror uses in Contradistinction to Judges Ordinary sitting by an Original Power yet this does not in the least interfere with the Judicial Power of the High Court of Parliament and it may be a Question Whether that Maxim as receiv'd in the Courts of Justice is ever taken to reach farther than either in relation to the Remedies which private Persons may there have against personal Injuries from the King as where 't is said The King cannot imprison any Man because no Action of false Imprisonment will lie against him or rather because of the ineffectualness in Law of his tortious Acts. But what the Nation or its Great Councils have thought of such Acts will appear by a long Series of Judgments from time to time past and executed upon some of their Kings Long before the reputed Conquest Sigibert King of the West-Saxons becoming intolerable by his insolent Actions Chronica de Mailros f. 137. Anno 756. Bromt. f. 770. Cōgregati sunt Proceres Populus totius regni eum providâ deliberatione à regno unanimi consensu omnium expellebant was expell'd the Kingdom and Bromton shews that this was done in a judicial manner by the unanimous Consent and Deliberation of the Peers and People that is in the Language of latter Ages by Lords and Commons in full Parliament Lambart's Pref. to Archaionomia Northumbrorum Imperii magnitudo ea fuit quae nunc est Ehoracensis Dunelmensis Northumbriae Cumbriae Westmorlandiae Comitat. atque reliquam praeterea Lancastrensis Com. partem complectebantur Chron. Mailros f. 138. Anno 774. Sin Dunelm 106. 107. Consilio consensu omnium Regiae Familiae ac principium destitutus societate exilio Imperii mutavit Majestatem And eighteen Years after Alcred King of the Northanimbrians that is Northumberland and other adjacent Counties was banish'd and
that Statute 't will appear beyond contradiction 1. That the rule of submitting to the judgment of the King's Court will be of no service to Mr. Falkner's purpose the Court which is presum'd to be intended if it relates to the Controversies between the King and his Barons being the Parliament where they would be Judges in their own cases which Mr. Falkner says they ought not to be 2. The Statute of Marlborough does not in the least condemn the Barons Wars For 1. The Subject of that Act is to remedy the abuses of Distresses which are matters within the Jurisdiction of the ordinary Courts of Justice and no way extends to the great questions of the Kingdom determinable only in the highest Court 2. The Statute does not call those Wars a time of Rebellion Vid. Stat. Marlb Fleta p. 25. but of Dissention and Troubles suitably to which even in the time of E. 1. among the Articles of the Crown in charge to the Justices in their Circuits one provides for enquiry after them who have substracted Suits of Shires c. after the War moved between King Henry the Third and his Barons Mat. Par. f. 373. 3. Tho the Barons once threatned H. 3. That unless he would send away the Foreigners they would all by the Common-Council of the whole Realm drive Him and his wicked Councellors out of the Kingdom and would consider of making a new King yet it appears by the Circumstances and Events of the several Insurrections that their design was only to bring him to reason they still were for continuing him King and therefore it might not be improper for the Parliament at Marlborough to hold That for all matters of private differences even while Armies were in the Field the Course of ordinary Justice was to go on and that it was not to be look'd on as a state of War This may be enough to remove the Objections made by Mr. Falkner against the Barons Wars in the time of H. 3. which he supposes to be the most plausible Instance brought by them against whom he writes and I take it that the Reign even of E. 1. one of the most warlike of our Kings affords an Instance no less plausible Ao. 1297. Knighton f. 2510. Libratas In the twenty-first year of his Reign he summoned all who had twenty Pounds a Year â—… Land of whomsoever they held to attend him at London with Horse and Arms in order to go with him to Flanders When they met at London he was advised to be reconciled to some of the Great Men with whom he had been at variance He complied with the Advice excusing himself for former Exactions and desiring their farther Assistance since what he was engaged in was not his own private concern Mat. West f. 430. but the concern of the whole People as he was their Protector and Defender And he intreated them to pray for him which the Historian says very few did heartily But Humphrey Bohun Earl of Hereford and Essex High-Constable of England and Roger Bygot Earl Marshal withdrew from the King whereupon he discharged them of their Offices and gave them to others Yet the King found himself obliged to send some Persons to mediate between Him and Them To whom they declared That it was not their own Cause alone but the Cause of the whole Community which they undertook Knighton f. 2511. For not only They but the whole Community of the Land was agrieved with unjust Vexations Tallages and Levies and chiefly That they were not treated according to the Liberties in Magna Charta Wherefore they drew up a Remonstrance of their Grievances which if the King would command to be redressed they were ready to follow him to the Death Knighton f. 2512. The King gave a dilatory Answer excusing himself through the absence of some of his Council and having desired them not to do any thing to the prejudice of Him or his Kingdom passed the Seas notwithstanding the dissatisfaction that he left behind concluding 't is likely That that Success which commonly attended him in his Wars would gain him a more absolute ascendant over his People The King being gone the Constable and Marshal with their Adherents forbad the Chancellor and Barons of the Exchequer to issue out Process for levying the eighth Peny which had been granted the King in Parliament and which yet they said was granted without their Consent either as they had not due Summons or were upon just Cause absent They continuing together in Arms the King's Son who had been constituted Vicegerent found a necessity of giving them satisfaction To which end he calls a Parliament Knighton f. 2523. where through the mediation of the Arch-bishop whom Knighton blesses for it it was agreed That the King should confirm Magna Charta and the Charter of the Forrest That for the future Magnates he should not ask or take any Aid of the Clergy or People without the good will and assent of the Great Men. And that he should remit all Rancor to them and their Adherents In the Charter or Act of Parliament which then passed there are these Words Remisimus Humfredo de Bown Comiti Herfordiae Esekes Constabulario Angliae Rogero Bygot Comiti Norfork Mareschallo Angliae c. rancorem nostrum malam voluntatem quam ex causis praedictis erga eos habuimus etiam transgressiones si quas nobis vel nostris fecerint utque ad praesentis Cartae confectionem We have remitted to Humphrey de Bowne Earl of Herford and Essex Constable of England Roger Bygot Earl of Norfolk Marshal of England c. the rancour and ill-will which we had against them for the foresaid causes and also all Transgressions or Offences if they have committed any against us or ours to the making of this Charter Here was a quiet conclusion of an Insurrection managed under two Tribunes of the People whose Union had such an effect that what they did was not lookt on by the Parliament to be so much as a Misdemeanor CHAP. VII The known Cases of Ed. 2. and R. 2. touched upon The power of the people manifested in the Wars and Settlements of the Crown occasion'd by the Disputes between H. 6. and E. 4. Why the instances from those times to the late Abdication omitted The Objections from the Oaths against taking Arms and from the Declaration against a Coercive Power over Kings removed by Sherringham and the Triennial Act 16 Car. 1. Pufendorf's Due Restraint of the Power of the People Instances of the like Power in other Nations particularly Denmark Sweedland and Norway when under the same King For France Hottoman Sesellius the Author of Les Soupirs de la France esclave Bodin explain'd and shewn to justify King William in his descent hither and the People of England in their asserting the true Constitution of the Government For the German Empire Bodin and Conringius An occasion taken from him to
being ask'd by the King upon the report made by the Justices of their resolution for the Duke what things the Constable can do by reason of his Office Sir says he this Point belongs to your Law of Arms of which we have no experience nor cognizance This may shew what occasion Cardinal Wolsey had to strain a point of Law against that Duke and to have one who durst insist upon a Right to be Constable of England by inheritance Vid. Inf. 2d Part. to be taken off by an High Steward out of Parliament made for that turn And what Fineux says of the Power of the Constable may account for the silence of Bracton Fleta and other Ancient Common-Lawyers in relation to the Authority of the Constable and Marshal Flet. lib. 2. c. 31. yet Fleta shews that the Constable had a Seat in the Exchequer and overlooked Accompts relating to Soldiers Forts and Castles and gives a shrewd hint concerning the Earl Marshal speaking of the Exchequer The Justices says he sitting there were all Barons Fleta lib. 2. c. 26. because Barons used to sit in their places while the Earl of Norfolk and Martial of England had his Place and Seat there as Chief Justice of the Kingdom of England whose Place the Treasurer possesses at this day but he cannot occupy his Office This shews that in the Exchequer the Earl Marshal had place above the Constable accordingly when 25 E. 1. they came into the Exchequer to forbid the Levying of the Tax The Barons in their account of this to the King say There came to the Bar of the Exchequer Vid. Append. the Earl Marshal and the Earl of Hereford and the Earl-Marshal and the others declared they would not suffer it to be Levied That this Office was of extraordinary Authority Rot. Pat. 42. H. 3. M. 4. appears by a Record 42 H. 3. which shews That the Precept for executing the Provisions at Oxford were by the King and his Council in Parliament deliver'd to the Earl-Marshal and if we consider the Authority exercised by the Earls Marshal in the time of H. 3. and E. 1. with the approbation of Parliaments Vid. Mat. Par. 28 H. 3. it may be thought that he was an hereditary Conservator of the Kingdom notwithstanding which in the 28th of H. 3. the Parliament insisted upon it as their right to have four Conservators chosen by them This Office perhaps is the only one which was enjoyed in gross and went along with the name of Marshal till the time of H. 3. when Hugh Bigod Earl of Norfolk Bar. 1. Vol. f. 133. Married Maud the Daughter of William Marshal Earl of Pembroke Sir William Dugdale says the first mention which he finds of the Name and Family of Mareschal Ib. f. 599. was in the time of H. 1. but in all probability that Name and Office went together from before the time of W. 1. I am sure Roger Mareschal was a very considerable Proprietor in Doomsday-Book Vid. 2 d Part. Indeed the first contest about the Office was in the time of H. 1. when it was adjudged to belong to the Family of the Mareschals Vid. Appendix Rot. Pat. 1. Johan N. 85. M. 12. as appears by the Record of the Confirmation 1º Johannis CHAP. VIII The Third Head of Positive Law The Kingdom founded in Monarchy yet Elective sub modo The Form of Government not dissolv'd with the Contract between Prince and People The Argument from Election of Kings as it is used by the Author of the Sighs of France enslaved The Crown of England proved Elective Sub modo 1. From the Saxon Pontifical and the Council of Calcuth Anno 789. 2. From the Practise till the supposed Conquest 3 From the Confessor's Law received by W. 1. and the Expressions of Ancient Historians and Lawyers since the time of W. 1. 4. The Common usage in asking the People's consent at Coronations 5. The Opinion of Kings themselves 6. The Old Oaths of Allegiance 7. The Liberty even after a Settlement of the Crown 8. The Breaches in the Succession 9. The Statute 11 H. 7. Answers to the Objections 1. That the King never dies 2. The supposition of a Testamentary Heir 3. The Declaration temp E. 3. against consenting to the disherison of the King and His Heirs 4. The claims of Right between Two Families 10. A qualified Election of Kings of England confirmed by observing how it has been in other Nations descended from the same Common Stock THE Kingdom I own is founded in Monarchy and so is Poland which yet is absolutely Elective Nor is there any consequence that the dissolution of the Contract between the immediate Prince and People This objected by the Author of Elementa Politica Of the Magistracy c. vindicated and others Vid. Pufendorf de Interregnis p. 267. Post decretum circa formam Regiminis novo pacto opus erit quando constituuntur ille vel illi in quem vel in quos Regimen coetûs confertur should destroy the form of Government for that depends upon a Prior Contract which the People entred into among themselves And that by virtue of this to avoid endless competitions our Kings have generally from the first erection of the English Monarchy been chosen out of the same Family appears beyond contradiction If our Monarchy will appear from the foundation to be no otherwise an inheritance than as it is setled on a Family with a latitude for choice within the Family no Man can doubt but it will tend greatly towards removing objections against our present Settlement 't is certain the Learned Author of The Sighs of France improves the Argument farther than is needful for us Soupirs de France Mem. ' It is says he indubitable That they who have power to Chuse ' have power to Depose Every Nation says he that makes a King P. 81. preserves to its self a right to unmake him when he goes beyond the bounds of his duty and when he ruines the Estate instead of preserving it and this very thing makes it appear That Elected Princes neither are nor can be Soveraigns of an Arbitrary Power I know some talk of a Birthright and Inheritance in the Crown of England which is not founded in the statutes Jovian p. 87. but on the original Custom and Constitution of the English Government which is thought to be an hereditary Monarchy according to proximity of blood But I would desire all Men of this Opinion impartially to weigh these following particulars 1. Mr. Selden in his Titles of Honour shews us the form of Prayer used at the Coronation of Saxon Kings wherein they pray God to bless him whom they chuse for King and call him one chosen to be Crowned King Et hunc electum in Regem coronandum bene Titles of Honour f. 157. Out of the Saxon Pontifical At Calcuth Anno 789. Spel. Concil 1 Vol. f. 291. dicere consecrare digneris
cause of Complaint being removed and his Estate in Ireland having received great damage from his Enemies he left Leolin to Treat for himself and his Friends and went over to Ireland where he was slain by Treachery The Treaty went on and among the terms it was provided That all Men on the one side or the other Rot. Claus 18. H. 3. N. 17. dors Homines etiam illi qui hinc inde recesserunt a fidelitate dominorum suorum se tenuerunt ex adversa parte libere revertantur Rot. Claus 18. H. 3. N. 20. dors who had receded from the fealty of their Lords and adher'd to the adverse Party should return with freedom And in the Credential Letters which were sent to Leolin with them that managed the Treaty on the side of King Henry He gives him to understand That before that he had restor'd the Lands to all people who had been disseiz'd by occasion of the War between him and the Earl Marshal where 't is far from being call'd a Rebellion on the Marshal's side and at the time of the Treaty the King found himself obliged to protest that he was clear of any consent to the Death of the Marshal and that his Seal was by the great importunity of his evil Counsellours set to Letters which encouraged the Treachery against him and pronounc'd him a Traytor But that he was wholly ignorant of the Contents of them Vid. Matthew Paris The Clergy the Historians the People of that Age in all things extol the Marshal would never allow him to have been a Traytor and were not his own Defence of himself too long to transcribe I should add it as an embelishment to these Remarks Dugdale's Baronage o Vol. 1. f. 752. Simon 16. H. 3. bore the Title of the Earl of Leicester and obtain'd from Almaric his Brother then bearing the Title of Constable of France a grant of all the Lands in England with the Stewardship of England This came to the Earls of Leicester with the Honour of Hinkley in Leicestershire from Petronil Daughter of Hugh de Grentesmenil Vid. Mat. West 20 H. 3. Simon Montfort holding the King's Bason at his Nuptials as Steward of England The Fourth War was that under the Great Simon Montfort Earl of Leicester another Tribune of the People as he was hereditary High Steward by Purchase from his Brother Almaric Constable of France the Stewardship of England having descended from their Mother Amicia eldest Sister to Robert Fitz Parnel Earl of Leicester who died without Issue Mat. Par. f. 1302. Whoever reads the History of H. 3. must needs conceive a mean opinion of him his Cowardise was as remarkable as that of one of his Successors who is said not to have been able to contain at the sight of a drawn Sword nor could H. bear the terrour of Thunder and Lightning yet when Simon Montfort endeavoured to remove one of his frights Quod scilicet Comes Leycestriae virilius perstitit ferventius in persequendâ provisione ut saltem Regem omnes adversantes suis astare consiliis cogerent c. he confest to him That he fear'd him most Which was suspected to proceed from Montfort's warm and strenuous pursuing the Provisions at Oxford at least his being for compelling the King and all opposers to stand to the Counsel of his Barons Simon thinking the execution of the Oxford Provisions to be well secur'd Fol. 1314. went beyond Sea upon which Richard the King's Brother prepar'd to come into England with intention and hopes as it should seem to get them vacated as being made without consulting him But the rest of the Barons tho' they were in great fear because of Simon 's absence Ib. f. 1315. Juramentum quale Barones Angliae reipub Zelatores exigebant would not suffer Richard to Land till he had oblig'd himself under his hand to take such an Oath as the Barons of England who were zealous for the Commonweal or Publick-good required the form of which follows I Richard Earl of Cornwal will be faithful and diligent to reform the Kingdom of England with you hitherto too much deform'd by the Counsel of Evil-men And I will be your effectual helper to expel the Rebels and disturbers of the said Kingdom Notwithstanding the seeming agreement between the King and People and Security taken for his performance Foreigners invited and supported by him became an intolerable burden and the King being kinder to them than to his People obtain'd from the Pope an Absolution from his Oath Mat. Par. F. 1322. to make good the establishment at Oxford But the Barons resolutely insisted upon the Establishment and when the King sent Itinerent Justices into Herefordshire Ibid. the Barons of that County would not suffer them to execute their Office there as being contrary to the Provisions at Oxford which contrariety seems to lye in the King 's directing enquiries of misdemeanours to be judged of in the Countries when according to what was then Enacted the Inquisitions were to be return'd before the Parliament or at least such Council as was chosen in a Parliament But the King having procur'd an Absolution from his Oath thought himself free to act by the Counsels of Foreigners which his Great men would not bear Wherefore the Earl of Leicester and others met together in Arms at Oxford resolving either to dye for the Peace of their Country F. 1323. or to drive out the Foreigners The Foreigners met at the same place but finding themselves out-number'd and that the Lords were resolv'd to call them to account for their violations of the Government and make them swear to observe with them the Provisions made for the profit of the Realm they fled away by Night but were pursued by the Barons and forc'd to quit the Land Yet soon after this the King as the Historian says Anno 1260. 44 H. 3. 45 H. 3. by the evil Counsel of some fell from the pact which he had made with his Great Men betook himself to the Tower of London and compell'd the Citizens to swear to be true to him without regard to the terms before setled and rais'd what Forces he could Whereby it is evident That he began the War and that it was an open violation of his Contract made with the people at Oxford The Barons took Arms against him in their own defence F. 1331. Communiter prestitum and sent Messengers to him to entreat him to observe the Oath which had been sworn to by all Which Message he slighted at first but afterwards was prevail'd upon to consent that he should chuse one and the Barons another to arbitrate their differences the Arbitrators having power to chuse an Vmpire but that this should be respited till the King's Son Edward came from abroad When his Son came home he was so fully convinced of his Father's being in the wrong that he joyn'd with the Barons and they resolv'd together to drive
away all the evil Counsellors which the King perceiving again betook himself to the Tower But an agreement being made with some of the Barons by the Queens mediation the King having left the Tower in the Custody of one in whom he confided went a progress and found his Barons very quiet and peaceable but he soon discover'd that he was resolv'd to act without regard to the Provisions at Oxford Violently seiz'd several Castles and coming to Winchester displaced the Chief Justice and Chancellor which had been constituted by the Baronage F. 1335. the Barons met him at Winchester with a considerable Force upon which the King hastens again to the Tower of London The Barons one would have thought were now in a fair way of securing the performance of the last Contract made at Oxford but now the Clergy had their Game to play and acted it like Men who knew how to manage the Nation against its interest they keeping a correspondence with the Clergy of France were Authors of advice to the Barons That all things in difference should be referred to the Determination of the French King no doubt making the Barons believe that they had assurance of that King 's good Wishes for the Prosperity of England Both the King and Barons agreed upon the reference upon which as was to be expected the French King gave Sentence for the King against the Barons and for annulling the Statutes at Oxford with all Provisions Ordinances and Obligations thereunto belonging With this Exception that he intended not by that Sentence in the least to derogate from the Ancient Charter of King John granted to the Kingdom of England Qui habebant sensus exercitatos Which Exception says the Historian oblig'd the Earl of Leicester and others of sound Judgments to resolve firmly to keep the Statutes of Oxford which were founded upon that Charter And Matthew Paris condemns those as guilty of Perjury who upon this A fidelitate Comitis Leicestriae receded from their Faith to the Earl of Leicester who fought for Justice He grew so strong and so successful that the King came again to Terms with him and with the other Barons the Terms were these Mat. Par. f. 1327. That Henry his Brothers Son should be deliver'd out of Prison That all the Kings Castles throughout England should be put into the Custody of the Barons That the Provisions of Oxford should be inviolably observed That all Foreigners shall depart the Kingdom within a certain time excepting only them whose stay should be permitted by unanimous Consent as being faithful to the Kingdom Mat. Par. But notwithstanding all Pacts Promises and Oaths the King sends to have Windsor-Castle besieg'd but was disappointed by the Earl of Leicester After this a Parliament met at London in which several deserted the Earl and adher'd to the King so that he seem'd the strongest The Barons writ him a Submissive Letter declaring That they had no evil Intentions against his Person but complain of his Counsellors The King in his Answer justifies his Counsellors and says their Enemies are his The Barons on the King's side send a defiance to the others and particularly to the Earl of Liecester and to Gilbert de Clare Earl of Glocester and Hereford undertaking to prove them Traytors in the King's Court. Which Tryal the Barons thought they then had Reason to decline but the Barons offer the King 30000 l. for his Damage sustained by the War 1329. provided the Statute of Oxford may be observed but their Proposals not being accepted they came to a pitch'd Battel at Lewis wherein the King was totally routed and taken Prisoner and his Son Edward soon after yielded himself Upon which followed a form of Peace solemnly sworn to while the King and his Son were in Prison Pat. 48. H. 3. m. 6. dors but the Son making his Escape took the Advantage of a Difference between the Earls of Leicester and Glocester Vide Cave de Scriptoribus Eccles f. 716. His Character of that Bp. who animated the Barons Vir erat ut pietatem vitae Sanctimoniam reliquasque virtutes Christiano Praesule dignas praetermittam ingentis animi acris ingenii in re literariâ quantum ea ferebant tempora ad summum pen̄e apicem evectus totum encyclopediae circulum emensus in literis sacris pariter prophanis c. and over-powering Montfort gained an entire Victory at Evesham by the Death of that Earl who as Matthew Paris's Continuator tells us laid out himself for the Relief of the Poor the Assertion of Justice and the Right of the Kingdom and was incited to it by the Famous Grosthead Bishop of Lincoln who always affirmed that they who died in that Cause would be Martyrs The King being victorious no wonder that a Parliament called immediately upon it at Winchester condemned the Conquered for Rebels but it is evident that more Parliaments justified such as then were Rebels for being beaten Falkner's Christian Loyalty p. 349. and methinks Mr. Falkner does not argue with his usual fairness when he urges the unfortunate conclusion of the Barons Wars in the later end of H. 3. as sufficient evidence that if we look into the Records of the former ages we may thence discern that no Subjects whatsoever of this Realm had under any pretence an authority to bear arms against the King The Dictum de Kenelworth 51 H. 3. mentioned by him as an evidence of the sense of another Parliament besides that of Winchester is plainly an abatement of the rigours of that Parliament and was only a determination and award made after Simon Montfort the younger Vid. Brady's Hist f. 655. had submitted to any terms that should be imposed saving his Life and Limbs and excepting perpetual Imprisonment Mr. Falkner adds Anno 52. P. 351. The Statute of Marlbridge mentions it as a great and heavy mischief and evil that in the time of the late Troubles in England many Peers and others refused to receive Justice from the King and his Court as they ought to have done which is more expresly contained in the Original Latin than in the common English Translation Justitiam indignati fuerint recipere per dominum Regem curiam suam prout debuerunt consueverunt and did undertake to vindicate their own Causes of themselves P. 352. Now to declare that all Peers and all other Persons ought to have received Justice only from the King and his Courts and not to revenge themselves or be Judges in their own cases doth more especially condemn the entring into War its self which is an Undertaking founded upon a direct contrary Proceeding And thus we have a sufficient Censure in our English Laws upon that War against the King which those who have pleaded for the Lawfulness of Subjects taking Arms do account the most plausible Instance for their purpose as our Chronicles can furnish them with Answer But to any who consider