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
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
modum absolutae dominationis disposuisse All which is most plain and justified infallibly by Doomesday Book made in that Kings Reign and in other subsequent Records where the title and claim of many common persons to their own and Ancestors possessions both in his time and in the time of the Saxon Kings are clearly allowed but if King William had made an absolute and universal Conquest of the Realm in the modern sense how could such Titles have held or who would or durst have made such claim even against the King himself would he not have seized all into his own hands and granted the Conquered Lands to others and his grant could not have been avoided by any Englishman who had the inheritance and possession and lived in peace before and at his coming in and no title could be derived but from or under him at least none could have been maintained against his Grant But that the contrary was true will evidently appear if we consider 1. That it is recorded in Doomesday Book that King William had certain Lands in Demesne viz. the Lands which were in the hands of King Edward and entitled Terrae Edwardi Regis and other Lands which were forfeited to him by those who took part with Harold entitled Terrae Regis 2. William the first having given away Sharnborn in Norfolk to Warren a great Favourite one of his Normans Edwinus de Sharnborn being an Englishman and true owner of the estate demands his right in open Court before the King upon this reason of Law that he never was against the King either before or after he came in whereupon the King vinculo juramenti astrictus gave judgment of right against the Norman and Sharnborn recovered the Lordship Sir Henry Spelman out of an antient Manuscript concerning the Family of the Sharnborns in Norfolk hath it thus Edwinus de Sharborne quidam alii qui ejecti fuerunt è terris suis abierunt ad Conquestorem dixerunt ei quod nunquam ante Conquestum nec in Conquestu nec post fuerunt contra ipsum Regem in consilio auxilio sed tenuerunt se in pace Et hoc parati sunt probare quo modo ipse Rex vellet ordinare Per quod idem Rex fecit inquiri per totam Angliam si ita fuit quod quidem probatum fuit propter quod idem Rex praecepit ut omnes qui sic se tenuerunt in pace in forma praedicta quod ipsi rehaberent omnes terras dominationes suas adeo integre in pace ut unquam habuerunt vel tenuerunt ante Conquestum suum This is cited almost as the only case or act of favour the Conqueror did but that is a great mistake for many other instances I could give of this nature all acts of Justice and right as appears in Doomesday Book much more may be said upon this subject I will only add the Judicious assertion of a great Lawyer and Judge in Edward the Thirds time admitted and agreed as a rule of Law and truth by the Judges and transmitted to posterity Le Conqueror saith he ne vient pas pur ouster eux qui avoient droiturell possession mes de ouster eux que de lour tort avoient occupie ascun terre en desheritance del Roy son Corone It was spoken upon an objection made in a Quo Warranto against the Abbot of Peterborough concerning a Charter granted by King Edgar to that Abbey which the Kings Council would have avoided upon this pretence for want of a better because by the Conquest all Franchises were devolved and come to the Crown 2. King William claimed the English Diadem Jure haereditario from Edward the Confessor which both his own Laws Charters and the Charters of his two Sons William and Henry do fully prove There are some indeed that mention that he obtained the Crown ore gladii but that must be understood quod jure belli contra Harolaum ipse acquisivit as a Manuscript Historian sayes 3. He did not make an actual Conquest by his Arms when he came in of the fifth part of the Nation for the Pope having sent him a consecrated Banner and a Bull of Excommunication against the Bishops and Clergy if they opposed him in adhering to King Harold and he having got the Victory at Hastings and the Clergy with several of the Nobility whom he had purchased to his part both by money and great assurances of preferment and other advantages basely and treacherously deserting Edgar Etheling a soft and weak Prince yet right Heir to the Crown at length upon Williams declaring that he would confirm the Laws of Saint Edward he was electus à Clero Populo and with all the Ceremonies and Solemnities then in use was Crowned at Westminster the whole Nation submitting to him But hear what the Historians of those times say Londoniam convenientibus Francis Anglis ad Nativitatem Domini illisque omnibus concedentibus Coronam totius Angliae Dominationem suscepit Die ordinationi decreto locutus ad Anglos condecenti sermone Eborac Archiepiscopus sapiens bonus eloquens an consentirent eum sibi Dominum coronari inquisivit Protestati sunt hilarem consensum universi minime haesitantes ac si coelitus unâ mente datâ unâque voce Anglorum voluntati quam facillime Normanni consonuerunt sermocinato apud eos a◠sententiam percunctato à Constantini Praesule sic electum consecravit Archiepiscopus imposuit ei Diadema ipsumque regio solio c. Ante Altare S. Petri Apostoli coram Ciero Populo jurejurando promittens se velle Sanctas Dei Ecclesias Rectores illarum defendere necnon cunctum Populum sibi subjectum juste regali providentia regere rectam legem statuere tenere rapinas injustaque judicia penitus interdicere Exacto prius coram omni populo jurejurando quod se modeste erga subditos ageret aequo jure Anglos Francos tractaret Pursuant to all which and to fix himself more sure in that his new-got Chair of Soveraignty he by his Magna Charta or Great Charter grants and confirms the Laws of Edward the Confessor Willielmus etiam Rex cui Sanctus Edwardus Regnum contùlit leges ipsius Sancti servandas esse concessit saith Sir Henry Spelman But now we will set down a branch of the Charter which runs thus Volumus etiam ac firmiter praecipimus concedimus ut omnes liberi homines totius Monarchiae Regni nostri praedicti habeant teneant terras suas possessiones suas bene in pace libere ab omni exactione injusta ab omni Tallagio Ita quod nihil ab eis exigatur vel capiatur nisi servitium suam liberum quod de jure nobis facere debent facere tenentur prout statutum est ets illis à nobis datum concessum jure
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
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
ire de rancour de male volente c. The King and Prince having undertaken the Crusado for the Holy Land quia tamen Praelatis Magnatibus Communitati Regni non videtur expediens neque tutum that they should be both out of the Kingdom istis temporibus it was agreed the Prince should go and a Subsidy was granted to the Prince by the Parliament If one should shew the Authors of the novel opinion only these Records and thereupon ask them who the Communitas mentioned in these Records after the words Praelati Barones Magnates were I doubt not but they would say Knights Citizens and Burgesses because they are after the pretended inception of 49 H. 3. but then I desire to know what authority they can shew why the Communitas in 29 32 37 48 H. 3. should not be a part of the Parliament as much as of 49 51 54. of that King since the words or phrases of both are alike in the Records For I do not think it a true way of reasoning That because the notion of 49 H. 3. is generally published by our now Historians and so believed Ergo it unquestionably was so and has always and in all ages been distinctly known and believed The SEVENTH ARGUMENT From the defect and loss of Parliament Rolls of H. 3. and E. 1. and from the universal silence of all Records and our antient Historians contemporary and succeeding 49 H. 3. till our days IT is true indeed for any thing yet appears the Parliament Rolls of H. 3. are all lost or destroyed though references are made to them by several Clause and Patent Rolls of H. 1. and H. 2. yet no direct Writ of Summons ad Parliamentum is extant of that time either of the Lords or Commons so M r Pryn till the Dorse of the Clause Roll 49 H. 3. in a Schedule affixed thereto where there are Writs for Electing and sending to a Parliament at London two Knights Citizens and Burgesses and Barons for the Cinque-Ports and likewise Summons to the great Lords But if that Roll of 49 H. 3. and Rot. Claus. 22 E. 1. had been destroyed as many others of that time were then had there been no footsteps or testimony left us on Record yet discovered of any formal Summons to Parliament of them or the Prelats and temporal great Lords till 23 E. 1. though several Parliaments were in the interim no less than twelve as the Printed Statute Books tell us And the Commons expresly said to be present at some and implyed in all if the Phrase of Commune Concilium Regni implies so much which 〈◊〉 think is unquestionable when compared with the Statute of Westm. 1. made 3 E. 1. which was not eleven years after 49 H. 3. wherein the constituent parts of the Commune Concilium Regni are enumerated and expressed the Statute being made Per l'assentements des Archievesques Evesques Abbes Priors Countes Barons tout le Comminalty de la terre illonques summones Now because from that one Record of 49 H. 3. being the only Roll as yet found out it should be wonderfully observed and from thence infallibly concluded and nicked and by an ominous and influential Asterism of Rebellion and Treason marked that the very first Writs whereby the great Lords are said to be also first Summoned to send two Knights Citizens and Burgesses for each County City and Borough 〈◊〉 Parliamentum in Octabis Sanâ—ti Hillarii were made in this very year at that very Crisis of time nay tested on such very days when the rebellious Barons after the Battel of Lewes had the King and Prince in their power and exercised Regal Authority in his name under good favour seems not at all satisfactory and convincing to me until they give more certain and greater testimonials and evidence and answer these few Records If the Epocha of the Knights Citizens and Burgesses or Commons as now called and distinguished from the great Lords being first admitted a part of the Parliament and Legislative Power had such a Creation and Origine it is more than a wonder though the Parliament Rolls be destroyed that the Lieger Books Charters or Historians of that time either National or Foreign of which there are not a few or our antient Lawyers Bracton Britton Fleta and Hengham had not amongst many Narratives of far less moment and weight given posterity a remark or some short hint or memorial of so suddain so great and so universal a change or Catastrophe of the whole constitution and ancient frame of the English Government as that must unquestionably be admitted to be or some subsequent Chronologer had not so much as dreamed of it till of late or that branch in the ancient Coronation Oath of our Kings demanded by the Archbishop had not been omitted or ne ver administred which runs thus Concedis justas leges consuetudines esse tenendas promittis per te esse protegendas ad honorem Dei corroborandas quas Vulgus elegerit secundum vires tuas Respondebit Rex Concedo promitto The word Elegerit being admitted to be of the praeterperfect tense it certainly shews that the peoples Election had been the foundation and ground of antient Laws and Customs and the term of justas leges seems to allow a liberty of debate reason and argument so much as might be of efficacy and force to demonstrate and convince that the Laws so required by the Commons of the King were just and reasonable the debate and consideration of which certainly was never nor ever could be intended to be done in the diffusive capacity of all the Commons of England separatim but in an intire or in an aggregat body that is in their Communia Concilia or Parliaments And with this agrees the Statute of Provisors An. 25 E. 3. which saith Whereupon the said Commons have prayed our Soveraign Lord the King that upon the mischiefs and damages which happen to his Realm he ought and is bound by his Oath with the accord of his people in his Parliament thereof to make remedy and law and removing the mischiefs and damage which thereof ensue And this they say sith the right of the Crown of England and the Law of the Realm was such Nor indeed can I apprehend any colourable pretence much less a probable reason that if the Barons had 49 H. 3. usurped the Soveraign power into their hands they should 1. So easily and speedily divide and share it with the Commons constitute a new Court of Parliament and make them essential and coordinate with themselves in the Legislative Power sure we know it is natural for all Courts ampliare non diminuere Jurisdictionem 2. That at that Parliament the numerous Barons as they stile them should but summon 23. of their own Order when the Archbishops Bishops Abbots Priors and Deans made 120 if we must be concluded by the Records If there were then
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