Second He gives us in his Prologue to his Treatise of the Laws of England this Testimony Leges namque Anglicanas liceâ—â—on Scriptas Leges appellari non videtur absurdum cum boc ipsum Lex sit quod Principi placet Legis habet vigorem â—as Scilicet quas super dubljs in conâ—ilio definiendis Procerum quidem consilio Principis accadente Authoritate constat esse promulgatas So likewise Bracton in his very first Chapter speaks much to the same purpose Cum Legis vigorem habeat quicquid de Consilio de Consâ—nsu Magnatum Reipublicae commâ—ni Sponsione Authoritate Principis prâ—ceâ—â—nte justè fuerit definiâ—um approbatum And also in his third Book Chap. 2. When he speaks of the Antient manner of making Laws in England he says Quae quidem fuerint approbate concensu utentium Sacramento Râ—gum confirmaâ—ae non possunt mutari atâ— destrui fine communi consensu utentium consilio eorum quorum consilio Consensu fuerint promulgata Where you may see these Ancient Authors plainly declare that nothing hath the force of a Law in this Kingdom but what is approved of and consented to by all Orders of Men either by themselves or their Representatives And which is very Remarkable Bracton supposes the King's Authority or Royal Sanction of a Law may precede the Consent of the Great Council which quite destroys that Notion That it is the Kings giving his last Assent which gives it the Essence and Vigour of a Law And with these more Antient Sages of the Law Fortescue also agrees in his 9th Chap. Dâ— Laudibus Legum Angliae where he says Rex Angliae Populum gubernaâ— non mera potesâ—â— to Regid sed politica Populus enim ijs Legibâ— guberâ—â—tur quas ipse fert c. What follows is word for word the same with what Bracton had before in his first Chap and therefore needs not to be Repeated so likewise in the 18 Chap. speaking of the Absolute Legislative Power of Kings in some other Kingdoms he thus proceeds Sed non Sic Angliae Statuta oriri possunt dum nelum Principis voluntate sed toâ—ius Regni Assensu ipsa conduntur quo Populi laesuram nequiunt vel non eorum Commodum procurare But if they after prove inconvenient he immediately adds Concito reformari ipsa possunt sed non fine Communitatis Proterum Regni illius Assensu quali ipsa primitùs emanarunt To which I may also add an Authority out of that Learned Author St. German who in his Dialogue called the Dr. and Student written in Latin in the 10th Chap. Entituled de Sexto fundamento Legis Angliae The Student thus speaks Sexium Fundamentum Legis Angliae sâ—at in diversis Statutis per Dominum Regem Progenitores suos per Dominos spirituales Temporales per Communitatem totius Regni in Parliamentis Editis ubi Lex Rationis Lex Diviâ—a Consuetudines Maxima sive alia fundamenta Legis Anglia prià s Sufficere minimè videbantur Where you see the Legislative Power is here Attributed to the Lords and Commons joyntly with the King And therefore my Lord Coke in his Notes upon the Statute of Westminster I calls it a Compleat Parliament as consisting of all the Estates necessary thereunto for says he a Parliament concerning making or enacting Laws Consists of the King the Lords Spiritual and Temporal and Commons and 〈◊〉 is no Act of Parliament unless it be made by the King Lords and Commons M. I shall not much concern my self with what your Common Lawyers either Ancient or Modern have writ upon this matter much less what Sir Edward Coke a known Enemy to the Kings Prerogative doth maintain Since I have as good or a better Authority than he viz. that of the Year-Book of 22 Ed. 3. Wherein it is expresly declared by divers Earls and Barons and by all the Justices in the Case of one Headlow and his Wife who had a Suit with the King That the King makes the Laws by the Assent of the Lords and Commons and not the Lords and Commons and that He could have no Peer in his own Land and that the King ought not to be Judged by them So that it is I think evident that the Laws are primarily and properly made by the King and that the two Houses have a Cooperation but no Co-ordination of Power with him And though at this Day I grant that Custom hath made the Assent of the Lords and Commons necessary to the passing of all Laws yet it is still the King's word or le Royâ—le veulâ— that makes them so and I much doubt whether even this were part of the Ancient Constitution of this Kingdom or not or proceeded at first from the Gracious Favour and Permission of former Kings as I could shew by the whole Series of Councils in the Saxon times if it were not too tedious to mention them particularly therefore I shall only Select some of the most Remarkable For though I confess the English Saxon Kings performed all Great and Considerable things by the Counsel and Advice of their Bishoâ—s and Noblemen comprehended under the general names of Wits yet you will find by the Titles of almost all the Councils in Spellman Lambard and that these Kings alone made their Laws though by the Advice and Council of their Wittena Gemote which was then no other than the King 's Greater Council Since He called what Great Men and Bishops he pleased to it and omitted the rest And it is never mentioned that they were made by their Consent as necessary thereunto Nay sometimes we find that some of the Ancient Saxon Kings made Laws without the Assent of their Great Council Thus Offâ— King of the Mercians being at Rome out of his Royal Munificence gave to the Support of the People of his Kingdom that should come thither a penny to be paid Yearly for ever out of every Family by all whose Goods in the Fields exceeded the value of Thirty pence And this He made a perpetual Constitution throughout all his Dominions excepting the Lands Conferred upon the Monastery of St. Albans This Imposition and Law continued a long while in force though we find it not Confirmed by any great Councils in the time of his Successors only in the Laws of King Edgar and King Edward it is enjoyned to be paid as the King's Alms which implies it was the King's Gift and that Solely without the consent of a Great Council But to give you a more particular Proof of the Supream and Absolute Power of our Saxon Kings as well during the Heptarchy as afterwards in making ad establishing Laws I shall begin with the first we have extant which are those of Ina King of the West-Saxons who began his Reign Anno. 712. In the Preface to his Laws we find it thus express't which I shall render out of the Saxons Copy Published by
the Aldermen or Burgesses of Towns Represent those which we now call the Commons And supposing that then there were no Knights of Shires yet these being then the only Proprietors of any considerable Estates of Land in the Nation might very well represent all their Vâ—ssals or Vnder-Tenents as Tenents for years and at Will are at this day by the Knights of Shires tho they have no Votes at their Elâ—ction To conclude tho I grant that the King 's of England are the Fountain of that Honour which we call Peerage Yet it is only in Pursuance of that Ancient Constitution which their Ancestors brought out of Old Saxony and Normandy along with them as the firmest defence of Kingly Power against the Insolency and Encroachments of the Common or Meaner sort of People as well as Tyranny in their Princes And therefore in all Monarchies where there is no Hereditary Nobility the Prince hath no surer â—ay to maintain his Power than by Standing Armies to whose Humours and Pactions he is more Subject and is also more liable to be Murdered or Deposed by them when discontented with him than ever any limited Prince yet was or can be by his Nobility or People As I could shew you from a multitude of Examples not only from the Roman but Moorish Arabick and Turkish Histories and therefore to constitute a lasting stable limited Monarchy as ours is it must be according to the Model I have here Proposed M. I shall not contradict the latter part of your Discourse but I must freely tell you that if as you your self grant there were no Knights of Shires in the Saxon times I cannot see how those we call the vulgar or Commons of England had then any Representatives in the Great Council since those Thanes or Lords of Mannors whom you suppose to have Represented their Tenants or Vassals were never chosen by them and consequently could not properly be their Representatives But I think it will be easy enough to prove that none of your Inferior or middle Thanes but only the Chiâ—f or Superior had places in those Assemblies So that these Feudal Thanes or such as held of the King in Chief by Military Service were of the sam Kind with them that were after the Norman times Honorary or Parliamentary Barons and their Thainlands alone were the Honorary Thainlands and such as were afterwards Parliamentary Baronies Nor can I find any Footsteps in our Ancient English Histories of Cities and Buroughs sending any Representatives to those Great Councils So that admit I should own at present that the Bishops and some Great Abbots had from the first Setling of Christianity in this Island an Indisputable place in the Great Councils and likewise that the Earls Aldermen or Great Nobility had also Votes in those Assemblies and that the Chief Thanes or less Nobles had also their places there by reason of the Tenure of their Estates yet certainly the House of Commons was of a much later Date and owed its being either to the Grace and Favour of our Kings of the Norman Race or else to those that had Vsurp't their Power And this I think Dr. Brady hath very well proved against Mr. Petyt and I think I could convince you also of the Truth of it by his as well as other Arguments were it not now too late to enter upon so long a Subject F. Therefore pray let us defer any further Discourse of this Question till the next time we meet wherein I hope I may shew you that if you owe that Opinion to the Doctors Arguments he hath led you into a very gross mistake And I shall only at present take my leave of you and bid you good night M. I wish you the like ADVERTISEMENT A Brief Discourse of the Law of Nature according to the Principles and Method laid down in the Reverend Dr. Cumberland's now Lord Bishop of Peterborough's Latin Treatise on that Subject As also his Confutations of Mr. Hobb's Principles put into another Method With the Right Reverend Author's Approbation FINIS Bibliotheca Politica Or A DISCOURSE By way of DIALOGUE WHETHER The Commons of England represented by Knights Citizens and Burgesses in Parliament were one of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. Collected out of the most Approved Authors both Ancient and Modern Dialogue the Sixth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth and Fifth Dialogues 1693. Authors made use of and how denoted 1. Mr. Pettit's Ancient Right of the Commons of England Asserted P.R.C. 2. Dr. Brady's Answer thereunto Edit in Folio B. A. P. 3. The said Doctor 's Glossary at the end of it B. G. 4. Anamadversions upon Treatise Ianii Anglorum forces novo B. A. I. 5. The Author of Ianus c. his Confutation of the said Doctor entituled Ianus Anglorum ab Antique I. A. A. 6. Dr. Brady's Preface to his History B. P. H. 7. Dr. Iohnston's Excellency of Monarchical Government I. E. M. G. THE PREFACE TO THE READER HAving in my last Discourse treated of the Legislative Power of this Kingdom as also the Ancient Constitution of our English Government by great Councils or Parliaments the former of which questions I should scarce have dwelt so long upon had I then known of a Learned Treatise now 〈◊〉 to be publisht on that Subject I am at last arrived at the hardest and most important though perhaps in the Iudgment of some the driest and most unpleasant part of my Task viz. Who were anciently the constituent Parts or Orders of Men who made up thâ—se Assemblies That the Bishops Abbots Priors Earls and Chief Thanes or Barons were Principal Members is granted by all Parties but whether there were from the very Original of these Great Councils nay till long after the coming in of the Normans any Representatives for the Commons as we now call them in distinction from the Lords Spiritual and Temporal is a doubt which as it was for ought I can find first raised by an Italian who writ the History of England in the last Age so hath it been continued by some Antiquaries of our present Age though the first that ever appeared to prove the contrary was a Treatise published by James Howel in the Cottoni Posthuma under the Name of Sir Robert Cotton about 1654. but whether it was his or no I know not only it was supposed to be so by Mr. Pryn in his Preface to the Collection of Records which he published under the Name of the same Author in 1657. and after him this Notion of the Bishops Lords and other Tenants in Capite being the Sole Representative for the whole Nation in those Councils was next printed in the Second part of Sir Henry Spelman's Glossary Tit. Parliamentum where King John's Charter is made use of at the main Argument to prove that Assertion The next who appear'd in Prâ—nt on
with the Advice and Assistance of their VVites or Wise-men simply without mentioning any particular Orders of men whatsoever And when any Rank or Degrees of men are particularly mentioned they are only the same before rehearsed both Ecclesiasticks and Laicks 2. I note that it cannot be denied but that in every one of these Wittena Gâ—motes Micel Synods Micel Gemotes or Great Councils where the Laws are said to be made only by the King with the advice of his Wites or Sapientes without particularizing any degrees of Persons the Bishops and Abbots for the Spiritual Nobility and the Eorls or Aldermen and Thanes for the Temporal were present at the making of them as also the Judges if there were any of the higher Class other than Bishops Aldermen and Gereves or Praepositi 3. I note that it follows from thence that these all jointly were the Sapientes where there are only Wites or Sapientes in general named without reciting any particular Orders or Degrees of Men. Now if you can shew me from as good Authorities as I have here produced that any of the Commons sate in these Great Councils at least to represent the Body of the Commons among the Saxons I will grant that during the Saxon Government the Freemen or Commons of England as now called and distinguished from the Great Lords were an essential constituent part of the Common Councils of those times F. To return you as short an Answer as I can to those Authorities you now cite I must in the first place premise That tho I grant all Nobility among the ancient Germans Saxons and Franks who were but so many Stirps or Branches of the Gothic Nation were at first wholly Military yet it is a very great mistake and savours of the Prejudices of the Age and Country we live in to imagine that anciently there were the same Distinctions between Peers or Noblemen and Gentlemen whom we now call Commoners as there are now For if we go but over into France or Germany we shall find no difference there between the greater and the less Nobility and a Gentleman is as noble as a Dâ—ke or a Marquiss And if we pass farther into Denmark and Norway from whence most of the Danish Laws are supposed to come it is certain that but few years ago there were no such Titles among them as Earls or Barons every Lord of a Town or District being that which they call an Adelman or Nobleman And so I suppose it anciently was among the English Saxons The Word Athel or Adel comprehending to speak in our present Dialect all Degrees as well Noblemen as Gentlemen And for this I can give you the Authority of an Ancient Author viz. Paulus Warnefridus de gestis Longobardorum who speaking of these Adelmen or Adelings tell us Sic and eos quidam Nobiles prosapia vocabantur So likewise Sir H. Spelman in his Glossary Tit. Adelingi Tit. p. 9 10. writes thus Anglorum legibus dici pro nobilibus in genere quod nec dum apud Germanos antiquatum est qui omnes nobiles Aedelmen vocant a Saxonico Aedel pro nobili And Mr. Selden in his Titles of Honour makes the Word Aethelum to signifie all one either Gentlemen or Noblemen Besides Adam of Bremen and Nitardus likewise both Ancient Historians divide the Saxon Nation into three different Degrees or Orders viz into Athelings i. e. Nobles Frilings i. e. Freemen and Lazzos i. e. Villains Bours or Bondmen Besides which Noblemen or Gentlemen there was likewise another sort of men who tho of an inferior Rank yet as Freemen and having a considerable share of the Riches and Strength of the Nation in their hands had likewise a Place in the Great Councils as well as the former And these were the Aldermen or other Magistrates of Cities and Burroughs and in this they resembled the German Diets whose constituent Members were according to Gonterus an Ancient German Poet Praelati Proceres missisque potentibus Urbes But since this is a Dispute about the Signification of Words in what sense they were used in that Age we are now treating of it will not be inconvenient to examine from the most Learned Glossarists the Ancient Signification of those Words which are in dispute between us And therefore since we are agreed about the meaning of all other Words except these viz. Aldermen Thanes Wites Magnates Optimates and Principes Preceres or Primates let us examine each of their Ancient Significations To begin then with the Word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man Alderman which Word was of a very general Signification For Sir Hen. Spelman in his Glossary Tit. Alderman tells us that there was Aldermannus Regis Comitatus Civitatis Burgi c. de quorum potestate non facile est definire Mr. Lambard renders the Word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man in Latin Senator i. e. one that had place in the Great Council and so doth Mr. Somner in his Saxon Dictionary from whence you may learn that this Word is of a large signification and might comprehend such as in latter times were called Commons to distinguish them from the Lords or higher Nobility and could not exclude them Verstegan renders this Word thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 So written in our ancient Language is properly an Elder or Senior yet an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man which we call now an Alderman was such in effect among our Ancestors as was the Tribunus Plebis with the Romans that is one that had chief Iurisdiction among the Commons as being a Maintainer of their Liberties And if so such persons must certainly have had a place in the Great Council as Commoners and therefore must from the reason of the thing signifie something more in those times than an Earl or great Officer of the King only So likewise that the Word Thane comprehended more than the Kings Great Feudal or Military Tenents may appear by these Interpretations of it which our Antiquaries have given us The Industrious Mr. Somner in his Glossary at the end of the X. Scriptores as also Mr. Selden in his Titles of Honour do both agree in the difference I now make between the Greater and the Less Thanes the former being called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Thani Regii the other called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Mediocres vel Inferiores Thani Middle or Less Thanes who were Maneriorum Domini Nobiles miâ—â—â—es Vavasores nonnunquam liberi tenentes with whom Sir H. Spelman in his Glossary agrees Thanorum duo erant genera Majores quos Thainâ—s Regis appellabant nos Barones Regis Thaini Simpliciter seu Thaini Minores quâ— iidem erant qui Barones Minores hoc est Maneriorum Domini Nobiles minores nonnunquam Liberi Tenentes nuncupantur So likewise Mr. Lambard in his Glossary thus Thani autem appellatione viri interdum Nobiles interdum liberae conditionis homines interdum Magistratus
errant Slaves and Vassals notwithstanding their Tenure in capite as the meanest person of the Kingdom who was taxed as you would have it at the Will of his Superior Lord which whether so great and powerful a Body of men would ever have sufferd I leave to any indifferent person to judge M. I grant this may now appear somewhat hard yet since it was the receiv'd Law and Custom of the Kingdom it was not then look'd upon as a grievance and it was then no more unjust than it is now that persons under forty Shillings a year tho of never so good Estates in Money or Stock or that Tenants for years or for the Life of another should at this day have no Votes at the Election of Knights of Shires and consequently be without any Representatives in Parliament of their own Choice and yet be subject to all Laws and Taxes tho never so great when made and imposed by the King in Parliament And I am able to give you divers good Authorities to prove that even London it self and all other Cities and Towns which held of the King in capite and were called his Demesnes were often taxed by the King and his Council out of Parliament before the Statute De Tallagio non concedendo And I think Dr. B. hath proved this beyond exception in his Animadversions upon Mr. A's Iani Anglorum facies noâ—e and he there gives us the Record it self of 39 Hen. III. now in the keeping of the King's Remembrancer of the Exchequer That the King did that year as he had divers times before Talliate or Tax all his Demesne Lands in England and then likewise demanded of the City of London the sum of 3000 Marks in name of the Talliage or Tax so laid And the Mayor and Citizens at last yielded after a great Contest It appearing upon search of the Rolls in the Ezchequer that the Citizens of London had been several times before so taxed in the Reigns of King Iohn and the King himself and so they payed at last the Sum which the King demanded By which you see that the greatest and richest Cities and Towns in England were taxed at the King's Will nay I think I am able to prove were it now necessary that the whole Kingdom was often taxed by the King and his Council only before the granting of King Iohn's Magna Charta and the Statute de Tallagio non concedendo above mentioned But to return to the Matter from which you forced me to digress I think nothing is more plain than that our Ancient Parliaments were only the King's Court Baron for the dispatch of the Publick Affairs of the Kingdom and in which as in the Lesser Courts Baroa or Courts of Mannor the Suitors or Tenents were together with the Lord or his Stewards the sole Judges So that at first after the Conquest it belong'd to the King alone as the Supreme Lord of the Kingdom to appoint or call which or what sort of those Tenants be pleased to attend him with their Aid and Advice at his Common Councils or Parliaments And I think nothing is more evident as I shall prove more at large from our Ancient Histories Records and Statutes then that before the 49th Hen. III. and some years also after that time none but the Bishops Abbots Earls and Greater Barons and some of the Less called in King Iohn's Charter the other Tenents in capite then constituted the whole Body of the Parliament under â—he Titles of Baronagium Angliae or Communitas or Universitas Baronagii Angliae And for this I can give you so good Authorities that nothing but more cogent and evident Proofs can bring me from this Opinion And therefore I must tell you I do not value those loose and inconsiderate Expressions of Historians either before or after that time F. I see the Testimonies of Historians are of no credit if they make against your Hypothesis but I shall show you your Mistakes about the King's Taxing anon but the main force of your Argument lies in the signification of those Latin Words you have last mentioned and which I must needs tell you I think you take in too strict a sense For first as to the Word Baro I grant it was not much in use before William I. obtained the English Diadem Baro says Camden Britanni pro suo non agnoscum in Anglo-Saxonicis legibus nusquam comparet nec in Aâ—frici Glossario Saxonico inter dignitatum vocabula habetur For the English Saxons called those in their own Language Aealdermen which in Latin were named Comites and by the Danes Earls but it was of so extensive an import in its signification that we read of Aldermani Regis Aldermani Comitatus c. as I have already shewed you So that according to the strict Sense of this Word we had whole Regiments of Earls whose Titles seldom if at all descended Hereditary till the Confessors Time and after William I. the Saxon Words Aealderman and Thegnes began to be changed and in the room of Aldermanni Thani we find Comites Barones as in all our Ancient Laws and Histories Nor was the Word Barones only taken in those days for Great Barons and Tenents in capite but also for the Inferior Barons or Free Tenents which held great Estates of other Mesne Lords as well as of the King by certain Services and to whom the Great Lords or Earls as Sir H. Spelman shews us in his Glossary Title Baro often directed their Charters Barombus Fidelibus nostris tam Francis quam Anglis and we there also read some Quotations from the old Book of Ramsey Abby wherein the Barons of the Church of Ramsey as also the Milites and Liberi homines thereof are particularly mentioned all which as this Learned Author tells us non de Magnatibus sunt intelligenda sid de Vassallis feodalibus note Scil melioris And the same Author says a little lower that Barons are often taken pro liberè Tenentibus in genere hoc est tam in Soccagio quam per servitium Militare M. What then do you suppose that all the Freeholders in England by whatsoever Tenure they held appeared in Person in Parliament before the time Sir H. Spelman in his Glossary and Dr. B. Assign for the summoning of the Commons to Parliament At this rate every Yeoman or Petty Freeholder was a Baron so that this Assembly might then consist of above 50 or 60 Thousand Persons Since Spot in his Chronicle tells us that William the Conqueror reserved to himself the service of about 60000 Knights Fees which by the time I suppose might have been divided into many more lesser ones by Co-heirship or by sale and otherwise parcelled out by the King's License into Half-Knighs-Fees Third Part of Fees Fourth Part of Fees Eight Parts Sixteen Twenty Thirty and Forty Parts of Fees and so have been increased into as many more And these besides the Tenants in
England and Scotland there was no difference in Point of Priviledges as to being taxed or having Voices in the great Council of the Kingdom between the higher Nobility such as had the Titles of Dukes Marquesses and Counts and simple Gentlemen whereas in England it has been always otherwise at least since the Conquest and the Earls and Barons had by 〈◊〉 Tenures Places as Lords or Peers in the great Council of the Kingdom and so made a distinct Body from the rest of the People whereas in other Countreys the higher Nobility and Gentry are reckon'd as all one Estate and therefore it was but Reason that the rest of the Inferior Nobility or Gentry should have their Representatives in this great Council or Parliament or otherwise they would have been as very Vassals as to their Estates to the great Barons and Tenants in Capite as the Boors in Germany or the Paisants in France were to their Lords by whom they were taxed aâ— their Pleasures which they never were in England as we can find either from History or Records So that tho I grant that it is the municipal Laws of each Kingdom or Nation that must determine what are the governing part of the People in those Countreys yet tho that was not absolutely the same in all of them as it is in England yet we find it so in the main and the Representatives of the Cities and Towns do sufficiently assert the Right of the Plebians or Common People who make the 3d Estate in those great Councils But I must here except Sweden in which it is certain that the meer Rusticks or Boors had always their own Deputies in their Dyets as well as the Cities and Towns and if Sweden had this priviledge I cannot see why the English Gentry and Yeomanry who make but one body of Commons might not have had the like till you can shew me more sufficient proofs to the contrary M Well Siâ— I shall consider of what you say but since it grows late that we may wind up this Conversation as fast as we can give me leave to tell you that tho' I should admit all that you have hitherto averred for truth and that we should grant the Commons of England to have been as ancient a part of the great Council or Parliaments as any of the other two what is that to the main Point in question between us viz that of Non-resisâ—ance of the King upon any account whatsoever or how can you justsfie those of the Clergy Nobility and Gentry of the Church of England for taking up Arms against the King and contributing so much as they have done to the driving him away and in bringing things to this confusion they are now in since let your Constitution of great Councils and Parliaments be never so ancient let us also for once suppose them as you do to have a share in the Legislative Power of the Nation yet how can this authorize them much less any private persons out of Parliament to take up Arms against the King or those commissioned by him since the whole current both of Common as well as Statute-Law runs directly against you and all with one consent assert that the disposal of the Militia or Military Force of the Kingdom has been even so absolutely in the King's power and at his disposal that no man can without being guilty of Treason take up Arms whether offensive or defensive without his Commission to authorize him to do it so that no Government in the World is more averse to all forcible Resistance than our own the King having been even from your time beyond memory so fully possest of the whole Militia or power of raising offensive or defensive Arms in this Kingdom that it is expresly forbid by the Statute of the 7th Ed. I. against coming to Parliaments and Treatises with force of Arms in which the King sets forth That in the last Parliament the Prelates Earls Barons and the Commonalry in Latine Communitas or Body of the Realm have said that to us i e. to the King it belongeth and our part it is through our Royal Seignâ—ury to defend that is in old French to forbid force of Armour and all other force against our Peace at all times when it shall please us and to punish them according to our Laws and Vsages of our Realm and hereunto they are bound to Aid us as their Soveraign Lord as oft as need shall be From whence you may observe that it is the King's Prerogative to forbid all manner of Arms or Armed force within the Realm so that no man can lawfully Arm himself without his Authority And this is further confirm'd by the Statute of 25 Ed. the Third concerning Treasons wherein it is declared without any excepted Cases to the contrary That to Levy War against our Lord the King in this Realm or to be adherent to the King's Enemies in his Realm giving them Aid or Comfort in the Realm or elsewhere is Treason And Sir Edward Coke upon this Statute saith thus That this was High Treason before by the Common Law for no Subject can Levy War within the Realm without Authority from the King and if any man Levy War to expulse Strangers to deliver men out of Prisons to remove wicked Councellors or against any Statute or to any other End pretending Reformation on their own heads without Warrant this is Levying of War against the King because they take upon them Royal Authority From which Statute as also from your own Oracles Sir Ed. Coke 's Interpretation of it you may observe that it is not only Treasâ—n to make War against the King's Person but to take Arms to make any Reformation or Alteration in Church or State without the King's Authority nor can any Subject of England justifie the taking Arms upon any account whatsoever unless it be by the King's Commission and therefore all the Judges of England in the Case of Dr. Story who was Executed for Treason in the Reign of Queen Elizabeth did with one consent agree that the very Consultation concerning making War against the Queen shall be interpreted a making War against her Person and supposes a design against her Life So that nothing seems plainer to me than that by the Ancient as well as Modern Laws of England all defensive as well as offensive Arms are expresly forbidden and condemned F. I think I shall be able to make out notwithstanding what you have now said that all Resistance of the King or those commissioned by â—im is so far from being Treason as you suppose that it is every mans duty to oppose him in case he goes about to set up instead of a Legal Monarchy a Tyrannical Arbitrary Power in this Nation since this is but to preserve the Original Constitution of Parliaments which in some cases cannot be maintained without such a Resistance be allowed But to proceed to the Authorities you bring from our Statutes as for the first you urge
particularly to the 55 th Law of William the First part of which I have already cited it begins thus Volumus etiam ac firmiter praecipimus concedimus ut omnes liberi homines totius Monarchiae Regni nostri praedicti habeaâ—t teneant terras suas pâ—ssessiones suas bene in pace libere ab omni exactione injusta ab omni Tallagio ita quod nihil ab ois exigatur vel capiatur nisi Servitium suum liberum quod de jure nobis facere debent facere tenentur prout statutum est eis c. So that whatsoever was done at any time contrary to this Statute was illegal and consequently ought not to be quoted as any part of the King's Prerogative But that the Nobility and People of England had divers Rights and Liberties before the time of King Iohn and of his granting that Charter appears by its conclusion in these words Salvis Archiepiscopis Abbatibus Prioribus Templariis Hospitalarâ—is Comitibus Baronibus Militibus omnibus aliis tam Ecclesiasticis Personis quam secâ—laribus libertatibus quas prius habâ—erunt And as for the rest of the Liberties granted by this Charter tho they are said to have been granted from the King 's meer good will yet that is recited only to make it more strong against himself since the Nobility and People of England claimed those Liberties as their ancient undoubted Right And the same Author as I have already hinted expresly tells us that this Charter contained Maxima ex parte leges antiquas And a little lower he relates where those Liberties were to be found Capitula quoque legum libertatum quae ibi Magnates confirmari quaerebant partim in Charta Regis Henrici superius scripta sunt partimque ex Legibus Regis Edwardi aâ—â—iquis excerpta So that they were not only the effect of the King 's meer Grace and Favour as you suppose But if you please now to descend to the Reign of Henry the Third and so downward from which time our Eldest Printed Statutes bear Date let us see if I cannot answer all those Arguments which the Gentlemen of your opinion have thence brought for the King 's Sole Legislative Power M. Tho I do not allow of your notion of the Conqueror's not being properly and really so as I shall shew you another time when I shall more particularly consider that Argument of the Right of Conquest in King William and all his Successors therefore I do at present readily assent to your Proposal and it was the very thing I was coming to And therefore I shall begin with the Magna Charta of Henry the Third which begins thus Know ye that We of our Meer and Free Will have given these Liberties The Statute de Scaccario Anno 51 Hen. 3. begins thus The King commandeth that all manner of Bayliffs c. The Statute de Districtione Scaccarii made the same year runs thus It is Provided and Ordained The King willeth The Statute of Marlbridge 52 Hen. 3. And he i. e. the King hath appointed all these Acts Ordinances and Statutes to be observed of all his Subjects If we come to the Reign of his Son Edward I. and begin with the Statute of Westminster I. it is there said in the Preamble These are the Acts of King Edward I. made at his first Parliament by his Council and by the Assent of the Archbishops Bishops c. And in the first Chapter 't is said The King hath Ordained and Established these Acts. And tho I grant that in divers Statutes of this King at in this of Westminster it is recited that the King by the advice of his Counsel or Assent of the Archbishops Bishops Earls Barons c. have Made Provided Ordained or Establisht such and such Laws yet it is plain that the Enacting or Decreeing part is wholly ascribed to the King in all those Statutes wherein such words are found as I shall make it appear more plainly by the Statute of Act on Burnel made in 13 Edw. I. where it is said The King by himself and all his Council hath Ordained and Established And in the Statute of Westminster 3.18 Edw. I. Chap. I. Our Lord the King in his Parliament at Westminster at the Instance of the Great Men of the Realm hath Granted Provided and Ordained In the Statute De iis qui ponendi sunt in Assizes 21 Edw. I. Our Lord the King in his Parliament holden c. hath Ordained that c. The Statute of Quo Warranto 18. Edw. I. runs thus Our Lord the King at his Parliament holden at Westminster of his special Grace and for the Affection he beareth unto his Prelates Earls and Barons hath granted That c. I Edw. II. begins thus Our Lord the King hath Granted The Statute of Gavelet 10 Edw. II. begins thus It is provided by our Lord the King and his Iustices The Statute of Carlisle 15 Edw. II. begins thus The King unto the Iustices of his Bâ—nch sendeth Greeting Whereas of â—ate We have Ordained c. But if we come to the Reign of his Son Edw. 3d. The Prefaces to most of the Statutes made in his Reign run thus Our Lord the King by the Assent of the Prelates Earls c. and at the Request of his People hath granted and established or else at the Request of the Commonality hath ordained c. The like Stile continued during the Reigns of Richard the 2d Henry 4th and Henry 5th with very little Alteration only it was commonly at the Request of the Prelates Dâ—kes Earls and Barons and at the Instance and Special Request of the Commons the King hath Ordained c. Whereby we see a plain difference in the Phrases of the Statutes of those times for it is the Lords that give their Assent whereas the Commons only Petitioned but it is the King alone who Ordaineth and Establishes I confess indeed that under some Princes of bad Titles as in particular under the Minority of Henry 6th there began some Alteration in the form of penning the Enacting part of most Statutes that were then made and that unto those usual words which were inserted ordinarily into the Body of the Acts from the beginning of the Reign of that King viz. by the Advice and Assent of the Lords Spiritual and Tempâ—ral and at the Special Instance and Request of the Commons there was added by the Authority of the said Parliament But it is still to be observed that though these words were added to the former Clause yet the Power of Granting and Ordaining was still acknowledged to belong to the King alone as appears by these Acts of Parliament of that King viz. the 3d. Henry 6th Ch. 2. 8th Hen. 6. Chap. 3. Where it is said our Lord the King by the Advice and Assent and at the Request aforesaid hath ordained and granted or Ordained and Established by the Authority of this Parliament And thus it generally
ordinationes totius Regni Angliae fuit mensura Domini Regis composita But farther to convince you that in the Opinion of the Lord Chancellour and those Learned Judges who framed the Writs that were issued out upon any of these Antient Statutes you will find that they who lived in those very times believed that those Statutes were made not by the K. alone but by him and the Common Council of the Kingdom which Writs as you may see in the Register of Writs run thus Rex Vicecom c. Salut Si A. fecerit c. tunc summonias c. B. quod sit coram Iusticiarijs c. Ostensuris quare cum de Communi Concilio Regni Nostri Angliae provisum sit c. as you may see in the Writs Granted upon the Statutes of Magna Charta Marlbridg Merton Glocester c. which have all of them this or the like Recitals cum de Statuto or juxia formam Statuti de Communi Concilio Regni nostri Ang. inde provisi The like Instance I could give you upon the Statute of Marlbridge and divers other Old Statutes in which the King by the Statute it self seems only to have Enacted it and yet you may see that our Sages of the Law were very well Convinced that those Statutes were made not by the King alone but by the whole Common Council of England So that there is no avoiding the Conclusion that the Great Council or Parliament had then a Great Share in the Legislative Power unless you can suppose the King alone to have bin the whole Common-Council of the Kingdom mentioned in these Writs But as for the rest of your Instances of Edw. 2d and Edw. 3ds times I think I can shew you that there is no General Rule to be drawn from some few Examples For though it is very true that the first of Edw. 2d begins thus Our Lord the King hath granted c. Yet it is plain by the Statute it self that it was made in and by Parliament The like I may say of the rest of the Statutes of this King's Reign though they do not all agree in Form as you may see by the Statute of Sheriffs 9th Edw. 2d Our Lord the King by the Assent of the Prelates Earls Barons and other Great Estates hath Ordained and Established And though you would fain draw some mighty Consequence from those Phrases in the Statutes of Edw. 3d. and many of his Successors by the Assent of the Lords and at the Request of the Commons as if the Consent of the latter were not as necessary as the former Yet indeed it is a meer difference in Form and proceeds only from hence that that Estate which found it self grieved always Petitioned the King for Redress and which amounted to as much as a Consent For you shall always find that the Petitioning Part still refers to that Body which was then oppressed without giving any other Assent For certainly their Requesting to have an Act made doth necessarily express their Consent And to prove what I have now said by Examples pray see the 8th of Hen. 6. c. 1. Where it is Recited in the Preamble that our Soveraign Lord the King Willing Graciously to provide for the Security and Quiet of the said Prelates and Clergy at the Supplication of the said Prelates c. and of the Assent of the Great Men and Commons aforesaid hath Ordained and Establishs't where you may see that the Assent of the Prelates is not here at all mentioned because it was needless as being made at their Request And if Praying and Requesting should destroy the Legislative Power I doubt whether Edw. 3d. did not give away his when in his 14th Year in a Statute concerning the Subsidy of Wools The Preamble runs thus nevertheless the King prayeth the Earls Barons and all the Commonalty for the Great Business which he hath in Hand c. that they would grant him some Aid upon Wools Leather c. Where upon Deliberation being bad the said Prelates Barons and Commons of the Kingdom have Granted him 40 Shillings to be taken on every Sack of Wooll But to return to the Matter to let you see that not only the Commons but also the Lords have bin oftentimes Petitioners as well as the Commons Pray see these Authorities The 1 is the Statute of Provisors 27 Edw. 3d. runs thus Our Soveraign Lord the King with the Assent and Prayers of the Great Men and the Commons of the Realm of England hath ordained c. And in the 4th of Ed. 4th i. e. It is Recited thus The King by the Assent Advice Request and Authority of his Lords Spiritual Temporal and Commons c. hath Ordain'd and Establisht in the Preamble of the Statute of 1. Edw. 6. c. 4. it is thus Wherefore the King our Soveraign Lord minding and entirely desiring at the Humble Petition and Suit of the Lords and Commons in this present Parliament Assembled doth Declare Ordain and Enact by the Assent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same And that the Assent of the Commons was always necessary to the making of Laws not as bare Petitioners but as Assenters too as well as the Lords appears by this Protestation or Declaration of the Commons to Edw. 3d. which is still to be found in the Parliament Rolls of 51. of that King which I shall read to you in English out of the Law-French which perhaps you are not used to Also the said Commons do Petition our Lord the King that no Statute or Ordinance may be made or Granted at the Petition of the Clergy unless it be by the Assent of the Commons Neither that the said Commons should be obliged by any Constitution which they may make for their Advantage without the Assent os the said Commons For they will not be obliged to any of your viz. the Kings Statutes or Ordinances made without their Assent M. I do not deny but that the Assent of the Commons as well as Lords hath bin allowed as necessary for a long time But whether the Consent of either at first was so is a great doubt since we find the first Ancient Statutes as I have already observed to have bin made wholy by the King alone And I think the most Ancient Laws are the best Interpreters of the Original Legislative Power And thence it appears that many Provisions Ordinances and Proclamations made heretofore out of Parliament have bin always acknowledged for Laws and Statutes We have among the Printed Statutes to this purpose one called the Statute of Ireland Dated at Westminster the 9th of February 14 Hen. 3d. Which is nothing but a Letter of the King to Gerard Fitz Maurice Justiciar of Ireland The Explanations of the Statute of Gloucester made by the King and his Iustices only were received always for Statutes and are still printed with them Also the Statute made
Soccage must needs have been so numerous that what Room nay what Field or Place was able to contain so great a Multitude Or how could any business have been transacted therein without the greatest confusion imaginable F. So then you your self must also grant that when all your Greater and Less Barons or Tenents in capite appeared in Person Parliaments were much more numerous than they are now since according to the Dr.'s Catalogue out of Dooms-Day-Book in his Appendix to the English History Vol. 1. of all the Tenants in capite or Serjeanty that held all the Lands in every County of King William they did besides the Bishops Abbots Earls and Barons altogether amount to about 700. and these in the 49th of Hen. III. by forfeiture and new Conveyances from the Crown or by those other ways you have now mentioned might be multiplied into twice as many more and those also of sufficient Estates to maintain the Port of a Member of Parliament or Knight Since 15 Pounds a year was in the Reign of King Iohn and Henry III. reckoned as a Knight's Fee and he that had it was liable to be Knighted And if so I pray according to your own Hypothesis how could so great an Assembly be managed as of about 3000 or 4000 Persons without strange confusion and disorder but upon our Principles there will follow no more Absurdities or Inconveniencies than in yours for either these Barons of Counties Burgesses and Inhabitants of Towns and Cities were always represented by Knights and Citizens as they are now or else these Barons of Counties appearing for themselves were Lords of Mannors or Freeholders of good Estates who were not so numerous or inconsiderable as you imagine the Freehold Lands in England being in those days but in a few hands in comparison to what they are now And for this Opinion I have Sir H. Spelman of my side who in the place already quoted under Barones Câ—â—itatus expresly tells us Hoc nomine contineri videtur antiquis paginis omnis 〈◊〉 â—eodalium specier in uno quovis Comitara degentium Proceres nempè 〈◊〉 Domini nèc non liberè quique Tenentes hoc est fundorum proprietarii Anglicè Freeholders ut Superiù◠dictum est Normidum autem est hoc liberè Tenentes nec tam â—iles 〈◊〉 fuisse nèc tam Vulgares ut hodiè deprehonduntur nam villas Dominia in 〈◊〉 Hareditates non dum distrahebant Nobiles sed ut vidimus in Hibernia penes se retinentes agros per precarios excolebant adscriptitios So that you see Sir H. Spelman then believed that the Mannors and Great Freehold in England were not then parcell'd out into so many small Shares as you imagine and that such Inferior Barons whether they held in caâ—â—â—e or not were also called Proceres see the Laws of Henry I. Chap. 25. the Title whereof is de Privilegits Procerum Angliae The law runs thus Si exurgat placitum inter homines allcusus Baronum foenam habentium tractâ—tur placitum in Curia Domini sui Now that this Socha was no more than Soc. in old Saxon see Spel. Gloss. Tit. Soc. i. e. secta de hominibus in curia Domini secundum consuetudinem so likewise in Titulo Socha vel dicitur Soc. a Saxon socâ— i. e libertas Franchesia vide manerium qd dicitur etiam Soca dictum est From all which we may observe that these Lords of Mannors here called Proceres Barones had Court Barons which took their Name from their Lords tho Feudatory Tenents or Vavaâ—ours But granting that about the end of King Iohn or beginning of the Reign of Hen. III. Supposing that these Lords of Mannors and Great Freeholders whether Tenents In capite or others might amount in all to 5 on 6000 persons I do not see why such an Assembly might not be as orderly and well managed as one of 1000. or 4000. supposing your Greater Barons and Less Tenants in capite to have than made about that number especially if we consider that most business or Acts of any consequence and for which Parliaments were called might be prepared and drawn up by the King and his Council before they met So that take it which way you will fewer Inconveniences and Improbabilities attend my Hypothesis than yours M. That the Earls and Greater Barons both Spiritual and Temporal together with the Tenants in capite then made the Body of the Baronage of England I have very good Authority on my side but that any Feudatory Barons or Tenants of a Lesser Degree ever had any Places or Votes in those Assemblies I think you can give me no sufficient Authority for it 'T is true Mr. P. in his Treatise of the Rights of the Commons asserted gives us two Modern Quotations the one out of Mr. Câ—â—den's Britannia the other out of Mr. Selden to prove it As for the former it is in the Introduction to the Britannia first published in Quarto The Words are these Verum Baro ex illis non imbus videatur qua tempus paulatim moliara molliora reddidit nam longo post tempore non Milites sed qui liberi erant Domini Thani Saxombus dicebantur Barones vocari caperunt nec dum magni honoris erat paulo autem postea meaning after the Normans entrance eò honoris pervenit ut nomine Baronagii Angliae omnes qâ—â—dammodo Regni ordines continerentur But he doth not tell us that this Learned Author in his last Edition of this Work in Folio being sensible of his mistake hath added the Word Superiores before Ordines whereby it is plain he now restrains it only to the Earls and Barons as they are now understood Mr. P's other Quotation is out of Mr. Selden's Notes upon Raâ—â—â—rus where commenting on the Word Barones he saith Vocabulum nempe alio notione usurpari quam vulgo neque eos duntaxat ut hodie significare quibus peculiaris ordinum Comitiis locus est but then conceals this that follows which makes directly against him Sed universos qui Regiae munificentiae ad formulam Iuris nostre Clientelaris quod nullius Villae Regiae glebam sed ipsum tantum modo Regem spectat Tenure en Chief Phrasi forensi dicimus sive Tenura in capite lati fundiâ— pessidebant whereby you may see that he expresly restrains this Word Barones to Tenents in capite only tho your Author takes no notice of it Nor indeed in his Title of Honour doth Mr. Selden give us any other Description of a Baron I mean such who had a Vote in Parliament but such in the Sense that is taken in Henry I. his Charter as it is recited in Matt. Paris Siquis Baronum meorum Comitum vel aliorm qui de me tenent mortuus fuerit i. e. One who was either one of the Earls or Greater Barons or otherwise held in capite F. Mr. P. is not at all to be blamed as you make him
refer but to this very Letter which was assented as well per procuratores Communitatis Regni as by your Barons here called Nobiles Regni And this Application thereof is given by Mr Pryn himself when he makes use of these Records But to let you see farther that the Lords and Commons for all this Author Opinion to the contrary might joyn in a Letter ro the Pope I shall shew you by that which was writ in the Name of the whole Parliament to the Pope in the 17 th of Edw. III. about the Provisions of Benefices which then grew so exorbitant that Walsingham tells us in his History Quod Rex tota Nobilitas Regni pati noluit c. which Phrase the Letter it self will best explain The beginning and conclusion of which I shall give you in English as you may find it in Mr. Fox's Book of Martyrs To the Most Holy Father in God Lord Clement by the Grace of God of the Holy Church of Rome and of the Universal Church Chief and High-Bishop His humble and devout Children the Princes Dukes Earls Barons Knights Citizens and Burgesses and all the Communalty of the Realm of England assembled at a Parliament holden at Westminster the 15 th Day of May last past c. In witness whereof we have hereunto set Our 〈◊〉 Given in the full Parliament at Westminst on the 18th Day of May Anno Drâ— 1343. And it still appears by the Parliament Roll of this Year viz. 17th Edw. III. n. 59. that the Commons petitioned the King that the Lords might stay at the Parliament till they had perfected and seal'd this Letter And that there was such a Letter then written by the Parliament appears by the King's Letter to the Pope about the same Matter still among the Tower Records In which he imitated his Grandfather Edw. I. and Great Grandfather Hen. III. who also seâ— Letters to the Pope on such like occasions but in those to excuse the Arch-Bishop of Canterbury from being the Author of those Complain he had this Passage that since it was the Judgment tam Procerum Nobilium quaâ— Communitatis Regni in ultimo Parliamento contra Provisorum Exercitum To conclude I think nothing is plainer than that under the Universitas Regâ—â— in the first Letter to the Pope 29th Hen. III. and under the Communitas Regni mentioned in the Letter of the 29th Edw. I. were meant the same Estates or Orders of Men as were more particularly recited in this present Letter viz. The 〈◊〉 Lords and Commons in Parliament assembled M. I must freely tell you I am not yet satisfied with the Sense you now put â—pon these Words Universitas and Communitas Regni before the Commons were summoned to Parliament for you your self must grant that as the word Universitas Regni takes in the whole Representative Body of the Kingdom so likewise the word Communitas signifies no more than the same whole Body or Community thereof Therefore if I prove to you that in those times this Universâ—â—y or Community consisted only of the Earls Barons and Tenants in capite that word Communitas Regni ought never to be interpreted by the English word Commoâ—â—lty or Commons of England till after the time that I allow the Commons were admitted to make a constituent part of the Great Council or Parliament nor always then neither And Mr. P. in his Book which we have so often cited hath done very unfairly to make the Universitas and Communitas Regni to comprehend the Commons of England before they everappeared in Parliament at all and so hath he likewise abused the Word Populus as I have already observed to signifie the Commons when indeed there is no more thereby meant than the whole Assembly of the Laity which at that time consisted of no more than the Earls Barons or other Tenants in Capite And tho I grant that by Communitas Praelatorum or Baronum are often understood the Body of the Prelates or greater Barons only called by way of Eminency Proceres Magnates yet most frequently these with all the other Tenants in capite did make the whole Body of the King 's immediate Tenants in Military Service and were altogether called the Baronage of England the Community of the Land or Community of the Kingdom and for this I think I shall give you undeniable proofs by and by F. I am very well aware that the Word Populus often signifies the whole Body of the Laity yet not excluding the Commons as I have already sufficiently proved For then the word must signifie quite contrary to its genuine Signification instead of People the Greater Nobility only yet that when it is put after as distinct from Magnates it must mean the Commons as now understood I shall shew you by and by But that this word Populus does not always signifie the whole Body of the Nobility only but takes in oftentimes the Commons too pray see Matt. VVest who tells us King Edw. I. in the 34th year of his Reign making his Son a Knight Pro hac melitia silii Regis concessus est Regi zomus Denarius a Populo Clero Mercatores vero vicesâ—mum concesserunt Upon which your Dr. in his Glossary very well remarks that it is evident upon Record who were the Populus meant by the Historian viz. the Comites Barones alii Magnates nec non Milites Comitatuum So that unless the Knights of Shires were Lords it is plain Populus takes in the Commonâ— too But Universitas Regni and Communitas Regni called in French le Communâ— Dangletterre is often taken for the whole Community or Body of the whole Parliament and this Sir Edward Coke owns expresly in his 2d Instit. upon these Words In Articulis supâ—â— Chartas Thus here Le Commune is taken for People so astout le Commune is here taken for all the People and this is proved by the Sense of the Words For Magna Charta was not granted to the Commons of the Realm but generally to all the Subjects of the Realm viz. to those of thâ— Clergy and to those of the Nobility and to the Commons also And this is a Rational as well as Grammatical Interpretation For as the Word Universitas is derived from the Adjective Universus which signifies the VVhole 〈◊〉 Universal So the Word Communitas is derived from the Adjective 〈◊〉 Common or General So that these two Words when used simply in a Political 〈◊〉 Legal Sense ought to take in the whole Body of the Kingdom or all sorts and conditions of Freemen appearing themselves or their Lawful Proxies or Representatives in Parliament But I have already sufficiently proved that under those General words used in our Historians and Records viz. Principes Proceres Nobiles Magnates Barones alii de Regno were then comprehended either all the considerable Freeholders oâ— Lords of Manners or else the Knights of Shires Citizens and Burgesses So
Voluntate Precipto Domini Regis nec non â—â—â—datorum Baâ—onium ac etiam Communitatis tunc ibidem praesentium M. I think the Dr. hath given us full satisfaction as to this Record in his Answer to Mr. P. the substance of which I shall here give you in short First It is certain that at the making of this forced Peace Simon Mountford and his Faction then held the King and Prince as also Richard Earl of Cornwal the King's Brother as good as Prisoners and made them do what he pleased and he carried the King and Prince along with him until he had taken in all the strong places of the Kingdom and when he had done then he called this Parliament which could not be one in the sense it is now taken since there was none there but the Earls Barons and Heads of the Rebels which had the King and Prince in their power and as you your self set forth were the same persons that sealed it for themselves and the other Barons and the whole Community of the Kingdom of England which Community must be the Community of the Barons and Great Men or Tenants in capite by Military Service and no other for how can the Lords and Barons sign any thing for the Commons as at this day understood They did not then nor now do represent them But I shall give you another Authority to make this clearer of some years before related in Matt. Paris viz. Anno Dom. 12â—â— 42 d Hen. III. where Letters are said to be sent a Communitate Angliae to the Pope concerning Aymer de Valence Bishop Elect of Wachester the Direction is thus Sanctissimo in Christo Patri c. Communitas Comitum Procerum Magnatum Aliorumque Regni Angliae cum subjectione debita Pedum Osrâ—â—â— c. And to put the Matter beyond all doubt it is certain that these Letters were sealed by six Earls and five Barons onely vice totius Communitatis I need 〈◊〉 give you their Names since you may find them in the Author himself as also cited by the Dr. And as for H. Bigod the Chief Justice and the four Persons named after him they are proved by Sir VVilliam Dugdale in his Baronage of England to have been the Greatest Barons in the Kingdom Now pray let me ask you this Question Did these Eleven Persons all Great Earls and Barons represent the whole Commons or Community of England as at this day understood or did they represent the Community of the Barons only together with the Alios the Milites which held by Military Service of the Great Barons and the Less Tenants in capite for the whole Community here intended must be one of them take which you please you 'l lose the Cause For certainly these Great 〈◊〉 and Barons that sealed this Letter vice totius Communitatis were not chosen nor sent by the Commons to this Parliament or Meeting nor were the Commons represented as at this Day by them as you your self have already granted F. I hope I shall not need to make any long Reply to this Answer of youâ—â— or rather of your Dr.'s since it is built upon the same false Supposition with the other viz. that the Words Cum Communitate tot â Regni Angliae must always mean only the Community of the Tenants in capite which Supposition if it be false in your former Argument is also as falfe in this of the Lords and Commons too and therefore it is impertinent to repeat my Answer to it But if this were no true Parliament because Simon Mountford had then the King and Prince in his power This would likewise serve to unparliament that of the 49 th of this King from whence the Gentlemen of your Opinion date the first coming of the Commons to Parliament since the King and Prince were as much in Simon Mountford's power then as now and yet no man as I know of ever questioned the validity of it tho I cannot also omit that you pass by in this Letter the words Magnatum aliorumque Regni under which Words as I have already proved might very well be comprehended all the Knights of Shires as well as Citizens and Burgesses unless the words had run thus as they should have done to have made out your Assertion aliorumque qui de Rege Tenent in capite But to come to the main point you insist upon which is How these Great Earlâ— and Barons could seal this Form of the Peace and these Letters to the Pope in the Name of all the Commons of England Before I answer to that I pray give me leave to ask you one Question You have already allowed that the ordinary Tenants in capite of which that numerous Body chiefly consisted tho called by courtesy Barones Minores were really no Barons nor Peers of the Realm and if so were but Commoners Now pray tell me how these Great Earls and Barons you mentioned to have signed this Peace and this Letter to the Pope could put their Seals for those who were no Barons themselves by your own confession and you cannot say they represented them for they were as good Tenants in capite as the Greatest Lords But if you say they did it by their order and consent pray why might not these Great Lords or Barons as well do the like for the Knights of Shires and Burgesses by their appointment Since I have already proved that the Lords did act thus in the Letters which were sent to the Pope concerning the Business of Scotland And besides I must here observe that the Dr. and you do not deal fairly with your Adversaries in citing this Authority of the Lords and Barons signing these Letters to the Pope Vice tâ—tius Communitatâ—s Angliae since I acknowledge in this place the Word Communitas being put alone doth mean no more than the Community of the whole Kingdom But in the Authority I have quoted it is put after the Earls and Barons and so then must mean the whole Commonalty or Body of the Commons in the Sense they are now taken and as it hath been always used in French as well as in Latin when it comes after the Earls and Barons as I have already noted And for this pray see the Stat. of Westm. I. made 3 d Edw. I. but eleven years after the 49 th of Hen. III. Per l'assâ—ntments des Aechievesques Evesques Abbes Priors Counts Barons tout le Comminalty de la terre illonques summones Which Phrase I can shew you to have continued the same in most of our French Statutes during the Reign of this King and all his Successors in many Records and Acts of Parliament whilst they were writ in Latin or French which I shall omit reciting because I suppose you your self will allow it I have a great deal more to say concerning the true sense of the Words Communitas le Commune le Communalty which because it is long and it now grows late I shall
defer till another time But I think I shall be able to shew you from undoubted Records and Acts of Parliament from the Reign of Hen. III. as low as Richard II. that these Words when used as I have now said after the Earls and Barons cannot refer to them but to another distinct Estate or Order of Men then called les Communer or les Communes in English the Commons of the Kingdom distinct from the Bishops and Lords M I shall nor now dispute with you concerning the Sense you have put upon the words you mention but I grant they often signifie the Commons after the 18 th Edw. I. in some Acts of Parliament and Parliamentary Records but I must beg your pardon if I cannot allow Communitas to signifie the Commons at this time in your Sense and therefore am not yet convinced that the words la Communalty de la terre mentioned in the Statute of Westm. I. ought to be understood or englished by the word Commons who I do not suppose were then above once called to Parliament till the 18 th of this King But as for what you argue from the Knights of Shires being often called Magnates and Grantz des Countees I allow they are often so stiled in our Statutes and Rolls of Parliament but if you consider the reason of it this will do you little Service since they were so called from their being most commonly at the beginning of their Election chosen out of the Greatest and most considerable Tenants in capite under the Degree of Barons in each County and no other who were chosen to represent the Omnes alios qui de Rege Tenent in capite mentioned in King Iohn's Charter or them and all the other Military Tenants by mean Tenure For 't is scarce to be believed that those Tenants in capite who made such a noise for their Liberties would part with this main point of being personally present or else the Body of them represented by some of their own number in every County And it may be upon this account they had the Title of Notable Knights c. in the ancient Writs of Summons directed to the Sheriffs So that only the Tenants by Knights Service as suitors to the County Courts were the Electors And this was very likely the reason of the Statute of the 7 th Hen. IV. that the Election should be made in the County Court by all the Suitors and also why the Statute 18 th Hen. VI. by which any man that had 40 s. per Ann. of any Tenure who was before permitted to be an Elector was altered by 10 th Hen. VI. and so explained that none but Freeholders of 40 s. per Ann. should afterwards be Electors with respect to the least part of a Knights Fee viz. 40 s. per Annum which were now come into the hands of very ordinary Men. For anciently soon after or near the Conquest there were very few or no great Socâ—agâ— that is such as held great Estates in Soccage and neither the small ones nor the Nativi or Copyholders were reputed Liberi ot Legales Homines as before mentioned or performed the service proper to such Military Tenants or those to whom they had alienated part of their Fees But since I have tired you as well as my self in wrangling about the sense and meaning of the words in dispute between us I shall for the future take a shorter cut and give you two or three Authorities from our Ancient Laws of VVilliam the Conqueror and Hen. II. and Rich. I. which together with King Iohn's Magna Charta will I think make it plain enough in conscience that the Commons as now represented were not summoned to Parliament during the Reign of King Iohn and whether they were so summoned before 49 th H. III. when they were called but once till above twenty years after will be the other part of my Task F. I approve of your Method very well and I assure you I love pedantick Disputes about the Grammatical signification of words as little as your self unless where it is absolutely necessary as indeed you have rendred it so by raising the greatest part of your Arguments from the equivocal use of those general words whereby our Ancient Laws and Historians have stiled the Constituent Members of our Great Councils which if they are well cleared I think it is high time to fall upon some more solid Arguments But before you come to that I cannot forbear observing that your self do allow that in all Acts of Parliament and Records after the 18 th Edw. I. the words Communitas and lâ— Commune when put after the Earls and Barons do signifie the Commons in the same sense in which they are now taken but I must confess it seems incredible nay almost impossible to me that these words should signifie the Community of the Tenants in capite In the 48 th Hen III or 18 th of Edw. I. begin where you please and yet that the next Parliament after those the same words should be taken in quite another sense for the Knights of Shires Citizens and Burgesses and that no Statute Record or Historian of that or succeeding Ages should take the least notice of it is understood But before I conclude this part of the Question I cannot but rectifie a great mistake you have fallen into by adhering to the Dr. with too implicite a Faith For whereas you suppose that the reason why our Knights of Shires were called anciently Grantz des Countees was because they were at first elected out of the Tenants in capite only and who with the other Tenants by Military Service were also the only Electors of them at first till the Statute of 7 th Hen. IV. ordained the Election should be made in the County Court by all the Suitors as if it had not been many Ages so before Whereas if you please to peruse that Statute a little better you will find it was not made to enlarge the number of the Electors of Parliament men for long before that time all sorts or degrees of Freeholders as well Tenants in capite as their Tenants by any kind of Tenure or whether holding of such Tenants in capite or else of others as Abbots and Priors and other Mesne Tenants did alike owe Suit and Service to the County Court and consequently were all alike capable of giving their Voices there at the Election of Knights of Shires however small their Estates were Nor was that Statute of Hen. IV. now cited which requires the Election of Knights of Shires to be made by those that were summoned and all other that were there present made to confer any new Right upon such Feeeholders but only to prevent the Abuses of Sheriffâ— who were wont before that Statute to procure Knights of Shires to be chosen clandestinely without any due Summons or notice given to the Freeholders of the Election much less doth the Statute of 8 th Hen. VI.
confer any new Right or Priviledge upon Freeholders of 40 s. per Annum to give their Voices at such Election as you suppose but only takes away the Right which the smaller Freeholders of under 40 s per Annum whether Tenants in capite or not had before and restrains it only to such as shall have Lands or Tenements to the vaâ—â— of 40 s. by year above all charges And it is yet a much greater mistake to suppose as your Dr. doth that this Statute of 8 th Hen. VI. was at all altered by that of the 10 th of this King which is no more than an Explanation of it viz. that by 40 s. per Annum was meant 40 s. Freehold and that of Lands lying within the County where the Election should be made So that nothing can prove more expresly that all Freeholders as well Tenants in capite as by any other Tenure were all alike capable of Elections and being elected by the Ancient Law and Custom of England long before those Statutes and consequently were all alike Freeholders in the Eye of the Law But if you have nothing at present to object against what I have now said pray pursue the Method you have undertaken and let me see those convincing Proofs you so much rely upon and which you hope may also serve to convert me M. Before I undertake this Task pray permit me to give you my Opinion in answer to the Difficulty you have now proposed which I confess seems to carry some weight with it but those Prejudices will soon vanish when we consider that the first time this Alteration was practised it was done in the King's Name tho by the absolute power of Simon Mountfort in the 49th Hen III. and after a discontinuance of above twenty years was again renewed by Edw. I. at the desire of the Earls and Barons as I hope I shall shew you before we have finished our Conversation And therefore it being first done by the King 's absolute Power and after with the general consent of the Lords there needed no Statute to introduce it any more than there was in the Reign of VVilliam the Conqueror to give the Bishops and Abbots that held by Knight's Service places in Parliament among the Temporal Lords and to bring their Lands which were held before in Franc Almoigne under the Yoak of Military Service But to proceed in the Design I have undertaken it is necessary that I shew you first of all who were those Freemen or Freeholders properly so called upon whom the whole burden of the subordinate Government of the Kingdom chiefly relied and who then constituted the Legal University or Community thereof immediately after the Norman Conquest and during many King's Reigns after that time I suppose you are not ignorant that King VVilliam the Conqueror having outed all the English Nobility and Gentry of their Estates gave them away to his French and Norman Followers to be held of him and his Successors in capite either by Knights Service or Petit Serjeanty reserving to himself the Ancient Demesnes of the Crown and adding more thereunto for the maintenance of the Royal Dignity and for this I need refer you to no better Author than Doomsday's Book it self And then after he had thus distributed the Lands of England as aforesaid he composed a Body of Laws still extant and which are in great part Addition to the Ancient Laws of King Edward and his Predecessors I shall give you three or four of these new Laws and then I shall leave you to judge who were the true Freemen or Freeholders of the whole Kingdom The first is the 52 d Law of this King Tit. De Fide obsequio ergo Regem Statuâ—mus etiam ut omnes Liberi Homines faedere Sacramento affirmarent quod intra extra Regnum Angliae quod olim vocabâ—o Regnum Britannie VVilâ—ielmo Regi Domino suo Fideles esse volunt Tâ—ras Honores illius omni fidelitate servare cum eo contra inimicos alienigenar difendere Now who these Freemen were that were thus to maintain the King in his Lands and Honours we shall see in the 55th Law following Tit. De Clienteleri seu Feudorum Iure Ingenuòrum immunitate Volumus etiam ac firmiter praecipimus concedimus ut omnes Liberi Homines totius Monarchiae Regni nostri praedicti habeant â—â— meant terras suas Póssessiones sâ—â—s benè in pace libere ab omni Exactione injusto ab omni Tallagio it a quod nihil ab eis exigatur vel capiatur nisi servitium suum liberum quod de jùre nobis facere debent facere tenentur prout Statutum est in allis a Nobis Datum Concessum jure Hereditario imperpetuum per Commune Consilium votius Regni nostri Whereby you may see that all the Freemen here mentioned who were to hold their Lands and Possessions in Peace and free from all unjâ— Exaction and Taillage were only such who were to perform Free Service i. e. Knight's Service which was before appointed and granted them in Hereditary Right by the King in the Common Council of the Kingdom So that none were properly Freemen or exempt from Tax or Talliage but such as held by Military Tenure tho not Knighted And pray also by the way take notice that by this Commune Consilium Regni you are not to understand a Council of English men or of English and French together but one wholly made up of Frenchmen or Normans who as well Bishops and Abbots as Temporal Earls and Barons held almost all the Lands in the Kingdom by Knights Service Which is also farther made out by the 58 th Law Tit. De Clientum seu Vassallorem prastationibus Statuimus etiam firmiter praecipimus ut omnes Comites Bermes Milites Servientes Universi Liberi Homines totius Regni nostri prâ—â—â—â—tihabeant teneant se semper benè in Armis in equis ut decet oportet qud sint semper prompti benè parati ad servitium suum integrum nobis explendum pâ—â—â—gendum cum semper opus adfuerit secundum quod Nobis debent de Feodis Teneâ—â—â—tis suis de Iure facere sicut illis statuimus per Commune Consilium totius Regni nostri praedicti illis dedimus Concessimus in Feodo Iure Haereditario hoc praeceptum non sit violatum ullo modo super foris facturam nostram plenam So that here all the Freemen of his Kingdom were to perform their Military Services with Horse and Arms according to their Fees and Tenures Therefore they were Tenants in Military Service onely which in those times were the only great Freemen and that Service the only Free Service which were meant in this Law And â—ow different they were from our ordinary Freeholders at this day for whom neither of these Laws were made I dare leave it
of the great Council and the common University of the whole Kingdom for it is obvious that when all the Lay Lords Earls and Barons to whom you may also add your Tenants in Capite if you please being met together were asked by the Bishops Abbots and Priors then present whether they would agree with them or not the Eaâ—ls and Barons answered for themselves that they would do nothing without the Common Vniversity which could not possibly be only the Lords Spiritual and Temporal and Tenants in Capite since it is plain they were now all here and referred themselves to another distinct order of Men different from themselves who were not there present as also from the Bishops Abbots and Priors who demanded there Consents to what they had agreed upon Now if the Temporal Lords and Tenants in Capite had concurred here had been the consent of the Common Vniversity of Lords and Tenants in Capite but besides the consent of all these there was notwistanding it seems required the Consent of another body of Men called here the Communis Vniversitas by which must be meant the Commons or no body since otherwise they might have all agreed together without any more ado M. I confess this Story out of Mat. Paris looks somewhat plausible at the first on your side but I doubt not if it be better considered it will do you little Service for what if by this Common Vniversity is to be understood the whole body of lesser Tenants in Capite who not â—itting with the Lords at that time they would do nothing without their Consents till it was proposes to them but that they did afterwards all agree pray read the rest of this Narration and it will make it clear enough that this Common Vniversity of Tenants in Capite did also agree with the Lords Bishops and Abbots the words immediately following in Mat. Paris are these Tunc de communi assensu electi fuerunt ex parte cleri Blectus Cantuariensis Wintoniensis Lincolniensis Wigoriensis Episcopi ex parte Laicorum Richardus Comes Frater Domini Regâ—â— Comes Bigod Comes Legr S. de Monteforti Comes Maresâ—ballus ex parte vero Baronum Richardus de Montfiâ—hes Iohannes de Baliol de Sancto Edmundo Rameseit Abbates ut quod isli duodecim providerâ—nt in communi recitaretur nec aliqua forma Domino Regi ostenderetur Authoritate duodecim nisi omnium communis assensus interveniret from which last passage it appears plain to me that in this Parliament the several Orders of men that were the constituent parts of it were only the Bishops Abbots Priors Earls and Barons and that all these put together were termed the Common Vniversity which is more comprehensive then University simply taken now if the Commons as at this day represented had been there we must have had some mention of them one way or other as well as of the Committees of the other Orders which made up the general Committee of Twelve so that it is plain beyond doubt that the Commons were not part of the Common Vniversity F. Then pray tell me who they were for the Historian tells that when all these Bishops Abbots Priors had now met together with the Earls and Barons yet these last â—ell them that without the Common University they could do nothing which had been nonsense if as your Doctor supposes the whole University or Community of the Kingdom had been all present M. I must confess this is a material Objection but what if to help him out I should tell you that by the Common University here mentioned is to be understood the body of the inferior Tenants in Capite under the degree of Barons and this Common University of Tenants in Capite might not have been present and sat with the Earls and Barons at that time when the Bishops and Abbots made this Proposal therefore the Lords might very well answer that till they had consulted the Common Universty or Body of Tenants in Capite they could do nothâ—ng and though this Body of Tenants in Capite did not then actually sit with the Earls and Barons yet doth it not follow that they made a distinct Estate by themselves different from that of the Lords or greater Tenants in Capite for then the Arch-bishops Bishops Abbots c. who are here expresly said to have consulted by themselves must have done so likewise therefore though our Author is not so particular as he might have been yet certainly this Common University were thereupon consulted and gave their Assents to the choice of this Committee of Twelve who were to draw up their answer to the King for the words are tunc ex communi assensu electi fuerunt which seem to refer to the Common University or Body of Tenants in Capite or else the Lords Excuse as well as the Election of these Persons by the Bishops Earls c. had been very insignificant F. This seems to me to be a precarious assertion and without any due proof for tho the words are Tunc ex Communi Assensu yet I very much doubt whether these words do refer to the Common Vniversity of the whole Kingdom or not for your self confess that Mat. Paris is short in this point and that it was not so seems most likely to me by this material circumstance that not one Person of the Twelve but was either a Bishop Earl or great Baron For that Richard de Monâ—sichet and Iohn de Baliot were so Sir William Dugdale hath proved in his Baronage of England Whereas if the University or Body of the Tenants in Capite had joyned in this Election it is not likely but they would have chosen some of their own Body to represent them in this Committee who were not Earls or Barons Since your self must confess that they then were a great Body of Men who were not Lords nor did at this time Sit or Act Joyntly with the Lords or greater Barons in this Assembly and likewise it farther seems highly probable that this Common Vniversity of Tenants in Capite take it in your sense did not give any Resolution in this matter since we do not find any Mony given in answer to the King's Request but only Complaints of and orders about Redressing of Grievances which was in those days often done in a great Council of the Bishops Lords and Tenants in Capite But I shall shew you now by some other Records which the Dr. himself hath made use of that there often was a distinct Assembly or Council of the Lords and Tenants in Capite different from that of the Commons or Commonalty of the whole Kingdom The first Record is to be found among the Patent Rolls of the 42. Hen. III. beginning thus Rex omnibus c. cum negotiis nostris arduis nos Râ—gnum nostrum contingentibus Proceres Fideles Regni nostri ad nos London in Quindena Paschae proximae praeterita faceremus convocari
cum de Negoâ—iis supra dictis maxime de prosecutione Negotii Siciliâ—e diligenter cum iisdem tractaremus ac ipsi nobis responderum quod si statum Regni nostri per Concilium Fidelium Nostrorum ratificandum duxerimus Dominus Papa Conditiones cirea factum Siciliae appositas melioraverit per quod Nigeâ—ium illud prosequi possâ—mus cum effectu ipsi diligentiam fideliter apponent erga Communitatem Regni nostri quod nobis Commune Auxilium ad hoc praestetur c. The rest I shall not trouble you with because it is not to our present purpose But you may here see that taking the Words Proceres and Fideles in your own sense the former for the Bishops and Lords c. and the latter for the Tenants in Capite who were called to consult about the business of Sicily which Kingdom the King had before too rashly accepted of from the Pope Yet tho they were all met they could do nothing but give him advice and could give him no Commune Auxilium i. e. common Aids or Subsidies without the consent of the Commonalty of the Kingdom Now what can this Community signifie but the Commons for your Lords and Tenants in Capite were all met already and if they alone made up the Common Vniversity or Body of the Kingdom as you suppose why could they not have immediately granted the King the Assistance he desired if they had a sufficient Power so to do without putting him off with a Promise that they would use their endeavour with the Community of the Kingdom as a distinct order or Body of Men That this Aid or Subsidy should be given him and upon this condition it is that at the end of this Record the King Promises them that before Christmas He would mend the State of the Kingdom per Consilium Proborum Fidelium Hominum nostrorum which can mean nothing less than a Parliament which the next Record in the same Roll recites was to meet at Oxford after the Feast of Penâ—icost which Record since it not only recites the King's Oath whereby he had bound himself to observe the Direction of a Committee of 24â— Fideles i. e. Faithful or Loyal Man 12 of which were to be chosen out of the Kings Council and the other 12. by the Procoreâ— or Magnates Regni which as I have already proved may take in the Commons as well as the Lords but whether by these wordâ— were meant the Lords or Commons The conclusion of this Record sufficiently confirms my Argument from the precedent Record that the Lords and Tenants in Capite could not then Tax the whole Kingdom at their Pleasure without the consent of the Commons or else to what purpose are these words in the conclusion of this last Record Promiserunâ— etiam nobis Comites Barones Memoraâ—i quod expleris Negotiis superius tactiâ— bonâ— fide laboraâ—unt ad hoc quod Auxilium nobis Communâ— praestâ—â—ur à Communitate Regni nostri in cujus rei c. Dat 2. die Maeii And it appears by the Date as also by the entry on the Roll that both these Records were perfected at once and concerning the same business and further to prove that the Parties appointed in the Record to be chosen ex partâ— Procerum were not chosen by the great Lords or Peers only may be seen from a Patent Roll of the same 42. Hen. III. whereby Henry de Wengham Dean of St. Martin le Grand and then Keeper of the Great Seal and Iohn Manseâ— Provost of Beverlay were two of the said Commissioners tho they were neither Barons nor Tenants in Capite as I know of hue only Eminent Lawyers and Men of great Abilities and so meer Commoners Yet Mat. Westminster calls these Men Proceres as you may see by this Passage speaking of this whole Committee Videntes ergo Proceres antedicti viginti quatuor ad Regis Regni regimen 〈◊〉 Electi c. I shall only now conclude with a French Record which the Dr. himself hath also given us at large and which refers to the said Committee of 24. above mentioned it begins thus Henry par la Grace de Dieu Roy d' Engleterre c. a touz ceus c. Sachiez ce pur le profit de nostre Reâ—ume é a la Requeste de nos â—auz Homes é Prodes Homes é du Commun de nostre Râ—aume Otreyames es vinc quatre Homes eusâ—ent pâ—â—r perqâ— tous ce quil ordencirent del Estat de nostre Reaume fust serm é Stable the rest being very long you may read at your leasure only I shall take notice of the date of this Letter to which the King also put to his Seal The conclusion being thus Coste chose feu feite a Lundre landemaigne prochein apros la Gaule bauâ—â—l'an de nostre corronement quarente secundo and tho the Dr. caâ— make nothing of the words Gaule baut this happened I suppose either from the bad Writing of the Record or from the Ignorance or Mistake of the Transcriber for it should be Gaeule d' Aut that is the Gula of August which is a great Holy Day in the Church of Rome upon the First of August called also St. Petri ad Vincula in the Memory of St. Peter's Chains curing of a Roman Virgin by her Kissing them I shall only observe from this Record that the Hauz or Prodes Homes mentioned in this Record being taken in the Drâ— own sense for High and Wise Men that is the Earls and Barons yet the words è du Commune that immediately follow them must needs signifie some Body of Men different from the former or else it had been a notorious piece of Nonsense since if the former words had taken in all the Lords and Tenants in Capite that is in your sense the whole Community of the Kingdom to what purpose are these words è du Commune that are immediately subjoyned since the hauz Prodes Homes would have served to express all the Lords and Tenants in Capite whether taken as Great or as Wise Men. M. I confess what you have now said would carry some weight with it were I not very well satisfied that you impose upon your self by taking as I told you at our last Meeting these words Communitas le Commune Communalti in a wrong sense for the Commons as they are now when indeed these words before the 49th of Hen. III. nay the 18th of Edw. I. as the Learned Dr. shews us in his 2d Edition against Mr. P. are always to be understood either of the whole Representative Body of the Kingdom in general consisting of the Bishops Abbots Earls and Barons together with all the Tenants in Capite called by Mat. Paris and other Historians Communitas Baronagii or else for the Community of the Tenants in Capite alone Stiled Communitas Regni in our ancient Records And this I think I can prove to
continued on now the Doctor upon second thoughts in â—is Edition in Folio will have them never to be Summoned any more than that once because forsooth he cannot find them mentioned in such express words as that he cannot evade them by saying the sense is equivocal and if the Commons not being expressly mentioned in our Statutes were a sufficient reason to prove them not to have been there were the Writs of Summons lost as well after as they are before the 23â— of Edward the First you might as well have faced us down that there were none in all that time till the Statute de Tallagio non concedendo you now mentioned And for proof of this pray see the Statute called Articuli super Charâ—â—s made in the 28 th of this King which is said to be made and granted by the King at the Request of the Prelates Earls and Barons who are only mentioned in this Statute and yet certainly the Commons were then at this Parliament as appears by the Writs of Summons and Expences I but now mentioned and sure their assents were given to it as well as the Bishops and Lords I could shew you the like in many other Statutes of this King nor are the words Communitâ—s or Commonalty ever mentioned above twice in all the Statutes of this King's Reign viz. in that of Westminster the first and that against Bearing of Arms neither is the word Commons to be found above once or twice in all the Statutes of Edward the Second in the Statutes made at Lincoln in the 9 th of this King 't is said to be done by the King the Counts Barons and other Grands of the Kingdom now if these general words did comprehend the Commons in those times you grant they were constantly Summoned to Parliament I desire you would give me any good reason why the same words may not as well comprehend them long before and if the bare omission of the distinct Orders or States of Men that gave their assents to the making of any Statute and the different penning of Acts of Parliament were a sufficient reason to prove they had no hand in it I doubt two parts in three of the old Statutes of Henry the Third and Edward the First would have been made without the Consents either of the Bishops or Lords since in most of them there is no mention made of either and that what I say is true pray at your leisure peruse these Statutes following viz. de Districtionâ— Scacarti of the 51 of Henry the Third with other Statutes made in the latter end of that King's Reign as also that of Actoâ— Burnel made in the 11 th of Edward I. that of Winchester made in the 13 th of this King that of Merchants in the same year as also those of Circumspecte agatis and Quo Warranto and see if you can find any mention either of the Lords or Commons in them But to come to direct proofs tho I grant the words Knights Citizens and Burgesses was not expressly mentioned in our old Statutes yet I shall prove to you by other words of a much more comprehensive signification that they appeared in Parliament in the very beginning of Henry the Third's Reign for this we need go no farther than the old Manuscripts as well as Printed Copies of Magna Charta which was first Granted in the second year and again confirmed in the 9 th of Henry the Third both which conclude thus Pro hac autem Donatione Concessione Archiepiscopi Episcopi Abbates Priores Comites Barones Milites libere Tenentes omnes de Regno nostro dedâ—iunâ— quintâ—m decimam paâ—tem omnium mobilium suorum Now can any thing be more express than this Clause viz. That the Archbishops Bishops Abbots Priors Earls Barons for themselves and the inferior Orders viz. the Knights and Freeholders and all others of the Kingdom by their Lawful Representatives gave this 15 th of their Moveables at both those Parliaments in which this Charter was first made and afterwards confirmed M. I confess this Authority looks very plausible at first but if it be strictly looked into I believe it will prove nothing at all for as to your interpretation of these words I do not allow it for reasons I shall shew you by and by but in the first place give me leave to dispute the Antiquity of this Charter which I do not take to be so ancient as you make it for tho I grant there was such a Charter made in the 2d and again confirmed in the 9th of Hen. III. yet you have already had my thoughts of this Charter which you suppose to be Henry the Thirds viz. that this which we now have is not properly his but his Son Edw. I. since it concludes this His testibus Bonifacio-Cantuariâ—nâ—is Archiâ—piâ—copo E. Londinensi Episcopo c. Anno. Regni-nostri Scil. Henrici 3. nono whereas this Bonifac here mentioned was not Arch-bishop of Canterbury before the 27. Hen. III. nor was there any one whose name began with E. Bishop of London during the time that Boniface held the See of Cantâ—rbuâ—y F. I am very glad you have made these Objections against the Validity of this Charter for if I can prove to you that what you have now urged from your friend the Dr. is a meer Evasion against the Charter it self I think you have reason to be my Convert In the first place pray give me leave to confirm the Valiâ—ity of the Charter it self I therefore freely grant that the Original of this Charter is not to be found among the Statute Rolls in the Tâ—ner where there is nothing left of it on Record except this confirmation of it by a Charter of Impeximus of Edw. I. the Conclusion of which is as you have now given and I think there cannot be a greater Pâ—oof of the careless keeping or voluntary imâ—ezlement of the ancient Statutes and Records of the Kingdom than the loss of this great Charter which certainly must have been inrolled at the time when it was made as well as every common Grant made by the King to ordinary Persons of Markets and Pairs since we find Copies of it still Exâ—ant in the ancient Annals of divers Monasteries where they were formerly kept as in particular in the Annals of the Abby of Barton Published in the first Volum of ancient English Writers lately Printed at Oxford which fully answers your Objection for instead of Boniface it is there Witnessed by S. Archibis Cant. i. e. Stephen Langton who was then Arch-bishop of Canterbury near 20 Years before Boniface there is also an c. after the name of this Arch-bishop And the same Charter is likewise recited word for word with the former and hath the same Conclusion concerning the granting of this 15th by all the Parties above mentioned in the Chronicle of Walter Hemingford Published by the Learned Dr. Gâ—â—e in his 2d Volum of English Historians only it hath no Witnesses Names
a few and for the greatest part but one in each year never but two in any year in all this long Reign unless it be the 39th in which there are four which is very strange that in so busie a time as most of this Kings Reign was there should be no more Rolls left and therefore it seems very probable that at least half are lost and in which might be many Summons as well to the Commons as to the Lords and if they are not lost pray tell me what is become of all the Writs of Summons to your lesser Tenants in Capite who certainly often met in this long Reign according to King Iohn's Charter but if you will tell me they are lost or omitted to be entred upon the Close Rolls I may with like reason and certainty affirm the same of the Writs of Summons to the Knights Citizens and Burgesses for if the one may be lost sure the other may be so too But what if after all these Writs you have produced were not any Summons to a Common Council or Parliament at all but only to a great Council of the Tenants in Capite which I have great reason to believe not only because the Title to the last Writ is only Summonitio ad Concilium and not Commune Concilium Regni but also because Mr. Selden and Mr. Pryn who certainly must have seen all these Writs as well as the Doctor and were as able to Judge of them never cite them for Summons to Parliament and Mr. Pryn observes of several Writs in which the like words of Summoning the Lords to give their advice are likewise found that they were only to such Councils or Treatises which were frequently used as Low as the Reign of Richard II. but if these Writs had been Summons to Parliament sure Mr. Selden and Mr. Pryn had no reason to bewail as they so often do the loss of not only of Parliament Rolls but of all Writs of Summons both to Lords and Commons except those of 49th Hen. III. till the 23d of Edw. I. But pray go on if you please to make good the rest of the positions you have now laid down M. I doubt not but in the next place to shew you though 't is true most of our Parliament Rolls are lost both from our ancient Historians and Statutes that there were no Commons in any Parliament during all the long Reign of King Hen. III. except in the 49th of that King I shall begin with the first Act of Parliament we have of the time of Henry III. which was made in the 20th of this King at Merton where though it is said to be provided and granted as well by the Arch-bishops Bishops Earls Barons as others yet the words Aliis and others are to be understood of the Tenants in Capite distinct from the Earls and Barons as I have already proved F. I shall answer your Authorities as you go you may say you have proved it but I know not when and why may not I with as good a Face maintain that these words Aliis do here signifie the Commons if the word Barons must take in all the great Lords and lesser Tenants in Capite as sometimes you suppose it doth when no other Lay-Members are mentioned but I have already observed that this Barones is a Cheveral word and to be stretch'd or contracted as best suits with your Hypothesis So I think I may with greater reason suppose the Earls and Barons to be all comprehended under the word Barones and the Commons under Aliis as I have already proved and which is also most suitable to the last Clause of Magna Charta of King Henry III. But you forget that I have I think sufficiently made out that the Commons had their Representatives both at the making and confirming of Magna Charta in 2d and 9th of Henry III. and therefore whatever proofs you bring to the contrary will come to late though I shall patiently hear what you have to say but if you have no more Authorities to produce from Statutes and Records which have not been already considered Pray proceede to the 49th of this Kings Reign and give me some reasons why the Commons were called in that year and never before nor after till the 18th of Edw. I. for they both seem to me very improbable suppositions M. I shall observe your Commands and shall give you as short an account as I can of this transaction First therefore I desire you to take notice that after Simon Monâ—fort and the rest of the Barons of his Faction had taken King Hen. III. and Richard Earl of Cornwall the King's Brother with many other of the Nobility Prisoners at the Battle of Lewes He carried them about with Him till they had taken in all the strong Forts and Castles of the Land and when this was done Mat. Paris tells us that calling together at London the Bishops Earls and Barons of that Faction which so seditiously held their King Prisoner they began to set up a Committee for the Government of the Kingdom consisting of Twelve Lords who were chosen out of the whole Community or Body of the Baronage without whose advice and consent or at least of Three of them no affairs in the King's Houshould or in the Kingdom should be transacted and to these Ordinances the King and his Son were forced to agree and though the Record of this Agreement recites that this Ordinance was made at London by the consent goodâ—liking and Command of the King and also of the Prelates Barons and of the Community there present yet I am not yet convinc'd that by the word Communitas in the Latin Record is to be understood the Commons but the Community of the whole Kingdom since this Agreement is Signed only by some great Earls and Barons and no Commoner witness to it but the Mayor of London whom your self will grant was no Parliament Man After which Simon Montfort the better to settle himself in his Usurpt Power and in those Lands and Castles which himself and those of his Faction had unjustly wrested from Prince Edward who was now also a Prisoner having delivered himself as a Hostage for the Performance of this forc'd Peace they in the first place sent out Writs in the King's Name unto divers Bishops Abbots and Priors and to such of the Noblemen as were of their own Party to appear at Westminster on the Octaves of St. Hillary next ensuing and the Doctor hath given us a Copy of the Writ of Summons to the Bishop of Durham as it is found in the Close Rolls of the 49th of this King and at the end of it it is thus recited â—eodem moâ—o Mandatum est Episcopo Carleol As also to divers Bishops and Abbots all of their own Party and Faction there being above an Hundred Abbots and Priors then Summoned more than ever were I believe before or since and then follows a short
Writ to the Sheriffs of Counties to Summon two Knights de Legalioribus Discretoribus singulorum Comitatuum â— though it doth not appear by the Writ whether the Sheriffs of the Counties were to Elect and send these Knights the Sheriffs being then of the Faction and made by them for 't is there said only quod venire faciarâ— There are also other Writs recited to have been directed to all the great Cities and Towns of England as also to the Cinque Ports to send two of the most Legal and Discreet of each of the said Cities Burroughs Towns and Cinque Ports to the said Parliament at Westminster at the time aforesaid So that without the History of this Niâ—k of time these Writs which are said to be for the Delivery of the Prince out of Prison and for the settling of tranquility and Peace in the Nation cannot be understood But Prince Edward's Release could not be agreed upon in this Parliament whatever other Business might be dispatched So that things still remained in this uncertain condition the King being all this time a meer Shadow until such time as Simon Montfort and Gilbert de Clare Earl of Glocester falling out the latter at last took up Arms and joyning with the Earles of Surry and Pembroke to whom also came Prince Edward after he had made his Escape from Hereford they altogether raised considerable Forces against Monfort who meeting them and joyning Battle near Evesham Monfort with one of his Sons and many other Lords and Knights were Slain and all his Party routed Now pray tell me if this is not a very clear account from the History of the matter of Fact why the Commons were first called to Parliament by Monfort during his Rebellion and I think I can also give you very good reasons and Authorities to back them why they were again discontinued all the rest of this Kings Reign untill the 18th of Edward I. F. I shall tell you my opinion of your Narrative by and by but in the mean time pray satisfie me in one or two Questions pray Sir what may be the reason that we can find but twenty three Earls and Barons Summoned of that great number there was then and only to thirteen Bishops in this Parliament and yet at the same time there should be summoned above an hundred Abbots and Priors and but five Deans of Cathedral Churches pray why might not these numerous Barons be trusted as well as all the Abbots and Priors M. As for his not Summoning all the the Earls Barons and Tenants in Capite but putting Knights of Shires and Burgesses in their rooms there may be a very good reason given for it viz. the danger that Simon Monford and his Privado's apprehended from the too great Concourse of the Nobility and their great Retinueâ— and the Example of his own and the Barons Practices at Oxford in the Parliament of 42 d. of Henry the Third might be the cause why they altered the ancient Usage and of their sending Writs out commanding the Sheriffs of each County as also the Cities and Burghs to send two Knights Citizens and Burgesses respectively But the Reason why there was so many Abbots and Priors Summoned was because Simon Monfort thought himself sure of them He was a great Zealot and a Godly Man in those times and a great Minion of these Religious men as then called as also of the Bishops and Clergy and they were at least seemingly Great Favourites of his F. I must confess there is some colour of Reason why Simon Monfort should Summon so many Abbots and Priors to this Parliament if he were sure of all their Votes before hand but there is no certainty of this for if he had been so sure of them there was as much reason why he should have called them all likewise to the Parliament at London which you say he Summoned the year before when with the Consents of the Bishops Barons and others he made the new Ordinances you mention but you cannot find in any Historian or Record that he then Summoned so many of them and it seems pretty strange that all these Abbots and Priors and Deans not a fourth part of which were Tenants in Capite should all take the trouble to come to this Parliament without any scruple if neither they nor their Predecessors had ever been Summoned before But the other reason you give why so many Earls and Barons should be omitted is much more unlikely for if the numerous Barons Factious Practices at Oxford had before frustrated Monfort's designs there had been indeed some reason why he should have done all he could to have hindered their coming again whereas on the contrary the Earls and Barons at the Parliament at Oxford though they came thither with Arms and great Retinues yet it was only to joyn with him and to force the King to agree to the Oxford Provisions But if the Commons were now Summon'd as you suppose to curb the extravagant Power of the Lords yet it could not be his Interest or indeed in his Power so to do not the latter because the Earls Barons and Tenants in Capite were too powerful and numerous a body to have suffered such an affront and breach on their Right as this was Nor could he and his two and twenty Companions have ever dared to have displeased so great and powerful a body of men as you must allow your great Barons and Tenants in Capite both great and small then were and who made such a powerful opposition for their Liberties in King Iohn's time or that they would have thus tamely permitted men wholly of the Sheriffs choice to have thus taken away their places in Parliament and made Laws for them much less the Citizens and Burgesses most of whom were certainly not Noble by Birth nor yet held Lands in Capite nor could it be for Monfort's Interest so to do for the greatest part of the Earls and Barons were of his side already and thus to â—â—clude them had been the only way to disoblige them and make them leave him and go over to the King's side So that I must needs tell you upon the whole matter granting Monfort to have been such a Knave and Hypocrite as you make him yet certainly he was no Fool but a great Politician and I leave it to your self or any indifferent person to judge whether it was possible for him to do so silly and unpolitick a thing as this For granting all the Abbots and Priors to have been of his side as you suppose they could no way counterballance the great Power of those Earls and Barons and numerous Tenants in Capite that were all hereby excluded So that let the Commons have been Summoned when you will it was certainly before this 49 â—h of Henry the Third or not at all But to give you my opinion why so few Earls and Barons are mentioned in this Record of the 49 of Hen. 3 d to have been Summon'd
to this Parliament I conceive it was not out of any jealousie or suspition in Simon Monfort of those who were then his fast Friends but out of pure carelesness or omission of the Clerks who I suppose through hast inadvertency or multiplicity of business omitted to enter the names of all the rest of the Earls Bishops and Barons to whom Writs of Summons were likewise sent and that I do not speak without Book I appeal to the Record it self where there is a blank space left unfill'd of about four Inches breadth which could be left for no other end than to add the names of all the rest of the Earls and Barons who were certainly Summoned to that Parliament as well as those whose names are there expressed M. I shall not longer dispute this point but I think you must grant that the Commons are never mentioned in any Record or Statute of this King for after his Victory at Evesham he called a Parliament at Winchester whereto we do not find any Commons Summoned as before but the King by the advice of his Magnates alone Seised the Liberties of the City of London and also they gave Him all the Lands of the late Rebels And then there was after this a Parliament Summoned at Kenelworth in the 50 th of this King where it was agreed by the common assent of the Bishops Abbots Priors Earls Barons and all others that six Persons who were all except one either Bishops or Barons should chuse six others and the whole twelve were to judge concerning those who were disinherited for their late Rebellion and their Determination or Award is call'd Dictum de Kenelworth and was made to better the condition of the disinherited and to turn the Forfeitures and Loss of their Estates into a Composition for them after the value of five years Purchase to be paid at two or three short payments yet we do not find that to this Parliament the Commons were at all Summoned but to the contrary for though it is true that the Statute gives us all their Names Yet the Doctor further proves to you from Sir William Dugdale's Baronage that there was not one of them but what was either a Bishop or a great Baron of the Kingdom whereas had there been any Commons in this Parliament they would certainly have had Commissioners of their own order as well as the Bishops and Lords F. I shall give you a short answer to your Authorities from the Parliaments of Winchester and Kenelworth as for the former you must own that all the Rolls of it are lost and that there is no more left of it on Record than that Writ or Commission which the Doctor has given us which recites that by the unanimous consent of all the Magnatum or great Men as the Doctor renders it the King had the seisin and possession of all the Rebels Estates given to him which is no argument to prove that no Commons were there since I have so often made out that under this wordâ— Magnatum not only the Knights of Shires but Citizens and Burgesses were often comprehended 'T is true there are no Writs extant to prove the Commons were now Summoned neither is there any reason to believe the contrary since if it were a cunning invention of Montfort to Summon the Knights Citizens and Burgesses to abate the power of the Tenants in Capite it was sure as good policy for this King to continue so politick an Institution which would for the future serve for so good a ballance not only against his Tenants in Capite but his great Lords also as for the Parliament at Kenelworth I shall admit all the matter of Fact to be true as you have related it from Mat. Westminster who says that the Twelve Commissioners appointed to draw up the Statute of Kenelworth were chosen de Potentioribus Procerum Prudentioribus Praelatorum and also that the French Record cited by the Doctor together with Sir William Dugdale's Comment upon it make it out plain enough that the Lay Commissioners who were chosen by all the parties there named to make this Statute were all great Earls and Barons though in the Record it self only stil'd Knights Well what follows from all this that the Commons could have no hand in this choice because the tous Autres or omnes Alii mentioned in this and other Records must needs always signifie the smaller sort of Tenants in Capite and I say it signifies the Commons as now taken whether you have made good your Interpretation by any cogent proofs I must leave to your own ingenuity for to tell you the truth I think your Doctor has led you astray in this point and till you can make it out better than you have done I must beg your pardon if I keep my old opinion and if your Argument be good that no Commoners were there because none of them were chosen Commissioners then by the same Argument none of the small Tenants in Capite were there neither because none under the degree of an Earl or Baron were Elected As for the want of Writs of Summons to these Parliaments if that were to be the rule that makes as much against the rest of the Tenants in Capite who were no Barons nay the very Bishops and Abbots and Lords since there is no Writs of Summons found for their appearance at either of these Parliaments and so the King might call whom he pleased M. In the first place it does not follow that because Montfort had Summoned some of the Tenants in Capite to appear for all the rest and that he also called some Citizens and Burgesses to this Parliament of the 49 th yet the King might have very good reasons though we cannot now positively tell what they were nor to follow this new Invention of Monforts however it might then serve the turn for perhaps the King did not like it because introduced by a Rebel And he had also by his Victory at Evesham so quelled the power of the great Lords and Tenants in Capite that I believe he was afterwards able to call or omit whom of them he pleased according to the Testimony of Mr. Cambden's Nameless Manuscript Author cited in his Brittania that after the horrid troubles and confusions of the Barons Wars only those Earls and Barons Quibus Rex dignatus est brevia Summonitionis dirigere venirent ad Parliamentum suum non Alii And that this was true in matter of Fact I shall prove from the next Statute of Hen. 3. which is extant viz. that of Maâ—lâ—bridge made in the 52 d. year of this King to which there were no more Summoned than some of the more Discrâ—â—t of the Greater and Lessâ—r Barons as appears by these words in the Preface to that Statute Convocatis Discretioribus ejusdem Regni tam Majoribus quam Minoribus Brovisum est Statutum ac concordatum c. which seems to have been done by the King
that they ever should desire this as a Priviledge and therefore it is onely since the neglect of this good old Law for Wages that so many Burroughs which Mr. Prin here mentions to have had Precepts again sent them of late Years to Elect Members after some Ages Intermission desired to have this Priviledge renewed to them as was done in the Case of those Burroughs he here mentions which yet certainly had been very gross and contrary to all common Right if the House of Commons had not then believed those Burroughs to have a had higher Right by Prescription than the Sheriffs Precepts gave them as for the last Rank viz. those Burroughs created by the Writs or Charters of our Kings I need say but little since this Author here grants such Creations to have been good before the Statute of 5th of Richard the 2d but not since tho I cannot see any Reason for it why he should give the Sheriffs such Power of making new Burroughs after this Statute in the time of Henry 6th as he does in the Case of Gatton and those other Burroughs he there mentions with it and yet deny this King the like Prerogative But yet for all this as I will not say there were none so are there but very few Examples of Charters that conferr upon any City or Burrough a Power to send Members to Parliament who had it not before by Prescription tho I grant that Priviledge may be mention'd in the Charter and so put it in the Power of the Major and Aldermen to Elect for the future when it was the whole Populace or all the Inhabitants of that Town that were to Elect before But to shew you from the very Statutes themselves that Mr. Prin has here cited that the Right of the Cities and Burroughs to appear in Parliament was not anciently looked upon to have had no other Original then the Favour of the Sheriffs Pray read these Clauses of the Statutes he has here quoted the first is that memorable Statute of the 5th of Richard 2d 2d Parl. c. 5. now mentioned and which I have already cited which expresly Enacts That all and singular Persons and Commonalties which from henceforth shall for time to come have Summons of Parliament shall come from henceforth as before to Parliaments in the manner as they be bound to do and hath been accustomed within the Realm of England of old time and whatever Person of the said Realm which from henceforth shall have the said Summons be he Archbishop Bishop Abbot Prior Duke Earl Baron Banneret Knight of Shire Citizen of City Burgess of Burgh or other singular Person or Commonalty do absent himself and come not at the said Summons except he may reasonably and lawfully excuse himself to our Soveraign Lord the King he shall be amerced and otherwise punished according as of old times hath been used to be done within the said Realm in the said Case and if any Sheriff of the Realm be henceforth negligent in making his returns of the Writs of the Parliaments or that he shall leave out of the said Returns any Cities or Burroughs which be bound and of old Times were wont to come to Parliament he shall be punished in the manner as was accustomed to be done in the said Case of Old Time in the French d' Anciente From which Statute we may draw these Conclusions First That the Knights Citizens and Burgesses are as supposed by this Statute to have a like Right to have Summons to Parliaments as hath been accustomed of Old Time as well as the Lords Spiritual and Temporal here mentioned Secondly That by these Words have been accustâ—med of Old Time or d' Anciente we are to understand a general Custom of the Realm Time out of Mind that is by Prescription so that if the Bishops Abbott and Temporal Lords are here acknowledged to have had a Right to sit in Parliament by Prescription so have the Commons likewise by the same Words equally applyed to all the Orders here mentioned Lastly That if the Sheriffs shall neglect in making Return to any such Cities and Burroughs which were thus bound to come to the Parliament of Old Time he shall be punished as hath been accustomed to be done in all time past or d' Anciente now pray tell with what colour of Justice the Sheriffs could be thus punisht if there had been no certain rule to know what Câ—ties and Burrough were bound to come to Parliament of Old Time but it had been wholy left at the Sheriffs Discretion which they should Summons and which they would omit let us next compare this with the Statute of 23d of Henry 6th c. 15. which Mr. Prin has here also given us reciting That divers Sheriffs of Counties have sometimes returned none of the Knights Citizens and Burgesses lawfully chosen to come to the Parliaments but such Knights Citizens and Burgesses have been returned which were never duely chosen and other Citizens and Burgesses than those which by the Mayors and Bailiffs were to the said Sheriffs returned and moreover by no Precepts to the Mayors and Bailifts or to the Bailiff or Bailiâ—â—i where no Mayor is for the Electing of Citizens and Burgesses to come to the Parliament and then appoints the Penalties for the said abuses and neglects Now pray let me ask you whether this bare Abuse of the Sheriffs and neglect of the duty of their Office here condemned by this Statute and for which the former Statute of Richard II. declares them punishable at Common law as this Act makes them liable to it by Statute Law could give them such an Arbitrary Power as this Author fancies much less can serve to corroborate his Opinion as he here supposes it does concerning the true original continuance discontinuance reviving and antiquating Parliamentary Cities and Burroughs not by Charters and Patents from the King or Prescription time out of mind but by the Sheriffs Arbitrary Power and Returns by the forecited general Clauses in the Writs But since I confess I have dwelt too long on my Answer to Mr. Prin's Arguments I shall conclude with only giving you one Record which I hope will sufficiently satisfie you that not only St. Albans but several other Antient Burroughs claimed to send Burgesses to Parliament by Prescription which appears by a Writ or Commission reciting a Peâ—ition of the Town of Barnstaple to King Edward the Third and his Council in Parliament which is to be found in the Patent-Rolls of the 17th of this King seting forth that the said Town had been a Free Burrough à tempore câ—jus contrarii memoria non exisâ—it and as such enjoyed divers Liberties and Free Customs by a Charter of King Athelstan and this among others ac quod ad singula Parliamenta nâ—stra dictorum Antecessorum nostrorum among which the said King Athelstan must certainly be reckoned for one duos Burgenses pro Communitate ejusdem Burgi mittere solebant and therefore
of this I shall proceed with the earliest Instances of this kind after the Conquest viz. in the Time of King Richard the First during whose absence in the holy Land he had committed the Government of his Kingdom to William Bishop of Ely who abused his Power by an Arbitrary and Insolent Carriage affronting and oppressing Iohn Earl of Morton the King 's own Brother and Geoffry Arch-Bishop of York the King 's base Brother whereupon they rose up against him and having the Bishops the Earls and Barons of their side appointed the said Bishop a day to answer to his Crimes in the King's Court or great Council of the Bishops Lords and Tenants in Capite then called Curia Regis where when he refused to appear they all with one consent came to London and fought with the Followers and Adherents of the said Chancellour by the way when they came to Town Earl Iohn with the Arch-Bishops of York and Rouen with all the Earls and Barons together with the Citizens of London met in St. Paul's Church-Yard and there it was proposed that the said Chancellour should for his Evil Government he deposed and banisht the Kingdom and so he immediately was by the general Consent of the Common Council of the Kingdom so that you see the Nobility Clergy and People had then no notion of an Irresistible Power in the King and those put in Commission by him when they found their Power to grow Tyrannical and Insupportable M. But if I forget not you omit one material Circumstance in this Affâ—ir which seems to make against you which is that Arch-Bishop of Rouen and William the Earl Mareschal did at that time produce the King's Letters signed with his 〈◊〉 wherein he had appointed that they two should be associated in the Government with the Bishop of Ely and that he should do nothing without their privity and consents and of those associated with him in the business of the Kingdom and that if he offered to do otherwise he should be deposed So that it seems what they now acted was not so muchin opposition to the King's Commission as to the Bishops who had refused to obey his Commands F. I confess it was as you set forth yet this makes nothing against my Opinion since it is apparent that Arms were taken and this Resistance made by the major part of the Bishops Earls and Barons together with the Londoners before ever it was known that such Letters were written by the King And so it seems they would have done much the same thing if there had been no such Letters sent by the King at all You may also rememâ—er that all these proceedings also were approved of and confirmed by the King himself But that I may proceed in my History of Non-Resistance I come to the Reign of King Iohn his Brother who when he had refused the Arch-Bishop of Canterbury and all the Bishops Earls and Barons of the Kingdom to confirm the great Charter of King Henry the First they together with the rest of the great Men and People of the Kingdom of all degrees and conditions took up Arms and made a vast Army resolving never to lay them down till he had new granted and confirmed the Charters of Liberties and Forrests till at last the King finding himself almost quite forsaken so that he had scarce five Knights left about him he was at last forced to meet the said Bishops Earls Barons and People at Runne-Mead and there to grant them that great Charter which has been the Subject of so much discourse between us so that you see here that the Church of England in those Times if the Bishops and Clergy are the Representatives of this Church had then no notion of this Doctrine of Passiâ—e Obedienâ—e to the King 's Absolute Will and Commands M. I cannot deny the matter of fact to be as you say but yet you may remember that the same Author tells us that the Pope thought the King hardly dealt withal in this matter so that he gave Audience to the King's Ambassadors concerning the Rebellions and Injuries which the Barons of England had committed against their King and that upon a solemn hearing of the whole business and after a consultation with his Cardinals he did as Supreme Lord of Engâ—and after King Iohn's Resignation of his Crown to him by his Bull then published make void the said great Charters of Liberties and Forrests and condemn all the Barons proceedings as against their Duty and Allegiance to the King their Soveraign Lord so that it seems this was not approved of any where but by the Actors the Pope thereupon Excommunicating the Barons and Suspending the Arch-Bishop of Caâ—terbury for joyning with them F. I believe you will make nothing of this Objection for it appears from the same Author that the Pope had before this Excommunicated the King and as far as lay in his power depriv'd him of his Kingdom and absolved all his Subjects of their Allegiance so that it is plaiâ— it was not out of any true Principle or hatred of Rebellion and Resistance in Subjects that the Pope had thus acted but purely to gratifie the King at this juncture of time and to defend him in his Tyranny and breach of his own Charters because he was then become his Vassal and so he cared not how much he oppressed his Subjects because he was thereby the more able to pay him the Tribute before promised and he could also expect the more securely to extort Money from the whole Kingdom But that this Bull of the Popes was contrary to the King 's own Express Act and Agreement appears plainly by that Clause which is still to be found in a Charter under the Seal of this King and which seems to have been the Heads of the great Charter according to which it was drawn into the Form we now find it in Mat. Paris in which it is expresly provided and granted by the said King that in case he should go about to break or infringe any Clause in the said Charter and shall not amend it within the space of forty days that then Iâ—li Barones cum Communia totius Terrae distringent gravabunt nos modis omnibus quibus pouerint aut scil per captionem Castrorum Terrarum possessionum aliis modis quibus potuerint donec fuerit emendatum secundum arbitrium eorum salva Persona nostra Reginâ—e nostra Liberorum nostrorum cum â—uerit emendatum intendent nobis sient prius fecerunt So that you see here in the Judgment even of the King himself they might freely resist and take up Arms against him till he made good every Article of these Charters if violated and were not to return to their Obedience till it was amended and the like Clause almost word for word is also to be found in the conclusion of the great Charters published in Mat. Paris M. I grant the Clause is there as
his Father and to be Exiled from the Realm of England and that therefore the King that now is and the Queen his Mother being in so great Jeopardy in a strange Countrey and seeing the destructions and disinherisons which were notoriously done in England upon holy Church the Prelates Earls Barons and the Commonalty of the same by the said Spencers Robert Baldock and Edmund Earl of Arundel by the Encroachment of Royal Power to themselves and seeing they might not remedy the same unless they came into England with an Army of Men of War and have by the Grace of God with such puissance and the help of the great Men and Commons of the Realm vanquished and destroyed the said Spencers c. therefore our Soveraign Lord the King by the Common Council of the Prelates Earls Barons and other great Men and of the Commons of the Realm have provided and ordained c. as follows That no great Man nor other of what Estate Dignity or Condition soever he be that came in with the said King that now is and with the Queen in Aid of them to pursue their said Enemies and in which pursuit the King his Father was taken and put in Ward c. shall be impeached molested or grieved in person or in goods in any of the King's Courts c. for the pursuit and taking in hold the body of the said King Edward nor for the pursuit of any other persons not taking their goods nor for the death of any Man nor any other things perpetrated or committed in the said pursuit from the day of the King and Queens Arrival until the day of the Coronation of the said King This Act of Indemnity is so full a Justification of the necessity and lawfulness of the Resistance that was then made against King Edward the Second and his wicked Councellors the Spencers that it needs no Comment And tho' King Edward the Third took warning by the example of his Father and was too wise then to follow the like Arbitrary Courses yet Richard the Second his Grandson being a wilful hot headed young Prince fell into all the Errours of his great Grand-father and found the like if not greater Resistance from his Nobility and People for when he had highly mis-governed the Realm by the Advice of his favourites Alexander Arch-Bishop of York the Duke of Ireland and others a Parliament being called in the 10th Year of his Reign the Government of the Kingdom was taken out of their hands and committed to the Bishops of Canterbury and Ely with Thomas Duke of Gloucester the King's Uncle Richard Earl of Arundel and Thomas Earl of Warwick and nine or ten other Lords and Bishops but notwithstanding this the King being newly of Age refused to be governed by the said Duke and Earls but was carried about the Kingdom by the said Duke of Ireland and others to try what Forces they could raise and also to hinder the said Duke and Earls from having any Access to him But see what followed these violent and arbitrary courses as it is related by Henry de Knighton who lived and wrote in that very time and is more exact in this King's Reign than any other Historian he there tells us that when Thomas Duke of Gloucester and the other Bishops and Earls now mentioned sound they could not proceed in the Government of the King and Kingdom according to the Ordinance of the preceding Parliament through the hinderance of Mich. de la Poole Robert de Vere Duke of Ireland Nich. Brembar and Robert Tresillian Chief Justice and others who had seduced the King and made him alienate himself from the Council of the said Lords to the great damage of the Kingdom whereupon the said Duke of Gloucester and the Lords aforesaid with a great Guard of Knights Esquires and Archers came up towards London and quartered in the Villages adjacent and then the Arch-Bishop of Canterbury the Lord Lovat the Lord Cobham the Lord Eures with others went to the King in the name of the the Duke and Earls and demanded all the persons above-mentioned to be banished as Seducers and Traitors to the King and all the Lords then swore upon the Cross of the said Arch-Bishop not to desist till they had obtained what they came for the conclusion of this Meeting was that the King not being able to withstand them was forced immediately to call that remarkable Parliament of the 11th Year of his Reign in which Mich. de la Poole and the Duke of Ireland were attainted and Tresillian and divers other Judges sentenced to be hanged at Tyburn upon the Impeachment of the said Duke of Gloucester and the Earl of Arundel for delivering their Opinions contrary to Law and the Articles the King had not long before proposed to them at Nottingham I shall omit the Resistance which Henry Duke of Lancaster made after his Arrival by the Assistance of the Nobility and People of the North of England against the Arbitrary Government of this King being then in Ireland not only because it is notoriously known but because it was carried on farther than perhaps it needed to have been and ended in the Deposition of this King Only in the first Year of Henry the 4th there was the same Act of Indemnity almost word for word passed for all those that had come over with that King and had assisted him against Richard the Second and his evil Councellors as was passed before in primo of Edward the Third I shall not also insist upon the Resistance of Richard Duke of York in the Reign of King Henry the 6th who took up Arms against the Evil Government of the Queen and her Minion the Duke of Suffolk because you may say that this was justifiable by the Duke of York as right Heir of the Crown nor will I instance in the Resistance made by the Two Houses of Parliament during the late Civil Wars in the time of King Charles the First since it is disputed to this day who was in the fault and began this Civil War whether the King or the Parliament Only thus much I cannot omit to take notice of that the King in none of his Declarations ever denied but that the People had a right to Resist him in case he had made War upon them or had introduced Arbitrary Government and expresly owned in his Answer to one of the Parliaments Messages that they had a sufficient power to restrain Tyranny but denied himself to be guilty of it and still asserted that he took up Arms in defence of his just Right and Prerogative to the Command of the Militia of the Kingdom which they went about to take from him by force M. I have with the greater patience hearkened to your History of Resistance in all the Kings Reigns you have mentioned because I cannot desire any better Argument to prove the unlawfulness of such Resistance than those Acts of Pardon and Indemnity You cannot but confess have
make them the first breachers of it whereas you may find that it was the opinion of the whole Convocation for many years before ever those Divines or that Gentleman began to Preach or write upon this subject Nor were these the only men who maintained these Principles but Archbishop Usher and Bishop Sanderson whom I suppose you will not reckon among your flattering Court Bishops have as learnedly and fully asserted those Doctrines you so much condemn as any of that party you find fault with and have very well proved all resistance of the Supream Powers to be unlawful not only in absolute but limited Monarchies Of the Truth of which you may sufficiently satisfie your self if you will but take the Pains to read the Learned and Elaborate Treatises written by those good Bishops viz. The Lord Primate Usher's Power of the Prince and Obedience of the Subject and the Bishop of Lincoln's Preface before it as also the said Bishop's Treatise de Iura nouto written whilst he was Doctor of the Chair in Oxford F. I must beg your pardon Sir if I have never yet seen or heard of that Convocation Book you mention much less of the opinions therein contained since there is no mention made of their proceedings in any History or Record of those times either Ecclesiastical or Civil as I know of But this much I am certain of That these Determinations or Decrees you mention call them which you please never received the Royal Assent much less the confirmation of the King and Parliament one of which if not both is certainly requisite to make any opinion either in Doctrine or Discipline to be received by us Lay-men for the Doctrine of the Church of England otherwise the Canons made in 1640 would oblige us in Conscience tho' they stand at this day condemned by Act of Parliament so that however even according to your own Principles you cannot urge this Book as the Authoritative Doctrine of the Church of England unless their Determinations had received the Royal Assent which you your self do not affirm they had for you very well know that as in Civil Laws no Bill is any more than waste Parchment if once the King hath refused to give his Royal Assent to it so likewise in Spiritual or Ecclesiastical matters I think no Decrees or Determinations of Convocations are to be received as binding either in points of Faith or Manners by us Lay-men till they have received the confirmation of the King and the two Houses of Parliament or otherwise the consequence would be that if the King who hath the nomination of all the Bishopricks and Deaneries as also of most of the great Prebendaries in England of which the Convocation chiefly consists should nominate such men into those places which would agree with him to alter the present establisht Reformed Religion â—n Governmenâ— and to bring in Popery or Arbitrary Power the whole Kingdom would be obliged in Conscience to embrace it or at least to submit without any contraditioâ— to those Canons the King and Convocation should thus agree to make which of how fatal a consequence it might prove to the Reformed Religion in this Kingdom this Kings choice of Bishops and Deans such as he thought most fit for his turn would have taught â—s when it had been too late M. You very must mistake me Sir if you believe that I urge the Authority of this Book to you as containing any Ecclesiastical Canons which I grant must have the Royal Assent but whether that of the two Houses of Parliament I very much question since the King without the Parliament is Head of the Church and diverse Canons made under Queen Elizabeth and King Iames are good in Law at this day tho' they were never confirmed by Parliament But I only urge the Authority of this Book to you to let you see that these Doctrines are more Antient than the time you prescribe and also that the Major part of the Bishops and â—lergy of the Church of England held these Doctrines which you so much condemn long before those Court Bishops or Divines you mention medled with this controversie and I suppose we may as well quote such a Convocation Book as a Testimony of their sense upon these subjects as we do the French Helvetian or any other Protestant Churches Confessions of Faith drawn up and passed in Synod of their Divines tho' without any confirmation of the Civil Power F. If you urge this Convocation Book only as a Testimony and not Authority I shall not contend any further about it but then let me tell you that if the Canons or Decrees of a Convocation though never so much confirmed by King and Parliament do no further oblige in Conscience than as they are agreable to the Doctrine of the Holy Scriptures sure their determinations without any such Authority can only be look'd upon as the Opinions of so many particular private Men. And tho' I have a very great Reuerence for the Judgments of so many Learned Men yet granting those Doctrines you mention to be contained in this Book I think notwithstanding that we may justly examine them according to the Rules of Reason and express Testimonies of Scripture by either of which when I see you can convince me of the falshood of my Tenets I shall count my self happy to be beâ—â—er informed But as for those Treatises of Bishop Usâ—er and Bishop â—anderson which you now mentioned I must needs confess they are learnedly and elaborately writen and tho' I am against Rebellion as much as any man and do believe that subjects may too often be guilty of it yet am I not therefore convinced that it is absolutely unlawful in all cases whatsoever even in the most Absolute and Arbitrary sort of Civil Government for the People when violently and intolerably opprest to take up Arms and resist such unjust violence or to join with any Foraign Prince who will be so generous as to take upon him their deliverance So that though I freely acknowledge that those good Bishops you mention were very Pious and Learned men â—im â—hat I bear great reverence to their memories yet doth it not therefore follow that I must oâ—â— them to be Infallible or as great Polititians as they were Learned Divines or that they understood the Laws of England as well as they did the Scriptures or Fathers and perhaps there may be a great deal more said on their behalfe than can be for divers others who have since Wâ—â—een and Prâ—â— so much upon those subjects for if you please to consider the times of their writing those Treatises you will find them written about the beginning or middle of the late Civil Wars which they supposed to be begâ—n and carried on contrary to all Law and Justice under the pretenced Authority of the two Houses of Parliament against King Charles the First and therefore it is no wonder if they thought themselves obliged to Write very high for the Prerogatives
and Rights of Princes and the absolute obedience of Subjects when they saw even the Kings just and lawful Prerogatives in danger to be taken from him by force And altho' they may perhaps stretch several of these points too far yet this may be very excuseable since it is a hard matter to Write so exactly against any error as not to fall into the contrary Extream which nevertheless may sometimes prove useful enough As those who would set a stick straight are forced to bend it to the other side and so these Doctrines which might then be seasonable whilst the People carried on their animosities against the King farther than in Justice they ought have not now the same reason and cogency when this King hath so manifestly endeavoured to pull up the very foundations both of our Religion and Government So that I am perswaded could those good Bishops have lived by the course of Nature to our times and have seen the ill and fatal use hath been made of those Doctrines by those in Power they would either absolutely have renounc'd them or at least have been very cautious how they publish't such doubtful opinions to the World M. I must beg your pardon Sir if I am not of your Opinion for I look upon the absolute subjection of the subjects to the higher or supream Powers to be a thing of such constant and eternal Obligation that no change of times or circumstances can ever dispense with us in or discharge us from it and I am so far from believing that those good Bishops would ever have recanted their opinions in this particular that had thâ—y lived until this time I think they could not without the imputation of time servers have forborn publickly to declare and maintain them for sure we must not deny or lay aside true Principles because of some inconveniences or hardships that may thereby happen to our Religion Persons or Civil Liberties since that were the ready way to give a Licence to the rankest Rebellion and the highest disobedience to the Supream Powers for so the Primitive Christians might have claimed a right to Rebel against the Heathen Emperors pretending they were not bound to submit themselves unto them because they persecuted Gods Church and put the Christians to death for no other reason than that they were such Whereas we may plainly see St. Peter and St. Paul teach us another lesson and command absolute subjection without reserve to the higher Powers which were then the Tyrannical persecuting Emperours and that the Primitive Christians who immediately followed the Apostles understood them in this sense and altho' they had sufficient strength yet thought it unlawful to resist those â—eathen Emperor 's under which they liv'd I refer you to that vast Treasure of Quotations out of the Fathers and Antient Church Historians collected with such Learning and Industry by the Lord Primate Usher in the second Treatise F. It is not my intention Sir at present to fall into a severe examination of so many Texts of Scripture and Quotations of Fathers and other Authors as are made use of by those Learned Men you lately mentioned which require more consideration than our short time will now afford therefore the best method I can propose to you for the true stating and understanding this Noble Controversie were first to look into the Natural state of Mankind after the Fall of Adam and enquire First If God has appointed any kind of Government by Divine Institution before another Secondly If he has not how far Civil power may be lookt upon as from God and in what sense as deriv'd from the people Thirdly Whether Resistance by the Subjects in some Cases be incompatible and absolutely destructive to all Civil Government whatsoever Fourthly Whether such Resistance be absolutely contrary to the Doctrine of Christ contain'd in the Scriptures and that of the Primitive Church pursuant thereunto Fifthly Whether such Resistance be contrary to the Constitution of this Government and the express Laws of the Land Sixthly Whether what has been done by the Prince of Orange and those of the Nobility Gentry c. in pursuance of these Principles has been done according to the Law of Nature the Scriptures and Ancient Constitutions of this Kingdom which material Points if we can once suttle and discover where the Truth lyes it will prove the clearest Comment and best Interpretation of all those places of Scripture and Quotations of Fathers and other Authors which are Cited by Divines or other Writers for the Doctrines of the Divine Institution of Monarchy and the Absolute Subjection of Subjects without any Resistance For when we have once discovered what the Law of Nature or right Reason dictates I think we may rest satisfy'd that that is the true Sense of the Scripture God not having given us any Precept or Command in Moral or Practical things that can be contrary to the Law of Nature or Reason or incompatible with the happiness and welfare of Mankind in this Life as the Reveal'd Will of God does chiefly regard that which is to come M. I do very well approve of your Proposal and therefore pray give me first your Opinion on those Heads that I may see how far I may agree with you and wherein I must differ from you for I do assure you my Intention is not to argue with you meerly for disputes sake but that we may correct the Errors of each others understanding and discover if it be possible where the Truth lyes therefore pray Sir begin first with the Natural state of Mankind but remember to do it like a Christian and one that believes that we are all deriv'd from one first Parents and that we did not at first spring up out of the Earth like Mushrooms or as the Men whom Ovid â—eigns to have been produc'd of the Dragons Teeth Cadmus is feigned to have sown who as soon as they sprung out of the Earth immediately fell a Fighting and Killing each other F. I thank you Sir for your honest and kind advice and shall therefore in the first place suppose that the necessity as well as being of all Civil Government proceeded from the Fall of Adam since if that had not been we had still liv'd as the Poets fancy Men did under the Golden Age without any need of Kings or Common-wealths to make Laws against Oppression Theft Adultery Murder and those other Injuries which Men are now too apt in this lapsed corrupt state to commit against each other much less would there have been any need of Judges or Executioners either to sentence or punish Offenders for if Man had continued as free from Sin as he was in Paradise there could have been no need of a Supream Coercive Power since every Man would have perform'd his Duty towards God and his Neighbour without any punishment or constraint So that all the Authority that can be suppos'd could have been then necessary for the Good and Happiness of Mankind would
dare appeal to any indifferent Iudge for I think I have sufficiently made out that Resistance by the whole People or Major part of it against a general and Intolerable Tyranny is no Diminution of Supream Civil Power nor inconsistent with it nor is your Reason for your Opinion any truer than the rest that Private Persons whether taken single or in a whole Civil Society can have no Power but what is derived from the Supream which is by no means so for every private Man of the Society then acts by a Power precedent to it viz. the Natural Power of Self-Preservation or Defence which no man ever absolutely gave up neither for himself nor his Children when he became a Member of that Common-wealth Tho' he was obliged for the Peace of the Government or Civil Society to suspend that Right in order to a greater Good which once failing upon the Dissolution of the Government every Man 's Original Right takes place As for what you say against my Notion that Resistance is Lawful when it may prevent the Subversion of the Government your Reply to this is really Equivocal and consists in that false or wrong Notion you have of the Nature of our English Government which you suppose only consists in the Preservation of the King 's Personal Powâ—r without any respect to the Laws or Fundamental Constitutions of the Kingdom and that as long as the People are in Subjection whether to Legal Government or illegal Force it is all one the Government is still preserved which is a great mistake for the King receiving his Power from the Law and having no Authority but what that gives him when he overthrows the Fundamental Constitutions of the Kingdom he doth himself destroy the Government And therefore when in that Case the People do resist it is either to maintain it or else to restore it to the state that it was in before so that it is not the People in this Case who have subverted it but the King M. It now grows late and it is high time to give over but if you please to give me another Meeting I doubt not but to show you that by the Original Constitution of this Government the King not only hath the sole Supream Power but that by several Acts of Parliament all Resistance of the King or those Commissioned by him is absolutely against the Laws and fundamental Constitutions of this Kingdom and that they are all by our Laws Rebels that dare presume to make such unlawful Resistance And I desire that you would give me a patient bearing in this matter because I have so great a Kindness for you that I would not have you lye under so dangerous an Errour which may happen to prove fatal to your Happiness not only in the World to come but also to the Safety of your Self and Family in this Life if you should offer to put in practice what you have here maintained F. Sir I give you many thanks for your kind Intentions towards me since I do believe it proceeds from that real Friendship you have for me tho' as for the former of those Judgments you mention I hope I shall have no Reason to be afraid of it for any thing I can yet see from thâ—se Arguments you have hitherto urged But as for what may happen to me in this Life I hope I have as little Reason to fear it since I believe this great Revolution will not only Iustifie but for the future defend those Arms that have been taken up for the restoring the true Ancient Government of the Kingdom M. I confess Sir that you have now too much the advantage of me during these times of Anarchy and Confusion but yet I hope one day to see this unhappy Nation again recovered from this sad Apostacy into which I confess too many have lapsed and then I doubt not but these Primitive and Loyal Doctrines of Passive Obedience and Non-Resistance will be again restored to their former Integrity and Vigour F. Well Sir all I can say to you is that I see you are not only in Love with Slavery but also with thâ—se that would bring it in upon us yet however I think I may give you this good Advice that if you are not pleased with what hath been already done since you have had no hand in the doing of it you would be contented quietly to sit still and enjoy those Benefits that may thereby accrue to the whole Church and Nation since I thereby expect a firmer Settlement of the Protestant Religion as also of our Civil Liberties than we ever yet enjoyed M. I thank you for your Advice and you know as my humour is not to be Troublesome or Clamorous against that which is not in my Power to help so on the other side I heartily wish that the Prince may now agree with his Majesty upon such Terms as may prove for the good of the Church and security of the State But pray tell me when I may be so happy as to see you here again that we may fully resolve this last Question F. To Morrow I shall be engaged but the day after being one of the Christmas Holy-days I shall not fail to wait on you at the same hour and I am very well pleased to wait on you here since I foresee a great part of our next Conversation will depend upon Authorities out of Books with which your Study is very well furnished and my own are not in Town M. I shall expect your Coming with Impatience and in the mean time I am your humble Servant F. Sir I am yours FINIS Bibliotheca Politica Or A DISCOURSE By way of DIALOGUE WHETHER The King be the Sole Supream Legislative Power of the Kingdom and whether our Great Councils or Parliaments be a Fundamental Part of the Government or else proceeded from the Favour and Concessions of former Kings Collected out of the most Approved Authors both Antient and Modern Dialogue the Fifth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third and Fourth Dialogues 1692. THE Bookseller's Advertisement to the READERS THE Author has order'd me to beg your Pardons on his behalf that he hath made bold in this Discourse to deviate from the method he at first proposed for the subject of the ensuing Dialogue since instead of treating of the Original of Civil Authority and in what sense it is derived from God and in what from the People as he promised in his Epistle to the first Discourse he hath now made the Supreme Legislative Power and the Fundamental Constitution of our Government together with the Antiquity of Great Councils or Parliaments in this Nation whether they always consisted of Bishops Barons or Temporal Lords and Commons or not the Subject of this as well as of the ensuing Dialogue so that thâ—se grand Questions taking up two entire Discourses had the Author persued the Method he at first proposed
this Question was Sir Will. Dugdale in his Origines Juridiciales who though he Transcribed the same Notion and Arguments from the 〈◊〉 mentioned Glossary yet allows the Commons of England to have been always after some manner represented in Parliament though not by Representatives of their own chusing yet agrees with the Author of the passage in the Glossary that the Commons first began by Râ—bâ—llion in the 49th of Henry the Third Which Opinions being looke upon not only as Novel and Erronâ—ous but dangerous to the Parlamental Rights and Liberties of the People of this Nation were opposed by William Petyt Esq in his Treatise intituled The Rights of the Commons of England assertio which was also seconded by the Author of the Treatise called Jani Anglorum facies Nova but it was not long before both these Books were animadverted upon by Dr. Brady in two several Editions of his Answers to them and these were again vindicated by the Author of Jani Anglorum c. in another Treatise intituled Jus Anglorum ab Antiquo which hath not been yet answered I have been the more particular in giving an account of these Authors because the Controversie having been largely debated in them I have for the saving your trouble of reading so many several Books reduced all the material Arguments and Authorities man use of by both Parties in this weighty Controversie into this Dialogue and the next since so copious an Argument could not be dispatch'd in a less compasâ— And 〈◊〉 have not here given you all the Arguments and Authorities that are there made use of but only the most material and indisputable yet I hope I have used this Liberty with that sincerity and respect to those Learned Authors that none of them shall have any just caâ—â—t to complain of any Partiality And therefore I have as near as I could confined my self to the Words of those Authors as you will find by the Quotations in the Margin But I must own that having had the happiness of a long and familiar acquaintance with Mr. Petyt I have been furnished by him with divers Authorities both Manusâ—â—â—p and Printed not hitherto taken notice of by any on this Subject And had I the like opportunity of being personally known to the Dr I should have desired the same favour of 〈◊〉 for such Replies as he might perhaps make to them Therefore all I can now do in this Case is that if the Dr. or any Friend of his shall think it worth their while to peruse and impartially to consider these Discourses and shall then remain unsatisfied with any of the Authorities or Arguments here made use of if either he or they shall think fiâ— to mâ—â—â— any Observations on them and will communicate their Papers to the Publisher of these Dialogues I do here ingage to take care that they shall be fairly and truly published with Answers to them if they will admit of any in an Appendix at the end of the whole Work when it is finished I have little more to trouble you with than to assure you That all the Authorities here made use of from our English Historians and Records are truly cited without leaving out or concealing any thing that I thought made for or against either Opinion but as for the Records they are either such as having been sufficiently tried have passed for current between the Dr and his Antagonists or else such as I have seen and examined with my own Eyes and considered the purport of them But I hope you will pardon me if I seem too prolix in the beginning of this Disâ—â—â—se in the interpretation of divers Words and Phrases used by the Dr. and his Opponents in a quite different sense from our Ancient Historians Records and Statutes for if the â—â—â—ous use and equivocal meaning of those Expressions be truly stated and laid open according to the several Ages in which those Authors lived or such Laws were made I reckâ—â— this great Dispute as good as half ended All that I shall farther desire of you is carefully and diligently to peruse the Arguments and Authorities and to examine the truth of them your self if you doubt of any thing in them weighing and comparing Historian with Historian and Record with Record and sometimes both together as the Subject-Matter requires and then I kept you will be able to make a right and impartial Iudgment on the 〈◊〉 For as I have 〈◊〉 in my Province fairly to report other mens Arguments and Notions so it is yours to judge of them which I heartily desire may be without any unjust Byass or Partiality to 〈◊〉 Side THE Sixth Dialogue BETWEEN Mr. FREEMAN a Gentleman AND Mr. MEANWELL a Civilian M. SIR You are welcome and since you were pleased to send me word that you would come and sit with me this Evening I have been looking over all the Saxon Councils collected by Mr. Lambard and Sir H. Spelman and yet I cannot find in them any mention of Knights of Shires or Burgesses for Cities or Burroughs the only persons there mentioned as Members of those Great Councils being Archbishops Bishops Abbots and Great Lords and Iudges often called by the general 〈◊〉 Names of Magnates Principes Proceres Optimates or Primates Regni which were all comprehended under the Saxon Word VVites i. e. 〈◊〉 by whom as Sir H. Spelman shews us in his Glossary 〈◊〉 meant only Senators or Wise-men that is either Noblemen 〈◊〉 Great Lawyers VVite in Somner's Saxon Dictionary being first â—â—endred Optimas a Noble Man and then Sapiens a Wise-man So 〈◊〉 these VVites or Sapientes so often mentioned in our Ancient 〈◊〉 Laws when they are put alone signifie all the Ecclesiastic 〈◊〉 well as Lay-Members of the great Council such as Earls Alâ—â—â—men and Thanes and Judges as Dr. B. more particularly proves in his Glossary 〈◊〉 the end of his first Volume But by Principes and Optimates can only be meant Nobles or Chief Men as the Word Princeps Magnas and Optimas do alâ—â—ys signifie in the Latin Tongue That is to say such of the King 's great Officers Noblemen and Judges of the Kingdom as he pleased to chuse out and 〈◊〉 to his Great Councils either for their great Wisdom or Estates to make 〈◊〉 of their Advice and Assistance for the making of Laws Therefore pray shew me where there are any Commons once mentioned in any of these Councils or any that represented them Here are indeed particularly mentioned Arch-Bishops Bishops Abbots Aldermen Wites Great-men and Chief-men or Noblemen These were all the Orders of men that were then the constituent 〈◊〉 of those Great Councils Wittena-Gemotes And if the Commons as now taken and understood were then Members of them they must be comprehended amongst the Wites or Sapientes the Wise-men But that it cannot probably be so I shall prove 1. That most of the Saxon Laws in their Prefaces are said to be made and ordained by their Kings
the people then made a considerable part of the Great Council from the very beginning of the Saxon times M. Pray Sir will you give me leave to answer your Questions one by one as you go for fear I should not only forget them but also tire you with too long a Speech In the first place therefore give me leave to tell you that you are very much mistaken to suppose that by the Word Populus is here meant the common People or Vulgar Whereas when Clerus and Populus are used together in our Ancient Writers of those times it signifies no more than a Common Council of the Clergy and People or Laity and not the Common People for then the Lords or Great Men would have been quite left out of this Council as certainly they were not and so when Clerus and Populus are used together and thus contradistinguished then they are expressive of two different Estates or Conditions of Men or Christians the Clergy and Laity or secular Men and those were the Optimates Terrae the chief Men of the Land before expressed Neither was this Council held under a sole Saxon Monarch but under Ethelbert King of Kent only and that but eight years after Augustin's coming hither and above two hundred years before the Seven Kingdoms were united into one Monarchy F. I am not at all concerned at this Answer since I can prove that by the Word Populus must be here understood somewhat more than Kings Noblemen and Iudges viz. the Representatives of the Commons likewise or else the Saxon Witena-Gemotes were not what their Titles speak them to be Common or General Councils of the whole Kingdom that is of all the Estates or Orders of it there but only a Convention of the Bishops and Great Lords And therefore if the Word Clerus did then comprehend all the Clergy both Superior and Inferior i e. as well the Bishops as Abbots Priors Deans and Clerks for the Secular Clergy and Cathederal Chapters c. I pray give me a Reason why the Word Populus when put alone must be wholly confined to your Earls or chief Thanes and may not also take in the Middle or Less Thanes Freeholders or Lords of Townships and the Representatives of Cities and Burrough Towns and why not with as much reason as that the Word Populus amongst the Romans took in the whole Body of the People of Rome both Patricians and Plebâ—ians when assembled in their Comitiis Centuriatis to make Laws or create Magistrates The rest of your Argument is not very material for tho I grant this Council was held before the Heptarchy was united into a Monarchy yet I think it is very easie to prove that as all the Saxon Kingdoms consisted of several Nations of the same Language and Original so were they likewise under the same Form of Government And that Councils consisted of the same constituent Members 〈◊〉 I shall prove to you from the Kingdom of the West-Saxons from which was the Foundation of our present English Monarchy And for this I shall give you the Authority of Will of Malmesbury and H. Huntingdon who 't is highly probable had seen the ancient Histories and Records of those times and they both agree in the Relation of the Deposition of Sigebert King of the West-Saxons for Tyranny and Cruelty Anno. 754. the Words are remarkable which pray read Unde in Anno secundo ipsius Regni congregati sunt Proceres Populi Totius Regni provida deliberatione unanimi consensu omnium expulsus est a Regno Kinewulfus satus ex Regio sanguine electus est in Regem where you may observe a plain difference made between the Higher Nobility here called Proceres and the Representatives of the People here stiled Populi as also from another Authority of a Great Council held under the same King Aethelbert as it is mentioned by Roger Hoveden Domestick to King Hen. II. in the 2d Part of his Annals where among the Laws of King Edw. the Confessor and which he writes to have been confirmed by King William I. you will find under the Title de Aptbâ—â—s de aliis minutis Decimis which are there said to be given to the Clergy by former Kings and particularly by this King Ethelbert these Words Haec entâ—n Sanctus 〈◊〉 praedicavit docuâ—t haec concessa sunt a Rege Baronibus Populo So that it Populus â—ere doth not signifie an Order of Men contradistinct from the Barons or Great Lords it would have been a Tautology with a witness M. I must confess if this Authority you now urge had been as ancient as the time to which it is ascribed it would be of some weight but it appears by this Word Baronibus not used in England till after the Conquest that it was added long after that time by some ignorant Monk to the Confessor's Laws and therefore will not prove that for which you bring it viz. That the Vulâ—â—â— understood for the People or Commons in the sense they are now taken had any Place in the Saxon Great Councils But make the most of it this was but the confirmation of a Law made by King Aethelbert but how and by what Words the Legislators were expressed near 500 years after the Law was made or how they were rendred in Latin after the coming of the Normans transiently and without design to give an account of them cannot be of much Validity to prove who they were and that the Laws of King Edw. were made or at least translated into Norman Latin after the Norman Conquest appears by the Word Comites besides Barones already mentioned Militeâ— Servientes c. all Norman Words and not known here till their coming hither He that will assert any thing from a single uncouth Expression in one Case and upon one occasion only brings but a slender Proof for that he says so will any man think because 't is said in one of King Edward's Laws and perhaps no where else concerning this King's Coronation quod debet in propria persona â—â—am Regno Sacerdotio Clero jurare ante quam ab Archiepiscopis Episcopis Regni coronetur That the Priests were not Clergy-men nor the Clergy-men Priests and that the Arch-Bishops and Bishops were neither Many other uncoath Expressions do often occur in the old Monks which are to be interpreted according to the common usage and practice of the times in which they are delivered And therefore seeing before the time of the Conquest and for two or near three Centuries of years afterward the Commons as at this day understood were not called nor did come to Great Councils or Parliaments as I shall prove when I come to speak of those times So that by Barones must be here meant the Great Barons and by Populus the Communitas Angliae or which was then all one the Communitas Baronum the Less Barons or Tenents in Capite and the sense of the Words is
farther confirmed by several undeniable Authorities wherein by the Communitas Populi must be understood not the Community of the People or Commons but the whole Body of the Less Tenants in Capite But to give you an answer why the Word Populus could not comprehend all sorts of people among the Saxons as it did among the Romans but only the Nobility who were then properly speaking the only Freemen is this that none but the Nobility possessed any Lands in Fee-simple all the rest of the meaner sort of people then called Cheorl Folk holding theirs in Villanage under their Lords or Thanes being no better than meer Villains or Costagers and who were all bound to the Good Behaviour every tenth Family being bound one for another in the Sheriff's Torne or Court of Franc-Pledge under their Head or Tenth Man called the Tything-man who was to answer for them So that the common People of England were not such a Free People nor had any share in the Government as some suppose there being I believe no such persons as our Yeomen or Faâ—â—â—ers in those days F. Tho perhaps this Law might very well be transcribed from some old Copâ—â— of King Aethelbert's Laws not now extant and in which there might be the Word Thanes instead of Baronibus which is but a Translation of it in the sense iâ— which it was used not long after the Conquest Nor is it true which you affirm that the Word Barones was never in use before the coming in of the Normans in ancient Charters as I shall prove to you by this Charter of King Edgar to the Abby of Westminster containing a confirmation of their ancient Charters and Priviledges collected 〈◊〉 the aforesaid Sulcardus a Monk of Westminster as it is to be found in the Cottonian Library the Charter it self is long but concludes thus In Concilio habito infra Basilicam Westmonast Praesidente 〈◊〉 Filio suo Edwardo Archiepo Dunstano universis Episcopâ—â— Baronibus suis where you may see that the Word was not unknown before the time of William I. and I could give you more Instances of other Kings Charters where the same Word is used before the Conquest were it worth the while to trouble you with them And so likewise Populus for People or Folk in the Saxon Yet take it as you suppose to have been writ not long before the time Hoveden writ his History which was above 80 years before the 49th of Hen. III. This Author or whoever else added this Passage to this Law about Tythes did then suppose that according to the custom then used the People had Representatives in those Assemblies which I shall prove from your own sense of these words for if the word Populus signifies here another sort of men different from the Lords then this word Populus must necessarily signifie some that were Commons and not Lords by your own concession and who also must represent others besides themselves but it is highly improbable that by this word Populus should be meant the Communitas Angliae or the Communitas Baronum for then since the word Baronum would have included all the Tenents in capite both Great and Small to what purpose should the word Populus have been added at all Therefore I am so far from believing this way of expressing the several Estates of the Kingdom to have been a Monkish Blunder as you suppose that â—t was rather a common and ordinary way of Expression among the Writers of those Timeâ— as well in Records as Histories who then very well knew the People or Commons to be an Estate or Constituent part of the Common Council of the Kingdom quite different from the Lords and in which sense it is recited in an ancient Charter of King Iohn That He being divorced the New Queen was crowned de communi assensu concordi Voluntate Archiepiscoporum Episcoporum Comitum Baronum Cleri Pâ—puli totius Regni Where by Clerus it is plain must be meant the Inferior Clergy represented by their Proxies in this Great Synod or Parliament and by Populus was understood the People or Commons likewise present by their Representatives or else the Words Clerus and Populus had been idle Tantologies in this Record And in the like sense it is also used by Matt. Paris in the 9th of Hen III. presentibus Clero Populo cum Magnatibus Regionis Where this Author makes a plain distinction between the Magnates and the Populus which had been altogether in vain if the Word Magnates would have comprehended all your Greater or Less Barons or Tenants in capite But I shall in the next place proceed to that Great Synod or Council that was called by King Edward the Elder Anno Dom. 905. and is mentioned by Simeon of Durham and other Authors quoted by Arch-Bishop Parker the Compiler of the British Antiquities in these Words Plegmundus Cantuariensis Archiepiscopus â—â—â— cum Rege Magnifico cognominato Edwardo seniore Consilium Magnum Episcoporum Abbatum Fidelium Procerum Populorum c. convocavit Which Synod or Council was called to divide the large Dioceses of Winchester and Sherbarn into five other as I have already told you where you may plainly see the Words Fidelium Populorum put distinct from the Word Proceres if we take that Word to signifie only the Greater Nobility I shall now conclude with a few Words in reply to your Answer why the Word Populus could not among the Saxons take in all sorts of People as well as amongst the Romans for I cannot take it as a satisfactory answer for these Reasons 1. Because tho I should grant that the Vulgar sort of People were greater Slaves than they are now and that they had no hereditary Properties in their Estates but at the will of their Lords yet does it therefore follow that all the Freemen of the Kingdom were Noblemen or Gentlemen or else Villains as now understood since Nitardus tells us in the place above mentioned that there were three sorts of people among the Saxons Edelingi Frilingâ— Lazzi i e. Gentlemen or Noblemen Freemen and Slaves or Villains and this middle sort of men might also possess Lands in Allodio or Free-Tenure tho they did also depend upon other greater men for Protection and seem to be those who were after the Conquest called in Doomsday Book Commendaâ—â— i. e. such who tho they lived under the Protection and within the District of some Great Men Lord or Patron yet as Sir Hen. Spelman tells us were free both as to their Persons and Estates not as sworn to or holding of any but the King And besides these there were also great Bodies of men in Cities and Burgh Towns and those very considerable for Estates and other Riches who tho not nobly born and yet being Freemen it was but reasonable that they should have their Representatives in Parliament as well as the former M. I shall not at present
Lords or Peers of Parliament and that the rest being the lesser or lower Tenants in capite sometimes stiled Barones minores were for some time before this summoned by general Writs directed to the Sheriffs or Bayliffs as appears by King Iohn's Magna Charta Now whether these men were ever really Peers or not I have reason to doubt since I do not find but it was they alone who for some years after the Conquest served upon Juries in County Courts and dispatched all the publick business of the Country which was then as at this day a drudgery beneath the Peers to perform and therefore I shall not insist upon it But thus much I think is certain That they were a sort of persons much above any other Lay-men of the Kingdom since they held their Estates immediately from the King and were so considerable as that by the Constitutions of Clarendon they were not to be Excommunicated without the King's leave and so were then in some sort of the same Order ratione Tenurae with the great Barons or Peers being commonly stiled Barones and made up but one Estate or Order of Lay-men in Parliament And from thence I suppose proceeds that common Error of Sir Ed. Coke that the Lords and Commons did anciently sit together and made but one House Now if you have any thing to object against this Notion pray let me hear it F. I think you and I are come pretty near an issue in this question for you confess that these lesser Tenents in capite and whom you comprise under the word Barones were not truly and properly Barons and so far you are in the Right but yet you will have them to be somewhat more than mere Commoners as if there had been some Degree or Order of men in England in those times who were neither Lords nor Commons but an Amphibious Race between both But to prove that they were indeed no more than Commoners and not Lords nor Peeâ—s at all nor equal with them we need go no farther than their way of Trial in cases of Treason or Felony which was by mere Commoners who were not Tenants in capite as well as those that were so that a person who was no Tenant in Capite and might serve upon a Jury of Life and Death upon them and as well as the Dr. in his Answer to Mr. P. as you asserted that they only served in the Country upon all Iuries and that before the time of King Iohn So after all this noise of none but Lords and Tenants in capite appearing for the whole Commons of England we find by your own showing that three parts in four of the Lay Members of that Council were as meer Commoners as our Knights of Shires and Barons of the Five Ports at this day nor can I see any reason why these latter might not be as well comprehended under the Word Barones as the former who were meer Commoners likewise if we consider that it was neither Nobility nor Birth nor the King's Writs of Summons but only the meer Tenure of their Lands that gave them a particular right to a Place in that Assembly in those Ages or if a meer Citizen could get Money enough to purchase such an Estate in capite he was as good a Member of Parllament as the best of them all So that the Question then amounts to no more than this Whether the Commons of England were then represented by Tenants in Capite or by Knights of Shires and others as they are now But since you will have none Commoners but Tenants in capite to have had places therein pray tell me whether you allow that Priviledge to all who held in capite or not M. Yes I allow it to all who held in capite by Knights Service and who also enjoyed a whole Knight's Fee or so much as was sufficient to render them able to sustain the Dignity of that Place not but that the King had also a prerogative of summoning or omitting whom of them he pleased to his Great Council or Parliament till the Less Tenants in capite thinking it a wrong to them it was provided by King Iohn's Charter that all of them should be summoned by one General Writ of Summons directed to the Sheriff But I exclude from this Concil all Tenants by Petit Serjeanty who tho 't is true held of the King in capite yet was it not by Knights Service So likewise I exclude all Cities and Towns tho the Citizens or Burgesses of divers of them held their Lands and Tenements by that Tenure since being neither noble by Blood nor having Estates sufficient to maintain the Port of a Gentleman or Knight they had no Right to appear there in Person among the other Tenants who were owners of one or more Knights Fees Yet do I not affirm that the Commons were not after some sort represented in Parliament by their Superior Lords tho not as Commoners since the Bishops Abbots and other Barons did then make Laws and give Taxes not only for themselves but their Feudatory Tenents also tho of never so great Estates and Tenure in capite was then looked upon as the only true Freehold of the Kingdom and the Tenents by it as the only true Freeholders F. I shall shew you by and by the falsity of this Notion but in the mean time pray tell me when a Great Council or Parliament was called who represented those Persons who you say did not appear there and made General Laws and granted General Taxes for themselves and the whole Kingdom when there was occasion For I see you shut out the greater part even of these your true Freeholders from this Assembly M. As for the Tenents in Petit Serjeanty I at present conceive tho I am not sure of it that many of them might hold Lands and perhaps divers Knights Fees by Grand Serjeanty or Knights Service also since those Estates which were given by the Conqueror to his Servants to be held of him by such and such Petit Services might in process of time fall by Purchase or Descent into the hands of such Great Tenents in capite as had sufficient Estates to maintain that Dignity and as for the rest they might for ought as I know before the Statute de Tallagio non concedendo have been taxed by the Kings Writs according to the proportion of the Knights Fees or parts of Knights Fees which they then held and according to the Rate of the Sums imposed in Parliament either by way of Aids upon every Knights Fee or else by way of Subsidy by so much a yard or Plow Land throughout all England which has been the only way of taxing ever since that of Knights Fees hath been disused F. Then I find after all you have said that scarce half your Tenents in capite had any Votes in Prrliament either by themselves or their Representatives and so having Laws made for them and being taxed at the King's Will were as
in these two Quotations since in that out of Camden you cannot deny but he hath truly quoted that Author as it was in his First Edition and if he afterwares altered it it may very well be questioned whether he did not add the Word Superiores rather out of fear of displeasing the Greater Nobility whom that Quotation had before Shockt than out of any sense of his being in the Wrong as it appears by the Words immediately following when he tells us out of a nameless Manuscript Author That Henry III. out of so great a multitude of Barons which was seditious and turbulent called the best and chiefest of them only by Writ to Parliament By which it plainly appears that he supposed all those Less Barons or Tenants in capite tho no Lords as now understood who were thus excluded to have been only Nominal and not Real Barons and if so Commoners or else he must extend the Peerage of England to at least Three or Four Thousand Persons For so many Tenents in capite might very well be at that time The same I may likewise say as to the Quotation out of Mr. Selden for by the Words quibus peculiaris in ordinum Comitiis locus est 't is plain he supposed that all the rest of those Tenents in capite were but meer Commoners yet he no where affirms that none but these appeared in Parliament for all the Commons of England for he very well knew the unreasonableness of that Supposition Since besides these Barons or Tenants in capite Bracton in his first Book tells us of divers other Orders of Men of Great Dignity and Power in this Kingdom about the time when you suppose this marvellous Alteration to have happened His Words are these Et sub iis viz. Regibus Duces Comites Barones Magnates sive vavassores Milites etiam Liberi Villani deversa Potestates sub Rege constitutae and a little farther sunt alti Potentes sub Rege qui dicuntur Barones hoc est Robur belli sunt alii qui dicuntur Vavassores viri 〈◊〉 Dignitatis From which Words I desire you to observe that he here makes the Magnates and the Vavassores or Feudatory Tenants to be all one and also ranks them before the Milites Now whether these Vavassores and Milites who did not all hold of the King in capite were men of so great Dignity and Power as these whom he here reckons immediately after the Earls and Great Barons should have no Votes in Parliament neither by themselves nor their Representatives is altogether improbable And agreeable to this of Bracton Du Fresne in his Lexicon Tit. Vavasor tells us that Vavassorum duo erant ordines sub majorum apellatione implectuntur qui Barones apellantur sub â—norum vero quos vulgò Vavassores dicunt ut leges Henrici I. Reg. Ang. Thaines minores respectu Thainorum majorum qui Baronibus aequiparantur But that these Lesser Thanes or Vavassors were also stiled Barones Sir H. Spelman tells us expresly in his Glossary Tit. Baro etiam Barones Comitum Procer umque hoc est Barones subalterni Baronum Barones sâ—pissime leguntur and of this he gives us many Examples and particularly of the Chief Tenants of the Abby of Ramsey above mentioned So likewise the same Author a Leaf or two farther speaking of the Barones of London mentioned in the Charter of King Henry I. understands them pro civibus praestantioribus qui socnas suas consuetudines i. e. Curias habuerunt Privilegia eorum instar qui in Comitatu Barones Comitatus dicuntur c. Nor did this Title of Barones extend to London alone but he also immediately tells us in the same place Sic Barones de Ebaraco de Cestria de Warwico de Soe Feversham plurium Villaram Regiis Privilegiis insignium cum in Anglia tum in Gallia c. and that Barons of Counties were no more than Lords of Mannors I have just now proved for Socna means no more than a Court Baron or Court of a Mannor So that here arises a plain distinction between the Barones Regis the King 's Great Barons or Tenants in capite and these Lesser Barons we now are here speaking of called Medmesse Thegnes and Burgh Thegnes by the Saxons till they 〈◊〉 on the Word Parliamentum to signifie the Common Council of the Kingdom who tho no Peers yet were Barones Regni Barons or Noblemen of the Kingdom according to the general acceptation of the Word Nobiles in that Age and is such made up the Body of the Baronage called by Matt. Paris and other Authors Baronagium or Communitas Baronagit totius Angliae M. I see you do all you can from the equivocal use of the Word Barones to croud in new and unknown men into the Great Council of the Kingdom viz. your Barons of Counties Cities and Towns whom since you dare not affirm there were then any Knights of Shires you suppose to have served instead of them and these you would have to be not Barones Regis but Regni or Terrae forsooth i. e. of the Land or Kingdom whereas we never had any True Barones held by mean Tenures here in England this if you deny you must deny all History and all our Ancient Laws and Law-Books too and if you grant it you must confess that every Baron was a Tenant in capite and by your own Concession he must then be the King's Baron or Baro Regis I grant indeed there were Nominal or Titular Barons such as you mention many in those Times such as were Tenants to Great Lords Bishops or Abbots of whom we find frequent mention in our Ancient Histories Records and Charters But these are not the men who had ever any Place in our Great Councils and I desire you would prove to me that ever they appeared there before the Times I assign and I would also have you inform your self of the Gentlemen of whom you borrow this Notion if they can prove that there were any such kind of Tenure as Tenura de Terra or de Regno or whether there was ever any man that held an Estate de Regno Whether forfeitures or Escheats were to the Kingdom And whether Fealty was sworn or Homage done to the Kingdom Or whether an Earl was invested or Girt with the Sword of the County by the Kingdom Or whether the ancient Ceremonies used at the Creations of Earls and Barons were done by the Kingdom Thus all the Barons of England held of the King and thus all these things were performed and done to our Ancient Kings and by them which are most manifest Notes of the King 's immediate Jurisdiction over the Barons and that they were his Tenants in capite and by consequence his Barons only which you cannot deny and of which Tenants in capite the Earls and Greater Barons always created by Investiture of Robes or other Ceremonies were summoned by particular Write
and the other Less Barons or Tenants in capite ever since the 17th of King Iohn were summoned by one Common Writ directed to the Sheriff of the County since which time if not some time before I grant these Tenants in capite were not look'd upon as Barons or Peers of the Kingdom properly so called Yet did their Votes in Parliament still conclude and charge their Tenants in the making and imposing of Taxes or Laws which they alone together with the Bishops and greater Barons still performed until the Times I assign F. I see you are in a Wood and do not know well under what Class to rank your Tenants in capite for if they were at first all Lords or Peers how could they serve upon Juries in Hundred or County Courts If they were meer Commoners then there were Commons in Parliament before the 49th of Henry III. and why might not others as considerable Commoners have Places in the Great Council as well as they whether they were the Kings Barons or Tenents in capite or not But in answer to this you tell me that we never had any Barons held by mean Tenure here in England this is plainly equivocal for if you mean it of Baronies in capite it is true if of other Baronies it is false by your own Confession And Sir H. Spâ—lman tells us in the Title last quoted that the Barons of Burford pleaded to hold of the King per Baroniam and yet he was never any Baron of the Kingdom Now I desire you to shew me if he and such like Barons as himself had no place in Parliament who it was represented them there And therefore in answer to your Dilemma I grant that every Baron by Tenure was a Tenant in capite but every Tenant in capite was not a Baron and this I think is so plain that you your self cannot deny it But in answer to your next Question I can answer it without asking the Gentleman from whom you suppose I borrow the Notion that there might be other Barons or Lords of Mannors who by reason of their Estates might have Places in Parliament supposing Knights of Shires were not introduced till after Henry the II. or King Iohn's Time when such Freeholders became too numerous all to appear in person and yet these might not be Barons by Tenure And therefore all your Questions conclude nothing For you suppose that which is still to be proved That because all the Barons of England properly so called held of the King in capite and were consequently his Barons that therefore none but Bâ—rons and Tenants in capite had any place in our Great Councils which is the thing you only suppose and I as positively deny M. Well Sir since you put it to that issue I hope I shall fully convince you that none but the Persons I have mentioned were the constituent Members of the Common Council or Parliament before 49th Hen. III or 18th Edw. I and who done gave assent to all Laws that were made and all Taxes that were to be imposed on themselves and their Under-Tenants who were then concluded by the Acts of their Superior Lords But not to wrangle with you any longer about the signification of the Word Barones I grant there were Nominal or Titular Barons very many such as I have mentioned nay that there were several other Great Subjects who had Tenants that held 5 6 7 8 〈◊〉 nay more Knights Fees under them and who had the Name and Title of Barons But what is this to the purpose I desire you would prove to me by any direct proof that these sort of men had any Voices either by themselves or their Representatives in our Great Councils till after the time we allow them and this besides the Proofs I have already brought I think is sufficient Since it is plain that the Barones Regni or Terra and the Milites and Homines sui are all one and the same Persons that is they were the King 's Great Barons or Tenents in capite who alone constituted the Baronage or University of the Baronage of England or of the Kingdom in our Great Councils or Parliaments And for the farther proof of this I need go no farther than those very Arguments your own Author Mr. P. hath made use of in his Right of the Commons asserted wherein he would prove from certain Letters that were sent from the Baronage or University of the Baronage of England to the Pope against the Church of Rome's Exactions here in England And therefore I shall not bring only Fragments Phrases or single Words out of the Records or Histories which seem to countenance my Opinion contrary to the true meaning of those Records and the sense of the Historians as some of your men do but shall give you the Quotations out of those Authors whole and entire and shall make such reasonable Deductions from them as I think you will have no reason to deny to be fairly raised from the Words themselves And also as Matt. Paris relates in the 29th Hen. III. the Earls and Barons sent Letters to the Pope then at the Council of Lions to complain of the Pope's Exactions which Letters are said by this Author to be directed A Magnatibus Universitate Regni Angliae And tho it is also true that in the same Year there were other Letters sent thither from the same Parties to the Cardinals there assembled which are recited by the Old Manuscript to have sent Messengers to the Cardinals and the Old Manuscript in the Cottonian Library that they sent to the Cardinals assembled at the Council of Lyons Letâ—ers a Baronibus Militibus universis Baronagii Regni Angliae per procuratores 〈◊〉 Rogeram Bigod Comitem Norff. Willielmum de Cantelupo Iohannem silium Galfriâ—â—â— Radulphum filium Nicholas Philippum Basset Barones Procuratores Baronagii Angâ—â—â— tunc temporis Innocentio Papa Quarto celebrante Concilium ibi generale Anno Gratia 1245. And the Letters are thus directed Venerabilibus in Christo Fratribus uniâ—â—sis Singulis Dei Gratia Salutem Barones Milites Universitas Baronagii Regis Angliae And that Matt. of Westminster does likewise agree in this Relation only stiles the Persons last named Milites whom Matt. Paris calls Viri Nobiles discreti But this will make no difference as I shall shew you by and by And to these Matt. of Westminster adds Mr. William Powic Clark who seems to have been their Secretary But notwithstanding it will appear that all these Persons so sent named Barones Milites universitas Baronagii did not represent the Commons of England at all but only the Great Earls Barons and Tenants in Capite For first it appears from Sir W. Dugdale's Baronage of England that every one of the Persons here named was either an Earl Baron or Great Tenant in capite and nâ—â— Common Persons as your Author would have them And tho it true the Cottonian Manuscript
and Matt. of Westminster calls some of them Milites yet this makes nothing against our Opinion for as I proved before the Great Milites were often stiled Barons and the Barons Milites Nor was this Earl and the four Barons here mentioned chosen or sent by the Baronage of the Kingdom assembled in Parliament to represent them at the Council of Lyons but were only pitch'd upon by a Body of Military men or Barons at a Tornament intended to have been held at Dunstable which was forbidden by the King and these took upon them to warn Mr. Martin the Pope's Clerk out of the Kingdom as appears by the Account Matt. Paris gives us of this Business in the Paragraph immediately following So that the History of the thing makes it plain who were the Universitas Regni to wit the Barons or the Universitas Armatorum who were met to hold the Tournament and these the King there called his Barons And after this in the 30th of Hen. III. when the Pope did not give satisfaction to their Grievances the King called as this Author tells us 〈◊〉 Parliamentum generalissimum totius Regni Anglicani totalem Nobilitatem Londini viz. Prelatorum tam Abbatum Priorum quam Epiâ—coporum Comitum quoque Baronium ut de Statu regni jam 〈◊〉 efficatiter prout exegit urgens necessitas contrectarent In this very Parliament the King conferr'd with the Bishops by themselves and the Earls and Barons by themselves about this Business of the Pope's not keeping his Promise And certainly if there had been then any Commons in this Parliament he would have also conferred with them about the same matter The result of all these Conferences was that yet for the Reverence due to the Apostolick See they should again supplicate the Pope by Letters to remove their intolerable Grievances and insupportable Yoak And this they do in separate Conferences The Bishops write by themselves the Abbots and Priors by themselves and the Earls Barons c. by themselves to the Pope and if there had been any Commons as at this day they most certainly would likewise have wrote to the Pope as well as the other Constituent Parts of this Parliament did F. I hope I shall be able to answer what you have now said In the first place tho I should grant that these Commissioners sent by the Baronage of England were all of them Barons and no Commoners among them doth it therefore follow that the persons that sent them must have been all Lords too For if those Commissioners were all Peers who represented your Barones minores or Tenants in capite who as you your self have granted were no Lords at all and why might not those Lords as well represent all the Commons of England as they did these Lesser Tenants in capite So that it seems plain to me that these Words Universitas Baronagii Angliae must needs then comprehend somewhat more than your Barons and Tenents in capite only since the Words Barones Milites alone and sufficiently expressed all the Constituent Members of your Parliament without adding Universitas Baronagii which would have been a Tautology but that it was very usual for the great Lords in those days to write Letters in their own Names as also for all the Commons of England I shall shew you by and by when I shall make use of two other Instances of a like nature in the Reigns of Edw. I. and Edw. III. And therefore it is no good Argument to prove that the Commons had no hand in this Message or Letters because they did not write by themselves much less is it so because it is not expresly mentioned by Matt. Paris that the King consulted the Commons as well as the Bishops Earls and Barons that therefore they were not there Since this Author writing very concisely comprehends all the Lay Estates under the Words Comites Barones or else Magnates alone So likewise Matt of Westminster when he mentions divers Parliaments in the Reign of Edw. I and Edw. II expresses them under the same Title And tho' this Author often mentions the Earls and Barons to have done this or that yet it is no Argument to conclude that the Commons were not then there And for this pray take these Examples our of Matt. VVestminster when Anno Dom. 1300. the 28th of Edw. I. he tells us the King held his Parliament at Lincoln where the Comites Barones demanded a Confirmation of the Great Charters and they further askt that the Deforestations made by the King should be confirmed and then he tells us that thereupon the Charters of Liberties and Forests were again renewed and being past under the Great Seal were proclaimed before all the People in every Country Where you see that the Complains were made by the Earls and Barons yet it is certain that the Confirmation of these Charters must have proceeded from all the Estates for the Bishops and Abbots and Priors are there no more mentioned than the Commons who were then as Barones Majores Constituent Members of this Parliament So also Henry De Knighton Anno Dom. 1301. the 30th Edw. I. tells us of a Parliament this King held at Stamford where met the Earls and Barons and with great courage persisted until they had got the Charter of Forests fully granted and confirmed to them Where note that tho by way of excellency the Earls and Barons who then bore the greatest sway are here only mentioned yet it is certain that the Commons were also summoned to this Parliament Now if these Later Historians pass by the Commons tho then Constituent Members of Parliament without any one express Mention why might not Matt. Paris do so too But that he did do so appears very plainly from the Letters of the Parliament held in 30th Hen. II. to the Pope and Cardinals being still at the council of Lyons to remove the intolerable Grievances above mentioned That to the Pope is tecited at large by Matt. Paris tho that to the Cardinals is omitted by him but in an Ancient Manuscript of the time extant in Sir Iohn Cottons's Library of both Letters are said to have been sent to the Cardinals at Lyons a Baronibus Militibus universitatibâ—â— Bâ—â—â—nagii Anglia Now who these were the subsequent Letter to the Pope in Matt. Poris will inform us which begins thus Sanctissimo c. 〈◊〉 filii Sui Richardus Comes Cornubia c. together with divers other Earls there named but the Barons and Commons are not particularly recited but are comprehended under these General Words Barones Proceres Magnates ac Nobiles Portuum marishabitatores necnon Clerus Populus universus salutem And pray note that Matt. Paris had before called this a Parliament Convenientibus igitur ad Parliamentum totius Regni Magnatibus Which Words take in the Knights of Shires as the Nobiles Portuum Maris habitatores doth the Barons of the Cinqâ—â— Ports
answer it I confess it appears very specious at first sight but what if I shew you that this Letter was written by the Lords only from Lincoln after the Commons had been dismissed from thence by proâ—ogation or Adjournment For tho it is commonly story'd but erroneously that this whole Parliament or at least the Temporal Lords and the Commons wrote to the Pope concerning the Jurisdiction and Superiority of the Kings of England over the Kingdom of Scotland Yet it cannot be so for this Parliament met on the Octaves of Hillary or the 20th of Ianuary and sate but eight days the Writs for the Commons Expences bear date Ianuary the 30th of the same Year and the Letter to the Pope signed by the Temporal Lords for themselves and the whole Community of the Kingdom of England is dated Feb. 12 th next following at Lincoln after the Commons had been discharged 14 Days So that you see the Barons still continued to stile themselves the Community of England and both Spiritual and Temporal Barons and other of the King's Council did stay and dispatch much Business after all others were dismissed according to the Tenor of the there recited Proclamation and may be fully proved from the Proceedings of that Paâ—liament as they are to be found in Ryley's Plâ—cita Parliamentaria So that nothing seems plainer to me than that the whole Community of England for whom the Barons there named set their Seals to that Letter you mentioned were the Community of the Barons only F. I confess Mr. Pryn in his Animadversions upon my Lord Coke's 4th Institutes was the first who started this Objection That the Commons could not be present as parties to this Letter Yet he still supposes that the Lords who stayed behind and made a kind of a Great Council at Lincoln signed it not only for themselves but for the Commons also tho not actually there and is not so extravagant as your Dr. to suppose that by the Words in this Letter Tam pro Nobis quam pro tota Communitate c. are to be understood the Community of Barons only for that would have been a Tauâ—ology indeed For so the last Word Communitas c. would have signified no more than that they subscribed for themselves and themselves and that the Word Cummaâ—â—tas Regni which I can prove to you by many Examples did then signifie the Commons of England must here mean more than your Community of the Earls and Barons For pray take notice that the Tenants in capite had now by your own concession left off to appear in Parliament in a Body as being now represented by the Knights of Shires c. So that Sir Edward Coke very well observes in his Fourth Institute that this Letter was sealed by above 104 Earls and Barons by the assent of the whole Commonalty in Parliament and Mr. Pryn is so far convinced of this in his exact History of Papal Usurpations that he â—tiles this Letter The Memorable Epistle of the Earls Barons Great Men and Commons of England c. But to shew you farther that there was no change neither of the constituent parts of our Ancient Parliaments nor of the Terms by which they are expressed our Ancient Records appears by a Plea among Mr. Ryley's printed Pleas of Parliament in 35th of Edw. I. where it is recited that in a Parliament at Carlisle Will. de Testa the Pope's Clerk was impeach'd per Comites Barones alios Magnates Communitatem totius Regni concerning divers new and intolerable Grievances laid upon them by the Pope Where you see there is no change of this Word Communitas after the Commons were as you suppose certainly present in this Parliament and why the same Word should not signifie the same thing in the beginning of this King's Reign as well as now you had need give me very good Authority to prove the contrary against such clear evidence as this But this Record goes on and farther recites that these Letters were sent to the Pope Ex parte Communitatis praedictae and in which Clerus Populus dicti Regni set forth the said grievances to the full Now as the Word Clerus here expresses all sorts of degrees of Clergy as well Superior as Inferior represented in Parliament and Convocation so much Populus here signifie the Laity of both Orders as well the Commons as Lords since the Commons were certainly present at this Parliament and why the Word Populus should not signifie the same thing long before I can see no Reason for it but the Dr.'s bear Assertion And as for what you say that the Commons could be no parties to this Letter because it appears by the Writs of Expences that they were discharged before this Letter was written admitting it were so it makes nothing against my Assertion For why could not the Commons agree upon the Substance of the Letter and leave the Lords to draw it up and subscribe it for them after they were gone home And that it was so appears by the Letter if self which recites That the King had caused the Pope's Letter In medio or pleno Parliamento exhiberi ac scriose nobis fecit exponi unde habito tractatu deliberationâ— Diligenti super câ—â—tentis in literis vestris memoratis communis concors unanimus omnium singulâ—râ—m consensus suit c. Now every one knows that understands any thing of Parliamentary Affairs that when any thing is said in an Act of Parliament or other Record to have been agreed upon in full Parliament that is always understood to have been done all the Estates being there present Nor can I see any reason why this Letter should not be called the Letter of the Commons as well as of the Lords since the very Statutes of that Age were often said to have been assented to by the Commons tho it is clear they were not drawn up into form till after the Parliament was dismissed But that the Commons were certainly parties to this Letter appears by a Record of the beginning of Edw. III. time printed by Mr. Pryn keeper of the Records of the Tower and which he tells us he found among the Rolls in the White-Town which Record contains the Heads of a Defence compiled by the King's Council in order to a stronger Defence against the Pope's taking cognizance in the Court of Rome concerning the King of England's Superiority over Scotland in the conclusion of the 2d of which Records there is a remarkable Article relating to this very Letter now before us in these Words Item ad finem quod Nobiles Regni Angliae Procuratores Crâ—munitatis subditorum Regni praedicti admittantur per ipsum Domiâ—â—â— Regem ad hujusmodi defensiones propenend prout corum Antecessores ab Avo Dicti Domâ—â—â— Regis nostri â—rant admissi Now to what Transaction of this kind in the Reign of Edw. I. this King's Grandfather can this passage
have already proved that the whole Parliament as well the Lords Spiritual and Temporal as Commons were both before and after this time comprehended under these words Nobilitas Angliae and if you yet doubt of it I can give you a plain Authority out of VValsingham for it is in his Life of Edw. II. Anno 1327. where relating the manner of that King's Deposition he tells us That when the Queen and Prince came to London there then met Tota Regni Nobilitas to depose the King and chuse his Son in his stead and then there was sent to the King being Prisoner in Kenelworth Castle on behalf of the whole Kingdom two Bishops two Earls two Abbots and of every County three Knights and also from London and other Cities and Great Towns especially the Cinque Ports a certain number of persons who informed him of the Election of his Son and that he should renounce the Crown and Royal Dignity c. This Proof is so plain it needs no Comment As for the rest of your Argument the strength of it chiefly consists in this that the Tax there mentioned is said to be granted à Militibus or Tenants in capite as you would have it of three Marks upon every Knight's Fee But in the first place I desire you to take notice that this Scutage is not Scutage Service but a general Land Tax or Manner of taxing according to Knights Fees and which was continued long after Hen. III. Reign as it appears by this Passage in Sir Henry Spelman's Glossary Tit. Scutagium Edwardus primus habuit 40 Soli de quolibet 〈◊〉 Anno Regni 13 Dom. 1285. pro expeditione contra VVallos And it was also granted by the Lords and Commons after the 18th of Edw. I. when you and the Dr. supposes the Commons to have then came to Parliament and if so I desire to know why a Militibus here mentioned by this Author must only signifie Tenants in capite by Knights Service and not the Knights of Shires since it is not here said a Militibus qui de Rege tenuerunt in capite And therefore it is a forced Interpretation of the Dr.'s and without any Authority to limit these words Militibus libere Tenentibus omnibus de Regno nostro which you omit with an c. as also the omnibus Hominibus Liberis Regni nostri only to the Arch-Bishops Bishops and other Prelates of England and to the Earls Barons Knights and Free Tenants or Tenants in Military or Knight's Service because they were only such as paid Scutage VVhereas you have already acknowledged that Magna Charta was granted to all the people of England who had all a benefit by it and who paid towards the aid there granted as well as the Tenants in capite But if Knights Fees alone were Taxed and that by the Tenants in capite only I desire to know by what Right all Tenants in Petit Serjeanty and by Burgoge oâ— Sâ—occage Tenure who made a greater Body of men in this Kingdom in those Times could pay this Scutage since they held not by Knights Service but by certain Rents or other Services and so not appearing in Person could have no Representatives in this or any other Parliament of those Times But if you will tell me they might pay according to the value that Knights Fees were then reckoned at viz. for every 20 l. a years Estate I desire to know how this could be called Scutage or how the Tenants in capite or other Lords from whom they held those Lands could give away their Money for them And in the next place I desire also to know how all the Cities and Burroughs in England could be charged with this Tax a great many of them is you your self grant holding of the King in capite or else of Bishops Abbots or other Mesâ—e Lords by Soccage or Bargage Tenure So that this Tax if granted only by the Tenants in capite by Knights Service could reach them and no other persons but if by this Word a Militibus may be understood Knights of Shires then the Tax was general as well upon Soccage Tenants as those by Knights Service But for the other Words you insist upon viz. the Liberi Tenentes which you translate Tenants by Military Service if that had been the meaning of these words then they had been altogether in vain since you have already told me that the â—â—lites were so called non a Militari Cingulo sed a Feodo and if it were no Name of Dignity then certainly the Word Milites would have served to comprehend all your Liberi Tenentes or Tenants in capite without any other addition But that these Words Laberi Tenentes do not here signifie Tenants by Military Service pray see Sir Henry Spelman's Glossary Tit. Liber Homo liber Tenens where he there gives us a more general Signification of thesewords thus Ad Nobilesolim spectabant isti 〈◊〉 à majoribus ortos omnino Liberis and then ends thus vide Ingenuus Legalis 〈◊〉 Francus Tenens Liberè alias Liber Tenent quo etiam sensu occurrit interdum Homo 〈◊〉 which upon every one of these Titles he makes to signifie all one â—â—d the same thing viz. an ordinary Freeholder And therefore it is a very forced Interpretation of yours to limit these Words Communitas Populi only to the Community or Body of the Earls Barons and Tenants in capite Tho I confess you are very kind in one main Point in únderstanding the Communitas Populi to mean the Community of the Lesser Tenants in capite that were no Barons and then do what you can these Words must here signifie Meer Commoners or Commons unless you can shew us a Third Sort of Men who tho neither Lords nor Commons yet had a place in Parliament So that these Gentlemen notwithstanding their Tenure were no more Noble than their Feudatory Tenants or Vavafors themselves my than the Knights of Shires are at this day And then granting as I doubt not but I shall be able to prove that the Cities and Boroughs had then also their Representatives there I pray tell me whether or no there were not Commons in Parliament before 49 Hen. III. or not which is contrary to your Dr.'s Assertion in divers places of his Answerâ— to Mr. P. And that the Word Populus must here signifie the Commons and not the whole Body of the Laity appears plainly by this place you have quoted since it is restrained by your self to mean not the whole Community of the Kingdom but only the Community of Lesser Tenants in capite who were not Lords But that Matt. Paris doth also in another place take the Word Populus for the Commoners and not for the whole Body of the Laity pray again remember what he says in Anno 1225. where relating the manner how Magna Charta came to be confirmed in 9th Hen. III. he tells us Rex Henricus ad Natale tenuit Curiam suam apud VVestm
Praesentibus Clero Populo cum Magnatibus Regionis which pray let us put into English and see if it will not prove what I say viz. the Clergy and People being present with the Great Men of the Kingdom Now if the Word Magnates as you affirm did then comprehend all the Barons and Tenants in capite to what purpose is the Word People put here as a distinct Member of this Parliament But to shew you father that this Word Populus is not always to be understood for the whole Body of the Laicks but Lords and Knights of Shires 〈◊〉 shall shew you out of Walsingham Anno 1297. 24th Edw. I. where he mentions a Parliament held at St. Edmundsbury In quo a Civitatibus Burgis concessa est Regâ— Octava a Populo vero reliquo duodecima pars Bonorum Where by Populus 〈◊〉 not only meant the Peers but Knights of Shires or Grands des 〈◊〉 also M. I am not prepared at present to answer all the Queries and Difficulties that you can make or raise against the Dr.'s Arguments yet I think I am able to give you a very satisfactory answer why all Tenants in Soccage should be bounâ— by the Acts of those of whom they held their Estates For since as I have a ready proved all the Land in England except what belong to Religious Houses was granted out by King William the Conqueror to be held in capite by Knights Service and was again granted out by these Head-Tenants to their Feudatory oâ— Mesne Tenants by the like Services there being very few Lands granted in Free Soccage at the first And tho it is true that in process of time maâ— of those Estates and Lands became Free Tenements or were holde in Soccage that is were Freeholds yet the Lords still retaiâ— the Homage which in the Times we speak of was no idle insignificant Word and by that a Dominion over the Estate whereby upon Disobedience Treachery or Injury done to the Lords the Lands were forfeited to them and theâ— neither the Lands nor the Tenants to them which were termed Freeholderâ— were subject to any base Services or servile Works yet the Lords had still great power over these Tenants by reason of their doing Homage to them 〈◊〉 â—o nominè their Lands were many ways liable to forfeiture and therefore it waâ— but reason that the Chief Lords being Tenants in capite should conclude that Tenants in Soccage also and both make Laws and give Taxes for them without their being at all privy to it But admitting I grant that before 49th 〈◊〉 there were in some sense Commons in Parliament tho not as Knights Citizen and Burgesses chosen by the Common People as their Representatives Yet 〈◊〉 it not destroy mine or the Dr.'s Assertion who in the Introduction before the Answer to Mr. P. only affirms That before the 49th aforesaid the Body of the Commons of England or Ordinary Freemen as now understood or as we now call them collectively taken c. had any share or Votes in making Laws unless as they were 〈◊〉 presented by the Tenants in capite F. Be it so But I am sure in many places of the Dr's Booâ— he absolutely denies that there were any Commons in Parliament till the Time he Assigns But as for what you alledge in answer to my Queries how Tenants in Soccage could have Laws made for them and Taxes laid upon them 〈◊〉 â—heir Lords or Tenants in capite your answer is wholly grounded upon mistakes For in the first place King VVilliam did not grant all the Lands in England to be held of him by Knight's Service since as I shall prove hereafter there were many subordinate Tenants to Bishops Abbots and other Great Lords who never forfeited their Estates at all nor were disseiz'd of them by your Conqueror â—ad who had also great numbers of considerable Freeholders under them as in 〈◊〉 at the greatest part of the Land was Gavelkind which was Soccage Teâ—re In the next place neither were all the Lands he bestowed upon his Followers granted to be held by Knight's Service since you your seâ—f own that a great deal â—land was given by him to his Inferior Servants to be held by Petit Serjeanty and besides this a great deal of other Lands was regranted by that King himself 〈◊〉 some of those old Proprietors who had been dispossessed to be held in Soccage is appears from Fleta who speaking of these sort of men says expresly In 〈◊〉 maneriis seilicet Regis erant liberi Hemines Labâ—ri Tenentes quorum quidaâ—i 〈◊〉 per Potentiores a Tenementis fuerant ejecti eadem post modum in Villenagium tenenâ—â— resempserunt quia hujusmodi Tenentes cultores Regis esse dâ—gnoscuntur provisa 〈◊〉 quiet ne sectas facerent ad Comitatum Vel hundredum c quorâ—m â—â—gregationem tunc Soccam appellarent hinc est quod Sokemanni bodie dicunâ—â— c. Where you may see that these Socmen or Soccagers were then created by a â—ew Tenure from this King Nor did all the Tenants in capite grant their Lands â—o others to be held by Knights Service since they as well as the King did at first 〈◊〉 also in process of time grant Lands to the Old English Proprietors to be held of â—â—em in Soccage nor was Homage the proper or only Badge of Soccage Tenure but â—ealty unless the Land had been held by Knights Service at first as you may see in Littleton's 2d Book Sect. 118. Nor did this Soccage Tenure give the Lord any more right over his Tenants Estate to tax him de alto bâ—sso at his Will by â—eason of the subjection he was in to the Lord in respect of Forfeiture since â—hen the King should have had for the same reason the same Rights over all his 〈◊〉 in capite to tax them likewise at his pleasure and this Right of Forfeiâ—â—â— in case of Felony or for want of Heirs continued to the Lords as well of Soccage Tenants as others long after the time you assign for the coming of the Commons to Parliament even to our own Times and yet for all that those Lords could not give taxes for such Tenants in Soccage at their pleasure But that we may proceed pray consider also the form of the Peace agreed upon between the King the Prince his Son and the whole Body of the Kingdom assembled in Parliament to compose all Differences between the King and the â—arons The Title of which in the Record is thus Haec est forma 〈◊〉 a Domino Rege Domino Edwardo filio suo Praelatis Proceriâ—â—â—â—â—â—â—ibus cum Communitate totâ Regni Angliae Communitèr Conâ—â—â—ditèr approbata Which Articles were signed by the Bishop of Lincoln the Bishop of Ely Earl of Norf. Earl of Oxon Humphry Bohun William de Monte Canisio Majore London in Parliamento London Mense Iunii Anno Domini 1264. Haec autem â—rimatio facta est London de Consensu
which all the Lands in England were liable to as well after as before your Conquest Nor will the 58 th Law make more for you for tho it â—â—ly says that all Earls Barons Knights and their Servitors or Esquires and all Freemen of the Kingdom shall always be fitted with Horses and Arms as they â—â—ought to be and which they ought to do according to and by reason of their â—ees and Tenures Now it is plain that this Law cannot extend to the Less 〈◊〉 Capite only since they according to your own sense are comprehended â—â—eder the Word Milites and their Servientes which seems to mean their Feudataâ—y Tenants are as much tyed by this Law to find Horses and Arms as the Tâ—â—ants in capite themselves So that whereas the Law says expresly Uniâ—â—rsi Liberi â—â—mines totius Regni it should have been to make good your sense Universâ— Libeâ—â— Homines qui de Rege Tenant in capite And as for the other Freemen who were â—f lesser Estates than to find Horses they were to be ready with such Arms as beâ—â—ed their Condition as we see it explained by the Assize of Arms of Henry II. which I have now cited so that this Law of King VVilliam is not to be taken in 〈◊〉 sense you put upon it That all the true Freemen of the Kingdom were obliged to be ready with Horses and Arms as if none were Freemen that did not but referring the Words Horses and Arms to those who were to â—ind both and the Word Arms to those Freemen who were only obliged to keep Arms â—it for Footâ—en which sense the words will very well bear tho expressed generally and concisely according to the Mode of those times which abhor'd more Words than â—eeds And if these Laws will not prove what you bring them for much less till the last you have cited For if the Words Omneâ— Liberâ— Homines totius Monarâ—â— in the First Law who were to take an Oath of Fidelity to the King must â—â—tend to all the Freemen of England as certainly it did all Freemen being aâ—â—e obliged to be sworn in the Court Leer and County Court so must this too 〈◊〉 Title being that Omnes subditi all the Subjects should endeavour to mainâ—â—in the King's Rights with all their Power And tho I grant that Subditi here are the same with Liberi Homines in the first Law yet since by that Law all Freemen were to take the Oath of Fidelity to the King these must be also the very same Freemen who were to be sworn Brothers to defend the Kingdom according to their Power and Estates So that all that you have said to prove your Tenants by Knights Service in capite to be the only Freemen that served oâ— Juries c. being built upon a false Interpretation of these Laws of King VVilliam are but the meer Fancies and Imaginations of the Author from whom you borrowed them But taking the Words Liberi Homines in the strictest sense and as they are is the Magna Charta of King Iohn and H. III. Chap. 14. where it is ordained that Liber Homo non amercietur pro parvo delicto nisi secundum modum illius delicti salvâ—â—h contenemento suo mercatar eodem modo salva marchandiza villanus salvâ— VVâ—nagio Upon which Words Sir Edward Coke in his 2 d. Inst. observes that 〈◊〉 Homo is here meant such a one as enjoys a Franc Tenement that is any sort of Freeâ—â— hold But pray go on to prove by some plainer Authorities that the Arch-Bishopâ— Bishops and Abbots c. together with the Earls Barons and other Tenents in capita were the only Council of the Kingdom for the assessing of Taxes and making Laws in the Times immediately succeeding the Reign of King William the First M. I shall perform your Desires and will begin with the Great Council 〈◊〉 Parliament held at Clarendon of which Matt. Paris tells us 〈◊〉 Dom. 1164. 10 th of King H. II. In presentia Regis Henriâ—s 〈…〉 rendon 8 Calend. Febr. c. de mandato ipsius Regis presentibus 〈◊〉 Archiepiscopis Episcopis Abbatibus Prioribus Comitibus 〈◊〉 Proceribus Regni facta est Recognitio and which Quadrilogus and GErvas◠〈◊〉 Canterbury comprise under the General Terms of Brasules Prâ—ceres Regni the Bishops and Great Men of the Kingâ—dom What can be more clear by this Enumeration of the Constitâ—â—ent Parts of this full Parliament as Mr. Sâ—lden and other Authoâ— agree it to be than that the Commons were then none of theâ— and that the Clerus and Populus in Hoveden were only the 〈◊〉 and Lay Nobility So likewise when these Constitutions were again renewed by this King at â—â—thampton the same Author tells us tho by a Mistake it is writtâ—â— Nottingham That Rex Pater ibi celebravit Magnum Consilium de 〈◊〉 t is Regni coram Rege Filio Suo coram Archiepiscopis Episcopâ—â— Comitibus Baronibus Regni sui which Council is more partiâ—â—larly recited by Benedictus Abbas in his Manuscript History 〈◊〉 in the Cottonian Library Anno. 1176. which was the 25 th H. 〈◊〉 Circa Festum Conversionis Sancti Pauli venit Dominus Rex usque â—â—â—thampton Magnum ibi celebravit Concilium de Statutis Regni sui 〈◊〉 Episcopis Comitibus Baronibus Terrae suae coram eis per 〈◊〉 Regis Henrici Filii sui per Concilium Comitum Baronum Nilitâ—â— Hominum suorum hanc subscriptam assisam â—ecit c. And Ralph de Diceto Dean of St. Pauls A. D. 1210. a diligent Searcher into the Histories and Transactions of his own and former times doth yet more fully declare the meaning of Abbot Benedict in the Account he gives of this Great Council thus Rex juxta Consilium Filii sui Regis coram Episcopis Comitibus Baronibus Militibus aliis Hominibus suis in hoc consentientibus c. Hoc autem factum est apud Northamptonam â—ino Kal Febr. From all which Authorities we may collect that this Council at Northampton as well as that at Clarendon was a Great or Common Council of the whole Kingdom to which were summoned of the Laity only the Earls and Barons of his viz. the King's Land to which is also added for the better explaining who were understood under these Titles of Baronum Militum Hominum suorum that is such Tenants in capite as were Knights and such as were his Men or Tenants that is Military Tenants as were not Knighted and who held Lands either of the King or his Son to whom the King might assign divers of these Barons and Tenants in capite to atturn Tenants to him and to maintain his Court and Kingship And the King 's Comites and Barones terrae suae were the Earls and Barons of his Kingdom that held immediately of him or were his immediate Tenants in capite and that Homo suus homines sui doth for
the most part signifie the King's or any other Lord 's immediate Tenants by Knights Service for you may consult Spelman's Glossary and Du Fresue's Lexicon under these Titles But farther to confirm who were then the Constituent Members of our Great Councils pray see the Title to the Assize of Forests under King Richard the I. which Hoveden recites in these Words Haec est Assiza Dom. Regis haec sunt praecepta de Forestis suis in Angliae facta per assensum Consilium Archiepiscoporum Episcoporum Abbatum Comitum Baronum Militum totius Regni Where by Militum is to be understood not only those Tenants in capite that were Knighted but also all other Tenants in capite and if the Word ever signifies any other persons they were not ordinary Freeholders but Liberè Tenentes in servitio Militari Freeholders in Military Service as you may find in the Dr.'s Glossary Tit. Probi Homines Milites c. But pray remember also what Sir H. Spelman tells us in his Glossary Tit. Miles that these Milites when put alone were properly the Liberi Tenentes or Tenants in capite Qui non à Militari Cingulo sed a Frodo nomen sumpserunt So that I think no ingenious man but will confess that all these Councils were General Councils or Parliaments of the whole Kingdom consisting of no other persons than Tenants in capite F. To return an Answer to all your Authorities together I must now repeat what I often said that there are no firm Arguments to be drawn from the doubtful Words and general Expressions of our Ancient Historians and I doubt not but to shew you that all the whole strength of your Reasons consists in this alone But since I have already spoken so much of the various signification of the Word Barones Regis Regni I shall omit that and now proceed to the rest of the Words which you think make so plain for you and shall only observe at present that these Words Barones and Milites are always stretch'd or contracted according as the Gentlemen of your Opinion find it best to suit with their Hypothesis As for Example If the Word Barones is put alone then it must signifie none but Great Barons and Tenants in capite if it be joined with Milites then by Barones must be only meant the Great Barons or Peers and by Milites those Tenants in capite who were not Lords If any other words follow Milites then this Word must signifie only such Tenants in capite as were Knighted So likewise you deal with all other Words tho of never so comprehensive a Signification But why may not I with as much Reason affirm That by Barones mentioned in these Authorities is to be understood the Barones properly so called and by the Milites the Knights of Shires whether they were Tenants in capite or Feudatories to others For Radulphus de Diceto in Anno 1040. in the Laws of Malcolm the Second King of Scots mentions Milites Vavasores qui tenent de Baronibus tetras suas and that not only Tenants in capite but all others of whomsoever they held who were able to maintain themselves like Knights might be then forced to receive Knighthood appears by two Writs of 24 th and 26 th H. III. as they are found in the Close Rolls under this Title Forma de Molitibus faciendis and I desire you would read the Writ it self Rex Vicecomiti Northampton Salutem Praecipimus tibi quod per totam Ballivam tuam in Singulis bonis Villis similiter in pleno Comitatu tuo clamari facias quod omnes illi de Comitatu tuo qui tenent Feodum Militis integrum vel etiam minus quam Feodum integrum dum tamen de Tenemento Suo tam Militari quam Socagio pâ—ssint sustentari Milites non sunt Sicut Tenementa sua deligunt citra festum omnium Sanctorum Anno Regni Nostri 25. Arma capiant se Milites fieri faciant Et si qui fuerint tales qui citra Terminum illum se Milites fieri non fecerint Omnia Nomina eorum Statim à Termino illo quantitatem Valorem tenementorum suorum nobit scire facias Teste Rege apud Lewes 25 die Iulii Similiter Scribitur omnibus Vicecomitibus And as for the Words Homines Sui which you will have only to mean the King's Tenants in capite those Words have so equivocal a Signification that there is no Argument to be drawn from them for they may as well signifie all the King's Subjects sworn to him by Fealty and Allegiance as Tenants by Homage or Knights Service only as Sir H. Spelman in his Glossary observes upon the Word Homo dicitur de quovis Praediorum Tenente sive Socmanno sive Militari And for this he cites the Book of Ramsey and if Suus be added to Homo it doth much alter the Case as appears by the words following in the same place Dicitur Praeterca de Quovis Ministro Subdito saepe occurrit hoc modo in Antiquis Privilegiis non Solum Vassalos Tenentes sed Famulos Subditos quoslibet Significans and for this he gives us several Authorities So that you see these Words do not only signifie Tenants in capite but also any other Subjects and so might take in the Knights of Shires with the Citizens and Burgesses likewise at least the Representatives of such Cities and Burroughs as held of the King in capite by your own Sense of these Words But I shall however say something of the rest of the Words you insist upon out of Abbot Benedict viz. Barones terrae suae which means no more than Regni sui before mentioned and then it will signifie no more than that all the Barons of his Kingdom were summon'd to this Assembly which Word Tenents in capite I can give Mr. Selden's Authority for who in his First Edition 2 d Part hath his remarkable Passage speaking of the several kinds of Barons he says That besides the Barones Regis there were Barons of Subjects holding not of the King but by Mesnalty who made a third Rank of such as were Lords of Mannors c. Out of this may be understood why and in what sense Baronagium Angliae Rex Baronagium suum sine Assensu Baronagii sui so often occur in our old Stories taken as well for the King and the whole State sometimes as for the Greater Nobility But if your Dr. had been pleased to have compared the Authors he quotes with others nay with the Title to the very Constitutions of Clarendâ—n themselves as he hath given them as in his Appendix to his History out of Quadrilogus this Objection would have been needless for if you consult Gervase of Canterbury he stiles the Parties to this Council Praesules and Proceres Anglicani Regni And as for Matt. Paris pray observe that after the
held wholly by Socage Tenure whereas it appears plainly by Littleton that Tenants in Petyt Serjeanty were subject to Wardship Marriage and Relief So that whoever will but consider that near half the Lands in England were held by Bishops Abbots Priors c. and of whom not a third part held by Knights Service of the Crown and will then likewise consider what a vast number of Tenants those Abbots Priors Deans and Chapters who were not Tenants in Capite at all must have had and who either held Estates in Fee or else for Life under them in Socage as well as by Knights Service as also all the other sorts of Tenures I have already mentioned which either held of the King as of some Honor or Castle or else of other Mesne Lords by other Tenures than Knights Service must certainly conclude that not above one half of the Lands of the whole Kingdom was held either immediately of the King or else of other Mesne Lords by that Tenure So that if all these Persons which were far the greater Number of the Free-holders in England should have been thus excluded from having any thing to do in our Great Councils I doubt not but we should have found sufficient Clamour in our Histories against so unjust a Constitution and when the whole Body of the Kingdom was in Arms against King Iohn at Running-Mead they would likewise have inserted a Clause for themselves if they had not had their Suffrages there before either by themselves in their own Persons or by their lawful Representatives And therefore upon the whole matter I durst leave it to the Consideration of any unprejudiced Man whether it is not much more probable that the Constitution of Knights of Shires Citizens and Burgesses appearing in Parliament should be much more antient then the time you assign than that so small a Body of Men as the Bishops Lords and Tenants in Capite should represent all the Freeholders and People of England who never held of them by Knights Service at all Nor have you yet answered the Quotation I have brought out of Bracton in my last Discourse to the contrary And whoever will but consult that Author in his Chapter of Tenures will find that the Tenants in Capite were so far from having a Power of charging all the Mesne Tenants at their Pleasure that in his Chapter de Tenuris it appears that a Mesne Tenant in Capite having purchased an Estate for a valuable Consideration was lyable to no other Services and Conditions than what his Tenure express'd which once performed the Lord had no more to say to him and if so be he laid any further Burthens upon him he might have had a Writ of acquital out of the King's Court against him directed to the Sheriffs several Forms of which you may see in Glanville and in the old Register M. We are not to rest upon meer Probabilities for some things that now appear to us unreasonable at this instant of time might then be very just for if the Feudatary Tenants of the Bishops Barons and other Tenants in Capite were well enough contented with the Constitution of the Kingdom as it then was and that it plainly appears by matter of fact that there was but one Common Council for the whole Kingdom and that of the Bishops Abbots Great Lords and less Tenants in Capite only it is in vain to argue of any unreasonableness in or Inconveniencies that might arise from such a Constitution though perhaps a great part of the Kingdom did not hold in Capite nor yet by Knights Service and therefore though the Feudatary Tenants of the Tenants in Capite were upon the performance of their Services acquitted of all other Charges yet this was still to be understood only of such ordinary Services as those Tenants were to perform by virtue of their Tenures such as was Scutage Service or the attending upon their Lords when they went out to War along with the King but did not extend to such Scutages as were granted in Parliament or as a Tax upon Land by the common consent of the Nation for then the Tenants in Capite were not only the Grantors but the Collectors too of such Scutage Tax from their Military Tenants and the Writs to the Sheriffs were different from those for Scutage Service and for proof of this I desire you would peruâ—e that Writ which the Dr. Quotes of the 19th of Hen. III. which is still to be seen in the close Roll of that Year Rex Vice Comiti Sussex salutem Scias quod Archiepiscopi Episcopi Abbates Priâ—reâ— Comites Barones omnes alii de Regno nostro Angliae qui de nobis tenent in Capite spontanea voluâ—â—â—te suâ— sine Conâ—uetudine concesserunt nobis Efficax Auxilium ad magna Negotia nostra Expedienda unde provisum 〈◊〉 de Consilâ—o illorum quod habeamus de feodis Militum Wardis quae de nobis Tenent in Gapite duâ—s Marcas ad predictum Auxilium faciendum unde proviâ—erint reddere nobis unam medietatem ante Festum sancti Micâ—aelis Anno Regni 19. aliam Medictatem ad Pasche Anno Regni â—osirâ— 20. Ideo tibi precipimus quod ad Mandatum venerabilis Patris R. Cicestren Episcopi Cancellarii nostri sine dilatione Distringas omnes Milites liberos Tenentes qui de eo Tenent per Servitium Militare in Balliva tua ad redlendum ei de singulis feotis militum Wardis duas Marcas ad predictum Auxilium nobis per manum suam Reddendum in Terminis predictis Sic scribitur pro aliis Episcopis Abbatibus Prioribus Magnatibus Now I desire you to tell me whether any thing can be more plain than that this Tax was granted by a Common Council of the Kingdom according to that Clause of King Iohn's Charter I have now cited Wherein it is first especially provided that no Aid or Scutage shall be imposed upon the Kingdom unless by the Common Council thereof and yet you see by this Writ that the Archbishops c. with the Barons there mentioned together with the other Tenants in Capite alone granted an Aid or Scutage Tax of two Marks for every Knights Fee which they held of the King and that by virtue thereof not only those Knights Fees they held in their hands but also all those Subseudatary Tenants called here Freeholders who held of them by Knights Service were likewise charged for every Knights Fee so held the like Summ of two Marks Now I think nothing can be more plain from this Record than that this was a Common Council of the whole Kingdom and yet consisted of Tenants in Capite only and therefore I desire you to shew me some better Proofs than you yet have done that these Tenants in Capite ever made a distinct Council different from the Common Council of the whole Kingdom F. I grant this seems at first sight to be a good Authority for
that they should have timely notice that they might give their advice in it as also that they might either come or stay away according to the greatness or urgency of the occasion and might also give their Under-Tenants notice to provide themselves with Horses and Arms and all things necessary in case a War should be agreed on which I think are sufficient reasons for thus expressing the Causes of their Meeting in the Writs of Summons M. Admit this were so which I shall yet take further time to consider of pray tell me in the next place if all your inferiour Barons Vavasors or Lords of Manours c. supposing them either to have appeared in Person or else as chosen for Knights of Shires or else as Citizens and Burgesses who were the Members of the great Council of the Nation I pray tell me why there should not have been the same care taken that they might be also Summoned as well as the Tenants in Capite certainly they came not to them by instinct nor is it scarce probable that they would leave their Country busineâ—s to Travel from one remote part of England to another to these great Councils which seldom continued above three or four days if they had had a Right so to do F. I shall answer you in few words because it was not at all necessary to express that Clause you mention for them all Since it was sufficient therein to follow the old Course of Summoning the Common Council of the Kingdom for doing which it had always been the Custom to give sufficient Notice by Writs of Summons of their Meetings whereas in this Council of Tenants in Capite Since there was by this Charter some alteration in the manner of their Summoning so there was also for expressing the cause of their Meeting For whereas before that as the Dr. himself allows all the Lesser Tenants in Capite had particular Letters or Writs of Summons expressing the Cause of their Meeting they were for the future to be Summoned by general Writs directed to the Sheriffs and therefore it was but reason that there should be a particular Clause reserved for their general Summoning which there was no need of in those Writs that were Issued for the summoning therest of the People or Commons to the great Council or Parliament as I doubt not but it would appear in case we had those Writs to produce in which likewise there was anciently often exprest the particular cause of their Meeting as there was for instance in those famous Writs to the Lords and Commons of the 49. Hen. III. which the Dr. hath given us in his answer to Mr. P. M. But I have still a greater objection behind than either of the former You cannot deny but that by the first clause of King Iohn's Charter which I have made use of all Aids and Escuages were to be imposed by the Common Council of the Kingdom and Littleton himself tells us in the second Book of his Tenures That Escuage is always to be Assâ—ssed by Parliament upon those that failed to do their Services after the Expedition was ended Now if this had not been a Right Inherent to the Great or Common Council of the Kingdom but that the Tenants in Capite alone assessed it in King Iohn's time how came they to lose that Priviledge and the great Council of the Kingdom or Parliament to get it if the former had not been the only great Council at the first F. I hope to give you as satisfactory an answer to this as I have to the rest of your Demands This alteration might have fallen out two ways either according to Camdens old Manuscript Author cited in his Introdâ—ction to his Britania the Summ of which is that when King Henry III. after his great Wars with Sim. Momford and the Barons had Ruined many of them he out of so great a Multitude which was before Seditious and Turbulent called the best and chiefest of them only by Writ to Parliament who after that time became Barons by Writ and not by Tenure as they were before And as for the lâ—sser sort of them called â—â—ones Minores they might be wholly resolv'd into the Body of the Commons or ordinary sort of â—ree-holders and the King being fearful of any farther encrease of Power in these Barons and Tenants in Capite might no more desire their Company at the usual Feasts of the Year whither before they used to come ex more and so their Power fell of course to the Council or Parliament of which before they only made a part Or else it might happen from the negligence of the Tenants in Capite themselves who growing weary of their Attendance might neglect to come to those Councils because of the great trouble and charge of those Journeys and the King being as willing to dispense with their Presence this Court was lost by Non-usage and so the judicial part of it remained in the House of Peers and that of Assessing Escuage and advising and giving Aids in matters of War fell wholly to the great Council of the Kingdom of which these Tenants in Capite by their being capable of being Elected Knights of Shires soon became the Principal Members But admit I should take this Council for Assessing Escuages for the Comâ—on Council of the Kingdom pray give me leave to ask you one or two Questions likewise in my turn Pray tell me therefore if this Council had been such as you would have it to what purpose is there a full Stop in all the old Coppies at the end of this Clause ad babendum Commune Concilium legâ—l de Scutagiis assidendis aliâ—er quam in tribus Casibus praelictis and why â—ould the next Clause begin with de Scutagiis assidendis submoneri faciâ—â—us 〈◊〉 if they had been both one and the same Councils Since it had been easier to put it all under one Clause If the matters therâ— Treated of had been the 〈◊〉 In the next place pray tell me if this were the great Council of the Kingdom or Parliament as it is now called why are there no other Rights or Priviledges reserved to this Council but this of Assesing Escuage Were not the Powers of granting other Taxes which could not be included under the word Escuages and also of giving their Assent to Laws things of as great say greater moment than this of Assessing Escuage M. I shall give you as short and satisfactory an answer as I can to those Queries In the first place I will not deny but that both the Clauses you mention might have been contracted into one supposing them to be read without any full stop between them as Sir H. Spellman in his Glossary supposes them to be But what is this to the purpose Must these therefore be two distinct Councils because the Charter it self words them a little more loosely than it needed to have done And as for your next Query there was no
been known who had a right to come to this Council if these words had not bin inserted so that this seems to me to make a plain distinction between these Liberos homines qui de nobis Tenent in Capite and the rest of the Freemen of the whole Kingdom But when Eadmerus and other ancient Historians mention the great or Common Council of the whole Kingdom afterwards called the Parliament then their expressions are more general and comprehensive for proof of which pray consult the Old English Saxon Annals continued down to the time of Henry I. wherein Anno. Dom. 1085. being the last Year of William I. there is a remakable passage which I shall here give you in English At Christmas the King viz. William I. was at Gloucester with his Nobles and there held his Curia or Court in Saxon his Hired Five days and immediately after it follows thus After this he held a great Council in Saxon Mycel Getheat where he had many great Discourses with the Nobles c. Now it seems plain to me that this Court here called his Hired could not be the great Council of the Kingdom for to what purpose should it meet again so quickly if it had the great Council of the whole Kingdom or why are they here called by different Titles the one his Hired or Court and the other the Mycel Gatheaâ— the great Council which is also called commune Concilium totius Regni in Sir Henry Spellmans Councils in this very Year And to shew you more plainly the difference between this great Council of the whole Kingdom and the lesser Council of the Kings Barons and Tenants in Capite Pray see Eadmerus who relating what was done in a great Council held at Easter immediately before the Invasion of Robert Duke of Normandy in the 2d Year of Henry I. says there met tota Angliae Nobilitas cum Populi numerositate and then Arch-bishop Anselm engaged for the King that he should Govern the Kingdom according to the just Laws thereof where you see that besides the Noble men and Gentlemen here called Regni Nobilitas there was also a great number of the Commons here termed in the Barbarous Latin of that Age Populi numerositas But when the King held his Curia of the great Lords and Tenants in Capite alone the expressions are more particular as may appear by many Charters of our first Norman Kings to several Abbeys of their own Foundation which are said to be made Consilio Assensu Baronum nostrorum tam presulum quam Laicorum as you will for example find it in the Charter of Hen. I. to the Abby of Abington as it is exemplifyed in the ancient Manuscript Register of that Abbey now in the Cottonian Library in which Book you will find more of the like Nature which plainly make out this difference between this less Council of the Kings Barons and Tenants in Capite and the great Council of the Kingdom And for further proof of this pay see the Instrument of King Iohn's resignation of his Crown to the Pope as you will find it at the end of Dr. B's compleat History which is recited to have been done Communi Concilio Baronum Noâ—troâ—um that is by the Common Council of the Kings Barons and Tenants in Capite who were all there present in Arms against the Landing of the French King then expected And yet this was never looked upon to have been done per Commune Concilium Ragni since this Resignation was declared void by the Bishops Lords and Commons in full Parliament in the 40th of Edward III. because done saâ—z lour Assent as it is in the Parliament Roll of that Year But when ever the whole great Council or Parliament was summoned to assemble then this lesser Council of the Tenants in Capite must needs meet also as being a principal part of it And then the expressions were more comprehensive as I have already noted and our ancient Historians do in my Opinion by their Expressions plainly signifie an Union of both these Councils to make up the Common-Council of the Kingdom as appears by the Letters which the Priory of Canterbury wrote to the Pope upon the Election of Ralph Bishop of Rochester in the 14th of Hen. 1. to the See of Cantebury as you will find them in Eadmerus Lib. 5. fol. 111. and which is there said to have been made adunato conventu totius Angliae that is in the united Assembly of all England viz. the Episcopi Abbates Principes Regni itgens Populi Multitudo So likewise Hovelen in his History fol. 273. Anu 1121 being the 18th of Hen. 1. relates the Kings Marriage with the Lady Adeliza Daughter to the Duke of Lovain to have been celebrated at Windsor adunato Concilio totius Regni i. e. in the united Council of the whole Kingdom M. I am not yet satisfied with your proofs and I doubt not but to shew you that this distinction of your Friends Mr. P. and Mr. A. his second between the Common Council of the Kingdom and the Council of the great Lords and Tenants in Capite will prove but a meer Chymra of those Gentlemen from whom you have borrowed it for there was indeed but one Common Council of the Kingdom in those times viz. that of the Bishops Earls Barons and other Tenants in Capite And therefore in answer to your first Authority from the Saxon Chronicle I shall shew you another of the same King's Reign which will shew the different expressions of this great Council by Hired and Mycel Getheat to have been the particular Fancy of that Monkish Writer and it is from Gervas Doâ—â—bornensis de Actis Pontisicum Cantuarens Ecclesiae where you may see in the Decem Scriptores this passage Anno. 4. Regis Wilhelmi I. Anno. Dom. 1070. Lanfrancus Cadomensis Ahlu electus fuit Archiâ—piscopus Cantuariensis a Senioribus ejusdem Ecclesiae cum Episcopit Principibus clero populo Angliae in Curia Regis in Assumptione Sanctae Mariae where you may see that this confirmation of the Arch-bishop was made in the great Council of the Kingdom which is here called collectively or altogether and not one part of it only Curia Regis As for the words which make up the constituent parts of this Council we have sufficiently debated them and therefore I need say nothing more concerning them But tho the Dr. has given us more Authorities to prove this yet I shall make use of but one more from Badmerus it is in the Reign of Henry I. thus in subsequenti Nativitate Dom. Christi Regnum Angliae ad Curiam Regis Lundoniae pro more convenit magna Solemnitate habita est c. This instance is full in all points here is the whole Kingdom that is the whole Baronage or University of England for Bracton tells us the whole Kingdom consisted of Earldoms and Baronies who met according to Custom at the Kings Court and hence
you by undoubted Testimonies but since you are now upon the proving part pray shew me that these words I now mentioned did ever signifie the Commons of England in the sense they are now taken before the times we insist on and I have the more reason to desire this from you because it is chiefly from the mistaken Application of these Words that the Gentlemen of your opinion have imposed their false notions upon the World F. I shall undertake what you desire and I hope if I cannot satisfie you the fault will not lie in my Authorities but you prejudices against them In the first place therefore let me mind you how far you and I agreed at our last Meeting when I granted you that these words now in dispute were very equivocal and were often taken in different senses as sometimes you say true for the whole Representative Body of the Kingdom sometimes for the Community of the Barons and sometimes for the Community of the Bishops and Clergy but never as I know of for the Community of the Bishops Lords and Tenants in Capite much less for the Body of Tenants in Capite alone nor were you then able to prove to me that these words must necessarily be understood in your sense for the Community of the Tenants in Capite And tho you should prove them sometime to be taken in that sense yet would it rather make against then for your Opinion since they must then signifie a different Body of Men from your great Lords and consequently as meer Commoners as your Knights of Shires at this day which is against your first general assertion that by these words are always understood the Community of the Baronage only But to come to my proofs which I shall divide in two parts first I will prove that these words Communitas le Commune and Communalty when coming immediately after Comites Barones or Counts and Barons or Proceres in our old Statutes and Records do always signifie the Commons in the same sense in which they are now taken And for proof of this I will begin with the Reign of Hen. III when these words came first to be generally in use and so descend to his Successors as low as Rich. II. and if I can shew you that these words so put always signifie the Commons as well before as after that time I think you have reason to be satisfied that these was never once upon a time such a strange alteration in the constituent parts of our great Councils as you supposed yet none of our ancient Historians or Statutes should ever take any notice of it till these modern Antiquaries took upon them to disperse these Clouds To begin first with the words le Commune pray remember the Patent Roll of the 48th of Henry III. which I mentioned at our last Meeting viz. the â—orâ— of the Peaâ—e between this King the Prince his Son and the whole Body of the Kingdom Assembled in Parliament the Title of which is thus Haec est Forma pacis à Dom. Râ—ge Dom. Edw. Filio suo Praelatis Proceribus omnibus cum Communitate â—ota Râ—gni Angliae communiter concorditer approbata Now pray what can these words Communitate â—ota here signifie but another Body of Men distinct from the Earls and Barons or else it would be a gross Tautology And pray compare this Form of the Peace now mentioned with the Writs of Summons of the 49th of this King when your Dr. grants the Commons were Summoned to Parliament after the same manner as they are now and see if there be any change in the Terms and for proof of this we need go no further then the very Writ of Expences for the Wages of the Knights of Shires which the Dr. himself has given us at large in his answer to Mr. â— it is the 49th of Hen. III. to the Sheriff of Yorkshire wherein after other recitals it follows thus Cumque communitates Comitatuum dictorum variâ—s hoc Annâ— â—â—cerinâ— prastationes ad defensi nâ—m Regni nostri c. He therefore commands the said Sheriff quod danbus militibus qui pro Communitate dicti Comitaâ—â—s praefaâ—o Parliamento interfuerunt c. should be paid their reasonable Expenses De Communitate Comitatus praedicti For going to and staying at and returning from the said Parliament c. from whence it appears that the words Communitas and Communitates in this Writ cannot signifie the Community of Tenants in Capite alone but the Commons of the Coâ—nty in general unless you can prove to me that none but Tenants in Capite had performed these varias praesâ—aâ—iones in the Writ and that none but they then contributed to these Expences of the Knights of Shires otherwise these words must plainly signifie the Commons in general as they did in the like Writ of the 28th of King Edward I. which I shall give you by and by but I shall first shew you a few other Records of this Kings Reign concerning the word la Câ—mmunâ— which Mr. P. has given us they are in the Patent Roll of the 51st of this King wherein He by the Council and Assent of the King of the Romans des Counâ—s des Barons la Commune de la Terre Pardons the Earl of Gloucester and all his Company So likewise in the same Roll the King by the Council and Assent of the said Counts Barons de la Commune de la Terre Pardons the City of London all manner of Rancour and ill Will Now pray tell me a reason why should not the word la Commune in these Acts of Pardon signifie the same thing as the word Communitas in the form of the Peace and in the Writ of Expences of the 49th now cited Since they come immediately after the Counts Barons and so must needs signifie a Body of men distinct from them for there is the same reason why the words la Commune de la Terre should here signifie the Commâ—ns of the Land as that the word Communitates Comitatus should signifie the Community or Commons of the whole County M. Will you give me leave to answer this Question presently because I confess it is very material before you proceed farther There may in my opinion very good reasons be given 1. Why the words Communitas la Commune may signifie the Community of the Tenants in Capite in the Form of the peace and Acts of Pardon and yet signifie the Commons of the County in general in the Writ for Expences you have now mentioned As first because the subject matter is different in the Form of the Peace and Acts of Pardon from that in the Writs of Expences the one being the Communitas Regni and the other Communitas Comitatus only called also in the Plural Number Communitates Comitatuum and then I grant when thus used it always signifies the Commons in general and there may
Indeed if the words had been Milites libere Tâ—nâ—ntes qui de Rege tenuerunt in Capite you had said somewhat but otherwise it is all meer supposition without any ground But pray go on to the last woâ—ds in this Charter omnes de Regno nostro what can they mean â—ut that all the Freemen of the Kingdom gave this Fifteenth by their Lawful Representative M. If you do not like our sense of these words Milites and Libere Terentes I cannot help it nor shall I dispute them longer with you but as for this last Clause in the Charter omnes de Regno it only means all these who were Tenants in Capite in general in the same sense as when our ancient Historians mention Regnum Sâ—cerdotium by Regnum is to be understood both the Temporal and Spiritual Barons great and small the Kings Justices or any other that exercited any share or Ministerial part of the Government as perhaps all those diâ— one way or other by coming to our great Councils or Parliaments c. all which is evident from the words of the Quadri partiâ—e History concerning Thomâ—s Becket thus Rex apud Clarendun Regnum convo aâ— universum Quò com venisâ— ut Prasules Proceres c. i. e. the whole Baronage called together by the Kings Writ or a full meeting of the Spiritual and Temporal Barons both great and small I pray also remember that passage you your self made use of but now out of Mat. Paris whereby you would prove that the Common Council of the whole Kingdom was distinct from that of the Tenants in Capite because that after the Curia held at Christmass the King immediately issued out his Writs commanding omnibus ad Regnum spectantibus to appear at London and yet you see there are no more mentioned to be Summoned than the Archbishops Bishops Abbots Priors Earls and Barons So that we may hence learn the true meaning of these words omnes de Regno at the end of this Charter for these omnes de Regno were the same with the omnes ad Regnum spectantes in Mat. Paris the Regnum or Government the Communitas Regni the totalis Regni universitas the insluita nobilium multitudo and also gives us the meaning of those words omnes alii de Regno in the close Roll of the 19 th Henry the Third to the Sheriff of Somersershie Scias quod Comites Barones omnes alii de toto Regno nostro c. Concesserunt c. Which are further explained by a Writ in the same Roll about the same business directed to the Sheriff of Sussex which you have likewise cited beginning thus Sciatis quod Arohiepiscopi Episcopi Abbates Priores Comites Barones omnes alii de Regno nostro Angliae qui de nobis tenent in Capire nobis concesserunt c. Here the omnes alii de Regno were the omnes qui de nobis tâ—nent in Capite which were then all the Regnum or Communitas Regni So likewise it may be farther proved from a Record of the 48 th of Henry the Third Rex omnibus c. cum venerabiles Patres G. E. Eborum Archiepiscopus c. alii Praelati Magnates Milites libere Tenentes omnes alii de Regno nobis nuper in Articulo necessitatiâ— servitium fecerunt sulisidium c. And I may also put you in mind of the Writ I cited but now directed Archiepiscopis Episcopis c. Comitibus Baronibus Militibus omnibus aliis de Comiâ—aru Kanciae c. for the Levving of forty Shillings upon every Knights hee in that Country Now this Writ could not be directed to all the Men in Kent but to all such as paid Scutage for not a fortieth part of them were Tenants in Capite or Military Service So that these omnes alii de Regno and Omnes alii Comitatus were the same one with the other and otherwise it could not be for by Omnes de Regno or Omnes alii de Regno the Inhabitants in general could not be understood for they never were Summoned no not the Hundredth part of them to meet in Great Councils for 't was impossible they should and perhaps not above a fourth part of the Kingdom paid to this Fifteenth if we consider how many Servants Villainâ— Bondmen and many such People there were than in the Nation that paid nothing F. You have taken a great deal of pains to perplex and darken words in themselves very clear and perspicuous for methinks it is a strange piece of confidence in your Doctor when the Charter says expresily That Omnes dâ— Regno all the Freemen of the Kingdom gave this 15th to restrain this Act only to the Tenants in Capite who were but a few in comparison to the whole Kingdom this is indeed to make words signifie any thing he fancies But to answer your Authorities which are founded all upon false suppositions without any proof As to your Authority from the Quadrilogus History of Thomas Bâ—ecket it is true that the Praesules and Prâ—ceres are there called Regnum the Kingdom but I have already proved at our last Meeting that this word Proceres was of so comprehensive signification that it took in all the Principal Men of the Kingdom as well those that were Lords as those that were not so that the chief Citizens and Magistrates of our Cities and great Towns are often stiled Proceres Magnates Civitatum in our ancient Historians and Records and certainly the great Free-holders or Knights of Shires did much more justly deserve that Title As for the other passage out of Mat. Paris where the Bishops Abbots Earls and Barons are called omnes ad Regnum spectantes this is but a general way of expression in this Author and proves nothing For either the word Barones takes in all the smaller Tenants in Capite or it does not if the latter then this Author does not exactly recite all the Orders of Men whom your self must acknowledge to have appeared there since the great Barons alone could never make this infinita Nobilium multitudo mentioned in this Author if the former then it is plain that he thereby comprehended more then those who were really Barons Since it is certain that the smaller Tenants in Capite were not so nor are so much as called so in King Iohn's Charter and then make the most of this word Barones it may in a large and common acceptation take in all the chief Free-holders or Lords of Mannors which as I have already proved were often called Barons in our ancient Historians and Laws of the first Norman Kings and Mr. Cambden tells us that under the word Baronagium omnes Regni ordines continarentur This I say supposing that by this infinita Nobilium multitudo is to be understood all the cheif Gentry or Free-holders of England called often Nobilitas Angliae as I have already made
and Burroughs from times beyond all Memory sent their Proxyes and Representatives to the Parliament in Scotland and that each Citizen and Burgess so sent had as good a Vote in their Parliament as the greatest Bishop or Earl of them all M. I desire no better proofs then what your self have now brought to make out that the Tenants in Capite are not only at this day but have been from the very beginning of Parliaments in that Nation For I shall appeal to those very Statutes and Records you have now cited which compared with divers subsequent Statutes of that Kingdom will make the matter plain enough that the Communitas and these probi homines mentioned in these Laws you have cited were the Community of the Tenants in Capite only In the first place therefore let me observe from that very Law of King Alexanders the Title of which you have but now quoted that these words per essenssum Communitatis cannot here signifie the Commons since they alone could neither advise nor give their consent to make Laws and therefore they must needs refer to the whole Community or Assembly of Estates consisting of Tenants in Capite only as I shall prove by a Parliament of King Rob. III. who began to Reign Anno. Dom 1400. in the 10th year of our Richard II the Title is thus Parliamentum Domini nostri Roberti III. Scotoâ—um Regis c. vocatis summonitis more solito Episcopis Prioribus Duâ—ibus Commitibus Baronibus Liberis Teâ—entibus Burgensibus qui de Domino Rege tenent in Capite and this is also confirmed from the Title to a Parliament held at Perth Anno. Dom. 1427. being the 23d of King Iames I. Summâ—nitis voâ—atis mâ—re solito Episcopis Abbatibus Prioribus Comitibus Baronibus Liberi Tâ—nentibus qui de nobis tenent in Capite de quolibet Burgo certis Buâ—genfibus so that I think nothing can be plainer from these ancient Statutes then that the Scottish Parliaments did anciently consist of no other Members then the Bishops Abbots and Priors Dukes and Earls Barons Free-holders and Burgesses which held of the King in Capite Having thus shewn the ancient Costitution of the Scotish Parliaments for your satisfaction I shall farther shew when and how it was altered In the Seventh Parliament of King Iames the First held at Perth A. Dom. 1420 there was a Law made which I shall contract That the small Barons and Freeholders need not to come to Parliaments and that for the future out of each Schirefdome there should be sent two or more wise men after the largeness of the Schirefdome the which shall be called Commissaries of the Shire and that these should have full power finally to hear and determine all causes to be proposed in the Great Council or Parliament and that the said Commissaries should have Costage of them of each Shire that ought to appear in Parliament or Council I have only given you an Abstract of this Statute because it is pretty long and pen'd in old Scotish English but you may consult it at your leisure And this is farther confirm'd by a subsequent Act of Parliament of King Iames the Sixth holden at Edinburgh Iuly the 29 th 1587 wherein after a repetition of the former Act of King Iames the First and a Confirmation of the same it follows thus And that all Freeholders of the King under the degree of Prelates and Lords of Parliament be warned by Proclamation to be present at the choosing of the said Commissioners and none to have voit in their Election but sik as hes Fourtie Shillings Land in free tenandrie halden of the King and hes their actual dwelling and residence within the same Schire c. I need give you no more of this Act but I think it is most clear from this as well as the former Act of Parliament that the Commons in Scotland were only the Kings Tenants in Capite and are so at this day since none but they can either choose or be chosen Commissioners for the Shires but as to the Buroughs who do each of them send but one Commissioner or Burgess except the City of Edinburgh which sends two all which are chosen by the Common Council of the Towns Now there are in Scotland three sorts of these Burghs that is to say Royal Burghs Burghs of Regality and Burghs of Barony but only the Royal Burroughs the Burgi Dominici Regis or qui de Rege Tenent in Capite send Commissioners to Parliament and are in number Sixty To conclude that I may apply what hath been said concerning the Constituent parts of the Scotish Parliament to ours anciently it seems to me that from the great affinity there was between ours and theirs 't is certain that our and their Communitas Regni was the same that is they were the small Barons and Tenants in Capite F. I cannot deny but that the Parliament of Scotland hath for above these two hundred years consisted of the Bishops Abbots and Temporal Lords together with the lesser Tenants in Capite or their Representatives the Commissioners for Shires and Burgesses of Cities and Towns till the Reformation that the Bishops and Abbots were quite taken away tho the former were restored to their places in Parliament by a Statute made in the latter end of King Iames the First yet I cannot allow that from the beginning of that Government the Scotch Parliaments have consisted of no other Members than those since the word Communitas coming as it does in these old Statutes and Records I have now cited immediately after the Praelati Comites Barones Milites c. must signifie a distinct order of men from the Tenants in Capite called in the Statute of King Iames the First the small Barons and since the Citizens and Burgesses though none of those Barons were also comprehended under this Communitas and whom you grant to make the third Estate why this word might not comprehend all the other great Freeholders I can see no reason to the contrary And therefore I suppose that in the Reigns of K. David 2 d. or Robert the 2 d. or else the beginning of Robert the 3 d. there was a great alteration in the constituent parts or Members of the Scottish Parliament and about that time the chief Freeholders or Lords of Mannors who held of Bishops Abbots and other Temporal Lords as well as of the Tenants in Capite or else of the King by petty Serjeantry or Socage Tenure as also many of the small Towns or Baronies might either forbear coming at all or else desire to be excused because of the great trouble and charge of attendance as you see the smaller Tenants in Capite afterwards did when Commissioners for Shires were appointed in their steads and so might by degrees leave off coming or be excluded by some Law not now extant and thus the Tenants in Capite might become the sole Representatives of the
I grant all the lesser Barons or Tenants in Capite were to be Summonld by the Sheriff to come to the Common Council of the Kingdom the King might have only call'd some of the greatest and wisest of them and such as he thought most fit to advise him in making Laws and imposing Taxes upon the Nation And the like Prerogative his Son Henry the Third resumed during the greater part of his Reign as I shall shew you from divers old Statutes by and by And that our Kings did often take upon them to call whom they pleased and omit whom they pleased of these Tenants in Capite may appear by those who were called Pares Baronum or alios Magnates who are put after the Barons and of these there are many instances of their being called to Parliament and again omitted in several Kings Reigns after the Commons were a third Estate as represented as at this day F. I must beg your pardon if I cannot come over to your opinion notwithstanding what you now have said since I do not find your reason to come up to what you intend therein for you only suppose but without any proof that the words Populus and Communitas must signifie only Tenants in Capite in the ancient Scotish Charters and Statutes All the Argument you bring to the contrary is that I cannot shew you any Law by which it was altered to what it is now and therefore that the Constitution has been always the same as at this day Now pray consider whether this will not press altogether as hard upon you in relation to England for you cannot shew me any Law whereby the Tenants in Capite were excluded here and Knights of Shires introduced in their fleads and therefore by the same Rule let the Scottish Parliaments have been of what they will yet ours have been still the same they are now But if you say that this contrary usage hath been introduced either by the Kings Prerogative or by the silent consent of the People or by some Law that is now lost are not all the same Arguments to be made use of in the case of the Scotish Parliaments which I may upon as good Grounds suppose to have deviated from their original Constitution as you do that our English Parliaments have done it So that if those Arguments are of any weight they will serve for England as well as Scotland but if they are not it is in vain to make use of them at all The like I may say as to Burroughs in Scotland since it is as easie to suppose that divers Burroughs in Scotland might voluntarily desist from sending their Deputies to Parliament that did not hold of the King in Capite as it is that divers Burroughs in England did Petition to be exempted from sending Burgesses to Parliament by reason of their inability to pay the Expences of their Burgesses as I could shew you by divers Precedents some of which are in Print had I now time As for the rest of your Discourse I cannot imagin to what it tends for if the Tenants in Capite had any place in or right to come to Parliament how came they to have it but by reason of the great Freehold Estates they held of the King and if so I can see no reason why those that had as good or better Freehold Estates than they should be all excluded Or why a small Tenant in Capite of but one Knights Fee held of the King in Capite should give him a right to a place in Parliament and get that a Mesne Tenant or Vavasour as he was then called who held ten Knights Fees of some Bishop or Abbot who perhaps did not hold in Capite at all should have no right of appearing there nor of choosing any Representative for him since notwithstanding all you have now said the Doctor either contradicts himself or you when he tells us expressly in his Answer to Mr. P. That the Tenants in Capite who were no Barons represented only themselves and not the Commons but how this will agree with what he says in his Introduction that the Body of the Commons had no share in making Laws c. before 49 th of Henry the Third unless they were represented by thd Tenants in Capite and if so must then certainly represent those that he here calls the Body of the Commons of England Collectively taken But as for your notion of the Parliament's being the King's Court Baron tho you have borrowed it of a Learned Scotch Lawyer Sir George Meâ—â—ensy yet let me tell you it was never true for it is well known that the Great or Common Councils both in England and Scotland are much more ancient than the Tennres of Lands by Knights Service or then the very Institution of Mannors in this Kingdom which the Doctor tells us are of no higher an original than the Norman Conquest But admit I should allow your notion of the Parliaments being anciently the Kings Court Baron then certainly all the Tenants in Capite had a right to appear there and to be not only Suitoâ—s but Judges of all differences arising among the Tenants in the Lords Court where neither the Lord himself nor his Steward were Judges and that of right and not by savour whereas you suppose such a Court-Baron as was never heard of where the Lord could admit or exclude whom of his Tenants he pleased to which if they had a right ratione Tenurae certainly he could never do So that instead of a Court-Baron and a Common Council according to King Iohn's Charter whereby all the Tenants in Capite were to be Summoned to this Council or pretended Court Baron you suppose the King still retained a Prerogative of calling or omitting whom he pleased which instead of confirming the validity of the Charter and that it was to be a Rule how such Councils should be called for the future you make to signifie just nothing and that no Common Council was ever called according to that Model But pray shew me a Court-Baron wherein the Tenants ever took upon themselves a Power of giving Taxes out of their Estates that did not hold of the mannour though they were resident within it But indeed you are out in the whole matter for the Doctor himself grants in his answer to Mr. P. when he gives us King Iohn's Letters of Summons to a Council directed to the Barons and Knights and as he translates Eidelibus Feudatories or Vassals of all England wherein he lets them know that he had sent his Letters to every one of them if it might have been done Now what reason had he to write thus if these Gentlemen had no right to be consulted or that the King might have called or left out whom of them he pleased But the Barons and Tenants in Capite were in another mind when in the 37th of King Hen. III. as Mar. Paris tells us they refused to Act or Proceed upon any thing
without all the rest of their Peers divers of whom it seems the King had for some reasons then omitted to Summon But as for your instance of the Barons Peers or alios Magnates which were somtimes Summoned and sametimes omitted in the Reigns of our three Edwards You do well to put in that it was after the times that the Commons were a third Estate for indeed it was only after that the Tenants in Capite had left off making a distinct Council by themselve which I suppose was about the end of Henry III. Reign and then it is true the King called several of these Tenants in Capite as also others that were not so by Writ to the House of Lords as Pares Baronum i. e. not as real Barons but Barons-Peers since a baâ—e Summons by Writ did not as yet nor long after vest a Peerage in their Heirs so that upon the whole matter I see no reason from any thing you have urged from the example of Scotland to make me change my opinion that the Tenants in Capite were anciently the sole Representatives either of this or that whole Nation in Parliament for pray take Notice that I do not find the Tenants in Capite so much as mentioned in the ancient Statutes of that Kingdom or Charters of their Kings as the Common Council or Parliament of Scotland before the Reign of King Robert III. which was but late in Comparison of the antiquity of those Councils in that Kingdom M. I could say more as to the Antiquity of the Tenants in Capite their coming to Parliament as the sole Reprensentatives of the Nation before the time you mention but it grows late and therefore I shall wave it at present and so shall only proceed to remark that great part of the Errour of the Gentlemen of your Opinion proceeds from this false ground that you suppose that the Parliaments both of England and Scotland were a perfect Representative Body of all the Free-houlders and Freemen of those Kingdoms which is a meer Chymera for in the first place if we will consider it never was nor indeed is so at this day since you your self must acknowledge that all Copy-holders and Lease-holders under Forty Shilling a Year all Freemen in Towns Corporate where the Elections lies wholly in the Major and Aldermen or Common Council and lastly all that will not pay Scot and Lot in divers Burrough Towns are utterly excluded from giving their Votes in the choice of Parliament Men and consequently from having any Representatives in Parliament though sure as much Freemen as the rest of the Kingdom and this either by general Statutes or else by the particular Charters and Customs of those Cities Towns and Burroughs all which are lookt upon as good and lawful Representatives of those Cities and Burroughs so that I am clearly of the Doctor 's Opinion that the Tenants in Capite as well those who were Barons as those that were not only represented themselves and not the Commons as being as you truly observe never chosen by the People and as no Man can believe that a great Lord or Bishop could Represent his Mesne Tenants so neither could the smaller Tenants in Capite who were no Barons be properly said to represent theirs and yet these might according to the Custom of Feudal Tenures and the Power they then had over their Tenants Estates very well make Laws for them and Tax them at their pleasures because the main interest and strength of the Kingdom lay almost wholly in them and these as the Doctor very well observes having the Power of this or any other Nation de facto always did make Laws for and Tax the rest of the People But to say somewhat to the Authorities you have brought from the County Palatines of Chester and Durham I know not what old Priviledges they might pretend to of not being forced to give Voluntary Aids or Subsidies of their Moveable Goods without their consents yet this much I think may be made out that as for all Land Taxes and the general Laws and Statutes of the Kingdom they were as much bound by the one and as much liable to pay to the other as the rest of the Subjects of England or else how came they afterwards to be bound by our general Statutes at all as certainly they were from all times since the Conquest though Chester had no Representatives in Parliament till the Reign of Henry VIII and Durham had none till our times F. You Gentlemen who hold this general notion of Tenants in Capite are so intoxicated with it that you do not care what absurdities or contradictions you fall into provided you may maintain your dear opinion as I shall shew you by and by But first let me tell you your Reply to what I have now said is very fallacious and in some points mistaken as to the matter of Fact For in the first place I doubt not but our Common Councils or Parliament were in their first institution the main Body or Representative of all the Freemen of the Nation and though it may by long continuance of time to deviate from that Institution yet that it is to be attributed either to some prevailing Custom or else positive Law to the contrâ—ry for it is certain that in the Saxon times all the Free holders of England had a right of coming to Parliament in Person and hence it is that Liber Tenens Liber Homo Ingenuus were Synonimous and of the same signification as I have proved from Sir Henry Spelman's Comment in his Glossary upon those words and hence it is that the Members of those Councils were so numerous as they were in those times and long after till they became so vast and unmanageable that they were fain by degrees to pitch upon this method of sending Knights of Shires to represent them which is certainly a very ancient Institution since the Tenants in Ancient Demean claimed to be exempted from the Expences of Knights of the Shires by Pâ—escâ—iption as I shall shew you more particularly by and by and likewise since all Riches consisted in those days in Land or else in Stock or Trade therefore the Cities and Burroughs and Towns by reason of their Riches had always a share in the Legislative Power as well as in giving of Taxes and since all such Citizens and Burgesses not being able to come in Person as the Free-holders could were represented either by their chief Magistrates called their Aldermen or else by Burgesses of their own chusing as at this day so that all Freedom or Ingenuity being in this as in all other Common-wealths reckon per censum by the Estates of the owners our Common Councils were and that truly the Representatives not only of the Estates but Persons of all the Freemen of the Nation for I am so far of the Doctor 's Opinion that the Cheorl Folk as they were then termed were little better than the Scotch Vassals or
's particular direction since by the general Writ of Summons provided by King Iohn's Charter the Sheriff of each County was to Summon all the Minor Barons and Tenants in Capite which could not be if only the more Discreet were then Summoned nor is there in this Preamble the least Hint or Intimation of any Writs directed to Counties Cities or Burghs for the Choice of Members I desire you in the next place to take notice that Britton who lived about that time supposes this Statute to have been made Per la Purveance de Robert Walerand per Commune Assent des Graunts Seigneurs du Realme By the Procurement or Forecast of Robert Walerand and by common assent of the Great Lords of the Realm without any mention of the Commons I have a great many more such Statutes to instance in which are said by M. Paris to have been made in several Parliaments of this King by the Community or Common Vniversity or Baronage of the whole Kingdom but I pass them by because we have sufficiently debated most of them already F. If only some of your Great Lords and Tenants in Capite could thus meet and make Laws to bind all the rest and they so tamely put up this strange Infringement of their Priviledges as you suppose it seems their Power was much abated since the 37 th year of this King when as I said Mat. Paris tells us that the Barons would do nothing without the rest of their Peers whom it seems the King had then omitted to Summon and therefore I must needs tell you that I am not of your Doctors opinion nor yet of Cambden's nameless Author that this King after his victory over Montfort and his Adherents could by his Prerogative call or omit what Peers he pleased since it is contrary to the Declaration of all the Bishops Abbots and Priors in Full Parliament 2 Rich. 2. wherein they claimed That holding per Baronium it did belong to them de Iure consuetudine Râ—gni Angliae that is by Rights of Prescription to be present in all Parliaments as Peers of the Realm and to treat consult and ordain concerning the Affairs of the Kingdom and if the Spiritual Lords claimed this Priviledge sure the Temporal Barons might with the like right have made the like claim and I am sure it is highly derogatory to the Rights of the Peerage of England to maintain that the King either hath or ever had the power of calling and leaving out what Lords he pleased and so to make pack'd Parliaments to serve a turn when ever he pleases But to come to the main strength of your Argument that because the more Discreet men of the Kingdom of the Greater as well of the lessâ—r are only mentioned in this Statute that therefore there were only called to it such Lords and Tenants in Capite as the King pleased to Summon and that all the rest were left out which is a very idle Supposition for at this rate may as well say that there were no Temporal Barons there at all and that by the Greater discreet mâ—n are to be understood some of the Bishops and Judges who tho no Peers yet were then the most Learned in the Laws and Customs of the Kingdom of any persons at that time and consequently the most wise and discreet to draw up Laws and by the lesser sort of discreet men shall be understood such Great Clerks and Lawyers tho not Tenants in Capite as the King pleased to chuse as being likewise most able to advise him But if you tell me that this Interpretation is forced I may as well say the same of yours and that with greater reason Yet I shall prove that this Parliament was Summoned in no other manner and consisted of no other persons than those that used to appear in all other preceding Great Councils or Parliaments In the first place therefore I must put you in mind of what I have already said that there is no conclusion to be drawn from the bare penning of the different Forms of ancient Statutes who were Summoned to the making of them nor by what power they were Enacted some of them it is true being drawn in the form of the Kings Charters or Writs without any mention of the Assent either of the Lords or Commons and others are said to be Enacted by the whole Realm without any mention of the King at all and I have given you a List of divers old Statutes from the Reign of King Henry III. to the time of King Edward III. in which there is no mention at all made either of the King or any other of the three Estates and yet no Man I think but will grant that these Statutes were all made and agreed to by them according to the usual Forms tho it be not particulaly expressed and therefore to give a better account of this Law it is fit we consider that these words convocatis Discretioribus Regni are no more restrictive to some particular Persons then if it had been in the Superlative Degree and instead of Discretioribus it had bin Discretissimis or Sapientissimis Regni which no Man would interpret to mean only a few of those whom the King should judge the wisest and most discret Men of the whole Kingdom and therefore we must not mind the Grammatical but Legal sence of these words and then it amounts to no more than this that by the Greater discreet Men were meant the Lords Spiritual and Temporal as under the lesser Discreet Men were included the Commons But that these Minores Descreti cannot be understood of the Tenants in Capite only appears by the conclusion of the Preface to this Statute of Marle-bridge in these words Provisiones Ordinationes Statuta subscripta â—b omnibus Regni ipsius incalis tam majoribus quam Minoribus firmiter inviolabiliter temporibus perpetuis Staâ—neriâ— observari so that if by the Majores Iâ—colae who were to observe these Statutes the Lords Spiritual and Temporal are meant then by the Minores Incolae Regni must be understood by the same reason the whole Commons of England and so likewise for Parity of reason by the Minores Discreti mentioned before in the Preface must be also meant the Representatives of the Commons in Parliament And that this alone can be the genuine sense of these Words may appear by comparing this Statute with another made at Gloucester the 6th of Edward I. where in the Preface it is recited in these words purvenant mâ—sm le Roy pur Amendement de son Royalme pur pluis plenier exhibicion de droit sicome le profit d'office demande appelles les pluis Discretes de son Royalme auxibien des Greindres come des meindres establie est acordan'ment ordeine So that if the Commons were there called to this Parliament and if by the Greindres Discretes were understood the Lords then by the like reason under Meindres Discretes must be meant the
future Parliaments the words are ad faciâ—ndum quod â—unc de Communi Consilio ordinabitur or the like as appears by the Writ of Summons of the 23d of this King which the Doctor has printed whereas the words in this Writ are ad consentiendum c. â—iis qua Comites Barones Proceres â—radicti rune duxerint concordanda c. And if this had been done at the request of all the Tenants in Capite as you suppose how come the Bishops Abbots and Priors who held also in Capite to be omitted and not mentioned in this Writ to have joyned in this request as well as the Earls Barons and great Men But as for the Doctors next precedent viz. a Writ to the Sheriff of Northumberland to return two Knights of the Shire and then the next day after other two for the same County I am not at all satisfied that those Writs were a Summons to a Parliament and not to a great Council for besides the Title of the Writ is de Militibus Eligendis Miâ—tendis ad Consilium and the words in the Writ are not the same with those which were commonly used in Writs of Summons to Parliament as I have already shewn ' you in this Writ of Summons we are now upon Whereas in the Summons to Parliaments of the 23d of this King the ordaining part doth as much refer to the Commons as to the Lords the Commune Consilium consisting of both whereas in these Writs you have cited they were to consent to such things which the Earls Barons and great Men should think fit to agree to but that I may shew you a little more plainly the absurdity of this fancy of your Doctors that these Knights of Shires were now Summoned the Parliament sitting pray let me ask you one or two Questions concerning this business pray who were these Gentlemen that the King you say thus Summoned to Parliament M. According to the Doctors account they must have been all Tenants iâ— Capite since he often tells us that out of these alone the Knights of Shires were chosen at the first F. Well but then who were these Magnates and Alii Proceres mentioned in the Statute of Westminster and in this Writ of the 18th of Edward I. M. I must own my self at a loss certainly to define who they were for if I say they were the smaller Tenants in Capite who are here put as a distinct order from the Comites Barones immediately foregoing I foresee you will ask me how these Gentlemen could be â—ummoned since all the Tenants in Capite were at this Parliament already therefore I must tell you I think there were only some of the greatest and wisest of the Tenants in Capite who were no Barons now Summoned and whom the Doctor tells us were often called to great Councils as Barons Peers and who though sometimes called to sit among the Lords were often again omitted in several Kings Reigns so that this Parliament was composed as those of Marlbridg and Gloucesâ—er not of all but only of the more discreet of these lesser Barons or Tenants in Capite F. If this be all you have to say to extricate your self out of this difficulty I think it will not amount to much for in the first place all you have here said is meer conjecture without any proof since this Statute of Westminster 3d. says only in general that it was made at the Instance of the Magnates under which Title your Doctor when he explains the Writ of Summons to the Arch. bishops of Canterbury tells us were frequently comprehended the Barones Majores the Earls and Barons as under Minores the lesser Tenants in Capite which when the Statute of Westmister the first was made he will have to be the whole Commonalty of the Land therein mentioned and why this Parliament of Westminster the 3 d. should not consist of the same Members now needs some better reasons than your bare affirmation to the contrary Besides this Prerogative of calling these Barons Peers to Parliament did not only extend to Tenants in Capite but to other Mesn Tenants also if the King thought them considerable enough for Estates or wisdom to do them that Honour and so was not confined to Summon none but Tenants in Capite who according to your Interpretation of K. Iohn's Charter had all a right to appear by General Wrâ—ts at the Common Council of the Kingdom but you may put what sense you please on these words Magnates Proceres yet I am sure your Doctor can take them in no other sense than for the Community of all the Tenants in Capite both great and small and so he tells us in his Glossary when he Comments upon the Writ of the 30 Edw. 1. which you now mentioned and which refers to this very Parliament of the 18 th when Forty Shillings was granted on every Knights Fee to Marry the Kings Daughter and there the Doctor immediately tells us that such as payed that Scutage were Tota Communitas Regni and no others and of these the Tenants in Capite granted and payed it first for themselves and Tenants c. and which must certainly relate to this very Parliament of the 18 Edw. 1. or none at all M. I confess I do not see how the Doctor can solve this difficulty but by denying what he has already said and affirming as I do now that all the lesser Tenants in Capite were not Summoned to this Parliament but only some of them at last ordered by this Writ to be chosen and returned by the Counties F. Yes he might do it if bare affirming were to pass for proof but I shall not give up my reason upon no better Grounds either to him or you not to mention the improbability of the thing that the King should be now over-perswaded by the Earls Barons and other Great Men to call these Knights of Sâ—ires which had been now omitted ever since the 49 Hen. 3. for above twenty yearâ— when he had no need at all of them but rather the contrary advantage of Governing without them since it is the Policy of Princes rather to diminish than increase the number of the Members of their great at well as private Councils who certainly are most easily managed when they are a few than a great many M. But what if we should go from the Doctors Position and say that perhaps these Knights were chosen out of the Mesn Tenants of the Tenants in Capite many of whom I grant might be considerable for Interest as well as prudence and with whom the King at their request might desire to treat of certain matters which had been before moved and propounded by him F. This is all that can be said and yet is much more unlikely then the other since to believe that the Earls Barons and Tenants in Capite should be now grown so weary of their Power of imposing Taxes and making Lawâ— for the
Council of all the Layety were not summoned at all and so Vice versa the Common Council of the Kingdom often met when the Synod of the Clergy was not convened as appears by the most ancient Writs of Summons to the Bishops we have left us as particularly The first Writ of this kind that is upon the Rolls viz. That for the Bishops which Mr. Prin has Printed in the First Part of his Parliamentary Register in the 6th of K. Iohn and which I have cited from the Drs. Answer against Mr. P. at our last Meeting in which Writ tho' I grant there is a Clause for Summoning the Abbots and Conventual Priors yet there is none for the inferior Clergy But in the next Writ which the same Authors have likewise Published viz. That to the Archbishops of York there there is no Clause at all for Summoning any of the Clergy as such tho' it is true there is underneath an Eodem modo scribitur omnibus Episcopis Abbatibus c. Comitibus Baronibus which shews that this Writ was not to Summon them in their Spiritual but Temporal Capacities So likewise in the next Writ of Summons to Parliament we have left us on the Roll which is cited in Mr. Selden's Titles of Honour as also in the same Parliamentary Register and in Dr. B. against Mr. P. viz. That of the 49th of Henry the Third to the Bishop of Duresme without any Clause of Summons to the Clergy whether Abbots or others So likewise in the next Writ of Summons that is left us viz. That of the 23d of Edward the First Published also by Mr. Prin to the Archbishop of Canterbury in which there is no Clause of Summoning any of the Clergy and tho' there immediately follows another Writ of the 23d of this King in which I grant there is this Clause of Praemunientes Priorem c. viz. The Prior Chapter and other of the Clergy of his Diocess to appear in Parliament yet that they were no necessary part of it but only of the Convocation appears by the rest of the Writs of Summons to Bishops which Mr. Prin has also given us in that Chapter all which if you please to peruse you will find that in near 200 Writs to Parliaments or great Councils the Clause of Praemunientes Clerum is to be found in scarce half of them which shews that the summoning or omitting them depended wholly upon the King's Pleasure and so were no constituent part of the great Council or Parliament as you suppose they were under the first Norman Kings for then sure they would not have been omitted to have been constantly Summoned in all Parliaments as well as the Bishops and Abbots But to come to your next Argument from the numerousness of these Assemblies which you say could not be properly called Numerosa or Infinita Multitudo whereas all the Tenants in Capite as well Ecclesiasticks as Lay-men did not amount in all to 800 there may be an allowance made for this to the Monkish way of Writing of those times who might call such a great or more than ordinary Assembly of the Clergy and Tenants in Capite an innumerable or infinite Multitude when indeed they were but few more than our Lords and Commons are at this day F. I pray Sir give me leave to Answer what you already said before you proceed any farther because what I have to reply to it will be pretty long in the first place you cannot with any reason if you better consider of it deny that the Clergy as well the Superior as Inferior did before your Conquest as well as long after make but one Assembly or Body of a General Council tho' sitting in several Places as the Lords and Commons do at this day for the words in the Old Book of Ely are Adunato Concilio Cleri Populi which is to be rendred the Council of the Clergy and Layety being united and joyned together as I already shewed this word Adunato does always signifie as also by the Confirmation of that Charter of King William's to the Abby of Westminster and to which tho' a Matter of meer Temporal Concernment all the Clergy as well as Layety gave their joynt Consents as appears by the Conclusion of that Charter as also to that of K. Stephen but now cited which they could never have done had they not then made a part of the same General Council or Assembly Having proved to you that the inferior Clergy did anciently make a part of the General or Common Council of the whole Nation I shall now proceed to answer your Objection 'T is true that for a great part of some Kings Reigns for want of the Writs of Summons to the Superior as well as to the Inferior Clergy we cannot certainly tell tho' we may presume it from the general words of the Historians whether the Inferior Clergy were Summoned or not yet this I think I may boldly averâ— that wherever any ancient Author makes mention of the Clerus and Populus in general being present at any such Common Council it must necessarily mean not the Bishops and Abbots or the Superior Clergy alone or the great Lords and Tenants in Capite onely but those and the Representatives of the whole Nation both Clergy and Layety taken together as I think I have sufficiently made out Nor is your Objection considerable from that writ of the 6 th of King Iohn that no Inferiour Clergy were summoned because onely the Abbots and Priors are mentioned at the end of it to this I answer that granting it to be a writ of Summons to a Common Council of the Kingdom which is not yet proved the omission of the Inferiour Clergies being summoned is no cogent Argument to prove they were not there since for ought as you and I know there might be other writs issued to the Inferiour Clergy distinct from those to the Bishops and Abbots Which last used to have distinct writs to each by themselves and I may as well suppose these writs to be lost as you do that all the general writs to the smaller Tenants in Capite who were no Barons and yet were to be all summoned according to King Iohns Charter are all lost and as for the Abbots and Priors mentioned at the end of this writ of King Iohns they were such as held onely in Capite or else such as did not if the former this might be onely a Council of Tenants in Capite and none other of which I grant there were many held in those times upon occasion of Wars Scurages and other matters but if by these Conventual Abbots and Prioâ—â— summoned by this writ you will mean all Abbots and Priors of whatever Tenure then it appears plainly that this great Council consisted of many other Ecclesiasticks than what held in Capite and if so why might not the Inferiour Clergy as well make a part of it But as for your next Authority the writ
to the Pope But Anno 40 Edw. III. when the Pope demanded the Arrears of this Tribute from the King the Prelates Dukes Count Barons and Commons upon their full deliberation in Parliament resolved with one accord that neither the King nor any other could put the Realm nor People thereof into such subjection sanz assent de eux without their assent viz. as well of the Commons as of the Lords and that it appeared by many Evidences that if he had so done it was done sanz lour assent and contrary to his Coronation Oath c. Now what can be more plain than that above three hundred years ago there was not the least dispute that the Commons of England of which the Citizens and Burgesses were then undoubtedly a part ought to have been present in the Commune Concilium Regni or Parliament of King Iohn's Reign and to have assented to that King's Resignation to make it legal and valid as well as the Prelates Earls and Barons M. As for this Argument I need trouble my self no further than to give you the Dr's Answer in his own words viz. All that the Resolution of this Parliament in this case proves is that King Iohn could not subject himself his Realm or People without their Assent but proves not who they were that in such Cases at that time gave or denied their Assent or how they did it or whether 153 years before this Resolution the Commons were represented by Knights Citizens and Burgesâ—es as at this day The Prelates and Barons gave their Answer first that such a Subjection could not be made without their Assent and then the Commons were asked what their Thoughts were and they answered in the same manner and in the same Words the Barons had done and when they answer altogether They do it in the same form of Speech conceived first by the Barons without any Consideration whether the Commons were the same Body of Men at the time of Executing the Charter of King Iohns Subjection c. as at that present or no. F. I must freely tell you I am not at all satisfied with this Reply of the Drs. for if there is no heed to be taken of the House of Commons Answer to the Pope given in so solemn a manner as this was there is no Credit to be given to any thing they could say if they are once suppos'd to speak like Parrots by Roat and only as they were taught by the Lords without any Consideration of the Truth or Falshood of what they averred And tho the first Proposal of this matter was by the King to the Lords yet the Pope then threatning to Excommunicate the King and put the whole Realm under an Interdict it was certainly the Interest as well of the Commons as the Lords to avoid the blow by a wary and true Answer to the Popes demands for had their Answer been so idle and frivolous as you would make it it had been advantage enough for the Pope to have return'd in answer to this Letter had what the Dr. alledges been true that the upstart House of Commons had nothing to do to meddle or treat of any such matter since they were none of the parties to the agreement nor one of the Estates at that time when King Iohn resign'd his Crown and made himself and Kingdom Tributary to his Holinesses Predecessours nor was the space of an hundred fifty three years from the time of King Iohn to the 40th of Edward the 3d so far beyond the memory of man as that so memorable a Transaction could not be well known to the Pope as well as to the House of Commons then in being since the making them a 3d Estate fell out but in the time of all their Grandfathers at farthest so that it is scarce possible that the memory of so remarkable a Transaction of which the whole World then rang should be lost in two or three Generations But I shall now proceed to shew you that as it was the express Judgment both of the Lords and Commons that King Iohn could not make the Kingdom Tributary to the Pope without their Consent in Parliament so was it the Judgment also of the whole House of Commons in the 2d of Henry the 5th and admitted by that Noble Prince and the House of Lords that they had ever been a member of Parliament and that no Statute or Law could be made without their Assent as appears by a Petition or Protestation presented by the said Commons to the King in Parliament a Copy of which I shall now read to you as far as it concerns the matter in Question Our Soveraign Lord your humble and trewe Lieges that ben come for the Comune of your Lond bysechin unto your riht twissness that soo as hit hath ever be thair Libertie and Freedom that there should noo Statute noo Law be made of less than they yaf thereto their Assent considering that the Comune of your Lond the which that is and ever hath be a member of your Parlement been as well Aslentirs as Petitioâ—ers that fro this time forward by Compleint of the Comune of eny Mischâ—ef asking remedy by Mouth of their Speaker for the Commons outher else by Petition written that there never be no Law made thereupon and ingressed as Statute and Law neither by Additions neither by Diâ—â—inutions by no manner of Term â—e Terms the which that should change the Sentence and the intent asked by the Speakers Mouth or the Petitions by foresaid â—even up in 〈◊〉 by the foresaid without Assent of the foresaid Comune c. This Petition is so plain that it needs no Comment therefore pray tell me what you think of it M. In the first place give me leave to tell you that I do not find at all by the Kings Answer to this Petition that the King allowed the matter of Fact therein set forth to be true but rather the contrary as you may see by the Answer it self in these words the King of his Grace especial granteth that fro hensforth nothing be enacted to the Petâ—â—ions of his Comune that be contrary of their asking whereby they should be bound without their Assent saving alway to our Leige i. e. Royal Lord his Real Prerogatys to grant and deny what him lust of their Petitions and askings aforesaid And I shall farther give you the Drs. Answer to this Argument which is to this Effect The design of this Petition was not to set forth the Antiquity of their Existence but their Right that nothing might be enacted without their Assent contrary to their intent and liking and to shew that it was never done since the Commons were a third Estate or as they say a Member of Parliament therefore 't is needless to prove that which no Body denies that the Assent of the Commons was then and is now required to the making of all Statutes and Laws but pray give me leave to ask you with the Dr
from that 7th Edward the First I think that can by no means do the business for which you design it for in the first place this is only Declaration of the Bishops Lords and Commons of the Land that it belongs to the King to defend i. e. forbid all force of Arms but mark Sir what force sure it is only meant of such Force as belongs to the King's Prerogative to forbid viz. force of Arms against the Publick Peace and such as he might punish according to the Laws and Usages of the Realm and therefore the Statute expresly declares that as Subjects they are hereunto bound Aid him their Soveraign Lord the King at all times when need shall be but does this Act any where say that he hath an Irresistible Power to disturb this Peace by his own private Illegal Commissions or that any men are bound to assist him in it or because for example he hath Authority to punish all men according to Law that shall come to Parliaments with force of Arms that therefore he hath an unlimited power of raising what Forces he would and in prisoning or destroying the whole Parliament if he pleased and that no bodâ— might resist him if he had gone about so to do The like may be said if the 〈◊〉 should notoriously and insupportably by force invade all the Civil Liberâ—â—â—â— and Properties of his Subjects by Levying Taxes and taking away theâ—r Estates by down-right Force contrary to Law now can any body in his senses believe that the Act of 25th of Ed. 3. was made to prevent all Resistance of suâ—h Tyrannical Violence and that the Resistance of those Forces whether forreign or domestick that might be sent by the King 's private Commissioners to murder or enslave us is making War against his Person or that it comes within any of the Cases expressed in that Statute and therefore cannot fall within the compass of Sir Edw. Coke's Comment upon this Staâ—ute all the offences therein specified being Treasâ—ns at Common Law before that Statute was made nor is the Reformation there mentioned to be understood of a just and necessary Defence of our Lives Liberties Religion and Properties as setled and established by the Laws of the Land to be looked upon as making War against a weak or seduced King but is rather in defence of him and the Government by opposing Tyranny which will certainly bring both him and us to Ruine at last so the Reformation he there mentions is only to be be understood of such Insurrections and Rebellions as have been made under the meer pretence of Religion or obtaining greater Liberties for the common sort of People than they had by the Law of the Land such as were the Rebellions of Wat Tyler in King Richard the Second and Mortimers in Hâ—â—ry the 6th Reigns not to mention the other Rebellions raised by the Papists in the times of King Henry the Eighth Edward the Sixth and Queen Elizabeth's Reigns all which being begun by Seditious or Superstitious men were certainly rank Rebellions and so are and ought to be esteem'd by all good Subjects M. I grant these pretences seem very fair and specious yet notwithstanding this your pretended right or a necessity of Resistance of the King or those commissioned by him in case of Tyranny has been still looked upon as Rebellion in all Ages and the Actors dealt with accordingly where ever they were taken F. I do not deny but as long as Arbitrary and Tyrannical Princes could get the better of it and keep the Power in their own hands they still Executed for Traytors whosoever opposed or resisted their wicked and unjust Actions tho' they were never so near Relations to them thus both Edward and Richard the Second put their Uncles the Dukes of Lancaster and Gloucester to death meerly because they joyned with the rest of the Nobility and People to prevent their designs So that it is not the Execution of the Man but the Cause that makes the Traytor since Princes are seldom without a sufficient number of Judges and Jury-men to condemn whomsoever they please to fall upon But that the Clergy Nobility and People of England have always asserted this right of Self-defence in case their Liberties and Properties were uniustly invaded by the Tyrannical or Arbitrary Practices of the King or those about him I think I can prove by giving you the History of it in so many Kings since your Conquest as will render it indisputable if you please to give me now the hearing or else to defer it till the next time we meet M. I confess I was so weary of sitting up so long at our last Conversation that I made a Resolution not to do so any more and therefore since it grows late let us leave off now and I promise to meet you here again within a night or two and then I will hear how well you can vindicate your right of Resistance from Law or History but if you have no better proofs for it than the Rebellion of the Barons in King Iohn and Henry the Third's Reigns you will scarce make me your Convet since Impunity does never sanctifie a wicked action or render it the more lawful and you have already given it me for an Axiom that a facto ad Ius non valet consequentia F. I accept of your Appointment with thanks but pray do not forâ—judge my Arguments till you hear them and as for the Axiom I allow it for good provided I may urge it in my turn but in the mean time I shall wish you good night M. And I the same to you FINIS Bibliotheca Politica OR A DISCOURSE By WAY of DIALOGUE Upon these Questions Whether by the ancient Laws and Constitutions of this Kingdom as well as by the Statutes of the 13th and 14th of King Charles the II. all Resistance of the King or of those commissioned by him are expresly forbid upon any pretence whatsoever And also Whether all those who assisted his present Majesty King William either before or after his coming over are guilty of the breach of this Law Collected out of the most Approved Authors both Antient and Modern Dialogue the Ninth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford Arms where also may be had the First Second Third Fourth Fifth Sixth Seventh and Eighth Dialogues 1693. Authours chiefly made use of in this Dialogue and how denoted in the Margin Dr. Sherlocks case of Resistance S. C. R. Mr. Iohnsons Reflections upon it I. R. S. Dr. Hick's answer to Iulian Intituled Iovian H. I. I desire the Reader to remember that whenever I make use of the word People in this or the following Discourse I mean thereby the whole diffusive body of the Nation consisting of the Clergy Nobility and Commons The PREFACE TO THE READER I Must beg your pardon if I have exceeded my intended design in the Preface to the first of these Dialogues of reducing what I had to say on the
this Letter I now mentioned was writ to the Pope which transaction I shall give you almost verbatim out of Mat. of Westminster and Henry de Keyghton in Anno 1297. being the 26th of Edward the First when the King having extorted a great sum of Money from the Clergy and People contrary to Law and being then going into Flanders he called a Parliament at Westminster where most of the Earls and Barons refused to appear until such time as their Petitions for the ease of their Countrey were heard and that the King would again confirm Magna Charta Yet nevertheless the King upon his confession of his Male Administration which he made before all the People with Tears in his Eyes and promise of amendment then obtained of the Commons an Aid of the Eighth Penny of their Goods But as soon as the King was gone over the Constable and Earl Mareschal with other Earls and Barons went to the Exchequer and there forbad the Judges to levy the said Tax upon the People by the Sheriffs because it was done without their knowledge without whose consent no Tax ought to be exacted or imposed so that the said Earls and Barons being thus gathered together and the greater part of the People joyning with them at last Prince Edw. then Lieutenant of the Kingdom was forced to call a Parliament to which the Earls and Barons came attended with great multitudes both of Horse and Foot but would not enter the City of London till the Prince had in his Fathers name confirmed the great Charters and had passed the Statute de Tallagio non concedendo both which were afterwards again confirmed by the King his Father some time after his Return And this will serve to explain the last Article in this Statute which comprehends the King's Pardon or Remission to Humphrey Earl of Herâ—ford and Essâ—x then Constable and Roger Bigot Earl of Norfolk Mareschal of England the two principal Leaders in the late Resistance with all other Earls Barons Knights and Esquires of their Party all Leagues and Confederacies as also all Rancour and Ill-will with all other Transgressions against them And pray see Sir Edward Coke's Comment on these words you compare our English Histories with this Act of Parliament the Old saying shall be verified That Records of Parliamentâ— the truest Histories The King had conceived a deep displeasure against the Constable Mareschal and others of the Nobility Gentry and Commons of the Realm for denying that which he so much desired yet for that they stood in defence of their Laws Liberties and Free Customs c. I suppose he refers to the Resistance but now mentioned whereupon he did not only restore the same to them as aforesaid but granted special Pardon to those against whom he had conceived so heavy a displeasure c. and such a one as you will scarce read the like and after a short gloss upon the words Rancour and Ill-will he thus comments on these words etiam transgressiones si qâ—as fecâ—inâ— here the words si quaâ— sicâ—iâ—t were added lest by acceptance of a pardon they should confess they had transgressed So careful were the Lords and Commons to preserve their Ancient Laws Liberties and Customs of their Countrey so that it is plain that Sir Edward Coke then thought the Lords and Commons had not transgressed in thus standing up tho' with force of Arms for their just Rights and Liberties and which sufficiently proves that this Author did not conceive such a Resistance to be making War against the King and so Treason at that time at Common Law and consequently not to be afterwards Treason by the Statute of 25th of Edward the Third as you would have it since that Statute dâ—es not make any other Overt-acts to be Treason but what had been so by Common Law before this Statute was made But in the Reign of this King's Son Edward the Second there were much more pregnant and fatal proofs of the exercise of this Right of Resistance by the Earls Barons and People of England against Peirce Gaveston whom having been before for his Mis-government of the King banisht the Realm by Act of Parliament and coming over with the King's License but without any reverse of the said Act Thomas Earl of Lancaster the King's Uncle with the rest of the Earls Barons and Commons of the Land took up Arms against him And tho' he raised some Forces by the King's Commission yet they fought with him and took him Prisoner and beheaded him near Warwick Some years after which the said Thomas Earl of Lancaster with Humphrey de Bohun Earl of Hereford together with divers other Earls and Barons took Arms and spoiling the Lands of the two Spencers Father and Son came up to London where the King had called a Parliament in which the King was forced to banish the said Spencers out of the Kingdom tho' they quickly returned again against whom when the said Earls above mentioned and divers other Barons and Knights again took Arms but being fail'd by some of their Consederates were over-power'd by the King's Party and the Earl being taken Prisoner was attainted and beheaded at Portfract yet was the this Judgment against the Earl and those of his Party afterwards reversed in Parliament in 1 mo Edward the Third and their Heirs restored in blood as also to the Lands of their Fathers as besides the Act it still to be seen upon the Rolls appears more plainly by a Writ of this King 's reciting that whereas at a Parliament at Westminster among other things it was agreed by the King the Prelates Earls Barons and Commons of the Kingdom that all those who were in the Quarrel with Thomas E. of Lancaster against the Spencers should have their Lands and Goods restored because the said Quarrel was found and adjudged by the King and the whole Parliament to be good and just and that the Judgments given against them were null and void and therefore commands restitution of the Lands and Tenements now in the Crown to the Executors of the said Earl and the like Writs are found for the other Lords and Gentlemen that had been of his Party And further that not only this Resistance made by this Earl and the rest of his followers but also that which this King himself made together with Queen Isabel his Mother against the Mis-government of the King his Father through the evil Counsel of the two Spencers appears by the Act of Indemnity passed in the first Year of this King in the preamble of which there is recited a short History of the wicked Government and Banishment of the Spencers Father and Son and also how Thomas late Earl of Lancaster was by their procurement pursued taken executed disinherited and how the said Spencers and Robert Baldock and Edmund Earl of Arundel by the Royal Power they had usurped had caused the King that now is and the Queen his Mother to be utterly forsaken of the King
since by the subsequent words in this Oath it is restrained to the taking Arms by his Authority against his Person or those Commissioned by him which shews that nothing here is intended to be forbidden but taking up offensive Arms upon popular pretences without and against the Authority of the Law which is further explained in another Test by the Authority of both Houses of Parliament Thirdly 'T is observable this is but a Test upon some that were to come into Offices and can by no means make any change in the Ancient Law which cannot be changed by Implication nor does this amount to so much the first part of this Oath requiring only that the party admitted into Office shall so declare and believe and tho' the second Clause call it a Traiterous Position yet this is restrained only to these two particulars That Arms may not be taken up by the King's Authority against his Person or those Commissioned by him which can have reference to nothing but that distinction taken up in the late Times of Civil War when the Parliament pretended to take Arms and grant Commissions in the Name of King and Parliament by vertue of that Authority which they supposed he left with them at Westminster so that this Clause can by no means exclude any Arms made use of for Legal defence according to Law Fourthly and lastly Tho' the words against those Commissioned by him may seem to extend the matter further and is mistaken by some as if â—t required at least Passive Obedience to all Commissions of the King tho' never so illegal yet there is not the least colour for it since nothing is a Commission but the King 's Legal Command or Authority pursuant to some Law and for putting the same in Execution which is the Legal definition of a Commission and when this Test was first brought in to the second Parliament of King Charles the 2d and that the word Legal was offered to be added to the Bill upon a long Debate it was only left out because it was declared by all the Lawyers in the House even by Sir Hen. Finch then the King's Sollicitor and agreed to by the whole House that it was clearly implied and could bear no other construction but that all Illegal Commissions were Null and void and in no Legal sense could be called Commissions so that taking up Arms in the defence of the Law and pursuant thereunto cannot in any wise be called a taking Arms against the King's Person or those Commissioned by him and farther that by the words in pursuance of such Military Commissions are meant such as are warranted by that Act such as the King may issue by his Royal Authority which is bounded by Law and consequently cannot grant any Commissions but what are according to Law so that if these Commissions are granted to persons utterly disabled by Law to take them as all are that will not take the Test appointed by the Act of the 25th of K. Charles the Second intituled An Act to prevent the dangers that may arise from Popish Recusants as also all Commissions to do any Illegal violent action are absolutely void and consequently may be resisted or else our Magna Charta with all the other Laws that establish Liberty and Property as also our very Religion it self Established by Law may be either undermined by the King 's new Dispensing Power or else subverted by open force and every Commission Officer in a Red Coat will be as sacred and irresistible as the King himself But to conclude That the Instances I have given that the King's Commission may be abused to the destruction of the Nation nay of the whole Parliament are not so unlikely and remote as you imagine Pray let me put you in 〈◊〉 that as for that pretended Commission to Sir Phelim Oneal tho' it is true it did prove afterwards to be forged yet was it not known to be so till long after and therefore having all the signs of a true Commission under the King 's great Seal the poor Protestants in Ireland were to have had their Throats cut according to this Oath before ever they could be satisfied whether it were true or not But that a Popish King persecuting and destroying his Protestant Subjects only for matters of Religion is not so improbable a thing as you would have it the French King 's late Dragooning Imprisoning and sending to the Gallies all that refused to renounce Heresie as they call it and subscribe to the Articles of the Romish Religion has given us but too sad and recent an example and how you can assure me that the King acting upon these very Principles and being governed by like Confessors will never do the same things I should be glad to receive some better satisfaction than his bare word to the contrary Nor yet is my other Instance of its being left according to your Doctrine in the King's power to make a violent assault upon the persons both of the Lords and Commons assembled in Parliament whenever he pleased without any Resistance whatsoever so remote and improbable as you are pleased to make it since you may find it still upon Record among the Articles exhibited in Parliament against Robert de Vere Duke of Ireland Robert Tresilian Chief Justice and Sir Nicholas Brembur in the Parliament of the 11th of Richard the Second which I have already mentioned the 15th Article of which was That they by their false Council had caused the King to command the said Nicholas being then Mayor of London suddenly to rise with a great power to kill and put to death the said Lords viz. Thomas Duke of Gloucester and the other Lords there named and the Commons viz. of the Parliament of the 10th of this King who were not of their Party and Conspiracy for the doing of which wickedness the said grand Traitors above-said were parties and presents to the destruction of the King and his Realm So that if this Treason had not been discovered and that no private persons might then resist those Commissioned by the King it would have been Treason according to your principles for the said Lords and Commons to have resisted those that were thus sent to assault them and take away their Lives and what hath once happened 't is not impossible but it may happen again And we may remember how about little more than 30 years since that the K. of Denmark shut up the Senators and Nobility of the great Council of that Kingdom in Coppenhagen and threatned them with Death or Imprisonment if they refused to give up all their Liberties and from an Elective King make him and his Successors absolute hereditary Monarchs as they are at this day by means of the Bishops and Clergy of that Kingdom who then basely gave up and betrayed the Liberty of their Countrey and what they have now got by it they best know therefore this is a thing to be considered as a
place as to the dispensing Power which the King has lately assumed to himself in matters of Religion and thereby putting into Offices and Commands persons uncapable by Law of bearing them without taking the Test as I shall not now dispute the Legality or Illegality of the Kings Declaration concerning it so as to that part of it that concerns Liberty of Conscience or dispensing with the Papists and Dissenters to meet in Assemblies for their Religious Worship notwithstanding all the Acts made against Mass and Conventicles it was no more than what King Charles the IId had done before with the Advice of his Privy-Council in which if it had been Rebellion to have opposed him sure it is the same crime in the Reign of his Brother 2. As for the Commission for causes Ecclesiastical F. Since I foresee your discourse upon this Subject is like to be long and to consist of many more heads than I doubt my memory will serve to bear away pray give me leave to answer all your instances one after another as you propose them First then as to the late Declaration concerning the Dispensing Power it was so far from being done by Law or so much as the Colour of it that besides its being against divers express Acts of Parliament which tye up the Kings hands from dispensing with the Act against publick Mass and Conventicles as also that disable all Persons whatever to act in any publick Imployments till they have taken the Test appointed by the said Act in which all non obstances are expresly barred But this Declaration was never so much as shewn to the Privy Council till it was ready to be published and then indeed the King caused it to be read in Council declaring that he would have it issued forth tho' without ever Putting it to the Vote or so much as asking the consents of the Privy Councellours there present though I grant the Title of it sets forth that it was done by his Majesty in Council to impose upon the Nation that stale cheat whereby this King as well as the last would have had us believe that their Declarations had been issued by the consent of the Council when God knows there was no such thing And as for any judgment or opinion of the Judges to support it and make it pass by colour of Law it was never as I can hear of so much as propos'd to them in their judicial capacities though perhaps it might be propos'd to the Lord Chancellor and some of the Judges who were of the Cabal which is nothing to the purpose all that I ever heard to have been brought judicially before them was the Case of Sir Edward Hales taking a Commission for a Collonel of a Regiment after he had openly declared himself a Papist in which great point though I grant the Major part of the Judges gave their opinion for the dispensing Power yet was it only in the case of Military commissions as several of them afterwards declared and not of all sorts of Imployments as well Civil as Military much less for Popish heads of Colledges Parsons and Bishops to hold their Livings Headships and Bishopricks if they pleased to turn to the Romish Religion or that the King should please to bestow them upon Popish Priests it would have been as legal in the one case as in the other Since as for Popish Heads of Colledges and Parsons we have had too many instances of it and if we had none for Bishops we must thank either the constancy of most or the timorousness of some of them if they have not openly declared for the Romish Religion and yet might have kept their Bishopricks notwithstanding but I do not at all doubt but that such a general dispensation for professed Papists to take and hold all sorts of Offices and places of Trust not only Military but Ecclesiastical and Civil would have in a little time brought all Offices and Imployments into their hands Nor is this dispensing power in matters of Religion the sole thing aimed at by this Declaration as appears by the very words and whole purport of it which is not confined to matters of Religion only but claims an unlimited power of dispensing with all sorts of Statutes in all cases whatever none excepted and if so pray tell me what Magna Charta or the Statute de Tallagio non concidendo or any other Law will signifie whenever the King pleases to dispense with them either as to raising Money or taking away mens Lives or Liberties or Estates contrary to Law nay the Papists already give out and that in Print that all Laws for taking away Religious Orders and Suppressures of Monasteries are against Magna Charta by which holy Church that is the Popish Religion then in being is to injoy all her ancient Rights and Liberties and the Abbots and Priors do thereby as well as the Bishops and Lay Lords reserve to themselves all their Ancient Rights and free Customs now whether this unbounded Prerogative would not quickly have destroyed not only the Ecclesiastical but Civil constitution of this Kingdom as they now stand establisht by Law and would have soon introduced both Popery and Arbitrary Government on this Nation I leave it to your self or any indifferent person to consider And though I do not say that the bare giving of Papists or Protestant Dissenters a Liberty of Religious Meetings or Assemblies for Mass or Preaching is an infringment of the free exercise of our Religion establisht by Law yet pray take one thing along with you which is a matter of great moment both to the Dissenters and to our selves that if the King can thus by his Prerogative give both Papists and Fanaticks a Liberty to meet publickly contrary to Law let the latter look to it for he may by the same Prerogative whenever he pleases dispense only with the Papists and keep the Laws still on foot against the Dissenters nay he may by the same unbounded Prerogative dispense with all the Laws for the publick exercise of our Religion and under pretence of dispensing with them only in some particular cases shut up our Church Doors one after another beginning with the Cathedrals and so proceeding by degrees to Parish Churches and though I grant King Charles the IId did assume a power of dispensing with all Statutes concerning Religious Meetings contrary to Law yet the Nation had not then any sufficient reason to rise in Arms against this Declaration since it did not extend the Kings Prerogative beyond those Acts concerning Religious Worship and farther the Nation was not out of all hopes of having it redressed by the next Parliament and so was not in that desperate condition in which it was lately before the Prince of Oranges coming over And you may remember that the Late King upon the joint Address of the Lords and Commons against that Declaration was forced to call it in and cancel it which certainly ought to have been better considered
M. OH Are you come at last I have looked for you these two Nights and now began to fear you were not well or else had distrusted your cause and declined another Conference F. I beg your Pardon for disappointing you which yet I had not done had noâ— some Business hindred me but however to let you see I do not decline another Conference with you upon this Subject pray let us go on where we left off and tell me freely your sense of my Notion of the Kings forfeiture or Abdication of the Government by his violation of the Fundamental Laws of the Kingdom and refusal to repair those Breaches when he might have done it M. In answer to your demand I will deal freely with you and must tell you that I have perused all Writers that have Writ any thing considerable concerning the Laws of Government or of Nations and cannot find in any of them any thing to countenance your Notion of forfeiture or Abdication of an absolute Sovereign Prince aâ— I must still take ours to be notwithstanding all you yet said to the contrary unless what you have cited at our third meeting out of Barclays third Book contra Monarches where he allows the Subjects to resist their Prince in case he go about to destroy the Body of the People or Common wealth whereof he is the Head To which I may also add another Case which you have omitted viz. if the Prince make over his Kingdom to another without the Consent of his People And I confess that both Grotius and Pufendorf agree with Barclay in this Notion Because they look upon both these Cases as their plain downright Renunciations of their Civil Authority over those whom they were obliged to Govern But indeed the first of these Cases is so improbable nay almost impossible to happen that were it not for the over-great niceness of these Writers it need not to have been so much as mentioned since none but a Mad-man can ever go about to destroy his whole People and therefore as a Man out of his Wits such a Prince may be Resisted and lockt up if ever it should so fall out as you your self have confessed it hath very rarely for a Nation to be so unhappy as to have such a Prince but as for the Second viz. the making over their Supream Power to a Foreign Prince that likewise so very rarely happens That it is scarce worth the while to make any dispute about it But in all other Cases they held the Supream Power of every Nation to be absolutely Irresistible in any case whatsoever and if irresistible then certainly uncapable of forfeiting their Right to govern by any pretended or real Violation of the Liberties and Priviledges of the People And Bodin in his first Book de Republica tho' he grant that absolute Princes are obliged in Conscience to keep and maintain all such Priviledges which have been granted to the People by either themselves or Predecessors which are for the good of the Common-wealth yet since the Prince is sole Judge whether these Priviledges are consistent with his Supream Right to Govern and Protect his People he may therefore have occasion sometimes not only to Detract from them or dispense with them in some Cases but may wholy break and lay them aside by turning Tyrant Yet nevertheless in all these Cases People are still bound not to resist them And that he looked upon the King of England as such an Absolute Monarch as well as others he there mentions pray read me the place I now Cited where after he has allowed Resistance to be lawful against those Princes who were not properly Monarchs as enjoying but a share of the Supream Power and among which he reckons the German Emperor and the Kings of Denmark Sweden and Poland But then when he comes to speak of Real and Absolute Monarchies his Sense is quite different as you may see by these words Quod si Monarchia quaedam est summâ unius potestate constituta qualis est Francorum Hispanorum Anglorum Scotorum c. I shall slip all the rest because not to our purpose ubi Reges sine controversia jura omnia Majestatis habent per se nec singulis civibus nec universis fas est summi Principis vitam famam Fortunas in discrimen vocare seu vi feu Iudice constituto id fiat etiamsi omnium scelerum ac Flagitiorum quae in Tyrannis convenire antea diximus turpitudine infamis esset where you may observe that Force or Resistance by which such an absolute Princes Life or Regal Power here called Fortunas are as much forbid as calling him in question by appointing Judges to sit upon him And he there gives us a very good reason for it because all Subjects of what degree soever cannot pretend to any Coercive Power over the Person of a Sovereign Prince F. We have discoursed enough concerning the Resistance of Absolute Monarchs at our third and fourth meeting and therefore I desire we may not fall into that Subject which can produce nothing but needless Repetitions and I have already proved at our 5th Conversation that the King is not an Absolute Despotick Monarch but is limited and tied up by the Fundamental Laws of the Kingdom from making of Laws or raising Taxes without the consent of his People in Parliament and that our Government is mixed and made up of Monarchy with an allay of Aristocracy and Democracy in the constitution the former in the House of Lords the latter in the House of Commons as K. Charles the First himself confesses in his Answer to the Parliaments 19 Propositions and I have farther inforced this from divers Authorities out of our Anâ—ient as well as Modern Lawyers viz. Glanvill Bracton Fortescue and Sir Edward Coke So that since we have such clear proof for our Constitution from our own Histories and Authors nay from the King himself besides the whole purporâ— and style of the very Laws and Statutes of the Kingdom I do not value the Authority of Bodin a Foreigner whose business it is to set up the Authority of the French King to the highest pitch he could and therefore being sensible that antiently the Government of France and England were much the same he could not with any face make his own an Absolute Despotick Monarchy unless he had made ours so too But this is not the only Errour he has been guilty of in our History and Constitution as I can shew you when there is occasion But Arnisaeus who as well as Bodin is so much for Absolute Monarchs yet does in his Treatise of Government called his confess that a Tyrant in an Hereditary Monarchy who violates all the Laws of Justice and Equity to the endangering the Ruine of the Common-wealth doth ixcidere Iure haereditario fall from or forfeit his Hereditary Right But pray make it out by some convincing proofs either from History or Law that our Kings are
was that of the free burrough or Tything wherein by the Laws of King Edward the Confessor the Tythingman or Head burrough was the Judge who as that Law tells us determined all suits and differences arising among Neighbours of the same Tything concerning petty Trespasses on one anothers grounds which if they could not be there determined might then be brought before the Court Baron which was incident to every Mannor and wherein the Suitors and not the Lord nor his Steward were the Judges and this as Sir Edward Coke tells us was first instituted for the ease of the Tenants and for the ending of Debts and Damages under Potty Shillings at home as it were at their own doors and let me tell you by the way that sorty Shillings was theo near as much as forty pound is now and if the business could not be ended here or was of too high a nature it was then brought into the Hundred Court where the Hundreder together with the Suitors were Judges and if they had not Justice there they might then remove it into the Court of Trithing or Lathe which was not the smaller Court of the Tithing mentioned nor yet the Court Leet but a particular Court consisting of three or four Hundreds which tho' now quite lost was in being at the time of the Statute of Merton as I shall shew you by and by and if the business could not be decided in the Trithing it was then removed to the Shire or County Court as Mr. Lambert shews in the Laws of King Edward which was then held as now from Month to Month and in which as well as in the Hundred Court the Suitors alone were Judges and tho' it can now only hold Pleas unless it be by Writ of Justices of any Debt or Damage to the value of Forty Shillings or above yet we â—ind from ancient Authors that this Court was so considerable that we have diverse examples of Causes between the greatest Persons of England and for Lands of great value begun and determined in this Court thus Eadmertes relates the great Trial at Pinnesden-heath between Odo Bishop of Bayenâ— half Brother to your Conqueror and by him created Earl of Kent and Lanfrank Archbishop of Canterbury concerning divers Mannors in Kent and other Counties whereof Earl Odo had diseized the See of Canterbury in the time of Arch-bishop Stigand his Predecessor whereupon the Arch-bishop Petitioned the King that Justice might be done him secundem Legem Terrae and the King thereupon sends forth a Writ to summon a County Court the debate lasted three days before the Freemen of the County of Kent in the presence of many Chiefmen Bishops and Lords and others skilful in the Laws and Judgment passed for the Arch-bishop Lanfrank by the Votes of the Freemen Or primorum or proboâ—â—â— hominum as the Historian calls them So that to conclude this head if no suit could be begun in those days but what was first commenced in the Hundred Court no distringas could issue forth till three demands were made in the Hundred and from thence to be removed to the County Court where regularly all civil causes were try'd by the Suitors as the only Judges as well as in the Hundred Court and Court Baron then it will necessarily follow that unless you can prove which I think is impossible that all the English were at that time Slaves and Villains and had no Free-hold of any sort left them that all Pleading and Proceedings in any of those Courts being before meer Englishmen must have been in English and no other Language so that after all this great cry nor a twentieth part of the Suits in England were brought to London And as for Criminal Causes unless in cases of Treason all Murthers and other Felonies were Tryed and Judged in the Country either within the particular Jurisdictions of Bishops Abbots or great Lords or else of such Cities and Towns who had the Priviledges of Infangthief and Outfangthief together with Fossa and Furca that is a Pit to drown and a Gallows to hang Malefactors and if the offence was done in the body of the County they were then tryed and condemned in the County Court Justices Itinerant not being in use till Henry the seconds Reign M I must confess you have given me a great deal of light in these matters more than I had before but as I shall not dispute whether in the lowest Courts such as the Tythings and Court Barons the smaller English Free-holders might not Judge of Petty causes amongst themselves yet that in those greater causes were brought in the Hundred and County Courts which only the greater Fleemen of the Hundred or County were Judges who these Freemen were Dr. B. hath sufficiently taught us in his Commenes upon the Conquerors Laws as also in his Glossary viz. That they were Tenants in Military Service who in those times were the only great Freemen of the Kingdom and quite different from our ordinary Free-holders at this day These were the Men the only legal Men that named and chose Juries and served on Juries themselves both in the County and Hundred Court and dispatched all Country business under the great Officers I do not deny but that there might be other lesser Freemen in those times but what their quality was farther than that their Persons and Blood was Free that is they were not Nativi or Bondmen it will give a knowing man trouble to discover it to us we find in every leaf of Doomesday Socmen liberi homines Possessors of small parcels of Land but what there quality was and of what interest in the Nation Dicat Apollo no Man yet hath made it out nor can it be done by the account we have of ordinary Free-men for a Century or two last past And for further proof of this That none but Tenants in Capite or Military Tenants at least could be Judges in the County Court appears by the Laws of King Henry the first wherein it is expresly said Regis Iudices Barones Comitatus qui liberas in t is terras habent per quos debent causae singulorum alterna prosecutione tractari c. So that these Barons of the County being certainly Feudal Tenants this service of being suitors to the County and Hundred Courts was a service incident to their Tenures and then it will also follow that those Primores and probi Viri who as you have now related tryed this Cause between Earl Odo and Archbishop Lanfranc and who let me tell you were not only of the County of Kent but of other Counties in England where the Mannors and Lands lay as Eadmerus shews us and who were the Jurors in this great Cause consisted of the great Military Tenants that were not Barons and the less which were the Probi Viri for it can be no ways probable that the ordinary Freemen which made the greatest number and were all bound to
insurrections made him use all the means he could to prevent it for the future so that at the most they were but temporary constitutions and did not last long nor could this Law of the Converâ—eâ— Bell be any badge of slavery on the English since we find the same custom to have been used in Scotland whom you will not say are a Conquered Nation nor do I find the Normans after they came over were any more exempted from this Law than the English Natives but I much wonder you should reckon the Laws of Decenaries or Tythings among the badges of Norman slavery since if you have read any thing in our Saxon Laws you will find as Ingulph tells us that K. Alfred first appointed ut omnis indigena lâ—galis in aliqua centuria decima existerit si quis suspectus de aliquo latrocinio per suam centuriam vel decariam condimnatus paenam demeriâ—am incurreret So that whatever other Laws you find either of our Saxon or Danish Kings or else among those of K. William concerning Triburghs and Tythingâ— It was only to confirm or re-inforce this Ancient constitution but that not only the meanest sort of Fâ—â—emen but the greatest and best Nobility and Gentry were subject to this Law of Tythings may appear by that Law I have already quoted of King Knutes whereby every Free-holder was to have his Family in his Pledge that is was bound to answer for him to the K. and if he were accused to have let him run away by his consent he was to purge himself by his own Oath and also the Oaths of five other Thanes that he was innocent so likewise the Laws of K. Edward confirmed by K. William are very particular on this Subject that all Arch-bishops Bishops Earls and Barons should keep their Knights and Servants there mentioned in their Frithborg that is in their Franâ— Pledg whereof the Lords themselves were to be the sureties aâ— appears by what follows viz. that if any of them offended their Lords should be obliged to do right in their Courts and to the same purpose is the 49th Law in Ingulph's Copy of these Laws the words are these Echascun Seniour ait sun seriaâ—â—u sun plege que si nile rete que ait a dreit el Hundred that is that every Lord keep his Servant in his Pledge that if he offend right may be done in the Hundred So that upon the whole matter I can see nothing considerable imposed by your Conqueror upon the free born English Subjects which they were not tyed to before the Conquest or which did not reach all the Normans he brought over with him as well as they M. I do confess I did not believe there was so much to be said to prove that William the Conqueror never altered the Laws of England in any of its material parts but since you have gone thus far pray proceed to shew me that he any ways confirmed all the Laws of the Saxon Kings his Predecessors since I conceive as a Conqueror he might justly have vacated what of them he would and I do not see any thing in his Coronation Oath that could have obliged him from it F. I doubt not but to give you very good satisfaction in this point for not only your Conquerors Will was never declared that the former Laâ—s should be Abrogated and till such declaration all Laws ought to remain in force even in the Conquest of Christians against Christians according to Sir Ed. Coke's opinion in Calvin's case but indeed the Antient and Former Laws of the Kingdom were so far from being abrogated that they were all confirmed by him for in his fourth year by the advice of his Baronage he summoned to London as the words are in the book of Litch field Omnes Nebiles sapientes lege sud eruditos sut eorum leges Consuetudines audiret Or as Hoveden relates it out of a Collection of Laws written by Glanvil Fecit summoniri per universos Consulatus Angliae Anglos Nobiles sapientes c. and twelve were returned out of every County who shewed what the Customs of the Kingdom were which as Mr. Selden tells us in his History of Tithes being written by the hands of Aldred Archbishop of York and Hugo Bishop of London were with the request of the same Barons confirmed in that Assembly which was a Parliament of that time and then in Hoveden follow the Laws of Edward the Confessor so confirmed by K. William among which is that Law concerning the Office of a King which I have now given you and before this at the very beginning of his Reign he also confirmed the Priviledges of the City of London as appears by his Charter in Saxon which is to be seen at this day which is also confirmed by Ordoricus Vitalis Guliâ—lmus Rex multa Lundoniae postquam Coronatus est prudentâ—r justè clemenâ—â—que disposuit quaedam odipsius Civitatis commoda vel dienitatem alia 〈◊〉 genti proficerent Vniversae Nonnulla quibus consuleretâ—r Ecclesâ—is terrae â—ura quaecumquedictavit optimis rationibus sanxit Iuâ—icium Rectum nulla persona nequicquam ab eo postulavit So that nothing is plainer than that at the beginning of â—worâ—â—eign he strove to oblige all sorts of People as well of the Clergy as Laity to a good 〈◊〉 of his Government M. But yet for all 〈…〉 self have granted that after the time of his Confirmation of these 〈…〉 you cannot deny whether provoked by the frequent 〈…〉 or else resolving to make use of his Right by Conqâ—est 〈…〉 upon the English Nobility and Gentry and outed most of 〈…〉 and forced them to flee into Foreign Countries so 〈…〉 Sword as soon as ever he came to the 〈…〉 whatsoever English he thought might be dangeâ—ou◠〈…〉 notwithstanding his Confirmation of K. Edward's Law he 〈…〉 by Conquest And as for your 〈…〉 Câ—â—querors confirming these Laws the 〈…〉 whether he admitted any of the 〈…〉 consult of the weighty Affairs of the 〈…〉 throughly setled himself on the English Throne especially if it be considered that K. William kept not all the promises which he made at all times Now as your self allow this grant was made in the fourth year of his Reign but he had not then setled himself so well as he would nor had he then made an entire Conquest of the Nation that was not done until after the great appearance of the Natural English in Armes and the great meeting which Frederick Abbot of St. Albans with others headed at Berkhamslead which was not until above four or five years after this confirmation so that your Testimony from the Litchfield Chronicle and Roger Hoveden being before he setled himself as he could and intended to do signifies nothing and that it was from sometime after this transaction that Mat. Paris reckons the thorough Conquest and subduing the Nation as appears by this note in the beginning of the Life of Abbot
as a wilful Forfeiture or Abdication of the Government and it is from this first going away that I suppose that the Convention dates his Abdication since though it is true after his return to London he took upon him to make an Order in Council to stop the further pulling down and plundering Popish Chappels and Papists Houses yet was it sign'd by very few of the Council and almost only by those who had been in some Office or Place of Trust so that though he was then own'd by them yet since that Order did only serve to shew his Zeal for the Popish Party and was never obey'd or taken notice of by those to whom it was directed and that neither the Prince nor the City of London owned him afterwards since it had already delivered it self up to the Prince and had as well as the Peers invited him to repair to that City I cannot see that so slight an act as this Order of Council should be counted a return to or a re-establishment in the Throne since the King had not only lost the Crown by his wilful departure without calling a Parliament or giving the P. any satisfaction in the great business of the pretended Prince of Wales or the Nation by repairing up those desperate breaches he had made upon our Fundamental Laws but had also lost his Title to the Crown by being Conquer'd by the Prince in open War as I shall prove more at large another time so that if you please better to consider this Vote of the Convention you will find that these words had Abdicated the Government do not only refer to the last clause of his having withdrawn himself out of the Kingdom but to everyone of the foregoing Clauses viz. His having endeavour'd to subvert the Constitution of this Kingdom his breaking the Original Contract and his having violated the Fundamental Laws so that it is plain their notion of Abdication was not fixt only in the Kings Desertion or bare withdrawing himself out of the Kingdom but from his renouncing the Legal Title by which he held the Crown and setting himself up as a Despotick Soveraign and ruling by a mercenary Army and therefore all that you have said about the Kings quitting the Government with a design to return to it again as soon as with safety he might is altogether vain for as he went away because he would not Govern any longer as a King by Law so hath he yet given us no satisfaction that he would not return again to Govern otherwise or rather worse than he did before had he an opportunity so to do that is as the Letter I cited but now phrases iâ— to return and have his ends of us so that this being indeed the case I think I can very well justifie the last clause in this Vote that the Throne was thereby vacant M. Sir you have spoke a considerable time and I doubt more than I can distinctly remember to answer as I should therefore before you proceed to this last Clause of the Vacancy of the Throne the dispute about which I foresee may hold longer than upon any of the former pray give me leave to reply to what you have already said in Justification of all the other parts of this Vote in the first place I will not deny but that if the King had once got the power of making what Mayors Aldermen and other Officers in Corporations at his pleasure it would have gone a great way towards the making the Majority of the Parliament-men nay I likewise grant that by his dispensing Power he might have made what Papists or other person he pleased Sheriffs in any County who would have made such return of Knights of Shires as he should have thought fit yet I suppose this would not have been to the subversion of the Constitution of the Kingdom which I think I have proved to consist originally in the K. alone before any great Councils or Parliaments were instituted And as for those violations of the Fundamental Laws and Liberties of this Kingdom the Declaration instances in I think several of them may very well be justified by antient Presidents and ad judged cases in Law and therefore were so far from being violations that they are no more than the Kings exercising of his due Prerogative and though at our ninth meeting I had not time so well to consider these matters as also because I was not then prepared to defend the Kings Proceedings I shall therefore make bold to examine the most considerable of those Articles which the Late Declaration supposes did so highly tend to subvert the Protestant Religion and the Laws and Liberties of this Kingdom I shall begin with the first viz. His assuming and exercising a power of Dispensing with and Suspending of Laws and the Execution of Laws without consent of Parliament which Power let me tell you by the way was not asserted to Dispence with all Laws or Statutes whatsoever but only such as the Subject has no particular cause of action in and where the damage that may arise by it doth not concerns the publick safety of which the K. is sole Judge and not any particular mans interest I suppose you cannot but have read that learned and short account of the Authorities in Law upon which Judgment was given in Sir Edw. Hales his Case written by Sir Edward Herbert Lord Chief Justice of the Common Pleas in vindication of himself wherein I think he proves beyond any possibility of a just answer that the dispensation granted to Sir Edward Hales to receive a commission and act as a Collonel of Foot was good notwithstanding his not having received the Sacrament and taken the Oaths and Test appointed by the Act of the Statute of the 25 of Charles II. where he first proves from my L. Cock's Authority that it belongs to the Kings Prerogative to Dispence with all Positive or Penal Laws the penalty thereof is only popular and given to the King and to shew you that my Lord Cook who was never counted any great friend to the Kings Prerogative was not single in this opinion he gives you also the authority of the year Book of Henry the VII where it was own'd by all the Judges That the King can Dispence with all things which are only Mala Prohibita and not Mala â—n se though expresly forbid by Act of Parliament for though says the Year Book before the Statute Coining of Money was Lawful but now it is not so yet the King can Dispence with it so that say I if he can dispence with that which is now made Treason by EÃ the III. he may certainly dispence with all other Penal Statutes of a less nature But because I grant there is some difference between Common Penal Laws which barely prohibit the doing of some things under a penalty and this Act in which there is also an express Clause of Non-obstante that all Licences or Dispensations contrary to this
void Clause then how came it to be so afterwards pray say what alteration has been made in the Laws of England by Act of Parliament as to this point since the time that these Acts have been made for if not how comes a clause that had force in 23 Henry VI. to have none in a Henry VII could the Twelve Judges in the Exchequer Chamber by giving their Opinions destroy the force of an Act of Parliament M. I do not say they can only I affirm with my Lord Coke and all the Judges That no Act can bind the King from any Prerogative which is inseparable from his Royal Person but he may dispense with it by a new Obstante as a Sovereign power to command any of his Subjects to serve him for the publick-weal Nor can this Royal Power be restrain'd by any Act of Parliament And upon this ground it is that my Lord Coke in the 12th Report from whence I have taken this Conclusion maintains that such Dispensations made by Sheriffs are good and upon the same ground the Dispensation lately granted by the King to Sir Edward Hales and all other Popish Officers and Ministers as well Civil as Military must be also good F. But admit I shew you that there was never any such Judgment in the Exchequer Chamber in the 2 of Henry the VII as my Lord Coke and late Lord Chief-Justice Herbert supposes will it not then follow that all their Arguments that are wholly founded upon this Statute will fall to the ground M. Yes indeed that will be something but how will you prove that can you believe so many learned Judges should be mistaken in this matter and those of your opinion only should make this discovery F. I do not desire you should believe me but your own eyes and therefore look upon the Year Book it self here you see that it is indeed so far true that all the Justices were of opinion that the Grant of the Sheriffdom of the County of Northumberland to the E. of that County for Life was good but do not tell us all the reasons whereon their judgment was grounded tho it seems to have been because the Sheriffdom of that County had been commonly granted for life before this Statute of Henry the VI. was made as appears by these Words in the Year Book Iudgment for it is such a thing as may be well granted for Term of Life or Inheritance as divers Counties have Sheriffs by Inheritance which began by the King 's Grant then was shewn a Resumption I suppose it meant an Act of Resumption of the Sheriffalty as appears by the following Words and then was shewn a Proviso for it Count. de N. and if so the King had a right to grant it only for Life again but none save Radcliff one of the Barons of the Exchequer cites the Statutes of the 28 th and 42 d. of Edw. the III. against Sheriffs holding for above a year but doth not cite this Statute of the 23 d of Hen. the VI. at all nor doth he or any other of the Judges nor the Court ground their Opinion upon any Non-obstantes express'd in the said Acts for if you please to consult them you will find there is no Clause of Non obstante in any of them before the 23 d of Henry the VI. which is not at all mention'd here therefore I wonder how Fitz Herbert in his Abridgment comes to vary so far from the Year Book from whence he must have took it as to make the Judgment to have been grounded upon the Non obstante in that Statute of Henry VI. for none but Radcliff speaks any thing of the Patents being good with a Non-obstante to those Statutes and the Court in all the rest of the Case agree the Patent to be good by reason of the said Proviso in an Act of Resumption and then fall into debates concerning the other point how this Patent was to be understood M. I must confess if this be so as it seems to be prima facie I wonder my Lord Coke and other Learned Lawyers have laid so great a stress upon and drawn so many Arguments from this Judgment of the Judges tho I must needs also tell you that tho only Radcliff insists upon the Non-obstante yet since the rest of the Judges did not contradict him it seems to me that they all concurr'd with him since according to the Proverb Silence often gives consent But this much I suppose you cannot deny but that ever since Henry VIII time at least Sheriffs have been frequently continued for above a year and the Judges have been also dispenced with to go the Circuit in their own County and Welchmen have been commonly made Judges and other Officers in Wales by vertue of the King's Dispensations notwithstanding the particular Clauses of Non-obstante in the Statutes of Richard the II. Henry the IV. and Hen. the VI. by which they are expresly prohibited F. I do not deny what you have now said as to matter of Fact only let me tell you I conceive that the Reason why the King has taken upon him to dispence with those Statutes you mention was because that the Causes for which they were first made have long since ceased For when those Statutes against Judges going the Circuit in their own Counties and Sheriffs holding for above a year were made both the Judges and Sheriffs were found the one by going their Circuits in their own Counties where they had great Interest and Acquaintance to have too much awed the Common-juries and the other by their great Estates and Commands in the Country to have made partial returns of Jurys and also by their long continuance in their Office to have learnt a trade of oppressing the people so when by the stop that was put to those Abuses by these Statutes you have mentioned there was no need of a strict observation of these Laws and also when after the Civil Wars between York and Lancaster and all things became setled under King Henry the VII who was of a Welcâ—â— Family there was then no more need of observing the Statute of Henry the IV. against Welchmens beating Offices especially after the Stat. of the 27th of Henry the VIII when Walâ—s became incorporated with England and had by that Statute a right conferr'd upon it of sending Members to Parliament tho the Parliament might not think fit or at least forgot to repeal them and yet finding that the Kingdom received no prejudice but rather benefit by such Dispensations and not caring to quarrel with their Kings for sometimes using a Prerogative by which they were rather benefited than grieved those Dispensations have ever since passed without any complaint in Parliament which would certainly have been before this time had they sound the same Grievances and Reasons to have still continued for the strict observance of those Laws as there were at first for the making of them tho if they will have my private Opinion
called Catalogus Gloriae Mundi written on this subject where in his 8 th part consid 18. he hath this amongst other Comments on the word Nobilitas Nobilitas etiam causatur ex loco quoniam civis ex urbe splendida oriundus Nobilis est for which he there gives many Authorities And this Title he looks upon as due also to Countrey Gentlemen living upon the Husbandry of their own Estates or Annual Rents And that by the word Magnates are often understood the Knights of Shires commonly called in old French Grantz des Countees I can give you sufficient Authorities Now this word Magnates is always rendred in our old French by Grantz For the proof of this I desire you in the first place to take notice that Rot. Claus. 3 E. 2. in 16. dorso you will find this Title Inhibitio ne qui Magnates viz. Comes Baro Miles 〈◊〉 abqua alia Notabilis persona transeat ad partes transmarinas Where you see the word Magnates is applied to Knights at least as well as Earls and Barons And amongst the Common Writs of Michaelmas Term Anno 34 Edw. I. in the keeping of the Remembrancer of the Treasury of the Exchequer the Knights of Shires and Barons of Cinque-Ports are called Magnates So also in the Statute 25 E. 3. de servientibus it is there Enacted per Assent de les ditz Prelatz Countes 〈◊〉 autres Grandes de la dite Communalte illonques Assemblez Also in the Statute-Book printed in French in the Statute of the Staple 27 E. 3. the Knights of the Shires are expresly called Grantz des Counties And lastly as for the word Optimates which is derived from the superlative Optimus it signifies no more than the best sort of men in any Commonwealth or City And in this sense William of Malmesbury in his History speaking of the rich Citizens of London hath this Remarkable Passage Londinenses qui pro magnitudine Civitatis optimates sunt And that not only Knights but also such Citizens as were remarkable and eminent for their Estates or Offices in Cities had the appellation of Magnates appears from an Ancient Manuscript Book kept in the Archives of the City of London where in Anno Dom. 1229. being the 13 th of Hen. 3. an Act of Common Council was made per omnes Aldermanâ—aes Magnates Civitatis per assensum univer-sorum Civium quod nullo tempore â—ermitterent aliquem vicecomitem admitti in vicecomitem per duos annos continuos sicut 〈◊〉 extiterant So likewise in the same Book Anno Dom. 1244. 29. H. 3. mention is there made of a Dissention that then arose about the Choice of a Sheriff and the Book says that quidam de vulgo Elegerunt Nichol. Bat. per assensum Majoris Magnates elegerunt Adam de â—ently I could give you more of a like nature but I will not tire you but no doubt but the Eminent Citizens of York and other Cities were called Magnates in those times From all which we may safely conclude That not only Knights of Shirâ— were stiled Magnates but also the Representatives for the Cities were often stiled Proceres Magnates and Nobiles in our Ancient Rolls and Acts of Parliament and other publick Writings I beg your Pardon for being thus long but I could not make an end sooner and prove the true Sense of these Words in question from Ancient Historians Acts of Parliaments and Records by which I hope you will be satisfied how unsafe it is to depend upon the general and various expressions of our English Historians especially as understood by those of yoâ—â— opinion since if we should depend upon them alone the Commons would not oftentimes be found to have been present in Parliament even when the Records themselves expresly prove they were there M. I must confess you have made me think more on this Subject than perhaps otherwise I should have done yet I must observe That most of the Quotations you have made use of concerning the meaning of the words Proceres Magnates and Nobiles c. are from Authors who writ after the time that I 〈◊〉 the Commons as now Represented to have been constantly Summoned to Parliament so that they might very well through haste or inadvertency confound them with the Earls and Lords and so stile them by the same Titles For I will prove to you before the conclusion of this Discourse by undeniable Records That by the words Magnates and Proceres are understood the Bishops Earls and Barons as distinguished from the Commons But I think I can sufficiently prove from Mat. Paris and the Ancient Laws of our first Norman Kings as also from the Magna Charta of King Iohn That by the words Bartneâ— iâ— meant the Tenents in capite who are there only mentioned to haâ— constantly appeared in Parliament till the 18 th E. 1. the Greater and Less â—â—â—ons or Tenents in capite together with those of higher degree viz. the Earls Bishops and Abbots being the only persons who represented the whoâ—e Body of the Nation in our great Councils or Parliaments And I take this to be 〈◊〉 evident and clear that I cannot quit this Opinion without you can shew 〈◊〉 better Reasons to the contrary than hitherto you have done F. I see nothing will satisfie those who have once received a Prejudice 〈◊〉 otherwise I think it may be proved sufficiently from that Clause in Magna Chartâ— I have mentioned That other persons were there before the 49 th of Henry 〈◊〉 besides your great Barons and Tenents in capite And as for the use of 〈◊〉 words you mention in Historians after the Reign of Hen. III. nothing can be a plainer proof for me For if those Historians did comprehend the Common under those general Words or Phrases we have been now disputing about I deâ—sire to know why they might not have been likewise comprehended under thâ— same terms by Mat. Paris and those other Historians who writ other Historieâ— from the Norman Conquest to his time and why thy might not have then conâ—founded the Commons with the Lords as well as they did afterwards But since I see you insist so much upon your Barones and Tenentes in capite whom you wiâ— have alone to constitute the Baronagium or the Communitas or Universitas Barâ—â—gii Angliae pray give me leave to ask you a plain Question Were your lessâ— Tenents in capite or Barones minores Lords or Peers of Parliament or were they Commoners only M. To give you Mr. Selden's Opinion in his Titles of Honour cap. 5. He supposes that from the time of the Conquest to about the middle of King Iohn every Tenant by reason of his Tenure of Lands he held in capite was indifferently an Honorary or Parliamentary Baron but that about the end of King Iohn's time some only that were most eminent of those Tenants sometimes stiled Barones Majores Regni were summoned by several Writs directed to them as