And a while before the Abbot was made a Bishop at London petente Milone Constabulario favore Populi utriusque Ordinis that is the Lords and Commons or rather the Clergy and Laity In Huntingdon we read of Robert Arch-Deacon of Leicester about this Time Elect Bishop of Lincoln Rege Clero Populo summo gaudio annuente And a while after he shews us the King at London in a full Parliament disputing the grand question of Appeals with the Romish Legate For such Appeales saith he had not been used in England till That Henry of Winton the Legate had cruelly intruded them Malo suo crudeliter intrusit The Monk of St. Albans borroweth from him and sometimes repayeth with interests As in that Statute for Priviledge of Churches and Church-yards with all the Clergy so that none but the Pope could absolve from violence done to such in which they all agree he added also another Act of the Parliament that Plowes in the Field with Husbandmen should enjoy the same Peace or priviledge as if they were in a Church-yard His Geffry de Mandevil Consul or Comes was a very great man de magna villa For he speaks of his Princeps Militiae and of another that was his Magister peditum But in Henry of Huntingdon we find him at length clapt up in Prison but scarcely secundum jus Gentium Rex cepit eum in curia sua ex necessitate magis quam ex honestate Hoveden hath of him the like expressions adding also that from a Baron he had been raised to the degree of a Consul that is an Earl For in him the Earl of Flanders is Consul Flandrensis and the Earl of Anjou Consul Andegavensis This was he that come to be Hen. the 2d who at his Landing being Duke of Normandy coyned money which passed here by the name of the Dukes coyn Nor only he but Omnes potentes tam Episcopi quam Comites Barones suam faciebant monetam and of this Nubrigensis Which may be compared with the Saxon Laws of King Ethelstan and others As K. Hen. monetag common In the same Huntingdon we also read that by the Mediation of Theobald of Canterbury and Henry of Winton the King was so reconciled to this Duke and Earl Henry that they never more discorded also that the Duke was made Iusticiarius Angliae next under the King omnia Regni Negotia per eum terminabantur But in Polydore we find this Pacification made by Parliament Cujus Authoritate pactio facta est Matthew Paris is so full of Law Terms that I could beleive him in this to allude to the Law Fines and Recoveries For at this peace he telleth how the Kingdom was again Recovered And after a disgression to Merlins Prophesie in which the phrase of Vice-comites may be duly considered he concludeth thus a War that had raged 17 years together was now quieted by such a Time hoc fine quievit To which he adds that famous story of the Souldier that in this Vacation made a Voyage to St. Patricks Purgatory And by that occasion he relates the best description of Hell or Hellish Torments that I remember in any Historian of credit With which may be compared divers others in the same Author But that which is added at the Souldier return to the King may be added also to what is observed before touching Irelands dependance on England For the same Souldier was again sent by King Stephen into Ireland to be Assistant as an interpreter to Gilbert who had a grant from hence to found an Abbey in Ireland Whither he also carried this Souldier speaking Irish and with Tears he would often relate his Voyage to Hell Which is so recorded and asserted by divers Religious men To K. Stephen's Militia we may also refer that which so many Historians Record of his damning the Hidage or Danegeld Which yet was not his Act but the Parliaments that did Elect and create him King We must discuss it more fully ere long but now for Danegeld we may assert it to be expressed in his very Coronation Oath on which he was admitted One of the clauses was that he should for ever desist from that which had been paid to some of his Predecessors singulis annis And Wendover or Paris express no more But in Hoveden and Huntingdon Dane-geld is expresly specified which both affirm to be then at 2 s. the Hyde They agree also with others That this was again specified in Parliament at Oxford Where the King did again confirm his Coronation Oath Matthew of Westminster doth also Record that of these promises or Oaths he made a Charter which seemeth to be that Charter which the great Reporter in his 8th part affirmeth to be yet found in an old MS. de antiquis Legibus And that the said Charter among divers other things doth expressely confirm the Laws of K. Edward and of K. Henry Nay the Monk of St. Albans affirmeth that in Parliament Congregatis Regni magnatibus he did there solemnly promise to meliorate the Laws or make them better as they should desire or require juxta voluntatem Arbitrium singulorum which we may consider again upon occasion Nor must I omit that much of this very Charter is yet to be read in Print in an old Monk that lived in King Stephen Time and those particulars for confirmation of all good Laws and in special those of King Henry with divers other things that are worth perusal It is in the Monk of Malmsbury but a little after the Letters written to the Pope about King Henries death confession absolution and Anoynting by the Elders according to what was let to the Church by the Apostle St. Iames as in those Letters is more fully expressed Which may be added to that before of the Church Elders Polydore telleth us that in full Parliament at Oxford King Stephen did abolish that which had been oft exacted for Hydage per singula jugera and that he intreated another Parliament to carry on that War which by their Advise and Councel had been undertaken in the Name of Common Wealth Reipublicae Nomine vestro cum Consilio tum Consensu susceptum est and his desire to them was so to act in Person that the People might not be burthened with Taxes And at his end Virgil addeth that for all his continual Wars he did exact little or no Tribute from the People So that the Parliament it seems did wholly manage his Militia From a long Storm at Sea we are now come into a quiet Port and a calm Haven such were the Thoughts Expectations and Hopes of All in Henry the 2d We have his Laws in Print in several places and his Lawyers known enough For who needeth to be told of Glanvil in his Reign of whom before and much I might add from divers others besides Hoveden Who by occasion of that Judges Name hath not only given us a Copy of St. Edwards Laws but hath also asserted their confirmation by
by Commune assent in special of the Clergy And for this Walsinghams Neustria may be added to others in the Road and at his return he is again Crowned before the People as well as the Lords Consilio Procerum Yet Polydore with others is bold to charge his Reign with great exactions on the Clergy in special for his ransome but himself yeilded that the King did send the Bishop of Salisbury into England that by the consent of Parliament Regii Senatus Authoritate he might get his Ransome And himself yeilded that at his return there was a Parliament wherein the King thanked his People for their Faith to him and for that they had helped him in his Wars and Imprisonment And that Ejus Nutu Archiep. Cantuar. was conferred on the said Bishop of Durham and that the Chalices c. were again restored to the Churches and that the Laws with weights and measures were then also corrected or amended K. Iohn's Election must be discussed in another place Of his Military Aids Paris with Wendover is clear that they were granted in and by Parliament Convenerunt ad Colloquium apud Oxoniam Rex magnates Angliae ubi concessa sunt Regi Auxilia Militaria de quolibet scuto duae marcae dimidium Nor are the Records wholly lost of his Parliament summoned about a War with the French or rather defence against them and his Writs are known enough They speak consent of Parliament provisum est de communi assensu Archiep. Comitum Baronum omnium Fidelium nostrorum Angliae quod novem Milites per Angliam inveniant decimum bene parat ad defensionem Regni Besides the Rolls this is found in the 9th part of the great Reports and in divers others His Charter is now so well known in Print that I need not cite any clause thereof No not that so clear for the Militia Nullum scutagium vel Auxilium ponam in regno nostro nisi per commune Consilium Regni nostri Yet I may add that the Aides there excepted and called Reasonable being such by Common Law were afterwards assessed and ascertained by Parliament For which the first of Westminster may be compared with the 25 th of Ed. 3d. and in the 14 th of that King his Aides were remitted by Parliament because for his Wars he had taketh other Assistance than was due by Law which was much excused by himself and divers other Kings And for this I might cite the 48 th of H. 3d. the 25 th and 31 th of Edw. 1st the 10 11 12 and 13 of Edw. 2d the 19 th and 20 th Edw. 3 d. who did buy Souldiers rather than Press them as the Roman Historian of the declining times of that Empire Of the Barons Wars I must not speak a syllable they do deserve a discourse by themselves and it may be possible er'e long to see it Now I shall only observe that our great Charter was rather the Cause or occasion than the Effect of those Wars For had it been so kept as it was made the Crown might have rested in peace enough They which perswade others that this Charter was first created by King Henry and extorted from him only by a prevailing Sword seem not to consider so much as its Title as it now is printed where we find it granted in his 9 th year Although it was so ill performed that it needed confirmation afterwards Matth. Paris is very clear and plain in this that it was wholly the same or exactly agreeing with that of K. Iohn in nullo dissimilis Nay he speaketh of K. Iohns Charter quas sponte promisit Baronagio Angliae and again in K. H. 3 d. sponte liberaliter concessit And the Popes Letters tell us of K. Iohns Charter granted most freely Liberaliter ex mera spontanea Voluntate de Communi consensu Baronum suorum c. Besides the very words in one of those Charters spontanea voluntate nostra dedimus concessimus pro nobis Heredibus nostris Libertates has subscriptas Nor were these new priviledges then first Created by him But the old Rights of the People by long and ancient Custom as we may find at large also in Wendover with Matthew Paris where they are not only Antiquae Leges consuetudines Regni but we are also told they did present the great Charter of H. the first with his Laws and St. Edward's And to these the Barons sware as the King had also done before For so we read their Covenant was that if the King would break his Oath a juramento proprio resilire which they had some cause to believe or suspect propter suam duplicitatem yet they would keep theirs and would do their best to reduce him to keep his Virgil is also clear in this who telleth us K. Iohn's Troubles and proceedure from his not restoring K. Edw. Laws as he had promised And that the Barons urged him ut promissas tandem aliquando Lege daret and again they ask for their Antient Customes vetera instituta quibus olim Reges Pop. Angl bene rexissent and the close is quae ille prius recepisset se sanctissime observaturum And for Henry the Third the same Author affirmeth that instead of his granting ought that was new the People granted him that grand Prerogative of Wardships which that King accepted with many thanks adding also that the People did not intend it for his Successors But of this I may speak in another place I shall now only adde that if there be not yet enough said from all the Saxon Laws and Histories with the first Norman Confirmations and Explications to assert the Great Charter to be more Antient for its matter than K. Henry or K. Iohn I shall only desire those that are yet unsatisfied they would please to peruse the 2 d. part of the Great Institutes or at least so much of it as speaketh of H. 3 d. and Edw. 1st And it may be they will not wonder that at the Prelates motion that Bastards might inherit the Parliament at Merton cryed out so loud nolumus Lages Angliae mutate c. To which also besides the late Declarations of this Parliament and the Petition of Right may be added the Learned arguments of those Grave and Honourable Judges to whom we shall ever owe so much for standing up in an evil day for Truth and Common Justice in the Case of Ship-money Sir Richard Hatton Sir George Crook and Sir Iohn Denham with the truly Noble Oliver St. Iohn Lord Chief Justice of the Common Pleas. Their Arguments are now in Print by publick Command Nor may I presume to add a word in that subject Nor shall I speak of the times following the great Charter which was confirmed more than thirty times in full Parliament with many special Provisions for the Militia It being most just and reasonable that what did so much concern all should be considered by all Quod omnes tangit
since the late Oaths of Allegiance and Supremacy which have seemed to abate the use I say not the Force of the old Leet Oath of Grand Fealty Which was perhaps never taken or much understood by some of those that appear most zealous in crying up Allegiance For it is natural to us all to be most confident in that which we least understand They seem to have done much wrong to the King and Crown and to have made so many averse from the very Name of a King who by too much Zeal did strain our English Legiance out beyond all bounds of English Laws and then they would fly out to Forreign Laws as if the Moulds and Sphears of Kingly Power or Subjects Duty were by nature equal in all Climates and in every Kingdom Yet I know not that we need be much afraid to appeal to the Laws of any Civil State especially to those of Iudah which if some had known more they would have pressed less for our Pattern But all English Kings had English Bounds by Law and so we Swore Allegiance and no otherwise by Law It was a Pang of Zeal or strange Affection more than Reason or Religion which did make so many once at Cambridge Swear to Edward the Senior To Will what he Willed c Of which the Saxon Chronology But I hope it is not fatal to that Place or to any others in this Kingdom For I cannot learn that e're our Law did force or wish us to oblige our selves by Oath to Think Speak or Doe as any King would doe or have us for to doe if contrary to Law and right Reason Our Law dispenseth much with Womens Homage and of old they were not pressed to it for a Woman might not say I am your Man nor to a man but to her own Husband Sir I am your Woman yet she was to Swear Fealty So were the Bishops also to Swear Fealty except in Frank almoigne but the Law dispensed with a Bishops or Church-mans Homage so that he needed not to say My Lord or Liege I am your Man The Reason is because he was or should be the Man of God and might not give himself so much away to others as any other whatsoever And the reason of this may reach to all our Fealty so far as to perswade us to consider what it is we cannot nor we may not give away to any Man or Angel Was it not an hard Covenant tendred by Nahash that he would protect all those or own them for his Subjects that would put out their right Eyes and yet this had been more reasonable and Just than to have required absolute Allegiance without any Limitation or Salvo at all For this had been to have bid them pluck out their Souls or at least to uncase them from that which nature hath made the Cabinet of Souls that curious Orient Mother of Pearl Right Reason which doth make us Men that I say nothing of that which makes us Christians or Religious Men. We sinned if we wholly gave our selves unto a King without any Limitation or Restriction whatsoever For by so doing we unman our selves and give away to a Man what we owe not what we may not give to any mortal Creature whatsoever Let us discuss it then by Law and Reason what is our Legal Fealty how Made how Limited how Kept or how Dissolved Let us inquire what Duty what Allegiance is commanded by the Laws and what they did not mean they would not have us give to mortal Man Shall we behold the Sun Reflected or Refracted in a Stream of Water shall we consider the King as Cloathed in the Dress or habit of some other Lord For every Lord the meanest and the lowest is or may be to his Vassals as a little King to his Subjects Such was the Plea of Lanfranc as before at Pinenden and so it was adjudged and confirmed by that Parliament that he should be in his Demesn as was the King in his And the old Laws of Alfred Ethelstane Edgar and Canute with the good Laws of Hen. the first do as much forbid and punish Treason against Inferiour Lords as against the King himself for to them also is Homage done and Fealty Sworn by their Vassals saying My Liege I am your Man and bear you Faith of Life Member and Terrene honour saving the Faith I owe to other Lords Or thus My Lord I will bear you true Faith and do you true Service as my Duty to you is so the Statute of Edw. the Second that is according to my Fee And the Mirrour will tell us that it was an Abuse for the King himself to require it any otherwise for it did not consist in a Point but had much Latitude and several Degrees according to the several Fees And if any such Tenant were pressed on more Service or other than his Fee required or were injured he might Implead his Liege in Law For what his Duty was neither himself nor his Liege Lord might determine but the Law For a Villain who of all Vassals was most Fettered most forbidden to molest his Lord yet might be Demandant in some Real or Plaintiff in some Personal Actions where the Lord might not make plain defence as they speak Nay and Villains also did often bring Actions of Trespass And in Cases of others as of Orphans where the Villain is Executor in Trust he may implead his Lord who can not deny to answear though he do it with a Salvo lest such a Suit might make his Villain free as much as if he had made him an Obligation or a Deed of some Annuity or a Lease for Term or Infeofment with Seisin or had sued him in Law for what he might have had without a Suit For these did Enfranchise the Villain as much as being in a City or Castle without claim or Challenge for a Year and a Day or his Lords giving him by the Right Hand to the Sheriff in full County Court shewing him the open Doors and free wayes and delivering to him a Sword and a Lance or other Free Arms which are the wayes of Manumission in the Laws of King William and Hen. the first where we also find the Text so much Commented by Glanvil Bracton Britton Fleta with the Mirror and others They all agree in this that the Bond and Obligation is Mutual and that the Lords Kiss whispereth as much Respect and Defence as the Vassals Kneeling doth his Reverence Nay there is in Law so great an Obligation on the Lord and so great a Charge often in Guarranty which of old was much larger than now in Homage Ancestrell That the Lord would often refuse and delay to take his Tenants Homage So that there was a Writ made commanding him to take it and by it to Oblige himself to his Tenant whom he was to Defend and his Trespass on him in Law had a very great Aggravation because the Vassal was to be sub defensione Ligea as we found the
Bishops Abbots Dukes Senators Populo Terrae Lords and Commons It was Decreed and Enacted That Kings should be Elected by the Parliament à Sacerdotibus Senioribus Populi Eligantur and that being so Chosen they should have prudent Councellers fearing God Consiliarios Prudentes Deum Timentes and that Bastards de adulterio vel Incestu procreati should not be admitted to the Crown it is both in Sir Henry Spelman and in the Magdeburgens cent 8. cap. 9. pag. 583. c. Edit Basil 1567. Egbert by all is a fixed settled Monarch but without or against Right of Succession Ordinatur in Regem So Ethelwerd Omnium Consensu Rex Creatur in Polidor Ad Regnum Electus moxque imperare Iussus Patriae desideriis satisfecit as we read in the Monk of Malmsbury About this time the Mannor of Mallings in Sussex was settled on the Church of Canterbury by Act of Parliament Consentientibus Magnatibus It had been given before by one of the Kings but it was recovered again Eo quod Magnates noluere Donationem illam Ratam fore To what Sir Henry Spelman hath of 838 I shall only add that Matthew of Westminster doth afford us Princes Dukes Earls and Barons both in that and former Years besides Inferior Laios and Clergy whom he calleth Rectores Ecclesiarum and in Ingulph we find Principes Duces Comites Barones Comitatus and Baronias with Proceres Majores long before the Norman Ethelwolf a Monk a Deacon and a Bishop yet Elected King because they could not find a fitter person for the Crown Necessitate Cogente factus est Rex in Roger Hoveden Consensus Publicus in Regem Dari petiit in Bale At Rome he repaired the English Colledge lately Burnt but he displeased the Parliament by getting his Son Alfred to be Crowned by the Pope and by Marrying a Daughter of France whom without their Consent he styled Queen which was against the Common and the Statute-Law contra Morem Statuta as we find in Florilegus to be compared with the Saxon Chronology and Asser Menevensis with Wigornensis and Malmsbury before Stow or Polidore But notwithstanding his Coronation by the Pope King Alfred did acknowledge his Kingdom to the Bounty of his Princes and Elders of his People Deus Principes cum Senioribus Populi misericorditer ac benignè dederunt as himself speaketh in his Will subjoyned to his Life by Menevensis wherein he also desireth to leave his People whom he calleth Noble West Saxons as free as mans Thoughts within him Ità Liberos sicut in Homine Cogitatio How far West Sex did then extend may be known in the Saxon Laws with those of St. Edward and Hen. the first where it is Styled Caput Regni Legum as London before to which all must have recourse in omni Dissidentia Contingentum Edward the Senior was his Son but Elected King by Parliament Successor Monarchiae Eadwerus à Primatis Electus my Auhor is old Ethelwerd King Ethestane a natural Son and so excluded from the Crown by Act of Parliament at Calcuth yet being a gallant Prince of great Hopes and Virtues he was Elected Electus magno Consensu Optimatum à Populo consalutatur ab Archiepiscopo more-Majorum Coronatur as we read in Malmsbury Huntingdon and Virgil. Yet there was a great Lord Elfred who opposed much and e're long Rebelled scorning to Submit to him Quem suo non diligisset Arbitrario being sent to Rome to purge himself of this Treason he Forswore it at St. Peters Altar but fell down and being carryed into the English Colledge Dyed and his Estate by Act of Parliament was given to the King Adjudicata est tota Possessio in magnis in Modicis quemadmodum judicaverunt omnes Optimates Regni Anglorum as the Kings Charter speaketh settling his Land on Malmsbury How tender they were of Blood I spake before and of K. Williams Law Nequis occidatur vel suspendatur but Wigornensis and Hoveden speak of K. Henrys Law for Hanging any found in Furto vel Latrocinio yet in Ethelstane the Wergylds were agreed by Parliament and a Kings Life valued at 30000 Thrymses Of Anlo's League among the Saxon Laws that he was chosen King by some that rejected Edmund we read in Florence and Hoveden as of one that Scrupled in Ethestane because he had Sworn Fealty to Anlave in the Monk of Malmsbury but it might be another Anlave Edred came in by Election being preferred before the Sons of Edmund who was King before him of his Parliament Summoned by Writ we spake before in the Militia About this time were the Constitutions of Odo de officio Regum Secularium Principum they are found in Saxon and are now Printed in Latin to be compared with the Statutes of Calcuth What Power they had may appear in Edwin for Incest Excommunicate by the same Odo unanimi omnium Conspiratione Edwino dejecto Eligerunt Deo Dictante Edgarum in Regem Annuente Populo res Regni Publica despertita inter Fratres and afterwards Clito Edgarus ab omni Anglorum Populo Electus est c. Confluentibus Principibus omnis Ordinis Viris cum magna Gloria Bathoniae coronatus est presentibus Praesulibus ac Magnatibus Universis Datis singulis Donariis consuetis quae Reg. Coronat dari Magnatibus consuescant of which Matth. Westmon Malmsbury Hoveden and Florence of Worcester How this Mighty Edgar was handled and Humbled for Ravishing a kind of Nun is observed by divers and that after his seven Years Pennance being not to wear his Crown Congregatis omnibus Angliae Principibus Episcopis Abbatibus The Crown was again Restored to him Coram omni Multitudine Populi Anglorum cunctis Laetantibus Deum in Sancto Dunstano Laudantibus as may be read in Capgrave Baronius of this and a great Lords Rape of that time speaketh of some Appeal to Rome whence Dunstan was commanded Peccatori condescendere but he would understand it only si Penitens Peccatum relinqueret Nec aliter saith Baronius potuit intellexisse Edgar being dead there was much Contest in Electing the next King De Rege eligendo Magna inter Regni Primores orta est Dissensio quidam Eadwardum Quidam eligerunt Ethelredum as the Monk of Worcester besides Hoveden and Matthew of VVestmon who agree also that at length the Arch-Bishops cum Chorepiscopis Abbatibus Ducibusque quamplurimis did Elect Consecrate and Anoint Edward Who enjoyed it with little quiet and among divers Contests of Parliament affrighted at the House Fall or amazed at the Angels or some Strangers voice they knew not whence E're long we find him hudled into Dust at VVarham which Queen Aelfrith or Aelsted attoned by Hospitals or other works of Devotion but a Fiery bloody Cloud followeth a Blazing Comet Of St. Edwards and St. Dunstans annual Festivals established by Parliament the Laws of Canute It was that Dunstan who presaged so much ill of Ethelred at his Baptism and to him
And where-ever these are found released as to Peterburg Canterbury Westminster but especially to Glassenbury the first and oldest Church in Britain Fons origo totius religionis It may be a clear Demonstration of the Parliaments assent to such a Charter For otherwise they could not be dispensed with by the King as we may find expressed in divers Charters as in those of Crowland which yet had great immunities And of that Restriction Matth. Paris may afford us the true reason because those three were setled for the Kingdom Propter Publicam Regni Vtilitatem ut per ea resisterent hostium in cursibus And K. William's Laws Castel Burg. Civit. fundatae aedificatae ad tuit Gent. Popul Regni ad Defens Regni idcirco observari debent cum omni libertate integritate Ratione Private Castles for habitation may be given in Dower and divided by Pacerners but so may none for publick defence Yet of such also may a man be Tenant by the Curtesie being able to guard them for Publick service of the Common-wealth One grand Objection must be removed but we need not fear it for it will flie or run away of it self 'T is that of the Conquest as many are pleased to call it not attending how little in this they be the Kings Friends for if this were his onely or his main and best Title there might be found in future ages some that may come to think it as lawful to conquer him as it was or could be to conquer them It must be considered for if the foundation be not sure and low the higher the building is the nearer its fall And it hath been observed that the higher Skale got up by accident is more ready to pop down again than it was before while it hung in due poize It seemeth a great weakness to be apt or prone to Suspition and therefore I shall not say I do suspect some that are most zealous for Prerogative or the Title of Conquest to be least acquainted with the Laws or Histories of England But I cannot be wholly free from wonder that any Lawyer or Historian that was friend to the King should be passionate in these which were so clearly quitted by that King whom they call the Conquerour He stood on Stilts or Patents or Pantofles but on plain English ground with two feet as other men The left and the weakest was Succession to Edward whose Kinsman he was and Heir by Will as appeareth by divers Passages in these very Laws of Saint Edward and William which may be seen and read of all But the right Leg with the strongest and best Foot he had to stand upon was the Peoples Assent Consent Acceptance and Election which we shall yet more fully clear when we discuss the Right of Succession or Election to this Crown and Kingdom But for the present it may suffice to observe That all these Laws we now have of King Edward's come to us through the Hands and Grant and Confirmation of King William the Norman and no otherwise Which I need not prove to any that have either read or seen the Laws themselves of which we speak For in the very Title and Preface thereof besides divers other passages in them all this and much more is fully related and recorded For it is there also further added That all those Laws were so presented to the said King William by a sworn Iury out of every County Who did also assert That these which they did present as the Laws of St. Edward were the undoubted Laws and Customs of the Kingdom that had also been collected into a Body by King Edgar and continued though sopite through the Troubles of succeeding Kings till Edward had the leisure to renew or rather confirm what was the Law before Nay when among all those Laws King William did most encline to those which came from Norway whence his Ancestors and Lords had issued forth and where a Bastard might inherit all the Patriarchs of England Compatriotae Regni qui Leges edixerant did so move and press him with such Arguments as may again be well considered that at length in Parliament Concilio habito precatis Baronum the King himself consented as they did desire This is expressed in his own Laws And by his own desire the Archbishop of Canterbury was one of those entrusted with enrolling or recording of those Laws Which to that very King and to his Successors to this very day became one special Clause of the Coronation-Oath Which was To confirm all the Laws and Customs of the Kingdom but especially the Laws of St. Edward called the Confessor And one of King William's own Laws is That all men observe and keep the Laws of King Edward in all things Adauctis his quas constituimus ad Vtilitatem Anglorum If this be not yet clear enough for the Laws themselves which are now extant and may be read and known of all we might confirm it much by Ingulph living at the same time and bringing those Laws with his own hands from London to his Crowland with such an Endorsement or Title of his own making Leges aequissimi Regis Edwardi quas Dominus meus inclitus Rex Willielmus Autenticas esse perpetuas per totum Regnum Angliae inviolabiliterque tenendas sub poenis gravissimis Proclamarat suis Iustitiis commendarat c. He was like enough to know it And the old Book of Litchfield cited in the great Reports besides that of the Iury from every County addeth also That the same King William did by the Counsel of his Barons call by Writ of Summons Summoniri fecit all the Nobles Wise-men Elders of the Witan and learned Lawyers in each County And in that great Parliament Ad Preces Communitatis Anglorum Rex acquievit c. confirming all by Common Council This of Litchsield is now printed in several places and Roger Hoveden agreeth in Henry the Second Nor did he onely confirm but in some things mitigate and in divers explain and clear what might seem obscure or heavy to the People Ad Vtilitatem Anglorum His Laws are now printed both with Mr. Selden's Notes on Eadmerus and with Mr. Wheelock's Impression of the Saxon Laws and History with a very good Preface of Sir Roger Twisden They do oblige us much that love and clear our Laws so far as just and good What Emendations and Additions King William made to St. Edward's Laws in this also of the Militia we have observed before at our unexpected enterance on this Question Which was not at all intended to be once so much as touched but in one Parenthesis Which was past Recovery before this Discourse was so much as designed But now having wandred so much and so far beyond my own purpose as well as my Subject I could almost be perswaded to step a little further and to touch I must no more upon some few passages between the Conquest as they
and nearer in infinitum yet they still shall be Asymptots and never meet for such attend Hyperbolies Which yet is more Demonstrable by Reason than is that of Mersennus or others by sense that Concave Glasses may be placed in such a continued proportion may I say of Reflection that by such it may be possible to fire a Ship or other matter combustible at a far greater distance than between Dover and Calice I say not as some have said in infinitum But in this and all the Mathematicks who can add to him that did contract and correct Longomont into a page Our Country-man he is but at too great a distance in Breda But I must not wander from K. Stephen His Repeal of Roman Laws is also in Sarisburiensis living in the time of K. Henry the 2d an Author of Credit and polite enough It is among his Court trifles Polteraticus or de nugis Curialium Nor is he content to meddle only with mean Courtiers but even of the highest he is plain enough And one of his Thesis is that by Reason and Scripture it is both Lawful and a glorious Act to kill a publick Tyrant But of his exceptions to the Oath of Fealty we must have more in its Time and Place That of K. Stephen is in his 8th Book and 22 chap. near enough to his discourse of Tyrany Where we have also an hint of him that brought those Laws into this Kingdom Theobald the Arch Bishop of Canterbury going to Rome for his Pall some say and for this the Monk of Malmesbury would be considered Who hath also Recorded K. Stephens Oath of which we must speak again I must not dispute whether those Italian Laws by him prohibited were the Civil or the Canon Laws which I rather believe Although I cannot deny but the Civil also did come in or intrude upon our English Laws Nor may I forget a passage of Parliament in that famous Appeal or charge of Treason in King Richard the Second's Time The Lawyers especially Civilians were consulted about the charge They conceived it not to be rightly moulded according to the forms of Law But the great Council resolved and declared that they would proceed by no other Law but the course and Custom of Parliament To which they added that England never was ought or should be Ruled or Governed by the Civil Law which yet is enough some think too much in causes Maritime and Ecclesiastick that I speak not of any other Courts Fortescue or rather the young Prince in him telleth us of some of our Kings that have attempted to bring in the Civil Laws and patrias Leges abolere but I cannot tell who those were no more than the Learned Commentator Except perhaps he may reach up to King Lucius who did desire the Roman Laws even for the State but can we say the Civil Laws were then Born or at least Christned enough for a Christian King But the reason why any King so much esteemed the Civil Law may be rightly guessed to be this grand maxim of Tyranny Quod principi placuit Legis habet vigorem A Sentence of the Civil Royal or Imperial Laws citeth indeed by Glanvil Bracton and others of our Lawyers who refuted rather than allowed it But in this who can add to Mr. Seldens late Dissertations on Fleta Wigornensis lived till K. Stephens time In him or his Continuer we find what Laws these were how or who did bring them hither For we are there told that Theobald with other Prelates had a Summons from the Pope to Rome and there were admitted to a Council such as many ages could not Parallel For thence he saith they brought those Canons or Decrees quae longe lateque per Angliam jam Conscriptae He lived not perhaps to know they were prohibited but he doth intimate enough in what a cold manner the Parliament did entertain the Legate sent from Rome He was a great Leveller it seemeth For he came to pull down and to destroy that so he might plant or build we read it in the Monks Who bring this Legate Coram Rege primoribus And again before the Commons also Episcopis Abbatibus innumera Cleri Populi multitudine Ere long we find K. Stephen at another Parliament ad Boum vadum Oxes foord or Oxford Where some Lords or Prelates are committed for suspicion of Treason And by some it is ascribed to the King alone But in the Monk of Malmesbury we may find it done upon complaint of Those he calleth potent Laicks and by Councel or perswasion of Magnates and Proceres Regni The thing doth speak it self For one of the Lords committed was the great Roger of Salisbury the grand Favorite of whom before His Charge was this in chief that without leave of King and Parliament he had built and fortified a Castle But in his own Devise this was the Castles name he did ensnare himself The Name and Fate hath since been found observed more than once and yet they write it was the fairest Castle in all Europe Matth. Paris followeth Huntingdon and Hoveden but in this they both come short of Malmsbury well acquainted with that famous Roger whose misgiving heart was like to have prevented what did follow in that Parliament But so we might have lost or mist that Act which here was made for the Militia setled clearly in the King and Parliament We find it also in the old Continuer of the Monk of Worcester Who living at that time doth tell us that in full Parliament habito postmodum Concilio coram primoribus Angliae statutum est it was Enacted for a Statute that All Burghs Castles Forts c. in quibus secularia solent exerceri negotia should submit to the King Parliament Regis Baronum suorum juri cedant And by vertue of this Act of Parliament was the Castle of the Devise presently demanded and at length yeilded while the great Prelates neck or his Sons who had been also Chancellor was in the Rope to have prevented his Quartain of which he died In the same Author we find much of an High Constable and several men with that Title One is Milo who did lead the King in Royal State cum honore Regiam ad Aulam ubi Cives fidelitatem Iuraverunt c. Ere long we find him charged with Treason so as is worth considering for the Militia and his Office conferred on Walter de Bello Campo Wigornensi Vice-comite But discontents that rose before did now increase And when the Oath of Fealty was pressed on some they refuse and say the King may take their words if he please But for a Bishoprick the Prelates perswaded a grave man to swallow the Oath and so he did on much reluctance Maurice was his Name Elected by the people a Clero Populo being then presented to the King by Bishops Attesting his deserts and due Election Another Bishoprick is conferred on Philip the Lord Chancellor but Consilio Baronum
tenens to the Sheriff and he standeth when the King dieth When also so many think there is no Sheriff but it may be more considered I must not stay in the Court of Peepoudres incident to every Fair or Market as a Court Baron to a Mannor although it be a Court of Record and a Writ of Error lyeth on its judgment for which Iones and Hall's Case in the 10th Part of Reports and in the 4th Institutes I need not speak of Writs of Error from the Common Pleas to the Kings Bench from the King's Bench to the Exchequer-Chamber and from thence as from the King's Bench also to the Parliament or of the known Statute of Henry the 6th making it Felony to steal withdraw or avoid Records or any parcel of Record But of no Records is the Law more punctual than in of extraordinary Cases of Oyer and Terminer which were more private oft and less fixed being transient on emergent Cases which yet being heinous seemed to require most exact Records especially because there might be Appeal so just and needful if the Judges exceeded but one tittle of their Commission If it were discontinued or expired then the Indictment and all Records were to meet in their proper Center at the King's Bench but in other Cases Records of Oyer and Terminer were sent into the Exchequer So in Edw. the 3d. As in Elizabeth Results on charitable uses and the like were to the Chancery by Act of Parliament The great Seal was the Soul to inform and actuate the Body of Records in all exemplifications from the Rolls in all Writs Pattents or Commissions and the rather also that by this nothing of moment might be hudled up but duly weighed and considered while it passed so many hands and judgments as it should before the Sealing Nor shall I add that an Act of Parliament it Self is not pleadable in a Court of Record but from Record or under the Seal whence the old custom was to remove the Records of Parliament by a Writ of Certiorari into the Chancery thence by the Lord Chancellor into the Kings Bench and thence by a Mittimus into the Common Plea and Exchequer with an usual Writ commanding all the Courts to keep and observe such Acts of Parliament which of Old were Proclaimed by the Sheriffs and were put under the Seal as we may see by the Proclamation now printed among the Statutes of Edw. the 3d. and they were not hudled into Print in those Days not of such vertue in Print as on Record and under the Seal For there were not then such Printers or Copiers that without much caution our fore-Fathers durst trust with all their Lives and Estates which by one dash of a Pen the change of a not a with a to a for or a from might be soon destroyed or enslaved Much less then should a Court of Record be Created but by Record yea and that be shewed under the Seal also For when the Seal was moulded our Ancestors ordained that no Jurisdiction should be grantable but under the Seal which should be known and obeyed by all the People as the Mirror discourseth at large In Edw. the 4th it was resolved by all the Judges in the Exchequer-Chamber that no man could be a Iudg or Iustice by Writ which was also Sealed but by open Pattent or a publick Commission But the Lord Chief Iustice of England hath of late no such Commission or Pattent yea a Sealed Writ and of Old he was also Created by Pattent till about the end of King Henry the 3d. if good Authors deceive me not It seemeth also somewhat disputable whether he were not included in the Statute of Henry the 8th for Commissions to the Judges by Letters Pattent under the Seal However the words are plain enough for Iustices of Eyre which of Old were also by Writ as those of Oyer and Terminer but now not to be but by Comission or Pattent under the Great Seal Which Commission should also be read and shewed in Court lest there be some kind of Demurrer or exception unto jurisdiction which hath been in some Cases at the Kings Bench and may be by Law to all now Judges by special Commission except it be produced under the Seal if the old Books deceive us not who do do not onely ascribe all jurisdiction to the Seal but in all legal exceptions ever admit of that to the Iudg if he be a Party or have not jurisdiction or be otherwise incompetent That the Parliament also will never Erect or Create any Court of Record but by Record and open Commission under the Great Seal I do the rather believe because the Seal is so proper and peculiar to the Parliament being made by common consent of which the Mirror and others at large and by such common consent used and committed to the special care of the Chancellor or Lord Keeper of England as he was called for keeping that which our Fathers esteemed as the Kingdoms Key or Clavis It is well known how King Henry the 3d. was brought to acknowledg That among all great Officers the Lord Keeper or Chancellor did especially belong to the Choice of the Parliament and Ralph Nevil among others refused to yield up the Seal to the King when it was demanded saying that he had received it by the Common Councel of the Kingdom and without their Warrant he would not deliver it of which both Matthew Paris and Matthew of Westminster From the continual use of this Seal in Parliament it is the Law and Custom of the Kingdom that the Lord Keeper shall have place in Parliament still to be there with the Sael although he be often no Peer and have no Vote but for making and Sealing of Charters Pattents Commissions and Writs framed by Parliament For although the Register made or continued by Parliament be now so full that there be little need yet the framing of New Writs was a great work of Old Parliaments as appeareth in the Books and Statutes as in that of Westminster the 2d de Casu consimili And as if the Parliament had made no Laws at all but onely New Writs the Old Modus brancheth out all the Laws of Parliament into Originals Iudicials and Executives which all know to he the Division of Writs Those especially de Cursu drawn by the Cursitors for Brevia Magistralia were let to be framed by the Masters of Chancery as appeareth at large in Bracton and Fleta and in the Oath of the Six Clerks or other Clerks of Chancery in Ed. 3 with that of Ed. 1. de casu continili in which Statute it is asol provided that if the Masters could not agree in framing such a new Writ they might if they saw cause respit the Parties till the next Parliament that so it might be formed by Advice of all the great Lawyers of the Kingdom Yet besides this of making and sealing of Writs there was another work and great use of the Masters of Chancery
in Parliament Which was the Receiving of Petitions As the Rolls of most times witness It being the old Mode and others accounted it somewhat against Reason that Petitions should be taken and brought into the House by those that were to debate and determine them and so might at pleasure keep them Out or too hastily might press them in Whereas they were to be filled up in course and so to be debated as they were received which was therefore entrusted to the care of known and sworn Officers of the Kingdom Although of late their work in Parliament be so strangely degenerate from that it was of old when also beside Receivers there were some appointed for Tryers of Petitions who as it seemeth were to enquire of matter of Fact expressed in the Petition that it might be cleared and rightly stated before it came to be debated in full Parliament I do not deny but these Triers of Petitions were most frequently some of the Bishops and other Barons But by this I am not convinced that the Lords had by Right and Legislative Power or were the sole Determinors of all Petitions as some would infer or that they were the sole Judges except also the Petty Jury that are Tryers of Fact shall be esteemed the sole Judges of Matters of Law And yet I shall not deny but Petitions concerning abuses or errors in Judicature were often deermined by the Lords as the great Judges but of error in the King's Bench as Judges above the King as was shewed before or from the Exchequer In Queen Ellzabeths Time for the seldom meeting or great Affairs of Parliament the Writs of Error from the King's Bench were by special Act of Parliament to be brought before the Judges of the Common Pleas and Barons of the Exchequer and by them to be determined But with these express Limitations as the Law shall require other than for Errors to be assigned or found for or concerning the Iurisdiction of the said Court of Kings Bench or for want of form in any Writ Process Verdict c. and that after all the Records and all concerning them be remanded to the King's Bench as well for execution as otherwise as shall appertain and with this express Proviso That any Party agrieved by such Iudgment in the Exchequer shall and may sue in Parliament for a further and due Examination By which I do not see such Parties agreed were absolutely tied to Petition the Lords onely although it were onely in a Case judicial Yet I deny not but in Edward the 3d. there was a Committee made of a Bishop two Earls and two Barons to hear and determine all Petitions complaining of Delays or Grievances in Courts of Justice But with great Limitations so that they must send for the Records and Judges which were to to be present and be heard and then by good advice of the Chancellor Treasurer Judges and other of the Council to make an Accord yet so that all be remanded to the Judges before whom the Cause did first depend who were then to proceed to Judgment according to the Accord of the said Committee And in Case it seemed to them to be such as might not well be determined but in full Parliament that then the said Records or Tenors should be brought by the said Commitee to the next Parliament it being the Common Law of the Kingdom and so expressed in all the old Books that all new unwonted difficult matters of consequence should still be brought and submitted to the Judgment of full Parliament so that all our Iudges did and ought to respit such Causes till the next Parliament of which there be almost innumerable Precedents in all the Rolls Nay in Richard the 2d there was a Committee of Lords and Commons appointed to hear and determine all Petitions present in that Parliament But afterwards it was adjudged and declared That such a Commission ought not to be given committing or betraying the High Power of Parliament into a few private hands as we may learn out of Henry the 4th beside other times Yet the Modi of Parliament admit that some extraordinary Cases where the Estates could not agree or the greater part of the Knights Proctors Citizens c. There by consent of the whole Parliament the Matter might be compromised to 25. chosen out of all Degrees and to fewer till at length it might come to 3. who might determine the Case except that being written it were corrected by Assent of Parliament and not otherwise And this seemeth to be the Law of Nature and right Reason That Delegates should not delegate others which was one reason why the Commons never made Pracies as the Lords did Nor might any Committee so determine but there might be Appeal from it to the Parliament Nor doth the Parliament it Self conclude so but that there may be Appeal from its self to its self even to its Iustice if it erre or at least to its mercy by some motion or Petition In one Parliament of Richard the 2d it was Enacted that no man condemned by Parliament should move for Pardon but another Parliament 10 years after did annul this Branch as unjust unreasonable and against the Law and Custom of Parliament For from this which is the highest here there still lieth Appeal from its Self to its Self For which also by the Laws and Customs of the Kingdom there were to be frequent Parliaments that so the errors or omissions of one being still human and therefore errable might be corrected and amended in another By express Statutes of Edw. the 3d. we are to have Parliaments once every year and oftner if need be They were of Old three or four times a year as may be found in all the Old Historians speaking of the great Feats in the Militia in King Alfred's Time they were to be twice a year and that at London as the Mirror affirmeth which we compared with the Laws of the Confessor And I speak also of King Edgars and Canutes Laws for the Celeberrimus Conventus ex qualibet Satrapta which the Great Iudg applieth to the Parliament Eternity it self would be a Burthen unto him that is not pleased with his Being so would Omnipotence to him that is unhappy in his acting It was therefore goodness in God to limit man as well in Doing as in Being It was also the Wisdom of our Ancestors to bound and limit out the Being Acting and continuing not onely of other Judges but also of Parliaments Yet the Old Modi of Parliament agree in this That a Parliament should not be Dissolved till all Petitions were discussed and answered and that after all there should be Proclamation made in some open place whether any had a Petition or just Address to the Parliament and if none replied then it was to be Dissolved I need not shew the Care of our Ancestors or former Parliaments for most strict observation of their own good Orders and Customs of Parliament which are such so just and reasonable that they well deserve a peculiar Discourse by themselves and suppose it not impossible to clear them more by the practice and consent of most Ages in this Kingdom which might also be useful for the Times to come And although it might be possible to find some of their old custome fit to be changed yet my hope is they will retain and observe such Rules of right Reason good Orders and Customs as may still make this an Happy Nation and that they will be mindful of their great Trust for which they are accountable And however it may be in this World yet they also must be judged at his coming who shall bring every Work into Iudgment with every secret Thing whether it be good or whether it be evil And I am not ashamed both to long and pray for his coming who is King of Kings and Lord of Lords The Prince of Salem that is Peace as well as King of Righteousness Melchizedek the Lamb upon the white Thone All the Creation groaneth and the Spirit and the Bride saith come Lord Iesus come quickly FINIS
I am now grown wiser and do now see I may absolve my self from that which I would not have taken but by force or fraud But can the World this vain and frail and foolish World command controll and over-awe my Soul to take an Oath the Oath of God to what I think unjust It may be so for I am Man and frail with those that are the weakest for He knoweth my foolishness but it should not be and when it is I must be very tender lest I adde more Sin to Sin as bad or worse to that which is too Bad already For by breaking such an Oath I may do worse much worse than first I did in making it except I Swore to sin and then I may not keep my Oath And I believe the Iews might not have pleaded Force or over-awing Arguments in Swearing Homage to the King of Babylon and yet 't is known how God did charge and chasten that said Perjury nor is it altogether inconsiderable that good Lot's or at least the men of Sodom's freeing themselves from Chedorlaomer is stiled by God himself plain downright Rebellion Yet there was another King of Sodom and Chederlaomer seemeth but a kind of Tyrant that had but little Right but Conquest and his Might The Catholicks may seem too free in dispensing with Oaths to Protestant Kings but some there are with them Sacred Persons And because I now dispute ad Hominem I shall touch on that in which we know them most Religious Their solemn Obligation to the Pope which yet is such they will not deny as doth not secure or free him from being Iudged or Coerced in cases of Distraction Natural in Raving or Moral in Raging so that danger be apparent to those about him or in some Spiritual Frenzie of notorious Heresie Convict the Chair in Conclave not the Person is exempt or much suspected while himself refuseth Legal Tryal by a Council or the like The Case is argued in Occhams Dialogues with others Our Oath of Fealty comes next upon the Test although I might interpose as a Parallel to the Pope the Iewish High Priest a very Sacred Person and the Lords Anointed also but yet such as must still submit to the Sentence of the Great Sanhedrin nay and that for his Life also if they so adjudged him For which of the Sanhedrins Power over the Jewish King in Criminals and in War except only what God had commanded against Amaleck or the seven Nations I might cite several clear passages from the Talmud and those that expound it long before Cochius or Sanhedrin or Schickards Ius Regium Our Land seemeth to Mourn because of Oaths but I must only touch the civil Part or what is Legal and our Law seemeth Deficient in this of Oaths for there is scarcely any Law since the Star Chamber to punish Perjury but only where it is before a Court of Justice and there also the Punishment of Witnesses is very light and exceeding short of Attaint on Jurors by the Common Law Our Customs seem to overgoe our Laws in much of Oaths They were but Attestations though most Solemn in the Name and Presence of God As the Lord doth Live But they are now brought to Imprecations or a kind of Curse So help me God and the Contents of this good Book Yet so it was of old at Combat on Appeal the Appellè did first devote himself Again some force a Kissing of a Book the Law requireth but a Sight and Touch. For ought I find the Saxon Jurors were Sacra Tenentes In the first Norman times it was Sacris Tactis and in later writs Evangelijs Tactis Nay the Priests hand was upon his Breast in Matthew Paris not upon the Book and the Villain seemeth forbidden to touch the Book The Statute saith he shall hold his Hands over it but the Freeman upon it and from this Touch with the Body such an Oath was called Corporal The Iews and eldest Christians in their Swearing Blessing Praying lifted up the Hand and sometimes Bowed the Head or Knee for In his Name shall all Knees bow seemeth but Parallel to that of the Psalmist In thy Name will I lift up my Hand and the Grecian or Trojan Princes lifted up their Scepters in Swearing but others held Earth and Water in Allusion perhaps to the sacred Styx Most if not all publick Officers were tyed to their Dutyes by some Oaths but they were made by Parliament in all Ages This being a Pillar in our Laws that none can make alter or impose an Oath without an Act of Parliament or Custom by the Common Law 'T is strange how much in all we degenerate from our good Ancestors So that with us to break ones Oath even in the greatest Office is but a kind of Petty Aggravation as they call it rather than a Crime because such Oaths be now accounted but meer Forms or Ceremonious Shaddows But it was not so ab initio and among other Precedents I find the old Mirrour speaking of a Chancellour of England charged with Perjury for taking a small Summe of Money half a Mark for Sealing of a Writ which was against his Oath being neither to Deny Delay or Sell Justice or Remedial Writs Yet Six Pence was allowed to the King for Sealing of a Writ How great a Crime they did account such Perjury I need not say to Lawyers or to any that have read the Saxon Parliaments But of all our Oaths those seemed to be most content to be counted Formal That they were imposed on meer Children of a dozen Years old how many such we have or had in great Schools or Universities may be known and felt too much I fear And the Oath of Allegiance was twelve Years old and so pressed at the Leets or Turns but did they mean we should Observe it but as Children not as Men or Christians It is true the Saxons also had a twelve-Year-old Oath but against Theft and how the Laws of Henry the first did Annul the Oaths of Children was observed and the fifty ninth Chapter of those Laws forbiddeth any to Plead or to be Pleaded in Iudicio till the Age of fifteen It was also a Maxim in our Law Books that Minors could not Essoyn because they could not Swear and that Homage might be done in Nonage but not Fealty For although Homage was the more Honourable done upon the Knee yet Fealty was the more Sacred being ever done by Oath and from hence is the usual Phrase in all Lawyers and Historians to Do Homage but to Swear Fealty Must our Allegiance only run before our Reason or Discretion which yet was our great Fealty for it differed little from Homage with the Oath of Fealty to Mean Lords but in the Salvo which I touched before and must again being one good help to explain our Allegiance I shall acknowledge that Allegiance ought to have been kept by all Subjects although they never took that Oath which it may be many did not especially
Iews in the Laws of the Confessor Some Kingdoms are in Fee to others and must do Homage Swearing Fealty So Scotland unto England so was also our English King but not the Crown or State which hath oft in Parliament been adjudged and declared Imperial Independent when himself did Homage unto France And yet I do not find our English King did ever much Scruple at his waging War with all France and the French King also but did often fight in Person against his Person and he might do so by Law if the King of France did Injure and Oppress him against Law That I say nothing of the Personal Challenges by Rich. the first Edw. the third and Rich. the second Or of King Iohns being cited or Condemned by France for Murther in that Kingdom This might yet be enlarged and further cleared from the good Laws of K. Henry the first which are so strict for Allegiance and due Fealty to every Lord that they seem almost to forget our old English Clemency and yet they speak enough of a Vassals impleading c. his Lord for which divers Chapters from the 40 th to the end are very considerable And the 55 th Chapter limiteth all Homage and Fealty per honestum utile that which is honest and profitable and as Honestum there respecteth God and the common Faith Deum fidem Catholicam so must Utile respect the Kingdom and the Common good it being usual for those times to express the Common Good by such a Phrase of Utile So the Laws of St. Edward for Foromotes Heretokes ad Honorem Coronae ad Utilitatem Regni So King Williams Additions were granted and Confirmed ad utilitatem Anglorum So the Parliament at Merton was to treat de communi utilitate Regni which may be considered in the Writs of those times and the great Charters granted à tout la commune Dengleterre as Articuli super Chartas And the first of Westminster pur le common profit de st esglise de Realm and the Confirmations of the Charters in Edw. the first forbidding all Impositions c. but by Common assent of all the Realm pur le common Profit de ceo which must be determined by Commune Assent and no otherwise So Ethelreds Law Efferatur Concilium quod Populo Utilissimum And Canutes quae ad Reipublicae Utilitatem Commune commodum which there may Paraphrase Regalitas of which before And however the late Oaths of Allegiance are if we consider the old Oaths both in the Saxon and first Norman times we shall find them to respect the Kingdom and its common Good and Profit as well as the Kings Prerogative or private Profit to the Crown By Bracton with others we are led to the Laws of the Confessor for our great Allegiance But in those Laws the Oath is to defend the Kingdom with the King and that by such an Oath we should all be sicut conjurati Fratres ad defendendum Regnum contra Alienigenas contra Inimicos unâ cum Domino Rege c. That it was so also in the Brittish times of K. Arthur whose Parliaments we may assert by more than that in Caius of Cambridge we find in these very Laws and that by Vertue of this Oath King Arthur raised his Subjects and expelled the Saracens and Enemies a Regno from the Kingdom And the same Laws tell us that the same Oath was renewed and Confirmed by K. Edgar whose Laws are severe enough for Treason but against all Lords as well as the King and it is Punished as Theof And the Laws of Canute confirming those of Edgar require Fealty conjoyned with Duty and Virtue and again with Common Justice Iusjurandum datamque fidem Religiosissimè servato injustitiam pro sua quisque virili Parte ditionis nostrae finibus omnem arceto as Lambard translateth the Saxon of those Laws and in another place of them The Leet Oath of Fealty Iure Iurando fidem det omni se in posterum aetate tum furti tum furti Societate Conscientia temperaturum And to this doth King Edwards Oath of Allegiance in Britton seem to allude que ilz nous serrount Feaul Leaux que ilz ne serrount Felons ne a felons assentaunts yet I do not deny but Theof in this Oath might include Treason with other Felony as vvas touched before but however it is as well for the Kingdom or the Common good as for the Kings Prerogative or private Honour o◠the Crown So also the first Norman Laws called the Conquerors require an Oath of Allegiance but for the Publick Peace and common Justice to the Kingdoms good as much as to the Crown for so the words run fint Fratres conjurati ad Regnum N. contra inimicos defendendum Pacem dignitatem N. Coronae N. ad Iudicium rectum Iustitiam constanter modis omnibus pro posse suo as K. Canutes Laws before sine Dolo sine dilatione faciendam This is now continued also through our great Charter and all the Confirmations of K. Edwards and K. Williams Additions in utilitatem Anglorum vvhich may be considered as a good Comment on the usual vvords in Indictments against the Peace and Crown and Dignity vvhich by those Ancient Lavvs vvas to be joyned vvith the publick common good and Justice of the Kingdom So that Allegiance vvas ad Legem to the Laws the Kingdom and the Kingdoms good or Profit together vvith the King And in all the Lavv Books vve may read of Treason done and committed against the Kingdom as against the King So in Hengham Parva cap. 3. If any raise War against the King or against the Kingdom ubi quis movet Guerram contra Regem vel Regnum And his Commentator referreth to several Cases in Edward the third Henry the fourth with Plowden and others which would be considered Nay there are many old Authors and Masters of Law that expresly declare it to be as Real Treason to seduce the King or the Kingdom or an Army for the Kingdoms Safety as to Act against the Kings Life So in Hengham Magna cap. 2. Treason is branched thus de Nece vel Seditione Personae Domini Regis vel Regni vel Exercitus And the very same Division of Treason is in Glanvil both in his first Book and second Chap. and the first Chapter of his 14 th Book To which also may be added Bracton Lib. 3. cap. 3. de Coronâ and Fleta lib. 1. cap. 21. vel ad seductionem ejus vel exercitus sui and Britton cap. 22. disheritur de N. Royalme ou detrahir N Hoste of which also Stanfords Pleas of the Crown lib. 1. cap. 2. and others that Wrote since the Twenty fifth of Edward the third which may seem to limit or to lessen high Treason but not to annul Treason by the Common Law And in Cases of such Treason they declare that although there be no Accuser but only Suspicion sed fama
solummodo publica so Glanvil but in Bracton Fama apud graves bonos and in Fleta apud bonos graves infamia yet must the Party be Attached vel per Carceris Inclusionem vel per Plegios idoneos so it was in Glanvils time for all but Homicide but in Fleta's Diffamatus vel Accusatus attachiabitur per Corpus Captus Remanebit donec se indè Legitimè acquietaverit That is in him till he have Legally cleared himself from all Seducement of the King Kingdom or Kingdoms Army Omnemque seductionem Regis Regni vel sui exercitus quicquid sit contra Pacem suam which Glanvil expresseth thus Machinatum fuisse vel aliquid fecisse in mortem Regis vel seditionem Regni vel Exercitus vel Consensisse vel Consilium dedisse vel Authoritatem praestitisse In such Cases also they debate who should be Iudge and for this they all agree in that fundamental Principle of right Reason and Nature that Parties may never be Iudges in their own Causes for which besides all others the Mirror is large and clear among all Exceptions to the Iudges Person if he have no Commission or refuse to shew it as he ought or be Party c. of which also Britton in Appeals cap. 22. fol. 41. And for this reason Bracton and Fleta with others agree that in such Causes neither the King who might so they say be Iudex Actor nor the Kings Commissioners should Judge or determine But Curia Pares except only when the Case is not of Life but finable for in such the Kings Commissioners may determine sine Paribus But who are these Peers and what is this Court One of Bractons first Maxims in his second Chap. is that all obscure difficult and new Judgments ought to be suspended Usque ad magnam Curiam ibi per Consilium Curiae terminentur Fleta is somewhat clearer in his second Book and second Chap. Habet enim Rex curiam suam in Concilio suo in Parliamentis suis presentibus Prelatis Com. Baron Proceribus aliis viris Peritis ubi terminatae sunt Dubitationes Iudiciorum Novis injuriis emersis Nova constituuntur Remedia unicuique Iustitia prout meruit Retribuetur Ibidem Unicuique What to every Man in all the Kingdom or how far and how high may this extend or reach Shall we propound this Doubt to the Antient Parliaments who were most like to know their Power and Priviledge The Law was clear enough before but some were pleased not to think it so and therefore in the Statutes of Marlbridge as old as Henry the third in the first place of all it was agreed and enacted That all men Living of this Kingdom as vvell high as lovv tam Majores quam Minores must and ought submit to Judgment Iustitiam habeant Recipiant in Curia Domini Regis That this Expression may go lovver than the Court of Parliament I can not deny nor vvill others I suppose deny but that it may and must be yielded to the highest Court of all One of the Clauses of the Kings duty expressed in the Saxon Lavvs is to do all things rightly by the Judgment of his great Court per Iudicium Procerum Regni and again by that great Council to maintain or do Justice and Judgment Iudicium Rectum Facere Iustitiam tenere per Concilium Procerum Regni All vvhich and much more in those Lavvs must be solemnly Svvorn by the King before the Kingdom and the Clergy in propria persona inspectis tactis Sacrosanctis Evangeliis c. coram Regno Sacerdote Clero This may be considered antequam ab Archiepiscopis Episcopis Regni Coronetur Even before he may he Crowned or should require his Subjects Homage Insomuch that vvhen the Subjects have tendered Homage as some Lords did to King Henry the fifth before the King had done his Homage and Sworn his Fealty to the State and Laws It hath been observed by Historians as some kind of Comet that I say not a Prodigy in State Politicks And besides all the forms of Coronation found in Hoveden Walsingham and other Historians secundum antiqua Statuta as Matthew Paris speaketh it is clear enough in the Records and Rolls of Richard the second before others how the King first did take that Solemn Oath and then the Archbishop went to every side of the Scaffold relating to the Kingdom how the King was Svvorn and then he asked them si ipsi consentire vellent if they would now give consent to take him for their King and Liege Lord and if so they came and did him Homage If they would consent What was it at their Choyce and were our English Kings Elective plain Elective sure it would be duely weighed and I confess some things have made me very much suspect they were Elective And the rather also by considering the great Care and Importunity of some Kings to procure the Crown to be setled by Parliament upon their Heirs Which might intimate that indeed it was not their Inheritance at Common Law for it was seldom seen I suppose that English Men have taken much Pains to obtain an Act of Parliament to settle their Inheritance on their own Heirs except they were Illegitimate or Aliens And upon search I cannot find the old Oaths of Allegiance did relate to the Kings Heirs or Successors either in the Saxon or first Norman times although we find the Oath in old Laws long before Edw. the second and in old Lawyers Bracton Britton Fleta with the Mirror punctual in the Oath of Allegiance but not a Syllable of Heirs or Successors that I can find Yet in the times of Henry the first and Henry the second there was some special Acts of Parliament for setling the Crown on Maud the Emperess or her Issue and King Henry's Son was Crowned in his Fathers Reign and of that time the Salvo in Glanvil Regi Haeredibus which I find not in any other old Lawyer and I believe it not usual till the great Quarrels of York and Lancaster it may be much Later But all such Acts for tying the Crown to such or such a Family do not evince a former Right of Succession any more than the House of Austria doth prove the Empire not to be Elective though it now seem as entailed on that Family I say not how often it hath been adjudged that Affirmative Statutes do not annul the Common Law and that one may Prescribe against a Statute Negative but in Affirmance of the Common Law for which the Comments on Littletons Burgage So that if an English King was Elective by the Common Law the Kingdom might prescribe against late Statutes which might erre much more than they could oblige all future Parliaments but they might still be free and most of all in what was due before by Common Law Let us discuss it then and see what Antient Lawyers and Historians do record about our Kings
of Almain The Learned Author of the late Peleg among divers other Brittish words hath found a new Etymology for the Name of Britain which notwithstanding Brith for Colour or Painting and Bretas in some Greek Poets for a Picture or a Painted Brat he would have to be called by the Phaenicians Berat Anac or the Field of Tin and Lead To which I may add the Northern Sea called of old the Phronean Ocean or the Sea of Saturn whom they feigned to lye asleep in the Bottom of that Sea bound by Iupiter in a Golden Pumice of which Plutarch Eusebius Ptolomy and divers others and of this the Author of the Veyl or Mask of Heaven Of which I must speak but little only this for a Clavis The Scene is the little World or Isle of Brittain Thule some appendant to that Crown or Scotland whose troubles of 1639. are shadowed in the night work called Scotos or Darkness Saturn the Scottish Genius and Mercury the Clergy but in special the late Arch-Bishop of Canterbury Iupiter the Son of Saturn or a great Scottish Lord lately on the Scene that was first sent to reconcile Saturn but he turned Retrograde Mars the Genius of War and in special the great General against Saturn or the Lord Lieutenant of Ireland Venus seemeth to be Queen Mother of France then alive in England Phoebus and Phoebe need no gloss Imperii fata plain enough to those that know that Dialect But Phoebe might have there seen before this Parliament that Peace had been her Work and should have been her Happiness nor is it yet too late or wholly past Habent etiam sua fata Reginae and there is a silent Patience which may Conquer more than all the World can get by Force Who will unmask the Chymical Part which the Poets also Veiled in their Fables of Saturn bound by Iupiter in Golden Pumice and it may be possible that future Ages may be brought to see or know the Treasures in our Chronian Ocean and the meaning of that Riddle In the mean time he that can improve the Sympathy of Mars and Venus or remove the Antipathy of Saturn and Mercury or can bind Saturn by Iupiter and by the Mediation of Phoebe can reconcile all to Phoebus or can live on Herbs may have little need I hope to flatter any But to return to our British Ancestors How Cordiel and Guintoline were Created populi Iussu Archigal Ennianus or others Deposed is observed by divers I shall only add that Proceres and Magnates here are rendred Estates People or Commons in Grafton and Chaucer or the old Fructus by Iulian of St. Albans Molmutius first did wear a Crown of Gold they say he did deserve it for to him we owe divers of our Common Law Principles nay and that for more than is found in Monmouth as I touched before And upon him the Patrons of Succession build a fixed Monarchy which was not such it seems before nor since if we may believe those we can hardly disprove that from this time begin the petty Princes plurimis Regulis supremam Mandandi Iudicandi Authoritatem And themselves divide the Crown between his two Sons Brennus the British Thunderbolt to Rome and some do carry him as Lightning to Delphos while his Brother Belin did return and dye in peace and first of British Kings was burnt to Ashes yet he lived here in Bilingsgate and Key besides his famous Ways or Streets his own and Fathers Laws which with the Mertian came to us through Alfred But we need not go to his Daughter Cambra for the first Affinity between the Brittans and Sicambrian Francks or Gaulish Germans Come we now to Cesar's time Lud is alive in Ludgate London as before he did amend the Laws but by a Common-Council And such Council did reject his Sons and Chose Cassivelane as Caesar doth agree with British Authors He did summon one that slew his Kinsman to appear and submit himself to Judgment Sententiam quam proceres Dictarent subire But the famous Androgeus protected him in London being then the Governour pleading the Custom and priviledge of that City which had also then a Court to hear and determine all the Pleas of Citizens or Quicquid aliquis in Homine suos clamaret and that also by Ancient Prescription ex Veterum traditione Which from Monmouth Virrunnius Ponticus and others may be compared with the Laws of the Confessor for Troinovant or London and its weekly Hustings and Ardua Compota and Ambigua placita Coronae and for the Courts of the whole Kingdom there whence it is called Caput Regni Legum Which may also be compared with that of the Mirror for Parliaments to be in London by ancient Laws which is here expressed Iuxta veteres Consuetudines bonorum Patrum Predecessorum omnium Principum Procerum Sapientum seniorum Regni very full and clear Parliaments of all Estates That which is added of those Courts to sit and hold wherever the King was is British also as well as Saxon. So the Laws of Howel Dha the Good in the Chronicles of Wales but larger in Sir Henry Spelman Ubicunque Sacerdos Destein Iudex ibi Dignitas Curiae Aula Regia licet Rex absens sit and this is one Reason why the King was never Nonsuit because he was supposed present in all Courts and yet his Atturneys Ulterius non vult had the effect of a Nonsuit But for London and its Antiquity before Rome Stephanides a Monk as old as K. Henry the first now in Print may be compared with Tacitus Ammianus Marcelinus nay with Caesar also for the Trinobantes although some think he never saw this City But the Charters of K. William and Hen. the first are in Print so also of Richard the first and K. Iohn in Hoveden and others which yet must not perswade us that Sheriffs were then first Created here For Counts or Viscounts are as old as Counties and the Brittish Authors speak of Dukes of Troynovant such was Androgeus and pro Consulibus vice-comites in Fitz-Stephen and Willielm de Einford vice-comes de London Ioannes Subvicecomes in the Book of Ramsey Wallbrook Case in Hen. the first that I may say nothing of William the Chamberlain de Londonia of whom before in Hen. 1. which may be premised to the Famous Quo Warranto brought in Edward the Second But to return to our British Kings I cannot deny but some Authors do Record the Crown as by Act of Parliament settled on the Heirs of Cassivelane but themselves also can shew us the very next King brought in by Election not from Cassivelane and that both of Lords and Commons too if we may believe Chaucer or the old Fructus Temporum This Theomantius many of their names are Greek was Duke of Cornwall when he was Elected King He doth yet live in a Famous Son great Arviragus whom the Roman Poet and so many others praise he did amend the Laws
Parliamenti sedebunt nullus stabit sed quando loquitur ut omnes audiantur à Paribus And again Nullus solus potest nec debet recedere à Parliamento sine Licentia Regis omnium Parium Parliamenti hoc in pleno Parliamento Ità quod inde fiat mentio in Rotulis Parliamenti It may be possible That Bracton and Fleta with others may use the Phrase Pares in such a sence when they say That the King or his Commissioners should not judge and determine of Treason but Pares Which may be added to the 25 th of Edw. 3. reserving Treason to Parliament where of Old it seemeth only determinable so that The Mirror would not have it Endicted but by Accusation and in full Parliament as in King Edmund's Time c. Cap. 2. Sect. 11. and in Edw. the 3 d it was enacted That Offences of Peers and great Officers and those who sued against the Laws should be tryed in Parliament And although now the Phrase be given to all the Lords of Parliament yet it was most or only proper to the Earls whom by Law and custom the King styleth Consanguineos and he might style them his Peers or Companions as in Latine Comites So Bracton Comites dicuntur quasi Socii Regis qui habet Socium habet Magistrum and in another place A Societate Reges enim tales sibi Associant ad consulendum regendum Populum Dei and the like is in Fleta Comites à Comitiva dicuntur qui cum viderint Regem sine Freno Frenum sibi apponere tenentur c. which is also in Bracton The Mirror is yet clearer although the King had no Equals yet because himself or his Commissars might not be Judge it was provided by Law that he should have Companions to hear and determine all his Torts c Aux Parliaments and those Companions were called Countees Earls from the Latine Comites So also Sarisberiensis cited before in Hen. 2. Comites à Societatis participatione dici quisquis ignorat ignarus est literarum c. some will have them Comites Socii in Fisca because of old some Earls had a third part of profits accrewing by Pleas and Forfeitures in their Counties as the Laws of the Confessor and Mr. Selden in his Comes but he will also grant their name à Comitiva potestate rather than from such Communion of profits That the old Sheriffs also who were Vice-Comites did come to Parliament appeareth in the Ancient Writs and Histories and yet the Barons seem to be the Kingdoms Iudges and the present Earls may seem to sit in Parliament but onely as Barons who are now all Peers and Lords and Parliament But although the Lords were the great Iudges of the Kingdom and of all Members thereof yet it is well known that in full Parliament as old as Edw. 3. they did not only acknowledge but protest that they were not to Iudge the Commons in Cases of Treason and Felony being not their Peers How it was in Rich. the Second may be seen at large in the Rolls and Records now printed in Edward the Second the Commons proceeded by the Judgment of the Lords for which also the Fructus temporum cited before may be added to all in the Road. Appeals and Writs of Error were from the King to the Lords in Ecclesiasticals that touched the King they were to the Spiritual Prelates Abbots and Priors of the Upper House by Act of Parliament in 24 Hen. 8. till which it may be Temporal Lords had also Cognizance of such as well as Temporals And Writs of Error in the Parliament were Judged by the Lords for they came from the Kings Court his Bench or his Exchequer and if Errors had been in the Common Pleas or below it they should not be brought into Parliament but to the Kings-Bench and from the Kings-Bench as from the King not otherwise they came to the Lords and although there was a formal Petition for removing the Record from the King it was but of Course and the King could not deny it Which we found granted by all the old Lawyers and Historians as I shewed before and by the grand Master and Patron of Law King Edw. 1. in Britton because none may Judge in his own Cause Therefore in Causes where our self shall be Party we do consent que N. Court soit judg Sicome Counts Barons in Temps de Parliament In the Laws of Hen. 1. one of the Chapters beginneth thus Iudices sunt Barones Comitatus qui liberas in eis terras habent for in those times Barons were by Tenure only not by Patent that I know till Beauchamp of Holt in Rich. 2. nor by Writ that I can find till the Barons Wars but K. Johns Charter is to Summon Comites Barones Regni majores sigillatim per literas N. But all that hold in Capitae by general Summons forty days before the Parliament and that Negotium procedat ad diem assignatum secundum consilium eorum qui presentes fuerint quamvis non omnes submoniti venerint and the Summons of Delinquents or Suitors in Parliament was to appear and abide the Judgment of the Court not of the King but of his Court for the King is Father and not Judge of his People in his proper Person as was shewed before and all the Books agree that he must Commit his Jurisdiction unto Judges in the Courts of Justice and when he might assume great Offices into his own Hands by Parliament in Edw. the third all Judges were expresly excepted and the Judges Oaths and several Acts of Parliament require them to proceed according to the Law notwithstanding the Kings Command or Seal against it and the Register affordeth a Writ to Supersede or Revoke any such Seal from the King himself to any of the Judges And the Lord Chief Justices as the Lord Chancellor and Treasurer were Chosen by the Kingdom as we found before in the time of Hen. 3. how much more then should the Lords of Parliament be made by Parliament for else they be the Kings Commissioners So the Roman saith our German Fathers chose their Lords in Common Council to be Judges in iisdem Conciliis Eliguntur Principes qui Jura reddunt De Minoribus consultant Principes de Majoribus Omnes And Caesar also observeth that their Princes or Lords were their great Judges sed Principes Regionem atque Pagorum inter suos jus dicunt Controversiasque minuunt Yet Tacitus will also tell us that with those Princes they did joyn Commons Centeni ex Plebe Comites which were perhaps the Fathers of our County Hundreds And in K. Williams Edition of the Confessor's Laws when he inclined so much to them of Norwey Universi Compatriotae Regni qui Leges Edixerant came and besought him not to change their Old Laws and Customs of their Ancestors because they could not judge from Laws they understood not quia durum valde foret sibi suscipere
Leges ignotas Judicare de eis quas Nesciebant How it was in Parliament while there were only Barons by Tenure would be more enquired But of later times Commons have adjudged Commons and have joyned with the Lords in adjudging Lords of which there are divers Cases cited in the Fourth Part of Institutes Cap. 1. pag. 23. It may be considered that many Kingdoms and Common-wealths that were not Kingdoms in all Ages did consist of Three Estates as of Three Principles in Nature or Bodies Natural which might occasion the Phrase of Tribe in many other besides the Romans who in Three Estates were not so Ancient as the Grecians or Aegyptians that I speak not of the Gauls Britans or the Eastern Nations And if any would observe it might be possible to find the Prophets hinting a Trinity in divers Kingdoms or Estates and that not only for moulding but for overthrowing them Besides the Three Captivities or Three overturnings of the Iewish State and the Three blows of the Goat on the Ram in Daniel as alluding to the Three great Battles which did break the Persian Empire And why may not the Sacred Trinity be shadowed out in Bodies Politick as well as in Natural And if so our Three Estates may be branched as our Writs into Original Iudicial and Executive as shadows of the Being Wisdom and Activity Divine If I may not grant yet I cannot deny Original Power to the Commons Iudicial to the Lords Executive to the King as the Spirit to the Body or if you will the Head or Fountain of Sense and Motion But he must see by two Eyes and hear by two Ears as I touched before yet his very pardoning although it be by Law much limited doth seem to speak his Power Executive And so his Writs do speak aright Because my Courts have so and so judged Therefore I do so and so command the Judgment shall be executed And if any will assert the Militia to this Power Executive I shall also grant it to the King So that it may be alwayes under the Power Original and Judicial This might belong to the Lords and that to the Commons And the plain truth is I do not find more Arguments to prove the Judicial Power to belong to the Lords than I do for rhe Legislative in the Commons And as it seemeth to be above so below also it may be much disputed That the Legislative Judicial and Executive power should be in distinct Subjects by the Law of Nature For if Law-makers be Judges of those that break their Laws they seem to Judge in their own Causes which our Law and Nature it self so much avoideth and abhorreth So it seemeth also to forbid both the Law-maker and Iudge to execute And by express Act of Parliament it is provided That Sheriffs be not Justices where they be Sheriffs But if Execution be alwayes consonant to Judgment and This to the Law there is still most sweet Harmony and as I may say a Sacred Unity in Trinity represented That the Commons should have most Right to the Power Original or Legislative in Nature I shall leave to be disputed by others I shall only touch some few Particulars which have made me sometimes to suspect that by our Laws and Model of this Kingdom it both was and should be so How the Roman Historian found the Judicial power given to the Lords by our Old Ancestors I did observe before he is as plain for the Legislative in the Commons Nay to the Lords themselves he saith in Judging was adjoyned a Committee of Commons both for Counsel and Authority Ex plebe Comites consilium simul Authoritas And again he sheweth how the Lords did sit in Council about the less Affairs but of greater all both Lords and Commons So also that those things which the Commons did determine Quorum Arbitrium penes Plebem apud Principes pertractentur they should be debated with the Lords for their Advice but not their Legislative Votes And the Mirror a good Comment on Tacitus in this sheweth how our Lords were raised out of the Commons and giveth them a power Judicial but where is their Ligislative Nay the Modus of Parliament will not only tell us that the Commons have better and stronger Votes than the Lords but that there may be a Parliament without the Lords as well as Prelates For there was a time in which there was neither Bishop nor Earl nec Baro so the Irish Modus and yet there were Parliaments without them but never without the Commons So that if the Commons be not summoned or for Cause Reasonable cannot or will not come for Specialties in which they blame the King Parliamentum tenebitur pro Nullo quamvis omnes Alii status plenarie ibidem interfuerint And the Kings Oath is to confirm the Just Laws which the Commons not the Lords but Commons shall Elect or Choose quas Vulgus Elegerit So in Latine and in French of Edw. 2. and Edw. 3. Les quiels la Communante aur ' eslu And in English of Hen. 8. and other Times which the Commons of the Realm shall choose And if we look into the Old Writs of Summons we shall find the Commons called ad consentiendum faciendum and the Old Writ addeth quod quilibet omnes de Comitatu facerent vel faceret Ii personaliter interessent As it is in the Modus of Parliament with sufficient intimation that without the Commons nothing could be done which the late Writs express thus Ita quod dicta Negotia Infecta non remaneant pro defectu potestatis c. But the Lords are called de quibusdam arduis tractaturi consilium Impensuri only as Counsellors not as Law-makers For the very same words are in the Writs for the Judges and others coming to Parliament although they do not Vote in making Laws This may also shew us how the Lords themselves did Elect the Knights of Shires and by Statute of Rich. 2. are to contribute to the charges of the County Knights who were to sit and Vote in Parliament as Law-makers for the whole County whereas the Lords were there but as Judges and the Kings Counsellors And is it probable they should retain to their own Persons that for which they delegated others who were there to do quod quilibet omnes facerent personaliter even all that all the Lords themselves should do as Freeholders not as Lords or the Kings Patentees who might so be his Councellors or Iudges rather than Law-makers this was more left it seems to the Commons who for this and other Reasons should not be Common Iudges as I think in private Causes or of private Persons but of Iudges or of such as the Mirror speaketh of whom elsewhere there was no Common Justice to be had But if the Lords had not a Legislative Right why did the Commons send up the Bills to them how came the Lords to joyn with the Commons in Passing of Acts
It cannot be expected that I should shew the Original of all Changes or Distempers in this Kingdom It is work enough to shew our first Mould or Constitution yet for this also it cannot be doubted but the Barons Wars and Power might gain upon the Commons more than on the King he had such Bounds before that he could hardly be obliged more or capable of granting much but what was due before to all his People But it might be easie for the Potent Lords to grow upon the Commons in the Name of Barons In that Name I say for I cannot determine but the old Barons being the great Freeholders and the Lords of all the Manors that have left their Names in our Courts Baron had by Law and Reason much more Power than had the Kings Patentees Created Barons by Patent or Writ But this new Creation did but multiply the Iudges or the Kings Councellors for by so taking their Commission from the King they were only as other Judges in Inferiour Courts and so did really lose their great Power of Iudging which was proper only to those who were the Kingdoms Peers and Iudges So that these Lords did justly admit the Commons or rather were admitted by the Commons into the grand Iudicature and it may be that as the Barons did communicate their Power Iudicial so the Commons might communicate their Legislative unto those who had the Name but little of the Nature of the old Barons by Tenure yet by so doing they might bring Confusion or an harsh Discord into Natures Harmony But the main occasion seemed thus the King was tyed by his Coronation Oath to hold keep and defend the just Laws and Customs chosen by the Commons Iustas Leges consuetudines quas vulgus elegerit and this Limitation of Iust seemed to admit of reason or debate so much as might convince the Laws required to be Just for else I know not that the King was ever tyed to them And because he was or might be an Infant he had still a great Council about him to discuss the Laws proposed by the Commons and for this Cause he did and by reason might Summon the Lords or any other Wise and good Man he knew to come and give him Counsel as the Writ speaketh to the Lords and Iudges c. De quibusdam arduis nobiscum tractaturi Concilium impensuri So we find the old Acts passed per Consilium Baronum as we might shew in all Ages And because he used to demurr at Bills till he had the Advice of his great Council hence it may be for more Compendium the Bill was sent up first to the Lords as the Kings Counsellors and if they Counselled him against it then he answered Le Roy s'avisera The King will yet be farther Advised for he did not and I think he could not give a denyal nor of old perhaps Demurred till the Lords advised him against it I dispute not how much the Commons might oblige the Commons without assent of Lords or King Nor have I yet said that in the Coronation Oath the Commons Just Acts are called Laws and to Mould them may be works distinct enough and the plain truth is his Oath is to hold and to keep and to defend the Commons Laws à Tenir Gardir Les Defenderer per se tenendas protegendas as well as to Grant or to Confirm However I do not see either by Reason or Law That the King was so obliged to the Judgment of his own created Lords and there be few or none others left in England that he might not be convinced by the Reason of the Commons either without or against the Lords And beside divers Ordinances without any of the Lords it cannot be denyed but in Divers ages there were Acts of Parliament made without or against all the Lords Spiritual which yet often were the Major part of the Lords House and had as good it may be better Votes as Barons by Tenure than had all the other Lords by Writ and Patent only which might make them Judges or Councellors much rather than Law-makers I should still be far from desiring to obtrude my own Fancies or Opinions upon any least of all to the wrong of others Therefore if any can produce a better Title my Petition is they may be heard and may receive their Just Rights and Priviledges But if this be true which I now only propose and submit to better Thoughts and Judgments then had the Lords of late but a Right Consultative of making Laws And besides all that was said before this seemeth one Reason why our Ancestors did so willingly follow the Vice of Nature in placing the Power Legislative Iudicial and Executive in three distinct Estates as in Animals Aerials Etherials or Celestials three Regions and three Principles in Naturals that so they might be forced to consult often and much in all they did And if this frequent Consultation were retained and observed still it might not only occasion good Reviews but also prevent That which to the Common-wealth I fear and not Alone to private Persons may be sometimes prejudicial in a sudden Vote or Act of one House or one Body and yet one may be better much than Many if they be not good It must be granted that in Bodies of the Best Complexion and Composure here below there may be such Distemper and such Gangrene in some Members that it may be more than fit to cut it off Nay what was best may come to be the worst in Putrefaction That it may be meer Necessity to bury it although it were as Dear as Sarah was to Abraham or set on high by him that raised up the Brazen Serpent which see e're long lye buryed with this Epitaph Nehushtan And to all that is truly Just the Commons of England will not need to plead a bare Necessity for by Law and Reason too it may be said and proved I believe That both the King himself who chooseth by his Writ and All the Lords by several Votes have left the Legislative power so to the House of Commons that they had a Legal Right to do what all the Kingdom and Common-wealth of England Justly could But They are Men and therefore may be much unjust Nay where the Thing they do is Iust They may be much or most unjust I have neither Calling nor Ability to Judge them Nor may I act with force against them for whate're I think Unjust No not if I should think they did Usurp the Crown For if the Law Reports and Books deceive me not it hath been Judged Treason and so is for Private Men to rise conspire or Levy War against one that Usurps the Crown and Rights thereof except it rightly were declared Usurpation or that others should or might oppose him that did so Usurp Of which the Reasons may be Great and obvious Let me then suppose any one Man of all the Commons in Parliament for I will not
suppose it possible for All the House to Usurp the Royal Crown with all its Dues what should I what may I doe but mind my Calling and attend the Judgment of the Highest Court I know That may command my Body and my Judgment much for ought I see in things I know so little as I do or can the Due disposal of the Crown or that Mighty Burthen or that Royal Venom as the Roman Emperor did call it I did and still do believe there may and shall be such a Monarchy ere long tâ—â—â—ugh all the World that I shall gladly bow and stoop and bear the Yoke For it is easy and the Burthen light I hope and believe or know that God will come and appear ere long to dwell in the World For the Earth shall be full of his Glory and his Kingdom shall come and his Will be done on Earth as now in Heaven So we were taught to ask and it therefore shall be fully answered I could desire him rather if he pleased in the still quiet Voice then in the rushing Wind or Fire or Thunder-claps Yet so he came before and shook the Earth And so it seems again yet once again to shake both Heaven and Earth Overturning overturning overturning for there also were three till he comes whose Right it is To whom both Kings and Lords and all must bow or be bowed to submit and cast down their Crowns their Coronets and all their Glory The Earth shall reel and fall and rise no more For he will visit the Host of high ones that are on high and the Kings of the Earth upon the Earth they shall be taken and cast into Prison shut up in the Pit and shall be visited or wanting Nay he will darken the Sun and confound the Moon and make the Stars to Blush before he reigneth in Glory among his Antients in Jerusalem His Tabernacle then shall appear again and rest among them But BABYLON must first be pulled down We may deceive our selves in chayning Babylon to any Town or City whatsoever although one it may be more especially But Babel was the head of Nimrod 's Kingdom whence Tyranny did stream through all the World For although the out-lets of Euphrates be long since stopped in the Fenns of Caldea Yet there is another rapid Torrent Tygris which from Babylon disperseth much Confusion troubled Waters into all the Seas about Nor may it wholly be unworthy of our Thoughts how Babylon was alwaies the beginning or the Head of Tyranny through all this World But fatal still to most that did but touch it So to Nimrod the great Bell of Babylon and the Assyrians Sardanapalus might effect an end so like to Belus who was burnt some think with Fire from Heaven So that a Statue was made of him who left no Relique And from hence began Idolatry So to Nebuchadnezer and the Babylonian Monarhcy when the Watchers saw him strut and say Is not this my Babylon The Story of this and of its loss to Persians is so clear in Sacred Writ That I need not enlarge it from Iosephus the true Berosus Megasthenes Herodotus Xenophon or any later Though it be also very considerable among those Heathens And so is that famous Ruine of Senacherib whom Esay maketh a Type of all the Churches Carnal and Spiritual Foes Insomuch that from him rather than Egypt St. Iohn's binding of Satan the old Dragon the crossing Serpent seemeth borrowed The Persian Empire did begin from Cyrus taking Babylon It 's Pride and Tyranny did much encrease then when Darius won this Babylon again But neither Cyrus nor Cambyses Darius nor Xerxes or any other Persian Monarch could much prosper in ought of Consequence in Scythia Greece or other Places after they were stained or cursed with Babylon The Macedonian was succesful very much but not accounted any of those Monarchies till Alexander lost himself by gaining Babylon 'T is strange how great a Change it made in him that then became a Cruel Lustful and Licentious Tyrant stay but a while and you shall see him lose both Life and Monarchy at once in fatal Babylon Philip was very young but old enough to be the Father to a famous Grecian Epocha which used in the Machabees and many others first began in Babylon as Nabonassors's also long before The Character was Red and dyed with the Blood of all that Family Seleucus durst not call himself a King till well possessed of Babylon From whence began the Kingdom of the North which was in Daniel to wrestle with the South or Aegypt till the Ships of Chittim made him afraid and proud Antiochus was glad to bow and speak the Romans fair before he could be freed from his Circle though it were but made in Sand by a riding Rod. Babylon was fatal to the Romans also for so far they prospered still but never over or beyond the Streams of Babylon Charan was Tomb to Crassus's Army as before to Terah nearer much to Ura found in divers then to Urchoa with Ptolomy Much I might speak of Parthians Persians Saracens Turks These seem as Angels bound beyond Euphrates but being loosed and possess'd of Babylon their Tyranny was divilish Now it is or rather is not but poor Bagdad in Turkish Hands most times except an Army of Locusts 't is remarkable appear as Harbengers before the Persian But his Sun must be eclipsed with the Turkish Moon before the Glory of Ierusalem But to return to Babylon while Romans kept the Scene they acted well but 't was a Tragedy for some have thought they brought more Shame and Sin and Tyranny from all the Coasts of Babylon then Brass from Corinth or Antiquities from Greece Thus Babylon was buried in Rome but Rome is ruined by Babylon Edom and Babylon run Parallel in Judgment through the Prophets and the Iews were plain enough in saying or in proving who is Edom in this western World This Edom did give name all say since learned Fuller wrote his Miscellanies to the Red or rather the Reed Sea but this may be doubted and the rather with other great Objections for it is scarce a drop to that the Antients call the Erythrean Sea or Mare Rubrum never belonging unto Esau in that Edom will hardly be found to denote Red. A great Master of the Arabick and other kinds of Learning in Cambridge Mr. Wheelock did almost perswade me once that Edom's Name is better sought and found in Arabick where it may sound as much as Eator or a Glutton who did sell his Birthright for a mess of Broth as Adam the first Glutton sold his Paradice and all for a little Apple or the like This Etymology of Edom I could the rather believe because in Tuscan Latin and so many other Tongues Edo Eso Esor and the like Words do all signifie Eating and in other Nations the D is only changed into T its Cousen Germane How Edom came to be a Type of Rome as the Iews so constantly affirm may appear
Lists which I would avoid as a Purgatory being otherwise I say not better imployed than in such unprofitable Wranglings I should believe it not very difficult much less impossible to maintain That both the Moulding and Manage the Make and the Use of the Kingdoms Militia was ever immediately subject to the Command of the Courts of Iustice especially the Parliaments which may in a large Sense of Law be called the Crown or King's Politick Capacity but never I think to the King's Person alone which in Law is still an Infant as the Mirrour expresly calls him though his common Capacity be ever of age Be the Person a Child an Infant Lunatick Incompos Mentis or a Woman which sure our Ancestors could not but deem a most unlikely Person for a wise and valiant General If I were compelled to argue this it should not be only from right Reason or the Law of Nature which yet to me seemeth much to encline this way The Feet are to bear and the Hands to help to hold to bind and rub the Head in any Distemper or Weakness but if I should hear of any Man born with his Heels in his Neck or his Hands tyed to his Head or immediately under his Chin I should think it a Monster And wherever both Hands and Feet are at their due Distance from the Head with divers Nerves and other Vessels Bones and other parts between them yet I never heard or knew that they did obey the Head till it did command itself and them also by Reason or till it also doth Obey not only its own Eyes and Ears but the Common Sense and Reason of the Soul I must confess I have heard that Ticho-Brah did sometimes imagine that he found Mars below or under the Sun But if it were really so it seems as great a Prodigy in Nature as the new Star and that of Mars rather than a new Star in Cassiopeia might presage those sad Commotions which have since followed in many Places of Europe while Mars hath been so much below or under the Sun For by Nature Mars was said and ever thought to be placed immediately under Iupiter the great Judg or Court of Iustice which should command the Sword And so it doth by Law For in England the Iudgments given in any Court of Record do so command the Militia for Execution for a Writ runs of Course which was made by Common Consent and cannot be denyed Release to all Actions will not hold against Execution except all Suits were also released But this is such a Suit as the Law calls a Demand which may not be denyed And for other Cases of Routs Riots unlawful Assemblies Invasions c. The Posse Comitatus and by Consequence the Posse Regni was Disposed and Commanded by known sworn Officers that acted Virtute Officii by the Law and Custom of the Kingdom For it may be known that the old Iustices or Conservators of the Peace were chosen by the Counties as appeareth by Writs yet to be read from the Rolls of Edward the First And now their Commission and their Power dependeth on Parliament Nor could the Chancery have given such a Power had it not been so Established by Parliament which hath also strictly provided for their Legal Nomination and Election For which the Statutes of Richard the Second Henry the Fifth Henry the Sixth and before them all Edward the third thought it were not printed And it is very well known how by the Common-Law and Custom of the Kingdom all the Sheriffs do command the Posse Regni in their several Counties and that not onely Execution of Writs which may be thought to be Matters of Peace But the Lawyers know that Sheriff is Custos Legis and Reipublicae as well as of Peace of which he is the Principal Conservator in his Shire and County Nor may it be Presumption to say That all these Sheriffs also ought to be and so were chosen by the People as is sufficiently found in Hoveden and in the Laws of the Confessor And in full Parliament of Edward the first it was declared to be the Law and Custom of the Kingdom and therefore so setled in the Choice of the People There was in latter times some Alteration made in Choice of Sheriffs but it was by Parliament However we all know that Headboroughs Constables greater men than themselves know Coroners and divers others are yet still chosen in the Counties and do act by Custom and Common-Law And the Sheriff also however he be chosen yet he stands not by Commission nor ought to fall with Kings death But is a standing Officer by Common-Law Who may command all Lords Knights Gentlemen and others in his County by his Writ of Assistance Which issueth of course to every Sheriff I need not say how little the Kings Personal Command or Warrant can by Law interrupt or hinder the Process of Sheriffs Iustices Constables or others in their legal course for the Publick Peace Yea insomuch that if I should have beaten a Drum or raised Forces to rescue King Henry the Eighth from the Compter for abusing a Petty Watch in a Night-walk I might have been arraigned for it And so I might have been for refusing to fire the Beacons or to have raised the Counties if I had seen a Navie of French or Turks landing in King Iohn's time Although the King had come to me and bid me quiet because they were Friends or such as he invited in for the good of his Kingdom Which from his own Mouth or under his hand would have been no legal Supersedeas to a private man in case of such Danger much less to a Sheriff or other sworn Officer For in such cases of Apparent Danger any man that is next may esteem himself an Officer as in quenching great Fires or damming out the Sea And in such though the King himself should forbid me or get me indicted I may demur and put my self on the Judges of Law especially Parliament the most proper Judges in such Causes And to Lawyers I need not cite Records or Precedents Nor shall I need to adde That in case of Foreign Invasion or Intestine Motions and Breaches of Publick Peace the Common known Laws of the Land will warrant a Sheriff Officer or private man to go over a Pale an Hedge a Ditch or other Bound of a Shire or County In which our Ancestors were not so ceremonious or superstitious in case of hot Pursuit or the like Although they were punctual enough in keeping of Land-marks And in Peace in cases of real Actions and personal Trials They were very tender of those Marks in special that bounded out Shires or Counties The Original of Shires and Sheriffs is generally fixed upon King Alfred But the old Abbot of Crowland whence this arose seemeth to speak of new Names rather than Things for himself hath Provincias Comites Vice Domini though not Vice Comites of Ages before King Alfred And the Monk of
full and clear Parliament We need not suspect or doubt it for in those very times there were such Parliaments and such degrees Nay Caesar himself found such degrees among the Britains a King and Druyds which were as Bishops and Archbishops as we may clear anon Dukes and Nobles besides the Commons So civil was our British Ancestors Of whom much more ere long And for the very first times of Christian Religion which was much higher than Austin the Father who might have been great Grandfather to Austin the Monk King Alfred's own Laws acknowledge that in this Island the Laws were then made by a Common Council of Bishops and other Wise men or elder men of the Wytan Old Bede seemeth plain enough for this in several places Servabant Reges Sacerdotes Privati Were the Commons before the Lords Optimates suum quique Ordinem And of the Saxons called in by Common Council Initum est Concilium quid agendum c. placuitque omnibus cum suo Rege Vortigorno ut Saxonum gentem in auxilium vocarent And of Ethelbert King of all the South to the River Humber Among other good works saith he quae consulendo conferebat etiam decreta Iudiciorum juxta exempla Romanorum Concilio Sapientiunt constituit And among other Laws of his in the same Bede that is one in special for Priviledge Ecclesiae Episcopi Reliquorum ordinum That this might also extend to the great Priviledge of Parliaments I could the rather believe from the Laws of the said King Ethelbert yet to be found in the old book of Rochester Textus Roffensis of which Sir Henry Spelman unto whom we owe so much for all Antiquities Where after provision for the things of God and the Church to which St. Edward's Laws allude the next Act is for Priviledge of Parliament it seems being for the punishing and sore fining of those that should do any damage Gif Kyning his Leode to him gehateth c. And in the old Chronicle of Canterbury we read of this King Ethelbert being at Canterbury with his Queen and Son and the Archbishop Austin Caeterisque Optimatibus convocato ibidem Communi Concilio tam Cleri quà m Populi With divers other proofs for Parliaments in Charters to that Church in print And Spot deserves as much One thing I must not omit that Bede observing how Religion was preached both to the King and to the Counts omnibus Comitibus saith there was a License granted for publick Preaching but when the King and divers great men were converted and baptized yet there was no force used to compel others to be of that Religion because he saith they were taught that Christs service must be voluntary and not forced But the Mirrour telleth us the King was bound to compel men to Salvation O happy men or unhappy King But the Britains would not be forced from their Rites by Austin the Monk Absque suae gentis imprimis Senatorum suffragio as a learned man translates King Alfred's Saxon Bede Which is also very clear in several places for setling of Christian Religion when it was freely chosen with destruction of Pagan Idolatry with Lent and other things confirmed by divers Acts of Parliament in time of Ercombert and King Edwin Mid his Witum mid his Ealdormanum So is the old Book of Peterburgh for a Parliament or Heatfield With which we may compare somewhat in Ingulph and more in Bede Ethelward and Huntingdon about the Parliaments which received and consirmed the General Councils and that which established the Division of Parishes and Patronage of Churches Of which Stow and the Antiquities of Canterbury but especially a Manuscript in Camdridge cited by Mr. Wheelock on the fourth or fifth of Bede I should not digress to Sigesberts founding the Vniversity of Cambridge had not King Alfred himself in this added good Notes to Bede By which we may see whence he learned what so many say he did to Oxford the younger Sister For which Polydore is plain enough besides so many better elder Authors It is also considerable that King Alfred calleth Cambridge or Grantacestre a City which Bede would make a Civitatula How little it might then be made by the Danes or others I know not But in old Nennius of the British Cities I find Cair Granth next before Cair Londen And Sir Simon d' Ewes affirmeth it to be ranked before London in Gildas Albarius and an old Saxon Anonymus besides that of the old but not the oldest book of Doomsday Nor must I omit the Records of Richard the First for the Customs of the City of Cambridge found by a Jury in an Assize of Darrein Presentment for the Church of St. Peters in Cambridge Of which the great Judge in his Reports or Commentaries To which I might adde what the Saxon Chronology speaketh of Grante Briege at the year 875 and 921 where we also find an ancient Military Sacrament or great Oath of Fealty more to be marked than may seem at first view Come we to the Saxon Laws extant in print They begin with King Ina whom some will have to be a Britain But in the Confessors Acts he is stiled Optimus Rex Anglorum qui electus fuit in Regem per Angelum qui primum obtinuit Monarchum Totius Regni hujus post adventum Angliorum And that himself and others of his People matched with the Britains But per Communae Concilium assensum omnium Episcoporum Principum Comitum omnium Sapientum Seniorum Populorum totius Regni Not onely a clear proof for Parliaments in King Ina's time but a good Comment on his Laws in print Providing about Matches Dowries and Women's Thirds and all by Parliament as the Proem it self expresses beside King Edward's Laws And for the Saxon Militia a Phrase used by Bede himself Nam egressi contra Gevissorum gentem omnes pariter cum suà Militia corruerunt King Ina's Laws afford us divers Acts of Parliament providing against Thieves Riots Routs and all unlawful Assemblies in several degrees and branches As also for Officers of the Militia to be ready on a great Fine to march upon all just occasions With which we may compare Mr. Lambert's Custos Paganus Sithecundman which some would have to be the Father to our Side-men See Whithred's Military Dooms Egbert is by all esteemed a great if not the first Monarch of the Saxons a great Warriour and a Conquerour But yet he neither made or managed the Militia without a great Common Council or Parliament For which besides all others we have a clear proof in the old Abbot of Croyland to which there was a great Charter confirmed Coram Pontificibus Proceribus Majoribus totius Angliae which were all together at London consulting how to provide against the Danish Pirates Pro Concilio capiendo contra Danicos Piratas c. That also Majores in this place might denote some lower than Earls or Lords may not onely be gathered from
the Close is Acta haec confirmata apud Londonium Communi Concilio omnium Primatum meorum c. I should be unjust to our Laws if I should omit the Process and Plea of Morgan Hen against Howell Dha the good Prince of Wales Upon complaint they were both summoned by King Edgar Ad curiam suam and their Pleas were pacately heard In Pleno Concilio repertum est justo Iudicio curiae Regis quod Howell Dha nequiter egisset extra Morgan Hen filium sui Huwen depulsus est Howell Dha ab his duabus Terris the Lands then in question sine recuperatione Postea Rex Edgarus dedit concessit Hueno Morgan Hen illas duas Terras Istradum Euwias in Episcopatu Landas constituas sicuti suam Propriam Hereditatem illas easdem duas Terras sibi Heredibus suis Per chartam suam sine Calumpnia alicujus Terreni hominis confirmavit communi nostro assensu testimonio omnium Archiepiscoporum Episcop Abbatum Comitum Baronum totius Angliae Walliae factum est coram Rege Edgaro in pleno concilio c. This Record of King Edgar is in Codicae Landavensi fol. 103. I find it cited by the great Antiquary Sir Henry Spelman and it may be compared with the Monk of Malmsbury and Matthew of Westminster I must not relate the Visions or Predictions of the Fates of this Kingdom which Historians record about the Reign of King Edgar they are in print and may be read of all Besides the Prophecies of both the Merlins for the Scottish Merlin was fuller and plainer than the British in Vortigers time That I say nothing of Cadwalladers Vision or Alans Council which was long before the other Alane wrote on Merlin or of the famous Eagle of Shaftsbury that agreed with others in the Britains recovering their Kingdom again after their grand Visit at Rome whence they must bring Cadwalladers bones This leadeth me also to the Sybils Prophecy of three British Princes that should conquer Rome Brennus was one King Arthur some make the second Et quis fuit alter And of these Sybils or one of them sending a book to King Bladud so famous for the Bath and Greek-Schools or University at Stamford the Scotish Merlin seemeth to have written if among others I mistake not Baleus But of Edgar's Parliaments one was at Salisbury so we read in Chaucer or the old Fructus Temporum by Iulian Notary at St. Albans And of another of his Parliaments at Bath the Saxon Chronology at the year 973. His Laws are now printed and their Title is The Acts of King Edgar and his Parliament Mid his Witena Getheate gerred c. Here we find much considerable of Thanes which all will have to be Noble-men but it must be with them a Saxon word And Dhenian is to serve whence the Princes Motto Ic Dhaen For so it should rather be than in Dutch Ich Dien But why should Noble-men or those that were the freest have their name from serving Here they flie to Knights-service King-service or I know not what most proper as they say to free and Noble-men But from a Judge or Fleta we may be taught that the Saxon Dhaen or Thaen is a Servant but Thayn a Free-man And in this sence it seemeth to be used here As also in Denmark and Ireland Nor did the Britains differ much whose Haene or Hane is an Eldar although Hyne be sometimes used for a Servant And so the Irish Tane is Elder whence their Tanistry or Eldership the cause or sad occasion of such bloudshed These British Hanes the Saxons in compliance called Ealdermen St. Edward's Laws afford so much and it may be Thanes although with them they had the name of Greeues or Graves suiting well with Elders Hanes or Senators With which we may compare the Phrase of Seniores which we read so oft in Gildas Nennius Monmouth and others of the British and first Saxons times in Britain I should be tedious in but glancing over the Acts of Parliament in Edgar's time That of the Standard at Winchester is considerable and that of one Coyn through all the Kingdom The Mirrour is plain in making it an Act of Parliament in Saxon times That no King of this Realm should change his Money or embase or enhanse it or make other but of silver Sans l' assent de tout ses Counties Which the Translator is bold to turn Without the Assent of the Lords and all the Commons We may not omit the Act against unjust Judges or Complaints to the King except Justice could not be had at home For which also the Hundred-Courts were again confirmed and the Grand Folkmootes or Sheriffs Turnes established by Act of Parliament Of which and of their relation to Peace and War more in Edward's Laws which may afford a Comment for the Saxon Militia I need not speak of the Parliament at Calna it is famous enough where Considentibus totius Angliae Senatoribus the Roof fell down and hurt them most but St. Dunston Of which Wigornensis Iornalensis Malmsbury Matthew of Westminster and so many others may be cited King Ethelred's Laws have this Title in Lumbard Sapientum Concilium quod Ethelredus Rex promovendae pacis causa habuit Wodstoci Merciae quae legibus Anglorum gubernatur aefter Aengla-Lage Post Anglis Lagam as an old Author turneth it In those Acts we read of Ordale Sythan the Gemot waes aet Bromdune Post Bromdune Concilium It seems a Parliament And again Iussum ac scitum hoc nostrum si quis neglexerit aut profuâ quisque virili parte non obierit ex nostra omnium sententiâ Regi 100 Dependito By which it appeareth to be a Parliament and not the King only that made those Laws That which Sir Henry Spelman calleth Concilium AE 〈…〉 e Generale was clearly one of King Ethelred's Parliaments and the very Title is De Witena Geâ—ednessan and tha Geraednessa the Englaraed Witan gee 〈…〉 c. And divers Chapters begin Witena Geraednesse is enacted by Parliament And the old Latin Copy of this Parliament telleth us that in it were Vniversi Anglorum Optimates Ethelredi Regis Edicto convocato Plebis multitudine collectae Regis Edicto A Writ of Summons to all the Lords and for choice of the Commons a full and clear Parliament In this Parliament were divers Acts for the Militia both by Land and Sea as most Parliaments after King Edgar and among others for Castles Forts Cities Bridges and time of the Fleets setting out to Sea It is made Treason for any to destroy a Ship that was provided for the State-service Navem in Reipublicae expeditionem designatam as a learned man translateth the Saxon. And no Souldier must depart without leave on forfeit of all his Estate None may oppose the Laws but his Head or a grievous Mulct according to the Offences quality must recompence It was here also enacted That Efferatur
Parliamento personaliter Existentibus And the Title of these Acts is Statutae Canuti Regis Angl. Dan. Norw venerando Sapientum ejus Concilio ad Laudem Gloriam Dei sui Regalitatem Reipub. Utilitatem Commune Commodum habita in S. Nat. D. apud Winton c. This I find also cited by the great Judge in one part of his Reports but fuller by Sir Henry Spelman It would be tedious and superfluous to cite the Authors that assert he did confirm King Edgar's Laws in full Parliament For which we might produce some better or at least much older than good Bale or Grafton Many of his Acts of Parliament are printed Consultum quod Canut Angl. Dan. Norw Rex Sapientum Concilio Wintoniae Sancivit Here Allegiance or Fealty setled by Parliament and afterwards Praecipimus uniuscujusque Ordinis singuli Muneris atque Officii sui Religionem Diligenter cauteque teneant And among other Encouragements to Chastity this is one That such chast men of God should enjoy the same Rights or Priviledges with Thanes and Ethelstane's Laws do equal Priests with Thanes But there are two or three degrees of Thanes in these Laws about the Hereots for the Eorles and Thanes c. much to be marked as pertaining to the Militia For which and for all Canutes Laws the old MSS. Huntingdon is worth perusal Again we find other Statutes Civil or Politick Sapientum adhibito Consilio Mid Minan Witenan raede that Man heald ofer eall Englaland With provision against Thieves Robbers for the Peace Hue and Cry c. There are Statutes also for repair of Burgs and Bridges Scyrforhinga praefidii fiat apparatus Terrestis ac Maritimus quoties ejus Muneris Necessitas Reipublicae obvenerit And presently after Quae ad Reipublicae pertinent Vtilitatem Among the Crown-Prerogatives Violata Pacis Divitatae Militiae Mulcta Sheriffs Turns Hundreds and Tythings are here confirmed and the twelve-year-old Fealty with views of Frank-pledge But this Oath was to the Kingdom rather than to the King Fidem det omni se in posterum aetate tum Furti tum Furti Societate Conscientià temperaturum Again of passing Ordeals Sythan tha Gemot waes on Winceaster since the Parliament at Winchester this being at Oxford at after Iussum vero ac Placitum hoc Nostrum si Praepositorum aliquis incuriâ omiserit aut exequi aspernabitur ex Nostrà Omnium Sententia Regi 120 s. Dependito A clear Parliament Si quis alium injustè armis spoliavit eam quae est loco Colli obstricti Mulctam Dependito Healsfange It is also in the same Laws the punishment of false Witnesses Some think it the Pillory some worse as the Original of that Proverbial Letany From Hell and from Halefax See K. Hen. Laws and Helfang Si quis in Militiâ perfectione Militari pacem violaverit vita vel Weregild Mulctator si quid rapuerit pro facti Ratione compensato Si quis Pensionem ad oppida pontesve reficiendos denegarit Militiamve subterfugerit dato is Regi 120 s. Again in those Statutes The King must live upon his own Feormians or Farms which in Saxon afford all needful for man and none may be compelled to give him any Maintenance That the Folk be not burthened It is the 67th Chapter Loss of Dower or Joynture to Widows marrying within twelve months might seem hard but so long she need not pay any Heriot And the same Laws free the Wife from her Husbands Theft although found with her except it be lockt in her Hord Chest or Tyge Dispensae arctae Serinii Of which that Law giveth her leave to keep the Keys But Ina's Laws are hard concerning Children Again for the Militia He that in Sea or Land-fight leaveth his Lord or Comrague Felugo must die as a Traytor his Boocland to the King other 〈…〉 Estate to his Lord. But of him that dieth fighting with his Lord without any Heriot the Heirs may enter and Scyftan hit swithe righte Of this Shift-Land and Gavelkind Lambard in Terra Scripto Perambulation of Kent and Spot of Canterbury besides several Acts of Parliament in Edw. 1. Edw. 3. and Hen. 8. If Celeberrimus ex omni Satrapia Conventus which is there and by King Edgar also to be twice a year or oftner be Parliament as such great men have thought then have we much here also for Power and Priviledge of Parliament Nay more indeed if it were but the Grand Folemoot or Sheriffs Turn so much below a Parliament He that in such a Grand Moot had defended and maintained his Right and Plea to any Land is there setled without dispute for his life and his Heirs or Assigns as his Will should dispose Chapter 76. And again for Priviledge of Parliament or yet lower Sive quis ad Comitia profiscator sive revertatur ab eisdem from Gemote or to Gemote placidissima pace fruitur nisi quidem furti fuerit manifestus Theof Thievery founded more with them than now with us For their twelve-year-Oath of which before at Frank-pledge was onely against Theof which yet seemeth to intend all above it for what forbiddeth the less forbiddeth the greater much more One thing more I may observe through all these and other old Laws there is still so much Religion and plain-hearted Simplicity with Piety expressed that it shews our Ancestors had not yet learned to be ashamed of their God or of looking towards Heaven I have been the longer in these that so I may be the more brief in those that follow for by this time I am come to the Laws of St. Edward as he is called and I should mispend my own time and abuse others in vouching all the Demonstrations of Parliaments in his time His Charters to Westminster are near enough and may be known of all wherein he confesseth his Resolutions for going to Rome But Optimates Communi habito Concilio rogabant me ut ab intentione desisterem his Vows made him more pressing than else he should have been But these also his Parliament undertook to satisfie Et tandem utrisque placuit so he speaks ut mitterentur Legati c. While these stayed at Rome procuring his Absolution a Vision to a Monk commandeth repairing or refounding of St. Peters Westminster as antient as Austin the Monk I cannot omit a passage in one of the Popes Letters of that time telling the King That he must expect great Motions and Alterations for the World was near its great Change and the Kingdom which he calls Sanctorum Regnum foretold in the Scripture was coming to begin and never should have an end King Edward refers it to the Parliament and at length Cum totius Regni Electione they are his own words he sets upon the decayed Minster Which he rebuilt with the Tenth of his whole Estate and there reposed the Reliques which the Popes gave to King Alfred at his Consecration with this grand Priviledge of Refuge and Pardon to any that fled
so courteous as to confirm some such Sea-Custom for which he had a very sad Occasion when his Sons and Daughter with so many Friends were drown'd in one Shipwrack But as Richard soon after him seemeth more courteous in this also if we may believe Hoveden So I doubt not to assert it to higher and elder Times And yet the Law Maritime is dark enough with all the jurisdiction of the Court Admiral Whose office may be harder than the Name A strange mixture of Greek and Arabick The old MS. del ' Office del ' Admiral hath divers Records of H. 1. R. 1. and K. Iohn Speaking of Tryals by 12. as at Common Law but now the practise is much otherwise In the Rolls of Ed. 1. the Name of Admiral but not in our Printed Laws that I know till Edw. 2d And in Edw. 3d. the Rolls are full of that Office parted among divers for the North and South Seas c. As was touched before in Edgar In Richard the 2d it was brought to a weldy model being uncertain rather than infinite before For the bounds were ever straiter much than some may imagine They were again disputed in Henry the 4 th Eliz. and Iames. It lies more open to the Common Law than to the Wind and to a Premunire some are apt to think much more then all are aware I may touch it again in a fitter place Here I shall only add that besides the Laws of Arthur the Brittain and Edgar the Saxon we have some Records for so I may call them of Customs by Sea as well as by Land With Priviledge to some below the King before the Norman whom they make the Founder yet he was but Patron of the Ports and Wardens for the Sea Somewhat of this in Lanfranc's Case before and more again ere long Historians are clear and full of this King's Parliaments and of his Summons to Parliament Majores natu Angliae Londoniae Congregavit and again principes omnes totius Regni Nobilitatem sanctione adnotavit so the Monk of Worcester and Hoveden almost in the same words which Matthew Paris expresseth thus magnatibus regni Edicto Convocatis And in Walsinghams Neustria Majoribus regni and Principibus Convocatis Virgil himself confesseth his full Parliaments And of a Convocation House distinct from the Parliament sitting at the same time they are plain enough Et cum rege principes regni omnes tam Eccles. quam Secular apud Westmon ubi etiam Anselm Cantuar. Archiep. magnum tenuit Consilium de his quae ad Christianitatem pertinent as Florence and Hoveden Huntingdon is also clear in such a distinction Rex tenuit Concilium apud Londoniam Willielmus Archiep. Cantuariensis similiter in eodam villa apud Westmon and this Author useth to stile the Parliament magnum placitum of which before and the Convocation House Concilium or Synodus which yet in him in all was confirmed by Parliament or else invalid In Parliament were also decided the Great Contests between Canterbury and York not only concerning the Crown or Act of Coronation in which to this King they both joyned as we find in Matth. Paris and Walsingham But the Parliament declared that it did not at all belong to York as besides Hoveden we read in him that continueth Florence of Worcester But in Beckets absence it did fall to York and so it had been before So also Canterburies contest with the King was debated in full Parliament three days together in the Arch Bishops absence and at length composed with the consent rather than content of both parties The King was resolute for investiture as he found it from his Father and Brother the Clergy was pertinacious for the Popes Decrees But the Emperour Son in Law to our King did so muzzle Pope Paschal that he Consents and Decrees that none should be Consecrate but whom the King Invested as the Clergy and People chose him It seemeth considerable how all Historians of that time and dispute do Record the choice of Bishops to be in the People in Phebe and in Populo as well as in Clero They mention Radulph ordained a Bishop for the Orcades but rejected by all because not Elected by Common assent of the People Plebis Clero Principis 't is every where in the old Monks and how the poor Bishop wandred up and down as an assistant to other Prelates Of him and of English Right in Scotland and Ireland much might be added from the Notes of Eadmerus and somewhat of Lanfrancs Plea at Pinenden And at Prince Roberts Landing commoti sunt principes erga Regem causa Roberti c. But many of the Lords left the Parliament subtrahentes se de Curia sed Episcopi et milites Gregarii Angli the Commons stuck to the King who was Provincialibus gratus and at length the Witan or Parliament composed the quarrel Sapientiores utriusque partis habito consilio Pacem inter fratres composuere 'T is in Florence and Hoveden with Malmsbury Wendover with Huntingdon Record how the great Firebrand in that War Ranulph of Durham was committed by the Parliament de Communi Consilio Gentis Anglorum This was the great man whom K. William had made Pacitator in Matth. Paris but Placitator exactor totius Regni in the Monk of Worcester His continuer addeth also that the Peace or League with France in this Kings time was made by Parliament Consilio optimatum and that by advice of Common Council the Custody and Constableship of the Castle of Ros or Roch with its Ford c. were setled in the Arch-Bishop and Church of Canterbury with leave to build a Tower and divers other Priviledges for the Militia I must not mention the Orders of King Henries Parliaments against Money Clippers and corrupters with such a change of Money as made things very dear So dear a time that an Horse-load of good Wheat could scarcely be bought under six shillings as Henry of Huntingdon and others Of King Stephens Election more when I shall discuss the Right of Succession to the Crown But I must not omit that which of him is Recorded by so many good Authors That he did prohibit the Laws brought hither from Rome And this also by Parliament as Bale affirmeth But of this in much older writers Frier Bacon is one in his Compendium of Theology or his opus minus and the great Reporter citeth it from Bacons impedimentum sapientiae He was a very Learned man and a most genuine Son of Art his Opticks and his Burning-glasses would be more enquired after for they may be little worse than those of Archimedes who in this is newly found to go beyond himself Such Glasses must be Conick Section and in Concaves not exactly Circular but parabolical for which there is as real Demonstration by the Law of Reflections as for the best perspectives by refractions in Ellipses and Hyperbolies to which I must not add that Mirandum Naturae of two lines that approach nearer
K. William as I should before upon the Oaths of chosen men from every County sworn as strictly as I remember any to have ever been with additions also of some emendations added by King William ad Utilitatem Anglorum These Laws he saith were compiled or conditae by the said great Glanvil who in Henry the 2d he stileth summum Iusticiarium totius Angliae And for this Kings confirmation of the good Laws of H. the first we need no more than what we find in him and all other Historians of the grand contest upon that occasion between the King Becket Son to a Saracen or Syrian Woman yet a Citizen of London and his Fathers Name was Gilbert Favourite at first he was to Theobald of whom before by him commended so that he became Lord Chancellor But at his Patrons Death being chosen to succeed in Canterbury he resignneth up the Seal at taking orders and in this both Wendover and Matthew Paris add to Hoveden who in Becket is the largest Polydore agreeth that his former perferment was to be Arch-Deacon to that Sea to which he makes the Office of a Legate to be then entailed ever since Lord Theobald did fetch his Pall from Rome But the great quarrel was about the confirmation of K. Hen. Laws of which before They touched all the Clergy So that once reading of them was enough to make the Pope condemn and Ban them all In a great Councel or Parliament the King did ask they say petitioned the Church that all would agree to keep the Laws of his Grandfather Henry the first Becket with some reluctance did consent without his Salvo But again repents in Parliament at Clarendon 't is clear as well for Commons as for others Congregato Clero Populo Regni apud Clarendun And again the Lords beseech the Prelate that he would vouchsafe to come and say before the King and Commons coram populo diceret that he would receive and admit those Laws He doth consent and comes into the House and frames his lips into a Content the King is glad and bids the Lords retire and bring those Laws from the Records that all might be perused and agreed Somewhat more he meant for when the Lords returned with those Rolls the motion was that all should set their hands or Seals in witness of agreement But at this The Prelate startles and recoyles again and riseth high or foul in Language So withdraws in greatest discontent Ere long we find him out again at least he would be out For now he sueth for a Pass to France he meant the Pope I must not here omit the course the King did take to stop him One there was that did complain he had been long in suit in some inferior Court of Becket yet he could not get his right and therefore was at length enforced to some other course and Court. For which his way was first to falsifie the Prelates Court by Oath according to the Custom of the Kingdom and of that we spake before in Writs of Right and Tolts or Pone's to remove them to some higher Court. This seemed but a petty Case that happen'd every day so that the usual Writ hath such a clause that if the Baron did not then the Sheriff should And if the Sheriff failed in the County Court then Bench must help But this was now enough to give a pause and check to that great Prelate He must stay and plead it out at length he finds the formal Oath to falsifie his Court was made upon Paper or a Service Book whereas the Law required that the Oath should be upon the Holy Gospels This would not suffice but Parliament at least the Barons and the Tenants en Chief were such did put the Prelate into Misericordia He doth struggle and attempt a Writ of Errour or the like Iudicium illud falsificare but he must submit and is amerced at 500 l. he cannot bear it fulleth 〈◊〉 but soon receives another summons For he shall have load enough and now must give account of all his former Bailywick He seeks delay and would be Essoyned de Malo lecti and instead of Knights two Earles are sent to view him whom they find in Bed but give him respite only till the morrow This bringeth a Case of Law to mind Essoyned of sickness cannot Rise without a License If the Knights that come to view him find him not or out of Bed it is default Of which in Bracton Fleta Hengham And his Learned Commentator addeth a pretty Case in Rich. the First The Abbot of Crowland sueth the Prior of Spalding for entring upon his Marsh. The Prior Pleads he entred as upon his own Ese-simple and doth offer 40 Marks for grand Assise and so the Mise is joyned and the Right doth lie at stake The Abbot is Essoyn'd de malolecti and the Writ goes but to the Knights But while one was coming to view him he doth rise and cometh towards the Court so the Knights Certificate is The Abbot was not in Bed On long debate the judgement was that upon default the Abbot yet in Possession must submit to yeild the seisin to the Prior whom he sued See the Statute of Marlbridge and the 2d of Westminster cap. 17. But Becket had Law enough to make him Rise and come to the Court in fear and discontent but his Right hand is so fastned to his Cross that it could hardly be forced from him who did struggle for it But his sorest pressure is an heavy Action of Account for all he had received as Lord Chancellor He pleads Discharge And that at his Election Henry Son to him that had such interest in the Kingdom cui Regnum adjuratum fuit and all the Barons of the Exchequer and Richard de Lucy Iusticiarius Angliae did declare him free quietum Deo Ecclesiae ab omni exactione seculari c. But his conclusion Ideo amplius Nolo inde placitare cost him dear For when the King had this he knew his way and said to the Parliament or Baronibus suit do me speedy Justice on this man Cito facite mihi Iudicium de illo qui Homo meus ligeus est stare Iuri in Curia mea recusat So they did retire and being alone without the King exeuntes Iudicaverunt And they did adjudge him to Prison But he escaped before his Commitment although some that saw him going cryed Traytor stay and take thy Doom By stealth he got to Sandwich thence to France by Flanders where he found the Pope I do not know that he talked much of refusing to make his account But his grand complaint was that he was pressed to consent to such injurious Laws as those which he brought to the Pope of King Henry the First Which were soon damned notwithstanding our Kings Embassadors But Writs were sent abroad to the Sheriffs and Iustices for seizing all belonging to the Arch-Bishop for attaching Arms that did appeal to Rome or
bring any Letters of Excommunication or attempt a Voyage beyond Sea without a Licence And for sequestration of the Peter pence till further order If that I have cited already were not clear enough for Parliament in these we may have more from Wendover or Matthew Paris where we are expresly told that the great meeting at Clarendon of which before was made up of a Lord President de mandato ipsius Regis with Arch-Bishops Abbots Earls Barons and to these also are added Proceres Regni which may here speak the Commons as in Hoveden Populus so often expressed of that Parliament For it may be remembred that Virgil himself doth acknowledge the Commons also to be very frequently called to Parliament from the time of King William as we may read in his large description of our Parliaments in Henry the first To which also for this Parliament at Clarendon we might cite very many Historians besides Gervase and the Quadrilogus or Becket's Life by 4 cited on Eadmerus and in Ianus from which there is much to be added to that in Matthew Paris Where it is also asserted that these Constitutions of Clarendon were not only agreed but expresly sworn by all the degrees of Parliament Episcopi Clerus cum Comitibus Baronibus ac Proceribus cunctis Iuraverunt c. as also that these were but a Recognition or Recordation of some part of the Customs and Liberties antecessorum suorum Of which also Florilegus thus coram lege Magnatibus facta est Recordatio regiarum Libertatum Consuetudinum Cui Archiepiscopus assensum non praebuit c. Nor would it be hard to shew very many if not all of them agreed in Elder times Of Foreign Appeals we spake before and the Writ Ne Exeas Regnum is as old as Rufus if we may beleive Polidore or better Authors To that of Appeals from Ecclesiastical Courts to the King or Delegates I can add very little to what is in Caudries Case in the 5th part of the great Reports with the preface to the 6th That against Excommunication of the Kings Tenants or as the Elder Law was of the Barons is cleared enough in the Notes on Eadmerus from the first Norman Records To which may be added a Law of Henry the first of the Wills or Legacies of his Barons vel Hominum with which the Learned Ianus compareth an Old Law of Canute and toucheth the power of the Ordinary in Case of Intestates which is prescribed from most antient Parliaments but the Original doth not appear I must not spend time in heaping up the many proofs of Parliament for the Assizes of Clarendon which were again renued at Northampton Hoveden is large and clear for them all and for the Circuits and Iudges in Eyre by full Parliment Communi omnium Concilio But the Mirror and those that write of Alfred will afford us these in many older Parliaments From that Assize of Arms for every Fee we may learn to expound the Statute of Winchester and others speaking of a former antient Assize which is here found at large To which I may add that what is here spoken of the Iustices presenting to the King may be expounded to the King of Parliament As is fully expressed not only in Fleta but in the said Statute of Winchester The Iustices assigned shall present the dafaults at every Parliament The defaults of Arms for the Militia And by this time I shall not need to speak of Escuage in H. 2d assessed by Parliament for Tholouse Wales and Ireland of which Gervase the red Book in the Exchequer and Matth. Paris with the Notes of Hengham To which I might add Matth. of Westmin de unaquaque Carrucata terrae totius Angliae quatuor denarii Concessi sunt collecti for the Holy Land But when he had the offer of the Kingdom of Ierusalem Convocato Clero Regni ac Populo it was rejected Concilio universo as the Monk of St. Albans speaketh Of K. Rich. Coronation and his Oath before the Nobles Clero Populo Hoveden is very large From him it may be found in others And of the Jews in those times to whom he was a Friend as his Charters shew and very sorry for their sufferings who did help him much for his Eastern Wars as some relate with Polydore See Mr. Selden on Arundeliana Marmora his great Charter to the King of Scotland of many Liberties for which he did recieve 10000 Marks but still retaining the antient Dues to this Crown is every where For which I must not forget what was before in H. the 2d Malcolm became his man 't is said and did him Homage but on some disgust he was not Knighted by our King as was wont and Matth. Paris addeth also that the Scottish Kings Horse was the English Marshals Fee at such a Knighting But Hoveden telleth us that about two years after the same King came again and was then Knighted by King Henry Of his Parliaments and their Power in War and Peace I might cite very clear proofs The League with France was agreed by both Kingdoms Archiep. Episcop in verbo veritatis that was the mode in those days for them as for the Lords since in verbo Honoris Comites Borones Regnorum praestito Sacramento juraverunt And his Sea Statutes were made de Communi proborum virorum Consilio as the Charter it self expresseth it in Hoveden Wendover or Matth. Paris Who doth add that per Consilium magnatum there were made Iusticiarii super totum Navigium Angliae c. Which with divers Records of H. 3d. may be added to the Admiral or Saxon Aen mere eal Over all the Sea How the Lord Chancellor being left the Custos Regni did on pretence of the Kings Warrants pole the People is at large in Hoveden and others But in the Monk of St. Albans we may read that er'e long in Parliament of Commons also assensu Communium definitum est it was enacted that none should so domineer in England to disgrace the Church and oppress the People And that all the Castles which the said L. Chanc. had committed to his Clients or disposed without the Parliaments assent should be presently delivered up and in particular the Tower of London where he then was and was glad to yield and make his peace with much submission for to save his Life For which also Polydore Virgil is worth perusing And in him we also find the North committed to the Bishop of Durham who of an old Bishop was made a young Novice Earl but he paid dear for his honour and how the Chancellor excused himself by the Kings Command As if saith Polydore the Kings Command might disannul the Law Quasi fas esset jus omne principis jussu rescindere Of the Kings Voyage to the East I shall not speak nor of the famous Prophesies he found touching Antichrist and the Revelation They are in Hoveden besides all others Where we also find him ransomed
men Trustees to the whole Kingdom and Neighbours to the Fact or Party or both To which also there must be a legal proof by lawful Witnesses or else the Charge will not suffice And in such Indictments from the Commons the Lords are the Tryers and the King may seem as the Iudg but in other Courts also the Judgment goeth of course upon the Verdict and must be entred per Curiam as adjudged by the Court although there be but one Judge or tho' his Mouth pronounce not the Sentence But we are not yet come to debate the King's Consent to the Lords Judgment an Indictment from the Commons It is also to me very considerable how the House of Commons could or ever did Indict I cannot deny them to have been a Court and a Court of Record although some have seemed to question it and their Records are not so ancient as some others But I have not fully understood how they ever did make or receive a Formal Legal Indictment when as they did not give a single Oath much less Empannel a Iury or Enquest Yet some there be that without a Writt or any written Commission did and might do this Virtute Officii But they be known chosen sworn Officers of the Kingdom for such Purposes as the Peeples Bayliffs Coroners Sheriffs Escheators and some Officers about the Forest who by the Common Law did Summon and Empannel Juries But so did not the House of Commons How then did they Indict Of all Crimes committed in the House they are and were so much the sole Iudges that they seldom use to complain much less to Indict any other And for any thing done abroad I hope they do not use to take Rumours and Reports though from their own Members to be sufficient for or equivalent to a legal Indictment on Oath Seeing their scarce is or can be any Case so notorious but it may be pleaded unto by somewhat of Law or Necessity And although I should yield the Commons to be the Masters of the Law in making it yet they pleased to allow others to be Iudges in their Laws And if they reassume this also yet it may be more easie to judge of some Law than of any Fact at least as it may be cloathed so as a curious search or Enquest may be requisite to lay it clear and naked Neither can I see how it may be necessary to proceed against any by force or illegal Process when it is easie as well as just to go rightly as to do right For who can imagine a Case so dark and intricate but it may be contrived so that particular men may be Accusers and others Witnesses with a clear and real distinction between Indictors Tryers and Iudges most of all in Cases notorious and evident For in such there may be less fear of the Iuries Verdict against Evidence or of the Iudges Sentence against the Verdict Or if this should happen in a Tryal is there not a most heavy doom appointed by Law for all Iurors that forswear themselves and goe against their Evidence Is there not a clear way of Relief by Writ of Attaint Is it not worse than Death to forfeit all Estate and be thrown into Prison while both Wife and Children must be turned out of Doors and All For his House must be pulled down his Ground be plowed up and his Trees rooted out with loss of Franchise and with a perpetual Brand of Villany This is the Common Law for a perjured Iuror and that also in Petty Cases how much more might it be just in Case of Life and Death And for Corrupt Iudges our Law is very severe altho' we have much lost the Custom of the Grand Eyres in this also King Alfred be long since dead who hanged 30 or 40 more unjust Judges than Cambyses flead And for that the Mirror may be a good Comment on some Passages in Alfred's Life by Asser And if it be true that Horn lived to the end of K. Edward it is much wonder that on such occasion he did not also mention some of those Judges by him so punished when there was scarce any left but good Iohn of Mettingham and Elias of Bechingham And of this the Dissertations of Fleta may be added to all before as that of Sir William Thorp and the Great Judg in the third Part of Institutes about corrupt Iudges and the Iudge's Oath It is very considerable how curious the Iews were in Creating or rather Ordaining of Judges For indeed the Phrase of Ordination seemed to be first raised from Them For which I have little to add to Mr. Selden on the Eutychian or Alexandrian Antiquities as old as St. Mark the Evangelist Nor can it be denied but the Jewish Judges and Magistrates had a very good Right and so used as we find in the Books of Moses and the Kings and Tirshatha's to Read and Expound the Law Moral as well as Iudicial Nay in this they seemed to have some advantage of the Priests or Levites that had work enough most times in that which was but Ceremonial This may Expound those Pieces of Scripture Old and New where we find some explaining Scripture being neither Priests nor of the Tribe of Levi. And the Iews Punishments of evil Judges are severe and most remarkable nay where all others were again restored to their Offices after Corporal Punishment their Lord Chief Iustice or President of their Sanhedrim or any Chief Iustice could never be restored again after such punishment no not to be as one of his inferour Colleagues So just he ought to be and circumspect by daily experience added to his own wisdom Our Laws are so just and so good in themselves that there could not be be so much cause of complaints in all our Gates for such were the Iews Courts of Iustice if our Judges were such as they should and might be And yet I cannot deny but that there be very great abuses among the Lawyers and Attorneys or Solicitors but if the Judges were as just and wise as they may be inferiour Officers would soon amend or comply for Love or Fear so much as would prevent Complaints and many of their Causes But it is the work of a God and not of a Man to reform abuses in all Courts of Justice Hercules did never cleanse so great so foul a Stable or a Stall yet in this also a wise and just Parliament will do much and will need none of my help or advice How tender all should Delegates be in making Delegates But in nothing should they be more tender or more circumspect then in this of making Judges For in these of all Delegates our law is most scrupulous Before the Statute of Merton those that held by suit Service were bound to appear in Person because the Suitors were Judges in causes not their own but by that Statute they had power given to make Attorneys but it was only ad Sectas faciendas to make or follow