Act are declared absolutely void yet the said Lord Chief Justice likewise proves that this Clause of Non-obstante is void and he makes this out not only from constant practice in other Statutes of like nature but also from the opinions of Plowden and the said Lord Cook first as to the Statutes there is a Statute of the 23. of Henry the VI. that no man shall be Sheriff for above a year 2. That all Letters Patents made for Years or Lives shall be void 3. That no Non-obstante shall make them good which shews that the Parliament thought the King could otherwise have dispenc'd with this act by a Non obstante there is likewise in this Act a Penalty of 200 l. and the party is also disabled from bearing the Office of Sheriff in any County of England and also every Pardon for such Offence shall be void so that in all respects this Statute answers that of King Charles the II. now in dispute only in this the Penalty to the Prosecutor is higher viz. 500 l. and the disability is not only from holding that Office but any other whatsoever for the future And yet it was resolved by all the Judges of England in the second of Henry the VII in the Exchequer Chamber upon the Kings Power of Dispensing with this Statute of the 23. of Henry the VI. that the Kings Dispensation with that Statute was good and so it hath been held ever since for it is very well known that the King hath not only exercised this Prerogative of Dispensing with this Statute for divers Sheriffs holding more than a year but hath also granted this Office for Life aâ— appears by the same case cited by Plowden in his Commentaries between Grendon and the Bishop of Lincoln where he expresly says That notwithstanding this Statute of Henry the VI. the Kings Grant to the Earl of Northumberland to be Sheriff during Life ought to have a Clause of Non-obstante because of the precise words of the Statute before mentioned and with such a Clause of Non-obstante the Patent to the Earl was good But yet my Lord Cook is more express in his opinion concerning these Dispensations for in his twelfth Report he has these words No act can bind the King from any Prerogative which is sole and inseparable to his Person but that he may Dispence with it by a Non-obstante as a Sovereign Power to command any of his Subjects to serve him for the publick Weal and this solely and inseparably is annext to his person and this Royal Power cannot be restrained by any Act of Parliament neither in Thesâ— nor in Hypothesi but that the King by his Royal Prerogative may Dispence with it for upon the commandment of the King and obedience of the Subject do's his Government consist and therefore for this reason he allows this Judgment of all the Justices in England in the second of Henry the VII to have been according to Law that Judg'd the Kings Dispensation with this Statute of Henry the VI. to be good and he also instances in another Statute in the fourth of Henry IV. in which it is ordain'd That no Welshman should be Justice Chamberlain c. nor any other Officer whatsoever in any part of Walts notwithstanding any Patent made to the contrary with Clause of Non-obstante licet sit Wallicus natus and yet without question the King may grant those now Offices to Welshmen with a Non obstante and the said Lord Cook in Calvin's case tells us That the same was resolved by all the Judges of England viz. in 2. of Hen. VII that every Subject is by his natural Allegiance bound to serve and obey his sovereign c. and he then proceeds to recite the Statute of the 23. of Henry the VI. and the opinion of the Judges above mentioned and gives us this reason for it for that the act could not barr the King of the service of his Subject which the Law of Nature did give unto him This is there reported as the sense of all the Judges of England in King Iames his time and therefore since this has been ever the opinion of the Judges and a constant Prerogative exercis'd by the King ever since I desire you would shew me any difference why the Kings Dispensation to a Sheriff should be good for the holding of his Office for above a year norwithstanding the Statute of Henry the VI. and yet a Dispensation for the taking or holding any Office or Command Civil or Military without taking the Oaths and Tests appointed by the 25. of Charles the II. should be declar'd a breach of our Fundamental Laws for I can see no manner of difference between them since their preambles set forth the designs of the Law much to the same purpose viz. That of making the Statute of Henry the VI. is the insupportable damage of the King and his People Perjury Man-slaughter and great Oppression and in the Statute of King Charles the II. the mischiefs recited are of a much less nature viz. for preventing dangers which may happen from Popish Recusants and quieting the minds of his Majesties good Subjects So that the Subject of neither of these Acts being Mala in se but only Mala prohibita if the King might Dispence with the one he may certainly do as much with the other for the same reasons Therefore if this be so I need not say much against the second Article in the Declaration of the Convention against the Kings proceedings viz. His committing and prosecuting divers worthy Prelates for humbly Petitioning to be excused from concurring to the said assumed Power for if by the opinion of all or most part of the then Judges the Kings Power of Dispensing with this Statute of King Charles the II. was good it was certainly much more lawful in Dispensing with all other Statutes against Papists and Non-conformists since they are no more than bire Penal Statutes without any Clauses of Non-obstante and though I grant that King Charles's Declaration giving a Toleration to Papists and Dissenters by Dispensing with all the Acts against Masses and Conventicles were declared Illegal by the House of Commons in the year 1672. and that the King to get a good lump of Money did recal that Declaration yet was it never declared by him to be Illegal only that it should not be drawn into consequence for the future and you know an Address or Declaration of the House of Commons alone was never looked upon as a Declaration of Parliament and the opinion of the Judges hath ever been that no Statute or Judgment of Parliament can bar the King of his Lawful Prerogatives of which this of Dispensing with such Penal Laws is one so that it was certainly very undutifully done of the Bishops not only to deny distributing his Majesties Late Declaration for Liberty of Conscience in their several Diocesses but also to have the confidence to give him a Petition wherein they desir'd
against himself therefore if Richard the IIId had been a King in the sence of this Law we may be sure he would not have had such an infamous censure past upon him after his death Bradshaw and his High Court of Justice were the first that were so hardy as to pronounce a King of England guilty of Treason Fourthly If this notion of a King de facto had been allowed in the 11th of Henry the VIIth the Principal Assistants of Richard the IIId could not have been attainted for Richard being actually in the Throne he was according to your Modern way of arguing Rightful King and consequently the People ought to own him as such and defend him against all opposers and if so certainly they ought not to be condemned as Traytors for doing their duty as we find many of those were who fought for King Richard Fifthly at the end of this Parliament Henry the VIIth granted a General Pardon to the common people who had appeared against him in the behalf of Richard the IIId now Pardon supposes a fault and the breach of a Law which they could not have been charged with if the plea of a King de facto had been warranted by the Constitution F. I must freely tell you that you do not argue so much like a Lawyer in this Argument as you did in your former and you have in that forgot to what end those Statutes you mention were made and what is the purport of them or else some body hath misinformed you for though I grant that all those hard expressions you mention are given of the Kings of the Lancastrian Line in those Statutes of the 1 st of Edward the IVth yet do none of these expressions prove that they were not true and legal Kings in the eye of the Law all the while they Reign'd since divers Persons were attainted for High Treason against them whose attainders were never reversed but stand good to this day as in particular the attainder of the Earls of Kent Salisbury and of Huntingdon who were all attainted by Act of Parliament in the second of Henry the IVth and also the Earl of Northumberland and his Son the Lord Piercy attainted in the 5th of this King all which attainders were never reversed So likewise Richard Earl of Cambridge was found guilty of Treason by his Peers and his Attainder confirmed by Act of Parliament in the second of Henry the Vth and though it is true this Attainder was afterwards reversed in the first of Edward the IVth because the said Richard was not only his Grandfather but was also Condemned for endeavouring to make Edmund Earl of March his Brother-in-law King of England from whose Sister King Edward the IVth claimed the Crown yet the very reversing this Attainder by Act of Parliament declares it to have been good untill that Repeal since it was not declared void all which are plain and evident proofs that Treason may be committed against the King de facto and consequently that Allegiance is also due to him and not to the King de jure I have likewise also proved that all those Statutes which were made by those Kings and are not repealed stand good at this day without any confirmation by King Edward the IVth and this you have no way to answer but by instancing in Patents of Honour or Charters of Priviledges granted by those Kings and confirmed by Edward the IV th from whence you would inferr that some other Acts of like nature were in the same condition which let me tell you in no good argument against them for if you please to read that Statute of Edward the IVth you mention and you will there plainly see that the Grants Patents and other things there confirmed or either judicial Proceedings in the Courts of Justice or else such Charters or Patents which being thought to the prejudice of the Crown were ex abundanti cautela thought necessary to be confirmed by those particular Persons Religious Houses and Corporations who thought themselves concerned nor were all others of like nature who were not so confirmed thereby void since they hold good at this day and if you understand any thing of our Law you cannot but know that no Grants of the King can be made void by implication and to shew you farther that the Letters Patents made by Henry the VIth were looked upon as good in the Reign of Edward the IVth appears good from Bagot's Case in the Year-Book of the ninth of that King where a Patent of Naturalization granted by Henry the VIth though it were not confirmed by that Statute of Edward the IVth was by the greatest part of the Judges held to be good and the reasons there given for it are very remarkable since it was urged by the Council in behalf of the Plaintiff that King Henry was then King in Possession and it behoves that the Realm should have a King and that the Laws should be kept and maintain'd and therefore though he was in only by Usurpation nevertheless every judicial Act done by him concerning Royal Jurisdiction shall hold good and bind the King de jure when he returns c. So likewise a Charter of Pardon of Felony and Licenses of Mortmain shall be good and also the King that now is shall have the advantage of every forfeiture made to the said King Henry c. and mark this farther it is there also held that a Man shall be Arraigned for Treason done against the said King Henry in compassing his death and the reason is very remarkable because the said King indeed was not meerly a Usurper for the Crown was intail'd upon him by Parliament and this being not at all contradicted by the Court is still taken for Law and upon this report and not only upon the Statute of the 11th of Henry the VIIth did my Lord Coke found his Opinion I now mention'd that a King de facto was within the Statute of the 25th of Edward III. and though now it is true that the farther arguing of this Case of Bagots adjourned to a farther day when the Justices did not argue but the Serjeants and Apprentices at Law that is the Baristers as we now call them yet it seems to have been allowed by the whole Court that if King Edward who was then King had made his Charter before he was declared so it should be void at that time for every one who shall make a Charter of Pardon ought to be King in Deed at the time of the making thereof M. Pray Sir give me leave to reply to what you have now said against my first two Arguments before you go on to answer the rest for I confess the Authorities you bring seem so express against me that if I cannot take them off there will be no further need for your answering the rest I will not therefore deny but that all publick Acts and Proceedings at Law which are for the publick good and safety of the
still followed it even when the Barons proved most fortunate as in that of Henry the Third to the Earl of Gloucester and those of his Party and that of Edward the First to the Constable and Mareschal and their followers nay after the former Kings had been unjustly deposed we still find the Actors and Complices of such wicked Actions did not think themselves safe till they had an Act of Indemnity passed to them of all the Robberies and Murders they had committed in the War as your self have recited in the two Acts of Parliament in the Reigns of Edward the Third and Henry the Fourth Now if these Resistances had not been downright Rebellions in the Eye of the Law to what purpose were these Acts of Indemnity passed since no man needs a Pardon but rather merits a Reward for defending the Government Establisht according to Law F. In answer to this Objection for which I am already prepared since I foresaw you might make it pray give me leave to ask you whether you can find the words Treason Rebellion Robbery or Murder in any of these Acts of Pardon and if you cannot whether you think Treason or Murder could be pardon'd by general words or not and the reason why I ask this Question is because if they could not then the consequence will be that none of these Parliaments supposed that the Resistance that had been made or all the other Acts performed in pursuance of such Resistance were looked upon by those that had done them no nor by the Parliament it self to be Treason Rebellion or Murder since certainly those that were Actors in such Resistances and taking up of Arms having the power in their hands would not have fail'd to have had those words inserted into those Acts of Indemnity if they had supposed themselves guilty of those Crimes M. I cannot say that the words Treason and Rebellion or Murder are expresly mentioned in these Statutes since even the Actors in them did not think it for their Credits to own themselves to have been guilty of any such Crimes yet all the particular words and expressions in these Acts amount to the very same thing for the taking up Arms with one that is not King against him that is the actually seizing upon his Person and keeping him in hold was Treason at Common Law before the Statute of the 25th of Edward the Third and is not taking mens Goods by force and destroying their Persons in time of Peace Rebellion and Murder at Common Law So that if these were the Facts they had been guilty of and if these Acts were Treason Rebellion Robbery and Murder then certainly all Treasons Rebellions Robberies and Murders are likewise pardoned by those Statutes And tho' 't is true the Law is now that no pardon of Treason or Murder shall be good unless those Offences are particularly named yet this was so ordained by the Statute of the 13th of Richard the Second by which it is particularly provided that no pardon shall be allowed before any Justice for the death of a Man c. Treason c. unless the same Murder Treason c. be specified in the said Charter before which Statute Sir Edward Coke in his second Instit. tells us that by the pardon of all Felonies Treason was pardoned and so was Murder c. F. I cannot deny but that these Facts you mention were Treason in strictness of Law before the making that Statute yet does it not follow that even these may be in some cases justifiable as well as binding a King when he is out of his Wits if the publick Peace of the Kingdom and preservation of the Government according to the Fundamental Laws of the Kingdom require it Thus for example suppose King Iohn after he had made actual War upon his Barons and People had happened to have his Forces routed in the Field can any one believe that it had been unlawful for them to have secured his Person to prevent his making a new War upon them and yet this by the Letter of the Law had been Treason Now there are many actions which in strictness of Law are Treason yet being for the publick defence and security of the Nation deserve a pardon of course Thus if Forein Enemies should Land in England and a Neighbouring Nobleman or Gentleman who has no Command over the Militia of the Countrey should raise on the sudden such a Force of his Tenants and Neighbours as were sufficient to make ahead against them till the Militia of the Countrey could come in to their Assistance tho' this taking up of Arms without an Express Commission for it be a high Misdemeanour â—ay Treason according to your Principles yet I suppose you will not deny but that the persons engaged in it do not only deserve pardon but thanks for their Courage and so speedy Assistance of the Government And I remember I have read a famous Instance of this kind that when the Traytors concerned in the Powder-Plot found themselves discovered they fled into Warwickshire and thence into Worcestershire and were pursued and taken by the High Sheriff of that County in Staffordshire which tho' a great Misdemeanour since no Sheriff can justifie carrying the Posse Comitatus out of the County yet this was so well taken that King Iames the First rewarded him and as I take it Knighted him for his pains But to apply this to the matter in dispute tho' it is true taking and imprisoning the King's Person is Treason in the Eye of the Law yet as in the case of Edward the Second if the Government could not be restored to its pristine State without that extremity it must and will ever deserve a pardon and therefore you see the Parliament in the first of Edward the Third not only pardons but justifies the doing of it because done for that end So likewise the Statute of the 11th of Richard the Second Chap. 1. not only indemnifies but justifies the Duke of Gloucester the Earls Lords and all others of his Party for taking up Arms against the persons above-mentioned tho' maintain'd and back'd by the King himself as being done for the weal and safeguard of the Kingâ— the maintenance of the Crown and Salvation of the Realm So much for the Point of making War against the King and imprisoning his Person so that if taking up Arms for the safeguard of the King and Salvation of the Kingdom were just and necessary to be done the consequences of it viz. the taking of mens Goods and killing of these that resist them cannot be Robbery or Murder because done in a State of War which can never be carried on without such Acts of Hostility And therefore you see in the Act of Pardon to the Earl of Gloucester and to the Londoners granted in Parliament of the 51th of Henry the Third which I have now cited those that took part with thâ— King are as expresly pardoned as those that were with the
Earl and in the like pardon to the Constable and Mareschal in the time of Edward the First which I now also quoted those Lords would not own they had transgressed but the words are only etiam transgressiones si quas fecerit So that since such Reformations could not be brought about without violence and blood-shed and some Irregularities which in times of Peace could not be justified by the strict Letter of the Law it was but reason that for the quieting of mens minds and their future security they should be indemnified for what they had done with so good an intent and for the common good of the Kingdom But that such Acts of Pardon do not relate to the Titles such Kings had to the Crown but only to their being Kings in the Eye of the Law appears by a like Act of Pardon passed in Parliament in the first of Henry the Seventh to pardon and save harmless all those that came over with the King and all that helped him to recover his just Right to the Kingdom against King Richard the Third there called that Vsurper So that you may see such Acts of Pardon do not concern the just Titles of Princes nor the Justice of the War but are to quiet mens minds under the new Government whereas those that took part with the Usurper were not pardoned but left to the Law since the present Government would not take care for their security that had obstructed its settlement So the Act of Oblivion of the second of Charles the Second tho' it pardons Treasons expresly yet it as well pardons the Treasons of them that had Commissions from King Charles the First or Second as well as those that acted by Commissions from other pretended Authorities So that you see in the Judgment of this so modern a Parliament men might be supposed to be guilty of Treason tho' they had taken part with the King and had acted by â—is Commission if the things commanded were illegal M. I confess you have taken a great deal of pains to justifie taking up Arms against nay Imprisonment of our Kings when that which you call the preservation of the Government requires it that is when there is a â—action in the Kingdom strong enough to make a disturbance for it was very well said by Tacitus in the speech he makes for Otho to the Souldiers to take up Arms and kill Galba then Emperour that it was in vain to speak more for the justification of that Action quod Laudari non potest nisi peractum Treasons if successful have never wanted a sufficient Party in the Nation to make up a Parliament to countenance them and to pardon nay justifie all those that have been Actors in them as we may see by those Acts of Indemnity you mention and therefore I am not the more convinced that such Resistance was lawful notwithstanding those specious Declarations of Parliament of their being made for the publick good and preservation of the King and Kingdom But you have done very warily to pass by without any Justification the Deposition of King Edward the Second as also that of the Resistance as you call it of Henry Duke of Lancaster against King Richard the Second as also his Deposition tho' done in Parliament since all the proceedings against this King were repeal'd in Parliament in the first of Edward the 4th as appears by the Parliament Rolls of that King's Reign wherein the taking up Arms against King Richard by Henry Earl of Derby is said to be done contrary to his Faith and Legiance and his taking the Crown called Usurpation and the killing of King Richard his Soveraign Lord termed as it justly deserved Murder and Tyranny which does tho' not directly yet by consequence condemn his Deposition too since he is after that here called King and you do as warily pass by the late Rebellious War of the Long Parliament against King Charles the First as also his horrid Murder before his own Gates because you know cry well that this Doctrine of Resistance seldom stops with a bare Reformation of what is amiss but commonly ends with the Murder or Deposition of the King or else driving him from his Throne as we now find it by woful experience in the Person of our Unfortunate King who was so lately forced to quit this Kingdom for the security of his Person and therefore to put an end to this part of the Dispute the Parliament of the 13th of King Charles the Second were so sensible of the great Mischiefs that attended this Rebellious Doctrine as having been the destruction of one of the best Princes that ever Reigned and the occasion of the loss of so many brave Men besides the ruine of so many great and Noble Families that they were resolved to do their utmost to prevent it for the future and therefore the King and Parliament in the 13th and 14th of King Charles the Second passed those remarkable Acts concerning the Settlement of the Militia in the King and his Successors to take away all dispute about it tho' they declare it to have been his Ancient Right and therefore to take away all pretence for taking up Arms either by the Two Houses of Parliament or any other person whatsoever they in preamble to both these that these Acts thus expresly declare Forasmuch as within all His Majesties Realms and Dominions the sole Supreme Government Command and Disposition of the Militia and of all Forces by Sea and Land and of all Forts and Places of Strength is and by the Law of England over was the undoubted Right of His Majesties and His Royal Predecessors King and Queens of England and that both or either Houses of Parliament cannot nor ought to pretend to the same nor can lawfully raise or â—evy War offensive or defensive against His Majesty His Heirs or Lawful Successors and yet the contrary hereof hath of late been practised almost to the ruine and destruction of this Kingdom and during the late Usurped Governments many Evil and Rebellious Principles have been distilled into the minds of the People of this Kingdom which unless prevented may break â—orth to the disturbance of the Peace and Quiet thereof c. And in pursuance of this Statute it was likewise ordained by the Authority aforesaid in the 2d Statute for the Militia in the 14th year of the same King wherein not only the same preamble is recited verbatim as before in the former Statute but it is also Enacted That no person no not a Peer of the Realm shall be capable of acting as Lieutenant Deputy Lieutenant Officer or Souldier by vertue of this Act unless after the Oaths of Allegiance and Supremacy they take this Oath following viz. I A. B. do declare and believe that it is not lawful upon any pretence whatsoever to take Arms against the King and that I do abhor that Traitors Position that Arms may be taken by his Authority against his Person or
Heirs within age of such Tenants but this extended not to the Tenures of the Subjects by Knights Service as it appeareth by Bracton Dicitur Regale seâ—vitium quia spectat ad dominum Regem non alium secundum quod in Conquestis fuit adinventum c. Whereupon Sir E. C. notes in the Margent the Tenure as before it appeareth was not then invented but the fruits of this Tenure of the K. viz. Wardship and Marriage which was Bracton's meaning so as the Conqueror provided for himself but other Lords at the first by special reservation since the Conquest provided upon gifts of Lands for themselves Regis ad exemplum totuâ— componitur orbis wherein that which we had from the Conqueror we freely confess F. I shall not dispute his matter since it is doubtful whether this custom of Wardship was Norman or whether it was derived from the Saxons who possibly might have some respect to Orphans in such cases to train them up for the publick Service in point of War especially being possessors of a known right of Relief as well as Alfred the Saxon King did undertake the work for the training of some particular persons in learning for the service of the publick in time of Peace and Civil Government and tho' Sir H. Spelman is of opinion in his Title de Wardiâ— that Wardship of the Heir came in with the Conqueror yet Sir Iohn his son who was also a learned Antiquary in his Epilogue to his second book of K. Alfred's Life Printed at Oxford speaking of Military Fees granted to the Kings Thanes has this passage Haec etiam Fioda baeredibus sub Hereoti siâ—e relevaminis cujus piam quod haeres in terrae redemptionem Regi solvere tenebatur conditione plerumque transibat si haeres minor natu à Patre moriente relinquebatur Regi educatio â—jus utpoâ—â— Regis Hominis committebatur in utilitatem etiam commodum ipsius Regis But whether the Wardship of the Body of the Heir was in use in K. William's time or before is uncertain for the land is in the Charter of Henry the first in Mat. Paris granted either to the Widdow or next heir But let these customs be derived from whence you please it is a plain case it could be no badge of Conquest upon the People of this Nation and that by the Doctors own shewing for were it a Norman custom never so much if your Conqueror first of all imposed it upon those he brought over along with him it could never be a badge of Slavery upon the English Nation but rather upon the Normans upon whom it was chiefly imposed and if they afterwards granted Lands to the English upon the same terms they held them themselves they were no more Slaves to whom they were granted than they were under whom they held them but indeed this was so far from being looked upon as my badge of servitude that if the Dr. himself is to be believed these were the only Freemen and their services Bracton says were so notoriously free that in Writs of Right it was never mentioned because so well known Notandum in servitio Militari non dicitur per Liberum servitium ideo quod Constat Quia tale Servitium Liberum est And hower Rigorous the Feudal Law might be at the beginning it was when your Conqueror came in so far mitigated as to the rigour of it that the Tenants by Knight Service were not only free by K. William's Law from all Arbitrary Taxes and Tallies but also obtained a setled Inheritance to them and their Heirs as appears by that clause in K. William's Charter and therefore in the Reign of Henry the Third when William of Warren Earl of Surrey was questioned after the Statute of Quo Warranto by the Kings Justices by what Warrant he held his Lands pulling out an old Sword he answered to this Effect behold my Lords here is my warranty my Ancestors came into this Land with William the Bastard and obtained those Lands by the Sword and I am resolved with this Sword to defend them against any whosoever shall go about to dispossess me for the K. did not himself alone Conquer the Land but our Progenitors were sharers with him and assistants therein As for what you say That the Laws in the Customary of Normandy are the same with the Laws of England It is no more than what divers French Writers have taken notice of but do not attribute their agreement to their being borrowed from the Normans but quite contrary for in the first place most of the Learned Men say That the first establishing of the Customary of Normandy was in Henry the first 's time and afterwards again about the beginning of Edward the seconds time when Normandy was not under the King of England and Sâ—querius a French Author relates that K. Henry I established the English Laws in Normandy and with him do also agree Gulielmus Brito Rutilarius and other French Writers who mention also that the Laws in the Customary of Normandy are the same with the Laws collected by our English K. Edward the Confessor who was before the Conqueror an additional Testimony hereof is out of William de Reville de Alenson who in his Latin Comment upon the Customary proves and demonstrates that the Laws and Customs of Normandy came from the English Laws and Nation either not long before or after Edward the Confessor's time In the Customary there is a Chapter of Nampes or Distresses and it is there decreed that one should not bring his action upon any seisure but from the time of the Coronation of K. Richard and this must be our K. Richard the first because no K. of France was ever of that name and the words Nampes and Withernams were Saxon words taken out of the English Laws signifying a Pawn or Distress and in the same sense are used in the Customary But if you have nothing more to object against what I have now said pray proceed to your last head and let me see how you will prove that the English lost all their antient Liberties and Priviledges which they enjoyed under the English Saxon Kings M. I never heard so much before concerning the Original use of the French Tongue in our Reports and Law Books but yet this much I think you will not deny first that the Norman French was never used in our Courts of Justice till after the Conquerors entrance Secondly That he did his endeavour totally to root out the English Tongue by ordering of Children to learn the first rudiments of their Grammer in French and as for what you have said concerning the Customary of Normandy being especially as to Tenures derived from the English Laws and Customs I do not deny but that it may be the opinion of some French Writers that it was so but I shall believe it when they can prove that the Wardships and Marriage of the Heir of the
Rebellion for the Duke of Lancaster to take up Arms against King Richard the 2 d and to Depose him I cannot see why according to your own Principles it should not be the same crime in the Duke of York to take up Arms against King Henry the 6 th to whom he had more than once sworn Faith and Allegiance and having taken him Prisoner to call a Parliament whereby himself was declared Protector of the Kingdom and the Son of King Henry disinherited after a quiet possession in three descents during the space of above sixty years which if it will not give a thorough settlement after two Acts of Parliament to confirm it I know not what can M. I confess you have given me a more exact account of this transaction than ever I had yet and I should very much incline to be of your opinion were it not that I am satisfied that our Kings have a Right to the Crown by Gods Law as well as mans as also by the Law of Nature and that more than one Parliament have been of my opinion in this matter I shall shew you from several Statutes and Declarations of Parliament which though not Printed are yet to be seen at this day upon the Parliament Rolls for after that Henry the 6 th or rather his queen for him had broken the aforesaid solemn agreement made between this King and Duke in Parliament whereby it was accorded that if King Henry made War again upon the Duke of York he should then forfeit his present Right to the Kingdom during his Life whereupon Queen Margaret and her Son Prince Edward who would not submit to this agreement renewed the War and fighting another Battle at Wakefield the said Duke was slain but though he did not live to enjoy his right yet his Son Edward Earl of March again recovered it and having in the second Battle of St. Albans taken K. Henry Prisoner triumphantly Marching to London he there declar'd himself King and having immediately call'd a Parliament it was therein declar'd that all the proceedings against K. Richard the ad are repeal'd and the taking him Prisoner by Henry Earl of Darby was declared against his Faith and Allegiance and that with violence he had usurped upon the Royal Power and Dignity c. and that he had by cruel Tyranny Murther'd and Destroy'd the said King Richard his Liege and Soveraign Lord against Gods Law and his own Oath of Allegiance And then they proceed further to declare in these words That the Commons being of this present Parliament having sufficient and evident knowledge of the said unrightwise Usurpation and intrusion by the said Henry late Earl of Derby upon the said Crown of England knowing also certainly without doubt and ambiguity the Right and Title of our said Sovereign Lord viz. King Edward the 4 th thereunto true and that by Gods Law Mans Law and the Law of Nature he and none other is and ought to be their True Rightwise and Natural Leige and Sovereign Lord and that he was in Right from the death of the said noble and famous Prince his Father very just King of the said Realm of England and will for ever take accept and repute the said King Edward the â—ourth their Sovereign and Liege Lord and him and his Heirs to be Kings of England and none other according to the said Right and Title And that the same Henry unrightwisely against Law Conscience and the Customs of the said Realm of England Usurped upon the said Crown and that he and also Henry late call'd K. Henry the 5 th his Son and Henry Late called Henry the 6 th his Son occupy'd the Realm of England and Lordship of Ireland and exercised the Governance thereof by Unrightwise Intrusion Usurpation and no otherwise that the â—motion of Henry late called King Henry the 6 th from the Exercise Occupation Usurpation Intrusion Reign and Governance of the said Realm and Lordship done by our Sovereign Lord King Edward the 4 th was and is rightwise Lawful according to the Laws and Customs of the said Realm and so ought to be taken holden reputed and â—ccupied I have been the larger on this point because it is a full and free Declaration of the whole Parliament nor only against all past as well as future Parliaments having any thing to do in the disposal of the Crown but is also as express a Declaration as words can make against any Vacancy of the Throne upon the Death of the Predecessor and therefore I hope you will pardon me if I have been a little too tedious in reciting these Records F. I cannot blame you for being very exact in this point because the whole strength of your Cause depends upon it but yet I doubt not but to shew you that this Parliament was as much awed by King Edward's Power being now Conqueror as ever those Parliaments were that Depos'd Edward and Richard the 2 d for you your self have sufficiently set forth the manner of it that it was not till after a great Victory obtain'd against King Henry the 6 th and I never found in all my reading that a Victorious Prince ever wanted power enough to get a Parliament call'd to settle himself in the Throne and declare his Competitor an Usurper as I shall shew you more fully by and by but that this Act of Parliament which thus posiâ—ively declares Edward the 4 th to be their Sovereign Lord by God's Law Man's Law and the Law of Nature I think can no ways consist either with Scripture Reason or Matter of Fact for in first place I think I have sufficiently proved that there is no Divine Right of Succession for the Heirs of Crowns any more than of other Inheritances either by the Law of God or that of Nature and as for Man's Law I think I have here also proved that the Succession to the Crown by right of Blood alone was never establisht by any positive Law nor yet setled by any constant or interrupted Custom when this Declaration was made for the Crown had then never descended from Father to Son for above two Descents without a deposition or possessed by those who claim'd by Right of Blood without any other Title for as for the three Kings of the House of Lancaster I have already proved and your self must also own it that they could have no Title to the Crown but from the Acts of Entail of the 7 th and 8 th of Henry the 4 th above mention'd so that according to Man's Law that is Custom and also the Statute Law of this Kingdom the House of Lancaster had all that time the better Title But to shew you what uncertain things Parliaments are when King Edward the 4 th had Reign'd ten years he was driven out of the Kingdom by the Earl of Warwick's turning suddenly against him and in his absence he replaced King Henry the 6 th upon the Throne who had been all this while kept
Act of Parliament and therefore I must still tell you that you go upon a wrong ground when you suppose that there can be now any dispute who is rightful King of England since I have often told you that he can neither abdicate or forfeit his Right to the Crown and that no Parliament whatever much less a Convention could have any power to declare he had abdicated the Government and that thereby the Throne was become vacant for though I grant the judgement of the Estates of the Kingdom when legally assembled ought to be received with great submission and respect yet must it be only in such matters which they have a legal cognizance of and which they are impower'd by the Laws and Constitutions of the Kingdom to determine but since their Voting him whom you your self cannot deny to have been their lawful King to have abdicated the Throne when indeed he had not and then not only to declare the Throne vacant but also to place those therein whom you your self dare not affirm to be the next Heirs by blood are things quite out of their Element and beyond the Sphere of their Authority and though I grant that they may sometimes judge concerning the Succession of the Crown and who is next heir to it yet is this only to be understood as far as they judge according to the Common Laws of the Succession already laid down at our last Meeting and not when they go quite contrary to them and therefore though I own the Parliament might justly declare Henry the VIth to be an Usurper and consequently might be deposed yet doth it not therefore follow that they had a like right to declare Edward the IVth an Usurper and to pass an Act of Attainder against him as I confess they did after that Prince had held the Crown for ten years together since that was beyond their power to enact or declare by the fundamental constitution of the Government F. I am sorry your answer can afford nothing new but only the repetitions of the same false Principles and Arguments that have been already so often answered in our former Conversations for in the first place I have sufficiently proved that neither the Laws of God nor Nature have ordain'd any such thing as a lineal Succession of Kings or any irresistible or unforfeitable power in them which they can never fall from let them act never so tyrannically for I think I have sufficiently prov'd that not only in absolute Monarchies but also in limited Kingdoms where the King has not the sole Supream power a King may not only be resisted but may be also declar'd to have abdicated or forfeited his right to Govern in case of any apparent obstinate violations of the fundamental Constitution in those great points that make that Government to differ from a despotick Monarchy and that if they had not this right all their liberties will signifie nothing and their Lives Liberties and Estates would lie wholly at the Kings mercy to be invaded and taken away when ever he pleas'd I am forced to repeat this to remind you of the Reasons upon which those Principles are founded and therefore you do but fall into your old mistake when you affirm that by the fundamental constitution of the Government the Great Council of the Nation which was but the same with our late Convention had no power to declare the King to have broken the Original Contract between him and his People Therefore what you say concerning the want of Authority in this Great Council to declare the Throne vacant is altogether precarious unless you could also prove that it is against the fundamental constitution so to do whereas I have so far proved the contrary that the Throne has been declared vacant no less than eight times since the Conquest which makes up almost a third part of the Successions of all the Kings and Queens that have Reigned since that time so that if the custom and practice of Great Councils or Conventions and those not condemn'd by any subsequent Statutes can be the only Rule or Guide for the Consciences of all the Subjects of this Nation we have certainly had that as solemnly declar'd now as in any other Great Council or Convention that has been ever held in this Kingdom but as to what you say concerning the want of power in those Councils to declare or recognize who are the right Heirs to the Crown but not to make them so is very pleasant since that were all one as if two Men who contended for an Estate should bring the matter before the House of Peers and when that was done and the Case solemnly heard by Council on both sides that party who had lost the Cause should declare that this Court tho' the highest in the Kingdom had no power to judge in prejudice of himself who had an undoubted right to the Estate which were only to give the Lords power to give judgment only for one side and why the other Party if the judgment had been given against him should not have made the like Plea I cannot understand So that such a Judgement would be altogether in vain Therefore to apply this to our purpose though the Parliament being prevail'd upon by the strength and faction of the Duke of York did as I granted at our last Meeting declare that his Title could in no wise be defeated yet Henry the VIth being then in the Throne they might have certainly given a contrary judgement if they had pleased and then I suppose the Title of the House of York might have been so defeated as that the Nation had never been troubled with it again and so also when by the power of Edward the IVth a Parliament met and declared him to be lawful King from the time of his Fathers death yet when the said King was driven out of the Kingdom by the Earl of Warwick and King Henry the VIth restored to the Throne a Parliament was summon'd in the 49th of this King wherein Edward the IVth was declared an Usurper and himself attainted and to which Parliament the Duke of Clarence Brother to King Edward the IVth is first Summoned as well as the Arch-Bishop of Canterbury with all the other Bishops Temporal Lords and Judges of whom Littleton the Authour of the Book of Tenures was one so likewise upon King Edwards recovery of the Crown the year following King Henry was again deposed and a Parliament called wherein all the Dukes Earls and Barons with the Arch-Bishops of Canterbury and York and most of the rest of the Bishops Swore to Prince Edward after called Edward the Vth as Right Heir of the Crown Now I desire to know what other Law or Rule there was then for the Subjects Allegiance but the solemn judgement or declaration of the Estates of the Kingdom assembled in Parliament since their Acts and Judgements were in this dispute directly contradictory to each other so that it is evident
it would be left in her Power not only to govern her self but by marrying to chuse a King for her Subjects whom they do not approve of And therefore we read that in diverse of the Antient Kingdoms of the World Women were excluded from the Succession Nor are these the only questions that either might then or else have in latter Ages been started concerning Succession in Kingdoms and Principalities and have been the cause of great disputes between Pretenders to Crowns where a King Dies without Lawful Issue as whether a Grandson by a Younger Daughter shall inherit before a Grand-daughter by an Elder Daughter Whether the Elder Son by a Concubine before the Younger Son by a Wife From whence also will arise many Questions concerning Legitimation and what by the Laws of Nature is the difference betwixt a Wife and a Concubine All which can no ways be decided but by the Municipal or Positive Laws of those Kingdoms or Principalities It may further be enquired whether the eldest Son being a Fool or Madman shall inherit this Paternal Power before the Younger a Wise Man And what degree of â—olly or madness it must be that shall exclude him and who shall be the Judges of it Also whether the Son of a Fool so excluded for his Folly shall succeed before the Son of his Wiser Brother who last Reigned Who shall have the regal Power whilst a Widdow Queen is with Child by the Deceased King until she be brought to Bed These and many more such difficulties might be proposed about the Title of Succession and the Right of Inheritance to Kingdoms and that not as idle speculations but such as in History we shall frequently find examples of not only in our own but likewise other Kingdoms From all which we may gather that if the Laws of God or Nature had prescribed any set rules of Succession they would have gone farther than one or two cases as concerning the Succession of Elder Sons or Brothers where an Elder Son dies without Issue and would also have given certain infallible rules in all other Cases of Succession besides these and not have left it to the Will or particular Laws of diverse Nations to have established the succession so many several ways as I am able to shew have been practised in the World M. I must confess you have taken a great deal of pains to perplex the Succession to Adam which seems designed for nothing else but to make me believe that if Adam or any of his Sons were Kings or Princes it must have been by the Consent or Election of their Children or Descendants which is all one as to say that those Antient Princes derived their Titles from the Iudgment or Consent of the People the contrary to which is evident as well out of Sacred as Civil History F. Since you appeal to History to History you shall go and to let you see that I have not invented these doubts about Succession of my own Head and that there might have very well been a real dispute about the Succession to Adam in the Cases I have put may appear by the many disputes and quarrels that have been in several Nations concerning the Right of Succession between the Uncle and the Nephew of which Grotius is so sensible that he confesses in the latter end of the Chapter last cited that where it could not be decided by the Peoples Iudgment it was fain to be so by Civil Wars as well as private Combats and therefore he is forced ingenuously to confess that this hath been practised divers ways according to the different Laws and Customs of Nations and he gives us here a distinction between a direct Lineal Succession and a transversed and acknowledges that amongst the Germans as also the Goths and Vandales Nephews were not admitted to the Succession of the Crown before their Uncles the like may be said of the Saxons and Normans and therefore we find in our Antient English History that before the Conquest the Uncle if he were Older always enjoyed the Crown before the Nephew which I can more particularly shew you if you think fit to question it The like manner of succession was also amongst the Irish-Scotch for above 200 years after â—â—rgus their first King The like Custom was also observed among the Irish as long as they had any Kings amongst them and is called the Law of Tanistry The same was also observed in the Kingdom of â—astile where after the death of Alphonso the fifth the States of that Kingdom admitted his Younger Son Sancho to be King putting by Ferdinand de la Cerda the Grand-Son to the late King by his Eldest Son tho' he had the Crown left him by his Grand-Father's Will So likewise in Sicily upon the Death of Charles the Second who left a Grand Son behind him by his Eldest Son as also a Younger Son named Robert between whom a difference arising concerning the Succession it being referred to Pope Clement V. He gave Judgment for Robert the Younger Son of Charles who was thereupon Crowned King of Sicily and for this reason it was that Earl Iohn Brother to King Richard the second was declared King of England by the Estates before Arthur Earl of Brittain Son of Ieoffrey the Elder Brother and Glanvil who was Lord Chief Justice under Henry the second in that little Treatise we have of his makes it a great question who should be preferred to an Inheritance the Uncle or Nephew But as for Daughters whether they shall inherit at all or not or at least be preferred before their Uncles is much more doubtfull since not only France but most of the Kingdoms of the East at this day from Turkey to Iapan do exclude Women from the Throne And it was likewise as much against the Grain of the Antient Northern Nations and hence it is that we find no mention of any Queen to have reigned amongst the Antient Germans or Irish-Scots and never but two among the English-Saxons and those by Murder or Usurpation and not by Election as they ought to have done And upon this Ground it was that the Nobility and People of England put by Maud the Emperess and preferred Stephen Earl of Blois to the Crown before her for tho' he derived his affinity to the Crown by a Woman yet as being a Man he thought himself to be preferred before her So likewise in the Kingdom of Aragon Mariana in his History tells us that Antiently the Brother of the King was to inherit before the Daughter examples may also be given of divers of the other instances but these may suffice M. I Pray give me leave to interrupt you a little for by these examples you would seem to infer that these Laws about setling the succession of Crowns in several Kingdoms depended upon the Will of the People whereas I may with better reason suppose that if such Laws and Alterations have been in such successions they were made by
Second He gives us in his Prologue to his Treatise of the Laws of England this Testimony Leges namque Anglicanas liceâ—â—on Scriptas Leges appellari non videtur absurdum cum boc ipsum Lex sit quod Principi placet Legis habet vigorem â—as Scilicet quas super dubljs in conâ—ilio definiendis Procerum quidem consilio Principis accadente Authoritate constat esse promulgatas So likewise Bracton in his very first Chapter speaks much to the same purpose Cum Legis vigorem habeat quicquid de Consilio de Consâ—nsu Magnatum Reipublicae commâ—ni Sponsione Authoritate Principis prâ—ceâ—â—nte justè fuerit definiâ—um approbatum And also in his third Book Chap. 2. When he speaks of the Antient manner of making Laws in England he says Quae quidem fuerint approbate concensu utentium Sacramento Râ—gum confirmaâ—ae non possunt mutari atâ— destrui fine communi consensu utentium consilio eorum quorum consilio Consensu fuerint promulgata Where you may see these Ancient Authors plainly declare that nothing hath the force of a Law in this Kingdom but what is approved of and consented to by all Orders of Men either by themselves or their Representatives And which is very Remarkable Bracton supposes the King's Authority or Royal Sanction of a Law may precede the Consent of the Great Council which quite destroys that Notion That it is the Kings giving his last Assent which gives it the Essence and Vigour of a Law And with these more Antient Sages of the Law Fortescue also agrees in his 9th Chap. Dâ— Laudibus Legum Angliae where he says Rex Angliae Populum gubernaâ— non mera potesâ—â— to Regid sed politica Populus enim ijs Legibâ— guberâ—â—tur quas ipse fert c. What follows is word for word the same with what Bracton had before in his first Chap and therefore needs not to be Repeated so likewise in the 18 Chap. speaking of the Absolute Legislative Power of Kings in some other Kingdoms he thus proceeds Sed non Sic Angliae Statuta oriri possunt dum nelum Principis voluntate sed toâ—ius Regni Assensu ipsa conduntur quo Populi laesuram nequiunt vel non eorum Commodum procurare But if they after prove inconvenient he immediately adds Concito reformari ipsa possunt sed non fine Communitatis Proterum Regni illius Assensu quali ipsa primitùs emanarunt To which I may also add an Authority out of that Learned Author St. German who in his Dialogue called the Dr. and Student written in Latin in the 10th Chap. Entituled de Sexto fundamento Legis Angliae The Student thus speaks Sexium Fundamentum Legis Angliae sâ—at in diversis Statutis per Dominum Regem Progenitores suos per Dominos spirituales Temporales per Communitatem totius Regni in Parliamentis Editis ubi Lex Rationis Lex Diviâ—a Consuetudines Maxima sive alia fundamenta Legis Anglia prià s Sufficere minimè videbantur Where you see the Legislative Power is here Attributed to the Lords and Commons joyntly with the King And therefore my Lord Coke in his Notes upon the Statute of Westminster I calls it a Compleat Parliament as consisting of all the Estates necessary thereunto for says he a Parliament concerning making or enacting Laws Consists of the King the Lords Spiritual and Temporal and Commons and 〈◊〉 is no Act of Parliament unless it be made by the King Lords and Commons M. I shall not much concern my self with what your Common Lawyers either Ancient or Modern have writ upon this matter much less what Sir Edward Coke a known Enemy to the Kings Prerogative doth maintain Since I have as good or a better Authority than he viz. that of the Year-Book of 22 Ed. 3. Wherein it is expresly declared by divers Earls and Barons and by all the Justices in the Case of one Headlow and his Wife who had a Suit with the King That the King makes the Laws by the Assent of the Lords and Commons and not the Lords and Commons and that He could have no Peer in his own Land and that the King ought not to be Judged by them So that it is I think evident that the Laws are primarily and properly made by the King and that the two Houses have a Cooperation but no Co-ordination of Power with him And though at this Day I grant that Custom hath made the Assent of the Lords and Commons necessary to the passing of all Laws yet it is still the King's word or le Royâ—le veulâ— that makes them so and I much doubt whether even this were part of the Ancient Constitution of this Kingdom or not or proceeded at first from the Gracious Favour and Permission of former Kings as I could shew by the whole Series of Councils in the Saxon times if it were not too tedious to mention them particularly therefore I shall only Select some of the most Remarkable For though I confess the English Saxon Kings performed all Great and Considerable things by the Counsel and Advice of their Bishoâ—s and Noblemen comprehended under the general names of Wits yet you will find by the Titles of almost all the Councils in Spellman Lambard and that these Kings alone made their Laws though by the Advice and Council of their Wittena Gemote which was then no other than the King 's Greater Council Since He called what Great Men and Bishops he pleased to it and omitted the rest And it is never mentioned that they were made by their Consent as necessary thereunto Nay sometimes we find that some of the Ancient Saxon Kings made Laws without the Assent of their Great Council Thus Offâ— King of the Mercians being at Rome out of his Royal Munificence gave to the Support of the People of his Kingdom that should come thither a penny to be paid Yearly for ever out of every Family by all whose Goods in the Fields exceeded the value of Thirty pence And this He made a perpetual Constitution throughout all his Dominions excepting the Lands Conferred upon the Monastery of St. Albans This Imposition and Law continued a long while in force though we find it not Confirmed by any great Councils in the time of his Successors only in the Laws of King Edgar and King Edward it is enjoyned to be paid as the King's Alms which implies it was the King's Gift and that Solely without the consent of a Great Council But to give you a more particular Proof of the Supream and Absolute Power of our Saxon Kings as well during the Heptarchy as afterwards in making ad establishing Laws I shall begin with the first we have extant which are those of Ina King of the West-Saxons who began his Reign Anno. 712. In the Preface to his Laws we find it thus express't which I shall render out of the Saxons Copy Published by
particularly to the 55 th Law of William the First part of which I have already cited it begins thus Volumus etiam ac firmiter praecipimus concedimus ut omnes liberi homines totius Monarchiae Regni nostri praedicti habeaâ—t teneant terras suas pâ—ssessiones suas bene in pace libere ab omni exactione injusta ab omni Tallagio ita quod nihil ab ois exigatur vel capiatur nisi Servitium suum liberum quod de jure nobis facere debent facere tenentur prout statutum est eis c. So that whatsoever was done at any time contrary to this Statute was illegal and consequently ought not to be quoted as any part of the King's Prerogative But that the Nobility and People of England had divers Rights and Liberties before the time of King Iohn and of his granting that Charter appears by its conclusion in these words Salvis Archiepiscopis Abbatibus Prioribus Templariis Hospitalarâ—is Comitibus Baronibus Militibus omnibus aliis tam Ecclesiasticis Personis quam secâ—laribus libertatibus quas prius habâ—erunt And as for the rest of the Liberties granted by this Charter tho they are said to have been granted from the King 's meer good will yet that is recited only to make it more strong against himself since the Nobility and People of England claimed those Liberties as their ancient undoubted Right And the same Author as I have already hinted expresly tells us that this Charter contained Maxima ex parte leges antiquas And a little lower he relates where those Liberties were to be found Capitula quoque legum libertatum quae ibi Magnates confirmari quaerebant partim in Charta Regis Henrici superius scripta sunt partimque ex Legibus Regis Edwardi aâ—â—iquis excerpta So that they were not only the effect of the King 's meer Grace and Favour as you suppose But if you please now to descend to the Reign of Henry the Third and so downward from which time our Eldest Printed Statutes bear Date let us see if I cannot answer all those Arguments which the Gentlemen of your opinion have thence brought for the King 's Sole Legislative Power M. Tho I do not allow of your notion of the Conqueror's not being properly and really so as I shall shew you another time when I shall more particularly consider that Argument of the Right of Conquest in King William and all his Successors therefore I do at present readily assent to your Proposal and it was the very thing I was coming to And therefore I shall begin with the Magna Charta of Henry the Third which begins thus Know ye that We of our Meer and Free Will have given these Liberties The Statute de Scaccario Anno 51 Hen. 3. begins thus The King commandeth that all manner of Bayliffs c. The Statute de Districtione Scaccarii made the same year runs thus It is Provided and Ordained The King willeth The Statute of Marlbridge 52 Hen. 3. And he i. e. the King hath appointed all these Acts Ordinances and Statutes to be observed of all his Subjects If we come to the Reign of his Son Edward I. and begin with the Statute of Westminster I. it is there said in the Preamble These are the Acts of King Edward I. made at his first Parliament by his Council and by the Assent of the Archbishops Bishops c. And in the first Chapter 't is said The King hath Ordained and Established these Acts. And tho I grant that in divers Statutes of this King at in this of Westminster it is recited that the King by the advice of his Counsel or Assent of the Archbishops Bishops Earls Barons c. have Made Provided Ordained or Establisht such and such Laws yet it is plain that the Enacting or Decreeing part is wholly ascribed to the King in all those Statutes wherein such words are found as I shall make it appear more plainly by the Statute of Act on Burnel made in 13 Edw. I. where it is said The King by himself and all his Council hath Ordained and Established And in the Statute of Westminster 3.18 Edw. I. Chap. I. Our Lord the King in his Parliament at Westminster at the Instance of the Great Men of the Realm hath Granted Provided and Ordained In the Statute De iis qui ponendi sunt in Assizes 21 Edw. I. Our Lord the King in his Parliament holden c. hath Ordained that c. The Statute of Quo Warranto 18. Edw. I. runs thus Our Lord the King at his Parliament holden at Westminster of his special Grace and for the Affection he beareth unto his Prelates Earls and Barons hath granted That c. I Edw. II. begins thus Our Lord the King hath Granted The Statute of Gavelet 10 Edw. II. begins thus It is provided by our Lord the King and his Iustices The Statute of Carlisle 15 Edw. II. begins thus The King unto the Iustices of his Bâ—nch sendeth Greeting Whereas of â—ate We have Ordained c. But if we come to the Reign of his Son Edw. 3d. The Prefaces to most of the Statutes made in his Reign run thus Our Lord the King by the Assent of the Prelates Earls c. and at the Request of his People hath granted and established or else at the Request of the Commonality hath ordained c. The like Stile continued during the Reigns of Richard the 2d Henry 4th and Henry 5th with very little Alteration only it was commonly at the Request of the Prelates Dâ—kes Earls and Barons and at the Instance and Special Request of the Commons the King hath Ordained c. Whereby we see a plain difference in the Phrases of the Statutes of those times for it is the Lords that give their Assent whereas the Commons only Petitioned but it is the King alone who Ordaineth and Establishes I confess indeed that under some Princes of bad Titles as in particular under the Minority of Henry 6th there began some Alteration in the form of penning the Enacting part of most Statutes that were then made and that unto those usual words which were inserted ordinarily into the Body of the Acts from the beginning of the Reign of that King viz. by the Advice and Assent of the Lords Spiritual and Tempâ—ral and at the Special Instance and Request of the Commons there was added by the Authority of the said Parliament But it is still to be observed that though these words were added to the former Clause yet the Power of Granting and Ordaining was still acknowledged to belong to the King alone as appears by these Acts of Parliament of that King viz. the 3d. Henry 6th Ch. 2. 8th Hen. 6. Chap. 3. Where it is said our Lord the King by the Advice and Assent and at the Request aforesaid hath ordained and granted or Ordained and Established by the Authority of this Parliament And thus it generally
ordinationes totius Regni Angliae fuit mensura Domini Regis composita But farther to convince you that in the Opinion of the Lord Chancellour and those Learned Judges who framed the Writs that were issued out upon any of these Antient Statutes you will find that they who lived in those very times believed that those Statutes were made not by the K. alone but by him and the Common Council of the Kingdom which Writs as you may see in the Register of Writs run thus Rex Vicecom c. Salut Si A. fecerit c. tunc summonias c. B. quod sit coram Iusticiarijs c. Ostensuris quare cum de Communi Concilio Regni Nostri Angliae provisum sit c. as you may see in the Writs Granted upon the Statutes of Magna Charta Marlbridg Merton Glocester c. which have all of them this or the like Recitals cum de Statuto or juxia formam Statuti de Communi Concilio Regni nostri Ang. inde provisi The like Instance I could give you upon the Statute of Marlbridge and divers other Old Statutes in which the King by the Statute it self seems only to have Enacted it and yet you may see that our Sages of the Law were very well Convinced that those Statutes were made not by the King alone but by the whole Common Council of England So that there is no avoiding the Conclusion that the Great Council or Parliament had then a Great Share in the Legislative Power unless you can suppose the King alone to have bin the whole Common-Council of the Kingdom mentioned in these Writs But as for the rest of your Instances of Edw. 2d and Edw. 3ds times I think I can shew you that there is no General Rule to be drawn from some few Examples For though it is very true that the first of Edw. 2d begins thus Our Lord the King hath granted c. Yet it is plain by the Statute it self that it was made in and by Parliament The like I may say of the rest of the Statutes of this King's Reign though they do not all agree in Form as you may see by the Statute of Sheriffs 9th Edw. 2d Our Lord the King by the Assent of the Prelates Earls Barons and other Great Estates hath Ordained and Established And though you would fain draw some mighty Consequence from those Phrases in the Statutes of Edw. 3d. and many of his Successors by the Assent of the Lords and at the Request of the Commons as if the Consent of the latter were not as necessary as the former Yet indeed it is a meer difference in Form and proceeds only from hence that that Estate which found it self grieved always Petitioned the King for Redress and which amounted to as much as a Consent For you shall always find that the Petitioning Part still refers to that Body which was then oppressed without giving any other Assent For certainly their Requesting to have an Act made doth necessarily express their Consent And to prove what I have now said by Examples pray see the 8th of Hen. 6. c. 1. Where it is Recited in the Preamble that our Soveraign Lord the King Willing Graciously to provide for the Security and Quiet of the said Prelates and Clergy at the Supplication of the said Prelates c. and of the Assent of the Great Men and Commons aforesaid hath Ordained and Establishs't where you may see that the Assent of the Prelates is not here at all mentioned because it was needless as being made at their Request And if Praying and Requesting should destroy the Legislative Power I doubt whether Edw. 3d. did not give away his when in his 14th Year in a Statute concerning the Subsidy of Wools The Preamble runs thus nevertheless the King prayeth the Earls Barons and all the Commonalty for the Great Business which he hath in Hand c. that they would grant him some Aid upon Wools Leather c. Where upon Deliberation being bad the said Prelates Barons and Commons of the Kingdom have Granted him 40 Shillings to be taken on every Sack of Wooll But to return to the Matter to let you see that not only the Commons but also the Lords have bin oftentimes Petitioners as well as the Commons Pray see these Authorities The 1 is the Statute of Provisors 27 Edw. 3d. runs thus Our Soveraign Lord the King with the Assent and Prayers of the Great Men and the Commons of the Realm of England hath ordained c. And in the 4th of Ed. 4th i. e. It is Recited thus The King by the Assent Advice Request and Authority of his Lords Spiritual Temporal and Commons c. hath Ordain'd and Establisht in the Preamble of the Statute of 1. Edw. 6. c. 4. it is thus Wherefore the King our Soveraign Lord minding and entirely desiring at the Humble Petition and Suit of the Lords and Commons in this present Parliament Assembled doth Declare Ordain and Enact by the Assent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by the Authority of the same And that the Assent of the Commons was always necessary to the making of Laws not as bare Petitioners but as Assenters too as well as the Lords appears by this Protestation or Declaration of the Commons to Edw. 3d. which is still to be found in the Parliament Rolls of 51. of that King which I shall read to you in English out of the Law-French which perhaps you are not used to Also the said Commons do Petition our Lord the King that no Statute or Ordinance may be made or Granted at the Petition of the Clergy unless it be by the Assent of the Commons Neither that the said Commons should be obliged by any Constitution which they may make for their Advantage without the Assent os the said Commons For they will not be obliged to any of your viz. the Kings Statutes or Ordinances made without their Assent M. I do not deny but that the Assent of the Commons as well as Lords hath bin allowed as necessary for a long time But whether the Consent of either at first was so is a great doubt since we find the first Ancient Statutes as I have already observed to have bin made wholy by the King alone And I think the most Ancient Laws are the best Interpreters of the Original Legislative Power And thence it appears that many Provisions Ordinances and Proclamations made heretofore out of Parliament have bin always acknowledged for Laws and Statutes We have among the Printed Statutes to this purpose one called the Statute of Ireland Dated at Westminster the 9th of February 14 Hen. 3d. Which is nothing but a Letter of the King to Gerard Fitz Maurice Justiciar of Ireland The Explanations of the Statute of Gloucester made by the King and his Iustices only were received always for Statutes and are still printed with them Also the Statute made
you may remember by these words Cum Legis vigorem habeat quicquid de Câ—nsilio de consensu Magnatum Reipublicae communi Sponsione Authoritate Principis praecedente juste fueriâ— definitum But further to let you see how much you are out in your Argument whereby you would prove from the Form of our Indictments of Treason c. That the King hath the Sole Legislative Power of the Kingdom I shall shew you that all our Ancient Laws as well Common as Statute do declare the contrary Since divers Aâ—ts of Parliament have expresly affirmed that such and such Offences were Treaâ—on not only against the King but against the King and the whole Realm too Pray take these instances see the Statute 1 Edw. 3. c. 1. Wherein Hugh de Spencer both the Father and Son are by the King and Parliament declared Traitors and Enemies of the King and of his Realm See likewise 28 Hen. 8. c. 7. Wherein the Crown is setled by Act of Parliament on the Heirs of his Body begotten on Queen Jane or by any other after Marriage and that the Offenders that shall interrupt such Heirs in their Peaceable Succession they with their Abbeâ—tors Maintainers c. shall be declared and adjudged High Traytors to the Realm And therefore divers Ancient Indictments in Stanfords Pleas of the Crown are laid contra pacem Regis Regni And that the Parliament hath reserved to it self a Power by the Statute of the 25th of Edw. 3d. to Determine what Crime shall be Adjudged Treason besides Conspiring to kill the King and those other Offences specified in the same Statute you may Consult the Statute at large But that these Offences can be no other than an endeavour to alter the Government or Fundamental Laws of the Kingdom I think is evident since all Offences relating to the Lives or Honour of the King Queen and their Eldest Son are there particularly specified and it was by Virtue of this Statute that the Late unfortunate Earl of Strafford was first impeached by the Commons and afterwards Attainted by Act of Parliamenâ— in the Year 1641. but whether justly or not it is not my Business now to determine it is sufficient that it was then granted by the King himself that if the Earl was really Guilty of Destroying the Government and Introducing an Arbitrary Power he might have bin deservedly Condemned But that the Power of Making and Dispensing with Laws is particularly applyed not only to the King but to the Lords Spiritual Temporal and Commons pray remember the Preamble of the Statute I have already cited of the 25th Hen. 8. c. 21. wherein it is so expresly declared as also by the 24th of this King Chap. 12. the Preface of which Statute runs thus And whereas the Kings most Noble Progenitors and the Nobility and Commons of the said Realm at divers anâ— sundry Parliaments as well in the time of King Edward 1st Edward 3d. Richard 2d Henry 4th c. made sundry Ordinances Laws Statutes and Provisions for the entire and sure Conservation of the Prerogatives Liberties and Preheminences of the said Imperial Crown of this Realm c. where pray note that the making of all these Statutes is ascribed to the Lords and Commons as well as to the King Which is also farther acknowledged by the said King Henry when in a Set Speech to the Parliament Reported by Crompton in the Case of Errours he said these words We being informed by our Iudges that We at no time stand so highly in our Estate Royal as in the time of Parliament wherein we as Head and you as Members are Conjoyned and knit together into one Body Politick And sure then if the King's Simile be true whatsoever Functions are performed by the whole Body must be done by the Members as well as by the Head I shall Sum up all I have said into this Syllogism That Power which cannot make or Enact any new Law without the Advice and Consent of two other Bodies is not the Sole Legislative Power But the King is that Power which cannot c. Ergo the King is not the Sole Legislative Power M. I shall not longer Dispute this Question with you Since I own the two Houses have Claimed for some Ages past a Share in the Legislative tho' in a large and improper Sense as you your self do partly grant And though for the more just and equal Course our Kings have for a long time admitted the 3 Estates viz. the Lords Spiritual Temporal and Commons into a seeming Share of the Legislative Power Yet this was not by Constraint nor by any Fundamental Constitution of the Government as you suppose but only from their own meer Grace and Favour to make Laws by the Consent of the whole Realm because that no one part thereof should have any Cause to complain of partiality And though I grant the King is bound to observe these Laws when made by vertue of his Coronation-Oath so as that he cannot alter them without their Consent yet is he still above the Law by Virtue of his Absolute Monarchical Power and is not Subordinate to it or so bound by it as to be Responsible to the People for any Breach committed by him upon it for that were Derogatory to the Soveraign Power and inconsistent with the Nature of Monarchy and were to set up the Law which is but a Creature of the Prince's making above his Soveraign Authority And this would make our Monarchy a Kind of Government which would neither be Monarchical nor yet a Republic but some Mungrel thing made up of both So that I take the Notion of a mixt Monarchy to be a Contradiction in adjecto A limited Monarchy I confess there may be either by the Monarch's own Voluntary Grant or Consent as in this Kingdom or else on Conditions imposed upon a Prince by others either by a Foreign Power as in Tributary and Feudatary Kingdoms or else by the Natives of the same Country as in some Elective Kingdoms and Principalities but then such Limitations of Monarchical Power represent a Prince as it were fettered and who cannot Act as he would and ought for the Advantage and Wellfare of his People if he had his Liberty and the full Exercise of his Soveraign Power And therefore in most Governments limited after this manner the Soveraignty still remains in the Senate or Pâ—ople that Elected him which makes me think it Solecism in Politicks to affirm that a Monarch properly so called and still continuing so could be thus limited by Laws or Fundamental Constitutions as you call them at the first Institution of the Government For if he were thus limited that Power that could thus limit him must be either Superior or Inferior to him Superior it could not be because both the Prince and the People that could put those Conditions or Limitations upon him could not be his Superiors in the State of Nature before they made him King neither could they be
will not affirm that the Ecclesiastical Authority of Bishops as to their Right of meeting in publick Synods or Councils is derived from the Crown But the Truth is the Sense of this Statute is no more then that all such Iurisdiction is immediately derived from the King though Originally from the People which Fortesoue calls Potestatem à Populo effuxiam and by them intrusted with him as the Supream Magistrate to Distribute it to all Inferior Courts which yet he cannot at this Day Create anew without an Act of Parliament so that this will not extend to the whole Assembly of the Estates themselves Since I doubt not but to prove by undeniable Testimony that that Constitution is as Ancient as the English Nation it self M. I see you have a mind to wrest the true sense of this Statute by a forced Interpretation but I hope at our next meeting to prove to you that our first Saxon and Norman Kings were Absolute Monarchs and that not only all the Liberties and Priviledges we enjoy but also our Civil Properties were wholy derived from him and if so it will also necessarily follow that all Difference and Distinction in Honour or Power by which the Bishops and Temporal Lords can claim to Sit in Parliament is wholy derived from those Kings For as to the Commons I need not go so high for their Original since it is the Opinion of our best Antiquaries and I think the Learned Dr. Brady hath sufficiently proved it against Mr. Petyt that they are no Ancienter than the latter end of Henry the 3ds or perhaps the 18th of Edw. the 1sts Reign Nor do the Authors you have quoted for the Independant Authority of Parliaments viz. â—â—acton and the Mirrour mention any other than the Curia Baronum or that of Counts or Earls as the Author of the Mirrour hath worded it by which can be meant no other than the House of Lords for as to that of the Commons had they bin then in Being or had they had any thing to do in the Government it is not likely these Ancient Authors as well as our Acts of Parliament of those times would have omitted particularly to mention them So that the higher I go and the more I look on the History of our Ancient English Kings the more Absolute I find their Power and the less dependant upon the People Therefore I have very great reason to believe that our first Kings were Absolute Monarchs not only by the Original Constitution of Parliaments but also that our very Liberties and Properties proceeded at first from their meer Grace and Pavour F. I know you have Asserted the same things more than once All the Difficulty lies in the Proof And therefore I would not have you be too positive or rely too much upon the conciseness or Silence of the Ancient Monkish Writers of those first times For since as I own they have never given us any exact account of our Ancient Civil Government nor yet of the History of their own times We are forced for the most part to pick out the Truth from other Circumstancâ—s or such Passages as we can meet withal in their Ancient Laws and Customs nay sometimes from those of their Neighbours who lived under the same kind of Government and Laws with our Saxon Ancestors as proceeding from one Common Stock or Original as I shall shew you before we have done But since we are already in Possession of our Ancient Laws and Liberties and of a Right to Parliaments once every Year or oftner if need be by two Ancient Statutes yet in force at farthest once every three Years by a late Act of Parliament it ought to be your Task to prove to me the Absolute Power of our first English Monarchs and by what Steps and Degrees they came to part with their Power and to be thus limited as we now find them and when you can shew me this I do assure you I will come over to your Opinion M. I shall observe the Method you prescribe And therefore to begin with the first Entrance of the English Saxons into this Island I suppose you are not Ignorant of so Common a piece of History that all the Title they had to this Island was by the Sword or Conquest of their first Princes or Generals who being sent by Lot together with the Armies that followed them out of their own Country because it was too narrow or barren to sustain such great Multitudes they came over hither to seek new Dwellings Now whether these Princes were made Kings before they came over or that they made themselves so immediately after their Conquest will be all one since if we consider them as Military Captains or Leaders of Armies their Power was Absolute as that of all Generals ever was and must be by the necessary Laws of Military Discipline If we look upon them as Kings or Princes as it is very likely they were also before they came over since they were certainly of the Blood Royal all of them deriving their Pedegree from Woden their God as well as first King being thus made Kings by their Fathers or other near Relations there is no Ground to believe they owed their Titles to the Votes or Suffrages of their followers But after they had Setled a Heptarchy or Seven Kingdoms in this Part of Britain called England We find them Governing and Leading their People like Absolute Kings and Monarchs over their little Principalities And since each Kingdom was Conquered from the Britains under the Conduct according to the Laws of Nations and Right of Conquest all the Lands of each Kingdom belonged to the Conquerors who though they cantoned them out into shares to their Captains and Souldiers according to each Man's Valour or Desert Yet did this wholy proceed from their Bounty and Favour who might have kept the whole to themselves if they had pleased and hence it is that not only since the Norman Conquest but also long before all the Lands of England were holden of the King as the Supream Lord And if so I suppose you will not deny but that according to your own Principle all our other Priviledges and Liberties must have been derived from him since you have already Asserted that whoever is Lord of the Soil of a Country he is so also over the Persons of the People F. Before you proceed any farther I pray give me leave to answer what you have now said I doubt with greater shew and appearance of Truth than the matter will justly bear when well canvassed But since I grant our earliest Writers are very short in giving us the true Form or Original Constitutions of our Ancient Saxon Government it is necessary we look into the Roman Authors who treat of the Laws and Customs of the Ancient German Nations a Stirp of whom our Ancient English Saxons certainly were and in those Authors you will find that they as well as other Nations of the Gothic Original were
Constitution to have bin in all the Neighbouring Kingdoms in Europe which have bin raised according to the Gothic Model of Government upon the Ruins of the Roman Empire now let us look into Scotland and there we shall find this Institution as Ancient as any History or Record they have If we pass into France we shall find their Assembly of Estates or Great Council to have bin as Ancient as their first Kings and to have had as much Power as any where else in Europe Since they not only frequently Elected but also Deposed their Kings of the first Race and disposed of the Succession of the Crown as they thought fit If we look into Spain we shall find in the two greatest and most Considerable Kingdoms viz. Castile and Arragon the like Assemblies the Power of which was so great in the latter that they could even Depose the King himself if he Tyranniz'd over or Oppress 't them If we go more Northward we shall find in the Ancient Kingdoms of Denmark and Sweden and Norway that their Assembly of Estates or Dyets Elected their Kings and could likewise Depose them till those Kingdoms became Hereditary which was but of modern times I shall omit Poland because perhaps you may dispute whether it is a Kingdom or a Commonwealth But if we pass into Hungary which was Instituted by the Huns a Nation of Gothic Original we shall find not only the like Assembly of Estates as in the other Kingdoms but also that they had a Magistrate called the Palatine who was as it were the Conservator of the People's Liberties and who could Resist even the King himself if he invaded them and which is also very remarkable in all these Kingdoms except Denmark the Representatives of the Cities or Principal Towns which constituted the third Estate or Commons in those Kingdoms had always a place in those Great Councils So that to conclude it is almost impossible to conceive how these Kingdoms I have now mentioned could all agree to fall into the same sort of Government about the same time unless it had proceeded from the particular temper and Genius of the Germane and Gothick Nations from which they were derived Or who can believe that all these Nations and their Kings finding the like Conveniences from these Great Councils and Inconveniences by the want of them should all Conspire to set them up in each of these particular Kingdoms M. I will not deny but that the Institution of Great Councils or Assemblies of the Estates might be as Ancient as the Government it self in several of those Kingdoms you mention which were at first Elective but what is that to England where our Monarchy hath bin by Succession from the first Institution of it and not Elective as you suppose Nor do I much value the Authority of the Mirrour as to the Great Antiquity he Ascribes to this Assembly of Counts or Comites as Bracton calls them and in which by the way no Commons are mentioned And tho I grant the Iudicial Power of the House of Peers is very Ancient Yet that it wholy proceeded at first from the Indulgence of our Kings appears from hence that there was always a necessity of the King's Presence in Parliaments which is very well proved by Sir Robert Cotton in a Learned Treatise written on that Subject wherein he proves that in all Consultations of State and Decisions of private Plaints it is clear from all times the King was not only present to Advise but also to Determine And whensoever the King is present all Power of Iudging which is derived from his ceaseth the Votes of the Lords may serve for matter of Advice the Final Iudgment is only the Kings But indeed of late years Queen Mary and Queen Elizabeth by reason of their Sex being not so fit for publick Assemblies have brought it out of use by which means it is come to pass that many things which were in former times acted by Kings themselves have of late bin left to the Iudgment of the Peers who in quality of Iudges Extraordinary are permitted for the Ease of the King and in his Absence to determine such matters as were Anciently brought before the King himself sitting in Person attended by his Great Council of Prelates and Peers And the Ordinances that are made there receive their Establishment either from the King's Presence in Parliament where his Chair of State is constantly placed or at least from his Confirmation of them who in all Courts and in all Causes is Supream Iudge All Judgments are by or under him and cannot be without much less against his Approbation The King only and none but He if He were able should judge all Causes saith Bracton so that nothing seems plainer to me than that the Iurisdiction which the House of Peers have hitherto exercised for the Hearing and Determining all Causes as well Civil as Criminal by way of Appeal not only between Subjects but also in all Accusations against the Lords themselves proceeds wholy from the Kings which may appear by an Ancient Precedent mentioned by Abbot Brampton in his History It is the Case between King Edw. the Confessor and Godwin Earl of Kent whom the King accused for the Death of his Brother Prince Alfred before the House of Peers and there you will find that after the Earl had put himself upon the Iudgment of the Kings Court the King thereupon said You Noble Lords Earls and Barons i. e. Thanes of the Land who are my Liege-Men now gathered here together and have heard my Appeal and Godwin's Answer I will that in this Appeal between us ye Decree Right Iudgment and do true Iustice And upon their Judgment that the Earl should make the King sufficient Satisfaction in Gold and Silver for the Death of his Brother the King being thereof informed and not willing to contradict it the Historian there sayeth He ratified all they had judged I could give you many other Precedents of latter Date were it not too tedious But this is sufficient to shew that what the Pâ—ers acted in this matter was by the King 's Sole Will and Permission I shall only conclude with one Precedent more in Case of some what alike Nature It is that of Hen. Spencer Bishop of Norwich 7 Rich. 2d who was accused foâ— joyning with the French The Bishop complained what was done against him did not pass by the Assent and Knowledge of the Peers whereupon it was said in Parliament that the Cognisance and Punishment of his Offence did of Câ—mmon Right and Ancient Custom of the Realm of England solely and wholy belong to our Lord the King and no other From all which I infer that the Iudicial Power exercised by the House of Peers is meerly derivative from and Subservient to the Supream Power resiâ—â—ing in the King From whence it also follows that if the Peers have no Power nor Honour but what proceeds from the Prince and that the Commons
the Aldermen or Burgesses of Towns Represent those which we now call the Commons And supposing that then there were no Knights of Shires yet these being then the only Proprietors of any considerable Estates of Land in the Nation might very well represent all their Vâ—ssals or Vnder-Tenents as Tenents for years and at Will are at this day by the Knights of Shires tho they have no Votes at their Elâ—ction To conclude tho I grant that the King 's of England are the Fountain of that Honour which we call Peerage Yet it is only in Pursuance of that Ancient Constitution which their Ancestors brought out of Old Saxony and Normandy along with them as the firmest defence of Kingly Power against the Insolency and Encroachments of the Common or Meaner sort of People as well as Tyranny in their Princes And therefore in all Monarchies where there is no Hereditary Nobility the Prince hath no surer â—ay to maintain his Power than by Standing Armies to whose Humours and Pactions he is more Subject and is also more liable to be Murdered or Deposed by them when discontented with him than ever any limited Prince yet was or can be by his Nobility or People As I could shew you from a multitude of Examples not only from the Roman but Moorish Arabick and Turkish Histories and therefore to constitute a lasting stable limited Monarchy as ours is it must be according to the Model I have here Proposed M. I shall not contradict the latter part of your Discourse but I must freely tell you that if as you your self grant there were no Knights of Shires in the Saxon times I cannot see how those we call the vulgar or Commons of England had then any Representatives in the Great Council since those Thanes or Lords of Mannors whom you suppose to have Represented their Tenants or Vassals were never chosen by them and consequently could not properly be their Representatives But I think it will be easy enough to prove that none of your Inferior or middle Thanes but only the Chiâ—f or Superior had places in those Assemblies So that these Feudal Thanes or such as held of the King in Chief by Military Service were of the sam Kind with them that were after the Norman times Honorary or Parliamentary Barons and their Thainlands alone were the Honorary Thainlands and such as were afterwards Parliamentary Baronies Nor can I find any Footsteps in our Ancient English Histories of Cities and Buroughs sending any Representatives to those Great Councils So that admit I should own at present that the Bishops and some Great Abbots had from the first Setling of Christianity in this Island an Indisputable place in the Great Councils and likewise that the Earls Aldermen or Great Nobility had also Votes in those Assemblies and that the Chief Thanes or less Nobles had also their places there by reason of the Tenure of their Estates yet certainly the House of Commons was of a much later Date and owed its being either to the Grace and Favour of our Kings of the Norman Race or else to those that had Vsurp't their Power And this I think Dr. Brady hath very well proved against Mr. Petyt and I think I could convince you also of the Truth of it by his as well as other Arguments were it not now too late to enter upon so long a Subject F. Therefore pray let us defer any further Discourse of this Question till the next time we meet wherein I hope I may shew you that if you owe that Opinion to the Doctors Arguments he hath led you into a very gross mistake And I shall only at present take my leave of you and bid you good night M. I wish you the like ADVERTISEMENT A Brief Discourse of the Law of Nature according to the Principles and Method laid down in the Reverend Dr. Cumberland's now Lord Bishop of Peterborough's Latin Treatise on that Subject As also his Confutations of Mr. Hobb's Principles put into another Method With the Right Reverend Author's Approbation FINIS Bibliotheca Politica Or A DISCOURSE By way of DIALOGUE WHETHER The Commons of England represented by Knights Citizens and Burgesses in Parliament were one of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. Collected out of the most Approved Authors both Ancient and Modern Dialogue the Sixth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth and Fifth Dialogues 1693. Authors made use of and how denoted 1. Mr. Pettit's Ancient Right of the Commons of England Asserted P.R.C. 2. Dr. Brady's Answer thereunto Edit in Folio B. A. P. 3. The said Doctor 's Glossary at the end of it B. G. 4. Anamadversions upon Treatise Ianii Anglorum forces novo B. A. I. 5. The Author of Ianus c. his Confutation of the said Doctor entituled Ianus Anglorum ab Antique I. A. A. 6. Dr. Brady's Preface to his History B. P. H. 7. Dr. Iohnston's Excellency of Monarchical Government I. E. M. G. THE PREFACE TO THE READER HAving in my last Discourse treated of the Legislative Power of this Kingdom as also the Ancient Constitution of our English Government by great Councils or Parliaments the former of which questions I should scarce have dwelt so long upon had I then known of a Learned Treatise now 〈◊〉 to be publisht on that Subject I am at last arrived at the hardest and most important though perhaps in the Iudgment of some the driest and most unpleasant part of my Task viz. Who were anciently the constituent Parts or Orders of Men who made up thâ—se Assemblies That the Bishops Abbots Priors Earls and Chief Thanes or Barons were Principal Members is granted by all Parties but whether there were from the very Original of these Great Councils nay till long after the coming in of the Normans any Representatives for the Commons as we now call them in distinction from the Lords Spiritual and Temporal is a doubt which as it was for ought I can find first raised by an Italian who writ the History of England in the last Age so hath it been continued by some Antiquaries of our present Age though the first that ever appeared to prove the contrary was a Treatise published by James Howel in the Cottoni Posthuma under the Name of Sir Robert Cotton about 1654. but whether it was his or no I know not only it was supposed to be so by Mr. Pryn in his Preface to the Collection of Records which he published under the Name of the same Author in 1657. and after him this Notion of the Bishops Lords and other Tenants in Capite being the Sole Representative for the whole Nation in those Councils was next printed in the Second part of Sir Henry Spelman's Glossary Tit. Parliamentum where King John's Charter is made use of at the main Argument to prove that Assertion The next who appear'd in Prâ—nt on
with the Advice and Assistance of their VVites or Wise-men simply without mentioning any particular Orders of men whatsoever And when any Rank or Degrees of men are particularly mentioned they are only the same before rehearsed both Ecclesiasticks and Laicks 2. I note that it cannot be denied but that in every one of these Wittena Gâ—motes Micel Synods Micel Gemotes or Great Councils where the Laws are said to be made only by the King with the advice of his Wites or Sapientes without particularizing any degrees of Persons the Bishops and Abbots for the Spiritual Nobility and the Eorls or Aldermen and Thanes for the Temporal were present at the making of them as also the Judges if there were any of the higher Class other than Bishops Aldermen and Gereves or Praepositi 3. I note that it follows from thence that these all jointly were the Sapientes where there are only Wites or Sapientes in general named without reciting any particular Orders or Degrees of Men. Now if you can shew me from as good Authorities as I have here produced that any of the Commons sate in these Great Councils at least to represent the Body of the Commons among the Saxons I will grant that during the Saxon Government the Freemen or Commons of England as now called and distinguished from the Great Lords were an essential constituent part of the Common Councils of those times F. To return you as short an Answer as I can to those Authorities you now cite I must in the first place premise That tho I grant all Nobility among the ancient Germans Saxons and Franks who were but so many Stirps or Branches of the Gothic Nation were at first wholly Military yet it is a very great mistake and savours of the Prejudices of the Age and Country we live in to imagine that anciently there were the same Distinctions between Peers or Noblemen and Gentlemen whom we now call Commoners as there are now For if we go but over into France or Germany we shall find no difference there between the greater and the less Nobility and a Gentleman is as noble as a Dâ—ke or a Marquiss And if we pass farther into Denmark and Norway from whence most of the Danish Laws are supposed to come it is certain that but few years ago there were no such Titles among them as Earls or Barons every Lord of a Town or District being that which they call an Adelman or Nobleman And so I suppose it anciently was among the English Saxons The Word Athel or Adel comprehending to speak in our present Dialect all Degrees as well Noblemen as Gentlemen And for this I can give you the Authority of an Ancient Author viz. Paulus Warnefridus de gestis Longobardorum who speaking of these Adelmen or Adelings tell us Sic and eos quidam Nobiles prosapia vocabantur So likewise Sir H. Spelman in his Glossary Tit. Adelingi Tit. p. 9 10. writes thus Anglorum legibus dici pro nobilibus in genere quod nec dum apud Germanos antiquatum est qui omnes nobiles Aedelmen vocant a Saxonico Aedel pro nobili And Mr. Selden in his Titles of Honour makes the Word Aethelum to signifie all one either Gentlemen or Noblemen Besides Adam of Bremen and Nitardus likewise both Ancient Historians divide the Saxon Nation into three different Degrees or Orders viz into Athelings i. e. Nobles Frilings i. e. Freemen and Lazzos i. e. Villains Bours or Bondmen Besides which Noblemen or Gentlemen there was likewise another sort of men who tho of an inferior Rank yet as Freemen and having a considerable share of the Riches and Strength of the Nation in their hands had likewise a Place in the Great Councils as well as the former And these were the Aldermen or other Magistrates of Cities and Burroughs and in this they resembled the German Diets whose constituent Members were according to Gonterus an Ancient German Poet Praelati Proceres missisque potentibus Urbes But since this is a Dispute about the Signification of Words in what sense they were used in that Age we are now treating of it will not be inconvenient to examine from the most Learned Glossarists the Ancient Signification of those Words which are in dispute between us And therefore since we are agreed about the meaning of all other Words except these viz. Aldermen Thanes Wites Magnates Optimates and Principes Preceres or Primates let us examine each of their Ancient Significations To begin then with the Word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man Alderman which Word was of a very general Signification For Sir Hen. Spelman in his Glossary Tit. Alderman tells us that there was Aldermannus Regis Comitatus Civitatis Burgi c. de quorum potestate non facile est definire Mr. Lambard renders the Word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man in Latin Senator i. e. one that had place in the Great Council and so doth Mr. Somner in his Saxon Dictionary from whence you may learn that this Word is of a large signification and might comprehend such as in latter times were called Commons to distinguish them from the Lords or higher Nobility and could not exclude them Verstegan renders this Word thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 So written in our ancient Language is properly an Elder or Senior yet an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 man which we call now an Alderman was such in effect among our Ancestors as was the Tribunus Plebis with the Romans that is one that had chief Iurisdiction among the Commons as being a Maintainer of their Liberties And if so such persons must certainly have had a place in the Great Council as Commoners and therefore must from the reason of the thing signifie something more in those times than an Earl or great Officer of the King only So likewise that the Word Thane comprehended more than the Kings Great Feudal or Military Tenents may appear by these Interpretations of it which our Antiquaries have given us The Industrious Mr. Somner in his Glossary at the end of the X. Scriptores as also Mr. Selden in his Titles of Honour do both agree in the difference I now make between the Greater and the Less Thanes the former being called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Thani Regii the other called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Mediocres vel Inferiores Thani Middle or Less Thanes who were Maneriorum Domini Nobiles miâ—â—â—es Vavasores nonnunquam liberi tenentes with whom Sir H. Spelman in his Glossary agrees Thanorum duo erant genera Majores quos Thainâ—s Regis appellabant nos Barones Regis Thaini Simpliciter seu Thaini Minores quâ— iidem erant qui Barones Minores hoc est Maneriorum Domini Nobiles minores nonnunquam Liberi Tenentes nuncupantur So likewise Mr. Lambard in his Glossary thus Thani autem appellatione viri interdum Nobiles interdum liberae conditionis homines interdum Magistratus
atque supâ— mâ—nerâ— Ministri notantur And also in his Perambulation of Kent saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 was usually taken for the very same that we call now from the Latin word Gentilis a Gentleman that is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A man well born or of good Stock and Family So that I think nothing can be more evident than that according to the Opinion of our best Criticks in the Saxon Tongue the word Thane doth not always signify a great Lord or Baron of Parliament as he is now called in distinction to an Inferior Nobleman or Gentleman And that there were also Burgh Thanes Thanes of Cities and Boroughs will evidently appear from a Writ or Charter of K. Edward the Confessor which is still to be found in Sir Iohn Cotton's Library in these words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Willem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 alle mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which Charter with divers other of like nature confirming the Privileges of that Monastery were collected by a Monk of Westminster called Sulcardus who lived not long after the Conquest In the next place as for the word Magnates though I grant it there often signifies Great men or Lords Yet not only such as were Lords or Noblemen by Birth but as I shall shew you by several Instances as well before as after the Norman Entrance that it likewise also comprehended the Gentry or Inferior Nobility and such as were eminent and considerable either in the Countries or Cities for Interest Office or Estate As for the word Optimates I know it signifies the better or best sort of men yet not always great Noblemen or Lords For in Monastic Anglic. Tom. 3. we read of one Goda who under Edw. the Confessor subscribed himself Optimatem Ministrum Regalem i. e. Thane And lest you should apprehend that Optimas should always signifie the King's Thane or Tenent in Capite du Fresne in his Glossary defines Optimates to be Vassalli Barones qui ab ullo Domino ratione Hominu nede pendet but I shall speak more of this word Optimates when I come to speak of the times not long after VVilliam the First In the next place for the word Proceres it doth not only signifie Men Noble by Birth but Isidore a Spanish Author in the Gothic-times in his Origines Lib. 9. Cap. 4. says thus Proceres sunt Principes Civium and that this word often signified in the ancient English Saxon the Chief Magistrates of Cities or Burghs appears by Alfrick's ancient Glossary where these words Proceres Primates vel Primores he thus renders 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 buph papa And Du Fresne in his Glossary says also Proceres appâ—â—labantur qui in Civitatibus pracipuos Magistratus gerebant As for the word Principes any man that understands any thing of the Latin Tongue knows that it doth not always signifie Princes or Men Noble by Birth but any Chief or Principal Man remarkable by Place Office or Dignity and therefore we often read in Livy and other Latin Authors of Principes Civitatis and in this sense I suppose every Member of Parliament may be reckoned inter Principes among the most Considerable or Chief Men of the Kingdom So that when our ancient English Historians as well before as immediately after the Norman Conquest do often after the Arch-Bishops Bishops c. add caeteri totiâ—â— Regni Proceres Optimates or Principes as Members of the great Councils of those times Yet that these Writers did not then mean what you would understand by these words only Princes Earls or Great Lords Mr. Selden in his Titles of Honour teaches us when speaking of this word Principes as the most comprehensive of any says that though Princeps in the Singular were proper to every Earl or Alderman yet in the Plural Principes is more often applied comprehensively to others also of less though of special Eminency such as were Viri Primarii or Thanes And for this he refers us to the Charter of King Ethelwulf as it is recited by W. of Malmsbury Lib. 2 Cap. 2. And Ingulph wherein that King granted Tithes and divers other Priviledges to the Church Abby of Malmsbury which is said to be done Consilio Episcoporum Principum snorum as also of Hen. Hunt who relating the Election of Harold the Son of King Cnute expresses it thus Fuit magnum placitum apud Oxonford ubi Leofricus Consul omnes Principes eligerunt Heraldum Lastly As for the word Wites or Sapientes there can be nothing in that word which can limit it only to Men Noble by Birth since it signifies no more than the King 's Great Council of Wise men or Senators and might also well refer to the Chief Magistrates or Representatives of great Cities and Boroughs For Du Fresne in his Glossary tells us That among the Lâ—mbards Sapientes in Italia appellabant Civitatum Cives Primarii quorum Consilio Respublicae gerebantur Hieron Rubeus Lib. Hist. Raven Anno 1297. Sed longe antea illud nomen abtâ—â—uit in aliis Longobardâ—rum Civitatibus ut colligere liceret ex Ottone Acerbo Morena in Hist. Rerum Lâ—ndevetium c. Nor is this Authority inconsiderable since the Lombards were derived from the Goths from whom also the English Saxons had their Original and had the like fundamental Constitution and were governed by much the same Laws But that the Title of Wites or Sapientes was often attributed to the Commons of England I shall explain to you when I come to treat of the Antiquity of the House of Commons after the Normans Entrance where I shall shew you that divers Petitions were directed a tres Sages les Communes And sure whosoever is chosen by a County City or Borough as their Representative and is by them thought wise enough to be trusted with their Purses and to make Laws for them may very well I think be called in Old English a VVite or in our modern Dialect a Disercet or VVise man But let this word VVites signifie what it will yet it could never mean here great Lawyers or Iudges as your Dr. will have it since I very much doubt whether Law was then a Trade or Profession or not And that the Iudges in those days had not any more Voice in making Laws than they have now or any more to do in it than in the bare drawing of them up I am very well satisfied since if they had any such Power in those days I do not believe our Kings would ever have let them have lost it since it was so advantagious to their Prerogatives that they should keep it I could give you divers other Authorities though of later date to prove that the Commons were often included under the word Sapientes in our ancient Statutes and Records but I refer those for the times after the Conquest but I beg your pardon for being so
the people then made a considerable part of the Great Council from the very beginning of the Saxon times M. Pray Sir will you give me leave to answer your Questions one by one as you go for fear I should not only forget them but also tire you with too long a Speech In the first place therefore give me leave to tell you that you are very much mistaken to suppose that by the Word Populus is here meant the common People or Vulgar Whereas when Clerus and Populus are used together in our Ancient Writers of those times it signifies no more than a Common Council of the Clergy and People or Laity and not the Common People for then the Lords or Great Men would have been quite left out of this Council as certainly they were not and so when Clerus and Populus are used together and thus contradistinguished then they are expressive of two different Estates or Conditions of Men or Christians the Clergy and Laity or secular Men and those were the Optimates Terrae the chief Men of the Land before expressed Neither was this Council held under a sole Saxon Monarch but under Ethelbert King of Kent only and that but eight years after Augustin's coming hither and above two hundred years before the Seven Kingdoms were united into one Monarchy F. I am not at all concerned at this Answer since I can prove that by the Word Populus must be here understood somewhat more than Kings Noblemen and Iudges viz. the Representatives of the Commons likewise or else the Saxon Witena-Gemotes were not what their Titles speak them to be Common or General Councils of the whole Kingdom that is of all the Estates or Orders of it there but only a Convention of the Bishops and Great Lords And therefore if the Word Clerus did then comprehend all the Clergy both Superior and Inferior i e. as well the Bishops as Abbots Priors Deans and Clerks for the Secular Clergy and Cathederal Chapters c. I pray give me a Reason why the Word Populus when put alone must be wholly confined to your Earls or chief Thanes and may not also take in the Middle or Less Thanes Freeholders or Lords of Townships and the Representatives of Cities and Burrough Towns and why not with as much reason as that the Word Populus amongst the Romans took in the whole Body of the People of Rome both Patricians and Plebâ—ians when assembled in their Comitiis Centuriatis to make Laws or create Magistrates The rest of your Argument is not very material for tho I grant this Council was held before the Heptarchy was united into a Monarchy yet I think it is very easie to prove that as all the Saxon Kingdoms consisted of several Nations of the same Language and Original so were they likewise under the same Form of Government And that Councils consisted of the same constituent Members 〈◊〉 I shall prove to you from the Kingdom of the West-Saxons from which was the Foundation of our present English Monarchy And for this I shall give you the Authority of Will of Malmesbury and H. Huntingdon who 't is highly probable had seen the ancient Histories and Records of those times and they both agree in the Relation of the Deposition of Sigebert King of the West-Saxons for Tyranny and Cruelty Anno. 754. the Words are remarkable which pray read Unde in Anno secundo ipsius Regni congregati sunt Proceres Populi Totius Regni provida deliberatione unanimi consensu omnium expulsus est a Regno Kinewulfus satus ex Regio sanguine electus est in Regem where you may observe a plain difference made between the Higher Nobility here called Proceres and the Representatives of the People here stiled Populi as also from another Authority of a Great Council held under the same King Aethelbert as it is mentioned by Roger Hoveden Domestick to King Hen. II. in the 2d Part of his Annals where among the Laws of King Edw. the Confessor and which he writes to have been confirmed by King William I. you will find under the Title de Aptbâ—â—s de aliis minutis Decimis which are there said to be given to the Clergy by former Kings and particularly by this King Ethelbert these Words Haec entâ—n Sanctus 〈◊〉 praedicavit docuâ—t haec concessa sunt a Rege Baronibus Populo So that it Populus â—ere doth not signifie an Order of Men contradistinct from the Barons or Great Lords it would have been a Tautology with a witness M. I must confess if this Authority you now urge had been as ancient as the time to which it is ascribed it would be of some weight but it appears by this Word Baronibus not used in England till after the Conquest that it was added long after that time by some ignorant Monk to the Confessor's Laws and therefore will not prove that for which you bring it viz. That the Vulâ—â—â— understood for the People or Commons in the sense they are now taken had any Place in the Saxon Great Councils But make the most of it this was but the confirmation of a Law made by King Aethelbert but how and by what Words the Legislators were expressed near 500 years after the Law was made or how they were rendred in Latin after the coming of the Normans transiently and without design to give an account of them cannot be of much Validity to prove who they were and that the Laws of King Edw. were made or at least translated into Norman Latin after the Norman Conquest appears by the Word Comites besides Barones already mentioned Militeâ— Servientes c. all Norman Words and not known here till their coming hither He that will assert any thing from a single uncouth Expression in one Case and upon one occasion only brings but a slender Proof for that he says so will any man think because 't is said in one of King Edward's Laws and perhaps no where else concerning this King's Coronation quod debet in propria persona â—â—am Regno Sacerdotio Clero jurare ante quam ab Archiepiscopis Episcopis Regni coronetur That the Priests were not Clergy-men nor the Clergy-men Priests and that the Arch-Bishops and Bishops were neither Many other uncoath Expressions do often occur in the old Monks which are to be interpreted according to the common usage and practice of the times in which they are delivered And therefore seeing before the time of the Conquest and for two or near three Centuries of years afterward the Commons as at this day understood were not called nor did come to Great Councils or Parliaments as I shall prove when I come to speak of those times So that by Barones must be here meant the Great Barons and by Populus the Communitas Angliae or which was then all one the Communitas Baronum the Less Barons or Tenents in Capite and the sense of the Words is
called Catalogus Gloriae Mundi written on this subject where in his 8 th part consid 18. he hath this amongst other Comments on the word Nobilitas Nobilitas etiam causatur ex loco quoniam civis ex urbe splendida oriundus Nobilis est for which he there gives many Authorities And this Title he looks upon as due also to Countrey Gentlemen living upon the Husbandry of their own Estates or Annual Rents And that by the word Magnates are often understood the Knights of Shires commonly called in old French Grantz des Countees I can give you sufficient Authorities Now this word Magnates is always rendred in our old French by Grantz For the proof of this I desire you in the first place to take notice that Rot. Claus. 3 E. 2. in 16. dorso you will find this Title Inhibitio ne qui Magnates viz. Comes Baro Miles 〈◊〉 abqua alia Notabilis persona transeat ad partes transmarinas Where you see the word Magnates is applied to Knights at least as well as Earls and Barons And amongst the Common Writs of Michaelmas Term Anno 34 Edw. I. in the keeping of the Remembrancer of the Treasury of the Exchequer the Knights of Shires and Barons of Cinque-Ports are called Magnates So also in the Statute 25 E. 3. de servientibus it is there Enacted per Assent de les ditz Prelatz Countes 〈◊〉 autres Grandes de la dite Communalte illonques Assemblez Also in the Statute-Book printed in French in the Statute of the Staple 27 E. 3. the Knights of the Shires are expresly called Grantz des Counties And lastly as for the word Optimates which is derived from the superlative Optimus it signifies no more than the best sort of men in any Commonwealth or City And in this sense William of Malmesbury in his History speaking of the rich Citizens of London hath this Remarkable Passage Londinenses qui pro magnitudine Civitatis optimates sunt And that not only Knights but also such Citizens as were remarkable and eminent for their Estates or Offices in Cities had the appellation of Magnates appears from an Ancient Manuscript Book kept in the Archives of the City of London where in Anno Dom. 1229. being the 13 th of Hen. 3. an Act of Common Council was made per omnes Aldermanâ—aes Magnates Civitatis per assensum univer-sorum Civium quod nullo tempore â—ermitterent aliquem vicecomitem admitti in vicecomitem per duos annos continuos sicut 〈◊〉 extiterant So likewise in the same Book Anno Dom. 1244. 29. H. 3. mention is there made of a Dissention that then arose about the Choice of a Sheriff and the Book says that quidam de vulgo Elegerunt Nichol. Bat. per assensum Majoris Magnates elegerunt Adam de â—ently I could give you more of a like nature but I will not tire you but no doubt but the Eminent Citizens of York and other Cities were called Magnates in those times From all which we may safely conclude That not only Knights of Shirâ— were stiled Magnates but also the Representatives for the Cities were often stiled Proceres Magnates and Nobiles in our Ancient Rolls and Acts of Parliament and other publick Writings I beg your Pardon for being thus long but I could not make an end sooner and prove the true Sense of these Words in question from Ancient Historians Acts of Parliaments and Records by which I hope you will be satisfied how unsafe it is to depend upon the general and various expressions of our English Historians especially as understood by those of yoâ—â— opinion since if we should depend upon them alone the Commons would not oftentimes be found to have been present in Parliament even when the Records themselves expresly prove they were there M. I must confess you have made me think more on this Subject than perhaps otherwise I should have done yet I must observe That most of the Quotations you have made use of concerning the meaning of the words Proceres Magnates and Nobiles c. are from Authors who writ after the time that I 〈◊〉 the Commons as now Represented to have been constantly Summoned to Parliament so that they might very well through haste or inadvertency confound them with the Earls and Lords and so stile them by the same Titles For I will prove to you before the conclusion of this Discourse by undeniable Records That by the words Magnates and Proceres are understood the Bishops Earls and Barons as distinguished from the Commons But I think I can sufficiently prove from Mat. Paris and the Ancient Laws of our first Norman Kings as also from the Magna Charta of King Iohn That by the words Bartneâ— iâ— meant the Tenents in capite who are there only mentioned to haâ— constantly appeared in Parliament till the 18 th E. 1. the Greater and Less â—â—â—ons or Tenents in capite together with those of higher degree viz. the Earls Bishops and Abbots being the only persons who represented the whoâ—e Body of the Nation in our great Councils or Parliaments And I take this to be 〈◊〉 evident and clear that I cannot quit this Opinion without you can shew 〈◊〉 better Reasons to the contrary than hitherto you have done F. I see nothing will satisfie those who have once received a Prejudice 〈◊〉 otherwise I think it may be proved sufficiently from that Clause in Magna Chartâ— I have mentioned That other persons were there before the 49 th of Henry 〈◊〉 besides your great Barons and Tenents in capite And as for the use of 〈◊〉 words you mention in Historians after the Reign of Hen. III. nothing can be a plainer proof for me For if those Historians did comprehend the Common under those general Words or Phrases we have been now disputing about I deâ—sire to know why they might not have been likewise comprehended under thâ— same terms by Mat. Paris and those other Historians who writ other Historieâ— from the Norman Conquest to his time and why thy might not have then conâ—founded the Commons with the Lords as well as they did afterwards But since I see you insist so much upon your Barones and Tenentes in capite whom you wiâ— have alone to constitute the Baronagium or the Communitas or Universitas Barâ—â—gii Angliae pray give me leave to ask you a plain Question Were your lessâ— Tenents in capite or Barones minores Lords or Peers of Parliament or were they Commoners only M. To give you Mr. Selden's Opinion in his Titles of Honour cap. 5. He supposes that from the time of the Conquest to about the middle of King Iohn every Tenant by reason of his Tenure of Lands he held in capite was indifferently an Honorary or Parliamentary Baron but that about the end of King Iohn's time some only that were most eminent of those Tenants sometimes stiled Barones Majores Regni were summoned by several Writs directed to them as
Voluntate Precipto Domini Regis nec non â—â—â—datorum Baâ—onium ac etiam Communitatis tunc ibidem praesentium M. I think the Dr. hath given us full satisfaction as to this Record in his Answer to Mr. P. the substance of which I shall here give you in short First It is certain that at the making of this forced Peace Simon Mountford and his Faction then held the King and Prince as also Richard Earl of Cornwal the King's Brother as good as Prisoners and made them do what he pleased and he carried the King and Prince along with him until he had taken in all the strong places of the Kingdom and when he had done then he called this Parliament which could not be one in the sense it is now taken since there was none there but the Earls Barons and Heads of the Rebels which had the King and Prince in their power and as you your self set forth were the same persons that sealed it for themselves and the other Barons and the whole Community of the Kingdom of England which Community must be the Community of the Barons and Great Men or Tenants in capite by Military Service and no other for how can the Lords and Barons sign any thing for the Commons as at this day understood They did not then nor now do represent them But I shall give you another Authority to make this clearer of some years before related in Matt. Paris viz. Anno Dom. 12â—â— 42 d Hen. III. where Letters are said to be sent a Communitate Angliae to the Pope concerning Aymer de Valence Bishop Elect of Wachester the Direction is thus Sanctissimo in Christo Patri c. Communitas Comitum Procerum Magnatum Aliorumque Regni Angliae cum subjectione debita Pedum Osrâ—â—â— c. And to put the Matter beyond all doubt it is certain that these Letters were sealed by six Earls and five Barons onely vice totius Communitatis I need 〈◊〉 give you their Names since you may find them in the Author himself as also cited by the Dr. And as for H. Bigod the Chief Justice and the four Persons named after him they are proved by Sir VVilliam Dugdale in his Baronage of England to have been the Greatest Barons in the Kingdom Now pray let me ask you this Question Did these Eleven Persons all Great Earls and Barons represent the whole Commons or Community of England as at this day understood or did they represent the Community of the Barons only together with the Alios the Milites which held by Military Service of the Great Barons and the Less Tenants in capite for the whole Community here intended must be one of them take which you please you 'l lose the Cause For certainly these Great 〈◊〉 and Barons that sealed this Letter vice totius Communitatis were not chosen nor sent by the Commons to this Parliament or Meeting nor were the Commons represented as at this Day by them as you your self have already granted F. I hope I shall not need to make any long Reply to this Answer of youâ—â— or rather of your Dr.'s since it is built upon the same false Supposition with the other viz. that the Words Cum Communitate tot â Regni Angliae must always mean only the Community of the Tenants in capite which Supposition if it be false in your former Argument is also as falfe in this of the Lords and Commons too and therefore it is impertinent to repeat my Answer to it But if this were no true Parliament because Simon Mountford had then the King and Prince in his power This would likewise serve to unparliament that of the 49 th of this King from whence the Gentlemen of your Opinion date the first coming of the Commons to Parliament since the King and Prince were as much in Simon Mountford's power then as now and yet no man as I know of ever questioned the validity of it tho I cannot also omit that you pass by in this Letter the words Magnatum aliorumque Regni under which Words as I have already proved might very well be comprehended all the Knights of Shires as well as Citizens and Burgesses unless the words had run thus as they should have done to have made out your Assertion aliorumque qui de Rege Tenent in capite But to come to the main point you insist upon which is How these Great Earlâ— and Barons could seal this Form of the Peace and these Letters to the Pope in the Name of all the Commons of England Before I answer to that I pray give me leave to ask you one Question You have already allowed that the ordinary Tenants in capite of which that numerous Body chiefly consisted tho called by courtesy Barones Minores were really no Barons nor Peers of the Realm and if so were but Commoners Now pray tell me how these Great Earls and Barons you mentioned to have signed this Peace and this Letter to the Pope could put their Seals for those who were no Barons themselves by your own confession and you cannot say they represented them for they were as good Tenants in capite as the Greatest Lords But if you say they did it by their order and consent pray why might not these Great Lords or Barons as well do the like for the Knights of Shires and Burgesses by their appointment Since I have already proved that the Lords did act thus in the Letters which were sent to the Pope concerning the Business of Scotland And besides I must here observe that the Dr. and you do not deal fairly with your Adversaries in citing this Authority of the Lords and Barons signing these Letters to the Pope Vice tâ—tius Communitatâ—s Angliae since I acknowledge in this place the Word Communitas being put alone doth mean no more than the Community of the whole Kingdom But in the Authority I have quoted it is put after the Earls and Barons and so then must mean the whole Commonalty or Body of the Commons in the Sense they are now taken and as it hath been always used in French as well as in Latin when it comes after the Earls and Barons as I have already noted And for this pray see the Stat. of Westm. I. made 3 d Edw. I. but eleven years after the 49 th of Hen. III. Per l'assâ—ntments des Aechievesques Evesques Abbes Priors Counts Barons tout le Comminalty de la terre illonques summones Which Phrase I can shew you to have continued the same in most of our French Statutes during the Reign of this King and all his Successors in many Records and Acts of Parliament whilst they were writ in Latin or French which I shall omit reciting because I suppose you your self will allow it I have a great deal more to say concerning the true sense of the Words Communitas le Commune le Communalty which because it is long and it now grows late I shall
defer till another time But I think I shall be able to shew you from undoubted Records and Acts of Parliament from the Reign of Hen. III. as low as Richard II. that these Words when used as I have now said after the Earls and Barons cannot refer to them but to another distinct Estate or Order of Men then called les Communer or les Communes in English the Commons of the Kingdom distinct from the Bishops and Lords M I shall nor now dispute with you concerning the Sense you have put upon the words you mention but I grant they often signifie the Commons after the 18 th Edw. I. in some Acts of Parliament and Parliamentary Records but I must beg your pardon if I cannot allow Communitas to signifie the Commons at this time in your Sense and therefore am not yet convinced that the words la Communalty de la terre mentioned in the Statute of Westm. I. ought to be understood or englished by the word Commons who I do not suppose were then above once called to Parliament till the 18 th of this King But as for what you argue from the Knights of Shires being often called Magnates and Grantz des Countees I allow they are often so stiled in our Statutes and Rolls of Parliament but if you consider the reason of it this will do you little Service since they were so called from their being most commonly at the beginning of their Election chosen out of the Greatest and most considerable Tenants in capite under the Degree of Barons in each County and no other who were chosen to represent the Omnes alios qui de Rege Tenent in capite mentioned in King Iohn's Charter or them and all the other Military Tenants by mean Tenure For 't is scarce to be believed that those Tenants in capite who made such a noise for their Liberties would part with this main point of being personally present or else the Body of them represented by some of their own number in every County And it may be upon this account they had the Title of Notable Knights c. in the ancient Writs of Summons directed to the Sheriffs So that only the Tenants by Knights Service as suitors to the County Courts were the Electors And this was very likely the reason of the Statute of the 7 th Hen. IV. that the Election should be made in the County Court by all the Suitors and also why the Statute 18 th Hen. VI. by which any man that had 40 s. per Ann. of any Tenure who was before permitted to be an Elector was altered by 10 th Hen. VI. and so explained that none but Freeholders of 40 s. per Ann. should afterwards be Electors with respect to the least part of a Knights Fee viz. 40 s. per Annum which were now come into the hands of very ordinary Men. For anciently soon after or near the Conquest there were very few or no great Socâ—agâ— that is such as held great Estates in Soccage and neither the small ones nor the Nativi or Copyholders were reputed Liberi ot Legales Homines as before mentioned or performed the service proper to such Military Tenants or those to whom they had alienated part of their Fees But since I have tired you as well as my self in wrangling about the sense and meaning of the words in dispute between us I shall for the future take a shorter cut and give you two or three Authorities from our Ancient Laws of VVilliam the Conqueror and Hen. II. and Rich. I. which together with King Iohn's Magna Charta will I think make it plain enough in conscience that the Commons as now represented were not summoned to Parliament during the Reign of King Iohn and whether they were so summoned before 49 th H. III. when they were called but once till above twenty years after will be the other part of my Task F. I approve of your Method very well and I assure you I love pedantick Disputes about the Grammatical signification of words as little as your self unless where it is absolutely necessary as indeed you have rendred it so by raising the greatest part of your Arguments from the equivocal use of those general words whereby our Ancient Laws and Historians have stiled the Constituent Members of our Great Councils which if they are well cleared I think it is high time to fall upon some more solid Arguments But before you come to that I cannot forbear observing that your self do allow that in all Acts of Parliament and Records after the 18 th Edw. I. the words Communitas and lâ— Commune when put after the Earls and Barons do signifie the Commons in the same sense in which they are now taken but I must confess it seems incredible nay almost impossible to me that these words should signifie the Community of the Tenants in capite In the 48 th Hen III or 18 th of Edw. I. begin where you please and yet that the next Parliament after those the same words should be taken in quite another sense for the Knights of Shires Citizens and Burgesses and that no Statute Record or Historian of that or succeeding Ages should take the least notice of it is understood But before I conclude this part of the Question I cannot but rectifie a great mistake you have fallen into by adhering to the Dr. with too implicite a Faith For whereas you suppose that the reason why our Knights of Shires were called anciently Grantz des Countees was because they were at first elected out of the Tenants in capite only and who with the other Tenants by Military Service were also the only Electors of them at first till the Statute of 7 th Hen. IV. ordained the Election should be made in the County Court by all the Suitors as if it had not been many Ages so before Whereas if you please to peruse that Statute a little better you will find it was not made to enlarge the number of the Electors of Parliament men for long before that time all sorts or degrees of Freeholders as well Tenants in capite as their Tenants by any kind of Tenure or whether holding of such Tenants in capite or else of others as Abbots and Priors and other Mesne Tenants did alike owe Suit and Service to the County Court and consequently were all alike capable of giving their Voices there at the Election of Knights of Shires however small their Estates were Nor was that Statute of Hen. IV. now cited which requires the Election of Knights of Shires to be made by those that were summoned and all other that were there present made to confer any new Right upon such Feeeholders but only to prevent the Abuses of Sheriffâ— who were wont before that Statute to procure Knights of Shires to be chosen clandestinely without any due Summons or notice given to the Freeholders of the Election much less doth the Statute of 8 th Hen. VI.
confer any new Right or Priviledge upon Freeholders of 40 s. per Annum to give their Voices at such Election as you suppose but only takes away the Right which the smaller Freeholders of under 40 s per Annum whether Tenants in capite or not had before and restrains it only to such as shall have Lands or Tenements to the vaâ—â— of 40 s. by year above all charges And it is yet a much greater mistake to suppose as your Dr. doth that this Statute of 8 th Hen. VI. was at all altered by that of the 10 th of this King which is no more than an Explanation of it viz. that by 40 s. per Annum was meant 40 s. Freehold and that of Lands lying within the County where the Election should be made So that nothing can prove more expresly that all Freeholders as well Tenants in capite as by any other Tenure were all alike capable of Elections and being elected by the Ancient Law and Custom of England long before those Statutes and consequently were all alike Freeholders in the Eye of the Law But if you have nothing at present to object against what I have now said pray pursue the Method you have undertaken and let me see those convincing Proofs you so much rely upon and which you hope may also serve to convert me M. Before I undertake this Task pray permit me to give you my Opinion in answer to the Difficulty you have now proposed which I confess seems to carry some weight with it but those Prejudices will soon vanish when we consider that the first time this Alteration was practised it was done in the King's Name tho by the absolute power of Simon Mountfort in the 49th Hen III. and after a discontinuance of above twenty years was again renewed by Edw. I. at the desire of the Earls and Barons as I hope I shall shew you before we have finished our Conversation And therefore it being first done by the King 's absolute Power and after with the general consent of the Lords there needed no Statute to introduce it any more than there was in the Reign of VVilliam the Conqueror to give the Bishops and Abbots that held by Knight's Service places in Parliament among the Temporal Lords and to bring their Lands which were held before in Franc Almoigne under the Yoak of Military Service But to proceed in the Design I have undertaken it is necessary that I shew you first of all who were those Freemen or Freeholders properly so called upon whom the whole burden of the subordinate Government of the Kingdom chiefly relied and who then constituted the Legal University or Community thereof immediately after the Norman Conquest and during many King's Reigns after that time I suppose you are not ignorant that King VVilliam the Conqueror having outed all the English Nobility and Gentry of their Estates gave them away to his French and Norman Followers to be held of him and his Successors in capite either by Knights Service or Petit Serjeanty reserving to himself the Ancient Demesnes of the Crown and adding more thereunto for the maintenance of the Royal Dignity and for this I need refer you to no better Author than Doomsday's Book it self And then after he had thus distributed the Lands of England as aforesaid he composed a Body of Laws still extant and which are in great part Addition to the Ancient Laws of King Edward and his Predecessors I shall give you three or four of these new Laws and then I shall leave you to judge who were the true Freemen or Freeholders of the whole Kingdom The first is the 52 d Law of this King Tit. De Fide obsequio ergo Regem Statuâ—mus etiam ut omnes Liberi Homines faedere Sacramento affirmarent quod intra extra Regnum Angliae quod olim vocabâ—o Regnum Britannie VVilâ—ielmo Regi Domino suo Fideles esse volunt Tâ—ras Honores illius omni fidelitate servare cum eo contra inimicos alienigenar difendere Now who these Freemen were that were thus to maintain the King in his Lands and Honours we shall see in the 55th Law following Tit. De Clienteleri seu Feudorum Iure Ingenuòrum immunitate Volumus etiam ac firmiter praecipimus concedimus ut omnes Liberi Homines totius Monarchiae Regni nostri praedicti habeant â—â— meant terras suas Póssessiones sâ—â—s benè in pace libere ab omni Exactione injusto ab omni Tallagio it a quod nihil ab eis exigatur vel capiatur nisi servitium suum liberum quod de jùre nobis facere debent facere tenentur prout Statutum est in allis a Nobis Datum Concessum jure Hereditario imperpetuum per Commune Consilium votius Regni nostri Whereby you may see that all the Freemen here mentioned who were to hold their Lands and Possessions in Peace and free from all unjâ— Exaction and Taillage were only such who were to perform Free Service i. e. Knight's Service which was before appointed and granted them in Hereditary Right by the King in the Common Council of the Kingdom So that none were properly Freemen or exempt from Tax or Talliage but such as held by Military Tenure tho not Knighted And pray also by the way take notice that by this Commune Consilium Regni you are not to understand a Council of English men or of English and French together but one wholly made up of Frenchmen or Normans who as well Bishops and Abbots as Temporal Earls and Barons held almost all the Lands in the Kingdom by Knights Service Which is also farther made out by the 58 th Law Tit. De Clientum seu Vassallorem prastationibus Statuimus etiam firmiter praecipimus ut omnes Comites Bermes Milites Servientes Universi Liberi Homines totius Regni nostri prâ—â—â—â—tihabeant teneant se semper benè in Armis in equis ut decet oportet qud sint semper prompti benè parati ad servitium suum integrum nobis explendum pâ—â—â—gendum cum semper opus adfuerit secundum quod Nobis debent de Feodis Teneâ—â—â—tis suis de Iure facere sicut illis statuimus per Commune Consilium totius Regni nostri praedicti illis dedimus Concessimus in Feodo Iure Haereditario hoc praeceptum non sit violatum ullo modo super foris facturam nostram plenam So that here all the Freemen of his Kingdom were to perform their Military Services with Horse and Arms according to their Fees and Tenures Therefore they were Tenants in Military Service onely which in those times were the only great Freemen and that Service the only Free Service which were meant in this Law And â—ow different they were from our ordinary Freeholders at this day for whom neither of these Laws were made I dare leave it
welcome Sir but I did not expect to see you again so soon M. I beg your pardon if I come unseasonably but the truth is I have so great a desire to conclude what we began upon that important Subject we last discoursed of that I could not be at ease till I had done my endeavour to give you Satisfaction therein if it be possible But to come to the matter that we now meet about I must now tell you again that tho' this your gloss upon King Iohn's Charter seems plausible at first sight nay is agreeable to the Dr's own way of dividing and reading the several Articles of this Charter yet upon better consideration I can see no good reason for making a full or at least a half stop in the 16 th Article after these words omnes liberas consuetudines suas adding the rest that follows ad habendum Commune Concilium c. to the following Clause de seutagiis assidendis c. much lest for supposing as you do without any ground that there were two sorts of Common Councils one for Assessing Escuage and the other for Granting all other Aids and Taxes and then if read otherwise it will plainly appear that it was one and the same Council of the Kingdom that did then both grant Aids to the Crown and Assess Escuage ratione tenurae which I am the more inclined to believe from the fourteenth Clause here cited which says That no Scutage or Aids shall be imposed unless by the common Council of the Kingdom Now to what purpose is this so-express'd if there was to be one Council for the granting of Aids and another for the Assessing of Escuage So that if this Common Council of the Tenants in Capite might grant Aids and Assess Escuage upon the Subjects unless in the case before excepted I see no reason why they should not be the only Council for the giving their Assent to Laws also and consequently of concluding not only their own Tenants but the King's Tenants in Petty Sergeanty and Socage nay the Tenants of any other Persons whatsoever And though I have seriously considered Mr. P's Appendâ—x to the Rights of the Commons asserted and Dr. b's Answer to it as also his Animadversions upon Iani Anglorum c. Yet can I not see any colour of an Argument for making any distinction between the King 's Curia of his Great Lords and Tenants in Capite and the Great or Common Council of the Kingdom but that they were then all one and the same It would be tedious to me as well as you to run over all the particular Authorities and Examples which have been urged pro and con in this Question But I desire you or your Friend Mr. P. to shew me that there was any Bishops Earls Barons or other Members of Parliament in the times we now treat of that had any place or Vote therein but according to their Tenure and the ancient Custom of all Feudal Tenants who by the German Gothic and Lombard Feudal Laws which in substance were the same with ours were always summoned to the Court of the King their Supreme Lord. But farther to prove that this Council for Assessing Escuage was no other then the great Council or Parliament of those Tenents in Capite appears from Liâ—tleton's â—enures where in his second Book Sect. 97. he tells us That after an Expedition Royal into Scotland Escuage shall be Assessed in Parliament upon all those who failed to do their Service in that Expedition so that if the Parliament did then Assess Escuage I desire to know why they might not do it in the Reign of King Iohn iâ— this great Council of the Arch bishops Bishops great Lords and Tenants in Capite were not the Common Council of the whole Kingdom in those Times yet that Escuage was not always Assessed in Parliament after this Charter of King Iohn but that the King by his own Prerogative did often grant his Tenants in Capite a Power to take Scutage of their Tenants without any Assent in Parliament the Dr. hath given you above a dozen Examples in the Reigns of Hen. III. and King Iohn Thus it was for Aids and Scutage Service but if it was for Scutage imposed in Parliament as a Tax upon Land by the Common Council of the Nation then the Tenants in Capite were not only the sole Grantors but the Collectors of that Scutage too from their Mesne Tenants And the Writs to the Sheriff was different from these in Scutage Service though the same in Substance as likewise appears by those Records the Dr. hath there given us F. I doubt not but I shall make good my Assertion and shall be able to defend what Mr. P. hath in his Learned Treatise asserted concerning this matter In the first place I must stick to that way of reading and pointing of this Clause in dispute since it is not only agreeable to the Dr's Manuscript Copy but also to the old French Copy published by Father D'achery in his Spicilegium vol. 13. which is written in the French of thaâ— time but to answer your Objection against this Interpretation you your self have in great part helped me to do it by that true distinction you have now made between a Scutage as an Aid or Tax and as a Service the latter of which you assert might be granted to the King to be raised by his Tenants in Capite upon their under-Tenants whereas the former was only grantable in Parliament by the Common Council of the whole Nation Which Tax I Affirm was always granted to the King and imposed by the Common Council of the Kingdom only and not by the Tenants in Capite alone before the Expedition was undertaken Whereas Scutage Service considered as a payment of so much Money was never due or payable till the Expedition was ended and then only upon such as had failed to serve in Person or by sufficient Deputies and was then to be Assessed by the Tenants in Capite alone And though I grant it may seem to have been a Prerogative as you call it exercised by some of our Kings sometimes to grant his Tenants in Capite a License to take Scutage of their Tenants without the Assent of the Great Council of the Kingdom yet such Payments or Assessments were either according to Law and the express Grant of this Charter it self as is that Writ of King Iohn to the Sheriff of Glocestershire for the Assessing of an Aid or Scutage Service of three Marks on each Scute upon the Tenants of Saber Earl of Winchester for making his Eldest Son a Knight and which the said Earl might have claimed of his Tenants by the Common Law as also by the 20 th Article of that Charter but for Scutage Tax Littleton tells us Lib. 2. Sect. 101. That because such Tenements came at first from the Lords it is Reason they should have Escuage of their Tenants and the Lords in such case might
of the great Council and the common University of the whole Kingdom for it is obvious that when all the Lay Lords Earls and Barons to whom you may also add your Tenants in Capite if you please being met together were asked by the Bishops Abbots and Priors then present whether they would agree with them or not the Eaâ—ls and Barons answered for themselves that they would do nothing without the Common Vniversity which could not possibly be only the Lords Spiritual and Temporal and Tenants in Capite since it is plain they were now all here and referred themselves to another distinct order of Men different from themselves who were not there present as also from the Bishops Abbots and Priors who demanded there Consents to what they had agreed upon Now if the Temporal Lords and Tenants in Capite had concurred here had been the consent of the Common Vniversity of Lords and Tenants in Capite but besides the consent of all these there was notwistanding it seems required the Consent of another body of Men called here the Communis Vniversitas by which must be meant the Commons or no body since otherwise they might have all agreed together without any more ado M. I confess this Story out of Mat. Paris looks somewhat plausible at the first on your side but I doubt not if it be better considered it will do you little Service for what if by this Common Vniversity is to be understood the whole body of lesser Tenants in Capite who not â—itting with the Lords at that time they would do nothing without their Consents till it was proposes to them but that they did afterwards all agree pray read the rest of this Narration and it will make it clear enough that this Common Vniversity of Tenants in Capite did also agree with the Lords Bishops and Abbots the words immediately following in Mat. Paris are these Tunc de communi assensu electi fuerunt ex parte cleri Blectus Cantuariensis Wintoniensis Lincolniensis Wigoriensis Episcopi ex parte Laicorum Richardus Comes Frater Domini Regâ—â— Comes Bigod Comes Legr S. de Monteforti Comes Maresâ—ballus ex parte vero Baronum Richardus de Montfiâ—hes Iohannes de Baliol de Sancto Edmundo Rameseit Abbates ut quod isli duodecim providerâ—nt in communi recitaretur nec aliqua forma Domino Regi ostenderetur Authoritate duodecim nisi omnium communis assensus interveniret from which last passage it appears plain to me that in this Parliament the several Orders of men that were the constituent parts of it were only the Bishops Abbots Priors Earls and Barons and that all these put together were termed the Common Vniversity which is more comprehensive then University simply taken now if the Commons as at this day represented had been there we must have had some mention of them one way or other as well as of the Committees of the other Orders which made up the general Committee of Twelve so that it is plain beyond doubt that the Commons were not part of the Common Vniversity F. Then pray tell me who they were for the Historian tells that when all these Bishops Abbots Priors had now met together with the Earls and Barons yet these last â—ell them that without the Common University they could do nothing which had been nonsense if as your Doctor supposes the whole University or Community of the Kingdom had been all present M. I must confess this is a material Objection but what if to help him out I should tell you that by the Common University here mentioned is to be understood the body of the inferior Tenants in Capite under the degree of Barons and this Common University of Tenants in Capite might not have been present and sat with the Earls and Barons at that time when the Bishops and Abbots made this Proposal therefore the Lords might very well answer that till they had consulted the Common Universty or Body of Tenants in Capite they could do nothâ—ng and though this Body of Tenants in Capite did not then actually sit with the Earls and Barons yet doth it not follow that they made a distinct Estate by themselves different from that of the Lords or greater Tenants in Capite for then the Arch-bishops Bishops Abbots c. who are here expresly said to have consulted by themselves must have done so likewise therefore though our Author is not so particular as he might have been yet certainly this Common University were thereupon consulted and gave their Assents to the choice of this Committee of Twelve who were to draw up their answer to the King for the words are tunc ex communi assensu electi fuerunt which seem to refer to the Common University or Body of Tenants in Capite or else the Lords Excuse as well as the Election of these Persons by the Bishops Earls c. had been very insignificant F. This seems to me to be a precarious assertion and without any due proof for tho the words are Tunc ex Communi Assensu yet I very much doubt whether these words do refer to the Common Vniversity of the whole Kingdom or not for your self confess that Mat. Paris is short in this point and that it was not so seems most likely to me by this material circumstance that not one Person of the Twelve but was either a Bishop Earl or great Baron For that Richard de Monâ—sichet and Iohn de Baliot were so Sir William Dugdale hath proved in his Baronage of England Whereas if the University or Body of the Tenants in Capite had joyned in this Election it is not likely but they would have chosen some of their own Body to represent them in this Committee who were not Earls or Barons Since your self must confess that they then were a great Body of Men who were not Lords nor did at this time Sit or Act Joyntly with the Lords or greater Barons in this Assembly and likewise it farther seems highly probable that this Common Vniversity of Tenants in Capite take it in your sense did not give any Resolution in this matter since we do not find any Mony given in answer to the King's Request but only Complaints of and orders about Redressing of Grievances which was in those days often done in a great Council of the Bishops Lords and Tenants in Capite But I shall shew you now by some other Records which the Dr. himself hath made use of that there often was a distinct Assembly or Council of the Lords and Tenants in Capite different from that of the Commons or Commonalty of the whole Kingdom The first Record is to be found among the Patent Rolls of the 42. Hen. III. beginning thus Rex omnibus c. cum negotiis nostris arduis nos Râ—gnum nostrum contingentibus Proceres Fideles Regni nostri ad nos London in Quindena Paschae proximae praeterita faceremus convocari
cum de Negoâ—iis supra dictis maxime de prosecutione Negotii Siciliâ—e diligenter cum iisdem tractaremus ac ipsi nobis responderum quod si statum Regni nostri per Concilium Fidelium Nostrorum ratificandum duxerimus Dominus Papa Conditiones cirea factum Siciliae appositas melioraverit per quod Nigeâ—ium illud prosequi possâ—mus cum effectu ipsi diligentiam fideliter apponent erga Communitatem Regni nostri quod nobis Commune Auxilium ad hoc praestetur c. The rest I shall not trouble you with because it is not to our present purpose But you may here see that taking the Words Proceres and Fideles in your own sense the former for the Bishops and Lords c. and the latter for the Tenants in Capite who were called to consult about the business of Sicily which Kingdom the King had before too rashly accepted of from the Pope Yet tho they were all met they could do nothing but give him advice and could give him no Commune Auxilium i. e. common Aids or Subsidies without the consent of the Commonalty of the Kingdom Now what can this Community signifie but the Commons for your Lords and Tenants in Capite were all met already and if they alone made up the Common Vniversity or Body of the Kingdom as you suppose why could they not have immediately granted the King the Assistance he desired if they had a sufficient Power so to do without putting him off with a Promise that they would use their endeavour with the Community of the Kingdom as a distinct order or Body of Men That this Aid or Subsidy should be given him and upon this condition it is that at the end of this Record the King Promises them that before Christmas He would mend the State of the Kingdom per Consilium Proborum Fidelium Hominum nostrorum which can mean nothing less than a Parliament which the next Record in the same Roll recites was to meet at Oxford after the Feast of Penâ—icost which Record since it not only recites the King's Oath whereby he had bound himself to observe the Direction of a Committee of 24â— Fideles i. e. Faithful or Loyal Man 12 of which were to be chosen out of the Kings Council and the other 12. by the Procoreâ— or Magnates Regni which as I have already proved may take in the Commons as well as the Lords but whether by these wordâ— were meant the Lords or Commons The conclusion of this Record sufficiently confirms my Argument from the precedent Record that the Lords and Tenants in Capite could not then Tax the whole Kingdom at their Pleasure without the consent of the Commons or else to what purpose are these words in the conclusion of this last Record Promiserunâ— etiam nobis Comites Barones Memoraâ—i quod expleris Negotiis superius tactiâ— bonâ— fide laboraâ—unt ad hoc quod Auxilium nobis Communâ— praestâ—â—ur à Communitate Regni nostri in cujus rei c. Dat 2. die Maeii And it appears by the Date as also by the entry on the Roll that both these Records were perfected at once and concerning the same business and further to prove that the Parties appointed in the Record to be chosen ex partâ— Procerum were not chosen by the great Lords or Peers only may be seen from a Patent Roll of the same 42. Hen. III. whereby Henry de Wengham Dean of St. Martin le Grand and then Keeper of the Great Seal and Iohn Manseâ— Provost of Beverlay were two of the said Commissioners tho they were neither Barons nor Tenants in Capite as I know of hue only Eminent Lawyers and Men of great Abilities and so meer Commoners Yet Mat. Westminster calls these Men Proceres as you may see by this Passage speaking of this whole Committee Videntes ergo Proceres antedicti viginti quatuor ad Regis Regni regimen 〈◊〉 Electi c. I shall only now conclude with a French Record which the Dr. himself hath also given us at large and which refers to the said Committee of 24. above mentioned it begins thus Henry par la Grace de Dieu Roy d' Engleterre c. a touz ceus c. Sachiez ce pur le profit de nostre Reâ—ume é a la Requeste de nos â—auz Homes é Prodes Homes é du Commun de nostre Râ—aume Otreyames es vinc quatre Homes eusâ—ent pâ—â—r perqâ— tous ce quil ordencirent del Estat de nostre Reaume fust serm é Stable the rest being very long you may read at your leasure only I shall take notice of the date of this Letter to which the King also put to his Seal The conclusion being thus Coste chose feu feite a Lundre landemaigne prochein apros la Gaule bauâ—â—l'an de nostre corronement quarente secundo and tho the Dr. caâ— make nothing of the words Gaule baut this happened I suppose either from the bad Writing of the Record or from the Ignorance or Mistake of the Transcriber for it should be Gaeule d' Aut that is the Gula of August which is a great Holy Day in the Church of Rome upon the First of August called also St. Petri ad Vincula in the Memory of St. Peter's Chains curing of a Roman Virgin by her Kissing them I shall only observe from this Record that the Hauz or Prodes Homes mentioned in this Record being taken in the Drâ— own sense for High and Wise Men that is the Earls and Barons yet the words è du Commune that immediately follow them must needs signifie some Body of Men different from the former or else it had been a notorious piece of Nonsense since if the former words had taken in all the Lords and Tenants in Capite that is in your sense the whole Community of the Kingdom to what purpose are these words è du Commune that are immediately subjoyned since the hauz Prodes Homes would have served to express all the Lords and Tenants in Capite whether taken as Great or as Wise Men. M. I confess what you have now said would carry some weight with it were I not very well satisfied that you impose upon your self by taking as I told you at our last Meeting these words Communitas le Commune Communalti in a wrong sense for the Commons as they are now when indeed these words before the 49th of Hen. III. nay the 18th of Edw. I. as the Learned Dr. shews us in his 2d Edition against Mr. P. are always to be understood either of the whole Representative Body of the Kingdom in general consisting of the Bishops Abbots Earls and Barons together with all the Tenants in Capite called by Mat. Paris and other Historians Communitas Baronagii or else for the Community of the Tenants in Capite alone Stiled Communitas Regni in our ancient Records And this I think I can prove to
continued on now the Doctor upon second thoughts in â—is Edition in Folio will have them never to be Summoned any more than that once because forsooth he cannot find them mentioned in such express words as that he cannot evade them by saying the sense is equivocal and if the Commons not being expressly mentioned in our Statutes were a sufficient reason to prove them not to have been there were the Writs of Summons lost as well after as they are before the 23â— of Edward the First you might as well have faced us down that there were none in all that time till the Statute de Tallagio non concedendo you now mentioned And for proof of this pray see the Statute called Articuli super Charâ—â—s made in the 28 th of this King which is said to be made and granted by the King at the Request of the Prelates Earls and Barons who are only mentioned in this Statute and yet certainly the Commons were then at this Parliament as appears by the Writs of Summons and Expences I but now mentioned and sure their assents were given to it as well as the Bishops and Lords I could shew you the like in many other Statutes of this King nor are the words Communitâ—s or Commonalty ever mentioned above twice in all the Statutes of this King's Reign viz. in that of Westminster the first and that against Bearing of Arms neither is the word Commons to be found above once or twice in all the Statutes of Edward the Second in the Statutes made at Lincoln in the 9 th of this King 't is said to be done by the King the Counts Barons and other Grands of the Kingdom now if these general words did comprehend the Commons in those times you grant they were constantly Summoned to Parliament I desire you would give me any good reason why the same words may not as well comprehend them long before and if the bare omission of the distinct Orders or States of Men that gave their assents to the making of any Statute and the different penning of Acts of Parliament were a sufficient reason to prove they had no hand in it I doubt two parts in three of the old Statutes of Henry the Third and Edward the First would have been made without the Consents either of the Bishops or Lords since in most of them there is no mention made of either and that what I say is true pray at your leisure peruse these Statutes following viz. de Districtionâ— Scacarti of the 51 of Henry the Third with other Statutes made in the latter end of that King's Reign as also that of Actoâ— Burnel made in the 11 th of Edward I. that of Winchester made in the 13 th of this King that of Merchants in the same year as also those of Circumspecte agatis and Quo Warranto and see if you can find any mention either of the Lords or Commons in them But to come to direct proofs tho I grant the words Knights Citizens and Burgesses was not expressly mentioned in our old Statutes yet I shall prove to you by other words of a much more comprehensive signification that they appeared in Parliament in the very beginning of Henry the Third's Reign for this we need go no farther than the old Manuscripts as well as Printed Copies of Magna Charta which was first Granted in the second year and again confirmed in the 9 th of Henry the Third both which conclude thus Pro hac autem Donatione Concessione Archiepiscopi Episcopi Abbates Priores Comites Barones Milites libere Tenentes omnes de Regno nostro dedâ—iunâ— quintâ—m decimam paâ—tem omnium mobilium suorum Now can any thing be more express than this Clause viz. That the Archbishops Bishops Abbots Priors Earls Barons for themselves and the inferior Orders viz. the Knights and Freeholders and all others of the Kingdom by their Lawful Representatives gave this 15 th of their Moveables at both those Parliaments in which this Charter was first made and afterwards confirmed M. I confess this Authority looks very plausible at first but if it be strictly looked into I believe it will prove nothing at all for as to your interpretation of these words I do not allow it for reasons I shall shew you by and by but in the first place give me leave to dispute the Antiquity of this Charter which I do not take to be so ancient as you make it for tho I grant there was such a Charter made in the 2d and again confirmed in the 9th of Hen. III. yet you have already had my thoughts of this Charter which you suppose to be Henry the Thirds viz. that this which we now have is not properly his but his Son Edw. I. since it concludes this His testibus Bonifacio-Cantuariâ—nâ—is Archiâ—piâ—copo E. Londinensi Episcopo c. Anno. Regni-nostri Scil. Henrici 3. nono whereas this Bonifac here mentioned was not Arch-bishop of Canterbury before the 27. Hen. III. nor was there any one whose name began with E. Bishop of London during the time that Boniface held the See of Cantâ—rbuâ—y F. I am very glad you have made these Objections against the Validity of this Charter for if I can prove to you that what you have now urged from your friend the Dr. is a meer Evasion against the Charter it self I think you have reason to be my Convert In the first place pray give me leave to confirm the Valiâ—ity of the Charter it self I therefore freely grant that the Original of this Charter is not to be found among the Statute Rolls in the Tâ—ner where there is nothing left of it on Record except this confirmation of it by a Charter of Impeximus of Edw. I. the Conclusion of which is as you have now given and I think there cannot be a greater Pâ—oof of the careless keeping or voluntary imâ—ezlement of the ancient Statutes and Records of the Kingdom than the loss of this great Charter which certainly must have been inrolled at the time when it was made as well as every common Grant made by the King to ordinary Persons of Markets and Pairs since we find Copies of it still Exâ—ant in the ancient Annals of divers Monasteries where they were formerly kept as in particular in the Annals of the Abby of Barton Published in the first Volum of ancient English Writers lately Printed at Oxford which fully answers your Objection for instead of Boniface it is there Witnessed by S. Archibis Cant. i. e. Stephen Langton who was then Arch-bishop of Canterbury near 20 Years before Boniface there is also an c. after the name of this Arch-bishop And the same Charter is likewise recited word for word with the former and hath the same Conclusion concerning the granting of this 15th by all the Parties above mentioned in the Chronicle of Walter Hemingford Published by the Learned Dr. Gâ—â—e in his 2d Volum of English Historians only it hath no Witnesses Names
a few and for the greatest part but one in each year never but two in any year in all this long Reign unless it be the 39th in which there are four which is very strange that in so busie a time as most of this Kings Reign was there should be no more Rolls left and therefore it seems very probable that at least half are lost and in which might be many Summons as well to the Commons as to the Lords and if they are not lost pray tell me what is become of all the Writs of Summons to your lesser Tenants in Capite who certainly often met in this long Reign according to King Iohn's Charter but if you will tell me they are lost or omitted to be entred upon the Close Rolls I may with like reason and certainty affirm the same of the Writs of Summons to the Knights Citizens and Burgesses for if the one may be lost sure the other may be so too But what if after all these Writs you have produced were not any Summons to a Common Council or Parliament at all but only to a great Council of the Tenants in Capite which I have great reason to believe not only because the Title to the last Writ is only Summonitio ad Concilium and not Commune Concilium Regni but also because Mr. Selden and Mr. Pryn who certainly must have seen all these Writs as well as the Doctor and were as able to Judge of them never cite them for Summons to Parliament and Mr. Pryn observes of several Writs in which the like words of Summoning the Lords to give their advice are likewise found that they were only to such Councils or Treatises which were frequently used as Low as the Reign of Richard II. but if these Writs had been Summons to Parliament sure Mr. Selden and Mr. Pryn had no reason to bewail as they so often do the loss of not only of Parliament Rolls but of all Writs of Summons both to Lords and Commons except those of 49th Hen. III. till the 23d of Edw. I. But pray go on if you please to make good the rest of the positions you have now laid down M. I doubt not but in the next place to shew you though 't is true most of our Parliament Rolls are lost both from our ancient Historians and Statutes that there were no Commons in any Parliament during all the long Reign of King Hen. III. except in the 49th of that King I shall begin with the first Act of Parliament we have of the time of Henry III. which was made in the 20th of this King at Merton where though it is said to be provided and granted as well by the Arch-bishops Bishops Earls Barons as others yet the words Aliis and others are to be understood of the Tenants in Capite distinct from the Earls and Barons as I have already proved F. I shall answer your Authorities as you go you may say you have proved it but I know not when and why may not I with as good a Face maintain that these words Aliis do here signifie the Commons if the word Barons must take in all the great Lords and lesser Tenants in Capite as sometimes you suppose it doth when no other Lay-Members are mentioned but I have already observed that this Barones is a Cheveral word and to be stretch'd or contracted as best suits with your Hypothesis So I think I may with greater reason suppose the Earls and Barons to be all comprehended under the word Barones and the Commons under Aliis as I have already proved and which is also most suitable to the last Clause of Magna Charta of King Henry III. But you forget that I have I think sufficiently made out that the Commons had their Representatives both at the making and confirming of Magna Charta in 2d and 9th of Henry III. and therefore whatever proofs you bring to the contrary will come to late though I shall patiently hear what you have to say but if you have no more Authorities to produce from Statutes and Records which have not been already considered Pray proceede to the 49th of this Kings Reign and give me some reasons why the Commons were called in that year and never before nor after till the 18th of Edw. I. for they both seem to me very improbable suppositions M. I shall observe your Commands and shall give you as short an account as I can of this transaction First therefore I desire you to take notice that after Simon Monâ—fort and the rest of the Barons of his Faction had taken King Hen. III. and Richard Earl of Cornwall the King's Brother with many other of the Nobility Prisoners at the Battle of Lewes He carried them about with Him till they had taken in all the strong Forts and Castles of the Land and when this was done Mat. Paris tells us that calling together at London the Bishops Earls and Barons of that Faction which so seditiously held their King Prisoner they began to set up a Committee for the Government of the Kingdom consisting of Twelve Lords who were chosen out of the whole Community or Body of the Baronage without whose advice and consent or at least of Three of them no affairs in the King's Houshould or in the Kingdom should be transacted and to these Ordinances the King and his Son were forced to agree and though the Record of this Agreement recites that this Ordinance was made at London by the consent goodâ—liking and Command of the King and also of the Prelates Barons and of the Community there present yet I am not yet convinc'd that by the word Communitas in the Latin Record is to be understood the Commons but the Community of the whole Kingdom since this Agreement is Signed only by some great Earls and Barons and no Commoner witness to it but the Mayor of London whom your self will grant was no Parliament Man After which Simon Montfort the better to settle himself in his Usurpt Power and in those Lands and Castles which himself and those of his Faction had unjustly wrested from Prince Edward who was now also a Prisoner having delivered himself as a Hostage for the Performance of this forc'd Peace they in the first place sent out Writs in the King's Name unto divers Bishops Abbots and Priors and to such of the Noblemen as were of their own Party to appear at Westminster on the Octaves of St. Hillary next ensuing and the Doctor hath given us a Copy of the Writ of Summons to the Bishop of Durham as it is found in the Close Rolls of the 49th of this King and at the end of it it is thus recited â—eodem moâ—o Mandatum est Episcopo Carleol As also to divers Bishops and Abbots all of their own Party and Faction there being above an Hundred Abbots and Priors then Summoned more than ever were I believe before or since and then follows a short
Writ to the Sheriffs of Counties to Summon two Knights de Legalioribus Discretoribus singulorum Comitatuum â— though it doth not appear by the Writ whether the Sheriffs of the Counties were to Elect and send these Knights the Sheriffs being then of the Faction and made by them for 't is there said only quod venire faciarâ— There are also other Writs recited to have been directed to all the great Cities and Towns of England as also to the Cinque Ports to send two of the most Legal and Discreet of each of the said Cities Burroughs Towns and Cinque Ports to the said Parliament at Westminster at the time aforesaid So that without the History of this Niâ—k of time these Writs which are said to be for the Delivery of the Prince out of Prison and for the settling of tranquility and Peace in the Nation cannot be understood But Prince Edward's Release could not be agreed upon in this Parliament whatever other Business might be dispatched So that things still remained in this uncertain condition the King being all this time a meer Shadow until such time as Simon Montfort and Gilbert de Clare Earl of Glocester falling out the latter at last took up Arms and joyning with the Earles of Surry and Pembroke to whom also came Prince Edward after he had made his Escape from Hereford they altogether raised considerable Forces against Monfort who meeting them and joyning Battle near Evesham Monfort with one of his Sons and many other Lords and Knights were Slain and all his Party routed Now pray tell me if this is not a very clear account from the History of the matter of Fact why the Commons were first called to Parliament by Monfort during his Rebellion and I think I can also give you very good reasons and Authorities to back them why they were again discontinued all the rest of this Kings Reign untill the 18th of Edward I. F. I shall tell you my opinion of your Narrative by and by but in the mean time pray satisfie me in one or two Questions pray Sir what may be the reason that we can find but twenty three Earls and Barons Summoned of that great number there was then and only to thirteen Bishops in this Parliament and yet at the same time there should be summoned above an hundred Abbots and Priors and but five Deans of Cathedral Churches pray why might not these numerous Barons be trusted as well as all the Abbots and Priors M. As for his not Summoning all the the Earls Barons and Tenants in Capite but putting Knights of Shires and Burgesses in their rooms there may be a very good reason given for it viz. the danger that Simon Monford and his Privado's apprehended from the too great Concourse of the Nobility and their great Retinueâ— and the Example of his own and the Barons Practices at Oxford in the Parliament of 42 d. of Henry the Third might be the cause why they altered the ancient Usage and of their sending Writs out commanding the Sheriffs of each County as also the Cities and Burghs to send two Knights Citizens and Burgesses respectively But the Reason why there was so many Abbots and Priors Summoned was because Simon Monfort thought himself sure of them He was a great Zealot and a Godly Man in those times and a great Minion of these Religious men as then called as also of the Bishops and Clergy and they were at least seemingly Great Favourites of his F. I must confess there is some colour of Reason why Simon Monfort should Summon so many Abbots and Priors to this Parliament if he were sure of all their Votes before hand but there is no certainty of this for if he had been so sure of them there was as much reason why he should have called them all likewise to the Parliament at London which you say he Summoned the year before when with the Consents of the Bishops Barons and others he made the new Ordinances you mention but you cannot find in any Historian or Record that he then Summoned so many of them and it seems pretty strange that all these Abbots and Priors and Deans not a fourth part of which were Tenants in Capite should all take the trouble to come to this Parliament without any scruple if neither they nor their Predecessors had ever been Summoned before But the other reason you give why so many Earls and Barons should be omitted is much more unlikely for if the numerous Barons Factious Practices at Oxford had before frustrated Monfort's designs there had been indeed some reason why he should have done all he could to have hindered their coming again whereas on the contrary the Earls and Barons at the Parliament at Oxford though they came thither with Arms and great Retinues yet it was only to joyn with him and to force the King to agree to the Oxford Provisions But if the Commons were now Summon'd as you suppose to curb the extravagant Power of the Lords yet it could not be his Interest or indeed in his Power so to do not the latter because the Earls Barons and Tenants in Capite were too powerful and numerous a body to have suffered such an affront and breach on their Right as this was Nor could he and his two and twenty Companions have ever dared to have displeased so great and powerful a body of men as you must allow your great Barons and Tenants in Capite both great and small then were and who made such a powerful opposition for their Liberties in King Iohn's time or that they would have thus tamely permitted men wholly of the Sheriffs choice to have thus taken away their places in Parliament and made Laws for them much less the Citizens and Burgesses most of whom were certainly not Noble by Birth nor yet held Lands in Capite nor could it be for Monfort's Interest so to do for the greatest part of the Earls and Barons were of his side already and thus to â—â—clude them had been the only way to disoblige them and make them leave him and go over to the King's side So that I must needs tell you upon the whole matter granting Monfort to have been such a Knave and Hypocrite as you make him yet certainly he was no Fool but a great Politician and I leave it to your self or any indifferent person to judge whether it was possible for him to do so silly and unpolitick a thing as this For granting all the Abbots and Priors to have been of his side as you suppose they could no way counterballance the great Power of those Earls and Barons and numerous Tenants in Capite that were all hereby excluded So that let the Commons have been Summoned when you will it was certainly before this 49 â—h of Henry the Third or not at all But to give you my opinion why so few Earls and Barons are mentioned in this Record of the 49 of Hen. 3 d to have been Summon'd
to this Parliament I conceive it was not out of any jealousie or suspition in Simon Monfort of those who were then his fast Friends but out of pure carelesness or omission of the Clerks who I suppose through hast inadvertency or multiplicity of business omitted to enter the names of all the rest of the Earls Bishops and Barons to whom Writs of Summons were likewise sent and that I do not speak without Book I appeal to the Record it self where there is a blank space left unfill'd of about four Inches breadth which could be left for no other end than to add the names of all the rest of the Earls and Barons who were certainly Summoned to that Parliament as well as those whose names are there expressed M. I shall not longer dispute this point but I think you must grant that the Commons are never mentioned in any Record or Statute of this King for after his Victory at Evesham he called a Parliament at Winchester whereto we do not find any Commons Summoned as before but the King by the advice of his Magnates alone Seised the Liberties of the City of London and also they gave Him all the Lands of the late Rebels And then there was after this a Parliament Summoned at Kenelworth in the 50 th of this King where it was agreed by the common assent of the Bishops Abbots Priors Earls Barons and all others that six Persons who were all except one either Bishops or Barons should chuse six others and the whole twelve were to judge concerning those who were disinherited for their late Rebellion and their Determination or Award is call'd Dictum de Kenelworth and was made to better the condition of the disinherited and to turn the Forfeitures and Loss of their Estates into a Composition for them after the value of five years Purchase to be paid at two or three short payments yet we do not find that to this Parliament the Commons were at all Summoned but to the contrary for though it is true that the Statute gives us all their Names Yet the Doctor further proves to you from Sir William Dugdale's Baronage that there was not one of them but what was either a Bishop or a great Baron of the Kingdom whereas had there been any Commons in this Parliament they would certainly have had Commissioners of their own order as well as the Bishops and Lords F. I shall give you a short answer to your Authorities from the Parliaments of Winchester and Kenelworth as for the former you must own that all the Rolls of it are lost and that there is no more left of it on Record than that Writ or Commission which the Doctor has given us which recites that by the unanimous consent of all the Magnatum or great Men as the Doctor renders it the King had the seisin and possession of all the Rebels Estates given to him which is no argument to prove that no Commons were there since I have so often made out that under this wordâ— Magnatum not only the Knights of Shires but Citizens and Burgesses were often comprehended 'T is true there are no Writs extant to prove the Commons were now Summoned neither is there any reason to believe the contrary since if it were a cunning invention of Montfort to Summon the Knights Citizens and Burgesses to abate the power of the Tenants in Capite it was sure as good policy for this King to continue so politick an Institution which would for the future serve for so good a ballance not only against his Tenants in Capite but his great Lords also as for the Parliament at Kenelworth I shall admit all the matter of Fact to be true as you have related it from Mat. Westminster who says that the Twelve Commissioners appointed to draw up the Statute of Kenelworth were chosen de Potentioribus Procerum Prudentioribus Praelatorum and also that the French Record cited by the Doctor together with Sir William Dugdale's Comment upon it make it out plain enough that the Lay Commissioners who were chosen by all the parties there named to make this Statute were all great Earls and Barons though in the Record it self only stil'd Knights Well what follows from all this that the Commons could have no hand in this choice because the tous Autres or omnes Alii mentioned in this and other Records must needs always signifie the smaller sort of Tenants in Capite and I say it signifies the Commons as now taken whether you have made good your Interpretation by any cogent proofs I must leave to your own ingenuity for to tell you the truth I think your Doctor has led you astray in this point and till you can make it out better than you have done I must beg your pardon if I keep my old opinion and if your Argument be good that no Commoners were there because none of them were chosen Commissioners then by the same Argument none of the small Tenants in Capite were there neither because none under the degree of an Earl or Baron were Elected As for the want of Writs of Summons to these Parliaments if that were to be the rule that makes as much against the rest of the Tenants in Capite who were no Barons nay the very Bishops and Abbots and Lords since there is no Writs of Summons found for their appearance at either of these Parliaments and so the King might call whom he pleased M. In the first place it does not follow that because Montfort had Summoned some of the Tenants in Capite to appear for all the rest and that he also called some Citizens and Burgesses to this Parliament of the 49 th yet the King might have very good reasons though we cannot now positively tell what they were nor to follow this new Invention of Monforts however it might then serve the turn for perhaps the King did not like it because introduced by a Rebel And he had also by his Victory at Evesham so quelled the power of the great Lords and Tenants in Capite that I believe he was afterwards able to call or omit whom of them he pleased according to the Testimony of Mr. Cambden's Nameless Manuscript Author cited in his Brittania that after the horrid troubles and confusions of the Barons Wars only those Earls and Barons Quibus Rex dignatus est brevia Summonitionis dirigere venirent ad Parliamentum suum non Alii And that this was true in matter of Fact I shall prove from the next Statute of Hen. 3. which is extant viz. that of Maâ—lâ—bridge made in the 52 d. year of this King to which there were no more Summoned than some of the more Discrâ—â—t of the Greater and Lessâ—r Barons as appears by these words in the Preface to that Statute Convocatis Discretioribus ejusdem Regni tam Majoribus quam Minoribus Brovisum est Statutum ac concordatum c. which seems to have been done by the King
It is evident from this Record meaning that of the 34th of Edw. I. abovementioned who were the Populus or People intended by the Historian in this place to wit the Comites Barones alii Magnates nec non Milites Comitatuum Now I desire to know whether the Knights of the Shires were not then Commoners as well as now tho' reckoned among the Magnates and as a Superiour Order to the Citizens and Burgesses here called by a general word Mercatores who then gave a 20th part of their Moveables by themselves But that the word Plebs does not only signifie the Lay Nobility but the Commons too in both the Quotations you have made use of out of Mat. Westminster is also as plain for in the first Instance concerning the Reception of the Legates is it to be imagined that none but Earls and great Lords accompanied them and that there were no Knights or Gentlemen amongst them and as for the words Primates and Optimates I think I have sufficiently proved that those do not only signifie the Lords or Greater Nobility but the lesser also Nay the Chief Citizens and Magistrates of Cities and great Towns As for the next Authority concerning the Plebs that Granted the Eigth Penny it is much more evident that the Commons as well as the Lords must be comprehended under that Term And that this is so I need go no further than the Dr's own Concession in the same place a little farther which you may read in these words And that the Agreement for the Confirmation of the Charters here mentioned was made and the Eighth Penny granted by the Earls and Barons and perhaps the Knights of Shires and that they were the Plebs that stood about the King in his Chamber is clear from the Writ of Summons of Parliament for two Knights in every County dated Septemb. the 15 th immediately following to come and receive the Confirmation of the Charters and his Letters that the paying of this Eighth Penny should not prejudice the Commons for the Future and to do further what by his Son and his Council should be Ordained So that the Dr. himself is forced to confess tho' sparingly that the Knights of Shires were likewise there and comprehended under the word Plebs at the time of this Grant The King held this Parliament at his Pallace of Westminster in some of the Halls or great Rooms and the Commons might very well sit in the now Court of Requests then called the Alba Aula or White Hall where Parliaments have been frequently held and from thence be sent for by the King into the Painted Chamber or now House of Lords where the King then sate and which might in respect of the Hall from whence they came be very well called Camera Regis for none can imagine his Presence Chamber or Bed-Chamber could hold all that Company and in that Room the King might make that Speech to them which this Author mentions and then upon his promising to renew the Charters followed the Granting of the Eighth Peny ab Incolis by the whole People immediately granted the said Subsidy Now the Dr. grants in this place That the Incolae here meant by the Historian were the Incolae Regni such Inhabitants as used to Pay Subsidies and Aids only the Plebs must here signifie the Lay Nobility Now if the Incolae Regni were such us used to Pay Aids and Subsidies who made this Concession can any Man doubt but that this Grant was made by their Representatives of the Knights Citizens and Burgesses for if the Tax was general upon the whole Kingdom as it appears it was can you imagine that the Citizens and Burgesses were not there present when this Tax was given as well as the Knights of the Shires since it was to be levied upon all alike Nor is the Dr's Objection of any weight That because the King not long after Summoned another Parliament when he was beyond Sea to meet his Son Prince Edw. at Westminster That therefore it was not probable that if the Commons had been at the Agreement and granting of the Eighth Penny in the King's Chamber they would have been dismissed and called again about the same business in so short a time seeing the Confirmation of the Charters was dispatched in Six Days when the Parliamement â—et October the Sixth For the Dr. is very much mistaken to imagine that this was the same Business they met about before when the very Writ of Summons shews the contrary For the Tax was given already and therefore they could not meet about that but the Truth was the King went away in haste into Flanders without Confirming the Charters So that before the People would give any more Money his Son Prince Edward was forced to confirm them as the Dr. himself confesses in the same place After the Confirmation of these Charters and that the Earls and Barons were satisfied But as for the Dr's wondrous discovery of the false bad Translation of the old French Coronation Oath I do so far indeed agree with him that the words le Commune aura elu are not to be translated which the Commons or Vulgar People but the whole Community shall chuse rendered here by the word Vulgus by the Old Monkish Translator yet this can by no means signifie only the Bishops Abbots Lords and Tenants in Capite for who ever knew the word Vulgus to signifie the Superior Clergy and Nobility and so to exclude the whole Body of the People in general But Mat. Westm. tells us Concessus esâ— viz. to Eâ— I Novenarius Denaâ—ius à Vulgo à Clero vero Denus ad Scotorum Pâ—rtinaciam reprimendam who had then invaded Northumberland and harrassed the other Northern Countries Now pray read the Dr's Comment upon these words in his Glossary Here Vulgus is the same with Populus and Plebs when opposed to Clerus or joyned with it as a Distinct Body of Men and Clerus Populus Clerus Plebs Clerus Vulgus are the Clergy and Layety in the meaning of this Historian whether the Earls and Barons alone or the Temporal Earls and Barons with the Commons were understood by them that is the Commons represented in Parliament and not the Multitude or Rabble Which indeed is a worthy discovery of the Dr's Nor do I know any body so mad as so to render it in the Coronation Oath but that this word Vulgus when put for the whole Layety of the Kingdom is very ancient in that Oath See the Old Coronation Oath in Toâ—tle's Collection of old Statutes who transcribed it out of some ancient Latine Copy of that Oath or else from that Clause in the Coronation Oath of R. Richard II. which is still to be seen upon record I beg your Pardon for speaking these so long upon the true signification of these words Clerus and Populus Plebs and Vulgus since there was a necessity for it by reason of those false glosses
that they ever should desire this as a Priviledge and therefore it is onely since the neglect of this good old Law for Wages that so many Burroughs which Mr. Prin here mentions to have had Precepts again sent them of late Years to Elect Members after some Ages Intermission desired to have this Priviledge renewed to them as was done in the Case of those Burroughs he here mentions which yet certainly had been very gross and contrary to all common Right if the House of Commons had not then believed those Burroughs to have a had higher Right by Prescription than the Sheriffs Precepts gave them as for the last Rank viz. those Burroughs created by the Writs or Charters of our Kings I need say but little since this Author here grants such Creations to have been good before the Statute of 5th of Richard the 2d but not since tho I cannot see any Reason for it why he should give the Sheriffs such Power of making new Burroughs after this Statute in the time of Henry 6th as he does in the Case of Gatton and those other Burroughs he there mentions with it and yet deny this King the like Prerogative But yet for all this as I will not say there were none so are there but very few Examples of Charters that conferr upon any City or Burrough a Power to send Members to Parliament who had it not before by Prescription tho I grant that Priviledge may be mention'd in the Charter and so put it in the Power of the Major and Aldermen to Elect for the future when it was the whole Populace or all the Inhabitants of that Town that were to Elect before But to shew you from the very Statutes themselves that Mr. Prin has here cited that the Right of the Cities and Burroughs to appear in Parliament was not anciently looked upon to have had no other Original then the Favour of the Sheriffs Pray read these Clauses of the Statutes he has here quoted the first is that memorable Statute of the 5th of Richard 2d 2d Parl. c. 5. now mentioned and which I have already cited which expresly Enacts That all and singular Persons and Commonalties which from henceforth shall for time to come have Summons of Parliament shall come from henceforth as before to Parliaments in the manner as they be bound to do and hath been accustomed within the Realm of England of old time and whatever Person of the said Realm which from henceforth shall have the said Summons be he Archbishop Bishop Abbot Prior Duke Earl Baron Banneret Knight of Shire Citizen of City Burgess of Burgh or other singular Person or Commonalty do absent himself and come not at the said Summons except he may reasonably and lawfully excuse himself to our Soveraign Lord the King he shall be amerced and otherwise punished according as of old times hath been used to be done within the said Realm in the said Case and if any Sheriff of the Realm be henceforth negligent in making his returns of the Writs of the Parliaments or that he shall leave out of the said Returns any Cities or Burroughs which be bound and of old Times were wont to come to Parliament he shall be punished in the manner as was accustomed to be done in the said Case of Old Time in the French d' Anciente From which Statute we may draw these Conclusions First That the Knights Citizens and Burgesses are as supposed by this Statute to have a like Right to have Summons to Parliaments as hath been accustomed of Old Time as well as the Lords Spiritual and Temporal here mentioned Secondly That by these Words have been accustâ—med of Old Time or d' Anciente we are to understand a general Custom of the Realm Time out of Mind that is by Prescription so that if the Bishops Abbott and Temporal Lords are here acknowledged to have had a Right to sit in Parliament by Prescription so have the Commons likewise by the same Words equally applyed to all the Orders here mentioned Lastly That if the Sheriffs shall neglect in making Return to any such Cities and Burroughs which were thus bound to come to the Parliament of Old Time he shall be punished as hath been accustomed to be done in all time past or d' Anciente now pray tell with what colour of Justice the Sheriffs could be thus punisht if there had been no certain rule to know what Câ—ties and Burrough were bound to come to Parliament of Old Time but it had been wholy left at the Sheriffs Discretion which they should Summons and which they would omit let us next compare this with the Statute of 23d of Henry 6th c. 15. which Mr. Prin has here also given us reciting That divers Sheriffs of Counties have sometimes returned none of the Knights Citizens and Burgesses lawfully chosen to come to the Parliaments but such Knights Citizens and Burgesses have been returned which were never duely chosen and other Citizens and Burgesses than those which by the Mayors and Bailiffs were to the said Sheriffs returned and moreover by no Precepts to the Mayors and Bailifts or to the Bailiff or Bailiâ—â—i where no Mayor is for the Electing of Citizens and Burgesses to come to the Parliament and then appoints the Penalties for the said abuses and neglects Now pray let me ask you whether this bare Abuse of the Sheriffs and neglect of the duty of their Office here condemned by this Statute and for which the former Statute of Richard II. declares them punishable at Common law as this Act makes them liable to it by Statute Law could give them such an Arbitrary Power as this Author fancies much less can serve to corroborate his Opinion as he here supposes it does concerning the true original continuance discontinuance reviving and antiquating Parliamentary Cities and Burroughs not by Charters and Patents from the King or Prescription time out of mind but by the Sheriffs Arbitrary Power and Returns by the forecited general Clauses in the Writs But since I confess I have dwelt too long on my Answer to Mr. Prin's Arguments I shall conclude with only giving you one Record which I hope will sufficiently satisfie you that not only St. Albans but several other Antient Burroughs claimed to send Burgesses to Parliament by Prescription which appears by a Writ or Commission reciting a Peâ—ition of the Town of Barnstaple to King Edward the Third and his Council in Parliament which is to be found in the Patent-Rolls of the 17th of this King seting forth that the said Town had been a Free Burrough à tempore câ—jus contrarii memoria non exisâ—it and as such enjoyed divers Liberties and Free Customs by a Charter of King Athelstan and this among others ac quod ad singula Parliamenta nâ—stra dictorum Antecessorum nostrorum among which the said King Athelstan must certainly be reckoned for one duos Burgenses pro Communitate ejusdem Burgi mittere solebant and therefore
England and Scotland there was no difference in Point of Priviledges as to being taxed or having Voices in the great Council of the Kingdom between the higher Nobility such as had the Titles of Dukes Marquesses and Counts and simple Gentlemen whereas in England it has been always otherwise at least since the Conquest and the Earls and Barons had by 〈◊〉 Tenures Places as Lords or Peers in the great Council of the Kingdom and so made a distinct Body from the rest of the People whereas in other Countreys the higher Nobility and Gentry are reckon'd as all one Estate and therefore it was but Reason that the rest of the Inferior Nobility or Gentry should have their Representatives in this great Council or Parliament or otherwise they would have been as very Vassals as to their Estates to the great Barons and Tenants in Capite as the Boors in Germany or the Paisants in France were to their Lords by whom they were taxed aâ— their Pleasures which they never were in England as we can find either from History or Records So that tho I grant that it is the municipal Laws of each Kingdom or Nation that must determine what are the governing part of the People in those Countreys yet tho that was not absolutely the same in all of them as it is in England yet we find it so in the main and the Representatives of the Cities and Towns do sufficiently assert the Right of the Plebians or Common People who make the 3d Estate in those great Councils But I must here except Sweden in which it is certain that the meer Rusticks or Boors had always their own Deputies in their Dyets as well as the Cities and Towns and if Sweden had this priviledge I cannot see why the English Gentry and Yeomanry who make but one body of Commons might not have had the like till you can shew me more sufficient proofs to the contrary M Well Siâ— I shall consider of what you say but since it grows late that we may wind up this Conversation as fast as we can give me leave to tell you that tho' I should admit all that you have hitherto averred for truth and that we should grant the Commons of England to have been as ancient a part of the great Council or Parliaments as any of the other two what is that to the main Point in question between us viz that of Non-resisâ—ance of the King upon any account whatsoever or how can you justsfie those of the Clergy Nobility and Gentry of the Church of England for taking up Arms against the King and contributing so much as they have done to the driving him away and in bringing things to this confusion they are now in since let your Constitution of great Councils and Parliaments be never so ancient let us also for once suppose them as you do to have a share in the Legislative Power of the Nation yet how can this authorize them much less any private persons out of Parliament to take up Arms against the King or those commissioned by him since the whole current both of Common as well as Statute-Law runs directly against you and all with one consent assert that the disposal of the Militia or Military Force of the Kingdom has been even so absolutely in the King's power and at his disposal that no man can without being guilty of Treason take up Arms whether offensive or defensive without his Commission to authorize him to do it so that no Government in the World is more averse to all forcible Resistance than our own the King having been even from your time beyond memory so fully possest of the whole Militia or power of raising offensive or defensive Arms in this Kingdom that it is expresly forbid by the Statute of the 7th Ed. I. against coming to Parliaments and Treatises with force of Arms in which the King sets forth That in the last Parliament the Prelates Earls Barons and the Commonalry in Latine Communitas or Body of the Realm have said that to us i e. to the King it belongeth and our part it is through our Royal Seignâ—ury to defend that is in old French to forbid force of Armour and all other force against our Peace at all times when it shall please us and to punish them according to our Laws and Vsages of our Realm and hereunto they are bound to Aid us as their Soveraign Lord as oft as need shall be From whence you may observe that it is the King's Prerogative to forbid all manner of Arms or Armed force within the Realm so that no man can lawfully Arm himself without his Authority And this is further confirm'd by the Statute of 25 Ed. the Third concerning Treasons wherein it is declared without any excepted Cases to the contrary That to Levy War against our Lord the King in this Realm or to be adherent to the King's Enemies in his Realm giving them Aid or Comfort in the Realm or elsewhere is Treason And Sir Edward Coke upon this Statute saith thus That this was High Treason before by the Common Law for no Subject can Levy War within the Realm without Authority from the King and if any man Levy War to expulse Strangers to deliver men out of Prisons to remove wicked Councellors or against any Statute or to any other End pretending Reformation on their own heads without Warrant this is Levying of War against the King because they take upon them Royal Authority From which Statute as also from your own Oracles Sir Ed. Coke 's Interpretation of it you may observe that it is not only Treasâ—n to make War against the King's Person but to take Arms to make any Reformation or Alteration in Church or State without the King's Authority nor can any Subject of England justifie the taking Arms upon any account whatsoever unless it be by the King's Commission and therefore all the Judges of England in the Case of Dr. Story who was Executed for Treason in the Reign of Queen Elizabeth did with one consent agree that the very Consultation concerning making War against the Queen shall be interpreted a making War against her Person and supposes a design against her Life So that nothing seems plainer to me than that by the Ancient as well as Modern Laws of England all defensive as well as offensive Arms are expresly forbidden and condemned F. I think I shall be able to make out notwithstanding what you have now said that all Resistance of the King or those commissioned by â—im is so far from being Treason as you suppose that it is every mans duty to oppose him in case he goes about to set up instead of a Legal Monarchy a Tyrannical Arbitrary Power in this Nation since this is but to preserve the Original Constitution of Parliaments which in some cases cannot be maintained without such a Resistance be allowed But to proceed to the Authorities you bring from our Statutes as for the first you urge
of this I shall proceed with the earliest Instances of this kind after the Conquest viz. in the Time of King Richard the First during whose absence in the holy Land he had committed the Government of his Kingdom to William Bishop of Ely who abused his Power by an Arbitrary and Insolent Carriage affronting and oppressing Iohn Earl of Morton the King 's own Brother and Geoffry Arch-Bishop of York the King 's base Brother whereupon they rose up against him and having the Bishops the Earls and Barons of their side appointed the said Bishop a day to answer to his Crimes in the King's Court or great Council of the Bishops Lords and Tenants in Capite then called Curia Regis where when he refused to appear they all with one consent came to London and fought with the Followers and Adherents of the said Chancellour by the way when they came to Town Earl Iohn with the Arch-Bishops of York and Rouen with all the Earls and Barons together with the Citizens of London met in St. Paul's Church-Yard and there it was proposed that the said Chancellour should for his Evil Government he deposed and banisht the Kingdom and so he immediately was by the general Consent of the Common Council of the Kingdom so that you see the Nobility Clergy and People had then no notion of an Irresistible Power in the King and those put in Commission by him when they found their Power to grow Tyrannical and Insupportable M. But if I forget not you omit one material Circumstance in this Affâ—ir which seems to make against you which is that Arch-Bishop of Rouen and William the Earl Mareschal did at that time produce the King's Letters signed with his 〈◊〉 wherein he had appointed that they two should be associated in the Government with the Bishop of Ely and that he should do nothing without their privity and consents and of those associated with him in the business of the Kingdom and that if he offered to do otherwise he should be deposed So that it seems what they now acted was not so muchin opposition to the King's Commission as to the Bishops who had refused to obey his Commands F. I confess it was as you set forth yet this makes nothing against my Opinion since it is apparent that Arms were taken and this Resistance made by the major part of the Bishops Earls and Barons together with the Londoners before ever it was known that such Letters were written by the King And so it seems they would have done much the same thing if there had been no such Letters sent by the King at all You may also rememâ—er that all these proceedings also were approved of and confirmed by the King himself But that I may proceed in my History of Non-Resistance I come to the Reign of King Iohn his Brother who when he had refused the Arch-Bishop of Canterbury and all the Bishops Earls and Barons of the Kingdom to confirm the great Charter of King Henry the First they together with the rest of the great Men and People of the Kingdom of all degrees and conditions took up Arms and made a vast Army resolving never to lay them down till he had new granted and confirmed the Charters of Liberties and Forrests till at last the King finding himself almost quite forsaken so that he had scarce five Knights left about him he was at last forced to meet the said Bishops Earls Barons and People at Runne-Mead and there to grant them that great Charter which has been the Subject of so much discourse between us so that you see here that the Church of England in those Times if the Bishops and Clergy are the Representatives of this Church had then no notion of this Doctrine of Passiâ—e Obedienâ—e to the King 's Absolute Will and Commands M. I cannot deny the matter of fact to be as you say but yet you may remember that the same Author tells us that the Pope thought the King hardly dealt withal in this matter so that he gave Audience to the King's Ambassadors concerning the Rebellions and Injuries which the Barons of England had committed against their King and that upon a solemn hearing of the whole business and after a consultation with his Cardinals he did as Supreme Lord of Engâ—and after King Iohn's Resignation of his Crown to him by his Bull then published make void the said great Charters of Liberties and Forrests and condemn all the Barons proceedings as against their Duty and Allegiance to the King their Soveraign Lord so that it seems this was not approved of any where but by the Actors the Pope thereupon Excommunicating the Barons and Suspending the Arch-Bishop of Caâ—terbury for joyning with them F. I believe you will make nothing of this Objection for it appears from the same Author that the Pope had before this Excommunicated the King and as far as lay in his power depriv'd him of his Kingdom and absolved all his Subjects of their Allegiance so that it is plaiâ— it was not out of any true Principle or hatred of Rebellion and Resistance in Subjects that the Pope had thus acted but purely to gratifie the King at this juncture of time and to defend him in his Tyranny and breach of his own Charters because he was then become his Vassal and so he cared not how much he oppressed his Subjects because he was thereby the more able to pay him the Tribute before promised and he could also expect the more securely to extort Money from the whole Kingdom But that this Bull of the Popes was contrary to the King 's own Express Act and Agreement appears plainly by that Clause which is still to be found in a Charter under the Seal of this King and which seems to have been the Heads of the great Charter according to which it was drawn into the Form we now find it in Mat. Paris in which it is expresly provided and granted by the said King that in case he should go about to break or infringe any Clause in the said Charter and shall not amend it within the space of forty days that then Iâ—li Barones cum Communia totius Terrae distringent gravabunt nos modis omnibus quibus pouerint aut scil per captionem Castrorum Terrarum possessionum aliis modis quibus potuerint donec fuerit emendatum secundum arbitrium eorum salva Persona nostra Reginâ—e nostra Liberorum nostrorum cum â—uerit emendatum intendent nobis sient prius fecerunt So that you see here in the Judgment even of the King himself they might freely resist and take up Arms against him till he made good every Article of these Charters if violated and were not to return to their Obedience till it was amended and the like Clause almost word for word is also to be found in the conclusion of the great Charters published in Mat. Paris M. I grant the Clause is there as
this Letter I now mentioned was writ to the Pope which transaction I shall give you almost verbatim out of Mat. of Westminster and Henry de Keyghton in Anno 1297. being the 26th of Edward the First when the King having extorted a great sum of Money from the Clergy and People contrary to Law and being then going into Flanders he called a Parliament at Westminster where most of the Earls and Barons refused to appear until such time as their Petitions for the ease of their Countrey were heard and that the King would again confirm Magna Charta Yet nevertheless the King upon his confession of his Male Administration which he made before all the People with Tears in his Eyes and promise of amendment then obtained of the Commons an Aid of the Eighth Penny of their Goods But as soon as the King was gone over the Constable and Earl Mareschal with other Earls and Barons went to the Exchequer and there forbad the Judges to levy the said Tax upon the People by the Sheriffs because it was done without their knowledge without whose consent no Tax ought to be exacted or imposed so that the said Earls and Barons being thus gathered together and the greater part of the People joyning with them at last Prince Edw. then Lieutenant of the Kingdom was forced to call a Parliament to which the Earls and Barons came attended with great multitudes both of Horse and Foot but would not enter the City of London till the Prince had in his Fathers name confirmed the great Charters and had passed the Statute de Tallagio non concedendo both which were afterwards again confirmed by the King his Father some time after his Return And this will serve to explain the last Article in this Statute which comprehends the King's Pardon or Remission to Humphrey Earl of Herâ—ford and Essâ—x then Constable and Roger Bigot Earl of Norfolk Mareschal of England the two principal Leaders in the late Resistance with all other Earls Barons Knights and Esquires of their Party all Leagues and Confederacies as also all Rancour and Ill-will with all other Transgressions against them And pray see Sir Edward Coke's Comment on these words you compare our English Histories with this Act of Parliament the Old saying shall be verified That Records of Parliamentâ— the truest Histories The King had conceived a deep displeasure against the Constable Mareschal and others of the Nobility Gentry and Commons of the Realm for denying that which he so much desired yet for that they stood in defence of their Laws Liberties and Free Customs c. I suppose he refers to the Resistance but now mentioned whereupon he did not only restore the same to them as aforesaid but granted special Pardon to those against whom he had conceived so heavy a displeasure c. and such a one as you will scarce read the like and after a short gloss upon the words Rancour and Ill-will he thus comments on these words etiam transgressiones si qâ—as fecâ—inâ— here the words si quaâ— sicâ—iâ—t were added lest by acceptance of a pardon they should confess they had transgressed So careful were the Lords and Commons to preserve their Ancient Laws Liberties and Customs of their Countrey so that it is plain that Sir Edward Coke then thought the Lords and Commons had not transgressed in thus standing up tho' with force of Arms for their just Rights and Liberties and which sufficiently proves that this Author did not conceive such a Resistance to be making War against the King and so Treason at that time at Common Law and consequently not to be afterwards Treason by the Statute of 25th of Edward the Third as you would have it since that Statute dâ—es not make any other Overt-acts to be Treason but what had been so by Common Law before this Statute was made But in the Reign of this King's Son Edward the Second there were much more pregnant and fatal proofs of the exercise of this Right of Resistance by the Earls Barons and People of England against Peirce Gaveston whom having been before for his Mis-government of the King banisht the Realm by Act of Parliament and coming over with the King's License but without any reverse of the said Act Thomas Earl of Lancaster the King's Uncle with the rest of the Earls Barons and Commons of the Land took up Arms against him And tho' he raised some Forces by the King's Commission yet they fought with him and took him Prisoner and beheaded him near Warwick Some years after which the said Thomas Earl of Lancaster with Humphrey de Bohun Earl of Hereford together with divers other Earls and Barons took Arms and spoiling the Lands of the two Spencers Father and Son came up to London where the King had called a Parliament in which the King was forced to banish the said Spencers out of the Kingdom tho' they quickly returned again against whom when the said Earls above mentioned and divers other Barons and Knights again took Arms but being fail'd by some of their Consederates were over-power'd by the King's Party and the Earl being taken Prisoner was attainted and beheaded at Portfract yet was the this Judgment against the Earl and those of his Party afterwards reversed in Parliament in 1 mo Edward the Third and their Heirs restored in blood as also to the Lands of their Fathers as besides the Act it still to be seen upon the Rolls appears more plainly by a Writ of this King 's reciting that whereas at a Parliament at Westminster among other things it was agreed by the King the Prelates Earls Barons and Commons of the Kingdom that all those who were in the Quarrel with Thomas E. of Lancaster against the Spencers should have their Lands and Goods restored because the said Quarrel was found and adjudged by the King and the whole Parliament to be good and just and that the Judgments given against them were null and void and therefore commands restitution of the Lands and Tenements now in the Crown to the Executors of the said Earl and the like Writs are found for the other Lords and Gentlemen that had been of his Party And further that not only this Resistance made by this Earl and the rest of his followers but also that which this King himself made together with Queen Isabel his Mother against the Mis-government of the King his Father through the evil Counsel of the two Spencers appears by the Act of Indemnity passed in the first Year of this King in the preamble of which there is recited a short History of the wicked Government and Banishment of the Spencers Father and Son and also how Thomas late Earl of Lancaster was by their procurement pursued taken executed disinherited and how the said Spencers and Robert Baldock and Edmund Earl of Arundel by the Royal Power they had usurped had caused the King that now is and the Queen his Mother to be utterly forsaken of the King
his Father and to be Exiled from the Realm of England and that therefore the King that now is and the Queen his Mother being in so great Jeopardy in a strange Countrey and seeing the destructions and disinherisons which were notoriously done in England upon holy Church the Prelates Earls Barons and the Commonalty of the same by the said Spencers Robert Baldock and Edmund Earl of Arundel by the Encroachment of Royal Power to themselves and seeing they might not remedy the same unless they came into England with an Army of Men of War and have by the Grace of God with such puissance and the help of the great Men and Commons of the Realm vanquished and destroyed the said Spencers c. therefore our Soveraign Lord the King by the Common Council of the Prelates Earls Barons and other great Men and of the Commons of the Realm have provided and ordained c. as follows That no great Man nor other of what Estate Dignity or Condition soever he be that came in with the said King that now is and with the Queen in Aid of them to pursue their said Enemies and in which pursuit the King his Father was taken and put in Ward c. shall be impeached molested or grieved in person or in goods in any of the King's Courts c. for the pursuit and taking in hold the body of the said King Edward nor for the pursuit of any other persons not taking their goods nor for the death of any Man nor any other things perpetrated or committed in the said pursuit from the day of the King and Queens Arrival until the day of the Coronation of the said King This Act of Indemnity is so full a Justification of the necessity and lawfulness of the Resistance that was then made against King Edward the Second and his wicked Councellors the Spencers that it needs no Comment And tho' King Edward the Third took warning by the example of his Father and was too wise then to follow the like Arbitrary Courses yet Richard the Second his Grandson being a wilful hot headed young Prince fell into all the Errours of his great Grand-father and found the like if not greater Resistance from his Nobility and People for when he had highly mis-governed the Realm by the Advice of his favourites Alexander Arch-Bishop of York the Duke of Ireland and others a Parliament being called in the 10th Year of his Reign the Government of the Kingdom was taken out of their hands and committed to the Bishops of Canterbury and Ely with Thomas Duke of Gloucester the King's Uncle Richard Earl of Arundel and Thomas Earl of Warwick and nine or ten other Lords and Bishops but notwithstanding this the King being newly of Age refused to be governed by the said Duke and Earls but was carried about the Kingdom by the said Duke of Ireland and others to try what Forces they could raise and also to hinder the said Duke and Earls from having any Access to him But see what followed these violent and arbitrary courses as it is related by Henry de Knighton who lived and wrote in that very time and is more exact in this King's Reign than any other Historian he there tells us that when Thomas Duke of Gloucester and the other Bishops and Earls now mentioned sound they could not proceed in the Government of the King and Kingdom according to the Ordinance of the preceding Parliament through the hinderance of Mich. de la Poole Robert de Vere Duke of Ireland Nich. Brembar and Robert Tresillian Chief Justice and others who had seduced the King and made him alienate himself from the Council of the said Lords to the great damage of the Kingdom whereupon the said Duke of Gloucester and the Lords aforesaid with a great Guard of Knights Esquires and Archers came up towards London and quartered in the Villages adjacent and then the Arch-Bishop of Canterbury the Lord Lovat the Lord Cobham the Lord Eures with others went to the King in the name of the the Duke and Earls and demanded all the persons above-mentioned to be banished as Seducers and Traitors to the King and all the Lords then swore upon the Cross of the said Arch-Bishop not to desist till they had obtained what they came for the conclusion of this Meeting was that the King not being able to withstand them was forced immediately to call that remarkable Parliament of the 11th Year of his Reign in which Mich. de la Poole and the Duke of Ireland were attainted and Tresillian and divers other Judges sentenced to be hanged at Tyburn upon the Impeachment of the said Duke of Gloucester and the Earl of Arundel for delivering their Opinions contrary to Law and the Articles the King had not long before proposed to them at Nottingham I shall omit the Resistance which Henry Duke of Lancaster made after his Arrival by the Assistance of the Nobility and People of the North of England against the Arbitrary Government of this King being then in Ireland not only because it is notoriously known but because it was carried on farther than perhaps it needed to have been and ended in the Deposition of this King Only in the first Year of Henry the 4th there was the same Act of Indemnity almost word for word passed for all those that had come over with that King and had assisted him against Richard the Second and his evil Councellors as was passed before in primo of Edward the Third I shall not also insist upon the Resistance of Richard Duke of York in the Reign of King Henry the 6th who took up Arms against the Evil Government of the Queen and her Minion the Duke of Suffolk because you may say that this was justifiable by the Duke of York as right Heir of the Crown nor will I instance in the Resistance made by the Two Houses of Parliament during the late Civil Wars in the time of King Charles the First since it is disputed to this day who was in the fault and began this Civil War whether the King or the Parliament Only thus much I cannot omit to take notice of that the King in none of his Declarations ever denied but that the People had a right to Resist him in case he had made War upon them or had introduced Arbitrary Government and expresly owned in his Answer to one of the Parliaments Messages that they had a sufficient power to restrain Tyranny but denied himself to be guilty of it and still asserted that he took up Arms in defence of his just Right and Prerogative to the Command of the Militia of the Kingdom which they went about to take from him by force M. I have with the greater patience hearkened to your History of Resistance in all the Kings Reigns you have mentioned because I cannot desire any better Argument to prove the unlawfulness of such Resistance than those Acts of Pardon and Indemnity You cannot but confess have
no man will say that their Acclamations and crying yea yea will make our Kings Elective any more than it could do it in the Case of K. William who had a Title by Conquest precedent to this prâ—tended Election tho' I grant this custom may have been in use ever fined this Coronation of the Conqueror But that King William claimed indeed by Conquest and by no other Title let us not mind his specious colourable pretences but his actions which are the best Interpreters of the Thoughts of Princes and we shall find that thorough all his Reign he Governed this Kingdom as a Conqueror and this I shall prove by making good the three Instances I have already given of his great alterations of the Property Laws and Civil Liberties of the People of this Nation to begin with the first of these For the proof of which I shall make use of the Authority of Gervace of Tiâ—bury a considerable Officer in the Exchequer in the time of Henry the Second and who received his information from Henry of Bloâ—s Bishop of Winchester and Grand-child to the Conqâ—eror who is most full to that purpose which he thus delivers in the Manuscript Treatise called the black book of the Exchequer which I shall read to you according to the Learned Dr. B's Translation of it After the Conquest of the Kingdom and the just subversion of the Rebels when the King himself and his great men had viewed and surveyed their new acquests there was a strict enquiry made who they were which had fought against the King and secured themselves by Flight from these and the Heirs of such as were slain in the Field all hopes of possessing either Lands or Rents were cut off for they counted it a great favour to have their Lives given them But such as were called and sollicited to fight against King William and did not if by an humble submission they could gain the Favour of their Lords and Masters they then had the liberty of possessing somewhat in their own persons but without any right of leaving it to their Posterity their Children enjoying it only at the Will of their Lords to whom when they became unacceptable they were every way outed of their Estates neither would any restore what they had taken away And when the miserable Natives represented their Grievances publickly to the King informing him how they were spoiled of their Fortunes and that without redress they must be forced to pass into other Countries At length upon consultation it was ordered that what they could obtain of their Lords by way of Desert or Lawful Bargain they should hold by â—unqestionable Right but should not claim any thing from the time the Nation was Conquered under the Title of Succession or Descent upon what great consideration this was done is manifest says Gervacâ— for they being obliged to compliance and obedience to purchase their Lords â—avour therefore whoever of the Conquered Nation Possessed Lands c. obtained them not as if they were their Right by Succession or Inheritance but as a reward of their service or by some intervening agreement This alone were sufficient coming from an Author of such Credit and living so very near the time but besides his I shall give you the Authority of divers other Authors to the same purpose and particularly Ordericus Vitalis whom you but now cited tells us how William the first circumvented the two great Earls of Moreâ—a and that after Edwin was slain and Morcar imprisoned then King William began to shew himself and gave his Assistants the best and most considerable Counties in England and made Rich Collonels and Captains of very mean Normans and that he thus disposed of whole Counties to divers great men appears by Domesday Book wherein it is seen that the whole County of Chester was given by the Conqueror to â—upus a Norman so likewise the greatest part of Shropshire was given to Monâ—gomery And further he took away from the English their Estates and gave them to his Normans and this he did from his first coming in for Fitz-Osbern was made Earl of Arundel and Hereford at his first coming in and was Lord of Bettivil in Normandy and established the Laws of that Town at Hereford Alan Earl of Bâ—itain had all Earl Edwin's Lands given to him at the Seige of York about three years after his arrival to these I may add the 795 Mannors Robert Earl of Morâ—ton in Normandy and Cornwal in England had given to him by K. William so likewise â—lan Earl of Britain and Richmond 442 Mannors and Ieffery Bishop of Constance had 280 Mannâ—rs given him by the Conqueror besides many other Lands of the Saxon Earls Thains c. were all given to the Normans who took their Title from King William's Conquering Sword So that I think it is very evident that this King had distributed most of the Lands of the Nation to his Norman's long before the survey was begun and by that infallible Record it is clear that he gave near all the Lands of the Nation to his followers and very little or none to the English who held that they had hys new Title and new services from the Conqueror or his great Lords or became Tenants to or Drudges upon their own Lands as we heard before from Bracton and Fleta Here is enough to satisfie any unbyassed person that thâ— Conqueror did not lay by his Sword after the Battle of Hastings F. In answer to what you have now said concerning your Conquerors taking away the Lands of a great many of the English Nobility and Gentry it is so apparent in matter of Fact that it were a high piece of impudence to go about to deny it yet will it not therefore follow that what he thus disposed of were almost all the Lands of England as I shall shew you by and by but in the mean time to let you see that I am a fair adversary I will at present suppose that K. William took away all the Lands from the former owners and gave them to his followers who helpt him in his Conquest but these were not only the Normans his Subjects but French Flemmings Anjovins Britains Poictovins and People of other Natioâ—s who made up a great part of his Army and came in with him under great and considerable men their Leaders and whom your Dr. tells us came not out of staâ—k love and kindness without any consideration of sharing with and under him in the Conquest Now I desire to know by what Law or Act of theirs they thus constituted K. William an Absolute Monarch over them and their Descendants For as for the Normans tho' they were it's true his subjects yet they enjoyed divers considerable Rights and Priviledges at home and surely never intended to come over hither to make themselves as great Slaves as the People they had Conquered much less can it be supposed of these of other Nations who were not subjects to Duke William before
tho' they themselves remained free men but your Dr. from whom you borrow this is very much out in his application of those passages he cites for neither of those Authors do affirm this of all owners of Lands whatsoever but only there to give us the Original of Soccage Tennants on the Kings Demeasnes as appears by Bracton's Title to that Chapter from whence the Dr. cites this passage which is de diversis conditionibus personarum tenentium in dominicis Domini Regis and the first words of this chapter make it yet plainer beginning thus in Dominico Domini Regis plura sunt genera hominum sunt enim ibi servi sive Nativi ante Conquestum in Conquestu post Conquestum and under these last ranges the persons you mentioned but Fleta is more exact in his Chapter de Sokemannis where he tells us that these men were Tenants of the Kings Ancient Mannors in Demeasne quia hujusmodi cultores Regis dignoscuntur provisa fuit quies nâ— sectas facerent ad Comitatum vel hundredum tamen pro terra quorum congregationem tune socam appellarunt hinc est quod Sokemanni hodie dicuntur esse So that tho' King William might permit his Ancient Tenants to be thus outed of their Estates they held in his own Demeasnes yet does it not therefore follow that he took away the Estates of the Ancient Owners all over England of whatsoever Tenure they were or of whomsoever held But as for your quotation out of Mat. Paris it proves no more than what I readily grant that King William after his return out of Normandy liberally rewarded his Followers with the Estates of the English which might he only of such as fought against him at the Battle of Hastings and as for that little which was left them which he says was put under the Yoak of a perpetual servitude he means no more by this expression than that new Tenure of Knights service which King William imposed upon them as this Author in the very next leaf speaking of the Lands of the Bishopricks and Abbies which were held before free from all secular servitude sub servitute statuit Militari and therefore you seem to contradict your self when contrary to your own Author Sir William Dugdale you deny the truth of any part of the Story because that in Doomesday book the name of Edwin of Sharnborn is not to be found and that William de Albeni is not named amongst the owners of that Mannor which is not material since this William might obtain a share therein after this Survey was made and as for Sharnborn himself his not being there mentioned is no argument that he had no Lands within that Mannor or the other that is mentioned in that Narrative since oftentimes the chief Lords of the Fee are only mentioned in Doomesday book tho' all the Proprietors under them are not particularly named but it is in vain to discourse any longer with you upon the Subject of your Conquerors taking away the Lands of English owners I have given you my opinion and the reasons against it and if you are not of my mind I cannot help it therefore pray go on to your next head and shew me by sufficient Authorities that King William as a Conqueror altered all the Laws and Customs of this Kingdom M. I will not undertake to prove that he altered all the Laws of England and brought in quite new ones yet that he did so in great part and that by his sole Authority I think I can prove by sufficient Testimonies and therefore I shall begin with that of Eadmer a Monk of Canterbury a companion of Archbishop Lanfranc's who tells us in his History that William designing to establish in England those Usages and Laws which his Ancestors and he observed in Normandy made such persons Bishops Abbots and other Principal men through the whole Nation who could not be thought so unworthy as to be guilty of any reluctancy and disobedience to them knowing by whom and to what they were raised all Divine and Humane things he ordered at his pleasure And after the Historian hath recounted in what things he disallowed the Authority of the Pope and Archbishop he concludes thus But what he did in secular matters I forbear to write because it is not my purpose and because also any one may from what hath been delivered guess what he did in seculars From which I think nothing is plainer than that K. William did not only design to alter many things in the Laws and Customs of England but did also actually do it since to that end he made the Bishops Abbots and other Principal men who were to be Judges in all Courts such as he could wholly confide in now that K. William govern'd the Nation as Conqueror and did so live and repute himself so to be and as such brought in and imposed new Laws upon the People of this Nation is as clear as I shall prove from these particulars first The Justiciaries or cheif Justices the Chancellors the Lawyers the Ministerial Officers and under Judges Earls Sheriffs Bailiffs Hundre duties were all Normans from his first coming until above a hundred years after as I can make it out by particular instances and undeniable Reasons were not the Catalogues too long to be here inserted If therefore the Justiciaries Chancellors Earls Sheriffs Lords of Mannors such as heard Causes and gave Judgment were Normans if the Lawyers and Pleaders were also Normans the Pleadings and Judgments in their several Courts musts of necessity have been in that Language and the Law also I mean the Norman Law otherwise they had said and done they knew not what and Judged they knew not how especially when the controversies were to be determined by Military Men as Earls Sheriffs Lords of Mannors c. that understood not the English Tongue or Law or when the cheif Justiciary himself was a Military Man as it often happen'd and understood only the Norman Language and 't is hardly to be believed these Men would give themselves the trouble of learning and understanding the English Law and Language Secondly Tho' we have many Laws and Customs from the Northern People and North parts of Germany from whence both Saxons and Normans came yet after the Conquest the Bulk and Main of our Laws were brought hither from Normandy by the Conqueror from whence we received the Tenures and the manner of holding our Estates in every respect from whence also have we received the Customs incident to those Estates And likewise the Quality of them being most of them feudal and enjoyed under several Military Conditions and services so that of necessary consequence from thence we must receive the Laws also by which these Tenures and the Customs incident to them were regulated and by which every mans right in such Estates was secured according to the Nature of them from Normandy and brought in by the Conqueror we received most if not all
things being considered it is no wonder if the Judges and Clerks of Parliament who were in those days entrusted with the drawing up all Acts of Parliament being greater Masters of the French than Latin Tongues chose rather to draw them up in the former and thus it continued until the Reign of Henry the seventh when our Statutes began first to be drawn up and enrolled in English M I confess you have given me a greater light in this matter than I had before yet I suppose you cannot deny that the Tenure of Knights Service with those clogs that belong to it of Wardship Marriage and Relief were all derived from the Normans as appears by the grand customer of Normandy which I have already menâ—ioned so that tho' it be true that all these are now taken away by a late Statute of K. Charles the second yet since this Tenure and those services are not found among the Saxon Laws there cannot be a greater proof of the ancient power of the Conqueror or of the servitude imposed upon the Nation by him and therefore I look upon it as a very imprudent part of the late K. Charles to part with so great a tye which his Father and all his Predecessors had over the Persons and Estates of all the Nobility and Gentry of the Kingdom F. I shall not take upon me to decide whether it were Politickly done or not of K. Charles the second to part with the Wardship and Services of his Tenants by Knights Service but this much is certain that considering the abuses and corruptions that had crept into that Tenure by degrees since the first institution both by the unfit Marriages of the Heirs as also by the waste that was often times commited on the Wards Estate during his Minority it was certainly a very great grievance and burthen to the subject and considering how many of those Wardships were begged by hungry Courtiers they were of no considerable profit to the Crown and tho' I grant they were a very great tye or rather clog upon the Estates of the Nobility and Gentry of this Kingdom yet it did not thereby produce any such love or obedience as would retain the Tenents better in their duty before than since they were granted away for the forfeitures for Treason and Felony and also Fines for Alienations and are reserved to the Grown now as they were before and as for any love or respect which was anciently paid by the Heir how could there be any such thing since the King granted away the custody of the Heir and his Lands to persons who for the most part made a meer prey of them so that they were often Married against their consents and their Estates were delivered to them wasted and spoiled besides also what was exacted from them for reliefs and Ouster lismaines we need not wonder if it were rather a cause of secret discontent and hatred of the Kings Prerogative than otherwise and therefore I cannot think it was not so unpolitickly done by the King to render himself gracious and acceptable to his People upon his return to grant their request and pass that Act for taking away Wards and Liveries and to accept of a Revenue by excise of treble the value in stead of it But to come to the Original of Knights Service it self I do not think it was derived from the Normans since we are certain there were Thane Lands in England which were held of the King and that by Knights Service before King William's coming over and there were also middle Thanes who held of those Lords above them by the like Service insomuch that in the Laws of K. Knutâ— there is one concerning the Heriots which an Earl the Kings Thane as well as inferior Thanes were to pay not only to the King but to other inferiour Lords which are almost the same as were afterwards reserved by the Laws of K. Edward the Confessor confirmed by K. William as you will find them in Ingulph only there is no Gold reserved but only Horses and Arms whereas by the Law of K. Knute each E. was to pay two hundred Manenses of Gold each Kings Thane fifty and each inferiour Thane two pounds only note that he who is called E. in K. Knutes Laws is called a Count in these the Thane a Baron and the inferior Thane a Vauasor and that which is there called a 〈◊〉 is here termed a Relief And that this Tenure by Knights Service which is now called Escuage or Servitium Scuti was of ancient time named expeditio hominum cum scutis and was in use before the coming in of the Danes is also as certain for Sir E. Coke in his fourth Inst. tells us that we may in the Charter of K. Kenulph who Anno Domini 821. granted to the Abbot of Abbindon many Mannors and Lands and reserved quod expeditionem duodecim virorum cum tantis scutis exerceant antiqâ—os pontes arces renovent and also he mentions a like Charter of K. Ethelred to a Knight called Athelâ—eâ— Anno Domini 995 so that you see not only Spiritual Persons and great Thanes or Barons but also Knights held Lands by the service of so many men before your Conqueror and your Dr. also himself allows it for in his answer to Mr. P. in all ancient Charters in the Saxon times he translates the word fidelâ—s by Tenants in Capite or Military Service M. I will not deny that Military Fees were in use before the Conquest and also that the feudal Law did obtain here in many things and therefore I am so far of the Doctors opinion who in his Gossary Tit. Feudal Laws tells us The Feudal Law obtained to most Nations of Europe and in Normandy was in its full Vigor at the time of the coming over of the Conqueror but afterwards grew more mild and qualified as also the Tenure it self a perfect description of which with all its incidents of Homage Relief Ward Marriage Escuage Ayds c. are to be found in the Grand Customer Cap. 29.33 34 35. and although there were Military Fiefs or Fees here in the Saxon times yet not in such manner as after the Conquest established here by William the Conqueror and according to the usage in Normandy when as it appears by Doomesday-book in every County he divided most if not all the Land of England amongst his Normans and Followers Now that this custom of Wardships is wholly derived from the Norman Conquest you shall find in Sir E. Cookes fourth Institutes in the same Chapter you last cited as you may here read You have heard before de regali servitio before the Conquest but that regalâ— servicium which was Knights service drew unto it relief but neither Wardship of the Body or of the Land as hath been said it is true that the Conqueror in respect of that Royal service as a badge of the Conquest took the Wardship of the Land and the Marriage of the
each mans pepzylo or price of his head as you will find them set by the Laws of K. Athâ—lstan I shall not insist much upon divers lesser things which K. William as a Conqueror imposed upon the People of England as disarming them of all offensive Weapons forbidding them to Hunt or Kill any Deer in his Chases or Forrests under the penalties of loss of Eyes and Members as also keeping up and reinforcing the Ancient Laws of Decenaries or Tythings whereby every Ten Families were bound with their tenth man or tything man body for body of each others good abearance as also that Law forbidding all sitting up late at Night or Assemblies after eight of the clock but that every one should go to Bed and put out both Fire and Candle at the ringing of the Coverteâ— Bell these things I think are very sufficient to prove that K. William as a Conqueror did very much abridge and in some things wholly take away the Ancient Priviledges and Liberties of the Lâ—giâ—sh Nobility Clergy and Commons and did also make many and great alterations not only in the forms of Pleadings but also in the very 〈◊〉 of our Laws both Criminal and Civil and if he did not make more â—â—â—erations of thâ— kind it was wholly owing to his free Will and Pleasure since aâ— Eâ—dmerus tells us he ordered all Divine and Secular things acccording to his pleasure F. That I may the better answer what you have said I shall partly grant and partly deny the matters of Fact you have alledged and also further prove that if they had been all as you have laid them yet would they not prove your conclusion that K. William by his own Arbitrary and Tyrannical Actions could create any Right by Conquest either to him or to his Successors And therefore to begin with your first head viz. the Priviledges of the English Nobility as to Offices and Dignities tho' I grant it was true as the Authors you have cited relate that sâ—arce any Englishman was when they Writ either a Bishop Earl or Abbot yet this is to be understood only of the latter end and not the beginning of his Reigns for as to the Bishops and Abbots I do not read of any more than Stigand Archbishop of Canterbury and Egelric Bishop of Durham who being deprived of their Bishopricks had Successors put in their rooms in their life times and yet in the place of this last not any Norman but one Walcher an English man was named by the K. to succeed and as for the Earls of all those who had been against him and opposed his coming in there was not one but he received them into savour and continued in his Dignity and Estate as in particular the Earls Eadwin and Morchar Brothers together with Waltheof and Siward and Edgar Aâ—â—eling whom they had named K. of England all who kept their Earldoms and Estates till terrified by the Kings severe and Tyrannical proceedings the three first of these â—led away as you have already shewn tho' I confess Prince Edgar had for two or three years before this fled into Scotland but yet was afterwards restored to the Kings Favour and his Estate nor do I find any considerable alteration in the Kings manner of disposing of his Honours or Preferments either Ecclesiastical or Civil till Earl Waltheo being convicted of being in the Plot with Ralph de Waher Earl of Norfolk and other Lords as well English as Normans to expel K. William and from that time being the eighth year of his Reign I grant he changed his whole course of Government and put no more Englishmen into any places of honour or profit tho' W. Malmesbury endeavours to excuse the Kings severity in these words Inde prâ—positum regis fortassis meritò excusatur siâ—aliquando durior in Anglos â—uâ—rit quod penâ— nullum eorum fidelem invenerit tho' with this Authors good leave the K. had been the cause of this conspiracy by his own Tyranny and breach of Oaths as I shall shew you by and by So that either this K. was moved by just provocations thus to debar all Englishmen from being preferred to Dignities or Offices or he was not if the former and that he had just cause so to do it was no more than what any other Foreign Prince who had no Hereditary Right to the Crown would have done in the like case But if the latter it was not only contrary to Justice but also to his own Coronation Oath one clause of which as Malmesbury shews us in his de Gestis Pontificum was quod se modeste erga subditos ageret aequo jure Anglos Francos tractaret so that this Kings Arbitrary and violent proceedings after he had â—or some time governed as a lawful King tho' they might prove him a Tyrant yet they could by no means make him a Conqueror And as for the latter part of your Argument whereby you would prove that in his Reign there were no Englishmen in the great Councils of the Kingdom that can only be understood in the strictest sense of the times after the great Conspiracy I have now mentioned for before it is very evident that there were many Bishops Earls and Barons still left who must have been members of the great Council Nor can you prove that the Law I have mentioned against the King's taking the Taillage or Taxes without their consent was made after that time but let it be made when it will you shall never pâ—rsuade me it was enacted without any Englishmen's being present till yâ—u can prove to me that there were no English Tenants in Câ—pite towards the end of 〈◊〉 Reign and that there were then no Knights Citizens or Burgesses that represented the Commons in the great Council and can give a better answer to those Arguments I have given you to prove they were there especially that remarkable clause in the conclusion of this Kings Charter to the Abby of Westminster which mentions divers Principal Persons both of the Clergy and Laity to have been summoned to that famous Synod or great Council when this Charter was granted I come now to your next head whereby you would prove this King's Abridgment of English Priviledges as to their Estates and Properties to begin with that of the Legislative Power which as you say was then wholly in the King admit it were so it will not prove that for which you urge it viz. that it is a sign of the Kings Absolute Conquest over the English for if the great Council of the Kingdom had then lost its ancient right it was only his Normans and Frenchmen as well as the English that he bereaved of their Ancient Priviledge of giving their consent to Laws since it is very certain that neither the K. of France nor the D. of Normandy could at that time make any Laws without the consent of their Estates But the truth is that your Conqueror could not do it neither for if the Normans
if the King had seised all the English Estates without any Legal Tryal as for example in Essex in Barnstable hundred In Burâ de istis Hidis est una de hominibus soris sactis erga Regem and this was the way of expression in the Active Voice we find in Noâ—folk Earl Ralf held such Lands Quando se foris fecit But more particularly in Cambridgeshire in Wardune Hardwin holds of Richard's Ancestors but Ralf Waders held it Die quo deliquiâ— contra Regem all which would never have been inserted could this King have taken away mens Lives and Estates without any colour of Law or Justice and therefore you may find in all the Historians of his time that after the great Plot wherein so many Norman as well as English Lords were concerned and for which Roger Earl of Hereford and Ralph Earl of Norfolk and Suffolk both Normans had conspired with Earl Waltheof and other English Lords to call in the Danes and dispossess the King yet they were convicted by a legal Tryal of their Peers and suffered death for it So that in this he distributed equal Justice to the Normans as well as the English who thereupon forfeited all their Estates and yet notwithstanding this there were some Native Englishmen still lest who tho' they had been in Arms against the King at the beginning of his Reign yet were nevertheless reconciled to him and restored to their Estates as for example Ederic Sirnamed the Forester who as Florence of Worcester tells us was reconciled to King William and accompanied him into Scotland soon after as also Herward the Son of Leofric Lord of Brunne who having lost his Estate and being Out-lawed as Ingulph tells us Took Arms against the King William and joyned himself with those in the Isle of Ely and yet after divers great Battels as well against the King as his Commanders yet at length having obtained his Inheritance by the Kings allowance he finished his days in Peace and now here were two considerable English Barons which still enjoyed their Estates notwithstanding all King William's severity and yet I do believe it will puzzle your Dr. to shew me their names in Doomesday-book so that that Book alone is not it seems a certain Rule to discover what Englishmen were then Barons or Tenants in Capite But admit all this to be true as you your self have represented it can this Kings perjury to his Subjects and breach of all Laws after so many solemn Oaths give him a right as a Conqueror over the Lives and Estates of his English Subjects and that after he had solemnly renounced his Right of Conquest by so many solemn transactions with his Subjects with whom you suppose he still made War after he had for so many years laid down his arms at this rate I cannot tell when subjects may be safe for let Kings that come to a Crown by a mixt title partly by force and partly by right take never so many Oaths to maintain the ancient constitution of the Government together with the Rights and Priviledges of the People 't is but his saying afterwards when he hath sufficient power that they were forced upon him and that he never designed to keep them and his business is done and he may then take away his Subjects Lives and Estates by this pretended right of Conquest whenever he pleases nor does this only extend to himself alone but to all his Heirs and Successors who claim under that Title let them take never so many Coronation Oaths or make never so many Declarations to the contrary since they all claim under the same divine Title of the Sword that is as you will have it receive their Crowns immediately from God and then can never forfeit them let them tyrannise to the utmost degree imaginable for you have provided them with two easie and pleasant excuses that all promises are either broken or kept and Stultám Sacramentum est Frangendum and I cannot but smile to see what an excellent excuse you have found out for all the breach of Oaths and Covenants of those engaged in the late Civil Wars since they might very well plead they had so many Royal Presidents for so doing as sufficiently authorised it unless you will have that to be Perjury in Subjects which must be a Divine Prerogative in Kings And therefore let me tell you I am very glad for your own sake that there is no body here but you and I since all the company would have cryed out and said that this way of arguing were to make open War not only upon all the Laws and Priviledges of this Nation but also to put the King and People in a state of War against each other for if he once declares by such Overt Acts as these of King William's that he will not be tyed neither by his Coronation Oath nor by any Laws he has made I doubt their Oaths of Allegiance will not long bind them neither and they will be very ready to reply that whatever power began and is continued by force and violence may also be cast off by the like means and when a King and his People are brought once into this state it is easie to foretell what will be the event either he must turn out or they must be all Slaves and I wish it was not owing to such Jesuitical flattering Councils as this that the King first lost the Affections of his People and then his Crown since Father Peters himself with the rest of the Jesuits and Arbitrary Ministers of the Cabal could never have instilled worse Principles than these therefore I pray for the future either get better reasons or keep those to your self But God be thanked both King Iames and K. Charles the First had much better thoughts of the Laws and Liberties of the Nation since the former hath solemnly declared in a Preamble to the second Act of Parliament in the first year of his Reign That not only the Royal Prerogative but the Peoples security of their Lands Livings and Priviledges were secured and maintained by the antient fundamental Laws Priviledges and Customs of this Realm and that by the abolishing or altering of them it was impossible but that present confusion will fall upon the whole state and frame of this Kingdom And his Son was of the same opinion in his first declaration at the beginning of the late Wars The Law says he is the Inheritance of every Subject and the only security he can have for his Life or Estate and the which being neglected or disesteemed under what specious shew soever a great measure of infelicity if not irreparable confusion must without doubt fall upon them M. If I had no love at all for the Government and Liberties of my Country as I thank God I have a great affection for both yet should I not have the Impudence to contradict the sense of two Kings and a Parliament neither have I so
together with the Bishops of Winchester and Ely with divers other Earls Bishops and Lords then in Town had sent an Address to the Prince immediately upon the Kings departure and sent three Lords and one Bishop with it desiring his Highness to come speedily to London and to take the Government upon him and having before declar'd that they would with their utmost endeavours Assist his Highness for the obtaining of a Free Parliament so that the Prince had no reason upon the Kings return to Surrender that Power which the Nation as far as it was able to do without a Parliament had put into his Hands and that to a King whom he had very little reason to believe would use it any better than he had done before But I see you wilfully decline entring into the Merits of the Cause and arguing the main point in the Controversy viz. whether the King was in a State of War or Peace with the Prince upon his return for if he were still in a State of War the Prince might certainly very well justifie his clapping up the Earl of Feversham his Late Majesties General for offering to come within the Limits of the Princes Quarters without his leave especially since he was still answerable for doing his endeavour to Disband an Army a great part of which consisted of Papists and Forreigners with their Arms in their hands whereby they might have robb'd and spoyl'd the Countries or at least have kept those Arms to renew the War again with the first Opportunity so that certainly it could not be so slight a thing as a bare Invitation to St. Iames's whither the Prince could have gone without his leave being now Master of the City which could so far efâ—ace all the Princes just Resentments and make him so far confide in the Kings Word as to come to London whilst he remained there with his Guards and all those Papists and Tories in and about London ready to take his part and Rallie again into a new Army upon the first Signal But as for any Proposals of Peace or Accommodation which you say the Lord Feversham brought with him I neither know nor have heard of any such thing 't is true the King says in the said Paper he left behind him that he had writ to the Prince of Orange by the Lord Feversham and also mentions some Instructions he had given him but what they were he does not tell us but sure they were not Propositions of Peace since it is to be supposed that the King would not have sent any thing of that Consequence without first acquainting the Privy Council with it before it was sent But since we hear of nothing concerning them we may very well suppose there was no such thing or if there were his Highness was the fittest judge whether they were reasonable or not and if the King had any desire to propose any Just or Reasonable Terms whereupon he might have hoped to have been restored again to his Royal Dignity he had a very â—air Opportunity for it when a great Council of the Nobility were met at St. Iames's in Order to Sign an Association to stand by the Prince in the Calling of a Free Parliament for the King might then if he had pleased have made his Proposals by such of the Lords and Bishops as he could most confide in and have Conjured all the Peers there Assembled to have interceeded with the Prince of Orange to renew their Treaty with the King which had been before unhappily broken off and then if either the Peers had refused to do this or the Prince had refused to hear them the King might then I grant have had sufficient reason to declare to all the World that he was not fairly dealt with but for him again to go away only upon pretence that his Person was under restraint when really it was not plainly shew'd that he had no real design of making an amicable end of those differences or really desir'd to be restored to his Throne by the general consent of the Nation but either hoped for it from those Civil Dissentions he expected we should fall into upon his departure or else to the Arms of France and this being the Case I think nothing is plainer than that the King both by his first and second departure hath obstinately refused all those means whereby the Nation might have been setled with a due consideration of his Person and Authority whilst he lived and of the Prince when his Legitimacy shall be sufficiently proved and made out before a Free Parliament So that since I have already proved that the King had before the Princes Arrival committed so many Violations upon the whole Constitution of the Government and that these Violations if wilfully and obstinately persisted in do at last produce an absolute loss and forfeiture of the Crown it self I think the late King has done all that could be required to make it so But I have forgot to answer one Objection you made viz. that the Peers and Bishops when they invited the King to return to White-Hall had no Notion of this forfeiture nor the people of London who you say received him with great Joy and Acclamations and that therefore it is wholly a new invention To this I Answer that if the Lords you mention did send this message to the King it might be because they were surprised with his unexpected return and had not well considered all the Circumstances of the Case and thereby did more then they could well justifie having before declaed they would stand by his Highness in procuring a Free Parliament which must certainly be without the King since he was then gone away and they had also invited him to come to London as well as the City and how that could consist with their inviting the King thither without the Princes consent I do not well understand but it seems they quickly altered their Sentiments as appears by their presently after Subscribing a paper in the nature of an Association to stand by the Prince without taking any notice at all of the King and the very day of the Kings departure they met to consider upon the Princes Speech he had a day or two before made to them desiring them to advise on the best means how to pursue the ends of his Declaration in Calling a Free Parliament and within two days after they presented the Prince with their Advice to call a Convention on the 22th of Ianuary which was also the next day agreed to by one hundred and sixty Persons who had served as Knights Citizens and Burgesses in any of the last Parliaments in the time of King Charles the Second without taking any notice at all of the King for though it is true he was then gone away when the Commons and City two or three days after made their Addresses to the Prince Yet when the Peers met both the first and second time on the 21st and 22d of December he was
Wales though it is true he is carried out of England ought to have been immediately declar'd King as was done in the Case of Edward the 3 d. who was so declar'd upon the Deposition or Resignation of King Edward the 2 d. F. Though I grant ever since the Crown has been claim'd by Descent the Law has gone as you have cited it and that Finches Law lays it down for a Maxim I shall not deny but that from the beginning or original of Kingly Government whether we look before or after you Conquest it will appear that the Throne was often vacant till such time as the Common Council of the Kingdom had agreed who should fill it and to shew you I do not speak without good Authority pray tell me if this Maxim had then obtain'd why after the Death of William the First his Eldest Son Robert Duke of Normandy did not immediately take upon him the Title of King of England or at least had done it after the Death of William Rufus who you know was placed on the Throne â—not by Right of Inheritance but by his Fathers Testament confirm'd and approv'd of according to the Antient English-Saxon Custom of Succession by the common Consent of the great Council of the whole Kingdom and yet notwithstanding after the Death of this William Henry his younger Brother succeeded him by the free Election and Consent of the same Common Council and yet that Duke Robert should never in all his Life-time take upon him the Title of King Pray tell me likewise if this Maxim had been then known why Maud the Empress immediately upon the Death of her Father King Henry the First did not take nor yet her Husband the Duke of Anjou in her Right the Title of King and Queen of England though she had had Homage paid her and Fealty sworn to her in the Life-time of her Father as the immediate Successor to the Crown and yet notwithstanding the utmost Title she could assume was that of Domina Anglorum Lady or Mistress not Queen of the English whilst Stephen who had no other Title but the Election of the great Council of the Nation held both the Crown and Title of King as long as he lived As also why Arthur Duke of Britain who according to the now received Rules of Succession was the next Heir to the Crown upon the Death of King Richard the First never took upon him the Title of King unless it were that he very well knew that his Uncle King Iohn had been placed in the Throne by the Common Consent and Election of the great Council of the Kingdom So likewise after the Death of King Iohn why Henry his Son was not immediately proclaim'd King till such time as the great Council of the Clergy Nobility and People had met and agreed to send back Prince Lewis whom they had chosen for their King though not being Crowned he never took upon himself that Title and so chose Henry the Third then an Infant for their King Lastly Why all these Princes viz. Henry the Second Richard the First and Henry the Third who according to your notions were undoubted Heirs of the Crown never took upon them the Title of Kings of England nor are so stiled by any of our Historians till after their Elections and Coronations if it had not been then received for Law that it was the Election of the People and Coronation subsequent thereunto that made them Kings and till this was performed though they might look upon themselves as never so lawful Successors the Throne was notwithstanding esteem'd in Law vacant Therefore as for your Iâ—stance of King Edward the Third 's immediately succeeding upon the Resignation of his Father if you please better to consider of it that makes against you for it is plain from Th. Walsingham and H. de Knyghton that Prince Edward succeeded not to the Crown by Succession but the Election of the great Council or Parliament the words are express Huic Electioni universus Populus consensit and this was also owned by Edward the Second himself who when the Commissioners of all the Estates of Parliament came in all their Names to renounce their Homage to him yet in the midst of all his sorrow he gave them thanks quod Filium suum Edwardum post se Regnaturum eligissent which plainly shews that the Parliament had then such a Notion of a Forfeiture proceeding from his Deposition for violating the Fundamental Laws of the Kingdom that the Eldest Son and Successor could pretend no other Right to it even in the Judgment of the late King himself but what proceeded from their Election M. I cannot deny but what you have now urged from matter of fact may appear very plausible to your self and those of your Notions yet if it be looked closer into I doubt not but the known Laws then receiv'd and the Notions the people had then of a Lineal Succession by Right Inheriâ—ance will prove directly contrary to the matter of fact For you know very well à facto ad Ius non valte consequentia but that all the Princes you mention'd except the three last were really Usurpers and not Lawful Kings I shall let you see by evident Authorities from the Historians of those Times For in the first place though I grant William Rufus succeeded to the Crown by his Fathers last Will which was certainly unlawful as being contrary to the receiv'd Laws of Succession in Normandy as well as England yet was it not by Election of the people as you suppose but by the kindness of Arch-Bishop Lanfranc his God-father and the favour of the greater part of the Norman Barons who came over with his Father as well as out of hatred to Duke Robert his Elder Brother that he was thus made King so that William Rufus claimed as a Testamentary Heir and by reason of that Claim was advanced to the Throne by the Assistance of Lanfranc's and the Bishop's Faction who then swayed the people but yet never owned any Election from them so that if you rightly consider this Story you cannot call it an Election but a Designation or Nomination by his Father William the Conqueror and consented to by the major part of the Bishops and Lords of the Kingdom but not by their Election or Decree as a Common Council as you suppose But that for all this Duke Robert his Brother being assisted by Odo Bishop of Bayenx and Earl of Kent his Uncle as also divers other Norman Lords who being satisfied of his Right raised a War in England against William and great mischief was done on both sides till at last a Peace was made between them upon these conditions among others as Matthew Westminster relates it that because of the manifest Right Duke Robert had to the Crown he should have a Yearly Pension of three thousand Marks out of the Revenue of England and he of the two Brothers that surviv'd the other if he died
to have been upon the Death of King Henry the II. Now your only argument to prove this is that King Richard tho' his Eldest Son alive was only call'd Duke of Normandy and never King of England till after his Coronation but whoever will but consider the circumstances of this matter will find that he was indeed own'd for King of England before his pretended Election or Coronation for before his coming into England to be Crown'd Rocer Hoveden tells us That every Freeman of the whole Kingdom by the Command of his Mother Queen Elianor swore quod fideni portabit Regi Angliae Richardo Regis Hen. filio which plainly shews that he was then by common intendment looked upon as King before his Coronation and though I confess that this very Author also relates that all the Estates of the Kingdom being assembl'd at London by whose Council and Assent the said Duke was Consecrated and Crown'd King of England and though Ralph de Diceto then Dean of St. Paul's who in the Vacancy of that Church then supplied the Office of the Bishop at King Richard's Coronation hath this passage Comes itaque Pictavorum Richardus hereditario jure praemovendus in Regem post tam cleri quam populi solemnem debitam electionem involutas est triplici Sacramento c. Now what can this solemn and due election here signifie Or what can it mean farther than that Richard being King by Hereditary Right was so owned and recognized by the Clergy and Laity F. I desire I may reply to this before you proceed farther I confess what you say about the Empress Maud's surrender of her Right to her Son Duke Henry would be considerable if you had any Authorities from our Antient Historians to support it but since you have not I look upon it as no better than a meer surmise of those of your opinion that the Crown was then enjoy'd by an Hereditary Right without any consent or election of the people and so likewise is your other fancy that because Women were then looked upon as uncapable to Govern therefore the Bishops and great men of the Kingdom suppos'd they had sufficiently perform'd their Oath of Allegiance to her by acknowledging her Son Duke Henry for the right Heir of the Crown now if this had been so pray tell me to what purpose King Henry I. Father to the Empress should have made all the Estates of England swear fealty to his Daughter if a Woman had been then lookt upon as uncapable to Govern or to what purpose should the Clergy in the Council at Winchester chuse this Empress as the King's Daughter Lady both of England and Normandy as William of Malmesbury tells us expresly that they did and that he was present at it or how could the great Council of the Kingdom believe that they had sufficiently satisfied their Oath to the Daughter in conferring the Allegiance that was due to her upon her Son I am sure no Heiress of the Crown would look upon that as a good performance of their Oath at this day when you can answer me these queries I shall be of your opinion in this point but till then I beg your pardon But as to what you say against the Vacancy of the Throne upon the Death of King Henry the II. till King Richard was Elected and Crown'd I desire no better Authority to the contrary than those very Authors you have now cited for your opinion for first Hoveden in the very place you have quoted him says That the Duke was to be Crown'd King by the Council and Asâ—â—nt of all the Parties there present now if I understand any thing of Grammar or Sence he was not King before and therefore needed their Assent to make him so likewise in the next quotation from Ralph De Diceto the Duke is said Hereditario jure promovendus in Regem which words being in the Future Tense shew he was not then but was to be promoted to that dignity now if his Hereditary Right alone could have done it then to what purpose are all these words aforegoing so that though this Right gave him the fair pretence to succeed to the Crown yet it is plain from both the Authors you have quoted that he was not so till after the due Consent and Election of the Clergy and People so that after all your questions what can this solemn and due Election signifie or what can it mean farther than that Richard being King by an Hereditary Right was so own'd and recognized by the Clergy and Laity will receive a very easie answer from what has been already said till you can shew me out of any Dictionary that Consilium and Assensus which are the words of Hoveden and the words Solemnis debita electio ever signified an owning or recognition of an Hereditary Right I confess the only colour you have for your interpretation of those words in Hoveden which you have now cited of Queen Elianors making every Freeman of the Kingdom swear Fealty to Richard King of England as to their Liege Lord from whence you would infer that by common intendment of Law he was looked upon King of England before he was Crown'd and consequently there could be no Vacancy of the Throne now admit that he was commonly call'd King before he was Crown'd or that the Queen his Mother would make the People swear to him as such yet that could not make him so since the same Historians also tell us that Hubert Archbishop of Canterbury and William Earl Mareschal made the people of England take a like Oath to Earl Iohn as their Lord not King immediately after the death of King Richard his Brother and yet I suppose you will not affirm that their swearing Fealty to him as their Superiour Lord made him King or gave him a just Title to the Crown and I desire you or any indifferent man to tell me which was Hoveden's opinion whether this swearing Fealty was a sufficient Declaration of his â—eing King or else all those other expressions which signifie the contrary when immediately before his Coronation he only calls it ducem Richarâ—m qui Coronandus erat in Regem which I think is as plain a distinction of his being a Duke before he was Crown'd and a King afterwards as words can make M. I see it is in vain to urge this point any longer and therefore I shall proceed to your next instance of the Vacancy of the Throne after the death of King Richard until King Iohn was placed therein now though it is certain that this Prince was an Usurper upon his Nephew Duke Arthur yet whether he was ever Elected in a Common Council of the Bishops Earls and Barons of the Kingdom is very doubtful But suppose he were it was done wrongfully and to the prejudice of Arthur Duke of Britain the right Heir to the Crown who being young and a stranger it is no wonder if he were put by and his Uncle who
the only Iudges of all Disputes about the Succession of the Crown D. 2. p. 891 to 892. D. 12. p. 893. D. 13. p. 917 to 919 921. Eve W. by being subject to Adam all her Posterity became so likewise D. 1. p. 14. to 25. F Fathers W. by right of generation or of education Lords over their Children in the state of Nature D. 1 p. 13 14. W. Any such power was given by Divine Grant to Adam and in him to all other Fathers Ib. p. 26 30 to 36. W. Fathers of Families have power of life and death over their Children by the Law of Nature Ib. 19. to 26. W. They may sell their Children Ib. 26. to 31. W. They may be resisted by their Children in case of any violent assaults upon their lives Ib. p. 41. W. Perpetual Masters over their Children as long as they live Ib p. 45. to 51. Fideles the signification of the word before the Conquest D. 6. p. 390 391. D. 7. p. 448. to 451. Sir R. Filmers Principles W. they do not rather encourage Tyranny than Fatherly affection in Princes towards their Subjects D. 2. p. 118. W. They do not also favour Vsurpers Ib. 125. to 128. G Common Good of Mankind the main design of all Government D. 1. p. 55. to 61. Civil Government the end of its Institution D. 1. p. 11. 19. 21. W. There had been any necessity of it if Man had never sinned Ib. p. 11. What it is and its Prerogative D. 3. p. 173. W. it can be setled without liberty and property in Estates Ib. 174. Government of Families and Kingdoms its Original and Necessity D. 1. p. 10. to 12. Supream Governours in what cases they cease to be Gods Ordinance D. 1. p. 41. Government among the ancient Germans and Saxons always by Common Councils D. 5. p. 365. to 369. Grands or Grants in Parliaments what those words signifie in ancient Statutes and Records W. The Lords alone or the Commons also D. 6. p. 369. vid. Append. Guards of the King when when first set up D. 9. p. 639. H K. Harold W. William of Normandy had a just cause of making War upon him D. 10 p. 718. What Title he had to the Crown Ib. p. 720. Haereditamentum its derivation Ib. p. 721. Hengist and all the rest of the Kings who founded the Saxon Heptarchy W. so by Election or Conquest D. 5. p. 357. to 362. King Henry the IVth W. his Title to the Crown were by right of blood or Election of the Estates in Parliament D. 12. p. 861. to 863. King Henry the VI. W. his Son were not unjustly disinherited by the Duke of York and himself unjustly deposed by Edward the IVth Ib. p. 863. to 867. King Henry the VIIth W. he had any Title to the Crown by right of Inheritance Ib. p. 868. to 870. King Henry the VIIIth W. the several alterations he made as to the the Succession were legal D. 12. p. 871 872. Homage W. it rendred the Prince or Lord irresistible D. 10. p. 727.728 Homines Liberi its signification in English Histories D. 6. p. 428. to 430. Homilies of our Church the the chief passages therein against all manner of Resistance of Governours considered D. 4. p. 287.288 W. It be Heresie or Schism to deny their Authority in any point there laid down Ib. 289.290 vid. Append. Mr. Hookers Opinion concerning the Original of Civil Government D. 12. p. 129.130 W. The two Houses of Parliament or the whole People of England have any coercive Power ove the King D. 9. p. 634. W. The Two Houses have on the behalf of the whole People renounced all right of self-defence in any case whatsoever Ib. p. 636. to 658. I King James the Firsts Speech in Parliament against Tyranny D. 3. p. 148. The Act of Recognition of K. James's Hereditary Right how far it obliges Posterity D. 12. p. 871 to 874. King James II. W. he violatid the fundamental constitution of the Government before his desertion D. 9. p. 673. to 685. Or W. he had amended all those violations before his departure p. 685. to 689. W. His setting up a standing Army and puting in Popish Officers and Souldiers were an actual making War upon the Nation Ib. p. 683.687 W. He abdicated the Government by his breach of the Original contract or else by his deserting it D. 11. p. 790. to 799. W. He might have been again safely restored to the Government upon reasonable terms Ib. p. 801. to 807. W. He really intended to redress all the violations he had made upon it p. 805. to 807. W. He resumed the Government upon his return to London from Feversham Ib. 802. to 806. Iesus Christ did not alter Civil Government neither by taking away the Prerogative of Princes nor yet by abridging the Civil Liberties of Subjects D. 4. p. 216. to 220. Jews often rebelled and sometimes killed their Kings D. 3. p. 203 to 205. Their resistance of Antiochus considered Ibid. p. 208. to the end Jewish Government before Saul W. Aristocratical or Monarchical D. p. 93. to 101. Judah and Thamar the History considered D. 1. p. 33. Iudges over Israel their Power W. Monarchical D. 2. p. 95 96. W. Some of them were not Iudges of some particular Tribes p. 96 97. Iudgements Divine W. they may be removed by humane means or force D. 4. p. 259 260. K Kings W. to be reputed Fathers of their People as the Heirs or Representatives of those who were once so D. 2. p. 65. W. They derive their Power from God or from the People and Laws D. 11. p. 773. to 780. D. 12. p. 936 to 938. Saxon Kings of England W. absolute or limited Princes D. 5. p. 349. W. They were endued with the sole Legislative Power Ib. p. 338 to 345. Kings of the English Saxons Elected and often deposed by the Great Council Ibid. p. 365. The same done also in other Kingdoms of the Gothic Model Ib. p. 365. Kings of England ever since King William I. W. they derive their Title to the Crown from Conquest or some other Title D. 10. p. 713. Their Concessions to Subjects do no ways derogate from Royal Prerogative D. 10. p. 715.716 Kings of the Roman Catholick Religion W. many of them have not observed Magna Charta and their Coronation Oath D. 12.882.888 King by Sir R. Filmer's Principles above all Laws and alone makes them D. 2. p. 123.124 In what sence he is head of the Politick Body of the Common-wealth D. 11. p. 803. to 805. W. He could have anciently by his Prerogative Taxed all the Tenants in Capite at his discretion D. 7. p. 495. to 499. W. He could call or omit to summon to Parliament what Earls Lords and Tenants he pleased Ibid. p. 505 to 511.523 W. He could also summon those Knights of Shires who served befere without any new Election Ib. 537. W. He could by his Prerogative discharge what Knights of Shires he pleased after they were chosen Ibid.
which all the Lands in England were liable to as well after as before your Conquest Nor will the 58 th Law make more for you for tho it â—â—ly says that all Earls Barons Knights and their Servitors or Esquires and all Freemen of the Kingdom shall always be fitted with Horses and Arms as they â—â—ought to be and which they ought to do according to and by reason of their â—ees and Tenures Now it is plain that this Law cannot extend to the Less 〈◊〉 Capite only since they according to your own sense are comprehended â—â—eder the Word Milites and their Servientes which seems to mean their Feudataâ—y Tenants are as much tyed by this Law to find Horses and Arms as the Tâ—â—ants in capite themselves So that whereas the Law says expresly Uniâ—â—rsi Liberi â—â—mines totius Regni it should have been to make good your sense Universâ— Libeâ—â— Homines qui de Rege Tenant in capite And as for the other Freemen who were â—f lesser Estates than to find Horses they were to be ready with such Arms as beâ—â—ed their Condition as we see it explained by the Assize of Arms of Henry II. which I have now cited so that this Law of King VVilliam is not to be taken in 〈◊〉 sense you put upon it That all the true Freemen of the Kingdom were obliged to be ready with Horses and Arms as if none were Freemen that did not but referring the Words Horses and Arms to those who were to â—ind both and the Word Arms to those Freemen who were only obliged to keep Arms â—it for Footâ—en which sense the words will very well bear tho expressed generally and concisely according to the Mode of those times which abhor'd more Words than â—eeds And if these Laws will not prove what you bring them for much less till the last you have cited For if the Words Omneâ— Liberâ— Homines totius Monarâ—â— in the First Law who were to take an Oath of Fidelity to the King must â—â—tend to all the Freemen of England as certainly it did all Freemen being aâ—â—e obliged to be sworn in the Court Leer and County Court so must this too 〈◊〉 Title being that Omnes subditi all the Subjects should endeavour to mainâ—â—in the King's Rights with all their Power And tho I grant that Subditi here are the same with Liberi Homines in the first Law yet since by that Law all Freemen were to take the Oath of Fidelity to the King these must be also the very same Freemen who were to be sworn Brothers to defend the Kingdom according to their Power and Estates So that all that you have said to prove your Tenants by Knights Service in capite to be the only Freemen that served oâ— Juries c. being built upon a false Interpretation of these Laws of King VVilliam are but the meer Fancies and Imaginations of the Author from whom you borrowed them But taking the Words Liberi Homines in the strictest sense and as they are is the Magna Charta of King Iohn and H. III. Chap. 14. where it is ordained that Liber Homo non amercietur pro parvo delicto nisi secundum modum illius delicti salvâ—â—h contenemento suo mercatar eodem modo salva marchandiza villanus salvâ— VVâ—nagio Upon which Words Sir Edward Coke in his 2 d. Inst. observes that 〈◊〉 Homo is here meant such a one as enjoys a Franc Tenement that is any sort of Freeâ—â— hold But pray go on to prove by some plainer Authorities that the Arch-Bishopâ— Bishops and Abbots c. together with the Earls Barons and other Tenents in capita were the only Council of the Kingdom for the assessing of Taxes and making Laws in the Times immediately succeeding the Reign of King William the First M. I shall perform your Desires and will begin with the Great Council 〈◊〉 Parliament held at Clarendon of which Matt. Paris tells us 〈◊〉 Dom. 1164. 10 th of King H. II. In presentia Regis Henriâ—s 〈…〉 rendon 8 Calend. Febr. c. de mandato ipsius Regis presentibus 〈◊〉 Archiepiscopis Episcopis Abbatibus Prioribus Comitibus 〈◊〉 Proceribus Regni facta est Recognitio and which Quadrilogus and GErvas◠〈◊〉 Canterbury comprise under the General Terms of Brasules Prâ—ceres Regni the Bishops and Great Men of the Kingâ—dom What can be more clear by this Enumeration of the Constitâ—â—ent Parts of this full Parliament as Mr. Sâ—lden and other Authoâ— agree it to be than that the Commons were then none of theâ— and that the Clerus and Populus in Hoveden were only the 〈◊〉 and Lay Nobility So likewise when these Constitutions were again renewed by this King at â—â—thampton the same Author tells us tho by a Mistake it is writtâ—â— Nottingham That Rex Pater ibi celebravit Magnum Consilium de 〈◊〉 t is Regni coram Rege Filio Suo coram Archiepiscopis Episcopâ—â— Comitibus Baronibus Regni sui which Council is more partiâ—â—larly recited by Benedictus Abbas in his Manuscript History 〈◊〉 in the Cottonian Library Anno. 1176. which was the 25 th H. 〈◊〉 Circa Festum Conversionis Sancti Pauli venit Dominus Rex usque â—â—â—thampton Magnum ibi celebravit Concilium de Statutis Regni sui 〈◊〉 Episcopis Comitibus Baronibus Terrae suae coram eis per 〈◊〉 Regis Henrici Filii sui per Concilium Comitum Baronum Nilitâ—â— Hominum suorum hanc subscriptam assisam â—ecit c. And Ralph de Diceto Dean of St. Pauls A. D. 1210. a diligent Searcher into the Histories and Transactions of his own and former times doth yet more fully declare the meaning of Abbot Benedict in the Account he gives of this Great Council thus Rex juxta Consilium Filii sui Regis coram Episcopis Comitibus Baronibus Militibus aliis Hominibus suis in hoc consentientibus c. Hoc autem factum est apud Northamptonam â—ino Kal Febr. From all which Authorities we may collect that this Council at Northampton as well as that at Clarendon was a Great or Common Council of the whole Kingdom to which were summoned of the Laity only the Earls and Barons of his viz. the King's Land to which is also added for the better explaining who were understood under these Titles of Baronum Militum Hominum suorum that is such Tenants in capite as were Knights and such as were his Men or Tenants that is Military Tenants as were not Knighted and who held Lands either of the King or his Son to whom the King might assign divers of these Barons and Tenants in capite to atturn Tenants to him and to maintain his Court and Kingship And the King 's Comites and Barones terrae suae were the Earls and Barons of his Kingdom that held immediately of him or were his immediate Tenants in capite and that Homo suus homines sui doth for
the most part signifie the King's or any other Lord 's immediate Tenants by Knights Service for you may consult Spelman's Glossary and Du Fresue's Lexicon under these Titles But farther to confirm who were then the Constituent Members of our Great Councils pray see the Title to the Assize of Forests under King Richard the I. which Hoveden recites in these Words Haec est Assiza Dom. Regis haec sunt praecepta de Forestis suis in Angliae facta per assensum Consilium Archiepiscoporum Episcoporum Abbatum Comitum Baronum Militum totius Regni Where by Militum is to be understood not only those Tenants in capite that were Knighted but also all other Tenants in capite and if the Word ever signifies any other persons they were not ordinary Freeholders but Liberè Tenentes in servitio Militari Freeholders in Military Service as you may find in the Dr.'s Glossary Tit. Probi Homines Milites c. But pray remember also what Sir H. Spelman tells us in his Glossary Tit. Miles that these Milites when put alone were properly the Liberi Tenentes or Tenants in capite Qui non à Militari Cingulo sed a Frodo nomen sumpserunt So that I think no ingenious man but will confess that all these Councils were General Councils or Parliaments of the whole Kingdom consisting of no other persons than Tenants in capite F. To return an Answer to all your Authorities together I must now repeat what I often said that there are no firm Arguments to be drawn from the doubtful Words and general Expressions of our Ancient Historians and I doubt not but to shew you that all the whole strength of your Reasons consists in this alone But since I have already spoken so much of the various signification of the Word Barones Regis Regni I shall omit that and now proceed to the rest of the Words which you think make so plain for you and shall only observe at present that these Words Barones and Milites are always stretch'd or contracted according as the Gentlemen of your Opinion find it best to suit with their Hypothesis As for Example If the Word Barones is put alone then it must signifie none but Great Barons and Tenants in capite if it be joined with Milites then by Barones must be only meant the Great Barons or Peers and by Milites those Tenants in capite who were not Lords If any other words follow Milites then this Word must signifie only such Tenants in capite as were Knighted So likewise you deal with all other Words tho of never so comprehensive a Signification But why may not I with as much Reason affirm That by Barones mentioned in these Authorities is to be understood the Barones properly so called and by the Milites the Knights of Shires whether they were Tenants in capite or Feudatories to others For Radulphus de Diceto in Anno 1040. in the Laws of Malcolm the Second King of Scots mentions Milites Vavasores qui tenent de Baronibus tetras suas and that not only Tenants in capite but all others of whomsoever they held who were able to maintain themselves like Knights might be then forced to receive Knighthood appears by two Writs of 24 th and 26 th H. III. as they are found in the Close Rolls under this Title Forma de Molitibus faciendis and I desire you would read the Writ it self Rex Vicecomiti Northampton Salutem Praecipimus tibi quod per totam Ballivam tuam in Singulis bonis Villis similiter in pleno Comitatu tuo clamari facias quod omnes illi de Comitatu tuo qui tenent Feodum Militis integrum vel etiam minus quam Feodum integrum dum tamen de Tenemento Suo tam Militari quam Socagio pâ—ssint sustentari Milites non sunt Sicut Tenementa sua deligunt citra festum omnium Sanctorum Anno Regni Nostri 25. Arma capiant se Milites fieri faciant Et si qui fuerint tales qui citra Terminum illum se Milites fieri non fecerint Omnia Nomina eorum Statim à Termino illo quantitatem Valorem tenementorum suorum nobit scire facias Teste Rege apud Lewes 25 die Iulii Similiter Scribitur omnibus Vicecomitibus And as for the Words Homines Sui which you will have only to mean the King's Tenants in capite those Words have so equivocal a Signification that there is no Argument to be drawn from them for they may as well signifie all the King's Subjects sworn to him by Fealty and Allegiance as Tenants by Homage or Knights Service only as Sir H. Spelman in his Glossary observes upon the Word Homo dicitur de quovis Praediorum Tenente sive Socmanno sive Militari And for this he cites the Book of Ramsey and if Suus be added to Homo it doth much alter the Case as appears by the words following in the same place Dicitur Praeterca de Quovis Ministro Subdito saepe occurrit hoc modo in Antiquis Privilegiis non Solum Vassalos Tenentes sed Famulos Subditos quoslibet Significans and for this he gives us several Authorities So that you see these Words do not only signifie Tenants in capite but also any other Subjects and so might take in the Knights of Shires with the Citizens and Burgesses likewise at least the Representatives of such Cities and Burroughs as held of the King in capite by your own Sense of these Words But I shall however say something of the rest of the Words you insist upon out of Abbot Benedict viz. Barones terrae suae which means no more than Regni sui before mentioned and then it will signifie no more than that all the Barons of his Kingdom were summon'd to this Assembly which Word Tenents in capite I can give Mr. Selden's Authority for who in his First Edition 2 d Part hath his remarkable Passage speaking of the several kinds of Barons he says That besides the Barones Regis there were Barons of Subjects holding not of the King but by Mesnalty who made a third Rank of such as were Lords of Mannors c. Out of this may be understood why and in what sense Baronagium Angliae Rex Baronagium suum sine Assensu Baronagii sui so often occur in our old Stories taken as well for the King and the whole State sometimes as for the Greater Nobility But if your Dr. had been pleased to have compared the Authors he quotes with others nay with the Title to the very Constitutions of Clarendâ—n themselves as he hath given them as in his Appendix to his History out of Quadrilogus this Objection would have been needless for if you consult Gervase of Canterbury he stiles the Parties to this Council Praesules and Proceres Anglicani Regni And as for Matt. Paris pray observe that after the