Bishops Abbots Dukes Senators Populo Terrae Lords and Commons It was Decreed and Enacted That Kings should be Elected by the Parliament à Sacerdotibus Senioribus Populi Eligantur and that being so Chosen they should have prudent Councellers fearing God Consiliarios Prudentes Deum Timentes and that Bastards de adulterio vel Incestu procreati should not be admitted to the Crown it is both in Sir Henry Spelman and in the Magdeburgens cent 8. cap. 9. pag. 583. c. Edit Basil 1567. Egbert by all is a fixed settled Monarch but without or against Right of Succession Ordinatur in Regem So Ethelwerd Omnium Consensu Rex Creatur in Polidor Ad Regnum Electus moxque imperare Iussus Patriae desideriis satisfecit as we read in the Monk of Malmsbury About this time the Mannor of Mallings in Sussex was settled on the Church of Canterbury by Act of Parliament Consentientibus Magnatibus It had been given before by one of the Kings but it was recovered again Eo quod Magnates noluere Donationem illam Ratam fore To what Sir Henry Spelman hath of 838 I shall only add that Matthew of Westminster doth afford us Princes Dukes Earls and Barons both in that and former Years besides Inferior Laios and Clergy whom he calleth Rectores Ecclesiarum and in Ingulph we find Principes Duces Comites Barones Comitatus and Baronias with Proceres Majores long before the Norman Ethelwolf a Monk a Deacon and a Bishop yet Elected King because they could not find a fitter person for the Crown Necessitate Cogente factus est Rex in Roger Hoveden Consensus Publicus in Regem Dari petiit in Bale At Rome he repaired the English Colledge lately Burnt but he displeased the Parliament by getting his Son Alfred to be Crowned by the Pope and by Marrying a Daughter of France whom without their Consent he styled Queen which was against the Common and the Statute-Law contra Morem Statuta as we find in Florilegus to be compared with the Saxon Chronology and Asser Menevensis with Wigornensis and Malmsbury before Stow or Polidore But notwithstanding his Coronation by the Pope King Alfred did acknowledge his Kingdom to the Bounty of his Princes and Elders of his People Deus Principes cum Senioribus Populi misericorditer ac benignè dederunt as himself speaketh in his Will subjoyned to his Life by Menevensis wherein he also desireth to leave his People whom he calleth Noble West Saxons as free as mans Thoughts within him Ità Liberos sicut in Homine Cogitatio How far West Sex did then extend may be known in the Saxon Laws with those of St. Edward and Hen. the first where it is Styled Caput Regni Legum as London before to which all must have recourse in omni Dissidentia Contingentum Edward the Senior was his Son but Elected King by Parliament Successor Monarchiae Eadwerus à Primatis Electus my Auhor is old Ethelwerd King Ethestane a natural Son and so excluded from the Crown by Act of Parliament at Calcuth yet being a gallant Prince of great Hopes and Virtues he was Elected Electus magno Consensu Optimatum à Populo consalutatur ab Archiepiscopo more-Majorum Coronatur as we read in Malmsbury Huntingdon and Virgil. Yet there was a great Lord Elfred who opposed much and e're long Rebelled scorning to Submit to him Quem suo non diligisset Arbitrario being sent to Rome to purge himself of this Treason he Forswore it at St. Peters Altar but fell down and being carryed into the English Colledge Dyed and his Estate by Act of Parliament was given to the King Adjudicata est tota Possessio in magnis in Modicis quemadmodum judicaverunt omnes Optimates Regni Anglorum as the Kings Charter speaketh settling his Land on Malmsbury How tender they were of Blood I spake before and of K. Williams Law Nequis occidatur vel suspendatur but Wigornensis and Hoveden speak of K. Henrys Law for Hanging any found in Furto vel Latrocinio yet in Ethelstane the Wergylds were agreed by Parliament and a Kings Life valued at 30000 Thrymses Of Anlo's League among the Saxon Laws that he was chosen King by some that rejected Edmund we read in Florence and Hoveden as of one that Scrupled in Ethestane because he had Sworn Fealty to Anlave in the Monk of Malmsbury but it might be another Anlave Edred came in by Election being preferred before the Sons of Edmund who was King before him of his Parliament Summoned by Writ we spake before in the Militia About this time were the Constitutions of Odo de officio Regum Secularium Principum they are found in Saxon and are now Printed in Latin to be compared with the Statutes of Calcuth What Power they had may appear in Edwin for Incest Excommunicate by the same Odo unanimi omnium Conspiratione Edwino dejecto Eligerunt Deo Dictante Edgarum in Regem Annuente Populo res Regni Publica despertita inter Fratres and afterwards Clito Edgarus ab omni Anglorum Populo Electus est c. Confluentibus Principibus omnis Ordinis Viris cum magna Gloria Bathoniae coronatus est presentibus Praesulibus ac Magnatibus Universis Datis singulis Donariis consuetis quae Reg. Coronat dari Magnatibus consuescant of which Matth. Westmon Malmsbury Hoveden and Florence of Worcester How this Mighty Edgar was handled and Humbled for Ravishing a kind of Nun is observed by divers and that after his seven Years Pennance being not to wear his Crown Congregatis omnibus Angliae Principibus Episcopis Abbatibus The Crown was again Restored to him Coram omni Multitudine Populi Anglorum cunctis Laetantibus Deum in Sancto Dunstano Laudantibus as may be read in Capgrave Baronius of this and a great Lords Rape of that time speaketh of some Appeal to Rome whence Dunstan was commanded Peccatori condescendere but he would understand it only si Penitens Peccatum relinqueret Nec aliter saith Baronius potuit intellexisse Edgar being dead there was much Contest in Electing the next King De Rege eligendo Magna inter Regni Primores orta est Dissensio quidam Eadwardum Quidam eligerunt Ethelredum as the Monk of Worcester besides Hoveden and Matthew of VVestmon who agree also that at length the Arch-Bishops cum Chorepiscopis Abbatibus Ducibusque quamplurimis did Elect Consecrate and Anoint Edward Who enjoyed it with little quiet and among divers Contests of Parliament affrighted at the House Fall or amazed at the Angels or some Strangers voice they knew not whence E're long we find him hudled into Dust at VVarham which Queen Aelfrith or Aelsted attoned by Hospitals or other works of Devotion but a Fiery bloody Cloud followeth a Blazing Comet Of St. Edwards and St. Dunstans annual Festivals established by Parliament the Laws of Canute It was that Dunstan who presaged so much ill of Ethelred at his Baptism and to him
RIGHTS of the KINGDOM OR CUSTOMS Of our ANCESTORS Touching The Duty Power Election or Succession Of our KINGS AND PARLIAMENTS OUR True Liberty due Allegiance three Estates their Legislative Power Original Judicial and Executive with the MILITIA Freely discussed through The British Saxon Norman Laws and Histories WITH An occasional Discourse of GREAT CHANGES yet expected in the World LONDON Printed for I. Kidgell 1682. THE PREFACE TO THE READER READER IF you be wise and good you are above my Epithets and more above my Platteries But yet you may expect a Preface to excuse this unexpected Address The habit is somewhat strange and my self so little acquainted with it that I cannot much wonder if others should gaze upon it but account me a Stranger and you will forgive me It is no matter who but what is here presented to your view I cannot excuse it either for matter or manner It hath much folly to my sight and more I believe than yet I see It may be also somewhat false although I know it not This should not prejudice all for there are Spots above the Clouds and the Kingdom of Heaven it self was like a Field of Wheat with many Tares How much more how much worse must it be with a frail man But why then do I venture to come abroad The Objection was strong enough to keep me silent hitherto and it may be nothing but Duty should have perswaded or prevailed on me to be publick now and yet I do not plead an extraordinary Call which is a close Writ and not a Patent Those who receive and act by such a Warrant should be sure they know the Hand or Seal or Dialect of Heaven But I am an English-man and therefore am obliged to this Country and to these Laws that made me free And this may be some Call that I say nothing of particular Obligations to the State in any Courts of Justice or relation to the highest Court of Parliament And why may not I believe my self as free to think or speak or write as others are to do There is a Night of silence and an evil Day when every prudent man shall hold his peace but also there is a time to speak and a word in season fitly placed like an Apple of gold in a Picture of silver But who knoweth his season for our time is hidden and because man knoweth it not therefore is his labour increased under the Sun This also is vanity and a fore vexation I said there are older and wiser and better than I they shall speak and teach me Wifdom I will hear in silence Nor do I now say They convinced him not lest it should be said We have found out Wisdom God thrasteth him down and not man Nay they have spoken much and little may be left for me but to repeat somewhat already said Be it so then by this I shall be free for if I speak their words I may be pardoned as those that spake before And if I adde a new word shall I be made an Offender for a word However my hope is that the Great Day of Judgment of which we have long heard and now seen so much before us will have such influence upon our Judgement and Affections that we shall all be ready to judge our selves rather than others or if others not with prejudice And with this assurance or with this confidence I now presume upon your goodness knowing well that if you find but one so much as one Cluster you will spare it and be pitiful there may be a Blessing in it RIGHTS OF The Kingdom c. TO see the Kingdoms Rights the Laws and Customs of our Ancestors concerning King and Parliament that we may know their Power and Priviledge their Duty and their Limits c. and how our Fathers did commit the power of making Laws and judging by those Laws and how they made us swear Allegiance to our King what power they gave him over us and what they did not give him over any of his Subjects how we should behave our selves c. He that accounteth these unworthy of enquiry may be thought as the Gretians said to the Persians not to have heard of Liberty Which else would be valued above an Enquiry But alas who is able who will undertake to trace our Laws and Customs thorough the Heights and Depths and dark Abysses and Meanders of the British Saxon and the Norman Nations that have ruled here Yet there are thousands that may do it much better than I and therefore I might justly sit in silence and expect my Antients and my Betters should begin that I might learn from them Nor should I now presume to speak but that I might inform my self from others that by this occasion may reform my Errours and may cleaâ— our Laws and Customs much more fully than I do or can be able who pretend to nothing but desire of Truth and Peace And first to speak of the mutual obligations of Oaths between Prince and People the School-men would be thought most curious or most tender in the point of Oaths They mince them out so fine that a whole million of Oaths may stand as they speak of Angels on the point of a sharp Needle They tell us of the Object and the Subject or the Matter which they say may cease or fail so much that any man may find or make himself absolved from his Oaths But in things of such concernment to ones Soul I love to speak or think in English that I may understand my self and I thought it madness in the man that said his Prayers in two or three Languages adding this in the close Now take thy choice for all are alike to me I know not my meaning in either In plain English I do not see I may absolve my self from an Oath by saying He was not the man I took him to be in some material points at the time of my Oath yet this is much and that which seemeth near to that which the Schools speak of want of Subject or sufficient Matter to be ground of such an Oath I should have looked to that before it may be rash and so must be repented but a River of Tears may never wash me from this Oath of God as the case may stand And so it was I suppose in that of the Gibeonites they were not such as they made themselves nor such as Israel took them for the Oath was rash unjust they ought not to have sworn they should have stayed and sought direction for they were forbidden Leagues with such commanded to destroy and ruine such as those men were and might have been suspected But when it was done we see how strict and solemn God was still in pressing them to keep that Oath Nor may it suffice to say I swear against my will they had advantage of me and I could not but comply either with some Mental Reservation or at least for that is much condem'd by most
Henry the first the Descent of divers Nations of Europe from the Trojans in Huntingdon and Hoveden But it may be considered what this State and Parliament hath oft owned of Brute and the Trojan Story not only in the grand Moot of the Dependance of Scotland on England ever since King Brute which beside all Records in the Exchequer is at large in Walsinghams Edward the first and the Survey of Normandy as also in the Laws of the Confessor cap. 35. To which I might add the Trojan Reliques Statues Tablets and Pictures in all the Brittish Danish Saxon English Wars found here in Cornwall Wales and other Parts besides our Troy Novant or new Troy the old Trojan Roman name of this Famous City of the Troinovantes in the Roman Writers Trinobantes now London since the time of Lud's building a Gate and changing this Cities Name But for leaving out the Name of Troy some were so much offended that it came to a great Contest and Quarrel couched in Verse from others by the old Gildas and translated by the Famous Nennius of Bangor escaping that bloody Massacre Who hath also left us an old History yet to be seen in MS. collected as himself saith from the Brittish and Scottish Records and from the old Roman Annals which were then found relating the Pedigree of Brute or Britto some will have him Brotos and some Brutus from Aeneas to Rome and his bringing some Trojan Reliques hither by the way of Gaul where he also saith he built the City of Turons or Tours much as Monmouth and others have the Story though I could never find it in Homer or any of the Ancients by them cited for Turons Yet I find the same Nennius confessing that the Brittish Annals had another descent of their Brute or Britto from Japhet obtaining Europe for his Portion with the Brittish Isles of which Noahs Will in Eusebius or other old Fragments came alone from whence the Almans and Francks besides our Britto Father to the Brittains whose Genealogy through twenty Descents to Noah and Adam he saith he had from the Tradition of those who lived here in Primis Britanniae Temporibus So that if we may not believe Taliessin the British Bard of Trojans coming hither with their Brute yet we may peruse his Scholar or the Merlin that foretold the Name of Brute should come again upon this Island whether in the Scottish Union or in the Welsh returning to their Lost Dominions I dispute not nor how this Island came so like to Somothrace so near a Kin to Troy in Rites of Worship or in other Customs as of old some did observe especially in those concerning Ceres or Proserpina so famous here that in the old Argonauts the Brittish Isles are stiled the Court or Palace of Ceres and yet this might be for other Reasons But although I cannot deny some Trojan customs among us yet I know not why I should grant that Trojan Succession to the Crown which so many do assert when as themselves do yield the same Trojans to be Brittans and those Brittans of whom we spake before And besides the Brittish Gavelkinde and all before themselves do also relate their own Brute parting his Kingdom among his three Sons and again the Crown parted between the two Sons of Madan two of Gorbodio two of Molmutius two of Lud so near a Kin to him that Caesar found Elected King by Common-Council And I must believe those who assert the Trojan Crown to go by Succession yet I know not why I may not also believe so many good or better Writers of the Trojan Common-Council or Parliament and their Power in Peace and War with all things else that might concern the King or Kingdom which great Council did consist of Princes or Nobles and Elders of the People Of which Trojan Parliament we read in Apuleius Socrates Daemon and in Homer Virgil Dictys and most ancient Dares who lived also in our Britain if good Bale deceive us not which yet is not so certain as that he was Translated or Paraphrased in Latin Verse by Ioseph of Exon or Iscan our Countrey-Man as many of his Verses speak although that Elegant Poem be ascribed to Cornelius Nepos as by him Dedicated to Salust in the times of the great Commerce between Rome and Britain which produced so many famous Brittish Romans beside Constantine Helen and the modest Claudia of whom St. Paul speaketh and Martial in several places maketh her a British Woman I will not insist upon their Election of Emperors or Generals by a kind of Lot in Dictys nor will I deny but the Trojans were severe enough to all Traitors whose dead Bodies also were denyed Burial if we may believe all from the Illiads but the Odysses may also afford us the very same Punishment for Tyrants whom they hated as much as the Grecians Nor will the Patrons of Succession or Prerogative find more encouragement among the Grecians than among the Trojans though I cannot deny but they do rightly observe many Grecian Customs among the Britains nor will I deny to our Ancestors both Greek Philosophers and Greek Schools besides Bladud's at Stamford and other Places I could easily believe these Islands to be known to the Grecians long before the Romans of whom Lucretius is the first that I yet know speaking of Britain but it was described by Polibius though our great Herald seem to forget it who might learn it from the Carthaginians trading hither and by Eratosthenes Dicaearcus Pithaeas and Artemidorus if I be not deceived from Strabo that I say nothing of the old Argonauts ascribed to Orpheus naming Ireland and describing Britain or of the Book of the World in Aristotles Works where Albion and Ferne are Brittish Isles mentioned also in Dyonisius and very famous for their Mines of Tin or Lead whence the name of Cassiterides of which Herodotus and others of the Ancients What was the Grecian Genius towards their Kings doth not only appear in their Supercilious Ephori Eye-brows or the Left eye of Greece but in the Right Eye or Athens of which much might be spoken from all the Greek Historians besides their Laws or Politicks of Plato and his Schollars long before the Attick Laws Collected by Petitus that I say nothing of Aristophanes or any of their Poets But how much our Ancestors owed to the Grecians I do not find expressed by any most of our Plays much of our Works and somewhat of our Laws seemeth to be Grecian The Genius of a State is seen in Plays some think rather than in Work they are Passions and as Lovers Pulses which do shew the Soul much quicker than do Words or Actions and the Greek Scenes were Passions or Sufferings of Princes rather than their Actions and a Tyrants blood was thought the Richest and fattest Sacrifice to please the People and appease their Gods but Interludes must be Corrected much and then they may both Moralize and Methodize the best Historians and may be
Leges ignotas Judicare de eis quas Nesciebant How it was in Parliament while there were only Barons by Tenure would be more enquired But of later times Commons have adjudged Commons and have joyned with the Lords in adjudging Lords of which there are divers Cases cited in the Fourth Part of Institutes Cap. 1. pag. 23. It may be considered that many Kingdoms and Common-wealths that were not Kingdoms in all Ages did consist of Three Estates as of Three Principles in Nature or Bodies Natural which might occasion the Phrase of Tribe in many other besides the Romans who in Three Estates were not so Ancient as the Grecians or Aegyptians that I speak not of the Gauls Britans or the Eastern Nations And if any would observe it might be possible to find the Prophets hinting a Trinity in divers Kingdoms or Estates and that not only for moulding but for overthrowing them Besides the Three Captivities or Three overturnings of the Iewish State and the Three blows of the Goat on the Ram in Daniel as alluding to the Three great Battles which did break the Persian Empire And why may not the Sacred Trinity be shadowed out in Bodies Politick as well as in Natural And if so our Three Estates may be branched as our Writs into Original Iudicial and Executive as shadows of the Being Wisdom and Activity Divine If I may not grant yet I cannot deny Original Power to the Commons Iudicial to the Lords Executive to the King as the Spirit to the Body or if you will the Head or Fountain of Sense and Motion But he must see by two Eyes and hear by two Ears as I touched before yet his very pardoning although it be by Law much limited doth seem to speak his Power Executive And so his Writs do speak aright Because my Courts have so and so judged Therefore I do so and so command the Judgment shall be executed And if any will assert the Militia to this Power Executive I shall also grant it to the King So that it may be alwayes under the Power Original and Judicial This might belong to the Lords and that to the Commons And the plain truth is I do not find more Arguments to prove the Judicial Power to belong to the Lords than I do for rhe Legislative in the Commons And as it seemeth to be above so below also it may be much disputed That the Legislative Judicial and Executive power should be in distinct Subjects by the Law of Nature For if Law-makers be Judges of those that break their Laws they seem to Judge in their own Causes which our Law and Nature it self so much avoideth and abhorreth So it seemeth also to forbid both the Law-maker and Iudge to execute And by express Act of Parliament it is provided That Sheriffs be not Justices where they be Sheriffs But if Execution be alwayes consonant to Judgment and This to the Law there is still most sweet Harmony and as I may say a Sacred Unity in Trinity represented That the Commons should have most Right to the Power Original or Legislative in Nature I shall leave to be disputed by others I shall only touch some few Particulars which have made me sometimes to suspect that by our Laws and Model of this Kingdom it both was and should be so How the Roman Historian found the Judicial power given to the Lords by our Old Ancestors I did observe before he is as plain for the Legislative in the Commons Nay to the Lords themselves he saith in Judging was adjoyned a Committee of Commons both for Counsel and Authority Ex plebe Comites consilium simul Authoritas And again he sheweth how the Lords did sit in Council about the less Affairs but of greater all both Lords and Commons So also that those things which the Commons did determine Quorum Arbitrium penes Plebem apud Principes pertractentur they should be debated with the Lords for their Advice but not their Legislative Votes And the Mirror a good Comment on Tacitus in this sheweth how our Lords were raised out of the Commons and giveth them a power Judicial but where is their Ligislative Nay the Modus of Parliament will not only tell us that the Commons have better and stronger Votes than the Lords but that there may be a Parliament without the Lords as well as Prelates For there was a time in which there was neither Bishop nor Earl nec Baro so the Irish Modus and yet there were Parliaments without them but never without the Commons So that if the Commons be not summoned or for Cause Reasonable cannot or will not come for Specialties in which they blame the King Parliamentum tenebitur pro Nullo quamvis omnes Alii status plenarie ibidem interfuerint And the Kings Oath is to confirm the Just Laws which the Commons not the Lords but Commons shall Elect or Choose quas Vulgus Elegerit So in Latine and in French of Edw. 2. and Edw. 3. Les quiels la Communante aur ' eslu And in English of Hen. 8. and other Times which the Commons of the Realm shall choose And if we look into the Old Writs of Summons we shall find the Commons called ad consentiendum faciendum and the Old Writ addeth quod quilibet omnes de Comitatu facerent vel faceret Ii personaliter interessent As it is in the Modus of Parliament with sufficient intimation that without the Commons nothing could be done which the late Writs express thus Ita quod dicta Negotia Infecta non remaneant pro defectu potestatis c. But the Lords are called de quibusdam arduis tractaturi consilium Impensuri only as Counsellors not as Law-makers For the very same words are in the Writs for the Judges and others coming to Parliament although they do not Vote in making Laws This may also shew us how the Lords themselves did Elect the Knights of Shires and by Statute of Rich. 2. are to contribute to the charges of the County Knights who were to sit and Vote in Parliament as Law-makers for the whole County whereas the Lords were there but as Judges and the Kings Counsellors And is it probable they should retain to their own Persons that for which they delegated others who were there to do quod quilibet omnes facerent personaliter even all that all the Lords themselves should do as Freeholders not as Lords or the Kings Patentees who might so be his Councellors or Iudges rather than Law-makers this was more left it seems to the Commons who for this and other Reasons should not be Common Iudges as I think in private Causes or of private Persons but of Iudges or of such as the Mirror speaketh of whom elsewhere there was no Common Justice to be had But if the Lords had not a Legislative Right why did the Commons send up the Bills to them how came the Lords to joyn with the Commons in Passing of Acts
It cannot be expected that I should shew the Original of all Changes or Distempers in this Kingdom It is work enough to shew our first Mould or Constitution yet for this also it cannot be doubted but the Barons Wars and Power might gain upon the Commons more than on the King he had such Bounds before that he could hardly be obliged more or capable of granting much but what was due before to all his People But it might be easie for the Potent Lords to grow upon the Commons in the Name of Barons In that Name I say for I cannot determine but the old Barons being the great Freeholders and the Lords of all the Manors that have left their Names in our Courts Baron had by Law and Reason much more Power than had the Kings Patentees Created Barons by Patent or Writ But this new Creation did but multiply the Iudges or the Kings Councellors for by so taking their Commission from the King they were only as other Judges in Inferiour Courts and so did really lose their great Power of Iudging which was proper only to those who were the Kingdoms Peers and Iudges So that these Lords did justly admit the Commons or rather were admitted by the Commons into the grand Iudicature and it may be that as the Barons did communicate their Power Iudicial so the Commons might communicate their Legislative unto those who had the Name but little of the Nature of the old Barons by Tenure yet by so doing they might bring Confusion or an harsh Discord into Natures Harmony But the main occasion seemed thus the King was tyed by his Coronation Oath to hold keep and defend the just Laws and Customs chosen by the Commons Iustas Leges consuetudines quas vulgus elegerit and this Limitation of Iust seemed to admit of reason or debate so much as might convince the Laws required to be Just for else I know not that the King was ever tyed to them And because he was or might be an Infant he had still a great Council about him to discuss the Laws proposed by the Commons and for this Cause he did and by reason might Summon the Lords or any other Wise and good Man he knew to come and give him Counsel as the Writ speaketh to the Lords and Iudges c. De quibusdam arduis nobiscum tractaturi Concilium impensuri So we find the old Acts passed per Consilium Baronum as we might shew in all Ages And because he used to demurr at Bills till he had the Advice of his great Council hence it may be for more Compendium the Bill was sent up first to the Lords as the Kings Counsellors and if they Counselled him against it then he answered Le Roy s'avisera The King will yet be farther Advised for he did not and I think he could not give a denyal nor of old perhaps Demurred till the Lords advised him against it I dispute not how much the Commons might oblige the Commons without assent of Lords or King Nor have I yet said that in the Coronation Oath the Commons Just Acts are called Laws and to Mould them may be works distinct enough and the plain truth is his Oath is to hold and to keep and to defend the Commons Laws à Tenir Gardir Les Defenderer per se tenendas protegendas as well as to Grant or to Confirm However I do not see either by Reason or Law That the King was so obliged to the Judgment of his own created Lords and there be few or none others left in England that he might not be convinced by the Reason of the Commons either without or against the Lords And beside divers Ordinances without any of the Lords it cannot be denyed but in Divers ages there were Acts of Parliament made without or against all the Lords Spiritual which yet often were the Major part of the Lords House and had as good it may be better Votes as Barons by Tenure than had all the other Lords by Writ and Patent only which might make them Judges or Councellors much rather than Law-makers I should still be far from desiring to obtrude my own Fancies or Opinions upon any least of all to the wrong of others Therefore if any can produce a better Title my Petition is they may be heard and may receive their Just Rights and Priviledges But if this be true which I now only propose and submit to better Thoughts and Judgments then had the Lords of late but a Right Consultative of making Laws And besides all that was said before this seemeth one Reason why our Ancestors did so willingly follow the Vice of Nature in placing the Power Legislative Iudicial and Executive in three distinct Estates as in Animals Aerials Etherials or Celestials three Regions and three Principles in Naturals that so they might be forced to consult often and much in all they did And if this frequent Consultation were retained and observed still it might not only occasion good Reviews but also prevent That which to the Common-wealth I fear and not Alone to private Persons may be sometimes prejudicial in a sudden Vote or Act of one House or one Body and yet one may be better much than Many if they be not good It must be granted that in Bodies of the Best Complexion and Composure here below there may be such Distemper and such Gangrene in some Members that it may be more than fit to cut it off Nay what was best may come to be the worst in Putrefaction That it may be meer Necessity to bury it although it were as Dear as Sarah was to Abraham or set on high by him that raised up the Brazen Serpent which see e're long lye buryed with this Epitaph Nehushtan And to all that is truly Just the Commons of England will not need to plead a bare Necessity for by Law and Reason too it may be said and proved I believe That both the King himself who chooseth by his Writ and All the Lords by several Votes have left the Legislative power so to the House of Commons that they had a Legal Right to do what all the Kingdom and Common-wealth of England Justly could But They are Men and therefore may be much unjust Nay where the Thing they do is Iust They may be much or most unjust I have neither Calling nor Ability to Judge them Nor may I act with force against them for whate're I think Unjust No not if I should think they did Usurp the Crown For if the Law Reports and Books deceive me not it hath been Judged Treason and so is for Private Men to rise conspire or Levy War against one that Usurps the Crown and Rights thereof except it rightly were declared Usurpation or that others should or might oppose him that did so Usurp Of which the Reasons may be Great and obvious Let me then suppose any one Man of all the Commons in Parliament for I will not
Parliamento personaliter Existentibus And the Title of these Acts is Statutae Canuti Regis Angl. Dan. Norw venerando Sapientum ejus Concilio ad Laudem Gloriam Dei sui Regalitatem Reipub. Utilitatem Commune Commodum habita in S. Nat. D. apud Winton c. This I find also cited by the great Judge in one part of his Reports but fuller by Sir Henry Spelman It would be tedious and superfluous to cite the Authors that assert he did confirm King Edgar's Laws in full Parliament For which we might produce some better or at least much older than good Bale or Grafton Many of his Acts of Parliament are printed Consultum quod Canut Angl. Dan. Norw Rex Sapientum Concilio Wintoniae Sancivit Here Allegiance or Fealty setled by Parliament and afterwards Praecipimus uniuscujusque Ordinis singuli Muneris atque Officii sui Religionem Diligenter cauteque teneant And among other Encouragements to Chastity this is one That such chast men of God should enjoy the same Rights or Priviledges with Thanes and Ethelstane's Laws do equal Priests with Thanes But there are two or three degrees of Thanes in these Laws about the Hereots for the Eorles and Thanes c. much to be marked as pertaining to the Militia For which and for all Canutes Laws the old MSS. Huntingdon is worth perusal Again we find other Statutes Civil or Politick Sapientum adhibito Consilio Mid Minan Witenan raede that Man heald ofer eall Englaland With provision against Thieves Robbers for the Peace Hue and Cry c. There are Statutes also for repair of Burgs and Bridges Scyrforhinga praefidii fiat apparatus Terrestis ac Maritimus quoties ejus Muneris Necessitas Reipublicae obvenerit And presently after Quae ad Reipublicae pertinent Vtilitatem Among the Crown-Prerogatives Violata Pacis Divitatae Militiae Mulcta Sheriffs Turns Hundreds and Tythings are here confirmed and the twelve-year-old Fealty with views of Frank-pledge But this Oath was to the Kingdom rather than to the King Fidem det omni se in posterum aetate tum Furti tum Furti Societate Conscientià temperaturum Again of passing Ordeals Sythan tha Gemot waes on Winceaster since the Parliament at Winchester this being at Oxford at after Iussum vero ac Placitum hoc Nostrum si Praepositorum aliquis incuriâ omiserit aut exequi aspernabitur ex Nostrà Omnium Sententia Regi 120 s. Dependito A clear Parliament Si quis alium injustè armis spoliavit eam quae est loco Colli obstricti Mulctam Dependito Healsfange It is also in the same Laws the punishment of false Witnesses Some think it the Pillory some worse as the Original of that Proverbial Letany From Hell and from Halefax See K. Hen. Laws and Helfang Si quis in Militiâ perfectione Militari pacem violaverit vita vel Weregild Mulctator si quid rapuerit pro facti Ratione compensato Si quis Pensionem ad oppida pontesve reficiendos denegarit Militiamve subterfugerit dato is Regi 120 s. Again in those Statutes The King must live upon his own Feormians or Farms which in Saxon afford all needful for man and none may be compelled to give him any Maintenance That the Folk be not burthened It is the 67th Chapter Loss of Dower or Joynture to Widows marrying within twelve months might seem hard but so long she need not pay any Heriot And the same Laws free the Wife from her Husbands Theft although found with her except it be lockt in her Hord Chest or Tyge Dispensae arctae Serinii Of which that Law giveth her leave to keep the Keys But Ina's Laws are hard concerning Children Again for the Militia He that in Sea or Land-fight leaveth his Lord or Comrague Felugo must die as a Traytor his Boocland to the King other 〈…〉 Estate to his Lord. But of him that dieth fighting with his Lord without any Heriot the Heirs may enter and Scyftan hit swithe righte Of this Shift-Land and Gavelkind Lambard in Terra Scripto Perambulation of Kent and Spot of Canterbury besides several Acts of Parliament in Edw. 1. Edw. 3. and Hen. 8. If Celeberrimus ex omni Satrapia Conventus which is there and by King Edgar also to be twice a year or oftner be Parliament as such great men have thought then have we much here also for Power and Priviledge of Parliament Nay more indeed if it were but the Grand Folemoot or Sheriffs Turn so much below a Parliament He that in such a Grand Moot had defended and maintained his Right and Plea to any Land is there setled without dispute for his life and his Heirs or Assigns as his Will should dispose Chapter 76. And again for Priviledge of Parliament or yet lower Sive quis ad Comitia profiscator sive revertatur ab eisdem from Gemote or to Gemote placidissima pace fruitur nisi quidem furti fuerit manifestus Theof Thievery founded more with them than now with us For their twelve-year-Oath of which before at Frank-pledge was onely against Theof which yet seemeth to intend all above it for what forbiddeth the less forbiddeth the greater much more One thing more I may observe through all these and other old Laws there is still so much Religion and plain-hearted Simplicity with Piety expressed that it shews our Ancestors had not yet learned to be ashamed of their God or of looking towards Heaven I have been the longer in these that so I may be the more brief in those that follow for by this time I am come to the Laws of St. Edward as he is called and I should mispend my own time and abuse others in vouching all the Demonstrations of Parliaments in his time His Charters to Westminster are near enough and may be known of all wherein he confesseth his Resolutions for going to Rome But Optimates Communi habito Concilio rogabant me ut ab intentione desisterem his Vows made him more pressing than else he should have been But these also his Parliament undertook to satisfie Et tandem utrisque placuit so he speaks ut mitterentur Legati c. While these stayed at Rome procuring his Absolution a Vision to a Monk commandeth repairing or refounding of St. Peters Westminster as antient as Austin the Monk I cannot omit a passage in one of the Popes Letters of that time telling the King That he must expect great Motions and Alterations for the World was near its great Change and the Kingdom which he calls Sanctorum Regnum foretold in the Scripture was coming to begin and never should have an end King Edward refers it to the Parliament and at length Cum totius Regni Electione they are his own words he sets upon the decayed Minster Which he rebuilt with the Tenth of his whole Estate and there reposed the Reliques which the Popes gave to King Alfred at his Consecration with this grand Priviledge of Refuge and Pardon to any that fled
hither for Treason or any other Crime whatsoever Another Charter he granted to the same Minister Cum Concilio Decreto Archiep. Episcop Comitum aliorumque Meorum Optimatum And a third Charter addeth Aliorumque omnium Optimatum And a little lower Coram Episcopis Abbatibus Comitibus omnibus Optimatibus Angliae omnique Populo A very clear and full Parliament His Laws are in print I must not so much as glance but as he that followed the great King so swiftly that his steps could not be seen upon the Sand. May not his third Chapter extend to Priviledge of Parliament ad Dedicat. ad Synod ad Capitul venient Si Summoniti sint c. sit summa Pax. Hoveden will help sometimes for a Comment That of Out-Laws should be explained It is Ore Lagali Regis which is Per Iudicium Coronaterum or in the great and old City Per Iudicium Recordatoris See King Ethelred's Charter to Vlfrie of the Lands of Ethelsig outlawed for Theof Rep. part 6. Pref. But of Woolff-head and the Outlaws being slain upon Resistance I have spoken already As also of Tythes and King Ethelbert's Parliaments in these Laws mentioned and of Rome-scot Danegeld and Weigrylds But of these again ere long Of the Kings Duty and Oath we must speak more in due time Of his Pardon before as it might stand with the Oath of his Crown Here also we find that when his Pardoning Power was largest yet it could not reach to Murder or Treason or other Crimes but so as they must abjure and if they stay and be found any might do Iustice on them without Iudgment It is the 19th Chapter Somewhat we said of Degrees or Counts Earls Thanes or Barons The Phrase doth here occur but of elder times by much nay long before King Ethelbert's Barons if we may believe Historians But of this again in due time Of the Iews also before Iudaei omnia sua Regis seemeth hard but it had a gentle Comment in succeeding times and here also they must be defended Sub tutela defensiones Regis Ligeà The Phrase may be remembred till we meet it again King Iohn did but confirm King Richard's Charter to the Iews See Hoveden and Matthew Paris of Richard and Iohn Walsing Edw. 1. Neustria Pax per breve Regis is a short Expression but it might have a long gloss and be compared with all our books laying this for a principle or foundation of Law That Writs were made by Parliament and without such common Consent could not be changed Of which the Mirrour Bracton Fleta divers others But of another Breve de pace before the Combat in Right or Assize Glanvil Hengham and the Register Of Frank-pledge Tythings Counties Hundreds and Wapentake somewhat before This Law may fill up Lipsius on his Tacitus nor is it useless for the Militia Hac de causâ totius ille conventus dicitur Wapentac eo quod per Armorum i. e. Weapun tactum ad vincem confoederati sunt There is an old Comment on that de moribus Germanorum that may help and please in all of Hundreds Wapentakes Cities Counties with Counts or Eolders of which before in State and Church But to these of the Church I did not then adde their Power and Custom of healing the Sick by anoynting them For which the Saxon Canons of Aelfrick may be perused In this Chapter of Greeves with the Appendix de Heretochiis we may see the whole Model of the old Militia with the Power of Headboroughs Constables Bayliffs Aldermen Sheriffs Lieutenants or Generals all the Greeves both in the Gree and Vae Peace and War for so the Law is pleased to criticize and for Peace we do agree The Law is in print and may be read of all in which it is so clearly stated and asserted by these Laws I should do wrong to take them in pieces Not onely in matters of common Justice or serving of Writs or petty Cases of Peace as some have pleased to express it but when any unexpected doubtful mischief ariseth against the Kingdoms or against the Crown Nay when it proceedeth so far as to War Battel or pitched Fields the Heretoches must order the War Ordinabant acies alas constituebans Prout decuit prout eis melius visum est ad honorem Coronae ad Vtilitatem Regni And lest yet there might be any mistake the same Law telleth us That those Heretoches ductores exercitus capitales Constabularii vel Mareshalli exercitus were and still ought to be chosen Per Commune Concilium by Common Council and for the common good and profit of the Kingdom even as the Sheriffs saith that Law ought to be chosen Again the former Laws are renewed for those that flie and those that die in the War and of their Heriots which here are again remitted with all Relief Of which before I am the longer in this because it was this very Chapter which has been so strangely cited and that also from a place as much suspected as any of all these Laws which I do â—ot speak as if I thought they might not be strongly asserted even there where the oldest Copies are defective And for one instance of many I might produce that piece about the Kings Oath which is cleared not onely by the Mirrour and divers others but by another passage in the oldest of these very Laws themselves by comparing it with what is there said of King Edward 's own Oath to his Kingdom Of which much more hereafter on occasion To that of King Arthur's King Edgar's and King Ethelstane's Conquests much might be added in special touching Scotland Of which before And now I adde That what is here ascribed to Eleutherius may be much asserted and enlarged from those that have clearly stated the bounds extent and jurisdiction of the Province and Diocess of York for to it belonged as I find in a very good Author all the Church of Scotland long before it was divided into modern Bishopricks That of Norway and their Affinities with England and Oath of Fealty may now be little worth but in this that is added at the close of that Law So did King Edward establish Per Commune Concilium totius Regni By the Common Council of the whole Kingdom or by Parliament which may well be added to each and every of those Statutes How the Militia was on particular persons or places assessed by Common Assent hath been observed and cleared already I shall now only adde this That when such Assessments were made by Common Council it was then no more in the Kings power to release them than it was to impose them before or without such Common Assent For this might be cited in more than an hundred Charters to religious houses and places of greatest Franchise in which there is such an usual exception to the Trined-necessity of Military Expedition Castle or Burgbote and Bricqbote for here also as with the Romans they were especially Pontifices
bring any Letters of Excommunication or attempt a Voyage beyond Sea without a Licence And for sequestration of the Peter pence till further order If that I have cited already were not clear enough for Parliament in these we may have more from Wendover or Matthew Paris where we are expresly told that the great meeting at Clarendon of which before was made up of a Lord President de mandato ipsius Regis with Arch-Bishops Abbots Earls Barons and to these also are added Proceres Regni which may here speak the Commons as in Hoveden Populus so often expressed of that Parliament For it may be remembred that Virgil himself doth acknowledge the Commons also to be very frequently called to Parliament from the time of King William as we may read in his large description of our Parliaments in Henry the first To which also for this Parliament at Clarendon we might cite very many Historians besides Gervase and the Quadrilogus or Becket's Life by 4 cited on Eadmerus and in Ianus from which there is much to be added to that in Matthew Paris Where it is also asserted that these Constitutions of Clarendon were not only agreed but expresly sworn by all the degrees of Parliament Episcopi Clerus cum Comitibus Baronibus ac Proceribus cunctis Iuraverunt c. as also that these were but a Recognition or Recordation of some part of the Customs and Liberties antecessorum suorum Of which also Florilegus thus coram lege Magnatibus facta est Recordatio regiarum Libertatum Consuetudinum Cui Archiepiscopus assensum non praebuit c. Nor would it be hard to shew very many if not all of them agreed in Elder times Of Foreign Appeals we spake before and the Writ Ne Exeas Regnum is as old as Rufus if we may beleive Polidore or better Authors To that of Appeals from Ecclesiastical Courts to the King or Delegates I can add very little to what is in Caudries Case in the 5th part of the great Reports with the preface to the 6th That against Excommunication of the Kings Tenants or as the Elder Law was of the Barons is cleared enough in the Notes on Eadmerus from the first Norman Records To which may be added a Law of Henry the first of the Wills or Legacies of his Barons vel Hominum with which the Learned Ianus compareth an Old Law of Canute and toucheth the power of the Ordinary in Case of Intestates which is prescribed from most antient Parliaments but the Original doth not appear I must not spend time in heaping up the many proofs of Parliament for the Assizes of Clarendon which were again renued at Northampton Hoveden is large and clear for them all and for the Circuits and Iudges in Eyre by full Parliment Communi omnium Concilio But the Mirror and those that write of Alfred will afford us these in many older Parliaments From that Assize of Arms for every Fee we may learn to expound the Statute of Winchester and others speaking of a former antient Assize which is here found at large To which I may add that what is here spoken of the Iustices presenting to the King may be expounded to the King of Parliament As is fully expressed not only in Fleta but in the said Statute of Winchester The Iustices assigned shall present the dafaults at every Parliament The defaults of Arms for the Militia And by this time I shall not need to speak of Escuage in H. 2d assessed by Parliament for Tholouse Wales and Ireland of which Gervase the red Book in the Exchequer and Matth. Paris with the Notes of Hengham To which I might add Matth. of Westmin de unaquaque Carrucata terrae totius Angliae quatuor denarii Concessi sunt collecti for the Holy Land But when he had the offer of the Kingdom of Ierusalem Convocato Clero Regni ac Populo it was rejected Concilio universo as the Monk of St. Albans speaketh Of K. Rich. Coronation and his Oath before the Nobles Clero Populo Hoveden is very large From him it may be found in others And of the Jews in those times to whom he was a Friend as his Charters shew and very sorry for their sufferings who did help him much for his Eastern Wars as some relate with Polydore See Mr. Selden on Arundeliana Marmora his great Charter to the King of Scotland of many Liberties for which he did recieve 10000 Marks but still retaining the antient Dues to this Crown is every where For which I must not forget what was before in H. the 2d Malcolm became his man 't is said and did him Homage but on some disgust he was not Knighted by our King as was wont and Matth. Paris addeth also that the Scottish Kings Horse was the English Marshals Fee at such a Knighting But Hoveden telleth us that about two years after the same King came again and was then Knighted by King Henry Of his Parliaments and their Power in War and Peace I might cite very clear proofs The League with France was agreed by both Kingdoms Archiep. Episcop in verbo veritatis that was the mode in those days for them as for the Lords since in verbo Honoris Comites Borones Regnorum praestito Sacramento juraverunt And his Sea Statutes were made de Communi proborum virorum Consilio as the Charter it self expresseth it in Hoveden Wendover or Matth. Paris Who doth add that per Consilium magnatum there were made Iusticiarii super totum Navigium Angliae c. Which with divers Records of H. 3d. may be added to the Admiral or Saxon Aen mere eal Over all the Sea How the Lord Chancellor being left the Custos Regni did on pretence of the Kings Warrants pole the People is at large in Hoveden and others But in the Monk of St. Albans we may read that er'e long in Parliament of Commons also assensu Communium definitum est it was enacted that none should so domineer in England to disgrace the Church and oppress the People And that all the Castles which the said L. Chanc. had committed to his Clients or disposed without the Parliaments assent should be presently delivered up and in particular the Tower of London where he then was and was glad to yield and make his peace with much submission for to save his Life For which also Polydore Virgil is worth perusing And in him we also find the North committed to the Bishop of Durham who of an old Bishop was made a young Novice Earl but he paid dear for his honour and how the Chancellor excused himself by the Kings Command As if saith Polydore the Kings Command might disannul the Law Quasi fas esset jus omne principis jussu rescindere Of the Kings Voyage to the East I shall not speak nor of the famous Prophesies he found touching Antichrist and the Revelation They are in Hoveden besides all others Where we also find him ransomed
since the late Oaths of Allegiance and Supremacy which have seemed to abate the use I say not the Force of the old Leet Oath of Grand Fealty Which was perhaps never taken or much understood by some of those that appear most zealous in crying up Allegiance For it is natural to us all to be most confident in that which we least understand They seem to have done much wrong to the King and Crown and to have made so many averse from the very Name of a King who by too much Zeal did strain our English Legiance out beyond all bounds of English Laws and then they would fly out to Forreign Laws as if the Moulds and Sphears of Kingly Power or Subjects Duty were by nature equal in all Climates and in every Kingdom Yet I know not that we need be much afraid to appeal to the Laws of any Civil State especially to those of Iudah which if some had known more they would have pressed less for our Pattern But all English Kings had English Bounds by Law and so we Swore Allegiance and no otherwise by Law It was a Pang of Zeal or strange Affection more than Reason or Religion which did make so many once at Cambridge Swear to Edward the Senior To Will what he Willed c Of which the Saxon Chronology But I hope it is not fatal to that Place or to any others in this Kingdom For I cannot learn that e're our Law did force or wish us to oblige our selves by Oath to Think Speak or Doe as any King would doe or have us for to doe if contrary to Law and right Reason Our Law dispenseth much with Womens Homage and of old they were not pressed to it for a Woman might not say I am your Man nor to a man but to her own Husband Sir I am your Woman yet she was to Swear Fealty So were the Bishops also to Swear Fealty except in Frank almoigne but the Law dispensed with a Bishops or Church-mans Homage so that he needed not to say My Lord or Liege I am your Man The Reason is because he was or should be the Man of God and might not give himself so much away to others as any other whatsoever And the reason of this may reach to all our Fealty so far as to perswade us to consider what it is we cannot nor we may not give away to any Man or Angel Was it not an hard Covenant tendred by Nahash that he would protect all those or own them for his Subjects that would put out their right Eyes and yet this had been more reasonable and Just than to have required absolute Allegiance without any Limitation or Salvo at all For this had been to have bid them pluck out their Souls or at least to uncase them from that which nature hath made the Cabinet of Souls that curious Orient Mother of Pearl Right Reason which doth make us Men that I say nothing of that which makes us Christians or Religious Men. We sinned if we wholly gave our selves unto a King without any Limitation or Restriction whatsoever For by so doing we unman our selves and give away to a Man what we owe not what we may not give to any mortal Creature whatsoever Let us discuss it then by Law and Reason what is our Legal Fealty how Made how Limited how Kept or how Dissolved Let us inquire what Duty what Allegiance is commanded by the Laws and what they did not mean they would not have us give to mortal Man Shall we behold the Sun Reflected or Refracted in a Stream of Water shall we consider the King as Cloathed in the Dress or habit of some other Lord For every Lord the meanest and the lowest is or may be to his Vassals as a little King to his Subjects Such was the Plea of Lanfranc as before at Pinenden and so it was adjudged and confirmed by that Parliament that he should be in his Demesn as was the King in his And the old Laws of Alfred Ethelstane Edgar and Canute with the good Laws of Hen. the first do as much forbid and punish Treason against Inferiour Lords as against the King himself for to them also is Homage done and Fealty Sworn by their Vassals saying My Liege I am your Man and bear you Faith of Life Member and Terrene honour saving the Faith I owe to other Lords Or thus My Lord I will bear you true Faith and do you true Service as my Duty to you is so the Statute of Edw. the Second that is according to my Fee And the Mirrour will tell us that it was an Abuse for the King himself to require it any otherwise for it did not consist in a Point but had much Latitude and several Degrees according to the several Fees And if any such Tenant were pressed on more Service or other than his Fee required or were injured he might Implead his Liege in Law For what his Duty was neither himself nor his Liege Lord might determine but the Law For a Villain who of all Vassals was most Fettered most forbidden to molest his Lord yet might be Demandant in some Real or Plaintiff in some Personal Actions where the Lord might not make plain defence as they speak Nay and Villains also did often bring Actions of Trespass And in Cases of others as of Orphans where the Villain is Executor in Trust he may implead his Lord who can not deny to answear though he do it with a Salvo lest such a Suit might make his Villain free as much as if he had made him an Obligation or a Deed of some Annuity or a Lease for Term or Infeofment with Seisin or had sued him in Law for what he might have had without a Suit For these did Enfranchise the Villain as much as being in a City or Castle without claim or Challenge for a Year and a Day or his Lords giving him by the Right Hand to the Sheriff in full County Court shewing him the open Doors and free wayes and delivering to him a Sword and a Lance or other Free Arms which are the wayes of Manumission in the Laws of King William and Hen. the first where we also find the Text so much Commented by Glanvil Bracton Britton Fleta with the Mirror and others They all agree in this that the Bond and Obligation is Mutual and that the Lords Kiss whispereth as much Respect and Defence as the Vassals Kneeling doth his Reverence Nay there is in Law so great an Obligation on the Lord and so great a Charge often in Guarranty which of old was much larger than now in Homage Ancestrell That the Lord would often refuse and delay to take his Tenants Homage So that there was a Writ made commanding him to take it and by it to Oblige himself to his Tenant whom he was to Defend and his Trespass on him in Law had a very great Aggravation because the Vassal was to be sub defensione Ligea as we found the
their limitations by our Laws their Title by Succession or Election at the Common Law If Bracton or if Fleta may be Judges of this Question they will tell us that in their times our King was Elective Non a Regnando dicitur sed a Bene Regendo ad hoc Electus est And again ad haec autem Creatus Rex Electus ut Iustitiam faciat Universis Not only Created but Elected it is where they treat of Iudges and of Iurisdiction And of our Saxon Ancestors the Mirror is very plain that they did Elect or chuse their King from among themselves Eslierent de eux un Roy à reigner sir eux and being Elected they did so and so Limit him by Oath and Laws In this we might appeal to Tacitus of our Ancestors For theirs who did both Elect and Bound their Kings and Generals Reges ex Nobilitate Duces ex Virtute sumunt and of their King he saith the Power was so bounded that he could not call it Free Nec infinita aut libera Potestas and that in Conciliis Their Kings Authority was in perswasion rather than Command Suadendi potius quam jubendi potestate Caesar seemeth to conceive they had no King or fixed Common Governour in time of Peace but for War saith he they Choose out Generals qui Bello praesint ut vitae necisque habeant Potestatem In our Brittish Ancestors he found a King but by Election of a great Common-Council by whose consent he observeth that Cassivelane was chosen King and General against his Landing Summa Imperii Bellique administrandi communi Concilio permissa est Cassivellauno and again Nostro adventu permoti Britanni hunc toti bello imperioque praefecerant That the Brittans agreed much with the Gauls in their Customs I do not deny but I know not why this should make the Gauls to be the Elder Brothers as some teach us because our Britain is an Island Yet it may be much disputed if not proved that it once was joyned to Gaul or France in one Continent for which we might produce some of the old Poets and others before Twine and Verstegan However it is clear enough from Caesar and Pliny that the Gauls were much moulded by the Brittish Druids although they seemed more Polite in Iuvenal's time and afterwards being more Frank they afforded a Christian Queen to Ethelbert and the Model of a great School to Sigesbert which yet must not wrong Alcuinus who from hence moulded the University of Paris if we may Believe all that write of Charlemaign And if we add Strabo to those cited before we shall find they Chose both Generals and all great Magistrates When they had a King the Crown passed by Election and was so limited that Ambiotrix one of their Kings acknowledged Ut non minus in se Iuris Multitudo quà m ipse in Multitudinem So in Caesar. Their Common-Council much consisted of Equites and such perhaps our Knights of Shires Electi de plebe and Druydes their Clergy who did over-rule them all by their Banns and Sacred Oak Misleto as if it had grown in Dodona's Grove Their grand Corporation was dissolved by Roman Edicts in Gaul by Claudius as Seneca Suetonius but in Rome by Tiberius if not Augustus in Pliny but Vopiscus keepeth a Druydess to presage the Empire to Dioclesian when he had killed the Boar and Ammianus may afford them in Rome in Iulian or Constantius But in Scotland or Ireland they remained longer if we may believe their Annals of Columbanus and of William the Irish Abbot But in Dioclesian's time Amphibalus the famous Brittan fled from Rome to his Friend St. Alban who dyed for him in his Cloaths it is said but we find him Condemned by Law and styled Lord of Verulam Prince of Knights and Steward of Brittain in his Shrine and Iacob de Voragine ' Ere long we find him made a Bishop in the Holy Isle and there he did Succeed the Brittish Druyds and his Scholars were enow with their Blood and Carkasses to make the name of Litchfield But the turning of Druyds into our Bishops in Lucius's time is no more certain I think than that those were the Flamins or Arch Flamins of whom we hear so much of late but of old few or none relate it but only Monmouth The Name of Flamin came to Brittain from the Grecians or the Romans who had Druyds from the Brittans where they were most Sacred Priests at first but three but when every God and Godded Man or Daemon had his Flamin they became extreamly innumerable Yet the first three still kept their Distance Place and Seniority from whence the Phrase of Arch-Flamin which yet I dare not assert to have been in Brittain or to be so much as known in the time of Lucius or the name of Archbishop But of this Sir Henry Spelman of Lucius's Epistles in Gratian and Mr. Patrick Young on Clements Epistle to the Corinthians But Fenestella with his Names of Bishop Arch-Bishop Cardinal Patriarch Metropolitan c. is now come out with another Title of a later Age than he that lived in Tiberius But to return to our Brittish Druyds moulding the State and yet they would not speak of State but in or by a Common-Council as was touched before in the Militia and among these the same Caesar will tell us that there was a chief or President but chosen by Deserts and not by a blind way of Succession Si sint Pares plures suffragio adlegitur nonnunquam etiam armis de principatu contendunt Nor is it probable the Brittans should be great Patrons of Monarchical Succession which could hardly well consist with their Gavelkind which is not only in Kent but in divers other Places of England and in Wales from the Brittans as we may learn from Parliament in 27 Hen. 8. and in K. Edwards Statute of Wales with Littletons Parceners And his Commentator makes it one mark of the ancient Brittans and from them also to Ireland and from the Brittish Gavelkind do all the Children yet among us part their Fathers Arms of which also the great Judge on Littletons Villenage But on the Parceners he deriveth the Crowns descent to the Eldest from the Trojans to the Brittans so indeed do many others with Monmouth and Basingstock Yet our Best Herald the Learned Cambden will deride the Story of the Trojans coming hither but his many Arguments to prove the first Inhabitants to be a Kin to the Gauls do no more convince me that the Trojans might not come hither afterwards than that the Normans did not come because the Saxons were before them I repeat nothing from Gyraldus Cambrensis Matthew Paris Hoveden Huntingdon or others who derided Monmouth till they were convinced by some Brittish Writers which themselves found besides all the Greek and Latin Authors cited by Virunnius Leland Sir John Price and divers others that I say nothing of the Scottish Chronicles or of the Learned man that shewed King
Consent of his Proceres assign them any Land or City or Castle for that it was against the Laws of his Kingdom prohibitus sum quod Proceres Regni dissuaderent c. Yet it may seem the Lords agreed to their setling in Thanet afterwards but the Commons Dissented so that they resolved to drive them out again and that in Common-Council or Parliament Concilium fecerunt cum Majoribus suis ut pacem disrumperent dixerunt Recedite à nobis c. My Author is old Nennius of Bangor He hath clear passages for Parliaments in that time and for their Power also As for Incest with his own Daughter Vortiger was first Corrected perhaps with the Iewish Discipline which was here also till the time of Henry the Second and St. Germane the Arch-Prelate came with the whole Convocation-House Cum omni Clero Britanniae Corripere Eum. Nennius saith that in a great Moot of Clergy and Laity he was so roughly handled that he rose up in a great Rage and Fled or at least sought how to Flye but he was Banned Maledictus est damnatus a beato Germano Afterwards Vortimer was chosen King 't is every where but after divers Victories he Dyed Poysoned as some thought by Vortiger He now Combineth with the Saxons and by their Power entreth the Scene again but with little Consent of the Britains and although he Acted a while yet he was Hissed off being odious to all till at length his Heart brake Nennius addeth that some said the Earth opened for him and St. Germane Writeth that his whole Family was Burnt from Heaven which was much ascribed to the Clergies Curse or Excommunication Which was in use among the Britains and that also upon their Princes of which we have many examples as of Teuder and Clotri for Homicide and Perjury and Hovel Glevissicg and Brochwell did hardly escape by a great Fine Iudicium Suffere non potuit of which Sir Henry Spelman in his Synods of Landaf It was then by much more heavy than of late Caesar observeth it among the Druids and in him it is Poena Gravissima adding also that such Persons were Abhorred by all as some Loathsome Disease and that they might have no Honour or Right of Law Neque iis petentibus Ius redditur And among St. Patricks Canons we find the Excommunicate excluded à Communione Mensa Missa Pace their Ceremonies in this seem a-kin to the Iewish Cherem nay to their Shammatha or St. Pauls Maranatha and it so continued among the Saxons also as we may see in the Laws of Canute making it Capital to protect or harbour any such But in the Confessors Acts when an Excommunicate fled to the Bishop for Absolution Eundo redeundo Pacem habeat else it seems they were as Out-Laws who might then be Killed by any that met them as the same Laws of Woolfshead in another Chapter Which may help us to Interpret those that speak of the Iews being Excommunicate nay and that also by Seculars in England of which in Matthew Paris and his Additaments but his Glossar rightly expresseth it by the University Phrase of Discommoning Townsmen which of old was much worse it seems than now After Vortiger Aurelius Ambrose à Convenientibus Britannis Convocato Regni Clero in Regem erectus est He might also be Inserted into Gildas for he dyed by Poyson if good Authors deceive us not At his Death a Comet like a Dragon and the Bards apply it to his Brother thence called Uther-Pendragon Florilegus addeth that he made two Dragons of Gold Offering one and carrying the other still before him whence the Dragon in our English Standard although some have asserted much of him they call St. George That which Westmonster or Polydore expresseth by Praecepit proceribus Regni Convenire Monmouth thus in Aurelius Iussit Clerum ac Populum submonere ad Aedictum ergo illius venerunt Pontifices Abbates ex uncquoque Ordine qui ei Subditi and again of Uther Convocato Regni Clero annuentibusque cunctis sublimatus est in Regem and again Communi Populorum Concilio This Uther-Pendragon is vouched and asserted in the famous Contest of Little Britains Subjection to Turon may it also allude to the Story of Brute of which Gratians Decrees and Matthew Paris ad An. 1199. Uther being Dead Convenerunt Pontifices cum Clero Regni Populo a Parliament agreed by all to Bury him Regio More in the Gyants Dance or Stonehenge which himself had gotten by Merlins help out of Ireland fixing it so near to Salisbury for a Monument of that Parliament which was thereabout Destroyed by the Saxons A Parliament I call it so I may In Nennius they are Seniores Vortigirini Regis but in Monmouth and those that follow him they are Principes Consules that is Comites Barones Cives called by the Kings Command Edict or Writ of Summons For Arthurs Parliaments it would be much Superfluous to produce more proof than what already is in Sir Iohn Price Cajus Leland or others that assert his History this I shall only add that in this of all we may Credit Monmouth who is so punctual in nothing as in vouching each County and City that made up his Parliaments Ex Diversis Provinciis proceres Brittonum Duces and among others Dux Doroberine Consules both of Counties and Cityes Boso Ridocensis id est Oxonefordiae Lot Consul Londonesiae c. And among Forreign Princes he Nameth the Kings of Ireland Island Godland Orcades Norway Denmark and others besides the twelve Peers of Gaul of whom also in divers other places that I speak not of the twelve Reguli which Brute found in Gaul nor was there a Prince of Note saith he citra Hispaniam who did not appear at his Summons which may be compared with that of K. Arthur among the Laws of the Confessor and in Horn as Authentick as Neubrigensis Come we to the Saxons what I cited before from the Mirror Tacitus Caesar or others may be fully asserted from their Histories I shall not insist upon Offa's Election although it be clear enough from his own Words ad Libertatis vestrae Tuitionem non meis meritis sed sola Liberalitate vestra unanimiter me convocastis and the Lives now Printed with Matthew Paris and his Henry the third mention divers if not all the Counties which made up K. Offa's Parliaments Nor will I spend time in Cuthred Beonerd or others Deposed by Parliament because the Monarchy was not yet so fully settled But in the Confessors Acts we find K. Ina Elected though by means of an Angel and the first Saxon Monarch of his Laws and Match with his Gaulish Walish Cambrian Queen before as also of his clear and full Parliaments in the Militia E're long we find a Parliament at Calcuth Conventus Pananglicus ad quem convenerunt omnes Principes tam Ecclesiastici quam seculares wherein by the King Arch-Bishop
the Militia For in such a Case the Sheriff or Bayliff shall not only force his Entry by the Posse-Comitatus into such a Castle on the suit of a Subject but it may also come so far that the said Fort or Castle may be beaten down without recovery And although it be said it shall be done by the Kings Command yet it is well known and seen by experience that it is and always was by Order of the Courts of Justice and for this Semain's Case in the fifth part of Reports may be very well added to the Comments on the First of Westminster By which we see how much the very Forts and Castles or Militia must be subject to the Courts of Iustice Not the King only but in and by his Courts especially the Parliament that may Command Controul and Over-rule all other Courts How tender the Law is in Case of Estate Forfeit by Alienation I have touched before much is to be added Nay in the worst and lowest Estates by Tenure of Will of which somewhat also before for a Fine Reasonable c. as by Copy where Alienation and Wast against the Custom with other Cases in the fourth part of Reports may Forfeit to the Lord but he cannot Out his Tenant at pleasure especially him that sweareth Fealty but the said Tenant may sue his Lord or bring his Action of Trespasse For Offices Forfeited by Bargain and Sale or Brocage the Statutes are clear and just To which may be added the Comments of Littletons Estates Conditional as also for Forfeitures of Conditions It is expresly provided by Act of Parliament that no Sheriff or any other Person do take or seize any mans Goods much less may he take his Lands for Treason or Felony until he be duly convicted or Attainted by Trial Confession or Outlawry upon pain to Forfeit double to the party grieved nor is this only in Richard the third but in the first great Charter and before it also as was touched before Among the Saxons none were Outlawed but for Capital crimes we find it often in the Mirror and in such the Out-law might be killed by any that met him as might any man Attainted of Premunire that vast Chaos of confusion till Queen Elizabeths Time I do not find any outlawry below Felony till about the Barons Wars and then it came not below an Action of Forceable Trespass Vi Armis But in the Common Pleas it came to lie upon Account Debt Detinue Covenant and other petty Actions which the Mirrour would pronounce a most great abuse But in Edw the third there was some amends in providing that none should kill an Out-law but a Sheriff only with lawful Authority Yet in inferiour Cases Land Issues might be sequestred in the Kings Hands till Appearance or Reversal Only in Treason and Felony it forfeiteth as much as Attainder by Judgment But it may be Pleades and Reversed divers ways And a Petty Misnomer or a misdate is ground enough to Reverse it by a Writ of Errour And of this the Books are full But Nimin's case is a criticism in Chronology One of the Sheriffs Returns was dated on the 8th of Iuly in the second and third of Phil. and Mary but it was declared there could be no such day but in the 2d and 4th year which was only between the 6th and 25th of Iuly yet this was enough to Reverse an Attainder of Treason by Writ of Errour And in Favour of Life our Law admitteth Pleas to Out-Lawries in Capitals there where in other Cases must be brought a formal Writ of Error I cannot deny but even by the common Law upon Indictment for Treasom or Felony the Goods and Chattels might be Inventored but not seized as Forfeit till Conviction Nor are Lands and Tenements Forfeit till Attainder by Judge And in case of Appeal which related no time that is only Forfeit which is possessed at the Iudgment But upon Indictment dating the crime the Forfeiture will reach to the crime committed although there be Alienation before Judgement But no Forfeiture before Conviction no seizure before Indictment And the Book of Assizes telleth us the Judges took away a Commission from one that under the great Seal had power to arrest and seize on Goods before Indictment And how tender our Law was in this for Estate it may be seen at large in Bracton and Fleta with the old Writ not only in them but in the Register also relating to the great Charter forbidding all Disseisin till Conviction Yet it requireth the Sheriff per visum suum legalium hominem to Apprise and Inventory all the Offenders Chattels but with a double Salvo both for safe keeping them and for this Security was to be given by the Bailiffs or the Township and for maintaining the person in Prison with all his necessary Family Salvo tamen eidem Capto familiae suae necessariae quamdiu fuerit in prisona Rationabili Esto verio suo Which was not only Meat but Cloathing c. as hath often been adjudged in Edward the third Henry the fourth and other Times See the third part of Institutes cap. 103. It will not be long I hope before God stirreth up our Governours to Reform the crying sins of this Kingdom and not only Gaolers in our oppressing grinding Prisons But the Heathen Moralist hath also told us that Divine wheels are also grinding and will grind to powder though they be slow in motion as unwilling to revenge It is true that Prisons should be by Law both safe and strait Custodies nor should they admit such wandring abroad as some mens Mony doth procure But although Recoveries on Record much lesse Discents do not bind men in Prison or conclude them for want of claim yet upon motion Prisoners may and ought to be brought to the Court in Suits or Actions against them in case of Judgement or where ever else they ought to be in person present And for this I may only referre to the Commentator on the continual claim and the Cases by him cited How unwilling our Law was to empair our Liberty was touched before in the Capias on Debt And although some latter Statutes do out-go our Common Law for Imprisonments yet it is still received for a general maxim in Law that Prisons should be Custodiae not Poenae And where ever any man is unjustly in Prison the Law affordeth him more ways of getting out than his Enemies had to get him in He may have an Habeas Corpus and he may have a Writ de Homine Replegiando He may have an Action of False Imprisonment And may found an Action on the Great Charter Or on it may cause his unjust friend to be Endicted And the Writ de Odio Atia was again revived though by Statute once it was forbidden And for these with Bayl by Judges or Justices Replevins by Sheriffs c. We have the Judgement of all the Judges on Articuli Cleri and the Comments on the great