him the Imperial Crown of England For Robert Steward first King of Scotland of that Family lived in concubinate with Elizabeth Mure and by her had three Sons John Robert and Alexander afterwards he Married Eufame Daughter to the Earl of Ross and after was Crowned King of Scotland He had by her Walter Earl of Athol and David Earl of Straherne When Eufame his Wife dyed he Married Elizabeth Mure. After that by one Act of Parliament he made them first Noble that is to say John Earl of Carrick Robert Earl of Menteith and Alexander Earl of Buchquhane And shortly after by another Parliament he limited the Crown in Tail Successively to John Robert and Alexander his Children by Elizabeth Mure in Concubinate and after to the Children of Elizabeth Ross his Legitimate Children who are to this day in their issue by this limitation by authority of an Act of Parliament in Scotland barr'd from the Crown and we hope ever will be by the continuance of the Line of our most Gracious King For note that though a subsequent Marriage by the civil Law which is the Law of Scotland in such cases doth Legitimate the Children born before Marriage of a Concubine yet it is with this exception that they shall not be Legitimated to the prejudice of Children born afterwards in Marriage and before the Marriage of the Concubine Besides the reason of the Civil Law in Legitimating the Children upon a subsequent Marriage is this viz. a presumption that they were begotten affectu maritali which presumption fails where the man proceeds to Marry another woman and abandons or neglects his Concubine But I desire these Gentlemen that are so unwilling to be safe in their Religion which I believe is most dear unto them That if any Law should exceed the declared measures of the Legislative authority though in such Case they may have leave to doubt of the lawfulness of such a Law yet if it be not against any express Law of God they will upon a little consideration determin it lawful if it be necessary to the Common-weal for that nothing can be the concerns of men united in any Polity but may be govern'd and ordered by the Laws of their Legislature for publick good for by the reason of all political societies For further satisfaction of the lawfulness of the bill of exclusion See a Book called The great and weighty Consideration considered there is a submission made of all Rights especially of the Common Rights of that community to the Government of its own Laws But all this and a hundred times as much will not satisfy some Gentlemen of the lawfulness of our Government the extent of the Legislative power of Parliaments since they have entertained a Notion that Monarchy is jure divino unalterable in its descent by any Law of man for that it is subject to none That all Kings are alike absolute that their Will is a Law to all their Subjects That Parliaments the states of the Realm in their Conventions can be no more than the Monarcks Ministers acting under and by his appointment which he may exauctorate and turn out of Office when he pleaseth For there can be say they under the Sun no obliging Authority but that of Kings to whom God hath given a plenitude of power and what is derived from them That this Divine Absoluteness may Govern and exercise Royal power immensely and that it is subject to nor to be abated or restrained by any humane inventions or contrivances of men however necessary and convenient Kings have thought them in former Ages by such methods and such offices and Officers of which number the States of the Realm may be or not be as Kings shall please as they shall by their absolute Will order or appoint Our Parliaments say they are Rebellious and an Usurpation upon the unbounded Power of Kings which belongs to every King as such jure ordinario and by Divine institution That a mixt Monarchy as ours is is an Anarchy and that we are at present without a Government at least such as we ought to have and which God hath appointed and ordained for us That we by adhering to the present Government are Rebels to God Almighty and the Kings unlimited Power and Authority under him which no humane constitution no not the Will and Pleasure of Kings themselves can limit or restrain For that jura ordinaria divina non recipiunt modum That the Legislative Power is solely in the King and that the business of a Parliament if they would think of being only what they ought to be is only to declare on the behalf of themselves and the people that send them for that purpose certainly the obedience that is due from them to such Laws as the K. shall make and that they may be laid aside wholly when he pleaseth And after all this what matter 's it with them what we say our Government is hath been or where the Legislative Authority of the Nation is placed or how used But I desire these Gentlemen to consider how they come to these Notions upon what reason they are grounded How a Government established by God and Nature for all Mankind should remain a secret to all the wise good just and peaceable men of all Ages That Kings should not before this have understood their Authority when no pretences are omitted for encrease of power and enlargement of Empire I desire them to consider that this secret was not discovered to the World before the last Age and was a forerunner of our late unnatural War and is now again revived by the republishing of Sir Robert Filmers Books since the Discovery of the Popish Plot. I wish they would consider that the reasons ought to be as clear and evident as Demonstration that will warrant them to discost from the sense of all Mankind in a matter of such weight and moment That to mistake with confidence and overweening in this matter will be an unpardonable affront to the Common sense of Mankind and the greatest Violation of the Laws of modesty I desire that they would consider and rate the mischiefs that will certainly ensue upon this opinion and whether a probable reason can therefore support it That they would throughly weigh ponder and examine the Reasons of these bold and new Dogmata For their enquiries ought to be in proportion diligent and strict as the matter is of moment and if they are not their error and mistake will be very culpable and the sin of the error aggravated to the measure of the mischief which it produceth and occasioneth Where is the Charter of Kings from God Almighty to be read or found for nothing but the declared Will of God can warrant us to destroy our Government or to give up the Rights and Liberties of our people If they are lawful I am sure it is villany to betray them since all political Societies are framed that all may assist the Common Rights of
pleaded in Bar upon which the Defendant will be certainly relieved in Chancery may notwithstanding it hath not heretofore be hereafter allowed in our Law-Courts we should be in a great measure restored to our easie expedite cheap and certain Justice which the Methods of our Common Law-Courts hath most excellently provided until a Parliament sometime or other may consider whether it be not fit to take it quite down by inabling Courts of Law to do true Right in all Causes that shall come before them For nothing renders the Chancery tolerable but the mo exemplary Virtue and Great Endowments of our present Lord Chancellor in which he is not like to have a Successor But to return to the Curia Regis it was not only the great Judicature of the Nation formally but it was also materially our Parliament too That this Curia Regis was not without any more the Parliament of these times is evident first that the Curia Regis was summoned by a general Writ of Summons directed to the Sheriffs in this Form viz. Rex Vicecomiti Northamptoniae c. praecipimus tibi quod summoneri facias Archiepiscopos Episcopos Comites Barones Abbates Priores Milites Liberos homines qui de nobis tenent in Capite c. Rot. Claus 26 H. 3 M. 7. Dorso This must necessarily be this Curia Regis in Distinction to a Parliament For that in the Grand Charter of King John made in the last year of his Reign it was granted that Ad habendum Commune Concilium Regni de auxilio assidendo aliter quà m in tribus praedictis casibus i. e. Those cases of Aid to make the eldest Son a Knight to marry the eldest Daughter and of Ransom and de Scutagiis assidendis faciemus summoneri Archiepiscopos Episcopos Abbates Comites majores Barones Regni sigillatim per Literas nostras Et praeterea faciemus summoneri in generali per Vicecomites Ballivos nostros omnes alios qui in capite tenent de nobis At present we make no other use of this Grand Charter than to prove it a distinctive mark of a Parliament where the Summons are personal to the Bishops Earls and the greater Barons This Charter of King Johns declares the ancient usage of summoning the greater Barons by special Summons to them severally directed for that the Kings before him as Sir Henry Spelman in his Glossary p. 80. Propter crebra bella simultates quas aliquando habuêre cum his ipsis majoribus suis Baronibus alios etiam eorum interdum omitterent aegrè hoc ferentes Proceres Johannem adegêre sub magno sigillo Angliae pacisci ut Archiepiscopos Episcopos Comites majores Barones Regni sigillatim per Literas summoneri faceret By which it was provided that all the Barons should have pro more Summons to the Parliament that non of those great Barons should want his several Summons and they had anciently several Summons for in a general Summons no body was excluded By which it doth appear that the Council at Northampton wherein Thomas of Becket was brought in judgment was a Parliament and not the Curia Regis for that the Bishops had their several Writs of Summons which appears in that Fitz Stephens tells us as matter of observation that Thomas of Canterbury had not his Writ of Summons but was cited as a Criminal to answer which we before observed And this was but necessary that when the Tenents in capite or Barons which principally at least made the Parliament were to be consulted about some arduous Affairs that they should have notice and a solemn intimation thereof and their presence required and enjoyned by Writs to them particularly and personally directed Besides that it was agreeable to all the forms of Government then in use to have their ordinary and extraordinary Council For Omnes Germanicae Originis Reges atque Imperatores duplici Concilio antiquitùs utebantur altero statario qui Senatus dicitur ad res quotidianas altero evocato concilium aut conventus ordinum ad res momenti majoris as Grotius assures us Neither can it be denied by any man of modesty who hath heard any thing of the state of our Government before the Conquest and that knows that many ancient Burroughs send Burgesses to Parliament by Prescription and will consider the Records produced by Mr. Petit in his very learned and elaborate Book called The Ancient Right of the Commons of England to prove the Right of ancient Burroughs to send Members to Parliament who represent them but that such though not Suiters to the Curia Regis were Members de jure of the great Council of Parliament But the truth is they are not mentioned in any Record or History of any Parliament from the beginning of the Conquerours Reign to the end of Henry 3. as a distinct part of the Parliament of England their Numbers and Qualities were little and mean of no consideration in comparison to that great Body of the Baronage that constituted our Parliaments in that time but our Parliaments seem by the style used in Histories and Records to be onely the Baronage of England William the First in the fourth year of his Reign Consilio Baronum suorum saith Hoveden pag. 343. fecit summoneri per universos Consulatus Angliae Anglos nobiles sapientes sua lege eruditos ut eorum jura consuetudines ab ipsis audiret Those who were returned shewed what the Customs of the Kingdom were which with the assent of the same Barons were for the most part confirmed in that Assembly which was a Parliament of that time saith Mr. Selden Titles of Honour pag. 701. Amongst the Laws of Hen. 1. published by Mr. Abraham Whelock cap. 2. I find thus Forestas communi consensu Baronum in manu mea retinui sicut pater meus eas habuit And after Lagam Regis Edwardi vobis reddo cum illis emendationibus quibus pater meus emendavit consilio Baronum suorum The Parliament is styled Commune Concilium gentis Anglorum and at the same time Commune Concilium Baronum and also Clerus Populus Matth. Paris fol. 52 53 54. And this is sometimes called Communitas for that it represents the whole people and involves their consent Which appears by 48 H. 3. Pars unica M. 8. D. Haec est forma pacis à Domino Rege Domino Edwardo filio suo Praelatis Proceribus omnibus Communitate Regni Angliae communiter concorditer approbata And that Communitas Regni hath no other sense than commune concilium Regni and used as a comprehensive term of them that made it is evident for that it is said in the second Record Si videntur communitati Praelatorum Baronum And again Per consilium communitatis Praelatorum Baronum Further Magnates Vniversitas Regni sometimes used for the Parliament Matth Paris 659,666 And after King John's Charter wherein it was
like this was before attempted by King John by this Writ of King John the like of which is not found Rex vicecomiti Oxoniae salutem praecipimus tibi quod omnes milites Ballivae tuae qui summoniti fuerant esse apud Oxoniam ad nos à die omnium Sanctorum in 15 dies venire facias cum armis suis corpora vero Baronum sive Armis singulariter 4 discretos milites de comitatu tuo illuc venire facias ad nos ad eundem Terminum ad loquendum nobiscum de Negotiis Regni nostri teste meipso apud Written 11 die Novembris Dors Claus 15. Johannis Regis Part 2. M. 7. But that Hen. 3. in that Parliament had some notable Expedient for the Establishment of the publick Peace and Quiet His Hopes and Desires of accomplishng it will appear by the Stile of the fore-recited Writ if compared with another Writ of Summons in a Cursory Form in the 26th Year of his Reign which was thus Henricus c. Venerabili in Christo Patri Waltero Eboracensi Archiepiscopo salutem mandamus vobis qualenus sicut honorem nostrum pariter vestrum diligitis in fide qua Nobis tenemini omnibus aliis negotiis omissis sitis ad nos apud London à die Sancti Hillani in 14 dies ad tractandum nobiscum una cum caeteris magnatibus nostris statum nostrum totius Regni nostri specialiter tangentibus hoc nullatenus omittatis But shortly to deduce the History of this Change which is but conjectural under the Authority of Mr. Selden in which nothing is certain but that the Bishops continued in the Change of the Baronage in the same State of Greatness mentioned the same Order had their Writs of Summons continued to them as before and though many of the Regular Barons were after omitted to be summoned to Parliament yet not one Bishop ever wanted his Summons This Discrimination shews That they were now Barons by Writ as the Lay Barons were and for the same Reason that is because Tenures did not now make them Barons But such only were so who had the King's Writs sent to them of Summons to Parliament So that the Bishops are not now to be reckoned Barones feudales or Barons by Tenure but Barones rescriptitii as all Barons at this day except those by Patent which are so without any respect to Tenure The Feudal Baronage as we said was as large and as numerous as the Tenures by Knights Service in Chief which were capable of being multiplyed several ways for every part of the Fee however divided the Services reserved upon that Fee that were entire and indivisible were to be performed by the several Proprietors of the several parts of the divided Fee The Feudal Baronies besides were ambulatory not fixed to Families but assignable as Estates and passed with the Lands Who sees not that by this Constitution and Nature of Baronage a great many mean persons not agreeable to that high Order must be entitled to it and so in truth it happen'd And hereupon a Distinction was made first between Barones Majores Barones Minores The Barones minores soon lost the Title of Barons altogether This is conjectured by Mr. Selden to be before the latter end of King John's Reign and their legal Stile became Milites or Libere Tenentes which some upon a mistake anticipating the Change of the Government made in H. 3. time think when they meet with Milites or Libere Tenentes in Parliament they have found Knights of the Shire chosen for Representatives in Parliament And if they reteined the Name and Stile of Barons it was now but abusively applyed to them for their Baronies were in Truth estimable but as Knights Fees only and of this sort of Barons there remains some to this day This appears by a Passage in the grand Charter of King John made in the latter end of his Reign as it is in Mat. Paris 343. Ad habendum commune concilium Regni de auxilio assidendo aliter quam in tribus casibus praedict these three Cases of Aid to make the Eldest Son a Knight of Aid to marry the Eldest Daughter and Aid of Ransome are understood Heir as is plain by the Charter Et de scutagiis assidendis faciemus summoneri Archiepiscopos Episcopos Abbates Comites majores Barones Angliae sigillatim per literas nostras Et praeterea faciemus summoneri in generali omnes alios qui in Capite tenent This was one Step to remove these Barones Minores from the Dignity of Barons which by H. 3. were quite discharged and never appeared after in Parliaments except chosen Knights of the Shire But because I find this great Charter of King John not well understood by several considerable Writers nor by Mr. Selden explained I will offer my Thoughts and the rather because it is not impertinent to our present purpose The first part to which the part before-recited doth refer is thus Nullum scutagium vel auxilium ponam in regno nostro nisi per commune concilium Regni nostri nisi ad corpus redimendum ad primogenitum filium nostrum militem faciendum ad primogenitam filiam nostram semel maritandum ad hoc non fiet nisi rationabile auxilium and then follows ad habendum Concilium Regni aliter quam in tribus casibus praedictis scutagiis assidendis c. I conceive that by the first Commune Concilium he means the Curia Regis and that he did grant that out of that Court he would not impose Escuage or aid upon his Tenants except it were those three Cases of Aid mentioned For Escuage was then and after assessed in that Court and that properly as being due by their Tenure only the Opportionment there was to be made which was a proper Office for the King's Tenents amongst themselves until the Statute of 34 E. 1. de Tallagio non concedendo in which it was provided that no Tallage or Aid shall be put or levied without the Will and Assent of the Archbishops Bishops Earls Barons Knights Burgesses and other Free Commons of the Realm but for all matters other than those three mentioned Aids and Escuage which were due by Tenure it should be done by that Commune Concilium that is his Parliament and he there declares how he would have it summoned as to his Baronage who in that part of his Charter were to receive their Satisfaction and for the Liberties of sending Burgesses to Parliament they are likewise confirmed in the same Charter and therein provided for So that I am persuaded that the modus Parliamenti in King John's Time was in the said Charter declared It was probable that before this Charter there was some Law to declare who those Majores Barones were and who those Tenants in Chief were that should be accounted now no longer Barons and after the Tenants in chief had lost the Honor of a particular