as Bracton before cited Consensâ— communi totius Regni 3. Those Aides were given tam de tenentibus aliorum quam de tenentibus de Domino Rege in Capite levanda quo praetexta dictus Compotus de Auxiliis praedictis were as well for the Fees of the Tenants of the then Prior as for the Fees of the Prior himself which the Prior said would clearly appear to the Court by the Certificate of the Prior his Prodecâ—ssor in the time of H. 3. made to the Barons of the Exchequer so that the Tenants of the Prior did grant an Aid as well as the Prior himself and that in Parliament for as I have observed before Rot. Claus. 32 H. 3. m. 13. dorâ—o there was a Parliament then held 4. That in the Reign of H. 3. and preceding times when the Knights and Freeholders who held not of the King but other Lords did in the Commune Concilium or Parliament graâ—◠〈◊〉 Auâ—â—lium or Aid to the Crown the great Lord or Baron of the Fee of who 〈…〉 the Freeholders held was 〈◊〉 in the Exchequer to answer for 〈…〉 thereof under the title of his 〈◊〉 as the Bishop of every 〈◊〉 〈◊〉 till Queen Elizabeth's time was by Law chargeable for the coll 〈…〉 of 〈◊〉 granted by the Clergy within his Dâ—ocess yet certainly as the Bishop 〈◊〉 〈◊〉 any power to give for or tax his 〈◊〉 no more could or did any great Lord of the Fâ—â—â—ither jure t 〈…〉 or 〈◊〉 tâ—tionis charge or give away the 〈◊〉 of his free T 〈…〉 who were independent in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 solummodo 〈◊〉 this P 〈…〉 not well observed and understood 〈◊〉 late Authors has caused the 〈◊〉 about the T 〈…〉 〈◊〉 representing the 〈◊〉 in Parliament 5. 〈…〉 held of the King in Capite yet very considerable in number and all the Citizens and Burgesses should till 49 H. 3. either be totally excluded from being any part of the Generale Concilium Regni or Parliament or else by a Law of which there is not the least footsteps in History or Law were for so many Ages to be represented by the Tenants in Capite only in Parliament the transcendent Power of which Council in Conjunction with the King as Head thereof Sir Thomas Smith that great and learned man who was Secretary and Privy-Councellor to our famous Queen an old Parliament-man when he comes to write of the Parliament and its largeness of Power says thus In Comitiis Parliamentariis posita est omnis Augustae absolutae que potestatis vis quippe quemadmodum Robur virtus Angliae dieuntur in Acie residere Parliamentaria Comitia veteres leges jubent esse irritas novas indueunt praesentibus juxta ac futuris modum constituunt jura posseâ—siones hominum privatorum commutant spurios Natalibus restituunt Cultum divinum sanctioribus corroborant pondera mensuras variant incerti juris contreverâ—â—as dirimunt ubi nihil lege cautum fuit censum agunt Capitationes vectigalia indicunt delictorum gratiam faciunt afflictas Majorum sceleribus perditas familias erigunt vitae nâ—â—isque potestatem in cos obtinent quos ad hujusmodi disquisitiones Princeps advocaverat atque ut concludam breviter quiâ—quid in Centuriatis Comitiis aut in Tribunitiis Populus Romanus efficere potuisset 〈◊〉 omne in Comitiis Anglicanis tanquam in Coetu Principem populumque represent ante commode transigitur Interesse enim in illo conventu omnes intelligimur â—ujuâ—cunque amplitudinis status aut dignitatis Princepsve aut Plebs fuerit sive per se ipsum hoc fiat five per procuratorem nam omnibus peraeque gratum esse oportet quâ—â—quid ex Senatusconsulto Parliamentario profectum est 6. It is observable that the Prescription of Progenitores Regis in the Record of the Prior of Coventry tempore E. 3. did expresly extend to the Reign of H. 3. his great Grandfather and higher too so that I had good authority and warrant to say before that when the Burgesses of St. Albans in the Parliament 8 E. 2. affirmed That they and their Predecessors sicuâ— caeteri Burgenses de Regno as the rest of the Burgesses of the Kingdom had totis retroactis temporibus in all times past in the time of F. 1. Pregenitorum suorum and of His Progenitors sent Two Burgesses to every Parliament they had as well as other Boroughs of England sent Burgesses to the Generale Corailium or Parliament before mentioned in the 17th year of King John Grandfather to E. 1. at least and so by clear evidence before 49 H. 3. From the aforesaid Authorities and Reasons we may with good consequence conclude 1. That the People or Commons of England from the time of the Norman Conquest till 49 H. 3. were not represented in the Commune Concilium Regni or Parliamâ—nt by such only as held of the King in Capâ—â—e 2. And that the Commons or People 〈◊〉 〈◊〉 â—â—â—in to be represented by Knights Citizens Burgesses and Barons of the Cinque Ports in the said 40 H. 3. And now I shall subjoin some material Records relating to my former Discourâ—â— Inter Communia de Term. Trin. Anno 7 E. 2. Adhuc Recorda PJn nomine Poliarcâ—t Jesu Christi salvatoâ—is mundi totiusque Creature Creatoris cujus Divino Dominatui quique donatores debito servitio subnixe deserviunt cujus etiam omnipotentatui universi potentatus obsecundari examussim preproperant quia bonitas ejus bon 〈…〉 atis est incomprehensibilis miseratio inter minabilis dapsilitas bomtatis ineffabilis longanimitas quoque super pravorum nequitias quantitatis prosixitate cujusâ—ibet longior qui coâ—idiaâ—â—s admonitionibus religiosam conversationem duccntes monet ut pie Seâ—tando justitiae culturam non eam deseren dolinquant quin potius perseverabilt instantia in ejus cultura ut permaneant patâ—rno affectu hortatux qui nihilomâ—nus eadem affectione mandat peccatoâ—ibus ut resipiscant a suis iniquitatibus convertentes quia eorum execratut mortem ejus amoris stimulo fide suffultus cujus largifâ—ua miseratione Ego Cnut Rex totius Albionis Insule aliarum nationum plurimarum in Cathedra Regali promotus cum Consilio decreto Archiepiscoporum Episcoporum Abbatum Comitum aliorumque omnium fidelium eligi sanciend Atque perpeti stabilimento ab omnibus confirmandum ut Monasterium quod Biadricesworth Nuncupatur sit per omne evum Monachorum gregibus deputatum ad inhabitandum ab omni Dominatione omnium Episcoporum Comitatus illius funditus liberum ut in eo Domino servientes Monachi sine ulla inquietudine pro statu Regni Domini prevaleant precari Placuit etiam mihi hanc optionis electionem roborare privilegio isto in quo indere prccepi libertatis donum quod jam olim Edmundus Rex occidentalium SaxonnÌ„ largitus est suo equivoco pro nanciscenda ejus gratia mercede aeterna scilicet Edmundo Regi Martiri quod bone
THE ANTIENT RIGHT OF THE Commons of England ASSERTED OR A DISCOURSE Proving by Records and the best Historians that the Commons of England were ever an Essential part of Parliament By WILLIAM PETYT of the Inner-Temple Esq Non nulli taedio investigandae veritatis cullibet opiniâ—â— potius ignaâ—i succambunt quà m explorandâ veritati pertinaci diligentiâ perseverare volunt Min. Foelix Inter â—ericula veritatis libertatis 〈◊〉 〈◊〉 LONDON Printed for F. Smith T. Bassett J. Wright R. Chiswell and S. Heyrick 1680. To the Right Honourable Arthur Earl of ESSEX Viscount MALDON Baron Capell of HADHAM Lord Lieutenant of the County of HERTFORD one of his Majesties most Honourable Privy-Council and First Lord Commissioner of his Majesties Treasury MY LORD THere have been Authors of modern times who have in their Writings concerning the Government of this Kingdom published to the World That the Commons of England as now phrased were no part of the antient Commune Concilium or Parliament of this Nation before the forty ninth Year of H. 3. and then introduced by Rebellion A Position when seriously weighed equally wounds the Peerage of England since the same Authors say that there is no formal Summons of the Lords to Parliament found upon Record before that time After I had often considered so great a point and having often read of the freedom of this Nation that no Englishman could lose his right or property but by Law the Life and Soul of this so famous and so excellently constituted Government the best polity upon Earth which when united in all its parts by prudent Councils made always the people happy at home in Peace and the Crown ever Victorious abroad in War I did resolve to take pains to search if matters thus represented to the highest disadvantage and prejudice of the people of England were true or false which I have industriously and impartially endeavoured and hope with that clearness that will evidence to all unbiassed judgments the unsoundness of those Opinions When I had so done being unwilling my labour should be to my self alone and not to those who search after knowledge in these matters to disabuse and prevent others from building upon such mistaken and dangerous Foundations I thought it not unseasonable to publish this Discourse wherein there is no Record cited but in my opinion equally asserts the right of the Peers of this Kingdom as well as of the Commons and therefore have taken the boldness to send it into the World under your Lordships Protection whom I know to be a great Lover of Truth To which all mankind ought to pay Allegiance I should have had great satisfaction if before it had been put to the Press it might have received your Lordships judicious corrections and approbation whose knowledge and industry in venerable Antiquity and all other useful Learning is well known unto the World But this happiness I could not reasonably expect your Lordships time being so much taken up in the service of the Crown whereof your Lordship is so eminent and so great a Pillar as your Honourable Imployments both at home and abroad do sufficiently demonstrate I most humbly beg your Lordships Pardon for my presumption in this Dedication which fault I hope may be extenuated by the relation I have to your Lordship in my Profession and being deprived of other means publickly to shew my humble gratitude for the many favours your Lordship has been pleased to confer upon My Lord Your Lordships most humble most faithful and most obedient Servant W. Petyt THE PREFACE MY principal design in this following Discourse is impartially to vindicate the just honour of our English Parliament from the calumnies and reproches of some late Authors who have asserted 1. That an essential part of that Great Council viz. the Commons of England represented by the Knights Citizens and Burgesses in Parliament were introduced and began An. 49 H. 3. by Rebellion 2. That before that time the Commons were never admitted to have any Votes or share in the making of Laws for the Government of the Kingdom nor to any Communication in affairs of State To discover and refute the unsoundness of the second Position and that the contrary may appear to be true I shall before I come to answer the first consider the second and endeavour to prove that during the Brittish Saxon and Norman Governments the Freemen or Commons of England as now called and distinguished from the great Lords were pars essentialis constituens an essential and constituent part of the Wittena Gemot Commune Concilium Baronagium Angliae or Parliament in those Ages 1. Under the Brittish Government THE Brittons called their Commune Concilium or Parliament Kyfr-ythen then because their Laws were therein ordained and upon K. Lucius his Letter to Pope Elutherius to send him the Roman Laws the Pope who could not be ignorant of the constitution and frame of the Brittish Polity writes back to him Habetis penes vos in Regno utramque paginam ex illis Dei gratia per Concilium Regni vestri sume legem per illam Dei potentia vestrum rege Britanniae Regnum But what their Laws and particular Government were is very uncertain by reason that Scripta Patriae as Gildas sayes Scriptorumve Monumenta si quae fuerint aut ignibus hostium exusta aut Civium exulum classe longius deportata non comparent The Histories of our Country if there were any are not to be found being either burnt by the Enemy or carried beyond the Seas by the banished Brittons Yet this is certain and not to be denied that 〈◊〉 their elder time the People or Freemen had a great share in their publick Council and Government For Dion Cassius or Xipniline out of him in the Life of Severus assures us Apud hos i. e. Britannos populus magna ex parte principatum tenet 2. Under the Saxon Government IT cannot be doubted but that the Saxons who made themselves Masters of the Brittish Nation brought with them their Country Laws and Government and that the Commons were an essential and constituent part of their Commune Concilium Tacitus tells us De minoribus rebus Principes consultant de majoribus omnes ita tamen ut ea quoque quorum penes plebem arbitrium est apud Principes praetractentur After the Saxon Government became united and fixed under a sole Christian Monarch they still continued and kept their antient Wittena Gemots or Parliaments as now phrased wherein they made Laws and managed the great affairs of the King and Kingdom according to the Plat-form of their Ancestors Many Authorities might be given to evidence this I will instance in three or four 1. then We have that famous Parliament summoned by King Ethelbert An. 605. which my Author calls Commune Concilium tam Cleri quam populi 2. About the Year 712. King Ina assembled a great Council or Parliament wherein he
the Third had the assent of the Commons in Parliament to make them Laws Now the word Progenitors in the Statute must I conceive go higher than Ric. 1. for Bracton a Learned Judge who flourished in the time of Henry the Third and so by a reasonable computation of time may be supposed to have lived in the latter end of the Reign of Ric. 1. or beginning of King John's after he had declared to posterity that he had bent his mind ad vetera judicia perscrutanda diligenter non sine vigiliis labore and whatsoever he found Notatu dignum he reduced in unam summam perpetuae memoriae commendanda concludes this point thus Cum legis vigorem habeat quicquid de consilio de consensu Magnatum Reipublicae communi sponsione authoritate Regis sive Principis praecedente justè fuerit definitum approbatum And so just and excellent was the ballance of the Constitution of our legal Government in preventing any order or rank of the Subjects to impose upon or bind the rest without their common consent and in conserving as it were an universal liberty and property to every individual degree of men from being taken from them without their assent as the County Palatine of Chester ab antiquo were not subject to such Laws to which they did not consent for as well before the Conquest of England as after they had their Commune Concilium or Court of Parliament by authority of which the Barones Milites quamplures alii Rot. 44 H. 3. m. 1. dorso Barones liberi homines omnes alii fideles Rot. Pat. 3. E. 1. m. 6. or as the Supplication to H. 6. saith The Abbots Priors Clergy Barons Knights Esquires and Commonalty did with the consent of the Earl make or admit Laws within the same such as should be thought expedient and behoveful for the Weal of the Inheritors and inheritance of the said County and no Inheritors or Possessors within the said County were chargeable or liable or were bounden charged or hurt of their Bodies Liberties Franchises Lands Goods or Possessions unless the said County or Parliament had agreed unto it And I dare under submission affirm that neither this County Palatine nor Durham were ever subjugated to have their Estates given away at the good will and pleasure of the Earl or Bishop under any notion or fancy in those days of being their representatives in the Commune Concilium Regni or that being dependant Tenants their consents were included in their Lords assent and if the Commune Concilium Cestrense or Parliament was deduced from Records it would be of greater use to shew us as in a Mirror the Government of England in antient days than what I have yet seen published by any Author 3. That the Answer of the King to the Petition penned and made by all the Judges of the Land his Council in Parliament cannot be supposed to be grounded upon a modern usage of 59. years from the time of 49 H. 3. till then if the Tenants in Capite jure repraesentationis made the Parliament as some hold but was a Declaration of the ancient Custom and right of the Nation 4. That it was not in the power of all the Tenants in Capite of England or the greatest part who were the Petitioners though with the Kings consent to bind and oblige others or to make or alter a Law sine assensu Communitatis Regni who had votum consultivum and decisivum an Act of Authority and Jurisdiction as well in assenting to spiritual Laws as Temporal as may appear for an inâ—tance in their Declaration or Protestation to E. 3. in Parliament Que nul estatut ne Ordenance soit fait ne grante au Petition du Clergie si ne soit per assent de voz Communes ne que vous dites Communes ne soient obligez per nulles constitutions q'ils font pur lour avantage sanz assent de voz dites Communes Car eux ne veullent estre obligez nul de voz Estatuz ne Ordinances faitz sanz lour assent Fortescue cap. 8. pag. 40. tells us Sed non sic Angliae Statuta oriri possunt dum nedum Principis voluntate sed totius Regni assensu ipsa conduntur Et si Statuta licet tanta solennitate prudentia edita efficaciae tantae quantae conditorum cupiebat intentio non esse contingant Concito reformari ipsa possunt non sine Communitatis Procerum Regni illius assensu quali ipsa primitus emanarunt And that this was the antient Law and Right of the Kingdom appears by the answer of E. 1. an o 22. of his Reign to the Petition of the whole Clergy of England for the Clergy having given the King medietatem omnium bonorum tam temporalium quam spiritualium complaining that the Immunity of the Church laesa fuit violata petiit à Rege quosdam Articulos Rege jubente jussit enim Rex postquam votis ipsius paruerant in giving the Subsidy ut ipsi ab eo peterent remedia quae vellent Et petierunt imprimis ut Statutum de manu mortua quod in praejudicium Sanctae Matris Ecclesiae fuit editum deleretur Cui quidem Articulo respondit Rex quod idem Statutum de Consilio Magnatum suorum so phrased by the Historian fuerat editum ordinatum absque eorum Consilio non erat revocandum but a more certain authority tells us that the Statute was made per Commune Concilium Regni or Parliament as appears by Rot. Claus. 7 E. 1. m. 5. dorso Rot. Pat. 10 E. 1. m. 13. and then the Commons were unquestionably an essential part and joined in the making the Statute The SIXTH ARGUMENT From the form of penning of 〈◊〉 of Parliament and expressions in Records in 49 51 54 H. 3. where it is pretended the Commâ—ns first began to be a part of the Legislative Power which agree with the phrases of Records of Acts of Parliament before that time THE King writes to the Bishop of London and to the rest of the Bishops of the Province of Canterbury that his heart was wounded 〈…〉 to dolore that the Earl of Gloucester and other Rebels had by crafty perswasions circumvented pro 〈…〉 r Prince Edward ad partem suam proditoriâ— aâ—â—axeâ—unt proprii contemptu Sacramenâ— contra formam de nostro ejusdem silii nostri Praelatorum Magnatum Communitatis Regni nostri unanimi assensu voluntate nuper London provisam The King per le conseil l'assentement le Rei de Alemain de Countes de Baruns del Commun de la terre pardoned and released the Earl of Gloucester and all his Company c. And the King per le Conseil Passentement le Rei de Alemain les Cuntes de Barons le Commun de la terre pardoned and released the Londoners totes maneres de
Father William the first 3. That the Son as well as the Father had several times solemnly sworn to the inviolable observance of the Laws of St. Edward or of the Saxon Government 4. King Henry does not depend on the Normans that came in with his Father no it was upon the English Common Council or Parliament nor did he call them Vassels and Slaves but Amici Fideles mei naturales in them he fixt his only hope and assurance both for their Fidelity and Courage and believed that they would as indeed they did preserve and defend his Crown and Life against the great Power and Policy of his and the Kingdoms most bloudy Enemies who were ready to Invade both with a mighty Army it being then Prudentially and Politickly resolved unanimously in Parliament not to permit or suffer the Duke to land here but to fight him in his own Country which the English then did forty years after the coming in of William the first and at one Battle not only totally conquered and overthrew the Normans but took Robert their Duke Prisoner and thereby put a period to the dangers and fears of King Henry the first and in despite of the French Power set the Ducal Crown of Normandy upon the head of King Henry an English-man and after Robert had remained for some time in Prison at last to conclude the Catastrophe of his unhappy life he had his eyes burnt out of his head and so by a sad fate left all to the English King From all which Authorities and Reasons under correction it is sufficiently evidenced that in the Brittish Saxon and Norman Governments the Commons as we now phrase them had Votes and a Share in the making and enacting of Laws for the Government of the Kingdom and that they were an essential part of the Commune Concilium Regni Wittena Gemot or Parliament before and after the supposed Conquest by King William the First Having thus concluded my Preface I shall now diligently apply my self to discuss that grand point touching the introduction of the Commons into our great Council or Parliament as represented by the Knights Citizens and Burgesses being indeed the principal work I intended and was finished before this Preface the difficulty of which cannot be well judged of but by those who have undertaken subjects of like intricacy for I have at a great charge and expence of time and without any mans assistance or help out of the dark and neglected paths of Antiquity endeavoured to make truth publick and general and with submission I hope it will appear that I have rescued from the force and power of a dangerous growing errour the just and ancient rights and priviledges of our Ancestors in a matter of the highest moment and concern which is impartially debated in the ensuing Discourse a subject whereof to the best of my knowledge no Author hitherto hath so particularly treated A DISCOURSE Wherein is proved That the Commons of England were an essential part of the Parliament before the 49 th of Hen. 3. SEveral great and learned Authors of our Age having in their works and writings frequently published and asserted to the world this Position as an unquestionable truth That the Commons in Parliament as distinguished from the Lords compounded of Knights Citizens and Burgesses had their first birth and beginning by Rebellion An. 49 H. 3. and that too after the Battle of Lewes when the Barons had the King and Prince in their power as Prisoners and exercised Regal Authority in his name The consideration and consequents thereof raised in my mind a great desire seriously and impartially to enquire into so important a point of Antiquity and the better to satisfie both my own judgment and the judgments of some of my Friends I have run over many Records and Historians both Ancient and Modern in Print and Manuscript but cannot find any authority or reason to give a colour to so harsh an assertion I shall therefore under an humble submission to so eminent Antiquaries endeavour to disprove this notion of 49 H. 3. by these following Arguments 1. From the Claim and Prescription of the Borough of S t Albans in the Parliament of 8 E. 2. to send two Burgesses to all Parliaments sicut caeteri Burgenses Regni totis retroactis temporibus in the times of E. 1. and his Progenitors if so then in the time of King John Grandfather to E. 1. and so before H. 3. 2. From Records An o 15 o Johannis Regis wherein the Citizens and Burgesses not so numerous then as after and now together with the Earls Barons Magnates Angliae were to give Consilium Auxilium ad honorem Regis suum statum Regni who shortly after met at London Convocatum Parliamentum de toto Clero tota secta laicali and so within the express prescription of the Borough of St. Albans 3. From the solemn resolution and great judgment of both Lords and Commons in the Parliament of 40 E. 3. against the Pope That if King John had An o 14 o of his Reign which was three years before the granting of his Magna Charta made the Kingdom tributary to the Pope he had done it sanz lour assent which must be understood to be without the consent of the Lords and Commons and therefore void 4. From several Records inter alia de Annis 28 32 37 42 48 H. 3. mentioning Parliaments then held and their proceedings in some of which the word Commons is expresly mentioned as well as the Prelates and Magnates to be part of those Parliaments 5. From an act of Parliament 2 H. 5. that famous Prince where it is declared and admitted that the Commons of the Land were ever a part of the Parliament and so consequently were part of the Parliaments Annis 16 17 Johannis 28 32 37 42 48 H. 3. all within the prescription of the Borough of St. Albans 6. From the form of penning of Acts of Parliament and expressions in Records in 49 51 54 H. 3. when it is granted that the Commons were a part of the Legislative power which agree with the phrases of Records of Acts of Parliament before that time 7. From the defect and loss of the Parliament Rolls of H. 3. and E. 1. and from the universal silence of all Records and our antient Historians contemporary and succeeding 49 H. 3. till our days 8. From the various opinions of learned men in and since H. 8. time who never dreamed of any such origine nor was ever heard of till of late 9. From comparing of the ancient Generale Concilium or Parliament of Ireland instanced An o 38 H. 3. with ours in England wherein the Citizens and Burgesses were which was eleven years before the pretended beginning of the Commons in England The FIRST ARGUMENT From the claim and prescription of the Borough of St. Albans in the Parliament of E. 2. to send two Burgesses to all Parliaments sicut caeteri Burgenses
she sends Writs in the Kings name directed Archiepiscopis Episcopis Abbatibus Prioribus Comitibus Baronibus Militibus liberis Cominibus Civibus Burgensibus terrae s 〈…〉 Hiberniae telling them that mittimus fratrem Nicholaum de Sancto Neoto fratrem Hospiâ—â—i Sancti Johannis Jerusalem in Anglia ad parses Hiberniae ad exponendum vobis together with I. Fitz Geffery the Kings Justice the State of his Land of Vascony endangered by the hostile invasion of the King of Castile qui nullo jure sed potentia sua consisus terram nostram Vasconiae per ipsius fortitudinem à manibus nostris auferre à Dominio Regni Angliae segregare proponit And therefore universitatem vestram quanta possumus affectione rogantes quatenus nos jura nostra totaliter indefensa non deserentes nobis in tanto periculo quantumcunque poteritis de Gente pecunia subveniatis which would turn to their everlasting honour concluding his nostris angustiis taliter compatientes quod nos baeredes nostri vobis haeredibus vestris sumus non immerito obligati Teste Regina R. Comite Cornubiae apud Windesor 17 o Die Februarii per Reginam The other Writ somewhat varies being a Commission touching the Chief Justice Fitz Geffery to be as an Assistant or Co-commissioner with Father Nicholas to hold the Parliament to declare to them the State of Gascony pericula nobis imminentia ad tractandum vobiscum super auxilio nobis faciendo against the King of Castile desiring they would give Faith to what the Chief Justice should say to them thereupon Rot. Pat. 5 E. 1. m. 13. we read Rex Archiepiscopis Episcopis Abbatibus Prioribus Comitibus Baronibus Militibus omnibus aliis Anglicis de terra Hiberniae c. vobis mandamus quod ad certos dies quos ad hoc provideritis videlicet citra Festum Nativitatis beatae Mariae Virginis in aliquibus locis opportunis conveniatis diligentem tractatum inter vos habeatis utrum fuerit praejudicio vestri libertatum consuetudinum vestrarum that the meer Irish should use and enjoy the same Laws and Customs in common as the English there and to send their Judgment and Counsel under the Seal of the Justice of Ireland And in the twentieth Year of this King Magnates probi homines Terrae Hiberniae quint amdecimam partem de bonis catallis suis concesserunt gratiose to the King which certainly was done in the Generale Concilium or Parliament and that the general phrase probi homines did include and comprehend the Citizens and Burgesses to be part of that General Council for Rot. Claus. 7 H. 3. m. 7. dorso the Citizens of Dublin are called Probi homines nostri Dublyn From hence may be observed 1. That by the Patent Rolls of 38 H. 3. the Citizens and Burgesses were summoned to meet at the great Council or Parliament as well as the Prelates Earls Barons Knights and Free-holders and equally desired to give the King a Subsidy of men and money 2. That though in the Writ of E. 1. the Citizens and Burgesses are not mentioned eo nomine the phrases of directions in Writs being in those Ages very various sometimes more general and sometimes more particular yet the words omnibus aliis Anglicis after Baronibus Militibus must comprehend the Citizens and Burgesses who were to meet and diligently to treat with the Archbishops Bishops Abbots Priors Earls Barons and Knights and Freeholders whether it would be in prejudice of their Liberties and Customs if the meer Irish should enjoy the same Laws and Customs as they of the English extraction did and they were to join in giving their judgment and counsel with the rest of the Parliament And reason it self speaks it since the admission of the meer Irish into equal priviledges and rights with themselves in their Cities and Towns would be of so great a consequence to them for upon the Kings granting by Charters to several Irish Families the benefit of the English Laws great disputes arose so that Rot. Claus. 10 E. 2. m. 28. intus upon a Petition to the King he granted that semel in anno teneâ—tur Parliamentum to redress their grievances touching the Irish and English Laws and so the word Parliamentum ascertains what those Councils were in the Patent Rolls of 38 H. 3. and 5 E. 1. before-mentioned And now I will close my Arguments declaring under the good favour of so eminently learned Authors that their resolves and opinions which they have published to the World that the inception and original Election of Knights Citizens and Burgesses or the admission of the Commons of England as now phrased into Parliament by Rebellion and Treason Anno 49 H. 3. are not at all satisfactory and convincing in my judgment unless they give more certain and greater testimonials than yet I have met with and answer these few Records against their so severe Position A Position believe me that like a tempestuous Whirlwind not only rends off and dismembers an essential branch but shakes the very Root of the right and honour of our English Parliament and equally wounds both Lords and Commons because these learned Authors themselves do agree that there is not yet discovered any formal Summons of the great Lords no more than of the Commons to any Parliament before the said 49 H. 3. And here I must beg the favour of the Reader of adding a supplemental Argument which at first I confess was not intended and it is this If in the General Councils or in our present Dialect Parliaments for instance 1. Of France 2. Spain 3. Portugal 4. Denmark 5. Sweden and 6. Scotland the Cities and great Towns or Boroughs have from time immemorable both de jure and de facto had their Delegates or Representatives Upon what authority or reason can it be believed that so universal a Northern Custom or Law did not obtain and was never practised in England before 49 H. 3 1. FOR France we find their Conventus ordinum or L'assemblie des Estates consisted de Sacerdotio Nobilitate plebe of the Clergy Nobility and Commons this is evident by the Parliament Roll 9 H. 5. which takes notice of the peace made between England and France that the same was confirmed in France per tres Status regni viz. Praelatorum Cleri necnon Procerum Nobilium ac etiam Civium Burgensium Civitatum Villarum Communitatum dicti Regni Francorum ipsi tres Status eandem pacem omnia singula contenta in eadem APPROBARUNT LAUDARUNT ACCEPTARUNT AUCTORIZARUNT It seems by this that the French Kings were not so despotical and absolute by the fundamental Laws of that Kingdom as their Successors have by acts of power since made themselves 2. In Spain their Curia or Cortes del Reyno is compounded as Dr. Heylin cites out of the
qui inter alios Principes orbis terrae Catholicum se exhibet Romanae Ecclesiae devotum jura sua libertates consuetudines leges praedictas absque diminutione inquietudine pacifice possidere ac illibata persistere benignius permittatis In cujus rei testimonium Sigilla tam pro nobis quam pro tota Communitate praedicti Regni Angliae praesentibus sunt appensa Datis actis Lincolniae Anno Dom. 1301. 2. The second is the Letter to the Pope made at the Parliament 17 E. 3. touching Provisions Quod Rex tota Nobilitas Regni pati noluit c. thus translated whereby the phrase Nobilitas Regni in the Historian will be explained TO the most holy Father in God Lord Clement by the grace of God of the holy Church of Rome and of the Universal Church Chief and high Bishop His humble and devout Children The Princes Dukes Earls Barons Knights Citizens and Burgesses and all the Communaltie of the Realm of England assembled at a Parliament holden at Westm. the 15 th day of May last past c. In Witness whereof we have hereunto set our Seals Given in the full Parliament at Westm. on the eighteenth Day of May Anno Dom. 1343. And indeed the Commons were so highly incensed that the Parliament Roll of this Year tells us that La dite Commune ne le poet ne le 〈…〉 t plus endurere those strange oppressions of the Pope and Provisors So that the Parliament of 24 H. 8. after great debate and consideration and a diligent search and inspection of the Antient Records of the Kingdom did ground their Statute amongst others upon these great Authorities the Statute saith Whereas the King his most noble Progenitors and the Nobility and Commons of the said Realm at divers and sundry Parliaments as well in the time of King Edw. 1. 〈◊〉 3. R. 2. H. 4. and other noble 〈◊〉 of this Realm made sundâ—â— Or 〈…〉 s Laws Statutes and p 〈…〉 for the entire and sure 〈…〉 tion of the Prerogative Lib 〈…〉 and preheminencâ—â— of th 〈…〉 〈◊〉 Imperial Crown of this Realm and of the Jurisdiction Spiritual and Temporal of the same to keep it from the annoyance as well of the See of Rome as from the authority of other Foreign Potentates attempting the diminution and violation thereof as often and from time to time as any such annoyance or attempt might be known or espied Pulton's Stat. 24 H. 8. c. 12. But to conclude the point of the Various Lections Certainly the different and great variety of words and phrases by which both the antient Historians and Records have in their several Ages and Times expressed and denoted the Communia Concilia Regni or Parliaments as now called and their constituent parts being not well observed and considered by most of our late English Authors who understood them as if they had signified what afterwards they did and now do have imposed on our Historical Faiths and propagated to posterity many palpable and gross errors whereby great and unkind clashings and diversities of opinions as well amongst learned men as others have had their source and spring nay even between Prince and People THE General Conclusion MY only aim and endeavour in this Discourse hath been from publick Records private Manuscripts and the best Historians to search out and discover truth and to assert the just honour of our worthy and famous Ancestors Commoners of England as now phrased great maintainers of the interest and dignity of the King and Kingdom and with submission to better Judgment I hope I have plainly proved 1. That the Freemen or Commons of England were an essential and constituent part of the Saxon Wittena Gemott or Parliament 2. That they so continued in the times of W. 1. W. 2. and H. 1. which last being an Englishman by way of Charter restored and confirmed the Laws of Edward the Confessor as his Father William 1. as well by his Magna Charta or Great Charter as by his Oaths had before done both when he was Crowned and also at Berkhamstead in the seventh Year of his Reign 3. And though the Rolls of Parliament in the succeeding Kings Reigns till E. 2. be lost or not found so as we are at a loss as to the several Orders of Parliament yet by what has been deduced from other Records before cited it is evident I conceive that the Citizens and Burgesses were a part of the Parliament Anno 16. of King John and so had not their beginning by rebellion Anno 49 H. 3. And therefore I may with good reason and warranty conclude That our Ancestors the Commons of England the Knights Gentlemen Freeholders Citizens and Burgesses of a great and mighty Nation were very far from being in former times such Vassals and Slaves or so abject poor and inconsiderable as the absurd and malitious ignorance and falsities of late Writers have been pleased to make and represent them especially the Author of the Grand Freeholders Iâ—quest and Mr. James Howel as if they were only Beasts of carriage and burden ordained to be taxed and tâ—lliâ—â—ed and have their Lives Estates and Liberties given away and disposed of without their own assents under a novel opinion and conceit that they were no part of the Commune Concilium Regni or Parliament before 49 H. 3. Perlege quae Regni clarissima Conciliorum Sunt Monumenta aliter nil praeter somnia cernis Appendix AFter I had compleated the foregoing Arguments a material Objection was by some of my Friends offered me which if not cleared in this discourse might in their judgment give a colour and pretence for a belief of an Opinion which is this That the Commons or people of England were from the time of the Norman Conquest represented by such as held of thâ— K 〈…〉 〈◊〉 Capite until 49 H. 3. and 〈◊〉 by two 〈◊〉 for each County and certain Burgesses for several Burroughs and Barons for the Cinque Ports Having before laid down a clear and plain distinction between Barones Regis and Barones Regni I shall therefore now distinguish upon the phrase Milites libere â—enenâ—es 1. Milites libere tenâ—ntes qui de Rege tenent in Capite 2. Milites libere tenentes de Regno The first Distinction I thus prove Rot. Pal. 2. Johannis m. 9. Rex dilecâ—is fidelibus 〈…〉 s Baronibus Militibus libere tenentibus qui de eo tenent in Hi 〈…〉 rnia Rot. Claus. 19 H. 3. m. 7. 8. dorso Re◠〈◊〉 〈◊〉 Sciatis quod Ar 〈…〉 〈◊〉 Aâ—baâ—es Priores C 〈…〉 〈◊〉 〈◊〉 omâ—â—s alii de Regno qui de nobiâ—â—â—nent in Capite spontanea 〈◊〉 〈◊〉 〈◊〉 consuetudine con 〈…〉 〈◊〉 〈◊〉 〈…〉 lium ad magna neâ—â—tia 〈◊〉 eâ—pedienda Rot. Claus. 26 H 3. m. 7. dorso Rex 〈…〉 omili Norhamptoniae praecipimus tâ—â—i 〈◊〉 alias praecipimus quâ—d 〈◊〉 facias Archiepi 〈…〉