of the King I take leave to observe that the Right of Precedency from within the Reign of H. 3. nay though before the 49th is no way inconsistent with the Belief that many Lords who had Right till a Settlement then made were left out afterwards at the King's Pleasure that is had no special Summons yet tbey could not be denied their Right of being there in Representation Be it that the Heires of Bigod and himself Jan. Angl. faciâ—s nova p. 257. 262. were Tenants in chief which as I thought at least I shew'd formerly could not since the 49th have Right to come to Parliament quatenus Tenants in chief yet when any of the Heirs came upon particular Summons to Parliament that is 6 R. 2. cap. 4. All Singular Persons and Commonalties which shall from henceforth have the Summons of Parliament c. the King 's Calling them out as Singular Persons they were to come as Tenants in Capite in the manner as they be bounden and have been of old time accustomed And they that refused shouldbe amerc'd as is the Penalty By Manner is meant 1. in the same Quality Lords as Lords and 2. in that Degree of the same Quality which of old time had been accustomed 3. The Manner also implies the manner of enjoying any Power in Parliament Thus the Lords were of old accustomed to enjoy the ordinary Power in a Manner properly Judicial and that the supream Manner too Whereas the Commons had of that only what was needful to maintain their Priviledges as to the Legislature the Manner was the same Neither was above or could give Law to the other But in the judicial Power in Parliament the Commoners were no more to be joyned with the Lords than with the Tenants in Chief in the King 's ordinary Court out of it Vid. infra in the body of the Book p. since the same Curia Regis delegated from the Lords and answering to that which was pro more us'd to exercise that Power both in Parliament and out of it so that wherever they sate they were in the same Court The Commons could not exercise this Power with them out of Parliament therefore not in it Some will say that no more is intended by this Statute than that every one who receives Summons must come as was his Duty and had been of old Whereas 't is certain they who did not come as they were bound were amerceable before at the Common Law nor was it likely that the King wanted a Law to make good that Prerogative which to be sure he had over his Tenants by their very Tenures and could seize upon their Lands for Contempt of his lawful Power as the Bishops were sometimes threatned Vid. 4. â—ust Inde se capiet ad Baronias su 8. And this is enough against this Author since he makes the King's Tenants in Capite to have been all that came to Parliament even by Representation till the 8th of Hen. 6. Against Mr. Petyt p. 42. which 't is his setled Design to prove though sometimes he contradicts himself and yields that their Tenants by Knights Service came too Besides the genuine Import of the Manner leads me to this sense especially as 't is joyned with Bounden For he who was a Commmoner till the Summons was not bound to come as a Lord nay was not a Lord when he came As appears by the Writs to the Lords Assistants in the same Form with those which the Lords have So that the Statute in my sense is manifestly in Affirmance of the Common Law I shall lay at the Feet of the Lords my Sentiments in relation to their House either as I agree with or oppose one to whom that High Order probably will not think themselves much obliged I shake Hands with him Against Petyt p. 228. and agree that King Hen. 3. a little before his Death began to leave out such Earls and Barons as he pleased but I believe not this upon his Ground which is as if it were meerly from Royal Authority that is the Prerogative which that King had from of Old p. 229. without the Actual Consent of the People For I say 't was given him by Parliament Jâ—es Rep. f. 103. concernthe Earldom of Oxford Princes Case 8. Rep. either in the 48th or 49th Nor doth Rex statuit in the least discourage me in this Opinion being many Acts of Parliament have pass'd with the joint Authority of King Lords and Commons and yet the Enacting Part has had words of the same Import with this 2. I differ from my Opponent when he would have it believed p. 228. supra that Ed. 1. and his Successors observed this constantly or as he exprest the same thing before p. 227. The Practice was then and ever since accordingly And in this he has dealt as unfairly by Mr. Camden whom he quotes as I doubt not but 't will be found he has done by Mr. Petyt and me For Mr. Camden tells us That he has this out of an Author sufficiently Ancient and thinks not that he differs from the Authority which he receives when he says 'T was thus only donec till there was a setled Right And this he makes 11 R. 2. but this the Doctor vouchsafes not to take notice of But how cheap does he make his applauded Reasonings when he would prove it to be thus ever to this very time or the time of publishing his Libel because it was in the Reigns of Henry 3. Ed. 1. and his Successors to the time of that Old Authors Writing who if we credit Mr. Camden wrote before 11 Richard 2. of which he might be assured by the way of Writing in several Kings Reigns respectively to which Antiquaries are no Strangers or else by the Date annex'd in the same Hand But to prove that the Learned Clarenceux knew more of these things than this Pretender I shall shew that Rights were setled for coming to the House of Lords long since Against Mr. Petyt p. 175. But he will say possibly That he has anticipated and evaded my Proof as my Arguments upon the grand Question were in his Belief Against Jan. c. p. 47. by saying in one place Against Mr. Petyt p. 227. In those times probably the King might omit to summon whom he would I think he swarms with Contradictions as a Judgment upon his Vndertaking For he says That by what he calls the New Government 't was appointed and ordained ib. p. 110. not only that the Kings should call whom they pleased Which cannot properly be meant of Calling but once by Patent or Writ and the giving a Right from thenceforth to come afterwards because there was and is yet a new Call to every Lord for every distinct Parliament But he is express p. 227. That all those Earlâ— and Barons of the Kingdom of England to which the King thought fit to direct Writs of Summons should come
Statute of the Great men The Law made à Rege ib. p. 11. Baronibus Populo had the like Legislators and I do affirm Against Mr. Petyt p. 13. that the word Populus is not to be found in any of these Thus I have wonderfully discovered the unsoundness of Mr. Petit's Assertions ib. p. 2. though it will be objected I have jumpt over several Arguments and they material ones concerning Great Councils before the Conquest Upon which it follows that if the Populus were admitted after it must be by the bounty of the Conquerour who might at pleasure revoke his Concessions For the Story of Edwin of Sharnborn b. p. 24. supposed to have enjoyed his Lands by a Prior Title 't is a famous Legend and trite Fable though he had the King's mandat for Recovering his Estate Sir Edward Coke ib. p. 30. who to avoid the evidence that our English Laws were the Norman Laws Against Jan◠c. p. 89. said The Laws of England are Leges non scriptae said it precatiously without any Foundation or Authority Besides 't was ridiculous as if they were known by Revelation divinely cast into the hearts of men Though some may impertinently ask me Whether there were not Laws before Writing and that without Revelation or divinely casting into the hearts of men But that Against Mr. Petyt p. 167. if affirmed is a palpable and gross Error What though that Clergy-man-Lawyer Bracton agree with Coke yet he spoke out of Ignorance or Design when he said Absurdum non erit leges Anglicanas licet non scriptas leges appellare Bracton l. 1. fol. 1. William the Conquerour brought in a New Law Against Mr. Petyt p. 29. and imposed it upon the People The greatest part of the Antient Law as it was brought hither by the Normans was exacted and observed by ib. p. 43. and upon only the Normans For the English they had no Property or Rights left And so were all Outlaws This Domesday-Book in every County shews though 't is said several English-men are there mentioned holding by Titles not derived from the Conquerour p. 176. And for a farther proof of this King William ' s Law to all the Freemen of the whole Kingdom was made only to Tenants in Military Service ib. p. 39. which were French p. 35. Flemings Anjovins Britains Poictovins and People of other Nations When this King in the 4th of his Reign summon'd Anglos Nobiles Sapientes suâ lege eruditos to give an account of their Laws 't was a Sham Summons for no English were Nobles nay none were so much as Free-men but the Foreigners amongst whom William divided the Kingdom and therefore Strangers that had their Estates came in their steads and gave an Account upon Oath of the Laws before their own time as they us'd to do of matter of Fact p. 39. when sworn upon common Juries William the Second and Henry the First were Usurpers and Traitors p. 51. notwithstanding the People's Elections Clerus and Populus are to be understood onely of Tenants in Capite p. 56. never of the inferiour sort of People Wherefore they dote who say that the inferiour Clergy nay the dignified not Tenants in Capite came to Great Councils before 49 H. 3. It 's very true Against Jan. c. p. 70. that in our Ancient Parliament-Rolls the Knights of Shires are sometimes called Grantz des Counties or Great men of the Counties and well they might for without doubt they were most commonly the greatest Tenants in Capite under the degree of Barons in each County Against Mr. Petyt p. 116. 117. And for evidence of this the Great Tenants in Capite that were no Barons and perhaps the least Tenants in Capite in the times of Ed. 3. and Ric. 2. are call'd autres grantz or Grandes autres Nobles which were Barons Peers called by the King 's Writ into the Lords House at pleasure and omitted at pleasure Wherefore 't is to be observed that the Knight for the Shires might well be Noble or Grantz since they were call'd sometimes to sit in the Lords House And whether they that were chose for the Counties and did not sit in the Lords House as Barons Peers were Grantz or Nobles perhaps may be a Question As a choice piece of Learning I must acquaint you that though sometimes Fideles signifie qui in Principis alicujus potestate Glos. p. 15. ditione sunt qui vulgo subjecti appellantur Subjects in general yet unless there be special matter to shew the contrary 't is meant of Uassals who having received Fees are in the Retinue of some Patron or Lord if in the King's Retinue they are Tenants in Capite So when we find Writs directed Omnibus Christi Fidelibus Glos. p. 17. Here when there is no more Subject matter to determine it than when 't is omnibus Fidelibus Regni they must be our Saviour's Tenants in Capite When the Form of Peace Against Mr. Petyt p. 125. in the 48th of H. 3. was by the Assent of the King the Bishops and the whole Community of the Kingdom can any man say the Earls and Great Barons these Tenants in Capite gave not their Consents They must be included in and were a part of the whole Community of the Kingdom And indeed to speak the truth it is not denied against me Against Jani p. 71. but proves their Notion to those Vnwary Readers whom they seduce to have some good opinion of their Fancies Though that Form of peace is said in the Record to be Actum in Parliamento London Against Mr. Petyt p. 208. yet the Prelates and Barons were such as sided with Montfort p. 120. and the Community was the Body of his Army and the Citizens and other of the Faction they were not the Community of the Prelates and Barons onely as at other times Nay here were the Citizens and others besides the Army And yet the Community or Body of the Army took in all besides the Prelates and Barons And this must needs have been the Army Mat. Westm. p. 394. Posted convenientibus Londini Praelatis c. partis illius quae Regem suum tam seditio è tenuit captivatum because 't was after their work was over that the Assembly at London was And the Army it must be though as 't is idely objected it is far from appearing that all the Bishops Earls and Barons which consented had been in Arms. Though they that were of the Faction as is usual caball'd together and as some will say onely resolved upon what they would press the King to they hereby Statuebant c. made Laws before the consent of the King and all the Bishops Earls and Barons and it should seem before all were assembled or could be a Parliament And which such as never intended to understand will make a wondring
yields these Rights to be more than precarious For according to him the Tenents in Capite were the only Members of the Great Council before 49 H. 3. and if others were after 't was by Usurping upon the Rights of Tenents in Capite ib. p. 210. ib. 42. who and not others when the 〈◊〉 Government was set up How were Cities and Burroughs holding in Capite Represented according to this And how came they ever to be Represented began to be Represented by two Knights for every County out of their own number and they at first that is then Elected their own Representatives and yet these Tenents in Capite might be set aside if the King and his Council pleased nor was any power given to others to chuse till â—0 H. 6. c. 2. which gave no new power ib. p. 79. and the Lords depend upon the Kings pleasure ib. p. 42. Therefore what the design is ib. p. 227. 228. and at whose door the crime of it lies the thing it self speaks tho I should be silent But for fear he should seduce unwary Readers I must observe his Artifice in imposing upon them the belief that as it has ever since 49 H. 3. been at the Kings pleasure that any Lords came to the Great Council so the King could of right name to the Sheriff what Representatives for the Counties Against Mr. Petyt p 249. Cities and Burroughs he pleas'd as he observes in the Margent upon a Record 31 E. 3. but he is not so Candid to observe that though indeed at that time there was such a nomination yet that was noâ— to any Parliament or to make any new Law or lay any kind of Charge upon the Nation or particular men but was a Summons of a Council to advise how what was granted by full Parliament legally Summon'd might be best answered juxta intentionem concessionis praedictae and in such Cases the Judges only who are but Assistants in Parliament might well be consulted but pro magnis urgentibus negotiis as when King Charles the First called the Magnum Concilium or Great Council of Peers to York An. 164â— upon the Scotch Rebellion the King call'd more to Advise with and the Counsellors might well be of his own Choice 'T will be urg'd that when the King appointed but one for every County p. 242. 26 E. 3. they were impowr'd to consent to what de Communi Consilio contigerit ordinari p. 246. 27 E. 3. and that such a Council made Laws as the Statute of the Staple made the 21 of E. 3. to which the answer is very obvious that they made only Ordinances not Laws and that these were Magna Consilia taken in a sense totally different from the Generalia Concilia or Parliaments and all this appears above the power and subtilty of our learned Doctors Evasions in that the Record cited by himself in the 26 E. 3. calls the Assembly they are Summon'd to Concilium only and an Act of Parliament in the twenty eight of that King calls what was done in the twenty seven Ordinances 28 E. 3. c. 13. and that meeting a Great Council Magnum Concilium but such a Council it was and its Resolutions such meer Ordinances the distinction of which from Acts is well known that that very next Parliament finds it needful to confirm and give them the force of a Law Agreeably to this the Earl Marshal in that grand Case in the 3 H. 6. pleads that though a determination hadde be made against the said Earl Marshall in great Council Rot. Par. 3. H. 6. n. 12. though he hadde be of full age that might not disherit him without Authority of Parliament these are uncontrollable evidences and proofs against him let him to save the great Credit of his Learning answer them if he can But who is the new Government-Maker and new Parliament-Maker perhaps one might know from himself when he has considered a little better and then he may think the Government as 't is now establisht â—ighly concern'd in his Errors Perhaps 't will be said I injure this good man in imputing to him a design in relation to the present Government Since he owns that the most excellent great Council Against Mr. Petyt p. 229. and goes to prove it evidently from Records received its perfection from the Kings Authority and time But 't is obvious that its Perfection must be meant of such its Perfection as his Book allows and he would make evident but what is that That Lords should to the time of his excellent discoveries be Summon'd to Parliament ib. p. 227. 228. or past by at the Kings pleasure and that if the King pleas'd he might Summon one Knight for a County ib. p. 249. one Citizen for a City one Burgess for a Burgh and those nam'd to the Sheriff And this design will be very evident if we observe his aery ambuscade to return his own phrase and meer juggle in joyning the Kings Authority and time together we think we have something but by an Hocus Pocus Trick 't is gone for admit that its Perfection were such as we say it has at this day viz. for Lords to come of Right in their own Persons and that the Commons should send Representatives of their free Choice Yet let us see what setlement he gives this Great Council for which purpose we must divide the two Authorities which sometimes may differ And 1. Suppose that though time would preserve that power which the Great Council exercises a King would hereafter take it all to himself and make Laws by a Council of his own chusing or without any If the Doctor allows this power doubtless the next Parliament will thank him 2. Suppose that without or against the Kings Authority time only would establish this Great Council can this be done He that affirms it surely will be no great friend to Prerogative nor understands he that Maxim Nullum tempus occurrit Regi And one of these must be clos'd with 'T will be objected that I am as injurious to Prerogative in arguing that some Lords may have a Right of Prescription to come to the Upper-House But I think no sober man will deny that there is a right either from Writs alone or from Writs as prescribed to and 't is strange that it should not be against Prerogative to urge a right from one Royal Concession and yet it should be to urge it from many but farther if they who had no right to come in Person or be Represented in Parliament should by colour of Prescription put themselves upon the King for Counsellors this were derogatory to the Prerogative But if there be a natural right for Proprietors of Land with whom some say is the ballance of power within this Nation to be interested in the Legislature which I 〈◊〉 not affirm Or if there be such a positive right not only from the Laws for frequent Parliaments which suppose such to be Members as had been but more particularly from the Law received in the 4th of William the First Rex debet omnia rite facere in Regno per judicium procerum Regni and by positive Law or Custom the King us'd to send special Writs for some general for others the Prescribing to special Writs which is not of Substance as to the Legislative Interest is no diminution of Prerogative because no more in effect is out of the King than was before which is that this man should one way or other have a share in the Legislature If this Solution of mine will not pass I cannot help it I am sure the Law for a right grounded upon one or more Special Writs of Summons stands fast though the reason of it should be above my reach Having run through a Book so ill-natur'd to the Government and so impotent in its setled anger as that which some may think to have no other design Above all vid. Title page Against Mr. Petyt p. 81. than that of exposing Mr. Petyt and me the one for Artifice â—â—nhandsom dealing with and false application of Records c. the other amongst other things for Ignorance Confidence and Cheating his Readers I may hope notwithstanding the disparity of years and the dignity of his place to be very excusable in using our Answerer with no more respect When a man renders himself cheap by his folly and yet meers with many so weak that they are discipled by him to notions of dangerous and pernicious consequence to the State Ridentem dicere verum Quis vetat In summing up the Product of his many years labours which my Preface charges him with perhaps it may be thought that I omitted one considerable Head however I leave to others if they think fit to add for a seventh That both Lords and Commons may be depriv'd of all Shares or Votes in making of Laws for the Government of the Kingdom when ever any future King shall please to resume the Regality Some perhaps may add an eighth That the Parliaments are nothing but Magna Concilia such as are called only to Advise upon what shall be given in direction but no consent of theirs required to make the Kings determination a binding Law And Vice Versâ every Great Council such as that call'd to York 〈◊〉 1640. is a Parliament FINIS ERRATA PAge 12. l. 6. add Drs. before interdicts p. 15. in marg add p. 239. p. 16. l. 11. read vicinata p. 18. l. 10. r. 25. p. 28. l. 12. r. in Chief p. 39. l. 5. r. had p. 47. l. 21. r. induere l. 23. r. deposceret p. 82. in marg dele Shire after Cambridg p. 100. l. 17. r. Sharnborn p. 110. in marg towards the bottom add Domesday p. 124. l. 6. r. paragio p. 133. l. 24. add and according to their Chattels p. 139. add of before a title p. 151. l. 13. r. conticuissent p. 156. in marg r. Lords for Knights p. 163. l. 2. r. â—it l. 10. r. integra p. 201. l. 8. r. title In the Additions Page 8. l. 5. r. article p. 23. in marg Leges Sancti Ed. p. 25. l. 12. r. of King John's Charter viz. Tenants c. ib. l. 25. r. Nocton
Jus Anglorum ab Antiquo OR A CONFUTATION OF AN Impotent LIBEL Against the Government BY King Lords and Commons Under pretence of Answering Mr. PETYT and the Author of Jani Anglorum Facies Nova WITH A SPEECH according to the Answerer's Principles made for the PARLIAMENT at OXFORD Ne Sutor ultra crepidam LONDON Printed for Edward Berry in Holborn-Court in Grayes-Inn 1681. THE PREFACE THere was a Book lately publish'd against Mr. Petyt and my Self which not only treats us with Pedantick Scorn like those that are to Cap the Author within his Colledge but its seems to trample on the best Constitution our Government it self under Colour of its being New in the 49th of Hen. 3. Against Mr. Petyt p. 110. when it arose out of the indigested Matter of Tumults and Rebellion and so not having a Legitimate Birth as not born in Wedlock between the King and his People it may be turn'd out of Doors by the Help of that Maxim Quod initio non valet tractu temporis non convalescit How can a Bastard become a Mulier The Treatise which was to prove the Fact Against Jan. c. p. 1. Matter of Fact only was cried up for unanswerable and perhaps 't was imagined that there was no possibility left for a Reply since the Writer who has render'd himself famous in his Generation as if he knew better how to manage a Design than an Argument pass'd it about only to such Hands as were obliged by Promise if not by Principle to conceal it But Mr. Petyt and my Self having by Accident seen bis Book and observed some Heads which we intended to expose to the World At last out comes the happy Birth yet 't was hoped that by that time there might be Proselytes enough to defend it with Noise and Acclamations and Contempt of all Opposers Records Ancient Historians and our Ancient or Modern Lawyers Though generally in a Matter of Argument we ought to leave to the Reader the Censure of what we think we confute without remarking how absurd or criminal it is yet when such Reflections are almost the only Arguments on the other side and they when pronounc'd tanquamè Cathedrâ must have some Authority 't is fit that even these trifles should have their due provided they be answered with Decency of Expression And we know in what manner the Wise Man advises us to answer some People I should have been glad if this Author'â— Civility had obliged me to treat him at another Rate than I do since I delight not iâ— this way nor think thereby to please such Readers as I would court to be Judges between us But why should I Apologize for the managing of this Controversie in a way wholly New to me Since the severest Expressions are but retorted and transcrib'd from our Answerer's Original and indeed it may well be an Original for 't is without Example If in any thing I seem intemperate I may say with an Author well known Excess of Truth has made me so Our Author 's very Notions are Satyrs upon themselves nor can any thing more expose a Man than a seemingly Gigantick Endeavour to remove the fix'd Stars the Lords from the Firmament where each shines in his setled Station and to take from the Commons of England that Spot of Earth which they enjoy and tread on While the Sons of Titan lay Pelion upon Ossa one Mountainous Fiction upon another the Mountains have a quick Delivery and bring forth Confusion to the Giants What has been the Product of his many Years Labours I think may be shewn in Miniature under these Heads 1. That the Norman Prince against his reiterated Promises and against the great Obligation of Gratitude to those of the English who assisted him Against Mr. Petyt p. 29 30 31 32 33 34 35 so p. 176. took away all their Lands and Properties and left them no Right or Law 2. That from the Reputed Conquest and long before under the British and Saxon Governments to the 49th of Henry the Third None came to the Parliaments or great Councils of the Nation where Life and Fortune were disposed of but the King 's immediate Tenants in Chief ib. p. 39. by Knights Service 3. That even they came at the Discretion of the King and his Council ib. p. 79. 228. ever after the 49th 4. That the House of Commons began by Rebellion in that very year ib. p. 210. 228. 229. nay and the House of Lords too 5. That the Constitution of the Lord's House ib. p. 227. 228. 229. consists at this very day in the King 's calling or leaving out from special Summons to Parliament such Earls and Barons as he pleases 6. That by vertue of the New Law imposed upon the People p. 29. by the Conquerour p. 39. none within the Kingdom were Free-men or Legal men but Forreigners who came in with him being such as nam'd and chose Juries and serv'd on Juries themselves both in the County and Hundred Courts who were all Tenants in Military Service None surely but such as read without observing any thing whose Books can't beat into their dull Brains common Reason and who never were acquainted with that excellent Comentator'â— practise will think that I need set my self to argue against every one of these ' Tâ—â—ll be enough if under those Heads which I go upon to destroy his ill laid Foundations I prove them upon him for most of them confute themselves Truly I cannot but think Mr. Petyt and my self to have gone upon very good Grounds since they who oppose them are forc'd to substitute in their Rooms such pernicious ones as would render the Foundation both of Lords and Commons very tottering and unstable Not to mix Lords and Commons together I will endeavour to do right to the dignity of that Noble Order and their Interest in Parliament apart from the other The Constitution of the House of Lords our Antagonist as I shall shew will not allow to have been setled till after the time of E. 1. if it be yet Whereas for a short Answer to his new Conceit the Earl of Norfolk Rot. Parl. 3. H. 6. n. 12. p. 228. in the third of H. 6. lays his Claim to and has allowed him the same Seat in Parliament that Roger Bigod his Ancestor had in that great Court in the time of H. 3. And though on the side of the Earl of Warwick his Competitor 't is urged that the Earl of Warwick had the Precedency by King H. 4◠〈◊〉 Commandment 'T is answered Yat Commandement yave no Title ne chaungeth not the Enheritaunce of the Erle Mareschal but if or unless hit hadde be done by Auctorite of Parlement And if Precedency were a setled Inheritance which could not be alter'd but by Act of Parliament how can a fixt Right of coming to Parliament be taken away otherwise Though our Author supposes it to be at the meer Will and Pleasure
shew their Indignation at their own and their Teachers Credulity 'T would be Vanity in me to run the Parallel between our Author 's Magisteriaâ— Assertions and my Proofs but he glories much in taking all from the Fountain head of Original Records whilst I truly am thankful to those Friends that communicate to me Transcripts so faithful that even he himself cannot pick an Hole in any of them The Records of the Tower and of the Exchequer I gratefully acknowledgâ— to have been received from the beneficial Industry of my ever honoured Friend Mr. Petyt and the true Copies of Dooms-day Book are owing to the worthy Knight Sir John Trevor and to the learned Gentleman Mr. Paul Bowes of the Temple whose Father was Executor to the indefatigable Antìquary Sir Simon D'Ewes And surely no man need be ashamed of such Assistances Thus like the old Roman accus'd of â—nriching himself by ill means have I â—rought before my Judges the innocent Inâ—truments of my small Improvements Is â—here Witchcraft in any of these A CONFUTATION OF AN IMPOTENT LIBEL Against the Government By King Lords and Commons Under Pretence of Answering Mr. Petyt and the Author of Jani Anglorum facies nova Ne Sutor ultra crepidam The INTRODVCTION 'T IS doubtless a brave thing to attempt heroick Mischief to insult over the Ruines of a well framed Government at least though but in Appearance to venture upon the Design of altering it with Jesuitical Boldness how much soever is wanting of their Subtilty Fame is as careful to preserve the Memory of him that burnt as of him or them that built Diana's Temple nor is Mr. Petyt more likely to live in the Records of future Ages for giving new Life and Lustre to so many of the past than our State-Physitian for poysoning those sacred Fountains with his Exotick Drugs 'T is not to be doubted but late Posterity will admire the excellent Composition of that Clyster whereby he would purge the Body Politick from the Chronical Disease of Liberty and oppressing Load of Property Since he has thought fit to Out-Law all the English and to give them Lupina Capita put them out of all Protection and Security he must not look for much Respect towards his voracious Cubs which like the Cadmean Crue were born fighting with one another they would like Phoraoh's lean Kine devour the Fat of the Land and must needs require a great deal of Nourishment since they have so long been floating in his watry Brain without any substantial Food Indeed he himself in great Measure played the Executioner upon his own Follies and condemned them for some time to the dark being as he says in his Letter to a noble Peer Doubtful whether they should be published as is usually done by unlawful Births he endeavoured to stifle them but finding it not improbable that they might with Justice be represented as dangerous and monstrous he has let them live to his Reproach CHAP. I. That he mistakes the Question and contradicts himself to the yielding the whole Cause nor is a greater Friend to Parliaments than to common Sense IF notwithstanding all this huffing Author's mighty Bustle I evince 1. That he mistakes the Question 2. That he contradicts himself and that sometimes to the yielding up his Cause What will the World say of his Knight Erranty in Antiquities and noble Design to rescue the Virgin Truth from the enchanted Castle of groundless and designing Interpretations P. 1. Against Mr. Petyt for himself to deflour her I must be excused if some of his Contradictions are suffered to fall in here since I can hardly represent any Notion of his without them but I will keep all out from hence which relate not to his Mistake of the Question SECT 1. THE Controversie between us is of Right whether or no the Commons such as now are represented by Knights Citizens and Burgesses had Right to come to Parliament any way before the 49. of H. 3. except in the fancy'd way of being represented by such as they never chose Tenants in Capite by Military Service Mr. Petyt in my Judgment proves that Citizens and Burgesses had Right to come by Representation and I that Proprietors of Land as such had a Right to come in Person before that The Fact is used by both of us as a means to prove the Right Acts of Parliament as now called and King's Charters as of old are also insisted upon and even the Records and Histories produced to vouch the Fact are for the most part yielded us so that the Question upon positive Laws and upon Testimony is either whether Right can arise out of any Fact or else it is matter of Right and Reason what Sense ought to be put on the Words of the Witnesses to the Fact or any of them as is made out by an ordinary Instance Suppose a Witness in a Cause swears to a matter of Fact and his Credit is not denyed but the Question is in what Sense we ought to take his Words here Reason must determine the Fact by considering the Coherence of his Discourse and the several Circumstances which explain it And this we are taught His Glos. by our doubtful Oracle or rather by Apollo himself when 't is told us that the meaning of fideles c. is to be known from the subject matter yet Against Jan. Angl. facies noâ—a p. 1. for all this forsooth The Controversie is of matter of Fact only Indeed an Act of Parliament is matter of Fact if 't is disputed whether 't was made or no but if we argue that such or such is the Intendment of it we shan't try this by a Jury or any Judge of Fact And the Right which arises from thence is from the Meaning and the Reason of the Statute as well as from the Fact that it was made It will be said Why do you stand upon Niceties His meaning is no more than that he yields the Right if you prove the Fact But how can that be when he denies a Right even to his Favourites the Tenants in Capite though he supposes that de facto they came all along Tho they came before the 49 of Hen. 3. Yet the House of Lords and the whole Great Council was before that but an House of Lords was a new Constitution in the 49th of H. 3. and had it's Origine from that King's Authority Against Mr. Petyt p. 228. 229. p. 110. then a new Government And after that though de facto Lords came as Lords yet ever since the 49. H. 3. it was not out of Right for 't was at the King's Pleasure and so 't was with contracted Bodies of Tenants in Capite who prescribed to a Right from before the 49 and if they came were Lords for you must know no Commons then were ever at the Council But the King and his Privy Council might give them a present Right if they pleased or with-hold from any the Writ
ancient Demeasn when they have not been called to great Councils This Author is pleased to say p. 99. It cannot be thought that the King ever wrote to all the Knights and Feudataries of England Pat. 15. Jo. p. 2. M. 2. n. 9. Rex Baronibus militibus omnibus fidelibus totius Angliae These Fideles were the Kings Tenants in Capite Glos. p. 16. to meet in a great Council c. and therefore whatsoever the words of the Writ are the Design of it was to convene such only as had usually in those â—imes been called to great Councils which were the Tenants in Capite though no Barons That is in effect the King never wrote to all the Knights and Feudataâ—ies yet he did for he conven'd his Tenants in Cheif though no Barons 'T is manifest he speaks here only of the King 's Feudal Tenants for he avoids â—he largest and most comprehensive Sense of Fideles which as he informs us there â—nd in his painful and partial Glossary of some half a score words may be taken for Subjects in general and restrains â—t to such as were Tenants in Capite But he says 't is not to be thought that all the Fideles in the restrained Sense had the King's Letters or Writs yet in the same page with an antick Face p. 99. he tells us they the Tenants in Capite though no Barons were all summoned by particular Writs And this he learnedly proves by the irrefragable Authority of King John's Charter p. 100. which gives the Tenants in Capite that were no Barons a general Summonâ— only even as he himself translates the words I 'll appeal to all but him whether he does not only yield the Right which he opposes in the Sense which he puts upon Fideles but gives more than any reasonable man will insist upon for I knowâ— not that it has been urged for more than Free-holders But whereas he tells us That the word Fideles of which there has been so late mention Glos. sometimes is taken 〈◊〉 Subjects in general in another place he gives us to understand that the meaning of this word Fideles as also of these words Liberi homines liberè tenentes c. p. 17. is to be known from the Subject-matter where they are used Wherefore if such Grants were made by these as Feudataries only could not charge then others were Parties thoâ— not in his large Sense That such there were we have the Authority of Braâ—on Jani Angl. facies nova p. 1. as has been before observed tho â—he Dr. thought it not worth his noâ—â—ce Sunt quaedam Communes praestationes â—ae Servitia non dicuntur Bract. lib. 2. c. 16. p. 37. nec de consueâ—dine veniunt nisi cum necessitas interveâ—erit vel cum Rex venerit sicut sunt hiâ—agia corragia carvagia alia plura de â—ecessitae consensu communi totius regâ—i introducta Which are not called Services nor come from Custom but are only in case of Necessity or when the King meets his People as Hidage Corrage and Carvage and many other things brought in by Necessity and by the â—ommon Consent of the whole Kingdom And the Carvage which is one of the â—hings mentioned by Bracton we find â—ranted by the Magnates fideles Rot. Claus. 4. H. 3. m. 2. Conâ—esserunt nobis sui gratiâ communiter omnes â—agnates fideles totius regni nostri doâ—um nobis faciendum scilicet de qualibet caâ—catâ c. duos solidos But farther if I may be so bold he â—ells us by this Law meaning King â—ohn's Charter p. 100. the way and manner of â—ummons to great Councils was setled So that for the future p. 101. the Summons should be by particular Writs to every great Baron and in general to all Tenants in Capiteâ— by Writs directed to the King 's Sheriffâ— and Bayliffs Yet for all this plentiful Concessionâ— that here was a Right setled by Law he had before as much as in him lay over-thrown it and destroyed the wholâ— Foundation of Parliaments by a wisâ— Answer to the Record of 8. Ed. 2. wherâ— St. Albans as holding the Chief pleadâ— it's ancient Right to come to the greaâ— Councils and alledges that the nameâ— of it's Representatives appear in thâ— Rolls of Chancery The Answer per Concilium is Scrutentur rotuli c. de Cancellariâ temporibus Progenitorum Regis Burgenseâ— praedicti solebant venire vel non tunâ— fiat justitia vocatis evocandis si necesse fuâ—rit This I find thus translated Let the Rolls of Chancery be search'd if in the time of the King's Progeniâ—tors Against Mr. Petyt p. 78. the Burgesses aforesaid used to come or not and then let them have Justice in this matter and such aâ— have been called may be called if therâ— be necessity Though I am informed by such as â—nnot but know it to be so Against Jan. c. p. 111. that this mighâ—â— man of Letters has been drudging at â—ecords these sixteen years yet I do not the least wonder at his Ignorance in â—â—em since he laid not a Foundation at â—â—hool by learning Latin as he should â—â—ve done nor has Stepdame Nature â—â—dued him with Sense to understand 1. Can he pretend to Latin and â—t translate Vocatis evocandis such as â—â—ve been called may be called The â—â—st Rudiments would have taught him â—at it signifies They being called that â—â—ght to be called or such Persons and â—hings as ought Parties Papers and â—ecords And if he had look'd into the Parliaâ—ent Rolls of that very Year Rot. Parl. 8. Ed. 2. n. 261. 247. he would â—â—ve found Vocatis vocandis or Vocatis â—i fuerint evocandi which was used it were to prevent all possible Blunâ—rs the usual form of directing Tryâ—s 8 Ed. 2. n. 105. Sometimes 't was Vocatis partibus 〈◊〉 auditis eorum rationibus 2. But can he pretend to Sense â—o shall think that when Justice is to 〈◊〉 done still 't is left to Will and Pleasure with a may be Or that when Right is grounded upon any particulâ—â— Reason or Fact which only is question'd the Right would be in Questionâ— though this very thing were proved How comes the Search to be directed as the only means of deciding it Oh! but 't is si necesse fuerit I take 〈◊〉 this can be no more than that if after the Rolls were search'd farther Tryaâ— or the hearing the Parties Reasons anâ— Enforcements of the Fact were neceâ—sary they should be called To which Sense Records of the same year give full Authority Mandetur Thes. Bar. de Schaccaâ— quod vocatis coram eis Collectoribus infâ—â— inquisita contentis in petitione si necessâ— fuerit plenius veritate Rot. Parl. 8. Ed. 2. n. 204. so n. 241. faciant inde conqueâ— rentibus justitiam But more direct Rot. Parl. 8 Ed. 2. n. 210. Et si necesse fuerit quod Nicholaus
acquir'd the Crown by Election these things shew it to have been as factious as those which are condemned But we must have Recourse to the History to know how he became King here England since it had been reduced to a Monarchy by the Conduct and Magnanimity of the great King Alfred found that benefit of being under One Head that before Succession was setled when a King dyed the People voluntarily pitch'd upon some One to whom they might pay their Allegiance and from whom they might expect Protection when a King quitted his mortal Dominion to be Assessor with the Principaâ—ities and Powers in the highest Orb. The Question was not whether they should have a King or no but who should be the man The Confessor through some foolish Vow which was void in it's self having denyed Marriage-rights to his Queen they had none of his Issue to set their Hopes upon and perhaps they were loth to fall again before a Family which they had formerly disobliged and therefore would not think upon Edgar Etheling who was Heir to him that wore the Crown next before the Confessor But that Monarch of their Choice and as 't was believ'd the Elect of Heaven was in such esteem with them that the greatest Worth and the clearest Stream of Royal Blood would have signified little in respect of the Deference they paid to his sanctified Judgment and therefore his Recommendation in such a superstitious Age was to them a kind of Divine Revelation The Norman Prince Abrev. Chron. Rad. de diceto fo 479. Subregulus Haroldus Godwini filius quem Rex ante suum decessum elegerat à t tius Angliae Primatibus ad regale culmen electus William pretended a direct Gift of the Crown from him but there is Authority which tells us That upon his Nomination the chiefâ— men of all England chose Harold Whether this illustrious Son of the great Earl Godwin was design'd by the Confessor or no is left in Dispute but that he arriv'd to his high Trust by a general Election of those who were able to keep under M. S. ex bib Domini Wild defuncti or satisfie the rest is certain and yet an ancient Author calls him Conqueror Heraldus Strenius Dux Conquestor Angliae If Harold has made an absolute Conquest which no man pretends that I find and William had conquer'd him perhaps there would have been a Devolution of a Conquerours Right upon him who subdued Harold but there was only a Competition between these two Princes for that Dignity and Authority which Election had vested in Harold 'T was this that William fought for not for the Lives Liberties and Fortunes of the People And William himself upon his Death-bed being ask'd to whom he would devise his Kingdom makes Answer that he would not pretend to dispose of it and gives this Reason which argues that he thought he had no Right so to do Non enim tantum decus haereditario jure possedi For Comb. Brit. f. 104. I possess'd not this Honour as a Right of Inheritance which here must be meant as what I had an absolute Property in and Disposal of Sed diro inflictu multâ effusione sanguinis humani perjuro Regi Haroldo abstuli interfectis vel fugatis fautoribus ejus dominatui meo subegi But by a direful Conflict and much effusion of humane Blood I took it from perjur'd King Harold and brought it under my Dominion through the Deaths or Flight of his Abettors With this agrees Lex Noricorum in the Confirmation of St. Edwards Laws William the Bastard through God's Permission subduing Harold Regnum Anglorum victoriosè adeptus est Got the Kingdom of England by his Victory but the Victory was over Harold not the whole Kingdom I wonder our Antagonist brought not this to prove that William the Bastard got all the Lands of the Kingdom as he granted all the Lands of whole Counties under the word Comitatus but as 't will appear that the Proceedings of this Prince to his being crowned prove his Election so his Transactions with Harold shew that he laboured only to have that Power which he said Harold maintain'd by Perjury Suppose therefore Harold had not oppos'd and without more Turmoils William had been crown'd had he in this Case been a Conquerour in the Sense contended for And what makes the Difference between his having it of Harold freely or by Force in relation to the whole Kingdom Surely he would never have endeavoured to come in by Treaty to a limited Dominion when with those Advantages that were on his side he might expect by turning â—ut Harold to jump into the absolute Disposal of the whole Land But immediately after St. Edward's Death he sent an Ambassador to demand a Resignation from Harold to which he urged his Obligation by Oath the Gift of his Kinsman the Confessor was likewise pretended But Harold argued for the Invalidity both of his own Oath and the others Bequest because they were Selden's Review of the History of Tithes p. 439. absque generali Senaâ—s populi conventu edicto That â—s no Act of the Common-Council of the Kingdom which Council is represented by this Author under the Form of the Roman Councils at those times when besides the Senator's Votes there was the Jussus populi And this is in other words of the same Import exprest by Matthew Paris Sine Baronagii sui Communi assensu Upon Harold's denying the Normanâ— demand Appeal is made to the Popeâ— and there was one then in the Papal Seâ—â— whose Ambition made him court all occasions of becoming the Vmpire of thâ— Affairs of Christendom Vid. Dr. Stillingfleet's Answer to Cressy's Apol. p. 347. ad 353. and this was thaâ— great Asserter of Clerical Exemptionâ— from the Civil Power Gregory the Seventh The Pope like God himself who by his Prophets often anointed and designed Kings sends one of his Ministring Spirits a Nuncio I take it with a consecrated Banner as an Evidence oâ— Right and an Earnest of Victory and encouraged him to fight the Lord's Battels not expecting that commendable Ingratitude in the religious maintaining those ancient Rights of the Crown oâ— England for which he afterwards upbraided his Royal Son Whether Superstition or the hopes oâ— engaging the Pope's secular Influence and Interest to his side occasion'd William to refer his Pretence of Right to the Pope's Decision I shall not judge but with these Colours of a Title he lands â—n England and some say committed no Acts of Hostility till his Claim was again deny'd by the daring but unhappy Harold who was a man of Spirit fit for Empire and was likely to have kept â—t much longer had not Fortune raised up against him three great Enemies at once his Brother Tosto Norwegian Harold and the aspiring William against whom possibly his arm was weakened with the Reflection upon his own Vow to William to assist him in his ambitious Design and what he
Then by common Consent there were elected on behalf of the Clergy the Elect of Canterbury the Bishop of Lincoln Winchester and Worcester On behalf of the Laity Earl Richard the King's Brother Earl Bigod Earl of Leicester Simon Montfort and Earl William Marshal For the Barons Richard Montfitchet and John Baliol and the Abbots of Bury and Ramsey that what they twelve should resolve on should be recited in Common and that no form should be shewn to the King by Authority of the twelve which had not the Common Assent of all Here is so manifest a Distinction between Lords and Commons Members of the Great Council that I dare say no man but this Dr. could have united them into one Order as he does all the Laity But here 't is obvious that when the Lay Lords Earls and Barons were all together and ask'd by the dignify'd Clergy then present whether they would agree with them The Lay Lords answered for themselves that they would do nothing without the Common Vniversity which could not possibly be only the Lords Spiritual and Temporal Let our Dr. answer this to save his Credit they referring to others distinct from both and if the Temporal Lords had concurr'd here had been the Consent of the Common Vniversity of Lords if we may so call it But besides the Consent of all the Lords there was requir'd the Consent of another body of men and these must be the Commons which might well be of Clergy and Laity wherefore here was Clerus and Populus Against Mr. Petyt p. 56. and that such as were inferiour to Barons Tenants in Capite and Noblemen that is to such as now are acknowledged to be the only Nobles But for a full Proof both of our whole Cause and of his excellent Faculty Faculty of answering himself Against Mr. Petyt p. 183. Pat. 8. 9. Joh. n. 3. as long since as King John's Reign there were present at Council Vniversitas Comitum Baronum Militum aliorum fidelium alii fideles following the Milites he yields that therefore they were the King 's ordinary Subjects or other Free Tenants and not Tenants in Capite Thus he stifles his thin Notion with a Record and yet pretends by his Chymical Art to bring it to Life again with the Authority of an Historian who though much to be rely'd on is surely of less Authority than a Record Well but what says the Historian Do's he say it was not so as the Record has it No but expresses himself in general Terms and tells us that there were the Comites Barones Milites and others qui ei servitium militare debebant Perhaps he will smile at my saying 't is in general Terms when he is so particular But with his good Leave he is not clear whether 't was Service because of the Kingdom which all men were to perform in Proportion even to their personal Estates or because of Tenure Indeed he by no means seems to incline to the last it being qui debebant Servitium militare not qui tenebant per Servitium militare Besides all that so held had been Milites but here was another sort of men Yet p. 184. the Dr. very comically tells us Here we find others that ow'd the King Military Service and so were Tenants in Capite besides Earls Barons and Knights The place is plain yes 't is very plain that the Dr. says so and as plain that few men else would have spoke so Pray Good Sir Do you know the meaning of Tenure in Capite by Knights Service Where lyes the difference between holding in Capite of the King by Knights Service and owing the King Military Service as Tenant in Capite If there be no Difference how comes it to pass that one who held in Capite by Knights Service ib p. 39 was no Knight tho Tenants in Military Service in those times were the only Great Freemen Glos. p. 10. as that Service was the only free Service although a Bond-man might hold by free Services and yet be a Bond-man Do not you your self own that all the legalmen or Jurors that held in Military Service were Milites in referring to Glanvil where are some Writs to summon Juries of Knights only whence you would infer that the Legales homines mention'd by other Writs p. 40. were all Knights Were they Bondmen holding in Military Service that were the Fideles at Council But that the Plebs Jan. p. 265. the Ingenuitas Regni or liberi legales homines as Sir H. Spelman tells us the Word Ingenuus has anciently been us'd were Members of the Great Councils notwithstanding the Doctors Sense 2 part of the Glos. Jan. p. 266. and the Assertion put upon Sir Hen. that amongst the several Councils which he had read of he found nothing of the Plebs The Dr. may please to consider of these two following Authorities Quomodo Nigellus Episcopus appellatus est ad Roman Sedit autem Rex Stephanus in sede regni sui siluit terra in conspectu ejus veniens Londonias que caput est Angliae occurrerunt ei pacifice suscipientes illum cum magno honore ibi concilio adunato Cleri populi Episcoporum atque Abbatum Monachorum Clericorum Chronicon Eliense penes Dr. Gale Plebisque infinite multitudinis presidente Romanae sedis legato fratre Domini Regis Henrico Wintoniensi Episcopo Theobaldo quem nuper Archiepiscopum Cancie fecerat de statu Regni cum illis tractavit ut in hostes pacis patriae Sententiam Ecclesiasticae severitatis promulgarent indixit cumque invicem causae ab alterutro agerentur prior quidam vital nomine Conquestus est coram omnibus quod Dominus Eliensis Episcopus eum non judicali ordine de sua Ecclesia expulserit huic per omnia ille legatus favebat suffragari voluit cujus machinatione quidam magnae Auctoritatis Prudentiae viri adversus dominum Nigellum Episcopum parati insurrexerunt illum ante conspectum Domini Papae appellaverunt sinistre objicientes plurima maxime quod seditionem in ipso concitaverat regno bona Ecclesiae suae in milites dissipaverat aliaque ei convicia blasphemantes improporabant Anno 1136. Edicto per Angliam pro mulgato summos ecclesiarum ductores cum primis populi ad Concilium Londomas conscivit illis quoque quasi in unam sentinam confluentibus ecclesiarumque columnis sedendi ordine dispositis vulgo etiam confuse pexmixtim ut solet ubique se ingerente SECT 2. ANY one that reads our Author's book gelt from his indecent Reflections would think him to mean very honestly and that he urg'd nothing but with design of being confuted thus when he produces Mr. Camden's Authority for the new Government and charges me with a designed Omission of Eis one would imagine he thereby intended to put an Argument into my Mouth for the Rights of inferiour Proprietors Statuit
Honourable sages Communâ—â— pleise a vous honourables Sires considereâ— c. Lu quele peticion bien conceive 〈◊〉 mesme le Parlement fuit respondu c. d d d Rot. Parl. 3 H. 5. pars 2. n. 36. Hospitalx Pleise a les Honourables sageâ— Communes e e e Rot. Parl. 4 H. 5. n. 19. Pur Labbe de Fountaynes Pleise as Honourables Sagâ— Communes f f f Rot. Parl. 5 n. 16. Pur le Duc Decastre As Honourables Communes que pleiâ—â— a vous Sages discretions de prier c. g g g Rot. Parl. 9. H. 5. pars 2. n. 11. 〈◊〉 Willielmo Domino de Clynton Ales Honourables Tressages Comâ—munes supplie Sire William de Clynton 〈◊〉 As Tressages Rot. Parl. 6. H. 6. n. 17. Treshonourables Communes de cest present Parlement Pro Johanne Harris pleise â—vous Tresnobles discretions de prier a noâ—tre Seignieur le Roy c. Rot. 8. H. 6. 29. Please a Tressages Honorables Communes c. Rot. Parl. 15 H. 6. n. 36. 4. Honorables sages sires les Communes As Honorables Rot. Parl. 2 H. 5. n. 51. Sages sires les Communes de cest present Parlement Rot. Parl. 4. H 5. Pur la terre Dirland As honorables Sages sires les Communes dicest present Parlement supplient c. 5. Honorables Treshonorables Tresnobles Gracious Tressages Seignieurs les Communes A les Tressages Rot. Parl. 2 H. 5. pars 2. n. 22. Honorables Seignieurs les Communes de cest present Parlement supplie treshumblement Pur Mark le Feyre c. Please avoz Honorables Sages discretions graciousement Supplier a nostre Sovereign c. La quele peticion lue en dit Parlement plenement entendue fuit respondu en manere qeu suit c. a a a Rot. Parl. 4 H. 5. n. 20. As Treshonorables graciouses Seignieurs la Commune du cest present Parlement c. b b b Bundel Pet. Parl. 4. H. 4. Pur Burgeys de la Ville de Lym. As Tressages Tresnobles Communes de cest present Parlement SECT 4. FOR Confirmation of the Nobility of such Commons as now are represented in Parliament I shall add the Authority of our great Master of Records The Design of his Book is â—hieâ—â—y to prove that only Tenants in Capite were Members of the Great Council but finding all the Nobility there he often extends itâ— farther to their Tenants by Knights Service One of his Arguments to prove that Commoners were not Members is because tho Records mention Communitas or Milites p. 110. which takes in the Tenants in Capite and their Tenants by Knights Service Fideles p. 183. yet Mat. Paris has only tota Angliâ— nobilitas or magnates regni And in shortâ— we are to understand that all the Members were Nobles which is a clear prooâ— that when Communitas or Fideles besideâ— Milites are mentioned to have been Members those though more than Tenants iâ— Capite and their Knights were all Noblesâ— Quod erat demonstrandum This alone were sufficient to discover thâ— Writers Ignorances Against Jan. p. 54. in that he hath cited Records and Histories directly against himselfâ— And he in effect confesses how he hatâ— cheated his Readers ib. p. 63. and abused and wresteâ— the Records and Histories he hath cited Where he has strained them to a contrary Sense FINIS A SPEECH According to the Answerer's Principles Made for the PARLIAMENT AT OXFORD LONDON Printed in the Year MDCLXXXI THE SPEECH I Will not say the Dr. has followed the biting Advice of the Satyrist Aude aliquid brevibus Gyaris carcere dignum Si vis esse aliquis If you 'l a figure in the Kingdom make By punishable Crimes the way to 't take After he has taken his demerited Seat in the House of Commons with a Magisterial look and a Professor's preparatory hem thus methinks he addresses himself to the Chair Mr. Speaker I Cannot but congratulate our happy meeting in this Place where the Vniversity will teach Loyalty to the most Factious and dispose them to swallow down that Remedy which out of a burning Zeal to bring into the World something suitable to the Dignity of my Professor's place I am eager and all Passion to communicate My Remedy in short is a Lenitive to cure the raging heats of insolent Parliaments which are too apt to value themselves upon their pretended Antiquity Not loving Idleness Letter to the Earl of Shaftsbury at vacant times from study and Practice in my Profession as a diversion I have with great Industry and I may say it some Judgment examined Things done in this Nation more than a thousand years by past with a continuation of them until three or four hundred years last effluxed Though there are several Lawyers here Against Mr. Petyt p. 29. yet they have study'd and know onely Popular and Lucrative Law and not the Constitutions of the Nation before their own time Concerning which they may be content to hear my Reading The Records which they open are of a nature far short of those upon which I have been poring these sixteen years Mat. Par. set above Record Against Mr. Petyt p. 183. No heed to be taken to the old Monks and Historians ib. p. 16. in Marg to the same purpose ib. p. 43. Nor must they pretend to that acquaintance which I have with Historians whose Authority I can by my sagacious Inventions advance or depress as I see occasion Vnder the Saxon Government p. 6. the People were so far from not having their Votes and shares in these Councils as only they had Uoices in them If any more had they were the Priests but the Princes Great Officers and Leaders had no Voices at all for if they had 't would have spoil'd the singular Democracy Of the many Councils by Mr. Petyt cited p. 13. there is not to be found the word Populus in the Title Preface or Body of any of them except in that spurious one of King Ina p. 15. Yet now I bethink my self King Edward sirnam'd the Elder called a Synod of English Nobility wherein Plegmund presided Here his own Author tells us in few words the meaning of the long Title of this Synod which just before he had mentioned viz. That the Bishops Abbets Fideles Proceres and Populus were all Nobiles Noblemen Whence some will infer that inferiour Proprietors were there as Nobileâ— but 't is without all colour of Reason And in the Grand League and Vnion between the Brittons ibid. p. 8. and 9. Saxons and Picts per Commune Concilium assensum omnium Episcoporum Procerum Comitum omnium Sapientum Seniorum Populorum the Sapientes Seniores and Populi are the Bishops Peers and Earls The Generalis Senatûs â—b p. 10. Populi Conventus Edictum is therefore the Assembly and
Petyt p. 228. nor earlier Commencement than the Commons What King Henry a little before his death begun that is to call such Earls and Barons ib. p. 228. quos dignatus est such as he pleased Edward the First and his Successors constantly observed This was the Constitution of the House of Lords Viz. The rebellious Barons who framed the new Government p. 210. the Lords made the Commons and the King made the Lords The Kings follow'd Montfort's Pattern Against Mr. Petyt p. 229. for calling the Commons to Parliament Which yet was not Montfort's alone for they the rebellious Barons fram'd and set up the new Government p. 210. After which they sent out Writs in the King's Name to summon a Parliament with Commons as well as Noblemen And yet Camden cited p. 226. Cotton cited p. 228. according to two Authors whom I receive H. 3. set the Pattern who after the Victory at Evesham wisely began in This what his Successors fortunately finish'd And the King's beginning this was a Reason why those Kings follow'd Montfort's Pattern Though 't was by the Power of Montfort alone that is of him and the other Barons that the Commons were let in to the great Councils to lessen the strength and power of the great Lords that is their own strength and power yet it was by the King's Authority though 't was before the Battel of Evesham when Montfort prevail'd yet it was done after when the King recovered the Regality I shall come now to the particular consideration of Jani Anglorum facies nova The Author of which sufficiently shews his fantasticalness in the Title of his Book Jani Anglorum facies nova What because his Shreds of Antiquity are thought doubtful by some taken in one sense by others in another do's he therefore make Janus bifrons of his Composition He had as good call it a Spread Eagle which looks both wayes too I am sure it suits better with my Book which is an high Flyer His Allusion to Selden's Jani Anglorum facies altera will not justifie him since that Antiquary was chiefly conversant in Popular and Lucrative Law Besides the Title imports the Novelty of his Opinion though perhaps he would have us believe that he puts a New Face upon those musty old things which have been thought to look with a different Aspect Nor can he shrowd himself under my Title for mine is an old Face which has honourable Scars and Flaws in it and a Professor's Aspect And they understand not Railery and Figure who observe not how I expose him by the Allusion He will have it and brings many Arguments Jan. Angl. c. p. 22. amongst which the Judgment of a whole Parliament of that famous King Ed. 3. but that is not Infallible that the Common Council of the Kingdom in King John's Charter is onely a Council for Scutage and Aid granted by Tenants in Capite Whereas Aid sometimes signifies such as to be sure is granted by the greatest Council and therefore does alwayes Against Jani c. p. 10 11 12. Farther What need was there to have the Cause of Summons declared if it were onely about Aids and Escuage or other ordinary business of course though indeed whether it was for Aids or other Business might not be known without this Declaration ib. p. 12. Lastly If all Proprietors were Members of the Great General Council 't is strange there should not have been the same care taken that they might be summoned Alas What signifies the Provision of the Common Law But he brings an Argument from the Earl of Chester's being a Count Palatine Against Jan. c. p. 20. and not subject to the Feudal Law whereas he was a feudal Tenant Though Bracton lib. 3. ca. 8. I must confess the old Dotard Bracton sayes Comites Paleys Counts Palatine have Regal Jurisdiction salvo dominio Domino Regi sicut Principi saving to the King his Dominion as Prince not as Lord of the Feud Besides in one of the Quotations which he brings to prove that the Earl of Chester however came to Parliament Against Jan. c. p. 17. he leaves out Laici because it manifestly destroys his Whimsey for it shews that all the Laity were Tenants in Chief in that they as a great Council say that the Tenants in Chief did owe no Service But he has another fantastical Notion that this Council in King John's Charter was an ordinary Court. Upon which he has these Arguments which I put among his Unintelligible Vagaries that there was a Court held thrice a year Against Jan. p. 26. which treated onely of Matters of ordinary Justice Vid. Jan. c. unless when 't was united with the Great Council And in these two Senses taken together was an Ordinary Court that the Tenants were obliged by their Tenure to be there Bract. l. 2. c. 16. p. 37. Consensu communi totius Regni introducta But at the Great Councils were more for which he cites Bracton who speaks of several Vnintelligible Businesses for which the Common Consent of the Kingdom was always required That to King John's Charter the Liberi Homines totius Regni were Parties Against Jan. c. p. 5. whereas in truth the Great Charters were onely the Petitions of the People drawn into the form of Charters as Statutes now are upon the Petitions of the Commons drawn into the Form of Statutes and pass'd by the Concurrence of the King and Lords Since I am fallen into the Learning of Charters I must inform you that though the Charter of H. 3. has the inspeximus of Edward the First and is enrolled in the 25th of his Reign in ipsissimis verbis when 't is confirmed 〈…〉 in full Parliament Per commune assent de tut le Royaume Rot. Stat. 25 Ed. 1. m. 38. to have been made by the Common Assent of all the Realm in the time of H. 3. nostre Pere meaning the Father of Edward the First and though as appears in the Statute Roll the Date and Witnesses were of the time of H. 3. yet Against Jan. c. p. 63. this Great Charter was properly the Charter of Ed. 1. or perhaps rather his Explication or Enlargement of that Charter of King John and H. 3. for we find not the Great Charter either of that or King John ' s Form in any of the Rolls until the 25th of Ed. 1. and therefore 't was impossible that any such Charter could be found in the 25th of that King though he Reign'd so long since or indeed that King John's Charter was made by him And there is Demonstration that 't was not the Charter of H. 3. in that Rot. Parl. 15. Ed. 3. N. 150. dor when 't is confirm'd in Parliament in the 15th of Edward the Third 〈…〉 〈…〉 The Great Charter and the Charter of the Forest and other Statutes made by our Sovereign Lord the King