ire de rancour de male volente c. The King and Prince having undertaken the Crusado for the Holy Land quia tamen Praelatis Magnatibus Communitati Regni non videtur expediens neque tutum that they should be both out of the Kingdom istis temporibus it was agreed the Prince should go and a Subsidy was granted to the Prince by the Parliament If one should shew the Authors of the novel opinion only these Records and thereupon ask them who the Communitas mentioned in these Records after the words Praelati Barones Magnates were I doubt not but they would say Knights Citizens and Burgesses because they are after the pretended inception of 49 H. 3. but then I desire to know what authority they can shew why the Communitas in 29 32 37 48 H. 3. should not be a part of the Parliament as much as of 49 51 54. of that King since the words or phrases of both are alike in the Records For I do not think it a true way of reasoning That because the notion of 49 H. 3. is generally published by our now Historians and so believed Ergo it unquestionably was so and has always and in all ages been distinctly known and believed The SEVENTH ARGUMENT From the defect and loss of 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 IT is true indeed for any thing yet appears the Parliament Rolls of H. 3. are all lost or destroyed though references are made to them by several Clause and Patent Rolls of H. 1. and H. 2. yet no direct Writ of Summons ad Parliamentum is extant of that time either of the Lords or Commons so M r Pryn till the Dorse of the Clause Roll 49 H. 3. in a Schedule affixed thereto where there are Writs for Electing and sending to a Parliament at London two Knights Citizens and Burgesses and Barons for the Cinque-Ports and likewise Summons to the great Lords But if that Roll of 49 H. 3. and Rot. Claus. 22 E. 1. had been destroyed as many others of that time were then had there been no footsteps or testimony left us on Record yet discovered of any formal Summons to Parliament of them or the Prelats and temporal great Lords till 23 E. 1. though several Parliaments were in the interim no less than twelve as the Printed Statute Books tell us And the Commons expresly said to be present at some and implyed in all if the Phrase of Commune Concilium Regni implies so much which 〈◊〉 think is unquestionable when compared with the Statute of Westm. 1. made 3 E. 1. which was not eleven years after 49 H. 3. wherein the constituent parts of the Commune Concilium Regni are enumerated and expressed the Statute being made Per l'assentements des Archievesques Evesques Abbes Priors Countes Barons tout le Comminalty de la terre illonques summones Now because from that one Record of 49 H. 3. being the only Roll as yet found out it should be wonderfully observed and from thence infallibly concluded and nicked and by an ominous and influential Asterism of Rebellion and Treason marked that the very first Writs whereby the great Lords are said to be also first Summoned to send two Knights Citizens and Burgesses for each County City and Borough 〈◊〉 Parliamentum in Octabis Sanâ—ti Hillarii were made in this very year at that very Crisis of time nay tested on such very days when the rebellious Barons after the Battel of Lewes had the King and Prince in their power and exercised Regal Authority in his name under good favour seems not at all satisfactory and convincing to me until they give more certain and greater testimonials and evidence and answer these few Records If the Epocha of the Knights Citizens and Burgesses or Commons as now called and distinguished from the great Lords being first admitted a part of the Parliament and Legislative Power had such a Creation and Origine it is more than a wonder though the Parliament Rolls be destroyed that the Lieger Books Charters or Historians of that time either National or Foreign of which there are not a few or our antient Lawyers Bracton Britton Fleta and Hengham had not amongst many Narratives of far less moment and weight given posterity a remark or some short hint or memorial of so suddain so great and so universal a change or Catastrophe of the whole constitution and ancient frame of the English Government as that must unquestionably be admitted to be or some subsequent Chronologer had not so much as dreamed of it till of late or that branch in the ancient Coronation Oath of our Kings demanded by the Archbishop had not been omitted or ne ver administred which runs thus Concedis justas leges consuetudines esse tenendas promittis per te esse protegendas ad honorem Dei corroborandas quas Vulgus elegerit secundum vires tuas Respondebit Rex Concedo promitto The word Elegerit being admitted to be of the praeterperfect tense it certainly shews that the peoples Election had been the foundation and ground of antient Laws and Customs and the term of justas leges seems to allow a liberty of debate reason and argument so much as might be of efficacy and force to demonstrate and convince that the Laws so required by the Commons of the King were just and reasonable the debate and consideration of which certainly was never nor ever could be intended to be done in the diffusive capacity of all the Commons of England separatim but in an intire or in an aggregat body that is in their Communia Concilia or Parliaments And with this agrees the Statute of Provisors An. 25 E. 3. which saith Whereupon the said Commons have prayed our Soveraign Lord the King that upon the mischiefs and damages which happen to his Realm he ought and is bound by his Oath with the accord of his people in his Parliament thereof to make remedy and law and removing the mischiefs and damage which thereof ensue And this they say sith the right of the Crown of England and the Law of the Realm was such Nor indeed can I apprehend any colourable pretence much less a probable reason that if the Barons had 49 H. 3. usurped the Soveraign power into their hands they should 1. So easily and speedily divide and share it with the Commons constitute a new Court of Parliament and make them essential and coordinate with themselves in the Legislative Power sure we know it is natural for all Courts ampliare non diminuere Jurisdictionem 2. That at that Parliament the numerous Barons as they stile them should but summon 23. of their own Order when the Archbishops Bishops Abbots Priors and Deans made 120 if we must be concluded by the Records If there were then
many of the great Clergy and Temporal Nobility instead of Cum multis aliis hath these words multis praeterea illustrissimis virorum personis Regum Principibus diversi Ordinis omissis qui similiter huic confirmationi piissimo affectu testes fautores fuerunt Hii autem illo tempore à Regia potestate diversis Provinciis Urbibus ad universalem Synodum pro causis cujustibet Christianae Ecclesiae audiendis tractandis ad praescriptum celeberrimum Synodum quod Westmonasterium dicitur convocati c. In the margine of the Book I find writ this note Nota hic hos omnes convocari à Rege sua auctoritate ad causas Religionis tractandas tam Nobiles de Clero quam Principes Regni cum aliis inferioris gradus Conventio quorum videtur esse Parliamentum And in the year-Year-Book of E. 3. above 330. years since in a Case touching the exemption of the Abbey of Bury from the Bishops of Norwich we have mention of a Parliament held en temps de W. Conqueror à son Parlement King William the Second KIng William the First being dead William his second Son then living succeeded him in the Kingdom who designing to prevent his elder Brother Robert of the Crown finding Lanfranc Archbishop of Canterbury not altogether consenting with him therein to the compleating his desire and fearing lest the delay of his Consecration might prejudice his desired honor he begun by giving large gifts and rewards to the people and as well by himself as all others whom he could engage fide sacramentoque Lanfranco promittere by his Faith and Oath to promise unto Lanfranc Si Rex foret Justitiam aequitatem misericordiam se per totum Regnum in omni negotio servaturum he would in all actions observe and keep Justice Equity and Mercy through the whole Kingdom that he would defend the Peace Liberty and safety of the Church against all men and also that he would in and through all things obey the Precepts and Counsels of the Arch-Prelate thereupon in Regem eligitur consecratur But not long after Odo Bishop of Baiox Earl of Kent Geffrey Bishop of Constance Robert Earl of Morton Roger Earl of Shrewsbury and the greatest part of all the Norman Prelates and Nobility in England entred into a Conspiracy to make Robert King and to deliver King William to his Brother alive or dead and thereupon they took Arms the King hearing these things and foreseeing his inevitable ruine if the English power did not preserve him caused the English to be assembled together and shewed them the Treason of the Normans and intreats and begs them to help and defend him upon this condition that if they would be faithful to him in that his necessity and distress he would grant them better Laws which they should chuse and would forbid or interdict all unjust Scotts Taxes or Tallages and grant to all persons their Woods and Hunting Upon which assurance and promise the English did faithfully assist him and by thier power valiantly overthrew the Normans and preserved and fixed the Crown upon Williams head But whatsoever he promised he kept but a short time the words of the Author are His auditis Rex fecit congregari Anglos ostendit eis traditionem Normannorum rogavit ut sibi auxilio essent eo tenore ut si in hac necessitate sibi fideles existerent meliorem legem quam vellent eligere eis concederet omnem injustum Scottâ—m interdixit concessit omnibus sylvas suas venationem Sed quicquid promisit parvo tempore custodivit Angli tunc fideliter eum juvabant 'T is therefore evident from hence that William the Second did not claim the Crown jure gladii by the power of the Sword nor did he affirm that he had a despotical right to make or change Laws ad libitum suum sine assensu Regni or Parliament And 't is a great observation to me that from the pretended Conquest to this day I never read of any King of England that declared and publickly owned any such prerogative or right but only that miserable and unfortunate Prince Richard the Second which the Parliament Roll thus expresseth Item Idem Rex nolens justas leges consuetudines Regni sui servare seu protegere sed secundum suae arbitrium voluntatis facere quicquid desideriis ejus occurreret quandoque frequentius quando sibi expositae declaratae fuerant leges regni sui per Justiciarios alios de Concilio suo secundum leges illas petentibus justitiam exhiberet dixit expresse vultu austero protervo quod leges suae erant in ore suo aliquotiens in pectore suo quod ipse solus possit mutare condere leges regni sui opinione illa seductus quampluribus de ligeis suis justitiam fieri non permisit sed per minas terrores quamplures à prosecutione communis justitiae cessare coegit But far different were the sentiments and Judgment of his Grandfather Great Edward the third who tells us Because that by divers Complaints made to us we have perceived that the Law of the Land which we by our Oath are bound to maintain is the less well kept and the Execution of the same disturbed many times by maintenance and procurement as well in the Court as in the Country We greatly moved of Conscience in this matter and for this cause desiring as much for the pleasure of God and ease and quietness of our Subjects as to our Conscience and for to save and keep our said Oath We have ordained c. And wise King James saith That not only the Royal Prerogative but the Peoples security of Lands Livings and Priviledges were preserved and maintained by the antient fundamental Laws Priviledges and Customs of this Realm and that by the abolishing or altering of them it was impossible but that present confusion will fall upon the whole state and frame of this Kingdom And his late Majesty of ever blessed memory was of the same mind and opinion when he said The Law is the Inheritance of every Subject and the only security he can have for his Life or Estate and the which being neglected or dis-esteemed under what specious shew soever a great measure of infelicity if not an irreparable confusion must without doubt fall upon them Henry the First AFter the Death of King William the Magnates Angliae not knowing what was become of Robert Duke of Normandy Eldest Brother of the deceased King the said Duke having been absent for five years in a Voyage to the Holy Land were afraid to be long without a King which Henricus fratrum ultimus juvenis sapientissimus cum callide cognovisset congregato Londoniis Clero Angliae Populo universo promisit emendationem legum quibus oppressa fuit Anglia tempore patris sui fratris
learned Bodin of the Clergy the Nobility and the Commissioners of the Provinces and antient Cities 3. The Portugal Cortes or Parliament consists of the Bishops and Prelats the Nobiles majores minores and two Procurators or Burgesses from every City who have a deliberative voice which they call definitive 4. In Denmark Pontanus saith the Bishops the Nobility Civitatum Delegati the Deputies or Commissioners of Towns and Cities made up their General Council 5. For Sweden it does not much differ from the Government and form of Denmark their Common Council consisting of the same Estates and degrees of people that is to say Proceres Nobiles the greater and the less Nobility Episcopi Ecclesiastici Civitates Universitates the Cities Boroughs and Villages I might here if it were needful shew how great a share and interest the Hanze or free Towns in Germany have by their Deputies in all Ages had in the Diet or General Council of the Empire 6. But now at last we are come to Scotland Sir John Skene in his Epistle Dedicatory to King James before his Scottish Laws writes thus Intelligo tuas tuorumque Majorum Leges quae cum Legibus Regni tui Angliae magna ex parte consentiunt and then in his Book shews that Willielmus cognominatus Leo who as is said begun to Reign in 1105. and reigned 49. Years so as he was King of Scotland 5 10 of our Henry the first held his Assise or Parliament at Perth where several Laws were ordained to the observance whereof Episcopi Abbates Comites Barones Thani tota Communitas Regni tenere firmiter juraverunt King Alexander began to Reign Anno 1214. which was the sixteenth Year of our King John and Reigned 35. Years so as he died an 38 H. 3. he made his Laws de Consilio assensu venerabilium Patrum Episcoporum Abbatum Baronum ac proborum hominum suorum Scotiae And what the Communitas Regni in King William's Statutes and the probâ— homines in King Alexanders were the League made between the French King and the Crown of Scotland Anno 28 E. 1. clearly shews being ratified and confirmed in their Parliament per Johannem de Balliolo then King ac Praelatos Nobiles Universitates Communitates Civitatum Villarum dicti Regni Scotiae and the constant practice ever since hath been that the Cities and Boroughs have sent their Proxies or Representatives to the Parliaments of that Kingdom It may therefore seem very strange that when the Cities and Boroughs in all the Kingdoms of Europe de jure and de facto were ab antiquis temporibus even in times coeval with the Government an essential part of their Common Councils or Parliaments that England should not be under the same constitution being but descendants from Gaul or the more Northern Countries if so 1. Was it because in the Britton Saxon and Norman times there were no Cities or Boroughs or if there were were they so poor and inconsiderable as they deserved no observation in the eye of the State or 2. Was it because by a strange and unheard of fate peculiar and proper only to them they were not fit or capable to give or hear reason as well as the Delegates or Representatives of the Cities and Boroughs of France Spain Portugal Denmark Sweden and Scotland or 3. Had they no property or right in their Estates Certainly in my opinion none of these Objections can be admitted allowed or proved for In the Brittons time venerable Bede tells us Erat Britannia viginti octo Civitatibus quondam Nobilissimis insignita praeter Castella innumera quae ipsa muris turribus portis ac seris erant instructa firmissimis Nor were they of less reputation in the Saxon or Norman times when they were thought so necessary and proper for the safety of the Govern ment preservation and defence of the Laws that it was ordained by William the First and the Common Council of the Kingdom That no Market or Fair should be permitted to be held nisi in Civitatibus Regni nostri in Burgis ubi consuetudines Regni Jus Commune dignitates Coronae nostrae deperiri non possunt nec defraudari nec violari sed omnia recte in aperto per Judicium Justitiam fieri debent c. ad tuitionem gentium populorum regni ad defensionem Regni And if in the Brittons times the Nation was so strong in Cities and Castles surely it cannot be imagined but that in the Saxon and Norman times when the Nation became to be more civilized and considerable in the World the Estates or Degrees of the Inhabitants would easily part with these Liberties and Priviledges which their Ancestors though less knowing and powerful did claim and enjoy Having thus concluded my Arguments against the Position of 49 H. 3. I have thought it not altogether impertinent to add some brief Observations for the better understanding of antient Records and Historians in their various Lections and different expressions I shall therefore consider 1. The different application of the words Commune Communitas or Plebs 2. The several Denominations by which our antient General or Common Council or Parliaments were expressed 3. The various acceptation of the word Baro and that under the Phrase of Baronagium Angliae both Lords and Commons were comprehended Observation I. The different application of the words Commune Communitas or Plebs THere lies a main Objection against me for some Authors say that the words Commons Communitas or Plebs is not to be met withal in any antient Authors or Records ab ingressu Willielmi Primi usque ad excessum H. 3. and therefore conclude they were never a part of the Commune Concilium or Parliament before 49 H. 3. because not mentioned eo nomine Admitting the Objection true which I conceive otherwise yet it is no Conclusive Argument for before the Statute An. 3 R. 2. cap. 3. I cannot find the appellation of Lords Temporal nor before the 13 th of that King cap. 2. the phrase Lords Spiritual and Temporal in our Printed Statute Books Ergo from thence it follows by a necessary consequence according to their Argument that they were not any part of the Generale Concilium or Parliament before those times because not expressed by that name I suppose this Conclusion will not be admitted true But as I am well satisfied that the Archbishops Bishops Abbots and Priors who were often expressed by and comprehended in the word Praelati and who in after times constituted the Lords Spiritual and the Earls and Barons as now differenced the Lords Temporal were ab antiquo undoubtedly a part of the Commune Concilium Regni or Parliament so it may be proved if insisted upon That the Milites and libere tenentes de Regno or Angliae the Knights and Gentlemen or