by Commune assent in special of the Clergy And for this Walsinghams Neustria may be added to others in the Road and at his return he is again Crowned before the People as well as the Lords Consilio Procerum Yet Polydore with others is bold to charge his Reign with great exactions on the Clergy in special for his ransome but himself yeilded that the King did send the Bishop of Salisbury into England that by the consent of Parliament Regii Senatus Authoritate he might get his Ransome And himself yeilded that at his return there was a Parliament wherein the King thanked his People for their Faith to him and for that they had helped him in his Wars and Imprisonment And that Ejus Nutu Archiep. Cantuar. was conferred on the said Bishop of Durham and that the Chalices c. were again restored to the Churches and that the Laws with weights and measures were then also corrected or amended K. Iohn's Election must be discussed in another place Of his Military Aids Paris with Wendover is clear that they were granted in and by Parliament Convenerunt ad Colloquium apud Oxoniam Rex magnates Angliae ubi concessa sunt Regi Auxilia Militaria de quolibet scuto duae marcae dimidium Nor are the Records wholly lost of his Parliament summoned about a War with the French or rather defence against them and his Writs are known enough They speak consent of Parliament provisum est de communi assensu Archiep. Comitum Baronum omnium Fidelium nostrorum Angliae quod novem Milites per Angliam inveniant decimum bene parat ad defensionem Regni Besides the Rolls this is found in the 9th part of the great Reports and in divers others His Charter is now so well known in Print that I need not cite any clause thereof No not that so clear for the Militia Nullum scutagium vel Auxilium ponam in regno nostro nisi per commune Consilium Regni nostri Yet I may add that the Aides there excepted and called Reasonable being such by Common Law were afterwards assessed and ascertained by Parliament For which the first of Westminster may be compared with the 25 th of Ed. 3d. and in the 14 th of that King his Aides were remitted by Parliament because for his Wars he had taketh other Assistance than was due by Law which was much excused by himself and divers other Kings And for this I might cite the 48 th of H. 3d. the 25 th and 31 th of Edw. 1st the 10 11 12 and 13 of Edw. 2d the 19 th and 20 th Edw. 3 d. who did buy Souldiers rather than Press them as the Roman Historian of the declining times of that Empire Of the Barons Wars I must not speak a syllable they do deserve a discourse by themselves and it may be possible er'e long to see it Now I shall only observe that our great Charter was rather the Cause or occasion than the Effect of those Wars For had it been so kept as it was made the Crown might have rested in peace enough They which perswade others that this Charter was first created by King Henry and extorted from him only by a prevailing Sword seem not to consider so much as its Title as it now is printed where we find it granted in his 9 th year Although it was so ill performed that it needed confirmation afterwards Matth. Paris is very clear and plain in this that it was wholly the same or exactly agreeing with that of K. Iohn in nullo dissimilis Nay he speaketh of K. Iohns Charter quas sponte promisit Baronagio Angliae and again in K. H. 3 d. sponte liberaliter concessit And the Popes Letters tell us of K. Iohns Charter granted most freely Liberaliter ex mera spontanea Voluntate de Communi consensu Baronum suorum c. Besides the very words in one of those Charters spontanea voluntate nostra dedimus concessimus pro nobis Heredibus nostris Libertates has subscriptas Nor were these new priviledges then first Created by him But the old Rights of the People by long and ancient Custom as we may find at large also in Wendover with Matthew Paris where they are not only Antiquae Leges consuetudines Regni but we are also told they did present the great Charter of H. the first with his Laws and St. Edward's And to these the Barons sware as the King had also done before For so we read their Covenant was that if the King would break his Oath a juramento proprio resilire which they had some cause to believe or suspect propter suam duplicitatem yet they would keep theirs and would do their best to reduce him to keep his Virgil is also clear in this who telleth us K. Iohn's Troubles and proceedure from his not restoring K. Edw. Laws as he had promised And that the Barons urged him ut promissas tandem aliquando Lege daret and again they ask for their Antient Customes vetera instituta quibus olim Reges Pop. Angl bene rexissent and the close is quae ille prius recepisset se sanctissime observaturum And for Henry the Third the same Author affirmeth that instead of his granting ought that was new the People granted him that grand Prerogative of Wardships which that King accepted with many thanks adding also that the People did not intend it for his Successors But of this I may speak in another place I shall now only adde that if there be not yet enough said from all the Saxon Laws and Histories with the first Norman Confirmations and Explications to assert the Great Charter to be more Antient for its matter than K. Henry or K. Iohn I shall only desire those that are yet unsatisfied they would please to peruse the 2 d. part of the Great Institutes or at least so much of it as speaketh of H. 3 d. and Edw. 1st And it may be they will not wonder that at the Prelates motion that Bastards might inherit the Parliament at Merton cryed out so loud nolumus Lages Angliae mutate c. To which also besides the late Declarations of this Parliament and the Petition of Right may be added the Learned arguments of those Grave and Honourable Judges to whom we shall ever owe so much for standing up in an evil day for Truth and Common Justice in the Case of Ship-money Sir Richard Hatton Sir George Crook and Sir Iohn Denham with the truly Noble Oliver St. Iohn Lord Chief Justice of the Common Pleas. Their Arguments are now in Print by publick Command Nor may I presume to add a word in that subject Nor shall I speak of the times following the great Charter which was confirmed more than thirty times in full Parliament with many special Provisions for the Militia It being most just and reasonable that what did so much concern all should be considered by all Quod omnes tangit
It cannot be expected that I should shew the Original of all Changes or Distempers in this Kingdom It is work enough to shew our first Mould or Constitution yet for this also it cannot be doubted but the Barons Wars and Power might gain upon the Commons more than on the King he had such Bounds before that he could hardly be obliged more or capable of granting much but what was due before to all his People But it might be easie for the Potent Lords to grow upon the Commons in the Name of Barons In that Name I say for I cannot determine but the old Barons being the great Freeholders and the Lords of all the Manors that have left their Names in our Courts Baron had by Law and Reason much more Power than had the Kings Patentees Created Barons by Patent or Writ But this new Creation did but multiply the Iudges or the Kings Councellors for by so taking their Commission from the King they were only as other Judges in Inferiour Courts and so did really lose their great Power of Iudging which was proper only to those who were the Kingdoms Peers and Iudges So that these Lords did justly admit the Commons or rather were admitted by the Commons into the grand Iudicature and it may be that as the Barons did communicate their Power Iudicial so the Commons might communicate their Legislative unto those who had the Name but little of the Nature of the old Barons by Tenure yet by so doing they might bring Confusion or an harsh Discord into Natures Harmony But the main occasion seemed thus the King was tyed by his Coronation Oath to hold keep and defend the just Laws and Customs chosen by the Commons Iustas Leges consuetudines quas vulgus elegerit and this Limitation of Iust seemed to admit of reason or debate so much as might convince the Laws required to be Just for else I know not that the King was ever tyed to them And because he was or might be an Infant he had still a great Council about him to discuss the Laws proposed by the Commons and for this Cause he did and by reason might Summon the Lords or any other Wise and good Man he knew to come and give him Counsel as the Writ speaketh to the Lords and Iudges c. De quibusdam arduis nobiscum tractaturi Concilium impensuri So we find the old Acts passed per Consilium Baronum as we might shew in all Ages And because he used to demurr at Bills till he had the Advice of his great Council hence it may be for more Compendium the Bill was sent up first to the Lords as the Kings Counsellors and if they Counselled him against it then he answered Le Roy s'avisera The King will yet be farther Advised for he did not and I think he could not give a denyal nor of old perhaps Demurred till the Lords advised him against it I dispute not how much the Commons might oblige the Commons without assent of Lords or King Nor have I yet said that in the Coronation Oath the Commons Just Acts are called Laws and to Mould them may be works distinct enough and the plain truth is his Oath is to hold and to keep and to defend the Commons Laws à Tenir Gardir Les Defenderer per se tenendas protegendas as well as to Grant or to Confirm However I do not see either by Reason or Law That the King was so obliged to the Judgment of his own created Lords and there be few or none others left in England that he might not be convinced by the Reason of the Commons either without or against the Lords And beside divers Ordinances without any of the Lords it cannot be denyed but in Divers ages there were Acts of Parliament made without or against all the Lords Spiritual which yet often were the Major part of the Lords House and had as good it may be better Votes as Barons by Tenure than had all the other Lords by Writ and Patent only which might make them Judges or Councellors much rather than Law-makers I should still be far from desiring to obtrude my own Fancies or Opinions upon any least of all to the wrong of others Therefore if any can produce a better Title my Petition is they may be heard and may receive their Just Rights and Priviledges But if this be true which I now only propose and submit to better Thoughts and Judgments then had the Lords of late but a Right Consultative of making Laws And besides all that was said before this seemeth one Reason why our Ancestors did so willingly follow the Vice of Nature in placing the Power Legislative Iudicial and Executive in three distinct Estates as in Animals Aerials Etherials or Celestials three Regions and three Principles in Naturals that so they might be forced to consult often and much in all they did And if this frequent Consultation were retained and observed still it might not only occasion good Reviews but also prevent That which to the Common-wealth I fear and not Alone to private Persons may be sometimes prejudicial in a sudden Vote or Act of one House or one Body and yet one may be better much than Many if they be not good It must be granted that in Bodies of the Best Complexion and Composure here below there may be such Distemper and such Gangrene in some Members that it may be more than fit to cut it off Nay what was best may come to be the worst in Putrefaction That it may be meer Necessity to bury it although it were as Dear as Sarah was to Abraham or set on high by him that raised up the Brazen Serpent which see e're long lye buryed with this Epitaph Nehushtan And to all that is truly Just the Commons of England will not need to plead a bare Necessity for by Law and Reason too it may be said and proved I believe That both the King himself who chooseth by his Writ and All the Lords by several Votes have left the Legislative power so to the House of Commons that they had a Legal Right to do what all the Kingdom and Common-wealth of England Justly could But They are Men and therefore may be much unjust Nay where the Thing they do is Iust They may be much or most unjust I have neither Calling nor Ability to Judge them Nor may I act with force against them for whate're I think Unjust No not if I should think they did Usurp the Crown For if the Law Reports and Books deceive me not it hath been Judged Treason and so is for Private Men to rise conspire or Levy War against one that Usurps the Crown and Rights thereof except it rightly were declared Usurpation or that others should or might oppose him that did so Usurp Of which the Reasons may be Great and obvious Let me then suppose any one Man of all the Commons in Parliament for I will not
call it and the Barons of Wars Or the time of the great Charter For since that time the Rolls and Printed Acts are every where much larger and much better than my little reading or my leasure can present them Two words have sound of horror to the People who are taught to think them both oppressions and the sins of him they call the Conqueror Dane-geld and the Book of Dooms-day Some have added Curfeu with I know not what to make poor Children quake These have been proved to be long before the Normans coming in To that of Dane-geld I may add that good King Edward did also retain it to his Coffers when the Danish Storm was over till he saw the Devil dance upon it As the Crouland Abbot doth Record But it did rise from one to three to four to six shillings on the Hide but so by Parliament as may be much collected from the 11th Chap. of King Edwards Laws compared with Florence of Worcester Hoveden Huntingdon Math. Paris and Math. of Westminster besides some others which we must produce e're long And to say nothing of eleemosyne pro Aratris of which Canute and Ethelred it is clear in King Ethelstanes Laws that single Hides or Ploughlands in England were to maintain two Horsemen with Arms by Act of Parliament And this was more it seems than ever was King Williams Hydage or Dane-geld Which may be added to King Ethelstanes Militia as also his Doom book for all Judgments in one Form of which his Laws speak to what is said of Booca Doom But to King Williams Doomsday I shall now add to what before that besides the Mirror and Fitz-Herberts N. B. with the old Abbot of Crouland There is enough in every segment of that Roll to make one know it was a Review and little but a Review of what was done before They do abuse us else that bid us read the T. E. R. in all that Roll Tempore Edwardi Regis plain enough sometimes without all Divination That it was also confirmed by Parliament may be clear enough from the many exemptions a servitio Regis and a Vice-comit Nay to some inferiour places as Ely and Worcester Besides old Crowland which was not exempted from such service till the latter Saxon or first Normans time though Ingulph spake of divers Ethelreds But the same Abbot will tell us that this Doom Book was now also made juxta Taxatorum fidem qui Electi de qualibet Patria c. And that his Taxors were both kind and merciful non ad verum pretium nec ad verum spatium c. So preventing future Burthens and Exactions Talem Rotulum multum similem ediderat quondam Rex Alfredus c. But Alfreds own Will seemeth to carry it higher Nor was Ingulph's favour at the Court altogether useless for by that we come to know that our Norman King even in little things proceeded by a Great Councel So that our Abbots Charters must be viewed by Parliment Coram Domino meo Rege ac universo Concilio c. Thence he brought St. Edward's Laws as was observed before Huntingdon and Matthew Paris with Matthew of Westminster spake of his Hydage and Dooms-day as done with great Advice and Justice Misit Iusticiarios per unamquamque scyram inquirere fecit per jusjurandum quot Hydae i. e. jugera uni Aratro sufficientia per annum essent in unaquaque c. Nor are they wholy silent of his Parliaments Cum de more tenuisset curiam suam in Natali ad Gloucestriam and again at Winchester the like at London in another season Tilburiensis telleth us that Mony was paid to the Crown by Cities and Castles that used no Tillage But from the Land or Farms only Victuals till Henry the first And when the Kings foreign Wars did make him press for ready Mony the people murmured offering their Plowshares Horum igitur Querelis inclinatus Rex by advice of his Great council definito magnatum Concilio he sent out discreet prudent men that upon view of all the Lands should assesse the sums which the Sheriffs were to pay into the Exchequer This Gervase lived a while after King William Florence of Worcester near his Reign he telleth us of a Great Councel at Winchester And again of another at a place called Pedred not only by the King arch-Arch-Bishops Bishops Earls but also primatibus totius Angliae a full Parliament for which Florilegius and Walsingham Newstria may be considered with Hoveden following Wigornens That in his Reign there was an High Constable of England ceasing in Henry the Eight appeareth by the Parliament Rolls of Edward the Fourth but Alfigar in the Book of Ely was such in St. Edwards time and to Him some ascribe the Constable of Dover with the Warden and Priviledge of the Cinque Ports with their Hamlets or Circuit including Rye and Winchelsey But all this speaketh Parliament as doth also his New Church Priviledge Communi Concilio Archiep. Episcop Abbat omnium Principum Regni mei Yet to be seen not only at Sir Robert Cottons Jewel House but among the Rolls with King Richards Charters for the Dean and Chapter of Lincoln This exemption of the Church from Seculars c. is the more considerable because it came up with the Norman King at the time of Hildebrand whose Letters missive came hither ad Willielmi Regis Concilium And that this Councel was a full Parliament appeareth by the Charters as I may call them of the Arch-Bishop of York ex praecepto Papae Gregorii 7. and Confirmatione Domini Willielmi Regis sub Testimonio Universalis Anglorum Concilii c. Of which Roger Hoveden is clear telling us also that this King summoned the Arch Bishops Bishops Abbots Counts Barons Vice Comit. cum suis Militibus were these Knights of Shires To this I may add from the Continuer of the Saxon Chronology that Lanfranc came hither from Caen on the Kings call and the Popes Command primatum Regni Anglorum in Ecclesia Cant. suscepit eligentibus eum Senioribus cum Episcopis principibus clero Populo Angliae in curia Regis a very clear and full Parliament Nor may I so wrong our Common Law as to detain that antient Record which the great Judg in his Reports citeth of a Writ of Right brought by this Lanfranc against Odo Bishop of Bajeux and removed by a Toll into the County Court where the King commanded all the good Lawyers to attend the County a toto Comitatu Recordatum atque judicatum est That as the King held his Lands in His Demesn in Dominio suo so was the Arch Bishop to hold his omnino liberas quietas in Dominiquo suo which Judgment was afterward confirmed by the King and Parliament cum consensu omnium principum suorum With which Record I may compare the old Manuscrips in Bennets Coll. Cambridge telling us of a great Moot magnum placitum in loco qui dicitur Pinenden in
quo Lanfrancus diratiocinatur and the conclusion that he was to hold his Lands and Customs by Sea and Land as free as the King held his ezcept in three things si regalis via fuerit effossa arbor incisa juxta super eam ceciderit si homicidium factum sanguis in ea fusus fuerit Regi dabit alioquin liber a Regis exactoribus In the same Author were read of a Great Counsel at London in that Normans Reign and of another at Glocester where the Arch Bishop of York jubente Rege et Lanfranco consentiente did consecrate William Bishop of Durham having no help adjunctorium from the Scottish Bishops subject to him which may be added to that before of Scotland belonging to the Province or Diocesse of York Nor can I abstain from the next paragraph in the same Author how Lanfranc did consecrate Donate a Monk of Canterbury ad Regnum Dubliniae at the Request of the King Clergy and people of Ireland Petente Rege clero populo Hiberniae which with divers others might be one Argument for the Antiquity of Irish Parliments and their dependance on England long before King Henry the Second For which I might also cite King Edgars Charters Oswalds Law and divers Historians of his times But the Charters mention Dublin it self and yet our Lawyers are so Courteous as to free Ireland from our Laws and Customs till towards the end of King Iohn and some of them conjecture that the Brehon Law came in again and that our Parliament obliged them not till Poynings Law in Henry the seventh But to return to our Norman King I need not beg proofs of Parliaments in his time at least not to those who know the Priviledge of antient Demesne which therefore is free from sending to Parliaments and from Knights Charges and Taxes of Parliament because it was in the Crowns not only in King William but before him in King Edward and the Rolls of Winchester for which the old Books are very clear with divers Records of Edward the third and Henry the fourth besides natura brevium That I say nothing of the old Tractat. de antiquo Dominico which is stiled a Statute among our English Statutes And besides all the late Reports or Records I find it in the Year Books of Edward the Third that he sued a Writ of Contempt against the Bishop of Norwich for encroaching on Edmondsbury against express Act of Parliament By King William the Conqueror and by the Arch-Bishop of Canterbury and all the other Bishops Counts and Barons of England It is 21 of Ed. 3. Mich. fol. 60. Title 7. Contempt against an Act of Parliament This might well be one of the reasons why the great Judge giveth so much credit to the old Modus of Parliament as it was held in the time of King Edward the Confessor which as the antient copy saith was by the discreet men of the Kingdom recited before King William the Norman and by him approved and in his time used I have cited it before and compared it with Irish Modus which my much honoured friend Mr. Hackewil one of the Masters of Chancery hath under his hand attested from the Great Seal and Charter of Henry the fourth which himself hath seen reciting a former Charter of King Henry R. Angliae Hiberniae conquestor Dominus who sent the same Modus into Ireland Where himself or his Son Iohn sans terre had no great work to reduce them to the civility of Parliaments To which they had been long before accustomed and the Roll saith communi omnium de Hibernia consensu teneri statuit c. nor doth the division of the Irish-Shires seem so lately setled as some have thought although I may not dissent from the great Patron of Civill and Ecclesiastical Learning the late Primate of Ireland Touching that Irish Modus I have very little to add to the fourth part of the great Institutes in several places I shall now only observe that both these old Modi of Parliaments do agree in this Custom of the Kingdom that the King should require no Ayd but in full Parliament and in Writing to be delivered to each in degree Parliament And both they agree that every new difficult case of Peace and any war emergent within or without the Kingdom vel Guerre emergat in Regno vel extra ought to be written down in full Parliaments and therein to be debated which may be considered by all that will argue the Militia To which also we may add one clause of the Jewish Laws of their great Sanhedrim to whom they retain the power of Peace and War especially where it is Arbitrary and not meerly defensive in which the Law of nature maketh many Magistrates and this might with ease be confirmed from the Laws and Customs of all Civil Kingdoms in all ages But I must not wander from our English Laws I had almost forgotten that which should be well remembred Although many would perswade us to seek our Laws in the Custumier of Normandy it is not only affirmed in the Great Reports but also asserted by Guil de Rovell Alenconien and proved by divers Arguments in his Commentaries on that Grand Custumier that the Normans had their chief Laws from Hence As had also the Danes in the time of Canute for which we might have more proof and witness than the Abbot of Crowland So much even strangers did Love and Honour old English Laws Of King William the Second Sirnamed Rufus I shall speak but little for I must discuss his Election and Coronation Oath in a fitter place Some footsteps we find of his Parliaments in divers Wigornensis and Hoveden tell us that when he would have constrained the Scottish King ut secundum judicium Baronum suorum in curia sua Rectitudinem ei faceret Malcolm did refuse to do it but in the Confines or Marches Where he could not deny but the Kings of Scotland were accustomed rectitudinem facere regibus Angliae But he then said it ought to be by the Iudgement of the Parliaments of both Kingdoms secundum judicium utriusque Regni primatum And I find the like Record cited on Fortescue from Godfrey of Malmsbury But Huntingdon and Matthew Paris also relate that the same King Malcolm did submit both to do Homage and to swear Fealty to our English King and Paris addetth a pretty Story of King Malcolms overlooking Treason But again to King William Of his Errors in Government I shall only say that if Edom did really signified Red as hath been thought I could believe that all Historians speaking of Adamites then oppressing the People might allude to the near affinity between Edom and Rufus for Red. For this was his Sirname of King William the Second Henry the First is yet alive in his Laws and Charters Not only in Wendover with other Historians but among the Rolls and Records yet to be seen in the Exchequer They are now in Print
And a while before the Abbot was made a Bishop at London petente Milone Constabulario favore Populi utriusque Ordinis that is the Lords and Commons or rather the Clergy and Laity In Huntingdon we read of Robert Arch-Deacon of Leicester about this Time Elect Bishop of Lincoln Rege Clero Populo summo gaudio annuente And a while after he shews us the King at London in a full Parliament disputing the grand question of Appeals with the Romish Legate For such Appeales saith he had not been used in England till That Henry of Winton the Legate had cruelly intruded them Malo suo crudeliter intrusit The Monk of St. Albans borroweth from him and sometimes repayeth with interests As in that Statute for Priviledge of Churches and Church-yards with all the Clergy so that none but the Pope could absolve from violence done to such in which they all agree he added also another Act of the Parliament that Plowes in the Field with Husbandmen should enjoy the same Peace or priviledge as if they were in a Church-yard His Geffry de Mandevil Consul or Comes was a very great man de magna villa For he speaks of his Princeps Militiae and of another that was his Magister peditum But in Henry of Huntingdon we find him at length clapt up in Prison but scarcely secundum jus Gentium Rex cepit eum in curia sua ex necessitate magis quam ex honestate Hoveden hath of him the like expressions adding also that from a Baron he had been raised to the degree of a Consul that is an Earl For in him the Earl of Flanders is Consul Flandrensis and the Earl of Anjou Consul Andegavensis This was he that come to be Hen. the 2d who at his Landing being Duke of Normandy coyned money which passed here by the name of the Dukes coyn Nor only he but Omnes potentes tam Episcopi quam Comites Barones suam faciebant monetam and of this Nubrigensis Which may be compared with the Saxon Laws of King Ethelstan and others As K. Hen. monetag common In the same Huntingdon we also read that by the Mediation of Theobald of Canterbury and Henry of Winton the King was so reconciled to this Duke and Earl Henry that they never more discorded also that the Duke was made Iusticiarius Angliae next under the King omnia Regni Negotia per eum terminabantur But in Polydore we find this Pacification made by Parliament Cujus Authoritate pactio facta est Matthew Paris is so full of Law Terms that I could beleive him in this to allude to the Law Fines and Recoveries For at this peace he telleth how the Kingdom was again Recovered And after a disgression to Merlins Prophesie in which the phrase of Vice-comites may be duly considered he concludeth thus a War that had raged 17 years together was now quieted by such a Time hoc fine quievit To which he adds that famous story of the Souldier that in this Vacation made a Voyage to St. Patricks Purgatory And by that occasion he relates the best description of Hell or Hellish Torments that I remember in any Historian of credit With which may be compared divers others in the same Author But that which is added at the Souldier return to the King may be added also to what is observed before touching Irelands dependance on England For the same Souldier was again sent by King Stephen into Ireland to be Assistant as an interpreter to Gilbert who had a grant from hence to found an Abbey in Ireland Whither he also carried this Souldier speaking Irish and with Tears he would often relate his Voyage to Hell Which is so recorded and asserted by divers Religious men To K. Stephen's Militia we may also refer that which so many Historians Record of his damning the Hidage or Danegeld Which yet was not his Act but the Parliaments that did Elect and create him King We must discuss it more fully ere long but now for Danegeld we may assert it to be expressed in his very Coronation Oath on which he was admitted One of the clauses was that he should for ever desist from that which had been paid to some of his Predecessors singulis annis And Wendover or Paris express no more But in Hoveden and Huntingdon Dane-geld is expresly specified which both affirm to be then at 2 s. the Hyde They agree also with others That this was again specified in Parliament at Oxford Where the King did again confirm his Coronation Oath Matthew of Westminster doth also Record that of these promises or Oaths he made a Charter which seemeth to be that Charter which the great Reporter in his 8th part affirmeth to be yet found in an old MS. de antiquis Legibus And that the said Charter among divers other things doth expressely confirm the Laws of K. Edward and of K. Henry Nay the Monk of St. Albans affirmeth that in Parliament Congregatis Regni magnatibus he did there solemnly promise to meliorate the Laws or make them better as they should desire or require juxta voluntatem Arbitrium singulorum which we may consider again upon occasion Nor must I omit that much of this very Charter is yet to be read in Print in an old Monk that lived in King Stephen Time and those particulars for confirmation of all good Laws and in special those of King Henry with divers other things that are worth perusal It is in the Monk of Malmsbury but a little after the Letters written to the Pope about King Henries death confession absolution and Anoynting by the Elders according to what was let to the Church by the Apostle St. Iames as in those Letters is more fully expressed Which may be added to that before of the Church Elders Polydore telleth us that in full Parliament at Oxford King Stephen did abolish that which had been oft exacted for Hydage per singula jugera and that he intreated another Parliament to carry on that War which by their Advise and Councel had been undertaken in the Name of Common Wealth Reipublicae Nomine vestro cum Consilio tum Consensu susceptum est and his desire to them was so to act in Person that the People might not be burthened with Taxes And at his end Virgil addeth that for all his continual Wars he did exact little or no Tribute from the People So that the Parliament it seems did wholly manage his Militia From a long Storm at Sea we are now come into a quiet Port and a calm Haven such were the Thoughts Expectations and Hopes of All in Henry the 2d We have his Laws in Print in several places and his Lawyers known enough For who needeth to be told of Glanvil in his Reign of whom before and much I might add from divers others besides Hoveden Who by occasion of that Judges Name hath not only given us a Copy of St. Edwards Laws but hath also asserted their confirmation by
tenens to the Sheriff and he standeth when the King dieth When also so many think there is no Sheriff but it may be more considered I must not stay in the Court of Peepoudres incident to every Fair or Market as a Court Baron to a Mannor although it be a Court of Record and a Writ of Error lyeth on its judgment for which Iones and Hall's Case in the 10th Part of Reports and in the 4th Institutes I need not speak of Writs of Error from the Common Pleas to the Kings Bench from the King's Bench to the Exchequer-Chamber and from thence as from the King's Bench also to the Parliament or of the known Statute of Henry the 6th making it Felony to steal withdraw or avoid Records or any parcel of Record But of no Records is the Law more punctual than in of extraordinary Cases of Oyer and Terminer which were more private oft and less fixed being transient on emergent Cases which yet being heinous seemed to require most exact Records especially because there might be Appeal so just and needful if the Judges exceeded but one tittle of their Commission If it were discontinued or expired then the Indictment and all Records were to meet in their proper Center at the King's Bench but in other Cases Records of Oyer and Terminer were sent into the Exchequer So in Edw. the 3d. As in Elizabeth Results on charitable uses and the like were to the Chancery by Act of Parliament The great Seal was the Soul to inform and actuate the Body of Records in all exemplifications from the Rolls in all Writs Pattents or Commissions and the rather also that by this nothing of moment might be hudled up but duly weighed and considered while it passed so many hands and judgments as it should before the Sealing Nor shall I add that an Act of Parliament it Self is not pleadable in a Court of Record but from Record or under the Seal whence the old custom was to remove the Records of Parliament by a Writ of Certiorari into the Chancery thence by the Lord Chancellor into the Kings Bench and thence by a Mittimus into the Common Plea and Exchequer with an usual Writ commanding all the Courts to keep and observe such Acts of Parliament which of Old were Proclaimed by the Sheriffs and were put under the Seal as we may see by the Proclamation now printed among the Statutes of Edw. the 3d. and they were not hudled into Print in those Days not of such vertue in Print as on Record and under the Seal For there were not then such Printers or Copiers that without much caution our fore-Fathers durst trust with all their Lives and Estates which by one dash of a Pen the change of a not a with a to a for or a from might be soon destroyed or enslaved Much less then should a Court of Record be Created but by Record yea and that be shewed under the Seal also For when the Seal was moulded our Ancestors ordained that no Jurisdiction should be grantable but under the Seal which should be known and obeyed by all the People as the Mirror discourseth at large In Edw. the 4th it was resolved by all the Judges in the Exchequer-Chamber that no man could be a Iudg or Iustice by Writ which was also Sealed but by open Pattent or a publick Commission But the Lord Chief Iustice of England hath of late no such Commission or Pattent yea a Sealed Writ and of Old he was also Created by Pattent till about the end of King Henry the 3d. if good Authors deceive me not It seemeth also somewhat disputable whether he were not included in the Statute of Henry the 8th for Commissions to the Judges by Letters Pattent under the Seal However the words are plain enough for Iustices of Eyre which of Old were also by Writ as those of Oyer and Terminer but now not to be but by Comission or Pattent under the Great Seal Which Commission should also be read and shewed in Court lest there be some kind of Demurrer or exception unto jurisdiction which hath been in some Cases at the Kings Bench and may be by Law to all now Judges by special Commission except it be produced under the Seal if the old Books deceive us not who do do not onely ascribe all jurisdiction to the Seal but in all legal exceptions ever admit of that to the Iudg if he be a Party or have not jurisdiction or be otherwise incompetent That the Parliament also will never Erect or Create any Court of Record but by Record and open Commission under the Great Seal I do the rather believe because the Seal is so proper and peculiar to the Parliament being made by common consent of which the Mirror and others at large and by such common consent used and committed to the special care of the Chancellor or Lord Keeper of England as he was called for keeping that which our Fathers esteemed as the Kingdoms Key or Clavis It is well known how King Henry the 3d. was brought to acknowledg That among all great Officers the Lord Keeper or Chancellor did especially belong to the Choice of the Parliament and Ralph Nevil among others refused to yield up the Seal to the King when it was demanded saying that he had received it by the Common Councel of the Kingdom and without their Warrant he would not deliver it of which both Matthew Paris and Matthew of Westminster From the continual use of this Seal in Parliament it is the Law and Custom of the Kingdom that the Lord Keeper shall have place in Parliament still to be there with the Sael although he be often no Peer and have no Vote but for making and Sealing of Charters Pattents Commissions and Writs framed by Parliament For although the Register made or continued by Parliament be now so full that there be little need yet the framing of New Writs was a great work of Old Parliaments as appeareth in the Books and Statutes as in that of Westminster the 2d de Casu consimili And as if the Parliament had made no Laws at all but onely New Writs the Old Modus brancheth out all the Laws of Parliament into Originals Iudicials and Executives which all know to he the Division of Writs Those especially de Cursu drawn by the Cursitors for Brevia Magistralia were let to be framed by the Masters of Chancery as appeareth at large in Bracton and Fleta and in the Oath of the Six Clerks or other Clerks of Chancery in Ed. 3 with that of Ed. 1. de casu continili in which Statute it is asol provided that if the Masters could not agree in framing such a new Writ they might if they saw cause respit the Parties till the next Parliament that so it might be formed by Advice of all the great Lawyers of the Kingdom Yet besides this of making and sealing of Writs there was another work and great use of the Masters of Chancery
In the Conquest about Investitures K. Henry the first wrote to the Pope that he could not diminish the usual Rights and Dignities of the Crown or Kingdom and that if he should be so Abject as to attempt it his Parliament would not permit it Optimates mei totius Angliae Populus id nullo modo pateretur In the great Moot of Scotlands dependance upon England Edward the First confessed as much to another Pope to whom also the Parliament both Lords and Commons wrote that they they were all obliged by Oath to maintain the Just Rights Liberties Laws and Customs of the Kingdom where we may see their Oath of Allegiance to the Kingdom that nothing should be acted against Them In exheraeditionem Iuris Coronae Regie Dignitatis ac subversionem status ejusdem Regni nec non praejudicium Libertatum Consuetudinum Legum Paternarum These are on the Rolls and printed on the Statute of Merton and in Walsinghams Edward 1. and the Surveigh of Normandy And from other Records of the same King we learn that when the Pope demanded the Grants of K. Iohn he answered That he could not do it without consent of his Parliament Sine Praelatis Proceribus Regni being tyed by his Coronation Oath to keep all the Laws and Rights of the Kingdom Illibati and to do nothing that might touch the Crown without their Consent Which may be added to that before in St. Edwards Laws of the Kings Oath to do all things Ritè per Concilium Procerum Regni When the King of France demanded Homage of K. Edw. the Third he desired Respite till he had the Advice of his Great Council as we may read in Froizard because he could not act without them in such great Affairs And when the Pope demanded Homage of the same King he referred it to Parliament who adjudged and declared that K. Iohns Grants to the Pope were unjust illegal and against his Coronation Oath being done without his Parliaments Assent or Counsel And yet K. Iohn's Charter to the Pope in Matth. Paris doth pretend it done Communi Concilio Baronum And about Stephen Langton the same K. Iohn did write to the Pope that he could not depart from the Liberties of his Crown but would or should defend them to his Death And hence began the Great Excommunication which begot a Confiscation of the Church Revenues hinc ille Lachrymae which could not be stopped till the Crown did stoop to Pandulph which might have excused the poor Hermit Peter from being so cruelly dragged from Corf◠Castle to Warham But when the same King felt his Arms loose he laid about him so that all believed he meant to strike In that Meen the Arch-bishop told him It was against his Oath to raise or make War without the Consent of his Great Court Si absque Iudicio Curiae suae Contra quempiam Bellum moveret to be added to the Militia But the fire was already kindled and the Smoak or Flame brake out at Nottingham I must not touch the Barons Wars except I had leisure to discourse and discuss them freely Only as we found our Great Charters made up of old Laws and Customs so I might now also clear it more that it was not a new Fetter on the King to have some Supervisors set about him for to order all his Actions who by his Coronation Oath was tied to do nothing touching the Kingdom but with Advice and Consent of the Great Council per Concilium per Iudicium Procerum Regni That it was so also among the Britains to all observed before I might add the Old Scottish Custom of choosing Twelve Peers in Parliament to be the Kings Tutors as we may call them for by them the King must be wholly governed Quorum Concilio Rex Regnum gubernare debebat as we may read it in Walsinghams Edward 1. besides their own Chronicles that I say nothing of the Twelve Brittish Peers of which Cambden in Siluribus We need not much wonder at the Writs in K. Iohn's Time requiring all Men of all Conditions to oblige themselves by Oath to maintain the Great Charter and to compel the King thereunto Et quod ipsum Regem pro posse suo per Captionem Castrorum suorum distringerent gravarent ad praefata Omnia Exequenda when as this very Clause was in his Charter Et illi Barones cum Communa totius Terrae distringent gravabat nos modis Omnibus quibus poterunt scilicet per Captionem Castrorum terrarum possessionum aliis modis quibus potuerint donec fuit emendatum secundum Arbitrium eorum Which may be added to that before of our Allegiance or Oath of Fealty to the King with the Kingdom and of the Kings Oath to be guided by the Judgment of his Great Court. Nay as if K. Iohn's Salva persona N. Reginae N. Liberorum N. had been too loose in K. Henry's Charter it was expressed thus Licet Omnibus de Regno N. contra Nos insurgere Nay and to do all things quae gravamen nostrum respiciant ac si nobis in Nullo tenerentur These times seem not to attend our Grand Maxim of State The King can do no wrong or at least they understood it not as some late Courtiers would perswade us Yet it is true he can do nothing but by Law and what he may by Law can do no wrong And if he do against the Law his Personal Acts Commands or Writing do oblige no more than if they were a Childs And the Books call him an Infant in Law though his Politick Capacity be not in Nonage as the Parliament declared in Edward the Sixth which is not to exempt him from Errors or to excuse his Crimes but to shew that he must be guided by his Council and that his own Personal Grants or Commands cannot hurt any more than an Infants which may be reclaimed and recalled by the Council of the Kingdom So the Mirror saith The King cannot grant a Franchise to prejudice his Crown or others because he holds his Right and Dignities but as an Infant Cap. 4. Sect. 22. If I should say The Commons in Parliament are and were the Kingdoms Peers as well as the Lords I might vouch an Old Authority as good as the Ancient Modus of Parliament which doth often call the Commons Peers of Parliament as well as the Lords So debent Auxilia Peti pleno Parliamento in scripto cuilibet graduum Parium Parliamenti oportet quod omnes Pares Parliamenti consentiant duo milites pro Comitatu majorem vocem habent in Concedendo contradicendo quam Major Comes Angliae c. So in doubtful Cases of Peace and War disputetur per Pares Parliamenti and if need be Twenty five shall be chosen de omnibus paribus Regni which are so specified Two Bishops Three Proctors Two Earls Three Barons Five Knights Five Citizens and Five Burgesses And again Omnes Pares