cause of Complaint being removed and his Estate in Ireland having received great damage from his Enemies he left Leolin to Treat for himself and his Friends and went over to Ireland where he was slain by Treachery The Treaty went on and among the terms it was provided That all Men on the one side or the other Rot. Claus 18. H. 3. N. 17. dors Homines etiam illi qui hinc inde recesserunt a fidelitate dominorum suorum se tenuerunt ex adversa parte libere revertantur Rot. Claus 18. H. 3. N. 20. dors who had receded from the fealty of their Lords and adher'd to the adverse Party should return with freedom And in the Credential Letters which were sent to Leolin with them that managed the Treaty on the side of King Henry He gives him to understand That before that he had restor'd the Lands to all people who had been disseiz'd by occasion of the War between him and the Earl Marshal where 't is far from being call'd a Rebellion on the Marshal's side and at the time of the Treaty the King found himself obliged to protest that he was clear of any consent to the Death of the Marshal and that his Seal was by the great importunity of his evil Counsellours set to Letters which encouraged the Treachery against him and pronounc'd him a Traytor But that he was wholly ignorant of the Contents of them Vid. Matthew Paris The Clergy the Historians the People of that Age in all things extol the Marshal would never allow him to have been a Traytor and were not his own Defence of himself too long to transcribe I should add it as an embelishment to these Remarks Dugdale's Baronage o Vol. 1. f. 752. Simon 16. H. 3. bore the Title of the Earl of Leicester and obtain'd from Almaric his Brother then bearing the Title of Constable of France a grant of all the Lands in England with the Stewardship of England This came to the Earls of Leicester with the Honour of Hinkley in Leicestershire from Petronil Daughter of Hugh de Grentesmenil Vid. Mat. West 20 H. 3. Simon Montfort holding the King's Bason at his Nuptials as Steward of England The Fourth War was that under the Great Simon Montfort Earl of Leicester another Tribune of the People as he was hereditary High Steward by Purchase from his Brother Almaric Constable of France the Stewardship of England having descended from their Mother Amicia eldest Sister to Robert Fitz Parnel Earl of Leicester who died without Issue Mat. Par. f. 1302. Whoever reads the History of H. 3. must needs conceive a mean opinion of him his Cowardise was as remarkable as that of one of his Successors who is said not to have been able to contain at the sight of a drawn Sword nor could H. bear the terrour of Thunder and Lightning yet when Simon Montfort endeavoured to remove one of his frights Quod scilicet Comes Leycestriae virilius perstitit ferventius in persequendâ provisione ut saltem Regem omnes adversantes suis astare consiliis cogerent c. he confest to him That he fear'd him most Which was suspected to proceed from Montfort's warm and strenuous pursuing the Provisions at Oxford at least his being for compelling the King and all opposers to stand to the Counsel of his Barons Simon thinking the execution of the Oxford Provisions to be well secur'd Fol. 1314. went beyond Sea upon which Richard the King's Brother prepar'd to come into England with intention and hopes as it should seem to get them vacated as being made without consulting him But the rest of the Barons tho' they were in great fear because of Simon 's absence Ib. f. 1315. Juramentum quale Barones Angliae reipub Zelatores exigebant would not suffer Richard to Land till he had oblig'd himself under his hand to take such an Oath as the Barons of England who were zealous for the Commonweal or Publick-good required the form of which follows I Richard Earl of Cornwal will be faithful and diligent to reform the Kingdom of England with you hitherto too much deform'd by the Counsel of Evil-men And I will be your effectual helper to expel the Rebels and disturbers of the said Kingdom Notwithstanding the seeming agreement between the King and People and Security taken for his performance Foreigners invited and supported by him became an intolerable burden and the King being kinder to them than to his People obtain'd from the Pope an Absolution from his Oath Mat. Par. F. 1322. to make good the establishment at Oxford But the Barons resolutely insisted upon the Establishment and when the King sent Itinerent Justices into Herefordshire Ibid. the Barons of that County would not suffer them to execute their Office there as being contrary to the Provisions at Oxford which contrariety seems to lye in the King 's directing enquiries of misdemeanours to be judged of in the Countries when according to what was then Enacted the Inquisitions were to be return'd before the Parliament or at least such Council as was chosen in a Parliament But the King having procur'd an Absolution from his Oath thought himself free to act by the Counsels of Foreigners which his Great men would not bear Wherefore the Earl of Leicester and others met together in Arms at Oxford resolving either to dye for the Peace of their Country F. 1323. or to drive out the Foreigners The Foreigners met at the same place but finding themselves out-number'd and that the Lords were resolv'd to call them to account for their violations of the Government and make them swear to observe with them the Provisions made for the profit of the Realm they fled away by Night but were pursued by the Barons and forc'd to quit the Land Yet soon after this the King as the Historian says Anno 1260. 44 H. 3. 45 H. 3. by the evil Counsel of some fell from the pact which he had made with his Great Men betook himself to the Tower of London and compell'd the Citizens to swear to be true to him without regard to the terms before setled and rais'd what Forces he could Whereby it is evident That he began the War and that it was an open violation of his Contract made with the people at Oxford The Barons took Arms against him in their own defence F. 1331. Communiter prestitum and sent Messengers to him to entreat him to observe the Oath which had been sworn to by all Which Message he slighted at first but afterwards was prevail'd upon to consent that he should chuse one and the Barons another to arbitrate their differences the Arbitrators having power to chuse an Vmpire but that this should be respited till the King's Son Edward came from abroad When his Son came home he was so fully convinced of his Father's being in the wrong that he joyn'd with the Barons and they resolv'd together to drive
been split into the Constable Chancellour Treasurer and the Grand Maistre du France or Count du Palais which he seems to resemble to an High-Steward with us The Author of the Sighs of France shews Les soupirs Mem. 7. p. 167. that when Childebert was chosen King they chose Grimoald for Maire du Palais And says he Through all our History we may always see a very clear distinction between the Officers of the King's House and those of the Crown This distinction remains to this day as a Monument of the Ancient Liberty of the French For we say the Great Master of the King's Houshold the Great Chamberlain c. But we say the Constable of France the Admiral of France the Chancellour of France And these last Charges do not dye with the King whereas the Officers of the King's House dye with the King and may be changed by his Successour The Reason of this difference comes from this That that which is given by one King may be taken away by another But the Officers of the Crown being made by the People and by the Realm cannot be turn'd out by the King alone And it is very remarkable that these Offices of the Crown which the States of the Kingdom may give and which they alone can take away may extend to the whole to the War to Justice and to the Finances or Treasury In a Book published in Queen Mary's Reign which at least went under the name of Bishop Poinet one of our Confessors History of Passive Obedience p. 38. who fled to Germany from the Marian Persecution such a Power as is above mentioned is affirmed to have belong'd to the High Constable of England Treatise of Politick Power Anno 1556. As God says the Author has ordained Magistrates to hear and determine private Matters and to punish their Vices so also will he that the Magistrates doings be call'd to account and reckoning and their Vices corrected and punished by the Body of the whole Congregation or Commonwealth As it is manifest by the meaning of the Ancient Office of High-Constable of England unto whose Authority it pertained not only to summon the King personally before the Parliament or other Courts of Justice to answer and receive according to Justice but also upon just occasion to commit him to Ward Theloal in his Digest of Writs Printed in the year 1579. 21 Eliz. Collects what is in the Year-Books concerning Summoning the King Theloal's Digest tit Roy. p 71. This was H. 3. Vid. 22. E. 3. f. 3. b. Trin. 24 E. 3. f. 55. b 43 E. 3.22 a. Wilby Justice Fuit dit H. 22 E. 3. que en temps le Roy Henry devant le Roy fuit impled come serroit autre home de people Mes Edward son fits ordein que home sueroit vers le Roy per petition Et issint dit suit T. 43. E. 3.22 que en temps le Roy Henry le Roy ne fuit mes come comune person car a ceo temps home averoit brief d'entre sur disseisin vers le Roy touts autres maners d'actions come vers auters persons c. Et Wilby dit T. 24. E. 3.23 que il avoit vieu tiel brief Precipe Henrico Regi Angliae c. En lieu de quel est ore done petition pur sa Prerogative It was says he held Hil. 22 E. 3. that in the time of King Henry and before the King was impleded as any other Man of his people but Edward his Son ordain'd That a Man shall sue to the King by Petition And so it was said Trin. 43 E. 3.22 That in the time of King Henry the King was but as a common person for at that time a Man might have a Writ of Entry upon Disseisin against the King and all other manner of Actions as against other persons c. And Wilby said Trin. 24 E. 3.23 That he had seen such a Writ Precipe Henrico Regi Angliae in lieu of which now a Petition is given for his Prerogative Sir Robert Cotton of the Constable of England MS. in the Herald's Office It may be difficult to distinguish between the Office of the Earl of Chester and the Constable of England who as Sir Robert Cotton held is Second to the King and has the Custody of his Sword the carrying which as appears by Matthew Paris belonged to the Earl of Chester by reason of his Palatinate and yet at the same time Humphrey de Bohun Earl of Hereford Constable of England was in full possession of his Office Dugdale 's Bar. 1. Vol. f. 180. 11 H. 3. he stood up with the Earl of Chester and others on the behalf of Richard the King's Brother and was alive and in England 20 H. 3. when the Earl of Chester carried the Sword as of Ancient Right so that one seemed to have the right to carry the other to keep the Sword The Office of Constable seems to have been no ancienter than the the time of W. 1. Vid. Patent to Earl Rivers Temp. E. 4. Vid. 2 d. Part. to which the Patents for the Office refer but the Earldom of Chester and its Rights were Ancienter Wherefore one would think that W. 1. erected the Office of Constable to ballance that of the Earl Palatine Sir Rob. Cotton Of Constable c. MS. sup The other Great Officers the High-Steward and Marshal are easily distinguishable from the Constable and as Sir Robert Cotton observes the Office of Constable was of Military that of the High-Steward of a Civil Jurisdiction The Marshal was in the nature of an High Sheriff Vid. Stat. 3. R. 2. Stat. 1. C. 2. Of the Constable and Marshal Flet. lib. 2. c. 60. Of the Steward and Marshal So Ryle 's Placita Parl. f. 126. 21 E. 1. Selden 's Bar. 2 d Part c. 5. f. 739 F. 743. to see to the Execution of the Process and Judgments of either and yet had a Judicial Power with both In some Cases all three acted with joynt authority as appears by the most Ancient Copies of the Modus tenendi Parliamenta which tho' it has been put into Latine since the Conquest and has the names of Things and Offices adapted to what was known and in use at the time of the Translation from the Saxon MS. yet certainly for substance gives a true account of what was before the Conquest Mr. Selden supposes it to have been no ancienter than about the time of E. 3. yet confesses that he had from Mr. Hackwel a Copy of an Inspeximus 12 H. 4. Exemplifying under the Great Seal most of the particulars that occur in the ordinary Modus for England fitted for Ireland as sent thither by H. 2. but it would have been very strange if there should have passed an exemplification under the Great Seal of what was a meer fiction The Modus says Modus tenendi Parl. Cum dubitatio vel casus difficilis pacis vel
guerrae emergat c. Vid. Append. When any doubt or difficult case of War or Peace happens in the Kingdom or without let that Case be referr'd and brought in Writing into full Parliament and let it be treated of and debated among the Peers of Parliament and if need be let it be enjoyn'd by the King or in his Name to every degree of the Peers That every degree act by its self and let the Case be delivered to their Clerks in Writing and in the said place let them cause the said Case to be recited before them so that they may consider among themselves how it may in the best manner and most justly be proceeded upon as they would answer before God for the Person of the King and their own proper persons and also the proper persons of them whom they represent And let them report in Writing their Answers and Advice that all their Answers Counsels and Advices on all sides being heard it may be proceeded upon according to the better and more wholesom Counsel But if the Peace of the Kingdom or the Nation People or Commonwealth be weakned by reason of discord between the King and other Great Men so that it seems to the King and his Council What that Council was vid. 2d Part that the matter should be treated of and amended by the consideration of all the Peers of his Kingdom or if the King and Kingdom are disturbed by War or if a difficult Case arise before the Chancellor of England or a difficult Judgment is to be given before the Justices and the like And if it happen that in such deliberations all N 2 a Remedy where equally divided or at least the greater part cannot agree then the Earl Steward Earl Constable and Earl Marshal or Two of them shall chuse Twenty five persons from all parts of the Kingdom viz. Two Bishops and Three Proxies of the Clergy Two Earls and Three Barons Five Knights of Shires Five Citizens and Five Burgesses who make Five and Twenty Et condescendere in eos and they Five and Twenty may chuse Twelve out of themselves and be concluded by what they do The Twelve may chuse Six and be concluded by them The Six Three and be concluded by them But the Three cannot be reduced to fewer without leave of the King And if the King consent the Three may be brought to Two and the Two to One and so at last their Ordinance shall bind the whole Parliament and so by coming from Twenty five to One if the greater number cannot agree to an establishment at last one Person as is said shall Ordain for all because he cannot disagree from himself saving to the King and his Council That they may examin and amend such Ordinances after they are written if they can and will Provided they do this upon the place in full Parliament and with the consent of the Parliament and not out of Parliament According to which the High Steward Constable and Marshal being looked on as Hereditary Officers were entrusted with a means of composing the differences of the Nation when they should happen to be equally divided I find the Authority of the High Steward and Constable more express in a Translation of another Modus tenendi Parl. agreeing in substance with that which I have cited The MS. which I have used seems to be of the time of H. 7. MS. penes Authorem MS. penes Authorem thô Mr. Elsing says That which is in Sir Robert Cotton's Library was written temp E. 2. The Translation of the other was Printed with Royal Privilege in King James his time as I take it It was done in a very pedantick stile by one Anthony Bustard of Lyons-Inn He that wrote the Latine in his Preface speaks of it as the Order setled by W. 1. Pref. That Modus places the Power of chusing the Twenty five in the Steward and Constable It adds That if any of the Ministers act contrary to their Duty the King the Steward and others of the Parliament may remove them from their Office And says particularly That the Steward of England with the Constable and Nobles of the Realm shall send to evil Counsellors willing them to desist from giving Counsel and entreat the King not to listen to them and if they regard not such advertisement they were to send to the King to put such away from him And if King and Counsellors neglect such wholsom Advice then for the safety of the Commonwealth it hath been thought fit and lawful for the Steward and Constable and Nobles and others of the Commons of England with the King's Banner displayed the King's name omitted the said Counsellors to take and keep in Custody till the next Parliament and Seize their Goods Vid. Append. Lands and Hereditaments until they receive Judgment by consideration of the whole Parliament Sir Robert Cotton Of the High Steward c. There is no more in this than is warranted by Sir Robert Cotton's Letters in the Herald's Office part of which seem to be taken from a MS. joyn'd to the Modus in his Library under the name of Fleetwood The High-Steward's Office as I have before observed was annex'd to Land 4 Inst f. 127. Dyer f. 285. b. Kelway f. 170. and so was the Constable's of England as appears by our Law-Books in the Case of the Duke of Buckingham 6 H. 8. who pleaded That Humphrey de Bohun formerly Earl of Hereford was seiz'd in Fee of the Mannors of Harefield Newnam and Whitenhurst in the County of Glocester and held them by the service to be Constable of England which the Judges allowed of as a good Plea Dyer Indeed they held that thô the King might compel him who had the Land at his pleasure to execute the Office so he might at his pleasure resuse to have it Executed But as to that this being an honorary and profitable tenure by Grand Serjeanty it is to be considered 12 Car. 2. c. 4. that the Stat. 12 Car. 2. when it took away those Tenures of the Crown which were burthensom to the Subject provided that it shall not take away the Honorary Services of Grand Serjeanty But H. 8. Dyer thought it sufficient that he disclaimed the Service and the Reason of the disclaimer was because it was very high and dangerous and very chargeable to the King in Fees the last part of which shewed the Subject's property concerned in the question Upon the Duke of Buckingham's claim to this Office Kelway f. 171◠Nevil says it has been a common saying That the Constable of England by virtue of his Office in some case may Arrest the King himself and therefore held it necessary that the King should be appriz'd what Authorities belong to his Office Fineux Chief Justice says We know of no such Authority to belong to any Officer within the Realm by the Common Law of the Land Which he afterwards explains for
exaltationem Sanctae Ecclesiae pacem populi tenendam concessit c. King William being dead the Great Men of England not knowing what was become of Robert Duke of Normandy So R. 1. was call'd but Duke of Normandy till he was chosen King of England the deceased King's Elder Brother who had been five years at the Holy-war were fearful of wavering long without a Government Which when Henry the youngest Brother a very wise young Man cunningly observ'd the Clergy of England and all the people being assembled He promised an amendment of those Laws with which England had been oppressed in the time of his Father and his Brother newly deceas'd that he might stir up the minds of all to his promotion and Love and that they might receive him for King and Patron To these things the Clergy answering and then the Great Men That if with a willing mind he would Grant and Confirm with His Charter those Liberties and ancient Customs which flourish'd in the Kingdom in the time of Holy King Edward they would consent to have him and would unanimously consecrate him King And Henry freely consenting to this and affirming with an Oath that he would perform He was Consecrated King on our Lady day by the Consent of Clergy and People upon whose Head the Crown was immediately set by Maurice Bishop of London and Thomas Archbishop of York As soon as he was Crown'd He granted the under-written liberties for the exaltation of Holy-Church and preserving the Peace of the Kingdom Then follows his Charter containing some Alterations of the Law which had before obtained not only in relation to the Rights of the Crown but of the Subjects particularly whereas the Relief had been Cart. H 1. Siquis Baronum meorum Comitum vel aliorum qui de me tenent mortuus fuerit as Fines now in most Copy-hold Mannors at the Will of the Lords they were reduced to what was just and lawful according to St. Edward's Laws for which as should seem by the Charters of King John and H. 3. declaratory of the Common-Law there were known Rates and H. 1. restored all the Common-Law with the Statutes made for the amendment of it in the time of W. 1. He seem'd in two particulars wisely to have ingratiated himself with the people the first was in gaining to his side the Directers of their Consciences by a concession to the benefit of Church-men which was wholly new and that was That an Archbishop or Bishop or Abbat being dead Vid. Cart. H. 1. he would take nothing of the demean of the Church nor of its tenents until the Successor was inducted which was a departure from that Prerogative which belonged to the Crown upon the Vacancies as appears by the affirmation of H. 2. Vid. Anti. Brit. inf f. 135. Carta Johannis Haec omnia observentur de custodiis Arch. Episcopatuum Abbat Prior Eccles Dignitat vacantium quae ad nos pertinent c. Prerog Regis 17 E. 2. c. 14. the Charter of King John and the Statute of the King's Prerogative 17 E. 2. This Indulgence to the Church without special Provision for keeping it up was withdrawn by the next general Confirmation of the Confessor's Laws and therefore 't is no wonder that it is left out of subsequent Charters If he was not popular in this at least he was in another Action which was his imprisoning Ranulph who had been the great Instrument of oppression in the former Reign Mat. Par. f. 76. and that it was with intention of punishing him severely appears by Ranulph's making his escape out of Prison by means of those great Treasures which he had heaped up from the Spoils of the People Ranulph no doubt could at a much cheaper rate have applied himself to such a Lawyer as the Author of the Magistracy vindicated if such an one could have been found in that Age of less corruption Vid. the last part of the Magistracy and Government vindicated p. 8. I 'll not mention the Argument from the Vacancy that the Government was dissolved every thing reduced into its Primitive State of nature all Power devolved into Individuals and the particulars only to provide for themselves by a new Contract for if so there 's no new consent for punishment of Acts done before the dissolution and consequently revenge for that is at an end Vid. ib. p. 2. who might have advised him to rest satisfied that it would not be consistent with the Wisdom and Justice of a Prince who came in upon a Vacancy of the Throne as H. 1. did not standing next in the Line to punish any Criminals of the foregoing Reign but Ranulph was wiser in running away and perhaps more modest than to think that for his useful parts employed in the pillaging and destroying innocent men he might pretend to merit under the Successor H. 1. having truly shewn a Fatherly care of the people no man then raised any foolish scruple upon the manner of the Proceedings where the Substance was pleasing to all But that which has been done by them who could get together upon the intervals of Government has been held valid that the Vacancies might be as short as possible unless the general sense of the people has immediately appear'd against it and thus Harold having been Crown'd by surprize when the Friends of W. 1. were at the Confessors Buryal some Authors upon that very Account Vid. 2. part will have it that Harold was an Usurper But that it may be seen how little apt people are to dispute Forms when a King acts agreeably to the sense of a Nation I shall shew that H. 1. acted as King even before he was Crown'd immediately upon his Election for which Huntindon is my Author who having mentioned the death of W. 2. says Henricus frater ejus junior ibidem in Regem electus Hen. Huntin f. 216. b. de H. 1. dedit episcopatum Wincestriae W. Giffard pergensque Londoniam sacratus est ibi a Mauritio Londonensi Episcopo His younger Brother Henry being there chosen King gave the Bishoprick of Winchester to W. Giffard and going on to London was consecrated there by Maurice Bishop of London And I am much mistaken if what he did in relation to another Bishop Anselm who had been Archbishop of Canterbury in the time of W. 2. is not an additional evidence to what I have already produced that the Convention in which he was Crown'd was turn'd into a Parliament or acted as one Ordericus Vitalis says Anselmus enim Dorebornensis Archiep. exulabat Eadmerus f. 38 39 40. shews this was at a Council at Winchester ubi says he ex condicto venimus Mat. Far. f. 25. Trajacere quidem liberum esse sed inconsulte id facturum siquidem nullam revertendi spem in posterum ei futuram Eadmerus Anselm as appears by the circumstances of the story had been condemned to perpetual Banishment by Parliament in the time of
THE Fundamental Constitution OF THE English Government PROVING KING WILLIAM and QUEEN MARY our Lawful and Rightful KING and QUEEN In Two Parts In the First is shewn The ORIGINAL CONTRACT with its Legal Consequences allowed of in former Ages In the Second All the Pretences to a Conquest of this Nation by Will 1. are fully examin'd and refuted With a large Account of the Antiquity of the English Laws Tenures Honours and Courts for Legislature and Justice And an Explanation of material Entries in Dooms-day-Book By W. A. Author of the first Answer to the late Chief Justice Herbert on the Dispensing Power Errat siquis existimat tutum ibi esse Regem ubi nihil à Rege tutum est securitas securitate mutuâ paciscenda est Sen. London Printed by J. D. for the Author 1690. To the Right honble AUBREY DE VERE Earl of Oxford Baron of Bolebec Sandford and Badlesnere Lieutenant General of their Majesties Forces Colonel of the Royal Regiment of Horse-Guards Lord Lieutenant for their Majesties in the County of Essex Knight of the most honourable Order of the Garter and one of His Majesty's most honourable Privy-Council My LORD THEY who observe what License has been given as well as taken to blemish the Instruments under God and our King in the greatest Deliverance with the most immediate appearance of God in it perhaps of any next to that of his chosen People of old would think the Nature of things to be inverted Triumph to belong to the Conquer'd and the most desir'd Deliverance to be worse than the deprecated Bondage or to lose its Nature because it was the return of Prayers and Tears and not purchas'd by Rivers of Blood And after-times I have seen an exact Pedegree o◠the Earl's Family from Syford a noble Norman Gothick Extraction Vid. Pref. who was eminent under Rollo who Anno 912 obtain'd Normandy by Treaty with Charles the Simple and marrying his Daughter This Syford made the like bargain with Arald the first Earl of Flanders from which Marriage the Earls of Flanders and the Veres Earls of Guisnes in Flanders descended Alberic or Aubrey de Vere or Ver as he stands enter'd in Dooms-day Book is suppos'd to have come into England with W. 1. 'T is certain at the time of the great Survey he was a Proprietor in several Counties particularly in Essex and Humphrey the Son of Alberic had at that time several Mannors in Norfolk and Suffolk 'T is probable that this Son of Alberic dy'd in his Father's Life-time I should take the Comes Albericus who is enter'd in Dooms-day Book in several Counties as a Proprietor from before the reputed Conquest to have been Alberic de Ver and the rather because otherwise he and his Descendents from that time are wholly lost and besides no place in England can be found of which any Alberic or Aubrey was Earl till the time of H. 2. when Aubrey the third of his Name was created Earl of Oxford But before that time the Office of High Chamberlain belonged to the Family and as appears by Records which I have seen in the Tower was annex'd to their Barony But that of Bolebec belong'd not to it till about the time of King John when Earl Robert married the eldest Daughter of the Lord of Bolebec the Barony of Sandford came by another Marriage about the time of H. 3. the Barony of Badesmere came not till the time of E. 3 with the eldest Sister and Co-heir of Bartholomew Lord Badlesmere in which your Lordship 's Great Name will flourish taking root downwards as it has spread upwards to the first Ages will treat their Memories with Contempt who would inure the Brand of Disloyalty and Unchristian Behaviour upon your Lordship and the Followers of so bright an Example Selden Dissert ad Flet. f. 519. speaking of the time of Will. 2. sub idem tempus c. eminentissimus erat pristini planè commatis juris sine ullâ Caesarci intermixtione peritus atque exercitatissimus apud nos Albericus de Ver. Nor was your Ancestor Earl Aubrey more eminent in the time of W. 2. for his Skill in the unmix'd English Laws than your Lordship is and will be to Posterity for your generous Defence of them Certain it is how much soever some pretend to passive Valour they cannot bear the Reproach of such extraordinary Vertue and are forced to shut their weak Eyes at that shining Bravery with which your Lordship strugled with the Flatteries and Threats of Fortune and of Power Becoming in the Language of the Heathen Philosopher a Spectacle most pleasing to the Gods the Effects of which Pleasure your Lordship has felt in the admir'd Tranquillity of your own Mind and in the Glory permitted you of being signally accessary towards the present Happiness of your Country not only by your resolute Vndertaking but even by your Sufferings I must own the Sufferings of others to have contributed to it by accident as those things may well be said to be which happen contrary to the intention of the Agent and nature of the Action But the Nation was glad to find their private Resentments and self-Defence to carry them along with the Publick Interest which some of them had sacrificed to low Ends or stupidly neglected being as unconcern'd at publick Calamities as if their former Exemptions which they seem'd to aim at had made them of another distinct Community Such as these deservedly lost the Credit of their share in this Revolution not only as they had drawn their Sufferings upon themselves and others by tempting those whom they flattered to make Experiment of the force of their Doctrine but as their subsequent Carriage has demonstrated upon what narrow Principles they engag'd not in the Cause of their Country but their Own Their lowness of Spirit makes them resemble those fawning Creatures whom the least Gentleness raises to Familiarity but notwithstanding the Advantages which they enjoy under this Government 't is not to be presum'd that they are given them otherwise than to reclaim and wean them from Notions as destructive as they are useless to this equal Administration They who now pretend to merit by transplanting the Doctrine of the Bow-string into the Service of this Government would do well to consider whether in the late Reign it really profited any but themselves and whether they kept to it any longer than while they found their account in it As it is our Happiness to have a King born and acting for the Good of Mankind it is not to be fear'd that he should cherish what is contrary to their common Sense and Interest or that he will countenance Reflections upon those noble Patriots who ventur'd every thing dear to them in the same Cause with himself while Success was doubtful and whose Reputations next to his own facilitated that Revolution for which late Posterity shall praise those of this Generation One would think that such a Cause should not stand in
lay to hold in Vassallage of the Pope as well as by other his Exorbitances yet was not set aside till the Nation was necessitated to it by the Success of his Usurpations and Ravages to which as he was encouraged and enabled by the Influence of the Pope's Authority over the less honest or less discerning so he thereby lost all means of gaining Trust from his People for the future The Earls and Barons of England having without any Writ from the King given one another notice of meeting demonstrated that they engag'd not out of any Affectation of Change but meerly to secure those Liberties which were their due by the Constitution for they agreed to wage War Mat. Pa. f. 339. and renounce Allegiance to him only in case that he would not confirm those Liberties which were contain'd in the Laws of Hen. 1. and the ancient Laws of King Edward the Confessor That they might proceed with such Deliberation as became them they appointed another Meeting for a peremptory Demand declaring that if he then refus'd them they would compel him to Satisfaction by seizing his Castles nor were they worse than their words and their Resolutions had for a while their desir'd Effect in obtaining a Confirmation of their Liberties which tho they were as forceable in Law before and his Promise to maintain them as little to be credited as ever yet his open Violation of them after his own solemn acknowledging them and granting that Petition of Right was likely to cast the greater Load upon him and his Courtiers when they should act to the contrary and to take from their side numbers of well-meaning Men who otherwise might be cheated with a pretence of Prerogative The Pope as was to be expected soon absolv'd the King and encourag'd him to break those legal Fetters which was ipso facto an Absolution to the People of more effect in Conscience than the Pope's ipso facto Excommunications They being thus discharged the wiser and sounder part of them stoutly casting off the Authority both of King and Pope proceeded to the Election of another King Lewis the Dauphin of France Mat. Par. lib. Addit An. 1216. The Account in Matthew Paris of a Debate which the French King and his Advocate or Attourny-General held with the Pope's Nuncio who would have disswaded the Dauphin's Expedition against King John the Pope's sworn Vassal is so exactly parallel to the Case now in question that many who will allow us no Precedent of ancient Times will be ready to say that some words at least were foisted in since our present happy Settlement The French King as became a Monarch spake his mind in few words Si aliquando fuit verus Rex postea Regnum forisfecit per mortem Arthuri de quo facto damnatus fuit in Curiâ nostrâ Item nullus Rex vel Princeps potest dare regnum suum sine assensu Baronum suorum qui regnum illud tenentur defendere If ever he were King he afterwards forfeited his Kingdom by killing Arthur of which Fact he was condemned in our Court. Besides no King or Prince can give his Kingdom without the Assent of his Barons who are bound to defend it That is to preserve the Kingdom against the King who has parted with it or any Demisee as appears by his Advocate 's Enlargement to whom he left the rest after himself had granted all Kingly Power to have this implied Limitation Mat. Par. Addit f. 281. The Advocate goes on addressing himself to the King Domine Rex Res notissima c. May it please your Majesty It is a thing well known to all that John called King of England was condemned to death in your Court for his Treachery to his Nephew Arthur whom he slew with his own Hands And was afterwards by the Barons of England for his many Homicides and other Enormities there committed rejected from reigning over them Whereupon the Barons waged War against him Ne regnaret super eos reprobatus ut ipsum solio regni immutabiliter depellerent that they might drive him from the Throne of the Kingdom never to return Moreover the said King without the Assent of his great Men gave his Kingdom to the Pope and the Church of Rome to receive it again to be held under the yearly Tribute of a thousand Marks Dare non potuit potuit tamen dimittere eam And altho he could not give the Crown of England to any one without his Barons he might demise it or devest himself of it which as soon as he resign'd he ceased to be King and the Kingdom was vacant without a King Therefore the vacant Kingdom ought not to have been administred without the Lords What difference between the Kingdoms being vacant without a King and the Throne vacant Vacans itaque Regnum sine Baronibus ordinari non debuit unde Barones elegerunt Dominum Ludovicum ratione Uxoris suae c. By reason of which the Barons chose Lord Lewis upon the account of his Wife whose Mother the Queen of Castile was the only Survivor of all the King of England's Brothers and Sisters This was so true and so convincing that the most plausible Return which the Pope's Nuncio could make to it was that King John had been sign'd with the Cross for the Service of the Holy Land and that therefore by the Constitution of a General Council he ought to have Peace and be under the Pope's Protection for four Years And you may be sure that the French King would not interrupt him in his Journey thither but was well satisfied that his Son should supply his place in England Who tho he had been received not only as one that rescued the Nation from King John's enormous Tyranny but as one that was in the Right of his Wife entitled to the Priviledg of the English Blood Royal and so duly chosen according to the standing Law of this Monarchy as has been mentioned and will hereafter more fully appear Vid. sup inf Yet the Clergy and all who were so weak as to be led by them in Civil Affairs being against Lewis Mat. Par. f. 384. as he stood excommunicated by the Pope besides it having been made known by the Death-bed-Declaration of one of Lewis his Confidents that his Master had evil Designs against those very Men who were the chief Instruments in his Advancement and that he look'd upon them who fought for him as Traitors he through the uncertainty and indifference of his Friends more than the strength of his Enemies was oblig'd to quit the Kingdom to Hen. 3. Object This would lead me to the particular Consideration of the Barons Wars with H. 3. were it not needful first to remove an Objection against their Proceedings with his Father which tho not founded on the Histories of the same Age may seem to have weight from the Authority of Divines of later times The Homilies pass this Censure upon
TO proceed to the Reign of H. 3. who was Crown'd by a Faction at Glocester while Lewis was in possession of London the Metropolis of the Kingdom That he came not to the Crown as Successor in an Hereditary Monarchy but upon a plain Election and Compact with part of the Nation at least in the Name of the rest who would come in under those terms may be prov'd beyond contradiction For tho' in the Language of the Homilies King John were Natural Lord to the Subjects of England yet as Arthur who was the next in the Line to King John's Predecessor had the Right of Blood Mat. Par. f. 278. as far as that could operate before King John which he insisted on in the Fourth of that King's Reign even while he was his Prisoner the same right had Eleanor Arthur's Sister all the remainder of King John's time and for some years during the Reign of H. 3. 2. The Father came to the Crown by virtue of a Free Election of the People as the Archbishop of Canterbury told him at his Coronation wherefore his Election could not invest him with more than a Personal Right unless more were express'd at the time But the Archbishop Hubert Mat. Par. f. 264. 1 Johan Audite universi noverint discretio vestra quod nullus praevia ratione alii succedere habet in regnum nisi ab universitate regni unanimiter invocatâ spiritus gratiâ Electus secundum morum suorum eminentiam praeelectus who spake in the name of the Community was so far from giving the least Umbrage to a Right that might extend to Heirs that he affirm'd That no man is Intituled to succeed to the Crown upon any other account previous to the unanimous choice of the Kingdom except only the eminence of his Virtue And being afterwards ask'd why he took such freedom of Speech He declar'd That he foresaw and was assur'd by Ancient Prophecies That King John would corrupt the Kingdom and Crown of England and precipitate it into great confusion And he asserted That he ought to be minded of his coming to the Crown by * Ne haberet liberas habâ—nas hoc faciendi Election not by Hereditary Succession least he should take a liberty to act as he fear'd 3. Since therefore what the Archbishop fear'd came to pass and that Contract in virtue of which King John assum'd the Royal Scepter was notoriously broken How can it be thought that a Right devolv'd upon his Son H. 3. especially considering the interruption that was made by a Choice of Lewis tho' not Universal I must confess there is no Evidence occurring to me that Lewis was ever Crown'd here yet considering that the Coronation as is agreed by most is but a Ceremony the bare want of it would not the less argue a breach in the Succession since the sounder part of the people took the benefit of that Forfeiture which King John manifestly made and if nothing but an Universal Concurrence in this could justify withdrawing Allegiance from him then it is hardly possible for any resisting of Tyranny to be lawful at the begining and he who is forwardest in the Cause of his Country must be always a Criminal But being there is a deep silence as to Lewis his Coronation Mat. Par. Illico Coronandus tho he was promis'd by the Barons at London to be Crown'd immediately upon his coming over I take the reason of the silence in this matter to be That if he were Crown'd in form it was by the Laity alone because the Pope was fast to the side of King John and his Son and Lewis lay under a Papal Sentence of Excommunication so that the Clergy durst not Communicate with him in those Acts of Religious Worship which accompany Coronations But these Ceremonies being to be performed by Clergy-men 't is most probable that the Laity contented themselves with the Substance and left those Ceremonies for a more convenient time But that Lewis was in Possession of the Crown and the Regalia is to be believed as London with the Tower where they us'd to be lodg'd had not only been in the Possession of his Friends from the beginning but held so till the second Year after H. had been Crown'd as it is to be presum'd with a Crown made for that purpose Whether Lewis were Crown'd or no he was as fully received by them that had withdrawn their Allegiance from King John as if he had been Crown'd and reciprocal Oaths past between them And he was so far lookt on as King Mat. Par. that Alexander King of Scots swore Homage to him for the Lands he held of the Crown of England But certain it is as the Circumstances evince that there were at least three Express and Binding Contracts which H. 3. entred into with his People either beyond or rather explanatory of what is included in the Coronation-Oath and which H. 3. was bound to observe as he would be King of England and these besides several Confirmations of the Great Charter purchas'd with the Peoples Money and one of the Grants of Aid so particularly Conditional that Treasurers for it were appointed in Parliament and the Money was to be returned upon the King 's not performing the Conditions of the Grant 1. The First Contract which I shall observe was that which Lewis perhaps induc'd to it by the Money which he borrowed of the Londoners oblig'd H. to before he would quit his Pretensions So that one was plainly the Condition of the other and as the Civilians have it ran into the other by way of Mutual Consideration Vid. inf Lewis for the reasons which I before touch'd upon finding his Interest daily decline thought good to come to terms with Henry whereby Lewis oblig'd himself by Oath to withdraw from England Mat. Par. fol. 400. with all his Followers never to return and to use his endeavours that his Father might restore all the Rights of the Crown of England which he had seiz'd on beyond Sea In consideration of which Henry the Earl Marshal of England and the Pope's Legat F. 423. N a. Discord not Rebellion f. 431. swore to the restoring to the Barons of England and all others all their Rights and Liberties for which there had been Discord between King John and his Barons This Agreement with Lewis the Great Council of the Nation afterwards insisted on 7º H. 3. when they urg'd a Confirmation of the Great Charter which they obtain'd not till 9º of that King 2. The Second particular Contract was that of which the Great Council or Parliament 28º H. 3. mind him and of which they then after much strugling purchas'd a Confirmation According to this among other things 28 H. 3. referring to 20. f. 864. Four Great Men were to be chosen by Common Consent as Guardians of the Kingdom to be the standing Council about the King with a very large Trust reposed in them The Chancellor Treasurer and
that Statute 't will appear beyond contradiction 1. That the rule of submitting to the judgment of the King's Court will be of no service to Mr. Falkner's purpose the Court which is presum'd to be intended if it relates to the Controversies between the King and his Barons being the Parliament where they would be Judges in their own cases which Mr. Falkner says they ought not to be 2. The Statute of Marlborough does not in the least condemn the Barons Wars For 1. The Subject of that Act is to remedy the abuses of Distresses which are matters within the Jurisdiction of the ordinary Courts of Justice and no way extends to the great questions of the Kingdom determinable only in the highest Court 2. The Statute does not call those Wars a time of Rebellion Vid. Stat. Marlb Fleta p. 25. but of Dissention and Troubles suitably to which even in the time of E. 1. among the Articles of the Crown in charge to the Justices in their Circuits one provides for enquiry after them who have substracted Suits of Shires c. after the War moved between King Henry the Third and his Barons Mat. Par. f. 373. 3. Tho the Barons once threatned H. 3. That unless he would send away the Foreigners they would all by the Common-Council of the whole Realm drive Him and his wicked Councellors out of the Kingdom and would consider of making a new King yet it appears by the Circumstances and Events of the several Insurrections that their design was only to bring him to reason they still were for continuing him King and therefore it might not be improper for the Parliament at Marlborough to hold That for all matters of private differences even while Armies were in the Field the Course of ordinary Justice was to go on and that it was not to be look'd on as a state of War This may be enough to remove the Objections made by Mr. Falkner against the Barons Wars in the time of H. 3. which he supposes to be the most plausible Instance brought by them against whom he writes and I take it that the Reign even of E. 1. one of the most warlike of our Kings affords an Instance no less plausible Ao. 1297. Knighton f. 2510. Libratas In the twenty-first year of his Reign he summoned all who had twenty Pounds a Year â—… Land of whomsoever they held to attend him at London with Horse and Arms in order to go with him to Flanders When they met at London he was advised to be reconciled to some of the Great Men with whom he had been at variance He complied with the Advice excusing himself for former Exactions and desiring their farther Assistance since what he was engaged in was not his own private concern Mat. West f. 430. but the concern of the whole People as he was their Protector and Defender And he intreated them to pray for him which the Historian says very few did heartily But Humphrey Bohun Earl of Hereford and Essex High-Constable of England and Roger Bygot Earl Marshal withdrew from the King whereupon he discharged them of their Offices and gave them to others Yet the King found himself obliged to send some Persons to mediate between Him and Them To whom they declared That it was not their own Cause alone but the Cause of the whole Community which they undertook Knighton f. 2511. For not only They but the whole Community of the Land was agrieved with unjust Vexations Tallages and Levies and chiefly That they were not treated according to the Liberties in Magna Charta Wherefore they drew up a Remonstrance of their Grievances which if the King would command to be redressed they were ready to follow him to the Death Knighton f. 2512. The King gave a dilatory Answer excusing himself through the absence of some of his Council and having desired them not to do any thing to the prejudice of Him or his Kingdom passed the Seas notwithstanding the dissatisfaction that he left behind concluding 't is likely That that Success which commonly attended him in his Wars would gain him a more absolute ascendant over his People The King being gone the Constable and Marshal with their Adherents forbad the Chancellor and Barons of the Exchequer to issue out Process for levying the eighth Peny which had been granted the King in Parliament and which yet they said was granted without their Consent either as they had not due Summons or were upon just Cause absent They continuing together in Arms the King's Son who had been constituted Vicegerent found a necessity of giving them satisfaction To which end he calls a Parliament Knighton f. 2523. where through the mediation of the Arch-bishop whom Knighton blesses for it it was agreed That the King should confirm Magna Charta and the Charter of the Forrest That for the future Magnates he should not ask or take any Aid of the Clergy or People without the good will and assent of the Great Men. And that he should remit all Rancor to them and their Adherents In the Charter or Act of Parliament which then passed there are these Words Remisimus Humfredo de Bown Comiti Herfordiae Esekes Constabulario Angliae Rogero Bygot Comiti Norfork Mareschallo Angliae c. rancorem nostrum malam voluntatem quam ex causis praedictis erga eos habuimus etiam transgressiones si quas nobis vel nostris fecerint utque ad praesentis Cartae confectionem We have remitted to Humphrey de Bowne Earl of Herford and Essex Constable of England Roger Bygot Earl of Norfolk Marshal of England c. the rancour and ill-will which we had against them for the foresaid causes and also all Transgressions or Offences if they have committed any against us or ours to the making of this Charter Here was a quiet conclusion of an Insurrection managed under two Tribunes of the People whose Union had such an effect that what they did was not lookt on by the Parliament to be so much as a Misdemeanor CHAP. VII The known Cases of Ed. 2. and R. 2. touched upon The power of the people manifested in the Wars and Settlements of the Crown occasion'd by the Disputes between H. 6. and E. 4. Why the instances from those times to the late Abdication omitted The Objections from the Oaths against taking Arms and from the Declaration against a Coercive Power over Kings removed by Sherringham and the Triennial Act 16 Car. 1. Pufendorf's Due Restraint of the Power of the People Instances of the like Power in other Nations particularly Denmark Sweedland and Norway when under the same King For France Hottoman Sesellius the Author of Les Soupirs de la France esclave Bodin explain'd and shewn to justify King William in his descent hither and the People of England in their asserting the true Constitution of the Government For the German Empire Bodin and Conringius An occasion taken from him to
being ask'd by the King upon the report made by the Justices of their resolution for the Duke what things the Constable can do by reason of his Office Sir says he this Point belongs to your Law of Arms of which we have no experience nor cognizance This may shew what occasion Cardinal Wolsey had to strain a point of Law against that Duke and to have one who durst insist upon a Right to be Constable of England by inheritance Vid. Inf. 2d Part. to be taken off by an High Steward out of Parliament made for that turn And what Fineux says of the Power of the Constable may account for the silence of Bracton Fleta and other Ancient Common-Lawyers in relation to the Authority of the Constable and Marshal Flet. lib. 2. c. 31. yet Fleta shews that the Constable had a Seat in the Exchequer and overlooked Accompts relating to Soldiers Forts and Castles and gives a shrewd hint concerning the Earl Marshal speaking of the Exchequer The Justices says he sitting there were all Barons Fleta lib. 2. c. 26. because Barons used to sit in their places while the Earl of Norfolk and Martial of England had his Place and Seat there as Chief Justice of the Kingdom of England whose Place the Treasurer possesses at this day but he cannot occupy his Office This shews that in the Exchequer the Earl Marshal had place above the Constable accordingly when 25 E. 1. they came into the Exchequer to forbid the Levying of the Tax The Barons in their account of this to the King say There came to the Bar of the Exchequer Vid. Append. the Earl Marshal and the Earl of Hereford and the Earl-Marshal and the others declared they would not suffer it to be Levied That this Office was of extraordinary Authority Rot. Pat. 42. H. 3. M. 4. appears by a Record 42 H. 3. which shews That the Precept for executing the Provisions at Oxford were by the King and his Council in Parliament deliver'd to the Earl-Marshal and if we consider the Authority exercised by the Earls Marshal in the time of H. 3. and E. 1. with the approbation of Parliaments Vid. Mat. Par. 28 H. 3. it may be thought that he was an hereditary Conservator of the Kingdom notwithstanding which in the 28th of H. 3. the Parliament insisted upon it as their right to have four Conservators chosen by them This Office perhaps is the only one which was enjoyed in gross and went along with the name of Marshal till the time of H. 3. when Hugh Bigod Earl of Norfolk Bar. 1. Vol. f. 133. Married Maud the Daughter of William Marshal Earl of Pembroke Sir William Dugdale says the first mention which he finds of the Name and Family of Mareschal Ib. f. 599. was in the time of H. 1. but in all probability that Name and Office went together from before the time of W. 1. I am sure Roger Mareschal was a very considerable Proprietor in Doomsday-Book Vid. 2 d Part. Indeed the first contest about the Office was in the time of H. 1. when it was adjudged to belong to the Family of the Mareschals Vid. Appendix Rot. Pat. 1. Johan N. 85. M. 12. as appears by the Record of the Confirmation 1º Johannis CHAP. VIII The Third Head of Positive Law The Kingdom founded in Monarchy yet Elective sub modo The Form of Government not dissolv'd with the Contract between Prince and People The Argument from Election of Kings as it is used by the Author of the Sighs of France enslaved The Crown of England proved Elective Sub modo 1. From the Saxon Pontifical and the Council of Calcuth Anno 789. 2. From the Practise till the supposed Conquest 3 From the Confessor's Law received by W. 1. and the Expressions of Ancient Historians and Lawyers since the time of W. 1. 4. The Common usage in asking the People's consent at Coronations 5. The Opinion of Kings themselves 6. The Old Oaths of Allegiance 7. The Liberty even after a Settlement of the Crown 8. The Breaches in the Succession 9. The Statute 11 H. 7. Answers to the Objections 1. That the King never dies 2. The supposition of a Testamentary Heir 3. The Declaration temp E. 3. against consenting to the disherison of the King and His Heirs 4. The claims of Right between Two Families 10. A qualified Election of Kings of England confirmed by observing how it has been in other Nations descended from the same Common Stock THE Kingdom I own is founded in Monarchy and so is Poland which yet is absolutely Elective Nor is there any consequence that the dissolution of the Contract between the immediate Prince and People This objected by the Author of Elementa Politica Of the Magistracy c. vindicated and others Vid. Pufendorf de Interregnis p. 267. Post decretum circa formam Regiminis novo pacto opus erit quando constituuntur ille vel illi in quem vel in quos Regimen coetûs confertur should destroy the form of Government for that depends upon a Prior Contract which the People entred into among themselves And that by virtue of this to avoid endless competitions our Kings have generally from the first erection of the English Monarchy been chosen out of the same Family appears beyond contradiction If our Monarchy will appear from the foundation to be no otherwise an inheritance than as it is setled on a Family with a latitude for choice within the Family no Man can doubt but it will tend greatly towards removing objections against our present Settlement 't is certain the Learned Author of The Sighs of France improves the Argument farther than is needful for us Soupirs de France Mem. ' It is says he indubitable That they who have power to Chuse ' have power to Depose Every Nation says he that makes a King P. 81. preserves to its self a right to unmake him when he goes beyond the bounds of his duty and when he ruines the Estate instead of preserving it and this very thing makes it appear That Elected Princes neither are nor can be Soveraigns of an Arbitrary Power I know some talk of a Birthright and Inheritance in the Crown of England which is not founded in the statutes Jovian p. 87. but on the original Custom and Constitution of the English Government which is thought to be an hereditary Monarchy according to proximity of blood But I would desire all Men of this Opinion impartially to weigh these following particulars 1. Mr. Selden in his Titles of Honour shews us the form of Prayer used at the Coronation of Saxon Kings wherein they pray God to bless him whom they chuse for King and call him one chosen to be Crowned King Et hunc electum in Regem coronandum bene Titles of Honour f. 157. Out of the Saxon Pontifical At Calcuth Anno 789. Spel. Concil 1 Vol. f. 291. dicere consecrare digneris