Parliamenti sedebunt nullus stabit sed quando loquitur ut omnes audiantur à Paribus And again Nullus solus potest nec debet recedere à Parliamento sine Licentia Regis omnium Parium Parliamenti hoc in pleno Parliamento Ità quod inde fiat mentio in Rotulis Parliamenti It may be possible That Bracton and Fleta with others may use the Phrase Pares in such a sence when they say That the King or his Commissioners should not judge and determine of Treason but Pares Which may be added to the 25 th of Edw. 3. reserving Treason to Parliament where of Old it seemeth only determinable so that The Mirror would not have it Endicted but by Accusation and in full Parliament as in King Edmund's Time c. Cap. 2. Sect. 11. and in Edw. the 3 d it was enacted That Offences of Peers and great Officers and those who sued against the Laws should be tryed in Parliament And although now the Phrase be given to all the Lords of Parliament yet it was most or only proper to the Earls whom by Law and custom the King styleth Consanguineos and he might style them his Peers or Companions as in Latine Comites So Bracton Comites dicuntur quasi Socii Regis qui habet Socium habet Magistrum and in another place A Societate Reges enim tales sibi Associant ad consulendum regendum Populum Dei and the like is in Fleta Comites à Comitiva dicuntur qui cum viderint Regem sine Freno Frenum sibi apponere tenentur c. which is also in Bracton The Mirror is yet clearer although the King had no Equals yet because himself or his Commissars might not be Judge it was provided by Law that he should have Companions to hear and determine all his Torts c Aux Parliaments and those Companions were called Countees Earls from the Latine Comites So also Sarisberiensis cited before in Hen. 2. Comites à Societatis participatione dici quisquis ignorat ignarus est literarum c. some will have them Comites Socii in Fisca because of old some Earls had a third part of profits accrewing by Pleas and Forfeitures in their Counties as the Laws of the Confessor and Mr. Selden in his Comes but he will also grant their name à Comitiva potestate rather than from such Communion of profits That the old Sheriffs also who were Vice-Comites did come to Parliament appeareth in the Ancient Writs and Histories and yet the Barons seem to be the Kingdoms Iudges and the present Earls may seem to sit in Parliament but onely as Barons who are now all Peers and Lords and Parliament But although the Lords were the great Iudges of the Kingdom and of all Members thereof yet it is well known that in full Parliament as old as Edw. 3. they did not only acknowledge but protest that they were not to Iudge the Commons in Cases of Treason and Felony being not their Peers How it was in Rich. the Second may be seen at large in the Rolls and Records now printed in Edward the Second the Commons proceeded by the Judgment of the Lords for which also the Fructus temporum cited before may be added to all in the Road. Appeals and Writs of Error were from the King to the Lords in Ecclesiasticals that touched the King they were to the Spiritual Prelates Abbots and Priors of the Upper House by Act of Parliament in 24 Hen. 8. till which it may be Temporal Lords had also Cognizance of such as well as Temporals And Writs of Error in the Parliament were Judged by the Lords for they came from the Kings Court his Bench or his Exchequer and if Errors had been in the Common Pleas or below it they should not be brought into Parliament but to the Kings-Bench and from the Kings-Bench as from the King not otherwise they came to the Lords and although there was a formal Petition for removing the Record from the King it was but of Course and the King could not deny it Which we found granted by all the old Lawyers and Historians as I shewed before and by the grand Master and Patron of Law King Edw. 1. in Britton because none may Judge in his own Cause Therefore in Causes where our self shall be Party we do consent que N. Court soit judg Sicome Counts Barons in Temps de Parliament In the Laws of Hen. 1. one of the Chapters beginneth thus Iudices sunt Barones Comitatus qui liberas in eis terras habent for in those times Barons were by Tenure only not by Patent that I know till Beauchamp of Holt in Rich. 2. nor by Writ that I can find till the Barons Wars but K. Johns Charter is to Summon Comites Barones Regni majores sigillatim per literas N. But all that hold in Capitae by general Summons forty days before the Parliament and that Negotium procedat ad diem assignatum secundum consilium eorum qui presentes fuerint quamvis non omnes submoniti venerint and the Summons of Delinquents or Suitors in Parliament was to appear and abide the Judgment of the Court not of the King but of his Court for the King is Father and not Judge of his People in his proper Person as was shewed before and all the Books agree that he must Commit his Jurisdiction unto Judges in the Courts of Justice and when he might assume great Offices into his own Hands by Parliament in Edw. the third all Judges were expresly excepted and the Judges Oaths and several Acts of Parliament require them to proceed according to the Law notwithstanding the Kings Command or Seal against it and the Register affordeth a Writ to Supersede or Revoke any such Seal from the King himself to any of the Judges And the Lord Chief Justices as the Lord Chancellor and Treasurer were Chosen by the Kingdom as we found before in the time of Hen. 3. how much more then should the Lords of Parliament be made by Parliament for else they be the Kings Commissioners So the Roman saith our German Fathers chose their Lords in Common Council to be Judges in iisdem Conciliis Eliguntur Principes qui Jura reddunt De Minoribus consultant Principes de Majoribus Omnes And Caesar also observeth that their Princes or Lords were their great Judges sed Principes Regionem atque Pagorum inter suos jus dicunt Controversiasque minuunt Yet Tacitus will also tell us that with those Princes they did joyn Commons Centeni ex Plebe Comites which were perhaps the Fathers of our County Hundreds And in K. Williams Edition of the Confessor's Laws when he inclined so much to them of Norwey Universi Compatriotae Regni qui Leges Edixerant came and besought him not to change their Old Laws and Customs of their Ancestors because they could not judge from Laws they understood not quia durum valde foret sibi suscipere
Iews in the Laws of the Confessor Some Kingdoms are in Fee to others and must do Homage Swearing Fealty So Scotland unto England so was also our English King but not the Crown or State which hath oft in Parliament been adjudged and declared Imperial Independent when himself did Homage unto France And yet I do not find our English King did ever much Scruple at his waging War with all France and the French King also but did often fight in Person against his Person and he might do so by Law if the King of France did Injure and Oppress him against Law That I say nothing of the Personal Challenges by Rich. the first Edw. the third and Rich. the second Or of King Iohns being cited or Condemned by France for Murther in that Kingdom This might yet be enlarged and further cleared from the good Laws of K. Henry the first which are so strict for Allegiance and due Fealty to every Lord that they seem almost to forget our old English Clemency and yet they speak enough of a Vassals impleading c. his Lord for which divers Chapters from the 40 th to the end are very considerable And the 55 th Chapter limiteth all Homage and Fealty per honestum utile that which is honest and profitable and as Honestum there respecteth God and the common Faith Deum fidem Catholicam so must Utile respect the Kingdom and the Common good it being usual for those times to express the Common Good by such a Phrase of Utile So the Laws of St. Edward for Foromotes Heretokes ad Honorem Coronae ad Utilitatem Regni So King Williams Additions were granted and Confirmed ad utilitatem Anglorum So the Parliament at Merton was to treat de communi utilitate Regni which may be considered in the Writs of those times and the great Charters granted à tout la commune Dengleterre as Articuli super Chartas And the first of Westminster pur le common profit de st esglise de Realm and the Confirmations of the Charters in Edw. the first forbidding all Impositions c. but by Common assent of all the Realm pur le common Profit de ceo which must be determined by Commune Assent and no otherwise So Ethelreds Law Efferatur Concilium quod Populo Utilissimum And Canutes quae ad Reipublicae Utilitatem Commune commodum which there may Paraphrase Regalitas of which before And however the late Oaths of Allegiance are if we consider the old Oaths both in the Saxon and first Norman times we shall find them to respect the Kingdom and its common Good and Profit as well as the Kings Prerogative or private Profit to the Crown By Bracton with others we are led to the Laws of the Confessor for our great Allegiance But in those Laws the Oath is to defend the Kingdom with the King and that by such an Oath we should all be sicut conjurati Fratres ad defendendum Regnum contra Alienigenas contra Inimicos unâ cum Domino Rege c. That it was so also in the Brittish times of K. Arthur whose Parliaments we may assert by more than that in Caius of Cambridge we find in these very Laws and that by Vertue of this Oath King Arthur raised his Subjects and expelled the Saracens and Enemies a Regno from the Kingdom And the same Laws tell us that the same Oath was renewed and Confirmed by K. Edgar whose Laws are severe enough for Treason but against all Lords as well as the King and it is Punished as Theof And the Laws of Canute confirming those of Edgar require Fealty conjoyned with Duty and Virtue and again with Common Justice Iusjurandum datamque fidem Religiosissimè servato injustitiam pro sua quisque virili Parte ditionis nostrae finibus omnem arceto as Lambard translateth the Saxon of those Laws and in another place of them The Leet Oath of Fealty Iure Iurando fidem det omni se in posterum aetate tum furti tum furti Societate Conscientia temperaturum And to this doth King Edwards Oath of Allegiance in Britton seem to allude que ilz nous serrount Feaul Leaux que ilz ne serrount Felons ne a felons assentaunts yet I do not deny but Theof in this Oath might include Treason with other Felony as vvas touched before but however it is as well for the Kingdom or the Common good as for the Kings Prerogative or private Honour o◠the Crown So also the first Norman Laws called the Conquerors require an Oath of Allegiance but for the Publick Peace and common Justice to the Kingdoms good as much as to the Crown for so the words run fint Fratres conjurati ad Regnum N. contra inimicos defendendum Pacem dignitatem N. Coronae N. ad Iudicium rectum Iustitiam constanter modis omnibus pro posse suo as K. Canutes Laws before sine Dolo sine dilatione faciendam This is now continued also through our great Charter and all the Confirmations of K. Edwards and K. Williams Additions in utilitatem Anglorum vvhich may be considered as a good Comment on the usual vvords in Indictments against the Peace and Crown and Dignity vvhich by those Ancient Lavvs vvas to be joyned vvith the publick common good and Justice of the Kingdom So that Allegiance vvas ad Legem to the Laws the Kingdom and the Kingdoms good or Profit together vvith the King And in all the Lavv Books vve may read of Treason done and committed against the Kingdom as against the King So in Hengham Parva cap. 3. If any raise War against the King or against the Kingdom ubi quis movet Guerram contra Regem vel Regnum And his Commentator referreth to several Cases in Edward the third Henry the fourth with Plowden and others which would be considered Nay there are many old Authors and Masters of Law that expresly declare it to be as Real Treason to seduce the King or the Kingdom or an Army for the Kingdoms Safety as to Act against the Kings Life So in Hengham Magna cap. 2. Treason is branched thus de Nece vel Seditione Personae Domini Regis vel Regni vel Exercitus And the very same Division of Treason is in Glanvil both in his first Book and second Chap. and the first Chapter of his 14 th Book To which also may be added Bracton Lib. 3. cap. 3. de Coronâ and Fleta lib. 1. cap. 21. vel ad seductionem ejus vel exercitus sui and Britton cap. 22. disheritur de N. Royalme ou detrahir N Hoste of which also Stanfords Pleas of the Crown lib. 1. cap. 2. and others that Wrote since the Twenty fifth of Edward the third which may seem to limit or to lessen high Treason but not to annul Treason by the Common Law And in Cases of such Treason they declare that although there be no Accuser but only Suspicion sed fama
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
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
the Close is Acta haec confirmata apud Londonium Communi Concilio omnium Primatum meorum c. I should be unjust to our Laws if I should omit the Process and Plea of Morgan Hen against Howell Dha the good Prince of Wales Upon complaint they were both summoned by King Edgar Ad curiam suam and their Pleas were pacately heard In Pleno Concilio repertum est justo Iudicio curiae Regis quod Howell Dha nequiter egisset extra Morgan Hen filium sui Huwen depulsus est Howell Dha ab his duabus Terris the Lands then in question sine recuperatione Postea Rex Edgarus dedit concessit Hueno Morgan Hen illas duas Terras Istradum Euwias in Episcopatu Landas constituas sicuti suam Propriam Hereditatem illas easdem duas Terras sibi Heredibus suis Per chartam suam sine Calumpnia alicujus Terreni hominis confirmavit communi nostro assensu testimonio omnium Archiepiscoporum Episcop Abbatum Comitum Baronum totius Angliae Walliae factum est coram Rege Edgaro in pleno concilio c. This Record of King Edgar is in Codicae Landavensi fol. 103. I find it cited by the great Antiquary Sir Henry Spelman and it may be compared with the Monk of Malmsbury and Matthew of Westminster I must not relate the Visions or Predictions of the Fates of this Kingdom which Historians record about the Reign of King Edgar they are in print and may be read of all Besides the Prophecies of both the Merlins for the Scottish Merlin was fuller and plainer than the British in Vortigers time That I say nothing of Cadwalladers Vision or Alans Council which was long before the other Alane wrote on Merlin or of the famous Eagle of Shaftsbury that agreed with others in the Britains recovering their Kingdom again after their grand Visit at Rome whence they must bring Cadwalladers bones This leadeth me also to the Sybils Prophecy of three British Princes that should conquer Rome Brennus was one King Arthur some make the second Et quis fuit alter And of these Sybils or one of them sending a book to King Bladud so famous for the Bath and Greek-Schools or University at Stamford the Scotish Merlin seemeth to have written if among others I mistake not Baleus But of Edgar's Parliaments one was at Salisbury so we read in Chaucer or the old Fructus Temporum by Iulian Notary at St. Albans And of another of his Parliaments at Bath the Saxon Chronology at the year 973. His Laws are now printed and their Title is The Acts of King Edgar and his Parliament Mid his Witena Getheate gerred c. Here we find much considerable of Thanes which all will have to be Noble-men but it must be with them a Saxon word And Dhenian is to serve whence the Princes Motto Ic Dhaen For so it should rather be than in Dutch Ich Dien But why should Noble-men or those that were the freest have their name from serving Here they flie to Knights-service King-service or I know not what most proper as they say to free and Noble-men But from a Judge or Fleta we may be taught that the Saxon Dhaen or Thaen is a Servant but Thayn a Free-man And in this sence it seemeth to be used here As also in Denmark and Ireland Nor did the Britains differ much whose Haene or Hane is an Eldar although Hyne be sometimes used for a Servant And so the Irish Tane is Elder whence their Tanistry or Eldership the cause or sad occasion of such bloudshed These British Hanes the Saxons in compliance called Ealdermen St. Edward's Laws afford so much and it may be Thanes although with them they had the name of Greeues or Graves suiting well with Elders Hanes or Senators With which we may compare the Phrase of Seniores which we read so oft in Gildas Nennius Monmouth and others of the British and first Saxons times in Britain I should be tedious in but glancing over the Acts of Parliament in Edgar's time That of the Standard at Winchester is considerable and that of one Coyn through all the Kingdom The Mirrour is plain in making it an Act of Parliament in Saxon times That no King of this Realm should change his Money or embase or enhanse it or make other but of silver Sans l' assent de tout ses Counties Which the Translator is bold to turn Without the Assent of the Lords and all the Commons We may not omit the Act against unjust Judges or Complaints to the King except Justice could not be had at home For which also the Hundred-Courts were again confirmed and the Grand Folkmootes or Sheriffs Turnes established by Act of Parliament Of which and of their relation to Peace and War more in Edward's Laws which may afford a Comment for the Saxon Militia I need not speak of the Parliament at Calna it is famous enough where Considentibus totius Angliae Senatoribus the Roof fell down and hurt them most but St. Dunston Of which Wigornensis Iornalensis Malmsbury Matthew of Westminster and so many others may be cited King Ethelred's Laws have this Title in Lumbard Sapientum Concilium quod Ethelredus Rex promovendae pacis causa habuit Wodstoci Merciae quae legibus Anglorum gubernatur aefter Aengla-Lage Post Anglis Lagam as an old Author turneth it In those Acts we read of Ordale Sythan the Gemot waes aet Bromdune Post Bromdune Concilium It seems a Parliament And again Iussum ac scitum hoc nostrum si quis neglexerit aut profuâ quisque virili parte non obierit ex nostra omnium sententiâ Regi 100 Dependito By which it appeareth to be a Parliament and not the King only that made those Laws That which Sir Henry Spelman calleth Concilium AE 〈…〉 e Generale was clearly one of King Ethelred's Parliaments and the very Title is De Witena Geâ—ednessan and tha Geraednessa the Englaraed Witan gee 〈…〉 c. And divers Chapters begin Witena Geraednesse is enacted by Parliament And the old Latin Copy of this Parliament telleth us that in it were Vniversi Anglorum Optimates Ethelredi Regis Edicto convocato Plebis multitudine collectae Regis Edicto A Writ of Summons to all the Lords and for choice of the Commons a full and clear Parliament In this Parliament were divers Acts for the Militia both by Land and Sea as most Parliaments after King Edgar and among others for Castles Forts Cities Bridges and time of the Fleets setting out to Sea It is made Treason for any to destroy a Ship that was provided for the State-service Navem in Reipublicae expeditionem designatam as a learned man translateth the Saxon. And no Souldier must depart without leave on forfeit of all his Estate None may oppose the Laws but his Head or a grievous Mulct according to the Offences quality must recompence It was here also enacted That Efferatur
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
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
solummodo publica so Glanvil but in Bracton Fama apud graves bonos and in Fleta apud bonos graves infamia yet must the Party be Attached vel per Carceris Inclusionem vel per Plegios idoneos so it was in Glanvils time for all but Homicide but in Fleta's Diffamatus vel Accusatus attachiabitur per Corpus Captus Remanebit donec se indè Legitimè acquietaverit That is in him till he have Legally cleared himself from all Seducement of the King Kingdom or Kingdoms Army Omnemque seductionem Regis Regni vel sui exercitus quicquid sit contra Pacem suam which Glanvil expresseth thus Machinatum fuisse vel aliquid fecisse in mortem Regis vel seditionem Regni vel Exercitus vel Consensisse vel Consilium dedisse vel Authoritatem praestitisse In such Cases also they debate who should be Iudge and for this they all agree in that fundamental Principle of right Reason and Nature that Parties may never be Iudges in their own Causes for which besides all others the Mirror is large and clear among all Exceptions to the Iudges Person if he have no Commission or refuse to shew it as he ought or be Party c. of which also Britton in Appeals cap. 22. fol. 41. And for this reason Bracton and Fleta with others agree that in such Causes neither the King who might so they say be Iudex Actor nor the Kings Commissioners should Judge or determine But Curia Pares except only when the Case is not of Life but finable for in such the Kings Commissioners may determine sine Paribus But who are these Peers and what is this Court One of Bractons first Maxims in his second Chap. is that all obscure difficult and new Judgments ought to be suspended Usque ad magnam Curiam ibi per Consilium Curiae terminentur Fleta is somewhat clearer in his second Book and second Chap. Habet enim Rex curiam suam in Concilio suo in Parliamentis suis presentibus Prelatis Com. Baron Proceribus aliis viris Peritis ubi terminatae sunt Dubitationes Iudiciorum Novis injuriis emersis Nova constituuntur Remedia unicuique Iustitia prout meruit Retribuetur Ibidem Unicuique What to every Man in all the Kingdom or how far and how high may this extend or reach Shall we propound this Doubt to the Antient Parliaments who were most like to know their Power and Priviledge The Law was clear enough before but some were pleased not to think it so and therefore in the Statutes of Marlbridge as old as Henry the third in the first place of all it was agreed and enacted That all men Living of this Kingdom as vvell high as lovv tam Majores quam Minores must and ought submit to Judgment Iustitiam habeant Recipiant in Curia Domini Regis That this Expression may go lovver than the Court of Parliament I can not deny nor vvill others I suppose deny but that it may and must be yielded to the highest Court of all One of the Clauses of the Kings duty expressed in the Saxon Lavvs is to do all things rightly by the Judgment of his great Court per Iudicium Procerum Regni and again by that great Council to maintain or do Justice and Judgment Iudicium Rectum Facere Iustitiam tenere per Concilium Procerum Regni All vvhich and much more in those Lavvs must be solemnly Svvorn by the King before the Kingdom and the Clergy in propria persona inspectis tactis Sacrosanctis Evangeliis c. coram Regno Sacerdote Clero This may be considered antequam ab Archiepiscopis Episcopis Regni Coronetur Even before he may he Crowned or should require his Subjects Homage Insomuch that vvhen the Subjects have tendered Homage as some Lords did to King Henry the fifth before the King had done his Homage and Sworn his Fealty to the State and Laws It hath been observed by Historians as some kind of Comet that I say not a Prodigy in State Politicks And besides all the forms of Coronation found in Hoveden Walsingham and other Historians secundum antiqua Statuta as Matthew Paris speaketh it is clear enough in the Records and Rolls of Richard the second before others how the King first did take that Solemn Oath and then the Archbishop went to every side of the Scaffold relating to the Kingdom how the King was Svvorn and then he asked them si ipsi consentire vellent if they would now give consent to take him for their King and Liege Lord and if so they came and did him Homage If they would consent What was it at their Choyce and were our English Kings Elective plain Elective sure it would be duely weighed and I confess some things have made me very much suspect they were Elective And the rather also by considering the great Care and Importunity of some Kings to procure the Crown to be setled by Parliament upon their Heirs Which might intimate that indeed it was not their Inheritance at Common Law for it was seldom seen I suppose that English Men have taken much Pains to obtain an Act of Parliament to settle their Inheritance on their own Heirs except they were Illegitimate or Aliens And upon search I cannot find the old Oaths of Allegiance did relate to the Kings Heirs or Successors either in the Saxon or first Norman times although we find the Oath in old Laws long before Edw. the second and in old Lawyers Bracton Britton Fleta with the Mirror punctual in the Oath of Allegiance but not a Syllable of Heirs or Successors that I can find Yet in the times of Henry the first and Henry the second there was some special Acts of Parliament for setling the Crown on Maud the Emperess or her Issue and King Henry's Son was Crowned in his Fathers Reign and of that time the Salvo in Glanvil Regi Haeredibus which I find not in any other old Lawyer and I believe it not usual till the great Quarrels of York and Lancaster it may be much Later But all such Acts for tying the Crown to such or such a Family do not evince a former Right of Succession any more than the House of Austria doth prove the Empire not to be Elective though it now seem as entailed on that Family I say not how often it hath been adjudged that Affirmative Statutes do not annul the Common Law and that one may Prescribe against a Statute Negative but in Affirmance of the Common Law for which the Comments on Littletons Burgage So that if an English King was Elective by the Common Law the Kingdom might prescribe against late Statutes which might erre much more than they could oblige all future Parliaments but they might still be free and most of all in what was due before by Common Law Let us discuss it then and see what Antient Lawyers and Historians do record about our Kings
which was some Repetition of his Coronation Oath Some affirm that he refused to be Crowned by Canterbury but Neubrigensis telleth us that he sought it of him Tyranni nomen exhorrescens legitimi Principis personam induere gestiens but Canterbury denied to lay on his hands Viro Cruento alieni Iuris insavori Then he complyed with York and bound himself Sacris Sacramentis pro Conservanda Republica c. It might also be added that if K. Edward might dispose the Crown as his own Fee yet by the Common-Law or Statute of Calcuth he could not dispose it to a Bastard as K. William is expresly called in the Letters sent to the Pope from the Parliament of Lincoln in Eward the first besides his own Charters and of attempts to Legitimate him that so he might succeed by Common-law See the Comments on Merton in the second Part of Institutes and of the Laws of Norway before But in the Old Book of Caen we may find K. William on his death Bed wishing that his Son might be King of England which he professed he neither found or left as Inheritance Neminem Anglici Regni Constituo Haeredem non enim Tantum Decus Haereditario Iure possedi That K. William the second K. Henry the first and K. Stephen came to the Crown by Election without Right of Succession is so much agreed by all that it were vain to prove it Their Elections and their Oaths are every where among the Monks and good Historians So also of Henry the second and Rich. the first But in K. Iohn's Coronation we are brought beyond dispute in full Parliament of Archshops Earls Barons and all others which were to be present the Arch-bishop stood in the midst and said Audite universi noverit Discretio vestra c. It is well known to you All that no Man hath Right of Succession to this Crown except that by unanimous consent of the Kingdom with Invocation on the Holy Ghost he be Elected from his own Deserts Lectus secundum Morum Eminantiam praeelectus c. But if any of the last Kings Race be more worthy and better than others his Election is more proper or more Reasonable Pronius promptius in Electionem ejus est consentiendum As it now is in Earl John here present Nor was any one found that could dissent or oppose what was so spoken for they all knew it was not without much Reason and good Warrant from their Laws and Customs Scïentes quod sine Causa hoc non sic definiverat For which Matthew Paris or Wendover may be compared with Hoveden Westminster and others of those Times Which seemeth most rightly to state the nature of Succession as it was in this Kingdom So that all did amount but to this That if a King had such Children so qualified and so Educated that they were above others in Vertue Wisdom and true worth or at least Caeteres Pares they were the most likely Candidates for the Crown But as we found before among the Iews in the strictest Succession where the Crown was especially tied to the House of David yet their great Sanhedrin had alwayes the Power and Right to determine of the Claims Interests Deserts and Vertues of Heirs or all Pretenders So if here we allow not such a Legal power of Judging of Claims or Titles to be placed somewhere or other our Ancestors did leave the Crown at a more blind uncertainty than in all other things they were accustomed from the Law of Nature and Right Reason I might add the Formal of Coronation joyned to the Irish Modus of Parliament under the Great Seal of Henry the Fourth where we read Electio à Plebe ad Regem ut consecretur Postquam ad Idem iterum Consenserit and again Electum interroget Metropolitanus c. How our Allegiance was of Old tied to the Kings Person not to his Heirs nor to his Person but together with the Kingdom and the Laws and Rights thereof hath been observed already Much I might add of latter times Nay that very Statute of Henry the Seventh which of late was pressed for the King and his Militia or taking Arms with him as Allegiance required doth expresly declare our Allegiance to be to the Kingdom with the King and that by such Allegiance men are tied to serve the King for defence of him and the Land And for the Kings Heirs I find them not in our Allegiance Yet the Statutes of Edw. 2. are punctual in expressing the Kings Prerogative or Rights of the Crown but where is provision for his Heirs In Eward the Third the Iudges Oaths were made and stand among the Statutes as enacted by Parliament although I do not find it so upon the Rolls And there is a Clause against Consent to the Kings Damage or Disherison So also it is in the Oaths of divers in the Courts of Justice as of Masters of Chnacery with the Kings Serjeants or Councel at Law and others but not so by Parliament See the third Part of Institutes Cap. 101. Yet our Old Allegiance did forbid Disherison or Damage but with Limitation as we shewed before The late Oaths of Allegiance in King Iames and of Supremacy in Q. Elizabeth taken by Parliament-men and divers others are to the Kings Person and his Heirs and Successors with particular Relation to defence of the Crown and Dignities thereof Which is Remarkable and that which may seem to excuse some in not assenting to others which are not so obliged and yet it is thought by some that the main or onely meaning of those Oaths was against Rome or forreign Enemies For which also a Declaration in the Queens Injunctions may be considered But in all Cases of real Scruple I cannot censure any that in a quiet humble manner seeking Peace and Truth followeth his Conscience till it is rightly informed In the Quarrels of York and Lancaster there was an Act in Henry the Fourth to entail the Crown upon the Kings Issue of which four are there named But in Henry the Eighth the Parliament declared the Succession to the Crown not yet settled or cleared enough and then it was entailed again and for lack Heirs Male upon Elizabeth But this again repealed in Mary and again in Elizabeth and Iames. How much or how little these annulled the Common-law I must submit to others lest upon debate I should be forced to yield it might be possible for future Parliaments to reduce Succession to Election as justly as some late Parliaments did turn the Common-law of Election into such or such a Succession which can only stand by Statute if it be true as all tell us that there was no entailed Inheritance but by Statute-law since the Second of Westminster of which before How little Power Kings had over their Crown or Kingdom without consent of Parliament besides all that is said already might be further cleared from the acknowledgments of Kings Themselves below the time of the Conquest
forth Nay till she have leisure to attend with Joy that a Man-child is born to her Some have thought the Travailer to be Gentile Church but it is Interwoven with Bethlem Ephrata I need not spend much time to Parallel the two Estates of our Messiah with this Ioseph and this Benjamin The Lord will dwell between his Shoulders more then when the Holy Place was in the Tribe of Benjamin he also was cut off as Ioseph was but did prolong his Days and prosper Yet a little while I hope and Benjamin shall come down from his good Father and then shall Ioseph Ben Ioseph make himself known to his Brethren who did hate him shout at him cast him into the Pit deliver him to the Gentiles But he was brought from Prison and from Iudgment At thirty Years he stood before the King and was made Governour of all His Brethren must come and bow down to him tho they rememb'red not his Affliction yet he preserveth them in Aegypt and tho Dead yet goeth before them to Canaan in his Coffin of which the Jews have many Stories in the Life of Moses and others They shall see him who they have pierced and shall weep over him For he shall melt them by saying I am Joseph your Brother But he must stay till Aegypt be destroyed by Famine and be glad to yield it self to Ioseph he must sit till his Enemies be put under him And then shall come the Restitution when Babylon is pulled down It filleth all the Scene as yet And whil'st Satan acteth as if he were God it is no Wonder that we see so little done of Good I must not trouble the World with the time of this great Change But it may be sought and perhaps found not only by Types but plain Expressions in Moses and the Prophets besides our Saviour's Words and the Revelation This I may observe that as Aegypt was broken before the Tabernacle was first raised and Edom before the first Temple and Babylon before the Second So both Edom and Babylon before the Third in Ezekiel and St. Iohn for I now seek not the three Temples in Ezekiel Sitnah and Rohoboth digged by Isaac as do many Iews Of all the Crimes of Edom and Babylon this hath a heavy Charge that the afflicted Heber the People of his Love But those that Curse them must be Cursed How great a share in that this Kingdom had I cannot say there are Mistakes on either side We say they Crucifyed a Child or more They do deny it and we prove it not They say we drove them out from hence it is not clear They were in Favour once at Court they did deserve Respect who brought the Crown two hundred thousand Pounds per Annum little less as mony now for divers Years together And King Iohn did give or sell them a Charter of Priesthood or rather Presbytery for I know not that by this they ever Sacrificed And the Charter yet remaineth for old Jacob the Presbyter of all the Jews in England during Life Their Use and Brocage was so burthensom that in King Edward the First one Parliament did quite deny them Leave of Usury and that did draw them but not drive them hence It was their Motion that obtained a Writ for safer Passage which yet secured them not but that the best of them were drowned in the Thames by Fraud of those that undertook to Waft them over But they hanged for abusing those poor Jews The next Parliament did grant a whole Fifteenth pro expulsione Iudaeorum yet they had but a Writ for a Pasport and they were but 15000 and odd if I may believe a great learned Judg who has so Reported and Recorded How they are now I need not say although I might also bear them Witness that they are yet Zealous in their Way nor do they wholly want Ingenious Able Men of whom I cannot but with Honour mention him that has so much obliged the World by his learned Writings â—ab Menasseh Ben Israel a very Learned Civil Man and a Lover of our Nation The more I think upon the great Change now coming on them and all the World the more I would be Just and Merciful to them to all nay Universal Sweetness if I could a Christian overcoming all with Love And such one should be more I believe if one had conquered all the World For then there would be nothing left but Self to Conquer Then one would return in Love and say come forth my Enemies and Live enjoy your Rights your Peace and Liberties with all your Ioyes There shall not an Hair fall off your Heads By this it shall be known that God alone must Reign I know that Antichrist and Babylon must fall and rise no more But these are more in Hearts then any Walls or any City Not only in the Heart much less the Name of King or Lord I Judg my self or so I should much rather and much heavier than I Judg another For I see much cause to fear my self lest I may keep a little Pretty rather Ugly Antichrist within my Breast whil'st I am busie to destroy some others more then it in others or my self There is a sweeping Rain oppressing more then any Thunder There is a Pride most proper to a Leathern Coat And one there was that trod on Pato's Pride with Prouder it was said and fouler Heels I find it in the Scriptures thence I know that Babylon must down and be thrown down with Violence More Force it may seem than Form of Law Yet even in such things God seldom doth that which is not just in Man's Eye also Nor did he ruine Babylon or spoyl Aegypt till they oppressed Israel Nor did he bring the Iews by pure Force to possess Canaan before they had purchased Sechem or Machpela with such a Legal Seisin as might warrant Force or Forcible Disseisors that so held Possession against the true Owners And what ever Force may appear in pulling down of Babylon I do not Read or Know that the new Temple or the new Ierusalem shall be built with Violence or by Violent Men that may ruffle much in forcing Babylon But they may perish by the Sword that use it most Moses was the meekest Man alive yet he had a special Commission that was a Patent sealed with the Arms and Impress of Heaven to ruine or impoverish Aegypt He pulled down indeed but he raised little but a Tabernacle Only a Shadow of good things to come And it must be abolished by him that was typified by Ioshua For Moses could not bring them into Rest altho by Force and a mighty Hand he brought them out of Aegypt David was a Warriour and a mighty puller down He cut off the Head of Goliah and weakened all the Philistins he threshed Ammon Moab was his Washpot and over Edom he casts his Shoe He shall be brought into the strong City and shall harrow Edom and sow it with Salt or cut off all the
rough East-Wind Chap. 27 28. But there is a more inward Proportion yet to be found in rational Agents when their Activity is proportional to their Being and to their Knowing and when ever these three are preserved Equal or Proportional there is true Liberty So it seemeth to be in God may be so darkly shadow out the Blessed Trinity His Being Knowing and Activity are Infinite and therfore Proportional to each other and absolutely Free altho Necessary By his Knowing he freely comprehendeth and by his Acting freely diffuseth his own Being So that all the Creatures seem as several Rayes or Ideas rightly called Species acted that is diffused through infinite Knowledg from or rather within Infinite Being which the Iews call the Place in which we Live and Move and have our Being Creation was of somewhat not appearing before so both Reason and the Scripture teach But how it was or could be from meer Nothing would be more considered and it may be the Hebrew Word may signify to Cleer Manifest or Reveal somewhat hidden before rather than to make of Nothing Something De novo which may seem impossible if there ever was Being Infinite as much real Entity as there could be altho not so visible in all its Moods as it was since the Revelation which we call Creation All the Creatures have some Image of the Creator's Being and Activity it may be also some kind of Knowing suitable to both for which there is much to be said and perhaps more then is yet written by any de sensu Rerum where we might also find Causes of Antipathies and such as are now called occult Qualities And wherever Activity for this is most to Sence and by this we used to measure Freedom tho it should it be in Knowing as much as in Doing is preserved equal or proportional to Being there and there only seemeth to be true Liberty which may most appear in the Actings of those Beings which are most knowing Shew me then the Sphear of Man's Being and you may quickly find the Measure of his Freedom his being is by all agreed to be Rational and Reason therefore is the proper Measure of his Liberty For he is then Free when his Activity is preserved equal or proportional to his Being this is Rational and so must that and Man is then and then only Free when he can Act what he should Act according to right Reason This is the Law of his Nature which is Rational and Reason is his Royal Collar of S. S. S. or a Chain of Pretious Pearls which Nature hath put about his Neck and Arms as a Badg of Honour and most happy Freedom This Digression would be scarce excusable but that our Law doth so adore right Reason that is a Maxim What is contrary to Reason is contrary to Law Knights Service with Ward and Marriage draweth Relief but Reasonable by common Law before the Charter and the Statutes do ascertain Aydes which were before to be Reasonable Guardian in Chivalry need not account but Guardian in Socage Prochein Amy or Tutor Aliene be liable to a reasonable Account For the old Writ requires Compotum rationabilem But an Action of Account will not lye against an Executor to such in Socage tho this hath been pressed in Parliament because it was not reasonable but in case of the King it was so adjudged Tenant at Will ejected by his Lord shall by Common Law have reasonable Time to remove his Family and Goods with free Egress and Regress during the said Fine reasonable Tenant by Copy with Fine uncertain is not wholly at his Lord's Pleasure for by Common Law he must only make a Fine reasonable Housboot Hedgboot Ploughboot all Estovers both for Tenants and Prisoners must be reasonable and so must all Partitions between Parceners and upon Elegit c. Which are therefore not left to the Sole Pleasure of a Sheriff or of any other but in a sworn Enquest as we may find in the Writ de Rationabili Partitione In divers Mannors there be many petty Customs which can hardly be brought into publick View but for those and for all the Law hath a short Text Que nest pas Encountre reason poit bion estre admitte allowe And the great Commentator addeth Lex est summa Ratio If you ask him who must determin of Reason or what is reasonable his Answer would be that if any man find himself aggrieved by his Lord or his Fellow Tenants the Law supposeth the Iudges Breast to be a sufficient Closet or if you will a Castle for right Reason I remember one Case and there may be divers in which the Law leaveth private Men even in their own Causes to be Iudges of Reason or what is reasonable It is a case of Escuage The great Charter dispenseth with personal Service in some Cases where it is not reasonable a Man should serve in Person and the Reason of this runneth so through all Escuage that if any Man will send another in his Room the Law dispenseth with it supposing he seth reason not to attend in Person Nor may he by Law be compelled in such Case against his own Reason Most if not all other Cases in that Tenure are by Common Law left to the immediate Reason of the Parliament which may be worth a little Pause as that which may somewhat clear the grand Question of the MILITIA It is true that by the Common Law and by the Laws of the Confessor cited by some to assert the Commission of Array Men ought indeed to have Arms and them to keep in Readiness for Defence of the King and Kingdom But it is also true that this besides other Passages is strangely cited and applyed for Defence of that Commission of Array For altho the Close of the Sentence be as they say Iuxta praeceptum Domini Regis c. Yet the same Sentence had they cited it whole seemeth to be much more against the Array than for it For the Arms required there must be Assessed by Common Consent and that also limited in that very Sentence to the Proportion of ever Man's Estate and Fee for the Defence of the King and Kingdom and for the Service due to the Lords Iuxta praeceptum Domini Regis and these Words in this place do refer to the immediate precedent Words Servitium Dominorum which by the Custom of the Kingdom was so Limited that in all Homage or Fealty there used to be added this Salvo Salve lay foy que jeo Doi à Seignior le Roy. And lest King Edward's Laws should not be plain enough secundùm quod eis statutum est adjudicatum quod debent King William the first by Advice of his great Council explained them thus that nothing should be exacted or taken but Liberum Servitium free Service Prout statutum est per commune concilium totius regni as it was established by the Common Council of the whole Kingdom which is also a clear Proof for such
Lists which I would avoid as a Purgatory being otherwise I say not better imployed than in such unprofitable Wranglings I should believe it not very difficult much less impossible to maintain That both the Moulding and Manage the Make and the Use of the Kingdoms Militia was ever immediately subject to the Command of the Courts of Iustice especially the Parliaments which may in a large Sense of Law be called the Crown or King's Politick Capacity but never I think to the King's Person alone which in Law is still an Infant as the Mirrour expresly calls him though his common Capacity be ever of age Be the Person a Child an Infant Lunatick Incompos Mentis or a Woman which sure our Ancestors could not but deem a most unlikely Person for a wise and valiant General If I were compelled to argue this it should not be only from right Reason or the Law of Nature which yet to me seemeth much to encline this way The Feet are to bear and the Hands to help to hold to bind and rub the Head in any Distemper or Weakness but if I should hear of any Man born with his Heels in his Neck or his Hands tyed to his Head or immediately under his Chin I should think it a Monster And wherever both Hands and Feet are at their due Distance from the Head with divers Nerves and other Vessels Bones and other parts between them yet I never heard or knew that they did obey the Head till it did command itself and them also by Reason or till it also doth Obey not only its own Eyes and Ears but the Common Sense and Reason of the Soul I must confess I have heard that Ticho-Brah did sometimes imagine that he found Mars below or under the Sun But if it were really so it seems as great a Prodigy in Nature as the new Star and that of Mars rather than a new Star in Cassiopeia might presage those sad Commotions which have since followed in many Places of Europe while Mars hath been so much below or under the Sun For by Nature Mars was said and ever thought to be placed immediately under Iupiter the great Judg or Court of Iustice which should command the Sword And so it doth by Law For in England the Iudgments given in any Court of Record do so command the Militia for Execution for a Writ runs of Course which was made by Common Consent and cannot be denyed Release to all Actions will not hold against Execution except all Suits were also released But this is such a Suit as the Law calls a Demand which may not be denyed And for other Cases of Routs Riots unlawful Assemblies Invasions c. The Posse Comitatus and by Consequence the Posse Regni was Disposed and Commanded by known sworn Officers that acted Virtute Officii by the Law and Custom of the Kingdom For it may be known that the old Iustices or Conservators of the Peace were chosen by the Counties as appeareth by Writs yet to be read from the Rolls of Edward the First And now their Commission and their Power dependeth on Parliament Nor could the Chancery have given such a Power had it not been so Established by Parliament which hath also strictly provided for their Legal Nomination and Election For which the Statutes of Richard the Second Henry the Fifth Henry the Sixth and before them all Edward the third thought it were not printed And it is very well known how by the Common-Law and Custom of the Kingdom all the Sheriffs do command the Posse Regni in their several Counties and that not onely Execution of Writs which may be thought to be Matters of Peace But the Lawyers know that Sheriff is Custos Legis and Reipublicae as well as of Peace of which he is the Principal Conservator in his Shire and County Nor may it be Presumption to say That all these Sheriffs also ought to be and so were chosen by the People as is sufficiently found in Hoveden and in the Laws of the Confessor And in full Parliament of Edward the first it was declared to be the Law and Custom of the Kingdom and therefore so setled in the Choice of the People There was in latter times some Alteration made in Choice of Sheriffs but it was by Parliament However we all know that Headboroughs Constables greater men than themselves know Coroners and divers others are yet still chosen in the Counties and do act by Custom and Common-Law And the Sheriff also however he be chosen yet he stands not by Commission nor ought to fall with Kings death But is a standing Officer by Common-Law Who may command all Lords Knights Gentlemen and others in his County by his Writ of Assistance Which issueth of course to every Sheriff I need not say how little the Kings Personal Command or Warrant can by Law interrupt or hinder the Process of Sheriffs Iustices Constables or others in their legal course for the Publick Peace Yea insomuch that if I should have beaten a Drum or raised Forces to rescue King Henry the Eighth from the Compter for abusing a Petty Watch in a Night-walk I might have been arraigned for it And so I might have been for refusing to fire the Beacons or to have raised the Counties if I had seen a Navie of French or Turks landing in King Iohn's time Although the King had come to me and bid me quiet because they were Friends or such as he invited in for the good of his Kingdom Which from his own Mouth or under his hand would have been no legal Supersedeas to a private man in case of such Danger much less to a Sheriff or other sworn Officer For in such cases of Apparent Danger any man that is next may esteem himself an Officer as in quenching great Fires or damming out the Sea And in such though the King himself should forbid me or get me indicted I may demur and put my self on the Judges of Law especially Parliament the most proper Judges in such Causes And to Lawyers I need not cite Records or Precedents Nor shall I need to adde That in case of Foreign Invasion or Intestine Motions and Breaches of Publick Peace the Common known Laws of the Land will warrant a Sheriff Officer or private man to go over a Pale an Hedge a Ditch or other Bound of a Shire or County In which our Ancestors were not so ceremonious or superstitious in case of hot Pursuit or the like Although they were punctual enough in keeping of Land-marks And in Peace in cases of real Actions and personal Trials They were very tender of those Marks in special that bounded out Shires or Counties The Original of Shires and Sheriffs is generally fixed upon King Alfred But the old Abbot of Crowland whence this arose seemeth to speak of new Names rather than Things for himself hath Provincias Comites Vice Domini though not Vice Comites of Ages before King Alfred And the Monk of
quem injurià afficiant Beseeching them mainly to mind this That they wronged none A most pious Christian Motion And our Monthly County-Courts are as old as this Parliament at Exon. The Acts are printed But I must not digress to their Ordeals appointed there for Perjury In this Kings Reign the Pope sent his Bull to excommunicate the King and all his Subjects For that Per 7 annos destituta fuerat Episcopis omnis Regio Gavisorum id est West-Saxonum Whereupon the King summoned a Parliament Convocavit Synodum Senatorum Gentis Anglorum As saith the Monk of Malmsbury Et Eligerunt constituerunt Singulos Episcopos Singulis Provinciis Gavisorum For the Bishops Shire used to be equal to the Earls or the Ealdormens Shire with whom he sate in Folkmoote Et quod Olim duo habuerunt in quinque diviserunt King Ethelstane came next He was the first of all the English Kings that ruled over all the Island conquering Wales and regaining Scotland Which being subject to England as a Dukedom thereof was advanced to a Politick and Royal Kingdom As the learned Fortescue doth plainly affirm And for this against all that Buchanan writeth I need onely refer to the Authors and Records cited by the great Master of Antiquities with other Learning Mr. Selden in his short but pithy Notes on it with Hengham To which we may adde somewhat in Polydore and the Saxon Chronology from the year 934 but especially from Oswald's Laws and others of the famous Edgar vouching Ethelstane for Scotland Of which we read in many places beside the fourth Part of the great Reports But that victorious Monarch suffered the Scot to reign under him saying That it was more glorious to make a King than to be a King A pious Prince to whom we owe for translating the Bible from Hebrew which some think he did by some Converted Jews Among his Laws now extant we find divers enacted in Celebri Gratanleano Concilio where there were Archiep. Optimates Sapientes ab Ethelstano vocati frequentissimi And again at Exon we find him Mid his Wytan and their Wergylds for the King Archbishop Eorles Bishops Ealdermen and other Degrees may suffice to prove them to be Acts of Parliament With those several Degrees there mentioned we may compare the Laws of King Edgar and Canute in divers places one of the Ranks of their Nobility as a General or great Commander in Wars which may be observed for the Militia Edmund succeeded and at London holds a Parliament of Clergy and Laity ge Godcundra ge Worulcundra And again Mid Witena getheahte gegodra hada gelewedra And to the Parliament he giveth solemn Thanks for their Aid in setling the Kingdoms Peace His Laws are printed And we omit his Charter to the Church of Glastonbury which was made cum Concilio Consensu Optimatum as we read in Malmsbury But I must not omit that Parliament of his recorded in the Mirrour where we find a kind of Appeal or a legal Accusation of Treason brought by Roceline against Walligrat in full Parliament in the time of King Edmund In King Edred's Reign there was a Parliament solemnly summoned by Writ as we read at large in the Abbot of Crowland To which there was then a great Charter confirmed being drawn or dictated by Turketulus then Abbot but he had been Lord Chancellor And the date is in Festo Nat ' B. Mariae cum Vniversi Magnates Regni per Regis Edictum summoniti tam Archiepiscopi Episcopi ac Abbates quam Caeteri totius Regni Proceres Optimates Londoniis Convenissent ad tractandum de Negotiis Publicis totius Regni in Communi Concilio Edgar was a great Monarch and as great a Conqueror by Sea as Ethelstane by Land It might be easier to shew his four Seas of which so many speak than to set their exact bounds Yet it may not be unworthy of our thoughts to consider how our Ancestors did often divide the Office of their Admirals usually as Nature hath parted our Seas as thinking it indeed too great an honour and a burthen for a Subject to be Admiral of all the Seas of such an Island But the late Cardinal of France did wisely it was thought dispose or rather retain that Office as the best Jewel of that Kingdom which yet by Sea might yield to this But I must not digress nor can I determine the bounds of Edgar's Conquest to the North they say to Norway or the West Of which some speak as if they would but give us hints for farther search and Queries I dare not affirm that in those days our Saxon or British Ancestors did know America But if we may credit any Records besides the Scriptures I believe or know it might be said and proved well that this new World was known and partly inhabited by Britains or by Saxons from this Island three or four hundred years before the Spaniards coming thither Nay the more I consider the Discourses which did pass between the Spaniards and the Mexicans the more I could believe the King himself of Mexico might possibly descend from those that went from hence to Florida or rather Mexico So that we need not wonder at the British Words or Beads the Crucifix or other Reliques which the Spaniards found at their Arrival And for this besides so many other Authors we have much among the British Annals Those in special left by Caradoc of Lancarvan or from him continued by the Beirdhs of Conwey and Stratford gathered and translated by the learned Llhoyd To which we may adde what Doctor Powell hath of this out of Records and best approved British Authors in the Life of Owen Gwyned or David and Madoe his Sons about the Reign of King Stephen To which at least for that which concerneth Hanno or the old Navigations with Plato's Atlantis or what else appeareth in Aristotle Theophrastus Virgil Seneca with others it may not be amiss to compare two late and very learned French Authors of Peleg and orbis maritimus very worthy I think of good perusal But to return to Edgar's Parliaments How that great Council did often dispose the King himself we must discourse in a fitter place We shall now but observe that good Historians tell us that King Edgar by the Council of the Kingdom did repeal the Acts of Edwin both his brother and predecessor Convocato ad Brandanfordeam Regni Concilio fratris Edwini Acta decreta rescindit And the famous Oswald's Law was signed by this King Cum consensu Concilio astipulatione Archiepiscoporum Principium Magnatum It is printed and found in ancient Authors King Edgar's Charter to Glastonbury reciting the Acts of so many Kings before him was confirmed Generali assensu Pontificum Abbatum Optimatum If we may believe the old Monk And the Charter is to be read at large Archiepiscopis adhortantibus consentiente etiam annuente Brithelmo Fontanensi Episcopo caeterisque Episcopis Abbatibus Primatibus And
Parliamento personaliter Existentibus And the Title of these Acts is Statutae Canuti Regis Angl. Dan. Norw venerando Sapientum ejus Concilio ad Laudem Gloriam Dei sui Regalitatem Reipub. Utilitatem Commune Commodum habita in S. Nat. D. apud Winton c. This I find also cited by the great Judge in one part of his Reports but fuller by Sir Henry Spelman It would be tedious and superfluous to cite the Authors that assert he did confirm King Edgar's Laws in full Parliament For which we might produce some better or at least much older than good Bale or Grafton Many of his Acts of Parliament are printed Consultum quod Canut Angl. Dan. Norw Rex Sapientum Concilio Wintoniae Sancivit Here Allegiance or Fealty setled by Parliament and afterwards Praecipimus uniuscujusque Ordinis singuli Muneris atque Officii sui Religionem Diligenter cauteque teneant And among other Encouragements to Chastity this is one That such chast men of God should enjoy the same Rights or Priviledges with Thanes and Ethelstane's Laws do equal Priests with Thanes But there are two or three degrees of Thanes in these Laws about the Hereots for the Eorles and Thanes c. much to be marked as pertaining to the Militia For which and for all Canutes Laws the old MSS. Huntingdon is worth perusal Again we find other Statutes Civil or Politick Sapientum adhibito Consilio Mid Minan Witenan raede that Man heald ofer eall Englaland With provision against Thieves Robbers for the Peace Hue and Cry c. There are Statutes also for repair of Burgs and Bridges Scyrforhinga praefidii fiat apparatus Terrestis ac Maritimus quoties ejus Muneris Necessitas Reipublicae obvenerit And presently after Quae ad Reipublicae pertinent Vtilitatem Among the Crown-Prerogatives Violata Pacis Divitatae Militiae Mulcta Sheriffs Turns Hundreds and Tythings are here confirmed and the twelve-year-old Fealty with views of Frank-pledge But this Oath was to the Kingdom rather than to the King Fidem det omni se in posterum aetate tum Furti tum Furti Societate Conscientià temperaturum Again of passing Ordeals Sythan tha Gemot waes on Winceaster since the Parliament at Winchester this being at Oxford at after Iussum vero ac Placitum hoc Nostrum si Praepositorum aliquis incuriâ omiserit aut exequi aspernabitur ex Nostrà Omnium Sententia Regi 120 s. Dependito A clear Parliament Si quis alium injustè armis spoliavit eam quae est loco Colli obstricti Mulctam Dependito Healsfange It is also in the same Laws the punishment of false Witnesses Some think it the Pillory some worse as the Original of that Proverbial Letany From Hell and from Halefax See K. Hen. Laws and Helfang Si quis in Militiâ perfectione Militari pacem violaverit vita vel Weregild Mulctator si quid rapuerit pro facti Ratione compensato Si quis Pensionem ad oppida pontesve reficiendos denegarit Militiamve subterfugerit dato is Regi 120 s. Again in those Statutes The King must live upon his own Feormians or Farms which in Saxon afford all needful for man and none may be compelled to give him any Maintenance That the Folk be not burthened It is the 67th Chapter Loss of Dower or Joynture to Widows marrying within twelve months might seem hard but so long she need not pay any Heriot And the same Laws free the Wife from her Husbands Theft although found with her except it be lockt in her Hord Chest or Tyge Dispensae arctae Serinii Of which that Law giveth her leave to keep the Keys But Ina's Laws are hard concerning Children Again for the Militia He that in Sea or Land-fight leaveth his Lord or Comrague Felugo must die as a Traytor his Boocland to the King other 〈…〉 Estate to his Lord. But of him that dieth fighting with his Lord without any Heriot the Heirs may enter and Scyftan hit swithe righte Of this Shift-Land and Gavelkind Lambard in Terra Scripto Perambulation of Kent and Spot of Canterbury besides several Acts of Parliament in Edw. 1. Edw. 3. and Hen. 8. If Celeberrimus ex omni Satrapia Conventus which is there and by King Edgar also to be twice a year or oftner be Parliament as such great men have thought then have we much here also for Power and Priviledge of Parliament Nay more indeed if it were but the Grand Folemoot or Sheriffs Turn so much below a Parliament He that in such a Grand Moot had defended and maintained his Right and Plea to any Land is there setled without dispute for his life and his Heirs or Assigns as his Will should dispose Chapter 76. And again for Priviledge of Parliament or yet lower Sive quis ad Comitia profiscator sive revertatur ab eisdem from Gemote or to Gemote placidissima pace fruitur nisi quidem furti fuerit manifestus Theof Thievery founded more with them than now with us For their twelve-year-Oath of which before at Frank-pledge was onely against Theof which yet seemeth to intend all above it for what forbiddeth the less forbiddeth the greater much more One thing more I may observe through all these and other old Laws there is still so much Religion and plain-hearted Simplicity with Piety expressed that it shews our Ancestors had not yet learned to be ashamed of their God or of looking towards Heaven I have been the longer in these that so I may be the more brief in those that follow for by this time I am come to the Laws of St. Edward as he is called and I should mispend my own time and abuse others in vouching all the Demonstrations of Parliaments in his time His Charters to Westminster are near enough and may be known of all wherein he confesseth his Resolutions for going to Rome But Optimates Communi habito Concilio rogabant me ut ab intentione desisterem his Vows made him more pressing than else he should have been But these also his Parliament undertook to satisfie Et tandem utrisque placuit so he speaks ut mitterentur Legati c. While these stayed at Rome procuring his Absolution a Vision to a Monk commandeth repairing or refounding of St. Peters Westminster as antient as Austin the Monk I cannot omit a passage in one of the Popes Letters of that time telling the King That he must expect great Motions and Alterations for the World was near its great Change and the Kingdom which he calls Sanctorum Regnum foretold in the Scripture was coming to begin and never should have an end King Edward refers it to the Parliament and at length Cum totius Regni Electione they are his own words he sets upon the decayed Minster Which he rebuilt with the Tenth of his whole Estate and there reposed the Reliques which the Popes gave to King Alfred at his Consecration with this grand Priviledge of Refuge and Pardon to any that fled
And where-ever these are found released as to Peterburg Canterbury Westminster but especially to Glassenbury the first and oldest Church in Britain Fons origo totius religionis It may be a clear Demonstration of the Parliaments assent to such a Charter For otherwise they could not be dispensed with by the King as we may find expressed in divers Charters as in those of Crowland which yet had great immunities And of that Restriction Matth. Paris may afford us the true reason because those three were setled for the Kingdom Propter Publicam Regni Vtilitatem ut per ea resisterent hostium in cursibus And K. William's Laws Castel Burg. Civit. fundatae aedificatae ad tuit Gent. Popul Regni ad Defens Regni idcirco observari debent cum omni libertate integritate Ratione Private Castles for habitation may be given in Dower and divided by Pacerners but so may none for publick defence Yet of such also may a man be Tenant by the Curtesie being able to guard them for Publick service of the Common-wealth One grand Objection must be removed but we need not fear it for it will flie or run away of it self 'T is that of the Conquest as many are pleased to call it not attending how little in this they be the Kings Friends for if this were his onely or his main and best Title there might be found in future ages some that may come to think it as lawful to conquer him as it was or could be to conquer them It must be considered for if the foundation be not sure and low the higher the building is the nearer its fall And it hath been observed that the higher Skale got up by accident is more ready to pop down again than it was before while it hung in due poize It seemeth a great weakness to be apt or prone to Suspition and therefore I shall not say I do suspect some that are most zealous for Prerogative or the Title of Conquest to be least acquainted with the Laws or Histories of England But I cannot be wholly free from wonder that any Lawyer or Historian that was friend to the King should be passionate in these which were so clearly quitted by that King whom they call the Conquerour He stood on Stilts or Patents or Pantofles but on plain English ground with two feet as other men The left and the weakest was Succession to Edward whose Kinsman he was and Heir by Will as appeareth by divers Passages in these very Laws of Saint Edward and William which may be seen and read of all But the right Leg with the strongest and best Foot he had to stand upon was the Peoples Assent Consent Acceptance and Election which we shall yet more fully clear when we discuss the Right of Succession or Election to this Crown and Kingdom But for the present it may suffice to observe That all these Laws we now have of King Edward's come to us through the Hands and Grant and Confirmation of King William the Norman and no otherwise Which I need not prove to any that have either read or seen the Laws themselves of which we speak For in the very Title and Preface thereof besides divers other passages in them all this and much more is fully related and recorded For it is there also further added That all those Laws were so presented to the said King William by a sworn Iury out of every County Who did also assert That these which they did present as the Laws of St. Edward were the undoubted Laws and Customs of the Kingdom that had also been collected into a Body by King Edgar and continued though sopite through the Troubles of succeeding Kings till Edward had the leisure to renew or rather confirm what was the Law before Nay when among all those Laws King William did most encline to those which came from Norway whence his Ancestors and Lords had issued forth and where a Bastard might inherit all the Patriarchs of England Compatriotae Regni qui Leges edixerant did so move and press him with such Arguments as may again be well considered that at length in Parliament Concilio habito precatis Baronum the King himself consented as they did desire This is expressed in his own Laws And by his own desire the Archbishop of Canterbury was one of those entrusted with enrolling or recording of those Laws Which to that very King and to his Successors to this very day became one special Clause of the Coronation-Oath Which was To confirm all the Laws and Customs of the Kingdom but especially the Laws of St. Edward called the Confessor And one of King William's own Laws is That all men observe and keep the Laws of King Edward in all things Adauctis his quas constituimus ad Vtilitatem Anglorum If this be not yet clear enough for the Laws themselves which are now extant and may be read and known of all we might confirm it much by Ingulph living at the same time and bringing those Laws with his own hands from London to his Crowland with such an Endorsement or Title of his own making Leges aequissimi Regis Edwardi quas Dominus meus inclitus Rex Willielmus Autenticas esse perpetuas per totum Regnum Angliae inviolabiliterque tenendas sub poenis gravissimis Proclamarat suis Iustitiis commendarat c. He was like enough to know it And the old Book of Litchfield cited in the great Reports besides that of the Iury from every County addeth also That the same King William did by the Counsel of his Barons call by Writ of Summons Summoniri fecit all the Nobles Wise-men Elders of the Witan and learned Lawyers in each County And in that great Parliament Ad Preces Communitatis Anglorum Rex acquievit c. confirming all by Common Council This of Litchsield is now printed in several places and Roger Hoveden agreeth in Henry the Second Nor did he onely confirm but in some things mitigate and in divers explain and clear what might seem obscure or heavy to the People Ad Vtilitatem Anglorum His Laws are now printed both with Mr. Selden's Notes on Eadmerus and with Mr. Wheelock's Impression of the Saxon Laws and History with a very good Preface of Sir Roger Twisden They do oblige us much that love and clear our Laws so far as just and good What Emendations and Additions King William made to St. Edward's Laws in this also of the Militia we have observed before at our unexpected enterance on this Question Which was not at all intended to be once so much as touched but in one Parenthesis Which was past Recovery before this Discourse was so much as designed But now having wandred so much and so far beyond my own purpose as well as my Subject I could almost be perswaded to step a little further and to touch I must no more upon some few passages between the Conquest as they
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
see and proceed in a judicial way Nor would he condemn or execute before he had not onely cleared his justice in himself or to his Angels but also to Abraham Lot and other Lookers on that he still might be justified both when he judgeth and is judged For he still did and will put his Actions on Man's Judgment This Process also towards Sodom is by many of our old Lawyers brought for the Pattern of our Laws in that especially that none may be condemned without a Legal Hearing And in this and divers other things do Bracton and Fleta borrow much from the Laws of Henry the First And be the Matter of Fact never so notorious yet may there be some Plea that no man can foresee or ought to forejudge before he heareth for all men may plead necessity or force upon themselves as well as Right and Law for any thing they do amiss And for this and other Reasons the Law doth suppose all men to be just or excusable till they be Legally heard and adjudged This Difference there is between the Judges and the Law-makers For these they say do suppose all men to be evil but the Judges should suppose all men to be good till they be proved to be evil The Charge and Accusation by the Law of Nature ought to be clear distinct and particular with time and place or other Circumstances else the Party accused cannot discharge himself Universalia non premunt omnino vel opprimunt Generals do not press at all or else they are apt to oppress The Witness and the Evidence must also be so clear that these must condemn rather than the Judge who sitteth as Counsel for the Party accused that so he be not oppressed by or against Law And besides the Judges in most Cases and in those also of Life in Scotland there is Counsel allowed by Law which may and ought to be heard in Particulars of Law or whatever may be justly disputable as Treason is by Statute So that of all Crimes by express Acts of Parliament it ought to have no Tryal but clear and plain according to the course and custom of the Common Law In such Cases therefore should the Iudges both in Law and Conscience sit and be instead of Counsel to the Party This they owe to every Subject though they had a special Obligation to the King Who to his own Rights and therefore to his Wrongs was an Infant in Law and so expresly declared in the Old Mirror besides other Books His Politick Capacity never but his Person ever in Nonage or supposed so in Law for it may be a Child or a Woman not able to know the Laws and therefore always had by Law a Legal Mouth assigned in Counsel of Law And so might any man else of old it seems for matter of Demurrers before Judgment or for framing of Legal Appeal by Writ of Error or some other way from any Judgment whatsoever It is also the Law of this Kingdom and of Nature that though there be no Councel assigned yet may any in a good manner move the Court to keep the Party from Injustice or the Court from Error as Stanford and the 3d. part of Institutes Cap. 2.63 and 101. And in such Cases it may be excused and not censured for rash zeal if some do or shall appear where or when it may be thought they be not called Neither can the whole Parliament of England I suppose make any Court to condemn without lawful Accusers or lawful Witnesses which by express Acts of Parliament is most especially provided in Case of Treason in King Edward the Sixth and Queen Maries Reign and Tryal of Treason was most expresly tyed to the course and custom of the Common Law Nay in full Parliament of Hen. the VIII it was declared that Attaint of Treason in or by Parliament was of no more force or strength than it was or ought to be by the Common Law or this as good and strong as that by Parliament Nor can the whole Parliament I think by the Law of Nature and right Reason make any Children Ideots or all others whatsoever to be so much as Accusers or Witnesses that I say not Indictors Tryers or Judges By express Acts of Parliament in Philip and Mary Edw. VI. Hen. VIII Hen. IV. Hen. I. for to him doth the Mirror and his Laws lead us as to a clear Crystal Fountain of our Law Process none should suffer for Treason or other Crime but by lawful Accusers lawful Witnesses before those that by Law might receive Indictments which with all Enquest are to be made by honest lawful able men Neighbours to the Fact And the Law of Nature with the Law of the Kingdom giveth any man leave to except against some for Accusers others for Witnesses and many for Tryers It being the known Law of the Land that one may challenge the Array either the principal Pannel or the Tales as well as the Polls and that the lowest Subject must be admitted if he require it to a perremtory challenge of divers it is now in most Capitals limited to 20. but in Treason it is as at Common Law it was to 3 Juries or 35 which may be challenged without any particular reason And the Law of Nature also seemeth to hear all Reasons and just exceptions against any whatsoever Nor shall I need to shew how sutable our Law is to the Law of Nature in providing that no Infant Ideot Alien Abjured Perjured or Attaint Outlaw'd or in Premunire be of any Enquest or Iury especially in Case of Life and Death And for Tryers besides all other exceptions This was thought enough that any of them had been Indictors which maketh Fortescu so much to Glory in our Law that putteth no man to Death but by the Oath of four and twenty men I should mispend my time to shew it to be the great Law of the Kingdom as well as of Nature that none may be Iudg and Parties in their own Cause which may ere-long be found perhaps to be the reason of the Three Estates and very much of our Common Law which is punctual in nothing more than in providing for a clear distinction of Accusers Witnesses Endictors Tryers and Iudges especially in Cases of Treason which upon divers motions of the Commons in Parliament have been so often Enacted and declared to be onely Tryable by the course and custom of the Common Law and no otherwise Nay in Parliament it self and Parliament Men there was and for ought I find always the like course observed For in Case of a Peer the Custom of the Kingdom is to proceed by a special Commission to one as Lord Steward and 12 others at least for a Iury of Tryors besides Accusers and Witnesses and a formal Indictment And all from Record to Record or all this is Illegal if it be onely by the House of Peers If Charge come from the House of Commons they are as Indictors being more than twelve sworn
in Parliament Which was the Receiving of Petitions As the Rolls of most times witness It being the old Mode and others accounted it somewhat against Reason that Petitions should be taken and brought into the House by those that were to debate and determine them and so might at pleasure keep them Out or too hastily might press them in Whereas they were to be filled up in course and so to be debated as they were received which was therefore entrusted to the care of known and sworn Officers of the Kingdom Although of late their work in Parliament be so strangely degenerate from that it was of old when also beside Receivers there were some appointed for Tryers of Petitions who as it seemeth were to enquire of matter of Fact expressed in the Petition that it might be cleared and rightly stated before it came to be debated in full Parliament I do not deny but these Triers of Petitions were most frequently some of the Bishops and other Barons But by this I am not convinced that the Lords had by Right and Legislative Power or were the sole Determinors of all Petitions as some would infer or that they were the sole Judges except also the Petty Jury that are Tryers of Fact shall be esteemed the sole Judges of Matters of Law And yet I shall not deny but Petitions concerning abuses or errors in Judicature were often deermined by the Lords as the great Judges but of error in the King's Bench as Judges above the King as was shewed before or from the Exchequer In Queen Ellzabeths Time for the seldom meeting or great Affairs of Parliament the Writs of Error from the King's Bench were by special Act of Parliament to be brought before the Judges of the Common Pleas and Barons of the Exchequer and by them to be determined But with these express Limitations as the Law shall require other than for Errors to be assigned or found for or concerning the Iurisdiction of the said Court of Kings Bench or for want of form in any Writ Process Verdict c. and that after all the Records and all concerning them be remanded to the King's Bench as well for execution as otherwise as shall appertain and with this express Proviso That any Party agrieved by such Iudgment in the Exchequer shall and may sue in Parliament for a further and due Examination By which I do not see such Parties agreed were absolutely tied to Petition the Lords onely although it were onely in a Case judicial Yet I deny not but in Edward the 3d. there was a Committee made of a Bishop two Earls and two Barons to hear and determine all Petitions complaining of Delays or Grievances in Courts of Justice But with great Limitations so that they must send for the Records and Judges which were to to be present and be heard and then by good advice of the Chancellor Treasurer Judges and other of the Council to make an Accord yet so that all be remanded to the Judges before whom the Cause did first depend who were then to proceed to Judgment according to the Accord of the said Committee And in Case it seemed to them to be such as might not well be determined but in full Parliament that then the said Records or Tenors should be brought by the said Commitee to the next Parliament it being the Common Law of the Kingdom and so expressed in all the old Books that all new unwonted difficult matters of consequence should still be brought and submitted to the Judgment of full Parliament so that all our Iudges did and ought to respit such Causes till the next Parliament of which there be almost innumerable Precedents in all the Rolls Nay in Richard the 2d there was a Committee of Lords and Commons appointed to hear and determine all Petitions present in that Parliament But afterwards it was adjudged and declared That such a Commission ought not to be given committing or betraying the High Power of Parliament into a few private hands as we may learn out of Henry the 4th beside other times Yet the Modi of Parliament admit that some extraordinary Cases where the Estates could not agree or the greater part of the Knights Proctors Citizens c. There by consent of the whole Parliament the Matter might be compromised to 25. chosen out of all Degrees and to fewer till at length it might come to 3. who might determine the Case except that being written it were corrected by Assent of Parliament and not otherwise And this seemeth to be the Law of Nature and right Reason That Delegates should not delegate others which was one reason why the Commons never made Pracies as the Lords did Nor might any Committee so determine but there might be Appeal from it to the Parliament Nor doth the Parliament it Self conclude so but that there may be Appeal from its self to its self even to its Iustice if it erre or at least to its mercy by some motion or Petition In one Parliament of Richard the 2d it was Enacted that no man condemned by Parliament should move for Pardon but another Parliament 10 years after did annul this Branch as unjust unreasonable and against the Law and Custom of Parliament For from this which is the highest here there still lieth Appeal from its Self to its Self For which also by the Laws and Customs of the Kingdom there were to be frequent Parliaments that so the errors or omissions of one being still human and therefore errable might be corrected and amended in another By express Statutes of Edw. the 3d. we are to have Parliaments once every year and oftner if need be They were of Old three or four times a year as may be found in all the Old Historians speaking of the great Feats in the Militia in King Alfred's Time they were to be twice a year and that at London as the Mirror affirmeth which we compared with the Laws of the Confessor And I speak also of King Edgars and Canutes Laws for the Celeberrimus Conventus ex qualibet Satrapta which the Great Iudg applieth to the Parliament Eternity it self would be a Burthen unto him that is not pleased with his Being so would Omnipotence to him that is unhappy in his acting It was therefore goodness in God to limit man as well in Doing as in Being It was also the Wisdom of our Ancestors to bound and limit out the Being Acting and continuing not onely of other Judges but also of Parliaments Yet the Old Modi of Parliament agree in this That a Parliament should not be Dissolved till all Petitions were discussed and answered and that after all there should be Proclamation made in some open place whether any had a Petition or just Address to the Parliament and if none replied then it was to be Dissolved I need not shew the Care of our Ancestors or former Parliaments for most strict observation of their own good Orders and Customs of Parliament which are such so just and reasonable that they well deserve a peculiar Discourse by themselves and suppose it not impossible to clear them more by the practice and consent of most Ages in this Kingdom which might also be useful for the Times to come And although it might be possible to find some of their old custome fit to be changed yet my hope is they will retain and observe such Rules of right Reason good Orders and Customs as may still make this an Happy Nation and that they will be mindful of their great Trust for which they are accountable And however it may be in this World yet they also must be judged at his coming who shall bring every Work into Iudgment with every secret Thing whether it be good or whether it be evil And I am not ashamed both to long and pray for his coming who is King of Kings and Lord of Lords The Prince of Salem that is Peace as well as King of Righteousness Melchizedek the Lamb upon the white Thone All the Creation groaneth and the Spirit and the Bride saith come Lord Iesus come quickly FINIS
since the late Oaths of Allegiance and Supremacy which have seemed to abate the use I say not the Force of the old Leet Oath of Grand Fealty Which was perhaps never taken or much understood by some of those that appear most zealous in crying up Allegiance For it is natural to us all to be most confident in that which we least understand They seem to have done much wrong to the King and Crown and to have made so many averse from the very Name of a King who by too much Zeal did strain our English Legiance out beyond all bounds of English Laws and then they would fly out to Forreign Laws as if the Moulds and Sphears of Kingly Power or Subjects Duty were by nature equal in all Climates and in every Kingdom Yet I know not that we need be much afraid to appeal to the Laws of any Civil State especially to those of Iudah which if some had known more they would have pressed less for our Pattern But all English Kings had English Bounds by Law and so we Swore Allegiance and no otherwise by Law It was a Pang of Zeal or strange Affection more than Reason or Religion which did make so many once at Cambridge Swear to Edward the Senior To Will what he Willed c Of which the Saxon Chronology But I hope it is not fatal to that Place or to any others in this Kingdom For I cannot learn that e're our Law did force or wish us to oblige our selves by Oath to Think Speak or Doe as any King would doe or have us for to doe if contrary to Law and right Reason Our Law dispenseth much with Womens Homage and of old they were not pressed to it for a Woman might not say I am your Man nor to a man but to her own Husband Sir I am your Woman yet she was to Swear Fealty So were the Bishops also to Swear Fealty except in Frank almoigne but the Law dispensed with a Bishops or Church-mans Homage so that he needed not to say My Lord or Liege I am your Man The Reason is because he was or should be the Man of God and might not give himself so much away to others as any other whatsoever And the reason of this may reach to all our Fealty so far as to perswade us to consider what it is we cannot nor we may not give away to any Man or Angel Was it not an hard Covenant tendred by Nahash that he would protect all those or own them for his Subjects that would put out their right Eyes and yet this had been more reasonable and Just than to have required absolute Allegiance without any Limitation or Salvo at all For this had been to have bid them pluck out their Souls or at least to uncase them from that which nature hath made the Cabinet of Souls that curious Orient Mother of Pearl Right Reason which doth make us Men that I say nothing of that which makes us Christians or Religious Men. We sinned if we wholly gave our selves unto a King without any Limitation or Restriction whatsoever For by so doing we unman our selves and give away to a Man what we owe not what we may not give to any mortal Creature whatsoever Let us discuss it then by Law and Reason what is our Legal Fealty how Made how Limited how Kept or how Dissolved Let us inquire what Duty what Allegiance is commanded by the Laws and what they did not mean they would not have us give to mortal Man Shall we behold the Sun Reflected or Refracted in a Stream of Water shall we consider the King as Cloathed in the Dress or habit of some other Lord For every Lord the meanest and the lowest is or may be to his Vassals as a little King to his Subjects Such was the Plea of Lanfranc as before at Pinenden and so it was adjudged and confirmed by that Parliament that he should be in his Demesn as was the King in his And the old Laws of Alfred Ethelstane Edgar and Canute with the good Laws of Hen. the first do as much forbid and punish Treason against Inferiour Lords as against the King himself for to them also is Homage done and Fealty Sworn by their Vassals saying My Liege I am your Man and bear you Faith of Life Member and Terrene honour saving the Faith I owe to other Lords Or thus My Lord I will bear you true Faith and do you true Service as my Duty to you is so the Statute of Edw. the Second that is according to my Fee And the Mirrour will tell us that it was an Abuse for the King himself to require it any otherwise for it did not consist in a Point but had much Latitude and several Degrees according to the several Fees And if any such Tenant were pressed on more Service or other than his Fee required or were injured he might Implead his Liege in Law For what his Duty was neither himself nor his Liege Lord might determine but the Law For a Villain who of all Vassals was most Fettered most forbidden to molest his Lord yet might be Demandant in some Real or Plaintiff in some Personal Actions where the Lord might not make plain defence as they speak Nay and Villains also did often bring Actions of Trespass And in Cases of others as of Orphans where the Villain is Executor in Trust he may implead his Lord who can not deny to answear though he do it with a Salvo lest such a Suit might make his Villain free as much as if he had made him an Obligation or a Deed of some Annuity or a Lease for Term or Infeofment with Seisin or had sued him in Law for what he might have had without a Suit For these did Enfranchise the Villain as much as being in a City or Castle without claim or Challenge for a Year and a Day or his Lords giving him by the Right Hand to the Sheriff in full County Court shewing him the open Doors and free wayes and delivering to him a Sword and a Lance or other Free Arms which are the wayes of Manumission in the Laws of King William and Hen. the first where we also find the Text so much Commented by Glanvil Bracton Britton Fleta with the Mirror and others They all agree in this that the Bond and Obligation is Mutual and that the Lords Kiss whispereth as much Respect and Defence as the Vassals Kneeling doth his Reverence Nay there is in Law so great an Obligation on the Lord and so great a Charge often in Guarranty which of old was much larger than now in Homage Ancestrell That the Lord would often refuse and delay to take his Tenants Homage So that there was a Writ made commanding him to take it and by it to Oblige himself to his Tenant whom he was to Defend and his Trespass on him in Law had a very great Aggravation because the Vassal was to be sub defensione Ligea as we found the
a Common Council in his time and before In the same Laws this William whom some call the Conquerour granteth that Cities Burroughs Castles Hundreds and Wapentakes should be so kept and watched as the Sheriffs Aldermen c. should best order for the good of the Kingdom per Commune concilium by such Common Council and a little after giveth this Reason Because they were founded for publick defence of the Kingdom and People thereof idcirco observari debent cum omni libertate integritate ratione a very happy Trinity And for Service with such Arms as were by Common Council assessed The same King called the Conqueror hath indeed such a Law That all Earls Barons Knights c. should have and keep themselves in Arms and Horses as it became and behoved them So much of this Law the King's Declaration cited for the Commission of Array But the following Words of that Law quite dash such Array for the Close of all is according to what they ought to us by their Fees and Tenure to do by Law sicut eis statuimus per commune Concilium Totius Regni Even by Parliament for the Common Council of the whole Kingdom These Laws of King William with the Additions and Emendations of the Confessor's were afterwards confirmed by King Henry the 1 st as appeareth by his Charter not only in the Exchequer but in other Places also besides that we have in Matthew Paris a Copy of which was kept in every County And the same Charter was again confirmed by King Iohn they know it may be proved and again by King Henry the 3 d. and so it came into the great Charter and by Consequence Confirmed in more than thirty Parliaments In which also there hath often been most especial Care of this touching the Militia being one of the main Causes of those Statutes entituled Confirmationes Chartarum and of those De Tallagio non concedendo except by common Consent in Parliament besides many later Statutes in King Edward the 3 d. and Henry the 4 th with other Times I deny not that in Henry the 4 th there did issue out a Commission of Array But it is as true that in the last Parliament of the same King Henry the 4 th it was again declared as the undoubted Right of this Kingdom not to be charged with ought for Defence of the Realm or Safeguard of the Seas but by their own Will and Consent in Parliament By which we may learn how to interpret all the Precedents acted by the King for his Array and by how much the more is it true that some Commissioners of Array have been confirmed by Parliament which is always needful to Confirm any such Array Which yet is not proved ever to be Paralelld in any Parliament for ought I can find For in all yet seen there is no such boundless Authority given to two or three Strangers or others to compel all Men but themselves to provide and bear Arms how and when and where it shall seem good to such Commissioners Which at once seemeth to Dissolve all Laws of Liberty Which by the Mirrour with other old Lawyers is chiefly placed in this not to be tyed to any Man but by ones own Consent In explaining of which they are Large in shewing how the Tenures of the Crown were appointed for Defence of the Kingdom and none tyed to Service but according to this Tenure which was assessed by Common Consent And if such Commissions of Array might be Legal from the King Escuage is so far from the worst or hardest Tenure as it was commonly thought that it would prove the best and easiest in all the Kingdom For if the Escuage be uncertain by Tenure None that hath read so much as Littleton can be Ignorant that by the Commom Law and Custom of the Kingdom it is not to be assessed by the King or any other but by Common assent in Parliament which hath now done much to settle this also And if Certain then is the King as really limited as the Tenant So that the King cannot command or require his Tenant but according to his Tenure expressed Not when he will For it must only be in time of War and this is not to be determined by the King but by the Courts of Iustice. When they are open as appeareth by all the Law-Books in the Case of Roger Mortimer Thomas Earl of Lancaster and divers others Nor in all times of War but only in a Voyage Royal to which Escuage is most properly tyed and this must not be determined by the King who may be a Child Sick Incomposed nor by his Marshal or Constable but by the Courts of Justice Nor in a Voyage Royal as long as the King may please But according to the Tenure usually forty Days for each Knights Fee and it hath been demurred in Law when those forty Days should begin They are Littleton's own Words and very Pregnant as if he thought that by Law the King could have no Host or Muster but by Consent of the Commons and he was as like to know our Laws as most Men living now Nor is the Tenant to serve but according to his Tenure in Gascoyn Wales Ireland Scotland to which Escuage proper but rather from the Scute or Shield and the Books have divers Cases where the King hath required Service denyed by Limits in Tenures which the Courts of Iustice especially Parliament in all Ages did determine Nor is the King to determine how the Knights shall serve him whether in Person or not For this is by Law at the Tenants Choice And if the Knight or his Proxy will not attend or stay out his Time yet cannot the King proceed against him but in a Court of Iustice and not by Marshal Law Yet the Marshal's Certificate is a Legal Evidence that the Tenants did not appear in Service but his Reasons must be heard with all just Pleas. Nor with what Arms or Horses the Tenants may serve all is expresly limited if the Tenure be certain and if not Certain it must as all Lawyers know be assessed by Parliament which did also at first establish that which now is Certain Nor would it be difficult for a mean Historian to shew how in all Ages the Militia was as well disposed and managed as it was Moulded by Common Consent which is very considerable and the rather because all that wrot for the Array did most or only run out in this That the King had the sole disposal of the Militia not attending that if this had been proved which never was that I know yet this was only but half and it may be the least half of the Question For by that strange Commission of Array the King did not only challenge the Right of Disposal of the Legal Militia already setled but also of Moulding and Making a new Militia not yet made or ever thought of that I could learn by any of our Ancestors If I were forced to enter the