Contradictio in adjecto an Imparity in a Parity Thirdly If the Husband be enobled the Wife must be so but the Wife of a Bishop is not enobled therefore the Person of her Husband is not for the Wife and the Husband are one Fourthly If a Bishop were a Peer he could in Parliament time be Tryed no where but in the House of Peers but Matter of Fact we find to be otherwise Therefore I think I may safely conclude that Bishops are no Peers But before I leave this point I must answer one thing which is said They say they hold by Baronage and therefore they are Barons as Fitz Stephen makes the Bishops in their altercation with the Temporal Lords about the pronunciation of the Sentence against the Arch-bishop saying Non sedemus hic Episcopi sed Barones Nos Barones vos Barones Pares hic sumus We sit not here in Parliament as Bishops but as Barons we are Barons and you are Barons Here we are Peers Fitz-Stephen's authority signifies nothing to me but this I know is said and believed by many therefore it must be answered to disabuse many who may think that holding by Barony creates a Baron which it doth no more than holding by Knights service makes a man a Knight or holding by Villanage makes a man a Villain which many do to this day even but here at East-Barnet and yet are good Free-men and no Villains for it works not upon the Person as Fleta saith l. 3. c. 13. the service they do is ratione tenementi non personae So the Bishops holding per Baronagium are thereby made subject to do the service of Barons and to obey the Kings Writ of Summons to attend the Parliament which makes them Lords of Parliament but affects not their person The Bishop of the Isle of Man is a Bishop as well as any of the rest first instituted by Pope Gregory the Fourth as Sir Edward Cooke saith but not holding by Baronage hath no place nor vote in Parliament We must know that this Tenure by Baronage was first created by William the First of all the Lands which held of the Crown in Capite consisting of so many Knights Fees these Lands were divided some to Lay-men some to Ecclesiastical persons And these were all bound to certain services though not all to the same and among others all to attend in Parliament whenever the King pleased to Summon them and so became Lords of Parliament This continued so till King Iohn's time when the number of the Temporal Lords growing so great and numerous that King made some alteration which certainly was setled and confirmed by Parliament but justly the time when this was done is not known the Record of it being lost The alteration was that none of the Temporal Lords should come to Parliament but such as received the Kings Writ a particular Summons for it These were called Barones Majores those who were not so summoned and so did not come to Parliament were stiled Barones Minores and were still Feodal Barons as before and held their Lands per Baronagium but were not Lords of Parliament Therefore it was not barely holding by Barony which made the person a Baron even in those times there was an act of the Kings requisite even in the Summoning of him to Parliament to make that Honour to affect and enoble the Person and so to fix it and make it hereditary in the Family which way of dignifying a Person continued till the eleventh year of Richard the Second when Iohn de Beauchamp Steward of the Houshold was first created by Patent Baron of Kiderminster since which time it hath still been practised to make them all Barons by Patent But the Bishops have still continued upon the first Institution of being by their Tenures obliged and accordingly Summoned to attend in Parliament which made them Lords of Parliament but not Peers of the Realm And now I come to his last point making them a Third Estate for which he cites the Bill presented to Richard the Third in his first Parliament where they are made so and to this I can oppose other passages in Parliament clean contrary as that 2 H. 4. where the Temporal Lords and they together are made to be one of the three Estates and other instances may be given of the same nature But let us a little consider how that Bill was framed 1 R. 3. it was first devised by certain Lords Spiritual and Temporal and other Nobles and notable Personages of the Commons a Party picked out and chosen for that purpose who presented it in the behalf and in the name of the Three Estates of this Realm of England and what was this to do to declare Edward the Fourth to have lived in adultery with Dame Elizabeth Gray whom he had married being precontracted to Dame Ellianor Bottiler daughter to the Earl of Shrewsbury and consequently all his Children Bastards Edward the Fifth a Bastard and Elizabeth his Sister a Bastard afterwards married to Henry the Seventh which entituled him and his Posterity to the Crown set an end to all the foregoing competitions and setled it as it is at this day this Bill as the Record saith was first presented and delivered to their Soveraign Lord the King that was to R. 3. whom they made so in the name and on the behalf of the said Three Estates out of Parliament and now by the said Three Estates assembled in Parliament ratified and confirmed And truly I must say this is not an authority to be bragged of for making the Bishops a Third Estate But then let us see if the Bishops sitting in the House of Lords have the necessary and essential qualifications of being a Third Estate in Parliament without which they cannot be a Third Estate there That the Clergy is one of the three Estates of the Realm and they the Principal and Chief of them no body denies And that they are Summoned to Parliament as a Third Estate of the Realm the dignified Clergy personally others of the Inferiour sort by their Procurators and Representatives is likewise confessed but not to have any part in making of Laws for the good Government of the Kingdom no not so much as in matters meerly concerning the Church but they may offer and propose and be consulted with but whatever they agree upon must come to the two Houses of Parliament and receive the stamp of their Authority before it can be presented to the King to become a Law and be binding to the People This is the work of the Convocation which meets at the same time with the Parliament and there is convened the Third Estate of the Realm Where the Bishops make the Upper House and there sit as Bishops according to their Spirituality But their Summons gives them another capacity which is to meet in the House of Lords and there Cum caeteris Praelatis Magnatibus Proceribus regni de arduis negotiis Statum regni Ecclesiae
having then made his Appeal Neither to speak my Mind freely can I see how he could be accused of Treason for Who was the Accuser The King could not because by reason of the dignity of his Person no Averment could be made against him neither could any man be tryed but by his Peers Now we hear of no Articles exhibited no Jury summoned nor no legal Proceedings in case it had been a Parliament for though Mag. Charta was not so perfect as in Henry the Third's Time yet all Historians agree 't was granted in Henry the First 's Time of the chief Points whereof Stephen Langton Arch-bishop of Canterbury brought a Copy into the Parliament in King John's Time a worthy Prelate he was though an Italian though it were the Law of the Land before and though the Council of the King might in some Misdemeanours proceed arbitrarily yet in Treason they could not as is well observed by Mr. Selden Priv. of Bar. ca. 4. pa. 10. but they were in those Cases to be tryed by their Equals Co. 2. Inst. pag. 50. tells you 't was as ancient as William the First gives you an Example of Roger Earl of Hereford so tryed in his Time But we have not yet done with Fitz-Stephens for our Author tells you that the King upon the proud Answer of Becket charges the Bishops that together with the Barons by virtue of their Allegiance they would give Judgment upon the Arch-bishop They excuse themselves The King presseth them Fitz-Steph Words are Rex responso Archiep accepto instat Episcopis praecipiens obtestans per homagium fidelitatem sibi debitam juratam ut simul cum Baronibus de Archiepiscopo sibi dictent sententiam c. This he translates That the Bishops together with the Barons would give Judgment upon the Arch-bishop This appears to be after his Appeal when the giving of Judgment or medling farther in the Business was refused beside the undue Translation of the Words which signifie no more but the desire of the King that they would tell him their Opinion touching the Arch-bishop I wish he would give me any good Authority where dictare Regi sententiam for sibi here is the same can signifie giving Judgment upon a Criminal as he translates them I know very well that dictare judicium may be taken to deliver any Sentence leisurely Linw. lib. 3. Ne Cler. vel Mon. where it is all one with dicere or suggerere sententiam Beside no such Sense can be affixed to these Words for the King's Question refers to them all in general but certainly the King did not mean they should all pronounce Sentence but only privately tell him their Thoughts yet from hence would our Author infer that this was a Parliament and that the Bishops had Power to give Judgment in Criminal Cases when he hath proved neither because in Truth this was only an Attempt of the King 's to draw them to his Party having then Intentions to send to Rome about this matter The Words of the Bishop of Chichester which he spake to Becket after his Appeal to Rome will do him as little Service for they import no more than that the Interdict laid upon him and the rest from doing any thing against him during his Absence hindred them from being present at such Proceedings against him as the King required from them 'T is not to be doubted but the King would have pressed them to deliver their Opinions whither his Appeal were Treason or not what their Judgment would have been no man knows If it had been a Parliament then summons must have been sent out for his Appearance and Proceedings by Bill of Attainder in a Legislative way not arbitrary in Cases Capital Seld. pri Bar. cap. 4. pag. 10. as before noted He closes this Head of Discourse with a pretended Confutation of the Author of the Tractate of Peerage a Book by some snarl'd at but by none answered but let us examine what they both say The Author of the Discourse of Peerage tells you pag. 14. and backs what he saith by the Authority of Justice Doddridge Sir Edward Cook and Mr. Selden that these were only certain Recapitulations of the King's Prerogative and the Peoples Right then sought to be infringed by the Pope and Clergy That these Recapitulations were avite consuetudines is confessed and that that Canon concerning Blood is as ancient in England as the Conquest our Author acknowledgeth that Gervasius Dorobernensis reckons this Article among the Laws then established from all which the Discourser of Peerage might very well argue That which was a Custom in Henry the First 's Time taken notice and allowed in Henry the Second's Time and of the beginning whereof there is no Memorial extant nor account to be given ought reasonably to be esteemed as part of the ancient Custom which is the common Law of the Kingdom All that the grand Questionist thinks fit to reply to this is that it is little to his Purpose because this Clause in Question is not a Limitation of their Power but a Priviledge and Indulgence for their Absence That this Fancy is erroneous I have before shewed from the natural Sense of that Clause as also that long before these Constitutions they were both by their own Canon Law and Custom of the Nation prohibited from being present in Cases and Consultations of Blood and that themselves admitted not only the Liberty but the Obligation by their constant Obedience given to that Law and Custom in absenting themselves in those Cases as the Author of the Letter hath asserted and shall by me be farther cleared in my Answer to his Precedents Now I do not think that this Author believeth that these Constitutions gave them a greater Liberty than they had before but if it found them bound that Statute left them so and was as all affirmative Statutes are though not introductory of a new Law yet are they corroborative of the old and in their Oath they swear Obedience to this Article as well as to the rest to wit that they would according to their Duty be present in all Proceedings in Parliament with the rest of the Barons except in Cases of Blood in which they tell us afterwards that it was not lawful for them to be present at any hand so that upon their Allowance there was more than a Liberty for there was a Law against them Beside could this Sense be allowed it would no way serve to make good his main Hypothesis that they might be present till the definitive Sentence came to be given for if the Law were obligatory as to any part why not to every part of it Our Aurhor is as little fortunate in his attempt to evade the Authority of Roger Hoveden pag. 40. who saith That 't was agreed in the Synod at Westminster that no Clergy-man should agitare Iudicium sanguints He tels you this was part of a Canon agreed at Toledo which
of settled Prerogative were not taken away from the King he not being named in the Statute By that Statute indeed if a Tenant in Capite aliened with Licence the Alience became Tenant in Capite for the Statute divided the Signiory But how it could be at the Common Law in any other Case than that of Copartners who are but as one Heir and plac'd in the same Relation to the Lord I cannot imagine I find in the Statute of Ireland this of Copartners is mentioned as the Law of England In Regno nostro Angliae talis est Lex Consuetudo quod siquis tenuerit de nobis in Capite habuerit Filias heredes ipso patre defuncto antecessores nostri habuerunt semper nos habuimus cepimus homagium de omnibus hujusmodi Filiabus singulae earum tenerent de nobis in Capite in hoc Casu Which shews that the Case of Copartners being a single Instance of the continuance of the same immediate Service notwithstanding the division of the Fee was an Exception out of a general Rule But I dare say no body that understands any thing of the Feudal Law as it has been received in this or other Nations will be of Mr. Hunt's Opinion in this particular 3dly Mr. H. would have done well to have answered the Objections against the supposed Conquest before he concluded for it and I shall take it for granted 't is a Question heartily begg'd 'till I find an Answer to these Arguments in Ius Anglorum ab antiquo 1. That the Histories of those Times prove undeniably that William the first came in upon Terms which he swore to at his Coronation and solemnly confirmed afterwards This indeed was a Conquest in the Language of those times as 't was distinguish'd from an Hereditary Right but no otherwise Thus in King Iohn's time a Man pleads that his Father had such a thing de Conquestâ—… suo viz. by his own Purchase or Acquisition 2. That Dooms-day-Book it self demonstrates that Men enjoyed their Lands under their old Titles And those Laws of St. Edw. which the Histories assure us were confirmed by Compact with William the first without particular Confirmation of their Estates 3. That we have later Records of the allowance of Titles derived from before the Norman Acquisition nay even of the whole Palatinate of Chester the Title to which was laid only in Descent even after King William's Confirmation 4. That ancient Historians and Dooms-day-Book confirm the Opinion of that Judg in Edw. III. time who informs us that William the first disseized only them that were in Arms against him and forfeited by opposing that Title which the Nation received Till Mr. Hunt has answered these Arguments amongst others in Ius Anglorum ab antiquo I hope he will not be angry that some are so critical that they will not call the first William Conqueror especially since Conquestor and Conquestus cannot now be reduced to their old peaceable Signification And therefore are by no means to be admitted unless we take the sense of the Judicious Lord Clarendon who rebukes Mr. Hobbs for insisting upon William the first his Title by Conquest as being what he himself renounced and abdicated if he ever had it If Mr. Hobbs says that unhappy Great Man Had taken the pains and known where to have been informed of the Proceedings and Transactions of William the Conqueror he would have found Cause to believe that that great King did ever dexterously endeavour from the time that he was assured that his Possession would not be disturbed to divest himself of the Title of a Conqueror and made his legal Claim to what he had got by the Will of Edward the Confessor whose Name was precious to the Nation and who was known to have a great Friendship for that Prince who had now recovered what had been his And he knew so well the ill Consequence which must attend the very imagination that the Nation had lost its Propriety that he made haste to grant them an Assurance that they should still enjoy all the Benefits and Priviledges which were due to them by their own Laws and Customs By which they should be still governed as they were during that King's whole Reign who had enough of the unquestionable Demesnes and Lands belonging to the Crown of which he was then possest without a Rival and belonging to those Great Men who had perish'd with their Posterity in the Battel with Harold to distribute to those who had born such Shares and run such Hazards in his prosperous Adventure And those Laws and Customs which were before the Conquest are the same which the Nation and Kingdom have been since governed by to this day with the Addition of those Statutes and Acts of Parliament which are the Laws of the Successive Kings with which they have gratified their Subjects in providing such new Security for them and Advantages to the Publique as upon the Experience and Observation of the Ages and Times when they were made contributed to the Honour and Glory of the King as well as Happiness of the People Many of which are but the Copies and Transcripts of ancient Land-marks making the Characters more plain and legible of what had been practised and understood in the preceding Ages and the Observations thereof are of the same Profit and Convenience to the King and People And upon Mr. Hobbs his Supposition that William the first at his Reception had dispens'd with the Subjection of the Ecclesiasticks by the Oath he took not to infringe the Liberty of the Church The Lord Clarendon has to the same purpose with the former or rather as evidence that there was no colour of a Conquest these words They who know any thing of that time know that the Oath he took was the same and without any Alteration that all the former Kings since the Crown had rested on a single Head had taken which was at his Coronation after the Bishops and the Barons had taken their Oath to be his true and faithful Subjects The Arch-bishop who crowned him presented that Oath to him which he was to take himself which he willingly did to defend the holy Church of God and the Rectors of the same to govern the universal People subject to him justly to establish equal Laws and to see them justly executed Nor was he more wary in any thing than as hath been said before that the People might imagine that he pretended any other Title to the Government than by the Confessor tho it is true that he did by degrees introduce many of the Norman Customs which were found very useful or convenient and agreeable enough if not the same with what had been formerly practised And the common Reproach of the Laws being from time to time put into French carries no weight with it For there was before that time so rude a Collection of the Laws and in Languages so Forriegn to
of charging or at least as to the Proportion but they having been at Parliament 26 E. 1. which was but eight Years before by Representatives of their own not of the County in general it shews how they had been taxt totis retroactis temporibus But besides the Charters of Counts Palatine erecting Corporations there were others granted by some who were particularly impowered to that purpose or however they might have been confirmed by the King afterwards But I shall give an Example of a Corporation raised by virtne of such a Power given by the King and confirmed afterwards Thurstinus Dei Gratiâ sciatis me dedisse concessisse Concilio Capituli Eborac Beverlac Concilio meorum Faronum meâ Cartâ confirmasse hominibus de Beverlaco omnes libertates iisdem legibus quibus ulli de Eborac habent in suâ Civitate praeterea enim non lateat vos quòd Dominus H. Rex noster concessit nobis potestatem faciendi de bonâ voluntate suâ sua Chartâ confirmavit Statuta nostra Leges nostras juxta formam Burgensium de Eborac c. H. Rex Angliae c. Sciatis me concessisse dedisse hâc Chartâ mea confirmasse Hominibus de Beverlaco liberum Burgagium secundum libertates Leges Consuetudines Burgens de Eboraco suam gildam Mercatorum cum placitis suis Feloneo cum omnibus liberis consuetudinibus libertatibus suis cum omnibus rebus sicut Thurstinus Archiepiscopus ea iis dedit c. There is another Confirmation by King Henry of the Charter by Thurstan and also William Arch-bishop of York to the same free-Borough And also another of King Richard wherein he mentions the Confirmation of the Bishop's Charters by his Grand-Father Tenentes de Villâ Beverlaci in auxiliis tam Regi quam Primogenitoribus cum Communitate praedict Comitatus semper hactenus non cum Communitate Civitatum Burgorum taxari contribuere consuevisse I need not go to prove that these came by reason of their Property in Land they being either the Kings Tenants or the Tenants of Subjects And whatever Priviledges their Interest might prevail with them to suffer to Traders amongst them 't is certain they were granted to the Free-holders 2. But then there were Corporations by Prescription where since now all the Free-men chuse it may seem more difficult to prove that they came upon the account of Property in Land Many of these received Charters in Confirmation of their Priviledges yet if they were taken away would remain good Corporations at the Common Law I may instance in London of which there is this memorable Passage in the Confessors Laws Debet etiam in London quae caput est regni legum semper Curia Domini Regis singulis septimanis die Lunae Hustingis sedere teneri And amongst other things quae huc usque consuetudines suas unâ semper inviolabilitate conservat King John's Charter provides for the ancient Liberties and free Customs of the City of London in particular and of all other Cities Burroughs Vills and Ports and some Charters of other Kings may seem more like new Grants than Confirmations of the old Priviledges But thus much is certain that those Cities Boroughs and Vills which had their Liberties and free Customs confirm'd by Magna Charta 9. H. 3. which was in the same Terms as to that part with King John's were Cities Burroughs and Vills at the Common Law And that we may frame an Idea of these we must have recourse to the old Saxon Laws By them it should seem that there was a greater equality amongst the Masters of Families than afterwards and the Law of Frank-pledges was well suited to such equality when no Man was above giving that Security to the Government upon which St. Edward's Law says Est quaedam summa maxima Securitas per quam omnes Statu firmissimo sustinentur ut unusquisque stabiliet se sub fidejussionis Securitate And as every City or Burrough was a Vill that being the Genus to both as well as an inferior Species the Law provided quod de omnibus Villis sub decimali fidejussione debebant esse universi of these Vills they that had special Priviledges Markets Fairs and the like were free Burroughs And as the Vills so the Burroughs at the Common Law were made up of a certain number of Free-men whose Property might extend far into the Counties These at first were under Tythings Afterwards as in the time of H. 1. Property falling into more Hands within the same Tract of Land or Precinct we find them answering for one another by Twentys the Headburrough was Aldermannus or Praepositus Villae or Burgi Every one of these as a Fidejussor I take it came anciently to the General Council of the Kingdom in his own Person if he pleas'd But very frequently they might intrust their Aldermannus or Headburrough to answer for them But the Franck-pledges discontinuing they might accustom themselves to electing of Members sometimes one sometimes more upon every Summons to Parliament And thereupon in every Burrough at the Common Law the Elections are by all the Free-men which answer to the Franck-pledges formerly except that 't is likely of Old all the Franck-pledges were very considerable Free-holders But still these Burroughs could not take in all the Free-holders nor yet the Vills as anciently consisting of clusters of Inhabitants But if any Man grew wealthy he loved to live by himself in some Castle or large Seat which he might build abroad in the Country Such look'd upon themselves to be too great to give Sureties for their good Behaviour as those that liv'd in Clusters did And by the time of Edw. the First Chivalers and their Children And I take it every considerable Free-holder was a Chivaler or Gentleman were exempted from the Law of Franck-pledges Doubtless every one of these as the Possessionati in Poland came to the General Councils in Person As the Lands were further improved and a free increase of Natures Stores made Men luxurious Great Men put themselves into Straits and were often obliged to sell their Inheritances and to manumit their Servants or release Servile Tenures and the Off-spring of these who themselves were Cheorls or Pesants were according to the Saxon Law which probably enough continued long after the Norman's Acquisition enobled or became Gentlemen by the Descent of five Hides of Land to the third or fourth Generation Thus together with the divisions of Lands amongst the several Children of great Proprietors and subdivisions downwards as the Families branch'd out the Numbers of Free-holders became by King Iohn's time little less than infinite tota regni Nobilitas quasi sub numero non cadebat And this sort of Nobility for the most part to be sure look'd upon themselves to be above Citizens or Burgers and scorn'd to be
such Judgements and then particularly whether among the Grantz of that Parliament of 25 E. 3. that affirmed that Judgement against Thorp there were any Bishops And I infer there was none because they tell the King that hereafter even out of Parliament if any body else offend in like manner he may take any of them that is of those Grantz that now give him this advice to joyn in condemning him and by the Law of the Land a Bishop could not joyn therefore there was no Bishop amongst them And that by the Law Bishops and all Clergy-men were prohibited appears by the Act of Parliament of the second of that King which I mentioned before confirming one to the same purpose made in Edward the First 's time that No Clerk should be a Justice of Gaol-delivery for Tryal of Felons this I think is not petere Principium to prove the true meaning of what was done at that time in the House of Lords by what the Law of the Land had already established which must regulate what the House of Lords then did and doth shew there could be no Bishops in the number of those Grantz Then for what he saith of the Commons charging Michael de la Poole before the King Prelates and Lords which was in 10 R. 2. and parallelling his crime to that of Sir William Thorp who for it was condemned to dye upon which he will infer that Michael de la Poole was charged with a Capital crime and accused of it by the Commons before the Prelates as well as before the other Lords who gave their Judgements upon it He may examine the Record and he will find that the Impeachment was only for Misdemeanors cozening the King in an exchange of Land when he was Chancellour and some other miscarriages of that nature And it is the Impeachment which is in the nature of an Indictment that governs the Tryal be the crime what it will As it is laid in the Impeachment or the Indictment it must be so found upon the Tryal at the least it can be found no higher less haply it may be A man that is Indicted for a Misdemeanour cannot be found Capitally Guilty And though by a comparison by way of aggravation it was likened to Thorp's Case Michael de la Poole made it appear there was no resemblance between them And who will take pains to read the Record of Thorp which I dare say this Trifler never did nor scarce any Record will see that the ground of that Judgement which made it Capital was that himself had submitted to such a condition when he took upon him the Office of Chief Justice the words are Si sembla a eur le Jugement sur ceo rendu resonable depuis qil se obligea mesmes per son serement a tiel penance fil feist alencontre The Judgement given upon it seemed to them to be agreeing to reason since he had bound himself by his Oath unto such a punishment if he did contrary to his Oath And I must say it would go hard with a great many if every one should be hanged that cozens the King And it is a pretty remark of his upon Sir John Lee's Case 42 E. 3. that the Record saying That he was brought before the Prelates Dukes Earls Barons and some of the Commons c. He observes that if at this Tryal any thing had been objected which had been Capital the Bishops were present at it And I say he might have made a truer observation than that which is That they might be well assured that nothing Capital was to be objected because then the Bishops would not have been present And one thing I am sure is observable which is that the Bishops that is the Prelates are here recorded to be present and to be ranked before the Dukes Earls c. We are sure if any be specified they are and still ranked in the first place What my Gentleman means in what he saith upon the Tryals 50 E. 3. I understand not they are the Cases of Richard Lyons the Lord Latimer William Ellis the Lord Nevill and John Peach all these were only charged with Misdemeanors he saith their crimes were great and hainous and reckons the loss of Forts among them which he saith was a crime Capital in Gomenitz and Weston 1 R. 2. and that I acknowledge the Bishops to have been present at those Tryals But still this learned Gentleman who brags here that he will not suffer the World to be longer amused and imposed upon by my Notions doth himself still mistake the business not well understanding the nature of the thing he treats of Otherwise he would consider that the Tryal of a Criminal person must always be pursuant to his Charge which is a point I have already spoken to therefore I shall say little here only this that the Impeachment of the Commons against those persons was only for Misdemeanors their Tryal was accordingly and the Bishops were present And for what he saith of Gomenitz and Weston was clean another Case it was for betraying those Towns which they had undertaken to keep when the force upon them was not so great However it is not material what their Crime would appear to be upon proof but what their Charge was and that was Capital Then for what he adds of the Bishops being comprehended under the general Apellation of Les Seigneurs du Parlement The Lords of Parliament in several Cases which he there cites which he beats upon over and over again in so many several places of his Pamphlet and sets up like a Man of Straw of his own making to make sport with is what I never denied my Position is That I have still observed in all Tryals of Crimes when Bishops could be present it is so expressed that they were so as in all Crimes not Capital and I do not think one Instance can be given to the contrary And my other Position which I affirm with more confidence is That if any of the other ranks of the Lords be mentioned the Bishops are so likewise or else it is a certain argument that they were not there My Gentleman is a little put to his Trumps in the Case of Gomenitz and Weston 1 R. 2. That is so plain first the Commons coming and desiring That such as had lost Towns and Castles by their own default might be punished Per agard des Seigneurs Baronage By the Judgement of the Lords and Baronage whereupon those Lords commanded Gomenitz and Weston to be brought before them and upon a long hearing condemned them both to death And the Lords are particularly named the Duke of Lancaster first and ten more Earls and Barons by name of whom Roger Lord Clifford was the last and then a general clause Et plusours autres Setgneurs Barons Bannerettes And many other Lords Barons and Bannerets Now this is so plain and exclusive of all Prelates as my Gentleman is forced to confess that it seems
a Capital crime High Treason and a Capital proceeding upon it We see the Sentence was far from Capital and could not have been such as it was if the Crime had been laid in the Accusation to be High Treason Roger de Hoveden in his relation of this business makes no mention of Treason He saith That the King calling a great Council at Northampton Taedium magnum fecit Archiepiscopo did a thing which much vexed the Arch-bishop which was that he caused his Horses to be put into the Arch bishops Inn whereupon the Arch-bishop sent the King word that he would not come to the Council till his Inn was cleared of those Horses yet upon the second day of the meeting the Arch bishop came into the Chapel where the Council sate and there desired the Kings leave that he might go over into France to visit Pope Alexander who was then there which the King denied him and said he should first answer for the injustice he had done to John the Marshal in his Court This John having complained to the King that he had had a long suit in the Arch bishops Court for some Land he held of him and could have no Iustice and that thereupon Curiam Archiepiscopi Sacramento falst ficaverat secundum consuetudinem Regni He had according to the custome of the Kingdom upon Oath charged the Court with wrong doing which I take to be a protesting against the proceeding of that Court and the Judgement there given in the nature of a Writ of Error The Arch-bishop answered to this That John had no injustice done him and that he brought into the Court a certain strange Book and would swear upon that how for want of Iustice he left my Court which the Officers that kept my Court looked upon as an injury done to me because it is the Law of the Kingdome Quod qui Curiam alterius falsificare voluerit oportet eum jurare super sacrosancta Evangelia Whoever will so charge a Court with false dealing must take his Oath upon the Holy Evangelists Notwithstanding this the King swore he would have Iustice done upon him Et Barones Curiae And the Barons of the Court gave Iudgement on him to be at the Kings mercy Which Iudgement the Arch-bishop going about to reverse Iudicium illud falsificare is the expression He was perswaded by the Barons to submit himself to the Kings mercy for a Fine of five hundred pounds Here is nothing in all this that can possibly infer any thing like Treason And it is something observable what both these Authors say of the Judgement given Gervasius saith Curiali Iudicio Episcoporum consensu condemnatus est as if the part of the Bishops in this judgement were something differing from the Act of the Court and not comprized in it Hoveden saith Barones Curiae Regis judicaverunt eum as if the Bishops had no hand in it at all Radulphus de Diceto Decanus Londinensis I suppose Dean of Pauls who lived in those times mentions this business he saith That the Arch-bishop was questioned upon John the Marshals complaint and fined 500 l. and that he was questioned likewise for moneys received by him when he was Chancellour for some Bishopricks and Abbies of which he had received the profits during their vacancies and that not finding the Bishops to be his friends he appealed from their Judgement but then the Proceres the Nobles though he appealed from their Judgement likewise yet they In eum nec confessum nec convictum sententiam intorserunt They wrested a Iudgement against him though he confessed nothing nor was at all convicted You see here is not a word of Treason laid to his charge nor nothing Capital or any thing towards it Matthew Paris tells you the same story and almost in the very same words Now let any man judge whether all those Historians concurring or single Fitz-Stephen disagreeing deserves more credit And that which hath greatest weight with me is the Argument drawn ex natura rei the crime which all agree that the Arch-bishop was charged with was his not appearing upon the Kings Summons which without a great and a very false Multiplying-Glass cannot appear to be any thing like Treason So I must conclude that since the Charge against him had nothing of Capital in it the proceedings upon it was not as against a Capital Offender not brought to Tryal as a Prisoner but came in upon a bare Summons and tarried there and returned at full liberty the Judgement neither of loss of Life nor Limb but meerly Pecuniary and as some of the Authors say compounded with for five hundred pounds I must I say conclude that this whole Case is nothing to our purpose and neither the Law nor usage of Parliament did bar the Bishops from being personally present at such a Tryal And now I come to the point of Peerage which I have so fully handled in my former Letter as I think I need not say much in this Our Asserter brings three Arguments to prove them to be Peers The first is That it is the general stile of all Parliaments from the beginning to be Generale Concilium Cleri Populi even before the coming in of the Normans which no man denies The businesses of the Church as well as of the Civil State are there determined the Writ of Summons shews it which saith That the King intending to call a Parliament Pro quibusdam arduis negotiis Nos Statum defensionem Regni Angliae Ecclesiae Anglicanae concernentibus Bishops and Temporal Lords are summoned and heretofore several others were summoned as Bannerets and sometimes other persons of Quality who likewise were not Peers and yet were called to the Parliaments as pleased the King and the Judges are so summoned at this day Super dictis negotiis tractaturi consilium suum impensuri Where the Bishops act as Bishops and what by the Law of the Land and the practice and usage of Parliaments they ought to do that they do and may do the Temporal Lords in like manner and so likewise the Judges every one acts in his Sphere but this neither gives the Bishops power to judge in Capital Causes if otherwise it be prohibited them nor doth it make them Peers no more than it did formerly the Bannerets and others for their being summoned to sit and vote in the House of Peers We had the experience of this the last Parliament a Baron pretending to a much ancienter station among the Peers by proving that his Ancestor had been summoned by one of our former Kings to sit more than once in the House of Lords yet not making it appear that that favour had been still continued to him and it being made appear on the other side that several Families in this Kingdom would have the same pretence upon the like ground it was the opinion of the House that he had no Right to it and consequently that his Ancestor was never acknowledged to
immediately But I mnst needs say this Errour of Mr. Hunt's is the most excusable of any I meet with in his Book because the great Lord Cook leads him the way For he tells us and refers to the Mirror for Proof That by the Laws and Ordinances of ancient Kings and especially of King Alfred it appeareth that the first Kings of this Realin had all the Lands of England in demesne and les Grandes Mannors Royalties they reserved to themselves and of the Remnant they for the Defence of the Realm enfeoft the Barons of the Realm with such Jurisdiction as the Court Baron now hath and instituted the Free-holders to be Judges of the Court Baron Then he tells us in his second Institutes That till the Statute of 24. E. 3. whereby 't is provided that Alienations of Lands made by Tenants which held of H. 3. or of other Kings before him to hold of themselves should stand in force saving to the King his Prerogative of the time of his Great Grand-Father his Father and his own It was doubted whether the King's Tenant might have given part of the Tenancy to hold of himself Which is in Effect the same with Mr. Hunt's Notion of all the Tenants holding of the King in Chief 1. But 't is obvious that by what the Lord Cook said of the Laws of King Alfred and others whereby he supposes Tenures were erected not only of the King but of his Grantees who had their Court Barons His Opinion was that the King's Tenant might have granted out to hold of himself for otherwise how could he have had his Court of Tenants 2. Whereas he supposes that the Laws of King Alfred shew that the Kings had all the Lands in Demesne there is but one Law of King Alfred mentioned in the Mirror and that is for the great Councils assembling at London twice a year or oftner if need be Not any thing of Tenures 3. But amongst the Establishments made per cel estate per plusors Royes by several Kings in Parliament the Mirror says Assentus fuist que les choses suivant serrent appendant aux Roys al droit de la corone Soveraigne jurisdiction la Soveraign Signory c. come Franchises treasnre trove c. Then it goes on Ceux droits retiendrent les primers Roys delremnant de la terre enfefferont les Countees Barons c. Here 't is plain that no more than the Rights aforesaid amongst which Chief Cities Chief Ports and Great Mannors were named not all the Lands were retained by the first Kings And tho they are said to have Infeoff'd others of the rest of the Land to hold of them yet that does not necessarily imply that they had all in them before Nay the Mirror shews the contrary for it says That after God pleased to abate the British Nobility who used Force rather than Law he left the Realm to the most humble and simple of all the adjacent Countries the Saxons who came to conquer it from Almain de la quel gent il y eurent iesque quarant Soveraigns que touts soy tiendrent a Companions Amongst these forty Princes being equal and independent here was no King till they came to make a Choice And so the Mirror tells us they did having felt the smart of their Competitions Then Eslierent de eux un Roy a reigner sur eux Governer le People de dieu a Maintainer Defendre les Persons les Biens en quiet per les Rules de droit This shews they did not resign their Properties to the King for they chose him to defend them yet it seems they consented to take Grants from the King by such Services as were in common agreed upon And though they were principally from him as Head of the Body Politick yet any Man that observes the Forms of the Saxon Kings Grants will not think it a vain Imagination that such as I speak of should have been with universal Consent 4. But I cannot find any Warrant to question the Tenants Power at the Common Law to Grant out to hold of himself And I am sure there is an express Resolution for it in Dyer the Words are thus in English A Man seized of a Mannor in Fee held of the King in Capite before the Statute of Quia Emptores Enfeoffs J. S. of part of the demeans in Fee without saying more the Feofee enfeoffs another to hold of the Feoffor and his Heirs by 26 s. and 8 d. Rent for all Services The Land clearly is not held in Capite And the first Mesnalty is not held of the Feoffor as of the Mannor by Knights Service The Statute of 34 E. 3. mentioned before by the Lord Cook is not in the least contrary to this For whereas before Magna Charta the King's Tenant might have alien'd as he pleas'd and Magna Charta's Provision Quod nullus liber homo det de caetero amplius alicui vel vendat alicui de terrâ suâ quà m ut de residuo terrae suae possit sufficienter fieri Domino feodi servitium ei debitum quod pertinet ad feodum illud interpretatively gave a Fine to the King when his Tenant alien'd which was not due before that great Charter was made The Statute 34. E. 3. gave the King Fines for Alienations made in the time of any King even before the making of the Charter The Lord Cook cites an Answer to a Petition in Parliament 18. E. 1. Rex non vult aliquem medium which is no more than that he would not grant his Tenant who then petition'd Licence to alien However he had not forfeited his Land if he had alien'd but the King might have entred and seized the Land in the Name of Distress for a reasonable Fine for the Trespass Which the Lord Cook takes for the better Opinion And if the Land were forfeited to be sure the indivisible Service could not have been multiplied as Mr. Hunt imagines 'T is certain that tho at the Common Law the King or any other Lord might have distrained for his Services reserved upon the Original Grant in the Lands of any inferiour Grantee as well as in the Lands of his immediate Tenants yet there was this Inconvenience that the Wardships and Marriages were not so considerable when the Lands were parcell'd out and the Lands of the immediate Tenant who only was to be in Ward or to be married by the first Grantor were of less value Therefore was that Provision by Magna Charta by the Interpretation of which the King was to have Fines upon Alienations But tho the Inconvenience of Tenants aliening to hold of themselves was taken away by the Statute of Quia emptores Terrarum 18 Edw. 1. which gave Tenants free Power to alien their Lands and provided that the Alienees should hold of the Alienors immediate Lords with an Apportionment of Services Yet Licences of Alienation being
demand for I do very well know what judgments the Commons did then not intend which were all Judgments in Capital Cases for it is most clear by all Records of Parliament and all the vestigia that remain with us of the usage and proceedings of antient Parliaments that there is not the least colour for so much as a doubt or a suspition that the Prelates or Lords Spiritual could have any part in those Judgments And we know on the other side what judgments they had their shares in which were all Judgments in such Civil Causes as came into the Parliament and in Criminal Causes that were not Capital and the Commons then could intend none but these which was enough to satisfie me that this Petition of theirs at that time was no wayes contrary or repugnant to what I maintained And by the way methinks it is worth observation the reason they give of their desire that the Bishops would make a Proctor not so much for that that their presence there was of so absolute necessity as that what was done without them was in it self null and void but to put an end to all controversies which shews the Prelates had expressed some dissatisfaction and had gotten some things which had been done in their absence to be undone and Repealed which considering their power at that time and how all the Laity was in awe of them would have a great effect upon mens minds and make them do what else they would not have done and perhaps strain a point a little to satisfie them And still it shews that notwithstanding their absence they were good and valid till the same power that had made them did Repeal them And to shew what an ascendant the Prelates had over King and Parliament and the whole Kingdom at that time see what they did but the year before 20 R. 2. They declared unto the King in open Parliament That they were sworn to the Pope and See of Rome and if any thing were in Parliament attempted in restraint of the same they would in no wise assent thereunto but would utterly withstand the same and can we then wonder if the Commons were not very loth to displease them and willing to comply with them much rather than have a controversie with them and perhaps be fain at last to undo what they had done His fourth Postulatum is upon the Protestation of Viscount Beaumont in the name of the Lords Spiritual and Temporal in the Case of William de Pole Duke of Suffolk which hath been touched upon before wherein he now saith I have left out the most material words but what they are he expresseth not nor can I imagine what he means As I have already said I have been very particular in setting down every circumstance of the whole proceeding acknowledged the actings of the Prelates in it thoroughout as far forth as the Temporal Lords and then I say how upon the Kings giving Judgment upon the Duke that Viscount in the name of the Lords Spiritual and Temporal made that Protestation That it should not be nor turn in prejudice nor derogation of them their heirs ne of their Successors in time to come I think this was sufficient to shew that I did acknowledg all that could be pretended to for the Bishops Judicature in that business and what this Assertor would have more and wherein I have failed I can not imagine only I see he is a quick-sighted Gentleman and can see further into a Milstone than another man and spy a fault which another cannot see He hath a fifth Postulatum to whichI can say nothing for I understand not what he would be at he speaks of my accurateness in making a distinction between the Matter andForm of a Law and then saith He observes three things though he expresseth but two which he saith he shall have occasion to make use of hereafter when he comes to speak of the particular Cases and I must refer my Answer to what I shall there find when I believe I shall make it appear that he makes no great use of them nor of any other Argument that he brings And now I come to the particular Cases the first is 4 E. 3. of Roger Mortimer Earl of March being then condemned for Treason Here our Asserter saith That by 28 E 3. upon his Cousin Roger of Wigmore's petitioning to have this Judgment and Attainder reversed I acknowledg it to be an Attainder If I say truth say nothing to the purpose This is gentile language and which discovers my Gentlemans ignorance as well as his rudeness his ignorance in conceiving an Attainder to be only by a Law by an Act of Parliament in which Bishops may be present and if they were not so but did withdraw it was their own voluntary act and no diminution to their Rights I have already upon his second Postulatum handled this point so fully and made I think both his errour and the truth so clear as I need not say any thing more to it here Then it is a pretty Argument he brings against my saying That the Record being Les queur Counts Barons Piers les Articles per eur eramine rebindrent c. Which Earls Barons and Peers having examined the Articles returned c. It must be inferred that the Bishops cannot be comprehended under the word Peers since the Barons are named first To this his Answer is Well but I find the contrary Peers many times put before Barons particularly in Mr. Selden's Baronage p. 12. then he cites a Record of the Judgment against John Mautravers where it is said For which the said Peers of the Land and Judges of Parliament adjudge and award c. Doth this at all contradict my quotation of the Record in Roger of Mortimers Case but that it is as I say That the general word Peers is there put after the Barons and being so cannot comprehend Bishops because in some other Records that word is put before He talks of drawing arguments illogically I am sure this is so I would put him a Case he brings his Action of Slander against one for that at such a time in such a place he had spoken ill of him and said he was a lying Knave and other words that will bear an Action and proves it by witness That man proves by other Witnesses That at another time and in another place he had spoken very well of him and said He was a fine Gentleman I ask now if he would be satisfied with this and not stand upon it that he had proved his Plaint and expects a Verdict and Judgment upon it So may I say that my Precedent stands good and proves what I alledge it for and what he saith is not to the purpose But I will go further and make it appear that even his Precedents that he alledges make all for me and against himself and though he charges me with not being so good as my word saying That I
me p. 31. taxing me with representing those constitutions very unfairly which is an expression of one engaged in a party and not of one that only seeks for truth but to shew his Reading and Learning as I am afraid that Author doth who raiseth a great deal of dust meerly to blind mens eyes and mis lead them into errours and thus he commends himself for speaking mildly and much good may his mildness do him It is apparent that the Clergy were then very high having gotten a great head by the favour they had found from the Usurper King Stephen where on both sides they served one anothers turns and Henry the Second to bring things again into order call'd that great Counsel at Clarendon where by the Advice of the Prelates and the Nobility of the Realm a recapitulation was made of part of the ancient customs and priviledges under the former King and particularly under his Grand-father Henry the First which for the future he would have to be observed in the Kingdom and thus Propter dissentiones discordias saepe immergentes inter Clerum Iusticiarios Domini Regis Magnatum Regni There were sixteen of those Articles the eleventh was that they should hold their possessions of the King in Capite sicut Barcniam and should be answerable to the King for their Services and should as Barons interesse Judiciis Curiae Regis quousque perveniatur ad diminutionem Membrorum vel ad Mortem Here we see the occasion of that meeting at Clarendon it was to remove all causes of difference between the Great Bishops and the Civil Magistrates let us now see what was most likely to displease them it 's not probable it should be for being reduced to stand upon even ground with the rest of the Nobility and great men of the Realm but if in any thing they are made less and abridg'd of the powers which the others have it stands most with reason they should be troubled at that and to be forc'd to walk out of the Judgement-hall after they had cryed Crucifige is a great lessening of their figure I think more than if they had not at all meddled in it But this Worthy Author saith I have made use of the most Imperfect Copy of Matthew Paris and saith in the Vatican Copy and several MSS. it runs thus Debent interesse Judiciis Curiae Regis cum Baronibus donec perveniatur in Iudicio ad diminutionem Membrorum vel ad Mortem Now in my opinion this makes more against the sense he would put upon these words which is that they may stay and have a hand in managing the debate upon the Evidence and agreeing upon the Sentence but must be gone when it is pronounced which as I said before I look upon as a greater scorn put upon them as Blesensis saith Quid hac simulatione perniciosius est nunquid discutere definire licitum quod non licet pronunciare For I should think that mentioning in Iudicio in the second part should not have a different constructionthan Iudiciis Curiae in the first part For there the Judicia Curiae which they may be present at is to be understood of the whole proceeding from the bringing in of the Charge against a Criminal person to the pronouncing of the Sentence And can it be rationally thought that Iudicium in the second place should be meant only of the sentence which is the principal part and which the corruption of mans nature doth chiefly lead him unto The Poet saith Qui nolunt occidere quenquam Posse volunt This power of killing and slaying Potestas Iuvandi Nocendi is a pleasing thing and we are naturally angry with what abridgeth us of it So I must conclude this point that it 's most probable the Bishops were most scandalized at this eleventh Article Secondly Let us consider how to arrive at the true meaning of that constitution which must be by comparing the passages of these times together whereby we shall see how they understood it Yoyu have already heard what Petrus Blesensis judged of those who would retain that Image of Judicature how much he blamed them and what menaces of Gods Judgements he denounced against them for the words of that Constitution were not so clear and positive that it gave not Ansam disputandi to those whose Inclinations led them to turn it into another sense and content themselves to play at small Games rather than sit out altogether So the Wisdome of that time to make it yet more plain and take away all ambiguity moved the King to call another Great Council at Westminster in the year 1175. eleven years after Ad Emendationem Anglicanae Ecclesiae ex assensu Domini Regis Primorum omnium Regni where the third Article is His qui in Sacris ordinibus constituti sunt Iudicium Sanguinis agitare non licet unde prohibemus ne aut per se membrorum truncationes faciant aut inferendas judicent Quod siquis tale fecerit concessi ordinis privetur officio loco Inhibemus etiam sub interminatione anathematis ne quis Sacerdos habeat vicecomitum aut praepositâ—… secularis officium It is not lawful for those who are in Holy Orders to act at all in Judgements of Blood wherefore we forbid them to have any thing to do with taking off mens Limbs or to judge of any such thing And if any do such a thing he shall be deprived of the office and dignity of his Orders And we also forbid under the pain of being Anathematized that no Priest shall take upon him the Office of a Sheriff or of a Secular Judge This makes it out plain what the sense of those times was that it was not lawful for them to act at all in cases of Blood and this is as much the Law of the Land as the Constitutions of Clarendon or as any other Statute Law But our Author p. 42. quarrels at this as only standing upon Roger Hoveden's authority and wishes he had produced the whole Canon entire for it Here you have two of our Ancient Historians that liv'd in these times and agree in Terminis upon the relation of what there passed But our Author is not satisfied tells us the Council of Toledo makes an c. and leaves out the prohibition which declares the meaning and extent of their Canon He will have this Prohibition and Sanction of deprivation to attend only upon the latter part that is if they do joyn in pronouncing the Sentence But where doth he find that distinction allowed it is what the Clergy have framed and imagined to themselves to give them some Power Admit we should allow them that it makes it not the more lawful for them there is still a Non licet which is subject to punishment and though the Ecclesiastical Law doth not go to that height to cut off a Member deprive him ab Officio Beneficio yet it may go less in a lower Sentence
not that the thing was true or that the Author of the Letter gave him any cause to take up that Fancy Their Affectation of Omnipotency was not to be freed from that part of the Law of the Land which was agreeable with the Laws of the Church which they were content to submit to but their Desire was to be freed from those they thought were against them to wit to do Service to the King for their Lands to answer to his Justices and Ministers to be subject to the secular Power for any crimes they should commit These were the things they stormed at and were the Ecclesiastical Bondage and the wicked Constitutions Matt. Paris and other Historians of his Time so much exclaimed against because they would have had all their Affairs transacted in their own Courts so that our Author need not have spent ten Pages to prove what no body affirms Much of the Contests between the King and Clergy arose from the Charter granted by K. Stephen Anno 1136. That all Persons and Causes ecclesiastical should appertain only to ecclesiastical Judges which Charter whatever stir they made about it according to our Author's Logick was void for Maud the Empress Daughter to Henry the First third Son to William the First and so right Heir to the Crown was then alive to whom the Bishops and People had sworn Obedience and therefore King Stephen was as much an Usurper as Hen. the Fourth This Charter was the Latis offendiculi the stumbling Stone they could not escape and the meer restoring now at Clarendon the ancient Laws and Customs confirmed to the People by Hen. 1. was what gave them the greatest Disturbance not that they affected any Omnipotency of Judicature at least in cases of Blood insomuch that our Author had no reason to pin a Sense upon the Words of the Author of the Letter to which he had no Inducement from any Words of that Author Having done with the Occasion we come now to his second Enforcement of his Opinion viz. the plain meaning of the Words First he quarrels with the copy the Author of the Letter follows taken out of Matt. Paris and Wendover who notwithstanding in Mr. Selden's Opinion have best preserved the meaning of this Constitution Seld. tit hon part 2. pa. 703. 704. Though I do not grant his Vatican copy following as he saith Gerv. Doroberniensis is better yet for once I am content to follow his copy and admit the Words in Judicio to be inserted which are left out by Matt. Paris yet I think necessarily implyed but shall never yield to his unwarrantable construction of them which in conclusion amounts to this That the Bishops were bound to be in the Kings Courts in all Judgments till it came to Sentence of loss of Life and Member and then they might go out in obedience to the Canons of the Church if they pleased to which they pretended themselves bound in Conscience to give Obedience and that for this Reason the Pope marked this Constitution with a hoc tolerandum the others with hoc improbandum I confess I think the Interpretation of these Words contrary to their natural Sense and contrary to the Opinion and Practise of former times who have always understood them to import that the Clergy ought to be present in all Tryals in Parliament except in Tryals of Blood But before I proceed to make good the true Sense and Translation of these words it will be necessary to explain the Signification of some of them First Quousque usque quo dummodo praeterquam are often times indifferently taken as signifying the same thing and are limiting restraining Particles and used as Exceptions to something which went before 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 till what time till when so far forth except when or the like Secondly Iudicium signifies properly a Tryal at Law a Case a Suit or Process and is not taken for a definitive Sentence except when it is delivered as the Opinion of the Court resulting upon a precedent Tryal had before others in which he that pronounces Sentence hath not or very rarely more than a directive Power and do's not give his own single Opinion but the Sense of others in matters debated Actiones quarum causa in jus quisque vocatur quandoque dicuntur judicia Ut in L. in bon fid 13. de Usuris L. 4. C. tit 32. L. Mora S. in bo fid Theophilus refert in S. 1. de Act. quas Athenienses 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dicebant Budaeus notat in communi Lingua Graeca per 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 generali nomine dicebant litem actionem paenam mulctam judicium to wit the whole Proceedings Iudicium est legitima disceptatio duorum aut plurium coram judice Cale Dict. Calv. Lex juridcirca finem to the same purpose By these Authorities and many more 't is plain that Judicium Judgment comprehends the whole Proceedings in any Cause and not the Sentence only Pervenio signifies to arrive at or the Accomplishment or Bounds of any thing as pervenire ad metam is to arrive at or come to the Goal Ovid speaking of the Return made by the Eccho hath these Words Verba refert aures non pervenientia nostras Words that arrived not at our Ears they came not to the Terms or Bounds designed So pervenior in the Passive Voice must signifie to be arrived at or accomplished in That Judicium in our Case must be taken in the Sense I have given I shall evince from the general Opinion of Lawyers I shall begin with Magna Charta The Words there are judicium Parium and understood of a Tryal by his Equals The Question which is asked the Prisoners after their Plea is not who shall give Sentence upon thee but how wilt thou be tryed and they that give Sentence are not those that try them in criminal Cases nay their appealing to a Tryal by them is accounted a standing Mute The next Authority shall be from the Council at Westminster in the 22. year of Hen. 2. no more than twelve years after the Assize of Clarendon and as Hoveden saith taken out of the 11. of Toledo and summoned as Gervas of Canterbury saith In hoc consilio ad emendationem Ecclesiae Anglicanae ex assensu Domini Regis primorum omnium Regni haec subscripta promulgata sunt Capitula Amongst which this is one His qui in sacris ordinibus constituti sunt judicium sanguinis agitare non licet unde prohibemus ne aut per se Membrorum truncationes faciant aut inferendas judicent That such as were in holy Orders should not agitate or meddle in Tryals of Blood as a thing unlawful for which Reason they are prohibited from cutting off any Member themselves or from giving their Opinions or Judgments that such Punishments ought to be inflicted This Synod we see was not only a Meeting of the Clergy but with them of the Primores Regni
bring in the Chancellour and Treasurer and such like Officers and that all Estates should enjoy their Liberties 15 E. 3. N. 6 7 8. Here was indeed a Matter concerning Trials of Noble-Men had under Consideration but never reduced to any Law as the Practice of subsequent Times and the late Bill of the Lords about Trials do enough manifest But doth it not appear by this Record that the Bishops were not reckoned Nobles of the Land when he finds the Chancellour and Treasurer and such like Officers attempted to be brought in at that time and so not to have had any Right before But saith our Author it after follows that they may not lose their Temporalities Lands Goods and Chattels Now none were capable to lose their Temporalities but Bishops therefore this Law must have respect to them as well as other Nobles of the Land The Answer to this is very easy that the Clergy who had then all Power did endeavour to bring in their Fellows the other great Officers who were almost all Church-men Simon Langham Arch-bishop of Canterbury was Chancellour William Molso Dean of St. Martins le Grand Receiver and Keeper of the Kings Treasure and Jewels with many others as you may find Baker p. 141. These had Temporalities to lose and such Officers the Church always hoped to have had of their own Tribe but as I said before of this Attempt came no other Effect than to shew their aspiring Thoughts And whatever Opinion the Author of the Iurisdiction of the House of Peers is of as to the Roll of 4 Edw. 3. I believe the Law at this day will not be so taken that a Chancellour being no Peer shall be so tried by reason of his Office I am sure my Lord Keeper Bridgman being no Peer never voted in the House of Lords and the present Lord Chancellour when he gives his Vote goes to his place as a Baron See Hakewell p. 114. Ancient Customs how these great Officers are placed in Parliament when they are Peers and when not and certainly if their placing be different their Trials ought to be so too Neither can it seem reasonable to any considerate Man that a Person though such an Officer should not be capacited to give his Vote as a Baron and yet by virtue of his Office should be tried by Noble-Men Therefore I must take leave to deny what he affirms that they are Peers by virtue of their Office or that they have Right to be present in Parliament in all Cases of Judicature so as to concur in Sentence with the Nobles of the Land as our Author affirms pag. 132. The King may make whom he pleases Chancellour and the Statute assigns his Place but he cannot vote there without the King's Letters Patents to that purpose as I conceive See Old Modus Hakewell p. 14. I have in the first Chapter of this Treatise spoken largely to that Point and shewed in what sense a Bishop may be called Peer of the Realm And pag. 90 and 91. have handled the matter of Proxies therefore may pass over the Case of Arch-bishop Arundel which our Author proposes pag. 128. To the Case of William de la Pool I have spoken before only shall here observe that the submitting his Cause to the King was no waver of his Peerage for the matter never came to any formal Issue consider thâ—… Case of Nicholas Segrave in 31 Edw. 1. Ridley p. 266. who being accused of many Crimes Segrave being summoned thereunto appears in full Parliament confesseth the Fact and submits to the King This was no Waver of any Legal Trial by his Peers nor any disrespect to the Lords who might otherwise have ordered the summoning a Jury to try the Fact but by the King's Pardon that labour was saved The like may be taken notice of in that famous Case between the Earl of Hereford and Essex against the Earl of Glovester and Hertford in 20 Edw. 1. Riley p. 74. Where upon a very long pleading the Case in effect proves to be but this The Earl of Hereford complains to the King of great Robberies Depredations and Murthers committed by the Earl of Glocester in his Lands in Brecknock after the King's Inhibition The King for Remedy of this appoints the Bishop of Ely William of Valence his Uncle Iohn Mettingham and Robert Hertford to hear the Complaints of the said Earl and also the Answer of the said Earl of Glocester and his Servants to the Complaint of the Earl of Hereford and to summon a Jury for the Trial of the same and also commanded Robert Tiptoft Iusticiario suo de Westwell to be there present and to summon the said Delinquents to be before the said Commissioners and that Enquiry should be made per Sacramentum tam Magnatnm quam aliorum proborum Hominum Legalium de partibus Walliae comitat Glocest. They that is the Magnates which it seems were Noble-Men excepted against the taking an Oath and said 't was unheard of and that they would do nothing sine consideratione Parium suorum The Jury give in their Verdict against Glocester the Parties all submit to the King who by the Advice of Arch-bishops Bishops Earls Barons and the rest of those who were of his Counsel declare that the Earl of Glocester had forfeited his Liberties c. The words are Videtur tam ipsi Dom. Regi quam caeteris Praelatis Magnatibus reliquis de Consilio ejus quoad Comitem Glocestriae quod Libertas sua praedicta viz. totum Regale in Terris suis praedictis de Mergannon cum pertinentiis pro se haeredibus suis foris facta est ratione delicti praedicti c. In this Record there are many things Observable First The Bishop of Ely here mentioned was not a Judg in this Case between the two Earls but joyned in Commission with others who were empowered to summon a Jury to enquire of the matter of Fact not to condemn either Party but was only in the nature of an Inquest or Grand-Jury in order to a Trial. 2. That Noble-Men Magnates such as refused to take an Oath were returned of the Jury 3. That the Verdict was given in to the Commissioners notwithstanding some of the Jury were not sworn 4. That the Jury was summoned out of several Counties viz. Glocestershire and Wales Lastly and that for which I have chiefly produced it that this Submission of both Parties to the King was no waver of their Peerage Neither doth it appear that this Award made by the King with the Consent of those Prelates Earls c. was made in Parliament tho it be inter Placita Parliamentaria but only by such private Counsellours as the King thought fit to make use of in that Affair That it was no Parliamentary Judgment is evident from these two Reasons First The putting themselves to the Reference of the King was no putting themselves upon any Trial by their Peers because that should have been done only
Barons and all the Commonalty of the Kingdom or Land c. It doth not from hence necessarily follow that the Commons were then present for the word And may be taken exegetically and expositive and not introductive of any other Persons and the word Communitas doth many times extend to the Prelates and Barons therefore it is said Si videatur Communitati Praelatorum Baronum Here lies the force of all the Cavils upon the Records mentioning others besides Tenants in Capite and Mr. Hunt insists upon the same in effect with the very same Instance I shall here chiefly apply my self to Mr. W. and I cannot but observe that what I have here cited out of his Book either contains an Assertion without any manner of Proof offered or else the latter part is used for the Proof of the other but surely 't is an odd kind of Proof that And may be used exegetically because the word Communitas may extend to several Particulars and as well to Prelates and Barons as others when particularly exprest along with it which is no more than that the other words are exegetical or expositive of Communitas not that Comâ—…as or And joyned with it can be expositive of those other words Wherefore the Assertion that And may be used exegetically stands naked by it self without any colourable Cover or Support and I would gladly see at least some Colour for the Belief that the Conjunction And was ever used as expositive or exegetical of any word or words foregoing Indeed when 't is Husband and Wife they may notionally be the same in Affections and Desires and become one Flesh as Body and Soul make one Man But I think no Man will say that the Wife is exegetical of the Husband and is no more than what was mentioned before when the Husband was named nor will any but such as believe the Mortality of the Soul and that 't is nothing else but the Temperament of the Body or its animal Spirits suppose the Soul and Body to be the same indeed if they were the Body ought to stand by it self without mention of the Soul with a distinctive And. Till some one Instance can be produced in which Mr. W. can make it out to the common reason of Mankind that And ought to be used otherwise than as introductive of something not expresly mentioned before he must give me leave to think that in the matter of our Dispute And is necessarily introductive of some other Persons But according to the Rule of making And exegetical where 't is expressed in the Instance given in the Record 48 H. 3. Si videatur Communitati Praelaturum Baronum Et must by plain Consequence be exegetical of the Praelati and so the Barons were only the Community of or all the Praelates I take it to be obvious that And of it self can never be expositive the question then will be what may or ought to be the Exposition of words which singly taken are of more general or more restrained Senses and how far they may or ought to be enlarged or restrained according to their Position or according to the nature of the words which are used along with them And in my Opinion it is contrary to the Laws of Interpretation that a word used in a general Sense and as comprehending others should explain those others particularly set down as that Communitas which here Mr. W. would have taken in a general sense as not confined to one Order should explain what is meant by Praelates Peers and Barons before particularized on the other side words of a particular explicit meaning coming before or after one of more general import shall explain and restrain the general Sense Thus Praelatorum Baronum either before or after Communitar restrain that word Communitas to the Community of the Prelates and Barons and I dare say no one Record can be shewn of the times either before or after the 49th of Hen. 3. which will warrant a contrary Exposition of such Words And indeed there has no Reason been pretended why Communitas or Populus joyned to some Orders of Men expressed should be the same with what went before but what is a manifest begging of the Question and supposing that the Commons were not present in the General Councils at the Times the Records mention and therefore that the word Communitas or Populus was superfluous and referred to what was sufficiently exprest before was comprehensive of the foregoing Particulars as Mr. Hunt will have it this illogical Petitio principij is a Leaden Vein which runs through all Doctor Brady's Writings But let us a little observe the pennings of Records which may give Light to this matter you shall there find words of a restrained Sense following one of more general to be exegetical or explanatory of the general as the Peers Earls and Barons there Earls and Barons denote what Peers are meant because there might have been Bannerets an inferiour Order of Peers Then you shall find words of a limited Sense going before to be restrictive of a word following which otherwise would have had a more general Sense as Earls and Barons the Peers there the Earls and Barons are the only Peers But where 't is Earls Barons and Peers there neither the first nor the last words can be expositive because And severs them and consequently makes them to be of different Senses wherefore And is necessarily introductive of other Persons and the word Peers which without And might have been a Genus to the several Species of Earls and Barons must needs be an Inferiour Species under a Genus not there mentioned But still Peers could not have explained the Earls and Barons but Earls and Barons would be expositive of Peers which is more comprehensive in its Signification And thus where 't is Communitas Praelatorum Baronum Communitas is the Genus to these two Species and the more particular words restrain the Communitas to them wherefore 't is the whole Body of the Prelates and Barons and none else but where it is Praelati Comites Barones Populus or Communitas there the Populus or Communitas must be inferiour to the rest particularly mentioned being there is a descent from the higher Orders still to the lower if they begin at the bottom they end with the highest at least that which is added at the last must be something distinct or different from or not paticularly exprest in what went before which is enough for my purpose I shall close this with a few more Examples out of Records In a General Council of the Kingdom held in the fifth Year of King Iohn's Reign after he had married his second Wife having been divorced from the first the new Queen was solemnly crowned unanimi consensu concordi Voluntate Archiepiscoporum Episcoporum Comitum Baronum Cleri et Populi totius Regni Magna Charta was confirmed in a General Council of the
which he thinks he demonstrates whereas Mr. W. takes the Curia to have been the only Court where the Tenants could pretend to come ex debito or Ratione Tenurae Mr. Hunt will have it that they and they only came both to the Curia and to Parliament ex debito whatever others might sometimes have been called ex Gratia But then he thinks that he has found a sure means to distinguish which was a Parliament and which was a Curia by the nature of the Summons If it was to all Tenants in Chief by Knights Service generally it made a Curia If the Great Barons had special Summons 't was a Parliament in his Judgment To convince him of his Mistakes in this and other Matters which he might have rectified if he had not undervalued the Study of English Antiquities will not be enough to him unless I likewise shew how convenient it would have been for him to have had more regard to some of those Matters of Fact within that Learning which I conceive I have made good against Dr. Brady and which Mr. Hunt has not yet vouchsafed to confute otherwise than by an ipse dixit First Wherefore I shall first shew him some Mistakes which I am concerned to represent to him And that 1. As to the matter in Issue in relation to what our Government was before the 49th of Hen. 3. 2. As to the manner of summoning the Parliament or General Council of the Kingdom and the Curia whereby he thinks he is able to distinguish the one from the other Secondly I shall shew the Erroniousness of some Suppositions which may have contributed to Mr. Hunt's belief that the Tenants in Chief were the only Members of the Parliament till the 49th Hen. 3. Or that Tenants in Capite only constituted both the Curia and the Parliament according to the fancied different Summons Thirdly I shall shew that he himself in effect grants that more than Tenants in Chief had right to come to the Great Council of the Nation in which the Nation 's Rights were involved Fourthly That even according to his own Notion of Tenure in Capite all Proprietors of Land as such had till the 49th of Hen. 3. right to come to the General Council of the Kingdom Fiftly That whereas he would set aside the Question of what the Government was till the 49th of Hen. 3. as impertinent 1. His own Notion by which he would supplant the Labours of others destroy's it self while mine maintains what he aims at 2. He puts such matter in issue for asserting the present Government as can never be maintained 3. He yields so much of the Fact against me as sets aside the whole Foundation of his Postscript And yet Admit he answers all Objections against his Postscript the Grounds which I go upon are of the most general use 1. The first of his Mistakes which I cannot but animadvert on seems to be wilfull for he renders the matter of late put in Issue as to what our Government was before the 49th of Hen. 3. to be whether the Counties in all this time had their Representatives in Parliament by the Formality of a Choice and as if our Government was according to the Concessions of them who have lately appeared in the defence of it to take it's fate upon this Issue viz. Whether our present House of Commons in the same form as it is now constituted was not in being ever after the Conquest and as if we should yeild that otherwise it were no essential part of our Government I must confess according to his Insinuation that whoever puts it upon this point betrayeth the Cause of the Government but he would do well to name the Man who has done this Disservice This I must confess I have insisted upon that Proprietors of Land as such without consideration of Tenure or collated Dignity have from the time of William the first downwards to the 49th of H. 3. enjoyed a Right of coming to the Great Councils of the Kingdom and could not be bound by any Laws to which they had not consented either in Person or by Representation yielded to sometimes before but not setled till the 49th of Hen. 3. And Mr. Petyt hath satisfied Mr. Hunt himself that the Cities and Boroughs were represented in Parliament from time beyond the account of Records or History But this I desire may be considered that admit there were no Representation of the Free-holders of the Counties settled at any time within the Reign of Hen. III or in any other King's Reignnow appearing and farther that it cannot be shewn that such Free-holders ever came to the General Councils of the Kingdom in their own personal Interest yet however if it appear that such as are now represented by the Knights of the respective Shires gave their Votes to Parliamentary Proceedings by such as they particularly appointed to that end before the 49th of Hen. 3. the present Constitution stands sufficiently established without the least Imputation of Novelty or Usurpation And this were enough for my purpose But since many Arguments induce the belief that before the 49th of Hen. 3. such ordinary Free-holders often came to the General Councils of the Kindom without special Election and Representation I should have given too great Advantage to the Underminers of Common Right if I should have undertaken to prove that the Counties from the time of the reputed Conquest downwards always had their Representatives by the formality of a Choice which Mr. Hunt I thank him would put upon me to prove His second Mistake as to the manner of summoning the Great Council and the Curia wherein he thinks that there lies an essential difference between the two Courts is nearly conjoyned to the first and if it were no mistake would overthrow my Notion for if as he holds only Tenants in Chief made the General Council of the Kingdom as well as the Curia then my belief that others besides such Tenants had right to come to the General Council would be groundless and it might be probable that the different Summons might distinguish the Courts But whereas he fancies it to have been a distinctive Mark or certain Diagnostick of a Parliament where the Summons were personal to the Bishops Earls and the Greater Barons if he had been pleased to have taken the Pains to consult the Records he would have found the Summons to have been as personal to the Wars and consequently to the Curia which besides other Occasions for its sitting was held at the place of Rendezvous to charge Escuage upon the Defaulters as 't was to the General Council which if I prove I hope 't will be yielded that the essential Difference of those two Courts could not arise from the nature of the Summons to the King's Tenants whether all were called in general or some among the rest in particular but from the Persons summoned whether only Tenants in Chief or others
yet he will not allow the Legislative Power to be in one here Every Government says he is the Representative of the People in what they are to be governed by it by their consent to it in the first erecting thereof they do trust their Governours with the Rule and Order of their Lives and Estates for the Common-Weal This seems to be his meaning of materially the same as 't is brought to shew that 't is not needful in order to the maintaining the present right of the Commons to shew That the Counties in all this time had their Representatives in Parliament by the formality of a Choice Which no Man that I know of has of late laboured to prove But if this be his meaning of materially the same then all Governments are materially the same Whereas they may be so formally as founded in the consent of the People which he presupposes But if William the First was an absolute Conqueror as he all along yeilds to Dr. Brady where was the consent of the People to his Government And how can a Government by consent now of constituent parts different from what he thinks ours was at the first Erection by the Conquest be either materially or formally the same with such a Government by Conquest But we must seek further for his meaning in materially the same He tells us the Parliament and the Curia Regis were materially the same that is as one would think there consisted of the same Members the only difference being laid to be in the nature of the Summons And yet he tells us that the ancient Burroughs sent Members to Parliament but that such were not Suitors to the Curia Regis How then were these materially the same Thus 't is plain that he has laid no manner of Foundation for our Government by King Lords and Commons or by King and three States which he takes to have been the Eâ—…entials of our Government from the Conquest but what himself undermines Whereas what I go upon prevents all manner of Pretences for unhinging of it and is the same in effect with what the Great Fortescue observed in the time of H. 6. Et in omnibus Nationum harum Regum earum temporibus regnum illud eisdem quibus jam regiter consuetudinibus continuè regulatum est quae si non optimae extitissent aliqui illorum justitiâ ratione vel affectione concitati eas mut assent Indeed this Assertion of that famous Chancellor has been much exploded by those who think that the altering of some Laws or Customs is a change of the Government And therefore say that he was greatly mistaken because many old Customs have been abolish'd Whereas he certainly meant it of the Fundamental Constitution Which as far as ever I could learn was and is that every Proprietor of Land especially should in the General Council of the Kingdom consent to the making those Laws under which they were to Live In the time of the Confessor as appears in the Transcript of his Laws there was a Folcmote or General Assembly of the People of all the Counties of England which was to be held once a Year on the Kalends of May to treat of all Matters of State and Publick Concern the very Law for such Assembly was received and confirmed in the 4th of William the First So that then by Law and of Right whatever was the Fact the People of all the Counties of England that is all the Members of the County Courts the Free-holders were to meet in a Great Council or Parliament as we now call it Admit that this is to be taken of every County respectively which were to make as many distinct Governments as Counties still the Adunatio Conciliorum or Calling together of the Counties and Hundreds as often as there was need which H. the â—…st promis'd by his Charter would come to the same thing And that all the Members of the several County Courts were Members of the Great or General Council and came accordingly if they pleased Not to mention the several Authorities by me formerly insisted on I conceive may appear by comparing two Authors of undoubted Credit and sufficient Antiquity who shew what the Great Council was in the time of Henry the second In the 16 of Henry the second that King held his Easter Court Baron at Windsor as Bromton shews us Rer tenuit Curiam suam in solemnitate Paschali Thither indeed were flock't most of the Nobility fere omnes Regni Anglae Episcopii Magnates But this being a Curia de more or an ordinary Court which no more than Tenants in Chief were obliged to take notice of nothing of universal Obligation could then be Establish'd Wherefore from hence the King went to London where as that Historian says de Coronatione Filij sui Henrici majores Regui sui Statutis magnum celebravit Concilium Gervasius who lived in that very time acquaints us particularly with the Summons and Appearance thereupon Convenerunt die Statuto ex mandato Regis ad Londoniam totius Angliae Episcopi Abbates Comites Barones Vice-comites Praepositi Aldermanni cum Fide-iussoribus suis. There assembled at London according to the King's Summons the Bishops Abbots Sheriffs the Heads of Hundreds and of Tythings with all the Frank-pledges throughout England unless the Fide-jussores Answer to the Manucaptores of which immediately If this take not in all the Free-holders of England I know not what will for he that was within no free-pledge or was no Fide-jussor was either an Out-Law or not his own Man but his that was to be answerable for him But every Master of a Family or Free-holder that was within the Protection of the Laws was one of the Frank-pledges And indeed Bronton tells us in express Terms that all the Libere sui Regni tenentes all the Free-holders of the Kingdom were there for they all swore Allegiance to the young King as well as to the Father Omnes Comites Barones liberos Regni sui tenentes devenire homines novi Regis Filij sui sibique super reliquias sanctorum Ligeantias Fidelitates jurare Fidelitate semper nihilominus suâ salvâ But if the Fidejussores mentioned in Gervasius were no more than the Manucaptores which used to answer for the Appearance of them that were chose to represent the Counties Cities and Boroughs in Parliament then here is positive proof of such Representation of the Commons as was in the times of Edw. I. Edw. II. and so downwards Yet 't is not improbable that the Pledges or Manucaptors for the Knights Citizens and Burgesses chose to parliament were introduced long after this time instead of the Fidejussors or Frank-pledges when that admirable ancient Polity about Frank-pledges became impracticable and was discontinued or broken through the general Corruption of Manners which rendred it impossible for whole Neighbourhoods to answer for
one another and through the Pride and Ambition of some who thought themselves above that Law And when the numbers of Frank-pledges had that happy Combination still been maintained would through the vast Multiplication of Proprietors have been too great to assemble together upon any Occasion requiring Counsel and serious Debates There is one Difficulty which arises upon the examining this point of Antiquity that is since we rarely meet with Authorities tho some there be which particularly describe such as Citizens and Burgesses as summoned to or present at the General Councils of the Kingdom What shall we think of them To which I am bold to say that even Citizens and Burgesses might have come under the Consideration of Free-holders inter liberos Regni tenentes or Barones Baronagium Barnagium or the like For either they were 1. Corporations by Charter Or 2. Corporations by Prescription And I think it will be probable at least that Property in Land the continuance of which in any Family made Nobility was the occasion of the Priviledges of them all And in such respect the Freemen there were numbred amongst the Nobles tho afterwards when Trade prevailed amongst them the Generality of them might be but quasi optimates and yet by Custom they obtained the name of Barones as in London Warwick the five Ports c. And probably upon the account of the first Erection But that I may not talk wholly at random I shall offer a Scheme of the ancient Polity in relation to them which at least will not be disproved For the first the Corporations by Charter they were of two kinds 1. Such as were incorporated by the King 2. Such as were incorporated by the Subject 1. Of those that were incorporated by the King there were Cities that is Boroughs which had a Bishop's See or else Boroughs only But the Episcopal See making the only difference they fall not here under any different Consideration I conceive that though to these at the time of the Incorporation the King granted several Franchises as Markets Fairs and the like Yet he gave no Right of sending Members to Parliament to them who had it not before but of them that were so incorporated some were Minores tenentes in Capite inferiour Tenants in Chief such as by King John's Charter were where not incorporated to be summoned in general to the Commune Concilium or Curia Regis Many of these for the sake of such Immunities as belonged to free Boroughs consented to be incorporated and thereupon they being one entire Body naturally fell into a Representation and answered together by their Head-boroughs or any other that they chose as one Tenant St. Albans I take it was of this kind the Burgesses of which pleaded that they held the said Vill of the King in Capite ipsi sicut caeteri Burgenses Regni ad Parliamenta Regis cum ea summoneri contigerit per duos comburgenses suos venire debeant prout totis retroactis temporibus venire consueverunt pro omnibus Servitus Regi faciendis quae quidem Servitia iidem Burgenses Antecessores sui Burgenses Villae praedictae tam tempore Domini Edwardi nuper Regis Angliae Patris Regis Progenitorum quam tempore Regis nunc semper ante instans Parliamentum ut pâ—…ittatur 〈◊〉 Nomina quorum Burgonsium sic praedictâ Villâ ad Parliamenta Regis veâ—…entium in rotulis Cancellariae semper irrotulata fuerunt I before had occasion to examine Dr. Brady's Interpretation of the Answer to the â—…ea here the Plea it self comes to be considered And whereas he renders pâ—…o oâ—…us Servitus in lieu of all Services I conceive the Sense to be no more than thus That they held of the King in Chief and that as other Burgesses of the Kingdom they were to be represented at the King's Parliaments when they happened to be summoned by two of their fellow-Burgesses as ever since they were incorporated they had used to come for the performing of any of their Services And that they had not forfeited their Charter nor ought their Corporation to be dissolved for that they had duly performed all their Services And for proof that to Parliament especially they had all along come by Representation they appeal to the Rolls of Chancery Certainly no Man before the Doctor thought that the coming to Parliament excused any Rent or other Service which was incumbent upon them But thus much is obvious from this that here were Minores Barones Tenants in Chief whose Tenure must have been created by Charter who were fallen into a Representation And that this was upon the account of Property in Land which occasioned their Services and their being united as one Tenant But besides these there were Tenants of Honours or Manors in the King's Hands or in the Subjects which were incorporated by the King's Charter and sent their Representatives to Parliament I shall instance only in a Corporation holding of a Subject but incorporated by the King's Charter King John by his Charter to William Brewer who in all likelihood was Lord of the Mannor of Brugwater or Bridgwater grants that Brugwater should be a free Burrough and that it should have Markets and Fairs And 26 of Edward the first when the first Roll of Burgesses begins we find Burgesses for Bridgwater entred amongst the rest And 't is observable that there is not to be found any Charter giving them the priviledg of sending Burgesses nor could such a Priviledg arise by Implication Wherefore they must necessarily have come upon the account of their Property in Land with no other Alteration than that their divided Interests were all conjoyn'd in one 2. But besides these there were some incorporated by Subjects Of those who incorporated them some had Regalia themselves as the Counts Palatine of Chester One of which Leofrick Brother to the Confessor in his life-life-time incorporated Coventry under the Prior and Monks of Chester Whereupon the Burghers of Coventry were represented in the General Councils of the Kingdom as one entire Body We find that it sent Burgesses to Parliament 26 Edw. 1. and from its first Corporation must needs have done so according to its Plea which was allowed 34 Edw. 1. For it pleads that it was neither Civitas Burgus nor Dominicum Regis That therefore it ought not to be taxt or taliated as such but was to be charged only when the whole County was charged or in the like Proportion and they pray that the Taxors and Collectors may not be suffered to distrain amongst them otherwise than it had been totis retroactis temporibus in all times past since they became one Body that is that ever since they were a Body they us'd not to be taxt as the King's Demesnes whether Cities Boroughs or Manors which might be out of Parliament and even when there was a Parliament they bore the heaviest Burthens But as the County as to the way
within Frank-pledges and be bound with Sureties to their good Behaviour Which Dr. Brady tells us and rightly enough if he speak of the Time of Edw. 1. was only for the ordinary Free-men or the Bulk and multitude of the Free-men or small Free-holders All that look'd upon themselves as Gentlemen at the least were without any manner of Representation and wherever they were interested appeared in Person and sometimes in very disorderly Multitudes Some sensible of the inconvenience of it and expence and trouble to themselves of their free Choice became incorporated by Charter as aforesaid being either the Kings Tenants or some inferiour Lords or it may be the Tenants of several Mannors joining together and their coming to Parliament or as the Burrough of St. Alban's pleads pro omnibus serviciis faciendis was a consequent upon their Incorporation Free-hold I take it was the occasion of all this though afterwards Traders might be admitted to Priviledges amongst them The Traders and Free-holders within Cities or Boroughs sent their Delegates whilst here as in Poland the Possessionati Men living upon their Lands in the Counties came to the General Councils in their own Persons Thus it was here till the 49th of H. the 3d as I think the Authorities formerly insisted on by Mr. Petyt in behalf of the Citizens and Burgesses and by me for the Possessionati in the Counties sufficiently Warrant Wherefore the Alteration which was made in the Government in the 49th of H. the 3d. if any were then made was the calling out some of these Proprietors Earones Comitatus to come in their own Persons and putting a Representation upon the rest which was most likely to be done by the Perswasion and Influence of the King though with the consent of the People And therefore I must say 't is most probable that what is by Mr. Cambden's Author transmitted to us as done a little before the Death of H. the 3d must have been some years af-the 49th and the Kings Victory at Evesham over the Great Barons whom he curb'd by the Less the Commons Which prevail'd on his side by whose Assistance he depriv'd many great Men of a judicial Power in Parliament and of the right to special Summons while the Commons had their Power preserved in their Representatives they were all interested in the Legislature as before But all the Great Barons had not their former Interest in the Supream Judicature and yet this variation in respect of the Great Lords was no change of the outward frame of the Government but only a diminution of the Priviledges of some particular Men. And though the bringing in Representations where no Representations were before altered the Frame and Appearance of the Government yet it did not the Constitution and fundamental Interest of Proprietors of Land with whom the Ballance of Power has ever been in this Nation the Foundation is and was the same like the same Soul animating the same Body when 't is greater and when by reason of Tumults and Seditions as we may call them in the Spirits 't is wasted from its Corpulency and thereby often brought to a more assured state of Health than ever before This more healthful State in a contracted Body of Proprietors of Land I yeild to have been setled in the Reign of H. the 3d. It happening that there were Writs to that Purpose just in the 49th 't is concluded that then it was first begun Whereas by the same Argument 't was in the 38th when two for every County were summoned to Parliament Vice omnium singulorum But if I should confine my self to Authorities within the time of the first Edward immediate Successor to H. the 3d I doubt not but there were enough to satisfy any unbyass'd Reader that the Commons such as are now represented by Knights Citizens and Burgesses had before the 49th of H. the 3d Shares or Votes in making of Laws for the Government of the Kingdom and had communication in Affairs of State otherwise then as represented by the Tenants in Capite notwithstanding Dr. Brady's Affirmation to the contrary In the 24th of E. 1. the Earls Barons Knights and others of the Kingdom which others was then and afterwards meant of the Commons of the Cities and Boroughs gave a Subsidy Sicut aliàs nobis progenitoribus nostris Regibus Angliae And sure Hen. the 3d could be but one Progenitor so that the Farones Minores the Free-holders of Land which ever since the 49th or some other Year of Hen. the 3ds Reign were represented by the Knights of the Counties who were not in those times to be sure confined to Knights by Tenure or Dubbing And the Commons of Cities and Burroughs at the least from within the Reign of King John to whom Hen. the 3d. immediately succeeded were Members of Parliament being Parties to Grants there made And omitting the Prescription of the Burrough of St. Albanes from within the time of the Progenitors of Edward the first to use but one Authority not mentioned in either of my Tracts In the 28 of E. 1. the Knights Citizens and Burgesses had been summoned to the Parliament at Westminster Nobiscum de diversis negotiis nos Populum Regni specialiter tangentibus tractatur and Writs issued out for their reasonable Expences prout aliis consuevit in casu consimili 1. Upon which 't is observable that de quibusdam arduis which is now in use in the Writs of Summons ought not to be restrained to a few great matters but extends to divers according to the different natures of matters brought before or appearing to them 2. That the Commons had not only an Assent without power of dissenting but they were to treat as well as the Peers 3. That their coming was not a new thing then as if begun but 35 Years ago in the 49th of H. 3. but it was of Custom and legal Prescription so far that it laid an Obligation upon the Subject to contribute to these Expences and surely an Usage of 35 Years would not be a sufficient Charge in Law 4. That though there is no Evidence that Representations for Counties were settled before the 49th of Hen. 3. Yet the Freeholders were often at Parliament by Representation and thence there was ground in reason to occasion the Custom that they should bear the Charges of them that they chose Nay if there were no actual Choice there was tacit Consent from which Custom may arise that those who were willing and at leisure to be at Council should answer for and have Contributions from the rest But let both Dr. Brady and Mr. Hunt consider the Precedents above mentioned of Coventry and Bridgwater which did not hold of the King and yet sent Burgesses to Parliament and let them give a categorical Answer whether they believe that the Majores Barones Regni and omnes alij holding in Capite mentioned in King John's Charter made