since the late Oaths of Allegiance and Supremacy which have seemed to abate the use I say not the Force of the old Leet Oath of Grand Fealty Which was perhaps never taken or much understood by some of those that appear most zealous in crying up Allegiance For it is natural to us all to be most confident in that which we least understand They seem to have done much wrong to the King and Crown and to have made so many averse from the very Name of a King who by too much Zeal did strain our English Legiance out beyond all bounds of English Laws and then they would fly out to Forreign Laws as if the Moulds and Sphears of Kingly Power or Subjects Duty were by nature equal in all Climates and in every Kingdom Yet I know not that we need be much afraid to appeal to the Laws of any Civil State especially to those of Iudah which if some had known more they would have pressed less for our Pattern But all English Kings had English Bounds by Law and so we Swore Allegiance and no otherwise by Law It was a Pang of Zeal or strange Affection more than Reason or Religion which did make so many once at Cambridge Swear to Edward the Senior To Will what he Willed c Of which the Saxon Chronology But I hope it is not fatal to that Place or to any others in this Kingdom For I cannot learn that e're our Law did force or wish us to oblige our selves by Oath to Think Speak or Doe as any King would doe or have us for to doe if contrary to Law and right Reason Our Law dispenseth much with Womens Homage and of old they were not pressed to it for a Woman might not say I am your Man nor to a man but to her own Husband Sir I am your Woman yet she was to Swear Fealty So were the Bishops also to Swear Fealty except in Frank almoigne but the Law dispensed with a Bishops or Church-mans Homage so that he needed not to say My Lord or Liege I am your Man The Reason is because he was or should be the Man of God and might not give himself so much away to others as any other whatsoever And the reason of this may reach to all our Fealty so far as to perswade us to consider what it is we cannot nor we may not give away to any Man or Angel Was it not an hard Covenant tendred by Nahash that he would protect all those or own them for his Subjects that would put out their right Eyes and yet this had been more reasonable and Just than to have required absolute Allegiance without any Limitation or Salvo at all For this had been to have bid them pluck out their Souls or at least to uncase them from that which nature hath made the Cabinet of Souls that curious Orient Mother of Pearl Right Reason which doth make us Men that I say nothing of that which makes us Christians or Religious Men. We sinned if we wholly gave our selves unto a King without any Limitation or Restriction whatsoever For by so doing we unman our selves and give away to a Man what we owe not what we may not give to any mortal Creature whatsoever Let us discuss it then by Law and Reason what is our Legal Fealty how Made how Limited how Kept or how Dissolved Let us inquire what Duty what Allegiance is commanded by the Laws and what they did not mean they would not have us give to mortal Man Shall we behold the Sun Reflected or Refracted in a Stream of Water shall we consider the King as Cloathed in the Dress or habit of some other Lord For every Lord the meanest and the lowest is or may be to his Vassals as a little King to his Subjects Such was the Plea of Lanfranc as before at Pinenden and so it was adjudged and confirmed by that Parliament that he should be in his Demesn as was the King in his And the old Laws of Alfred Ethelstane Edgar and Canute with the good Laws of Hen. the first do as much forbid and punish Treason against Inferiour Lords as against the King himself for to them also is Homage done and Fealty Sworn by their Vassals saying My Liege I am your Man and bear you Faith of Life Member and Terrene honour saving the Faith I owe to other Lords Or thus My Lord I will bear you true Faith and do you true Service as my Duty to you is so the Statute of Edw. the Second that is according to my Fee And the Mirrour will tell us that it was an Abuse for the King himself to require it any otherwise for it did not consist in a Point but had much Latitude and several Degrees according to the several Fees And if any such Tenant were pressed on more Service or other than his Fee required or were injured he might Implead his Liege in Law For what his Duty was neither himself nor his Liege Lord might determine but the Law For a Villain who of all Vassals was most Fettered most forbidden to molest his Lord yet might be Demandant in some Real or Plaintiff in some Personal Actions where the Lord might not make plain defence as they speak Nay and Villains also did often bring Actions of Trespass And in Cases of others as of Orphans where the Villain is Executor in Trust he may implead his Lord who can not deny to answear though he do it with a Salvo lest such a Suit might make his Villain free as much as if he had made him an Obligation or a Deed of some Annuity or a Lease for Term or Infeofment with Seisin or had sued him in Law for what he might have had without a Suit For these did Enfranchise the Villain as much as being in a City or Castle without claim or Challenge for a Year and a Day or his Lords giving him by the Right Hand to the Sheriff in full County Court shewing him the open Doors and free wayes and delivering to him a Sword and a Lance or other Free Arms which are the wayes of Manumission in the Laws of King William and Hen. the first where we also find the Text so much Commented by Glanvil Bracton Britton Fleta with the Mirror and others They all agree in this that the Bond and Obligation is Mutual and that the Lords Kiss whispereth as much Respect and Defence as the Vassals Kneeling doth his Reverence Nay there is in Law so great an Obligation on the Lord and so great a Charge often in Guarranty which of old was much larger than now in Homage Ancestrell That the Lord would often refuse and delay to take his Tenants Homage So that there was a Writ made commanding him to take it and by it to Oblige himself to his Tenant whom he was to Defend and his Trespass on him in Law had a very great Aggravation because the Vassal was to be sub defensione Ligea as we found the
Parliamenti sedebunt nullus stabit sed quando loquitur ut omnes audiantur à Paribus And again Nullus solus potest nec debet recedere à Parliamento sine Licentia Regis omnium Parium Parliamenti hoc in pleno Parliamento Ità quod inde fiat mentio in Rotulis Parliamenti It may be possible That Bracton and Fleta with others may use the Phrase Pares in such a sence when they say That the King or his Commissioners should not judge and determine of Treason but Pares Which may be added to the 25 th of Edw. 3. reserving Treason to Parliament where of Old it seemeth only determinable so that The Mirror would not have it Endicted but by Accusation and in full Parliament as in King Edmund's Time c. Cap. 2. Sect. 11. and in Edw. the 3 d it was enacted That Offences of Peers and great Officers and those who sued against the Laws should be tryed in Parliament And although now the Phrase be given to all the Lords of Parliament yet it was most or only proper to the Earls whom by Law and custom the King styleth Consanguineos and he might style them his Peers or Companions as in Latine Comites So Bracton Comites dicuntur quasi Socii Regis qui habet Socium habet Magistrum and in another place A Societate Reges enim tales sibi Associant ad consulendum regendum Populum Dei and the like is in Fleta Comites à Comitiva dicuntur qui cum viderint Regem sine Freno Frenum sibi apponere tenentur c. which is also in Bracton The Mirror is yet clearer although the King had no Equals yet because himself or his Commissars might not be Judge it was provided by Law that he should have Companions to hear and determine all his Torts c Aux Parliaments and those Companions were called Countees Earls from the Latine Comites So also Sarisberiensis cited before in Hen. 2. Comites à Societatis participatione dici quisquis ignorat ignarus est literarum c. some will have them Comites Socii in Fisca because of old some Earls had a third part of profits accrewing by Pleas and Forfeitures in their Counties as the Laws of the Confessor and Mr. Selden in his Comes but he will also grant their name à Comitiva potestate rather than from such Communion of profits That the old Sheriffs also who were Vice-Comites did come to Parliament appeareth in the Ancient Writs and Histories and yet the Barons seem to be the Kingdoms Iudges and the present Earls may seem to sit in Parliament but onely as Barons who are now all Peers and Lords and Parliament But although the Lords were the great Iudges of the Kingdom and of all Members thereof yet it is well known that in full Parliament as old as Edw. 3. they did not only acknowledge but protest that they were not to Iudge the Commons in Cases of Treason and Felony being not their Peers How it was in Rich. the Second may be seen at large in the Rolls and Records now printed in Edward the Second the Commons proceeded by the Judgment of the Lords for which also the Fructus temporum cited before may be added to all in the Road. Appeals and Writs of Error were from the King to the Lords in Ecclesiasticals that touched the King they were to the Spiritual Prelates Abbots and Priors of the Upper House by Act of Parliament in 24 Hen. 8. till which it may be Temporal Lords had also Cognizance of such as well as Temporals And Writs of Error in the Parliament were Judged by the Lords for they came from the Kings Court his Bench or his Exchequer and if Errors had been in the Common Pleas or below it they should not be brought into Parliament but to the Kings-Bench and from the Kings-Bench as from the King not otherwise they came to the Lords and although there was a formal Petition for removing the Record from the King it was but of Course and the King could not deny it Which we found granted by all the old Lawyers and Historians as I shewed before and by the grand Master and Patron of Law King Edw. 1. in Britton because none may Judge in his own Cause Therefore in Causes where our self shall be Party we do consent que N. Court soit judg Sicome Counts Barons in Temps de Parliament In the Laws of Hen. 1. one of the Chapters beginneth thus Iudices sunt Barones Comitatus qui liberas in eis terras habent for in those times Barons were by Tenure only not by Patent that I know till Beauchamp of Holt in Rich. 2. nor by Writ that I can find till the Barons Wars but K. Johns Charter is to Summon Comites Barones Regni majores sigillatim per literas N. But all that hold in Capitae by general Summons forty days before the Parliament and that Negotium procedat ad diem assignatum secundum consilium eorum qui presentes fuerint quamvis non omnes submoniti venerint and the Summons of Delinquents or Suitors in Parliament was to appear and abide the Judgment of the Court not of the King but of his Court for the King is Father and not Judge of his People in his proper Person as was shewed before and all the Books agree that he must Commit his Jurisdiction unto Judges in the Courts of Justice and when he might assume great Offices into his own Hands by Parliament in Edw. the third all Judges were expresly excepted and the Judges Oaths and several Acts of Parliament require them to proceed according to the Law notwithstanding the Kings Command or Seal against it and the Register affordeth a Writ to Supersede or Revoke any such Seal from the King himself to any of the Judges And the Lord Chief Justices as the Lord Chancellor and Treasurer were Chosen by the Kingdom as we found before in the time of Hen. 3. how much more then should the Lords of Parliament be made by Parliament for else they be the Kings Commissioners So the Roman saith our German Fathers chose their Lords in Common Council to be Judges in iisdem Conciliis Eliguntur Principes qui Jura reddunt De Minoribus consultant Principes de Majoribus Omnes And Caesar also observeth that their Princes or Lords were their great Judges sed Principes Regionem atque Pagorum inter suos jus dicunt Controversiasque minuunt Yet Tacitus will also tell us that with those Princes they did joyn Commons Centeni ex Plebe Comites which were perhaps the Fathers of our County Hundreds And in K. Williams Edition of the Confessor's Laws when he inclined so much to them of Norwey Universi Compatriotae Regni qui Leges Edixerant came and besought him not to change their Old Laws and Customs of their Ancestors because they could not judge from Laws they understood not quia durum valde foret sibi suscipere
rough East-Wind Chap. 27 28. But there is a more inward Proportion yet to be found in rational Agents when their Activity is proportional to their Being and to their Knowing and when ever these three are preserved Equal or Proportional there is true Liberty So it seemeth to be in God may be so darkly shadow out the Blessed Trinity His Being Knowing and Activity are Infinite and therfore Proportional to each other and absolutely Free altho Necessary By his Knowing he freely comprehendeth and by his Acting freely diffuseth his own Being So that all the Creatures seem as several Rayes or Ideas rightly called Species acted that is diffused through infinite Knowledg from or rather within Infinite Being which the Iews call the Place in which we Live and Move and have our Being Creation was of somewhat not appearing before so both Reason and the Scripture teach But how it was or could be from meer Nothing would be more considered and it may be the Hebrew Word may signify to Cleer Manifest or Reveal somewhat hidden before rather than to make of Nothing Something De novo which may seem impossible if there ever was Being Infinite as much real Entity as there could be altho not so visible in all its Moods as it was since the Revelation which we call Creation All the Creatures have some Image of the Creator's Being and Activity it may be also some kind of Knowing suitable to both for which there is much to be said and perhaps more then is yet written by any de sensu Rerum where we might also find Causes of Antipathies and such as are now called occult Qualities And wherever Activity for this is most to Sence and by this we used to measure Freedom tho it should it be in Knowing as much as in Doing is preserved equal or proportional to Being there and there only seemeth to be true Liberty which may most appear in the Actings of those Beings which are most knowing Shew me then the Sphear of Man's Being and you may quickly find the Measure of his Freedom his being is by all agreed to be Rational and Reason therefore is the proper Measure of his Liberty For he is then Free when his Activity is preserved equal or proportional to his Being this is Rational and so must that and Man is then and then only Free when he can Act what he should Act according to right Reason This is the Law of his Nature which is Rational and Reason is his Royal Collar of S. S. S. or a Chain of Pretious Pearls which Nature hath put about his Neck and Arms as a Badg of Honour and most happy Freedom This Digression would be scarce excusable but that our Law doth so adore right Reason that is a Maxim What is contrary to Reason is contrary to Law Knights Service with Ward and Marriage draweth Relief but Reasonable by common Law before the Charter and the Statutes do ascertain Aydes which were before to be Reasonable Guardian in Chivalry need not account but Guardian in Socage Prochein Amy or Tutor Aliene be liable to a reasonable Account For the old Writ requires Compotum rationabilem But an Action of Account will not lye against an Executor to such in Socage tho this hath been pressed in Parliament because it was not reasonable but in case of the King it was so adjudged Tenant at Will ejected by his Lord shall by Common Law have reasonable Time to remove his Family and Goods with free Egress and Regress during the said Fine reasonable Tenant by Copy with Fine uncertain is not wholly at his Lord's Pleasure for by Common Law he must only make a Fine reasonable Housboot Hedgboot Ploughboot all Estovers both for Tenants and Prisoners must be reasonable and so must all Partitions between Parceners and upon Elegit c. Which are therefore not left to the Sole Pleasure of a Sheriff or of any other but in a sworn Enquest as we may find in the Writ de Rationabili Partitione In divers Mannors there be many petty Customs which can hardly be brought into publick View but for those and for all the Law hath a short Text Que nest pas Encountre reason poit bion estre admitte allowe And the great Commentator addeth Lex est summa Ratio If you ask him who must determin of Reason or what is reasonable his Answer would be that if any man find himself aggrieved by his Lord or his Fellow Tenants the Law supposeth the Iudges Breast to be a sufficient Closet or if you will a Castle for right Reason I remember one Case and there may be divers in which the Law leaveth private Men even in their own Causes to be Iudges of Reason or what is reasonable It is a case of Escuage The great Charter dispenseth with personal Service in some Cases where it is not reasonable a Man should serve in Person and the Reason of this runneth so through all Escuage that if any Man will send another in his Room the Law dispenseth with it supposing he seth reason not to attend in Person Nor may he by Law be compelled in such Case against his own Reason Most if not all other Cases in that Tenure are by Common Law left to the immediate Reason of the Parliament which may be worth a little Pause as that which may somewhat clear the grand Question of the MILITIA It is true that by the Common Law and by the Laws of the Confessor cited by some to assert the Commission of Array Men ought indeed to have Arms and them to keep in Readiness for Defence of the King and Kingdom But it is also true that this besides other Passages is strangely cited and applyed for Defence of that Commission of Array For altho the Close of the Sentence be as they say Iuxta praeceptum Domini Regis c. Yet the same Sentence had they cited it whole seemeth to be much more against the Array than for it For the Arms required there must be Assessed by Common Consent and that also limited in that very Sentence to the Proportion of ever Man's Estate and Fee for the Defence of the King and Kingdom and for the Service due to the Lords Iuxta praeceptum Domini Regis and these Words in this place do refer to the immediate precedent Words Servitium Dominorum which by the Custom of the Kingdom was so Limited that in all Homage or Fealty there used to be added this Salvo Salve lay foy que jeo Doi à Seignior le Roy. And lest King Edward's Laws should not be plain enough secundùm quod eis statutum est adjudicatum quod debent King William the first by Advice of his great Council explained them thus that nothing should be exacted or taken but Liberum Servitium free Service Prout statutum est per commune concilium totius regni as it was established by the Common Council of the whole Kingdom which is also a clear Proof for such
with the Statutes of King William after the Saxon Laws I must but run and glance His Charter acknowledgeth his Crown to the Mercy of God and the Common Councel Communi Concilio assensu Baronum Regni Angliae It confirmeth King Edwards Laws with all those Emendations which King William added for the profit of the Kingdom It forbiddeth all Levies nay the Monetagium Commune but what was agreed and setled in King Edwards Reign And the Test of that Charter is by Arch-Bishops Bishops Barons Comitatibus Vice-Comitatibus optimatibus totius Regni Angliae apud Westmonasterienses quando Coronatus fui This was copied out into every County and kept in every Abby So much also we find in Matthew Paris Of his Charter to London I may touch in another place This I must not omit in his Laws Sive agenda proecipiat levia permittat hortatur maxima vitanda prohibeat yet still the Laws must be Manifesta Iusta Honesta Possibilis a kind of sacred Tetragram It is the 4th Chapter And the next is the Basis or Foundation of our Law process and of all Judicials In all Causes Accusers Parties or Defenders Witnesses and Iudges be and must be distinct Nec perigrina sint judicia vel a non suo judice vel loco vel Tempore celebrata nec inâ—e dubia vel absente accusato dicta sit sententia c. Nihil fiat absque Accusatore nam Deus Dominus Noster Iesus Christus Iudam furem esse sciebat sed quia non accusatus ideo non abreptus Testes Legitimi sint presentes absque ulla imfamia vel suspicione vel manifesta Macula Recte Sacerdotes accusare non possunt Laicos Nec oportet quemquam Iudicari vel dampnari priusquam Legitimos Accusatores habeat presentes Locumque Defendendi accipiat ad abluenda crimina c. And again Pulsatus ante suum judicem si voluerit causam suam dicat non ante suum Iudicem pulsatus si voluerit taceat Si quis Iudices suspectos habeat advocet aut contradicat Appellantem vitiatam causam appellationis Remedio sublevantem non debet afflictio vel detentionis injuriare Custodia Unusquisque per PARES suos Iudicandus est ejusdem Provinciae Quicquid adversus Adsentes vel non a suis judicibus penitus evacuetur Chap. the 5th and the 31th Iuramentum debet habere Comites Voritatem Iustitiam Iudicium si ista defecerint non juramentum sed perjurium est Qui per lapidem falsum Iurat perjurus est Deus ista accipit sicut ille cui juratur accipit Iuramenta filii filiae nesciente Patre vota Monachi nesciente Abbate juramenta pueri irrito sunt Are These the Laws of England or of Nature rather These we owe to Beauclerck which he owed much to Cambridge See Malms of Plato's Kings Touching the Militia beside that in General confirming King Edwards and King Williams Emendations There are some particular as of Tenants by Knights Service to be freed from Gilds c. That so they might be more ready for the Defence of the Kingdom and in it the Kings Service This agreeth with the old Writ de essend Quiet de Tallagio Which the Tenant in Chivalry might require of Right And Tenants in Dower or Widows had the like Priviledge of which the Old Register natura brevium That also of Edgar or Canute for Cowards in Land or Sea-fight is renued with that of Boocland as before Much also of Helfeng Releifs are agreed and setled For Earls and the Kings Thaynes with others called Meane Thaynes But in some Chapters Thaynes are equal to Barons And all Tenants En chief at Clarendon were stiled Barons and Relief is Cosin German to the Saxon Heriot Being for the Heir or Militia whence Heretoche in King Edwards Laws But the Dutch Here is also Dominus as Senior in so many Nations since the time of Charles the Great And some will have the Saxon Heregeat to be the Her 's Geat or Beast of the Lord or Here which of old was paid before or rather than the Mortuary And from this Here som would derive Haeres So that all Heirs should be Her 's or Lords as Homines were Yeomen You Men or Young Men but Homines in Law as with us Men are Servi Such they say were Yeomen and none Gentlemen but such as came from Barons or at least the Tenants in Capite if not in Antient Demesn But for this see Edw. 1. Tit. Attorney 103 And the Learned Ianus Dane-geld is here also reduced to 12 d. the Hyde as of Old from which it rambled to 3 4 6 8 10 or 12. strict provision is also made for keeping of Arms and against using or lending them for the dammage of Others Nay a mulct is set upon him whose Lance or Sword doth much Trespass though against his will He is to be severely punished that disarmeth any unjustly and must answer all the mischief that ensueth such disarming To this Kings time belongeth the case of William the Kings Chamberlain de Londonia who refused to find a man for the Army as his Tenour required But the Abbot of Abbingdon of whom he held in presentia sapientum in a Witen Moot rem ventilari fecit c. Unde cum Lege Patriae decretum processisset ipsum exortem Terrae merito deberi fieri c. by Friends it was composed and the Tenant enjoyed his Land I find it from Sir Robert Cottons inestimable Treasury cited by Mr. Selden on Hengham Nor can I deny but this with divers other cases might forfeit the Land But as in case of Alienation of such Tenures a Statute of Edward the 3d. provided that the King shall not retain the Forfeits but shall only take a Fine Reasonable which the Chancery must also assess by due Process So is our Law very tender in all cases of Forfeit And among the old Wytes Wardwyte was for the Militia being an acquittance of Mercy to him that had not found a man for the Servise according to his Tenure Of which old Fleta with others The Laws of this King do evince the Tryal per PARES to be long before the great Charter Nor would it be hard to shew it before King Henry and besides all other hints through Elder times the case is well known of Roger Fitz Osborn apprehended by Tiptoft Sheriff of Worcestershire and condemned for Treason in King William the Norman per judicium parium suorum Of which antient Historians before the Commentator on Magna Charta I should not omit King Henry's Charter to the Abbot of Bee confirming his antient Customs and Priviledges prescribed for St. Edmonds time for Grand Assizes c. yet to be found in the Book of Assizes lib. 26. Pl. 24. and in the 3d. or 8th part of the great Reports and in the Comment on Magna Charta cap. 11. but here it is from Ethelred and Edward the Confessor One of
and nearer in infinitum yet they still shall be Asymptots and never meet for such attend Hyperbolies Which yet is more Demonstrable by Reason than is that of Mersennus or others by sense that Concave Glasses may be placed in such a continued proportion may I say of Reflection that by such it may be possible to fire a Ship or other matter combustible at a far greater distance than between Dover and Calice I say not as some have said in infinitum But in this and all the Mathematicks who can add to him that did contract and correct Longomont into a page Our Country-man he is but at too great a distance in Breda But I must not wander from K. Stephen His Repeal of Roman Laws is also in Sarisburiensis living in the time of K. Henry the 2d an Author of Credit and polite enough It is among his Court trifles Polteraticus or de nugis Curialium Nor is he content to meddle only with mean Courtiers but even of the highest he is plain enough And one of his Thesis is that by Reason and Scripture it is both Lawful and a glorious Act to kill a publick Tyrant But of his exceptions to the Oath of Fealty we must have more in its Time and Place That of K. Stephen is in his 8th Book and 22 chap. near enough to his discourse of Tyrany Where we have also an hint of him that brought those Laws into this Kingdom Theobald the Arch Bishop of Canterbury going to Rome for his Pall some say and for this the Monk of Malmesbury would be considered Who hath also Recorded K. Stephens Oath of which we must speak again I must not dispute whether those Italian Laws by him prohibited were the Civil or the Canon Laws which I rather believe Although I cannot deny but the Civil also did come in or intrude upon our English Laws Nor may I forget a passage of Parliament in that famous Appeal or charge of Treason in King Richard the Second's Time The Lawyers especially Civilians were consulted about the charge They conceived it not to be rightly moulded according to the forms of Law But the great Council resolved and declared that they would proceed by no other Law but the course and Custom of Parliament To which they added that England never was ought or should be Ruled or Governed by the Civil Law which yet is enough some think too much in causes Maritime and Ecclesiastick that I speak not of any other Courts Fortescue or rather the young Prince in him telleth us of some of our Kings that have attempted to bring in the Civil Laws and patrias Leges abolere but I cannot tell who those were no more than the Learned Commentator Except perhaps he may reach up to King Lucius who did desire the Roman Laws even for the State but can we say the Civil Laws were then Born or at least Christned enough for a Christian King But the reason why any King so much esteemed the Civil Law may be rightly guessed to be this grand maxim of Tyranny Quod principi placuit Legis habet vigorem A Sentence of the Civil Royal or Imperial Laws citeth indeed by Glanvil Bracton and others of our Lawyers who refuted rather than allowed it But in this who can add to Mr. Seldens late Dissertations on Fleta Wigornensis lived till K. Stephens time In him or his Continuer we find what Laws these were how or who did bring them hither For we are there told that Theobald with other Prelates had a Summons from the Pope to Rome and there were admitted to a Council such as many ages could not Parallel For thence he saith they brought those Canons or Decrees quae longe lateque per Angliam jam Conscriptae He lived not perhaps to know they were prohibited but he doth intimate enough in what a cold manner the Parliament did entertain the Legate sent from Rome He was a great Leveller it seemeth For he came to pull down and to destroy that so he might plant or build we read it in the Monks Who bring this Legate Coram Rege primoribus And again before the Commons also Episcopis Abbatibus innumera Cleri Populi multitudine Ere long we find K. Stephen at another Parliament ad Boum vadum Oxes foord or Oxford Where some Lords or Prelates are committed for suspicion of Treason And by some it is ascribed to the King alone But in the Monk of Malmesbury we may find it done upon complaint of Those he calleth potent Laicks and by Councel or perswasion of Magnates and Proceres Regni The thing doth speak it self For one of the Lords committed was the great Roger of Salisbury the grand Favorite of whom before His Charge was this in chief that without leave of King and Parliament he had built and fortified a Castle But in his own Devise this was the Castles name he did ensnare himself The Name and Fate hath since been found observed more than once and yet they write it was the fairest Castle in all Europe Matth. Paris followeth Huntingdon and Hoveden but in this they both come short of Malmsbury well acquainted with that famous Roger whose misgiving heart was like to have prevented what did follow in that Parliament But so we might have lost or mist that Act which here was made for the Militia setled clearly in the King and Parliament We find it also in the old Continuer of the Monk of Worcester Who living at that time doth tell us that in full Parliament habito postmodum Concilio coram primoribus Angliae statutum est it was Enacted for a Statute that All Burghs Castles Forts c. in quibus secularia solent exerceri negotia should submit to the King Parliament Regis Baronum suorum juri cedant And by vertue of this Act of Parliament was the Castle of the Devise presently demanded and at length yeilded while the great Prelates neck or his Sons who had been also Chancellor was in the Rope to have prevented his Quartain of which he died In the same Author we find much of an High Constable and several men with that Title One is Milo who did lead the King in Royal State cum honore Regiam ad Aulam ubi Cives fidelitatem Iuraverunt c. Ere long we find him charged with Treason so as is worth considering for the Militia and his Office conferred on Walter de Bello Campo Wigornensi Vice-comite But discontents that rose before did now increase And when the Oath of Fealty was pressed on some they refuse and say the King may take their words if he please But for a Bishoprick the Prelates perswaded a grave man to swallow the Oath and so he did on much reluctance Maurice was his Name Elected by the people a Clero Populo being then presented to the King by Bishops Attesting his deserts and due Election Another Bishoprick is conferred on Philip the Lord Chancellor but Consilio Baronum
in affirmance of the Common Law As appeareth not only by Bracton and Fleta but by Glanvil who did write before the Charter and by all the Saxon Laws which were the samplers to King Henry the first But how tender our Law hath always been in matters that concern Estate or Liberty may well appear by all the Executions grantable for Debt or Dammages The Merchant and the Staple Statutes are and were by Statute not by Common Law They seem as sweeping Rain and Storms that drive away the Body Goods and Lands in Fee at time of Recognition or accrewing since but none in Tail but during life of him that was the Cognisor Nor Copyhold or Goods or Leases for a Term of years but only what was in possession at the Execution done They are fore-known and therefore may be well avoided by all such as do not choose their own destructions And there is a tender care in Law not only of exact and punctual Recognitions and recording of them but in case of forfeit upon a Certiorari sued forth from the Chancery and not before return thereof a Capias shall be granted on the Statute Merchant for the Body only if it be a Laic and if Laic be not found and so returned into the Kings Bench or Common Pleas then on pauze of divers months the exigent may be awarded But in Statute Staple on the first Return of Certiorari may the Execution issue forth returnable into the Petty Bag of all it seems the worst in this But the Merchants Court Aequitatem summam desiderat although a kind of Peepoudres as Bracton and the Notes on Fortescue Upon a Recognizance a Capias doth not go before a Scire Facias be Returned into the Chancery Then a Capias or a Fieri Facias or an Elegit at the choyce of Cognisee as in other Common Judgements And of these the fieri facias is the mildest and the oldest by the Common Law It toucheth Goods and Chattels only such as are the Parties Own not lent by or Leased to another For although the Sheriff find them in the Parties Use and full Possession as he thinks yet may he be a Trespasser in taking such and so may run the hazard of an Action ere he be aware Nor did the old Levari facias seize the Land but Corn or that which grew thereon An Elegit hath its Name from his Election or his Choice that sues it out Who so concludes himself from other Executions This did come by Statute not by Common Law and toucheth Half the Fee and all the Goods but yet with Salvo to Contenement he must not lose his Oxen or his Cattle for his Plough For then he cannot live and keep his Family So Tender is our Law for all Estates and Livelihood Nay this Extent must not be made by Sheriffs who may not divide a right but by a Iury of Inquest And so must be Returned and preserved on Record as the first Capias with all mean Processe must or else it shall be nothing worth as may appear at large in the fourth and fifth parts of the great Reports Hoes and Fulwood with divers other Cases And the second of Westminster that giveth this Elegit doth require both Extent of Lands and prize of Goods to be Reasonable that is by Inquest of Twelve and so returned of Record As is cleared in the Commentator See also Littletons Parceners A Capias ad Satisfaciendum taketh the Body but it is by Statute only for it did not lye by Common Law in Debt or Dammages but only where the Original Action was for Forceable Trespass Vi Armis Which is Now crept into every Trespass But of this Sir William Herberts Case in the third part of Reports It may be forbidden again by Statute as it was first granted and that justly too for ought I know if other course be taken for the payment of Just and Reasonable Debts For the Capias as now managed is a great mischief and divers times to the utter ruine of the Debttors whole Family And yet but very little advantage to the Creditor except the Debtor escape and so the Sheriff come to pay the Debt or except he dye in Prison and the Plaintiff get an Elegit for the Debtors Goods at his death or half his Fee-Simple which he had at the time of Judgement or after it For an Action for Debt or Dammages doth but respect the Person and the Law attendeth not what Lands were enjoyed at the Original or before the Judgment But an Action brought against an Heir may aim at Land and so may charge it although he Aliene while the suit dependeth Neither shall I need to add that all these Executions must be sued out For this is required by Law except in the Kings Case within one year and a day after Judgment Yet they may be continued after and by a scire facias be renewd or repealed till the Judgment have Full Execution But this was also given by Statute and to this may the Debter plead although he cannot plead against an Execution Yet it may be suspended by a Writ of Errour and Recognizance according to the Statute of Iames and 3 Caroli And without a Writ of Error after judgement if the Defendant have matter to discharge him of the Execution still the Law is open for him And he may relieve himself by a Writ of Audita Querela And in case of Elegit as soon as the Debt is satisfied the Debtor may enter on his Lands again and if he conceive the Creditor satisfied by casual profits he may bring a scire facias upon which the Creditor may clear how much he hath received of the Debtor's Estate Unto this occasional discourse I shall only add that grand maxime of our Law that Executions ought to be more favourable than any other Process of Law whatever Of which the great Judge upon Littletons Releases and the second of Westminster in Edward the First And for Executions for the Kings Debt's restrained by the great Charter I have little to add to the Comment on the eight chapter of that Charter But the twelfth of Articuli super Chartas hath afforded a Writ commanding the Sheriff to accept of Sureties else an Attachment lieth against him or the party may bring an Action against the Shetiff that refuseth Sureties It is a maxime in Law that a mans House is his Castle so that the Sheriff cannot break it open for an Execution But upon a Writ of Seisin or Possession the Sheriff and other Officers upon suspicion of Treason or Felony may break open an House and so also in common Executions where the King is a party But in all such Cases first the Sheriff must request the door to be opened And the First of Westminster doth also require solemn demand of Beasts driven away into a Castle or Fort which is a kind of vetitum nomium which may be regained By Withernam Which Case I cite the rather because of
in Parliament Which was the Receiving of Petitions As the Rolls of most times witness It being the old Mode and others accounted it somewhat against Reason that Petitions should be taken and brought into the House by those that were to debate and determine them and so might at pleasure keep them Out or too hastily might press them in Whereas they were to be filled up in course and so to be debated as they were received which was therefore entrusted to the care of known and sworn Officers of the Kingdom Although of late their work in Parliament be so strangely degenerate from that it was of old when also beside Receivers there were some appointed for Tryers of Petitions who as it seemeth were to enquire of matter of Fact expressed in the Petition that it might be cleared and rightly stated before it came to be debated in full Parliament I do not deny but these Triers of Petitions were most frequently some of the Bishops and other Barons But by this I am not convinced that the Lords had by Right and Legislative Power or were the sole Determinors of all Petitions as some would infer or that they were the sole Judges except also the Petty Jury that are Tryers of Fact shall be esteemed the sole Judges of Matters of Law And yet I shall not deny but Petitions concerning abuses or errors in Judicature were often deermined by the Lords as the great Judges but of error in the King's Bench as Judges above the King as was shewed before or from the Exchequer In Queen Ellzabeths Time for the seldom meeting or great Affairs of Parliament the Writs of Error from the King's Bench were by special Act of Parliament to be brought before the Judges of the Common Pleas and Barons of the Exchequer and by them to be determined But with these express Limitations as the Law shall require other than for Errors to be assigned or found for or concerning the Iurisdiction of the said Court of Kings Bench or for want of form in any Writ Process Verdict c. and that after all the Records and all concerning them be remanded to the King's Bench as well for execution as otherwise as shall appertain and with this express Proviso That any Party agrieved by such Iudgment in the Exchequer shall and may sue in Parliament for a further and due Examination By which I do not see such Parties agreed were absolutely tied to Petition the Lords onely although it were onely in a Case judicial Yet I deny not but in Edward the 3d. there was a Committee made of a Bishop two Earls and two Barons to hear and determine all Petitions complaining of Delays or Grievances in Courts of Justice But with great Limitations so that they must send for the Records and Judges which were to to be present and be heard and then by good advice of the Chancellor Treasurer Judges and other of the Council to make an Accord yet so that all be remanded to the Judges before whom the Cause did first depend who were then to proceed to Judgment according to the Accord of the said Committee And in Case it seemed to them to be such as might not well be determined but in full Parliament that then the said Records or Tenors should be brought by the said Commitee to the next Parliament it being the Common Law of the Kingdom and so expressed in all the old Books that all new unwonted difficult matters of consequence should still be brought and submitted to the Judgment of full Parliament so that all our Iudges did and ought to respit such Causes till the next Parliament of which there be almost innumerable Precedents in all the Rolls Nay in Richard the 2d there was a Committee of Lords and Commons appointed to hear and determine all Petitions present in that Parliament But afterwards it was adjudged and declared That such a Commission ought not to be given committing or betraying the High Power of Parliament into a few private hands as we may learn out of Henry the 4th beside other times Yet the Modi of Parliament admit that some extraordinary Cases where the Estates could not agree or the greater part of the Knights Proctors Citizens c. There by consent of the whole Parliament the Matter might be compromised to 25. chosen out of all Degrees and to fewer till at length it might come to 3. who might determine the Case except that being written it were corrected by Assent of Parliament and not otherwise And this seemeth to be the Law of Nature and right Reason That Delegates should not delegate others which was one reason why the Commons never made Pracies as the Lords did Nor might any Committee so determine but there might be Appeal from it to the Parliament Nor doth the Parliament it Self conclude so but that there may be Appeal from its self to its self even to its Iustice if it erre or at least to its mercy by some motion or Petition In one Parliament of Richard the 2d it was Enacted that no man condemned by Parliament should move for Pardon but another Parliament 10 years after did annul this Branch as unjust unreasonable and against the Law and Custom of Parliament For from this which is the highest here there still lieth Appeal from its Self to its Self For which also by the Laws and Customs of the Kingdom there were to be frequent Parliaments that so the errors or omissions of one being still human and therefore errable might be corrected and amended in another By express Statutes of Edw. the 3d. we are to have Parliaments once every year and oftner if need be They were of Old three or four times a year as may be found in all the Old Historians speaking of the great Feats in the Militia in King Alfred's Time they were to be twice a year and that at London as the Mirror affirmeth which we compared with the Laws of the Confessor And I speak also of King Edgars and Canutes Laws for the Celeberrimus Conventus ex qualibet Satrapta which the Great Iudg applieth to the Parliament Eternity it self would be a Burthen unto him that is not pleased with his Being so would Omnipotence to him that is unhappy in his acting It was therefore goodness in God to limit man as well in Doing as in Being It was also the Wisdom of our Ancestors to bound and limit out the Being Acting and continuing not onely of other Judges but also of Parliaments Yet the Old Modi of Parliament agree in this That a Parliament should not be Dissolved till all Petitions were discussed and answered and that after all there should be Proclamation made in some open place whether any had a Petition or just Address to the Parliament and if none replied then it was to be Dissolved I need not shew the Care of our Ancestors or former Parliaments for most strict observation of their own good Orders and Customs of Parliament which are such so just and reasonable that they well deserve a peculiar Discourse by themselves and suppose it not impossible to clear them more by the practice and consent of most Ages in this Kingdom which might also be useful for the Times to come And although it might be possible to find some of their old custome fit to be changed yet my hope is they will retain and observe such Rules of right Reason good Orders and Customs as may still make this an Happy Nation and that they will be mindful of their great Trust for which they are accountable And however it may be in this World yet they also must be judged at his coming who shall bring every Work into Iudgment with every secret Thing whether it be good or whether it be evil And I am not ashamed both to long and pray for his coming who is King of Kings and Lord of Lords The Prince of Salem that is Peace as well as King of Righteousness Melchizedek the Lamb upon the white Thone All the Creation groaneth and the Spirit and the Bride saith come Lord Iesus come quickly FINIS
Iews in the Laws of the Confessor Some Kingdoms are in Fee to others and must do Homage Swearing Fealty So Scotland unto England so was also our English King but not the Crown or State which hath oft in Parliament been adjudged and declared Imperial Independent when himself did Homage unto France And yet I do not find our English King did ever much Scruple at his waging War with all France and the French King also but did often fight in Person against his Person and he might do so by Law if the King of France did Injure and Oppress him against Law That I say nothing of the Personal Challenges by Rich. the first Edw. the third and Rich. the second Or of King Iohns being cited or Condemned by France for Murther in that Kingdom This might yet be enlarged and further cleared from the good Laws of K. Henry the first which are so strict for Allegiance and due Fealty to every Lord that they seem almost to forget our old English Clemency and yet they speak enough of a Vassals impleading c. his Lord for which divers Chapters from the 40 th to the end are very considerable And the 55 th Chapter limiteth all Homage and Fealty per honestum utile that which is honest and profitable and as Honestum there respecteth God and the common Faith Deum fidem Catholicam so must Utile respect the Kingdom and the Common good it being usual for those times to express the Common Good by such a Phrase of Utile So the Laws of St. Edward for Foromotes Heretokes ad Honorem Coronae ad Utilitatem Regni So King Williams Additions were granted and Confirmed ad utilitatem Anglorum So the Parliament at Merton was to treat de communi utilitate Regni which may be considered in the Writs of those times and the great Charters granted à tout la commune Dengleterre as Articuli super Chartas And the first of Westminster pur le common profit de st esglise de Realm and the Confirmations of the Charters in Edw. the first forbidding all Impositions c. but by Common assent of all the Realm pur le common Profit de ceo which must be determined by Commune Assent and no otherwise So Ethelreds Law Efferatur Concilium quod Populo Utilissimum And Canutes quae ad Reipublicae Utilitatem Commune commodum which there may Paraphrase Regalitas of which before And however the late Oaths of Allegiance are if we consider the old Oaths both in the Saxon and first Norman times we shall find them to respect the Kingdom and its common Good and Profit as well as the Kings Prerogative or private Profit to the Crown By Bracton with others we are led to the Laws of the Confessor for our great Allegiance But in those Laws the Oath is to defend the Kingdom with the King and that by such an Oath we should all be sicut conjurati Fratres ad defendendum Regnum contra Alienigenas contra Inimicos unâ cum Domino Rege c. That it was so also in the Brittish times of K. Arthur whose Parliaments we may assert by more than that in Caius of Cambridge we find in these very Laws and that by Vertue of this Oath King Arthur raised his Subjects and expelled the Saracens and Enemies a Regno from the Kingdom And the same Laws tell us that the same Oath was renewed and Confirmed by K. Edgar whose Laws are severe enough for Treason but against all Lords as well as the King and it is Punished as Theof And the Laws of Canute confirming those of Edgar require Fealty conjoyned with Duty and Virtue and again with Common Justice Iusjurandum datamque fidem Religiosissimè servato injustitiam pro sua quisque virili Parte ditionis nostrae finibus omnem arceto as Lambard translateth the Saxon of those Laws and in another place of them The Leet Oath of Fealty Iure Iurando fidem det omni se in posterum aetate tum furti tum furti Societate Conscientia temperaturum And to this doth King Edwards Oath of Allegiance in Britton seem to allude que ilz nous serrount Feaul Leaux que ilz ne serrount Felons ne a felons assentaunts yet I do not deny but Theof in this Oath might include Treason with other Felony as vvas touched before but however it is as well for the Kingdom or the Common good as for the Kings Prerogative or private Honour o◠the Crown So also the first Norman Laws called the Conquerors require an Oath of Allegiance but for the Publick Peace and common Justice to the Kingdoms good as much as to the Crown for so the words run fint Fratres conjurati ad Regnum N. contra inimicos defendendum Pacem dignitatem N. Coronae N. ad Iudicium rectum Iustitiam constanter modis omnibus pro posse suo as K. Canutes Laws before sine Dolo sine dilatione faciendam This is now continued also through our great Charter and all the Confirmations of K. Edwards and K. Williams Additions in utilitatem Anglorum vvhich may be considered as a good Comment on the usual vvords in Indictments against the Peace and Crown and Dignity vvhich by those Ancient Lavvs vvas to be joyned vvith the publick common good and Justice of the Kingdom So that Allegiance vvas ad Legem to the Laws the Kingdom and the Kingdoms good or Profit together vvith the King And in all the Lavv Books vve may read of Treason done and committed against the Kingdom as against the King So in Hengham Parva cap. 3. If any raise War against the King or against the Kingdom ubi quis movet Guerram contra Regem vel Regnum And his Commentator referreth to several Cases in Edward the third Henry the fourth with Plowden and others which would be considered Nay there are many old Authors and Masters of Law that expresly declare it to be as Real Treason to seduce the King or the Kingdom or an Army for the Kingdoms Safety as to Act against the Kings Life So in Hengham Magna cap. 2. Treason is branched thus de Nece vel Seditione Personae Domini Regis vel Regni vel Exercitus And the very same Division of Treason is in Glanvil both in his first Book and second Chap. and the first Chapter of his 14 th Book To which also may be added Bracton Lib. 3. cap. 3. de Coronâ and Fleta lib. 1. cap. 21. vel ad seductionem ejus vel exercitus sui and Britton cap. 22. disheritur de N. Royalme ou detrahir N Hoste of which also Stanfords Pleas of the Crown lib. 1. cap. 2. and others that Wrote since the Twenty fifth of Edward the third which may seem to limit or to lessen high Treason but not to annul Treason by the Common Law And in Cases of such Treason they declare that although there be no Accuser but only Suspicion sed fama
In the Conquest about Investitures K. Henry the first wrote to the Pope that he could not diminish the usual Rights and Dignities of the Crown or Kingdom and that if he should be so Abject as to attempt it his Parliament would not permit it Optimates mei totius Angliae Populus id nullo modo pateretur In the great Moot of Scotlands dependance upon England Edward the First confessed as much to another Pope to whom also the Parliament both Lords and Commons wrote that they they were all obliged by Oath to maintain the Just Rights Liberties Laws and Customs of the Kingdom where we may see their Oath of Allegiance to the Kingdom that nothing should be acted against Them In exheraeditionem Iuris Coronae Regie Dignitatis ac subversionem status ejusdem Regni nec non praejudicium Libertatum Consuetudinum Legum Paternarum These are on the Rolls and printed on the Statute of Merton and in Walsinghams Edward 1. and the Surveigh of Normandy And from other Records of the same King we learn that when the Pope demanded the Grants of K. Iohn he answered That he could not do it without consent of his Parliament Sine Praelatis Proceribus Regni being tyed by his Coronation Oath to keep all the Laws and Rights of the Kingdom Illibati and to do nothing that might touch the Crown without their Consent Which may be added to that before in St. Edwards Laws of the Kings Oath to do all things Ritè per Concilium Procerum Regni When the King of France demanded Homage of K. Edw. the Third he desired Respite till he had the Advice of his Great Council as we may read in Froizard because he could not act without them in such great Affairs And when the Pope demanded Homage of the same King he referred it to Parliament who adjudged and declared that K. Iohns Grants to the Pope were unjust illegal and against his Coronation Oath being done without his Parliaments Assent or Counsel And yet K. Iohn's Charter to the Pope in Matth. Paris doth pretend it done Communi Concilio Baronum And about Stephen Langton the same K. Iohn did write to the Pope that he could not depart from the Liberties of his Crown but would or should defend them to his Death And hence began the Great Excommunication which begot a Confiscation of the Church Revenues hinc ille Lachrymae which could not be stopped till the Crown did stoop to Pandulph which might have excused the poor Hermit Peter from being so cruelly dragged from Corf◠Castle to Warham But when the same King felt his Arms loose he laid about him so that all believed he meant to strike In that Meen the Arch-bishop told him It was against his Oath to raise or make War without the Consent of his Great Court Si absque Iudicio Curiae suae Contra quempiam Bellum moveret to be added to the Militia But the fire was already kindled and the Smoak or Flame brake out at Nottingham I must not touch the Barons Wars except I had leisure to discourse and discuss them freely Only as we found our Great Charters made up of old Laws and Customs so I might now also clear it more that it was not a new Fetter on the King to have some Supervisors set about him for to order all his Actions who by his Coronation Oath was tied to do nothing touching the Kingdom but with Advice and Consent of the Great Council per Concilium per Iudicium Procerum Regni That it was so also among the Britains to all observed before I might add the Old Scottish Custom of choosing Twelve Peers in Parliament to be the Kings Tutors as we may call them for by them the King must be wholly governed Quorum Concilio Rex Regnum gubernare debebat as we may read it in Walsinghams Edward 1. besides their own Chronicles that I say nothing of the Twelve Brittish Peers of which Cambden in Siluribus We need not much wonder at the Writs in K. Iohn's Time requiring all Men of all Conditions to oblige themselves by Oath to maintain the Great Charter and to compel the King thereunto Et quod ipsum Regem pro posse suo per Captionem Castrorum suorum distringerent gravarent ad praefata Omnia Exequenda when as this very Clause was in his Charter Et illi Barones cum Communa totius Terrae distringent gravabat nos modis Omnibus quibus poterunt scilicet per Captionem Castrorum terrarum possessionum aliis modis quibus potuerint donec fuit emendatum secundum Arbitrium eorum Which may be added to that before of our Allegiance or Oath of Fealty to the King with the Kingdom and of the Kings Oath to be guided by the Judgment of his Great Court. Nay as if K. Iohn's Salva persona N. Reginae N. Liberorum N. had been too loose in K. Henry's Charter it was expressed thus Licet Omnibus de Regno N. contra Nos insurgere Nay and to do all things quae gravamen nostrum respiciant ac si nobis in Nullo tenerentur These times seem not to attend our Grand Maxim of State The King can do no wrong or at least they understood it not as some late Courtiers would perswade us Yet it is true he can do nothing but by Law and what he may by Law can do no wrong And if he do against the Law his Personal Acts Commands or Writing do oblige no more than if they were a Childs And the Books call him an Infant in Law though his Politick Capacity be not in Nonage as the Parliament declared in Edward the Sixth which is not to exempt him from Errors or to excuse his Crimes but to shew that he must be guided by his Council and that his own Personal Grants or Commands cannot hurt any more than an Infants which may be reclaimed and recalled by the Council of the Kingdom So the Mirror saith The King cannot grant a Franchise to prejudice his Crown or others because he holds his Right and Dignities but as an Infant Cap. 4. Sect. 22. If I should say The Commons in Parliament are and were the Kingdoms Peers as well as the Lords I might vouch an Old Authority as good as the Ancient Modus of Parliament which doth often call the Commons Peers of Parliament as well as the Lords So debent Auxilia Peti pleno Parliamento in scripto cuilibet graduum Parium Parliamenti oportet quod omnes Pares Parliamenti consentiant duo milites pro Comitatu majorem vocem habent in Concedendo contradicendo quam Major Comes Angliae c. So in doubtful Cases of Peace and War disputetur per Pares Parliamenti and if need be Twenty five shall be chosen de omnibus paribus Regni which are so specified Two Bishops Three Proctors Two Earls Three Barons Five Knights Five Citizens and Five Burgesses And again Omnes Pares
It cannot be expected that I should shew the Original of all Changes or Distempers in this Kingdom It is work enough to shew our first Mould or Constitution yet for this also it cannot be doubted but the Barons Wars and Power might gain upon the Commons more than on the King he had such Bounds before that he could hardly be obliged more or capable of granting much but what was due before to all his People But it might be easie for the Potent Lords to grow upon the Commons in the Name of Barons In that Name I say for I cannot determine but the old Barons being the great Freeholders and the Lords of all the Manors that have left their Names in our Courts Baron had by Law and Reason much more Power than had the Kings Patentees Created Barons by Patent or Writ But this new Creation did but multiply the Iudges or the Kings Councellors for by so taking their Commission from the King they were only as other Judges in Inferiour Courts and so did really lose their great Power of Iudging which was proper only to those who were the Kingdoms Peers and Iudges So that these Lords did justly admit the Commons or rather were admitted by the Commons into the grand Iudicature and it may be that as the Barons did communicate their Power Iudicial so the Commons might communicate their Legislative unto those who had the Name but little of the Nature of the old Barons by Tenure yet by so doing they might bring Confusion or an harsh Discord into Natures Harmony But the main occasion seemed thus the King was tyed by his Coronation Oath to hold keep and defend the just Laws and Customs chosen by the Commons Iustas Leges consuetudines quas vulgus elegerit and this Limitation of Iust seemed to admit of reason or debate so much as might convince the Laws required to be Just for else I know not that the King was ever tyed to them And because he was or might be an Infant he had still a great Council about him to discuss the Laws proposed by the Commons and for this Cause he did and by reason might Summon the Lords or any other Wise and good Man he knew to come and give him Counsel as the Writ speaketh to the Lords and Iudges c. De quibusdam arduis nobiscum tractaturi Concilium impensuri So we find the old Acts passed per Consilium Baronum as we might shew in all Ages And because he used to demurr at Bills till he had the Advice of his great Council hence it may be for more Compendium the Bill was sent up first to the Lords as the Kings Counsellors and if they Counselled him against it then he answered Le Roy s'avisera The King will yet be farther Advised for he did not and I think he could not give a denyal nor of old perhaps Demurred till the Lords advised him against it I dispute not how much the Commons might oblige the Commons without assent of Lords or King Nor have I yet said that in the Coronation Oath the Commons Just Acts are called Laws and to Mould them may be works distinct enough and the plain truth is his Oath is to hold and to keep and to defend the Commons Laws à Tenir Gardir Les Defenderer per se tenendas protegendas as well as to Grant or to Confirm However I do not see either by Reason or Law That the King was so obliged to the Judgment of his own created Lords and there be few or none others left in England that he might not be convinced by the Reason of the Commons either without or against the Lords And beside divers Ordinances without any of the Lords it cannot be denyed but in Divers ages there were Acts of Parliament made without or against all the Lords Spiritual which yet often were the Major part of the Lords House and had as good it may be better Votes as Barons by Tenure than had all the other Lords by Writ and Patent only which might make them Judges or Councellors much rather than Law-makers I should still be far from desiring to obtrude my own Fancies or Opinions upon any least of all to the wrong of others Therefore if any can produce a better Title my Petition is they may be heard and may receive their Just Rights and Priviledges But if this be true which I now only propose and submit to better Thoughts and Judgments then had the Lords of late but a Right Consultative of making Laws And besides all that was said before this seemeth one Reason why our Ancestors did so willingly follow the Vice of Nature in placing the Power Legislative Iudicial and Executive in three distinct Estates as in Animals Aerials Etherials or Celestials three Regions and three Principles in Naturals that so they might be forced to consult often and much in all they did And if this frequent Consultation were retained and observed still it might not only occasion good Reviews but also prevent That which to the Common-wealth I fear and not Alone to private Persons may be sometimes prejudicial in a sudden Vote or Act of one House or one Body and yet one may be better much than Many if they be not good It must be granted that in Bodies of the Best Complexion and Composure here below there may be such Distemper and such Gangrene in some Members that it may be more than fit to cut it off Nay what was best may come to be the worst in Putrefaction That it may be meer Necessity to bury it although it were as Dear as Sarah was to Abraham or set on high by him that raised up the Brazen Serpent which see e're long lye buryed with this Epitaph Nehushtan And to all that is truly Just the Commons of England will not need to plead a bare Necessity for by Law and Reason too it may be said and proved I believe That both the King himself who chooseth by his Writ and All the Lords by several Votes have left the Legislative power so to the House of Commons that they had a Legal Right to do what all the Kingdom and Common-wealth of England Justly could But They are Men and therefore may be much unjust Nay where the Thing they do is Iust They may be much or most unjust I have neither Calling nor Ability to Judge them Nor may I act with force against them for whate're I think Unjust No not if I should think they did Usurp the Crown For if the Law Reports and Books deceive me not it hath been Judged Treason and so is for Private Men to rise conspire or Levy War against one that Usurps the Crown and Rights thereof except it rightly were declared Usurpation or that others should or might oppose him that did so Usurp Of which the Reasons may be Great and obvious Let me then suppose any one Man of all the Commons in Parliament for I will not
a Common Council in his time and before In the same Laws this William whom some call the Conquerour granteth that Cities Burroughs Castles Hundreds and Wapentakes should be so kept and watched as the Sheriffs Aldermen c. should best order for the good of the Kingdom per Commune concilium by such Common Council and a little after giveth this Reason Because they were founded for publick defence of the Kingdom and People thereof idcirco observari debent cum omni libertate integritate ratione a very happy Trinity And for Service with such Arms as were by Common Council assessed The same King called the Conqueror hath indeed such a Law That all Earls Barons Knights c. should have and keep themselves in Arms and Horses as it became and behoved them So much of this Law the King's Declaration cited for the Commission of Array But the following Words of that Law quite dash such Array for the Close of all is according to what they ought to us by their Fees and Tenure to do by Law sicut eis statuimus per commune Concilium Totius Regni Even by Parliament for the Common Council of the whole Kingdom These Laws of King William with the Additions and Emendations of the Confessor's were afterwards confirmed by King Henry the 1 st as appeareth by his Charter not only in the Exchequer but in other Places also besides that we have in Matthew Paris a Copy of which was kept in every County And the same Charter was again confirmed by King Iohn they know it may be proved and again by King Henry the 3 d. and so it came into the great Charter and by Consequence Confirmed in more than thirty Parliaments In which also there hath often been most especial Care of this touching the Militia being one of the main Causes of those Statutes entituled Confirmationes Chartarum and of those De Tallagio non concedendo except by common Consent in Parliament besides many later Statutes in King Edward the 3 d. and Henry the 4 th with other Times I deny not that in Henry the 4 th there did issue out a Commission of Array But it is as true that in the last Parliament of the same King Henry the 4 th it was again declared as the undoubted Right of this Kingdom not to be charged with ought for Defence of the Realm or Safeguard of the Seas but by their own Will and Consent in Parliament By which we may learn how to interpret all the Precedents acted by the King for his Array and by how much the more is it true that some Commissioners of Array have been confirmed by Parliament which is always needful to Confirm any such Array Which yet is not proved ever to be Paralelld in any Parliament for ought I can find For in all yet seen there is no such boundless Authority given to two or three Strangers or others to compel all Men but themselves to provide and bear Arms how and when and where it shall seem good to such Commissioners Which at once seemeth to Dissolve all Laws of Liberty Which by the Mirrour with other old Lawyers is chiefly placed in this not to be tyed to any Man but by ones own Consent In explaining of which they are Large in shewing how the Tenures of the Crown were appointed for Defence of the Kingdom and none tyed to Service but according to this Tenure which was assessed by Common Consent And if such Commissions of Array might be Legal from the King Escuage is so far from the worst or hardest Tenure as it was commonly thought that it would prove the best and easiest in all the Kingdom For if the Escuage be uncertain by Tenure None that hath read so much as Littleton can be Ignorant that by the Commom Law and Custom of the Kingdom it is not to be assessed by the King or any other but by Common assent in Parliament which hath now done much to settle this also And if Certain then is the King as really limited as the Tenant So that the King cannot command or require his Tenant but according to his Tenure expressed Not when he will For it must only be in time of War and this is not to be determined by the King but by the Courts of Iustice. When they are open as appeareth by all the Law-Books in the Case of Roger Mortimer Thomas Earl of Lancaster and divers others Nor in all times of War but only in a Voyage Royal to which Escuage is most properly tyed and this must not be determined by the King who may be a Child Sick Incomposed nor by his Marshal or Constable but by the Courts of Justice Nor in a Voyage Royal as long as the King may please But according to the Tenure usually forty Days for each Knights Fee and it hath been demurred in Law when those forty Days should begin They are Littleton's own Words and very Pregnant as if he thought that by Law the King could have no Host or Muster but by Consent of the Commons and he was as like to know our Laws as most Men living now Nor is the Tenant to serve but according to his Tenure in Gascoyn Wales Ireland Scotland to which Escuage proper but rather from the Scute or Shield and the Books have divers Cases where the King hath required Service denyed by Limits in Tenures which the Courts of Iustice especially Parliament in all Ages did determine Nor is the King to determine how the Knights shall serve him whether in Person or not For this is by Law at the Tenants Choice And if the Knight or his Proxy will not attend or stay out his Time yet cannot the King proceed against him but in a Court of Iustice and not by Marshal Law Yet the Marshal's Certificate is a Legal Evidence that the Tenants did not appear in Service but his Reasons must be heard with all just Pleas. Nor with what Arms or Horses the Tenants may serve all is expresly limited if the Tenure be certain and if not Certain it must as all Lawyers know be assessed by Parliament which did also at first establish that which now is Certain Nor would it be difficult for a mean Historian to shew how in all Ages the Militia was as well disposed and managed as it was Moulded by Common Consent which is very considerable and the rather because all that wrot for the Array did most or only run out in this That the King had the sole disposal of the Militia not attending that if this had been proved which never was that I know yet this was only but half and it may be the least half of the Question For by that strange Commission of Array the King did not only challenge the Right of Disposal of the Legal Militia already setled but also of Moulding and Making a new Militia not yet made or ever thought of that I could learn by any of our Ancestors If I were forced to enter the
full and clear Parliament We need not suspect or doubt it for in those very times there were such Parliaments and such degrees Nay Caesar himself found such degrees among the Britains a King and Druyds which were as Bishops and Archbishops as we may clear anon Dukes and Nobles besides the Commons So civil was our British Ancestors Of whom much more ere long And for the very first times of Christian Religion which was much higher than Austin the Father who might have been great Grandfather to Austin the Monk King Alfred's own Laws acknowledge that in this Island the Laws were then made by a Common Council of Bishops and other Wise men or elder men of the Wytan Old Bede seemeth plain enough for this in several places Servabant Reges Sacerdotes Privati Were the Commons before the Lords Optimates suum quique Ordinem And of the Saxons called in by Common Council Initum est Concilium quid agendum c. placuitque omnibus cum suo Rege Vortigorno ut Saxonum gentem in auxilium vocarent And of Ethelbert King of all the South to the River Humber Among other good works saith he quae consulendo conferebat etiam decreta Iudiciorum juxta exempla Romanorum Concilio Sapientiunt constituit And among other Laws of his in the same Bede that is one in special for Priviledge Ecclesiae Episcopi Reliquorum ordinum That this might also extend to the great Priviledge of Parliaments I could the rather believe from the Laws of the said King Ethelbert yet to be found in the old book of Rochester Textus Roffensis of which Sir Henry Spelman unto whom we owe so much for all Antiquities Where after provision for the things of God and the Church to which St. Edward's Laws allude the next Act is for Priviledge of Parliament it seems being for the punishing and sore fining of those that should do any damage Gif Kyning his Leode to him gehateth c. And in the old Chronicle of Canterbury we read of this King Ethelbert being at Canterbury with his Queen and Son and the Archbishop Austin Caeterisque Optimatibus convocato ibidem Communi Concilio tam Cleri quà m Populi With divers other proofs for Parliaments in Charters to that Church in print And Spot deserves as much One thing I must not omit that Bede observing how Religion was preached both to the King and to the Counts omnibus Comitibus saith there was a License granted for publick Preaching but when the King and divers great men were converted and baptized yet there was no force used to compel others to be of that Religion because he saith they were taught that Christs service must be voluntary and not forced But the Mirrour telleth us the King was bound to compel men to Salvation O happy men or unhappy King But the Britains would not be forced from their Rites by Austin the Monk Absque suae gentis imprimis Senatorum suffragio as a learned man translates King Alfred's Saxon Bede Which is also very clear in several places for setling of Christian Religion when it was freely chosen with destruction of Pagan Idolatry with Lent and other things confirmed by divers Acts of Parliament in time of Ercombert and King Edwin Mid his Witum mid his Ealdormanum So is the old Book of Peterburgh for a Parliament or Heatfield With which we may compare somewhat in Ingulph and more in Bede Ethelward and Huntingdon about the Parliaments which received and consirmed the General Councils and that which established the Division of Parishes and Patronage of Churches Of which Stow and the Antiquities of Canterbury but especially a Manuscript in Camdridge cited by Mr. Wheelock on the fourth or fifth of Bede I should not digress to Sigesberts founding the Vniversity of Cambridge had not King Alfred himself in this added good Notes to Bede By which we may see whence he learned what so many say he did to Oxford the younger Sister For which Polydore is plain enough besides so many better elder Authors It is also considerable that King Alfred calleth Cambridge or Grantacestre a City which Bede would make a Civitatula How little it might then be made by the Danes or others I know not But in old Nennius of the British Cities I find Cair Granth next before Cair Londen And Sir Simon d' Ewes affirmeth it to be ranked before London in Gildas Albarius and an old Saxon Anonymus besides that of the old but not the oldest book of Doomsday Nor must I omit the Records of Richard the First for the Customs of the City of Cambridge found by a Jury in an Assize of Darrein Presentment for the Church of St. Peters in Cambridge Of which the great Judge in his Reports or Commentaries To which I might adde what the Saxon Chronology speaketh of Grante Briege at the year 875 and 921 where we also find an ancient Military Sacrament or great Oath of Fealty more to be marked than may seem at first view Come we to the Saxon Laws extant in print They begin with King Ina whom some will have to be a Britain But in the Confessors Acts he is stiled Optimus Rex Anglorum qui electus fuit in Regem per Angelum qui primum obtinuit Monarchum Totius Regni hujus post adventum Angliorum And that himself and others of his People matched with the Britains But per Communae Concilium assensum omnium Episcoporum Principum Comitum omnium Sapientum Seniorum Populorum totius Regni Not onely a clear proof for Parliaments in King Ina's time but a good Comment on his Laws in print Providing about Matches Dowries and Women's Thirds and all by Parliament as the Proem it self expresses beside King Edward's Laws And for the Saxon Militia a Phrase used by Bede himself Nam egressi contra Gevissorum gentem omnes pariter cum suà Militia corruerunt King Ina's Laws afford us divers Acts of Parliament providing against Thieves Riots Routs and all unlawful Assemblies in several degrees and branches As also for Officers of the Militia to be ready on a great Fine to march upon all just occasions With which we may compare Mr. Lambert's Custos Paganus Sithecundman which some would have to be the Father to our Side-men See Whithred's Military Dooms Egbert is by all esteemed a great if not the first Monarch of the Saxons a great Warriour and a Conquerour But yet he neither made or managed the Militia without a great Common Council or Parliament For which besides all others we have a clear proof in the old Abbot of Croyland to which there was a great Charter confirmed Coram Pontificibus Proceribus Majoribus totius Angliae which were all together at London consulting how to provide against the Danish Pirates Pro Concilio capiendo contra Danicos Piratas c. That also Majores in this place might denote some lower than Earls or Lords may not onely be gathered from
the Subscriptions to that Charter but from Bede or other old Authors that use the Phrase Majores of such Officers or Magistrates as Mayors in Cities now seem to be Of which I might give divers Examples It is worth observing how in these Danish storms all Historians make the Counts or great Shireeves to be Generals or Commanders of the Militia And of these I know none more famous than Dorsetshire Reeve Ethelhem in the great Battel of Hampton or in that about Port of which so many write at the Danes first landing thereabouts Danigeld is scarce so ancient Yet this also was granted for provision against Danish Pirates as St. Edward's Laws affirm Who first remitted this Tax but it came up again about forty years after it had been diverted from its first institution and paid as Tribute to the Danes But this was also by Parliament Of which Ingulph and Hoveden with all about Etheldred and Edward I must not digress to the Parliament of Winchester in King Egbert's Sons in which Tenths of Lands as other Tythes were confirmed for Church-Glebe Of which the Saxon Chronologie with Ethelward Hoveden the Abbot of Croyland the Monk of Malmsbury and Matthew of Westminster with divers others before Polydore To which we may adde King Edgar's Oration to St. Dunstan which is known enough As also the Wednesday Masses one for the King and the other pro Ducibus c. Consentientibus The Charter being subscribed by the King Archbishops Dukes Earls and Procerum totius Terrae Aliorumque fidelium infinita Multitudine I should not omit the Parliaments confirming Rome-Scot much mistaken by divers It was granted by King Ina then by Offa and again by King Ethelwoolf not to the Pope as it is generally thought but to the English School or Alms-house for Pilgrims at Rome Yet it was called Peter-pence because fixed on Peters-day A famous day in our Law as may appear by the second of Westminster and other Parliaments But it might be called Peter-pence from King Ina whom at his Baptism in Rome the Pope name Peter as the Saxon Chronicles others Or there might be as much reason for Peter-pence as there was for Peterburg which was Medhamsted but Vows might be performed or absolved here as well as at St. Peter's Threshold in Rome And hence the name of Peterburg But of Peter-pence before Polydore we read in much older Historians especially the Author of King Offa's Life now printed with Matthew Paris Beside the Laws of King Edgar Canutus Edmund and the Confessor where it is called Eleemosynae Regis But in the Saxon Chronology 't is Kynninges and West Seaxena Almessan And in King Alfred's Life by Asser Menevensis Eleemosynae Regis and Anglo-Saxonum Being confirmed by common Assent or Parliament I must omit the Parliament at Kingsbury where among other divers matters a great Charter was confirmed to Crowland Vnanimi Consensu totius Concilii pro Regni Negotiis Congregati Subscribed by the King of Mercia Archbishops Bishops Earls c. And among others by Offâ—at who was Pincerna Regis Ethelwoolphi Legatus Ipsius filiorum Nomine Illorum Omnium West-Saxonum as we are told by the old Abbot who knew it well I might pass over King Alfred's Parliaments so the famous in all Historians and Lawyers But in none I know clearer than in the old Mirrour Of which before for Alfred and his Parliaments twice every year in London With which we may compare one passage in the Confessors Laws touching this great and old City But of this hereafter This was the learned King who perused all the old Trojan Grecian British Molmutian Mercian Danish and Saxon Laws especially those of Ina Offa and King Ethelbert Cum consulto Sapientum partim innovanda curavit as himself speaketh And his Laws were established by Parliaments by his Witan or Witena Atque eis omnibus placuit edici eorum Observatione As learned Lambert translateth the Saxon. But I may not omit King Alfred's Doomsday-book made by such Common Council the great Roll of Winchester which was again renewed by the Confessor and then again by King William the First and then also called the Roll of Winchester and Doomsday as before Of which old Ingulph with Natura Brevium Yet it seemeth that before King Alfred's time there was such a Doom-book made by Ethelwoolf at the time of the Church-Glebe of which Book the Saxon Chronology at the year 854. But this might rather be a Land-book whence the Phrase of Booeland See King Alfred's Will annexed to Asser. But we also find an ancient Doom-book for their Laws and matters Iudicial Of which Doom-book we read in several places of the Laws of Edward the Senior strictly charging all the Judges and Magistrates to be just and equitable Nec quicquam formident quin jus Communae audacter libereque dicant according to the Doom-book And again in Edgar's Laws we find the Doom-book for Tythes and the famous Kyricseat These succeeded King Alfred But long before his time among the Dooms of Withred made about the year 697. by the King and Bishops Cum caeteris Ordinibus and Military-men or Milites at Berghamsted a Fine is set upon a Commander found in Adultery Spretta Sententia Regis Episcopi Boecâ—-Doom I could believe King Ethelbert's Parliaments were Authors to this Doom-book Of which the Roll of Rochester tha Doomas dhe Athelbirth Cyning with Rihtra Dooma in the fore-cited place of Ethelbert in the Saxon Bede of King Alfred How severe his Dooms were to the Counts old Shireeves and Iudges we find in Asser more in Horn and his Kirk-dooms in his Laws which do also speak of Kiric-Ealdor a Church-Elder But again to the Saxon Militia In Alfred's time there was a League made with the Danes Then the Title was Foedus quod Aluredus Guthrunus Regis ferierunt ex Sapientum Anglorum consulto confirmed by Act of Parliament And the Saxon Chronologer addeth That the Dane swore to the Peace and promised to be baptized as he also was and King Alfred was his Godfather naming him Ethelstane Some adde a Daughter of King Alfred's for his Wife which may be worth enquiring more than now may seem The Articles of this League were again renewed and enlarged by Parliament in Edward the Elder A Sapientibus recitata sapius atque ad Communem Regni Vtilitatem Aucta atque Amplificata In the Preface to those Statutes In this Edward's Reign there was an Insurrection and Ethelwald seized on Winborn c. whose Charge and Crimes was this That he did such an Act without permission of the King and Parliament but an tdes Kynings leafe ac his Witena So the Saxon. And Malmsbury addeth That à Proceribus in Exilium trusus Piratus adduxerat But the King summons a Parliament at Exon and there Mid his Witan consulted how the Kingdoms Peace might be restored and preserved Orabat vehementer obtestabatur such was his Mean to the Parliament hoc unum Curent ne
quem injurià afficiant Beseeching them mainly to mind this That they wronged none A most pious Christian Motion And our Monthly County-Courts are as old as this Parliament at Exon. The Acts are printed But I must not digress to their Ordeals appointed there for Perjury In this Kings Reign the Pope sent his Bull to excommunicate the King and all his Subjects For that Per 7 annos destituta fuerat Episcopis omnis Regio Gavisorum id est West-Saxonum Whereupon the King summoned a Parliament Convocavit Synodum Senatorum Gentis Anglorum As saith the Monk of Malmsbury Et Eligerunt constituerunt Singulos Episcopos Singulis Provinciis Gavisorum For the Bishops Shire used to be equal to the Earls or the Ealdormens Shire with whom he sate in Folkmoote Et quod Olim duo habuerunt in quinque diviserunt King Ethelstane came next He was the first of all the English Kings that ruled over all the Island conquering Wales and regaining Scotland Which being subject to England as a Dukedom thereof was advanced to a Politick and Royal Kingdom As the learned Fortescue doth plainly affirm And for this against all that Buchanan writeth I need onely refer to the Authors and Records cited by the great Master of Antiquities with other Learning Mr. Selden in his short but pithy Notes on it with Hengham To which we may adde somewhat in Polydore and the Saxon Chronology from the year 934 but especially from Oswald's Laws and others of the famous Edgar vouching Ethelstane for Scotland Of which we read in many places beside the fourth Part of the great Reports But that victorious Monarch suffered the Scot to reign under him saying That it was more glorious to make a King than to be a King A pious Prince to whom we owe for translating the Bible from Hebrew which some think he did by some Converted Jews Among his Laws now extant we find divers enacted in Celebri Gratanleano Concilio where there were Archiep. Optimates Sapientes ab Ethelstano vocati frequentissimi And again at Exon we find him Mid his Wytan and their Wergylds for the King Archbishop Eorles Bishops Ealdermen and other Degrees may suffice to prove them to be Acts of Parliament With those several Degrees there mentioned we may compare the Laws of King Edgar and Canute in divers places one of the Ranks of their Nobility as a General or great Commander in Wars which may be observed for the Militia Edmund succeeded and at London holds a Parliament of Clergy and Laity ge Godcundra ge Worulcundra And again Mid Witena getheahte gegodra hada gelewedra And to the Parliament he giveth solemn Thanks for their Aid in setling the Kingdoms Peace His Laws are printed And we omit his Charter to the Church of Glastonbury which was made cum Concilio Consensu Optimatum as we read in Malmsbury But I must not omit that Parliament of his recorded in the Mirrour where we find a kind of Appeal or a legal Accusation of Treason brought by Roceline against Walligrat in full Parliament in the time of King Edmund In King Edred's Reign there was a Parliament solemnly summoned by Writ as we read at large in the Abbot of Crowland To which there was then a great Charter confirmed being drawn or dictated by Turketulus then Abbot but he had been Lord Chancellor And the date is in Festo Nat ' B. Mariae cum Vniversi Magnates Regni per Regis Edictum summoniti tam Archiepiscopi Episcopi ac Abbates quam Caeteri totius Regni Proceres Optimates Londoniis Convenissent ad tractandum de Negotiis Publicis totius Regni in Communi Concilio Edgar was a great Monarch and as great a Conqueror by Sea as Ethelstane by Land It might be easier to shew his four Seas of which so many speak than to set their exact bounds Yet it may not be unworthy of our thoughts to consider how our Ancestors did often divide the Office of their Admirals usually as Nature hath parted our Seas as thinking it indeed too great an honour and a burthen for a Subject to be Admiral of all the Seas of such an Island But the late Cardinal of France did wisely it was thought dispose or rather retain that Office as the best Jewel of that Kingdom which yet by Sea might yield to this But I must not digress nor can I determine the bounds of Edgar's Conquest to the North they say to Norway or the West Of which some speak as if they would but give us hints for farther search and Queries I dare not affirm that in those days our Saxon or British Ancestors did know America But if we may credit any Records besides the Scriptures I believe or know it might be said and proved well that this new World was known and partly inhabited by Britains or by Saxons from this Island three or four hundred years before the Spaniards coming thither Nay the more I consider the Discourses which did pass between the Spaniards and the Mexicans the more I could believe the King himself of Mexico might possibly descend from those that went from hence to Florida or rather Mexico So that we need not wonder at the British Words or Beads the Crucifix or other Reliques which the Spaniards found at their Arrival And for this besides so many other Authors we have much among the British Annals Those in special left by Caradoc of Lancarvan or from him continued by the Beirdhs of Conwey and Stratford gathered and translated by the learned Llhoyd To which we may adde what Doctor Powell hath of this out of Records and best approved British Authors in the Life of Owen Gwyned or David and Madoe his Sons about the Reign of King Stephen To which at least for that which concerneth Hanno or the old Navigations with Plato's Atlantis or what else appeareth in Aristotle Theophrastus Virgil Seneca with others it may not be amiss to compare two late and very learned French Authors of Peleg and orbis maritimus very worthy I think of good perusal But to return to Edgar's Parliaments How that great Council did often dispose the King himself we must discourse in a fitter place We shall now but observe that good Historians tell us that King Edgar by the Council of the Kingdom did repeal the Acts of Edwin both his brother and predecessor Convocato ad Brandanfordeam Regni Concilio fratris Edwini Acta decreta rescindit And the famous Oswald's Law was signed by this King Cum consensu Concilio astipulatione Archiepiscoporum Principium Magnatum It is printed and found in ancient Authors King Edgar's Charter to Glastonbury reciting the Acts of so many Kings before him was confirmed Generali assensu Pontificum Abbatum Optimatum If we may believe the old Monk And the Charter is to be read at large Archiepiscopis adhortantibus consentiente etiam annuente Brithelmo Fontanensi Episcopo caeterisque Episcopis Abbatibus Primatibus And
the Close is Acta haec confirmata apud Londonium Communi Concilio omnium Primatum meorum c. I should be unjust to our Laws if I should omit the Process and Plea of Morgan Hen against Howell Dha the good Prince of Wales Upon complaint they were both summoned by King Edgar Ad curiam suam and their Pleas were pacately heard In Pleno Concilio repertum est justo Iudicio curiae Regis quod Howell Dha nequiter egisset extra Morgan Hen filium sui Huwen depulsus est Howell Dha ab his duabus Terris the Lands then in question sine recuperatione Postea Rex Edgarus dedit concessit Hueno Morgan Hen illas duas Terras Istradum Euwias in Episcopatu Landas constituas sicuti suam Propriam Hereditatem illas easdem duas Terras sibi Heredibus suis Per chartam suam sine Calumpnia alicujus Terreni hominis confirmavit communi nostro assensu testimonio omnium Archiepiscoporum Episcop Abbatum Comitum Baronum totius Angliae Walliae factum est coram Rege Edgaro in pleno concilio c. This Record of King Edgar is in Codicae Landavensi fol. 103. I find it cited by the great Antiquary Sir Henry Spelman and it may be compared with the Monk of Malmsbury and Matthew of Westminster I must not relate the Visions or Predictions of the Fates of this Kingdom which Historians record about the Reign of King Edgar they are in print and may be read of all Besides the Prophecies of both the Merlins for the Scottish Merlin was fuller and plainer than the British in Vortigers time That I say nothing of Cadwalladers Vision or Alans Council which was long before the other Alane wrote on Merlin or of the famous Eagle of Shaftsbury that agreed with others in the Britains recovering their Kingdom again after their grand Visit at Rome whence they must bring Cadwalladers bones This leadeth me also to the Sybils Prophecy of three British Princes that should conquer Rome Brennus was one King Arthur some make the second Et quis fuit alter And of these Sybils or one of them sending a book to King Bladud so famous for the Bath and Greek-Schools or University at Stamford the Scotish Merlin seemeth to have written if among others I mistake not Baleus But of Edgar's Parliaments one was at Salisbury so we read in Chaucer or the old Fructus Temporum by Iulian Notary at St. Albans And of another of his Parliaments at Bath the Saxon Chronology at the year 973. His Laws are now printed and their Title is The Acts of King Edgar and his Parliament Mid his Witena Getheate gerred c. Here we find much considerable of Thanes which all will have to be Noble-men but it must be with them a Saxon word And Dhenian is to serve whence the Princes Motto Ic Dhaen For so it should rather be than in Dutch Ich Dien But why should Noble-men or those that were the freest have their name from serving Here they flie to Knights-service King-service or I know not what most proper as they say to free and Noble-men But from a Judge or Fleta we may be taught that the Saxon Dhaen or Thaen is a Servant but Thayn a Free-man And in this sence it seemeth to be used here As also in Denmark and Ireland Nor did the Britains differ much whose Haene or Hane is an Eldar although Hyne be sometimes used for a Servant And so the Irish Tane is Elder whence their Tanistry or Eldership the cause or sad occasion of such bloudshed These British Hanes the Saxons in compliance called Ealdermen St. Edward's Laws afford so much and it may be Thanes although with them they had the name of Greeues or Graves suiting well with Elders Hanes or Senators With which we may compare the Phrase of Seniores which we read so oft in Gildas Nennius Monmouth and others of the British and first Saxons times in Britain I should be tedious in but glancing over the Acts of Parliament in Edgar's time That of the Standard at Winchester is considerable and that of one Coyn through all the Kingdom The Mirrour is plain in making it an Act of Parliament in Saxon times That no King of this Realm should change his Money or embase or enhanse it or make other but of silver Sans l' assent de tout ses Counties Which the Translator is bold to turn Without the Assent of the Lords and all the Commons We may not omit the Act against unjust Judges or Complaints to the King except Justice could not be had at home For which also the Hundred-Courts were again confirmed and the Grand Folkmootes or Sheriffs Turnes established by Act of Parliament Of which and of their relation to Peace and War more in Edward's Laws which may afford a Comment for the Saxon Militia I need not speak of the Parliament at Calna it is famous enough where Considentibus totius Angliae Senatoribus the Roof fell down and hurt them most but St. Dunston Of which Wigornensis Iornalensis Malmsbury Matthew of Westminster and so many others may be cited King Ethelred's Laws have this Title in Lumbard Sapientum Concilium quod Ethelredus Rex promovendae pacis causa habuit Wodstoci Merciae quae legibus Anglorum gubernatur aefter Aengla-Lage Post Anglis Lagam as an old Author turneth it In those Acts we read of Ordale Sythan the Gemot waes aet Bromdune Post Bromdune Concilium It seems a Parliament And again Iussum ac scitum hoc nostrum si quis neglexerit aut profuâ quisque virili parte non obierit ex nostra omnium sententiâ Regi 100 Dependito By which it appeareth to be a Parliament and not the King only that made those Laws That which Sir Henry Spelman calleth Concilium AE 〈…〉 e Generale was clearly one of King Ethelred's Parliaments and the very Title is De Witena Geâ—ednessan and tha Geraednessa the Englaraed Witan gee 〈…〉 c. And divers Chapters begin Witena Geraednesse is enacted by Parliament And the old Latin Copy of this Parliament telleth us that in it were Vniversi Anglorum Optimates Ethelredi Regis Edicto convocato Plebis multitudine collectae Regis Edicto A Writ of Summons to all the Lords and for choice of the Commons a full and clear Parliament In this Parliament were divers Acts for the Militia both by Land and Sea as most Parliaments after King Edgar and among others for Castles Forts Cities Bridges and time of the Fleets setting out to Sea It is made Treason for any to destroy a Ship that was provided for the State-service Navem in Reipublicae expeditionem designatam as a learned man translateth the Saxon. And no Souldier must depart without leave on forfeit of all his Estate None may oppose the Laws but his Head or a grievous Mulct according to the Offences quality must recompence It was here also enacted That Efferatur
hither for Treason or any other Crime whatsoever Another Charter he granted to the same Minister Cum Concilio Decreto Archiep. Episcop Comitum aliorumque Meorum Optimatum And a third Charter addeth Aliorumque omnium Optimatum And a little lower Coram Episcopis Abbatibus Comitibus omnibus Optimatibus Angliae omnique Populo A very clear and full Parliament His Laws are in print I must not so much as glance but as he that followed the great King so swiftly that his steps could not be seen upon the Sand. May not his third Chapter extend to Priviledge of Parliament ad Dedicat. ad Synod ad Capitul venient Si Summoniti sint c. sit summa Pax. Hoveden will help sometimes for a Comment That of Out-Laws should be explained It is Ore Lagali Regis which is Per Iudicium Coronaterum or in the great and old City Per Iudicium Recordatoris See King Ethelred's Charter to Vlfrie of the Lands of Ethelsig outlawed for Theof Rep. part 6. Pref. But of Woolff-head and the Outlaws being slain upon Resistance I have spoken already As also of Tythes and King Ethelbert's Parliaments in these Laws mentioned and of Rome-scot Danegeld and Weigrylds But of these again ere long Of the Kings Duty and Oath we must speak more in due time Of his Pardon before as it might stand with the Oath of his Crown Here also we find that when his Pardoning Power was largest yet it could not reach to Murder or Treason or other Crimes but so as they must abjure and if they stay and be found any might do Iustice on them without Iudgment It is the 19th Chapter Somewhat we said of Degrees or Counts Earls Thanes or Barons The Phrase doth here occur but of elder times by much nay long before King Ethelbert's Barons if we may believe Historians But of this again in due time Of the Iews also before Iudaei omnia sua Regis seemeth hard but it had a gentle Comment in succeeding times and here also they must be defended Sub tutela defensiones Regis Ligeà The Phrase may be remembred till we meet it again King Iohn did but confirm King Richard's Charter to the Iews See Hoveden and Matthew Paris of Richard and Iohn Walsing Edw. 1. Neustria Pax per breve Regis is a short Expression but it might have a long gloss and be compared with all our books laying this for a principle or foundation of Law That Writs were made by Parliament and without such common Consent could not be changed Of which the Mirrour Bracton Fleta divers others But of another Breve de pace before the Combat in Right or Assize Glanvil Hengham and the Register Of Frank-pledge Tythings Counties Hundreds and Wapentake somewhat before This Law may fill up Lipsius on his Tacitus nor is it useless for the Militia Hac de causâ totius ille conventus dicitur Wapentac eo quod per Armorum i. e. Weapun tactum ad vincem confoederati sunt There is an old Comment on that de moribus Germanorum that may help and please in all of Hundreds Wapentakes Cities Counties with Counts or Eolders of which before in State and Church But to these of the Church I did not then adde their Power and Custom of healing the Sick by anoynting them For which the Saxon Canons of Aelfrick may be perused In this Chapter of Greeves with the Appendix de Heretochiis we may see the whole Model of the old Militia with the Power of Headboroughs Constables Bayliffs Aldermen Sheriffs Lieutenants or Generals all the Greeves both in the Gree and Vae Peace and War for so the Law is pleased to criticize and for Peace we do agree The Law is in print and may be read of all in which it is so clearly stated and asserted by these Laws I should do wrong to take them in pieces Not onely in matters of common Justice or serving of Writs or petty Cases of Peace as some have pleased to express it but when any unexpected doubtful mischief ariseth against the Kingdoms or against the Crown Nay when it proceedeth so far as to War Battel or pitched Fields the Heretoches must order the War Ordinabant acies alas constituebans Prout decuit prout eis melius visum est ad honorem Coronae ad Vtilitatem Regni And lest yet there might be any mistake the same Law telleth us That those Heretoches ductores exercitus capitales Constabularii vel Mareshalli exercitus were and still ought to be chosen Per Commune Concilium by Common Council and for the common good and profit of the Kingdom even as the Sheriffs saith that Law ought to be chosen Again the former Laws are renewed for those that flie and those that die in the War and of their Heriots which here are again remitted with all Relief Of which before I am the longer in this because it was this very Chapter which has been so strangely cited and that also from a place as much suspected as any of all these Laws which I do â—ot speak as if I thought they might not be strongly asserted even there where the oldest Copies are defective And for one instance of many I might produce that piece about the Kings Oath which is cleared not onely by the Mirrour and divers others but by another passage in the oldest of these very Laws themselves by comparing it with what is there said of King Edward 's own Oath to his Kingdom Of which much more hereafter on occasion To that of King Arthur's King Edgar's and King Ethelstane's Conquests much might be added in special touching Scotland Of which before And now I adde That what is here ascribed to Eleutherius may be much asserted and enlarged from those that have clearly stated the bounds extent and jurisdiction of the Province and Diocess of York for to it belonged as I find in a very good Author all the Church of Scotland long before it was divided into modern Bishopricks That of Norway and their Affinities with England and Oath of Fealty may now be little worth but in this that is added at the close of that Law So did King Edward establish Per Commune Concilium totius Regni By the Common Council of the whole Kingdom or by Parliament which may well be added to each and every of those Statutes How the Militia was on particular persons or places assessed by Common Assent hath been observed and cleared already I shall now only adde this That when such Assessments were made by Common Council it was then no more in the Kings power to release them than it was to impose them before or without such Common Assent For this might be cited in more than an hundred Charters to religious houses and places of greatest Franchise in which there is such an usual exception to the Trined-necessity of Military Expedition Castle or Burgbote and Bricqbote for here also as with the Romans they were especially Pontifices
call it and the Barons of Wars Or the time of the great Charter For since that time the Rolls and Printed Acts are every where much larger and much better than my little reading or my leasure can present them Two words have sound of horror to the People who are taught to think them both oppressions and the sins of him they call the Conqueror Dane-geld and the Book of Dooms-day Some have added Curfeu with I know not what to make poor Children quake These have been proved to be long before the Normans coming in To that of Dane-geld I may add that good King Edward did also retain it to his Coffers when the Danish Storm was over till he saw the Devil dance upon it As the Crouland Abbot doth Record But it did rise from one to three to four to six shillings on the Hide but so by Parliament as may be much collected from the 11th Chap. of King Edwards Laws compared with Florence of Worcester Hoveden Huntingdon Math. Paris and Math. of Westminster besides some others which we must produce e're long And to say nothing of eleemosyne pro Aratris of which Canute and Ethelred it is clear in King Ethelstanes Laws that single Hides or Ploughlands in England were to maintain two Horsemen with Arms by Act of Parliament And this was more it seems than ever was King Williams Hydage or Dane-geld Which may be added to King Ethelstanes Militia as also his Doom book for all Judgments in one Form of which his Laws speak to what is said of Booca Doom But to King Williams Doomsday I shall now add to what before that besides the Mirror and Fitz-Herberts N. B. with the old Abbot of Crouland There is enough in every segment of that Roll to make one know it was a Review and little but a Review of what was done before They do abuse us else that bid us read the T. E. R. in all that Roll Tempore Edwardi Regis plain enough sometimes without all Divination That it was also confirmed by Parliament may be clear enough from the many exemptions a servitio Regis and a Vice-comit Nay to some inferiour places as Ely and Worcester Besides old Crowland which was not exempted from such service till the latter Saxon or first Normans time though Ingulph spake of divers Ethelreds But the same Abbot will tell us that this Doom Book was now also made juxta Taxatorum fidem qui Electi de qualibet Patria c. And that his Taxors were both kind and merciful non ad verum pretium nec ad verum spatium c. So preventing future Burthens and Exactions Talem Rotulum multum similem ediderat quondam Rex Alfredus c. But Alfreds own Will seemeth to carry it higher Nor was Ingulph's favour at the Court altogether useless for by that we come to know that our Norman King even in little things proceeded by a Great Councel So that our Abbots Charters must be viewed by Parliment Coram Domino meo Rege ac universo Concilio c. Thence he brought St. Edward's Laws as was observed before Huntingdon and Matthew Paris with Matthew of Westminster spake of his Hydage and Dooms-day as done with great Advice and Justice Misit Iusticiarios per unamquamque scyram inquirere fecit per jusjurandum quot Hydae i. e. jugera uni Aratro sufficientia per annum essent in unaquaque c. Nor are they wholy silent of his Parliaments Cum de more tenuisset curiam suam in Natali ad Gloucestriam and again at Winchester the like at London in another season Tilburiensis telleth us that Mony was paid to the Crown by Cities and Castles that used no Tillage But from the Land or Farms only Victuals till Henry the first And when the Kings foreign Wars did make him press for ready Mony the people murmured offering their Plowshares Horum igitur Querelis inclinatus Rex by advice of his Great council definito magnatum Concilio he sent out discreet prudent men that upon view of all the Lands should assesse the sums which the Sheriffs were to pay into the Exchequer This Gervase lived a while after King William Florence of Worcester near his Reign he telleth us of a Great Councel at Winchester And again of another at a place called Pedred not only by the King Arch-Bishops Bishops Earls but also primatibus totius Angliae a full Parliament for which Florilegius and Walsingham Newstria may be considered with Hoveden following Wigornens That in his Reign there was an High Constable of England ceasing in Henry the Eight appeareth by the Parliament Rolls of Edward the Fourth but Alfigar in the Book of Ely was such in St. Edwards time and to Him some ascribe the Constable of Dover with the Warden and Priviledge of the Cinque Ports with their Hamlets or Circuit including Rye and Winchelsey But all this speaketh Parliament as doth also his New Church Priviledge Communi Concilio Archiep. Episcop Abbat omnium Principum Regni mei Yet to be seen not only at Sir Robert Cottons Jewel House but among the Rolls with King Richards Charters for the Dean and Chapter of Lincoln This exemption of the Church from Seculars c. is the more considerable because it came up with the Norman King at the time of Hildebrand whose Letters missive came hither ad Willielmi Regis Concilium And that this Councel was a full Parliament appeareth by the Charters as I may call them of the Arch-Bishop of York ex praecepto Papae Gregorii 7. and Confirmatione Domini Willielmi Regis sub Testimonio Universalis Anglorum Concilii c. Of which Roger Hoveden is clear telling us also that this King summoned the Arch Bishops Bishops Abbots Counts Barons Vice Comit. cum suis Militibus were these Knights of Shires To this I may add from the Continuer of the Saxon Chronology that Lanfranc came hither from Caen on the Kings call and the Popes Command primatum Regni Anglorum in Ecclesia Cant. suscepit eligentibus eum Senioribus cum Episcopis principibus clero Populo Angliae in curia Regis a very clear and full Parliament Nor may I so wrong our Common Law as to detain that antient Record which the great Judg in his Reports citeth of a Writ of Right brought by this Lanfranc against Odo Bishop of Bajeux and removed by a Toll into the County Court where the King commanded all the good Lawyers to attend the County a toto Comitatu Recordatum atque judicatum est That as the King held his Lands in His Demesn in Dominio suo so was the Arch Bishop to hold his omnino liberas quietas in Dominiquo suo which Judgment was afterward confirmed by the King and Parliament cum consensu omnium principum suorum With which Record I may compare the old Manuscrips in Bennets Coll. Cambridge telling us of a great Moot magnum placitum in loco qui dicitur Pinenden in
his Priviledges was to be free from the Justies of either Bench and of Assize Which is one of the first Records for the antient Benches But it may not be impossible to trace them thorow some Elder times For the Saxon Law so often repeated and confirmed that none should complain to the King but want of Right or against summum jus at Home might in modern Language be translated Thus. The Writ of Right must abide the Baron or Bayliffe For it cannot fall to a Copyhold Steward except the Lords default or consent or the Tenants suit procure a Tolt to lift it up to the County Court Or a Pone place it in the Common Pleas. That such a course was antient may be gathered from the Mirror Asser and others of Alfred Edgar Canute Ethelred and of the Tolt before in King William To which I may add the Writ of Right in the third Book of Reports brought by I. de Beverlace against Walter of Fridastern and by a Tolt removed from the Court Baron to the County and for default of the Baron how it must be falsified we may touch anon it was concluded before Ranulph de Glanvil Sheriff of Yorkshire Glanvil is clear enough for the course of removing to higher Courts and of the Writ de Pace stepping between the Combat on the Writ of Right and Assize Coram justitiis in Banco sedentibus and although this Book intituled Glanvil was not written till about Henry the 2d yet it is plain enough that he speaketh of Antient Custom His words are very considerable The grand Assize saith he is a Royal benefit granted by the Parliament Clementia principis de Concilio procerum populis indultum as being that which saved blood and did oft prevent the Combat on the Writ of Right and of this he speaketh in the third of the same Book as of a very old and antient Custom Secundum jus consuetudinem Regni antiquam A weighty expression from so antient an Author which may possibly lead us higher than the Saxon times For we may find the Duel or Combat among the Gaules from British Druides as among the Germans also whence our Fathers came Nonnunquam etiam armis de principatu contendunt So of the Gauls or British Druids He that was like to know it and of those and Germans Tacitus and Diodorus Siculus before Aventinus Some observe it in the Salique Law and among the Laws of Charlemaign and that the Longobards did bring it into Italy where it was also setled by Law But of our Ancestors combats in another place I know not any Fines upon Record till Richard the First But Stowels Case in Plowden may inform us that they were before the Norman And we need not doubt the Books of Edward the third speaking of Benches settled in Henry the first but I do not remember the phrase of Capitalis Iusticiarius noster till great Charter which repeateth elder Customs Goodwin the famous Earl of Kent among the Saxons had two Sons that in as good an Author as Huntington are stiled Regni Iusticiariis the phrase is common in Hoveden and others of the times of Clarendon Assizes And K. Edgar had a Cosin Ailwin who was totius Angliae Aldermannus which is supposed Lord Chief Iustice by a Learned man besides the best though yet imperfect Glossary But it might denote the Lord High Constable Of which before in William the first And William the 2d found great Odo of Baieux setled L. Ch. Justice of England Iusticiarius totius Angliae So Matth. of Westminster and Huntingdon calleth him Iusticiarius and Princeps and Moderator totius Angliae in Wigornensis He is Custos Angliae And the phrase of Iusticiarius is also in Matth. Paris of William the first Iusticiarii in Banco Regio of after times as also placita de Nova disseissena before Justices in Eyre But he speaketh of placita lethifera the Pleas of Life and Death yea even in Bishops Courts about the Normans coming in But in Polydore we find out 4 Terms with divers other elder Customes ascribed to the first Norman But that which he addeth of the place for these Courts to be at the Kings appointment might be true till the Law fixed the Pleas which may be long before our Charter of Henry 3d. where it is confirmed not created But for the Kings Bench the Return was coram Nobis ubicunque c. and for the Pleas coram Iusticiariis nostris apud Westmon That which Virgil addeth of the Iudges in Westminster and of those higher beyond appeal and of Iustices of Peace setled by the Conqueror as he saith Sheriffs were in every County may be more considered For it may be as much too late as some have thought it too early They which presume to make K. Henries Cubit the first Standard of Winchester must refute the old Saxon Laws of which before For those may seem to deserve as much credit as Malmsbury other marks That he did confirm the Curtesie d' Angletterre I may yeild to the Mirror and other Authors but not that he first began it For the Statute of Kentish Customs and those that treat of Gavel-kind may shew us an Older Tenure by Curtesie there also where the Tenant had no Issue And this may teach us whence the like Custom came into Ireland as also to be Curialitas Scotiae which our master seemeth to forget when he saith Que ne'st use en auter Realm forsque tant solement en Engleterre But his Commentator he lyeth in this and in divers other things In case Entails this English Curtesie is very remarkable in which the Book of Cases have great diversity But those that perswade us there was no Land in Tayles before the 2d of Westminster in King Edward the first which are all that subscribe to Littleton must interpret the Laws of King Alfred much otherwise than I can do For the 37th Chap. of his Laws is to me much clearer for Lands Entail'd then is all the Statute de Donis Conditionalibus One Case of the Courtesie may be considered for the Militia If Land in Capite descend to a Woman who upon Office found intrudeth on the King and taketh an Husband and by him hath Issue and then dieth yet cannot the King eject or detain the man but he shall be Tenant by the Kingdoms Curtesie although he came in upon Intrusion Which seemeth to hint that Our Law did chiefly intend the Kingdoms good defence and service which might be performed by such an intruder rather than the Kings pleasure or his bare Prerogative in this which is thought so great a Prerogative of Tenure in Capite For which the Comments on Magna Charta and the Statute of Prerogative with Littletons Dower and Curtesie are clear enough To Henry the first they also ascribe the Curtesie of saving the wreck from his Exchequer if there were so much as a Cat or a breathing Creature let in the Ship I do not deny him to be
K. William as I should before upon the Oaths of chosen men from every County sworn as strictly as I remember any to have ever been with additions also of some emendations added by King William ad Utilitatem Anglorum These Laws he saith were compiled or conditae by the said great Glanvil who in Henry the 2d he stileth summum Iusticiarium totius Angliae And for this Kings confirmation of the good Laws of H. the first we need no more than what we find in him and all other Historians of the grand contest upon that occasion between the King Becket Son to a Saracen or Syrian Woman yet a Citizen of London and his Fathers Name was Gilbert Favourite at first he was to Theobald of whom before by him commended so that he became Lord Chancellor But at his Patrons Death being chosen to succeed in Canterbury he resignneth up the Seal at taking orders and in this both Wendover and Matthew Paris add to Hoveden who in Becket is the largest Polydore agreeth that his former perferment was to be Arch-Deacon to that Sea to which he makes the Office of a Legate to be then entailed ever since Lord Theobald did fetch his Pall from Rome But the great quarrel was about the confirmation of K. Hen. Laws of which before They touched all the Clergy So that once reading of them was enough to make the Pope condemn and Ban them all In a great Councel or Parliament the King did ask they say petitioned the Church that all would agree to keep the Laws of his Grandfather Henry the first Becket with some reluctance did consent without his Salvo But again repents in Parliament at Clarendon 't is clear as well for Commons as for others Congregato Clero Populo Regni apud Clarendun And again the Lords beseech the Prelate that he would vouchsafe to come and say before the King and Commons coram populo diceret that he would receive and admit those Laws He doth consent and comes into the House and frames his lips into a Content the King is glad and bids the Lords retire and bring those Laws from the Records that all might be perused and agreed Somewhat more he meant for when the Lords returned with those Rolls the motion was that all should set their hands or Seals in witness of agreement But at this The Prelate startles and recoyles again and riseth high or foul in Language So withdraws in greatest discontent Ere long we find him out again at least he would be out For now he sueth for a Pass to France he meant the Pope I must not here omit the course the King did take to stop him One there was that did complain he had been long in suit in some inferior Court of Becket yet he could not get his right and therefore was at length enforced to some other course and Court. For which his way was first to falsifie the Prelates Court by Oath according to the Custom of the Kingdom and of that we spake before in Writs of Right and Tolts or Pone's to remove them to some higher Court. This seemed but a petty Case that happen'd every day so that the usual Writ hath such a clause that if the Baron did not then the Sheriff should And if the Sheriff failed in the County Court then Bench must help But this was now enough to give a pause and check to that great Prelate He must stay and plead it out at length he finds the formal Oath to falsifie his Court was made upon Paper or a Service Book whereas the Law required that the Oath should be upon the Holy Gospels This would not suffice but Parliament at least the Barons and the Tenants en Chief were such did put the Prelate into Misericordia He doth struggle and attempt a Writ of Errour or the like Iudicium illud falsificare but he must submit and is amerced at 500 l. he cannot bear it fulleth 〈◊〉 but soon receives another summons For he shall have load enough and now must give account of all his former Bailywick He seeks delay and would be Essoyned de Malo lecti and instead of Knights two Earles are sent to view him whom they find in Bed but give him respite only till the morrow This bringeth a Case of Law to mind Essoyned of sickness cannot Rise without a License If the Knights that come to view him find him not or out of Bed it is default Of which in Bracton Fleta Hengham And his Learned Commentator addeth a pretty Case in Rich. the First The Abbot of Crowland sueth the Prior of Spalding for entring upon his Marsh. The Prior Pleads he entred as upon his own Ese-simple and doth offer 40 Marks for grand Assise and so the Mise is joyned and the Right doth lie at stake The Abbot is Essoyn'd de malolecti and the Writ goes but to the Knights But while one was coming to view him he doth rise and cometh towards the Court so the Knights Certificate is The Abbot was not in Bed On long debate the judgement was that upon default the Abbot yet in Possession must submit to yeild the seisin to the Prior whom he sued See the Statute of Marlbridge and the 2d of Westminster cap. 17. But Becket had Law enough to make him Rise and come to the Court in fear and discontent but his Right hand is so fastned to his Cross that it could hardly be forced from him who did struggle for it But his sorest pressure is an heavy Action of Account for all he had received as Lord Chancellor He pleads Discharge And that at his Election Henry Son to him that had such interest in the Kingdom cui Regnum adjuratum fuit and all the Barons of the Exchequer and Richard de Lucy Iusticiarius Angliae did declare him free quietum Deo Ecclesiae ab omni exactione seculari c. But his conclusion Ideo amplius Nolo inde placitare cost him dear For when the King had this he knew his way and said to the Parliament or Baronibus suit do me speedy Justice on this man Cito facite mihi Iudicium de illo qui Homo meus ligeus est stare Iuri in Curia mea recusat So they did retire and being alone without the King exeuntes Iudicaverunt And they did adjudge him to Prison But he escaped before his Commitment although some that saw him going cryed Traytor stay and take thy Doom By stealth he got to Sandwich thence to France by Flanders where he found the Pope I do not know that he talked much of refusing to make his account But his grand complaint was that he was pressed to consent to such injurious Laws as those which he brought to the Pope of King Henry the First Which were soon damned notwithstanding our Kings Embassadors But Writs were sent abroad to the Sheriffs and Iustices for seizing all belonging to the Arch-Bishop for attaching Arms that did appeal to Rome or
see and proceed in a judicial way Nor would he condemn or execute before he had not onely cleared his justice in himself or to his Angels but also to Abraham Lot and other Lookers on that he still might be justified both when he judgeth and is judged For he still did and will put his Actions on Man's Judgment This Process also towards Sodom is by many of our old Lawyers brought for the Pattern of our Laws in that especially that none may be condemned without a Legal Hearing And in this and divers other things do Bracton and Fleta borrow much from the Laws of Henry the First And be the Matter of Fact never so notorious yet may there be some Plea that no man can foresee or ought to forejudge before he heareth for all men may plead necessity or force upon themselves as well as Right and Law for any thing they do amiss And for this and other Reasons the Law doth suppose all men to be just or excusable till they be Legally heard and adjudged This Difference there is between the Judges and the Law-makers For these they say do suppose all men to be evil but the Judges should suppose all men to be good till they be proved to be evil The Charge and Accusation by the Law of Nature ought to be clear distinct and particular with time and place or other Circumstances else the Party accused cannot discharge himself Universalia non premunt omnino vel opprimunt Generals do not press at all or else they are apt to oppress The Witness and the Evidence must also be so clear that these must condemn rather than the Judge who sitteth as Counsel for the Party accused that so he be not oppressed by or against Law And besides the Judges in most Cases and in those also of Life in Scotland there is Counsel allowed by Law which may and ought to be heard in Particulars of Law or whatever may be justly disputable as Treason is by Statute So that of all Crimes by express Acts of Parliament it ought to have no Tryal but clear and plain according to the course and custom of the Common Law In such Cases therefore should the Iudges both in Law and Conscience sit and be instead of Counsel to the Party This they owe to every Subject though they had a special Obligation to the King Who to his own Rights and therefore to his Wrongs was an Infant in Law and so expresly declared in the Old Mirror besides other Books His Politick Capacity never but his Person ever in Nonage or supposed so in Law for it may be a Child or a Woman not able to know the Laws and therefore always had by Law a Legal Mouth assigned in Counsel of Law And so might any man else of old it seems for matter of Demurrers before Judgment or for framing of Legal Appeal by Writ of Error or some other way from any Judgment whatsoever It is also the Law of this Kingdom and of Nature that though there be no Councel assigned yet may any in a good manner move the Court to keep the Party from Injustice or the Court from Error as Stanford and the 3d. part of Institutes Cap. 2.63 and 101. And in such Cases it may be excused and not censured for rash zeal if some do or shall appear where or when it may be thought they be not called Neither can the whole Parliament of England I suppose make any Court to condemn without lawful Accusers or lawful Witnesses which by express Acts of Parliament is most especially provided in Case of Treason in King Edward the Sixth and Queen Maries Reign and Tryal of Treason was most expresly tyed to the course and custom of the Common Law Nay in full Parliament of Hen. the VIII it was declared that Attaint of Treason in or by Parliament was of no more force or strength than it was or ought to be by the Common Law or this as good and strong as that by Parliament Nor can the whole Parliament I think by the Law of Nature and right Reason make any Children Ideots or all others whatsoever to be so much as Accusers or Witnesses that I say not Indictors Tryers or Judges By express Acts of Parliament in Philip and Mary Edw. VI. Hen. VIII Hen. IV. Hen. I. for to him doth the Mirror and his Laws lead us as to a clear Crystal Fountain of our Law Process none should suffer for Treason or other Crime but by lawful Accusers lawful Witnesses before those that by Law might receive Indictments which with all Enquest are to be made by honest lawful able men Neighbours to the Fact And the Law of Nature with the Law of the Kingdom giveth any man leave to except against some for Accusers others for Witnesses and many for Tryers It being the known Law of the Land that one may challenge the Array either the principal Pannel or the Tales as well as the Polls and that the lowest Subject must be admitted if he require it to a perremtory challenge of divers it is now in most Capitals limited to 20. but in Treason it is as at Common Law it was to 3 Juries or 35 which may be challenged without any particular reason And the Law of Nature also seemeth to hear all Reasons and just exceptions against any whatsoever Nor shall I need to shew how sutable our Law is to the Law of Nature in providing that no Infant Ideot Alien Abjured Perjured or Attaint Outlaw'd or in Premunire be of any Enquest or Iury especially in Case of Life and Death And for Tryers besides all other exceptions This was thought enough that any of them had been Indictors which maketh Fortescu so much to Glory in our Law that putteth no man to Death but by the Oath of four and twenty men I should mispend my time to shew it to be the great Law of the Kingdom as well as of Nature that none may be Iudg and Parties in their own Cause which may ere-long be found perhaps to be the reason of the Three Estates and very much of our Common Law which is punctual in nothing more than in providing for a clear distinction of Accusers Witnesses Endictors Tryers and Iudges especially in Cases of Treason which upon divers motions of the Commons in Parliament have been so often Enacted and declared to be onely Tryable by the course and custom of the Common Law and no otherwise Nay in Parliament it self and Parliament Men there was and for ought I find always the like course observed For in Case of a Peer the Custom of the Kingdom is to proceed by a special Commission to one as Lord Steward and 12 others at least for a Iury of Tryors besides Accusers and Witnesses and a formal Indictment And all from Record to Record or all this is Illegal if it be onely by the House of Peers If Charge come from the House of Commons they are as Indictors being more than twelve sworn
suites for them but not to sit as Judges For as the Commentator addeth they could not depute or make Attornies in a place and act judicial I will not I cannot say the Commons of England cannot choose or constitute their Judges but this I say or believe their delegates ought to be exceeding Curious I had almost said exceeding Scrupulous in making Judges and in bounding them to law and Justice both in way as well as End I must again repeat it That it may not seem enough to settle Judges just and wise and good Nor only to provide that they may do what is just I speak of end but men are men and ought in cases of such consequence to have their Way their Rule and Square by which they must proceed to be prescribed in their Patents or Commissions that they may do justly too as well as what is just To me it seemeth to be reason or the law of nature unto men that the Supreme Court should so limit all inferiours that it may not be left at large to their list or pleasure to condemn or sentence without Hearing Accusation Witness or without such Process and Tryal as shall be clear and plain and so prescribed in the Patent or Commission If it be not so done and expressed I know not what appeal can be but from the Court before Judgment For what appeal what writ of Error or what Plea can a man frame upon their Judgment who have no Rule no way of process prescribed and so cannot Err Transgress or Exceed their commission no not if they should without all accusation proof or witnesses condemn one to be sliced and fryed with exquisite tortures They are Judges but unlimited in way of Process infinite and purely Arbitrary No they are Men and so they must be Rational and Iust which was presupposed by them that gave so vast power They may be Iust indeed and so they should but yet no thanks for this to their Commission if it do not bound and limit out their way and manner of Process as it doth their work and Object or their End which was the wont of English Parliaments who were Just and wise themselves that they did see or fear it might be possible for their Committees to be most Unjust and Arbitrary if they were not most exactly limited Of all Commissions none were more curiously drawn and Pointed out by our Ancestors than those of especial Oyer and Terminer because the cases were not only heinous so they ought to be but such as for some extr ordinary cause emergent seemed to be as it were Extra Iudicial and such as could not stay and abide the usual process of the settled Courts of Justice Yet of these also did our Fathers take most especial care that they might be Iust in Way as well as End and that they might not be too High in Iustice for it seems that they had also learned an usual saying of the Antients Summum jus est injuria So that in divers of the Saxons Laws we find High Iustice Summum Ius to be as much forbidden as Injustice And I should tremble at it as an ill Omen to hear Authority commanded the the Kings Bench or any other Court should be now Stiled the Bench of High-Iustice For in Iustice the higher men goe up the worse or so at least it was esteemed by our Ancestors Their constant limitation was in every such Commission Thus and thus you shall proceed but still according to the Laws and Customs of England Secundum Legem Consuetudinem Angliae and no otherwise that is as Fortescu will say you shall be pittiful in Iustice and more merciful then all the world besides this Kingdom And if such a limitation were not expressed this was enough to prove the Commission Unjust and Illegal which is so well known to all Lawyers that I need not cite N. B. or the Register Commissions or Scrogs's case in Dyer or so many elder cases in Edward the 3 d. Henry the 4 th and almost all Kings Reigns Nay in King Iames among the great debates of Uniting Scotland to England when it was driven up so close that instead of Secundum Legem Consuetudinem Angliae it might be Secundum Legem Consuetudinem Brittanniae It was resolved by all Judges that there could not be that little change but of one word that doth so limit such Commissions but by consent of Parliament of both Kingdoms And in divers Parliaments of Ed. 1. Ed. 3. Hen. 4 th there were many Statutes made to limit all Commissions of Oyer and Terminer as that they must never be granted but before and to some of the Iudges of the Benches or of the Grand Eyre Nor those to be named by Parties but by the Court And with this usual Restriction according to the known clause of the Statute of Westminster the 2 d. in the Reign of Edward the 1 st But the Printed Statute must be compared with the Roll and with the 2 d of Ed. the 3 d. for else there may be in this as in other Printed Acts a great mistake by leaving out or changing one particle for that Clause except it be for heinous offence hath such influence into all the words before that by the known Common Law a Supersedeas doth lye to such Commissions quia non enormis Transgressio as the Register may teach us And although by Law there may be granted a Commission of Association with a Writ of Admittance of others to the Iudges assigned for Oyer and Terminer yet in all those Commissions and Writs the Rule must be prescribed quod ad Iustitiam pertinet and that also according to the Law and Custom of the Kingdom which is so much the Law of Nature that I need not wonder at the great Judg who in all his Institutes and so many Reports maketh those words absolutely necessary to the work of a Lawful Commission And for more prevention or Redress of injustice and Arbitrary Process were our Ancestors so punctual in requiring Records of all Proceedings in the Courts of Justice which is so agreable to Reason and the Law of Nature That the whole Parliament of England as I humbly conceive cannot it self proceed in matters of highest concernment but by Record Much less can it Licence other Courts to be without or above Record in such Affairs It is so well known to be the custom of the Kingdom that I shall not need to shew it in the Statute of York in Edw. 2d and many others in affirmance of the great Charter nisi per Legem Terrae But by the Law of the Land And in Edw. 3d. it was in full Parliament declared to be the Law of the Land that none should be put to answer but upon presentment before Iustices or matter of Record And the 2d of Westminster is very punctual in requiring Records for all legal exceptions as well as other matters and provideth that in case an Exception should not
RIGHTS of the KINGDOM OR CUSTOMS Of our ANCESTORS Touching The Duty Power Election or Succession Of our KINGS AND PARLIAMENTS OUR True Liberty due Allegiance three Estates their Legislative Power Original Judicial and Executive with the MILITIA Freely discussed through The British Saxon Norman Laws and Histories WITH An occasional Discourse of GREAT CHANGES yet expected in the World LONDON Printed for I. Kidgell 1682. THE PREFACE TO THE READER READER IF you be wise and good you are above my Epithets and more above my Platteries But yet you may expect a Preface to excuse this unexpected Address The habit is somewhat strange and my self so little acquainted with it that I cannot much wonder if others should gaze upon it but account me a Stranger and you will forgive me It is no matter who but what is here presented to your view I cannot excuse it either for matter or manner It hath much folly to my sight and more I believe than yet I see It may be also somewhat false although I know it not This should not prejudice all for there are Spots above the Clouds and the Kingdom of Heaven it self was like a Field of Wheat with many Tares How much more how much worse must it be with a frail man But why then do I venture to come abroad The Objection was strong enough to keep me silent hitherto and it may be nothing but Duty should have perswaded or prevailed on me to be publick now and yet I do not plead an extraordinary Call which is a close Writ and not a Patent Those who receive and act by such a Warrant should be sure they know the Hand or Seal or Dialect of Heaven But I am an English-man and therefore am obliged to this Country and to these Laws that made me free And this may be some Call that I say nothing of particular Obligations to the State in any Courts of Justice or relation to the highest Court of Parliament And why may not I believe my self as free to think or speak or write as others are to do There is a Night of silence and an evil Day when every prudent man shall hold his peace but also there is a time to speak and a word in season fitly placed like an Apple of gold in a Picture of silver But who knoweth his season for our time is hidden and because man knoweth it not therefore is his labour increased under the Sun This also is vanity and a fore vexation I said there are older and wiser and better than I they shall speak and teach me Wifdom I will hear in silence Nor do I now say They convinced him not lest it should be said We have found out Wisdom God thrasteth him down and not man Nay they have spoken much and little may be left for me but to repeat somewhat already said Be it so then by this I shall be free for if I speak their words I may be pardoned as those that spake before And if I adde a new word shall I be made an Offender for a word However my hope is that the Great Day of Judgment of which we have long heard and now seen so much before us will have such influence upon our Judgement and Affections that we shall all be ready to judge our selves rather than others or if others not with prejudice And with this assurance or with this confidence I now presume upon your goodness knowing well that if you find but one so much as one Cluster you will spare it and be pitiful there may be a Blessing in it RIGHTS OF The Kingdom c. TO see the Kingdoms Rights the Laws and Customs of our Ancestors concerning King and Parliament that we may know their Power and Priviledge their Duty and their Limits c. and how our Fathers did commit the power of making Laws and judging by those Laws and how they made us swear Allegiance to our King what power they gave him over us and what they did not give him over any of his Subjects how we should behave our selves c. He that accounteth these unworthy of enquiry may be thought as the Gretians said to the Persians not to have heard of Liberty Which else would be valued above an Enquiry But alas who is able who will undertake to trace our Laws and Customs thorough the Heights and Depths and dark Abysses and Meanders of the British Saxon and the Norman Nations that have ruled here Yet there are thousands that may do it much better than I and therefore I might justly sit in silence and expect my Antients and my Betters should begin that I might learn from them Nor should I now presume to speak but that I might inform my self from others that by this occasion may reform my Errours and may cleaâ— our Laws and Customs much more fully than I do or can be able who pretend to nothing but desire of Truth and Peace And first to speak of the mutual obligations of Oaths between Prince and People the School-men would be thought most curious or most tender in the point of Oaths They mince them out so fine that a whole million of Oaths may stand as they speak of Angels on the point of a sharp Needle They tell us of the Object and the Subject or the Matter which they say may cease or fail so much that any man may find or make himself absolved from his Oaths But in things of such concernment to ones Soul I love to speak or think in English that I may understand my self and I thought it madness in the man that said his Prayers in two or three Languages adding this in the close Now take thy choice for all are alike to me I know not my meaning in either In plain English I do not see I may absolve my self from an Oath by saying He was not the man I took him to be in some material points at the time of my Oath yet this is much and that which seemeth near to that which the Schools speak of want of Subject or sufficient Matter to be ground of such an Oath I should have looked to that before it may be rash and so must be repented but a River of Tears may never wash me from this Oath of God as the case may stand And so it was I suppose in that of the Gibeonites they were not such as they made themselves nor such as Israel took them for the Oath was rash unjust they ought not to have sworn they should have stayed and sought direction for they were forbidden Leagues with such commanded to destroy and ruine such as those men were and might have been suspected But when it was done we see how strict and solemn God was still in pressing them to keep that Oath Nor may it suffice to say I swear against my will they had advantage of me and I could not but comply either with some Mental Reservation or at least for that is much condem'd by most
solummodo publica so Glanvil but in Bracton Fama apud graves bonos and in Fleta apud bonos graves infamia yet must the Party be Attached vel per Carceris Inclusionem vel per Plegios idoneos so it was in Glanvils time for all but Homicide but in Fleta's Diffamatus vel Accusatus attachiabitur per Corpus Captus Remanebit donec se indè Legitimè acquietaverit That is in him till he have Legally cleared himself from all Seducement of the King Kingdom or Kingdoms Army Omnemque seductionem Regis Regni vel sui exercitus quicquid sit contra Pacem suam which Glanvil expresseth thus Machinatum fuisse vel aliquid fecisse in mortem Regis vel seditionem Regni vel Exercitus vel Consensisse vel Consilium dedisse vel Authoritatem praestitisse In such Cases also they debate who should be Iudge and for this they all agree in that fundamental Principle of right Reason and Nature that Parties may never be Iudges in their own Causes for which besides all others the Mirror is large and clear among all Exceptions to the Iudges Person if he have no Commission or refuse to shew it as he ought or be Party c. of which also Britton in Appeals cap. 22. fol. 41. And for this reason Bracton and Fleta with others agree that in such Causes neither the King who might so they say be Iudex Actor nor the Kings Commissioners should Judge or determine But Curia Pares except only when the Case is not of Life but finable for in such the Kings Commissioners may determine sine Paribus But who are these Peers and what is this Court One of Bractons first Maxims in his second Chap. is that all obscure difficult and new Judgments ought to be suspended Usque ad magnam Curiam ibi per Consilium Curiae terminentur Fleta is somewhat clearer in his second Book and second Chap. Habet enim Rex curiam suam in Concilio suo in Parliamentis suis presentibus Prelatis Com. Baron Proceribus aliis viris Peritis ubi terminatae sunt Dubitationes Iudiciorum Novis injuriis emersis Nova constituuntur Remedia unicuique Iustitia prout meruit Retribuetur Ibidem Unicuique What to every Man in all the Kingdom or how far and how high may this extend or reach Shall we propound this Doubt to the Antient Parliaments who were most like to know their Power and Priviledge The Law was clear enough before but some were pleased not to think it so and therefore in the Statutes of Marlbridge as old as Henry the third in the first place of all it was agreed and enacted That all men Living of this Kingdom as vvell high as lovv tam Majores quam Minores must and ought submit to Judgment Iustitiam habeant Recipiant in Curia Domini Regis That this Expression may go lovver than the Court of Parliament I can not deny nor vvill others I suppose deny but that it may and must be yielded to the highest Court of all One of the Clauses of the Kings duty expressed in the Saxon Lavvs is to do all things rightly by the Judgment of his great Court per Iudicium Procerum Regni and again by that great Council to maintain or do Justice and Judgment Iudicium Rectum Facere Iustitiam tenere per Concilium Procerum Regni All vvhich and much more in those Lavvs must be solemnly Svvorn by the King before the Kingdom and the Clergy in propria persona inspectis tactis Sacrosanctis Evangeliis c. coram Regno Sacerdote Clero This may be considered antequam ab Archiepiscopis Episcopis Regni Coronetur Even before he may he Crowned or should require his Subjects Homage Insomuch that vvhen the Subjects have tendered Homage as some Lords did to King Henry the fifth before the King had done his Homage and Sworn his Fealty to the State and Laws It hath been observed by Historians as some kind of Comet that I say not a Prodigy in State Politicks And besides all the forms of Coronation found in Hoveden Walsingham and other Historians secundum antiqua Statuta as Matthew Paris speaketh it is clear enough in the Records and Rolls of Richard the second before others how the King first did take that Solemn Oath and then the Archbishop went to every side of the Scaffold relating to the Kingdom how the King was Svvorn and then he asked them si ipsi consentire vellent if they would now give consent to take him for their King and Liege Lord and if so they came and did him Homage If they would consent What was it at their Choyce and were our English Kings Elective plain Elective sure it would be duely weighed and I confess some things have made me very much suspect they were Elective And the rather also by considering the great Care and Importunity of some Kings to procure the Crown to be setled by Parliament upon their Heirs Which might intimate that indeed it was not their Inheritance at Common Law for it was seldom seen I suppose that English Men have taken much Pains to obtain an Act of Parliament to settle their Inheritance on their own Heirs except they were Illegitimate or Aliens And upon search I cannot find the old Oaths of Allegiance did relate to the Kings Heirs or Successors either in the Saxon or first Norman times although we find the Oath in old Laws long before Edw. the second and in old Lawyers Bracton Britton Fleta with the Mirror punctual in the Oath of Allegiance but not a Syllable of Heirs or Successors that I can find Yet in the times of Henry the first and Henry the second there was some special Acts of Parliament for setling the Crown on Maud the Emperess or her Issue and King Henry's Son was Crowned in his Fathers Reign and of that time the Salvo in Glanvil Regi Haeredibus which I find not in any other old Lawyer and I believe it not usual till the great Quarrels of York and Lancaster it may be much Later But all such Acts for tying the Crown to such or such a Family do not evince a former Right of Succession any more than the House of Austria doth prove the Empire not to be Elective though it now seem as entailed on that Family I say not how often it hath been adjudged that Affirmative Statutes do not annul the Common Law and that one may Prescribe against a Statute Negative but in Affirmance of the Common Law for which the Comments on Littletons Burgage So that if an English King was Elective by the Common Law the Kingdom might prescribe against late Statutes which might erre much more than they could oblige all future Parliaments but they might still be free and most of all in what was due before by Common Law Let us discuss it then and see what Antient Lawyers and Historians do record about our Kings
their limitations by our Laws their Title by Succession or Election at the Common Law If Bracton or if Fleta may be Judges of this Question they will tell us that in their times our King was Elective Non a Regnando dicitur sed a Bene Regendo ad hoc Electus est And again ad haec autem Creatus Rex Electus ut Iustitiam faciat Universis Not only Created but Elected it is where they treat of Iudges and of Iurisdiction And of our Saxon Ancestors the Mirror is very plain that they did Elect or chuse their King from among themselves Eslierent de eux un Roy à reigner sir eux and being Elected they did so and so Limit him by Oath and Laws In this we might appeal to Tacitus of our Ancestors For theirs who did both Elect and Bound their Kings and Generals Reges ex Nobilitate Duces ex Virtute sumunt and of their King he saith the Power was so bounded that he could not call it Free Nec infinita aut libera Potestas and that in Conciliis Their Kings Authority was in perswasion rather than Command Suadendi potius quam jubendi potestate Caesar seemeth to conceive they had no King or fixed Common Governour in time of Peace but for War saith he they Choose out Generals qui Bello praesint ut vitae necisque habeant Potestatem In our Brittish Ancestors he found a King but by Election of a great Common-Council by whose consent he observeth that Cassivelane was chosen King and General against his Landing Summa Imperii Bellique administrandi communi Concilio permissa est Cassivellauno and again Nostro adventu permoti Britanni hunc toti bello imperioque praefecerant That the Brittans agreed much with the Gauls in their Customs I do not deny but I know not why this should make the Gauls to be the Elder Brothers as some teach us because our Britain is an Island Yet it may be much disputed if not proved that it once was joyned to Gaul or France in one Continent for which we might produce some of the old Poets and others before Twine and Verstegan However it is clear enough from Caesar and Pliny that the Gauls were much moulded by the Brittish Druids although they seemed more Polite in Iuvenal's time and afterwards being more Frank they afforded a Christian Queen to Ethelbert and the Model of a great School to Sigesbert which yet must not wrong Alcuinus who from hence moulded the University of Paris if we may Believe all that write of Charlemaign And if we add Strabo to those cited before we shall find they Chose both Generals and all great Magistrates When they had a King the Crown passed by Election and was so limited that Ambiotrix one of their Kings acknowledged Ut non minus in se Iuris Multitudo quà m ipse in Multitudinem So in Caesar. Their Common-Council much consisted of Equites and such perhaps our Knights of Shires Electi de plebe and Druydes their Clergy who did over-rule them all by their Banns and Sacred Oak Misleto as if it had grown in Dodona's Grove Their grand Corporation was dissolved by Roman Edicts in Gaul by Claudius as Seneca Suetonius but in Rome by Tiberius if not Augustus in Pliny but Vopiscus keepeth a Druydess to presage the Empire to Dioclesian when he had killed the Boar and Ammianus may afford them in Rome in Iulian or Constantius But in Scotland or Ireland they remained longer if we may believe their Annals of Columbanus and of William the Irish Abbot But in Dioclesian's time Amphibalus the famous Brittan fled from Rome to his Friend St. Alban who dyed for him in his Cloaths it is said but we find him Condemned by Law and styled Lord of Verulam Prince of Knights and Steward of Brittain in his Shrine and Iacob de Voragine ' Ere long we find him made a Bishop in the Holy Isle and there he did Succeed the Brittish Druyds and his Scholars were enow with their Blood and Carkasses to make the name of Litchfield But the turning of Druyds into our Bishops in Lucius's time is no more certain I think than that those were the Flamins or Arch Flamins of whom we hear so much of late but of old few or none relate it but only Monmouth The Name of Flamin came to Brittain from the Grecians or the Romans who had Druyds from the Brittans where they were most Sacred Priests at first but three but when every God and Godded Man or Daemon had his Flamin they became extreamly innumerable Yet the first three still kept their Distance Place and Seniority from whence the Phrase of Arch-Flamin which yet I dare not assert to have been in Brittain or to be so much as known in the time of Lucius or the name of Archbishop But of this Sir Henry Spelman of Lucius's Epistles in Gratian and Mr. Patrick Young on Clements Epistle to the Corinthians But Fenestella with his Names of Bishop Arch-Bishop Cardinal Patriarch Metropolitan c. is now come out with another Title of a later Age than he that lived in Tiberius But to return to our Brittish Druyds moulding the State and yet they would not speak of State but in or by a Common-Council as was touched before in the Militia and among these the same Caesar will tell us that there was a chief or President but chosen by Deserts and not by a blind way of Succession Si sint Pares plures suffragio adlegitur nonnunquam etiam armis de principatu contendunt Nor is it probable the Brittans should be great Patrons of Monarchical Succession which could hardly well consist with their Gavelkind which is not only in Kent but in divers other Places of England and in Wales from the Brittans as we may learn from Parliament in 27 Hen. 8. and in K. Edwards Statute of Wales with Littletons Parceners And his Commentator makes it one mark of the ancient Brittans and from them also to Ireland and from the Brittish Gavelkind do all the Children yet among us part their Fathers Arms of which also the great Judge on Littletons Villenage But on the Parceners he deriveth the Crowns descent to the Eldest from the Trojans to the Brittans so indeed do many others with Monmouth and Basingstock Yet our Best Herald the Learned Cambden will deride the Story of the Trojans coming hither but his many Arguments to prove the first Inhabitants to be a Kin to the Gauls do no more convince me that the Trojans might not come hither afterwards than that the Normans did not come because the Saxons were before them I repeat nothing from Gyraldus Cambrensis Matthew Paris Hoveden Huntingdon or others who derided Monmouth till they were convinced by some Brittish Writers which themselves found besides all the Greek and Latin Authors cited by Virunnius Leland Sir John Price and divers others that I say nothing of the Scottish Chronicles or of the Learned man that shewed King
of Almain The Learned Author of the late Peleg among divers other Brittish words hath found a new Etymology for the Name of Britain which notwithstanding Brith for Colour or Painting and Bretas in some Greek Poets for a Picture or a Painted Brat he would have to be called by the Phaenicians Berat Anac or the Field of Tin and Lead To which I may add the Northern Sea called of old the Phronean Ocean or the Sea of Saturn whom they feigned to lye asleep in the Bottom of that Sea bound by Iupiter in a Golden Pumice of which Plutarch Eusebius Ptolomy and divers others and of this the Author of the Veyl or Mask of Heaven Of which I must speak but little only this for a Clavis The Scene is the little World or Isle of Brittain Thule some appendant to that Crown or Scotland whose troubles of 1639. are shadowed in the night work called Scotos or Darkness Saturn the Scottish Genius and Mercury the Clergy but in special the late Arch-Bishop of Canterbury Iupiter the Son of Saturn or a great Scottish Lord lately on the Scene that was first sent to reconcile Saturn but he turned Retrograde Mars the Genius of War and in special the great General against Saturn or the Lord Lieutenant of Ireland Venus seemeth to be Queen Mother of France then alive in England Phoebus and Phoebe need no gloss Imperii fata plain enough to those that know that Dialect But Phoebe might have there seen before this Parliament that Peace had been her Work and should have been her Happiness nor is it yet too late or wholly past Habent etiam sua fata Reginae and there is a silent Patience which may Conquer more than all the World can get by Force Who will unmask the Chymical Part which the Poets also Veiled in their Fables of Saturn bound by Iupiter in Golden Pumice and it may be possible that future Ages may be brought to see or know the Treasures in our Chronian Ocean and the meaning of that Riddle In the mean time he that can improve the Sympathy of Mars and Venus or remove the Antipathy of Saturn and Mercury or can bind Saturn by Iupiter and by the Mediation of Phoebe can reconcile all to Phoebus or can live on Herbs may have little need I hope to flatter any But to return to our British Ancestors How Cordiel and Guintoline were Created populi Iussu Archigal Ennianus or others Deposed is observed by divers I shall only add that Proceres and Magnates here are rendred Estates People or Commons in Grafton and Chaucer or the old Fructus by Iulian of St. Albans Molmutius first did wear a Crown of Gold they say he did deserve it for to him we owe divers of our Common Law Principles nay and that for more than is found in Monmouth as I touched before And upon him the Patrons of Succession build a fixed Monarchy which was not such it seems before nor since if we may believe those we can hardly disprove that from this time begin the petty Princes plurimis Regulis supremam Mandandi Iudicandi Authoritatem And themselves divide the Crown between his two Sons Brennus the British Thunderbolt to Rome and some do carry him as Lightning to Delphos while his Brother Belin did return and dye in peace and first of British Kings was burnt to Ashes yet he lived here in Bilingsgate and Key besides his famous Ways or Streets his own and Fathers Laws which with the Mertian came to us through Alfred But we need not go to his Daughter Cambra for the first Affinity between the Brittans and Sicambrian Francks or Gaulish Germans Come we now to Cesar's time Lud is alive in Ludgate London as before he did amend the Laws but by a Common-Council And such Council did reject his Sons and Chose Cassivelane as Caesar doth agree with British Authors He did summon one that slew his Kinsman to appear and submit himself to Judgment Sententiam quam proceres Dictarent subire But the famous Androgeus protected him in London being then the Governour pleading the Custom and priviledge of that City which had also then a Court to hear and determine all the Pleas of Citizens or Quicquid aliquis in Homine suos clamaret and that also by Ancient Prescription ex Veterum traditione Which from Monmouth Virrunnius Ponticus and others may be compared with the Laws of the Confessor for Troinovant or London and its weekly Hustings and Ardua Compota and Ambigua placita Coronae and for the Courts of the whole Kingdom there whence it is called Caput Regni Legum Which may also be compared with that of the Mirror for Parliaments to be in London by ancient Laws which is here expressed Iuxta veteres Consuetudines bonorum Patrum Predecessorum omnium Principum Procerum Sapientum seniorum Regni very full and clear Parliaments of all Estates That which is added of those Courts to sit and hold wherever the King was is British also as well as Saxon. So the Laws of Howel Dha the Good in the Chronicles of Wales but larger in Sir Henry Spelman Ubicunque Sacerdos Destein Iudex ibi Dignitas Curiae Aula Regia licet Rex absens sit and this is one Reason why the King was never Nonsuit because he was supposed present in all Courts and yet his Atturneys Ulterius non vult had the effect of a Nonsuit But for London and its Antiquity before Rome Stephanides a Monk as old as K. Henry the first now in Print may be compared with Tacitus Ammianus Marcelinus nay with Caesar also for the Trinobantes although some think he never saw this City But the Charters of K. William and Hen. the first are in Print so also of Richard the first and K. Iohn in Hoveden and others which yet must not perswade us that Sheriffs were then first Created here For Counts or Viscounts are as old as Counties and the Brittish Authors speak of Dukes of Troynovant such was Androgeus and pro Consulibus vice-comites in Fitz-Stephen and Willielm de Einford vice-comes de London Ioannes Subvicecomes in the Book of Ramsey Wallbrook Case in Hen. the first that I may say nothing of William the Chamberlain de Londonia of whom before in Hen. 1. which may be premised to the Famous Quo Warranto brought in Edward the Second But to return to our British Kings I cannot deny but some Authors do Record the Crown as by Act of Parliament settled on the Heirs of Cassivelane but themselves also can shew us the very next King brought in by Election not from Cassivelane and that both of Lords and Commons too if we may believe Chaucer or the old Fructus Temporum This Theomantius many of their names are Greek was Duke of Cornwall when he was Elected King He doth yet live in a Famous Son great Arviragus whom the Roman Poet and so many others praise he did amend the Laws
but by consent of Parliament for all agree that a Senate was Elected or Dilected as they speak in his time not then first Created but it might be renewed after the Romans had so much interrupted it of which before from Tacitus so far am I still from believing our first Parliament did come from the Roman Senate It is a known History how that King Divorcing himself from his Scottish Queen and Marrying a Daughter of Claudius Caesar at Claudio Cestre was censured by his Parliament or Proceres so that he was fain to exhibit his Answer in Writing which is still left us in Fragments in divers places Amongst other passages he said he knew not but it might be lawful for him to have more Wives than one Eo quod Leges Britannorum illuc usque id nunquam prohibuissent because the Brittish Laws had not yet forbidden it I must not here dispute what moved Lucius to desire and send for the Roman Laws nay and that for the State also Nor can I yet Subscribe to them that think the Britains to be wholly Governed by Roman Laws from Claudius to Attila's time But could the British King send out for Forreign Laws or call them in without consent of Parliament it might not be and Eleutherius's Answer is in Print among the Confessors Laws and every where ad Petitionem Regis procerum Regni Britanniae Petistis à nobis Leges Romanes Caesaris his answer was You have the Scriptures and from them you shall do well to frame your Laws but by your Parliament per Consilium Regni vestri They which begin our British Christianity from Eleutherius seem not to consider his Epistle granting that the Britans were already Christians and had both the Old and New Testament Susceptis nuper Mis. D. in Regno Britanniae Legem Fidem Christi habetis penes vos in Regno utramque Paginam c. They were Christians long before Tempore summo Tiberii Caesaris as Gildas Badonicus and Albanius telleth how Philip the Apostle sent hither Ioseph of Arimathea out of Gaul see Baronius EMS Historia in Vaticano Melchin cited by Bale Capgrave of Arviragus and Malmsbury of the Famous Glassenbury which in old Charter by Parliament is said to be Founded by the Lords Disciples and is therefore Styled Fons Origo Religionis as Westsex is Caput Regni Legum in the Laws of Henry the first as London in St. Edwards Some have also brought St. Paul in Britain so Venantius Fortunatus Anno 570. from Theâ—doret perhaps who yet nameth not St. Paul but the Leather Cutter and the Publicans and Fishermen which may be St. Peter if we may believe the Greek Author cited by Mr. Patrick Young on Clemens or Sophronius and Nicephorus as Dorotheus Tyrius of Zelotes That I say nothing of the British Bard who from the Stars did tell the Birth of our Saviour in so many older than Bale But again to the Brittish Parliaments for so we read in the Laws of King Alfred out of British Trojan Grecian c. that in the very first times of Christian Religion in this Island Laws were made by a Common-Council of Bishops and other Wise Men with that of Bede Servabant Reges sacerdotes privati Optimates suum quique Ordinem After the Death of Lucius the Britains could not soon agree about the Choice of another King 't is every where ' ere long they chose Asclepiodat the Duke of Cornwall by consent of Commons also Communi assensu annuente Populo Troublesome he was to all the Romans but especially to Gallus who hath left his Name in Walbrook as the Gauls some think in Wales but for this Polydor Virgil and the Confessors Acts with the Laws of King Ina may be compared with Monmouth Virunnius Basingstoke Florilegus Gyraldus and some passages of Bede Coel e're long appeareth on the Scene but yet against Succession and he cannot dye so long as Helen liveth Mother to the Christian Emperor but Daughter to our Brittish Coel who was also Father unto Colchester We are come to times of more certainty when that deadly wound of one of the Heads had made the Roman Empire gasp as if it would Expire and breathe no more it had little list or leisure to command or Counsel any of the Toes or other Members at a Distance In this point of time the Britains Rose with other Nations and did soon recover most of that the Romans held by force their Laws and Customs now were free 't is yielded us by all but they could hardly turn and view their Liberty before they came to be new Slaves to the Picts and Scots ancient Appendants to the Brittish Crown in Fee The Roman Consul then in Gaul could not regard the Brittish Sighs and Tears which himself knew to be as just as pitiful for had the Romans not so gleaned Britain of its Glory for their Conquest of other Nations they had never asked help it seems against the Scots From the Romans they had first recourse to their Neighbour Gauls or to their Countrey-men in Gaul for such they were in that which to this day is called Brittany Upon what terms they had help from them I dispute not their King had as great a Name as the great Constantine but how himself or his Sons like the Brittish Reins we may guess in part from what we read in Gildas Tears for his poor Countrey where he complaineth that Kings were Elected and Anointed for nothing of God or of Good in them but only for their Force c. This is also found in another Author besides Gildas as old as King Stephen or Henry the Second which may the more perswade us that Monmouth had good Authority for what he Writes of those times for he also hath Gildas's words with very little variation By which we see the Law or at least the Custom of those times both for Electing Anointing Kings among our British Ancestors Two of those Kings may be Constantine and Constans who are said to be Slain by some of their Guard or Attendants yet so as divers intimate it came from a farther and an higher Hand Constans also came up to the Crown by a Faction rather than a free Choice as all relate who ascribe it to the Duke of Cornwall not without great Contests of divers Lords and with little consent of Commons vix Annuente Populo as we may read in divers Authors who are also plain enough to make us know that he was pulled down by the same Hands that set him up Vortiger came next but on Election it is agreed by all and that there were two Royal Princes Sons to the late and Brothers to the last King who must wait for the Crown with much Patience How he called in the Saxons by consent of Parliament I shewed before in the Militia and I might confirm it from divers others who do also Record that the King told the Saxons that he durst not without the
Bishops Abbots Dukes Senators Populo Terrae Lords and Commons It was Decreed and Enacted That Kings should be Elected by the Parliament à Sacerdotibus Senioribus Populi Eligantur and that being so Chosen they should have prudent Councellers fearing God Consiliarios Prudentes Deum Timentes and that Bastards de adulterio vel Incestu procreati should not be admitted to the Crown it is both in Sir Henry Spelman and in the Magdeburgens cent 8. cap. 9. pag. 583. c. Edit Basil 1567. Egbert by all is a fixed settled Monarch but without or against Right of Succession Ordinatur in Regem So Ethelwerd Omnium Consensu Rex Creatur in Polidor Ad Regnum Electus moxque imperare Iussus Patriae desideriis satisfecit as we read in the Monk of Malmsbury About this time the Mannor of Mallings in Sussex was settled on the Church of Canterbury by Act of Parliament Consentientibus Magnatibus It had been given before by one of the Kings but it was recovered again Eo quod Magnates noluere Donationem illam Ratam fore To what Sir Henry Spelman hath of 838 I shall only add that Matthew of Westminster doth afford us Princes Dukes Earls and Barons both in that and former Years besides Inferior Laios and Clergy whom he calleth Rectores Ecclesiarum and in Ingulph we find Principes Duces Comites Barones Comitatus and Baronias with Proceres Majores long before the Norman Ethelwolf a Monk a Deacon and a Bishop yet Elected King because they could not find a fitter person for the Crown Necessitate Cogente factus est Rex in Roger Hoveden Consensus Publicus in Regem Dari petiit in Bale At Rome he repaired the English Colledge lately Burnt but he displeased the Parliament by getting his Son Alfred to be Crowned by the Pope and by Marrying a Daughter of France whom without their Consent he styled Queen which was against the Common and the statute-Statute-Law contra Morem Statuta as we find in Florilegus to be compared with the Saxon Chronology and Asser Menevensis with Wigornensis and Malmsbury before Stow or Polidore But notwithstanding his Coronation by the Pope King Alfred did acknowledge his Kingdom to the Bounty of his Princes and Elders of his People Deus Principes cum Senioribus Populi misericorditer ac benignè dederunt as himself speaketh in his Will subjoyned to his Life by Menevensis wherein he also desireth to leave his People whom he calleth Noble West Saxons as free as mans Thoughts within him Ità Liberos sicut in Homine Cogitatio How far West Sex did then extend may be known in the Saxon Laws with those of St. Edward and Hen. the first where it is Styled Caput Regni Legum as London before to which all must have recourse in omni Dissidentia Contingentum Edward the Senior was his Son but Elected King by Parliament Successor Monarchiae Eadwerus à Primatis Electus my Auhor is old Ethelwerd King Ethestane a natural Son and so excluded from the Crown by Act of Parliament at Calcuth yet being a gallant Prince of great Hopes and Virtues he was Elected Electus magno Consensu Optimatum à Populo consalutatur ab Archiepiscopo more-Majorum Coronatur as we read in Malmsbury Huntingdon and Virgil. Yet there was a great Lord Elfred who opposed much and e're long Rebelled scorning to Submit to him Quem suo non diligisset Arbitrario being sent to Rome to purge himself of this Treason he Forswore it at St. Peters Altar but fell down and being carryed into the English Colledge Dyed and his Estate by Act of Parliament was given to the King Adjudicata est tota Possessio in magnis in Modicis quemadmodum judicaverunt omnes Optimates Regni Anglorum as the Kings Charter speaketh settling his Land on Malmsbury How tender they were of Blood I spake before and of K. Williams Law Nequis occidatur vel suspendatur but Wigornensis and Hoveden speak of K. Henrys Law for Hanging any found in Furto vel Latrocinio yet in Ethelstane the Wergylds were agreed by Parliament and a Kings Life valued at 30000 Thrymses Of Anlo's League among the Saxon Laws that he was chosen King by some that rejected Edmund we read in Florence and Hoveden as of one that Scrupled in Ethestane because he had Sworn Fealty to Anlave in the Monk of Malmsbury but it might be another Anlave Edred came in by Election being preferred before the Sons of Edmund who was King before him of his Parliament Summoned by Writ we spake before in the Militia About this time were the Constitutions of Odo de officio Regum Secularium Principum they are found in Saxon and are now Printed in Latin to be compared with the Statutes of Calcuth What Power they had may appear in Edwin for Incest Excommunicate by the same Odo unanimi omnium Conspiratione Edwino dejecto Eligerunt Deo Dictante Edgarum in Regem Annuente Populo res Regni Publica despertita inter Fratres and afterwards Clito Edgarus ab omni Anglorum Populo Electus est c. Confluentibus Principibus omnis Ordinis Viris cum magna Gloria Bathoniae coronatus est presentibus Praesulibus ac Magnatibus Universis Datis singulis Donariis consuetis quae Reg. Coronat dari Magnatibus consuescant of which Matth. Westmon Malmsbury Hoveden and Florence of Worcester How this Mighty Edgar was handled and Humbled for Ravishing a kind of Nun is observed by divers and that after his seven Years Pennance being not to wear his Crown Congregatis omnibus Angliae Principibus Episcopis Abbatibus The Crown was again Restored to him Coram omni Multitudine Populi Anglorum cunctis Laetantibus Deum in Sancto Dunstano Laudantibus as may be read in Capgrave Baronius of this and a great Lords Rape of that time speaketh of some Appeal to Rome whence Dunstan was commanded Peccatori condescendere but he would understand it only si Penitens Peccatum relinqueret Nec aliter saith Baronius potuit intellexisse Edgar being dead there was much Contest in Electing the next King De Rege eligendo Magna inter Regni Primores orta est Dissensio quidam Eadwardum Quidam eligerunt Ethelredum as the Monk of Worcester besides Hoveden and Matthew of VVestmon who agree also that at length the Arch-Bishops cum Chorepiscopis Abbatibus Ducibusque quamplurimis did Elect Consecrate and Anoint Edward Who enjoyed it with little quiet and among divers Contests of Parliament affrighted at the House Fall or amazed at the Angels or some Strangers voice they knew not whence E're long we find him hudled into Dust at VVarham which Queen Aelfrith or Aelsted attoned by Hospitals or other works of Devotion but a Fiery bloody Cloud followeth a Blazing Comet Of St. Edwards and St. Dunstans annual Festivals established by Parliament the Laws of Canute It was that Dunstan who presaged so much ill of Ethelred at his Baptism and to him
which was some Repetition of his Coronation Oath Some affirm that he refused to be Crowned by Canterbury but Neubrigensis telleth us that he sought it of him Tyranni nomen exhorrescens legitimi Principis personam induere gestiens but Canterbury denied to lay on his hands Viro Cruento alieni Iuris insavori Then he complyed with York and bound himself Sacris Sacramentis pro Conservanda Republica c. It might also be added that if K. Edward might dispose the Crown as his own Fee yet by the Common-Law or Statute of Calcuth he could not dispose it to a Bastard as K. William is expresly called in the Letters sent to the Pope from the Parliament of Lincoln in Eward the first besides his own Charters and of attempts to Legitimate him that so he might succeed by common-Common-law See the Comments on Merton in the second Part of Institutes and of the Laws of Norway before But in the Old Book of Caen we may find K. William on his death Bed wishing that his Son might be King of England which he professed he neither found or left as Inheritance Neminem Anglici Regni Constituo Haeredem non enim Tantum Decus Haereditario Iure possedi That K. William the second K. Henry the first and K. Stephen came to the Crown by Election without Right of Succession is so much agreed by all that it were vain to prove it Their Elections and their Oaths are every where among the Monks and good Historians So also of Henry the second and Rich. the first But in K. Iohn's Coronation we are brought beyond dispute in full Parliament of Archshops Earls Barons and all others which were to be present the Arch-bishop stood in the midst and said Audite universi noverit Discretio vestra c. It is well known to you All that no Man hath Right of Succession to this Crown except that by unanimous consent of the Kingdom with Invocation on the Holy Ghost he be Elected from his own Deserts Lectus secundum Morum Eminantiam praeelectus c. But if any of the last Kings Race be more worthy and better than others his Election is more proper or more Reasonable Pronius promptius in Electionem ejus est consentiendum As it now is in Earl John here present Nor was any one found that could dissent or oppose what was so spoken for they all knew it was not without much Reason and good Warrant from their Laws and Customs Scïentes quod sine Causa hoc non sic definiverat For which Matthew Paris or Wendover may be compared with Hoveden Westminster and others of those Times Which seemeth most rightly to state the nature of Succession as it was in this Kingdom So that all did amount but to this That if a King had such Children so qualified and so Educated that they were above others in Vertue Wisdom and true worth or at least Caeteres Pares they were the most likely Candidates for the Crown But as we found before among the Iews in the strictest Succession where the Crown was especially tied to the House of David yet their great Sanhedrin had alwayes the Power and Right to determine of the Claims Interests Deserts and Vertues of Heirs or all Pretenders So if here we allow not such a Legal power of Judging of Claims or Titles to be placed somewhere or other our Ancestors did leave the Crown at a more blind uncertainty than in all other things they were accustomed from the Law of Nature and Right Reason I might add the Formal of Coronation joyned to the Irish Modus of Parliament under the Great Seal of Henry the Fourth where we read Electio à Plebe ad Regem ut consecretur Postquam ad Idem iterum Consenserit and again Electum interroget Metropolitanus c. How our Allegiance was of Old tied to the Kings Person not to his Heirs nor to his Person but together with the Kingdom and the Laws and Rights thereof hath been observed already Much I might add of latter times Nay that very Statute of Henry the Seventh which of late was pressed for the King and his Militia or taking Arms with him as Allegiance required doth expresly declare our Allegiance to be to the Kingdom with the King and that by such Allegiance men are tied to serve the King for defence of him and the Land And for the Kings Heirs I find them not in our Allegiance Yet the Statutes of Edw. 2. are punctual in expressing the Kings Prerogative or Rights of the Crown but where is provision for his Heirs In Eward the Third the Iudges Oaths were made and stand among the Statutes as enacted by Parliament although I do not find it so upon the Rolls And there is a Clause against Consent to the Kings Damage or Disherison So also it is in the Oaths of divers in the Courts of Justice as of Masters of Chnacery with the Kings Serjeants or Councel at Law and others but not so by Parliament See the third Part of Institutes Cap. 101. Yet our Old Allegiance did forbid Disherison or Damage but with Limitation as we shewed before The late Oaths of Allegiance in King Iames and of Supremacy in Q. Elizabeth taken by Parliament-men and divers others are to the Kings Person and his Heirs and Successors with particular Relation to defence of the Crown and Dignities thereof Which is Remarkable and that which may seem to excuse some in not assenting to others which are not so obliged and yet it is thought by some that the main or onely meaning of those Oaths was against Rome or forreign Enemies For which also a Declaration in the Queens Injunctions may be considered But in all Cases of real Scruple I cannot censure any that in a quiet humble manner seeking Peace and Truth followeth his Conscience till it is rightly informed In the Quarrels of York and Lancaster there was an Act in Henry the Fourth to entail the Crown upon the Kings Issue of which four are there named But in Henry the Eighth the Parliament declared the Succession to the Crown not yet settled or cleared enough and then it was entailed again and for lack Heirs Male upon Elizabeth But this again repealed in Mary and again in Elizabeth and Iames. How much or how little these annulled the Common-law I must submit to others lest upon debate I should be forced to yield it might be possible for future Parliaments to reduce Succession to Election as justly as some late Parliaments did turn the common-Common-law of Election into such or such a Succession which can only stand by Statute if it be true as all tell us that there was no entailed Inheritance but by statute-Statute-law since the Second of Westminster of which before How little Power Kings had over their Crown or Kingdom without consent of Parliament besides all that is said already might be further cleared from the acknowledgments of Kings Themselves below the time of the Conquest
Lists which I would avoid as a Purgatory being otherwise I say not better imployed than in such unprofitable Wranglings I should believe it not very difficult much less impossible to maintain That both the Moulding and Manage the Make and the Use of the Kingdoms Militia was ever immediately subject to the Command of the Courts of Iustice especially the Parliaments which may in a large Sense of Law be called the Crown or King's Politick Capacity but never I think to the King's Person alone which in Law is still an Infant as the Mirrour expresly calls him though his common Capacity be ever of age Be the Person a Child an Infant Lunatick Incompos Mentis or a Woman which sure our Ancestors could not but deem a most unlikely Person for a wise and valiant General If I were compelled to argue this it should not be only from right Reason or the Law of Nature which yet to me seemeth much to encline this way The Feet are to bear and the Hands to help to hold to bind and rub the Head in any Distemper or Weakness but if I should hear of any Man born with his Heels in his Neck or his Hands tyed to his Head or immediately under his Chin I should think it a Monster And wherever both Hands and Feet are at their due Distance from the Head with divers Nerves and other Vessels Bones and other parts between them yet I never heard or knew that they did obey the Head till it did command itself and them also by Reason or till it also doth Obey not only its own Eyes and Ears but the Common Sense and Reason of the Soul I must confess I have heard that Ticho-Brah did sometimes imagine that he found Mars below or under the Sun But if it were really so it seems as great a Prodigy in Nature as the new Star and that of Mars rather than a new Star in Cassiopeia might presage those sad Commotions which have since followed in many Places of Europe while Mars hath been so much below or under the Sun For by Nature Mars was said and ever thought to be placed immediately under Iupiter the great Judg or Court of Iustice which should command the Sword And so it doth by Law For in England the Iudgments given in any Court of Record do so command the Militia for Execution for a Writ runs of Course which was made by Common Consent and cannot be denyed Release to all Actions will not hold against Execution except all Suits were also released But this is such a Suit as the Law calls a Demand which may not be denyed And for other Cases of Routs Riots unlawful Assemblies Invasions c. The Posse Comitatus and by Consequence the Posse Regni was Disposed and Commanded by known sworn Officers that acted Virtute Officii by the Law and Custom of the Kingdom For it may be known that the old Iustices or Conservators of the Peace were chosen by the Counties as appeareth by Writs yet to be read from the Rolls of Edward the First And now their Commission and their Power dependeth on Parliament Nor could the Chancery have given such a Power had it not been so Established by Parliament which hath also strictly provided for their Legal Nomination and Election For which the Statutes of Richard the Second Henry the Fifth Henry the Sixth and before them all Edward the third thought it were not printed And it is very well known how by the Common-Law and Custom of the Kingdom all the Sheriffs do command the Posse Regni in their several Counties and that not onely Execution of Writs which may be thought to be Matters of Peace But the Lawyers know that Sheriff is Custos Legis and Reipublicae as well as of Peace of which he is the Principal Conservator in his Shire and County Nor may it be Presumption to say That all these Sheriffs also ought to be and so were chosen by the People as is sufficiently found in Hoveden and in the Laws of the Confessor And in full Parliament of Edward the first it was declared to be the Law and Custom of the Kingdom and therefore so setled in the Choice of the People There was in latter times some Alteration made in Choice of Sheriffs but it was by Parliament However we all know that Headboroughs Constables greater men than themselves know Coroners and divers others are yet still chosen in the Counties and do act by Custom and common-Common-Law And the Sheriff also however he be chosen yet he stands not by Commission nor ought to fall with Kings death But is a standing Officer by common-Common-Law Who may command all Lords Knights Gentlemen and others in his County by his Writ of Assistance Which issueth of course to every Sheriff I need not say how little the Kings Personal Command or Warrant can by Law interrupt or hinder the Process of Sheriffs Iustices Constables or others in their legal course for the Publick Peace Yea insomuch that if I should have beaten a Drum or raised Forces to rescue King Henry the Eighth from the Compter for abusing a Petty Watch in a Night-walk I might have been arraigned for it And so I might have been for refusing to fire the Beacons or to have raised the Counties if I had seen a Navie of French or Turks landing in King Iohn's time Although the King had come to me and bid me quiet because they were Friends or such as he invited in for the good of his Kingdom Which from his own Mouth or under his hand would have been no legal Supersedeas to a private man in case of such Danger much less to a Sheriff or other sworn Officer For in such cases of Apparent Danger any man that is next may esteem himself an Officer as in quenching great Fires or damming out the Sea And in such though the King himself should forbid me or get me indicted I may demur and put my self on the Judges of Law especially Parliament the most proper Judges in such Causes And to Lawyers I need not cite Records or Precedents Nor shall I need to adde That in case of Foreign Invasion or Intestine Motions and Breaches of Publick Peace the Common known Laws of the Land will warrant a Sheriff Officer or private man to go over a Pale an Hedge a Ditch or other Bound of a Shire or County In which our Ancestors were not so ceremonious or superstitious in case of hot Pursuit or the like Although they were punctual enough in keeping of Land-marks And in Peace in cases of real Actions and personal Trials They were very tender of those Marks in special that bounded out Shires or Counties The Original of Shires and Sheriffs is generally fixed upon King Alfred But the old Abbot of Crowland whence this arose seemeth to speak of new Names rather than Things for himself hath Provincias Comites Vice Domini though not Vice Comites of Ages before King Alfred And the Monk of
Malmsbury durst not follow Ingulph in this of Shires as he doth in Hundreds which yet as Wapentakes were elder much if we may credit Tacitus Old Ethelward and the Author of both the Offa's with Huntingdon among Historians and the Lawyers old Horn-book the Mirrour do find or make Counties and Counts before King Alfred And we may go higher much if we may trust to Alfreds Saxon Bede now printed with an old Saxon Chronologie by Mr. Wheelock In both which we read so much of Eorl Eolderman Shire-Alderman and Bishops-shire besides Shire-born that is his Parish For this was the old Diocess before the Novel Division of Parishes And before Alfred as high as King Ina. His Laws now extant tell us of Shire-men that were Iudges also as the old 〈…〉 nts and Shireeves and of Ealdermen that were to forfeit their Shires if they let Thieves escape I might adde the old Writs of Assize in St. Edmund's time on which the great Judge buildeth in two or three Books of Reports for Sheriffs Tryal by Twelve and other things which might have other clearer Proofs If any would also assert such Division among the old Britains he might have much from Nature in Rivers or such Partitions to most of our Shires besides the names in Cesar Tacitus Strabo Ptolomy and besides that which Virgil himself will admit of Molmutius Laws assigning the Ways and Plows for every County which is in others besides Monmouth or Virunnius For Polydore addeth in this which is to be marked besides St. Edward's Laws This Disgression may be the more tolerable as that which maketh way to such Elections as we might assert in the Parliaments of those times also were this the proper place But to return to the Militia We have found it moulded by Common Consent and by it also committed to Shireeves and other Officers known sworn and chosen by the People We shall now step a little higher that we may see how in elder times the great work of War as well as Peace was managed And this also we shall find entrusted to a Common Council I do not deny but the King himself hath sometimes been General of a great Army and that legally also for it was by Consent of the People or Parliament So it was when the Romans came into this Island Cassibelan was King and chief Commander in War But it was by Consent of a great Common Council as Caesar himself observeth and reporteth Summa belli Communi Coneilio Cassibelano traditur Nor can it be wondered at when their Druyds grand Maxime of State was this Ne loqui de Republica nisi per Coneilium Not so much as to speak of a matter of State but in or by a Council These were they that sent Caesar word they had as good Bloud as lie and from the same Fountain having been so long acquainted with Liberty that they knew not the meaning of Tribute or Slavery The British Druyds moulded the Gauls Cesar reporteth it with the Brag of one of them saying That he could call or appeal to such a great Common Council that all the World could not resist it But there were others also besides Kings chosen by the Britains to be Generals such as old Authors call Principes Militiae a Phrase given to divers two I remember Bolinus and Levisham as now he might be called in the time of Kimbolinus acting by Common Council as all may find that read those Histories Which we may now assert by better Authors than old Monmouth though he be better also much better than Polydore or others would perswade us It was this great Council with the King that treated with and against the Romans in all times and that sought their aid at length against the Picts and Scots And when the Romans could not attend the Britains Tears it was this Council that called in their Neighbours first and Friends the Britains from Armorica the Gaulish Britain and that before King Arthur's time Of which so many Authors write that Convocato Clero and Primatibus Communi tandem assensu mittuntur in Armoricam Nuncii c. A Parliament clear enough yet not so clear as any man acquainted with those times might prove beyond dispute But I now must attend the Militia A Parliament it was that called in the Saxons not the King alone but Parliament of Lords and Commons also if besides the Crowd of all in the Road I be not deceived by the Saxon Chronologie and Gildas himself whose very words almost are used by Monmouth and others and by the famous Nennius of Bangor who yet liveth in Manuscript He is clear enough for divers things we doubt in British Stories And for Parliaments also before the Saxons setling here which was by Act of Parliament Dum Conventa magna Synodus Clericorum Laicorum in uno consilio cum majoribus natu Consilium fecerunt scrutati sunt quid facerent tandem Concilium omnibus fuit ut pacem facerent postea verò Conventum adduxerunt here was a Covenant also by Parliament Statutum est ut amicitia firma adjuvicemesset c. Thus Nennius after his escape from the Massacre at Bangor Come we now to the Saxons setled here by Parliament In this they may seem more considerable that by most they are made the Patrons of Chivalry or Tenures by Knights-service for it is now believ'd by no Lawyer or Historian that I know that this came in with the Normans although it was so thought by some I have somewhat to say in due place why it might look higher than the Saxons yet I must yield it had been but little room among the Britains of Gavel-kind Of which the Parliament in Henry the Eighth and more hereafter besides all the Comments upon the Statute or rather the Writ de Militibus None doubt but Tacitus speaketh of our Saxon Ancestors or rather theirs in that in their chosing Kings and Generals Reges ex nobilitate Duces ex virtute by Common Council in iisdem conciliis Eliguntur Principes de Minoribus Principes de Majoribus omnes consultant And that such Council did both mould and manage the Militia is plain enough in the same Author Who besides all matters of History telleth us their general Custom was Not to entrust any man with bearing Arms antequam Civitas suffecturum probaverit till some Common Council more or less had approved him For so I may translate it to all that know how much Vrbs and Civitas do differ The Tract of Parliaments is visible enough in all the Saxon Writings here I should be tedious in citing but one quarter of that which their Laws yet to be found and very good Authors do afford in this Some have much wondred at a Passage now found in the Confessors Laws It is about Titles which he saith were preached by Austin and granted by the King then reigning and the Barons and common People Concessa sunt à Rege Baronibus Populo A very
Parliamento personaliter Existentibus And the Title of these Acts is Statutae Canuti Regis Angl. Dan. Norw venerando Sapientum ejus Concilio ad Laudem Gloriam Dei sui Regalitatem Reipub. Utilitatem Commune Commodum habita in S. Nat. D. apud Winton c. This I find also cited by the great Judge in one part of his Reports but fuller by Sir Henry Spelman It would be tedious and superfluous to cite the Authors that assert he did confirm King Edgar's Laws in full Parliament For which we might produce some better or at least much older than good Bale or Grafton Many of his Acts of Parliament are printed Consultum quod Canut Angl. Dan. Norw Rex Sapientum Concilio Wintoniae Sancivit Here Allegiance or Fealty setled by Parliament and afterwards Praecipimus uniuscujusque Ordinis singuli Muneris atque Officii sui Religionem Diligenter cauteque teneant And among other Encouragements to Chastity this is one That such chast men of God should enjoy the same Rights or Priviledges with Thanes and Ethelstane's Laws do equal Priests with Thanes But there are two or three degrees of Thanes in these Laws about the Hereots for the Eorles and Thanes c. much to be marked as pertaining to the Militia For which and for all Canutes Laws the old MSS. Huntingdon is worth perusal Again we find other Statutes Civil or Politick Sapientum adhibito Consilio Mid Minan Witenan raede that Man heald ofer eall Englaland With provision against Thieves Robbers for the Peace Hue and Cry c. There are Statutes also for repair of Burgs and Bridges Scyrforhinga praefidii fiat apparatus Terrestis ac Maritimus quoties ejus Muneris Necessitas Reipublicae obvenerit And presently after Quae ad Reipublicae pertinent Vtilitatem Among the Crown-Prerogatives Violata Pacis Divitatae Militiae Mulcta Sheriffs Turns Hundreds and Tythings are here confirmed and the twelve-year-old Fealty with views of Frank-pledge But this Oath was to the Kingdom rather than to the King Fidem det omni se in posterum aetate tum Furti tum Furti Societate Conscientià temperaturum Again of passing Ordeals Sythan tha Gemot waes on Winceaster since the Parliament at Winchester this being at Oxford at after Iussum vero ac Placitum hoc Nostrum si Praepositorum aliquis incuriâ omiserit aut exequi aspernabitur ex Nostrà Omnium Sententia Regi 120 s. Dependito A clear Parliament Si quis alium injustè armis spoliavit eam quae est loco Colli obstricti Mulctam Dependito Healsfange It is also in the same Laws the punishment of false Witnesses Some think it the Pillory some worse as the Original of that Proverbial Letany From Hell and from Halefax See K. Hen. Laws and Helfang Si quis in Militiâ perfectione Militari pacem violaverit vita vel Weregild Mulctator si quid rapuerit pro facti Ratione compensato Si quis Pensionem ad oppida pontesve reficiendos denegarit Militiamve subterfugerit dato is Regi 120 s. Again in those Statutes The King must live upon his own Feormians or Farms which in Saxon afford all needful for man and none may be compelled to give him any Maintenance That the Folk be not burthened It is the 67th Chapter Loss of Dower or Joynture to Widows marrying within twelve months might seem hard but so long she need not pay any Heriot And the same Laws free the Wife from her Husbands Theft although found with her except it be lockt in her Hord Chest or Tyge Dispensae arctae Serinii Of which that Law giveth her leave to keep the Keys But Ina's Laws are hard concerning Children Again for the Militia He that in Sea or Land-fight leaveth his Lord or Comrague Felugo must die as a Traytor his Boocland to the King other 〈…〉 Estate to his Lord. But of him that dieth fighting with his Lord without any Heriot the Heirs may enter and Scyftan hit swithe righte Of this Shift-Land and Gavelkind Lambard in Terra Scripto Perambulation of Kent and Spot of Canterbury besides several Acts of Parliament in Edw. 1. Edw. 3. and Hen. 8. If Celeberrimus ex omni Satrapia Conventus which is there and by King Edgar also to be twice a year or oftner be Parliament as such great men have thought then have we much here also for Power and Priviledge of Parliament Nay more indeed if it were but the Grand Folemoot or Sheriffs Turn so much below a Parliament He that in such a Grand Moot had defended and maintained his Right and Plea to any Land is there setled without dispute for his life and his Heirs or Assigns as his Will should dispose Chapter 76. And again for Priviledge of Parliament or yet lower Sive quis ad Comitia profiscator sive revertatur ab eisdem from Gemote or to Gemote placidissima pace fruitur nisi quidem furti fuerit manifestus Theof Thievery founded more with them than now with us For their twelve-year-Oath of which before at Frank-pledge was onely against Theof which yet seemeth to intend all above it for what forbiddeth the less forbiddeth the greater much more One thing more I may observe through all these and other old Laws there is still so much Religion and plain-hearted Simplicity with Piety expressed that it shews our Ancestors had not yet learned to be ashamed of their God or of looking towards Heaven I have been the longer in these that so I may be the more brief in those that follow for by this time I am come to the Laws of St. Edward as he is called and I should mispend my own time and abuse others in vouching all the Demonstrations of Parliaments in his time His Charters to Westminster are near enough and may be known of all wherein he confesseth his Resolutions for going to Rome But Optimates Communi habito Concilio rogabant me ut ab intentione desisterem his Vows made him more pressing than else he should have been But these also his Parliament undertook to satisfie Et tandem utrisque placuit so he speaks ut mitterentur Legati c. While these stayed at Rome procuring his Absolution a Vision to a Monk commandeth repairing or refounding of St. Peters Westminster as antient as Austin the Monk I cannot omit a passage in one of the Popes Letters of that time telling the King That he must expect great Motions and Alterations for the World was near its great Change and the Kingdom which he calls Sanctorum Regnum foretold in the Scripture was coming to begin and never should have an end King Edward refers it to the Parliament and at length Cum totius Regni Electione they are his own words he sets upon the decayed Minster Which he rebuilt with the Tenth of his whole Estate and there reposed the Reliques which the Popes gave to King Alfred at his Consecration with this grand Priviledge of Refuge and Pardon to any that fled
And where-ever these are found released as to Peterburg Canterbury Westminster but especially to Glassenbury the first and oldest Church in Britain Fons origo totius religionis It may be a clear Demonstration of the Parliaments assent to such a Charter For otherwise they could not be dispensed with by the King as we may find expressed in divers Charters as in those of Crowland which yet had great immunities And of that Restriction Matth. Paris may afford us the true reason because those three were setled for the Kingdom Propter Publicam Regni Vtilitatem ut per ea resisterent hostium in cursibus And K. William's Laws Castel Burg. Civit. fundatae aedificatae ad tuit Gent. Popul Regni ad Defens Regni idcirco observari debent cum omni libertate integritate Ratione Private Castles for habitation may be given in Dower and divided by Pacerners but so may none for publick defence Yet of such also may a man be Tenant by the Curtesie being able to guard them for Publick service of the Common-wealth One grand Objection must be removed but we need not fear it for it will flie or run away of it self 'T is that of the Conquest as many are pleased to call it not attending how little in this they be the Kings Friends for if this were his onely or his main and best Title there might be found in future ages some that may come to think it as lawful to conquer him as it was or could be to conquer them It must be considered for if the foundation be not sure and low the higher the building is the nearer its fall And it hath been observed that the higher Skale got up by accident is more ready to pop down again than it was before while it hung in due poize It seemeth a great weakness to be apt or prone to Suspition and therefore I shall not say I do suspect some that are most zealous for Prerogative or the Title of Conquest to be least acquainted with the Laws or Histories of England But I cannot be wholly free from wonder that any Lawyer or Historian that was friend to the King should be passionate in these which were so clearly quitted by that King whom they call the Conquerour He stood on Stilts or Patents or Pantofles but on plain English ground with two feet as other men The left and the weakest was Succession to Edward whose Kinsman he was and Heir by Will as appeareth by divers Passages in these very Laws of Saint Edward and William which may be seen and read of all But the right Leg with the strongest and best Foot he had to stand upon was the Peoples Assent Consent Acceptance and Election which we shall yet more fully clear when we discuss the Right of Succession or Election to this Crown and Kingdom But for the present it may suffice to observe That all these Laws we now have of King Edward's come to us through the Hands and Grant and Confirmation of King William the Norman and no otherwise Which I need not prove to any that have either read or seen the Laws themselves of which we speak For in the very Title and Preface thereof besides divers other passages in them all this and much more is fully related and recorded For it is there also further added That all those Laws were so presented to the said King William by a sworn Iury out of every County Who did also assert That these which they did present as the Laws of St. Edward were the undoubted Laws and Customs of the Kingdom that had also been collected into a Body by King Edgar and continued though sopite through the Troubles of succeeding Kings till Edward had the leisure to renew or rather confirm what was the Law before Nay when among all those Laws King William did most encline to those which came from Norway whence his Ancestors and Lords had issued forth and where a Bastard might inherit all the Patriarchs of England Compatriotae Regni qui Leges edixerant did so move and press him with such Arguments as may again be well considered that at length in Parliament Concilio habito precatis Baronum the King himself consented as they did desire This is expressed in his own Laws And by his own desire the Archbishop of Canterbury was one of those entrusted with enrolling or recording of those Laws Which to that very King and to his Successors to this very day became one special Clause of the Coronation-Oath Which was To confirm all the Laws and Customs of the Kingdom but especially the Laws of St. Edward called the Confessor And one of King William's own Laws is That all men observe and keep the Laws of King Edward in all things Adauctis his quas constituimus ad Vtilitatem Anglorum If this be not yet clear enough for the Laws themselves which are now extant and may be read and known of all we might confirm it much by Ingulph living at the same time and bringing those Laws with his own hands from London to his Crowland with such an Endorsement or Title of his own making Leges aequissimi Regis Edwardi quas Dominus meus inclitus Rex Willielmus Autenticas esse perpetuas per totum Regnum Angliae inviolabiliterque tenendas sub poenis gravissimis Proclamarat suis Iustitiis commendarat c. He was like enough to know it And the old Book of Litchfield cited in the great Reports besides that of the Iury from every County addeth also That the same King William did by the Counsel of his Barons call by Writ of Summons Summoniri fecit all the Nobles Wise-men Elders of the Witan and learned Lawyers in each County And in that great Parliament Ad Preces Communitatis Anglorum Rex acquievit c. confirming all by Common Council This of Litchsield is now printed in several places and Roger Hoveden agreeth in Henry the Second Nor did he onely confirm but in some things mitigate and in divers explain and clear what might seem obscure or heavy to the People Ad Vtilitatem Anglorum His Laws are now printed both with Mr. Selden's Notes on Eadmerus and with Mr. Wheelock's Impression of the Saxon Laws and History with a very good Preface of Sir Roger Twisden They do oblige us much that love and clear our Laws so far as just and good What Emendations and Additions King William made to St. Edward's Laws in this also of the Militia we have observed before at our unexpected enterance on this Question Which was not at all intended to be once so much as touched but in one Parenthesis Which was past Recovery before this Discourse was so much as designed But now having wandred so much and so far beyond my own purpose as well as my Subject I could almost be perswaded to step a little further and to touch I must no more upon some few passages between the Conquest as they
quo Lanfrancus diratiocinatur and the conclusion that he was to hold his Lands and Customs by Sea and Land as free as the King held his ezcept in three things si regalis via fuerit effossa arbor incisa juxta super eam ceciderit si homicidium factum sanguis in ea fusus fuerit Regi dabit alioquin liber a Regis exactoribus In the same Author were read of a Great Counsel at London in that Normans Reign and of another at Glocester where the Arch Bishop of York jubente Rege et Lanfranco consentiente did consecrate William Bishop of Durham having no help adjunctorium from the Scottish Bishops subject to him which may be added to that before of Scotland belonging to the Province or Diocesse of York Nor can I abstain from the next paragraph in the same Author how Lanfranc did consecrate Donate a Monk of Canterbury ad Regnum Dubliniae at the Request of the King Clergy and people of Ireland Petente Rege clero populo Hiberniae which with divers others might be one Argument for the Antiquity of Irish Parliments and their dependance on England long before King Henry the Second For which I might also cite King Edgars Charters Oswalds Law and divers Historians of his times But the Charters mention Dublin it self and yet our Lawyers are so Courteous as to free Ireland from our Laws and Customs till towards the end of King Iohn and some of them conjecture that the Brehon Law came in again and that our Parliament obliged them not till Poynings Law in Henry the seventh But to return to our Norman King I need not beg proofs of Parliaments in his time at least not to those who know the Priviledge of antient Demesne which therefore is free from sending to Parliaments and from Knights Charges and Taxes of Parliament because it was in the Crowns not only in King William but before him in King Edward and the Rolls of Winchester for which the old Books are very clear with divers Records of Edward the third and Henry the fourth besides natura brevium That I say nothing of the old Tractat. de antiquo Dominico which is stiled a Statute among our English Statutes And besides all the late Reports or Records I find it in the Year Books of Edward the Third that he sued a Writ of Contempt against the Bishop of Norwich for encroaching on Edmondsbury against express Act of Parliament By King William the Conqueror and by the Arch-Bishop of Canterbury and all the other Bishops Counts and Barons of England It is 21 of Ed. 3. Mich. fol. 60. Title 7. Contempt against an Act of Parliament This might well be one of the reasons why the great Judge giveth so much credit to the old Modus of Parliament as it was held in the time of King Edward the Confessor which as the antient copy saith was by the discreet men of the Kingdom recited before King William the Norman and by him approved and in his time used I have cited it before and compared it with Irish Modus which my much honoured friend Mr. Hackewil one of the Masters of Chancery hath under his hand attested from the Great Seal and Charter of Henry the fourth which himself hath seen reciting a former Charter of King Henry R. Angliae Hiberniae conquestor Dominus who sent the same Modus into Ireland Where himself or his Son Iohn sans terre had no great work to reduce them to the civility of Parliaments To which they had been long before accustomed and the Roll saith communi omnium de Hibernia consensu teneri statuit c. nor doth the division of the Irish-Shires seem so lately setled as some have thought although I may not dissent from the great Patron of Civill and Ecclesiastical Learning the late Primate of Ireland Touching that Irish Modus I have very little to add to the fourth part of the great Institutes in several places I shall now only observe that both these old Modi of Parliaments do agree in this Custom of the Kingdom that the King should require no Ayd but in full Parliament and in Writing to be delivered to each in degree Parliament And both they agree that every new difficult case of Peace and any war emergent within or without the Kingdom vel Guerre emergat in Regno vel extra ought to be written down in full Parliaments and therein to be debated which may be considered by all that will argue the Militia To which also we may add one clause of the Jewish Laws of their great Sanhedrim to whom they retain the power of Peace and War especially where it is Arbitrary and not meerly defensive in which the Law of nature maketh many Magistrates and this might with ease be confirmed from the Laws and Customs of all Civil Kingdoms in all ages But I must not wander from our English Laws I had almost forgotten that which should be well remembred Although many would perswade us to seek our Laws in the Custumier of Normandy it is not only affirmed in the Great Reports but also asserted by Guil de Rovell Alenconien and proved by divers Arguments in his Commentaries on that Grand Custumier that the Normans had their chief Laws from Hence As had also the Danes in the time of Canute for which we might have more proof and witness than the Abbot of Crowland So much even strangers did Love and Honour old English Laws Of King William the Second Sirnamed Rufus I shall speak but little for I must discuss his Election and Coronation Oath in a fitter place Some footsteps we find of his Parliaments in divers Wigornensis and Hoveden tell us that when he would have constrained the Scottish King ut secundum judicium Baronum suorum in curia sua Rectitudinem ei faceret Malcolm did refuse to do it but in the Confines or Marches Where he could not deny but the Kings of Scotland were accustomed rectitudinem facere regibus Angliae But he then said it ought to be by the Iudgement of the Parliaments of both Kingdoms secundum judicium utriusque Regni primatum And I find the like Record cited on Fortescue from Godfrey of Malmsbury But Huntingdon and Matthew Paris also relate that the same King Malcolm did submit both to do Homage and to swear Fealty to our English King and Paris addetth a pretty Story of King Malcolms overlooking Treason But again to King William Of his Errors in Government I shall only say that if Edom did really signified Red as hath been thought I could believe that all Historians speaking of Adamites then oppressing the People might allude to the near affinity between Edom and Rufus for Red. For this was his Sirname of King William the Second Henry the First is yet alive in his Laws and Charters Not only in Wendover with other Historians but among the Rolls and Records yet to be seen in the Exchequer They are now in Print
so courteous as to confirm some such Sea-Custom for which he had a very sad Occasion when his Sons and Daughter with so many Friends were drown'd in one Shipwrack But as Richard soon after him seemeth more courteous in this also if we may believe Hoveden So I doubt not to assert it to higher and elder Times And yet the Law Maritime is dark enough with all the jurisdiction of the Court Admiral Whose office may be harder than the Name A strange mixture of Greek and Arabick The old MS. del ' Office del ' Admiral hath divers Records of H. 1. R. 1. and K. Iohn Speaking of Tryals by 12. as at Common Law but now the practise is much otherwise In the Rolls of Ed. 1. the Name of Admiral but not in our Printed Laws that I know till Edw. 2d And in Edw. 3d. the Rolls are full of that Office parted among divers for the North and South Seas c. As was touched before in Edgar In Richard the 2d it was brought to a weldy model being uncertain rather than infinite before For the bounds were ever straiter much than some may imagine They were again disputed in Henry the 4 th Eliz. and Iames. It lies more open to the Common Law than to the Wind and to a Premunire some are apt to think much more then all are aware I may touch it again in a fitter place Here I shall only add that besides the Laws of Arthur the Brittain and Edgar the Saxon we have some Records for so I may call them of Customs by Sea as well as by Land With Priviledge to some below the King before the Norman whom they make the Founder yet he was but Patron of the Ports and Wardens for the Sea Somewhat of this in Lanfranc's Case before and more again ere long Historians are clear and full of this King's Parliaments and of his Summons to Parliament Majores natu Angliae Londoniae Congregavit and again principes omnes totius Regni Nobilitatem sanctione adnotavit so the Monk of Worcester and Hoveden almost in the same words which Matthew Paris expresseth thus magnatibus regni Edicto Convocatis And in Walsinghams Neustria Majoribus regni and Principibus Convocatis Virgil himself confesseth his full Parliaments And of a Convocation House distinct from the Parliament sitting at the same time they are plain enough Et cum rege principes regni omnes tam Eccles. quam Secular apud Westmon ubi etiam Anselm Cantuar. Archiep. magnum tenuit Consilium de his quae ad Christianitatem pertinent as Florence and Hoveden Huntingdon is also clear in such a distinction Rex tenuit Concilium apud Londoniam Willielmus Archiep. Cantuariensis similiter in eodam villa apud Westmon and this Author useth to stile the Parliament magnum placitum of which before and the Convocation House Concilium or Synodus which yet in him in all was confirmed by Parliament or else invalid In Parliament were also decided the Great Contests between Canterbury and York not only concerning the Crown or Act of Coronation in which to this King they both joyned as we find in Matth. Paris and Walsingham But the Parliament declared that it did not at all belong to York as besides Hoveden we read in him that continueth Florence of Worcester But in Beckets absence it did fall to York and so it had been before So also Canterburies contest with the King was debated in full Parliament three days together in the Arch Bishops absence and at length composed with the consent rather than content of both parties The King was resolute for investiture as he found it from his Father and Brother the Clergy was pertinacious for the Popes Decrees But the Emperour Son in Law to our King did so muzzle Pope Paschal that he Consents and Decrees that none should be Consecrate but whom the King Invested as the Clergy and People chose him It seemeth considerable how all Historians of that time and dispute do Record the choice of Bishops to be in the People in Phebe and in Populo as well as in Clero They mention Radulph ordained a Bishop for the Orcades but rejected by all because not Elected by Common assent of the People Plebis Clero Principis 't is every where in the old Monks and how the poor Bishop wandred up and down as an assistant to other Prelates Of him and of English Right in Scotland and Ireland much might be added from the Notes of Eadmerus and somewhat of Lanfrancs Plea at Pinenden And at Prince Roberts Landing commoti sunt principes erga Regem causa Roberti c. But many of the Lords left the Parliament subtrahentes se de Curia sed Episcopi et milites Gregarii Angli the Commons stuck to the King who was Provincialibus gratus and at length the Witan or Parliament composed the quarrel Sapientiores utriusque partis habito consilio Pacem inter fratres composuere 'T is in Florence and Hoveden with Malmsbury Wendover with Huntingdon Record how the great Firebrand in that War Ranulph of Durham was committed by the Parliament de Communi Consilio Gentis Anglorum This was the great man whom K. William had made Pacitator in Matth. Paris but Placitator exactor totius Regni in the Monk of Worcester His continuer addeth also that the Peace or League with France in this Kings time was made by Parliament Consilio optimatum and that by advice of Common Council the Custody and Constableship of the Castle of Ros or Roch with its Ford c. were setled in the Arch-Bishop and Church of Canterbury with leave to build a Tower and divers other Priviledges for the Militia I must not mention the Orders of King Henries Parliaments against Money Clippers and corrupters with such a change of Money as made things very dear So dear a time that an Horse-load of good Wheat could scarcely be bought under six shillings as Henry of Huntingdon and others Of King Stephens Election more when I shall discuss the Right of Succession to the Crown But I must not omit that which of him is Recorded by so many good Authors That he did prohibit the Laws brought hither from Rome And this also by Parliament as Bale affirmeth But of this in much older writers Frier Bacon is one in his Compendium of Theology or his opus minus and the great Reporter citeth it from Bacons impedimentum sapientiae He was a very Learned man and a most genuine Son of Art his Opticks and his Burning-glasses would be more enquired after for they may be little worse than those of Archimedes who in this is newly found to go beyond himself Such Glasses must be Conick Section and in Concaves not exactly Circular but parabolical for which there is as real Demonstration by the Law of Reflections as for the best perspectives by refractions in Ellipses and Hyperbolies to which I must not add that Mirandum Naturae of two lines that approach nearer
And a while before the Abbot was made a Bishop at London petente Milone Constabulario favore Populi utriusque Ordinis that is the Lords and Commons or rather the Clergy and Laity In Huntingdon we read of Robert Arch-Deacon of Leicester about this Time Elect Bishop of Lincoln Rege Clero Populo summo gaudio annuente And a while after he shews us the King at London in a full Parliament disputing the grand question of Appeals with the Romish Legate For such Appeales saith he had not been used in England till That Henry of Winton the Legate had cruelly intruded them Malo suo crudeliter intrusit The Monk of St. Albans borroweth from him and sometimes repayeth with interests As in that Statute for Priviledge of Churches and Church-yards with all the Clergy so that none but the Pope could absolve from violence done to such in which they all agree he added also another Act of the Parliament that Plowes in the Field with Husbandmen should enjoy the same Peace or priviledge as if they were in a Church-yard His Geffry de Mandevil Consul or Comes was a very great man de magna villa For he speaks of his Princeps Militiae and of another that was his Magister peditum But in Henry of Huntingdon we find him at length clapt up in Prison but scarcely secundum jus Gentium Rex cepit eum in curia sua ex necessitate magis quam ex honestate Hoveden hath of him the like expressions adding also that from a Baron he had been raised to the degree of a Consul that is an Earl For in him the Earl of Flanders is Consul Flandrensis and the Earl of Anjou Consul Andegavensis This was he that come to be Hen. the 2d who at his Landing being Duke of Normandy coyned money which passed here by the name of the Dukes coyn Nor only he but Omnes potentes tam Episcopi quam Comites Barones suam faciebant monetam and of this Nubrigensis Which may be compared with the Saxon Laws of King Ethelstan and others As K. Hen. monetag common In the same Huntingdon we also read that by the Mediation of Theobald of Canterbury and Henry of Winton the King was so reconciled to this Duke and Earl Henry that they never more discorded also that the Duke was made Iusticiarius Angliae next under the King omnia Regni Negotia per eum terminabantur But in Polydore we find this Pacification made by Parliament Cujus Authoritate pactio facta est Matthew Paris is so full of Law Terms that I could beleive him in this to allude to the Law Fines and Recoveries For at this peace he telleth how the Kingdom was again Recovered And after a disgression to Merlins Prophesie in which the phrase of Vice-comites may be duly considered he concludeth thus a War that had raged 17 years together was now quieted by such a Time hoc fine quievit To which he adds that famous story of the Souldier that in this Vacation made a Voyage to St. Patricks Purgatory And by that occasion he relates the best description of Hell or Hellish Torments that I remember in any Historian of credit With which may be compared divers others in the same Author But that which is added at the Souldier return to the King may be added also to what is observed before touching Irelands dependance on England For the same Souldier was again sent by King Stephen into Ireland to be Assistant as an interpreter to Gilbert who had a grant from hence to found an Abbey in Ireland Whither he also carried this Souldier speaking Irish and with Tears he would often relate his Voyage to Hell Which is so recorded and asserted by divers Religious men To K. Stephen's Militia we may also refer that which so many Historians Record of his damning the Hidage or Danegeld Which yet was not his Act but the Parliaments that did Elect and create him King We must discuss it more fully ere long but now for Danegeld we may assert it to be expressed in his very Coronation Oath on which he was admitted One of the clauses was that he should for ever desist from that which had been paid to some of his Predecessors singulis annis And Wendover or Paris express no more But in Hoveden and Huntingdon Dane-geld is expresly specified which both affirm to be then at 2 s. the Hyde They agree also with others That this was again specified in Parliament at Oxford Where the King did again confirm his Coronation Oath Matthew of Westminster doth also Record that of these promises or Oaths he made a Charter which seemeth to be that Charter which the great Reporter in his 8th part affirmeth to be yet found in an old MS. de antiquis Legibus And that the said Charter among divers other things doth expressely confirm the Laws of K. Edward and of K. Henry Nay the Monk of St. Albans affirmeth that in Parliament Congregatis Regni magnatibus he did there solemnly promise to meliorate the Laws or make them better as they should desire or require juxta voluntatem Arbitrium singulorum which we may consider again upon occasion Nor must I omit that much of this very Charter is yet to be read in Print in an old Monk that lived in King Stephen Time and those particulars for confirmation of all good Laws and in special those of King Henry with divers other things that are worth perusal It is in the Monk of Malmsbury but a little after the Letters written to the Pope about King Henries death confession absolution and Anoynting by the Elders according to what was let to the Church by the Apostle St. Iames as in those Letters is more fully expressed Which may be added to that before of the Church Elders Polydore telleth us that in full Parliament at Oxford King Stephen did abolish that which had been oft exacted for Hydage per singula jugera and that he intreated another Parliament to carry on that War which by their Advise and Councel had been undertaken in the Name of Common Wealth Reipublicae Nomine vestro cum Consilio tum Consensu susceptum est and his desire to them was so to act in Person that the People might not be burthened with Taxes And at his end Virgil addeth that for all his continual Wars he did exact little or no Tribute from the People So that the Parliament it seems did wholly manage his Militia From a long Storm at Sea we are now come into a quiet Port and a calm Haven such were the Thoughts Expectations and Hopes of All in Henry the 2d We have his Laws in Print in several places and his Lawyers known enough For who needeth to be told of Glanvil in his Reign of whom before and much I might add from divers others besides Hoveden Who by occasion of that Judges Name hath not only given us a Copy of St. Edwards Laws but hath also asserted their confirmation by
bring any Letters of Excommunication or attempt a Voyage beyond Sea without a Licence And for sequestration of the Peter pence till further order If that I have cited already were not clear enough for Parliament in these we may have more from Wendover or Matthew Paris where we are expresly told that the great meeting at Clarendon of which before was made up of a Lord President de mandato ipsius Regis with Arch-Bishops Abbots Earls Barons and to these also are added Proceres Regni which may here speak the Commons as in Hoveden Populus so often expressed of that Parliament For it may be remembred that Virgil himself doth acknowledge the Commons also to be very frequently called to Parliament from the time of King William as we may read in his large description of our Parliaments in Henry the first To which also for this Parliament at Clarendon we might cite very many Historians besides Gervase and the Quadrilogus or Becket's Life by 4 cited on Eadmerus and in Ianus from which there is much to be added to that in Matthew Paris Where it is also asserted that these Constitutions of Clarendon were not only agreed but expresly sworn by all the degrees of Parliament Episcopi Clerus cum Comitibus Baronibus ac Proceribus cunctis Iuraverunt c. as also that these were but a Recognition or Recordation of some part of the Customs and Liberties antecessorum suorum Of which also Florilegus thus coram lege Magnatibus facta est Recordatio regiarum Libertatum Consuetudinum Cui Archiepiscopus assensum non praebuit c. Nor would it be hard to shew very many if not all of them agreed in Elder times Of Foreign Appeals we spake before and the Writ Ne Exeas Regnum is as old as Rufus if we may beleive Polidore or better Authors To that of Appeals from Ecclesiastical Courts to the King or Delegates I can add very little to what is in Caudries Case in the 5th part of the great Reports with the preface to the 6th That against Excommunication of the Kings Tenants or as the Elder Law was of the Barons is cleared enough in the Notes on Eadmerus from the first Norman Records To which may be added a Law of Henry the first of the Wills or Legacies of his Barons vel Hominum with which the Learned Ianus compareth an Old Law of Canute and toucheth the power of the Ordinary in Case of Intestates which is prescribed from most antient Parliaments but the Original doth not appear I must not spend time in heaping up the many proofs of Parliament for the Assizes of Clarendon which were again renued at Northampton Hoveden is large and clear for them all and for the Circuits and Iudges in Eyre by full Parliment Communi omnium Concilio But the Mirror and those that write of Alfred will afford us these in many older Parliaments From that Assize of Arms for every Fee we may learn to expound the Statute of Winchester and others speaking of a former antient Assize which is here found at large To which I may add that what is here spoken of the Iustices presenting to the King may be expounded to the King of Parliament As is fully expressed not only in Fleta but in the said Statute of Winchester The Iustices assigned shall present the dafaults at every Parliament The defaults of Arms for the Militia And by this time I shall not need to speak of Escuage in H. 2d assessed by Parliament for Tholouse Wales and Ireland of which Gervase the red Book in the Exchequer and Matth. Paris with the Notes of Hengham To which I might add Matth. of Westmin de unaquaque Carrucata terrae totius Angliae quatuor denarii Concessi sunt collecti for the Holy Land But when he had the offer of the Kingdom of Ierusalem Convocato Clero Regni ac Populo it was rejected Concilio universo as the Monk of St. Albans speaketh Of K. Rich. Coronation and his Oath before the Nobles Clero Populo Hoveden is very large From him it may be found in others And of the Jews in those times to whom he was a Friend as his Charters shew and very sorry for their sufferings who did help him much for his Eastern Wars as some relate with Polydore See Mr. Selden on Arundeliana Marmora his great Charter to the King of Scotland of many Liberties for which he did recieve 10000 Marks but still retaining the antient Dues to this Crown is every where For which I must not forget what was before in H. the 2d Malcolm became his man 't is said and did him Homage but on some disgust he was not Knighted by our King as was wont and Matth. Paris addeth also that the Scottish Kings Horse was the English Marshals Fee at such a Knighting But Hoveden telleth us that about two years after the same King came again and was then Knighted by King Henry Of his Parliaments and their Power in War and Peace I might cite very clear proofs The League with France was agreed by both Kingdoms Archiep. Episcop in verbo veritatis that was the mode in those days for them as for the Lords since in verbo Honoris Comites Borones Regnorum praestito Sacramento juraverunt And his Sea Statutes were made de Communi proborum virorum Consilio as the Charter it self expresseth it in Hoveden Wendover or Matth. Paris Who doth add that per Consilium magnatum there were made Iusticiarii super totum Navigium Angliae c. Which with divers Records of H. 3d. may be added to the Admiral or Saxon Aen mere eal Over all the Sea How the Lord Chancellor being left the Custos Regni did on pretence of the Kings Warrants pole the People is at large in Hoveden and others But in the Monk of St. Albans we may read that er'e long in Parliament of Commons also assensu Communium definitum est it was enacted that none should so domineer in England to disgrace the Church and oppress the People And that all the Castles which the said L. Chanc. had committed to his Clients or disposed without the Parliaments assent should be presently delivered up and in particular the Tower of London where he then was and was glad to yield and make his peace with much submission for to save his Life For which also Polydore Virgil is worth perusing And in him we also find the North committed to the Bishop of Durham who of an old Bishop was made a young Novice Earl but he paid dear for his honour and how the Chancellor excused himself by the Kings Command As if saith Polydore the Kings Command might disannul the Law Quasi fas esset jus omne principis jussu rescindere Of the Kings Voyage to the East I shall not speak nor of the famous Prophesies he found touching Antichrist and the Revelation They are in Hoveden besides all others Where we also find him ransomed
by Commune assent in special of the Clergy And for this Walsinghams Neustria may be added to others in the Road and at his return he is again Crowned before the People as well as the Lords Consilio Procerum Yet Polydore with others is bold to charge his Reign with great exactions on the Clergy in special for his ransome but himself yeilded that the King did send the Bishop of Salisbury into England that by the consent of Parliament Regii Senatus Authoritate he might get his Ransome And himself yeilded that at his return there was a Parliament wherein the King thanked his People for their Faith to him and for that they had helped him in his Wars and Imprisonment And that Ejus Nutu Archiep. Cantuar. was conferred on the said Bishop of Durham and that the Chalices c. were again restored to the Churches and that the Laws with weights and measures were then also corrected or amended K. Iohn's Election must be discussed in another place Of his Military Aids Paris with Wendover is clear that they were granted in and by Parliament Convenerunt ad Colloquium apud Oxoniam Rex magnates Angliae ubi concessa sunt Regi Auxilia Militaria de quolibet scuto duae marcae dimidium Nor are the Records wholly lost of his Parliament summoned about a War with the French or rather defence against them and his Writs are known enough They speak consent of Parliament provisum est de communi assensu Archiep. Comitum Baronum omnium Fidelium nostrorum Angliae quod novem Milites per Angliam inveniant decimum bene parat ad defensionem Regni Besides the Rolls this is found in the 9th part of the great Reports and in divers others His Charter is now so well known in Print that I need not cite any clause thereof No not that so clear for the Militia Nullum scutagium vel Auxilium ponam in regno nostro nisi per commune Consilium Regni nostri Yet I may add that the Aides there excepted and called Reasonable being such by Common Law were afterwards assessed and ascertained by Parliament For which the first of Westminster may be compared with the 25 th of Ed. 3d. and in the 14 th of that King his Aides were remitted by Parliament because for his Wars he had taketh other Assistance than was due by Law which was much excused by himself and divers other Kings And for this I might cite the 48 th of H. 3d. the 25 th and 31 th of Edw. 1st the 10 11 12 and 13 of Edw. 2d the 19 th and 20 th Edw. 3 d. who did buy Souldiers rather than Press them as the Roman Historian of the declining times of that Empire Of the Barons Wars I must not speak a syllable they do deserve a discourse by themselves and it may be possible er'e long to see it Now I shall only observe that our great Charter was rather the Cause or occasion than the Effect of those Wars For had it been so kept as it was made the Crown might have rested in peace enough They which perswade others that this Charter was first created by King Henry and extorted from him only by a prevailing Sword seem not to consider so much as its Title as it now is printed where we find it granted in his 9 th year Although it was so ill performed that it needed confirmation afterwards Matth. Paris is very clear and plain in this that it was wholly the same or exactly agreeing with that of K. Iohn in nullo dissimilis Nay he speaketh of K. Iohns Charter quas sponte promisit Baronagio Angliae and again in K. H. 3 d. sponte liberaliter concessit And the Popes Letters tell us of K. Iohns Charter granted most freely Liberaliter ex mera spontanea Voluntate de Communi consensu Baronum suorum c. Besides the very words in one of those Charters spontanea voluntate nostra dedimus concessimus pro nobis Heredibus nostris Libertates has subscriptas Nor were these new priviledges then first Created by him But the old Rights of the People by long and ancient Custom as we may find at large also in Wendover with Matthew Paris where they are not only Antiquae Leges consuetudines Regni but we are also told they did present the great Charter of H. the first with his Laws and St. Edward's And to these the Barons sware as the King had also done before For so we read their Covenant was that if the King would break his Oath a juramento proprio resilire which they had some cause to believe or suspect propter suam duplicitatem yet they would keep theirs and would do their best to reduce him to keep his Virgil is also clear in this who telleth us K. Iohn's Troubles and proceedure from his not restoring K. Edw. Laws as he had promised And that the Barons urged him ut promissas tandem aliquando Lege daret and again they ask for their Antient Customes vetera instituta quibus olim Reges Pop. Angl bene rexissent and the close is quae ille prius recepisset se sanctissime observaturum And for Henry the Third the same Author affirmeth that instead of his granting ought that was new the People granted him that grand Prerogative of Wardships which that King accepted with many thanks adding also that the People did not intend it for his Successors But of this I may speak in another place I shall now only adde that if there be not yet enough said from all the Saxon Laws and Histories with the first Norman Confirmations and Explications to assert the Great Charter to be more Antient for its matter than K. Henry or K. Iohn I shall only desire those that are yet unsatisfied they would please to peruse the 2 d. part of the Great Institutes or at least so much of it as speaketh of H. 3 d. and Edw. 1st And it may be they will not wonder that at the Prelates motion that Bastards might inherit the Parliament at Merton cryed out so loud nolumus Lages Angliae mutate c. To which also besides the late Declarations of this Parliament and the Petition of Right may be added the Learned arguments of those Grave and Honourable Judges to whom we shall ever owe so much for standing up in an evil day for Truth and Common Justice in the Case of Ship-money Sir Richard Hatton Sir George Crook and Sir Iohn Denham with the truly Noble Oliver St. Iohn Lord Chief Justice of the Common Pleas. Their Arguments are now in Print by publick Command Nor may I presume to add a word in that subject Nor shall I speak of the times following the great Charter which was confirmed more than thirty times in full Parliament with many special Provisions for the Militia It being most just and reasonable that what did so much concern all should be considered by all Quod omnes tangit
ab omnibus approbetur Which is one clause in the Writ of Summons to Parliament about a War with France in Edward the First Which seemeth to speak a necessity of Parliaments for matters of War Not only for Money as some have pleased to speak or at the Kings choice to call them if he please The Writ speaks an Act of Parliament Lex justissima provida circumspectione stabilita not let at loose to the Kings pleasure but as Fortescue or long before him the old Modus of Parliament maketh it necessary for the King and his Duty to Call a Parliament in all such Cases Nor shall I need to add what Paulus Iovius Froisard Comineus de Serres and the Duke of Rohan with many other strangers have observed of our Parliaments in this which is the Law of Nature rather than of England For as in the Heavens or great World we did before observe Mars or the Genius of War to be there placed immediately under Iupiter the great Councel and not under the Sun So in the Microcosm or little World of Man we find both Spleen and Gall within Hands and Feet without at a good distance from the Head and never joyned to it but in Monsters Yet it is true that some Creatures have Horns on their Heads but they are Beasts and not Men. Much less Kings I hope But did we Labour Toyl and Sweat so much to keep a little River in its bounds that so we might be drowned by the boundless Ocean Or be swept away at once by a destroying and devouring Deluge Did we scruple at a little Gravel or a Pebble that we might be crushed by a Mountain Would we strain at a Gnat that we might be choaked by a Camel or be swallowed whole by Behemoth It may not be at least it may not seem enough to quiet trembling minds to say or prove by arguments there shall be nothing done but what is just except we also see or know the way and means and usual course our Governours will please to take in doing that which may or is and ever shall I hope be just The way must be both Right and Clear as well as is the End And of the two Unjust and Arbitrary Power doth seem to be in Processe or in ways and means much rather than in Ends or Things that be effected by it Sure it was at least it might be good to build a gallant Fleet of Ships and so it might be just that each should contribute a part to such a publick work Nor was it only that which then was taken from us for a Ship that made us sigh and groan and cry or fear our Ruine or a universal deluge of Oppression But it much or mainly was we did not see the way or mean or Legal Process which the Court did take in Taxing or Assessing such a Place a County or a Person And it was but thus in Loans and so in divers if not all the things we so abhorred in the Crown the thing did not so much displease as did the way or means to such or such an End I need not say how curious or how scrupulous and tender still our Laws have been in pointing out the Way as well as End the Process in the Courts of Justice as the Final Iudgements So that indeed the very Form and Life and Power or Substance of the justest Laws doth much consist in Processe which by some may be thought a shadow or a Ceremony left at pleasure for a blustring Wind or any furious hand to shake as much as long as it shall please And then to salve it up by saying to the Root We mean you Good and do but lay you bare that so you may the more behold and more admire our Iustice in the End when all the Boughs and Branches shall be gone that do but hinder all your Prospect I must but Touch and glance There is a Trinity which all our Laws do seem to Worship here on Earth Estate Liberty and Life Of all Estate the Dower of Widows hath the greatest priviledge For which the Comments upon Littletons first and fifth with the Statutes of Merton and some clauses of the great Charter it self for Quarentine and Dower are good glosses on the Saxon Laws or those already touched and I shall not add one syllable All Estates have priviledge in Law and all Amercements must be such as may consist with mens Estate from Alfred Edgar Ethelred Canute or Edward it did come to Henry the first and thence to the Great Charter Where the Law is plain and clear No Free man shall be Amerced but according to his Default and Estate Salvo sibi Contenemento suo Which is so branched that it reacheth to Villains also though it speak at first but of Free-men Hence the Name of Amercement because it was and ought to be an Amerciament or a merciful Fine In which the Saxons went beyond us in their Weregylds and Divers Wytes for which Fleta may be a Comment to the Laws of Ethelstane and others of the Saxons All this for End but what must be the Way How shall it be imposed so that it may as it should be merciful 'T is miserecordiu Regis as the Laws and Books do speak but the King doth not may not Fine or Amerce any but in and by his Courts of Justice So that to render ones self to the Kings Judgment is to no effect and so adjudged For as the Father judgeth no man so the King who is or should be Father of the Country but he hath committed all judgment unto Men that are our Fellows Pares in the Courts of Justice VVhere indeed the King did sometime sit in Person yet the Court did Judge and not the King as Fortescue doth plainly tell us And the Judgment still is entred from and by the Court and not the King Ideo consideratum est per Curiam And so the great Charter saith we will not go upon him nec ibimus nec mittemus but by Legal Judgment of his Peers vel per Legem Terrae and of this last clause I never saw a fuller Comment in a few words than in Mr. Seldens Notes on Attaint in Fortescue But of all Iudgments to be made by Peers somewhat was said before in Henries Laws and more again ere long And for Fines by Courts of Justice not by the King and Amerciaments by Peers besides the Comments on Magna Charta there are divers Book Oases cited from Henry the fourth Henry the sixth Richard the third in the fourth part of Institutes Kings Bench To which may be added Greislies Case in the eighth part of Reports And the first of Westminster doth add to the great Charter or at least explain it in this But the Mirror will tell us it was an abuse not to expound it so largely before And although the VVrit de moderata misericordia in the Register and N. B. be founded on the Statute yet it seemeth clearly but
Charter with the Statute of Marlbridge and the first and second of Westminster To which we may add the old Records cited by the great Judge on Littletons Rents and Releases for Minors and Women with Child being excused from Imprisonment not only in Judgment on Trespasses but an Appeal of Robbery More curious yet and tender is our Law in all that toucheth Life The Mirror is full of Complaints that in his time and Horn did live about King Edward the first or rather the second for he nameth Edward the first some sins were made mortal which were but Venial At was Rape with him till Edward the first But none saith he can make a Venial sin mortal by any Statute without consent of the Pope and Emperour And besides the Saxon Laws cited before it is considerable that one the first Normans called Conquerours Laws so often confirmed since was this that no man should be hanged or put to Death for Treason or other crime but lose his Eyes or be exect or some way dismembred that so he might be a living Monument and spectacle Proditionis nequitiae And of such there are many precedents and of some Banished but of very few Hanged or put to Death till about the Time of Fitz-Osborn cited before And Rape was punished with loss of Eyes and exection in Bracton before the Statute of Westminster The second but in Glanvil it seemeth to have been as mortal as Murder or Burning From the Monk of Malmsbury we find that the Laws of Henry the first did punish this and Theft with loss of Eyes and exection But of this Mr. Seldens Ianus and his Notes on Hengham shew the like Customs continued in Winchester and Walingford Hanging is a late punishment for Theft but some kinds of Felony did lose the Head And for Adultery the Woman of old did lose her Ears and Nose but she was burnt to Death for killing her Husband which Caesar also observed of the British Gaulish Druids But our Ancestors allowed Bail in Cases very high and hienous we must speak of Treason in another place that I say nothing of Sanctuary Abjuration and Clergy which was much larger than later Statutes have made it But of this for rhe Peers in special although they could not read see the first of Edw. the 6th and a later Statute of King Iames for burning and whipping of Women who could not be Clerks as men It may be considered how our English mercy may be continued some other way if this be put down Which is very disputable and the plain truth is it was much at the Ordinaries pleasure For they were not fined for refusing to come before the Justices who yet might reprieve the Prisoner in case of such Refusal And in Case of Sacriledge it hath been declared at the Ordinaries choice to give or deny Clergy for which an old Record of Edw. the 3d. is to be added to Poulters Case with Cawdries and Biggens in the 5th part of Reports This Case of Sacriledge is very considerable being of all the most forlorn for being denyed the Priviledge of Sanctuary it could not Abjure For this was Appendant to Sanctuary whither the Offended did first fly and then Abjure By the old Law the person Abjured must banish himself into a Forreign yet a Christian Country But in Henry the 8th he was removed to some other English Sanctuary And in K. Iames if it is taken away but what was allowâ—â— in 35th of Elizabeth which remaineth yet without Sanctuary for ought I know But to all Antiquities for Abjuration and Sanctuary in the Mirror St. Edward's and the Saxon Laws may be added those of Molmutius the old Britain so long before Christian Religion Of whom before and yet again ere long Pain fort and Iure the pressing punishment in case of standing Mute in petty Treason and Felony with Martial Law are not so old as our Ancestors Mercy Yet in this they are merciful that they do not forfeit Estate or Attaint and corrupt blood as do other Capitals But when shall we live to have no need of that Novel Pressure of Law Martial When shall we again return to our Fore-fathers tenderness in all of Blood And that not only in Pitty but Policy both in this and other Nations Who could else have made no great Title to many of their best slaves in Gallies and other employments Which yet were not so good as our Mines might prove if at least they were known how to be found used and improved As they may and shall I hope ere many Ages more are lost or worse than lost in hating spoiling killing and devouring one another But of all little Islands near us the Isle of Map a very Famous place of old and a distinct Kingdom of it self though Appendant to this Conquest seemeth to be worthy of Enquiry for their Laws and Customs Which are very much more compendious than Ours in some Cases of Law with all Pleadings and Process In Criminals they have strange Customs it being with them more Capital to Steal a Pig or a Capon than an Horse or an Oxe One reason is because they love plain dealing and be open-hearted and they hate the man that Steals and Hides much more than him that doth it in on open way I find it in a very good Author and a great Lawyer who reporteth them to be industrious and religious true and very free from begging or stealing All Controversies are determined in little time with less Expence Pleading or Writing Yet in Cases of unusual Weight and Doubt they have recourse to Twelve they make and call the Islands Keys being above their common Deemsters whom they choose from among themselves Their Bargains are compleated and comfirm'd by the giving and taking of as mean a matter as a Straw as of old also per traditionem stipulae from whence the phrase of stipulation came But these were moulded also by our British Druids or of later date our Saxon Ancestors I need not speak how curious our Fathers were in all their Process touching Life The Way was still as punctual as clear and plain as was the End They loved to be just and to do justly Doth our Law condemn or give power to condemn any man without Hearing or due Summons to Judgment I hope it never will A Great man of a good Name standeth upon Record as by Parliament condemned to Death without Hearing or Legal Summons But there is a Blush or a Vail of Oblivion drawn upon it by good Writers as a stain and a shame to the Parliament Rolls yet as a just judgment on him that had first moved that another might be so condemned And he so perished by that Law which he would have made for others This seemeth also to be written in the Law of Nature And doubtless the Sins of Sodome were as notorious to God in Heaven as any others can be to Men in Parliament And yet He would and did go down to hear and
men Trustees to the whole Kingdom and Neighbours to the Fact or Party or both To which also there must be a legal proof by lawful Witnesses or else the Charge will not suffice And in such Indictments from the Commons the Lords are the Tryers and the King may seem as the Iudg but in other Courts also the Judgment goeth of course upon the Verdict and must be entred per Curiam as adjudged by the Court although there be but one Judge or tho' his Mouth pronounce not the Sentence But we are not yet come to debate the King's Consent to the Lords Judgment an Indictment from the Commons It is also to me very considerable how the House of Commons could or ever did Indict I cannot deny them to have been a Court and a Court of Record although some have seemed to question it and their Records are not so ancient as some others But I have not fully understood how they ever did make or receive a Formal Legal Indictment when as they did not give a single Oath much less Empannel a Iury or Enquest Yet some there be that without a Writt or any written Commission did and might do this Virtute Officii But they be known chosen sworn Officers of the Kingdom for such Purposes as the Peeples Bayliffs Coroners Sheriffs Escheators and some Officers about the Forest who by the Common Law did Summon and Empannel Juries But so did not the House of Commons How then did they Indict Of all Crimes committed in the House they are and were so much the sole Iudges that they seldom use to complain much less to Indict any other And for any thing done abroad I hope they do not use to take Rumours and Reports though from their own Members to be sufficient for or equivalent to a legal Indictment on Oath Seeing their scarce is or can be any Case so notorious but it may be pleaded unto by somewhat of Law or Necessity And although I should yield the Commons to be the Masters of the Law in making it yet they pleased to allow others to be Iudges in their Laws And if they reassume this also yet it may be more easie to judge of some Law than of any Fact at least as it may be cloathed so as a curious search or Enquest may be requisite to lay it clear and naked Neither can I see how it may be necessary to proceed against any by force or illegal Process when it is easie as well as just to go rightly as to do right For who can imagine a Case so dark and intricate but it may be contrived so that particular men may be Accusers and others Witnesses with a clear and real distinction between Indictors Tryers and Iudges most of all in Cases notorious and evident For in such there may be less fear of the Iuries Verdict against Evidence or of the Iudges Sentence against the Verdict Or if this should happen in a Tryal is there not a most heavy doom appointed by Law for all Iurors that forswear themselves and goe against their Evidence Is there not a clear way of Relief by Writ of Attaint Is it not worse than Death to forfeit all Estate and be thrown into Prison while both Wife and Children must be turned out of Doors and All For his House must be pulled down his Ground be plowed up and his Trees rooted out with loss of Franchise and with a perpetual Brand of Villany This is the Common Law for a perjured Iuror and that also in Petty Cases how much more might it be just in Case of Life and Death And for Corrupt Iudges our Law is very severe altho' we have much lost the Custom of the Grand Eyres in this also King Alfred be long since dead who hanged 30 or 40 more unjust Judges than Cambyses flead And for that the Mirror may be a good Comment on some Passages in Alfred's Life by Asser And if it be true that Horn lived to the end of K. Edward it is much wonder that on such occasion he did not also mention some of those Judges by him so punished when there was scarce any left but good Iohn of Mettingham and Elias of Bechingham And of this the Dissertations of Fleta may be added to all before as that of Sir William Thorp and the Great Judg in the third Part of Institutes about corrupt Iudges and the Iudge's Oath It is very considerable how curious the Iews were in Creating or rather Ordaining of Judges For indeed the Phrase of Ordination seemed to be first raised from Them For which I have little to add to Mr. Selden on the Eutychian or Alexandrian Antiquities as old as St. Mark the Evangelist Nor can it be denied but the Jewish Judges and Magistrates had a very good Right and so used as we find in the Books of Moses and the Kings and Tirshatha's to Read and Expound the Law Moral as well as Iudicial Nay in this they seemed to have some advantage of the Priests or Levites that had work enough most times in that which was but Ceremonial This may Expound those Pieces of Scripture Old and New where we find some explaining Scripture being neither Priests nor of the Tribe of Levi. And the Iews Punishments of evil Judges are severe and most remarkable nay where all others were again restored to their Offices after Corporal Punishment their Lord Chief Iustice or President of their Sanhedrim or any Chief Iustice could never be restored again after such punishment no not to be as one of his inferour Colleagues So just he ought to be and circumspect by daily experience added to his own wisdom Our Laws are so just and so good in themselves that there could not be be so much cause of complaints in all our Gates for such were the Iews Courts of Iustice if our Judges were such as they should and might be And yet I cannot deny but that there be very great abuses among the Lawyers and Attorneys or Solicitors but if the Judges were as just and wise as they may be inferiour Officers would soon amend or comply for Love or Fear so much as would prevent Complaints and many of their Causes But it is the work of a God and not of a Man to reform abuses in all Courts of Justice Hercules did never cleanse so great so foul a Stable or a Stall yet in this also a wise and just Parliament will do much and will need none of my help or advice How tender all should Delegates be in making Delegates But in nothing should they be more tender or more circumspect then in this of making Judges For in these of all Delegates our law is most scrupulous Before the Statute of Merton those that held by suit Service were bound to appear in Person because the Suitors were Judges in causes not their own but by that Statute they had power given to make Attorneys but it was only ad Sectas faciendas to make or follow
appear on Record the Party must produce the Iudge's Seal which may be required by Writ and cannot be denied no not in such Exceptions as the present Court do over-rule And for Enrolling Records the same Statute provideth That the King should not Erect Offices or Elect Officers for Enrollment Fot that by the Common Law this did belong to the Courts themselves and Judges therein As to the Sheriff also to Elect the County Clerk for Enrollments so that the King himself could not Elect him as we find in Mitton's Case So punctual is our Law in all concerning Rolls Enrollments and Records Which is also the Law of Nature and for many Reasons As for that of Appeal to which all Courts on Earth must willingly submit Nay Heaven it self admits Appeal from its justice to its mercy so it would to Justice also by some Writ of Error if it could commit an error But however that its Judgments may be cleared to be just it also proceedeth by Record For God hearkeneth as the Prophet saith when ought is good when they meet and speak well together a Record is made and bound up as a Jewel and when evil also some are Watchers to Record it For the Books shall be opened and we shall all be judged by the Record of Heaven and our own Consciences which are now foul Draughts but shall then be as fair and clear as those of Heaven it self But in Courts on Earth if there be no Records there is scarce devisable a legal Traverse or Tryal whether all be right or appeal if any thing be wrong For what Appeal can any man make from that which doth not appear but it is only a Transient Air or Breath which may as soon be denied as it was spoken How can Errors not appearing be corrected or amended by the Parliament it self or any other Court but onely that keepeth Records of all our thoughts as much as of our words or actions I may be tedious in shewing how our Law hath ever allowed Appeals in Ecclesiasticals They were agreed in the Assizes of Clarendon in opposition to Appeals Foreign which were first attempted by Anselm as some affirm but the Date is later And the Lord Dier of Appeals is now printed in the 4th part of Institutes The Judgment of Delegates on such Appeals is called definitive And yet not so but that it may be all redressed by a Court below the Parliament for which we have the Commission of Review granted upon the Delegates nay and upon High Commission it Self as by a Clause in that Commission appeareth To which may be added Killingworth's Case and divers others Of the Court Admiral much I might add from the Laws of Olerom in Richard the 1st and the Rolls of Henry the 3d. and Edward the 1st of which also the Commentator on Littleton's continual Claim and the 22 Chapter of the last part of Institutes How it lieth open to the common Law and to daily Prohibitions may be fully seen in its Complaints to King Iames which were as fully answered by all the Judges It is no Court of Record and so did all the Judges declare in 8 Iacobi yet it must keep Records enough to ground an Appeal which lieth from thence as from Courts Ecclesiastical to Iudges delegate of which the 8th of Elizabeth and other Statutes County Hundred Baron Courts and those of Antient Demesne with all Close Writs are not of Record The Sutors are the Iudges as was said before in Cases not their own And some have thought they did proceed much by fancie without legal Proof and Witnesses till the great Charter commanding all Bayliffs to put no man upon Oath without faithful Witnesses But we have found the Charter long before King Henry the 3d. And in that Phrase of Bayliffs which in France are Governours and Magistrates as in eldest Towns or Cities with us some great Lawyers include all Iudges as Fleta with the Mirror which also calleth Coroners the Peoples Bayliffs and the Sheriffs Returns are de Baliva These inferiour Courts being not of Record held petty Pleas of Debt or Damages under 40 s Antient Demesn had other prviledges but not of forceable Trespass Vi Armis finable to the Crown Yet these also must keep Copies or some such Records as may suffice for Appeals For they may be questioned and their Proceedings being denied shall be Tryed by Iury and upon their judgments lyeth a Writ of false judgment not a Writ of Error But in the Case of Redisseison the Sheriff is Iudg by the Statute of Merton and a Writ of Error lieth on his judgment But in Case of Debt Detinue Trespass or other action above 40 s. where in the County the Sheriff holdeth Plea by force of a Writ or Commission of Iustices the Sutors are still the Iudges and no Writ of Error but false judgment lieth on them Nor doth the Coroner's judgment of Out-Lawry in the County Court forfeit Goods till it be returned and appear on Record Nay the Coroners Certificate on a Certiorari did not disable the Out-Law although the King might seize his Goods till the Return of the Exigent Quinquies Exact But a Writ of Error is proper to Record and from Record and a Plea of Nul tiel Record is not tryable by Witness or Iury but onely by it self in a Court Record Such are the Sheriffs Turns and from them as from Counties Hundreds came the Court Leets which may be held by prescription against the Great Charter In which Leets the Steward is Iudg as in the Turns the Sheriff and Bishop was till the first Norman who by Parliament exempted the Clergy as was touched before But the Laws of Henry I. bring them again into the Seculars So also the 10th of Marlbridg and before it the Laws of Clarenden for all Barons or Tenant in Capite to attend the Great Court till Sentence of Life or Member which continued long in the Parliament also The Turn enquireth of Common Nusance and of Felonies de Furtis medletis whence our Chance or Chaud Medly hot Debate or sudden Fray see the Notes on Hengham but not of Murder or Death of Man which alone of all Felony belongeth to the Coroner He was a very antient Officer and ought to be made a Knight for which the Register and Rolls of Edward the 3d. where a Merchant chosen Coroner was removed quia communis Mercator He must have a good Estate and might receive nothing of Subjects fot doing his Office But by late Statute he hath a Mark on Indictment of Murder yet upon Death by misadventure he must take nothing See the Comments on the 1st of Westminster The Coroner's Court is of Record and he may take Appeals as well as Indictments upon view of the Body and must enter them but cannot proceed but deliver them up to the Iustices which is as antient as the Great Charter for the next Gaol-delivery or the King's Bench sometimes also he is locum
consilium quod Populo habeatur utilissimum And again In rem totius Patriae And that each should do as he would be done to Which it calleth the Most right Law And that the higher and greater men the Delinquents were by so much the more and heavier they should be punished Of which and of their Wergylds for all Ranks of men Again Iniqua omnia injusta quae Rex unâ cum Optimatibus exterminare decreverit abjiciantur c. That about this time Danegeld came to be paid to the Danes which was before against them is agreed by all Malmsbury is bold to ascribe it to a Decree of the Archbishop of Canterbury but Huntingdon may be his Comment telling us That Consilio infausti Siricii Archiepiscopi Edelredi 13. primum Statuerunt Angli quod ipsi Censum Dacis persolverent A clear Act of Parliament Of which also Florence of Wygorn And again Anno 1007. Rex Senatus Anglorum Dubii quid agerent quid omitterent communi deliberatione gravem Conventionem cum exercite fecerunt ad pacis observationem 30000 l. ei dederunt c. This also from Huntingdon And among the Saxon Laws we read Foedus quod Ethelredus cum exercitu Anlavi c. ex Sapientum suorum Consilio feriit And again Pacis foedus Ethelredo Regi omni Populo Leodsayre And again Socii ac foederati nostri omnes per Mare Terras in Portu extra pace fruuntor With divers other Passages of Peace and War setled by that Parliament Iornalensis addeth another Parliament in this King's time Apud habam Constituerunt omnes ut Regi suo pareant sicut Antecessores sui melius fecerunt cum eo Pariter defendant Regnum c. ut cantetur quotidie pro Rege Communiter omni Populo suo And again Prohibemus omnem Roboriam c. omnis Index Iustus Misericordiam Iudicium liberet in omnibus timeat omnis Iudex ac diligat Iudicem suum ne in die Iudicii mutus fiat humiliatus c. Nor may I forget the famous Judgment for the Bishop of Winchester by the Thanes and Ealdormen in the Witenagemote or Parliament of Eldred Quo dum Duces Principes Satrapae Rhetores Causidici ex omni parte confluxerant Of which the old Book of Ely cited by Mr. Selden in his Titles of Honour And for the Militia Roger Hoveden is very clear and full at the Danish Irruptions Qua recognità Rex Anglorum Egelredus his names are many suorum Primatum consilio classem Pedestrem congregavit exercitum And again Habito Concilio cum Regni suis Primatibus utile Duxit à Danis dextras accipere stipendium dare placabile tributum solvere And again Primatum suorum Concilio nummos ad Danos c. And again Rex Regni sui Primates ad illos Danos miserunt Legatos pacem ab iis petentes stipendium tributum eis Promittentes So is old Florence of Worcester Consilio Iussuque Regis Anglorum Aethelredi procerumque suorum de tota Angliae robustiores Lundoniae congregatae sunt naves And again Procerum suorum consilio ad eos Danos Legatos misit promittens tributum stipendium And again Omnes Angliae Primates utriusque Ordinis ante Pascha Lundoniae congregati sunt ibi tamdiu morati sunt quousque tributum Danis Promissum quod erat 48000 l Persolveretur And again Cum apud Oxonefordam magnum haberetur placitum c. eodem tempore Canutus cum magna classe c. Eadmundus Clito magnum congregavit exercitum c. So is Matthew of Westminster adding much to those before him and ascribing that bloudy Council of the Danish Massacre to one Huna Princeps Militiae qui sub Rege Regni negotia dispondenda susceperat cujus consilio misit litteras Rex in omnes Regni fines Mandans nationibus singulis universis c. Of which St. Edward's Laws But Oxoniense placitum is in Florilegus Magnum apud Oxoniam colloquium Anglorum pariter Danorum And so the old Glossary of Canterbury tenders Gemot by Placitum and Fologemot by Populi Placita So also Law-Mootes are Placita Magnum placitum the great Folo-mout or Parliament as Comitatus placita with Matth. Paris County-Courts parva placita Oxford Parvises I must not stay long on the Acts of Parliament which Angles Kynnes Witena made and established Cum Walliae Consiliariis de Monticolis Where among other things we find it enacted That Viri duo denijure consulti Angli sex Wallique totidem Anglis ac Wallis jus dicunto With which we might compare our Laws de Medietate Linguae c. But for our Trials by a Jury of Twelve we have a much clearer Law in another Parliament of Ethelred Frequenti apud Wanalingum Senatu Of which Iornalenfis and Mr. Lambards Glossary In singulis Centuriis Comitia sunto atque Liberae conditionis viri duodeni aetate Superiores una cum praeposito sacra Tenentes Iurante se adeo virum aliquem Innocentem haud Damnaturos Sontemve absoluturos An old MSS. thus Habeantur placita in Singulis Wapentakis ut exeant Seniores XII Thani praepositus cum eis Iurent super Sanctuarium quod eis dabitur in Manus quod Neminem Innocentem velint accusare vel Noxium Concelare But of more ancient Tryals by Twelve in fitter place although I must not spend time to confute the Italian who will have that terrible Custom as he thought brought in by the Conqueror The Proofs of Parliaments in Canutes time are so many and so full that they tire us altogether How he confirmed the Laws of Ethelred and other Predecessors we read in the Monk of Malmsbury who recordeth also his remarkable Letter from Rome directed to the Archbishops Bishops c. Primatibus Toti Genti Anglorum tam Nobilibus quam Plebeis As also his Charter to Glastonbury Cum Concilio Decreto Archipresulis Edelnothi simulque Cunctorum Dei Sacerdotum Consensu Optimatum Hoveden in full in this also Cujus Edmundi post Mortem Rex Canutus omnes Episcopos Duces necnon Principes cunctosque Optimates Gentis Angliae Lundoniae Congregari Iussit A clear Summons of Parliament And the very name of Parliament is found of his time in the old book of Edmunds-bury Rex Canutus anno Regni quinto c. Cunctos Regni sui Praelatos Proceresque ac Magnates ad suum convocans Parliamentum And again In suo Publico Parliamento And that it was indeed a full Parliament we may believe from the persons we find there at the Charter of that Monastery confirmed by Hardi-Canute but granted by Canute in suo Publico Parliamento praesistentibus personaliter in eodem Archiepiscop Episcopis Suffragenis Ducibus Comitibus Abbatibus cum quam plurimis gregariis Militibus Knights of Shires it seems cum Populi Multitudine Copiosâ other Commons also omnibus tum in eodem