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A44191 Lord Hollis, his remains being a second letter to a friend, concerning the judicature of the bishops in Parliament, in the vindication of what he wrote in his first : and in answer to ... The rights of the bishops to judge in capital cases in Parliament, cleared, &c. : it contains likewise part of his intended answer to a second tractate, entituled, The grand question touching the bishops right to vote in Parliament, stated and argued : to which are added Considerations, in answer to the learned author of The grand question, &c., by another hand : and reflections upon some passages in Mr. Hunt's Argument upon that subject, &c., by a third.; Second letter to a friend concerning the judicature of the bishops in Parliament Holles, Denzil Holles, Baron, 1599-1680.; Holles, Denzil Holles, Baron, 1599-1680. Letter of a gentleman to his friend.; Atwood, William, d. 1705? Reflections upon Antidotum Britannicum. 1682 (1682) Wing H2466; ESTC R17318 217,539 444

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within Frank-pledges and be bound with Sureties to their good Behaviour Which Dr. Brady tells us and rightly enough if he speak of the Time of Edw. 1. was only for the ordinary Free-men or the Bulk and multitude of the Free-men or small Free-holders All that look'd upon themselves as Gentlemen at the least were without any manner of Representation and wherever they were interested appeared in Person and sometimes in very disorderly Multitudes Some sensible of the inconvenience of it and expence and trouble to themselves of their free Choice became incorporated by Charter as aforesaid being either the Kings Tenants or some inferiour Lords or it may be the Tenants of several Mannors joining together and their coming to Parliament or as the Burrough of St. Alban's pleads pro omnibus serviciis faciendis was a consequent upon their Incorporation Free-hold I take it was the occasion of all this though afterwards Traders might be admitted to Priviledges amongst them The Traders and Free-holders within Cities or Boroughs sent their Delegates whilst here as in Poland the Possessionati Men living upon their Lands in the Counties came to the General Councils in their own Persons Thus it was here till the 49th of H. the 3d as I think the Authorities formerly insisted on by Mr. Petyt in behalf of the Citizens and Burgesses and by me for the Possessionati in the Counties sufficiently Warrant Wherefore the Alteration which was made in the Government in the 49th of H. the 3d. if any were then made was the calling out some of these Proprietors Earones Comitatus to come in their own Persons and putting a Representation upon the rest which was most likely to be done by the Perswasion and Influence of the King though with the consent of the People And therefore I must say 't is most probable that what is by Mr. Cambden's Author transmitted to us as done a little before the Death of H. the 3d must have been some years af-the 49th and the Kings Victory at Evesham over the Great Barons whom he curb'd by the Less the Commons Which prevail'd on his side by whose Assistance he depriv'd many great Men of a judicial Power in Parliament and of the right to special Summons while the Commons had their Power preserved in their Representatives they were all interested in the Legislature as before But all the Great Barons had not their former Interest in the Supream Judicature and yet this variation in respect of the Great Lords was no change of the outward frame of the Government but only a diminution of the Priviledges of some particular Men. And though the bringing in Representations where no Representations were before altered the Frame and Appearance of the Government yet it did not the Constitution and fundamental Interest of Proprietors of Land with whom the Ballance of Power has ever been in this Nation the Foundation is and was the same like the same Soul animating the same Body when 't is greater and when by reason of Tumults and Seditions as we may call them in the Spirits 't is wasted from its Corpulency and thereby often brought to a more assured state of Health than ever before This more healthful State in a contracted Body of Proprietors of Land I yeild to have been setled in the Reign of H. the 3d. It happening that there were Writs to that Purpose just in the 49th 't is concluded that then it was first begun Whereas by the same Argument 't was in the 38th when two for every County were summoned to Parliament Vice omnium singulorum But if I should confine my self to Authorities within the time of the first Edward immediate Successor to H. the 3d I doubt not but there were enough to satisfy any unbyass'd Reader that the Commons such as are now represented by Knights Citizens and Burgesses had before the 49th of H. the 3d Shares or Votes in making of Laws for the Government of the Kingdom and had communication in Affairs of State otherwise then as represented by the Tenants in Capite notwithstanding Dr. Brady's Affirmation to the contrary In the 24th of E. 1. the Earls Barons Knights and others of the Kingdom which others was then and afterwards meant of the Commons of the Cities and Boroughs gave a Subsidy Sicut aliàs nobis progenitoribus nostris Regibus Angliae And sure Hen. the 3d could be but one Progenitor so that the Farones Minores the Free-holders of Land which ever since the 49th or some other Year of Hen. the 3ds Reign were represented by the Knights of the Counties who were not in those times to be sure confined to Knights by Tenure or Dubbing And the Commons of Cities and Burroughs at the least from within the Reign of King John to whom Hen. the 3d. immediately succeeded were Members of Parliament being Parties to Grants there made And omitting the Prescription of the Burrough of St. Albanes from within the time of the Progenitors of Edward the first to use but one Authority not mentioned in either of my Tracts In the 28 of E. 1. the Knights Citizens and Burgesses had been summoned to the Parliament at Westminster Nobiscum de diversis negotiis nos Populum Regni specialiter tangentibus tractatur and Writs issued out for their reasonable Expences prout aliis consuevit in casu consimili 1. Upon which 't is observable that de quibusdam arduis which is now in use in the Writs of Summons ought not to be restrained to a few great matters but extends to divers according to the different natures of matters brought before or appearing to them 2. That the Commons had not only an Assent without power of dissenting but they were to treat as well as the Peers 3. That their coming was not a new thing then as if begun but 35 Years ago in the 49th of H. 3. but it was of Custom and legal Prescription so far that it laid an Obligation upon the Subject to contribute to these Expences and surely an Usage of 35 Years would not be a sufficient Charge in Law 4. That though there is no Evidence that Representations for Counties were settled before the 49th of Hen. 3. Yet the Freeholders were often at Parliament by Representation and thence there was ground in reason to occasion the Custom that they should bear the Charges of them that they chose Nay if there were no actual Choice there was tacit Consent from which Custom may arise that those who were willing and at leisure to be at Council should answer for and have Contributions from the rest But let both Dr. Brady and Mr. Hunt consider the Precedents above mentioned of Coventry and Bridgwater which did not hold of the King and yet sent Burgesses to Parliament and let them give a categorical Answer whether they believe that the Majores Barones Regni and omnes alij holding in Capite mentioned in King John's Charter made
Barons and all the Commonalty of the Kingdom or Land c. It doth not from hence necessarily follow that the Commons were then present for the word And may be taken exegetically and expositive and not introductive of any other Persons and the word Communitas doth many times extend to the Prelates and Barons therefore it is said Si videatur Communitati Praelatorum Baronum Here lies the force of all the Cavils upon the Records mentioning others besides Tenants in Capite and Mr. Hunt insists upon the same in effect with the very same Instance I shall here chiefly apply my self to Mr. W. and I cannot but observe that what I have here cited out of his Book either contains an Assertion without any manner of Proof offered or else the latter part is used for the Proof of the other but surely 't is an odd kind of Proof that And may be used exegetically because the word Communitas may extend to several Particulars and as well to Prelates and Barons as others when particularly exprest along with it which is no more than that the other words are exegetical or expositive of Communitas not that Com●…as or And joyned with it can be expositive of those other words Wherefore the Assertion that And may be used exegetically stands naked by it self without any colourable Cover or Support and I would gladly see at least some Colour for the Belief that the Conjunction And was ever used as expositive or exegetical of any word or words foregoing Indeed when 't is Husband and Wife they may notionally be the same in Affections and Desires and become one Flesh as Body and Soul make one Man But I think no Man will say that the Wife is exegetical of the Husband and is no more than what was mentioned before when the Husband was named nor will any but such as believe the Mortality of the Soul and that 't is nothing else but the Temperament of the Body or its animal Spirits suppose the Soul and Body to be the same indeed if they were the Body ought to stand by it self without mention of the Soul with a distinctive And. Till some one Instance can be produced in which Mr. W. can make it out to the common reason of Mankind that And ought to be used otherwise than as introductive of something not expresly mentioned before he must give me leave to think that in the matter of our Dispute And is necessarily introductive of some other Persons But according to the Rule of making And exegetical where 't is expressed in the Instance given in the Record 48 H. 3. Si videatur Communitati Praelaturum Baronum Et must by plain Consequence be exegetical of the Praelati and so the Barons were only the Community of or all the Praelates I take it to be obvious that And of it self can never be expositive the question then will be what may or ought to be the Exposition of words which singly taken are of more general or more restrained Senses and how far they may or ought to be enlarged or restrained according to their Position or according to the nature of the words which are used along with them And in my Opinion it is contrary to the Laws of Interpretation that a word used in a general Sense and as comprehending others should explain those others particularly set down as that Communitas which here Mr. W. would have taken in a general sense as not confined to one Order should explain what is meant by Praelates Peers and Barons before particularized on the other side words of a particular explicit meaning coming before or after one of more general import shall explain and restrain the general Sense Thus Praelatorum Baronum either before or after Communitar restrain that word Communitas to the Community of the Prelates and Barons and I dare say no one Record can be shewn of the times either before or after the 49th of Hen. 3. which will warrant a contrary Exposition of such Words And indeed there has no Reason been pretended why Communitas or Populus joyned to some Orders of Men expressed should be the same with what went before but what is a manifest begging of the Question and supposing that the Commons were not present in the General Councils at the Times the Records mention and therefore that the word Communitas or Populus was superfluous and referred to what was sufficiently exprest before was comprehensive of the foregoing Particulars as Mr. Hunt will have it this illogical Petitio principij is a Leaden Vein which runs through all Doctor Brady's Writings But let us a little observe the pennings of Records which may give Light to this matter you shall there find words of a restrained Sense following one of more general to be exegetical or explanatory of the general as the Peers Earls and Barons there Earls and Barons denote what Peers are meant because there might have been Bannerets an inferiour Order of Peers Then you shall find words of a limited Sense going before to be restrictive of a word following which otherwise would have had a more general Sense as Earls and Barons the Peers there the Earls and Barons are the only Peers But where 't is Earls Barons and Peers there neither the first nor the last words can be expositive because And severs them and consequently makes them to be of different Senses wherefore And is necessarily introductive of other Persons and the word Peers which without And might have been a Genus to the several Species of Earls and Barons must needs be an Inferiour Species under a Genus not there mentioned But still Peers could not have explained the Earls and Barons but Earls and Barons would be expositive of Peers which is more comprehensive in its Signification And thus where 't is Communitas Praelatorum Baronum Communitas is the Genus to these two Species and the more particular words restrain the Communitas to them wherefore 't is the whole Body of the Prelates and Barons and none else but where it is Praelati Comites Barones Populus or Communitas there the Populus or Communitas must be inferiour to the rest particularly mentioned being there is a descent from the higher Orders still to the lower if they begin at the bottom they end with the highest at least that which is added at the last must be something distinct or different from or not paticularly exprest in what went before which is enough for my purpose I shall close this with a few more Examples out of Records In a General Council of the Kingdom held in the fifth Year of King Iohn's Reign after he had married his second Wife having been divorced from the first the new Queen was solemnly crowned unanimi consensu concordi Voluntate Archiepiscoporum Episcoporum Comitum Baronum Cleri et Populi totius Regni Magna Charta was confirmed in a General Council of the