The FIRST ARGUMENT.

1. THE Burgesses of St. Albans Rot. Parl. 8 E. 2. n. 233. Pro Burgenses de San [...]o A [...]. Who sent Bur­gesles to Parli­ament 28 E. 1. 35 E. 1. 1 [...]. 2. 2 E. 2. 5 E. 2. P [...]'s 4. part of Parliamen­tary Wri [...]s, pag. [...]. in their Petition to King E. 2. An^o 8^o say, that they, sicut [...]eteri Burgenses Regni ad Parliamentum Regis (when it should happen to be sum­moned) per duos Comburgenses suos venire debeant, prout totis retroactis [Page 8] temporibus venire consueverunt, tam tem­pore domini Ed. nuper regis Angliae pa­tris regis, as well in the time of E. 1. the Kings Father, & Progeni­torum suorum, as in the time of E. 2. semper ante instans Parliamen­tum, and declared that the names of such Burgesses coming to Parlia­ment were always inrolled in the Those Rolls lost, or destoy­ed. The Sta­tute of Articuli Cleri made the next year after this Record cells us that there were di­virsa Parlia­menta tempori­bus Progenito­rum suor [...] Re­gum Ang [...]. Coke 2. Instit. [...]. 618. Rolls of the Chancery; notwith­standing all which the Sheriff of Hartford at the procuration and fa­vour of the Abbot of St. Albans and his Council, refused Burgenses prae­dictos praemunire, seu nomina eorum re­tornare prout ad ipsum pertinuit, &c. and therefore they pray remedy.

Respons. Scrutentur Rotuli, &c. de Respons. est per Concilium. Cancellaria, si temporibus Progenitorum Regis Burgenses praedicti solebant ve­nire vel non? & tunc fiat eis super hoc justitia vocatis evocandis si necesse suerit.

I do not think there needs much [Page 9] enforcing this Record, since the prescription of sending duos Combur­genses ad Parliamentum Regis, sicut cae­teri Burgenses Regni did, is, that they and their Predecessors were always accustomed to send two Burgesses to Parliament in all for­mer Ages, not only in the time of E. 1. but his Progenitors; there­fore in King Johns time, his Grand­father at least, and so before H. 3.

And though the answer to the Petition, which in that Age was given in Parliament (per Concilium, or all the Judges of England, and others the Kings Learned Council) say, Scrutentur Rotuli, si temporibus progenitorum Re­gis Nota, Rolls of Summons to Parliament, were extant this very Parliament, Rot. Claus. 8 E. 2. m. 25. Selden's Titles of Honor, fol. 604, 605. It appears by the Patent Roll of 26 E. 3. that there were Parliamenta, and Sum­mons to Parliament, tempori­bus Progenitorum, & ante an­num 49 H. 3. Rot. Pat. 26 E. 3. Pars 1. m. 23. (which may go to the whole Reign of King John, as before) Burgenses praedicti solebant venire, vel [Page 10] non; yet that grave and wise Coun­cil do not in the least scruple, but clearly admit and confirm the ge­neral prescription, that there were Boroughs that sent Burgesses to Parliament, temporibus E. 1. & Pro­genitorum suorum, which goes high­er than H. 3. his Father; and it cannot in common reason be sup­posed, much less believed, that the Burgesses of S^t Albans, or the Law­yer or Pen-man of the Petition, should dare to tell the King and Learned Council, in the face of a Parliament, a Novelty so great and ridiculous, and that Recorded to Posterity by the Council, that they and their Predecessors, in the time of E. 1. and his Progenitors, had sent two Burgesses to every Parliament, when all the World then knew (if the modern opinion be true) that there was never any Election of any Burgesses to Par­liament [Page 11] before the 49 H. 3. which was but 50. Years before 8 E. 2. and at the time of the Petition fresh in their own memories.

No, surely the Burgesses of S^t Albans did not ground their Peti­tion of Right upon a general alle­gation, or an affirmation in nubibus; but the justice and certainty of their claim, as they themselves very well knew, so they prayed it might be examined and tried by uncontroul­able Witnesses, Records, the Rolls of Chancery. The Chancellor and the rest of the Council, did no less know there were such Rolls, and therefore order the search; but if the Petition had been notoriously false and idle, instead of recording it to future Ages, they would with contempt and scorn have rejected it, nor would the great Abbot of S^t Albans, his Council, and the She­riff of Hertford, against whom the [Page 12] Petition was exhibited, have been wanting in their own defence, to have shewed and proved that this antient prescription was a meer Chimaera, and fable; no, they all were well satisfied, that the Bo­rough had sent two Burgesses to every Parliament, in the time of E. 1. and his Progenitors, and there­fore it was in vain to oppose or contradict their just and antient right, according to their prescripti­on; all which appears clearly by this, that both before the time of the Petition, and ever since, they have sent two Burgesses to every Parliament.

The SECOND ARGUMENT.

I Am not ignorant that some have dated the origine of the Commons being a part of the Parliament, from the Parliament of Runningmead, 17^o Reg. Joh.

[Page 14] It may therefore be worth our pains to observe this great Record following, and to consider whe­ther from thence may not be pro­ved this Conclusion:

That [...] great Cities and Bo­ro [...]s of the [...]ingdom (not so [...]merous then as after and now) in the 16^o of King John, before the granting of his Magna Charta, or [...] confirming the antient Laws in his 17^th year, at Runningmead, did send their Proxies and Repre­sentatives, to the Commune Concilium Regni, or Parliament; for it can­not be supposed in reason, that every individual Citizen and Bur­gess could come, no more than every Parson of a Parish to a Con­vocation, or to a meeting of the whole Clergy of England.

The Record saith, That the Rot. Pat. 15 Joh. Pars 2. m. 2. King being in partibus transmarinis, writes

• [Page 15]Majori & Baronibus London.
• Majori & probis hominibus
• Winton.
• Northampt.
• Lincoln.
• Ebor.
• Oxon.
• Glouc.
• Heref.
• Exon.
• Worcestr.
• Cantebr.
• Hunt.
• Bristol.
• Norwich.

And all the great Boroughs of the Demesnes of the King, giving In the antient Subsidy Rolls we often meet with the Te­nants in anti­ent Demesne in Parliament, and giving Sub­sidies, and it is the opinion of my Lord Ho­bart, sol. 48. that by continuance of time they were discon­tinued, and it may be one reason thereof was, that it was an ease gran­ted them by the King in favour of their labour of the Earth. Vide Rot. de 20. & 15 Ed. 2. apud Northampton, An. Regni sui primo à Laicis concessis. Rot. de 15. Burgorum Regi E. 2. an. Regni sui nono apud [...] [...]. à Laicis concessa. In Custodia Clerici Pipae in Sc [...]ccario remanen. them account of his proceedings and successes in his War against the French, and that the Pope had by his Letters released the Interdict, under which the Kingdom then lay, which the King had then sent to Peter Bishop of Winton, Chief Justice of England; and therefore desired that they would believe what the Bishop should speak to them, that Consilium & Auxilium [Page 16] vestrum ad honorem nostrum & vestrum & statum Regni nostri in melius com­municandum efficaciter super hoc appona­tis, and that majori festinatione expedi­retur, Teste apud Rupellam 6^o die Martii.

In the same manner he writ to Rot. Pat. 15 Joh. Pars 2. m. 1. Inhibitio ne qui Magnates, viz. Comes, Baro, Miles, seu ali­qua alia nota­bilis persona transeat ad par­tes transmari­nas. Rot. Claus. 3 E. 2. m. 19. dorso. William Earl Marshal, and to all the Earls, Barons, & Magnatibus Angliae, &c. Teste apud Rupellam 8^o die Martii.

In order therefore to our proof of a Parliament from these Re­cords, let us make two observati­ons.

• 1. Negative.
• 2. Affirmative.

Though the Writ be general, 1. Negative. and mentions not any time or place for meeting or coming to Parliament, or the great Council (the King referring that I suppose to his Regent or Chief Justice here) yet it cannot be intended that Peter [Page 17] Bishop of Winchester, being then Chief Justice of England, should go from County to County, City to City, Borough to Borough, or as our Church-Wardens do, from House to House, rogare Consilium & auxilium (the proper business of a Parliament) to desire and entreat for their Counsel and Aid, for the Honour of the King, their own, & statum Regni, and the safety of the whole Kingdom; surely that had been an imployment fitter for the wandring Jew, or Johannes de Temporibus; and such counsel must needs have been of a very diffe­rent and various nature, and both agreeing very ill with the words majori festinatione, and urgency of the contents of the Writs.

Let us then enquire what were the effects and consequents of these Writs, and that brings me to the second observation.

[Page 18] King John began his Reign 6^o 2. Affirma­tive. Aprilis, the Writs bear date 6^o & 8^o Martii, which was the Close of An. 15^o. It may be the Winds were very cross, or for some other rea­son the Letters might not so spee­dily be brought over, or published here, or after the summons there might be above forty days before they met. But sure it is, in the be­ginning of July, (after that March) being the sixteenth Year of his Reign, we find:

Nicholaus Tusculanensis Episcopus Mat. Paris An. 1214. pag. 249. l. 27. & Apostolicae sedis Legatus per nuntios memoratos Domini Papae Authenticum acceperat. Rex Anglorum erat in par­tibus transmarinis, sed quoniam idem Rex in recessu suo ab Anglia Legato jam dicto & Willielmo Marescallo vices suas in hoc negotio commiserat, idem Legatus in urbe Londinensi apud Sanctum Paulum grande con­gregavit Concilium, ubi congregatis Ar­chiepiscopis, [Page 19] Episcopis, Abbatibus, Prio­ribus, Pau [...]is evolutio di [...]bus congre­gantur apud Londoniam Archiepiscopi, Episcopi, Abba­tes, multarum (que) Ecclesiarum Praelati cum Co­mitibus & Ba­ronibus totius Regni ut negotia Regni & Ecclesiae pertractarent cum Theobaldo Cantuar. Archiepiscopo Apostolicae sedis Legato, eidem Concilio praesidente. Mat. Paris in vita Rob. Abb. S. Albani An. Dom. 1155. pag. 72. l. 26. Comitibus, Baronibus, & aliis ad hoc negotium Interdicti (the very business of the Writs) spectantibus proposuit coram omnibus formam restitu­tionis.

And the Great Selden the Ho­nour Selden's Titles of Honour, Part 2. sol. 587. of the Inner-Temple, or rather as the Learned Grotius, Honos Bri­tanniae, to drive the nail home, saith, But we know by what is already shewed, that divers former Parlia­ments were in this Kings time (mean­ing before the granting of his Mag­na Charta, An. 17 Joh.) though the Laws made in them be lost. And in the year before the Charter also (which was An. 16 Joh.) the Author of Eulogium sayes, that Convocatum est Parliamen­tum Londoniis praesidente Archiepisco­po cum toto Clero & tota secta laicali, wherein per Domini Papae praeceptum [Page 20] illa obligatio quam Rex Domino Papae fecerat cum fidelitate & homagio rela­xatur omnino, vii' die Julii.

Having thus proved a Parliament in the 16^th of King John, and that the Citizens and Burgesses had their Summons to it, which is remarka­ble by a Writ particular and di­stinct from that of the Lords, viz. the Earls, Barons, & Magnates Ang­liae, I will conclude this Argument with the Statute of 5 R. 2. Cap. 4. where it is enacted by the assent of the Prelates, Lords and Commons, That all and singular persons and Communalties, (be he Archbish­op, Abbot, Prior, Earl, Baron, &c.) which should have a Summons to Parliament, should come from thenceforth to the Parliaments in the manner as they were bounden to do, and had been accustomed within the Realm of England of old times; and if they did absent [Page 21] themselves, and came not, he and they should be amerced, or other­wise punished according as of old times had been accustomed to be done: from hence I shall observe,

1. That there were Summons to Parliament of old times, as well to the Commonalties, that is, the Citi­zens and Burgesses; as to the Arch­bishops, Bishops, Abbots, Priors, Earls and Barons; and so the Statute may seem to affirm the prescripti­on of S^t Albans, that saith, that they had sent Duos Comburgenses sicut cae­teri Burgenses regni did to every Par­liament totis retroactis temporibus be­fore E. 1. and his Progenitors.

2. That the phrase of old times is in point of prescription and an­tiquity applied equally, and with­out distinction or limitation, as well to the great Lords, as Commons; But if the first had of old times, as our modern Authors write, been [Page 22] the only constituent parts of the Parliament, it might in reason and prudence be thought, they would not have consented to have admit­ted that Summons to Parliament; for the Commons was Coeval with theirs; nor would they have ratifi­ed and confirmed by a solemn Act the protestation or declaration of Right of the Commons of England in the Parliament, 2 H. 5. n. 10. That the Commons had ever been a member of the Parliament, and that no Statute or Law could be made without their assent. 3. That if the Lords and Commons absen­ted themselves, and came not to Parliament, they should be amer­ced, or otherwise punished as of old times had been accustomed to be done; this branch plainly a­grees, 1. With the Modus tenendi Parliamentum, Written as M^r Sel­den saith tempore E. 3. That the first [Page 23] day the Burgesses and Citizens should be called, and if they did not come, they should be amer­ced; and so M^r Prynn mistakes in Mr. [...] A­nimadversions on the Lord Cokes Fourth Inst. pag. 3. his Animadversions, when he saith, that no absent Lord was fined be­fore 31 H. 6. 2. It appears, Ex vi terminorum, of old times it had been so accustomed to be done; that this prescription may well be applyed to the Parliament of 16 Joh. and long before; for the Sta­tute of Magna Charta, 17 of that King, saith, Civitas London habeat omnes libertates suas antiquas; by force and vertue of which word, antiquas, their old or ancient Li­berties and Customs (not only confirmed by the Magna Charta of William the First, but used even in the Saxon times, and before) were in Parliament ratified and con­firmed.

The THIRD ARGUMENT.

KIng John An. 14. of his Reign Mr. Paris An­no 1213. pag. 236. An. Regni Ioh. 14. made himself and Crown tributary to the Pope.

But Anno 40 E. 3. The Prelats, [...]. Parl. [...] [...]. 3. n. 7, 8. Dukes, Counts, Barons, and Com­mons; [Page 25] upon their full deliberation in Parliament, resolved with one accord, that neither the King, nor any other, could put the Realm nor people thereof into such subje­ction, sanz assent de eux, without their assent, viz. as well of the And with this agree the Scottish Laws. Et idem Rex Scotiae dicit si­cut prius quod de aliquo Reg­num s [...]m con­tingente non est a [...]s nes potest hic respondere inconsultis probis hominibus regni nostri. Placita Parl. inter Johannem Re­gem Scotiae & Magdulphum. 21 E. 1. pag. 157. Item ad rolorandum consederationem quondam initam inter ipsum Fran [...]orum Regem ex una parte & dictum Johannem de Balliolo ac Praelatos & Nihil [...]s & Universitates & Communitates Civitatum & villarum dicti Regni Scotiae pro ipsis & eorum haeredibus & successoribus ex altera parte. Ex Rot. in Turri London. Prynn's 3. Tom. of Ecclesiastical Jurisdiction, 28 E. 1. Commons, as of the Lords: and that it appeared by many Eviden­ces, that if he had so done, it was done sanz lour assent, and contrary to the Coronation Oath.

And if the Pope attempted any thing against either (having at the instance and sollicitation of the Rot. Pat. 15 Johannis Pars 2. m. 8. Inter­dictum, quod vulgariter ut­lagatio nuncu­patur. French King, threatned to inter­dict or out-law both) King and Kingdom; They would oppose [Page 26] and resist him, ove tout lour puis­sance.

The observations I shall make from this great Judgment shall be two.

1. That above 300. Years ago, there was not the least scruple or fancy, that the Commons of Eng­land, Nam cum sub Edwardo ter­tio in ordinum consessu quaestio habebatur de donatione illa decantatissima Johannis Regis sacta Innocen­tio Papae tertio & successoribus ejus, unde Urba­nus Quintus tum annum in­de natum mille marcarum Ang­liae & Hiber­niae simul no­mine censum sibi tunc solvi pete­hat, &c. Ordines universi id (que) tam generis [...]ieratici (quod mirere) quàm Proceres seu Senatus populus (que) in Comitiis illis solenni inita deliberatione re­sponderunt unanimes irritam plane fuisse Johannis donationem illam utpote tam sine Ordinum assensu quam Juramento ejus inaugurali adversam. Johan­nis Seldeni ad Fletam Dissertatio. Cap. 10. fol. 552. of which the Citizens and Burgesses were then undoubtedly a part, ought not, and were not to be present in the Commune Concili­um Regni, or Parliament of King Johns Reign, and to have assented to that Kings resignation, An. 14. to make it legal and valid, as well as the Prelates, Earls, and Barons.

2. If the Commons had never been a part of the Parliament be­fore [Page 27] 49 H. 3. but that the King and great Lords only made Laws, and had an inherent power (as some of our Modern Writers say) to tax the whole Kingdom, de alto & basso ad libitum suum jure repraesenta­tionis; surely they would not have left recorded to posterity so great a testimonial of the antiquity and right of the Commons of England (then so distinguished from the great Lords) as is expressed in the Roll: May it not then be admit­ted they spoke nothing but what was an undisputable truth, in diebus illis, unless we must believe, that the great and learned Authors of this Age, better understand the constituent parts of the Communia Concilia, or Parliaments of King Johns time (and so upward) above 460. Years since, than the whole Par­liament of 40 E. 3. the Parlia­ments of their Grand-Fathers time, [Page 28] as was the Reign of King John.

And indeed this famous resolu­tion was no other than a Declara­tion of the antient Common Law of the Land before the Norman Duke gained the Imperial Crown of England, as appears by King Harolds Answer to his Ambassa­dors, requiring the performance of the Kings Oath to take the Dukes Daughter to Wife, and to preserve the Crown for him.

De Regno addebat praesumptuosum fuisse, quod abs (que) generali Senatus & populi Conventu & Edicto alienam illi haereditatem juraverit

Which is recorded by William of Malmsbury, Lib. 3. p. 56. l. 24. in vi­ta Williemi I. an Author without all exception, who flourished in the time of H. 1. and therefore could not be ignorant where and in whom the Legislative Power of England did reside, there being but [Page 29] 33. Years from the coming in of the Norman Duke till the Reign of that King, and of this Histori­an the learned Balaeus gives this Eu­logium, Vir erat suo seculo in omni ge­nere bonarum literarum plene eruditissi­mus, & in eruendis antiquitatibus in­genio, diligentia & industria singularis Angliae nostrae nationis studosissimus illu­strator.

Upon the Death of Arthur Duke of Bretaign, the Annals of England tell us, that King John was Sum­moned by the French King, as Duke of Normandy to appear at his Court, and judicially to answer the pretended murder of Arthur his Nephew; whereupon the Bishop of Ely, and Hubert de Burgo, after Earl of Kent, and Chief Justice of England, nuntii solemnes & prudentes, were sent to the French King, to whom the Bishop thus spake, Do­mine Mat. Paris. pag. 283, 284. Rex non possit Dux Normanniae [Page 30] ad Curiam vestram venire, nisi veniret Nomine Barona­gii Angliae om­nes quodammo­do Regni Ordi­nes contineren­tur. Camd. Bri­tan. in 4. De Ordin. Angliae. fol. 61. Rex Angliae, cum una persona sint Dux & Rex. Quod non permitteret aliquo modo Baronagium Angliae, etsi ipse Rex hoc vellet. So careful was the Baronage or Parliament to preserve the antient rights, safety, and honour of the King and King­dom, An. 3 Joh. before any diffe­rence happened between him and his Subjects.

Anno 29 E. 1. the King sent Am­bassadors Ex Chronico Adam Meri­mouth in Bib­liotheca Cot­toniana sub Effigie Cleo­patrae. A. 16. p. 67, 68. An. Dom. 1300. 29 E. 1. to the French King, ut quid de truga, de guerra, & de pace deliberasset, nunciaret, and was an­swered, se non posse sine duodecim pa­ribus qui occupati fuerunt circa novam guerram tam ardua tractare, but that he expected their coming in fif­teen daies. Quo tempore transacto, ipsis consentientibus, they declare that they could not determine thereof, incon­sultis secum Scotis. Whereupon those Ambassadors returned. Igitur con­vocato [Page 31] Parliamento Londoniis, recitatis (que) frustratoriis dilationibus & falsis machi­nationibus praedictorum, Ambassadors were again sent, and received this answer: Quod Rex Angliae adveniret Rot. Claus 3 E. 1. m. 9. in Schedula. De­liberationem habere cum Prae­latis & Proce­ribus (i. e.) Par­liamento sine quorum commu­nicato consilio Sanctitati ve­strae super prae­dictis non possu­mus respondere, & Jurejurando in Coronatione nostra praesiito sumus astricti quod jura Regni nostri servabimus illibata, nec aliquid quod Diadema tangat Regni ejusdem abs (que) ipsorum requisito Consilio faciemus. personaliter, & inter duos Reges de op­tima pace conveniretur: Whereupon the King of England, Aliud habuit Parliamentum, in quo talia recitata dis­plicuerunt, & ex totius Regni Concilio (or Parliament) definitum est, Regem pro aliquo mandato vel suggestionibus ab Anglia egredi non debere.

From what hath been said, the Reader may easily observe, 1. That the weighty and great affairs which concerned the King and Kingdom, both in the Saxons time, and after, were by a fundamental principle and law of the Nation to be consul­ted of, and resolved in the Communia Concilia, or Parliaments, and that [Page 32] no particular person or order of men did take upon them such power, sine consensu Regni: and this H. 3. and his Council well knew, when he told Otto the Popes Nun­tio, Quod solus non potuit definire, nec Mat. Paris. pag. 325. l. 45. 9 H. 3. debuit negotium, quod omnes Cleri [...]os & Lai [...]os generaliter totius Regni tange­bat, which E. 1. and his Council in the 23^th Year of his Reign thus confirms, Quod omnes tangit, ab omni­bus Rot. Claus. 23 E. 1. m. 3. dorso. approbetur. 2. That the Gene­ralis Senatus, & Populi Conventus, & Edictum, or Saxon Wittena Gemott, the Baronagium Angliae, in King Johns time, and the Concilium Regni, or Parliamentum, in the Reign of E. 1. were verba synonyma, differing in phrase, but one and the same As­sembly in substance.

The FOURTH ARGUMENT.

THE general Council at Run­ningmead, [...] [...]. held 17 J [...]. is 29. Years after, and 20. Years before 49 H. 3. called Parliamentum de Runemed.

Memorandum quod in Parliamento a [...] die Pasch. in tres septimanas Anno Regni Regis H. 3. 28. London celebrato negotium Crucis in Anglia una cum col­lectione decimae benefi [...]rum Ecclesias [...] ­corum [Page 34] Domino Regi in Subsidium terrae Sanctae à sede Apostolica deputat. was treated of.

An Utlary against William de Rot. Claus. Pat. 32 H. 3. m. 13. dorso. Hastingcott, was reversed, and he restored to all he had lost thereby, and this done Coram Rege & toto Parliamento.

Inter Communia Hilar. 17 E. 3. Rot. Claus. 32 H. 3. m. 12. dorso. Rex [...]. [...] E­p [...]po, &c. in [...]o Par­liamento no­ [...]o quod suit [...]. penes Rememoratorem Domini Regis in Scaccario, It appears in a Plea be­tween the King and the Prior of Coventry, that 29 & 32 H. 3. quae­dam subsidia per Magnates & Communi­tatem Regni spontanea & mera volun­tate Regi concessa (or as Bracton phra­seth Bracton Lib. 2. cap. 16. fol. 37. it, Ex consensu Communi totius Regui, being one and the same with Magnates & Communitas,) to­wards the marrying of the Kings Eldest Daughter, and also the Kings Sister to Frederick the Em­perour, which was done in Parlia­ment; for the Close Roll of that [Page 35] Year tells us of a Parliament, Con­sideratum Rot. Claus. [...] H. 3. m. 13, dorso. fuit in Curia nostra & toto Parliamento nostro, &c.

In a Parliament 37 H. 3. (for Rot. P [...]. 3 [...] H. [...]. m. [...]. dorso. At this Parlia­ment was the dreadful Sen­tence or Curse published in the great [...] it [...]. by the Clergy gainst the breakers of Mag [...] [...] by consent of Parliament. [...]tals St [...] 15. so Mat. Westm. calls it, pag. 352.) Rex, Magnates & Communitas populi protestantur publice, that they would never consent to any thing in the grand and terrible Excommunica­tion then to be pronounced by the Clergy against the infringers of Magna Charta, contra consuetudines Regni antiquas & usitatas, In cujus rei testimonium & imposterum veritatis te­stimonium, as well the King as the Earls of Norff. Heref. Fssex ad Warwick, as Peter de Sabaudia, at the instance and desire aliorum Magna­tum & populi praesentium scripto sigilla sua apposuerunt.

Rex &c. Cum nuper in Parliamento Rot. Pat. [...]2 H. 3. m. 3. n. 9. De inquisitio­nibus faciendis per singulos Comitatus Angliae. Rot. Pat. 42 H. 3. m. 4. Henr. &c. Saches que pur le profit de nostre Rea [...]me & a la requeste de noz ha [...]s [...] [...] [...]omes e du Comun de nostre Reaume. nostro Oxon. communiter fuit ordinatum [Page 36] quod omnes excessus & injuriae factae in Regno nostro inquirentur per quatuor milites singulorum Comitatuum, ut cog­nita inde veritate facilius corrigantur, &c.

I have an Abridgment or ab­stract of the Rolls of this Parlia­ment, writ by the hand of Mr. El­sing, late Clark of the Parliament, who saith, my Lord Coke had it; and some of the proceedings there­in mentioned, I have found in the Exchequer enrolled at that time.

The Articles of Peace à Domino Rot. Pat. 48. H. 3. pars unica m. 6. dorso. Forma pacis in­ter Regem & Barones. Rege & Domino Edwardo, Praelatis & Proceribus omnibus & Communitate tota Regni Angliae communiter & concordi­ter approbata, were sealed by the Bishop of Lincoln, the Bishop of Ely, Earl of Norff. Earl of Oxon, Humphry Bohun, Will. de Monte Ca­nisio & Major London in Parlia­mento London Mense Junii, Anno Do­mini 1264. de consensu, voluntate & [Page 37] praecepto Domini Regis, nec non Praela­torum, Baronum ac etiam Communitatis tunc ibidem praesentium.

And not only so, but that Re­cord tells us, Quod quaedam Ordinatio facta in Parliamento London habito circa festum Nativitatis Sancti Johan­nis Baptistae proxime praeteritum pro pace Regni conservanda.

And we read in another Re­cord,

Rex &c. Cum super praeteritis guer­rarum Rot. Pat. 4 [...] H. 3. m. 4. dorso. discriminibus in Regno Angliae subortis, Quaedam ordinatio seu forma pacis de nostro Praelatorum, Baronum & totius Communitatis Regni praedicti una­nimi voluntate & assensu provida deli­beratione inita fuerit, &c. [...]n cujus rei testimonium huic Scripto nos Rex Ang­liae, Comes Leyc. & Glouc. Jo. filuis Johannis, Johannes de Burgo Sen. Will. de Monte Canisio, Henr. de Hastings, & Gilbertus de Gaunt, pro nobis & caeteris Baronibus & Com­munitate [Page 38] Regni Angliae Sigilla nostra apposuimus. Dat. apud Cantuar. die Jovis proximè post Festum Nativitatis beatae Virginis, Anno 1264.

And therefore those that hold Rastals Stat. p. 987. Stat. 3 & 4 E. 6. Cap. 3. where in the Parliament holden at M [...]r­ton in the 20 H. 3. that there were no Commons, or Citizens and Burgesses in Parlia­ment before 49 Hen. 3. would do well to define and ascertain, who the Communitas were after the words Praelati, Barones & Magnates, in the before-expressed Records.

The FIFTH ARGUMENT.

THE Commons of England, up­on their claim or protesta­station, had, as their undoubted and unquestionable right, and in­herent priviledge, allowed and admitted in Parliament, that they had ever been a member of Parlia­ment: [Page 40] then were they a member of that 16 Joh. before-mentioned, of 17 Joh. 28, 32, 37, 42, & 48 H. 3. and that no Statute or Law could be made without their as­sent.

The Record says, That so as Rot. Parl. 2 H. 5. p. 2. n. 10. Nota. This me­morable Re­cord amongst several others as remarkable, is entirely left out in the Ex­act Abridg­ment of the Parliamwnt Rolls, publish­ed under the name of Sir Ro­bert Cotton, by Mr. Pryn. hit hath ever be their liberte and freedome, that thar should no Sta­tute, ne Law, be made of lass then they yaffe therto their Assent, con­sidering that the Commune of your Lond, the which that is and ever hath be a membre of your Parlia­ment, ben as well Assentirs as Peti­tioners.

Yet was the affirmation of the Commons no other than a reno­vation or memorial of the ancient Law of the Land, as is proved be­fore, and more fully explained and confirmed by the Petition to the [...] King and his Learned Council, and answer thereto in the Parliament [Page 41] of 8 E. 2. The Record is not un­worthy of a serious perusal. Er­cheves (que) Eves (que) Prelatz, Counts, Ba­rons, & autre gentz de la Comunyalte Dengleterre que tiegnent lour Manoirs en chief de nostre Seigneur, as well within the Forest as without, to which Mannors they had Gasz (Wast) appen­dant, dont les Seignourages avantditz arentunt, by the acre, half acre, & per rode en approvaunt lour Manoirs. Whereupon the Ministers of the King made seisure thereof, Pur ceo qu' eux ne unt la licence le Roy d'entrer. Therefore they pray, that they may approver leur Manoirs & le povre pue­ple eyser, &c. Responsum in dorso, Il ne put estre fait sanz novele ley la quele chose fere la Comunalte de la terre ne vult my uncore assentir, infra, Coram rege.

From hence I make these Ob­servations.

1. It proves that the Law could not be altered without consent of [Page 42] the Commons of England, though in a case particular to the King, as this was, for the Petition was co­ram Rege; nor could the King and Commons, without the Lords. For Rot. Parl. 22 E. 3. n. 30. E. 3. per avys des Prelatz & Grauntz de la terre fist respondre as les petitions des Communes touchantes la leye de la terre, que les leyes eues & useez en temps passez, ne le processe dycelle useez cea en arere, ne se purrent changer sanz ent faire novel Estatute, which as then they could not attend, but shortly would.

2. That they ought to agree to all new Laws, and that no Statute could be made without their assent. It is then remarkable, 1. That the Commons of England, as now we stile them, gave their suffrage and vote in the enacting and making of all Statutes and Laws in the time of the Progenitors of H. 3. which taken extensivè, is a very large pre­scription [Page 43] of right, for that King by the Statute of Assisa panis & cervi­siae, Pulton Stat. made after 49. when it is pre­tended the Commons began, viz. An. 51. tells us, That at his Par­liament Rot. Pat. 1 H. 3. m. 13. Rex Archiepis­copis, &c. Mi­liti [...]us & libere ten [...]ntib [...]s & omnibus fideli­bus s [...]s per Hi­bernia [...], &c. quod in sig [...]m fidelitatis [...]e­str [...], &c. liber­tation Regao no [...]tro Angliae a [...] vostro & no [...]is concessis de gratia nostra & dono in Reg­no Hiberniae ga [...]deatis, &c. held the first year of his Reign, he had granted that all good Statutes and Ordinances, made in the time of his Progeni­tors, and not revoked, should still be held. 2. But admitting the word Progenitors be restrained to two, which I conceive was never intended by the Law-makers, yet it cannot be denyed but that the Statute of Magna Charta, for so it is called 5 H. 3. Fitz-herb. Abrid. tit. Sed non si [...] Ang­liae Stat [...]ta ori­ri possunt dum nedum Princi­pis voluntate sed & tot [...]s R [...]gni ass [...] ipsa cond [...]t [...]r. Fortescue, cap. 8. pag. 40. Mordaunc. n. 53. and by Fleta, Lib. 1. Cap. 28. and all other Statutes made at least, temporibus Johannis & Ricardi I. Father and Uncle of Henry the Third, had the assent of the Commons in Parliament, to make them Laws.

[Page 44] Now the word Progenitors in the Statute, must I conceive go higher than Ric. 1. for Bracton a Learned Judge, who flourished in the time of Henry the Third, and so by a reasonable computation of time, may be supposed to have li­ved in the latter end of the Reign of Ric. 1. or beginning of King John's, after he had declared to po­sterity that he had bent his mind, ad vetera judicia perscrutanda diligenter non sine vigiliis & labore, and what­soever he found Notatu dignum, he reduced in unam summam perpetuae memoriae commendanda, concludes this Bracton. Lib. 1. cap. 1. fol. 1. Inhibitio nè qui Magnates, viz. Com [...]s, Bar [...], Miles, sea ali­qua alia nota­bills persona transeat ad par­tes transmari­nas. Rot. Claus. 3 E. 2. m. 16. dorso. point thus. Cum legis vigorem ha­beat quicquid de consilio & de con­sensu Magnatum & Reipublicae communi sponsione authoritate Re­gis sive Principis praecedente justè fue­rit definitum & approbatum.

And so just and excellent was the ballance of the Constitution of [Page 45] our legal Government, in prevent­ing any order or rank of the Sub­jects, to impose upon or bind the rest without their common con­sent, and in conserving as it were an universal liberty and property to every individual degree of men, from being taken from them with­out their assent, as the County Pa­latine of Chester, ab antiquo were not Kings Vale Royal of Eng­land, fol. 9, 10, 11. subject to such Laws to which they did not consent; for as well before the Conquest of England, as after, they had their Commune Concilium, or Court of Parliament, by authori­ty of which the Barones, Milites & quamplures alii (Rot. 44 H. 3. m. 1. dorso) Barones liberi homines & omnes alii fideles (Rot. Pat. 3. E. 1. m. 6.) or as the Supplication to H. 6. saith, The Abbots, Priors, [...] [...] Which Supp [...] ­cation, though it be not that I know of upon Record, yet I have seen very many Copies thereof, and particularly I have a Copy of it my [...] which was written in the year MDLxxxxii. Ex li [...] [...] The [...] [...]aring Cestrensis Baronet [...]i ad me m [...], Anno Dom. [...]. [Page 46] Clergy, Barons, Knights, Esquires, and Commonalty, did with the consent of the Earl make or admit Laws within the same, such as should be thought expedient and behoveful for the Weal of the In­heritors and inheritance of the said County, and no Inheritors or Pos­sessors within the said County were chargeable or liable, or were bounden, charged, or hurt of their Bodies, Liberties, Franchises, Lands, Goods, or Possessions, unless the said County (or Parliament) had agreed unto it. And I dare under submission affirm, that neither this County Palatine, nor Durham, were ever subjugated to have their E­states given away, at the good will and pleasure of the Earl or Bishop, under any notion or fan­cy in those days of being their re­presentatives in the Commune Concili­um Regni, or that being dependant [Page 47] Tenants, their consents were in­cluded in their Lords assent: and if the Commune Concilium Cestrense, or Parliament, was deduced from Records, it would be of greater use to shew us as in a Mirror the Government of England in antient days, than what I have yet seen published by any Author.

3. That the Answer of the King to the Petition penned and made by all the Judges of the Land, his Council in Parliament cannot be supposed to be ground­ed upon a modern usage of 59. years from the time of 49 H. 3. till then, if the Tenants in Capite jure repraesentationis, made the Parliament as some hold, but was a Declara­tion of the ancient Custom and right of the Nation.

4. That it was not in the pow­er of all the Tenants in Capite of England, or the greatest part, who [Page 48] were the Petitioners, though with the Kings consent, to bind and ob­lige others, or to make or alter a Law, sine assensu Communitatis Regni, who had votum consultivum, and de­cisivum, an Act of Authority and Jurisdiction, as well in assenting to spiritual Laws as Temporal, as may appear for an in [...]tance, in their Declaration or Protestation to E. 3. in Parliament.

Que nul estatut ne Ordenance soit fait Rot. Parl. 51 E. 3. art. 46. Le Convocation n'ad ascun pow­er a faire ascun chose a lier le Temporaltie. 20 H. 6. 13. Et issint le Rule 44 E. 3. 19. [...]t [...]ray q' n [...]l [...] oblige le poe­ [...]e [...]; c [...] q' est fait par con­s [...]nt del poeple. Davis Rep. fol. [...]. ne grante au Petition du Clergie si ne soit per assent de voz Communes, ne que vous dites Communes ne soient obligez per nulles constitutions q'ils font pur lour avantage sanz assent de voz dites Com­munes: Car eux ne veullent estre obligez nul de voz Estatuz ne Ordinances faitz sanz lour assent.

Fortescue cap. 8. pag. 40. tells us, Sed non sic Angliae Statuta oriri possunt dum nedum Principis voluntate sed & totius Regni assensu ipsa conduntur. [Page 49] Et si Statuta licet tanta solennitate & prudentia edita, efficaciae tantae quantae conditorum cupiebat intentio, non esse contingant; Concito reformari ipsa pos­sunt & non sine Communitatis & Procerum Regni illius assensu quali ipsa primitus emanarunt. And that this was the antient Law and Right of the Kingdom, appears by the answer of E. 1. an^o 22. of his Reign to the Petition of the whole Clergy of England; for the Clergy ha­ving given the King medietatem om­nium Henr. de Knighton de Eventibus Angliae lib. 3. pag. 2502. l. 24. An. Dom. 1294. 22 E. 1. bonorum tam temporalium quam spiritualium, complaining that the Immunity of the Church laesa fuit & violata, petiit à Rege quosdam Arti­culos (Rege jubente) jussit enim Rex postquam votis ipsius paruerant (in gi­ving the Subsidy) ut ipsi ab eo pete­rent remedia quae vellent. Et petierunt im­primis ut Statutum de manu mortua, quod in praejudicium Sanctae Matris Ec­clesiae fuit editum, deleretur Cui quidem [Page 50] Articulo respondit Rex, quod idem Sta­tutum de Consilio Magnatum suorum (so phrased by the Historian) fuerat editum & ordinatum, & abs (que) eorum Consilio non erat revocandum: but a more certain authority tells us, that the Statute was made, per Commune V [...]. Coke 2. Insi. fol. [...]5. Concilium Regni, or Parliament, as appears by Rot. Claus. 7 E. 1. m. 5. dorso. Rot. Pat. 10 E. 1. m. 13. and then the Commons were unquestion­ably an essential part, and joined in the making the Statute.

The SIXTH ARGUMENT.

THE King writes to the Bi­shop [...] of London, and to the rest of the Bishops of the Province of Canterbury, that his heart was wounded [...]to dolore, that the Earl of Gloucester, and other Re­bels, had by crafty perswasions circumvented, pro [...]r! Prince Edward, & ad partem suam proditori [...] [Page 52] a [...]axe [...]unt proprii contemptu Sacra­men [...], contra formam de nostro & ejus­dem silii nostri, Praelatorum, Magnatum & Communitatis Regni nostri unani­mi assensu & voluntate nuper London. provisam.

The King per le conseil & l'assente­ment Rot. Pat. 51 H. 3. m. 16. Pro [...]ce inter R [...]g [...]m & Com. Glouc. Nota, [...] Earl of [...] ­wal, w [...] E­lected King of H [...]ngary, or Almain. Ibidem. Coke 2. Instit. sol. 599. Articuli C [...]i ex fragmenta. Rot. Parl. An. 51 H. 3. le Rei de Alemain & de Countes, & de Baruns, & del Commun de la terre, pardoned and released the Earl of Gloucester, and all his Com­pany, &c.

And the King per le Conseil & Pas­sentement le Rei de Alemain, & les Cuntes, & de Barons, & le Commun de la terre, pardoned and released the Londoners, totes maneres de ire & de rancour & de male volente, &c.

The King and Prince having Rot. Pat. 54 H. 3. m. 7. in­tus. D [...] signo [...]. undertaken the Crusado, for the Holy Land, quia tamen Praelatis, Magnatibus & Communitati Regni non videtur expediens ne (que) tutum, that [Page 53] they should be both out of the Kingdom, istis temporibus, it was agreed the Prince should go, and a Subsidy was granted to the Prince by the Parliament.

If one should shew the Au­thors of the novel opinion, only these Records, and thereupon ask them who the Communitas, men­tioned in these Records, after the words Praelati, Barones, & Magnates were, I doubt not but they would say, Knights, Citizens, and Bur­gesses, because they are after the pretended inception of 49 H. 3. but then I desire to know what authority they can shew, why the Communitas in 29, 32, 37, & 48 H. 3. should not be a part of the Parliament as much as of 49, 51, 54. of that King, since the words or phrases of both are alike in the Records.

[Page 54] For I do not think it a true way of reasoning, That because the no­tion of 49 H. 3. is generally pub­lished by our now Historians, and so believed: Ergo, it unquestion­ably was so, and has always and in all ages been distinctly known and believed.

The SEVENTH ARGUMENT.

IT is true indeed for any thing For all Pa [...]a­ment [...]ls of the time of H. 3. are l [...] [...] ▪ [...]me [...] in the Parl [...]ment [...]t O [...], in 44. of the [...]ame King, which I have hereto­fore used by the favour of an honoura [...]le p [...]rson that [...]. yet appears, the Parliament Rolls of H. 3. are all lost or de­stroyed, though references are made to them by several Clause and Patent Rolls of H. 1. and H. 2. yet no direct Writ of Summons ad Parliamentum, is extant of that time, either of the Lords or Com­mons (so M^r Pryn) till the Dorse of the Clause Roll 49 H. 3. in a [Page 56] Schedule affixed thereto, where there are Writs for Electing and sending to a Parliament at London, two Knights, Citizens, and Bur­gesses, and Barons for the Cinque-Ports, and likewise Summons to the great Lords.

But if that Roll of 49 H. 3. and Rot. Claus. 22 E. 1. had been de­stroyed as many others of that time were, then had there been no footsteps or testimony left us on Record, yet discovered, of any formal Summons to Parliament, of [...] first Part of [...] Writs, [...]ol. 16 [...]. [...], sol. 33. them or the Prelats and temporal great Lords, till 23 E. 1. though several Parliaments were in the in­terim, no less than twelve as the Printed Statute Books tell us. And P [...]'s Stat. [...]. 1 [...], 18, 2 [...], [...], 43, 44, 46, [...], [...], 71, 73. the Commons expresly said to be present at some, and implyed in all, if the Phrase of Commune Conci­lium Regni implies so much, which [...] think is unquestionable when [Page 57] compared with the Statute of Vide the Writs upon the Sta­tutes of [...]m. 1. 3 E. 1. Glo [...]. 6 E. 1. de mer­catorio [...]s, 13 E. 1. de Va [...]o, 20 E. 1. declare they were made per Com­mune Concilium Regni. Coke 2. Instit. sol. 156. Westm. 1. made 3 E. 1. which was not eleven years after 49 H. 3. wherein the constituent parts of the Commune Concilium Regni, are enumerated and expressed, the Statute being made Per l'assentements des Archievesques, Evesques, Abbes, Priors, Countes, Barons & tout le Comminalty de la terre illonques summones.

Now because from that one Re­cord of 49 H. 3. (being the only Roll as yet found out) it should be wonderfully observed, and from thence infallibly concluded and nicked, and by an ominous and influential Asterism of Rebellion and Treason marked, that the ve­ry All the antient­est Writs of Summons of our Temporal Lords to great Councils, being utterly lost through negligence, or pe­rished through the rust or consumption of time, the very first Writ of Summons to them, and Kalendar of their names, now remaining, is that of 49 H. 3. Prynns Register of Parliamentary Writs, Part 1. sol. 160. [...]t to point out who they were (viz. B [...] mai [...]res) that had their first rise by Writ of Summons until 22 E. 1. and afterwards, pasteth my skill, there being no publick Record that doth make mention of them till then, excepting that of 49 H. 3. D [...] Pres▪ to his Ba [...] Angliae, Tom. 1. first Writs (whereby the great [Page 58] Lords are said to be also first Summoned) to send two Knights, Citizens, and Burgesses for each County, City, and Borough, [...] Parliamentum, in Octabis San [...]ti Hil­larii, were made in this very year, at that very Crisis of time, nay te­sted on such very days, when the rebellious Barons (after the Battel of Lewes) had the King and Prince in their power, and exercised Re­gal Authority in his name, under good favour seems not at all satis­factory and convincing to me, un­til they give more certain and greater testimonials and evidence, and answer these few Records.

If the Epocha of the Knights, Ci­tizens, and Burgesses, or Com­mons (as now called and distin­guished from the great Lords) be­ing first admitted a part of the Parliament and Legislative Pow­er, had such a Creation and Ori­gine, [Page 59] it is more than a wonder, though the Parliament Rolls be destroyed, that the Lieger Books, Charters, or Historians of that time, either National or Foreign, of which there are not a few, or our antient Lawyers, Bracton, Britton, Fleta, and Hengham, had not a­mongst many Narratives of far less moment and weight, given po­sterity a remark, or some short hint or memorial of so suddain, so great, and so universal a change or Catastrophe of the whole con­stitution and ancient frame of the English Government, as that must unquestionably be admitted to be, or some subsequent Chronologer had not so much as dreamed of it till of late, or that branch in the ancient Coronation Oath of our Kings, demanded by the Archbi­shop, had not been omitted, or ne ver administred, which runs thus.

[Page 60] Concedis justas leges & consuetudi­nes Ex MS. [...]s Honorabile [...] Dominum Bar. de Hollis. esse tenendas, & promittis per te esse protegendas, & ad honorem Dei corrobo­randas quas Vulgus elegerit secundum vires tuas. [Respondebit Rex, Concedo & promitto.]

The word Elegerit, being ad­mitted to be of the praeterperfect tense, it certainly shews, that the peoples Election had been the foundation and ground of antient Laws and Customs; and the term of justas leges, seems to allow a liberty of debate, reason, and argument, so much as might be of efficacy and force, to demonstrate and con­vince, that the Laws so required by the Commons of the King, were just and reasonable; the debate and consideration of which certainly was never, nor ever could be in­tended to be done in the diffusive capacity of all the Commons of England, separatim, but in an intire, [Page 61] or in an aggregat body, that is, in their Communia Concilia, or Par­liaments.

And with this agrees the Statute of Provisors, An. 25 E. 3. which saith, Whereupon the Pulton's Stat. sol. 99. 25 E. 3. It is considered and declared by the whole body of this Realm now represented by all the Estates of the same assembled in this present Par­liament, that the Kings High­ness, before Almighty God, is bound as by the duty of a good Christian Prince, for the conservation and preser­vation of the good Estate and Common-wealth of this his Realm, to do all that in him is, to obviate, repress, and redress the said abusions and exactions of Annates, or First­fruits. Apad Capell. Rotulor. Rot. Parl. 23 H. 8. n. 33. said Commons have prayed our Soveraign Lord the King, that upon the mischiefs and damages which happen to his Realm, he ought and is bound by his Oath, with the accord of his people in his Parlia­ment, thereof to make remedy and law, and removing the mischiefs and damage which thereof ensue. (And this they say) sith the right of the Crown of England, and the Law of the Realm was such.

Nor indeed can I apprehend any colourable pretence, much less a probable reason, that if the Ba­rons had 49 H. 3. usurped the So­veraign power into their hands, [Page 62] they should 1. So easily and spee­dily divide and share it with the Commons, constitute a new Court of Parliament, and make them essen­tial and coordinate with themselves in the Legislative Power: sure we know it is natural for all Courts, ampliare & non diminuere Jurisdictio­nem. 2. That at that Parliament the numerous Barons (as they stile them) should but summon 23. of their own Order, when the Arch­bishops, Bishops, Abbots, Priors and Deans, made 120, if we must be concluded by the Records. If there were then two Houses of Parliament, and that the Knights, Citizens, and Burgesses, did not sit with the Lords, the Prelates ha­ving so great advantage of the Temporal Lords in their Votes, were very unkind to the Crown they made not use of their over­ballance for the delivery of the [Page 63] King and Prince, then said to be in Custody. 3. Nor have I yet met with any reasons given, why when the Government of the whole Kingdom was at this Parlia­ment of 49 H. 3. to be setled af­ter so long and bloody a War, the Barons being then so victorious and numerous, as our modern Au­thors say, they would by their ab­sence hazard and endanger the loss of all by entrusting the Prelates and Commons with the over-bal­lance. Many remarkable observa­tions might be raised upon this Record, both as to the Lords and Commons, but I will now pass to my eight Argument, con­cluding this with M^r Pry [...]s opini­on, M^r Pry [...]n's Pre­face to S [...] Ro­b [...]rt Cotton's A­bridgment of the Records i [...] the Tower. how the Parliament Rolls be­fore E. 3. came to be lost or de­stroyed. I will use his own words. That there are no Records at all in the Tower (except some few an­tient [Page 64] Charters or Exemplifications of them) antienter than the first year of King John, all the rest from William the first his Reign till then (except some few in the Exchequer not relating to Parliaments) being utterly lost, the first Parliament Rolls yet remaining are these, 5, 8, 9, and 19^th of King E. 2. the Statute Roll of H. 3. E. 1. E. 2. containing some Statutes made in their Reigns, a Parchment Book of some Pleas in Parliament during the Reigns of King E. 1. and 2. and a few Bundles of Petitions in the Parliaments of 6 E. 1. and 1, 2, 3, and 4 E. 3. none of which are here abridged (viz. in the A­bridgment by him published) only I find in the Clause Patent Charter and Fine Rolls of King John, H. 3. E. 1, and 2. some Writs of Sum­mons, and some memorials of Acts, Ordinances made, and Aids, [Page 65] Subsidies, Dismes, Quindisms, Cu­stoms granted in Parliaments, held during their Reigns, the Rolls whereof are perished and quite lost, either through the negligence of the Record Keepers, or the In­jury, Iniquity of the times during the Civil Wars between the King and Barons, in the Reigns of King John and H. 3. and betwixt the two Houses of Lancaster and York, Rot. Pari. 1 [...] 4. n. 8. [...] Richard [...] [...]it Rot [...] Pa [...]a­m [...]nti [...] [...] suo [...] & d [...]i. for the Title of the Crown, where­in (it is very probable) the pre­vailing King's parties, by their In­struments, imbezled, suppressed such Parliamentary Records and Proceedings, as made most against their Interests, Power, Preroga­tives, Titles; or through the de­fault of our Kings great Officers and Attornies, who sending for the Parliament Rolls out of the Tower, upon special occasions, ne­ver returned them again for rea­sons [Page 66] best known to themselves, by means whereof, those Parliament Rolls being no where to be found, their defects must be supplied only out of such fragments and memo­rials of them, as are extant in our other Records and antient Histori­ans, especially in Matthew Paris, Matthew Westm. William of Malmes­bury, Henry Arch-Deacon of Hun­tingdon, Roger de Hoveden, Simeon Dunelmensis, The Chronicle of Brompton, Radulphus de Diceto, Ra­nulphus Cestrensis, and Thomas of Wal­singham, who give us some ac­compts of their proceedings and transactions, which else had been utterly buried in oblivion, as well as their Rolls wherein they were at large Recorded, as is evident by the Parliament Rolls yet ex­tant.

The EIGHTH ARGUMENT.

IT would be tedious to set down the various and wan­dring opinions and reasons of our modern Authors in English, touch­ing the beginning of our Parlia­ments, and constituent parts there­of, especially of the Commons, as now called and comprehended in the Knights, Citizens, and Burges­ses in Parliament: I will but in­stance in a few eminent Authors, and leave the Croud behind.

The great Antiquary, Mr. Lam­berd [Page 68] holds, that they were before Lamberd Ar­chion. sol. 246. the time of William the First, and there are other learned men who give their assent to that as a great truth.

Mr. Prynn saith, By all the anci­ent Prynns Truth Triumphing over Falshood, Antiquity over Novelty, sol. 69. Parliamentum Synodus mag­n [...] nun [...]r Somneri Gloss. Presidents before the Conquest, it is most apparent, That all our Pristine Synods and Councils were nought else but Parliaments; that our Kings, Nobles, Senators, Al­dermen, Wisemen, Knights and Commons, were usually present, and voting in them as Members and Judges.

Polydore Virgil, Hollinshead, Speed and Martin, are of opinion, that the Commons were first summon­ed at a Parliament at Salisbury, An. 16 H. 1.

Sir Walter Raleigh in his Trea­tise of the Prerogative of Parlia­ments, thinks it was Anno 18 H. 1.

[Page 69] My Lord Bacon in a Letter to Cabala sol. 65. A [...]. 1621. the Duke of Buckingham, asks, Where were the Commons before H. 1. gave them authority to meet in Parliament?

Dr. Heylin finds another begin­ning, [...] [...] of the [...] World. [...]. and saith, that H. 2. who was Duke of Anjou, was the first Institutor of our High Court of Parliament, which (being an Anjo­vian) he learned in France.

But I cannot find that any of those ever supposed the Commons were first introduced in Parlia­ment 49 H. 3. by Rebellion.

Nor was this opinion entertain­ed by any Author I can meet with, Anno 1529. 21 H. 8. for in an an­swer of that great and excellent person Sir Thomas More, Lord Sir [...] Mor [...] 's Works, sol. 296. Chancellor of England, in his sup­plication of Souls against the sup­plication of Beggers, discoursing about King Johns making (in the [Page 70] 14^th year of his Reign, and three years before his granting Magna Charta) the Realm Tributary to the Pope, declares his Judgment without any doubt or hesitation, and therein as I take it the univer­sal tradition and belief of all learn­ed men of that and precedent times:

That the Clergy and all the Lords and Commons of the Realm made the Parliament in the age of King John, and that never could any King of England give away the Realm to the Pope, or make the Land Tributary without their grant; whose Book, and so his opi­nion we find approved of and pub­lished by a grave and learned Judge of the Kingdom, Mr. Ju­stice Willtelmus Ra­stall S [...]rviens ad lige [...] constita­tus Jast [...]. de [...]. Tesre Rege apud [...]. 2 [...] Octo­br. [...]. Par. [...] [...] 61 [...] & [...] Rastall, and dedicated to Queen Mary her self, An. 1557. not much above a Century ago.

The NINTH ARGUMENT.

AS great a right and privi­ledge surely was and ought to be allowed to the English Sub­jects as was to the Irish before 49 H. 3. and if that be admitted, and that their Commune Concilium, or Par­liament, had its Platform from ours, as I think will not be denied by any that have considered the Histories and Records touching that Land, we shall find the two [Page 72] ensuing Records, An. 38 H. 3. clearly evince, that the Citizens and Burgesses were then a part of their great Council or Parlia­ment.

That King being in partibus Rot. Pat. [...] H. [...]. 4. [...]. transmarinis, and the Queen being left Regent she sends Writs in the Kings name directed Archiepiscopis, [...]. Episcopis, Abbatibus, Prioribus, Comi­tibus, Baronibus, Militibus, liberis Comi­nibus, Civibus & Burgensibus terrae s [...] Hiberniae, telling them that mit­timus fratrem Nicholaum de Sancto Neoto, fratrem Hospi [...]i Sancti Jo­hannis Jerusalem in Anglia ad par­ses Hiberniae ad exponendum vobis (together with I. Fitz Geffery the Kings Justice) the State of his Land of Vascony endangered by the hostile invasion of the King of Ca­stile, qui nullo jure sed potentia sua con­sisus terram nostram Vasconiae per ip­sius fortitudinem à manibus nostris au­ferre [Page 73] & à Dominio Regni Angliae se­gregare Inquisitio facta ad Parliamen­tam de Tristel Dermond die Mercurii prox­ima post Festion Sanctae Trini­tatis An. 48 H. 3. Coram Do­mino Ricardo de Rupella Ca­pitali Justicia­rio Hiberniae & co [...]am Domi­no Hugone de Tachmone E­pi [...]po Midensi tane T [...]s [...]ra­ri [...], &c. Ex Re­g [...] Archit­pi [...] Dublini­ensis. Parlia­ment in Ire­land, A [...]. 48 H. 3. proponit. And therefore universitatem vestram quanta possumus affectione rogantes quatenus nos & jura nostra totaliter indefensa non deserentes nobis in tanto periculo quantumcun (que) poteritis de Gente & pecunia subve­niatis, which would turn to their everlasting honour, concluding his nostris angustiis taliter compatientes quod nos & baeredes nostri vobis & hae­redibus vestris sumus non immerito ob­ligati. Teste Regina & R. Comite Cornubiae apud Windesor, 17^o Die Februarii, per Reginam.

The other Writ somewhat va­ries, Ibid. [...]. being a Commission touching the Chief Justice Fitz Geffery, to be as an Assistant or Co-commissio­ner with Father Nicholas, to hold the Parliament, to declare to them the State of Gascony, & pericula nobis imminentia, & ad tractandum vobis­cum super auxilio nobis faciendo, against [Page 74] the King of Castile, desiring they would give Faith to what the Chief Justice should say to them there­upon.

Rot. Pat. 5 E. 1. m. 13. we Rot. Pat. 5 E. 1. m. 13. read: Rex Archiepiscopis, Episco­pis, Abbatibus, Prioribus, Comitibus, Baronibus, Militibus, & omnibus aliis Anglicis de terra Hiberniae, &c. vobis mandamus quod ad cer­tos dies quos ad hoc provideritis, vi­delicet citra Festum Nativitatis bea­tae Mariae Virginis, in aliquibus locis opportunis conveniatis, & diligen­tem tractatum inter vos habeatis, utrum fuerit praejudicio vestri & li­bertatum & consuetudinum vestra­rum, that the meer Irish should use and enjoy the same Laws and Customs in common as the English there, and to send their Judgment and Counsel, un­der the Seal of the Justice of Ireland. And in the twentieth [Page 75] Year of this King, Magnates & Rot. Pat. 28 E. 1. m. 15. De 15¹ Regi in Hi­bernia con [...]essa taxand. Inhibition ne qui Mag [...]atis, vi­delicet Comes, [...], Milis, s [...] ­ali [...]ua alia no­tabilis person [...] transeat a [...] par­tes transmari­nas. Rot Claus. 3 E. 2. m. 16. 19. dorso. probi homines Terrae Hiberniae quint amdecimam partem de bonis & catallis suis concesserunt gratiose to the King, which certainly was done in the Generale Concilium, or Parlia­ment, and that the general phrase (probi homines) did include and comprehend the Citizens and Bur­gesses to be part of that General Council, for Rot. Claus. 7 H. 3. m. 7. dorso, the Citizens of Dublin are called Probi homines nostri Dublyn.

From hence may be observed, 1. That by the Patent Rolls of 38 H. 3. the Citizens and Burges­ses were summoned to meet at the great Council or Parliament, as well as the Prelates, Earls, Barons, Knights, and Free-holders, and equally desired to give the King a Subsidy of men and money.

2. That though in the Writ of E. 1. the Citizens and Burgesses [Page 76] are not mentioned eo nomine, the phrases of directions in Writs be­ing in those Ages very various, sometimes more general, and some­times more particular; yet the words omnibus aliis Anglicis after Ba­ronibus & Militibus, must compre­hend the Citizens and Burgesses, who were to meet and diligently to treat with the Archbishops, Bish­ops, Abbots, Priors, Earls, Barons, and Knights and Freeholders, whe­ther it would be in prejudice of their Liberties and Customs, if the meer Irish should enjoy the same Laws and Customs as they of the English extraction did, and they were to join in giving their judg­ment and counsel with the rest of the Parliament. And reason it self speaks it, since the admission of the meer Irish into equal priviledges and rights with themselves in their Cities and Towns, would be of so [Page 77] great a consequence to them; for upon the Kings granting by Char­ters to several Irish Families, the benefit of the English Laws, great disputes arose, so that Rot. Claus. 10 E. 2. m. 28. intus, upon a Peti­tion to the King, he granted that semel in anno tene [...]tur Parliamentum to redress their grievances touching the Irish and English Laws, and so the word Parliamentum ascertains what those Councils were in the Patent Rolls of 38 H. 3. and 5 E. 1. before-mentioned.

And now I will close my Argu­ments, declaring under the good favour of so eminently learned Au­thors, that their resolves and opi­nions which they have published to the World, that the inception and original Election of Knights, Citizens, and Burgesses, or the ad­mission of the Commons of England (as now phrased) into Parliament [Page 78] by Rebellion and Treason, Anno 49 H. 3. are not at all satisfactory and convincing in my judgment, unless they give more certain and greater testimonials than yet I have met with, and answer these few Re­cords against their so severe Position. A Position, believe me, that like a tempestuous Whirlwind, not only rends off and dismembers an essen­tial branch, but shakes the very Root of the right and honour of our English Parliament, and equal­ly wounds both Lords and Com­mons, because these learned Au­thors themselves do agree, that there is not yet discovered any for­mal Summons of the great Lords (no more than of the Commons) to any Parliament before the said 49 H. 3.

And here I must beg the favour of the Reader of adding a supple­mental Argument, which at first I [Page 79] confess was not intended, and it is this.

If in the General Councils, or, in our present Dialect, Parliaments, for instance, 1. Of France, 2. Spain, 3. Portugal, 4. Den­mark, 5. Sweden, and 6. Scot­land, the Cities and great Towns or Boroughs, have from time im­memorable, both de jure and de facto, had their Delegates or Re­presentatives:

Upon what authority or reason can it be believed, that so universal a Nor­thern Custom or Law, did not obtain and was never practised in England before 49 H. 3?

1. FOR France we find their Paul [...]s Aemili­us Hist. Franc. Lib. 9. Conventus ordinum, or L'as­semblie des Estates, consisted de Sacer­dotio, Nobilitate & plebe, of the Cler­gy, Nobility and Commons, this [Page 80] is evident by the Parliament Roll Rot. Parl. 9 H. 5. n. 14. Pars 1^a. Approbatio pacis inter R [...]g­na Angliae & Franciae nuper conclusae. Rot. Parl. 11 H. 7. n. 40. in consimiliforma. 9 H. 5. which takes notice of the peace made between England and France, that the same was confirm­ed in France, per tres Status regni, viz. Praelatorum & Cleri, necnon Pro­cerum & Nobilium ac etiam Civium, The last of which, being the Citizens and Burgesses, appeared by their Repre­sentatives or Delegates. Burgensium, Civitatum, Villarum & Communitatum dicti Regni Fran­corum, ipsi tres Status eandem pacem & omnia & singula contenta in eadem APPROBARUNT, LAUDARUNT, AC­CEPTARUNT & AUCTORIZARUNT. It seems by this that the French Kings were not so despotical and ab­solute by the fundamental Laws of that Kingdom, as their Successors have by acts of power since made themselves.

2. In Spain their Curia or Cortes del Reyno, is compounded (as Dr. Heylin cites out of the learned Bo­din) of the Clergy, the Nobility, and the Commissioners of the Pro­vinces and antient Cities.

[Page 81] 3. The Portugal Cortes or Parlia­ment The Portugal History. Im­press. An. 1677. pag. 279. consists of the Bishops and Prelats, the Nobiles majores & mi­nores, and two Procurators or Bur­gesses from every City, who have a deliberative voice, which they call definitive.

4. In Denmark, Pontanus saith, P [...] in Hi­ [...] the Bishops, the Nobility, & Civi­tatum Delegati, the Deputies or Commissioners of Towns and Cities, made up their General Council.

5. For Sweden, it does not much Th [...]anus Hist. Lib. 131. fol. 1108. Tom. [...]. differ from the Government and form of Denmark, their Common Council consisting of the same Estates and degrees of people, that is to say, Proceres & Nobiles, the greater and the less Nobility, Epi­scopi & Ecclesiastici, Civitates & U­niversitates, the Cities, Boroughs and Villages.

I might here if it were needful, [Page 82] shew how great a share and inter­est the Hanze or free Towns in Germany have by their Deputies in all Ages had in the Diet or Gene­ral Council of the Empire.

6. But now at last we are come to Scotland, Sir John Skene in his E­pistle Regiam Maje­statem Scotiae. Dedicatory to King James, before his Scottish Laws, writes thus. Intelligo tuas tuorum (que) Majorum Leges quae cum Legibus Regni tui An­gliae magna ex parte consentiunt; and then in his Book shews, that Wil­lielmus cognominatus Leo, who as is said, begun to Reign in 1105. and reigned 49. Years, so as he was King of Scotland 5¹⁰ of our Henry the first, held his Assise or Parliament at Apud eundem Statuta Wil­helmi Regis, pag. 3. cap. 7. Perth, where several Laws were ordained, to the observance where­of, Episcopi, Abbates, Comites, Barones, Thani & tota Communitas Regni te­nere firmiter juraverunt.

[Page 83] King Alexander began to Reign [...] Statut [...] Alexandri [...], pag. 2 [...]. [...]. 2. Anno 1214. which was the six­teenth Year of our King John, and Reigned 35. Years, so as he died an. 38 H. 3. he made his Laws de Consilio & assensu venerabilium Patrum Episcoporum, Abbatum, Baronum ac proborum hominum suorum Scotiae. And R [...]. [...]. [...] [...] 2. [...]. 2. [...] [...] Exon. Wor [...] Hunt. [...]. &c. what the Communitas Regni in King William's Statutes, and the prob [...] ho­mines in King Alexanders, were, the League made between the French King and the Crown of Scotland, Anno 28 E. 1. clearly shews, be­ing Ex [...] in [...]ri London. 28 E. 1. ratified and confirmed in their Parliament, per Johannem de Balliolo, then King, ac Praelatos & Nobiles & Universitates & Communitates Ci­vitatum & Villarum dicti Regni Scotiae; and the constant practice ever since hath been, that the Ci­ties and Boroughs have sent their Proxies or Representatives to the Par­liaments of that Kingdom.

[Page 84] It may therefore seem very strange, that when the Cities and Boroughs in all the Kingdoms of Europe, de jure and de facto were ab antiquis temporibus, even in times coeval with the Government, an es­sential part of their Common Councils or Parliaments, that England should not be under the same constituti­on, being but descendants from Gaul, or the more Northern Coun­tries; if so,

1. Was it because in the Britton, Saxon and Norman times, there were no Cities or Boroughs, or if there were, were they so poor and in­considerable, as they deserved no observation in the eye of the State? or,

2. Was it because, by a strange and unheard of fate, peculiar and proper only to them, they were not fit or capable to give or hear reason, as well as the Delegates or [Page 85] Representatives of the Cities and Boroughs of France, Spain, Por­tugal, Denmark, Sweden and Scot­land? or,

3. Had they no property or right in their Estates? Certainly, in my opinion, none of these Objections can be admitted, allowed, or pro­ved; for

In the Brittons time, venerable [...] [...] [...]. lib. 1. cap. 1. Bede tells us. Erat Britannia viginti & octo Civitatibus quondam Nobilissi­mis insignita praeter Castella innumera, quae & ipsa muris, turribus, portis ac seris erant instructa firmissimis. Nor were they of less reputation in the Saxon or Norman times, when they were thought so necessary and pro­per for the safety of the Govern ment, preservation and defence of the Laws, that it was ordained by William the First, and the Common [...]. Council of the Kingdom; That no Market or Fair should be permit­ted [Page 86] to be held, nisi in Civitatibus Regni nostri & in Burgis ubi consue­tudines Regni & Jus Commune & dig­nitates Coronae nostrae deperiri non pos­sunt nec defraudari nec violari, sed omnia recte & in aperto & per Judicium & Justitiam fieri debent, &c. ad tuitionem gentium & populorum regni & ad de­fensionem Regni. And if in the Brit­tons times the Nation was so strong in Cities and Castles, surely it can­not be imagined but that in the Saxon and Norman times, when the Nation became to be more civili­zed and considerable in the World, the Estates or Degrees of the In­habitants [...] [...] [...] spi­ [...]. [...]od. de [...]. Lib. 1. Cap. 3. would easily part with these Liberties and Priviledges, which their Ancestors, though less knowing and powerful, did claim and enjoy.

Having thus concluded my Ar­guments against the Position of 49 [Page 87] H. 3. I have thought it not alto­gether impertinent, to add some brief Observations for the better un­derstanding of antient Records, and Historians in their various Lecti­ons and different expressions. I shall therefore consider,

• 1. The different application of the words Commune, Communitas, or Plebs.
• 2. The several Denominations by which our antient General, or Com­mon Council or Parliaments, were expressed.
• 3. The various acceptation of the word Baro, and that under the Phrase of Baronagium Angliae, both Lords and Commons were com­prehended.