THE PILLARS OF PARLIAMENT Struck at by the Hands of A Cambridge Doctor, OR, A SHORT VIEW Of some of his Erroneous POSITIONS, Destructive to the Ancient Laws & Government OF ENGLAND.

To which is added The true State of the Doctor's Error about the Parliament, 49 H. 3.

By William Petyt, of the Inner Temple, Esq;

LONDON, Printed for Tho. Simmons, at the Princes Arms in Ludgate-Street MDCLXXXI.

THE PILLARS OF Parliament STRUCK AT By the HAND of A Cambridge Doctor, OR, A SHORT VIEW Of some of His Erroneous Positions, &c.

ABout a Tear and a half since, I did, in a small Treatise, assert the Ancient Right of the Commons of England in Parliament: And therein maintained,

That the Commons of England, represented My Discourse. pag. 1. by Knights, Citizens and Burgesses in Parlia­ment [Page 2] did not begin to be an Essential part of Par­liament, Anno 49 H. 3. by Rebellion.

To which there lately came out a pretended Full and Clear Answer: wherein the Author thereof affirms,

That the Commons of England, represented Pag. 1. by Knights, Citizens and Burgesses in Parlia­ment, were not introduced, nor were one of the three Estates in Parliament before the 49th of H. 3.

The Dignities, Learning and Fame of the supposed Author of the Book being so great, it is but fit that the Use, End and Scope thereof should be better known, and understood, than yet it is. In order whereunto I have, for the Publick Good, (got time) to make a small Ab­stract, or Compendium, of some of the Prin­ciples which the Answerer hath asserted and laid down therein. Which are these following.

What Interest the Commons of England had in the Parliaments of the Saxon Times.

THere are no Commons to be found in the Pag. 20. in the Margin. Saxon Great Councils.

Nor any thing that tends towards the Proof of Pag. 13, 14. the Commons of those Times, to have had any Share of making Laws in those Councils.

The Commons as at this Day known, not to Pag. 130. in the Margin. be found amongst the Community of England in Old Historians.

In the Norman Times.

THat William the Conqueror claimed by Pag. 35. in the Margin. the Sword, and made an Absolute Con­quest.

For, without doubt, there was no English-Men Pag. 37. in the Common-Council of the whole King­dom.

For the English had neither Estates nor For­tunes Pag. 43. left; and therefore it could be no great matter to them, by what Law, Right or Proprie­ty other Men held their Estates.

[Page 4] William the Conqueror divided all the Lands Pag. 176. in England amongst his great Followers, to hold of him.

The Free-men of England, being French, Fle­mings, Anjovins, Britains, Poictovins, and Pag. 35, 37, 38. People of other Nations, who came in with the Conqueror, and to whom his Magna Charta was made; not to English-men.

These were the Men the only Legal Men that nam­ed, and chose Juries, and served on Juries themselves, Pag. 39. Nota. When be a­grees they un­derstood not a word of English Law or Lan­guage. Pag. 30. Nota. As this is pre­carious, so it is certainly false and impracti­cable, and di­rectly against Domes-day-Book, and the Evidence and Testimony of the Historians and Laws of that very time. both in the County and Hundred Courts, and dispatched all Country business under the Great Officers.

If therefore the Justiciaries, Chancellors, Earls, Sheriffs, Lords of Mannors, such as hear'd Causes, and gave Judgment, were Normans; if the Lawyers and Pleaders were also Nor­mans, the Pleadings and Judgments in their several Courts must of necessity have been in that Language, and the Law also the Norman-Law; otherwise they had said and done they knew not what, and judged they knew not how: especially when the Controversies were determined by Military-men, Earls, She­riffs, Lords of Mannors, &c. that under­stood not the English Tongue or Law: Or when the Chief Justiciary himself was a Military-Man, as, it often happened, and understood only the Norman Language; and 'tis hardly to be believed, these Men would give themselves the trouble of learning and understanding the Eng­lish-Law and Language. Gloss. pag. 27. Nota. Let him prove it to save his Credit.

These were the Free-men which made such a Cry, for their Liberties (as appears by Magna [Page 5] Charta) most of which is only an Abatement of the Rigour, and a Relaxation of the Feudal Tenures; Nota. Why then may not the like Reason hold a­gainst the In­troduction of the Commons to be first a part of Parlia­ment by the Victorious and Numerous Ba­rons after the Battel of Lewes, Anno 49 H. 3. Pag. 210. They send out Writs in the King's Name to summon a Parliament. the rest were but only Followers, and helped to augment the Noise; they were no Law-makers, as this Gentleman (meaning me) fondly imagines. For it is not probable that those Men that had the force of the Nation, would permit Men of Small Reputation to share with them in Law-making. Those that had the Power of this and other Nati­ons De Facto, always did give Laws, and Tax the People.

After Symon Montford Earl of Leicester and the Numerous Barons had taken Hen. 3. and Prince Edward Prisoners at the Battel of Lewes, and a New Government was framed and set up, they (Anno 49 H. 3.) sent out Writs in the King's Name unto divers Bishops, Abbots and Priors, and to such of the Noble-men as were of their own Party; to the Sheriffs of Coun­ties, Cities, Burroughs, and the Cinque-Ports.

P. 224. Dugd. Baron, fol 75 [...]. col. 2. The pro­bable cause that moved Mont­fort to summon this Conven­tion. Nota. How could that be, when the Numerous Barons (as they say) had all things in their Power. And without doubt, as others have Con­jectured before Me, the danger that Symon and his Privado's apprehended from the Concourse of the Nobility and their great Retinues, and the Example of his and the Barons Practices at Ox­ford, was the reason why they (Anno 49 H. 3.) altered the Ancient Usage, and of their Sending, Directing, and in the King's Name Command­ing the Sheriffs of each County, the Cities and Burroughs, to send Two Knights, Citizens and Burgesses respectively.

Nota. Here we have the Original, and all the Au­thorities and Proofs that the Commons (as they would have it) began by Rebellion, 49 H. 3. No­ta. For no Man ever dream'd of such an Origine before the Doctor and his Author only. Hence he affirms,

[Page 6] That the Commons of England, represented Pag. 1. by Knights, Citizens and Burgesses in Parlia­ment, were not introduced, nor were one of the Three Estates in Parliament before the 49th. of H. 3.

For the Commons were not comprehended in Pag. 163. in the Margin. the Common University.

For the Noble-men of England, and Council Pag. 165. of the Baronage were the Community of Eng­land.

Barones Regni called to Parliament at the Pag. 227. in the Margin. King's Pleasure.

And what King Henry, a little before his Pag. 228. Death, begun; that is, to call such Earls and Barons, Quos Dignatus est, such as he pleased, Edward the First and his Successors constantly observed.

Having had one great Antiquary's Opinion, (meaning Mr. Camden's) joyned with Matter of Nota. The Original Author of this Fictitious Change is quoted by Camden, fol­lowed by Sir. Robert Cotton; but slighted, bafled, and proved evi­dently false by Mr. Selden in his Titles of Honour, f. 589. 590. and con­trary to the course of Histories and Records of those Ages. Fact, upon the Constitution of the House of Lords.

Let us see the Opinion of another concerning the Origin of the House of Commons, back'd al­so by Matter of Fact. Sir Robert Cotton says, the Victory at Evesham, and the dear Experi­ence Henry the Third himself had made at Ox­ford in the 42d. Year of his Reign, and the memo­ry of the many Streights his Father was driven to, especially at Runnemede, near Stanes, brought this King wisely to Nota. How came the Doctor to quote Sir Robert Cotton, since he is expresly against him? For if what Sir Robert saith was true, the Commons were first called to Parliament by King Henry, after the Battel of Evesham; and then, not by the Barons, nor in 49 H. 3. And so they began, not by Rebellion as the Doctor and his Author say. begin what his Successors [Page 7] fortunately finished, in lessening the Strength and Power of his Great Lords. And this was wrought by searching into the Regality they had usurped over their peculiar Soveraigns, and by weakening that Hand of Power which they carried in Par­liaments Nota. by commanding the Services of many Knights, Citizens and Burgesses to that great Council.

These were the Reasons why those Kings followed Montfort's pattern, Nota. Not a Syllable of Mont­fort's Patern in any of his Au­thors cited by him, except his own Contemporary Author. to secure themselves against the Tu­multuous, Insolent and Seditious Practices of the Barons.

And, as according to the Opinions of these great Antiquaries, these new Con­stitutions of Parliament had their Nota. All deceived by Cam­den's Author; not an Historian or any Record mentioning one word of such an Alteration, though several lived and writ in the very time. Origin from the King's Authority; so from the same Authority and Time it was, that this most excel­lent Great Council received its Per­fection, Nota. The Doctor fancies that the present Constitution both of Lords and Commons be­gan, Anno 49 H. 3. and after, and was setled by E. 1. and his Successors; but proves not a tittle of the matter of fact. and became exactly fitted for the Government of these Nati­ons, as it seems to be very evident from these following Records.

And then the Doctor prints seve­ral Nota. The Doctor's mani­fest Error in making Writs of Summons to Magna Concilia to be Summons to Parliament. Writs in the Reigns of E. 1. E. 2. and E. 3. for summoning sometimes one, sometimes more Knights, Citi­zens and Burgesses to such Great Councils as had no power to make Laws, but were only cal­led upon the suddain, to give Advice and Counsel. Yet the Doctor would have these to be Parliaments, (a plain, if not a designed Error) with several dangerous Notes or Infe­rences [Page 8] in the Margin, as the Reader may ob­serve, pag. 230, 231, 232, 233, 242, 243, 246, 248, 249.

The King and his Council judges whether and Pag. 79. in the Margine. Nota. Thus the Do­ctor insers from this Clause in the Record: Et tunc fiat eis super hoc Justitia vo­catis evocandis si necesse fuerit. when Burgesses ought to come to Parliaments.

The Great Charter, commonly at­tributed to Hen. 3. and styled his The Doctor's Jani Anglo­rum facies Antiqua, pag. 63, 64. Nota. The Doctor, to serve his turn, fondly designs to de­stroy Magna Carta of H. 3. and make E. 1. live before his Father and Grandfather were born. Nota. A convincing Argu­ment that because the Charter of H. 3. is enrolled by Inspexi­mus, Anno 25 E. 1. in haes ver­ba, Henricus, &c. Therefore it was properly his Charter, and not H. 3. Charter, was properly the Charter of E. 1. or perhaps rather his Expli­cation or Enlargement of that Char­ter of King John and H. 3.

For we find not the Great Charter, either of that, or King John's Form, in any of the Rolls, until the 25th of E. 1. And he had a greater sum of Money for confirming this Charter than H. 3. had, as 'tis recorded in the Summons to Parliament for that purpose.

In this Charter then confirmed, there is no pro­vision Ibid. 64. made for any Summons to Great Coun­cils, or Parliaments: And the Rea­son may well be, because the Consti­tution Nota. All this is to prop up a new and mistaken Norton, that Tenants in Capite by Mili­tary Service only made the Parliament, till 49 H. 3. of Great Councils or Parlia­ments was lately changed from what it was in King John's time, and un­til the 49th of H. 3. nor perhaps was it so fixed, and peremptorily resolved on at this time (viz. 25 E. 1.) what it should exactly be for the future, as to have it made an Article of the Charter: And to this Con­jecture, Nota. Here the Do­ctor again re­fers to his mistaken Writs of Summons to Great Councils for Parliaments, temporibus E 1. E. 2. E. 3. which he hath printed, and by them would give a colour to his and his Author's marvellous change of the ancient Government of the Kingdom, Anno 49 H. 3. never found out or discovered by any before. the frequent Variations of Summons to [Page 9] Parliament in those times do give a probable Confirmation.

Thus far our Doctor.

Nullus Erranti Terminus.

But I will not say with him, that here are any Aery Ambuscades, Whimseys, Mar­vellous Nonsence, Gross Ignorance of Histories and Records, admirable and idle fan­cies, and a Troop more of such gentile Ex­pressions, which our Answerer hath been pleased to give that ingenious Gentleman, Mr. Atwood of Grays-Inn, and my self. All strong Author of Ja­ni Anglorum Facies Nova. Arguments and high Civilities, scarce well be­coming the Doctor in all his eminent Quali­fications.

But to come to

The True State of the Doctor and his Au­thor's Error about the Parliament, 49 H. 3.

AFter Matthew Paris, and Rishanger his Continuer, had given them an Account of the Wars between H. 3. and his great Ba­rons; and that at the Battel at Lewes, Anno 48. of that King, he and Prince Edward were ta­ken Prisoners by Symon Montfort, Earl of Lei­cester (General for the Barons) In the Year [Page 10] following, which was 49 H. 3. they meet with Rot. Clan. 49 H. 3. in Sche­dula. a Schedule affixed to the close Roll; wherein there are Writs of Summons entred for calling Two Knights for each County; Two Citizens, Two Burgesses for every City and Borough, and Two Barons for every of the Cinque-Ports, to meet in a Parliament at London in the Octaves of St Hillary. What to do?

Nobiscum ac cum proedictis Prelatis, & mag­natibus Dugdale's O­rigines Juridi­ciales, fol. 18. col. 1. nostris, quos ibidem vocari fecimus super proemissis tractaturi, atque Consilium im­pensuri. To treat with him the said King, and with the Prelates and Great Men of the Land, touching the Premisses, and to give their Advice.

Now because this Writ of Summons falls, as the Doctor saith, in the Nick of time with the Historian, when the King and Prince were in custody of Symon Montfort, He and his Author Pag. 221. will needs thereupon nick the House of Com­mons; and have this Summons to be the very First and Original Writ of Summons to Par­liament, that ever was of this nature, that in this Critical Tear, at this very time, there be­gan a wonderful Change, and a marvellous Al­teration of the ancient Form of our English Par­liaments; and that before the Commons were never any part thereof; but then had their Origine and Beginning to be so by this Re­bellion.

When as,

1. If that Roll had been lost, as all the Par­liament. Rolls of those times are, it cannot ap­pear that there were any Summons to Parlia­ment, [Page 11] either to the Lords Spiritual, or Temporal, Dugdale's O­rigines Jurisd. fol. 18. But to point out who they were (viz. Barones Majores) that had their first Rise by Writs of Summons, until 22 E. 1. and afterward, passeth my skill, there being no publick Record that doth make mention of them till then except that of 49 H. 3 Dugdale's Pref. to his Baronagium Angliae, Tom. 1. The Doctor, pag. 225. or Commons, till 22 and 23 E. 1. thirty Years af­ter 49 H. 3. though it is evident and certain, both from the printed Books and Records, there were above fourteen Parliaments in the interim. And our Doctor himself and his Author agree, that both Lords and Commons were present and Parties in the Parliament, Anno 52 H. 3. at Marlborough, three Years after 49 H. 3. and al­so in the third Year of E. 1. (which was eleven Years after 49 H. 3.) at a Parliament at West­minster, though there are no Writs of Sum­mons, either of the Lords or Commons, nor any Rolls yet found out of those Parliaments.

2. Neither do their own Historians whom Nota. According to the Doctor, Mr. Camden and his Au­thor speaks not any thing of the Com­mons, but only of the Lords and their Peers. they make use of, nor Matthew Westminster, whom the Doctor cites too, who writ in the Reign of E. 1. Son to H. 3. and who particu­larly gives an Account also of those Wars, nor any Historiographer or Lawyer, nor any Re­cord of that or succeeding Ages, ever mention one Word of any such Change or Revoluti­on in 49 H. 3. as our Doctor, and his single Author by tacking Nota. The Doctor and his Author having tack'd and patch'd together the Histori­an, and Writs of Summons to a Parliament, 49 H. 3. is their only Evidence that the Com­mons begun by Rebellion in that very Year. and patching their Historian and Writs together, have inferred and maintained in their Books. Be­sides the Form of Acts of Parlia­ment, and Expressions both in Hi­storians and Records, are the same both before and after 49 H. 3. and in the Reigns of E. 1. E. 2. and E. 3.

[Page 12] Notwithstanding all which, and Nota. These Arguments, Proofs and Reasons, besides many more, the Doctor hath unfairly concealed from his Readers; yet he hath publish­ed to the World his full and clear Answer to my Book, and particularly to the eighth and ninth Arguments, wherein these Authorities are urged: the Doctor gives this Answer in these very words, p. 143. His eighth and ninth Argu­ments, also his first and second Observations upon the whole matter, have nothing in them worth a serious Consideration. that the Doctor well knew that the Citizens and Burgesses were a Con­stituent Part of the Parliament in Ireland, Anno 38 H. 3. which was eleven Years before 49 H. 3. as I proved in my Book, p. 71. And also by way of Comparison, p. 79. That the Cities, Great Towns and Burroughs, 1. Of France. 2. Spain. 3. Portugal. 4. Denmark. 5. Sweden. And 6. Scotland, have from time immemorable, both de jure and de facto, had their Delegates or Representatives in the General Councils, or, in our present Dialect, Par­liaments. So that it might seem very strange, In the Nor­thern King­doms, Adamus Bremensis saith, that the Bishops, after the People re­ceived Christi­anity, were re­ceived into their Publick Councils. And Loccenius reckons up, among the several Estates, the Bishops, Nobles, Knights and Deputies of the Country and Cities. The learned Author of The Grand Question, pag. 11. that when the Cities and Burroughs in all the Kingdoms of Europe, were ab antiquis tempori­bus, even in the time coeval with their Govern­ment, an essential part of their Common-Councils, or Parliaments; that England, of all the Euro­pean World, should not be under the same Con­stitution before 49 H. 3.

Yet the Doctor and his Author by all their Art and Skill have toiled and laboured to swim against the Stream of so great a Torrent of Rea­sons and Testimonies.

To which, in convenient time, shall be ad­ded many more Authorities, which are first to be carefully examined, and cannot be done in so short a time, together with a Civil and [Page 13] Moderate Reply to the Doctor's Answer; as well on the one hand to acquit my self from the real Passion of our Doctor, to say no worse, though common Prudence might have obliged him to more sober Considerations; as on the other, to vindicate and assert the Honour of our English Nation and Parliaments, against his and his Au­thor's ill grounded Notions. Which, is true, I must agree that the General Understanding and Judgment, as well of the Kings of Eng­land, as of the whole English Nation, and all Fo­reign Writers for so many Centuries of Years, have been marvellously abused and imposed upon, especially King James and His late Maje­sty: Who tell us,

1. That not only the Regal Authority, but King James's first Speech to his first Parlia­ment in Eng­land. Pulton's Stat. 1 Jac. c. 2. f. 1157. the People's Security of Lands, Livings and Pri­vileges were preserved and maintained by the Ancient Fundamental Laws, Privileges and Cu­stoms of this Realm: and that by the abolishing or altering of them, it was impossible but that present Confusion will fall upon the whole State and Frame of this Kingdom.

2. The Law is the Inheritance of every Sub­ject, King Charles the First's De­claration to all his loving Sub­jects, published with the Ad­vice of his Pri­vy Council. Exact Collecti­ons of Declara­tions, p. 28, 29. and the only Security he can have for his Life or Estate; and the which being neglect­ed or disesteemed (under what specious shew soever) a great measure of Infelicity, if not an irreparable Confusion, must without doubt fall upon them.

Lastly, I will for the present give but five or six Jnstances, that the Commons of Eng­land, as now distinguished from the great Lords, were an Essential Part of the General Coun­cils or Parliaments before 49 H. 3.

[Page 14] 1. Bracton, a Grave and Learned Judge, who flourished in the time Bracton, lib. 1. cap. 1. fol. 1. of H. 3. and an Author beyond the Answerer's Exception, 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 Nota dignum, he reduced In unam summam perpetuoe memoriae commendandam: declares the Rule, how Laws were made, not in his own only, but in Ages before.

Cum Legis vigorem habeat, quicquid de Consilio & de Con­sensu This Authority the Doctor took no notice of in my Book. Magnatum & Reipubli­cae communi spontione, Authoritate Regis sive principis pre­cedente juste fuerit difinitum & approbatum.

That that hath the Force and Power of a Law, which shall be justly declared and approved of by the Council and Consent of the Great Men, and by the General Agree­ment of the Commonwealth, the Authority of the King preceding.

2. The Statute of Magna Charta was made and confirmed in Rast. Stat. 9 H. 3. sol. 1. 3. Id. 12 E. 4. c. 7. It is called, The Laudable Statute of Magna Charta. Parliament, 9 H. 3. (which was thirty nine Years before 49 H. 3.) as is evident by these Authorities, which say that It was made.

  • 1. De Communi Concilio Regni.
    Regist. fol. 175. Rot. Stat. 25. E. 1. m. 38.
  • 2. Per Comune assent de tut le Roiaume, en temps le Rey Henry nostre Pere.
  • 3. Per Le Roy, Piers & Com­mune de la Terre.
    Rot. Parl. 15 E 3. num. 50. dor. Enprimes est accorde & assentu que la franchise de seint Esglise & la Grand Chartre & la Chartre de la Foreste & les autres estatatz faitz per nostre Seignior le Roy & ses progenitors piers & la Comune de la terre pur comune profit du people soient firmement gardez & maintenez en touz pointz. Rast. Stat. de An. 15 E. 3. [...]. 1. f. 82. It is accorded and assented that the Franchize of Holy Church, and the great Charter, and the Charter of the Forest, and the other Statutes made by our [...]overeign Lord the King, and his Progenitors, Peers and the Commons of the Land, [...]r the common profit of the People, be firmly kept and maintained in all Points. Rast. [...]at. 12 E. 4. c. 7. The Laudable Statute of Magna Charta, which Statute was made [...]r the great Wealth of all this Land; and in affirmation of the said Statute of the said [...]reat Charter, divers Statutes have been afterwards made and ordained. 1. By

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