Rights of the kingdom, or, Customs of our ancestors touching the duty, power, election, or succession of our Kings and Parliaments, our true liberty, due allegiance, three estates, their legislative power, original, judicial, and executive, with the militia freely discussed through the British, Saxon, Norman laws and histories, with an occasional discourse of great changes yet expected in the world.

RIGHTS OF The Kingdom , &c.

TO see the Kingdoms Rights , the Laws and Customs of our Ancestors , concerning King and Parliament ; that we may know their Power and Priviledge , their Duty and their Limits , &c. and how our Fathers did commit the power of making Laws , and judging by those Laws ; and how they made us swear Allegiance to our King ; what power they gave him over us ; and what they did not give him over any of his Subjects ; how we should behave our selves &c.

He that accounteth these unworthy of enquiry , may be thought ( as the Gretians said to the Persians ) not to have heard of Liberty : Which else would be valued above an Enquiry . But alas , who is able ! who will undertake to trace our Laws and Customs thorough the Heights and Depths , and dark Abysses and Meanders of the British , Saxon , and the Norman Nations that have ruled here ? Yet there are thousands that may do it much better than I ; and therefore I might justly sit in silence , and expect my Antients and my Betters should begin , that I might learn from them . Nor should I now presume to speak , but that I might inform my self from others , that by this occasion may reform my Errours , and may clea● our Laws and Customs , much more fully than I do , or can be able ; who pretend to nothing but desire of Truth and Peace .

And first , to speak of the mutual obligations of Oaths between Prince and People , the School-men would be thought most curious , or most tender , in the point of Oaths : They mince them out so fine , that a whole million of Oaths may stand ( as they speak of Angels ) on the point of a sharp Needle .

They tell us of the Object , and the Subject , or the Matter , which , they say , may cease or fail so much , that any man may find or make himself absolved from his Oaths . But in things of such concernment to ones Soul , I love to speak or think in English , that I may understand my self : and I thought it madness in the man that said his Prayers in two or three Languages , adding this in the close : Now take thy choice ; for all are alike to me : I know not my meaning in either .

In plain English , I do not see I may absolve my self from an Oath , by saying , He was not the man I took him to be , in some material points , at the time of my Oath ; yet this is much , and that which seemeth near to that which the Schools speak of , want of Subject , or sufficient Matter to be ground of such an Oath .

I should have looked to that before ; it may be rash , and so must be repented : but a River of Tears may never wash me from this Oath of God , as the case may stand . And so it was , I suppose , in that of the Gibeonites : they were not such as they made themselves , nor such as Israel took them for : the Oath was rash , unjust ; they ought not to have sworn ; they should have stayed and sought direction : for they were forbidden Leagues with such , commanded to destroy and ruine such as those men were , and might have been suspected . But when it was done , we see how strict and solemn God was still , in pressing them to keep that Oath .

Nor may it suffice to say , I swear against my will ; they had advantage of me ; and I could not but comply , either with some Mental Reservation , or at least ( for that is much condem'd by most ) I am now grown wiser , and do now see I may absolve my self from that which I would not have taken , but by force or fraud .

But can the World , ( this vain and frail and foolish World , ) command , controll , and over-awe my Soul , to take an Oath , the Oath of God , to what I think unjust ? It may be so , for I am Man and frail , with those that are the weakest ; for He knoweth my foolishness : but it should not be , and when it is , I must be very tender , lest I adde more Sin to Sin ; as bad , or worse , to that which is too Bad already ; For , by breaking such an Oath , I may do worse , much worse , than first I did in making it ; except I Swore to sin , and then I may not keep my Oath .

And I believe the Iews might not have pleaded Force , or over-awing Arguments , in Swearing Homage to the King of Babylon ; and yet 't is known how God did charge and chasten that said Perjury ; nor is it altogether inconsiderable that good Lot's , or at least the men of Sodom's freeing themselves from Chedorlaomer , is stiled by God himself , plain downright Rebellion ; Yet there was another King of Sodom , and Chederlaomer seemeth but a kind of Tyrant , that had but little Right but Conquest and his Might .

The Catholicks may seem too free in dispensing with Oaths to Protestant Kings ; but some there are with them , Sacred Persons : And because I now dispute ad Hominem , I shall touch on that in which we know them most Religious , Their solemn Obligation to the Pope ; which yet is such , they will not deny , as doth not secure or free him from being Iudged , or Coerced in cases of Distraction , Natural in Raving , or Moral in Raging , so that danger be apparent to those about him , or in some Spiritual Frenzie of notorious Heresie Convict ( the Chair in Conclave , not the Person is exempt , ) or much suspected ; while himself refuseth Legal Tryal by a Council or the like . The Case is argued in Occhams Dialogues with others .

Our Oath of Fealty comes next upon the Test , although I might interpose ( as a Parallel to the Pope ) the Iewish High Priest , a very Sacred Person , and the Lords Anointed also ; but yet such as must still submit to the Sentence of the Great Sanhedrin , nay , and that for his Life also if they so adjudged him ; For which of the Sanhedrins Power over the Jewish King , in Criminals and in War , ( except only what God had commanded against Amaleck or the seven Nations , ) I might cite several clear passages from the Talmud , and those that expound it long before Cochius or Sanhedrin , or Schickards Ius Regium .

Our Land seemeth to Mourn because of Oaths ( but I must only touch the civil Part , or what is Legal , ) and our Law seemeth Deficient in this of Oaths , for there is scarcely any Law ( since the Star Chamber ) to punish Perjury ; but only where it is before a Court of Justice ; and there also the Punishment of Witnesses is very light , and exceeding short of Attaint , on Jurors , by the Common Law .

Our Customs seem to overgoe our Laws , in much of Oaths , They were but Attestations , though most Solemn , in the Name and Presence of God , As the Lord doth Live .

But they are now brought to Imprecations , or a kind of Curse , So help me God , and the Contents of this good Book . Yet so it was of old at Combat ; on Appeal ; the Appellè did first devote himself .

Again , some force a Kissing of a Book : the Law requireth but a Sight and Touch. For ought I find , the Saxon Jurors were Sacra Tenentes . In the first Norman times , it was Sacris Tactis ; and in later writs , Evangelijs Tactis ; Nay , the Priests hand was upon his Breast , ( in Matthew Paris ) not upon the Book , and the Villain seemeth forbidden to touch the Book . The Statute saith , he shall hold his Hands over it , but the Freeman upon it ; and from this Touch with the Body , such an Oath was called Corporal .

The Iews and eldest Christians , ( in their Swearing , Blessing , Praying , ) lifted up the Hand , and sometimes Bowed the Head or Knee ; for , In his Name shall all Knees bow , seemeth but Parallel to that of the Psalmist , In thy Name will I lift up my Hand ; and the Grecian or Trojan Princes , lifted up their Scepters in Swearing , but others held Earth and Water , in Allusion perhaps to the sacred Styx .

Most , if not all publick Officers were tyed to their Dutyes , by some Oaths , but they were made by Parliament , in all Ages ; This being a Pillar in our Laws , that none can make , alter or impose an Oath , without an Act of Parliament , or Custom by the Common Law .

'T is strange , how much in all we degenerate from our good Ancestors ; So that with us to break ones Oath , ( even in the greatest Office ) is but a kind of Petty Aggravation ( as they call it ) rather than a Crime ; because such Oaths be now accounted but meer Forms , or Ceremonious Shaddows .

But it was not so , ab initio ; and among other Precedents , I find the old Mirrour , speaking of a Chancellour of England charged with Perjury , for taking a small Summe of Money ( half a Mark , ) for Sealing of a Writ , which was against his Oath ; being neither to Deny , Delay , or Sell Justice or Remedial Writs . ( Yet Six Pence was allowed to the King for Sealing of a Writ ) How great a Crime they did account such Perjury , I need not say to Lawyers , or to any that have read the Saxon Parliaments .

But of all our Oaths , those seemed to be most content to be counted Formal ; That they were imposed on meer Children of a dozen Years old ; how many such we have or had in great Schools or Universities , may be known and felt too much I fear .

And the Oath of Allegiance was twelve Years old , and so pressed at the Leets or Turns ; but did they mean we should ▪ Observe it but as Children , not as Men or Christians ? It is true , the Saxons also had a twelve-Year-old Oath , but against Theft ; and how the Laws of Henry the first did Annul the Oaths of Children was observed , and the fifty ninth Chapter of those Laws forbiddeth any to Plead , or to be Pleaded in Iudicio , till the Age of fifteen .

It was also a Maxim in our Law Books , that Minors could not Essoyn , because they could not Swear ; and that Homage might be done in Nonage , but not Fealty : For although Homage was the more Honourable , done upon the Knee ; yet Fealty was the more Sacred , being ever done by Oath ; and from hence is the usual Phrase in all Lawyers and Historians , to Do Homage , but to Swear Fealty .

Must our Allegiance only , run before our Reason or Discretion ? which yet was our great Fealty : for it differed little from Homage , with the Oath of Fealty to Mean Lords , but in the Salvo ; which I touched before , and must again , being one good help to explain our Allegiance .

I shall acknowledge that Allegiance ought to have been kept by all Subjects , although they never took that Oath ; which it may be , many did not , especially , since the late Oaths of Allegiance and Supremacy ; which have seemed to abate the use , ( I say not the Force ) of the old Leet Oath of Grand Fealty ; Which was perhaps never taken , or much understood by some of those that appear most zealous in crying up Allegiance ; For it is natural to us all , to be most confident in that which we least understand .

They seem to have done much wrong to the King and Crown , ( and to have made so many averse from the very Name of a King , ) who by too much Zeal did strain our English Legiance out beyond all bounds of English Laws , and then they would fly out to Forreign Laws ; as if the Moulds and Sphears of Kingly Power or Subjects Duty , were by nature equal in all Climates , and in every Kingdom .

Yet I know not that we need be much afraid to appeal to the Laws of any Civil State , especially to those of Iudah , which if some had known more , they would have pressed less for our Pattern : But all English Kings had English Bounds by Law ; and so we Swore Allegiance , and no otherwise by Law .

It was a Pang of Zeal or strange Affection , more than Reason or Religion , which did make so many once ( at Cambridge ) Swear to Edward the Senior , To Will what he Willed , &c , Of which the Saxon Chronology ; But I hope it is not fatal to that Place , or to any others in this Kingdom .

For I cannot learn that e're our Law did force or wish us to oblige our selves by Oath , to Think , Speak or Doe as any King would doe , or have us for to doe , if contrary to Law and right Reason .

Our Law dispenseth much with Womens Homage , and of old they were not pressed to it ; for a Woman might not say , I am your Man , nor to a man , ( but to her own Husband ) Sir , I am your Woman , yet she was to Swear Fealty .

So were the Bishops also to Swear Fealty , ( except in Frank almoigne , ) but the Law dispensed with a Bishops ( or Church-mans ) Homage , so that he needed not to say , My Lord , or Liege , I am your Man . The Reason is , because he was ( or should be ) the Man of God , and might not give himself so much away to others , as any other whatsoever .

And the reason of this may reach to all our Fealty , so far as to perswade us to consider what it is we cannot , nor we may not give away to any Man or Angel .

Was it not an hard Covenant tendred by Nahash , that he would protect all those , or own them for his Subjects , that would put out their right Eyes ? and yet this had been more reasonable and Just , than to have required absolute Allegiance , without any Limitation or Salvo at all : For this had been to have bid them pluck out their Souls , or at least to uncase them from that which nature hath made the Cabinet of Souls ( that curious Orient Mother of Pearl , ) Right Reason , which doth make us Men ; that I say nothing of that which makes us Christians or Religious Men.

We sinned if we wholly gave our selves unto a King , without any Limitation or Restriction whatsoever : For by so doing we unman our selves , and give away to a Man what we owe not , what we may not give to any mortal Creature whatsoever .

Let us discuss it then by Law and Reason , what is our Legal Fealty , how Made , how Limited , how Kept , or how Dissolved . Let us inquire what Duty , what Allegiance is commanded by the Laws , and what they did not mean they would not have us give to mortal Man .

Shall we behold the Sun Reflected or Refracted in a Stream of Water ? shall we consider the King as Cloathed in the Dress or habit of some other Lord ? For every Lord ( the meanest and the lowest ) is , or may be to his Vassals , as a little King to his Subjects : Such was the Plea of Lanfranc ( as before , ) at Pinenden ; and so it was adjudged and confirmed by that Parliament , that he should be in his Demesn , as was the King in his .

And the old Laws of Alfred , Ethelstane , Edgar and Canute , with the good Laws of Hen. the first , do as much forbid and punish Treason against Inferiour Lords , as against the King himself ; for to them also is Homage done , and Fealty Sworn by their Vassals , saying , My Liege , I am your Man , and bear you Faith of Life , Member and Terrene honour , saving the Faith I owe to other Lords .

Or thus , My Lord , I will bear you true Faith , and do you true Service , as my Duty to you is , ( so the Statute of Edw. the Second ) that is , according to my Fee . And the Mirrour will tell us , that it was an Abuse for the King himself to require it any otherwise ; for it did not consist in a Point , but had much Latitude , and several Degrees , according to the several Fees .

And if any such Tenant were pressed on more Service or other than his Fee required , or were injured ; he might Implead his Liege in Law : For what his Duty was , neither himself , nor his Liege Lord might determine , but the Law .

For a Villain , who of all Vassals , was most Fettered , ( most forbidden to molest his Lord , ) yet might be Demandant in some Real , or Plaintiff in some Personal Actions , where the Lord might not make plain defence ( as they speak . ) Nay , and Villains also did often bring Actions of Trespass .

And in Cases of others , as of Orphans , where the Villain is Executor in Trust , he may implead his Lord , who can not deny to answear , though he do it with a Salvo , lest such a Suit might make his Villain free , as much as if he had made him an Obligation , or a Deed of some Annuity , or a Lease for Term , or Infeofment with Seisin , or had sued him in Law for what he might have had without a Suit .

For these did Enfranchise the Villain as much as being in a City , or Castle , without claim or Challenge for a Year and a Day , or his Lords giving him ( by the Right Hand ) to the Sheriff in full County Court , shewing him the open Doors and free wayes , and delivering to him a Sword and a Lance , or other Free Arms , which are the wayes of Manumission , in the Laws of King William and Hen. the first , where we also find the Text so much Commented by Glanvil , Bracton , Britton , Fleta , with the Mirror and others .

They all agree in this , that the Bond and Obligation is Mutual , and that the Lords Kiss whispereth as much Respect and Defence , as the Vassals Kneeling doth his Reverence ; Nay , there is in Law so great an Obligation on the Lord , and so great a Charge often , in Guarranty , ( which of old was much larger than now , in Homage Ancestrell ; ) That the Lord would often refuse and delay to take his Tenants Homage ; So that there was a Writ made , commanding him to take it , and by it , to Oblige himself to his Tenant , whom he was to Defend ; and his Trespass on him in Law , had a very great Aggravation ; because the Vassal was to be sub defensione Ligea , as we found the Iews , in the Laws of the Confessor .

Some Kingdoms are in Fee to others , and must do Homage , Swearing Fealty ; So Scotland unto England ; so was also our English King , but not the Crown or State , ( which hath oft in Parliament been adjudged and declared Imperial , Independent ; ) when himself did Homage unto France .

And yet I do not find our English King did ever much Scruple at his waging War with all France , and the French King also ; but did often fight in Person against his Person ; and he might do so by Law , if the King of France did Injure and Oppress him against Law : That I say nothing of the Personal Challenges by Rich. the first , Edw. the third and Rich. the second ; Or of King Iohns being cited or Condemned by France , for Murther in that Kingdom .

This might yet be enlarged , and further cleared , from the good Laws of K. Henry the first , which are so strict for Allegiance and due Fealty to every Lord , that they seem almost to forget our old English Clemency ; and yet they speak enough of a Vassals impleading , &c. his Lord , for which divers Chapters , from the 40th to the end , are very considerable .

And the 55th Chapter limiteth all Homage and Fealty , per honestum & utile , that which is honest and profitable ; and as Honestum there respecteth God and the common Faith , ( Deum & fidem Catholicam , ) so must Utile respect the Kingdom , and the Common good ; it being usual for those times to express the Common Good by such a Phrase of Utile .

So the Laws of St. Edward ( for Foromotes & Heretokes , ) ad Honorem Coronae , & ad Utilitatem Regni ; So King Williams Additions were granted and Confirmed , ad utilitatem Anglorum ; So the Parliament at Merton was to treat , de communi utilitate Regni ; ( which may be considered in the Writs of those times , ) and the great Charters granted , à tout la commune Dengleterre ; ( as Articuli super Chartas ) And the first of Westminster , pur le common profit de st esglise & de Realm ; and the Confirmations of the Charters in Edw. the first , forbidding all Impositions , &c. but by Common assent of all the Realm , & pur le common Profit de ceo ; which must be determined by Commune Assent , and no otherwise ; So Ethelreds Law , Efferatur Concilium quod Populo Utilissimum ; And Canutes , quae ad Reipublicae Utilitatem & Commune commodum , which there may Paraphrase Regalitas , of which before .

And ( however the late Oaths of Allegiance are , ) if we consider the old Oaths , both in the Saxon and first Norman times , we shall find them to respect the Kingdom and its common Good and Profit , as well as the Kings Prerogative or private Profit to the Crown .

By Bracton with others , we are led to the Laws of the Confessor for our great Allegiance ; But in those Laws , the Oath is to defend the Kingdom with the King ; and that by such an Oath we should all be , sicut conjurati Fratres , ad defendendum Regnum , contra Alienigenas , & contra Inimicos , unâ cum Domino Rege , &c.

That it was so also in the Brittish times of K. Arthur , ( whose Parliaments we may assert by more , than that in Caius of Cambridge , ) we find in these very Laws , and that by Vertue of this Oath , King Arthur raised his Subjects , and expelled the Saracens and Enemies a Regno , from the Kingdom .

And the same Laws tell us , that the same Oath was renewed and Confirmed by K. Edgar , whose Laws are severe enough for Treason , but against all Lords as well as the King ; and it is Punished , as Theof . And the Laws of Canute ( confirming those of Edgar ) require Fealty conjoyned with Duty and Virtue ; and again with Common Justice , Iusjurandum datamque fidem Religiosissimè servato , injustitiam pro sua quisque virili Parte , ditionis nostrae finibus omnem arceto , as Lambard translateth the Saxon of those Laws ; and in another place of them , The Leet Oath of Fealty , Iure Iurando fidem det , omni se in posterum aetate , tum furti , tum furti Societate & Conscientia temperaturum .

And to this doth King Edwards Oath of Allegiance ( in Britton ) seem to allude , que ilz nous serrount Feaul & Leaux , & que ilz ne serrount Felons , ne a felons assentaunts ; yet I do not deny , but Theof , in this Oath might include Treason with other Felony , ( as was touched before ) but however , it is as well for the Kingdom or the Common good , as for the Kings Prerogative , or private Honour o● the Crown .

So also the first Norman Laws ( called the Conquerors ) require an Oath of Allegiance ; but for the Publick Peace and common Justice , to the Kingdoms good as much as to the Crown ; for so the words run , fint Fratres conjurati ad Regnum N. contra inimicos defendendum , & Pacem , & dignitatem . N. & Coronae N. & ad Iudicium rectum & Iustitiam , constanter modis omnibus pro posse suo , ( as K. Canutes Laws before , ) sine Dolo , & sine dilatione faciendam .

This is now continued also through our great Charter , and all the Confirmations of K. Edwards and K. Williams Additions , in utilitatem Anglorum , which may be considered as a good Comment on the usual words in Indictments against the Peace , and Crown , and Dignity , which by those Ancient Laws , was to be joyned with the publick common good and Justice of the Kingdom ; So that Allegiance was ad Legem , to the Laws , the Kingdom , and the Kingdoms good or Profit , together with the King .

And in all the Law Books we may read of Treason done and committed against the Kingdom , as against the King ; So in Hengham Parva , cap. 3. If any raise War against the King , or against the Kingdom , ubi quis movet Guerram contra Regem , vel Regnum ; And his Commentator referreth to several Cases in Edward the third , Henry the fourth , with Plowden and others which would be considered .

Nay , there are many old Authors and Masters of Law , that expresly declare it to be as Real Treason to seduce the King , or the Kingdom , or an Army for the Kingdoms Safety , as to Act against the Kings Life .

So in Hengham Magna , cap. 2. Treason is branched thus , de Nece , vel Seditione Personae Domini Regis , vel Regni , vel Exercitus . And the very same Division of Treason is in Glanvil , both in his first Book and second Chap. and the first Chapter of his 14th Book .

To which also may be added Bracton , Lib. 3. cap. 3. de Coronâ ; and Fleta , lib. 1. cap. 21. vel ad seductionem ejus , vel exercitus sui ; and Britton , cap. 22. disheritur de N. Royalme , ou detrahir N Hoste ; of which also Stanfords Pleas of the Crown , lib. 1. cap. 2. and others that Wrote since the Twenty fifth of Edward the third , which may seem to limit or to lessen high Treason , but not to annul Treason by the Common Law .

And in Cases of such Treason , they declare , that although there be no Accuser , but only Suspicion ( sed fama solummodo publica , so Glanvil ; but in Bracton , Fama apud graves & bonos ; and in Fleta , apud bonos & graves infamia ; ) yet must the Party be Attached ▪ vel per Carceris Inclusionem , vel per Plegios idoneos ; so it was in Glanvils time , ( for all but Homicide , ) but in Fleta's , Diffamatus vel Accusatus , attachiabitur per Corpus , & Captus Remanebit , donec se indè Legitimè acquietaverit . That is , ( in him , ) till he have Legally cleared himself from all Seducement of the King , Kingdom , or Kingdoms Army ; Omnemque seductionem Regis , Regni vel sui exercitus , & quicquid sit contra Pacem suam ; which Glanvil expresseth thus , Machinatum fuisse , vel aliquid fecisse in mortem Regis , vel seditionem Regni , vel Exercitus , vel Consensisse , vel Consilium dedisse , vel Authoritatem praestitisse .

In such Cases also they debate who should be Iudge , and for this they all agree in that fundamental Principle of right Reason and Nature , that Parties may never be Iudges in their own Causes ; for which , besides all others , the Mirror is large and clear among all Exceptions to the Iudges Person , ( if he have no Commission , or refuse to shew it as he ought , or be Party , &c. ) of which also Britton in Appeals , cap. 22. fol. 41.

And for this reason Bracton and Fleta with others , agree that in such Causes , neither the King ( who might , so they say , be Iudex & Actor , ) nor the Kings Commissioners should Judge or determine : But Curia & Pares , except only when the Case is not of Life , but finable ; for in such the Kings Commissioners may determine sine Paribus .

But who are these Peers , and what is this Court ? One of Bractons first Maxims ( in his second Chap. ) is , that all obscure , difficult and new Judgments , ought to be suspended , Usque ad magnam Curiam , & ibi per Consilium Curiae terminentur .

Fleta is somewhat clearer , ( in his second Book and second Chap. ) Habet enim Rex curiam suam in Concilio suo , in Parliamentis suis presentibus Prelatis . Com. Baron . Proceribus , & aliis viris Peritis , ubi terminatae sunt Dubitationes Iudiciorum , & Novis injuriis emersis , Nova constituuntur Remedia , & unicuique Iustitia , prout meruit , Retribuetur . Ibidem .

Unicuique ! What , to every Man in all the Kingdom ? or how far , and how high may this extend or reach ? Shall we propound this Doubt to the Antient Parliaments , who were most like to know their Power and Priviledge ?

The Law was clear enough before , but some were pleased not to think it so ; and therefore in the Statutes of Marlbridge , ( as old as Henry the third ) in the first place of all it was agreed and enacted , That all men Living of this Kingdom , as well high as low ( tam Majores quam Minores ) must and ought submit to Judgment , Iustitiam habeant & Recipiant in Curia Domini Regis .

That this Expression may go lower than the Court of Parliament , I can not deny ; nor will others , I suppose , deny but that it may and must be yielded to the highest Court of all .

One of the Clauses of the Kings duty expressed in the Saxon Laws , is to do all things rightly by the Judgment of his great Court , per Iudicium Procerum Regni ; and again , by that great Council to maintain or do Justice and Judgment , Iudicium Rectum Facere & Iustitiam tenere per Concilium Procerum Regni .

All which , and much more in those Laws , must be solemnly Sworn by the King , before the Kingdom and the Clergy , in propria persona inspectis & tactis Sacrosanctis Evangeliis , &c. coram Regno & Sacerdote & Clero , ( This may be considered ) antequam ab Archiepiscopis & Episcopis Regni Coronetur ; Even before he may he Crowned , or should require his Subjects Homage .

Insomuch that when the Subjects have tendered Homage , ( as some Lords did to King Henry the fifth ) before the King had done his Homage , and Sworn his Fealty to the State and Laws ; It hath been observed by Historians , as some kind of Comet , that I say not a Prodigy , in State Politicks .

And besides all the forms of Coronation found in Hoveden , Walsingham , and other Historians , ( secundum antiqua Statuta , as Matthew Paris speaketh , ) it is clear enough in the Records and Rolls of Richard the second ( before others , ) how the King first did take that Solemn Oath , and then the Archbishop went to every side of the Scaffold , relating to the Kingdom how the King was Sworn ; and then he asked them , si ipsi consentire vellent , if they would now give consent to take him for their King and Liege Lord ; and if so , they came and did him Homage .

If they would consent ! What , was it at their Choyce ? and were our English Kings Elective , plain Elective ? sure it would be duely weighed , and I confess some things have made me very much suspect they were Elective .

And the rather also by considering the great Care and Importunity of some Kings , to procure the Crown to be setled by Parliament upon their Heirs ; Which might intimate that indeed it was not their Inheritance at Common Law ; for it was seldom seen , I suppose , that English Men have taken much Pains to obtain an Act of Parliament to settle their Inheritance on their own Heirs , except they were Illegitimate or Aliens .

And upon search , I cannot find the old Oaths of Allegiance did relate to the Kings Heirs or Successors , either in the Saxon or first Norman times , although we find the Oath in old Laws , long before Edw. the second , and in old Lawyers , Bracton , Britton , Fleta , with the Mirror , punctual in the Oath of Allegiance , but not a Syllable of Heirs or Successors that I can find .

Yet in the times of Henry the first and Henry the second there was some special Acts of Parliament for setling the Crown on Maud the Emperess or her Issue , and King Henry's Son was Crowned in his Fathers Reign , and of that time the Salvo in Glanvil , Regi & Haeredibus , which I find not in any other old Lawyer ; and I believe it not usual till the great Quarrels of York and Lancaster , it may be much Later .

But all such Acts ( for tying the Crown to such or such a Family ) do not evince a former Right of Succession , any more than the House of Austria doth prove the Empire not to be Elective , though it now seem as entailed on that Family .

I say not how often it hath been adjudged that Affirmative Statutes do not annul the Common Law ; and that one may Prescribe against a Statute Negative , but in Affirmance of the Common Law , ( for which the Comments on Littletons Burgage ; ) So that if an English King was Elective by the Common Law , the Kingdom might prescribe against late Statutes which might erre much more than they could oblige all future Parliaments , but they might still be free , and most of all in what was due before by Common Law .

Let us discuss it then , and see what Antient Lawyers and Historians do record about our Kings , their limitations by our Laws , their Title by Succession or Election at the Common Law .

If Bracton or if Fleta may be Judges of this Question they will tell us , that in their times our King was Elective ; Non a Regnando dicitur sed a Bene Regendo , & ad hoc Electus est ; And again , ad haec autem Creatus Rex , & Electus , ut Iustitiam faciat Universis ; Not only Created , but Elected , it is where they treat of Iudges and of Iurisdiction .

And of our Saxon Ancestors , the Mirror is very plain that they did Elect or chuse their King from among themselves , Eslierent de eux un Roy à reigner sir eux ; and being Elected , they did so and so Limit him by Oath and Laws .

In this we might appeal to Tacitus of our Ancestors , For theirs , who did both Elect and Bound their Kings and Generals , Reges ex Nobilitate , Duces ex Virtute sumunt ; and of their King he saith , the Power was so bounded , that he could not call it Free , Nec infinita , aut libera Potestas , and that in Conciliis , Their Kings Authority was in perswasion rather than Command , Suadendi potius quam jubendi potestate .

Caesar seemeth to conceive they had no King or fixed Common Governour in time of Peace : but for War , saith he , they Choose out Generals , qui Bello praesint ut vitae necisque habeant Potestatem .

In our Brittish Ancestors he found a King , but by Election of a great Common-Council , by whose consent he observeth that Cassivelane was chosen King and General against his Landing ; Summa Imperii Bellique administrandi , communi Concilio permissa est Cassivellauno ; and again , Nostro adventu permoti Britanni , hunc toti bello imperioque praefecerant .

That the Brittans agreed much with the Gauls in their Customs , I do not deny ; but I know not why this should make the Gauls to be the Elder Brothers , as some teach us , because our Britain is an Island : Yet it may be much disputed , if not proved , that it once was joyned to Gaul , ( or France ) in one Continent , for which we might produce some of the old Poets , and others before Twine and Verstegan .

However , it is clear enough from Caesar and Pliny , that the Gauls were much moulded by the Brittish Druids , although they seemed more Polite in Iuvenal's time ; and afterwards being more Frank , they afforded a Christian Queen to Ethelbert , and the Model of a great School to Sigesbert ; which yet must not wrong Alcuinus , who from hence moulded the University of Paris , if we may Believe all that write of Charlemaign .

And if we add Strabo to those cited before , we shall find they Chose both Generals and all great Magistrates .

When they had a King , the Crown passed by Election , and was so limited , that Ambiotrix ( one of their Kings ) acknowledged , Ut non minus in se Iuris Multitudo , quàm ipse in Multitudinem ; So in Caesar.

Their Common-Council much consisted of Equites ( and such perhaps our Knights of Shires ; Electi de plebe , ) and Druydes , their Clergy who did over-rule them all , by their Banns , and Sacred Oak Misleto , as if it had grown in Dodona's Grove .

Their grand Corporation was dissolved by Roman Edicts , in Gaul by Claudius , ( as Seneca , Suetonius ; ) but in Rome by Tiberius , ( if not Augustus ) in Pliny ; but Vopiscus keepeth a Druydess to presage the Empire to Dioclesian , when he had killed the Boar ; and Ammianus may afford them in Rome , in Iulian or Constantius .

But in Scotland or Ireland they remained longer , if we may believe their Annals of Columbanus , and of William the Irish Abbot : But in Dioclesian's time , Amphibalus the famous Brittan , fled from Rome to his Friend St. Alban , ( who dyed for him in his Cloaths , it is said ; but we find him Condemned by Law , and styled Lord of Verulam , Prince of Knights , and Steward of Brittain , in his Shrine , and Iacob de Voragine . ) ' Ere long we find him made a Bishop in the Holy Isle , and there he did Succeed the Brittish Druyds , and his Scholars were enow with their Blood and Carkasses to make the name of Litchfield .

But the turning of Druyds into our Bishops , ( in Lucius's time , ) is no more certain , I think , than that those were the Flamins or Arch Flamins , of whom we hear so much of late ; but of old few or none relate it , but only Monmouth .

The Name of Flamin came to Brittain from the Grecians or the Romans , ( who had Druyds from the Brittans , ) where they were most Sacred Priests ; at first but three , but when every God and Godded Man or Daemon had his Flamin , they became extreamly innumerable .

Yet the first three still kept their Distance , Place and Seniority , from whence the Phrase of Arch-Flamin , which yet I dare not assert to have been in Brittain , or to be so much as known in the time of Lucius ; or the name of Archbishop . But of this Sir Henry Spelman , of Lucius's Epistles in Gratian , and Mr. Patrick Young on Clements Epistle to the Corinthians .

But Fenestella with his Names of Bishop , Arch-Bishop , Cardinal , Patriarch , Metropolitan , &c. is now come out with another Title of a later Age , than he that lived in Tiberius .

But to return to our Brittish Druyds moulding the State , and yet they would not speak of State but in or by a Common-Council , ( as was touched before in the Militia , ) and among these the same Caesar will tell us , that there was a chief or President , but chosen by Deserts , and not by a blind way of Succession ; Si sint Pares plures suffragio adlegitur ; nonnunquam etiam armis de principatu contendunt .

Nor is it probable the Brittans should be great Patrons of Monarchical Succession , which could hardly well consist with their Gavelkind , which is not only in Kent , but in divers other Places of England and in Wales ; from the Brittans , as we may learn from Parliament , in 27 Hen. 8. and in K. Edwards Statute of Wales , with Littletons Parceners : And his Commentator makes it one mark of the ancient Brittans , and from them also to Ireland : and from the Brittish Gavelkind , do all the Children yet among us part their Fathers Arms , of which also the great Judge on Littletons Villenage .

But on the Parceners , he deriveth the Crowns descent to the Eldest , from the Trojans to the Brittans , so indeed do many others with Monmouth and Basingstock .

Yet our Best Herald the Learned Cambden , will deride the Story of the Trojans coming hither , but his many Arguments to prove the first Inhabitants to be a Kin to the Gauls , do no more convince me that the Trojans might not come hither afterwards , than that the Normans did not come , because the Saxons were before them .

I repeat nothing from Gyraldus Cambrensis , Matthew Paris , Hoveden , Huntingdon , or others , who derided Monmouth , till they were convinced by some Brittish Writers which themselves found ; besides all the Greek and Latin Authors cited by Virunnius , Leland , Sir John Price , and divers others , that I say nothing of the Scottish Chronicles , or of the Learned man that shewed King Henry the first the Descent of divers Nations of Europe from the Trojans , in Huntingdon and Hoveden .

But it may be considered what this State and Parliament hath oft owned of Brute , and the Trojan Story , not only in the grand Moot of the Dependance of Scotland on England , ever since King Brute ; which , beside all Records in the Exchequer , is at large in Walsinghams Edward the first , and the Survey of Normandy , as also in the Laws of the Confessor , cap. 35.

To which I might add the Trojan Reliques , Statues , Tablets and Pictures , in all the Brittish , Danish , Saxon , English Wars , found here in Cornwall , Wales , and other Parts , besides our Troy Novant , or new Troy , the old Trojan Roman name of this Famous City of the Troinovantes , ( in the Roman Writers Trinobantes ) now London , since the time of Lud's building a Gate , and changing this Cities Name .

But for leaving out the Name of Troy , some were so much offended , that it came to a great Contest and Quarrel , couched in Verse ( from others ) by the old Gildas , and translated by the Famous Nennius of Bangor , escaping that bloody Massacre .

Who hath also left us an old History , ( yet to be seen in MS. ) collected , as himself saith , from the Brittish and Scottish Records , and from the old Roman Annals , ( which were then found ) relating the Pedigree of Brute or Britto , ( some will have him Brotos , and some Brutus , ) from Aeneas to Rome , and his bringing some Trojan Reliques hither by the way of Gaul , where ( he also saith ) he built the City of Turons or Tours , much as Monmouth and others have the Story , though I could never find it in Homer or any of the Ancients , by them cited for Turons .

Yet I find the same Nennius confessing that the Brittish Annals had another descent of their Brute or Britto , from Japhet ( obtaining Europe for his Portion with the Brittish Isles , of which Noahs Will in Eusebius , or other old Fragments ; ) came alone , from whence the Almans and Francks , besides our Britto , ( Father to the Brittains , ) whose Genealogy through twenty Descents to Noah and Adam he saith he had from the Tradition of those who lived here in Primis Britanniae Temporibus .

So that if we may not believe Taliessin , ( the British Bard ) of Trojans coming hither with their Brute , yet we may peruse his Scholar , or the Merlin that foretold the Name of Brute should come again upon this Island ; whether in the Scottish Union , or in the Welsh returning to their Lost Dominions , I dispute not ; nor how this Island came so like to Somothrace , ( so near a Kin to Troy ) in Rites of Worship , or in other Customs , as of old some did observe , especially in those concerning Ceres or Proserpina , so famous here , that in the old Argonauts the Brittish Isles are stiled the Court or Palace of Ceres ; and yet this might be for other Reasons .

But although I cannot deny some Trojan customs among us , yet I know not why I should grant that Trojan Succession to the Crown , which so many do assert , when as themselves do yield the same Trojans to be Brittans , and those Brittans of whom we spake before .

And besides the Brittish Gavelkinde , and all before , themselves do also relate their own Brute , parting his Kingdom among his three Sons , and again the Crown parted between the two Sons of Madan , two of Gorbodio , two of Molmutius , two of Lud , so near a Kin to him that Caesar found Elected King by Common-Council .

And I must believe those who assert the Trojan Crown to go by Succession : yet I know not why I may not also believe so many good or better Writers of the Trojan Common-Council or Parliament , and their Power in Peace and War ▪ with all things else that might concern the King or Kingdom ; which great Council did consist of Princes or Nobles , and Elders of the People .

Of which Trojan Parliament we read in Apuleius , Socrates , Daemon , and in Homer , Virgil , Dictys , and most ancient Dares , who lived also in our Britain , ( if good Bale deceive us not , ) which yet is not so certain as that he was Translated or Paraphrased in Latin Verse , by Ioseph of Exon , or Iscan our Countrey-Man , as many of his Verses speak ; although that Elegant Poem be ascribed to Cornelius Nepos , as by him Dedicated to Salust , in the times of the great Commerce between Rome and Britain , which produced so many famous Brittish Romans , beside Constantine , Helen , and the modest Claudia , of whom St. Paul speaketh , and Martial ( in several places ) maketh her a British Woman .

I will not insist upon their Election of Emperors or Generals by a kind of Lot in Dictys , nor will I deny but the Trojans were severe enough to all Traitors , whose dead Bodies also were denyed Burial , if we may believe all from the Illiads ; but the Odysses may also afford us the very same Punishment for Tyrants , whom they hated as much as the Grecians .

Nor will the Patrons of Succession or Prerogative find more encouragement among the Grecians than among the Trojans ; though I cannot deny but they do rightly observe many Grecian Customs among the Britains ; nor will I deny to our Ancestors , both Greek Philosophers and Greek Schools , besides Bladud's at Stamford and other Places .

I could easily believe these Islands to be known to the Grecians long before the Romans , of whom Lucretius is the first ( that I yet know ) speaking of Britain ; but it was described by Polibius , ( though our great Herald seem to forget it , ) who might learn it from the Carthaginians trading hither , and by Eratosthenes , Dicaearcus , Pithaeas , and Artemidorus , if I be not deceived from Strabo , that I say nothing of the old Argonauts ( ascribed to Orpheus , ) naming Ireland and describing Britain , or of the Book of the World , ( in Aristotles Works ) where Albion and Ferne are Brittish Isles , mentioned also in Dyonisius ; and very famous for their Mines of Tin or Lead , whence the name of Cassiterides , of which Herodotus , and others of the Ancients .

What was the Grecian Genius towards their Kings , doth not only appear in their Supercilious Ephori , Eye-brows , or the Left eye of Greece , but in the Right Eye , or Athens , of which much might be spoken from all the Greek Historians , besides their Laws or Politicks of Plato and his Schollars , long before the Attick Laws Collected by Petitus , that I say nothing of Aristophanes or any of their Poets .

But how much our Ancestors owed to the Grecians , I do not find expressed by any ; most of our Plays , much of our Works , and somewhat of our Laws seemeth to be Grecian .

The Genius of a State is seen in Plays , some think , rather than in Work ; they are Passions and as Lovers Pulses , which do shew the Soul much quicker than do Words or Actions ; and the Greek Scenes were Passions ( or Sufferings ) of Princes rather than their Actions ; and a Tyrants blood was thought the Richest and fattest Sacrifice to please the People and appease their Gods ; but Interludes must be Corrected much , and then they may both Moralize and Methodize the best Historians , and may be Divertisements of Use as much as Pleasure to a State , which else was apt to grow Morose or Melancholick , if it were too Sedentary .

The Grecian Cards or Chess ( at the Siege of Troy , ) may shew their Shuffling , Cutting and Triumphing over Kings , and Checking them by small Perins , and in the East Scheck-maet doth signifie the King is Dead , or the Kings Death .

But when shall we come again to the Mathematical ( or Philosophers ) Game , which was also used here , though now we have lost old Plato's Analyticks , of which his Theon long before Vieta ? when shall our Kittel-Pins return again into the Grecian Skyttals of the Muses , whence they might degenerate ?

When shall our Cards return again to Charts , and teach our Children Prospects and Geography , with the true Site of Countreys , Cities , Persons , and the famous men of old , who conquered ( in their Plays , ) by Laws of History and exact Chronology , and not by Fancy only as of late .

When shall our Grecian Dice be taught to teach our Children Squares and Cubes , with all the Mathematicks , as they might much better and easier than our Papers and our Tedions Figures ; for I need not say how much the six sides of a Dye would help for the Root of all perfect Cubes , and half six for all Surds in that and higher Powers ; beside so many other uses of the Dye in all Mathematicks and Architecture .

In which also we owe to the Grecians for our Attick and Ionick , and our other Moods ; and so in Musick also , that I speak not of Perspective and almost all the Mechanicks of Wheels , Beams and Leavers , with perpetua or continual Screws ; or of the Physick and Apothecary Terms , more Grecian than Italian .

And beside , divers of our Law-Terms , Endite , Ideot , Chyrographer , Protonotar , &c. I could almost believe the Grecians were the Patrons of our Tryal by Twelve , which was not first brought in by the Normans or by the Saxons , although we found it with them in Ethelred , or Edward the Senior , and before them in Alfred , as appeareth by the Causes why he hanged so many Judges in the Mirror .

From the twelve signs of the Zodiack , it might come to the Chaldeans , thence ( or from the Iews ) to the Egyptians ; for in Egypt was the old Iury of Twelve Gods , so often in Homer , Herodotus , Diodorus ; and from Egypt to Greece , with the Twelve Labours of Hercules , Egyptian or Oriental Hircol , Hirtot , Hirsut , and thence the Fable of his Lyons Skin .

But in Greece this Number was both Famous and Sacred , as in our Iuries : and of this , Plato in Timaeus , and in Phaedrus , in his Laws , and in Phaedo and Critias , which would almost perswade me that he had seen Moses or the Flood , or the Twelve old Heroes , or had read in Moses Song of the Earth being parted , according to the Number of the Sons of Israel , or ( as some would have it ) of the Angels or the Sons of God .

And for the Grecian Trials by Twelve , I need cite no more than the known Histories of Orestes , and of Mars , tryed for Murther by a Iury of Twelve , ( and quitted only by the equality of Votes , ) in that Famous Place which from him was called Areopagus or Mars Hill , of which St. Paul ( and Dyonisius ) and the Altar to the strange God is described in Pausanias , to be compared with Laertius Epimenides ; ( and divers others ) that I say nothing of the 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 , which from Areopagus might come hither with the Tryal by Twelve , and be Mothers to the Name rather than Person of the famous Brittish Samothes , as Areopagus seemeth to have been to much if not to most of our Law Pleadings and Customs in Criminals .

Yet it may be possible that this Number might be as Sacred among the Trojans , although I remember little of it till Aeneas's coming into Italy ; and then we hear of twelve Procers , twelve Vulturs , twelve Lictors , twelve Hours , and at length twelve Months , and other things , for which Dionysius , the Saturnals , the Genials , and Tiraquel , may be considered , with that of old Ethelward , in Edgar , Argivae Hebdomadas gentis posuere Magistri , septimanas quas voce Latini .

But the Romans allso had many , if not all their Dozens from the Grecians , which were known here long before Ethelbert did settle his Dooms Romano more ; and we often find the number of Twelve in the old Histories of Britain and Gaul , for their Twelve Peers are much older than some may think , that will have them onely to be French .

Nor would it be impossible , I do think , to shew some other of our Law Customs borrowed from the Grecians ; yet I do not know that our old Greek Lade , was so called from Greek Law , ( as divers would perswade us ) or from Greek Leod , or from Greek Language , which yet appeareth in the Welsh ; but I know not that it was spoken here or in Gaul , but near Marseils , a Greek Colony , not much younger than the elder Cyrus .

But it may be that the Druyds had their Learning and their Letters ( though in Sacris they did write but little ) from the Grecians , or Phenicians rather , who in this did teach the Grecians , as both Dictys and the Crowd of Cadmus .

I could also believe their Characters to be very like those of Canaan , ( as Scaliger on Eusebius , and others , ) but I cannot yield them to be Hebrew , though so many Learned men affirm it : but for this see Fullers Miscellanies , and Buxtorfs Dissertations , with the Punick Columns of Ioshuah and Adorams Tomb in Spain , Villalpand , Crinessius , old Hebrew in Larius , Mr. Selden de Dis Syris , and de Iure Gentium , that I say nothing of Tuscans Antiquities .

Yet , if any thing , I could wish the Samaritan Pentateuch , where the true Ancient Hebrew , ( as so many , before Marinus , ) it should be in Terahs Age , at his Death , which would more settle Chronology , than else I find it possible , he being there sixty Years younger when he Dyed than our Bibles make him ; so that Abraham might be born at his Seventy , in which the Iesuit also agreeth unto Scaliger .

I cannot believe the Story of Ulysses Navigation hither , or that Hannibal did Conquer Britain , although it be recorded in a Iewish Writer of as much note as Gorionides ; but the mistake is of Bretany , for the Brettian , Brutian or Brescian Tract in Italy ; and such a slip is also found in some Copies of Polibius Atheneus , and the Fragments of Olympiodorus .

But of Phenician Traffick hereabout , there are many Proofs and Reliques , beside the Famous Story of the Punick Pilot , who was commended and Rewarded by the State of Carthage , for sinking his Ship and Fraught rather than he would be forced by the Romans to discover the Punick Traffick for Lead or Tin , found about the British Islands , therefore called Cassieterides .

Of which so many Greek Authors before Strabo or Pliny , who relate the Carthaginian and Marsilian Traffick for those Oars . And Matthew Paris telleth us , that 1241. there was no Tin ( that he had heard ) in all the World , but in Cornwall only : And then it came to be found in some parts of Almain .

The Learned Author of the late Peleg ( among divers other Brittish words ) hath found a new Etymology for the Name of Britain ; which ( notwithstanding Brith , for Colour or Painting , and Bretas , in some Greek Poets , for a Picture or a Painted Brat ) he would have to be called by the Phaenicians , Berat Anac , or the Field of Tin and Lead .

To which I may add the Northern Sea , called of old the Phronean Ocean , or the Sea of Saturn , whom they feigned to lye asleep in the Bottom of that Sea , bound by Iupiter in a Golden Pumice , of which Plutarch , Eusebius , Ptolomy , and divers others ; and of this , the Author of the Veyl , or Mask of Heaven .

Of which I must speak but little , only this for a Clavis : The Scene is the little World , or Isle of Brittain ; Thule , some appendant to that Crown , or Scotland , whose troubles of 1639. are shadowed in the night work , called Scotos , ( or Darkness ) Saturn , the Scottish Genius , and Mercury the Clergy , but in special the late Arch-Bishop of Canterbury ; Iupiter ( the Son of Saturn ) or a great Scottish Lord , lately on the Scene , that was first sent to reconcile Saturn , but he turned Retrograde . Mars the Genius of War , and in special , the great General against Saturn , or the Lord Lieutenant of Ireland : Venus seemeth to be Queen Mother of France , then alive in England : Phoebus and Phoebe , need no gloss . Imperii fata , plain enough to those that know that Dialect .

But Phoebe might have there seen ( before this Parliament , ) that Peace had been her Work , and should have been her Happiness : nor is it yet too late , or wholly past . Habent etiam sua fata Reginae ; and there is a silent Patience which may Conquer more than all the World can get by Force .

Who will unmask the Chymical Part ? which the Poets also Veiled in their Fables of Saturn , bound by Iupiter in Golden Pumice ; and it may be possible that future Ages may be brought to see or know the Treasures in our Chronian Ocean , and the meaning of that Riddle . In the mean time , he that can improve the Sympathy of Mars and Venus , or remove the Antipathy of Saturn and Mercury , or can bind Saturn by Iupiter , and by the Mediation of Phoebe , can reconcile all to Phoebus , or can live on Herbs , may have little need I hope to flatter any .

But to return to our British Ancestors . How Cordiel and Guintoline were Created populi Iussu , Archigal , Ennianus or others Deposed , is observed by divers : I shall only add , that Proceres and Magnates here are rendred Estates , People or Commons in Grafton and Chaucer , or the old Fructus , by Iulian of St. Albans .

Molmutius first did wear a Crown of Gold ( they say : ) he did deserve it , for to him we owe divers of our Common Law Principles ; nay , and that , for more than is found in Monmouth , as I touched before .

And upon him the Patrons of Succession build a fixed Monarchy , which was not such it seems before ; nor since , if we may believe those we can hardly disprove , that from this time begin the petty Princes , & plurimis Regulis supremam Mandandi & Iudicandi Authoritatem .

And themselves divide the Crown between his two Sons , Brennus the British Thunderbolt to Rome , ( and some do carry him as Lightning to Delphos , ) while his Brother Belin did return and dye in peace ; and first of British Kings was burnt to Ashes , yet he lived here in Bilingsgate and Key , besides his famous Ways or Streets , his own and Fathers Laws , ( which with the Mertian came to us through Alfred . ) But we need not go to his Daughter Cambra for the first Affinity between the Brittans and Sicambrian Francks , or Gaulish Germans .

Come we now to Cesar's time , Lud is alive in Ludgate , London , ( as before , ) he did amend the Laws , but by a Common-Council : And such Council did reject his Sons , and Chose Cassivelane ( as Caesar doth agree with British Authors . ) He did summon one ( that slew his Kinsman ) to appear and submit himself to Judgment , Sententiam quam proceres Dictarent subire .

But the famous Androgeus protected him in London ( being then the Governour , ) pleading the Custom and priviledge of that City , which had also then a Court to hear and determine , all the Pleas of Citizens , or Quicquid aliquis in Homine suos clamaret , and that also by Ancient Prescription , ex Veterum traditione .

Which from Monmouth , Virrunnius Ponticus , and others may be compared with the Laws of the Confessor , for Troinovant or London , and its weekly Hustings , and Ardua Compota , and Ambigua placita Coronae , and for the Courts of the whole Kingdom there , whence it is called Caput Regni & Legum .

Which may also be compared with that of the Mirror , for Parliaments to be in London by ancient Laws , which is here expressed , Iuxta veteres Consuetudines bonorum Patrum & Predecessorum , & omnium Principum & Procerum , & Sapientum seniorum Regni , very full and clear , Parliaments of all Estates .

That which is added of those Courts , to sit and hold wherever the King was , is British also as well as Saxon. So the Laws of Howel , Dha , the Good , ( in the Chronicles of Wales , but larger in Sir Henry Spelman , ) Ubicunque Sacerdos , & Destein , & Iudex , ibi Dignitas Curiae & Aula Regia , licet Rex absens sit : and this is one Reason why the King was never Nonsuit ; because he was supposed present in all Courts : and yet his Atturneys Ulterius non vult , had the effect of a Nonsuit .

But for London and its Antiquity before Rome , Stephanides ( a Monk as old as K. Henry the first , now in Print , ) may be compared with Tacitus , Ammianus Marcelinus , nay , with Caesar also for the Trinobantes , although some think he never saw this City . But the Charters of K. William and Hen. the first are in Print ; so also of Richard the first , and K. Iohn , in Hoveden and others , which yet must not perswade us that Sheriffs were then first Created here .

For Counts or Viscounts are as old as Counties : and the Brittish Authors speak of Dukes of Troynovant , ( such was Androgeus , ) and pro Consulibus vice-comites , in Fitz-Stephen , and Willielm . de Einford vice-comes de London , & Ioannes Subvicecomes , in the Book of Ramsey , Wallbrook Case in Hen. the first ; that I may say nothing of William the Chamberlain de Londonia , of whom before in Hen. 1. which may be premised to the Famous Quo Warranto , brought in Edward the Second .

But to return to our British Kings , I cannot deny but some Authors do Record the Crown ( as by Act of Parliament , ) settled on the Heirs of Cassivelane ; but themselves also can shew us the very next King brought in by Election , ( not from Cassivelane , ) and that both of Lords and Commons too , if we may believe Chaucer , or the old Fructus Temporum .

This Theomantius ( many of their names are Greek , ) was Duke of Cornwall , when he was Elected King ; He doth yet live in a Famous Son , great Arviragus , ( whom the Roman Poet , and so many others praise , ) he did amend the Laws , but by consent of Parliament ; for all agree that a Senate was Elected ( or Dilected as they speak , ) in his time ; not then first Created , but it might be renewed after the Romans had so much interrupted it , of which before from Tacitus ; so far am I still from believing our first Parliament did come from the Roman Senate .

It is a known History , how that King Divorcing himself from his Scottish Queen , and Marrying a Daughter of Claudius Caesar , ( at Claudio Cestre , ) was censured by his Parliament or Proceres , so that he was fain to exhibit his Answer in Writing , which is still left us in Fragments in divers places .

Amongst other passages , he said , he knew not but it might be lawful for him to have more Wives than one ; Eo quod Leges Britannorum , illuc usque id nunquam prohibuissent , because the Brittish Laws had not yet forbidden it .

I must not here dispute what moved Lucius to desire and send for the Roman Laws , nay , and that for the State also . Nor can I yet Subscribe to them that think the Britains to be wholly Governed by Roman Laws , from Claudius to Attila's time .

But could the British King send out for Forreign Laws , or call them in without consent of Parliament ? it might not be , and Eleutherius's Answer is in Print , ( among the Confessors Laws and every where , ) ad Petitionem Regis & procerum Regni Britanniae . Petistis à nobis Leges Romanes & Caesaris ; his answer was , You have the Scriptures , and from them you shall do well to frame your Laws , but by your Parliament , per Consilium Regni vestri .

They which begin our British Christianity from Eleutherius , seem not to consider his Epistle , granting that the Britans were already Christians , and had both the Old and New Testament : Susceptis nuper Mis. D. in Regno Britanniae , Legem & Fidem Christi , habetis penes vos in Regno utramque Paginam , &c. They were Christians long before .

Tempore summo Tiberii Caesaris , as Gildas Badonicus ; and Albanius telleth how Philip the Apostle sent hither Ioseph of Arimathea out of Gaul , see Baronius , EMS . Historia in Vaticano , & Melchin , cited by Bale , Capgrave of Arviragus , and Malmsbury of the Famous Glassenbury , which in old Charter by Parliament is said to be Founded by the Lords Disciples , and is therefore Styled , Fons & Origo Religionis ; as Westsex is Caput Regni & Legum , in the Laws of Henry the first , as London in St. Edwards .

Some have also brought St. Paul in Britain ; so Venantius Fortunatus ( Anno 570. ) from The●doret perhaps , who yet nameth not St. Paul , but the Leather Cutter , and the Publicans and Fishermen , which may be St. Peter , if we may believe the Greek Author cited by Mr. Patrick Young on Clemens , or Sophronius and Nicephorus , as Dorotheus Tyrius of Zelotes : That I say nothing of the British Bard , who from the Stars did tell the Birth of our Saviour , in so many older than Bale .

But again to the Brittish Parliaments , for so we read in the Laws of King Alfred , ( out of British , Trojan , Grecian , &c. ) that in the very first times of Christian Religion in this Island , Laws were made by a Common-Council of Bishops and other Wise Men ; with that of Bede , Servabant Reges sacerdotes privati , & Optimates suum quique Ordinem .

After the Death of Lucius , the Britains could not soon agree about the Choice of another King ; ( 't is every where , ) 'ere long they chose Asclepiodat the Duke of Cornwall , by consent of Commons also ; Communi assensu & annuente Populo : Troublesome he was to all the Romans , but especially to Gallus , who hath left his Name in Walbrook , as the Gauls ( some think ) in Wales ; but for this Polydor Virgil , and the Confessors Acts , with the Laws of King Ina , may be compared with Monmouth , Virunnius , Basingstoke , Florilegus , Gyraldus , and some passages of Bede .

Coel e're long appeareth on the Scene , but yet against Succession ; and he cannot dye so long as Helen liveth , Mother to the Christian Emperor , but Daughter to our Brittish Coel , who was also Father unto Colchester .

We are come to times of more certainty , when that deadly wound ( of one of the Heads ) had made the Roman Empire gasp , as if it would Expire and breathe no more ; it had little list or leisure to command or Counsel any of the Toes , or other Members at a Distance .

In this point of time the Britains Rose ( with other Nations ) and did soon recover most of that the Romans held by force ; their Laws and Customs now were free , 't is yielded us by all : but they could hardly turn and view their Liberty , before they came to be new Slaves to the Picts and Scots , ancient Appendants to the Brittish Crown in Fee .

The Roman Consul then in Gaul , could not regard the Brittish Sighs and Tears , which himself knew to be as just as pitiful ; for had the Romans not so gleaned Britain of its Glory , ( for their Conquest of other Nations , ) they had never asked help it seems against the Scots .

From the Romans they had first recourse to their Neighbour Gauls , or to their Countrey-men in Gaul , for such they were in that which to this day is called Brittany .

Upon what terms they had help from them I dispute not ; their King had as great a Name as the great Constantine , but how himself or his Sons like the Brittish Reins , we may guess in part from what we read in Gildas Tears for his poor Countrey ; where he complaineth that Kings were Elected and Anointed for nothing of God or of Good in them , but only for their Force , &c.

This is also found in another Author ( besides Gildas ) as old as King Stephen or Henry the Second , which may the more perswade us that Monmouth had good Authority for what he Writes of those times , for he also hath Gildas's words , with very little variation .

By which we see the Law , or at least the Custom of those times , both for Electing , Anointing Kings among our British Ancestors .

Two of those Kings may be Constantine and Constans , who are said to be Slain by some of their Guard or Attendants , yet so as divers intimate it came from a farther and an higher Hand .

Constans also came up to the Crown by a Faction rather than a free Choice , as all relate ; who ascribe it to the Duke of Cornwall , not without great Contests of divers Lords , and with little consent of Commons , vix Annuente Populo , as we may read in divers Authors , who are also plain enough to make us know , that he was pulled down by the same Hands that set him up .

Vortiger came next , but on Election , it is agreed by all ; and that there were two Royal Princes ( Sons to the late , and Brothers to the last King , ) who must wait for the Crown with much Patience .

How he called in the Saxons by consent of Parliament , I shewed before in the Militia , and I might confirm it from divers others ; who do also Record , that the King told the Saxons that he durst not without the Consent of his Proceres , assign them any Land , or City , or Castle ; for that it was against the Laws of his Kingdom , & prohibitus sum , quod Proceres Regni dissuaderent , &c.

Yet it may seem the Lords agreed to their setling in Thanet afterwards , but the Commons Dissented so , that they resolved to drive them out again , and that in Common-Council or Parliament : Concilium fecerunt cum Majoribus suis , ut pacem disrumperent ; & dixerunt , Recedite à nobis , &c. My Author is old Nennius of Bangor .

He hath clear passages for Parliaments in that time , and for their Power also : As for Incest with his own Daughter , Vortiger was first Corrected , ( perhaps with the Iewish Discipline , which was here also till the time of Henry the Second ) and St. Germane the Arch-Prelate , came with the whole Convocation-House ( Cum omni Clero Britanniae ) Corripere Eum.

Nennius saith , that in a great Moot of Clergy and Laity , he was so roughly handled , that he rose up in a great Rage and Fled , or at least sought how to Flye , but he was Banned ; Maledictus est , & damnatus a beato Germano .

Afterwards Vortimer was chosen King , ( 't is every where ) but after divers Victories he Dyed , Poysoned ( as some thought ) by Vortiger .

He now Combineth with the Saxons , and by their Power entreth the Scene again , but with little Consent of the Britains ; and although he Acted a while , yet he was Hissed off , being odious to all , till at length his Heart brake . Nennius addeth , that some said the Earth opened for him ; and St. Germane Writeth , that his whole Family was Burnt from Heaven , which was much ascribed to the Clergies Curse or Excommunication .

Which was in use among the Britains , and that also upon their Princes , of which we have many examples ; as of Teuder , and Clotri , for Homicide and Perjury , and Hovel , Glevissicg , and Brochwell did hardly escape by a great Fine & Iudicium Suffere non potuit , of which Sir Henry Spelman in his Synods of Landaf .

It was then by much more heavy than of late : Caesar observeth it among the Druids , and in him it is Poena Gravissima ; adding also , that such Persons were Abhorred by all as some Loathsome Disease , and that they might have no Honour or Right of Law , Neque iis petentibus Ius redditur .

And among St. Patricks Canons we find the Excommunicate excluded , à Communione , & Mensa , & Missa , & Pace ; their Ceremonies in this seem a-kin to the Iewish Cherem , nay , to their Shammatha , ( or St. Pauls Maranatha , ) and it so continued among the Saxons also , as we may see in the Laws of Canute , making it Capital to protect or harbour any such : But in the Confessors Acts , when an Excommunicate fled to the Bishop for Absolution , Eundo & redeundo Pacem habeat ; else it seems they were as Out-Laws , who might then be Killed by any that met them , as the same Laws of Woolfshead in another Chapter .

Which may help us to Interpret those that speak of the Iews being Excommunicate ; nay , and that also by Seculars in England , of which in Matthew Paris and his Additaments ; but his Glossar rightly expresseth it by the University Phrase of Discommoning Townsmen , which of old was much worse it seems than now .

After Vortiger , Aurelius , Ambrose , à Convenientibus Britannis , & Convocato Regni Clero in Regem erectus est : He might also be Inserted into Gildas , for he dyed by Poyson , if good Authors deceive us not .

At his Death a Comet like a Dragon , and the Bards apply it to his Brother , thence called Uther-Pendragon ; Florilegus addeth , that he made two Dragons of Gold , Offering one , and carrying the other still before him , whence the Dragon in our English Standard , although some have asserted much of him they call St. George .

That which Westmonster or Polydore expresseth by Praecepit proceribus Regni Convenire ; Monmouth thus , ( in Aurelius ) Iussit Clerum ac Populum submonere , ad Aedictum ergo illius venerunt Pontifices & Abbates , & ex uncquoque Ordine qui ei Subditi ; and again of Uther , Convocato Regni Clero , annuentibusque cunctis sublimatus est in Regem ; and again , Communi Populorum Concilio .

This Uther-Pendragon is vouched and asserted in the famous Contest of Little Britains Subjection to Turon , ( may it also allude to the Story of Brute , ) of which Gratians Decrees and Matthew Paris , ad An. 1199.

Uther being Dead , Convenerunt Pontifices cum Clero Regni & Populo , a Parliament ( agreed by all ) to Bury him Regio More , in the Gyants Dance or Stonehenge , which himself had gotten by Merlins help out of Ireland , fixing it so near to Salisbury for a Monument of that Parliament , which was thereabout Destroyed by the Saxons .

A Parliament I call it , so I may : In Nennius they are Seniores Vortigirini Regis , but in Monmouth ( and those that follow him , ) they are Principes & Consules , ( that is , Comites , ) & Barones & Cives , called by the Kings Command , Edict , or Writ of Summons .

For Arthurs Parliaments , it would be much Superfluous to produce more proof than what already is in Sir Iohn Price , Cajus , Leland , or others that assert his History ; this I shall only add , that in this of all we may Credit Monmouth , who is so punctual in nothing as in vouching each County and City that made up his Parliaments ; Ex Diversis Provinciis , proceres Brittonum Duces ; and among others , Dux Doroberine Consules , both of Counties and Cityes , Boso Ridocensis , id est , Oxonefordiae , Lot Consul Londonesiae , &c.

And among Forreign Princes , he Nameth the Kings of Ireland , Island , Godland , Orcades , Norway , Denmark and others , besides the twelve Peers of Gaul , ( of whom also in divers other places , that I speak not of the twelve Reguli , which Brute found in Gaul ; ) nor was there a Prince of Note ( saith he ) citra Hispaniam , who did not appear at his Summons : which may be compared with that of K. Arthur , among the Laws of the Confessor , and in Horn , as Authentick as Neubrigensis .

Come we to the Saxons , what I cited before from the Mirror , Tacitus , Caesar or others , may be fully asserted from their Histories ; I shall not insist upon Offa's Election , although it be clear enough from his own Words ; ad Libertatis vestrae Tuitionem , non meis meritis , sed sola Liberalitate vestra unanimiter me convocastis : and the Lives now Printed with Matthew Paris , ( and his Henry the third ) mention divers , if not all the Counties which made up K. Offa's Parliaments . Nor will I spend time in Cuthred , Beonerd or others , Deposed by Parliament , because the Monarchy was not yet so fully settled .

But in the Confessors Acts we find K. Ina Elected ( though by means of an Angel , ) and the first Saxon Monarch ; of his Laws , and Match with his Gaulish , Walish , Cambrian Queen before , as also of his clear and full Parliaments in the Militia .

E're long we find a Parliament at Calcuth ; Conventus Pananglicus , ad quem convenerunt omnes Principes tam Ecclesiastici , quam seculares : wherein , by the King , Arch-Bishop , Bishops , Abbots , Dukes , Senators , & Populo Terrae , ( Lords and Commons , ) It was Decreed and Enacted , That Kings should be Elected by the Parliament ; à Sacerdotibus & Senioribus Populi Eligantur ; and that being so Chosen , they should have prudent Councellers , fearing God ; Consiliarios Prudentes , Deum Timentes ; and that Bastards ( de adulterio vel Incestu procreati , ) should not be admitted to the Crown : it is both in Sir Henry Spelman , and in the Magdeburgens . cent. 8. cap. 9. pag. 583. &c. Edit. Basil 1567.

Egbert by all is a fixed settled Monarch , but without or against Right of Succession : Ordinatur in Regem ; So Ethelwerd , Omnium Consensu Rex Creatur , in Polidor ; Ad Regnum Electus , moxque imperare Iussus , Patriae desideriis satisfecit , as we read in the Monk of Malmsbury .

About this time the Mannor of Mallings in Sussex was settled on the Church of Canterbury by Act of Parliament , Consentientibus Magnatibus ; It had been given before by one of the Kings , but it was recovered again , Eo quod Magnates noluere Donationem illam Ratam fore . To what Sir Henry Spelman hath of 838 , I shall only add , that Matthew of Westminster doth afford us Princes , Dukes , Earls and Barons , both in that and former Years , besides Inferior Laios and Clergy , whom he calleth Rectores Ecclesiarum ; and in Ingulph we find Principes , Duces , Comites , Barones , Comitatus and Baronias with Proceres Majores , long before the Norman .

Ethelwolf , a Monk , a Deacon and a Bishop , yet Elected King , because they could not find a fitter person for the Crown , Necessitate Cogente factus est Rex , in Roger Hoveden , & Consensus Publicus in Regem Dari petiit , in Bale .

At Rome he repaired the English Colledge lately Burnt ; but he displeased the Parliament , by getting his Son Alfred to be Crowned by the Pope , and by Marrying a Daughter of France , whom without their Consent he styled Queen , which was against the Common and the Statute-Law , contra Morem & Statuta , as we find in Florilegus , to be compared with the Saxon Chronology , and Asser Menevensis , with Wigornensis and Malmsbury , before Stow or Polidore .

But notwithstanding his Coronation by the Pope , King Alfred did acknowledge his Kingdom to the Bounty of his Princes and Elders of his People : Deus & Principes cum Senioribus Populi , misericorditer ac benignè dederunt ; as himself speaketh in his Will , ( subjoyned to his Life by Menevensis ; ) wherein he also desireth to leave his People ( whom he calleth Noble West Saxons ) as free as mans Thoughts within him ; Ità Liberos , sicut in Homine Cogitatio .

How far West Sex did then extend , may be known in the Saxon Laws , with those of St. Edward and Hen. the first , where it is Styled , Caput Regni & Legum , ( as London before , ) to which all must have recourse , in omni Dissidentia Contingentum .

Edward the Senior was his Son , but Elected King by Parliament ; Successor Monarchiae Eadwerus à Primatis Electus , my Auhor is old Ethelwerd .

King Ethestane a natural Son , and so excluded from the Crown by Act of Parliament at Calcuth , yet being a gallant Prince ( of great Hopes and Virtues ) he was Elected : Electus magno Consensu Optimatum , & à Populo consalutatur & ab Archiepiscopo more-Majorum Coronatur , as we read in Malmsbury , Huntingdon and Virgil.

Yet there was a great Lord , Elfred , who opposed much , and e're long Rebelled , scorning to Submit to him , Quem suo non diligisset Arbitrario ; being sent to Rome to purge himself of this Treason , he Forswore it at St. Peters Altar , but fell down , and being carryed into the English Colledge , Dyed , and his Estate by Act of Parliament was given to the King : Adjudicata est tota Possessio , in magnis & in Modicis quemadmodum judicaverunt omnes Optimates Regni Anglorum , as the Kings Charter speaketh ; settling his Land on Malmsbury . How tender they were of Blood , I spake before , and of K. Williams Law , Nequis occidatur vel suspendatur : but Wigornensis and Hoveden speak of K. Henrys Law for Hanging any found in Furto vel Latrocinio ; yet in Ethelstane the Wergylds were agreed by Parliament , and a Kings Life valued at 30000 Thrymses .

Of Anlo's League among the Saxon Laws , that he was chosen King by some that rejected Edmund , we read in Florence and Hoveden ; as of one that Scrupled in Ethestane , because he had Sworn Fealty to Anlave in the Monk of Malmsbury , but it might be another Anlave .

Edred came in by Election , being preferred before the Sons of Edmund , who was King before him ; of his Parliament Summoned by Writ , we spake before in the Militia .

About this time were the Constitutions of Odo , de officio Regum & Secularium Principum ; they are found in Saxon , and are now Printed in Latin , to be compared with the Statutes of Calcuth .

What Power they had , may appear in Edwin , for Incest Excommunicate by the same Odo ; & unanimi omnium Conspiratione Edwino dejecto , Eligerunt Deo Dictante Edgarum in Regem , & Annuente Populo , res Regni Publica despertita inter Fratres ; and afterwards , Clito Edgarus ab omni Anglorum Populo Electus est , &c. Confluentibus Principibus , & omnis Ordinis Viris , cum magna Gloria Bathoniae coronatus est presentibus Praesulibus , ac Magnatibus Universis , Datis singulis Donariis consuetis , quae Reg. Coronat . dari Magnatibus consuescant ; of which Matth. Westmon . Malmsbury , Hoveden , and Florence of Worcester .

How this Mighty Edgar was handled and Humbled for Ravishing a kind of Nun , is observed by divers ; and that after his seven Years Pennance , ( being not to wear his Crown , ) Congregatis omnibus Angliae Principibus Episcopis & Abbatibus ; The Crown was again Restored to him , Coram omni Multitudine Populi Anglorum , cunctis Laetantibus & Deum in Sancto Dunstano Laudantibus , as may be read in Capgrave .

Baronius of this , and a great Lords Rape , ( of that time ) speaketh of some Appeal to Rome , whence Dunstan was commanded , Peccatori condescendere ; but he would understand it only , si Penitens Peccatum relinqueret ; Nec aliter ( saith Baronius ) potuit intellexisse .

Edgar being dead , there was much Contest in Electing the next King : De Rege eligendo Magna inter Regni Primores orta est Dissensio ; quidam Eadwardum ; Quidam eligerunt Ethelredum , as the Monk of Worcester , besides Hoveden and Matthew of Westmon . who agree also that at length the Arch-Bishops , cum Chorepiscopis , Abbatibus , Ducibusque quamplurimis , did Elect , Consecrate , and Anoint Edward .

Who enjoyed it with little quiet , and among divers Contests of Parliament , affrighted at the House Fall , or amazed at the Angels or some Strangers voice they knew not whence : E're long we find him hudled into Dust at Warham , which Queen Aelfrith ( or Aelsted ) attoned by Hospitals or other works of Devotion ; but a Fiery bloody Cloud followeth a Blazing Comet .

Of St. Edwards and St. Dunstans annual Festivals , established by Parliament , the Laws of Canute . It was that Dunstan who presaged so much ill of Ethelred ( at his Baptism , ) and to him at his Coronation , which yet was by consent of Parliament ; Matris suffragio proceribus Congregatis , as the Monk of Malmsbruy .

Where we have this Compendium of Ethelred : Regnum adeptus obsedit potius quam Rexit , Annis 37. Saevus in Principio , miser in Medio , Turpis in Exitu : So that we need not wonder at the Parliament which in his Time provided , that the greatest and the highest Offenders should have most punishment and heaviest Doom .

In the Danish Storm he fled to Normandy , and the Parliament sent him this Message , ( in Wigornensis , Hoveden , Huntingdon , Florilegus and All , ) That they would receive it again on Condition he would govern more Justly , or more Mildly ; si ipse vel Rectius gubernare , vel Mitius .

By his Son Edward he cajoled both the Lords and the Commons , Majores Minoresque Gentis suae ; promising to be wholly guided by them , and so return'd again . But he gave so little satisfaction to his People , that they rejected his Sons , and Elected Canute : Who did solemnly Swear to them , quod & secundum Deum & secundum Seculum Fidelis esse vellet eis dominus ; as the Monk at Worcester , and those that follow him .

Yet it is also agreed , that the Citizens of London , & pars Nobilium , did Elect Edmund Ironside ; and that the Kingdom was also parted between these Two , by consent of Parliament : and ( beside the croud in the Road , ) the Laws of the Confessor do assert that Agreement to the Parliament , Universis Angliae Primatibus assensum Praebentibus .

Edmund lived but a few Months to interrupt Canute , who was then received by Consent of All : Iuraverunt illi quod eum Regem sibi eligere vellent ; Foedus etiam cum Principibus , & omni Populo ipse , & illi eum ipso percusserunt , as Old Florence , and Hoveden , besides the Saxon Chronology ; and the Abbot of Croyland hath it thus , Omnium Consensu , Canutus super totam Angliam Coronatus .

Of his Parliaments and their good Laws I spake before , and of their Oath to the Kingdom much might be added : And besides all Historians , Fleta speaketh of his Brief or Writ , sent to the Pope , and of his Church-seed , payed ( as he saith ) Sanctae Ecclesiae , die Sancti Martini , Tempore tam Britonum quam Anglorum , Lib. 1. Cap. 47.

Harold came after , Consentientibus quam plurimis Natu Majoribus Angliae : As Wigornensis and Hoveden : Electus est in Regem , fuit N. Magnum placitum aput Oxenford , & Elegerunt Haroldum , as we read in Huntingdon , and Matthew of Westminster .

But Harold being dead , Proceres ferme totius Angliae , Legatos ad Hardicanutum Bricgae Mittentes , Rogaverunt illum ut Angliam veniret & Sceptra Regni susciperet . And afterward , Gaudentur ab omnibus suscipitur ; and Huntingdon addeth , Electus est : But he did nothing worthy of their Choice , and so became odious . : E're long , we find him swooning at Lambeth , in the midst of a Wedding Jollity , and soon after Expiring .

Edward the Confessor succeedeth by Election . Paruit Edwardus , & Electus est in Regem , ad omni Populo . And Florilegus addeth to Huntingdon , That Annuente Clero & Populo Londinis , in Regem Eligitur : As before them both , Ingulph , Omnium Electione in Edwardum Concordatur .

His Elder Brother Elfred stepping in between the Death of Harold and Hardicanute , Compatriotarum perfidia , & maxime Godwini , Luminibus orbatus est ; and little less than Famished ; Godwin excuseth himself by the Kings Service or Command , but it would not acquit him , though he bestowed costly Bribes .

Edward can hardly dissemble it ; Godwine rageth , flieth out into Rebellion , and is Banished ( it seems ) by Parliament : E're long , he returns again , presuming on his Great Friends and Alliance ; but in Parliament the King Appeals him of his Brothers Death , which Godwine denies , and puts himself upon the Parliament , as did the King , saying , That they had heard his Appeal , and the Earls Answer ; and it remained that they should do Justice , and pronounce Judgment .

It was in Debate , whether a Subject might Combat his Prince upon Appeal ; but at length the Quarrel was composed by the Parliament , ( till Godwine curseth himself , and is choaked , as his Lands swallowed in Godwins Sands , ) of which Old Wigornensis and Hoveden , with Malmsbury , Huntingdon , Florilegus , and divers others , but especially Aornalensis , and Mr. Seldens Titles of Honour .

That King Edward named the Duke of Normandy for his Successor , is affirmed by some that follow the Abbot of Croyland and Malmsbury ; but the Monk of Worcester asserteth Harold to be chosen by the King and Parliament , to be his Successor : Quem Rex Successorem elegerat , à totius Angliae Primatibus , ad Regale Culmen electus : as Roger Hoveden ( in the same words . ) And the Monk of Malmsbury confesseth , That Angli dicant a Rege Concessum , &c. Adding also , That Harold excuseth his Breach of Oath to the Norman ( in which All agree ) by saying , It was presumption so to swear or promise the Succession to the Crown , without consent and act of Parliament : Absque Generali Senatus & Populi Conventu & Edicto ; or , Absque Generali consensu , as Matthew Paris , and Westminster express it ; but what in them , is Tanto favore Principum , as in Malmsbury , and the continuer of Bede : Tanto favore Civium , regendum susceperit .

Of William the Norman much in the Militia , much yet to be added for his Election , and the Peoples free consent against his Conquest .

Londonias eum Episcopis plurimis Petit , & Laetanter receptus oranterque Rex conclamatus . So , the Abbot of Croyland living at the time , which Malmsbury expresseth thus : Londoniam petit , moxque cum gratulatione Cives omnes effusi , obviam vadunt ; prorupit omnibus portis unda Salutantium auctoribus Magnatibus : Ita Angli , qui in unam coeuntes sententiam potuissent Patriae reformare ruinam , dum nullum ex suis vobebant induxere Alienum . Huntingdon thus , Susceptus est à Londiniensibus pacifice , & Coronatus . Matthew Paris and Florilegus thus ; In Magna exultatione , à Clero & Populo susceptus , & ab Omnibus Rex acclamatus . Gemitivensis addeth , That ab omnibus Proceribus Rex est electus , & Sacro Oleo ab Episcopis Regni delibutus , as Walsingham in his Neustria . Wigornensis telleth us , that before his Coronation he did solemnly Swear , Coram Clero & populo , se velle Sanctas Dei Ecclesias & Rectores illarum defendere , nec non cunctum populum juste regere , rectam Legem statuere & Tenere , &c. So also doth Hoveden . Matthew Paris , in the Life of Frethrerick Abbot of St. Albans , sheweth how free the Norman found our Ancestors : Iugum servitutis à tempore Bruti nescientes , & more Normanorum Barbas radere , ( which they note in Caesar also of the Britains ; ) and concludeth , that pro bono pacis , he did solemnly swear to observe their Old Laws ; Bonas & Approbatas , antiquas Leges , quas Sancti & Pii Angliae Reges , ejus Antecessores , & Maxime Rex Edwardus statuit , inviolabiliter observare ; ( the like Phrase we find in Ingulph of the same Laws ) which was some Repetition of his Coronation Oath .

Some affirm that he refused to be Crowned by Canterbury ; but Neubrigensis telleth us , that he sought it of him , Tyranni nomen exhorrescens , & legitimi Principis personam induere gestiens ; but Canterbury denied to lay on his hands , Viro Cruento & alieni Iuris insavori . Then he complyed with York , and bound himself Sacris Sacramentis , pro Conservanda Republica , &c.

It might also be added , that if K. Edward might dispose the Crown as his own Fee , yet by the Common-Law , or Statute of Calcuth , he could not dispose it to a Bastard ; as K. William is expresly called in the Letters sent to the Pope , from the Parliament of Lincoln , in Eward the first , besides his own Charters , and of attempts to Legitimate him , ( that so he might succeed by Common-law : ) See the Comments on Merton in the second Part of Institutes , and of the Laws of Norway before .

But in the Old Book of Caen , we may find K. William on his death Bed , wishing that his Son might be King of England , which he professed he neither found or left as Inheritance : Neminem Anglici Regni Constituo Haeredem , non enim Tantum Decus , Haereditario Iure possedi .

That K. William the second , K. Henry the first , and K. Stephen came to the Crown by Election , without Right of Succession , is so much agreed by all , that it were vain to prove it . Their Elections and their Oaths , are every where among the Monks and good Historians : So also of Henry the second , and Rich. the first .

But in K. Iohn's Coronation we are brought beyond dispute , in full Parliament , of Archshops , Earls , Barons and all others , which were to be present ; the Arch-bishop stood in the midst and said , Audite universi , noverit Discretio vestra , &c. It is well known to you All , that no Man hath Right of Succession to this Crown , except that by unanimous consent of the Kingdom , with Invocation on the Holy Ghost , he be Elected from his own Deserts : Lectus & secundum Morum Eminantiam praeelectus , &c. But if any of the last Kings Race be more worthy and better than others , his Election is more proper or more Reasonable : Pronius & promptius in Electionem ejus est consentiendum : As it now is in Earl John , here present .

Nor was any one found that could dissent , or oppose what was so spoken ; for they all knew it was not without much Reason and good Warrant from their Laws and Customs ; Scïentes quod sine Causa hoc non sic definiverat : For which Matthew Paris , or Wendover , may be compared with Hoveden , Westminster , and others of those Times .

Which seemeth most rightly to state the nature of Succession , as it was in this Kingdom . So that all did amount but to this , That if a King had such Children , so qualified , and so Educated , that they were above others in Vertue , Wisdom , and true worth , ( or at least , Caeteres Pares , ) they were the most likely Candidates for the Crown .

But as we found before among the Iews , in the strictest Succession , where the Crown was especially tied to the House of David ; yet their great Sanhedrin had alwayes the Power and Right to determine of the Claims , Interests , Deserts and Vertues of Heirs , or all Pretenders : So if here we allow not such a Legal power of Judging of Claims or Titles , to be placed somewhere or other ; our Ancestors did leave the Crown at a more blind uncertainty than in all other things they were accustomed , from the Law of Nature and Right Reason .

I might add the Formal of Coronation , joyned to the Irish Modus of Parliament , under the Great Seal of Henry the Fourth , where we read : Electio à Plebe ad Regem , ut consecretur ; Postquam ad Idem iterum Consenserit ; and again , Electum interroget Metropolitanus , &c.

How our Allegiance was of Old , tied to the Kings Person , not to his Heirs nor to his Person but together with the Kingdom and the Laws and Rights thereof , hath been observed already . Much I might add of latter times , Nay , that very Statute of Henry the Seventh , which of late was pressed for the King and his Militia , or taking Arms with him as Allegiance required ; doth expresly declare our Allegiance to be to the Kingdom with the King ; and that by such Allegiance , men are tied to serve the King for defence of him and the Land . And for the Kings Heirs , I find them not in our Allegiance . Yet the Statutes of Edw. 2. are punctual in expressing the Kings Prerogative , or Rights of the Crown ; but where is provision for his Heirs ?

In Eward the Third , the Iudges Oaths were made , and stand among the Statutes as enacted by Parliament , ( although I do not find it so upon the Rolls ; ) And there is a Clause against Consent to the Kings Damage or Disherison : So also it is in the Oaths of divers in the Courts of Justice , as of Masters of Chnacery , with the Kings Serjeants , or Councel at Law , and others ; but not so by Parliament . See the third Part of Institutes , Cap. 101. Yet our Old Allegiance did forbid Disherison or Damage , but with Limitation , as we shewed before .

The late Oaths of Allegiance in King Iames , and of Supremacy in Q. Elizabeth ( taken by Parliament-men and divers others , ) are to the Kings Person and his Heirs and Successors , with particular Relation to defence of the Crown and Dignities thereof : Which is Remarkable , and that which may seem to excuse some , in not assenting to others which are not so obliged ; and yet it is thought by some , that the main or onely meaning of those Oaths , was against Rome or forreign Enemies : For which also a Declaration in the Queens Injunctions may be considered . But in all Cases of real Scruple , I cannot censure any that ( in a quiet humble manner , seeking Peace and Truth , ) followeth his Conscience till it is rightly informed .

In the Quarrels of York and Lancaster , there was an Act ( in Henry the Fourth ) to entail the Crown upon the Kings Issue , of which four are there named : But in Henry the Eighth , the Parliament declared the Succession to the Crown not yet settled or cleared enough ; and then it was entailed again , and for lack Heirs Male , upon Elizabeth : But this again repealed in Mary ; and again in Elizabeth and Iames.

How much or how little these annulled the Common-law , I must submit to others : lest upon debate , I should be forced to yield it might be possible for future Parliaments to reduce Succession to Election , as justly as some late Parliaments did turn the Common-law of Election into such or such a Succession ; which can only stand by Statute ; if it be true ( as all tell us ) that there was no entailed Inheritance but by Statute-law , since the Second of Westminster , of which before .

How little Power Kings had over their Crown or Kingdom without consent of Parliament ; ( besides all that is said already , ) might be further cleared from the acknowledgments of Kings Themselves , below the time of the Conquest .

In the Conquest , about Investitures , K. Henry the first wrote to the Pope , that he could not diminish the usual Rights and Dignities of the Crown or Kingdom ; and that if he should be so Abject as to attempt it , his Parliament would not permit it . Optimates mei & totius Angliae Populus id nullo modo pateretur .

In the great Moot of Scotlands dependance upon England , Edward the First confessed as much to another Pope ; to whom also the Parliament ( both Lords and Commons ) wrote , that they they were all obliged by Oath to maintain the Just Rights , Liberties , Laws and Customs of the Kingdom ; ( where we may see their Oath of Allegiance to the Kingdom , ) that nothing should be acted against Them , In exheraeditionem Iuris Coronae , & Regie Dignitatis , ac subversionem status ejusdem Regni , nec non praejudicium Libertatum , Consuetudinum & Legum Paternarum . These are on the Rolls , and printed on the Statute of Merton , and in Walsinghams Edward 1. and the Surveigh of Normandy .

And from other Records of the same King , we learn that when the Pope demanded the Grants of K. Iohn , he answered , That he could not do it , without consent of his Parliament : Sine Praelatis & Proceribus Regni ; being tyed by his Coronation Oath to keep all the Laws and Rights of the Kingdom , Illibati ; and to do nothing that might touch the Crown without their Consent . Which may be added to that before in St. Edwards Laws , of the Kings Oath , to do all things Ritè , per Concilium Procerum Regni .

When the King of France demanded Homage of K. Edw. the Third , he desired Respite , till he had the Advice of his Great Council , ( as we may read in Froizard ; ) because he could not act without them in such great Affairs .

And when the Pope demanded Homage of the same King ; he referred it to Parliament , who adjudged and declared , that K. Iohns Grants to the Pope , were unjust , illegal , and against his Coronation Oath , being done without his Parliaments Assent or Counsel : And yet K. Iohn's Charter ( to the Pope ) in Matth. Paris , doth pretend it done Communi Concilio Baronum .

And about Stephen Langton , the same K. Iohn did write to the Pope , that he could not depart from the Liberties of his Crown , but would , or should defend them to his Death : And hence began the Great Excommunication , which begot a Confiscation of the Church Revenues ; & hinc ille Lachrymae , which could not be stopped , till the Crown did stoop to Pandulph ; which might have excused the poor Hermit , Peter , from being so cruelly dragged from Corf● ▪ Castle to Warham .

But when the same King felt his Arms loose , he laid about him so , that all believed he meant to strike . In that Meen the Arch-bishop told him , It was against his Oath , to raise or make War without the Consent of his Great Court : Si absque Iudicio Curiae suae , Contra quempiam Bellum moveret , to be added to the Militia : But the fire was already kindled , and the Smoak or Flame brake out at Nottingham .

I must not touch the Barons Wars , except I had leisure to discourse and discuss them freely : Only , as we found our Great Charters , made up of old Laws and Customs ; so I might now also clear it more , that it was not a new Fetter on the King to have some Supervisors set about him , for to order all his Actions ; who , by his Coronation Oath , was tied to do nothing touching the Kingdom , but with Advice and Consent of the Great Council ; per Concilium , & per Iudicium Procerum Regni .

That it was so also among the Britains , to all observed before , I might add , the Old Scottish Custom of choosing Twelve Peers in Parliament to be the Kings Tutors , as we may call them ; for by them the King must be wholly governed ; Quorum Concilio Rex Regnum gubernare debebat , as we may read it in Walsinghams Edward 1. besides their own Chronicles ; that I say nothing of the Twelve Brittish Peers , of which Cambden in Siluribus .

We need not much wonder at the Writs in K. Iohn's Time , requiring all Men of all Conditions to oblige themselves by Oath , to maintain the Great Charter , and to compel the King thereunto : Et quod ipsum Regem pro posse suo , per Captionem Castrorum suorum , distringerent & gravarent , ad praefata Omnia Exequenda ; when as this very Clause was in his Charter ; Et illi Barones , cum Communa totius Terrae , distringent & gravabat nos , modis Omnibus quibus poterunt , scilicet per Captionem Castrorum , terrarum possessionum , & aliis modis quibus potuerint ; donec fuit emendatum secundum Arbitrium eorum . Which may be added to that before of our Allegiance , or Oath of Fealty to the King with the Kingdom , and of the Kings Oath to be guided by the Judgment of his Great Court.

Nay , as if K. Iohn's Salva persona , N. & Reginae N. & Liberorum N. had been too loose ; in K. Henry's Charter it was expressed thus , Licet Omnibus de Regno N. contra Nos insurgere ; Nay , and to do all things , quae gravamen nostrum respiciant , ac si nobis in Nullo tenerentur .

These times seem not to attend our Grand Maxim of State , The King can do no wrong ; or at least they understood it not , as some late Courtiers would perswade us : Yet it is true , he can do nothing but by Law ; and what he may by Law , can do no wrong : And if he do against the Law , his Personal Acts , Commands , or Writing , do oblige no more than if they were a Childs : And the Books call him an Infant in Law ( though his Politick Capacity be not in Nonage ; as the Parliament declared in Edward the Sixth ; ) which is not to exempt him from Errors , or to excuse his Crimes ; but to shew that he must be guided by his Council ; and that his own Personal Grants or Commands cannot hurt any more than an Infants ; which may be reclaimed and recalled by the Council of the Kingdom . So the Mirror saith , The King cannot grant a Franchise to prejudice his Crown or others ; because he holds his Right and Dignities but as an Infant , Cap. 4. Sect. 22.

If I should say , The Commons in Parliament are and were the Kingdoms Peers ; as well as the Lords , I might vouch an Old Authority , as good as the Ancient Modus of Parliament , which doth often call the Commons , Peers of Parliament , as well as the Lords .

So , debent Auxilia Peti pleno Parliamento , & in scripto cuilibet graduum Parium Parliamenti ; & oportet quod omnes Pares Parliamenti consentiant ; & duo milites pro Comitatu majorem vocem habent in Concedendo , & contradicendo , quam Major Comes Angliae , &c.

So in doubtful Cases of Peace and War , disputetur per Pares Parliamenti : and if need be , Twenty five shall be chosen de omnibus paribus Regni ; which are so specified , Two Bishops , Three Proctors , Two Earls , Three Barons , Five Knights , Five Citizens , and Five Burgesses . And again , Omnes Pares Parliamenti sedebunt , & nullus stabit , sed quando loquitur , ut omnes audiantur à Paribus . And again , Nullus solus potest nec debet recedere à Parliamento sine Licentia Regis , & omnium Parium Parliamenti , & hoc in pleno Parliamento ; Ità quod inde fiat mentio in Rotulis Parliamenti .

It may be possible , That Bracton and Fleta with others , may use the Phrase Pares , in such a sence ; when they say , That the King or his Commissioners should not judge and determine of Treason , but Pares . Which may be added to the 25 th of Edw. 3. reserving Treason to Parliament , where of Old , it seemeth only determinable ; so that The Mirror would not have it Endicted , but by Accusation and in full Parliament , as in King Edmund's Time , &c. Cap. 2. Sect. 11. and in Edw. the 3 d it was enacted , That Offences of Peers , and great Officers , and those who sued against the Laws , should be tryed in Parliament .

And although now the Phrase be given to all the Lords of Parliament , yet it was most or only proper to the Earls , whom by Law and custom the King styleth Consanguineos , and he might style them his Peers or Companions , as in Latine Comites .

So Bracton , Comites dicuntur quasi Socii Regis , & qui habet Socium , habet Magistrum ; and in another place , A Societate Reges , enim tales sibi Associant ad consulendum & regendum Populum Dei ; and the like is in Fleta , Comites à Comitiva dicuntur , qui cum viderint Regem sine Freno , Frenum sibi apponere tenentur , &c. which is also in Bracton .

The Mirror is yet clearer , although the King had no Equals , yet because himself or his Commissars might not be Judge , it was provided by Law that he should have Companions to hear and determine all his Torts , &c , Aux Parliaments , and those Companions were called Countees , ( Earls ) from the Latine Comites .

So also Sarisberiensis ( cited before ) in Hen. 2. Comites à Societatis participatione dici quisquis ignorat ignarus est literarum , &c. some will have them , Comites & Socii in Fisca , because of old , some Earls had a third part of profits accrewing by Pleas and Forfeitures in their Counties , as the Laws of the Confessor , and Mr. Selden in his Comes ; but he will also grant their name à Comitiva potestate , rather than from such Communion of profits .

That the old Sheriffs also , who were Vice-Comites , did come to Parliament , appeareth in the Ancient Writs and Histories ; and yet the Barons seem to be the Kingdoms Iudges , and the present Earls may seem to sit in Parliament but onely as Barons , who are now all Peers and Lords and Parliament .

But although the Lords were the great Iudges of the Kingdom , and of all Members thereof , yet it is well known , that in full Parliament , as old as Edw. 3. they did not only acknowledge , but protest that they were not to Iudge the Commons in Cases of Treason and Felony , being not their Peers .

How it was in Rich. the Second , may be seen at large in the Rolls and Records now printed : in Edward the Second the Commons proceeded by the Judgment of the Lords , for which also the Fructus temporum cited before , may be added to all in the Road.

Appeals and Writs of Error were from the King to the Lords , in Ecclesiasticals that touched the King , they were to the Spiritual Prelates , Abbots and Priors of the Upper House , by Act of Parliament in 24 Hen. 8. till which it may be Temporal Lords had also Cognizance of such as well as Temporals .

And Writs of Error in the Parliament were Judged by the Lords , for they came from the Kings Court , his Bench or his Exchequer ; and if Errors had been in the Common Pleas or below it , they should not be brought into Parliament , but to the Kings-Bench , and from the Kings-Bench , as from the King ( not otherwise ) they came to the Lords ; and although there was a formal Petition for removing the Record from the King ▪ it was but of Course , and the King could not deny it .

Which we found granted by all the old Lawyers and Historians , ( as I shewed before ) and by the grand Master and Patron of Law , King Edw. 1. in Britton , because none may Judge in his own Cause , Therefore in Causes where our self shall be Party , we do consent , que N. Court soit judg Sicome Counts & Barons in Temps de Parliament .

In the Laws of Hen. 1. one of the Chapters beginneth thus , Iudices sunt Barones Comitatus , qui liberas in eis terras habent ; for in those times Barons were by Tenure only , not by Patent , ( that I know ) till Beauchamp of Holt in Rich. 2. nor by Writ ( that I can find ) till the Barons Wars , but K. Johns Charter , is to Summon Comites & Barones Regni majores sigillatim per literas N. But all that hold in Capitae , by general Summons forty days before the Parliament , and that Negotium procedat ad diem assignatum , secundum consilium eorum qui presentes fuerint , quamvis non omnes submoniti venerint ; and the Summons of Delinquents or Suitors in Parliament , was to appear and abide the Judgment of the Court , not of the King , but of his Court , for the King is Father and not Judge of his People , in his proper Person , as was shewed before ; and all the Books agree that he must Commit his Jurisdiction unto Judges in the Courts of Justice , and when he might assume great Offices into his own Hands , by Parliament in Edw. the third , all Judges were expresly excepted , and the Judges Oaths , and several Acts of Parliament require them to proceed according to the Law , notwithstanding the Kings Command or Seal against it , and the Register affordeth a Writ to Supersede or Revoke any such Seal from the King himself to any of the Judges .

And the Lord Chief Justices , as the Lord Chancellor and Treasurer were Chosen by the Kingdom , as we found before in the time of Hen. 3. how much more then should the Lords of Parliament be made by Parliament ? for else they be the Kings Commissioners .

So the Roman saith , our German Fathers chose their Lords in Common Council , to be Judges , in iisdem Conciliis Eliguntur & Principes qui Jura reddunt . De Minoribus consultant Principes , de Majoribus Omnes . And Caesar also observeth , that their Princes ( or Lords ) were their great Judges ; sed Principes Regionem atque Pagorum inter suos jus dicunt , Controversiasque minuunt .

Yet Tacitus will also tell us , that with those Princes they did joyn Commons ; Centeni ex Plebe Comites ; which were ( perhaps ) the Fathers of our County Hundreds .

And in K. Williams Edition of the Confessor's Laws , when he inclined so much to them of Norwey ; Universi Compatriotae Regni , qui Leges Edixerant , came and besought him not to change their Old Laws and Customs of their Ancestors , because they could not judge from Laws they understood not ; quia durum valde foret sibi suscipere Leges ignotas ; & Judicare de eis quas Nesciebant .

How it was in Parliament , while there were only Barons by Tenure , would be more enquired . But of later times , Commons have adjudged Commons , and have joyned with the Lords in adjudging Lords ; of which there are divers Cases cited , in the Fourth Part of Institutes , Cap. 1. pag. 23.

It may be considered , that many Kingdoms , and Common-wealths ( that were not Kingdoms ) in all Ages did consist of Three Estates ; ( as of Three Principles in Nature , or Bodies Natural ; ) which might occasion the Phrase of Tribe , in many other besides the Romans : who in Three Estates , were not so Ancient as the Grecians or Aegyptians ; that I speak not of the Gauls , Britans , or the Eastern Nations .

And if any would observe , it might be possible to find the Prophets hinting a Trinity in divers Kingdoms or Estates ; and that not only for moulding , but for overthrowing them : Besides the Three Captivities , or Three overturnings of the Iewish State ; and the Three blows of the Goat on the Ram in Daniel ; as alluding to the Three great Battles which did break the Persian Empire .

And why may not the Sacred Trinity be shadowed out in Bodies Politick , as well as in Natural ? And if so , our Three Estates may be branched as our Writs , into Original , Iudicial and Executive ; as shadows of the Being , Wisdom , and Activity Divine .

If I may not grant , yet I cannot deny Original Power to the Commons ; Iudicial to the Lords , Executive to the King ; as the Spirit to the Body , or if you will , the Head ( or Fountain of Sense and Motion ; ) But he must see by two Eyes , and hear by two Ears ; as I touched before , yet his very pardoning although it be by Law much limited , ) doth seem to speak his Power Executive : And so his Writs do speak aright ; Because my Courts have so , and so judged : Therefore I do so , and so , command the Judgment shall be executed . And if any will assert the Militia , to this Power Executive , I shall also grant it to the King ; So that it may be alwayes under the Power Original and Judicial .

This might belong to the Lords , and that to the Commons . And the plain truth is , I do not find more Arguments to prove the Judicial Power to belong to the Lords , than I do for rhe Legislative in the Commons : And ( as it seemeth to be above , so below also ) it may be much disputed , That the Legislative , Judicial and Executive power , should be in distinct Subjects by the Law of Nature .

For if Law-makers be Judges of those that break their Laws , they seem to Judge in their own Causes : which our Law , and Nature it self so much avoideth and abhorreth . So it seemeth also to forbid both the Law-maker and Iudge to execute : And by express Act of Parliament , it is provided , That Sheriffs be not Justices , where they be Sheriffs . But if Execution be alwayes consonant to Judgment , and This to the Law ; there is still most sweet Harmony , and as I may say , a Sacred Unity in Trinity represented .

That the Commons should have most Right to the Power Original , or Legislative in Nature ; I shall leave to be disputed by others . I shall only touch some few Particulars , which have made me sometimes to suspect that by our Laws , and Model of this Kingdom , it both was and should be so .

How the Roman Historian found the Judicial power given to the Lords , by our Old Ancestors , I did observe before ; he is as plain for the Legislative in the Commons : Nay , to the Lords themselves , he saith in Judging was adjoyned a Committee of Commons , both for Counsel and Authority : Ex plebe Comites , consilium simul & Authoritas .

And again he sheweth , how the Lords did sit in Council , about the less Affairs ; but of greater , all both Lords and Commons : So also that those things which the Commons did determine , Quorum Arbitrium penes Plebem , apud Principes pertractentur ; they should be debated with the Lords , for their Advice , but not their Legislative Votes .

And the Mirror ( a good Comment on Tacitus , in this ) sheweth how our Lords were raised out of the Commons ; and giveth them a power Judicial , but where is their Ligislative ? Nay , the Modus of Parliament will not only tell us , that the Commons have better and stronger Votes than the Lords ; but that there may be a Parliament without the Lords , ( as well as Prelates : ) For , there was a time in which there was neither Bishop nor Earl , nec Baro , ( so the Irish Modus ; ) and yet there were Parliaments without them ; but never without the Commons . So that if the Commons be not summoned , or for Cause Reasonable , cannot , or will not come , for Specialties in which they blame the King ; Parliamentum tenebitur pro Nullo , quamvis omnes Alii status plenarie ibidem interfuerint .

And the Kings Oath is to confirm the Just Laws which the Commons ( not the Lords , but Commons ) shall Elect or Choose ; quas Vulgus Elegerit ; So in Latine , and in French of Edw. 2. and Edw. 3. Les quiels la Communante aur' eslu : And in English , of Hen. 8. and other Times , which the Commons of the Realm shall choose .

And if we look into the Old Writs of Summons , we shall find the Commons called , ad consentiendum & faciendum ; and the Old Writ addeth , quod quilibet & omnes de Comitatu , facerent vel faceret , Ii personaliter interessent : ( As it is in the Modus of Parliament , ) with sufficient intimation that without the Commons nothing could be done , which the late Writs express thus : Ita quod dicta Negotia Infecta non remaneant , pro defectu potestatis , &c. But the Lords are called , de quibusdam arduis tractaturi , & consilium Impensuri ; only as Counsellors , not as Law-makers : For the very same words are in the Writs , for the Judges and others coming to Parliament , although they do not Vote in making Laws .

This may also shew us , how the Lords themselves did Elect the Knights of Shires , ( and by Statute of Rich. 2. are to contribute to the charges of the County Knights ) who were to sit and Vote in Parliament as Law-makers for the whole County : whereas the Lords were there but as Judges , and the Kings Counsellors . And is it probable they should retain to their own Persons that for which they delegated others ? who were there to do , quod quilibet & omnes facerent personaliter , even all that all the Lords themselves should do as Freeholders , not as Lords or the Kings Patentees , who might so be his Councellors or Iudges rather than Law-makers ; this was more left ( it seems ) to the Commons , who for this and other Reasons should not be Common Iudges ( as I think ) in private Causes or of private Persons , but of Iudges , or of such as the Mirror speaketh , of whom elsewhere there was no Common Justice to be had .

But if the Lords had not a Legislative Right , why did the Commons send up the Bills to them ? how came the Lords to joyn with the Commons in Passing of Acts ?

It cannot be expected that I should shew the Original of all Changes or Distempers in this Kingdom ; It is work enough to shew our first Mould or Constitution : yet for this also it cannot be doubted , but the Barons Wars and Power might gain upon the Commons more than on the King ; he had such Bounds before that he could hardly be obliged more , or capable of granting much , but what was due before to all his People : But it might be easie for the Potent Lords to grow upon the Commons in the Name of Barons .

In that Name I say , for I cannot determine but the old Barons ( being the great Freeholders and the Lords of all the Manors that have left their Names in our Courts Baron , ) had by Law and Reason much more Power than had the Kings Patentees , Created Barons by Patent or Writ .

But this new Creation did but multiply the Iudges or the Kings Councellors , for by so taking their Commission from the King , they were only as other Judges in Inferiour Courts , and so did really lose their great Power of Iudging , which was proper only to those who were the Kingdoms Peers and Iudges . So that these Lords did justly admit the Commons ( or rather were admitted by the Commons ) into the grand Iudicature ; and it may be that as the Barons did communicate their Power Iudicial , so the Commons might communicate their Legislative unto those who had the Name , but little of the Nature of the old Barons by Tenure ; yet by so doing they might bring Confusion or an harsh Discord into Natures Harmony .

But the main occasion seemed thus , the King was tyed by his Coronation Oath to hold , keep and defend the just Laws and Customs chosen by the Commons ; Iustas Leges & consuetudines quas vulgus elegerit ; and this Limitation ( of Iust ) seemed to admit of reason or debate , so much as might convince the Laws required to be Just , for else I know not that the King was ever tyed to them .

And because he was or might be an Infant , he had still a great Council about him to discuss the Laws proposed by the Commons ; and for this Cause he did , and by reason might Summon the Lords , ( or any other Wise and good Man he knew , ) to come and give him Counsel , as the Writ speaketh to the Lords and Iudges , &c. De quibusdam arduis nobiscum tractaturi & Concilium impensuri ; So we find the old Acts passed per Consilium Baronum , as we might shew in all Ages .

And because he used to demurr at Bills , till he had the Advice of his great Council ; hence it may be ( for more Compendium , ) the Bill was sent up first to the Lords , as the Kings Counsellors , and if they Counselled him against it , then he answered , Le Roy s'avisera , The King will yet be farther Advised ; for he did not , and I think he could not give a denyal , nor of old ( perhaps ) Demurred , till the Lords advised him against it .

I dispute not how much the Commons might oblige the Commons without assent of Lords or King ; Nor have I yet said , that in the Coronation Oath the Commons Just Acts are called Laws , and to Mould them may be works distinct enough ; and the plain truth is , his Oath is to hold , and to keep , and to defend the Commons Laws , ( à Tenir & Gardir & Les Defenderer , per se tenendas & protegendas , ) as well as to Grant or to Confirm .

However , I do not see , either by Reason or Law , That the King was so obliged to the Judgment of his own created Lords ( and there be few or none others left in England ) that he might not be convinced by the Reason of the Commons , either without or against the Lords .

And ( beside divers Ordinances without any of the Lords , ) it cannot be denyed , but in Divers ages , there were Acts of Parliament made without or against all the Lords Spiritual ; which yet , often , were the Major part of the Lords House , and had as good , it may be better , Votes ( as Barons by Tenure ) than had all the other Lords , by Writ and Patent only : which might make them Judges or Councellors , much rather than Law-makers .

I should still be far from desiring to obtrude my own Fancies or Opinions upon any , least of all to the wrong of others : Therefore , if any can produce a better Title , my Petition is , they may be heard , and may receive their Just Rights and Priviledges . But if this be true , ( which I now only propose , and submit to better Thoughts and Judgments , ) then had the Lords of late but a Right Consultative of making Laws .

And besides all that was said before , this seemeth one Reason , why our Ancestors did so willingly follow the Vice of Nature , in placing the Power Legislative , Iudicial and Executive , in three distinct Estates , ( as in Animals , Aerials , Etherials or Celestials , three Regions , and three Principles in Naturals , ) that so they might be forced to consult often and much in all they did .

And if this frequent Consultation were retained , and observed still , it might not only occasion good Reviews , but also prevent That , which to the Common-wealth I fear ( and not Alone to private Persons ) may be sometimes prejudicial , in a sudden Vote or Act of one House , or one Body ; and yet one may be better much than Many , if they be not good .

It must be granted , that in Bodies of the Best Complexion and Composure here below , there may be such Distemper , and such Gangrene in some Members , that it may be more than fit to cut it off . Nay , what was best , may come to be the worst in Putrefaction ; That it may be meer Necessity to bury it , although it were as Dear as Sarah was to Abraham , or set on high by him that raised up the Brazen Serpent , which see e're long lye buryed with this Epitaph , Nehushtan .

And to all that is truly Just , the Commons of England will not need to plead a bare Necessity ; for by Law and Reason too it may be said , and proved ( I believe , ) That both the King himself who chooseth by his Writ , and All the Lords , by several Votes , have left the Legislative power so to the House of Commons , that they had a Legal Right to do what all the Kingdom and Common-wealth of England Justly could .

But They are Men , and therefore may be much unjust ; Nay , where the Thing they do is Iust , They may be much or most unjust . I have neither Calling nor Ability to Judge them : Nor may I act with force against them , for whate're I think Unjust : No , not if I should think they did Usurp the Crown .

For , if the Law Reports and Books deceive me not , it hath been Judged Treason , and so is ; for Private Men to rise , conspire , or Levy War against one that Usurps the Crown and Rights thereof ; except it rightly were declared Usurpation , or that others should or might oppose him that did so Usurp : Of which the Reasons may be Great and obvious .

Let me then suppose any one Man of all the Commons in Parliament , ( for I will not suppose it possible for All the House ) to Usurp the Royal Crown , with all its Dues ; what should I , what may I doe , but mind my Calling , and attend the Judgment of the Highest Court , I know ? That may command my Body , and my Judgment much ( for ought I see ) in things I know so little , as I do or can , the Due disposal of the Crown , or that Mighty Burthen , or that Royal Venom , as the Roman Emperor did call it .

I did , and still do , believe there may , and shall , be such a Monarchy ere long , t●●●ugh all the World ; that I shall gladly bow , and stoop , and bear the Yoke : For , it is easy , and the Burthen light .

I hope and believe , or know that God will come , and appear , ere long , to dwell in the World : For , the Earth shall be full of his Glory , and his Kingdom shall come , and his Will be done , on Earth , as now in Heaven , So , we were taught to ask ; and it therefore shall be fully answered .

I could desire him rather ( if he pleased ) in the still quiet Voice , then in the rushing Wind , or Fire , or Thunder-claps : Yet so , he came before , and shook the Earth : And so , it seems again ; yet once again to shake both Heaven and Earth . Overturning , overturning , overturning , ( for there also were three , ) till he comes , whose Right it is ; To whom , both Kings , and Lords , and all must bow , ( or be bowed , ) to submit , and cast down their Crowns , their Coronets , and all their Glory .

The Earth shall reel and fall , and rise no more . For , he will visit the Host of high ones , that are on high ; and the Kings , of the Earth , upon the Earth , they shall be taken , and cast into Prison , shut up in the Pit , and shall be visited , or wanting . Nay , he will darken the Sun , and confound the Moon , and make the Stars to Blush ; before he reigneth in Glory , among his Antients , in Jerusalem . His Tabernacle then , shall appear again , and rest among them : But BABYLON must first be pulled down .

We may deceive our selves , in chayning Babylon to any Town , or City , whatsoever : although one it may be , more especially . But Babel was the head of Nimrod 's Kingdom ; whence Tyranny did stream through all the World .

For , although the out-lets of Euphrates , be ( long since ) stopped , in the Fenns of Caldea : Yet , there is another rapid Torrent , Tygris , which from Babylon disperseth much Confusion , ( troubled Waters , ) into all the Seas about .

Nor may it wholly be unworthy of our Thoughts , how Babylon was alwaies the beginning , or the Head of Tyranny , through all this World . But fatal still , to most that did but touch it .

So to Nimrod , the great Bell of Babylon , and the Assyrians . Sardanapalus might effect an end , so like to Belus ; who was burnt ( some think ) with Fire from Heaven . So , that a Statue , was made of him , who left no Relique : And from hence , began Idolatry . So to Nebuchadnezer , and the Babylonian Monarhcy : when the Watchers saw him , strut and say , Is not this my Babylon ?

The Story of this , and of its loss to Persians , is so clear , in Sacred Writ ; That I need not enlarge it from Iosephus , the true Berosus , Megasthenes , Herodotus , Xenophon , or any later . Though it be also very considerable among those Heathens . And so , is that famous Ruine of Senacherib , whom Esay maketh a Type of all the Churches Carnal and Spiritual Foes : Insomuch , that from him , rather than Egypt , St. Iohn's binding of Satan , the old Dragon , the crossing Serpent , seemeth borrowed .

The Persian Empire , did begin from Cyrus , taking Babylon . It 's Pride and Tyranny , did much encrease ; then , when Darius won this Babylon again . But neither Cyrus , nor Cambyses , Darius , nor Xerxes ; ( or any other Persian Monarch , ) could much prosper , in ought of Consequence ; in Scythia , Greece , or other Places ; after they were stained , or cursed , with Babylon .

The Macedonian , was succesful very much ; but not accounted , any of those Monarchies , till Alexander lost himself , by gaining Babylon . 'T is strange , how great a Change it made in him ; that then became , a Cruel , Lustful , and Licentious Tyrant ; stay but a while , and you shall see him lose both Life , and Monarchy , at once , in fatal Babylon .

Philip was very young , but old enough to be the Father to a famous Grecian Epocha ( which used in the Machabees , and many others , ) first began in Babylon ; ( as Nabonassors's also , long before . ) The Character was Red , and dyed , with the Blood of all that Family .

Seleucus , durst not call himself a King , till well possessed of Babylon : From whence began the Kingdom of the North which was , ( in Daniel ) to wrestle , with the South or Aegypt ; till the Ships of Chittim , made him afraid ; and proud Antiochus was glad to bow , and speak the Romans fair , before he could be freed from his Circle ; though it were , but made in Sand , by a riding Rod.

Babylon was fatal to the Romans also : for , so far they prospered still , but never over , or beyond the Streams of Babylon . Charan was Tomb to Crassus's Army , as before to Terah : nearer much to Ura , ( found in divers , ) then to Urchoa , with Ptolomy .

Much I might speak of Parthians , Persians , Saracens , Turks . These seem as Angels , bound beyond Euphrates ; but being loosed , and possess'd of Babylon , their Tyranny was divilish . Now it is , ( or rather is not , but poor Bagdad ) in Turkish Hands , most times ; except an Army of Locusts , ( 't is remarkable , ) appear as Harbengers before the Persian . But his Sun must be eclipsed , with the Turkish Moon , before the Glory of Ierusalem .

But to return to Babylon , while Romans kept the Scene , they acted well ; but 't was a Tragedy , for some have thought they brought more Shame and Sin , and Tyranny , from all the Coasts of Babylon , then Brass from Corinth , or Antiquities from Greece . Thus Babylon was buried in Rome , but Rome is ruined by Babylon .

Edom and Babylon run Parallel , in Judgment ( through the Prophets , ) and the Iews were plain enough , in saying , or in proving , who is Edom , in this western World .

This Edom , did give name , all say ( since learned Fuller wrote his Miscellanies ) to the Red , or rather , the Reed Sea , but this may be doubted ; and the rather , ( with other great Objections ; for it is scarce a drop , to that the Antients call the Erythrean Sea , or Mare Rubrum ; never belonging unto Esau : ) in that Edom will hardly be found , to denote Red.

A great Master of the Arabick , and other kinds of Learning , in Cambridge , Mr. Wheelock , did almost perswade me once that Edom's Name , is better sought and found , in Arabick , where it may sound as much as Eator , or a Glutton : who did sell his Birthright , for a mess of Broth ; as Adam ( the first Glutton , ) sold his Paradice , and all , for a little Apple , or the like .

This Etymology , of Edom , I could the rather believe ; because in Tuscan , Latin , and so many other Tongues , Edo , Eso , Esor , ( and the like Words , ) do all signifie Eating : and in other Nations , the D , is only changed into T , its Cousen Germane .

How Edom came to be a Type of Rome , ( as the Iews so constantly affirm , ) may appear in due Place . This is very considerable , that among all other Judgments threatned on Babylon and Edom , ( for they are equals in most ; ) this is one , and the chief of all , that they shall be perpetual Desolations , and shall never return , or rise again , when they be fallen .

Tyre and Sydon , might return again ; Aegypt and Aethiopia : for Chush may reach to that also , from Chusiana , on the Banks of Euphrates and Tygris ; whence they passed through Arabia , ( and there left their Name also , ) cross the red Sea .

Moab and Ammon shall escape , from the last Northern King in Daniel ; and they shall return in the latter days ( a noted Phrase . ) Nay Sodom it self , shall return and rejoice with her Sisters , Samaria , ( for Ephraim in this also , seemeth to be the first born ; ) and with Ierusalem the younger Sister . So , spake the Type also , when Lot , and Abraham's Tennants of Sodom were , ( in the fourteenth great Year ) delivered , from the Oppression and Tyranny of all the four grand Monarchies , of Shinaar , or Babylon ; of Elam , or Persia ; Ellassar , ( the Prince of Ellas ) or Greece : which three also , may lie in the Heifer , Ram , and Goat , ( God's own Emblems , of the three first Monarchies ; ) which were divided , and broken about the Dove , and Turtle of Abraham ; and the King of the Gentiles , may typifie the Roman Empire : Although I could yet believe , there may be more in it . Antichrist , may seem to have two Horns , one in the West , and Christian Temple : the other in the East , and Jewish Temple . ( Edom and Babylon ) Mahomet did rise , about as bad a time , at Rome , as Hildebrand . But it may be , his Horn must end in Gog , and Magog , ( whence the King of Gogim , in Genesis ; ) which is very probable to be Alleppo , the Turks greatest Residence in Asia , directly North to Ierusalem : and of old , not only Hierapolis , but Magog also , in some antient Heathen Authors . But Edom and Babylon shall mourn and lament , in that Eternal Desolation ; while the whole Earth , besides , ( so speak the Prophets , ) shall rejoyce .

The World must be renewed , the Promise and the Blessing to Adam must not fail one tittle , nor could the Flood ( or its worst Causes ) disanul the Grace of God , established so long before . Nay , it was continued , confirmed , and inlarged , in the new Charter to Noah . The Scripture is very observable ; although I dare not be too confident in ought of Noah's Blessing , or Will or Commands , found in the Cave among the Tuscan ( Rarities much rather then ) Antiquities . Yet With much of those also there is more to be compared , then I have yet seen in Lazius or Berosus ( for Annius may be excused , who found it with that Title , ) but the Book was written by a Iew , if Tsemack David do not deceive me .

And the Jews with much consent , expect this glorious Change . Both touching themselves , ( who never yet ( 't is thought ) possessed half their promised Land , from Euphrates to the Sea , from Lebanon to Aegypt , nay , where ever their Feet did tread ) and others also of the Pious Gentiles .

To this day they shake their Palms in Triumph every way ( in their great Hosanna ; ) in allusion to the Psalms and Prophets ; who say , that every Tree of the Wood shall shout , rejoyce , clap Hands , and sing for Joy .

Nor do they think the time far off , and that from better Grounds perhaps , than is the old Prediction in their Zohar , which foretels their Redemption should be upon , or about , the Year last past ; to which they add somewhat they see , or have heard from their Brethren of Iuda in Brasile : or of Israel in other parts of America , which they cannot much believe ( till it be better confirmed ; ) although it be with many Arguments asserted by a grave sober Man of their own Nation , that is lately come from the Western World .

It is strange , if it should prove true , and that which might regain some of Esdra's Credit , ( besides all of Christ , and the Iews long Captivity , with their return about the Ruine of the Roman Empire , whose twelve first Caesars , with divers others , he describeth clearly ; ) in that also of the ten Tribes passing through a River or Strait , ( may it be the Strait of Anian ) in a long Journey of many Months or Years , to a Countrey not inhabited .

It is also remarkable , that such good Authors should relate the Traditions of the Mexicans , or others in those parts ; coming a great Journey , with an Ark carried before them on Mens Shoulders , with their God therein , and what others have observed of Circumcision found in some of those parts : with other Rites of Tribes , Heads of Tribes and Families , with some pretty Ceremonies of Marriage , Funerals , and Washings ; not altogether unlike the Iews , or Israelites .

However , it seems they left many of their Brethren behind them in Asia , though it must not be in Tartary . The World will not admit of it of late , although it was very current a while , in Dan and Naphtalim , Mount Tabor , or I know not what , in Ortelius and others .

But Millions of them , are still found in Persia , and other parts of Asia , though I give no Credit to their Kingdom in Caramania , or elsewhere described or feigned by Benjamin , the Jew in Eyre . Yet with him must be condemned ( if he lies in all ) some of our own , that have travelled in those parts .

Not only Master Herbert , who hath many considerable Passages ; besides that of a mighty high Peak of Taurus , for Ararat , not very far from the Caspian Sea ; which he saith the Inhabitants do still , to that day , call the Descent from the Ark , which would much have pleased Sr. Walter Raleigh , and other learned Men , that would not have Noah come out of Armenia ; though so many Heathens also do record it thereabout .

But to return to the Iews , and their Return ▪ It is so clear , and so full in the Scriptures ( both Old and New ) that I need not seek it in the Apocrypha , where yet are many Predictions of it clear enough , especially in Tobit . I mean the old Hebrew Tobit , brought from the East ; for that we have is broken and imperfect much , being only taken from a Iew 's Mouth , that Translated it to Ierome ; as himself confesseth , if I forget not . All the Prophets speak clearly of it ; but Ionas , that of him we have , was but a second Prophecy , which , besides all the Iews , somewhat in his own Words doth intimate : And we need no more ; for , in the Kings we find Ionas's Prophecy for Israel's , ( even Israel's ) Restoration , which is there also carried up to Moses's Song ( cited also in Ezechiel , besides other Prophets ) as that which is clear enough for what we speak .

So is Moses also clear , that great Troubles shall befal them in the latter Days : that is , in the time of the Messiah , as they all confess ; for so they still interpret the Phrase . And to this Place , with others , they refer their Afflictions , under Messiah Ben Ioseph . Whom ( I hope ) they begin to think already come : although Ben David do not yet appear to them , but Moses addeth , that the Gentiles should also rejoyce with his People Israel . For he would again be merciful to his People , and his Land , and so that Song endeth ; which was to be kept and considered , in the latter Days , or time of the Messiah .

Abraham was first told his Seed must be as Dust , and afterwards as Stars : Not Stars for Multitude I think , but Glory , Except there be more Stars then the Jesuite thought , who hath lately wrote a Book in Praise of the Virgin ; being nothing else but one Verse ( Tot tibi sunt Dotes Virgo , quot fulera Coelo ; ) which he hath changed above a thousand times , ( and might have done it much oftner , ) keeping the very same entire Words in a true Verse .

Abraham the High Father , had two Sons in special . Ishmael a Type of the carnal Iew ( who had also twelve Princes , twelve Patriarcks ) from Hagar , the Earthly Ierusalem : coming first from Egypt , and growing proud , she is driven out ( into Captivity ) but soon returns again upon an Angels Call .

Yet she must only stay till Isaac ( a real Type of Christ ) is born , and weaned a while ; and then , her self and Son ( for mocking Isaac ) must be turned out of doors , from Abraham's House , or Church . It was very bitter to good Abraham , but she must out . And she is yet in Bondage ( in the Wilderness , a long Captivity , ) together with her Son poor Ishmael .

But in this Wilderness , when she is near Despair , sitting alone , wringing her Hands , for Grief and Woe ; and her poor Son , at a distance crying , or rather gasping for Life , God will hear , God will hear , ( Return O God to the many thousands of Israel , ) and he will call , and speak kindly to her , in the Wilderness : He will then open her Eyes to see a Well , a Fountain of living Water . The Well of him that hath lived long , and looked on her .

For , when the Poor and Needy shall thirst sore , and their Tongue cleave to their Mouth , ( when they sit in Darkness , he will see and execute Peace , ) he will open a Fountain in the Wilderness : So do the Psalmists and Prophets often alude to this of Hagar in the Wilderness , an History of all the Bible , much , I may say , more remarkable .

After this shall Isaac come and seek his poor Brother Ishmael , he also shall come and dwell with his Brother at his Well Labairos : and thereabout he met Rebecca , though I dare not draw the Paralels . But it may be worthy of inquiring , that about forty Years old , he should meet his Wife at Hagar's Well .

The Iews do tell us pretty Stories of old Abraham's coming oft , and knocking at the Door to call and see his Son , though Hagar was much abroad and yet they say , she did return again at last into his House . And some will also have her to be Keturah , on whom Abraham had many Sons , that peopled the East . These seem to be the Abrahamides , or Brachmonides , of whom we hear so much , yet see so little , but their Names .

Certain it is , what ere became of Hagar , that Ishmael returned to Isaac , or rather Isaac to Ishmael . For , besides that of Isaac's living so much at Ishmael's Well , the Text is clear , for their being together at Abraham's Death , or Funeral . And Ishmael ( a better Man then some may think ) dyed in Honour , or as the Phrase is , in the midst of his Brethren , if I mistake it not .

Isaac ( a Type of Christ ) had two Sons , that Wrestled and Fought so soon as they had being . Edom the eldest ( which the Jews will have to be the Roman Christian Church , the first born to Christ , or Isaac ; ) yet must come to serve the younger , when he cometh up .

Iacob ( the Father of all Israel ) had two Wives . Leah the visible Church of carnal Jews , or Gentiles , bleer eyed ; not so lovely to her Husband as was Rachel . Who was long barren , but at length beareth Ioseph ; And she is then to leave her Father's House : For he will give them up ( for smiting Ioseph , ) until she that travailed bring forth , and receive her Son with Joy .

In this flying Posture , Iacob meets the Angels at Mahamin ( it was the way with the Canticles . ) He wrestleth and prevaileth with God , and with Edom. 'T is a great Mystery : But I am tedious .

Poor Rachel is loath to leave her Idols . These stick and stain her ( but they must be buried in Bethel , ) till at length she come to Bethelem-Ephrata ; and there she travaileth with Benjamin ; to her , Benoni ; for she must expire as soon almost as he is born . Nor did she regard the Words of those , that told her , that she had a Son : but she shall receive him again with Joy .

I dare not say that blear-Eyed Leah , was typified by old Lilith , of whom the Iews speak so much , and so Ill ; because she did so much displease our Father Adam , till God in pity cut him asunder , ( as they speak , and so doth Plato also , ) and of one of his Sides made Eve . Otherwise his Body had been more round ; Male before , and Female behind : To which they say the Psalmist doth allude ; besides that of Moses : Male and Female created he them , or him ; at the first .

They have also an antient Tradition , of which , the Talmud , and many of their best Writers ; that there should come two Messiahs , and the first should attempt , but not perform the full Deliverance : But that he should dye , and leave them in a doleful Plight , so long , till a second came , and relieved them all , and Reigned over them , as David : For , they call him Ben-David , as the former Ben-Ioseph , or Ben-Ephraim .

Not only for his Relation to Ioseph , but they use to call any Noble Gallant Man an Ephraimite . And in that of their First Messiah , they seem to allude to a common Story among them , of Ephraim's hardy Attempt to carry them forth from Egypt : But his Rashness cost him many thousand armed Men , drawing the Bow , but turning back in the Day of Battle ; as the Scripture seemeth to allude in several Places .

Those two distinct Men , ( with the Iews ) seem but two distinct Estates in One , and the same Messiah . Which two Estates seem also to be Tipyfyed by Ioseph and Benjamin , good Iacob's Darlings , and the Sons of his beloved Rachel , the good Jewish Church .

Somewhat it is the Scripture meaneth , I believe , in bringing Christ from Bethlehem-Ephrata : by which we are also led , and bid by St. Matthew to look on Rachel , falling in Travail there , and weeping for her Children , who were not .

And often did she Weep , if she could see how often they were not , or seemed not to be . So Ioseph in the Pit , in the Dungeon in Egypt , in Ephraim's first Attempt from Egypt . So Benjamin in that famous History , when all Israel wept as well as Rachel , because Benjamin was not .

Yet again , how oft did she , must she Weep ? poor Rachel weepeth till she see them all again : and so she shall in the latter Days , as saith the Prophet Ieremiah . And then also the Children of Barren Rachel may be more , than of Fruitful Leah .

And another Prophet saith , they shall be given up ( as deserted by the Father ) till she that Travailled shall bring forth : Nay , till she have leisure to attend with Joy , that a Man-child is born to her . Some have thought the Travailer to be Gentile Church , but it is Interwoven with Bethlem Ephrata .

I need not spend much time to Parallel the two Estates of our Messiah with this Ioseph , and this Benjamin ; The Lord will dwell between his Shoulders , more then when the Holy Place was in the Tribe of Benjamin : he also was cut off , ( as Ioseph was ) but did prolong his Days and prosper . Yet a little while , I hope , and Benjamin shall come down from his good Father ; and then shall Ioseph ( Ben Ioseph ) make himself known to his Brethren , who did hate him , shout at him , cast him into the Pit , deliver him to the Gentiles .

But he was brought from Prison and from Iudgment : At thirty Years he stood before the King , and was made Governour of all . His Brethren must come and bow down to him , tho they rememb'red not his Affliction ; yet he preserveth them in Aegypt : and tho Dead , yet goeth before them to Canaan in his Coffin ; of which the Jews have many Stories , in the Life of Moses and others .

They shall see him who they have pierced , and shall weep over him : For he shall melt them by saying , I am Joseph your Brother .

But he must stay till Aegypt be destroyed by Famine : and be glad to yield it self to Ioseph ; he must sit till his Enemies be put under him . And then shall come the Restitution ; when Babylon is pulled down . It filleth all the Scene as yet : And whil'st Satan acteth as if he were God , it is no Wonder that we see so little done of Good . I must not trouble the World with the time of this great Change : But it may be sought ( and perhaps found ) not only by Types , but plain Expressions in Moses , and the Prophets ; besides our Saviour's Words , and the Revelation .

This I may observe , that as Aegypt was broken before the Tabernacle was first raised , and Edom before the first Temple , and Babylon before the Second ; So both Edom and Babylon before the Third , in Ezekiel and St. Iohn : for I now seek not the three Temples in Ezekiel , Sitnah , and Rohoboth ( digged by Isaac ) as do many Iews .

Of all the Crimes of Edom and Babylon , this hath a heavy Charge : that the afflicted Heber , the People of his Love . But those that Curse them must be Cursed . How great a share in that this Kingdom had , I cannot say , there are Mistakes on either side .

We say they Crucifyed a Child , or more : They do deny it , and we prove it not . They say we drove them out from hence : it is not clear .

They were in Favour once at Court ; they did deserve Respect , who brought the Crown two hundred thousand Pounds per Annum ( little less , as mony now , ) for divers Years together . And King Iohn did give or sell them a Charter of Priesthood , or rather Presbytery ; for I know not that by this they ever Sacrificed . And the Charter yet remaineth , for old Jacob the Presbyter of all the Jews in England , during Life .

Their Use and Brocage was so burthensom , that in King Edward the First , one Parliament did quite deny them Leave of Usury ; and that did draw them , but not drive them hence . It was their Motion that obtained a Writ for safer Passage , which yet secured them not , but that the best of them were drowned in the Thames , by Fraud of those that undertook to Waft them over : But they hanged for abusing those poor Jews .

The next Parliament did grant a whole Fifteenth pro expulsione Iudaeorum , yet they had but a Writ for a Pasport ; and they were but 15000 and odd , if I may believe a great learned Judg , who has so Reported and Recorded .

How they are now , I need not say : although I might also bear them Witness , that they are yet Zealous in their Way : nor do they wholly want Ingenious Able Men , of whom I cannot but with Honour mention him that has so much obliged the World , by his learned Writings , ●ab Menasseh Ben Israel : a very Learned Civil Man , and a Lover of our Nation .

The more I think upon the great Change now coming on them , and all the World ; the more I would be Just and Merciful to them , to all : nay Universal Sweetness if I could ; a Christian overcoming all with Love .

And such one should be more I believe , if one had conquered all the World . For then there would be nothing left , but Self to Conquer . Then one would return in Love , and say , come forth my Enemies and Live , enjoy your Rights , your Peace and Liberties , with all your Ioyes . There shall not an Hair fall off your Heads . By this it shall be known , that God alone must Reign .

I know that Antichrist and Babylon must fall , and rise no more . But these are more in Hearts , then any Walls , or any City . Not only in the Heart , much less the Name of King or Lord : I Judg my self , or so I should much rather , and much heavier than I Judg another . For I see much cause to fear my self , lest I may keep a little Pretty , rather Ugly Antichrist within my Breast ; whil'st I am busie to destroy some others , more then it in others , or my self .

There is a sweeping Rain , oppressing more then any Thunder . There is a Pride most proper to a Leathern Coat . And one there was that trod on Pato's Pride , with Prouder ( it was said ) and fouler Heels .

I find it in the Scriptures : thence I know that Babylon must down , and be thrown down with Violence . More Force it may seem , than Form of Law .

Yet , even in such things , God seldom doth that which is not just in Man's Eye also . Nor did he ruine Babylon , or spoyl Aegypt , till they oppressed Israel . Nor did he bring the Iews by pure Force to possess Canaan , before they had purchased Sechem or Machpela ; with such a Legal Seisin as might warrant Force , or Forcible Disseisors , that so held Possession against the true Owners .

And what ever Force may appear in pulling down of Babylon , I do not Read or Know that the new Temple , or the new Ierusalem shall be built with Violence or by Violent Men , that may ruffle much in forcing Babylon ; But they may perish by the Sword that use it most . Moses was the meekest Man alive , yet he had a special Commission , ( that was a Patent sealed with the Arms and Impress of Heaven ) to ruine or impoverish Aegypt . He pulled down indeed , but he raised little but a Tabernacle : Only a Shadow of good things to come . And it must be abolished by him that was typified by Ioshua : For Moses could not bring them into Rest , altho by Force and a mighty Hand he brought them out of Aegypt . David was a Warriour and a mighty puller down : He cut off the Head of Goliah , and weakened all the Philistins ; he threshed Ammon , Moab was his Washpot , and over Edom he casts his Shoe . He shall be brought into the strong City , and shall harrow Edom and sow it with Salt , or cut off all the Males but one or two that can escape by Stratagem .

But yet , he must not build the Temple : for he was a Man of Blood ; and when he would but remove the Ark , Uzza is smitten , and David ashamed as well as afraid at that great Breach , which remaineth to his Day ; I had almost said prophetical of our Times .

From Perez Uzzah the Ark is brought but a few Paces ; for it must rest a long time with Obed-Edom , a mysterious Name , and when it comes from thence to the City of David , it must be content with a Tabernacle , with many Forms and Ceremonies : and among others Obed-Edom is the Porter to that Tabernacle .

Shall some of Edom also be brought in ; although his Desolation be eternal , or for an Age of Ages ? May they come to be Porters , as the Gibeonites were Hewers of Wood for the House of God ? His Iudgments are in all the World ; and so they must be long . But Judgment is his strange Work , and he delighteth in Mercy ; he will turn again , and be Merciful unto us . Nay , all the World shall Sing and Rejoyce .

The Sea shall roar a while , and all that in it dwells : but there shall be no more Sea , no more Death , or Hell , but what shall be sealed up in the great Pit . But the Earth shall Rejoyce , and his Goodness shall be over all his Works : they shall all bless him , they shall all praise him . Nay , all the Trees in the Forest shall Rejoyce .

This is also the more considerable , in that it was so clearly expressed in that joyful Psalm , which was made and Sung at David's bringing the Ark from Obed-Edom : But it is divers times repeated and inlarged in the Psalms and Prophets : For it is a great Mystery . Solomon the King of Peace must build the Temple up : there must not be a Hammer heard , or a Stone Squared , but before it cometh thither .

He is married to Aegypt , and in League with Tyre and Sydon : the Letters are yet to be found and read in old Authors : then Pineda , he is reconciled to Moab and Ammon : and the Arabians bring him Gifts , as did the Magi from the East . He spake peace to the Gentiles afar off : not only to the Queen of Sheba . I do not reject or believe all the Titles or History of Precious Iohn : But I could with a Sight of Solomon's Works ; and others in his famous Library at Amyra .

Nay , to the Isles of the Gentiles : We need not travel to Peru as some have done , to seek Ophir : it is nearer much , and better found in Zealand , one of the best Islands I suppose in all the World : and the learned Author of the late Peleg : maketh demonstrative Paralels of this with Ophir , or the Taprobane of Ancients .

Yet even Solomon , this peaceful King , had two great Enemies ; one was an Edomite ( David left but very few , ) and the other was a Syrian ; I do not say an Assyrian or Babylonian , altho these often come into the Name of Syria ( a vast Latitude . ) But the Text saith , the Syrian reigned about Damascus , which seemeth near the Borders of the old Magog ; and it may be compared with the Close of the 16 th . or rather with the middle of the 20 th . of the Revelation ; or with much in Ezekiel , about the time of his Temple ; or it may be , long after it was built .

The second Temple was built in a time of Trouble , and great Fear : For they held their Swords together with their Trewels . But yet it was not built by Power or Might , ( much less by Force , ) but by his Spirit and Goodness , that did overaw his Enemies .

Zerubbabel did hardly live to see his Temple ; or at least the City finished . This was but a gentle Visitation , as the Jews used to call it : not a Restoration of the two Tribes , much less of all , as the Prophets promise : Nay , some of them promised after this Return from Babylon .

And this Temple was imperfect much , it wanted divers Glories of the former : Five in special , as the Jews affirm ( at the want of 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 in the Word foretelling its Glories ) which never were recovered : tho great Herod did encrease the outward Glory . And there was a greater than Solomon to give Peace in that place : and so he did to all the World . 'T is known how oft the Romans shut the Temple of their Ianus .

But why could not this Peace endure ? was it because this Temple was not founded in Peace ? for Ephraim envyed Iudah , and Iudah vexed Ephraim . Nay among themselves they could not agree : for some wept , as others laughed .

But when the People did with one Voice , and one Consent , Sing out to Bless and Praise the Lord ( so saith the Type in Solomon , ) then , and not till then , the Glory of God came down and fill'd the House ; so that the Priests could not enter ; nor it may be , needed in that Glory . This was but a Type of somewhat yet to be fulfilled , more , much more in building of the new Temple .

Solomon did also then pray that all the Earth might come to know the Lord , and serve him , as his People Israel did . And this was heard and answered by God ; and almost all the Prophets , who with much Consent assure us , that the Earth shall be full of the Knowledg and Glory of God . And that he shall be served with one Consent , and with one Shoulder : even from the rising of the Sun , to the going down thereof . ( For it is worth observing how Learning and Religion , came along with the Sun from East to West . ) In every Place shall Incense be offered with pure Oblation . And then Ephraim shall no longer envy Judah , nor Judah vex Ephraim .

If I durst assert Esdras to be Scripture in any thing ; it should be in those most considerable Prophecies of the Ruine of the Roman Eagle , to which it may be , our Saviour also alludeth ; as he seemeth to do in divers other Passages , found no where that I know , but in Esdras .

And about the Fall of that Roman Eagle , he seeth a great Multitude of Fighters , ( as in Armageddon . ) But at length arose a Man , who was the Son of Man , that called to him a peaceful People , that should leave off War , for it should cease in all the World ; their Swords and Spears must be beaten into Plow Shares and pruning Hooks .

And when the Multitude ( in the Revelation ) stand and Sing the new Song , the Song of Moses ( of the Sabbath , or the Red Sea , ) and the Song of the Lamb ( not yet known abroad : ) Then , and not till then , is the Vail of the Tabernacle in Heaven Opened . But there was yet a Smoke to cloud that Glory .

But when the seventh Angle shall sound , and all the Kingdoms of this World become the Kingdoms of our Lord , and of his Christ : and those be destroyed , that destroyed the Earth . Then shall the Temple of God be fully opened in Heaven , and the Ark of his Testament ( the Model shewed to Moses on the Mount , ) shall be seen and viewed in that Temple : not in a Tabernacle , but a Temple : then also shall the four Beasts ( which in Ezechiel's Mircavah , the Jews will have to be the Emblems of the four great Monarchies in Daniel : ) even these four Beasts ; and the Elders of Presbyters ; with all the Angels of Heaven , and all the Creatures of Heaven and Earth , and of the Sea , and under the Earth ; ( how long , or how far this may reach , I know not ) all shall fall down about the Throne , giving Honour and Blessing , and Praise to him that sitteth on the Throne , and to the Lamb , for ever and ever . And the four Beasts again in special say Amen . There is much spoken of a Personal Reign of Christ upon Earth : I do not affirm it , yet I believe there is more , much more for it , then I have yet seen in any of the many Writers on Daniel , or the Revelation . And beside the Judgment of so many , if not all the Orthodox in Iustin Martyr's time : there be some very antient , ( almost Apostles ) that relate how our Saviour himself discoursed of this Kingdom , which the Acts do but Intimate .

But for my part , I do acknowledg my self to be so ambitious , as to expect somewhat much higher and better then his bodily Presence , which yet I long for : as the Captive hasteth to be loosed . But this would please or profit little without Life and Power , and Real Light above our Doubts , Disputes , or Demonstrations .

Nor would this much profit man , or please God , I think , without true Love , proportionate to such a Light .

The first Paradice had one River parted into four Streams , and one Tree of Knowledg : but of Evil rather than Good . The new Paradice shall have many Rivers of Knowledg , to cover the Earth , and many Trees of Knowledg also ; whose very Leaves shall heal the Nations ; what then shall their Fruit be , but Resurrection from the Dead ?

I see so much of this vain World , that I cannot but earnestly desire and long for a new Earth , and for new Heavens : but yet I should not value or desire them much , were it not that in these I hope to see more Iustice , and more Mercy .

Is not that the World to come , of which the Hebrews and our Saviour speak , as pardoning all but one Sin ? The Phrase is common with the Jews , who do expect it on Earth ; and the Prophets make it a pardoning World to come , so that the Inhabitants shall not say they are Sick , for their Iniquities shall be forgiven .

I must confess my Hope is , that he that bid us still forgive so much , that we might be like our Father : meaneth himself to forgive very much ; being himself the Founder and great Patron of that great Order of Christians , whose Badg is this , Conquer thy self , and others Evil by doing Good .

Elijah must level his Way , and many ( if not all the Antients , ) thought Elijah yet to come ; which our Saviour also seemeth to intimate with that at his Transfiguration . And the Jews repeat the Verse of the Prophet Malachi , which seemeth also to speak of two Days ; and all Elijah's Work was hardly fulfilled at Christ's first Coming .

However when that Levelling is over and past , the Lamb shall come of another Spirit . For the Son of Man came not to destroy , but save : He is the Prince of Peace . And when he shall come to Conquer ; He will come on a White Horse , and shall ride on Prospering , because of Meekness , with Truth and Righteousness . He will have Mercy and not Sacrifice , and that will please him more than all burnt Offerings . He will make our Officers Peace , and our Exactors Righteousness : For Violence shall be no more : But a King shall Rule in Judgment , and a Man shall be an hiding Place from Storm and Tempest .

I will hear what the Lord God will speak ; For he will speak Peace ( as well as Truth ) to his People , and to his Saints ; that they may no more return to Folly , or have Cause to Blush . Mercy and Truth shall meet together , Righteousness and Peace shall kiss each other . Truth shall spring out of the Earth , but Mercy ( this the Jews called Righteousness ) shall come down from Heaven ; for the Kingdom of God confisteth in Peace and Ioy , as well as Righteousness .

For the Fruit of Righteousness is Peace , and Assurance for ever ; being sown in Peace , of them that make Peace . Such is the Wisdom from above , and such are the Fruits of the Holy Spirit .

What shall we say then to the Messenger of the Nation ? or to the Angel , spoyling Edom and Babylon ? What ? That the Lord hath founded Sion , and the Poor of his People shall trust in it : He will leave an afflicted poor People , and they shall trust in the Name of the Lord ; and then will he give them a pure Language , that they may all call upon him with one Consent .

Thou hast indeed smitten Edom and Babylon . Let not thine Heart lift thee up , for why wilt thou meddle to thine own Ruine ? that thou shouldest also fall , thou and all Juda with thee .

Shall the Sword devour for ever ? Knowest thou not that it will be Bitterness in the latter end ? How long shall it be then , ere thou bid the People return from persuing their Brethren .

Again , and yet again , I bow my Soul and Pray , and humbly Beg ; That all may be both Iust , and Iustly done . Not with Justice only , but with Pitty and great Compassion , and much Mercy , for in many things we fail all .

I say that the Commons also failed to the Common-wealth . But to speak freely , altho I will not Judg the Commons , yet I cannot Justifie that House ; but I must also Condemn what was lately done to them also , ( even to the House of Commons ) by that Army which hath often been acknowledged , to have both served and saved them from Ruine or Slavery .

I desire not to dispute matter of Fact , nor can I Judg it . It is true that by express Law ( besides all of Reason and Nature ) there should be no Force of Arms near , or so much as in appearance of overawing the Parliament : and I looked on it as an heavy Charge on some that perswaded the Scots , or the Northern Army , to look as if they would have moved towards the City and Parliament against its Will. Nor can we forget , it was so late , that the House voted it Treason to act by Command of Parliament , under a visible Force .

But how shall wee know or discern this visible Force ? They may be Free under that which I may think a Force , and therefore I must believe them to be Free , unless they declare themselves to be Forced . For by Judging what is the Priviledg of Parliament , I may certainly break their Priviledg ; while I inveigh against others for so doing , and by this incur the Danger of those that Judg before the time , or out of Place ; for I suppose I see 100 of the Commons seized and secured ; I cannot Judg it a Breach of Priviledg , because I know not but it might be done by the Command , Order , or Consent of Parliament ; till it declare the contrary : Or if not by Order of Parliament , yet it may be by some Officer , Virtute Officii ; or if by private Man , yet upon some emergent Necessity , or such Reason , that I or others may not Judg , much less Condemn but in Parliament . For it may be possible perhaps ( but I hope not probable ) that some Parliament-men may design or consent to such a dangerous Treason or Felony , that it may be the Duty of Officers or others to detain or secure them , till the Cause be heard in Parliament : and Resistance of any that detain upon suspicion of Treason , hath been adjudged Ground enough to Justifie Detention and Securing , till there be a legal acquitting . And that species of Treason , which is against the Kingdom , or the Kingdoms Army , may so much concern a General , that it cannot be wondered if he should be the Accuser or Attacher : who is the Kingdoms Sheriff , and intrusted with the Posse Regni ; which he ought to manage for the best Advantage of the Kingdom : prout & melius visum est , in Honorem Coronae , & Utilitatem Regni : as the Confessor's Laws de Heretochiis ; and yet he is no Judg of this , but must submit it to the Courts of Justice ; and in special to the Parliament , when ever it concerneth any of that Body Representative .

I say not , that the House should not , or need not demand their Members ; and the Cause of any such Detention ( which still ought to be submitted to the Judgment of Parliament , ) but I think it may be possible to suppose such a Case as cannot soon be heard and adjudged ; and in such Case , I do not know it is absolutely Necessary for the House to sit still , and to refuse to act at all , till all their Members be restored . For by this it might be possible for a few mischievous Persons , still to keep the Parliament in such a perpetual Imployment , or rather Idleness ; that they should do nothing but Dispute their own Priviledg , and breach thereof . Whereas it may be such a Case , that should make them that be Free , to be more active in the publick Service , Ne quid Detrimenti capiat Resp. while some cannot , and others will not come to do their Duties .

Yet if any be Zealous to spend their Time , or rather the Kingdoms , in Disputing an airie empty Species of Priviledg ( which themselves may reflect or refract at Pleasure , every Moment , ) I may not Condemn or Judg them : But when the Sea breaks in , I should fear it a Madness in my self , to sit and frown with a Spanish Gravity , chafing at those that broke down the Banks , till the Waves come in , and drown me with my Friends and Country .

I do not deny but that by the Law and Custom of Parliament , 40 may be an House of Commons as well as 400. Yet to speak freely , I could believe it to be the Duty of such 40 to call in their fellow Members , especially when the Work is great and weighty . And I must confess I should somewhat wonder to see 40 sit alone , about the greatest Matters possible , without so much as calling the rest , or sending Writs for new Elections .

The Modus of Parliament telleth us , that as the King might not absent himself ( but in the Case of Sickness , and then he must lie in the same City or Mannor , ) without Consent of Parliament ; so also there was great Caution against the Members absenting themselves ; so that it was expressed in the old Writ of Election , that they should not depart from Parliament without Consent of Parliament . But I know not whether the Crime may be so great in those that desert their Trust ; as it may be in those who permit them so to do .

But I will suppose the House of Commons is both Full and Free ; which we may , and should ( for ought I know , ) till they declare it otherwise . Yet when they are freest , they have Limits ; for they be not Infinite . Nay when they are most Free , they are most bound to good Orders and to right Reason .

They which bring them to this at any time ( though by any Army of Arguments , or any thing else that is Reasonable , ) are so far from enslaving them , that indeed they make them Free , compleatly Free ; and when they are set Free , they are the more Inexcusable , if they be not Rational ; for when Men are Slaves , they may be the more excused , for acting without or against Right Reason ; which to Man is the Natural Law of Liberty .

Which is not a Power to act quicquid Libet , what we list , ( for this may be Licentious , and a Lust or Passion may enslave a Man as much as any Chain or Fetter , ) but quod Licet , what is Iust and Rational ; or as some of the Schools express it , by the Wills following the Dictates of the Understanding , or Right Reason , rather than by a blind irrational Indifference , or Power to Contradict its own Acts , or to suspend its own Acting ; which is not found in all , no not in the best Agents , in their best Acts about the chiefest Good , most Free and yet most Necessary : and wherever such Indifference , or such Suspension is , it is a Stain or Spot , and may be Slavery rather than an Ornament or Badg of Liberty : For it ariseth from some Darkness , in not discerning what is best ; or from some Inconstancy , or Inability to follow it ; which without Suspence should be always Embraced , and followed by Right Reason .

But what is this Reason ? is it only Discourse , as the Schools use to express it ? who yet find somewhat higher in Man , even a kind of Intuition , which the old Philosopher did make the highest Sphear of all in Man's Soul , Concentrical to Good , when both Reason and Fancy were Excentrical .

But to me the Word 〈◊〉〈◊〉〈◊〉〈◊〉〈◊〉 ( which we translate Reason ) seemeth to be the first used of Proportion in the Mathematicks ( Mother of all Analogy , and of most Learning to the Ancients : ) so that those were called Rational Agents which acted in Proportion .

So the same old Philosopher ( that saith , God ever acteth in Geometrical Proportion , ) placeth Reason in a Mean , between two Ends or Objects : and the Master maketh Reason to be Mistress , both to Art and Prudence , ( this is Proportion in the Moral , that in the Natural Part of Actions ; ) and describeth Virtue by a mean Proportion , which he calleth Reason ; as a Wise Man would define it . As the Sacred Writer of the Number of a Man ; that is perhaps Rational , a Logarithm , or a piece of true Algebra , which we may Translate Mans Numbring : For of all Visible Creatures , Man only was found to use Numbers and Proportion .

But what is this Proportion , which Denominates an Agent to be Rational ? Is it between the Actor and the Object ? and do Rationals only observe a Difference of Objects ; whereas Natural Agents go on alike to all , Eodem modo ad Extremum posse ? But Rationals still do , or still should act in Proportion suitable to themselves , and to their Objects also : which is two or three times observed by the Prophet Esay , in describing Reason , in that of Ploughing and Threshing , and of Punishing , with that of the rough East-Wind : Chap. 27 , 28.

But there is a more inward Proportion yet to be found in rational Agents , when their Activity is proportional to their Being , and to their Knowing : and when ever these three are preserved Equal or Proportional , there is true Liberty . So it seemeth to be in God , ( may be so darkly shadow out the Blessed Trinity ; ) His Being , Knowing , and Activity are Infinite ( and therfore Proportional to each other ) and absolutely Free , altho Necessary .

By his Knowing , he freely comprehendeth ; and by his Acting , freely diffuseth his own Being : So that all the Creatures seem as several Rayes , or Ideas ( rightly called Species , ) acted , that is , diffused through infinite Knowledg ; from , or rather within Infinite Being ; which the Iews call the Place , in which we Live , and Move , and have our Being .

Creation was of somewhat not appearing before ; so both Reason and the Scripture teach : But how it was , or could be , from meer Nothing , would be more considered : and it may be the Hebrew Word may signify to Cleer , Manifest , or Reveal , somewhat hidden before ; rather than to make of Nothing Something ( De novo , ) which may seem impossible , if there ever was Being Infinite , ( as much real Entity , as there could be , ) altho not so visible in all its Moods , as it was since the Revelation , which we call Creation .

All the Creatures have some Image of the Creator's Being and Activity ; it may be also some kind of Knowing suitable to both : for which there is much to be said , and perhaps more then is yet written by any de sensu Rerum : where we might also find Causes of Antipathies , and such as are now called occult Qualities . And wherever Activity , ( for this is most to Sence , and by this we used to measure Freedom , tho it should it be in Knowing as much as in Doing , ) is preserved equal , or proportional to Being , there and there only , seemeth to be true Liberty : which may most appear in the Actings of those Beings which are most knowing .

Shew me then the Sphear of Man's Being , and you may quickly find the Measure of his Freedom : his being is by all agreed to be Rational , and Reason therefore is the proper Measure of his Liberty . For he is then Free , when his Activity is preserved equal or proportional to his Being ; this is Rational , and so must that : and Man is then , and then only Free , when he can Act what he should Act , according to right Reason . This is the Law of his Nature , which is Rational ; and Reason is his Royal Collar of S. S. S. or a Chain of Pretious Pearls , which Nature hath put about his Neck and Arms , as a Badg of Honour , and most happy Freedom .

This Digression would be scarce excusable , but that our Law doth so adore right Reason ; that is a Maxim , What is contrary to Reason , is contrary to Law .

Knights Service ( with Ward and Marriage ) draweth Relief : but Reasonable by common Law , before the Charter , and the Statutes do ascertain Aydes , which were before to be Reasonable .

Guardian in Chivalry need not account : but Guardian in Socage , Prochein Amy , or Tutor Aliene , be liable to a reasonable Account : For the old Writ requires Compotum rationabilem . But an Action of Account will not lye against an Executor , to such in Socage ; ( tho this hath been pressed in Parliament , ) because it was not reasonable ; but in case of the King , it was so adjudged .

Tenant at Will , ejected by his Lord , shall by Common Law have reasonable Time to remove his Family and Goods , with free Egress and Regress , during the said Fine reasonable .

Tenant by Copy , with Fine uncertain ; is not wholly at his Lord's Pleasure : for by Common Law , he must only make a Fine reasonable .

Housboot , Hedgboot , Ploughboot , all Estovers ( both for Tenants and Prisoners ) must be reasonable , and so must all Partitions between Parceners , and upon Elegit , &c. Which are therefore not left to the Sole Pleasure of a Sheriff , or of any other , but in a sworn Enquest , as we may find in the Writ de Rationabili Partitione .

In divers Mannors , there be many petty . Customs which can hardly be brought into publick View : but for those , and for all , the Law hath a short Text , Que nest pas Encountre reason , poit bion estre admitte & allowe : And the great Commentator addeth , Lex est summa Ratio .

If you ask him who must determin of Reason , or what is reasonable ; his Answer would be , that if any man find himself aggrieved by his Lord , or his Fellow Tenants , the Law supposeth the Iudges Breast to be a sufficient Closet ; or , if you will , a Castle for right Reason .

I remember one Case , ( and there may be divers , ) in which the Law leaveth private Men , ( even in their own Causes , ) to be Iudges of Reason , or what is reasonable : It is a case of Escuage .

The great Charter dispenseth with personal Service , ( in some Cases , ) where it is not reasonable a Man should serve in Person : and the Reason of this runneth so through all Escuage ; that if any Man will send another in his Room , the Law dispenseth with it , supposing he seth reason not to attend in Person : Nor may he by Law be compelled in such Case against his own Reason .

Most , if not all other Cases in that Tenure , are by Common Law left to the immediate Reason of the Parliament , which may be worth a little Pause ; as that which may somewhat clear the grand Question of the MILITIA .

It is true that by the Common Law , and by the Laws of the Confessor , cited by some , to assert the Commission of Array ; Men ought indeed to have Arms , and them to keep in Readiness for Defence of the King and Kingdom .

But it is also true that this , besides other Passages , is strangely cited and applyed for Defence of that Commission of Array . For altho the Close of the Sentence be as they say , Iuxta praeceptum Domini Regis , &c. Yet the same Sentence ( had they cited it whole , ) seemeth to be much more against the Array , than for it .

For the Arms required there , must be Assessed by Common Consent : and that also limited in that very Sentence , to the Proportion of ever Man's Estate , and Fee for the Defence of the King and Kingdom ; and for the Service due to the Lords , Iuxta praeceptum Domini Regis ; and these Words in this place do refer to the immediate precedent Words , Servitium Dominorum ; which by the Custom of the Kingdom was so Limited , that in all Homage or Fealty , there used to be added this Salvo ; Salve lay foy que jeo Doi , à Seignior le Roy.

And lest King Edward's Laws should not be plain enough secundùm quod eis statutum est , & adjudicatum , & quod debent : King William the first , by Advice of his great Council explained them thus ; that nothing should be exacted or taken , but Liberum Servitium ; free Service . Prout statutum est , per commune concilium totius regni ; as it was established by the Common Council of the whole Kingdom : which is also a clear Proof , for such a Common Council in his time , and before .

In the same Laws , this William ( whom some call the Conquerour ) granteth that Cities , Burroughs , Castles , Hundreds , and Wapentakes , should be so kept and watched , as the Sheriffs , Aldermen , &c. should best order for the good of the Kingdom , per Commune concilium ; by such Common Council : and a little after giveth this Reason , Because they were founded for publick defence of the Kingdom and People thereof , idcirco observari debent , cum omni libertate , integritate , & ratione ; a very happy Trinity .

And for Service , with such Arms as were by Common Council assessed : The same King ( called the Conqueror ) hath indeed such a Law , That all Earls , Barons , Knights &c. should have and keep themselves in Arms and Horses , as it became and behoved them : So much of this Law , the King's Declaration cited for the Commission of Array . But the following Words of that Law quite dash such Array ; for the Close of all is , according to what they ought to us , by their Fees and Tenure , to do by Law ; & sicut eis statuimus per commune Concilium Totius Regni : Even by Parliament , for the Common Council of the whole Kingdom .

These Laws of King William , with the Additions and Emendations of the Confessor's , were afterwards confirmed by King Henry the 1st . as appeareth by his Charter ; not only in the Exchequer , but in other Places also ; besides that we have in Matthew Paris ; a Copy of which was kept in every County . And the same Charter was again confirmed by King Iohn , ( they know it may be proved ; ) and again by King Henry the 3 d. and so it came into the great Charter , and by Consequence Confirmed , in more than thirty Parliaments .

In which also there hath often been , most especial Care of this touching the Militia , being one of the main Causes of those Statutes , entituled Confirmationes Chartarum , and of those De Tallagio non concedendo ; except by common Consent in Parliament : besides many later Statutes , in King Edward the 3 d. and Henry the 4 th . with other Times .

I deny not that in Henry the 4 th . there did issue out a Commission of Array . But it is as true , that in the last Parliament of the same King Henry the 4 th . it was again declared as the undoubted Right of this Kingdom , not to be charged with ought , for Defence of the Realm , or Safeguard of the Seas , but by their own Will and Consent in Parliament .

By which we may learn how to interpret all the Precedents acted by the King , for his Array : and by how much the more is it true , that some Commissioners of Array have been confirmed by Parliament ? which is always needful to Confirm any such Array : Which yet is not proved ever to be Paralelld in any Parliament , for ought I can find .

For in all yet seen , there is no such boundless Authority , given to two or three Strangers , ( or others , ) to compel all Men but themselves , to provide and bear Arms , how , and when , and where it shall seem good to such Commissioners : Which at once seemeth to Dissolve all Laws of Liberty .

Which by the Mirrour with other old Lawyers , is chiefly placed in this ; not to be tyed to any Man , but by ones own Consent . In explaining of which they are Large , in shewing how the Tenures of the Crown were appointed for Defence of the Kingdom : and none tyed to Service , but according to this Tenure ; which was assessed by Common Consent .

And if such Commissions of Array , might be Legal from the King ; Escuage is so far from the worst or hardest Tenure , ( as it was commonly thought , ) that it would prove the best , and easiest in all the Kingdom .

For if the Escuage be uncertain by Tenure : None that hath read so much as Littleton , can be Ignorant , that by the Commom Law and Custom of the Kingdom ; it is not to be assessed by the King , or any other , but by Common assent in Parliament : which hath now done much to settle this also .

And if Certain , then is the King as really limited as the Tenant . So that the King cannot command or require his Tenant , but according to his Tenure expressed .

Not when he will : For it must only be in time of War , and this is not to be determined by the King , but by the Courts of Iustice . When they are open , as appeareth by all the Law-Books , in the Case of Roger Mortimer , Thomas Earl of Lancaster , and divers others .

Nor in all times of War , but only in a Voyage Royal ; to which Escuage is most properly tyed : and this must not be determined by the King ( who may be a Child , Sick , Incomposed , ) nor by his Marshal , or Constable , but by the Courts of Justice .

Nor in a Voyage Royal , as long as the King may please : But according to the Tenure ; usually forty Days for each Knights Fee ; and it hath been demurred in Law , when those forty Days should begin .

They are Littleton's own Words , and very Pregnant ; as if he thought that by Law , the King could have no Host , or Muster , but by Consent of the Commons : and he was as like to know our Laws , as most Men living now .

Nor is the Tenant to serve , but according to his Tenure in Gascoyn , Wales , Ireland , Scotland , to which Escuage proper , ( but rather from the Scute or Shield ; ) and the Books have divers Cases , where the King hath required Service , denyed by Limits in Tenures ; which the Courts of Iustice , especially Parliament , in all Ages did determine .

Nor is the King to determine how the Knights shall serve him ; whether in Person or not . For this is by Law , at the Tenants Choice . And if the Knight or his Proxy , will not attend , or stay out his Time : yet cannot the King proceed against him , but in a Court of Iustice , and not by Marshal Law : Yet the Marshal's Certificate is a Legal Evidence , that the Tenants did not appear in Service ; but his Reasons must be heard with all just Pleas.

Nor with what Arms or Horses , the Tenants may serve : all is expresly limited ; if the Tenure be certain : and if not Certain , it must ( as all Lawyers know , ) be assessed by Parliament ; which did also at first establish that , which now is Certain .

Nor would it be difficult for a mean Historian to shew how in all Ages , the Militia was as well disposed and managed , as it was Moulded by Common Consent , which is very considerable ; and the rather , because all that wrot for the Array , did most , or only run out in this ; That the King had the sole disposal of the Militia : not attending , that if this had been proved , ( which never was that I know ) yet this was only but half , and it may be the least half of the Question . For by that strange Commission of Array , the King did not only challenge the Right of Disposal , of the Legal Militia , already setled ; but also of Moulding and Making a new Militia , not yet made or ever thought of , that I could learn by any of our Ancestors .

If I were forced to enter the Lists , which I would avoid , as a Purgatory ; ( being otherwise , I say not better imployed , than in such unprofitable Wranglings , ) I should believe it not very difficult , much less impossible to maintain ; That both the Moulding and Manage , ( the Make and the Use ) of the Kingdoms Militia , was ever immediately subject to the Command of the Courts of Iustice ( especially the Parliaments , ) which may in a large Sense of Law , be called the Crown , or King's Politick Capacity ; but never I think to the King's Person alone , which in Law is still an Infant , as the Mirrour expresly calls him , though his common Capacity be ever of age . Be the Person a Child , an Infant , Lunatick , Incompos Mentis , or a Woman , which sure our Ancestors could not but deem a most unlikely Person for a wise and valiant General .

If I were compelled to argue this , it should not be only from right Reason , or the Law of Nature , which yet to me , seemeth much to encline this way .

The Feet are to bear , and the Hands to help , to hold , to bind , and rub the Head , ( in any Distemper or Weakness , ) but if I should hear of any Man born with his Heels in his Neck , or his Hands tyed to his Head , or immediately under his Chin , I should think it a Monster .

And wherever both Hands and Feet , are at their due Distance from the Head , with divers Nerves and other Vessels , Bones and other parts between them : yet I never heard or knew that they did obey the Head , till it did command itself , and them also by Reason ; or till it also doth Obey , not only its own Eyes and Ears , but the Common Sense and Reason of the Soul .

I must confess I have heard that Ticho-Brah , did sometimes imagine that he found Mars below , or under the Sun . But if it were really so , it seems as great a Prodigy in Nature as the new Star , and that of Mars , rather than a new Star in Cassiopeia , might presage those sad Commotions which have since followed in many Places of Europe , while Mars hath been so much below or under the Sun . For by Nature Mars was said , and ever thought to be placed immediately under Iupiter , the great Judg , or Court of Iustice ; which should command the Sword .

And so it doth by Law . For in England the Iudgments given in any Court of Record do so command the Militia for Execution ; for a Writ runs of Course , which was made by Common Consent , and cannot be denyed .

Release to all Actions , will not hold against Execution , except all Suits were also released : But this is such a Suit as the Law calls a Demand , which may not be denyed .

And for other Cases of Routs , Riots , unlawful Assemblies , Invasions , &c. The Posse Comitatus , and by Consequence the Posse Regni , was Disposed and Commanded by known , sworn Officers ; that acted Virtute Officii , by the Law and Custom of the Kingdom .

For it may be known that the old Iustices , or Conservators of the Peace , were chosen by the Counties ; as appeareth by Writs , yet to be read from the Rolls of Edward the First . And now their Commission and their Power dependeth on Parliament .

Nor could the Chancery have given such a Power , had it not been so Established by Parliament , which hath also strictly provided for their Legal Nomination and Election . For which the Statutes of Richard the Second , Henry the Fifth , Henry the Sixth ; and before them all , Edward the third thought it were not printed .

And it is very well known , how by the Common-Law and Custom of the Kingdom , all the Sheriffs do command the Posse Regni in their several Counties : and that not onely Execution of Writs , which may be thought to be Matters of Peace ; But the Lawyers know , that Sheriff is Custos Legis and Reipublicae , as well as of Peace ; of which he is the Principal Conservator in his Shire and County . Nor may it be Presumption to say , That all these Sheriffs also ought to be , and so were , chosen by the People , as is sufficiently found in Hoveden , and in the Laws of the Confessor . And in full Parliament of Edward the first , it was declared to be the Law and Custom of the Kingdom ; and therefore so setled in the Choice of the People .

There was in latter times some Alteration made in Choice of Sheriffs ; but it was by Parliament .

However , we all know , that Headboroughs , Constables , ( greater men than themselves know ) Coroners , and divers others , are yet still chosen in the Counties ; and do act by Custom and Common-Law . And the Sheriff also , however he be chosen , yet he stands not by Commission ; nor ought to fall with Kings death : But is a standing Officer , by Common-Law . Who may command all Lords , Knights , Gentlemen , and others in his County , by his Writ of Assistance . Which issueth of course to every Sheriff .

I need not say , how little the Kings Personal Command or Warrant , can by Law interrupt or hinder the Process of Sheriffs , Iustices , Constables , or others , in their legal course for the Publick Peace . Yea , insomuch that if I should have beaten a Drum , or raised Forces to rescue King Henry the Eighth from the Compter , for abusing a Petty Watch in a Night-walk ; I might have been arraigned for it .

And so I might have been , for refusing to fire the Beacons , or to have raised the Counties , if I had seen a Navie of French or Turks landing in King Iohn's time : Although the King had come to me and bid me quiet , because they were Friends , or such as he invited in for the good of his Kingdom . Which from his own Mouth , or under his hand , would have been no legal Supersedeas to a private man , in case of such Danger ; much less to a Sheriff , or other sworn Officer .

For in such cases of Apparent Danger , any man that is next , may esteem himself an Officer ; as , in quenching great Fires , or damming out the Sea . And in such , though the King himself should forbid me , or get me indicted ; I may demur , and put my self on the Judges of Law ; especially Parliament , the most proper Judges in such Causes . And to Lawyers I need not cite Records or Precedents .

Nor shall I need to adde , That in case of Foreign Invasion , or Intestine Motions , and Breaches of Publick Peace , the Common known Laws of the Land will warrant a Sheriff , Officer , or private man , to go over a Pale , an Hedge , a Ditch , or other Bound of a Shire or County . In which our Ancestors were not so ceremonious or superstitious , in case of hot Pursuit , or the like : Although they were punctual enough in keeping of Land-marks : And in Peace , in cases of real Actions , and personal Trials . They were very tender of those Marks , in special , that bounded out Shires or Counties .

The Original of Shires and Sheriffs , is generally fixed upon King Alfred . But the old Abbot of Crowland ( whence this arose ) seemeth to speak of new Names , rather than Things : for himself hath Provincias , Comites , Vice Domini ( though not Vice Comites ) of Ages before King Alfred . And the Monk of Malmsbury durst not follow Ingulph in this of Shires , as he doth in Hundreds ; which yet ( as Wapentakes ) were elder much , if we may credit Tacitus .

Old Ethelward , and the Author of both the Offa's ; with Huntingdon , among Historians ; and the Lawyers old Horn-book , the Mirrour ; do find or make Counties and Counts , before King Alfred . And we may go higher much , if we may trust to Alfreds Saxon Bede , now printed , with an old Saxon Chronologie , by Mr. Wheelock . In both which we read so much of Eorl , Eolderman , Shire-Alderman , and Bishops-shire ( besides Shire-born ) that is , his Parish : For this was the old Diocess , before the Novel Division of Parishes .

And before Alfred , as high as King Ina. His Laws , now extant , tell us of Shire-men that were Iudges also , ( as the old 〈…〉 nts and Shireeves ) and of Ealdermen that were to forfeit their Shires , if they let Thieves escape .

I might adde the old Writs of Assize in St. Edmund's time ; on which the great Judge buildeth ( in two or three Books of Reports ) for Sheriffs , Tryal by Twelve , and other things ; which might have other clearer Proofs .

If any would also assert such Division among the old Britains , he might have much from Nature , in Rivers or such Partitions , to most of our Shires ; besides the names in Cesar , Tacitus , Strabo , Ptolomy ; and besides that , which Virgil himself will admit of , Molmutius Laws ; assigning the Ways and Plows for every County , which is in others ; besides Monmouth or Virunnius : For Polydore addeth in this : which is to be marked ; besides St. Edward's Laws .

This Disgression may be the more tolerable , as that which maketh way to such Elections ; as we might assert in the Parliaments of those times also , were this the proper place .

But to return to the Militia . We have found it moulded by Common Consent ; and by it also committed to Shireeves and other Officers , known , sworn , and chosen by the People . We shall now step a little higher , that we may see how in elder times the great work of War , as well as Peace , was managed . And this also we shall find entrusted to a Common Council .

I do not deny , but the King himself hath sometimes been General of a great Army ; and that legally also : for it was by Consent of the People or Parliament .

So it was when the Romans came into this Island , Cassibelan was King and chief Commander in War : But it was by Consent of a great Common Council ; as Caesar himself observeth and reporteth : Summa belli Communi Coneilio , Cassibelano traditur .

Nor can it be wondered at , when their Druyds grand Maxime of State was this : Ne loqui de Republica , nisi per Coneilium . Not so much as to speak of a matter of State , but in or by a Council .

These were they that sent Caesar word , they had as good Bloud as lie ; and from the same Fountain : having been so long acquainted with Liberty , that they knew not the meaning of Tribute or Slavery .

The British Druyds moulded the Gauls : Cesar reporteth it , with the Brag of one of them , saying , That he could call or appeal to such a great Common Council , that all the World could not resist it .

But there were others also , besides Kings , chosen by the Britains to be Generals ; such as old Authors call Principes Militiae : a Phrase given to divers ; two I remember , Bolinus and Levisham ( as now he might be called ) in the time of Kimbolinus : acting by Common Council , as all may find that read those Histories . Which we may now assert , by better Authors than old Monmouth , though he be better also ; much better than Polydore or others would perswade us .

It was this great Council , with the King , that treated with and against the Romans in all times ; and that sought their aid at length against the Picts and Scots . And when the Romans could not attend the Britains Tears , it was this Council that called in their Neighbours first , and Friends the Britains from Armorica ; ( the Gaulish Britain ) and that before King Arthur's time : Of which so many Authors write , that Convocato Clero , and Primatibus Communi tandem assensu mittuntur in Armoricam Nuncii , &c. A Parliament clear enough ; yet not so clear ; as any man acquainted with those times , might prove beyond dispute . But I now must attend the Militia .

A Parliament it was that called in the Saxons ; not the King alone , but Parliament , of Lords and Commons also ; if ( besides the Crowd of all in the Road ) I be not deceived by the Saxon Chronologie ; and Gildas himself , ( whose very words almost are used by Monmouth and others ; ) and by the famous Nennius of Bangor , who yet liveth in Manuscript .

He is clear enough for divers things we doubt in British Stories : And for Parliaments also , before the Saxons setling here ; which was by Act of Parliament . Dum Conventa magna Synodus Clericorum & Laicorum , in uno consilio & cum majoribus natu Consilium fecerunt , & scrutati sunt quid facerent ; tandem Concilium omnibus fuit , ut pacem facerent : postea verò Conventum adduxerunt , ( here was a Covenant also by Parliament ) & Statutum est , ut amicitia firma adjuvicemesset , &c. Thus Nennius , after his escape from the Massacre at Bangor .

Come we now to the Saxons , setled here by Parliament . In this they may seem more considerable , that by most they are made the Patrons of Chivalry , or Tenures by Knights-service : for it is now believ'd by no Lawyer or Historian , ( that I know ) that this came in with the Normans ; although it was so thought by some .

I have somewhat to say in due place , why it might look higher than the Saxons ; yet I must yield , it had been but little room among the Britains of Gavel-kind . Of which , the Parliament in Henry the Eighth ; and more hereafter : besides all the Comments upon the Statute ( or rather the Writ ) de Militibus .

None doubt but Tacitus speaketh of our Saxon Ancestors ( or rather theirs ) in that , in their chosing Kings and Generals , ( Reges ex nobilitate , Duces ex virtute ) by Common Council , in iisdem conciliis , Eliguntur & Principes , de Minoribus Principes , de Majoribus , omnes consultant . And that such Council did both mould and manage the Militia , is plain enough in the same Author : Who besides all matters of History , telleth us their general Custom was ; Not to entrust any man with bearing Arms , antequam Civitas suffecturum probaverit , till some Common Council , more or less , had approved him . For so , I may translate it to all that know , how much Vrbs and Civitas do differ .

The Tract of Parliaments is visible enough in all the Saxon Writings here . I should be tedious in citing but one quarter of that which their Laws ( yet to be found , and very good Authors ) do afford in this .

Some have much wondred at a Passage now found in the Confessors Laws . It is about Titles ; which he saith , were preached by Austin , and granted by the King ( then reigning ) and the Barons , and common People : Concessa sunt à Rege , Baronibus , & Populo . A very full and clear Parliament .

We need not suspect or doubt it : for in those very times there were such Parliaments , and such degrees . Nay , Caesar himself found such degrees among the Britains ; a King and Druyds , ( which were as Bishops and Archbishops , as we may clear anon ) Dukes and Nobles , besides the Commons : So civil was our British Ancestors . Of whom , much more ere long .

And for the very first times of Christian Religion ( which was much higher than Austin the Father , who might have been great Grandfather to Austin the Monk ) King Alfred's own Laws acknowledge , that in this Island the Laws were then made by a Common Council of Bishops and other Wise men , or elder men of the Wytan .

Old Bede seemeth plain enough for this , in several places ; Servabant Reges , Sacerdotes , Privati ( Were the Commons before the Lords ? ) & Optimates , suum quique Ordinem .

And of the Saxons , called in by Common Council , Initum est Concilium , quid agendum , &c. placuitque omnibus , cum suo Rege Vortigorno , ut Saxonum gentem in auxilium vocarent .

And of Ethelbert ( King of all the South to the River Humber ; ) Among other good works ( saith he ) quae consulendo conferebat , etiam decreta Iudiciorum juxta exempla Romanorum , Concilio Sapientiunt constituit .

And among other Laws of his ( in the same Bede ) that is one , in special , for Priviledge , Ecclesiae , Episcopi , & Reliquorum ordinum .

That this might also extend to the great Priviledge of Parliaments , I could the rather believe , from the Laws of the said King Ethelbert , yet to be found in the old book of Rochester ( Textus Roffensis ) of which , Sir Henry Spelman ; unto whom we owe so much for all Antiquities . Where , after provision for the things of God and the Church , ( to which St. Edward's Laws allude ) the next Act is for Priviledge of Parliament , it seems ; being for the punishing and sore fining of those that should do any damage , Gif Kyning his Leode to him gehateth , &c.

And in the old Chronicle of Canterbury , we read of this King Ethelbert being at Canterbury with his Queen and Son , and the Archbishop Austin ; Caeterisque Optimatibus , convocato ibidem Communi Concilio tam Cleri , quàm Populi : With divers other proofs for Parliaments in Charters to that Church , in print . And Spot deserves as much .

One thing I must not omit , that Bede ( observing how Religion was preached both to the King and to the Counts , omnibus Comitibus ) saith , there was a License granted for publick Preaching ; but when the King and divers great men were converted and baptized , yet there was no force used to compel others to be of that Religion : because ( he saith ) they were taught , that Christs service must be voluntary , and not forced . But the Mirrour telleth us , the King was bound to compel men to Salvation . O happy men ! or unhappy King !

But the Britains would not be forced from their Rites by Austin the Monk , Absque suae gentis , & imprimis Senatorum suffragio : as a learned man translates King Alfred's Saxon Bede . Which is also very clear in several places , for setling of Christian Religion , ( when it was freely chosen ) with destruction of Pagan Idolatry : with Lent , and other things , confirmed by divers Acts of Parliament in time of Ercombert and King Edwin ; Mid his Witum , & mid his Ealdormanum .

So is the old Book of Peterburgh , for a Parliament or Heatfield . With which we may compare somewhat in Ingulph , and more in Bede , Ethelward , and Huntingdon , about the Parliaments which received and consirmed the General Councils ; and that which established the Division of Parishes , and Patronage of Churches . Of which , Stow , and the Antiquities of Canterbury ; but especially a Manuscript in Camdridge , cited by Mr. Wheelock on the fourth or fifth of Bede .

I should not digress to Sigesberts founding the Vniversity of Cambridge , had not King Alfred himself in this , added good Notes to Bede . By which we may see whence he learned what so many say he did to Oxford , the younger Sister : For which Polydore is plain enough ; besides so many better elder Authors . It is also considerable , that King Alfred calleth Cambridge ( or Grantacestre ) a City ; which Bede would make a Civitatula . How little it might then be made by the Danes or others , I know not : But in old Nennius of the British Cities , I find Cair Granth next before Cair Londen . And Sir Simon d' Ewes affirmeth it to be ranked before London , in Gildas Albarius , and an old Saxon Anonymus ; besides that of the old ( but not the oldest ) book of Doomsday .

Nor must I omit the Records of Richard the First , for the Customs of the City of Cambridge , found by a Jury in an Assize of Darrein Presentment for the Church of St. Peters in Cambridge . Of which , the great Judge in his Reports or Commentaries

To which I might adde what the Saxon Chronology speaketh of Grante Briege , at the year 875 , and 921 ; where we also find an ancient Military Sacrament , or great Oath of Fealty : more to be marked , than may seem at first view .

Come we to the Saxon Laws , extant in print . They begin with King Ina ; whom some will have to be a Britain . But in the Confessors Acts , he is stiled Optimus Rex Anglorum , qui electus fuit in Regem per Angelum , & qui primum obtinuit Monarchum Totius Regni hujus , post adventum Angliorum : And that himself and others of his People , matched with the Britains . But per Communae Concilium & assensum omnium Episcoporum , & Principum , Comitum , & omnium Sapientum , Seniorum & Populorum totius Regni .

Not onely a clear proof for Parliaments in King Ina's time , but a good Comment on his Laws in print : Providing about Matches , Dowries , and Women's Thirds ; and all by Parliament : as the Proem it self expresses : beside King Edward's Laws .

And for the Saxon Militia , ( a Phrase used by Bede himself ; Nam egressi contra Gevissorum gentem , omnes pariter cum suà Militia corruerunt : ) King Ina's Laws afford us divers Acts of Parliament , providing against Thieves , Riots , Routs , and all unlawful Assemblies , in several degrees and branches : As also for Officers of the Militia ( to be ready on a great Fine ) to march upon all just occasions . With which we may compare Mr. Lambert's Custos Paganus , Sithecundman : which some would have to be the Father to our Side-men . See Whithred's Military Dooms .

Egbert is by all esteemed a great , if not the first Monarch of the Saxons ; a great Warriour ; and a Conquerour : But yet he neither made or managed the Militia , without a great Common Council or Parliament .

For which , besides all others , we have a clear proof in the old Abbot of Croyland ; to which there was a great Charter confirmed , Coram Pontificibus , & Proceribus , Majoribus totius Angliae : which were all together at London , consulting how to provide against the Danish Pirates : Pro Concilio capiendo , contra Danicos Piratas , &c.

That also Majores in this place , might denote some lower than Earls or Lords , may not onely be gathered from the Subscriptions to that Charter , but from Bede , or other old Authors that use the Phrase Majores , of such Officers or Magistrates as Mayors in Cities now seem to be . Of which , I might give divers Examples .

It is worth observing , how in these Danish storms , all Historians make the Counts , or great Shireeves , to be Generals or Commanders of the Militia . And of these , I know none more famous than Dorsetshire Reeve Ethelhem , in the great Battel of Hampton , or in that about Port ( of which so many write ) at the Danes first landing thereabouts .

Danigeld is scarce so ancient : Yet this also was granted for provision against Danish Pirates ; as St. Edward's Laws affirm . Who first remitted this Tax ( but it came up again ) about forty years after it had been diverted from its first institution ; and paid as Tribute to the Danes . But this was also by Parliament . Of which , Ingulph and Hoveden , with all about Etheldred and Edward .

I must not digress to the Parliament of Winchester , ( in King Egbert's Sons ) in which Tenths of Lands ( as other Tythes ) were confirmed for Church-Glebe . Of which the Saxon Chronologie , with Ethelward , Hoveden , the Abbot of Croyland , the Monk of Malmsbury , and Matthew of Westminster , with divers others , before Polydore . To which we may adde King Edgar's Oration to St. Dunstan ; which is known enough . As also the Wednesday Masses , one for the King , and the other pro Ducibus , &c. Consentientibus : The Charter being subscribed by the King , Archbishops , Dukes , Earls , and Procerum totius Terrae , Aliorumque fidelium infinita Multitudine .

I should not omit the Parliaments confirming Rome-Scot ; much mistaken by divers . It was granted by King Ina , then by Offa , and again , by King Ethelwoolf ; not to the Pope , ( as it is generally thought ) but to the English School , or Alms-house for Pilgrims at Rome . Yet it was called Peter-pence , because fixed on Peters-day : A famous day in our Law , as may appear by the second of Westminster , and other Parliaments .

But it might be called Peter-pence from King Ina , whom ( at his Baptism in Rome ) the Pope name Peter ; as the Saxon Chronicles ; others . Or there might be as much reason for Peter-pence , as there was for Peterburg ( which was Medhamsted ; ) but Vows might be performed or absolved here , as well as at St. Peter's Threshold in Rome : And hence the name of Peterburg .

But of Peter-pence , before Polydore , we read in much older Historians ; especially the Author of King Offa's Life , now printed with Matthew Paris : Beside the Laws of King Edgar , Canutus , Edmund , and the Confessor ; where it is called Eleemosynae Regis : But in the Saxon Chronology , 't is Kynninges and West Seaxena Almessan : And in King Alfred's Life , ( by Asser Menevensis ) Eleemosynae Regis , and Anglo-Saxonum : Being confirmed by common Assent , or Parliament .

I must omit the Parliament at Kingsbury ; where among other divers matters , a great Charter was confirmed to Crowland : Vnanimi Consensu totius Concilii , pro Regni Negotiis Congregati : Subscribed by the King of Mercia , Archbishops , Bishops , Earls , &c. And among others , by Off●at , who was Pincerna Regis Ethelwoolphi , & Legatus Ipsius , & filiorum , Nomine Illorum , & Omnium West-Saxonum ; as we are told by the old Abbot , who knew it well .

I might pass over King Alfred's Parliaments : so the famous in all Historians and Lawyers . But in none I know clearer , than in the old Mirrour . Of which , before , for Alfred and his Parliaments , twice every year in London . With which we may compare one passage in the Confessors Laws , touching this great and old City . But of this , hereafter .

This was the learned King , who perused all the old Trojan , Grecian , British , Molmutian , Mercian , Danish , and Saxon Laws ; especially those of Ina , Offa , and King Ethelbert : Cum consulto Sapientum , partim innovanda curavit , as himself speaketh . And his Laws were established by Parliaments , by his Witan , or Witena : Atque eis omnibus placuit , edici eorum Observatione ; As learned Lambert translateth the Saxon.

But I may not omit King Alfred's Doomsday-book , made by such Common Council , the great Roll of Winchester ; which was again renewed by the Confessor , and then again by King William the First ; and then also called the Roll of Winchester , and Doomsday , as before . Of which , old Ingulph , with Natura Brevium .

Yet it seemeth , that before King Alfred's time , there was such a Doom-book made by Ethelwoolf ( at the time of the Church-Glebe ; ) of which Book , the Saxon Chronology , at the year 854. But this might rather be a Land-book ( whence the Phrase of Booeland . ) See King Alfred's Will , annexed to Asser. But we also find an ancient Doom-book for their Laws and matters Iudicial .

Of which Doom-book we read in several places of the Laws of Edward the Senior ; strictly charging all the Judges and Magistrates to be just and equitable : Nec quicquam formident , quin jus Communae audacter , libereque dicant : according to the Doom-book . And again , in Edgar's Laws , we find the Doom-book for Tythes , and the famous Kyricseat .

These succeeded King Alfred . But long before his time , among the Dooms of Withred , made about the year 697. by the King and Bishops , Cum caeteris Ordinibus , and Military-men ( or Milites ) at Berghamsted ; a Fine is set upon a Commander found in Adultery , Spretta Sententia Regis , Episcopi , & Boec●-Doom .

I could believe King Ethelbert's Parliaments were Authors to this Doom-book . Of which , the Roll of Rochester , tha Doomas dhe Athelbirth Cyning ; with Rihtra Dooma ( in the fore-cited place of Ethelbert ) in the Saxon Bede of King Alfred .

How severe his Dooms were to the Counts , old Shireeves and Iudges , we find in Asser : more in Horn , and his Kirk-dooms in his Laws ; which do also speak of Kiric-Ealdor , a Church-Elder .

But again to the Saxon Militia . In Alfred's time there was a League made with the Danes : Then the Title was , Foedus quod Aluredus & Guthrunus Regis ferierunt , ex Sapientum Anglorum consulto ▪ confirmed by Act of Parliament . And the Saxon Chronologer addeth , That the Dane swore to the Peace , and promised to be baptized ; as he also was , and King Alfred was his Godfather , naming him Ethelstane . Some adde , a Daughter of King Alfred's for his Wife : which may be worth enquiring , more than now may seem .

The Articles of this League were again renewed and enlarged by Parliament , in Edward the Elder : A Sapientibus recitata sapius , atque ad Communem Regni Vtilitatem , Aucta atque Amplificata . In the Preface to those Statutes .

In this Edward's Reign , there was an Insurrection ; and Ethelwald seized on Winborn , &c. whose Charge and Crimes was this : That he did such an Act , without permission of the King and Parliament ; but an tdes Kynings , leafe ac his Witena . So the Saxon. And Malmsbury addeth , That à Proceribus in Exilium trusus , Piratus adduxerat .

But the King summons a Parliament at Exon ; and there , Mid his Witan , consulted how the Kingdoms Peace might be restored and preserved : Orabat vehementer , & obtestabatur , ( such was his Mean to the Parliament ) hoc unum Curent , ne quem injurià afficiant : Beseeching them mainly to mind this , That they wronged none . A most pious Christian Motion ! And our Monthly County-Courts are as old as this Parliament at Exon. The Acts are printed . But I must not digress to their Ordeals , appointed there for Perjury .

In this Kings Reign the Pope sent his Bull to excommunicate the King and all his Subjects : For that , Per 7 annos destituta fuerat Episcopis , omnis Regio Gavisorum , id est , West-Saxonum . Whereupon the King summoned a Parliament ; Convocavit Synodum Senatorum Gentis Anglorum : As saith the Monk of Malmsbury . Et Eligerunt & constituerunt Singulos Episcopos , Singulis Provinciis Gavisorum : ( For the Bishops Shire used to be equal to the Earls , or the Ealdormens Shire , with whom he sate in Folkmoote . ) Et quod Olim duo habuerunt , in quinque diviserunt .

King Ethelstane came next . He was the first of all the English Kings that ruled over all the Island , conquering Wales , and regaining Scotland : Which being subject to England , as a Dukedom thereof , was advanced to a Politick and Royal Kingdom : As the learned Fortescue doth plainly affirm . And for this , against all that Buchanan writeth , I need onely refer to the Authors and Records cited by the great Master of Antiquities , with other Learning , Mr. Selden , in his short but pithy Notes on it , with Hengham : To which we may adde somewhat in Polydore , and the Saxon Chronology , from the year 934 ; but especially from Oswald's Laws , and others of the famous Edgar , vouching Ethelstane for Scotland . Of which we read in many places , beside the fourth Part of the great Reports . But that victorious Monarch suffered the Scot to reign under him , saying , That it was more glorious to make a King , than to be a King . A pious Prince , to whom we owe for translating the Bible from Hebrew ; which some think he did by some Converted Jews .

Among his Laws , now extant , we find divers enacted in Celebri Gratanleano Concilio ; where there were Archiep. Optimates , & Sapientes , ab Ethelstano vocati frequentissimi .

And again at Exon , we find him Mid his Wytan ; and their Wergylds for the King , Archbishop , Eorles , Bishops , Ealdermen , and other Degrees , may suffice to prove them to be Acts of Parliament .

With those several Degrees there mentioned , we may compare the Laws of King Edgar and Canute in divers places , one of the Ranks of their Nobility , as a General or great Commander in Wars ; which may be observed for the Militia .

Edmund succeeded ; and at London holds a Parliament of Clergy and Laity ; ( ge Godcundra , ge Worulcundra : ) And again , Mid Witena getheahte gegodra hada gelewedra . And to the Parliament he giveth solemn Thanks for their Aid in setling the Kingdoms Peace . His Laws are printed . And we omit his Charter to the Church of Glastonbury , which was made , cum Concilio & Consensu Optimatum , as we read in Malmsbury .

But I must not omit that Parliament of his , recorded in the Mirrour ; where we find a kind of Appeal , or a legal Accusation of Treason brought by Roceline against Walligrat , in full Parliament , in the time of King Edmund .

In King Edred's Reign there was a Parliament solemnly summoned by Writ , as we read at large in the Abbot of Crowland . To which there was then a great Charter confirmed , being drawn or dictated by Turketulus , then Abbot , but he had been Lord Chancellor . And the date is , in Festo Nat' B. Mariae , cum Vniversi Magnates Regni , per Regis Edictum summoniti ; tam Archiepiscopi , & Episcopi , ac Abbates , quam Caeteri totius Regni Proceres , & Optimates , Londoniis Convenissent ; ad tractandum de Negotiis Publicis totius Regni , in Communi Concilio .

Edgar was a great Monarch , and as great a Conqueror by Sea , as Ethelstane by Land : It might be easier to shew his four Seas , of which so many speak , than to set their exact bounds . Yet it may not be unworthy of our thoughts , to consider , how our Ancestors did often divide the Office of their Admirals , usually as Nature hath parted our Seas ; as thinking it indeed too great an honour and a burthen , for a Subject to be Admiral of all the Seas of such an Island . But the late Cardinal of France did wisely ( it was thought ) dispose , or rather retain , that Office , as the best Jewel of that Kingdom ; which yet by Sea might yield to this .

But I must not digress , nor can I determine the bounds of Edgar's Conquest , to the North ( they say , to Norway ) or the West . Of which , some speak , as if they would but give us hints for farther search and Queries .

I dare not affirm , that in those days our Saxon or British Ancestors did know America . But if we may credit any Records besides the Scriptures , I believe or know it might be said and proved well , that this new World was known , and partly inhabited by Britains or by Saxons from this Island , three or four hundred years before the Spaniards coming thither .

Nay , the more I consider the Discourses which did pass between the Spaniards and the Mexicans , the more I could believe the King himself of Mexico might possibly descend from those that went from hence to Florida , or rather Mexico : So that we need not wonder at the British Words , or Beads , the Crucifix , or other Reliques , which the Spaniards found at their Arrival . And for this , besides so many other Authors , we have much among the British Annals .

Those in special left by Caradoc of Lancarvan , or from him , continued by the Beirdhs of Conwey and Stratford ; gathered and translated by the learned Llhoyd . To which we may adde what Doctor Powell hath of this out of Records , and best approved British Authors , in the Life of Owen Gwyned , or David , and Madoe , his Sons , about the Reign of King Stephen .

To which , at least for that which concerneth Hanno , or the old Navigations ( with Plato's Atlantis , or what else appeareth in Aristotle , Theophrastus , Virgil , Seneca , with others ) it may not be amiss to compare two late and very learned French Authors of Peleg , and orbis maritimus ; very worthy ( I think ) of good perusal .

But to return to Edgar's Parliaments : How that great Council did often dispose the King himself , we must discourse in a fitter place . We shall now but observe , that good Historians tell us , that King Edgar , by the Council of the Kingdom , did repeal the Acts of Edwin , both his brother and predecessor , Convocato ad Brandanfordeam Regni Concilio , fratris Edwini Acta & decreta rescindit . And the famous Oswald's Law was signed by this King , Cum consensu , Concilio , & astipulatione , Archiepiscoporum , Principium , & Magnatum . It is printed , and found in ancient Authors .

King Edgar's Charter to Glastonbury ( reciting the Acts of so many Kings before him ) was confirmed , Generali assensu Pontificum , Abbatum , & Optimatum : If we may believe the old Monk . And the Charter is to be read at large : Archiepiscopis adhortantibus , consentiente etiam & annuente Brithelmo Fontanensi Episcopo , caeterisque Episcopis , Abbatibus , & Primatibus . And the Close is , Acta haec , & confirmata , apud Londonium , Communi Concilio , omnium Primatum meorum , &c. I should be unjust to our Laws , if I should omit the Process and Plea of Morgan Hen , against Howell Dha , the good Prince of Wales . Upon complaint , they were both summoned by King Edgar , Ad curiam suam ; and their Pleas were pacately heard , In Pleno Concilio , & repertum est , justo Iudicio curiae Regis , quod Howell Dha nequiter egisset extra Morgan Hen , & filium sui Huwen , & depulsus est Howell Dha ab his duabus Terris ( the Lands then in question ) sine recuperatione ; & Postea Rex Edgarus dedit & concessit , Hueno Morgan Hen , illas duas Terras , ( Istradum & Euwias ) in Episcopatu Landas constituas , sicuti suam Propriam Hereditatem , & illas easdem duas Terras sibi & Heredibus suis ; Per chartam suam sine Calumpnia alicujus Terreni hominis confirmavit , communi nostro assensu , & testimonio omnium Archiepiscoporum , Episcop. Abbatum , Comitum , & Baronum totius Angliae & Walliae ; factum est coram Rege Edgaro , in pleno concilio , &c.

This Record of King Edgar , is in Codicae Landavensi , fol. 103. I find it cited by the great Antiquary Sir Henry Spelman : and it may be compared with the Monk of Malmsbury , and Matthew of Westminster .

I must not relate the Visions or Predictions of the Fates of this Kingdom , which Historians record about the Reign of King Edgar ; they are in print , and may be read of all : Besides the Prophecies of both the Merlins ; for the Scottish Merlin was fuller and plainer than the British in Vortigers time : That I say nothing of Cadwalladers Vision , or Alans Council ( which was long before the other Alane wrote on Merlin ) or of the famous Eagle of Shaftsbury , that agreed with others in the Britains recovering their Kingdom again , after their grand Visit at Rome , whence they must bring Cadwalladers bones .

This leadeth me also to the Sybils Prophecy of three British Princes that should conquer Rome . Brennus was one ; King Arthur some make the second ; Et quis fuit alter ? And of these Sybils , or one of them , sending a book to King Bladud , ( so famous for the Bath , and Greek-Schools , or University at Stamford ) the Scotish Merlin seemeth to have written , if among others I mistake not Baleus .

But of Edgar's Parliaments , one was at Salisbury ; so we read in Chaucer , or the old Fructus Temporum , by Iulian Notary at St. Albans . And of another of his Parliaments at Bath ; the Saxon Chronology , at the year 973.

His Laws are now printed ; and their Title is , The Acts of King Edgar and his Parliament : Mid his Witena , Getheate gerred , &c.

Here we find much considerable of Thanes ; which all will have to be Noble-men : but it must be with them a Saxon word . And Dhenian is to serve : whence the Princes Motto , Ic Dhaen . ( For so it should rather be , than in Dutch , Ich Dien . ) But why should Noble-men , or those that were the freest , have their name from serving ? Here they flie to Knights-service , King-service , or I know not what ; most proper , as they say , to free and Noble-men .

But from a Judge , or Fleta , we may be taught , that the Saxon Dhaen or Thaen , is a Servant ; but Thayn , a Free-man . And in this sence it seemeth to be used here . As also in Denmark , and Ireland . Nor did the Britains differ much ; whose Haene or Hane , is an Eldar : ( although Hyne be sometimes used for a Servant . ) And so the Irish Tane is Elder ; whence their Tanistry or Eldership : ( the cause or sad occasion of such bloudshed . ) These British Hanes , the Saxons in compliance , called Ealdermen : ( St. Edward's Laws afford so much ) and it may be Thanes ; although with them they had the name of Greeues or Graves , suiting well with Elders , Hanes , or Senators . With which we may compare the Phrase of Seniores , which we read so oft in Gildas , Nennius , Monmouth , and others of the British and first Saxons times in Britain .

I should be tedious in but glancing over the Acts of Parliament in Edgar's time . That of the Standard at Winchester is considerable ; and that of one Coyn through all the Kingdom . The Mirrour is plain in making it an Act of Parliament , in Saxon times , That no King of this Realm , should change his Money , or embase , or enhanse it , or make other but of silver , Sans l' assent de tout ses Counties . Which the Translator is bold to turn , Without the Assent of the Lords and all the Commons .

We may not omit the Act against unjust Judges , or Complaints to the King , except Justice could not be had at home . For which also , the Hundred-Courts were again confirmed , and the Grand Folkmootes , or Sheriffs Turnes , established by Act of Parliament . Of which and of their relation to Peace and War , more in Edward's Laws ; which may afford a Comment for the Saxon Militia .

I need not speak of the Parliament at Calna ; it is famous enough ; where , Considentibus totius Angliae Senatoribus , the Roof fell down , and hurt them most , but St. Dunston . Of which , Wigornensis , Iornalensis , Malmsbury , Matthew of Westminster , and so many others may be cited .

King Ethelred's Laws have this Title in Lumbard : Sapientum Concilium quod Ethelredus Rex , promovendae pacis causa , habuit Wodstoci Merciae , quae legibus Anglorum gubernatur : aefter Aengla-Lage , Post Anglis Lagam ▪ as an old Author turneth it .

In those Acts , we read of Ordale Sythan the Gemot waes aet Bromdune ; Post Bromdune Concilium : It seems a Parliament .

And again , Iussum ac scitum hoc nostrum , si quis neglexerit , aut profuâ quisque virili parte non obierit , ex nostra omnium sententiâ Regi 100 Dependito . By which it appeareth to be a Parliament , and not the King only that made those Laws .

That which Sir Henry Spelman calleth , Concilium AE 〈…〉 e Generale ▪ was clearly one of King Ethelred's Parliaments : and the very Title is , De Witena Ge●ednessan , and tha Geraednessa the Englaraed Witan gee 〈…〉 &c. And divers Chapters begin , Witena Geraednesse is , enacted by Parliament .

And the old Latin Copy of this Parliament , telleth us , that in it were , Vniversi Anglorum Optimates Ethelredi Regis Edicto , & convocato Plebis multitudine collectae Regis Edicto . A Writ of Summons to all the Lords , and for choice of the Commons ▪ a full and clear Parliament .

In this Parliament were divers Acts for the Militia , both by Land and Sea ; ( as most Parliaments after King Edgar : ) and among others , for Castles , Forts , Cities , Bridges , and time of the Fleets setting out to Sea . It is made Treason for any to destroy a Ship that was provided for the State-service : Navem in Reipublicae expeditionem designatam : as a learned man translateth the Saxon.

And no Souldier must depart without leave , on forfeit of all his Estate . None may oppose the Laws , but his Head , or a grievous Mulct ( according to the Offences quality ) must recompence .

It was here also enacted , That Efferatur consilium quod Populo habeatur utilissimum . And again , In rem totius Patriae . And that each should do , as he would be done to : Which it calleth , the Most right Law ▪ And that the higher and greater men the Delinquents were , by so much the more and heavier they should be punished . Of which , and of their Wergylds , for all Ranks of men .

Again , Iniqua omnia , & injusta , quae Rex unâ cum Optimatibus , exterminare decreverit , abjiciantur , &c.

That about this time , Danegeld came to be paid to the Danes , ( which was before against them ) is agreed by all . Malmsbury is bold to ascribe it to a Decree of the Archbishop of Canterbury ; but Huntingdon may be his Comment , telling us , That Consilio infausti Siricii Archiepiscopi , Edelredi 13. primum Statuerunt Angli , quod ipsi Censum Dacis persolverent . A clear Act of Parliament . Of which also , Florence of Wygorn .

And again , Anno 1007. Rex & Senatus Anglorum Dubii quid agerent , quid omitterent , communi deliberatione , gravem Conventionem cum exercite fecerunt ; & ad pacis observationem 30000 l. ei dederunt , &c. This also from Huntingdon .

And among the Saxon Laws , we read , Foedus quod Ethelredus cum exercitu Anlavi , &c. ex Sapientum suorum Consilio feriit . And again , Pacis foedus Ethelredo Regi , & omni Populo , Leodsayre . And again , Socii ac foederati nostri , omnes per Mare & Terras , in Portu , & extra , pace fruuntor . With divers other Passages of Peace and War , setled by that Parliament .

Iornalensis addeth another Parliament in this King's time : Apud habam , & Constituerunt omnes , ut Regi suo pareant , sicut Antecessores sui melius fecerunt , & cum eo Pariter , defendant Regnum , &c. & ut cantetur quotidie pro Rege , Communiter & omni Populo suo . And again , Prohibemus omnem Roboriam , &c. & omnis Index Iustus Misericordiam & Iudicium liberet in omnibus ; timeat omnis Iudex , ac diligat Iudicem suum , ne in die Iudicii mutus fiat , humiliatus , &c.

Nor may I forget the famous Judgment for the Bishop of Winchester , by the Thanes and Ealdormen , in the Witenagemote ( or Parliament ) of Eldred : Quo dum Duces , Principes , Satrapae , Rhetores , & Causidici , ex omni parte confluxerant . Of which , the old Book of Ely , cited by Mr. Selden in his Titles of Honour .

And for the Militia , Roger Hoveden is very clear and full , at the Danish Irruptions : Qua recognità , Rex Anglorum Egelredus ( his names are many ) suorum Primatum consilio , & classem , & Pedestrem congregavit exercitum . And again , Habito Concilio cum Regni suis Primatibus , utile Duxit à Danis dextras accipere , stipendium dare , & placabile tributum solvere . And again , Primatum suorum Concilio , nummos ad Danos , &c. And again , Rex & Regni sui Primates , ad illos ( Danos ) miserunt Legatos , pacem ab iis petentes ; stipendium & tributum eis Promittentes .

So is old Florence of Worcester : Consilio Iussuque Regis Anglorum Aethelredi , procerumque suorum , de tota Angliae robustiores , Lundoniae , congregatae sunt naves . And again , Procerum suorum consilio , ad eos ( Danos ) Legatos misit , promittens tributum & stipendium . And again , Omnes Angliae Primates utriusque Ordinis ante Pascha Lundoniae congregati sunt , & ibi tamdiu morati sunt , quousque tributum Danis Promissum , quod erat 48000 l Persolveretur . And again , Cum apud Oxonefordam magnum haberetur placitum &c. eodem tempore Canutus cum magna classe , &c. Eadmundus Clito magnum congregavit exercitum , &c.

So is Matthew of Westminster ; adding much to those before him , and ascribing that bloudy Council of the Danish Massacre to one Huna , Princeps Militiae , qui sub Rege , Regni negotia dispondenda susceperat ; cujus consilio , misit litteras Rex in omnes Regni fines , Mandans nationibus singulis & universis , &c. Of which , St. Edward's Laws . But Oxoniense placitum , is in Florilegus : Magnum apud Oxoniam colloquium Anglorum pariter & Danorum . And so the old Glossary of Canterbury tenders Gemot by Placitum ; and Fologemot , by Populi Placita . So also , Law-Mootes , are Placita : Magnum placitum ; the great Folo-mout , or Parliament ; as Comitatus placita , with Matth. Paris , County-Courts : parva placita , Oxford Parvises .

I must not stay long on the Acts of Parliament which Angles Kynnes Witena made and established , Cum Walliae Consiliariis de Monticolis : Where , among other things , we find it enacted , That Viri duo denijure consulti , Angli sex , Wallique totidem , Anglis ac Wallis jus dicunto . With which we might compare our Laws , de Medietate Linguae , &c.

But for our Trials by a Jury of Twelve , we have a much clearer Law in another Parliament of Ethelred ; Frequenti apud Wanalingum Senatu . Of which , Iornalenfis , and Mr. Lambards Glossary . In singulis Centuriis Comitia sunto , atque Liberae conditionis viri duodeni , aetate Superiores , una cum praeposito , sacra Tenentes Iurante , se adeo virum aliquem Innocentem haud Damnaturos Sontemve absoluturos . An old MSS. thus : Habeantur placita in Singulis Wapentakis , ut exeant Seniores XII . Thani , & praepositus cum eis , & Iurent super Sanctuarium , quod eis dabitur in Manus , quod Neminem Innocentem velint accusare , vel Noxium Concelare . But of more ancient Tryals by Twelve , in fitter place : although I must not spend time to confute the Italian , who will have that terrible Custom ( as he thought ) brought in by the Conqueror .

The Proofs of Parliaments in Canutes time , are so many , and so full , that they tire us altogether . How he confirmed the Laws of Ethelred and other Predecessors , we read in the Monk of Malmsbury , who recordeth also his remarkable Letter from Rome , directed to the Archbishops , Bishops , &c. Primatibus , & Toti Genti Anglorum , tam Nobilibus quam Plebeis . As also his Charter to Glastonbury : Cum Concilio & Decreto Archipresulis Edelnothi , simulque Cunctorum Dei Sacerdotum , & Consensu Optimatum . Hoveden in full , in this also . Cujus ( Edmundi ) post Mortem , Rex Canutus omnes Episcopos , & Duces , necnon & Principes cunctosque Optimates Gentis Angliae , Lundoniae Congregari Iussit . A clear Summons of Parliament .

And the very name of Parliament , is found of his time , in the old book of Edmunds-bury : Rex Canutus anno Regni quinto , &c. Cunctos Regni sui Praelatos , Proceresque , ac Magnates , ad suum convocans Parliamentum . And again , In suo Publico Parliamento . And that it was indeed a full Parliament , we may believe from the persons we find there at the Charter of that Monastery , confirmed by Hardi-Canute ; but granted by Canute , in suo Publico Parliamento , praesistentibus personaliter in eodem Archiepiscop . Episcopis , Suffragenis , Ducibus , Comitibus , Abbatibus , cum quam plurimis gregariis Militibus , ( Knights of Shires , it seems ) & cum Populi Multitudine Copiosâ ( other Commons also ) omnibus tum in eodem Parliamento personaliter Existentibus . And the Title of these Acts is , Statutae Canuti , Regis Angl. Dan. Norw . venerando Sapientum ejus Concilio , ad Laudem & Gloriam Dei , & sui Regalitatem , ( Reipub. Utilitatem ) & Commune Commodum , habita in S. Nat. D. apud Winton , &c.

This I find also cited by the great Judge in one part of his Reports ; but fuller , by Sir Henry Spelman .

It would be tedious and superfluous , to cite the Authors that assert , he did confirm King Edgar's Laws in full Parliament . For which we might produce some better , or at least much older , than good Bale , or Grafton .

Many of his Acts of Parliament are printed : Consultum quod Canut . Angl. Dan. Norw . Rex Sapientum Concilio Wintoniae Sancivit . Here Allegiance or Fealty setled by Parliament , and afterwards , Praecipimus uniuscujusque Ordinis singuli , Muneris atque Officii sui Religionem Diligenter , cauteque teneant . And among other Encouragements to Chastity , this is one , That such chast men of God should enjoy the same Rights or Priviledges with Thanes : ( and Ethelstane's Laws do equal Priests with Thanes ) But there are two or three degrees of Thanes in these Laws about the Hereots : for the Eorles and Thanes , &c. much to be marked , as pertaining to the Militia . For which , and for all Canutes Laws , the old MSS. Huntingdon , is worth perusal .

Again , we find other Statutes , Civil or Politick , Sapientum adhibito Consilio , Mid , Minan Witenan raede , that Man heald ofer eall Englaland .

With provision against Thieves , Robbers , for the Peace , Hue and Cry , &c. There are Statutes also for repair of Burgs and Bridges : Scyrforhinga ; praefidii fiat apparatus Terrestis ac Maritimus , quoties ejus Muneris Necessitas Reipublicae obvenerit .

And presently after , Quae ad Reipublicae pertinent Vtilitatem . Among the Crown-Prerogatives , Violata Pacis & Divitatae Militiae Mulcta .

Sheriffs Turns , Hundreds , and Tythings , are here confirmed ; and the twelve-year-old Fealty , with views of Frank-pledge . But this Oath was to the Kingdom , rather than to the King : Fidem det omni se in posterum aetate , tum Furti , tum Furti Societate & Conscientià temperaturum .

Again , of passing Ordeals , Sythan tha Gemot waes on Winceaster ; since the Parliament at Winchester ( this being at Oxford : ) at after , Iussum vero ac Placitum hoc Nostrum , si Praepositorum aliquis incuriâ omiserit , aut exequi aspernabitur , ex Nostrà Omnium Sententia , Regi 120 s. Dependito . A clear Parliament .

Si quis alium injustè , armis spoliavit , eam quae est loco Colli obstricti , Mulctam Dependito Healsfange . It is also in the same Laws , the punishment of false Witnesses . Some think it the Pillory , some worse ; as the Original of that Proverbial Letany , From Hell , and from Halefax . See K. Hen. Laws , and Helfang .

Si quis in Militiâ ( perfectione Militari ) pacem violaverit , vita , vel Weregild Mulctator : si quid rapuerit , pro facti Ratione , compensato .

Si quis Pensionem ad oppida , pontesve reficiendos denegarit , Militiamve subterfugerit , dato is Regi 120 s.

Again , in those Statutes , The King must live upon his own Feormians ( or Farms ; which in Saxon , afford all needful for man : ) and none may be compelled to give him any Maintenance : That the Folk be not burthened . It is the 67th Chapter .

Loss of Dower or Joynture to Widows marrying within twelve months , might seem hard ; but so long she need not pay any Heriot . And the same Laws free the Wife from her Husbands Theft , although found with her ; except it be lockt in her Hord , Chest or Tyge , ( Dispensae , arctae , & Serinii ) Of which that Law giveth her leave to keep the Keys . But Ina's Laws are hard , concerning Children .

Again , for the Militia , He that in Sea or Land-fight ▪ leaveth his Lord or Comrague ( & Felugo ) must die as a Traytor ▪ his Boocland to the King , other 〈…〉 Estate , to his Lord . But of him that dieth fighting with his Lord , without any Heriot , the Heirs may enter , and Scyftan hit , swithe righte . Of this Shift-Land and Gavelkind , Lambard in Terra & Scripto , Perambulation of Kent , and Spot of Canterbury ; besides several Acts of Parliament , in Edw. 1. Edw. 3. and Hen. 8.

If Celeberrimus ex omni Satrapia Conventus , ( which is there , and by King Edgar also , to be twice a year , or oftner ) be Parliament , as such great men have thought ; then have we much here also for Power and Priviledge of Parliament . Nay , more indeed , if it were but the Grand Folemoot or Sheriffs Turn , so much below a Parliament .

He that in such a Grand Moot had defended and maintained his Right and Plea to any Land , is there setled without dispute , for his life , and his Heirs , or Assigns , as his Will should dispose : Chapter 76.

And again , for Priviledge of Parliament ( or yet lower ) Sive quis ad Comitia profiscator , sive revertatur , ab eisdem , ( from Gemote , or to Gemote ) placidissima pace fruitur , nisi quidem furti fuerit manifestus . Theof , Thievery , founded more with them , than now with us . For their twelve-year-Oath ( of which before ) at Frank-pledge , was onely against Theof ; which yet seemeth to intend all above it : for what forbiddeth the less , forbiddeth the greater much more .

One thing more I may observe ; through all these and other old Laws , there is still so much Religion and plain-hearted Simplicity , with Piety , expressed , that it shews our Ancestors had not yet learned to be ashamed of their God , or of looking towards Heaven .

I have been the longer in these , that so I may be the more brief in those that follow : for by this time I am come to the Laws of St. Edward , as he is called ; and I should mispend my own time , and abuse others , in vouching all the Demonstrations of Parliaments in his time .

His Charters to Westminster are near enough , and may be known of all : wherein he confesseth his Resolutions for going to Rome . But , Optimates , Communi habito Concilio , rogabant me , ut ab intentione desisterem , his Vows made him more pressing , than else he should have been . But these also his Parliament undertook to satisfie ; Et tandem , utrisque placuit ( so he speaks ) ut mitterentur Legati , &c.

While these stayed at Rome , procuring his Absolution , a Vision to a Monk commandeth repairing ( or refounding ) of St. Peters Westminster , as antient as Austin the Monk . ( I cannot omit a passage in one of the Popes Letters of that time , telling the King , That he must expect great Motions and Alterations : for the World was near its great Change ; and the Kingdom ( which he calls , Sanctorum Regnum ) foretold in the Scripture , was coming to begin , and never should have an end . )

King Edward refers it to the Parliament ; and at length , Cum totius Regni Electione , ( they are his own words ) he sets upon the decayed Minster : Which he rebuilt , ( with the Tenth of his whole Estate ) and there reposed the Reliques ( which the Popes gave to King Alfred at his Consecration ) with this grand Priviledge of Refuge and Pardon , to any that fled hither , for Treason , or any other Crime whatsoever .

Another Charter he granted to the same Minister : Cum Concilio , & Decreto Archiep. Episcop. Comitum aliorumque Meorum Optimatum .

And a third Charter addeth , Aliorumque omnium Optimatum . And a little lower , Coram Episcopis , Abbatibus , Comitibus , & omnibus Optimatibus Angliae , omnique Populo . A very clear and full Parliament .

His Laws are in print . I must not so much as glance , but as he that followed the great King so swiftly , that his steps could not be seen upon the Sand.

May not his third Chapter extend to Priviledge of Parliament ? ad Dedicat. ad Synod . ad Capitul . venient . Si Summoniti sint , &c. sit summa Pax. Hoveden will help sometimes for a Comment.

That of Out-Laws should be explained . It is , Ore Lagali Regis ; which is , Per Iudicium Coronaterum ; or in the great and old City , Per Iudicium Recordatoris . See King Ethelred's Charter to Vlfrie , of the Lands of Ethelsig , outlawed for Theof . Rep. part 6. Pref. But of Woolff-head , and the Outlaws being slain upon Resistance , I have spoken already . As also of Tythes , and King Ethelbert's Parliaments in these Laws mentioned , and of Rome-scot , Danegeld , and Weigrylds . But of these , again ere long .

Of the Kings Duty and Oath , we must speak more in due time . Of his Pardon , before , as it might stand with the Oath of his Crown . Here also we find , that when his Pardoning Power was largest , yet it could not reach to Murder or Treason , or other Crimes , but so as they must abjure : and if they stay and be found , any might do Iustice on them , without Iudgment . It is the 19th Chapter .

Somewhat we said of Degrees , or Counts , Earls , Thanes , or Barons . The Phrase doth here occur ; but of elder times by much , nay , long before King Ethelbert's Barons : if we may believe Historians . But of this , again in due time .

Of the Iews , also before Iudaei , & omnia sua Regis , seemeth hard ; but it had a gentle Comment in succeeding times , and here also they must be defended : Sub tutela & defensiones Regis Ligeà . The Phrase may be remembred , till we meet it again : King Iohn did but confirm King Richard's Charter to the Iews . See Hoveden and Matthew Paris , of Richard and Iohn , Walsing. Edw. 1. & Neustria .

Pax per breve Regis , is a short Expression ; but it might have a long gloss , and be compared with all our books ; laying this for a principle or foundation of Law , That Writs were made by Parliament ; and without such common Consent , could not be changed . Of which , the Mirrour , Bracton , Fleta , divers others . But of another Breve de pace , before the Combat , in Right or Assize , Glanvil , Hengham , and the Register .

Of Frank-pledge , Tythings , Counties , Hundreds , and Wapentake , somewhat before . This Law may fill up Lipsius on his Tacitus : nor is it useless for the Militia . Hac de causâ , totius ille conventus dicitur Wapentac , eo quod per Armorum ( i. e. Weapun ) tactum , ad vincem confoederati sunt .

There is an old Comment on that , de moribus Germanorum ; that may help and please in all , of Hundreds , Wapentakes , Cities , Counties , with Counts or Eolders : of which before , in State and Church . But to these of the Church , I did not then adde their Power and Custom of healing the Sick , by anoynting them . For which , the Saxon Canons of Aelfrick , may be perused .

In this Chapter of Greeves , with the Appendix de Heretochiis , we may see the whole Model of the old Militia ; with the Power of Headboroughs , Constables , Bayliffs , Aldermen , Sheriffs , Lieutenants , or Generals , all the Greeves both in the Gree and Vae , Peace and War : for so the Law is pleased to criticize ; and for Peace we do agree .

The Law is in print , and may be read of all ; in which it is so clearly stated and asserted by these Laws . I should do wrong to take them in pieces .

Not onely in matters of common Justice , or serving of Writs , or petty Cases of Peace , as some have pleased to express it ; but when any unexpected doubtful mischief ariseth against the Kingdoms ( or against the Crown ) Nay , when it proceedeth so far as to War , Battel , or pitched Fields , the Heretoches must order the War ; Ordinabant acies , & alas constituebans , Prout decuit , & prout eis melius visum est , ad honorem Coronae , & ad Vtilitatem Regni .

And lest yet there might be any mistake , the same Law telleth us , That those Heretoches , ( ductores exercitus , capitales Constabularii , vel Mareshalli exercitus ) were and still ought to be , chosen Per Commune Concilium ( by Common Council ; ) and for the common good and profit of the Kingdom , even as the Sheriffs ( saith that Law ) ought to be chosen .

Again , the former Laws are renewed for those that flie , and those that die in the War , and of their Heriots ; which here are again remitted , with all Relief . Of which , before .

I am the longer in this , because it was this very Chapter which has been so strangely cited ; and that also from a place as much suspected , as any of all these Laws : which I do ●ot speak as if I thought they might not be strongly asserted ; even there where the oldest Copies are defective . And for one instance , of many , I might produce that piece about the Kings Oath ; which is cleared not onely by the Mirrour , and divers others , but by another passage in the oldest of these very Laws themselves ; by comparing it with what is there said of King Edward 's own Oath to his Kingdom . Of which , much more hereafter , on occasion .

To that of King Arthur's , King Edgar's , and King Ethelstane's Conquests , much might be added ; in special , touching Scotland : Of which , before . And now I adde , That what is here ascribed to Eleutherius , may be much asserted and enlarged from those that have clearly stated the bounds , extent , and jurisdiction of the Province and Diocess of York : for to it belonged ( as I find in a very good Author ) all the Church of Scotland , long before it was divided into modern Bishopricks .

That of Norway , and their Affinities with England , and Oath of Fealty , may now be little worth ; but in this that is added at the close of that Law , So did King Edward establish : Per Commune Concilium totius Regni : By the Common Council of the whole Kingdom , or by Parliament : which may well be added to each and every of those Statutes .

How the Militia was ( on particular persons or places ) assessed by Common Assent , hath been observed and cleared already . I shall now only adde this , That when such Assessments were made by Common Council , it was then no more in the Kings power to release them , than it was to impose them before , or without such Common Assent .

For this , might be cited in more than an hundred Charters , to religious houses , and places of greatest Franchise ; in which there is such an usual exception to the Trined-necessity , of Military Expedition ; Castle ( or Burgbote ) and Bricqbote : for here also , as with the Romans , they were especially Pontifices .

And where-ever these are found released , as to Peterburg , Canterbury , Westminster , but especially to Glassenbury , the first and oldest Church in Britain : Fons & origo , totius religionis . It may be a clear Demonstration of the Parliaments assent to such a Charter .

For otherwise they could not be dispensed with by the King , as we may find expressed in divers Charters ; as in those of Crowland : which yet had great immunities . And of that Restriction , Matth. Paris may afford us the true reason , because those three were setled for the Kingdom : Propter Publicam Regni Vtilitatem , ut per ea resisterent hostium in cursibus . And K. William's Laws , Castel . & Burg. & Civit. fundatae & aedificatae ad tuit . Gent. & Popul . Regni , & ad Defens . Regni & idcirco observari debent cum omni libertate , integritate & Ratione .

Private Castles for habitation , may be given in Dower , and divided by Pacerners ; but so may none for publick defence . Yet of such also , may a man be Tenant by the Curtesie , being able to guard them for Publick service of the Common-wealth .

One grand Objection must be removed ; but we need not fear it : for it will flie or run away of it self . 'T is that of the Conquest , as many are pleased to call it ; not attending how little in this they be the Kings Friends : for if this were his onely or his main and best Title , there might be found in future ages , some that may come to think it as lawful to conquer him , as it was or could be , to conquer them .

It must be considered : for if the foundation be not sure and low , the higher the building is , the nearer its fall . And it hath been observed , that the higher Skale ( got up by accident ) is more ready to pop down again , than it was before while it hung in due poize .

It seemeth a great weakness , to be apt or prone to Suspition : and therefore I shall not say I do suspect some that are most zealous for Prerogative , or the Title of Conquest , to be least acquainted with the Laws or Histories of England . But I cannot be wholly free from wonder , that any Lawyer or Historian that was friend to the King , should be passionate in these , which were so clearly quitted by that King whom they call the Conquerour .

He stood on Stilts or Patents , or Pantofles ; but on plain English ground , with two feet , as other men . The left and the weakest was Succession to Edward , whose Kinsman he was , and Heir by Will ; as appeareth by divers Passages in these very Laws of Saint Edward , and William ; which may be seen and read of all .

But the right Leg , with the strongest and best Foot he had to stand upon , was the Peoples Assent , Consent , Acceptance , and Election ; which we shall yet more fully clear , when we discuss the Right of Succession or Election to this Crown and Kingdom .

But for the present , it may suffice to observe , That all these Laws we now have of King Edward's , come to us through the Hands , and Grant , and Confirmation of King William the Norman ; and no otherwise .

Which I need not prove to any that have either read or seen the Laws themselves , of which we speak .

For in the very Title and Preface thereof ( besides divers other passages in them ) all this , and much more , is fully related and recorded .

For it is there also further added , That all those Laws were so presented to the said King William , by a sworn Iury out of every County : Who did also assert , That these which they did present as the Laws of St. Edward , were the undoubted Laws and Customs of the Kingdom , that had also been collected into a Body by King Edgar , and continued ( though sopite ) through the Troubles of succeeding Kings , till Edward had the leisure to renew or rather confirm what was the Law before .

Nay , when among all those Laws King William did most encline to those which came from Norway ( whence his Ancestors and Lords had issued forth , and where a Bastard might inherit ) all the Patriarchs of England , Compatriotae Regni , qui Leges edixerant , did so move and press him ( with such Arguments as may again be well considered ) that at length in Parliament , Concilio habito , precatis Baronum ; the King himself consented as they did desire . This is expressed in his own Laws .

And by his own desire , the Archbishop of Canterbury was one of those entrusted with enrolling or recording of those Laws : Which to that very King , and to his Successors to this very day , became one special Clause of the Coronation-Oath : Which was , To confirm all the Laws and Customs of the Kingdom ; but especially the Laws of St. Edward , called the Confessor .

And one of King William's own Laws is , That all men observe and keep the Laws of King Edward in all things : Adauctis his quas constituimus , ad Vtilitatem Anglorum .

If this be not yet clear enough for the Laws themselves ( which are now extant , and may be read and known of all ) we might confirm it much by Ingulph , living at the same time , and bringing those Laws with his own hands from London to his Crowland , with such an Endorsement or Title of his own making : Leges aequissimi Regis Edwardi , quas Dominus meus inclitus Rex Willielmus Autenticas esse , & perpetuas , per totum Regnum Angliae , inviolabiliterque tenendas , sub poenis gravissimis Proclamarat : & suis Iustitiis commendarat , &c. He was like enough to know it .

And the old Book of Litchfield , cited in the great Reports ( besides that of the Iury from every County ) addeth also , That the same King William did by the Counsel of his Barons , call by Writ of Summons ( Summoniri fecit ) all the Nobles , Wise-men , ( Elders of the Witan ) and learned Lawyers in each County . And in that great Parliament , Ad Preces Communitatis Anglorum , Rex acquievit , &c. confirming all by Common Council . This of Litchsield is now printed in several places ; and Roger Hoveden agreeth in Henry the Second .

Nor did he onely confirm , but in some things mitigate ; and in divers , explain and clear what might seem obscure or heavy to the People : ( Ad Vtilitatem Anglorum . ) His Laws are now printed , both with Mr. Selden's Notes on Eadmerus , and with Mr. Wheelock's Impression of the Saxon Laws and History ; with a very good Preface of Sir Roger Twisden . They do oblige us much , that love and clear our Laws , so far as just and good .

What Emendations and Additions King William made to St. Edward's Laws in this also of the Militia , we have observed before , at our unexpected enterance on this Question . Which was not at all intended , to be once , so much as touched , but in one Parenthesis : Which was past Recovery , before this Discourse was so much as designed .

But now having wandred so much , and so far , ( beyond my own purpose , as well as my Subject , ) I could almost , be perswaded , to step a little further ; and to touch ( I must no more , ) upon some few passages ; between the Conquest , as they call it ; and the Barons of Wars : Or the time of the great Charter . For , since that time , the Rolls and Printed Acts , are every where ; much larger , and much better , than my little reading or my leasure , can present them .

Two words have sound of horror , to the People ; who are taught , to think them both , oppressions , and the sins of him they call the Conqueror . Dane-geld ; and the Book of Dooms-day . ( Some have added Curfeu , with I know not what , to make poor Children quake . )

These , have been proved , to be long before , the Normans coming in . To that of Dane-geld ; I may add , that good King Edward , did also retain it , to his Coffers ; ( when the Danish Storm was over ; ) till he saw , the Devil dance upon it : As the Crouland Abbot doth Record . But it did rise , from one , to three , to four , to six shillings on the Hide ; but so , by Parliament : as may be much collected from the 11th Chap. of King Edwards Laws ; compared with Florence of Worcester , Hoveden , Huntingdon , Math. Paris , and Math. of Westminster , besides some others , which we must produce e're long .

And ( to say nothing of eleemosyne pro Aratris ; of which Canute and Ethelred : ) it is clear , in King Ethelstanes Laws ; that single Hides ( or Ploughlands ) in England , were to maintain two Horsemen , with Arms ; by Act of Parliament . ( And this was more it seems , than ever was King Williams Hydage ; or Dane-geld . ) Which may be added to King Ethelstanes Militia , as also , his Doom book ; ( for all Judgments in one Form ; of which his Laws speak , ) to what is said , of Booca Doom .

But to King Williams Doomsday , I shall now , add , ( to what before , ) that besides the Mirror , and Fitz-Herberts , N. B. with the old Abbot of Crouland . There is enough , in every segment of that Roll , to make one know , it was a Review ; and little but a Review of what was done before . They do abuse us else , that bid us read , the T. E. R. in all that Roll , Tempore Edwardi Regis ; plain enough , sometimes , without all Divination .

That it was , also confirmed by Parliament ; may be clear enough from the many exemptions a servitio Regis , and a Vice-comit . Nay to some inferiour places ; as Ely and Worcester : Besides old Crowland : which was not exempted from such service , till the latter Saxon , or first Normans time ; though Ingulph spake of divers Ethelreds . But the same Abbot , will tell us , that this Doom Book , was now , also made ; juxta Taxatorum fidem , qui Electi de qualibet Patria , &c. And that his Taxors were both kind and merciful ; non ad verum pretium , nec ad verum spatium , &c. So preventing future Burthens and Exactions . Talem Rotulum , & multum similem ediderat quondam Rex Alfredus , &c. But Alfreds own Will , seemeth to carry it higher .

Nor was Ingulph's favour at the Court , altogether useless ; for , by that , we come to know , that our Norman King , even in little things proceeded by a Great Councel . So , that our Abbots Charters , must be viewed by Parliment . Coram Domino meo Rege , ac universo Concilio , &c. Thence he brought St. Edward's Laws ; as was observed before .

Huntingdon and Matthew Paris , with Matthew of Westminster , spake of his Hydage and Dooms-day ; as done with great Advice , and Justice . Misit Iusticiarios per unamquamque scyram , & inquirere fecit per jusjurandum , quot Hydae ( i. e. jugera , uni Aratro sufficientia per annum ; ) essent in unaquaque , &c. Nor are they wholy silent , of his Parliaments , Cum de more , tenuisset curiam suam , in Natali , ad Gloucestriam , and again , at Winchester , the like at London , in another season .

Tilburiensis telleth us , that Mony was paid , to the Crown , by Cities , and Castles , that used no Tillage : But from the Land ( or Farms , ) only Victuals , till Henry the first . And when the Kings foreign Wars , did make him press for ready Mony , the people murmured ; offering their Plowshares . Horum igitur Querelis inclinatus Rex , by advice of his Great council , ( definito magnatum Concilio ; he sent out discreet , prudent men ; that upon view of all the Lands , should assesse the sums , which the Sheriffs were to pay into the Exchequer . This Gervase lived a while after King William .

Florence of Worcester , near his Reign , he telleth us , of a Great Councel , at Winchester . And again , of another , at a place called Pedred ; not only by the King , Arch-Bishops , Bishops , Earls , but also , primatibus totius Angliae , a full Parliament ; for which , Florilegius , and Walsingham , Newstria , may be considered , with Hoveden , following Wigornens .

That in his Reign there was an High Constable of England , ( ceasing in Henry the Eight ; appeareth by the Parliament Rolls of Edward the Fourth : ( but Alfigar in the Book of Ely , was such ; in St. Edwards time , ) and to Him , some ascribe , the Constable of Dover : with the Warden , and Priviledge of the Cinque Ports ( with their Hamlets , or Circuit ; including Rye , and Winchelsey . ) But all this speaketh Parliament , as doth also , his New Church Priviledge : Communi Concilio Archiep. Episcop. Abbat . & omnium Principum Regni mei . Yet to be seen , not only at Sir Robert Cottons Jewel House , but among the Rolls with King Richards Charters , for the Dean and Chapter of Lincoln .

This exemption of the Church from Seculars , &c. is the more considerable , because it came up with the Norman King ; at the time of Hildebrand , whose Letters missive came hither , ad Willielmi Regis Concilium . And that this Councel , was a full Parliament ; appeareth , by the Charters ( as I may call them ; ) of the Arch-Bishop of York , ex praecepto Papae Gregorii 7. and Confirmatione Domini Willielmi Regis , sub Testimonio Universalis Anglorum Concilii , &c. Of which Roger Hoveden is clear , telling us also , that this King summoned , the Arch Bishops , Bishops , Abbots , Counts , Barons , Vice Comit. cum suis Militibus , were these Knights of Shires .

To this I may add ( from the Continuer , of the Saxon Chronology ; ) that Lanfranc , came hither from Caen , ( on the Kings call , and the Popes Command , ) & primatum Regni Anglorum in Ecclesia Cant. suscepit ; eligentibus eum Senioribus , cum Episcopis , & principibus , clero , & Populo Angliae , in curia Regis , a very clear and full Parliament . Nor may I so wrong our Common Law , as to detain that antient Record , which the great Judg in his Reports citeth ; of a Writ of Right , brought by this Lanfranc ( against Odo Bishop of Bajeux ; ) and removed by a Toll , into the County Court , where the King commanded all the good Lawyers , to attend the County ; & a toto Comitatu , Recordatum atque judicatum est ; That as the King held his Lands , in His Demesn ; ( in Dominio suo ; ) so was the Arch Bishop , to hold his , omnino liberas & quietas in Dominiquo suo ; ) which Judgment was afterward confirmed by the King and Parliament , cum consensu omnium principum suorum .

With which Record , I may compare the old Manuscrips in Bennets Coll. Cambridge ; telling us , of a great Moot ( magnum placitum ) in loco qui dicitur Pinenden ; in quo Lanfrancus diratiocinatur , and the conclusion , that he was to hold his Lands , and Customs , by Sea and Land ; as free , as the King held his : ezcept in three things ; si regalis via fuerit effossa ; arbor incisa juxta , super eam ceciderit , si homicidium factum & sanguis in ea fusus fuerit ; Regi dabit , alioquin liber a Regis exactoribus .

In the same Author , were read , of a Great Counsel at London ; in that Normans Reign , and of another at Glocester ; where the Arch Bishop of York , ( jubente Rege , et Lanfranco consentiente , ) did consecrate William Bishop of Durham ; having no help ( adjunctorium , ) from the Scottish Bishops , subject to him : which may be added to that before , of Scotland , belonging to the Province or Diocesse of York .

Nor can I abstain from the next paragraph , in the same Author , how Lanfranc did consecrate Donate ( a Monk of Canterbury ; ) ad Regnum Dubliniae , at the Request of the King , Clergy , and people of Ireland . Petente Rege , clero & populo Hiberniae , which with divers others , might be one Argument , for the Antiquity of Irish Parliments , and their dependance on England , long before King Henry the Second .

For which I might also cite King Edgars Charters , Oswalds Law ; and divers Historians of his times . But the Charters mention Dublin it self ; and yet our Lawyers , are so Courteous as to free Ireland from our Laws and Customs , till towards the end of King Iohn , and some of them conjecture , that the Brehon Law , came in again , and that our Parliament , obliged them not till Poynings Law in Henry the seventh .

But to return to our Norman King . I need not beg proofs of Parliaments , in his time ; at least not to those , who know the Priviledge of antient Demesne , which therefore is free , from sending to Parliaments , and from Knights Charges , and Taxes of Parliament , because it was in the Crowns , not only in King William , but before him , in King Edward ; and the Rolls of Winchester , for which , the old Books are very clear , with divers Records , of Edward the third , and Henry the fourth : besides natura brevium , That I say nothing of the old Tractat. de antiquo Dominico , which is stiled a Statute among our English Statutes .

And besides all the late Reports , or Records ; I find it in the Year Books of Edward the Third , that he sued a Writ of Contempt , against the Bishop of Norwich , for encroaching on Edmondsbury , against express Act of Parliament : By King William the Conqueror , and by the Arch-Bishop of Canterbury , and all the other Bishops , Counts and Barons of England . It is 21 of Ed. 3. Mich. fol. 60. Title 7. Contempt , against an Act of Parliament .

This might well be one of the reasons , why the great Judge , giveth so much credit , to the old Modus of Parliament , as it was held in the time of King Edward the Confessor , which as the antient copy saith , was by the discreet men of the Kingdom , recited before King William the Norman , and by him approved ; and in his time used .

I have cited it before , and compared it , with Irish Modus : which my much honoured friend Mr. Hackewil , one of the Masters of Chancery , hath under his hand attested ; from the Great Seal and Charter of Henry the fourth , ( which himself hath seen : ) reciting a former Charter of King Henry R. Angliae & Hiberniae conquestor , & Dominus who sent , the same Modus into Ireland .

Where himself or his Son ( Iohn sans terre ; ) had no great work to reduce them , to the civility of Parliaments : To which they had been long before accustomed , and the Roll saith , communi omnium de Hibernia consensu , teneri statuit , &c. nor doth the division of the Irish-Shires seem so lately setled , as some have thought ; although I may not dissent from the great Patron of Civill , and Ecclesiastical Learning , the late Primate of Ireland .

Touching that Irish Modus , I have very little to add , to the fourth part of the great Institutes : in several places . I shall now , only observe , that both these , old Modi of Parliaments do agree ; in this Custom of the Kingdom ; that the King should require no Ayd , but in full Parliament ; and in Writing to be delivered to each in degree Parliament .

And both they agree , that every new , difficult case of Peace ; and any war emergent , within , or without the Kingdom , ( vel Guerre emergat , in Regno vel extra , ) ought to be written down , in full Parliaments ; and therein to be debated , which may be considered , by all that will argue the Militia .

To which also we may add , one clause of the Jewish Laws ; of their great Sanhedrim , to whom , they retain the power of Peace and War ; especially where it is Arbitrary , and not meerly defensive , in which the Law of nature maketh many Magistrates ; and this might with ease be confirmed , from the Laws and Customs , of all Civil Kingdoms in all ages . But I must not wander , from our English Laws .

I had almost forgotten that , which should be well remembred . Although many would perswade us to seek our Laws in the Custumier , of Normandy ; it is not only affirmed in the Great Reports ; but also asserted by Guil de Rovell Alenconien ; ( and proved by divers Arguments ; ) in his Commentaries , on that Grand Custumier ; that the Normans , had their chief Laws from Hence . As had also the Danes ▪ in the time of Canute , for which , we might have more proof , and witness , than the Abbot of Crowland . So much even strangers did Love and Honour old English Laws .

Of King William the Second , ( Sirnamed Rufus ? ) I shall speak but little ; for I must discuss his Election , and Coronation Oath ; in a fitter place .

Some footsteps we find of his Parliaments ; in divers : Wigornensis and Hoveden tell us , that when he would have constrained the Scottish King ; ut secundum judicium Baronum suorum , in curia sua , Rectitudinem ei faceret ; Malcolm did refuse to do it , but in the Confines , or Marches , Where ( he could not deny ; ) but the Kings of Scotland , were accustomed , rectitudinem facere regibus Angliae . But he then said , it ought to be , by the Iudgement of the Parliaments of both Kingdoms ; secundum judicium utriusque Regni primatum ;

And I find the like Record , cited on Fortescue , from Godfrey of Malmsbury . But Huntingdon , and Matthew Paris also relate , that the same King Malcolm , did submit , both to do Homage ; and to swear Fealty to our English King , and Paris addetth , a pretty Story of King Malcolms overlooking Treason . But again to King William .

Of his Errors in Government , I shall only say , that if Edom , did really signified Red , as hath been thought ; I could believe , that all Historians , speaking of Adamites , then oppressing the People ; might allude to the near affinity , between Edom and Rufus , for Red. For , this was his Sirname , of King William the Second .

Henry the First , is yet alive in his Laws and Charters . Not only in Wendover , with other Historians ; but among the Rolls , and Records , yet to be seen , in the Exchequer . They are now in Print , with the Statutes of King William ; after the Saxon Laws . I must but run , and glance .

His Charter acknowledgeth his Crown , to the Mercy of God , and the Common Councel . Communi Concilio , & assensu , Baronum Regni Angliae .

It confirmeth King Edwards Laws , with all those Emendations which King William added ; for the profit of the Kingdom . It forbiddeth all Levies , nay , the Monetagium Commune ; but what was agreed , and setled in King Edwards Reign .

And the Test of that Charter ; is , by Arch-Bishops , Bishops , Barons , Comitatibus , Vice-Comitatibus , & optimatibus , totius Regni Angliae , apud Westmonasterienses , quando Coronatus fui . This was copied out into every County , and kept in every Abby . So much also , we find in Matthew Paris .

Of his Charter to London , I may touch , in another place . This I must not omit in his Laws . Sive agenda proecipiat , levia permittat , hortatur maxima , vitanda prohibeat , yet still the Laws must be , Manifesta , Iusta , Honesta , & Possibilis ; a kind of sacred Tetragram . It is the 4th . Chapter .

And the next , is the Basis , or Foundation of our Law process , and of all Judicials ; In all Causes , Accusers , Parties , ( or Defenders , ) Witnesses and Iudges ; be and must be distinct . Nec perigrina sint judicia , vel a non suo judice , vel loco , vel Tempore celebrata ; nec in●e dubia , vel absente accusato dicta sit sententia , &c.

Nihil fiat absque Accusatore ; nam Deus & Dominus Noster Iesus Christus , Iudam furem esse sciebat ; sed quia non accusatus , ideo non abreptus . Testes Legitimi sint , & presentes ; absque ulla imfamia , vel suspicione , vel manifesta Macula . Recte , Sacerdotes accusare non possunt ( Laicos . ) Nec oportet quemquam Iudicari , vel dampnari , priusquam Legitimos Accusatores habeat presentes : Locumque Defendendi accipiat , ad abluenda crimina , &c.

And again , Pulsatus ante suum judicem , si voluerit , causam suam dicat , & non ante suum Iudicem pulsatus , si voluerit , taceat . Si quis , Iudices suspectos habeat , advocet , aut contradicat . Appellantem , & vitiatam causam appellationis Remedio , sublevantem ; non debet afflictio vel detentionis injuriare Custodia . Unusquisque per PARES suos , Iudicandus est , & ejusdem Provinciae . Quicquid adversus Adsentes , vel non a suis judicibus ; penitus evacuetur , Chap. the 5th . and the 31th .

Iuramentum , debet habere Comites , Voritatem , Iustitiam , & Iudicium : si ista defecerint , non juramentum , sed perjurium est . Qui per lapidem , falsum Iurat , perjurus est . Deus ista accipit , sicut ille , cui juratur accipit . Iuramenta filii & filiae , nesciente Patre ; & vota Monachi , nesciente Abbate , & juramenta pueri , irrito sunt .

Are These the Laws of England ; or of Nature , rather ? These we owe to Beauclerck ; which he owed much to Cambridge . See Malms . of Plato's Kings .

Touching the Militia , ( beside that in General , confirming King Edwards ; and King Williams Emendations : ) There are some particular , as of Tenants by Knights Service , to be freed from Gilds , &c. That so they might be more ready , for the Defence of the Kingdom : and in it , the Kings Service .

This agreeth with the old Writ , de essend . Quiet : de Tallagio : Which the Tenant in Chivalry , might require of Right . And Tenants in Dower , or Widows , had the like Priviledge , of which the Old Register , & natura brevium .

That also of Edgar or Canute ; for Cowards in Land , or Sea-fight is renued ; with that of Boocland , as before . Much also of Helfeng .

Releifs are agreed and setled . For Earls and the Kings Thaynes ; with others called . Meane Thaynes . But in some Chapters Thaynes are equal to Barons . ( And all Tenants En chief , at Clarendon , were stiled Barons : and Relief , is Cosin German to the Saxon Heriot . Being for the Heir or Militia : whence Heretoche in King Edwards Laws .

But the Dutch Here , is also Dominus , as Senior , in so many Nations ; since the time of Charles the Great . And some will have the Saxon Heregeat , to be the Her 's Geat , or Beast of the Lord , or Here : ( which of old , was paid before , or rather than , the Mortuary . ) And from this Here , som would derive Haeres . So , that all Heirs , should be Her 's or Lords ; as Homines were Yeomen , ( You Men , or Young Men : ) but Homines , in Law ( as with us , Men ) are Servi . Such they say were Yeomen , and none Gentlemen but such as came from Barons ; or at least the Tenants in Capite , if not in Antient Demesn . But for this , see Edw. 1. Tit. Attorney . 103 And the Learned Ianus .

Dane-geld , is here also reduced to 12 d. the Hyde ; as of Old : ( from which it rambled , to 3 , 4 , 6 , 8 , 10 , or 12. ) strict provision , is also made for keeping of Arms ; and against using or lending them , for the dammage of Others . Nay a mulct , is set upon him , whose Lance , or Sword , doth much Trespass ; though against his will . He is to be severely punished , that disarmeth any unjustly ; and must answer , all the mischief that ensueth such disarming .

To this Kings time , belongeth the case of William the Kings Chamberlain , de Londonia : who refused to find a man , for the Army , as his Tenour required : But the Abbot of Abbingdon ( of whom he held ; ) in presentia sapientum ( in a Witen Moot ) rem ventilari fecit , &c. Unde cum Lege Patriae , decretum processisset , ipsum exortem Terrae , merito deberi fieri , &c. by Friends , it was composed ; and the Tenant enjoyed his Land .

I find it , from Sir Robert Cottons inestimable Treasury , cited by Mr. Selden on Hengham . Nor can I deny , but this ( with divers other cases , ) might forfeit the Land . But , as in case of Alienation of such Tenures ; a Statute of Edward the 3d. provided that the King shall not retain the Forfeits , but shall only , take a Fine Reasonable ; ( which the Chancery , must also assess ; by due Process : ) So , is our Law very tender in all cases of Forfeit . And among the old Wytes , Wardwyte was for the Militia : being an acquittance of Mercy to him that had not found a man , for the Servise ; according to his Tenure . Of which old Fleta , with others .

The Laws of this King do evince , the Tryal per PARES to be long before , the great Charter . Nor would it be hard , to shew it , before King Henry , and besides all other hints , through Elder times ; the case is well known , of Roger Fitz Osborn , apprehended by Tiptoft Sheriff of Worcestershire ; and condemned for Treason in King William the Norman ; per judicium parium suorum ; Of which antient Historians , before the Commentator on Magna Charta .

I should not omit King Henry's Charter , to the Abbot of Bee , confirming his antient Customs , and Priviledges , prescribed for St. Edmonds time , for Grand Assizes , &c. yet to be found in the Book of Assizes ; lib. 26. Pl. 24. and in the 3d. or 8th . part of the great Reports : and in the Comment on Magna Charta , cap. 11. but here it is from Ethelred and Edward the Confessor .

One of his Priviledges , was to be free from the Justies of either Bench , and of Assize . Which is one of the first Records , for the antient Benches . But it may not be impossible to trace them , thorow some Elder times .

For the Saxon Law , ( so often repeated , and confirmed ) that none should complain to the King but want of Right ; or against summum jus , at Home , might in modern Language be translated Thus. The Writ of Right , must abide the Baron or Bayliffe : ( For it cannot fall to a Copyhold Steward : ) except the Lords default , or consent , or the Tenants suit , procure a Tolt , to lift it up to the County Court . Or a Pone , place it in the Common Pleas.

That such a course was antient , may be gathered from the Mirror , Asser , and others of Alfred , Edgar , Canute , Ethelred : and of the Tolt before , in King William . To which I may add the Writ of Right ( in the third Book of Reports ; ) brought by I. de Beverlace , against Walter of Fridastern ; and by a Tolt removed from the Court Baron , to the County ; and for default of the Baron , ( how it must be falsified , we may touch ; ( anon ) it was concluded , before Ranulph de Glanvil , Sheriff of Yorkshire .

Glanvil is clear enough ; for the course of removing to higher Courts ; and of the Writ de Pace , stepping between the Combat ( on the Writ of Right ) and Assize , Coram justitiis in Banco sedentibus , and although this Book ( intituled Glanvil ) was not written , till about Henry the 2d . yet it is plain enough , that he speaketh of Antient Custom . His words are very considerable .

The grand Assize ( saith he ; ) is a Royal benefit , granted by the Parliament ; ( Clementia principis , de Concilio procerum , populis indultum ; ) as being that which saved blood , and did oft prevent the Combat ( on the Writ of Right ; ) and of this he speaketh ( in the third of the same Book ; ) as of a very old and antient Custom . Secundum jus & consuetudinem Regni antiquam . A weighty expression , from so antient an Author : which may possibly lead us higher than the Saxon times . For , we may find the Duel , or Combat , among the Gaules ( from British Druides : ) as among the Germans also ; whence our Fathers came .

Nonnunquam etiam armis de principatu contendunt . So of the Gauls or British Druids ; He that was like to know it , and of those , and Germans , Tacitus , and Diodorus Siculus , before Aventinus . Some observe it , in the Salique Law ; and among the Laws of Charlemaign , and that the Longobards did bring it into Italy ; where it was also setled by Law . But of our Ancestors combats , in another place .

I know not any Fines upon Record , till Richard the First . But Stowels Case in Plowden , may inform us , that they were before the Norman . And we need not doubt , the Books of Edward the third ; speaking of Benches , settled in Henry the first , but I do not remember , the phrase of Capitalis Iusticiarius noster , till great Charter ; which repeateth elder Customs .

Goodwin , the famous Earl of Kent , among the Saxons , had two Sons , that ( in as good an Author as Huntington ) are stiled , Regni Iusticiariis ; ( the phrase is common , in Hoveden , and others , of the times of Clarendon Assizes . ) And K. Edgar had a Cosin Ailwin ; who was totius Angliae Aldermannus ; which is supposed , Lord Chief Iustice ; by a Learned man ; besides the best ( though yet imperfect ) Glossary . But it might denote the Lord High Constable : Of which before , in William the first .

And William the 2d . found great Odo of Baieux , setled L. Ch. Justice of England . Iusticiarius totius Angliae . So , Matth. of Westminster . and Huntingdon calleth him , Iusticiarius , and Princeps and Moderator totius Angliae , in Wigornensis , He is Custos Angliae . And the phrase of Iusticiarius , is also in Matth. Paris of William the first : Iusticiarii in Banco Regio , of after times , as also , placita de Nova disseissena ; before Justices in Eyre . But he speaketh of placita lethifera ; the Pleas of Life and Death ; ( yea , even in Bishops Courts ; ) about the Normans coming in .

But in Polydore , we find out 4 Terms , ( with divers other elder Customes ) ascribed to the first Norman . But that which he addeth , of the place , for these Courts , to be , at the Kings appointment ; might be true : till the Law fixed the Pleas , which may be , long before our Charter , of Henry 3d. where it is confirmed , not created . But , for the Kings Bench , the Return was , coram Nobis ubicunque , &c. and for the Pleas , coram Iusticiariis nostris apud Westmon .

That which Virgil addeth of the Iudges in Westminster ; and of those higher beyond appeal ; and of Iustices of Peace , setled by the Conqueror ; ( as he saith Sheriffs were , ) in every County : may be more considered . For it may be , as much too late , as , some have thought it , too early .

They which presume to make K. Henries Cubit the first Standard of Winchester ; must refute the old Saxon Laws ; ( of which before : ) For , those may seem to deserve , as much credit as Malmsbury , other marks .

That he did confirm the Curtesie d' Angletterre I may yeild to the Mirror , and other Authors : but not that he first began it . For the Statute of Kentish Customs ; and those that treat of Gavel-kind , may shew us an Older Tenure by Curtesie ; there also , where the Tenant had no Issue .

And this may teach us , whence the like Custom came into Ireland ; as also to be , Curialitas Scotiae ; which our master seemeth to forget , when he saith Que ne'st use en auter Realm , forsque tant solement en Engleterre . But his Commentator he lyeth in this ; and in divers other things .

In case Entails , this English Curtesie is very remarkable : in which the Book of Cases have great diversity . But those that perswade us , there was no Land in Tayles before the 2d . of Westminster , in King Edward the first ; ( which are all , that subscribe to Littleton ; ) must interpret the Laws of King Alfred , much otherwise than I can do . For the 37th . Chap. of his Laws , is to me , much clearer , for Lands Entail'd ; then is all the Statute , de Donis Conditionalibus .

One Case of the Courtesie ; may be considered , for the Militia . If Land in Capite descend to a Woman ; who upon Office found , intrudeth ( on the King ; ) and taketh an Husband ; and by him , hath Issue ; and then dieth : yet cannot the King eject or detain the man ; but he shall be Tenant by the Kingdoms Curtesie ; although he came in , upon Intrusion . Which seemeth to hint , that Our Law , did chiefly intend , the Kingdoms good defence , and service , ( which might be performed , by such an intruder : ) rather than the Kings pleasure ; or his bare Prerogative , in this , which is thought , so great a Prerogative , of Tenure in Capite . For which the Comments on Magna Charta . and the Statute of Prerogative ; with Littletons Dower , and Curtesie ; are clear enough .

To Henry the first , they also ascribe the Curtesie ; of saving the wreck , from his Exchequer ; if there were , so much as a Cat , or a breathing Creature let in the Ship . I do not deny him , to be so courteous as to confirm , some such Sea-Custom ; ( for which , he had a very sad Occasion ; when his Sons and Daughter , with so many Friends were drown'd in one Shipwrack . ) But , as Richard , soon after him , seemeth more courteous , in this also , ( if we may believe Hoveden : ) So I doubt not , to assert it , to higher and elder Times . And yet the Law Maritime , is dark enough : with all the jurisdiction of the Court Admiral . Whose office , may be harder , than the Name : A strange mixture of Greek and Arabick .

The old MS. del' Office del' Admiral ; hath divers Records of H. 1. R. 1. and K. Iohn : Speaking of Tryals by 12. ( as at Common Law ; ) but now the practise is much otherwise . In the Rolls of Ed. 1. the Name of Admiral : but not in our Printed Laws , that I know , till Edw. 2d . And in Edw. 3d. the Rolls are full of that Office , parted among divers : for the North and South Seas , &c. As was touched before , in Edgar .

In Richard the 2d . it was brought to a weldy model : being uncertain rather than infinite before . For the bounds were ever straiter much , than some may imagine . They were again disputed in Henry the 4 th . Eliz. and Iames. It lies more open to the Common Law , than to the Wind and to a Premunire , ( some are apt to think ; ) much more , then all are aware . I may touch it again in a fitter place .

Here I shall only add , that besides the Laws of Arthur the Brittain , and Edgar the Saxon ; we have some Records ( for so I may call them , ) of Customs by Sea ; as well as by Land . With Priviledge , to some , below the King ; before the Norman ; whom they make the Founder , ( yet he was but Patron , ) of the Ports ; and Wardens for the Sea . Somewhat of this in Lanfranc's Case before : and more again ere long .

Historians are clear and full of this King's Parliaments ; and of his Summons to Parliament . Majores natu Angliae Londoniae Congregavit . and again , principes omnes & totius Regni Nobilitatem sanctione adnotavit : so the Monk of Worcester , and Hoveden ( almost in the same words , ) which Matthew Paris , expresseth thus ; magnatibus regni Edicto Convocatis . And in Walsinghams Neustria ; Majoribus regni ; and Principibus Convocatis , Virgil himself confesseth his full Parliaments .

And of a Convocation House , distinct from the Parliament , sitting at the same time ; they are plain enough . Et cum rege principes regni omnes , tam Eccles. quam Secular apud Westmon . ubi etiam Anselm . Cantuar. Archiep. magnum tenuit Consilium ; de his quae ad Christianitatem pertinent . as Florence , and Hoveden .

Huntingdon , is also clear in such a distinction ; Rex tenuit Concilium apud Londoniam ; & Willielmus Archiep. Cantuariensis , similiter in eodam villa , apud Westmon . and this Author useth to stile , the Parliament , magnum placitum , ( of which before ; ) and the Convocation House , Concilium , or Synodus ; which yet in him , in all , was confirmed by Parliament ; or else invalid .

In Parliament were also decided , the Great Contests between Canterbury and York ; not only concerning the Crown , or Act of Coronation : in which ( to this King , ) they both joyned ; as we find in Matth. Paris , and Walsingham . But the Parliament declared , that it did not at all belong to York : as besides Hoveden , we read in him , that continueth Florence of Worcester . But in Beckets absence , it did fall to York : and so it had been before . So also Canterburies contest with the King was debated in full Parliament , three days together , in the Arch Bishops absence : and at length composed , with the consent rather than content of both parties .

The King was resolute for investiture as he found it from his Father and Brother : the Clergy was pertinacious , for the Popes Decrees . But the Emperour ( Son in Law , to our King ; ) did so muzzle Pope Paschal ; that he Consents and Decrees , that none should be Consecrate , but whom the King Invested , as the Clergy , and People chose him .

It seemeth considerable , how all Historians ( of that time and dispute , ) do Record , the choice of Bishops , to be in the People : in Phebe and in Populo , as well as in Clero .

They mention Radulph , ordained a Bishop for the Orcades : but rejected by all , because not Elected by Common assent of the People ; Plebis , Clero , Principis , 't is every where in the old Monks ; and how the poor Bishop , wandred up and down , as an assistant , to other Prelates . Of him and of English Right in Scotland , and Ireland ; much might be added , from the Notes of Eadmerus ; and somewhat of Lanfrancs Plea at Pinenden .

And at Prince Roberts Landing ; commoti sunt principes erga Regem causa Roberti , &c. But many of the Lords left the Parliament , ( subtrahentes se de Curia ; ) sed Episcopi , et milites Gregarii & Angli , ( the Commons ) stuck to the King ; who was Provincialibus gratus : and at length the Witan or Parliament , composed the quarrel . Sapientiores utriusque partis habito consilio , Pacem inter fratres composuere . 'T is in Florence and Hoveden , with Malmsbury .

Wendover with Huntingdon Record , how the great Firebrand in that War , Ranulph of Durham , was committed by the Parliament : de Communi Consilio Gentis Anglorum . This was the great man . whom K. William , had made Pacitator , in Matth. Paris : but Placitator & exactor totius Regni , in the Monk of Worcester .

His continuer addeth also , that the Peace , or League with France , in this Kings time ; was made by Parliament ; Consilio optimatum : and that by advice of Common Council , the Custody and Constableship of the Castle of Ros or Roch ( with its Ford , &c. ) were setled in the Arch-Bishop , and Church of Canterbury : with leave to build a Tower , and divers other Priviledges , for the Militia .

I must not mention the Orders of King Henries Parliaments , against Money Clippers and corrupters : with such a change of Money , as made things very dear . So dear a time that an Horse-load of good Wheat , could scarcely be bought under six shillings : as Henry of Huntingdon and others .

Of King Stephens Election , more , when I shall discuss , the Right of Succession to the Crown . But I must not omit that which , of him , is Recorded by so many good Authors : That he did prohibit the Laws brought hither from Rome . And this also by Parliament : as Bale affirmeth . But of this , in much older writers .

Frier Bacon is one , ( in his Compendium of Theology , or his opus minus : and the great Reporter citeth it , from Bacons impedimentum sapientiae . ) He was a very Learned man , and a most genuine Son of Art ; his Opticks and his Burning-glasses , would be more enquired after ; for they may be little worse than those of Archimedes , who in this is newly found to go beyond himself .

Such Glasses must be Conick Section : and in Concaves not exactly Circular , but parabolical , for which there is as real Demonstration , ( by the Law of Reflections ; ) as for the best perspectives , ( by refractions , ) in Ellipses , and Hyperbolies : to which I must not add , that Mirandum Naturae of two lines , that approach nearer and nearer , in infinitum ; yet they still shall be Asymptots , and never meet , ( for such attend Hyperbolies .

Which yet , is more Demonstrable , by Reason ; than is that of Mersennus , ( or others ) by sense ; that Concave Glasses may be placed in such a continued proportion ( may I say ) of Reflection ; that by such it may be possible to fire a Ship , ( or other matter combustible ; ) at a far greater distance , than between Dover and Calice . I say not ( as some have said , ) in infinitum .

But in this and all the Mathematicks ; who can add , to him that did contract ( and correct ) Longomont , into a page ? Our Country-man , he is : but at too great a distance , in Breda .

But I must not wander from K. Stephen . His Repeal of Roman Laws , is also in Sarisburiensis ( living in the time of K. Henry the 2d : ) an Author of Credit , and polite enough . It is among his Court trifles ( Polteraticus , or de nugis Curialium ) .

Nor is he content to meddle only , with mean Courtiers ; but even of the highest , he is plain enough . And one of his Thesis , is , that by Reason and Scripture , it is both Lawful , and a glorious Act , to kill a publick Tyrant . But of his exceptions to the Oath of Fealty ; we must have more in its Time and Place .

That of K. Stephen is in his 8th . Book , and 22 chap. ( near enough to his discourse of Tyrany . ) Where we have also an hint of him , that brought those Laws into this Kingdom . Theobald the Arch Bishop of Canterbury , going to Rome for his Pall ( some say ; ) and for this the Monk of Malmesbury , would be considered ; Who hath also Recorded , K. Stephens Oath ; of which we must speak again . I must not dispute whether those Italian Laws , by him prohibited ; were the Civil , or the Canon Laws : which I rather believe . Although I cannot deny , but the Civil also did come in , or intrude upon our English Laws . Nor may I forget a passage of Parliament in that famous Appeal , or charge of Treason , in King Richard the Second's Time .

The Lawyers especially Civilians , were consulted , about the charge . They conceived it , not to be rightly moulded , according to the forms of Law . But the great Council resolved , and declared , that they would proceed , by no other Law , but the course and Custom of Parliament . To which they added , that England never was , ought or should be Ruled or Governed , by the Civil Law : which yet is enough : ( some think too much ; ) in causes Maritime and Ecclesiastick , that I speak not of any other Courts .

Fortescue ( or rather the young Prince in him ) telleth us , of some of our Kings , that have attempted to bring in , the Civil Laws , and patrias Leges abolere , but I cannot tell who , those were ; no more , than the Learned Commentator . Except perhaps , he may reach up , to King Lucius ; who did desire the Roman Laws , ( even for the State : ) but can we say , the Civil Laws , were then Born ? or at least Christned , enough for a Christian King ?

But the reason , why , any King so much esteemed the Civil Law ; may be rightly guessed ; to be this , grand maxim of Tyranny ; Quod principi placuit , Legis habet vigorem . A Sentence of the Civil , Royal or Imperial Laws ; citeth indeed , by Glanvil , Bracton , and others of our Lawyers : who refuted , rather than allowed it . But in this who can add to Mr. Seldens late Dissertations on Fleta .

Wigornensis , lived till K. Stephens time . In him , or his Continuer , we find what Laws these were , & how , or who did bring them hither . For we are there told , that Theobald with other Prelates , had a Summons from the Pope to Rome : and there were admitted to a Council ; such as many ages could not Parallel . For thence , ( he saith ) they brought those Canons , or Decrees ; quae longe lateque per Angliam jam Conscriptae .

He lived not perhaps to know they were prohibited : but he doth intimate , enough , in what a cold manner , the Parliament did entertain , the Legate , sent from Rome . He was a great Leveller , it seemeth : For , he came , to pull down , and to destroy ; that so , he might plant , or build , we read it , in the Monks . Who bring , this Legate , Coram Rege & primoribus . And again , before the Commons also ; Episcopis , Abbatibus , & innumera Cleri & Populi multitudine .

Ere long , we find K. Stephen at another Parliament ; ad Boum vadum Oxes foord ; or Oxford . Where some Lords , or Prelates , are committed , for suspicion of Treason . And by some it is ascribed to the King alone . But in the Monk of Malmesbury , we may find it done upon complaint of Those , he calleth potent Laicks : and by Councel , or perswasion of Magnates , and Proceres Regni .

The thing doth speak it self . For one of the Lords , committed was the great Roger of Salisbury , ( the grand Favorite ; ) of whom before . His Charge was this , in chief ; that without leave of King and Parliament ; he had built , and fortified a Castle . But in his own Devise ( this was the Castles name ; ) he did ensnare himself . The Name and Fate , hath since been found , observed more than once ; and yet they write , it was the fairest Castle in all Europe .

Matth. Paris followeth Huntingdon and Hoveden ; but in this , they both come short of Malmsbury ; well acquainted with that famous Roger , whose misgiving heart , was like , to have prevented , what did follow , in that Parliament . But so we might have lost , or mist that Act , which here was made , for the Militia : setled clearly in the King and Parliament .

We find it also in the old Continuer of the Monk of Worcester . Who living at that time , doth tell us , that in full Parliament , ( habito postmodum Concilio , coram primoribus Angliae , statutum est , ) it was Enacted for a Statute , that All Burghs , Castles , Forts , &c. ( in quibus secularia solent exerceri negotia ) should submit to the King & Parliament . Regis & Baronum suorum juri cedant . And by vertue of this Act of Parliament , was the Castle of the Devise presently demanded ; and at length yeilded : while the great Prelates neck , ( or his Sons who had been also Chancellor , ) was in the Rope to have prevented his Quartain , of which he died .

In the same Author we find much , of an High Constable ; and several men , with that Title . One is Milo : who did lead the King , in Royal State ; cum honore , Regiam ad Aulam ; ubi Cives fidelitatem Iuraverunt , &c.

Ere long , we find him charged with Treason , ( so as is worth considering , for the Militia ; ) and his Office conferred , on Walter de Bello Campo ; Wigornensi Vice-comite . But discontents ( that rose before ) did now increase . And when the Oath of Fealty , was pressed on some ; they refuse , and say , the King may take their words , if he please .

But for a Bishoprick the Prelates perswaded a grave man , to swallow the Oath : and so he did ; on much reluctance . Maurice , was his Name ; Elected by the people ; a Clero & Populo : being then presented to the King , by Bishops ; Attesting his deserts and due Election .

Another Bishoprick is conferred on Philip , the Lord Chancellor ; but Consilio Baronum . And a while before , the Abbot , was made a Bishop , at London ; petente Milone Constabulario , & favore Populi , utriusque Ordinis ; that is , the Lords and Commons ; or rather the Clergy and Laity .

In Huntingdon , we read of Robert Arch-Deacon of Leicester , about this Time , Elect Bishop of Lincoln ; Rege , Clero , & Populo , summo gaudio annuente . And a while after , he shews us the King at London , in a full Parliament , disputing the grand question of Appeals ; with the Romish Legate . For , such Appeales ( saith he ) had not been used in England , till That Henry of Winton the Legate , had cruelly intruded them . Malo suo crudeliter intrusit .

The Monk of St. Albans borroweth from him ; and sometimes repayeth , with interests . As in that Statute , for Priviledge of Churches , and Church-yards ; with all the Clergy ; so , that none but the Pope could absolve , from violence done to such , ( in which they all agree : ) he added also , another Act of the Parliament , that Plowes in the Field with Husbandmen should enjoy the same Peace or priviledge ; as if they were in a Church-yard .

His Geffry de Mandevil , ( Consul , or Comes ; ) was a very great man : de magna villa . For he speaks , of his Princeps Militiae ; and of another , that was , his Magister peditum . But in Henry of Huntingdon , we find him , at length , clapt up in Prison : but scarcely , secundum jus Gentium : Rex cepit eum in curia sua ; ex necessitate magis , quam ex honestate . Hoveden ; hath of him , the like expressions ; adding also , that from a Baron , he had been raised , to the degree of a Consul ; that is an Earl . For in him the Earl of Flanders , is Consul Flandrensis , and the Earl of Anjou ; Consul Andegavensis .

This was he that come to be Hen. the 2d . who at his Landing , ( being Duke of Normandy ) coyned money ; which passed here , by the name of the Dukes coyn . Nor only he ; but Omnes potentes , tam Episcopi , quam Comites & Barones , suam faciebant monetam . ( and of this , Nubrigensis . ) Which may be compared , with the Saxon Laws , of King Ethelstan and others . As K. Hen. monetag . common . In the same Huntingdon , we also read , that ( by the Mediation , of Theobald of Canterbury , and Henry of Winton ; ) the King was so reconciled , to this Duke and Earl Henry ; that they never more discorded , ( also that the Duke , was made , Iusticiarius Angliae , next under the King ; & omnia Regni Negotia , per eum terminabantur . ) But in Polydore , we find this Pacification , made by Parliament : Cujus Authoritate pactio facta est .

Matthew Paris is so full of Law Terms , that I could beleive him , in this , to allude to the Law Fines and Recoveries . For at this peace , he telleth , how the Kingdom was again Recovered . And ( after a disgression to Merlins Prophesie , in which the phrase of Vice-comites , may be duly considered ; ) he concludeth , thus a War that had raged 17 years together , was now quieted by such a Time , hoc fine quievit .

To which he adds , that famous story of the Souldier , that in this Vacation made a Voyage to St. Patricks Purgatory . And by that occasion , he relates , the best description of Hell , or Hellish Torments , that I remember , in any Historian of credit . With which may be compared ; divers others in the same Author . But that which is added , at the Souldier return to the King ; may be added also to what is observed before , touching Irelands dependance on England . For , the same Souldier was again sent , by King Stephen into Ireland : to be Assistant , as an interpreter to Gilbert ; who had a grant from hence , to found an Abbey in Ireland . Whither he also carried this Souldier , speaking Irish , and with Tears , he would often relate , his Voyage to Hell . Which is so recorded and asserted by divers Religious men .

To K. Stephen's Militia , we may also refer that , which so many Historians Record , of his damning the Hidage or Danegeld : Which yet was not his Act , but the Parliaments ; that did Elect , and create him King . We must discuss it more fully ere long ; but now , for Danegeld , we may assert it to be expressed , in his very Coronation Oath : on which , he was admitted .

One of the clauses was , that he should , for ever desist from that , which had been paid to some of his Predecessors , singulis annis . And Wendover , or Paris express no more . But in Hoveden , and Huntingdon Dane-geld is expresly specified , which both affirm to be then at 2 s. the Hyde . They agree also , with others ; That this was again , specified in Parliament , at Oxford : Where the King , did again confirm , his Coronation Oath .

Matthew of Westminster doth also Record that of these promises or Oaths , he made a Charter , which seemeth to be that Charter , which the great Reporter , in his 8th . part , affirmeth , to be yet found , in an old MS. de antiquis Legibus . And that , the said Charter , among divers other things , doth expressely confirm , the Laws of K. Edward and of K. Henry .

Nay the Monk of St. Albans affirmeth , that in Parliament , Congregatis Regni magnatibus , he did there solemnly promise , to meliorate the Laws , or make them better as they should desire , or require , juxta voluntatem & Arbitrium singulorum ; which we may consider again upon occasion .

Nor must I omit , that much of this very Charter , is yet to be read in Print ; in an old Monk that lived in King Stephen Time ; and those particulars , for confirmation of all good Laws ; and in special , those of King Henry : with divers other things , that are worth perusal . It is in the Monk of Malmsbury : but a little after the Letters written to the Pope , about King Henries death ; confession , absolution and Anoynting by the Elders ; according to what was let to the Church , by the Apostle St. Iames : as in those Letters , is more fully expressed . Which may be added to that , before , of the Church Elders .

Polydore telleth us that in full Parliament at Oxford ; King Stephen did abolish that , which had been oft exacted , for Hydage per singula jugera : and that he intreated another Parliament , to carry on that War , which by their Advise and Councel had been undertaken , in the Name of Common Wealth . Reipublicae Nomine , vestro cum Consilio tum Consensu , susceptum est : and his desire to them was , so to act in Person ; that the People might not be burthened with Taxes .

And at his end Virgil addeth that , for all his continual Wars ; he did exact , little or no Tribute , from the People . So that the Parliament it seems , did wholly manage his Militia .

From a long Storm at Sea ; we are now come , into a quiet Port , and a calm Haven , such were the Thoughts , Expectations , and Hopes of All ; in Henry the 2d . We have his Laws in Print ; in several places : and his Lawyers , known enough . For who needeth to be told of Glanvil in his Reign ; of whom before : and much I might add , from divers others besides Hoveden .

Who by occasion of that Judges Name ; hath not only given us a Copy , of St. Edwards Laws ; but hath also , asserted their confirmation by K. William , ( as I should before ; ) upon the Oaths of chosen men , from every County , ( sworn , as strictly as I remember any to have ever been ; ) with additions also of some emendations added by King William ; ad Utilitatem Anglorum .

These Laws he saith , were compiled ( or conditae ) by the said great Glanvil ; who ( in Henry the 2d . ) he stileth ; summum Iusticiarium totius Angliae . And for this Kings confirmation of the good Laws of H. the first , we need no more than what we find in him ( and all other Historians ; ) of the grand contest upon that occasion ; between the King & Becket , Son to a Saracen or Syrian Woman , yet a Citizen of London , ( and his Fathers Name was Gilbert . )

Favourite at first he was to Theobald , ( of whom before : ) by him commended so , that he became Lord Chancellor . But at his Patrons Death , being chosen to succeed ( in Canterbury ; ) he resignneth up the Seal at taking orders : and in this both Wendover and Matthew Paris add to Hoveden , who in Becket is the largest .

Polydore agreeth , that his former perferment was , to be Arch-Deacon , to that Sea : to which he makes the Office of a Legate , to be then entailed ; ever since Lord Theobald did fetch his Pall from Rome .

But the great quarrel was about the confirmation of K. Hen. Laws , ( of which before . ) They touched all the Clergy : So , that once reading of them , was enough to make the Pope condemn and Ban them all . In a great Councel or Parliament the King did ask , ( they say petitioned the Church , ) that all would agree to keep the Laws of his Grandfather , Henry the first .

Becket with some reluctance did consent , without his Salvo . But again repents in Parliament , at Clarendon 't is clear as well for Commons as for others . Congregato Clero & Populo Regni , apud Clarendun . And again , the Lords beseech the Prelate that he would vouchsafe to come and say before the King and Commons , coram populo diceret , that he would receive and admit those Laws .

He doth consent and comes into the House , and frames his lips into a Content : the King is glad and bids the Lords retire , and bring those Laws from the Records ; that all might be perused and agreed . Somewhat more he meant : for when the Lords returned with those Rolls , the motion was that all should set their hands , or Seals in witness of agreement . But at this ,

The Prelate startles and recoyles again , and riseth high or foul in Language ; So withdraws in greatest discontent . Ere long , we find him out again ; at least , he would be out ; For now he sueth for a Pass to France : he meant the Pope . I must not here omit the course the King did take to stop him . One there was that did complain , he had been long in suit ; in some inferior Court of Becket , yet he could not get his right : and therefore was at length enforced to some other course and Court. For which his way was first to falsifie the Prelates Court by Oath , according to the Custom of the Kingdom : and of that we spake before in Writs of Right ; and Tolts or Pone's ; to remove them to some higher Court.

This seemed but a petty Case that happen'd every day , so that the usual Writ hath such a clause , that if the Baron did not , then the Sheriff should . And if the Sheriff failed ( in the County Court , ) then Bench must help .

But this was now enough to give a pause and check to that great Prelate . He must stay and plead it out ; at length he finds the formal Oath ( to falsifie his Court ) was made upon Paper ( or a Service Book : ) whereas the Law required , that the Oath should be upon the Holy Gospels . This would not suffice , but Parliament , ( at least the Barons , and the Tenants en Chief were such ; ) did put the Prelate into Misericordia .

He doth struggle and attempt a Writ of Errour or the like ; ( Iudicium illud falsificare : ) but he must submit and is amerced at 500 l. he cannot bear it : fulleth 〈◊〉 , but soon receives another summons .

For he shall have load enough , and now must give account of all his former Bailywick . He seeks delay , and would be Essoyned , de Malo lecti , and instead of Knights , two Earles are sent to view him , whom they find in Bed , but give him respite only till the morrow .

This bringeth a Case of Law to mind , Essoyned of sickness cannot Rise ; without a License . If the Knights ( that come to view him ) find him not , or out of Bed it is default ▪ Of which in Bracton , Fleta , Hengham . And his Learned Commentator addeth a pretty Case in Rich. the First .

The Abbot of Crowland sueth the Prior of Spalding for entring upon his Marsh. The Prior Pleads , he entred as upon his own Ese-simple ; and doth offer 40 Marks for grand Assise : and so the Mise is joyned ; and the Right doth lie at stake .

The Abbot is Essoyn'd de malolecti ; and the Writ goes but to the Knights . But while one was coming to view him , he doth rise and cometh towards the Court ; so the Knights Certificate is , The Abbot was not in Bed .

On long debate , the judgement was , that upon default the Abbot ( yet in Possession ) must submit to yeild the seisin to the Prior , whom he sued : See the Statute of Marlbridge , and the 2d . of Westminster cap. 17.

But Becket had Law enough to make him Rise , and come to the Court ; in fear and discontent , but his Right hand is so fastned to his Cross ; that it could hardly be forced from him , who did struggle for it . But his sorest pressure , is an heavy Action of Account , for all he had received as Lord Chancellor .

He pleads Discharge . And that at his Election Henry Son to him , that had such interest in the Kingdom , ( cui Regnum adjuratum fuit ; ) and all the Barons of the Exchequer , and Richard de Lucy , Iusticiarius Angliae ; did declare him free : quietum Deo & Ecclesiae , & ab omni exactione seculari , &c.

But his conclusion ( Ideo amplius Nolo inde placitare ; ) cost him dear . For when the King had this , he knew his way and said to the Parliament , ( or Baronibus suit , ) do me speedy Justice on this man , Cito facite mihi Iudicium de illo , qui Homo meus ligeus est : & stare Iuri in Curia mea recusat .

So they did retire and being alone without the King ; exeuntes Iudicaverunt . And they did adjudge him to Prison . But he escaped before his Commitment : although some , ( that saw him going , ) cryed Traytor , stay , and take thy Doom , By stealth he got to Sandwich , thence to France ( by Flanders : ) where he found the Pope .

I do not know that he talked much , of refusing to make his account . But his grand complaint was , that he was pressed to consent to such injurious Laws , as those ( which he brought to the Pope , ) of King Henry the First . Which were soon damned , notwithstanding our Kings Embassadors .

But Writs were sent abroad to the Sheriffs and Iustices , for seizing all , belonging to the Arch-Bishop : for attaching Arms that did appeal to Rome ; or bring any Letters of Excommunication , or attempt a Voyage beyond Sea without a Licence . And for sequestration of the Peter pence till further order .

If that I have cited already , were not clear enough for Parliament in these ; we may have more from Wendover or Matthew Paris , where we are expresly told , that the great meeting at Clarendon ( of which before ) was made up of a Lord President ( de mandato ipsius Regis , ) with Arch-Bishops , Abbots , Earls , Barons ; and to these , also are added Proceres Regni : which may here speak the Commons , as in Hoveden , Populus ; so often expressed of that Parliament . For it may be remembred , that Virgil himself doth acknowledge the Commons also to be very frequently called to Parliament ; from the time of King William , as we may read in his large description of our Parliaments ; in Henry the first . To which also ( for this Parliament at Clarendon ) we might cite very many Historians , besides Gervase , and the Quadrilogus ( or Becket's Life by 4 cited on Eadmerus ; and in Ianus , ) from which there is much to be added to that in Matthew Paris .

Where it is also asserted that these Constitutions of Clarendon , were not only agreed , but expresly sworn by all the degrees of Parliament . Episcopi , Clerus cum Comitibus & Baronibus ac Proceribus cunctis Iuraverunt , &c. as also that these were but a Recognition or Recordation , of some part of the Customs and Liberties , antecessorum suorum . Of which also Florilegus thus coram lege & Magnatibus , facta est Recordatio regiarum Libertatum & Consuetudinum ; Cui Archiepiscopus assensum non praebuit , &c. Nor would it be hard to shew very many if not all of them , agreed in Elder times . Of Foreign Appeals we spake before , and the Writ Ne Exeas Regnum , is as old as Rufus ; if we may beleive Polidore , or better Authors .

To that of Appeals from Ecclesiastical Courts , ( to the King or Delegates ; ) I can add very little , to what is in Caudries Case ; in the 5th . part of the great Reports , with the preface to the 6th .

That against Excommunication of the Kings Tenants , ( or as the Elder Law was of the Barons ) is cleared enough in the Notes on Eadmerus ; from the first Norman Records . To which may be added a Law of Henry the first , of the Wills or Legacies of his Barons , vel Hominum ; with which the Learned Ianus compareth an Old Law of Canute ; and toucheth the power of the Ordinary , in Case of Intestates ; which is prescribed from most antient Parliaments , but the Original doth not appear .

I must not spend time in heaping up the many proofs of Parliament , for the Assizes of Clarendon : which were again , renued at Northampton . Hoveden is large and clear for them all , and for the Circuits , and Iudges in Eyre , by full Parliment : Communi omnium Concilio . But the Mirror , and those that write of Alfred will afford us these in many older Parliaments .

From that Assize of Arms for every Fee , we may learn to expound the Statute of Winchester , and others speaking of a former antient Assize : which is here found at large . To which I may add , that what is here spoken of the Iustices presenting to the King ; may be expounded to the King of Parliament . As is fully expressed , not only in Fleta , but in the said Statute of Winchester , The Iustices assigned , shall present the dafaults at every Parliament . The defaults of Arms for the Militia . And by this time I shall not need to speak of Escuage in H. 2d . assessed by Parliament ; for Tholouse , Wales and Ireland ; of which Gervase the red Book in the Exchequer , and Matth. Paris , with the Notes of Hengham . To which I might add Matth. of Westmin . de unaquaque Carrucata terrae totius Angliae , quatuor denarii Concessi sunt & collecti , for the Holy Land . But when he had the offer of the Kingdom of Ierusalem ; Convocato Clero Regni , ac Populo , it was rejected Concilio universo ? as the Monk of St. Albans speaketh ,

Of K. Rich. Coronation , and his Oath before the Nobles , & Clero , & Populo , Hoveden is very large . From him it may be found in others . And of the Jews in those times , to whom he was a Friend ( as his Charters shew ; ) and very sorry for their sufferings ; who did help him much for his Eastern Wars ; as some relate with Polydore . See Mr. Selden on Arundeliana Marmora , his great Charter to the King of Scotland ; of many Liberties , ( for which he did recieve 10000 Marks ; ) but still retaining the antient Dues to this Crown is every where . For which I must not forget what was before in H. the 2d . Malcolm became his man 't is said , and did him Homage : but on some disgust he was not Knighted by our King ; as was wont . ( and Matth. Paris addeth also , that the Scottish Kings Horse , was the English Marshals Fee , at such a Knighting , ) But Hoveden telleth us that about two years after , the same King came again , and was then Knighted by King Henry .

Of his Parliaments and their Power , in War and Peace ; I might cite very clear proofs . The League with France , was agreed by both Kingdoms , & Archiep. & Episcop. in verbo veritatis , ( that was the mode in those days for them , as for the Lords since , in verbo Honoris ; ) & Comites , & Borones Regnorum , praestito Sacramento , juraverunt .

And his Sea Statutes were made de Communi proborum virorum Consilio , as the Charter it self expresseth it in Hoveden , Wendover or Matth. Paris . Who doth add , that per Consilium magnatum , there were made , Iusticiarii super totum Navigium Angliae &c. Which with divers Records of H. 3d. may be added to the Admiral , or Saxon Aen mere eal ; Over all the Sea .

How the Lord Chancellor ( being left the Custos Regni , ) did on pretence of the Kings Warrants , pole the People ; is at large in Hoveden and others . But in the Monk of St. Albans we may read , that er'e long in Parliament of Commons also , ( assensu Communium definitum est , ) it was enacted , that none should so domineer in England ; to disgrace the Church and oppress the People . And that all the Castles which the said L. Chanc. had committed to his Clients , ( or disposed without the Parliaments assent , ) should be presently delivered up : and in particular the Tower of London ; where he then was , and was glad to yield , and make his peace , with much submission for to save his Life .

For which also Polydore Virgil is worth perusing . And in him we also find the North committed to the Bishop of Durham ; ( who of an old Bishop , was made a young Novice Earl , but he paid dear , for his honour ; ) and how the Chancellor excused himself by the Kings Command . As if ( saith Polydore ) the Kings Command , might disannul the Law : Quasi fas esset , jus omne principis jussu rescindere .

Of the Kings Voyage to the East , I shall not speak ; nor of the famous Prophesies he found touching Antichrist , and the Revelation . They are in Hoveden , besides all others .

Where we also find him ransomed by Commune assent ; in special of the Clergy . And for this Walsinghams Neustria , may be added to others in the Road , and at his return , he is again Crowned before the People as well as the Lords ; & Consilio Procerum .

Yet Polydore ( with others ) is bold to charge his Reign with great exactions on the Clergy , in special for his ransome : but himself yeilded , that the King did send , the Bishop of Salisbury into England , that by the consent of Parliament ; Regii Senatus Authoritate ; he might get his Ransome .

And himself yeilded that at his return there was a Parliament ; wherein the King thanked his People for their Faith to him , and for that they had helped him in his Wars and Imprisonment . And that Ejus Nutu , Archiep. Cantuar. was conferred on the said Bishop of Durham : and that the Chalices , &c. were again restored to the Churches ; and that the Laws , with weights and measures , were then also corrected or amended .

K. Iohn's Election must be discussed in another place . Of his Military Aids , Paris with Wendover is clear , that they were granted in , and by Parliament . Convenerunt ad Colloquium apud Oxoniam , Rex & magnates Angliae ; ubi concessa sunt Regi Auxilia Militaria , de quolibet scuto duae marcae & dimidium . Nor are the Records wholly lost of his Parliament , summoned about a War with the French , ( or rather defence against them : ) and his Writs are known enough . They speak consent of Parliament , provisum est de communi assensu Archiep. Comitum , Baronum & omnium Fidelium nostrorum Angliae , quod novem Milites per Angliam , inveniant decimum bene parat : ad defensionem Regni . Besides the Rolls , this is found in the 9th . part of the great Reports , and in divers others . His Charter is now so well known in Print ; that I need not cite any clause thereof . No not that so clear for the Militia , Nullum scutagium vel Auxilium ponam in regno nostro ; nisi per commune Consilium Regni nostri . Yet I may add , that the Aides , there excepted and called Reasonable , ( being such by Common Law ) were afterwards assessed , and ascertained by Parliament .

For which the first of Westminster may be compared with the 25 th . of Ed. 3d. and in the 14 th . of that King ; his Aides were remitted by Parliament , because ( for his Wars ) he had taketh other Assistance than was due by Law ▪ which was much excused by himself , and divers other Kings .

And for this I might cite the 48 th . of H. 3d. the 25 th . and 31 th . of Edw. 1st . the 10 , 11 , 12 , and 13 of Edw. 2d . the 19 th . and 20 th . Edw. 3 d. who did buy Souldiers rather than Press them ; as the Roman Historian , of the declining times , of that Empire . Of the Barons Wars , I must not speak , a syllable , they do deserve a discourse by themselves : and it may be possible er'e long to see it . Now I shall only observe , that , our great Charter was rather the Cause ( or occasion ) than the Effect of those Wars . For , had it been so kept as it was made ; the Crown might have rested in peace enough .

They which perswade others that this Charter was first created by King Henry , and extorted from him , only by a prevailing Sword , seem not to consider so much as its Title ; as it now is printed : where we find it granted , in his 9 th . year . Although it was so ill performed , that it needed confirmation afterwards .

Matth. Paris is very clear and plain in this , that it was wholly the same or exactly agreeing , with that of K. Iohn , & in nullo dissimilis . Nay he speaketh of K. Iohns Charter , quas sponte promisit Baronagio Angliae : and again in K. H. 3 d. sponte liberaliter concessit . And the Popes Letters tell us , of K. Iohns Charter , granted most freely : Liberaliter ex mera & spontanea Voluntate , de Communi consensu Baronum suorum , &c. Besides the very words , in one of those Charters , spontanea & voluntate nostra dedimus , concessimus , pro nobis , & Heredibus nostris , Libertates has subscriptas .

Nor were these new priviledges , then first Created by him . But the old Rights of the People by long and ancient Custom : as we may find at large also in Wendover , with Matthew Paris , where they are not only , Antiquae Leges & consuetudines Regni ; but we are also told , they did present , the great Charter of H. the first , with his Laws and St. Edward's . And to these the Barons sware : as the King had also done before . For so we read their Covenant was ; that if the King would break his Oath , a juramento proprio resilire , ( which they had some cause to believe or suspect , propter suam duplicitatem ; ) yet , they would keep theirs ; and would do their best , to reduce him to keep his .

Virgil is also clear in this , who telleth us , K. Iohn's Troubles , and proceedure from his not restoring K. Edw. Laws , as he had promised . And that the Barons urged him , ut promissas tandem aliquando Lege daret , and again they ask for their Antient Customes ; vetera instituta , quibus olim Reges Pop. Angl . bene rexissent : and the close is , quae ille prius recepisset se sanctissime observaturum .

And for Henry the Third ; the same Author affirmeth , that ( instead of his granting ought , that was new ; ) the People granted him that grand Prerogative of Wardships ; ( which that King accepted , with many thanks ) adding also , that the People did not intend it for his Successors .

But of this I may speak in another place . I shall now only adde , that if there be not yet enough said , ( from all the Saxon Laws , and Histories , with the first Norman Confirmations and Explications ; ) to assert the Great Charter , to be more Antient ( for its matter ) than K. Henry or K. Iohn : I shall only desire those that are yet unsatisfied , they would please to peruse the 2 d. part of the Great Institutes ; or at least so much of it as speaketh of H. 3 d. and Edw. 1st . And it may be they will not wonder that at the Prelates motion , that Bastards might inherit : the Parliament at Merton , cryed out so loud , nolumus Lages Angliae mutate , &c.

To which also ( besides the late Declarations of this Parliament ; and the Petition of Right , ) may be added ; the Learned arguments , of those Grave and Honourable Judges ; to whom we shall ever owe so much , for standing up ( in an evil day , ) for Truth and Common Justice ; in the Case of Ship-money : Sir Richard Hatton , Sir George Crook , and Sir Iohn Denham ; with the truly Noble Oliver St. Iohn Lord Chief Justice of the Common Pleas. Their Arguments are now in Print by publick Command . Nor may I presume to add a word in that subject .

Nor shall I speak of the times following the great Charter ; which was confirmed more than thirty times in full Parliament : with many special Provisions for the Militia . It being most just and reasonable , that what did so much concern all , should be considered by all : Quod omnes tangit , ab omnibus approbetur .

Which is one clause in the Writ of Summons to Parliament ( about a War with France ; ) in Edward the First . Which seemeth to speak a necessity of Parliaments , for matters of War . Not only for Money , ( as some have pleased to speak : ) or at the Kings choice to call them , if he please . The Writ speaks an Act of Parliament : Lex justissima , & provida circumspectione stabilita ; not let at loose to the Kings pleasure : but as Fortescue , or long before him , the old Modus of Parliament , maketh it necessary for the King , and his Duty to Call a Parliament in all such Cases .

Nor shall I need to add what Paulus Iovius , Froisard , Comineus , de Serres , and the Duke of Rohan , with many other strangers have observed of our Parliaments , in this ; which is the Law of Nature , rather than of England .

For as in the Heavens or great World we did before observe Mars , ( or the Genius of War , ) to be there placed immediately under Iupiter , ( the great Councel ; ) and not under the Sun . So in the Microcosm or little World of Man ; we find both Spleen and Gall , within ; Hands and Feet , without ; at a good distance from the Head : and never joyned to it ; but in Monsters . Yet it is true that some Creatures have Horns on their Heads , but they are Beasts and not Men. Much less Kings , I hope .

But did we Labour , Toyl , and Sweat so much to keep a little River in its bounds ; that so we might be drowned , by the boundless Ocean ? Or be swept away at once , by a destroying and devouring Deluge ? Did we scruple at a little Gravel or a Pebble , that we might be crushed by a Mountain ? Would we strain at a Gnat , that we might be choaked by a Camel ? or be swallowed whole by Behemoth ?

It may not be , at least , it may not seem enough to quiet trembling minds , to say , or prove by arguments , there shall be nothing done but what is just : except we also see or know the way , and means , and usual course , our Governours will please to take ; in doing that which may , or is , and ever shall ( I hope ) be just . The way must be both Right and Clear as well as is the End . And of the two ; Unjust and Arbitrary Power , doth seem to be in Processe ; or in ways and means ; much rather than in Ends or Things , that be effected by it .

Sure it was , at least it might be , good ; to build a gallant Fleet of Ships ; and so it might be just , that each should contribute , a part to such a publick work . Nor was it only that , which then was taken from us , for a Ship ; that made us sigh and groan , and cry , or fear our Ruine ; or a universal deluge of Oppression . But it much or mainly was we did not see the way , or mean , or Legal Process , which the Court did take , in Taxing , or Assessing such a Place , a County , or a Person . And it was but thus in Loans , and so in divers if not all , the things , we so abhorred in the Crown : the thing , did not so much displease as did the way , or means , to such or such an End .

I need not say how curious , or how scrupulous , and tender still our Laws have been ; in pointing out the Way as well as End : the Process in the Courts of Justice ; as the Final Iudgements . So that indeed the very Form , and Life , and Power , or Substance of the justest Laws , doth much consist in Processe : which by some may be thought a shadow , or a Ceremony ; left at pleasure for a blustring Wind , or any furious hand , to shake as much , as long as it shall please . And then to salve it up , by saying to the Root , We mean you Good ; and do but lay you bare , that so you may the more behold , and more admire our Iustice in the End : when all the Boughs and Branches shall be gone , that do but hinder all your Prospect .

I must but Touch and glance . There is a Trinity which all our Laws do seem to Worship here on Earth : Estate , Liberty and Life .

Of all Estate , the Dower of Widows hath the greatest priviledge . For which the Comments upon Littletons first and fifth , with the Statutes of Merton ; and some clauses , of the great Charter it self , for Quarentine and Dower , are good glosses , on the Saxon Laws ; or those already touched : and I shall not add one syllable . All Estates have priviledge in Law ; and all Amercements must be such , as may consist with mens Estate ; from Alfred , Edgar , Ethelred , Canute or Edward , it did come to Henry the first ; and thence to the Great Charter . Where the Law is plain and clear . No Free man shall be Amerced , but according to his Default and Estate : Salvo sibi Contenemento suo . Which is so branched , that it reacheth to Villains also ; though it speak at first but of Free-men .

Hence the Name of Amercement ; because it was and ought to be an Amerciament ; or a merciful Fine . In which the Saxons went beyond us , in their Weregylds , and Divers Wytes : for which Fleta , may be a Comment to the Laws of Ethelstane , and others of the Saxons .

All this for End : but what must be the Way ? How shall it be imposed : so that it may as it should be merciful ? 'T is miserecordiu Regis ; as the Laws and Books do speak : but the King doth not , may not Fine , or Amerce any , but in and by his Courts of Justice . So that to render ones self , to the Kings Judgment , is to no effect ; and so adjudged .

For as the Father , judgeth no man ; so the King , ( who is or should be Father of the Country ; ) but he hath committed all judgment unto Men , that are our Fellows , ( Pares , ) in the Courts of Justice . Where indeed the King , did sometime sit in Person ; yet the Court did Judge ; and not the King ; as Fortescue doth plainly tell us . And the Judgment still is entred from , and by the Court , ( and not the King ) Ideo consideratum est per Curiam . And so the great Charter saith , we will not go upon him ; nec ibimus nec mittemus ; but by Legal Judgment of his Peers ; vel per Legem Terrae : and of this last clause I never saw a fuller Comment , in a few words , than in Mr. Seldens Notes , on Attaint in Fortescue . But of all Iudgments , to be made by Peers somewhat was said before in Henries Laws , and more again ere long .

And for Fines by Courts of Justice ( not by the King , ) and Amerciaments by Peers ; besides the Comments on Magna Charta ; there are divers Book Oases cited from Henry the fourth , Henry the sixth , Richard the third ; in the fourth part of Institutes , Kings Bench ; To which may be added Greislies Case , in the eighth part of Reports . And the first of Westminster doth add to the great Charter ; or at least explain it , in this . But the Mirror will tell us , it was an abuse , not to expound it , so largely before . And although the Writ de moderata misericordia , ( in the Register , and N. B. ) be founded on the Statute ; yet it seemeth clearly , but in affirmance of the Common Law . As appeareth , not only by Bracton and Fleta ; but by Glanvil , who did write before the Charter : and by all the Saxon Laws , which were the samplers to King Henry the first .

But how tender our Law hath always been , in matters that concern Estate or Liberty may well appear by all the Executions , grantable for Debt or Dammages .

The Merchant and the Staple , Statutes are and were by Statute , not by Common Law .

They seem as sweeping Rain , and Storms , that drive away the Body , Goods , and Lands in Fee , ( at time of Recognition ; or accrewing since : ) but none in Tail , but during life of him that was the Cognisor : Nor Copyhold , or Goods or Leases , for a Term of years ; but only what was in possession , at the Execution done .

They are fore-known , and therefore may be well avoided , by all such as do not choose their own destructions . And there is a tender care in Law , not only of exact , and punctual Recognitions ; and recording of them , but in case of forfeit , upon a Certiorari , sued forth from the Chancery ; and not before return thereof , a Capias , shall be granted ( on the Statute Merchant ) for the Body only ; if it be a Laic : and if Laic be not found , ( and so returned into the Kings Bench or Common Pleas ; ) then on pauze of divers months , the exigent may be awarded . But in Statute Staple , on the first Return of Certiorari , may the Execution issue forth , returnable into the Petty Bag ; of all it seems the worst , in this . But the Merchants Court , Aequitatem summam desiderat : although a kind of Peepoudres ; as Bracton and the Notes on Fortescue .

Upon a Recognizance a Capias doth not go ; before a Scire Facias be Returned into the Chancery . Then a Capias or a Fieri Facias or an Elegit ; at the choyce of Cognisee ; as in other Common Judgements .

And of these the fieri facias is the mildest , and the oldest , by the Common Law . It toucheth Goods and Chattels only : such as are the Parties Own ; not lent by , or Leased to another . For although the Sheriff find them , in the Parties Use and full Possession , as he thinks ; yet may he be a Trespasser in taking such ; and so may run the hazard of an Action ; ere he be aware . Nor did the old Levari facias , seize the Land : but Corn , or that which grew thereon .

An Elegit , hath its Name from his Election , or his Choice that sues it out : Who so concludes himself from other Executions . This did come by Statute ; not by Common Law : and toucheth Half the Fee , and all the Goods ; but yet with Salvo to Contenement : he must not lose his Oxen , or his Cattle for his Plough ; For then he cannot live and keep his Family . So Tender is our Law , for all Estates and Livelihood .

Nay this Extent must not be made by Sheriffs ; ( who may not divide a right ; ) but by a Iury of Inquest . And so must be Returned , and preserved on Record ; ( as the first Capias , with all mean Processe must , ) or else , it shall be nothing worth : as may appear at large , in the fourth and fifth parts of the great Reports ; Hoes and Fulwood ; with divers other Cases . And the second of Westminster , that giveth this Elegit , doth require both Extent of Lands , and prize of Goods to be Reasonable ; that is by Inquest of Twelve and so returned of Record . As is cleared in the Commentator . See also Littletons Parceners .

A Capias ad Satisfaciendum , taketh the Body ; but it is by Statute only : for it did not lye , by Common Law , in Debt or Dammages ; but only where the Original Action , was for Forceable Trespass ; Vi & Armis . Which is Now , crept into every Trespass . But of this Sir William Herberts Case , in the third part of Reports .

It may be forbidden again by Statute , as it was first granted : and that justly too for ought I know ; if other course be taken , for the payment of Just and Reasonable Debts . For the Capias ( as now managed , ) is a great mischief , and divers times , to the utter ruine of the Debttors whole Family . And yet but very little advantage to the Creditor : except the Debtor escape ( and so the Sheriff come to pay the Debt ; ) or except he dye in Prison , and the Plaintiff get an Elegit , for the Debtors Goods at his death , or half his Fee-Simple , which he had at the time of Judgement or after it . For an Action for Debt or Dammages , doth but respect the Person ; and the Law attendeth not ; what Lands were enjoyed at the Original , or before the Judgment . But an Action , brought against an Heir , may aim at Land , and so may charge it ; although he Aliene while the suit dependeth .

Neither shall I need to add , that all these Executions , must be sued out , ( For this is required by Law , except in the Kings Case : ) within one year and a day after Judgment . Yet they may be continued after ; and by a scire facias , be renewd or repealed ; till the Judgment have Full Execution . But this was also given by Statute : and to this may the Debter plead , although he cannot plead against an Execution . Yet , it may be suspended by a Writ of Errour and Recognizance , according to the Statute of Iames , and 3 Caroli .

And without a Writ of Error , after judgement , if the Defendant have matter to discharge him of the Execution ; still the Law is open for him . And he may relieve himself by a Writ of Audita Querela . And in case of Elegit , as soon as the Debt is satisfied ; the Debtor may enter on his Lands again : and if he conceive the Creditor satisfied by casual profits he may bring a scire facias ; upon which the Creditor may clear , how much he hath received of the Debtor's Estate .

Unto this occasional discourse , I shall only add that grand maxime of our Law , that Executions ought to be more favourable , than any other Process of Law whatever : Of which the great Judge upon Littletons Releases , and the second of Westminster in Edward the First .

And for Executions , for the Kings Debt's ; restrained by the great Charter ; I have little to add , to the Comment on the eight chapter of that Charter . But the twelfth of Articuli super Chartas , hath afforded a Writ commanding the Sheriff to accept of Sureties : else an Attachment lieth against him ; or the party may bring an Action against the Shetiff , that refuseth Sureties .

It is a maxime in Law , that a mans House , is his Castle : so that the Sheriff cannot break it open for an Execution . But upon a Writ of Seisin or Possession , the Sheriff , ( and other Officers , upon suspicion of Treason or Felony , ) may break open an House ; and so also in common Executions , where the King is a party . But in all such Cases first the Sheriff must request the door to be opened . And the First of Westminster , doth also require solemn demand of Beasts driven away into a Castle or Fort ; ( which is a kind of vetitum nomium which may be regained . By Withernam . )

Which Case I cite the rather , because of the Militia . For in such a Case the Sheriff or Bayliff shall not only force his Entry , by the Posse-Comitatus into such a Castle ; on the suit of a Subject : but it may also , come so far , that the said Fort or Castle , may be beaten down without recovery .

And although it be said , it shall be done by the Kings Command ; yet it is well known and seen by experience , that it is , and always was by Order of the Courts of Justice : and for this Semain's Case , in the fifth part of Reports , may be very well added to the Comments on the First of Westminster . By which we see how much the very Forts and Castles or Militia , must be subject to the Courts of Iustice : Not the King only , but in and by his Courts ; especially the Parliament , that may Command , Controul and Over-rule , all other Courts .

How tender the Law is in Case of Estate , Forfeit by Alienation , I have touched before , much is to be added : Nay in the worst and lowest Estates by Tenure of Will , ( of which somewhat also before , for a Fine Reasonable , &c. ) as by Copy ▪ where Alienation , and Wast against the Custom , with other Cases ( in the fourth part of Reports , ) may Forfeit to the Lord : but he cannot Out his Tenant at pleasure , ( especially him that sweareth Fealty ; ) but the said Tenant may sue his Lord , or bring his Action of Trespasse .

For Offices Forfeited , by Bargain and Sale or Brocage ; the Statutes are clear and just . To which may be added the Comments of Littletons Estates Conditional : as also for Forfeitures of Conditions .

It is expresly provided , by Act of Parliament , that no Sheriff or any other Person , do take or seize any mans Goods , ( much less may he take his Lands ; ) for Treason or Felony ; until he be duly convicted , or Attainted by Trial , Confession or Outlawry upon pain to Forfeit double ; to the party grieved , nor is this only in Richard the third , but in the first great Charter , and before it also , as was touched before .

Among the Saxons none were Outlawed but for Capital crimes : we find it often , in the Mirror , and in such the Out-law might be killed , by any that met him ; ( as might any man , Attainted of Premunire , that vast Chaos of confusion ; till Queen Elizabeths Time . ) I do not find any outlawry below Felony till about the Barons Wars ; and then it came not below an Action of Forceable Trespass , Vi & Armis .

But ( in the Common Pleas ) it came to lie upon Account , Debt , Detinue , Covenant , and other petty Actions : which the Mirrour would pronounce a most great abuse . But in Edw the third , there was some amends , in providing that none should kill an Out-law , but a Sheriff only with lawful Authority . Yet in inferiour Cases , Land Issues might be sequestred , in the Kings Hands till Appearance , or Reversal . Only in Treason and Felony , it forfeiteth as much ; as Attainder by Judgment .

But it may be Pleades and Reversed divers ways . And a Petty Misnomer or a misdate , is ground enough to Reverse it ; by a Writ of Errour . And of this the Books are full . But Nimin's case is a criticism in Chronology . One of the Sheriffs Returns was dated on the 8th . of Iuly in the second and third of Phil. and Mary ; but it was declared , there could be no such day , but in the 2d . and 4th . year , ( which was only , between the 6th . and 25th . of Iuly : ) yet this was enough , to Reverse an Attainder of Treason , by Writ of Errour . And in Favour of Life , our Law admitteth Pleas to Out-Lawries in Capitals ; there where in other Cases must be brought a formal Writ of Error .

I cannot deny but even by the common Law , upon Indictment for Treasom or Felony , the Goods and Chattels might be Inventored : but not seized as Forfeit till Conviction . Nor are Lands and Tenements Forfeit , till Attainder by Judge - And in case of Appeal , ( which related no time ; ) that is only Forfeit , which is possessed at the Iudgment . But upon Indictment ( dating the crime , ) the Forfeiture will reach to the crime committed : although there be Alienation before Judgement .

But no Forfeiture before Conviction ; no seizure before Indictment . And the Book of Assizes telleth us , the Judges took away , a Commission , from one that , under the great Seal , had power to arrest and seize on Goods , before Indictment .

And how tender our Law was , in this for Estate , it may be seen at large in Bracton and Fleta ; with the old Writ , not only in them , but in the Register also ; relating to the great Charter , forbidding all Disseisin till Conviction . Yet it requireth the Sheriff , per visum suum & legalium hominem , to Apprise and Inventory , all the Offenders Chattels , but with a double Salvo , both for safe keeping them ; ( and for this Security was to be given by the Bailiffs or the Township ; ) and for maintaining the person in Prison , with all his necessary Family . Salvo tamen eidem Capto , & familiae suae necessariae , quamdiu fuerit in prisona , Rationabili Esto verio suo . Which was not only Meat but Cloathing , &c. as hath often been adjudged in Edward the third , Henry the fourth and other Times . See the third part of Institutes , cap. 103.

It will not be long I hope before God stirreth up our Governours to Reform the crying sins , of this Kingdom ( and not only Gaolers ) in our oppressing grinding Prisons . But the Heathen Moralist hath also told us , that Divine wheels , are also grinding , and will grind to powder ; though they be slow in motion , as unwilling to revenge .

It is true , that Prisons should be by Law , both safe and strait Custodies ; nor should they admit such wandring abroad as some mens Mony doth procure . But although Recoveries on Record ; ( much lesse Discents ) do not bind men in Prison , or conclude them for want of claim : yet upon motion Prisoners may and ought to be brought to the Court , in Suits or Actions against them , in case of Judgement ; or where ever else , they ought to be in person present . And for this I may only referre to the Commentator on the continual claim ; and the Cases by him cited .

How unwilling our Law was to empair our Liberty , was touched before in the Capias on Debt . And although some latter Statutes do out-go our Common Law for Imprisonments ; yet it is still received , for a general maxim in Law , that Prisons should be Custodiae , not Poenae . And where ever any man is unjustly in Prison ; the Law affordeth him , more ways of getting out than his Enemies had to get him in .

He may have an Habeas Corpus ; and he may have a Writ de Homine Replegiando . He may have an Action of False Imprisonment . And may found an Action on the Great Charter : Or on it , may cause his unjust friend to be Endicted . And the Writ de Odio & Atia , was again revived though by Statute once it was forbidden .

And for these with Bayl by Judges or Justices ; Replevins by Sheriffs , &c. We have the Judgement of all the Judges on Articuli Cleri : and the Comments on the great Charter ; with the Statute of Marlbridge , and the first and second of Westminster . To which we may add the old Records , cited by the great Judge ( on Littletons Rents and Releases ; ) for Minors and Women with Child , being excused from Imprisonment ; not only in Judgment on Trespasses , but an Appeal of Robbery .

More curious yet , and tender is our Law in all that toucheth Life . The Mirror is full of Complaints , that in his time , ( and Horn did live about King Edward the first or rather the second for he nameth Edward the first : ) some sins were made mortal , which were but Venial . At was Rape ( with him ) till Edward the first . But none ( saith he ) can make a Venial sin , mortal , by any Statute without consent of the Pope and Emperour .

And besides the Saxon Laws cited before , it is considerable that one the first Normans ( called Conquerours ) Laws so often confirmed since , was this , that no man should be hanged or put to Death for Treason or other crime : but lose his Eyes ( or be exect ) or some way dismembred that so he might be a living Monument and spectacle Proditionis & nequitiae .

And of such there are many precedents , and of some Banished ; but of very few Hanged or put to Death till about the Time of Fitz-Osborn cited before . And Rape was punished with loss of Eyes , and exection ( in Bracton ) before the Statute of Westminster . The second but in Glanvil , it seemeth to have been as mortal as Murder or Burning .

From the Monk of Malmsbury we find that the Laws of Henry the first , did punish this and Theft , with loss of Eyes and exection . But of this Mr. Seldens Ianus , and his Notes on Hengham , shew the like Customs , continued in Winchester , and Walingford . Hanging is a late punishment for Theft , but some kinds of Felony did lose the Head . And for Adultery the Woman of old did lose her Ears and Nose : but she was burnt to Death , for killing her Husband ; which Caesar also observed of the British Gaulish Druids .

But our Ancestors allowed Bail , in Cases very high and hienous ; ( we must speak of Treason in another place , ) that I say nothing of Sanctuary , Abjuration and Clergy ; which was much larger than later Statutes have made it . But of this for rhe Peers in special ( although they could not read ) see the first of Edw. the 6th . and a later Statute of King Iames , for burning and whipping of Women who could not be Clerks as men .

It may be considered how our English mercy , may be continued some other way ; if this be put down .

Which is very disputable , and the plain truth is , it was much at the Ordinaries pleasure . For they were not fined , for refusing to come before the Justices ; who yet might reprieve the Prisoner , in case of such Refusal . And in Case of Sacriledge , it hath been declared at the Ordinaries choice to give or deny Clergy , for which an old Record of Edw. the 3d. is to be added to Poulters Case , with Cawdries and Biggens in the 5th . part of Reports .

This Case of Sacriledge is very considerable , being of all the most forlorn ; for being denyed the Priviledge of Sanctuary , it could not Abjure . For this was Appendant to Sanctuary : whither the Offended did first fly and then Abjure .

By the old Law the person Abjured must banish himself , into a Forreign ( yet a Christian ) Country . But in Henry the 8th . he was removed to some other English Sanctuary . And in K. Iames if it is taken away ; but what was allow●● in 35th . of Elizabeth , which remaineth yet , ( without Sanctuary ) for ought I know .

But to all Antiquities for Abjuration and Sanctuary in the Mirror St. Edward's and the Saxon Laws may be added , those of Molmutius the old Britain so long before Christian Religion . Of whom before , and yet again ere long .

Pain fort and Iure ( the pressing punishment in case of standing Mute in petty Treason and Felony ; ) with Martial Law ; are not so old , as our Ancestors Mercy . Yet in this they are merciful that they do not forfeit Estate ; or Attaint , and corrupt blood as do other Capitals . But when shall we live , to have no need of that Novel Pressure , of Law Martial ? When shall we again return to our Fore-fathers tenderness in all of Blood ?

And that not only in Pitty but Policy , both in this and other Nations . Who could else have made no great Title to many of their best slaves in Gallies and other employments . Which yet were not so good as our Mines might prove , if at least they were known how to be found , used and improved : As they may , and shall I hope ere many Ages more are lost , or worse than lost , in hating , spoiling , killing and devouring one another .

But of all little Islands near us , the Isle of Map ( a very Famous place of old , and a distinct Kingdom of it self ; though Appendant to this Conquest , ) seemeth to be worthy of Enquiry , for their Laws and Customs . Which are very much , more compendious , than Ours , in some Cases of Law , with all Pleadings and Process .

In Criminals they have strange Customs it being with them more Capital to Steal a Pig or a Capon , than an Horse or an Oxe . One reason , is because they love plain dealing , and be open-hearted , and they hate the man that Steals and Hides , much more than him , that doth it in on open way . I find it in a very good Author , and a great Lawyer ; who reporteth them , to be industrious and religious , true and very free , from begging or stealing .

All Controversies are determined in little time ; with less Expence , Pleading or Writing . Yet in Cases of unusual Weight and Doubt ; they have recourse to Twelve they make and call the Islands Keys : being above their common Deemsters ; whom they choose from among themselves . Their Bargains are compleated and comfirm'd , by the giving and taking , of as mean a matter as a Straw : as of old also per traditionem stipulae , from whence the phrase of stipulation came . But these were moulded also by our British Druids ; or of later date , our Saxon Ancestors .

I need not speak , how curious our Fathers were , in all their Process , touching Life : The Way was still as punctual , as clear , and plain , as was the End .

They loved to be just ; and to do justly .

Doth our Law condemn or give power to condemn any man , without Hearing ; or due Summons to Judgment ? I hope it never will .

A Great man of a good Name , standeth upon Record , as by Parliament , condemned to Death , without Hearing ; or Legal Summons . But there is a Blush , or a Vail of Oblivion , drawn upon it , by good Writers , as a stain and a shame , to the Parliament Rolls : yet as a just judgment on him , that had first moved , that another , might be so condemned . And he so perished , by that Law , which he would have made for others .

This seemeth also , to be written in the Law of Nature . And doubtless , the Sins of Sodome were as notorious to God , in Heaven , as any others , can be , to Men in Parliament . And yet , He would , and did , go down , to hear , and see , and proceed in a judicial way ▪

Nor would he condemn or execute , before he had , not onely , cleared his justice in himself , or to his Angels ; but also to Abraham , Lot , and other Lookers on ; that he still might be justified , both when he judgeth , and is judged . For he still did , and will , put his Actions on Man's Judgment .

This Process also towards Sodom , is by many of our old Lawyers , brought for the Pattern of our Laws ; in that especially , that none may be condemned without a Legal Hearing . And in this , and divers other things , do Bracton and Fleta borrow much from the Laws of Henry the First .

And be the Matter of Fact never so notorious ; yet may there be some Plea , that no man can foresee , or ought to forejudge before he heareth ; for all men may plead necessity , or force upon themselves ( as well as Right and Law ) for any thing they do amiss . And for this , and other Reasons , the Law doth suppose all men to be just , or excusable , till they be Legally heard and adjudged . This Difference , there is between the Judges and the Law-makers : For these ( they say ) do suppose all men to be evil ; but the Judges should suppose all men to be good till they be proved to be evil .

The Charge and Accusation , by the Law of Nature , ought to be clear , distinct , and particular , ( with time and place , or other Circumstances ) else the Party accused cannot discharge himself . Universalia non premunt omnino , vel opprimunt ; Generals do not press at all ; or else , they are apt to oppress .

The Witness , and the Evidence , must also be so clear , that these must condemn rather than the Judge , who sitteth as Counsel for the Party accused ; that so , he be not oppressed by , or against Law .

And besides the Judges , ( in most Cases , and in those also of Life , in Scotland ) there is Counsel allowed by Law , which may , and ought to be heard in Particulars of Law , or whatever may be justly disputable ; as Treason is by Statute . So , that of all Crimes , by express Acts of Parliament , it ought to have no Tryal , but clear and plain , according to the course and custom of the Common Law .

In such Cases , therefore , should the Iudges ( both in Law and Conscience ) sit , and be , instead of Counsel to the Party . This they owe to every Subject , though they had a special Obligation to the King .

Who , to his own Rights , ( and therefore to his Wrongs ) was an Infant in Law ? and so expresly declared in the Old Mirror , besides other Books . His Politick Capacity never , but his Person ever in Nonage , or supposed so in Law : for it may be a Child , or a Woman not able to know the Laws , and therefore always had , by Law , a Legal Mouth assigned , in Counsel of Law ▪ And so might any man else ( of old ) it seems , for matter of Demurrers , before Judgment ; or for framing of Legal Appeal ( by Writ of Error , or some other way ) from any Judgment whatsoever .

It is also the Law of this Kingdom , and of Nature , that though there be no Councel assigned ; yet may any , in a good manner move the Court to keep the Party from Injustice , or the Court from Error ▪ as Stanford , and the 3d. part of Institutes , Cap. 2.63 , and 101. And in such Cases it may be excused ( and not censured for rash zeal ) if some do , or shall appear , where or when , it may be thought they be not called .

Neither can the whole Parliament of England , I suppose , make any Court to condemn without lawful Accusers , or lawful Witnesses ; which , by express Acts of Parliament , is most especially provided in Case of Treason , in King Edward the Sixth , and Queen Maries Reign : and Tryal of Treason , was most expresly tyed to the course and custom of the Common Law . Nay , in full Parliament of Hen. the VIII . it was declared , that Attaint of Treason , in , or by Parliament , was of no more force or strength , than it was , or ought to be , by the Common Law : or this as good and strong , as that by Parliament .

Nor can the whole Parliament , I think , by the Law of Nature , and right Reason , make any ( Children , Ideots , or all others ) whatsoever , to be , so much as Accusers or Witnesses ; that I say not Indictors , Tryers or Judges .

By express Acts of Parliament , in Philip and Mary ; Edw. VI. Hen. VIII . Hen. IV. Hen. I. ( for , to him , doth the Mirror , and his Laws , lead us as to a clear Crystal Fountain of our Law Process ; ) none should suffer , for Treason or other Crime , but by lawful Accusers , lawful Witnesses , before those , that by Law , might receive Indictments ; which , with all Enquest , are to be made , by honest , lawful , able men , Neighbours to the Fact .

And the Law of Nature , with the Law of the Kingdom , giveth any man leave to except against some for Accusers , others for Witnesses ; and many for Tryers . It being the known Law of the Land , that one may challenge the Array ( either the principal Pannel , or the Tales ) as well as the Polls ; and that the lowest Subject , must be admitted , if he require it , to a perremtory challenge of divers , ( it is now , in most Capitals , limited to 20. but in Treason , it is , as at Common Law it was , to 3 Juries , or 35 ) which may be challenged , without any particular reason . And the Law of Nature also seemeth to hear all Reasons , and just exceptions , against any whatsoever .

Nor , shall I need to shew , how sutable our Law is to the Law of Nature , in providing , that no Infant , Ideot , Alien , Abjured , Perjured , or Attaint , Outlaw'd , or in Premunire be of any Enquest , or Iury ; especially in Case of Life and Death .

And for Tryers , besides all other exceptions ; This was thought enough that any of them had been Indictors : which maketh Fortescu so much to Glory in our Law , that putteth no man to Death , but by the Oath of four and twenty men .

I should mispend my time to shew it to be the great Law of the Kingdom , as well as of Nature ; that none may be Iudg , and Parties , in their own Cause ; which may ere-long be found perhaps , to be the reason , of the Three Estates ; and very much of our Common Law , which is punctual in nothing more , than in providing for a clear distinction of Accusers , Witnesses , Endictors , Tryers , and Iudges , especially in Cases of Treason ; which upon divers motions , of the Commons in Parliament , have been so often Enacted and declared to be onely Tryable by the course and custom of the Common Law , and no otherwise .

Nay , in Parliament it self , and Parliament Men , there was , and for ought I find , always , the like course observed . For , in Case of a Peer , the Custom of the Kingdom is , to proceed by a special Commission , to one as Lord Steward , and 12 others ( at least ) for a Iury of Tryors ; besides Accusers and Witnesses ; and a formal Indictment . And all from Record to Record ; or all this is Illegal , if it be onely by the House of Peers .

If Charge come from the House of Commons , they are as Indictors , being more than twelve sworn men , Trustees to the whole Kingdom ; and Neighbours to the Fact , or Party , or both . To which also there must be a legal proof by lawful Witnesses , or else the Charge will not suffice .

And in such Indictments , from the Commons ; the Lords are the Tryers ; and the King may seem as the Iudg ; but in other Courts also the Judgment goeth of course upon the Verdict ; and must be entred per Curiam , ( as adjudged by the Court ) although there be but one Judge ; or tho' his Mouth pronounce not the Sentence . But we are not yet come , to debate the King's Consent , to the Lords Judgment ; an Indictment from the Commons

It is also to me very considerable how the House of Commons could , or ever did Indict . I cannot deny them to have been a Court , and a Court of Record ; ( although some have seemed to question it ; and their Records are not so ancient as some others . ) But I have not fully understood how they ever did make , or receive a Formal , Legal Indictment ; when as they did not give a single Oath , much less , Empannel a Iury , or Enquest .

Yet some , there be , that without a Writt , or any written Commission , did and might do , this , Virtute Officii : But they be known , chosen , sworn Officers of the Kingdom , for such Purposes ; as the Peeples Bayliffs , Coroners , Sheriffs , Escheators ; and some Officers about the Forest ; who , by the Common Law , did Summon and Empannel Juries .

But so did not the House of Commons . How then , did they Indict ?

Of all Crimes committed in the House , they are , and were , so much , the sole Iudges , that they seldom use , to complain , much less to Indict any other .

And for any thing done abroad , I hope , they do not use to take Rumours and Reports ( though from their own Members ) to be sufficient for , or equivalent to a legal Indictment , on Oath : Seeing their scarce is , or can be any Case so notorious , but it may be pleaded unto by somewhat of Law , or Necessity .

And although I should yield the Commons to be the Masters of the Law in making it ; yet they pleased to allow others , to be Iudges in their Laws .

And if they reassume this also , yet it may be more easie to judge of some Law , than of any Fact ; at least as it may be cloathed , so as a curious search , or Enquest , may be requisite to lay it clear and naked .

Neither can I see , how it may be necessary , to proceed against any by force , or illegal Process , when it is easie , as well as just , to go rightly , as to do right .

For who can imagine a Case so dark and intricate , but it may be contrived so , that particular men may be Accusers ; and others Witnesses ? with a clear and real distinction between Indictors , Tryers , and Iudges ? most of all in Cases notorious and evident . For in such there may be less fear of the Iuries Verdict against Evidence ; or of the Iudges Sentence against the Verdict .

Or if this should happen in a Tryal ; is there not a most heavy doom appointed by Law for all Iurors that forswear themselves , and goe against their Evidence ?

Is there not a clear way of Relief , by Writ of Attaint ? Is it not worse than Death , to forfeit all Estate , and be thrown into Prison ; while both Wife and Children must be turned out of Doors and All ? For his House must be pulled down , his Ground be plowed up , and his Trees rooted out ; with loss of Franchise ; and with a perpetual Brand of Villany . This is the Common Law for a perjured Iuror ; and that also in Petty Cases : how much more might it be just in Case of Life and Death ?

And for Corrupt Iudges , our Law is very severe ; altho' we have much lost the Custom of the Grand Eyres in this also ; & King Alfred be long since dead ; who hanged 30 or 40 more unjust Judges , than Cambyses flead . And for that the Mirror may be a good Comment on some Passages , in Alfred's Life , by Asser : And if it be true , that Horn lived to the end of K. Edward ; it is much wonder , that on such occasion , he did not also mention some of those Judges by him so punished ; when there was scarce any left but good Iohn of Mettingham , and Elias of Bechingham . And of this the Dissertations of Fleta may be added to all before ; as that of Sir William Thorp and the Great Judg , in the third Part of Institutes , about corrupt Iudges , and the Iudge's Oath .

It is very considerable , how curious the Iews were in Creating , or rather Ordaining of Judges . For indeed the Phrase of Ordination seemed to be first raised from Them . For which I have little to add to Mr. Selden on the Eutychian , or Alexandrian Antiquities , ( as old as St. Mark the Evangelist . ) Nor can it be denied but the Jewish Judges and Magistrates had a very good Right ; and so used ( as we find in the Books of Moses , and the Kings , and Tirshatha's ) to Read and Expound the Law Moral as well as Iudicial . Nay , in this , they seemed to have some advantage of the Priests , or Levites that had work enough most times in that which was but Ceremonial . This may Expound those Pieces of Scripture , Old and New ; where we find some explaining Scripture ; being neither Priests , nor of the Tribe of Levi.

And the Iews Punishments , of evil Judges , are severe , and most remarkable ; nay , where all others were again restored to their Offices after Corporal Punishment , their Lord Chief Iustice or President of their Sanhedrim , or any Chief Iustice , could never be restored again after such punishment ; no , not to be as one of his inferour Colleagues . So just he ought to be and circumspect by daily experience , added to his own wisdom .

Our Laws are so just , and so good , in themselves , that there could not be be so much cause of complaints , in all our Gates , ( for such were the Iews Courts of Iustice ) if our Judges were such , as they should , and might be . And yet I cannot deny but that there be very great abuses among the Lawyers , and Attorneys , or Solicitors ; but if the Judges were as just , and wise as they may be , inferiour Officers would soon amend , or comply for Love or Fear , so much as would prevent Complaints and many of their Causes .

But it is the work of a God and not of a Man , to reform abuses , in all Courts of Justice . Hercules did never cleanse so great , so foul a Stable , or a Stall ; yet in this also , a wise and just Parliament , will do much , and will need none of my help , or advice .

How tender all should Delegates be , in making Delegates : But in nothing should they be more tender , or more circumspect , then in this of making Judges ; For in these of all Delegates , our law is most scrupulous .

Before the Statute of Merton , those that held by suit Service , were bound to appear in Person , because the Suitors were Judges , in causes not their own ; but by that Statute , they had power given , to make Attorneys ; but it was only , ad Sectas faciendas , to make , or follow suites for them , but not to sit as Judges : For , ( as the Commentator addeth ) they could not depute , or make Attornies in a place and act judicial .

I will not , I cannot say , the Commons of England cannot choose , or constitute their Judges ; but this I say , or believe , their delegates ought to be exceeding Curious ( I had almost said , exceeding Scrupulous ) in making Judges , and in bounding them to law , and Justice , both in way , as well as End . I must again repeat it ; That it may not seem enough to settle Judges , just and wise and good : Nor only to provide , that they may do what is just ( I speak of end ) but men are men , and ought in cases of such consequence , to have their Way , their Rule , and Square , ( by which they must proceed ) to be prescribed in their Patents or Commissions , that they may do justly too , as well as what is just .

To me it seemeth to be reason , or the law of nature unto men , that the Supreme Court , should so limit all inferiours , that it may not be left at large , to their list or pleasure , to condemn or sentence without Hearing , Accusation , Witness , or without such Process and Tryal , as shall be clear and plain , and so prescribed in the Patent or Commission .

If it be not so done , and expressed , I know not what appeal can be , but from the Court , before Judgment : For , what appeal , what writ of Error , or what Plea can a man frame upon their Judgment , who have no Rule , no way of process prescribed , and so cannot Err , Transgress , or Exceed their commission , no , not if they should without all accusation , proof , or witnesses condemn one to be sliced and fryed with exquisite tortures . They are Judges , but unlimited in way of Process , infinite and purely Arbitrary . No they are Men , and so they must be Rational and Iust ; which was presupposed by them that gave so vast power .

They may be Iust indeed , and so they should , but yet no thanks for this to their Commission , if it do not bound , and limit out their way and manner of Process , as it doth their work , and Object , or their End ; which was the wont of English Parliaments , who were Just and wise themselves , that they did see or fear it might be possible for their Committees , to be most Unjust and Arbitrary , if they were not most exactly limited .

Of all Commissions , none were more curiously drawn and Pointed out by our Ancestors , than those of especial Oyer and Terminer ; because the cases were not only heinous ( so they ought to be ; ) but such as for some extr ordinary cause emergent , seemed to be as it were Extra Iudicial , and such as could not stay , and abide the usual process of the settled Courts of Justice .

Yet of these also did our Fathers take most especial care , that they might be Iust ( in Way as well as End ) and that they might not be too High in Iustice ; for it seems that they had also learned an usual saying of the Antients , Summum jus est injuria : So that in divers of the Saxons Laws , we find High Iustice ( Summum Ius ) to be as much forbidden as Injustice . And I should tremble at it , as an ill Omen to hear Authority commanded , the the Kings Bench or any other Court , should be now Stiled the Bench of High-Iustice : For in Iustice , the higher men goe up , the worse , or so at least it was esteemed by our Ancestors .

Their constant limitation was in every such Commission , Thus and thus you shall proceed ; but still according to the Laws and Customs of England : Secundum Legem & Consuetudinem Angliae ; and no otherwise , that is , as Fortescu will say , you shall be pittiful in Iustice , and more merciful then all the world , besides this Kingdom . And if such a limitation were not expressed , this was enough to prove the Commission , Unjust and Illegal ; which is so well known to all Lawyers , that I need not cite N. B. or the Register Commissions , or Scrogs's case in Dyer , or so many elder cases , in Edward the 3 d. Henry the 4 th . and almost all Kings Reigns .

Nay , in King Iames , among the great debates of Uniting Scotland to England , when it was driven up so close , that instead of Secundum Legem & Consuetudinem Angliae , it might be Secundum Legem & Consuetudinem Brittanniae ; It was resolved by all Judges , that there could not be , that little change but of one word ( that doth so limit such Commissions ) but by consent of Parliament of both Kingdoms .

And in divers Parliaments of Ed. 1. Ed. 3. Hen. 4 th . there were many Statutes made , to limit all Commissions of Oyer and Terminer ; as that they must never be granted , but before ; and to some of the Iudges , of the Benches , or of the Grand Eyre . Nor those to be named by Parties , but by the Court : And with this usual Restriction according to the known clause of the Statute of Westminster the 2 d. in the Reign of Edward the 1st .

But the Printed Statute must be compared with the Roll , and with the 2 d of Ed. the 3 d. for else , there may be in this ( as in other Printed Acts ) a great mistake , by leaving out , or changing one particle : for that Clause , except it be for heinous offence , hath such influence into all the words before ; that by the known Common Law a Supersedeas doth lye to such Commissions , quia non enormis Transgressio ; as the Register may teach us .

And although by Law there may be granted a Commission of Association ; with a Writ of Admittance , of others , to the Iudges , assigned for Oyer and Terminer : yet in all those Commissions and Writs the Rule must be prescribed , quod ad Iustitiam pertinet ; and that also according to the Law and Custom of the Kingdom , which is so much the Law of Nature , that I need not wonder at the great Judg , who in all his Institutes , and so many Reports , maketh those words absolutely necessary to the work of a Lawful Commission .

And for more prevention , or Redress of injustice and Arbitrary Process , were our Ancestors so punctual in requiring Records of all Proceedings in the Courts of Justice ; which is so agreable to Reason , and the Law of Nature , That the whole Parliament of England , as I humbly conceive , cannot it self proceed in matters of highest concernment , but by Record . Much less can it Licence other Courts , to be without , or above Record in such Affairs .

It is so well known to be the custom of the Kingdom , that I shall not need to shew it in the Statute of York , in Edw. 2d . and many others , in affirmance of the great Charter , nisi per Legem Terrae ( But by the Law of the Land . )

And in Edw. 3d. it was , in full Parliament declared to be the Law of the Land ; that none should be put to answer but upon presentment before Iustices , or matter of Record .

And the 2d . of Westminster is very punctual in requiring Records for all legal exceptions , ( as well as other matters ; ) and provideth , that in case an Exception should not appear on Record , the Party must produce the Iudge's Seal ; which may be required by Writ , and cannot be denied ; no not in such Exceptions as the present Court do over-rule .

And for Enrolling Records , the same Statute provideth , That the King should not Erect Offices , or Elect Officers for Enrollment ; For that by the Common Law this did belong to the Courts themselves , and Judges therein : As to the Sheriff also , to Elect the County Clerk for Enrollments ; so that the King himself could not Elect him , as we find in Mitton's Case . So punctual is our Law , in all , concerning Rolls , Enrollments and Records .

Which is also the Law of Nature ; and for many Reasons . As for that of Appeal , to which all Courts on Earth must willingly submit . Nay Heaven it self admits Appeal , from its justice to its mercy ; so it would to Justice also by some Writ of Error if it could commit an error . But however , that its Judgments may be cleared to be just , it also proceedeth by Record . For God hearkeneth , as the Prophet saith , when ought is good , ( when they meet and speak well together ; a Record is made , and bound up as a Jewel ; ) and when evil also , some are Watchers to Record it . For the Books shall be opened , and we shall all be judged by the Record of Heaven , and our own Consciences , which are now foul Draughts , but shall then be as fair and clear as those of Heaven it self .

But in Courts on Earth , if there be no Records , there is scarce devisable a legal Traverse or Tryal , whether all be right , or appeal if any thing be wrong . For what Appeal can any man make from that which doth not appear ? but it is only a Transient Air or Breath , which may as soon be denied as it was spoken !

How can Errors , not appearing , be corrected or amended by the Parliament it self , or any other Court , but onely that keepeth Records of all our thoughts , as much as of our words or actions .

I may be tedious in shewing how our Law hath ever allowed Appeals in Ecclesiasticals ; They were agreed in the Assizes of Clarendon in opposition to Appeals Foreign , which were first attempted by Anselm , as some affirm , but the Date is later . And the Lord Dier , of Appeals , is now printed in the 4th . part of Institutes .

The Judgment of Delegates , on such Appeals , is called definitive : And yet not so but that it may be all redressed by a Court below the Parliament : for which we have the Commission of Review granted upon the Delegates ; nay and upon High Commission it Self , as by a Clause in that Commission appeareth . To which may be added Killingworth's Case , and divers others .

Of the Court Admiral , much I might add from the Laws of Olerom in Richard the 1st . and the Rolls of Henry the 3d. and Edward the 1st . of which also the Commentator on Littleton's continual Claim ; and the 22 Chapter of the last part of Institutes . How it lieth open to the common Law , and to daily Prohibitions , may be fully seen in its Complaints to King Iames , which were as fully answered by all the Judges .

It is no Court of Record , and so did all the Judges declare in 8 Iacobi ; yet it must keep Records enough to ground an Appeal ; which lieth from thence ( as from Courts Ecclesiastical ) to Iudges delegate ; of which the 8th of Elizabeth , and other Statutes .

County , Hundred , Baron Courts ; and those of Antient Demesne , ( with all Close Writs ) are not of Record . The Sutors are the Iudges ( as was said before ) in Cases not their own . And some have thought they did proceed ( much by fancie ) without legal Proof and Witnesses , till the great Charter , commanding all Bayliffs to put no man upon Oath , without faithful Witnesses . But we have found the Charter long before King Henry the 3d. And in that Phrase of Bayliffs ( which in France are Governours and Magistrates , as in eldest Towns or Cities with us ) some great Lawyers include all Iudges , as Fleta with the Mirror ; which also calleth Coroners the Peoples Bayliffs ; and the Sheriffs Returns are de Baliva .

These inferiour Courts being not of Record , held petty Pleas of Debt or Damages , under 40 s : ( Antient Demesn had other prviledges ) but not of forceable Trespass , Vi & Armis ( finable to the Crown . ) Yet these also must keep Copies or some such Records as may suffice for Appeals . For they may be questioned , and their Proceedings being denied shall be Tryed by Iury , and upon their judgments lyeth a Writ of false judgment ; not a Writ of Error .

But in the Case of Redisseison the Sheriff is Iudg by the Statute of Merton ; and a Writ of Error lieth on his judgment . But in Case of Debt , Detinue , Trespass , or other action above 40 s. where in the County the Sheriff holdeth Plea by force of a Writ ( or Commission ) of Iustices ; the Sutors are still the Iudges , and no Writ of Error , but false judgment lieth on them . Nor doth the Coroner's judgment of Out-Lawry in the County Court forfeit Goods till it be returned and appear on Record ▪ Nay , the Coroners Certificate , on a Certiorari , did not disable the Out-Law ( although the King might seize his Goods ) till the Return of the Exigent , Quinquies Exact .

But a Writ of Error is proper to Record , and from Record , and a Plea of Nul tiel Record is not tryable by Witness or Iury , but onely by it self in a Court Record . Such are the Sheriffs Turns , and from them ( as from Counties , Hundreds ) came the Court Leets ; which may be held by prescription against the Great Charter : In which Leets the Steward is Iudg ; as in the Turns the Sheriff and Bishop was , till the first Norman , who by Parliament exempted the Clergy ( as was touched before . ) But the Laws of Henry I. bring them again into the Seculars . So also the 10th . of Marlbridg ; and before it the Laws of Clarenden for all Barons , or Tenant in Capite to attend the Great Court till Sentence of Life or Member , which continued long in the Parliament also .

The Turn enquireth of Common Nusance , and of Felonies ; de Furtis & medletis , whence our Chance , or Chaud Medly ; hot Debate or sudden Fray : see the Notes on Hengham ) but not of Murder , or Death of Man ; which alone ( of all Felony ) belongeth to the Coroner . He was a very antient Officer , and ought to be made a Knight ; for which the Register and Rolls of Edward the 3d. where a Merchant , chosen Coroner , was removed , quia communis Mercator . He must have a good Estate , and might receive nothing ( of Subjects ) for doing his Office . But by late Statute he hath a Mark on Indictment of Murder : yet upon Death by misadventure he must take nothing . See the Comments on the 1st . of Westminster .

The Coroner's Court is of Record ; and he may take Appeals as well as Indictments ( upon view of the Body ) and must enter them , but cannot proceed , but deliver them up to the Iustices ( which is as antient as the Great Charter ) for the next Gaol-delivery , or the King's Bench sometimes also ; he is locum tenens to the Sheriff ; and he standeth when the King dieth . When also so many think there is no Sheriff ; but it may be more considered .

I must not stay in the Court of Peepoudres , ( incident to every Fair or Market , as a Court Baron to a Mannor ) although it be a Court of Record ; and a Writ of Error lyeth on its judgment ; for which Iones and Hall's Case in the 10th Part of Reports , and in the 4th Institutes .

I need not speak of Writs of Error from the Common Pleas to the Kings Bench ; from the King's Bench to the Exchequer-Chamber ; and from thence ( as from the King's Bench also ) to the Parliament ; or of the known Statute of Henry the 6th . making it Felony to steal , withdraw , or avoid Records , or any parcel of Record .

But of no Records , is the Law more punctual than in of extraordinary Cases , of Oyer and Terminer , which were more private oft , and less fixed , being transient on emergent Cases ; which yet being heinous , seemed to require most exact Records , especially because there might be Appeal so just and needful , if the Judges exceeded but one tittle of their Commission .

If it were discontinued or expired , then the Indictment and all Records were to meet in their proper Center at the King's Bench : but in other Cases Records of Oyer and Terminer were sent into the Exchequer . So in Edw. the 3d. As in Elizabeth , Results on charitable uses , and the like , were to the Chancery by Act of Parliament .

The great Seal was the Soul to inform and actuate the Body of Records in all exemplifications from the Rolls ; in all Writs Pattents or Commissions ; and the rather also , that by this nothing of moment might be hudled up , but duly weighed and considered , while it passed so many hands and judgments as it should before the Sealing .

Nor shall I add , that an Act of Parliament it Self is not pleadable in a Court of Record , but from Record , or under the Seal ; whence the old custom was to remove the Records of Parliament by a Writ of Certiorari into the Chancery ; thence , by the Lord Chancellor , into the Kings Bench ; and thence , by a Mittimus into the Common Plea and Exchequer ; with an usual Writ commanding all the Courts to keep and observe such Acts of Parliament , which of Old were Proclaimed by the Sheriffs , and were put under the Seal ; ( as we may see by the Proclamation now printed among the Statutes of Edw. the 3d. ) and they were not hudled into Print in those Days ; not of such vertue in Print as on Record , and under the Seal . For there were not then such Printers , or Copiers that ( without much caution ) our fore-Fathers durst trust with all their Lives and Estates ; which by one dash of a Pen the change of a not , a with , a to , a for or a from , might be soon destroyed or enslaved .

Much less then should a Court of Record be Created but by Record ; yea , and that be shewed under the Seal also . For when the Seal was moulded , our Ancestors ordained that no Jurisdiction should be grantable but under the Seal , which should be known , and obeyed by all the People ; as the Mirror discourseth at large .

In Edw. the 4th . it was resolved by all the Judges , in the Exchequer-Chamber , that no man could be a Iudg or Iustice by Writ ( which was also Sealed ) but by open Pattent , or a publick Commission . But the Lord Chief Iustice of England hath of late no such Commission or Pattent , yea a Sealed Writ ; and of Old he was also Created by Pattent till about the end of King Henry the 3d. if good Authors deceive me not .

It seemeth also somewhat disputable , whether he were not included in the Statute of Henry the 8th . for Commissions to the Judges , by Letters Pattent under the Seal .

However , the words are plain enough , for Iustices of Eyre ; which of Old were also by Writ , as those of Oyer and Terminer ; but now not to be but by Comission , or Pattent under the Great Seal .

Which Commission should also be read and shewed in Court lest there be some kind of Demurrer , or exception unto jurisdiction , which hath been in some Cases at the Kings Bench , and may be by Law to all now Judges by special Commission , except it be produced under the Seal , if the old Books deceive us not ; who do do not onely ascribe all jurisdiction to the Seal , but in all legal exceptions ever admit of that to the Iudg , if he be a Party , or have not jurisdiction , or be otherwise incompetent .

That the Parliament also will never Erect or Create any Court of Record , but by Record , and open Commission under the Great Seal , I do the rather believe , because the Seal is so proper and peculiar to the Parliament , being made by common consent ; ( of which the Mirror , and others at large ) and by such common consent used and committed to the special care of the Chancellor , or Lord Keeper of England , as he was called for keeping that which our Fathers esteemed as the Kingdoms Key or Clavis .

It is well known how King Henry the 3d. was brought to acknowledg , That among all great Officers the Lord Keeper or Chancellor did especially belong to the Choice of the Parliament : and Ralph Nevil among others refused to yield up the Seal to the King when it was demanded , saying that he had received it by the Common Councel of the Kingdom , and without their Warrant he would not deliver it ; of which both Matthew Paris , and Matthew of Westminster .

From the continual use of this Seal in Parliament , it is the Law and Custom of the Kingdom , that the Lord Keeper shall have place in Parliament still to be there with the Sael ( although he be often no Peer , and have no Vote but ) for making and Sealing of Charters , Pattents , Commissions and Writs framed by Parliament .

For although the Register ( made or continued by Parliament , ) be now so full that there be little need ; yet the framing of New Writs was a great work of Old Parliaments , as appeareth in the Books and Statutes , as in that of Westminster the 2d . de Casu consimili .

And as if the Parliament had made no Laws at all , but onely New Writs the Old Modus brancheth out all the Laws of Parliament into Originals , Iudicials and Executives , which all know to he the Division of Writs ; Those especially de Cursu , drawn by the Cursitors ; for Brevia Magistralia were let to be framed by the Masters of Chancery , as appeareth at large in Bracton and Fleta and in the Oath of the Six Clerks , or other Clerks of Chancery in Ed. 3 with that of Ed. 1. de casu continili ; in which Statute it is asol provided , that if the Masters could not agree in framing such a new Writ , they might , if they saw cause , respit the Parties till the next Parliament , that so it might be formed by Advice of all the great Lawyers of the Kingdom .

Yet besides this of making and sealing of Writs , there was another work , and great use of the Masters of Chancery in Parliament : Which was the Receiving of Petitions , ( As the Rolls of most times witness ) It being the old Mode ; and others accounted it somewhat against Reason , that Petitions should be taken and brought into the House , by those that were to debate and determine them , and so might at pleasure keep them Out , or too hastily might press them in .

Whereas they were to be filled up in course , and so to be debated as they were received , which was therefore entrusted to the care of known and sworn Officers of the Kingdom : Although of late , their work in Parliament be so strangely degenerate from that it was of old : when also beside Receivers , there were some appointed for Tryers of Petitions , who ( as it seemeth ) were to enquire of matter of Fact , expressed in the Petition , that it might be cleared and rightly stated before it came to be debated in full Parliament .

I do not deny but these Triers of Petitions were most frequently some of the Bishops , and other Barons : But by this I am not convinced , that the Lords had by Right and Legislative Power , or were the sole Determinors of all Petitions , as some would infer ; or that they were the sole Judges ; except also the Petty Jury that are Tryers of Fact , shall be esteemed the sole Judges of Matters of Law .

And yet I shall not deny , but Petitions concerning abuses or errors in Judicature were often deermined by the Lords as the great Judges ; but of error in the King's Bench , as Judges above the King , ( as was shewed before ) or from the Exchequer . In Queen Ellzabeths Time , for the seldom meeting , or great Affairs of Parliament , the Writs of Error from the King's Bench were by special Act of Parliament to be brought before the Judges of the Common Pleas , and Barons of the Exchequer , and by them to be determined .

But with these express Limitations , as the Law shall require ; other than for Errors to be assigned , or found , for , or concerning the Iurisdiction of the said Court of Kings Bench , or for want of form in any Writ , Process , Verdict &c. and that after all , the Records , and all concerning them , be remanded to the King's Bench , as well for execution as otherwise , as shall appertain ; and ( with this express Proviso ) That any Party agrieved by such Iudgment , in the Exchequer , shall and may sue in Parliament for a further and due Examination .

By which I do not see such Parties agreed were absolutely tied to Petition the Lords onely , although it were onely in a Case judicial . Yet I deny not but in Edward the 3d. there was a Committee made of a Bishop , two Earls , and two Barons to hear and determine all Petitions complaining of Delays or Grievances in Courts of Justice .

But with great Limitations , so that they must send for the Records and Judges , which were to to be present , and be heard , and then by good advice of the Chancellor , Treasurer , Judges ( and other of the Council ) to make an Accord ; yet so that all be remanded to the Judges before whom the Cause did first depend , who were then to proceed to Judgment according to the Accord of the said Committee .

And in Case it seemed to them to be such as might not well be determined but in full Parliament ; that then the said Records or Tenors should be brought by the said Commitee to the next Parliament ; it being the Common Law of the Kingdom , and so expressed in all the old Books , that all new , unwonted , difficult matters of consequence should still be brought and submitted to the Judgment of full Parliament , so that all our Iudges did , and ought to respit such Causes till the next Parliament , of which there be almost innumerable Precedents in all the Rolls .

Nay , in Richard the 2d . there was a Committee of Lords and Commons appointed to hear and determine all Petitions present in that Parliament . But afterwards it was adjudged and declared , That such a Commission ought not to be given ; committing or betraying the High Power of Parliament into a few private hands ; as we may learn out of Henry the 4th . beside other times .

Yet the Modi of Parliament admit that some extraordinary Cases , where the Estates could not agree ( or the greater part of the Knights , Proctors , Citizens , &c. ) There , by consent of the whole Parliament , the Matter might be compromised to 25. chosen out of all Degrees , and to fewer , till at length it might come to 3. who might determine the Case , except that being written it were corrected by Assent of Parliament and not otherwise .

And this seemeth to be the Law of Nature and right Reason , That Delegates should not delegate others , which was one reason why the Commons never made Pracies as the Lords did . Nor might any Committee so determine but there might be Appeal from it to the Parliament . Nor doth the Parliament it Self conclude so , but that there may be Appeal from its self to its self , even to its Iustice if it erre , or at least to its mercy by some motion or Petition .

In one Parliament of Richard the 2d . it was Enacted , that no man condemned by Parliament should move for Pardon ; but another Parliament 10 years after did annul this Branch , as unjust , unreasonable and against the Law and Custom of Parliament . For from this , which is the highest here , there still lieth Appeal from its Self to its Self . For which also , by the Laws and Customs of the Kingdom , there were to be frequent Parliaments , that so the errors or omissions of one ( being still human , and therefore errable ) might be corrected and amended in another .

By express Statutes of Edw. the 3d. we are to have Parliaments once every year , and oftner if need be . They were of Old three or four times a year , as may be found in all the Old Historians , speaking of the great Feats in the Militia in King Alfred's Time , they were to be twice a year ; and that at London as the Mirror affirmeth , which we compared with the Laws of the Confessor : And I speak also of King Edgars and Canutes Laws for the Celeberrimus Conventus ex qualibet Satrapta , which the Great Iudg applieth to the Parliament .

Eternity it self would be a Burthen unto him that is not pleased with his Being : so would Omnipotence to him that is unhappy in his acting : It was therefore goodness in God to limit man , as well in Doing as in Being .

It was also the Wisdom of our Ancestors to bound and limit out the Being , Acting , and continuing not onely of other Judges , but also of Parliaments .

Yet the Old Modi of Parliament agree in this , That a Parliament should not be Dissolved till all Petitions were discussed and answered ; and that after all there should be Proclamation made in some open place , whether any had a Petition or just Address to the Parliament ; and if none replied then it was to be Dissolved .

I need not shew the Care of our Ancestors , or former Parliaments for most strict observation of their own good Orders and Customs of Parliament , which are such so just and reasonable , that they well deserve a peculiar Discourse by themselves ; and suppose it not impossible to clear them more by the practice and consent of most Ages in this Kingdom , which might also be useful for the Times to come .

And although it might be possible to find some of their old custome fit to be changed ; yet my hope is they will retain and observe such Rules of right Reason , good Orders and Customs as may still make this an Happy Nation ; and that they will be mindful of their great Trust ; for which they are accountable : And however it may be in this World , yet they also must be judged at his coming , who shall bring every Work into Iudgment with every secret Thing , whether it be good , or whether it be evil ? And I am not ashamed both to long and pray for his coming ; who is King of Kings , and Lord of Lords ; The Prince of Salem , that is Peace , as well as King of Righteousness , Melchizedek , the Lamb upon the white Thone .

All the Creation groaneth ; and the Spirit and the Bride saith , come Lord Iesus , come quickly .

FINIS .