The antient right of the Commons of England asserted, or, A discourse proving by records and the best historians that the Commons of England were ever an essential part of Parliament by William Petyt of the Inner-Temple, Esq.

The FIFTH ARGUMENT.

From an Act of Parliament, An. 2 H. 5. that famous Prince, where it is declared and admitted, that the Com∣mons of the Land were ever a part of the Parliament, and so conse∣quently were part of the Parliament Annis 16, 17 Joh. 28, 32, 37, 42, 48 H. 3. all within the pre∣scription of the Borough of S. Al∣bans.

THE Commons of England, up∣on their claim or protesta∣station, had, as their undoubted and unquestionable right, and in∣herent priviledge, allowed and ad¦mitted in Parliament, that they had ever been a member of Parlia∣ment:

then were they a member of that 16 Joh. before-mentioned, of 17 Joh. 28, 32, 37, 42, & 48 H. 3. and that no Statute or Law could be made without their as∣sent.

The Record says, That so as * 1.1 hit hath ever be their liberte and freedome, that thar should no Sta∣tute, ne Law, be made of lass then they yaffe therto their Assent, con∣sidering that the Commune of your Lond, the which that is and ever hath be a membre of your Parlia∣ment, ben as well Assentirs as Peti∣tioners.

Yet was the affirmation of the Commons no other than a reno∣vation or memorial of the ancient Law of the Land, as is proved be∣fore, and more fully explained and confirmed by the Petition to the * 1.2 King and his Learned Council, and answer thereto in the Parliament

of 8 E. 2. The Record is not un∣worthy of a serious perusal. Er∣cheves{que} Eves{que} Prelatz, Counts, Ba∣rons, & autre gentz de la Comunyalte Dengleterre que tiegnent lour Manoirs en chief de nostre Seigneur, as well within the Forest as without, to which Mannors they had Gasz (Wast) appen∣dant, dont les Seignourages avantditz arentunt, by the acre, half acre, & per rode en approvaunt lour Manoirs. Whereupon the Ministers of the King made seisure thereof, Pur ceo qu' eux ne unt la licence le Roy d'entrer. Therefore they pray, that they may approver leur Manoirs & le povre pue∣ple eyser, &c. Responsum in dorso, Il ne put estre fait sanz novele ley la quele chose fere la Comunalte de la terre ne vult my uncore assentir, infra, Coram rege.

From hence I make these Ob∣servations.

1. It proves that the Law could not be altered without consent of

the Commons of England, though in a case particular to the King, as this was, for the Petition was co∣ram Rege; nor could the King and Commons, without the Lords. For * 1.3 E. 3. per avys des Prelatz & Grauntz de la terre fist respondre as les petitions des Communes touchantes la leye de la terre, que les leyes eues & useez en temps passez, ne le processe dycelle useez cea en arere, ne se purrent changer sanz ent faire novel Estatute, which as then they could not attend, but shortly would.

2. That they ought to agree to all new Laws, and that no Statute could be made without their assent. It is then remarkable, 1. That the Commons of England, as now we stile them, gave their suffrage and vote in the enacting and making of all Statutes and Laws in the time of the Progenitors of H. 3. which taken extensivè, is a very large pre∣scription

of right, for that King by the Statute of Assisa panis & cervi∣siae, * 1.4 made after 49. when it is pre∣tended the Commons began, viz. An. 51. tells us, That at his Par∣liament * 1.5 held the first year of his Reign, he had granted that all good Statutes and Ordinances, made in the time of his Progeni∣tors, and not revoked, should still be held. 2. But admitting the word Progenitors be restrained to two, which I conceive was never intended by the Law-makers, yet it cannot be denyed but that the Statute of Magna Charta, for so it is called 5 H. 3. Fitz-herb. Abrid. tit. * 1.6 Mordaunc. n. 53. and by Fleta, Lib. 1. Cap. 28. and all other Statutes made at least, temporibus Johannis & Ricardi I. Father and Uncle of Henry the Third, had the assent of the Commons in Parliament, to make them Laws.

Now the word Progenitors in the Statute, must I conceive go higher than Ric. 1. for Bracton a Learned Judge, who flourished in the time of Henry the Third, and so by a reasonable computation of time, may be supposed to have li∣ved in the latter end of the Reign of Ric. 1. or beginning of King John's, after he had declared to po∣sterity that he had bent his mind, ad vetera judicia perscrutanda diligenter non sine vigiliis & labore, and what∣soever he found Notatu dignum, he reduced in unam summam perpetuae memoriae commendanda, concludes this * 1.7 point thus. Cum legis vigorem ha∣beat quicquid de consilio & de con∣sensu Magnatum & Reipublicae communi sponsione authoritate Re∣gis sive Principis praecedente justè fue∣rit definitum & approbatum.

And so just and excellent was the ballance of the Constitution of

our legal Government, in prevent∣ing any order or rank of the Sub∣jects, to impose upon or bind the rest without their common con∣sent, and in conserving as it were an universal liberty and property to every individual degree of men, from being taken from them with∣out their assent, as the County Pa∣latine of Chester, ab antiquo were not * 1.8 subject to such Laws to which they did not consent; for as well before the Conquest of England, as after, they had their Commune Concilium, or Court of Parliament, by authori∣ty of which the Barones, Milites & quamplures alii (Rot. 44 H. 3. m. 1. dorso) Barones liberi homines & omnes alii fideles (Rot. Pat. 3. E. 1. m. 6.) or as the Supplication to H. 6. saith, The Abbots, Priors, * 1.9

Clergy, Barons, Knights, Esquires, and Commonalty, did with the consent of the Earl make or admit Laws within the same, such as should be thought expedient and behoveful for the Weal of the In∣heritors and inheritance of the said County, and no Inheritors or Pos∣sessors within the said County were chargeable or liable, or were bounden, charged, or hurt of their Bodies, Liberties, Franchises, Lands, Goods, or Possessions, unless the said County (or Parliament) had agreed unto it. And I dare under submission affirm, that neither this County Palatine, nor Durham, were ever subjugated to have their E∣states given away, at the good will and pleasure of the Earl or Bishop, under any notion or fan∣cy in those days of being their re∣presentatives in the Commune Concili∣um Regni, or that being dependant

Tenants, their consents were in∣cluded in their Lords assent: and if the Commune Concilium Cestrense, or Parliament, was deduced from Records, it would be of greater use to shew us as in a Mirror the Government of England in antient days, than what I have yet seen published by any Author.

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

4. That it was not in the pow∣er of all the Tenants in Capite of England, or the greatest part, who

were the Petitioners, though with the Kings consent, to bind and ob∣lige others, or to make or alter a Law, sine assensu Communitatis Regni, who had votum consultivum, and de∣cisivum, an Act of Authority and Jurisdiction, as well in assenting to spiritual Laws as Temporal, as may appear for an in••tance, in their Declaration or Protestation to E. 3. in Parliament.

Que nul estatut ne Ordenance soit fait * 1.10 ne grante au Petition du Clergie si ne soit per assent de voz Communes, ne que vous dites Communes ne soient obligez per nulles constitutions q'ils font pur lour avantage sanz assent de voz dites Com∣munes: Car eux ne veullent estre obligez nul de voz Estatuz ne Ordinances faitz sanz lour assent.

Fortescue cap. 8. pag. 40. tells us, Sed non sic Angliae Statuta oriri possunt dum nedum Principis voluntate sed & totius Regni assensu ipsa conduntur.

Et si Statuta licet tanta solennitate & prudentia edita, efficaciae tantae quantae conditorum cupiebat intentio, non esse contingant; Concito reformari ipsa pos∣sunt & non sine Communitatis & Procerum Regni illius assensu quali ipsa primitus emanarunt. And that this was the antient Law and Right of the Kingdom, appears by the answer of E. 1. an^o 22. of his Reign to the Petition of the whole Clergy of England; for the Clergy ha∣ving given the King medietatem om∣nium * 1.11 bonorum tam temporalium quam spiritualium, complaining that the Immunity of the Church laesa fuit & violata, petiit à Rege quosdam Arti∣culos (Rege jubente) jussit enim Rex postquam votis ipsius paruerant (in gi∣ving the Subsidy) ut ipsi ab eo pete∣rent remedia quae vellent. Et petierunt im∣primis ut Statutum de manu mortua, quod in praejudicium Sanctae Matris Ec∣clesiae fuit editum, deleretur Cui quidem

Articulo respondit Rex, quod idem Sta∣tutum de Consilio Magnatum suorum (so phrased by the Historian) fuerat editum & ordinatum, & abs{que} eorum Consilio non erat revocandum: but a more certain authority tells us, that the Statute was made, per Commune * 1.12 Concilium Regni, or Parliament, as appears by Rot. Claus. 7 E. 1. m. 5. dorso. Rot. Pat. 10 E. 1. m. 13. and then the Commons were unquestion∣ably an essential part, and joined in the making the Statute.

Notes

• * 1.1

  Rot. Parl. 2 H. 5. p. 2. n. 10. Nota. This me∣morable Re∣cord amongst several others as remarkable, is entirely left out in the Ex∣act Abridg∣ment of the Parliamwnt Rolls, publish∣ed under the name of Sir Ro∣bert Cotton, by Mr. Pryn.
• * 1.2

  〈…〉〈…〉
• * 1.3

  Rot. Parl. 22 E. 3. n. 30.
• * 1.4

  Pulton Stat.
• * 1.5

  Rot. Pat. 1 H. 3. m. 13. Rex Archiepis∣copis, &c. Mi∣liti••us & libere ten••ntib••s & omnibus fideli∣bus s〈…〉〈…〉s per Hi∣bernia••, &c. quod in sig••••m fidelitatis ••e∣str••, &c. liber∣tation Regao no••tro Angliae a 〈◊〉〈◊〉 vostro & no••is concessis de gratia nostra & dono in Reg∣no Hiberniae ga••deatis, &c.
• * 1.6

  Sed non si•• Ang∣liae Stat••ta ori∣ri possunt dum nedum Princi∣pis voluntate sed & tot••••s R••gni ass〈…〉〈…〉 ipsa cond••••t••r. Fortescue, cap. 8. pag. 40.
• * 1.7

  Bracton. Lib. 1. cap. 1. fol. 1. Inhibitio nè qui Magnates, viz. Com••s, Bar••, Miles, sea ali∣qua alia nota∣bills persona transeat ad par∣tes transmari∣nas. Rot. Claus. 3 E. 2. m. 16. dorso.
• * 1.8

  Kings Vale Royal of Eng∣land, fol. 9, 10, 11.
• * 1.9

  〈◊〉〈◊〉 〈◊〉〈◊〉 Which Supp••••∣cation, though it be not that I know of upon Record, yet I have seen very many Copies thereof, and particularly I have a Copy of it my 〈◊〉〈◊〉 which was written in the year MDLxxxxii. Ex li〈…〉〈…〉 〈◊〉〈◊〉 The 〈◊〉〈◊〉 〈…〉〈…〉aring Cestrensis Baronet••i ad me m〈…〉〈…〉, Anno Dom. 〈◊〉〈◊〉.
• * 1.10

  Rot. Parl. 51 E. 3. art. 46. Le Convocation n'ad ascun pow∣er a faire ascun chose a lier le Temporaltie. 20 H. 6. 13. Et issint le Rule 44 E. 3. 19. ••t ••ray q' n••l 〈◊〉〈◊〉 oblige le poe∣••••e 〈◊〉〈◊〉; c•••• q' est fait par con∣s••nt del poeple. Davis Rep. fol. 〈◊〉〈◊〉.
• * 1.11

  Henr. de Knighton de Eventibus Angliae lib. 3. pag. 2502. l. 24. An. Dom. 1294. 22 E. 1.
• * 1.12

  V〈…〉〈…〉. Coke 2. Insi. fol. ••5.