Jus Anglorum ab antiquo, or, A confutation of an impotent libel against the government by king, lords, and commons under pretence of answering Mr. Petyt, and the author of Jani Anglorum facies nova : with a speech, according to the answerer's principles, made for the Parliament at Oxford.

THE PREFACE.

THere was a Book lately publish'd against Mr. Petyt and my Self, which not only treats us with Pe∣dantick Scorn, like those that are to Cap the Author within his Colledge: but its seems, to trample on the best Consti∣tution, our Government it self, under Co∣lour of its being New in the 49th. of Hen. 3.* 1.1 when it arose out of the indigested Matter of Tumults and Rebellion; and so not ha∣ving a Legitimate Birth, as not born in Wed∣lock between the King and his People, it may be turn'd out of Doors, by the Help of that Maxim.

Quod initio non valet, tractu temporis non convalescit.

How can a Bastard become a Mulier?

The Treatise which was to prove the Fact,* 1.2 was cried up for unanswerable; and per∣haps, 'twas imagined, that there was no possibility left for a Reply; since the Writer, who has render'd himself famous in his Ge∣neration

(as if he knew better how to ma∣nage a Design than an Argument) pass'd it about, only to such Hands as were obliged by Promise, if not by Principle, to conceal it.

But Mr. Petyt, and my Self, having by Accident seen bis Book, and observed some Heads which we intended to expose to the World: At last, out comes the happy Birth; yet 'twas hoped, that by that time, there might be Proselytes enough to defend it, with Noise and Acclamations, and Contempt of all Opposers, Records, Ancient Historians, and our Ancient or Modern Lawyers.

Though generally, in a Matter of Argu∣ment, we ought to leave to the Reader, the Censure of what we think we confute, with∣out remarking how absurd or criminal it is; yet when such Reflections are almost the on∣ly Arguments on the other side, and they, when pronounc'd, tanquamè Cathedrâ must have some Authority, 'tis fit, that even these trifles should have their due, provided they be answered with Decency of Expression: And we know in what manner the Wise Man advises us to answer some People.

I should have been glad if this Author'•• Civility had obliged me to treat him at ano∣ther Rate than I do; since I delight not i••

this way, nor think thereby to please such Readers as I would court to be Judges be∣tween us.

But why should I Apologize for the ma∣naging of this Controversie in a way whol∣ly New to me? Since the severest Expres∣sions are but retorted and transcrib'd from our Answerer's Original; and indeed it may well be an Original, for 'tis without Example.

If in any thing I seem intemperate, I may say with an Author well known, Ex∣cess of Truth has made me so.

Our Author's very Notions are Satyrs upon themselves; nor can any thing more expose a Man, than a seemingly Gigantick Endeavour to remove the fix'd Stars, the Lords from the Firmament, where each shines in his setled Station; and to take from the Commons of England, that Spot of Earth which they enjoy, and tread on.

While the Sons of Titan lay Pelion up∣on Ossa, one Mountainous Fiction upon another, the Mountains have a quick De∣livery, and bring forth Confusion to the Giants.

What has been the Product of his many Years Labours, I think may be

shewn in Miniature, under these Heads.

(1.) That the Norman Prince, against his reiterated Promises, and against the great Obligation of Gratitude to those of the English who assisted him,* 1.3 took away all their Lands and Properties, and left them no Right or Law.

(2.) That from the Reputed Conquest, and long before, under the British and Sa∣xon Governments, to the 49th. of Henry the Third; None came to the Parliaments or great Councils of the Nation, where Life and Fortune were disposed of, but the King's immediate Tenants in Chief,* 1.4 by Knights Service.

(3.) That even they came at the Discre∣tion of the King and his Council,* 1.5 ever af∣ter the 49th.

(4.) That the House of Commons began by Rebellion in that very year;* 1.6 nay, and the House of Lords too.

(5.) That the Constitution of the Lord's House,* 1.7 consists at this very day, in the King's calling, or leaving out from special Summons to Parliament, such Earls and Barons as he pleases.

(6.) That by vertue of the New Law imposed upon the People,* 1.8 by the Conque∣rour,* 1.9 none within the Kingdom, were Free-men

or Legal men, but Forreigners, who came in with him, being such as nam'd and chose Juries, and serv'd on Juries them∣selves, both in the County and Hun∣dred Courts, who were all Tenants in Mi∣litary Service.

None surely, but such as read without observing any thing, whose Books can't beat into their dull Brains, common Reason, and who never were acquainted with that ex∣cellent Comentator'•• practise, will think that I need set my self to argue against every one of these: 'T••••ll be enough, if under those Heads which I go upon to destroy his ill laid Foundations, I prove them upon him, for most of them confute themselves.

Truly, I cannot but think Mr. Petyt, and my self, to have gone upon very good Grounds; since, they who oppose them, are forc'd to substitute, in their Rooms, such pernicious ones, as would render the Foun∣dation both of Lords and Commons, very tottering and unstable.

Not to mix Lords and Commons to∣gether, I will endeavour to do right to the dignity of that Noble Order, and their Interest in Parliament, apart from the other.

The Constitution of the House of Lords our Antagonist, as I shall shew, will not allow to have been setled, till after the time of E. 1. if it be yet: Whereas, for a short Answer to his new Conceit, the Earl of Norfolk,* 1.10 in the third of H. 6. lays his Claim to, and has allowed him the same Seat in Parliament, that Roger Bigod his Ancestor had in that great Court in the time of H. 3. And, though, on the side of the Earl of Warwick his Competitor, 'tis urged, that the Earl of Warwick had the Precedency by King H. 4•• 〈◊〉〈◊〉 Command∣ment. 'Tis answered, Yat Commande∣ment yave no Title, ne chaungeth not the Enheritaunce of the Erle Mareschal; but if or unless hit hadde be done by Auctorite of Parlement. And, if Pre∣cedency were a setled Inheritance, which could not be alter'd, but by Act of Parlia∣ment, how can a fixt Right of coming to Parliament, be taken away otherwise? Though our Author supposes it to be at the meer Will and Pleasure of the King.

I take leave to observe, that the Right of Precedency from within the Reign of H. 3. nay, though before the 49th. is no way in∣consistent with the Belief, that many Lords who had Right, till a Settlement then

made, were left out afterwards, at the King's Pleasure, that is, had no special Summons; yet tbey could not be denied their Right of being there in Representa∣tion.

Be it that the Heires of Bigod, and himself,* 1.11 were Tenants in chief, which, as I thought at least, I shew'd formerly, could not, since the 49th. have Right to come to Parliament; quatenus, Tenants in chief; yet, when any of the Heirs came upon par∣ticular Summons to Parliament, that is,* 1.12 the King's Calling them out, as Singular Persons, they were to come as Tenants in Ca∣pite, in the manner as they be bounden, and have been of old time accustomed. And they that re∣fused, shouldbe amerc'd as is the Penalty.

By Manner is meant, (1.) in the same Quality, Lords as Lords; and (2.) in that Degree of the same Quality, which of old time had been accustomed.

(3.) The Manner also implies the man∣ner of enjoying any Power in Parliament. Thus the Lords were of old accustomed to enjoy the ordinary Power, in a Manner properly Judicial; and that the supream Manner too. Whereas the Commons had

of that, only what was needful to maintain their Priviledges; as to the Legislature, the Manner was the same, Neither was above, or could give Law to the other.

But in the judicial Power in Parlia∣ment, the Commoners were no more to be joyned with the Lords, than with the Te∣nants in Chief in the King's ordinary Court out of it:* 1.13 since the same Curia Regis, dele∣gated from the Lords, and answering to that which was pro more, us'd to exercise that Power, both in Parliament and out of it; so that wherever they sate, they were in the same Court: The Commons could not exercise this Power with them out of Par∣liament, therefore not in it.

Some will say, that no more is intended by this Statute, than that every one who receives Summons, must come, as was his Duty and had been of old.

Whereas 'tis certain, they who did not come as they were bound, were amerceable before at the Common Law: nor was it likely, that the King wanted a Law to make good that Prerogative, which to be sure he had over his Tenants by their very Tenures, and could seize upon their Lands for Contempt of his lawful Power, as the Bishops were sometimes threatned,* 1.14 Inde se capiet ad Baronias su. 8.

And this is enough against this Author, since he makes the King's Tenants in Ca∣pite, to have been all that came to Parlia∣ment, even by Representation, till the 8th. of Hen. 6.* 1.15 which 'tis his setled De∣sign to prove, though sometimes he contra∣dicts himself, and yields, that their Te∣nants by Knights Service came too.

Besides, the genuine Import of the Man∣ner, leads me to this sense, especially, as 'tis joyned with Bounden: For he who was a Commmoner till the Summons, was not bound to come as a Lord; nay, was not a Lord when he came; As appears by the Writs to the Lords Assistants, in the same Form with those which the Lords have. So that the Statute; in my sense, is manifestly in Affirmance of the Common Law.

I shall lay at the Feet of the Lords my Sentiments, in relation to their House, ei∣ther as I agree with, or oppose one, to whom that High Order, probably will not think themselves much obliged.

I shake Hands with him,* 1.16 and agree, that King Hen. 3. a little before his Death, began to leave out such Earls and Ba∣rons as he pleased; but I believe not this upon his Ground, which is, as if it were

meerly from Royal Authority, that is, the Prerogative which that King had from of Old,* 1.17 without the Actual Consent of the People: For I say, 'twas given him by Parliament,* 1.18 either in the 48th. or 49th. Nor doth Rex statuit in the least discou∣rage me in this Opinion, being many Acts of Parliament have pass'd with the joint Au∣thority of King, Lords and Commons; and yet the Enacting Part has had words of the same Import with this.

(2.) I differ from my Opponent, when he would have it believed,* 1.19 that Ed. 1. and his Successors observed this con∣stantly; or as he exprest the same thing before,* 1.20 The Practice was then and ever since accordingly.

And in this, he has dealt as unfairly by Mr. Camden, whom he quotes, as I doubt not, but 'twill be found, he has done by Mr. Petyt and me: For Mr. Camden tells us, That he has this out of an Author sufficiently Ancient, and thinks not, that he differs from the Authority which he re∣ceives, when he says, 'Twas thus only, do∣nec, till there was a setled Right. And this he makes 11 R. 2. but this the Do∣ctor vouchsafes not to take notice of.

But how cheap does he make his applau∣ded Reasonings, when he would prove it to be thus, ever to this very time, or the time, of publishing his Libel, because it was in the Reigns of Henry 3. Ed. 1. and his Successors, to the time of that Old Authors Writing; who, if we credit Mr. Camden, wrote before 11 Richard 2. of which he might be assured, by the way of Writing in several Kings Reigns re∣spectively, to which Antiquaries are no Strangers; or else by the Date annex'd in the same Hand.

But to prove that the Learned Claren∣ceux knew more of these things than this Pretender, I shall shew, that Rights were setled for coming to the House of Lords long since.* 1.21 But he will say, possibly, That he has anticipated and evaded my Proof, as my Arguments upon the grand Questi∣on were in his Belief,* 1.22 by saying in one place,* 1.23 In those times, probably, the King might omit to summon whom he would.

I think he swarms with Contradictions, as a Judgment upon his Vndertaking: For he says, That by what he calls the New Government, 'twas appointed and ordained,* 1.24 not only, that the Kings should

call whom they pleased: Which cannot pro∣perly be meant of Calling but once by Patent, or Writ, and the giving a Right from thenceforth to come afterwards; because there was and is yet a new Call to every Lord for every distinct Parliament.

But he is express,* 1.25 That all those Earl•• and Barons of the Kingdom of England to which the King thought fit to direct Writs of Summons, should come to his Parliament, and no others, unless by chance.

But pray, what a Reflection is this up∣on several excellent Monarchs Successors to H. 3. whom he renders Denyers of their own Acts, though under the Broad Seal?

But there is an Argument in the Par∣liament Rolls,* 1.26 upon the Question of Pre∣cedency above-mentioned, where 'tis taken for granted, that our Kings and Queen•• had not then such a Prerogative to do wrong.

If soch commandementz shold make right, and yeve title, it wer to hard, for yen shold it seme yat neither of my sayd Lords, Erls, Mareschal and War∣wyck, shold fro this day never sitte•• in Parlement without new Comman∣dement.

To tell the Lords, who are concern'd 〈◊〉〈◊〉 this, that there are many who have an ••••defeazable Right by Patent, and some, ••he first of whose Ancestors or themselves, ever had any more than the ordinary ••rits, without creating Clauses, or any ••her than such as when any Parliament ••as to be called, went out of Course, and Right, to them who were Lords before, ••ould be as needless as the Orators Dis∣••ourse of Tacticks to the Carthaginian Hero.

I shall be bold to offer to Consideration, ••herein consists the Right of such a Sum∣••ons; and I take it to be in the Prescrip∣••ion, though perhaps, none were setled in ••he Right of coming, till the 11th. of R. 2. Yet the time from whence they pre∣••cribe might be Earlier; and yet, whether Writ alone, or only as fortified with Pre∣••cription, gave the Right, here was what was not still left to Royal Pleasure on∣••y.

I conceive, that a Writ of special Sum∣••ons, of it's self, gave no man Right to come always after this as a Lord; for, if it made him not a Lord, it gave him no Right to come to the Lords House as such. And this I take to be evident, from the

Records of the several Summons of the tw•• Furnival's,* 1.27 Father and Son, who had th•• same Writs of Summons with the Lord•• and yet were no Lords; for, the lowe•• Degree of Lords, was Barons, and th•• Son pleads, that his Amerciament in a great a Sum as a Baron was against Law for that he neither held by Barony, ne•• Baro suit intitulatus, nor was called B••∣ron, nor obtained that name; which could not have been, if he was one of the Baron•• in Parliament: so that he could be no more than an Assistant, as the Assistants hav•• Writs in the same form with the Lords Wherefore, if any claim'd from Writ, 〈◊〉〈◊〉 must be by prescribing to have had it 〈◊〉〈◊〉 long time in his Ancestors, as amounts 〈◊〉〈◊〉 a Prescription by the Custom of Parlia∣ment, which is the Law of it. Besides, 〈◊〉〈◊〉 can be no Objection, that to a Prescription 'tis necessary, that it should have been i•• memorially, so as nothing to the contrary can be shewn; whereas the very first Wri•• may be seen, for this most plainly is diffe∣rent from common Prescriptions, both in the manner of it, and in the Reason of th•• thing.

(1.) In the manner. We find the Bur∣gesses of St. Albans to lay their Prescripti∣on

only from the time of the Progenitors of E. 1. which might be only from within the time of King John, or from the beginning of his Reign; if but from the later end, ••here were an hundred years for a Prescrip∣••ion.

(2.) But besides, this apparently dif∣fers in the Reason of the thing; so that it must needs have a different Law from com∣mon Prescriptions: For other things, the Ground of the Right, is the always having enjoyed either by a man's Ancestors, or by them whose Estate he has.

And if it were at any time in others, and it could not appear when they parted with it, 'twas a manifest Injustice for them to make such a Claim to have it; so that ••he appearing upon Record, when the first Writ was, is an Argument, that a Pre∣scription may lawfully be made in this Sense.

(2) There were Commonalties,* 1.28 Bodies contracted by Representation, that came to Parliament of Right, who yet were Lords in the Drs. Sense, being they held in Capi∣••e, as he supposes the Knights for the Coun∣••ies to be Grantz, the same with Magna∣tes, as they held in Capite. I am persua∣ded, in this he taught the most Learned,

what fell not within their Knowledge o•• Belief before, and for a while, made them quit that peice of Philosophy, Nil admira∣ri, in wondring at the Sagacity of the man. However, by this time 'tis wond'rous plain from his Demonstrations; that admit a Difference was made between Lords and Commons, with distinct Power, yet the Commons of Counties, Citties, and Bur∣roughs, were not only often called by the same Names,* 1.29 but were strictly Lords; and therefore had a joyn•• Power even in Judicature. For if they came before as Tenants in Capite, and that Tenure made them noble, 'twas to be ever in the same manner since;* 1.30 But the very Tra∣ders, nobilitated by the Dr. lay claim to and have allowed them a Right from Pre∣scription.

It may be objected from hence against my Notion of the Lords, which held in Capite▪ being pass'd by at the King's Pleasure▪ (tho others were not) that here a Pre∣scription, is laid upon the Tenure in Capite And it being from before the 49th. o•• Hen. 3. there could have been no such Settlement as both my Opposite and my self receive. He perhaps has set aside this

in his own Opinion, but I must confess, I can't embrace his new Sense.

However, I think it no hard matter to give a natural Answer: For, the Author cited by the faithful Mr. Camden, ac∣quaints us with no other Alteration, than what related purely to Singular Person•• ex tanta multitudine Baronum,* 1.31 Who be∣ing scarce to be numbred, made very great Disturbances, which required a new Mo∣del, and a Restriction of the Numbers; provided it might be with a just preservati∣on of the Rights of every one in particular: but, those great Bodies which before came by Representation, could admit of no change without a tendency to Destruction.

Agreeably to this Observation, the Inha∣bitants of St. Albans plead their Right to be represented in Parliament: not barely be∣cause of Tenure in Capite,* 1.32 but, Sicut caete∣••i Burgenses regni, as other Burgesses in ••he like Circumstances.

(3.) I hope I have some Reason for my Confidence, when I affirm, that I ought 〈◊〉〈◊〉 differ from this New Light, when it instructs us, that the King's appointing ••nd ordaining,* 1.33 That all those Earls and ••arons of the Kingdom of England, to which he thought fit to direct Writs of

Summons, should come to his Parlia∣ment, and no others; or, as he repeats the same, meaning, the Arbitrary Pra∣ctice of Henry the Third. Ed. the First and his Successors, constantly was the Constitution of the House of Lords. Having recited the words of Camden's Au∣thor, he goes on.

Having had one great Antiquary's Opinion,* 1.34 joyned with matter of Fact, upon the Constitution of the House of Lords, let us see the Opinion of ano∣ther, concerning the Origin of the House of Commons; so that the Con∣stitution of the House of Lords, answer•• to, or is in the same Sense with Origin▪ in Relation to the Commons: And, the making this to have been the Constitution of the House of Lords, and maintaine•• in Practice ever since, is as much as 〈◊〉〈◊〉 say, the Rights of that Order of men, a•••• not setled at this day; for the despotic Power in this matter, has been, if we be∣lieve him, constantly exercised, and tha•• of Right, ever since the 49th. of Henry the Third.

By the Constitution of the House 〈◊〉〈◊〉 Lords, that which is the only thing possib•••• to be here implyed by the word, is the Righ••

of the Lords to come as Lords, and the beginning, or first Establishment of it. For, the Constitution of an House, separate from the Commons, could not consist in the King's leaving out, or calling Lords at his Pleasure: since such Arbitrary Procedure with them, would only differ them in point of Interest from the Commons, whom he pretends not to have been omitted at the King's Pleasure, ever since the 49th. of Henry the Third: but, he denies, in effect, that any Lord, and by Consequence, even enough to make an House or distinct Assem∣bly of Lords in Parliament, had, or yet have, any Right.

Thus against the Laws of Friendship, he destroys the Successors of those Tenants in Capite, whom he so dearly lov'd, and cherish'd.

And it seems, courted a great Asserter of the Rights of that High Order, with a fawning Epistle, that he might the more ea∣sily betray them all with a Kiss of the hand,* 1.35 and

Your Lorships Most humble and obedient Servant,

••nto a Belief, that he could give all due Sa∣••isfaction.

In the Charge which I have drawn up, I have intended no Injury: if the Consequen∣ces will not hold, 'tis from the Error of my Judgment, not of my Will.

For my self, admit what I am im∣peach'd of by him to be true, yet, being I argue, that ever since the 48th. or 49th. of Hen. 3. no man had Right to come, but as at this day: If my Notion of what the Government was before, be false, 'twill do no harm; and, I hope it cannot be af∣firmed, with any Justice, that I am a new Government Maker, in relation to the present Frame; yet, I know that it has been whisper'd about, as if I would have this Government to be new modell'd, which I utterly abhor, and that more than my Accusers; the Ground of whose Accu∣sations have been chiefly my devoting my self to the Service of the admirable Consti∣tution by King, Lords, and Commons; the Rights of the two last, I have, accord∣ing to my Capacity, defended, being the•• have been controverted. But, surely n•• man dares be so presumptuous, to set him self against God's Vicegerent, by Divin•• Appointment, put over us, and that 〈◊〉〈◊〉 our great Happiness in all matters or Ca••∣ses. There are several Interests in our m••∣serably

divided Nation, and wise men may be of each Party; yet, if any such should wish ill to our gracious Monarch, or to Monarchy it self, both his Wisdom and his Honesty, were justly questionable. What Alteration of Property, the great Basis of a Nations Strength and Peace, would be upon a new Model, when Ambition an over-weening Opinion of a man's self, Co∣vetousness, nay, and Prodigality too, would make many strive to be uppermost, while they brought their poor Country under the greatest Slavery?

For my part, I shall not scruple to deli∣ver my self with the greatest Openness and Plainness of Heart.

The King is justly the Supream Head and Governour, in all Causes Ecclesia∣stical, as well as Civil; Long may he en∣••oy this his undoubted Right.

Serus in coelum redeat,* 1.36 diuque Laetus intersit populo precanti, Neve se nostris vitiis iniquumOcior Aura

Tollat.— Long may he live, and long in Peace command,

Monarch of Hearts, as of his native Land. Long be it e're the Angels nigh his Throne, By mounting up with him, leave us alone.

His Prerogative, no man or body of men, can take from him, which his excel∣lently devised Negative to all Petitions and Counsels, secures. And this makes it, that the Sanction of all Laws is from the King only: for what a man does by the Advice of Counsel, he does by himself; as much as a man acts freely in those very things, in which there is the special Assi∣stance of Grace, and Conduct of Provi∣dence.

For fear I should not be clear enough in my Expre••sions, though my Heart be clear in it, I will make the learned Bishop San∣derson speak for me.

He says, according to my real Senti∣ments,* 1.37 Cum dicimus penes unum Re∣gem esse jus condendarum legum, non••∣id ita intelligendum, quasi vellemus quicquid Regi libuerit jubere id con∣tinuò legis vim obtinere, nam & popu∣li consensum aliquem requiri mox osten∣dam.

Quin hoc est quod volumus, quod scilicet Plebiscita, Senatus consulta, cae∣teraeque Procerum, plebis, aliorumque quorumcunque rogationes, nisi regia in∣super authoritate muniantur, non obli∣gent subditos, nec habeant vim Legis; quibus tamen maturè, & ritè prepara∣tis, simul ac Regis accesserit authoritas, legis nomen, formam, & authoritatem protinus accipiunt, incipiuntque statim ac promulgatae fuerint subditos obliga∣re. Cum igitur illa sola censenda sit cu∣jusque rei causa efficiens principalis, & sufficiens, quae per se, & immediatè pro∣ducit, & in materiam preparatam intro∣ducit eam formam, quae illi rei dat no∣men & esse, etsi ad productionem ipsius effectûs alia etiam concurrere oporteat, vel antecedere potius, ut praevias dispo∣sitiones quò materia ad recipiendam for∣mam ab agente intentam aptior redda∣tur, omnino constat quotcunque de∣mum ea sint quae ad legem rectè constitu∣endam antecedenter requiruntur volun∣tatem tamen Principis (ex cujus unius arbitratu & jussione omnes legum ro∣gationes aut ratae habeantur aut irritae) esse solam & adequatam publicarum le∣gum efficientem causam.

Besides this, I have, in Sincerity, sub∣scribed to his Majesty's Power in Call∣ing, Proroguing, and Dissolving of Parli∣aments: and, this were enough in rela∣tion to our present Controversie, being only of Parliamentary matters.

But in short, to offer at the Flower of all other Flowers of the Crown, the King can neither do nor suffer wrong: but, like God Almighty, dispenses his Blessings to the inferiour World, while he sits above, in an impeccable, impassible, im∣mortal State. God is not the Author of Evil, nor can he suffer by the Iniquity of M••nkind; And, whatsoever Act preceeds from the King's Ministers, or what∣ever Malice be in the Heart of any of his Subjects, the Law, that Angel, with a flaming Sword, de••ending his Throne, will not suffer it to affect him. Nay, if through Misunderstanding of the Law, it should happen, that a King go con∣trary to his own Justice, 'tis as if no such thing had been done.

So,* 1.38 i•• he having an Estate in Taile Alien, though from a common Person, it would work a Discontinuance; yet, from him it has no Effect, because it would be a wrongful Action: Though he

has more Power than any Subject, yet Subjects may be, and are more able to do Mischief.

And, for a full Proof, what Confidence the Law has always had in the King's doing nothing in his own Person, but what is highly fitting, though an effect should follow upon a rigorous Action of his; as if he should kill an innocent man, with his own hand, there never was any Remedy. And this was taken for Law, as long since, as the Confessor's time. Nor is it to be imagined, that William the First, and his Successors, re∣••eded from this Power, how little soever ••hey exerted it.

In that famous Case where the Con∣fessor,* 1.39 impeach'd Earl Godwin of Trea∣son, 'tis urged by the great men of God∣win's Party, that he could not be a Traitor to the King, because he was never ••ied to him by Homage, Service, or Fealty. 'Tis answered, and not replyed ••o on the other side, That no Subject ought Bellum contra Regem in appellatione ••uâ de lege vadiare, could not lawfully demand the Battail against the King Appellant, Sed in toto se ponere in ••isericordia Regis, but must wholly yield

himself to the King's Mercy. In this Case, though the Party might prove him∣self, against a Subject, to be innocent▪ yet there was no way of Tryal against the King, the Appeal being the only Tryal•• and that required Battail: but a ma•• ought rather to lose his Life, than strik•• his King, to whom he owes his Protection▪ and Defence from Rapine, as the King i•• the great Executer and Preserver of th•• Laws.

Though this Case is of the King's ap∣pealing, yet if a Subject should presume t•• be Appellant against his King, for th•• Death of his nigh Relation, the Reason holds, and, surely 'twould be very ab∣surd, for an Indictment to be brought in the King's Name, who has Jus gladii against himself; others could not execut•• the Judgment upon him: and, I take it no man can be compelled by Law, to b•• felo de se.

But, what need have I to say any thing on a Subject, which every man is bound b•• his Allegiance not to controvert?

I shall only observe, That the Disput•• between us, can be no more than wh•••• Right one Subject, or body of Subjects has to impose upon another. Whether 〈◊〉〈◊〉

••o, the Kings of England, have always had a Council in matters of Legislature, we have no Difference; the only Que∣stion is, who were of the Council; but, if as 'tis argued on the other side, Te∣nants in Capite were the only Council; and, if I prove, that the House of Lords succeeded to the whole Power of such Te∣nants, and these can have no more than they had; he that makes the Tenants the only Council for the Legislature, takes away the King's Negative Voice: for that the Lords have, in that Jurisdiction, which they enjoy upon that old Right of the Tenants in Chief: and no King pretends to the Trouble of having a Ne∣gative in matters of ordinary Judica∣ture.

But, besides this which I have answer∣ed, there is a Charge of being an Ene∣my to the Government by Law establish'd in the Church; for which, we must consi∣der, that the Government, in this Respect, is made up of the Laws, and the Offi∣cers in it. For the Laws, I dispute none of them, because I acknowledge the Autho∣rity which made them: and, whether 'tis advisable, that any of them be altered, I leave to the Supream Wisdom of the Na∣tion.

For the Officers, I quarrel not at the Chief, the Order of Bishops, nor yet at the Ecclesiastical Jurisdiction, upon the Reason already given; and, my Proof that they have this by Law, perhaps, is Particular: truly, I conceive it to be a great Mistake, that the Statute which took away the High Commission Court, took away all Ecclesiastical Jurisdiction; for, only the part relating to that Court, is repealed; and then the first of Eliza∣beth, having revived the 28th. of Hen. 8. the former Power, called Ordinary Pow∣er, is left entire, being provided for by the Statute of H. 8. Which, amongst other things, Enacts, That every Arch-bishop, and Bishop of this Realm,* 1.40 and of other the King's Dominions, may minister, use, and exercise, all, and every thing and things, pertaining to the Office or Order of an Arch-bishop, and Bishop, with all Tokens Insigns and Ceremonies thereunto lawfully belonging.

It may be said, That still I say no∣thing of the Divine Right of Church Officers, and Power; but, that I may step as far as can reasonably be expected from a Lay-man, I acknowledge, that there is a Divine Right for Church-Officers,

and Spiritual Power distinct ••••om the Civil.

I cannot now but hope, that I have said ••nough to render me fit to be heard upon ••y first Subject, in which, I have follow∣••d the Authority of the great Fortescue, ••ho taught the World long since, (nor is ••his man of Letters, too good to learn of ••im) that in all the times of these seve∣••al Nations and of their Kings,* 1.41 this Realm was still ruled with the self∣••ame Customs that it is now govern'd with all.

Which, if Mr. Selden had taken in ••he Genuine Sense, as meant of the Go∣vernment or Constitution, which is the Foundation of all particular Laws, he ••eed not have been at so much Pains in his Comment hereon.

If I find any thing more expected from me, either in Vindication of my self, or ••n more fully drawing my Adversary in ••is proper Colours, and admirable Fea∣tures; the first I shall do for the sake of Truth, and if I can get as much vacant time from my Studies and Practice in my Profession,* 1.42 as it seems he has had from ••is, I may do the other, if it be only for Diversion.

I am sensible, that want of time, or of Health, to give the finishing Strokes to this rude Draught, are of themselves but poor Excuses to a Reader, who would doubtless be content to stay till he could see some thing more correct, but when my delay would give time for so much growing Mischief as has been sent abroad, to spread it self even such an Antidote as I now offer may be accepted, till Mr. Petyt has fully prepar'd his Catholicon, which will per∣suade them who have been imposed upon with Noise and Nonsense, to shew their Indignation at their own and their Teach∣ers Credulity.

'Twould be Vanity in me, to run the Parallel between our Author's Magisteria•• Assertions and my Proofs; but he glo∣ries much in taking all from the Fountain head of Original Records, whilst I tru∣ly am thankful to those Friends that communicate to me Transcripts, so faith∣ful, that even he himself cannot pick an Hole in any of them.

The Records of the Tower, and of the Exchequer, I gratefully acknowledg•• to have been received from the benefici∣al Industry of my ever honoured Friend Mr. Petyt; and the true Copies of

Dooms-day Book, are owing to the wor∣thy Knight, Sir John Trevor, and to the learned Gentleman, Mr. Paul Bowes, of the Temple, whose Father was Executor to the indefatigable Antìquary, Sir Simon D'Ewes.

And, surely no man need be ashamed of such Assistances.

Thus, like the old Roman accus'd of ••nriching himself by ill means, have I ••rought before my Judges, the innocent In∣••truments of my small Improvements. Is ••here Witchcraft in any of these?

Notes

• * 1.1

  Against Mr. Petyt. p. 110.
• * 1.2

  Against Jan. &c. p. 1. Matter of Fact only.
• * 1.3

  Against Mr. Petyt. p. 29, 30, 31, 32, 33, 34, 35, so p. 176.
• * 1.4

  ib. p. 39.
• * 1.5

  ib. p. 79. & 228.
• * 1.6

  ib. p. 210. 228. & 229.
• * 1.7

  ib. p. 227. 228. 229.
• * 1.8

  p. 29.
• * 1.9

  p. 39.
• * 1.10

  Rot. Parl. 3. H. 6. n. 12. p. 228.
• * 1.11

  Jan. Angl. faci••s nova p. 257. & 262.
• * 1.12

  6 R. 2. cap. 4. All Singular Persons and Commonalties which shall from henceforth have the Summons of Parliament. &c.
• * 1.13

  Vid. infra in the bo∣dy of the Book. p.
• * 1.14

  Vid. 4. ••ust.
• * 1.15

  Against Mr. Petyt. p. 42.
• * 1.16

  Against Petyt. p. 228.
• * 1.17

  p. 229.
• * 1.18

  J••es Rep. f. 103. concern∣the Earl∣dom of Oxford. Princes Case 8. Rep.
• * 1.19

  p. 228. supra.
• * 1.20

  p. 227.
• * 1.21

  Against Mr. Petyt. p. 175.
• * 1.22

  Against Jan. &c. p. 47.
• * 1.23

  Against Mr. Petyt. p. 227.
• * 1.24

  ib. p. 110.
• * 1.25

  p. 227.
• * 1.26

  3 H. 6. p. 12.
• * 1.27

  Jan. Angl. at the lat∣ter end.
• * 1.28

  Rot. Par••. 8 E. 2.
• * 1.29

  Yet I take it, that such Tenants in Capi∣te, had no share in the Judicature, because then 'twould have con∣tinued still.
• * 1.30

  6 R. 2. c. 4.
• * 1.31

  Mat. Par. Quasi su•• numero non cadebat.
• * 1.32

  Rot. Parl. 8 Ed. 2.
• * 1.33

  p. 227.
• * 1.34

  Against Mr. Petyt. p. 228.
• * 1.35

  Vid. his Letter to the Earl of Shaftsbury.
• * 1.36

  Hor. Ode 2.
• * 1.37

  Sanderson de obliga••i∣one Consci∣enti••, Prae∣lectio 7. p. 189.
• * 1.38

  Plowden's 〈◊〉〈◊〉.
• * 1.39

  Tit. of Honour fo. 525.
• * 1.40

  28 H. 8. ••. 16.
• * 1.41

  Fortescue p. 38. 6. As transla∣ted alrea∣dy.
• * 1.42

  His Letter to the Earl of Shaftsbury.