Rights of the Kingdom, Text (1 of 4)

Rights of the Kingdom · Text (1 of 4)

p. 1RIGHTS 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 p. 2Allegiance 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.

p. 3And 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 p. 4which 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.

p. 3But can the World, (this vain and frail and foolish World,) command, controll, and overawe 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 'tis 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 p. 4now 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.

p. 5Our 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, p. 6he 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.

'Tis 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 p. 7Precedents, 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.

p. 8It 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.

p. 9They 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 p. 10doe, 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 p. 11at 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.

p. 12And 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 p. 13the 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 p. 14Lord, 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 p. 15second; 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 40^th to the end, are very considerable.

And the 55^th 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 p. 16Charters 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 p. 17of 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 p. 18with other Felony, (as vvas 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, vvhichwhich may be considered as a good Comment on the usual vvords in Indictments against the Peace, and Crown, and Dignity, vvhichwhich by those Ancient Lavvs, vvas to be joyned vvith the publick common good and Justice of the Kingdom; So that Allegiance vvas ad Legem, to the Laws, the Kingdom, and the Kingdoms good or Profit, together vvith the King.

And in all the Lavv Books vve may read p. 19of 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 14^th 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, p. 20but 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 p. 21Mirror 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.

p. 22Unicuique! 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 vvell high as lovv (tam Majores quam Minores) must and ought submit to Judgment, Iustitiam habeant & Recipiant in Curia Domini Regis.

That this Expression may go lovver than the Court of Parliament, I can not deny; nor vvill 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 Lavvs, 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 vvhichwhich, and much more in those Lavvs, p. 23must be solemnly Svvorn 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 vvhen 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 Svvorn; 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.

p. 24If 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 p. 25Emperess 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 p. 26Kings, 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 p. 27or 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 p. 28Sigesbert; 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.

p. 29But 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, p. 30Place 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 p. 3127 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 p. 32Chronicles, 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.

p. 33Who 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 p. 34that 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 p. 35why 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 p. 36Illiads; 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, p. 37of 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 p. 38of 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 p. 39help 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 p. 40Hircol, 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 foreign, 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.

p. 41Yet 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 onelyonly 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 p. 42near 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.

p. 43I 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; p. 44which (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: p. 45Phoebus 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 p. 46and 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.

p. 47Come 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 p. 48veteres 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: p. 49and 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 p. 50Created, 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 p. 51Answer 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.

p. 52Some 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; ('tis 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 p. 53in 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, 'tis 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 p. 54knew 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.

p. 55Two 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, & p. 56prohibitus 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, ('tis 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 p. 57with 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, p. 58(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 p. 59the 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 p. 60& 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 p. 61from 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 p. 62Chosen, 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.

p. 63Ethelwolf, 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 p. 64known 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 p. 65his 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; p. 66and 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 p. 67Eadwardum; Quidam eligerunt Ethelredum, as the Monk of Worcester, besides Hoveden and Matthew of VVestmon. who agree also that at length the Arch-Bishops, cum Chorepiscopis, Abbatibus, Ducibus que 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 VVarham, 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 p. 68Parliament 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 VVigornensis, 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 Minores que 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 VVorcester, 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 p. 69Parliament, 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 p. 70suscipitur; 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, p. 71and 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, p. 72and 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 p. 73statuere & 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 p. 74is 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 p. 75no 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, p. 76in 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 p. 77be 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 p. 78to others which are not so obliged; and yet it is thought by some, that the main or onelyonly 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 p. 79no 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 p. 80on 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.

p. 81And 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 p. 82him, 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; p. 83donec 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.