of the King I take leave to observe that the Right of Precedency from within the Reign of H. 3. nay though before the 49th is no way inconsistent with the Belief that many Lords who had Right till a Settlement then made were left out afterwards at the King's Pleasure that is had no special Summons yet tbey could not be denied their Right of being there in Representation Be it that the Heires of Bigod and himself Jan. Angl. faciâ—s nova p. 257. 262. were Tenants in chief which as I thought at least I shew'd formerly could not since the 49th have Right to come to Parliament quatenus Tenants in chief yet when any of the Heirs came upon particular Summons to Parliament that is 6 R. 2. cap. 4. All Singular Persons and Commonalties which shall from henceforth have the Summons of Parliament c. the King 's Calling them out as Singular Persons they were to come as Tenants in Capite in the manner as they be bounden and have been of old time accustomed And they that refused shouldbe amerc'd as is the Penalty By Manner is meant 1. in the same Quality Lords as Lords and 2. in that Degree of the same Quality which of old time had been accustomed 3. The Manner also implies the manner of enjoying any Power in Parliament Thus the Lords were of old accustomed to enjoy the ordinary Power in a Manner properly Judicial and that the supream Manner too Whereas the Commons had of that only what was needful to maintain their Priviledges as to the Legislature the Manner was the same Neither was above or could give Law to the other But in the judicial Power in Parliament the Commoners were no more to be joyned with the Lords than with the Tenants in Chief in the King 's ordinary Court out of it Vid. infra in the body of the Book p. since the same Curia Regis delegated from the Lords and answering to that which was pro more us'd to exercise that Power both in Parliament and out of it so that wherever they sate they were in the same Court The Commons could not exercise this Power with them out of Parliament therefore not in it Some will say that no more is intended by this Statute than that every one who receives Summons must come as was his Duty and had been of old Whereas 't is certain they who did not come as they were bound were amerceable before at the Common Law nor was it likely that the King wanted a Law to make good that Prerogative which to be sure he had over his Tenants by their very Tenures and could seize upon their Lands for Contempt of his lawful Power as the Bishops were sometimes threatned Vid. 4. â—ust Inde se capiet ad Baronias su 8. And this is enough against this Author since he makes the King's Tenants in Capite to have been all that came to Parliament even by Representation till the 8th of Hen. 6. Against Mr. Petyt p. 42. which 't is his setled Design to prove though sometimes he contradicts himself and yields that their Tenants by Knights Service came too Besides the genuine Import of the Manner leads me to this sense especially as 't is joyned with Bounden For he who was a Commmoner till the Summons was not bound to come as a Lord nay was not a Lord when he came As appears by the Writs to the Lords Assistants in the same Form with those which the Lords have So that the Statute in my sense is manifestly in Affirmance of the Common Law I shall lay at the Feet of the Lords my Sentiments in relation to their House either as I agree with or oppose one to whom that High Order probably will not think themselves much obliged I shake Hands with him Against Petyt p. 228. and agree that King Hen. 3. a little before his Death began to leave out such Earls and Barons as he pleased but I believe not this upon his Ground which is as if it were meerly from Royal Authority that is the Prerogative which that King had from of Old p. 229. without the Actual Consent of the People For I say 't was given him by Parliament Jâ—es Rep. f. 103. concernthe Earldom of Oxford Princes Case 8. Rep. either in the 48th or 49th Nor doth Rex statuit in the least discourage me in this Opinion being many Acts of Parliament have pass'd with the joint Authority of King Lords and Commons and yet the Enacting Part has had words of the same Import with this 2. I differ from my Opponent when he would have it believed p. 228. supra that Ed. 1. and his Successors observed this constantly or as he exprest the same thing before p. 227. The Practice was then and ever since accordingly And in this he has dealt as unfairly by Mr. Camden whom he quotes as I doubt not but 't will be found he has done by Mr. Petyt and me For Mr. Camden tells us That he has this out of an Author sufficiently Ancient and thinks not that he differs from the Authority which he receives when he says 'T was thus only donec till there was a setled Right And this he makes 11 R. 2. but this the Doctor vouchsafes not to take notice of But how cheap does he make his applauded Reasonings when he would prove it to be thus ever to this very time or the time of publishing his Libel because it was in the Reigns of Henry 3. Ed. 1. and his Successors to the time of that Old Authors Writing who if we credit Mr. Camden wrote before 11 Richard 2. of which he might be assured by the way of Writing in several Kings Reigns respectively to which Antiquaries are no Strangers or else by the Date annex'd in the same Hand But to prove that the Learned Clarenceux knew more of these things than this Pretender I shall shew that Rights were setled for coming to the House of Lords long since Against Mr. Petyt p. 175. But he will say possibly That he has anticipated and evaded my Proof as my Arguments upon the grand Question were in his Belief Against Jan. c. p. 47. by saying in one place Against Mr. Petyt p. 227. In those times probably the King might omit to summon whom he would I think he swarms with Contradictions as a Judgment upon his Vndertaking For he says That by what he calls the New Government 't was appointed and ordained ib. p. 110. not only that the Kings should call whom they pleased Which cannot properly be meant of Calling but once by Patent or Writ and the giving a Right from thenceforth to come afterwards because there was and is yet a new Call to every Lord for every distinct Parliament But he is express p. 227. That all those Earlâ— and Barons of the Kingdom of England to which the King thought fit to direct Writs of Summons should come
shew their Indignation at their own and their Teachers Credulity 'T would be Vanity in me to run the Parallel between our Author 's Magisteriaâ— Assertions and my Proofs but he glories much in taking all from the Fountain head of Original Records whilst I truly am thankful to those Friends that communicate to me Transcripts so faithful that even he himself cannot pick an Hole in any of them The Records of the Tower and of the Exchequer I gratefully acknowledgâ— to have been received from the beneficial Industry of my ever honoured Friend Mr. Petyt and the true Copies of Dooms-day Book are owing to the worthy Knight Sir John Trevor and to the learned Gentleman Mr. Paul Bowes of the Temple whose Father was Executor to the indefatigable Antìquary Sir Simon D'Ewes And surely no man need be ashamed of such Assistances Thus like the old Roman accus'd of â—nriching himself by ill means have I â—rought before my Judges the innocent Inâ—truments of my small Improvements Is â—here Witchcraft in any of these A CONFUTATION OF AN IMPOTENT LIBEL Against the Government By King Lords and Commons Under Pretence of Answering Mr. Petyt and the Author of Jani Anglorum facies nova Ne Sutor ultra crepidam The INTRODVCTION 'T IS doubtless a brave thing to attempt heroick Mischief to insult over the Ruines of a well framed Government at least though but in Appearance to venture upon the Design of altering it with Jesuitical Boldness how much soever is wanting of their Subtilty Fame is as careful to preserve the Memory of him that burnt as of him or them that built Diana's Temple nor is Mr. Petyt more likely to live in the Records of future Ages for giving new Life and Lustre to so many of the past than our State-Physitian for poysoning those sacred Fountains with his Exotick Drugs 'T is not to be doubted but late Posterity will admire the excellent Composition of that Clyster whereby he would purge the Body Politick from the Chronical Disease of Liberty and oppressing Load of Property Since he has thought fit to Out-Law all the English and to give them Lupina Capita put them out of all Protection and Security he must not look for much Respect towards his voracious Cubs which like the Cadmean Crue were born fighting with one another they would like Phoraoh's lean Kine devour the Fat of the Land and must needs require a great deal of Nourishment since they have so long been floating in his watry Brain without any substantial Food Indeed he himself in great Measure played the Executioner upon his own Follies and condemned them for some time to the dark being as he says in his Letter to a noble Peer Doubtful whether they should be published as is usually done by unlawful Births he endeavoured to stifle them but finding it not improbable that they might with Justice be represented as dangerous and monstrous he has let them live to his Reproach CHAP. I. That he mistakes the Question and contradicts himself to the yielding the whole Cause nor is a greater Friend to Parliaments than to common Sense IF notwithstanding all this huffing Author's mighty Bustle I evince 1. That he mistakes the Question 2. That he contradicts himself and that sometimes to the yielding up his Cause What will the World say of his Knight Erranty in Antiquities and noble Design to rescue the Virgin Truth from the enchanted Castle of groundless and designing Interpretations P. 1. Against Mr. Petyt for himself to deflour her I must be excused if some of his Contradictions are suffered to fall in here since I can hardly represent any Notion of his without them but I will keep all out from hence which relate not to his Mistake of the Question SECT 1. THE Controversie between us is of Right whether or no the Commons such as now are represented by Knights Citizens and Burgesses had Right to come to Parliament any way before the 49. of H. 3. except in the fancy'd way of being represented by such as they never chose Tenants in Capite by Military Service Mr. Petyt in my Judgment proves that Citizens and Burgesses had Right to come by Representation and I that Proprietors of Land as such had a Right to come in Person before that The Fact is used by both of us as a means to prove the Right Acts of Parliament as now called and King's Charters as of old are also insisted upon and even the Records and Histories produced to vouch the Fact are for the most part yielded us so that the Question upon positive Laws and upon Testimony is either whether Right can arise out of any Fact or else it is matter of Right and Reason what Sense ought to be put on the Words of the Witnesses to the Fact or any of them as is made out by an ordinary Instance Suppose a Witness in a Cause swears to a matter of Fact and his Credit is not denyed but the Question is in what Sense we ought to take his Words here Reason must determine the Fact by considering the Coherence of his Discourse and the several Circumstances which explain it And this we are taught His Glos. by our doubtful Oracle or rather by Apollo himself when 't is told us that the meaning of fideles c. is to be known from the subject matter yet Against Jan. Angl. facies noâ—a p. 1. for all this forsooth The Controversie is of matter of Fact only Indeed an Act of Parliament is matter of Fact if 't is disputed whether 't was made or no but if we argue that such or such is the Intendment of it we shan't try this by a Jury or any Judge of Fact And the Right which arises from thence is from the Meaning and the Reason of the Statute as well as from the Fact that it was made It will be said Why do you stand upon Niceties His meaning is no more than that he yields the Right if you prove the Fact But how can that be when he denies a Right even to his Favourites the Tenants in Capite though he supposes that de facto they came all along Tho they came before the 49 of Hen. 3. Yet the House of Lords and the whole Great Council was before that but an House of Lords was a new Constitution in the 49th of H. 3. and had it's Origine from that King's Authority Against Mr. Petyt p. 228. 229. p. 110. then a new Government And after that though de facto Lords came as Lords yet ever since the 49. H. 3. it was not out of Right for 't was at the King's Pleasure and so 't was with contracted Bodies of Tenants in Capite who prescribed to a Right from before the 49 and if they came were Lords for you must know no Commons then were ever at the Council But the King and his Privy Council might give them a present Right if they pleased or with-hold from any the Writ
Petyt p. 228. nor earlier Commencement than the Commons What King Henry a little before his death begun that is to call such Earls and Barons ib. p. 228. quos dignatus est such as he pleased Edward the First and his Successors constantly observed This was the Constitution of the House of Lords Viz. The rebellious Barons who framed the new Government p. 210. the Lords made the Commons and the King made the Lords The Kings follow'd Montfort's Pattern Against Mr. Petyt p. 229. for calling the Commons to Parliament Which yet was not Montfort's alone for they the rebellious Barons fram'd and set up the new Government p. 210. After which they sent out Writs in the King's Name to summon a Parliament with Commons as well as Noblemen And yet Camden cited p. 226. Cotton cited p. 228. according to two Authors whom I receive H. 3. set the Pattern who after the Victory at Evesham wisely began in This what his Successors fortunately finish'd And the King's beginning this was a Reason why those Kings follow'd Montfort's Pattern Though 't was by the Power of Montfort alone that is of him and the other Barons that the Commons were let in to the great Councils to lessen the strength and power of the great Lords that is their own strength and power yet it was by the King's Authority though 't was before the Battel of Evesham when Montfort prevail'd yet it was done after when the King recovered the Regality I shall come now to the particular consideration of Jani Anglorum facies nova The Author of which sufficiently shews his fantasticalness in the Title of his Book Jani Anglorum facies nova What because his Shreds of Antiquity are thought doubtful by some taken in one sense by others in another do's he therefore make Janus bifrons of his Composition He had as good call it a Spread Eagle which looks both wayes too I am sure it suits better with my Book which is an high Flyer His Allusion to Selden's Jani Anglorum facies altera will not justifie him since that Antiquary was chiefly conversant in Popular and Lucrative Law Besides the Title imports the Novelty of his Opinion though perhaps he would have us believe that he puts a New Face upon those musty old things which have been thought to look with a different Aspect Nor can he shrowd himself under my Title for mine is an old Face which has honourable Scars and Flaws in it and a Professor's Aspect And they understand not Railery and Figure who observe not how I expose him by the Allusion He will have it and brings many Arguments Jan. Angl. c. p. 22. amongst which the Judgment of a whole Parliament of that famous King Ed. 3. but that is not Infallible that the Common Council of the Kingdom in King John's Charter is onely a Council for Scutage and Aid granted by Tenants in Capite Whereas Aid sometimes signifies such as to be sure is granted by the greatest Council and therefore does alwayes Against Jani c. p. 10 11 12. Farther What need was there to have the Cause of Summons declared if it were onely about Aids and Escuage or other ordinary business of course though indeed whether it was for Aids or other Business might not be known without this Declaration ib. p. 12. Lastly If all Proprietors were Members of the Great General Council 't is strange there should not have been the same care taken that they might be summoned Alas What signifies the Provision of the Common Law But he brings an Argument from the Earl of Chester's being a Count Palatine Against Jan. c. p. 20. and not subject to the Feudal Law whereas he was a feudal Tenant Though Bracton lib. 3. ca. 8. I must confess the old Dotard Bracton sayes Comites Paleys Counts Palatine have Regal Jurisdiction salvo dominio Domino Regi sicut Principi saving to the King his Dominion as Prince not as Lord of the Feud Besides in one of the Quotations which he brings to prove that the Earl of Chester however came to Parliament Against Jan. c. p. 17. he leaves out Laici because it manifestly destroys his Whimsey for it shews that all the Laity were Tenants in Chief in that they as a great Council say that the Tenants in Chief did owe no Service But he has another fantastical Notion that this Council in King John's Charter was an ordinary Court. Upon which he has these Arguments which I put among his Unintelligible Vagaries that there was a Court held thrice a year Against Jan. p. 26. which treated onely of Matters of ordinary Justice Vid. Jan. c. unless when 't was united with the Great Council And in these two Senses taken together was an Ordinary Court that the Tenants were obliged by their Tenure to be there Bract. l. 2. c. 16. p. 37. Consensu communi totius Regni introducta But at the Great Councils were more for which he cites Bracton who speaks of several Vnintelligible Businesses for which the Common Consent of the Kingdom was always required That to King John's Charter the Liberi Homines totius Regni were Parties Against Jan. c. p. 5. whereas in truth the Great Charters were onely the Petitions of the People drawn into the form of Charters as Statutes now are upon the Petitions of the Commons drawn into the Form of Statutes and pass'd by the Concurrence of the King and Lords Since I am fallen into the Learning of Charters I must inform you that though the Charter of H. 3. has the inspeximus of Edward the First and is enrolled in the 25th of his Reign in ipsissimis verbis when 't is confirmed 〈…〉 in full Parliament Per commune assent de tut le Royaume Rot. Stat. 25 Ed. 1. m. 38. to have been made by the Common Assent of all the Realm in the time of H. 3. nostre Pere meaning the Father of Edward the First and though as appears in the Statute Roll the Date and Witnesses were of the time of H. 3. yet Against Jan. c. p. 63. this Great Charter was properly the Charter of Ed. 1. or perhaps rather his Explication or Enlargement of that Charter of King John and H. 3. for we find not the Great Charter either of that or King John ' s Form in any of the Rolls until the 25th of Ed. 1. and therefore 't was impossible that any such Charter could be found in the 25th of that King though he Reign'd so long since or indeed that King John's Charter was made by him And there is Demonstration that 't was not the Charter of H. 3. in that Rot. Parl. 15. Ed. 3. N. 150. dor when 't is confirm'd in Parliament in the 15th of Edward the Third 〈…〉 〈…〉 The Great Charter and the Charter of the Forest and other Statutes made by our Sovereign Lord the King
yields these Rights to be more than precarious For according to him the Tenents in Capite were the only Members of the Great Council before 49 H. 3. and if others were after 't was by Usurping upon the Rights of Tenents in Capite ib. p. 210. ib. 42. who and not others when the 〈◊〉 Government was set up How were Cities and Burroughs holding in Capite Represented according to this And how came they ever to be Represented began to be Represented by two Knights for every County out of their own number and they at first that is then Elected their own Representatives and yet these Tenents in Capite might be set aside if the King and his Council pleased nor was any power given to others to chuse till â—0 H. 6. c. 2. which gave no new power ib. p. 79. and the Lords depend upon the Kings pleasure ib. p. 42. Therefore what the design is ib. p. 227. 228. and at whose door the crime of it lies the thing it self speaks tho I should be silent But for fear he should seduce unwary Readers I must observe his Artifice in imposing upon them the belief that as it has ever since 49 H. 3. been at the Kings pleasure that any Lords came to the Great Council so the King could of right name to the Sheriff what Representatives for the Counties Against Mr. Petyt p 249. Cities and Burroughs he pleas'd as he observes in the Margent upon a Record 31 E. 3. but he is not so Candid to observe that though indeed at that time there was such a nomination yet that was noâ— to any Parliament or to make any new Law or lay any kind of Charge upon the Nation or particular men but was a Summons of a Council to advise how what was granted by full Parliament legally Summon'd might be best answered juxta intentionem concessionis praedictae and in such Cases the Judges only who are but Assistants in Parliament might well be consulted but pro magnis urgentibus negotiis as when King Charles the First called the Magnum Concilium or Great Council of Peers to York An. 164â— upon the Scotch Rebellion the King call'd more to Advise with and the Counsellors might well be of his own Choice 'T will be urg'd that when the King appointed but one for every County p. 242. 26 E. 3. they were impowr'd to consent to what de Communi Consilio contigerit ordinari p. 246. 27 E. 3. and that such a Council made Laws as the Statute of the Staple made the 21 of E. 3. to which the answer is very obvious that they made only Ordinances not Laws and that these were Magna Consilia taken in a sense totally different from the Generalia Concilia or Parliaments and all this appears above the power and subtilty of our learned Doctors Evasions in that the Record cited by himself in the 26 E. 3. calls the Assembly they are Summon'd to Concilium only and an Act of Parliament in the twenty eight of that King calls what was done in the twenty seven Ordinances 28 E. 3. c. 13. and that meeting a Great Council Magnum Concilium but such a Council it was and its Resolutions such meer Ordinances the distinction of which from Acts is well known that that very next Parliament finds it needful to confirm and give them the force of a Law Agreeably to this the Earl Marshal in that grand Case in the 3 H. 6. pleads that though a determination hadde be made against the said Earl Marshall in great Council Rot. Par. 3. H. 6. n. 12. though he hadde be of full age that might not disherit him without Authority of Parliament these are uncontrollable evidences and proofs against him let him to save the great Credit of his Learning answer them if he can But who is the new Government-Maker and new Parliament-Maker perhaps one might know from himself when he has considered a little better and then he may think the Government as 't is now establisht â—ighly concern'd in his Errors Perhaps 't will be said I injure this good man in imputing to him a design in relation to the present Government Since he owns that the most excellent great Council Against Mr. Petyt p. 229. and goes to prove it evidently from Records received its perfection from the Kings Authority and time But 't is obvious that its Perfection must be meant of such its Perfection as his Book allows and he would make evident but what is that That Lords should to the time of his excellent discoveries be Summon'd to Parliament ib. p. 227. 228. or past by at the Kings pleasure and that if the King pleas'd he might Summon one Knight for a County ib. p. 249. one Citizen for a City one Burgess for a Burgh and those nam'd to the Sheriff And this design will be very evident if we observe his aery ambuscade to return his own phrase and meer juggle in joyning the Kings Authority and time together we think we have something but by an Hocus Pocus Trick 't is gone for admit that its Perfection were such as we say it has at this day viz. for Lords to come of Right in their own Persons and that the Commons should send Representatives of their free Choice Yet let us see what setlement he gives this Great Council for which purpose we must divide the two Authorities which sometimes may differ And 1. Suppose that though time would preserve that power which the Great Council exercises a King would hereafter take it all to himself and make Laws by a Council of his own chusing or without any If the Doctor allows this power doubtless the next Parliament will thank him 2. Suppose that without or against the Kings Authority time only would establish this Great Council can this be done He that affirms it surely will be no great friend to Prerogative nor understands he that Maxim Nullum tempus occurrit Regi And one of these must be clos'd with 'T will be objected that I am as injurious to Prerogative in arguing that some Lords may have a Right of Prescription to come to the Upper-House But I think no sober man will deny that there is a right either from Writs alone or from Writs as prescribed to and 't is strange that it should not be against Prerogative to urge a right from one Royal Concession and yet it should be to urge it from many but farther if they who had no right to come in Person or be Represented in Parliament should by colour of Prescription put themselves upon the King for Counsellors this were derogatory to the Prerogative But if there be a natural right for Proprietors of Land with whom some say is the ballance of power within this Nation to be interested in the Legislature which I 〈◊〉 not affirm Or if there be such a positive right not only from the Laws for frequent Parliaments which suppose such to be Members as had been but more particularly from the Law received in the 4th of William the First Rex debet omnia rite facere in Regno per judicium procerum Regni and by positive Law or Custom the King us'd to send special Writs for some general for others the Prescribing to special Writs which is not of Substance as to the Legislative Interest is no diminution of Prerogative because no more in effect is out of the King than was before which is that this man should one way or other have a share in the Legislature If this Solution of mine will not pass I cannot help it I am sure the Law for a right grounded upon one or more Special Writs of Summons stands fast though the reason of it should be above my reach Having run through a Book so ill-natur'd to the Government and so impotent in its setled anger as that which some may think to have no other design Above all vid. Title page Against Mr. Petyt p. 81. than that of exposing Mr. Petyt and me the one for Artifice â—â—nhandsom dealing with and false application of Records c. the other amongst other things for Ignorance Confidence and Cheating his Readers I may hope notwithstanding the disparity of years and the dignity of his place to be very excusable in using our Answerer with no more respect When a man renders himself cheap by his folly and yet meers with many so weak that they are discipled by him to notions of dangerous and pernicious consequence to the State Ridentem dicere verum Quis vetat In summing up the Product of his many years labours which my Preface charges him with perhaps it may be thought that I omitted one considerable Head however I leave to others if they think fit to add for a seventh That both Lords and Commons may be depriv'd of all Shares or Votes in making of Laws for the Government of the Kingdom when ever any future King shall please to resume the Regality Some perhaps may add an eighth That the Parliaments are nothing but Magna Concilia such as are called only to Advise upon what shall be given in direction but no consent of theirs required to make the Kings determination a binding Law And Vice Versâ every Great Council such as that call'd to York 〈◊〉 1640. is a Parliament FINIS ERRATA PAge 12. l. 6. add Drs. before interdicts p. 15. in marg add p. 239. p. 16. l. 11. read vicinata p. 18. l. 10. r. 25. p. 28. l. 12. r. in Chief p. 39. l. 5. r. had p. 47. l. 21. r. induere l. 23. r. deposceret p. 82. in marg dele Shire after Cambridg p. 100. l. 17. r. Sharnborn p. 110. in marg towards the bottom add Domesday p. 124. l. 6. r. paragio p. 133. l. 24. add and according to their Chattels p. 139. add of before a title p. 151. l. 13. r. conticuissent p. 156. in marg r. Lords for Knights p. 163. l. 2. r. â—it l. 10. r. integra p. 201. l. 8. r. title In the Additions Page 8. l. 5. r. article p. 23. in marg Leges Sancti Ed. p. 25. l. 12. r. of King John's Charter viz. Tenants c. ib. l. 25. r. Nocton
Jus Anglorum ab Antiquo OR A CONFUTATION OF AN Impotent LIBEL Against the Government BY King Lords and Commons Under pretence of Answering Mr. PETYT and the Author of Jani Anglorum Facies Nova WITH A SPEECH according to the Answerer's Principles made for the PARLIAMENT at OXFORD Ne Sutor ultra crepidam LONDON Printed for Edward Berry in Holborn-Court in Grayes-Inn 1681. THE PREFACE THere was a Book lately publish'd against Mr. Petyt and my Self which not only treats us with Pedantick Scorn like those that are to Cap the Author within his Colledge but its seems to trample on the best Constitution our Government it self under Colour of its being New in the 49th of Hen. 3. Against Mr. Petyt p. 110. when it arose out of the indigested Matter of Tumults and Rebellion and so not having a Legitimate Birth as not born in Wedlock between the King and his People it may be turn'd out of Doors by the Help of that Maxim Quod initio non valet tractu temporis non convalescit How can a Bastard become a Mulier The Treatise which was to prove the Fact Against Jan. c. p. 1. Matter of Fact only was cried up for unanswerable and perhaps 't was imagined that there was no possibility left for a Reply since the Writer who has render'd himself famous in his Generation as if he knew better how to manage a Design than an Argument pass'd it about only to such Hands as were obliged by Promise if not by Principle to conceal it But Mr. Petyt and my Self having by Accident seen bis Book and observed some Heads which we intended to expose to the World At last out comes the happy Birth yet 't was hoped that by that time there might be Proselytes enough to defend it with Noise and Acclamations and Contempt of all Opposers Records Ancient Historians and our Ancient or Modern Lawyers Though generally in a Matter of Argument we ought to leave to the Reader the Censure of what we think we confute without remarking how absurd or criminal it is yet when such Reflections are almost the only Arguments on the other side and they when pronounc'd tanquamè Cathedrâ must have some Authority 't is fit that even these trifles should have their due provided they be answered with Decency of Expression And we know in what manner the Wise Man advises us to answer some People I should have been glad if this Author'â— Civility had obliged me to treat him at another Rate than I do since I delight not iâ— this way nor think thereby to please such Readers as I would court to be Judges between us But why should I Apologize for the managing of this Controversie in a way wholly New to me Since the severest Expressions are but retorted and transcrib'd from our Answerer's Original and indeed it may well be an Original for 't is without Example If in any thing I seem intemperate I may say with an Author well known Excess of Truth has made me so Our Author 's very Notions are Satyrs upon themselves nor can any thing more expose a Man than a seemingly Gigantick Endeavour to remove the fix'd Stars the Lords from the Firmament where each shines in his setled Station and to take from the Commons of England that Spot of Earth which they enjoy and tread on While the Sons of Titan lay Pelion upon Ossa one Mountainous Fiction upon another the Mountains have a quick Delivery and bring forth Confusion to the Giants What has been the Product of his many Years Labours I think may be shewn in Miniature under these Heads 1. That the Norman Prince against his reiterated Promises and against the great Obligation of Gratitude to those of the English who assisted him Against Mr. Petyt p. 29 30 31 32 33 34 35 so p. 176. took away all their Lands and Properties and left them no Right or Law 2. That from the Reputed Conquest and long before under the British and Saxon Governments to the 49th of Henry the Third None came to the Parliaments or great Councils of the Nation where Life and Fortune were disposed of but the King 's immediate Tenants in Chief ib. p. 39. by Knights Service 3. That even they came at the Discretion of the King and his Council ib. p. 79. 228. ever after the 49th 4. That the House of Commons began by Rebellion in that very year ib. p. 210. 228. 229. nay and the House of Lords too 5. That the Constitution of the Lord's House ib. p. 227. 228. 229. consists at this very day in the King 's calling or leaving out from special Summons to Parliament such Earls and Barons as he pleases 6. That by vertue of the New Law imposed upon the People p. 29. by the Conquerour p. 39. none within the Kingdom were Free-men or Legal men but Forreigners who came in with him being such as nam'd and chose Juries and serv'd on Juries themselves both in the County and Hundred Courts who were all Tenants in Military Service None surely but such as read without observing any thing whose Books can't beat into their dull Brains common Reason and who never were acquainted with that excellent Comentator'â— practise will think that I need set my self to argue against every one of these ' Tâ—â—ll be enough if under those Heads which I go upon to destroy his ill laid Foundations I prove them upon him for most of them confute themselves Truly I cannot but think Mr. Petyt and my self to have gone upon very good Grounds since they who oppose them are forc'd to substitute in their Rooms such pernicious ones as would render the Foundation both of Lords and Commons very tottering and unstable Not to mix Lords and Commons together I will endeavour to do right to the dignity of that Noble Order and their Interest in Parliament apart from the other The Constitution of the House of Lords our Antagonist as I shall shew will not allow to have been setled till after the time of E. 1. if it be yet Whereas for a short Answer to his new Conceit the Earl of Norfolk Rot. Parl. 3. H. 6. n. 12. p. 228. in the third of H. 6. lays his Claim to and has allowed him the same Seat in Parliament that Roger Bigod his Ancestor had in that great Court in the time of H. 3. And though on the side of the Earl of Warwick his Competitor 't is urged that the Earl of Warwick had the Precedency by King H. 4◠〈◊〉 Commandment 'T is answered Yat Commandement yave no Title ne chaungeth not the Enheritaunce of the Erle Mareschal but if or unless hit hadde be done by Auctorite of Parlement And if Precedency were a setled Inheritance which could not be alter'd but by Act of Parliament how can a fixt Right of coming to Parliament be taken away otherwise Though our Author supposes it to be at the meer Will and Pleasure
â—â—eton to prove either that every â—s the same with a Burrough or else 〈◊〉 taken as different from a Burâ—â— and indeed here are Burgi 〈◊〉 they must be small Towns incorâ—â—ed not holding in Chief â—â—ttleton's Words from which I have â—eason to dissent are these Chescun 〈◊〉 est un Ville Against Jan. p. 7. mes nemy e converso â— he translates Every Burrough is a 〈◊〉 but not e converso Now if from â—e infers that every Town is a Burâ—â— his Argument is thus every Town â—â—urrough because every Town is not â—â—rough A man of the weakest parts â—ell us a thing is so because it is â—e is a wise man indeed that can â— it to be so because it is not so Well but 't is a Town incorporaâ—â— and to strengthen his Argument produces Writs of Summons to Vills which if he argues at all shâ— That he allows the free Customs more than Tenants in Capite to comâ— Parliament to be hereby provided under the words which I insist on But pray did Littleton explain â— self that none but Towns incorpâ— were Vills Oh! but it must be What Liberties What free Customs common ordinary Towns and Parisheâ— enjoy Against Jan. Anglorum c. p. 7. What municipal Laws Whaâ— vate Laws and Priviledges Alas I have no Laws whereby they enjâ—â— any Lands If others had Land they were free from the Feudal Law for the Laws were broâ— in by and exacted upon only the â— mans themselves who all held in 〈◊〉 by Knights Service too Against Mr. Petyt p. 43. and 〈◊〉 could not have had so much as pâ—â— Customs or By Laws neither haâ— other Incorporated Towns any for are not within the Charter of Libeâ— which was to Tenants in Capite What says Fortescue to all this can he answer 't when he makeâ— the Genus to all Divisions under Hundred So that either a Buâ—â— corporated Town other Town and a â—â—arish Vid. the Franck-pledge in every Vill. Vid. etiam Jan. Angl. or Village may be a Vill mes neâ—e converso But is it possible that â—ortescue can gain Credit when such an â—â—thor says the contrary However â—â—'s hear him for methinks the man â—â—oks as if he had some weight in him Hundreds are divided into Villages Fortescue de laudibus Legum Angl p. 52â— â—â—der which Appellation are contained â—â—rroughs and by Burroughs must be â—â—ant such as held in Capite Towns inâ—â—porated without such Tenure or not â—orporated or else these were no Diviâ—â—ns within an Hundred And to be â—e an ordinary Village is a Village here Burrough is made the Genus to all â—â—wns but not to Villages but as he â—ws wherin a Village consists it wholâ—roves to my mind For the bounds of Villages are not conâ—ed within the Circuit of Walls p. 52. b. Buildâ—s or Streets but within the Compass Fields great Authorities certain Hamâ—â— and many other as of Waters Woods 〈◊〉 Wast-grounds which it is not needful set forth by their Names Here not any one of the Particuâ—â— seem necessary to be added to the â—â—er unless all must but even a certain Compass of Fields or of Woods 〈◊〉 make a Village without any great Aâ—thorities and within that space migâ—â— be certain free Customs which the Owâ—ers enjoy nay though not inhabitinâ— And for an Evidence of our Authoâ— great Love to Truth he observes 〈◊〉 what is said in the Comment upon thâ—â— very words which he cites out of â—â—tleton 1. Inst. fol. Villa ex pluribus mantionibus vâ—mata collecta ex pluribus viciâ— And if a Town be decayed so as no â—â—ses remain yet it is a Town in Law But what need I resort to foreiâ— Proof when in effect this is granted my hand For Against Jan. c. p. 61. ib. p. 63. King John's Charter and Kiâ—â— Henry the Third's were the very same King Henry the Third's was but â—ward the First 's and Ed. 1. in the â— of his Reign rather explained or enlarâ—â— that Charter of King John than câ—â—firmed the Charter of H. 3. Well to be sure nothing of Sâ—â—stance was left out So that the Rigâ—â—â— of coming to Parliament which indeâ— could not be omitted out of the Châ—â—ter of all the then Liberties and Rigâ—â—â— of the Subject were included in 〈◊〉 Charter of Ed. 1. Wherefore in those â—imes and in Henry the Third's if the Charter were in his time made and confirmed with that Omission of the Teâ—ants in Chief as not material the Rights of all were comprehended under the Liâ—erties and Free-Customs of the Civitates Portus Burgi Villae being from the â—9 H. 3. by the 25. Ed. 1. to be sure he Villae the Inhabitants holding Free-â—ands in any Village or Parish came by Representation So that in the Charter of King John Villae must signifie inferiour Towns or Parishes as well as in the 25. of Ed. he First But p. 64. 't is an absurd Supposal that by he 25. of E. 1. the Constitution was not â—etled even though himself says that the House of Lords was constituted before â—nd that a new Government was not onâ—y framed Against Mr. Petyt pa. but set up Nay I shall prove â—hat the Representations of the Commons were then setled but to urge almost he same Argument from other words of his If Hen. the Third's Charter accordâ—ng to Matthew Paris p. 62. on whom he â—elies in nothing differs from King John's As I have seen in several Manuscripts of great Antiquity affirming that they were some 2. aud some 9. H. 3. and which the Charter inrolled 28 Ed. 1. proves beyond Dispute and yet in that of Henry the Third the Clause relating to the Tenants in Capitâ— is left out Is it not Demonstration to him that the Rightâ— of small Towns and Parisheâ— were preserved by the general Words I insist upon And that according to the Sense of the Charter 15 Ed. 1. when the Commons were noâ— obliged to be represented by Tenants iâ— Capite only he himself contends for noâ— more than the Fact that sometimes moâ—â— of the Knights for the Counties weâ—â— such as held in Capite by Knights Service But why was not Henry the Third Confirmation of King John's Charter 〈◊〉 much the Charter or Grant of H. 3. â— Ed. the First 's Confirmation made it hiâ— Charter So that here is another Contradiction if he insist upon it that it was not as properly the Charter of Hen. 3. as Ed. 1. And in Truth Henry the Third's was most properly his since he granted it not as a Confirmation of King John's Charter but as the Liberties which were in England in the time of his Grand-father Hen. 2. For although the King says Ma. Paris 305. 〈…〉 Omnes illas libertates juravimus which I take it referred to the Confirmation 20 yet one of his Councellors insists upon it in the King's name that they were extorted by Force from King John for his Charter they
acquir'd the Crown by Election these things shew it to have been as factious as those which are condemned But we must have Recourse to the History to know how he became King here England since it had been reduced to a Monarchy by the Conduct and Magnanimity of the great King Alfred found that benefit of being under One Head that before Succession was setled when a King dyed the People voluntarily pitch'd upon some One to whom they might pay their Allegiance and from whom they might expect Protection when a King quitted his mortal Dominion to be Assessor with the Principaâ—ities and Powers in the highest Orb. The Question was not whether they should have a King or no but who should be the man The Confessor through some foolish Vow which was void in it's self having denyed Marriage-rights to his Queen they had none of his Issue to set their Hopes upon and perhaps they were loth to fall again before a Family which they had formerly disobliged and therefore would not think upon Edgar Etheling who was Heir to him that wore the Crown next before the Confessor But that Monarch of their Choice and as 't was believ'd the Elect of Heaven was in such esteem with them that the greatest Worth and the clearest Stream of Royal Blood would have signified little in respect of the Deference they paid to his sanctified Judgment and therefore his Recommendation in such a superstitious Age was to them a kind of Divine Revelation The Norman Prince Abrev. Chron. Rad. de diceto fo 479. Subregulus Haroldus Godwini filius quem Rex ante suum decessum elegerat à t tius Angliae Primatibus ad regale culmen electus William pretended a direct Gift of the Crown from him but there is Authority which tells us That upon his Nomination the chiefâ— men of all England chose Harold Whether this illustrious Son of the great Earl Godwin was design'd by the Confessor or no is left in Dispute but that he arriv'd to his high Trust by a general Election of those who were able to keep under M. S. ex bib Domini Wild defuncti or satisfie the rest is certain and yet an ancient Author calls him Conqueror Heraldus Strenius Dux Conquestor Angliae If Harold has made an absolute Conquest which no man pretends that I find and William had conquer'd him perhaps there would have been a Devolution of a Conquerours Right upon him who subdued Harold but there was only a Competition between these two Princes for that Dignity and Authority which Election had vested in Harold 'T was this that William fought for not for the Lives Liberties and Fortunes of the People And William himself upon his Death-bed being ask'd to whom he would devise his Kingdom makes Answer that he would not pretend to dispose of it and gives this Reason which argues that he thought he had no Right so to do Non enim tantum decus haereditario jure possedi For Comb. Brit. f. 104. I possess'd not this Honour as a Right of Inheritance which here must be meant as what I had an absolute Property in and Disposal of Sed diro inflictu multâ effusione sanguinis humani perjuro Regi Haroldo abstuli interfectis vel fugatis fautoribus ejus dominatui meo subegi But by a direful Conflict and much effusion of humane Blood I took it from perjur'd King Harold and brought it under my Dominion through the Deaths or Flight of his Abettors With this agrees Lex Noricorum in the Confirmation of St. Edwards Laws William the Bastard through God's Permission subduing Harold Regnum Anglorum victoriosè adeptus est Got the Kingdom of England by his Victory but the Victory was over Harold not the whole Kingdom I wonder our Antagonist brought not this to prove that William the Bastard got all the Lands of the Kingdom as he granted all the Lands of whole Counties under the word Comitatus but as 't will appear that the Proceedings of this Prince to his being crowned prove his Election so his Transactions with Harold shew that he laboured only to have that Power which he said Harold maintain'd by Perjury Suppose therefore Harold had not oppos'd and without more Turmoils William had been crown'd had he in this Case been a Conquerour in the Sense contended for And what makes the Difference between his having it of Harold freely or by Force in relation to the whole Kingdom Surely he would never have endeavoured to come in by Treaty to a limited Dominion when with those Advantages that were on his side he might expect by turning â—ut Harold to jump into the absolute Disposal of the whole Land But immediately after St. Edward's Death he sent an Ambassador to demand a Resignation from Harold to which he urged his Obligation by Oath the Gift of his Kinsman the Confessor was likewise pretended But Harold argued for the Invalidity both of his own Oath and the others Bequest because they were Selden's Review of the History of Tithes p. 439. absque generali Senaâ—s populi conventu edicto That â—s no Act of the Common-Council of the Kingdom which Council is represented by this Author under the Form of the Roman Councils at those times when besides the Senator's Votes there was the Jussus populi And this is in other words of the same Import exprest by Matthew Paris Sine Baronagii sui Communi assensu Upon Harold's denying the Normanâ— demand Appeal is made to the Popeâ— and there was one then in the Papal Seâ—â— whose Ambition made him court all occasions of becoming the Vmpire of thâ— Affairs of Christendom Vid. Dr. Stillingfleet's Answer to Cressy's Apol. p. 347. ad 353. and this was thaâ— great Asserter of Clerical Exemptionâ— from the Civil Power Gregory the Seventh The Pope like God himself who by his Prophets often anointed and designed Kings sends one of his Ministring Spirits a Nuncio I take it with a consecrated Banner as an Evidence oâ— Right and an Earnest of Victory and encouraged him to fight the Lord's Battels not expecting that commendable Ingratitude in the religious maintaining those ancient Rights of the Crown oâ— England for which he afterwards upbraided his Royal Son Whether Superstition or the hopes oâ— engaging the Pope's secular Influence and Interest to his side occasion'd William to refer his Pretence of Right to the Pope's Decision I shall not judge but with these Colours of a Title he lands â—n England and some say committed no Acts of Hostility till his Claim was again deny'd by the daring but unhappy Harold who was a man of Spirit fit for Empire and was likely to have kept â—t much longer had not Fortune raised up against him three great Enemies at once his Brother Tosto Norwegian Harold and the aspiring William against whom possibly his arm was weakened with the Reflection upon his own Vow to William to assist him in his ambitious Design and what he
men Against Jan. c. p. 99. so that even the Normans Estates were taken away too And this that erroneous Glossary makes under the Feudal Law too for from thence 't is inferr'd that the great Tenants in Capite had Right to impose Laws upon them that held of them and to exclude the whole Kingdom besides from the Great Councils This though no Conquerour the Dr. left out either as being ashamed of it being 't is little less than a Contradiction to say a man was no Conquerour and yet seized upon all the Lands of the Kingdom and forc'd them to submit to such Seizure so that he conquer'd the Land or because it contradicts his Notion of William's being a Conquerour so that he himself had as much reason to exeept against this Book as others but it seems Against Mr. Petyt p. 35. out of a stark Love and Kindness to Truth he left only what was against him but took what was for his Purpose And for the Support of it's Credit tells us a formal Story the Attestation to which from outward Circumstances I never thought it worth the while to examine since I have so much Reason from within it self to believe it to be spurious Against Petyt p. 13. and so ought he For if he have any respect to that great man's Memory he will not suffer him to say that William divided out the whole Kingdom to hold under the Feudal Law when before he had observ'd of Gavelkind the general Tenure of the Lands in Kent Feudalibus legibus non coercetur 3. The Lands of all these Grantees of King William the First descended to the eldest being held in Knights Service Si miles fuerit vel per militiam tenens tunc secundum jus regni Angliae primogenitus filius patri succedit in totum Glanvil lib. 7. c. 2. If a man be a Knight or holding by military Service then according to the Law of the Kingdom the Eldest shall succeed his Father to the whole But for the greatest Authority we have an Act of Parliament which having full Power to alter the Tenure 31 H. 8. c. 3. enacts that certain Lands in Kent shall descend as Lands at Common Law and as other Lands in the said County which never were holden by Knights Service us'd to descend Here the Descent of Knights Service is the same with Descent at the Common Law which was to the Eldest and this is oppos'd to the Descent of Lands in Gavelkind which was Socage And thus have I proved every thing which upon this Head was needful to vindicate the Right of the English and to prove that their Rights were own'd in Practice notwithstanding the vain Flourish of a Conquest It may be objected perhaps that the Feudal Law which was exacted and observed by and upon only the Normans might have related only to such as held immediately of the King for that his Grantees might and did often grant out to others and their Heirs for ever to hold in free Socage Yet this will not do because such Grantees would have been Free-men but all the Free-men of the Kingdom were Tenants by military Service though by their Tenure any of them were only to pay a Rose a Spur a Sum of Money or any other thing Therefore hereby is my Argument inforc'd if William had been a Conquerour in the Sense strove for as disseizing all the English and making Grants of their Lands to the Normans and that to hold by Knights Service and all the Normans both they who were here before William's Entrance if any such had any shares allow'd them and they that came in with him or followed for the spoil were under the Feudal Law requiring Knights Service and these were the only Free-men How came there to be such a Race of lawless Free-men as the Sokemanni p. 31. And how is it possible that the manner of holding our Estates in every Respect with all the Customs incident thereto should be brought in by the Conquerour p. 29. Whoever reflects upon these things will as he says of a reverend Judge acknowledge the Dr. to be very ignorant in the History of this Nation or that he spoke out of Design the words which I fairly cite from him in relation to the Conquest and the Great Council suppos'd to have been establish'd thereby CHAP. VI. Proved from the Beginnings of Charters and Writs that the English were not disseized of all by William the First THough even the former Head of the Socmen such as I find holding in parigio was a needless Addition to the particular Consideration of Domesday book Domesday which might serve instead of a thousand proofs that William the first did not divide all the Land of the Kingdom to his Followers and consequently did not impose upon the people such a Representative as is fondly conjectured Yet I cannot omit the mention of those numerous Writs and Charters Vid. numbers in the Monasticon which are directed Omnibus Baronibus hominibus suis Francis Anglis Or as one of the Charters of William the First Carta W. 1. Monasticon vol. 1. f. 397. into one County and so on occasion into all Archiepisc. Justiciariis Vicecomitibus Baronibus fidelibus suis Francis Anglis Eborascire Admit that Fideles signified Feudal Tenants this shews that the English had shares as well as others but here being the Vicecomites before Barones I should vehemently suspect That the Free-holders of the County were meant At least Carta Antiqua n. 11. we find the ordinary Free-holders and they English as well as French Vid. his Glos. complemented by Matildis as persons of some Quality and Interest in the Nation Matildis Dei gratia Anglorum Regina Episcopo London Justiciariis Vicecomitibus Baronibus Ministris omnibus fidelibus Francis Anglis Here being Ministri between Barones fideles the Ministry must be such as by their Tenures were bound to attend in the Wars and the Fideles the King 's ordinary Subjects there being no Mat. Paris to explain fideles here and help us out of this Difficulty which is made greater by King Stephen's Charter Archiepis Episcopis Abbatibus Comitibus Justiciariis Baronibus Vicecomitibus Ministris omnibus fidelibus suis Francis Anglis totius Angliae Nay to perplex the Cause the more we find under Subjects Free-holders English as well as French and these were such as were the Curia Baronum where Tenants in free and common Socage were Suitors as well as such as held by Knights Service Willielmus Comes Gloucestriae omnibus Baronibus hominibus suis Francis Anglis atque Walensibus 'T is not improbable that the Welsh Vid. Taylors Hist. of Gavelkind Jani Angl. p. 41. which were some of his Tenants were then all Socagers but then the Codex Roffensis shews how greatly the English were interested in the Counties in the time of William the First Praecepit
ought to remember that the very Law whereby he would prove all the Free-men of the Kingdom to have been Tenants by Knights Service was in Confirmation of the Confessor's Laws and that granted to those who had lived under them and knew the Benefit of defending themselves and their Properties in the Great Councils and the Nation too there or by their Arms elsewhere without out trusting the manage of all to such Thayns as held immediately of the King Nor were they then likely to quit their former Advantages when as appears by the Story they were in a probable Condition of gaining more if they would for the English had got together by the Encouragement of Abbot Fretherick Exercitum numerosum fortissimum a numerous and most potent Army and in their Head was he who was the only Heir to the Crown and that a Title above the Confessor Upon this Prudentiâ feliciter eruditus having the Happiness to follow his Interest and comply with the Occasion he granted St. Edward's Laws with some Additions indeed but not with such as would defeat the whole And I affirm it that though in his Additions he provides about the Tenures or other matters of his then or future Tenants yet there is not any thing which creates a feud over the whole Kingdom Indeed the Dr. who understands not for it was beyond his Sphere that Service laid either by Common or Statute Law upon all free Lands such as before the Conquest and since the Burgh-bote the Bridge-bote and the Expeditio the last of which we have been disputing of under the Law of Arms is a Service but no Tenure Tit. Hon. as Mr. Selden has rightly shewn would infer that because the Conquerour in Affirmance of St. Edward's Laws enacts That they shall for ever or Jure haereditario enjoy their Lands free from all Manner of Charge but their free Services which indeed tho it implies not his raising Tenures universally does not exclude such as himself had raised that therefore all were made Feudal Tenants Quod restat probandum SECT 2. FOR King John's Charter If he thinks fit to read over the Book that treats of it Against Jan. c. p. 47. once more and to observe it well and compare it with what he hath said he will find it anticipated and answered and if he hath not a mighty strong Fancy of his own Abilities must be ashamed of his impertinent Rhapsodies Since 't is there abundantly proved that though that King's Charter seems to some Understandings to make express provision for the summoning the Great Council of the Nation yet it expressly provided for the summoning the lesser Council the more ordinary Curia Regis only the Tenants which were Members of it standing in need of a Law to relieve them from some Hardships they were under Whereas the constant practise from the Reign of William the First inclusively downwards evinces that they who composed the Great Council had maintain'd their Right ad habendum commune Concilium regni uninterrupted for a general proof of which the Authority of Bracton was us'd which shews that besides such Payments as lay upon the Kings Tenants in Capite or had their Rise from Custom there were other introduc'd by the Common Consent of the whole Kingdom whence 't is easie to conclude that King John's Charter does not exhibit that is prrticularly set forth the full form of our English great and most general Councils in those days Jani c. p 1. Though there is a general Reference to all the constituent parts of those August Assemblies and to be sure nothing to prove that Tenants in Capite were the only Members of them yet what others have thereby Right ad habendum Commune Consilium Regni is not exprest how strongly soever it may be imply'd from the words even without the Interpretation of practise That others had Right is undeniable from the words and 't is as clear from practise who those others were and whether or no all the Members of the great Councils of the Kingdom or even all such as were Tenants in Capite came to Council in Person either upon general or special Summons as such Tenants did to the Conventions for matters of their Tenure is not mentioned but left to that ancient Course and Right which the Practice or Fact explains Tho this last be barely of the manner of Summons yet it shews that the manner is mentioned only in Relation to the form of an ordinary Curia Regis as I shew the Council of Tenants to have been The words upon which our Dispute is are these Nullum Scutagium vel auxilium Mat. Paris fol. 257. ponam in Regno nostro nisi per Commune Consilium regni nostri nisi ad Corpus nostrum redimendum ad primogenitum filium nostrum militem faciendum ad primogenitam filiam nostram semel maritandam Et ad hoc non fiet nisi rationabile auxilium Simili modo fiat de auxiliis de Civitate Londinensi Civitas Londoniensis habeat omnes antiquas Libertates Liberas consuetudines suas tam per terras quum per aquas Praeterea volumus concedimus quod omnes aliae Civitates Burgi Villae Barones de quinque portubus omnes portus habeant omnes Libertates omnes liberas consuetudines suas ad habendum Commune Concilium Regni de auxiliis assidendis aliter quam in Tribus casibus praedictis de Scutagiis assidendis submoneri faciemus Archiepiscopos Episcopos Abbates Comites majores Barones Regni sigillatim per literas nostras praeterea faciemus submoneri in generali per Vicecomites Ballivos nostros omnes alios qui in Capite tenent de nobis ad certum diem scilicet ad terminum quadraginta dierum ad minus ad certum locum in omnibus literis submonitionis illius causam submonitionis illius exponemus sic factâ submonitione negotium procedat ad diem assignatum secundum Consilium eorum qui praesentes fuerint quamvis non omnes submoniti venerint My Inference from hence as I find Et de Scutagiis assidendis divided in a distinct period from what went before the Dr. how foul soever his Reflection of New-face-Maker is Against Jani c. p. 3. has render'd not unfairly viz. That the City of London all Cities Burgs Parishes or Townships that is the Uillani their Inhabitants the Baroons of Free-men of the five Ports and all Ports should amongst other free Customs enjoy their Right of being of or constituting the Common Council of the Kingdom And that this reading and my Deductions from it are not so far remote from Reason and Sense Against Jani c. p. 60. that no man but my self could ever have thought of them appears in that he or they who Midwiv'd into the World the spurious Glossary 2 part of the Glos. use some Artifice to keep them
out of this Curia for the sake of which as well as the Kings own the Charge was divided CHAP. VIII That ordinary Free-holders were nobles before the 49. of Hen. 3. and came to the Great Councils as such in their own Persons HAving vindicated from his Cavils my Notion of the Curia Regis and the present Seat of it's Power I shall address my self to shew that I have not cheated my Readers in the proofs I have brought of the General Councils of the Nation much more large than the ordinary Curia Regis I thought I had shewn in my first Essay in this kind by very clear proofs that the Liberè Tenentes of the Kingdom Free-holders came to the Great Councils from the Reign of William the First inclusively to the 48. or 49. of Hen. 3. without any setled Exclusion which is enough if it reach'd to the greatest part of them with which the Ballance was If I prove that as such to wit merely because of Property be it more or less they were noble the proof will be yet stronger because all Authors and Records agree that no Nobles were excluded till then Mr. Petyt has very judiciously asserted the Right of Commoners all along before the Conquest which our Opponent like a right Sophister would have to be from the Creation whereas that 't was so immemorially so as there are no Foot-steps to the contrary is as much in the eye of Law as if from his fantastical Epocha so in Domesday-book Lands are said to have been semper in Ecclesiâ or in Monasterio To take in the Justification both of Mr. Petyt and my self I shall prove that all the Free-holders which were in a true Sense universi de regno were Nobles That these were the whole Kingdom appears by one of the Statutes requiring the entring into such Sodality De omnibus Villis totius regni sub decimali fidejussione debebant esse universi Leges Sancti Ed. cap. 19. The whole People of all the Vills of the Kingdom ought to be under or else within Franckpledges It appears by another Law that those who were not Free-holders were under the Pledge of another Habeat omnis Dominus familiam suam in plegio suo Let every Master of a Family have his Family within his Pledge And every Master of a Family must be reciprocal with a Free-pledge or Free-holder for him who had not wherewith to maintain his Family either no body would undertake for and so he was cast out to be imprison'd and no member of the Commonwealth or else was under the Wing of another having not wherewith otherwise to subsist Agreeably to this Spelman's Glos. tit Letae Sir H. S. calls these free pledges Liberiores Villae seu designatae stationis These Free-holders had an inferiour Court of Justice by themselves from whence Appeals lay upwards to the Hundreds from them to the Counties from them to the Curia Regis and the Propositus or Headborough was Aldermannus * * * Leges Sancti Ed. de centum â—riborgis Spelm. Glos. tit Friburgos Isti speaking of the Decanus decemvir or caput de decem inter Villas Vicinos causas tractabant secundum forisfacturas emendationes capiebant concordationes faciebant viz. de pascuis pratis messibus de litigationibus inter vieinos innumerabilibus hujusmodi decertationibus quae humanam fragilitatem infestant eam incessanter oppugnant Cum autem majores causae erumpebant referebantur ad superiores eorum Justiciarios quos supradicti sapientes super eos constituerant Viz. They that made the Law of Frank-pledge scilicet super decem Decanos quos possumus dicere centuriones vel centumviros eo quod semper centum Friborgos judicabant They treated of Causes in the Vills and amongst their Neighbours they took Satisfaction according to the Forfeitures and made Agreement between the Parties to wit about Pastures Meadows Crops and quarrels amongst Neighbours and innumerable Contests of this kind which infest humane Frailty and continually assault it But when greater Causes happen'd they were referred to Justices above them which the aforesaid Wisemen plac'd over them to wit over the Heads of ten Tythings whom we may call Centuries or Centumvirs because they always judged an Hundred Frank-pledges These Heads of the Tithings who were Judges in the Vills were Aldermanni chose by the major part of every Tything From this it follows that if the Headborough was an Alderman of the choice of the Free-holders then the right of Free-holders to dispose of Property was sufficiently maintained in having their Aldermanni at the Great Councils As at that of King Ina Leges Inae where the Laws were made exhortatione doctrinâ of some great men particularly named omnium Aldermannorum meorum But indeed there were besides these Seniores sapientes which I take it will reach to all the Free-pledges and a great Assembly of the Servants of God under which Expressions also they might have come as well as the Clergy Glos. p. 31. Omnis homo qui se tenuerit pro libero sit in Plegio Leges Willielmi 1. Est quaedam summa maxima securitas per quaâ— omnes statu firmissimo sustinentur ut unusquisque stabiliet se sub fiâ—â—jussiâ—nis securitate Leges Sancti Ed. de Friborgis Yet our Author has shut out all Clerks and Knights supposing them all along to have been no part of the Nation divided into Decuries or Tythings But the main point yet unprov'd is That every Dominus Familiae or Freeholder was a Thayn and this I will prove by the greatest Authority that of Statute Law Et habeat omnis Dominus familiam suam in plegio suo si accusetur in aliquo respondeat in Hundredo ubi compellabitur sicut recta Lex sit Leges Câ—nuti c. 52. Quod si aâ—cusetur fugiat reddat Dominus ejus Regi Weram i. precium nativitatis hominis illius Et si Dominus accusetur quod ejus Consilio fugerit adlegiet se cum quinque Thanis id est Nobilibus idem sit sextus si purgatio frangat ei reddat ei Weram suam qui fugerit extra legem habeatur And let every Master have his Family in his Pledge and if he be accused in any thing let him that is of the Family answer in the Hundred where he shall be try'd according to Law But if he be accus'd and fly for it let his Master pay the King his Were that is the price of his Head or of his Birth And if the Master be accus'd that he fled with his Counsel or Consent let him wage his Law with five Thains that is Nobles and let himself be the sixth If he cannot acquit himself let him pay the King the price of his Head and let the Party that fled be out-law'd Here the Master of the Family was joyned with five Thayns and he made the sixth and this the
Honourable sages Communâ—â— pleise a vous honourables Sires considereâ— c. Lu quele peticion bien conceive 〈◊〉 mesme le Parlement fuit respondu c. d d d Rot. Parl. 3 H. 5. pars 2. n. 36. Hospitalx Pleise a les Honourables sageâ— Communes e e e Rot. Parl. 4 H. 5. n. 19. Pur Labbe de Fountaynes Pleise as Honourables Sagâ— Communes f f f Rot. Parl. 5 n. 16. Pur le Duc Decastre As Honourables Communes que pleiâ—â— a vous Sages discretions de prier c. g g g Rot. Parl. 9. H. 5. pars 2. n. 11. 〈◊〉 Willielmo Domino de Clynton Ales Honourables Tressages Comâ—munes supplie Sire William de Clynton 〈◊〉 As Tressages Rot. Parl. 6. H. 6. n. 17. Treshonourables Communes de cest present Parlement Pro Johanne Harris pleise â—vous Tresnobles discretions de prier a noâ—tre Seignieur le Roy c. Rot. 8. H. 6. 29. Please a Tressages Honorables Communes c. Rot. Parl. 15 H. 6. n. 36. 4. Honorables sages sires les Communes As Honorables Rot. Parl. 2 H. 5. n. 51. Sages sires les Communes de cest present Parlement Rot. Parl. 4. H 5. Pur la terre Dirland As honorables Sages sires les Communes dicest present Parlement supplient c. 5. Honorables Treshonorables Tresnobles Gracious Tressages Seignieurs les Communes A les Tressages Rot. Parl. 2 H. 5. pars 2. n. 22. Honorables Seignieurs les Communes de cest present Parlement supplie treshumblement Pur Mark le Feyre c. Please avoz Honorables Sages discretions graciousement Supplier a nostre Sovereign c. La quele peticion lue en dit Parlement plenement entendue fuit respondu en manere qeu suit c. a a a Rot. Parl. 4 H. 5. n. 20. As Treshonorables graciouses Seignieurs la Commune du cest present Parlement c. b b b Bundel Pet. Parl. 4. H. 4. Pur Burgeys de la Ville de Lym. As Tressages Tresnobles Communes de cest present Parlement SECT 4. FOR Confirmation of the Nobility of such Commons as now are represented in Parliament I shall add the Authority of our great Master of Records The Design of his Book is â—hieâ—â—y to prove that only Tenants in Capite were Members of the Great Council but finding all the Nobility there he often extends itâ— farther to their Tenants by Knights Service One of his Arguments to prove that Commoners were not Members is because tho Records mention Communitas or Milites p. 110. which takes in the Tenants in Capite and their Tenants by Knights Service Fideles p. 183. yet Mat. Paris has only tota Angliâ— nobilitas or magnates regni And in shortâ— we are to understand that all the Members were Nobles which is a clear prooâ— that when Communitas or Fideles besideâ— Milites are mentioned to have been Members those though more than Tenants iâ— Capite and their Knights were all Noblesâ— Quod erat demonstrandum This alone were sufficient to discover thâ— Writers Ignorances Against Jan. p. 54. in that he hath cited Records and Histories directly against himselfâ— And he in effect confesses how he hatâ— cheated his Readers ib. p. 63. and abused and wresteâ— the Records and Histories he hath cited Where he has strained them to a contrary Sense FINIS A SPEECH According to the Answerer's Principles Made for the PARLIAMENT AT OXFORD LONDON Printed in the Year MDCLXXXI THE SPEECH I Will not say the Dr. has followed the biting Advice of the Satyrist Aude aliquid brevibus Gyaris carcere dignum Si vis esse aliquis If you 'l a figure in the Kingdom make By punishable Crimes the way to 't take After he has taken his demerited Seat in the House of Commons with a Magisterial look and a Professor's preparatory hem thus methinks he addresses himself to the Chair Mr. Speaker I Cannot but congratulate our happy meeting in this Place where the Vniversity will teach Loyalty to the most Factious and dispose them to swallow down that Remedy which out of a burning Zeal to bring into the World something suitable to the Dignity of my Professor's place I am eager and all Passion to communicate My Remedy in short is a Lenitive to cure the raging heats of insolent Parliaments which are too apt to value themselves upon their pretended Antiquity Not loving Idleness Letter to the Earl of Shaftsbury at vacant times from study and Practice in my Profession as a diversion I have with great Industry and I may say it some Judgment examined Things done in this Nation more than a thousand years by past with a continuation of them until three or four hundred years last effluxed Though there are several Lawyers here Against Mr. Petyt p. 29. yet they have study'd and know onely Popular and Lucrative Law and not the Constitutions of the Nation before their own time Concerning which they may be content to hear my Reading The Records which they open are of a nature far short of those upon which I have been poring these sixteen years Mat. Par. set above Record Against Mr. Petyt p. 183. No heed to be taken to the old Monks and Historians ib. p. 16. in Marg to the same purpose ib. p. 43. Nor must they pretend to that acquaintance which I have with Historians whose Authority I can by my sagacious Inventions advance or depress as I see occasion Vnder the Saxon Government p. 6. the People were so far from not having their Votes and shares in these Councils as only they had Uoices in them If any more had they were the Priests but the Princes Great Officers and Leaders had no Voices at all for if they had 't would have spoil'd the singular Democracy Of the many Councils by Mr. Petyt cited p. 13. there is not to be found the word Populus in the Title Preface or Body of any of them except in that spurious one of King Ina p. 15. Yet now I bethink my self King Edward sirnam'd the Elder called a Synod of English Nobility wherein Plegmund presided Here his own Author tells us in few words the meaning of the long Title of this Synod which just before he had mentioned viz. That the Bishops Abbets Fideles Proceres and Populus were all Nobiles Noblemen Whence some will infer that inferiour Proprietors were there as Nobileâ— but 't is without all colour of Reason And in the Grand League and Vnion between the Brittons ibid. p. 8. and 9. Saxons and Picts per Commune Concilium assensum omnium Episcoporum Procerum Comitum omnium Sapientum Seniorum Populorum the Sapientes Seniores and Populi are the Bishops Peers and Earls The Generalis Senatûs â—b p. 10. Populi Conventus Edictum is therefore the Assembly and
common Intendment is meant of coming as Members in their own persons Against Jani p 4. and when they agreed to it which was no abridgment of their personal right they came by Representation and Election and every one was there himself virtually by his Deputy but they often met in vast bodies and in capacious places both in the Saxon times and after William the First obtained the Imperial Crown 1. If you 'l believe the Chair all this is precariously said Against Jani c. p. 89. without Foundation or Authority however 't is granted that I seem to back it with an instance where I say The whole body of Proprietors were assembled at Runemede between Stanes and Windsor at the passing of King John's Charter The Doctor refers us to p. 106. and 107. of his pretended Answer to Mr. Petyt to see what this Assembly was and of whom it consisted where he proves my Assertion being all that he there shews is that there was not time for Writs to issue to chuse any Representatives of the Commons but not a word offer'd against their being there in their own Persons having been got together expecting the Kings Answer to their Demands who appointed a meeting at Runemede Rot. Pat. 17. Joh. pars unica m. 13. n. 3. ib. m. 23. dorso The Record saith there were Comites Barones liberi homines totius regni or according to that Expounder of more fallible Record Ma. Paris Against Mr. Petyt p. 183. p. 127. in Marg. there were the Magnates which must there be meant of the Nobilitas Major unless you take them for the Kings friends only as the great men of the Kingdom elsewhere these Magnates had drawn to their side and to that treaty Vniversam fere totius Regni Nobilitatem Ma. Paris fo 244. and this Nobility was so numerous that they made a vast Army exercitum inestimabilem confecerunt and the Records not only shew that such as were but liberi homines were there and parties to the agreement being inter Regem Comites Barones liberos homines but the body of the Charter shews that Tenents by other free tenures besides Knights service were interested in it Besides this the frequent meetings in so wide a place as Runenede call'd Pratum Concilii as I observed in the same page is a strong Argument that vast bodies compos'd the great Councils in those days and why Tenents in free Socage were not Members as well as such as held of Subjects by Knights service I see no reason but wait for the Doctors In the mean while I shall present him with some other Authorities which shew that my Assertion was not precarious 2. If in the 38th of H. 3. the Commons or probi homines were Members of the Great Council by Representatives of their own choice and degree there being besides all the Tenents in Capite two chose for every County Jani c. p. 244. Vide amongst other Authorities Vice omnium Singulorum and yet such came in their own persons both before and after the making of King John's Charter since which till the 48th or 49th of H. 3. no alteration in the way Jani p. 51. 57 58 59 60 61. 66. 214. 248. or right of coming is supposed then it follows that Representations were brought in when the Commons who might have come in their own persons agree to it and there being of the Councils before the Norman times and then Barones populus 't is not to be doubted but that they came in their Persons if they would both in the Saxon and Norman times especially since William the First did but confirm the Law of the Confessor concerning the power of the Great Council Rex debet omnia ritâ— facere in regno per judicium Procerum Regni Leges Par. Ed. in words that shew'd that all the Members were in those ages stiled Peers such as might come in person and that inferior Proprietors were Members the Law of the great Folâ—mote then received proves beyond all dispute 3. If besides Barones Jani c. p. 241. and Milites we find Libere tenentes or Fideles in the account of Great Councils before 49 H. 3. we are to suppose Against Mr. Petyt p. 112. even without Consideration of the Capacious places of their Assembly The free Tenents in Scotland and the Possessionati in Poland us'd to be Members of their great Councils without Representation and the multitudes there that such Proprietors of Land as would came personally till a Law or common practice to the contrary be shewn it being according to their natural right and the natural import of the words besides the Doctor does not allow of Representations except the Tenents in Capite who came without Election Jani c. p. 248. p. 66. were Representatives of the rest 4. If King John's Charter does not exhibit the full form of our English Great Jani c. throughout and most general Councils in those days but by continuing the rights of every particular place leaves room for Proprietors of Land to have been Members as well as Tenents in Capite then the libere Tenentes which many Records before the supposed change in the time of H. 3. mention as Members of the Great Councils were not Tenents in Capite And as Tenents in Capite came in their own persons for matters concerning their Tenures So unless the contrary can be shewn we are to believe that the libere tenentes not holding in Capite came in like manner especially if we consider how mean were some of the Majores Barones to whom special Writs were to be directed as he that held part of the Barony of Mulgrave Communia de Term. Mich. An. 39 E. 3. Rot. 36. penes Rem R. in scaccariâ— per servitium millesimae ducentesimae partis Baroniae Nay I find Norman Darcy who indeed held several parcels of the Mannor of Darcy which seem to be by several purchases amongst other shares holding Centessimam partem Centessimae Sexagessâ—mae partis Baroniae Penes Rem Regis in scaccario de Term. Pasche 29 E. 3. Lincoln de Re. Brook tit exemption The hundreth part of the Hundred and sixtieth part of the Barony and yet that he who had only so much was Baro Major appears in that the Common Law exempted him from being of a Common Jury as holding part of a Barony Besides the Doctor yields that more than such as are expresly mention'd in the contested Clause Tenents in Military service of King John's Charter viz. of Tenents in Capite were Members of the Great Councils which he does not always confine to the great Tenents and some of these were as inconsiderable and as unfit for Counsellors as the generality of the libere Tenentes for though he in his sixteen years search Against Mr. Petyt p. 41. could find no less a part of a Knights