ancient Demeasn when they have not been called to great Councils This Author is pleased to say p. 99. It cannot be thought that the King ever wrote to all the Knights and Feudataries of England Pat. 15. Jo. p. 2. M. 2. n. 9. Rex Baronibus militibus omnibus fidelibus totius Angliae These Fideles were the Kings Tenants in Capite Glos. p. 16. to meet in a great Council c. and therefore whatsoever the words of the Writ are the Design of it was to convene such only as had usually in those â—imes been called to great Councils which were the Tenants in Capite though no Barons That is in effect the King never wrote to all the Knights and Feudataâ—ies yet he did for he conven'd his Tenants in Cheif though no Barons 'T is manifest he speaks here only of the King 's Feudal Tenants for he avoids â—he largest and most comprehensive Sense of Fideles which as he informs us there â—nd in his painful and partial Glossary of some half a score words may be taken for Subjects in general and restrains â—t to such as were Tenants in Capite But he says 't is not to be thought that all the Fideles in the restrained Sense had the King's Letters or Writs yet in the same page with an antick Face p. 99. he tells us they the Tenants in Capite though no Barons were all summoned by particular Writs And this he learnedly proves by the irrefragable Authority of King John's Charter p. 100. which gives the Tenants in Capite that were no Barons a general Summonâ— only even as he himself translates the words I 'll appeal to all but him whether he does not only yield the Right which he opposes in the Sense which he puts upon Fideles but gives more than any reasonable man will insist upon for I knowâ— not that it has been urged for more than Free-holders But whereas he tells us That the word Fideles of which there has been so late mention Glos. sometimes is taken 〈◊〉 Subjects in general in another place he gives us to understand that the meaning of this word Fideles as also of these words Liberi homines liberè tenentes c. p. 17. is to be known from the Subject-matter where they are used Wherefore if such Grants were made by these as Feudataries only could not charge then others were Parties thoâ— not in his large Sense That such there were we have the Authority of Braâ—on Jani Angl. facies nova p. 1. as has been before observed tho â—he Dr. thought it not worth his noâ—â—ce Sunt quaedam Communes praestationes â—ae Servitia non dicuntur Bract. lib. 2. c. 16. p. 37. nec de consueâ—dine veniunt nisi cum necessitas interveâ—erit vel cum Rex venerit sicut sunt hiâ—agia corragia carvagia alia plura de â—ecessitae consensu communi totius regâ—i introducta Which are not called Services nor come from Custom but are only in case of Necessity or when the King meets his People as Hidage Corrage and Carvage and many other things brought in by Necessity and by the â—ommon Consent of the whole Kingdom And the Carvage which is one of the â—hings mentioned by Bracton we find â—ranted by the Magnates fideles Rot. Claus. 4. H. 3. m. 2. Conâ—esserunt nobis sui gratiâ communiter omnes â—agnates fideles totius regni nostri doâ—um nobis faciendum scilicet de qualibet caâ—catâ c. duos solidos But farther if I may be so bold he â—ells us by this Law meaning King â—ohn's Charter p. 100. the way and manner of â—ummons to great Councils was setled So that for the future p. 101. the Summons should be by particular Writs to every great Baron and in general to all Tenants in Capiteâ— by Writs directed to the King 's Sheriffâ— and Bayliffs Yet for all this plentiful Concessionâ— that here was a Right setled by Law he had before as much as in him lay over-thrown it and destroyed the wholâ— Foundation of Parliaments by a wisâ— Answer to the Record of 8. Ed. 2. wherâ— St. Albans as holding the Chief pleadâ— it's ancient Right to come to the greaâ— Councils and alledges that the nameâ— of it's Representatives appear in thâ— Rolls of Chancery The Answer per Concilium is Scrutentur rotuli c. de Cancellariâ temporibus Progenitorum Regis Burgenseâ— praedicti solebant venire vel non tunâ— fiat justitia vocatis evocandis si necesse fuâ—rit This I find thus translated Let the Rolls of Chancery be search'd if in the time of the King's Progeniâ—tors Against Mr. Petyt p. 78. the Burgesses aforesaid used to come or not and then let them have Justice in this matter and such aâ— have been called may be called if therâ— be necessity Though I am informed by such as â—nnot but know it to be so Against Jan. c. p. 111. that this mighâ—â— man of Letters has been drudging at â—ecords these sixteen years yet I do not the least wonder at his Ignorance in â—â—em since he laid not a Foundation at â—â—hool by learning Latin as he should â—â—ve done nor has Stepdame Nature â—â—dued him with Sense to understand 1. Can he pretend to Latin and â—t translate Vocatis evocandis such as â—â—ve been called may be called The â—â—st Rudiments would have taught him â—at it signifies They being called that â—â—ght to be called or such Persons and â—hings as ought Parties Papers and â—ecords And if he had look'd into the Parliaâ—ent Rolls of that very Year Rot. Parl. 8. Ed. 2. n. 261. 247. he would â—â—ve found Vocatis vocandis or Vocatis â—i fuerint evocandi which was used it were to prevent all possible Blunâ—rs the usual form of directing Tryâ—s 8 Ed. 2. n. 105. Sometimes 't was Vocatis partibus 〈◊〉 auditis eorum rationibus 2. But can he pretend to Sense â—o shall think that when Justice is to 〈◊〉 done still 't is left to Will and Pleasure with a may be Or that when Right is grounded upon any particulâ—â— Reason or Fact which only is question'd the Right would be in Questionâ— though this very thing were proved How comes the Search to be directed as the only means of deciding it Oh! but 't is si necesse fuerit I take 〈◊〉 this can be no more than that if after the Rolls were search'd farther Tryaâ— or the hearing the Parties Reasons anâ— Enforcements of the Fact were neceâ—sary they should be called To which Sense Records of the same year give full Authority Mandetur Thes. Bar. de Schaccaâ— quod vocatis coram eis Collectoribus infâ—â— inquisita contentis in petitione si necessâ— fuerit plenius veritate Rot. Parl. 8. Ed. 2. n. 204. so n. 241. faciant inde conqueâ— rentibus justitiam But more direct Rot. Parl. 8 Ed. 2. n. 210. Et si necesse fuerit quod Nicholaus
Term. Pasc. 7. 8. Jâ—hannis 9. dorso claims against William Scoteny the Capital Messuage which he ought to have in Steinton with the Appurtenances as that which belongs to his elder share of the Barony which was Lambert Scoteny's These surely were Brothers not Sisters Sons being of the same Name and the Claim being immediately from the seizin of Scoteny and this Claim was allowed as the Record shews Besides tho 't is generally believed that Wardship was in use before the Reign of H. 3. And Mr. Sylas Taylor in his History of Gavelkind Hist. of Gavelkind p. 104. thinks he proves it to have been before the supposed Conquest Yet we have good Authority that there was no express Law for this before 4. H. 3. Kâ—ighton fo 2430. Aâ— 1219. 4 H. 3. Magnates Angliae concesserunt Regi Henrico Wardas hoeredum terrarum suarum quod fuit initium multorum malorum in Angliâ The great men of England granted King Henry the Wardships of their Heirs and Lands which was the beginning of many Evils in England 2. We find Custom prevailing beyond what was the foreign Feudal Law at least of some places for which I may instance in Relief paid by the Heir male after the Death of his Ancestors Whereas I find it in Cujacius payable only by the Heir female Cujaâ—iâ—s fo 498. Siquis sine filio Masculo mortuus fuerit reliquerit filiam filia non habeat beneficium patris nisi à domino redimerit If any one dye without Heir male and leaves a Daughter let her not have her Fathers Benefice unless she redeem it of the Lord. That Relief was called Redemption appears by the Law of H. 1. Leges fo 1. cap. 1. Haeres non redimet terram suam sicut faciebat tempore fratris mei sed legitimâ justâ relevatione relevabit eam It seems in King Rufus his time this payment was so unreasonable that 't was a Redemption in a strict sense and a kind of Purchase of the Land but now 't was to be a lawful and just Relief 2. The jus feodale mentioned in the Glossary if it be not the Law generally received where Feuds were must be the Law of England in particular But 't is to be observed that Choppinus knocks this down who tells us that amongst the French Juridica potestas was not imply'd by a Feud Against Petyt p. 31. in margin But our Apollo teacheth us that our ancient Tenures were from Normandy and that was govern'd by the French Feudal Law being of the French King's Feud Wherefore the Juridica Potestas or jus dicere was not here Ex ipso jure feodali nay in the same place the French Feudist tells us Choppinus de Jurisdict Andeg fo 455. Interdum certè Baro Castellanum observat superiorem 'T is certain sometimes a Baron is under a Castellan's Feud And he gives the Reason why it may be so which is that a Feud carries not with it ib. so 450. the Potestas juridica which reason is very apparent in that a Castellan is of a degree lower than a Baron Take Juridica potestas in the same Sense with jus dicere in the Glossary a Baron was to take Laws from his Inferiour Leges H. 1. cap. and to have his Lands taken from him without Forfeiture as it appears by the Law of Hen. 1. that being one of the Judges in the County Court was not upon the Account of Resiance but the having Free land there so it must have been in the great County Court of Cheshire though they had an extraordinary Power there Admit therefore that a Lord of another County were Feudal Tenant to a Commoner there as 't is not to be doubted but he might have been should this Lord have been represented by his Capital Lord there Glos. 2 part Consentire quisque vid. Or admit a Lord there had no Land but what he held of a Commoner as of such an one as Thomas de Furnival Jani Angl. facies nova p. Sed vide the Record more at large who had several very considerable Mannors might Thomas de Furnival represent the Lord in the Lord's House But farther taking the Jus Feodale to be as in force with us unless the positive Law giving so large a Power be shewn 't is a begging the Question for 't is to prove the Right which our wise Antagonist would exclude from the Question as being indisputable I suppose by the Fact whereas the fancied Right is used in his Hotch-potch Glossary to induce us to the belief of the Fact But from what Sourse is this Right deriv'd SECT 5. An Improvement of the Notion of Jus Feodale THat I may make our mighty man of Letters out of Love with his darling Glossaries 2 Part of the Glos. and his own I shall observe to him That according to that for the Credit of which he pawns his own Truth or his Friends All the Lord 's Right of Representing their Tenants in the Great Councils Against Mr. Petyt p. 31. is meerly Feudal ex ipso jure feodali But all Feuds were enjoy'd under several Military Conditions or Services Being then these were the onely Feudal Tenures and yet as appears by Domesday-Book and all manner of Authority there were Freemen who held in free or else in common Socage though the Dr. sayes all the Freemen of the Kingdom were Tenants by Military Service These Socagers were not chargeable by any without their own consent But like men of another Government and it seems he will afford them nothing here they though called were not obliged to come to the Great Council which was the Curia of the King 's Feudal Tenants onely Nay they were never at it And therefore no wonder if the Laws were obsâ—rved by and exacted upon Against Mr. Petyt p. 43. onely the Normans themselves For the others could not be bound and if they consented to any Charge for Defence of the Government it could be onely in what way they pleased to consent either in a Body by themselves or united with the Vassals or else severally at home as a meer Benevolence And there being free and common Socage Tenants before the Norman's Entrance and since continually thus it must alwayes have been CHAP. III. That Domesday-Book to which he appeals manifestly destroyes the Foundation of his Pernicious Principles SECT 1. SInce our Tenures and the manner of holding our Estates Against Mr. Petyt p. 31. in every respect with the Customes incident to those Estates are said to be brought in by the Conquest and not onely most but all free Estates must have been feudal as Knights Service which is made the onely feudal was in the time of William the First the onely free Service ib. p. 39. What I have said of Feuds in the last Chapter doth directly reach the Controversie between us though our Author who has an excellent faculty of overthrowing his own Arguments
If a man holding of the King in Capite by the Service of two Knights alien'd one or two Knights Fees with Licence without particular Exemption from the King's Duty in this Case the Burden went along with the Land but if he had according to Licence made sufficient Provision for the King's Service the rest he might have rais'd for his own use and though the Service continued to be reserved to the King yet the Alienee before the Statute of Quia emptores terrarum which was introductory of a new Law was Tenant to the immediate Feoffâ—r this Tenant had no Right to be at the King's Council of Tenants and yet was to answer Escuage and all manner of Charges as assest by the Tenants in Chief who were the only Council for the purposes of such Tenure Si quid novisti rectius istis Candidus impâ—rti si non his utere mecum If our wise Author greater Truths have taught Shew me wherein or take what I have brought To go on with Great and General Councils 21 H. 3. we find at a Great Council Comites Barones Milites liberi homines Whereas 't is said on the other side that none under the Degree of Knights came At another Jani c. p. 244. Barones Proceres Magnates ac Nobiles Portuum Maris habitatores nec non Clerus Populus universus 'T is a ridiculous Answer to this that all these are put together only to make an Impression upon the Pope as if the Sense of the whole Nations Representative whatever it were were not as much to move a Foreign Prince as the whole Nations 45 Hen. 3. Three are chosen out of every County to represent the Body of the County An Agreement was made between King and People 48. H 3. Jan. c. p. 246. A Domino Rege Domino Ed. filio suo Prelatis Proceribus omnibus et communitate regni Angliae To all this p. 265. may be added that long before where the ingenuitas regni were consulted Here are Instances enough of greater Councils than such as King John's Charter settles as I have observed those there were made a Council only for the matters of their Feud they met ordinarily three times a Year and in that were ordinarily a Court of Justice and he betrays his Ignorance not to say more who affiâ—ms the contrary 'T is no Objection to this that sometimes we find Regnum Angliae at it for still 't was ad Curiam pro more Not that the Kingdom used to come of Course but then came to that Court which was ordinary or of Course That the Kings great Officers and Ministers of Justice were there I have always yielded and that 't was no Grievance to the Tenants to have Justice administred without them at other times and therefore it makes not against my Sense that these often sat without the Tenants Yet their sitting was not at stated times and therefore they were not Curia pro more Either way there was a great Council distinct from the less 1. As to the persons composing the one and the other The Great Council had the whole Nation of Proprietâ—rs or of Representatives of their Choice in the other at the most the King had only his Tenants in Chief and Officers and Ministers of Justice 2. As to the matters treated of the one treated of matters of extraordinary Justice the other but ordinary 3. For time the great Council was summon'd as often as the State of the Kingdom required it the other as a Court of Tenants and Officers had times ascertain'd not but that as occasion might offer it self they might be summon'd according to King John's Charter Nay may be after that they never met but upon Summons the lesser Court of Officers and Ministers of Justice met oftner than either but not of Course And thus have I answered his Arguments from King John's Charter by which he labours to prove That Tenants in Chief only composed the Great Council or were all the Nobility of England and have given a clear Account of that unintelligible piece as he is pleased to represent it leaving out what I offer'd upon the Question of the Bishops Voting in Capital Cases since he had no other way of answering it than by calling it impertinent Rhapsody Tho if 't is no better to be answer'd 't is not Rhapsody and fancyful Stuff and if the first ground from our Laws to dispute their Right mentions it in relation to the Curia Regis 't was not surely impertinent to consider their Right the Curia from whence 't was excluded being so directly to my purpose There are other things incidentally coming in which I divide not into Heads being they serve but to explain those which I have rais'd To which may be added That our Author by the Exercise of his Faculty of Story-telling and setting forth the Power of the great rebellious Barons Against Mr. Petyt p. 210. has given us to understand That the Commons were not first brought into the Great Councils in the 49 of Hen. 3. unless we believe that the great men would coâ—sent to ballance and weaken their own Power I may put the Question in his own words upon another Occasion Can it be reasonably imagined Against Mr. Petyt p. 234. 235. that they should give way to or establish such Laws as would undoe and destroy their own Settlement in Power Wherefore the Argument is strong that till then the Commons came in their own Person but that then the Great men having the Power in their hands clip'd their Wings But let us see his weighty Arguments against my sense of this Charter In Answer to my third Head he puts me off with the Fallibility of a Parlialiament but if moral Certainty without Infallibility will not satisfie him in matters of the greatest Concern we may know what he would be at But forsooth this was not a full Court of Tenants because as was usual only some few attested the Fact In Opposition to my Fifth p. 10. 11. he tells us that even voluntary Gifts to the Crown are called auxilia nay even such as were more than Advances upon Services But what proof is there that such were here meant when not only Services because of Tenure with the Advances upon them but what came from more than Tenants are called Auxilia too As general Objections against my Sense 1. If Tenants in Capite were a great Council of the Kingdom p. 12. for Aids and Escuage only which is hardly reconcileable to Sense Why so good Dr. May there not be a great Council especially a Common-Council to a particular Purpose Nay you your self confine it's Power to the raising of Taxes Why was the Cause of Summons to be declared Because of the occasion requiring greater or less Aid 2. Lastly If all Free-men or as our Author saith in other places all Proprietors were Members of the Great and General
Confessor whereas on the other side were Villeins vilis plebs and praepositi Bailiffs all which may be Normans if he please Farther when ten Tithings of Freâ—pledges made an Hundred to suppose that these were not Hundredors legal men there Glos. p. 31. but the Knights who were not bound with Sureties to their good Behaviours is as silly as to say two times two do's not make four 2. His Notion is dangerous and that according to that Improvement of it for the sake of which 't was broach'd But of these Tenants in Capite Against Jani c. p. 13. ' t is highly probable if not without doubt that the two Knights were at first chosen by the other Tenants in Capite in every County to represent them And the Reason given for this is That the Elections were to be made in the County Court by the Suitors Against Mr. Petyt p. 42. and this he imagines to have continued in such Tenants till the 8th of H. 6. c. 7. by which any man that had 40 s. per annum 8 H. 6. c. 7. of any Tenure was permitted to be an Elector Whereas to any one but him 't will be obvious upon reading the Statute that it is restrictive of that Power which before was in men of lesser Estates but is very far from giving any new power Whereas the Elections of Knights of Shires to come to the Parliaments of our Lord the King in many Counties of thâ— Realm of England have now of late been made by very great and outragious and excessive number of People dwelling within the same Counties of the Realm of England of the which most part was of People of small Substance and of no value whereof every of them pretended a Voice equivalent as to such Elections to be made with the most worthy Knights and Esquires within the same Counties whereby Manslaughter Riots Batteries and Divisions among the Gentlemen and other people of the same Counties shall very likely rise and be therefore 't is provided that the Choice shall be in every County by People dwelling and resident in the same Counties whereof every one of them shall have Land or Tenement to the value of 40 s. by Year above all Charges c. Here is manifestly an Exclusion of some former Electors but no new ones created wherefore the unforc'd Consequence is that all Lands being now held in Free or common Socage and there being no time for Prescription or any new Law impowring such to chuse their Representatives this great Preservative of the Rights and Liberties of the Subject is defunct and I dare say 't is neither within his Art or his Will to recover it Yet though he would smother it I doubt not to find it alive amongst his Nobles for whatsoever made a man Noble Against Jan. c. p. 91. secured this Priviledge to him But Ingenuity made a man noble therefore every Ingenuus was always of Right an Elector for the Great Councils or present at them That Ingenuus and liber homo were the same I take it is evident from Bracton Bracton lib. 1. c. 10. who makes the 〈◊〉 Division of persons to be into the Liberi Freemen or else Servants of such as are sui juris who have that Liberty ib. cap. 5. p. 4. which he says is of the Law of Nature or such as are under others whose Liberty is obfuscata darkened or beclouded by the Law of Nations These are but different Expressions of the same thing ib. under the first are the Nobles in a strict sense as of an higher Order such were the Majores Barones and the Ingenui sive Liberi nay the Libertini too Bracton such as were manumitted and restored to their natural Liberty under the other were Servants Villains or others The learned Cluverius in his Description of Germany Cluver Germ. Antiq f. 121. cap. 15. Nobilium Ingenuorum Libertorum cui admixtus Libertinâ—rum from whence we derived our Distinctions makes three Orders under the first Division But all Free-men of either Order were Ingenui with Bracton who takes no difference here And if we believe our Author 's ipse dixit all ingenui were Nobles Quod erat demonstrandum 'T will be hard if amongst these Ingenui Against Jani c. p. 42. we do find prodes homes too but our Author has seen it written prudes homes though he cannot call to mind the Record And truly we have no great Reason to trust his Memory since 't is so treacherous to expose him by frequent and palpable Contradictions Well Prudes homes they were Ay that they were that came to the Great Councils such as were the Wits in the Saxon Gemotes but if to the Folkmote there came to be sure all the Frank-pledges then they were Noble Wits and so vous avez Against Petyt p. 21. the liberi homines prodes homes prudes homes and Wites or Sapientes But upon second Thoughts the Communitas populi were the Community of the Barons only Against Petyt p. 129. together with the Alios the Milites who held by Military Service of the great Barons and the lesser Tenants in Capite And for this there is Demonstration Ib. p. 56. in that the Meaning of Populus iâ— to be taken as contradistinct from Clarus and then it signifies no more thaâ— Laity it doth not denote a distinct State or Order amongst secular men or Laies but an Order and State of men Ib. p. 57. distinct from the Ecclesiasticks or the Clergy This by no means is meant of the inferiour sort of People But good Mr. Interpreter if Clerus signifies inferiour Clergy as well as the Superiour nay is most commonly appropriated to the inferiour what becomes of your profound Observation and of all your Presidents And how comes it to pass that even the poor Mass Priests were anciently called Mass Thegnes Possibly no man has a better Faculty than this Gentleman of facing out clear Proof which he often brings against himself An. 1244. 28 H. 3. Against Mr. Petyt p. 162. Thus he tells us The great men of the whole Kingdom the Arch-bishops Abbots Priors Earls and Barons were called together in which Council the King by his own Mouth in the Presence of the great men in the Refectory at Westminster desired a pecuniary Aid to whom it was answered that they would treat about that matter And the great men retiring out of the Refectory the Arch-bishops Bishops Abbots and Priors met and treated by themselves At length the Earls and Barons were asked The Dr. omits engliâ—â—â—ng ex parte eorum either not understanding it or because it manifestly destroys his Whimsey p. 17. if they would unanimously consent to the Resolutions they had taken in answering and making provision for what had been demanded of them Who answered that without the Common Vniversity Communâ— universitate rather the University of the Commons they would do nothing
at the Community was the Body of Montfort ' s Army Against Jan. c. p. 26. and the Citizens and others of the Faction Against Mr. Petyt p. 125. yet here at this very time and place the Community of the Kingdom of England must needs be the Community of the Barons and Great men Tenants in Capite by Military Service and no other Not onely because here was the Body of the Army and Citizens and others of the Faction but because as is clear from an impregnable instance viz. of the same kind of Council which sent the Letter to the Pope in the Case of Adomar or Aymar de Valentia besides the Earls p. 126. 127. Noblemen or Barons Great men there were the Tenants by Military Service that held of and attended the Barons and Great men and when the King said that though He and the Great men should be willing that Adomar who withdrew himself out of the Kingdom should return tamen Communitas ipsius which is the Community not his would not suffer his coming into England the Great men were the Kings Friends p. 121. the Community his Enemies So that here are two Armies the Great men the King's Friends on one side and the Community his Enemies on the other which is just such another Council as that in the 48th yet without doubt none of the King's Party or Friends were there Rot. Parl. 42 H. 3. m. 3. n. 9. Though in the Articuli Cleri 9 Ed. 2. about fifty years after we find Petitions presented by the Clergy temporibus progenitorum nostrorum quâ—ndam Regum Angliae in diversis Against Mr. Petyt p. 121. Parliamentis Which includes the time of H. 3. Grandfather to Edw. 2. At least this was meant of several Armies and so was the Parliamentum Oxon. Against Mr. Petyt p. 192. but six years before the Military Parliament of the 48th an Army being a Parliament in the sense and general use of the word at that time ib. p. 183. that is a great Assembly Convention or Meeting of the Faction and their Army And thus in the 30th of this King the Parliament is call'd the Vniversity of the Militia that is of them Qui militare servitium debebant the Milites Fideles It seems in many of these Parliaments or Armies chuse you whether the Clergy in their Canonical Habits address'd themselves to the Military men upon which sort of Parliaments they could not fail of prevailing with their brutum fulmen of Excommunication and Ecclesiastical Scare-crows What Against Mr. Petyt p. 135. is Petyt so ridiculous to have the Commons an essential part of the Parliament from Eternity 'T is plain that the Commons began by Rebellion Nota. To lessen their own power because their Constitution was not forc'd by the Barons with their Swords in their hands or promis'd to them then Ib. p. 226. but began from the King's pleasure when the Rebellion was over and the King was restored to his Regality Post magnas perturbationes enormes vexationes inter ipsum Regem Simonem de Monteforti alios Barones motas sopitas And none but Tenants in Capite were Barons before Ad summum honorem pervenit ex quo c. because then and not before the word Baro became a word of greater Honour Against Mr. Petyt p. 226. that is appropriated to Tenants in Capite or their Peers So that before 't was so appropriated more were Barons What though in the Letter to the Pope Jani c. p. 244. the Nobiles portuum maris habitatores necnon Clerus Populus Universus Against Mr. Petyt p. 157. are named yet these troup of words were only to make an Impression upon the Pope who good man knew nothing of the English Constitution or what was done here but would think all they were assembled in such a Great Council as other Parts of Christendom then had I shall not scruple to discover some mysteries to you The Liberi Homines were Tenants in Capite or at least their Retinue and Tenants in Military Service Glos. p. 26. which were with them at Runnemede These liberi homines or Free-men were the onely men of Honour Faith Trust and Reputation in the Kingdom These were the Free-men which made such a cry for their Liberties ib. p. 27. as appears by Magna Charta most of which is onely an abatement of the Rigour and a Relaxation of the feudal Tenures Nay Against Mr. Petyt p. 39. 't is to them these Free-men onely that the Grants were made They that are there mention'd holding of the King in Fee Farm Vide King John ' s Charter petit Serjeanty free or common Socage and Burgage held not so Jan. p. 181. But they all held by Knights Service and so were the King's Barons Of these Barons some might be Villains for that a Tenement or Possession neither added to Glos. p. 10. or detracted from the Person of any man if free or bond according to his Blood or Extraction ib. p. 30. Nay the Freemen or Tayns Theyns were anciently no part of the Kingdom for that was all divided into Frank-pledges of which there was to be a general view in the Sheriff's Tourn but these Frank-pledges were all pitiful Fellows bound with Sureties to their good behaviours ib. p. 31. which the Theyns were not .. Which answer his quotation out of Briton Glos. p. 31. In after times some might have had particular Charters of Exemption or else generally such of them as grew to be Great men were excused Whereas Mr. Petyt contends Against Mr. Petyt p. 177. that the liberè tenentes de Regno came to the Great Councils 't is a giddy Notion Whoever heard of Tenure of the Kingdom Though indeed we find in Domesday Book that such an one holds de Comitatu But more directly to the point Herefordshire Castellum de Cliford Such a Castle est de Regno Angliae non subjacet alicui Hundredo neque est in consueâ—â—dine ulla And I 'll warrant it he with his designing Interpretations Against Mr. Petyt p. 1. will render it That this held not of the Kingdom but that it was of it or in it and so were the Free Tenants But to load this Opinion according to the literal meaning of the words Omnes de Regno p. 187. which sometimes occur all Copy-bolders all Tradesmen all Bondmen and Villains and all Servants were Members of Parliament Yet there having been no Representatives before 49 H. 3. all the Inhabitants of Cities Burroughs holding in Capite or Chief and several Towns Corporate not holding in Chief came to the great Councils in their own Persons which some will say made a greater Body than the Inferiour Proprietors and the Representatives of these Places and were Persons of as mean condition For the Lords themselves they have no better Against Mr.
is Argument sufficient to prove it for mark the weighty reason H. the Third after this was granted and Edw. 1st taxed their Demeasns through England though not the whole Kingdom by Advice and Consent of their Privy-Councils only until the Stat ' de Tallagio non concedendo That is as Tallage is confest to be a Publick Tax because some of King John's Successors Tax't their Demeans without publick consent Therefore 't was provided in King John's time by way of Prophesy that no publick Tax Aid or Escuage should be raised without publick consent So that what was done after was a moral cause or occasion of what preceded 'T will be said that the thing that the Doctor went to prove was that the Common-Council mentioned in the Charter was the Great and Common-Council of the Kingdom to all intents and purposes Not that the King was restrained from levying a publick Tax without the consent of the Great Council But surely when he goes to give the reason why the Charter must be taken in such a sense we are to expect the proof of that not of something else quitting the thing to be proved If I can understand his dark meaning he was proving that Nullum Scutagium c. intended to restrain the King from levying publick Taxes without publick Consent That is to explain what he very obscurely drives at the restraint was only from Taxing the whole Kingdom not from Taxing his Tenants in Chief And the reason of this Article p. 118. viz. as taken in this sense is that several times after this Charter was granted Hen. 3. and Edw. 1. Taxed their Demeasns through England though not the whole Kingdom by Advice and Consent of their Privy-Councils only until the Statute De tallagio non concedendo was made 34 E. 1. And both Richard the First and King John had Taxed the whole Kingdom without common Assent before the grant of Magna Charta And when he has made good the Premises in this Argument for the meaning of the Article which will be ad graecas Calendas then he may conclude that this Article intended to restrain the King Na. he should have added only Nullum Scutagium c. only from levying of publick Taxes without publick Consent not to provide about Escuage or Tallage which none but his immediate Tenants were liable to And from hence when prov'd we might with some more colour and coherence raise the Consequence that the Common-Council mentioned in King John's Charter was the Great and Common-Council of the Kingdom to all intents and purposes But how that should appear from the mention of Aid and Escuage only will be a Question ' T is by him observ'd of Richard the First Accepit de unaquâque carucatâ terrae totius Angliae sex solidos But what proof is there from the word accepit or the collecting of a Tax ex praecepto Regis that he took it without publick consent Bracton Lib. 1. cap. 16. I am sure Bracton as good an Author as the Historian whom he Vouches tells us Carvage and such this was could never be raised but Consensu communi totius regni But if the King in his Privy-Council might Tax the Kingdom its self till the making King John's Charter and was restrain'd then I wonder our Reverend Author has made the Constitution of the House of Lords that is according to him the whole great Council to have been no earlier than the 49th of H. 3. And unless such a Council as is mentioned in that Charter were Constituted before Nay sometimes he Argues that it was not before p. 56. how comes it to pass that the Clerus and Populus which were of the Kings Council for making Laws and giving Taxes were not till 17. Jo. confin'd to such of them as were of the Privy-Council as well as Communitas populi after Magnates was meant of such people as were Magnates and Milites p. 110. liberè tenentes besides Barons were the Tenents in Capite 112. who by their Acts oblig'd all that held of them by Knights Service 113. that is all the Milites but not the liberè tenentes We are taught that in the 6 of King John Tenents in Capite only Against Jani c. p. 125 126 127. provided that every nine Knights should find a tenth for the defence of the Kingdom and that they who were to find them were all Tenents in Military Service Though the Record shews that besides the Miles vel Serviens Alius terram tenens was Charged with this And he vouchsafes not to take notice of my Argument that every Knight being bound by his tenure to find a man if this had not extended to all that had to the value of a Knights Fee Jani c. p. 225. though not held by Knights Service it would have been an abatement of the Services due and a weakning of the Kingdom Besides admit that Tenents in Capite only laid this Charge and only Tenents by Knights Service were bound by it here is such a Commune Concilium of Tenents as I say King John's Charter Exhibits and no Charge laid by them upon others Whereas he should have prov'd that they did oblige others without their consent But suppose Tenents only were Charged why might not the Charge have been laid by Omnes fideles in my sense as we find Omnes de Regno taxing Knights Fees only The Doctor in his Margin gives us an admirable nota p. 119. that Liberi were Tenants in Military Service or Gentlemen Rustici Socagers possessors or Freeholders in Socages only which is as much as to say that Freeholders were not Freemen unless they held in Military Service and yet a Tenement or Possession neither added to Glos. p. 10. or detracted from the person of any man if free or bond before But surely Mr. Professor has some colourable proof for his remark here For that let others judge Hoveden acquaints us with the manner of collecting a Carvage in the ninth of Richard the First which was that in every County the King appointed one Clergyman and one Knight who with the Sheriff of the County to which they were sent Galls Mâ—lites and lawful Knights chose and sworn to execute this business faithfully Fecerunt venire coram se senescalos Baronum istius comitatûs de qualibet villâ Dominum vel Ballivum villae prepositum cum quatuor legalibus hominibus villae sivae liberis sive rusticis who were to swear how many Plough Lands there were in every Town If here liberi and rustici are not meant for two denominations of the same sort of men that is ordinary Freeholders I will leave him to fight it out with Hoveden since he himself is directly contrary to the old Munâ— Hoveden shews us that these Socagers were legales homines such as chose Juries and serv'd on Juries themselves Against Mr. Petyt p. 36. c. but our new light
would have the Discourse about these ib. nay and the Conquest it self to be out of the Question and then pray what is the Question It cannot be whether Tenants in Capite represented p. 2. or by their Votes concluded all that held by any other Tenure Nay whether these and their Tenants could do it because this Tenure and manner of holding Estates came in with the Conquerour I hope I shall not seem tedious though I am long upon this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of a Conquest that Corner-stone on which if he knows what he do's which I cannot but doubt of sometimes he Erects a fanciful Scheme of Government And thus the lofty Fabrick rises one Story upon another William having made an actual Conquest Against Mr. Petyt thereby had the absolute Disposal of all the Lands of the Kingdom p. 35. and did p. 176. according to his lawful Power give all away to his Followers who though French p. 35. Flemmings Anjovins Britains Poictovins were all metamorphos'd into Normans p. 43. upon whom onely the Feudal Law was executed and observed The King's Grantees though ordinarily a Tenement or Possession neither added to Glos. p. 10. or detracted from the Person of any man if free or bound according to his Blood or Extraction might well be all the Free-men of the Kingdom because the Conquest had made all the English Slaves and the King granted onely to his Great Followers which were Free before But when these Grantees granted out to others p. 176. the Subfeudataries made part of the Freemen of the Kingdom as holding by Knights Service these were the men ib. p. 39. the onely Legal men that named and chose Juries and served on Juries themselves Carta H. 1. both in the County and Hundred Courts Barones Comitat. qui liberas habent terras in which Courts they were the onely Suitors Alas no body else had any free Lands in the Counties Therefore p. 42. these must have been the men that at first Elected two Knights in every County out of their own number and onely they were Electors when first the Body of them began to be represented And unless others are impower'd by the 8th of H. 6. c. 7. which restrains the numerous Electors to Free-holders of 40 s. per ann As the Tenants in Capite came before the 49th in their own Persons and represented the Body of the Commons of England and when first the Body of them that is the Tenants in Capite began to be represented they onely as was proper chose their own Representatives so it ought to be at this day And thus the Tenants in Capite that is they alone and yet they and their Tenants by Knights Service have ever been and still ought to be the onely Members of the Great Council I know he will venture hard but he will make all this good in his next if he can there being a narrow Interest in some for which they would sacrifice the Publick But I shall think our Government will have been finely brought to Bed by his Midwifry when such a monstrous brat is own'd by it Vid. Letter to the Earl of S. But if King William the Master-builder refus'd what this Author would make the Head of the Corner and was not so absolute a Conquerour as to leave the English neither Estates nor Fortunes Against Mr. P. p. 43. ib. p. 179. what becomes of his Airy Ambuscade He has the Confidence to refer to Dooms-day Book in every County for this Fiction and that will satisfie a man wilfully blind p. 176. that William the Conquerour divided all the Land in England amongst his great Followers Now what if I shew out of himself and this book of Judgments concerning Lands and Services that he divided very little of the Lands in England to his Followers to be sure that he was far from distributing all Our Author spared the particular Proof I 'll warrant it to make us believe it would require a Transcript of the whole Book but I think I shall impose upon no body by affirming without transcribing the greatest part of it that even where Lands were enjoyed by other Owners than such as held them in the time of King Edward and upon other Titles yet the Lands continued for the most part to hold in the same Manner as before Whereas William according to him brought in a new Manner and none were so much as Free-men who held not by Knights Service which he setled over all jure haereditario We generally shall find that there was no change of the Manner or Quality of the Service but only of the Quantity Tunc geldavit modo geldat for so much either more or less according to the Improvement or Fall of the Land and frequently that which before paid for a certain number of Hides paid nothing at the making of the Survey The Rent I conceive was in proportion to the value of the Land that being seldom named but only how many Hides Acres Roods c. there were and these Tenants seem to have held in free or common Socage Sometimes they were such as potuerunt ire cum terrâ quo voluerunt which I doubt not Doomsday Ties Taiâ—i tenuerunt non potuerunt ire quolibet uâ— flet tenuiâ— de Tofti sed non fuit alodiâ—m were the Alodiarii sometimes they were not so free but held by Villain Services though themselves were free and these were Tenants in common Socage Sometimes Milites are named but rarely so that 't is certain he can have but small Assistance from Dooms-day book and being there sometimes descent sometimes purchase and now and then the King's Grant is mentioned who can tell by that whether generally the Lands were enjoyed by the one or the other Title since especially 't is most usual only to name the Persons that held formerly who did then and by what Services I take it there are as many and as often English names there as others and though the 〈…〉 of names different from the former 〈◊〉 Vid. Caâ—den's Remains of Sir names from p. 136. to p. 141. that the Christian 〈…〉 which 〈…〉 from their Fathers are more us'd there than Sir-names But I thank him he has given me an easie Task to shew that in spite of his Conjecture this great Survey demonstrates that there were Proprietors of English-men who held Free-lands upon Titles paramount to what he insists upon If notwithstanding our Author's Quotation out of Tilburiensis But they should not claim any thing from the time the Nation was conquer'd under the Title of Succession or Descent Tilburiensis an Officer of the Exchequer who was for bringing Grist to the Mill I produce a List of Free-holders who enjoyed their Lands of the Seizin of their Ancestors Against Mr. P. their own p. 34. or theirs of whom they purchas'd Against Jan. c. p. 1. from before the counterfeit
soever you read it under the Liberties and free Customs will be comprehended their whole Interest in the Legislature whereas otherwise according to this Charter of all their Liberties the King 's Great Council had then only Power to raise Taxes though we find that all along they advis'd de arduis negotiis regni and consented to what passed into a Law Wherefore Against Jan. c. p. 13. ' t is strange there should not have been the same care taken that they might have thier Rights in Council setled as well as their Summons to it but if this Charter setled no other Right than this of granting Taxes Quere What other power the Great Councils have now by our Author's Principles For admit that by the New Government which he says was fram'd and set up in the 49th of Hen. 3. a Right of coming to the Great Council was giv'n to a body of men who before that had none yet there was no additional power given to the Council it self that he or any man can shew Because I would encounter the whole Force which they raise by colour of this Charter I address'd my self chiefly to the proving that admitting that Et ad habendum commune consilium Regni aliter quam ought to be joyn'd as of the same period with de Scutagiis assidendis 't will not make for the purpose of them that urge it being upon strict Inquiry it cannot be thought to extend farther than to such matters as concern'd Tenants in Chief only That this must be thus confin'd is prov'd I. Because there were Majores Barones not excluded by this Charter and so their ancient Right continued tho they are not within the meaning of that part he insists upon for this is only of Tenants in Capite that is such as were subject to the Feudal Law The Earl of Chester for instance was not under it as Earl of Chester Wardship was a necessary Appendix to that Tenure but even the Tenants within that County though holding other Lands of the King by Knights Service were however out of the King's Wardship much more the Count Palatine And surely no body before the Dr. ever took him for a Feudal Tenant by reason of the County of Chester though he might be oblig'd to attend in the Wars and pay Escuage in case of Failure for other Lands held in Chief in other Counties 2. There were others came and upon other occasions than what are here mentioned as Falcatius de Brent who was to come even without forty days notice which was required in the Case here and whereas giving Advice in great Affairs and the making of Laws were transacted in the Great Councils no such thing is mention'd in this 3. We have the Resolution of a whole Parliament the 40th of Ed. 3. That the Common Council of the Kingdom of Tenants in Chief was not the Great Council of the Kingdom for that King John resigned his Crown in the first Council but as they declare not in the last and this the very Circumstances attending the Resignation evince 4. If the opposite Doctrine be true then all the dignified and inferiour Clergy which did not hold in Capite Abbots Priors c. were excluded 5. This must needs be no more than a Common Council of the Kingdom for assessing Escuage and such other Aid as lay upon Tenants in Capite only because Tenants only stood in need of Relief from this Charter they only being concerned in the three things reserved to the King or in the Additions to them none other being charged in that kind without more general Consent and more than Tenants being Parties to the Grant Besides not only the advances upon Tenants Services but the ordinary Incidents were called Auxilia as well as those others which according to Bracton were not called Services nor came from Custom but were only in case of Necessity or when the King met his People as Hydage Corage and Carvage and many other things brought in by the common Consent of the whole Kingdom Now where the King reserves Incidents to Tenure only 't is to be supposed that the Reservation is out of the thing before mentioned and so that must be Services because of Tenure none but Tenants being named whereas when others are named we may well suppose the Aids given by others too to be intended 6. We may here divide the benefit to each sort of Tenant in particular I. As the Tenants by Socage Tenure only were talliable and that us'd to be without their own Consent here they have a Consent given them 2. As Tenants by Knights Service though not talliable yet had hardship in the Obligation to sudden Attendance convenient Notice is given and it should seem that the want of this for the assessing of Escuage was their only grievance proper to be redrest for their Attendance in the Wars was to be govern'd by Necessity and as a Court of Justice there was no need of them 7. There is a Difference to be observed all along between the Great Council and such an one as is mentioned in this Charter I. For the Persons composing the one and the other 2. The matters of which they treated And 3. the times of holding them For the Great Councils by his own way of arguing there was at least one Great Council in the Reign of William the First where were more than Tenants in Chief The Tenants in Chief he supposes to have been only the Normans and Foreigners who were Enemies to the English Laws and the only great men by his Rule wherefore if the English Laws were retained at the Petition of any great body of men here they must be populus Jani Anglorum facies nova p. 55. inferiour People of England This was Ad preces Communitatis Anglorum Universi compatriotae regni petition'd as appears in the very Body of the Laws then received but these as despicable as they were had got together a numerous and mighty Army of which they made Edgar Etheling General these are all called Primates mitius coepit agere cum primatibus regni To shew that 't was matter of Council 't was argued Pro and Con at Berkhamsted Selden ad ead fo 171. where post multas disceptationes after many Disputes the English Laws were setled I need urge no more in this Reign except that which he hath yielded to my hand in effect viz. that all the Free-holders of the several Counties of England met this King in a Great Council at Salisbury For he himself tells us that all the Free-men of the Kingdom held by Knights Service and here were all the Knights so more than Tenants in Capite and all the Free-holders too as they were Knights all holding by Military Service But if there were other Freemen such as held in Free and common Socage qui militare servitium debebant who ow'd Military Service for the defence of the Kingdom though they held not by it why were
Parliament But there is yet a farther Evidence in that as the same Matters were handled in the one and the other sometimes in conjunction with the great Council sometimes separate from it so 't was in the same manner And thus Thomas de Berkley who was a Lord in the 4th of Edw. 3. was Tryed in Parliament by a Common Jurâ— Rot. Parl. 4 Edw. 3. De bono malo ponit se super Patriam upon which a Jury of Knights was returned And this to be sure was according to the Common-Law the way of Tryal in the ordinary Curia which doubtless Glanvil lib. 2. c. 7. was that Assize mentioned by Glanvil Clementiâ Principis de Concilio Procerum populis indultum Where there alwayes was a Jury of twelve at the least Farther Before the Itinerant Judges were setled and before the Courts fixed at Westminster Pleas must needs ordinarily have been coram ipso Rege he being personally present And that the Tenants in Chief 〈…〉 appears by the Constitution of Clarendon which requires it in affirmance of the Common Law Archiepiscopi Episcopi universi personae regni qui de Rege tenent in Capite debent interesse Judiciis Curiae Regis c. Our Adventurer in Antiquities who treats the Author of Jani Anglorum Facies nova with much contempt has this passage p. 26. Notwithstanding he sayes it is agreed on all hands the ordinary Curia was held thrice a year I never heard of any one of his opinion but himself He would make the great Court held at these times he mentions and the great Confluence of Nobility then to the Kings Court to be the King 's ordinary Court for this Dispatch of ordinary Business and Controversies between the King and his Subjects or between man and man I will not deny but often Petitions might be put up and Complaints made to them about private matters such as alwayes have been to the House of Lords and many more of antient times than have been for a Century or two of years And that they did determine and pass Judgment in those Cases But that they were therefore the King 's Ordinary Court I think no body will say but such as never read antient History or Lawyers or at least never intend to understand them Truly he has an excellent Faculty to bring men's Arguments into the shape of his own and then 't is easie even for him to expose them He would have it that according to my Notion the House of Lords is the King 's ordinary Court because of determining in matters of ordinary Justice whereas I make the Notion of Ordinary not to consist in that onely unless it be at ordinary or stated times Nor do I say that the House of Lords is an Ordinary Court but succeeded into the Jurisdiction of the ordinary But he does well to serve my Hypothesis in making the Comparison between these two Courts The one of which as I before observed succeeded to and gives an Idea of the other though it agree not in every particular And as the House of Lords divided from the Commons never could make Laws so neither could the ordinary Curia unless when joyned to the greater though both the House of Lords and the Curia before were the Supreme Courts of Judicature And if the Curia was held thrice a year and confin'd to Matters of ordinary Justice which I think I have proved in shewing that the Legislative Power was vested in more than the King and his Tenants and Officers then I find not that our Champion so much as blunders upon any thing against what I say But to prove more particularly my Assertion which he would have to be my singular Opinion Knighton to instance in an Author of the best eredit tells us of King William the First Knighton f. 2354. In praecipuis Festis profusè convivabat natale Domini apud Gloverniam Pasche apud Wintoniam Pentecosten apud Westmonasterium quando in Anglia foret tenere consuevit On the chief Feasts he used to make great Entertainments when he was in England He used to keep his Christmas at Glocester Easter at Winchester Whitsontide at Westminster Besides at these times when the height of the Feasting was over Causes us'd to be heard Eaâ—merus f. 37. as Eadmerus who might well know informs us Peractis igitur festivioribus diebus diversorum negotiorum Causae in medium duci ex more caeperunt When therefore the most Festival dayes were over they began to treat of divers Causes as was the usual manner To these Feasts there us'd to come onely Tenants and the King 's great Officers which I need not go to prove since our Author would have Tenants onely even exclusive of Officers that were not Tâ—nants to have come to the greatest Councils So that the Court being held thrice a year the Members of it the same which I have shewn and their Business ordinary Tryals here is that Ordinary Court which I have contended for And thus having given some reason for my confidence p. 49. I may expect to be believed This might serve upon this Head but I thank him he generally gives me occasion by reason of his Exceptions to confirm the Rules which I take He fancies he has a great Advantage over me Jan. c. p. 191. by my saying that the Administration of Justice which I mean of the common or ordinary Administration was taken from the ordinary Curia and fix'd at the Courts in Westminster Hall Communia placita non sequantur Curiam nostram And not observing that there was the same Clause in King John's Charter I had plac'd it some three years too late according to him though in truth Glanvil lib. 2. c. 6. there were Justices in Banco sedentes which seems to be meant of a fix'd place in the time of H. 2. And so it must have been since King John's Charter was not introductory of any new Law But I understand not the force of his Argument that if this Council summoned p. 46 47. as is there were the Curia Regis Ordinaria and went off by reason of this Clause it certainly went off before it began Unless he acknowledge that the Curia there provided for be it ordinary or extraordinary was not in Being before And truly I shall not quarrel with him for this But I appeal to any man that will consider without Byass Whether ' t is manifestly prov'd in the Answer ib. that after the granting of this Charter by King John there were many general and great Councils or Colloquiums summon'd by Edict according to the Form which he would have to be there prescribed However it seems by him that there was no such Form for general and great Councils before But how well do's he understand what I say I make but part of the Power of the Curia to have been taken away by Magna Charta or be it by the Law there affirmed but that
required or what was therein contained Upon this Habilo Concâ—â—io mature Advice being taken and that of the great Council for that at least consented â—n not opposing the King sent his Precepts to the Sheriffs throughout the Kingdom to cause an Inquest of twelve Knights or else of twelve lawful men â—hat is Free-holders to be return'd 12 Milites vel legales homines out of every County respectively concernâ—ng the Liberties which were in Engâ—and in the time of King Henry that King's Grand-father The Charter mentioned by our Adversary was 9. H. 3. And so after this Tryal the Precept for which was 〈◊〉 indeed the actual Confirmation of what they found or Judgment upon it was not till two years after â—ut then the Clerus Populus cum Magnatibus where by the way the Populus could not be the Magnates â—he Inferiour Clergy and Laity with the great ones go on upon their former Issue and would give no Supply to the King's Wants till he would grant Petitas Libertates the Liberties they had before sued for or demanded not barely as a Confirmation of King John's Charter M. Par. Supra p. 305. but indeed these very Liberties which they pleaded to have been such in the time of H. 2. The Denial of which occasioned the fighting for them against King John were in Substance no way different from the Grant made by King John in Affirmance of the Common Law And so the Charter of H. 3. was in nullo dissimilis to King John's and if there were any Difference the Clause by which the great Priviledge of Tenants in Capite is argued for being omitted 't is a Sign that admit it constituted them a full Parliament this was not their Right in the time of H. 2. nor return'd so to have been but was the only thing extorted by Force and fell with it This were enough to set aside all his Arguments nay and that Language too which serves instead of them but I cannot deny my Reader and my self the Pleasure of observing him more particularly and if it may be of knowing him intus incute His two main Designs if he be steady to any but to contradict right or wrong are 1. To prove that William the First took away from the English their Estates â—nd as he imposed the Tenures and Manâ—er of holding our Estates in every respect so he did all the Customs incident to those Estates The Customs I thought had been within the Manner but let that go Des Cart. Principiae Phil. p. 17. Per modos planè idem intelligimus quod aliâ—i per attributa vel qualitates c. the Manner implies the Quality as he might have been taught long since â—y Des Cartes this extended to all the Estates derived or come to any now â—nd yet in the very same page 't is but most of them being feudal not all I have already shew'd his Denyal of the Conâ—ueror's Right to take any and thus â—his Mountain is finely brought to Bed by the Dr. 2. As a Consequent upon William's dividing the Land amongst his Followâ—rs he would shew that this King's Grantees and that in Capite by Knights Service were the only Members of the Great Councils Against Mr. Petyt p. 2. and that no others had any Communication in State Affairs unless they were represented by the Tenants iâ— Capite Against Jan. c. p. 12. In another place No doubt but the Tenants in Capite were the General Council of the Nation If therefore he own that there were Councils more general than such as were compos'd of Tenants in Capite only does he not yield the Cause Not to repeat his Concession for Towns incorporate not holding in Capite he yields it for single Persons who still held not by that Tenure In many places he grants As p. 112. That all the Nobility of England met to treat with the King Against Mr. Petyt p. 131. or to the like purpose Farther that the Baronage or Nobility included the Tenants in Capite and sucâ— great men as held of them by Military Tenure So that in effect if the Tenure or as he expresses himself A Tenemenâ— or Possession Glos. p. 10. neither added to or detracted from the Person of any if free oâ— bound according to his Blood or Extraction An ordinary Free-holder in free or common Socage might as well have been provided for as to a Right in coming to Parliament as a Tenant by Knights Service of the King's Tenant in Chief But he tells us then theâ— must be great men holding by these Services But to shew that he insists not upon this finding a vast number of men at the passing of King John's Charter which was Inter Regem liberos homines totius regni Glos. p. 26. he yields that the Retiâ—ue and Tenants in Military Service were Members of the Council though upon second Thoughts he tells me these liberi homines were the same which â—he King calls in his Charter Liberi homines nostri Against Jan. c. p. 9. These Liberi homines nostri were Tenants in Capite So that the Tenants of Tenants in Capite were Tenants in Capite and this suppose explains that Passage where â—e says Against Mr. Petyt p. 176. Whoever held of the Tenants in Capite by mean Tenure in Military Service held of those Barons or Tenants in Capite by the same or like Tenure that themselves held of the King That is every Tenant by Knight's Service of the King's Tenant by Knight's Service held in Knight's Service which â—dentical Proposition I heartily thank â—im for or else every such Tenant of â—he King's Tenant in Capite held of the King in Capite that is immediately and â—ot immediately in the same respect But these Tenants of Subjects such as were Members of the great Council were however concluded by the Acts of their Lords Against Mr. Petyt P. 113. They that held of the Tenants in Capite by Knights Service were bound by their Acts viz. The Acts of the Tenants in Capite that is These Tenants were Members of the great Council and no Members as their Lords represented them and yet did not represent them but they came themselves But to be sure none but Tenants by Knights Service who were Homagers and sworn to obey their Lords as the ordinary Free-holders were to keep the Laws and defend the Monarchy Jurati fratres-franck-pledges and the Peace of the Kingdom were in his Sense bound by the Acts of their Lords So that there was a necessity for the Bull and Multitude of Free-men or small Free-holders Glos. p. 31. to be bound with Sureties to their good Behaviour in such manner as the Law had requir'd amongst themselves otherwise the Government could not secure it self against their Violations of the Laws they neither meeting in the Great Councils nor being bound by the Acts of such as met any more than the Tenants in