〈◊〉 la Benche Hugo D'aule junior 〈◊〉 centur tum vocentur audiantur ibidenâ— But to Partiality Against Mr. Petyt p. 79. hence 't is clear 〈◊〉 King and his Council were equally Judgeâ— when it was necessary to call them and 〈◊〉 them to come as they were of their Right and Pretences to come The King being sole and absolute â—udge of the Necessity of calling Parliaments he makes the Calling such as â—ould prove their Right according to â—aw to come as often as his Majesty â—all please to call a Parliament to be â—s much at the Disposal of the King as what is his undoubted Prerogative or â—lse he denies the King's Prerogative â—o call Parliaments at his Pleasure if he â—o not contend that he may leave out â—â—ose who had with him the greatest â—ight Tenants in Capite from the Parlâ—amentary Summons And this being â—rescribed to from before the 49. of â—en 3. between which time and the 6. of King John there was no Alteraâ—on in the Way or Right of coming to â—arliament How can he free himself â—â—om contradicting that Way and Manâ—er which he says was setled then If to evade it he say Though 't is a â—ight according to the common Rules 〈◊〉 Law yet 't is supersedable by Preroâ—tive I suppose my Superiours will give 〈◊〉 an Answer if upon this Account it â—ill be no Contradiction however â—e have enough to make us laugh while at other Particulars And thus has our Author like another Don Quixot encountring the Windmils been miserably mawld with hiâ— own Whymsies returning too quick upon him nor can Sancho Pancho hiâ— Squire afford him any great Assistanceâ— by curing some literal Mistakes The Bookseller to the Reader which are but outward Scratches while the inward Bruises remain CHAP. II. Of the Reputed Conquest SECT 1. HIS Notions of the Conquest whether more absurd or false I cannot say fall now under Consideration buâ— good man Against Mr. Petyt p. 43. fearing least that might 〈◊〉 too far improved he says this doth noâ— directly reach the Controversie between us Indeed if it were only about thâ— Members of the great Council before thâ— time for he takes in all the time before as far back as Mr. Petyt whom 〈◊〉 laughs at for it I will grant that thâ— were not to the purpose But what account can be given why the Folck-mote â—held at one certain time in the year when all the Bishops in the Kingdom were to meet together about the great Affairs of the Kingdom with all that â—ad any Property such as were to find Arms according to their real or personal Estate should of a sudden without a Conquest be turn'd into an Assembly of â—he King's Tenants upon the old legal Title I cannot comprehend If William the First divided all the â—ands of the whole Kingdom then 't is â—ot probable that others than they who derived from under him should have had any share in the Government But if he did not thus act like a Conâ—erour how is it to be imagined that 〈◊〉 old Socagers had nothing to do in â—he Great Councils Nay upon another account this is â—eedful to be considered for as a Conâ—uerour p. 39. we are told he made all the â—ree-men of his Kingdom Tenants in Military Service But if he was no Conâ—uerour in this Sense insisted on then â—ere must be a vast number of Proprieâ—â—rs that could not be any way bound but by their own free Act or Consent express or naturally implyed in yielding to be represented SECT 2. That he is so far proving the Title of William the first by Conquest that he makes him an Usurper all along proved by the History of the Conquest compared with what he says about the Titles of William 2. and Hen. 1. I would fain ask a serious Question or two about this same Conquest Had not William many Sharers in his Victories And can Mr. Dr. with all his Art and the Help of the Tutelary of a certain Profession Madam Cellier discover at the Birth which came from Conquering which from Vanquish'd Ancestors I 'll take it for granted King William conquer'd not all alone Sampson himselâ— could not have done it even with his wonder-working Jaw-bone But pray Mr. Dr. spare me another civil Question Do not you your selâ— make an Vsurper of your mighty Conquerour who swallowed all the Land of the Nation or devoured it between him and his Myrmidons You p. 35. in effect yield that his Title was by Election by reason of the Factions amongst the Saxon and Danish Nobility and People the Pope's Encouragement and siding with William and the Inclinableness of the Clergy to his Cause You might have added that before his Entrance many Normans were setled here in Power and Property It being thus William the Second who you say p. 51. had a Title by his own Sword and was chiefly assisted by the English p. 54. and Henry the First who cajold the great men and the Army had the same kind of Title with your mighty one Nor is there weight in the Objection that there was so small time between the Death of one and crowning another King p. 60. that it was not possible for the Clergy or all the People of England or any that represented the People of England to be at the Consecrations and Coronations Because whoever has had the Crown set on his Head by them that could meet upon the Occasion unless there had been a very powerful Interest or Faction against him has generally been owned for King and had a tacit universal Consent Besides all the Nation was not present when William the first was crowned any more than they were when he gain'd the Victory over Harold and therefore if these two Coronations are set aside as factious so many the other and so it must be For An Election is or ought to be Against Mr. Petyt p. 51. a free solemn deliberate sober sedate and the Lord knows what Act of the whole People where they have a Right whereby the major part of them do choose this or that Person or Thing for such or such Ends and Purposes and not an undermining crafty cheating and forcible Act of a Party or Faction for the setting up this or that Person or using this or that means for the obtaining their own Designs and Purposes Let him I say consider and make a difference between these two Acts of the whole People and a Faction and he may easily make a true Judgment of all the pretended Elections of our English Usurpers and all other Traitors whatever How easily may this Rule be applyed to the first William Against Mr. Petyt p. 35. whose Success was facilitated by the Factions among the Saxon and Danish Nobility and People as our Opponent confesses besides the Faction raised by the Pope for him and by his own Country-men who were here before and could not but be very busie for him if he
date of the English Slavery what shall we judge of his Vagaries p. 43. Not directly reach the Controversie which he himself owns to be impertinent I shall take no notice of Ecclesiastical or Kentish Titles because the Church and that County may be thought to have been particularly exempted from the common Calamity 〈…〉 nor shall Freeholders of Houses have a place here I must observe that though the same names are often repeated Sir-names being then most in use we cannot tell but that they might have been different Parties but however if there were so many distinct Properties 't is enough Surrey 1. Hugo de Port was a very great Proprietor Domesday He was not Tainus Regis as may be found under the Title Terra Hugonis de Port many Mannors he had and as appears in Hampshire he had at least two Mannors Cerdeford and Eschetune from his Ancestors before William's Entrance And even this is a ground to believe he was a great man that he had a Sirname or Addition Whereas Camdens Remains p. 136. if we believe the great Antiquary Mr. Camden Sirnames were not setled among the common People fully till about the time of Edw. 2. 2. Oswald holds Michelham Idem tenuit T. R. E. 3. Seman holds in Mideham 4. Otbert holds an hide in Michelham Antecessor ejus tenuit in Vadio which his Ancestor had in Mortgage of Brictrick 5. The Earl of Moreton Ipse Comes tenuit Estreham T. R. E. a very powerful Prince as I may call him held Estreham in Tenrige Hundred in the time of King Edward He enjoyed several other great Possessions of the Gift of King William I doubt not indeed but he was a Norman born yet he was here before the Entrance of the Norman Duke and might not improbably be in Favour with King Edward the Confessor Camdens Remains p. 136. who was all Frenchified He to be sure had some Lands within the Kingdom of England p. 176. which he enjoy'd not from William's Division 6. Seman holds one Hide in Mideham Tenuit de Rege Ed. nunc tenet de W. Rege 7. Godwin holds one Rood 8 William the Hunter holds Littleton 9. Oswald holds Pechingford 10. Seman holds one Rood in Copedome Hundred 11. Oswald holds Feceham 12. Teodorick the Goldsmith holds Clevintune 13. Chetel the Hunter holds Lodesorde Pater ejus tenuit de Rege E. Hamshire Terra Tainorum Regis 1. Alwi the Son of Saul holds Tederley Pater ejus tenâ—it in Alodium de Rege E. Nota In Cambridgeshire of 37 Owners of Houses in the seventh Ward but 3 were Franciginae 2. Vluric holds Locherlei 6. Four English men Brothers I take it hold Wallope 7. Edmund holds Land of the King Pater eorum tenuit in Alodium 8. Agemund holds Weldeve Ipsemet tenuit in Alodium de Rege E. 9. Another Agemund holds Hotlop 10. Alwi holds Locherslei 11. Agemund holds Sotesdine 12. Sawin holds half an hide in Rocheborne 13. Vlviet the Hunter holds Riple 14. Agemund holds half an hide in Totintone 15. Alric holds half an hide 16. Godric's Sons hold Haugre 17. Alwin holds two hides 18. Ravelin holds Clere. 19. Lewin holds one Rood in Clere. 20. Vluric holds a Mannor 21. Alwin holds Merceode 22. Cola the Hunter holds half an hide 23. Saulfs Wife holds Hoburne 24. Vulgar holds one Rood in Melleford 25. Godric Malf's Sons hold one hide in Esselei 26. Aluric holds one hide in Einforde 27. Aluric holds a Rood and an half in Vtefel Leving and Chetel held it Aluric purchas'd it in the time of King William 28. Aluric holds one hide in Broceste 29. Godric Malf's Sons hold Mintestede 30. Oirant holds Celvecrote 31. Alsi holds Abagine The two next held in Alodium of the Confessor 32. Swartin 33. Edwin 34. Ralph Mortimer holds several Possessions some of which he had jure haereditario from before the reputed Conquest Ipse Radulphus tenet Ordie This Mannor T. R. E. extra Ecclesiam emptum fuit eo pacto conventione ut post tertium haeredem cum omni peeunia Manerium Ecclesia Sancti Petri de Episcopatu recuperet nunc qui tenet Radulphus est tertius haeres Barkshire Berroche scire 1. Walter holds one hide in Cheneteberie which King Edward gave his Ancestors De firma suaÌ„ solut ab omni consuetud propter Forestam custodiend excepta forisfactura Regis c. 2. Edward holds one hide in Coserige he held in Alodium of King Edward 3. Alward the Goldsmith holds Sotesbroc Pater ejus tenuit de Regina Edw. 4. Eldeva a Free-woman holds in Henret one hide of the King in Frankalmoigne which she held T. R. E. and could go whether she would 5. Alwin holds Ceuresbert which he held T. R. E. Wiltshire Wiltscire 1. Brictric holds as his Father did T. R. E. Wochesie Straburg Stratretone and Odestock 3. Brictric and Alwin hold Colesfeld Ipse tenuit T. R. E. 4. Aluric holds Wadone 5. Aldred holds Bimerton Ipse tenuit T. R. E. 6. Cudulf holds Wintreburne 7. Cheping holds Haseberie 8. Cola holds Gramestede Pater ejus tenuit T. R. E. 9. Gode holds one Hide in Stotecome Ipsa tenuit T. R. E. 10. Edwin holds Chigelei 11. Edric the blind holds Hertham 12. Edward holds Widetone Pater ejus tenuit T. R. E. 13. Edmund the Son of Aculfe holds one Hide in Bredford 14. Harding holds Winestone 15. Turchil holds in Contone 16. Vluric holds three Roods of Land in Wintrested and one Rood in Tuderlege 17. Vlnod holds 1 2 Hide in Bramessage 18. Wendsey Vit ejus tenuit T. R. E. the Wife of Titecome holds Land 19. Lisman holds three Hides in Melchesham 20. Wado holds one Hide in Bereford 22. Otho and Swain hold the Lands which their Fathers held Tenentes Terrarum quas tenuerant eorum patres T. R. E. T. R. E. 23. Savic holds Lachertestoche Gest frater ejus tenuit T. R. E. 26. Ceviet Aifild and Eldid held divers Lands which their Husbands held T. R. E. Dorsetshire Dorsete Terra Tainorum Regis 1. Gudmund holds Midletone 2. Bollo the Priest holds Mapledore Ipse tenuit cum aliis 7 Tainis T. R. E. 3. Brictwin holds Waia 4. Vluric holds Mordone Pater ejus tenuit T. R. E. 5. Alward holds Tornecome 6. Ulviet holds Winburne 7. Godwin the Head-borough holds one Hide in Winteburne 8. Swain holds Winteburne 9. Vluric the Hunter holds one Hide 10. Brictwin above named holds Ciltecome 11. Brictwin holds Wadone 12. Saward holds eleven Rood in Caundele 22. Ten Thayns hold Chimedecome Ipsi tenuerunt T. R. E. pro 1. Manerio Omnes qui has terras tenuerunt T. R. E. Potuerunt ire ad quem Dominum volebant Somersetshire Summersete 1. Brictric and Vlward hold Bochel and 2. Siward holds Ettebere 3. Vlf holds Havechewelle 4. Alward and his
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
ow'd him in Gratitude for his delivering him from the unmerciful Norman Wido Contigit ut Heraldus filius Godwini de Angliâ navigare vellet in Normaniam sed in terram quae vocatur Pontâ—ium devenit quem Wido comes ejusdem patriae cepit in Custodiâ tenuit donec industria Willielmi sapientissimi Comitis Normannorum eum liberavit c. Brevis Relat. de Willielmo 1 o per Sil. Taylor that had detained him in Prison Yet he would not follow the wholsome Advice of his Brother Gurth who foretold that Flight or Death would be the Reward of his Perjury while they fighting for their Country M. Par. f. 3. M. West f. 223. might expect a better Fate Tir'd and his Army scatter'd with a bloody though successful Battel against his Brother and the Norwegian Harold breathing nothing but Victory upon News of the Normans coming he hastens from Stanford Bridge to Sussex and nine Miles from Hastings before he could put his Army into Array and as some say before half of it came up he eargerly encounters the fortunate Norman and there was his last Scene of Action Rad. de dicet so 480. So Mat. Par. f. 3. The People thought that he deserved to be their King who though by Artifice and a dissembled Flight could conquer the great Harold William Nec diutius verò ibi immoratus versus Lundoniaâ— principalem civitatem Angliae cepit ire sic ipsam terram Anglorum conquirere Brevis Relat. per S. Taylor fo 193. with great Wisdom hastened to London where doubtless he had many Friends of those Normans that were in favour under the Confessor besides those which they and the Slaves and Mercenaries to the Roman See could whedle to his side and then the Feuds between the Saxon and Danish Nobility and People made one Party for him if it were only out of Faction and opposition to the other He well knew if the City declared for him he did his Business in great Measure that being the Heart of the Nation from whence the Life of Power diffuses it self Many who had true English Blood in â—eir Veins and were against the Reign â—f a Foreigner had been lab'ring an Inâ—erest there Florentius Wig. f. 634. for the setting up Edgar Etheling the Nephew of Edmund Iron-â—de and lineal Heir to the Crown But there was so short a time from the Death of Harold to William's sudden â—oming up to London that they could â—ot bring it to any Head and thereâ—ore they that engaged in it and the â—hole City of London Army enough 〈◊〉 have drove Duke William to his Country or his Grave uncrown'd â—ame out to meet him as far as Berkamstead in Hertfordshire where the forâ—unate Duke Sim. Dunelmensis f. 195. sic Hoveden f. 450. Foedus poepigit made a â—eague or entred into Terms with â—hem they giving Hostages for the â—erforming the Fealty or Allegiance which they promis'd him but like geâ—erous Englishmen who were never â—ood at Treaty rely'd at that time â—pon his Word for that reciprocal Feâ—ty which if we believe Sir Henry â—pelman Kings used to swear to their subjects Glos. p. 271. Jurabat aliquando Rex ipsubditis suis fidelitatem mitto exteros sic autem de Canuto Rege Flor. Vig. in anno 1016. Fidelitatem illi juravere quibus ille juravit quod 〈◊〉 secundum Deum secundum saeculum fidelis esse vellet eis Dominus The Agreement as Florentius acquaints us was made with Prince Edgar amongst others and admit that alâ— Pactions with the People were voidable sure he was bound by what he madâ— with him who if any one had the Title to the Crown He fought with Harold on the 11â—â— of Nov. and on Christmas was crown'd at Westminster upon his own desire to come in like a natural Prince either by Choice or by Succession His Coronation Oath was taken before the Altar which was supposed to add to the sacred Tye and this was coram clero populo The Clergy and Laity without distinction by Honours were Parties as well as Witnesses and the form as is agreed both by Simeoâ— of Durham Sim. Dunelm f. 195. Flor. Wig. f. 634. Hoveden f. 450. Rex dicitur à regendo Bracton Florentius and Hoveden was Velle se sanctas Dei Ecclesias ac Rectores illarum defendere nec non cunctum populum sibi subjectum justè ac regaâ—â— providentiâ regere rectam legem Statueâ— tenere Rapinas injustaque judicia penitus interdicere That he would defend the holy Churches of God and their Rectors and likewise rule all his Subjects with Justice Viz. According to Law and that Care which befits a King that he would both make and himself keep right Law Viz. Give his Assent and wholly interdict Rapines and unjust Judgments The Solemnities which used to be perâ—ormed by the Arch-bishop of Canterbury â—ell to the care of the other Arch-bishop â—ome give the reason because the Pope â—ad declared Stigand who was then in â—he See of Canterbury a Schismatick and â—hat he was suspended from his Office â—y Ecclesiastical Censure Bromton f. 962. But Bromton â—ells us and puts it in the first place â—hat 't was said by some that Stigand reused to do it because he look'd upon William as a bloody man and an Usurâ—er And William of Newberry is positive 〈◊〉 it Newbergensis p. 1. Cumque peractâ Victoriâ tyranni noâ—en exhorrescens legitimi Principis â—ersonam inducere gestiens à Stigando tunc â—emporis Cantuariensi Archiepis Episcopo in Regem solemniter consecrari deposueret ille â—iro So Bromton supra ut aiebat cruento alieni juris invaâ—ri manus imponere nullatenus adquievit And when after the Victory gain'd he being afraid of the name of Tyrant and desirous to assume the Person of a lawful Prince entreated to be solemnly consecrated King by Stigand then Arch-bishop of Canterbury Stigand would by no means lay his hands upon a man as he said bloody and an Invader of anothers Right or that took what was none of his own I conceive it most probable that this Prince who according to his Character could not easily forgive them that caus'd him any Trouble being mindful of the Check which Stigand gave him even after London had taken Terms purposely wav'd taking the Crown from one that rival'd the Pope in Spiritual and him in temporal Power and had bid open defiance to both Wherefore his being crown'd by the other Arch-bishop Et potissimè Stigandum Bromton fo 962. and the Jealousie he had of Stigand which made him take particular Care to have him with him into Normandy Quia quidam laborarunt utpote Tho. Sprot alii c. Prologus Willielmi Thorne fo 1758. lest his Authority in England should unsettle his new got Kingdom gives a strong Inducement to the Belief of what William Thorne who wrote in the time of
to his Parliament and no others unless by chance But pray what a Reflection is this upon several excellent Monarchs Successors to H. 3. whom he renders Denyers of their own Acts though under the Broad Seal But there is an Argument in the Parliament Rolls 3 H. 6. p. 12. upon the Question of Precedency above-mentioned where 't is taken for granted that our Kings and Queenâ— had not then such a Prerogative to do wrong If soch commandementz shold make right and yeve title it wer to hard for yen shold it seme yat neither of my sayd Lords Erls Mareschal and Warwyck shold fro this day never sitteâ— in Parlement without new Commandement To tell the Lords who are concern'd 〈◊〉 this that there are many who have an â—â—defeazable Right by Patent and some â—he first of whose Ancestors or themselves ever had any more than the ordinary â—rits without creating Clauses or any â—her than such as when any Parliament â—as to be called went out of Course and Right to them who were Lords before â—ould be as needless as the Orators Disâ—ourse of Tacticks to the Carthaginian Hero I shall be bold to offer to Consideration â—herein consists the Right of such a Sumâ—ons and I take it to be in the Prescripâ—ion though perhaps none were setled in â—he Right of coming till the 11th of R. 2. Yet the time from whence they preâ—cribe might be Earlier and yet whether Writ alone or only as fortified with Preâ—cription gave the Right here was what was not still left to Royal Pleasure onâ—y I conceive that a Writ of special Sumâ—ons of it's self gave no man Right to come always after this as a Lord for if it made him not a Lord it gave him no Right to come to the Lords House as such And this I take to be evident from the Records of the several Summons of the twâ— Furnival's Jan. Angl. at the latter end Father and Son who had thâ— same Writs of Summons with the Lordâ— and yet were no Lords for the loweâ— Degree of Lords was Barons and thâ— Son pleads that his Amerciament in a great a Sum as a Baron was against Law for that he neither held by Barony neâ— Baro suit intitulatus nor was called Bâ—ron nor obtained that name which could not have been if he was one of the Baronâ— in Parliament so that he could be no more than an Assistant as the Assistants havâ— Writs in the same form with the Lords Wherefore if any claim'd from Writ 〈◊〉 must be by prescribing to have had it 〈◊〉 long time in his Ancestors as amounts 〈◊〉 a Prescription by the Custom of Parliament which is the Law of it Besides 〈◊〉 can be no Objection that to a Prescription 't is necessary that it should have been iâ— memorially so as nothing to the contrary can be shewn whereas the very first Wriâ— may be seen for this most plainly is different from common Prescriptions both in the manner of it and in the Reason of thâ— thing 1. In the manner We find the Burgesses of St. Albans to lay their Prescription only from the time of the Progenitors of E. 1. which might be only from within the time of King John or from the beginning of his Reign if but from the later end â—here were an hundred years for a Prescripâ—ion 2. But besides this apparently differs in the Reason of the thing so that it must needs have a different Law from common Prescriptions For other things the Ground of the Right is the always having enjoyed either by a man's Ancestors or by them whose Estate he has And if it were at any time in others and it could not appear when they parted with it 't was a manifest Injustice for them to make such a Claim to have it so that â—he appearing upon Record when the first Writ was is an Argument that a Prescription may lawfully be made in this Sense 2 There were Commonalties Rot. Parâ— 8 E. 2. Bodies contracted by Representation that came to Parliament of Right who yet were Lords in the Drs. Sense being they held in Capiâ—e as he supposes the Knights for the Counâ—ies to be Grantz the same with Magnates as they held in Capite I am persuaded in this he taught the most Learned what fell not within their Knowledge oâ— Belief before and for a while made them quit that peice of Philosophy Nil admirari in wondring at the Sagacity of the man However by this time 't is wond'rous plain from his Demonstrations that admit a Difference was made between Lords and Commons with distinct Power yet the Commons of Counties Citties and Burroughs were not only often called by the same Names Yet I take it that such Tenants in Capite had no share in the Judicature because then 't would have continued still but were strictly Lords and therefore had a joynâ— Power even in Judicature For if they came before as Tenants in Capite and that Tenure made them noble 't was to be ever in the same manner since 6 R. 2. c. 4. But the very Traders nobilitated by the Dr. lay claim to and have allowed them a Right from Prescription It may be objected from hence against my Notion of the Lords which held in Capite being pass'd by at the King's Pleasure tho others were not that here a Prescription is laid upon the Tenure in Capite And it being from before the 49th oâ— Hen. 3. there could have been no such Settlement as both my Opposite and my self receive He perhaps has set aside this in his own Opinion but I must confess I can't embrace his new Sense However I think it no hard matter to give a natural Answer For the Author cited by the faithful Mr. Camden acquaints us with no other Alteration than what related purely to Singular Personâ— ex tanta multitudine Baronum Mat. Par. Quasi suâ— numero non cadebat Who being scarce to be numbred made very great Disturbances which required a new Model and a Restriction of the Numbers provided it might be with a just preservation of the Rights of every one in particular but those great Bodies which before came by Representation could admit of no change without a tendency to Destruction Agreeably to this Observation the Inhabitants of St. Albans plead their Right to be represented in Parliament not barely because of Tenure in Capite Rot. Parl. 8 Ed. 2. but Sicut caeteâ—i Burgenses regni as other Burgesses in â—he like Circumstances 3. I hope I have some Reason for my Confidence when I affirm that I ought 〈◊〉 differ from this New Light when it instructs us that the King 's appointing â—nd ordaining p. 227. That all those Earls and â—arons of the Kingdom of England to which he thought fit to direct Writs of Summons should come to his Parliament and no others or as he repeats the same meaning the Arbitrary Practice of Henry the Third Ed. the First and his Successors
the Iniquity of Mâ—nkind And whatsoever Act preceeds from the King's Ministers or whatever Malice be in the Heart of any of his Subjects the Law that Angel with a flaming Sword deâ—ending his Throne will not suffer it to affect him Nay if through Misunderstanding of the Law it should happen that a King go contrary to his own Justice 't is as if no such thing had been done So Plowden's 〈◊〉 iâ— he having an Estate in Taile Alien though from a common Person it would work a Discontinuance yet from him it has no Effect because it would be a wrongful Action Though he has more Power than any Subject yet Subjects may be and are more able to do Mischief And for a full Proof what Confidence the Law has always had in the King 's doing nothing in his own Person but what is highly fitting though an effect should follow upon a rigorous Action of his as if he should kill an innocent man with his own hand there never was any Remedy And this was taken for Law as long since as the Confessor's time Nor is it to be imagined that William the First and his Successors reâ—eded from this Power how little soever â—hey exerted it In that famous Case where the Confessor Tit. of Honour fo 525. impeach'd Earl Godwin of Treason 't is urged by the great men of Godwin's Party that he could not be a Traitor to the King because he was never â—ied to him by Homage Service or Fealty 'T is answered and not replyed â—o on the other side That no Subject ought Bellum contra Regem in appellatione â—uâ de lege vadiare could not lawfully demand the Battail against the King Appellant Sed in toto se ponere in â—isericordia Regis but must wholly yield himself to the King's Mercy In this Case though the Party might prove himself against a Subject to be innocent yet there was no way of Tryal against the King the Appeal being the only Tryalâ— and that required Battail but a maâ— ought rather to lose his Life than strikâ— his King to whom he owes his Protection and Defence from Rapine as the King iâ— the great Executer and Preserver of thâ— Laws Though this Case is of the King 's appealing yet if a Subject should presume tâ— be Appellant against his King for thâ— Death of his nigh Relation the Reason holds and surely 't would be very absurd for an Indictment to be brought in the King's Name who has Jus gladii against himself others could not executâ— the Judgment upon him and I take it no man can be compelled by Law to bâ— felo de se. But what need have I to say any thing on a Subject which every man is bound bâ— his Allegiance not to controvert I shall only observe That the Disputâ— between us can be no more than whâ—â— Right one Subject or body of Subjects has to impose upon another Whether 〈◊〉 â—o the Kings of England have always had a Council in matters of Legislature we have no Difference the only Question is who were of the Council but if as 't is argued on the other side Tenants in Capite were the only Council and if I prove that the House of Lords succeeded to the whole Power of such Tenants and these can have no more than they had he that makes the Tenants the only Council for the Legislature takes away the King 's Negative Voice for that the Lords have in that Jurisdiction which they enjoy upon that old Right of the Tenants in Chief and no King pretends to the Trouble of having a Negative in matters of ordinary Judicature But besides this which I have answered there is a Charge of being an Enemy to the Government by Law establish'd in the Church for which we must consider that the Government in this Respect is made up of the Laws and the Officers in it For the Laws I dispute none of them because I acknowledge the Authority which made them and whether 't is advisable that any of them be altered I leave to the Supream Wisdom of the Nation For the Officers I quarrel not at the Chief the Order of Bishops nor yet at the Ecclesiastical Jurisdiction upon the Reason already given and my Proof that they have this by Law perhaps is Particular truly I conceive it to be a great Mistake that the Statute which took away the High Commission Court took away all Ecclesiastical Jurisdiction for only the part relating to that Court is repealed and then the first of Elizabeth having revived the 28th of Hen. 8. the former Power called Ordinary Power is left entire being provided for by the Statute of H. 8. Which amongst other things Enacts That every Arch-bishop and Bishop of this Realm 28 H. 8. â— 16. and of other the King's Dominions may minister use and exercise all and every thing and things pertaining to the Office or Order of an Arch-bishop and Bishop with all Tokens Insigns and Ceremonies thereunto lawfully belonging It may be said That still I say nothing of the Divine Right of Church Officers and Power but that I may step as far as can reasonably be expected from a Lay-man I acknowledge that there is a Divine Right for Church-Officers and Spiritual Power distinct â—â—om the Civil I cannot now but hope that I have said â—nough to render me fit to be heard upon â—y first Subject in which I have followâ—d the Authority of the great Fortescue â—ho taught the World long since nor is â—his man of Letters too good to learn of â—im that in all the times of these seveâ—al Nations and of their Kings Fortescue p. 38. 6. As translated already this Realm was still ruled with the self-â—ame Customs that it is now govern'd with all Which if Mr. Selden had taken in â—he Genuine Sense as meant of the Government or Constitution which is the Foundation of all particular Laws he â—eed not have been at so much Pains in his Comment hereon If I find any thing more expected from me either in Vindication of my self or â—n more fully drawing my Adversary in â—is proper Colours and admirable Features the first I shall do for the sake of Truth and if I can get as much vacant time from my Studies and Practice in my Profession His Letter to the Earl of Shaftsbury as it seems he has had from â—is I may do the other if it be only for Diversion I am sensible that want of time or of Health to give the finishing Strokes to this rude Draught are of themselves but poor Excuses to a Reader who would doubtless be content to stay till he could see some thing more correct but when my delay would give time for so much growing Mischief as has been sent abroad to spread it self even such an Antidote as I now offer may be accepted till Mr. Petyt has fully prepar'd his Catholicon which will persuade them who have been imposed upon with Noise and Nonsense to
of Summons and deny their Rights in legal Practice tho a Parliament was to be held In fine the Kings of England de facto used to suffer Tenants in Capite to come to their great Councils but the Right is deny'd even them who only had that Permission But Against Jan. c. p. 66. and 67. does he not own the Fact with us expressly in the 48. of H. 3. and yet goeth to set aside the Right by giving an Account of the History and Occasion of it Our Champion not only denies that the Commons had any Share or Votes c. in making of Laws for the Government of the Kingdom c. unless they were represented by the Tenants in Capite but vouches the name of Sir Henry Spelman to prove that 't is of Right Ex ipso jure â—eodali that the Tenants in Capite should represent the rest In this Case â—e may admit us all the Fact of coming to the great Councils and yet the Right would have been against us as long as the Feud remained that is till the twelfth year of his present Majesty when the Feudal-Right as set forth by our Opponent ceast So that not only the Fact within the Compass of our dispute would have been insignificant but no Fact since to this very day could prove any Right the Right of sitting in Parliament having been according to him wholly Feudal if any no Statute giving a new Right to any 〈◊〉 elect as I shall shew since the time when he places in the King's Tenants in Chief by Knights Service all that Right of Elections which was suffered between Subject and Subject Where then is the Right at this day Vid. Pref. in any Commoners to come to Parliament Nay in any Lords upon the Grounds which I have already expos'd But what if in our Dispute about ancient Testimonies we have granted us those very words which we contend for Against Mr. Petyt The Commons c. were not introduced c. before â—â— H. 3. That is not once if the Question be only of Fast. as Evidences oâ— the Fact nay and our own Sense too to be on Record admitting that Right may arise from one Fact well proâ—ed what Question then remains Why then 't is purely of Right Vid. infra fideles and that â—s whether our Delian Apollo has not Right in his floating Island to set up Matthew Paris above Record if it were only for this Reason that he speaks â—ore oracularly and doubtfully than the Records Is it not granted that the Fact is on our side by such Authority as he would advance above Records and that in reâ—ation to his belaboured Conquest when â—e says that the mistaken Notions that â—s those which are contrary to his of the Conqueror's Title Laws and Government Against Mr. Petyt p. 43. were devised by the Monks and Clergy-men-Lawyers Nay is not the Right of Conquest it self as merely such made a Question by himself For he asks whether any man can forfeit that is justly loose his Lands to a Stranger a Conqueror that could not pretend Title but by Violence and Conquest Justly to loose and to forfeit must here be reciprocal to vest a Right in a Conqueror for if the Vanquish'd loose not their Right of Reprisal when 't is in their Power 't is not forfeited and if 't is not forfeited forisfacta made anâ— ther 's by Right 't is not justly lost nay 't is not lost at all only forcibly with held Is it not in effect yielded us that the Commons have ever of Right been Aâ—senters as well as Petitioners and thaâ— from before the 49. of H. 3. For hâ— yields the Word Ever to be in the Parliament Roll nor does he tax the Cleâ—â— with any designing Addition to the Record but which serves not his Turâ— he says Against Mr. Petyt p. 134. 't was ever since they were a third Estate or a Member of Parliament A goodly Discovery that they werâ— a Member ever since they were a Member but do they not plead that they were ever a Member that is immemorially If they had prescribed to this ever since the 49. of H. 3. he might have triumph'd but even in his Sense neither Fact nor Right is controverted because for ought he says here they might ever have been a third Estate And if Burgesses whom though Tenants in Capite I shall take for Commons which to be sure with him had as great if not greater Right than any not so holding could not make that Claim matter of Right in the 8. of E. 2. but at at least it might be overthrown for â—eason of State how came it to pass â—â—at the whole Body of Commons did it â—â—en without Check from the King or â—â—s Council whom he makes very ignoâ—â—nt of the Prerogative or so fearful of â—â—eming to assert it that they durst not â—â—me it though perhaps the Lords â—ere all likely then to have joyned in â—â—e throwing them out and this at a â—â—me when we are told the Commons â—ere little inconsiderable Fellows and â—ore the Lords Livery Coats That more than Tenants in Capite â—ere present at the great Council when King John's Charter was made I do not â—â—nd that he controverts and indeed â—ow can he There having been that â—rmy which was too powerful for their â—nhappy King and the Londoners in great Numbers who I take it used â—o come more contracted but he denies that more than Tenants in Capite were Parties to the Laws whether they were de facto is to be proved by Reason And he urgeth that the Laws were made only to Tenants in chief which indeed would be a Demonstration that none but they were Parties but that moâ—â— were I shall prove under a distinct heâ— of his Contradictions SECT 2. His Contradictions 2. MR. Petyt whom I cannot bâ— call judicious notwithstanâ—ing the Interdict had asserted that tâ—â— Commons such as are now representâ— by Knights Citizens and Burgesseâ— were always of Right an essential paâ—â— of the great Council I joyn my Suffragâ— and for Proof alledge that King John Charter does not constitute the Tenanâ— in Capite the only Members but leavinâ— to all the Villae their Liberties and frâ—â—â— Customs If the Inhabitants even Parishes came to the great Councilâ— without Consideration of this Tenuâ— in Capite their Right was sufficiently secured under the word Villae Now what if all this is oppos'd onlâ— out of a Spirit of Contradiction and ouâ— of the same Spirit he contradicts himself and answers the Character which the inimitable Cowley gave of Envy which begun Davidâ—â— â—nvy at the Praise her self had won â—he Villae I say signifies Towns and â—â—shes too as distinct from the Burâ—â—s to be sure not the Habitations â—â—nants in Chief only whom our Opâ—â—nt argues to have been the only â—â—sentatives of the Commons if they â—any till the 49 of H. 3. But to deâ—â— my Notion of the Villae he cites
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
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
Rich. 2. tells us out of Sprot and others though some would have us think that he took it only out of Sprot He himself tells us that even where he follows Sprot Quaedam superflua à compilatione dicti Thomae resecans quaedam notabilia suis in locis eidem addens ib. he not only cut off many things but added many remarkable Passages Thorne gives us a particular Account of Stigand's raising the men of Kent to â—ight for their old Laws and Liberties Thorne fol. 1786. which many others not being Kentish â—en would not mention lest their Magnanimity should upbraid the sudâ—en yielding of the rest This I take to have been between October and Christmas when he was â—rowned and that having entred into Treaty and concluded on Terms at London which however they tell us that â—e broke he went towards Dover Vt â—llam cum caeteris partibus comitatûs suae â—ubjiceret potestati It seems Dover was then the Strength of Kent and he thought by the getâ—ing of that he should be able to keep all that Country under Upon this Arch-bishop Stigand and Abbot Egelsine and all the great men of Kent perceiving that an ill Fate lay upon the whole Kingdom and that whereas before none of the English were Servants now Nobles as well as Plebeians were brought under the Yoke of Slavery represented to the People assembled together the misery of their Neighbours the Insolence of the Normans and the hardship of a servile Condition and animated them all as one man to a resolution of dying or maintaining their Liberties I know many learned men look upon this part as suspicious taking the Sense to be that there were no Villains in England Sylas Taylor of Gavel p. 167. in Kent especially before that time which they are at pains to shew that there were But I conceive the meaning of the words is no more than that there had ever been in England a Distinction between Free-men and Slaves and therefore that none of the English that is the People of the Land which the Law has ever confin'd to Free-holders they that depend upon the Will of others Villains or Servants being no Cives any part of the Nation in that sense ought to bear that Slavery which the Violence of the Normans threatned to all in common Nor wants there Authority for the Freedom of all the Kentish-men in the largest Extent for in an ancient Roll of the Customs of Kent Lambert's Perambulation of Kent 21 Ed. 1. 't is said to have been allowed in Eire before John of Berwick and his Companions the Justices in Eire in Kent the 21 of King Edward the Son of Henry that is to say that all the Bodies of Kentish men be free as well as the other free-bodies of England Lambert's Perambulation p. 632. And this confess'd to be true 30. Ed. 1. in the Title of Villenage 46 in Fitzherbert where it is holden sufficient for a man to avoid the Subjection of Bondage to say that his Father was born in the Shire of Kent The just value of this Freedom Thorne made all the Free-holders of Kent with all that depended upon them resolve to put a stop to William's Depredations At Swanscomb was their general Randezvouz and their numbers were so great that as the Norman Prince advanc'd he found himself hem'd in with an armed Wood for that they might secure themselves of his making no Escape so confident were they of Victory or forcing their own Terms every man by Agreement took a Bough in his hand to block up the way The Arch-bishop and the Abbot in the name of the rest told him that the whole People of Kent were come out to meet him and to acknowledge him their Leige Lord if they might enjoy their Liberties and Laws otherwise they denounc'd War and bid him Defiance Upon this William calls a Council of War and he finds it expedient to give them their Terms they knowing how he had used those who trusted to his Generosity or Justice took Hostages as well as gave and then in full Assurance of his Performance yielded him their County or the Government of it not all the Land and Property there and as what would secure the Government there to him resigned up the Castle of Dover To this Relation Perambulation of Kent p. 25. the great and faithful Antiquary Mr. Lambart gives sufficient Reputation Mr. Camden says Camden ' s Brit. Ut verè quamvis minùs purè in antiquo libro sit scriptum that no man before Sprot has told these Circumstances but he cites an ancient Authority which was a Plea not oppos'd and which could not be taken from Sprot in which he confesses the Substance of this to be contained and though not elegantly writ yet with Truth So that Mr. Camden is on our side being convinc'd by the truth of his own quotation Dicit Cantii Comitatus quod in Comitatu ipso de jure debet de ejusmodi gravamine esse liber quia dicit quod Comitatus iste ut residuum Angliae nunquam fuit conquestus sed pace facta se reddidit Conquestoris dominatui salvis sibi omnibus libertatibus liberis consuetudinibus primò habitis usitatis The County of Kent says that in that County of right it ought to be free from such a Grievance because it sayes that that County was never conquered like the rest of England But having made a Peace yielded its self to the Conquerour's Dominion saving to themselves all their Liberties and free Customes at first had and from that time us'd It seems in standing up for their own Rights they reflected upon the rest as an humble conquer'd People And indeed whereas it has past into a Maxim Nemo miser nisi comparatus No man's condition is unhappy thought But when into the Scales with happier men he 's brought On the other side men are apt to think their Happiness incompleat without comparing themselves with those whom they look upon as deprived of the Advantages which they enjoy Thus our late Author enhances the value he puts upon himself by the Contempt which he thinks his Adversaries deserve though in truth how low soever they lye he rises no higher but it may be disgraces his Mastership by the comparison But to return to the Men of Kent the generality of which how free soever they were Against Mr. Petyt p. 39. were by his Rule no Freemen of the Kingdom for all the Freemen of the Kingdom were Tenants in Military Service Feudalibus Legibus non 〈…〉 Spel. Glos. tit Gavel kind Which was of the Feudal Law whereas their Gavel-kind was exempt from it I can imagine no other Reason why they above others constantly maintained their old Laws and Customes than that they were a sturdy People more than ordinary tenacious of their Rights and sensible of the least Violation And possibly for a long time they retained the Power of taking Satisfaction upon
some of his Favourites who were Pledges for William's Performances Sure I am as far as my Authors can assure me after this Classick Writer has blasted their Credit I will not say with a contagious Breath he promis'd as largely to the rest of the Nation as he did to the People of Kent If the men of Kent had their Representatives at least at the Electing him to Rule over them and were not subjected to him as a Conquerour nor were their Lands parcell'd out by him though we are taught è Cathedra that he took away from the English their Estates and gave them to his Normans So that according to his Reasoning the Flemmings Against Mr. Petyt p. 35. Anjovins Brittains Poictorins and People of other Nations who made up a great part of his Army and came with him under considerable men their Leaders came out of stark love and kindness They though Adventurers with him being content he should gratifie onely his Normans Nay he divided all the Lands of the Kingdom amongst his great Followers even the Lands of those Normans who had Estates here before But if I say the men of Kent enjoyed their Right as abovesaid what Reason beyond what I have assign'd is there to think that it was otherwise with the rest in general some of which were Adventurers with him but all equally sharers in the extent of his Promise to maintain rectam legem Though he and some of his Successors chose Succession as the most honourable Title yet that he had none but Election is evident in that he was not Heir to the Confessor Domesday in Surry Acstede Goda mater Heraldi tenuit IRE In another place there called Soror Regis Edwardi but rather Harold was who was Son to Goda that King's Sister Nor could the Confessor and Harold lawfully set the Crown upon his Head without the Consent of the Kingdom Nor yet could he gain a Title by Conquest over those who vielded upon the Terms of enjoying their Laws and Liberties and who unless those Terms had been granted had both Right and Spirit too to have kept him from Reigning over them Abating the factious conspiring to set him up against Edgar Etheling who though he was not as now the Law is actual King before Coronation yet ought to have been crowned the People had sufficient inducement to chuse William 1. Because he was a Prince of a less Potent Nation and therefore would make an Accession to England and give them footing upon the Continent from whence they might spread the glory of those Arms which were reproach'd with that necessity of Self-defence which makes even Cowards Valiant 2. He was a Prince who had governed his own Country with great Prudence and Moderation Brevis Relatio Willielmi ad finem Syl. Taylor p. 188. nor would attempt upon that acquisition to which many Circumstances invited him without the Consent of his Senate there 3. Harold being dead they knew not any man so likely to defend them from those Enemies which threatned and molested them from abroad or that could better secure them from the Tyranny of many Masters at home and the Distractions which in all probability would arise from their Feuds and Competitions for the Crown which every one that could draw the Mobile 〈◊〉 him would be catching at till it was plac'd and setled Thus I think 't is made evident that William the first his Title was by Election and that the Election according to the infallible Rule was factious since how unanimous soever they might be at the crowning him Feuds and Factions wearied them into the Agreement more than the Force of his Arms but I shall not give him this Author 's obliging Epithetes 'T will be said perhaps if the Election be void then he is let into a Title by Conquest yet how can that be when the very Conquest or rather Acquisition whatever it were was by this means he being received upon Terms Foedus pepigit Besides if there were no Election then the People never yielded were never conquered And there was no more a Conquest of the whole Nation than an Election by the whole The actual yielding of some and tacit Concurrence of others made his Title SECT 3. That he makes a Title to the French King from the Acquisition of his Feudal Tenant the Norman Duke upon his Notion of the Feudal Law BY the Law of Feuds as he receives the Supposititious Sir Henry Spelman for so out of Reverence to his Memory I take leave to call the Second Part of the Glossary till 't is reconcil'd to Truth or till our Author who goes upon the same grounds makes them good Superior quisque Dominus Regulus agit in suos subditos Against Mr. Petyt p. 104. in rebus ad feodum suum pertinentibus ex ipso jure feodali jus dicit Every Superiour Lord Acts like a little King over those that are under him Little it seems for the number of his Subjects not the extent of his Power over them and in things belonging to the Feud gives Law even by the very Feudal Right that is to say is absolute In another place Consentire quisque videtur in personâ Domini sui Capitalis prout bodie per Procuratores Comitatûs vel Burgi 2 Glos. tit part quos in Parliamentis Knights and Burgesses appellamus Every Inferiour seems to consent in the person of his Lord as at this day we do by the Representatives of the County or Burrough which we in our Parliaments call Knights and Burgesses What no Citizens amongst them Truly I should think by the Comparison that a Legislative Power was delegated to the Lords of the Feud as there is it seems to the Representatatives of only the Counties and Burroughs but that it is Ex ipso jure feodali Further our State-Quack has it Glos. p. 7. As all their Estates arose from his Beneficence What if some purchas'd theirs So they depended on his Will Originally That is the Feudal Tenants ib. p. 4. all Vassals held their Lands at the Will of the Lord and whether they were Delinquents or not he might at his Pleasure take them from him When this rigid Law expir'd he does not vouchsafe to inform us however he yields the Substance of all in acknowledging that the superiour Lords gave Law or were absolute and represented or govern'd the Tenants in the Legislature till the 49. H. 3. To assume William was Feudal Tenant to the King of France and according to the Feudal Law long after his time King John was summoned to the French Court to answer for the Death of Arthur of Britain who was another Feudatory to the French King William himself was not only subject to the Feudal Law but thereby was as much under his Superiour Lords despotick Power in relation to what he got as the most inferiour Tenant William depended upon that King's Will his Dominion was forfeitable without any default
he was Leige-man to and received Laws from the French Monarch Though the Crown of England has always been imperial subject to none upon Earth yet he that wore it unless he were so free that he could go with his Land Potuit ire cum terrâ quo voluit whither he would which to be sure is inconsistent with this Feudal Law he could not quit his Dependance SECT 4. The Notion of the Feudal Right considered and the Right of Tenants in free and common Socage to come in theâ—â— own Persons to the great Councils shewn from thence BUT since the mention of Jus feodale as advanc'd in the second part of the Glos. ascribed to Sir H. Spelman occasions a little Consideration of the Feudal Law I out of a Zeal to clear his Reputation from the Charge of things false or frivolous and having at present no other Authority for his being the Author of it than ones who has an excellent Faculty of Storying except against what is there said to be ex ipso jure feodali as none of his 'T is there taken for granted to be the very Right of Feuds deriv'd from the Feudal Law that the Superiour Lord of the Feud should give Law jus dicere to them that are under him and 't is evident this is not meant of an ordinary Jurisdiction because by virtue of this 't is fancy'd that the Lords represented their Tenants in the Extraordinary at the great Councils and by the same reason the Assertion of a Judge censur'd in Parliament is justifiable viz. That the King is the only Representative But I must observe that this must be from Either 1. The general Law which guides the Feuds in all places where Feudal Law is received Or 2. The particular Feudal Law of England 1. Our Author evidently takes this in the first Sense being to prove what was the Feudal Law here New Glos p. 4. he cites the foreign Feudists who acquaint us with the Law of Feuds amongst them but this first Sense is not supposable in that this Law upon that account would be as much the Law of Nations as the Law for the Advantage of Embassadors wherever they come And this could not generally prevail but from the Authority of Catholick Reason that should require it but that I do not find since the Lord may have the Vtile Dominium which the Feudists speak of as incident to Feuds without the despotick Power and the end or nature of them being answer'd from whence will the Argument be brought that it ought to be so I will grant that it is not a Feud unless there be Utile Dominium for that distinguishes it from an Alodium which sometimes may yield no profit to any Superiour But those who well knew the Nature of Feuds teach us that 't was the Infancy of Feuds when they wholly depended on the Lord and could not stand without being supported by his pleasure then indeed which was before Feuds were spread into many Nations cragius de Feudis fol. 20. Nec servientibus aliud jus erat in his proediis quam precarium quod qui habet non tam diu quam ipse vult sed quamdiu is qui concedit patitur eo frui This indeed agrees with that Law which is supposed to have obtained even till the 49 H. 3. Whereas from hence Feudal Tenure advanc'd to an Estate for Life Solet usus fructus constitui in personam tantum Cujacius de feudis Tom. 4. fo 464. and all this before the year 650 from which time to Charles the Great who began to reign in the Year 800 unless one were particularly assigned by the Gift the Lands descended Craglus fol. 21. by right of Inheritance to all the Sons It s state of Maturity was when it descended to one but still there was an Inheritance by the Law of Feuds before the time of William the First and above 450 years before the 49th of H. 3. And I would rather believe Cujacius for the Jus Feodale or the Nature of it than what we find under the Title Parliament in the Glossary Cujacius defines a Feud Cujacius de feudis fo 464. Tom. 4. Jus praedio alieno in perpetuum utendi fruendi quod pro beneficio Dominus dat eâ lege ut qui accipit sibi fidem militiae munus aliudve servitium exhibeat An Usufructuary Right in another's Land which the Lord gives for a Benefice upon condition that the Grantee should be faithful and true to him and perform Military or other Service This is a perpetual Right therefore not to be disposed of by the Lord's Will or the Law which he should give 'T is indeed Vsufructuary because the Lord has the Forfeiture and Escheat according to the Laws setled in any particular place For I take it that in one place they differ'd from another And in Confutation of this Conjecture that ex ipso jure Feodali the Lord jus dicit take this as the general Law of Feuds 't is enough that in any place where the Feudal Law was received 't was otherwise Choppinus de Juridic Andeg Choppinus sayes that amongst the French a Feud implies not juridica potestas nil commune cum juridica potestate Which if as Jurisdiction is often used to signifie a Power inferious to Jus dicere it is but a Judicial Power it follows that the Lord could not have the greater where he had not so much as the less And farther Feuds have in all Countries been guided by the Law of Property their Common Law Thus sayes Cujacius Nos quoque jus feudorum quo Italia utitur sequimur non inviti nisi siqua in re pugnet cum legibus aut moribus nostris We also willingly follow the Law of Feuds which Italy uses unless in any thing it fights with our Laws or Customes And this is to be observed that the end of raising Feuds has often prevailed to introduce a Custome without any express Law and beyond the Foreign Law of Feuds 1. Without express Law and thus to preserve the Head of a Barony that was never to be divided whereas any other part was often so in which the Common Law prevail'd from the end of raising the Feud which requir'd the Preservation of that entire though the other part of the Barony might be divided Bracton and Fleta suppose the Barony to descend to several as well Males as Females Bracton lib. 2. fo 76. Primogenitus vel primogenita habeat electionem propter suam Eisneciam says Bracton Fleta lib. 5. fo 313. whose words only I repeat Let the first born Male or Female have Election by reason of the elder Share And with this agrees a Record in King John's Reign Thomas de Scoteney petit versus Willielm Scoteney Capitale Mesuag quod habere debet in Steinton cum pertinentiis sicut illud quod pertinet ad Eisneciam suam de Baronia quae fuit Lamberti Scoteny Thomas de Scoteny
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
and gives a Cell Lands and Tenements for a Prior and five Monks in Spalding Wulketul Abbot of Croyland Indulphi Hist. fo 902. commences his Suit for this in Curia Regis all the Normans being confederate together justifie and approve of the Depredations Oppressions Slaughters and all other Injuries committed by Yvo Talbois against the Croylanders and as in the body of Behemoth one Feen is joyned to another they refute the Truth And that which added to the Heap of the Calamity of Croyland was the cruel beheading of Erle Walden of Croyland who was very kind to all the Religions and was chiefly the best and most worthy Friend to the Monastery of Croyland and although Arch-bishop Lanfranc his Confessor asserted that he was free from all Faction and Conspiracy and if he died in the Cause that he would be a Martyr yet his most impious Wife thirsting after another Marriage and therefore most wickedly hastening the Death of her Husband Also some Normans gaping after his Counties of Northampton and Huntington According to our Author he had all the Lands of these Counties whereas the King had some especially the Anjovin Erl Yvo Talbois thirsting for his Blood being most greedy for his Lands and Tenements which were very many in all the Counties of England the innocent and harmless man is martyr'd at Winchester the day before the Kalendâ— Here we see they were forc'd to accuse him of Faction and Conspiracy or Rebellion that the Lands might be forfeited to the Crown and they might get them for their good Service Our man of mighty Vndertakings thinks to set aside Edwin of Sharburn's Evidences and exposes the Credulity of his Friend Sir William Dugdale whose Obligation for leading him the way in his Origines Juridiciales he has returned to the purpose because he tells us Sharnburn's name is not to be found in Domesday book or the Conquerour's Survey and the Owners of Sharburn which are there only to be found are William de Warennâ Odo Bishop of Bajeux Bernerius Arbalistarius and William de Pertenac 'T is not material that they are reputed Owners since Sharborn had the King's Mandat p. 25. and possibly might not have the Possession restored till after this Survey 2. Often only the chief Lords of the Fee are named though not all the Proprietors under them 3. Though we find not Edwin of Sharburn we find in the same County Edwin a Proprietor and Lord of a Mannor with a mesne Lord under his Bailiwick and Care though not holding of him Sislanda tenuit Ketel liber homo Edvini commendatus tantum pro Manerio duo Car. Ketel Edwins Free-man held Sisland within his Bailiwick only for a Mannor and two Carvs of Land Now 't is very obvious that there were great Proprietors whose Christian Names only were mentioned in Domesday book They are frequently named without their Additions to be sure not all the Addition by which they were known to instance in Edric cognomento Sylvaticus this Sirname of his is not to be found there as I take it and yet he kept great Possessions which he had of a Title prior to William's Eo tempore Florentius wigorniensis extitit quidam praepotens Minister Edricus cognomento Sylvaticus cujus terram quia se dedere regi dedignabatur Herefordenses Castellani Ricardus Scrob frequenter vastaverunt sed quotiescumque super eum irruerant multos è suis militibus Scutariis perdiderunt At that time there was a certain powerful Officer Edric whose 〈◊〉 was Silvaticus whose Land because he scorn'd to yield to the Conquerour the Castellans of Hereford and Richard Scrob often wasted but as often as they fâ—ll upon him they lost many of their Souldiers and Tenants by Knights Service Hitherto he had kept his Lands and a little after we find the King and him reconciled 〈…〉 Vir strenuissimus Edricus cognomento Silvaticus cujus supra meminimus cum Rege Gulielmo pacificatur And soon after this he accompanies the King to Scotland but if the Dr. finds him by this Addition in Domesday book I will allow him to be a man of a very sagacious Invention p. 26. 4. We find whole Counties left out of Domesday book and therefore admit Edwin were not there 't is not strange that he though a Proprietor should be omitted if it were only through the Influence of Erl Warenn Notwithstanding the Exceptions taken to what he calls the famous Legend and trite Fable of Edwin of Sharnborn he himself confesses that he had the King's Mandat and so this Plea was allowed in the very Instance which he thinks to be on his Side How idle is his note on the Margin of p. 24. against Mr. Petyt Against Mr. Petyt c. p. 19. Can any man forfeit his Lands to a Stranger a Conquerour that could not pretend Title but by Violence and Conquest As if a Conquerour could not make what he pleas'd a Forfeiture and were not the more likely to use Rigor for being a Stranger having no Tyes of Familiarity or Blood besides will not a Conquerour pretending an Hereditary Right make them who oppos'd it forfeit And it shall be taken for just too by them who acknowledge his Title Noâ— is there more to favour his Fancy that King William by giving away the Lands of Great men nay whole Counties or the Government of them thereby defeated the Inheritance or lesser Rights of those who held under them As if for the purpose the King should grant away the Estate of the Lord Stafford which if any were left in him after any Settlement was really forfeited thereby all that had Leases under him or any other Interest were wholly divested which were to make the Attaindure to reach farther than the Blood SECT 6. BUT because our Author is a very sagacious Person for Informations sake I am bold to ask him some Questions occasioned by Domesday-book In Andover Hundred Sorry Rex tenet in dominico Cladford de feudo Rogeri Comitis If this had been the King 's own Feud 't would have been Rex habet de feudo â—uo as we find Robert de Statford had thirteen houses De honore Comitum de feudo suo Wherefore Quere whether all the Lands of the Kingdom were held mediately or immediately of the Crown What thinks he of Est de regno Angliae â—on subjacet alicui Hundredo neque est in consuetudine ullâ So in Surrey Non adâ—acet alicui Manerio or as elsewhere Fuit posita extra Manerium or such an one is commendatus homo to another Glos. tit commendare who if we believe Sir Henry Spelman â—wore no Fealty and held not by any kind of Tenure What of Nunquam geldavit or geldum dedit nec hidata fuit or distributa per Hidas What of potuit ire cum terrâ quo voluit â—otuit se vertere ad alium Dominum Which I should think argued Freedom from the Feudal Law
who have not read this Charter from falling upon this easie way of answering the Doctor 's whole Book and therefore they castrate the Charter and leave out all the provision for the Liberties and free Customs of the several integral parts of the Kingdom as if their imaginary General Council had swallowed up the Liberties and Freedoms of all them who held not of the King Nota A Tenure in Capite is when the Land is not holden of the King as of any Honor Castle or Mannor c. But of the King as of the Crown as of his Crown or in Chief and this some would rather have effected than that the Commons of England should be thought to have had any Right affirm'd by so ancient a Law Spelman's 2 part of the Glossary Tit. Parliamentum and that this was apprehended when the marvellous Discoveries worthy to be inquired into under Title Parliament Bless'd the World may well be gather'd from the printing only as much of that part of the Charter which is now in Debate If but one had an hand in it as in the Publisher's own Judgment he thought would fit his Purpose concealing the rest In that Glossary there is no more than this Spelm. Gloss. Col. 452. Nullum Scutagium vel Auxilium ponam in regno nostro nisi per Commune Concilium Regni nostri 1. Nisi ad corpus nostrum redimendum 2. Ad primogenitum filium nostrum Militem faciendum 3. ad primogenitam filiam nostram semel maritandam ad hoc non fiat nisi rationabile auxilium Nota the Omission here Et ad habendum Commune Consilium Regni de auxiliis assidendis aliter quam in tribus Casibus praedictis et de Scutagiis assidendis summoneri faciemus Archiepiscopos Abbates Comites Majores Barones sigillatim per literas nostras praeterea faciemus summoneri in generali per Vicecomites Ballivos nostros omnes alios qui in Capite tenent de nobis ad certum diem sâ—ilicet ad terminum quadraginta dierum ad minus ad certum locum in omnibus literis submonitionis illius causam summonitionis illius exponemus Et sic factâ summonitione negotium procedat ad diem assignatum secundum Concilium eorum qui praesentes fuerint quamvis non omnes summoniti venerint By the partial citation of this shred or end of the Charter 't is a clear case that Et ad habendum Commune Concilium Regni is there in express words appropriated to Tenants in Capite whatever may have been reserv'd to others in the general provision for all their Liberties and free Customes and the Publisher hath so dexterously and effectually patched the Fragments together that the Reader must be forced according to those curious Appearances to assent to the Publisher and Doctor 's fallacious Assertions that none but the Tenants in Capite made the Commune Concilium Regni the City of London and all other Cities Burroughs Ports and Towns or Parishes whose Rights are there reserved being clearly left out in the Glossary whereas 't will be very difficult to one that reads the whole together not to think that admitting ad habendum Commune Consilium Regni be there appropriated to the Kings Tenants in Chief yet the Aid and Escuage they are impower'd to assess must be such as concern'd them onely A reservation for the Liberties and free Customs of all the parts of the Kingdom following immediately upon mention of the Common Council of the Kingdom which undoubtedly had of Right and Custom a larger Power than barely the granting of Taxes But if Et ad habendum Commune Concilium Regni de auxiliis assidendis aliter quam in tribus casibus praedictis ought to be joyn'd to the Liberties and free Customs of the whole Nation reserved by King John's Charter then that darling Notion of a Parliament of the King's Tenants only no more to be prov'd than that we had Parliaments of Women as well as others falls to the ground Vid. Jan. p. 239. And by the Dr's good favour there was no need of proving that amongst the other Customs of the Cities Burroughs Against Jan. p. 4. c. this of enjoying a Right of being of or constituting the Common Council of the Kingdom was one of them any otherwise than from the express words of the Charter nor could I justly be blam'd for not going first to prove that such were Members before my saying that if they were so before and at the making of the Charter their Right is preserv'd to them by it and is confirm'd by the Charter of H. 3. c. 9. Since in all mens Logick but the Dr's the Argument is to be laid down before it can be made good and the thing to be prov'd here is but the minor of a Syllogism Which Argument being founded upon Fact which the Dr. would have to be the onely Controversie between us p. 1. I may wave for a while and yet there 's no doubt but I prove a Right if I shew that amongst other Liberties and free Customs all parts of the Kingdom here enumerated were by the Words of King John's Charter to enjoy a Right ad habendum Commune Concilium Regni The Dr. agrees So Matth. Paris Against Jan. c. p. 62. that King John's Charter and that which H. 3. granted in the 9th of his Reign were alike in all things Wherefore if I can shew the likeness I hope 't will qualifie and abate our Author 's great Wrath for my proving from thence a provision for a more General Council than one made up of Tenants onely For p. 63. being like 't is not necessary that the Words should be the very same but the Sense and if we are sure by Record that we have the right words we are certain if Records may explain Matthew Paris that the likeness he meant consisted in the Sense Since therefore in the Great Charter granted 9 H. 3. as I find also one in Secundo there is in a Chapter intire by it self The hand-writing of E MS. peues Dom. Petyt as the Lord Cook cites it Scutagium de caetero capiatur sicut capi consuevit tempore H. avi nostri and no other provision is in any part of the Charter made for the Great Council of the Nation than what is contain'd under the Liberties and free Customs of every particular Place and yet this wholly agrees with and expresses the Sense of King John's Et de Scutagiis assidendis must be disjoyned from ad habendum Commune Concilium Regni aliter quam in tribus casibus praedictis And if so then the Tenants in Capite who are under that Division have no express provision there made for their Summons to the Great Council of the Nation but are with others left for that to the antient Law as it was in the time of H. 2. whose Laws both Charters that were in
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
Statute of the Great men The Law made à Rege ib. p. 11. Baronibus Populo had the like Legislators and I do affirm Against Mr. Petyt p. 13. that the word Populus is not to be found in any of these Thus I have wonderfully discovered the unsoundness of Mr. Petit's Assertions ib. p. 2. though it will be objected I have jumpt over several Arguments and they material ones concerning Great Councils before the Conquest Upon which it follows that if the Populus were admitted after it must be by the bounty of the Conquerour who might at pleasure revoke his Concessions For the Story of Edwin of Sharnborn b. p. 24. supposed to have enjoyed his Lands by a Prior Title 't is a famous Legend and trite Fable though he had the King's mandat for Recovering his Estate Sir Edward Coke ib. p. 30. who to avoid the evidence that our English Laws were the Norman Laws Against Jan◠c. p. 89. said The Laws of England are Leges non scriptae said it precatiously without any Foundation or Authority Besides 't was ridiculous as if they were known by Revelation divinely cast into the hearts of men Though some may impertinently ask me Whether there were not Laws before Writing and that without Revelation or divinely casting into the hearts of men But that Against Mr. Petyt p. 167. if affirmed is a palpable and gross Error What though that Clergy-man-Lawyer Bracton agree with Coke yet he spoke out of Ignorance or Design when he said Absurdum non erit leges Anglicanas licet non scriptas leges appellare Bracton l. 1. fol. 1. William the Conquerour brought in a New Law Against Mr. Petyt p. 29. and imposed it upon the People The greatest part of the Antient Law as it was brought hither by the Normans was exacted and observed by ib. p. 43. and upon only the Normans For the English they had no Property or Rights left And so were all Outlaws This Domesday-Book in every County shews though 't is said several English-men are there mentioned holding by Titles not derived from the Conquerour p. 176. And for a farther proof of this King William ' s Law to all the Freemen of the whole Kingdom was made only to Tenants in Military Service ib. p. 39. which were French p. 35. Flemings Anjovins Britains Poictovins and People of other Nations When this King in the 4th of his Reign summon'd Anglos Nobiles Sapientes suâ lege eruditos to give an account of their Laws 't was a Sham Summons for no English were Nobles nay none were so much as Free-men but the Foreigners amongst whom William divided the Kingdom and therefore Strangers that had their Estates came in their steads and gave an Account upon Oath of the Laws before their own time as they us'd to do of matter of Fact p. 39. when sworn upon common Juries William the Second and Henry the First were Usurpers and Traitors p. 51. notwithstanding the People's Elections Clerus and Populus are to be understood onely of Tenants in Capite p. 56. never of the inferiour sort of People Wherefore they dote who say that the inferiour Clergy nay the dignified not Tenants in Capite came to Great Councils before 49 H. 3. It 's very true Against Jan. c. p. 70. that in our Ancient Parliament-Rolls the Knights of Shires are sometimes called Grantz des Counties or Great men of the Counties and well they might for without doubt they were most commonly the greatest Tenants in Capite under the degree of Barons in each County Against Mr. Petyt p. 116. 117. And for evidence of this the Great Tenants in Capite that were no Barons and perhaps the least Tenants in Capite in the times of Ed. 3. and Ric. 2. are call'd autres grantz or Grandes autres Nobles which were Barons Peers called by the King 's Writ into the Lords House at pleasure and omitted at pleasure Wherefore 't is to be observed that the Knight for the Shires might well be Noble or Grantz since they were call'd sometimes to sit in the Lords House And whether they that were chose for the Counties and did not sit in the Lords House as Barons Peers were Grantz or Nobles perhaps may be a Question As a choice piece of Learning I must acquaint you that though sometimes Fideles signifie qui in Principis alicujus potestate Glos. p. 15. ditione sunt qui vulgo subjecti appellantur Subjects in general yet unless there be special matter to shew the contrary 't is meant of Uassals who having received Fees are in the Retinue of some Patron or Lord if in the King's Retinue they are Tenants in Capite So when we find Writs directed Omnibus Christi Fidelibus Glos. p. 17. Here when there is no more Subject matter to determine it than when 't is omnibus Fidelibus Regni they must be our Saviour's Tenants in Capite When the Form of Peace Against Mr. Petyt p. 125. in the 48th of H. 3. was by the Assent of the King the Bishops and the whole Community of the Kingdom can any man say the Earls and Great Barons these Tenants in Capite gave not their Consents They must be included in and were a part of the whole Community of the Kingdom And indeed to speak the truth it is not denied against me Against Jani p. 71. but proves their Notion to those Vnwary Readers whom they seduce to have some good opinion of their Fancies Though that Form of peace is said in the Record to be Actum in Parliamento London Against Mr. Petyt p. 208. yet the Prelates and Barons were such as sided with Montfort p. 120. and the Community was the Body of his Army and the Citizens and other of the Faction they were not the Community of the Prelates and Barons onely as at other times Nay here were the Citizens and others besides the Army And yet the Community or Body of the Army took in all besides the Prelates and Barons And this must needs have been the Army Mat. Westm. p. 394. Posted convenientibus Londini Praelatis c. partis illius quae Regem suum tam seditio è tenuit captivatum because 't was after their work was over that the Assembly at London was And the Army it must be though as 't is idely objected it is far from appearing that all the Bishops Earls and Barons which consented had been in Arms. Though they that were of the Faction as is usual caball'd together and as some will say onely resolved upon what they would press the King to they hereby Statuebant c. made Laws before the consent of the King and all the Bishops Earls and Barons and it should seem before all were assembled or could be a Parliament And which such as never intended to understand will make a wondring
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.
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
Auxilium which is there meant of voluntary aid not due upon the account of their Houses being oâ— of the Kings Demeasn though indeed 't is then shewn that they had severalâ— times before been talliated Quid a new Paragraph Quid esâ— quod in hâc Causâ defensionis egeat must needs say I take all this to be sâ— plain that I know not which part ought to add any light to Is the difference between Tallage and a Voluntarâ— Aid obscure Or is it not well known that the Kings Demeasns only were talâ—â—liated and that the City having beeâ— talliated 't was in vain to urge thaâ— they paid only voluntary Aid But perhaps in the two next the oâ—scurity may lye and yet by the Doctorâ— Art of multiplying faults they maâ— make three obscure Paragraphs 2. This explains that part of the Charter He adds such to Cases to render it obscure Jani c. p. 26. Simili modo fiat de Civitate London that is as in all Cases besides those excepted Escuage or Tallage should not be raised but by a Common-Council of the Kingdom that is of all the persons concerned to pay so for the City of London unless the Aid was ordered in Common-Council wherein they and all other Tenants in chief were assembled none should be laid upon any Citizens but by the consent of their own Common-Council Na. So if a sum in gross were laid upon them and if the Ordinance were only in general Terms that all the Kings Demeasns should be talliated the proportions payable there should be agreed by the Common-Council of the City This consists of two parts First That where there was not the consent of a Common-Council of all the Tenents in chief the Citizens might of themselves give a Tallage which is not in dispute between us but is with admirable ingenuity turned into an assertion Viz. To such payment as Tâ—â—lage that Cities and Burroughs were not taxed or assessed towards any payments but by their own Common-Councils which is not to be inferred from the priviledge of one City suppose it were so for London nor can be gathered from my words which yield that even London might be Taxt or Assessed by the consent of the Common-Council of Tenents or that they Against Jani c. p. 113. as part of the Common-Council of the Land taxed themselves which is true but no man of sense can understand that to be the meaning of this part of the Obscure Paragraph but that something farther was intended 2. The second I need not explain since he understands for all his affected ignorance Indeed he would take in more places that after a Tax was imposed upon the City of London the Inhabitants or those who composed its Council met to proportion it so as it might be paid with as much equality as could be Na. the King did perhaps require a certain sum after a general Ordinance made by the Council of Tenents for a Rationabile auxilium Jani c. p. 26. This he yields to my hand that they always did if they would it seems convinced by that Record which shews that when the Council of the City would not agree to the Sum demanded by the King 't was de voluntate omnium Baronum nostrorum Civitatis ejusdem that the King talliated his Tenents per se or per Capita so much upon every head 3. This clears the last Paragraph which I need not recite it having no meaning differing from the Record but if my Record give not sufficient light and strength he I thank him according to his usual Curtesie cites one clear enough Dr. p. 115. Et cum praedicti Cives noluissent intrare finem praedict ' trium mille marcarum praedicti Thes. alii voluerint assidere illud Tal. per Capita So that till the Citizens refused the the Sum in gross the King did not Talliate each man in particular But I am told that this is nothing to my purpose 't is strange that he who blames me in other places for not quoting more than is for my purpose when nothing behind makes against me should now tax me for not skipping over any part of that Clause which 't was needful to take and explain entire To clear up his understanding if possible though I thought to have left this Task I will obviate an objection which such as our Answerer may make that 't is obscure how the Record of the Common-Council of London's concerning its self about the Charge laid upon the City should explain that part of the Charter which sayes Simili modo fiat de Civitate London but surely practice is a good Interpreter of a Law and there is this further evidence that here is provision for the power of the Common-Council of the City because that holding in Capite and being mentioned distinct from all the other Tenents there named in general it must be for something else besides that for which 't is joyned with the other Tenents But Excedimus tenebris in crepusculum from this obscurity and darkness to be felt by the Doctors groaping hand we come to broad day light When in the 39th H. 3. Against Jani p. 115. 117. Provisum fuit per Consilium Regis apud Merton that he should talliate his Demeasns though this was after King John's Charter which was intended to restrain the King from levying publick Taxes without publick consent yet it seems to be plain by the Record that the King by the advice of his Privy Council taxed the City of London even without the consent of the Common Council of his immediate Tenents whom he makes the Common-Council for all manner of Aid and Escuage But it may be said a Tallage was no publick Tax though the Tax here spoke of is made no more publick than the consent required to charge it Which consent according to him was from immediate Tenents only so that Tallage might be a publick Tax as well as any other And to be sure Scutagium concerning the Kings Tenents only and the Cases in which the King reserv'd to himself power of taxing without publick consent in his sense relating only to them the Tax because of tenure must be provided for as well as other if any other were there meant by Auxilium vel Scutagium Nay he owns expresly that according to the Law in King John ' s Charter London and other Cities and Burghs were to be Assessed and Taxed by the Common-Council of the Kingdom p. 117. 118. And he makes a reason of that provision to be the usage in the time of H. 2. for the King to Talliate or Tax them without such a Council The Doctor has doubtless the most particular convincing way of reasoning of any man he says that Law in King John ' s Charter intended to restrain the King from levying of publick Taxes without publick consent And the reason of this Artice in King John ' s Charter
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