nullo dissimiles reinforc'd And the Charter 9. H. 3. being after a strict Inquisition concerning the Liberties which were in England in the time of King H. that King's Grandfather Mat. Paris ed. Tiguri f. 305. it appears that the Tenants in Capite had neither in the time of H. 2. nor at any time after Right to impose any Tax besides Escuage only for the taxing of which they were to have Summons as is express'd and provided for by King John's Charter and if both Charters were in every thing alike was the Custom in the time of H. 2. And though some of the Arguments in my Book may drive at their being a Council for Tallage too Vid. the Additions yet 't is only upon the Advantage is given me from the Dr's making the Tenants a Council for all manner of Aid as well as Escuage This great Antiquary keeps a pother to make us believe that the Records of H. the Third's Charter are of no credit compar'd with his interpretation of Matth. Paris and in answer to the Conviction from the manner in which the Charter of H. 3. expresses the same thing with that of King John's tells us magisterially that the Great Charter commonly attributed to H. 3. was non of his but properly the Charter of E. 1. But when he sayes it was rather his Explication or Enlargement of that Charter of King John and Henry 3. p. 63. He by an unlucky dash with his pen hath spoil'd all and yields the Cause granting that Et de Scutagiis assidendis ought according to the meaning of King John's Charter to be divided and in another Clause from Et ad habendum Commune Concilium Regni and consequently that the Common Council of the Kingdom consisted of more than Tenants in Capite If Against Jan. c. p. 64. as the Dr. contends There is no provision made for any Summons to Great Councils or Parliaments in the Charter confirm'd 25 E. 1. And yet that Charter as appears by Record is word for word the same with that which was granted 9 H. 3. and the Charters of H. 3. and King John were not found to disagree in any thing then there was no Provision made in King John's Charter for any Summons to Great Councils or Parliaments no not so much as a general Provision which I yield And if he will have it that the Charter of E. 1. was most properly his Explication or Enlargement of that Charter of King John and H. 3. Does he not therein yield that there was provision made for Summons to Great Councils in the providing for all the Liberties and Free Customs of particular places and if ad habendum Commune Concilium Regni be taken in King John's Charter as joyn'd with the Customs in the several parts of the Kingdom and so that of being of or constituting the great Council is exprest among other their Liberties and free Customs The Charter of Ed. 1. may well be taken for an Explication of the Charter of King John and if it were doubtfull what King John's Charter meant by the Commune Concilium Regni the other makes it undeniable that no other Common Council is meant in King John's but such as was provided for by the Reservation of the Liberties and free Customs even of every Parish and as Generals include particulars tho the Charter of H. 3. and E. 1. have not the Right ad habendum Commune Concilium Regni Nota The provision for raising Escuage is no less general in the Charters of H. 3. and E. 1. express'd yet they do not in any thing disagree from King John's Whereas if the Council which according to the Charters of H. 3. and E. 1. and the practise in the time of H. 2. was to raise Escuage was the only Common Council of the Kingdom intended by King John's Charter 'T is evident that there was a Disagreement between the Charters for there is no provision in general or particular for any such Common Council of the Kingdom for particular provision there can be no pretence and the same general expressions which affect them take in others with them unless they were the only men that had Liberties and free Customs in any part of the Kingdom even as late as 25 E. 1. Against Mr. Petyt p. 39. which is so ridiculous a Whimsey that it deserves no answer tho it be patroniz'd by the Dr. who supposes that Tenants in Military Service and they to serve his Turn must be all Tenants in Capite were the only Free-men of the Kingdom till 49 H. 3. But it seems others had then a general Enfranchisement procur'd by the successful Barons An. 49 H. 3. to lessen their own Power 'T is particularly to be observed that this so mistaken and controverted part in King John's Charter concerning the Summons of all the Tenants in Capite was not only left out in the Magna Charta confirm'd in Parliament 2 H. 3. which was but 3 years after the making of King John's Charter and in the Magna Charta confirm'd 9 H. 3. which was but ten years after the making of King John's but likewise in the Confirmation of the Charter An. 37. of that King Henry as appears by the Legier book of the Priory of Coventry in the hands of that greatly learned Gentleman MS. Penes dominum Marsham John Marsham Esq but also there is not a word of it in the Magna Charta confirm'd 25 E. I. which the Dr. yields to be an Explication of King John's and instead thereof whereas the assessing of Escuage was mentioned about the middle of King John's Charter in those Charters of H. 3. and E. I. there is a particular and distinct Chapter viz. 37. concerning Escuage and that the very last except the saving and reserving to the Archbishops Bishops Abbots Priors Templars Hospitalers Earls Barons and all others as well Ecclesiastical as Secular persons all their Liberties and free Customs which before they had But as to the way of raising Escuage in an especial manner it is referr'd to the ancient course of Law as 't was in the time of H. 2. whose Laws in general were then intended to be confirm'd I cannot but make a farther Remark taking in that evidence of Fact which for a while I laid by that in all those Charters since King John's upon the several Confirmations the Arch-bishops Bishops Abbots Priors Earls Barons Knights Free-holders and all of the Kingdom are mention'd as granting to the Crown a 15th of all their moveable Goods and these that granted the Subsidy Register f. 175. in the old Register of Writs an Authority uncontrolable are called Commune Concilium Regni Wherefore 't is impossible for any man of Reason that considers to fancy that King John's Charter in the sense of the Dr. and others could exhibit the full form of the Common Councils of the Kingdom or Parliaments till 49 H. 3. Take my sense of the Council which way
Fee than a twentieth yet in the last recited Record he may meet with the sixtieth part of one Knights Fee in the Mannor of Norton 5. Being all that were Members of the Great Councils in those times of which our dispute is Jani c. p. 32. 35 36. 40. 57. 62 63 64. 66. 185. 219. were Nobles in which the Doctor and I agree and the Nobles came in their own Persons the libere Tenentes part of the Nobility were personally present Indeed Corporations holding in Capite might well come by Representation being they were but as one Noble and one Tenent and would have been an unweildy body to move to Council united as their interest was 6. King John's Resignation was void because 't was without the consent of the Commons Sanz leur assent and to say that this is without the assent of a general Council Colloquium or Parliament in those times when it was done unless he yield the same sort or degree of men to have been Members of the Great Councils formerly as then does not take in the full meaning but is to say nothing being the Commons manifestly assert their right as when they declared that they had ever been a Member of Parliament Against Mr. Petyt p. 133. and as well Assenters as Petitioners And what force does it bring to the Doctors Assertion that the Commons answer in the same form of Speech conceiv'd by the Barons ib. p. 140. Which he thinks worthy of great Letters is that an Argument that the Commons did not think that they ought to have been parties He himself grants that King John resigned before them that came upon a Military Summons Against Jani c. p. 22 23 24. that is as all who ought to come were concluded by them that came before all his Barons wherefore nothing wanted to the Confirmation but the Consent of the Commons And if the Commons were then an essential part of the Great Council they might come in Person unless the change in 49 H. 3. can be shewn to have been any otherwise than in the bringing in a Representation of them Vid. the 12th head 7. By the Charter of H. 1. for the King 's dominica necessaria Jani c. p. 34. or de arduis Regni all the Counties and Hundreds that is the Freeholders the Suitors at those Courts were to be summon'd to the Great Council as it had been in the time of the Confessor when there repaired to the Great Folcmote or General Council held once a year all the Peers Knights and Freemen at least Freeholders of the Kingdom 8. For demonstration that libere tenentes came to the Great Councils in their own Persons and as Members King John before the passing of his Charter writes to the Milites Fideles the last of which takes in all the libere tenentes and tells them that if it might have been done he would have sent Letters to every one of them wherefore these Members whose right is here acknowledged were single individual persons for they could not have been summoned to come by Representation in the case of such particular Writs or Letters unless the Representation were setled before the Summons which is not to be supposed These Arguments all but the last which the Doctor has supplied me with arise out of my former Treatise and I take it that this which the Doctor has occasioned will yield a few more without pressing V. Domesday c. Besides according to the terms first agreed on he received the Confessors Laws about this Folcmote Confutation p. 33. 9. Since William the First was no Conqueror it follows that the Great Folcmote or General Council in the Saxon times where to be sure all Proprietors of Land were to be Members could not have been turn'd into an Assembly of the Kings Tenents upon the old legal Title and without a Conquest there was no other And as there must have been a vast number of the Proprietors whom the Kings immediate Tenents could not oblige so they must have been Members of those Councils which laid any general Charge and that with the same priviledges the Tenents in Capite who came in Person had 10. Though demonstration it self will not satisfie unreasonable men yet not to mention more I shall urge the Authority of the Legier Book of Ely before cited Jani p. 41. the great Antiquity of the hand writing of which is beyond all exception to persuade the Doctor that my Notion is far from being precarious Since that M. S. shews that King Stephen consulted about the State of the Kingdom not only with the Bishops Abbots Monks and inferior Clergy but with the Plebs and they in an infinite number Concilio adunato Cleri populi Episcoporum atque Abbatum Monachorum Clericorum Plebisque infinitae multitudinis c. de statu Regni cum illis tractavit This single instance is sufficient to prove that the Primates Against Jani p. 62. Primores Proceres Magnates and Nobiles were not the Constituent parts of Great Councils in the Reigns of W. the 1st H. 1st King Stephen H. 2. R. 1st according to his restrictive and limited understanding and exposition of these words and phrases but that the CLERUS and POPULUS the general words which often comprehend all the Members signifie as well as Great Men the Common Freeholders as at this day nor need I examine his Book any farther but I hope the Doctor a man of that known integrity as his excellent Book expresses him to be will now make good his promise to be of my opinion when I should evince that Common Freeholders had this great priviledge p. 62. 11. The Lords right of answering for their Tenents being founded in the imaginary feudal right which is made to extend only to Tenents by Knights Service the Socagers being free from that Law could not be charged without their own consent and that given by word of their own mouths if they pleased 12. The Authority cited by Mr. Cambden Jani c. p. 248. and approved of by our Author as well as by me shews that the only change in the Great Council was in leaving out of the special Summons what Earls and Barons the King pleased Against Mr. Petyt p. 226. ib. p. 228. Confutation p. at the right of all other Barons as Singular Persons to share in the Legislature was preserv'd by the alia illa â—revia by which the Representatives 〈◊〉 the Counties came and being all the Members of the Great Councils but Citizens and Burgesses or all such Baâ—ons as aforesaid came before the change in their own Persons and no 〈◊〉 kind of Members were then Creaâ—ed and yet there was a substantial â—â—teration Against Mr. Petyt p. 210. a new Government fram'd â—â—d set up this alteration must consist 〈◊〉 the Commons or Barones Minores â—heir being put to Representatives when before they came Personally 13. I
our Lord the King and live in the said Kingdom And there they ought to take 〈◊〉 for the Indemnity of the Crown of this Kingdom by Common-Council And there Provision is to be made to repress the Insolence of Malefactors for the good of the Kingdom For it was enacted that there all People and Counties should meet every year once a year to wit in the beginning of the Kalends of May and there to confederate and consolidate themselves Sicut Conjurati fratres with an inviolable Oath and Faith as sworn Brethren to defend the Kingdom against Foreigners and against Enemies together with their Lord the King and to keep his Lands and Honours with all Faithfulness and that they will be faithful to him as to their Lord both within and without the Realm of Britain So ought all the Princes and Earls to do and also to swear before the Bishops of the Kingdom in the Folkmote and also all the Peers of the Kingdom and the Knights and all the Freemen of the whole Kingdom of Britain ought as is aforesaid to swear Fealty to their Lord the King in full Folkmote before the Bishops of the Kingdom 〈…〉 Free-men of the whole 〈◊〉 ought according to their Faculties and â—ossessions and according to their Fee and according to their Tenements to have Arms and to keep them always in Readiness for the Defence of the Kingdom and the Service of their Lords to be performed and fulfilled according to the precept of their Lord the King Here is not that Provision against Exactions which was afterwards necessary but every other point of William's Grand Charter is fully express'd They were to be sworn Brethren for the preservation of the Rights of the Crown for the keeping the Peace and the Laws and Customs of the Kingdom which secured the Interests of private-men to the Liberi homines totius Monarchiae there answers the Folkmote or Vocatio Congregatio populorum gentium omnium or universi qui sub protectione pace Domini Reges degunt These surely were more than Tenants by Knights Service for they are distinguish'd into Principes Comites Proceres Milites liberi homines universi totius regni And 't is not to be argued that they were Tenants by Knights Service because they were to defend the Kingdom with Arms according to their real and personal Estates For I take it none ever heard of a Tenant by Knights Service of a Chatell If our Disputant were as conversant in Antiquity as he pretends or as faithful as he ought to be and have left off his Designs he would have taken notice of the Assize of Arms in Henry the Second's time which confirms my Sense of the former Laws Quicunque habet foedum unius militis habeat loricam cassidem clypeum lanceam omnis miles habeat tot loricas cassides Hoveden clypeos et lanceas quot habuerit foeda Militum in Dominico suo quicunque liber laicus habuerit in Catallo vel in redditu ad valentiam 16 Marcarum habeat loricam et cassidem et clypeum et lanceam quicunque liber laicus habuerit in Catallo ad valentiam 10 Marcarum habeat halbergellum et capelet ferri et lanceam Et omnes Burgenses et tota communia liberorum hominum habeant Wanbais et capelet ferri et lanceam et unusquisque juret quod infra festum Sancti Hillarii haec arma habebit et domino Regi scilicet Henrico filio Matildis Imperatricis fidem portabit et haec Arma in suo servitio tenebit secundum praeceptum suum et ad fidem Domini Regis et Regni sui Whoever has one Knights Fee let him have an Habergeon and Buckler and Lance and let every Knight have so many Habergeons and Bucklers and Lances as he has Knights Fees in his Demeasn or under him Whatever Free Lay-man has in Chatells to the value of fifteen Marks let him have an Habergeon and Buckler and Lance. Whatever Free Lay-man has in Chatells to the value of 10 Marks let him have an Halbert and Capelet of Iron and let all Inhabitants of Towns Cities Burroughs and all the Commonalty of Free-men have a Wanbais and Capelet of Iron and a Lance and let every one swear that within the Feast of St. Hillary he will have these Arms and will bear Faith to their Leige King to wit to Henry the Son of Matildis the Empress and will hold these Arms in his Service according to his Precept and for the Defence of their Lord the King and his Kingdom Good Mr. Dr. Were all those who were to bear Arms in the King's Service his Tenants by Knights Service Agreeable to this one of the Enquirers upon the Statute of Winchester 34 Ed. 1. is If they have Weapons in their Houses according to the Quality of their Lands and Goods for maintenance of the Peace according to the Statute Our Author p. 1. who has an admirable Faculty of rescuing these sacred things from groundless and designing Interpretations would make the solemn Assembly in the Folkmote In Folcmoto semel quotannis sub initio Kalendarum Maii tanquam in annuo Parliamento convenere Regni Principes tam Episcopi quam Magistratus Liberi homines no more than an ordinary County Court and is pleased to put a Slight upon the Authority of the true Sir Henry Spelman who rightly takes it for a Great Council And the new convincing Reason for the former Sense Glos. tit Geniotum is because the Court where Causes were determined before the King's Provost or Officer New Glos. p. 19. is called Folkmote too but pray why is not this the great Folkmote And why may we not from hence take the Platform of the Great Councils in these Times and consequently of such as King William confirmed together with the Laws of the Confessor Was an ordinary County Court in time of War or Danger to act as a Council in providing for the Safety of the Crown and other things for the profit of the Kingdom And were the Bishops of such a spiritual Nature that they could animate the whole Kingdom as the Soul does the Body and be all at the same time in each distinct County of England Jani Angl. facies nova p. 34. This clears beyond Exception the Charter of Henry the First which provides for the Assembly of the Counties and Hundreds If he had look'd but a little farther de Heretoc he would have found a Folkmote that was held twice a year when this was but once and the Sciremote distinct from that The first was the Sheriffs Tourn the other the County Court and that observed by him might have been either the monthly Sciremote or that Folkmote that was held twice a year Ita vero bis Folkmote singulis annis semper celebrari debet per universos Comitatus c. But to convince him more fully of the Absurdity of his Confidence He
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
Jus Anglorum ab Antiquo OR A CONFUTATION OF AN Impotent LIBEL Against the Government BY King Lords and Commons Under pretence of Answering Mr. PETYT and the Author of Jani Anglorum Facies Nova WITH A SPEECH according to the Answerer's Principles made for the PARLIAMENT at OXFORD Ne Sutor ultra crepidam LONDON Printed for Edward Berry in Holborn-Court in Grayes-Inn 1681. THE PREFACE THere was a Book lately publish'd against Mr. Petyt and my Self which not only treats us with Pedantick Scorn like those that are to Cap the Author within his Colledge but its seems to trample on the best Constitution our Government it self under Colour of its being New in the 49th of Hen. 3. Against Mr. Petyt p. 110. when it arose out of the indigested Matter of Tumults and Rebellion and so not having a Legitimate Birth as not born in Wedlock between the King and his People it may be turn'd out of Doors by the Help of that Maxim Quod initio non valet tractu temporis non convalescit How can a Bastard become a Mulier The Treatise which was to prove the Fact Against Jan. c. p. 1. Matter of Fact only was cried up for unanswerable and perhaps 't was imagined that there was no possibility left for a Reply since the Writer who has render'd himself famous in his Generation as if he knew better how to manage a Design than an Argument pass'd it about only to such Hands as were obliged by Promise if not by Principle to conceal it But Mr. Petyt and my Self having by Accident seen bis Book and observed some Heads which we intended to expose to the World At last out comes the happy Birth yet 't was hoped that by that time there might be Proselytes enough to defend it with Noise and Acclamations and Contempt of all Opposers Records Ancient Historians and our Ancient or Modern Lawyers Though generally in a Matter of Argument we ought to leave to the Reader the Censure of what we think we confute without remarking how absurd or criminal it is yet when such Reflections are almost the only Arguments on the other side and they when pronounc'd tanquamè Cathedrâ must have some Authority 't is fit that even these trifles should have their due provided they be answered with Decency of Expression And we know in what manner the Wise Man advises us to answer some People I should have been glad if this Author'â— Civility had obliged me to treat him at another Rate than I do since I delight not iâ— this way nor think thereby to please such Readers as I would court to be Judges between us But why should I Apologize for the managing of this Controversie in a way wholly New to me Since the severest Expressions are but retorted and transcrib'd from our Answerer's Original and indeed it may well be an Original for 't is without Example If in any thing I seem intemperate I may say with an Author well known Excess of Truth has made me so Our Author 's very Notions are Satyrs upon themselves nor can any thing more expose a Man than a seemingly Gigantick Endeavour to remove the fix'd Stars the Lords from the Firmament where each shines in his setled Station and to take from the Commons of England that Spot of Earth which they enjoy and tread on While the Sons of Titan lay Pelion upon Ossa one Mountainous Fiction upon another the Mountains have a quick Delivery and bring forth Confusion to the Giants What has been the Product of his many Years Labours I think may be shewn in Miniature under these Heads 1. That the Norman Prince against his reiterated Promises and against the great Obligation of Gratitude to those of the English who assisted him Against Mr. Petyt p. 29 30 31 32 33 34 35 so p. 176. took away all their Lands and Properties and left them no Right or Law 2. That from the Reputed Conquest and long before under the British and Saxon Governments to the 49th of Henry the Third None came to the Parliaments or great Councils of the Nation where Life and Fortune were disposed of but the King 's immediate Tenants in Chief ib. p. 39. by Knights Service 3. That even they came at the Discretion of the King and his Council ib. p. 79. 228. ever after the 49th 4. That the House of Commons began by Rebellion in that very year ib. p. 210. 228. 229. nay and the House of Lords too 5. That the Constitution of the Lord's House ib. p. 227. 228. 229. consists at this very day in the King 's calling or leaving out from special Summons to Parliament such Earls and Barons as he pleases 6. That by vertue of the New Law imposed upon the People p. 29. by the Conquerour p. 39. none within the Kingdom were Free-men or Legal men but Forreigners who came in with him being such as nam'd and chose Juries and serv'd on Juries themselves both in the County and Hundred Courts who were all Tenants in Military Service None surely but such as read without observing any thing whose Books can't beat into their dull Brains common Reason and who never were acquainted with that excellent Comentator'â— practise will think that I need set my self to argue against every one of these ' Tâ—â—ll be enough if under those Heads which I go upon to destroy his ill laid Foundations I prove them upon him for most of them confute themselves Truly I cannot but think Mr. Petyt and my self to have gone upon very good Grounds since they who oppose them are forc'd to substitute in their Rooms such pernicious ones as would render the Foundation both of Lords and Commons very tottering and unstable Not to mix Lords and Commons together I will endeavour to do right to the dignity of that Noble Order and their Interest in Parliament apart from the other The Constitution of the House of Lords our Antagonist as I shall shew will not allow to have been setled till after the time of E. 1. if it be yet Whereas for a short Answer to his new Conceit the Earl of Norfolk Rot. Parl. 3. H. 6. n. 12. p. 228. in the third of H. 6. lays his Claim to and has allowed him the same Seat in Parliament that Roger Bigod his Ancestor had in that great Court in the time of H. 3. And though on the side of the Earl of Warwick his Competitor 't is urged that the Earl of Warwick had the Precedency by King H. 4◠〈◊〉 Commandment 'T is answered Yat Commandement yave no Title ne chaungeth not the Enheritaunce of the Erle Mareschal but if or unless hit hadde be done by Auctorite of Parlement And if Precedency were a setled Inheritance which could not be alter'd but by Act of Parliament how can a fixt Right of coming to Parliament be taken away otherwise Though our Author supposes it to be at the meer Will and Pleasure
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
required or what was therein contained Upon this Habilo Concâ—â—io mature Advice being taken and that of the great Council for that at least consented â—n not opposing the King sent his Precepts to the Sheriffs throughout the Kingdom to cause an Inquest of twelve Knights or else of twelve lawful men â—hat is Free-holders to be return'd 12 Milites vel legales homines out of every County respectively concernâ—ng the Liberties which were in Engâ—and in the time of King Henry that King's Grand-father The Charter mentioned by our Adversary was 9. H. 3. And so after this Tryal the Precept for which was 〈◊〉 indeed the actual Confirmation of what they found or Judgment upon it was not till two years after â—ut then the Clerus Populus cum Magnatibus where by the way the Populus could not be the Magnates â—he Inferiour Clergy and Laity with the great ones go on upon their former Issue and would give no Supply to the King's Wants till he would grant Petitas Libertates the Liberties they had before sued for or demanded not barely as a Confirmation of King John's Charter M. Par. Supra p. 305. but indeed these very Liberties which they pleaded to have been such in the time of H. 2. The Denial of which occasioned the fighting for them against King John were in Substance no way different from the Grant made by King John in Affirmance of the Common Law And so the Charter of H. 3. was in nullo dissimilis to King John's and if there were any Difference the Clause by which the great Priviledge of Tenants in Capite is argued for being omitted 't is a Sign that admit it constituted them a full Parliament this was not their Right in the time of H. 2. nor return'd so to have been but was the only thing extorted by Force and fell with it This were enough to set aside all his Arguments nay and that Language too which serves instead of them but I cannot deny my Reader and my self the Pleasure of observing him more particularly and if it may be of knowing him intus incute His two main Designs if he be steady to any but to contradict right or wrong are 1. To prove that William the First took away from the English their Estates â—nd as he imposed the Tenures and Manâ—er of holding our Estates in every respect so he did all the Customs incident to those Estates The Customs I thought had been within the Manner but let that go Des Cart. Principiae Phil. p. 17. Per modos planè idem intelligimus quod aliâ—i per attributa vel qualitates c. the Manner implies the Quality as he might have been taught long since â—y Des Cartes this extended to all the Estates derived or come to any now â—nd yet in the very same page 't is but most of them being feudal not all I have already shew'd his Denyal of the Conâ—ueror's Right to take any and thus â—his Mountain is finely brought to Bed by the Dr. 2. As a Consequent upon William's dividing the Land amongst his Followâ—rs he would shew that this King's Grantees and that in Capite by Knights Service were the only Members of the Great Councils Against Mr. Petyt p. 2. and that no others had any Communication in State Affairs unless they were represented by the Tenants iâ— Capite Against Jan. c. p. 12. In another place No doubt but the Tenants in Capite were the General Council of the Nation If therefore he own that there were Councils more general than such as were compos'd of Tenants in Capite only does he not yield the Cause Not to repeat his Concession for Towns incorporate not holding in Capite he yields it for single Persons who still held not by that Tenure In many places he grants As p. 112. That all the Nobility of England met to treat with the King Against Mr. Petyt p. 131. or to the like purpose Farther that the Baronage or Nobility included the Tenants in Capite and sucâ— great men as held of them by Military Tenure So that in effect if the Tenure or as he expresses himself A Tenemenâ— or Possession Glos. p. 10. neither added to or detracted from the Person of any if free oâ— bound according to his Blood or Extraction An ordinary Free-holder in free or common Socage might as well have been provided for as to a Right in coming to Parliament as a Tenant by Knights Service of the King's Tenant in Chief But he tells us then theâ— must be great men holding by these Services But to shew that he insists not upon this finding a vast number of men at the passing of King John's Charter which was Inter Regem liberos homines totius regni Glos. p. 26. he yields that the Retiâ—ue and Tenants in Military Service were Members of the Council though upon second Thoughts he tells me these liberi homines were the same which â—he King calls in his Charter Liberi homines nostri Against Jan. c. p. 9. These Liberi homines nostri were Tenants in Capite So that the Tenants of Tenants in Capite were Tenants in Capite and this suppose explains that Passage where â—e says Against Mr. Petyt p. 176. Whoever held of the Tenants in Capite by mean Tenure in Military Service held of those Barons or Tenants in Capite by the same or like Tenure that themselves held of the King That is every Tenant by Knight's Service of the King's Tenant by Knight's Service held in Knight's Service which â—dentical Proposition I heartily thank â—im for or else every such Tenant of â—he King's Tenant in Capite held of the King in Capite that is immediately and â—ot immediately in the same respect But these Tenants of Subjects such as were Members of the great Council were however concluded by the Acts of their Lords Against Mr. Petyt P. 113. They that held of the Tenants in Capite by Knights Service were bound by their Acts viz. The Acts of the Tenants in Capite that is These Tenants were Members of the great Council and no Members as their Lords represented them and yet did not represent them but they came themselves But to be sure none but Tenants by Knights Service who were Homagers and sworn to obey their Lords as the ordinary Free-holders were to keep the Laws and defend the Monarchy Jurati fratres-franck-pledges and the Peace of the Kingdom were in his Sense bound by the Acts of their Lords So that there was a necessity for the Bull and Multitude of Free-men or small Free-holders Glos. p. 31. to be bound with Sureties to their good Behaviour in such manner as the Law had requir'd amongst themselves otherwise the Government could not secure it self against their Violations of the Laws they neither meeting in the Great Councils nor being bound by the Acts of such as met any more than the Tenants in
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
〈◊〉 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
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
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
would have the Discourse about these ib. nay and the Conquest it self to be out of the Question and then pray what is the Question It cannot be whether Tenants in Capite represented p. 2. or by their Votes concluded all that held by any other Tenure Nay whether these and their Tenants could do it because this Tenure and manner of holding Estates came in with the Conquerour I hope I shall not seem tedious though I am long upon this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of a Conquest that Corner-stone on which if he knows what he do's which I cannot but doubt of sometimes he Erects a fanciful Scheme of Government And thus the lofty Fabrick rises one Story upon another William having made an actual Conquest Against Mr. Petyt thereby had the absolute Disposal of all the Lands of the Kingdom p. 35. and did p. 176. according to his lawful Power give all away to his Followers who though French p. 35. Flemmings Anjovins Britains Poictovins were all metamorphos'd into Normans p. 43. upon whom onely the Feudal Law was executed and observed The King's Grantees though ordinarily a Tenement or Possession neither added to Glos. p. 10. or detracted from the Person of any man if free or bound according to his Blood or Extraction might well be all the Free-men of the Kingdom because the Conquest had made all the English Slaves and the King granted onely to his Great Followers which were Free before But when these Grantees granted out to others p. 176. the Subfeudataries made part of the Freemen of the Kingdom as holding by Knights Service these were the men ib. p. 39. the onely Legal men that named and chose Juries and served on Juries themselves Carta H. 1. both in the County and Hundred Courts Barones Comitat. qui liberas habent terras in which Courts they were the onely Suitors Alas no body else had any free Lands in the Counties Therefore p. 42. these must have been the men that at first Elected two Knights in every County out of their own number and onely they were Electors when first the Body of them began to be represented And unless others are impower'd by the 8th of H. 6. c. 7. which restrains the numerous Electors to Free-holders of 40 s. per ann As the Tenants in Capite came before the 49th in their own Persons and represented the Body of the Commons of England and when first the Body of them that is the Tenants in Capite began to be represented they onely as was proper chose their own Representatives so it ought to be at this day And thus the Tenants in Capite that is they alone and yet they and their Tenants by Knights Service have ever been and still ought to be the onely Members of the Great Council I know he will venture hard but he will make all this good in his next if he can there being a narrow Interest in some for which they would sacrifice the Publick But I shall think our Government will have been finely brought to Bed by his Midwifry when such a monstrous brat is own'd by it Vid. Letter to the Earl of S. But if King William the Master-builder refus'd what this Author would make the Head of the Corner and was not so absolute a Conquerour as to leave the English neither Estates nor Fortunes Against Mr. P. p. 43. ib. p. 179. what becomes of his Airy Ambuscade He has the Confidence to refer to Dooms-day Book in every County for this Fiction and that will satisfie a man wilfully blind p. 176. that William the Conquerour divided all the Land in England amongst his great Followers Now what if I shew out of himself and this book of Judgments concerning Lands and Services that he divided very little of the Lands in England to his Followers to be sure that he was far from distributing all Our Author spared the particular Proof I 'll warrant it to make us believe it would require a Transcript of the whole Book but I think I shall impose upon no body by affirming without transcribing the greatest part of it that even where Lands were enjoyed by other Owners than such as held them in the time of King Edward and upon other Titles yet the Lands continued for the most part to hold in the same Manner as before Whereas William according to him brought in a new Manner and none were so much as Free-men who held not by Knights Service which he setled over all jure haereditario We generally shall find that there was no change of the Manner or Quality of the Service but only of the Quantity Tunc geldavit modo geldat for so much either more or less according to the Improvement or Fall of the Land and frequently that which before paid for a certain number of Hides paid nothing at the making of the Survey The Rent I conceive was in proportion to the value of the Land that being seldom named but only how many Hides Acres Roods c. there were and these Tenants seem to have held in free or common Socage Sometimes they were such as potuerunt ire cum terrâ quo voluerunt which I doubt not Doomsday Ties Taiâ—i tenuerunt non potuerunt ire quolibet uâ— flet tenuiâ— de Tofti sed non fuit alodiâ—m were the Alodiarii sometimes they were not so free but held by Villain Services though themselves were free and these were Tenants in common Socage Sometimes Milites are named but rarely so that 't is certain he can have but small Assistance from Dooms-day book and being there sometimes descent sometimes purchase and now and then the King's Grant is mentioned who can tell by that whether generally the Lands were enjoyed by the one or the other Title since especially 't is most usual only to name the Persons that held formerly who did then and by what Services I take it there are as many and as often English names there as others and though the 〈…〉 of names different from the former 〈◊〉 Vid. Caâ—den's Remains of Sir names from p. 136. to p. 141. that the Christian 〈…〉 which 〈…〉 from their Fathers are more us'd there than Sir-names But I thank him he has given me an easie Task to shew that in spite of his Conjecture this great Survey demonstrates that there were Proprietors of English-men who held Free-lands upon Titles paramount to what he insists upon If notwithstanding our Author's Quotation out of Tilburiensis But they should not claim any thing from the time the Nation was conquer'd under the Title of Succession or Descent Tilburiensis an Officer of the Exchequer who was for bringing Grist to the Mill I produce a List of Free-holders who enjoyed their Lands of the Seizin of their Ancestors Against Mr. P. their own p. 34. or theirs of whom they purchas'd Against Jan. c. p. 1. from before the counterfeit
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
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
of the Rent of Serjanties assest by Robert Passelewe you do not distrain Jacob de Archaungere for two Marks and an half for the Tenement which he holds of us by Serjanty in Archamgere in the County of Southampton by the Charter of the Blessed King Edward to the Ancestors of this Jacob but for ever free the said Jacob from the foresaid two Marks and an half because we have confirmed the Charter of the forenamed St. Edward and will have it inviolably observed Here is an inspeximus in effect of the Confessor's Charter and the Confirmation lies in the Judgment that this was that King's Charter Whether the Serjanty here mention'd were the greater In Kenulph the Mercian King's Charter a discharge of all Services but the Expedition of 12 men with Shields Burgâ—ote c. White 's Sacred Law p. 149. which was Military Tenure for such there was before William's Entrance Mr. Selden indeed opposes this and contends that what lay upon Lands then was no Tenure from any Reservation but onely what the Law of the Kingdom had made incident to all Lands Yet I see not how that will solve a special Reservation of a certain number of men Or whether the Serjanty were the Little or Petit Serjanty is not within our Dispute because either way here is sufficient Evidence that there was a Property left in the English notwithstanding the Clamour of a Conquest And that we did not receive our Tenures Against Petit. p. 31. and the manner of holding our Estates in every respect from Normandy brought in by the Conquerour For this man held in the same manner as his Ancestors did in the time of St. Edward And with this agree good Authors Gulielm Pictaviensis p. 208. Nulli Gallo datum quod Anglo cuiquam injuste fuerit ablatum There was not given to any French-man what was unjustly taken from any English-man Now this was a Poictovin Against Petyt p. 35. many of which came in with Duke William and is more to be credited in this matter than the English Monks who since he reduc'd the Bishopricks and great Abbies to Baronies thought this Injury done to the Church as they took it was no way to be accounted for unless he were represented as taking from the Laity their Property which they thought a much lower instance of his Power than giving this Law to the Clergy God's special Lot and Portion But on the other side this Poictovin was more likely for the Glory of William's and his Country-mens Arms to represent them as great as might be in the number of their Slaves and to have a whole Nation of them is doubtless a glorious thing in the Doctor 's eye And with this Poictovin may be joyned honest Knighton Knighton p. 2343. lib. 2. cap. 2. who sayes Quidam possessiones habentes de dicto Willielmo seu ab aliis Dominis quidam vero ex emptione habentes sive in Officiis sub spe habendi remanserunt There were some who had Possessions of the said William but some who had them by Purchase or else who remain'd in Offices under the hope of having some as their Offices might enable them to purchase Here some of the Normans were forc'd to purchase otherwise they had gone without Possessions And this must have been of the English otherwise they would have divided the Land amongst themselves with their Prince's consent and need not have made other payment than the Venture of their Lives CHAP. V. The Socmen enjoyed Estates of Titles prior to the suppos'd Conquest BUT besides the uncontroulable Authority of Domesday-book and the Testimony of Authors well back'd with a plain Record with the Doctor 's good leave I shall add another Argument to prove the continuance of the English Rights or that William govern'd not as a Conquerour He may know that there were such men as Sokemanni whose Lands were partible and who held not by Knights Service Whereas King William granted out the whole Kingdom as the Doctor fondly imagines by Knights Service and the Lands of such Tenants descended to the eldest Son wherefore the Sokemanni must needs enjoy their Estates upon Titles prior to King William's not deriving under his Grant since their Lands to obtain that Tenure must have been anciently divided before the time of H. 2. But Glaâ—vil lib. 7. cap. 2. infra if there were any Evidence to the contrary there could have been no Prescription to the Tenure And surely if it was no ancienter than King William's Title the Evidences of the contrary could not be lost Suppose Lands holden in Free-socage were forfeited to the King in which Case Lambert's Peramb of Kent Mr. Lambert yields that the Tenure may be alter'd and he granted it out to hold by Knights Service how could a Custom prevail to alter this Tenure contrary to the very Grant If they could produce their Deeds they shew'd themselves to be Tenants by Knights Service And there were so many Sockemanni even in one County that of Kent that though some Grantees might lose their Deeds yet not so many as there were distinct Estates in Socage For Proof of the Premisses to my Conclusion 1. That there were Sokemanni before William nay that for the most part at least Land-owners were such appears from St. Edward's Law This obliged all men to bear Arms Leges Sancti Edwardi de Heretochiis habeant Haeredes ejus pecuniam terram ejus sine aliquâ diminutione rectè divident inter se. proportionably to their real or personal Estate which last together with the Land of him that dyed in the Wars was to be divided among his Heirs And surely the Law does not suppose that they must always be female Heirs Such as dy'd in the Wars who were Tenants by Knights Service according to our Authors Sense of Qui militare servitium debebant were Sokemanni holding in free Socage Glanvil lib. 7. cap. 2. as Glanvil explains it Si fuerit liber Sokemannus tunc quidem dividetur haereditas inter omnes filios quotquot sunt per partes equales si fuerit Socagium id antiquitus divisum If a man be a free Sokeman then indeed his Inheritance shall be divided amongst all the Sons if it be Socage and that anciently divided It was not improper to say if it be Socage because a Sokeman in respect of some Lands might have others not held in free Socage This is sufficient Evidence that such there were after the Noise of Conquest and that the Lands were to be anciently divided 2. The Estates deriv'd from the Conquest Glos. Tit. Parl. Terram totam ita disposuit ut suum quisque patrimonium de Rege teneret in Capite were according to our bulky Author held by Knights Service Nay the second part of the Glossary which the Dr. invidiously imputes to Sir Henry Spelman tells us that though William was no Conquerour yet he divided out and disposed of all the Land to his great
men Against Jan. c. p. 99. so that even the Normans Estates were taken away too And this that erroneous Glossary makes under the Feudal Law too for from thence 't is inferr'd that the great Tenants in Capite had Right to impose Laws upon them that held of them and to exclude the whole Kingdom besides from the Great Councils This though no Conquerour the Dr. left out either as being ashamed of it being 't is little less than a Contradiction to say a man was no Conquerour and yet seized upon all the Lands of the Kingdom and forc'd them to submit to such Seizure so that he conquer'd the Land or because it contradicts his Notion of William's being a Conquerour so that he himself had as much reason to exeept against this Book as others but it seems Against Mr. Petyt p. 35. out of a stark Love and Kindness to Truth he left only what was against him but took what was for his Purpose And for the Support of it's Credit tells us a formal Story the Attestation to which from outward Circumstances I never thought it worth the while to examine since I have so much Reason from within it self to believe it to be spurious Against Petyt p. 13. and so ought he For if he have any respect to that great man's Memory he will not suffer him to say that William divided out the whole Kingdom to hold under the Feudal Law when before he had observ'd of Gavelkind the general Tenure of the Lands in Kent Feudalibus legibus non coercetur 3. The Lands of all these Grantees of King William the First descended to the eldest being held in Knights Service Si miles fuerit vel per militiam tenens tunc secundum jus regni Angliae primogenitus filius patri succedit in totum Glanvil lib. 7. c. 2. If a man be a Knight or holding by military Service then according to the Law of the Kingdom the Eldest shall succeed his Father to the whole But for the greatest Authority we have an Act of Parliament which having full Power to alter the Tenure 31 H. 8. c. 3. enacts that certain Lands in Kent shall descend as Lands at Common Law and as other Lands in the said County which never were holden by Knights Service us'd to descend Here the Descent of Knights Service is the same with Descent at the Common Law which was to the Eldest and this is oppos'd to the Descent of Lands in Gavelkind which was Socage And thus have I proved every thing which upon this Head was needful to vindicate the Right of the English and to prove that their Rights were own'd in Practice notwithstanding the vain Flourish of a Conquest It may be objected perhaps that the Feudal Law which was exacted and observed by and upon only the Normans might have related only to such as held immediately of the King for that his Grantees might and did often grant out to others and their Heirs for ever to hold in free Socage Yet this will not do because such Grantees would have been Free-men but all the Free-men of the Kingdom were Tenants by military Service though by their Tenure any of them were only to pay a Rose a Spur a Sum of Money or any other thing Therefore hereby is my Argument inforc'd if William had been a Conquerour in the Sense strove for as disseizing all the English and making Grants of their Lands to the Normans and that to hold by Knights Service and all the Normans both they who were here before William's Entrance if any such had any shares allow'd them and they that came in with him or followed for the spoil were under the Feudal Law requiring Knights Service and these were the only Free-men How came there to be such a Race of lawless Free-men as the Sokemanni p. 31. And how is it possible that the manner of holding our Estates in every Respect with all the Customs incident thereto should be brought in by the Conquerour p. 29. Whoever reflects upon these things will as he says of a reverend Judge acknowledge the Dr. to be very ignorant in the History of this Nation or that he spoke out of Design the words which I fairly cite from him in relation to the Conquest and the Great Council suppos'd to have been establish'd thereby CHAP. VI. Proved from the Beginnings of Charters and Writs that the English were not disseized of all by William the First THough even the former Head of the Socmen such as I find holding in parigio was a needless Addition to the particular Consideration of Domesday book Domesday which might serve instead of a thousand proofs that William the first did not divide all the Land of the Kingdom to his Followers and consequently did not impose upon the people such a Representative as is fondly conjectured Yet I cannot omit the mention of those numerous Writs and Charters Vid. numbers in the Monasticon which are directed Omnibus Baronibus hominibus suis Francis Anglis Or as one of the Charters of William the First Carta W. 1. Monasticon vol. 1. f. 397. into one County and so on occasion into all Archiepisc. Justiciariis Vicecomitibus Baronibus fidelibus suis Francis Anglis Eborascire Admit that Fideles signified Feudal Tenants this shews that the English had shares as well as others but here being the Vicecomites before Barones I should vehemently suspect That the Free-holders of the County were meant At least Carta Antiqua n. 11. we find the ordinary Free-holders and they English as well as French Vid. his Glos. complemented by Matildis as persons of some Quality and Interest in the Nation Matildis Dei gratia Anglorum Regina Episcopo London Justiciariis Vicecomitibus Baronibus Ministris omnibus fidelibus Francis Anglis Here being Ministri between Barones fideles the Ministry must be such as by their Tenures were bound to attend in the Wars and the Fideles the King 's ordinary Subjects there being no Mat. Paris to explain fideles here and help us out of this Difficulty which is made greater by King Stephen's Charter Archiepis Episcopis Abbatibus Comitibus Justiciariis Baronibus Vicecomitibus Ministris omnibus fidelibus suis Francis Anglis totius Angliae Nay to perplex the Cause the more we find under Subjects Free-holders English as well as French and these were such as were the Curia Baronum where Tenants in free and common Socage were Suitors as well as such as held by Knights Service Willielmus Comes Gloucestriae omnibus Baronibus hominibus suis Francis Anglis atque Walensibus 'T is not improbable that the Welsh Vid. Taylors Hist. of Gavelkind Jani Angl. p. 41. which were some of his Tenants were then all Socagers but then the Codex Roffensis shews how greatly the English were interested in the Counties in the time of William the First Praecepit
Rex Comitatum totum absque morâ considere homines Comitatûs omnes Francigenas praecipuè Anglos in antiquis legibus consuetudinibus peritos in unum convenire But of this more when I come to shew at large that others besides Tenants by Knights Service served on Juries c. It farther appears that by Degrees the English were much more considerable than the Normans or other Strangers for that they were all lost and swallow'd up in the great body of the English and therefore they only are named upon all occasions And I believe as far back as Henry the Second's time the French eo nomine will not be found distinguish'd but if however the Tenants in Capite or such as were their Tenants by Knights Service which was laid upon only the Normans themselves Against Mr. Petyt p. 43. were the only governing part and the only Members of the Great Council the Justiciaries Chancellors Lawyers the Ministerial Officers Against Mr. Petyt p. 30. 39. and Under-Judges Earls Sheriffs Bailiffs Hundredaries the legal man and Jurors The Government must needs have been too weak to support it's self when the Ballance of Strength and Property was in other hands and therefore 't was morally impossible that only Tenants in Capite should have been allowed to be of the Great Council when the Nation made Terms for it self upon the Success of their Arms 16 of King John CHAP. VII The Charters of William the First and King John considered with a Confirmation of the Notion of the ordinary Curia distinct from the great or general Councils SECT 1. I know but of two Mediums used by the Dr. which look like Arguments to prove that the Tenants in Capite by Military Service were the only Nobility or the only persons which composed the Great Councils 1. The Grand Charter of William the First 2. That of King John 1. He insists upon two Branches of the first Charter Volumus etiam ac firmiter praecipimus concedimus Vid. Jani Anglorum facies nova p. 22. ut omnes liberi homines totius Monarchiae regni nostri praedicti habeant teneant terras suas possessiones suas bene in pace liberè ab omni exactione injusta Against Mr. Petyt p. 37. ab omni tallagio ita quod nihil ab eis exigatur vel capiatur nisi servitium suum liberum quod de jure nobis facere debent facere tenentur prout statutum est eis illis à nobis concessum jure haereditario in perpetuum per commune concilium totius regni nostri praedicti The second Branch is Statuimus etiam firmiter praecipimus p. 39. ut omnes liberi homines totius regni sint fratres conjurati ad Monarchiam nostram regnum nostrum pro viribus suis facultatibus contra inimicos pro posse suo defendendum viriliter servandum pacem dignitatem Coronae nostrae integram observandam ad judicium rectum justum constanter omnibus modis pro posse suo sine dolo sine dilatione faciendum This Author would gather from hence Against Mr. Petyt p. 39. that all Free-men were Tenants in Military Service that these were the only legal men c. Whereas if the Division had not made a Difference in his partial Judgment he might have found all this to have been fully contained in one of the Laws of the Confessor where they receive another kind of Explanation Et ut verum fatear habent etiam Aldermanni in Civitatibus regni hujus Leg. Ed. de Grâ—ve in Ballivis suis in Burgis clausis muro Vallatis in Castellis eandem dignitatem potestatem modum qualem habent praepositi Hundredorum Wapentachiorum in Ballivis suis sub Vicecomite Regis per universum regnum Debent enim Leges Libertates Jura pacem Regis justas consuetudines regni antiquas à bonis praedecessoribus approbaâ—â—s inviolabiliter sine dolo sine dilatione modis omnibus pro posse suo servare cum aliquid verò inopinatum vel dubium vel malum contra regnum vel contra Coronam Domini Regis forte in Ballivis suis subitò emerserit statim pulsatis campanis quod Anglicè vocant MOTBEL convocare omnes universos quod Anglicè dicunt Folcmote Vocatio Congregatio populorum gentium omnium qui ibi omnes convenire debent universi qui sub protectione pace Domini Regis degunt consistunt in regno predicto ibi providere debent indemnitatibus Coronae regni hujus per Commune Concilium ibi providendum est ad insolentiam malefactorum reprimendam ad utilitatem regni Statutum est enim quod ibi debent populi omnes gentes universae singulis annis semel in anno convenire scilicet in Capite Kal. Maii se fide Sacramento non fracto ibi in unum simul confederare consolidare So William's Law sicut conjurati fratres ad defendendum regnum contra alienigenas contra inimicos una cum Domino suo rege terras honores illius omni fidelitate cum eo servare quod illi ut Domino suo regi intra extra regnum universum Britanniae fideles esse volunt Ita debent facere omnes Principes Comites simul jurare coram Episcopis regni in Folcmote similiter omnes Proceres regni Milites liberi homines universi totius regni Britanniae facere debent in pleno Folcmote fidelitatem Domino Regi ut praedictum est coram Episcopis regni c. Debent etiam universi liberi homines totius regni juxta facultates suas possessiones juxta Catalla sua secundum feodum suum secundum tenementa sua arma habere illa semper prompta conservare ad tuitionem regni servitium Dominorum suorum juxta praeceptum Regis explendum peragendum And to speak the Truth the Aldermen have also in the Cities of this Kingdom within their Bailiwicks and in Burroughs inclosed and walled about and in Castles the same Dignity Power and Manner under the King's Sheriff throughout the Realm for they ought inviolably and without Fraud or Delay by all means to their Power to keep the Laws Liberties Rights Peace of the King and the just and ancient Customs of the Kingdom approved of by their good Predecessors But when any thing unexpected or doubtful happens to fall out of a sudden within their Bailiwicks against the Kingdom or against the Crown of our Lord the King they ought presently by ringing of the Bells which in English they call MOTBEL to call together all the People which in English is called the Folkmote that is the calling together and Assembly of all the People and Countries because all ought to meet there and all who live under the Protection and Peace of
ought to remember that the very Law whereby he would prove all the Free-men of the Kingdom to have been Tenants by Knights Service was in Confirmation of the Confessor's Laws and that granted to those who had lived under them and knew the Benefit of defending themselves and their Properties in the Great Councils and the Nation too there or by their Arms elsewhere without out trusting the manage of all to such Thayns as held immediately of the King Nor were they then likely to quit their former Advantages when as appears by the Story they were in a probable Condition of gaining more if they would for the English had got together by the Encouragement of Abbot Fretherick Exercitum numerosum fortissimum a numerous and most potent Army and in their Head was he who was the only Heir to the Crown and that a Title above the Confessor Upon this Prudentiâ feliciter eruditus having the Happiness to follow his Interest and comply with the Occasion he granted St. Edward's Laws with some Additions indeed but not with such as would defeat the whole And I affirm it that though in his Additions he provides about the Tenures or other matters of his then or future Tenants yet there is not any thing which creates a feud over the whole Kingdom Indeed the Dr. who understands not for it was beyond his Sphere that Service laid either by Common or Statute Law upon all free Lands such as before the Conquest and since the Burgh-bote the Bridge-bote and the Expeditio the last of which we have been disputing of under the Law of Arms is a Service but no Tenure Tit. Hon. as Mr. Selden has rightly shewn would infer that because the Conquerour in Affirmance of St. Edward's Laws enacts That they shall for ever or Jure haereditario enjoy their Lands free from all Manner of Charge but their free Services which indeed tho it implies not his raising Tenures universally does not exclude such as himself had raised that therefore all were made Feudal Tenants Quod restat probandum SECT 2. FOR King John's Charter If he thinks fit to read over the Book that treats of it Against Jan. c. p. 47. once more and to observe it well and compare it with what he hath said he will find it anticipated and answered and if he hath not a mighty strong Fancy of his own Abilities must be ashamed of his impertinent Rhapsodies Since 't is there abundantly proved that though that King's Charter seems to some Understandings to make express provision for the summoning the Great Council of the Nation yet it expressly provided for the summoning the lesser Council the more ordinary Curia Regis only the Tenants which were Members of it standing in need of a Law to relieve them from some Hardships they were under Whereas the constant practise from the Reign of William the First inclusively downwards evinces that they who composed the Great Council had maintain'd their Right ad habendum commune Concilium regni uninterrupted for a general proof of which the Authority of Bracton was us'd which shews that besides such Payments as lay upon the Kings Tenants in Capite or had their Rise from Custom there were other introduc'd by the Common Consent of the whole Kingdom whence 't is easie to conclude that King John's Charter does not exhibit that is prrticularly set forth the full form of our English great and most general Councils in those days Jani c. p 1. Though there is a general Reference to all the constituent parts of those August Assemblies and to be sure nothing to prove that Tenants in Capite were the only Members of them yet what others have thereby Right ad habendum Commune Consilium Regni is not exprest how strongly soever it may be imply'd from the words even without the Interpretation of practise That others had Right is undeniable from the words and 't is as clear from practise who those others were and whether or no all the Members of the great Councils of the Kingdom or even all such as were Tenants in Capite came to Council in Person either upon general or special Summons as such Tenants did to the Conventions for matters of their Tenure is not mentioned but left to that ancient Course and Right which the Practice or Fact explains Tho this last be barely of the manner of Summons yet it shews that the manner is mentioned only in Relation to the form of an ordinary Curia Regis as I shew the Council of Tenants to have been The words upon which our Dispute is are these Nullum Scutagium vel auxilium Mat. Paris fol. 257. ponam in Regno nostro nisi per Commune Consilium regni nostri nisi ad Corpus nostrum redimendum ad primogenitum filium nostrum militem faciendum ad primogenitam filiam nostram semel maritandam Et ad hoc non fiet nisi rationabile auxilium Simili modo fiat de auxiliis de Civitate Londinensi Civitas Londoniensis habeat omnes antiquas Libertates Liberas consuetudines suas tam per terras quum per aquas Praeterea volumus concedimus quod omnes aliae Civitates Burgi Villae Barones de quinque portubus omnes portus habeant omnes Libertates omnes liberas consuetudines suas ad habendum Commune Concilium Regni de auxiliis assidendis aliter quam in Tribus casibus praedictis de Scutagiis assidendis submoneri faciemus Archiepiscopos Episcopos Abbates Comites majores Barones Regni sigillatim per literas nostras praeterea faciemus submoneri in generali per Vicecomites Ballivos nostros omnes alios qui in Capite tenent de nobis ad certum diem scilicet ad terminum quadraginta dierum ad minus ad certum locum in omnibus literis submonitionis illius causam submonitionis illius exponemus sic factâ submonitione negotium procedat ad diem assignatum secundum Consilium eorum qui praesentes fuerint quamvis non omnes submoniti venerint My Inference from hence as I find Et de Scutagiis assidendis divided in a distinct period from what went before the Dr. how foul soever his Reflection of New-face-Maker is Against Jani c. p. 3. has render'd not unfairly viz. That the City of London all Cities Burgs Parishes or Townships that is the Uillani their Inhabitants the Baroons of Free-men of the five Ports and all Ports should amongst other free Customs enjoy their Right of being of or constituting the Common Council of the Kingdom And that this reading and my Deductions from it are not so far remote from Reason and Sense Against Jani c. p. 60. that no man but my self could ever have thought of them appears in that he or they who Midwiv'd into the World the spurious Glossary 2 part of the Glos. use some Artifice to keep them
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
soever you read it under the Liberties and free Customs will be comprehended their whole Interest in the Legislature whereas otherwise according to this Charter of all their Liberties the King 's Great Council had then only Power to raise Taxes though we find that all along they advis'd de arduis negotiis regni and consented to what passed into a Law Wherefore Against Jan. c. p. 13. ' t is strange there should not have been the same care taken that they might have thier Rights in Council setled as well as their Summons to it but if this Charter setled no other Right than this of granting Taxes Quere What other power the Great Councils have now by our Author's Principles For admit that by the New Government which he says was fram'd and set up in the 49th of Hen. 3. a Right of coming to the Great Council was giv'n to a body of men who before that had none yet there was no additional power given to the Council it self that he or any man can shew Because I would encounter the whole Force which they raise by colour of this Charter I address'd my self chiefly to the proving that admitting that Et ad habendum commune consilium Regni aliter quam ought to be joyn'd as of the same period with de Scutagiis assidendis 't will not make for the purpose of them that urge it being upon strict Inquiry it cannot be thought to extend farther than to such matters as concern'd Tenants in Chief only That this must be thus confin'd is prov'd I. Because there were Majores Barones not excluded by this Charter and so their ancient Right continued tho they are not within the meaning of that part he insists upon for this is only of Tenants in Capite that is such as were subject to the Feudal Law The Earl of Chester for instance was not under it as Earl of Chester Wardship was a necessary Appendix to that Tenure but even the Tenants within that County though holding other Lands of the King by Knights Service were however out of the King's Wardship much more the Count Palatine And surely no body before the Dr. ever took him for a Feudal Tenant by reason of the County of Chester though he might be oblig'd to attend in the Wars and pay Escuage in case of Failure for other Lands held in Chief in other Counties 2. There were others came and upon other occasions than what are here mentioned as Falcatius de Brent who was to come even without forty days notice which was required in the Case here and whereas giving Advice in great Affairs and the making of Laws were transacted in the Great Councils no such thing is mention'd in this 3. We have the Resolution of a whole Parliament the 40th of Ed. 3. That the Common Council of the Kingdom of Tenants in Chief was not the Great Council of the Kingdom for that King John resigned his Crown in the first Council but as they declare not in the last and this the very Circumstances attending the Resignation evince 4. If the opposite Doctrine be true then all the dignified and inferiour Clergy which did not hold in Capite Abbots Priors c. were excluded 5. This must needs be no more than a Common Council of the Kingdom for assessing Escuage and such other Aid as lay upon Tenants in Capite only because Tenants only stood in need of Relief from this Charter they only being concerned in the three things reserved to the King or in the Additions to them none other being charged in that kind without more general Consent and more than Tenants being Parties to the Grant Besides not only the advances upon Tenants Services but the ordinary Incidents were called Auxilia as well as those others which according to Bracton were not called Services nor came from Custom but were only in case of Necessity or when the King met his People as Hydage Corage and Carvage and many other things brought in by the common Consent of the whole Kingdom Now where the King reserves Incidents to Tenure only 't is to be supposed that the Reservation is out of the thing before mentioned and so that must be Services because of Tenure none but Tenants being named whereas when others are named we may well suppose the Aids given by others too to be intended 6. We may here divide the benefit to each sort of Tenant in particular I. As the Tenants by Socage Tenure only were talliable and that us'd to be without their own Consent here they have a Consent given them 2. As Tenants by Knights Service though not talliable yet had hardship in the Obligation to sudden Attendance convenient Notice is given and it should seem that the want of this for the assessing of Escuage was their only grievance proper to be redrest for their Attendance in the Wars was to be govern'd by Necessity and as a Court of Justice there was no need of them 7. There is a Difference to be observed all along between the Great Council and such an one as is mentioned in this Charter I. For the Persons composing the one and the other 2. The matters of which they treated And 3. the times of holding them For the Great Councils by his own way of arguing there was at least one Great Council in the Reign of William the First where were more than Tenants in Chief The Tenants in Chief he supposes to have been only the Normans and Foreigners who were Enemies to the English Laws and the only great men by his Rule wherefore if the English Laws were retained at the Petition of any great body of men here they must be populus Jani Anglorum facies nova p. 55. inferiour People of England This was Ad preces Communitatis Anglorum Universi compatriotae regni petition'd as appears in the very Body of the Laws then received but these as despicable as they were had got together a numerous and mighty Army of which they made Edgar Etheling General these are all called Primates mitius coepit agere cum primatibus regni To shew that 't was matter of Council 't was argued Pro and Con at Berkhamsted Selden ad ead fo 171. where post multas disceptationes after many Disputes the English Laws were setled I need urge no more in this Reign except that which he hath yielded to my hand in effect viz. that all the Free-holders of the several Counties of England met this King in a Great Council at Salisbury For he himself tells us that all the Free-men of the Kingdom held by Knights Service and here were all the Knights so more than Tenants in Capite and all the Free-holders too as they were Knights all holding by Military Service But if there were other Freemen such as held in Free and common Socage qui militare servitium debebant who ow'd Military Service for the defence of the Kingdom though they held not by it why were
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
Council of the Nation p. 13. 'T is strange there should not have been the same Care taken that they might be summoned as well as the Tenants in Capite Certainly they came not to them by instinct nor is it scarce probable that they would leave their Ploughs and Country Business to travel from one remote part of England to another to these great Councils which seldome continued above three or four days if they had had Right so to do This is as trifling as the rest for if the Common Law took care for their Coming and for their general Summons nor had their Right been denied them there was no need of special Provision by that Charter Upon my seventh Head of the Distinction between the Great Council and the Curia pro more he attacks me very vigorously and having before tax'd me with new modelling the Government wild p. 1. extravagant and confus'd Notions unintelligible Vagaries p. 47. impertinent Rhapsodies p. 32. 41. 53. 62. 63. perverse Interpretations Ignorance and Confidence to say no more monstrous abusing of History cheating and abusing my Readers and wresting Records and Histories with a long Et caetera out comes this gentle Rebuke And indeed as he deals with Sir Henry Spelman's Glossary p. 96. in saying the second part was not his own so doth he shuffle off all Records and Histories which are directly against him by saying the Curia or Great Councils there mention'd were but an ordinary Curia or Council and such as in his own Judgment contain any thing that makes for him The Councils there spoken of are Great and General Councils to be sure 'T is doubtless an hainous thing to call that a Great or General Council which is so in my own Judgment But if I prove and that out of himself too that there came more to the King 's Great Councils than his Tenants in Chief and Officers such as compos'd the Curia held pro more thrice a year surely it lies upon him to shew that at any one Council where more than Tenants were charged Tenants only were present And I affirm that he neither has nor can produce one Authority which upon Examination can signifie any thing And to retort his last Charge as he deals with Sir Henry Spelman in putting upon him his own or his Friends Sense So he doth shuffle over Records which are directly against him and supplants them by History seemingly for him And if the last contain any thing which in his own Judgment makes for him the Council there spoken of is a Great and General Council of Tenants in Chief only to be sure though the Record mention more Our Author says of the Curia which I contend to have been pro more or ordinary If he can make the Court holden coram Rege Consilio before the King and Councel which he hath made his Instance for his ordinary Court and be the same with the Common Council of the Kingdom establish'd by that Charter meaning King John ' s he gains the point but if it cannot be done he may very well blush at his own Confidence to say no more Truely I should rather blush at the want of Sense in that Paragraph if it were mine for I cannot well answer for making the Court and be the same But since he has informed me where the point lies I can easily gain it by proving that the Court holden coram Rege Consilio became the Court of which our Dispute is as it had the same Power whether held by the same persons or at the same times is not material so that it be the Kings Curia or Magnum Concilium as the Court held pro more was In Order to the clearing this he may please to understand that the King's Court had the only Cognizance of the Kings Grants or Charters agreeable to which Bracton lib. 2. cap. 16. p. 34. Bracton says De chartis verò regiis factis regum non debent nec possunt justiciarii nec privatae personae disputare nec etiam si in illâ Dubitatio oriatur possunt eam interpretari et in dubiis et obscuris vel si aliqua dictio duos contineat intellectus Domini Regis erit expectanda interpretatio et voluntas cum ejus sit interpretari cujus est concedere et etiam si omnino sit falsa propter rasuram vel quia fortè signum appositum est adulterinum melius et tutius est quod coram ipso Rege procedatur ad judicium Curia coram Rege Cons. But of the King's Charters and of the Deeds of Kings the Justices or private Persons neither ought nor can dispute nor if any doubt arises therein can they interpret it and in doubtful and obscure things or if any word contain two meanings the King's Interpretation and Will is to be expected since it belongs to him to interpret who made the Grant and also if it be wholly false by reason of Rasure or because perhaps a counterfeit Seal is put to it 't is best and safest that Judgment should be proceeded to before the King himself Here was a 〈…〉 Court for these matters held before the King that is before him and his Council And thus 18 Ed. 1. The Bishop of Carlisle produces the Charter of Richard the First Ryley placita Parl. f. 20. about the Advowson of the Church of Burgh this was before Thomas de Weyland and his Companions Justices of the King's Bench but because they did not do them Right he Petitions that the King would do him Remedy and Grace upon it because none but Kings themselves ought to judge of Kings Charters This is received before the King and his Counsel in Parliament and because there was need of a Certificate to be made in the Case 't is referred to the next Parliament that is when it relates to any Judgment to be given Counsel then to sit But the Business as I find many of the like kind upon the Parliament Rolls was properly brought before the Kings Counsel in Parliament who Jani Anglorum facies nova p. 190. as I before observed succeeded into the places of the Tenants in the Curia and indeed I see not what other Account can be given of the Lords Jurisdiction As this Counsel acted in Parliament with the same Power which the Tenants had exercised before so we find them sometimes acting like the Tenants in the Curia in the Intervals of Parliament as in the 33. of Ed. 1. after the Parliament was dissolved and all sent home Ryley f. 241. f. 256. but the Bishops Earls and Barons Justices and others of the Kings Counsel Several things are transacted coram toto Consilio and Judgments given secundum consuetudinem Curiae Indeed we often find that when Matters of Publick Concern or which as they say concern'd the Treaty came before them they never undertook to determine upon them but left them to the next
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
Then by common Consent there were elected on behalf of the Clergy the Elect of Canterbury the Bishop of Lincoln Winchester and Worcester On behalf of the Laity Earl Richard the King's Brother Earl Bigod Earl of Leicester Simon Montfort and Earl William Marshal For the Barons Richard Montfitchet and John Baliol and the Abbots of Bury and Ramsey that what they twelve should resolve on should be recited in Common and that no form should be shewn to the King by Authority of the twelve which had not the Common Assent of all Here is so manifest a Distinction between Lords and Commons Members of the Great Council that I dare say no man but this Dr. could have united them into one Order as he does all the Laity But here 't is obvious that when the Lay Lords Earls and Barons were all together and ask'd by the dignify'd Clergy then present whether they would agree with them The Lay Lords answered for themselves that they would do nothing without the Common Vniversity which could not possibly be only the Lords Spiritual and Temporal Let our Dr. answer this to save his Credit they referring to others distinct from both and if the Temporal Lords had concurr'd here had been the Consent of the Common Vniversity of Lords if we may so call it But besides the Consent of all the Lords there was requir'd the Consent of another body of men and these must be the Commons which might well be of Clergy and Laity wherefore here was Clerus and Populus Against Mr. Petyt p. 56. and that such as were inferiour to Barons Tenants in Capite and Noblemen that is to such as now are acknowledged to be the only Nobles But for a full Proof both of our whole Cause and of his excellent Faculty Faculty of answering himself Against Mr. Petyt p. 183. Pat. 8. 9. Joh. n. 3. as long since as King John's Reign there were present at Council Vniversitas Comitum Baronum Militum aliorum fidelium alii fideles following the Milites he yields that therefore they were the King 's ordinary Subjects or other Free Tenants and not Tenants in Capite Thus he stifles his thin Notion with a Record and yet pretends by his Chymical Art to bring it to Life again with the Authority of an Historian who though much to be rely'd on is surely of less Authority than a Record Well but what says the Historian Do's he say it was not so as the Record has it No but expresses himself in general Terms and tells us that there were the Comites Barones Milites and others qui ei servitium militare debebant Perhaps he will smile at my saying 't is in general Terms when he is so particular But with his good Leave he is not clear whether 't was Service because of the Kingdom which all men were to perform in Proportion even to their personal Estates or because of Tenure Indeed he by no means seems to incline to the last it being qui debebant Servitium militare not qui tenebant per Servitium militare Besides all that so held had been Milites but here was another sort of men Yet p. 184. the Dr. very comically tells us Here we find others that ow'd the King Military Service and so were Tenants in Capite besides Earls Barons and Knights The place is plain yes 't is very plain that the Dr. says so and as plain that few men else would have spoke so Pray Good Sir Do you know the meaning of Tenure in Capite by Knights Service Where lyes the difference between holding in Capite of the King by Knights Service and owing the King Military Service as Tenant in Capite If there be no Difference how comes it to pass that one who held in Capite by Knights Service ib p. 39 was no Knight tho Tenants in Military Service in those times were the only Great Freemen Glos. p. 10. as that Service was the only free Service although a Bond-man might hold by free Services and yet be a Bond-man Do not you your self own that all the legalmen or Jurors that held in Military Service were Milites in referring to Glanvil where are some Writs to summon Juries of Knights only whence you would infer that the Legales homines mention'd by other Writs p. 40. were all Knights Were they Bondmen holding in Military Service that were the Fideles at Council But that the Plebs Jan. p. 265. the Ingenuitas Regni or liberi legales homines as Sir H. Spelman tells us the Word Ingenuus has anciently been us'd were Members of the Great Councils notwithstanding the Doctors Sense 2 part of the Glos. Jan. p. 266. and the Assertion put upon Sir Hen. that amongst the several Councils which he had read of he found nothing of the Plebs The Dr. may please to consider of these two following Authorities Quomodo Nigellus Episcopus appellatus est ad Roman Sedit autem Rex Stephanus in sede regni sui siluit terra in conspectu ejus veniens Londonias que caput est Angliae occurrerunt ei pacifice suscipientes illum cum magno honore ibi concilio adunato Cleri populi Episcoporum atque Abbatum Monachorum Clericorum Chronicon Eliense penes Dr. Gale Plebisque infinite multitudinis presidente Romanae sedis legato fratre Domini Regis Henrico Wintoniensi Episcopo Theobaldo quem nuper Archiepiscopum Cancie fecerat de statu Regni cum illis tractavit ut in hostes pacis patriae Sententiam Ecclesiasticae severitatis promulgarent indixit cumque invicem causae ab alterutro agerentur prior quidam vital nomine Conquestus est coram omnibus quod Dominus Eliensis Episcopus eum non judicali ordine de sua Ecclesia expulserit huic per omnia ille legatus favebat suffragari voluit cujus machinatione quidam magnae Auctoritatis Prudentiae viri adversus dominum Nigellum Episcopum parati insurrexerunt illum ante conspectum Domini Papae appellaverunt sinistre objicientes plurima maxime quod seditionem in ipso concitaverat regno bona Ecclesiae suae in milites dissipaverat aliaque ei convicia blasphemantes improporabant Anno 1136. Edicto per Angliam pro mulgato summos ecclesiarum ductores cum primis populi ad Concilium Londomas conscivit illis quoque quasi in unam sentinam confluentibus ecclesiarumque columnis sedendi ordine dispositis vulgo etiam confuse pexmixtim ut solet ubique se ingerente SECT 2. ANY one that reads our Author's book gelt from his indecent Reflections would think him to mean very honestly and that he urg'd nothing but with design of being confuted thus when he produces Mr. Camden's Authority for the new Government and charges me with a designed Omission of Eis one would imagine he thereby intended to put an Argument into my Mouth for the Rights of inferiour Proprietors Statuit
concerning taking of Salmons a Record tells us was Rot. Pat. 14. Ed. 2. De inquirend de Salmonibus captis in Com. Glou. contra statutum Statutum de Communi Consilio Regni ordain'd of the Common Council oâ— the Kingdom The Historian expresseth this Parliament thus His temporibus convocatis â—â—tentioribus terrae suae apud Westmonasterium condidit Rex statuta quae Westmonasterii secundi dicuntur Ma. West fo 412. l. 35. here the more powerful men of the Land were called or summoned to that Parliament not a Syllablâ— of the Word Communitas or Commons but the Dr. will not deny but that the Commons were part thereof for the 13â— of E. 1. was about 21 years after 49. H. 3. Anno 27. E. 1. Rast. Stat. fo 47. The Statute of Fines was ordained De Communi Concilio regni yet no mention is made in the body Rot. Claus. 8 E. 2. m. 8. of the Assent of Lords or Commons notwithstanding they gave their Assent thereto otherwise it could not have been a Law oâ— Statute Rot. Parl. 15 E. 3. n. 50. dors for the Parliament of 15 E. 3 tells us that the Statute of Magna Charta and other Statutes were made by King Peers and Commons and so this 27 E. 1. And there are Writs of Summons Rot. Claus. 27 E. 1. m. 9. dorso de Parliamento tenendo to this Parliament which Mat. Ma. West fo 431. l. 48. Westm. more Historicâ— thus generally delivers Dominica secunda quadragâ—mae citatis magnatibus regni apud Westmonasterium no Commons particulariz'd Anno 28 E. 1. Rast. Stat. fo 49. The Statute called Articuli 〈◊〉 Chartas Rot. Pat. 7 E. 3. pars prim m. 21. de inquirend de diversis provisoribus Hospitii Regis as a Writ upon the 2. Chapâ— concerning Purveyors proves was orâ—â—ned de Communi Concilio regni by the â—mmon Council of the Kingdom The Dr's * * * Mat. West fo 433. l. 36 Historian mentioning this â—â—rliament writes in Octabis Sancti Hillatenente rege Parliamentum suum Lincolâ— Conquesti sunt Comites Barones not a â—â—rd of the Commons yet most certain â—s they were also there as is evident by 〈◊〉 Writ of Summons and expences to that â—â—rliament Mr. Pryn 4th part of Parliamentary Writs p. 12 13. 16. Rot. Claus. 29. E. 1. m. 17. dorso and the Sheriff of Kent's being â—mmanded to levy the wages for Waresius Valoignes and Henry de Appletrefield â—ights of the County nuper ad nos de praeâ—to nostro usque Lincolniam pro Comitatu â—â—dicto venientibus ibidem nobiscum super versis negotiis nos populum regni nostri â—â—ialiter tangentibus tractatur ' to treat with â—e King upon several Affairs especially â—uching the King and People The Statute of 1 E. 3. was de Communi â—â—ncilio regni Concordatum Statutum in â—â—rliamento apud Westm. Rast. Stat. 1 fo 64. agreed and â—â—acted by the Common Council of the â—â—ngdom Rot. Pat. 1. E. 3. m. 20. in a Parliament at Westminster 〈◊〉 Rot. Claus. 2 E. 3. m. 20. as several other Records ennumerate â—he several parts thereof Per nos Praeâ—â—os Comites Barones communitatem regni ibidem existentes By the King and Prelates Earls Barons and the Commâ—â—nalty of the Realm there being Now what saith the Historian Wâ— thus he expresseth this Parliament Walsingham f. 126. l. 28. 29. Pâ—â—natale Regina cum filio suo ante festum â—â—phaniae venit Londonias ubi cum magno gâ—â—dio muneribus est suscepta convenit eâ—â—illuc tota Regni Nobilitas citata per prius parliamentum tenendum ibidem in Crastâ—â—dicti festi But to press the Dr. with full weighâ— shall afford him some presidents of â—â—dresses to the whole representative Body the Commons of England as to Wiâ— which took in all the Members before 〈◊〉 suppos'd Conquest or Nobles which 〈◊〉 as comprehensive after 1. Tressages Communes A les Tressages Communes de cest â—â—sent Parlement Rot. Parl. 11 H. 4. n. 36. Pur Johan Bartrum As Tressages Communes Rot. Parl. 13 H. 4. n. 23. Pur Labbe de Furneys c. que pâ—â— considerer les premisses prier à nostrâ—â— Sâ—nieur le Roy de grantier per Auctorite Parlement c. In the like form Pur Tho. Chaucer Esq 2 H. 5. n. 18. c. Peticion pur Mairs Conestables la Compaigne de â—â—â—staple a Caleys directed as aforesaid As Tressages Communes supplie huâ—â—â—ment Lucie que fuist la feme Esmond â—â—gairs Count de Kent Rot. Parl. 2 H. 5. n. 47. Rot. Parl 9 H. 5. n. 19. Que pleise a voz Tressages discretions â—â—â—siderer Pur le Countess de Marche Rot. Parl. 3 H. 6. n. 29. Ibid. n. 32. pleise a Tresâ—es Communes Pur John Lescrop Chivaler in like manner Treshonorables et Tressages Communes Labbe de Newenham against Monsieur â—â—lip Courtnay Chivaler Rot. Parl. 4 H. 4. n. 12. A les Treshonourables Tressages â—ommunes de cest present Parlement supâ—â— treshumblement c. Upon which petiâ—â—on and others assented to after deliâ—ered to the King and Lords the Abbot â—as relieved and Sir Philip was adjudg'd â—nd awarded to the Tower As Treshonourables Rot. Parl. 2 H. 5. n. 16. Tressages Comâ—unes c. Pleise a vostre Tressages discretions de â—nsiderer auxi prier nostre Seignieur leâ—oy Pur Thomas Salman de grantier ordeigner en son dit Parâ—ment peradvys assent de toutz les Seigâ—eurs Espirituelx Temporelx c. Qua quidem petitione coram Domino Reâ—â— Dominis Spiritualibus Temporaliâ—â— existentibus lectâ materiâ in eadem â—â—nius intellectâ idem Dominus Rex de asâ—â—nsu Dominorum predictorum ad requiâ—ionem Communitatis predicte c. As Tressages Rot. Parl. 8 H. 6. n. 51. Treshonorables Commons de cest present Parlement monstrent les Mair Aldermans Communes de la 〈◊〉 tee de Londres que please avoz Tressagâ— Tresprudez discretions considerer 〈◊〉 As Tresgratious Rot. Parl. 11 H. 4. n. 35. Pur Monsieur Johan Trebeel Chivaler Tressages Sires 〈◊〉 valers Communes de cest present Parlâ—â—ment supplie treshumblement c. Quele pâ—tition 〈◊〉 devant le Roy les Seignieurs â— Parlement en entendue le dit Johaâ— amesme en plein Parlement Rot. Parl. 4 H. 5. n. 17. c. pur Johâ— Alleyn autres a a a Rot. Parl. 4 H. 4. n. 19 Pur Monsieur Thomas Pomeroy Chivaler Ales Treshonourables Tressagâ— Communes de cest present Parlement 3. Honourables Tressages Communâ— b b b Rot. Parl. 3 H. 5. pars 1. n. 7. Pur Henry Barton As Honourable Tressages Seâ—nieurs les Communes de cest present Parlâ—ment c. c c c Rot. Parl. 3. H. 5. pars 1. n. 9. Gentz de la Villae de Sondwich As
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.
Petyt p. 228. nor earlier Commencement than the Commons What King Henry a little before his death begun that is to call such Earls and Barons ib. p. 228. quos dignatus est such as he pleased Edward the First and his Successors constantly observed This was the Constitution of the House of Lords Viz. The rebellious Barons who framed the new Government p. 210. the Lords made the Commons and the King made the Lords The Kings follow'd Montfort's Pattern Against Mr. Petyt p. 229. for calling the Commons to Parliament Which yet was not Montfort's alone for they the rebellious Barons fram'd and set up the new Government p. 210. After which they sent out Writs in the King's Name to summon a Parliament with Commons as well as Noblemen And yet Camden cited p. 226. Cotton cited p. 228. according to two Authors whom I receive H. 3. set the Pattern who after the Victory at Evesham wisely began in This what his Successors fortunately finish'd And the King's beginning this was a Reason why those Kings follow'd Montfort's Pattern Though 't was by the Power of Montfort alone that is of him and the other Barons that the Commons were let in to the great Councils to lessen the strength and power of the great Lords that is their own strength and power yet it was by the King's Authority though 't was before the Battel of Evesham when Montfort prevail'd yet it was done after when the King recovered the Regality I shall come now to the particular consideration of Jani Anglorum facies nova The Author of which sufficiently shews his fantasticalness in the Title of his Book Jani Anglorum facies nova What because his Shreds of Antiquity are thought doubtful by some taken in one sense by others in another do's he therefore make Janus bifrons of his Composition He had as good call it a Spread Eagle which looks both wayes too I am sure it suits better with my Book which is an high Flyer His Allusion to Selden's Jani Anglorum facies altera will not justifie him since that Antiquary was chiefly conversant in Popular and Lucrative Law Besides the Title imports the Novelty of his Opinion though perhaps he would have us believe that he puts a New Face upon those musty old things which have been thought to look with a different Aspect Nor can he shrowd himself under my Title for mine is an old Face which has honourable Scars and Flaws in it and a Professor's Aspect And they understand not Railery and Figure who observe not how I expose him by the Allusion He will have it and brings many Arguments Jan. Angl. c. p. 22. amongst which the Judgment of a whole Parliament of that famous King Ed. 3. but that is not Infallible that the Common Council of the Kingdom in King John's Charter is onely a Council for Scutage and Aid granted by Tenants in Capite Whereas Aid sometimes signifies such as to be sure is granted by the greatest Council and therefore does alwayes Against Jani c. p. 10 11 12. Farther What need was there to have the Cause of Summons declared if it were onely about Aids and Escuage or other ordinary business of course though indeed whether it was for Aids or other Business might not be known without this Declaration ib. p. 12. Lastly If all Proprietors were Members of the Great General Council 't is strange there should not have been the same care taken that they might be summoned Alas What signifies the Provision of the Common Law But he brings an Argument from the Earl of Chester's being a Count Palatine Against Jan. c. p. 20. and not subject to the Feudal Law whereas he was a feudal Tenant Though Bracton lib. 3. ca. 8. I must confess the old Dotard Bracton sayes Comites Paleys Counts Palatine have Regal Jurisdiction salvo dominio Domino Regi sicut Principi saving to the King his Dominion as Prince not as Lord of the Feud Besides in one of the Quotations which he brings to prove that the Earl of Chester however came to Parliament Against Jan. c. p. 17. he leaves out Laici because it manifestly destroys his Whimsey for it shews that all the Laity were Tenants in Chief in that they as a great Council say that the Tenants in Chief did owe no Service But he has another fantastical Notion that this Council in King John's Charter was an ordinary Court. Upon which he has these Arguments which I put among his Unintelligible Vagaries that there was a Court held thrice a year Against Jan. p. 26. which treated onely of Matters of ordinary Justice Vid. Jan. c. unless when 't was united with the Great Council And in these two Senses taken together was an Ordinary Court that the Tenants were obliged by their Tenure to be there Bract. l. 2. c. 16. p. 37. Consensu communi totius Regni introducta But at the Great Councils were more for which he cites Bracton who speaks of several Vnintelligible Businesses for which the Common Consent of the Kingdom was always required That to King John's Charter the Liberi Homines totius Regni were Parties Against Jan. c. p. 5. whereas in truth the Great Charters were onely the Petitions of the People drawn into the form of Charters as Statutes now are upon the Petitions of the Commons drawn into the Form of Statutes and pass'd by the Concurrence of the King and Lords Since I am fallen into the Learning of Charters I must inform you that though the Charter of H. 3. has the inspeximus of Edward the First and is enrolled in the 25th of his Reign in ipsissimis verbis when 't is confirmed 〈…〉 in full Parliament Per commune assent de tut le Royaume Rot. Stat. 25 Ed. 1. m. 38. to have been made by the Common Assent of all the Realm in the time of H. 3. nostre Pere meaning the Father of Edward the First and though as appears in the Statute Roll the Date and Witnesses were of the time of H. 3. yet Against Jan. c. p. 63. this Great Charter was properly the Charter of Ed. 1. or perhaps rather his Explication or Enlargement of that Charter of King John and H. 3. for we find not the Great Charter either of that or King John ' s Form in any of the Rolls until the 25th of Ed. 1. and therefore 't was impossible that any such Charter could be found in the 25th of that King though he Reign'd so long since or indeed that King John's Charter was made by him And there is Demonstration that 't was not the Charter of H. 3. in that Rot. Parl. 15. Ed. 3. N. 150. dor when 't is confirm'd in Parliament in the 15th of Edward the Third 〈…〉 〈…〉 The Great Charter and the Charter of the Forest and other Statutes made by our Sovereign Lord the King
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
common Intendment is meant of coming as Members in their own persons Against Jani p 4. and when they agreed to it which was no abridgment of their personal right they came by Representation and Election and every one was there himself virtually by his Deputy but they often met in vast bodies and in capacious places both in the Saxon times and after William the First obtained the Imperial Crown 1. If you 'l believe the Chair all this is precariously said Against Jani c. p. 89. without Foundation or Authority however 't is granted that I seem to back it with an instance where I say The whole body of Proprietors were assembled at Runemede between Stanes and Windsor at the passing of King John's Charter The Doctor refers us to p. 106. and 107. of his pretended Answer to Mr. Petyt to see what this Assembly was and of whom it consisted where he proves my Assertion being all that he there shews is that there was not time for Writs to issue to chuse any Representatives of the Commons but not a word offer'd against their being there in their own Persons having been got together expecting the Kings Answer to their Demands who appointed a meeting at Runemede Rot. Pat. 17. Joh. pars unica m. 13. n. 3. ib. m. 23. dorso The Record saith there were Comites Barones liberi homines totius regni or according to that Expounder of more fallible Record Ma. Paris Against Mr. Petyt p. 183. p. 127. in Marg. there were the Magnates which must there be meant of the Nobilitas Major unless you take them for the Kings friends only as the great men of the Kingdom elsewhere these Magnates had drawn to their side and to that treaty Vniversam fere totius Regni Nobilitatem Ma. Paris fo 244. and this Nobility was so numerous that they made a vast Army exercitum inestimabilem confecerunt and the Records not only shew that such as were but liberi homines were there and parties to the agreement being inter Regem Comites Barones liberos homines but the body of the Charter shews that Tenents by other free tenures besides Knights service were interested in it Besides this the frequent meetings in so wide a place as Runenede call'd Pratum Concilii as I observed in the same page is a strong Argument that vast bodies compos'd the great Councils in those days and why Tenents in free Socage were not Members as well as such as held of Subjects by Knights service I see no reason but wait for the Doctors In the mean while I shall present him with some other Authorities which shew that my Assertion was not precarious 2. If in the 38th of H. 3. the Commons or probi homines were Members of the Great Council by Representatives of their own choice and degree there being besides all the Tenents in Capite two chose for every County Jani c. p. 244. Vide amongst other Authorities Vice omnium Singulorum and yet such came in their own persons both before and after the making of King John's Charter since which till the 48th or 49th of H. 3. no alteration in the way Jani p. 51. 57 58 59 60 61. 66. 214. 248. or right of coming is supposed then it follows that Representations were brought in when the Commons who might have come in their own persons agree to it and there being of the Councils before the Norman times and then Barones populus 't is not to be doubted but that they came in their Persons if they would both in the Saxon and Norman times especially since William the First did but confirm the Law of the Confessor concerning the power of the Great Council Rex debet omnia ritâ— facere in regno per judicium Procerum Regni Leges Par. Ed. in words that shew'd that all the Members were in those ages stiled Peers such as might come in person and that inferior Proprietors were Members the Law of the great Folâ—mote then received proves beyond all dispute 3. If besides Barones Jani c. p. 241. and Milites we find Libere tenentes or Fideles in the account of Great Councils before 49 H. 3. we are to suppose Against Mr. Petyt p. 112. even without Consideration of the Capacious places of their Assembly The free Tenents in Scotland and the Possessionati in Poland us'd to be Members of their great Councils without Representation and the multitudes there that such Proprietors of Land as would came personally till a Law or common practice to the contrary be shewn it being according to their natural right and the natural import of the words besides the Doctor does not allow of Representations except the Tenents in Capite who came without Election Jani c. p. 248. p. 66. were Representatives of the rest 4. If King John's Charter does not exhibit the full form of our English Great Jani c. throughout and most general Councils in those days but by continuing the rights of every particular place leaves room for Proprietors of Land to have been Members as well as Tenents in Capite then the libere Tenentes which many Records before the supposed change in the time of H. 3. mention as Members of the Great Councils were not Tenents in Capite And as Tenents in Capite came in their own persons for matters concerning their Tenures So unless the contrary can be shewn we are to believe that the libere tenentes not holding in Capite came in like manner especially if we consider how mean were some of the Majores Barones to whom special Writs were to be directed as he that held part of the Barony of Mulgrave Communia de Term. Mich. An. 39 E. 3. Rot. 36. penes Rem R. in scaccariâ— per servitium millesimae ducentesimae partis Baroniae Nay I find Norman Darcy who indeed held several parcels of the Mannor of Darcy which seem to be by several purchases amongst other shares holding Centessimam partem Centessimae Sexagessâ—mae partis Baroniae Penes Rem Regis in scaccario de Term. Pasche 29 E. 3. Lincoln de Re. Brook tit exemption The hundreth part of the Hundred and sixtieth part of the Barony and yet that he who had only so much was Baro Major appears in that the Common Law exempted him from being of a Common Jury as holding part of a Barony Besides the Doctor yields that more than such as are expresly mention'd in the contested Clause Tenents in Military service of King John's Charter viz. of Tenents in Capite were Members of the Great Councils which he does not always confine to the great Tenents and some of these were as inconsiderable and as unfit for Counsellors as the generality of the libere Tenentes for though he in his sixteen years search Against Mr. Petyt p. 41. could find no less a part of a Knights
could bring many Arguments from the Doctor Against Mr. Petyt p. 183. 192. as besides others that the Vniversitas Militiae or 〈◊〉 militare servitium debebant that 〈◊〉 as Record explains Ma. P. aris the â—â—ideles besides Milites were Members 〈◊〉 Parliament but I may spare farther â—â—oof till he gives me fresh occasion 14. And possibly then amongst his other marvellous discoveries I may have time to animadvert a little more largely upon his fancy Against Jani c. p. 34. that the Suitors in the County Court were all Tenents in Military Service except Barons both in the Saxon and Norman times Yet this tenure came in with Will 1st by the way you must understand that the Barons were not Tenents in Military Service Against Mr. Petyt p. 31. though they held in Capite by Knights Service And that William the the First made no alteration of the Government for Tenents by Military Service were the only legal men and the only Members of the Great Counciâ— before But as Tenents in Capite Glos. p. 26. and their Tenents in Military Service were 〈◊〉 the Great Councils in Person all the Suitors at the County Court who werâ— according to the Charter of H. 1. qâ—â—liberas habent terras in each Countâ—â— respectively were there in Person aâ— Members Though not relating to the foundation of my Essay Against Mr. Petyt p. 43. according to him who makes the Question about the Conquest not directly to reach the Controuersy between us Against Jani p. 15. I may make a little â—port with his Arguing that William 1st gave whole Counties to his Followers Against Mr. Petyt p. 29. â—nder the word Comitatus that is as â—he renders it all the Lands in the Counties and yet that besides whole Counties Glos. p. 8. he gave a great proportion of Lands in them But since he taxes what I lay for the foundation of my Essay for precarious â—et's see a little whether he does not â—ender his own so where it opposes â—ine His whole Book in that respect resolves its self into these three Heads 1. That King John's Charter in affirâ—ance of the Law imposed by William â—r in force before declares that the Tenents in Capite were the only Members of the General Council of the Kingdom 2. That from thence to the 49 H. 3. the practice or fact was for Tenents only 〈◊〉 compose the Great or General Council 3. That none but Tenents in Capite were Nobles 1. If he himself yields that tiâ— King John's Charter there was no such Council as one made up only of Tenent in Capite he thereby renders all undeâ— this head precarious but this he does iâ— two places at least One where hâ— urges that if the Curia Regis Ordinaria which I say was the Court of the King Tenents Against Jani p. 46. 47. and Officers exclusive of others went off by reason of the Clause iâ— King John's Charter it certainly wenâ— off before it began that is such a Courâ— began not before and agreeable to this he says that after the granting of thiâ— Charter by King John there were man General and Great Councils or Colloâ—quiums summon'd by Edict according tâ— the form there prescribed that is aâ—â— he will have it after that the Tenent in Capite only were summon'd to thâ— Great Council but not before for the began this form In another place though he chargeâ— upon me what are his own words hâ— says King John resigned his Crown the 15â— ib. p. 22. 23. of May in the 14th of his Reign Thus p. 48. 49. he charges Mr. Petyt and me for averring that even Servants who are not in a legal sense people of the Kingdom were Members of the Great Council and he granted the great Charter of the Liberties three years after on the 15. of June in the 17. of his Reign and therefore could not resign it in such a Council as was Constituted three years after his Resignation And 't is a question whether he asserts not this in a third place where he affirms that before this Charter the Kingdom had been Taxt by our ancient Kings and their Privy-Council only 2. But in truth he not only yields that the Tenents in Chief were first made the General Council by King John's Charter My words are in such a Council as this here but that after that more than such were Members Jani p. 15. which is as much as to say that there was such a Council as this before p. 118. not only the Tenents in Military Service of Tenents in Chief but other ordinary Freeholders So that he submits himself to be goard by both the horns of that Dilemma inforc't in my former Treatise viz. that King John's Charter was either declarative of the Law as 't was before Against Jani p. 66. Jani p. 236. or introductive of a new Law And yields the precariousness of his own vagaries 3. But does he not own that the Notion that Tenents in Capite only were Noble is precarious Since he yields that no kind of tenure does nobilitate or so much as make a man free who was not so before according to his Blood or Extraction Glos. p. 10. Though according to this one that held of the King in Chief might have been a Subjects Villain yet none that held a certain Estate of Freehold could be a Villain because 't is contrary to the nature of a Freehold that it should be so no longer than another pleas'd that is only an Estate at will He will have it that Mr. Petyt is guilty of some horrible Design Against Mr. Petyt p. 1. from the effects of which it seems this mighty Champion is to rescue the Government And for me I am a Seducer one who would seduce unwary Readers Against Jani p. 71. a malicious insinuation as if I would wheedle to my side a party against Truth and the Government but whether he who would set aside the evidences for the Rights of the Lords and Commons or they who produce them fair and would render them unquestioned is guilty of the worst design the World will judge and I doubt not but he has at home a thousand Witnesses Conscientia millâ— testes who if he will hear their unbyast Testimonies will inform him whose are the groundless and designing interpretations Against Mr. Petyt p. 1. But I must confess they are so weak that these sacred things need very little help to rescue them ib. especially since their Enemies are so far from agreeing amongst themselves that 't is more easie to conquer than to reconcile them As on Mr. Petyts and my side the design can be no other than to shew how deeply rooted the Parliamentary Rights are So the Doctors in opposition to ours must be to shew the contrary a design worthy of a Member of Parliament and 't is a Question whether he
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