Term. Pasc. 7. 8. Jâ—hannis 9. dorso claims against William Scoteny the Capital Messuage which he ought to have in Steinton with the Appurtenances as that which belongs to his elder share of the Barony which was Lambert Scoteny's These surely were Brothers not Sisters Sons being of the same Name and the Claim being immediately from the seizin of Scoteny and this Claim was allowed as the Record shews Besides tho 't is generally believed that Wardship was in use before the Reign of H. 3. And Mr. Sylas Taylor in his History of Gavelkind Hist. of Gavelkind p. 104. thinks he proves it to have been before the supposed Conquest Yet we have good Authority that there was no express Law for this before 4. H. 3. Kâ—ighton fo 2430. Aâ— 1219. 4 H. 3. Magnates Angliae concesserunt Regi Henrico Wardas hoeredum terrarum suarum quod fuit initium multorum malorum in Angliâ The great men of England granted King Henry the Wardships of their Heirs and Lands which was the beginning of many Evils in England 2. We find Custom prevailing beyond what was the foreign Feudal Law at least of some places for which I may instance in Relief paid by the Heir male after the Death of his Ancestors Whereas I find it in Cujacius payable only by the Heir female Cujaâ—iâ—s fo 498. Siquis sine filio Masculo mortuus fuerit reliquerit filiam filia non habeat beneficium patris nisi à domino redimerit If any one dye without Heir male and leaves a Daughter let her not have her Fathers Benefice unless she redeem it of the Lord. That Relief was called Redemption appears by the Law of H. 1. Leges fo 1. cap. 1. Haeres non redimet terram suam sicut faciebat tempore fratris mei sed legitimâ justâ relevatione relevabit eam It seems in King Rufus his time this payment was so unreasonable that 't was a Redemption in a strict sense and a kind of Purchase of the Land but now 't was to be a lawful and just Relief 2. The jus feodale mentioned in the Glossary if it be not the Law generally received where Feuds were must be the Law of England in particular But 't is to be observed that Choppinus knocks this down who tells us that amongst the French Juridica potestas was not imply'd by a Feud Against Petyt p. 31. in margin But our Apollo teacheth us that our ancient Tenures were from Normandy and that was govern'd by the French Feudal Law being of the French King's Feud Wherefore the Juridica Potestas or jus dicere was not here Ex ipso jure feodali nay in the same place the French Feudist tells us Choppinus de Jurisdict Andeg fo 455. Interdum certè Baro Castellanum observat superiorem 'T is certain sometimes a Baron is under a Castellan's Feud And he gives the Reason why it may be so which is that a Feud carries not with it ib. so 450. the Potestas juridica which reason is very apparent in that a Castellan is of a degree lower than a Baron Take Juridica potestas in the same Sense with jus dicere in the Glossary a Baron was to take Laws from his Inferiour Leges H. 1. cap. and to have his Lands taken from him without Forfeiture as it appears by the Law of Hen. 1. that being one of the Judges in the County Court was not upon the Account of Resiance but the having Free land there so it must have been in the great County Court of Cheshire though they had an extraordinary Power there Admit therefore that a Lord of another County were Feudal Tenant to a Commoner there as 't is not to be doubted but he might have been should this Lord have been represented by his Capital Lord there Glos. 2 part Consentire quisque vid. Or admit a Lord there had no Land but what he held of a Commoner as of such an one as Thomas de Furnival Jani Angl. facies nova p. Sed vide the Record more at large who had several very considerable Mannors might Thomas de Furnival represent the Lord in the Lord's House But farther taking the Jus Feodale to be as in force with us unless the positive Law giving so large a Power be shewn 't is a begging the Question for 't is to prove the Right which our wise Antagonist would exclude from the Question as being indisputable I suppose by the Fact whereas the fancied Right is used in his Hotch-potch Glossary to induce us to the belief of the Fact But from what Sourse is this Right deriv'd SECT 5. An Improvement of the Notion of Jus Feodale THat I may make our mighty man of Letters out of Love with his darling Glossaries 2 Part of the Glos. and his own I shall observe to him That according to that for the Credit of which he pawns his own Truth or his Friends All the Lord 's Right of Representing their Tenants in the Great Councils Against Mr. Petyt p. 31. is meerly Feudal ex ipso jure feodali But all Feuds were enjoy'd under several Military Conditions or Services Being then these were the onely Feudal Tenures and yet as appears by domesday-Domesday-Book and all manner of Authority there were Freemen who held in free or else in common Socage though the Dr. sayes all the Freemen of the Kingdom were Tenants by Military Service These Socagers were not chargeable by any without their own consent But like men of another Government and it seems he will afford them nothing here they though called were not obliged to come to the Great Council which was the Curia of the King 's Feudal Tenants onely Nay they were never at it And therefore no wonder if the Laws were obsâ—rved by and exacted upon Against Mr. Petyt p. 43. onely the Normans themselves For the others could not be bound and if they consented to any Charge for Defence of the Government it could be onely in what way they pleased to consent either in a Body by themselves or united with the Vassals or else severally at home as a meer Benevolence And there being free and common Socage Tenants before the Norman's Entrance and since continually thus it must alwayes have been CHAP. III. That Domesday-Book to which he appeals manifestly destroyes the Foundation of his Pernicious Principles SECT 1. SInce our Tenures and the manner of holding our Estates Against Mr. Petyt p. 31. in every respect with the Customes incident to those Estates are said to be brought in by the Conquest and not onely most but all free Estates must have been feudal as Knights Service which is made the onely feudal was in the time of William the First the onely free Service ib. p. 39. What I have said of Feuds in the last Chapter doth directly reach the Controversie between us though our Author who has an excellent faculty of overthrowing his own Arguments
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
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
〈◊〉 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
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
men Against Jan. c. p. 99. so that even the Normans Estates were taken away too And this that erroneous Glossary makes under the Feudal Law too for from thence 't is inferr'd that the great Tenants in Capite had Right to impose Laws upon them that held of them and to exclude the whole Kingdom besides from the Great Councils This though no Conquerour the Dr. left out either as being ashamed of it being 't is little less than a Contradiction to say a man was no Conquerour and yet seized upon all the Lands of the Kingdom and forc'd them to submit to such Seizure so that he conquer'd the Land or because it contradicts his Notion of William's being a Conquerour so that he himself had as much reason to exeept against this Book as others but it seems Against Mr. Petyt p. 35. out of a stark Love and Kindness to Truth he left only what was against him but took what was for his Purpose And for the Support of it's Credit tells us a formal Story the Attestation to which from outward Circumstances I never thought it worth the while to examine since I have so much Reason from within it self to believe it to be spurious Against Petyt p. 13. and so ought he For if he have any respect to that great man's Memory he will not suffer him to say that William divided out the whole Kingdom to hold under the Feudal Law when before he had observ'd of Gavelkind the general Tenure of the Lands in Kent Feudalibus legibus non coercetur 3. The Lands of all these Grantees of King William the First descended to the eldest being held in Knights Service Si miles fuerit vel per militiam tenens tunc secundum jus regni Angliae primogenitus filius patri succedit in totum Glanvil lib. 7. c. 2. If a man be a Knight or holding by military Service then according to the Law of the Kingdom the Eldest shall succeed his Father to the whole But for the greatest Authority we have an Act of Parliament which having full Power to alter the Tenure 31 H. 8. c. 3. enacts that certain Lands in Kent shall descend as Lands at Common Law and as other Lands in the said County which never were holden by Knights Service us'd to descend Here the Descent of Knights Service is the same with Descent at the Common Law which was to the Eldest and this is oppos'd to the Descent of Lands in Gavelkind which was Socage And thus have I proved every thing which upon this Head was needful to vindicate the Right of the English and to prove that their Rights were own'd in Practice notwithstanding the vain Flourish of a Conquest It may be objected perhaps that the Feudal Law which was exacted and observed by and upon only the Normans might have related only to such as held immediately of the King for that his Grantees might and did often grant out to others and their Heirs for ever to hold in free Socage Yet this will not do because such Grantees would have been Free-men but all the Free-men of the Kingdom were Tenants by military Service though by their Tenure any of them were only to pay a Rose a Spur a Sum of Money or any other thing Therefore hereby is my Argument inforc'd if William had been a Conquerour in the Sense strove for as disseizing all the English and making Grants of their Lands to the Normans and that to hold by Knights Service and all the Normans both they who were here before William's Entrance if any such had any shares allow'd them and they that came in with him or followed for the spoil were under the Feudal Law requiring Knights Service and these were the only Free-men How came there to be such a Race of lawless Free-men as the Sokemanni p. 31. And how is it possible that the manner of holding our Estates in every Respect with all the Customs incident thereto should be brought in by the Conquerour p. 29. Whoever reflects upon these things will as he says of a reverend Judge acknowledge the Dr. to be very ignorant in the History of this Nation or that he spoke out of Design the words which I fairly cite from him in relation to the Conquest and the Great Council suppos'd to have been establish'd thereby CHAP. VI. Proved from the Beginnings of Charters and Writs that the English were not disseized of all by William the First THough even the former Head of the Socmen such as I find holding in parigio was a needless Addition to the particular Consideration of Domesday book Domesday which might serve instead of a thousand proofs that William the first did not divide all the Land of the Kingdom to his Followers and consequently did not impose upon the people such a Representative as is fondly conjectured Yet I cannot omit the mention of those numerous Writs and Charters Vid. numbers in the Monasticon which are directed Omnibus Baronibus hominibus suis Francis Anglis Or as one of the Charters of William the First Carta W. 1. Monasticon vol. 1. f. 397. into one County and so on occasion into all Archiepisc. Justiciariis Vicecomitibus Baronibus fidelibus suis Francis Anglis Eborascire Admit that Fideles signified Feudal Tenants this shews that the English had shares as well as others but here being the Vicecomites before Barones I should vehemently suspect That the Free-holders of the County were meant At least Carta Antiqua n. 11. we find the ordinary Free-holders and they English as well as French Vid. his Glos. complemented by Matildis as persons of some Quality and Interest in the Nation Matildis Dei gratia Anglorum Regina Episcopo London Justiciariis Vicecomitibus Baronibus Ministris omnibus fidelibus Francis Anglis Here being Ministri between Barones fideles the Ministry must be such as by their Tenures were bound to attend in the Wars and the Fideles the King 's ordinary Subjects there being no Mat. Paris to explain fideles here and help us out of this Difficulty which is made greater by King Stephen's Charter Archiepis Episcopis Abbatibus Comitibus Justiciariis Baronibus Vicecomitibus Ministris omnibus fidelibus suis Francis Anglis totius Angliae Nay to perplex the Cause the more we find under Subjects Free-holders English as well as French and these were such as were the Curia Baronum where Tenants in free and common Socage were Suitors as well as such as held by Knights Service Willielmus Comes Gloucestriae omnibus Baronibus hominibus suis Francis Anglis atque Walensibus 'T is not improbable that the Welsh Vid. Taylors Hist. of Gavelkind Jani Angl. p. 41. which were some of his Tenants were then all Socagers but then the Codex Roffensis shews how greatly the English were interested in the Counties in the time of William the First Praecepit
ought to remember that the very Law whereby he would prove all the Free-men of the Kingdom to have been Tenants by Knights Service was in Confirmation of the Confessor's Laws and that granted to those who had lived under them and knew the Benefit of defending themselves and their Properties in the Great Councils and the Nation too there or by their Arms elsewhere without out trusting the manage of all to such Thayns as held immediately of the King Nor were they then likely to quit their former Advantages when as appears by the Story they were in a probable Condition of gaining more if they would for the English had got together by the Encouragement of Abbot Fretherick Exercitum numerosum fortissimum a numerous and most potent Army and in their Head was he who was the only Heir to the Crown and that a Title above the Confessor Upon this Prudentiâ feliciter eruditus having the Happiness to follow his Interest and comply with the Occasion he granted St. Edward's Laws with some Additions indeed but not with such as would defeat the whole And I affirm it that though in his Additions he provides about the Tenures or other matters of his then or future Tenants yet there is not any thing which creates a feud over the whole Kingdom Indeed the Dr. who understands not for it was beyond his Sphere that Service laid either by Common or Statute Law upon all free Lands such as before the Conquest and since the Burgh-bote the Bridge-bote and the Expeditio the last of which we have been disputing of under the Law of Arms is a Service but no Tenure Tit. Hon. as Mr. Selden has rightly shewn would infer that because the Conquerour in Affirmance of St. Edward's Laws enacts That they shall for ever or Jure haereditario enjoy their Lands free from all Manner of Charge but their free Services which indeed tho it implies not his raising Tenures universally does not exclude such as himself had raised that therefore all were made Feudal Tenants Quod restat probandum SECT 2. FOR King John's Charter If he thinks fit to read over the Book that treats of it Against Jan. c. p. 47. once more and to observe it well and compare it with what he hath said he will find it anticipated and answered and if he hath not a mighty strong Fancy of his own Abilities must be ashamed of his impertinent Rhapsodies Since 't is there abundantly proved that though that King's Charter seems to some Understandings to make express provision for the summoning the Great Council of the Nation yet it expressly provided for the summoning the lesser Council the more ordinary Curia Regis only the Tenants which were Members of it standing in need of a Law to relieve them from some Hardships they were under Whereas the constant practise from the Reign of William the First inclusively downwards evinces that they who composed the Great Council had maintain'd their Right ad habendum commune Concilium regni uninterrupted for a general proof of which the Authority of Bracton was us'd which shews that besides such Payments as lay upon the Kings Tenants in Capite or had their Rise from Custom there were other introduc'd by the Common Consent of the whole Kingdom whence 't is easie to conclude that King John's Charter does not exhibit that is prrticularly set forth the full form of our English great and most general Councils in those days Jani c. p 1. Though there is a general Reference to all the constituent parts of those August Assemblies and to be sure nothing to prove that Tenants in Capite were the only Members of them yet what others have thereby Right ad habendum Commune Consilium Regni is not exprest how strongly soever it may be imply'd from the words even without the Interpretation of practise That others had Right is undeniable from the words and 't is as clear from practise who those others were and whether or no all the Members of the great Councils of the Kingdom or even all such as were Tenants in Capite came to Council in Person either upon general or special Summons as such Tenants did to the Conventions for matters of their Tenure is not mentioned but left to that ancient Course and Right which the Practice or Fact explains Tho this last be barely of the manner of Summons yet it shews that the manner is mentioned only in Relation to the form of an ordinary Curia Regis as I shew the Council of Tenants to have been The words upon which our Dispute is are these Nullum Scutagium vel auxilium Mat. Paris fol. 257. ponam in Regno nostro nisi per Commune Consilium regni nostri nisi ad Corpus nostrum redimendum ad primogenitum filium nostrum militem faciendum ad primogenitam filiam nostram semel maritandam Et ad hoc non fiet nisi rationabile auxilium Simili modo fiat de auxiliis de Civitate Londinensi Civitas Londoniensis habeat omnes antiquas Libertates Liberas consuetudines suas tam per terras quum per aquas Praeterea volumus concedimus quod omnes aliae Civitates Burgi Villae Barones de quinque portubus omnes portus habeant omnes Libertates omnes liberas consuetudines suas ad habendum Commune Concilium Regni de auxiliis assidendis aliter quam in Tribus casibus praedictis de Scutagiis assidendis submoneri faciemus Archiepiscopos Episcopos Abbates Comites majores Barones Regni sigillatim per literas nostras praeterea faciemus submoneri in generali per Vicecomites Ballivos nostros omnes alios qui in Capite tenent de nobis ad certum diem scilicet ad terminum quadraginta dierum ad minus ad certum locum in omnibus literis submonitionis illius causam submonitionis illius exponemus sic factâ submonitione negotium procedat ad diem assignatum secundum Consilium eorum qui praesentes fuerint quamvis non omnes submoniti venerint My Inference from hence as I find Et de Scutagiis assidendis divided in a distinct period from what went before the Dr. how foul soever his Reflection of New-face-Maker is Against Jani c. p. 3. has render'd not unfairly viz. That the City of London all Cities Burgs Parishes or Townships that is the Uillani their Inhabitants the Baroons of Free-men of the five Ports and all Ports should amongst other free Customs enjoy their Right of being of or constituting the Common Council of the Kingdom And that this reading and my Deductions from it are not so far remote from Reason and Sense Against Jani c. p. 60. that no man but my self could ever have thought of them appears in that he or they who Midwiv'd into the World the spurious Glossary 2 part of the Glos. use some Artifice to keep them
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
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
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
Confessor whereas on the other side were Villeins vilis plebs and praepositi Bailiffs all which may be Normans if he please Farther when ten Tithings of Freâ—pledges made an Hundred to suppose that these were not Hundredors legal men there Glos. p. 31. but the Knights who were not bound with Sureties to their good Behaviours is as silly as to say two times two do's not make four 2. His Notion is dangerous and that according to that Improvement of it for the sake of which 't was broach'd But of these Tenants in Capite Against Jani c. p. 13. ' t is highly probable if not without doubt that the two Knights were at first chosen by the other Tenants in Capite in every County to represent them And the Reason given for this is That the Elections were to be made in the County Court by the Suitors Against Mr. Petyt p. 42. and this he imagines to have continued in such Tenants till the 8th of H. 6. c. 7. by which any man that had 40 s. per annum 8 H. 6. c. 7. of any Tenure was permitted to be an Elector Whereas to any one but him 't will be obvious upon reading the Statute that it is restrictive of that Power which before was in men of lesser Estates but is very far from giving any new power Whereas the Elections of Knights of Shires to come to the Parliaments of our Lord the King in many Counties of thâ— Realm of England have now of late been made by very great and outragious and excessive number of People dwelling within the same Counties of the Realm of England of the which most part was of People of small Substance and of no value whereof every of them pretended a Voice equivalent as to such Elections to be made with the most worthy Knights and Esquires within the same Counties whereby Manslaughter Riots Batteries and Divisions among the Gentlemen and other people of the same Counties shall very likely rise and be therefore 't is provided that the Choice shall be in every County by People dwelling and resident in the same Counties whereof every one of them shall have Land or Tenement to the value of 40 s. by Year above all Charges c. Here is manifestly an Exclusion of some former Electors but no new ones created wherefore the unforc'd Consequence is that all Lands being now held in Free or common Socage and there being no time for Prescription or any new Law impowring such to chuse their Representatives this great Preservative of the Rights and Liberties of the Subject is defunct and I dare say 't is neither within his Art or his Will to recover it Yet though he would smother it I doubt not to find it alive amongst his Nobles for whatsoever made a man Noble Against Jan. c. p. 91. secured this Priviledge to him But Ingenuity made a man noble therefore every Ingenuus was always of Right an Elector for the Great Councils or present at them That Ingenuus and liber homo were the same I take it is evident from Bracton Bracton lib. 1. c. 10. who makes the 〈◊〉 Division of persons to be into the Liberi Freemen or else Servants of such as are sui juris who have that Liberty ib. cap. 5. p. 4. which he says is of the Law of Nature or such as are under others whose Liberty is obfuscata darkened or beclouded by the Law of Nations These are but different Expressions of the same thing ib. under the first are the Nobles in a strict sense as of an higher Order such were the Majores Barones and the Ingenui sive Liberi nay the Libertini too Bracton such as were manumitted and restored to their natural Liberty under the other were Servants Villains or others The learned Cluverius in his Description of Germany Cluver Germ. Antiq f. 121. cap. 15. Nobilium Ingenuorum Libertorum cui admixtus Libertinâ—rum from whence we derived our Distinctions makes three Orders under the first Division But all Free-men of either Order were Ingenui with Bracton who takes no difference here And if we believe our Author 's ipse dixit all ingenui were Nobles Quod erat demonstrandum 'T will be hard if amongst these Ingenui Against Jani c. p. 42. we do find prodes homes too but our Author has seen it written prudes homes though he cannot call to mind the Record And truly we have no great Reason to trust his Memory since 't is so treacherous to expose him by frequent and palpable Contradictions Well Prudes homes they were Ay that they were that came to the Great Councils such as were the Wits in the Saxon Gemotes but if to the Folkmote there came to be sure all the Frank-pledges then they were Noble Wits and so vous avez Against Petyt p. 21. the liberi homines prodes homes prudes homes and Wites or Sapientes But upon second Thoughts the Communitas populi were the Community of the Barons only Against Petyt p. 129. together with the Alios the Milites who held by Military Service of the great Barons and the lesser Tenants in Capite And for this there is Demonstration Ib. p. 56. in that the Meaning of Populus iâ— to be taken as contradistinct from Clarus and then it signifies no more thaâ— Laity it doth not denote a distinct State or Order amongst secular men or Laies but an Order and State of men Ib. p. 57. distinct from the Ecclesiasticks or the Clergy This by no means is meant of the inferiour sort of People But good Mr. Interpreter if Clerus signifies inferiour Clergy as well as the Superiour nay is most commonly appropriated to the inferiour what becomes of your profound Observation and of all your Presidents And how comes it to pass that even the poor Mass Priests were anciently called Mass Thegnes Possibly no man has a better Faculty than this Gentleman of facing out clear Proof which he often brings against himself An. 1244. 28 H. 3. Against Mr. Petyt p. 162. Thus he tells us The great men of the whole Kingdom the Arch-bishops Abbots Priors Earls and Barons were called together in which Council the King by his own Mouth in the Presence of the great men in the Refectory at Westminster desired a pecuniary Aid to whom it was answered that they would treat about that matter And the great men retiring out of the Refectory the Arch-bishops Bishops Abbots and Priors met and treated by themselves At length the Earls and Barons were asked The Dr. omits engliâ—â—â—ng ex parte eorum either not understanding it or because it manifestly destroys his Whimsey p. 17. if they would unanimously consent to the Resolutions they had taken in answering and making provision for what had been demanded of them Who answered that without the Common Vniversity Communâ— universitate rather the University of the Commons they would do nothing
Statute of the Great men The Law made à Rege ib. p. 11. Baronibus Populo had the like Legislators and I do affirm Against Mr. Petyt p. 13. that the word Populus is not to be found in any of these Thus I have wonderfully discovered the unsoundness of Mr. Petit's Assertions ib. p. 2. though it will be objected I have jumpt over several Arguments and they material ones concerning Great Councils before the Conquest Upon which it follows that if the Populus were admitted after it must be by the bounty of the Conquerour who might at pleasure revoke his Concessions For the Story of Edwin of Sharnborn b. p. 24. supposed to have enjoyed his Lands by a Prior Title 't is a famous Legend and trite Fable though he had the King's mandat for Recovering his Estate Sir Edward Coke ib. p. 30. who to avoid the evidence that our English Laws were the Norman Laws Against Jan◠c. p. 89. said The Laws of England are Leges non scriptae said it precatiously without any Foundation or Authority Besides 't was ridiculous as if they were known by Revelation divinely cast into the hearts of men Though some may impertinently ask me Whether there were not Laws before Writing and that without Revelation or divinely casting into the hearts of men But that Against Mr. Petyt p. 167. if affirmed is a palpable and gross Error What though that Clergy-man-Lawyer Bracton agree with Coke yet he spoke out of Ignorance or Design when he said Absurdum non erit leges Anglicanas licet non scriptas leges appellare Bracton l. 1. fol. 1. William the Conquerour brought in a New Law Against Mr. Petyt p. 29. and imposed it upon the People The greatest part of the Antient Law as it was brought hither by the Normans was exacted and observed by ib. p. 43. and upon only the Normans For the English they had no Property or Rights left And so were all Outlaws This domesday-Domesday-Book in every County shews though 't is said several English-men are there mentioned holding by Titles not derived from the Conquerour p. 176. And for a farther proof of this King William ' s Law to all the Freemen of the whole Kingdom was made only to Tenants in Military Service ib. p. 39. which were French p. 35. Flemings Anjovins Britains Poictovins and People of other Nations When this King in the 4th of his Reign summon'd Anglos Nobiles Sapientes suâ lege eruditos to give an account of their Laws 't was a Sham Summons for no English were Nobles nay none were so much as Free-men but the Foreigners amongst whom William divided the Kingdom and therefore Strangers that had their Estates came in their steads and gave an Account upon Oath of the Laws before their own time as they us'd to do of matter of Fact p. 39. when sworn upon common Juries William the Second and Henry the First were Usurpers and Traitors p. 51. notwithstanding the People's Elections Clerus and Populus are to be understood onely of Tenants in Capite p. 56. never of the inferiour sort of People Wherefore they dote who say that the inferiour Clergy nay the dignified not Tenants in Capite came to Great Councils before 49 H. 3. It 's very true Against Jan. c. p. 70. that in our Ancient Parliament-Rolls the Knights of Shires are sometimes called Grantz des Counties or Great men of the Counties and well they might for without doubt they were most commonly the greatest Tenants in Capite under the degree of Barons in each County Against Mr. Petyt p. 116. 117. And for evidence of this the Great Tenants in Capite that were no Barons and perhaps the least Tenants in Capite in the times of Ed. 3. and Ric. 2. are call'd autres grantz or Grandes autres Nobles which were Barons Peers called by the King 's Writ into the Lords House at pleasure and omitted at pleasure Wherefore 't is to be observed that the Knight for the Shires might well be Noble or Grantz since they were call'd sometimes to sit in the Lords House And whether they that were chose for the Counties and did not sit in the Lords House as Barons Peers were Grantz or Nobles perhaps may be a Question As a choice piece of Learning I must acquaint you that though sometimes Fideles signifie qui in Principis alicujus potestate Glos. p. 15. ditione sunt qui vulgo subjecti appellantur Subjects in general yet unless there be special matter to shew the contrary 't is meant of Uassals who having received Fees are in the Retinue of some Patron or Lord if in the King's Retinue they are Tenants in Capite So when we find Writs directed Omnibus Christi Fidelibus Glos. p. 17. Here when there is no more Subject matter to determine it than when 't is omnibus Fidelibus Regni they must be our Saviour's Tenants in Capite When the Form of Peace Against Mr. Petyt p. 125. in the 48th of H. 3. was by the Assent of the King the Bishops and the whole Community of the Kingdom can any man say the Earls and Great Barons these Tenants in Capite gave not their Consents They must be included in and were a part of the whole Community of the Kingdom And indeed to speak the truth it is not denied against me Against Jani p. 71. but proves their Notion to those Vnwary Readers whom they seduce to have some good opinion of their Fancies Though that Form of peace is said in the Record to be Actum in Parliamento London Against Mr. Petyt p. 208. yet the Prelates and Barons were such as sided with Montfort p. 120. and the Community was the Body of his Army and the Citizens and other of the Faction they were not the Community of the Prelates and Barons onely as at other times Nay here were the Citizens and others besides the Army And yet the Community or Body of the Army took in all besides the Prelates and Barons And this must needs have been the Army Mat. Westm. p. 394. Posted convenientibus Londini Praelatis c. partis illius quae Regem suum tam seditio è tenuit captivatum because 't was after their work was over that the Assembly at London was And the Army it must be though as 't is idely objected it is far from appearing that all the Bishops Earls and Barons which consented had been in Arms. Though they that were of the Faction as is usual caball'd together and as some will say onely resolved upon what they would press the King to they hereby Statuebant c. made Laws before the consent of the King and all the Bishops Earls and Barons and it should seem before all were assembled or could be a Parliament And which such as never intended to understand will make a wondring
at the Community was the Body of Montfort ' s Army Against Jan. c. p. 26. and the Citizens and others of the Faction Against Mr. Petyt p. 125. yet here at this very time and place the Community of the Kingdom of England must needs be the Community of the Barons and Great men Tenants in Capite by Military Service and no other Not onely because here was the Body of the Army and Citizens and others of the Faction but because as is clear from an impregnable instance viz. of the same kind of Council which sent the Letter to the Pope in the Case of Adomar or Aymar de Valentia besides the Earls p. 126. 127. Noblemen or Barons Great men there were the Tenants by Military Service that held of and attended the Barons and Great men and when the King said that though He and the Great men should be willing that Adomar who withdrew himself out of the Kingdom should return tamen Communitas ipsius which is the Community not his would not suffer his coming into England the Great men were the Kings Friends p. 121. the Community his Enemies So that here are two Armies the Great men the King's Friends on one side and the Community his Enemies on the other which is just such another Council as that in the 48th yet without doubt none of the King's Party or Friends were there Rot. Parl. 42 H. 3. m. 3. n. 9. Though in the Articuli Cleri 9 Ed. 2. about fifty years after we find Petitions presented by the Clergy temporibus progenitorum nostrorum quâ—ndam Regum Angliae in diversis Against Mr. Petyt p. 121. Parliamentis Which includes the time of H. 3. Grandfather to Edw. 2. At least this was meant of several Armies and so was the Parliamentum Oxon. Against Mr. Petyt p. 192. but six years before the Military Parliament of the 48th an Army being a Parliament in the sense and general use of the word at that time ib. p. 183. that is a great Assembly Convention or Meeting of the Faction and their Army And thus in the 30th of this King the Parliament is call'd the Vniversity of the Militia that is of them Qui militare servitium debebant the Milites Fideles It seems in many of these Parliaments or Armies chuse you whether the Clergy in their Canonical Habits address'd themselves to the Military men upon which sort of Parliaments they could not fail of prevailing with their brutum fulmen of Excommunication and Ecclesiastical Scare-crows What Against Mr. Petyt p. 135. is Petyt so ridiculous to have the Commons an essential part of the Parliament from Eternity 'T is plain that the Commons began by Rebellion Nota. To lessen their own power because their Constitution was not forc'd by the Barons with their Swords in their hands or promis'd to them then Ib. p. 226. but began from the King's pleasure when the Rebellion was over and the King was restored to his Regality Post magnas perturbationes enormes vexationes inter ipsum Regem Simonem de Monteforti alios Barones motas sopitas And none but Tenants in Capite were Barons before Ad summum honorem pervenit ex quo c. because then and not before the word Baro became a word of greater Honour Against Mr. Petyt p. 226. that is appropriated to Tenants in Capite or their Peers So that before 't was so appropriated more were Barons What though in the Letter to the Pope Jani c. p. 244. the Nobiles portuum maris habitatores necnon Clerus Populus Universus Against Mr. Petyt p. 157. are named yet these troup of words were only to make an Impression upon the Pope who good man knew nothing of the English Constitution or what was done here but would think all they were assembled in such a Great Council as other Parts of Christendom then had I shall not scruple to discover some mysteries to you The Liberi Homines were Tenants in Capite or at least their Retinue and Tenants in Military Service Glos. p. 26. which were with them at Runnemede These liberi homines or Free-men were the onely men of Honour Faith Trust and Reputation in the Kingdom These were the Free-men which made such a cry for their Liberties ib. p. 27. as appears by Magna Charta most of which is onely an abatement of the Rigour and a Relaxation of the feudal Tenures Nay Against Mr. Petyt p. 39. 't is to them these Free-men onely that the Grants were made They that are there mention'd holding of the King in Fee Farm Vide King John ' s Charter petit Serjeanty free or common Socage and Burgage held not so Jan. p. 181. But they all held by Knights Service and so were the King's Barons Of these Barons some might be Villains for that a Tenement or Possession neither added to Glos. p. 10. or detracted from the Person of any man if free or bond according to his Blood or Extraction ib. p. 30. Nay the Freemen or Tayns Theyns were anciently no part of the Kingdom for that was all divided into Frank-pledges of which there was to be a general view in the Sheriff's Tourn but these Frank-pledges were all pitiful Fellows bound with Sureties to their good behaviours ib. p. 31. which the Theyns were not .. Which answer his quotation out of Briton Glos. p. 31. In after times some might have had particular Charters of Exemption or else generally such of them as grew to be Great men were excused Whereas Mr. Petyt contends Against Mr. Petyt p. 177. that the liberè tenentes de Regno came to the Great Councils 't is a giddy Notion Whoever heard of Tenure of the Kingdom Though indeed we find in Domesday Book that such an one holds de Comitatu But more directly to the point Herefordshire Castellum de Cliford Such a Castle est de Regno Angliae non subjacet alicui Hundredo neque est in consueâ—â—dine ulla And I 'll warrant it he with his designing Interpretations Against Mr. Petyt p. 1. will render it That this held not of the Kingdom but that it was of it or in it and so were the Free Tenants But to load this Opinion according to the literal meaning of the words Omnes de Regno p. 187. which sometimes occur all Copy-bolders all Tradesmen all Bondmen and Villains and all Servants were Members of Parliament Yet there having been no Representatives before 49 H. 3. all the Inhabitants of Cities Burroughs holding in Capite or Chief and several Towns Corporate not holding in Chief came to the great Councils in their own Persons which some will say made a greater Body than the Inferiour Proprietors and the Representatives of these Places and were Persons of as mean condition For the Lords themselves they have no better Against Mr.
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
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
of the King I take leave to observe that the Right of Precedency from within the Reign of H. 3. nay though before the 49th is no way inconsistent with the Belief that many Lords who had Right till a Settlement then made were left out afterwards at the King's Pleasure that is had no special Summons yet tbey could not be denied their Right of being there in Representation Be it that the Heires of Bigod and himself Jan. Angl. faciâ—s nova p. 257. 262. were Tenants in chief which as I thought at least I shew'd formerly could not since the 49th have Right to come to Parliament quatenus Tenants in chief yet when any of the Heirs came upon particular Summons to Parliament that is 6 R. 2. cap. 4. All Singular Persons and Commonalties which shall from henceforth have the Summons of Parliament c. the King 's Calling them out as Singular Persons they were to come as Tenants in Capite in the manner as they be bounden and have been of old time accustomed And they that refused shouldbe amerc'd as is the Penalty By Manner is meant 1. in the same Quality Lords as Lords and 2. in that Degree of the same Quality which of old time had been accustomed 3. The Manner also implies the manner of enjoying any Power in Parliament Thus the Lords were of old accustomed to enjoy the ordinary Power in a Manner properly Judicial and that the supream Manner too Whereas the Commons had of that only what was needful to maintain their Priviledges as to the Legislature the Manner was the same Neither was above or could give Law to the other But in the judicial Power in Parliament the Commoners were no more to be joyned with the Lords than with the Tenants in Chief in the King 's ordinary Court out of it Vid. infra in the body of the Book p. since the same Curia Regis delegated from the Lords and answering to that which was pro more us'd to exercise that Power both in Parliament and out of it so that wherever they sate they were in the same Court The Commons could not exercise this Power with them out of Parliament therefore not in it Some will say that no more is intended by this Statute than that every one who receives Summons must come as was his Duty and had been of old Whereas 't is certain they who did not come as they were bound were amerceable before at the Common Law nor was it likely that the King wanted a Law to make good that Prerogative which to be sure he had over his Tenants by their very Tenures and could seize upon their Lands for Contempt of his lawful Power as the Bishops were sometimes threatned Vid. 4. â—ust Inde se capiet ad Baronias su 8. And this is enough against this Author since he makes the King's Tenants in Capite to have been all that came to Parliament even by Representation till the 8th of Hen. 6. Against Mr. Petyt p. 42. which 't is his setled Design to prove though sometimes he contradicts himself and yields that their Tenants by Knights Service came too Besides the genuine Import of the Manner leads me to this sense especially as 't is joyned with Bounden For he who was a Commmoner till the Summons was not bound to come as a Lord nay was not a Lord when he came As appears by the Writs to the Lords Assistants in the same Form with those which the Lords have So that the Statute in my sense is manifestly in Affirmance of the Common Law I shall lay at the Feet of the Lords my Sentiments in relation to their House either as I agree with or oppose one to whom that High Order probably will not think themselves much obliged I shake Hands with him Against Petyt p. 228. and agree that King Hen. 3. a little before his Death began to leave out such Earls and Barons as he pleased but I believe not this upon his Ground which is as if it were meerly from Royal Authority that is the Prerogative which that King had from of Old p. 229. without the Actual Consent of the People For I say 't was given him by Parliament Jâ—es Rep. f. 103. concernthe Earldom of Oxford Princes Case 8. Rep. either in the 48th or 49th Nor doth Rex statuit in the least discourage me in this Opinion being many Acts of Parliament have pass'd with the joint Authority of King Lords and Commons and yet the Enacting Part has had words of the same Import with this 2. I differ from my Opponent when he would have it believed p. 228. supra that Ed. 1. and his Successors observed this constantly or as he exprest the same thing before p. 227. The Practice was then and ever since accordingly And in this he has dealt as unfairly by Mr. Camden whom he quotes as I doubt not but 't will be found he has done by Mr. Petyt and me For Mr. Camden tells us That he has this out of an Author sufficiently Ancient and thinks not that he differs from the Authority which he receives when he says 'T was thus only donec till there was a setled Right And this he makes 11 R. 2. but this the Doctor vouchsafes not to take notice of But how cheap does he make his applauded Reasonings when he would prove it to be thus ever to this very time or the time of publishing his Libel because it was in the Reigns of Henry 3. Ed. 1. and his Successors to the time of that Old Authors Writing who if we credit Mr. Camden wrote before 11 Richard 2. of which he might be assured by the way of Writing in several Kings Reigns respectively to which Antiquaries are no Strangers or else by the Date annex'd in the same Hand But to prove that the Learned Clarenceux knew more of these things than this Pretender I shall shew that Rights were setled for coming to the House of Lords long since Against Mr. Petyt p. 175. But he will say possibly That he has anticipated and evaded my Proof as my Arguments upon the grand Question were in his Belief Against Jan. c. p. 47. by saying in one place Against Mr. Petyt p. 227. In those times probably the King might omit to summon whom he would I think he swarms with Contradictions as a Judgment upon his Vndertaking For he says That by what he calls the New Government 't was appointed and ordained ib. p. 110. not only that the Kings should call whom they pleased Which cannot properly be meant of Calling but once by Patent or Writ and the giving a Right from thenceforth to come afterwards because there was and is yet a new Call to every Lord for every distinct Parliament But he is express p. 227. That all those Earlâ— and Barons of the Kingdom of England to which the King thought fit to direct Writs of Summons should come
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
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
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
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
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
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
yields these Rights to be more than precarious For according to him the Tenents in Capite were the only Members of the Great Council before 49 H. 3. and if others were after 't was by Usurping upon the Rights of Tenents in Capite ib. p. 210. ib. 42. who and not others when the 〈◊〉 Government was set up How were Cities and Burroughs holding in Capite Represented according to this And how came they ever to be Represented began to be Represented by two Knights for every County out of their own number and they at first that is then Elected their own Representatives and yet these Tenents in Capite might be set aside if the King and his Council pleased nor was any power given to others to chuse till â—0 H. 6. c. 2. which gave no new power ib. p. 79. and the Lords depend upon the Kings pleasure ib. p. 42. Therefore what the design is ib. p. 227. 228. and at whose door the crime of it lies the thing it self speaks tho I should be silent But for fear he should seduce unwary Readers I must observe his Artifice in imposing upon them the belief that as it has ever since 49 H. 3. been at the Kings pleasure that any Lords came to the Great Council so the King could of right name to the Sheriff what Representatives for the Counties Against Mr. Petyt p 249. Cities and Burroughs he pleas'd as he observes in the Margent upon a Record 31 E. 3. but he is not so Candid to observe that though indeed at that time there was such a nomination yet that was noâ— to any Parliament or to make any new Law or lay any kind of Charge upon the Nation or particular men but was a Summons of a Council to advise how what was granted by full Parliament legally Summon'd might be best answered juxta intentionem concessionis praedictae and in such Cases the Judges only who are but Assistants in Parliament might well be consulted but pro magnis urgentibus negotiis as when King Charles the First called the Magnum Concilium or Great Council of Peers to York An. 164â— upon the Scotch Rebellion the King call'd more to Advise with and the Counsellors might well be of his own Choice 'T will be urg'd that when the King appointed but one for every County p. 242. 26 E. 3. they were impowr'd to consent to what de Communi Consilio contigerit ordinari p. 246. 27 E. 3. and that such a Council made Laws as the Statute of the Staple made the 21 of E. 3. to which the answer is very obvious that they made only Ordinances not Laws and that these were Magna Consilia taken in a sense totally different from the Generalia Concilia or Parliaments and all this appears above the power and subtilty of our learned Doctors Evasions in that the Record cited by himself in the 26 E. 3. calls the Assembly they are Summon'd to Concilium only and an Act of Parliament in the twenty eight of that King calls what was done in the twenty seven Ordinances 28 E. 3. c. 13. and that meeting a Great Council Magnum Concilium but such a Council it was and its Resolutions such meer Ordinances the distinction of which from Acts is well known that that very next Parliament finds it needful to confirm and give them the force of a Law Agreeably to this the Earl Marshal in that grand Case in the 3 H. 6. pleads that though a determination hadde be made against the said Earl Marshall in great Council Rot. Par. 3. H. 6. n. 12. though he hadde be of full age that might not disherit him without Authority of Parliament these are uncontrollable evidences and proofs against him let him to save the great Credit of his Learning answer them if he can But who is the new Government-Maker and new Parliament-Maker perhaps one might know from himself when he has considered a little better and then he may think the Government as 't is now establisht â—ighly concern'd in his Errors Perhaps 't will be said I injure this good man in imputing to him a design in relation to the present Government Since he owns that the most excellent great Council Against Mr. Petyt p. 229. and goes to prove it evidently from Records received its perfection from the Kings Authority and time But 't is obvious that its Perfection must be meant of such its Perfection as his Book allows and he would make evident but what is that That Lords should to the time of his excellent discoveries be Summon'd to Parliament ib. p. 227. 228. or past by at the Kings pleasure and that if the King pleas'd he might Summon one Knight for a County ib. p. 249. one Citizen for a City one Burgess for a Burgh and those nam'd to the Sheriff And this design will be very evident if we observe his aery ambuscade to return his own phrase and meer juggle in joyning the Kings Authority and time together we think we have something but by an Hocus Pocus Trick 't is gone for admit that its Perfection were such as we say it has at this day viz. for Lords to come of Right in their own Persons and that the Commons should send Representatives of their free Choice Yet let us see what setlement he gives this Great Council for which purpose we must divide the two Authorities which sometimes may differ And 1. Suppose that though time would preserve that power which the Great Council exercises a King would hereafter take it all to himself and make Laws by a Council of his own chusing or without any If the Doctor allows this power doubtless the next Parliament will thank him 2. Suppose that without or against the Kings Authority time only would establish this Great Council can this be done He that affirms it surely will be no great friend to Prerogative nor understands he that Maxim Nullum tempus occurrit Regi And one of these must be clos'd with 'T will be objected that I am as injurious to Prerogative in arguing that some Lords may have a Right of Prescription to come to the Upper-House But I think no sober man will deny that there is a right either from Writs alone or from Writs as prescribed to and 't is strange that it should not be against Prerogative to urge a right from one Royal Concession and yet it should be to urge it from many but farther if they who had no right to come in Person or be Represented in Parliament should by colour of Prescription put themselves upon the King for Counsellors this were derogatory to the Prerogative But if there be a natural right for Proprietors of Land with whom some say is the ballance of power within this Nation to be interested in the Legislature which I 〈◊〉 not affirm Or if there be such a positive right not only from the Laws for frequent Parliaments which suppose such to be Members as had been but more particularly from the Law received in the 4th of William the First Rex debet omnia rite facere in Regno per judicium procerum Regni and by positive Law or Custom the King us'd to send special Writs for some general for others the Prescribing to special Writs which is not of Substance as to the Legislative Interest is no diminution of Prerogative because no more in effect is out of the King than was before which is that this man should one way or other have a share in the Legislature If this Solution of mine will not pass I cannot help it I am sure the Law for a right grounded upon one or more Special Writs of Summons stands fast though the reason of it should be above my reach Having run through a Book so ill-natur'd to the Government and so impotent in its setled anger as that which some may think to have no other design Above all vid. Title page Against Mr. Petyt p. 81. than that of exposing Mr. Petyt and me the one for Artifice â—â—nhandsom dealing with and false application of Records c. the other amongst other things for Ignorance Confidence and Cheating his Readers I may hope notwithstanding the disparity of years and the dignity of his place to be very excusable in using our Answerer with no more respect When a man renders himself cheap by his folly and yet meers with many so weak that they are discipled by him to notions of dangerous and pernicious consequence to the State Ridentem dicere verum Quis vetat In summing up the Product of his many years labours which my Preface charges him with perhaps it may be thought that I omitted one considerable Head however I leave to others if they think fit to add for a seventh That both Lords and Commons may be depriv'd of all Shares or Votes in making of Laws for the Government of the Kingdom when ever any future King shall please to resume the Regality Some perhaps may add an eighth That the Parliaments are nothing but Magna Concilia such as are called only to Advise upon what shall be given in direction but no consent of theirs required to make the Kings determination a binding Law And Vice Versâ every Great Council such as that call'd to York 〈◊〉 1640. is a Parliament FINIS ERRATA PAge 12. l. 6. add Drs. before interdicts p. 15. in marg add p. 239. p. 16. l. 11. read vicinata p. 18. l. 10. r. 25. p. 28. l. 12. r. in Chief p. 39. l. 5. r. had p. 47. l. 21. r. induere l. 23. r. deposceret p. 82. in marg dele Shire after Cambridg p. 100. l. 17. r. Sharnborn p. 110. in marg towards the bottom add Domesday p. 124. l. 6. r. paragio p. 133. l. 24. add and according to their Chattels p. 139. add of before a title p. 151. l. 13. r. conticuissent p. 156. in marg r. Lords for Knights p. 163. l. 2. r. â—it l. 10. r. integra p. 201. l. 8. r. title In the Additions Page 8. l. 5. r. article p. 23. in marg Leges Sancti Ed. p. 25. l. 12. r. of King John's Charter viz. Tenants c. ib. l. 25. r. Nocton