in King John 's Charter London and other Cities and Burghs were to be Assessed and Taxed by the Common-Council of the Kingdom And he makes a reason of that provision to be the usage in the time of H. 2. for the King to Talliate or Tax them without such a Council The Doctor has doubtless the most particular convincing way of reasoning of any man he says that Law in King John 's Charter intended to restrain the King from levying of publick Taxes without publick consent And the reason of this Artice in King John 's Charter is Argument sufficient to prove it for mark the weighty reason H. the Third after this was granted and Edw. 1st taxed their Demeasns through England though not the whole Kingdom by Advice and Consent of their Privy-Councils only until the Stat ' de Tallagio non concedendo That is as Tallage is confest to be a Publick Tax because some of King John's Successors Tax't their Demeasns 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 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 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 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 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 liberè tenentes besides Barons were the Tenents in Capite who by their Acts oblig'd all that held of them by Knights Service that is all the Milites but not the liberè tenentes We are taught that in the 6 of King John Tenents in Capite only 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 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 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 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 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
the word Comitatus that is as he renders it all the Lands in the Counties and yet that besides whole Counties he gave a great proportion of Lands in them But since he taxes what I lay for the foundation of my Essay for precarious let 's see a little whether he does not render his own so where it opposes mine His whole Book in that respect resolves its self into these three Heads 1. That King John's Charter in affirmance of the Law imposed by William or 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 to compose the Great or General Council 3. That none but Tenents in Capite were Nobles 1. If he himself yields that till King John's Charter there was no such Council as one made up only of Tenents in Capite he thereby renders all under this head precarious but this he does in two places at least One where he urges that if the Curia Regis Ordinaria which I say was the Court of the Kings Tenents and Officers exclusive of others went off by reason of the Clause in King John's Charter it certainly went off before it began that is such a Court began not before and agreeable to this he says that after the granting of this Charter by King John there were many General and Great Councils or Colloquiums summon'd by Edict according to the form there prescribed that is as he will have it after that the Tenents in Capite only were summon'd to the Great Council but not before for then began this form In another place though he charges upon me what are his own words he says King John resigned his Crown the 15. of May in the 14th of his Reign 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 but that after that more than such were Members 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 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 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 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 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 who if he will hear their unbyast Testimonies will inform him whose are the groundless and designing interpretations But I must confess they are so weak that these sacred things need very little help to rescue them 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 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 II. 3. and if others were after 't was by Usurping upon the Rights of Tenents in Capite who and not others when the new Government was set up 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 10 H. 6. c. 2. which gave no new power and the Lords depend upon the Kings pleasure Therefore what the design is 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 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 not 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 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 they were impowr'd to consent to what de Communi Consilio contigerit ordinari 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 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 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 nighly 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 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 or past by at the Kings pleasure and that if the King pleas'd he might Summon one Knight for a County 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 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 than that of exposing Mr. Petyt and me the one for Artifice unhandsom 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 meets 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 Versa every Great Council such as that call'd to York is a Parliament FINIS Against Jani c. p. 1. Ib. p. 113. and 114. Jani c. p. 26. Quid a new Paragraph He adds such to Cases to render it obscure Jani c. p. 26. Na. So if a sum in gross were laid upon them Viz. To such payment as Tallage Against Jani c. p. 113. Indeed he would take in more places Na. the King did perhaps require a certain sum after a general Ordinance made by