Brothers Pater eorum tenuit T. R. E. hold Stoche 5. Godwin holds Draicote Ipse mater ejus tenebant T. R. E. 6. Aldwi 7. Brismar 8. Alwerd 9. Donno 10. Huscarle 11. Osmer 12. Eldred These hold several parcels of Land Devonshire Devenescire 1. Colwin holds Chelesword Ipse tenuit T. R. E. 2. Godwin holds Curemton 3. Edred holds a Furlong of Land in Bicheford 4. Alward holds Colsovenescote 5. Ausgot holds Madone 6. Donne holds Niwetone 7. Alwin holds Midelcote 8. Edwin holds Buterlei 9. Vlf holds Wadeham 10. Algar holds Chevendestone 11. Alric holds Wasberlege 12. Aluric holds Essaple 13. Lewric holds Betunie 14. Saulf holds Dunesford 15. Alveva holds Lacobescherche 16. Alfhill holds Chenudestane Buckinghamshire Bockinghamscire Ipse tenuit T. R. E. 1. A certain Splay-footed man holds Eurifel in Frankalmoign 2. Lewin holds one Hide in Wavendone 3. Lewin Cawra holds in Boneston Hund. 4. Chetel holds in Moslai Hund. 5. Godric Cratel holds in Mideltone 6. Suarting and Herding two Brothers hold Lands in Cotehale Hund. Oxfordshire Oxenefordscire All the Burgesses of Oxford have in Common without the Wall Pasture yielding 6 s. 8. d. The County of Oxford pay the Rent of the three Nights that is fifty pounds for Lands they hold 1. Theodoric the Gold-smith holds one Hide in Nortone and two Hides and half in Welde these Lands his Wife held freely T. R. E. Staffordshire Statfordscire Terra Chenwin aliorum Tainorum Regis 1. Chenwin holds of the King three Hides in Codeshale Ipse tenuit T. R. E. 2. Dunning holds Chenestone 3. Alric holds Stagrisgeshowe Ipsi has terras tenuerunt T. R. E. 4. Aswold holds Chrochesdene 14. More hold Lands of Titles prior to King William's amongst which the Earls Hugh de Ferriers and Alberic de Vere the first of which held St. Warburgh of Chester in the time of the Confessor Notinghamshire Snotingham-scire 2. Elwin and Vlviet held one Carve of Land in Osbernestune now Swan and Vlviet hold it 5. Aluric Buge and Vlchet did formerly and now do hold Lands there Yorkshire 1. Swen 2. Vlf. 3. Turchil 4. Chetel 5. Ramechil 6. Ravenchil 7. Torchil 8. Game 9. Osward 10. Tored 11. Torber 12. Vctred held several Lands in the time of King Edward as in the time of William the First Besides several dispossess'd who have their Titles allow'd Lincolnshire Lindesire 2. Sortebrand and Chetelburn hold several Lands 3. Godrie holds four Oxganges which were Agremund's his Fathers Glocestershire 1. Chetel holds one hide and â—ne Rood in Wenrick Glocestrescrie 2. Osward holds Redmertone Ipse tenuit T. R. E. 3. Edric the Son of Ketel holds â—andintone 4. Eddiet holds Bichemerse Pater ejus tenuit T. R. E. 5. Brictric holds four hides in â—achamtone 6. Alwold holds Pignoscire 7. Edward the Son of Reinbald olds Aldersnude 8. 9. 10. 11. 12. Elsi Dous Brictric Edric the Son of Cheâ—el and Madoch held Lands as 〈◊〉 the former King's Reign Herefordshire Herefordscire 1. Edric holds Last 2. Elmer holds half an hide of the King Ipse tenuit T. R. E. 3. Osborn the Son of Richard holds Mildetune In these 15 Counties Vid. Spelman tit Domesday of thirty describ'd in Domesday besides others left â—ut of this Survey as Northumberland Westmerland the Bishoprick of Durham and Lancashire except some part of it be taken into Yorkshire or Cheshire the City of Oxford and the Shire which held Lands in their Publick Capacity several omitted through neglect and others on purpose as I before observed there are above one hundred anâ— eighty Free-holders who derived noâ— under King William's Title and besides the Generality whose Titles are not exprest many of which however were of English names SECT 2. OUr wise Author supposes that King William gave all the Land of the County of Cheshire to Hugh de Abrincis Against Mr. Petyt p. 29. his Kinsman and a Norman and wisely ask'd Whether this was all Crown Lands The pretended Proof of this he brings in another Book So that for a long time we must rely upon his Mastership's Authority Against Jani c. p. 15. But this is his Demonstration In Domesday-Book after 't is said what belongs to the Bishoprick Totam reliquam terram Comitatus tenet Hugo Comes de Rege cum hominibus suis. But I can find no greater matter in this than that under the King he was chief Lord of â—â—e Fee But the gift of the whole â—ounty generally implies not any thing â—ore than the Government of it â—hus whereas he would have it that the â—eatest part of Shropshire was given to Roâ—r de Montegomerico Against Mr. Petyt p. 29. Scyropesberie Domesday sayes â—e had the City of Shrewsbury tot â—omitat and the whole County But â—hat is soon explained torum Domiâ—ium quod Rex Edwardus ibi habebat cumâ— 2 Maner quae Rex ipse tenebat and the â—hole Power or Right to Govern it which King Edward had there with â—â—elve Mannors which the King himself â—eld And this was all the Land that was given but could not be the greatâ—st part of the County Farther Cheshire Domesday for Cheshire Leofwick King Edward's Brother had it before in the â—ame manner as Hugh had And sureâ—y neither he nor his Brother conquer'd â—he whole County nor had Ed. the Crown â—y Inheritance And Lupus having it in â—he same manner that Leofwick had it beâ—ore 't is evident that this County was not held under the Feudal Law brought â—n by William Besides to shew that the Earl had â—ot the whole County 't is manifest there were many great Proprietors there as Earl Robert who held Westone Râ—chard de Vernon who held Estime Gislebeâ—â— Venables whose Family continues at thâ— day But indeed the Estate is in an Heâ— Female and several others some 〈◊〉 which for a long time enjoyed thâ— Dignity of Barons which Dignity think is not yet extinct there SECT 3. WHereas this Friend to the Engliâ—â— Nation for so doubtless hâ— has rendred himself would impose up on us Against Mr. Petyt p. 43. as if the English had neither Estate nor Fortunes left and therefore it could be no great matter to them by what Law Right or Propriety other men held theiâ— Estates I have already made it evident thaâ— they had Estates and Fortunes left shall now shew that they claimed their Rights and had them allowed according to the Antient Law And before I come to this or rather in Confirmation of it I must observe that even lesser lawful Customs thaâ— those whereby the Descent of Estateâ— was preserved were continued after the reputed Conquest thus in the Burrough of Wallingford in Berkshire Domesday were Consuetudines omnes ut ante fuerant All the same Customs which were there before so you shall find numerous Instances of the same Services from the Lands or Houses
and gives a Cell Lands and Tenements for a Prior and five Monks in Spalding Wulketul Abbot of Croyland Indulphi Hist. fo 902. commences his Suit for this in Curia Regis all the Normans being confederate together justifie and approve of the Depredations Oppressions Slaughters and all other Injuries committed by Yvo Talbois against the Croylanders and as in the body of Behemoth one Feen is joyned to another they refute the Truth And that which added to the Heap of the Calamity of Croyland was the cruel beheading of Erle Walden of Croyland who was very kind to all the Religions and was chiefly the best and most worthy Friend to the Monastery of Croyland and although Arch-bishop Lanfranc his Confessor asserted that he was free from all Faction and Conspiracy and if he died in the Cause that he would be a Martyr yet his most impious Wife thirsting after another Marriage and therefore most wickedly hastening the Death of her Husband Also some Normans gaping after his Counties of Northampton and Huntington According to our Author he had all the Lands of these Counties whereas the King had some especially the Anjovin Erl Yvo Talbois thirsting for his Blood being most greedy for his Lands and Tenements which were very many in all the Counties of England the innocent and harmless man is martyr'd at Winchester the day before the Kalendâ— Here we see they were forc'd to accuse him of Faction and Conspiracy or Rebellion that the Lands might be forfeited to the Crown and they might get them for their good Service Our man of mighty Vndertakings thinks to set aside Edwin of Sharburn's Evidences and exposes the Credulity of his Friend Sir William Dugdale whose Obligation for leading him the way in his Origines Juridiciales he has returned to the purpose because he tells us Sharnburn's name is not to be found in Domesday book or the Conquerour's Survey and the Owners of Sharburn which are there only to be found are William de Warennâ Odo Bishop of Bajeux Bernerius Arbalistarius and William de Pertenac 'T is not material that they are reputed Owners since Sharborn had the King's Mandat p. 25. and possibly might not have the Possession restored till after this Survey 2. Often only the chief Lords of the Fee are named though not all the Proprietors under them 3. Though we find not Edwin of Sharburn we find in the same County Edwin a Proprietor and Lord of a Mannor with a mesne Lord under his Bailiwick and Care though not holding of him Sislanda tenuit Ketel liber homo Edvini commendatus tantum pro Manerio duo Car. Ketel Edwins Free-man held Sisland within his Bailiwick only for a Mannor and two Carvs of Land Now 't is very obvious that there were great Proprietors whose Christian Names only were mentioned in Domesday book They are frequently named without their Additions to be sure not all the Addition by which they were known to instance in Edric cognomento Sylvaticus this Sirname of his is not to be found there as I take it and yet he kept great Possessions which he had of a Title prior to William's Eo tempore Florentius wigorniensis extitit quidam praepotens Minister Edricus cognomento Sylvaticus cujus terram quia se dedere regi dedignabatur Herefordenses Castellani Ricardus Scrob frequenter vastaverunt sed quotiescumque super eum irruerant multos è suis militibus Scutariis perdiderunt At that time there was a certain powerful Officer Edric whose 〈◊〉 was Silvaticus whose Land because he scorn'd to yield to the Conquerour the Castellans of Hereford and Richard Scrob often wasted but as often as they fâ—ll upon him they lost many of their Souldiers and Tenants by Knights Service Hitherto he had kept his Lands and a little after we find the King and him reconciled 〈…〉 Vir strenuissimus Edricus cognomento Silvaticus cujus supra meminimus cum Rege Gulielmo pacificatur And soon after this he accompanies the King to Scotland but if the Dr. finds him by this Addition in Domesday book I will allow him to be a man of a very sagacious Invention p. 26. 4. We find whole Counties left out of Domesday book and therefore admit Edwin were not there 't is not strange that he though a Proprietor should be omitted if it were only through the Influence of Erl Warenn Notwithstanding the Exceptions taken to what he calls the famous Legend and trite Fable of Edwin of Sharnborn he himself confesses that he had the King's Mandat and so this Plea was allowed in the very Instance which he thinks to be on his Side How idle is his note on the Margin of p. 24. against Mr. Petyt Against Mr. Petyt c. p. 19. Can any man forfeit his Lands to a Stranger a Conquerour that could not pretend Title but by Violence and Conquest As if a Conquerour could not make what he pleas'd a Forfeiture and were not the more likely to use Rigor for being a Stranger having no Tyes of Familiarity or Blood besides will not a Conquerour pretending an Hereditary Right make them who oppos'd it forfeit And it shall be taken for just too by them who acknowledge his Title Noâ— is there more to favour his Fancy that King William by giving away the Lands of Great men nay whole Counties or the Government of them thereby defeated the Inheritance or lesser Rights of those who held under them As if for the purpose the King should grant away the Estate of the Lord Stafford which if any were left in him after any Settlement was really forfeited thereby all that had Leases under him or any other Interest were wholly divested which were to make the Attaindure to reach farther than the Blood SECT 6. BUT because our Author is a very sagacious Person for Informations sake I am bold to ask him some Questions occasioned by Domesday-book In Andover Hundred Sorry Rex tenet in dominico Cladford de feudo Rogeri Comitis If this had been the King 's own Feud 't would have been Rex habet de feudo â—uo as we find Robert de Statford had thirteen houses De honore Comitum de feudo suo Wherefore Quere whether all the Lands of the Kingdom were held mediately or immediately of the Crown What thinks he of Est de regno Angliae â—on subjacet alicui Hundredo neque est in consuetudine ullâ So in Surrey Non adâ—acet alicui Manerio or as elsewhere Fuit posita extra Manerium or such an one is commendatus homo to another Glos. tit commendare who if we believe Sir Henry Spelman â—wore no Fealty and held not by any kind of Tenure What of Nunquam geldavit or geldum dedit nec hidata fuit or distributa per Hidas What of potuit ire cum terrâ quo voluit â—otuit se vertere ad alium Dominum Which I should think argued Freedom from the Feudal Law
And what of Tenet in alodium de Rege Tenent modo 4 Alodiarii and the like which to me seem of the same kind with the former What of this which methinks destroys all his Whimseys That under the Title of Terra Tainorum Regis such as he will tell us held by Barony we find several men holding in Alodium of the Seizin of their Ancestors To instance only in one Edulf tenet de Rege in Alodium unam mansuram in Mortelhante pater ejus tenuit Spelman's Glos. tit Alode Such as he were Socmen or Tenants in Free Socage And indeed we are fully resolved of this Question in his incomparable Glossary Glos. p. 29. the Alodiarii or Socmen liberi homines thaâ— were Possessors of small Parcels of Landâ— but of what Quality and of what Interesâ— in the Nation Dicat Apollo were the same with Milites and with Thayns The Free-men there ib. p. 30. or Tains Thegnes which are said to possess Mannors Towns or great parcels of Towns verâ— many whereof are found in the Countieâ— bordering upon Wales with this Addition Et liber homo fuit or potuit ire quâ— voluit were the same with Milites and Liber homo attributed to such Possessors was the same with Miles In Confirmation of the Truth hâ— speaks by chance Bollo Presbyter tenâ— Mapledore ipse tenuit cum aliis septeâ— Tainis T. R. E. Bollo a Priest hold Mapledore he held it with seven otheâ— Thayns in the time of King Edward sâ— that an ordinary Mass Priest was a Thayâ—â— So ten Thayns held but one Mannor deâ—em Taini tenent Chemedecome In Cheshire Waldestrich Hundr some Thayns did Villain Services Omnes Taini dicti manerii haâ—uerunt consuetudinem reddere undecim or as denariorum de unaquaque carucatâ terrae faciebant per consuetudinem domos Regis quae ibi pertinebant sicut Villani Nay we find a Thayn In Bochinghamshire Azor ' s man or Feudal Tenant much more was a free Tenant one that could quit his Lord when he pleased Sigelei Hundr Ulchetone hoc M. tenuit Azor filius toti Teignus Regis Ed. alter Teignus homo ejus Tainus But if such Thayns as these were obliged to attend the King in his Wars were numerous and considerable 't is not probable that they were bound by the Acts of Tenants in Capite it may not be impertinent to shew some of the vast number of Knights who held of Subjects I purposely as elsewhere leave out the Church with it's Tenants Under the Earl of Arundel Lib. Rub. in Scaccario in the time of H. 2. Sussex Pettewrtha holds two and twenty Knights Fees and an half Garinges eleven Holnoc twelve Under the Earl de Augo in Rapa Hasting Matthew de Burlin holds ten Knights Fees Robert de Ricarvele ten Richard the Son of William holds fifteen Knights Fees of Richer de Aquilâ In Cornwal Robert the Son of William besides fifty one other Knights Fees which perhaps he held of the King holds twenty of Walter Hai. Richard de Lucy holds of the Feud of Ode Malherb nine Knights Fees Under the Earl of Glocester Jordan Sorus held fifteen Knights Fees Robert de Charâ ten five others held ten and four nine Knights Fees Hugh de Bolbech owes the Earl the Service of twenty Knights Buckinghamshire Here are above 170 Knights Fees not held of the King and yet I doubt not but the Owners were to attend the King in his Wars something agreeable to the Custom within the County of Worcestershire Wirecestrescire in Civitate Wirc c. Quando Rex in hostem pergit siquis edicto ejus vocatus remanserit si ita liber homo est ut habeat Socam suam Sacam cum terrâ 〈◊〉 possit ire quo voluerit de omni terrâ suâ est in misericordiâ Regis cujus cunque verò alterius Domini liber homo si de hoste remanserit dominus ejus pro eo alium duxerit 40. solidos Domino suo qui vocavit emendabit quod si ex toto nullus pro eo abierit ipse quidem domino suo 40. solidos dabit dominus autem ejus totidem solidis regi emendabit When the King goes against the Enemy if any body call'd out by his Writ stay'd at home if he be so free that he has Suit and Service of Court and can go with his Land whether he will he is in the King's Mercy for all his Land but whatever other Lord's Freeman he is if he stay from the Enemy and his Lord hire another for him he shall forfeit 40. Shillings to his Lord who called him out But if no body at all go out for him he shall give his Lord 40. Shillings and his Lord shall forfeit as much to the King This I take it as to the Obligation for Attendance differs not from St. Edward's and William the First 's provisions for Arms Henry the Second's Assize and the Statute of Winchester this only adds a particular Penalty all which together Animad on â—an c. so 17. espâ—ially Domesday-book manifestly contradict his Legendary Tales about King William's governing the Nation as a Conquerour Against Mr. Petyt p. 29. And if the intended History of the Conquest which has taken him up above these ten years as I have upon better Information than he had my not having seen above two of the Original Records which I cite be suitable to this marvellous Essay 't will make a bulky Legend CHAP. III. A Property prov'd by Record to have continued from within the Reign of the Confessor to the 26. H. 3. Besides Pictaviensis and Knyghton on our side ADditional to the Testimony of Domesday book I shall produce a Record as late as the 26. Hen. 3. which shews That a Property was continued in the English from before the Reign of the Norman Prince to that very time and gives Credit to the Authors who tell us that this Prince did not govern as a Conquerour Pro Jacobo Archamgere Rex Baronibus Communia de term Sancti Mich. 35 fin anno 36 incipien H. 3. Rot. primo Penes Remem Domini Thes. mandamus vobis quod occasione arrentacionis Serjantiarum assessae per Robertum Passelewe non distringas Jacobum de Archamgere per 2 Marc. dimid de tenemento quod de nobis tenet per Serjantiam in Archamgere Serjantia tempore Edw. Confess in Comitatu Southampton c. per Cartam beati Regis Edwardi antecessoribus ipsius Jacobi super hoc confectam sed ipsum Jacobum de predictis 2 Marcis dimid quietum esse faciatis in perpetuum quia Cartam prefati beati Edvardi confirmavimus ipsam volumus inviolabiliter observari Breve est in forulo Marescalli mandatum est Vicecomiti Southampton comparat die Jovis die 15. Jan. Anno Domini c. The King to the Barons We command you that by occasion
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
common Intendment is meant of coming as Members in their own persons Against Jani p 4. and when they agreed to it which was no abridgment of their personal right they came by Representation and Election and every one was there himself virtually by his Deputy but they often met in vast bodies and in capacious places both in the Saxon times and after William the First obtained the Imperial Crown 1. If you 'l believe the Chair all this is precariously said Against Jani c. p. 89. without Foundation or Authority however 't is granted that I seem to back it with an instance where I say The whole body of Proprietors were assembled at Runemede between Stanes and Windsor at the passing of King John's Charter The Doctor refers us to p. 106. and 107. of his pretended Answer to Mr. Petyt to see what this Assembly was and of whom it consisted where he proves my Assertion being all that he there shews is that there was not time for Writs to issue to chuse any Representatives of the Commons but not a word offer'd against their being there in their own Persons having been got together expecting the Kings Answer to their Demands who appointed a meeting at Runemede Rot. Pat. 17. Joh. pars unica m. 13. n. 3. ib. m. 23. dorso The Record saith there were Comites Barones liberi homines totius regni or according to that Expounder of more fallible Record Ma. Paris Against Mr. Petyt p. 183. p. 127. in Marg. there were the Magnates which must there be meant of the Nobilitas Major unless you take them for the Kings friends only as the great men of the Kingdom elsewhere these Magnates had drawn to their side and to that treaty Vniversam fere totius Regni Nobilitatem Ma. Paris fo 244. and this Nobility was so numerous that they made a vast Army exercitum inestimabilem confecerunt and the Records not only shew that such as were but liberi homines were there and parties to the agreement being inter Regem Comites Barones liberos homines but the body of the Charter shews that Tenents by other free tenures besides Knights service were interested in it Besides this the frequent meetings in so wide a place as Runenede call'd Pratum Concilii as I observed in the same page is a strong Argument that vast bodies compos'd the great Councils in those days and why Tenents in free Socage were not Members as well as such as held of Subjects by Knights service I see no reason but wait for the Doctors In the mean while I shall present him with some other Authorities which shew that my Assertion was not precarious 2. If in the 38th of H. 3. the Commons or probi homines were Members of the Great Council by Representatives of their own choice and degree there being besides all the Tenents in Capite two chose for every County Jani c. p. 244. Vide amongst other Authorities Vice omnium Singulorum and yet such came in their own persons both before and after the making of King John's Charter since which till the 48th or 49th of H. 3. no alteration in the way Jani p. 51. 57 58 59 60 61. 66. 214. 248. or right of coming is supposed then it follows that Representations were brought in when the Commons who might have come in their own persons agree to it and there being of the Councils before the Norman times and then Barones populus 't is not to be doubted but that they came in their Persons if they would both in the Saxon and Norman times especially since William the First did but confirm the Law of the Confessor concerning the power of the Great Council Rex debet omnia ritâ— facere in regno per judicium Procerum Regni Leges Par. Ed. in words that shew'd that all the Members were in those ages stiled Peers such as might come in person and that inferior Proprietors were Members the Law of the great Folâ—mote then received proves beyond all dispute 3. If besides Barones Jani c. p. 241. and Milites we find Libere tenentes or Fideles in the account of Great Councils before 49 H. 3. we are to suppose Against Mr. Petyt p. 112. even without Consideration of the Capacious places of their Assembly The free Tenents in Scotland and the Possessionati in Poland us'd to be Members of their great Councils without Representation and the multitudes there that such Proprietors of Land as would came personally till a Law or common practice to the contrary be shewn it being according to their natural right and the natural import of the words besides the Doctor does not allow of Representations except the Tenents in Capite who came without Election Jani c. p. 248. p. 66. were Representatives of the rest 4. If King John's Charter does not exhibit the full form of our English Great Jani c. throughout and most general Councils in those days but by continuing the rights of every particular place leaves room for Proprietors of Land to have been Members as well as Tenents in Capite then the libere Tenentes which many Records before the supposed change in the time of H. 3. mention as Members of the Great Councils were not Tenents in Capite And as Tenents in Capite came in their own persons for matters concerning their Tenures So unless the contrary can be shewn we are to believe that the libere tenentes not holding in Capite came in like manner especially if we consider how mean were some of the Majores Barones to whom special Writs were to be directed as he that held part of the Barony of Mulgrave Communia de Term. Mich. An. 39 E. 3. Rot. 36. penes Rem R. in scaccariâ— per servitium millesimae ducentesimae partis Baroniae Nay I find Norman Darcy who indeed held several parcels of the Mannor of Darcy which seem to be by several purchases amongst other shares holding Centessimam partem Centessimae Sexagessâ—mae partis Baroniae Penes Rem Regis in scaccario de Term. Pasche 29 E. 3. Lincoln de Re. Brook tit exemption The hundreth part of the Hundred and sixtieth part of the Barony and yet that he who had only so much was Baro Major appears in that the Common Law exempted him from being of a Common Jury as holding part of a Barony Besides the Doctor yields that more than such as are expresly mention'd in the contested Clause Tenents in Military service of King John's Charter viz. of Tenents in Capite were Members of the Great Councils which he does not always confine to the great Tenents and some of these were as inconsiderable and as unfit for Counsellors as the generality of the libere Tenentes for though he in his sixteen years search Against Mr. Petyt p. 41. could find no less a part of a Knights
Jus Anglorum ab Antiquo OR A CONFUTATION OF AN Impotent LIBEL Against the Government BY King Lords and Commons Under pretence of Answering Mr. PETYT and the Author of Jani Anglorum Facies Nova WITH A SPEECH according to the Answerer's Principles made for the PARLIAMENT at OXFORD Ne Sutor ultra crepidam LONDON Printed for Edward Berry in Holborn-Court in Grayes-Inn 1681. THE PREFACE THere was a Book lately publish'd against Mr. Petyt and my Self which not only treats us with Pedantick Scorn like those that are to Cap the Author within his Colledge but its seems to trample on the best Constitution our Government it self under Colour of its being New in the 49th of Hen. 3. Against Mr. Petyt p. 110. when it arose out of the indigested Matter of Tumults and Rebellion and so not having a Legitimate Birth as not born in Wedlock between the King and his People it may be turn'd out of Doors by the Help of that Maxim Quod initio non valet tractu temporis non convalescit How can a Bastard become a Mulier The Treatise which was to prove the Fact Against Jan. c. p. 1. Matter of Fact only was cried up for unanswerable and perhaps 't was imagined that there was no possibility left for a Reply since the Writer who has render'd himself famous in his Generation as if he knew better how to manage a Design than an Argument pass'd it about only to such Hands as were obliged by Promise if not by Principle to conceal it But Mr. Petyt and my Self having by Accident seen bis Book and observed some Heads which we intended to expose to the World At last out comes the happy Birth yet 't was hoped that by that time there might be Proselytes enough to defend it with Noise and Acclamations and Contempt of all Opposers Records Ancient Historians and our Ancient or Modern Lawyers Though generally in a Matter of Argument we ought to leave to the Reader the Censure of what we think we confute without remarking how absurd or criminal it is yet when such Reflections are almost the only Arguments on the other side and they when pronounc'd tanquamè Cathedrâ must have some Authority 't is fit that even these trifles should have their due provided they be answered with Decency of Expression And we know in what manner the Wise Man advises us to answer some People I should have been glad if this Author'â— Civility had obliged me to treat him at another Rate than I do since I delight not iâ— this way nor think thereby to please such Readers as I would court to be Judges between us But why should I Apologize for the managing of this Controversie in a way wholly New to me Since the severest Expressions are but retorted and transcrib'd from our Answerer's Original and indeed it may well be an Original for 't is without Example If in any thing I seem intemperate I may say with an Author well known Excess of Truth has made me so Our Author 's very Notions are Satyrs upon themselves nor can any thing more expose a Man than a seemingly Gigantick Endeavour to remove the fix'd Stars the Lords from the Firmament where each shines in his setled Station and to take from the Commons of England that Spot of Earth which they enjoy and tread on While the Sons of Titan lay Pelion upon Ossa one Mountainous Fiction upon another the Mountains have a quick Delivery and bring forth Confusion to the Giants What has been the Product of his many Years Labours I think may be shewn in Miniature under these Heads 1. That the Norman Prince against his reiterated Promises and against the great Obligation of Gratitude to those of the English who assisted him Against Mr. Petyt p. 29 30 31 32 33 34 35 so p. 176. took away all their Lands and Properties and left them no Right or Law 2. That from the Reputed Conquest and long before under the British and Saxon Governments to the 49th of Henry the Third None came to the Parliaments or great Councils of the Nation where Life and Fortune were disposed of but the King 's immediate Tenants in Chief ib. p. 39. by Knights Service 3. That even they came at the Discretion of the King and his Council ib. p. 79. 228. ever after the 49th 4. That the House of Commons began by Rebellion in that very year ib. p. 210. 228. 229. nay and the House of Lords too 5. That the Constitution of the Lord's House ib. p. 227. 228. 229. consists at this very day in the King 's calling or leaving out from special Summons to Parliament such Earls and Barons as he pleases 6. That by vertue of the New Law imposed upon the People p. 29. by the Conquerour p. 39. none within the Kingdom were Free-men or Legal men but Forreigners who came in with him being such as nam'd and chose Juries and serv'd on Juries themselves both in the County and Hundred Courts who were all Tenants in Military Service None surely but such as read without observing any thing whose Books can't beat into their dull Brains common Reason and who never were acquainted with that excellent Comentator'â— practise will think that I need set my self to argue against every one of these ' Tâ—â—ll be enough if under those Heads which I go upon to destroy his ill laid Foundations I prove them upon him for most of them confute themselves Truly I cannot but think Mr. Petyt and my self to have gone upon very good Grounds since they who oppose them are forc'd to substitute in their Rooms such pernicious ones as would render the Foundation both of Lords and Commons very tottering and unstable Not to mix Lords and Commons together I will endeavour to do right to the dignity of that Noble Order and their Interest in Parliament apart from the other The Constitution of the House of Lords our Antagonist as I shall shew will not allow to have been setled till after the time of E. 1. if it be yet Whereas for a short Answer to his new Conceit the Earl of Norfolk Rot. Parl. 3. H. 6. n. 12. p. 228. in the third of H. 6. lays his Claim to and has allowed him the same Seat in Parliament that Roger Bigod his Ancestor had in that great Court in the time of H. 3. And though on the side of the Earl of Warwick his Competitor 't is urged that the Earl of Warwick had the Precedency by King H. 4◠〈◊〉 Commandment 'T is answered Yat Commandement yave no Title ne chaungeth not the Enheritaunce of the Erle Mareschal but if or unless hit hadde be done by Auctorite of Parlement And if Precedency were a setled Inheritance which could not be alter'd but by Act of Parliament how can a fixt Right of coming to Parliament be taken away otherwise Though our Author supposes it to be at the meer Will and Pleasure
shew their Indignation at their own and their Teachers Credulity 'T would be Vanity in me to run the Parallel between our Author 's Magisteriaâ— Assertions and my Proofs but he glories much in taking all from the Fountain head of Original Records whilst I truly am thankful to those Friends that communicate to me Transcripts so faithful that even he himself cannot pick an Hole in any of them The Records of the Tower and of the Exchequer I gratefully acknowledgâ— to have been received from the beneficial Industry of my ever honoured Friend Mr. Petyt and the true Copies of Dooms-day Book are owing to the worthy Knight Sir John Trevor and to the learned Gentleman Mr. Paul Bowes of the Temple whose Father was Executor to the indefatigable Antìquary Sir Simon D'Ewes And surely no man need be ashamed of such Assistances Thus like the old Roman accus'd of â—nriching himself by ill means have I â—rought before my Judges the innocent Inâ—truments of my small Improvements Is â—here Witchcraft in any of these A CONFUTATION OF AN IMPOTENT LIBEL Against the Government By King Lords and Commons Under Pretence of Answering Mr. Petyt and the Author of Jani Anglorum facies nova Ne Sutor ultra crepidam The INTRODVCTION 'T IS doubtless a brave thing to attempt heroick Mischief to insult over the Ruines of a well framed Government at least though but in Appearance to venture upon the Design of altering it with Jesuitical Boldness how much soever is wanting of their Subtilty Fame is as careful to preserve the Memory of him that burnt as of him or them that built Diana's Temple nor is Mr. Petyt more likely to live in the Records of future Ages for giving new Life and Lustre to so many of the past than our State-Physitian for poysoning those sacred Fountains with his Exotick Drugs 'T is not to be doubted but late Posterity will admire the excellent Composition of that Clyster whereby he would purge the Body Politick from the Chronical Disease of Liberty and oppressing Load of Property Since he has thought fit to Out-Law all the English and to give them Lupina Capita put them out of all Protection and Security he must not look for much Respect towards his voracious Cubs which like the Cadmean Crue were born fighting with one another they would like Phoraoh's lean Kine devour the Fat of the Land and must needs require a great deal of Nourishment since they have so long been floating in his watry Brain without any substantial Food Indeed he himself in great Measure played the Executioner upon his own Follies and condemned them for some time to the dark being as he says in his Letter to a noble Peer Doubtful whether they should be published as is usually done by unlawful Births he endeavoured to stifle them but finding it not improbable that they might with Justice be represented as dangerous and monstrous he has let them live to his Reproach CHAP. I. That he mistakes the Question and contradicts himself to the yielding the whole Cause nor is a greater Friend to Parliaments than to common Sense IF notwithstanding all this huffing Author's mighty Bustle I evince 1. That he mistakes the Question 2. That he contradicts himself and that sometimes to the yielding up his Cause What will the World say of his Knight Erranty in Antiquities and noble Design to rescue the Virgin Truth from the enchanted Castle of groundless and designing Interpretations P. 1. Against Mr. Petyt for himself to deflour her I must be excused if some of his Contradictions are suffered to fall in here since I can hardly represent any Notion of his without them but I will keep all out from hence which relate not to his Mistake of the Question SECT 1. THE Controversie between us is of Right whether or no the Commons such as now are represented by Knights Citizens and Burgesses had Right to come to Parliament any way before the 49. of H. 3. except in the fancy'd way of being represented by such as they never chose Tenants in Capite by Military Service Mr. Petyt in my Judgment proves that Citizens and Burgesses had Right to come by Representation and I that Proprietors of Land as such had a Right to come in Person before that The Fact is used by both of us as a means to prove the Right Acts of Parliament as now called and King's Charters as of old are also insisted upon and even the Records and Histories produced to vouch the Fact are for the most part yielded us so that the Question upon positive Laws and upon Testimony is either whether Right can arise out of any Fact or else it is matter of Right and Reason what Sense ought to be put on the Words of the Witnesses to the Fact or any of them as is made out by an ordinary Instance Suppose a Witness in a Cause swears to a matter of Fact and his Credit is not denyed but the Question is in what Sense we ought to take his Words here Reason must determine the Fact by considering the Coherence of his Discourse and the several Circumstances which explain it And this we are taught His Glos. by our doubtful Oracle or rather by Apollo himself when 't is told us that the meaning of fideles c. is to be known from the subject matter yet Against Jan. Angl. facies noâ—a p. 1. for all this forsooth The Controversie is of matter of Fact only Indeed an Act of Parliament is matter of Fact if 't is disputed whether 't was made or no but if we argue that such or such is the Intendment of it we shan't try this by a Jury or any Judge of Fact And the Right which arises from thence is from the Meaning and the Reason of the Statute as well as from the Fact that it was made It will be said Why do you stand upon Niceties His meaning is no more than that he yields the Right if you prove the Fact But how can that be when he denies a Right even to his Favourites the Tenants in Capite though he supposes that de facto they came all along Tho they came before the 49 of Hen. 3. Yet the House of Lords and the whole Great Council was before that but an House of Lords was a new Constitution in the 49th of H. 3. and had it's Origine from that King's Authority Against Mr. Petyt p. 228. 229. p. 110. then a new Government And after that though de facto Lords came as Lords yet ever since the 49. H. 3. it was not out of Right for 't was at the King's Pleasure and so 't was with contracted Bodies of Tenants in Capite who prescribed to a Right from before the 49 and if they came were Lords for you must know no Commons then were ever at the Council But the King and his Privy Council might give them a present Right if they pleased or with-hold from any the Writ
Rich. 2. tells us out of Sprot and others though some would have us think that he took it only out of Sprot He himself tells us that even where he follows Sprot Quaedam superflua à compilatione dicti Thomae resecans quaedam notabilia suis in locis eidem addens ib. he not only cut off many things but added many remarkable Passages Thorne gives us a particular Account of Stigand's raising the men of Kent to â—ight for their old Laws and Liberties Thorne fol. 1786. which many others not being Kentish â—en would not mention lest their Magnanimity should upbraid the sudâ—en yielding of the rest This I take to have been between October and Christmas when he was â—rowned and that having entred into Treaty and concluded on Terms at London which however they tell us that â—e broke he went towards Dover Vt â—llam cum caeteris partibus comitatûs suae â—ubjiceret potestati It seems Dover was then the Strength of Kent and he thought by the getâ—ing of that he should be able to keep all that Country under Upon this Arch-bishop Stigand and Abbot Egelsine and all the great men of Kent perceiving that an ill Fate lay upon the whole Kingdom and that whereas before none of the English were Servants now Nobles as well as Plebeians were brought under the Yoke of Slavery represented to the People assembled together the misery of their Neighbours the Insolence of the Normans and the hardship of a servile Condition and animated them all as one man to a resolution of dying or maintaining their Liberties I know many learned men look upon this part as suspicious taking the Sense to be that there were no Villains in England Sylas Taylor of Gavel p. 167. in Kent especially before that time which they are at pains to shew that there were But I conceive the meaning of the words is no more than that there had ever been in England a Distinction between Free-men and Slaves and therefore that none of the English that is the People of the Land which the Law has ever confin'd to Free-holders they that depend upon the Will of others Villains or Servants being no Cives any part of the Nation in that sense ought to bear that Slavery which the Violence of the Normans threatned to all in common Nor wants there Authority for the Freedom of all the Kentish-men in the largest Extent for in an ancient Roll of the Customs of Kent Lambert's Perambulation of Kent 21 Ed. 1. 't is said to have been allowed in Eire before John of Berwick and his Companions the Justices in Eire in Kent the 21 of King Edward the Son of Henry that is to say that all the Bodies of Kentish men be free as well as the other free-bodies of England Lambert's Perambulation p. 632. And this confess'd to be true 30. Ed. 1. in the Title of Villenage 46 in Fitzherbert where it is holden sufficient for a man to avoid the Subjection of Bondage to say that his Father was born in the Shire of Kent The just value of this Freedom Thorne made all the Free-holders of Kent with all that depended upon them resolve to put a stop to William's Depredations At Swanscomb was their general Randezvouz and their numbers were so great that as the Norman Prince advanc'd he found himself hem'd in with an armed Wood for that they might secure themselves of his making no Escape so confident were they of Victory or forcing their own Terms every man by Agreement took a Bough in his hand to block up the way The Arch-bishop and the Abbot in the name of the rest told him that the whole People of Kent were come out to meet him and to acknowledge him their Leige Lord if they might enjoy their Liberties and Laws otherwise they denounc'd War and bid him Defiance Upon this William calls a Council of War and he finds it expedient to give them their Terms they knowing how he had used those who trusted to his Generosity or Justice took Hostages as well as gave and then in full Assurance of his Performance yielded him their County or the Government of it not all the Land and Property there and as what would secure the Government there to him resigned up the Castle of Dover To this Relation Perambulation of Kent p. 25. the great and faithful Antiquary Mr. Lambart gives sufficient Reputation Mr. Camden says Camden ' s Brit. Ut verè quamvis minùs purè in antiquo libro sit scriptum that no man before Sprot has told these Circumstances but he cites an ancient Authority which was a Plea not oppos'd and which could not be taken from Sprot in which he confesses the Substance of this to be contained and though not elegantly writ yet with Truth So that Mr. Camden is on our side being convinc'd by the truth of his own quotation Dicit Cantii Comitatus quod in Comitatu ipso de jure debet de ejusmodi gravamine esse liber quia dicit quod Comitatus iste ut residuum Angliae nunquam fuit conquestus sed pace facta se reddidit Conquestoris dominatui salvis sibi omnibus libertatibus liberis consuetudinibus primò habitis usitatis The County of Kent says that in that County of right it ought to be free from such a Grievance because it sayes that that County was never conquered like the rest of England But having made a Peace yielded its self to the Conquerour's Dominion saving to themselves all their Liberties and free Customes at first had and from that time us'd It seems in standing up for their own Rights they reflected upon the rest as an humble conquer'd People And indeed whereas it has past into a Maxim Nemo miser nisi comparatus No man's condition is unhappy thought But when into the Scales with happier men he 's brought On the other side men are apt to think their Happiness incompleat without comparing themselves with those whom they look upon as deprived of the Advantages which they enjoy Thus our late Author enhances the value he puts upon himself by the Contempt which he thinks his Adversaries deserve though in truth how low soever they lye he rises no higher but it may be disgraces his Mastership by the comparison But to return to the Men of Kent the generality of which how free soever they were Against Mr. Petyt p. 39. were by his Rule no Freemen of the Kingdom for all the Freemen of the Kingdom were Tenants in Military Service Feudalibus Legibus non 〈…〉 Spel. Glos. tit Gavel kind Which was of the Feudal Law whereas their Gavel-kind was exempt from it I can imagine no other Reason why they above others constantly maintained their old Laws and Customes than that they were a sturdy People more than ordinary tenacious of their Rights and sensible of the least Violation And possibly for a long time they retained the Power of taking Satisfaction upon
some of his Favourites who were Pledges for William's Performances Sure I am as far as my Authors can assure me after this Classick Writer has blasted their Credit I will not say with a contagious Breath he promis'd as largely to the rest of the Nation as he did to the People of Kent If the men of Kent had their Representatives at least at the Electing him to Rule over them and were not subjected to him as a Conquerour nor were their Lands parcell'd out by him though we are taught è Cathedra that he took away from the English their Estates and gave them to his Normans So that according to his Reasoning the Flemmings Against Mr. Petyt p. 35. Anjovins Brittains Poictorins and People of other Nations who made up a great part of his Army and came with him under considerable men their Leaders came out of stark love and kindness They though Adventurers with him being content he should gratifie onely his Normans Nay he divided all the Lands of the Kingdom amongst his great Followers even the Lands of those Normans who had Estates here before But if I say the men of Kent enjoyed their Right as abovesaid what Reason beyond what I have assign'd is there to think that it was otherwise with the rest in general some of which were Adventurers with him but all equally sharers in the extent of his Promise to maintain rectam legem Though he and some of his Successors chose Succession as the most honourable Title yet that he had none but Election is evident in that he was not Heir to the Confessor Domesday in Surry Acstede Goda mater Heraldi tenuit IRE In another place there called Soror Regis Edwardi but rather Harold was who was Son to Goda that King's Sister Nor could the Confessor and Harold lawfully set the Crown upon his Head without the Consent of the Kingdom Nor yet could he gain a Title by Conquest over those who vielded upon the Terms of enjoying their Laws and Liberties and who unless those Terms had been granted had both Right and Spirit too to have kept him from Reigning over them Abating the factious conspiring to set him up against Edgar Etheling who though he was not as now the Law is actual King before Coronation yet ought to have been crowned the People had sufficient inducement to chuse William 1. Because he was a Prince of a less Potent Nation and therefore would make an Accession to England and give them footing upon the Continent from whence they might spread the glory of those Arms which were reproach'd with that necessity of Self-defence which makes even Cowards Valiant 2. He was a Prince who had governed his own Country with great Prudence and Moderation Brevis Relatio Willielmi ad finem Syl. Taylor p. 188. nor would attempt upon that acquisition to which many Circumstances invited him without the Consent of his Senate there 3. Harold being dead they knew not any man so likely to defend them from those Enemies which threatned and molested them from abroad or that could better secure them from the Tyranny of many Masters at home and the Distractions which in all probability would arise from their Feuds and Competitions for the Crown which every one that could draw the Mobile 〈◊〉 him would be catching at till it was plac'd and setled Thus I think 't is made evident that William the first his Title was by Election and that the Election according to the infallible Rule was factious since how unanimous soever they might be at the crowning him Feuds and Factions wearied them into the Agreement more than the Force of his Arms but I shall not give him this Author 's obliging Epithetes 'T will be said perhaps if the Election be void then he is let into a Title by Conquest yet how can that be when the very Conquest or rather Acquisition whatever it were was by this means he being received upon Terms Foedus pepigit Besides if there were no Election then the People never yielded were never conquered And there was no more a Conquest of the whole Nation than an Election by the whole The actual yielding of some and tacit Concurrence of others made his Title SECT 3. That he makes a Title to the French King from the Acquisition of his Feudal Tenant the Norman Duke upon his Notion of the Feudal Law BY the Law of Feuds as he receives the Supposititious Sir Henry Spelman for so out of Reverence to his Memory I take leave to call the Second Part of the Glossary till 't is reconcil'd to Truth or till our Author who goes upon the same grounds makes them good Superior quisque Dominus Regulus agit in suos subditos Against Mr. Petyt p. 104. in rebus ad feodum suum pertinentibus ex ipso jure feodali jus dicit Every Superiour Lord Acts like a little King over those that are under him Little it seems for the number of his Subjects not the extent of his Power over them and in things belonging to the Feud gives Law even by the very Feudal Right that is to say is absolute In another place Consentire quisque videtur in personâ Domini sui Capitalis prout bodie per Procuratores Comitatûs vel Burgi 2 Glos. tit part quos in Parliamentis Knights and Burgesses appellamus Every Inferiour seems to consent in the person of his Lord as at this day we do by the Representatives of the County or Burrough which we in our Parliaments call Knights and Burgesses What no Citizens amongst them Truly I should think by the Comparison that a Legislative Power was delegated to the Lords of the Feud as there is it seems to the Representatatives of only the Counties and Burroughs but that it is Ex ipso jure feodali Further our State-Quack has it Glos. p. 7. As all their Estates arose from his Beneficence What if some purchas'd theirs So they depended on his Will Originally That is the Feudal Tenants ib. p. 4. all Vassals held their Lands at the Will of the Lord and whether they were Delinquents or not he might at his Pleasure take them from him When this rigid Law expir'd he does not vouchsafe to inform us however he yields the Substance of all in acknowledging that the superiour Lords gave Law or were absolute and represented or govern'd the Tenants in the Legislature till the 49. H. 3. To assume William was Feudal Tenant to the King of France and according to the Feudal Law long after his time King John was summoned to the French Court to answer for the Death of Arthur of Britain who was another Feudatory to the French King William himself was not only subject to the Feudal Law but thereby was as much under his Superiour Lords despotick Power in relation to what he got as the most inferiour Tenant William depended upon that King's Will his Dominion was forfeitable without any default
he was Leige-man to and received Laws from the French Monarch Though the Crown of England has always been imperial subject to none upon Earth yet he that wore it unless he were so free that he could go with his Land Potuit ire cum terrâ quo voluit whither he would which to be sure is inconsistent with this Feudal Law he could not quit his Dependance SECT 4. The Notion of the Feudal Right considered and the Right of Tenants in free and common Socage to come in theâ—â— own Persons to the great Councils shewn from thence BUT since the mention of Jus feodale as advanc'd in the second part of the Glos. ascribed to Sir H. Spelman occasions a little Consideration of the Feudal Law I out of a Zeal to clear his Reputation from the Charge of things false or frivolous and having at present no other Authority for his being the Author of it than ones who has an excellent Faculty of Storying except against what is there said to be ex ipso jure feodali as none of his 'T is there taken for granted to be the very Right of Feuds deriv'd from the Feudal Law that the Superiour Lord of the Feud should give Law jus dicere to them that are under him and 't is evident this is not meant of an ordinary Jurisdiction because by virtue of this 't is fancy'd that the Lords represented their Tenants in the Extraordinary at the great Councils and by the same reason the Assertion of a Judge censur'd in Parliament is justifiable viz. That the King is the only Representative But I must observe that this must be from Either 1. The general Law which guides the Feuds in all places where Feudal Law is received Or 2. The particular Feudal Law of England 1. Our Author evidently takes this in the first Sense being to prove what was the Feudal Law here New Glos p. 4. he cites the foreign Feudists who acquaint us with the Law of Feuds amongst them but this first Sense is not supposable in that this Law upon that account would be as much the Law of Nations as the Law for the Advantage of Embassadors wherever they come And this could not generally prevail but from the Authority of Catholick Reason that should require it but that I do not find since the Lord may have the Vtile Dominium which the Feudists speak of as incident to Feuds without the despotick Power and the end or nature of them being answer'd from whence will the Argument be brought that it ought to be so I will grant that it is not a Feud unless there be Utile Dominium for that distinguishes it from an Alodium which sometimes may yield no profit to any Superiour But those who well knew the Nature of Feuds teach us that 't was the Infancy of Feuds when they wholly depended on the Lord and could not stand without being supported by his pleasure then indeed which was before Feuds were spread into many Nations cragius de Feudis fol. 20. Nec servientibus aliud jus erat in his proediis quam precarium quod qui habet non tam diu quam ipse vult sed quamdiu is qui concedit patitur eo frui This indeed agrees with that Law which is supposed to have obtained even till the 49 H. 3. Whereas from hence Feudal Tenure advanc'd to an Estate for Life Solet usus fructus constitui in personam tantum Cujacius de feudis Tom. 4. fo 464. and all this before the year 650 from which time to Charles the Great who began to reign in the Year 800 unless one were particularly assigned by the Gift the Lands descended Craglus fol. 21. by right of Inheritance to all the Sons It s state of Maturity was when it descended to one but still there was an Inheritance by the Law of Feuds before the time of William the First and above 450 years before the 49th of H. 3. And I would rather believe Cujacius for the Jus Feodale or the Nature of it than what we find under the Title Parliament in the Glossary Cujacius defines a Feud Cujacius de feudis fo 464. Tom. 4. Jus praedio alieno in perpetuum utendi fruendi quod pro beneficio Dominus dat eâ lege ut qui accipit sibi fidem militiae munus aliudve servitium exhibeat An Usufructuary Right in another's Land which the Lord gives for a Benefice upon condition that the Grantee should be faithful and true to him and perform Military or other Service This is a perpetual Right therefore not to be disposed of by the Lord's Will or the Law which he should give 'T is indeed Vsufructuary because the Lord has the Forfeiture and Escheat according to the Laws setled in any particular place For I take it that in one place they differ'd from another And in Confutation of this Conjecture that ex ipso jure Feodali the Lord jus dicit take this as the general Law of Feuds 't is enough that in any place where the Feudal Law was received 't was otherwise Choppinus de Juridic Andeg Choppinus sayes that amongst the French a Feud implies not juridica potestas nil commune cum juridica potestate Which if as Jurisdiction is often used to signifie a Power inferious to Jus dicere it is but a Judicial Power it follows that the Lord could not have the greater where he had not so much as the less And farther Feuds have in all Countries been guided by the Law of Property their Common Law Thus sayes Cujacius Nos quoque jus feudorum quo Italia utitur sequimur non inviti nisi siqua in re pugnet cum legibus aut moribus nostris We also willingly follow the Law of Feuds which Italy uses unless in any thing it fights with our Laws or Customes And this is to be observed that the end of raising Feuds has often prevailed to introduce a Custome without any express Law and beyond the Foreign Law of Feuds 1. Without express Law and thus to preserve the Head of a Barony that was never to be divided whereas any other part was often so in which the Common Law prevail'd from the end of raising the Feud which requir'd the Preservation of that entire though the other part of the Barony might be divided Bracton and Fleta suppose the Barony to descend to several as well Males as Females Bracton lib. 2. fo 76. Primogenitus vel primogenita habeat electionem propter suam Eisneciam says Bracton Fleta lib. 5. fo 313. whose words only I repeat Let the first born Male or Female have Election by reason of the elder Share And with this agrees a Record in King John's Reign Thomas de Scoteney petit versus Willielm Scoteney Capitale Mesuag quod habere debet in Steinton cum pertinentiis sicut illud quod pertinet ad Eisneciam suam de Baronia quae fuit Lamberti Scoteny Thomas de Scoteny
Term. Pasc. 7. 8. Jâ—hannis 9. dorso claims against William Scoteny the Capital Messuage which he ought to have in Steinton with the Appurtenances as that which belongs to his elder share of the Barony which was Lambert Scoteny's These surely were Brothers not Sisters Sons being of the same Name and the Claim being immediately from the seizin of Scoteny and this Claim was allowed as the Record shews Besides tho 't is generally believed that Wardship was in use before the Reign of H. 3. And Mr. Sylas Taylor in his History of Gavelkind Hist. of Gavelkind p. 104. thinks he proves it to have been before the supposed Conquest Yet we have good Authority that there was no express Law for this before 4. H. 3. Kâ—ighton fo 2430. Aâ— 1219. 4 H. 3. Magnates Angliae concesserunt Regi Henrico Wardas hoeredum terrarum suarum quod fuit initium multorum malorum in Angliâ The great men of England granted King Henry the Wardships of their Heirs and Lands which was the beginning of many Evils in England 2. We find Custom prevailing beyond what was the foreign Feudal Law at least of some places for which I may instance in Relief paid by the Heir male after the Death of his Ancestors Whereas I find it in Cujacius payable only by the Heir female Cujaâ—iâ—s fo 498. Siquis sine filio Masculo mortuus fuerit reliquerit filiam filia non habeat beneficium patris nisi à domino redimerit If any one dye without Heir male and leaves a Daughter let her not have her Fathers Benefice unless she redeem it of the Lord. That Relief was called Redemption appears by the Law of H. 1. Leges fo 1. cap. 1. Haeres non redimet terram suam sicut faciebat tempore fratris mei sed legitimâ justâ relevatione relevabit eam It seems in King Rufus his time this payment was so unreasonable that 't was a Redemption in a strict sense and a kind of Purchase of the Land but now 't was to be a lawful and just Relief 2. The jus feodale mentioned in the Glossary if it be not the Law generally received where Feuds were must be the Law of England in particular But 't is to be observed that Choppinus knocks this down who tells us that amongst the French Juridica potestas was not imply'd by a Feud Against Petyt p. 31. in margin But our Apollo teacheth us that our ancient Tenures were from Normandy and that was govern'd by the French Feudal Law being of the French King's Feud Wherefore the Juridica Potestas or jus dicere was not here Ex ipso jure feodali nay in the same place the French Feudist tells us Choppinus de Jurisdict Andeg fo 455. Interdum certè Baro Castellanum observat superiorem 'T is certain sometimes a Baron is under a Castellan's Feud And he gives the Reason why it may be so which is that a Feud carries not with it ib. so 450. the Potestas juridica which reason is very apparent in that a Castellan is of a degree lower than a Baron Take Juridica potestas in the same Sense with jus dicere in the Glossary a Baron was to take Laws from his Inferiour Leges H. 1. cap. and to have his Lands taken from him without Forfeiture as it appears by the Law of Hen. 1. that being one of the Judges in the County Court was not upon the Account of Resiance but the having Free land there so it must have been in the great County Court of Cheshire though they had an extraordinary Power there Admit therefore that a Lord of another County were Feudal Tenant to a Commoner there as 't is not to be doubted but he might have been should this Lord have been represented by his Capital Lord there Glos. 2 part Consentire quisque vid. Or admit a Lord there had no Land but what he held of a Commoner as of such an one as Thomas de Furnival Jani Angl. facies nova p. Sed vide the Record more at large who had several very considerable Mannors might Thomas de Furnival represent the Lord in the Lord's House But farther taking the Jus Feodale to be as in force with us unless the positive Law giving so large a Power be shewn 't is a begging the Question for 't is to prove the Right which our wise Antagonist would exclude from the Question as being indisputable I suppose by the Fact whereas the fancied Right is used in his Hotch-potch Glossary to induce us to the belief of the Fact But from what Sourse is this Right deriv'd SECT 5. An Improvement of the Notion of Jus Feodale THat I may make our mighty man of Letters out of Love with his darling Glossaries 2 Part of the Glos. and his own I shall observe to him That according to that for the Credit of which he pawns his own Truth or his Friends All the Lord 's Right of Representing their Tenants in the Great Councils Against Mr. Petyt p. 31. is meerly Feudal ex ipso jure feodali But all Feuds were enjoy'd under several Military Conditions or Services Being then these were the onely Feudal Tenures and yet as appears by Domesday-Book and all manner of Authority there were Freemen who held in free or else in common Socage though the Dr. sayes all the Freemen of the Kingdom were Tenants by Military Service These Socagers were not chargeable by any without their own consent But like men of another Government and it seems he will afford them nothing here they though called were not obliged to come to the Great Council which was the Curia of the King 's Feudal Tenants onely Nay they were never at it And therefore no wonder if the Laws were obsâ—rved by and exacted upon Against Mr. Petyt p. 43. onely the Normans themselves For the others could not be bound and if they consented to any Charge for Defence of the Government it could be onely in what way they pleased to consent either in a Body by themselves or united with the Vassals or else severally at home as a meer Benevolence And there being free and common Socage Tenants before the Norman's Entrance and since continually thus it must alwayes have been CHAP. III. That Domesday-Book to which he appeals manifestly destroyes the Foundation of his Pernicious Principles SECT 1. SInce our Tenures and the manner of holding our Estates Against Mr. Petyt p. 31. in every respect with the Customes incident to those Estates are said to be brought in by the Conquest and not onely most but all free Estates must have been feudal as Knights Service which is made the onely feudal was in the time of William the First the onely free Service ib. p. 39. What I have said of Feuds in the last Chapter doth directly reach the Controversie between us though our Author who has an excellent faculty of overthrowing his own Arguments
date of the English Slavery what shall we judge of his Vagaries p. 43. Not directly reach the Controversie which he himself owns to be impertinent I shall take no notice of Ecclesiastical or Kentish Titles because the Church and that County may be thought to have been particularly exempted from the common Calamity 〈…〉 nor shall Freeholders of Houses have a place here I must observe that though the same names are often repeated Sir-names being then most in use we cannot tell but that they might have been different Parties but however if there were so many distinct Properties 't is enough Surrey 1. Hugo de Port was a very great Proprietor Domesday He was not Tainus Regis as may be found under the Title Terra Hugonis de Port many Mannors he had and as appears in Hampshire he had at least two Mannors Cerdeford and Eschetune from his Ancestors before William's Entrance And even this is a ground to believe he was a great man that he had a Sirname or Addition Whereas Camdens Remains p. 136. if we believe the great Antiquary Mr. Camden Sirnames were not setled among the common People fully till about the time of Edw. 2. 2. Oswald holds Michelham Idem tenuit T. R. E. 3. Seman holds in Mideham 4. Otbert holds an hide in Michelham Antecessor ejus tenuit in Vadio which his Ancestor had in Mortgage of Brictrick 5. The Earl of Moreton Ipse Comes tenuit Estreham T. R. E. a very powerful Prince as I may call him held Estreham in Tenrige Hundred in the time of King Edward He enjoyed several other great Possessions of the Gift of King William I doubt not indeed but he was a Norman born yet he was here before the Entrance of the Norman Duke and might not improbably be in Favour with King Edward the Confessor Camdens Remains p. 136. who was all Frenchified He to be sure had some Lands within the Kingdom of England p. 176. which he enjoy'd not from William's Division 6. Seman holds one Hide in Mideham Tenuit de Rege Ed. nunc tenet de W. Rege 7. Godwin holds one Rood 8 William the Hunter holds Littleton 9. Oswald holds Pechingford 10. Seman holds one Rood in Copedome Hundred 11. Oswald holds Feceham 12. Teodorick the Goldsmith holds Clevintune 13. Chetel the Hunter holds Lodesorde Pater ejus tenuit de Rege E. Hamshire Terra Tainorum Regis 1. Alwi the Son of Saul holds Tederley Pater ejus tenâ—it in Alodium de Rege E. Nota In Cambridgeshire of 37 Owners of Houses in the seventh Ward but 3 were Franciginae 2. Vluric holds Locherlei 6. Four English men Brothers I take it hold Wallope 7. Edmund holds Land of the King Pater eorum tenuit in Alodium 8. Agemund holds Weldeve Ipsemet tenuit in Alodium de Rege E. 9. Another Agemund holds Hotlop 10. Alwi holds Locherslei 11. Agemund holds Sotesdine 12. Sawin holds half an hide in Rocheborne 13. Vlviet the Hunter holds Riple 14. Agemund holds half an hide in Totintone 15. Alric holds half an hide 16. Godric's Sons hold Haugre 17. Alwin holds two hides 18. Ravelin holds Clere. 19. Lewin holds one Rood in Clere. 20. Vluric holds a Mannor 21. Alwin holds Merceode 22. Cola the Hunter holds half an hide 23. Saulfs Wife holds Hoburne 24. Vulgar holds one Rood in Melleford 25. Godric Malf's Sons hold one hide in Esselei 26. Aluric holds one hide in Einforde 27. Aluric holds a Rood and an half in Vtefel Leving and Chetel held it Aluric purchas'd it in the time of King William 28. Aluric holds one hide in Broceste 29. Godric Malf's Sons hold Mintestede 30. Oirant holds Celvecrote 31. Alsi holds Abagine The two next held in Alodium of the Confessor 32. Swartin 33. Edwin 34. Ralph Mortimer holds several Possessions some of which he had jure haereditario from before the reputed Conquest Ipse Radulphus tenet Ordie This Mannor T. R. E. extra Ecclesiam emptum fuit eo pacto conventione ut post tertium haeredem cum omni peeunia Manerium Ecclesia Sancti Petri de Episcopatu recuperet nunc qui tenet Radulphus est tertius haeres Barkshire Berroche scire 1. Walter holds one hide in Cheneteberie which King Edward gave his Ancestors De firma suaÌ„ solut ab omni consuetud propter Forestam custodiend excepta forisfactura Regis c. 2. Edward holds one hide in Coserige he held in Alodium of King Edward 3. Alward the Goldsmith holds Sotesbroc Pater ejus tenuit de Regina Edw. 4. Eldeva a Free-woman holds in Henret one hide of the King in Frankalmoigne which she held T. R. E. and could go whether she would 5. Alwin holds Ceuresbert which he held T. R. E. Wiltshire Wiltscire 1. Brictric holds as his Father did T. R. E. Wochesie Straburg Stratretone and Odestock 3. Brictric and Alwin hold Colesfeld Ipse tenuit T. R. E. 4. Aluric holds Wadone 5. Aldred holds Bimerton Ipse tenuit T. R. E. 6. Cudulf holds Wintreburne 7. Cheping holds Haseberie 8. Cola holds Gramestede Pater ejus tenuit T. R. E. 9. Gode holds one Hide in Stotecome Ipsa tenuit T. R. E. 10. Edwin holds Chigelei 11. Edric the blind holds Hertham 12. Edward holds Widetone Pater ejus tenuit T. R. E. 13. Edmund the Son of Aculfe holds one Hide in Bredford 14. Harding holds Winestone 15. Turchil holds in Contone 16. Vluric holds three Roods of Land in Wintrested and one Rood in Tuderlege 17. Vlnod holds 1 2 Hide in Bramessage 18. Wendsey Vit ejus tenuit T. R. E. the Wife of Titecome holds Land 19. Lisman holds three Hides in Melchesham 20. Wado holds one Hide in Bereford 22. Otho and Swain hold the Lands which their Fathers held Tenentes Terrarum quas tenuerant eorum patres T. R. E. T. R. E. 23. Savic holds Lachertestoche Gest frater ejus tenuit T. R. E. 26. Ceviet Aifild and Eldid held divers Lands which their Husbands held T. R. E. Dorsetshire Dorsete Terra Tainorum Regis 1. Gudmund holds Midletone 2. Bollo the Priest holds Mapledore Ipse tenuit cum aliis 7 Tainis T. R. E. 3. Brictwin holds Waia 4. Vluric holds Mordone Pater ejus tenuit T. R. E. 5. Alward holds Tornecome 6. Ulviet holds Winburne 7. Godwin the Head-borough holds one Hide in Winteburne 8. Swain holds Winteburne 9. Vluric the Hunter holds one Hide 10. Brictwin above named holds Ciltecome 11. Brictwin holds Wadone 12. Saward holds eleven Rood in Caundele 22. Ten Thayns hold Chimedecome Ipsi tenuerunt T. R. E. pro 1. Manerio Omnes qui has terras tenuerunt T. R. E. Potuerunt ire ad quem Dominum volebant Somersetshire Summersete 1. Brictric and Vlward hold Bochel and 2. Siward holds Ettebere 3. Vlf holds Havechewelle 4. Alward and his
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
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