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
would have the Discourse about these ib. nay and the Conquest it self to be out of the Question and then pray what is the Question It cannot be whether Tenants in Capite represented p. 2. or by their Votes concluded all that held by any other Tenure Nay whether these and their Tenants could do it because this Tenure and manner of holding Estates came in with the Conquerour I hope I shall not seem tedious though I am long upon this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of a Conquest that Corner-stone on which if he knows what he do's which I cannot but doubt of sometimes he Erects a fanciful Scheme of Government And thus the lofty Fabrick rises one Story upon another William having made an actual Conquest Against Mr. Petyt thereby had the absolute Disposal of all the Lands of the Kingdom p. 35. and did p. 176. according to his lawful Power give all away to his Followers who though French p. 35. Flemmings Anjovins Britains Poictovins were all metamorphos'd into Normans p. 43. upon whom onely the Feudal Law was executed and observed The King's Grantees though ordinarily a Tenement or Possession neither added to Glos. p. 10. or detracted from the Person of any man if free or bound according to his Blood or Extraction might well be all the Free-men of the Kingdom because the Conquest had made all the English Slaves and the King granted onely to his Great Followers which were Free before But when these Grantees granted out to others p. 176. the Subfeudataries made part of the Freemen of the Kingdom as holding by Knights Service these were the men ib. p. 39. the onely Legal men that named and chose Juries and served on Juries themselves Carta H. 1. both in the County and Hundred Courts Barones Comitat. qui liberas habent terras in which Courts they were the onely Suitors Alas no body else had any free Lands in the Counties Therefore p. 42. these must have been the men that at first Elected two Knights in every County out of their own number and onely they were Electors when first the Body of them began to be represented And unless others are impower'd by the 8th of H. 6. c. 7. which restrains the numerous Electors to Free-holders of 40 s. per ann As the Tenants in Capite came before the 49th in their own Persons and represented the Body of the Commons of England and when first the Body of them that is the Tenants in Capite began to be represented they onely as was proper chose their own Representatives so it ought to be at this day And thus the Tenants in Capite that is they alone and yet they and their Tenants by Knights Service have ever been and still ought to be the onely Members of the Great Council I know he will venture hard but he will make all this good in his next if he can there being a narrow Interest in some for which they would sacrifice the Publick But I shall think our Government will have been finely brought to Bed by his Midwifry when such a monstrous brat is own'd by it Vid. Letter to the Earl of S. But if King William the Master-builder refus'd what this Author would make the Head of the Corner and was not so absolute a Conquerour as to leave the English neither Estates nor Fortunes Against Mr. P. p. 43. ib. p. 179. what becomes of his Airy Ambuscade He has the Confidence to refer to Dooms-day Book in every County for this Fiction and that will satisfie a man wilfully blind p. 176. that William the Conquerour divided all the Land in England amongst his great Followers Now what if I shew out of himself and this book of Judgments concerning Lands and Services that he divided very little of the Lands in England to his Followers to be sure that he was far from distributing all Our Author spared the particular Proof I 'll warrant it to make us believe it would require a Transcript of the whole Book but I think I shall impose upon no body by affirming without transcribing the greatest part of it that even where Lands were enjoyed by other Owners than such as held them in the time of King Edward and upon other Titles yet the Lands continued for the most part to hold in the same Manner as before Whereas William according to him brought in a new Manner and none were so much as Free-men who held not by Knights Service which he setled over all jure haereditario We generally shall find that there was no change of the Manner or Quality of the Service but only of the Quantity Tunc geldavit modo geldat for so much either more or less according to the Improvement or Fall of the Land and frequently that which before paid for a certain number of Hides paid nothing at the making of the Survey The Rent I conceive was in proportion to the value of the Land that being seldom named but only how many Hides Acres Roods c. there were and these Tenants seem to have held in free or common Socage Sometimes they were such as potuerunt ire cum terrâ quo voluerunt which I doubt not Doomsday Ties Taiâ—i tenuerunt non potuerunt ire quolibet uâ— flet tenuiâ— de Tofti sed non fuit alodiâ—m were the Alodiarii sometimes they were not so free but held by Villain Services though themselves were free and these were Tenants in common Socage Sometimes Milites are named but rarely so that 't is certain he can have but small Assistance from Dooms-day book and being there sometimes descent sometimes purchase and now and then the King's Grant is mentioned who can tell by that whether generally the Lands were enjoyed by the one or the other Title since especially 't is most usual only to name the Persons that held formerly who did then and by what Services I take it there are as many and as often English names there as others and though the 〈…〉 of names different from the former 〈◊〉 Vid. Caâ—den's Remains of Sir names from p. 136. to p. 141. that the Christian 〈…〉 which 〈…〉 from their Fathers are more us'd there than Sir-names But I thank him he has given me an easie Task to shew that in spite of his Conjecture this great Survey demonstrates that there were Proprietors of English-men who held free-Free-lands upon Titles paramount to what he insists upon If notwithstanding our Author's Quotation out of Tilburiensis But they should not claim any thing from the time the Nation was conquer'd under the Title of Succession or Descent Tilburiensis an Officer of the Exchequer who was for bringing Grist to the Mill I produce a List of Free-holders who enjoyed their Lands of the Seizin of their Ancestors Against Mr. P. their own p. 34. or theirs of whom they purchas'd Against Jan. c. p. 1. from before the counterfeit
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
which were before nay sometimes less or none when formerly there were some as in Surrey Robert de Wate holds one House which paid all Services in the time of Kind Edward now nothing at all But to the Claims or Titles allowed Hantescire Aldredus frater Ode calumniatur unam virgatam terrae de hoc Manerio dicit se eam tenuisse die quâ Rex Edwardus fuit vivus mortuus disaisitus fuit postquam Rex Willielmus mare transiit ipse dirationavit coram reginâ inde est testis ejus Hugo de Port homines de toto hundredo Aldred the Brother of Ode claims one Rood of that Manner and says That he held it the day that King Edward was alive and dead and was disseized after that King William past the Seas and he recovered it before the Queen Hugo de Port is Witness of it and the whole Hundred 'T is to be observed that where the County or Hundred attests any mans Plea or Title this is a solemn Judgment in Domesday Book that being the way appointed of ascertaining Estates and Titles In the same County and Hundred Hugh de Port has his Claim allowed Hanc hidam calumniatur Hugo de Port dicens eam pertinere ad sua Maneria de Cerdeford Eschetune ibi eam tenuerunt sui antecessores hoc testantur tot ' Hundr ' This Hide Hugh de Port claims saying that it belongs to his Mannors of Cerdeford and Eschetune and there his Ancestors held it and this the whole Hundred testifies So the same Hugh claims three Houses and a Corner of a Field and one Rood and five Acres of Land of Turstin the Chamberlain and of this he brings the Hundred to witness that his Ancestors were seized Die quo Rex Edwardus fuit vivus mortuus The Tryal in this Couâ—ty between William de Chornet In Forcingbridge Hundr in Clatings and Picot the Sheriff of Cambridgeshire is very remarkable In isto Hundr in isto Maner tenet Picot 2 Virgat dimidium istam terram calumniatur Willielmus de Chornet dicens pertinere ad Maner de Cerdeford feudum Hugonis de Port per haereditatem sui antecessoris de hoc suum testimonium adduxit de melioribus antiquis hominibus totius Comitatûs Hundr Picot contraduxit suum testimonium de Villanis vili plebi de prepositis qui nolunt defendere per Sacramentum aut per Dei judicium quod ille qui tenuit terram liber homo fuit potuit ire cum terrâ quo voluit sed testes Willielmi nolunt accipere legem nisi Regis E. usque dum definiatur per Regem In that Hundred and in that Mannor Picot holds two Rood and a half of Land that Land William de Chornet claims saying that it belongs to the Mannor of Cerdeford of the Feud of Hugh de Port by the Inheritance of his Ancestor And of this produced his Testimony of the better and ancient men of the whole County and Hundred and Picot on the other side brought his of Villains and inferiour People and of Bailiffs who will not defend by Oath or by Gods Judgment which I take here not to be the Ordail but the Battail as we find the Tryals vel bello vel judicio that he who held the Land Which was the Issue against being of Hugh de Port's Feud was a Freeman and might go with it whither he would Here the County or Hundred testifies that the stress of de Chornet's Cause depends upon the Confessor's Law and so give the Title with him In the North and West riding of Yorkshire many Claims may be seen as of Earl Hugh which I take it was Hugh de Ferrers Henry de Ferrers being disseized in that County and 't is likely both claim'd by the same Title Hugh was a very considerable Free holder There are many others who are in like Circumstances as George Malet William Malet Orm and Bunde Osburn de Arcis William de Warren Ligulf Wido de Credun Percy Sortebrand Gislebert SECT 4. 'T is evident that King William did not so much as make a new Grant or Confirmation to men of what was theirs before the old Title being sufficiently firm hence in Amelbrice Hundred in Surrey tenuit Almaris sine dono Regis eò quod antecessor ejus Almar tenuit Almar held without the King's Grant because his Ancestor Almar held it In Glocestershire Brictric tenet de Rege 4 Hidas in Lechametone Geldant ipse tenuit earum 2 Hidas T. R. E. Ordric alias duas Rex Willielmus utramque eidem Brictric concessit pergens in Normaniam Brictric holds of the King in Lechametâ—ne four Hides and they pay a Quit-rent he held two Hides of them in the time of King Edward and Ordric the other two King William when he went into Normandy granted both that is the two Hides which Ordric held to Brictric so that Brictric enjoyed the other two not contained in the King's Grant upon his prior Title SECT 5. WHereas this Author is pleased to exercise his reflecting Faculty upon that Lawyer in Ed. 3. Reign Against Mr. Petyt p. 28. who affirmed That the Conquerour came not at all to out those who had right Possession Should be rightful but to out those which by their wrong doing had occupied any Land in Disinheritance of the King and of his Crown that is such Land as was forfeited to the Crown by their being in Arms against the King upon which p. 29. he says that this Judge spoke out of Design and studied and knew only popular and lucrative Law and not the Constitution of the Nation before his own time 'T is manifest that this free Censurer studies only parasitical Law and that if he were acquainted with Domesday book he would not censure this nor would challenge his Adversary to find any one Plea or Grant of the like Nature p. 26. with Swanborn's who pleaded p. 25. That he was never against the King Now 't is observable that we find many Forfeitures mentioned in this Book which were needless if the King seized without so in Essex in Barstable Hundr In Burâ de istis Hidis est una de hominibus forisfactis erga Regem in Bury one of those Hides belonged to the men that were forfâ—ited to the King and this was the way of Expression accordingly in the Active we find in Norfolk Earl Ralf held such Lands Quando se forisfecit But more particularly in Cambridgeshire in Wardune Hardwin holds of Richard this did not belong to Richard's Ancestor but Ralf Waders held it Die quo deliquit contra Regem that day on which he was in Arms or Rebellion offended against the King and so forfeited whereas otherwise it had continued with him but this compar'd with Indulphus the then King's Secretary makes a full proof Erle Yvo sends to Anjou to the Abbot of St. Nickolas
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
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
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
Confessor whereas on the other side were Villeins vilis plebs and praepositi Bailiffs all which may be Normans if he please Farther when ten Tithings of Freâ—pledges made an Hundred to suppose that these were not Hundredors legal men there Glos. p. 31. but the Knights who were not bound with Sureties to their good Behaviours is as silly as to say two times two do's not make four 2. His Notion is dangerous and that according to that Improvement of it for the sake of which 't was broach'd But of these Tenants in Capite Against Jani c. p. 13. ' t is highly probable if not without doubt that the two Knights were at first chosen by the other Tenants in Capite in every County to represent them And the Reason given for this is That the Elections were to be made in the County Court by the Suitors Against Mr. Petyt p. 42. and this he imagines to have continued in such Tenants till the 8th of H. 6. c. 7. by which any man that had 40 s. per annum 8 H. 6. c. 7. of any Tenure was permitted to be an Elector Whereas to any one but him 't will be obvious upon reading the Statute that it is restrictive of that Power which before was in men of lesser Estates but is very far from giving any new power Whereas the Elections of Knights of Shires to come to the Parliaments of our Lord the King in many Counties of thâ— Realm of England have now of late been made by very great and outragious and excessive number of People dwelling within the same Counties of the Realm of England of the which most part was of People of small Substance and of no value whereof every of them pretended a Voice equivalent as to such Elections to be made with the most worthy Knights and Esquires within the same Counties whereby Manslaughter Riots Batteries and Divisions among the Gentlemen and other people of the same Counties shall very likely rise and be therefore 't is provided that the Choice shall be in every County by People dwelling and resident in the same Counties whereof every one of them shall have Land or Tenement to the value of 40 s. by Year above all Charges c. Here is manifestly an Exclusion of some former Electors but no new ones created wherefore the unforc'd Consequence is that all Lands being now held in Free or common Socage and there being no time for Prescription or any new Law impowring such to chuse their Representatives this great Preservative of the Rights and Liberties of the Subject is defunct and I dare say 't is neither within his Art or his Will to recover it Yet though he would smother it I doubt not to find it alive amongst his Nobles for whatsoever made a man Noble Against Jan. c. p. 91. secured this Priviledge to him But Ingenuity made a man noble therefore every Ingenuus was always of Right an Elector for the Great Councils or present at them That Ingenuus and liber homo were the same I take it is evident from Bracton Bracton lib. 1. c. 10. who makes the 〈◊〉 Division of persons to be into the Liberi Freemen or else Servants of such as are sui juris who have that Liberty ib. cap. 5. p. 4. which he says is of the Law of Nature or such as are under others whose Liberty is obfuscata darkened or beclouded by the Law of Nations These are but different Expressions of the same thing ib. under the first are the Nobles in a strict sense as of an higher Order such were the Majores Barones and the Ingenui sive Liberi nay the Libertini too Bracton such as were manumitted and restored to their natural Liberty under the other were Servants Villains or others The learned Cluverius in his Description of Germany Cluver Germ. Antiq f. 121. cap. 15. Nobilium Ingenuorum Libertorum cui admixtus Libertinâ—rum from whence we derived our Distinctions makes three Orders under the first Division But all Free-men of either Order were Ingenui with Bracton who takes no difference here And if we believe our Author 's ipse dixit all ingenui were Nobles Quod erat demonstrandum 'T will be hard if amongst these Ingenui Against Jani c. p. 42. we do find prodes homes too but our Author has seen it written prudes homes though he cannot call to mind the Record And truly we have no great Reason to trust his Memory since 't is so treacherous to expose him by frequent and palpable Contradictions Well Prudes homes they were Ay that they were that came to the Great Councils such as were the Wits in the Saxon Gemotes but if to the Folkmote there came to be sure all the Frank-pledges then they were Noble Wits and so vous avez Against Petyt p. 21. the liberi homines prodes homes prudes homes and Wites or Sapientes But upon second Thoughts the Communitas populi were the Community of the Barons only Against Petyt p. 129. together with the Alios the Milites who held by Military Service of the great Barons and the lesser Tenants in Capite And for this there is Demonstration Ib. p. 56. in that the Meaning of Populus iâ— to be taken as contradistinct from Clarus and then it signifies no more thaâ— Laity it doth not denote a distinct State or Order amongst secular men or Laies but an Order and State of men Ib. p. 57. distinct from the Ecclesiasticks or the Clergy This by no means is meant of the inferiour sort of People But good Mr. Interpreter if Clerus signifies inferiour Clergy as well as the Superiour nay is most commonly appropriated to the inferiour what becomes of your profound Observation and of all your Presidents And how comes it to pass that even the poor Mass Priests were anciently called Mass Thegnes Possibly no man has a better Faculty than this Gentleman of facing out clear Proof which he often brings against himself An. 1244. 28 H. 3. Against Mr. Petyt p. 162. Thus he tells us The great men of the whole Kingdom the Arch-bishops Abbots Priors Earls and Barons were called together in which Council the King by his own Mouth in the Presence of the great men in the Refectory at Westminster desired a pecuniary Aid to whom it was answered that they would treat about that matter And the great men retiring out of the Refectory the Arch-bishops Bishops Abbots and Priors met and treated by themselves At length the Earls and Barons were asked The Dr. omits engliâ—â—â—ng ex parte eorum either not understanding it or because it manifestly destroys his Whimsey p. 17. if they would unanimously consent to the Resolutions they had taken in answering and making provision for what had been demanded of them Who answered that without the Common Vniversity Communâ— universitate rather the University of the Commons they would do nothing