to his Parliament and no others unless by chance But pray what a Reflection is this upon several excellent Monarchs Successors to H. 3. whom he renders Denyers of their own Acts though under the Broad Seal But there is an Argument in the Parliament Rolls 3 H. 6. p. 12. upon the Question of Precedency above-mentioned where 't is taken for granted that our Kings and Queenâ— had not then such a Prerogative to do wrong If soch commandementz shold make right and yeve title it wer to hard for yen shold it seme yat neither of my sayd Lords Erls Mareschal and Warwyck shold fro this day never sitteâ— in Parlement without new Commandement To tell the Lords who are concern'd 〈◊〉 this that there are many who have an â—â—defeazable Right by Patent and some â—he first of whose Ancestors or themselves ever had any more than the ordinary â—rits without creating Clauses or any â—her than such as when any Parliament â—as to be called went out of Course and Right to them who were Lords before â—ould be as needless as the Orators Disâ—ourse of Tacticks to the Carthaginian Hero I shall be bold to offer to Consideration â—herein consists the Right of such a Sumâ—ons and I take it to be in the Prescripâ—ion though perhaps none were setled in â—he Right of coming till the 11th of R. 2. Yet the time from whence they preâ—cribe might be Earlier and yet whether Writ alone or only as fortified with Preâ—cription gave the Right here was what was not still left to Royal Pleasure onâ—y I conceive that a Writ of special Sumâ—ons of it's self gave no man Right to come always after this as a Lord for if it made him not a Lord it gave him no Right to come to the Lords House as such And this I take to be evident from the Records of the several Summons of the twâ— Furnival's Jan. Angl. at the latter end Father and Son who had thâ— same Writs of Summons with the Lordâ— and yet were no Lords for the loweâ— Degree of Lords was Barons and thâ— Son pleads that his Amerciament in a great a Sum as a Baron was against Law for that he neither held by Barony neâ— Baro suit intitulatus nor was called Bâ—ron nor obtained that name which could not have been if he was one of the Baronâ— in Parliament so that he could be no more than an Assistant as the Assistants havâ— Writs in the same form with the Lords Wherefore if any claim'd from Writ 〈◊〉 must be by prescribing to have had it 〈◊〉 long time in his Ancestors as amounts 〈◊〉 a Prescription by the Custom of Parliament which is the Law of it Besides 〈◊〉 can be no Objection that to a Prescription 't is necessary that it should have been iâ— memorially so as nothing to the contrary can be shewn whereas the very first Wriâ— may be seen for this most plainly is different from common Prescriptions both in the manner of it and in the Reason of thâ— thing 1. In the manner We find the Burgesses of St. Albans to lay their Prescription only from the time of the Progenitors of E. 1. which might be only from within the time of King John or from the beginning of his Reign if but from the later end â—here were an hundred years for a Prescripâ—ion 2. But besides this apparently differs in the Reason of the thing so that it must needs have a different Law from common Prescriptions For other things the Ground of the Right is the always having enjoyed either by a man's Ancestors or by them whose Estate he has And if it were at any time in others and it could not appear when they parted with it 't was a manifest Injustice for them to make such a Claim to have it so that â—he appearing upon Record when the first Writ was is an Argument that a Prescription may lawfully be made in this Sense 2 There were Commonalties Rot. Parâ— 8 E. 2. Bodies contracted by Representation that came to Parliament of Right who yet were Lords in the Drs. Sense being they held in Capiâ—e as he supposes the Knights for the Counâ—ies to be Grantz the same with Magnates as they held in Capite I am persuaded in this he taught the most Learned what fell not within their Knowledge oâ— Belief before and for a while made them quit that peice of Philosophy Nil admirari in wondring at the Sagacity of the man However by this time 't is wond'rous plain from his Demonstrations that admit a Difference was made between Lords and Commons with distinct Power yet the Commons of Counties Citties and Burroughs were not only often called by the same Names Yet I take it that such Tenants in Capite had no share in the Judicature because then 't would have continued still but were strictly Lords and therefore had a joynâ— Power even in Judicature For if they came before as Tenants in Capite and that Tenure made them noble 't was to be ever in the same manner since 6 R. 2. c. 4. But the very Traders nobilitated by the Dr. lay claim to and have allowed them a Right from Prescription It may be objected from hence against my Notion of the Lords which held in Capite being pass'd by at the King's Pleasure tho others were not that here a Prescription is laid upon the Tenure in Capite And it being from before the 49th oâ— Hen. 3. there could have been no such Settlement as both my Opposite and my self receive He perhaps has set aside this in his own Opinion but I must confess I can't embrace his new Sense However I think it no hard matter to give a natural Answer For the Author cited by the faithful Mr. Camden acquaints us with no other Alteration than what related purely to Singular Personâ— ex tanta multitudine Baronum Mat. Par. Quasi suâ— numero non cadebat Who being scarce to be numbred made very great Disturbances which required a new Model and a Restriction of the Numbers provided it might be with a just preservation of the Rights of every one in particular but those great Bodies which before came by Representation could admit of no change without a tendency to Destruction Agreeably to this Observation the Inhabitants of St. Albans plead their Right to be represented in Parliament not barely because of Tenure in Capite Rot. Parl. 8 Ed. 2. but Sicut caeteâ—i Burgenses regni as other Burgesses in â—he like Circumstances 3. I hope I have some Reason for my Confidence when I affirm that I ought 〈◊〉 differ from this New Light when it instructs us that the King 's appointing â—nd ordaining p. 227. That all those Earls and â—arons of the Kingdom of England to which he thought fit to direct Writs of Summons should come to his Parliament and no others or as he repeats the same meaning the Arbitrary Practice of Henry the Third Ed. the First and his Successors
yields these Rights to be more than precarious For according to him the Tenents in Capite were the only Members of the Great Council before 49 H. 3. and if others were after 't was by Usurping upon the Rights of Tenents in Capite ib. p. 210. ib. 42. who and not others when the 〈◊〉 Government was set up How were Cities and Burroughs holding in Capite Represented according to this And how came they ever to be Represented began to be Represented by two Knights for every County out of their own number and they at first that is then Elected their own Representatives and yet these Tenents in Capite might be set aside if the King and his Council pleased nor was any power given to others to chuse till â—0 H. 6. c. 2. which gave no new power ib. p. 79. and the Lords depend upon the Kings pleasure ib. p. 42. Therefore what the design is ib. p. 227. 228. and at whose door the crime of it lies the thing it self speaks tho I should be silent But for fear he should seduce unwary Readers I must observe his Artifice in imposing upon them the belief that as it has ever since 49 H. 3. been at the Kings pleasure that any Lords came to the Great Council so the King could of right name to the Sheriff what Representatives for the Counties Against Mr. Petyt p 249. Cities and Burroughs he pleas'd as he observes in the Margent upon a Record 31 E. 3. but he is not so Candid to observe that though indeed at that time there was such a nomination yet that was noâ— to any Parliament or to make any new Law or lay any kind of Charge upon the Nation or particular men but was a Summons of a Council to advise how what was granted by full Parliament legally Summon'd might be best answered juxta intentionem concessionis praedictae and in such Cases the Judges only who are but Assistants in Parliament might well be consulted but pro magnis urgentibus negotiis as when King Charles the First called the Magnum Concilium or Great Council of Peers to York An. 164â— upon the Scotch Rebellion the King call'd more to Advise with and the Counsellors might well be of his own Choice 'T will be urg'd that when the King appointed but one for every County p. 242. 26 E. 3. they were impowr'd to consent to what de Communi Consilio contigerit ordinari p. 246. 27 E. 3. and that such a Council made Laws as the Statute of the Staple made the 21 of E. 3. to which the answer is very obvious that they made only Ordinances not Laws and that these were Magna Consilia taken in a sense totally different from the Generalia Concilia or Parliaments and all this appears above the power and subtilty of our learned Doctors Evasions in that the Record cited by himself in the 26 E. 3. calls the Assembly they are Summon'd to Concilium only and an Act of Parliament in the twenty eight of that King calls what was done in the twenty seven Ordinances 28 E. 3. c. 13. and that meeting a Great Council Magnum Concilium but such a Council it was and its Resolutions such meer Ordinances the distinction of which from Acts is well known that that very next Parliament finds it needful to confirm and give them the force of a Law Agreeably to this the Earl Marshal in that grand Case in the 3 H. 6. pleads that though a determination hadde be made against the said Earl Marshall in great Council Rot. Par. 3. H. 6. n. 12. though he hadde be of full age that might not disherit him without Authority of Parliament these are uncontrollable evidences and proofs against him let him to save the great Credit of his Learning answer them if he can But who is the new Government-Maker and new Parliament-Maker perhaps one might know from himself when he has considered a little better and then he may think the Government as 't is now establisht â—ighly concern'd in his Errors Perhaps 't will be said I injure this good man in imputing to him a design in relation to the present Government Since he owns that the most excellent great Council Against Mr. Petyt p. 229. and goes to prove it evidently from Records received its perfection from the Kings Authority and time But 't is obvious that its Perfection must be meant of such its Perfection as his Book allows and he would make evident but what is that That Lords should to the time of his excellent discoveries be Summon'd to Parliament ib. p. 227. 228. or past by at the Kings pleasure and that if the King pleas'd he might Summon one Knight for a County ib. p. 249. one Citizen for a City one Burgess for a Burgh and those nam'd to the Sheriff And this design will be very evident if we observe his aery ambuscade to return his own phrase and meer juggle in joyning the Kings Authority and time together we think we have something but by an Hocus Pocus Trick 't is gone for admit that its Perfection were such as we say it has at this day viz. for Lords to come of Right in their own Persons and that the Commons should send Representatives of their free Choice Yet let us see what setlement he gives this Great Council for which purpose we must divide the two Authorities which sometimes may differ And 1. Suppose that though time would preserve that power which the Great Council exercises a King would hereafter take it all to himself and make Laws by a Council of his own chusing or without any If the Doctor allows this power doubtless the next Parliament will thank him 2. Suppose that without or against the Kings Authority time only would establish this Great Council can this be done He that affirms it surely will be no great friend to Prerogative nor understands he that Maxim Nullum tempus occurrit Regi And one of these must be clos'd with 'T will be objected that I am as injurious to Prerogative in arguing that some Lords may have a Right of Prescription to come to the Upper-House But I think no sober man will deny that there is a right either from Writs alone or from Writs as prescribed to and 't is strange that it should not be against Prerogative to urge a right from one Royal Concession and yet it should be to urge it from many but farther if they who had no right to come in Person or be Represented in Parliament should by colour of Prescription put themselves upon the King for Counsellors this were derogatory to the Prerogative But if there be a natural right for Proprietors of Land with whom some say is the ballance of power within this Nation to be interested in the Legislature which I 〈◊〉 not affirm Or if there be such a positive right not only from the Laws for frequent Parliaments which suppose such to be Members as had been but more particularly from the Law received in the 4th of William the First Rex debet omnia rite facere in Regno per judicium procerum Regni and by positive Law or Custom the King us'd to send special Writs for some general for others the Prescribing to special Writs which is not of Substance as to the Legislative Interest is no diminution of Prerogative because no more in effect is out of the King than was before which is that this man should one way or other have a share in the Legislature If this Solution of mine will not pass I cannot help it I am sure the Law for a right grounded upon one or more Special Writs of Summons stands fast though the reason of it should be above my reach Having run through a Book so ill-natur'd to the Government and so impotent in its setled anger as that which some may think to have no other design Above all vid. Title page Against Mr. Petyt p. 81. than that of exposing Mr. Petyt and me the one for Artifice â—â—nhandsom dealing with and false application of Records c. the other amongst other things for Ignorance Confidence and Cheating his Readers I may hope notwithstanding the disparity of years and the dignity of his place to be very excusable in using our Answerer with no more respect When a man renders himself cheap by his folly and yet meers with many so weak that they are discipled by him to notions of dangerous and pernicious consequence to the State Ridentem dicere verum Quis vetat In summing up the Product of his many years labours which my Preface charges him with perhaps it may be thought that I omitted one considerable Head however I leave to others if they think fit to add for a seventh That both Lords and Commons may be depriv'd of all Shares or Votes in making of Laws for the Government of the Kingdom when ever any future King shall please to resume the Regality Some perhaps may add an eighth That the Parliaments are nothing but Magna Concilia such as are called only to Advise upon what shall be given in direction but no consent of theirs required to make the Kings determination a binding Law And Vice Versâ every Great Council such as that call'd to York 〈◊〉 1640. is a Parliament FINIS ERRATA PAge 12. l. 6. add Drs. before interdicts p. 15. in marg add p. 239. p. 16. l. 11. read vicinata p. 18. l. 10. r. 25. p. 28. l. 12. r. in Chief p. 39. l. 5. r. had p. 47. l. 21. r. induere l. 23. r. deposceret p. 82. in marg dele Shire after Cambridg p. 100. l. 17. r. Sharnborn p. 110. in marg towards the bottom add Domesday p. 124. l. 6. r. paragio p. 133. l. 24. add and according to their Chattels p. 139. add of before a title p. 151. l. 13. r. conticuissent p. 156. in marg r. Lords for Knights p. 163. l. 2. r. â—it l. 10. r. integra p. 201. l. 8. r. title In the Additions Page 8. l. 5. r. article p. 23. in marg Leges Sancti Ed. p. 25. l. 12. r. of King John's Charter viz. Tenants c. ib. l. 25. r. Nocton
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
of the King I take leave to observe that the Right of Precedency from within the Reign of H. 3. nay though before the 49th is no way inconsistent with the Belief that many Lords who had Right till a Settlement then made were left out afterwards at the King's Pleasure that is had no special Summons yet tbey could not be denied their Right of being there in Representation Be it that the Heires of Bigod and himself Jan. Angl. faciâ—s nova p. 257. 262. were Tenants in chief which as I thought at least I shew'd formerly could not since the 49th have Right to come to Parliament quatenus Tenants in chief yet when any of the Heirs came upon particular Summons to Parliament that is 6 R. 2. cap. 4. All Singular Persons and Commonalties which shall from henceforth have the Summons of Parliament c. the King 's Calling them out as Singular Persons they were to come as Tenants in Capite in the manner as they be bounden and have been of old time accustomed And they that refused shouldbe amerc'd as is the Penalty By Manner is meant 1. in the same Quality Lords as Lords and 2. in that Degree of the same Quality which of old time had been accustomed 3. The Manner also implies the manner of enjoying any Power in Parliament Thus the Lords were of old accustomed to enjoy the ordinary Power in a Manner properly Judicial and that the supream Manner too Whereas the Commons had of that only what was needful to maintain their Priviledges as to the Legislature the Manner was the same Neither was above or could give Law to the other But in the judicial Power in Parliament the Commoners were no more to be joyned with the Lords than with the Tenants in Chief in the King 's ordinary Court out of it Vid. infra in the body of the Book p. since the same Curia Regis delegated from the Lords and answering to that which was pro more us'd to exercise that Power both in Parliament and out of it so that wherever they sate they were in the same Court The Commons could not exercise this Power with them out of Parliament therefore not in it Some will say that no more is intended by this Statute than that every one who receives Summons must come as was his Duty and had been of old Whereas 't is certain they who did not come as they were bound were amerceable before at the Common Law nor was it likely that the King wanted a Law to make good that Prerogative which to be sure he had over his Tenants by their very Tenures and could seize upon their Lands for Contempt of his lawful Power as the Bishops were sometimes threatned Vid. 4. â—ust Inde se capiet ad Baronias su 8. And this is enough against this Author since he makes the King's Tenants in Capite to have been all that came to Parliament even by Representation till the 8th of Hen. 6. Against Mr. Petyt p. 42. which 't is his setled Design to prove though sometimes he contradicts himself and yields that their Tenants by Knights Service came too Besides the genuine Import of the Manner leads me to this sense especially as 't is joyned with Bounden For he who was a Commmoner till the Summons was not bound to come as a Lord nay was not a Lord when he came As appears by the Writs to the Lords Assistants in the same Form with those which the Lords have So that the Statute in my sense is manifestly in Affirmance of the Common Law I shall lay at the Feet of the Lords my Sentiments in relation to their House either as I agree with or oppose one to whom that High Order probably will not think themselves much obliged I shake Hands with him Against Petyt p. 228. and agree that King Hen. 3. a little before his Death began to leave out such Earls and Barons as he pleased but I believe not this upon his Ground which is as if it were meerly from Royal Authority that is the Prerogative which that King had from of Old p. 229. without the Actual Consent of the People For I say 't was given him by Parliament Jâ—es Rep. f. 103. concernthe Earldom of Oxford Princes Case 8. Rep. either in the 48th or 49th Nor doth Rex statuit in the least discourage me in this Opinion being many Acts of Parliament have pass'd with the joint Authority of King Lords and Commons and yet the Enacting Part has had words of the same Import with this 2. I differ from my Opponent when he would have it believed p. 228. supra that Ed. 1. and his Successors observed this constantly or as he exprest the same thing before p. 227. The Practice was then and ever since accordingly And in this he has dealt as unfairly by Mr. Camden whom he quotes as I doubt not but 't will be found he has done by Mr. Petyt and me For Mr. Camden tells us That he has this out of an Author sufficiently Ancient and thinks not that he differs from the Authority which he receives when he says 'T was thus only donec till there was a setled Right And this he makes 11 R. 2. but this the Doctor vouchsafes not to take notice of But how cheap does he make his applauded Reasonings when he would prove it to be thus ever to this very time or the time of publishing his Libel because it was in the Reigns of Henry 3. Ed. 1. and his Successors to the time of that Old Authors Writing who if we credit Mr. Camden wrote before 11 Richard 2. of which he might be assured by the way of Writing in several Kings Reigns respectively to which Antiquaries are no Strangers or else by the Date annex'd in the same Hand But to prove that the Learned Clarenceux knew more of these things than this Pretender I shall shew that Rights were setled for coming to the House of Lords long since Against Mr. Petyt p. 175. But he will say possibly That he has anticipated and evaded my Proof as my Arguments upon the grand Question were in his Belief Against Jan. c. p. 47. by saying in one place Against Mr. Petyt p. 227. In those times probably the King might omit to summon whom he would I think he swarms with Contradictions as a Judgment upon his Vndertaking For he says That by what he calls the New Government 't was appointed and ordained ib. p. 110. not only that the Kings should call whom they pleased Which cannot properly be meant of Calling but once by Patent or Writ and the giving a Right from thenceforth to come afterwards because there was and is yet a new Call to every Lord for every distinct Parliament But he is express p. 227. That all those Earlâ— and Barons of the Kingdom of England to which the King thought fit to direct Writs of Summons should come
constantly was the Constitution of the House of Lords Having recited the words of Camden's Author he goes on Having had one great Antiquary's Opinion Against Mr. Petyt p. 228. joyned with matter of Fact upon the Constitution of the House of Lords let us see the Opinion of another concerning the Origin of the House of Commons so that the Constitution of the House of Lords answerâ— to or is in the same Sense with Origin in Relation to the Commons And the making this to have been the Constitution of the House of Lords and maintaineâ— in Practice ever since is as much as 〈◊〉 say the Rights of that Order of men aâ—â— not setled at this day for the despotic Power in this matter has been if we believe him constantly exercised and thaâ— of Right ever since the 49th of Henry the Third By the Constitution of the House 〈◊〉 Lords that which is the only thing possibâ—â— to be here implyed by the word is the Righâ— of the Lords to come as Lords and the beginning or first Establishment of it For the Constitution of an House separate from the Commons could not consist in the King 's leaving out or calling Lords at his Pleasure since such Arbitrary Procedure with them would only differ them in point of Interest from the Commons whom he pretends not to have been omitted at the King's Pleasure ever since the 49th of Henry the Third but he denies in effect that any Lord and by Consequence even enough to make an House or distinct Assembly of Lords in Parliament had or yet have any Right Thus against the Laws of Friendship he destroys the Successors of those Tenants in Capite whom he so dearly lov'd and cherish'd And it seems courted a great Asserter of the Rights of that High Order with a fawning Epistle that he might the more easily betray them all with a Kiss of the hand Vid. his Letter to the Earl of Shaftsbury and Your Lorships Most humble and obedient Servant â—nto a Belief that he could give all due Saâ—isfaction In the Charge which I have drawn up I have intended no Injury if the Consequences will not hold 't is from the Error of my Judgment not of my Will For my self admit what I am impeach'd of by him to be true yet being I argue that ever since the 48th or 49th of Hen. 3. no man had Right to come but as at this day If my Notion of what the Government was before be false 't will do no harm and I hope it cannot be affirmed with any Justice that I am a new Government Maker in relation to the present Frame yet I know that it has been whisper'd about as if I would have this Government to be new modell'd which I utterly abhor and that more than my Accusers the Ground of whose Accusations have been chiefly my devoting my self to the Service of the admirable Constitution by King Lords and Commons the Rights of the two last I have according to my Capacity defended being theâ— have been controverted But surely nâ— man dares be so presumptuous to set him self against God's Vicegerent by Divinâ— Appointment put over us and that 〈◊〉 our great Happiness in all matters or Caâ—ses There are several Interests in our mâ—serably divided Nation and wise men may be of each Party yet if any such should wish ill to our gracious Monarch or to Monarchy it self both his Wisdom and his Honesty were justly questionable What Alteration of Property the great Basis of a Nations Strength and Peace would be upon a new Model when Ambition an over-weening Opinion of a man's self Covetousness nay and Prodigality too would make many strive to be uppermost while they brought their poor Country under the greatest Slavery For my part I shall not scruple to deliver my self with the greatest Openness and Plainness of Heart The King is justly the Supream Head and Governour in all Causes Ecclesiastical as well as Civil Long may he enâ—oy this his undoubted Right Serus in coelum redeat Hor. Ode 2. diuque Laetus intersit populo precanti Neve se nostris vitiis iniquum Ocior Aura Tollat Long may he live and long in Peace command Monarch of Hearts as of his native Land Long be it e're the Angels nigh his Throne By mounting up with him leave us alone His Prerogative no man or body of men can take from him which his excellently devised Negative to all Petitions and Counsels secures And this makes it that the Sanction of all Laws is from the King only for what a man does by the Advice of Counsel he does by himself as much as a man acts freely in those very things in which there is the special Assistance of Grace and Conduct of Providence For fear I should not be clear enough in my Expreâ—sions though my Heart be clear in it I will make the learned Bishop Sanderson speak for me He says according to my real Sentiments Sanderson de obligaâ—ione Conscientiâ— Praelectio 7. p. 189. Cum dicimus penes unum Regem esse jus condendarum legum nonâ—id ita intelligendum quasi vellemus quicquid Regi libuerit jubere id continuò legis vim obtinere nam populi consensum aliquem requiri mox ostendam Quin hoc est quod volumus quod scilicet Plebiscita Senatus consulta caeteraeque Procerum plebis aliorumque quorumcunque rogationes nisi regia insuper authoritate muniantur non obligent subditos nec habeant vim Legis quibus tamen maturè ritè preparatis simul ac Regis accesserit authoritas legis nomen formam authoritatem protinus accipiunt incipiuntque statim ac promulgatae fuerint subditos obligare Cum igitur illa sola censenda sit cujusque rei causa efficiens principalis sufficiens quae per se immediatè producit in materiam preparatam introducit eam formam quae illi rei dat nomen esse etsi ad productionem ipsius effectûs alia etiam concurrere oporteat vel antecedere potius ut praevias dispositiones quò materia ad recipiendam formam ab agente intentam aptior reddatur omnino constat quotcunque demum ea sint quae ad legem rectè constituendam antecedenter requiruntur voluntatem tamen Principis ex cujus unius arbitratu jussione omnes legum rogationes aut ratae habeantur aut irritae esse solam adequatam publicarum legum efficientem causam Besides this I have in Sincerity subscribed to his Majesty's Power in Calling Proroguing and Dissolving of Parliaments and this were enough in relation to our present Controversie being only of Parliamentary matters But in short to offer at the Flower of all other Flowers of the Crown the King can neither do nor suffer wrong but like God Almighty dispenses his Blessings to the inferiour World while he sits above in an impeccable impassible immortal State God is not the Author of Evil nor can he suffer by
Petyt p. 228. nor earlier Commencement than the Commons What King Henry a little before his death begun that is to call such Earls and Barons ib. p. 228. quos dignatus est such as he pleased Edward the First and his Successors constantly observed This was the Constitution of the House of Lords Viz. The rebellious Barons who framed the new Government p. 210. the Lords made the Commons and the King made the Lords The Kings follow'd Montfort's Pattern Against Mr. Petyt p. 229. for calling the Commons to Parliament Which yet was not Montfort's alone for they the rebellious Barons fram'd and set up the new Government p. 210. After which they sent out Writs in the King's Name to summon a Parliament with Commons as well as Noblemen And yet Camden cited p. 226. Cotton cited p. 228. according to two Authors whom I receive H. 3. set the Pattern who after the Victory at Evesham wisely began in This what his Successors fortunately finish'd And the King's beginning this was a Reason why those Kings follow'd Montfort's Pattern Though 't was by the Power of Montfort alone that is of him and the other Barons that the Commons were let in to the great Councils to lessen the strength and power of the great Lords that is their own strength and power yet it was by the King's Authority though 't was before the Battel of Evesham when Montfort prevail'd yet it was done after when the King recovered the Regality I shall come now to the particular consideration of Jani Anglorum facies nova The Author of which sufficiently shews his fantasticalness in the Title of his Book Jani Anglorum facies nova What because his Shreds of Antiquity are thought doubtful by some taken in one sense by others in another do's he therefore make Janus bifrons of his Composition He had as good call it a Spread Eagle which looks both wayes too I am sure it suits better with my Book which is an high Flyer His Allusion to Selden's Jani Anglorum facies altera will not justifie him since that Antiquary was chiefly conversant in Popular and Lucrative Law Besides the Title imports the Novelty of his Opinion though perhaps he would have us believe that he puts a New Face upon those musty old things which have been thought to look with a different Aspect Nor can he shrowd himself under my Title for mine is an old Face which has honourable Scars and Flaws in it and a Professor's Aspect And they understand not Railery and Figure who observe not how I expose him by the Allusion He will have it and brings many Arguments Jan. Angl. c. p. 22. amongst which the Judgment of a whole Parliament of that famous King Ed. 3. but that is not Infallible that the Common Council of the Kingdom in King John's Charter is onely a Council for Scutage and Aid granted by Tenants in Capite Whereas Aid sometimes signifies such as to be sure is granted by the greatest Council and therefore does alwayes Against Jani c. p. 10 11 12. Farther What need was there to have the Cause of Summons declared if it were onely about Aids and Escuage or other ordinary business of course though indeed whether it was for Aids or other Business might not be known without this Declaration ib. p. 12. Lastly If all Proprietors were Members of the Great General Council 't is strange there should not have been the same care taken that they might be summoned Alas What signifies the Provision of the Common Law But he brings an Argument from the Earl of Chester's being a Count Palatine Against Jan. c. p. 20. and not subject to the Feudal Law whereas he was a feudal Tenant Though Bracton lib. 3. ca. 8. I must confess the old Dotard Bracton sayes Comites Paleys Counts Palatine have Regal Jurisdiction salvo dominio Domino Regi sicut Principi saving to the King his Dominion as Prince not as Lord of the Feud Besides in one of the Quotations which he brings to prove that the Earl of Chester however came to Parliament Against Jan. c. p. 17. he leaves out Laici because it manifestly destroys his Whimsey for it shews that all the Laity were Tenants in Chief in that they as a great Council say that the Tenants in Chief did owe no Service But he has another fantastical Notion that this Council in King John's Charter was an ordinary Court. Upon which he has these Arguments which I put among his Unintelligible Vagaries that there was a Court held thrice a year Against Jan. p. 26. which treated onely of Matters of ordinary Justice Vid. Jan. c. unless when 't was united with the Great Council And in these two Senses taken together was an Ordinary Court that the Tenants were obliged by their Tenure to be there Bract. l. 2. c. 16. p. 37. Consensu communi totius Regni introducta But at the Great Councils were more for which he cites Bracton who speaks of several Vnintelligible Businesses for which the Common Consent of the Kingdom was always required That to King John's Charter the Liberi Homines totius Regni were Parties Against Jan. c. p. 5. whereas in truth the Great Charters were onely the Petitions of the People drawn into the form of Charters as Statutes now are upon the Petitions of the Commons drawn into the Form of Statutes and pass'd by the Concurrence of the King and Lords Since I am fallen into the Learning of Charters I must inform you that though the Charter of H. 3. has the inspeximus of Edward the First and is enrolled in the 25th of his Reign in ipsissimis verbis when 't is confirmed 〈…〉 in full Parliament Per commune assent de tut le Royaume Rot. Stat. 25 Ed. 1. m. 38. to have been made by the Common Assent of all the Realm in the time of H. 3. nostre Pere meaning the Father of Edward the First and though as appears in the Statute Roll the Date and Witnesses were of the time of H. 3. yet Against Jan. c. p. 63. this Great Charter was properly the Charter of Ed. 1. or perhaps rather his Explication or Enlargement of that Charter of King John and H. 3. for we find not the Great Charter either of that or King John ' s Form in any of the Rolls until the 25th of Ed. 1. and therefore 't was impossible that any such Charter could be found in the 25th of that King though he Reign'd so long since or indeed that King John's Charter was made by him And there is Demonstration that 't was not the Charter of H. 3. in that Rot. Parl. 15. Ed. 3. N. 150. dor when 't is confirm'd in Parliament in the 15th of Edward the Third 〈…〉 〈…〉 The Great Charter and the Charter of the Forest and other Statutes made by our Sovereign Lord the King
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
of Summons and deny their Rights in legal Practice tho a Parliament was to be held In fine the Kings of England de facto used to suffer Tenants in Capite to come to their great Councils but the Right is deny'd even them who only had that Permission But Against Jan. c. p. 66. and 67. does he not own the Fact with us expressly in the 48. of H. 3. and yet goeth to set aside the Right by giving an Account of the History and Occasion of it Our Champion not only denies that the Commons had any Share or Votes c. in making of Laws for the Government of the Kingdom c. unless they were represented by the Tenants in Capite but vouches the name of Sir Henry Spelman to prove that 't is of Right Ex ipso jure â—eodali that the Tenants in Capite should represent the rest In this Case â—e may admit us all the Fact of coming to the great Councils and yet the Right would have been against us as long as the Feud remained that is till the twelfth year of his present Majesty when the Feudal-Right as set forth by our Opponent ceast So that not only the Fact within the Compass of our dispute would have been insignificant but no Fact since to this very day could prove any Right the Right of sitting in Parliament having been according to him wholly Feudal if any no Statute giving a new Right to any 〈◊〉 elect as I shall shew since the time when he places in the King's Tenants in Chief by Knights Service all that Right of Elections which was suffered between Subject and Subject Where then is the Right at this day Vid. Pref. in any Commoners to come to Parliament Nay in any Lords upon the Grounds which I have already expos'd But what if in our Dispute about ancient Testimonies we have granted us those very words which we contend for Against Mr. Petyt The Commons c. were not introduced c. before â—â— H. 3. That is not once if the Question be only of Fast. as Evidences oâ— the Fact nay and our own Sense too to be on Record admitting that Right may arise from one Fact well proâ—ed what Question then remains Why then 't is purely of Right Vid. infra fideles and that â—s whether our Delian Apollo has not Right in his floating Island to set up Matthew Paris above Record if it were only for this Reason that he speaks â—ore oracularly and doubtfully than the Records Is it not granted that the Fact is on our side by such Authority as he would advance above Records and that in reâ—ation to his belaboured Conquest when â—e says that the mistaken Notions that â—s those which are contrary to his of the Conqueror's Title Laws and Government Against Mr. Petyt p. 43. were devised by the Monks and Clergy-men-Lawyers Nay is not the Right of Conquest it self as merely such made a Question by himself For he asks whether any man can forfeit that is justly loose his Lands to a Stranger a Conqueror that could not pretend Title but by Violence and Conquest Justly to loose and to forfeit must here be reciprocal to vest a Right in a Conqueror for if the Vanquish'd loose not their Right of Reprisal when 't is in their Power 't is not forfeited and if 't is not forfeited forisfacta made anâ— ther 's by Right 't is not justly lost nay 't is not lost at all only forcibly with held Is it not in effect yielded us that the Commons have ever of Right been Aâ—senters as well as Petitioners and thaâ— from before the 49. of H. 3. For hâ— yields the Word Ever to be in the Parliament Roll nor does he tax the Cleâ—â— with any designing Addition to the Record but which serves not his Turâ— he says Against Mr. Petyt p. 134. 't was ever since they were a third Estate or a Member of Parliament A goodly Discovery that they werâ— a Member ever since they were a Member but do they not plead that they were ever a Member that is immemorially If they had prescribed to this ever since the 49. of H. 3. he might have triumph'd but even in his Sense neither Fact nor Right is controverted because for ought he says here they might ever have been a third Estate And if Burgesses whom though Tenants in Capite I shall take for Commons which to be sure with him had as great if not greater Right than any not so holding could not make that Claim matter of Right in the 8. of E. 2. but at at least it might be overthrown for â—eason of State how came it to pass â—â—at the whole Body of Commons did it â—â—en without Check from the King or â—â—s Council whom he makes very ignoâ—â—nt of the Prerogative or so fearful of â—â—eming to assert it that they durst not â—â—me it though perhaps the Lords â—ere all likely then to have joyned in â—â—e throwing them out and this at a â—â—me when we are told the Commons â—ere little inconsiderable Fellows and â—ore the Lords Livery Coats That more than Tenants in Capite â—ere present at the great Council when King John's Charter was made I do not â—â—nd that he controverts and indeed â—ow can he There having been that â—rmy which was too powerful for their â—nhappy King and the Londoners in great Numbers who I take it used â—o come more contracted but he denies that more than Tenants in Capite were Parties to the Laws whether they were de facto is to be proved by Reason And he urgeth that the Laws were made only to Tenants in chief which indeed would be a Demonstration that none but they were Parties but that moâ—â— were I shall prove under a distinct heâ— of his Contradictions SECT 2. His Contradictions 2. MR. Petyt whom I cannot bâ— call judicious notwithstanâ—ing the Interdict had asserted that tâ—â— Commons such as are now representâ— by Knights Citizens and Burgesseâ— were always of Right an essential paâ—â— of the great Council I joyn my Suffragâ— and for Proof alledge that King John Charter does not constitute the Tenanâ— in Capite the only Members but leavinâ— to all the Villae their Liberties and frâ—â—â— Customs If the Inhabitants even Parishes came to the great Councilâ— without Consideration of this Tenuâ— in Capite their Right was sufficiently secured under the word Villae Now what if all this is oppos'd onlâ— out of a Spirit of Contradiction and ouâ— of the same Spirit he contradicts himself and answers the Character which the inimitable Cowley gave of Envy which begun Davidâ—â— â—nvy at the Praise her self had won â—he Villae I say signifies Towns and â—â—shes too as distinct from the Burâ—â—s to be sure not the Habitations â—â—nants in Chief only whom our Opâ—â—nt argues to have been the only â—â—sentatives of the Commons if they â—any till the 49 of H. 3. But to deâ—â— my Notion of the Villae he cites
â—â—eton to prove either that every â—s the same with a Burrough or else 〈◊〉 taken as different from a Burâ—â— and indeed here are Burgi 〈◊〉 they must be small Towns incorâ—â—ed not holding in Chief â—â—ttleton's Words from which I have â—eason to dissent are these Chescun 〈◊〉 est un Ville Against Jan. p. 7. mes nemy e converso â— he translates Every Burrough is a 〈◊〉 but not e converso Now if from â—e infers that every Town is a Burâ—â— his Argument is thus every Town â—â—urrough because every Town is not â—â—rough A man of the weakest parts â—ell us a thing is so because it is â—e is a wise man indeed that can â— it to be so because it is not so Well but 't is a Town incorporaâ—â— and to strengthen his Argument produces Writs of Summons to Vills which if he argues at all shâ— That he allows the free Customs more than Tenants in Capite to comâ— Parliament to be hereby provided under the words which I insist on But pray did Littleton explain â— self that none but Towns incorpâ— were Vills Oh! but it must be What Liberties What free Customs common ordinary Towns and Parisheâ— enjoy Against Jan. Anglorum c. p. 7. What municipal Laws Whaâ— vate Laws and Priviledges Alas I have no Laws whereby they enjâ—â— any Lands If others had Land they were free from the Feudal Law for the Laws were broâ— in by and exacted upon only the â— mans themselves who all held in 〈◊〉 by Knights Service too Against Mr. Petyt p. 43. and 〈◊〉 could not have had so much as pâ—â— Customs or By Laws neither haâ— other Incorporated Towns any for are not within the Charter of Libeâ— which was to Tenants in Capite What says Fortescue to all this can he answer 't when he makeâ— the Genus to all Divisions under Hundred So that either a Buâ—â— corporated Town other Town and a â—â—arish Vid. the Franck-pledge in every Vill. Vid. etiam Jan. Angl. or Village may be a Vill mes neâ—e converso But is it possible that â—ortescue can gain Credit when such an â—â—thor says the contrary However â—â—'s hear him for methinks the man â—â—oks as if he had some weight in him Hundreds are divided into Villages Fortescue de laudibus Legum Angl p. 52â— â—â—der which Appellation are contained â—â—rroughs and by Burroughs must be â—â—ant such as held in Capite Towns inâ—â—porated without such Tenure or not â—orporated or else these were no Diviâ—â—ns within an Hundred And to be â—e an ordinary Village is a Village here Burrough is made the Genus to all â—â—wns but not to Villages but as he â—ws wherin a Village consists it wholâ—roves to my mind For the bounds of Villages are not conâ—ed within the Circuit of Walls p. 52. b. Buildâ—s or Streets but within the Compass Fields great Authorities certain Hamâ—â— and many other as of Waters Woods 〈◊〉 Wast-grounds which it is not needful set forth by their Names Here not any one of the Particuâ—â— seem necessary to be added to the â—â—er unless all must but even a certain Compass of Fields or of Woods 〈◊〉 make a Village without any great Aâ—thorities and within that space migâ—â— be certain free Customs which the Owâ—ers enjoy nay though not inhabitinâ— And for an Evidence of our Authoâ— great Love to Truth he observes 〈◊〉 what is said in the Comment upon thâ—â— very words which he cites out of â—â—tleton 1. Inst. fol. Villa ex pluribus mantionibus vâ—mata collecta ex pluribus viciâ— And if a Town be decayed so as no â—â—ses remain yet it is a Town in Law But what need I resort to foreiâ— Proof when in effect this is granted my hand For Against Jan. c. p. 61. ib. p. 63. King John's Charter and Kiâ—â— Henry the Third's were the very same King Henry the Third's was but â—ward the First 's and Ed. 1. in the â— of his Reign rather explained or enlarâ—â— that Charter of King John than câ—â—firmed the Charter of H. 3. Well to be sure nothing of Sâ—â—stance was left out So that the Rigâ—â—â— of coming to Parliament which indeâ— could not be omitted out of the Châ—â—ter of all the then Liberties and Rigâ—â—â— of the Subject were included in 〈◊〉 Charter of Ed. 1. Wherefore in those â—imes and in Henry the Third's if the Charter were in his time made and confirmed with that Omission of the Teâ—ants in Chief as not material the Rights of all were comprehended under the Liâ—erties and Free-Customs of the Civitates Portus Burgi Villae being from the â—9 H. 3. by the 25. Ed. 1. to be sure he Villae the Inhabitants holding Free-â—ands in any Village or Parish came by Representation So that in the Charter of King John Villae must signifie inferiour Towns or Parishes as well as in the 25. of Ed. he First But p. 64. 't is an absurd Supposal that by he 25. of E. 1. the Constitution was not â—etled even though himself says that the House of Lords was constituted before â—nd that a new Government was not onâ—y framed Against Mr. Petyt pa. but set up Nay I shall prove â—hat the Representations of the Commons were then setled but to urge almost he same Argument from other words of his If Hen. the Third's Charter accordâ—ng to Matthew Paris p. 62. on whom he â—elies in nothing differs from King John's As I have seen in several Manuscripts of great Antiquity affirming that they were some 2. aud some 9. H. 3. and which the Charter inrolled 28 Ed. 1. proves beyond Dispute and yet in that of Henry the Third the Clause relating to the Tenants in Capitâ— is left out Is it not Demonstration to him that the Rightâ— of small Towns and Parisheâ— were preserved by the general Words I insist upon And that according to the Sense of the Charter 15 Ed. 1. when the Commons were noâ— obliged to be represented by Tenants iâ— Capite only he himself contends for noâ— more than the Fact that sometimes moâ—â— of the Knights for the Counties weâ—â— such as held in Capite by Knights Service But why was not Henry the Third Confirmation of King John's Charter 〈◊〉 much the Charter or Grant of H. 3. â— Ed. the First 's Confirmation made it hiâ— Charter So that here is another Contradiction if he insist upon it that it was not as properly the Charter of Hen. 3. as Ed. 1. And in Truth Henry the Third's was most properly his since he granted it not as a Confirmation of King John's Charter but as the Liberties which were in England in the time of his Grand-father Hen. 2. For although the King says Ma. Paris 305. 〈…〉 Omnes illas libertates juravimus which I take it referred to the Confirmation 20 yet one of his Councellors insists upon it in the King's name that they were extorted by Force from King John for his Charter they
required or what was therein contained Upon this Habilo Concâ—â—io mature Advice being taken and that of the great Council for that at least consented â—n not opposing the King sent his Precepts to the Sheriffs throughout the Kingdom to cause an Inquest of twelve Knights or else of twelve lawful men â—hat is Free-holders to be return'd 12 Milites vel legales homines out of every County respectively concernâ—ng the Liberties which were in Engâ—and in the time of King Henry that King's Grand-father The Charter mentioned by our Adversary was 9. H. 3. And so after this Tryal the Precept for which was 〈◊〉 indeed the actual Confirmation of what they found or Judgment upon it was not till two years after â—ut then the Clerus Populus cum Magnatibus where by the way the Populus could not be the Magnates â—he Inferiour Clergy and Laity with the great ones go on upon their former Issue and would give no Supply to the King's Wants till he would grant Petitas Libertates the Liberties they had before sued for or demanded not barely as a Confirmation of King John's Charter M. Par. Supra p. 305. but indeed these very Liberties which they pleaded to have been such in the time of H. 2. The Denial of which occasioned the fighting for them against King John were in Substance no way different from the Grant made by King John in Affirmance of the Common Law And so the Charter of H. 3. was in nullo dissimilis to King John's and if there were any Difference the Clause by which the great Priviledge of Tenants in Capite is argued for being omitted 't is a Sign that admit it constituted them a full Parliament this was not their Right in the time of H. 2. nor return'd so to have been but was the only thing extorted by Force and fell with it This were enough to set aside all his Arguments nay and that Language too which serves instead of them but I cannot deny my Reader and my self the Pleasure of observing him more particularly and if it may be of knowing him intus incute His two main Designs if he be steady to any but to contradict right or wrong are 1. To prove that William the First took away from the English their Estates â—nd as he imposed the Tenures and Manâ—er of holding our Estates in every respect so he did all the Customs incident to those Estates The Customs I thought had been within the Manner but let that go Des Cart. Principiae Phil. p. 17. Per modos planè idem intelligimus quod aliâ—i per attributa vel qualitates c. the Manner implies the Quality as he might have been taught long since â—y Des Cartes this extended to all the Estates derived or come to any now â—nd yet in the very same page 't is but most of them being feudal not all I have already shew'd his Denyal of the Conâ—ueror's Right to take any and thus â—his Mountain is finely brought to Bed by the Dr. 2. As a Consequent upon William's dividing the Land amongst his Followâ—rs he would shew that this King's Grantees and that in Capite by Knights Service were the only Members of the Great Councils Against Mr. Petyt p. 2. and that no others had any Communication in State Affairs unless they were represented by the Tenants iâ— Capite Against Jan. c. p. 12. In another place No doubt but the Tenants in Capite were the General Council of the Nation If therefore he own that there were Councils more general than such as were compos'd of Tenants in Capite only does he not yield the Cause Not to repeat his Concession for Towns incorporate not holding in Capite he yields it for single Persons who still held not by that Tenure In many places he grants As p. 112. That all the Nobility of England met to treat with the King Against Mr. Petyt p. 131. or to the like purpose Farther that the Baronage or Nobility included the Tenants in Capite and sucâ— great men as held of them by Military Tenure So that in effect if the Tenure or as he expresses himself A Tenemenâ— or Possession Glos. p. 10. neither added to or detracted from the Person of any if free oâ— bound according to his Blood or Extraction An ordinary Free-holder in free or common Socage might as well have been provided for as to a Right in coming to Parliament as a Tenant by Knights Service of the King's Tenant in Chief But he tells us then theâ— must be great men holding by these Services But to shew that he insists not upon this finding a vast number of men at the passing of King John's Charter which was Inter Regem liberos homines totius regni Glos. p. 26. he yields that the Retiâ—ue and Tenants in Military Service were Members of the Council though upon second Thoughts he tells me these liberi homines were the same which â—he King calls in his Charter Liberi homines nostri Against Jan. c. p. 9. These Liberi homines nostri were Tenants in Capite So that the Tenants of Tenants in Capite were Tenants in Capite and this suppose explains that Passage where â—e says Against Mr. Petyt p. 176. Whoever held of the Tenants in Capite by mean Tenure in Military Service held of those Barons or Tenants in Capite by the same or like Tenure that themselves held of the King That is every Tenant by Knight's Service of the King's Tenant by Knight's Service held in Knight's Service which â—dentical Proposition I heartily thank â—im for or else every such Tenant of â—he King's Tenant in Capite held of the King in Capite that is immediately and â—ot immediately in the same respect But these Tenants of Subjects such as were Members of the great Council were however concluded by the Acts of their Lords Against Mr. Petyt P. 113. They that held of the Tenants in Capite by Knights Service were bound by their Acts viz. The Acts of the Tenants in Capite that is These Tenants were Members of the great Council and no Members as their Lords represented them and yet did not represent them but they came themselves But to be sure none but Tenants by Knights Service who were Homagers and sworn to obey their Lords as the ordinary Free-holders were to keep the Laws and defend the Monarchy Jurati fratres-franck-pledges and the Peace of the Kingdom were in his Sense bound by the Acts of their Lords So that there was a necessity for the Bull and Multitude of Free-men or small Free-holders Glos. p. 31. to be bound with Sureties to their good Behaviour in such manner as the Law had requir'd amongst themselves otherwise the Government could not secure it self against their Violations of the Laws they neither meeting in the Great Councils nor being bound by the Acts of such as met any more than the Tenants in
ancient Demeasn when they have not been called to great Councils This Author is pleased to say p. 99. It cannot be thought that the King ever wrote to all the Knights and Feudataries of England Pat. 15. Jo. p. 2. M. 2. n. 9. Rex Baronibus militibus omnibus fidelibus totius Angliae These Fideles were the Kings Tenants in Capite Glos. p. 16. to meet in a great Council c. and therefore whatsoever the words of the Writ are the Design of it was to convene such only as had usually in those â—imes been called to great Councils which were the Tenants in Capite though no Barons That is in effect the King never wrote to all the Knights and Feudataâ—ies yet he did for he conven'd his Tenants in Cheif though no Barons 'T is manifest he speaks here only of the King 's Feudal Tenants for he avoids â—he largest and most comprehensive Sense of Fideles which as he informs us there â—nd in his painful and partial Glossary of some half a score words may be taken for Subjects in general and restrains â—t to such as were Tenants in Capite But he says 't is not to be thought that all the Fideles in the restrained Sense had the King's Letters or Writs yet in the same page with an antick Face p. 99. he tells us they the Tenants in Capite though no Barons were all summoned by particular Writs And this he learnedly proves by the irrefragable Authority of King John's Charter p. 100. which gives the Tenants in Capite that were no Barons a general Summonâ— only even as he himself translates the words I 'll appeal to all but him whether he does not only yield the Right which he opposes in the Sense which he puts upon Fideles but gives more than any reasonable man will insist upon for I knowâ— not that it has been urged for more than Free-holders But whereas he tells us That the word Fideles of which there has been so late mention Glos. sometimes is taken 〈◊〉 Subjects in general in another place he gives us to understand that the meaning of this word Fideles as also of these words Liberi homines liberè tenentes c. p. 17. is to be known from the Subject-matter where they are used Wherefore if such Grants were made by these as Feudataries only could not charge then others were Parties thoâ— not in his large Sense That such there were we have the Authority of Braâ—on Jani Angl. facies nova p. 1. as has been before observed tho â—he Dr. thought it not worth his noâ—â—ce Sunt quaedam Communes praestationes â—ae Servitia non dicuntur Bract. lib. 2. c. 16. p. 37. nec de consueâ—dine veniunt nisi cum necessitas interveâ—erit vel cum Rex venerit sicut sunt hiâ—agia corragia carvagia alia plura de â—ecessitae consensu communi totius regâ—i introducta Which are not called Services nor come from Custom but are only in case of Necessity or when the King meets his People as Hidage Corrage and Carvage and many other things brought in by Necessity and by the â—ommon Consent of the whole Kingdom And the Carvage which is one of the â—hings mentioned by Bracton we find â—ranted by the Magnates fideles Rot. Claus. 4. H. 3. m. 2. Conâ—esserunt nobis sui gratiâ communiter omnes â—agnates fideles totius regni nostri doâ—um nobis faciendum scilicet de qualibet caâ—catâ c. duos solidos But farther if I may be so bold he â—ells us by this Law meaning King â—ohn's Charter p. 100. the way and manner of â—ummons to great Councils was setled So that for the future p. 101. the Summons should be by particular Writs to every great Baron and in general to all Tenants in Capiteâ— by Writs directed to the King 's Sheriffâ— and Bayliffs Yet for all this plentiful Concessionâ— that here was a Right setled by Law he had before as much as in him lay over-thrown it and destroyed the wholâ— Foundation of Parliaments by a wisâ— Answer to the Record of 8. Ed. 2. wherâ— St. Albans as holding the Chief pleadâ— it's ancient Right to come to the greaâ— Councils and alledges that the nameâ— of it's Representatives appear in thâ— Rolls of Chancery The Answer per Concilium is Scrutentur rotuli c. de Cancellariâ temporibus Progenitorum Regis Burgenseâ— praedicti solebant venire vel non tunâ— fiat justitia vocatis evocandis si necesse fuâ—rit This I find thus translated Let the Rolls of Chancery be search'd if in the time of the King's Progeniâ—tors Against Mr. Petyt p. 78. the Burgesses aforesaid used to come or not and then let them have Justice in this matter and such aâ— have been called may be called if therâ— be necessity Though I am informed by such as â—nnot but know it to be so Against Jan. c. p. 111. that this mighâ—â— man of Letters has been drudging at â—ecords these sixteen years yet I do not the least wonder at his Ignorance in â—â—em since he laid not a Foundation at â—â—hool by learning Latin as he should â—â—ve done nor has Stepdame Nature â—â—dued him with Sense to understand 1. Can he pretend to Latin and â—t translate Vocatis evocandis such as â—â—ve been called may be called The â—â—st Rudiments would have taught him â—at it signifies They being called that â—â—ght to be called or such Persons and â—hings as ought Parties Papers and â—ecords And if he had look'd into the Parliaâ—ent Rolls of that very Year Rot. Parl. 8. Ed. 2. n. 261. 247. he would â—â—ve found Vocatis vocandis or Vocatis â—i fuerint evocandi which was used it were to prevent all possible Blunâ—rs the usual form of directing Tryâ—s 8 Ed. 2. n. 105. Sometimes 't was Vocatis partibus 〈◊〉 auditis eorum rationibus 2. But can he pretend to Sense â—o shall think that when Justice is to 〈◊〉 done still 't is left to Will and Pleasure with a may be Or that when Right is grounded upon any particulâ—â— Reason or Fact which only is question'd the Right would be in Questionâ— though this very thing were proved How comes the Search to be directed as the only means of deciding it Oh! but 't is si necesse fuerit I take 〈◊〉 this can be no more than that if after the Rolls were search'd farther Tryaâ— or the hearing the Parties Reasons anâ— Enforcements of the Fact were neceâ—sary they should be called To which Sense Records of the same year give full Authority Mandetur Thes. Bar. de Schaccaâ— quod vocatis coram eis Collectoribus infâ—â— inquisita contentis in petitione si necessâ— fuerit plenius veritate Rot. Parl. 8. Ed. 2. n. 204. so n. 241. faciant inde conqueâ— rentibus justitiam But more direct Rot. Parl. 8 Ed. 2. n. 210. Et si necesse fuerit quod Nicholaus
〈◊〉 la Benche Hugo D'aule junior 〈◊〉 centur tum vocentur audiantur ibidenâ— But to Partiality Against Mr. Petyt p. 79. hence 't is clear 〈◊〉 King and his Council were equally Judgeâ— when it was necessary to call them and 〈◊〉 them to come as they were of their Right and Pretences to come The King being sole and absolute â—udge of the Necessity of calling Parliaments he makes the Calling such as â—ould prove their Right according to â—aw to come as often as his Majesty â—all please to call a Parliament to be â—s much at the Disposal of the King as what is his undoubted Prerogative or â—lse he denies the King's Prerogative â—o call Parliaments at his Pleasure if he â—o not contend that he may leave out â—â—ose who had with him the greatest â—ight Tenants in Capite from the Parlâ—amentary Summons And this being â—rescribed to from before the 49. of â—en 3. between which time and the 6. of King John there was no Alteraâ—on in the Way or Right of coming to â—arliament How can he free himself â—â—om contradicting that Way and Manâ—er which he says was setled then If to evade it he say Though 't is a â—ight according to the common Rules 〈◊〉 Law yet 't is supersedable by Preroâ—tive I suppose my Superiours will give 〈◊〉 an Answer if upon this Account it â—ill be no Contradiction however â—e have enough to make us laugh while at other Particulars And thus has our Author like another Don Quixot encountring the Windmils been miserably mawld with hiâ— own Whymsies returning too quick upon him nor can Sancho Pancho hiâ— Squire afford him any great Assistanceâ— by curing some literal Mistakes The Bookseller to the Reader which are but outward Scratches while the inward Bruises remain CHAP. II. Of the Reputed Conquest SECT 1. HIS Notions of the Conquest whether more absurd or false I cannot say fall now under Consideration buâ— good man Against Mr. Petyt p. 43. fearing least that might 〈◊〉 too far improved he says this doth noâ— directly reach the Controversie between us Indeed if it were only about thâ— Members of the great Council before thâ— time for he takes in all the time before as far back as Mr. Petyt whom 〈◊〉 laughs at for it I will grant that thâ— were not to the purpose But what account can be given why the Folck-mote â—held at one certain time in the year when all the Bishops in the Kingdom were to meet together about the great Affairs of the Kingdom with all that â—ad any Property such as were to find Arms according to their real or personal Estate should of a sudden without a Conquest be turn'd into an Assembly of â—he King's Tenants upon the old legal Title I cannot comprehend If William the First divided all the â—ands of the whole Kingdom then 't is â—ot probable that others than they who derived from under him should have had any share in the Government But if he did not thus act like a Conâ—erour how is it to be imagined that 〈◊〉 old Socagers had nothing to do in â—he Great Councils Nay upon another account this is â—eedful to be considered for as a Conâ—uerour p. 39. we are told he made all the â—ree-men of his Kingdom Tenants in Military Service But if he was no Conâ—uerour in this Sense insisted on then â—ere must be a vast number of Proprieâ—â—rs that could not be any way bound but by their own free Act or Consent express or naturally implyed in yielding to be represented SECT 2. That he is so far proving the Title of William the first by Conquest that he makes him an Usurper all along proved by the History of the Conquest compared with what he says about the Titles of William 2. and Hen. 1. I would fain ask a serious Question or two about this same Conquest Had not William many Sharers in his Victories And can Mr. Dr. with all his Art and the Help of the Tutelary of a certain Profession Madam Cellier discover at the Birth which came from Conquering which from Vanquish'd Ancestors I 'll take it for granted King William conquer'd not all alone Sampson himselâ— could not have done it even with his wonder-working Jaw-bone But pray Mr. Dr. spare me another civil Question Do not you your selâ— make an Vsurper of your mighty Conquerour who swallowed all the Land of the Nation or devoured it between him and his Myrmidons You p. 35. in effect yield that his Title was by Election by reason of the Factions amongst the Saxon and Danish Nobility and People the Pope's Encouragement and siding with William and the Inclinableness of the Clergy to his Cause You might have added that before his Entrance many Normans were setled here in Power and Property It being thus William the Second who you say p. 51. had a Title by his own Sword and was chiefly assisted by the English p. 54. and Henry the First who cajold the great men and the Army had the same kind of Title with your mighty one Nor is there weight in the Objection that there was so small time between the Death of one and crowning another King p. 60. that it was not possible for the Clergy or all the People of England or any that represented the People of England to be at the Consecrations and Coronations Because whoever has had the Crown set on his Head by them that could meet upon the Occasion unless there had been a very powerful Interest or Faction against him has generally been owned for King and had a tacit universal Consent Besides all the Nation was not present when William the first was crowned any more than they were when he gain'd the Victory over Harold and therefore if these two Coronations are set aside as factious so many the other and so it must be For An Election is or ought to be Against Mr. Petyt p. 51. a free solemn deliberate sober sedate and the Lord knows what Act of the whole People where they have a Right whereby the major part of them do choose this or that Person or Thing for such or such Ends and Purposes and not an undermining crafty cheating and forcible Act of a Party or Faction for the setting up this or that Person or using this or that means for the obtaining their own Designs and Purposes Let him I say consider and make a difference between these two Acts of the whole People and a Faction and he may easily make a true Judgment of all the pretended Elections of our English Usurpers and all other Traitors whatever How easily may this Rule be applyed to the first William Against Mr. Petyt p. 35. whose Success was facilitated by the Factions among the Saxon and Danish Nobility and People as our Opponent confesses besides the Faction raised by the Pope for him and by his own Country-men who were here before and could not but be very busie for him if he
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
who have not read this Charter from falling upon this easie way of answering the Doctor 's whole Book and therefore they castrate the Charter and leave out all the provision for the Liberties and free Customs of the several integral parts of the Kingdom as if their imaginary General Council had swallowed up the Liberties and Freedoms of all them who held not of the King Nota A Tenure in Capite is when the Land is not holden of the King as of any Honor Castle or Mannor c. But of the King as of the Crown as of his Crown or in Chief and this some would rather have effected than that the Commons of England should be thought to have had any Right affirm'd by so ancient a Law Spelman's 2 part of the Glossary Tit. Parliamentum and that this was apprehended when the marvellous Discoveries worthy to be inquired into under Title Parliament Bless'd the World may well be gather'd from the printing only as much of that part of the Charter which is now in Debate If but one had an hand in it as in the Publisher's own Judgment he thought would fit his Purpose concealing the rest In that Glossary there is no more than this Spelm. Gloss. Col. 452. Nullum Scutagium vel Auxilium ponam in regno nostro nisi per Commune Concilium Regni nostri 1. Nisi ad corpus nostrum redimendum 2. Ad primogenitum filium nostrum Militem faciendum 3. ad primogenitam filiam nostram semel maritandam ad hoc non fiat nisi rationabile auxilium Nota the Omission here Et ad habendum Commune Consilium Regni de auxiliis assidendis aliter quam in tribus Casibus praedictis et de Scutagiis assidendis summoneri faciemus Archiepiscopos Abbates Comites Majores Barones sigillatim per literas nostras praeterea faciemus summoneri in generali per Vicecomites Ballivos nostros omnes alios qui in Capite tenent de nobis ad certum diem sâ—ilicet ad terminum quadraginta dierum ad minus ad certum locum in omnibus literis submonitionis illius causam summonitionis illius exponemus Et sic factâ summonitione negotium procedat ad diem assignatum secundum Concilium eorum qui praesentes fuerint quamvis non omnes summoniti venerint By the partial citation of this shred or end of the Charter 't is a clear case that Et ad habendum Commune Concilium Regni is there in express words appropriated to Tenants in Capite whatever may have been reserv'd to others in the general provision for all their Liberties and free Customes and the Publisher hath so dexterously and effectually patched the Fragments together that the Reader must be forced according to those curious Appearances to assent to the Publisher and Doctor 's fallacious Assertions that none but the Tenants in Capite made the Commune Concilium Regni the City of London and all other Cities Burroughs Ports and Towns or Parishes whose Rights are there reserved being clearly left out in the Glossary whereas 't will be very difficult to one that reads the whole together not to think that admitting ad habendum Commune Consilium Regni be there appropriated to the Kings Tenants in Chief yet the Aid and Escuage they are impower'd to assess must be such as concern'd them onely A reservation for the Liberties and free Customs of all the parts of the Kingdom following immediately upon mention of the Common Council of the Kingdom which undoubtedly had of Right and Custom a larger Power than barely the granting of Taxes But if Et ad habendum Commune Concilium Regni de auxiliis assidendis aliter quam in tribus casibus praedictis ought to be joyn'd to the Liberties and free Customs of the whole Nation reserved by King John's Charter then that darling Notion of a Parliament of the King's Tenants only no more to be prov'd than that we had Parliaments of Women as well as others falls to the ground Vid. Jan. p. 239. And by the Dr's good favour there was no need of proving that amongst the other Customs of the Cities Burroughs Against Jan. p. 4. c. this of enjoying a Right of being of or constituting the Common Council of the Kingdom was one of them any otherwise than from the express words of the Charter nor could I justly be blam'd for not going first to prove that such were Members before my saying that if they were so before and at the making of the Charter their Right is preserv'd to them by it and is confirm'd by the Charter of H. 3. c. 9. Since in all mens Logick but the Dr's the Argument is to be laid down before it can be made good and the thing to be prov'd here is but the minor of a Syllogism Which Argument being founded upon Fact which the Dr. would have to be the onely Controversie between us p. 1. I may wave for a while and yet there 's no doubt but I prove a Right if I shew that amongst other Liberties and free Customs all parts of the Kingdom here enumerated were by the Words of King John's Charter to enjoy a Right ad habendum Commune Concilium Regni The Dr. agrees So Matth. Paris Against Jan. c. p. 62. that King John's Charter and that which H. 3. granted in the 9th of his Reign were alike in all things Wherefore if I can shew the likeness I hope 't will qualifie and abate our Author 's great Wrath for my proving from thence a provision for a more General Council than one made up of Tenants onely For p. 63. being like 't is not necessary that the Words should be the very same but the Sense and if we are sure by Record that we have the right words we are certain if Records may explain Matthew Paris that the likeness he meant consisted in the Sense Since therefore in the Great Charter granted 9 H. 3. as I find also one in Secundo there is in a Chapter intire by it self The hand-writing of E MS. peues Dom. Petyt as the Lord Cook cites it Scutagium de caetero capiatur sicut capi consuevit tempore H. avi nostri and no other provision is in any part of the Charter made for the Great Council of the Nation than what is contain'd under the Liberties and free Customs of every particular Place and yet this wholly agrees with and expresses the Sense of King John's Et de Scutagiis assidendis must be disjoyned from ad habendum Commune Concilium Regni aliter quam in tribus casibus praedictis And if so then the Tenants in Capite who are under that Division have no express provision there made for their Summons to the Great Council of the Nation but are with others left for that to the antient Law as it was in the time of H. 2. whose Laws both Charters that were in
nullo dissimiles reinforc'd And the Charter 9. H. 3. being after a strict Inquisition concerning the Liberties which were in England in the time of King H. that King's Grandfather Mat. Paris ed. Tiguri f. 305. it appears that the Tenants in Capite had neither in the time of H. 2. nor at any time after Right to impose any Tax besides Escuage only for the taxing of which they were to have Summons as is express'd and provided for by King John's Charter and if both Charters were in every thing alike was the Custom in the time of H. 2. And though some of the Arguments in my Book may drive at their being a Council for Tallage too Vid. the Additions yet 't is only upon the Advantage is given me from the Dr's making the Tenants a Council for all manner of Aid as well as Escuage This great Antiquary keeps a pother to make us believe that the Records of H. the Third's Charter are of no credit compar'd with his interpretation of Matth. Paris and in answer to the Conviction from the manner in which the Charter of H. 3. expresses the same thing with that of King John's tells us magisterially that the Great Charter commonly attributed to H. 3. was non of his but properly the Charter of E. 1. But when he sayes it was rather his Explication or Enlargement of that Charter of King John and Henry 3. p. 63. He by an unlucky dash with his pen hath spoil'd all and yields the Cause granting that Et de Scutagiis assidendis ought according to the meaning of King John's Charter to be divided and in another Clause from Et ad habendum Commune Concilium Regni and consequently that the Common Council of the Kingdom consisted of more than Tenants in Capite If Against Jan. c. p. 64. as the Dr. contends There is no provision made for any Summons to Great Councils or Parliaments in the Charter confirm'd 25 E. 1. And yet that Charter as appears by Record is word for word the same with that which was granted 9 H. 3. and the Charters of H. 3. and King John were not found to disagree in any thing then there was no Provision made in King John's Charter for any Summons to Great Councils or Parliaments no not so much as a general Provision which I yield And if he will have it that the Charter of E. 1. was most properly his Explication or Enlargement of that Charter of King John and H. 3. Does he not therein yield that there was provision made for Summons to Great Councils in the providing for all the Liberties and Free Customs of particular places and if ad habendum Commune Concilium Regni be taken in King John's Charter as joyn'd with the Customs in the several parts of the Kingdom and so that of being of or constituting the great Council is exprest among other their Liberties and free Customs The Charter of Ed. 1. may well be taken for an Explication of the Charter of King John and if it were doubtfull what King John's Charter meant by the Commune Concilium Regni the other makes it undeniable that no other Common Council is meant in King John's but such as was provided for by the Reservation of the Liberties and free Customs even of every Parish and as Generals include particulars tho the Charter of H. 3. and E. 1. have not the Right ad habendum Commune Concilium Regni Nota The provision for raising Escuage is no less general in the Charters of H. 3. and E. 1. express'd yet they do not in any thing disagree from King John's Whereas if the Council which according to the Charters of H. 3. and E. 1. and the practise in the time of H. 2. was to raise Escuage was the only Common Council of the Kingdom intended by King John's Charter 'T is evident that there was a Disagreement between the Charters for there is no provision in general or particular for any such Common Council of the Kingdom for particular provision there can be no pretence and the same general expressions which affect them take in others with them unless they were the only men that had Liberties and free Customs in any part of the Kingdom even as late as 25 E. 1. Against Mr. Petyt p. 39. which is so ridiculous a Whimsey that it deserves no answer tho it be patroniz'd by the Dr. who supposes that Tenants in Military Service and they to serve his Turn must be all Tenants in Capite were the only Free-men of the Kingdom till 49 H. 3. But it seems others had then a general Enfranchisement procur'd by the successful Barons An. 49 H. 3. to lessen their own Power 'T is particularly to be observed that this so mistaken and controverted part in King John's Charter concerning the Summons of all the Tenants in Capite was not only left out in the Magna Charta confirm'd in Parliament 2 H. 3. which was but 3 years after the making of King John's Charter and in the Magna Charta confirm'd 9 H. 3. which was but ten years after the making of King John's but likewise in the Confirmation of the Charter An. 37. of that King Henry as appears by the Legier book of the Priory of Coventry in the hands of that greatly learned Gentleman MS. Penes dominum Marsham John Marsham Esq but also there is not a word of it in the Magna Charta confirm'd 25 E. I. which the Dr. yields to be an Explication of King John's and instead thereof whereas the assessing of Escuage was mentioned about the middle of King John's Charter in those Charters of H. 3. and E. I. there is a particular and distinct Chapter viz. 37. concerning Escuage and that the very last except the saving and reserving to the Archbishops Bishops Abbots Priors Templars Hospitalers Earls Barons and all others as well Ecclesiastical as Secular persons all their Liberties and free Customs which before they had But as to the way of raising Escuage in an especial manner it is referr'd to the ancient course of Law as 't was in the time of H. 2. whose Laws in general were then intended to be confirm'd I cannot but make a farther Remark taking in that evidence of Fact which for a while I laid by that in all those Charters since King John's upon the several Confirmations the Arch-bishops Bishops Abbots Priors Earls Barons Knights Free-holders and all of the Kingdom are mention'd as granting to the Crown a 15th of all their moveable Goods and these that granted the Subsidy Register f. 175. in the old Register of Writs an Authority uncontrolable are called Commune Concilium Regni Wherefore 't is impossible for any man of Reason that considers to fancy that King John's Charter in the sense of the Dr. and others could exhibit the full form of the Common Councils of the Kingdom or Parliaments till 49 H. 3. Take my sense of the Council which way
Council of the Nation p. 13. 'T is strange there should not have been the same Care taken that they might be summoned as well as the Tenants in Capite Certainly they came not to them by instinct nor is it scarce probable that they would leave their Ploughs and Country Business to travel from one remote part of England to another to these great Councils which seldome continued above three or four days if they had had Right so to do This is as trifling as the rest for if the Common Law took care for their Coming and for their general Summons nor had their Right been denied them there was no need of special Provision by that Charter Upon my seventh Head of the Distinction between the Great Council and the Curia pro more he attacks me very vigorously and having before tax'd me with new modelling the Government wild p. 1. extravagant and confus'd Notions unintelligible Vagaries p. 47. impertinent Rhapsodies p. 32. 41. 53. 62. 63. perverse Interpretations Ignorance and Confidence to say no more monstrous abusing of History cheating and abusing my Readers and wresting Records and Histories with a long Et caetera out comes this gentle Rebuke And indeed as he deals with Sir Henry Spelman's Glossary p. 96. in saying the second part was not his own so doth he shuffle off all Records and Histories which are directly against him by saying the Curia or Great Councils there mention'd were but an ordinary Curia or Council and such as in his own Judgment contain any thing that makes for him The Councils there spoken of are Great and General Councils to be sure 'T is doubtless an hainous thing to call that a Great or General Council which is so in my own Judgment But if I prove and that out of himself too that there came more to the King 's Great Councils than his Tenants in Chief and Officers such as compos'd the Curia held pro more thrice a year surely it lies upon him to shew that at any one Council where more than Tenants were charged Tenants only were present And I affirm that he neither has nor can produce one Authority which upon Examination can signifie any thing And to retort his last Charge as he deals with Sir Henry Spelman in putting upon him his own or his Friends Sense So he doth shuffle over Records which are directly against him and supplants them by History seemingly for him And if the last contain any thing which in his own Judgment makes for him the Council there spoken of is a Great and General Council of Tenants in Chief only to be sure though the Record mention more Our Author says of the Curia which I contend to have been pro more or ordinary If he can make the Court holden coram Rege Consilio before the King and Councel which he hath made his Instance for his ordinary Court and be the same with the Common Council of the Kingdom establish'd by that Charter meaning King John ' s he gains the point but if it cannot be done he may very well blush at his own Confidence to say no more Truely I should rather blush at the want of Sense in that Paragraph if it were mine for I cannot well answer for making the Court and be the same But since he has informed me where the point lies I can easily gain it by proving that the Court holden coram Rege Consilio became the Court of which our Dispute is as it had the same Power whether held by the same persons or at the same times is not material so that it be the Kings Curia or Magnum Concilium as the Court held pro more was In Order to the clearing this he may please to understand that the King's Court had the only Cognizance of the Kings Grants or Charters agreeable to which Bracton lib. 2. cap. 16. p. 34. Bracton says De chartis verò regiis factis regum non debent nec possunt justiciarii nec privatae personae disputare nec etiam si in illâ Dubitatio oriatur possunt eam interpretari et in dubiis et obscuris vel si aliqua dictio duos contineat intellectus Domini Regis erit expectanda interpretatio et voluntas cum ejus sit interpretari cujus est concedere et etiam si omnino sit falsa propter rasuram vel quia fortè signum appositum est adulterinum melius et tutius est quod coram ipso Rege procedatur ad judicium Curia coram Rege Cons. But of the King's Charters and of the Deeds of Kings the Justices or private Persons neither ought nor can dispute nor if any doubt arises therein can they interpret it and in doubtful and obscure things or if any word contain two meanings the King's Interpretation and Will is to be expected since it belongs to him to interpret who made the Grant and also if it be wholly false by reason of Rasure or because perhaps a counterfeit Seal is put to it 't is best and safest that Judgment should be proceeded to before the King himself Here was a 〈…〉 Court for these matters held before the King that is before him and his Council And thus 18 Ed. 1. The Bishop of Carlisle produces the Charter of Richard the First Ryley placita Parl. f. 20. about the Advowson of the Church of Burgh this was before Thomas de Weyland and his Companions Justices of the King's Bench but because they did not do them Right he Petitions that the King would do him Remedy and Grace upon it because none but Kings themselves ought to judge of Kings Charters This is received before the King and his Counsel in Parliament and because there was need of a Certificate to be made in the Case 't is referred to the next Parliament that is when it relates to any Judgment to be given Counsel then to sit But the Business as I find many of the like kind upon the Parliament Rolls was properly brought before the Kings Counsel in Parliament who Jani Anglorum facies nova p. 190. as I before observed succeeded into the places of the Tenants in the Curia and indeed I see not what other Account can be given of the Lords Jurisdiction As this Counsel acted in Parliament with the same Power which the Tenants had exercised before so we find them sometimes acting like the Tenants in the Curia in the Intervals of Parliament as in the 33. of Ed. 1. after the Parliament was dissolved and all sent home Ryley f. 241. f. 256. but the Bishops Earls and Barons Justices and others of the Kings Counsel Several things are transacted coram toto Consilio and Judgments given secundum consuetudinem Curiae Indeed we often find that when Matters of Publick Concern or which as they say concern'd the Treaty came before them they never undertook to determine upon them but left them to the next
of granting Aid and Escuage which onely is mentioned in that part of the Charter which relates to the Curia whether ordinary or extraordinary I say continued to the 34. th of Ed. 1. at least Jan. c. p. 192. of Right it should unless swallow'd up in Parliaments But whenever the Court which granted such Aid as the Charter means ceas'd to be held pro more thrice a year it ceas'd to be an ordinary Curia This might have been either by the pleasure of the King who needed not to summon his Tenants but when he pleased Or else it might have been in the 49th of Henry the Third Against Mr. Petyt p. 110. when our Author says there was a new Government I agree with him that the King 's ordinary Court continued in the several Kings Reigns Against Ian. c. p. 53. in all its branches and divisions and derivative Jurisdictions and yet not the same any more than a man is the same with his Executor that represents his Person and is the same in Law The House of Lords had the Jurisdiction of the ordinary Curia most properly being as he himself yields 't was ex taâ—tâ multitudine of men holding in Capite that some had the special Writs which made them of the upper House and coming in the Degree and Circumstances of Tenants in Chief they had the same Power The Justices and Officers that were not Tenants in Chief must needs have been but Assistants in the Ordinary Curia as they have ever been in the House of Lords and the inferiour Tenants without doubt were to serve on Juries as the Knights were Jurors in Berklay's Case before the House of Lords nor do I find that these inferiour Tenants had any other Power or Interest except that of giving Taxes which is the only Power which our Author seems to yield to the greatest Council The Power of the Justices Itenerant or of them that were setled at Westminster-hall was derived from the King and his Curia either ordinary or when it cas'd to be ordinary yet in effect continued the same Court. And thus as late as the time of Edward the Second you shall find the Curia then not only to have Writs of Error brought thither or to impower the Barons of the Exchequer who were properly under it to determine matters concerning the King's Revenue or concerning Tithes but for Causes of all Natures to be tryed before any Judges they awarded the Writs and appointed the Judges sometimes mandetur Justiciariis de utroque Banco Rot. Parl. 8 Ed. 2. r. 209. These Benches were very anciently fix'd at Westminster-â—all but still they were so dependant upon the King 's more immediate Curia that often they were only to hear the Cause and certifie to the higher Court what appear'd to them as was usually done by those who were assign'd to hear the Petitions delivered in Parliament Sometimes Judges were impowered Ad audiendum terminandum matters tam ad 〈◊〉 Regis quam aliorum But certain it is that where an Estate was deriv'd from the King's Grant or the King 's Right and Title might be affected by any matter in Question 't was usual for the Curia to order that Judgment should be stay'd till there was a new Power had after Certificate how the matter stood Thomas de Multon and Anthony de Lucy Rot. Parl. 9 Ed. 2. n. 65. pray that there being need of inspecting the Rolls of Chancery in order to the clearing their Title to certain Lands there might be a view of the Records and Remembrances Part of the Answer is as follows Mittatur ista Petitio sub pede sigilli Willielmo Inge sociis suis Justiciaâ—iis Regis ad placita Regis coram Rege teâ—enda assignatis unà cum processu super â—egotio in dictâ Peitione contento coram Rogero de Brabanzon sociis suis priâ—s habito quem quidem processum idem Rogerus per breve Regis consilio Regis apud Lincolnum liberavit mandetur eis per â—reve quod examinato diligenter toto negoâ—io praedicto vocatis servientibus Regis aliis qui fuerint evocandi in negotio illo â—rocedant prout de Jure fuerit faciendum Ita tamen quod Rex super Recordo processu dicti negotii certioretur antequam super hoc ad redditionem judicii procedatur serutendum insuper in Cancellaria in Scaccario si necesse fuerit rationes evidentiae siquae pro jure Regis in hac parte poterint inveniri Si necesse sâ—erit It seems the Justices of the Common Pleas Brabanzon and his Fellows not being particularly commission'd could not proceed to Judgment for want of Power to look into the Rolls of Chancery nor could the Judges of the King's Bench though they had Power of Inspection then given them proceed with effect till they had certified the King in his more immediate Curia The Heirs of Bartholomew Redman â—â—t Parâ— 8 Ed. 2. n. 114. petition that whereas they held Lands of the Abbot of St. Bennet by certain Services which Land they had let to the Queen she obliging her self to discharge the Services but had not they might have Grace and Remedy This was to be examined in Chancery Responsa 〈◊〉 per Coâ—ci iâ—m but the Judgment was referred to the Curia Reseratur Regi Rex saciet justitiam To this Curia all manner of Justices were accountable for their Actions So the Judges of Assize in Cornwalâ— being complained against for acting irregularly Rot. Parl 8 Ed. 2. two are appointed to examine the matter and to certifie the Council who had reserved the Judgment to themselves In short the supream Judicature over all Causes was in this Curia the House of Lords the very same which the Court of Tenants in Chief with such others as us'd to come pro more had before and yet there was a common or ordinary Administration in the Judges But our Author who is by Fits the kindest hearted man in the World proves my Notion to my hand out of Britton Against Jan. c. p. 28. 29. Nous voluns quae nostre Jurisdiction soit sur touts jurisdictions en nostre Royalme which where it relates to Judicature must be meant of the King in his Curia or House of Lords and there as Judge the King has Power in all Felonies Trespasses Contracts and in all other Actions personal or real But because it would be too great a Trouble for the King in that Court to hear and determine in all plaints c. Therefore En primes en droit de nous mesm de nostre Court avouns issint ordyne que pur ceo que nous ne sufficens my en nostre proprie person à oyer terminer touts quereles del people avant dit avouns party nostre charge ex plusieurs parties sicome icy est ordyne Can any thing be more plain than that all inferiour Courts were deriv'd
concerning taking of Salmons a Record tells us was Rot. Pat. 14. Ed. 2. De inquirend de Salmonibus captis in Com. Glou. contra statutum Statutum de Communi Consilio Regni ordain'd of the Common Council oâ— the Kingdom The Historian expresseth this Parliament thus His temporibus convocatis â—â—tentioribus terrae suae apud Westmonasterium condidit Rex statuta quae Westmonasterii secundi dicuntur Ma. West fo 412. l. 35. here the more powerful men of the Land were called or summoned to that Parliament not a Syllablâ— of the Word Communitas or Commons but the Dr. will not deny but that the Commons were part thereof for the 13â— of E. 1. was about 21 years after 49. H. 3. Anno 27. E. 1. Rast. Stat. fo 47. The Statute of Fines was ordained De Communi Concilio regni yet no mention is made in the body Rot. Claus. 8 E. 2. m. 8. of the Assent of Lords or Commons notwithstanding they gave their Assent thereto otherwise it could not have been a Law oâ— Statute Rot. Parl. 15 E. 3. n. 50. dors for the Parliament of 15 E. 3 tells us that the Statute of Magna Charta and other Statutes were made by King Peers and Commons and so this 27 E. 1. And there are Writs of Summons Rot. Claus. 27 E. 1. m. 9. dorso de Parliamento tenendo to this Parliament which Mat. Ma. West fo 431. l. 48. Westm. more Historicâ— thus generally delivers Dominica secunda quadragâ—mae citatis magnatibus regni apud Westmonasterium no Commons particulariz'd Anno 28 E. 1. Rast. Stat. fo 49. The Statute called Articuli 〈◊〉 Chartas Rot. Pat. 7 E. 3. pars prim m. 21. de inquirend de diversis provisoribus Hospitii Regis as a Writ upon the 2. Chapâ— concerning Purveyors proves was orâ—â—ned de Communi Concilio regni by the â—mmon Council of the Kingdom The Dr's * * * Mat. West fo 433. l. 36 Historian mentioning this â—â—rliament writes in Octabis Sancti Hillatenente rege Parliamentum suum Lincolâ— Conquesti sunt Comites Barones not a â—â—rd of the Commons yet most certain â—s they were also there as is evident by 〈◊〉 Writ of Summons and expences to that â—â—rliament Mr. Pryn 4th part of Parliamentary Writs p. 12 13. 16. Rot. Claus. 29. E. 1. m. 17. dorso and the Sheriff of Kent's being â—mmanded to levy the wages for Waresius Valoignes and Henry de Appletrefield â—ights of the County nuper ad nos de praeâ—to nostro usque Lincolniam pro Comitatu â—â—dicto venientibus ibidem nobiscum super versis negotiis nos populum regni nostri â—â—ialiter tangentibus tractatur ' to treat with â—e King upon several Affairs especially â—uching the King and People The Statute of 1 E. 3. was de Communi â—â—ncilio regni Concordatum Statutum in â—â—rliamento apud Westm. Rast. Stat. 1 fo 64. agreed and â—â—acted by the Common Council of the â—â—ngdom Rot. Pat. 1. E. 3. m. 20. in a Parliament at Westminster 〈◊〉 Rot. Claus. 2 E. 3. m. 20. as several other Records ennumerate â—he several parts thereof Per nos Praeâ—â—os Comites Barones communitatem regni ibidem existentes By the King and Prelates Earls Barons and the Commâ—â—nalty of the Realm there being Now what saith the Historian Wâ— thus he expresseth this Parliament Walsingham f. 126. l. 28. 29. Pâ—â—natale Regina cum filio suo ante festum â—â—phaniae venit Londonias ubi cum magno gâ—â—dio muneribus est suscepta convenit eâ—â—illuc tota Regni Nobilitas citata per prius parliamentum tenendum ibidem in Crastâ—â—dicti festi But to press the Dr. with full weighâ— shall afford him some presidents of â—â—dresses to the whole representative Body the Commons of England as to Wiâ— which took in all the Members before 〈◊〉 suppos'd Conquest or Nobles which 〈◊〉 as comprehensive after 1. Tressages Communes A les Tressages Communes de cest â—â—sent Parlement Rot. Parl. 11 H. 4. n. 36. Pur Johan Bartrum As Tressages Communes Rot. Parl. 13 H. 4. n. 23. Pur Labbe de Furneys c. que pâ—â— considerer les premisses prier à nostrâ—â— Sâ—nieur le Roy de grantier per Auctorite Parlement c. In the like form Pur Tho. Chaucer Esq 2 H. 5. n. 18. c. Peticion pur Mairs Conestables la Compaigne de â—â—â—staple a Caleys directed as aforesaid As Tressages Communes supplie huâ—â—â—ment Lucie que fuist la feme Esmond â—â—gairs Count de Kent Rot. Parl. 2 H. 5. n. 47. Rot. Parl 9 H. 5. n. 19. Que pleise a voz Tressages discretions â—â—â—siderer Pur le Countess de Marche Rot. Parl. 3 H. 6. n. 29. Ibid. n. 32. pleise a Tresâ—es Communes Pur John Lescrop Chivaler in like manner Treshonorables et Tressages Communes Labbe de Newenham against Monsieur â—â—lip Courtnay Chivaler Rot. Parl. 4 H. 4. n. 12. A les Treshonourables Tressages â—ommunes de cest present Parlement supâ—â— treshumblement c. Upon which petiâ—â—on and others assented to after deliâ—ered to the King and Lords the Abbot â—as relieved and Sir Philip was adjudg'd â—nd awarded to the Tower As Treshonourables Rot. Parl. 2 H. 5. n. 16. Tressages Comâ—unes c. Pleise a vostre Tressages discretions de â—nsiderer auxi prier nostre Seignieur leâ—oy Pur Thomas Salman de grantier ordeigner en son dit Parâ—ment peradvys assent de toutz les Seigâ—eurs Espirituelx Temporelx c. Qua quidem petitione coram Domino Reâ—â— Dominis Spiritualibus Temporaliâ—â— existentibus lectâ materiâ in eadem â—â—nius intellectâ idem Dominus Rex de asâ—â—nsu Dominorum predictorum ad requiâ—ionem Communitatis predicte c. As Tressages Rot. Parl. 8 H. 6. n. 51. Treshonorables Commons de cest present Parlement monstrent les Mair Aldermans Communes de la 〈◊〉 tee de Londres que please avoz Tressagâ— Tresprudez discretions considerer 〈◊〉 As Tresgratious Rot. Parl. 11 H. 4. n. 35. Pur Monsieur Johan Trebeel Chivaler Tressages Sires 〈◊〉 valers Communes de cest present Parlâ—â—ment supplie treshumblement c. Quele pâ—tition 〈◊〉 devant le Roy les Seignieurs â— Parlement en entendue le dit Johaâ— amesme en plein Parlement Rot. Parl. 4 H. 5. n. 17. c. pur Johâ— Alleyn autres a a a Rot. Parl. 4 H. 4. n. 19 Pur Monsieur Thomas Pomeroy Chivaler Ales Treshonourables Tressagâ— Communes de cest present Parlement 3. Honourables Tressages Communâ— b b b Rot. Parl. 3 H. 5. pars 1. n. 7. Pur Henry Barton As Honourable Tressages Seâ—nieurs les Communes de cest present Parlâ—ment c. c c c Rot. Parl. 3. H. 5. pars 1. n. 9. Gentz de la Villae de Sondwich As
Statute of the Great men The Law made à Rege ib. p. 11. Baronibus Populo had the like Legislators and I do affirm Against Mr. Petyt p. 13. that the word Populus is not to be found in any of these Thus I have wonderfully discovered the unsoundness of Mr. Petit's Assertions ib. p. 2. though it will be objected I have jumpt over several Arguments and they material ones concerning Great Councils before the Conquest Upon which it follows that if the Populus were admitted after it must be by the bounty of the Conquerour who might at pleasure revoke his Concessions For the Story of Edwin of Sharnborn b. p. 24. supposed to have enjoyed his Lands by a Prior Title 't is a famous Legend and trite Fable though he had the King's mandat for Recovering his Estate Sir Edward Coke ib. p. 30. who to avoid the evidence that our English Laws were the Norman Laws Against Jan◠c. p. 89. said The Laws of England are Leges non scriptae said it precatiously without any Foundation or Authority Besides 't was ridiculous as if they were known by Revelation divinely cast into the hearts of men Though some may impertinently ask me Whether there were not Laws before Writing and that without Revelation or divinely casting into the hearts of men But that Against Mr. Petyt p. 167. if affirmed is a palpable and gross Error What though that Clergy-man-Lawyer Bracton agree with Coke yet he spoke out of Ignorance or Design when he said Absurdum non erit leges Anglicanas licet non scriptas leges appellare Bracton l. 1. fol. 1. William the Conquerour brought in a New Law Against Mr. Petyt p. 29. and imposed it upon the People The greatest part of the Antient Law as it was brought hither by the Normans was exacted and observed by ib. p. 43. and upon only the Normans For the English they had no Property or Rights left And so were all Outlaws This Domesday-Book in every County shews though 't is said several English-men are there mentioned holding by Titles not derived from the Conquerour p. 176. And for a farther proof of this King William ' s Law to all the Freemen of the whole Kingdom was made only to Tenants in Military Service ib. p. 39. which were French p. 35. Flemings Anjovins Britains Poictovins and People of other Nations When this King in the 4th of his Reign summon'd Anglos Nobiles Sapientes suâ lege eruditos to give an account of their Laws 't was a Sham Summons for no English were Nobles nay none were so much as Free-men but the Foreigners amongst whom William divided the Kingdom and therefore Strangers that had their Estates came in their steads and gave an Account upon Oath of the Laws before their own time as they us'd to do of matter of Fact p. 39. when sworn upon common Juries William the Second and Henry the First were Usurpers and Traitors p. 51. notwithstanding the People's Elections Clerus and Populus are to be understood onely of Tenants in Capite p. 56. never of the inferiour sort of People Wherefore they dote who say that the inferiour Clergy nay the dignified not Tenants in Capite came to Great Councils before 49 H. 3. It 's very true Against Jan. c. p. 70. that in our Ancient Parliament-Rolls the Knights of Shires are sometimes called Grantz des Counties or Great men of the Counties and well they might for without doubt they were most commonly the greatest Tenants in Capite under the degree of Barons in each County Against Mr. Petyt p. 116. 117. And for evidence of this the Great Tenants in Capite that were no Barons and perhaps the least Tenants in Capite in the times of Ed. 3. and Ric. 2. are call'd autres grantz or Grandes autres Nobles which were Barons Peers called by the King 's Writ into the Lords House at pleasure and omitted at pleasure Wherefore 't is to be observed that the Knight for the Shires might well be Noble or Grantz since they were call'd sometimes to sit in the Lords House And whether they that were chose for the Counties and did not sit in the Lords House as Barons Peers were Grantz or Nobles perhaps may be a Question As a choice piece of Learning I must acquaint you that though sometimes Fideles signifie qui in Principis alicujus potestate Glos. p. 15. ditione sunt qui vulgo subjecti appellantur Subjects in general yet unless there be special matter to shew the contrary 't is meant of Uassals who having received Fees are in the Retinue of some Patron or Lord if in the King's Retinue they are Tenants in Capite So when we find Writs directed Omnibus Christi Fidelibus Glos. p. 17. Here when there is no more Subject matter to determine it than when 't is omnibus Fidelibus Regni they must be our Saviour's Tenants in Capite When the Form of Peace Against Mr. Petyt p. 125. in the 48th of H. 3. was by the Assent of the King the Bishops and the whole Community of the Kingdom can any man say the Earls and Great Barons these Tenants in Capite gave not their Consents They must be included in and were a part of the whole Community of the Kingdom And indeed to speak the truth it is not denied against me Against Jani p. 71. but proves their Notion to those Vnwary Readers whom they seduce to have some good opinion of their Fancies Though that Form of peace is said in the Record to be Actum in Parliamento London Against Mr. Petyt p. 208. yet the Prelates and Barons were such as sided with Montfort p. 120. and the Community was the Body of his Army and the Citizens and other of the Faction they were not the Community of the Prelates and Barons onely as at other times Nay here were the Citizens and others besides the Army And yet the Community or Body of the Army took in all besides the Prelates and Barons And this must needs have been the Army Mat. Westm. p. 394. Posted convenientibus Londini Praelatis c. partis illius quae Regem suum tam seditio è tenuit captivatum because 't was after their work was over that the Assembly at London was And the Army it must be though as 't is idely objected it is far from appearing that all the Bishops Earls and Barons which consented had been in Arms. Though they that were of the Faction as is usual caball'd together and as some will say onely resolved upon what they would press the King to they hereby Statuebant c. made Laws before the consent of the King and all the Bishops Earls and Barons and it should seem before all were assembled or could be a Parliament And which such as never intended to understand will make a wondring
at the Community was the Body of Montfort ' s Army Against Jan. c. p. 26. and the Citizens and others of the Faction Against Mr. Petyt p. 125. yet here at this very time and place the Community of the Kingdom of England must needs be the Community of the Barons and Great men Tenants in Capite by Military Service and no other Not onely because here was the Body of the Army and Citizens and others of the Faction but because as is clear from an impregnable instance viz. of the same kind of Council which sent the Letter to the Pope in the Case of Adomar or Aymar de Valentia besides the Earls p. 126. 127. Noblemen or Barons Great men there were the Tenants by Military Service that held of and attended the Barons and Great men and when the King said that though He and the Great men should be willing that Adomar who withdrew himself out of the Kingdom should return tamen Communitas ipsius which is the Community not his would not suffer his coming into England the Great men were the Kings Friends p. 121. the Community his Enemies So that here are two Armies the Great men the King's Friends on one side and the Community his Enemies on the other which is just such another Council as that in the 48th yet without doubt none of the King's Party or Friends were there Rot. Parl. 42 H. 3. m. 3. n. 9. Though in the Articuli Cleri 9 Ed. 2. about fifty years after we find Petitions presented by the Clergy temporibus progenitorum nostrorum quâ—ndam Regum Angliae in diversis Against Mr. Petyt p. 121. Parliamentis Which includes the time of H. 3. Grandfather to Edw. 2. At least this was meant of several Armies and so was the Parliamentum Oxon. Against Mr. Petyt p. 192. but six years before the Military Parliament of the 48th an Army being a Parliament in the sense and general use of the word at that time ib. p. 183. that is a great Assembly Convention or Meeting of the Faction and their Army And thus in the 30th of this King the Parliament is call'd the Vniversity of the Militia that is of them Qui militare servitium debebant the Milites Fideles It seems in many of these Parliaments or Armies chuse you whether the Clergy in their Canonical Habits address'd themselves to the Military men upon which sort of Parliaments they could not fail of prevailing with their brutum fulmen of Excommunication and Ecclesiastical Scare-crows What Against Mr. Petyt p. 135. is Petyt so ridiculous to have the Commons an essential part of the Parliament from Eternity 'T is plain that the Commons began by Rebellion Nota. To lessen their own power because their Constitution was not forc'd by the Barons with their Swords in their hands or promis'd to them then Ib. p. 226. but began from the King's pleasure when the Rebellion was over and the King was restored to his Regality Post magnas perturbationes enormes vexationes inter ipsum Regem Simonem de Monteforti alios Barones motas sopitas And none but Tenants in Capite were Barons before Ad summum honorem pervenit ex quo c. because then and not before the word Baro became a word of greater Honour Against Mr. Petyt p. 226. that is appropriated to Tenants in Capite or their Peers So that before 't was so appropriated more were Barons What though in the Letter to the Pope Jani c. p. 244. the Nobiles portuum maris habitatores necnon Clerus Populus Universus Against Mr. Petyt p. 157. are named yet these troup of words were only to make an Impression upon the Pope who good man knew nothing of the English Constitution or what was done here but would think all they were assembled in such a Great Council as other Parts of Christendom then had I shall not scruple to discover some mysteries to you The Liberi Homines were Tenants in Capite or at least their Retinue and Tenants in Military Service Glos. p. 26. which were with them at Runnemede These liberi homines or Free-men were the onely men of Honour Faith Trust and Reputation in the Kingdom These were the Free-men which made such a cry for their Liberties ib. p. 27. as appears by Magna Charta most of which is onely an abatement of the Rigour and a Relaxation of the feudal Tenures Nay Against Mr. Petyt p. 39. 't is to them these Free-men onely that the Grants were made They that are there mention'd holding of the King in Fee Farm Vide King John ' s Charter petit Serjeanty free or common Socage and Burgage held not so Jan. p. 181. But they all held by Knights Service and so were the King's Barons Of these Barons some might be Villains for that a Tenement or Possession neither added to Glos. p. 10. or detracted from the Person of any man if free or bond according to his Blood or Extraction ib. p. 30. Nay the Freemen or Tayns Theyns were anciently no part of the Kingdom for that was all divided into Frank-pledges of which there was to be a general view in the Sheriff's Tourn but these Frank-pledges were all pitiful Fellows bound with Sureties to their good behaviours ib. p. 31. which the Theyns were not .. Which answer his quotation out of Briton Glos. p. 31. In after times some might have had particular Charters of Exemption or else generally such of them as grew to be Great men were excused Whereas Mr. Petyt contends Against Mr. Petyt p. 177. that the liberè tenentes de Regno came to the Great Councils 't is a giddy Notion Whoever heard of Tenure of the Kingdom Though indeed we find in Domesday Book that such an one holds de Comitatu But more directly to the point Herefordshire Castellum de Cliford Such a Castle est de Regno Angliae non subjacet alicui Hundredo neque est in consueâ—â—dine ulla And I 'll warrant it he with his designing Interpretations Against Mr. Petyt p. 1. will render it That this held not of the Kingdom but that it was of it or in it and so were the Free Tenants But to load this Opinion according to the literal meaning of the words Omnes de Regno p. 187. which sometimes occur all Copy-bolders all Tradesmen all Bondmen and Villains and all Servants were Members of Parliament Yet there having been no Representatives before 49 H. 3. all the Inhabitants of Cities Burroughs holding in Capite or Chief and several Towns Corporate not holding in Chief came to the great Councils in their own Persons which some will say made a greater Body than the Inferiour Proprietors and the Representatives of these Places and were Persons of as mean condition For the Lords themselves they have no better Against Mr.
and his Progenitors Peers and the Commons of the Land Rastal Stat. 15 Ed. 3. c. 1. 't is declar'd that 't was made Per le Roy Peers Commune de la terre as other Statutes made afterwards even as late as Edward the Third and I hope I have satisfi'd every Body that the Commons in the sense as then taken came not to the Great Councils till the 49th of H. 3. Whereas the Charter pretends at the end to have been made the 9th of that King Nay there is this farther Evidence that the Charter of Henry the Third was not made in the 9th of Henry the Third and therefore not till the 25th of Edward the First though confirmed in the 15th which is that Matthew Paris himself who explains Records better than they can explain him agrees that 't was made praesentibus Clero 〈…〉 magnatibus Regionis Mat. Par. â—d Tigurâ— â— 311. So 〈…〉 or besides 〈…〉 the order of the 〈…〉 de la terre were the Great men Tenants in Capite The Author whom I now animadvert upon has a Nonsensical Argument that there were others obliged besides Tenants in Chief and that were or had right to be Not Fact onely of the Common Council of the Kingdom Vid. supra cap. 1. though not upon the accounts mentioned in the Charter As Falcatius de Brent who by reason of great Possessions was to come etiam non vocatus and so without the forty dayes Summons required to the purposes there mentioned Jan. p. 13. But this is precariously said Jan. c. p. 89. So he would also prove from the Charter of H. 1. that they who were Members of the County Court were to be summoned to the Great Council upon the King 's necessary occasions p. 34. or de arduis Jani p. 14. But in this he cheats and abuses his Readers Against Jan. p. 62. and p. 63. Jan. c. p. 248. he produces a Statute in the Year 1427 which falls within the Reign of H. 6. of the Neighbouring Kingdom of Scotland where the Feudal Law to be sure had as great force as here which shews that the Free Tenants came to their Parliaments in their own Persons But the Scottish Government neither was nor is the English any more than every like is the same He shews us Jan. c. p. 214. that the Nobilitas Populusque minor was consulted about King Henry the First 's Marriage but he was an Vsurper and a Traitor He urges Jan. c. p. 241. that Tenure in Capite was pleaded off as a burden which would not have been if they could charge the rest in Parliament some of which pleaded that they could be Taxed onely with the Community of the County Though he cites an express Record before 49 H. 3. where besides Tenants in Capite two others are summoned for every County to grant a Tax I answer though the Question is of Fact onely that is Whether more than Tenants in Chief ever at any time before 49 H. 3. came to the Great Councils yet the History of this time and the occasion of this Writ will give any reasonable man satisfaction why they were summoned which is in effect that they were not summon'd â—nd indeed this is a way of shaming a Record which I earnestly reâ—mmend having often try'd it with â—ccess Witness my turning off anoâ—â—er Record with the Authority of â—atth Paris Against Mr. Petyt p. 183. Whereas the New Face-maker takes â—â—tice of the Complaint in a Parliaâ—ent of Henry the Third Jan. c. p. 246. that all were â—ot called according to the Tenor â—agnae Chartae suae which he contends â—wprdâ— be Henry the Third's Charter And â—erefore that they must refer themâ—â—lves to the Clause which provides â—r the Liberties and free Customes â—en of the Villae Henry the Third's Charter was the same with King John's â—â—d with Edward the First 's Against Jan. p. 61. by the â—â—st of which the Villae were certainly â—rovided for But the Clause ad habenâ—â—m Commune Concilium Regni is oneâ— in King John's which is an Argument against me as unintelligible as that â—â—agnae Chartae suae was of the then â—ing's Great Charter Thus I have taught this New Constiâ—â—tion and Upstart Society those weighâ— Truths which had never blest the World but for my painful Search Mr. Speaker That we may not be too much humbled upon these Discoveries we muâ—â— consider that the House of Commoâ— began in the 49th of Henry the Thirâ— whereas the Lords came at the pleasuâ— of that King and even of the Succeâ—â—sors of Ed. 1. and so are a much youngâ—er House in point of Settlement And that no man may wonder aâ— this my freedom I must let them knoâ— that I am not of an English Extractâ—â—on but by the Father's side descendâ—ed from a Noble Poictovin and an Aâ—â—jovin on the Mothers or some otheâ—â— who came in with William the Conquerour Myrmidonum Dolopum ve aut duri Mâ—â—les Vlissis And besides am a Tenant in Capite aâ— Head of a Learned Society Against Mr. Petyt p. 252. and also de Retinentia Regis because of a certaiâ— Honour under him obtained by a special Mandamus Berners discharged from being Knight of the Shire because de Retinentia Regis By reason of which 〈◊〉 could not by Law have been here â—â—less it had been the King's Prerogaâ—e that who he pleased should be of 〈◊〉 House of Commons Against Mr. Petyt p. 249. as well as the â—â—use of Lords And indeed the Law 〈◊〉 well be dispenc'd with One Knight for a County c. named to the Sheriff for the 〈◊〉 of so much Useful Knowledge as have communicated And thus libeâ—i animam meam â—uditum admissi risum teneatis amici FINIS ADDITIONS Answering the OMISSIONS OF OUR Reverend AUTHOR LONDON Printed for Edward Berry 1681. ADDITIONS Answering the OMISSIONS c. SInce the Doctor thinks to flourish with some of his frivolous Omissions like running his Sword â—hrough me after he had slain me in â—magination To shew that I am not â—uite killed I shall venture to try the â—ngth of his new whetted Animadâ—erting Weapon and give him a few â—ome thrusts in exchange for his inâ—ended ones Because I find him a â—entle and easie Foe I shall advise â—im like a Friend Frange miser Calamos vigilataque praelia dele Your miserable Scribling pray give o're With such Polemicks vex the World no more Nor censure every thing as Impertinent Against Jani c. p. 1. Vnintelligible and Obscure that 's above the level of your understanding For proof of his great understanding he taxes three Paragraphs of mine with Obscurity Ib. p. 113. and 114. and that darkness which is in his own mind 1. The first is Jani c. p. 26. that the City of London being charged with a Tallage their Common-Council dispute whether it were Tallagium or
Fee than a twentieth yet in the last recited Record he may meet with the sixtieth part of one Knights Fee in the Mannor of Norton 5. Being all that were Members of the Great Councils in those times of which our dispute is Jani c. p. 32. 35 36. 40. 57. 62 63 64. 66. 185. 219. were Nobles in which the Doctor and I agree and the Nobles came in their own Persons the libere Tenentes part of the Nobility were personally present Indeed Corporations holding in Capite might well come by Representation being they were but as one Noble and one Tenent and would have been an unweildy body to move to Council united as their interest was 6. King John's Resignation was void because 't was without the consent of the Commons Sanz leur assent and to say that this is without the assent of a general Council Colloquium or Parliament in those times when it was done unless he yield the same sort or degree of men to have been Members of the Great Councils formerly as then does not take in the full meaning but is to say nothing being the Commons manifestly assert their right as when they declared that they had ever been a Member of Parliament Against Mr. Petyt p. 133. and as well Assenters as Petitioners And what force does it bring to the Doctors Assertion that the Commons answer in the same form of Speech conceiv'd by the Barons ib. p. 140. Which he thinks worthy of great Letters is that an Argument that the Commons did not think that they ought to have been parties He himself grants that King John resigned before them that came upon a Military Summons Against Jani c. p. 22 23 24. that is as all who ought to come were concluded by them that came before all his Barons wherefore nothing wanted to the Confirmation but the Consent of the Commons And if the Commons were then an essential part of the Great Council they might come in Person unless the change in 49 H. 3. can be shewn to have been any otherwise than in the bringing in a Representation of them Vid. the 12th head 7. By the Charter of H. 1. for the King 's dominica necessaria Jani c. p. 34. or de arduis Regni all the Counties and Hundreds that is the Freeholders the Suitors at those Courts were to be summon'd to the Great Council as it had been in the time of the Confessor when there repaired to the Great Folcmote or General Council held once a year all the Peers Knights and Freemen at least Freeholders of the Kingdom 8. For demonstration that libere tenentes came to the Great Councils in their own Persons and as Members King John before the passing of his Charter writes to the Milites Fideles the last of which takes in all the libere tenentes and tells them that if it might have been done he would have sent Letters to every one of them wherefore these Members whose right is here acknowledged were single individual persons for they could not have been summoned to come by Representation in the case of such particular Writs or Letters unless the Representation were setled before the Summons which is not to be supposed These Arguments all but the last which the Doctor has supplied me with arise out of my former Treatise and I take it that this which the Doctor has occasioned will yield a few more without pressing V. Domesday c. Besides according to the terms first agreed on he received the Confessors Laws about this Folcmote Confutation p. 33. 9. Since William the First was no Conqueror it follows that the Great Folcmote or General Council in the Saxon times where to be sure all Proprietors of Land were to be Members could not have been turn'd into an Assembly of the Kings Tenents upon the old legal Title and without a Conquest there was no other And as there must have been a vast number of the Proprietors whom the Kings immediate Tenents could not oblige so they must have been Members of those Councils which laid any general Charge and that with the same priviledges the Tenents in Capite who came in Person had 10. Though demonstration it self will not satisfie unreasonable men yet not to mention more I shall urge the Authority of the Legier Book of Ely before cited Jani p. 41. the great Antiquity of the hand writing of which is beyond all exception to persuade the Doctor that my Notion is far from being precarious Since that M. S. shews that King Stephen consulted about the State of the Kingdom not only with the Bishops Abbots Monks and inferior Clergy but with the Plebs and they in an infinite number Concilio adunato Cleri populi Episcoporum atque Abbatum Monachorum Clericorum Plebisque infinitae multitudinis c. de statu Regni cum illis tractavit This single instance is sufficient to prove that the Primates Against Jani p. 62. Primores Proceres Magnates and Nobiles were not the Constituent parts of Great Councils in the Reigns of W. the 1st H. 1st King Stephen H. 2. R. 1st according to his restrictive and limited understanding and exposition of these words and phrases but that the CLERUS and POPULUS the general words which often comprehend all the Members signifie as well as Great Men the Common Freeholders as at this day nor need I examine his Book any farther but I hope the Doctor a man of that known integrity as his excellent Book expresses him to be will now make good his promise to be of my opinion when I should evince that Common Freeholders had this great priviledge p. 62. 11. The Lords right of answering for their Tenents being founded in the imaginary feudal right which is made to extend only to Tenents by Knights Service the Socagers being free from that Law could not be charged without their own consent and that given by word of their own mouths if they pleased 12. The Authority cited by Mr. Cambden Jani c. p. 248. and approved of by our Author as well as by me shews that the only change in the Great Council was in leaving out of the special Summons what Earls and Barons the King pleased Against Mr. Petyt p. 226. ib. p. 228. Confutation p. at the right of all other Barons as Singular Persons to share in the Legislature was preserv'd by the alia illa â—revia by which the Representatives 〈◊〉 the Counties came and being all the Members of the Great Councils but Citizens and Burgesses or all such Baâ—ons as aforesaid came before the change in their own Persons and no 〈◊〉 kind of Members were then Creaâ—ed and yet there was a substantial â—â—teration Against Mr. Petyt p. 210. a new Government fram'd â—â—d set up this alteration must consist 〈◊〉 the Commons or Barones Minores â—heir being put to Representatives when before they came Personally 13. I