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
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
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
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
And what of Tenet in alodium de Rege Tenent modo 4 Alodiarii and the like which to me seem of the same kind with the former What of this which methinks destroys all his Whimseys That under the Title of Terra Tainorum Regis such as he will tell us held by Barony we find several men holding in Alodium of the Seizin of their Ancestors To instance only in one Edulf tenet de Rege in Alodium unam mansuram in Mortelhante pater ejus tenuit Spelman's Glos. tit Alode Such as he were Socmen or Tenants in Free Socage And indeed we are fully resolved of this Question in his incomparable Glossary Glos. p. 29. the Alodiarii or Socmen liberi homines thaâ— were Possessors of small Parcels of Landâ— but of what Quality and of what Interesâ— in the Nation Dicat Apollo were the same with Milites and with Thayns The Free-men there ib. p. 30. or Tains Thegnes which are said to possess Mannors Towns or great parcels of Towns verâ— many whereof are found in the Countieâ— bordering upon Wales with this Addition Et liber homo fuit or potuit ire quâ— voluit were the same with Milites and Liber homo attributed to such Possessors was the same with Miles In Confirmation of the Truth hâ— speaks by chance Bollo Presbyter tenâ— Mapledore ipse tenuit cum aliis septeâ— Tainis T. R. E. Bollo a Priest hold Mapledore he held it with seven otheâ— Thayns in the time of King Edward sâ— that an ordinary Mass Priest was a Thayâ—â— So ten Thayns held but one Mannor deâ—em Taini tenent Chemedecome In Cheshire Waldestrich Hundr some Thayns did Villain Services Omnes Taini dicti manerii haâ—uerunt consuetudinem reddere undecim or as denariorum de unaquaque carucatâ terrae faciebant per consuetudinem domos Regis quae ibi pertinebant sicut Villani Nay we find a Thayn In Bochinghamshire Azor ' s man or Feudal Tenant much more was a free Tenant one that could quit his Lord when he pleased Sigelei Hundr Ulchetone hoc M. tenuit Azor filius toti Teignus Regis Ed. alter Teignus homo ejus Tainus But if such Thayns as these were obliged to attend the King in his Wars were numerous and considerable 't is not probable that they were bound by the Acts of Tenants in Capite it may not be impertinent to shew some of the vast number of Knights who held of Subjects I purposely as elsewhere leave out the Church with it's Tenants Under the Earl of Arundel Lib. Rub. in Scaccario in the time of H. 2. Sussex Pettewrtha holds two and twenty Knights Fees and an half Garinges eleven Holnoc twelve Under the Earl de Augo in Rapa Hasting Matthew de Burlin holds ten Knights Fees Robert de Ricarvele ten Richard the Son of William holds fifteen Knights Fees of Richer de Aquilâ In Cornwal Robert the Son of William besides fifty one other Knights Fees which perhaps he held of the King holds twenty of Walter Hai. Richard de Lucy holds of the Feud of Ode Malherb nine Knights Fees Under the Earl of Glocester Jordan Sorus held fifteen Knights Fees Robert de Charâ ten five others held ten and four nine Knights Fees Hugh de Bolbech owes the Earl the Service of twenty Knights Buckinghamshire Here are above 170 Knights Fees not held of the King and yet I doubt not but the Owners were to attend the King in his Wars something agreeable to the Custom within the County of Worcestershire Wirecestrescire in Civitate Wirc c. Quando Rex in hostem pergit siquis edicto ejus vocatus remanserit si ita liber homo est ut habeat Socam suam Sacam cum terrâ 〈◊〉 possit ire quo voluerit de omni terrâ suâ est in misericordiâ Regis cujus cunque verò alterius Domini liber homo si de hoste remanserit dominus ejus pro eo alium duxerit 40. solidos Domino suo qui vocavit emendabit quod si ex toto nullus pro eo abierit ipse quidem domino suo 40. solidos dabit dominus autem ejus totidem solidis regi emendabit When the King goes against the Enemy if any body call'd out by his Writ stay'd at home if he be so free that he has Suit and Service of Court and can go with his Land whether he will he is in the King's Mercy for all his Land but whatever other Lord's Freeman he is if he stay from the Enemy and his Lord hire another for him he shall forfeit 40. Shillings to his Lord who called him out But if no body at all go out for him he shall give his Lord 40. Shillings and his Lord shall forfeit as much to the King This I take it as to the Obligation for Attendance differs not from St. Edward's and William the First 's provisions for Arms Henry the Second's Assize and the Statute of Winchester this only adds a particular Penalty all which together Animad on â—an c. so 17. espâ—ially Domesday-book manifestly contradict his Legendary Tales about King William's governing the Nation as a Conquerour Against Mr. Petyt p. 29. And if the intended History of the Conquest which has taken him up above these ten years as I have upon better Information than he had my not having seen above two of the Original Records which I cite be suitable to this marvellous Essay 't will make a bulky Legend CHAP. III. A Property prov'd by Record to have continued from within the Reign of the Confessor to the 26. H. 3. Besides Pictaviensis and Knyghton on our side ADditional to the Testimony of Domesday book I shall produce a Record as late as the 26. Hen. 3. which shews That a Property was continued in the English from before the Reign of the Norman Prince to that very time and gives Credit to the Authors who tell us that this Prince did not govern as a Conquerour Pro Jacobo Archamgere Rex Baronibus Communia de term Sancti Mich. 35 fin anno 36 incipien H. 3. Rot. primo Penes Remem Domini Thes. mandamus vobis quod occasione arrentacionis Serjantiarum assessae per Robertum Passelewe non distringas Jacobum de Archamgere per 2 Marc. dimid de tenemento quod de nobis tenet per Serjantiam in Archamgere Serjantia tempore Edw. Confess in Comitatu Southampton c. per Cartam beati Regis Edwardi antecessoribus ipsius Jacobi super hoc confectam sed ipsum Jacobum de predictis 2 Marcis dimid quietum esse faciatis in perpetuum quia Cartam prefati beati Edvardi confirmavimus ipsam volumus inviolabiliter observari Breve est in forulo Marescalli mandatum est Vicecomiti Southampton comparat die Jovis die 15. Jan. Anno Domini c. The King to the Barons We command you that by occasion
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
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
the Iniquity of Mâ—nkind And whatsoever Act preceeds from the King's Ministers or whatever Malice be in the Heart of any of his Subjects the Law that Angel with a flaming Sword deâ—ending his Throne will not suffer it to affect him Nay if through Misunderstanding of the Law it should happen that a King go contrary to his own Justice 't is as if no such thing had been done So Plowden's 〈◊〉 iâ— he having an Estate in Taile Alien though from a common Person it would work a Discontinuance yet from him it has no Effect because it would be a wrongful Action Though he has more Power than any Subject yet Subjects may be and are more able to do Mischief And for a full Proof what Confidence the Law has always had in the King 's doing nothing in his own Person but what is highly fitting though an effect should follow upon a rigorous Action of his as if he should kill an innocent man with his own hand there never was any Remedy And this was taken for Law as long since as the Confessor's time Nor is it to be imagined that William the First and his Successors reâ—eded from this Power how little soever â—hey exerted it In that famous Case where the Confessor Tit. of Honour fo 525. impeach'd Earl Godwin of Treason 't is urged by the great men of Godwin's Party that he could not be a Traitor to the King because he was never â—ied to him by Homage Service or Fealty 'T is answered and not replyed â—o on the other side That no Subject ought Bellum contra Regem in appellatione â—uâ de lege vadiare could not lawfully demand the Battail against the King Appellant Sed in toto se ponere in â—isericordia Regis but must wholly yield himself to the King's Mercy In this Case though the Party might prove himself against a Subject to be innocent yet there was no way of Tryal against the King the Appeal being the only Tryalâ— and that required Battail but a maâ— ought rather to lose his Life than strikâ— his King to whom he owes his Protection and Defence from Rapine as the King iâ— the great Executer and Preserver of thâ— Laws Though this Case is of the King 's appealing yet if a Subject should presume tâ— be Appellant against his King for thâ— Death of his nigh Relation the Reason holds and surely 't would be very absurd for an Indictment to be brought in the King's Name who has Jus gladii against himself others could not executâ— the Judgment upon him and I take it no man can be compelled by Law to bâ— felo de se. But what need have I to say any thing on a Subject which every man is bound bâ— his Allegiance not to controvert I shall only observe That the Disputâ— between us can be no more than whâ—â— Right one Subject or body of Subjects has to impose upon another Whether 〈◊〉 â—o the Kings of England have always had a Council in matters of Legislature we have no Difference the only Question is who were of the Council but if as 't is argued on the other side Tenants in Capite were the only Council and if I prove that the House of Lords succeeded to the whole Power of such Tenants and these can have no more than they had he that makes the Tenants the only Council for the Legislature takes away the King 's Negative Voice for that the Lords have in that Jurisdiction which they enjoy upon that old Right of the Tenants in Chief and no King pretends to the Trouble of having a Negative in matters of ordinary Judicature But besides this which I have answered there is a Charge of being an Enemy to the Government by Law establish'd in the Church for which we must consider that the Government in this Respect is made up of the Laws and the Officers in it For the Laws I dispute none of them because I acknowledge the Authority which made them and whether 't is advisable that any of them be altered I leave to the Supream Wisdom of the Nation For the Officers I quarrel not at the Chief the Order of Bishops nor yet at the Ecclesiastical Jurisdiction upon the Reason already given and my Proof that they have this by Law perhaps is Particular truly I conceive it to be a great Mistake that the Statute which took away the High Commission Court took away all Ecclesiastical Jurisdiction for only the part relating to that Court is repealed and then the first of Elizabeth having revived the 28th of Hen. 8. the former Power called Ordinary Power is left entire being provided for by the Statute of H. 8. Which amongst other things Enacts That every Arch-bishop and Bishop of this Realm 28 H. 8. â— 16. and of other the King's Dominions may minister use and exercise all and every thing and things pertaining to the Office or Order of an Arch-bishop and Bishop with all Tokens Insigns and Ceremonies thereunto lawfully belonging It may be said That still I say nothing of the Divine Right of Church Officers and Power but that I may step as far as can reasonably be expected from a Lay-man I acknowledge that there is a Divine Right for Church-Officers and Spiritual Power distinct â—â—om the Civil I cannot now but hope that I have said â—nough to render me fit to be heard upon â—y first Subject in which I have followâ—d the Authority of the great Fortescue â—ho taught the World long since nor is â—his man of Letters too good to learn of â—im that in all the times of these seveâ—al Nations and of their Kings Fortescue p. 38. 6. As translated already this Realm was still ruled with the self-â—ame Customs that it is now govern'd with all Which if Mr. Selden had taken in â—he Genuine Sense as meant of the Government or Constitution which is the Foundation of all particular Laws he â—eed not have been at so much Pains in his Comment hereon If I find any thing more expected from me either in Vindication of my self or â—n more fully drawing my Adversary in â—is proper Colours and admirable Features the first I shall do for the sake of Truth and if I can get as much vacant time from my Studies and Practice in my Profession His Letter to the Earl of Shaftsbury as it seems he has had from â—is I may do the other if it be only for Diversion I am sensible that want of time or of Health to give the finishing Strokes to this rude Draught are of themselves but poor Excuses to a Reader who would doubtless be content to stay till he could see some thing more correct but when my delay would give time for so much growing Mischief as has been sent abroad to spread it self even such an Antidote as I now offer may be accepted till Mr. Petyt has fully prepar'd his Catholicon which will persuade them who have been imposed upon with Noise and Nonsense to