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
our Lord the King and live in the said Kingdom And there they ought to take 〈◊〉 for the Indemnity of the Crown of this Kingdom by Common-Council And there Provision is to be made to repress the Insolence of Malefactors for the good of the Kingdom For it was enacted that there all People and Counties should meet every year once a year to wit in the beginning of the Kalends of May and there to confederate and consolidate themselves Sicut Conjurati fratres with an inviolable Oath and Faith as sworn Brethren to defend the Kingdom against Foreigners and against Enemies together with their Lord the King and to keep his Lands and Honours with all Faithfulness and that they will be faithful to him as to their Lord both within and without the Realm of Britain So ought all the Princes and Earls to do and also to swear before the Bishops of the Kingdom in the Folkmote and also all the Peers of the Kingdom and the Knights and all the Freemen of the whole Kingdom of Britain ought as is aforesaid to swear Fealty to their Lord the King in full Folkmote before the Bishops of the Kingdom 〈…〉 Free-men of the whole 〈◊〉 ought according to their Faculties and â—ossessions and according to their Fee and according to their Tenements to have Arms and to keep them always in Readiness for the Defence of the Kingdom and the Service of their Lords to be performed and fulfilled according to the precept of their Lord the King Here is not that Provision against Exactions which was afterwards necessary but every other point of William's Grand Charter is fully express'd They were to be sworn Brethren for the preservation of the Rights of the Crown for the keeping the Peace and the Laws and Customs of the Kingdom which secured the Interests of private-men to the Liberi homines totius Monarchiae there answers the Folkmote or Vocatio Congregatio populorum gentium omnium or universi qui sub protectione pace Domini Reges degunt These surely were more than Tenants by Knights Service for they are distinguish'd into Principes Comites Proceres Milites liberi homines universi totius regni And 't is not to be argued that they were Tenants by Knights Service because they were to defend the Kingdom with Arms according to their real and personal Estates For I take it none ever heard of a Tenant by Knights Service of a Chatell If our Disputant were as conversant in Antiquity as he pretends or as faithful as he ought to be and have left off his Designs he would have taken notice of the Assize of Arms in Henry the Second's time which confirms my Sense of the former Laws Quicunque habet foedum unius militis habeat loricam cassidem clypeum lanceam omnis miles habeat tot loricas cassides Hoveden clypeos et lanceas quot habuerit foeda Militum in Dominico suo quicunque liber laicus habuerit in Catallo vel in redditu ad valentiam 16 Marcarum habeat loricam et cassidem et clypeum et lanceam quicunque liber laicus habuerit in Catallo ad valentiam 10 Marcarum habeat halbergellum et capelet ferri et lanceam Et omnes Burgenses et tota communia liberorum hominum habeant Wanbais et capelet ferri et lanceam et unusquisque juret quod infra festum Sancti Hillarii haec arma habebit et domino Regi scilicet Henrico filio Matildis Imperatricis fidem portabit et haec Arma in suo servitio tenebit secundum praeceptum suum et ad fidem Domini Regis et Regni sui Whoever has one Knights Fee let him have an Habergeon and Buckler and Lance and let every Knight have so many Habergeons and Bucklers and Lances as he has Knights Fees in his Demeasn or under him Whatever Free Lay-man has in Chatells to the value of fifteen Marks let him have an Habergeon and Buckler and Lance. Whatever Free Lay-man has in Chatells to the value of 10 Marks let him have an Halbert and Capelet of Iron and let all Inhabitants of Towns Cities Burroughs and all the Commonalty of Free-men have a Wanbais and Capelet of Iron and a Lance and let every one swear that within the Feast of St. Hillary he will have these Arms and will bear Faith to their Leige King to wit to Henry the Son of Matildis the Empress and will hold these Arms in his Service according to his Precept and for the Defence of their Lord the King and his Kingdom Good Mr. Dr. Were all those who were to bear Arms in the King's Service his Tenants by Knights Service Agreeable to this one of the Enquirers upon the Statute of Winchester 34 Ed. 1. is If they have Weapons in their Houses according to the Quality of their Lands and Goods for maintenance of the Peace according to the Statute Our Author p. 1. who has an admirable Faculty of rescuing these sacred things from groundless and designing Interpretations would make the solemn Assembly in the Folkmote In Folcmoto semel quotannis sub initio Kalendarum Maii tanquam in annuo Parliamento convenere Regni Principes tam Episcopi quam Magistratus Liberi homines no more than an ordinary County Court and is pleased to put a Slight upon the Authority of the true Sir Henry Spelman who rightly takes it for a Great Council And the new convincing Reason for the former Sense Glos. tit Geniotum is because the Court where Causes were determined before the King's Provost or Officer New Glos. p. 19. is called Folkmote too but pray why is not this the great Folkmote And why may we not from hence take the Platform of the Great Councils in these Times and consequently of such as King William confirmed together with the Laws of the Confessor Was an ordinary County Court in time of War or Danger to act as a Council in providing for the Safety of the Crown and other things for the profit of the Kingdom And were the Bishops of such a spiritual Nature that they could animate the whole Kingdom as the Soul does the Body and be all at the same time in each distinct County of England Jani Angl. facies nova p. 34. This clears beyond Exception the Charter of Henry the First which provides for the Assembly of the Counties and Hundreds If he had look'd but a little farther de Heretoc he would have found a Folkmote that was held twice a year when this was but once and the Sciremote distinct from that The first was the Sheriffs Tourn the other the County Court and that observed by him might have been either the monthly Sciremote or that Folkmote that was held twice a year Ita vero bis Folkmote singulis annis semper celebrari debet per universos Comitatus c. But to convince him more fully of the Absurdity of his Confidence He
Parliament But there is yet a farther Evidence in that as the same Matters were handled in the one and the other sometimes in conjunction with the great Council sometimes separate from it so 't was in the same manner And thus Thomas de Berkley who was a Lord in the 4th of Edw. 3. was Tryed in Parliament by a Common Jurâ— Rot. Parl. 4 Edw. 3. De bono malo ponit se super Patriam upon which a Jury of Knights was returned And this to be sure was according to the Common-Law the way of Tryal in the ordinary Curia which doubtless Glanvil lib. 2. c. 7. was that Assize mentioned by Glanvil Clementiâ Principis de Concilio Procerum populis indultum Where there alwayes was a Jury of twelve at the least Farther Before the Itinerant Judges were setled and before the Courts fixed at Westminster Pleas must needs ordinarily have been coram ipso Rege he being personally present And that the Tenants in Chief 〈…〉 appears by the Constitution of Clarendon which requires it in affirmance of the Common Law Archiepiscopi Episcopi universi personae regni qui de Rege tenent in Capite debent interesse Judiciis Curiae Regis c. Our Adventurer in Antiquities who treats the Author of Jani Anglorum Facies nova with much contempt has this passage p. 26. Notwithstanding he sayes it is agreed on all hands the ordinary Curia was held thrice a year I never heard of any one of his opinion but himself He would make the great Court held at these times he mentions and the great Confluence of Nobility then to the Kings Court to be the King 's ordinary Court for this Dispatch of ordinary Business and Controversies between the King and his Subjects or between man and man I will not deny but often Petitions might be put up and Complaints made to them about private matters such as alwayes have been to the House of Lords and many more of antient times than have been for a Century or two of years And that they did determine and pass Judgment in those Cases But that they were therefore the King 's Ordinary Court I think no body will say but such as never read antient History or Lawyers or at least never intend to understand them Truly he has an excellent Faculty to bring men's Arguments into the shape of his own and then 't is easie even for him to expose them He would have it that according to my Notion the House of Lords is the King 's ordinary Court because of determining in matters of ordinary Justice whereas I make the Notion of Ordinary not to consist in that onely unless it be at ordinary or stated times Nor do I say that the House of Lords is an Ordinary Court but succeeded into the Jurisdiction of the ordinary But he does well to serve my Hypothesis in making the Comparison between these two Courts The one of which as I before observed succeeded to and gives an Idea of the other though it agree not in every particular And as the House of Lords divided from the Commons never could make Laws so neither could the ordinary Curia unless when joyned to the greater though both the House of Lords and the Curia before were the Supreme Courts of Judicature And if the Curia was held thrice a year and confin'd to Matters of ordinary Justice which I think I have proved in shewing that the Legislative Power was vested in more than the King and his Tenants and Officers then I find not that our Champion so much as blunders upon any thing against what I say But to prove more particularly my Assertion which he would have to be my singular Opinion Knighton to instance in an Author of the best eredit tells us of King William the First Knighton f. 2354. In praecipuis Festis profusè convivabat natale Domini apud Gloverniam Pasche apud Wintoniam Pentecosten apud Westmonasterium quando in Anglia foret tenere consuevit On the chief Feasts he used to make great Entertainments when he was in England He used to keep his Christmas at Glocester Easter at Winchester Whitsontide at Westminster Besides at these times when the height of the Feasting was over Causes us'd to be heard Eaâ—merus f. 37. as Eadmerus who might well know informs us Peractis igitur festivioribus diebus diversorum negotiorum Causae in medium duci ex more caeperunt When therefore the most Festival dayes were over they began to treat of divers Causes as was the usual manner To these Feasts there us'd to come onely Tenants and the King 's great Officers which I need not go to prove since our Author would have Tenants onely even exclusive of Officers that were not Tâ—nants to have come to the greatest Councils So that the Court being held thrice a year the Members of it the same which I have shewn and their Business ordinary Tryals here is that Ordinary Court which I have contended for And thus having given some reason for my confidence p. 49. I may expect to be believed This might serve upon this Head but I thank him he generally gives me occasion by reason of his Exceptions to confirm the Rules which I take He fancies he has a great Advantage over me Jan. c. p. 191. by my saying that the Administration of Justice which I mean of the common or ordinary Administration was taken from the ordinary Curia and fix'd at the Courts in Westminster Hall Communia placita non sequantur Curiam nostram And not observing that there was the same Clause in King John's Charter I had plac'd it some three years too late according to him though in truth Glanvil lib. 2. c. 6. there were Justices in Banco sedentes which seems to be meant of a fix'd place in the time of H. 2. And so it must have been since King John's Charter was not introductory of any new Law But I understand not the force of his Argument that if this Council summoned p. 46 47. as is there were the Curia Regis Ordinaria and went off by reason of this Clause it certainly went off before it began Unless he acknowledge that the Curia there provided for be it ordinary or extraordinary was not in Being before And truly I shall not quarrel with him for this But I appeal to any man that will consider without Byass Whether ' t is manifestly prov'd in the Answer ib. that after the granting of this Charter by King John there were many general and great Councils or Colloquiums summon'd by Edict according to the Form which he would have to be there prescribed However it seems by him that there was no such Form for general and great Councils before But how well do's he understand what I say I make but part of the Power of the Curia to have been taken away by Magna Charta or be it by the Law there affirmed but that
is Argument sufficient to prove it for mark the weighty reason H. the Third after this was granted and Edw. 1st taxed their Demeasns through England though not the whole Kingdom by Advice and Consent of their Privy-Councils only until the Stat ' de Tallagio non concedendo That is as Tallage is confest to be a Publick Tax because some of King John's Successors Tax't their Demeans without publick consent Therefore 't was provided in King John's time by way of Prophesy that no publick Tax Aid or Escuage should be raised without publick consent So that what was done after was a moral cause or occasion of what preceded 'T will be said that the thing that the Doctor went to prove was that the Common-Council mentioned in the Charter was the Great and Common-Council of the Kingdom to all intents and purposes Not that the King was restrained from levying a publick Tax without the consent of the Great Council But surely when he goes to give the reason why the Charter must be taken in such a sense we are to expect the proof of that not of something else quitting the thing to be proved If I can understand his dark meaning he was proving that Nullum Scutagium c. intended to restrain the King from levying publick Taxes without publick Consent That is to explain what he very obscurely drives at the restraint was only from Taxing the whole Kingdom not from Taxing his Tenants in Chief And the reason of this Article p. 118. viz. as taken in this sense is that several times after this Charter was granted Hen. 3. and Edw. 1. Taxed their Demeasns through England though not the whole Kingdom by Advice and Consent of their Privy-Councils only until the Statute De tallagio non concedendo was made 34 E. 1. And both Richard the First and King John had Taxed the whole Kingdom without common Assent before the grant of Magna Charta And when he has made good the Premises in this Argument for the meaning of the Article which will be ad graecas Calendas then he may conclude that this Article intended to restrain the King Na. he should have added only Nullum Scutagium c. only from levying of publick Taxes without publick Consent not to provide about Escuage or Tallage which none but his immediate Tenants were liable to And from hence when prov'd we might with some more colour and coherence raise the Consequence that the Common-Council mentioned in King John's Charter was the Great and Common-Council of the Kingdom to all intents and purposes But how that should appear from the mention of Aid and Escuage only will be a Question ' T is by him observ'd of Richard the First Accepit de unaquâque carucatâ terrae totius Angliae sex solidos But what proof is there from the word accepit or the collecting of a Tax ex praecepto Regis that he took it without publick consent Bracton Lib. 1. cap. 16. I am sure Bracton as good an Author as the Historian whom he Vouches tells us Carvage and such this was could never be raised but Consensu communi totius regni But if the King in his Privy-Council might Tax the Kingdom its self till the making King John's Charter and was restrain'd then I wonder our Reverend Author has made the Constitution of the House of Lords that is according to him the whole great Council to have been no earlier than the 49th of H. 3. And unless such a Council as is mentioned in that Charter were Constituted before Nay sometimes he Argues that it was not before p. 56. how comes it to pass that the Clerus and Populus which were of the Kings Council for making Laws and giving Taxes were not till 17. Jo. confin'd to such of them as were of the Privy-Council as well as Communitas populi after Magnates was meant of such people as were Magnates and Milites p. 110. liberè tenentes besides Barons were the Tenents in Capite 112. who by their Acts oblig'd all that held of them by Knights Service 113. that is all the Milites but not the liberè tenentes We are taught that in the 6 of King John Tenents in Capite only Against Jani c. p. 125 126 127. provided that every nine Knights should find a tenth for the defence of the Kingdom and that they who were to find them were all Tenents in Military Service Though the Record shews that besides the Miles vel Serviens Alius terram tenens was Charged with this And he vouchsafes not to take notice of my Argument that every Knight being bound by his tenure to find a man if this had not extended to all that had to the value of a Knights Fee Jani c. p. 225. though not held by Knights Service it would have been an abatement of the Services due and a weakning of the Kingdom Besides admit that Tenents in Capite only laid this Charge and only Tenents by Knights Service were bound by it here is such a Commune Concilium of Tenents as I say King John's Charter Exhibits and no Charge laid by them upon others Whereas he should have prov'd that they did oblige others without their consent But suppose Tenents only were Charged why might not the Charge have been laid by Omnes fideles in my sense as we find Omnes de Regno taxing Knights Fees only The Doctor in his Margin gives us an admirable nota p. 119. that Liberi were Tenants in Military Service or Gentlemen Rustici Socagers possessors or Freeholders in Socages only which is as much as to say that Freeholders were not Freemen unless they held in Military Service and yet a Tenement or Possession neither added to Glos. p. 10. or detracted from the person of any man if free or bond before But surely Mr. Professor has some colourable proof for his remark here For that let others judge Hoveden acquaints us with the manner of collecting a Carvage in the ninth of Richard the First which was that in every County the King appointed one Clergyman and one Knight who with the Sheriff of the County to which they were sent Galls Mâ—lites and lawful Knights chose and sworn to execute this business faithfully Fecerunt venire coram se senescalos Baronum istius comitatûs de qualibet villâ Dominum vel Ballivum villae prepositum cum quatuor legalibus hominibus villae sivae liberis sive rusticis who were to swear how many Plough Lands there were in every Town If here liberi and rustici are not meant for two denominations of the same sort of men that is ordinary Freeholders I will leave him to fight it out with Hoveden since he himself is directly contrary to the old Munâ— Hoveden shews us that these Socagers were legales homines such as chose Juries and serv'd on Juries themselves Against Mr. Petyt p. 36. c. but our new light
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 gives a Cell Lands and Tenements for a Prior and five Monks in Spalding Wulketul Abbot of Croyland Indulphi Hist. fo 902. commences his Suit for this in Curia Regis all the Normans being confederate together justifie and approve of the Depredations Oppressions Slaughters and all other Injuries committed by Yvo Talbois against the Croylanders and as in the body of Behemoth one Feen is joyned to another they refute the Truth And that which added to the Heap of the Calamity of Croyland was the cruel beheading of Erle Walden of Croyland who was very kind to all the Religions and was chiefly the best and most worthy Friend to the Monastery of Croyland and although Arch-bishop Lanfranc his Confessor asserted that he was free from all Faction and Conspiracy and if he died in the Cause that he would be a Martyr yet his most impious Wife thirsting after another Marriage and therefore most wickedly hastening the Death of her Husband Also some Normans gaping after his Counties of Northampton and Huntington According to our Author he had all the Lands of these Counties whereas the King had some especially the Anjovin Erl Yvo Talbois thirsting for his Blood being most greedy for his Lands and Tenements which were very many in all the Counties of England the innocent and harmless man is martyr'd at Winchester the day before the Kalendâ— Here we see they were forc'd to accuse him of Faction and Conspiracy or Rebellion that the Lands might be forfeited to the Crown and they might get them for their good Service Our man of mighty Vndertakings thinks to set aside Edwin of Sharburn's Evidences and exposes the Credulity of his Friend Sir William Dugdale whose Obligation for leading him the way in his Origines Juridiciales he has returned to the purpose because he tells us Sharnburn's name is not to be found in Domesday book or the Conquerour's Survey and the Owners of Sharburn which are there only to be found are William de Warennâ Odo Bishop of Bajeux Bernerius Arbalistarius and William de Pertenac 'T is not material that they are reputed Owners since Sharborn had the King's Mandat p. 25. and possibly might not have the Possession restored till after this Survey 2. Often only the chief Lords of the Fee are named though not all the Proprietors under them 3. Though we find not Edwin of Sharburn we find in the same County Edwin a Proprietor and Lord of a Mannor with a mesne Lord under his Bailiwick and Care though not holding of him Sislanda tenuit Ketel liber homo Edvini commendatus tantum pro Manerio duo Car. Ketel Edwins Free-man held Sisland within his Bailiwick only for a Mannor and two Carvs of Land Now 't is very obvious that there were great Proprietors whose Christian Names only were mentioned in Domesday book They are frequently named without their Additions to be sure not all the Addition by which they were known to instance in Edric cognomento Sylvaticus this Sirname of his is not to be found there as I take it and yet he kept great Possessions which he had of a Title prior to William's Eo tempore Florentius wigorniensis extitit quidam praepotens Minister Edricus cognomento Sylvaticus cujus terram quia se dedere regi dedignabatur Herefordenses Castellani Ricardus Scrob frequenter vastaverunt sed quotiescumque super eum irruerant multos è suis militibus Scutariis perdiderunt At that time there was a certain powerful Officer Edric whose 〈◊〉 was Silvaticus whose Land because he scorn'd to yield to the Conquerour the Castellans of Hereford and Richard Scrob often wasted but as often as they fâ—ll upon him they lost many of their Souldiers and Tenants by Knights Service Hitherto he had kept his Lands and a little after we find the King and him reconciled 〈…〉 Vir strenuissimus Edricus cognomento Silvaticus cujus supra meminimus cum Rege Gulielmo pacificatur And soon after this he accompanies the King to Scotland but if the Dr. finds him by this Addition in Domesday book I will allow him to be a man of a very sagacious Invention p. 26. 4. We find whole Counties left out of Domesday book and therefore admit Edwin were not there 't is not strange that he though a Proprietor should be omitted if it were only through the Influence of Erl Warenn Notwithstanding the Exceptions taken to what he calls the famous Legend and trite Fable of Edwin of Sharnborn he himself confesses that he had the King's Mandat and so this Plea was allowed in the very Instance which he thinks to be on his Side How idle is his note on the Margin of p. 24. against Mr. Petyt Against Mr. Petyt c. p. 19. Can any man forfeit his Lands to a Stranger a Conquerour that could not pretend Title but by Violence and Conquest As if a Conquerour could not make what he pleas'd a Forfeiture and were not the more likely to use Rigor for being a Stranger having no Tyes of Familiarity or Blood besides will not a Conquerour pretending an Hereditary Right make them who oppos'd it forfeit And it shall be taken for just too by them who acknowledge his Title Noâ— is there more to favour his Fancy that King William by giving away the Lands of Great men nay whole Counties or the Government of them thereby defeated the Inheritance or lesser Rights of those who held under them As if for the purpose the King should grant away the Estate of the Lord Stafford which if any were left in him after any Settlement was really forfeited thereby all that had Leases under him or any other Interest were wholly divested which were to make the Attaindure to reach farther than the Blood SECT 6. BUT because our Author is a very sagacious Person for Informations sake I am bold to ask him some Questions occasioned by Domesday-book In Andover Hundred Sorry Rex tenet in dominico Cladford de feudo Rogeri Comitis If this had been the King 's own Feud 't would have been Rex habet de feudo â—uo as we find Robert de Statford had thirteen houses De honore Comitum de feudo suo Wherefore Quere whether all the Lands of the Kingdom were held mediately or immediately of the Crown What thinks he of Est de regno Angliae â—on subjacet alicui Hundredo neque est in consuetudine ullâ So in Surrey Non adâ—acet alicui Manerio or as elsewhere Fuit posita extra Manerium or such an one is commendatus homo to another Glos. tit commendare who if we believe Sir Henry Spelman â—wore no Fealty and held not by any kind of Tenure What of Nunquam geldavit or geldum dedit nec hidata fuit or distributa per Hidas What of potuit ire cum terrâ quo voluit â—otuit se vertere ad alium Dominum Which I should think argued Freedom from the Feudal Law
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
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
Then by common Consent there were elected on behalf of the Clergy the Elect of Canterbury the Bishop of Lincoln Winchester and Worcester On behalf of the Laity Earl Richard the King's Brother Earl Bigod Earl of Leicester Simon Montfort and Earl William Marshal For the Barons Richard Montfitchet and John Baliol and the Abbots of Bury and Ramsey that what they twelve should resolve on should be recited in Common and that no form should be shewn to the King by Authority of the twelve which had not the Common Assent of all Here is so manifest a Distinction between Lords and Commons Members of the Great Council that I dare say no man but this Dr. could have united them into one Order as he does all the Laity But here 't is obvious that when the Lay Lords Earls and Barons were all together and ask'd by the dignify'd Clergy then present whether they would agree with them The Lay Lords answered for themselves that they would do nothing without the Common Vniversity which could not possibly be only the Lords Spiritual and Temporal Let our Dr. answer this to save his Credit they referring to others distinct from both and if the Temporal Lords had concurr'd here had been the Consent of the Common Vniversity of Lords if we may so call it But besides the Consent of all the Lords there was requir'd the Consent of another body of men and these must be the Commons which might well be of Clergy and Laity wherefore here was Clerus and Populus Against Mr. Petyt p. 56. and that such as were inferiour to Barons Tenants in Capite and Noblemen that is to such as now are acknowledged to be the only Nobles But for a full Proof both of our whole Cause and of his excellent Faculty Faculty of answering himself Against Mr. Petyt p. 183. Pat. 8. 9. Joh. n. 3. as long since as King John's Reign there were present at Council Vniversitas Comitum Baronum Militum aliorum fidelium alii fideles following the Milites he yields that therefore they were the King 's ordinary Subjects or other Free Tenants and not Tenants in Capite Thus he stifles his thin Notion with a Record and yet pretends by his Chymical Art to bring it to Life again with the Authority of an Historian who though much to be rely'd on is surely of less Authority than a Record Well but what says the Historian Do's he say it was not so as the Record has it No but expresses himself in general Terms and tells us that there were the Comites Barones Milites and others qui ei servitium militare debebant Perhaps he will smile at my saying 't is in general Terms when he is so particular But with his good Leave he is not clear whether 't was Service because of the Kingdom which all men were to perform in Proportion even to their personal Estates or because of Tenure Indeed he by no means seems to incline to the last it being qui debebant Servitium militare not qui tenebant per Servitium militare Besides all that so held had been Milites but here was another sort of men Yet p. 184. the Dr. very comically tells us Here we find others that ow'd the King Military Service and so were Tenants in Capite besides Earls Barons and Knights The place is plain yes 't is very plain that the Dr. says so and as plain that few men else would have spoke so Pray Good Sir Do you know the meaning of Tenure in Capite by Knights Service Where lyes the difference between holding in Capite of the King by Knights Service and owing the King Military Service as Tenant in Capite If there be no Difference how comes it to pass that one who held in Capite by Knights Service ib p. 39 was no Knight tho Tenants in Military Service in those times were the only Great Freemen Glos. p. 10. as that Service was the only free Service although a Bond-man might hold by free Services and yet be a Bond-man Do not you your self own that all the legalmen or Jurors that held in Military Service were Milites in referring to Glanvil where are some Writs to summon Juries of Knights only whence you would infer that the Legales homines mention'd by other Writs p. 40. were all Knights Were they Bondmen holding in Military Service that were the Fideles at Council But that the Plebs Jan. p. 265. the Ingenuitas Regni or liberi legales homines as Sir H. Spelman tells us the Word Ingenuus has anciently been us'd were Members of the Great Councils notwithstanding the Doctors Sense 2 part of the Glos. Jan. p. 266. and the Assertion put upon Sir Hen. that amongst the several Councils which he had read of he found nothing of the Plebs The Dr. may please to consider of these two following Authorities Quomodo Nigellus Episcopus appellatus est ad Roman Sedit autem Rex Stephanus in sede regni sui siluit terra in conspectu ejus veniens Londonias que caput est Angliae occurrerunt ei pacifice suscipientes illum cum magno honore ibi concilio adunato Cleri populi Episcoporum atque Abbatum Monachorum Clericorum Chronicon Eliense penes Dr. Gale Plebisque infinite multitudinis presidente Romanae sedis legato fratre Domini Regis Henrico Wintoniensi Episcopo Theobaldo quem nuper Archiepiscopum Cancie fecerat de statu Regni cum illis tractavit ut in hostes pacis patriae Sententiam Ecclesiasticae severitatis promulgarent indixit cumque invicem causae ab alterutro agerentur prior quidam vital nomine Conquestus est coram omnibus quod Dominus Eliensis Episcopus eum non judicali ordine de sua Ecclesia expulserit huic per omnia ille legatus favebat suffragari voluit cujus machinatione quidam magnae Auctoritatis Prudentiae viri adversus dominum Nigellum Episcopum parati insurrexerunt illum ante conspectum Domini Papae appellaverunt sinistre objicientes plurima maxime quod seditionem in ipso concitaverat regno bona Ecclesiae suae in milites dissipaverat aliaque ei convicia blasphemantes improporabant Anno 1136. Edicto per Angliam pro mulgato summos ecclesiarum ductores cum primis populi ad Concilium Londomas conscivit illis quoque quasi in unam sentinam confluentibus ecclesiarumque columnis sedendi ordine dispositis vulgo etiam confuse pexmixtim ut solet ubique se ingerente SECT 2. ANY one that reads our Author's book gelt from his indecent Reflections would think him to mean very honestly and that he urg'd nothing but with design of being confuted thus when he produces Mr. Camden's Authority for the new Government and charges me with a designed Omission of Eis one would imagine he thereby intended to put an Argument into my Mouth for the Rights of inferiour Proprietors Statuit