's particular direction since by the general Writ of Summons provided by King Iohn's Charter the Sheriff of each County was to Summon all the Minor Barons and Tenants in Capite which could not be if only the more Discreet were then Summoned nor is there in this Preamble the least Hint or Intimation of any Writs directed to Counties Cities or Burghs for the Choice of Members I desire you in the next place to take notice that Britton who lived about that time supposes this Statute to have been made Per la Purveance de Robert Walerand per Commune Assent des Graunts Seigneurs du Realme By the Procurement or Forecast of Robert Walerand and by common assent of the Great Lords of the Realm without any mention of the Commons I have a great many more such Statutes to instance in which are said by M. Paris to have been made in several Parliaments of this King by the Community or Common Vniversity or Baronage of the whole Kingdom but I pass them by because we have sufficiently debated most of them already F. If only some of your Great Lords and Tenants in Capite could thus meet and make Laws to bind all the rest and they so tamely put up this strange Infringement of their Priviledges as you suppose it seems their Power was much abated since the 37 th year of this King when as I said Mat. Paris tells us that the Barons would do nothing without the rest of their Peers whom it seems the King had then omitted to Summon and therefore I must needs tell you that I am not of your Doctors opinion nor yet of Cambden's nameless Author that this King after his victory over Montfort and his Adherents could by his Prerogative call or omit what Peers he pleased since it is contrary to the Declaration of all the Bishops Abbots and Priors in Full Parliament 2 Rich. 2. wherein they claimed That holding per Baronium it did belong to them de Iure consuetudine Râ—gni Angliae that is by Rights of Prescription to be present in all Parliaments as Peers of the Realm and to treat consult and ordain concerning the Affairs of the Kingdom and if the Spiritual Lords claimed this Priviledge sure the Temporal Barons might with the like right have made the like claim and I am sure it is highly derogatory to the Rights of the Peerage of England to maintain that the King either hath or ever had the power of calling and leaving out what Lords he pleased and so to make pack'd Parliaments to serve a turn when ever he pleases But to come to the main strength of your Argument that because the more Discreet men of the Kingdom of the Greater as well of the lessâ—r are only mentioned in this Statute that therefore there were only called to it such Lords and Tenants in Capite as the King pleased to Summon and that all the rest were left out which is a very idle Supposition for at this rate may as well say that there were no Temporal Barons there at all and that by the Greater discreet mâ—n are to be understood some of the Bishops and Judges who tho no Peers yet were then the most Learned in the Laws and Customs of the Kingdom of any persons at that time and consequently the most wise and discreet to draw up Laws and by the lesser sort of discreet men shall be understood such Great Clerks and Lawyers tho not Tenants in Capite as the King pleased to chuse as being likewise most able to advise him But if you tell me that this Interpretation is forced I may as well say the same of yours and that with greater reason Yet I shall prove that this Parliament was Summoned in no other manner and consisted of no other persons than those that used to appear in all other preceding Great Councils or Parliaments In the first place therefore I must put you in mind of what I have already said that there is no conclusion to be drawn from the bare penning of the different Forms of ancient Statutes who were Summoned to the making of them nor by what power they were Enacted some of them it is true being drawn in the form of the Kings Charters or Writs without any mention of the Assent either of the Lords or Commons and others are said to be Enacted by the whole Realm without any mention of the King at all and I have given you a List of divers old Statutes from the Reign of King Henry III. to the time of King Edward III. in which there is no mention at all made either of the King or any other of the three Estates and yet no Man I think but will grant that these Statutes were all made and agreed to by them according to the usual Forms tho it be not particulaly expressed and therefore to give a better account of this Law it is fit we consider that these words convocatis Discretioribus Regni are no more restrictive to some particular Persons then if it had been in the Superlative Degree and instead of Discretioribus it had bin Discretissimis or Sapientissimis Regni which no Man would interpret to mean only a few of those whom the King should judge the wisest and most discret Men of the whole Kingdom and therefore we must not mind the Grammatical but Legal sence of these words and then it amounts to no more than this that by the Greater discreet Men were meant the Lords Spiritual and Temporal as under the lesser Discreet Men were included the Commons But that these Minores Descreti cannot be understood of the Tenants in Capite only appears by the conclusion of the Preface to this Statute of Marle-bridge in these words Provisiones Ordinationes Statuta subscripta â—b omnibus Regni ipsius incalis tam majoribus quam Minoribus firmiter inviolabiliter temporibus perpetuis Staâ—neriâ— observari so that if by the Majores Iâ—colae who were to observe these Statutes the Lords Spiritual and Temporal are meant then by the Minores Incolae Regni must be understood by the same reason the whole Commons of England and so likewise for Parity of reason by the Minores Discreti mentioned before in the Preface must be also meant the Representatives of the Commons in Parliament And that this alone can be the genuine sense of these Words may appear by comparing this Statute with another made at Gloucester the 6th of Edward I. where in the Preface it is recited in these words purvenant mâ—sm le Roy pur Amendement de son Royalme pur pluis plenier exhibicion de droit sicome le profit d'office demande appelles les pluis Discretes de son Royalme auxibien des Greindres come des meindres establie est acordan'ment ordeine So that if the Commons were there called to this Parliament and if by the Greindres Discretes were understood the Lords then by the like reason under Meindres Discretes must be meant the
atque supâ— mâ—nerâ— Ministri notantur And also in his Perambulation of Kent saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 was usually taken for the very same that we call now from the Latin word Gentilis a Gentleman that is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 A man well born or of good Stock and Family So that I think nothing can be more evident than that according to the Opinion of our best Criticks in the Saxon Tongue the word Thane doth not always signify a great Lord or Baron of Parliament as he is now called in distinction to an Inferior Nobleman or Gentleman And that there were also Burgh Thanes Thanes of Cities and Boroughs will evidently appear from a Writ or Charter of K. Edward the Confessor which is still to be found in Sir Iohn Cotton's Library in these words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Willem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 alle mine 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which Charter with divers other of like nature confirming the Privileges of that Monastery were collected by a Monk of Westminster called Sulcardus who lived not long after the Conquest In the next place as for the word Magnates though I grant it there often signifies Great men or Lords Yet not only such as were Lords or Noblemen by Birth but as I shall shew you by several Instances as well before as after the Norman Entrance that it likewise also comprehended the Gentry or Inferior Nobility and such as were eminent and considerable either in the Countries or Cities for Interest Office or Estate As for the word Optimates I know it signifies the better or best sort of men yet not always great Noblemen or Lords For in Monastic Anglic. Tom. 3. we read of one Goda who under Edw. the Confessor subscribed himself Optimatem Ministrum Regalem i. e. Thane And lest you should apprehend that Optimas should always signifie the King's Thane or Tenent in Capite du Fresne in his Glossary defines Optimates to be Vassalli Barones qui ab ullo Domino ratione Hominu nede pendet but I shall speak more of this word Optimates when I come to speak of the times not long after VVilliam the First In the next place for the word Proceres it doth not only signifie Men Noble by Birth but Isidore a Spanish Author in the Gothic-times in his Origines Lib. 9. Cap. 4. says thus Proceres sunt Principes Civium and that this word often signified in the ancient English Saxon the Chief Magistrates of Cities or Burghs appears by Alfrick's ancient Glossary where these words Proceres Primates vel Primores he thus renders 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 buph papa And Du Fresne in his Glossary says also Proceres appâ—â—labantur qui in Civitatibus pracipuos Magistratus gerebant As for the word Principes any man that understands any thing of the Latin Tongue knows that it doth not always signifie Princes or Men Noble by Birth but any Chief or Principal Man remarkable by Place Office or Dignity and therefore we often read in Livy and other Latin Authors of Principes Civitatis and in this sense I suppose every Member of Parliament may be reckoned inter Principes among the most Considerable or Chief Men of the Kingdom So that when our ancient English Historians as well before as immediately after the Norman Conquest do often after the Arch-Bishops Bishops c. add caeteri totiâ—â— Regni Proceres Optimates or Principes as Members of the great Councils of those times Yet that these Writers did not then mean what you would understand by these words only Princes Earls or Great Lords Mr. Selden in his Titles of Honour teaches us when speaking of this word Principes as the most comprehensive of any says that though Princeps in the Singular were proper to every Earl or Alderman yet in the Plural Principes is more often applied comprehensively to others also of less though of special Eminency such as were Viri Primarii or Thanes And for this he refers us to the Charter of King Ethelwulf as it is recited by W. of Malmsbury Lib. 2 Cap. 2. And Ingulph wherein that King granted Tithes and divers other Priviledges to the Church Abby of Malmsbury which is said to be done Consilio Episcoporum Principum snorum as also of Hen. Hunt who relating the Election of Harold the Son of King Cnute expresses it thus Fuit magnum placitum apud Oxonford ubi Leofricus Consul omnes Principes eligerunt Heraldum Lastly As for the word Wites or Sapientes there can be nothing in that word which can limit it only to Men Noble by Birth since it signifies no more than the King 's Great Council of Wise men or Senators and might also well refer to the Chief Magistrates or Representatives of great Cities and Boroughs For Du Fresne in his Glossary tells us That among the Lâ—mbards Sapientes in Italia appellabant Civitatum Cives Primarii quorum Consilio Respublicae gerebantur Hieron Rubeus Lib. Hist. Raven Anno 1297. Sed longe antea illud nomen abtâ—â—uit in aliis Longobardâ—rum Civitatibus ut colligere liceret ex Ottone Acerbo Morena in Hist. Rerum Lâ—ndevetium c. Nor is this Authority inconsiderable since the Lombards were derived from the Goths from whom also the English Saxons had their Original and had the like fundamental Constitution and were governed by much the same Laws But that the Title of Wites or Sapientes was often attributed to the Commons of England I shall explain to you when I come to treat of the Antiquity of the House of Commons after the Normans Entrance where I shall shew you that divers Petitions were directed a tres Sages les Communes And sure whosoever is chosen by a County City or Borough as their Representative and is by them thought wise enough to be trusted with their Purses and to make Laws for them may very well I think be called in Old English a VVite or in our modern Dialect a Disercet or VVise man But let this word VVites signifie what it will yet it could never mean here great Lawyers or Iudges as your Dr. will have it since I very much doubt whether Law was then a Trade or Profession or not And that the Iudges in those days had not any more Voice in making Laws than they have now or any more to do in it than in the bare drawing of them up I am very well satisfied since if they had any such Power in those days I do not believe our Kings would ever have let them have lost it since it was so advantagious to their Prerogatives that they should keep it I could give you divers other Authorities though of later date to prove that the Commons were often included under the word Sapientes in our ancient Statutes and Records but I refer those for the times after the Conquest but I beg your pardon for being so
Soccage must needs have been so numerous that what Room nay what Field or Place was able to contain so great a Multitude Or how could any business have been transacted therein without the greatest confusion imaginable F. So then you your self must also grant that when all your Greater and Less Barons or Tenents in capite appeared in Person Parliaments were much more numerous than they are now since according to the Dr.'s Catalogue out of Dooms-Day-Book in his Appendix to the English History Vol. 1. of all the Tenants in capite or Serjeanty that held all the Lands in every County of King William they did besides the Bishops Abbots Earls and Barons altogether amount to about 700. and these in the 49th of Hen. III. by forfeiture and new Conveyances from the Crown or by those other ways you have now mentioned might be multiplied into twice as many more and those also of sufficient Estates to maintain the Port of a Member of Parliament or Knight Since 15 Pounds a year was in the Reign of King Iohn and Henry III. reckoned as a Knight's Fee and he that had it was liable to be Knighted And if so I pray according to your own Hypothesis how could so great an Assembly be managed as of about 3000 or 4000 Persons without strange confusion and disorder but upon our Principles there will follow no more Absurdities or Inconveniencies than in yours for either these Barons of Counties Burgesses and Inhabitants of Towns and Cities were always represented by Knights and Citizens as they are now or else these Barons of Counties appearing for themselves were Lords of Mannors or Freeholders of good Estates who were not so numerous or inconsiderable as you imagine the Freehold Lands in England being in those days but in a few hands in comparison to what they are now And for this Opinion I have Sir H. Spelman of my side who in the place already quoted under Barones Câ—â—itatus expresly tells us Hoc nomine contineri videtur antiquis paginis omnis 〈◊〉 â—eodalium specier in uno quovis Comitara degentium Proceres nempè 〈◊〉 Domini nèc non liberè quique Tenentes hoc est fundorum proprietarii Anglicè Freeholders ut Superiù◠dictum est Normidum autem est hoc liberè Tenentes nec tam â—iles 〈◊〉 fuisse nèc tam Vulgares ut hodiè deprehonduntur nam villas Dominia in 〈◊〉 Hareditates non dum distrahebant Nobiles sed ut vidimus in Hibernia penes se retinentes agros per precarios excolebant adscriptitios So that you see Sir H. Spelman then believed that the Mannors and Great Freehold in England were not then parcell'd out into so many small Shares as you imagine and that such Inferior Barons whether they held in caâ—â—â—e or not were also called Proceres see the Laws of Henry I. Chap. 25. the Title whereof is de Privilegits Procerum Angliae The law runs thus Si exurgat placitum inter homines allcusus Baronum foenam habentium tractâ—tur placitum in Curia Domini sui Now that this Socha was no more than Soc. in old Saxon see Spel. Gloss. Tit. Soc. i. e. secta de hominibus in curia Domini secundum consuetudinem so likewise in Titulo Socha vel dicitur Soc. a Saxon socâ— i. e libertas Franchesia vide manerium qd dicitur etiam Soca dictum est From all which we may observe that these Lords of Mannors here called Proceres Barones had Court Barons which took their Name from their Lords tho Feudatory Tenents or Vavaâ—ours But granting that about the end of King Iohn or beginning of the Reign of Hen. III. Supposing that these Lords of Mannors and Great Freeholders whether Tenents In capite or others might amount in all to 5 on 6000 persons I do not see why such an Assembly might not be as orderly and well managed as one of 1000. or 4000. supposing your Greater Barons and Less Tenants in capite to have than made about that number especially if we consider that most business or Acts of any consequence and for which Parliaments were called might be prepared and drawn up by the King and his Council before they met So that take it which way you will fewer Inconveniences and Improbabilities attend my Hypothesis than yours M. That the Earls and Greater Barons both Spiritual and Temporal together with the Tenants in capite then made the Body of the Baronage of England I have very good Authority on my side but that any Feudatory Barons or Tenants of a Lesser Degree ever had any Places or Votes in those Assemblies I think you can give me no sufficient Authority for it 'T is true Mr. P. in his Treatise of the Rights of the Commons asserted gives us two Modern Quotations the one out of Mr. Câ—â—den's Britannia the other out of Mr. Selden to prove it As for the former it is in the Introduction to the Britannia first published in Quarto The Words are these Verum Baro ex illis non imbus videatur qua tempus paulatim moliara molliora reddidit nam longo post tempore non Milites sed qui liberi erant Domini Thani Saxombus dicebantur Barones vocari caperunt nec dum magni honoris erat paulo autem postea meaning after the Normans entrance eò honoris pervenit ut nomine Baronagii Angliae omnes qâ—â—dammodo Regni ordines continerentur But he doth not tell us that this Learned Author in his last Edition of this Work in Folio being sensible of his mistake hath added the Word Superiores before Ordines whereby it is plain he now restrains it only to the Earls and Barons as they are now understood Mr. P's other Quotation is out of Mr. Selden's Notes upon Raâ—â—â—rus where commenting on the Word Barones he saith Vocabulum nempe alio notione usurpari quam vulgo neque eos duntaxat ut hodie significare quibus peculiaris ordinum Comitiis locus est but then conceals this that follows which makes directly against him Sed universos qui Regiae munificentiae ad formulam Iuris nostre Clientelaris quod nullius Villae Regiae glebam sed ipsum tantum modo Regem spectat Tenure en Chief Phrasi forensi dicimus sive Tenura in capite lati fundiâ— pessidebant whereby you may see that he expresly restrains this Word Barones to Tenents in capite only tho your Author takes no notice of it Nor indeed in his Title of Honour doth Mr. Selden give us any other Description of a Baron I mean such who had a Vote in Parliament but such in the Sense that is taken in Henry I. his Charter as it is recited in Matt. Paris Siquis Baronum meorum Comitum vel aliorm qui de me tenent mortuus fuerit i. e. One who was either one of the Earls or Greater Barons or otherwise held in capite F. Mr. P. is not at all to be blamed as you make him
in these two Quotations since in that out of Camden you cannot deny but he hath truly quoted that Author as it was in his First Edition and if he afterwares altered it it may very well be questioned whether he did not add the Word Superiores rather out of fear of displeasing the Greater Nobility whom that Quotation had before Shockt than out of any sense of his being in the Wrong as it appears by the Words immediately following when he tells us out of a nameless Manuscript Author That Henry III. out of so great a multitude of Barons which was seditious and turbulent called the best and chiefest of them only by Writ to Parliament By which it plainly appears that he supposed all those Less Barons or Tenants in capite tho no Lords as now understood who were thus excluded to have been only Nominal and not Real Barons and if so Commoners or else he must extend the Peerage of England to at least Three or Four Thousand Persons For so many Tenents in capite might very well be at that time The same I may likewise say as to the Quotation out of Mr. Selden for by the Words quibus peculiaris in ordinum Comitiis locus est 't is plain he supposed that all the rest of those Tenents in capite were but meer Commoners yet he no where affirms that none but these appeared in Parliament for all the Commons of England for he very well knew the unreasonableness of that Supposition Since besides these Barons or Tenants in capite Bracton in his first Book tells us of divers other Orders of Men of Great Dignity and Power in this Kingdom about the time when you suppose this marvellous Alteration to have happened His Words are these Et sub iis viz. Regibus Duces Comites Barones Magnates sive vavassores Milites etiam Liberi Villani deversa Potestates sub Rege constitutae and a little farther sunt alti Potentes sub Rege qui dicuntur Barones hoc est Robur belli sunt alii qui dicuntur Vavassores viri 〈◊〉 Dignitatis From which Words I desire you to observe that he here makes the Magnates and the Vavassores or Feudatory Tenants to be all one and also ranks them before the Milites Now whether these Vavassores and Milites who did not all hold of the King in capite were men of so great Dignity and Power as these whom he here reckons immediately after the Earls and Great Barons should have no Votes in Parliament neither by themselves nor their Representatives is altogether improbable And agreeable to this of Bracton Du Fresne in his Lexicon Tit. Vavasor tells us that Vavassorum duo erant ordines sub majorum apellatione implectuntur qui Barones apellantur sub â—norum vero quos vulgò Vavassores dicunt ut leges Henrici I. Reg. Ang. Thaines minores respectu Thainorum majorum qui Baronibus aequiparantur But that these Lesser Thanes or Vavassors were also stiled Barones Sir H. Spelman tells us expresly in his Glossary Tit. Baro etiam Barones Comitum Procer umque hoc est Barones subalterni Baronum Barones sâ—pissime leguntur and of this he gives us many Examples and particularly of the Chief Tenants of the Abby of Ramsey above mentioned So likewise the same Author a Leaf or two farther speaking of the Barones of London mentioned in the Charter of King Henry I. understands them pro civibus praestantioribus qui socnas suas consuetudines i. e. Curias habuerunt Privilegia eorum instar qui in Comitatu Barones Comitatus dicuntur c. Nor did this Title of Barones extend to London alone but he also immediately tells us in the same place Sic Barones de Ebaraco de Cestria de Warwico de Soe Feversham plurium Villaram Regiis Privilegiis insignium cum in Anglia tum in Gallia c. and that Barons of Counties were no more than Lords of Mannors I have just now proved for Socna means no more than a Court Baron or Court of a Mannor So that here arises a plain distinction between the Barones Regis the King 's Great Barons or Tenants in capite and these Lesser Barons we now are here speaking of called Medmesse Thegnes and Burgh Thegnes by the Saxons till they 〈◊〉 on the Word Parliamentum to signifie the Common Council of the Kingdom who tho no Peers yet were Barones Regni Barons or Noblemen of the Kingdom according to the general acceptation of the Word Nobiles in that Age and is such made up the Body of the Baronage called by Matt. Paris and other Authors Baronagium or Communitas Baronagit totius Angliae M. I see you do all you can from the equivocal use of the Word Barones to croud in new and unknown men into the Great Council of the Kingdom viz. your Barons of Counties Cities and Towns whom since you dare not affirm there were then any Knights of Shires you suppose to have served instead of them and these you would have to be not Barones Regis but Regni or Terrae forsooth i. e. of the Land or Kingdom whereas we never had any True Barones held by mean Tenures here in England this if you deny you must deny all History and all our Ancient Laws and Law-Books too and if you grant it you must confess that every Baron was a Tenant in capite and by your own Concession he must then be the King's Baron or Baro Regis I grant indeed there were Nominal or Titular Barons such as you mention many in those Times such as were Tenants to Great Lords Bishops or Abbots of whom we find frequent mention in our Ancient Histories Records and Charters But these are not the men who had ever any Place in our Great Councils and I desire you would prove to me that ever they appeared there before the Times I assign and I would also have you inform your self of the Gentlemen of whom you borrow this Notion if they can prove that there were any such kind of Tenure as Tenura de Terra or de Regno or whether there was ever any man that held an Estate de Regno Whether forfeitures or Escheats were to the Kingdom And whether Fealty was sworn or Homage done to the Kingdom Or whether an Earl was invested or Girt with the Sword of the County by the Kingdom Or whether the ancient Ceremonies used at the Creations of Earls and Barons were done by the Kingdom Thus all the Barons of England held of the King and thus all these things were performed and done to our Ancient Kings and by them which are most manifest Notes of the King 's immediate Jurisdiction over the Barons and that they were his Tenants in capite and by consequence his Barons only which you cannot deny and of which Tenants in capite the Earls and Greater Barons always created by Investiture of Robes or other Ceremonies were summoned by particular Write
have already proved that the whole Parliament as well the Lords Spiritual and Temporal as Commons were both before and after this time comprehended under these words Nobilitas Angliae and if you yet doubt of it I can give you a plain Authority out of VValsingham for it is in his Life of Edw. II. Anno 1327. where relating the manner of that King's Deposition he tells us That when the Queen and Prince came to London there then met Tota Regni Nobilitas to depose the King and chuse his Son in his stead and then there was sent to the King being Prisoner in Kenelworth Castle on behalf of the whole Kingdom two Bishops two Earls two Abbots and of every County three Knights and also from London and other Cities and Great Towns especially the Cinque Ports a certain number of persons who informed him of the Election of his Son and that he should renounce the Crown and Royal Dignity c. This Proof is so plain it needs no Comment As for the rest of your Argument the strength of it chiefly consists in this that the Tax there mentioned is said to be granted à Militibus or Tenants in capite as you would have it of three Marks upon every Knight's Fee But in the first place I desire you to take notice that this Scutage is not Scutage Service but a general Land Tax or Manner of taxing according to Knights Fees and which was continued long after Hen. III. Reign as it appears by this Passage in Sir Henry Spelman's Glossary Tit. Scutagium Edwardus primus habuit 40 Soli de quolibet 〈◊〉 Anno Regni 13 Dom. 1285. pro expeditione contra VVallos And it was also granted by the Lords and Commons after the 18th of Edw. I. when you and the Dr. supposes the Commons to have then came to Parliament and if so I desire to know why a Militibus here mentioned by this Author must only signifie Tenants in capite by Knights Service and not the Knights of Shires since it is not here said a Militibus qui de Rege tenuerunt in capite And therefore it is a forced Interpretation of the Dr.'s and without any Authority to limit these words Militibus libere Tenentibus omnibus de Regno nostro which you omit with an c. as also the omnibus Hominibus Liberis Regni nostri only to the Arch-Bishops Bishops and other Prelates of England and to the Earls Barons Knights and Free Tenants or Tenants in Military or Knight's Service because they were only such as paid Scutage VVhereas you have already acknowledged that Magna Charta was granted to all the people of England who had all a benefit by it and who paid towards the aid there granted as well as the Tenants in capite But if Knights Fees alone were Taxed and that by the Tenants in capite only I desire to know by what Right all Tenants in Petit Serjeanty and by Burgoge oâ— Sâ—occage Tenure who made a greater Body of men in this Kingdom in those Times could pay this Scutage since they held not by Knights Service but by certain Rents or other Services and so not appearing in Person could have no Representatives in this or any other Parliament of those Times But if you will tell me they might pay according to the value that Knights Fees were then reckoned at viz. for every 20 l. a years Estate I desire to know how this could be called Scutage or how the Tenants in capite or other Lords from whom they held those Lands could give away their Money for them And in the next place I desire also to know how all the Cities and Burroughs in England could be charged with this Tax a great many of them is you your self grant holding of the King in capite or else of Bishops Abbots or other Mesâ—e Lords by Soccage or Bargage Tenure So that this Tax if granted only by the Tenants in capite by Knights Service could reach them and no other persons but if by this Word a Militibus may be understood Knights of Shires then the Tax was general as well upon Soccage Tenants as those by Knights Service But for the other Words you insist upon viz. the Liberi Tenentes which you translate Tenants by Military Service if that had been the meaning of these words then they had been altogether in vain since you have already told me that the â—â—lites were so called non a Militari Cingulo sed a Feodo and if it were no Name of Dignity then certainly the Word Milites would have served to comprehend all your Liberi Tenentes or Tenants in capite without any other addition But that these Words Laberi Tenentes do not here signifie Tenants by Military Service pray see Sir Henry Spelman's Glossary Tit. Liber Homo liber Tenens where he there gives us a more general Signification of thesewords thus Ad Nobilesolim spectabant isti 〈◊〉 à majoribus ortos omnino Liberis and then ends thus vide Ingenuus Legalis 〈◊〉 Francus Tenens Liberè alias Liber Tenent quo etiam sensu occurrit interdum Homo 〈◊〉 which upon every one of these Titles he makes to signifie all one â—â—d the same thing viz. an ordinary Freeholder And therefore it is a very forced Interpretation of yours to limit these Words Communitas Populi only to the Community or Body of the Earls Barons and Tenants in capite Tho I confess you are very kind in one main Point in únderstanding the Communitas Populi to mean the Community of the Lesser Tenants in capite that were no Barons and then do what you can these Words must here signifie Meer Commoners or Commons unless you can shew us a Third Sort of Men who tho neither Lords nor Commons yet had a place in Parliament So that these Gentlemen notwithstanding their Tenure were no more Noble than their Feudatory Tenants or Vavafors themselves my than the Knights of Shires are at this day And then granting as I doubt not but I shall be able to prove that the Cities and Boroughs had then also their Representatives there I pray tell me whether or no there were not Commons in Parliament before 49 Hen. III. or not which is contrary to your Dr.'s Assertion in divers places of his Answerâ— to Mr. P. And that the Word Populus must here signifie the Commons and not the whole Body of the Laity appears plainly by this place you have quoted since it is restrained by your self to mean not the whole Community of the Kingdom but only the Community of Lesser Tenants in capite who were not Lords But that Matt. Paris doth also in another place take the Word Populus for the Commoners and not for the whole Body of the Laity pray again remember what he says in Anno 1225. where relating the manner how Magna Charta came to be confirmed in 9th Hen. III. he tells us Rex Henricus ad Natale tenuit Curiam suam apud VVestm
Goods and the Citizens Burgesses and Tenaâ—ts of the King's Demeasâ—s which weâ—e likewise none of the Community of the Kingdom gave a Twentieth part for if they had been of the Community they had â—aid a Thirtieth part as well as the rest and therefore 〈◊〉 most certain that even at this time viz. the 34th of Edw. I. they weâ—e not taken to be part of the Community of the Kingdom and that the Tenant in Câ—pite Serjeanty or at least the Military Men and Tenants in Military Seâ—vice were only such F. As to this last Record you have cited I need give you no other answer to it than a like Writ of the 35 th of this King which the â—â—ctor himself hath also given us in his â—lâ—ssaâ—y which I shall here read you at large together with his Learned Comment upon it it is for the Collecting of this twentieth and thirtieth part granted in the thirty fourth you have now mentioned tâ—e Writ runs this Militibus libeâ—is hominibus â—oti Communitati Comitatus Middlesex tum inâ—ra Libertaâ—â—s quam â—xtra sâ—lutem cum Archiâ—piâ—coâ—i Episâ—â—pi Abbates Priores Comites Barâ—nes Milites Labâ—ri Homines ac Communitâ—tâ—s Coâ—itatuum Regni nostri Tricesimâ—m â—m â—um Boâ—orum suorum tâ—mporâ—lium mâ—bilium Civâ—sque Burgenâ—â—s ac Communitaâ—â—s omnium Civitâ—â—â—m Burgorum ejusdâ—m Regâ—i 〈◊〉 Tenentes de Dâ—minion nosâ—â—is Vicesimâ—m Bonorum suorum mobilium curiâ—liter concessâ—runt gratantur c. And least we should happen to mistake the meaning of these words thâ— Doctor himself has furnish'd us with this Learned Comment upon them as follows in the same place It is said in this Record that the Archbishops Bishops Earls Barons Abbots Priors Knâ—ghts and Freemen and Communities of Counties gave a Thirtieth part of their Goods as if they had been all Members and sat in this Parliament And so it is said of the Cities and Burghs that the Citizens Burgesses and the Communities of the Cities and Burghs gave a Twentieth part of their Moveables as if they had been all there But these words signifie no more than that the Knights and Freemen gave by their Representatives and that the Communities of Counties and the Citizens and Burgesses and Communities of Cities and Burghs gave by their Representatives as is most clear from the Writ of Expences for the Knights of Lincoln-shire and so consequently for the rest Now I desire you would tell me whether there can be a plainer Record against the Doctors opinion than this for in the first place who were these Knights Freemen and Commons who granted this 26 th and 30 th part of their Moveables in the 34 th year of this King but the Knights Citizens and Burgesses the Lawful Representatives of the whole Kingdom in General as well those who held in Capite or else by inferior Military Service as those that held by any other Tenure or who were these Representatives but men chosen out of all soâ—ts aâ— well those that held by Knights Service as those that did not unless you can prove as you have not done hitherto that all the Cities and Buroughs in England held of the King in Capite and that none but Tenants in Capite or Military Service at least were chosen either for Counties or Cities and though I find your Doctor has an utter aversion to the word Commons and theâ—efore will needs translate the word Communitates by Communities and not Commons yet if you were to render those words the Commons of the Counâ—ies Cities and Buroughs into our Law-Latin I desire to know what other words you could make use of but these in this Record viz. Communitaâ—es 〈◊〉 Civiâ—atum Burgâ—rum So that to conclude if in the 28 34 and 35 th of Edward the First aâ—l the Commons gave by the same Represâ—ntatâ—ves as they do now I can see no reason why they might not do so too thirty or forty years before that time and pray take notice also that here the Tenants in Ancient Demeâ—n gave likewise by themselves and could not be charged by the Knights of Shires And therefore as Mr. Lâ—mbard in his Archeâ—on very well observes this Prescription of not being chargeable with the rest of the County must be very ancient siâ—ce theâ—e was no Land at that time reckon'd as Ancient Demesne which had not belonged to the â—rown before the making of Dooms-day Book M. I must confess what you have now said concerning the constant use of the words Communitâ—s and 〈◊〉 Câ—mmune coming after Comiâ—es and Barones to express the Commons in Parliament in our Statutes and Records would weâ—gh much with me had I not good reason to believe there were no such thing as Commons in Parliament in the sense now taken before the 49 th of Henry the Third and from which time I suppose it was discontinued â—till the 18 th of Edward the First for which I can give you very good proofs when it comes to my turn but in the mean time pray shew me by any Record or Statute that there were any Knights Citizens and Burgesses Summoned to Parliament till the times I allow for in the first place you cannot shew me any mention of Commons in the Plural Number in any old Statute before Edward the First 's time and as for the words Communitas and le Commune which I grant were ofâ—en used to express the Commons after that time your self own they are equivocal and therefore when put after the Earls and Barons in the Instances you have given may signifie the Community of the smaller Tenants in Capite which were the only Representatives of the Commons that appeared in Parliament in those days and I am the more inclineâ— to be of this opinion because I have searched the old Statutes very exactly and cannot find any mention of the word Commons in the Plural much less of Knights Citizens or Burgesses till the Statute of 34 th of Edward the First 〈◊〉 Tallagio nâ—n concedâ—â—do made in the 34 th of Edward the First wherein I grant they are expressly mentioned and as for Writs of Summons you can produce none till the 23 d. of this King to Summon them to Parliament though I shall shew one by and by that the Doctor has found out of the 18 th of Edward the First whereby he proves they were then Summoned after about twenty-six years discontinuance therefore pray shew me if you can by any sufficient proof that they were there in Henry the Third's Reign except once or in Edward the 1 st's till the 18 th F. I confess your Doctor has not only exâ—eeded all other men but himself too in this rare discovery for whereas in his first Edition of his Answer to Mr. Petyâ—'s Book he was content to follow Sir William Dugdale and make the Commons to have been first Summoned to Parliament in the 49 th of Henry the Third and to have commenced by Mâ—â—ford's Rebellion and so to have still
of Parliament and Taxed with the rest of the Kingdom as often as there were Laws made and Taxes given when their Bishop or Earl was present which was not so for in the first place as for the County of Chester if the Earl had been the Representative in Parliament of his Tenants by Knights Service or otherwise as also of all the Abbeys and the City of Chester it self and all other great Towns in that County his Vote in Parliament would have obliged all of them and there would have been no need of a Common Council or Parliament of the States of the whole County in which they then made Laws and Taxed themselves as a Separate Body from the rest of the Kingdom as may appear from these following Records which Mr. A. hath given us the first of which is a Writ of K. Edw. I. directed Archiepiscopis Episcopis Abbatibus Prioriâ—us Baronibus Militibus omnibus â—liis Fidelibus suis in Comitat. Câ—striae reciting that whereas the Prelates Counts Barons alii de Regno had given him a 15 th of their Moveables He desires that they also would of their Benevolence and Courtesie in Latin Curialitate grant him the like Subsidy which Note could not be done out of a Common Council So likewise in another Writ of the 20 th of this King reciting that whereas the Probi Homines Communitas Cestriae sicut caeteri de Regno nostro 15 mam partem omnium mobilium suorum nobis concesserunt gratiose Now supposing as the Doctor always does that these Probi Homines were the Earls Tenants in Capite what can this word Communitas here signifie but another sort of men distinct from them viz. the Communalty or Commons of that County And which is also remarkable this County was now fallen to the Crown for want of Heirs male of the last Earl and so according to the Doctors notion the King being their sole Representative needed not to have been beholding to them for these Subsidies since tho not as King yet as Earl of Chester he might have Taxed them himself which yet he thought not fit to do because he knew it was contrary to the Rights and Priviledges of that County which had ever since the grant of it to Hugh Lupus by Will I. always been Taxed by themselves Which Priviledges are also expressly set forth in a Supplication of all the Estates of this County Palatine to K. Henry the Sixth which Mr. P. has given us from an Ancient Copy of it then in the hands of Sir Thomas Manwaring of that County Baronet Wherein the Abbots Priors and Clergy Barons Knights Esquires and Commonalty set forth that they with the consent of the Earl did make and admit Laws within the same c. and that no Inheritors or Possessors within the said County were chargeable or lyable or were bounden charged or hurt of their Bodies Liberties Franchises Lands Goods or Possessions unless the said County had agreed unto it Now what can here be meant by County but the Common Council or Parliament thereof since otherwise they could make no Laws nor do any other publick Act The like I may say for the County Palatine of Durham which from the Grant thereof by William Rufus to the then Bishop had always been Taxed by themselves and not by the Bishop in Parliament and that as low as the Reign of Edw. 3. as appears by this Record of the 14 th of that King containing a Letter or Commission to R. Bishop of Durham reciting that whereas the Prelates Earls Barons and the Commons of Counties had given him a 9th of their Goods there mentioned that therefore the Bishops should convene the Magnates Communitatem Libertatis vestrae to wit of his County Palatine ad certum diem locum with all convenient speed and that done to perswade and excite the said Magnates Communitas to grant the King the like or a larger Subsidy or Aid towards the maintainance of his Wars which had been altogether in vain if the Bishop or the King could in those days have Taxed this County at their Pleasure Now if these great Tenants in Capite could not Tax their Mesne Tenants without their consents much less could the rest of the Tenants in Capite in England impose Taxes on their Tenants in Military Service or in Socage without their consents which last had a much less dependance upon them M. I must confess I never considered these Precedents of the County Palatine of Chester and Durham and therefore can say nothing to them at present since it is matter of fact but as to Reason and Law I think it is consonant to both that not only Tenants in Military Service but Socage Tenure should be found by the Acts of their Superior Lords of whom all the Lands of England were formerly held by Knights Service And tho in Process of time many of these Estates and Lands became free Tenements or were holden in Socage that is were Free holders yet the Lords retained Homage which in the times we now write of was no idle insignificant word and by that a Dominion over the Estate whereby upon Disobedience Treachery or Injury done to the Lords c. the Lands were Forfeited to them and although the Lands nor the Tenants of them which were termed Free-holders were subject to any base Services or Servile works yet the Lords had a great Power over these Tenants by reason of their doing Homage to them which tho now antiquated yet eo nomine their Lands were many ways liable to Forfeiture and Taxes too So that upon all thesâ— accounts it was then as reasonable that the Tenants in Capite should in those days make Laws and grant Taxes for all the rest of the Kingdom as the Tenants in Capite in Scotland should do so to this very day for all the Inhabitants of that Kingdom of never so great Estates and to this Argument which is certain in matter of fact you have yet answered nothing nor do I believe can F. I cannot see notwithstanding what you have now said that the Superior Lords by reason of Homage should have an absolute Power over their Tenants Estates For tho in the Profession of Homage to the Lords I grant the Tenant thereby promised to become the Lords Man yet he never thereby meant to become his slave and there were mutual Duties on both sides so that if the Lord failed to protect his Tenant in his Estate or unjustly oppressed him he might have refused nay renounced his Homage till the Lord had done him right nor can I see how a bare right of having the Forfeiture of the Estate in the Cases you have put which yet let me tell you were never so strict in respect of Socage as Military Tenure as I could shew you were it worth while for if this right of Forfeiture alone could give the Superiour Lord a Power over his Tenants Estate to make Laws for
him and Tax him as he pleased then by the same Rule the King as Supream Lord over all his Tenants in Capite should have had the like Power over them of making what Laws for them and imposing what Taxes he pleased upon them without their consents and so there would have been no need of Common Councils or Parliaments at all since upon your Hypothesis the Tenants in Capite were the only Persons that had any right to appear there But if neither the Wardship Marriage nor Relief of the Heir could give the King such a Power over his Tenants in Capite much less could they attain the like right over all their Mesne Tenants by Knights Service for that would have given them a greater Power over their Tenants then the King himself had over them therefore if those great Tyes of Wardship Marriage and Relief of the Heir could neither give the King nor yet any Tenant in Capite power over the Estate or Liberty of his Tenants by Knights Service much less over their Tenants by Socage Tenure who were not under this subjection and farther if a right of Forfeiture alone in some Cases could have given the Lords a Power of making Laws and granting Taxes for his Tenants in Socage then they should have kept that right by this Rule since all Lords had a right of Forfeiture even upon their Tenants in Socage in some Cases before the Statute of taking away Knights Service and the Court of Wards and Liveries in the second year of King Charles the Second as I could prove were it worth while As to Scotland I shall not deny the matter of fact to be as you say that it hath at this day no other Representatives in their Parliament but the Tenants in Capite yet whether it was so or not anciently I very much doubt since I find the very same words and Phrases made use of in the Titles of their old Statutes as also in their Records to express the Constituent parts of the great Council of that Kingdom as were used in England to express those of England at the same time For proof of which pray see the old Charters of King Malcolme III. and David I. as you may find them at the end of the 2d Vol. in Mr. Dugdales Monâ—st Angliâ— and you will see the former to have bin made by the Assent of the Comites Barones Regni Clero adquie cent que Populo c. and as I shall also shew you from Sir Iohn Skenes Collection of Scotish Laws to begin with the most ancient there Extant viz. an Assize or Statute made in the time of King William Sir named the Lyon who began his Reign Anno. Dom. 1105. in the Fifth of our Hen. I. to the observance whereof it is there expressed that the Epiâ—copi Abbates Comites Barones Thani tota Communitas Regni tenere firmiter juraverunt so likewise King Alexander II. who began to Reign Anno. 1214. which was the Sixteenth year of our King Iohn and he made his Laws de confilio assensu venerabilium Patrum Episcoporum Abbâ—tum Baronum ac proborum hominum suorum Scotiae and who these were may also farther appear by the begining of certain Statutes made by the said King Alexander in the same Year which begin thus Statuit Rex per consilium assensum totius communitatis suae c. I shall next produce the Title of a Parliament holden the 13th of Rob. I. who began his Reign Anno. Dom. 1306. the 3d. of our Edward I. In Dei nomine Amen Roberâ—us Dei Gratia Rex Scotorum Anno Regni suo Decimo tertio die Dominica proxima c. habito solenni tractatiâ— cum Episcopis Abbatibus Prioribus Comitibus Baronibus aliis Magnatibus de Communitate totius Regni ibidem congregatis and which Title concludes thus de Communi consilio exprâ—sso conâ—ensu omnium Prelatorum libere Tenentium predictorum ac totius Communitatis predicte ordinavit condidit c. Statuta infra Scripta c. So likewise in an ancient Manuscript called Scoto-Chronicon formerly in the Possession of the Right Learned and Honourable Arthur Earle of Anglesey and now in the Herald Office you will find the Entail of the Crown of Scotland to have been made by this King Robert Anno. Dom. 1315. in a general Council or Assembly of the whole Kingdom of Scotland as well Clergy as Laity which as this Author tells us who lived within Sixty Years after was held Dominica proxima ante festum Apostolorum Congregati apud Aere in Ecclesia Parochiali ejusdem Laici Episcopi Abbates Priores Archidiaconi nec non Diaceni caeteri Ecclesiarum Praelati Comites Barones Milites caeteri de Communitate Regni Scotiae tam Cleri quam Laici c. from which it is apparent There was a great Council of the whole Kingdom as in England more comprehensive then that of Tenants in Capite alone And that our English Records also agree with these Scotch Statutes you may see by 2 Records which Mr. Pryn has given us in his History of Papal Vsurpations out of the Rolls of the 17th of Edw. I. it is a Letter to Eric King of Norway concerning the Marriage of his Son Edward with his Grand-daughter then Heiress of Scotland and Norway reciting that the Custodes Scil. Regni Scotlae Magnates Praelati ac tota Communitas predicti Regni Scotiae unanimi expresso consensu had agreed to the said Marriage So likewise in another Letter of this King Edwards about the same Marriage he declares that he had by his Procurators therein named treated and agreed with the Custodibus Episcopis Abbatibus Comitibus Baronibus tota Communitate ejusdem Regni and it presently follows ac praedicti nobiles tota Communitas Regni Scotiae praedicti Now whom can this word Communitas signifie put here distinct from the Earls Barons and Nobles but the Commons of that Kingdom So likewise in the 14th year of King Robert I. there was a Letter sent from the Parliament of Scotland to the Pope complaining against the violence of the King of England which is to be seen in Manuscript and is also Printed by Dr. Burnet in his History of the Reformation and by which it plainly appears that the Comites Barones Libere Tenentes tota Communitas Scotiae agreed to this Letter And that the Cities and Burrough Towns were at that time part of this Communitas appears by the League made betwen this King Robert and the King of France in the 28th year of our Edw. I. which is to be seen in a Roll of this year still Extant in the Tower which League was ratified and confirmed in their Parliament by King Iohn de Bayliol ac Praelatos nobiles Vniversitates Communitates civitatum villarum praedicti Regni Scotiae and I suppose you will not deny that in Scotland the Cities
Writ to the Sheriffs of Counties to Summon two Knights de Legalioribus Discretoribus singulorum Comitatuum â— though it doth not appear by the Writ whether the Sheriffs of the Counties were to Elect and send these Knights the Sheriffs being then of the Faction and made by them for 't is there said only quod venire faciarâ— There are also other Writs recited to have been directed to all the great Cities and Towns of England as also to the Cinque Ports to send two of the most Legal and Discreet of each of the said Cities Burroughs Towns and Cinque Ports to the said Parliament at Westminster at the time aforesaid So that without the History of this Niâ—k of time these Writs which are said to be for the Delivery of the Prince out of Prison and for the settling of tranquility and Peace in the Nation cannot be understood But Prince Edward's Release could not be agreed upon in this Parliament whatever other Business might be dispatched So that things still remained in this uncertain condition the King being all this time a meer Shadow until such time as Simon Montfort and Gilbert de Clare Earl of Glocester falling out the latter at last took up Arms and joyning with the Earles of Surry and Pembroke to whom also came Prince Edward after he had made his Escape from Hereford they altogether raised considerable Forces against Monfort who meeting them and joyning Battle near Evesham Monfort with one of his Sons and many other Lords and Knights were Slain and all his Party routed Now pray tell me if this is not a very clear account from the History of the matter of Fact why the Commons were first called to Parliament by Monfort during his Rebellion and I think I can also give you very good reasons and Authorities to back them why they were again discontinued all the rest of this Kings Reign untill the 18th of Edward I. F. I shall tell you my opinion of your Narrative by and by but in the mean time pray satisfie me in one or two Questions pray Sir what may be the reason that we can find but twenty three Earls and Barons Summoned of that great number there was then and only to thirteen Bishops in this Parliament and yet at the same time there should be summoned above an hundred Abbots and Priors and but five Deans of Cathedral Churches pray why might not these numerous Barons be trusted as well as all the Abbots and Priors M. As for his not Summoning all the the Earls Barons and Tenants in Capite but putting Knights of Shires and Burgesses in their rooms there may be a very good reason given for it viz. the danger that Simon Monford and his Privado's apprehended from the too great Concourse of the Nobility and their great Retinueâ— and the Example of his own and the Barons Practices at Oxford in the Parliament of 42 d. of Henry the Third might be the cause why they altered the ancient Usage and of their sending Writs out commanding the Sheriffs of each County as also the Cities and Burghs to send two Knights Citizens and Burgesses respectively But the Reason why there was so many Abbots and Priors Summoned was because Simon Monfort thought himself sure of them He was a great Zealot and a Godly Man in those times and a great Minion of these Religious men as then called as also of the Bishops and Clergy and they were at least seemingly Great Favourites of his F. I must confess there is some colour of Reason why Simon Monfort should Summon so many Abbots and Priors to this Parliament if he were sure of all their Votes before hand but there is no certainty of this for if he had been so sure of them there was as much reason why he should have called them all likewise to the Parliament at London which you say he Summoned the year before when with the Consents of the Bishops Barons and others he made the new Ordinances you mention but you cannot find in any Historian or Record that he then Summoned so many of them and it seems pretty strange that all these Abbots and Priors and Deans not a fourth part of which were Tenants in Capite should all take the trouble to come to this Parliament without any scruple if neither they nor their Predecessors had ever been Summoned before But the other reason you give why so many Earls and Barons should be omitted is much more unlikely for if the numerous Barons Factious Practices at Oxford had before frustrated Monfort's designs there had been indeed some reason why he should have done all he could to have hindered their coming again whereas on the contrary the Earls and Barons at the Parliament at Oxford though they came thither with Arms and great Retinues yet it was only to joyn with him and to force the King to agree to the Oxford Provisions But if the Commons were now Summon'd as you suppose to curb the extravagant Power of the Lords yet it could not be his Interest or indeed in his Power so to do not the latter because the Earls Barons and Tenants in Capite were too powerful and numerous a body to have suffered such an affront and breach on their Right as this was Nor could he and his two and twenty Companions have ever dared to have displeased so great and powerful a body of men as you must allow your great Barons and Tenants in Capite both great and small then were and who made such a powerful opposition for their Liberties in King Iohn's time or that they would have thus tamely permitted men wholly of the Sheriffs choice to have thus taken away their places in Parliament and made Laws for them much less the Citizens and Burgesses most of whom were certainly not Noble by Birth nor yet held Lands in Capite nor could it be for Monfort's Interest so to do for the greatest part of the Earls and Barons were of his side already and thus to â—â—clude them had been the only way to disoblige them and make them leave him and go over to the King's side So that I must needs tell you upon the whole matter granting Monfort to have been such a Knave and Hypocrite as you make him yet certainly he was no Fool but a great Politician and I leave it to your self or any indifferent person to judge whether it was possible for him to do so silly and unpolitick a thing as this For granting all the Abbots and Priors to have been of his side as you suppose they could no way counterballance the great Power of those Earls and Barons and numerous Tenants in Capite that were all hereby excluded So that let the Commons have been Summoned when you will it was certainly before this 49 â—h of Henry the Third or not at all But to give you my opinion why so few Earls and Barons are mentioned in this Record of the 49 of Hen. 3 d to have been Summon'd
to examine this Quotation because I confess it seems very specious at first sight but if it be throughly examined will make nothing at all for you And to this end pray let us read the Dr's Observations on this Passage at the end of his Answer to Argumentum Antinormaunicum F. But you need not read from the beginning of that Paragraph since I so far agree with the Dr. as that by Principes diversi Ordinus are not to be understood as this Author renders them whom the Dr. here writes against the Chief or Principal Men of several ranks or conditions but the Chief and Principal Men of both Orders viz. of the Clergy and Laity yet will it not therefore follow as the Dr. here would have it that these Principes diversi Ordinis were only Bishops â— Abbots and great dignified Clergy-men only and the Procenes and Magnates the Earls Barons and Temporal Nobility alone for though I grant he produces several Quotations out of Florence of Worcester Malmsbury Eadmer to prove that Principes Regni Ecclesiastici Secularis Ordinis Primates Regni utriusque Ordinis c. were at these Councils yet I have already proved that the words Principes and Primates do not in their proper signification signifie none but Bishops or dignified Clergy-men on the Temporal Nobility only since these words mean no more than Chief Principal or most considerable men both of the Clergy and Laity who had by reason of their Offices Dignities or Estates any place in our General Councils at that time and which did certainly comprehend the Inferiour Clergy also tho' the Dr. has made bold to pass them by without any notice taken of them and if they were then there by the same Rule the lesser Nobility or Commons were also summoned from divers Provinces Cities and great Towns M. Well But pray see here does not the Dr. prove plain enough that this Gentleman he writes against is mistaken in his Translation and applying the words Provinciis Vrbibus for Chief Lay-men from divers Countreys Cities and Burroughs whereas the Dr. here proves that the words mentioned in this passage cannot here mean Lay-men sent from County to Cities but only the Bishops whose Seats are here called Vrbes and which as the Dr. shews us were by a great Council held at London in the year 1077. being the 11th of King William translated from Villages to Cities as were Sherburn in Dorsetshire removed to Sarum Selsey to Chichester Litchfield to Chester which was before this Council at Westminster cited by Sulcardus which this Author places in the 14th of this King And the Dr. here farther proves from these words following pro causis cujuslibet Christianae Ecclesiâ—e that this Universal Synod being called for hearing and handling the Causes of every Christian Church that these words every Christian Church must certainly mean many Churches in England which in reason and probability could not be meant of the small Parish-Churches all the Nation over and therefore must be understood of Cathedrals or Churches where Bishops Seats then were or where they had been or were to be removed F. Pray give me leave to answer this Comment of your Doctors before we proceed farther In the first place suppose I grant him that by Vrbes may here be meant such Cities as had Bishops Seats yet does it not therefore follow that it shall signifie no other Cities or Towns but Bishops Seats only for tho' I grant in the Modern acceptation of this word Vrbs here in England a City and a Bishops Seat are one and the same yet it is plain that at first it was not so for then there had been no need of the Law you mention whereby it was ordained that Bishops Sees should be removed from Villages to Cities nor it seems were all of them so removed at this Council you mention since the Dr. shews us from this very place here cited that some of them still remained in Villis Vicis in Villages and small Towns and therefore it is here said Dilatum est ad Regis Audientiam qui in partibus transmarinis tunc Temporis bella gerebat â—And tho' the Dr. here supposes tho I know not on what grounds that the persons summoned by the King to this Synod from Provinces and Cities were such as were concerned or able to advise the King in this matter of the conveniency of the places whither the Removals were to be made as Deans Arch-Deacons and other dignified persons and Church Officers as well of the Clergy as Laity c. And also the Principes Regni the great Nobility who were in those days present in those Assemblies Now I shall only observe from these words of the Doctors that even in his own supposition all Cities had not yet Bishops Seats annext to them and therefore the word Vrbibus cannot mean Bishops Seats alone but any other great or walled Towns But the worst of it is it falls out very unluckily for the Dr. that this Charter we now mentioned bears date A. D. 1075. two years before this Law for removing Bishops Sees to Cities was made so that all his Learned Comment on that matter signifies just nothing and this is one of the Doctors very rational conclusions which have no other ground than his own Fancy to support them In the next place pray observe the Dr. owns that by these Principes universi Ordinis were meant the chief Clergy-men and Nobility he there musters up but passes by or else did not consider the whole Context of these words hii autem illo tempori diversis Provinciis Vrbibus ad universalem Synodum Convocati which must certainly refer to the Principes Regni diversi Ordinis to the chief and considerable Men both of the Clergy and Laity of the Kingdom who were alike summoned from divers Countreys and Cities and great Towns to this Synod Now pray do you or your Dr. tell me if he can what Earls Barons or great Noble-men were then summoned from Cities or great Towns as well as the Bishops and Deans of Cathedrals which if you cannot do I see no reason why we may not understand these Principes Regni who were also summoned from the Countreys and Cities for the Representatives of the Commons of those Cities and Towns at that time In the next place I think the Dr. is as much out in his interpretation of the word pro causis cujuslibet Ecclesiae for the causes of every Cathedral Church since it must certainly mean not only Cathedral Churches but all other Churches whether Parochial or Conventual for that it takes in the latter appears by one great cause of the summoning this Council which was chiefly for the confirmation of the Priviledges of the Abby of Westminster which sure was no Cathedral Church and yet must be some Church or Ecclesiastical Corporation or else this Synod could have had nothing to do with it And I doubt not but this General
Prescription of Knights Citizens and Burgesses appearing in Parliament before the 49th of Henry the 3d for since you have now proved they were there by an undeniable Record in the 11th of Edward I. I shall now confine my self to Sir Henry Spelmans and Sir William Dugdales as well as the Drs. first Term of 49th of Henry the 3d. F. I shall observe your desires and in performing of which I shall pursue this Method I shall first give you a general Definition of Prescription and shall then prove that the Knights Citizens and Burgesses have always claimed to appear in Parliament by vertue of this general Right of Prescription Now the Terms of the Law tell us That Prescription is when a man claimeth any thing for that he and his Ancestors and Predecessors whose Estate he holds had or used any thing in all Times whereof no memory is to the contrary now pray let us see to what time this is limited that shall be said to be within Memory and what was anciently counted beyond time of Memory in a Prescription which may be best learnt from a Petition of the Commons to King Edward the 3d in the 43d of his Reign which is to be found in the Parliament Rolls of that Year wherein among other Petitions of the Commons this is one which I shall render and abridge out of French Item because the whole time of King Richard I. is held for temps de Memorie that it would please the King farther to limit this time so that it do not pass the Coronation of King Edwards Grandfather to the King that now is but mark the Kings Answer to this Petition Let the Law continue as hath been hitherto used until it be otherwise Ordain'd so that since there has been no Alteration in this Point from the Reign of Edward the 3d then the Time beyond Memory or whereof there is no Memory to the contrary continues still beyond the time of Richard the I. for Littleton tells us that all the time of Richard I. is time of Memory and therefore Sir Edward Cooke in his Comment upon him says That this was intended from the first year of his Reign for from that time being indefinitely doth take in all the whole time of his Reign which is to be observed Having fixt the certain time of a general Prescription beyond Memory I shall now proceed to shew you that the Claim of the Commons appearing at the Common Council or Parliament of the Kingdom is beyond that time which since I cannot do directly by reason of the loss of the Records of Parliament of those times any farther then has been already in the Case of the Burgesses of St. Albans which alone is I think sufficient to satisfie any reasonable man we must therefore make use of such Collateral Proofs and Records which tho they not directly yet by undeniable Consequence will prove the Point in Question I shall therefore in the first place make use of a Writ in the Exchequer of the 34th Edward I. directed to the Barons thereof reciting that whereas the Men of Coventry set forth in their Petition to the King that the said To all is not a City Burrough nor Demesne of the Kings so that the Townsmen were not wont to be taxed as Citizens and Burgesses or Tenants in ancient demesne in any Taxes granted to the King and his Progenitors but only with the Community of the said County of Warwick and yet that the Taxers and Collector of the said County have endeavoured to levy a 30th of their Goods towards an aid granted by the Communities of the Cities and Burroughs to the King to their Damage and Impoverishment and therefore pray remedy the King therefore Orders that the Rolls be searcht concerning such Taxations in the said Town and if it evidently appear by them that it is as they set forth and that the said men were always taxed with others without the Towns Burroughs and Mannors aforesaid in all payments of this sort that then they should not permit the said Taxers and Collectors to distrain the said Inhabitants to pay the King by reason of the said Concession of a 30th otherwise quam in totis temporious retroactis in hujuscemodi casu fieri consueverit c. from which Record we may draw these Conclusions First That this Town of Coventry did not hold of the King and yet was a Burrough and as such sent Members to Parliament in the 26th 28th and 30th of Edward I. as appears by the return of Writs of that Year Secondly That yet it prescribed Totis temporibus retroactis in all times pass'd to be taxed with the Body of the County and not with the Communities of the Cities and Burroughs in all Taxes granted to the King and his Progenitors which plainly shows that the Cities and Burroughs granted Taxes by themselves in the times of his Progenitors that is in the time of King Iohn at the least Lastly That the King orders the Rolls to be searcht which had been idle direction had it then been known or believed that the Cities and Burroughs never gave any Taxes for themselves in Parliament before the 49th of Henry the Third but little above forty years before the date of this Writ I shall shew you a like Writ which is to be sound in the same place for the Towns-men and Tenants of Beverly in the County of York in 8 vo of Edward the Second seting forth in their Petition that altho' they had been Taxed to to the 20th lately given to the King per Communitates Comitatuum by the Taxers and Collectors of a Subsidy of the 20th in the said County altho' they and their Ancestors had been accustomed to be Taxed to all Aids as well to the King as to his Propenitors granted per Communitates Comitatuum ejusdem Regni with the Community of the County and not with the Communitates Civitatum Bargorum yet that the Taxers and Collectors of the 15th lately granted by the Commons of the Cities and Burroughs do grievously distrain them to their great damage and therefore pray Remedy whereupon the King commands that the Rolls be searcht of such like Taxations and if it appear that the said Town has always been hitherto Taxed as they in their Petition set forth that then they shall be discharged from the said 15th From which Record we may conclude that this Town of Beverly tho' an Ancient Burrough and as such was summoned to send Burgesses to Parliament in the 26th of this King yet did not hold oâ— the King in Capite nor in Ancient Demesne Secondly That Aids had been given the King and his Progenitors per Communitates Comitatuum i. e. by the Commons of the Counties which could not be done but by their Lawful Representatives and that in Parliament but how far these Progenitors must extend I need no repeat to you the ground of which Petition being admitted by the King in
of Knights of Shires I will not dispute it farther with you since it is a Point of your Common Law in which I confess my self but meanly skilled but I shall take farther time to advise with those that know better in the mean time as for the Cities and Burroughs let them have appeared when you will their coming to Parliament could not be so ancient as before the time of Richard I. much less the Conquest as you suppose since Mr. Pryn hath in the same second part of this Parliamentary Register traced the summoning of the Burroughs to their very Original and proved it could not be ancienter then the 49th of Henry the 3d. I shall here contract his Arguments and give you them as I did the former First He here proves that there were never but 170 Cities and Burroughs who sent any Members to Parliament of which 170 in his Catalogue nine of them never had but one or two Precepts and others but four Precepts of this Nature sent them upon none of which Precepts the Sheriffs made any returns of Burgesses as these Ballivi Libirlatis nullum mihi dederunt responsum or nihil inde secerunt attest whereupon they never had any more Precepts of this kind sent them to this Day Christ-Church in Hampshire onely excepted which of late years hath sent Burgesses to Parliament so that in Truth there were only 161 Cities and Burroughs in England that ever sent Members to Parliament during all the precedent Kingâ— Reign viz. From the 26th of Edward I. to the 12th of Edw. the 4th Secondly That 22 more here named of these 161 never elected and returned Burgesses but once and no more during all the said time Thirdly That many more of these ancient Burroughs here named never sent Members some of them more then twice others thrice others four others five others six others seven others eight times and Lancaster has but 13 Elections and Returns of Burgesses and no more during all the above mentioned Reigns Fourthly That altho some of these Burroughs here named who seldom sent any Burgesses tho they were summoned by the Sheriffs Precepts to Elect Burgesses without any great intervals of time to six or seven Succeeding Parliaments yet most of them had along discontinuance of time some of above 200 others above 300 years distance between those few respective Returns of which he here gives you several Instances and referrs you to his precedent Catalogue of Returns for the proof of it So that there were but 112 Cities and Burroughs taking in the Cinque Ports and all who senâ— Members to Parliament in the Reign of Edward I. seven of which made onely one return and no more for ought I can discover before or after Edward 1st Reign till of very late Years Yet that in Edward the 2ds Reign there were Precepts issued by the Sheriffs and returns of Burgesses for 19 new Burroughs here named which for ought I can discover never elected any Burgesses before Fifthly That under this long Reign of Edward the 3d. there were Sheriffs Precepts issued to 19 new Borroughs returns made upon them to serve in Parliaments or great Councils who never sent any Members before and Precepts to more that made no returns at all thereupon as for the Cinque Ports of Dover Romney Sandwich Winchelsey Hastings Hâ—the and Rye though there be no Original Writs for or returns of their electing and sending Barons to Parliament now extant before the Reign of Edward the 3d yet it is apparent by the Clause Rolls that they sent Barons to Parliament in 49th of Henry and during the Reign of Edward 1st and 2d of which more anon Sixthly That King Richard the 2d Henry the 4th and Henry the 5th created no new Burroughs at all neither were there any Writs or Precepts issued to or Election of Citizens or Burgesses by any new Cities or Borroughs but such as elected them before their Reigns Seventhly That about the midst of King Henry the 6th long Reign there were Precepts issued to and returns made by five new Burroughs and no more which never sent Burgesses to Parliaments before viz. Gatton in Surrey Hâ—ytesbury Hyndford Westbury and Wootton Basset all in Wiitshire yet very poor inconsiderable Burroughs tho they elect Burgesses at this day That during Edward the 4th Reign there was one new Burrough here named which began to send Burgesses to Parliament under him though it never sent any before F. Well but how came this about that so many new Burroughs were made in some Kings Reigns and few or none in others â— and so many omitted that had served before in other Parliaments M. Pray read on and you will see this Author gives us a very good account of that and impures it to two Causes First The Partiality and Favour of the Sheriffs and the Ambition of the Neighbouring Gentry who desired to be elected in such new Burroughs Secondly The meer Grace and Favour of the King who by divers Charters to new Corporations have given them the Priviledge of sending Burgesses to Parliaments For Proof of which pray see what this Author here farther says It is evident by the precedent Sections and Catalogue of ancient Cities Burroughs Ports and their returns of Writs and Election before specified with these general Clauses after them Non sunt aliae or ullae Civitates nec Burgi in Balliva mea or in Comitatu praedicto praeter c. as you may see by the return of the Sheriff of Bucks Anno 26 of Edward I where he denies there were any Cities or Burroughs in his whole County and yet the very next Parliament but one within two years after the Sheriff of Bucks returns no less then three Burroughs viz. Agmundesham Wycombe and Wendover with the Burgesses Names that were returned so that the 78 new Burroughs here named were lately set up in the Counties since Edward the 4ths Reign by the Practice of Sheriffs and the Ambition of Private Gentlemen seeking to be made Burgesses for them and Consent of the poor Burgesses of them being courted and feâ—sted by them for their Votes without any Charters from the King and are all me in poor inconsiderable Burroughs set up by the late Returns and Practices of Sheriffs And tho others may conceive that the Power of our ancient Burroughs or Cities Electing and sending Burgesses and Citizens to our Parliaments proceeded originally from some old Charters of our Kings heretofore granted to them and to which Opinion I once inclined yet the Consideration of the new discovery of the old Original of Writs for Electing Knights Citizens and Burgesses I found in Caesars Chappel hath rectified my former mistake herein and abundantly satisfied me that neither bare ancient Custom or Prescription before or since the Conquest not our Kings Charters but the Sheriffs of each Counties Precepts and Returns of Elections of Burgesses and Citizens for such Burroughs and Cities as they thought meet by Authority
and Power granted to them in and by this general Clause in the Writs of Summons issued to Sheriffs for every County before every Parliament enjoyning them in these Words Tibi praecipimus firmiter injungentes quod de Comitatu praedicto duos milites de qualibet Cititate duos cives de quolibet Burgo duos Burgesses at discretioribus c. sinâ— dilatione Eligi eos ad nos ad dictos diem locum venite facias c. By vertue of which general indefinite Clauses used in all Writs of Summons ever since 23d of Edward I. without designing what particular Cities or Burroughs by Name within each County the Sheriff should cause to Elect or send two Citizens or two Burgesses but leaving it wholy to each Sheriffs Liberty and Discretion to send the Writ directed to him to what Cities and Burroughs he pleased thereupon every Sheriff used a kind of Arbitrary Power in the Execution of this general Clause according as his Judgment directed or his Assertions Favour Partiality Malice or the Sollicitations of any private Burroughs to him or of Competitors for Citizens or Burgesses places within his County swayed him this is most apparent by some Sheriffs in several Counties returning more Burroughs and Burgesses then their Predecessors others fewer some omitting those Burroughs returned by their Predecessors others causing Elections and Returns to be made for such new Burroughs which never elected or sent any before nor after their Sherivalties as is evident from the Returns Annis 28.33 E. 1. and 34. of E. 3. for Divâ—n Anno 26. E. 1. for Yorkshire Anno 33 E. 1. for Oxfordshire Anno 28. of E. 1. for Hampshire Annis 33. and 34. of E. 3. for Sommerset Annis 25.27 and 28. H. 6 for Wilts c. So that the first Writs or Memorials of any extant on Record for electing Knights Citizens and Burgesses to come to Parliament are those of 49th of Henry 3d but these Writs onely commanded that the Sheriffs cause to come two Knights c. of each County and the like Writs were directed to the Cities of London Lincoln and other Burroughs of England to elect two Citizens and two Burgesses for each of them and the rest of the Cities and Burroughs in England the like Writs were also issued to Sandwich and the rest of the Cinque Ports without expressing their Names or Number in each County and this form I conceive says Mr. Pryn continued till 23d of Edward I. when the aforecited general Clause authorizing and intrusting every Sheriff to cause two Citizens and two Burgesses to be elected c. out of every City and Burrough in his County was first put into the Writs by Authority and Colour whereof every Sheriff sent Precepts to what Cities and Burroughs of his County he pleased F. I have with Patience heard this long History of Mr. Prins concerning the Election of Citizens and Burgesses from which I must notwithstanding make bold to differ for tho I own him to have been a man of great Learning and Industry in matter of Records yet I doubt he was often too quick in taking up of Opinions upon slender grounds therefore for the answering of him I shall first shew you the improbability of his Suppositions and in the next place shall make use of no other Confutations then what his own Book will afford us as to the Writs of Summons Returns and other things he lays so much stress upon in the first place for the Notion of Sheriffs sending Precepts to what Cities and Burroughs they pleased and consequently making as few or as many send Members to Parliament as they would that this was not so at first is evident from those very Writs of 49th of Henry the 3d by which it appears that they were not then directed to the Sheriffs for any more then to the Counties but as for the Citizens and Burgesses and Barons of the Cinque Ports they were then directed to themselves and he also confesses that this continued so from that time till the 23d of Edward I. so that all this while being about 28 Years it seems the Nomination of what Cities and Towns should send Members to Parliament did not depend upon the Will of the Sheriffs but upon somewhat else and I have asked you once tho without receiving any answer what Rule Simon Montfort went by to tell what Cities and Burroughs were to send Members and what not since the Words are onely in general de quolibet Burgo c. and therefore pray answer me now if you can M. I conceive in the first place as for the Cities Simon Montfort sent to those that were anciently esteem'd so viz. such as had Bishops Sees annext to them such as London Lincoln and particularly named in these Writs and others of the same rank and as for the Burroughs tho we have not the returns of them left us yet I suppose they were such Walled or other Towns as were of some considerable Note in England such as he thought were most proper for his turn F. That this could be no Rule appears by this clear Proof First That neither Coventry and Litchfield tho the Sees of the Bishops were not counted Cities in the time of Edward the first nor long after nor yet Ely for it appears by the Lists that Mr. Prin hath given us that it never sent Burgesses but only once and that to a great Council till of late years So that the Sees of the Bishops was it seems no general rule to make Places capable of sending or not sending of Citizens to Parliament And in the next place as to Burroughs that is pure Imagination that none but considerable or walled Towns sent any Burgesses at first whereas in the first List of returns which Mr. Pryn has here given us of the 26th and 28th of Edward I. which are the first extant for ought I know except those of 23d which I have never yet seen besides the Shire Towns of the Counties there are returns of a great many small Burroughs which never had any Walls nor yet for ought as we can find had any thing remarkable to make them be pircht upon to send Burgesses more than others but of these I shall speak more by and by onely shall remark this much that there must have have been some other Rule besides Montforts own Will for all this and what this rule could be unless an ancient Prescription in those Towns to send Members I desire you or your Dr. would shew any good Reason or Authority to the contrary And after the 23d of Edward the I. when Mr. Prin supposes that the Sheriffs by this general Clause in the Writs began to take upon them this new Authority of sending Precepts to and making Burroughs of what Towns they pleased this could not in the first place extend to such as were before that Counties of themselves such as London York Bristol c. nor yet such as were Ancient and
find them And for the truth of this Appeal to Mr. Petyt who assures me he found the Returns of the Knights Citizens and Burgesses to Parliament of the 23d of Ed. I. in an old Chest in the Exchequer among other things of a quite different nature which Mr. Prin never saw or else certainly he would have given in the Returns to this Parliament as well as he does the Writs of Summons to it and yet that even these were not always entred upon the Clause-Rolls but lay scattered up and down the Chappel of the White-Tower Mr. Prin himself confesses in his Introduction to his third part of his Parliamentary Register that he found no less than ninety five loose Original Writs for Elections and Returns of Knights Citizens and Burgesses to Parliaments and great Councils in the Reign of Ed. 3. which were never entred on the Clause-Rolls and lay there until he found them buried in dust and rubbish as well as oblivion in a confus'd Chaos scattered from each other and intermixed with many hundred thousands of other Writs and Records of various kinds Now what if these Writs and Returns had never been found so that by his own shewing it is no ways certain that there were never any such Writs issued or Returns made for the Counties Cities and Burroughs than those he had before sound and published and he himself also here confesses that by reason of the negligence of Record-keepers there are more Writs and Returns of Elections extant from some Counties than for others tho' all had the like Writs sent them And if this was so as to the Counties it was likewise so as to the Cities and Burroughs the returns of which are commonly endorsed on the back of the Precepts and where they were not so endorsed were much more likely to be lost and farther that the Clause Rolls are no exact Rule for the Summons of Knights or Barons of the Cinque Ports and Burgesses appears by Mr. Prins own shewing viz. That there are no Writs of Summons to the Cinque Ports entred on the Clause Rolls for most part of the Years of Edward 1 2 and 3d. in the List he has here given us of those Years now if so many considerable Burroughs as the Cinque Burroughs could be thus omitted what can we expect for most of the smaller and most inconsiderable Burroughs in England To conclude this Head if by Mr. Prins own Consession the Entries of Elections and Returns upon the Clause Rolls are so very imperfect and that the loose Bundles of Summons Precepts and Returns are far more imperfect so many of them being lost pray tell me how can Mr. Prin or any one else can frame any Argument from these that remain that there were never no more Precepts and Returns from any Burroughs than those he has published us But to come to his third Rank of Burroughs viz. such as for whom their appear no Precepts nor Returns till the Reigns of Edward the 2d Edward the 3d. and other succeeding Kings all which Burroughs he therefore supposes to have been all newly made in those Kings Reigns because there are no Precepts or Returns from them sooner it must there follow that the Sheriffs made all these Burroughs at their Pleasure but Mr. Prin has done well here to adde that they never elected or returned any before for ought he can find to the contrary since it might appear to the contrary for ought he could tell if the returns of the Sheriffs in the Reigns of the former Kings had not been so many of them lost since he here confesses there are no Original Writs and Returns for the Cinque Ports to be found before the Reign of Edward the 3d who yet sent Members to all Parliaments in former King Reigns or how can he tell but divers of these Towns might have been created Burroughs by the Kings special Writs or Charters tho now lost or perhaps unknown to this Author who could not be supposed to understand the Original of all the Burroughs in England their sending Members to Parliament but that he is certainly mistaken in making several Burroughs to have been but new because no Returns are to be found from them before the Reign of Edward the 2d may appear by these for Example First Litchfield which was long before that time a Bishops See and sure then if not a City yet an ancient and considerable Burrough Secondly Old Sarum which was in the Reign of Henry the 3d a Bishops See till it was removed and so consequently by your Rule New Sarum ought to pass for a City and if not was certainly a very ancient Burrough and as such sends Burgesses by Prescription to this day tho the Town be quite destroyed the like I may say of Gatton in Surrey which tho Mr. Prin will have but to be a new Burrough because no Returns appears to have been made for it by the Sheriffs till the Reigns of Henry the 6th yet this is no certain Rule since it was a very old Burrough and had anciently been so Considerable as that we find several great Councils held at it in the Saxon Times tho it be certainly now reduced to a small Hamlet of half a score Houses now I will leave it to your self to judge whether the Sheriff would have pitcht upon so small and inconsiderable a place as this to make a Burrough of had it never sent any Burgesses to Parliament before that Time And I doubt not but those Gentlemen that know the rest of the Towns he has there mentioned with Gatton could say as much for the Antiquity as Burroughs if you please to inquire about them But I have held you too long upon this Head and therefore shall proceed to those two that remains viz. The Ambition of Neighbouring Gentlemen to make as many Burroughs as they could that they might be chosen at them and the desire of such Towns to be made Burroughs to receive the advantages of the Money spent among them at such Elections the first of these in the Times we are now speaking of could be no cause of their sending Members to Parliament since it is certain that before the Reign of Henry the 8th none were Elected for any City or Town but Persons free of or actually Resident in such Cities and Burroughs as appears by the Statute of 1 Henry the 5th which does but recite and confirm this ancient Custom so that this Trick of chusing Members for Beeâ— and Ale has been introduced but of late Ages viz. Since the time of Henry the 8th when Gentlemen began first to be chosen for Cities and Burroughs and if that is so the last cause falls off it self viz. the desire of such small Towns to Elect since if they could get nothing but rather loose by their sending Burgesses to Parliament and paying them their Wages as they must do as long as they chose from among themselves it is unreasonable to believe
that Charter being lost they desire a Confirmation of it from the King whereupon He by this Commission directs a Writ of Enquiry to several Gentlemen and others therein mentioned to enquire if the said Burgesses had enjoyed all those Liberties so granted by the said Charter of King Athelstan or not which would have been ridiculous if the King and Council had been satisfied that no Cities and Burroughâ— sent any Members to Parliament under the Saxon Kings and not before the 49th of Henry the Third and this Authority is the more remarkable because Barâ—staple is one of Mr. Prin's Modern Burroughs for which he can find no Precepts or Returns earlier than the 26th of Edward the Third tho' no doubt as appears by this their Petition in the 17th of this King it had sent Burgesses to Parliament many Ages before tho' the Precepts and Returns upon them be all lost And that not only the Cities and Burroughs do thus claim by prescription but that the Knights of Shires have always claimed the same Priviledge may appear by another Petition of the Commons House extant on the Parliament-Rolls of the 51th of Edward the Third which I shall contract and put into English out of French reciting thus because of Common Right in the Roll de Commune dâ—oit of the Realm there are and shall be Elected two from every County of England to come to Parliament for the Commune of the said Counties And also the Prelates Dukes Barons Counts Barons and such as hold by Barony which are and shall be summoned by Writs to come to Parliament except the Cities and Burroughs who ought to Elect from among themselves such as ought to answer for them Whence we may conclude that the Commons then claimed to come to Parliament of Common Right that is by Common Law or general Custom of the Realm time out of mind as much as the Bishops Abbots and great Lords 2. That neither the Bishops Lords nor Tenants in Capite had any Authority to impose Taxes or make Laws for the Commons of the Counties or these for the Cities and Burroughs without their consents because they had each of them Representatives of their own Order to answer for them in Parliament M. I must confess this would have been absolutely convincing could we have seen this Charter of K. Athelstans but since the Towns-men of Barnstaple do only in their Petition among others set forth this priviledge of sending Burgesses to Parliament now who can tell whether there was any such thing in their Charter or not since they confess they had lost it Or granting it was as they set forth yet is will sufficiently evince that the right of Cities and Burroughs to send their Representatives to Parliaments was not as you suppose as ancient as the Government but had its Original from the Grants and Charters of former Kings F. As to these Objections we can have but all the proof that this Subject is capable of at such a distance of time but if I were a Jury-man in this matter I should rather believe that the Town of Barnstaple had such Charter not long before they made this Petition to King Edward the Third and that there was such Clause therein as they here set forth than that these Towns-men should be so impudent as to desire a new Charter of Confirmation from him of all their priviledges of which this of Electing Burgesses was one if there had never been any such Clause in it at all But as for the other Objection that if it were so then it appears that all the right of Cities and Burroughs sending Members to Parliament is derived from the Grants and Charters of former Kings it is very fallacious as you will find if you consider and compare the Ancient right of the Bishops and Abbots as also of all the Temporal Nobility to come to the great Council of the Kingdom which as to the first of them I proved to be as Ancient as Christianity it self among the English Saxons And as for the Priesthood and Nobility in general to have been as old as the Institution of the Government it self Now tho' you grant that long before the Conquest our Kings had the nomination of Bishops and Abbots and also the making of Aldermen Earls and Thanes who made the Temporal Nobility in those great Councils will it therefore follow that because our Kings were thus entrusted by the people with this prerogative of naming and investing Bishops and Abbots per Annulum Baculum and also of creating those great Men now mentioned that therefore all the right either Order had to appear at those Councils not only proceeded from but depended wholly on the King's good will and pleasure and that he could have chosen whether he would have named any Bishops or Abbots to vacant Sees and Abbeys or made any Aldermen Earls and Thanes or not but have changed the whole frame of the Government into an Absolute Despotick Monarchy by destroying the great Council of the Kingdom whether you believe the Clergy Nobility and People would have suffered any of those Kings to have made such an Innovation Apply this to the right of the most of Ancient Cities and Burroughs in England and see if it do not exactly agree with this parallel Case of the Bishops Abbots and Temporal Nobility since as there were Priests and Nobles who from the very first Institution of our great Councils did not owe their Original to the King but brought it with them out of Germany and to whose Suffrages the first Saxon Kings owed their Elections so no doubâ— were there divers Cities and Towns in England so considerable from the time of the Expulsion of the Britains that it was thought â—it to pitch upon them as most able to send Representatives to the great Councils of the Nation that so they might imitate their old Government in their own Countrey in which the great Cities and Towns had always a considerable share as they have in the German Diets to this day tho' the King might then as he is now be entrusted with the Prerogative of making new Cities and Burroughs with like priviledge with the old ones tho' this was but rarely practised till the Reign of King Iames I. The two Vniversities being some of the first Corporations on which he conferred this priviledge by Charter of Electing and sending two Burgesses to Parliament which power has I confess been exercised even to a grievance in the Reigns of his Son and Grand-sons so that it were to be wisht that there was a Law passed that no New City or Burrough should be made for the future without an express Act of Parliament Now I would very gladly hear what you can further say to so many weighty Authorities which I have now given you for evident it is that if they are compared and considered in series of time that neither Edw. 2d or 3d nor their Judges or Learned Council no nor the Parliaments
to private Churches and if his Nobles or Followers had unjustly dissieâ—ed any Bishop or Abbot of their Estates the King caused them to be restored again as appears by many Presidents of this kind which are to be found in Ingulphus and Eadmerus this being premised let us see in the next place what proportion the Lands belonging to the Church did in those days bear to the rest of the Lands in England now we find in Sprot's Chronicle as also from the old Legierbook cited by Mr. Selden in his Titles of Honour and particularly from that Secretum Abbotis formerly belonging to the Abby of Glassenbury and now in the Library of the University of Oxon that there were not long after your Conquest 60215 Knights fees in England of which the Bishops Abbots and other Church-men then enjoyed 28015. When it is supposed this account was taken then it will follow that in the Reign of your Conqueror there were above 28000 Knights Fees which belonged to the Church and in these we do not any where find that K. William dispossessed their Tenants of their Estates most of which were held in Fee under them and those Tenants were great and powerful men in their Countries and hence we read in the ancient Records and Legier Books of the Barons and Knights that held of divers Bishops and great Abbots several examples which you will find in Sir Henry Spellman Title Baro now it is certain that King William could not turn all these men out of their Estates and give them to his followers without committing sacriledge and invading the Rights of the Church which that King durst not commonly do so that the utmost that you can suppose he could do was to take the forfeitures of all such Tenants of the Church who had taken part with King Harold or had any ways committed Treason against himself which were far from the whole number of them so that here goes off at once almost a half of all the Lands held by Knights service which the King did never dispossess the ancient owners of to these may be also added all Tenants in ancient Demesne all Tenants in Socage as also all Tenants in Gavel kind which in those days made at least two thirds of the Lands of Kent which by the way was never conquer'd but surrender'd upon Terms to â—are their ancient Customs and Tenures as Mr. Cambden himself acknowledges in his description of this County besides what was held in other Counties by the same Tenure as you will find in Mr. Taylor 's History of Gavel kind all which being not Tenures in chief by Knights Service are not Register'd in Domesday book nor does it appear that the owners were ever dispossessed of them to which may also be added the Lands of those smaller Thanes or Officers of King Edward whose names are found in Domesday book who held their Lands ratione officii To all these we may also add all such Norman Noblemen and Gentlemen who having come into England in Edward the Confessors time and having Honours and Lands given them by him had continued here ever since and these were so numerous that it was thought worth while by King William to make a particular Law concerning them that they should partake of all the Customs the Rights and Priviledges of Native Englishmen and pay Scot and Lot as they did of these was the Earl of Moâ—ton besides many others whose names appear in Doomesday book and not only these men but also divers Cities and Towns held Lands of King William by the same Rents and Services as they had formerly paid in the time of King Edward the Confessor as Oxford for example But to give an answer to some of your instances as when you say that King William gave away whole Counties as all Cheshire to Hugh Lupus and the greatest part of Shropshire to Roger de Montgomery c. It is a great error to suppose that these Earls had all the Lands mentioned in these Counties to dispose of at their Pleasure and that they turned out all the Old Propâ—ietors which it is certain they did not as I could prove to you by several instances of Antient English Families who have held their Lands and enjoyed the same seats they had in the Conquerors time so that you see there is a great deal of difference between a grant of all the Land of a County and that of the whole County what is meant by the former is plain but as for the latter it generally implies not any thing more than the Government of that County Thus whereas your Dr. would have it that the greatest part of Shropshire was given to Roger de Montgomery Doomesday says only that he had the City of Shrewsbury totum Comitatum and the whole County But that is soon explained by what follows totum Dominum quod Rex ipse tenebat where it is plain that by Dominium is meant no more than that power to govern it which King Edward had for otherwise the Grant of totum Comitatum had been sufficient M. I confess this is more than I ever heard or considered before concerning this matter but you do not give me any positive proof that at the time when Doomes day Book was made there were any Englishmen who held Earldoms or Baronies or other great Estates of the King or any of his great Men so that what you have said hitherto tho' it carry a great shew of probability yet is no positive proof against the Doctors assertion F. I shall not go about to deny what William of Malmesbury and Henry of Huntington so positively affirm that for sometime before the end of King William's Reign there was no Englishman a Bishop Abbot or Earl in England yet does it not therefore follow that it was thus thorough his whole Reign or if it were so that it will therefore follows that there were few Englishmen who when Domesday Book was made possessed any Lands in England but that in part of King William's Reign there were many English Earls and Barons appears by above a dozen Charters cited by Sir William Dugdale in the Saxon and Latin Tongues in his Monast. Anglic. which are either directed by K. William to all his Earls and Thains or else in Latin Omnibus Baronibus Francigenis Anglis or else Omnibus Baronibus Fidelibus suis Francis Anglis salutem the like Charters also appear of Henry J. and the Empress Maud his Daughter so that if Francigena and Francus signifie a Frenchman and Anglus and Englishman and if Fidelis does as your Dr. would have it signifie a Tenant in Capite then I think nothing is plainer than that there were for great part of King William's Reign both Earls Barons and Tenants in Capite of English Extraction But to come to particular persons it will appear by the Saxon or English names in Doomesday book as also by several recitals therein that there were divers English
8. p. 580 581. W. All Burroughs that sent Members antiently held in Capite of the King D. 8. p. 557 578. W. They sent such Members by an inherent Right or at the Discretion of the Sheriffs Ib. p. 593. 604. C Cain W. he forfeited his Birth-right by the Murther of his Brother D. 2. p. 67. W. His Eldest Son was a Prince over his Brethren Ib. Canons of 1640. their validity discussed D. 4. p. 284. to 286. King Charles the Firsts pretended Commission to Sir Philim O Neal considered D. 9. p. 636 637. Great Charter of King Iohnâ— W. it was the sole Act of that King or else made by the advice and consent of all the Freemen of England D. 5. p. 324. D. 7. p. 455 456. Great Charter of Hen. the Third W. all the Copies we have now of it were his or else Edward I. his Charters Ib. 461. Children how far and how long bound to be subject to their Parents D. 1. p. 45. to 52. Christians W. as much obliged to suffer for Religion now as in the Primitive Times D. 4â— p. 230. to 234. Chester its County W. the Earl thereof could charge all his Tenants in Parliament without their consent D. 7. p. 501. Church of England W. Passive Obedience be its distinguishing Doctrine from other Churches D. 4. p. 292 293. Cities and Burroughs more numerous in the Saxon times than now D. 6. p. 379. to 400. W. They had any Representatives in Parliament before the 49th of Henry the IIId D. 5. p. 565 572. Whether Cities and Burroughs had not always had Representatives in the Parliaments of Scotland D. 7. p. 505. Clerici terras habentes quae ad Ecclesias non pertinent who they were D. 7. p. 450.451 Clergy a part of the Great Council of the Kingdom in the Saxon Times and long after D. 8. p. 544 to 550. W. None of the Clergy but such as held in Capite appeared at such Councils Ibid. W. The Inferiour Clergy had their Representatives in Parliament different from the Convocation Ib. 546 to 558. Commandment Vth in what sence Princes are comprehended under it D. 2. p. 106. to 109 111. Communitas Regni W. that Phrase in ancient Records and Acts of Parliament does not often signifie the Commons as well before the 49th of Henry the Third as afterwards D. 7. p. 412 to 415. W. That Phrase does not also signifie the whole body of the Kingdom consisting of Peers and Commons D. 6. p. 416. The Drs. proofs to the contrary considered 417 to 423. W. It does also often signifie the Commons alone D. 8. p. 572. to 574. Their Declaration to the Pope in the 48th of Edward the Third D. 8. p. 581 to 582. Their Petition to Henry the Fifth Their Protestation in Parliament in Richard the Seconds time 584. Commons of Cities and great Towns had their Representatives in the Assemblies of Estates of all the Kingdoms in Europe founded by the ancient Germans and Gothes Ibid 607 to 612. Commons their request and consent when first mentioned in Old Statutes D. 5. p. 329. W. Ever summoned to Parliament from the 49th of Hen. the Third to the 18th of Edw. the First D. 7. p. 522. Commons W. part of the Great Council before the Conquest D. 5. p. 369 372. The words Commune de Commune les communes do frequently signifie the Commons before the 49th of Henry the Third D. 6. 423. D. 7. 423 to 484. Common-Council of the whole Kingdom W. different from the Common-Council of Tenants in Capite D. 7. p. 437. to 474. Communitas Scotiae W. it always signified none but Tenants in Capite Ibid. p. 505. to 508. Conquest alone W. it confers a right to a Crown D. 2. p. 128 129. W. It it gives a King a right to all the Lands and Estates of the Conquer'd Kingom D. 3. 168. to 170. W. Any Conquest of this Kingdom was made by King William the First D. 10. p. 715. to the end Constitutions of Clarendon their Title explained D. 6. p. 430 431. Contract Originel W. there were ever any such thing D. 10 p. 695 to 709. D. 12. p. 809 8â—3 Convention W. its voting King James to have abdicaâ—ed the Government be justifiable D. 11. p. 809 to 834. W. Its Declaration of King James's violations of our fundamental Rights be well grounded Ibid. p. 816 832. W. It s voting the Throne vacant can be justified from the ancient constitution of the Government D. 12. p. 839 to 883. W. Whether its placing K. W. and Q. M. on the Throne may be also justified by the said Constitution Ibid. p. 883 to 894. W. It s making an Act excluding all Roman Catholick Princes was legal Ibid. p. 894 to the end Convocation Book drawn up by Bishop Overal its validity examined D. 1. p. 6 8. Copy Holders why they to have no Votes at Elections to Parliament D. 5. p. 513. Great Councils or Convention the only Iudges of Princes Titles upon any dispute about the succession or vacancy of the Throne D. 12. p. 895. D. 13. p. 917. to 919 924. Council of the King in Parliament what it was anciently D. 5. p. 334. Great Council or general Convention of the Estates of the Kingdom W. legal without the Kings Summons D. 5. p. 353. D. 12. p. 894. to 898. Curia Regis what iâ— anciently was and W. it consisted of none but Tenants in Capite Ibid. 368. Crown W. it can by Law be ever forfeited D. 12. p. 833 834. D Defence of a Mans self in what case justifiable D. 3. p. 148 149. Declaration of the Convention setting forth King James's violation of the fundamental rights of the Nation W. justifiable or not D. 11. p. 816. to the end Private Divines their Opiâ—nions about Passive Obedience and Resistance of what Authority D. 4. p. 291 294. W. Many of them have not quitted the ancient Doctrine of the Church of England declaring the Pope to be Antichrist vid. Append. Dispencing Power W. justifiable by Law D. 12. p. 119 to 828. Dissolution of all Government W. it necessarily follows from the Conventions declaration of the vacancy of the Throne D. 12. p. 890 891. Durham W. its Bishop could lay Taxes in Parliament on the whole County Palatine without their consents D. 7. p. 501 502. E Earls of Counties their ancient Office and Institution D. 5 p. 363 to 370. King Edward the Second being deposed W. any vacancy of the Throne followed thereupon D. 12. p. 158 to 861. Queen Elizabeth W. she had any Title to the Crown but by Act of Parliament Ibid. p 872 873. England when first so called D. 5. p. 362. English-Men W. they lost all their Liberties and Estates by the Norman Conquest D. 10. p. 753. to the end English Bishops Earls and Barons W. then all deprived of their Honours and Estates Ib. 756 to 762. English Saxon Laws W. confirmed or abrogated by K. William D. 10. p. 760. Estates of the Kingdom
opulent Cities such as Canterbury Lincoln Exeter c. who were not made Cities by having Bishops Sees annoxt to them but were such long before Christianity was preacht to the English Saxons as I have already proved nor could this Power of the Sheriff extend to the Cinque Ports whose Rights of sending two Barons for each Port was sure very well known and setled in the 49th of Henry the 3d as appears by these general Words at the foot of the Writ similiter mandatum est singulis Portubus pro se without naming them in particular so that if it had not been sufficiently known what Ports were thus to send all the Sea Port Towns in England might have had Precepts sent them as well as the Cinque Ports who had at first their Summons directed to the Barons and Baylifts in general nor is there any Writ found directed to the Warden of the Cinque Ports to Summon each of them to send Burgesses till the 17th of Edward ad as Mr. Prin here shews you so that in all these Elections and Returns being above 20 the Sheriff could have no Power and therefore did not depend upon his good Will and Pleasure alone as this Author would have it But to come to that which Mr. Prin chiefly insists on viz. the putting in and leaving out divers of the smaller Burroughs in so many Kings Reigns and which he attributes wholy to the favour or partiality of the Sheriffs I shall first argue against the improbability of the Notion and then shall Confute it by plain proofs from Mr. Prin himself First It is not at all likely that the King should ever trust the Sheriff with this great Prerogative of making what or as many Burroughs as he pleased in a County Since that could not be then done without some particular Writ or Charter for otherwise this had made the Power of the Sheriffs more Arbitrary than that of the King himself it he had in those Reigns you treat or no other Rule to go by than his own humour passion or interestâ— nor would the King have ever endured such an Innovation since it would have been in the power of the Sheriffâ— to have made as many Burroughs as they pleased and to have encreased the House of Commons to an unreasonable bulk wineh was against all Rules of Policy for him to suffer Lastly Neither would the House of Commons themselves have suffered this Encroachment for since most of the Cities and Burroughs of England sent Members in Parliament before this Innovation of the Sheriffs began they would never have quietâ—â— permitted new Men to be sent in among them from obscure places they never heard of without either turning them out themselves or complaining to the King in Parliament of so great an Abuse M. But what can you say against direct matter of fact has not Mr. Prin here plainly proved to you that the Sheriffs did in those times exercise an Arbitrary Power in this matter returning some Towns out of ill will only to charge them with Electing Burgesses to make them liable to the payment of wages to them omitting others also out of spight as appears by this Petition of the Towns-men of St. Albans you have now cited a great many of which were so long omitted that they came at last to lose all right of sending any more till it came to be again revived of late years as in the Case of divers Burroughs whose names Mr. Prin has here given us who by Orders of the Long Parliament in 1640. again sent Members to Parliament after some Ages intermission Pray now tell me what other satisfactory account can be given for the making of so many new Burroughs and omitting so many old ones but the Arbitrary power of the Sheriffs who then took upon them to do what they pleased in this matter as appears by so many Instances he has here given us F. Well since the improbability I may say impossibility of the thing will not satisfie you I doubt not but to shew you that tho' the Sheriffs might sometimes abuse the trust committed to them in sending Precepts to the Burroughs that were not liable to them yet that for all this they never exercised that Arbitrary Power you fancy of making and unmaking what Burroughs and consequently as many Parliament-men as they pleased Now to prove this from Mr. Prin's own Instances and Authorities I shall reduce all the Causes of this Abuse to these Heads 1. The Favour or Malice of the Sheriffs 2. The Ambition of the Neighbouring Gentlemen who desired to get to be Elected at such Burroughs Or lastly from the desire of those Towns themselves to get this priviledge among them of Electing and Returning Members to Parliament To begin with the first of these it could never proceed from the Favour of Sheriffs to such Towns because the charge of wages to the Burgesses was then so great when two shillings a day was more than ten shillings is now that they could never look upon it as a favour to have this charge imposed upon them unless it were some few who were very large and in a rich and flourishing condition and those always sent Burgesses to Parliament before the Sheriffs had this power committed to them as you supposed by that general Clause in the Writ of sending Summons to the Cities and Burroughs nor could the Sheriffs if they would have long continued to lay this burthen upon any Town out of Malice for if such Towns could not afford this extraordinary Charge of sending Burgesses to Parliament they might have 'scaped it whenever they would either by making no Returns at all to their Precepts sent them as Mr. Prin here shews in the Lists he has given us of Returns very many of them did or else they might have taken that Remedy against it which as this here Author expresly acknowledges divers Towns did who being maliciously charged by the Sheriffs to send Burgesses when both unwilling and unable and who upon their refusal to Elect returned Burgesses for them against their wills whereupon they complained to the King or Parliament of the Abuse and so were eased of this Charge and Trouble or else eased themselves other Burroughs growing very poor and unable to send Burgesses to Parliament and defray their Expences were thereupon discharged by the Sheriffs who made special Returns in their Favour and of these he gives you several Instances in his Collection of Returns for the County of Bucks or else for Poverty as in the Case of Lancaster others procured perpetual or else temporary Exemptions from the King or the King and his Council from sending Burgesses to future Parliaments and upon some one or more of these Precedent grounds they quitted waved or lost their Ancient Priviledge of sending Burgesses which they rather reputed a charge burthen and oppression than an honour and of this he gives as a remarkable Instance in Toriton in Devonshire