Term. Pasc. 7. 8. Jâ—hannis 9. dorso claims against William Scoteny the Capital Messuage which he ought to have in Steinton with the Appurtenances as that which belongs to his elder share of the Barony which was Lambert Scoteny's These surely were Brothers not Sisters Sons being of the same Name and the Claim being immediately from the seizin of Scoteny and this Claim was allowed as the Record shews Besides tho 't is generally believed that Wardship was in use before the Reign of H. 3. And Mr. Sylas Taylor in his History of Gavelkind Hist. of Gavelkind p. 104. thinks he proves it to have been before the supposed Conquest Yet we have good Authority that there was no express Law for this before 4. H. 3. Kâ—ighton fo 2430. Aâ— 1219. 4 H. 3. Magnates Angliae concesserunt Regi Henrico Wardas hoeredum terrarum suarum quod fuit initium multorum malorum in Angliâ The great men of England granted King Henry the Wardships of their Heirs and Lands which was the beginning of many Evils in England 2. We find Custom prevailing beyond what was the foreign Feudal Law at least of some places for which I may instance in Relief paid by the Heir male after the Death of his Ancestors Whereas I find it in Cujacius payable only by the Heir female Cujaâ—iâ—s fo 498. Siquis sine filio Masculo mortuus fuerit reliquerit filiam filia non habeat beneficium patris nisi à domino redimerit If any one dye without Heir male and leaves a Daughter let her not have her Fathers Benefice unless she redeem it of the Lord. That Relief was called Redemption appears by the Law of H. 1. Leges fo 1. cap. 1. Haeres non redimet terram suam sicut faciebat tempore fratris mei sed legitimâ justâ relevatione relevabit eam It seems in King Rufus his time this payment was so unreasonable that 't was a Redemption in a strict sense and a kind of Purchase of the Land but now 't was to be a lawful and just Relief 2. The jus feodale mentioned in the Glossary if it be not the Law generally received where Feuds were must be the Law of England in particular But 't is to be observed that Choppinus knocks this down who tells us that amongst the French Juridica potestas was not imply'd by a Feud Against Petyt p. 31. in margin But our Apollo teacheth us that our ancient Tenures were from Normandy and that was govern'd by the French Feudal Law being of the French King's Feud Wherefore the Juridica Potestas or jus dicere was not here Ex ipso jure feodali nay in the same place the French Feudist tells us Choppinus de Jurisdict Andeg fo 455. Interdum certè Baro Castellanum observat superiorem 'T is certain sometimes a Baron is under a Castellan's Feud And he gives the Reason why it may be so which is that a Feud carries not with it ib. so 450. the Potestas juridica which reason is very apparent in that a Castellan is of a degree lower than a Baron Take Juridica potestas in the same Sense with jus dicere in the Glossary a Baron was to take Laws from his Inferiour Leges H. 1. cap. and to have his Lands taken from him without Forfeiture as it appears by the Law of Hen. 1. that being one of the Judges in the County Court was not upon the Account of Resiance but the having Free land there so it must have been in the great County Court of Cheshire though they had an extraordinary Power there Admit therefore that a Lord of another County were Feudal Tenant to a Commoner there as 't is not to be doubted but he might have been should this Lord have been represented by his Capital Lord there Glos. 2 part Consentire quisque vid. Or admit a Lord there had no Land but what he held of a Commoner as of such an one as Thomas de Furnival Jani Angl. facies nova p. Sed vide the Record more at large who had several very considerable Mannors might Thomas de Furnival represent the Lord in the Lord's House But farther taking the Jus Feodale to be as in force with us unless the positive Law giving so large a Power be shewn 't is a begging the Question for 't is to prove the Right which our wise Antagonist would exclude from the Question as being indisputable I suppose by the Fact whereas the fancied Right is used in his Hotch-potch Glossary to induce us to the belief of the Fact But from what Sourse is this Right deriv'd SECT 5. An Improvement of the Notion of Jus Feodale THat I may make our mighty man of Letters out of Love with his darling Glossaries 2 Part of the Glos. and his own I shall observe to him That according to that for the Credit of which he pawns his own Truth or his Friends All the Lord 's Right of Representing their Tenants in the Great Councils Against Mr. Petyt p. 31. is meerly Feudal ex ipso jure feodali But all Feuds were enjoy'd under several Military Conditions or Services Being then these were the onely Feudal Tenures and yet as appears by Domesday-Book and all manner of Authority there were Freemen who held in free or else in common Socage though the Dr. sayes all the Freemen of the Kingdom were Tenants by Military Service These Socagers were not chargeable by any without their own consent But like men of another Government and it seems he will afford them nothing here they though called were not obliged to come to the Great Council which was the Curia of the King 's Feudal Tenants onely Nay they were never at it And therefore no wonder if the Laws were obsâ—rved by and exacted upon Against Mr. Petyt p. 43. onely the Normans themselves For the others could not be bound and if they consented to any Charge for Defence of the Government it could be onely in what way they pleased to consent either in a Body by themselves or united with the Vassals or else severally at home as a meer Benevolence And there being free and common Socage Tenants before the Norman's Entrance and since continually thus it must alwayes have been CHAP. III. That Domesday-Book to which he appeals manifestly destroyes the Foundation of his Pernicious Principles SECT 1. SInce our Tenures and the manner of holding our Estates Against Mr. Petyt p. 31. in every respect with the Customes incident to those Estates are said to be brought in by the Conquest and not onely most but all free Estates must have been feudal as Knights Service which is made the onely feudal was in the time of William the First the onely free Service ib. p. 39. What I have said of Feuds in the last Chapter doth directly reach the Controversie between us though our Author who has an excellent faculty of overthrowing his own Arguments
ancient Demeasn when they have not been called to great Councils This Author is pleased to say p. 99. It cannot be thought that the King ever wrote to all the Knights and Feudataries of England Pat. 15. Jo. p. 2. M. 2. n. 9. Rex Baronibus militibus omnibus fidelibus totius Angliae These Fideles were the Kings Tenants in Capite Glos. p. 16. to meet in a great Council c. and therefore whatsoever the words of the Writ are the Design of it was to convene such only as had usually in those â—imes been called to great Councils which were the Tenants in Capite though no Barons That is in effect the King never wrote to all the Knights and Feudataâ—ies yet he did for he conven'd his Tenants in Cheif though no Barons 'T is manifest he speaks here only of the King 's Feudal Tenants for he avoids â—he largest and most comprehensive Sense of Fideles which as he informs us there â—nd in his painful and partial Glossary of some half a score words may be taken for Subjects in general and restrains â—t to such as were Tenants in Capite But he says 't is not to be thought that all the Fideles in the restrained Sense had the King's Letters or Writs yet in the same page with an antick Face p. 99. he tells us they the Tenants in Capite though no Barons were all summoned by particular Writs And this he learnedly proves by the irrefragable Authority of King John's Charter p. 100. which gives the Tenants in Capite that were no Barons a general Summonâ— only even as he himself translates the words I 'll appeal to all but him whether he does not only yield the Right which he opposes in the Sense which he puts upon Fideles but gives more than any reasonable man will insist upon for I knowâ— not that it has been urged for more than Free-holders But whereas he tells us That the word Fideles of which there has been so late mention Glos. sometimes is taken 〈◊〉 Subjects in general in another place he gives us to understand that the meaning of this word Fideles as also of these words Liberi homines liberè tenentes c. p. 17. is to be known from the Subject-matter where they are used Wherefore if such Grants were made by these as Feudataries only could not charge then others were Parties thoâ— not in his large Sense That such there were we have the Authority of Braâ—on Jani Angl. facies nova p. 1. as has been before observed tho â—he Dr. thought it not worth his noâ—â—ce Sunt quaedam Communes praestationes â—ae Servitia non dicuntur Bract. lib. 2. c. 16. p. 37. nec de consueâ—dine veniunt nisi cum necessitas interveâ—erit vel cum Rex venerit sicut sunt hiâ—agia corragia carvagia alia plura de â—ecessitae consensu communi totius regâ—i introducta Which are not called Services nor come from Custom but are only in case of Necessity or when the King meets his People as Hidage Corrage and Carvage and many other things brought in by Necessity and by the â—ommon Consent of the whole Kingdom And the Carvage which is one of the â—hings mentioned by Bracton we find â—ranted by the Magnates fideles Rot. Claus. 4. H. 3. m. 2. Conâ—esserunt nobis sui gratiâ communiter omnes â—agnates fideles totius regni nostri doâ—um nobis faciendum scilicet de qualibet caâ—catâ c. duos solidos But farther if I may be so bold he â—ells us by this Law meaning King â—ohn's Charter p. 100. the way and manner of â—ummons to great Councils was setled So that for the future p. 101. the Summons should be by particular Writs to every great Baron and in general to all Tenants in Capiteâ— by Writs directed to the King 's Sheriffâ— and Bayliffs Yet for all this plentiful Concessionâ— that here was a Right setled by Law he had before as much as in him lay over-thrown it and destroyed the wholâ— Foundation of Parliaments by a wisâ— Answer to the Record of 8. Ed. 2. wherâ— St. Albans as holding the Chief pleadâ— it's ancient Right to come to the greaâ— Councils and alledges that the nameâ— of it's Representatives appear in thâ— Rolls of Chancery The Answer per Concilium is Scrutentur rotuli c. de Cancellariâ temporibus Progenitorum Regis Burgenseâ— praedicti solebant venire vel non tunâ— fiat justitia vocatis evocandis si necesse fuâ—rit This I find thus translated Let the Rolls of Chancery be search'd if in the time of the King's Progeniâ—tors Against Mr. Petyt p. 78. the Burgesses aforesaid used to come or not and then let them have Justice in this matter and such aâ— have been called may be called if therâ— be necessity Though I am informed by such as â—nnot but know it to be so Against Jan. c. p. 111. that this mighâ—â— man of Letters has been drudging at â—ecords these sixteen years yet I do not the least wonder at his Ignorance in â—â—em since he laid not a Foundation at â—â—hool by learning Latin as he should â—â—ve done nor has Stepdame Nature â—â—dued him with Sense to understand 1. Can he pretend to Latin and â—t translate Vocatis evocandis such as â—â—ve been called may be called The â—â—st Rudiments would have taught him â—at it signifies They being called that â—â—ght to be called or such Persons and â—hings as ought Parties Papers and â—ecords And if he had look'd into the Parliaâ—ent Rolls of that very Year Rot. Parl. 8. Ed. 2. n. 261. 247. he would â—â—ve found Vocatis vocandis or Vocatis â—i fuerint evocandi which was used it were to prevent all possible Blunâ—rs the usual form of directing Tryâ—s 8 Ed. 2. n. 105. Sometimes 't was Vocatis partibus 〈◊〉 auditis eorum rationibus 2. But can he pretend to Sense â—o shall think that when Justice is to 〈◊〉 done still 't is left to Will and Pleasure with a may be Or that when Right is grounded upon any particulâ—â— Reason or Fact which only is question'd the Right would be in Questionâ— though this very thing were proved How comes the Search to be directed as the only means of deciding it Oh! but 't is si necesse fuerit I take 〈◊〉 this can be no more than that if after the Rolls were search'd farther Tryaâ— or the hearing the Parties Reasons anâ— Enforcements of the Fact were neceâ—sary they should be called To which Sense Records of the same year give full Authority Mandetur Thes. Bar. de Schaccaâ— quod vocatis coram eis Collectoribus infâ—â— inquisita contentis in petitione si necessâ— fuerit plenius veritate Rot. Parl. 8. Ed. 2. n. 204. so n. 241. faciant inde conqueâ— rentibus justitiam But more direct Rot. Parl. 8 Ed. 2. n. 210. Et si necesse fuerit quod Nicholaus
Rich. 2. tells us out of Sprot and others though some would have us think that he took it only out of Sprot He himself tells us that even where he follows Sprot Quaedam superflua à compilatione dicti Thomae resecans quaedam notabilia suis in locis eidem addens ib. he not only cut off many things but added many remarkable Passages Thorne gives us a particular Account of Stigand's raising the men of Kent to â—ight for their old Laws and Liberties Thorne fol. 1786. which many others not being Kentish â—en would not mention lest their Magnanimity should upbraid the sudâ—en yielding of the rest This I take to have been between October and Christmas when he was â—rowned and that having entred into Treaty and concluded on Terms at London which however they tell us that â—e broke he went towards Dover Vt â—llam cum caeteris partibus comitatûs suae â—ubjiceret potestati It seems Dover was then the Strength of Kent and he thought by the getâ—ing of that he should be able to keep all that Country under Upon this Arch-bishop Stigand and Abbot Egelsine and all the great men of Kent perceiving that an ill Fate lay upon the whole Kingdom and that whereas before none of the English were Servants now Nobles as well as Plebeians were brought under the Yoke of Slavery represented to the People assembled together the misery of their Neighbours the Insolence of the Normans and the hardship of a servile Condition and animated them all as one man to a resolution of dying or maintaining their Liberties I know many learned men look upon this part as suspicious taking the Sense to be that there were no Villains in England Sylas Taylor of Gavel p. 167. in Kent especially before that time which they are at pains to shew that there were But I conceive the meaning of the words is no more than that there had ever been in England a Distinction between Free-men and Slaves and therefore that none of the English that is the People of the Land which the Law has ever confin'd to Free-holders they that depend upon the Will of others Villains or Servants being no Cives any part of the Nation in that sense ought to bear that Slavery which the Violence of the Normans threatned to all in common Nor wants there Authority for the Freedom of all the Kentish-men in the largest Extent for in an ancient Roll of the Customs of Kent Lambert's Perambulation of Kent 21 Ed. 1. 't is said to have been allowed in Eire before John of Berwick and his Companions the Justices in Eire in Kent the 21 of King Edward the Son of Henry that is to say that all the Bodies of Kentish men be free as well as the other free-bodies of England Lambert's Perambulation p. 632. And this confess'd to be true 30. Ed. 1. in the Title of Villenage 46 in Fitzherbert where it is holden sufficient for a man to avoid the Subjection of Bondage to say that his Father was born in the Shire of Kent The just value of this Freedom Thorne made all the Free-holders of Kent with all that depended upon them resolve to put a stop to William's Depredations At Swanscomb was their general Randezvouz and their numbers were so great that as the Norman Prince advanc'd he found himself hem'd in with an armed Wood for that they might secure themselves of his making no Escape so confident were they of Victory or forcing their own Terms every man by Agreement took a Bough in his hand to block up the way The Arch-bishop and the Abbot in the name of the rest told him that the whole People of Kent were come out to meet him and to acknowledge him their Leige Lord if they might enjoy their Liberties and Laws otherwise they denounc'd War and bid him Defiance Upon this William calls a Council of War and he finds it expedient to give them their Terms they knowing how he had used those who trusted to his Generosity or Justice took Hostages as well as gave and then in full Assurance of his Performance yielded him their County or the Government of it not all the Land and Property there and as what would secure the Government there to him resigned up the Castle of Dover To this Relation Perambulation of Kent p. 25. the great and faithful Antiquary Mr. Lambart gives sufficient Reputation Mr. Camden says Camden ' s Brit. Ut verè quamvis minùs purè in antiquo libro sit scriptum that no man before Sprot has told these Circumstances but he cites an ancient Authority which was a Plea not oppos'd and which could not be taken from Sprot in which he confesses the Substance of this to be contained and though not elegantly writ yet with Truth So that Mr. Camden is on our side being convinc'd by the truth of his own quotation Dicit Cantii Comitatus quod in Comitatu ipso de jure debet de ejusmodi gravamine esse liber quia dicit quod Comitatus iste ut residuum Angliae nunquam fuit conquestus sed pace facta se reddidit Conquestoris dominatui salvis sibi omnibus libertatibus liberis consuetudinibus primò habitis usitatis The County of Kent says that in that County of right it ought to be free from such a Grievance because it sayes that that County was never conquered like the rest of England But having made a Peace yielded its self to the Conquerour's Dominion saving to themselves all their Liberties and free Customes at first had and from that time us'd It seems in standing up for their own Rights they reflected upon the rest as an humble conquer'd People And indeed whereas it has past into a Maxim Nemo miser nisi comparatus No man's condition is unhappy thought But when into the Scales with happier men he 's brought On the other side men are apt to think their Happiness incompleat without comparing themselves with those whom they look upon as deprived of the Advantages which they enjoy Thus our late Author enhances the value he puts upon himself by the Contempt which he thinks his Adversaries deserve though in truth how low soever they lye he rises no higher but it may be disgraces his Mastership by the comparison But to return to the Men of Kent the generality of which how free soever they were Against Mr. Petyt p. 39. were by his Rule no Freemen of the Kingdom for all the Freemen of the Kingdom were Tenants in Military Service Feudalibus Legibus non 〈…〉 Spel. Glos. tit Gavel kind Which was of the Feudal Law whereas their Gavel-kind was exempt from it I can imagine no other Reason why they above others constantly maintained their old Laws and Customes than that they were a sturdy People more than ordinary tenacious of their Rights and sensible of the least Violation And possibly for a long time they retained the Power of taking Satisfaction upon
he was Leige-man to and received Laws from the French Monarch Though the Crown of England has always been imperial subject to none upon Earth yet he that wore it unless he were so free that he could go with his Land Potuit ire cum terrâ quo voluit whither he would which to be sure is inconsistent with this Feudal Law he could not quit his Dependance SECT 4. The Notion of the Feudal Right considered and the Right of Tenants in free and common Socage to come in theâ—â— own Persons to the great Councils shewn from thence BUT since the mention of Jus feodale as advanc'd in the second part of the Glos. ascribed to Sir H. Spelman occasions a little Consideration of the Feudal Law I out of a Zeal to clear his Reputation from the Charge of things false or frivolous and having at present no other Authority for his being the Author of it than ones who has an excellent Faculty of Storying except against what is there said to be ex ipso jure feodali as none of his 'T is there taken for granted to be the very Right of Feuds deriv'd from the Feudal Law that the Superiour Lord of the Feud should give Law jus dicere to them that are under him and 't is evident this is not meant of an ordinary Jurisdiction because by virtue of this 't is fancy'd that the Lords represented their Tenants in the Extraordinary at the great Councils and by the same reason the Assertion of a Judge censur'd in Parliament is justifiable viz. That the King is the only Representative But I must observe that this must be from Either 1. The general Law which guides the Feuds in all places where Feudal Law is received Or 2. The particular Feudal Law of England 1. Our Author evidently takes this in the first Sense being to prove what was the Feudal Law here New Glos p. 4. he cites the foreign Feudists who acquaint us with the Law of Feuds amongst them but this first Sense is not supposable in that this Law upon that account would be as much the Law of Nations as the Law for the Advantage of Embassadors wherever they come And this could not generally prevail but from the Authority of Catholick Reason that should require it but that I do not find since the Lord may have the Vtile Dominium which the Feudists speak of as incident to Feuds without the despotick Power and the end or nature of them being answer'd from whence will the Argument be brought that it ought to be so I will grant that it is not a Feud unless there be Utile Dominium for that distinguishes it from an Alodium which sometimes may yield no profit to any Superiour But those who well knew the Nature of Feuds teach us that 't was the Infancy of Feuds when they wholly depended on the Lord and could not stand without being supported by his pleasure then indeed which was before Feuds were spread into many Nations cragius de Feudis fol. 20. Nec servientibus aliud jus erat in his proediis quam precarium quod qui habet non tam diu quam ipse vult sed quamdiu is qui concedit patitur eo frui This indeed agrees with that Law which is supposed to have obtained even till the 49 H. 3. Whereas from hence Feudal Tenure advanc'd to an Estate for Life Solet usus fructus constitui in personam tantum Cujacius de feudis Tom. 4. fo 464. and all this before the year 650 from which time to Charles the Great who began to reign in the Year 800 unless one were particularly assigned by the Gift the Lands descended Craglus fol. 21. by right of Inheritance to all the Sons It s state of Maturity was when it descended to one but still there was an Inheritance by the Law of Feuds before the time of William the First and above 450 years before the 49th of H. 3. And I would rather believe Cujacius for the Jus Feodale or the Nature of it than what we find under the Title Parliament in the Glossary Cujacius defines a Feud Cujacius de feudis fo 464. Tom. 4. Jus praedio alieno in perpetuum utendi fruendi quod pro beneficio Dominus dat eâ lege ut qui accipit sibi fidem militiae munus aliudve servitium exhibeat An Usufructuary Right in another's Land which the Lord gives for a Benefice upon condition that the Grantee should be faithful and true to him and perform Military or other Service This is a perpetual Right therefore not to be disposed of by the Lord's Will or the Law which he should give 'T is indeed Vsufructuary because the Lord has the Forfeiture and Escheat according to the Laws setled in any particular place For I take it that in one place they differ'd from another And in Confutation of this Conjecture that ex ipso jure Feodali the Lord jus dicit take this as the general Law of Feuds 't is enough that in any place where the Feudal Law was received 't was otherwise Choppinus de Juridic Andeg Choppinus sayes that amongst the French a Feud implies not juridica potestas nil commune cum juridica potestate Which if as Jurisdiction is often used to signifie a Power inferious to Jus dicere it is but a Judicial Power it follows that the Lord could not have the greater where he had not so much as the less And farther Feuds have in all Countries been guided by the Law of Property their Common Law Thus sayes Cujacius Nos quoque jus feudorum quo Italia utitur sequimur non inviti nisi siqua in re pugnet cum legibus aut moribus nostris We also willingly follow the Law of Feuds which Italy uses unless in any thing it fights with our Laws or Customes And this is to be observed that the end of raising Feuds has often prevailed to introduce a Custome without any express Law and beyond the Foreign Law of Feuds 1. Without express Law and thus to preserve the Head of a Barony that was never to be divided whereas any other part was often so in which the Common Law prevail'd from the end of raising the Feud which requir'd the Preservation of that entire though the other part of the Barony might be divided Bracton and Fleta suppose the Barony to descend to several as well Males as Females Bracton lib. 2. fo 76. Primogenitus vel primogenita habeat electionem propter suam Eisneciam says Bracton Fleta lib. 5. fo 313. whose words only I repeat Let the first born Male or Female have Election by reason of the elder Share And with this agrees a Record in King John's Reign Thomas de Scoteney petit versus Willielm Scoteney Capitale Mesuag quod habere debet in Steinton cum pertinentiis sicut illud quod pertinet ad Eisneciam suam de Baronia quae fuit Lamberti Scoteny Thomas de Scoteny
who have not read this Charter from falling upon this easie way of answering the Doctor 's whole Book and therefore they castrate the Charter and leave out all the provision for the Liberties and free Customs of the several integral parts of the Kingdom as if their imaginary General Council had swallowed up the Liberties and Freedoms of all them who held not of the King Nota A Tenure in Capite is when the Land is not holden of the King as of any Honor Castle or Mannor c. But of the King as of the Crown as of his Crown or in Chief and this some would rather have effected than that the Commons of England should be thought to have had any Right affirm'd by so ancient a Law Spelman's 2 part of the Glossary Tit. Parliamentum and that this was apprehended when the marvellous Discoveries worthy to be inquired into under Title Parliament Bless'd the World may well be gather'd from the printing only as much of that part of the Charter which is now in Debate If but one had an hand in it as in the Publisher's own Judgment he thought would fit his Purpose concealing the rest In that Glossary there is no more than this Spelm. Gloss. Col. 452. Nullum Scutagium vel Auxilium ponam in regno nostro nisi per Commune Concilium Regni nostri 1. Nisi ad corpus nostrum redimendum 2. Ad primogenitum filium nostrum Militem faciendum 3. ad primogenitam filiam nostram semel maritandam ad hoc non fiat nisi rationabile auxilium Nota the Omission here Et ad habendum Commune Consilium Regni de auxiliis assidendis aliter quam in tribus Casibus praedictis et de Scutagiis assidendis summoneri faciemus Archiepiscopos Abbates Comites Majores Barones sigillatim per literas nostras praeterea faciemus summoneri in generali per Vicecomites Ballivos nostros omnes alios qui in Capite tenent de nobis ad certum diem sâ—ilicet ad terminum quadraginta dierum ad minus ad certum locum in omnibus literis submonitionis illius causam summonitionis illius exponemus Et sic factâ summonitione negotium procedat ad diem assignatum secundum Concilium eorum qui praesentes fuerint quamvis non omnes summoniti venerint By the partial citation of this shred or end of the Charter 't is a clear case that Et ad habendum Commune Concilium Regni is there in express words appropriated to Tenants in Capite whatever may have been reserv'd to others in the general provision for all their Liberties and free Customes and the Publisher hath so dexterously and effectually patched the Fragments together that the Reader must be forced according to those curious Appearances to assent to the Publisher and Doctor 's fallacious Assertions that none but the Tenants in Capite made the Commune Concilium Regni the City of London and all other Cities Burroughs Ports and Towns or Parishes whose Rights are there reserved being clearly left out in the Glossary whereas 't will be very difficult to one that reads the whole together not to think that admitting ad habendum Commune Consilium Regni be there appropriated to the Kings Tenants in Chief yet the Aid and Escuage they are impower'd to assess must be such as concern'd them onely A reservation for the Liberties and free Customs of all the parts of the Kingdom following immediately upon mention of the Common Council of the Kingdom which undoubtedly had of Right and Custom a larger Power than barely the granting of Taxes But if Et ad habendum Commune Concilium Regni de auxiliis assidendis aliter quam in tribus casibus praedictis ought to be joyn'd to the Liberties and free Customs of the whole Nation reserved by King John's Charter then that darling Notion of a Parliament of the King's Tenants only no more to be prov'd than that we had Parliaments of Women as well as others falls to the ground Vid. Jan. p. 239. And by the Dr's good favour there was no need of proving that amongst the other Customs of the Cities Burroughs Against Jan. p. 4. c. this of enjoying a Right of being of or constituting the Common Council of the Kingdom was one of them any otherwise than from the express words of the Charter nor could I justly be blam'd for not going first to prove that such were Members before my saying that if they were so before and at the making of the Charter their Right is preserv'd to them by it and is confirm'd by the Charter of H. 3. c. 9. Since in all mens Logick but the Dr's the Argument is to be laid down before it can be made good and the thing to be prov'd here is but the minor of a Syllogism Which Argument being founded upon Fact which the Dr. would have to be the onely Controversie between us p. 1. I may wave for a while and yet there 's no doubt but I prove a Right if I shew that amongst other Liberties and free Customs all parts of the Kingdom here enumerated were by the Words of King John's Charter to enjoy a Right ad habendum Commune Concilium Regni The Dr. agrees So Matth. Paris Against Jan. c. p. 62. that King John's Charter and that which H. 3. granted in the 9th of his Reign were alike in all things Wherefore if I can shew the likeness I hope 't will qualifie and abate our Author 's great Wrath for my proving from thence a provision for a more General Council than one made up of Tenants onely For p. 63. being like 't is not necessary that the Words should be the very same but the Sense and if we are sure by Record that we have the right words we are certain if Records may explain Matthew Paris that the likeness he meant consisted in the Sense Since therefore in the Great Charter granted 9 H. 3. as I find also one in Secundo there is in a Chapter intire by it self The hand-writing of E MS. peues Dom. Petyt as the Lord Cook cites it Scutagium de caetero capiatur sicut capi consuevit tempore H. avi nostri and no other provision is in any part of the Charter made for the Great Council of the Nation than what is contain'd under the Liberties and free Customs of every particular Place and yet this wholly agrees with and expresses the Sense of King John's Et de Scutagiis assidendis must be disjoyned from ad habendum Commune Concilium Regni aliter quam in tribus casibus praedictis And if so then the Tenants in Capite who are under that Division have no express provision there made for their Summons to the Great Council of the Nation but are with others left for that to the antient Law as it was in the time of H. 2. whose Laws both Charters that were in
soever you read it under the Liberties and free Customs will be comprehended their whole Interest in the Legislature whereas otherwise according to this Charter of all their Liberties the King 's Great Council had then only Power to raise Taxes though we find that all along they advis'd de arduis negotiis regni and consented to what passed into a Law Wherefore Against Jan. c. p. 13. ' t is strange there should not have been the same care taken that they might have thier Rights in Council setled as well as their Summons to it but if this Charter setled no other Right than this of granting Taxes Quere What other power the Great Councils have now by our Author's Principles For admit that by the New Government which he says was fram'd and set up in the 49th of Hen. 3. a Right of coming to the Great Council was giv'n to a body of men who before that had none yet there was no additional power given to the Council it self that he or any man can shew Because I would encounter the whole Force which they raise by colour of this Charter I address'd my self chiefly to the proving that admitting that Et ad habendum commune consilium Regni aliter quam ought to be joyn'd as of the same period with de Scutagiis assidendis 't will not make for the purpose of them that urge it being upon strict Inquiry it cannot be thought to extend farther than to such matters as concern'd Tenants in Chief only That this must be thus confin'd is prov'd I. Because there were Majores Barones not excluded by this Charter and so their ancient Right continued tho they are not within the meaning of that part he insists upon for this is only of Tenants in Capite that is such as were subject to the Feudal Law The Earl of Chester for instance was not under it as Earl of Chester Wardship was a necessary Appendix to that Tenure but even the Tenants within that County though holding other Lands of the King by Knights Service were however out of the King's Wardship much more the Count Palatine And surely no body before the Dr. ever took him for a Feudal Tenant by reason of the County of Chester though he might be oblig'd to attend in the Wars and pay Escuage in case of Failure for other Lands held in Chief in other Counties 2. There were others came and upon other occasions than what are here mentioned as Falcatius de Brent who was to come even without forty days notice which was required in the Case here and whereas giving Advice in great Affairs and the making of Laws were transacted in the Great Councils no such thing is mention'd in this 3. We have the Resolution of a whole Parliament the 40th of Ed. 3. That the Common Council of the Kingdom of Tenants in Chief was not the Great Council of the Kingdom for that King John resigned his Crown in the first Council but as they declare not in the last and this the very Circumstances attending the Resignation evince 4. If the opposite Doctrine be true then all the dignified and inferiour Clergy which did not hold in Capite Abbots Priors c. were excluded 5. This must needs be no more than a Common Council of the Kingdom for assessing Escuage and such other Aid as lay upon Tenants in Capite only because Tenants only stood in need of Relief from this Charter they only being concerned in the three things reserved to the King or in the Additions to them none other being charged in that kind without more general Consent and more than Tenants being Parties to the Grant Besides not only the advances upon Tenants Services but the ordinary Incidents were called Auxilia as well as those others which according to Bracton were not called Services nor came from Custom but were only in case of Necessity or when the King met his People as Hydage Corage and Carvage and many other things brought in by the common Consent of the whole Kingdom Now where the King reserves Incidents to Tenure only 't is to be supposed that the Reservation is out of the thing before mentioned and so that must be Services because of Tenure none but Tenants being named whereas when others are named we may well suppose the Aids given by others too to be intended 6. We may here divide the benefit to each sort of Tenant in particular I. As the Tenants by Socage Tenure only were talliable and that us'd to be without their own Consent here they have a Consent given them 2. As Tenants by Knights Service though not talliable yet had hardship in the Obligation to sudden Attendance convenient Notice is given and it should seem that the want of this for the assessing of Escuage was their only grievance proper to be redrest for their Attendance in the Wars was to be govern'd by Necessity and as a Court of Justice there was no need of them 7. There is a Difference to be observed all along between the Great Council and such an one as is mentioned in this Charter I. For the Persons composing the one and the other 2. The matters of which they treated And 3. the times of holding them For the Great Councils by his own way of arguing there was at least one Great Council in the Reign of William the First where were more than Tenants in Chief The Tenants in Chief he supposes to have been only the Normans and Foreigners who were Enemies to the English Laws and the only great men by his Rule wherefore if the English Laws were retained at the Petition of any great body of men here they must be populus Jani Anglorum facies nova p. 55. inferiour People of England This was Ad preces Communitatis Anglorum Universi compatriotae regni petition'd as appears in the very Body of the Laws then received but these as despicable as they were had got together a numerous and mighty Army of which they made Edgar Etheling General these are all called Primates mitius coepit agere cum primatibus regni To shew that 't was matter of Council 't was argued Pro and Con at Berkhamsted Selden ad ead fo 171. where post multas disceptationes after many Disputes the English Laws were setled I need urge no more in this Reign except that which he hath yielded to my hand in effect viz. that all the Free-holders of the several Counties of England met this King in a Great Council at Salisbury For he himself tells us that all the Free-men of the Kingdom held by Knights Service and here were all the Knights so more than Tenants in Capite and all the Free-holders too as they were Knights all holding by Military Service But if there were other Freemen such as held in Free and common Socage qui militare servitium debebant who ow'd Military Service for the defence of the Kingdom though they held not by it why were
Council of the Nation p. 13. 'T is strange there should not have been the same Care taken that they might be summoned as well as the Tenants in Capite Certainly they came not to them by instinct nor is it scarce probable that they would leave their Ploughs and Country Business to travel from one remote part of England to another to these great Councils which seldome continued above three or four days if they had had Right so to do This is as trifling as the rest for if the Common Law took care for their Coming and for their general Summons nor had their Right been denied them there was no need of special Provision by that Charter Upon my seventh Head of the Distinction between the Great Council and the Curia pro more he attacks me very vigorously and having before tax'd me with new modelling the Government wild p. 1. extravagant and confus'd Notions unintelligible Vagaries p. 47. impertinent Rhapsodies p. 32. 41. 53. 62. 63. perverse Interpretations Ignorance and Confidence to say no more monstrous abusing of History cheating and abusing my Readers and wresting Records and Histories with a long Et caetera out comes this gentle Rebuke And indeed as he deals with Sir Henry Spelman's Glossary p. 96. in saying the second part was not his own so doth he shuffle off all Records and Histories which are directly against him by saying the Curia or Great Councils there mention'd were but an ordinary Curia or Council and such as in his own Judgment contain any thing that makes for him The Councils there spoken of are Great and General Councils to be sure 'T is doubtless an hainous thing to call that a Great or General Council which is so in my own Judgment But if I prove and that out of himself too that there came more to the King 's Great Councils than his Tenants in Chief and Officers such as compos'd the Curia held pro more thrice a year surely it lies upon him to shew that at any one Council where more than Tenants were charged Tenants only were present And I affirm that he neither has nor can produce one Authority which upon Examination can signifie any thing And to retort his last Charge as he deals with Sir Henry Spelman in putting upon him his own or his Friends Sense So he doth shuffle over Records which are directly against him and supplants them by History seemingly for him And if the last contain any thing which in his own Judgment makes for him the Council there spoken of is a Great and General Council of Tenants in Chief only to be sure though the Record mention more Our Author says of the Curia which I contend to have been pro more or ordinary If he can make the Court holden coram Rege Consilio before the King and Councel which he hath made his Instance for his ordinary Court and be the same with the Common Council of the Kingdom establish'd by that Charter meaning King John ' s he gains the point but if it cannot be done he may very well blush at his own Confidence to say no more Truely I should rather blush at the want of Sense in that Paragraph if it were mine for I cannot well answer for making the Court and be the same But since he has informed me where the point lies I can easily gain it by proving that the Court holden coram Rege Consilio became the Court of which our Dispute is as it had the same Power whether held by the same persons or at the same times is not material so that it be the Kings Curia or Magnum Concilium as the Court held pro more was In Order to the clearing this he may please to understand that the King's Court had the only Cognizance of the Kings Grants or Charters agreeable to which Bracton lib. 2. cap. 16. p. 34. Bracton says De chartis verò regiis factis regum non debent nec possunt justiciarii nec privatae personae disputare nec etiam si in illâ Dubitatio oriatur possunt eam interpretari et in dubiis et obscuris vel si aliqua dictio duos contineat intellectus Domini Regis erit expectanda interpretatio et voluntas cum ejus sit interpretari cujus est concedere et etiam si omnino sit falsa propter rasuram vel quia fortè signum appositum est adulterinum melius et tutius est quod coram ipso Rege procedatur ad judicium Curia coram Rege Cons. But of the King's Charters and of the Deeds of Kings the Justices or private Persons neither ought nor can dispute nor if any doubt arises therein can they interpret it and in doubtful and obscure things or if any word contain two meanings the King's Interpretation and Will is to be expected since it belongs to him to interpret who made the Grant and also if it be wholly false by reason of Rasure or because perhaps a counterfeit Seal is put to it 't is best and safest that Judgment should be proceeded to before the King himself Here was a 〈…〉 Court for these matters held before the King that is before him and his Council And thus 18 Ed. 1. The Bishop of Carlisle produces the Charter of Richard the First Ryley placita Parl. f. 20. about the Advowson of the Church of Burgh this was before Thomas de Weyland and his Companions Justices of the King's Bench but because they did not do them Right he Petitions that the King would do him Remedy and Grace upon it because none but Kings themselves ought to judge of Kings Charters This is received before the King and his Counsel in Parliament and because there was need of a Certificate to be made in the Case 't is referred to the next Parliament that is when it relates to any Judgment to be given Counsel then to sit But the Business as I find many of the like kind upon the Parliament Rolls was properly brought before the Kings Counsel in Parliament who Jani Anglorum facies nova p. 190. as I before observed succeeded into the places of the Tenants in the Curia and indeed I see not what other Account can be given of the Lords Jurisdiction As this Counsel acted in Parliament with the same Power which the Tenants had exercised before so we find them sometimes acting like the Tenants in the Curia in the Intervals of Parliament as in the 33. of Ed. 1. after the Parliament was dissolved and all sent home Ryley f. 241. f. 256. but the Bishops Earls and Barons Justices and others of the Kings Counsel Several things are transacted coram toto Consilio and Judgments given secundum consuetudinem Curiae Indeed we often find that when Matters of Publick Concern or which as they say concern'd the Treaty came before them they never undertook to determine upon them but left them to the next
Statute of the Great men The Law made à Rege ib. p. 11. Baronibus Populo had the like Legislators and I do affirm Against Mr. Petyt p. 13. that the word Populus is not to be found in any of these Thus I have wonderfully discovered the unsoundness of Mr. Petit's Assertions ib. p. 2. though it will be objected I have jumpt over several Arguments and they material ones concerning Great Councils before the Conquest Upon which it follows that if the Populus were admitted after it must be by the bounty of the Conquerour who might at pleasure revoke his Concessions For the Story of Edwin of Sharnborn b. p. 24. supposed to have enjoyed his Lands by a Prior Title 't is a famous Legend and trite Fable though he had the King's mandat for Recovering his Estate Sir Edward Coke ib. p. 30. who to avoid the evidence that our English Laws were the Norman Laws Against Jan◠c. p. 89. said The Laws of England are Leges non scriptae said it precatiously without any Foundation or Authority Besides 't was ridiculous as if they were known by Revelation divinely cast into the hearts of men Though some may impertinently ask me Whether there were not Laws before Writing and that without Revelation or divinely casting into the hearts of men But that Against Mr. Petyt p. 167. if affirmed is a palpable and gross Error What though that Clergy-man-Lawyer Bracton agree with Coke yet he spoke out of Ignorance or Design when he said Absurdum non erit leges Anglicanas licet non scriptas leges appellare Bracton l. 1. fol. 1. William the Conquerour brought in a New Law Against Mr. Petyt p. 29. and imposed it upon the People The greatest part of the Antient Law as it was brought hither by the Normans was exacted and observed by ib. p. 43. and upon only the Normans For the English they had no Property or Rights left And so were all Outlaws This Domesday-Book in every County shews though 't is said several English-men are there mentioned holding by Titles not derived from the Conquerour p. 176. And for a farther proof of this King William ' s Law to all the Freemen of the whole Kingdom was made only to Tenants in Military Service ib. p. 39. which were French p. 35. Flemings Anjovins Britains Poictovins and People of other Nations When this King in the 4th of his Reign summon'd Anglos Nobiles Sapientes suâ lege eruditos to give an account of their Laws 't was a Sham Summons for no English were Nobles nay none were so much as Free-men but the Foreigners amongst whom William divided the Kingdom and therefore Strangers that had their Estates came in their steads and gave an Account upon Oath of the Laws before their own time as they us'd to do of matter of Fact p. 39. when sworn upon common Juries William the Second and Henry the First were Usurpers and Traitors p. 51. notwithstanding the People's Elections Clerus and Populus are to be understood onely of Tenants in Capite p. 56. never of the inferiour sort of People Wherefore they dote who say that the inferiour Clergy nay the dignified not Tenants in Capite came to Great Councils before 49 H. 3. It 's very true Against Jan. c. p. 70. that in our Ancient Parliament-Rolls the Knights of Shires are sometimes called Grantz des Counties or Great men of the Counties and well they might for without doubt they were most commonly the greatest Tenants in Capite under the degree of Barons in each County Against Mr. Petyt p. 116. 117. And for evidence of this the Great Tenants in Capite that were no Barons and perhaps the least Tenants in Capite in the times of Ed. 3. and Ric. 2. are call'd autres grantz or Grandes autres Nobles which were Barons Peers called by the King 's Writ into the Lords House at pleasure and omitted at pleasure Wherefore 't is to be observed that the Knight for the Shires might well be Noble or Grantz since they were call'd sometimes to sit in the Lords House And whether they that were chose for the Counties and did not sit in the Lords House as Barons Peers were Grantz or Nobles perhaps may be a Question As a choice piece of Learning I must acquaint you that though sometimes Fideles signifie qui in Principis alicujus potestate Glos. p. 15. ditione sunt qui vulgo subjecti appellantur Subjects in general yet unless there be special matter to shew the contrary 't is meant of Uassals who having received Fees are in the Retinue of some Patron or Lord if in the King's Retinue they are Tenants in Capite So when we find Writs directed Omnibus Christi Fidelibus Glos. p. 17. Here when there is no more Subject matter to determine it than when 't is omnibus Fidelibus Regni they must be our Saviour's Tenants in Capite When the Form of Peace Against Mr. Petyt p. 125. in the 48th of H. 3. was by the Assent of the King the Bishops and the whole Community of the Kingdom can any man say the Earls and Great Barons these Tenants in Capite gave not their Consents They must be included in and were a part of the whole Community of the Kingdom And indeed to speak the truth it is not denied against me Against Jani p. 71. but proves their Notion to those Vnwary Readers whom they seduce to have some good opinion of their Fancies Though that Form of peace is said in the Record to be Actum in Parliamento London Against Mr. Petyt p. 208. yet the Prelates and Barons were such as sided with Montfort p. 120. and the Community was the Body of his Army and the Citizens and other of the Faction they were not the Community of the Prelates and Barons onely as at other times Nay here were the Citizens and others besides the Army And yet the Community or Body of the Army took in all besides the Prelates and Barons And this must needs have been the Army Mat. Westm. p. 394. Posted convenientibus Londini Praelatis c. partis illius quae Regem suum tam seditio è tenuit captivatum because 't was after their work was over that the Assembly at London was And the Army it must be though as 't is idely objected it is far from appearing that all the Bishops Earls and Barons which consented had been in Arms. Though they that were of the Faction as is usual caball'd together and as some will say onely resolved upon what they would press the King to they hereby Statuebant c. made Laws before the consent of the King and all the Bishops Earls and Barons and it should seem before all were assembled or could be a Parliament And which such as never intended to understand will make a wondring
required or what was therein contained Upon this Habilo Concâ—â—io mature Advice being taken and that of the great Council for that at least consented â—n not opposing the King sent his Precepts to the Sheriffs throughout the Kingdom to cause an Inquest of twelve Knights or else of twelve lawful men â—hat is Free-holders to be return'd 12 Milites vel legales homines out of every County respectively concernâ—ng the Liberties which were in Engâ—and in the time of King Henry that King's Grand-father The Charter mentioned by our Adversary was 9. H. 3. And so after this Tryal the Precept for which was 〈◊〉 indeed the actual Confirmation of what they found or Judgment upon it was not till two years after â—ut then the Clerus Populus cum Magnatibus where by the way the Populus could not be the Magnates â—he Inferiour Clergy and Laity with the great ones go on upon their former Issue and would give no Supply to the King's Wants till he would grant Petitas Libertates the Liberties they had before sued for or demanded not barely as a Confirmation of King John's Charter M. Par. Supra p. 305. but indeed these very Liberties which they pleaded to have been such in the time of H. 2. The Denial of which occasioned the fighting for them against King John were in Substance no way different from the Grant made by King John in Affirmance of the Common Law And so the Charter of H. 3. was in nullo dissimilis to King John's and if there were any Difference the Clause by which the great Priviledge of Tenants in Capite is argued for being omitted 't is a Sign that admit it constituted them a full Parliament this was not their Right in the time of H. 2. nor return'd so to have been but was the only thing extorted by Force and fell with it This were enough to set aside all his Arguments nay and that Language too which serves instead of them but I cannot deny my Reader and my self the Pleasure of observing him more particularly and if it may be of knowing him intus incute His two main Designs if he be steady to any but to contradict right or wrong are 1. To prove that William the First took away from the English their Estates â—nd as he imposed the Tenures and Manâ—er of holding our Estates in every respect so he did all the Customs incident to those Estates The Customs I thought had been within the Manner but let that go Des Cart. Principiae Phil. p. 17. Per modos planè idem intelligimus quod aliâ—i per attributa vel qualitates c. the Manner implies the Quality as he might have been taught long since â—y Des Cartes this extended to all the Estates derived or come to any now â—nd yet in the very same page 't is but most of them being feudal not all I have already shew'd his Denyal of the Conâ—ueror's Right to take any and thus â—his Mountain is finely brought to Bed by the Dr. 2. As a Consequent upon William's dividing the Land amongst his Followâ—rs he would shew that this King's Grantees and that in Capite by Knights Service were the only Members of the Great Councils Against Mr. Petyt p. 2. and that no others had any Communication in State Affairs unless they were represented by the Tenants iâ— Capite Against Jan. c. p. 12. In another place No doubt but the Tenants in Capite were the General Council of the Nation If therefore he own that there were Councils more general than such as were compos'd of Tenants in Capite only does he not yield the Cause Not to repeat his Concession for Towns incorporate not holding in Capite he yields it for single Persons who still held not by that Tenure In many places he grants As p. 112. That all the Nobility of England met to treat with the King Against Mr. Petyt p. 131. or to the like purpose Farther that the Baronage or Nobility included the Tenants in Capite and sucâ— great men as held of them by Military Tenure So that in effect if the Tenure or as he expresses himself A Tenemenâ— or Possession Glos. p. 10. neither added to or detracted from the Person of any if free oâ— bound according to his Blood or Extraction An ordinary Free-holder in free or common Socage might as well have been provided for as to a Right in coming to Parliament as a Tenant by Knights Service of the King's Tenant in Chief But he tells us then theâ— must be great men holding by these Services But to shew that he insists not upon this finding a vast number of men at the passing of King John's Charter which was Inter Regem liberos homines totius regni Glos. p. 26. he yields that the Retiâ—ue and Tenants in Military Service were Members of the Council though upon second Thoughts he tells me these liberi homines were the same which â—he King calls in his Charter Liberi homines nostri Against Jan. c. p. 9. These Liberi homines nostri were Tenants in Capite So that the Tenants of Tenants in Capite were Tenants in Capite and this suppose explains that Passage where â—e says Against Mr. Petyt p. 176. Whoever held of the Tenants in Capite by mean Tenure in Military Service held of those Barons or Tenants in Capite by the same or like Tenure that themselves held of the King That is every Tenant by Knight's Service of the King's Tenant by Knight's Service held in Knight's Service which â—dentical Proposition I heartily thank â—im for or else every such Tenant of â—he King's Tenant in Capite held of the King in Capite that is immediately and â—ot immediately in the same respect But these Tenants of Subjects such as were Members of the great Council were however concluded by the Acts of their Lords Against Mr. Petyt P. 113. They that held of the Tenants in Capite by Knights Service were bound by their Acts viz. The Acts of the Tenants in Capite that is These Tenants were Members of the great Council and no Members as their Lords represented them and yet did not represent them but they came themselves But to be sure none but Tenants by Knights Service who were Homagers and sworn to obey their Lords as the ordinary Free-holders were to keep the Laws and defend the Monarchy Jurati fratres-franck-pledges and the Peace of the Kingdom were in his Sense bound by the Acts of their Lords So that there was a necessity for the Bull and Multitude of Free-men or small Free-holders Glos. p. 31. to be bound with Sureties to their good Behaviour in such manner as the Law had requir'd amongst themselves otherwise the Government could not secure it self against their Violations of the Laws they neither meeting in the Great Councils nor being bound by the Acts of such as met any more than the Tenants in