acquir'd the Crown by Election these things shew it to have been as factious as those which are condemned But we must have Recourse to the History to know how he became King here England since it had been reduced to a Monarchy by the Conduct and Magnanimity of the great King Alfred found that benefit of being under One Head that before Succession was setled when a King dyed the People voluntarily pitch'd upon some One to whom they might pay their Allegiance and from whom they might expect Protection when a King quitted his mortal Dominion to be Assessor with the Principaâ—ities and Powers in the highest Orb. The Question was not whether they should have a King or no but who should be the man The Confessor through some foolish Vow which was void in it's self having denyed Marriage-rights to his Queen they had none of his Issue to set their Hopes upon and perhaps they were loth to fall again before a Family which they had formerly disobliged and therefore would not think upon Edgar Etheling who was Heir to him that wore the Crown next before the Confessor But that Monarch of their Choice and as 't was believ'd the Elect of Heaven was in such esteem with them that the greatest Worth and the clearest Stream of Royal Blood would have signified little in respect of the Deference they paid to his sanctified Judgment and therefore his Recommendation in such a superstitious Age was to them a kind of Divine Revelation The Norman Prince Abrev. Chron. Rad. de diceto fo 479. Subregulus Haroldus Godwini filius quem Rex ante suum decessum elegerat à t tius Angliae Primatibus ad regale culmen electus William pretended a direct Gift of the Crown from him but there is Authority which tells us That upon his Nomination the chiefâ— men of all England chose Harold Whether this illustrious Son of the great Earl Godwin was design'd by the Confessor or no is left in Dispute but that he arriv'd to his high Trust by a general Election of those who were able to keep under M. S. ex bib Domini Wild defuncti or satisfie the rest is certain and yet an ancient Author calls him Conqueror Heraldus Strenius Dux Conquestor Angliae If Harold has made an absolute Conquest which no man pretends that I find and William had conquer'd him perhaps there would have been a Devolution of a Conquerours Right upon him who subdued Harold but there was only a Competition between these two Princes for that Dignity and Authority which Election had vested in Harold 'T was this that William fought for not for the Lives Liberties and Fortunes of the People And William himself upon his Death-bed being ask'd to whom he would devise his Kingdom makes Answer that he would not pretend to dispose of it and gives this Reason which argues that he thought he had no Right so to do Non enim tantum decus haereditario jure possedi For Comb. Brit. f. 104. I possess'd not this Honour as a Right of Inheritance which here must be meant as what I had an absolute Property in and Disposal of Sed diro inflictu multâ effusione sanguinis humani perjuro Regi Haroldo abstuli interfectis vel fugatis fautoribus ejus dominatui meo subegi But by a direful Conflict and much effusion of humane Blood I took it from perjur'd King Harold and brought it under my Dominion through the Deaths or Flight of his Abettors With this agrees Lex Noricorum in the Confirmation of St. Edwards Laws William the Bastard through God's Permission subduing Harold Regnum Anglorum victoriosè adeptus est Got the Kingdom of England by his Victory but the Victory was over Harold not the whole Kingdom I wonder our Antagonist brought not this to prove that William the Bastard got all the Lands of the Kingdom as he granted all the Lands of whole Counties under the word Comitatus but as 't will appear that the Proceedings of this Prince to his being crowned prove his Election so his Transactions with Harold shew that he laboured only to have that Power which he said Harold maintain'd by Perjury Suppose therefore Harold had not oppos'd and without more Turmoils William had been crown'd had he in this Case been a Conquerour in the Sense contended for And what makes the Difference between his having it of Harold freely or by Force in relation to the whole Kingdom Surely he would never have endeavoured to come in by Treaty to a limited Dominion when with those Advantages that were on his side he might expect by turning â—ut Harold to jump into the absolute Disposal of the whole Land But immediately after St. Edward's Death he sent an Ambassador to demand a Resignation from Harold to which he urged his Obligation by Oath the Gift of his Kinsman the Confessor was likewise pretended But Harold argued for the Invalidity both of his own Oath and the others Bequest because they were Selden's Review of the History of Tithes p. 439. absque generali Senaâ—s populi conventu edicto That â—s no Act of the Common-Council of the Kingdom which Council is represented by this Author under the Form of the Roman Councils at those times when besides the Senator's Votes there was the Jussus populi And this is in other words of the same Import exprest by Matthew Paris Sine Baronagii sui Communi assensu Upon Harold's denying the Normanâ— demand Appeal is made to the Popeâ— and there was one then in the Papal Seâ—â— whose Ambition made him court all occasions of becoming the Vmpire of thâ— Affairs of Christendom Vid. Dr. Stillingfleet's Answer to Cressy's Apol. p. 347. ad 353. and this was thaâ— great Asserter of Clerical Exemptionâ— from the Civil Power Gregory the Seventh The Pope like God himself who by his Prophets often anointed and designed Kings sends one of his Ministring Spirits a Nuncio I take it with a consecrated Banner as an Evidence oâ— Right and an Earnest of Victory and encouraged him to fight the Lord's Battels not expecting that commendable Ingratitude in the religious maintaining those ancient Rights of the Crown oâ— England for which he afterwards upbraided his Royal Son Whether Superstition or the hopes oâ— engaging the Pope's secular Influence and Interest to his side occasion'd William to refer his Pretence of Right to the Pope's Decision I shall not judge but with these Colours of a Title he lands â—n England and some say committed no Acts of Hostility till his Claim was again deny'd by the daring but unhappy Harold who was a man of Spirit fit for Empire and was likely to have kept â—t much longer had not Fortune raised up against him three great Enemies at once his Brother Tosto Norwegian Harold and the aspiring William against whom possibly his arm was weakened with the Reflection upon his own Vow to William to assist him in his ambitious Design and what he
of Summons and deny their Rights in legal Practice tho a Parliament was to be held In fine the Kings of England de facto used to suffer Tenants in Capite to come to their great Councils but the Right is deny'd even them who only had that Permission But Against Jan. c. p. 66. and 67. does he not own the Fact with us expressly in the 48. of H. 3. and yet goeth to set aside the Right by giving an Account of the History and Occasion of it Our Champion not only denies that the Commons had any Share or Votes c. in making of Laws for the Government of the Kingdom c. unless they were represented by the Tenants in Capite but vouches the name of Sir Henry Spelman to prove that 't is of Right Ex ipso jure â—eodali that the Tenants in Capite should represent the rest In this Case â—e may admit us all the Fact of coming to the great Councils and yet the Right would have been against us as long as the Feud remained that is till the twelfth year of his present Majesty when the Feudal-Right as set forth by our Opponent ceast So that not only the Fact within the Compass of our dispute would have been insignificant but no Fact since to this very day could prove any Right the Right of sitting in Parliament having been according to him wholly Feudal if any no Statute giving a new Right to any 〈◊〉 elect as I shall shew since the time when he places in the King's Tenants in Chief by Knights Service all that Right of Elections which was suffered between Subject and Subject Where then is the Right at this day Vid. Pref. in any Commoners to come to Parliament Nay in any Lords upon the Grounds which I have already expos'd But what if in our Dispute about ancient Testimonies we have granted us those very words which we contend for Against Mr. Petyt The Commons c. were not introduced c. before â—â— H. 3. That is not once if the Question be only of Fast. as Evidences oâ— the Fact nay and our own Sense too to be on Record admitting that Right may arise from one Fact well proâ—ed what Question then remains Why then 't is purely of Right Vid. infra fideles and that â—s whether our Delian Apollo has not Right in his floating Island to set up Matthew Paris above Record if it were only for this Reason that he speaks â—ore oracularly and doubtfully than the Records Is it not granted that the Fact is on our side by such Authority as he would advance above Records and that in reâ—ation to his belaboured Conquest when â—e says that the mistaken Notions that â—s those which are contrary to his of the Conqueror's Title Laws and Government Against Mr. Petyt p. 43. were devised by the Monks and Clergy-men-Lawyers Nay is not the Right of Conquest it self as merely such made a Question by himself For he asks whether any man can forfeit that is justly loose his Lands to a Stranger a Conqueror that could not pretend Title but by Violence and Conquest Justly to loose and to forfeit must here be reciprocal to vest a Right in a Conqueror for if the Vanquish'd loose not their Right of Reprisal when 't is in their Power 't is not forfeited and if 't is not forfeited forisfacta made anâ— ther 's by Right 't is not justly lost nay 't is not lost at all only forcibly with held Is it not in effect yielded us that the Commons have ever of Right been Aâ—senters as well as Petitioners and thaâ— from before the 49. of H. 3. For hâ— yields the Word Ever to be in the Parliament Roll nor does he tax the Cleâ—â— with any designing Addition to the Record but which serves not his Turâ— he says Against Mr. Petyt p. 134. 't was ever since they were a third Estate or a Member of Parliament A goodly Discovery that they werâ— a Member ever since they were a Member but do they not plead that they were ever a Member that is immemorially If they had prescribed to this ever since the 49. of H. 3. he might have triumph'd but even in his Sense neither Fact nor Right is controverted because for ought he says here they might ever have been a third Estate And if Burgesses whom though Tenants in Capite I shall take for Commons which to be sure with him had as great if not greater Right than any not so holding could not make that Claim matter of Right in the 8. of E. 2. but at at least it might be overthrown for â—eason of State how came it to pass â—â—at the whole Body of Commons did it â—â—en without Check from the King or â—â—s Council whom he makes very ignoâ—â—nt of the Prerogative or so fearful of â—â—eming to assert it that they durst not â—â—me it though perhaps the Lords â—ere all likely then to have joyned in â—â—e throwing them out and this at a â—â—me when we are told the Commons â—ere little inconsiderable Fellows and â—ore the Lords Livery Coats That more than Tenants in Capite â—ere present at the great Council when King John's Charter was made I do not â—â—nd that he controverts and indeed â—ow can he There having been that â—rmy which was too powerful for their â—nhappy King and the Londoners in great Numbers who I take it used â—o come more contracted but he denies that more than Tenants in Capite were Parties to the Laws whether they were de facto is to be proved by Reason And he urgeth that the Laws were made only to Tenants in chief which indeed would be a Demonstration that none but they were Parties but that moâ—â— were I shall prove under a distinct heâ— of his Contradictions SECT 2. His Contradictions 2. MR. Petyt whom I cannot bâ— call judicious notwithstanâ—ing the Interdict had asserted that tâ—â— Commons such as are now representâ— by Knights Citizens and Burgesseâ— were always of Right an essential paâ—â— of the great Council I joyn my Suffragâ— and for Proof alledge that King John Charter does not constitute the Tenanâ— in Capite the only Members but leavinâ— to all the Villae their Liberties and frâ—â—â— Customs If the Inhabitants even Parishes came to the great Councilâ— without Consideration of this Tenuâ— in Capite their Right was sufficiently secured under the word Villae Now what if all this is oppos'd onlâ— out of a Spirit of Contradiction and ouâ— of the same Spirit he contradicts himself and answers the Character which the inimitable Cowley gave of Envy which begun Davidâ—â— â—nvy at the Praise her self had won â—he Villae I say signifies Towns and â—â—shes too as distinct from the Burâ—â—s to be sure not the Habitations â—â—nants in Chief only whom our Opâ—â—nt argues to have been the only â—â—sentatives of the Commons if they â—any till the 49 of H. 3. But to deâ—â— my Notion of the Villae he cites
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
some of his Favourites who were Pledges for William's Performances Sure I am as far as my Authors can assure me after this Classick Writer has blasted their Credit I will not say with a contagious Breath he promis'd as largely to the rest of the Nation as he did to the People of Kent If the men of Kent had their Representatives at least at the Electing him to Rule over them and were not subjected to him as a Conquerour nor were their Lands parcell'd out by him though we are taught è Cathedra that he took away from the English their Estates and gave them to his Normans So that according to his Reasoning the Flemmings Against Mr. Petyt p. 35. Anjovins Brittains Poictorins and People of other Nations who made up a great part of his Army and came with him under considerable men their Leaders came out of stark love and kindness They though Adventurers with him being content he should gratifie onely his Normans Nay he divided all the Lands of the Kingdom amongst his great Followers even the Lands of those Normans who had Estates here before But if I say the men of Kent enjoyed their Right as abovesaid what Reason beyond what I have assign'd is there to think that it was otherwise with the rest in general some of which were Adventurers with him but all equally sharers in the extent of his Promise to maintain rectam legem Though he and some of his Successors chose Succession as the most honourable Title yet that he had none but Election is evident in that he was not Heir to the Confessor Domesday in Surry Acstede Goda mater Heraldi tenuit IRE In another place there called Soror Regis Edwardi but rather Harold was who was Son to Goda that King's Sister Nor could the Confessor and Harold lawfully set the Crown upon his Head without the Consent of the Kingdom Nor yet could he gain a Title by Conquest over those who vielded upon the Terms of enjoying their Laws and Liberties and who unless those Terms had been granted had both Right and Spirit too to have kept him from Reigning over them Abating the factious conspiring to set him up against Edgar Etheling who though he was not as now the Law is actual King before Coronation yet ought to have been crowned the People had sufficient inducement to chuse William 1. Because he was a Prince of a less Potent Nation and therefore would make an Accession to England and give them footing upon the Continent from whence they might spread the glory of those Arms which were reproach'd with that necessity of Self-defence which makes even Cowards Valiant 2. He was a Prince who had governed his own Country with great Prudence and Moderation Brevis Relatio Willielmi ad finem Syl. Taylor p. 188. nor would attempt upon that acquisition to which many Circumstances invited him without the Consent of his Senate there 3. Harold being dead they knew not any man so likely to defend them from those Enemies which threatned and molested them from abroad or that could better secure them from the Tyranny of many Masters at home and the Distractions which in all probability would arise from their Feuds and Competitions for the Crown which every one that could draw the Mobile 〈◊〉 him would be catching at till it was plac'd and setled Thus I think 't is made evident that William the first his Title was by Election and that the Election according to the infallible Rule was factious since how unanimous soever they might be at the crowning him Feuds and Factions wearied them into the Agreement more than the Force of his Arms but I shall not give him this Author 's obliging Epithetes 'T will be said perhaps if the Election be void then he is let into a Title by Conquest yet how can that be when the very Conquest or rather Acquisition whatever it were was by this means he being received upon Terms Foedus pepigit Besides if there were no Election then the People never yielded were never conquered And there was no more a Conquest of the whole Nation than an Election by the whole The actual yielding of some and tacit Concurrence of others made his Title SECT 3. That he makes a Title to the French King from the Acquisition of his Feudal Tenant the Norman Duke upon his Notion of the Feudal Law BY the Law of Feuds as he receives the Supposititious Sir Henry Spelman for so out of Reverence to his Memory I take leave to call the Second Part of the Glossary till 't is reconcil'd to Truth or till our Author who goes upon the same grounds makes them good Superior quisque Dominus Regulus agit in suos subditos Against Mr. Petyt p. 104. in rebus ad feodum suum pertinentibus ex ipso jure feodali jus dicit Every Superiour Lord Acts like a little King over those that are under him Little it seems for the number of his Subjects not the extent of his Power over them and in things belonging to the Feud gives Law even by the very Feudal Right that is to say is absolute In another place Consentire quisque videtur in personâ Domini sui Capitalis prout bodie per Procuratores Comitatûs vel Burgi 2 Glos. tit part quos in Parliamentis Knights and Burgesses appellamus Every Inferiour seems to consent in the person of his Lord as at this day we do by the Representatives of the County or Burrough which we in our Parliaments call Knights and Burgesses What no Citizens amongst them Truly I should think by the Comparison that a Legislative Power was delegated to the Lords of the Feud as there is it seems to the Representatatives of only the Counties and Burroughs but that it is Ex ipso jure feodali Further our State-Quack has it Glos. p. 7. As all their Estates arose from his Beneficence What if some purchas'd theirs So they depended on his Will Originally That is the Feudal Tenants ib. p. 4. all Vassals held their Lands at the Will of the Lord and whether they were Delinquents or not he might at his Pleasure take them from him When this rigid Law expir'd he does not vouchsafe to inform us however he yields the Substance of all in acknowledging that the superiour Lords gave Law or were absolute and represented or govern'd the Tenants in the Legislature till the 49. H. 3. To assume William was Feudal Tenant to the King of France and according to the Feudal Law long after his time King John was summoned to the French Court to answer for the Death of Arthur of Britain who was another Feudatory to the French King William himself was not only subject to the Feudal Law but thereby was as much under his Superiour Lords despotick Power in relation to what he got as the most inferiour Tenant William depended upon that King's Will his Dominion was forfeitable without any default
would have the Discourse about these ib. nay and the Conquest it self to be out of the Question and then pray what is the Question It cannot be whether Tenants in Capite represented p. 2. or by their Votes concluded all that held by any other Tenure Nay whether these and their Tenants could do it because this Tenure and manner of holding Estates came in with the Conquerour I hope I shall not seem tedious though I am long upon this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of a Conquest that Corner-stone on which if he knows what he do's which I cannot but doubt of sometimes he Erects a fanciful Scheme of Government And thus the lofty Fabrick rises one Story upon another William having made an actual Conquest Against Mr. Petyt thereby had the absolute Disposal of all the Lands of the Kingdom p. 35. and did p. 176. according to his lawful Power give all away to his Followers who though French p. 35. Flemmings Anjovins Britains Poictovins were all metamorphos'd into Normans p. 43. upon whom onely the Feudal Law was executed and observed The King's Grantees though ordinarily a Tenement or Possession neither added to Glos. p. 10. or detracted from the Person of any man if free or bound according to his Blood or Extraction might well be all the Free-men of the Kingdom because the Conquest had made all the English Slaves and the King granted onely to his Great Followers which were Free before But when these Grantees granted out to others p. 176. the Subfeudataries made part of the Freemen of the Kingdom as holding by Knights Service these were the men ib. p. 39. the onely Legal men that named and chose Juries and served on Juries themselves Carta H. 1. both in the County and Hundred Courts Barones Comitat. qui liberas habent terras in which Courts they were the onely Suitors Alas no body else had any free Lands in the Counties Therefore p. 42. these must have been the men that at first Elected two Knights in every County out of their own number and onely they were Electors when first the Body of them began to be represented And unless others are impower'd by the 8th of H. 6. c. 7. which restrains the numerous Electors to Free-holders of 40 s. per ann As the Tenants in Capite came before the 49th in their own Persons and represented the Body of the Commons of England and when first the Body of them that is the Tenants in Capite began to be represented they onely as was proper chose their own Representatives so it ought to be at this day And thus the Tenants in Capite that is they alone and yet they and their Tenants by Knights Service have ever been and still ought to be the onely Members of the Great Council I know he will venture hard but he will make all this good in his next if he can there being a narrow Interest in some for which they would sacrifice the Publick But I shall think our Government will have been finely brought to Bed by his Midwifry when such a monstrous brat is own'd by it Vid. Letter to the Earl of S. But if King William the Master-builder refus'd what this Author would make the Head of the Corner and was not so absolute a Conquerour as to leave the English neither Estates nor Fortunes Against Mr. P. p. 43. ib. p. 179. what becomes of his Airy Ambuscade He has the Confidence to refer to Dooms-day Book in every County for this Fiction and that will satisfie a man wilfully blind p. 176. that William the Conquerour divided all the Land in England amongst his great Followers Now what if I shew out of himself and this book of Judgments concerning Lands and Services that he divided very little of the Lands in England to his Followers to be sure that he was far from distributing all Our Author spared the particular Proof I 'll warrant it to make us believe it would require a Transcript of the whole Book but I think I shall impose upon no body by affirming without transcribing the greatest part of it that even where Lands were enjoyed by other Owners than such as held them in the time of King Edward and upon other Titles yet the Lands continued for the most part to hold in the same Manner as before Whereas William according to him brought in a new Manner and none were so much as Free-men who held not by Knights Service which he setled over all jure haereditario We generally shall find that there was no change of the Manner or Quality of the Service but only of the Quantity Tunc geldavit modo geldat for so much either more or less according to the Improvement or Fall of the Land and frequently that which before paid for a certain number of Hides paid nothing at the making of the Survey The Rent I conceive was in proportion to the value of the Land that being seldom named but only how many Hides Acres Roods c. there were and these Tenants seem to have held in free or common Socage Sometimes they were such as potuerunt ire cum terrâ quo voluerunt which I doubt not Doomsday Ties Taiâ—i tenuerunt non potuerunt ire quolibet uâ— flet tenuiâ— de Tofti sed non fuit alodiâ—m were the Alodiarii sometimes they were not so free but held by Villain Services though themselves were free and these were Tenants in common Socage Sometimes Milites are named but rarely so that 't is certain he can have but small Assistance from Dooms-day book and being there sometimes descent sometimes purchase and now and then the King's Grant is mentioned who can tell by that whether generally the Lands were enjoyed by the one or the other Title since especially 't is most usual only to name the Persons that held formerly who did then and by what Services I take it there are as many and as often English names there as others and though the 〈…〉 of names different from the former 〈◊〉 Vid. Caâ—den's Remains of Sir names from p. 136. to p. 141. that the Christian 〈…〉 which 〈…〉 from their Fathers are more us'd there than Sir-names But I thank him he has given me an easie Task to shew that in spite of his Conjecture this great Survey demonstrates that there were Proprietors of English-men who held Free-lands upon Titles paramount to what he insists upon If notwithstanding our Author's Quotation out of Tilburiensis But they should not claim any thing from the time the Nation was conquer'd under the Title of Succession or Descent Tilburiensis an Officer of the Exchequer who was for bringing Grist to the Mill I produce a List of Free-holders who enjoyed their Lands of the Seizin of their Ancestors Against Mr. P. their own p. 34. or theirs of whom they purchas'd Against Jan. c. p. 1. from before the counterfeit
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
Confessor whereas on the other side were Villeins vilis plebs and praepositi Bailiffs all which may be Normans if he please Farther when ten Tithings of Freâ—pledges made an Hundred to suppose that these were not Hundredors legal men there Glos. p. 31. but the Knights who were not bound with Sureties to their good Behaviours is as silly as to say two times two do's not make four 2. His Notion is dangerous and that according to that Improvement of it for the sake of which 't was broach'd But of these Tenants in Capite Against Jani c. p. 13. ' t is highly probable if not without doubt that the two Knights were at first chosen by the other Tenants in Capite in every County to represent them And the Reason given for this is That the Elections were to be made in the County Court by the Suitors Against Mr. Petyt p. 42. and this he imagines to have continued in such Tenants till the 8th of H. 6. c. 7. by which any man that had 40 s. per annum 8 H. 6. c. 7. of any Tenure was permitted to be an Elector Whereas to any one but him 't will be obvious upon reading the Statute that it is restrictive of that Power which before was in men of lesser Estates but is very far from giving any new power Whereas the Elections of Knights of Shires to come to the Parliaments of our Lord the King in many Counties of thâ— Realm of England have now of late been made by very great and outragious and excessive number of People dwelling within the same Counties of the Realm of England of the which most part was of People of small Substance and of no value whereof every of them pretended a Voice equivalent as to such Elections to be made with the most worthy Knights and Esquires within the same Counties whereby Manslaughter Riots Batteries and Divisions among the Gentlemen and other people of the same Counties shall very likely rise and be therefore 't is provided that the Choice shall be in every County by People dwelling and resident in the same Counties whereof every one of them shall have Land or Tenement to the value of 40 s. by Year above all Charges c. Here is manifestly an Exclusion of some former Electors but no new ones created wherefore the unforc'd Consequence is that all Lands being now held in Free or common Socage and there being no time for Prescription or any new Law impowring such to chuse their Representatives this great Preservative of the Rights and Liberties of the Subject is defunct and I dare say 't is neither within his Art or his Will to recover it Yet though he would smother it I doubt not to find it alive amongst his Nobles for whatsoever made a man Noble Against Jan. c. p. 91. secured this Priviledge to him But Ingenuity made a man noble therefore every Ingenuus was always of Right an Elector for the Great Councils or present at them That Ingenuus and liber homo were the same I take it is evident from Bracton Bracton lib. 1. c. 10. who makes the 〈◊〉 Division of persons to be into the Liberi Freemen or else Servants of such as are sui juris who have that Liberty ib. cap. 5. p. 4. which he says is of the Law of Nature or such as are under others whose Liberty is obfuscata darkened or beclouded by the Law of Nations These are but different Expressions of the same thing ib. under the first are the Nobles in a strict sense as of an higher Order such were the Majores Barones and the Ingenui sive Liberi nay the Libertini too Bracton such as were manumitted and restored to their natural Liberty under the other were Servants Villains or others The learned Cluverius in his Description of Germany Cluver Germ. Antiq f. 121. cap. 15. Nobilium Ingenuorum Libertorum cui admixtus Libertinâ—rum from whence we derived our Distinctions makes three Orders under the first Division But all Free-men of either Order were Ingenui with Bracton who takes no difference here And if we believe our Author 's ipse dixit all ingenui were Nobles Quod erat demonstrandum 'T will be hard if amongst these Ingenui Against Jani c. p. 42. we do find prodes homes too but our Author has seen it written prudes homes though he cannot call to mind the Record And truly we have no great Reason to trust his Memory since 't is so treacherous to expose him by frequent and palpable Contradictions Well Prudes homes they were Ay that they were that came to the Great Councils such as were the Wits in the Saxon Gemotes but if to the Folkmote there came to be sure all the Frank-pledges then they were Noble Wits and so vous avez Against Petyt p. 21. the liberi homines prodes homes prudes homes and Wites or Sapientes But upon second Thoughts the Communitas populi were the Community of the Barons only Against Petyt p. 129. together with the Alios the Milites who held by Military Service of the great Barons and the lesser Tenants in Capite And for this there is Demonstration Ib. p. 56. in that the Meaning of Populus iâ— to be taken as contradistinct from Clarus and then it signifies no more thaâ— Laity it doth not denote a distinct State or Order amongst secular men or Laies but an Order and State of men Ib. p. 57. distinct from the Ecclesiasticks or the Clergy This by no means is meant of the inferiour sort of People But good Mr. Interpreter if Clerus signifies inferiour Clergy as well as the Superiour nay is most commonly appropriated to the inferiour what becomes of your profound Observation and of all your Presidents And how comes it to pass that even the poor Mass Priests were anciently called Mass Thegnes Possibly no man has a better Faculty than this Gentleman of facing out clear Proof which he often brings against himself An. 1244. 28 H. 3. Against Mr. Petyt p. 162. Thus he tells us The great men of the whole Kingdom the Arch-bishops Abbots Priors Earls and Barons were called together in which Council the King by his own Mouth in the Presence of the great men in the Refectory at Westminster desired a pecuniary Aid to whom it was answered that they would treat about that matter And the great men retiring out of the Refectory the Arch-bishops Bishops Abbots and Priors met and treated by themselves At length the Earls and Barons were asked The Dr. omits engliâ—â—â—ng ex parte eorum either not understanding it or because it manifestly destroys his Whimsey p. 17. if they would unanimously consent to the Resolutions they had taken in answering and making provision for what had been demanded of them Who answered that without the Common Vniversity Communâ— universitate rather the University of the Commons they would do nothing
at the Community was the Body of Montfort ' s Army Against Jan. c. p. 26. and the Citizens and others of the Faction Against Mr. Petyt p. 125. yet here at this very time and place the Community of the Kingdom of England must needs be the Community of the Barons and Great men Tenants in Capite by Military Service and no other Not onely because here was the Body of the Army and Citizens and others of the Faction but because as is clear from an impregnable instance viz. of the same kind of Council which sent the Letter to the Pope in the Case of Adomar or Aymar de Valentia besides the Earls p. 126. 127. Noblemen or Barons Great men there were the Tenants by Military Service that held of and attended the Barons and Great men and when the King said that though He and the Great men should be willing that Adomar who withdrew himself out of the Kingdom should return tamen Communitas ipsius which is the Community not his would not suffer his coming into England the Great men were the Kings Friends p. 121. the Community his Enemies So that here are two Armies the Great men the King's Friends on one side and the Community his Enemies on the other which is just such another Council as that in the 48th yet without doubt none of the King's Party or Friends were there Rot. Parl. 42 H. 3. m. 3. n. 9. Though in the Articuli Cleri 9 Ed. 2. about fifty years after we find Petitions presented by the Clergy temporibus progenitorum nostrorum quâ—ndam Regum Angliae in diversis Against Mr. Petyt p. 121. Parliamentis Which includes the time of H. 3. Grandfather to Edw. 2. At least this was meant of several Armies and so was the Parliamentum Oxon. Against Mr. Petyt p. 192. but six years before the Military Parliament of the 48th an Army being a Parliament in the sense and general use of the word at that time ib. p. 183. that is a great Assembly Convention or Meeting of the Faction and their Army And thus in the 30th of this King the Parliament is call'd the Vniversity of the Militia that is of them Qui militare servitium debebant the Milites Fideles It seems in many of these Parliaments or Armies chuse you whether the Clergy in their Canonical Habits address'd themselves to the Military men upon which sort of Parliaments they could not fail of prevailing with their brutum fulmen of Excommunication and Ecclesiastical Scare-crows What Against Mr. Petyt p. 135. is Petyt so ridiculous to have the Commons an essential part of the Parliament from Eternity 'T is plain that the Commons began by Rebellion Nota. To lessen their own power because their Constitution was not forc'd by the Barons with their Swords in their hands or promis'd to them then Ib. p. 226. but began from the King's pleasure when the Rebellion was over and the King was restored to his Regality Post magnas perturbationes enormes vexationes inter ipsum Regem Simonem de Monteforti alios Barones motas sopitas And none but Tenants in Capite were Barons before Ad summum honorem pervenit ex quo c. because then and not before the word Baro became a word of greater Honour Against Mr. Petyt p. 226. that is appropriated to Tenants in Capite or their Peers So that before 't was so appropriated more were Barons What though in the Letter to the Pope Jani c. p. 244. the Nobiles portuum maris habitatores necnon Clerus Populus Universus Against Mr. Petyt p. 157. are named yet these troup of words were only to make an Impression upon the Pope who good man knew nothing of the English Constitution or what was done here but would think all they were assembled in such a Great Council as other Parts of Christendom then had I shall not scruple to discover some mysteries to you The Liberi Homines were Tenants in Capite or at least their Retinue and Tenants in Military Service Glos. p. 26. which were with them at Runnemede These liberi homines or Free-men were the onely men of Honour Faith Trust and Reputation in the Kingdom These were the Free-men which made such a cry for their Liberties ib. p. 27. as appears by Magna Charta most of which is onely an abatement of the Rigour and a Relaxation of the feudal Tenures Nay Against Mr. Petyt p. 39. 't is to them these Free-men onely that the Grants were made They that are there mention'd holding of the King in Fee Farm Vide King John ' s Charter petit Serjeanty free or common Socage and Burgage held not so Jan. p. 181. But they all held by Knights Service and so were the King's Barons Of these Barons some might be Villains for that a Tenement or Possession neither added to Glos. p. 10. or detracted from the Person of any man if free or bond according to his Blood or Extraction ib. p. 30. Nay the Freemen or Tayns Theyns were anciently no part of the Kingdom for that was all divided into Frank-pledges of which there was to be a general view in the Sheriff's Tourn but these Frank-pledges were all pitiful Fellows bound with Sureties to their good behaviours ib. p. 31. which the Theyns were not .. Which answer his quotation out of Briton Glos. p. 31. In after times some might have had particular Charters of Exemption or else generally such of them as grew to be Great men were excused Whereas Mr. Petyt contends Against Mr. Petyt p. 177. that the liberè tenentes de Regno came to the Great Councils 't is a giddy Notion Whoever heard of Tenure of the Kingdom Though indeed we find in Domesday Book that such an one holds de Comitatu But more directly to the point Herefordshire Castellum de Cliford Such a Castle est de Regno Angliae non subjacet alicui Hundredo neque est in consueâ—â—dine ulla And I 'll warrant it he with his designing Interpretations Against Mr. Petyt p. 1. will render it That this held not of the Kingdom but that it was of it or in it and so were the Free Tenants But to load this Opinion according to the literal meaning of the words Omnes de Regno p. 187. which sometimes occur all Copy-bolders all Tradesmen all Bondmen and Villains and all Servants were Members of Parliament Yet there having been no Representatives before 49 H. 3. all the Inhabitants of Cities Burroughs holding in Capite or Chief and several Towns Corporate not holding in Chief came to the great Councils in their own Persons which some will say made a greater Body than the Inferiour Proprietors and the Representatives of these Places and were Persons of as mean condition For the Lords themselves they have no better Against Mr.