Caligula's Guards if he had gone about to put his wicked Wish into Execution or likewise to have resisted or put to death those Incendiaries they found firing the City tho' they might have had the Emperour Nero's Commission for it So likewise sure it would have been as lawful for the People of Pegu to have resisted those whom the Emperour might have sent to hinder them from Ploughing and Sowing their Lands And that I am not the only Man of this Opinion I desire you to consult what Barclay hath in his Treatise contra Monarchomachos which he writ against Buchanan de Iure Regni apud Scotos and the Author of Vindiciae contra Tyrannos where tho'he be a most Zealous assertor of the unlimited and irresistible Power of Princeâ— Yet in his third Book chap. 8. he speaketh to this effect the sense of whose words as near as I can I will give you in English Now if any one should say But must the People always yield their Throats to the Fury and Cruelty of Tyranty â— Must they patiently permit their Cities to be destroyed by Hunger Fâ—e or Sword and their Wives and Children to be exposed to the lust of a Tyrant and also themselves to be brought into the utmost dangers and Miseries of Life Must that be denyed to them which is the Right of all Animals by Nature that is that they may repel force with force and defend themselves from Injury To this it may easily be answered that Self-defence which is of Natural Right ought not to be denyed to the People And therefore if the King doth not only exert his hatred against some Single persons but also shall go about to destroy the body of the Common-Wealth of which he is Head that is shall exert his Hatred against the whole People or some considerable part of them by an horrid and intolerable Cruelty or Tyranny There is a Power in the People in this Case only of Defending it self but not of Invading the Prince or of Revenging the Injury given neither of departing from their due Reverence because of the Injury received in short it hath Right only of repelling a Present force but not of revenging a past injury for one of them indeed is from Nature that we should defend our lives and Persons from injury and therefore the People may be able to prevent an Evil before it be done but cannot revenge it upon the King after it is done Therefore the People hath this Right more than a Private Man that he hath no other Remedy left him but Patâ—ence Whereas the People if the Tyranny be intolerable may still resist tho' with Respect In all which this Author hath there said we may easily understand his meaning unless it be in this of resisting force with Respect and Reverence For I cannot understand how a Man may sight against his Prince with Reverence or give his Guard a Knock over the Paâ—e or a Cut in the Face with Respect to the Prince's Authority But the reason is plain why the people may act thus because when a Prince once Goeth about to destroy and make War upon his People he doth not act then as a Monarch but like a Cut-throat and Enemy to the Common-Wealth And no man can imagine a Will to destroy and to protect the people can at once subsist in the same Person M. But pray give me leave to interrupt you a little I grant indeed that by the Political Laws of any Government which are made to Secure the Rights of the Subjects in their Lives and Fortunes No Prince can or ought to take away his Subjects Lives or Esâ—ates contrary to Law Yet by the IMPERIAL LAWS in every Government and by the Laws of the Gospel which As I shall hereafter shew establish those Laws in all perfect Governments and particularly in the English all these Rights Legally belong to the civil Soveraign especially to be accountable to none but God to have the Sole Power and disposal of the Sword and to be free from all Coercive and Vindicative Power and from all Resistance by force It is by these Common Laws of Soveraignty that the Gospel requires Passive Obedience which is but another name for Non-Resistance these Laws are in eternal force against the Subjects in defence of the Soveraign be he Good or Evil Just or Unjust Christian or Pagan be he what he will no Subjectâ— or number of Subjects whatsoever can lift up his or their hands against the Soveraign and be Guiltless by these Laws Therefore for the Subjects to bear the Sword against their Soveraign or to defend themselves by force against him or his Forces is against the Common Laws of Soveraignty and by consequence Passive Obedience even unto Death becomes a duty in Soveraign Governments by vertue of those Laws and we are not to resist them upon any pretence whatsoever but therefore all Subjects are bound to Suffer Death wrongfully rather than to resist them upon any pretence or account whatsoever So that let Popish Writers though never so moderate say what they please concerning the Lawfulness of Resistance in some Cases Yet We of the Church of England have learned better things from the Scripture and the Examples of the Primitive Christians which we think our selves obliged most strictly to observe And therefore in relation to our own Government and the present State of Affairs I shall reduce all that I have to say against Resistance of the King or those commissioned by him into this Syllogisme Not to be resisted by the Subjects is an Inseparable Right of all Soveraign Power But the King is here the only Soveraign Power Ergo the King is upon no pretence whatsoever to be resisted by his Subjects So that not to quarrel any longer about words Non-resistance is the same thing with Passive Obedience and Submission and by consequence these are required by the IMPERIAL LAWS of the Government Therefore Whatsoever the Imperial Laws of the Government require of its Subjects if it be not contrary to God's Laws they are bound to perform it But Passive Obedience or Patient Suffering of Injuries from the Soveraign is not forbid by God's Laws And therefore Subjects are bound to perform it where it is required by the Imperial Laws F. I Shall forbear to say any thing as yet concerning what Doctrines the Scriptures teach or the Primitive Christians practised concerning this matter because I desire to discourse that Question apart from this of the Laws of Nature or Reason which We are now upon Therefore I must tell you that tho' this new Fingle-fangle Term of Imperial Law of Non-resistance may sound very prettily to their Ears who mind words more than sense Yet I must freely confess that I am altogether a Stranger to this Notion of Imperial Laws as also of the distinction you make between the Imperial and Political Laws of this Kingdom and if by Imperial Laws you mean those of the Roman Empire I never knew that
those Laws had any thing to do in England before but always supposed the Politick Laws of our Country to be the only measure of the King's Prerogative as also of the Subject's Obedience and Subjection Nor do your own Civil Laws by as much as I know of them make any difference between the Imperial and Political Laws of the Empire for by the one as well as the Other the Civilians understand such Laws or Ediâ—ts of the Emperours which with the Approbation of the Senate were made for the Peace and Well government of the Common-Wealth but I never yet heard of any Imperial Laws whereby the Emperour declared that he had a Right to plunder or murder all the Citizens of Rome or that they believed they were obliged to Suffer by your Imperial Laws without any Resistance I am sure the Senate and People did not believe that the Emperour had any such Authority when they declared Nero and Maximin for their intolerable Cruelty not only Enemies of the Common-Wealth but of Mankind But if by these Imperial Laws of Non-resistance you mean no more than what you laid down in your Syllogism That it is an inseparable Right or Prerogative of Soveraign Powers not to be resisted by their Subjects when you have proved this Proposition by the Laws of Nature and Reason I shall then believe it But as for your Conclusion it being founded upon these Premises it needs no Confutation for if the Imperial Laws of Government do not require your Passive Obedience then Subjects are not bound to perform it And to shew you the Falseness and absurdity of this Assertion that Whatsoever the Imperial Laws of any Government require of its Subjects if it be not contrary to God's Laws they are bound to perform it In stead of Passive Obedience or Patient Suffering of Injuries let us insert to give up to the Soveraign all our Civil Properties and Estates if demanded by him is not forbid by God's Laws and therefore Subjects are bound to perform it when ever it is required by the Imperial Laws For certainly the absolute disposal of the Estates of the Subjects is as unseparable a Prerogative of Soveraign Power as Irresistibility it self as I think I am able to prove if you think fit to dispute that Question But at present I shall only confine my self to confute the Major in your Syllogism In the first place therefore tho' I do grant what you lay down for a Ground to be true That it belongs to Soveraign Powers to be accountable to or punishable by none but God Yet I suppose Resistance of their Violence and Tyranny may very well be perform'd by the People without calling them to a Iudicial Account or erecting a Tribunal for that purpose Calling to an Account and Punishment are acts of Authority of Superiours over Inferiours But Resistance for self-defence is a Right of Nature and which no Man by entering into Civil Government ever parted withal but out of Consideration of a Greater Good to be obtained thereby viz. his own greater Security together with the Common Good of that Civil Society whereof he is a Member which when by the Prince's violence it is once like to be wholly lost his Natural Right of Self-defence for the Preservation of himself and Family again takes place Nor doth he then resist the Supreme Powers as such but as Murderers and Cut-throats who by going about to destroy the People have already loft all that Right they formerly had And of this opinion is that moderate Romish Author Barclay before cited Who in the 16 Chap. of the Book last quoted hath this Remarkable passage What then Can there no Cases happen in which it may be lawful for the People by their own Authority to rise up and resist a King governing Tyrannically His Answer to this Question is there are certainly none as long as he continues King for the Scriptures forbid it which say Honour the King and he who resisteth the Power resisteth the Ordinance of God Therefore the People can have no Power against him unless he committeth something by which he may cease to be King for then he himself abdicates his Kingship and becomes a private Man and by this means the People being made Free that Right returns to them which they had before the King was made But there are but few Facts of that Nature which can produce Such effects And I cannot when I think of it find more than two Cases in which a King doth ipso facto make himself no King and thereby depriveth himself of all Honour Regal Dignity and Power which also Winzerus takes notice of One of these is if he destroys his Kingdom and then gives us the Examples of Nero and Caligula as I have already done And next proceeds to this purpose that when any King designs and doth seriously endeavour to put this in practice he casts off all care and desire of Governing And therefore thereby loses his Empire over his Subjects as a Lord of a Servant loses his Dominion over him by giving up all Care and Government of him And of this Opinion likewise are Grotius and Pâ—ffendorf the two best and most learned Writers on this Subject Who do not think it inconsistent with the Rules of the Gospel for Subjects to resist the King if with a Hostile mind He seeks the Destruction of his People for says the former the Will of commanding and destroying cannot consist together And therefore he who professes himself an Enemy of the whole People does thereby abdicate the Kingdom but that can Scarce seem to happen in a King in his right Witts and who commands only one Kingdom But if he commands more Kingdoms it may so happen that he would destroy the People of one Nation to gratifie the other that he may there make Colonies of them And this I suppose Grotius spoke in relation to the King of Spain who they say had declared that if he overcame the Dutch then in Arms against him he would fell the People for Slaves into America and people the Country with Spaniards M. You very much mistake me if you think by Imperial I meant the Roman Laws but only the Common Laws of Soveraignty which tho' they destroy no Man's Natural or Civil Rights Yet both grant and confirm unto the Legal Soveraign in every Government the Essential Rights of Soveraignty of which I take Non-resistance not only for Wrath but Conscience lake to be one of the Chief And therefore it were much better to venture the utmost that a Tyrant can do towards his People by destroying them than to give the least inlet to Rebellion by Supposing the People may in any case whatsoever resist their Prince For granting the worst that may happen that a Prince once in 1000 years to be so wicked and Malicious as to go about to destroy his People yet he could scarce find means and hands enough to bring it about and admit he should destroy by
the Aldermen or Burgesses of Towns Represent those which we now call the Commons And supposing that then there were no Knights of Shires yet these being then the only Proprietors of any considerable Estates of Land in the Nation might very well represent all their Vâ—ssals or Vnder-Tenents as Tenents for years and at Will are at this day by the Knights of Shires tho they have no Votes at their Elâ—ction To conclude tho I grant that the King 's of England are the Fountain of that Honour which we call Peerage Yet it is only in Pursuance of that Ancient Constitution which their Ancestors brought out of Old Saxony and Normandy along with them as the firmest defence of Kingly Power against the Insolency and Encroachments of the Common or Meaner sort of People as well as Tyranny in their Princes And therefore in all Monarchies where there is no Hereditary Nobility the Prince hath no surer â—ay to maintain his Power than by Standing Armies to whose Humours and Pactions he is more Subject and is also more liable to be Murdered or Deposed by them when discontented with him than ever any limited Prince yet was or can be by his Nobility or People As I could shew you from a multitude of Examples not only from the Roman but Moorish Arabick and Turkish Histories and therefore to constitute a lasting stable limited Monarchy as ours is it must be according to the Model I have here Proposed M. I shall not contradict the latter part of your Discourse but I must freely tell you that if as you your self grant there were no Knights of Shires in the Saxon times I cannot see how those we call the vulgar or Commons of England had then any Representatives in the Great Council since those Thanes or Lords of Mannors whom you suppose to have Represented their Tenants or Vassals were never chosen by them and consequently could not properly be their Representatives But I think it will be easy enough to prove that none of your Inferior or middle Thanes but only the Chiâ—f or Superior had places in those Assemblies So that these Feudal Thanes or such as held of the King in Chief by Military Service were of the sam Kind with them that were after the Norman times Honorary or Parliamentary Barons and their Thainlands alone were the Honorary Thainlands and such as were afterwards Parliamentary Baronies Nor can I find any Footsteps in our Ancient English Histories of Cities and Buroughs sending any Representatives to those Great Councils So that admit I should own at present that the Bishops and some Great Abbots had from the first Setling of Christianity in this Island an Indisputable place in the Great Councils and likewise that the Earls Aldermen or Great Nobility had also Votes in those Assemblies and that the Chief Thanes or less Nobles had also their places there by reason of the Tenure of their Estates yet certainly the House of Commons was of a much later Date and owed its being either to the Grace and Favour of our Kings of the Norman Race or else to those that had Vsurp't their Power And this I think Dr. Brady hath very well proved against Mr. Petyt and I think I could convince you also of the Truth of it by his as well as other Arguments were it not now too late to enter upon so long a Subject F. Therefore pray let us defer any further Discourse of this Question till the next time we meet wherein I hope I may shew you that if you owe that Opinion to the Doctors Arguments he hath led you into a very gross mistake And I shall only at present take my leave of you and bid you good night M. I wish you the like ADVERTISEMENT A Brief Discourse of the Law of Nature according to the Principles and Method laid down in the Reverend Dr. Cumberland's now Lord Bishop of Peterborough's Latin Treatise on that Subject As also his Confutations of Mr. Hobb's Principles put into another Method With the Right Reverend Author's Approbation FINIS Bibliotheca Politica Or A DISCOURSE By way of DIALOGUE WHETHER The Commons of England represented by Knights Citizens and Burgesses in Parliament were one of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. Collected out of the most Approved Authors both Ancient and Modern Dialogue the Sixth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth and Fifth Dialogues 1693. Authors made use of and how denoted 1. Mr. Pettit's Ancient Right of the Commons of England Asserted P.R.C. 2. Dr. Brady's Answer thereunto Edit in Folio B. A. P. 3. The said Doctor 's Glossary at the end of it B. G. 4. Anamadversions upon Treatise Ianii Anglorum forces novo B. A. I. 5. The Author of Ianus c. his Confutation of the said Doctor entituled Ianus Anglorum ab Antique I. A. A. 6. Dr. Brady's Preface to his History B. P. H. 7. Dr. Iohnston's Excellency of Monarchical Government I. E. M. G. THE PREFACE TO THE READER HAving in my last Discourse treated of the Legislative Power of this Kingdom as also the Ancient Constitution of our English Government by great Councils or Parliaments the former of which questions I should scarce have dwelt so long upon had I then known of a Learned Treatise now 〈◊〉 to be publisht on that Subject I am at last arrived at the hardest and most important though perhaps in the Iudgment of some the driest and most unpleasant part of my Task viz. Who were anciently the constituent Parts or Orders of Men who made up thâ—se Assemblies That the Bishops Abbots Priors Earls and Chief Thanes or Barons were Principal Members is granted by all Parties but whether there were from the very Original of these Great Councils nay till long after the coming in of the Normans any Representatives for the Commons as we now call them in distinction from the Lords Spiritual and Temporal is a doubt which as it was for ought I can find first raised by an Italian who writ the History of England in the last Age so hath it been continued by some Antiquaries of our present Age though the first that ever appeared to prove the contrary was a Treatise published by James Howel in the Cottoni Posthuma under the Name of Sir Robert Cotton about 1654. but whether it was his or no I know not only it was supposed to be so by Mr. Pryn in his Preface to the Collection of Records which he published under the Name of the same Author in 1657. and after him this Notion of the Bishops Lords and other Tenants in Capite being the Sole Representative for the whole Nation in those Councils was next printed in the Second part of Sir Henry Spelman's Glossary Tit. Parliamentum where King John's Charter is made use of at the main Argument to prove that Assertion The next who appear'd in Prâ—nt on
this Question was Sir Will. Dugdale in his Origines Juridiciales who though he Transcribed the same Notion and Arguments from the 〈◊〉 mentioned Glossary yet allows the Commons of England to have been always after some manner represented in Parliament though not by Representatives of their own chusing yet agrees with the Author of the passage in the Glossary that the Commons first began by Râ—bâ—llion in the 49th of Henry the Third Which Opinions being looke upon not only as Novel and Erronâ—ous but dangerous to the Parlamental Rights and Liberties of the People of this Nation were opposed by William Petyt Esq in his Treatise intituled The Rights of the Commons of England assertio which was also seconded by the Author of the Treatise called Jani Anglorum facies Nova but it was not long before both these Books were animadverted upon by Dr. Brady in two several Editions of his Answers to them and these were again vindicated by the Author of Jani Anglorum c. in another Treatise intituled Jus Anglorum ab Antiquo which hath not been yet answered I have been the more particular in giving an account of these Authors because the Controversie having been largely debated in them I have for the saving your trouble of reading so many several Books reduced all the material Arguments and Authorities man use of by both Parties in this weighty Controversie into this Dialogue and the next since so copious an Argument could not be dispatch'd in a less compasâ— And 〈◊〉 have not here given you all the Arguments and Authorities that are there made use of but only the most material and indisputable yet I hope I have used this Liberty with that sincerity and respect to those Learned Authors that none of them shall have any just caâ—â—t to complain of any Partiality And therefore I have as near as I could confined my self to the Words of those Authors as you will find by the Quotations in the Margin But I must own that having had the happiness of a long and familiar acquaintance with Mr. Petyt I have been furnished by him with divers Authorities both Manusâ—â—â—p and Printed not hitherto taken notice of by any on this Subject And had I the like opportunity of being personally known to the Dr I should have desired the same favour of 〈◊〉 for such Replies as he might perhaps make to them Therefore all I can now do in this Case is that if the Dr. or any Friend of his shall think it worth their while to peruse and impartially to consider these Discourses and shall then remain unsatisfied with any of the Authorities or Arguments here made use of if either he or they shall think fiâ— to mâ—â—â— any Observations on them and will communicate their Papers to the Publisher of these Dialogues I do here ingage to take care that they shall be fairly and truly published with Answers to them if they will admit of any in an Appendix at the end of the whole Work when it is finished I have little more to trouble you with than to assure you That all the Authorities here made use of from our English Historians and Records are truly cited without leaving out or concealing any thing that I thought made for or against either Opinion but as for the Records they are either such as having been sufficiently tried have passed for current between the Dr and his Antagonists or else such as I have seen and examined with my own Eyes and considered the purport of them But I hope you will pardon me if I seem too prolix in the beginning of this Disâ—â—â—se in the interpretation of divers Words and Phrases used by the Dr. and his Opponents in a quite different sense from our Ancient Historians Records and Statutes for if the â—â—â—ous use and equivocal meaning of those Expressions be truly stated and laid open according to the several Ages in which those Authors lived or such Laws were made I reckâ—â— this great Dispute as good as half ended All that I shall farther desire of you is carefully and diligently to peruse the Arguments and Authorities and to examine the truth of them your self if you doubt of any thing in them weighing and comparing Historian with Historian and Record with Record and sometimes both together as the Subject-Matter requires and then I kept you will be able to make a right and impartial Iudgment on the 〈◊〉 For as I have 〈◊〉 in my Province fairly to report other mens Arguments and Notions so it is yours to judge of them which I heartily desire may be without any unjust Byass or Partiality to 〈◊〉 Side THE Sixth Dialogue BETWEEN Mr. FREEMAN a Gentleman AND Mr. MEANWELL a Civilian M. SIR You are welcome and since you were pleased to send me word that you would come and sit with me this Evening I have been looking over all the Saxon Councils collected by Mr. Lambard and Sir H. Spelman and yet I cannot find in them any mention of Knights of Shires or Burgesses for Cities or Burroughs the only persons there mentioned as Members of those Great Councils being Archbishops Bishops Abbots and Great Lords and Iudges often called by the general 〈◊〉 Names of Magnates Principes Proceres Optimates or Primates Regni which were all comprehended under the Saxon Word VVites i. e. 〈◊〉 by whom as Sir H. Spelman shews us in his Glossary 〈◊〉 meant only Senators or Wise-men that is either Noblemen 〈◊〉 Great Lawyers VVite in Somner's Saxon Dictionary being first â—â—endred Optimas a Noble Man and then Sapiens a Wise-man So 〈◊〉 these VVites or Sapientes so often mentioned in our Ancient 〈◊〉 Laws when they are put alone signifie all the Ecclesiastic 〈◊〉 well as Lay-Members of the great Council such as Earls Alâ—â—â—men and Thanes and Judges as Dr. B. more particularly proves in his Glossary 〈◊〉 the end of his first Volume But by Principes and Optimates can only be meant Nobles or Chief Men as the Word Princeps Magnas and Optimas do alâ—â—ys signifie in the Latin Tongue That is to say such of the King 's great Officers Noblemen and Judges of the Kingdom as he pleased to chuse out and 〈◊〉 to his Great Councils either for their great Wisdom or Estates to make 〈◊〉 of their Advice and Assistance for the making of Laws Therefore pray shew me where there are any Commons once mentioned in any of these Councils or any that represented them Here are indeed particularly mentioned Arch-Bishops Bishops Abbots Aldermen Wites Great-men and Chief-men or Noblemen These were all the Orders of men that were then the constituent 〈◊〉 of those Great Councils Wittena-Gemotes And if the Commons as now taken and understood were then Members of them they must be comprehended amongst the Wites or Sapientes the Wise-men But that it cannot probably be so I shall prove 1. That most of the Saxon Laws in their Prefaces are said to be made and ordained by their Kings
Legitimi Barones who as Ordericus tells us came in with his Father and setled themselves here after the Conquest But as for your Quotations out of William of Malmesbury and Ordericus Vitalis â—â—ncerning the English assisting King William Rufus against his Brother Robert by using the common bait of Liberty viz. promising that he would alleviate the Rigid Laws of his Father and give free Liberty of Hunting in his Forests 't is true he thereupon raised an indifferent Army consisting chiefly of English who as Mathew Paris tells us were no better than Mercenary or Stipendary Souldiâ—â—â— and who had either no Estates or else had been turned out of them before so that this does not prove that they were men of any Fortunes who thus assisted William Rufus F. As for what you have now said against the citations of the names out of Doomesday book is not material since if English names were then common to the Normans and them then the Norman names might be as well common to the English and then many of those in England whom by their names we suppose to have been Normans might be Native Englishmen and as for what you urge against the express words of the Charters I have now cited I think it is a downright wresting of the words Francis and Anglis since no Author that I know of but your Dr. and is of that opinion For that the word Franci or Franâ—igenae does signifie such Frenchmen who held Baronies in England is granted on all hands but how Angli must also signifie Frenchmen seems a Paradox to me for how could these Frenchmen or Normans be termed Englishmen only because they held Estates here and not in Normandy for if the having such and such Estates in England would have turned Frenchmen into Englishmen there needed no such distinction to have been made between French and English Barons in these Charters since according to your Doctors Notion the French Barons could be no other ways mentioned here but as they had Estates here and therefore could be only writ to in that capacity since as meer Frenchmen they had nothing to do here so that if this Epithete was so in respect of the Tenure of their Lands they would have been stiled English Barons as well as the other nor is your other evasion more to the purpose that by the Angli might be meant in the Charters of Henry the I. such Norman or French Barons who because they were born in England might therefore be called English for who can believe that in so small a time as from the beginning of the Reign of King William the I. to that of King Henry the I. which was but a little above 30 years so many of the Norman Nobility were dead as should make it necessary to use this distinction of French and English Barons since by their Tenures they were both alike English and thus to make Angli signifie Normans is to confound and make all words tho' never so plain uncertain and equivocal but that a residue of the English And as for what Ordericus says of the old Norman Barons it would have signified if you could have proved he had called them Englishmen as he does not But if you carry it further to the time of the Empress Maud and King Stephen when all the Old Race of Normans were certainly dead then there was much less need of this distinction when all that were born in England were English alike and therefore the word French could only extend to those few Barons who being born in Normandy had Estates here But since you are forced to confess that for the first four or five years of King William the I. Reign there were both English Earls and Barons till the King had by degrees rooted them out there cannot be a better argument against your pretended right of Conquest since it is plain King William could never pretend to take away their Honours and Estates as a Conqueror since by his Coronation Oath he was sworn to restrain all Rapines and unjust Judgments and that he would behave himself modestly toward his Subjects and Treat both the English and French with equal right so that if he afterwards took away the estates of English Nobility or Gentry it was either because they deserved it by Rebelling against him then it was justly done or else it was done without any cause at all but only to oppress and root out the English Proprietors and if so such actions being contrary to his own claim from Edward the Confessor as also to his Coronation Oath could no more give him any such right to Rob or Spoil Men of their Estates without any just cause then it could give him a right to Rob the Churches and Monasteries of all the Plate Money and Jewels which he found in them even to the very Chalaws and Shrines as Matthew Paris and other Authors tell us he did in the fourth year of his Reign when likewise according as you your self set forth he began to shew himself a Conqueror or rather a Tyrant in the taking away the Estates of the English without any just cause But however the Authors of that time do not make so great a Tyrant of your Conqueror as the Doctor for William of Poictou expresly tells us who was Chaplain to this King concerning his taking away the Estates of the English and giving them to the Normans that nulli tamen Gallo datum est quod Anglo cuiquam injustè fuerit ablatum And Ordoricus Vitalis speaking of his dealing with the English it the beginning of his Reign says expresly neminem nisi quèm non damnare iniquum foret damnavit and therefore Sir Henry Spelman shews us in his Glossary out of an Ancient Manuscript belonging to the Family of Shurnborn in Norfolk That Edwin of Sharborn and several others that were ejected out of their Estates and Possessions went to the Conqueror and told him that never either before or in or after the Conquest they were against him the said King either by their Advice or any other aid but kept themselves peaceably and quietâ—y And this they were ready to make out which way soever the King pleased to appoint whereupon the said King ordered an Inquisition to be made throughout all England whether it were so or no which was plainly proved therefore he presently commanded that all those who so kept themselves peaceably in manner aforesaid as these had done should be repossessed of all their Estates and Inheritances as fully amply and quietly as ever they had or held them before this Conquest This is so plain an Authority that it needs no Comment I shall now conclude with a reply to what you have said to evade the Authorities of those Ancient Authors I have brought to prove that in the beginning of the Reign of King William the Second there were many English Gentlemen left of considerable Estates which you and your Doctor would â—ain make
and Service to the Hundred and County Courts and that these very men were such as after your Conquest were called Barones Comitatus appears in this that those who before the Conquest were called Thanes are afterwards called Barons of Counties in all our Ancient Laws and Charters and for this I shall give you the Authority of Sir H. Spelman in his Glossary who tho' he does chiefly understand by this word all sort of feudal Barons dwelling in each County Proceres nempe Maneriorum domini yet nor only these but necnon liberi quique Tenentes hoc est fundoâ—um proprietarii Anglice Freeholders ut superius dectum est So that take it in which sense you will this word cannot signifie only Tenants in Capite or so much as Military Tenants as you suppose since a man might hold a Mannor by other Tenures than Knights Service as by grand or petty Serjeanty or in Soccage by a certain Rent and so likewise might he hold any other lesser Estate of Free-hold by the like Tenures which if it were so your Drs. Fancy of Tenants in Military service being then the only Free-men of the Kingdom and who were capable of serving upon Juries in the Hundred and County Court is a meer Chimera without any ground as I have already proved at our third meeting when I shewed you by the words liberi homines so often mentioned in King William's Laws are to be understood not only Tenants by Knights Service but any other Free-men or Free holders who held Lands or other Possessions which may be also proved farther by the Stat. of Merton Cap. 10. as appears by this clause Provisum est insuper quod quilibet liber â—omoqâ—â— sectam debet ad comitatum trithingum hundredum Wapentagium vel ad 〈◊〉 domini sui libere possit facere Attornatum suum ad sectas illas pro eo faciendas Whereby you may see that every Freeman who was a Master of a Family and not under the power of another was then obliged to pay Suit and Service to the County Trithing and Hundred Courts But say you these persons who were Jurors in this great Cause between Earl Odo and Arch-bishop Lanfranc are there called Primores and Probi viri not only of the County of Kent but other Counties where the Lands lay and it is not probable that the ordinary Free-men which made the greatest number and were all bound to their good behaviour could be the Probi Legales homines who served upon this Jury well I grant it that these Gentlemen you speak of might be Lords of Mannors and considerable for Quality and Estate and who alone were impannelled upon Juries in this and other such great tryals of Novel Disseiâ—in and yet for all that those lesser Free-men or Free-holders you mention were Legales homines and as such were capable of trying all Causes of what nature soever since Sir H Spelman tells us in his Glossary Title Legalis that In Iure nostro de eo dicitur qui stat rectus in Curia non exlex seu utlegatus non excommunicatus vel infamis c. sed qui in lege postulat postulâ—tur Hoc sensu vulgare illud in formulis juridicis probi legalis homines So that he does not make as you do that a Man's legality must depend upon his Tenure but upon his being rectus in Curia So that it is no more an Argument that because in some great Tryals in those times none but the chief and most considerable Men in the County were impannelled upon Juries in the County Court therefore none but they could ever serve there upon Juries at all then it would be now for a man to affirm that because in great Tryals at the Assises or at the Bar at Westminster only Knights and Gentlemen are Impannelled therefore none but they and not any Yeomen or Countrymen can ever serve upon Juries at all But let these Gentlemen you mention have been all Tenants in Capite or by Knights Service if you please yet will it not make good your assertion that they were only Normans or Frâ—nchmen who as the only Proprietors of Estates served upon this and other Juries at that time for they must have certainly been such who of their own knowledge knew the Lauds in question and to whom they did belong before K. William's entrance into England and your Dr. himself in his answer to Mr. Atwood's Ianus fully agrees to this truth as appears by this passage which I desire you would read In Tryals of Novel Dissâ—isin and for the Possession of Lands Customs Services c. the Juries at the time of the Conquest and in several of the King's Reigns next succeeding were Impannelled out of the same Town and Neighbourhood of such as did know the Land and things in question and who had been possessed of it and for what time And to this purpose in an Assize if none of the Jurors knew the right it self or truth of the matter and did testifie so much to the Court upon Oath recourse was then had to others until such were found who did know the truth but if some did know the truth and others not those that knew it not were put by and others called into the Court until twelve at the least should be found to agree therein and for this purpose it was that all Suitors to Hundred and Country Courts were bound to appear there under great penalties that thâ—re might be a Jury of such as knew whose the Land was and so far your Dr. is very much in the right but then that all the Gentlemen that served upon this Jury must be Englishmen is as plain from the reason he hath now given us and if he had not told us so we have an undeniable authority for it to wit the antient Mss. called Codex Roffâ—nsis quoted by Mr. Selâ—en in his notes upon Eadmerus where speaking of this Tryal Praecipit Rex Comitatum totum viz. of Kent absque mora considere homines Comitatus omnes Francigenas praeciput Anglos in antiquis legibus consuetudinibus peritos inâ—unum convenire But it also adds alii aliorum Comitatuum homines and so confirms what Eadmerus says so that nothing is more evident by your Doctors own shewing as also by the Testimony of this ancient Author that this great cause was Tryed either by Tenants in Capite and other great Free-holders were all Englishmen or such Frenchmen as were here before your Conquest so that from this famous Tryal we may draw two of three confusions directly contrary to your assertions First That there were many great Proprietors not only in Kent but in other Counties as appears by Eadmerus who were a sufficient number to try Causes in the County Courts a good while after your Conquerors coming over Secondly That the Pleadings and Verdict in this Cause being before Englishmen and given by them must have been all in