â—â—eton to prove either that every â—s the same with a Burrough or else 〈◊〉 taken as different from a Burâ—â— and indeed here are Burgi 〈◊〉 they must be small Towns incorâ—â—ed not holding in Chief â—â—ttleton's Words from which I have â—eason to dissent are these Chescun 〈◊〉 est un Ville Against Jan. p. 7. mes nemy e converso â— he translates Every Burrough is a 〈◊〉 but not e converso Now if from â—e infers that every Town is a Burâ—â— his Argument is thus every Town â—â—urrough because every Town is not â—â—rough A man of the weakest parts â—ell us a thing is so because it is â—e is a wise man indeed that can â— it to be so because it is not so Well but 't is a Town incorporaâ—â— and to strengthen his Argument produces Writs of Summons to Vills which if he argues at all shâ— That he allows the free Customs more than Tenants in Capite to comâ— Parliament to be hereby provided under the words which I insist on But pray did Littleton explain â— self that none but Towns incorpâ— were Vills Oh! but it must be What Liberties What free Customs common ordinary Towns and Parisheâ— enjoy Against Jan. Anglorum c. p. 7. What municipal Laws Whaâ— vate Laws and Priviledges Alas I have no Laws whereby they enjâ—â— any Lands If others had Land they were free from the Feudal Law for the Laws were broâ— in by and exacted upon only the â— mans themselves who all held in 〈◊〉 by Knights Service too Against Mr. Petyt p. 43. and 〈◊〉 could not have had so much as pâ—â— Customs or By Laws neither haâ— other Incorporated Towns any for are not within the Charter of Libeâ— which was to Tenants in Capite What says Fortescue to all this can he answer 't when he makeâ— the Genus to all Divisions under Hundred So that either a Buâ—â— corporated Town other Town and a â—â—arish Vid. the Franck-pledge in every Vill. Vid. etiam Jan. Angl. or Village may be a Vill mes neâ—e converso But is it possible that â—ortescue can gain Credit when such an â—â—thor says the contrary However â—â—'s hear him for methinks the man â—â—oks as if he had some weight in him Hundreds are divided into Villages Fortescue de laudibus Legum Angl p. 52â— â—â—der which Appellation are contained â—â—rroughs and by Burroughs must be â—â—ant such as held in Capite Towns inâ—â—porated without such Tenure or not â—orporated or else these were no Diviâ—â—ns within an Hundred And to be â—e an ordinary Village is a Village here Burrough is made the Genus to all â—â—wns but not to Villages but as he â—ws wherin a Village consists it wholâ—roves to my mind For the bounds of Villages are not conâ—ed within the Circuit of Walls p. 52. b. Buildâ—s or Streets but within the Compass Fields great Authorities certain Hamâ—â— and many other as of Waters Woods 〈◊〉 Wast-grounds which it is not needful set forth by their Names Here not any one of the Particuâ—â— seem necessary to be added to the â—â—er unless all must but even a certain Compass of Fields or of Woods 〈◊〉 make a Village without any great Aâ—thorities and within that space migâ—â— be certain free Customs which the Owâ—ers enjoy nay though not inhabitinâ— And for an Evidence of our Authoâ— great Love to Truth he observes 〈◊〉 what is said in the Comment upon thâ—â— very words which he cites out of â—â—tleton 1. Inst. fol. Villa ex pluribus mantionibus vâ—mata collecta ex pluribus viciâ— And if a Town be decayed so as no â—â—ses remain yet it is a Town in Law But what need I resort to foreiâ— Proof when in effect this is granted my hand For Against Jan. c. p. 61. ib. p. 63. King John's Charter and Kiâ—â— Henry the Third's were the very same King Henry the Third's was but â—ward the First 's and Ed. 1. in the â— of his Reign rather explained or enlarâ—â— that Charter of King John than câ—â—firmed the Charter of H. 3. Well to be sure nothing of Sâ—â—stance was left out So that the Rigâ—â—â— of coming to Parliament which indeâ— could not be omitted out of the Châ—â—ter of all the then Liberties and Rigâ—â—â— of the Subject were included in 〈◊〉 Charter of Ed. 1. Wherefore in those â—imes and in Henry the Third's if the Charter were in his time made and confirmed with that Omission of the Teâ—ants in Chief as not material the Rights of all were comprehended under the Liâ—erties and Free-Customs of the Civitates Portus Burgi Villae being from the â—9 H. 3. by the 25. Ed. 1. to be sure he Villae the Inhabitants holding Free-â—ands in any Village or Parish came by Representation So that in the Charter of King John Villae must signifie inferiour Towns or Parishes as well as in the 25. of Ed. he First But p. 64. 't is an absurd Supposal that by he 25. of E. 1. the Constitution was not â—etled even though himself says that the House of Lords was constituted before â—nd that a new Government was not onâ—y framed Against Mr. Petyt pa. but set up Nay I shall prove â—hat the Representations of the Commons were then setled but to urge almost he same Argument from other words of his If Hen. the Third's Charter accordâ—ng to Matthew Paris p. 62. on whom he â—elies in nothing differs from King John's As I have seen in several Manuscripts of great Antiquity affirming that they were some 2. aud some 9. H. 3. and which the Charter inrolled 28 Ed. 1. proves beyond Dispute and yet in that of Henry the Third the Clause relating to the Tenants in Capitâ— is left out Is it not Demonstration to him that the Rightâ— of small Towns and Parisheâ— were preserved by the general Words I insist upon And that according to the Sense of the Charter 15 Ed. 1. when the Commons were noâ— obliged to be represented by Tenants iâ— Capite only he himself contends for noâ— more than the Fact that sometimes moâ—â— of the Knights for the Counties weâ—â— such as held in Capite by Knights Service But why was not Henry the Third Confirmation of King John's Charter 〈◊〉 much the Charter or Grant of H. 3. â— Ed. the First 's Confirmation made it hiâ— Charter So that here is another Contradiction if he insist upon it that it was not as properly the Charter of Hen. 3. as Ed. 1. And in Truth Henry the Third's was most properly his since he granted it not as a Confirmation of King John's Charter but as the Liberties which were in England in the time of his Grand-father Hen. 2. For although the King says Ma. Paris 305. 〈…〉 Omnes illas libertates juravimus which I take it referred to the Confirmation 20 yet one of his Councellors insists upon it in the King's name that they were extorted by Force from King John for his Charter they
Rich. 2. tells us out of Sprot and others though some would have us think that he took it only out of Sprot He himself tells us that even where he follows Sprot Quaedam superflua à compilatione dicti Thomae resecans quaedam notabilia suis in locis eidem addens ib. he not only cut off many things but added many remarkable Passages Thorne gives us a particular Account of Stigand's raising the men of Kent to â—ight for their old Laws and Liberties Thorne fol. 1786. which many others not being Kentish â—en would not mention lest their Magnanimity should upbraid the sudâ—en yielding of the rest This I take to have been between October and Christmas when he was â—rowned and that having entred into Treaty and concluded on Terms at London which however they tell us that â—e broke he went towards Dover Vt â—llam cum caeteris partibus comitatûs suae â—ubjiceret potestati It seems Dover was then the Strength of Kent and he thought by the getâ—ing of that he should be able to keep all that Country under Upon this Arch-bishop Stigand and Abbot Egelsine and all the great men of Kent perceiving that an ill Fate lay upon the whole Kingdom and that whereas before none of the English were Servants now Nobles as well as Plebeians were brought under the Yoke of Slavery represented to the People assembled together the misery of their Neighbours the Insolence of the Normans and the hardship of a servile Condition and animated them all as one man to a resolution of dying or maintaining their Liberties I know many learned men look upon this part as suspicious taking the Sense to be that there were no Villains in England Sylas Taylor of Gavel p. 167. in Kent especially before that time which they are at pains to shew that there were But I conceive the meaning of the words is no more than that there had ever been in England a Distinction between Free-men and Slaves and therefore that none of the English that is the People of the Land which the Law has ever confin'd to Free-holders they that depend upon the Will of others Villains or Servants being no Cives any part of the Nation in that sense ought to bear that Slavery which the Violence of the Normans threatned to all in common Nor wants there Authority for the Freedom of all the Kentish-men in the largest Extent for in an ancient Roll of the Customs of Kent Lambert's Perambulation of Kent 21 Ed. 1. 't is said to have been allowed in Eire before John of Berwick and his Companions the Justices in Eire in Kent the 21 of King Edward the Son of Henry that is to say that all the Bodies of Kentish men be free as well as the other free-bodies of England Lambert's Perambulation p. 632. And this confess'd to be true 30. Ed. 1. in the Title of Villenage 46 in Fitzherbert where it is holden sufficient for a man to avoid the Subjection of Bondage to say that his Father was born in the Shire of Kent The just value of this Freedom Thorne made all the Free-holders of Kent with all that depended upon them resolve to put a stop to William's Depredations At Swanscomb was their general Randezvouz and their numbers were so great that as the Norman Prince advanc'd he found himself hem'd in with an armed Wood for that they might secure themselves of his making no Escape so confident were they of Victory or forcing their own Terms every man by Agreement took a Bough in his hand to block up the way The Arch-bishop and the Abbot in the name of the rest told him that the whole People of Kent were come out to meet him and to acknowledge him their Leige Lord if they might enjoy their Liberties and Laws otherwise they denounc'd War and bid him Defiance Upon this William calls a Council of War and he finds it expedient to give them their Terms they knowing how he had used those who trusted to his Generosity or Justice took Hostages as well as gave and then in full Assurance of his Performance yielded him their County or the Government of it not all the Land and Property there and as what would secure the Government there to him resigned up the Castle of Dover To this Relation Perambulation of Kent p. 25. the great and faithful Antiquary Mr. Lambart gives sufficient Reputation Mr. Camden says Camden ' s Brit. Ut verè quamvis minùs purè in antiquo libro sit scriptum that no man before Sprot has told these Circumstances but he cites an ancient Authority which was a Plea not oppos'd and which could not be taken from Sprot in which he confesses the Substance of this to be contained and though not elegantly writ yet with Truth So that Mr. Camden is on our side being convinc'd by the truth of his own quotation Dicit Cantii Comitatus quod in Comitatu ipso de jure debet de ejusmodi gravamine esse liber quia dicit quod Comitatus iste ut residuum Angliae nunquam fuit conquestus sed pace facta se reddidit Conquestoris dominatui salvis sibi omnibus libertatibus liberis consuetudinibus primò habitis usitatis The County of Kent says that in that County of right it ought to be free from such a Grievance because it sayes that that County was never conquered like the rest of England But having made a Peace yielded its self to the Conquerour's Dominion saving to themselves all their Liberties and free Customes at first had and from that time us'd It seems in standing up for their own Rights they reflected upon the rest as an humble conquer'd People And indeed whereas it has past into a Maxim Nemo miser nisi comparatus No man's condition is unhappy thought But when into the Scales with happier men he 's brought On the other side men are apt to think their Happiness incompleat without comparing themselves with those whom they look upon as deprived of the Advantages which they enjoy Thus our late Author enhances the value he puts upon himself by the Contempt which he thinks his Adversaries deserve though in truth how low soever they lye he rises no higher but it may be disgraces his Mastership by the comparison But to return to the Men of Kent the generality of which how free soever they were Against Mr. Petyt p. 39. were by his Rule no Freemen of the Kingdom for all the Freemen of the Kingdom were Tenants in Military Service Feudalibus Legibus non 〈…〉 Spel. Glos. tit Gavel kind Which was of the Feudal Law whereas their Gavel-kind was exempt from it I can imagine no other Reason why they above others constantly maintained their old Laws and Customes than that they were a sturdy People more than ordinary tenacious of their Rights and sensible of the least Violation And possibly for a long time they retained the Power of taking Satisfaction upon
If a man holding of the King in Capite by the Service of two Knights alien'd one or two Knights Fees with Licence without particular Exemption from the King's Duty in this Case the Burden went along with the Land but if he had according to Licence made sufficient Provision for the King's Service the rest he might have rais'd for his own use and though the Service continued to be reserved to the King yet the Alienee before the Statute of Quia emptores terrarum which was introductory of a new Law was Tenant to the immediate Feoffâ—r this Tenant had no Right to be at the King's Council of Tenants and yet was to answer Escuage and all manner of Charges as assest by the Tenants in Chief who were the only Council for the purposes of such Tenure Si quid novisti rectius istis Candidus impâ—rti si non his utere mecum If our wise Author greater Truths have taught Shew me wherein or take what I have brought To go on with Great and General Councils 21 H. 3. we find at a Great Council Comites Barones Milites liberi homines Whereas 't is said on the other side that none under the Degree of Knights came At another Jani c. p. 244. Barones Proceres Magnates ac Nobiles Portuum Maris habitatores nec non Clerus Populus universus 'T is a ridiculous Answer to this that all these are put together only to make an Impression upon the Pope as if the Sense of the whole Nations Representative whatever it were were not as much to move a Foreign Prince as the whole Nations 45 Hen. 3. Three are chosen out of every County to represent the Body of the County An Agreement was made between King and People 48. H 3. Jan. c. p. 246. A Domino Rege Domino Ed. filio suo Prelatis Proceribus omnibus et communitate regni Angliae To all this p. 265. may be added that long before where the ingenuitas regni were consulted Here are Instances enough of greater Councils than such as King John's Charter settles as I have observed those there were made a Council only for the matters of their Feud they met ordinarily three times a Year and in that were ordinarily a Court of Justice and he betrays his Ignorance not to say more who affiâ—ms the contrary 'T is no Objection to this that sometimes we find Regnum Angliae at it for still 't was ad Curiam pro more Not that the Kingdom used to come of Course but then came to that Court which was ordinary or of Course That the Kings great Officers and Ministers of Justice were there I have always yielded and that 't was no Grievance to the Tenants to have Justice administred without them at other times and therefore it makes not against my Sense that these often sat without the Tenants Yet their sitting was not at stated times and therefore they were not Curia pro more Either way there was a great Council distinct from the less 1. As to the persons composing the one and the other The Great Council had the whole Nation of Proprietâ—rs or of Representatives of their Choice in the other at the most the King had only his Tenants in Chief and Officers and Ministers of Justice 2. As to the matters treated of the one treated of matters of extraordinary Justice the other but ordinary 3. For time the great Council was summon'd as often as the State of the Kingdom required it the other as a Court of Tenants and Officers had times ascertain'd not but that as occasion might offer it self they might be summon'd according to King John's Charter Nay may be after that they never met but upon Summons the lesser Court of Officers and Ministers of Justice met oftner than either but not of Course And thus have I answered his Arguments from King John's Charter by which he labours to prove That Tenants in Chief only composed the Great Council or were all the Nobility of England and have given a clear Account of that unintelligible piece as he is pleased to represent it leaving out what I offer'd upon the Question of the Bishops Voting in Capital Cases since he had no other way of answering it than by calling it impertinent Rhapsody Tho if 't is no better to be answer'd 't is not Rhapsody and fancyful Stuff and if the first ground from our Laws to dispute their Right mentions it in relation to the Curia Regis 't was not surely impertinent to consider their Right the Curia from whence 't was excluded being so directly to my purpose There are other things incidentally coming in which I divide not into Heads being they serve but to explain those which I have rais'd To which may be added That our Author by the Exercise of his Faculty of Story-telling and setting forth the Power of the great rebellious Barons Against Mr. Petyt p. 210. has given us to understand That the Commons were not first brought into the Great Councils in the 49 of Hen. 3. unless we believe that the great men would coâ—sent to ballance and weaken their own Power I may put the Question in his own words upon another Occasion Can it be reasonably imagined Against Mr. Petyt p. 234. 235. that they should give way to or establish such Laws as would undoe and destroy their own Settlement in Power Wherefore the Argument is strong that till then the Commons came in their own Person but that then the Great men having the Power in their hands clip'd their Wings But let us see his weighty Arguments against my sense of this Charter In Answer to my third Head he puts me off with the Fallibility of a Parlialiament but if moral Certainty without Infallibility will not satisfie him in matters of the greatest Concern we may know what he would be at But forsooth this was not a full Court of Tenants because as was usual only some few attested the Fact In Opposition to my Fifth p. 10. 11. he tells us that even voluntary Gifts to the Crown are called auxilia nay even such as were more than Advances upon Services But what proof is there that such were here meant when not only Services because of Tenure with the Advances upon them but what came from more than Tenants are called Auxilia too As general Objections against my Sense 1. If Tenants in Capite were a great Council of the Kingdom p. 12. for Aids and Escuage only which is hardly reconcileable to Sense Why so good Dr. May there not be a great Council especially a Common-Council to a particular Purpose Nay you your self confine it's Power to the raising of Taxes Why was the Cause of Summons to be declared Because of the occasion requiring greater or less Aid 2. Lastly If all Free-men or as our Author saith in other places all Proprietors were Members of the Great and General
Auxilium which is there meant of voluntary aid not due upon the account of their Houses being oâ— of the Kings Demeasn though indeed 't is then shewn that they had severalâ— times before been talliated Quid a new Paragraph Quid esâ— quod in hâc Causâ defensionis egeat must needs say I take all this to be sâ— plain that I know not which part ought to add any light to Is the difference between Tallage and a Voluntarâ— Aid obscure Or is it not well known that the Kings Demeasns only were talâ—â—liated and that the City having beeâ— talliated 't was in vain to urge thaâ— they paid only voluntary Aid But perhaps in the two next the oâ—scurity may lye and yet by the Doctorâ— Art of multiplying faults they maâ— make three obscure Paragraphs 2. This explains that part of the Charter He adds such to Cases to render it obscure Jani c. p. 26. Simili modo fiat de Civitate London that is as in all Cases besides those excepted Escuage or Tallage should not be raised but by a Common-Council of the Kingdom that is of all the persons concerned to pay so for the City of London unless the Aid was ordered in Common-Council wherein they and all other Tenants in chief were assembled none should be laid upon any Citizens but by the consent of their own Common-Council Na. So if a sum in gross were laid upon them and if the Ordinance were only in general Terms that all the Kings Demeasns should be talliated the proportions payable there should be agreed by the Common-Council of the City This consists of two parts First That where there was not the consent of a Common-Council of all the Tenents in chief the Citizens might of themselves give a Tallage which is not in dispute between us but is with admirable ingenuity turned into an assertion Viz. To such payment as Tâ—â—lage that Cities and Burroughs were not taxed or assessed towards any payments but by their own Common-Councils which is not to be inferred from the priviledge of one City suppose it were so for London nor can be gathered from my words which yield that even London might be Taxt or Assessed by the consent of the Common-Council of Tenents or that they Against Jani c. p. 113. as part of the Common-Council of the Land taxed themselves which is true but no man of sense can understand that to be the meaning of this part of the Obscure Paragraph but that something farther was intended 2. The second I need not explain since he understands for all his affected ignorance Indeed he would take in more places that after a Tax was imposed upon the City of London the Inhabitants or those who composed its Council met to proportion it so as it might be paid with as much equality as could be Na. the King did perhaps require a certain sum after a general Ordinance made by the Council of Tenents for a Rationabile auxilium Jani c. p. 26. This he yields to my hand that they always did if they would it seems convinced by that Record which shews that when the Council of the City would not agree to the Sum demanded by the King 't was de voluntate omnium Baronum nostrorum Civitatis ejusdem that the King talliated his Tenents per se or per Capita so much upon every head 3. This clears the last Paragraph which I need not recite it having no meaning differing from the Record but if my Record give not sufficient light and strength he I thank him according to his usual Curtesie cites one clear enough Dr. p. 115. Et cum praedicti Cives noluissent intrare finem praedict ' trium mille marcarum praedicti Thes. alii voluerint assidere illud Tal. per Capita So that till the Citizens refused the the Sum in gross the King did not Talliate each man in particular But I am told that this is nothing to my purpose 't is strange that he who blames me in other places for not quoting more than is for my purpose when nothing behind makes against me should now tax me for not skipping over any part of that Clause which 't was needful to take and explain entire To clear up his understanding if possible though I thought to have left this Task I will obviate an objection which such as our Answerer may make that 't is obscure how the Record of the Common-Council of London's concerning its self about the Charge laid upon the City should explain that part of the Charter which sayes Simili modo fiat de Civitate London but surely practice is a good Interpreter of a Law and there is this further evidence that here is provision for the power of the Common-Council of the City because that holding in Capite and being mentioned distinct from all the other Tenents there named in general it must be for something else besides that for which 't is joyned with the other Tenents But Excedimus tenebris in crepusculum from this obscurity and darkness to be felt by the Doctors groaping hand we come to broad day light When in the 39th H. 3. Against Jani p. 115. 117. Provisum fuit per Consilium Regis apud Merton that he should talliate his Demeasns though this was after King John's Charter which was intended to restrain the King from levying publick Taxes without publick consent yet it seems to be plain by the Record that the King by the advice of his Privy Council taxed the City of London even without the consent of the Common Council of his immediate Tenents whom he makes the Common-Council for all manner of Aid and Escuage But it may be said a Tallage was no publick Tax though the Tax here spoke of is made no more publick than the consent required to charge it Which consent according to him was from immediate Tenents only so that Tallage might be a publick Tax as well as any other And to be sure Scutagium concerning the Kings Tenents only and the Cases in which the King reserv'd to himself power of taxing without publick consent in his sense relating only to them the Tax because of tenure must be provided for as well as other if any other were there meant by Auxilium vel Scutagium Nay he owns expresly that according to the Law in King John ' s Charter London and other Cities and Burghs were to be Assessed and Taxed by the Common-Council of the Kingdom p. 117. 118. And he makes a reason of that provision to be the usage in the time of H. 2. for the King to Talliate or Tax them without such a Council The Doctor has doubtless the most particular convincing way of reasoning of any man he says that Law in King John ' s Charter intended to restrain the King from levying of publick Taxes without publick consent And the reason of this Artice in King John ' s Charter is Argument sufficient to prove it for mark the weighty reason H. the Third after this was granted and Edw. 1st taxed their Demeasns through England though
the Iniquity of Mâ—nkind And whatsoever Act preceeds from the King's Ministers or whatever Malice be in the Heart of any of his Subjects the Law that Angel with a flaming Sword deâ—ending his Throne will not suffer it to affect him Nay if through Misunderstanding of the Law it should happen that a King go contrary to his own Justice 't is as if no such thing had been done So Plowden's 〈◊〉 iâ— he having an Estate in Taile Alien though from a common Person it would work a Discontinuance yet from him it has no Effect because it would be a wrongful Action Though he has more Power than any Subject yet Subjects may be and are more able to do Mischief And for a full Proof what Confidence the Law has always had in the King 's doing nothing in his own Person but what is highly fitting though an effect should follow upon a rigorous Action of his as if he should kill an innocent man with his own hand there never was any Remedy And this was taken for Law as long since as the Confessor's time Nor is it to be imagined that William the First and his Successors reâ—eded from this Power how little soever â—hey exerted it In that famous Case where the Confessor Tit. of Honour fo 525. impeach'd Earl Godwin of Treason 't is urged by the great men of Godwin's Party that he could not be a Traitor to the King because he was never â—ied to him by Homage Service or Fealty 'T is answered and not replyed â—o on the other side That no Subject ought Bellum contra Regem in appellatione â—uâ de lege vadiare could not lawfully demand the Battail against the King Appellant Sed in toto se ponere in â—isericordia Regis but must wholly yield himself to the King's Mercy In this Case though the Party might prove himself against a Subject to be innocent yet there was no way of Tryal against the King the Appeal being the only Tryalâ— and that required Battail but a maâ— ought rather to lose his Life than strikâ— his King to whom he owes his Protection and Defence from Rapine as the King iâ— the great Executer and Preserver of thâ— Laws Though this Case is of the King 's appealing yet if a Subject should presume tâ— be Appellant against his King for thâ— Death of his nigh Relation the Reason holds and surely 't would be very absurd for an Indictment to be brought in the King's Name who has Jus gladii against himself others could not executâ— the Judgment upon him and I take it no man can be compelled by Law to bâ— felo de se. But what need have I to say any thing on a Subject which every man is bound bâ— his Allegiance not to controvert I shall only observe That the Disputâ— between us can be no more than whâ—â— Right one Subject or body of Subjects has to impose upon another Whether 〈◊〉 â—o the Kings of England have always had a Council in matters of Legislature we have no Difference the only Question is who were of the Council but if as 't is argued on the other side Tenants in Capite were the only Council and if I prove that the House of Lords succeeded to the whole Power of such Tenants and these can have no more than they had he that makes the Tenants the only Council for the Legislature takes away the King 's Negative Voice for that the Lords have in that Jurisdiction which they enjoy upon that old Right of the Tenants in Chief and no King pretends to the Trouble of having a Negative in matters of ordinary Judicature But besides this which I have answered there is a Charge of being an Enemy to the Government by Law establish'd in the Church for which we must consider that the Government in this Respect is made up of the Laws and the Officers in it For the Laws I dispute none of them because I acknowledge the Authority which made them and whether 't is advisable that any of them be altered I leave to the Supream Wisdom of the Nation For the Officers I quarrel not at the Chief the Order of Bishops nor yet at the Ecclesiastical Jurisdiction upon the Reason already given and my Proof that they have this by Law perhaps is Particular truly I conceive it to be a great Mistake that the Statute which took away the High Commission Court took away all Ecclesiastical Jurisdiction for only the part relating to that Court is repealed and then the first of Elizabeth having revived the 28th of Hen. 8. the former Power called Ordinary Power is left entire being provided for by the Statute of H. 8. Which amongst other things Enacts That every Arch-bishop and Bishop of this Realm 28 H. 8. â— 16. and of other the King's Dominions may minister use and exercise all and every thing and things pertaining to the Office or Order of an Arch-bishop and Bishop with all Tokens Insigns and Ceremonies thereunto lawfully belonging It may be said That still I say nothing of the Divine Right of Church Officers and Power but that I may step as far as can reasonably be expected from a Lay-man I acknowledge that there is a Divine Right for Church-Officers and Spiritual Power distinct â—â—om the Civil I cannot now but hope that I have said â—nough to render me fit to be heard upon â—y first Subject in which I have followâ—d the Authority of the great Fortescue â—ho taught the World long since nor is â—his man of Letters too good to learn of â—im that in all the times of these seveâ—al Nations and of their Kings Fortescue p. 38. 6. As translated already this Realm was still ruled with the self-â—ame Customs that it is now govern'd with all Which if Mr. Selden had taken in â—he Genuine Sense as meant of the Government or Constitution which is the Foundation of all particular Laws he â—eed not have been at so much Pains in his Comment hereon If I find any thing more expected from me either in Vindication of my self or â—n more fully drawing my Adversary in â—is proper Colours and admirable Features the first I shall do for the sake of Truth and if I can get as much vacant time from my Studies and Practice in my Profession His Letter to the Earl of Shaftsbury as it seems he has had from â—is I may do the other if it be only for Diversion I am sensible that want of time or of Health to give the finishing Strokes to this rude Draught are of themselves but poor Excuses to a Reader who would doubtless be content to stay till he could see some thing more correct but when my delay would give time for so much growing Mischief as has been sent abroad to spread it self even such an Antidote as I now offer may be accepted till Mr. Petyt has fully prepar'd his Catholicon which will persuade them who have been imposed upon with Noise and Nonsense to
to his Parliament and no others unless by chance But pray what a Reflection is this upon several excellent Monarchs Successors to H. 3. whom he renders Denyers of their own Acts though under the Broad Seal But there is an Argument in the Parliament Rolls 3 H. 6. p. 12. upon the Question of Precedency above-mentioned where 't is taken for granted that our Kings and Queenâ— had not then such a Prerogative to do wrong If soch commandementz shold make right and yeve title it wer to hard for yen shold it seme yat neither of my sayd Lords Erls Mareschal and Warwyck shold fro this day never sitteâ— in Parlement without new Commandement To tell the Lords who are concern'd 〈◊〉 this that there are many who have an â—â—defeazable Right by Patent and some â—he first of whose Ancestors or themselves ever had any more than the ordinary â—rits without creating Clauses or any â—her than such as when any Parliament â—as to be called went out of Course and Right to them who were Lords before â—ould be as needless as the Orators Disâ—ourse of Tacticks to the Carthaginian Hero I shall be bold to offer to Consideration â—herein consists the Right of such a Sumâ—ons and I take it to be in the Prescripâ—ion though perhaps none were setled in â—he Right of coming till the 11th of R. 2. Yet the time from whence they preâ—cribe might be Earlier and yet whether Writ alone or only as fortified with Preâ—cription gave the Right here was what was not still left to Royal Pleasure onâ—y I conceive that a Writ of special Sumâ—ons of it's self gave no man Right to come always after this as a Lord for if it made him not a Lord it gave him no Right to come to the Lords House as such And this I take to be evident from the Records of the several Summons of the twâ— Furnival's Jan. Angl. at the latter end Father and Son who had thâ— same Writs of Summons with the Lordâ— and yet were no Lords for the loweâ— Degree of Lords was Barons and thâ— Son pleads that his Amerciament in a great a Sum as a Baron was against Law for that he neither held by Barony neâ— Baro suit intitulatus nor was called Bâ—ron nor obtained that name which could not have been if he was one of the Baronâ— in Parliament so that he could be no more than an Assistant as the Assistants havâ— Writs in the same form with the Lords Wherefore if any claim'd from Writ 〈◊〉 must be by prescribing to have had it 〈◊〉 long time in his Ancestors as amounts 〈◊〉 a Prescription by the Custom of Parliament which is the Law of it Besides 〈◊〉 can be no Objection that to a Prescription 't is necessary that it should have been iâ— memorially so as nothing to the contrary can be shewn whereas the very first Wriâ— may be seen for this most plainly is different from common Prescriptions both in the manner of it and in the Reason of thâ— thing 1. In the manner We find the Burgesses of St. Albans to lay their Prescription only from the time of the Progenitors of E. 1. which might be only from within the time of King John or from the beginning of his Reign if but from the later end â—here were an hundred years for a Prescripâ—ion 2. But besides this apparently differs in the Reason of the thing so that it must needs have a different Law from common Prescriptions For other things the Ground of the Right is the always having enjoyed either by a man's Ancestors or by them whose Estate he has And if it were at any time in others and it could not appear when they parted with it 't was a manifest Injustice for them to make such a Claim to have it so that â—he appearing upon Record when the first Writ was is an Argument that a Prescription may lawfully be made in this Sense 2 There were Commonalties Rot. Parâ— 8 E. 2. Bodies contracted by Representation that came to Parliament of Right who yet were Lords in the Drs. Sense being they held in Capiâ—e as he supposes the Knights for the Counâ—ies to be Grantz the same with Magnates as they held in Capite I am persuaded in this he taught the most Learned what fell not within their Knowledge oâ— Belief before and for a while made them quit that peice of Philosophy Nil admirari in wondring at the Sagacity of the man However by this time 't is wond'rous plain from his Demonstrations that admit a Difference was made between Lords and Commons with distinct Power yet the Commons of Counties Citties and Burroughs were not only often called by the same Names Yet I take it that such Tenants in Capite had no share in the Judicature because then 't would have continued still but were strictly Lords and therefore had a joynâ— Power even in Judicature For if they came before as Tenants in Capite and that Tenure made them noble 't was to be ever in the same manner since 6 R. 2. c. 4. But the very Traders nobilitated by the Dr. lay claim to and have allowed them a Right from Prescription It may be objected from hence against my Notion of the Lords which held in Capite being pass'd by at the King's Pleasure tho others were not that here a Prescription is laid upon the Tenure in Capite And it being from before the 49th oâ— Hen. 3. there could have been no such Settlement as both my Opposite and my self receive He perhaps has set aside this in his own Opinion but I must confess I can't embrace his new Sense However I think it no hard matter to give a natural Answer For the Author cited by the faithful Mr. Camden acquaints us with no other Alteration than what related purely to Singular Personâ— ex tanta multitudine Baronum Mat. Par. Quasi suâ— numero non cadebat Who being scarce to be numbred made very great Disturbances which required a new Model and a Restriction of the Numbers provided it might be with a just preservation of the Rights of every one in particular but those great Bodies which before came by Representation could admit of no change without a tendency to Destruction Agreeably to this Observation the Inhabitants of St. Albans plead their Right to be represented in Parliament not barely because of Tenure in Capite Rot. Parl. 8 Ed. 2. but Sicut caeteâ—i Burgenses regni as other Burgesses in â—he like Circumstances 3. I hope I have some Reason for my Confidence when I affirm that I ought 〈◊〉 differ from this New Light when it instructs us that the King 's appointing â—nd ordaining p. 227. That all those Earls and â—arons of the Kingdom of England to which he thought fit to direct Writs of Summons should come to his Parliament and no others or as he repeats the same meaning the Arbitrary Practice of Henry the Third Ed. the First and his Successors
constantly was the Constitution of the House of Lords Having recited the words of Camden's Author he goes on Having had one great Antiquary's Opinion Against Mr. Petyt p. 228. joyned with matter of Fact upon the Constitution of the House of Lords let us see the Opinion of another concerning the Origin of the House of Commons so that the Constitution of the House of Lords answerâ— to or is in the same Sense with Origin in Relation to the Commons And the making this to have been the Constitution of the House of Lords and maintaineâ— in Practice ever since is as much as 〈◊〉 say the Rights of that Order of men aâ—â— not setled at this day for the despotic Power in this matter has been if we believe him constantly exercised and thaâ— of Right ever since the 49th of Henry the Third By the Constitution of the House 〈◊〉 Lords that which is the only thing possibâ—â— to be here implyed by the word is the Righâ— of the Lords to come as Lords and the beginning or first Establishment of it For the Constitution of an House separate from the Commons could not consist in the King 's leaving out or calling Lords at his Pleasure since such Arbitrary Procedure with them would only differ them in point of Interest from the Commons whom he pretends not to have been omitted at the King's Pleasure ever since the 49th of Henry the Third but he denies in effect that any Lord and by Consequence even enough to make an House or distinct Assembly of Lords in Parliament had or yet have any Right Thus against the Laws of Friendship he destroys the Successors of those Tenants in Capite whom he so dearly lov'd and cherish'd And it seems courted a great Asserter of the Rights of that High Order with a fawning Epistle that he might the more easily betray them all with a Kiss of the hand Vid. his Letter to the Earl of Shaftsbury and Your Lorships Most humble and obedient Servant â—nto a Belief that he could give all due Saâ—isfaction In the Charge which I have drawn up I have intended no Injury if the Consequences will not hold 't is from the Error of my Judgment not of my Will For my self admit what I am impeach'd of by him to be true yet being I argue that ever since the 48th or 49th of Hen. 3. no man had Right to come but as at this day If my Notion of what the Government was before be false 't will do no harm and I hope it cannot be affirmed with any Justice that I am a new Government Maker in relation to the present Frame yet I know that it has been whisper'd about as if I would have this Government to be new modell'd which I utterly abhor and that more than my Accusers the Ground of whose Accusations have been chiefly my devoting my self to the Service of the admirable Constitution by King Lords and Commons the Rights of the two last I have according to my Capacity defended being theâ— have been controverted But surely nâ— man dares be so presumptuous to set him self against God's Vicegerent by Divinâ— Appointment put over us and that 〈◊〉 our great Happiness in all matters or Caâ—ses There are several Interests in our mâ—serably divided Nation and wise men may be of each Party yet if any such should wish ill to our gracious Monarch or to Monarchy it self both his Wisdom and his Honesty were justly questionable What Alteration of Property the great Basis of a Nations Strength and Peace would be upon a new Model when Ambition an over-weening Opinion of a man's self Covetousness nay and Prodigality too would make many strive to be uppermost while they brought their poor Country under the greatest Slavery For my part I shall not scruple to deliver my self with the greatest Openness and Plainness of Heart The King is justly the Supream Head and Governour in all Causes Ecclesiastical as well as Civil Long may he enâ—oy this his undoubted Right Serus in coelum redeat Hor. Ode 2. diuque Laetus intersit populo precanti Neve se nostris vitiis iniquum Ocior Aura Tollat Long may he live and long in Peace command Monarch of Hearts as of his native Land Long be it e're the Angels nigh his Throne By mounting up with him leave us alone His Prerogative no man or body of men can take from him which his excellently devised Negative to all Petitions and Counsels secures And this makes it that the Sanction of all Laws is from the King only for what a man does by the Advice of Counsel he does by himself as much as a man acts freely in those very things in which there is the special Assistance of Grace and Conduct of Providence For fear I should not be clear enough in my Expreâ—sions though my Heart be clear in it I will make the learned Bishop Sanderson speak for me He says according to my real Sentiments Sanderson de obligaâ—ione Conscientiâ— Praelectio 7. p. 189. Cum dicimus penes unum Regem esse jus condendarum legum nonâ—id ita intelligendum quasi vellemus quicquid Regi libuerit jubere id continuò legis vim obtinere nam populi consensum aliquem requiri mox ostendam Quin hoc est quod volumus quod scilicet Plebiscita Senatus consulta caeteraeque Procerum plebis aliorumque quorumcunque rogationes nisi regia insuper authoritate muniantur non obligent subditos nec habeant vim Legis quibus tamen maturè ritè preparatis simul ac Regis accesserit authoritas legis nomen formam authoritatem protinus accipiunt incipiuntque statim ac promulgatae fuerint subditos obligare Cum igitur illa sola censenda sit cujusque rei causa efficiens principalis sufficiens quae per se immediatè producit in materiam preparatam introducit eam formam quae illi rei dat nomen esse etsi ad productionem ipsius effectûs alia etiam concurrere oporteat vel antecedere potius ut praevias dispositiones quò materia ad recipiendam formam ab agente intentam aptior reddatur omnino constat quotcunque demum ea sint quae ad legem rectè constituendam antecedenter requiruntur voluntatem tamen Principis ex cujus unius arbitratu jussione omnes legum rogationes aut ratae habeantur aut irritae esse solam adequatam publicarum legum efficientem causam Besides this I have in Sincerity subscribed to his Majesty's Power in Calling Proroguing and Dissolving of Parliaments and this were enough in relation to our present Controversie being only of Parliamentary matters But in short to offer at the Flower of all other Flowers of the Crown the King can neither do nor suffer wrong but like God Almighty dispenses his Blessings to the inferiour World while he sits above in an impeccable impassible immortal State God is not the Author of Evil nor can he suffer by
not the whole Kingdom by Advice and Consent of their Privy-Councils only until the Stat ' de Tallagio non concedendo That is as Tallage is confest to be a Publick Tax because some of King John's Successors Tax't their Demeans without publick consent Therefore 't was provided in King John's time by way of Prophesy that no publick Tax Aid or Escuage should be raised without publick consent So that what was done after was a moral cause or occasion of what preceded 'T will be said that the thing that the Doctor went to prove was that the Common-Council mentioned in the Charter was the Great and Common-Council of the Kingdom to all intents and purposes Not that the King was restrained from levying a publick Tax without the consent of the Great Council But surely when he goes to give the reason why the Charter must be taken in such a sense we are to expect the proof of that not of something else quitting the thing to be proved If I can understand his dark meaning he was proving that Nullum Scutagium c. intended to restrain the King from levying publick Taxes without publick Consent That is to explain what he very obscurely drives at the restraint was only from Taxing the whole Kingdom not from Taxing his Tenants in Chief And the reason of this Article p. 118. viz. as taken in this sense is that several times after this Charter was granted Hen. 3. and Edw. 1. Taxed their Demeasns through England though not the whole Kingdom by Advice and Consent of their Privy-Councils only until the Statute De tallagio non concedendo was made 34 E. 1. And both Richard the First and King John had Taxed the whole Kingdom without common Assent before the grant of Magna Charta And when he has made good the Premises in this Argument for the meaning of the Article which will be ad graecas Calendas then he may conclude that this Article intended to restrain the King Na. he should have added only Nullum Scutagium c. only from levying of publick Taxes without publick Consent not to provide about Escuage or Tallage which none but his immediate Tenants were liable to And from hence when prov'd we might with some more colour and coherence raise the Consequence that the Common-Council mentioned in King John's Charter was the Great and Common-Council of the Kingdom to all intents and purposes But how that should appear from the mention of Aid and Escuage only will be a Question ' T is by him observ'd of Richard the First Accepit de unaquâque carucatâ terrae totius Angliae sex solidos But what proof is there from the word accepit or the collecting of a Tax ex praecepto Regis that he took it without publick consent Bracton Lib. 1. cap. 16. I am sure Bracton as good an Author as the Historian whom he Vouches tells us Carvage and such this was could never be raised but Consensu communi totius regni But if the King in his Privy-Council might Tax the Kingdom its self till the making King John's Charter and was restrain'd then I wonder our Reverend Author has made the Constitution of the House of Lords that is according to him the whole great Council to have been no earlier than the 49th of H. 3. And unless such a Council as is mentioned in that Charter were Constituted before Nay sometimes he Argues that it was not before p. 56. how comes it to pass that the Clerus and Populus which were of the Kings Council for making Laws and giving Taxes were not till 17. Jo. confin'd to such of them as were of the Privy-Council as well as Communitas populi after Magnates was meant of such people as were Magnates and Milites p. 110. liberè tenentes besides Barons were the Tenents in Capite 112. who by their Acts oblig'd all that held of them by Knights Service 113. that is all the Milites but not the liberè tenentes We are taught that in the 6 of King John Tenents in Capite only Against Jani c. p. 125 126 127. provided that every nine Knights should find a tenth for the defence of the Kingdom and that they who were to find them were all Tenents in Military Service Though the Record shews that besides the Miles vel Serviens Alius terram tenens was Charged with this And he vouchsafes not to take notice of my Argument that every Knight being bound by his tenure to find a man if this had not extended to all that had to the value of a Knights Fee Jani c. p. 225. though not held by Knights Service it would have been an abatement of the Services due and a weakning of the Kingdom Besides admit that Tenents in Capite only laid this Charge and only Tenents by Knights Service were bound by it here is such a Commune Concilium of Tenents as I say King John's Charter Exhibits and no Charge laid by them upon others Whereas he should have prov'd that they did oblige others without their consent But suppose Tenents only were Charged why might not the Charge have been laid by Omnes fideles in my sense as we find Omnes de Regno taxing Knights Fees only The Doctor in his Margin gives us an admirable nota p. 119. that Liberi were Tenants in Military Service or Gentlemen Rustici Socagers possessors or Freeholders in Socages only which is as much as to say that Freeholders were not Freemen unless they held in Military Service and yet a Tenement or Possession neither added to Glos. p. 10. or detracted from the person of any man if free or bond before But surely Mr. Professor has some colourable proof for his remark here For that let others judge Hoveden acquaints us with the manner of collecting a Carvage in the ninth of Richard the First which was that in every County the King appointed one Clergyman and one Knight who with the Sheriff of the County to which they were sent Galls Mâ—lites and lawful Knights chose and sworn to execute this business faithfully Fecerunt venire coram se senescalos Baronum istius comitatûs de qualibet villâ Dominum vel Ballivum villae prepositum cum quatuor legalibus hominibus villae sivae liberis sive rusticis who were to swear how many Plough Lands there were in every Town If here liberi and rustici are not meant for two denominations of the same sort of men that is ordinary Freeholders I will leave him to fight it out with Hoveden since he himself is directly contrary to the old Munâ— Hoveden shews us that these Socagers were legales homines such as chose Juries and serv'd on Juries themselves Against Mr. Petyt p. 36. c. but our new light