our ancient Tenures and manner of holding and enjoying our Lands and Estates as will appear by comparing our Antient Tenures with theirs F. I shall not deny but that a great part of the matter of Fact is true as you have now put it yet tho' I grant that the Bishop Abbots Chancellors Chief Justices and other great Officers of the Crown were all or the greatest part of them Normans during the Reigns of the two first Kings of the Norman Race it doâ—s not therefore follow that these Men must have made a change in the very substance of our Laws tho' in matters of form of pleading or judicial proceedings they might have introduced great alterations for as to the Civil or Municipal Laws of this Kingdom concerning the Descent and Conveyance of Estates they continued the same after the coming in of the Normans and Lands held by Knights Service descended to the Eldest Son and Lands in free Soccage and Gavel-kind to all the Sons alike so likewise there were Estates In tail and Fee simple as now and there were also the like Customs of the Courtesie of England Burrough English c. as there are also at this day as I can prove to you by several passages out of our English Saxon Laws so likewise for Conveyance of Estates those of the better sort of People called Bookland were conveyed by Deeds with Livery and Seisin either with or without warranty as they are now but that which was called Folâ—land held by the meaner sort were only by Livery and Seisin without any Writing And tho' I grant that the custom of sealing of Deeds is derived from the Normans yet that is an alteration only in matter of forn and as for Goods and Money they were bequeathable by a Man's last Will as well after as before your Conquest And if you can have the opportunity to peruse a Manuscript Treatise of Sir Roger Owen's upon this Subject you will find it there sufficiently proved That Livery of Seisin Licenses or Fines for Alienation Daughters to Inherit Trials by Juries Abjurations Utlaries Coroners disposing of Lands by Will Escheats Gaols Writs Wrecks Warranties Felons Goods and many other parts of our Law were here in being long before the time of King William this being so as to the common Law let us see what alterations there were in the Criminal or Crown part of the Law first as to Treason and wilful Murther they were punished with Death in the Saxon times as well as after as were also Robery and Burglary in the night time but as for lesser ofâ—ences such as Batteries Maims Robberies and other breaches of the Peace they were punished by Fine as well before the Conquest as after but as for the Law of Englisherie which was that if a Man were found Murthered it should be presumed he was an Alien or Frenchman and the Town thereupon where the Body was found was to be fined unless Englisherie was proved i. e. that the person was an Englishman this Custom tho' it lasted to the Reign of Edward the Third when it was taken away by a Statute made on purpose tho it may seem a badge of the Norman Conquest yet was it indeed a Law introduced by King Knute in behalf of his Danes who being often found killed and none could tell by whom he obtained this Law to be made to prevent it as you will see at large in Bracton and the Mirrour of Justices But as for trial of all offences it was either by Juries Fire or Water ordinal by Dewel or Battle or else by Witnesses or Compurgators upon Oath as well before as after King William's entrance so that I can find nothing material as to the alterations of the Laws either in matters Criminal or Civil from what they were in the Saxons time and this being so it is easily answered how the Judges and Officers might be Normans and yet the Laws continue English still for first it is certain that for four or five years in the beginning of K. William's Reign he made no great alteration in the Judges and other great Officers of the Kingdom and by that time those whom he was afterwards pleased to imploy in the Rooms of such as either died or were turned out might very well come to understand the Laws of England as far as they distered from those of Normandy which was not in many particulars since as your self very well observed the Saxons and Normans being both Northern People had many of the same Laws and Customs common to both and the same persons might in three or four years time have very well learned English enough to have under stood the Evidence that the Witnesses gave before them without any Interpreter But say you all the Pleadings and Judgments were in French and therefore the Lawyers and Pleaders must be Frenchmen which is likewise a false consequence for Pray tell me why might not the English Lawyers have learnt French enough to Plead in three or four years time which must necessarily be required before so great an alteration could be made or Lawyers enough he brought out of Normandy and sufficiently instructed in our Laws and Customs could be fitted for their employments again supposing all Pleadings and other Proceedings to have been in French it does not follow that this practice could have obtained in all the Courts of England for tho' I grant that in the Kings Court at Westminster where the Judges as you say were for the most part Frenchmen or Normans yet this could only have some effect either in that great Court or Curia Regis where the King often sat in person together with his Chief Justiciary and other Justices or else in the Court of Common Pleas which followed the Kings Court till it was ordained otherwise by Magna Charta or else the Court of Exchequer where in those days only matters concerning the Kings Debts Lands and Revenues were chiefly heard and dispatched but as for the Court of Chancery it was not then used as a Court of Equity nor long after till the Reign of Henry the IV V and VI. when it arose by degrees as you will find in Sir William Dugdale's Origines Iuridiciales So that granting all the proceedings in these Supream Courts to have been in French because the King himself who sat there with the chief Justice and the rest of the Judges were either Normans or Frenchmen yet was this of no great importance in comparison of the Suits and Causes which were first begun and try'd in the Inferiour Courts in the Country before ever they could be brought up to London by Writ of Errour or Appeal which could only be in Causes of great Moment or between the Kings Tenants in Capite So that now to let you see that what say I say is true we will Survey all the inferiour Courâ—s of that time beginning with the lowest and going up to the highest of them The first Court we find of this kind
Lords or Peers of Parliament and that the rest being the lesser or lower Tenants in capite sometimes stiled Barones minores were for some time before this summoned by general Writs directed to the Sheriffs or Bayliffs as appears by King Iohn's Magna Charta Now whether these men were ever really Peers or not I have reason to doubt since I do not find but it was they alone who for some years after the Conquest served upon Juries in County Courts and dispatched all the publick business of the Country which was then as at this day a drudgery beneath the Peers to perform and therefore I shall not insist upon it But thus much I think is certain That they were a sort of persons much above any other Lay-men of the Kingdom since they held their Estates immediately from the King and were so considerable as that by the Constitutions of Clarendon they were not to be Excommunicated without the King's leave and so were then in some sort of the same Order ratione Tenurae with the great Barons or Peers being commonly stiled Barones and made up but one Estate or Order of Lay-men in Parliament And from thence I suppose proceeds that common Error of Sir Ed. Coke that the Lords and Commons did anciently sit together and made but one House Now if you have any thing to object against this Notion pray let me hear it F. I think you and I are come pretty near an issue in this question for you confess that these lesser Tenents in capite and whom you comprise under the word Barones were not truly and properly Barons and so far you are in the Right but yet you will have them to be somewhat more than mere Commoners as if there had been some Degree or Order of men in England in those times who were neither Lords nor Commons but an Amphibious Race between both But to prove that they were indeed no more than Commoners and not Lords nor Peeâ—s at all nor equal with them we need go no farther than their way of Trial in cases of Treason or Felony which was by mere Commoners who were not Tenants in capite as well as those that were so that a person who was no Tenant in Capite and might serve upon a Jury of Life and Death upon them and as well as the Dr. in his Answer to Mr. P. as you asserted that they only served in the Country upon all Iuries and that before the time of King Iohn So after all this noise of none but Lords and Tenants in capite appearing for the whole Commons of England we find by your own showing that three parts in four of the Lay Members of that Council were as meer Commoners as our Knights of Shires and Barons of the Five Ports at this day nor can I see any reason why these latter might not be as well comprehended under the Word Barones as the former who were meer Commoners likewise if we consider that it was neither Nobility nor Birth nor the King's Writs of Summons but only the meer Tenure of their Lands that gave them a particular right to a Place in that Assembly in those Ages or if a meer Citizen could get Money enough to purchase such an Estate in capite he was as good a Member of Parllament as the best of them all So that the Question then amounts to no more than this Whether the Commons of England were then represented by Tenants in Capite or by Knights of Shires and others as they are now But since you will have none Commoners but Tenants in capite to have had places therein pray tell me whether you allow that Priviledge to all who held in capite or not M. Yes I allow it to all who held in capite by Knights Service and who also enjoyed a whole Knight's Fee or so much as was sufficient to render them able to sustain the Dignity of that Place not but that the King had also a prerogative of summoning or omitting whom of them he pleased to his Great Council or Parliament till the Less Tenants in capite thinking it a wrong to them it was provided by King Iohn's Charter that all of them should be summoned by one General Writ of Summons directed to the Sheriff But I exclude from this Concil all Tenants by Petit Serjeanty who tho 't is true held of the King in capite yet was it not by Knights Service So likewise I exclude all Cities and Towns tho the Citizens or Burgesses of divers of them held their Lands and Tenements by that Tenure since being neither noble by Blood nor having Estates sufficient to maintain the Port of a Gentleman or Knight they had no Right to appear there in Person among the other Tenants who were owners of one or more Knights Fees Yet do I not affirm that the Commons were not after some sort represented in Parliament by their Superior Lords tho not as Commoners since the Bishops Abbots and other Barons did then make Laws and give Taxes not only for themselves but their Feudatory Tenents also tho of never so great Estates and Tenure in capite was then looked upon as the only true Freehold of the Kingdom and the Tenents by it as the only true Freeholders F. I shall shew you by and by the falsity of this Notion but in the mean time pray tell me when a Great Council or Parliament was called who represented those Persons who you say did not appear there and made General Laws and granted General Taxes for themselves and the whole Kingdom when there was occasion For I see you shut out the greater part even of these your true Freeholders from this Assembly M. As for the Tenents in Petit Serjeanty I at present conceive tho I am not sure of it that many of them might hold Lands and perhaps divers Knights Fees by Grand Serjeanty or Knights Service also since those Estates which were given by the Conqueror to his Servants to be held of him by such and such Petit Services might in process of time fall by Purchase or Descent into the hands of such Great Tenents in capite as had sufficient Estates to maintain that Dignity and as for the rest they might for ought as I know before the Statute de Tallagio non concedendo have been taxed by the Kings Writs according to the proportion of the Knights Fees or parts of Knights Fees which they then held and according to the Rate of the Sums imposed in Parliament either by way of Aids upon every Knights Fee or else by way of Subsidy by so much a yard or Plow Land throughout all England which has been the only way of taxing ever since that of Knights Fees hath been disused F. Then I find after all you have said that scarce half your Tenents in capite had any Votes in Prrliament either by themselves or their Representatives and so having Laws made for them and being taxed at the King's Will were as
that if the Sense of these Words have been sufficiently explained I think no reasonable man can have any cause to doubt whether these Abstract Words Nobilitas Universitas and Communitas should be taken for all Sorts and Degrees of men when thus represented in the Great Council or whether they shall be confined to the Greater or Lesser Nobility only viz. the Great Lords Bishops and Tenants in caâ—ite as you would make me believe which requires stronger Proofs than what you have yet brought Besides which Sense of this Word Communitas or le Commune it is also more commonly used at this day and often then too in another more restrained and yet legal sense and that is when it is used for the Commonalty or Commons of England distinct from the Peers and this may very easily be distinguished by observing that when it is taken in this Sense it is always set after the particular enumeration of the other Orders of the Lords or Peers viz. the Arch-Bishops Bishops Abbots Priors Earls and Barons or when it is put contradistinct to the Word Magnates I shall give you some Authorities and Examples from Historians and Records of both these and that in the Times preceding those that you allow the Commons to have been summoned in Parliament Of this sort is that which Matt. VVestm mentions as a Parliament held 37th Hen. III. and which is thus recited in the Patent Roll of this year where after the Excommunication denounced against all Infringers of Magna Charta there is this solemn Clause aâ—ded That if to the Writings concerning the said Sentence any other thing or in any otherwise should be added thereunto besides the Forms of the said Sentence then to be denounced and approved of that then Dominus Rex praedicti Magnates Communitas Populi Pretestantur publice before all the Bishops that they would never consent thereunto and conclude thus In cujus Rei Testimonium in posterum Veritatis testimonium as well the King as the Earl of Norff. Heref. Essex and VVarwick as Peter de Sabaâ—dia ad Inslantiam aliorum Magnatum Populi Praescripti sigilla sua apposuerunt where you may see that it was usual before the 49th Hen. III. for those that were Peers to sign for the Communitas Populi or Commons M I pray give me leave to answer your Authorities as you bring them lest I not onely forget some of them but also tire both you and my self with too long a Discourse I hope I am very well able to prove by the learned Dr.'s assistance that the Communitas Populi here mentioned doâ—h signifie not the Commonalty or Commons but the Community of the Laity there present consisting of the Greater Barons or else the Less or Tenants in capite And for proof of this pray take notice that Matt. Paris called this Council Tota Angliae Nobilitas And in this Parliament the King demanding a great Sum of Money of them after much contest and upon promise to reform all Abuses according to the Tenour of the Great Charters thereupon the same Author tells us The Church granted the Tenth of the Revenue for three years and the Knights or Nobility granted for that year Scutage to wit Three Marks of every Scuâ—uâ— or Knights 〈◊〉 And then the Arch-Bishops and Bishops in their Pontificalibus with Light-Candles in their Hands in the presence and with the assent of the King the Earl of Cornwal his Brother and several Earls there named aliorum Optimatum Regni Angliae and other chief men of the Kingdom excommunicated and cursed all those that from thence forward should deprive the Church of her Right and all those that should change alter or diminish the Liberties of the Church and Anciâ—â—t Customs of the Kingdom especially those granted in the Great Charter of the Common Liberties of England and Charter of the Forest granted by the King Arâ—hiâ—piscopis Episcopis cateris Angliae Praelatis Comitibus Baronibus Militibus â—â—berè Tenentibus c. i. e. To the Arch-Bishops Bishops and other Prelates of â—â—gland and to the Earls Barons Knights and Free-Tenants or Tenants in Military 〈◊〉 Knights Service For they only were such aâ— paid Scutage which was at this â—ime a kind of composition with the King for the confirming Magna Charta and was never charged but upon Knights Fees and these were such that held perhaps one narrow or scanty Knights Fee only or some part of a Knight's Fee as an half 3d 4th 6th 8th part c. who all paid a proportionable share of Scuâ—age to the Great Lords or Tenants in capite for the Land they held of them in Military Service which was paid first to the Great Lords and by them paid to the King And from thence I collect that besides the Barones Majores that came to this Great Council or Parliament there were also the Tenants in Capite according to the Directions and Law for Summons in King Iohn's Charter who were comprehended under the Words tota Nobilitas Milites and that other Tenants but held of the Tenants in capite by Knights Service were bound by their Acts 〈◊〉 they all knew how many Knights Fees they held of the King in capite and if â—â—ey had given any away to others they held of them as they did of the Crown â—â—d answered a proportionable rate towards this Tax for the Fees Quantities 〈◊〉 Parts of Fees they held of them about which there could be no mistake 〈◊〉 the Scutage was ascertain'd So that in so Great an Assembly where all the Nobility of England were called together by the King 's Writ and upon so great 〈◊〉 occasion and solemnity as confirming the Great Charter of Liberties after such an extraordinary a manner it cannot be doubted but besides the Barons all the 〈◊〉 in capite both Great and Small which were then very numerous were â—resent or at least most of them from whence it is not difficult to tell you to the Communitas were after the Prelates Barons and Magnaâ—â—â— they were no other than the Small Tenants in capite who were all summoned by one General Writ nor chosen and sent by the people but summoned as the Great Barons in general by King Iohn ' Magna Charta as I shall shew you hereafter F. I hope I shall be well enough able to prove that what you have now alledged is pure imagination or in the Dr. Phrase an airy Ambuscade and quite contrary to the Sense of Matt. Paris as also of the Lawyers and Historians of those Times For in the first place nothing is plainer than that this Author by the Words Communitas Populi must understand an Order of Men distinct from the Magnates or else if the Word Magnates might have comprehended them all it would have been to no purpose to have mentioned any more But to answer those Authorities you bring from Mat. Paris As for the Word Nobilitas since you still insist upon it I
have already proved that the whole Parliament as well the Lords Spiritual and Temporal as Commons were both before and after this time comprehended under these words Nobilitas Angliae and if you yet doubt of it I can give you a plain Authority out of VValsingham for it is in his Life of Edw. II. Anno 1327. where relating the manner of that King's Deposition he tells us That when the Queen and Prince came to London there then met Tota Regni Nobilitas to depose the King and chuse his Son in his stead and then there was sent to the King being Prisoner in Kenelworth Castle on behalf of the whole Kingdom two Bishops two Earls two Abbots and of every County three Knights and also from London and other Cities and Great Towns especially the Cinque Ports a certain number of persons who informed him of the Election of his Son and that he should renounce the Crown and Royal Dignity c. This Proof is so plain it needs no Comment As for the rest of your Argument the strength of it chiefly consists in this that the Tax there mentioned is said to be granted à Militibus or Tenants in capite as you would have it of three Marks upon every Knight's Fee But in the first place I desire you to take notice that this Scutage is not Scutage Service but a general Land Tax or Manner of taxing according to Knights Fees and which was continued long after Hen. III. Reign as it appears by this Passage in Sir Henry Spelman's Glossary Tit. Scutagium Edwardus primus habuit 40 Soli de quolibet 〈◊〉 Anno Regni 13 Dom. 1285. pro expeditione contra VVallos And it was also granted by the Lords and Commons after the 18th of Edw. I. when you and the Dr. supposes the Commons to have then came to Parliament and if so I desire to know why a Militibus here mentioned by this Author must only signifie Tenants in capite by Knights Service and not the Knights of Shires since it is not here said a Militibus qui de Rege tenuerunt in capite And therefore it is a forced Interpretation of the Dr.'s and without any Authority to limit these words Militibus libere Tenentibus omnibus de Regno nostro which you omit with an c. as also the omnibus Hominibus Liberis Regni nostri only to the Arch-Bishops Bishops and other Prelates of England and to the Earls Barons Knights and Free Tenants or Tenants in Military or Knight's Service because they were only such as paid Scutage VVhereas you have already acknowledged that Magna Charta was granted to all the people of England who had all a benefit by it and who paid towards the aid there granted as well as the Tenants in capite But if Knights Fees alone were Taxed and that by the Tenants in capite only I desire to know by what Right all Tenants in Petit Serjeanty and by Burgoge oâ— Sâ—occage Tenure who made a greater Body of men in this Kingdom in those Times could pay this Scutage since they held not by Knights Service but by certain Rents or other Services and so not appearing in Person could have no Representatives in this or any other Parliament of those Times But if you will tell me they might pay according to the value that Knights Fees were then reckoned at viz. for every 20 l. a years Estate I desire to know how this could be called Scutage or how the Tenants in capite or other Lords from whom they held those Lands could give away their Money for them And in the next place I desire also to know how all the Cities and Burroughs in England could be charged with this Tax a great many of them is you your self grant holding of the King in capite or else of Bishops Abbots or other Mesâ—e Lords by Soccage or Bargage Tenure So that this Tax if granted only by the Tenants in capite by Knights Service could reach them and no other persons but if by this Word a Militibus may be understood Knights of Shires then the Tax was general as well upon Soccage Tenants as those by Knights Service But for the other Words you insist upon viz. the Liberi Tenentes which you translate Tenants by Military Service if that had been the meaning of these words then they had been altogether in vain since you have already told me that the â—â—lites were so called non a Militari Cingulo sed a Feodo and if it were no Name of Dignity then certainly the Word Milites would have served to comprehend all your Liberi Tenentes or Tenants in capite without any other addition But that these Words Laberi Tenentes do not here signifie Tenants by Military Service pray see Sir Henry Spelman's Glossary Tit. Liber Homo liber Tenens where he there gives us a more general Signification of thesewords thus Ad Nobilesolim spectabant isti 〈◊〉 à majoribus ortos omnino Liberis and then ends thus vide Ingenuus Legalis 〈◊〉 Francus Tenens Liberè alias Liber Tenent quo etiam sensu occurrit interdum Homo 〈◊〉 which upon every one of these Titles he makes to signifie all one â—â—d the same thing viz. an ordinary Freeholder And therefore it is a very forced Interpretation of yours to limit these Words Communitas Populi only to the Community or Body of the Earls Barons and Tenants in capite Tho I confess you are very kind in one main Point in únderstanding the Communitas Populi to mean the Community of the Lesser Tenants in capite that were no Barons and then do what you can these Words must here signifie Meer Commoners or Commons unless you can shew us a Third Sort of Men who tho neither Lords nor Commons yet had a place in Parliament So that these Gentlemen notwithstanding their Tenure were no more Noble than their Feudatory Tenants or Vavafors themselves my than the Knights of Shires are at this day And then granting as I doubt not but I shall be able to prove that the Cities and Boroughs had then also their Representatives there I pray tell me whether or no there were not Commons in Parliament before 49 Hen. III. or not which is contrary to your Dr.'s Assertion in divers places of his Answerâ— to Mr. P. And that the Word Populus must here signifie the Commons and not the whole Body of the Laity appears plainly by this place you have quoted since it is restrained by your self to mean not the whole Community of the Kingdom but only the Community of Lesser Tenants in capite who were not Lords But that Matt. Paris doth also in another place take the Word Populus for the Commoners and not for the whole Body of the Laity pray again remember what he says in Anno 1225. where relating the manner how Magna Charta came to be confirmed in 9th Hen. III. he tells us Rex Henricus ad Natale tenuit Curiam suam apud VVestm
destrain for the Escuage so Assessed by Parliament or in some Cases they may have the King 's Writ directed to the Sheriffs of the same County c. to Lâ—vy such Escuages for them as appears by the Register But if either King Iohn or King Hen. III. granted Writs to levy Escuage upon the under-Tenants of the great Lords and Tenants in Capite without their own Consent in Parliament this ought to be no more cited as a Precedent than any other illegal Acts committed by those Kings since as our Records and Histories tell us it was such illegal Proceedings which were the cause of the Barons Wars And it is expresly against the words of this Charter of King Iohn which you have now quoted viz. nullum Seâ—â—agium vel Auxilium pâ—nam in Regno nostro nisi per Commune Consilium Regni nostri So that notwithstanding all you have yet said it doth not appear to me how Scutage when given as a Tax upon Knights â—ees alone and to be levyed not only from the Tenants in Capite themselves but their under-Tenants as also from the Tenants of them who though they held in Capite yet held not by Knights Service such as were the Tenants in Peâ—â—y Serjeanty and those who held of the King in Chief as of several Honors and not of hiâ— Crown as in Capite could ever charge such Tenants without their Consentâ— given either by themselves or their lawful Representatives much less could your Tenants in Capite Tax or Charge such as did not hold in Capite themselves viz. Those Abbots and Priors who held Lands in Right of their Monasteries in Franc Almâ—igne and who together with their Tenants made at least two third parts of all the Abby-Lands in England as also Tax'd those who not holding by Knights Service at all but by Tenure in Socage or Fee Farm did not hold their Lands as Knights Fees and therefore could never be Taxed by your Tenants in Capite for so many Knights Fees or parts thereof And Braecton who lived at this very time has distinguish'd to no purpose between those Common Services which all Tenants owe their Lords and the general Taxes or Charges imposed by the Common Consent of the whole Kingdom The words are very remarkable pray read them Sunt quaedam Communâ—s praestationes quae servâ—cis non diâ—uâ—iâ—â— nec de consuâ—tudine venâ—um nisi cum necessitaâ— intervenerit vel cum Rex venorit sicut sunt Hidagia Corraagâ—â— Carvagia alia plura de necessitate ex consensu Communi torius Regni introducta quae ad Dominum feâ—di non pertinent And therefore I cannot see any Reason why the great Lords and Tenants in Capite should ever have Power to lay a general Tax upon the whole Kingdom not the tenth part of which did then hold of them by Knights Service So that nothing seems plainer to me than that there was us our ancient Historians tell us a distinct Court which was held anciently three times every year viz. at Easter Whitsuntide and Christmas and then the King was attended by all the Bishops great Lords and other Tenants in Capite and this was called Curis or Concilium Regis and if any difference of Right did arise between the King and his Tenants or between Tenant and Tenant here it was to be heard and determined and many other things were there uâ—ted and done in relation to the King's Barons or Tenants in Capite only But under Favour this was not the Commune Consillum Regni or Parliament as we now call it for the King held this Court ex More or by Custom without any Summons as Simon of Durham and Florence of Worcester and divers other Writers of the Lives of our first Norman Kings do shew us But when they take notice of the meeting of the Commune Consilium totius Regni their Expressions after and then they say that Rex ascivi as it is in Ordericus Vitalis Ex praecepro Regn convenerunt or as Eâ—â—merus Rex Sanctione sua adunavit And Mat. Westminster of later times takes notice of this Union or Meeting of this Câ—ria or Assembly of Tenants in Capit together with the Great Council or Parliament in his History of Hen. III. Where relating how the King again confirmed the Great Charter in a Parliament Anno Domini 1252. being the 37 th of his Reign He hath these words In quindenâ— Paschae Adunato Magno Parliamento c. So that it seems plain to me that this uniting of the great or whole Parliament must be understood the Conjunction of both Councils together and therefore when this Council of Tenants in Capite that thus met ex more took upon them assess Escuage and transact other matters of consequence without the consent of the major part of the Tenants in Capite who often failed to appear at these Courts or Assemblâ—es held ex more it was then and not before expresly provided by this Charter of King Iohn that Escuage should not be assessed for the future without Summons or Notice given of it to all the Tenants in Capite who had right to be there M. I see you would fain prove that there was a Council or Assembly of great Lords and Tenants in Capite distinct from the Parliament and which met ex more and that these were the Persons who were by this Charter to Assemble for the Assessing of Escuage which is a meer precarious Hypothesis nor can you or those from whom you borrow this Notion make it out from any good Authority for I have already proved that the Barones Regis Regni were the same Persons and that usually the Barons or Tenants in Capite of what Quality soever did repair to the King's Court at Christmas Easter and Whitsunday doth appear to have been the Custom of those times from the Testimonies of our ancient Historians But to prove by examples out of the Authors you your self have made use of that the Bishops great Barons and Tenants in Capite were then alone the great Council of the Kingdom pray read Eadmerus speaking thus Celebratum est Concilium in Ecclesiâ Beati Peiri in occidentali parâ—e juxta Lâ—nâ—inum sita Communi Consensâ—â— Episcoporum Abbatum Principum totius Regni buiâ— Conventui assuerunt Primates Regni utriuâ—que ondinis And at this Meeting were present the Prime Men of the whole Kingdom of both Orders in this Council the Bishops and Barons are called the Principal or Chief Men of the Kingdom yet these were all the King's Barons they all held of him in Capite and so did all the Chief Men of the Kingdom So likewise in another Meeting under this King Hen. â— when Arch-Bishop Anselm was to give his Answer to the King according â—o the Advice of the Bishops and chief Men of the Kingdom The same Author tells us of Anselm that in Pascha ad Curiam venit Communis Concilii vocem unam
Communitate Regni cannot mean as you would have them viz. That the Lords and Tenants in Capite had granted it for themselves and the Community of their Tenants by Military Service only who say you represented the whole Community of the Kingdom for then as I have already observed this needed not to have been granted in Parliament at all but at this rate no Tenants of those Abbeys and Monasteries which were a great many who did not hold in Capite would have payed any thing to this Tax nor yet the Kings Tenants who did not hold in Capite but of some Castle or Honour Nor lastly any Tenants in Socage who were very numerous in Kent as well as in other Counties as Mr. Taylour proves in his History of Gavâ—l-Kâ—nd so that if your Tenants in Capite and other under Tenants by Military Service had been then the Community of the whole Kingdom This Community had not consisted of above one half or at most a third part of the Kingdom But in my sense of this word Communitas here will be no difficulty at all for these Magnates mentioned in this Record being taken as I have proveâ— they often are for Knights of Shires then these words are thus to be understood viz. that all the Parties mentioned in this Record gave for themselves and the whole Community of the Kingdom consisting of all the Free holders of England who all contributed to the Marriage of the Kings Daughter according to their respective Estates and tho the sense of this word had been otherwise in this place yet it would not have contradicted my sense of the word Communitas which I do not aver always to signifie the Commons but when it comes immediately after the words Comites Barones as it does not in this Record you have now cited M. But pray tell me how this could be since the Record says expresly that this Aid was to be Raised by 40 s. upon every Knights Fee which could only extend to Tenants by Knights Service nor could this word Communitas here signifie the Commons as now understood since the Citizens and Burgesses are not at all mentioned who you know do at this day make up the greatest part of the Representatives of the Commons of England F. This proceeds from your not knowing or else not consiâ—ering the ancient manner of reckoning Estates and consequently of Taxing by Knights Fees not only Lands held by Military but Socage Tenure also as appears by those Writs of the 24th and 26th of Hen. III. as they are still upon the close Rolls being both almost the same word for word which I gave you at our last Meeting yet since you may have forgot them pray read them again Rex Vice-Comiti Northampton saluâ—em praecipimus tibi quod per totam ballivam etiam in singulis bonis villis similiter in pleno Comitatu tuo clamari faâ—ies quod omnes illi de Comitatu tuo qui tenent Feodum Militis integrum vel etiam minus quam Feodum integrum dum tamen de Tenemento suo tam Militari quam Socagio possint sistentari Milites non sunt siâ—ut Tenementa sus diligunt citra festum omnium Sanctorum Anno. Regni Nostr XXV Arma capiant se Milites â—iâ—ri faciant Where you may Note that all Men who held the value of a Knights Fee either by Military or Socage Tenure were liable to be made Knights provided they could maintain themselves of their Estates which could never have been had not the Custom of Reckoning and Taxing Estates of all sorts as well by Knights Service as otherwise according to the value of so many Knights Fees that is at 20â— per An. been then commonly used But as for your next Objection that the Citizens and Burgesses are not mentioned in this Record and so could not be comprehended under the words Communitas Regni this proves no more then that which will easily be granted you that this word Communitas used in your Record is there to be understood restrictively and according to the subject matter viz. the Community of Free-holders or Land-holders of the whose Kingdom only since this Tax being wholly upon Lands the Commons of Cities and Burroughs then called Communitates Civitatum Buâ—gorum whose Estates lay in Money or Goods could not be Taxed by Knights Fees nor do I doubt but that if we had the Records of that Parliament of the 18th of Edw. I. now left us which are lost it would appear that they also contributed to this Tax according to their Estates as they did in the 34th Year of this King to make the King 's Eldest Son a Knight As for your Record of the 20th of Edw. III. it is but the same in effect with this of the 30th of Edw. I. and the same answer will serve for both only I cannot but observe that whereas you have often asserted that this word Communitas did only signifie the Community of Tenants in Capite now you fall a Peg lower and it must at last take in the whole Community of Tenants by Knights Service whether in Capite or not M. Well then you gâ—ant that this word Communitas does not always signifie all the Commons of England as you supposed but farther that it must mean the Community of the Tenants in Military Service only Pâ—ay see this very Record of the 34th of Edw. I. which Mr. P. has given us at large in his Appendix which being long I shaâ—l tâ—ouble you with no more then what makes to our present purpose viz. that the King inâ—ending to make his Son Prince Edward a Kâ—ight Summoned the Arch-bishops Bishops Abbots Priors Earls Barons and other great Men of the whole Kingdom to appoint what Aid they would grant the King towards it and then it follows thus that the Prelates Earls Barons and others as also the Knights of Shires being mer treating together with deliberation upon this Matter consiâ—ering that an Aid was due to make his Son a Knight besides the burthen that lay upon they King by reason of the Scotch War at lengh they unanimously Domino Regni concâ—ssâ—runt pâ—o sâ— â—â—tâ Communitate Râ—gni â—ricesimam partem omnium Bunâ—â—um suorum â—â—mporalium mobilium for making his Son a Knight and toward his Expences of his War in Scotland Aâ—d then the Cives â—u genses Civit â—â—um ac Burgorum â—c caeteri de Dominiâ—s Râ—gis Congregati treating about the Premises and considering the burthens lying upon the King not mentioning any Aid for making his â—on Knight as not holding of the King by Knights-Fee oâ— Serâ—ice and therâ—fore none of the Community of the Kingdom nor liâ—ble to it Dâ—mino Râ—gâ— un inâ—mitâ—â— ob cauâ—as supra dictas concâ—sserunt Vic. simâ—m pariem bono 〈…〉 mobilium Here the Pâ—elates Earls Barons and great Men with the Knights of Shires consulted together and gave for themselves and the Community of the Kingdom a Thirtieth part of their
Men of the Kingdom had then in full Parliament on the first of Iune granted him 40 s. on every Knights Fee to Marry his Daughter and it thence also appears that tho this Tax is said to be given for themselves and the whole Community of the Kingdom yet it was by the Community of Tenants in Capite alone because it was to be raised wholly upon Knights Fees so that hitherto in this Kings Reign there appears nothing that can plainly evince either the Summoning or being of any Commons in Parliament as now understood we are at least left at great uncertainties nay in my Opinion the proof is more strong on the Negative that there were none F. I wonder you should mention this Writ any more since I have already confuted the Doctors notion about it and proved that it was a general Tax granted by the Parliament upon the whole Kingdom and not laid either by or upon the Community of the Tenants in Capite alone nor does the way of Taxing by 40s upon every Knights Fee at all prove it for if it is to be understood of Lands only held by Knights Service then this Tax could not have extended to any other Estates as certainly it did since the King could by King Iohn's Charter have forced his Tenants in Capite to grant him an Aid towards this Marriage of his Daughter and if what you say be true could also have made all the Mesne Tenants of the Tenants in Capite to have contributed to it according to the Knights Fees they held and this without calling a Parliament at aâ— therefore pray give some better Authority then this for Iâ—e assure you I am not at all satisfied with it M. I will now give you the Writ the Doctor has discovered and by which it will plainly appear that this Tax granted in the 18th of this Kings Reign was given before ever the Commons were Summoned to it and for this the Learned Doctor has found out a loose bundle of Writs of this year directed to the Sheriffs of most Counties of England and they are the ancientest Extant or perhaps that ever were for in probability the calling of Knights Citizens and Burgesses according to that Example was discontinued from the 49th of Hen. III. unto this time by which two or three Knights were directed to be chosen for each County pray read the Writ it self since I look upon it as the first Pattern of this kind that of the 49th of Henry III. seeming to have been Written in haste without those Forms that were afterwards required in Writs of this kind and particularly in this Edwardus Dei Gratiâ Rex Angliae Dominus Hiberniae Dux Aquiâ—aniae Vice-comisi Westmâ—rlandiae Salutem Cum per Comites Barones quosdam alios de Proceribus Regni Nostri nuper fuisseâ—us super quibusdam Speciâ—liter requisiti super quibus tam cum iâ—sis quam cum aliis de Comitatibus Regni illius Colloquium haâ—ere volumus Tyactatâ—m tibi praecipimus quod duos vâ—l tres de Diâ—cretioribuâ— ad laborandum potentioribus Militibus de Comitatu praedicto â—ine delatione Eligi eos ad nes usque West monasterium venire facias ita quod sint ibidem à die Sancti Iohannis Bapt. prox futur in tres Septimanes ad ultimum cum plena potestate pro se Communiâ—ate Comitat. praedicti adconsulendum consentienoum pro se Communitate illâ hiis quae Comites Barones Pro. ere 's praedicti tunc dixerine concordanda habeas ibi hâ—c Breve Teste meipso apud Westmonast 14 die Jun. Anno. Regni Nostri 18. Whereby you may see in the first place that there was yet no certain number of Knights of Shires settled who were to be Summoned to appear at this Parliament And you may in the next place remember from a before mentioned Record of the 30th Ed. I. that on the first of this Month the King had Scutage then given him in full Parliament and now Fourteen days after at the Instance of the Earls Barons and other great Men of the Kingdom upon certain matters by them moved and propounded to him He Issued His Writs of Summons to the Sheriffâ— of the several Counties to cause to be chosen two or three Knights of each Counties to come to him at Westminster three Weeks after St. Iohn Baptist at farthest We may also further observe from this Writ that it is most probable though it is not here absolutely said so that the King was moved by the Earls Barons and great Men of the Kingdom to call these Knights to this Parliament and that as this Writ is the first to be found after that of the 49th of Henry III. so it really was the first Writ of Summons after that time for the Election of Knights to represent the several Counties In the next place that there could â—e no Citizens nor Burgesses chosen or sent to this Parliament by Vertue of this Writ as they were afterwards by directions contained in the Writs sent to the Sheriffs for Electing Knights of the Shires Lastly that by this Writ the Knights were to come to the King at Westminster three Weeks after St. Iohn Baptist at furthest which was the 15th of Iuly also that in the same year between the time of the date of the Writ and the time appointed for Meeting of the Knights The Statute of Westminster the third was made as may appear by this Clause at the beginning Dominus Rex in Parliamento suo apud West monasterium post Pascha-Aâ—o Regni sui Decimo octavo videlicet in Quindena Sancti Iohannis Baptist. that is the 8th of Iuly ad Instantiam Magnatum Regni sui Concessiâ— Providit Statuit Quod de caetero liceat unicuique libero homini c. So that this was the same full Parliament which gave the King Scutage on the first of Iune and then the King and Barons without the Commons made this Statute or the Knights had another Summons after the Date of this Writ for before that they were not in Parliament or the Knights came a Week before they had need to have done but neither of the latter are probable seeing the Knights then were great Husbands of their time and Expences and were not very forward to undertake this Service as being constantly bound with or engaged by Sureties or Manucaptors for the performance of it and their appearance in Parliament and therefore it seems reasonable to conclude that this Law was made without them and before their coming to Parliament So much of this Writ from which as well as divers following Writs and other Records it is evident that it was from this Kings Authority and at this very time that the House of Commons came to be fixed and establish'd in the present constant Form it is now and hath been in for many Kings Reigns and than the King in this Age was not altogether confin'd to any Number of Knights
tho' they themselves remained free men but your Dr. from whom you borrow this is very much out in his application of those passages he cites for neither of those Authors do affirm this of all owners of Lands whatsoever but only there to give us the Original of Soccage Tennants on the Kings Demeasnes as appears by Bracton's Title to that Chapter from whence the Dr. cites this passage which is de diversis conditionibus personarum tenentium in dominicis Domini Regis and the first words of this chapter make it yet plainer beginning thus in Dominico Domini Regis plura sunt genera hominum sunt enim ibi servi sive Nativi ante Conquestum in Conquestu post Conquestum and under these last ranges the persons you mentioned but Fleta is more exact in his Chapter de Sokemannis where he tells us that these men were Tenants of the Kings Ancient Mannors in Demeasne quia hujusmodi cultores Regis dignoscuntur provisa fuit quies nâ— sectas facerent ad Comitatum vel hundredum tamen pro terra quorum congregationem tune socam appellarunt hinc est quod Sokemanni hodie dicuntur esse So that tho' King William might permit his Ancient Tenants to be thus outed of their Estates they held in his own Demeasnes yet does it not therefore follow that he took away the Estates of the Ancient Owners all over England of whatsoever Tenure they were or of whomsoever held But as for your quotation out of Mat. Paris it proves no more than what I readily grant that King William after his return out of Normandy liberally rewarded his Followers with the Estates of the English which might he only of such as fought against him at the Battle of Hastings and as for that little which was left them which he says was put under the Yoak of a perpetual servitude he means no more by this expression than that new Tenure of Knights service which King William imposed upon them as this Author in the very next leaf speaking of the Lands of the Bishopricks and Abbies which were held before free from all secular servitude sub servitute statuit Militari and therefore you seem to contradict your self when contrary to your own Author Sir William Dugdale you deny the truth of any part of the Story because that in Doomesday book the name of Edwin of Sharnborn is not to be found and that William de Albeni is not named amongst the owners of that Mannor which is not material since this William might obtain a share therein after this Survey was made and as for Sharnborn himself his not being there mentioned is no argument that he had no Lands within that Mannor or the other that is mentioned in that Narrative since oftentimes the chief Lords of the Fee are only mentioned in Doomesday book tho' all the Proprietors under them are not particularly named but it is in vain to discourse any longer with you upon the Subject of your Conquerors taking away the Lands of English owners I have given you my opinion and the reasons against it and if you are not of my mind I cannot help it therefore pray go on to your next head and shew me by sufficient Authorities that King William as a Conqueror altered all the Laws and Customs of this Kingdom M. I will not undertake to prove that he altered all the Laws of England and brought in quite new ones yet that he did so in great part and that by his sole Authority I think I can prove by sufficient Testimonies and therefore I shall begin with that of Eadmer a Monk of Canterbury a companion of Archbishop Lanfranc's who tells us in his History that William designing to establish in England those Usages and Laws which his Ancestors and he observed in Normandy made such persons Bishops Abbots and other Principal men through the whole Nation who could not be thought so unworthy as to be guilty of any reluctancy and disobedience to them knowing by whom and to what they were raised all Divine and Humane things he ordered at his pleasure And after the Historian hath recounted in what things he disallowed the Authority of the Pope and Archbishop he concludes thus But what he did in secular matters I forbear to write because it is not my purpose and because also any one may from what hath been delivered guess what he did in seculars From which I think nothing is plainer than that K. William did not only design to alter many things in the Laws and Customs of England but did also actually do it since to that end he made the Bishops Abbots and other Principal men who were to be Judges in all Courts such as he could wholly confide in now that K. William govern'd the Nation as Conqueror and did so live and repute himself so to be and as such brought in and imposed new Laws upon the People of this Nation is as clear as I shall prove from these particulars first The Justiciaries or cheif Justices the Chancellors the Lawyers the Ministerial Officers and under Judges Earls Sheriffs Bailiffs Hundre duties were all Normans from his first coming until above a hundred years after as I can make it out by particular instances and undeniable Reasons were not the Catalogues too long to be here inserted If therefore the Justiciaries Chancellors Earls Sheriffs Lords of Mannors such as heard Causes and gave Judgment were Normans if the Lawyers and Pleaders were also Normans the Pleadings and Judgments in their several Courts musts of necessity have been in that Language and the Law also I mean the Norman Law otherwise they had said and done they knew not what and Judged they knew not how especially when the controversies were to be determined by Military Men as Earls Sheriffs Lords of Mannors c. that understood not the English Tongue or Law or when the cheif Justiciary himself was a Military Man as it often happen'd and understood only the Norman Language and 't is hardly to be believed these Men would give themselves the trouble of learning and understanding the English Law and Language Secondly Tho' we have many Laws and Customs from the Northern People and North parts of Germany from whence both Saxons and Normans came yet after the Conquest the Bulk and Main of our Laws were brought hither from Normandy by the Conqueror from whence we received the Tenures and the manner of holding our Estates in every respect from whence also have we received the Customs incident to those Estates And likewise the Quality of them being most of them feudal and enjoyed under several Military Conditions and services so that of necessary consequence from thence we must receive the Laws also by which these Tenures and the Customs incident to them were regulated and by which every mans right in such Estates was secured according to the Nature of them from Normandy and brought in by the Conqueror we received most if not all
things being considered it is no wonder if the Judges and Clerks of Parliament who were in those days entrusted with the drawing up all Acts of Parliament being greater Masters of the French than Latin Tongues chose rather to draw them up in the former and thus it continued until the Reign of Henry the seventh when our Statutes began first to be drawn up and enrolled in English M I confess you have given me a greater light in this matter than I had before yet I suppose you cannot deny that the Tenure of Knights Service with those clogs that belong to it of Wardship Marriage and Relief were all derived from the Normans as appears by the grand customer of Normandy which I have already menâ—ioned so that tho' it be true that all these are now taken away by a late Statute of K. Charles the second yet since this Tenure and those services are not found among the Saxon Laws there cannot be a greater proof of the ancient power of the Conqueror or of the servitude imposed upon the Nation by him and therefore I look upon it as a very imprudent part of the late K. Charles to part with so great a tye which his Father and all his Predecessors had over the Persons and Estates of all the Nobility and Gentry of the Kingdom F. I shall not take upon me to decide whether it were Politickly done or not of K. Charles the second to part with the Wardship and Services of his Tenants by Knights Service but this much is certain that considering the abuses and corruptions that had crept into that Tenure by degrees since the first institution both by the unfit Marriages of the Heirs as also by the waste that was often times commited on the Wards Estate during his Minority it was certainly a very great grievance and burthen to the subject and considering how many of those Wardships were begged by hungry Courtiers they were of no considerable profit to the Crown and tho' I grant they were a very great tye or rather clog upon the Estates of the Nobility and Gentry of this Kingdom yet it did not thereby produce any such love or obedience as would retain the Tenents better in their duty before than since they were granted away for the forfeitures for Treason and Felony and also Fines for Alienations and are reserved to the Grown now as they were before and as for any love or respect which was anciently paid by the Heir how could there be any such thing since the King granted away the custody of the Heir and his Lands to persons who for the most part made a meer prey of them so that they were often Married against their consents and their Estates were delivered to them wasted and spoiled besides also what was exacted from them for reliefs and Ouster lismaines we need not wonder if it were rather a cause of secret discontent and hatred of the Kings Prerogative than otherwise and therefore I cannot think it was not so unpolitickly done by the King to render himself gracious and acceptable to his People upon his return to grant their request and pass that Act for taking away Wards and Liveries and to accept of a Revenue by excise of treble the value in stead of it But to come to the Original of Knights Service it self I do not think it was derived from the Normans since we are certain there were Thane Lands in England which were held of the King and that by Knights Service before King William's coming over and there were also middle Thanes who held of those Lords above them by the like Service insomuch that in the Laws of K. Knutâ— there is one concerning the Heriots which an Earl the Kings Thane as well as inferior Thanes were to pay not only to the King but to other inferiour Lords which are almost the same as were afterwards reserved by the Laws of K. Edward the Confessor confirmed by K. William as you will find them in Ingulph only there is no Gold reserved but only Horses and Arms whereas by the Law of K. Knute each E. was to pay two hundred Manenses of Gold each Kings Thane fifty and each inferiour Thane two pounds only note that he who is called E. in K. Knutes Laws is called a Count in these the Thane a Baron and the inferior Thane a Vauasor and that which is there called a 〈◊〉 is here termed a Relief And that this Tenure by Knights Service which is now called Escuage or Servitium Scuti was of ancient time named expeditio hominum cum scutis and was in use before the coming in of the Danes is also as certain for Sir E. Coke in his fourth Inst. tells us that we may in the Charter of K. Kenulph who Anno Domini 821. granted to the Abbot of Abbindon many Mannors and Lands and reserved quod expeditionem duodecim virorum cum tantis scutis exerceant antiqâ—os pontes arces renovent and also he mentions a like Charter of K. Ethelred to a Knight called Athelâ—eâ— Anno Domini 995 so that you see not only Spiritual Persons and great Thanes or Barons but also Knights held Lands by the service of so many men before your Conqueror and your Dr. also himself allows it for in his answer to Mr. P. in all ancient Charters in the Saxon times he translates the word fidelâ—s by Tenants in Capite or Military Service M. I will not deny that Military Fees were in use before the Conquest and also that the feudal Law did obtain here in many things and therefore I am so far of the Doctors opinion who in his Gossary Tit. Feudal Laws tells us The Feudal Law obtained to most Nations of Europe and in Normandy was in its full Vigor at the time of the coming over of the Conqueror but afterwards grew more mild and qualified as also the Tenure it self a perfect description of which with all its incidents of Homage Relief Ward Marriage Escuage Ayds c. are to be found in the Grand Customer Cap. 29.33 34 35. and although there were Military Fiefs or Fees here in the Saxon times yet not in such manner as after the Conquest established here by William the Conqueror and according to the usage in Normandy when as it appears by Doomesday-book in every County he divided most if not all the Land of England amongst his Normans and Followers Now that this custom of Wardships is wholly derived from the Norman Conquest you shall find in Sir E. Cookes fourth Institutes in the same Chapter you last cited as you may here read You have heard before de regali servitio before the Conquest but that regalâ— servicium which was Knights service drew unto it relief but neither Wardship of the Body or of the Land as hath been said it is true that the Conqueror in respect of that Royal service as a badge of the Conquest took the Wardship of the Land and the Marriage of the
nuncios ad Iohannem Ducem Normandiae c. Where you see he calls him no more than Duke of Normandy But to come to the Election of his Son Prince Henry if this be all you have to prove a Divine right of Succession in Henry the IIId I doub it will do you but little service for according to your own principles it must have been lodged some where else than in this Prince For when King Iohn his Father died Eleanor the Sister of Duke Arthur was then alive and died not till the 25 th year of King Henrys Reign a close Prisoner in Bristol Castle as Matthew Paris relates So that it is apparent he could have no such Divine Hereditary Right as you suppose and therefore perhaps his Father to strengthen his Title and to recommend him the more to the Peoples savour appointed him his Successor by his last Testament And Matthew Paris and Matthew Westminster tell us that when King Iohn died Henricum Primegenitum suum Regni constituit haeredem So that it seems there was then no such Hereditary Right for if it had what need had there been of this Testament But for all this Divine Right I do not find that this poor Princess Eleanor had any of the Bishops or great Lords to take her part but all the dispute then was at this great Convention at Gloucester whether they should abjure Prince Lewis whom most of them had before chosen for their Lord and adhere to Prince Henry there present before them as Matthew Paris tells us Erat autem tâ tempestate inter Optimates Angliae fluctuatio maxima cui se Regi committeâ—ent Iuvenine Henrico An Domino Ludovico So that it seems by the relation our Historians give us of this matter it was not from any great sense that the Clergy and Nobility had of the justness of Prince Henry's Title that made them agree to chuse him King but the hatred they then bore to Prince Lewis when they found he had broken his contract with them and put all the strong places of the Kingdom in the hands of French men and treated the English Nobility with scorn and contempt And therefore no wonder if they preferr'd an innocent young Prince of their own Nation who had never been guilty of his Fathers faults before a Stranger whose fraudulent dealing with them they had found not to answer their expectations and therefore Mat. Westminster tells us That Omnes nobiles Terrae in brevi ipsi Iuveni Regi Hemico qui nihil culpae versus tos merueras fideliter adhaeserunt But to prove farther that this King came in by Election and not by Succession appears by what our Historians relate concerning the manner of it Henry de Knyghton in his Chronicle tells us that on the Feast of St. Simon and Iude Henry Son of King Iohn in Regem erigitur viribus industria Gualonis Papâ—e Legati which plainly shews that he was not King before and I desire no better an authority than your own Author Matthew Westminster who says that he was in Regem inunctus anointed to be King which shews that he thought him not so before his Coronation and though I grant Mat. Paris makes the Earl Marshal to begin his Speech with those words Ecce Rex vester as you relate them yet this was no more than an allusion to that place in St. Iohn ch 19. Behold your King it being usual in those days to begin their Speeches with a Text of Scripture So that the Earl did not intend to be understood literally for then he should have in this Speech contradicted what he had said bâ—fore for though to prepossess their minds he says of the young Prince there present Behold your King Yet it is plain that how much soever he thought the Kingdom his right yet that it could not be conferred upon him without their choice as appears by these words which you your self have made use of viz. You ought to chuse him to whom the Kingdom is due And it is evident by the assent which the whole Assembly gave to the reasons declared by him in this Speech that it was their choice alone that made him King their Votes being given in these words Fiat Rex which had been altogether needless had they looked upon him as King already And therefore the Speech of Hubert de Burgh which you mention may very well be reconciled to this Hypothesis of supposing a necessity of an Election and Coronation to confer a full and legal right in those times For when he said That the King if dead had yet left behind him Children who ought to succeed him This if strictly taken is altogether false for Eleanor the true Heiress of the Crown according to your rule of Succession was then alive But if taken in a limitted sense is true that is the Children ought to succeed if the great Counsel of the Nation thought fit without whose consent though they might have Ius ad rem yet had they not Ius in re This Election and Coronation being then looked upon as Livery and Seisen at this day is to an Estate in Fee without which though the writings are sealed and delivered the Land will not pass To conclude I pray answer me that question I have so long put though without any reply viz. why before this Election and Coronation was perform'd none of those Princes that came to the Crown by your supposed Right of Succession are call'd by any higher Title than Dukes of Normandy or Earls of Poictou So that from what has been here said I think it plainly appears that no less than seven of the eight Princes from your William the Conqueror reckoning him for one to King Henry the III. have owed their Title to the Crown not to any right of Succession but either to the Election of the People alone or else to the will or designation of the last King confirm'd by the general consent of the People given thereunto and without which it would not have been good according to the ancient custom of the English Saxons before your Conquest where besides the Testament of the King deceased there was also required the consent or Election of the great Council So that you see here was no alteration made in the form of our chusing our Kings after your Conquest from what it was before for no less than seven or eighâ— descents and when you can answer this I shall then come over to your opinion M. In answer to your Question I shall not deny but that all our Historians give all the Kings you mention no higher Titles than Dukes of Normandy or Earls of Poictou before their Coronations which though I suppose they might do from a foolish superstition of that Age which made them fancy that none were properly to be called Kings until they had been Anointed and solemnly Crown'd by a Bishop yet that they looked upon them as Kings indeed appears in that they