Term. Pasc. 7. 8. Jâ—hannis 9. dorso claims against William Scoteny the Capital Messuage which he ought to have in Steinton with the Appurtenances as that which belongs to his elder share of the Barony which was Lambert Scoteny's These surely were Brothers not Sisters Sons being of the same Name and the Claim being immediately from the seizin of Scoteny and this Claim was allowed as the Record shews Besides tho 't is generally believed that Wardship was in use before the Reign of H. 3. And Mr. Sylas Taylor in his History of Gavelkind Hist. of Gavelkind p. 104. thinks he proves it to have been before the supposed Conquest Yet we have good Authority that there was no express Law for this before 4. H. 3. Kâ—ighton fo 2430. Aâ— 1219. 4 H. 3. Magnates Angliae concesserunt Regi Henrico Wardas hoeredum terrarum suarum quod fuit initium multorum malorum in Angliâ The great men of England granted King Henry the Wardships of their Heirs and Lands which was the beginning of many Evils in England 2. We find Custom prevailing beyond what was the foreign Feudal Law at least of some places for which I may instance in Relief paid by the Heir male after the Death of his Ancestors Whereas I find it in Cujacius payable only by the Heir female Cujaâ—iâ—s fo 498. Siquis sine filio Masculo mortuus fuerit reliquerit filiam filia non habeat beneficium patris nisi à domino redimerit If any one dye without Heir male and leaves a Daughter let her not have her Fathers Benefice unless she redeem it of the Lord. That Relief was called Redemption appears by the Law of H. 1. Leges fo 1. cap. 1. Haeres non redimet terram suam sicut faciebat tempore fratris mei sed legitimâ justâ relevatione relevabit eam It seems in King Rufus his time this payment was so unreasonable that 't was a Redemption in a strict sense and a kind of Purchase of the Land but now 't was to be a lawful and just Relief 2. The jus feodale mentioned in the Glossary if it be not the Law generally received where Feuds were must be the Law of England in particular But 't is to be observed that Choppinus knocks this down who tells us that amongst the French Juridica potestas was not imply'd by a Feud Against Petyt p. 31. in margin But our Apollo teacheth us that our ancient Tenures were from Normandy and that was govern'd by the French Feudal Law being of the French King's Feud Wherefore the Juridica Potestas or jus dicere was not here Ex ipso jure feodali nay in the same place the French Feudist tells us Choppinus de Jurisdict Andeg fo 455. Interdum certè Baro Castellanum observat superiorem 'T is certain sometimes a Baron is under a Castellan's Feud And he gives the Reason why it may be so which is that a Feud carries not with it ib. so 450. the Potestas juridica which reason is very apparent in that a Castellan is of a degree lower than a Baron Take Juridica potestas in the same Sense with jus dicere in the Glossary a Baron was to take Laws from his Inferiour Leges H. 1. cap. and to have his Lands taken from him without Forfeiture as it appears by the Law of Hen. 1. that being one of the Judges in the County Court was not upon the Account of Resiance but the having Free land there so it must have been in the great County Court of Cheshire though they had an extraordinary Power there Admit therefore that a Lord of another County were Feudal Tenant to a Commoner there as 't is not to be doubted but he might have been should this Lord have been represented by his Capital Lord there Glos. 2 part Consentire quisque vid. Or admit a Lord there had no Land but what he held of a Commoner as of such an one as Thomas de Furnival Jani Angl. facies nova p. Sed vide the Record more at large who had several very considerable Mannors might Thomas de Furnival represent the Lord in the Lord's House But farther taking the Jus Feodale to be as in force with us unless the positive Law giving so large a Power be shewn 't is a begging the Question for 't is to prove the Right which our wise Antagonist would exclude from the Question as being indisputable I suppose by the Fact whereas the fancied Right is used in his Hotch-potch Glossary to induce us to the belief of the Fact But from what Sourse is this Right deriv'd SECT 5. An Improvement of the Notion of Jus Feodale THat I may make our mighty man of Letters out of Love with his darling Glossaries 2 Part of the Glos. and his own I shall observe to him That according to that for the Credit of which he pawns his own Truth or his Friends All the Lord 's Right of Representing their Tenants in the Great Councils Against Mr. Petyt p. 31. is meerly Feudal ex ipso jure feodali But all Feuds were enjoy'd under several Military Conditions or Services Being then these were the onely Feudal Tenures and yet as appears by Domesday-Book and all manner of Authority there were Freemen who held in free or else in common Socage though the Dr. sayes all the Freemen of the Kingdom were Tenants by Military Service These Socagers were not chargeable by any without their own consent But like men of another Government and it seems he will afford them nothing here they though called were not obliged to come to the Great Council which was the Curia of the King 's Feudal Tenants onely Nay they were never at it And therefore no wonder if the Laws were obsâ—rved by and exacted upon Against Mr. Petyt p. 43. onely the Normans themselves For the others could not be bound and if they consented to any Charge for Defence of the Government it could be onely in what way they pleased to consent either in a Body by themselves or united with the Vassals or else severally at home as a meer Benevolence And there being free and common Socage Tenants before the Norman's Entrance and since continually thus it must alwayes have been CHAP. III. That Domesday-Book to which he appeals manifestly destroyes the Foundation of his Pernicious Principles SECT 1. SInce our Tenures and the manner of holding our Estates Against Mr. Petyt p. 31. in every respect with the Customes incident to those Estates are said to be brought in by the Conquest and not onely most but all free Estates must have been feudal as Knights Service which is made the onely feudal was in the time of William the First the onely free Service ib. p. 39. What I have said of Feuds in the last Chapter doth directly reach the Controversie between us though our Author who has an excellent faculty of overthrowing his own Arguments
of the Rent of Serjanties assest by Robert Passelewe you do not distrain Jacob de Archaungere for two Marks and an half for the Tenement which he holds of us by Serjanty in Archamgere in the County of Southampton by the Charter of the Blessed King Edward to the Ancestors of this Jacob but for ever free the said Jacob from the foresaid two Marks and an half because we have confirmed the Charter of the forenamed St. Edward and will have it inviolably observed Here is an inspeximus in effect of the Confessor's Charter and the Confirmation lies in the Judgment that this was that King's Charter Whether the Serjanty here mention'd were the greater In Kenulph the Mercian King's Charter a discharge of all Services but the Expedition of 12 men with Shields Burgâ—ote c. White 's Sacred Law p. 149. which was Military Tenure for such there was before William's Entrance Mr. Selden indeed opposes this and contends that what lay upon Lands then was no Tenure from any Reservation but onely what the Law of the Kingdom had made incident to all Lands Yet I see not how that will solve a special Reservation of a certain number of men Or whether the Serjanty were the Little or Petit Serjanty is not within our Dispute because either way here is sufficient Evidence that there was a Property left in the English notwithstanding the Clamour of a Conquest And that we did not receive our Tenures Against Petit. p. 31. and the manner of holding our Estates in every respect from Normandy brought in by the Conquerour For this man held in the same manner as his Ancestors did in the time of St. Edward And with this agree good Authors Gulielm Pictaviensis p. 208. Nulli Gallo datum quod Anglo cuiquam injuste fuerit ablatum There was not given to any French-man what was unjustly taken from any English-man Now this was a Poictovin Against Petyt p. 35. many of which came in with Duke William and is more to be credited in this matter than the English Monks who since he reduc'd the Bishopricks and great Abbies to Baronies thought this Injury done to the Church as they took it was no way to be accounted for unless he were represented as taking from the Laity their Property which they thought a much lower instance of his Power than giving this Law to the Clergy God's special Lot and Portion But on the other side this Poictovin was more likely for the Glory of William's and his Country-mens Arms to represent them as great as might be in the number of their Slaves and to have a whole Nation of them is doubtless a glorious thing in the Doctor 's eye And with this Poictovin may be joyned honest Knighton Knighton p. 2343. lib. 2. cap. 2. who sayes Quidam possessiones habentes de dicto Willielmo seu ab aliis Dominis quidam vero ex emptione habentes sive in Officiis sub spe habendi remanserunt There were some who had Possessions of the said William but some who had them by Purchase or else who remain'd in Offices under the hope of having some as their Offices might enable them to purchase Here some of the Normans were forc'd to purchase otherwise they had gone without Possessions And this must have been of the English otherwise they would have divided the Land amongst themselves with their Prince's consent and need not have made other payment than the Venture of their Lives CHAP. V. The Socmen enjoyed Estates of Titles prior to the suppos'd Conquest BUT besides the uncontroulable Authority of Domesday-book and the Testimony of Authors well back'd with a plain Record with the Doctor 's good leave I shall add another Argument to prove the continuance of the English Rights or that William govern'd not as a Conquerour He may know that there were such men as Sokemanni whose Lands were partible and who held not by Knights Service Whereas King William granted out the whole Kingdom as the Doctor fondly imagines by Knights Service and the Lands of such Tenants descended to the eldest Son wherefore the Sokemanni must needs enjoy their Estates upon Titles prior to King William's not deriving under his Grant since their Lands to obtain that Tenure must have been anciently divided before the time of H. 2. But Glaâ—vil lib. 7. cap. 2. infra if there were any Evidence to the contrary there could have been no Prescription to the Tenure And surely if it was no ancienter than King William's Title the Evidences of the contrary could not be lost Suppose Lands holden in Free-socage were forfeited to the King in which Case Lambert's Peramb of Kent Mr. Lambert yields that the Tenure may be alter'd and he granted it out to hold by Knights Service how could a Custom prevail to alter this Tenure contrary to the very Grant If they could produce their Deeds they shew'd themselves to be Tenants by Knights Service And there were so many Sockemanni even in one County that of Kent that though some Grantees might lose their Deeds yet not so many as there were distinct Estates in Socage For Proof of the Premisses to my Conclusion 1. That there were Sokemanni before William nay that for the most part at least Land-owners were such appears from St. Edward's Law This obliged all men to bear Arms Leges Sancti Edwardi de Heretochiis habeant Haeredes ejus pecuniam terram ejus sine aliquâ diminutione rectè divident inter se. proportionably to their real or personal Estate which last together with the Land of him that dyed in the Wars was to be divided among his Heirs And surely the Law does not suppose that they must always be female Heirs Such as dy'd in the Wars who were Tenants by Knights Service according to our Authors Sense of Qui militare servitium debebant were Sokemanni holding in free Socage Glanvil lib. 7. cap. 2. as Glanvil explains it Si fuerit liber Sokemannus tunc quidem dividetur haereditas inter omnes filios quotquot sunt per partes equales si fuerit Socagium id antiquitus divisum If a man be a free Sokeman then indeed his Inheritance shall be divided amongst all the Sons if it be Socage and that anciently divided It was not improper to say if it be Socage because a Sokeman in respect of some Lands might have others not held in free Socage This is sufficient Evidence that such there were after the Noise of Conquest and that the Lands were to be anciently divided 2. The Estates deriv'd from the Conquest Glos. Tit. Parl. Terram totam ita disposuit ut suum quisque patrimonium de Rege teneret in Capite were according to our bulky Author held by Knights Service Nay the second part of the Glossary which the Dr. invidiously imputes to Sir Henry Spelman tells us that though William was no Conquerour yet he divided out and disposed of all the Land to his great
of the King I take leave to observe that the Right of Precedency from within the Reign of H. 3. nay though before the 49th is no way inconsistent with the Belief that many Lords who had Right till a Settlement then made were left out afterwards at the King's Pleasure that is had no special Summons yet tbey could not be denied their Right of being there in Representation Be it that the Heires of Bigod and himself Jan. Angl. faciâ—s nova p. 257. 262. were Tenants in chief which as I thought at least I shew'd formerly could not since the 49th have Right to come to Parliament quatenus Tenants in chief yet when any of the Heirs came upon particular Summons to Parliament that is 6 R. 2. cap. 4. All Singular Persons and Commonalties which shall from henceforth have the Summons of Parliament c. the King 's Calling them out as Singular Persons they were to come as Tenants in Capite in the manner as they be bounden and have been of old time accustomed And they that refused shouldbe amerc'd as is the Penalty By Manner is meant 1. in the same Quality Lords as Lords and 2. in that Degree of the same Quality which of old time had been accustomed 3. The Manner also implies the manner of enjoying any Power in Parliament Thus the Lords were of old accustomed to enjoy the ordinary Power in a Manner properly Judicial and that the supream Manner too Whereas the Commons had of that only what was needful to maintain their Priviledges as to the Legislature the Manner was the same Neither was above or could give Law to the other But in the judicial Power in Parliament the Commoners were no more to be joyned with the Lords than with the Tenants in Chief in the King 's ordinary Court out of it Vid. infra in the body of the Book p. since the same Curia Regis delegated from the Lords and answering to that which was pro more us'd to exercise that Power both in Parliament and out of it so that wherever they sate they were in the same Court The Commons could not exercise this Power with them out of Parliament therefore not in it Some will say that no more is intended by this Statute than that every one who receives Summons must come as was his Duty and had been of old Whereas 't is certain they who did not come as they were bound were amerceable before at the Common Law nor was it likely that the King wanted a Law to make good that Prerogative which to be sure he had over his Tenants by their very Tenures and could seize upon their Lands for Contempt of his lawful Power as the Bishops were sometimes threatned Vid. 4. â—ust Inde se capiet ad Baronias su 8. And this is enough against this Author since he makes the King's Tenants in Capite to have been all that came to Parliament even by Representation till the 8th of Hen. 6. Against Mr. Petyt p. 42. which 't is his setled Design to prove though sometimes he contradicts himself and yields that their Tenants by Knights Service came too Besides the genuine Import of the Manner leads me to this sense especially as 't is joyned with Bounden For he who was a Commmoner till the Summons was not bound to come as a Lord nay was not a Lord when he came As appears by the Writs to the Lords Assistants in the same Form with those which the Lords have So that the Statute in my sense is manifestly in Affirmance of the Common Law I shall lay at the Feet of the Lords my Sentiments in relation to their House either as I agree with or oppose one to whom that High Order probably will not think themselves much obliged I shake Hands with him Against Petyt p. 228. and agree that King Hen. 3. a little before his Death began to leave out such Earls and Barons as he pleased but I believe not this upon his Ground which is as if it were meerly from Royal Authority that is the Prerogative which that King had from of Old p. 229. without the Actual Consent of the People For I say 't was given him by Parliament Jâ—es Rep. f. 103. concernthe Earldom of Oxford Princes Case 8. Rep. either in the 48th or 49th Nor doth Rex statuit in the least discourage me in this Opinion being many Acts of Parliament have pass'd with the joint Authority of King Lords and Commons and yet the Enacting Part has had words of the same Import with this 2. I differ from my Opponent when he would have it believed p. 228. supra that Ed. 1. and his Successors observed this constantly or as he exprest the same thing before p. 227. The Practice was then and ever since accordingly And in this he has dealt as unfairly by Mr. Camden whom he quotes as I doubt not but 't will be found he has done by Mr. Petyt and me For Mr. Camden tells us That he has this out of an Author sufficiently Ancient and thinks not that he differs from the Authority which he receives when he says 'T was thus only donec till there was a setled Right And this he makes 11 R. 2. but this the Doctor vouchsafes not to take notice of But how cheap does he make his applauded Reasonings when he would prove it to be thus ever to this very time or the time of publishing his Libel because it was in the Reigns of Henry 3. Ed. 1. and his Successors to the time of that Old Authors Writing who if we credit Mr. Camden wrote before 11 Richard 2. of which he might be assured by the way of Writing in several Kings Reigns respectively to which Antiquaries are no Strangers or else by the Date annex'd in the same Hand But to prove that the Learned Clarenceux knew more of these things than this Pretender I shall shew that Rights were setled for coming to the House of Lords long since Against Mr. Petyt p. 175. But he will say possibly That he has anticipated and evaded my Proof as my Arguments upon the grand Question were in his Belief Against Jan. c. p. 47. by saying in one place Against Mr. Petyt p. 227. In those times probably the King might omit to summon whom he would I think he swarms with Contradictions as a Judgment upon his Vndertaking For he says That by what he calls the New Government 't was appointed and ordained ib. p. 110. not only that the Kings should call whom they pleased Which cannot properly be meant of Calling but once by Patent or Writ and the giving a Right from thenceforth to come afterwards because there was and is yet a new Call to every Lord for every distinct Parliament But he is express p. 227. That all those Earlâ— and Barons of the Kingdom of England to which the King thought fit to direct Writs of Summons should come
required or what was therein contained Upon this Habilo Concâ—â—io mature Advice being taken and that of the great Council for that at least consented â—n not opposing the King sent his Precepts to the Sheriffs throughout the Kingdom to cause an Inquest of twelve Knights or else of twelve lawful men â—hat is Free-holders to be return'd 12 Milites vel legales homines out of every County respectively concernâ—ng the Liberties which were in Engâ—and in the time of King Henry that King's Grand-father The Charter mentioned by our Adversary was 9. H. 3. And so after this Tryal the Precept for which was 〈◊〉 indeed the actual Confirmation of what they found or Judgment upon it was not till two years after â—ut then the Clerus Populus cum Magnatibus where by the way the Populus could not be the Magnates â—he Inferiour Clergy and Laity with the great ones go on upon their former Issue and would give no Supply to the King's Wants till he would grant Petitas Libertates the Liberties they had before sued for or demanded not barely as a Confirmation of King John's Charter M. Par. Supra p. 305. but indeed these very Liberties which they pleaded to have been such in the time of H. 2. The Denial of which occasioned the fighting for them against King John were in Substance no way different from the Grant made by King John in Affirmance of the Common Law And so the Charter of H. 3. was in nullo dissimilis to King John's and if there were any Difference the Clause by which the great Priviledge of Tenants in Capite is argued for being omitted 't is a Sign that admit it constituted them a full Parliament this was not their Right in the time of H. 2. nor return'd so to have been but was the only thing extorted by Force and fell with it This were enough to set aside all his Arguments nay and that Language too which serves instead of them but I cannot deny my Reader and my self the Pleasure of observing him more particularly and if it may be of knowing him intus incute His two main Designs if he be steady to any but to contradict right or wrong are 1. To prove that William the First took away from the English their Estates â—nd as he imposed the Tenures and Manâ—er of holding our Estates in every respect so he did all the Customs incident to those Estates The Customs I thought had been within the Manner but let that go Des Cart. Principiae Phil. p. 17. Per modos planè idem intelligimus quod aliâ—i per attributa vel qualitates c. the Manner implies the Quality as he might have been taught long since â—y Des Cartes this extended to all the Estates derived or come to any now â—nd yet in the very same page 't is but most of them being feudal not all I have already shew'd his Denyal of the Conâ—ueror's Right to take any and thus â—his Mountain is finely brought to Bed by the Dr. 2. As a Consequent upon William's dividing the Land amongst his Followâ—rs he would shew that this King's Grantees and that in Capite by Knights Service were the only Members of the Great Councils Against Mr. Petyt p. 2. and that no others had any Communication in State Affairs unless they were represented by the Tenants iâ— Capite Against Jan. c. p. 12. In another place No doubt but the Tenants in Capite were the General Council of the Nation If therefore he own that there were Councils more general than such as were compos'd of Tenants in Capite only does he not yield the Cause Not to repeat his Concession for Towns incorporate not holding in Capite he yields it for single Persons who still held not by that Tenure In many places he grants As p. 112. That all the Nobility of England met to treat with the King Against Mr. Petyt p. 131. or to the like purpose Farther that the Baronage or Nobility included the Tenants in Capite and sucâ— great men as held of them by Military Tenure So that in effect if the Tenure or as he expresses himself A Tenemenâ— or Possession Glos. p. 10. neither added to or detracted from the Person of any if free oâ— bound according to his Blood or Extraction An ordinary Free-holder in free or common Socage might as well have been provided for as to a Right in coming to Parliament as a Tenant by Knights Service of the King's Tenant in Chief But he tells us then theâ— must be great men holding by these Services But to shew that he insists not upon this finding a vast number of men at the passing of King John's Charter which was Inter Regem liberos homines totius regni Glos. p. 26. he yields that the Retiâ—ue and Tenants in Military Service were Members of the Council though upon second Thoughts he tells me these liberi homines were the same which â—he King calls in his Charter Liberi homines nostri Against Jan. c. p. 9. These Liberi homines nostri were Tenants in Capite So that the Tenants of Tenants in Capite were Tenants in Capite and this suppose explains that Passage where â—e says Against Mr. Petyt p. 176. Whoever held of the Tenants in Capite by mean Tenure in Military Service held of those Barons or Tenants in Capite by the same or like Tenure that themselves held of the King That is every Tenant by Knight's Service of the King's Tenant by Knight's Service held in Knight's Service which â—dentical Proposition I heartily thank â—im for or else every such Tenant of â—he King's Tenant in Capite held of the King in Capite that is immediately and â—ot immediately in the same respect But these Tenants of Subjects such as were Members of the great Council were however concluded by the Acts of their Lords Against Mr. Petyt P. 113. They that held of the Tenants in Capite by Knights Service were bound by their Acts viz. The Acts of the Tenants in Capite that is These Tenants were Members of the great Council and no Members as their Lords represented them and yet did not represent them but they came themselves But to be sure none but Tenants by Knights Service who were Homagers and sworn to obey their Lords as the ordinary Free-holders were to keep the Laws and defend the Monarchy Jurati fratres-franck-pledges and the Peace of the Kingdom were in his Sense bound by the Acts of their Lords So that there was a necessity for the Bull and Multitude of Free-men or small Free-holders Glos. p. 31. to be bound with Sureties to their good Behaviour in such manner as the Law had requir'd amongst themselves otherwise the Government could not secure it self against their Violations of the Laws they neither meeting in the Great Councils nor being bound by the Acts of such as met any more than the Tenants in
〈◊〉 la Benche Hugo D'aule junior 〈◊〉 centur tum vocentur audiantur ibidenâ— But to Partiality Against Mr. Petyt p. 79. hence 't is clear 〈◊〉 King and his Council were equally Judgeâ— when it was necessary to call them and 〈◊〉 them to come as they were of their Right and Pretences to come The King being sole and absolute â—udge of the Necessity of calling Parliaments he makes the Calling such as â—ould prove their Right according to â—aw to come as often as his Majesty â—all please to call a Parliament to be â—s much at the Disposal of the King as what is his undoubted Prerogative or â—lse he denies the King's Prerogative â—o call Parliaments at his Pleasure if he â—o not contend that he may leave out â—â—ose who had with him the greatest â—ight Tenants in Capite from the Parlâ—amentary Summons And this being â—rescribed to from before the 49. of â—en 3. between which time and the 6. of King John there was no Alteraâ—on in the Way or Right of coming to â—arliament How can he free himself â—â—om contradicting that Way and Manâ—er which he says was setled then If to evade it he say Though 't is a â—ight according to the common Rules 〈◊〉 Law yet 't is supersedable by Preroâ—tive I suppose my Superiours will give 〈◊〉 an Answer if upon this Account it â—ill be no Contradiction however â—e have enough to make us laugh while at other Particulars And thus has our Author like another Don Quixot encountring the Windmils been miserably mawld with hiâ— own Whymsies returning too quick upon him nor can Sancho Pancho hiâ— Squire afford him any great Assistanceâ— by curing some literal Mistakes The Bookseller to the Reader which are but outward Scratches while the inward Bruises remain CHAP. II. Of the Reputed Conquest SECT 1. HIS Notions of the Conquest whether more absurd or false I cannot say fall now under Consideration buâ— good man Against Mr. Petyt p. 43. fearing least that might 〈◊〉 too far improved he says this doth noâ— directly reach the Controversie between us Indeed if it were only about thâ— Members of the great Council before thâ— time for he takes in all the time before as far back as Mr. Petyt whom 〈◊〉 laughs at for it I will grant that thâ— were not to the purpose But what account can be given why the Folck-mote â—held at one certain time in the year when all the Bishops in the Kingdom were to meet together about the great Affairs of the Kingdom with all that â—ad any Property such as were to find Arms according to their real or personal Estate should of a sudden without a Conquest be turn'd into an Assembly of â—he King's Tenants upon the old legal Title I cannot comprehend If William the First divided all the â—ands of the whole Kingdom then 't is â—ot probable that others than they who derived from under him should have had any share in the Government But if he did not thus act like a Conâ—erour how is it to be imagined that 〈◊〉 old Socagers had nothing to do in â—he Great Councils Nay upon another account this is â—eedful to be considered for as a Conâ—uerour p. 39. we are told he made all the â—ree-men of his Kingdom Tenants in Military Service But if he was no Conâ—uerour in this Sense insisted on then â—ere must be a vast number of Proprieâ—â—rs that could not be any way bound but by their own free Act or Consent express or naturally implyed in yielding to be represented SECT 2. That he is so far proving the Title of William the first by Conquest that he makes him an Usurper all along proved by the History of the Conquest compared with what he says about the Titles of William 2. and Hen. 1. I would fain ask a serious Question or two about this same Conquest Had not William many Sharers in his Victories And can Mr. Dr. with all his Art and the Help of the Tutelary of a certain Profession Madam Cellier discover at the Birth which came from Conquering which from Vanquish'd Ancestors I 'll take it for granted King William conquer'd not all alone Sampson himselâ— could not have done it even with his wonder-working Jaw-bone But pray Mr. Dr. spare me another civil Question Do not you your selâ— make an Vsurper of your mighty Conquerour who swallowed all the Land of the Nation or devoured it between him and his Myrmidons You p. 35. in effect yield that his Title was by Election by reason of the Factions amongst the Saxon and Danish Nobility and People the Pope's Encouragement and siding with William and the Inclinableness of the Clergy to his Cause You might have added that before his Entrance many Normans were setled here in Power and Property It being thus William the Second who you say p. 51. had a Title by his own Sword and was chiefly assisted by the English p. 54. and Henry the First who cajold the great men and the Army had the same kind of Title with your mighty one Nor is there weight in the Objection that there was so small time between the Death of one and crowning another King p. 60. that it was not possible for the Clergy or all the People of England or any that represented the People of England to be at the Consecrations and Coronations Because whoever has had the Crown set on his Head by them that could meet upon the Occasion unless there had been a very powerful Interest or Faction against him has generally been owned for King and had a tacit universal Consent Besides all the Nation was not present when William the first was crowned any more than they were when he gain'd the Victory over Harold and therefore if these two Coronations are set aside as factious so many the other and so it must be For An Election is or ought to be Against Mr. Petyt p. 51. a free solemn deliberate sober sedate and the Lord knows what Act of the whole People where they have a Right whereby the major part of them do choose this or that Person or Thing for such or such Ends and Purposes and not an undermining crafty cheating and forcible Act of a Party or Faction for the setting up this or that Person or using this or that means for the obtaining their own Designs and Purposes Let him I say consider and make a difference between these two Acts of the whole People and a Faction and he may easily make a true Judgment of all the pretended Elections of our English Usurpers and all other Traitors whatever How easily may this Rule be applyed to the first William Against Mr. Petyt p. 35. whose Success was facilitated by the Factions among the Saxon and Danish Nobility and People as our Opponent confesses besides the Faction raised by the Pope for him and by his own Country-men who were here before and could not but be very busie for him if he
which were before nay sometimes less or none when formerly there were some as in Surrey Robert de Wate holds one House which paid all Services in the time of Kind Edward now nothing at all But to the Claims or Titles allowed Hantescire Aldredus frater Ode calumniatur unam virgatam terrae de hoc Manerio dicit se eam tenuisse die quâ Rex Edwardus fuit vivus mortuus disaisitus fuit postquam Rex Willielmus mare transiit ipse dirationavit coram reginâ inde est testis ejus Hugo de Port homines de toto hundredo Aldred the Brother of Ode claims one Rood of that Manner and says That he held it the day that King Edward was alive and dead and was disseized after that King William past the Seas and he recovered it before the Queen Hugo de Port is Witness of it and the whole Hundred 'T is to be observed that where the County or Hundred attests any mans Plea or Title this is a solemn Judgment in Domesday Book that being the way appointed of ascertaining Estates and Titles In the same County and Hundred Hugh de Port has his Claim allowed Hanc hidam calumniatur Hugo de Port dicens eam pertinere ad sua Maneria de Cerdeford Eschetune ibi eam tenuerunt sui antecessores hoc testantur tot ' Hundr ' This Hide Hugh de Port claims saying that it belongs to his Mannors of Cerdeford and Eschetune and there his Ancestors held it and this the whole Hundred testifies So the same Hugh claims three Houses and a Corner of a Field and one Rood and five Acres of Land of Turstin the Chamberlain and of this he brings the Hundred to witness that his Ancestors were seized Die quo Rex Edwardus fuit vivus mortuus The Tryal in this Couâ—ty between William de Chornet In Forcingbridge Hundr in Clatings and Picot the Sheriff of Cambridgeshire is very remarkable In isto Hundr in isto Maner tenet Picot 2 Virgat dimidium istam terram calumniatur Willielmus de Chornet dicens pertinere ad Maner de Cerdeford feudum Hugonis de Port per haereditatem sui antecessoris de hoc suum testimonium adduxit de melioribus antiquis hominibus totius Comitatûs Hundr Picot contraduxit suum testimonium de Villanis vili plebi de prepositis qui nolunt defendere per Sacramentum aut per Dei judicium quod ille qui tenuit terram liber homo fuit potuit ire cum terrâ quo voluit sed testes Willielmi nolunt accipere legem nisi Regis E. usque dum definiatur per Regem In that Hundred and in that Mannor Picot holds two Rood and a half of Land that Land William de Chornet claims saying that it belongs to the Mannor of Cerdeford of the Feud of Hugh de Port by the Inheritance of his Ancestor And of this produced his Testimony of the better and ancient men of the whole County and Hundred and Picot on the other side brought his of Villains and inferiour People and of Bailiffs who will not defend by Oath or by Gods Judgment which I take here not to be the Ordail but the Battail as we find the Tryals vel bello vel judicio that he who held the Land Which was the Issue against being of Hugh de Port's Feud was a Freeman and might go with it whither he would Here the County or Hundred testifies that the stress of de Chornet's Cause depends upon the Confessor's Law and so give the Title with him In the North and West riding of Yorkshire many Claims may be seen as of Earl Hugh which I take it was Hugh de Ferrers Henry de Ferrers being disseized in that County and 't is likely both claim'd by the same Title Hugh was a very considerable Free holder There are many others who are in like Circumstances as George Malet William Malet Orm and Bunde Osburn de Arcis William de Warren Ligulf Wido de Credun Percy Sortebrand Gislebert SECT 4. 'T is evident that King William did not so much as make a new Grant or Confirmation to men of what was theirs before the old Title being sufficiently firm hence in Amelbrice Hundred in Surrey tenuit Almaris sine dono Regis eò quod antecessor ejus Almar tenuit Almar held without the King's Grant because his Ancestor Almar held it In Glocestershire Brictric tenet de Rege 4 Hidas in Lechametone Geldant ipse tenuit earum 2 Hidas T. R. E. Ordric alias duas Rex Willielmus utramque eidem Brictric concessit pergens in Normaniam Brictric holds of the King in Lechametâ—ne four Hides and they pay a Quit-rent he held two Hides of them in the time of King Edward and Ordric the other two King William when he went into Normandy granted both that is the two Hides which Ordric held to Brictric so that Brictric enjoyed the other two not contained in the King's Grant upon his prior Title SECT 5. WHereas this Author is pleased to exercise his reflecting Faculty upon that Lawyer in Ed. 3. Reign Against Mr. Petyt p. 28. who affirmed That the Conquerour came not at all to out those who had right Possession Should be rightful but to out those which by their wrong doing had occupied any Land in Disinheritance of the King and of his Crown that is such Land as was forfeited to the Crown by their being in Arms against the King upon which p. 29. he says that this Judge spoke out of Design and studied and knew only popular and lucrative Law and not the Constitution of the Nation before his own time 'T is manifest that this free Censurer studies only parasitical Law and that if he were acquainted with Domesday book he would not censure this nor would challenge his Adversary to find any one Plea or Grant of the like Nature p. 26. with Swanborn's who pleaded p. 25. That he was never against the King Now 't is observable that we find many Forfeitures mentioned in this Book which were needless if the King seized without so in Essex in Barstable Hundr In Burâ de istis Hidis est una de hominibus forisfactis erga Regem in Bury one of those Hides belonged to the men that were forfâ—ited to the King and this was the way of Expression accordingly in the Active we find in Norfolk Earl Ralf held such Lands Quando se forisfecit But more particularly in Cambridgeshire in Wardune Hardwin holds of Richard this did not belong to Richard's Ancestor but Ralf Waders held it Die quo deliquit contra Regem that day on which he was in Arms or Rebellion offended against the King and so forfeited whereas otherwise it had continued with him but this compar'd with Indulphus the then King's Secretary makes a full proof Erle Yvo sends to Anjou to the Abbot of St. Nickolas
and gives a Cell Lands and Tenements for a Prior and five Monks in Spalding Wulketul Abbot of Croyland Indulphi Hist. fo 902. commences his Suit for this in Curia Regis all the Normans being confederate together justifie and approve of the Depredations Oppressions Slaughters and all other Injuries committed by Yvo Talbois against the Croylanders and as in the body of Behemoth one Feen is joyned to another they refute the Truth And that which added to the Heap of the Calamity of Croyland was the cruel beheading of Erle Walden of Croyland who was very kind to all the Religions and was chiefly the best and most worthy Friend to the Monastery of Croyland and although Arch-bishop Lanfranc his Confessor asserted that he was free from all Faction and Conspiracy and if he died in the Cause that he would be a Martyr yet his most impious Wife thirsting after another Marriage and therefore most wickedly hastening the Death of her Husband Also some Normans gaping after his Counties of Northampton and Huntington According to our Author he had all the Lands of these Counties whereas the King had some especially the Anjovin Erl Yvo Talbois thirsting for his Blood being most greedy for his Lands and Tenements which were very many in all the Counties of England the innocent and harmless man is martyr'd at Winchester the day before the Kalendâ— Here we see they were forc'd to accuse him of Faction and Conspiracy or Rebellion that the Lands might be forfeited to the Crown and they might get them for their good Service Our man of mighty Vndertakings thinks to set aside Edwin of Sharburn's Evidences and exposes the Credulity of his Friend Sir William Dugdale whose Obligation for leading him the way in his Origines Juridiciales he has returned to the purpose because he tells us Sharnburn's name is not to be found in Domesday book or the Conquerour's Survey and the Owners of Sharburn which are there only to be found are William de Warennâ Odo Bishop of Bajeux Bernerius Arbalistarius and William de Pertenac 'T is not material that they are reputed Owners since Sharborn had the King's Mandat p. 25. and possibly might not have the Possession restored till after this Survey 2. Often only the chief Lords of the Fee are named though not all the Proprietors under them 3. Though we find not Edwin of Sharburn we find in the same County Edwin a Proprietor and Lord of a Mannor with a mesne Lord under his Bailiwick and Care though not holding of him Sislanda tenuit Ketel liber homo Edvini commendatus tantum pro Manerio duo Car. Ketel Edwins Free-man held Sisland within his Bailiwick only for a Mannor and two Carvs of Land Now 't is very obvious that there were great Proprietors whose Christian Names only were mentioned in Domesday book They are frequently named without their Additions to be sure not all the Addition by which they were known to instance in Edric cognomento Sylvaticus this Sirname of his is not to be found there as I take it and yet he kept great Possessions which he had of a Title prior to William's Eo tempore Florentius wigorniensis extitit quidam praepotens Minister Edricus cognomento Sylvaticus cujus terram quia se dedere regi dedignabatur Herefordenses Castellani Ricardus Scrob frequenter vastaverunt sed quotiescumque super eum irruerant multos è suis militibus Scutariis perdiderunt At that time there was a certain powerful Officer Edric whose 〈◊〉 was Silvaticus whose Land because he scorn'd to yield to the Conquerour the Castellans of Hereford and Richard Scrob often wasted but as often as they fâ—ll upon him they lost many of their Souldiers and Tenants by Knights Service Hitherto he had kept his Lands and a little after we find the King and him reconciled 〈…〉 Vir strenuissimus Edricus cognomento Silvaticus cujus supra meminimus cum Rege Gulielmo pacificatur And soon after this he accompanies the King to Scotland but if the Dr. finds him by this Addition in Domesday book I will allow him to be a man of a very sagacious Invention p. 26. 4. We find whole Counties left out of Domesday book and therefore admit Edwin were not there 't is not strange that he though a Proprietor should be omitted if it were only through the Influence of Erl Warenn Notwithstanding the Exceptions taken to what he calls the famous Legend and trite Fable of Edwin of Sharnborn he himself confesses that he had the King's Mandat and so this Plea was allowed in the very Instance which he thinks to be on his Side How idle is his note on the Margin of p. 24. against Mr. Petyt Against Mr. Petyt c. p. 19. Can any man forfeit his Lands to a Stranger a Conquerour that could not pretend Title but by Violence and Conquest As if a Conquerour could not make what he pleas'd a Forfeiture and were not the more likely to use Rigor for being a Stranger having no Tyes of Familiarity or Blood besides will not a Conquerour pretending an Hereditary Right make them who oppos'd it forfeit And it shall be taken for just too by them who acknowledge his Title Noâ— is there more to favour his Fancy that King William by giving away the Lands of Great men nay whole Counties or the Government of them thereby defeated the Inheritance or lesser Rights of those who held under them As if for the purpose the King should grant away the Estate of the Lord Stafford which if any were left in him after any Settlement was really forfeited thereby all that had Leases under him or any other Interest were wholly divested which were to make the Attaindure to reach farther than the Blood SECT 6. BUT because our Author is a very sagacious Person for Informations sake I am bold to ask him some Questions occasioned by Domesday-book In Andover Hundred Sorry Rex tenet in dominico Cladford de feudo Rogeri Comitis If this had been the King 's own Feud 't would have been Rex habet de feudo â—uo as we find Robert de Statford had thirteen houses De honore Comitum de feudo suo Wherefore Quere whether all the Lands of the Kingdom were held mediately or immediately of the Crown What thinks he of Est de regno Angliae â—on subjacet alicui Hundredo neque est in consuetudine ullâ So in Surrey Non adâ—acet alicui Manerio or as elsewhere Fuit posita extra Manerium or such an one is commendatus homo to another Glos. tit commendare who if we believe Sir Henry Spelman â—wore no Fealty and held not by any kind of Tenure What of Nunquam geldavit or geldum dedit nec hidata fuit or distributa per Hidas What of potuit ire cum terrâ quo voluit â—otuit se vertere ad alium Dominum Which I should think argued Freedom from the Feudal Law
ought to remember that the very Law whereby he would prove all the Free-men of the Kingdom to have been Tenants by Knights Service was in Confirmation of the Confessor's Laws and that granted to those who had lived under them and knew the Benefit of defending themselves and their Properties in the Great Councils and the Nation too there or by their Arms elsewhere without out trusting the manage of all to such Thayns as held immediately of the King Nor were they then likely to quit their former Advantages when as appears by the Story they were in a probable Condition of gaining more if they would for the English had got together by the Encouragement of Abbot Fretherick Exercitum numerosum fortissimum a numerous and most potent Army and in their Head was he who was the only Heir to the Crown and that a Title above the Confessor Upon this Prudentiâ feliciter eruditus having the Happiness to follow his Interest and comply with the Occasion he granted St. Edward's Laws with some Additions indeed but not with such as would defeat the whole And I affirm it that though in his Additions he provides about the Tenures or other matters of his then or future Tenants yet there is not any thing which creates a feud over the whole Kingdom Indeed the Dr. who understands not for it was beyond his Sphere that Service laid either by Common or Statute Law upon all free Lands such as before the Conquest and since the Burgh-bote the Bridge-bote and the Expeditio the last of which we have been disputing of under the Law of Arms is a Service but no Tenure Tit. Hon. as Mr. Selden has rightly shewn would infer that because the Conquerour in Affirmance of St. Edward's Laws enacts That they shall for ever or Jure haereditario enjoy their Lands free from all Manner of Charge but their free Services which indeed tho it implies not his raising Tenures universally does not exclude such as himself had raised that therefore all were made Feudal Tenants Quod restat probandum SECT 2. FOR King John's Charter If he thinks fit to read over the Book that treats of it Against Jan. c. p. 47. once more and to observe it well and compare it with what he hath said he will find it anticipated and answered and if he hath not a mighty strong Fancy of his own Abilities must be ashamed of his impertinent Rhapsodies Since 't is there abundantly proved that though that King's Charter seems to some Understandings to make express provision for the summoning the Great Council of the Nation yet it expressly provided for the summoning the lesser Council the more ordinary Curia Regis only the Tenants which were Members of it standing in need of a Law to relieve them from some Hardships they were under Whereas the constant practise from the Reign of William the First inclusively downwards evinces that they who composed the Great Council had maintain'd their Right ad habendum commune Concilium regni uninterrupted for a general proof of which the Authority of Bracton was us'd which shews that besides such Payments as lay upon the Kings Tenants in Capite or had their Rise from Custom there were other introduc'd by the Common Consent of the whole Kingdom whence 't is easie to conclude that King John's Charter does not exhibit that is prrticularly set forth the full form of our English great and most general Councils in those days Jani c. p 1. Though there is a general Reference to all the constituent parts of those August Assemblies and to be sure nothing to prove that Tenants in Capite were the only Members of them yet what others have thereby Right ad habendum Commune Consilium Regni is not exprest how strongly soever it may be imply'd from the words even without the Interpretation of practise That others had Right is undeniable from the words and 't is as clear from practise who those others were and whether or no all the Members of the great Councils of the Kingdom or even all such as were Tenants in Capite came to Council in Person either upon general or special Summons as such Tenants did to the Conventions for matters of their Tenure is not mentioned but left to that ancient Course and Right which the Practice or Fact explains Tho this last be barely of the manner of Summons yet it shews that the manner is mentioned only in Relation to the form of an ordinary Curia Regis as I shew the Council of Tenants to have been The words upon which our Dispute is are these Nullum Scutagium vel auxilium Mat. Paris fol. 257. ponam in Regno nostro nisi per Commune Consilium regni nostri nisi ad Corpus nostrum redimendum ad primogenitum filium nostrum militem faciendum ad primogenitam filiam nostram semel maritandam Et ad hoc non fiet nisi rationabile auxilium Simili modo fiat de auxiliis de Civitate Londinensi Civitas Londoniensis habeat omnes antiquas Libertates Liberas consuetudines suas tam per terras quum per aquas Praeterea volumus concedimus quod omnes aliae Civitates Burgi Villae Barones de quinque portubus omnes portus habeant omnes Libertates omnes liberas consuetudines suas ad habendum Commune Concilium Regni de auxiliis assidendis aliter quam in Tribus casibus praedictis de Scutagiis assidendis submoneri faciemus Archiepiscopos Episcopos Abbates Comites majores Barones Regni sigillatim per literas nostras praeterea faciemus submoneri in generali per Vicecomites Ballivos nostros omnes alios qui in Capite tenent de nobis ad certum diem scilicet ad terminum quadraginta dierum ad minus ad certum locum in omnibus literis submonitionis illius causam submonitionis illius exponemus sic factâ submonitione negotium procedat ad diem assignatum secundum Consilium eorum qui praesentes fuerint quamvis non omnes submoniti venerint My Inference from hence as I find Et de Scutagiis assidendis divided in a distinct period from what went before the Dr. how foul soever his Reflection of New-face-Maker is Against Jani c. p. 3. has render'd not unfairly viz. That the City of London all Cities Burgs Parishes or Townships that is the Uillani their Inhabitants the Baroons of Free-men of the five Ports and all Ports should amongst other free Customs enjoy their Right of being of or constituting the Common Council of the Kingdom And that this reading and my Deductions from it are not so far remote from Reason and Sense Against Jani c. p. 60. that no man but my self could ever have thought of them appears in that he or they who Midwiv'd into the World the spurious Glossary 2 part of the Glos. use some Artifice to keep them
soever you read it under the Liberties and free Customs will be comprehended their whole Interest in the Legislature whereas otherwise according to this Charter of all their Liberties the King 's Great Council had then only Power to raise Taxes though we find that all along they advis'd de arduis negotiis regni and consented to what passed into a Law Wherefore Against Jan. c. p. 13. ' t is strange there should not have been the same care taken that they might have thier Rights in Council setled as well as their Summons to it but if this Charter setled no other Right than this of granting Taxes Quere What other power the Great Councils have now by our Author's Principles For admit that by the New Government which he says was fram'd and set up in the 49th of Hen. 3. a Right of coming to the Great Council was giv'n to a body of men who before that had none yet there was no additional power given to the Council it self that he or any man can shew Because I would encounter the whole Force which they raise by colour of this Charter I address'd my self chiefly to the proving that admitting that Et ad habendum commune consilium Regni aliter quam ought to be joyn'd as of the same period with de Scutagiis assidendis 't will not make for the purpose of them that urge it being upon strict Inquiry it cannot be thought to extend farther than to such matters as concern'd Tenants in Chief only That this must be thus confin'd is prov'd I. Because there were Majores Barones not excluded by this Charter and so their ancient Right continued tho they are not within the meaning of that part he insists upon for this is only of Tenants in Capite that is such as were subject to the Feudal Law The Earl of Chester for instance was not under it as Earl of Chester Wardship was a necessary Appendix to that Tenure but even the Tenants within that County though holding other Lands of the King by Knights Service were however out of the King's Wardship much more the Count Palatine And surely no body before the Dr. ever took him for a Feudal Tenant by reason of the County of Chester though he might be oblig'd to attend in the Wars and pay Escuage in case of Failure for other Lands held in Chief in other Counties 2. There were others came and upon other occasions than what are here mentioned as Falcatius de Brent who was to come even without forty days notice which was required in the Case here and whereas giving Advice in great Affairs and the making of Laws were transacted in the Great Councils no such thing is mention'd in this 3. We have the Resolution of a whole Parliament the 40th of Ed. 3. That the Common Council of the Kingdom of Tenants in Chief was not the Great Council of the Kingdom for that King John resigned his Crown in the first Council but as they declare not in the last and this the very Circumstances attending the Resignation evince 4. If the opposite Doctrine be true then all the dignified and inferiour Clergy which did not hold in Capite Abbots Priors c. were excluded 5. This must needs be no more than a Common Council of the Kingdom for assessing Escuage and such other Aid as lay upon Tenants in Capite only because Tenants only stood in need of Relief from this Charter they only being concerned in the three things reserved to the King or in the Additions to them none other being charged in that kind without more general Consent and more than Tenants being Parties to the Grant Besides not only the advances upon Tenants Services but the ordinary Incidents were called Auxilia as well as those others which according to Bracton were not called Services nor came from Custom but were only in case of Necessity or when the King met his People as Hydage Corage and Carvage and many other things brought in by the common Consent of the whole Kingdom Now where the King reserves Incidents to Tenure only 't is to be supposed that the Reservation is out of the thing before mentioned and so that must be Services because of Tenure none but Tenants being named whereas when others are named we may well suppose the Aids given by others too to be intended 6. We may here divide the benefit to each sort of Tenant in particular I. As the Tenants by Socage Tenure only were talliable and that us'd to be without their own Consent here they have a Consent given them 2. As Tenants by Knights Service though not talliable yet had hardship in the Obligation to sudden Attendance convenient Notice is given and it should seem that the want of this for the assessing of Escuage was their only grievance proper to be redrest for their Attendance in the Wars was to be govern'd by Necessity and as a Court of Justice there was no need of them 7. There is a Difference to be observed all along between the Great Council and such an one as is mentioned in this Charter I. For the Persons composing the one and the other 2. The matters of which they treated And 3. the times of holding them For the Great Councils by his own way of arguing there was at least one Great Council in the Reign of William the First where were more than Tenants in Chief The Tenants in Chief he supposes to have been only the Normans and Foreigners who were Enemies to the English Laws and the only great men by his Rule wherefore if the English Laws were retained at the Petition of any great body of men here they must be populus Jani Anglorum facies nova p. 55. inferiour People of England This was Ad preces Communitatis Anglorum Universi compatriotae regni petition'd as appears in the very Body of the Laws then received but these as despicable as they were had got together a numerous and mighty Army of which they made Edgar Etheling General these are all called Primates mitius coepit agere cum primatibus regni To shew that 't was matter of Council 't was argued Pro and Con at Berkhamsted Selden ad ead fo 171. where post multas disceptationes after many Disputes the English Laws were setled I need urge no more in this Reign except that which he hath yielded to my hand in effect viz. that all the Free-holders of the several Counties of England met this King in a Great Council at Salisbury For he himself tells us that all the Free-men of the Kingdom held by Knights Service and here were all the Knights so more than Tenants in Capite and all the Free-holders too as they were Knights all holding by Military Service But if there were other Freemen such as held in Free and common Socage qui militare servitium debebant who ow'd Military Service for the defence of the Kingdom though they held not by it why were
Fee than a twentieth yet in the last recited Record he may meet with the sixtieth part of one Knights Fee in the Mannor of Norton 5. Being all that were Members of the Great Councils in those times of which our dispute is Jani c. p. 32. 35 36. 40. 57. 62 63 64. 66. 185. 219. were Nobles in which the Doctor and I agree and the Nobles came in their own Persons the libere Tenentes part of the Nobility were personally present Indeed Corporations holding in Capite might well come by Representation being they were but as one Noble and one Tenent and would have been an unweildy body to move to Council united as their interest was 6. King John's Resignation was void because 't was without the consent of the Commons Sanz leur assent and to say that this is without the assent of a general Council Colloquium or Parliament in those times when it was done unless he yield the same sort or degree of men to have been Members of the Great Councils formerly as then does not take in the full meaning but is to say nothing being the Commons manifestly assert their right as when they declared that they had ever been a Member of Parliament Against Mr. Petyt p. 133. and as well Assenters as Petitioners And what force does it bring to the Doctors Assertion that the Commons answer in the same form of Speech conceiv'd by the Barons ib. p. 140. Which he thinks worthy of great Letters is that an Argument that the Commons did not think that they ought to have been parties He himself grants that King John resigned before them that came upon a Military Summons Against Jani c. p. 22 23 24. that is as all who ought to come were concluded by them that came before all his Barons wherefore nothing wanted to the Confirmation but the Consent of the Commons And if the Commons were then an essential part of the Great Council they might come in Person unless the change in 49 H. 3. can be shewn to have been any otherwise than in the bringing in a Representation of them Vid. the 12th head 7. By the Charter of H. 1. for the King 's dominica necessaria Jani c. p. 34. or de arduis Regni all the Counties and Hundreds that is the Freeholders the Suitors at those Courts were to be summon'd to the Great Council as it had been in the time of the Confessor when there repaired to the Great Folcmote or General Council held once a year all the Peers Knights and Freemen at least Freeholders of the Kingdom 8. For demonstration that libere tenentes came to the Great Councils in their own Persons and as Members King John before the passing of his Charter writes to the Milites Fideles the last of which takes in all the libere tenentes and tells them that if it might have been done he would have sent Letters to every one of them wherefore these Members whose right is here acknowledged were single individual persons for they could not have been summoned to come by Representation in the case of such particular Writs or Letters unless the Representation were setled before the Summons which is not to be supposed These Arguments all but the last which the Doctor has supplied me with arise out of my former Treatise and I take it that this which the Doctor has occasioned will yield a few more without pressing V. Domesday c. Besides according to the terms first agreed on he received the Confessors Laws about this Folcmote Confutation p. 33. 9. Since William the First was no Conqueror it follows that the Great Folcmote or General Council in the Saxon times where to be sure all Proprietors of Land were to be Members could not have been turn'd into an Assembly of the Kings Tenents upon the old legal Title and without a Conquest there was no other And as there must have been a vast number of the Proprietors whom the Kings immediate Tenents could not oblige so they must have been Members of those Councils which laid any general Charge and that with the same priviledges the Tenents in Capite who came in Person had 10. Though demonstration it self will not satisfie unreasonable men yet not to mention more I shall urge the Authority of the Legier Book of Ely before cited Jani p. 41. the great Antiquity of the hand writing of which is beyond all exception to persuade the Doctor that my Notion is far from being precarious Since that M. S. shews that King Stephen consulted about the State of the Kingdom not only with the Bishops Abbots Monks and inferior Clergy but with the Plebs and they in an infinite number Concilio adunato Cleri populi Episcoporum atque Abbatum Monachorum Clericorum Plebisque infinitae multitudinis c. de statu Regni cum illis tractavit This single instance is sufficient to prove that the Primates Against Jani p. 62. Primores Proceres Magnates and Nobiles were not the Constituent parts of Great Councils in the Reigns of W. the 1st H. 1st King Stephen H. 2. R. 1st according to his restrictive and limited understanding and exposition of these words and phrases but that the CLERUS and POPULUS the general words which often comprehend all the Members signifie as well as Great Men the Common Freeholders as at this day nor need I examine his Book any farther but I hope the Doctor a man of that known integrity as his excellent Book expresses him to be will now make good his promise to be of my opinion when I should evince that Common Freeholders had this great priviledge p. 62. 11. The Lords right of answering for their Tenents being founded in the imaginary feudal right which is made to extend only to Tenents by Knights Service the Socagers being free from that Law could not be charged without their own consent and that given by word of their own mouths if they pleased 12. The Authority cited by Mr. Cambden Jani c. p. 248. and approved of by our Author as well as by me shews that the only change in the Great Council was in leaving out of the special Summons what Earls and Barons the King pleased Against Mr. Petyt p. 226. ib. p. 228. Confutation p. at the right of all other Barons as Singular Persons to share in the Legislature was preserv'd by the alia illa â—revia by which the Representatives 〈◊〉 the Counties came and being all the Members of the Great Councils but Citizens and Burgesses or all such Baâ—ons as aforesaid came before the change in their own Persons and no 〈◊〉 kind of Members were then Creaâ—ed and yet there was a substantial â—â—teration Against Mr. Petyt p. 210. a new Government fram'd â—â—d set up this alteration must consist 〈◊〉 the Commons or Barones Minores â—heir being put to Representatives when before they came Personally 13. I
acquir'd the Crown by Election these things shew it to have been as factious as those which are condemned But we must have Recourse to the History to know how he became King here England since it had been reduced to a Monarchy by the Conduct and Magnanimity of the great King Alfred found that benefit of being under One Head that before Succession was setled when a King dyed the People voluntarily pitch'd upon some One to whom they might pay their Allegiance and from whom they might expect Protection when a King quitted his mortal Dominion to be Assessor with the Principaâ—ities and Powers in the highest Orb. The Question was not whether they should have a King or no but who should be the man The Confessor through some foolish Vow which was void in it's self having denyed Marriage-rights to his Queen they had none of his Issue to set their Hopes upon and perhaps they were loth to fall again before a Family which they had formerly disobliged and therefore would not think upon Edgar Etheling who was Heir to him that wore the Crown next before the Confessor But that Monarch of their Choice and as 't was believ'd the Elect of Heaven was in such esteem with them that the greatest Worth and the clearest Stream of Royal Blood would have signified little in respect of the Deference they paid to his sanctified Judgment and therefore his Recommendation in such a superstitious Age was to them a kind of Divine Revelation The Norman Prince Abrev. Chron. Rad. de diceto fo 479. Subregulus Haroldus Godwini filius quem Rex ante suum decessum elegerat à t tius Angliae Primatibus ad regale culmen electus William pretended a direct Gift of the Crown from him but there is Authority which tells us That upon his Nomination the chiefâ— men of all England chose Harold Whether this illustrious Son of the great Earl Godwin was design'd by the Confessor or no is left in Dispute but that he arriv'd to his high Trust by a general Election of those who were able to keep under M. S. ex bib Domini Wild defuncti or satisfie the rest is certain and yet an ancient Author calls him Conqueror Heraldus Strenius Dux Conquestor Angliae If Harold has made an absolute Conquest which no man pretends that I find and William had conquer'd him perhaps there would have been a Devolution of a Conquerours Right upon him who subdued Harold but there was only a Competition between these two Princes for that Dignity and Authority which Election had vested in Harold 'T was this that William fought for not for the Lives Liberties and Fortunes of the People And William himself upon his Death-bed being ask'd to whom he would devise his Kingdom makes Answer that he would not pretend to dispose of it and gives this Reason which argues that he thought he had no Right so to do Non enim tantum decus haereditario jure possedi For Comb. Brit. f. 104. I possess'd not this Honour as a Right of Inheritance which here must be meant as what I had an absolute Property in and Disposal of Sed diro inflictu multâ effusione sanguinis humani perjuro Regi Haroldo abstuli interfectis vel fugatis fautoribus ejus dominatui meo subegi But by a direful Conflict and much effusion of humane Blood I took it from perjur'd King Harold and brought it under my Dominion through the Deaths or Flight of his Abettors With this agrees Lex Noricorum in the Confirmation of St. Edwards Laws William the Bastard through God's Permission subduing Harold Regnum Anglorum victoriosè adeptus est Got the Kingdom of England by his Victory but the Victory was over Harold not the whole Kingdom I wonder our Antagonist brought not this to prove that William the Bastard got all the Lands of the Kingdom as he granted all the Lands of whole Counties under the word Comitatus but as 't will appear that the Proceedings of this Prince to his being crowned prove his Election so his Transactions with Harold shew that he laboured only to have that Power which he said Harold maintain'd by Perjury Suppose therefore Harold had not oppos'd and without more Turmoils William had been crown'd had he in this Case been a Conquerour in the Sense contended for And what makes the Difference between his having it of Harold freely or by Force in relation to the whole Kingdom Surely he would never have endeavoured to come in by Treaty to a limited Dominion when with those Advantages that were on his side he might expect by turning â—ut Harold to jump into the absolute Disposal of the whole Land But immediately after St. Edward's Death he sent an Ambassador to demand a Resignation from Harold to which he urged his Obligation by Oath the Gift of his Kinsman the Confessor was likewise pretended But Harold argued for the Invalidity both of his own Oath and the others Bequest because they were Selden's Review of the History of Tithes p. 439. absque generali Senaâ—s populi conventu edicto That â—s no Act of the Common-Council of the Kingdom which Council is represented by this Author under the Form of the Roman Councils at those times when besides the Senator's Votes there was the Jussus populi And this is in other words of the same Import exprest by Matthew Paris Sine Baronagii sui Communi assensu Upon Harold's denying the Normanâ— demand Appeal is made to the Popeâ— and there was one then in the Papal Seâ—â— whose Ambition made him court all occasions of becoming the Vmpire of thâ— Affairs of Christendom Vid. Dr. Stillingfleet's Answer to Cressy's Apol. p. 347. ad 353. and this was thaâ— great Asserter of Clerical Exemptionâ— from the Civil Power Gregory the Seventh The Pope like God himself who by his Prophets often anointed and designed Kings sends one of his Ministring Spirits a Nuncio I take it with a consecrated Banner as an Evidence oâ— Right and an Earnest of Victory and encouraged him to fight the Lord's Battels not expecting that commendable Ingratitude in the religious maintaining those ancient Rights of the Crown oâ— England for which he afterwards upbraided his Royal Son Whether Superstition or the hopes oâ— engaging the Pope's secular Influence and Interest to his side occasion'd William to refer his Pretence of Right to the Pope's Decision I shall not judge but with these Colours of a Title he lands â—n England and some say committed no Acts of Hostility till his Claim was again deny'd by the daring but unhappy Harold who was a man of Spirit fit for Empire and was likely to have kept â—t much longer had not Fortune raised up against him three great Enemies at once his Brother Tosto Norwegian Harold and the aspiring William against whom possibly his arm was weakened with the Reflection upon his own Vow to William to assist him in his ambitious Design and what he
he was Leige-man to and received Laws from the French Monarch Though the Crown of England has always been imperial subject to none upon Earth yet he that wore it unless he were so free that he could go with his Land Potuit ire cum terrâ quo voluit whither he would which to be sure is inconsistent with this Feudal Law he could not quit his Dependance SECT 4. The Notion of the Feudal Right considered and the Right of Tenants in free and common Socage to come in theâ—â— own Persons to the great Councils shewn from thence BUT since the mention of Jus feodale as advanc'd in the second part of the Glos. ascribed to Sir H. Spelman occasions a little Consideration of the Feudal Law I out of a Zeal to clear his Reputation from the Charge of things false or frivolous and having at present no other Authority for his being the Author of it than ones who has an excellent Faculty of Storying except against what is there said to be ex ipso jure feodali as none of his 'T is there taken for granted to be the very Right of Feuds deriv'd from the Feudal Law that the Superiour Lord of the Feud should give Law jus dicere to them that are under him and 't is evident this is not meant of an ordinary Jurisdiction because by virtue of this 't is fancy'd that the Lords represented their Tenants in the Extraordinary at the great Councils and by the same reason the Assertion of a Judge censur'd in Parliament is justifiable viz. That the King is the only Representative But I must observe that this must be from Either 1. The general Law which guides the Feuds in all places where Feudal Law is received Or 2. The particular Feudal Law of England 1. Our Author evidently takes this in the first Sense being to prove what was the Feudal Law here New Glos p. 4. he cites the foreign Feudists who acquaint us with the Law of Feuds amongst them but this first Sense is not supposable in that this Law upon that account would be as much the Law of Nations as the Law for the Advantage of Embassadors wherever they come And this could not generally prevail but from the Authority of Catholick Reason that should require it but that I do not find since the Lord may have the Vtile Dominium which the Feudists speak of as incident to Feuds without the despotick Power and the end or nature of them being answer'd from whence will the Argument be brought that it ought to be so I will grant that it is not a Feud unless there be Utile Dominium for that distinguishes it from an Alodium which sometimes may yield no profit to any Superiour But those who well knew the Nature of Feuds teach us that 't was the Infancy of Feuds when they wholly depended on the Lord and could not stand without being supported by his pleasure then indeed which was before Feuds were spread into many Nations cragius de Feudis fol. 20. Nec servientibus aliud jus erat in his proediis quam precarium quod qui habet non tam diu quam ipse vult sed quamdiu is qui concedit patitur eo frui This indeed agrees with that Law which is supposed to have obtained even till the 49 H. 3. Whereas from hence Feudal Tenure advanc'd to an Estate for Life Solet usus fructus constitui in personam tantum Cujacius de feudis Tom. 4. fo 464. and all this before the year 650 from which time to Charles the Great who began to reign in the Year 800 unless one were particularly assigned by the Gift the Lands descended Craglus fol. 21. by right of Inheritance to all the Sons It s state of Maturity was when it descended to one but still there was an Inheritance by the Law of Feuds before the time of William the First and above 450 years before the 49th of H. 3. And I would rather believe Cujacius for the Jus Feodale or the Nature of it than what we find under the Title Parliament in the Glossary Cujacius defines a Feud Cujacius de feudis fo 464. Tom. 4. Jus praedio alieno in perpetuum utendi fruendi quod pro beneficio Dominus dat eâ lege ut qui accipit sibi fidem militiae munus aliudve servitium exhibeat An Usufructuary Right in another's Land which the Lord gives for a Benefice upon condition that the Grantee should be faithful and true to him and perform Military or other Service This is a perpetual Right therefore not to be disposed of by the Lord's Will or the Law which he should give 'T is indeed Vsufructuary because the Lord has the Forfeiture and Escheat according to the Laws setled in any particular place For I take it that in one place they differ'd from another And in Confutation of this Conjecture that ex ipso jure Feodali the Lord jus dicit take this as the general Law of Feuds 't is enough that in any place where the Feudal Law was received 't was otherwise Choppinus de Juridic Andeg Choppinus sayes that amongst the French a Feud implies not juridica potestas nil commune cum juridica potestate Which if as Jurisdiction is often used to signifie a Power inferious to Jus dicere it is but a Judicial Power it follows that the Lord could not have the greater where he had not so much as the less And farther Feuds have in all Countries been guided by the Law of Property their Common Law Thus sayes Cujacius Nos quoque jus feudorum quo Italia utitur sequimur non inviti nisi siqua in re pugnet cum legibus aut moribus nostris We also willingly follow the Law of Feuds which Italy uses unless in any thing it fights with our Laws or Customes And this is to be observed that the end of raising Feuds has often prevailed to introduce a Custome without any express Law and beyond the Foreign Law of Feuds 1. Without express Law and thus to preserve the Head of a Barony that was never to be divided whereas any other part was often so in which the Common Law prevail'd from the end of raising the Feud which requir'd the Preservation of that entire though the other part of the Barony might be divided Bracton and Fleta suppose the Barony to descend to several as well Males as Females Bracton lib. 2. fo 76. Primogenitus vel primogenita habeat electionem propter suam Eisneciam says Bracton Fleta lib. 5. fo 313. whose words only I repeat Let the first born Male or Female have Election by reason of the elder Share And with this agrees a Record in King John's Reign Thomas de Scoteney petit versus Willielm Scoteney Capitale Mesuag quod habere debet in Steinton cum pertinentiis sicut illud quod pertinet ad Eisneciam suam de Baronia quae fuit Lamberti Scoteny Thomas de Scoteny
would have the Discourse about these ib. nay and the Conquest it self to be out of the Question and then pray what is the Question It cannot be whether Tenants in Capite represented p. 2. or by their Votes concluded all that held by any other Tenure Nay whether these and their Tenants could do it because this Tenure and manner of holding Estates came in with the Conquerour I hope I shall not seem tedious though I am long upon this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of a Conquest that Corner-stone on which if he knows what he do's which I cannot but doubt of sometimes he Erects a fanciful Scheme of Government And thus the lofty Fabrick rises one Story upon another William having made an actual Conquest Against Mr. Petyt thereby had the absolute Disposal of all the Lands of the Kingdom p. 35. and did p. 176. according to his lawful Power give all away to his Followers who though French p. 35. Flemmings Anjovins Britains Poictovins were all metamorphos'd into Normans p. 43. upon whom onely the Feudal Law was executed and observed The King's Grantees though ordinarily a Tenement or Possession neither added to Glos. p. 10. or detracted from the Person of any man if free or bound according to his Blood or Extraction might well be all the Free-men of the Kingdom because the Conquest had made all the English Slaves and the King granted onely to his Great Followers which were Free before But when these Grantees granted out to others p. 176. the Subfeudataries made part of the Freemen of the Kingdom as holding by Knights Service these were the men ib. p. 39. the onely Legal men that named and chose Juries and served on Juries themselves Carta H. 1. both in the County and Hundred Courts Barones Comitat. qui liberas habent terras in which Courts they were the onely Suitors Alas no body else had any free Lands in the Counties Therefore p. 42. these must have been the men that at first Elected two Knights in every County out of their own number and onely they were Electors when first the Body of them began to be represented And unless others are impower'd by the 8th of H. 6. c. 7. which restrains the numerous Electors to Free-holders of 40 s. per ann As the Tenants in Capite came before the 49th in their own Persons and represented the Body of the Commons of England and when first the Body of them that is the Tenants in Capite began to be represented they onely as was proper chose their own Representatives so it ought to be at this day And thus the Tenants in Capite that is they alone and yet they and their Tenants by Knights Service have ever been and still ought to be the onely Members of the Great Council I know he will venture hard but he will make all this good in his next if he can there being a narrow Interest in some for which they would sacrifice the Publick But I shall think our Government will have been finely brought to Bed by his Midwifry when such a monstrous brat is own'd by it Vid. Letter to the Earl of S. But if King William the Master-builder refus'd what this Author would make the Head of the Corner and was not so absolute a Conquerour as to leave the English neither Estates nor Fortunes Against Mr. P. p. 43. ib. p. 179. what becomes of his Airy Ambuscade He has the Confidence to refer to Dooms-day Book in every County for this Fiction and that will satisfie a man wilfully blind p. 176. that William the Conquerour divided all the Land in England amongst his great Followers Now what if I shew out of himself and this book of Judgments concerning Lands and Services that he divided very little of the Lands in England to his Followers to be sure that he was far from distributing all Our Author spared the particular Proof I 'll warrant it to make us believe it would require a Transcript of the whole Book but I think I shall impose upon no body by affirming without transcribing the greatest part of it that even where Lands were enjoyed by other Owners than such as held them in the time of King Edward and upon other Titles yet the Lands continued for the most part to hold in the same Manner as before Whereas William according to him brought in a new Manner and none were so much as Free-men who held not by Knights Service which he setled over all jure haereditario We generally shall find that there was no change of the Manner or Quality of the Service but only of the Quantity Tunc geldavit modo geldat for so much either more or less according to the Improvement or Fall of the Land and frequently that which before paid for a certain number of Hides paid nothing at the making of the Survey The Rent I conceive was in proportion to the value of the Land that being seldom named but only how many Hides Acres Roods c. there were and these Tenants seem to have held in free or common Socage Sometimes they were such as potuerunt ire cum terrâ quo voluerunt which I doubt not Doomsday Ties Taiâ—i tenuerunt non potuerunt ire quolibet uâ— flet tenuiâ— de Tofti sed non fuit alodiâ—m were the Alodiarii sometimes they were not so free but held by Villain Services though themselves were free and these were Tenants in common Socage Sometimes Milites are named but rarely so that 't is certain he can have but small Assistance from Dooms-day book and being there sometimes descent sometimes purchase and now and then the King's Grant is mentioned who can tell by that whether generally the Lands were enjoyed by the one or the other Title since especially 't is most usual only to name the Persons that held formerly who did then and by what Services I take it there are as many and as often English names there as others and though the 〈…〉 of names different from the former 〈◊〉 Vid. Caâ—den's Remains of Sir names from p. 136. to p. 141. that the Christian 〈…〉 which 〈…〉 from their Fathers are more us'd there than Sir-names But I thank him he has given me an easie Task to shew that in spite of his Conjecture this great Survey demonstrates that there were Proprietors of English-men who held Free-lands upon Titles paramount to what he insists upon If notwithstanding our Author's Quotation out of Tilburiensis But they should not claim any thing from the time the Nation was conquer'd under the Title of Succession or Descent Tilburiensis an Officer of the Exchequer who was for bringing Grist to the Mill I produce a List of Free-holders who enjoyed their Lands of the Seizin of their Ancestors Against Mr. P. their own p. 34. or theirs of whom they purchas'd Against Jan. c. p. 1. from before the counterfeit
ordinavit quod omnes illi Comites Against Mr. Petyt p. 227. Barones Angliae quibus Rex dignatus est brevia summonitionis dirigere venirent ad Parliamentum suum non alii nisi fortè Dominus Rex alia illa brevia eis dirigere voluisset These alia illa brevia he fancies to have been directed to the Pares Baronum wherefore as they had the same Writs with the Barons and were Barons before being part of the Baronage of England 't is no more than that all Barons to whom the King directed his Writs should come and no other Barons but such as he directed his Writs to and they who were Barons before and called by Barons Writ must by a strange kind of Metamorphosis cease to be such besides an Alteration then being made and the Commons not taken notice of they must have come before otherwise whence is their Right at this day And what other Change could there have been but the bringing in Representations instead of personal Rights and that amongst inferiour Land Owners since the Majores Barones came before in Person Against Jan. c. p. 7. and Burroughs holding in Capite by Representation as appears by E. 2. nay and Towns incorporated not holding in Capite But 't was nisi forte unless casually or by Chance or sometimes other of those same very Writs and of the same Form which had issued out to the Earls and Barons were directed to any other that is in effect according to his Notion unless the same Writs which were directed to Earls and Barons were directed to Earls and Barons which same Writs must have different effects upon persons in the same Circumstances and Qualifications But how can fortè here signifie more than When For being the times when the Parliament should sit were not assertain'd then or since they were to be governed by Chance and various Accidents determining the King's mind But whereas the alia brevia are supposed to be directed to the Pares Baronum where will such Pares not Earls or Barons be found in any of the ancient Statutes of the Realm until E. 2. to signifie the Nobility Dic quibus in terris eris mihi magnus Apollo Upon the whole if eis turn the words to the Dr's Sense 't is manifestly put in by mistake for that Sense would set aside the Authority which even himself receives SECT 3. TO evince the Truth of my Notion that the Commons such as are now represented by Knights Citizens and Burgesses came to Parliament from of old time under the name of Nobles If the Knights of the Counties were Grantz as he would have it because of Tenure in Capite how comes it to pass all the Citizens and Burgesses were Commons when they that came for the Counties were Grantz Not to enforce the Argument à fortiori from the Traders being sicut * * * Malmesb. Hist. nov fo 106. De regis officio appendiciis coronae regni Britanniae Proceres or quasi optimates Londinenses qui sunt quasi Optimates pro magnitudine Civitatis in Anglia This I insist upon that even in those very times when Commoners undoubtedly came to Parliament as now all the Members are called Nobles It was affirm'd in the Confessor ' s Law received by William 1. Debet etiam Rex omnia rite facere in regno per Judicium procerum Regni This very Law Rot. Claus. 3. E. 1. m. 9. Cedula Placita coram Domino Rege apud Westm. de Term. Pasc. Anno Regis E. 3. post conquestuâ—m 20. part of the Coronation Oath wherein those Proceres are now call'd Vulgus E. 1. interprets when in answer to the Pope's Bull sent by his Chaplain Pro censibus colligendis denario Beati Petri he writes that his Parliament being lately dissolved Super hoc nequiverimus super petitione censûs ejusdem deliberationem habere cum Praelatis Proceribus nostris sine quorum communicato Concilio Sanctitati vestrae super praedictis non possumus respondere jurejurando in Coronatione nostrâ praestito sumus astricti quod jura Regni nostri servabimus illabata nec aliquid quod diadema tangat Regni ejusdem absque ipsorum requisito consilio faciemus This royal Comment upon the former Law shews us that the same Council which was a Council of Peers when according to the Dr. there came the Majâ—res Barones their Tenants by Knights Service Burroughs holding in Chief and Towns incorporated not holding in Chief is still a Council of Peers though compos'd of all the former and the Grantz of the Counties which as I have shewn were not confin'd to men of those Tenures And what reason can be shewn why the Grantz of the Counties were not Peers in the Reign of William the First as well as of Ed. 1. That then they were call'd Nobles the following proofs make evident Rex ad Parliamentum West An. 1275. M. West f. 407. 3 E. 1. omnes Nobiles Regnisui jusserat congregari in quo statuta multa ad utilitatem Regni fuerunt publicata This assembly of Nobles was the Parliament at Westminster where the Statutes were made by the King Cook 2 Inst. f. 156. Person Counsel per l'assentment des Archevesques Evesques Abbes Priours Counts Barons tout la commonalty de la terre illonques summons Post pasâ—ha ad Parliamentum West An. 1276. 4 E. 1. Ma. West fo 408. multis Nobilibus congregatis pacem suam quondam pacis perturbatoribus Rex concessit quintam decimam omnium bonorum temporaliumtam Clericorum quam Laicorum inaudito moâ—e adunguem taxatam Rex jusserat confiscari Here the Commons included under the name of Nobles granted the 15th as appears by these Authorities Rex c. Cum Archiepiscopi Rot. Pat. 4. E. 1. m. 6. intus Abbates Priores Comites Barones Milites omnes alii de Regno nostro quintam decimam de bonis suis quibusdam tamen exceptis de honore de Bergaveny nobis liberaliter concesserunt Rex c. Licet Comites Rot. Pat. 4. E. 1. m. 6. intus Barones alii magnates Communitas Regni nostri quintam decimam omnium bonorum suorum Pro R. Cantuar Archiepiscopo c. Let any sober knowing man consider these few Instances of many Against Jani Angl. p. 40. wherein the Commons undignify'd Proprietors of Land are comprehended under words now appropriated to the Higher Order and let him think with himself whether these were all Tenants in Capite as our reverend Author insinuates but without all colour of Reason I must take leave to add a few more Authorities to prove that after 49 H. 3. all the Members of Parliament were call'd Nobles tho that the Commons were there is beyond all manner of Dispute The Statute of Westm. Rast. Stat. fo 28. 40. the second Anno 13. E. 1. upon the 46 Chapter
is positive that Tenants in Military Service were the only Free-men and the only legal men Thus I have done right to his Omissions So Against Jani p. 36. passing by nothing which has not received justice before and shall add some confirmations of what I have taken leave to assert in other places I had affirmed for one reason why the Doctor could have small assistance from Domesday Book p. 78. that the Titles whereby men enjoy'd their Estates are seldom mentioned there And if I find by Record a whole County in the Doctors sense that is all the Lands of the County enjoy'd by descent from before the imaginary Conquest What will he say in justification of his whymsies upon the Conquest and the authority he would fetch for it from Domesday Book He may please to consider and give 〈◊〉 Categorical Answer to this memoâ—able Record IN placito inter Regem priorem Ecclesiae de Coventre de annua pensione 〈◊〉 Clericorum Regis Placita coram Regeâ— Hill Anno 14 R. 2. Rot. 50â— warw ratione nove creationis ejusdem prioris quousque c. prior venit defendit vim injuriam quicquid est in contemptu domini Regis c. non cognovit Ecclesiam suam beatae Mariae de Coventre fore Ecclesiam Cathedralem nec ipsum priorem tenere aliquid de domino Rege per Baroniam prout â—ro domino Rege in narratione sua proâ—onitur Et dicit quod tenet prioratum praedictum ex fundatione cujusdam Leoâ—â—ici quondam Comitis Cestriae qui prioâ—atum praedictum fundavit tempore sancti Edwardi dudum Regis Angliae progenitoris domini Regis nunc per Cartam suam in haec verba Anno dominice incarnationis 1043. Ego Leofricus Comes Cestriae Consilio â—ssensu Regis qui literas suas infrascriptas sub sigillo misit testimonio aliorum religiosorum virorum tam laicorum quam Clericorum Ecclesiam Coventre dedicari â—eci in honore dei Ecclesiae sanctae Mariae genitricis ejus sancti Petri Apostoli sancte Osburge Virginis omnium sanctorum Has igitur viginti quatuor villas eidem Ecclesiae attribui ad servitium dei ad victum vestitum Abbatis Monachorum in eodem loco deo servientium videlicet Honiton Newenham Chaldeleshunt Icheâ—ton Vlston Soucham Grenesburgh Burthenburgh Mersten juxta Avonam Hardewick Wasperton Creastorton Sotham Rugton dimidium Sowe Merston in Gloucestriae provincia Salewarpe in Wigorniensi Eton juxta amnem qui dicitur dee in Cestriae provincia Keldesbye Windwyk in Hamptoniensi provincia Borbach Barewell Scrapstofte Pakinton Potteres Merston in Leycestrensi provincia Hâ—s autem terras dedi huic Monasterio cum Soca Saca cum telonio theme cum libertatibus omnibus consuetudinibus vbique Sicut a Rege Edwardo melius unquam tenui Cum hiis omnibus Rex Edwardus ego libertates huic Monasterio dedimus ita ut Abbas ejusdem loci Soli Regi Angliae sit Subjectus Ibidem recitatur Charta ejusdem Regis Edwardi quas donationes concessiones diversi alii Reges confirmaverunt dicit quod postea per processum temporis â—â—men Abbatiae praedictae divertebatur in nomen prioratus eo quod Leofwinus ad tunc ibidem creatus fuit in Episcopum Cestriae ordinavit per assensum Monachorum ibidem quod Abbatia praedicta ex tunc foret prioratus quod Superiores ejusdem Ecclesiae forent priores successive in perpetuum dicit quod de ipso Leofrico quia obiit sine herede de corpore suo descendente advocatio Ecclesie predicte tempore Willielm ' Conquest ' Angliae cuidam Hugoni Comiti Cestriae ut Consanguineo heredi ipsius Leofrici Na. this is the Hugh to whom he imagines that William gave all the Lands of the County of Chester viz. Filio Erminelde sororis ejusdem Leofrici de ipso Hugone cuidam Ricardo ut filio heredi de ipso Ricardo cuidam Ranulpho ut Consanguineo heredi viz. filio Matildis sororis praedicti Hugonis de ipso Ranulpho cuidam Ranulpho ut filio heredi de ipso Ranulpho filio Ranulphi quia obiit sine herede de corpore suo descendente advocatio praedicta simul cum Comitatu Cestre Huntingdon aliis diversis Castris Maneriis terris tenementis cum pertinentis in Anglia Wallia quibusdam Matildae Mabilliae Ceciliae Margeriae ut sororibus heredibus predicti Ranulphi inter quas propertia facta fuit de predictis Comitatibus advocationibus Castris Maneriis terris tenementis cum pertinentiis supradictis Et predicta advocatio Simul cum toto predicto Comitatu Cestriae cum pertinentiis allocata fuit predicte Matilde pro proparte sua in allocationem diversorum aliorum Castrorum Maneriorum terrarum tenementorum cum pertinentiis praedictis Mabilliae Ceciliae Margeriae seperatim allocatorum de ipsa Matilda descendebant predicta advocatio simul cum praedicto Comitatu Cestriae cum pertinentiis post propertiam predictam cuidam Johanni Scot ut filio heredi praedictae Matildae Qui quidem Johannes Scot advocationem praedictam simul cum praedicto Comitatu Cestriae cum pertinentiis dedit Henrico quondam Regi Angliae filio Regis Johannis heredibus suis in perpetuum c. praedictus prior sine die This was a Judgment upon solemn Debate and Tryal and it cannot be believed but the Judges and Kings Council so many hundred years ago knew as much of the right of the Conquest as our Doctor can discover 'T will be said notwithstanding this Record that Hugh had the Confirmation of his Kinsman the Conqueror Admit he had he being his Kinsman would either thereby wheedle others in to the like acknowledgment of Williams power Or else having the Government of the County would do this in complement to the supream Governour But that such Confirmation as to the Lands he had there and all appendants or appurtenances to them was wholly neeedless appears in that the Title is laid only in descent nor does it in the least appear that William either granted or confirm'd more than the Comitatus Government or Jurisdiction of it or that more than that was held by the Sword which the Doctor makes Tenure in Capite Let him shew how by what manner of tenure his Land was held Not being aware that so great an Author as the Doctor would have condemn'd for precarious Against Jani c. p. 89. all that I think I have prov'd from the Records and Histories which I cite for the foundation of my former Essay Jani c. p. 264. viz. that till the 48. and 49th H. 3. all Proprietors of Land came to the Great Council without exclusion ib. p. 264. I had asserted that the probi homines or bonae conversationis came to the Great Councils which in
common Intendment is meant of coming as Members in their own persons Against Jani p 4. and when they agreed to it which was no abridgment of their personal right they came by Representation and Election and every one was there himself virtually by his Deputy but they often met in vast bodies and in capacious places both in the Saxon times and after William the First obtained the Imperial Crown 1. If you 'l believe the Chair all this is precariously said Against Jani c. p. 89. without Foundation or Authority however 't is granted that I seem to back it with an instance where I say The whole body of Proprietors were assembled at Runemede between Stanes and Windsor at the passing of King John's Charter The Doctor refers us to p. 106. and 107. of his pretended Answer to Mr. Petyt to see what this Assembly was and of whom it consisted where he proves my Assertion being all that he there shews is that there was not time for Writs to issue to chuse any Representatives of the Commons but not a word offer'd against their being there in their own Persons having been got together expecting the Kings Answer to their Demands who appointed a meeting at Runemede Rot. Pat. 17. Joh. pars unica m. 13. n. 3. ib. m. 23. dorso The Record saith there were Comites Barones liberi homines totius regni or according to that Expounder of more fallible Record Ma. Paris Against Mr. Petyt p. 183. p. 127. in Marg. there were the Magnates which must there be meant of the Nobilitas Major unless you take them for the Kings friends only as the great men of the Kingdom elsewhere these Magnates had drawn to their side and to that treaty Vniversam fere totius Regni Nobilitatem Ma. Paris fo 244. and this Nobility was so numerous that they made a vast Army exercitum inestimabilem confecerunt and the Records not only shew that such as were but liberi homines were there and parties to the agreement being inter Regem Comites Barones liberos homines but the body of the Charter shews that Tenents by other free tenures besides Knights service were interested in it Besides this the frequent meetings in so wide a place as Runenede call'd Pratum Concilii as I observed in the same page is a strong Argument that vast bodies compos'd the great Councils in those days and why Tenents in free Socage were not Members as well as such as held of Subjects by Knights service I see no reason but wait for the Doctors In the mean while I shall present him with some other Authorities which shew that my Assertion was not precarious 2. If in the 38th of H. 3. the Commons or probi homines were Members of the Great Council by Representatives of their own choice and degree there being besides all the Tenents in Capite two chose for every County Jani c. p. 244. Vide amongst other Authorities Vice omnium Singulorum and yet such came in their own persons both before and after the making of King John's Charter since which till the 48th or 49th of H. 3. no alteration in the way Jani p. 51. 57 58 59 60 61. 66. 214. 248. or right of coming is supposed then it follows that Representations were brought in when the Commons who might have come in their own persons agree to it and there being of the Councils before the Norman times and then Barones populus 't is not to be doubted but that they came in their Persons if they would both in the Saxon and Norman times especially since William the First did but confirm the Law of the Confessor concerning the power of the Great Council Rex debet omnia ritâ— facere in regno per judicium Procerum Regni Leges Par. Ed. in words that shew'd that all the Members were in those ages stiled Peers such as might come in person and that inferior Proprietors were Members the Law of the great Folâ—mote then received proves beyond all dispute 3. If besides Barones Jani c. p. 241. and Milites we find Libere tenentes or Fideles in the account of Great Councils before 49 H. 3. we are to suppose Against Mr. Petyt p. 112. even without Consideration of the Capacious places of their Assembly The free Tenents in Scotland and the Possessionati in Poland us'd to be Members of their great Councils without Representation and the multitudes there that such Proprietors of Land as would came personally till a Law or common practice to the contrary be shewn it being according to their natural right and the natural import of the words besides the Doctor does not allow of Representations except the Tenents in Capite who came without Election Jani c. p. 248. p. 66. were Representatives of the rest 4. If King John's Charter does not exhibit the full form of our English Great Jani c. throughout and most general Councils in those days but by continuing the rights of every particular place leaves room for Proprietors of Land to have been Members as well as Tenents in Capite then the libere Tenentes which many Records before the supposed change in the time of H. 3. mention as Members of the Great Councils were not Tenents in Capite And as Tenents in Capite came in their own persons for matters concerning their Tenures So unless the contrary can be shewn we are to believe that the libere tenentes not holding in Capite came in like manner especially if we consider how mean were some of the Majores Barones to whom special Writs were to be directed as he that held part of the Barony of Mulgrave Communia de Term. Mich. An. 39 E. 3. Rot. 36. penes Rem R. in scaccariâ— per servitium millesimae ducentesimae partis Baroniae Nay I find Norman Darcy who indeed held several parcels of the Mannor of Darcy which seem to be by several purchases amongst other shares holding Centessimam partem Centessimae Sexagessâ—mae partis Baroniae Penes Rem Regis in scaccario de Term. Pasche 29 E. 3. Lincoln de Re. Brook tit exemption The hundreth part of the Hundred and sixtieth part of the Barony and yet that he who had only so much was Baro Major appears in that the Common Law exempted him from being of a Common Jury as holding part of a Barony Besides the Doctor yields that more than such as are expresly mention'd in the contested Clause Tenents in Military service of King John's Charter viz. of Tenents in Capite were Members of the Great Councils which he does not always confine to the great Tenents and some of these were as inconsiderable and as unfit for Counsellors as the generality of the libere Tenentes for though he in his sixteen years search Against Mr. Petyt p. 41. could find no less a part of a Knights
men Against Jan. c. p. 99. so that even the Normans Estates were taken away too And this that erroneous Glossary makes under the Feudal Law too for from thence 't is inferr'd that the great Tenants in Capite had Right to impose Laws upon them that held of them and to exclude the whole Kingdom besides from the Great Councils This though no Conquerour the Dr. left out either as being ashamed of it being 't is little less than a Contradiction to say a man was no Conquerour and yet seized upon all the Lands of the Kingdom and forc'd them to submit to such Seizure so that he conquer'd the Land or because it contradicts his Notion of William's being a Conquerour so that he himself had as much reason to exeept against this Book as others but it seems Against Mr. Petyt p. 35. out of a stark Love and Kindness to Truth he left only what was against him but took what was for his Purpose And for the Support of it's Credit tells us a formal Story the Attestation to which from outward Circumstances I never thought it worth the while to examine since I have so much Reason from within it self to believe it to be spurious Against Petyt p. 13. and so ought he For if he have any respect to that great man's Memory he will not suffer him to say that William divided out the whole Kingdom to hold under the Feudal Law when before he had observ'd of Gavelkind the general Tenure of the Lands in Kent Feudalibus legibus non coercetur 3. The Lands of all these Grantees of King William the First descended to the eldest being held in Knights Service Si miles fuerit vel per militiam tenens tunc secundum jus regni Angliae primogenitus filius patri succedit in totum Glanvil lib. 7. c. 2. If a man be a Knight or holding by military Service then according to the Law of the Kingdom the Eldest shall succeed his Father to the whole But for the greatest Authority we have an Act of Parliament which having full Power to alter the Tenure 31 H. 8. c. 3. enacts that certain Lands in Kent shall descend as Lands at Common Law and as other Lands in the said County which never were holden by Knights Service us'd to descend Here the Descent of Knights Service is the same with Descent at the Common Law which was to the Eldest and this is oppos'd to the Descent of Lands in Gavelkind which was Socage And thus have I proved every thing which upon this Head was needful to vindicate the Right of the English and to prove that their Rights were own'd in Practice notwithstanding the vain Flourish of a Conquest It may be objected perhaps that the Feudal Law which was exacted and observed by and upon only the Normans might have related only to such as held immediately of the King for that his Grantees might and did often grant out to others and their Heirs for ever to hold in free Socage Yet this will not do because such Grantees would have been Free-men but all the Free-men of the Kingdom were Tenants by military Service though by their Tenure any of them were only to pay a Rose a Spur a Sum of Money or any other thing Therefore hereby is my Argument inforc'd if William had been a Conquerour in the Sense strove for as disseizing all the English and making Grants of their Lands to the Normans and that to hold by Knights Service and all the Normans both they who were here before William's Entrance if any such had any shares allow'd them and they that came in with him or followed for the spoil were under the Feudal Law requiring Knights Service and these were the only Free-men How came there to be such a Race of lawless Free-men as the Sokemanni p. 31. And how is it possible that the manner of holding our Estates in every Respect with all the Customs incident thereto should be brought in by the Conquerour p. 29. Whoever reflects upon these things will as he says of a reverend Judge acknowledge the Dr. to be very ignorant in the History of this Nation or that he spoke out of Design the words which I fairly cite from him in relation to the Conquest and the Great Council suppos'd to have been establish'd thereby CHAP. VI. Proved from the Beginnings of Charters and Writs that the English were not disseized of all by William the First THough even the former Head of the Socmen such as I find holding in parigio was a needless Addition to the particular Consideration of Domesday book Domesday which might serve instead of a thousand proofs that William the first did not divide all the Land of the Kingdom to his Followers and consequently did not impose upon the people such a Representative as is fondly conjectured Yet I cannot omit the mention of those numerous Writs and Charters Vid. numbers in the Monasticon which are directed Omnibus Baronibus hominibus suis Francis Anglis Or as one of the Charters of William the First Carta W. 1. Monasticon vol. 1. f. 397. into one County and so on occasion into all Archiepisc. Justiciariis Vicecomitibus Baronibus fidelibus suis Francis Anglis Eborascire Admit that Fideles signified Feudal Tenants this shews that the English had shares as well as others but here being the Vicecomites before Barones I should vehemently suspect That the Free-holders of the County were meant At least Carta Antiqua n. 11. we find the ordinary Free-holders and they English as well as French Vid. his Glos. complemented by Matildis as persons of some Quality and Interest in the Nation Matildis Dei gratia Anglorum Regina Episcopo London Justiciariis Vicecomitibus Baronibus Ministris omnibus fidelibus Francis Anglis Here being Ministri between Barones fideles the Ministry must be such as by their Tenures were bound to attend in the Wars and the Fideles the King 's ordinary Subjects there being no Mat. Paris to explain fideles here and help us out of this Difficulty which is made greater by King Stephen's Charter Archiepis Episcopis Abbatibus Comitibus Justiciariis Baronibus Vicecomitibus Ministris omnibus fidelibus suis Francis Anglis totius Angliae Nay to perplex the Cause the more we find under Subjects Free-holders English as well as French and these were such as were the Curia Baronum where Tenants in free and common Socage were Suitors as well as such as held by Knights Service Willielmus Comes Gloucestriae omnibus Baronibus hominibus suis Francis Anglis atque Walensibus 'T is not improbable that the Welsh Vid. Taylors Hist. of Gavelkind Jani Angl. p. 41. which were some of his Tenants were then all Socagers but then the Codex Roffensis shews how greatly the English were interested in the Counties in the time of William the First Praecepit