Opinion have been some Heraulds and have contended that by the Writ of Summons the Person was enobled and if his Descendents were so called for three Descents the Blood was enobled I conceive this Opinion to be erroneous For it is against a Maxime in Law that the King should pass any thing by Implication and as unreasonable to believe he might not have Liberty to require the Counsel of his Subjects without conferring an Honour upon them he did not intend Besides it will hence follow That during divers Parliaments of Edw. 1. almost all in Edw. 2. and many in Edw. 3. all the Judges King's Serjeants and many other were enobled for they had the same Writ the Barons had yet were never accounted such nay were often after such Summons omitted The known Case of Mounthermer is very pertinent to our purpose who having married the Relict of the Earl of Gloster who had a great part of the Earldom in Jointure her Husband was summoned as an Earl during the Minority of her Son but after he came of Age Mounthermer was summoned as a Baron during his own Life and after wholly omitted in his Descendents If it be said that his Summons enobled him but in regard his Descendents were not called the Blood was not enobled what will they then say to the Case of Radulphus de Camois who was summoned and his Son after him in 7 Edw. 2. yet in 7 Rich. 2. Claus. Memb. 32. in dors Thomas Camois the Grand-child was chosen one of the Knights for Surrey and discharged by the King 's Writ because he and his Ancestors were Baronets and the said Thomas was summoned and served in that Parliament not as a Baron but as a Barons Peer or Baronet which was an inferiour sort of Honour and signisied the same thing that Tenants in Cap. did in the time of King John But that these sorts of Peers were sometimes summoned and sometimes omitted at the King's Pleasure The only difference being that which appeared when they came thither the one appearing viz. The inheritable Barons in their Robes the others not but in Habits different from the Barons Now that there was this difference is made plain by those Authorities shall be produced under the next Head which is that there were a sort of Persons called Barons who were so by Tenure only that is to say who held of the King in Cap. and had such a number of Knights-fees and upon that account were summoned as Barons or rather as Barons Peers Mr. Selden seems to say in his Tit. Hon. Part 2. Sect. 17. pag. 690. That all Honorary Barons of that time whereof he speaks were for ought appears Barons only by Tenure The words are cautelous and his Expressions as became a Learned Man warily set down First Honorary Barons viz. Such as had the Honorary Name of Barons but not the Blood for such I take his meaning to be because he gives us no Definition of Honorary Barons nor why if it be admitted that Barons had their beginning from the number of Knight's fees which they held why Earls had not the like beginning who held of the King in Cap. as well as the others Now that there was a clear distinction between Barons enobled in Blood and those that held only in Cap. the one we find called Barones Majores the greater Barons the other Barones Minores lesser Barons The red Book in the Exchequer or Remembrancers Office attributed to Gervasius Tilburiensis speaks of it as an undoubted Truth Quidam c. Some hold of the King in Cap. things belonging to the Crown to wit greater or lesser Barons Quidam enim de Rege tenent in Capite quae ad Coronam pertinent Barones scil majores seu minores by which it appears they both held of the King in Cap. yet were distinguished into greater or lesser Fitstephens in the Life of Thomas of Becket Chap. 11. mentions Secundae Dignitatis Barones Barons of a second Degree Matth. Paris Anno 1215 hath these words Summoneri faciemus Archiepiscopos Episcopos Abbates Comites majores Barones Regni sigillatim per Literas nostras Et praeterea faciemus submoneri in generali per Vicecomites Ballivos nostros omnes alios qui in Cap. tenent de nobis ad certum diem Here we see two different sorts of Barons the one summoned by the King 's Writ the other by the Sheriff The first sort by Writs sealed by the Chancellor the rest by Writs to the Sheriff yet both held in Capite But certainly omnes qui de Rege tenent in Capite must be understood with a reasonable Restriction For it will be very evident to any Man who shall examine the Inquisitions post Mortem remaining in the Tower that much Land held per Baroniam was in the Hands of private Men who were never reputed Barons neither could these Inquisitions be understood of Tenures from Mesne Lords and not from the King because all Tenures per Baroniam were Tenures in Capite which must be from the King Besides if the Tenure of Land made a Baron Why were not the Purchasers of those Lands by the King's Licence of Alienation ever after the Stat. of quia emptores Terrarum called to Parliament as Barons The Case of the Earl of Arundel 11 Hen. 6. will not mend the matter for his Ancestor was created by Writ and the Castle entailed upon him so that he was called to Parliament not by having the Land only but by virtue of the Creation of his Ancestor and the Entail upon it In so much that I still conceive that the ancient Nobility from whatsoever beginning it arose was made inheritable by Creation and Investiture of Robes upon which sometimes followed Cnarters which directed how it should descend and the Confusion in Historians hath proceeded from their not distinguishing Barons from Barons Peers so called not from their Parity in Honour but in Estate and Tenure but wanting Investiture were called or left out at the Pleasure of the King This Distinction is clearly mentioned in the old Modus tenendi Parliamentorum printed by Mr. Hakewell Summoneri debent omnes singuli Comites Barones eorum Pares All Earls and Barons ought to be summoned as also their Peers I know the Authority of this Treatise hath been questioned by some Learned Men but by none with more violence and less reason than by Mr. Prin in his fourth part of his Register of Writs p. 591. To which easie Answers may be given if we consider the Translators out of the Saxon Tongue might easily translate Words which they thought of an equivalent Signification by words in use at that time as Wittena Gemot for Parliament and the like Others of as great Judgment have as strenuously defended the Authority of it Sir Edward Cook in his Jurisdiction of the Court of Parliament strongly defends its Antiquity and Mr. Hakewell pag. 135.
their share in making new ones This one would think were enough to content them without desiring to have a Judicial Power in Cases of Blood which I doubt not to prove is by Law forbidden them But I fear the charging this Desire upon them is rather an Artifice of their Enemies who by assixing this Calumny upon them which indeed is not their Design labour to lessen them in the Estimation of the World and by that means bring into Contempt both their Persons and Callings Many Examples I confess are given where Christian Emperours and Princes have made use of the Service of Bishops as Counsellors Chancellors and Chief Justices and the like but upon Examination it will appear that as to our own Kingdom the Offices of these Persons were much mistaken The Office of Capitalis Justiciarius Angliae was not to sit and judge Causes among Associates as at this day but was the Chief Officer of the Nation had the Appellation of Prorex and had Power in the Absence of the King to displace any Officer of the Cinque-Ports and to do any thing as Vice-Roy and Protector of the Kingdom of which see at large Sir Henry Spelman's Glossary in the Word Capitalis Justiciarius Upon Examination it will be manifest that when they sate in any such places their Service rather was to direct the Conscience to make amicable ends of Controversies to preach Peace to others and pursue it themselves till the Subtilty of Rome turned Religion into Policy and destroyed the Power of it How far the Edicts of Princes were binding is not my Task to enquire but only how far that of their not medling in Blood was a part of the Law and Custom of this Kingdom and observed here But what I have said in this Chapter especially as to the Baronies of Bishops I have delivered by way of Proposal not Determination and upon a clear Answer of my Reasons shall be ready to retract any thing I have written CHAP. II. I Come now to the Examination of his second Chapter in which the Recognitions made at the Parliament held at Clarendon come under Examination together with the Protestation made 11 R. 2. I call it a Parliament because I find it generally so esteemed by our best Lawyers and I think denyed to be so by very few Mr. Selden calls it that great Parliament at Clarendon Tit. Hon. part 2. ch 5. p. 703. the first Edit in fol. Coo. 2. Instit. ch 2. p. 6. and in many other places Hoveden saith there met Clerus Populus Angliae Where note he makes Clerus comprehend Bishops Abbots and all Ecclesiastical Persons and Populus both Lords and Commons contrary to what Dr. Brady hath asserted but very weakly proved But before I enter into a more narrow Examination of this Statute I think it not amiss to give a short Account of the History of those times from William the First to the tenth year of Hen. the Second when this Meeting was with Relation only to the King and the Church It will not be denyed that William the First disclaimed all Title to the Crown of England by Conquest and swore to observe the Laws of Edw. the Confessor which were our Laws before yet notwithstanding it is generally agreed that he erected Tenures in Capite and Baronies and that amongst others he obliged the Bishops who before held their Lands in Frankalmoign to do Service to his Courts and to hold their Lands in Cap. sicut Baroniam and not to make their so frequent Appeals to Rome and Journeys thither without his License being a thing contrary to the known Laws of his Kingdom which is made evident by Sir Edward Cook in Cawdryes Case and Sir Roger Twysden in his Vindication of the Church of England in point of Schism These were the Servitutes ecclesiasticae and the Pessimae consuetudines so much complained of by Mat. Paris and other Monks of that Age. But however so it stood during the Times of Will the First Will. the Second and Hen. the First after whose Death Stephen without any Right and contrary to their Oaths made to Maud Daughter to Henry the First then alive by the Aid of the Bishops gets into the Throne and by their Power was kept there till a Composition was made with Maud. In Recompence of this their breach of Oath Stephen frees them and the rest of the Clergy from answering in any other Courts but Ecclesiastical by which they now look'd upon themselves as free from the secular Power because they were answerable for no Offences but in their Courts In this State of things Stephen dies and Hen. the Second Son to Maud according to Capitulation is received to the Crown who after he had setled his Affairs in Normandy resolves to do the like in England but fearing some Opposition to his Designs might arise from the Clergy he first calls together an Assembly or Council at Westminster in the ninth year of his Reign where he propounds That all such of the Clergy as should be taken and convicted for any heinous Crime should lose the Priviledge of the Church and be delivered to the civil Magistrate to be punished for their Offences as other the Kings Subjects were To this the Arch-bishop Becket with the rest of his Brethren refused to give their Consent as being against the Liberties of the Church which were confirmed to them by King Stephens Charter This Answer put the King to a second Question Whether the Arch-bishops and Bishops would submit themselves to the Laws and Customs observed by them in the time of his Grand-father Henry the First They answered equivocally They would their Order the Honour of God and the Holy Church in all things saved with which Answer the King was more enraged But the News of this Breach coming to Rome the Pope writes and sends a Messenger from Rome charges the Arch-bishop to make Peace with his Lord the King and to promise to observe his Laws without Exception The Arch-bishop thus humbled repairs to the King at Woodstock and there promises to observe the King's Laws so far forth as was required Upon this Submission the King having before broken up his Council at Westminster summons this Parliament to meet at Clarendon in the tenth Year of his Reign where he gives in Charge that they should call to Mind and put in Execution and Writing the Laws of his Grand-father Henry the First Of which these following were the chief First that there should be no Appeals to Rome without the Kings leave That Lay-men might handle cases of Tithes That no Arch-bishop or Bishop should excommunicate any person who held of the King in Cap. or interdict any official of his without his leave c. The eleventh of them was at large what we have now under Consideration which I shall repeat and translate as it ought to be by and by But by this short Relation I have made of the History of those
immediately But I mnst needs say this Errour of Mr. Hunt's is the most excusable of any I meet with in his Book because the great Lord Cook leads him the way For he tells us and refers to the Mirror for Proof That by the Laws and Ordinances of ancient Kings and especially of King Alfred it appeareth that the first Kings of this Realin had all the Lands of England in demesne and les Grandes Mannors Royalties they reserved to themselves and of the Remnant they for the Defence of the Realm enfeoft the Barons of the Realm with such Jurisdiction as the Court Baron now hath and instituted the Free-holders to be Judges of the Court Baron Then he tells us in his second Institutes That till the Statute of 24. E. 3. whereby 't is provided that Alienations of Lands made by Tenants which held of H. 3. or of other Kings before him to hold of themselves should stand in force saving to the King his Prerogative of the time of his Great Grand-Father his Father and his own It was doubted whether the King's Tenant might have given part of the Tenancy to hold of himself Which is in Effect the same with Mr. Hunt's Notion of all the Tenants holding of the King in Chief 1. But 't is obvious that by what the Lord Cook said of the Laws of King Alfred and others whereby he supposes Tenures were erected not only of the King but of his Grantees who had their Court Barons His Opinion was that the King's Tenant might have granted out to hold of himself for otherwise how could he have had his Court of Tenants 2. Whereas he supposes that the Laws of King Alfred shew that the Kings had all the Lands in Demesne there is but one Law of King Alfred mentioned in the Mirror and that is for the great Councils assembling at London twice a year or oftner if need be Not any thing of Tenures 3. But amongst the Establishments made per cel estate per plusors Royes by several Kings in Parliament the Mirror says Assentus fuist que les choses suivant serrent appendant aux Roys al droit de la corone Soveraigne jurisdiction la Soveraign Signory c. come Franchises treasnre trove c. Then it goes on Ceux droits retiendrent les primers Roys delremnant de la terre enfefferont les Countees Barons c. Here 't is plain that no more than the Rights aforesaid amongst which Chief Cities Chief Ports and Great Mannors were named not all the Lands were retained by the first Kings And tho they are said to have Infeoff'd others of the rest of the Land to hold of them yet that does not necessarily imply that they had all in them before Nay the Mirror shews the contrary for it says That after God pleased to abate the British Nobility who used Force rather than Law he left the Realm to the most humble and simple of all the adjacent Countries the Saxons who came to conquer it from Almain de la quel gent il y eurent iesque quarant Soveraigns que touts soy tiendrent a Companions Amongst these forty Princes being equal and independent here was no King till they came to make a Choice And so the Mirror tells us they did having felt the smart of their Competitions Then Eslierent de eux un Roy a reigner sur eux Governer le People de dieu a Maintainer Defendre les Persons les Biens en quiet per les Rules de droit This shews they did not resign their Properties to the King for they chose him to defend them yet it seems they consented to take Grants from the King by such Services as were in common agreed upon And though they were principally from him as Head of the Body Politick yet any Man that observes the Forms of the Saxon Kings Grants will not think it a vain Imagination that such as I speak of should have been with universal Consent 4. But I cannot find any Warrant to question the Tenants Power at the Common Law to Grant out to hold of himself And I am sure there is an express Resolution for it in Dyer the Words are thus in English A Man seized of a Mannor in Fee held of the King in Capite before the Statute of Quia Emptores Enfeoffs J. S. of part of the demeans in Fee without saying more the Feofee enfeoffs another to hold of the Feoffor and his Heirs by 26 s. and 8 d. Rent for all Services The Land clearly is not held in Capite And the first Mesnalty is not held of the Feoffor as of the Mannor by Knights Service The Statute of 34 E. 3. mentioned before by the Lord Cook is not in the least contrary to this For whereas before Magna Charta the King's Tenant might have alien'd as he pleas'd and Magna Charta's Provision Quod nullus liber homo det de caetero amplius alicui vel vendat alicui de terrâ suâ quà m ut de residuo terrae suae possit sufficienter fieri Domino feodi servitium ei debitum quod pertinet ad feodum illud interpretatively gave a Fine to the King when his Tenant alien'd which was not due before that great Charter was made The Statute 34. E. 3. gave the King Fines for Alienations made in the time of any King even before the making of the Charter The Lord Cook cites an Answer to a Petition in Parliament 18. E. 1. Rex non vult aliquem medium which is no more than that he would not grant his Tenant who then petition'd Licence to alien However he had not forfeited his Land if he had alien'd but the King might have entred and seized the Land in the Name of Distress for a reasonable Fine for the Trespass Which the Lord Cook takes for the better Opinion And if the Land were forfeited to be sure the indivisible Service could not have been multiplied as Mr. Hunt imagines 'T is certain that tho at the Common Law the King or any other Lord might have distrained for his Services reserved upon the Original Grant in the Lands of any inferiour Grantee as well as in the Lands of his immediate Tenants yet there was this Inconvenience that the Wardships and Marriages were not so considerable when the Lands were parcell'd out and the Lands of the immediate Tenant who only was to be in Ward or to be married by the first Grantor were of less value Therefore was that Provision by Magna Charta by the Interpretation of which the King was to have Fines upon Alienations But tho the Inconvenience of Tenants aliening to hold of themselves was taken away by the Statute of Quia emptores Terrarum 18 Edw. 1. which gave Tenants free Power to alien their Lands and provided that the Alienees should hold of the Alienors immediate Lords with an Apportionment of Services Yet Licences of Alienation being
than the Suitors at the Curia being Summon'd The Legislative power they exercised as Members of the General Council or Parliament And the Iudicial power as Members of the Curia and were Members of the Curia as they held Lands of the King in Chief Whereas Men came to the Parliament generally upon the account of property in Land without consideration of tenure so it were free In short a Man may have that in an extraordinary capacity in Parliament which he has not there in an ordinary I likewise held that Becket was try'd for Misdemeanors only though according to the Language of those days they were crimina Laesae Majestatis and that the Tryal was in a bare Curia Regis when no more than Suitors to that were summoned Mr. Hunt 's Argument upon this follows If it was the Curia Regis wherein the ordinary Justice of the Nation was administred and not the Parliament was intended in the Assize of Clarendon in which the priviledge and indulgence under the quosque was allow'd to Bishops then the Assize of Clarendon is unduly urg'd against the Bishops judging in Cases of Blood in Parliament c. And consequently by the Assize of Clarendon the Bishops have no leave to withdraw If the Court wherein Thomas Becket was tryed was the Curia Regis then the Bishops judging in that Court in that cause doth most clearly declare that being a case in point that the quousque was an indulgence which they might use or wave Now to my thinking this seeming irrefragable Argument has no real force For not to mention his wrong interpretation of the Constitution of Clarendon nor yet his mistake of the Fact in relation to Becket 's Tryal as if he were Tryed for a Capital Offence In both which I doubt not but he will receive Conviction to the contrary from these two Learned Authors I am bold to say that there is no manner of consequence in the first Branch of his Dilemma which is the only thing that can lye upon me to answer And truly I conceive that it by no means follows that because the Curia Regis in the Constitution of Clarendon is not the whole Parliament but only that Court which either when a Parliament was held or when only a Council of Tenants in Capite or Lords assembled had the sole exercise of the Judicial Power that therefore Iudgements in Parliament before the Lords such as were Members of the Curia are not affected by that Constitution any more than we can now say the House of Lords cannot be concerned in any matter which does not belong to the whole Parliament I shall only add three Observations which may go far to put an end to this Controversie 1. That part of the Constitution of Clarendon which says of the Ecclesiastick Tenants in Chief Debent interesse Judiciis Curiae Regis quousque perveniatur ad diminutionem membrorum vel ad mortem was part of the avitae consuetudines ecclesiasticae If it had been a New Law then indeed whatever was not expresly forbidden were matter of Liberty But it being only in affirmance of the Ancient Law their Liberty went no further than the usage which was to be present only till such Causes came to be tryed 2. If Precedents are as Mr. Hunt censures them like an Oracle that will always give a Response agreeable to the Enquirer and Consulter then we must as I formerly did look to the Law in the Case without entring into the large Field of Precedents 3. If the Canons require the Bishops not to concern themselves in the Tryals of Capital Causes and those Canons have been sufficiently received to become the Law of the Land which these Authors prove undeniably then the Bishops must ever be supposed to have been absent when such matters came in question in Parliament unless they are mentioned there by name and cannot be comprehended under words common to them with the Temporal Lords any more than we can imagine that the Popish Lords who are excluded the Lords House by Act of Parliament yet still are Peers are Parties to any Judgement given by the Peers there SIR THE former trouble I gave you upon this Subject you pulled upon your self by desiring my opinion in it but for this I now give you I must beg your pardon it being singly upon my own account to do my self â—…ht and justifie what I then wrote to you against several aspersions cast upon me in a Pamphlet entituled The Right of Bishops to judge in Capital Cases in Parliament c. made it seems by the same person who had set out the other Pamphlet intituled The Honours of the Spiritual Lords asserted c. Of which I gave you some account in a Postscript to my former Letter and I think without any sharp reflection either upon that Author or his work The most I said was When I had instanced in three notorious falsifications of his The first is p. 112. where he quotes Mr. Selden to prove That the Spiritualty made their Proxies in Capital Causes in more Parliaments than the 21 R. 2. for that they did it likewise in the 2 H. 4. and 2 H. 5. which I shew was a mistake and only said he could not find it so in the Record it self but that he took it upon trust out of the Margin of Mr. Seldens book of the Priviledges of the Baronage p. 125. where there is such a quotation of the 2 H. 4. and the 2 H. 5. but wholly misapplyed by our Assertor of Honours for Mr. Selden alledges that Precedent to shew that whereas 2 H. 5. it was by the then Earl of Salisbury assigned as an error in the Attainder of his Father who was condemned of High-Treason in the 2 H. 4. because it was done Sans Assent des Prelates which are the words of the Record Without the Assent of the Prelates by the way speaks nothing of Proxies it was then adjudged to be no error and his Petition rejected which in truth is a strong Argument to prove that the Prelates had no right to be present at such Tryals and Judgments which is the main Question between us And though he being of another mind had maintained his opinion by so gross a prevarication I was so far from retorting it upon him with any bitterness saying It was disingenious and a suppressing of truth and not setting things down faithfully which is his ordinary language concerning me Or with insipid jeers saying I wear a sharp Sword a Trenchant Toledo as one of the younger house of great Alexander and that he brings me to the Sun like Alexanders Horse and telling of the Magical combate in Apuleius and a City of Birds in Aristophanes and such other scurralous passages as his Book is full of which shews the sweetness of the Gentlemans nature and the goodness of his cause which he maintains only by railing and false assertions Whereas I rather lessened his fault saying only that he was mistaken by being
Contradictio in adjecto an Imparity in a Parity Thirdly If the Husband be enobled the Wife must be so but the Wife of a Bishop is not enobled therefore the Person of her Husband is not for the Wife and the Husband are one Fourthly If a Bishop were a Peer he could in Parliament time be Tryed no where but in the House of Peers but Matter of Fact we find to be otherwise Therefore I think I may safely conclude that Bishops are no Peers But before I leave this point I must answer one thing which is said They say they hold by Baronage and therefore they are Barons as Fitz Stephen makes the Bishops in their altercation with the Temporal Lords about the pronunciation of the Sentence against the Arch-bishop saying Non sedemus hic Episcopi sed Barones Nos Barones vos Barones Pares hic sumus We sit not here in Parliament as Bishops but as Barons we are Barons and you are Barons Here we are Peers Fitz-Stephen's authority signifies nothing to me but this I know is said and believed by many therefore it must be answered to disabuse many who may think that holding by Barony creates a Baron which it doth no more than holding by Knights service makes a man a Knight or holding by Villanage makes a man a Villain which many do to this day even but here at East-Barnet and yet are good Free-men and no Villains for it works not upon the Person as Fleta saith l. 3. c. 13. the service they do is ratione tenementi non personae So the Bishops holding per Baronagium are thereby made subject to do the service of Barons and to obey the Kings Writ of Summons to attend the Parliament which makes them Lords of Parliament but affects not their person The Bishop of the Isle of Man is a Bishop as well as any of the rest first instituted by Pope Gregory the Fourth as Sir Edward Cooke saith but not holding by Baronage hath no place nor vote in Parliament We must know that this Tenure by Baronage was first created by William the First of all the Lands which held of the Crown in Capite consisting of so many Knights Fees these Lands were divided some to Lay-men some to Ecclesiastical persons And these were all bound to certain services though not all to the same and among others all to attend in Parliament whenever the King pleased to Summon them and so became Lords of Parliament This continued so till King Iohn's time when the number of the Temporal Lords growing so great and numerous that King made some alteration which certainly was setled and confirmed by Parliament but justly the time when this was done is not known the Record of it being lost The alteration was that none of the Temporal Lords should come to Parliament but such as received the Kings Writ a particular Summons for it These were called Barones Majores those who were not so summoned and so did not come to Parliament were stiled Barones Minores and were still Feodal Barons as before and held their Lands per Baronagium but were not Lords of Parliament Therefore it was not barely holding by Barony which made the person a Baron even in those times there was an act of the Kings requisite even in the Summoning of him to Parliament to make that Honour to affect and enoble the Person and so to fix it and make it hereditary in the Family which way of dignifying a Person continued till the eleventh year of Richard the Second when Iohn de Beauchamp Steward of the Houshold was first created by Patent Baron of Kiderminster since which time it hath still been practised to make them all Barons by Patent But the Bishops have still continued upon the first Institution of being by their Tenures obliged and accordingly Summoned to attend in Parliament which made them Lords of Parliament but not Peers of the Realm And now I come to his last point making them a Third Estate for which he cites the Bill presented to Richard the Third in his first Parliament where they are made so and to this I can oppose other passages in Parliament clean contrary as that 2 H. 4. where the Temporal Lords and they together are made to be one of the three Estates and other instances may be given of the same nature But let us a little consider how that Bill was framed 1 R. 3. it was first devised by certain Lords Spiritual and Temporal and other Nobles and notable Personages of the Commons a Party picked out and chosen for that purpose who presented it in the behalf and in the name of the Three Estates of this Realm of England and what was this to do to declare Edward the Fourth to have lived in adultery with Dame Elizabeth Gray whom he had married being precontracted to Dame Ellianor Bottiler daughter to the Earl of Shrewsbury and consequently all his Children Bastards Edward the Fifth a Bastard and Elizabeth his Sister a Bastard afterwards married to Henry the Seventh which entituled him and his Posterity to the Crown set an end to all the foregoing competitions and setled it as it is at this day this Bill as the Record saith was first presented and delivered to their Soveraign Lord the King that was to R. 3. whom they made so in the name and on the behalf of the said Three Estates out of Parliament and now by the said Three Estates assembled in Parliament ratified and confirmed And truly I must say this is not an authority to be bragged of for making the Bishops a Third Estate But then let us see if the Bishops sitting in the House of Lords have the necessary and essential qualifications of being a Third Estate in Parliament without which they cannot be a Third Estate there That the Clergy is one of the three Estates of the Realm and they the Principal and Chief of them no body denies And that they are Summoned to Parliament as a Third Estate of the Realm the dignified Clergy personally others of the Inferiour sort by their Procurators and Representatives is likewise confessed but not to have any part in making of Laws for the good Government of the Kingdom no not so much as in matters meerly concerning the Church but they may offer and propose and be consulted with but whatever they agree upon must come to the two Houses of Parliament and receive the stamp of their Authority before it can be presented to the King to become a Law and be binding to the People This is the work of the Convocation which meets at the same time with the Parliament and there is convened the Third Estate of the Realm Where the Bishops make the Upper House and there sit as Bishops according to their Spirituality But their Summons gives them another capacity which is to meet in the House of Lords and there Cum caeteris Praelatis Magnatibus Proceribus regni de arduis negotiis Statum regni Ecclesiae
what Men may say of themselves or passeth under common Estimation of Men but what upon serious Examinition of the Question shall be found to be true I shall endeavour to make it appear that many who held Lands in Cap per Baroniam or per servitium Baroniae were not enobled in Blood nor had Right to demand their Writ of Summons as the Noble Barons had but were to expect the King's Will and Pleasure and were often left out These were secundae Dignitatis Barones or Barons by Tenure only of which some might probably be adopted into the Nobilitas Major afterwards as Barones adscriptij yet at first were not so and this was to them an Honour but to the Bishops a Burthen who held their Lands free before and had no Honour conferred upon them as the rest had For tho it be true that all the great Noble-Men held per Baroniam yet was it not their Tenure which gave them that Right as I shall shew by and by These second sort of Barons were called Barons Peers because they held of the King in Capite as his immediate Free-holders and were stiled Barones Regis for the Word imported then no more but Men holding of the King's Person in Capite These subdivided their Lands to others under the like Military Service these were likewise called Barons from their appearing at their Lord's Court called the Court Baron and Baronagium became a Word of general Signification comprehending those liberè Tenentes or Sutors to the Court Baron who together with the King 's immediate Tenants who were the Barones Regis that is the Kings immediate Free-holders made up the Communitas Angliae and comprehended all Persons except such as held in Villenage Besides these thus made by the King there were others some found here some brought out of Normandy of great Nobility and Extraction who had of their own great Possessions as Earldoms and Counties in this Country and others brought over with the Conquerour out of Normandy of an Inferiour Rank to whom he gave the like Honour out of the Lands of those adhered to Harold which all held of him per Baroniam but by Creation were many of them afterwards made of a higher Rank and were called Comites Regis and Majores Barones Regni they being possessed of the like Honours in their several Countries before The Bishops I conceive were not under any of these Ranks but were called to Parliaments ratione Episcopalis Dignitatis not ratione Tenurae only of which they complained as a Burthen Creation they had none to any higher Honour than Episcopal their Tenure could not give them a greater Honour than to be Barones minores or Barons Peers Neither can I find in any Act of Parliament or Record that they were called Lords before the time of Rich. II. and then first called Lords Spiritual to shew their Honour arose from their Spiritual Function and not from any Temporal Possessions nor the name of Barons applied to them except by themselves who perhaps finding the Burthen of their Service which before was free were willing that others should give them the Title tho there was no more reason that their Tenure by Baron Service should make them Barons than that Knight Service should make the Tenant a Knight Having thus cleared my way I shall in the next place shew that these Barones Minores or Barons Peers were sometimes summoned by Writs to Parliament and sometimes left out The Abbot of Feversham one under the same Rule with the Bishops was summoned to 12 Consecutive Parliaments as Tenant in capite per Baroniam and then left out 19 Edw. 2. Rot. penes remem Dom. Regis in Scall Thomas de Furnival had been sumoned to 30 Parliaments and yet upon an Amerciment in the Exchequer pleads he was no Baron now except he had held in Cap. per Baroniam or part of a Barony he could not have been summoned at all as a Member of Parliament Whether his Plea were allowed doth not appear upon the Record but by this and some other Records in my hand to the same purpose it seems to me that many that held per Baroniam were not Barons but at the best Bannerets or Barons Peers I cannot find by my utmost search that any thing hitherto hath madeit apparent that Baronies were ever annexed to the Possessions of the Bishops but Men have generally taken it for granted that they were so They say that William the first soon after his Reception to the Crown of England did introduce new Tenures and established Counties and Baronies and did then order that Bishops and the Parliamentary Clergy should hold per Baroniam or sicut Baroniam which the Learned Mr. Selden saith in the language of those Times signified the same thing For he saith that tenere de Rege in capite and habere possessiones sicut Baroniam and to be a Baron according to the Laws of those Times are synonimous Seld. Tit. Hon. part 2. pag. 704 Cook Hakewell and others say they hold per Baroniam But the Proofs any that I have met with offer to make good this Division by William or that Tenure per Baroniam did infer more when a minor Baron in my Judgment are not cogent What they urge is taken out of Wendover and from him transcribed by Matth. Paris He first greatly blaming the Act of William hath these Words Episcopatus Abbatias omnes quae Baronias tenebant catenus ab omni servitute saeculari libertatem habuerant sub servitute statuit militars irrotulans singulos Episcopatus Abbatias pro voluntate suâ quot Milites sibi successoribus suis Hostilitatis tempore voluit a singulis exhiberi That is He established under Military Service all Bishopricks and Abbeys which held Baronies and at that time had freedom from all Secular Service inrolling them all and appointing according to his Pleasure what Souldiers in time of War they should severally find unto him and his Successors Mr. Selden finding the contradiction in these Words that their Baronies which should have kept them as he thought free from Secular Service as the words import were the only thing that bound them to it thinks there ought to be a Parenthesis after Baronias in purâ perpetuâ eleemosina eatenus ab omni servitio saeculari c. and makes the words run thus All Bishops and Abbeys that held Baronies in Frankalmoign and in that respect freed from all Secular Service c. And backs this Conjecture by the Authority of Mr. Cambden who he conceives might have seen some Copy where those words were But he need not have put himself to the trouble of that Conjecture had he translated eatenus at that time as the word signifies and never that I know in that respect However finding further that this would not take away all doubt because the words refer not to all Bishopricks and Abbeys but to such only as then possessed
in Convocation as I have sufficiently I hope made appear pag. 19 20 c. of this Discourse As also that they had the Appellation of Barons and Peers not that they really were so which must have enobled their Blood but in respect of their Tenure in Capite sicut Baroniam or per Servitium Baroniae and for the most part so called by themseves only Our Author's Suggestion p. 151. that they sit in Parliament in a double Capacity as it is new so is it not solid He saith when they sit in the House in a judicial way they sit only in the Capacity of Temporal Barons and that this appears by the Constitution of Clarendon where the King requires their Attendance as his Barons But that in their Legislative Way they have a farther Capacity as representing a third Estate in Parliament I say this Fancy is new for I do not believe any before him look'd upon them as representing a third Estate in Parliament and not representing it I know they have been said to sit in respect of their Possessions which are Temporal in their own nature but not so when given Deo Ecclesiae but that they sate in any other Quality than Spiritual Persons I never heard nor can conceive Methinks if they have a Capacity to sit in the Quality of Temporal Barons they should also have a Capacity to change their Spiritual Robes and put on Temporal The Constitutions of Clarendon he saith require their Attendance in Judicature as his Barons and from thence would infer they sit in the Quality of Temporal Barons But how doth this follow I hope they may sit as Spiritual Barons But when all is done this Allegation of his is not sincere for the words are Debent interesse judiciis curiae Regis sicut caeteri Barones or cum caeteris Baronibus that is to say 't is their Duty to be present in Trials in the King's Court with the other Barons or as the other Barons are there present which words are far from inferring that they sit there in the Quality of Temporal Barons no more than the Judges rather that they sit not as Barons at all but only amongst them who are so It is evident therefore that his first Argument drawn from the Constitutions of Clarendon is not solid His next Suggestion that they are a third Estate in Parliament if by Parliament he mean their Convention in Convocation from the issuing out of Writs to the Guardian of the Spiritualties in the Vacancy of the Episcopal See I shall not contend with him only I think it from hence plain that they have Right to sit as Members of the Convocation properly where with the rest of the Brethren they make up a third Estate in which Writs there is generally a Clause of Praemunientes added to shew that other Clerks are to be chosen to sit in Convocation for which reason the Guardians in their Vacancy have their Writs directed to them lest the Convocation should not be full Now how this can prove them a third Estate in the Lords House I should be glad this Author would instruct me so that his Conceit of their sitting there in a double Capacity is of no weight and all his Precedents cited to that purpose might have been spared which do not in the least measure prove that the Bishops sit in the Lords House as a third Estate because Clerks shall be chosen to sit in Convocation by Writs directed to the Guardians of the Spiritualties where there are no Bishops or when they are beyond Sea rather evinces the necessity of a Convocation to meet in Consultation as to Ecclesiastical Matters which are only proper for their Function Lastly Let it be observed that his Quotations out of the Author of the Letter pag. 93. as to Doctor Standish his Case are mistaken the Author's words are the Judges said The Lords Spiritual have no Place in Parliament by reason of their Spiritualties in which respect in truth their place is in Convocation but by reason of their Temporal Possessions that is holding their Tempoporal Possessions in nature of Baronies The Scope of that Book is to shew that a Parliament might be held without them who indeed were no Barons but had liberty to sit among them by an Indulgence in respect of their Possessions And at last I am perswaded our Author will hardly be bound by that Opinion for if that be true how can they sit there as a third Estate if their Right to sit there be only as Temporal Barons This Authority is only from Kelway 7 Hen. 8. 184. See the Case at large in Burnet Our Grand Questionist goes on and endeavours to prove and clear that intricate matter as it hath been made touching the Interest the Clergy then had in Parliaments as well as Convocations but chiefly to prove that all the Interest they had in Parliaments was not meerly upon the account of their Temporal Baronies which the Bishops and many of the Abbots then had this he saith is the great but common mistake of the Author of the Letter 'T is first to be observed that he hath not proved that to hold Land by Baron-Service and to be a Baron is all one which by me is left doubtful as appears by what is said in the first Chapter of this Treatise Neither see I any reason why tenere per Baroniam should make a Baron more than Tenere per Militare Servitium should make a Knight Secondly That what he now saith is only a Pursuit of his precedent Conceit that the Bishops sit in the Lord's House in a double Capacity because as he saith there is a Distinction made even in Parliament between the several Estates of the Clergy and Laity How far this is argumentative and how far his Precedents warrant what he affirms I shall examine by and by only in the mean time would desire him to tell me whether they could come to Parliament at all without first receiving the King's Writ and in the next place Whether the King 's Writ imply any other Capacity than as Spiritual Persons holding their Possessions per Servitium Baroniae and voting among the Lords in respect of their Lands which are in their own nature Temporal Estates in the Hands of Spiritual Persons but by their Dedication to God made spiritual also which is as much as can be drawn from what Mr. Selden saith in the place quoted by our Author pag. 151. That they met as Counsellors in the Saxon's time in their Wittena Gemot I will not deny but whether by virtue of any Writ Summons or rather by general Allowance as Counsellors or what other way he cannot prove Records there are none or very few and Historians give but a dark account of those Times and things then one but which way soever they then sate certainly by William I. their right of sitting was much altered the Frame of things being in some measure altered also in so much that they
many all the Grantees were Tenants in Capite and owed the same entire Service that the first Grantee did 1. His Errours upon his first and second Heads cannot be truly shown unless they be fully transcribed in their full Dimensions When the Conqueror says he did innovate his Tenures in Capite and made all Men of great Estates Barons and by their Tenures and Estates Members of Parliament we then had such Laws quas vulgus elegerit and the nwe had materially our three Estates though not so well sized and sorted as since We had then I say many great Free-holders in every County that by their Tenures were Members of Parliament whereas now we have but two and tho the People did not not chuse them yet the Men of that Order seem chosen once for all interpretatively by the People in their consent to the Government In this Constitution scarce any Man that was fit to be chosen but was without the Peoples choice a Member of Parliament as there now are more who are fit to be chosen than they can chuse so that the Barones Minores were then instead of Knights of the Shire and the Barones Majores Bishops and Earls did then as now make the Parliament Besides Barones Majores and Minores there was at this time a distinction between the Barones Regis and Barones Regni which I will explain to prevent any Mistake that may grow thereupon The Barones Regni were Barons by Tenure and made part of the Government by the Constitution of the first William and so in process of Time called Barones Regni because they had by Continuance of that Constitution acquired a fixed Right to that Honour But because of the frequent Wars between the Barons and the Kings at that time they did omit to summon some who were Barons by Tenure and now duly called Barones Regni to Parliament and called others that had no Right to be called Ratione Tenurae and those they called Barones Regis This was ill taken by the Lords and was one of the occasions of their War with King Iohn upon which they obtained his Charter for Remedy as follows Barones Majores Regni sigillatim summoneri faceret the truth of this as to the Fact will appear by the History of those Times and that this is the reason of this distinction of Barones Regis and Barones Regni doth appear by the recited Charter of King Iohn where the Majores Barones are called Barones Regni for the Barons were more concerned for the losing of their Honours than they were at the Communication of the like Honour to others and with reason though all Honours are lessened by the numbers of those that participate of them The Inconveniency and Mischiefs of this Constitution were very great and very sensible by making the Government to consist of one Order there was no third to moderate and hold the Ballance I shall not here enlarge upon his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the Conquest nor upon his Conjecture of one of the Occasions of the Barons Wars nor yet upon his notion of three Estates materially the same when but one Order and by the same reason if all were in one by virtue of his Spiritual and Temporal Power and he had by a Conquest all the property of the Nation here the Government was materially the same with Lords Spiritual and Temporal and Commons in his Belly as when he had disgorged and scattered abroad the Property and Power But to the purpose of the above-mentioned Heads 1. Whereas he will have it that only Bishops and Earls were Majores Barones it appears manifestly to the contrary from the words of King Iohn's Charter which he mistakes Submoneri faciemus Archiepiscopos Episcopos Abbates Comites Majores Barones Regni Sigillatim Here are Majores Barones Regni after Bishops and Earls And I need not here remind him of the Vanity of the Notion of making Majores Barones exegetical or comprehensive of what went before 'T is certain if Bishops were Majores Barones as well as Earls here are others intended also and why are not such as held whole Baronies as some did Great Barons Besides you shall find numbers of Barons to have received particular Summons even to the Wars according to the Provision in King Iohn's Charter for summoning the Majores Barones Sigillatim I will give him some Names and see whether he makes Earls of them all Three Bassets William de Harecourt Roger de Somerey Iohn Forreigner Extraneus Richard de Grey Ern. de Bosco c. But if all these were Earls what thinks he of the nine hundred and odd who received special Summons De veniendo ad Regem cum Equis Armis usque Berwicam super Twedam in the 29th of Edw. 1. 2. Whereas he will have it that the Barones Regni were Barons by Tenure and the Barones Regis by Call to Parliament he might have known that every Baro Regis was a Baron of the Kingdom but every Baron of the Kingdom was not Baro Regis in a strict Sense Wherefore accordingly King Iohn's Charter confines the special Summons which as I say was to the Curia Regis to such Great Barons of the Kingdom as held in Capite There being after Majores Barones Regni in a different Provision Et omnes alios qui de nobis tenent in Capite Wherefore when all the Barons of the Kingdom were summoned it took in the Majores and Minores both those that held in Capite and otherwise But when they are used distinctly 't is wholly contrary to his Supposition for the Barones Regis were properly and strictly they who held immediately of the King as all manner of Authorities warrant Indeed I am almost ashamed here to bring Proof of a thing so evident But he may please to observe that Thanus and Baro were always of the same Acceptation Thanus Regis was strictly he who held Lands of the King by any kind of Tenure and so was Baro Regis tho somtimes appropriated to him that held by Knights Service and an ordinary Thane was no more than an honest Free-holder by any sort of Tenure as appears by Dooms-day-Book it self But I conceive the Difference between Baro Regni and Regis is sufficiently shewn in this following Authority In the 23d of Hen. 2. Benedictus Abbas tells us the King summoned Magnum Concilium de Statutis Regni sui coram Episcopis Comitibus Baronibus Terrae coram eis per Concilium Comitum et Baronum Militum et hominum suorum he made the fam'd Assize at Northampton Here are Barones Terrae or Regni and Barones Milites et Homines sui Here either all the Barones Regni were Barones Regis or sui And then his distinction between Baro Regni and Baro Regis falls to the ground there being no Difference or else there is that very Difference I stand upon viz. That the Barones Regni were comprehensive of all sorts of Barons the
Barones Regis were the King's Tenants in Capite Amongst which there were Knights at least And the Homines sui I take it were his great Officers and Justices These made a Select Council acting in Parliament and out of it either in a full Body or contracted by Agreement as I could easily shew But the Tenants in Capite were the King 's ordinary Council and therefore manifestly the Assize there was drawn up and advised by them in full Parliament with the Consent of all the Barons of the Kingdom under which in those ancient Times omnes quodamodo ordines Regni continebantur as Mr. Cambden observes But 't is observable that here 't is Homines sui or Regis to shew that the Justices and others who came not upon the account of Free-hold but as the King's Servants were not to be termed Barones sui A few Years before this there was a Summons for an Assembly at this very place and 't was manifestly no more than a Curia Regis 1. Whereas there were the Barones Terrae at the last above named to this were summoned only Tenants in Capite 2. Whereas then they were to exercise a Legislative Power de Statutis Regni this was only for a Judicial Power such as Tenants in Capite exercised by themselves for 't was only upon the Case of Becket 3. Whereas the former was called Magnum Concilium de Statutis Regni this Magnum Concilium as some call it was but Curia Regis Barones Curiae Regis adjudicaverunt eum esse in Misericordia As Hoveden informs us Now the Question is Whether those Tenants in Capite the Barones Curiae were Barones Regis which that they were I think is very obvious they being by reason of holding of the King obliged to attend at his Court And that these were the King's Barons or Barons of his Court or owing Suit and Service there must needs be synonimous But utterly to silence this Gentleman he grants that Hen. I. was crown'd in an extraordinary Convention of the People that is more than Tenants in Chief consented to that Change in the Succession Now that very King's Charter says 't was Communi Concilio Baronum Regni when among these he comes to mention such as held of him in Chief he calls them his Barons emphatically not but that all were his Barons in a remote sense Si aliquis Baronum meorum vel Comitum sive aliorum qui de me tenent mortuus fuerit haeres suus non redimat Terram suam sicut faciebat tempore Fratris mei This Relief it seems in his Brother's time was uncertain and immoderate and was by him reduced to the old Standard as 't was in Canutus his time as appears by the Comparison of the Laws of both The Earls Relief was eight Horses four with Furniture four without besides Arms and a certain quantity of Gold The Thanus Regis primarius as in King Canutus his Law or qui ei proximus as in Henry the 1st paid for Hereot or Relief which there were synonimous four Horses two with Furniture two without c. The Mediocris Thanus paid one Horse with Furniture and other things more or less according to the Custom of the Places under different Laws Here was Thanus or Baro Regis primarius the same with Baro Major and Thanus Mediocris or Baro Minor one of the alij qui de nobis tenent in Capite mentioned in King John's Charter And surely no Man will say that this Relief was not payable because of tenure in Capite By the 17th of King John it had become customary for the Relief to be paid in Money as appears by his Charter Siquis Comitum vel Baronum nostrorum sive aliorum tenentium de nobis in Capite per Servitium Militare mortuus fuerit relevium debeat habeat hareditatem suam per antiquum relevium scilicet haeres vel haeredes Comitis de Baroniâ Comitis integrâ per centum libras haeres vel haeredes Militis de integro feudo Militis per centum solidos ad plus et qui minus debuerit minus vel secundum antiquam consuetudinem feudorum Here Baro noster was manifestly the same with Thanus Regis in the older Laws and Baro de Baroniá integrâ with Thanus primarius or qui ei proximus The Mediocris Thanus Regis was the Miles or libere tenens one holding in Chief by Knights Service by whatsoever Proportion of a Knights Fee And by this time I think 't is evident that they whom Mr. Hunt supposes to have been the only Barones Regni were in a strict Sense the Barones Regis and but part of the Barons of the Kingdom 3. Whereas he Imagines that if a Tenant in Capite by Knights Service granted out to never so many they all owed the same entire and indivisible Service to the King and were his Tenants in Capite in this he must needs have been mistaken But that I may not seem to misrepresent his Sense I shall transcribe his Words and then endeavour to bring them out of their Clouds The Feudal Baronage says he was as large and as numerous as the Tenures by Knights Service in Chief which were capable of being multiplied several ways for every part of the Fee however divided the Services reserved upon that Fee that were entire and indivisible were to be performed by the several Proprietors of the several parts of the divided Fee In this Paragraph there are three postulata 1. That Tenure by Knights Service in Chief was Tenure by Barony 2. That every Tenure by Knights Service had some entire indivisible Service incident to it 3. That this entire indivisible Service was multiply'd to the benefit of the King upon the Tenants aliening any part of the Fee The two first I agree to his Hands but dispute the third I conceive with good reason For upon the first view 't is evident that if the Grantee of the King's Tenant in Chief by Knights Service would before the Statute of Quia emptores terrarum have been a Tenant in Chief by reason of the entire and indivisible Service incident to the Tenure of his Land by the same reason the Grantees of Land held of the King in Chief by Socage or other Free Tenure would have been Tenants in Capite because of Fealty which is as indivisible an incident to all other Free Tenures as Homage or any thing else belonging to Knights Service And by Consequence upon this Notion since the King even before the pretended Conquest had ratione Coronae the Supream Signiory of all the Land of the Kingdom as the Mirror shews All the Land of the Kingdom would have been held of the King immediately before the Statute of Quia Emptores terrarum And then to be sure ever after since that provided that Lands shall be held as the Feoffor held over which by this opinion must always have been of the King
testifies to have seen an Exemplification of it under the Great Seal of Ireland in the time of Henry the fourth testifying the same to have been sent into Ireland by Henry the second for a Form of holding Parliaments in that Kingdom So that we must either admit the Great Seal of Ireland to be forged or confess the Modus as ancient as Henry the second 's time Many admit that it was sent into Ireland as a Modus for that Country but was not so for England which seems to me unreasonable it not being likely we should give them a Patern different from our own who now observe most of the Rules there given Daniel Anno 1133 in the Life of Henry the first will tell you that in his time the word Parliament began to be in use after the Convocation of his Parliament at Salisbury in the 15th Year of his Reign Nay much ancienter even as old as Canutus if we believe the old Book of Sir Edmundsbury who in the fifth Year of his Reign summoned all his Prelates Nobles and Great Men to his Parliament as you may see more fully Rights of the Crown p. 100. By all which of much more that might be added we may see how dangerous it is to judg of Books by the promiscuous use of words I have made this short Digression to the end that what I shall say hereafter may be made clearer I shall now apply my self to the Case of the Clergy and consider their Right to sit in Parliament This Right of theirs must grow since the Conquest from the Tenure of their Land in Capite sicut Baroniam and consequently they cannot be reckoned but amongst the Barons by Tenure and are not properly Barons but Peers no way enobled in Blood nor of longer continuance than the Foundation upon which the Tenure is built continues Thus we see in the Dissolution of Monasteries the Tenure was extinguished The same in Bishopricks as that of Westminster and others where the Corporation being dissolved the Tenure as to them was extinguished I know very well they would not now be thought to sit Ratione Episcop Dignitatis as Bishops but as Barons In that famous Wrangle at Northampton touching Becket who should pronounce Sentence against him The Bishops tell the Lords Non sedemus hic Episcopi sed Barones nos Barones vos Barones pares hic sumus Fitst cap. 10. col 2. Seld. Tit. Hon. part 2. cap. 5. pag. 706. We sit not here Bishops but Barons We Barons and you Barons are here Peers or Equals Not meaning by these words that they were otherwise Peers than such as their Tenure made them which was only to hold in Cap. sicut Baroniam or in the nature of a Barony for although that tenere per Baroniam sicut Baroniam perhaps are all one neither of them imply a Barony but only the Services of a Barony which the Bishops by their Tenure were bound to perform as also the Abbots And I am the more confirmed in this Opinion because I do not find that any Examination was made what their Possessions were nor of how many Knights Fees they consisted but were they more or less the Tenure was the same whereas 't is probable the Possessions of some were above twenty Knights Fees the rate of an Earl others less than thirteen yet still the Tenure and Peerage was the same Neither is any Record or Patent produced nor I think can be where any Barony was annexed to their Possessions 'T is evident that out of one Bishoprick others have been taken as Peterborough out of Lincoln Oxford out of Gloster yet these Bishops came to Parliament and still under the same Tenure and Service In Edward the sixth's time Cranmer had his Episcopal Dignity during Pleasure Was he then a Baron at will We may safely conclude from the Complaint of all Historians of those Times that Tenure in Capite and their Services which arose by it was put upon them as a Burthen not as an Honour but imposed upon them to make them know they were Subjects which they could hardly be brought to believe having such Dependance upon Rome Yet was it not thought fit wholly to exclude them from all Councils and therefore this expedient was found out that they should hold their Lands by doing such Services as Barons did and sit amongst them in Parliament in the nature of Barons which they improved afterwards to the Appellation of themselves by the name of Barons but never could to equal Priviledges with those Persons who were truly such Petrus Blesensis in his Tractate de Institutione Episcopali hath these words which I have occasion to cite more at large towards the end of this Treatise pag. 129. Quidam Episcopi Regum munificentias eleemosynas antiquorum abusivè Baronias Regalia vocant in occasione turpissimae Servitutis se ipsos Barones vocant Some Bishops abusively call the Bounties of Princes and the Alms of their Ancestors Baronies and Royalties and taking occasion from that base Slavery he means certainly the Slavery in performing those Services put upon them by their Tenure call themselves Barons This he much and largely inveighs against from all which it may reasonably be collected that they gave themselves that Title rather than that it was given them by the King who yet sate in Parliament together with the other Barons not as a distinct Estate from them but involved with them as part of a third Estate which was intirely represented in Convocation For it seems to me very clearly that they never were a distinct Estate in Parliament if by Parliament you understand that part of it which consisted of Counts and Barons yet were they the chief and principal part of a third Estate in Parliament in respect of the Convocation which began continued and ended with it and where their Debates Gifts to the King and other Transactions bind only their own Body Neither is it reasonable to believe them a third Estate here otherwise than they are so accounted in other parts of the World to wit a part of that Body the Clergy who being a Select Portion or Lot of the Lords and Embassadours of Christ look'd upon themselves as not accountable to any Secular Tribunal Neither is it material whether they sate mixt with the Laity as perhaps they have sometimes done for this cannot alter their being a third Estate as Clergy-men let their Votes be gathered together or apart Indeed I cannot see how it is possible they should be a third Estate in that House where they sit among the Lords for besides their Unwillingness to own that they sit as Bishops but as Barons I would fain have any Man tell me how it comes to be so Dr. Heylin will tell you that Clerus was never taken for the Bishops distinct from the other Clergy By what Title do they then claim it by any Grant from the King that should be produced
of settled Prerogative were not taken away from the King he not being named in the Statute By that Statute indeed if a Tenant in Capite aliened with Licence the Alience became Tenant in Capite for the Statute divided the Signiory But how it could be at the Common Law in any other Case than that of Copartners who are but as one Heir and plac'd in the same Relation to the Lord I cannot imagine I find in the Statute of Ireland this of Copartners is mentioned as the Law of England In Regno nostro Angliae talis est Lex Consuetudo quod siquis tenuerit de nobis in Capite habuerit Filias heredes ipso patre defuncto antecessores nostri habuerunt semper nos habuimus cepimus homagium de omnibus hujusmodi Filiabus singulae earum tenerent de nobis in Capite in hoc Casu Which shews that the Case of Copartners being a single Instance of the continuance of the same immediate Service notwithstanding the division of the Fee was an Exception out of a general Rule But I dare say no body that understands any thing of the Feudal Law as it has been received in this or other Nations will be of Mr. Hunt's Opinion in this particular 3dly Mr. H. would have done well to have answered the Objections against the supposed Conquest before he concluded for it and I shall take it for granted 't is a Question heartily begg'd 'till I find an Answer to these Arguments in Ius Anglorum ab antiquo 1. That the Histories of those Times prove undeniably that William the first came in upon Terms which he swore to at his Coronation and solemnly confirmed afterwards This indeed was a Conquest in the Language of those times as 't was distinguish'd from an Hereditary Right but no otherwise Thus in King Iohn's time a Man pleads that his Father had such a thing de Conquestâ—… suo viz. by his own Purchase or Acquisition 2. That Dooms-day-Book it self demonstrates that Men enjoyed their Lands under their old Titles And those Laws of St. Edw. which the Histories assure us were confirmed by Compact with William the first without particular Confirmation of their Estates 3. That we have later Records of the allowance of Titles derived from before the Norman Acquisition nay even of the whole Palatinate of Chester the Title to which was laid only in Descent even after King William's Confirmation 4. That ancient Historians and Dooms-day-Book confirm the Opinion of that Judg in Edw. III. time who informs us that William the first disseized only them that were in Arms against him and forfeited by opposing that Title which the Nation received Till Mr. Hunt has answered these Arguments amongst others in Ius Anglorum ab antiquo I hope he will not be angry that some are so critical that they will not call the first William Conqueror especially since Conquestor and Conquestus cannot now be reduced to their old peaceable Signification And therefore are by no means to be admitted unless we take the sense of the Judicious Lord Clarendon who rebukes Mr. Hobbs for insisting upon William the first his Title by Conquest as being what he himself renounced and abdicated if he ever had it If Mr. Hobbs says that unhappy Great Man Had taken the pains and known where to have been informed of the Proceedings and Transactions of William the Conqueror he would have found Cause to believe that that great King did ever dexterously endeavour from the time that he was assured that his Possession would not be disturbed to divest himself of the Title of a Conqueror and made his legal Claim to what he had got by the Will of Edward the Confessor whose Name was precious to the Nation and who was known to have a great Friendship for that Prince who had now recovered what had been his And he knew so well the ill Consequence which must attend the very imagination that the Nation had lost its Propriety that he made haste to grant them an Assurance that they should still enjoy all the Benefits and Priviledges which were due to them by their own Laws and Customs By which they should be still governed as they were during that King's whole Reign who had enough of the unquestionable Demesnes and Lands belonging to the Crown of which he was then possest without a Rival and belonging to those Great Men who had perish'd with their Posterity in the Battel with Harold to distribute to those who had born such Shares and run such Hazards in his prosperous Adventure And those Laws and Customs which were before the Conquest are the same which the Nation and Kingdom have been since governed by to this day with the Addition of those Statutes and Acts of Parliament which are the Laws of the Successive Kings with which they have gratified their Subjects in providing such new Security for them and Advantages to the Publique as upon the Experience and Observation of the Ages and Times when they were made contributed to the Honour and Glory of the King as well as Happiness of the People Many of which are but the Copies and Transcripts of ancient Land-marks making the Characters more plain and legible of what had been practised and understood in the preceding Ages and the Observations thereof are of the same Profit and Convenience to the King and People And upon Mr. Hobbs his Supposition that William the first at his Reception had dispens'd with the Subjection of the Ecclesiasticks by the Oath he took not to infringe the Liberty of the Church The Lord Clarendon has to the same purpose with the former or rather as evidence that there was no colour of a Conquest these words They who know any thing of that time know that the Oath he took was the same and without any Alteration that all the former Kings since the Crown had rested on a single Head had taken which was at his Coronation after the Bishops and the Barons had taken their Oath to be his true and faithful Subjects The Arch-bishop who crowned him presented that Oath to him which he was to take himself which he willingly did to defend the holy Church of God and the Rectors of the same to govern the universal People subject to him justly to establish equal Laws and to see them justly executed Nor was he more wary in any thing than as hath been said before that the People might imagine that he pretended any other Title to the Government than by the Confessor tho it is true that he did by degrees introduce many of the Norman Customs which were found very useful or convenient and agreeable enough if not the same with what had been formerly practised And the common Reproach of the Laws being from time to time put into French carries no weight with it For there was before that time so rude a Collection of the Laws and in Languages so Forriegn to