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
who have not read this Charter from falling upon this easie way of answering the Doctor 's whole Book and therefore they castrate the Charter and leave out all the provision for the Liberties and free Customs of the several integral parts of the Kingdom as if their imaginary General Council had swallowed up the Liberties and Freedoms of all them who held not of the King Nota A Tenure in Capite is when the Land is not holden of the King as of any Honor Castle or Mannor c. But of the King as of the Crown as of his Crown or in Chief and this some would rather have effected than that the Commons of England should be thought to have had any Right affirm'd by so ancient a Law Spelman's 2 part of the Glossary Tit. Parliamentum and that this was apprehended when the marvellous Discoveries worthy to be inquired into under Title Parliament Bless'd the World may well be gather'd from the printing only as much of that part of the Charter which is now in Debate If but one had an hand in it as in the Publisher's own Judgment he thought would fit his Purpose concealing the rest In that Glossary there is no more than this Spelm. Gloss. Col. 452. Nullum Scutagium vel Auxilium ponam in regno nostro nisi per Commune Concilium Regni nostri 1. Nisi ad corpus nostrum redimendum 2. Ad primogenitum filium nostrum Militem faciendum 3. ad primogenitam filiam nostram semel maritandam ad hoc non fiat nisi rationabile auxilium Nota the Omission here Et ad habendum Commune Consilium Regni de auxiliis assidendis aliter quam in tribus Casibus praedictis et de Scutagiis assidendis summoneri faciemus Archiepiscopos Abbates Comites Majores Barones sigillatim per literas nostras praeterea faciemus summoneri in generali per Vicecomites Ballivos nostros omnes alios qui in Capite tenent de nobis ad certum diem sâ—ilicet ad terminum quadraginta dierum ad minus ad certum locum in omnibus literis submonitionis illius causam summonitionis illius exponemus Et sic factâ summonitione negotium procedat ad diem assignatum secundum Concilium eorum qui praesentes fuerint quamvis non omnes summoniti venerint By the partial citation of this shred or end of the Charter 't is a clear case that Et ad habendum Commune Concilium Regni is there in express words appropriated to Tenants in Capite whatever may have been reserv'd to others in the general provision for all their Liberties and free Customes and the Publisher hath so dexterously and effectually patched the Fragments together that the Reader must be forced according to those curious Appearances to assent to the Publisher and Doctor 's fallacious Assertions that none but the Tenants in Capite made the Commune Concilium Regni the City of London and all other Cities Burroughs Ports and Towns or Parishes whose Rights are there reserved being clearly left out in the Glossary whereas 't will be very difficult to one that reads the whole together not to think that admitting ad habendum Commune Consilium Regni be there appropriated to the Kings Tenants in Chief yet the Aid and Escuage they are impower'd to assess must be such as concern'd them onely A reservation for the Liberties and free Customs of all the parts of the Kingdom following immediately upon mention of the Common Council of the Kingdom which undoubtedly had of Right and Custom a larger Power than barely the granting of Taxes But if Et ad habendum Commune Concilium Regni de auxiliis assidendis aliter quam in tribus casibus praedictis ought to be joyn'd to the Liberties and free Customs of the whole Nation reserved by King John's Charter then that darling Notion of a Parliament of the King's Tenants only no more to be prov'd than that we had Parliaments of Women as well as others falls to the ground Vid. Jan. p. 239. And by the Dr's good favour there was no need of proving that amongst the other Customs of the Cities Burroughs Against Jan. p. 4. c. this of enjoying a Right of being of or constituting the Common Council of the Kingdom was one of them any otherwise than from the express words of the Charter nor could I justly be blam'd for not going first to prove that such were Members before my saying that if they were so before and at the making of the Charter their Right is preserv'd to them by it and is confirm'd by the Charter of H. 3. c. 9. Since in all mens Logick but the Dr's the Argument is to be laid down before it can be made good and the thing to be prov'd here is but the minor of a Syllogism Which Argument being founded upon Fact which the Dr. would have to be the onely Controversie between us p. 1. I may wave for a while and yet there 's no doubt but I prove a Right if I shew that amongst other Liberties and free Customs all parts of the Kingdom here enumerated were by the Words of King John's Charter to enjoy a Right ad habendum Commune Concilium Regni The Dr. agrees So Matth. Paris Against Jan. c. p. 62. that King John's Charter and that which H. 3. granted in the 9th of his Reign were alike in all things Wherefore if I can shew the likeness I hope 't will qualifie and abate our Author 's great Wrath for my proving from thence a provision for a more General Council than one made up of Tenants onely For p. 63. being like 't is not necessary that the Words should be the very same but the Sense and if we are sure by Record that we have the right words we are certain if Records may explain Matthew Paris that the likeness he meant consisted in the Sense Since therefore in the Great Charter granted 9 H. 3. as I find also one in Secundo there is in a Chapter intire by it self The hand-writing of E MS. peues Dom. Petyt as the Lord Cook cites it Scutagium de caetero capiatur sicut capi consuevit tempore H. avi nostri and no other provision is in any part of the Charter made for the Great Council of the Nation than what is contain'd under the Liberties and free Customs of every particular Place and yet this wholly agrees with and expresses the Sense of King John's Et de Scutagiis assidendis must be disjoyned from ad habendum Commune Concilium Regni aliter quam in tribus casibus praedictis And if so then the Tenants in Capite who are under that Division have no express provision there made for their Summons to the Great Council of the Nation but are with others left for that to the antient Law as it was in the time of H. 2. whose Laws both Charters that were in
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-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
Brothers Pater eorum tenuit T. R. E. hold Stoche 5. Godwin holds Draicote Ipse mater ejus tenebant T. R. E. 6. Aldwi 7. Brismar 8. Alwerd 9. Donno 10. Huscarle 11. Osmer 12. Eldred These hold several parcels of Land Devonshire Devenescire 1. Colwin holds Chelesword Ipse tenuit T. R. E. 2. Godwin holds Curemton 3. Edred holds a Furlong of Land in Bicheford 4. Alward holds Colsovenescote 5. Ausgot holds Madone 6. Donne holds Niwetone 7. Alwin holds Midelcote 8. Edwin holds Buterlei 9. Vlf holds Wadeham 10. Algar holds Chevendestone 11. Alric holds Wasberlege 12. Aluric holds Essaple 13. Lewric holds Betunie 14. Saulf holds Dunesford 15. Alveva holds Lacobescherche 16. Alfhill holds Chenudestane Buckinghamshire Bockinghamscire Ipse tenuit T. R. E. 1. A certain Splay-footed man holds Eurifel in Frankalmoign 2. Lewin holds one Hide in Wavendone 3. Lewin Cawra holds in Boneston Hund. 4. Chetel holds in Moslai Hund. 5. Godric Cratel holds in Mideltone 6. Suarting and Herding two Brothers hold Lands in Cotehale Hund. Oxfordshire Oxenefordscire All the Burgesses of Oxford have in Common without the Wall Pasture yielding 6 s. 8. d. The County of Oxford pay the Rent of the three Nights that is fifty pounds for Lands they hold 1. Theodoric the Gold-smith holds one Hide in Nortone and two Hides and half in Welde these Lands his Wife held freely T. R. E. Staffordshire Statfordscire Terra Chenwin aliorum Tainorum Regis 1. Chenwin holds of the King three Hides in Codeshale Ipse tenuit T. R. E. 2. Dunning holds Chenestone 3. Alric holds Stagrisgeshowe Ipsi has terras tenuerunt T. R. E. 4. Aswold holds Chrochesdene 14. More hold Lands of Titles prior to King William's amongst which the Earls Hugh de Ferriers and Alberic de Vere the first of which held St. Warburgh of Chester in the time of the Confessor Notinghamshire Snotingham-scire 2. Elwin and Vlviet held one Carve of Land in Osbernestune now Swan and Vlviet hold it 5. Aluric Buge and Vlchet did formerly and now do hold Lands there Yorkshire 1. Swen 2. Vlf. 3. Turchil 4. Chetel 5. Ramechil 6. Ravenchil 7. Torchil 8. Game 9. Osward 10. Tored 11. Torber 12. Vctred held several Lands in the time of King Edward as in the time of William the First Besides several dispossess'd who have their Titles allow'd Lincolnshire Lindesire 2. Sortebrand and Chetelburn hold several Lands 3. Godrie holds four Oxganges which were Agremund's his Fathers Glocestershire 1. Chetel holds one hide and â—ne Rood in Wenrick Glocestrescrie 2. Osward holds Redmertone Ipse tenuit T. R. E. 3. Edric the Son of Ketel holds â—andintone 4. Eddiet holds Bichemerse Pater ejus tenuit T. R. E. 5. Brictric holds four hides in â—achamtone 6. Alwold holds Pignoscire 7. Edward the Son of Reinbald olds Aldersnude 8. 9. 10. 11. 12. Elsi Dous Brictric Edric the Son of Cheâ—el and Madoch held Lands as 〈◊〉 the former King's Reign Herefordshire Herefordscire 1. Edric holds Last 2. Elmer holds half an hide of the King Ipse tenuit T. R. E. 3. Osborn the Son of Richard holds Mildetune In these 15 Counties Vid. Spelman tit Domesday of thirty describ'd in Domesday besides others left â—ut of this Survey as Northumberland Westmerland the Bishoprick of Durham and Lancashire except some part of it be taken into Yorkshire or Cheshire the City of Oxford and the Shire which held Lands in their Publick Capacity several omitted through neglect and others on purpose as I before observed there are above one hundred anâ— eighty Free-holders who derived noâ— under King William's Title and besides the Generality whose Titles are not exprest many of which however were of English names SECT 2. OUr wise Author supposes that King William gave all the Land of the County of Cheshire to Hugh de Abrincis Against Mr. Petyt p. 29. his Kinsman and a Norman and wisely ask'd Whether this was all Crown Lands The pretended Proof of this he brings in another Book So that for a long time we must rely upon his Mastership's Authority Against Jani c. p. 15. But this is his Demonstration In Domesday-Book after 't is said what belongs to the Bishoprick Totam reliquam terram Comitatus tenet Hugo Comes de Rege cum hominibus suis. But I can find no greater matter in this than that under the King he was chief Lord of â—â—e Fee But the gift of the whole â—ounty generally implies not any thing â—ore than the Government of it â—hus whereas he would have it that the â—eatest part of Shropshire was given to Roâ—r de Montegomerico Against Mr. Petyt p. 29. Scyropesberie Domesday sayes â—e had the City of Shrewsbury tot â—omitat and the whole County But â—hat is soon explained torum Domiâ—ium quod Rex Edwardus ibi habebat cumâ— 2 Maner quae Rex ipse tenebat and the â—hole Power or Right to Govern it which King Edward had there with â—â—elve Mannors which the King himself â—eld And this was all the Land that was given but could not be the greatâ—st part of the County Farther Cheshire Domesday for Cheshire Leofwick King Edward's Brother had it before in the â—ame manner as Hugh had And sureâ—y neither he nor his Brother conquer'd â—he whole County nor had Ed. the Crown â—y Inheritance And Lupus having it in â—he same manner that Leofwick had it beâ—ore 't is evident that this County was not held under the Feudal Law brought â—n by William Besides to shew that the Earl had â—ot the whole County 't is manifest there were many great Proprietors there as Earl Robert who held Westone Râ—chard de Vernon who held Estime Gislebeâ—â— Venables whose Family continues at thâ— day But indeed the Estate is in an Heâ— Female and several others some 〈◊〉 which for a long time enjoyed thâ— Dignity of Barons which Dignity think is not yet extinct there SECT 3. WHereas this Friend to the Engliâ—â— Nation for so doubtless hâ— has rendred himself would impose up on us Against Mr. Petyt p. 43. as if the English had neither Estate nor Fortunes left and therefore it could be no great matter to them by what Law Right or Propriety other men held theiâ— Estates I have already made it evident thaâ— they had Estates and Fortunes left shall now shew that they claimed their Rights and had them allowed according to the Antient Law And before I come to this or rather in Confirmation of it I must observe that even lesser lawful Customs thaâ— those whereby the Descent of Estateâ— was preserved were continued after the reputed Conquest thus in the Burrough of Wallingford in Berkshire Domesday were Consuetudines omnes ut ante fuerant All the same Customs which were there before so you shall find numerous Instances of the same Services from the Lands or Houses
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
If a man holding of the King in Capite by the Service of two Knights alien'd one or two Knights Fees with Licence without particular Exemption from the King's Duty in this Case the Burden went along with the Land but if he had according to Licence made sufficient Provision for the King's Service the rest he might have rais'd for his own use and though the Service continued to be reserved to the King yet the Alienee before the Statute of Quia emptores terrarum which was introductory of a new Law was Tenant to the immediate Feoffâ—r this Tenant had no Right to be at the King's Council of Tenants and yet was to answer Escuage and all manner of Charges as assest by the Tenants in Chief who were the only Council for the purposes of such Tenure Si quid novisti rectius istis Candidus impâ—rti si non his utere mecum If our wise Author greater Truths have taught Shew me wherein or take what I have brought To go on with Great and General Councils 21 H. 3. we find at a Great Council Comites Barones Milites liberi homines Whereas 't is said on the other side that none under the Degree of Knights came At another Jani c. p. 244. Barones Proceres Magnates ac Nobiles Portuum Maris habitatores nec non Clerus Populus universus 'T is a ridiculous Answer to this that all these are put together only to make an Impression upon the Pope as if the Sense of the whole Nations Representative whatever it were were not as much to move a Foreign Prince as the whole Nations 45 Hen. 3. Three are chosen out of every County to represent the Body of the County An Agreement was made between King and People 48. H 3. Jan. c. p. 246. A Domino Rege Domino Ed. filio suo Prelatis Proceribus omnibus et communitate regni Angliae To all this p. 265. may be added that long before where the ingenuitas regni were consulted Here are Instances enough of greater Councils than such as King John's Charter settles as I have observed those there were made a Council only for the matters of their Feud they met ordinarily three times a Year and in that were ordinarily a Court of Justice and he betrays his Ignorance not to say more who affiâ—ms the contrary 'T is no Objection to this that sometimes we find Regnum Angliae at it for still 't was ad Curiam pro more Not that the Kingdom used to come of Course but then came to that Court which was ordinary or of Course That the Kings great Officers and Ministers of Justice were there I have always yielded and that 't was no Grievance to the Tenants to have Justice administred without them at other times and therefore it makes not against my Sense that these often sat without the Tenants Yet their sitting was not at stated times and therefore they were not Curia pro more Either way there was a great Council distinct from the less 1. As to the persons composing the one and the other The Great Council had the whole Nation of Proprietâ—rs or of Representatives of their Choice in the other at the most the King had only his Tenants in Chief and Officers and Ministers of Justice 2. As to the matters treated of the one treated of matters of extraordinary Justice the other but ordinary 3. For time the great Council was summon'd as often as the State of the Kingdom required it the other as a Court of Tenants and Officers had times ascertain'd not but that as occasion might offer it self they might be summon'd according to King John's Charter Nay may be after that they never met but upon Summons the lesser Court of Officers and Ministers of Justice met oftner than either but not of Course And thus have I answered his Arguments from King John's Charter by which he labours to prove That Tenants in Chief only composed the Great Council or were all the Nobility of England and have given a clear Account of that unintelligible piece as he is pleased to represent it leaving out what I offer'd upon the Question of the Bishops Voting in Capital Cases since he had no other way of answering it than by calling it impertinent Rhapsody Tho if 't is no better to be answer'd 't is not Rhapsody and fancyful Stuff and if the first ground from our Laws to dispute their Right mentions it in relation to the Curia Regis 't was not surely impertinent to consider their Right the Curia from whence 't was excluded being so directly to my purpose There are other things incidentally coming in which I divide not into Heads being they serve but to explain those which I have rais'd To which may be added That our Author by the Exercise of his Faculty of Story-telling and setting forth the Power of the great rebellious Barons Against Mr. Petyt p. 210. has given us to understand That the Commons were not first brought into the Great Councils in the 49 of Hen. 3. unless we believe that the great men would coâ—sent to ballance and weaken their own Power I may put the Question in his own words upon another Occasion Can it be reasonably imagined Against Mr. Petyt p. 234. 235. that they should give way to or establish such Laws as would undoe and destroy their own Settlement in Power Wherefore the Argument is strong that till then the Commons came in their own Person but that then the Great men having the Power in their hands clip'd their Wings But let us see his weighty Arguments against my sense of this Charter In Answer to my third Head he puts me off with the Fallibility of a Parlialiament but if moral Certainty without Infallibility will not satisfie him in matters of the greatest Concern we may know what he would be at But forsooth this was not a full Court of Tenants because as was usual only some few attested the Fact In Opposition to my Fifth p. 10. 11. he tells us that even voluntary Gifts to the Crown are called auxilia nay even such as were more than Advances upon Services But what proof is there that such were here meant when not only Services because of Tenure with the Advances upon them but what came from more than Tenants are called Auxilia too As general Objections against my Sense 1. If Tenants in Capite were a great Council of the Kingdom p. 12. for Aids and Escuage only which is hardly reconcileable to Sense Why so good Dr. May there not be a great Council especially a Common-Council to a particular Purpose Nay you your self confine it's Power to the raising of Taxes Why was the Cause of Summons to be declared Because of the occasion requiring greater or less Aid 2. Lastly If all Free-men or as our Author saith in other places all Proprietors were Members of the Great and General
of granting Aid and Escuage which onely is mentioned in that part of the Charter which relates to the Curia whether ordinary or extraordinary I say continued to the 34. th of Ed. 1. at least Jan. c. p. 192. of Right it should unless swallow'd up in Parliaments But whenever the Court which granted such Aid as the Charter means ceas'd to be held pro more thrice a year it ceas'd to be an ordinary Curia This might have been either by the pleasure of the King who needed not to summon his Tenants but when he pleased Or else it might have been in the 49th of Henry the Third Against Mr. Petyt p. 110. when our Author says there was a new Government I agree with him that the King 's ordinary Court continued in the several Kings Reigns Against Ian. c. p. 53. in all its branches and divisions and derivative Jurisdictions and yet not the same any more than a man is the same with his Executor that represents his Person and is the same in Law The House of Lords had the Jurisdiction of the ordinary Curia most properly being as he himself yields 't was ex taâ—tâ multitudine of men holding in Capite that some had the special Writs which made them of the upper House and coming in the Degree and Circumstances of Tenants in Chief they had the same Power The Justices and Officers that were not Tenants in Chief must needs have been but Assistants in the Ordinary Curia as they have ever been in the House of Lords and the inferiour Tenants without doubt were to serve on Juries as the Knights were Jurors in Berklay's Case before the House of Lords nor do I find that these inferiour Tenants had any other Power or Interest except that of giving Taxes which is the only Power which our Author seems to yield to the greatest Council The Power of the Justices Itenerant or of them that were setled at Westminster-hall was derived from the King and his Curia either ordinary or when it cas'd to be ordinary yet in effect continued the same Court. And thus as late as the time of Edward the Second you shall find the Curia then not only to have Writs of Error brought thither or to impower the Barons of the Exchequer who were properly under it to determine matters concerning the King's Revenue or concerning Tithes but for Causes of all Natures to be tryed before any Judges they awarded the Writs and appointed the Judges sometimes mandetur Justiciariis de utroque Banco Rot. Parl. 8 Ed. 2. r. 209. These Benches were very anciently fix'd at Westminster-â—all but still they were so dependant upon the King 's more immediate Curia that often they were only to hear the Cause and certifie to the higher Court what appear'd to them as was usually done by those who were assign'd to hear the Petitions delivered in Parliament Sometimes Judges were impowered Ad audiendum terminandum matters tam ad 〈◊〉 Regis quam aliorum But certain it is that where an Estate was deriv'd from the King's Grant or the King 's Right and Title might be affected by any matter in Question 't was usual for the Curia to order that Judgment should be stay'd till there was a new Power had after Certificate how the matter stood Thomas de Multon and Anthony de Lucy Rot. Parl. 9 Ed. 2. n. 65. pray that there being need of inspecting the Rolls of Chancery in order to the clearing their Title to certain Lands there might be a view of the Records and Remembrances Part of the Answer is as follows Mittatur ista Petitio sub pede sigilli Willielmo Inge sociis suis Justiciaâ—iis Regis ad placita Regis coram Rege teâ—enda assignatis unà cum processu super â—egotio in dictâ Peitione contento coram Rogero de Brabanzon sociis suis priâ—s habito quem quidem processum idem Rogerus per breve Regis consilio Regis apud Lincolnum liberavit mandetur eis per â—reve quod examinato diligenter toto negoâ—io praedicto vocatis servientibus Regis aliis qui fuerint evocandi in negotio illo â—rocedant prout de Jure fuerit faciendum Ita tamen quod Rex super Recordo processu dicti negotii certioretur antequam super hoc ad redditionem judicii procedatur serutendum insuper in Cancellaria in Scaccario si necesse fuerit rationes evidentiae siquae pro jure Regis in hac parte poterint inveniri Si necesse sâ—erit It seems the Justices of the Common Pleas Brabanzon and his Fellows not being particularly commission'd could not proceed to Judgment for want of Power to look into the Rolls of Chancery nor could the Judges of the King's Bench though they had Power of Inspection then given them proceed with effect till they had certified the King in his more immediate Curia The Heirs of Bartholomew Redman â—â—t Parâ— 8 Ed. 2. n. 114. petition that whereas they held Lands of the Abbot of St. Bennet by certain Services which Land they had let to the Queen she obliging her self to discharge the Services but had not they might have Grace and Remedy This was to be examined in Chancery Responsa 〈◊〉 per Coâ—ci iâ—m but the Judgment was referred to the Curia Reseratur Regi Rex saciet justitiam To this Curia all manner of Justices were accountable for their Actions So the Judges of Assize in Cornwalâ— being complained against for acting irregularly Rot. Parl 8 Ed. 2. two are appointed to examine the matter and to certifie the Council who had reserved the Judgment to themselves In short the supream Judicature over all Causes was in this Curia the House of Lords the very same which the Court of Tenants in Chief with such others as us'd to come pro more had before and yet there was a common or ordinary Administration in the Judges But our Author who is by Fits the kindest hearted man in the World proves my Notion to my hand out of Britton Against Jan. c. p. 28. 29. Nous voluns quae nostre Jurisdiction soit sur touts jurisdictions en nostre Royalme which where it relates to Judicature must be meant of the King in his Curia or House of Lords and there as Judge the King has Power in all Felonies Trespasses Contracts and in all other Actions personal or real But because it would be too great a Trouble for the King in that Court to hear and determine in all plaints c. Therefore En primes en droit de nous mesm de nostre Court avouns issint ordyne que pur ceo que nous ne sufficens my en nostre proprie person à oyer terminer touts quereles del people avant dit avouns party nostre charge ex plusieurs parties sicome icy est ordyne Can any thing be more plain than that all inferiour Courts were deriv'd
some of his Favourites who were Pledges for William's Performances Sure I am as far as my Authors can assure me after this Classick Writer has blasted their Credit I will not say with a contagious Breath he promis'd as largely to the rest of the Nation as he did to the People of Kent If the men of Kent had their Representatives at least at the Electing him to Rule over them and were not subjected to him as a Conquerour nor were their Lands parcell'd out by him though we are taught è Cathedra that he took away from the English their Estates and gave them to his Normans So that according to his Reasoning the Flemmings Against Mr. Petyt p. 35. Anjovins Brittains Poictorins and People of other Nations who made up a great part of his Army and came with him under considerable men their Leaders came out of stark love and kindness They though Adventurers with him being content he should gratifie onely his Normans Nay he divided all the Lands of the Kingdom amongst his great Followers even the Lands of those Normans who had Estates here before But if I say the men of Kent enjoyed their Right as abovesaid what Reason beyond what I have assign'd is there to think that it was otherwise with the rest in general some of which were Adventurers with him but all equally sharers in the extent of his Promise to maintain rectam legem Though he and some of his Successors chose Succession as the most honourable Title yet that he had none but Election is evident in that he was not Heir to the Confessor Domesday in Surry Acstede Goda mater Heraldi tenuit IRE In another place there called Soror Regis Edwardi but rather Harold was who was Son to Goda that King's Sister Nor could the Confessor and Harold lawfully set the Crown upon his Head without the Consent of the Kingdom Nor yet could he gain a Title by Conquest over those who vielded upon the Terms of enjoying their Laws and Liberties and who unless those Terms had been granted had both Right and Spirit too to have kept him from Reigning over them Abating the factious conspiring to set him up against Edgar Etheling who though he was not as now the Law is actual King before Coronation yet ought to have been crowned the People had sufficient inducement to chuse William 1. Because he was a Prince of a less Potent Nation and therefore would make an Accession to England and give them footing upon the Continent from whence they might spread the glory of those Arms which were reproach'd with that necessity of Self-defence which makes even Cowards Valiant 2. He was a Prince who had governed his own Country with great Prudence and Moderation Brevis Relatio Willielmi ad finem Syl. Taylor p. 188. nor would attempt upon that acquisition to which many Circumstances invited him without the Consent of his Senate there 3. Harold being dead they knew not any man so likely to defend them from those Enemies which threatned and molested them from abroad or that could better secure them from the Tyranny of many Masters at home and the Distractions which in all probability would arise from their Feuds and Competitions for the Crown which every one that could draw the Mobile 〈◊〉 him would be catching at till it was plac'd and setled Thus I think 't is made evident that William the first his Title was by Election and that the Election according to the infallible Rule was factious since how unanimous soever they might be at the crowning him Feuds and Factions wearied them into the Agreement more than the Force of his Arms but I shall not give him this Author 's obliging Epithetes 'T will be said perhaps if the Election be void then he is let into a Title by Conquest yet how can that be when the very Conquest or rather Acquisition whatever it were was by this means he being received upon Terms Foedus pepigit Besides if there were no Election then the People never yielded were never conquered And there was no more a Conquest of the whole Nation than an Election by the whole The actual yielding of some and tacit Concurrence of others made his Title SECT 3. That he makes a Title to the French King from the Acquisition of his Feudal Tenant the Norman Duke upon his Notion of the Feudal Law BY the Law of Feuds as he receives the Supposititious Sir Henry Spelman for so out of Reverence to his Memory I take leave to call the Second Part of the Glossary till 't is reconcil'd to Truth or till our Author who goes upon the same grounds makes them good Superior quisque Dominus Regulus agit in suos subditos Against Mr. Petyt p. 104. in rebus ad feodum suum pertinentibus ex ipso jure feodali jus dicit Every Superiour Lord Acts like a little King over those that are under him Little it seems for the number of his Subjects not the extent of his Power over them and in things belonging to the Feud gives Law even by the very Feudal Right that is to say is absolute In another place Consentire quisque videtur in personâ Domini sui Capitalis prout bodie per Procuratores Comitatûs vel Burgi 2 Glos. tit part quos in Parliamentis Knights and Burgesses appellamus Every Inferiour seems to consent in the person of his Lord as at this day we do by the Representatives of the County or Burrough which we in our Parliaments call Knights and Burgesses What no Citizens amongst them Truly I should think by the Comparison that a Legislative Power was delegated to the Lords of the Feud as there is it seems to the Representatatives of only the Counties and Burroughs but that it is Ex ipso jure feodali Further our State-Quack has it Glos. p. 7. As all their Estates arose from his Beneficence What if some purchas'd theirs So they depended on his Will Originally That is the Feudal Tenants ib. p. 4. all Vassals held their Lands at the Will of the Lord and whether they were Delinquents or not he might at his Pleasure take them from him When this rigid Law expir'd he does not vouchsafe to inform us however he yields the Substance of all in acknowledging that the superiour Lords gave Law or were absolute and represented or govern'd the Tenants in the Legislature till the 49. H. 3. To assume William was Feudal Tenant to the King of France and according to the Feudal Law long after his time King John was summoned to the French Court to answer for the Death of Arthur of Britain who was another Feudatory to the French King William himself was not only subject to the Feudal Law but thereby was as much under his Superiour Lords despotick Power in relation to what he got as the most inferiour Tenant William depended upon that King's Will his Dominion was forfeitable without any default
date of the English Slavery what shall we judge of his Vagaries p. 43. Not directly reach the Controversie which he himself owns to be impertinent I shall take no notice of Ecclesiastical or Kentish Titles because the Church and that County may be thought to have been particularly exempted from the common Calamity 〈…〉 nor shall Freeholders of Houses have a place here I must observe that though the same names are often repeated Sir-names being then most in use we cannot tell but that they might have been different Parties but however if there were so many distinct Properties 't is enough Surrey 1. Hugo de Port was a very great Proprietor Domesday He was not Tainus Regis as may be found under the Title Terra Hugonis de Port many Mannors he had and as appears in Hampshire he had at least two Mannors Cerdeford and Eschetune from his Ancestors before William's Entrance And even this is a ground to believe he was a great man that he had a Sirname or Addition Whereas Camdens Remains p. 136. if we believe the great Antiquary Mr. Camden Sirnames were not setled among the common People fully till about the time of Edw. 2. 2. Oswald holds Michelham Idem tenuit T. R. E. 3. Seman holds in Mideham 4. Otbert holds an hide in Michelham Antecessor ejus tenuit in Vadio which his Ancestor had in Mortgage of Brictrick 5. The Earl of Moreton Ipse Comes tenuit Estreham T. R. E. a very powerful Prince as I may call him held Estreham in Tenrige Hundred in the time of King Edward He enjoyed several other great Possessions of the Gift of King William I doubt not indeed but he was a Norman born yet he was here before the Entrance of the Norman Duke and might not improbably be in Favour with King Edward the Confessor Camdens Remains p. 136. who was all Frenchified He to be sure had some Lands within the Kingdom of England p. 176. which he enjoy'd not from William's Division 6. Seman holds one Hide in Mideham Tenuit de Rege Ed. nunc tenet de W. Rege 7. Godwin holds one Rood 8 William the Hunter holds Littleton 9. Oswald holds Pechingford 10. Seman holds one Rood in Copedome Hundred 11. Oswald holds Feceham 12. Teodorick the Goldsmith holds Clevintune 13. Chetel the Hunter holds Lodesorde Pater ejus tenuit de Rege E. Hamshire Terra Tainorum Regis 1. Alwi the Son of Saul holds Tederley Pater ejus tenâ—it in Alodium de Rege E. Nota In Cambridgeshire of 37 Owners of Houses in the seventh Ward but 3 were Franciginae 2. Vluric holds Locherlei 6. Four English men Brothers I take it hold Wallope 7. Edmund holds Land of the King Pater eorum tenuit in Alodium 8. Agemund holds Weldeve Ipsemet tenuit in Alodium de Rege E. 9. Another Agemund holds Hotlop 10. Alwi holds Locherslei 11. Agemund holds Sotesdine 12. Sawin holds half an hide in Rocheborne 13. Vlviet the Hunter holds Riple 14. Agemund holds half an hide in Totintone 15. Alric holds half an hide 16. Godric's Sons hold Haugre 17. Alwin holds two hides 18. Ravelin holds Clere. 19. Lewin holds one Rood in Clere. 20. Vluric holds a Mannor 21. Alwin holds Merceode 22. Cola the Hunter holds half an hide 23. Saulfs Wife holds Hoburne 24. Vulgar holds one Rood in Melleford 25. Godric Malf's Sons hold one hide in Esselei 26. Aluric holds one hide in Einforde 27. Aluric holds a Rood and an half in Vtefel Leving and Chetel held it Aluric purchas'd it in the time of King William 28. Aluric holds one hide in Broceste 29. Godric Malf's Sons hold Mintestede 30. Oirant holds Celvecrote 31. Alsi holds Abagine The two next held in Alodium of the Confessor 32. Swartin 33. Edwin 34. Ralph Mortimer holds several Possessions some of which he had jure haereditario from before the reputed Conquest Ipse Radulphus tenet Ordie This Mannor T. R. E. extra Ecclesiam emptum fuit eo pacto conventione ut post tertium haeredem cum omni peeunia Manerium Ecclesia Sancti Petri de Episcopatu recuperet nunc qui tenet Radulphus est tertius haeres Barkshire Berroche scire 1. Walter holds one hide in Cheneteberie which King Edward gave his Ancestors De firma suaÌ„ solut ab omni consuetud propter Forestam custodiend excepta forisfactura Regis c. 2. Edward holds one hide in Coserige he held in Alodium of King Edward 3. Alward the Goldsmith holds Sotesbroc Pater ejus tenuit de Regina Edw. 4. Eldeva a Free-woman holds in Henret one hide of the King in Frankalmoigne which she held T. R. E. and could go whether she would 5. Alwin holds Ceuresbert which he held T. R. E. Wiltshire Wiltscire 1. Brictric holds as his Father did T. R. E. Wochesie Straburg Stratretone and Odestock 3. Brictric and Alwin hold Colesfeld Ipse tenuit T. R. E. 4. Aluric holds Wadone 5. Aldred holds Bimerton Ipse tenuit T. R. E. 6. Cudulf holds Wintreburne 7. Cheping holds Haseberie 8. Cola holds Gramestede Pater ejus tenuit T. R. E. 9. Gode holds one Hide in Stotecome Ipsa tenuit T. R. E. 10. Edwin holds Chigelei 11. Edric the blind holds Hertham 12. Edward holds Widetone Pater ejus tenuit T. R. E. 13. Edmund the Son of Aculfe holds one Hide in Bredford 14. Harding holds Winestone 15. Turchil holds in Contone 16. Vluric holds three Roods of Land in Wintrested and one Rood in Tuderlege 17. Vlnod holds 1 2 Hide in Bramessage 18. Wendsey Vit ejus tenuit T. R. E. the Wife of Titecome holds Land 19. Lisman holds three Hides in Melchesham 20. Wado holds one Hide in Bereford 22. Otho and Swain hold the Lands which their Fathers held Tenentes Terrarum quas tenuerant eorum patres T. R. E. T. R. E. 23. Savic holds Lachertestoche Gest frater ejus tenuit T. R. E. 26. Ceviet Aifild and Eldid held divers Lands which their Husbands held T. R. E. Dorsetshire Dorsete Terra Tainorum Regis 1. Gudmund holds Midletone 2. Bollo the Priest holds Mapledore Ipse tenuit cum aliis 7 Tainis T. R. E. 3. Brictwin holds Waia 4. Vluric holds Mordone Pater ejus tenuit T. R. E. 5. Alward holds Tornecome 6. Ulviet holds Winburne 7. Godwin the Head-borough holds one Hide in Winteburne 8. Swain holds Winteburne 9. Vluric the Hunter holds one Hide 10. Brictwin above named holds Ciltecome 11. Brictwin holds Wadone 12. Saward holds eleven Rood in Caundele 22. Ten Thayns hold Chimedecome Ipsi tenuerunt T. R. E. pro 1. Manerio Omnes qui has terras tenuerunt T. R. E. Potuerunt ire ad quem Dominum volebant Somersetshire Summersete 1. Brictric and Vlward hold Bochel and 2. Siward holds Ettebere 3. Vlf holds Havechewelle 4. Alward and his
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
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
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
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
present our Dispute is limited Cum Comites Barones Milites et alii de regno nostro in subsidium guerrae nostrae sicut alias nobis et progenitoribus nostris regibus Angliae concesserunt c. If all these will not do however I have one Record which is a Demonstration that no more than such as the Tenants in Capite were answerable for according to the Vetus Feoffamentum or original Infeodation from the King were in respect of any charge to be laid by Tenants in Chief only accounted their Knights Though I have a great Example before me for long-winded Quotations yet I cannot cite more of the Record Vid. Jani c. p. 239. than is to the purpose sometimes indeed I may omit some part which would coroborate my Assertion Cum peteremus à Praelatis Angliae Rot. Pat. 15. H. 3. M. 3. De praelatorum Angliae quod nobis auxilium facerent pro magnâ necessitate nostra de quâ eis constabat viz. Episc. Abbatibus Abbissis Prioribus Priorissis qui de nobis tenent in Capite ipsi nobis liberaliter concesserunt auxilium tale viz. de singulis feodis militum suorum 40 s. de tot feodis de quot ipsi tenentur nobis respondere quando nobis faciunt servitium militare nos concessimus eisdem Praelatis quod ad praedictum auxilium nobis faciendum habeant de singulis feodis militum qui de eis tenent 40. s. Before I enforce this Record Jani c p. 239. I must wipe off one Reflection as if I made a Parliament of Women amongst others by my note of Women granting whereas if they granted by their Dapifer or Magistralis serviens 't was the same as by such they might be Judges in the Counties and Hundred Courts according to a Charter of King Stephen an ancient Transcript of which I have seen whereby such Liberty was granted to the Church of Saint Milburg de Wunelort and to the Monks there and with the same Propriety might have been to an Abbatess or Prioress if the Society deo serviens Carta Regis Stephani were female Rex Angliae Archiepisc. Episc. Abbatibus Comitibus Carta Regis Stephani deliberat anno 3 o. Justiciariis Baronibus Vice-comitibus Ministris omnibus fidelibus suis Francis Anglis totius Angliae Salutem Sciatis quum pro dei amore animabus patrum parentum meorum special Regis Henr. Domini Avunculi mei pro salute meâ uxoris fratrum filiorum meorum pro statu incolumitate regni mei dedi concessi in perpetuam elemosinam deo Ecclesie Sancte Milburge de Wunleloch Monachis de caritate meâ deo servientibus hanc subscriptam libertatem scilicet quod Ecclesia ipsa pro se pro omnibus hominibus suis Sancte Milburge mittet Dapiferum suum vel Magistralem servientem suum ad nominatos Comitat. Hundred mea qui ibi audiat precepta mea cum aliis juditia mea indicet ita quod nemo hominum suorum super hoc illuc eat neque ibi respondeat nisi specialiter de aliquo placito sic appellat quod ad Coronam meam pertineat de nullis verò aliis Placitis illuc eat vel ibi respondeat nisi prior Ecclesie prius in Curiâ suâ se inde de recto defecerit Et hanc praedictam libertatem omnium rerum quietantiam eis concedo exceptis placitis superius annotatis et ut haec libertatis meae donatio Ecclesie illi in perpetuum integrum conservetur presentis sigilli mei impressione ipsam confirmo et subscriptorum attestatione corroboro et praeter haec omnia supradicta concedo eis quod habeant unam feriam apud Wuneloch ad Festum Sancti Johannis Baptiste per tres dies durand a vigiliâ Sancti Johannis singulis annis et volo et firmiter praecipio quod omnes homines ad feriam illam venientes ineundum et redeundum et ibi manendum ipsi et omnia sua meam firmam pacem habeant ne super hoc in aliquo injustè disturbentur super 10. l. forisfact Testibus R. Episcopo Heref. et R. Episcopo Cestr. et S. Episcopo Wircestr et R. Com. Legr et S. Com. Herh et W. de Alb. pinc et Mil. Bloe et R. de Ferr. et Philippo de Belmeis apud Brugg in reditu obsidionis Salop. Anno Dominice incarnationis MCXXXIX regni â—erò mei tertio Having thus cleared my self I may proceed upon the Record of the 15th of Hen. 3. the Grant there de singulis feodis militum suorum is as large as that which he triumphs so much in and yet the Milites sui were only tot de quot ipsi tenentur nobis respondere quando nobis faciunt servitium militare Nay the Distress granted by the King is de singulis feodis Militum qui de eis tenent and yet the Milites qui de eis tenent could not possibly be more than such as were liable to the King's Duty Nota. for otherwise the Lords were to have more for their own use than the King for his because it was 40. s. upon every Knights Fee And if the Prior of Coventry was to answer the King only for two Knights Fees being tot de quot c. and yet had 40. s. upon every one of the ten that held under him he would have had more than the King when besides it was to be only ad praedictum auxilium for raising the Aid for the King which was from so many as he was answerable for when he did his Service and that waâ— less than the Subsidy granted per Magnates et Communitatem Admit that thâ— last was not properly novum Feoffamentum yet 't is the Thing not the Word I contend for and such were not chargeable by Tenants in Capite His second Interrogatory Jan. c. p. 234. 235. who gather'd this Tax was prevented in my former Essay and fully answered now And by the next it may be he will blot out his third Who were to be distrain'd by Vertue of this Writ And perhaps he will not think it evident beyond Contradiction Against Jan. c. p. 78. from the Writ to the Sheriff of Sussex That the Tenants in Capite were Omnes alii de Regno any more than that Fideles after Milites were still Milites because he fancies that Matthew Paris contradicts the Record and is of better Authority How idle is his Conjecture upon the Plea of the Prior of Coventry That he was chargeable for no more Knights Fees than were his Possession Whereas he was to answer De tot de quâ—t tenebatur Regi respondere quando c. when he did his Service which was no more than two Knights Fees though he had ten under him But the two though held by others were chargeable by him without the Consent of his Tenants