accepit c. Now pray tell me what Common Council was this Of the Bishops and chief Men of the Kingdom that Anselm referred himself to Was it not ex more by Custom You cannot find in Eadmer any Summons to it neither Rex asâ—ivit nor praecepâ—o Regis convenerunt nor Rex sanctione suâ adunavit In short not to multiply Examples look where you will in Eadmerus or any other of the ancient Historians you have cited and you will still find that the Persons who met ex more and without any Summons were the same who Assembled by the Kings Summons at other times that is the Principes and Episcoâ—i Regni or Terrae or called more generally Priâ—ates utriusque ordinis or the Barones or Majores Regni who did at these great â—easts pro more go to Court and hold a solemn Curia or great Council there And that these made up the Vniversity or whole Body of the Kingdom pray see what Matt. Paris says In die Pentecostes Dominus Rex Anglorum Loâ—dini Festum tenens Magnum serenissimum â—unc compositâ per Regni Vniversitatem Eleganti Epistolâ c. This was about the Pope's Exactions as hath been before delivered And Hen. III. in his Letter to the Pope calls the same Persons Magnates Angliae which in his Letter to the Cardinals about the same matter he calls Magnates Nostri as you may see in the former Citations of them F. But pray give me leave to ask you this question might not our first Norman Kings often Summon the Common Council of the Kingdom at one of the said usual Feasts since it was so much for the conveniency of the Bishops great Lords and Tenants in Capite who I grant were then all Members of the Great Council to meet all the rest of the Kingdom or Representatives of the Commons at the same time Though the Writers you have quoted may not mention their being Summoned at all And as for the Writs of Summons those of much later Parliaments being lost how can it be expected we should now prove their being Summoned so many Year before M. I confess it might be so that upon extraordinary business and when the occasion was great and the King desired a great and full appearance they might also receive an express Summons at those times But then I must desire you to shew us any mention of a Summons to any of these Common Councils which when called at other times are most constantly mentioned in this Author And I desire to know of you what you will say to those words pro more convenit which is spoken of the most general Councils when the Community of the Kingdom met at the King's Court You cannot deny but that the Tenants in Capite were the Kings Barones Milites Magnates c. Upon this we will joyn issue And I affirm without bringing Proofs which are infinite in this Case that all the Bishops Earls and Barons of England did hold their Lands Earldoms and Baronies of the Crown or which is all one of the King as of his Person and that was in Capite William the Conqueror as I said before divided most of the Lands in England amongst his great followers to hold of him he made Earls and Barons such as he pleased They and their Descendants held upon the same Terms with the first grantors which was to find so many Horse and Arms and do such and such Services both Titles and Lands were Forfeitable for Treason or Felony to the King did Homage for them and every Bishop Earl and Baron of England was in those circumstances and held of the King after this manner Other Lands were given to other Persons for meaner Services as to his Woodwards Foresters Hunts-men Faulconers Cooks Chamberlains Gouldsinlibs Bayliffs of Mannours in his own hands and many other Officers which in Doomsday-Book are called Terrae Thanorum Regis and sometimes servientium Regis And I doubt not whatever the Notion of Petyt Sergeanty now is but that originally this holding of Lands was the true Tenure not but presenting the Lord with a Bow an Arrow a pair of Spurs every Year c. might also be called Petyt Serjeanty though not so properly as the other F. Not to multiply words to no purpose I think your Reply is far from being Satisfactory for in the first place it is very unreasonable to demand that we should now shew the express Summons to these common Councils which were not held de more since you know that all antient Records of that kind are destroyed and lost for if we could produce them at this day the difference between us and those of your Opinion would quickly be at an end as appears by those great Councils which are said expresly by the Historians I have cited to have been summoned and yet no such Writs of Summons are to be found nor is it any good Argument that because our ancient Historians mention no distinct Summons to the great Councils when met at the usual times of the meeting of the Tenants in Capite that therefore there were none such since we find they often pass by much more material Matters than this And though I grant that the Tenants in Capite were then part of the great Council of the Barones Milites Magnates Regni yet does it not follow for all this that none but the Kings Barons and Tenants in Capite were Members of this great Council since there might be in those times other Barons or great Freeholders who though they held their Lands of the Tenants in Capite yet might be there as Knights of Shires or else appear in Person at those Assemblies as well as the other and besides there were others who though they did not hold of the King in Capite but of some great Honor or Castle or else of some Abbot or Prior yet were Men of very great Estates and very numerous all which must otherwise have had their Estates tax'd and Laws made for them without nay against the consent of themselves or any to represent them Nor is your Assertion at all true That William the Conqueror divided most of the Lands in England to be held of him in Capite For besides those Servants and Officers you last mentioned above two third parts of the Lands of the Abbies and Priories in England were not held as also much other Lands in Kent and other Countries per Baroniam or Knights Service but in libera Elecmosina only or Socage as I have already prov'd and consequently neither they nor their Tenants could according to your Hypothesis have any Representatives in Parliament And farther you your self grant that those Lands you mention which were given out by your Conqueror to his Woodwards Foresters c. did not capacitate them to appear in Parliament since their Tenure was only by Petyt Serjeanty and not by Knights Service Nor could they become the King's Tenants in ancient Demesne because such Tenants
the true meaning of these Villani by another Record dated but two years after this of yours viz. 21 Hen. 3. Rex Vic. Kant Salut Sciâ—s cum octavis Sancti Hillarii c. ad mandatum nostrum convenirent apud Westm ' Archiepiscopi Episcopi Abbates Priores Comites Barones totius Regni nostri ut tractatum haberent nobiscum de statu nostro Regni nostri iidem Archiepiscopi Episcopi Abbates Priores Clerici Terras habentes quae ad Ecclesias non pertinent Comites Barones Milites Liberi Homines pro se suis Villanis nobis concesserunt in Auxilium Tricessimam partem honorum From this Record we may observe 1. That the King's Writ was only issued to the Arch-bishops Bishops c. Earls Barons of the whole Kingdom 2. That in the recital of this Tax the Sheriff is told first that the Arch-bishops Bishops c. and the Clergy which had Land not belonging to their Churches a certain sign that they granted by themselves and out of nothing else but that and then that the Earls Barons Knights and Free men for themselves and their Villains granted a thirtieth part of their moveables And from this Record it is also manifest these Liberi Homines had Villanos if not Bondmen Villagars or Rusticks Colonos or Husbandmen at least of whose Estates by publick Assent and for the publick benefit they might in part dispose of which Liberi Homines according to the Tenor of all our Records and Histories were Tenants in Capite and that the Villani mentioned in the other Record of 16. Hen. 3. to have given a fortieth part of their Moveables did grant by their Lords that is their Lords Paramount that were Tenants in Capite did grant for them though they held it not immediately of them but of other Tenants in Military Service which immediately held of the Tenants in Capite who did charge them by publick Taxes hath been shewn from divers Records So that it was frequent in those times to say such and such concesserunt granted such a Taxe that is by those who had Power and Authority to do it for them and without their consent too when those for whom they granted were not capable of being Members of Parliament themselves I could give you more Examples of the like Nature but I will not tire you F. I pray Sir give me leave to answer this long speech and to begin with your Interpretation of this word Fideles First then we are so far agreed that the word Fideles had two or three different Significations First it signified all the Subjects in general in the next place all Vassals or Feudatary Tenants whatever whether of the King or any other Lord as appears by the Passage you have cited out of William of Malmsbury as also divers antient Charters particularly those of King William I. and Maud the Emperess and King Stephen which are divers of them directed Fidelibus suis Francis Anglâ— which cannot mean Tenants in Capite since the Doctor and your self will scarce allow any English Men to have then held Lands in Capite of the Crown Lastly I grant this word Fideles may sometimes signifie the Tenants in Capite of the King all which being so I think you cannot deny that it is not the bare word but the sense it bears in the Places where it is used that must direct us to its true Signification and that the fideles there mentioned to have granted Caruage in the 4 th of Hen. 3. could not be the King's Tenants in Capite only I have given you a sufficient reason which you do not think fit to answer viz. That Caruage was a general Tax imposed upon all the Lands of the Kingdom as well what was held by Knights Service as what was not and how your Tenants in Capite could Tax those Lands which were never held by Knights Service I desire you would resolve me And therefore by the Fideles here mentioned in this and many other Records are not to be understood the Tenants in Capite only but all other Subjects who did Fealty who though they could not all appear in Person in our great Councils or Parliaments yet were there by their Representatives the great Freeholders Lords of Mannors or else by the Knights Citizens and Burgesses But I must now make some Remarks upon your Interpretation of â—he Writs of the 16 th and 21 th of Hen. 3. wherein you have certainly very much mistaken the sense of all the main Words For in the first place as for the Clerici terras habentes non ad Ecclesias pertinentes which you interpret to have been Clerks having Mannors and Military Fees not belonging to their â—enefices but held of the King in Capite seems to be altogether forced For whoever heard of Clerks that is inferior Clergy Men Parsons or Vicars of Churches who held Benefices of the King in Capite and not in Franc Almoigne or if they had any such that therefore those Lands so held should be called Lands not belonging to their Churches for at this rate the Lands of Bishops all Abbots Priors c. which held of the King in Capite would have been in your sense Lands not belonging to the Church but who but you and your Doctor ever gave such an unreasonable Comment on those words Nor will that Passage you cite out of Mat. Paris at all favour your Interpretation for either these Bishops and Prelates there mentioned gave this sortieth part of their Moveables in Parliament with the rest of the Kingdom or else as Clergy men in Convocation If the former then these Clerici could have no Votes there in Person for I believe it would puzzle you to prove that at this time any Ecclesiastical Person below the degree of an Abbot or Prior had any place in Parliament by reason of his Tenure by Knights Service in Capite for those Lands he held in Right of his Church but if you 'll have this Tax to be granted by the whole Clergy in Convocation then such Clerks as you mention could not be there in Person First because they are said to be such as had Lands quâ—e ad Ecclesias suas non pertinent and so could not have any place there as Clergy-men nor could they be included under the Praelati since that word takes in none beneath the degree of a Dean And therefore if these Clerks gave any thing in Parliament they must do it by their lawful Representatives the Knights of Shires or if in Convocation by their Clerks of the lower House then called Procuratores Cleri So that take it which way you will those Clerks could not be present themselves at these Parliaments when those Taxes of the 30th and 40th part of their Moveables were given to the King and therefore either as Lay-men or Clergy-men must be Taxed by their Representatives but in deed the words Proceree Regni which immediately come after Episcopi Pralati in
prolix already which the abuse your Dr. hath put upon these words would not permit me to avoid But now we have cleared most of the Terms in dispute between us I hope we may proceed with greater Certainty M. Though your Discourse hath been long yet since it is so essentially necessâ—ry to the right understanding the matter in hand I am well satisfied and I shall more fully consider the account you give of these words another time but a present give me leave to tell you That suppose I should admit that those words on which you have now given Interpretation of divers Authors may sometimes be taken in the sense you have now put upon them and that consequently the Commons might be represented under some of those general Names Yet am I not satisfied how the Aldermen and Magistrates of Cities and Boroughs could be included under this word VVites since in the Auctuary to the 35 Law of Edw. the Confessor 't is said Erant aliae potestates dignitates per Provincias Patrias universas per singulos Comitatus totius Regni constitutae qui Heretoches apud Anglos vocabantur Scilicet Barones Nobiles insignes Sapientes c. And Gregory of Tours Rodovicus and many of the foreign ancient Historians mention Sapientes only as Lawyers Counsellors Judges and among the modern foreign Lawyers Hottomon and Calvin say expresly they were such But perhaps not of the Inferior Ranâ— no more than the Saxons Sapientes were of which their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 only consisted And we have at this day the Iudges and King's Council and other great Lawyers that sit in the Lord's House and are assistant to the Parliament when there is occasion Nor have you yet brought any proof that the Cities or Towns then sent their Representatives to the great Councils in the Saxon times by this or any other Title But as for the Knights of Shires though I grant the Treatise called Modus tenendi Parliamentum mentions such Persons to have been present in Parliament in the time of K. Ethelred yet by that word Parliament so often used by the Author of that Treatise and divers other Circumstances it may be easily perceived that the Author lived but about the time of Edw. 3. or Rich. 2. as Mr. Selden in his Titles of Honour and Mr. Pryn in his Animadversions to Sir E. Cook 's 4th Institutes have very fully proved so that admitting that your Thanes or Lords of Towns did then appear in those Councils for themselves and their Tenants yet could they not be properly said to be their Representatives because as I told you before they were never chosen by them whereas now the ordinary Freeholders of forty Shillings a Year and the Freemen and Inhabitants in Cities and Towns have the grâ—â—test share in the Election of Knights Citizens and Burgesses And as for those Thanes you mention they or those under whom they claimed owed their Estates wholly to the Grants of former Kings and held their Possessions from them by some Tenure or other And by virtue of this Tenure it was that all the Lands of England were liable even those that belonged to the Church to those three Services anciently called Trinoda Necessitas viz. Expediâ—â—â— Castelli Pontis extructio that is Military Service against a Foreign Enemy and the Repair of Castles and Bridges and subject to the common Services of the Kingdom And that the Earls and Chief Thanes did hold their Lands by Knights or Military Service appears by the reliefs of the Earls and Thanes exâ—â—rest in the Laws of King Cnut in Sir H. Spelman's Councils So that if all the persons who held those Lands owed them wholly to the King's bounty it seems plain to me that they must likewise owe their places in the great Council to the same Original F. I think what you have now farther urged will be of no great moment against my Opinion for as to the Authority you bring from the Addition to that Law of Edw. the Confessor it is plain by the word Barones that it was added long since that time that word not being commonly in use till some time after the Norman Conquest But letting that pass it is plain by the rest of the Law if you would have been pleased to have read it out that these Heretoches here called Barons were no other than ordinary Gentlemen or Thanes which then answered the word Barones And these as this Law it self expresly tells us were chosen by all the Freemen in the Folemote or County-Court And therefore tho I grant they might be men of Estates yet there was no necessity of their being Lords or Noble by Birth nor is it likely that the people would have chosen their Earls or any other of the like Order to command them when they had sufficient choice of Thanes or Gentlemen in their own Countrey to command the Military Forces of it And tho it is true these Gentlemen are called Nobles and remarkable Wise Men yet this according to your own shewing doth not exclude others and those of a far different Profession viz. Counsellors Lawyers and Iudges all which you suppose had then Places in the Great Council as they have now in the Lordâ— House And if this Word might comprehend both Sword-men and Lawyers I cannot see why it may not also take in the better and richer sort of Citizens and Magistrates who in that Age as was notorious were elected by their respective Corporations And I have already proved that these were called Sapientes in other Countries and I see no reason why they â—ny not have been called so here too But that the King's Judges and Counsellors could have no Votes in the Saxon Great Councils I have already given a sufficient Reason to the contrary But I shall now farther shew you That the Cities and Boroughs in the Saxon times being so much more numerous and considerable than they are now must needs have had according to the custom of those Times a considerable share in those Great Councils since in them consisted a great part of the Strength and Riches of the Kingdom and were many more than they are at this day for Bede 〈◊〉 in the beginning of his History That there were in England long before his time 28 Famous Cities besides innumerable Castles and walled Towns of note many of which tho now extremely decayed or quite mined were then very considerable the greatest and richest part of the Nation inhabiting in those times for the most part in Cities or great Towns for their greater benefit or security and the greater part of the Lands of England in the Saxon times and long after â—y incultivated and over run with Forâ—sts and Bogâ— so that the Inhabitants of those Cities and Boroughs being them so considerable for Estates in Lands as well as other Richâ—â— could not â—e excluded from having Places both in the Brittish or Saxon Great Councils what man of Sense can
Lords or Peers of Parliament and that the rest being the lesser or lower Tenants in capite sometimes stiled Barones minores were for some time before this summoned by general Writs directed to the Sheriffs or Bayliffs as appears by King Iohn's Magna Charta Now whether these men were ever really Peers or not I have reason to doubt since I do not find but it was they alone who for some years after the Conquest served upon Juries in County Courts and dispatched all the publick business of the Country which was then as at this day a drudgery beneath the Peers to perform and therefore I shall not insist upon it But thus much I think is certain That they were a sort of persons much above any other Lay-men of the Kingdom since they held their Estates immediately from the King and were so considerable as that by the Constitutions of Clarendon they were not to be Excommunicated without the King's leave and so were then in some sort of the same Order ratione Tenurae with the great Barons or Peers being commonly stiled Barones and made up but one Estate or Order of Lay-men in Parliament And from thence I suppose proceeds that common Error of Sir Ed. Coke that the Lords and Commons did anciently sit together and made but one House Now if you have any thing to object against this Notion pray let me hear it F. I think you and I are come pretty near an issue in this question for you confess that these lesser Tenents in capite and whom you comprise under the word Barones were not truly and properly Barons and so far you are in the Right but yet you will have them to be somewhat more than mere Commoners as if there had been some Degree or Order of men in England in those times who were neither Lords nor Commons but an Amphibious Race between both But to prove that they were indeed no more than Commoners and not Lords nor Peeâ—s at all nor equal with them we need go no farther than their way of Trial in cases of Treason or Felony which was by mere Commoners who were not Tenants in capite as well as those that were so that a person who was no Tenant in Capite and might serve upon a Jury of Life and Death upon them and as well as the Dr. in his Answer to Mr. P. as you asserted that they only served in the Country upon all Iuries and that before the time of King Iohn So after all this noise of none but Lords and Tenants in capite appearing for the whole Commons of England we find by your own showing that three parts in four of the Lay Members of that Council were as meer Commoners as our Knights of Shires and Barons of the Five Ports at this day nor can I see any reason why these latter might not be as well comprehended under the Word Barones as the former who were meer Commoners likewise if we consider that it was neither Nobility nor Birth nor the King's Writs of Summons but only the meer Tenure of their Lands that gave them a particular right to a Place in that Assembly in those Ages or if a meer Citizen could get Money enough to purchase such an Estate in capite he was as good a Member of Parllament as the best of them all So that the Question then amounts to no more than this Whether the Commons of England were then represented by Tenants in Capite or by Knights of Shires and others as they are now But since you will have none Commoners but Tenants in capite to have had places therein pray tell me whether you allow that Priviledge to all who held in capite or not M. Yes I allow it to all who held in capite by Knights Service and who also enjoyed a whole Knight's Fee or so much as was sufficient to render them able to sustain the Dignity of that Place not but that the King had also a prerogative of summoning or omitting whom of them he pleased to his Great Council or Parliament till the Less Tenants in capite thinking it a wrong to them it was provided by King Iohn's Charter that all of them should be summoned by one General Writ of Summons directed to the Sheriff But I exclude from this Concil all Tenants by Petit Serjeanty who tho 't is true held of the King in capite yet was it not by Knights Service So likewise I exclude all Cities and Towns tho the Citizens or Burgesses of divers of them held their Lands and Tenements by that Tenure since being neither noble by Blood nor having Estates sufficient to maintain the Port of a Gentleman or Knight they had no Right to appear there in Person among the other Tenants who were owners of one or more Knights Fees Yet do I not affirm that the Commons were not after some sort represented in Parliament by their Superior Lords tho not as Commoners since the Bishops Abbots and other Barons did then make Laws and give Taxes not only for themselves but their Feudatory Tenents also tho of never so great Estates and Tenure in capite was then looked upon as the only true Freehold of the Kingdom and the Tenents by it as the only true Freeholders F. I shall shew you by and by the falsity of this Notion but in the mean time pray tell me when a Great Council or Parliament was called who represented those Persons who you say did not appear there and made General Laws and granted General Taxes for themselves and the whole Kingdom when there was occasion For I see you shut out the greater part even of these your true Freeholders from this Assembly M. As for the Tenents in Petit Serjeanty I at present conceive tho I am not sure of it that many of them might hold Lands and perhaps divers Knights Fees by Grand Serjeanty or Knights Service also since those Estates which were given by the Conqueror to his Servants to be held of him by such and such Petit Services might in process of time fall by Purchase or Descent into the hands of such Great Tenents in capite as had sufficient Estates to maintain that Dignity and as for the rest they might for ought as I know before the Statute de Tallagio non concedendo have been taxed by the Kings Writs according to the proportion of the Knights Fees or parts of Knights Fees which they then held and according to the Rate of the Sums imposed in Parliament either by way of Aids upon every Knights Fee or else by way of Subsidy by so much a yard or Plow Land throughout all England which has been the only way of taxing ever since that of Knights Fees hath been disused F. Then I find after all you have said that scarce half your Tenents in capite had any Votes in Prrliament either by themselves or their Representatives and so having Laws made for them and being taxed at the King's Will were as
that if the Sense of these Words have been sufficiently explained I think no reasonable man can have any cause to doubt whether these Abstract Words Nobilitas Universitas and Communitas should be taken for all Sorts and Degrees of men when thus represented in the Great Council or whether they shall be confined to the Greater or Lesser Nobility only viz. the Great Lords Bishops and Tenants in caâ—ite as you would make me believe which requires stronger Proofs than what you have yet brought Besides which Sense of this Word Communitas or le Commune it is also more commonly used at this day and often then too in another more restrained and yet legal sense and that is when it is used for the Commonalty or Commons of England distinct from the Peers and this may very easily be distinguished by observing that when it is taken in this Sense it is always set after the particular enumeration of the other Orders of the Lords or Peers viz. the Arch-Bishops Bishops Abbots Priors Earls and Barons or when it is put contradistinct to the Word Magnates I shall give you some Authorities and Examples from Historians and Records of both these and that in the Times preceding those that you allow the Commons to have been summoned in Parliament Of this sort is that which Matt. VVestm mentions as a Parliament held 37th Hen. III. and which is thus recited in the Patent Roll of this year where after the Excommunication denounced against all Infringers of Magna Charta there is this solemn Clause aâ—ded That if to the Writings concerning the said Sentence any other thing or in any otherwise should be added thereunto besides the Forms of the said Sentence then to be denounced and approved of that then Dominus Rex praedicti Magnates Communitas Populi Pretestantur publice before all the Bishops that they would never consent thereunto and conclude thus In cujus Rei Testimonium in posterum Veritatis testimonium as well the King as the Earl of Norff. Heref. Essex and VVarwick as Peter de Sabaâ—dia ad Inslantiam aliorum Magnatum Populi Praescripti sigilla sua apposuerunt where you may see that it was usual before the 49th Hen. III. for those that were Peers to sign for the Communitas Populi or Commons M I pray give me leave to answer your Authorities as you bring them lest I not onely forget some of them but also tire both you and my self with too long a Discourse I hope I am very well able to prove by the learned Dr.'s assistance that the Communitas Populi here mentioned doâ—h signifie not the Commonalty or Commons but the Community of the Laity there present consisting of the Greater Barons or else the Less or Tenants in capite And for proof of this pray take notice that Matt. Paris called this Council Tota Angliae Nobilitas And in this Parliament the King demanding a great Sum of Money of them after much contest and upon promise to reform all Abuses according to the Tenour of the Great Charters thereupon the same Author tells us The Church granted the Tenth of the Revenue for three years and the Knights or Nobility granted for that year Scutage to wit Three Marks of every Scuâ—uâ— or Knights 〈◊〉 And then the Arch-Bishops and Bishops in their Pontificalibus with Light-Candles in their Hands in the presence and with the assent of the King the Earl of Cornwal his Brother and several Earls there named aliorum Optimatum Regni Angliae and other chief men of the Kingdom excommunicated and cursed all those that from thence forward should deprive the Church of her Right and all those that should change alter or diminish the Liberties of the Church and Anciâ—â—t Customs of the Kingdom especially those granted in the Great Charter of the Common Liberties of England and Charter of the Forest granted by the King Arâ—hiâ—piscopis Episcopis cateris Angliae Praelatis Comitibus Baronibus Militibus â—â—berè Tenentibus c. i. e. To the Arch-Bishops Bishops and other Prelates of â—â—gland and to the Earls Barons Knights and Free-Tenants or Tenants in Military 〈◊〉 Knights Service For they only were such aâ— paid Scutage which was at this â—ime a kind of composition with the King for the confirming Magna Charta and was never charged but upon Knights Fees and these were such that held perhaps one narrow or scanty Knights Fee only or some part of a Knight's Fee as an half 3d 4th 6th 8th part c. who all paid a proportionable share of Scuâ—age to the Great Lords or Tenants in capite for the Land they held of them in Military Service which was paid first to the Great Lords and by them paid to the King And from thence I collect that besides the Barones Majores that came to this Great Council or Parliament there were also the Tenants in Capite according to the Directions and Law for Summons in King Iohn's Charter who were comprehended under the Words tota Nobilitas Milites and that other Tenants but held of the Tenants in capite by Knights Service were bound by their Acts 〈◊〉 they all knew how many Knights Fees they held of the King in capite and if â—â—ey had given any away to others they held of them as they did of the Crown â—â—d answered a proportionable rate towards this Tax for the Fees Quantities 〈◊〉 Parts of Fees they held of them about which there could be no mistake 〈◊〉 the Scutage was ascertain'd So that in so Great an Assembly where all the Nobility of England were called together by the King 's Writ and upon so great 〈◊〉 occasion and solemnity as confirming the Great Charter of Liberties after such an extraordinary a manner it cannot be doubted but besides the Barons all the 〈◊〉 in capite both Great and Small which were then very numerous were â—resent or at least most of them from whence it is not difficult to tell you to the Communitas were after the Prelates Barons and Magnaâ—â—â— they were no other than the Small Tenants in capite who were all summoned by one General Writ nor chosen and sent by the people but summoned as the Great Barons in general by King Iohn ' Magna Charta as I shall shew you hereafter F. I hope I shall be well enough able to prove that what you have now alledged is pure imagination or in the Dr. Phrase an airy Ambuscade and quite contrary to the Sense of Matt. Paris as also of the Lawyers and Historians of those Times For in the first place nothing is plainer than that this Author by the Words Communitas Populi must understand an Order of Men distinct from the Magnates or else if the Word Magnates might have comprehended them all it would have been to no purpose to have mentioned any more But to answer those Authorities you bring from Mat. Paris As for the Word Nobilitas since you still insist upon it I
have already proved that the whole Parliament as well the Lords Spiritual and Temporal as Commons were both before and after this time comprehended under these words Nobilitas Angliae and if you yet doubt of it I can give you a plain Authority out of VValsingham for it is in his Life of Edw. II. Anno 1327. where relating the manner of that King's Deposition he tells us That when the Queen and Prince came to London there then met Tota Regni Nobilitas to depose the King and chuse his Son in his stead and then there was sent to the King being Prisoner in Kenelworth Castle on behalf of the whole Kingdom two Bishops two Earls two Abbots and of every County three Knights and also from London and other Cities and Great Towns especially the Cinque Ports a certain number of persons who informed him of the Election of his Son and that he should renounce the Crown and Royal Dignity c. This Proof is so plain it needs no Comment As for the rest of your Argument the strength of it chiefly consists in this that the Tax there mentioned is said to be granted à Militibus or Tenants in capite as you would have it of three Marks upon every Knight's Fee But in the first place I desire you to take notice that this Scutage is not Scutage Service but a general Land Tax or Manner of taxing according to Knights Fees and which was continued long after Hen. III. Reign as it appears by this Passage in Sir Henry Spelman's Glossary Tit. Scutagium Edwardus primus habuit 40 Soli de quolibet 〈◊〉 Anno Regni 13 Dom. 1285. pro expeditione contra VVallos And it was also granted by the Lords and Commons after the 18th of Edw. I. when you and the Dr. supposes the Commons to have then came to Parliament and if so I desire to know why a Militibus here mentioned by this Author must only signifie Tenants in capite by Knights Service and not the Knights of Shires since it is not here said a Militibus qui de Rege tenuerunt in capite And therefore it is a forced Interpretation of the Dr.'s and without any Authority to limit these words Militibus libere Tenentibus omnibus de Regno nostro which you omit with an c. as also the omnibus Hominibus Liberis Regni nostri only to the Arch-Bishops Bishops and other Prelates of England and to the Earls Barons Knights and Free Tenants or Tenants in Military or Knight's Service because they were only such as paid Scutage VVhereas you have already acknowledged that Magna Charta was granted to all the people of England who had all a benefit by it and who paid towards the aid there granted as well as the Tenants in capite But if Knights Fees alone were Taxed and that by the Tenants in capite only I desire to know by what Right all Tenants in Petit Serjeanty and by Burgoge oâ— Sâ—occage Tenure who made a greater Body of men in this Kingdom in those Times could pay this Scutage since they held not by Knights Service but by certain Rents or other Services and so not appearing in Person could have no Representatives in this or any other Parliament of those Times But if you will tell me they might pay according to the value that Knights Fees were then reckoned at viz. for every 20 l. a years Estate I desire to know how this could be called Scutage or how the Tenants in capite or other Lords from whom they held those Lands could give away their Money for them And in the next place I desire also to know how all the Cities and Burroughs in England could be charged with this Tax a great many of them is you your self grant holding of the King in capite or else of Bishops Abbots or other Mesâ—e Lords by Soccage or Bargage Tenure So that this Tax if granted only by the Tenants in capite by Knights Service could reach them and no other persons but if by this Word a Militibus may be understood Knights of Shires then the Tax was general as well upon Soccage Tenants as those by Knights Service But for the other Words you insist upon viz. the Liberi Tenentes which you translate Tenants by Military Service if that had been the meaning of these words then they had been altogether in vain since you have already told me that the â—â—lites were so called non a Militari Cingulo sed a Feodo and if it were no Name of Dignity then certainly the Word Milites would have served to comprehend all your Liberi Tenentes or Tenants in capite without any other addition But that these Words Laberi Tenentes do not here signifie Tenants by Military Service pray see Sir Henry Spelman's Glossary Tit. Liber Homo liber Tenens where he there gives us a more general Signification of thesewords thus Ad Nobilesolim spectabant isti 〈◊〉 à majoribus ortos omnino Liberis and then ends thus vide Ingenuus Legalis 〈◊〉 Francus Tenens Liberè alias Liber Tenent quo etiam sensu occurrit interdum Homo 〈◊〉 which upon every one of these Titles he makes to signifie all one â—â—d the same thing viz. an ordinary Freeholder And therefore it is a very forced Interpretation of yours to limit these Words Communitas Populi only to the Community or Body of the Earls Barons and Tenants in capite Tho I confess you are very kind in one main Point in únderstanding the Communitas Populi to mean the Community of the Lesser Tenants in capite that were no Barons and then do what you can these Words must here signifie Meer Commoners or Commons unless you can shew us a Third Sort of Men who tho neither Lords nor Commons yet had a place in Parliament So that these Gentlemen notwithstanding their Tenure were no more Noble than their Feudatory Tenants or Vavafors themselves my than the Knights of Shires are at this day And then granting as I doubt not but I shall be able to prove that the Cities and Boroughs had then also their Representatives there I pray tell me whether or no there were not Commons in Parliament before 49 Hen. III. or not which is contrary to your Dr.'s Assertion in divers places of his Answerâ— to Mr. P. And that the Word Populus must here signifie the Commons and not the whole Body of the Laity appears plainly by this place you have quoted since it is restrained by your self to mean not the whole Community of the Kingdom but only the Community of Lesser Tenants in capite who were not Lords But that Matt. Paris doth also in another place take the Word Populus for the Commoners and not for the whole Body of the Laity pray again remember what he says in Anno 1225. where relating the manner how Magna Charta came to be confirmed in 9th Hen. III. he tells us Rex Henricus ad Natale tenuit Curiam suam apud VVestm
Praesentibus Clero Populo cum Magnatibus Regionis which pray let us put into English and see if it will not prove what I say viz. the Clergy and People being present with the Great Men of the Kingdom Now if the Word Magnates as you affirm did then comprehend all the Barons and Tenants in capite to what purpose is the Word People put here as a distinct Member of this Parliament But to shew you father that this Word Populus is not always to be understood for the whole Body of the Laicks but Lords and Knights of Shires 〈◊〉 shall shew you out of Walsingham Anno 1297. 24th Edw. I. where he mentions a Parliament held at St. Edmundsbury In quo a Civitatibus Burgis concessa est Regâ— Octava a Populo vero reliquo duodecima pars Bonorum Where by Populus 〈◊〉 not only meant the Peers but Knights of Shires or Grands des 〈◊〉 also M. I am not prepared at present to answer all the Queries and Difficulties that you can make or raise against the Dr.'s Arguments yet I think I am able to give you a very satisfactory answer why all Tenants in Soccage should be bounâ— by the Acts of those of whom they held their Estates For since as I have a ready proved all the Land in England except what belong to Religious Houses was granted out by King William the Conqueror to be held in capite by Knights Service and was again granted out by these Head-Tenants to their Feudatory oâ— Mesne Tenants by the like Services there being very few Lands granted in Free Soccage at the first And tho it is true that in process of time maâ— of those Estates and Lands became Free Tenements or were holde in Soccage that is were Freeholds yet the Lords still retaiâ— the Homage which in the Times we speak of was no idle insignificant Word and by that a Dominion over the Estate whereby upon Disobedience Treachery or Injury done to the Lords the Lands were forfeited to them and theâ— neither the Lands nor the Tenants to them which were termed Freeholderâ— were subject to any base Services or servile Works yet the Lords had still great power over these Tenants by reason of their doing Homage to them 〈◊〉 â—o nominè their Lands were many ways liable to forfeiture and therefore it waâ— but reason that the Chief Lords being Tenants in capite should conclude that Tenants in Soccage also and both make Laws and give Taxes for them without their being at all privy to it But admitting I grant that before 49th 〈◊〉 there were in some sense Commons in Parliament tho not as Knights Citizen and Burgesses chosen by the Common People as their Representatives Yet 〈◊〉 it not destroy mine or the Dr.'s Assertion who in the Introduction before the Answer to Mr. P. only affirms That before the 49th aforesaid the Body of the Commons of England or Ordinary Freemen as now understood or as we now call them collectively taken c. had any share or Votes in making Laws unless as they were 〈◊〉 presented by the Tenants in capite F. Be it so But I am sure in many places of the Dr's Booâ— he absolutely denies that there were any Commons in Parliament till the Time he Assigns But as for what you alledge in answer to my Queries how Tenants in Soccage could have Laws made for them and Taxes laid upon them 〈◊〉 â—heir Lords or Tenants in capite your answer is wholly grounded upon mistakes For in the first place King VVilliam did not grant all the Lands in England to be held of him by Knight's Service since as I shall prove hereafter there were many subordinate Tenants to Bishops Abbots and other Great Lords who never forfeited their Estates at all nor were disseiz'd of them by your Conqueror â—ad who had also great numbers of considerable Freeholders under them as in 〈◊〉 at the greatest part of the Land was Gavelkind which was Soccage Teâ—re In the next place neither were all the Lands he bestowed upon his Followers granted to be held by Knight's Service since you your seâ—f own that a great deal â—â—land was given by him to his Inferior Servants to be held by Petit Serjeanty and besides this a great deal of other Lands was regranted by that King himself 〈◊〉 some of those old Proprietors who had been dispossessed to be held in Soccage is appears from Fleta who speaking of these sort of men says expresly In 〈◊〉 maneriis seilicet Regis erant liberi Hemines Labâ—ri Tenentes quorum quidaâ—i 〈◊〉 per Potentiores a Tenementis fuerant ejecti eadem post modum in Villenagium tenenâ—â— resempserunt quia hujusmodi Tenentes cultores Regis esse dâ—gnoscuntur provisa 〈◊〉 quiet ne sectas facerent ad Comitatum Vel hundredum c quorâ—m â—â—gregationem tunc Soccam appellarent hinc est quod Sokemanni bodie dicunâ—â— c. Where you may see that these Socmen or Soccagers were then created by a â—ew Tenure from this King Nor did all the Tenants in capite grant their Lands â—o others to be held by Knights Service since they as well as the King did at first 〈◊〉 also in process of time grant Lands to the Old English Proprietors to be held of â—â—em in Soccage nor was Homage the proper or only Badge of Soccage Tenure but â—ealty unless the Land had been held by Knights Service at first as you may see in Littleton's 2d Book Sect. 118. Nor did this Soccage Tenure give the Lord any more right over his Tenants Estate to tax him de alto bâ—sso at his Will by â—eason of the subjection he was in to the Lord in respect of Forfeiture since â—hen the King should have had for the same reason the same Rights over all his 〈◊〉 in capite to tax them likewise at his pleasure and this Right of Forfeiâ—â—â— in case of Felony or for want of Heirs continued to the Lords as well of Soccage Tenants as others long after the time you assign for the coming of the Commons to Parliament even to our own Times and yet for all that those Lords could not give taxes for such Tenants in Soccage at their pleasure But that we may proceed pray consider also the form of the Peace agreed upon between the King the Prince his Son and the whole Body of the Kingdom assembled in Parliament to compose all Differences between the King and the â—arons The Title of which in the Record is thus Haec est forma 〈◊〉 a Domino Rege Domino Edwardo filio suo Praelatis Proceriâ—â—â—â—â—â—â—ibus cum Communitate totâ Regni Angliae Communitèr Conâ—â—â—ditèr approbata Which Articles were signed by the Bishop of Lincoln the Bishop of Ely Earl of Norf. Earl of Oxon Humphry Bohun William de Monte Canisio Majore London in Parliamento London Mense Iunii Anno Domini 1264. Haec autem â—rimatio facta est London de Consensu
confer any new Right or Priviledge upon Freeholders of 40 s. per Annum to give their Voices at such Election as you suppose but only takes away the Right which the smaller Freeholders of under 40 s per Annum whether Tenants in capite or not had before and restrains it only to such as shall have Lands or Tenements to the vaâ—â— of 40 s. by year above all charges And it is yet a much greater mistake to suppose as your Dr. doth that this Statute of 8 th Hen. VI. was at all altered by that of the 10 th of this King which is no more than an Explanation of it viz. that by 40 s. per Annum was meant 40 s. Freehold and that of Lands lying within the County where the Election should be made So that nothing can prove more expresly that all Freeholders as well Tenants in capite as by any other Tenure were all alike capable of Elections and being elected by the Ancient Law and Custom of England long before those Statutes and consequently were all alike Freeholders in the Eye of the Law But if you have nothing at present to object against what I have now said pray pursue the Method you have undertaken and let me see those convincing Proofs you so much rely upon and which you hope may also serve to convert me M. Before I undertake this Task pray permit me to give you my Opinion in answer to the Difficulty you have now proposed which I confess seems to carry some weight with it but those Prejudices will soon vanish when we consider that the first time this Alteration was practised it was done in the King's Name tho by the absolute power of Simon Mountfort in the 49th Hen III. and after a discontinuance of above twenty years was again renewed by Edw. I. at the desire of the Earls and Barons as I hope I shall shew you before we have finished our Conversation And therefore it being first done by the King 's absolute Power and after with the general consent of the Lords there needed no Statute to introduce it any more than there was in the Reign of VVilliam the Conqueror to give the Bishops and Abbots that held by Knight's Service places in Parliament among the Temporal Lords and to bring their Lands which were held before in Franc Almoigne under the Yoak of Military Service But to proceed in the Design I have undertaken it is necessary that I shew you first of all who were those Freemen or Freeholders properly so called upon whom the whole burden of the subordinate Government of the Kingdom chiefly relied and who then constituted the Legal University or Community thereof immediately after the Norman Conquest and during many King's Reigns after that time I suppose you are not ignorant that King VVilliam the Conqueror having outed all the English Nobility and Gentry of their Estates gave them away to his French and Norman Followers to be held of him and his Successors in capite either by Knights Service or Petit Serjeanty reserving to himself the Ancient Demesnes of the Crown and adding more thereunto for the maintenance of the Royal Dignity and for this I need refer you to no better Author than Doomsday's Book it self And then after he had thus distributed the Lands of England as aforesaid he composed a Body of Laws still extant and which are in great part Addition to the Ancient Laws of King Edward and his Predecessors I shall give you three or four of these new Laws and then I shall leave you to judge who were the true Freemen or Freeholders of the whole Kingdom The first is the 52 d Law of this King Tit. De Fide obsequio ergo Regem Statuâ—mus etiam ut omnes Liberi Homines faedere Sacramento affirmarent quod intra extra Regnum Angliae quod olim vocabâ—o Regnum Britannie VVilâ—ielmo Regi Domino suo Fideles esse volunt Tâ—ras Honores illius omni fidelitate servare cum eo contra inimicos alienigenar difendere Now who these Freemen were that were thus to maintain the King in his Lands and Honours we shall see in the 55th Law following Tit. De Clienteleri seu Feudorum Iure Ingenuòrum immunitate Volumus etiam ac firmiter praecipimus concedimus ut omnes Liberi Homines totius Monarchiae Regni nostri praedicti habeant â—â— meant terras suas Póssessiones sâ—â—s benè in pace libere ab omni Exactione injusto ab omni Tallagio it a quod nihil ab eis exigatur vel capiatur nisi servitium suum liberum quod de jùre nobis facere debent facere tenentur prout Statutum est in allis a Nobis Datum Concessum jure Hereditario imperpetuum per Commune Consilium votius Regni nostri Whereby you may see that all the Freemen here mentioned who were to hold their Lands and Possessions in Peace and free from all unjâ— Exaction and Taillage were only such who were to perform Free Service i. e. Knight's Service which was before appointed and granted them in Hereditary Right by the King in the Common Council of the Kingdom So that none were properly Freemen or exempt from Tax or Talliage but such as held by Military Tenure tho not Knighted And pray also by the way take notice that by this Commune Consilium Regni you are not to understand a Council of English men or of English and French together but one wholly made up of Frenchmen or Normans who as well Bishops and Abbots as Temporal Earls and Barons held almost all the Lands in the Kingdom by Knights Service Which is also farther made out by the 58 th Law Tit. De Clientum seu Vassallorem prastationibus Statuimus etiam firmiter praecipimus ut omnes Comites Bermes Milites Servientes Universi Liberi Homines totius Regni nostri prâ—â—â—â—tihabeant teneant se semper benè in Armis in equis ut decet oportet qud sint semper prompti benè parati ad servitium suum integrum nobis explendum pâ—â—â—gendum cum semper opus adfuerit secundum quod Nobis debent de Feodis Teneâ—â—â—tis suis de Iure facere sicut illis statuimus per Commune Consilium totius Regni nostri praedicti illis dedimus Concessimus in Feodo Iure Haereditario hoc praeceptum non sit violatum ullo modo super foris facturam nostram plenam So that here all the Freemen of his Kingdom were to perform their Military Services with Horse and Arms according to their Fees and Tenures Therefore they were Tenants in Military Service onely which in those times were the only great Freemen and that Service the only Free Service which were meant in this Law And â—ow different they were from our ordinary Freeholders at this day for whom neither of these Laws were made I dare leave it
to the Judgment of every indifferent person These then were the men the only Legal men that named and chose Juries and served on Juries themselves both in the Countrey and Hundred Courts and dispatched all Countrey Business under the Great Officers as will appear by the next Law with a little Explication Ut Iura Regia illaesa servare pro viribus câ—entur subditi Statuimus etiam firmiter praecipimus ut omnes Liberi Homines totius Regni praedicti sint Fratres conjurati ad Monarchiam nostram ad Regnum nostrum pro viribus suis facultatibus contra inimicos pro posse suo defendendum viriliter servaâ—um Pacem Dignitatem Coronae nostrae integram observandam ad Iudicium Recâ—um Iustitiam constanter omnibus modis pro posse suo sine dolo sine dilatione faâ—endam Now the Judgment they were to give and the Justice they were to do by this Law besides that in their own Courts and Jurisdictions was principally as they were Jurors or Recognitors upon Assizes c. tho some of the greatest of their Milites were often Sheriffs Hundredaries and other Under Iudges and Ministerial Officers of Justice in their several Counties as may be seen in Glanâ—ille every where but especially Lib. 2. c. 10 11. lib. 9. c. 7. c. 17. lib. 13. throughout This of being Suitors to the County and Hundred Courts c. being a Service incident to their Tenures and before them many times anciently in the County and Hundred Courts and not privately in a Chamber were Executed Deeds Grants and Donations of Lands contained in very small pieces of Pâ—rchment witnessed by Thomas of such a Town Iohn of another Richard of a third c. which were Knights and Liberi Tenentes in Military Service in those Towns of considerable Estates and not the lower sort of people And this Execution of Sales and Assurances in open Courts was as publick and notorious and as secure as if at that time there had been a publick Register for them F. Before I answer your Conclusion from King VVilliam's Laws I must tell you I am not at all satisfied neither with the Account you give how the Commonâ— of England could come in to be a part of the Parliament without any noise or notice taken of it either by our Acts of Parliament or Historians since it is not only improbable but also quite contrary to Matter of Fact and History it self as I shall I hope make good when we come to treat of that Subject Nor is your Argument of any weight since it doth not follow that because VVilliam the Conqueror so subjected the Lands of Bishops and Abbots to Tenure by Knights Service that therefore this was done by his sole Power without any Law for it made by the Common Council of the whole Kingdom Since I observe in the first Law of King VVilliam which you have now cited that the very Services which you say were reserved upon the Lands he had bestowed are said to be so appointed or setled by the Common Council of the whole Kingdom and therefore certainly the Services of the Bishops and Abbots must be so likewise And therefore I must confess my self to be of Mr. Selden's Opinion in this Matter who presumes there was a Law for it tho now lost and cannot believe that this King how powerful soever should attempt to introduce so great a yoak upon all the Bishops and so many of the Abbots and Pâ—â—ors of England without their consents expresly given to a Law and made in the Great Council concerning it tho that Law as many others of this King is not now to be found But to come to the main Design of your present Discourse which is to shew that none but Tenants by Military Service in capite were in the first times after the Conquest properly the only true Freemen or Freeholders of the whole Kingdom I shall shew you that first the Notion is quite new and never heard of till the Dr. from whom you have borrowed it first broach'd it neither Mr. Lambard Mr. Somneâ— nor Sir Henry Spelman nor any of our English Antiquaries or Lawyers ever discovered any such thing before your Dr. arose to disperse these Clouds every man of the Kingdom who was no Villain being look'd upon as a Freeman and every Owner of Lands of Inheritance though of never so small a proportion reckoned a Freeholder and his Estate called his Franc Tenement or Freehold as well in our Ancient as Modern Laws and that Freehold was not restrained only to Military Service within a hundred years after the Conquest appears by King Iohn's Magna Charta In which it is expresly recited that Nullus distriâ—â—tur ad faciendum majus servitium de Feodo Militis nec de alio Libero Tenemento quâ—â— inde debetur and that Socage Tenants tho by Villain Services were as much Freemen as your Tenants in capite see Spelman's Glossary Tit. Socman where he says thus Socmannus in natura brevinan brevi de Recto propriè talis est qui Liâ—e est tenet de Rege seu de alio Domino in antiquo dominico terras suas seu Tenementâ— in Villenagio Libro Sancti Albani Tit. Honcton Chap I. Rege Angliae manerium de Hâ—â—cton tenuerunt in dominico omnes Tenentes Liberi scil custumarii per sokam defendebant tenementa sua c. ex quo patet sokmans liberos 〈◊〉 significare But since you seem to make a distinction between Freemen and Freeholders properly or improperly so called since King VVilliam's Laws you have now cited do not warrant any such Distinction I must beg your excuse if I am not of your Opinion for the First Law you have quoted warrants no such thing it only says That all Freemen in general shall take an Oath of Fealty to the King to maintain him his Lands and Honours against 〈◊〉 Enemies and Strangers Now it is apparent that this Law extended to all Freemen who were by the Ancient Saxon Laws recited in the Addition to the Laws of King Edward to take the very same Oath in the Folkmote as they were after your Conquest to do according to this Law either in the County Courts or Sheriffs Tourne Nor will the next Law do the business any more than this for the Words are That all Freemen of our said Kingdom may have and hold their Lands and Possessions free from all â—njust Taillage Exactions c. Which Word Possessions extends not only to Lands of Inheritance much less to Lands held by Knights Service but also to Estates for Life and all other Chattels or Possessions as well real as personal Nor doth the Words Servitium Liberum extend only to those Services which were reserved upon Lands held by Knights Service in capite but also to those Common Services called Trinoda necessitas which I have formerly mentioned â—iz The building and repairing of Castles and Bridges and Expedition against Foreign Enemies
which all the Lands in England were liable to as well after as before your Conquest Nor will the 58 th Law make more for you for tho it â—â—ly says that all Earls Barons Knights and their Servitors or Esquires and all Freemen of the Kingdom shall always be fitted with Horses and Arms as they â—â—ought to be and which they ought to do according to and by reason of their â—ees and Tenures Now it is plain that this Law cannot extend to the Less 〈◊〉 Capite only since they according to your own sense are comprehended â—â—eder the Word Milites and their Servientes which seems to mean their Feudataâ—y Tenants are as much tyed by this Law to find Horses and Arms as the Tâ—â—ants in capite themselves So that whereas the Law says expresly Uniâ—â—rsi Liberi â—â—mines totius Regni it should have been to make good your sense Universâ— Libeâ—â— Homines qui de Rege Tenant in capite And as for the other Freemen who were â—f lesser Estates than to find Horses they were to be ready with such Arms as beâ—â—ed their Condition as we see it explained by the Assize of Arms of Henry II. which I have now cited so that this Law of King VVilliam is not to be taken in 〈◊〉 sense you put upon it That all the true Freemen of the Kingdom were obliged to be ready with Horses and Arms as if none were Freemen that did not but referring the Words Horses and Arms to those who were to â—ind both and the Word Arms to those Freemen who were only obliged to keep Arms â—it for Footâ—en which sense the words will very well bear tho expressed generally and concisely according to the Mode of those times which abhor'd more Words than â—eeds And if these Laws will not prove what you bring them for much less till the last you have cited For if the Words Omneâ— Liberâ— Homines totius Monarâ—â— in the First Law who were to take an Oath of Fidelity to the King must â—â—tend to all the Freemen of England as certainly it did all Freemen being aâ—â—e obliged to be sworn in the Court Leer and County Court so must this too 〈◊〉 Title being that Omnes subditi all the Subjects should endeavour to mainâ—â—in the King's Rights with all their Power And tho I grant that Subditi here are the same with Liberi Homines in the first Law yet since by that Law all Freemen were to take the Oath of Fidelity to the King these must be also the very same Freemen who were to be sworn Brothers to defend the Kingdom according to their Power and Estates So that all that you have said to prove your Tenants by Knights Service in capite to be the only Freemen that served oâ— Juries c. being built upon a false Interpretation of these Laws of King VVilliam are but the meer Fancies and Imaginations of the Author from whom you borrowed them But taking the Words Liberi Homines in the strictest sense and as they are is the Magna Charta of King Iohn and H. III. Chap. 14. where it is ordained that Liber Homo non amercietur pro parvo delicto nisi secundum modum illius delicti salvâ—â—h contenemento suo mercatar eodem modo salva marchandiza villanus salvâ— VVâ—nagio Upon which Words Sir Edward Coke in his 2 d. Inst. observes that 〈◊〉 Homo is here meant such a one as enjoys a Franc Tenement that is any sort of Freeâ—â— hold But pray go on to prove by some plainer Authorities that the Arch-Bishopâ— Bishops and Abbots c. together with the Earls Barons and other Tenents in capita were the only Council of the Kingdom for the assessing of Taxes and making Laws in the Times immediately succeeding the Reign of King William the First M. I shall perform your Desires and will begin with the Great Council 〈◊〉 Parliament held at Clarendon of which Matt. Paris tells us 〈◊〉 Dom. 1164. 10 th of King H. II. In presentia Regis Henriâ—s 〈…〉 rendon 8 Calend. Febr. c. de mandato ipsius Regis presentibus 〈◊〉 Archiepiscopis Episcopis Abbatibus Prioribus Comitibus 〈◊〉 Proceribus Regni facta est Recognitio and which Quadrilogus and GErvas◠〈◊〉 Canterbury comprise under the General Terms of Brasules Prâ—ceres Regni the Bishops and Great Men of the Kingâ—dom What can be more clear by this Enumeration of the Constitâ—â—ent Parts of this full Parliament as Mr. Sâ—lden and other Authoâ— agree it to be than that the Commons were then none of theâ— and that the Clerus and Populus in Hoveden were only the 〈◊〉 and Lay Nobility So likewise when these Constitutions were again renewed by this King at â—â—thampton the same Author tells us tho by a Mistake it is writtâ—â— Nottingham That Rex Pater ibi celebravit Magnum Consilium de 〈◊〉 t is Regni coram Rege Filio Suo coram Archiepiscopis Episcopâ—â— Comitibus Baronibus Regni sui which Council is more partiâ—â—larly recited by Benedictus Abbas in his Manuscript History 〈◊〉 in the Cottonian Library Anno. 1176. which was the 25 th H. 〈◊〉 Circa Festum Conversionis Sancti Pauli venit Dominus Rex usque â—â—â—thampton Magnum ibi celebravit Concilium de Statutis Regni sui 〈◊〉 Episcopis Comitibus Baronibus Terrae suae coram eis per 〈◊〉 Regis Henrici Filii sui per Concilium Comitum Baronum Nilitâ—â— Hominum suorum hanc subscriptam assisam â—ecit c. And Ralph de Diceto Dean of St. Pauls A. D. 1210. a diligent Searcher into the Histories and Transactions of his own and former times doth yet more fully declare the meaning of Abbot Benedict in the Account he gives of this Great Council thus Rex juxta Consilium Filii sui Regis coram Episcopis Comitibus Baronibus Militibus aliis Hominibus suis in hoc consentientibus c. Hoc autem factum est apud Northamptonam â—ino Kal Febr. From all which Authorities we may collect that this Council at Northampton as well as that at Clarendon was a Great or Common Council of the whole Kingdom to which were summoned of the Laity only the Earls and Barons of his viz. the King's Land to which is also added for the better explaining who were understood under these Titles of Baronum Militum Hominum suorum that is such Tenants in capite as were Knights and such as were his Men or Tenants that is Military Tenants as were not Knighted and who held Lands either of the King or his Son to whom the King might assign divers of these Barons and Tenants in capite to atturn Tenants to him and to maintain his Court and Kingship And the King 's Comites and Barones terrae suae were the Earls and Barons of his Kingdom that held immediately of him or were his immediate Tenants in capite and that Homo suus homines sui doth for
destrain for the Escuage so Assessed by Parliament or in some Cases they may have the King 's Writ directed to the Sheriffs of the same County c. to Lâ—vy such Escuages for them as appears by the Register But if either King Iohn or King Hen. III. granted Writs to levy Escuage upon the under-Tenants of the great Lords and Tenants in Capite without their own Consent in Parliament this ought to be no more cited as a Precedent than any other illegal Acts committed by those Kings since as our Records and Histories tell us it was such illegal Proceedings which were the cause of the Barons Wars And it is expresly against the words of this Charter of King Iohn which you have now quoted viz. nullum Seâ—â—agium vel Auxilium pâ—nam in Regno nostro nisi per Commune Consilium Regni nostri So that notwithstanding all you have yet said it doth not appear to me how Scutage when given as a Tax upon Knights â—ees alone and to be levyed not only from the Tenants in Capite themselves but their under-Tenants as also from the Tenants of them who though they held in Capite yet held not by Knights Service such as were the Tenants in Peâ—â—y Serjeanty and those who held of the King in Chief as of several Honors and not of hiâ— Crown as in Capite could ever charge such Tenants without their Consentâ— given either by themselves or their lawful Representatives much less could your Tenants in Capite Tax or Charge such as did not hold in Capite themselves viz. Those Abbots and Priors who held Lands in Right of their Monasteries in Franc Almâ—igne and who together with their Tenants made at least two third parts of all the abby-Abby-Lands in England as also Tax'd those who not holding by Knights Service at all but by Tenure in Socage or Fee Farm did not hold their Lands as Knights Fees and therefore could never be Taxed by your Tenants in Capite for so many Knights Fees or parts thereof And Braecton who lived at this very time has distinguish'd to no purpose between those Common Services which all Tenants owe their Lords and the general Taxes or Charges imposed by the Common Consent of the whole Kingdom The words are very remarkable pray read them Sunt quaedam Communâ—s praestationes quae servâ—cis non diâ—uâ—iâ—â— nec de consuâ—tudine venâ—um nisi cum necessitaâ— intervenerit vel cum Rex venorit sicut sunt Hidagia Corraagâ—â— Carvagia alia plura de necessitate ex consensu Communi torius Regni introducta quae ad Dominum feâ—di non pertinent And therefore I cannot see any Reason why the great Lords and Tenants in Capite should ever have Power to lay a general Tax upon the whole Kingdom not the tenth part of which did then hold of them by Knights Service So that nothing seems plainer to me than that there was us our ancient Historians tell us a distinct Court which was held anciently three times every year viz. at Easter Whitsuntide and Christmas and then the King was attended by all the Bishops great Lords and other Tenants in Capite and this was called Curis or Concilium Regis and if any difference of Right did arise between the King and his Tenants or between Tenant and Tenant here it was to be heard and determined and many other things were there uâ—ted and done in relation to the King's Barons or Tenants in Capite only But under Favour this was not the Commune Consillum Regni or Parliament as we now call it for the King held this Court ex More or by Custom without any Summons as Simon of Durham and Florence of Worcester and divers other Writers of the Lives of our first Norman Kings do shew us But when they take notice of the meeting of the Commune Consilium totius Regni their Expressions after and then they say that Rex ascivi as it is in Ordericus Vitalis Ex praecepro Regn convenerunt or as Eâ—â—merus Rex Sanctione sua adunavit And Mat. Westminster of later times takes notice of this Union or Meeting of this Câ—ria or Assembly of Tenants in Capit together with the Great Council or Parliament in his History of Hen. III. Where relating how the King again confirmed the Great Charter in a Parliament Anno Domini 1252. being the 37 th of his Reign He hath these words In quindenâ— Paschae Adunato Magno Parliamento c. So that it seems plain to me that this uniting of the great or whole Parliament must be understood the Conjunction of both Councils together and therefore when this Council of Tenants in Capite that thus met ex more took upon them assess Escuage and transact other matters of consequence without the consent of the major part of the Tenants in Capite who often failed to appear at these Courts or Assemblâ—es held ex more it was then and not before expresly provided by this Charter of King Iohn that Escuage should not be assessed for the future without Summons or Notice given of it to all the Tenants in Capite who had right to be there M. I see you would fain prove that there was a Council or Assembly of great Lords and Tenants in Capite distinct from the Parliament and which met ex more and that these were the Persons who were by this Charter to Assemble for the Assessing of Escuage which is a meer precarious Hypothesis nor can you or those from whom you borrow this Notion make it out from any good Authority for I have already proved that the Barones Regis Regni were the same Persons and that usually the Barons or Tenants in Capite of what Quality soever did repair to the King's Court at Christmas Easter and Whitsunday doth appear to have been the Custom of those times from the Testimonies of our ancient Historians But to prove by examples out of the Authors you your self have made use of that the Bishops great Barons and Tenants in Capite were then alone the great Council of the Kingdom pray read Eadmerus speaking thus Celebratum est Concilium in Ecclesiâ Beati Peiri in occidentali parâ—e juxta Lâ—nâ—inum sita Communi Consensâ—â— Episcoporum Abbatum Principum totius Regni buiâ— Conventui assuerunt Primates Regni utriuâ—que ondinis And at this Meeting were present the Prime Men of the whole Kingdom of both Orders in this Council the Bishops and Barons are called the Principal or Chief Men of the Kingdom yet these were all the King's Barons they all held of him in Capite and so did all the Chief Men of the Kingdom So likewise in another Meeting under this King Hen. â— when Arch-Bishop Anselm was to give his Answer to the King according â—o the Advice of the Bishops and chief Men of the Kingdom The same Author tells us of Anselm that in Pascha ad Curiam venit Communis Concilii vocem unam
held wholly by Socage Tenure whereas it appears plainly by Littleton that Tenants in Petyt Serjeanty were subject to Wardship Marriage and Relief So that whoever will but consider that near half the Lands in England were held by Bishops Abbots Priors c. and of whom not a third part held by Knights Service of the Crown and will then likewise consider what a vast number of Tenants those Abbots Priors Deans and Chapters who were not Tenants in Capite at all must have had and who either held Estates in Fee or else for Life under them in Socage as well as by Knights Service as also all the other sorts of Tenures I have already mentioned which either held of the King as of some Honor or Castle or else of other Mesne Lords by other Tenures than Knights Service must certainly conclude that not above one half of the Lands of the whole Kingdom was held either immediately of the King or else of other Mesne Lords by that Tenure So that if all these Persons which were far the greater Number of the Free-holders in England should have been thus excluded from having any thing to do in our Great Councils I doubt not but we should have found sufficient Clamour in our Histories against so unjust a Constitution and when the whole Body of the Kingdom was in Arms against King Iohn at Running-Mead they would likewise have inserted a Clause for themselves if they had not had their Suffrages there before either by themselves in their own Persons or by their lawful Representatives And therefore upon the whole matter I durst leave it to the Consideration of any unprejudiced Man whether it is not much more probable that the Constitution of Knights of Shires Citizens and Burgesses appearing in Parliament should be much more antient then the time you assign than that so small a Body of Men as the Bishops Lords and Tenants in Capite should represent all the Freeholders and People of England who never held of them by Knights Service at all Nor have you yet answered the Quotation I have brought out of Bracton in my last Discourse to the contrary And whoever will but consult that Author in his Chapter of Tenures will find that the Tenants in Capite were so far from having a Power of charging all the Mesne Tenants at their Pleasure that in his Chapter de Tenuris it appears that a Mesne Tenant in Capite having purchased an Estate for a valuable Consideration was lyable to no other Services and Conditions than what his Tenure express'd which once performed the Lord had no more to say to him and if so be he laid any further Burthens upon him he might have had a Writ of acquital out of the King's Court against him directed to the Sheriffs several Forms of which you may see in Glanville and in the old Register M. We are not to rest upon meer Probabilities for some things that now appear to us unreasonable at this instant of time might then be very just for if the Feudatary Tenants of the Bishops Barons and other Tenants in Capite were well enough contented with the Constitution of the Kingdom as it then was and that it plainly appears by matter of fact that there was but one Common Council for the whole Kingdom and that of the Bishops Abbots Great Lords and less Tenants in Capite only it is in vain to argue of any unreasonableness in or Inconveniencies that might arise from such a Constitution though perhaps a great part of the Kingdom did not hold in Capite nor yet by Knights Service and therefore though the Feudatary Tenants of the Tenants in Capite were upon the performance of their Services acquitted of all other Charges yet this was still to be understood only of such ordinary Services as those Tenants were to perform by virtue of their Tenures such as was Scutage Service or the attending upon their Lords when they went out to War along with the King but did not extend to such Scutages as were granted in Parliament or as a Tax upon Land by the common consent of the Nation for then the Tenants in Capite were not only the Grantors but the Collectors too of such Scutage Tax from their Military Tenants and the Writs to the Sheriffs were different from those for Scutage Service and for proof of this I desire you would peruâ—e that Writ which the Dr. Quotes of the 19th of Hen. III. which is still to be seen in the close Roll of that Year Rex Vice Comiti Sussex salutem Scias quod Archiepiscopi Episcopi Abbates Priâ—reâ— Comites Barones omnes alii de Regno nostro Angliae qui de nobis tenent in Capite spontanea voluâ—â—â—te suâ— sine Conâ—uetudine concesserunt nobis Efficax Auxilium ad magna Negotia nostra Expedienda unde provisum 〈◊〉 de Consilâ—o illorum quod habeamus de feodis Militum Wardis quae de nobis Tenent in Gapite duâ—s Marcas ad predictum Auxilium faciendum unde proviâ—erint reddere nobis unam medietatem ante Festum sancti Micâ—aelis Anno Regni 19. aliam Medictatem ad Pasche Anno Regni â—osirâ— 20. Ideo tibi precipimus quod ad Mandatum venerabilis Patris R. Cicestren Episcopi Cancellarii nostri sine dilatione Distringas omnes Milites liberos Tenentes qui de eo Tenent per Servitium Militare in Balliva tua ad redlendum ei de singulis feotis militum Wardis duas Marcas ad predictum Auxilium nobis per manum suam Reddendum in Terminis predictis Sic scribitur pro aliis Episcopis Abbatibus Prioribus Magnatibus Now I desire you to tell me whether any thing can be more plain than that this Tax was granted by a Common Council of the Kingdom according to that Clause of King Iohn's Charter I have now cited Wherein it is first especially provided that no Aid or Scutage shall be imposed upon the Kingdom unless by the Common Council thereof and yet you see by this Writ that the Archbishops c. with the Barons there mentioned together with the other Tenants in Capite alone granted an Aid or Scutage Tax of two Marks for every Knights Fee which they held of the King and that by virtue thereof not only those Knights Fees they held in their hands but also all those Subseudatary Tenants called here Freeholders who held of them by Knights Service were likewise charged for every Knights Fee so held the like Summ of two Marks Now I think nothing can be more plain from this Record than that this was a Common Council of the whole Kingdom and yet consisted of Tenants in Capite only and therefore I desire you to shew me some better Proofs than you yet have done that these Tenants in Capite ever made a distinct Council different from the Common Council of the whole Kingdom F. I grant this seems at first sight to be a good Authority for
be likewise a sufficient reason given why this great change might have been made in the constituent parts of our great Councils and yet no change of Phrases or Expressions might be made in our Records and Statutes nor any notice taken of it by our Historians which is because the first Knights of Shires being chosen out of and by the Tenants in Capite only the change was imperceivable at first there being still Men of the same order appearing in Parliament for the whole Body of those Tenants the difference being only in the Number viz. Two for a whole County whereas before all the chief Tenants in Capite came in Person and I am the more inclined to be of this opinion because in this Writ of Expences of the 49th of Henry III. which you have now cited there is no such Clause as is in the following Writs of like Nature prout in casu consimili fieri conâ—uevit which shews it to have been a new thing for the Knights of Shires to have their Expences allowed them that being the first time of their Meeting in Parliament F. I confess what you say is very plausible were there any Colour of a proof brought by you for it but I shall shew you further that your distinction between the Communitas Regni and the Communitas Comitatus signifies nothing unless you can prove that this Communitas Regni was not the Representative of the Communitates Comitatuum mentioned in this Writ and did not consist of Persons of the same degree or order for the Writ of Summons of 49th Hen. III. says no more then that these Knights should be de legalioribus peritioribus militibus comitatus without limiting them to Tenants in Capite But as for your Reason why these great alterations might be made in our great Councils or Parliaments without any notice taken of it it is altogether false and precarious for you have not yet nor can I believe give me any sufficient Authority beside the Drs. bare assertion that ever none but Tenants in Capite were capable of being Elected Knights of Shires or that none but such Tenants by Military Service were the Electors And I think I have sufficiently confuted the Vanity of that Assertion at our last Meeting when I shewed you the false interpretations you gave of those Statutes of 7th of Hen. IV. and 10th of Hen. VI. whereby you would have proved that there was some alteration thereby made as to the Electors of the Knights of Shires at the County Court Whereas indeed before those Statutes all Persons of whatsoever Tenure and of howsoever small an Estate of Free-hold who owed Suit and Service to the County Court were capable of being Electors and consequently of chusing whom they pleased as well Tenants in Capite as others to be Knights of the Shire and that those who were not such Tenants were frequently chosen in the Reigns of Edward the Third and Richard the Second I could bring sufficient proofs were it worth while to insist upon a thing so certain But I shall go on to prove that the same words viz. Communitas le Commune or la Communalie were used in many of our Statutes and Records to signifie the Commons I come therefore to the Reign of Edward the First and I pray in the first place remember what I took notice of at our last meeting concerning the Statute of Westminster the first made in the third year of this King beginning thus in French per L'assentement des Archesques Evesques Abbes Priors Counts Barons tout la Communalty de la Terre Illonques Summones Now every one knows that Communalty is but French for the Latin Communitas as appears by the first Writs we have left us except that of the 49 th of Henry the Third now mentioned de expensis Militum being of the 28 th of this King directed to the Sheriff of Somersetshire to levy the expences of the Knights for that County who had served in the last Parliament le Communitate Comitatus praedicti i. e. of the Commons of the said County in general the same Clause is also in the Writs which were then issued for the expences of the Citizens and Burgesses who served in this Parliament which were also to be levyed de Communitate civitatis vel Burgi which sure must mean the Commonalty or Commons of all those Cities and Burroughs there mentioned for the Record is Eodem modo scribitur Majoribus Ballivis pro Burgensibus Subscriptis And which is also more remarkable these Writs contain this Clause that the said Knights and Burgesses should have their expences allowed pro veniendo manendo redeundo a Parliamento praedicto prout alias in casu consimili sieri consuevit which words relating to a former Custom not then newly began as this word consuevit in a legal sense still imports must needs relate to some time much more ancient than the 49 th of Henry the Third or the 18 th of this King the former of which was but 26 years and the latter but 10 years before this 28 th of Edw. the First in which time there were not above thirty Parliaments called if so many And further that the Word Commonalty signified the Body of the Commons and not Tenants in Capite in the Reign of this King appears by the Statute or Ordinance the year is uncertain intituled Consuetudines Canâ—iae which you may see in French in Tottles Collection the Title of them is thus Ceux sonâ— les usages les queax la Communalty de Kent Clayment avoir en Tenements de Gavel-Kind Now every body who knows any thing of Geval-Kind know also it was generally a Socage Tenure there being but little of it held by Knights Service and consequently the owners of such Lands who were then the greatest part of that County are here called la Communalty de Kent So likewise in the Reign of Edward the Second the same words are used in the same sense as in the Statute of Pardon for the death of Pierce Gaveston made in the Seventh of this King which is granted per nous i. e. the King himself per Archievesques Evâ—sques Abbes Priors Counts Barons la Commonalâ—â— de nostre Rolaume illonques assembles So also in the Latin Records as appears by an Act of Pardon granted in Parliament in the 12 th year of this King Consentientibus Praelatis Prâ—ceribus Communitate Regni So likewise the Statute of York of the same year writ in French is recited to have been made per Assâ—nt des Preâ—us Counts Barons la Commune du Royalme illonques assemblez Where you see that the Latin word Communitas and the French le Commune signifie the same Order of men In the Reign of Edward the Third I can give you these remarkable examples of the same words in the Parliament Roll in the first of this King Andrew de Haâ—iford a Principal
of Parliament and Taxed with the rest of the Kingdom as often as there were Laws made and Taxes given when their Bishop or Earl was present which was not so for in the first place as for the County of Chester if the Earl had been the Representative in Parliament of his Tenants by Knights Service or otherwise as also of all the Abbeys and the City of Chester it self and all other great Towns in that County his Vote in Parliament would have obliged all of them and there would have been no need of a Common Council or Parliament of the States of the whole County in which they then made Laws and Taxed themselves as a Separate Body from the rest of the Kingdom as may appear from these following Records which Mr. A. hath given us the first of which is a Writ of K. Edw. I. directed Archiepiscopis Episcopis Abbatibus Prioriâ—us Baronibus Militibus omnibus â—liis Fidelibus suis in Comitat. Câ—striae reciting that whereas the Prelates Counts Barons alii de Regno had given him a 15 th of their Moveables He desires that they also would of their Benevolence and Courtesie in Latin Curialitate grant him the like Subsidy which Note could not be done out of a Common Council So likewise in another Writ of the 20 th of this King reciting that whereas the Probi Homines Communitas Cestriae sicut caeteri de Regno nostro 15 mam partem omnium mobilium suorum nobis concesserunt gratiose Now supposing as the Doctor always does that these Probi Homines were the Earls Tenants in Capite what can this word Communitas here signifie but another sort of men distinct from them viz. the Communalty or Commons of that County And which is also remarkable this County was now fallen to the Crown for want of Heirs male of the last Earl and so according to the Doctors notion the King being their sole Representative needed not to have been beholding to them for these Subsidies since tho not as King yet as Earl of Chester he might have Taxed them himself which yet he thought not fit to do because he knew it was contrary to the Rights and Priviledges of that County which had ever since the grant of it to Hugh Lupus by Will I. always been Taxed by themselves Which Priviledges are also expressly set forth in a Supplication of all the Estates of this County Palatine to K. Henry the Sixth which Mr. P. has given us from an Ancient Copy of it then in the hands of Sir Thomas Manwaring of that County Baronet Wherein the Abbots Priors and Clergy Barons Knights Esquires and Commonalty set forth that they with the consent of the Earl did make and admit Laws within the same c. and that no Inheritors or Possessors within the said County were chargeable or lyable or were bounden charged or hurt of their Bodies Liberties Franchises Lands Goods or Possessions unless the said County had agreed unto it Now what can here be meant by County but the Common Council or Parliament thereof since otherwise they could make no Laws nor do any other publick Act The like I may say for the County Palatine of Durham which from the Grant thereof by William Rufus to the then Bishop had always been Taxed by themselves and not by the Bishop in Parliament and that as low as the Reign of Edw. 3. as appears by this Record of the 14 th of that King containing a Letter or Commission to R. Bishop of Durham reciting that whereas the Prelates Earls Barons and the Commons of Counties had given him a 9th of their Goods there mentioned that therefore the Bishops should convene the Magnates Communitatem Libertatis vestrae to wit of his County Palatine ad certum diem locum with all convenient speed and that done to perswade and excite the said Magnates Communitas to grant the King the like or a larger Subsidy or Aid towards the maintainance of his Wars which had been altogether in vain if the Bishop or the King could in those days have Taxed this County at their Pleasure Now if these great Tenants in Capite could not Tax their Mesne Tenants without their consents much less could the rest of the Tenants in Capite in England impose Taxes on their Tenants in Military Service or in Socage without their consents which last had a much less dependance upon them M. I must confess I never considered these Precedents of the County Palatine of Chester and Durham and therefore can say nothing to them at present since it is matter of fact but as to Reason and Law I think it is consonant to both that not only Tenants in Military Service but Socage Tenure should be found by the Acts of their Superior Lords of whom all the Lands of England were formerly held by Knights Service And tho in Process of time many of these Estates and Lands became free Tenements or were holden in Socage that is were Free holders yet the Lords retained Homage which in the times we now write of was no idle insignificant word and by that a Dominion over the Estate whereby upon Disobedience Treachery or Injury done to the Lords c. the Lands were Forfeited to them and although the Lands nor the Tenants of them which were termed Free-holders were subject to any base Services or Servile works yet the Lords had a great Power over these Tenants by reason of their doing Homage to them which tho now antiquated yet eo nomine their Lands were many ways liable to Forfeiture and Taxes too So that upon all thesâ— accounts it was then as reasonable that the Tenants in Capite should in those days make Laws and grant Taxes for all the rest of the Kingdom as the Tenants in Capite in Scotland should do so to this very day for all the Inhabitants of that Kingdom of never so great Estates and to this Argument which is certain in matter of fact you have yet answered nothing nor do I believe can F. I cannot see notwithstanding what you have now said that the Superior Lords by reason of Homage should have an absolute Power over their Tenants Estates For tho in the Profession of Homage to the Lords I grant the Tenant thereby promised to become the Lords Man yet he never thereby meant to become his slave and there were mutual Duties on both sides so that if the Lord failed to protect his Tenant in his Estate or unjustly oppressed him he might have refused nay renounced his Homage till the Lord had done him right nor can I see how a bare right of having the Forfeiture of the Estate in the Cases you have put which yet let me tell you were never so strict in respect of Socage as Military Tenure as I could shew you were it worth while for if this right of Forfeiture alone could give the Superiour Lord a Power over his Tenants Estate to make Laws for
I grant all the lesser Barons or Tenants in Capite were to be Summonld by the Sheriff to come to the Common Council of the Kingdom the King might have only call'd some of the greatest and wisest of them and such as he thought most fit to advise him in making Laws and imposing Taxes upon the Nation And the like Prerogative his Son Henry the Third resumed during the greater part of his Reign as I shall shew you from divers old Statutes by and by And that our Kings did often take upon them to call whom they pleased and omit whom they pleased of these Tenants in Capite may appear by those who were called Pares Baronum or alios Magnates who are put after the Barons and of these there are many instances of their being called to Parliament and again omitted in several Kings Reigns after the Commons were a third Estate as represented as at this day F. I must beg your pardon if I cannot come over to your opinion notwithstanding what you now have said since I do not find your reason to come up to what you intend therein for you only suppose but without any proof that the words Populus and Communitas must signifie only Tenants in Capite in the ancient Scotish Charters and Statutes All the Argument you bring to the contrary is that I cannot shew you any Law by which it was altered to what it is now and therefore that the Constitution has been always the same as at this day Now pray consider whether this will not press altogether as hard upon you in relation to England for you cannot shew me any Law whereby the Tenants in Capite were excluded here and Knights of Shires introduced in their fleads and therefore by the same Rule let the Scottish Parliaments have been of what they will yet ours have been still the same they are now But if you say that this contrary usage hath been introduced either by the Kings Prerogative or by the silent consent of the People or by some Law that is now lost are not all the same Arguments to be made use of in the case of the Scotish Parliaments which I may upon as good Grounds suppose to have deviated from their original Constitution as you do that our English Parliaments have done it So that if those Arguments are of any weight they will serve for England as well as Scotland but if they are not it is in vain to make use of them at all The like I may say as to Burroughs in Scotland since it is as easie to suppose that divers Burroughs in Scotland might voluntarily desist from sending their Deputies to Parliament that did not hold of the King in Capite as it is that divers Burroughs in England did Petition to be exempted from sending Burgesses to Parliament by reason of their inability to pay the Expences of their Burgesses as I could shew you by divers Precedents some of which are in Print had I now time As for the rest of your Discourse I cannot imagin to what it tends for if the Tenants in Capite had any place in or right to come to Parliament how came they to have it but by reason of the great Freehold Estates they held of the King and if so I can see no reason why those that had as good or better Freehold Estates than they should be all excluded Or why a small Tenant in Capite of but one Knights Fee held of the King in Capite should give him a right to a place in Parliament and get that a Mesne Tenant or Vavasour as he was then called who held ten Knights Fees of some Bishop or Abbot who perhaps did not hold in Capite at all should have no right of appearing there nor of choosing any Representative for him since notwithstanding all you have now said the Doctor either contradicts himself or you when he tells us expressly in his Answer to Mr. P. That the Tenants in Capite who were no Barons represented only themselves and not the Commons but how this will agree with what he says in his Introduction that the Body of the Commons had no share in making Laws c. before 49 th of Henry the Third unless they were represented by thd Tenants in Capite and if so must then certainly represent those that he here calls the Body of the Commons of England Collectively taken But as for your notion of the Parliament's being the King's Court Baron tho you have borrowed it of a Learned Scotch Lawyer Sir George Meâ—â—ensy yet let me tell you it was never true for it is well known that the Great or Common Councils both in England and Scotland are much more ancient than the Tennres of Lands by Knights Service or then the very Institution of Mannors in this Kingdom which the Doctor tells us are of no higher an original than the Norman Conquest But admit I should allow your notion of the Parliaments being anciently the Kings Court Baron then certainly all the Tenants in Capite had a right to appear there and to be not only Suitoâ—s but Judges of all differences arising among the Tenants in the Lords Court where neither the Lord himself nor his Steward were Judges and that of right and not by savour whereas you suppose such a Court-Baron as was never heard of where the Lord could admit or exclude whom of his Tenants he pleased to which if they had a right ratione Tenurae certainly he could never do So that instead of a Court-Baron and a Common Council according to King Iohn's Charter whereby all the Tenants in Capite were to be Summoned to this Council or pretended Court Baron you suppose the King still retained a Prerogative of calling or omitting whom he pleased which instead of confirming the validity of the Charter and that it was to be a Rule how such Councils should be called for the future you make to signifie just nothing and that no Common Council was ever called according to that Model But pray shew me a Court-Baron wherein the Tenants ever took upon themselves a Power of giving Taxes out of their Estates that did not hold of the mannour though they were resident within it But indeed you are out in the whole matter for the Doctor himself grants in his answer to Mr. P. when he gives us King Iohn's Letters of Summons to a Council directed to the Barons and Knights and as he translates Eidelibus Feudatories or Vassals of all England wherein he lets them know that he had sent his Letters to every one of them if it might have been done Now what reason had he to write thus if these Gentlemen had no right to be consulted or that the King might have called or left out whom of them he pleased But the Barons and Tenants in Capite were in another mind when in the 37th of King Hen. III. as Mar. Paris tells us they refused to Act or Proceed upon any thing
no man will say that their Acclamations and crying yea yea will make our Kings Elective any more than it could do it in the Case of K. William who had a Title by Conquest precedent to this prâ—tended Election tho' I grant this custom may have been in use ever fined this Coronation of the Conqueror But that King William claimed indeed by Conquest and by no other Title let us not mind his specious colourable pretences but his actions which are the best Interpreters of the Thoughts of Princes and we shall find that thorough all his Reign he Governed this Kingdom as a Conqueror and this I shall prove by making good the three Instances I have already given of his great alterations of the Property Laws and Civil Liberties of the People of this Nation to begin with the first of these For the proof of which I shall make use of the Authority of Gervace of Tiâ—bury a considerable Officer in the Exchequer in the time of Henry the Second and who received his information from Henry of Bloâ—s Bishop of Winchester and Grand-child to the Conqâ—eror who is most full to that purpose which he thus delivers in the Manuscript Treatise called the black book of the Exchequer which I shall read to you according to the Learned Dr. B's Translation of it After the Conquest of the Kingdom and the just subversion of the Rebels when the King himself and his great men had viewed and surveyed their new acquests there was a strict enquiry made who they were which had fought against the King and secured themselves by Flight from these and the Heirs of such as were slain in the Field all hopes of possessing either Lands or Rents were cut off for they counted it a great favour to have their Lives given them But such as were called and sollicited to fight against King William and did not if by an humble submission they could gain the Favour of their Lords and Masters they then had the liberty of possessing somewhat in their own persons but without any right of leaving it to their Posterity their Children enjoying it only at the Will of their Lords to whom when they became unacceptable they were every way outed of their Estates neither would any restore what they had taken away And when the miserable Natives represented their Grievances publickly to the King informing him how they were spoiled of their Fortunes and that without redress they must be forced to pass into other Countries At length upon consultation it was ordered that what they could obtain of their Lords by way of Desert or Lawful Bargain they should hold by â—unqestionable Right but should not claim any thing from the time the Nation was Conquered under the Title of Succession or Descent upon what great consideration this was done is manifest says Gervacâ— for they being obliged to compliance and obedience to purchase their Lords â—avour therefore whoever of the Conquered Nation Possessed Lands c. obtained them not as if they were their Right by Succession or Inheritance but as a reward of their service or by some intervening agreement This alone were sufficient coming from an Author of such Credit and living so very near the time but besides his I shall give you the Authority of divers other Authors to the same purpose and particularly Ordericus Vitalis whom you but now cited tells us how William the first circumvented the two great Earls of Moreâ—a and that after Edwin was slain and Morcar imprisoned then King William began to shew himself and gave his Assistants the best and most considerable Counties in England and made Rich Collonels and Captains of very mean Normans and that he thus disposed of whole Counties to divers great men appears by Domesday Book wherein it is seen that the whole County of Chester was given by the Conqueror to â—upus a Norman so likewise the greatest part of Shropshire was given to Monâ—gomery And further he took away from the English their Estates and gave them to his Normans and this he did from his first coming in for Fitz-Osbern was made Earl of Arundel and Hereford at his first coming in and was Lord of Bettivil in Normandy and established the Laws of that Town at Hereford Alan Earl of Bâ—itain had all Earl Edwin's Lands given to him at the Seige of York about three years after his arrival to these I may add the 795 Mannors Robert Earl of Morâ—ton in Normandy and Cornwal in England had given to him by K. William so likewise â—lan Earl of Britain and Richmond 442 Mannors and Ieffery Bishop of Constance had 280 Mannâ—rs given him by the Conqueror besides many other Lands of the Saxon Earls Thains c. were all given to the Normans who took their Title from King William's Conquering Sword So that I think it is very evident that this King had distributed most of the Lands of the Nation to his Norman's long before the survey was begun and by that infallible Record it is clear that he gave near all the Lands of the Nation to his followers and very little or none to the English who held that they had hys new Title and new services from the Conqueror or his great Lords or became Tenants to or Drudges upon their own Lands as we heard before from Bracton and Fleta Here is enough to satisfie any unbyassed person that thâ— Conqueror did not lay by his Sword after the Battle of Hastings F. In answer to what you have now said concerning your Conquerors taking away the Lands of a great many of the English Nobility and Gentry it is so apparent in matter of Fact that it were a high piece of impudence to go about to deny it yet will it not therefore follow that what he thus disposed of were almost all the Lands of England as I shall shew you by and by but in the mean time to let you see that I am a fair adversary I will at present suppose that K. William took away all the Lands from the former owners and gave them to his followers who helpt him in his Conquest but these were not only the Normans his Subjects but French Flemmings Anjovins Britains Poictovins and People of other Natioâ—s who made up a great part of his Army and came in with him under great and considerable men their Leaders and whom your Dr. tells us came not out of staâ—k love and kindness without any consideration of sharing with and under him in the Conquest Now I desire to know by what Law or Act of theirs they thus constituted K. William an Absolute Monarch over them and their Descendants For as for the Normans tho' they were it's true his subjects yet they enjoyed divers considerable Rights and Priviledges at home and surely never intended to come over hither to make themselves as great Slaves as the People they had Conquered much less can it be supposed of these of other Nations who were not subjects to Duke William before
to private Churches and if his Nobles or Followers had unjustly dissieâ—ed any Bishop or Abbot of their Estates the King caused them to be restored again as appears by many Presidents of this kind which are to be found in Ingulphus and Eadmerus this being premised let us see in the next place what proportion the Lands belonging to the Church did in those days bear to the rest of the Lands in England now we find in Sprot's Chronicle as also from the old Legierbook cited by Mr. Selden in his Titles of Honour and particularly from that Secretum Abbotis formerly belonging to the Abby of Glassenbury and now in the Library of the University of Oxon that there were not long after your Conquest 60215 Knights fees in England of which the Bishops Abbots and other Church-men then enjoyed 28015. When it is supposed this account was taken then it will follow that in the Reign of your Conqueror there were above 28000 Knights Fees which belonged to the Church and in these we do not any where find that K. William dispossessed their Tenants of their Estates most of which were held in Fee under them and those Tenants were great and powerful men in their Countries and hence we read in the ancient Records and Legier Books of the Barons and Knights that held of divers Bishops and great Abbots several examples which you will find in Sir Henry Spellman Title Baro now it is certain that King William could not turn all these men out of their Estates and give them to his followers without committing sacriledge and invading the Rights of the Church which that King durst not commonly do so that the utmost that you can suppose he could do was to take the forfeitures of all such Tenants of the Church who had taken part with King Harold or had any ways committed Treason against himself which were far from the whole number of them so that here goes off at once almost a half of all the Lands held by Knights service which the King did never dispossess the ancient owners of to these may be also added all Tenants in ancient Demesne all Tenants in Socage as also all Tenants in Gavel kind which in those days made at least two thirds of the Lands of Kent which by the way was never conquer'd but surrender'd upon Terms to â—are their ancient Customs and Tenures as Mr. Cambden himself acknowledges in his description of this County besides what was held in other Counties by the same Tenure as you will find in Mr. Taylor 's History of Gavel kind all which being not Tenures in chief by Knights Service are not Register'd in Domesday book nor does it appear that the owners were ever dispossessed of them to which may also be added the Lands of those smaller Thanes or Officers of King Edward whose names are found in Domesday book who held their Lands ratione officii To all these we may also add all such Norman Noblemen and Gentlemen who having come into England in Edward the Confessors time and having Honours and Lands given them by him had continued here ever since and these were so numerous that it was thought worth while by King William to make a particular Law concerning them that they should partake of all the Customs the Rights and Priviledges of Native Englishmen and pay Scot and Lot as they did of these was the Earl of Moâ—ton besides many others whose names appear in Doomesday book and not only these men but also divers Cities and Towns held Lands of King William by the same Rents and Services as they had formerly paid in the time of King Edward the Confessor as Oxford for example But to give an answer to some of your instances as when you say that King William gave away whole Counties as all Cheshire to Hugh Lupus and the greatest part of Shropshire to Roger de Montgomery c. It is a great error to suppose that these Earls had all the Lands mentioned in these Counties to dispose of at their Pleasure and that they turned out all the Old Propâ—ietors which it is certain they did not as I could prove to you by several instances of Antient English Families who have held their Lands and enjoyed the same seats they had in the Conquerors time so that you see there is a great deal of difference between a grant of all the Land of a County and that of the whole County what is meant by the former is plain but as for the latter it generally implies not any thing more than the Government of that County Thus whereas your Dr. would have it that the greatest part of Shropshire was given to Roger de Montgomery Doomesday says only that he had the City of Shrewsbury totum Comitatum and the whole County But that is soon explained by what follows totum Dominum quod Rex ipse tenebat where it is plain that by Dominium is meant no more than that power to govern it which King Edward had for otherwise the Grant of totum Comitatum had been sufficient M. I confess this is more than I ever heard or considered before concerning this matter but you do not give me any positive proof that at the time when Doomes day Book was made there were any Englishmen who held Earldoms or Baronies or other great Estates of the King or any of his great Men so that what you have said hitherto tho' it carry a great shew of probability yet is no positive proof against the Doctors assertion F. I shall not go about to deny what William of Malmesbury and Henry of Huntington so positively affirm that for sometime before the end of King William's Reign there was no Englishman a Bishop Abbot or Earl in England yet does it not therefore follow that it was thus thorough his whole Reign or if it were so that it will therefore follows that there were few Englishmen who when Domesday Book was made possessed any Lands in England but that in part of King William's Reign there were many English Earls and Barons appears by above a dozen Charters cited by Sir William Dugdale in the Saxon and Latin Tongues in his Monast. Anglic. which are either directed by K. William to all his Earls and Thains or else in Latin Omnibus Baronibus Francigenis Anglis or else Omnibus Baronibus Fidelibus suis Francis Anglis salutem the like Charters also appear of Henry J. and the Empress Maud his Daughter so that if Francigena and Francus signifie a Frenchman and Anglus and Englishman and if Fidelis does as your Dr. would have it signifie a Tenant in Capite then I think nothing is plainer than that there were for great part of King William's Reign both Earls Barons and Tenants in Capite of English Extraction But to come to particular persons it will appear by the Saxon or English names in Doomesday book as also by several recitals therein that there were divers English
our ancient Tenures and manner of holding and enjoying our Lands and Estates as will appear by comparing our Antient Tenures with theirs F. I shall not deny but that a great part of the matter of Fact is true as you have now put it yet tho' I grant that the Bishop Abbots Chancellors Chief Justices and other great Officers of the Crown were all or the greatest part of them Normans during the Reigns of the two first Kings of the Norman Race it doâ—s not therefore follow that these Men must have made a change in the very substance of our Laws tho' in matters of form of pleading or judicial proceedings they might have introduced great alterations for as to the Civil or Municipal Laws of this Kingdom concerning the Descent and Conveyance of Estates they continued the same after the coming in of the Normans and Lands held by Knights Service descended to the Eldest Son and Lands in free Soccage and Gavel-kind to all the Sons alike so likewise there were Estates In tail and Fee simple as now and there were also the like Customs of the Courtesie of England Burrough English c. as there are also at this day as I can prove to you by several passages out of our English Saxon Laws so likewise for Conveyance of Estates those of the better sort of People called Bookland were conveyed by Deeds with Livery and Seisin either with or without warranty as they are now but that which was called Folâ—land held by the meaner sort were only by Livery and Seisin without any Writing And tho' I grant that the custom of sealing of Deeds is derived from the Normans yet that is an alteration only in matter of forn and as for Goods and Money they were bequeathable by a Man's last Will as well after as before your Conquest And if you can have the opportunity to peruse a Manuscript Treatise of Sir Roger Owen's upon this Subject you will find it there sufficiently proved That Livery of Seisin Licenses or Fines for Alienation Daughters to Inherit Trials by Juries Abjurations Utlaries Coroners disposing of Lands by Will Escheats Gaols Writs Wrecks Warranties Felons Goods and many other parts of our Law were here in being long before the time of King William this being so as to the common Law let us see what alterations there were in the Criminal or Crown part of the Law first as to Treason and wilful Murther they were punished with Death in the Saxon times as well as after as were also Robery and Burglary in the night time but as for lesser ofâ—ences such as Batteries Maims Robberies and other breaches of the Peace they were punished by Fine as well before the Conquest as after but as for the Law of Englisherie which was that if a Man were found Murthered it should be presumed he was an Alien or Frenchman and the Town thereupon where the Body was found was to be fined unless Englisherie was proved i. e. that the person was an Englishman this Custom tho' it lasted to the Reign of Edward the Third when it was taken away by a Statute made on purpose tho it may seem a badge of the Norman Conquest yet was it indeed a Law introduced by King Knute in behalf of his Danes who being often found killed and none could tell by whom he obtained this Law to be made to prevent it as you will see at large in Bracton and the Mirrour of Justices But as for trial of all offences it was either by Juries Fire or Water ordinal by Dewel or Battle or else by Witnesses or Compurgators upon Oath as well before as after King William's entrance so that I can find nothing material as to the alterations of the Laws either in matters Criminal or Civil from what they were in the Saxons time and this being so it is easily answered how the Judges and Officers might be Normans and yet the Laws continue English still for first it is certain that for four or five years in the beginning of K. William's Reign he made no great alteration in the Judges and other great Officers of the Kingdom and by that time those whom he was afterwards pleased to imploy in the Rooms of such as either died or were turned out might very well come to understand the Laws of England as far as they distered from those of Normandy which was not in many particulars since as your self very well observed the Saxons and Normans being both Northern People had many of the same Laws and Customs common to both and the same persons might in three or four years time have very well learned English enough to have under stood the Evidence that the Witnesses gave before them without any Interpreter But say you all the Pleadings and Judgments were in French and therefore the Lawyers and Pleaders must be Frenchmen which is likewise a false consequence for Pray tell me why might not the English Lawyers have learnt French enough to Plead in three or four years time which must necessarily be required before so great an alteration could be made or Lawyers enough he brought out of Normandy and sufficiently instructed in our Laws and Customs could be fitted for their employments again supposing all Pleadings and other Proceedings to have been in French it does not follow that this practice could have obtained in all the Courts of England for tho' I grant that in the Kings Court at Westminster where the Judges as you say were for the most part Frenchmen or Normans yet this could only have some effect either in that great Court or Curia Regis where the King often sat in person together with his Chief Justiciary and other Justices or else in the Court of Common Pleas which followed the Kings Court till it was ordained otherwise by Magna Charta or else the Court of Exchequer where in those days only matters concerning the Kings Debts Lands and Revenues were chiefly heard and dispatched but as for the Court of Chancery it was not then used as a Court of Equity nor long after till the Reign of Henry the IV V and VI. when it arose by degrees as you will find in Sir William Dugdale's Origines Iuridiciales So that granting all the proceedings in these Supream Courts to have been in French because the King himself who sat there with the chief Justice and the rest of the Judges were either Normans or Frenchmen yet was this of no great importance in comparison of the Suits and Causes which were first begun and try'd in the Inferiour Courts in the Country before ever they could be brought up to London by Writ of Errour or Appeal which could only be in Causes of great Moment or between the Kings Tenants in Capite So that now to let you see that what say I say is true we will Survey all the inferiour Courâ—s of that time beginning with the lowest and going up to the highest of them The first Court we find of this kind
was that of the free burrough or Tything wherein by the Laws of King Edward the Confessor the Tythingman or Head burrough was the Judge who as that Law tells us determined all suits and differences arising among Neighbours of the same Tything concerning petty Trespasses on one anothers grounds which if they could not be there determined might then be brought before the Court Baron which was incident to every Mannor and wherein the Suitors and not the Lord nor his Steward were the Judges and this as Sir Edward Coke tells us was first instituted for the ease of the Tenants and for the ending of Debts and Damages under Potty Shillings at home as it were at their own doors and let me tell you by the way that sorty Shillings was theo near as much as forty pound is now and if the business could not be ended here or was of too high a nature it was then brought into the Hundred Court where the Hundreder together with the Suitors were Judges and if they had not Justice there they might then remove it into the Court of Trithing or Lathe which was not the smaller Court of the Tithing mentioned nor yet the Court Leet but a particular Court consisting of three or four Hundreds which tho' now quite lost was in being at the time of the Statute of Merton as I shall shew you by and by and if the business could not be decided in the Trithing it was then removed to the Shire or County Court as Mr. Lambert shews in the Laws of King Edward which was then held as now from Month to Month and in which as well as in the Hundred Court the Suitors alone were Judges and tho' it can now only hold Pleas unless it be by Writ of Justices of any Debt or Damage to the value of Forty Shillings or above yet we â—ind from ancient Authors that this Court was so considerable that we have diverse examples of Causes between the greatest Persons of England and for Lands of great value begun and determined in this Court thus Eadmertes relates the great Trial at Pinnesden-heath between Odo Bishop of Bayenâ— half Brother to your Conqueror and by him created Earl of Kent and Lanfrank Archbishop of Canterbury concerning divers Mannors in Kent and other Counties whereof Earl Odo had diseized the See of Canterbury in the time of Arch-bishop Stigand his Predecessor whereupon the Arch-bishop Petitioned the King that Justice might be done him secundem Legem Terrae and the King thereupon sends forth a Writ to summon a County Court the debate lasted three days before the Freemen of the County of Kent in the presence of many Chiefmen Bishops and Lords and others skilful in the Laws and Judgment passed for the Arch-bishop Lanfrank by the Votes of the Freemen Or primorum or proboâ—â—â— hominum as the Historian calls them So that to conclude this head if no suit could be begun in those days but what was first commenced in the Hundred Court no distringas could issue forth till three demands were made in the Hundred and from thence to be removed to the County Court where regularly all civil causes were try'd by the Suitors as the only Judges as well as in the Hundred Court and Court Baron then it will necessarily follow that unless you can prove which I think is impossible that all the English were at that time Slaves and Villains and had no Free-hold of any sort left them that all Pleading and Proceedings in any of those Courts being before meer Englishmen must have been in English and no other Language so that after all this great cry nor a twentieth part of the Suits in England were brought to London And as for Criminal Causes unless in cases of Treason all Murthers and other Felonies were Tryed and Judged in the Country either within the particular Jurisdictions of Bishops Abbots or great Lords or else of such Cities and Towns who had the Priviledges of Infangthief and Outfangthief together with Fossa and Furca that is a Pit to drown and a Gallows to hang Malefactors and if the offence was done in the body of the County they were then tryed and condemned in the County Court Justices Itinerant not being in use till Henry the seconds Reign M I must confess you have given me a great deal of light in these matters more than I had before but as I shall not dispute whether in the lowest Courts such as the Tythings and Court Barons the smaller English Free-holders might not Judge of Petty causes amongst themselves yet that in those greater causes were brought in the Hundred and County Courts which only the greater Fleemen of the Hundred or County were Judges who these Freemen were Dr. B. hath sufficiently taught us in his Commenes upon the Conquerors Laws as also in his Glossary viz. That they were Tenants in Military Service who in those times were the only great Freemen of the Kingdom and quite different from our ordinary Free-holders at this day These were the Men the only legal Men that named and chose Juries and served on Juries themselves both in the County and Hundred Court and dispatched all Country business under the great Officers I do not deny but that there might be other lesser Freemen in those times but what their quality was farther than that their Persons and Blood was Free that is they were not Nativi or Bondmen it will give a knowing man trouble to discover it to us we find in every leaf of Doomesday Socmen liberi homines Possessors of small parcels of Land but what there quality was and of what interest in the Nation Dicat Apollo no Man yet hath made it out nor can it be done by the account we have of ordinary Free-men for a Century or two last past And for further proof of this That none but Tenants in Capite or Military Tenants at least could be Judges in the County Court appears by the Laws of King Henry the first wherein it is expresly said Regis Iudices Barones Comitatus qui liberas in t is terras habent per quos debent causae singulorum alterna prosecutione tractari c. So that these Barons of the County being certainly Feudal Tenants this service of being suitors to the County and Hundred Courts was a service incident to their Tenures and then it will also follow that those Primores and probi Viri who as you have now related tryed this Cause between Earl Odo and Archbishop Lanfranc and who let me tell you were not only of the County of Kent but of other Counties in England where the Mannors and Lands lay as Eadmerus shews us and who were the Jurors in this great Cause consisted of the great Military Tenants that were not Barons and the less which were the Probi Viri for it can be no ways probable that the ordinary Freemen which made the greatest number and were all bound to
and Service to the Hundred and County Courts and that these very men were such as after your Conquest were called Barones Comitatus appears in this that those who before the Conquest were called Thanes are afterwards called Barons of Counties in all our Ancient Laws and Charters and for this I shall give you the Authority of Sir H. Spelman in his Glossary who tho' he does chiefly understand by this word all sort of feudal Barons dwelling in each County Proceres nempe Maneriorum domini yet nor only these but necnon liberi quique Tenentes hoc est fundoâ—um proprietarii Anglice Freeholders ut superius dectum est So that take it in which sense you will this word cannot signifie only Tenants in Capite or so much as Military Tenants as you suppose since a man might hold a Mannor by other Tenures than Knights Service as by grand or petty Serjeanty or in Soccage by a certain Rent and so likewise might he hold any other lesser Estate of Free-hold by the like Tenures which if it were so your Drs. Fancy of Tenants in Military service being then the only Free-men of the Kingdom and who were capable of serving upon Juries in the Hundred and County Court is a meer Chimera without any ground as I have already proved at our third meeting when I shewed you by the words liberi homines so often mentioned in King William's Laws are to be understood not only Tenants by Knights Service but any other Free-men or Free holders who held Lands or other Possessions which may be also proved farther by the Stat. of Merton Cap. 10. as appears by this clause Provisum est insuper quod quilibet liber â—omoqâ—â— sectam debet ad comitatum trithingum hundredum Wapentagium vel ad 〈◊〉 domini sui libere possit facere Attornatum suum ad sectas illas pro eo faciendas Whereby you may see that every Freeman who was a Master of a Family and not under the power of another was then obliged to pay Suit and Service to the County Trithing and Hundred Courts But say you these persons who were Jurors in this great Cause between Earl Odo and Arch-bishop Lanfranc are there called Primores and Probi viri not only of the County of Kent but other Counties where the Lands lay and it is not probable that the ordinary Free-men which made the greatest number and were all bound to their good behaviour could be the Probi Legales homines who served upon this Jury well I grant it that these Gentlemen you speak of might be Lords of Mannors and considerable for Quality and Estate and who alone were impannelled upon Juries in this and other such great tryals of Novel Disseiâ—in and yet for all that those lesser Free-men or Free-holders you mention were Legales homines and as such were capable of trying all Causes of what nature soever since Sir H Spelman tells us in his Glossary Title Legalis that In Iure nostro de eo dicitur qui stat rectus in Curia non exlex seu utlegatus non excommunicatus vel infamis c. sed qui in lege postulat postulâ—tur Hoc sensu vulgare illud in formulis juridicis probi legalis homines So that he does not make as you do that a Man's legality must depend upon his Tenure but upon his being rectus in Curia So that it is no more an Argument that because in some great Tryals in those times none but the chief and most considerable Men in the County were impannelled upon Juries in the County Court therefore none but they could ever serve there upon Juries at all then it would be now for a man to affirm that because in great Tryals at the Assises or at the Bar at Westminster only Knights and Gentlemen are Impannelled therefore none but they and not any Yeomen or Countrymen can ever serve upon Juries at all But let these Gentlemen you mention have been all Tenants in Capite or by Knights Service if you please yet will it not make good your assertion that they were only Normans or Frâ—nchmen who as the only Proprietors of Estates served upon this and other Juries at that time for they must have certainly been such who of their own knowledge knew the Lauds in question and to whom they did belong before K. William's entrance into England and your Dr. himself in his answer to Mr. Atwood's Ianus fully agrees to this truth as appears by this passage which I desire you would read In Tryals of Novel Dissâ—isin and for the Possession of Lands Customs Services c. the Juries at the time of the Conquest and in several of the King's Reigns next succeeding were Impannelled out of the same Town and Neighbourhood of such as did know the Land and things in question and who had been possessed of it and for what time And to this purpose in an Assize if none of the Jurors knew the right it self or truth of the matter and did testifie so much to the Court upon Oath recourse was then had to others until such were found who did know the truth but if some did know the truth and others not those that knew it not were put by and others called into the Court until twelve at the least should be found to agree therein and for this purpose it was that all Suitors to Hundred and Country Courts were bound to appear there under great penalties that thâ—re might be a Jury of such as knew whose the Land was and so far your Dr. is very much in the right but then that all the Gentlemen that served upon this Jury must be Englishmen is as plain from the reason he hath now given us and if he had not told us so we have an undeniable authority for it to wit the antient Mss. called Codex Roffâ—nsis quoted by Mr. Selâ—en in his notes upon Eadmerus where speaking of this Tryal Praecipit Rex Comitatum totum viz. of Kent absque mora considere homines Comitatus omnes Francigenas praeciput Anglos in antiquis legibus consuetudinibus peritos inâ—unum convenire But it also adds alii aliorum Comitatuum homines and so confirms what Eadmerus says so that nothing is more evident by your Doctors own shewing as also by the Testimony of this ancient Author that this great cause was Tryed either by Tenants in Capite and other great Free-holders were all Englishmen or such Frenchmen as were here before your Conquest so that from this famous Tryal we may draw two of three confusions directly contrary to your assertions First That there were many great Proprietors not only in Kent but in other Counties as appears by Eadmerus who were a sufficient number to try Causes in the County Courts a good while after your Conquerors coming over Secondly That the Pleadings and Verdict in this Cause being before Englishmen and given by them must have been all in
things being considered it is no wonder if the Judges and Clerks of Parliament who were in those days entrusted with the drawing up all Acts of Parliament being greater Masters of the French than Latin Tongues chose rather to draw them up in the former and thus it continued until the Reign of Henry the seventh when our Statutes began first to be drawn up and enrolled in English M I confess you have given me a greater light in this matter than I had before yet I suppose you cannot deny that the Tenure of Knights Service with those clogs that belong to it of Wardship Marriage and Relief were all derived from the Normans as appears by the grand customer of Normandy which I have already menâ—ioned so that tho' it be true that all these are now taken away by a late Statute of K. Charles the second yet since this Tenure and those services are not found among the Saxon Laws there cannot be a greater proof of the ancient power of the Conqueror or of the servitude imposed upon the Nation by him and therefore I look upon it as a very imprudent part of the late K. Charles to part with so great a tye which his Father and all his Predecessors had over the Persons and Estates of all the Nobility and Gentry of the Kingdom F. I shall not take upon me to decide whether it were Politickly done or not of K. Charles the second to part with the Wardship and Services of his Tenants by Knights Service but this much is certain that considering the abuses and corruptions that had crept into that Tenure by degrees since the first institution both by the unfit Marriages of the Heirs as also by the waste that was often times commited on the Wards Estate during his Minority it was certainly a very great grievance and burthen to the subject and considering how many of those Wardships were begged by hungry Courtiers they were of no considerable profit to the Crown and tho' I grant they were a very great tye or rather clog upon the Estates of the Nobility and Gentry of this Kingdom yet it did not thereby produce any such love or obedience as would retain the Tenents better in their duty before than since they were granted away for the forfeitures for Treason and Felony and also Fines for Alienations and are reserved to the Grown now as they were before and as for any love or respect which was anciently paid by the Heir how could there be any such thing since the King granted away the custody of the Heir and his Lands to persons who for the most part made a meer prey of them so that they were often Married against their consents and their Estates were delivered to them wasted and spoiled besides also what was exacted from them for reliefs and Ouster lismaines we need not wonder if it were rather a cause of secret discontent and hatred of the Kings Prerogative than otherwise and therefore I cannot think it was not so unpolitickly done by the King to render himself gracious and acceptable to his People upon his return to grant their request and pass that Act for taking away Wards and Liveries and to accept of a Revenue by excise of treble the value in stead of it But to come to the Original of Knights Service it self I do not think it was derived from the Normans since we are certain there were Thane Lands in England which were held of the King and that by Knights Service before King William's coming over and there were also middle Thanes who held of those Lords above them by the like Service insomuch that in the Laws of K. Knutâ— there is one concerning the Heriots which an Earl the Kings Thane as well as inferior Thanes were to pay not only to the King but to other inferiour Lords which are almost the same as were afterwards reserved by the Laws of K. Edward the Confessor confirmed by K. William as you will find them in Ingulph only there is no Gold reserved but only Horses and Arms whereas by the Law of K. Knute each E. was to pay two hundred Manenses of Gold each Kings Thane fifty and each inferiour Thane two pounds only note that he who is called E. in K. Knutes Laws is called a Count in these the Thane a Baron and the inferior Thane a Vauasor and that which is there called a 〈◊〉 is here termed a Relief And that this Tenure by Knights Service which is now called Escuage or Servitium Scuti was of ancient time named expeditio hominum cum scutis and was in use before the coming in of the Danes is also as certain for Sir E. Coke in his fourth Inst. tells us that we may in the Charter of K. Kenulph who Anno Domini 821. granted to the Abbot of Abbindon many Mannors and Lands and reserved quod expeditionem duodecim virorum cum tantis scutis exerceant antiqâ—os pontes arces renovent and also he mentions a like Charter of K. Ethelred to a Knight called Athelâ—eâ— Anno Domini 995 so that you see not only Spiritual Persons and great Thanes or Barons but also Knights held Lands by the service of so many men before your Conqueror and your Dr. also himself allows it for in his answer to Mr. P. in all ancient Charters in the Saxon times he translates the word fidelâ—s by Tenants in Capite or Military Service M. I will not deny that Military Fees were in use before the Conquest and also that the feudal Law did obtain here in many things and therefore I am so far of the Doctors opinion who in his Gossary Tit. Feudal Laws tells us The Feudal Law obtained to most Nations of Europe and in Normandy was in its full Vigor at the time of the coming over of the Conqueror but afterwards grew more mild and qualified as also the Tenure it self a perfect description of which with all its incidents of Homage Relief Ward Marriage Escuage Ayds c. are to be found in the Grand Customer Cap. 29.33 34 35. and although there were Military Fiefs or Fees here in the Saxon times yet not in such manner as after the Conquest established here by William the Conqueror and according to the usage in Normandy when as it appears by Doomesday-book in every County he divided most if not all the Land of England amongst his Normans and Followers Now that this custom of Wardships is wholly derived from the Norman Conquest you shall find in Sir E. Cookes fourth Institutes in the same Chapter you last cited as you may here read You have heard before de regali servitio before the Conquest but that regalâ— servicium which was Knights service drew unto it relief but neither Wardship of the Body or of the Land as hath been said it is true that the Conqueror in respect of that Royal service as a badge of the Conquest took the Wardship of the Land and the Marriage of the
auire homme de People Mes Ed. Roy son fils ordeign que home sueroit vers Roy per Peticion Mos unques Roys ne seront adjugez Si non per euâ— melmes lour Iustices So that if the former part of it â—e Law the latter must be so too and then it will directly contradict what you have quoted before out of Bracton That in the time of Henry the 3d in which he lived there lay no Remedy against the King but only by Petition Whereas this Opinion makes him before the time of Edward the First to have been liable to the same Legal Process with other Men. But notwithstanding this Passage in the Year-Book may very well bear a legal Interpretation only by supplying what is indeed to be understood after the Words non pas les Peers le Commune viz. Sans assent du Roy which as it was then true So I hope it will ever be so But I think I can give you a much better Authority than this Year-Book to prove where the Power of Making and Dispensing with Laws doth truly reside viz. The Solemn Declaration of the King Lords and Commons in the 25th Henry 8. a Prince as Jealous of â—is Prerogative as any of his Predecessors where in the Preamble read these words It standeth therefore with Natural Equity and good Reason that in all and every such Human Laws made within this Realm or induced into this Realm by the said Sufferance Consents and Custom your Royal Majesty and your Lords Spiritual and Temporal and Commons Representing the whole State of your Realm in this your High Court of Parliament have full Power and Authority not only to dispense with those and all other Humane Laws of this your Realm as the Quality of the persons and matter shall require And also the said Laws and every of them to Abrogate Annull Amplifie and Diminish as it shall seem to your Majesty and the Nobles and Commons of your Realm present in your Parliament Meet and Convenient for the Wealth of your Realm c. Whereby you may plainly see that the Power of Making Abrogating and also Dispensing with Laws is by this Act ascribed joyntly to the King and the Two Houses of Parliament But though I do not affirm that they have a Co-ordinate Power with the King in making Laws yet they have a Co-operative Power therein which yet is no more than your Co-operation for what is a Co-operation but a Power of working together and how can three Distinct Bodies work together without each contribute their share to produce the Intended effect M. Perhaps I may have bin too unwary in my expression but pray answer the Authorities I have brought from our Ancient English Saxon Laws Wherein it seems plain to me that the King had then the Sole Legislative Power F. I grant he had a chief share in the Legislative Power but not the Sole Power that is He could make no Laws but in the Great Council and by their Consent And this you might have seen as well as I if you had not slyly past by what made against you and therefore in the first place to begin with your Instance of Offa's giving that Boon to the Roman School I think the Authority you bring for it is very Slight for though I own that Matthew Paris who writes his Life Relates this Donation to have been made at Rome without mentioning any Consent or Confirmation of his Great Council Yet this seems but an imperfect account of the matter and according to the usual way of the Writers of those times who are not so exact in such matters as they should be And therefore though Offa did give or vow these Pence at Rome yet the Gift might receive its force from the Consent of his Great Council after he came home Since all his Laws and the Acts of his Councils are lost unless it be one which Sir H. Spelman hath given us from such Remains as have bin saved out of the Libraries of several Monasteries at their Dissolution And this contains no less than the Consent and Confirmation of his Great Council Assembled at Calcuith Anno 940. for the Foundation and Endowment of the Abby of St. Albans as also that of another Council at Verulam for the Conferring of divers other Lands of his own to that Monastery Now I leave it to any indifferent Man to judge Whether that King who could not bestow his own Demesnes upon the Church without the Consent of the Common-Council of the Kingdom could give away at once the 30th Peny of all his Subjects Estates for ever without their Consents I am sure the Donation of the same sort of Pence by King Edward the Confessor which is now to be found among the Laws of King William the First is said to be granted Communi Confilio Regni and that the Saxon Kings could not bestow their Lands upon Religious Uses See Sir H. Spelmans Councils where Baldred King of Kent is an evident Example who though he had given the Mannour of Mallings in Sussex to Christ-Church in Canterbury Yet because his Principes and Great Men that is his Great Council consented not thereto it was revoked untill King Egbert and his son Ethelwulf did afterwards renew the said Grant with the Consent of a Great Council held at Kingston An. 840. as you may see in the same Volume last cited And I am sure after the Heptarchy when our Kings were more Powerful the same King Ethelwulf could not by his meer Prerogative Grant the Tythes of his Subjects Estates to the Clergy without the Consent of a Great Council of his Bishops and Principal Men held at Winchester An. Gratia 855. and Intituled thus Celebris ilâ— donatio Ethelwulfi Regis decimae manfionis omnium benorum per terram suam Deo Ecclesiae factae confirmaâ—â—â— M. I Grant that perhaps these Kings could not dispose of their own Lands or the Estates of their Subjects without the Consent of their Great Council any more than the Kings of France could formerly yet I hope they were Absolute Monarchs for all that F. I beg your pardon if I have bin somewhat long in answering your Example of King Offa. But I will now shew you that they could no more make Laws than dispose of their own or their Subjects Estates without their Consent and which you your self might easily have seen if you had pleased to have Consulted Sir Henry Spelman as Diligently as you have done Mr. Lambard for there you might have found that about the Year 712. King Ina Assembled a Great Council or Parliament wherein he made Ecclesiastical Laws concerning Marriages c. and did other things ad concordiam publicam promovendam peâ— commune Consilium Assensum Episcoporum Priâ—cipum Procerum Comitum omnium Sapientum Seâ—iorum Popillorum totius Regni So likewise if you will please to look into the Decem-Scripâ—ores you will find how Althesian's
and all along the Authoritative parts are expressed by Statuimus volumus interdicimus probibemus praecipimus So that by these Expressions in his Laws the absolute soveraignty of the Conqueror in the point of Law-giving is manifest I shall content my self with a very few Authorities because the matter is so plain Ordoricus Vitalis saith thus Eamque i. e. England Gulielmus Rex suis Legibus commodò subegit And Eadmâ—r Contemporary with the Conquerour in his History thus Vsus atque leges quas patres sui ipse in Normannia solebâ—nt in Anglia scribere volens Cuncta divina simul humana ejus nutum expectabant From whence you may see that all matters as well Spiritual as Temporal depended upon his sole will And tho we have no particular account of what Laws his Son William Rufus made yet we may presume according to the Testimony of Historians that he was altogether as absolute in those Councils he called as his Father as may be seen in Eadmerus his account of his Transactions with Archbishop Anselm So that it is certain he governed by his own absolute Authority raising what money he pleased upon his Subjects 'T is true that in the Reign of his Successor Henry the First the People found some little relaxation by reason of the Charter he made them containing several mitigations of the severity of the Feudal Laws as also those of Forests yet even these are said to be made by his own single Grant and Authority tho I confess it was granted in a great Council So likewise in Florence of Worcester we find that in 28 th of Hen. I. That King confirmed the Acts of a Synod or Council of the Clergy of the Province of Canterbury and gave his Royal Assent to them As for King Stephen tho he was a Notorious Vsurper and Set up and Crown'd by a Faction of Bishops and some few Temporal Lords and that not long after his Coronation he in a Great Council at Oxford granted to all his Subjects another Charter of divers Priviledges and Freedoms from the former Exactions yet the words of the Charter are in his own name and by his own authority solely as appears by these words Observari praecipio constituo But Richard Prior of Hexham alias Hagulstad in his Chronicle closes his Charter thus Haec omnia concedo confirmo salva Regia justa Dignitate mea From which words it is plain that he never meant to part with any of the just and necessary Prerogatives of his Crown So likewise King Henry the Second in a Great or General Council held at London confirmed the Great Charter granted by King Henry the First his Grand-father but this Charter also runs wholly in the King 's own name without any mention of its being assented to either by the Bishops or Nobles And as for the Constitutions made at the Great Council of Clarendon tho that King made the Archbishops Bishops with all the Clergy as also the Earls Barons and Nobility all swear to observe them yet the Enacting part proceeded only from the King as appears by their very Title thus Assissae Henrici Regis factae apud Clarendon c. And Mat. Paris concludes these Constitutions with Decrevit enim Rex From whence it appears that it was the King alone that decreed and Constituted those Laws I shall not say much of the Great Councils in Richard the First 's time since he did not reign long enough to call many but in that held at Notingham we find that the King diseized Gerard de Canville and others and that the King appointed to be given him two Shillings on every Carucate of Land throughout England c. From whence I shall observe that the words Rex praecepit constiâ—uit c. as they are in this Historian shew that the King then had solely the Authoritative Power of passing all Consultations of these Councils into binding Laws even where money was to be levied on the Subjects and that seisure was to be made of their Estates But to come to the more troublesome and perplext Reign of King Iohn in which there were many Great Councils holden yet I shall instance but in some few of them mentioned in Mat. Paris as that of St. Albans held by Ieffery Fitzpeter and the Bishop of Winchester in this King's Absence where ex parte Regis it was firmly enjoyn'd under penalty of Life and Limb that the Laws of King Henry his Grandfather should be kept by all in his Kingdom From whence we may observe that the Laws had their force only from the King's Authority as appears by this expression ex parte Regis firmiâ—er est praeceptum And when afterwards at Runningmead he was compelled to sign the first Magna Charta I own it was done in a Great Council of Bishops Earls and Barons as well those who stood for him as against him Yet that it proceeded wholly from his own good will is plain from the Charta de Foresta of this King as appears by these words Ad emendationem Regui nostri spontanea bona voluntate nostra dedianus concessimus pro nobis haredibus nostris has libertates subscriptas From all which Charters of Liberties we may conclude that the Petitions of the People were drawn into the form of a Charter and passed under the King's Seal as his meer voluntary free Grants and Concessions without their Votes Suffrages and Authority And sometimes such Rights or Liberties have been bestowed and declared by our Kings by way of answer to the Petitions of the Lords and Commons and that this custom is not yet discontinued appears by the Answer of K. Charles the first to the Petition of Right when no other answer would please the Commons but the King 's expressed Assent to their Petition in these words Sole Droâ—â—t faict comme esâ— dâ—sire But to return to the Reign of Henry the Third F. I beseech you Sir give me leave now to answer what you have already alledged out of our Hiâ—â—oâ—iâ—ns for the Supreme and Absolute Power of our Kings before we proceed further to less obscure times And therefore I must tell you that you have in this long speech of yours made use of all the Artifice of an Advocate for a Party viz. in urging all that can any way make for you and slyly passing over whatsoever may make against you And to begin with your story of King William the First I shall not now dispute whether there were any Englishmen in those Great Councils or whether they consisted only of Tenants in Capite since I shall defer that Question till anon But as for the English you have put upon the French Title of the Laws of this King it is not fairly rendred for in the French it is Apres le Conquest dâ— la â—erre which doth not always signifie a subduing by force but by any other ways of acquisition different
that because the Emperour Theodosius as likewise divers of his Predecessours did Nominate Bishops to Sees therefore they did likewise receive from them all the Authority they had of appearing and acting in General Councils which I am sure you are too good a Church of England Men to affirm M. I must confess I never did so closely examine the Ancient Form of conferring of Bishopricks before the Conquest as I find you have done and I will better Examine your Authorities and if I find this Custom to have been constant and uniform I shall come over to your opinion tho' I doubt it will not prove to have been so general as you would make it since by the Authority you have now brought out of Mat. Paris it appears that it was the King who gave leave to this Election of Bishop Wulstan in the Great Council which I am not yet convinc'd did then take upon them to meddle in Ecclesiastical matters without the Kings Consent but since you have spoken enough concerning the Right and Antiquity of the Bishops sitting in our Great Councils it is time you now speak of the Right of the Peers or Temporal Lords which certainly could have no place there but from the Favour and Concession of our Kings So that whether we consider those Lords in the Saxon time as Rulers of Counties called in old English Earls or Aldermen in Latin Duces or Comites or else as Judges or Counsellors called in old Saxon Wites or Wisemen in Latin Sapientes or lastly as Thanes in Latin Ministri who were either Military Tenants or Civil Ministers or else Officers of the King in his Court or other Employments none of them were Hereditary in those times but all of them either depended upon the King's VVill or else owed their Honours and â—states to his Favour F. I hope notwithstanding the Confidence you put in this part of the Argument that it hath no more weight in it than the former For tho' I grant there was no such thing as Hereditary Earldoms before the coming in of the Normans so that tho both the Earls and Aldermen might have places in the Great Councils ratione officii as the Earl Mareschal of England has at this day and not by Tenure as they did after that time Yet I very much doubt whether they sate there only ratione officii and not as Thanes or by reason of their great Lordships or Estates in Lands but if they sate there as Earls or Aldermâ—n yet might they not be the only Persons that sate in those Councils by that Title For there were besides these Aldermen of Cities and Burrougâ—s who were Elected by those Places and who it is very likely appeared for them as their Representatives in those Councils until by Succession of time those Towns began to send two Burgesses in their stead some Footsteps of which still remain in London where the Aldermen of every Ward are first proposed to be Elected Parliament Men before any other and it is certain that these Aldermen in the most Ancient Cities as London York Lincoln â— are not Elected by any Grant or Charter from the Crown but by an immemoâ—ial Right of Prescription But admitting that these Earls or Aldermen appeared in these Councils by reason of their Offices or Dignities which the King conferred upon them yet doth it not prove that the very Office it self proceeded 〈◊〉 from him since we find the Authority of those chief Men whom 〈◊〉 calls Princes and which Answer these Earls to have been used among the Ancient Germans long before when he tells us in the same Chapter where we cited the rest Iura per Pagâ—â— Viâ—osque Principes reddunt â—enteni Singulis ex plebe Comites Consilium simul auctoritas adsunt Which exactly answers our County and Hundred Courts under the Saxon Kings wherein the Alderman of the County or his Deputy the Sheriff preâ—ided and the Free Men of the County or Hundred were the Iudges of all matters of Fact So that tho the King might appoint these Princes or Governours of Provinces or Counties yet doth it no more follow that they owed their Being and Place in the great Council wholy to his Will than as I said before supposing that the King had Anciently the Nomâ—nation of all the Bishops and Abbots in England that therefore they must also owe their Place in our great Councils or Synods wholy to them since the King performed both of them as a Publick Trust committed to him by the Common Weal in the one case as much as in the other But indeed I think the greatest part of the Members of this Assembly besides Aldermen and Burgesses for Cities and Towns consisted of those Thanes whose Names are often found in the Subscription of the Anâ—ient Charters of our Saxon Kings after the Principes Duces and Comâ—â—â—s and that tho many of them might be the Kings Feudal Thanes or 〈◊〉 Grand Serjeanty or Knights Sâ—rvice in Chief as Mr. Sâ—lden tells us in his Titles of Honour yet that Author no where excludes the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. middle or less Thanes from having Voices in those Assemblies who were afterward Stiled Vavissours or Lords of Townships afterwards called Maunors with Courts annexed to them under the Names of Sac Soc which were the same with our Court 〈◊〉 and Court-Baron Especially if you please farther to consider what a vast nâ—mber of Alâ—dariâ— or Free Tenants there were then who held their Lands Discharged of all Services but the Common Burthens and Taxes of the Nation none but the Lands of the Kings Thanes being held by Military Sâ—rvices before the Entrance of the Normans So that whoever will but consider the Nature of our Saxon Councils will find that the Greatest part of the Persons that appeared there did not owe their 〈◊〉 to their being the King's Ministers or Officers as you suppose but to their holding such Lands and Possâ—ssions as Capacitated them and gave them a Right to have places in those Great Councils And that this was 〈◊〉 we need go no further than the Laws of King Athelâ—â—an where you will find Gâ—mility it self annexed to an Estate in Land For if you will but be pleased to Consult King Athelston's Laws you will there find that if a Villaâ—aus or Câ—eorl could so thrive as to get an Estate of five Hides in Lands he was reckon'd a Thane i. e. a Gentleman or Nobleman as they were promiscuoully reckoned at that time So that tho I suppose there might not be in those times that exact distinction between Peers and Commons as there hath bin established since the coming in of the Normans Yet was it the same thing in effect since the Bishops Earls or Aldermen of Shires tho not enjoyed as Hereditary Honours might make then the Greater Nobility or Peers as the Thanes were the Less Nobility Gentlemen or Freeholders who all appearing in person might together with
believe that the Ancient and Potent Cities of London Tâ—â— Câ—nterbury Lincoln c. Should ever be excluded from having any hand in the Great Consultation of giving Money and making Laws and for the publick defence of the Kingdom in the Saxon times any more than they are now And therefore we find that in all the Kingdom of the German or Gothick original the chief Cities and Towns have still sent Deputies to the Diets or Assemblies of Estates as I said but now In the next place tho I do not positively assert that there were Knights of Shires before the Conquest yet am I not convinced that there were none For tho I confess the Treatise you mention appears to have been written since the coming in of the Normans yet might the Substance of it have been much older than the times of Edw III. and Rich. II. or else certainly King Hen. IV. or his Chancellor for him would never have been at the trouble of transmitting a Copy of this said Modus into Ireland under the Great Seal which is thought to incroach so much on the Prerogative had he not been very well informed of the Antiquity as well as Authority thereof And therefore it might very well be written about the Time of Hen. III. from some Ancient Historians and Records not now extant tho the Copies we have of it may be of no longer standing than the time Mr Selden mentions But admitting that there were no Knights of Shires before the Conquest and tho the Thanes who I suppose made the greatest Figure in the Wittena Geâ—â—â—er were not Earls or chief Thanes that is of the Greater Nobility yet they were great Freeholders and tho Commoners yet Gentlemen and of the Lesser Nobility in the same sense as Gentlemen or Knights of Shires are now And the not elected by the Countries yet might be as well esteemed their Representatives as they are now of Freeholders under 40 s. per Annum Lease-holders and Copy-holders for years who have no Votes at the Election of Parliament men whereas these Thanes were then the chief if not the only Possessors of all the Freehold Estates in the Kingdom Nor is it any material Objection to say that these Thanes might at first owe those Estates to the Grant of the First Saxon Kings and might also after a sort hold their Estates of them as Heads of the Commonwealth by such Services as were setled by Publick Laws yet does it not therefore follow that they owed their very right of coming to the Great Council wholly to the Kings Favour For in the first place it is to be considered that tho the First Saxon Kings conquered this Island from the Brittains yet those that assisted them being only Voluntiers the chief Officers or Commanders of them might not only deserve but also capitulate for their Shares in the Land so conquered And these being given out by the King according to each mans quality condition or desert might constitute those who were called the King's Thanes as those who held likewise under them were the Middle Thanes or Vavassors Supposing till you can prove the contrary that these had Places in the Great Council as well as the other and you might as well argue that they could have no Places there but by the favour of their Lords Whereas I have already proved that an Estate of Five Hides in Land of whomsoever holden made a Thane or Nobleman of the Inferior Rank And we find by the same Laws of King Athelstan his Weregild or Price of his Head was valued but equal with that of a Mass Thanes or Priest viz. at 2000 Thrymsas So that a sufficient Estate in Land did not only make a man a Gentleman but also give him a place in the Great Council And there were besides all these several Alodoril who held their Lands discharged from all Services and could sell or dispose of them without the consent of the King or any other inferior Lord and are those mentioned in Domes-day Book qui potuit ire cum terra que â—â—but Nor is your Argument conclusive That because in those times as well as now all Lands were held either mediately or immediately of the King and were chargeable with those three general Services you mention for the publick safety and good of the Kingdom that therefore not only all mens civil properties but also their right of coming to the Great Councils must wholly depend upon the King's will Since I have already proved that the first Saxon Kings by their conquest of the Kingdom could not acquire the sole property of all the Lands thereof to themselves tho they might be made use of as publick Trustees to distribute them according to those mens qualities and deserts who had helped them in the Conquest So that when they were once possessed of such Estates they had immediately thereupon a right to a place in the Great Council the burthen of the Government lying chiefly on such as had Estates in Land And that many others besides the Kings Thanes or Great Lords had places in the Great Council of those times appears as well by the name of Mycel Synods â—â— Wittena-Gemots which are rendred by our Ancient Glossarists Numerosa or Popuâ—â—sa Conventio as also the Titles and Conclusions to divers of the Titles of those Great Councils in the Saxon Times where are often mentioned after the Comites Proceres Terrae aliorum fidelium infinita multitudo which must certainly take in many more than the Kings Thanes Judges or other of his Great Men who were then but a few in comparison of all the rest of the Freeholders of England M. I will not longer dispute the probability of what you say all the difficulty lies in the proof of the matter of Fact For in the first place I deny that any other of a less Degree than the King's Thanes of chief Tenents had any Places or Voices in the old English Councils Nor can you find as you your self are forced to confess in our Saxon Laws or Ancient Historians of those times any Representatives of the common people mentioned such as are now much less Citizens or Burgesses for any City or Burrough in England And therefore what you say concerning the Riches or Power of the Cities and Towns before the Conquest tho perhaps it might be true yet doth it not therefore follow that they must then send their Representatives to the Great Councils Nor is it any Argument to prove that they did because great Cities and Towns do or did lately send Deputies to the like Assemblies in other Countries since our Government might not only originally differ in that from theirs but that also the sending of those Deputies might be granted by some later Princes long since the time of the first beginning of those Kingdoms and I do believe will prove so if closely look'd into And in Denmark which you know was an Elective Kingdom the Cities and great Towns never sent any
Soccage must needs have been so numerous that what Room nay what Field or Place was able to contain so great a Multitude Or how could any business have been transacted therein without the greatest confusion imaginable F. So then you your self must also grant that when all your Greater and Less Barons or Tenents in capite appeared in Person Parliaments were much more numerous than they are now since according to the Dr.'s Catalogue out of Dooms-Day-Book in his Appendix to the English History Vol. 1. of all the Tenants in capite or Serjeanty that held all the Lands in every County of King William they did besides the Bishops Abbots Earls and Barons altogether amount to about 700. and these in the 49th of Hen. III. by forfeiture and new Conveyances from the Crown or by those other ways you have now mentioned might be multiplied into twice as many more and those also of sufficient Estates to maintain the Port of a Member of Parliament or Knight Since 15 Pounds a year was in the Reign of King Iohn and Henry III. reckoned as a Knight's Fee and he that had it was liable to be Knighted And if so I pray according to your own Hypothesis how could so great an Assembly be managed as of about 3000 or 4000 Persons without strange confusion and disorder but upon our Principles there will follow no more Absurdities or Inconveniencies than in yours for either these Barons of Counties Burgesses and Inhabitants of Towns and Cities were always represented by Knights and Citizens as they are now or else these Barons of Counties appearing for themselves were Lords of Mannors or Freeholders of good Estates who were not so numerous or inconsiderable as you imagine the Freehold Lands in England being in those days but in a few hands in comparison to what they are now And for this Opinion I have Sir H. Spelman of my side who in the place already quoted under Barones Câ—â—itatus expresly tells us Hoc nomine contineri videtur antiquis paginis omnis 〈◊〉 â—eodalium specier in uno quovis Comitara degentium Proceres nempè 〈◊〉 Domini nèc non liberè quique Tenentes hoc est fundorum proprietarii Anglicè Freeholders ut Superiù◠dictum est Normidum autem est hoc liberè Tenentes nec tam â—iles 〈◊〉 fuisse nèc tam Vulgares ut hodiè deprehonduntur nam villas Dominia in 〈◊〉 Hareditates non dum distrahebant Nobiles sed ut vidimus in Hibernia penes se retinentes agros per precarios excolebant adscriptitios So that you see Sir H. Spelman then believed that the Mannors and Great Freehold in England were not then parcell'd out into so many small Shares as you imagine and that such Inferior Barons whether they held in caâ—â—â—e or not were also called Proceres see the Laws of Henry I. Chap. 25. the Title whereof is de Privilegits Procerum Angliae The law runs thus Si exurgat placitum inter homines allcusus Baronum foenam habentium tractâ—tur placitum in Curia Domini sui Now that this Socha was no more than Soc. in old Saxon see Spel. Gloss. Tit. Soc. i. e. secta de hominibus in curia Domini secundum consuetudinem so likewise in Titulo Socha vel dicitur Soc. a Saxon socâ— i. e libertas Franchesia vide manerium qd dicitur etiam Soca dictum est From all which we may observe that these Lords of Mannors here called Proceres Barones had Court Barons which took their Name from their Lords tho Feudatory Tenents or Vavaâ—ours But granting that about the end of King Iohn or beginning of the Reign of Hen. III. Supposing that these Lords of Mannors and Great Freeholders whether Tenents In capite or others might amount in all to 5 on 6000 persons I do not see why such an Assembly might not be as orderly and well managed as one of 1000. or 4000. supposing your Greater Barons and Less Tenants in capite to have than made about that number especially if we consider that most business or Acts of any consequence and for which Parliaments were called might be prepared and drawn up by the King and his Council before they met So that take it which way you will fewer Inconveniences and Improbabilities attend my Hypothesis than yours M. That the Earls and Greater Barons both Spiritual and Temporal together with the Tenants in capite then made the Body of the Baronage of England I have very good Authority on my side but that any Feudatory Barons or Tenants of a Lesser Degree ever had any Places or Votes in those Assemblies I think you can give me no sufficient Authority for it 'T is true Mr. P. in his Treatise of the Rights of the Commons asserted gives us two Modern Quotations the one out of Mr. Câ—â—den's Britannia the other out of Mr. Selden to prove it As for the former it is in the Introduction to the Britannia first published in Quarto The Words are these Verum Baro ex illis non imbus videatur qua tempus paulatim moliara molliora reddidit nam longo post tempore non Milites sed qui liberi erant Domini Thani Saxombus dicebantur Barones vocari caperunt nec dum magni honoris erat paulo autem postea meaning after the Normans entrance eò honoris pervenit ut nomine Baronagii Angliae omnes qâ—â—dammodo Regni ordines continerentur But he doth not tell us that this Learned Author in his last Edition of this Work in Folio being sensible of his mistake hath added the Word Superiores before Ordines whereby it is plain he now restrains it only to the Earls and Barons as they are now understood Mr. P's other Quotation is out of Mr. Selden's Notes upon Raâ—â—â—rus where commenting on the Word Barones he saith Vocabulum nempe alio notione usurpari quam vulgo neque eos duntaxat ut hodie significare quibus peculiaris ordinum Comitiis locus est but then conceals this that follows which makes directly against him Sed universos qui Regiae munificentiae ad formulam Iuris nostre Clientelaris quod nullius Villae Regiae glebam sed ipsum tantum modo Regem spectat Tenure en Chief Phrasi forensi dicimus sive Tenura in capite lati fundiâ— pessidebant whereby you may see that he expresly restrains this Word Barones to Tenents in capite only tho your Author takes no notice of it Nor indeed in his Title of Honour doth Mr. Selden give us any other Description of a Baron I mean such who had a Vote in Parliament but such in the Sense that is taken in Henry I. his Charter as it is recited in Matt. Paris Siquis Baronum meorum Comitum vel aliorm qui de me tenent mortuus fuerit i. e. One who was either one of the Earls or Greater Barons or otherwise held in capite F. Mr. P. is not at all to be blamed as you make him
Charter in the same words as they are in the Charter it self only before Dederunt there is also added the word Concesserunt which shews that the Author of this part of those Annals who might very well write at the same time or presently after the Charter was granted by his Paraphrase of Concesserunt seemed to intend to prevent any such mistake in the the signification of the word Dederunt And that this was the constant opinion of all Historians and Antiquaries to this day I will shew you from Henry de Knighton who lived within 100 Years after this Charter was granted in his History hath this passage in this Yera viz. 9. of Hen. III. Post haec Rex Henricus concessit Magnatibus terrae duas Chartos unam de Foresta aliam de Libertatibus ob quam causam Communes Regni concesserunt 15. partem mobilium in mobilium From whence it appears plainly that at the time when this Author writ it was generally believed that the Commons called Milites Libri Tenentes in this Charter granted this 15th of all their Goods I shall conclude with a modern Authority of a Person who you will own to be a Man of great Judgment and Learning viz. Sir Henry Spelman who in his Discourse of Magna Charta inserted in his Glossary hath this remarkable passage Demum Anno. 9. Regis Henrici concedente Clero Populo cum Magnatibus Qâ—intodeceimam partem omnium rerummobilium totius Regni Angliae renovantur Chartae Lib rtatum prout sub Rege Iohanne prius erunt conditae where it is plain that by Populus he meant the Commons as distinct from the Lords and Clergy As for what you say further whereby you would set up the Authority of Mat. Paris against the express â—ords of the Charter it self I suppose you or the Dr. from whom you borrowed this Nâ—tion are the first who interpret ancient Statutes and Records according to the general Words of Historians Whereas I always thought till now that the sense of Historians ought to have been understood by Records and not vice versa since the former differ one from another in their manner of expression of the constituent parts of our great Councils or Parliaments and for brevity sake express themselves in as few words as they can But notwithstanding the Conciseness of those expressions which we find in Mat. Paris and other ancient Authors yet I think even in this place now cited there are words enough to prove there were other Lay Persons at this Council besides Earls and Barons there mentioned or else what is the meaning of these words Aliis Uâ—iversis immediately after Baronibus to whom Hubert de â—urgh proposed the Kings Demands and who also gave their answer to them And if these Gentlemen were not Barons as certainly they were not or else to what purpose was this distinction made then they were meet Commoners and so we find that there were Commons in Parliament from the Authority of Mat. Paris before the 49. Hen. III. which is likewise proved by the Statute of Mertoâ— which I have lately cited in the conclusion of its Preface runs thus Ita provijum fuiâ— concâ—ssum tâ—m à predictis Archi-piscopis Episcopis Comiâ—ibus Baronibus quam ab ipso Rege Aliis Now pray tell me who these Alii were if not the Commons for you did not answer this Question when I last mentioned this Statute M. I shall tell you my thoughts of these Alii by and by when I come to these words omnes de Regno but in the mean time give me leave to give you the Drs. Interpretation of this word Milites put here after Barones which Milites were not Knights of Shires as you suppose but Tenants in Capiâ—e by Military Service as appears by the Assize or Statute of Richard the I. quoted by R. Hovelen in his History which is said to have been made per Assensum Consilium Archiepiscoporum Episcoporum Abbarum Câ—miutum Baronum Militum Now these Milites were often stiled Barons and the Barons Milites Nam Miles saith Sir Henry Spellmaâ— quem Baronem vocibant non à Militari Cingulo quo Equite crebantur sed a Militari â—edo quo alias possessor liberè Teneus num upatus est nomen sumpsit that is such as had Lands given them for or such as held Lands by Military Service and did Homage and Fealty to those of whom they held their Lands and in this sense Mat. Paris calls all the Temporal Nobility Milites when in the Parliament 37. of Hen. III. he says a Militibus Concessum est Scutagium illo Anno. ad Scutum tres Marcâ—t F. I think your Interpretation of the word Milites iâ— forced and quite contrary to the true meaning of this Charter now pray shew me the consequence that because the Barons were anciently stiled Milites that therefore your Tenants in Capiâ—e were then stiled Barones too which is not true and quite contrary to this Charter it self where these Milites whoever they were are put after the Barones as a distinct Order of Men from them whereas if the terms had been then reciprocal the words Baronâ—s or Milites chuâ—e which you please would have comprehended both but indeed this Title of Miles was then of a much larger signification and took in all Knights of whatsoever Tenancy whether by Military Service or Socage as appears by those Writs of the 25 th and 26 th of Henry the Third which I have already cited whereby those that held Estates sufficient to maintain themselves de Tenemento â—o tam militari quam Socâ—gi were a like Summoned in to take the Order of Knighthood and when Knighted were certainly as good Milites as the best of your Tenants in Capitâ— and so might very well be reckon'd amongst the Milites in this Charter But pray tell me what say you to these following words Liberi Tenentâ—s omnâ—s de Regno M. These likewise bear a like Interpretation for by these libere Tenentes that immediately follow in this Chaâ—ter after Milites I suppose were meaâ—t no other than the lesser Tenants in Capiâ—e who having scanty Knights Fees or part of Knights Fees desired not Knighthood or had compounded or fined for it that they might not be made Knights and who not being actual Knights are here called Free Tenants or Freeholders as I have already told you at our last meeting F. Pray give me leave to answer this Interpretation of the word liberi Tenentes before we proceed farther You may remember that I have answered all your Authorities whereby you would prove that the Tenants in Capiâ—e were at this time the only proper Freeholders of the Kingdom which is false since I then proved to you from Sir Henry Spelman's Glossary that any Freeman having an Estate of Inheritance was as much Libere Tenens a Freeholder as the best Tenant in Capite in England
Writ to the Sheriffs of Counties to Summon two Knights de Legalioribus Discretoribus singulorum Comitatuum â— though it doth not appear by the Writ whether the Sheriffs of the Counties were to Elect and send these Knights the Sheriffs being then of the Faction and made by them for 't is there said only quod venire faciarâ— There are also other Writs recited to have been directed to all the great Cities and Towns of England as also to the Cinque Ports to send two of the most Legal and Discreet of each of the said Cities Burroughs Towns and Cinque Ports to the said Parliament at Westminster at the time aforesaid So that without the History of this Niâ—k of time these Writs which are said to be for the Delivery of the Prince out of Prison and for the settling of tranquility and Peace in the Nation cannot be understood But Prince Edward's Release could not be agreed upon in this Parliament whatever other Business might be dispatched So that things still remained in this uncertain condition the King being all this time a meer Shadow until such time as Simon Montfort and Gilbert de Clare Earl of Glocester falling out the latter at last took up Arms and joyning with the Earles of Surry and Pembroke to whom also came Prince Edward after he had made his Escape from Hereford they altogether raised considerable Forces against Monfort who meeting them and joyning Battle near Evesham Monfort with one of his Sons and many other Lords and Knights were Slain and all his Party routed Now pray tell me if this is not a very clear account from the History of the matter of Fact why the Commons were first called to Parliament by Monfort during his Rebellion and I think I can also give you very good reasons and Authorities to back them why they were again discontinued all the rest of this Kings Reign untill the 18th of Edward I. F. I shall tell you my opinion of your Narrative by and by but in the mean time pray satisfie me in one or two Questions pray Sir what may be the reason that we can find but twenty three Earls and Barons Summoned of that great number there was then and only to thirteen Bishops in this Parliament and yet at the same time there should be summoned above an hundred Abbots and Priors and but five Deans of Cathedral Churches pray why might not these numerous Barons be trusted as well as all the Abbots and Priors M. As for his not Summoning all the the Earls Barons and Tenants in Capite but putting Knights of Shires and Burgesses in their rooms there may be a very good reason given for it viz. the danger that Simon Monford and his Privado's apprehended from the too great Concourse of the Nobility and their great Retinueâ— and the Example of his own and the Barons Practices at Oxford in the Parliament of 42 d. of Henry the Third might be the cause why they altered the ancient Usage and of their sending Writs out commanding the Sheriffs of each County as also the Cities and Burghs to send two Knights Citizens and Burgesses respectively But the Reason why there was so many Abbots and Priors Summoned was because Simon Monfort thought himself sure of them He was a great Zealot and a Godly Man in those times and a great Minion of these Religious men as then called as also of the Bishops and Clergy and they were at least seemingly Great Favourites of his F. I must confess there is some colour of Reason why Simon Monfort should Summon so many Abbots and Priors to this Parliament if he were sure of all their Votes before hand but there is no certainty of this for if he had been so sure of them there was as much reason why he should have called them all likewise to the Parliament at London which you say he Summoned the year before when with the Consents of the Bishops Barons and others he made the new Ordinances you mention but you cannot find in any Historian or Record that he then Summoned so many of them and it seems pretty strange that all these Abbots and Priors and Deans not a fourth part of which were Tenants in Capite should all take the trouble to come to this Parliament without any scruple if neither they nor their Predecessors had ever been Summoned before But the other reason you give why so many Earls and Barons should be omitted is much more unlikely for if the numerous Barons Factious Practices at Oxford had before frustrated Monfort's designs there had been indeed some reason why he should have done all he could to have hindered their coming again whereas on the contrary the Earls and Barons at the Parliament at Oxford though they came thither with Arms and great Retinues yet it was only to joyn with him and to force the King to agree to the Oxford Provisions But if the Commons were now Summon'd as you suppose to curb the extravagant Power of the Lords yet it could not be his Interest or indeed in his Power so to do not the latter because the Earls Barons and Tenants in Capite were too powerful and numerous a body to have suffered such an affront and breach on their Right as this was Nor could he and his two and twenty Companions have ever dared to have displeased so great and powerful a body of men as you must allow your great Barons and Tenants in Capite both great and small then were and who made such a powerful opposition for their Liberties in King Iohn's time or that they would have thus tamely permitted men wholly of the Sheriffs choice to have thus taken away their places in Parliament and made Laws for them much less the Citizens and Burgesses most of whom were certainly not Noble by Birth nor yet held Lands in Capite nor could it be for Monfort's Interest so to do for the greatest part of the Earls and Barons were of his side already and thus to â—â—clude them had been the only way to disoblige them and make them leave him and go over to the King's side So that I must needs tell you upon the whole matter granting Monfort to have been such a Knave and Hypocrite as you make him yet certainly he was no Fool but a great Politician and I leave it to your self or any indifferent person to judge whether it was possible for him to do so silly and unpolitick a thing as this For granting all the Abbots and Priors to have been of his side as you suppose they could no way counterballance the great Power of those Earls and Barons and numerous Tenants in Capite that were all hereby excluded So that let the Commons have been Summoned when you will it was certainly before this 49 â—h of Henry the Third or not at all But to give you my opinion why so few Earls and Barons are mentioned in this Record of the 49 of Hen. 3 d to have been Summon'd
are the Bishops the Nobility and Civitatum delegati the Deputies or Commissioners of Towns and Cities For Sweden it comes near the Government and forms of Danemark and hath the same Estates and degrees of People as amongst the Danes that is to say Proceres Nobiles the greater and the less Nobility Episcopi Ecclesiastici the Bishops and inferiour Clergy Civitates Vniversitates the Cities and Towns Corporate for so I think he means by Vniversitates as Tâ—uanus mustereth them To which we may also add tho here omitted by this Author the Delegates of the Rusticks or Husbandmen who make a fourth Estate in the Assembly of Estates of this Kingdom And in this Realm the Bishops and Clergy enjoy the place and priviledges of the third Estate notwithstanding the Alteration of Religion to this very day the Bishops in their own Persons and a certain number of the Clergy out of every Sochen a Division like our Rural Deanries in the name of the rest having a necessary Vote in all their Parliaments And this Swedish great Council is the more remarkable because it comes very near our Constitution in England in which I proved the Inferior Clergy and the Commons not excepting the meanest Freeholders anciently had their Representatives So that it had been the strangest thing that could have been observed in all the Political Constitutioâ—s on this side of Europe if that of England tho descended from the same Gothick Original and founded according to the same model should have had no Representatives for the Commons or Plebians in their great Councils or Parliaments The Dr. here concludes with Scotland and England the former of which since you agree to have had from all times Citizens and Burgesses in their great Councils or Parliaments I need not repeat what is there since it is no more than what you your self have granted and as for England he owns as appears by the Passages I have already cited out of this Chapter that the Clergy Nobility and People were called to a Parliament held under Henry the ad at Clerkâ—nwell M I will not deny but there were Representatives of the Cities and great Towns in the great Councils or Assembly of Estates of all those Kingdoms you have now mention'd out of Dr. Heylins Treatise yet whether they were there from the very first Institution of those Governments is much to be doubted But since I have not now leasure to inquire into the Original of all these Kingdoms nor at what time each State began to come to these great Councils give me leave in the mean time to remark that all these Kingdoms except Sweden came nearer to that Constitution which we suppose to have been anciently in England and Scotland and also other Kingdoms where feudatory Tenures were observed and consequently none but the Chief Lords or Barons by Knights Service and that held of the King so that all those Foreign Councils or Dyeâ—s c. at first were all the same as consisting of Emperours or Kings with their Earls and Barons Bishops and great Officers as is evident from all the old German and French Authors and since Cities sent Deputies in Germany and Italy they were only from Imperial Cities the like I believe would be found in France and those other Kingdoms you have now mentioned but you cannot shew me unless in Sweden any Representatives elected by the Common People or Rusticks distinct from the Nobility and Gentry like our Knights of Shires in England So that I still doubt whether all the Representatives of the great Lords and other Nobility that appeared in the Councils of these Kingdoms were not all Tenants in Capite and no other F. That this is a meer surmise of yours I think I can easily prove for in the first place as for the Bishops Abbots and Clergy who still made the first Estates in all these Kingdoms nothing is more certain than that they never any of them held of the King by Knights Service and therefore could not 〈◊〉 in their great Councils by that Tenure that Institution being for ought as I know peculiar to England and introduced by your Conqueror as you your self acknowledge and as for the Temporal Nobility you will find that in France not onely those Noblemen that held of the King by Military Service but those who held in libero Alodio without any such Service at all had places either by themselves or their Deputies in the Assembly of the Estates so likewise for the Cities and Towns that sent Deputies to it I believe you will not find that any of them held of the King in Capite and to come to Germany you are likewise as much mistaken in fancying that all the Imperial Cities were Subject immediately to the Emperor before they became so for Hamburgh and Lubec were Subject to their own Princes the former to the Duke of Holstein and Sleswic and the latter to Earls of its own till at last they either purchased their Liberties they enioy from their Princes or else cast them off and were after received into the Body of the Diet by the Bulls or Charters of several Emperors and so likewise Brunswick was always a fâ—â—e City till it was united to the Empire by its own Consent I could shew you the like of several other Cities now called Imperial who held anciently not of the Emperour but either of their own Earls or Bishops tho I grant it was the Charters of the Emperor with the Consent of the Dyet that gave them a place in those Assemblies and tho it is true that in all the rest of these Kingdoms the meer Rusticks or Paisants have no Representatives in their great Councils yet this makes no Alteration in the Case if you please to consider it for the Nobility and Gentry are the only true and proper owners of the Lands of those Kingdoms all the Rusticks or Paisants being meer Vassals and in France almost Slaves to their Nobility and Gentry who as I have already said had all alike Votes in their Assembly of Estates as well those who held of the King in Chief by Knights Service as those that did not whereas it was always far otherwise in England where the meanest Freeholder was always as free as to his Person and Estate as the greatest Lord of whom he held and hence it is that we have had from all Times those of the degree of Yeomen so peculiar to England as Fortiscut in his Treatise de Laudibus Legum Angliae takes notice who if they lived on their own Lands had no more dependance on the Noblemen and Gentlemen than they have now and therefore it was but Reason that these should have their Representatives in Parliament as well as the Inhabitants of the Cities and Burroughs who had most of them a far less share in the Riches and real Estates of the Kingdom Secondly Pray take notice that in the rest of the Kingdoms of Europe except
there is no other means left but to resist it if they are able M. I can give you very good reasons to satisfie you why tho' I grant private Subjects may judge of the Legality or Illegality of the King's Commissions and also refuse to obey His Illegal Commands and also that all publick Officers ought to take care at their peril how they act by or execute such Illegal Commissions yet that it does not therefore follow that such illegal Commissions or Orders though executed upon the whole body of the People may be resisted by them for all limitation of the Royal Power being only voluntary and proceeding from the meer grace and favour of our Kings they are not compellable by force or resistable if they should impose their own Proclamations or Edicts upon us instead of Laws For tho' I grant that the King hath no Just or Legal Authority to act against Law and that if he knowingly put any Subject to death contrary to Law he is a Murderer and no Prince can have any such Prerogative as to commit open downright murders either in his own person or by those who act by Commission from him but what follows from hence That they may resist or oppose them if they do This I absolutely deny because God and the Law have Commanded us not to resist and I see no inconsistency between those two Propositions That a King hath no Authority to act against Law and yet that neither He nor those commissioned by Him though acting against Law may be resisted Both the Law of God and the Laws of our Countrey suppose these two to be very consistent For notwithstanding the possibility that Princes may thus abuse their Power and transgress the Laws whereby they ought to govern yet they also command Subjects in no case to resist and it is not sufficient to justifie Resistance if Princes do what they have no just Authority to do unless we have also a just Authority to resist he who exceeds the just bounds of this Authory is lyable to be called to an account for it but he is accountable only to those who have a Superior Authority to call him to an account No Power whatsoever is accountable to an Inferior for this is a contradiction to the very Notion of Power and destructive of all Order and Civil Government Inferior Magistrates are on all hands acknowledged to be lyable to give an account of the abuse of their Power but to whom must they give an account Not to their Inferiors not to the People whom they are to Govern but to Superior Magistrates or to the Soveraign Prince who Governs all Thus the Soveraign Prince may exceed his Authority and is accountable for it to a Superior Power But because he hath no Superior Power on Earth he cannot be resisted by his own Subjects but must be reserved to the Judgment of God who alone is the King of Kings F. In the first place I deny and I have sufficiently proved the contrary that all Limitation of Royal Power proceeded at first from the meer grace and favour of our Kings since the Crown of England has been from its first Institution Limitted by Laws and the People have likewise always enjoyed a property in their Lives Liberties and Estates by the same Laws Tho' I grant you and I are thus far agreed That the King hath no Just and and Legal Authority to act against Law and that if he put any man to Death or take away his Estate contrary to it it is Murder and Robbery And likewise that the Subjects may be capable of Judging concerning such illegal Commands but you will not allow that if such a Limitted Monarch should send his Mercenary Forces to take away our Estates or to Dragoon us till we will own our selves of his Religion that those Instruments of his Tyranny may be resisted or that I have brought any reason for it Whereas if you had but attended better to my discourse at our 3d and 4th Meetings you might have remembred that I plainly enough proved to you that God hath not given Princes nor those Commissioned by them any Authority to Murder or enslave their Subjects and your self then granted That every Man hath power to defend his Life against him who hath no Authority to take it away which holds more strongly in our Constitution where if the King give a Man a Commission to act contrary to the Law of the Land it is altogether void and the People may as well justifie their Resistance of those Officers or Souldiers who should come to Dragoon or persecute them for professing the Religion Established by Law as if he had sent them downright to cut their Throats and this being their Right by the Laws of God and Nature whether God hath taken away this Right by any express Precept in the holy Scripture I also examined at those Meetings but whether any Municipal Law of the Land hath restrained us from it I have also now considered and proved it contrary to the true intent and meaning of these Acts concerning the Militia And therefore to say that it is not sufficient to justifie Resistance if Princes do or command what they have no Legal Authority for unless we can also shew an Authority to resist is a mistake if by Authority you mean an express Civil Law for it because such Resistance in absolute Monarchies is justifiable by that which is Prior to all Civil Laws the Right of Self-defence or Preservation And so likewise in Limited Kingdoms there is the same necessity of Defensive Arms upon a general Breach or Violation of any Fundamental Constitution of the Government since it cannot be kept or maintained without such Resistance be allowed So that if the King hath no Authority to act contrary to Law he cannot sure delegate that to others which he had not in himself and consequently such Commissions to Persecute or Murder Men contrary to Law being in themselves void the persons that Execute them being no Officers may be justly resisted and the Resistance of such an Illegal Act doth not at all derogate from his Soveraignty as King since as I told you before that is limited only to the performance of Legal Acts and extends not to Illegal Orders or Commands and as for the rest of the Reasons you give against this Resistance viz. because he who exceeds the just bounds of his Authority is liable to be called to an account for it only by those who have a Superiour Authority to do it Whereas no Power whatsoever is accountable to an Inferiour You do but impose upon me and your self the same Fallacy which you have so often made use of in making being accountable all one with irresistible which are vastly different and therefore your Conclusion is as false that because the Soveraign Prince may exceed his Authority and is only accountable for it to God that therefore he cannot be resisted by his own Subjects for he may
appears by the Title to the Latin Customs of Normandy which are at the End of the Old French Edition of the Constumiers de Normandy Printed at Râ—aâ— 1515. The Title of which is thuâ— Iura Consuetudines Ducatus Noâ—maniae The Prologue to which begins thus Quoniam Leges Instituta quae Normanorum Principes non sint magna provisionis Industria Praelatorum Comitum Baronum nec non Caeterorum virorum prudentum consilio Assensu ad salutem humani foederis Statuerunt Whereby it is apparent that the Antient Laws of Normandy were made by the Advice and Consent of the Estates for the Preservation of that humane Covenant they had formerly made with their first Duke Rollo when he had that Dutchy granted him by the King of France and whoever will consult the antient Histories and Laws of that Dutchy will find theâ—â— Dukes of Normandy no more absolute Monarchs there than the Kings of Norway from whence they came so that if their Duke should have gone about to take away their Estates or inslave the Persons of the Norman Nobility and People he might justly have been resisted by them and therefore their taking Lands from K. William after his pretended Conquest here must either have conferred an Estate upon them according to the Laws of England or Normandy not according to the former for you assert that Tenures in Capite and Knight's service were generally introduced by his coming so that if they were by the Normans Law as you suppose they were then no farther subjects to their Duke by that Tenure when made King of England than they were whilst he was Duke of Normandy viz. only according to the Laws and Customs by which they held these Estates so that if their Duke was not irresistible by them in case of Tyranny in his own Country so he was also here by the same reason since whatever he did in respect of the English he could acquire no new right over them And that an Oath of Homage alone doth not make the Person to whom it is taken irresistible if he makes an unjust War upon his Vassals appears by the Dukes of Normandy themselves who tho' they held that Dutchy by Homage to the King of France and took the same Oath to him upon every Kings Accession to the Crown of being his Liegeman and to be True and Faithful to his Lord the King of France for the said Dutchy of Normandy yet might the Dukes of Normandy without any Imputation of Rebellion have resisted the King of France in case he made an unjust War upon them nor were ever the Dukes of Normandy accused of Rebellion for so doing in all the Wars that they had with the Kings of France And therefore the holding of an Estate by Homage doth not suppose that the Lord of whom it is held was irresistible nor doth the word of Allegiance signifie any more than that duty which the Liegemen by the Old Norman Law owed to their Supream Lord of whom they held their Lands and therefore when the King or Supream Lord of the Fee did not perform his part of the Contract but went about to turn them out of their Estates or to invade any of their just rights by force it was usual for the Tenants to defie the Lords and renounce their Homage to them for which they used the Barbarous Latin word diffidare in French to defie that is to renounce that Faith and Allegiance which before they owed them and the supream Lords also oftentimes defied their Tenants thus Mat. Paris tells in Anno 1233. that K. Henry the Third by the Counsel of the Bishop of Winchester defied Richard the Earl Mareschal and the year following we find the Earl justifying himself in this manner being then in Ireland First I answer that I never acted Treasonably against the King for he has unjustly spoil'd me of my Office of Mareschal without the Judgment of my Peers and has Proclaim'd me banisht thorough all England he has burnt my Houses destroyed my Lands c. he has more than once defied me when I was always ready to stand to the Judgment of my Peers from which time said he I ceased to be the Kings Liegeman and was absolved from his Homage not by my self but by him and whereas you say that tho' the King or Supream Lord cannot forfeit his Right tho' he breaks his part of the Compact because of the inequality which there is between a King and a Subject then this Prerogative of Non-resistance doth not belong to the King as he is Supream Lord of the Land but as he is King and giveth Law to the Subjects which may have some colour of Truth in Absolute Monarchies but was of no Force either in the Government of Normandy or England where the Duke or King without the consent of his Estates never could alone make Laws but as I will not deny our Government to be a Monarchy so it is as certain that it is limited in the very constitution either by the Saxons or Normans begin where you please and therefore my conclusion still holds good that if the English have now succeeded to those very Lands and Priviledges which the Normans anciently enjoyed then whatsoever Right or Liberty the English Proprietors of Estates do at this day enjoy they do not only hold them as the Successors and Descendants of those Normans and Frenchmen but are also restored to them Iure postliminii as you Civilians Term it since they never submitted themselves or took an Oath of Allegiance to King William and his heirs but only to himself Personally there being no such clause in any Oath of Allegiance till it was so ordained many ages after in the Reign of K. Henry the fourth nor was this Oath ever taken by our English Ancestors to K. William as to a Conqueror but the lawful Successor of K. Edward the Confessor and K. Williams actual taking away the Estates of a great many of the English Nobility and Gentry contrary to his own Oath and without any just oâ—use could no more give him a right so to do than if Henry the fourth or Henry the seventh both which came to the Crown by the assistance of a Foreign force should upon a pretence of being Conquerors have govern'd by an Army and so have taken away whose Estate they pleased and given them to their followers that came over with them M. I shall not dispute this matter with you any further therefore pray proceed to the other Point you took upon you to prove that King William did not take away so great a share of the Lands of England as the Dr. and those of our Opinion affirm F. I shall observe your commands and therefore in the first place I desire you to take notice that according to the Doctors own shewing your Conqueror never took away the Lands of all the Bishops and Abbots of England much less those that belonged to Deans and Chapters or
Noblemen or Gentlemen who held Lands in divers Counties of England at the time when that Survey was made and for proof of this since so short a conversation as ours will not permit me to run into a long Bed-role of names I refer you to what the learned and ingenious Mr. Atwood in his Ius Anglorum ab antiqua has observed out of Doomesday book upon this subject where tho' he has not only gone thorough but gone over Fifteen Counties of Thirty that are surveyed in that book yet it will thereby sufficiently appear that your Dr. is much mistaken when he so positively affirms that there were few or no Englishmen that held Lands in England but to give you a taste of this I shall run through as many Counties as Mr. Atwood has given us the names of To begin which survey where besides the Earl of Morton above mentioned who tho' he was a Norman born yet he was here before the entrance of the Norman Duke and held Estrehaw in Tenrige Hundred in the time of King Edward there was also Hugo de Port an Englishman who was a very great Proprietor as may be found under this Title in Doomesday book Terra Hugonis de Port many Mannors he had and as thereby appears in Hampshire he had at least two Mannors Cerdeford and Eschetune from his Ancestors before King William's entrance and besides this Gentleman and the Earl above mentioned there are no less than Ten or Eleven who as it appears either by their English Names or else by this note which so frequently occurs Idem tenuâ—t T. R. E. i. e. tempore Edwardi Regis the like I may say for the other Counties there mentioned as Hampshire in the next place where besides Ralph de Mortimer who had several Lands T. R. E. there are no less than above Thirty Free-holders more who by their Saxon names and want of Sir-Names seem to be English divers of whom held the same Thane Lands which themselves or their Fathers did in the time of King Edwards and tho in Buckinghamshire and Barkshire indeed there are but five or six who held the same Lands which they or their Ancestors possessed in the time of their Conqueror but yet in Wiltshire and Dorcetshire there appears between Twenty and Thirty English Proprietors many of whom held whole Townships when this Survey was made in Sommersetshire Devonshire Staffordshire Yorkshire and Glostershire their does appear in most of them a dozen or more English Saxon names who held whole Mannors 't is true that in Nottinghamshire Lincoâ—shire and Herefordshire their appear fewest English names and yet the least of these have three a piece So much may suffice for Doomesday book and I doubt not if any one will take the pains to look over the Titles of the rest of the Counties he may find enough Instances of the like Nature sufficient to prove that the English were not wholly dispossessed of their Estates at the end of K. William's Reign when this Survey was made Not to mention Northumberland Westmorâ—land and the Bishoprick of Durham all which are omitted But that the number of English which held the Lands in the time of King William the first and second was very considerable may appear by William of Malmesburies relating how the Norman Lords then in England would have dethroned William Rufus and haâ—e set up his Brother Robert in his place there also shews the manner how that King prevented it Rex Videns Normannos pend in una Rabie conspiratos Anglos probos fortes viros qui adhuc residui â—rant invitatoriis scriptis arcessit quibus super injuriis suis Querimoniam faciâ—us bonasque Leges Tributorum livamen Liberasque venationes poâ—licens fidelitati suae obligavit where Residui must certainly be meant of the residue of those English Gentry whose Estates were still left and herein Ordericus Vitalis is more express that King William as soon as he saw the contrivance against him Lanfrancum Archiepiscopum cum Suffraganeis praesulibus Comites Anglosque Naturales convocavit Conatus Adversariorum velle suum expugnandi eos indicavit M. As for Mr. Atwood's Catalogue of English names from Doomesday book I have not yet examined them and tho' I grant there are may be divers who held the same Lands that they or their Fathers did yet they are but a few in respect of the rest nor are we certain that all these were Native English and not Normans who held Lands as well then as before the Conquest since the Normans and the English names were often the same and as for the want of Sir-names that is no argument that they must needs be English since in those days very few even of the Normans but persons of Quality and Estates had any as Mr. Cambden shews us in his remains but as for those expressions in the Charters of King William and his Sons wherein the English as well as the French Earls and Barons are mentioned those Charters might be either made during the three or four first years of King William's Reign when I grant the English were not wholly dispossessed of their Estates but that there were some of them that still held Earldoms and Baronies in their own right but when the same expressions occur after that time the word Angli or Angligenae must be understood in another sense tho' it seems to be put in opposition to Francis son as by these last are to be understood such French or Norman Barons who had Estates in England as well as in France so by the former could be only meanâ— such Frenchman or Normans who had their Estates in England only Or else tho' French by Original were Englishmen by Birth are here called Angli and Angligenae to distinguish them from such French Barons as are above mentioned oâ— from such as were born in Francâ—s and for the truth of this I desire you would consult Dr. â—â—'s learned Glossary at the end of the Folio Edition of his answer to Mr. P. and his two seconds Tit. Angli and Angligenae where he tells us that these Angli and Barones Anglae mentioned in these Authors and Ancient Charters were not English but Normans and those men of no mean or ordinary Ranks but Earls or Barons for they could never have met in such numbers as were requisite for them to do to protect and defend King William Rufus had not they been headed by such if they had either Power or Estates lest that depended not upon the Normans and if you or any man can shew me an English Saxon that was then either Eâ—â—l or Baron or had any share in the Government or any that had considerable Estates that did not hold them of the Normans or had at that time any great Woods Forests or Priviledges of Hunting in them then I will confess my self mistaken As for W. Malmesbury saying these were Angli probi qui residui grant these were only the antiqui
to be no better than meer mercenaries which is expresly contrary to the Authority of Mat. Paris whom your selâ— have cited in this point as also other Authors who have writ of this matter for Matthew has immediately before these words Videns igitur Rex Willielmus omnes penè regni proceres unâ rabie conspiratos Anglos fortitudine probitate insignes faciles leges tributorum levamen illis venationes Hibarasque promittendo sibi primò devinxit and almost make use of the very words that Malmesbury had done before now I desire you or your Dr. would satisfie me how men who were remarkable for their Valour and Honesty and who were so considerable as to be sent for by Letters writ on purpose and when they came should be promised easier Laws and free Huntings and relaxation of Taxes all which are priviledges which belong to men of Estates could be mean Souldiers of Fortune And to make it plain that they were not the Kings but their own Woods they were to Hunt in Roger Hoveden speaking of this very matter tells us concessit omnibus sylvas suas venationem Sed quicquid promisit parvo tempore custodivit Angli tum fideliter â—um juvabant but that he did not keep his promise as to hunting as well as other things appears by a passage in Eadmerus where he gives us as an example of K. William Rufus harsh nature that about fifty men of the ancient English Gentry who seemed to please themselves in those days with some remains of Riches were taken and accused that they had killed the Kings Deer and having for this undergone the Trial of Fire and Water he was in a great Rage about it which is sufficient to shew you that there were at this time many English Gentlemen left of sufficient Estates to use Hunting either in their own or the Kings Woods As for what you urge farther against Mr. A's instances out of Doomesday Book are not very considerable since it is only an exception against the names of persons there mentioned that they were not Native English but Normans who either were born or had Lands in England or else had the same names with the English both which are gratis dicta for Doomesday book plainly proves either that they or their Ancestors were here before your Conquest or else their names being wholly English Saxon it lies upon your side to prove that they were Frenchmen or Normans by Original which I believe is more than you or your Dr. is able to do M. I shall not say any further about Doomesday book until I have either examined it my self or can procure it to be done by some I can trust but in the mean time as for what you say concerning Edwin of Sharborn the Learned Dr. hath so confuted this Story in his answer to Mr. P. that notwithstanding some learned and great men have given too much credit to it I think it will appear to have been altogether false and tho' Sir William Dugdale in the first Tome of his Barronage hath this story otherwise and says that notwithstanding the Kings Mandate all he could get was to become Tenant to Warren and William de Albius of part of his own Land under certain services and he is there called Edwin the Dane and this if any is most likely to be true being taken out of the Book sometime belonging to the Family of the Sharborns Here we see he applied himself to William but got not the Propriety of his Estate what he obtained was but to hold part of it from others and this was then a common practice as Bracton and Fleta two of our most antient Lawyers and one of them at least a Judge do inform us That are the time of the Conquest there were Freemen that held their Possessions by free Services and free Customs and when they were thrown out of them by powerful men afterwards returning to them received their own and the very same Tenements or Possessions to hold in Villenage by performing servile works but such as were certain and nominated to this may be added what Mat. Paris says that King William gave liberally to such as were with him in the Battle of Hastings when he Conquered England and that little which was left he put under the Yoak of perpetual Servitude yet further as to this particular Report of Sharaborn there could be no such thing for his name is not to be found as any Proprietor in Norfolk in Sharnborn in Doomesday-book and the owners of Sharnborn whiâ—h are there only to be found are William de Warrenna from whom this Story says it was restored to Edwin Odo Bishop of Bajeux Benerius Arbalistarius and William de Pertenai whence it is evident that Warren and others were possessed of these Lands in the 20 of the Conqueror not long before he died and no Edwin to be found as Proprietor of any of them or other Lands nor is the name of William de Albeni or William Pincerna to be found as a Proprietor in Norfolk or in Doomesday though this Manuscript of the Family of Sharnborn says he had that Village and several Towns thereabouts given him by the Conqueror by which it appears that this Report is groundless F. I cannot blame you if you do what you can to evade this testimony from Sharnborn's Book which gives so exact an account of the Original of those Tenants who held of the King as Sir H. Spelman tells us per servitium Dreugarii and such Tennants were called Dreuches or Dreuges as this Book of Sharnborn tells us but tho' it is true as this Book it self sets forth Edwin of Sharnborn was never restored to all the Lands he held before the Conquest yet it is plain that he had the Kings Mandate for his restitution and if he could not obtain it by reason of the great power of the present possessors yet that is no argument against his Right or King William's Intention to restore him since Ingulph tells us that Ivo Talboi seized the Cell of Spalding and Diverse Lands belonging to the Monastery of Crâ—yland and kept them by force notwithstand a solemn hearing before the King and Council and if a great man could do this with the Lands of the Church It is no wonder that so powerful a person as Earl Warren could by his power or perhaps by the connivance of K. William himself keep another Mans Estate and make him contented with such a share as he would allow him when he found he could have no other remedy against those that thus unjustly detained it But tho' in the beginning of your Discourse you seem to allow a part of the Story as it is related in Sharnborn's Manuscript and produce the Testimony of Bracton and Fleta to prove that divers Antient English Proprietors who being thrownâ—out of their Estates by powerful men presently after the Conquest were â—ain to take them again upon performing of Villain-Services
tho' they themselves remained free men but your Dr. from whom you borrow this is very much out in his application of those passages he cites for neither of those Authors do affirm this of all owners of Lands whatsoever but only there to give us the Original of Soccage Tennants on the Kings Demeasnes as appears by Bracton's Title to that Chapter from whence the Dr. cites this passage which is de diversis conditionibus personarum tenentium in dominicis Domini Regis and the first words of this chapter make it yet plainer beginning thus in Dominico Domini Regis plura sunt genera hominum sunt enim ibi servi sive Nativi ante Conquestum in Conquestu post Conquestum and under these last ranges the persons you mentioned but Fleta is more exact in his Chapter de Sokemannis where he tells us that these men were Tenants of the Kings Ancient Mannors in Demeasne quia hujusmodi cultores Regis dignoscuntur provisa fuit quies nâ— sectas facerent ad Comitatum vel hundredum tamen pro terra quorum congregationem tune socam appellarunt hinc est quod Sokemanni hodie dicuntur esse So that tho' King William might permit his Ancient Tenants to be thus outed of their Estates they held in his own Demeasnes yet does it not therefore follow that he took away the Estates of the Ancient Owners all over England of whatsoever Tenure they were or of whomsoever held But as for your quotation out of Mat. Paris it proves no more than what I readily grant that King William after his return out of Normandy liberally rewarded his Followers with the Estates of the English which might he only of such as fought against him at the Battle of Hastings and as for that little which was left them which he says was put under the Yoak of a perpetual servitude he means no more by this expression than that new Tenure of Knights service which King William imposed upon them as this Author in the very next leaf speaking of the Lands of the Bishopricks and Abbies which were held before free from all secular servitude sub servitute statuit Militari and therefore you seem to contradict your self when contrary to your own Author Sir William Dugdale you deny the truth of any part of the Story because that in Doomesday book the name of Edwin of Sharnborn is not to be found and that William de Albeni is not named amongst the owners of that Mannor which is not material since this William might obtain a share therein after this Survey was made and as for Sharnborn himself his not being there mentioned is no argument that he had no Lands within that Mannor or the other that is mentioned in that Narrative since oftentimes the chief Lords of the Fee are only mentioned in Doomesday book tho' all the Proprietors under them are not particularly named but it is in vain to discourse any longer with you upon the Subject of your Conquerors taking away the Lands of English owners I have given you my opinion and the reasons against it and if you are not of my mind I cannot help it therefore pray go on to your next head and shew me by sufficient Authorities that King William as a Conqueror altered all the Laws and Customs of this Kingdom M. I will not undertake to prove that he altered all the Laws of England and brought in quite new ones yet that he did so in great part and that by his sole Authority I think I can prove by sufficient Testimonies and therefore I shall begin with that of Eadmer a Monk of Canterbury a companion of Archbishop Lanfranc's who tells us in his History that William designing to establish in England those Usages and Laws which his Ancestors and he observed in Normandy made such persons Bishops Abbots and other Principal men through the whole Nation who could not be thought so unworthy as to be guilty of any reluctancy and disobedience to them knowing by whom and to what they were raised all Divine and Humane things he ordered at his pleasure And after the Historian hath recounted in what things he disallowed the Authority of the Pope and Archbishop he concludes thus But what he did in secular matters I forbear to write because it is not my purpose and because also any one may from what hath been delivered guess what he did in seculars From which I think nothing is plainer than that K. William did not only design to alter many things in the Laws and Customs of England but did also actually do it since to that end he made the Bishops Abbots and other Principal men who were to be Judges in all Courts such as he could wholly confide in now that K. William govern'd the Nation as Conqueror and did so live and repute himself so to be and as such brought in and imposed new Laws upon the People of this Nation is as clear as I shall prove from these particulars first The Justiciaries or cheif Justices the Chancellors the Lawyers the Ministerial Officers and under Judges Earls Sheriffs Bailiffs Hundre duties were all Normans from his first coming until above a hundred years after as I can make it out by particular instances and undeniable Reasons were not the Catalogues too long to be here inserted If therefore the Justiciaries Chancellors Earls Sheriffs Lords of Mannors such as heard Causes and gave Judgment were Normans if the Lawyers and Pleaders were also Normans the Pleadings and Judgments in their several Courts musts of necessity have been in that Language and the Law also I mean the Norman Law otherwise they had said and done they knew not what and Judged they knew not how especially when the controversies were to be determined by Military Men as Earls Sheriffs Lords of Mannors c. that understood not the English Tongue or Law or when the cheif Justiciary himself was a Military Man as it often happen'd and understood only the Norman Language and 't is hardly to be believed these Men would give themselves the trouble of learning and understanding the English Law and Language Secondly Tho' we have many Laws and Customs from the Northern People and North parts of Germany from whence both Saxons and Normans came yet after the Conquest the Bulk and Main of our Laws were brought hither from Normandy by the Conqueror from whence we received the Tenures and the manner of holding our Estates in every respect from whence also have we received the Customs incident to those Estates And likewise the Quality of them being most of them feudal and enjoyed under several Military Conditions and services so that of necessary consequence from thence we must receive the Laws also by which these Tenures and the Customs incident to them were regulated and by which every mans right in such Estates was secured according to the Nature of them from Normandy and brought in by the Conqueror we received most if not all
their good behaviour could be the Probi legales homines who served upon Juries to conclude if I have already proved as I think I have sufficiently that K. William took away the greatest part of the Lands of England and gave them to Normans and Frenchmen who were the only true Free-men or Free-holders of the Kingdom and as such owed Suit and Service to the Hundred and County Court in which as you your self set forth all the considerable Actions as well Real as Personal were then commenced and tryed it will also follow that the Suitors who were the Judges in those Courts being for the greatest part at least Frenchmen all the Trials and Proceedings therein must have been in French and not in English which is contrary to what you have undertaken to prove F. If this be all you have to object against what I have now said that all Pleadings in the Inferiour Courts in the Country must in the time of your Conqueror have been in French and not in English I hope I shall give you very good satisfaction to the contrary and therefore I shall prove to you that the very same persons who were the Suitors or Judges in the Hundred Court were also Suitors in that of the County tho' they were of never so small Estates of Free-hold and those that were thus Judges in the Hundred Court were also the same persons of which the lowest Court Viz that of the Headborough or Tythingman did consist appears by the very definition of a Hundred as you may see it in Sir H. Spelman's Glossary Est autem Hundredus portio Comitatus quâ Olim degebant Centum pacis regiae fideiussores uti Decuria quâ decem complexus est igitur Hundredus decem Decurias ut centenarius numerus decies denarium now that the County Court consisted of the same sort of persons of that of the hundred is also as certain since all England was then and is now divided into Counties Hundreds and Tythings so that as the Hundred Court consisted of a hundred Persons who had all given Pledges to the King so did the County Court consist of all the Free-holders or Free-men of the several Hundreds of the County who all owed Suit and Service to the County Court and as such were returnable upon Juries in all Trials in that Court tho' they had never so small Estates of Free-hold for there were no Laws that limited the estates of Free-holders returnable upon Juries on Assizes or Trials to the yearly value of Forty Shillings until the Statute of West II. But that these Suitors to the Hundred Court must have been for the most English in all your Conquerors Reign your Dr. has given us a sufficient testimony in his answer to Mr. A's Ianus Anglorum p. 35. where he tells us the Jurors were antiently called Tests and often in Doomesday-book it is thus sound Testatur Hundredus Teste Hundredâ the Hundred Witnesseth that such Lands is such a Man's or by the Witness of the hundred such Land is a such Man's See the claims in Yorkshire Lincolnshire and Suffolk at the end of the Book Now the use that I shall make of these words of the Drs. is this that in many of these claims the Issue is that such a one held the Land die quo Rex Edwardus suit vivus mortuus now I desire you to tell me if the free-holders of the Hundred were all Strangers and Normans at this time as your Dr. supposes they all were that served on Jurles in the Hundred and County Court how these men could testifie who held the Land at the time of K. Edward's Death and by what Services and I desire you to be pleased to read and consider the Trial mentioned in Doomesday-book between Will. de Chornet and Picot the Sheriff where the proof was by the best and most antient Men of the whole County and Hundred that this Land in question belonged to Chornet per haereditatem sui Antecessoris So that then the best and antientest Free-holders of the County of Berks were the same who were so in the time of K. Edward or else how could they Witness this Land to have been held by Chornets Ancestor But because you have two or three small objections against this truth I shall endeavour to remove them The first is that those who try'd one anothers Causes in the County Court are in the Law of K. Henry I. which you now cited called Barones Comitatus qui liberas Terras habent Therefore you imagine that these Barones Comitatus must needs have been all Tenants in Capite or by Knights Service at least who by vertue of that Tenure owed Suit and Service to the County Court which is a great mistake since every Free-holder of whatsoever Tenure who was resident within the County owed Suit and Service to that Court and it is only by vertue of the twentieth of Henry the sixth which as I have already shewed you limited that Service only to Free holders of Forty Shillings per annum or above now that every Free holder tho' of never so small Estate was anciently a Baron of the County is also as certain in the ancient and larger acceptation of the word Baron which did not originally signifie only a Tenant in Capite or by Knight Service but any other Free-holder who could be returned upon a Jury concerning Free-hold in the County Court now that every Lord of a Mannor and Free-holder was anciently called a Thane before the Conquest appears by this Law of K. Knutes habet omnis dominus familiam suam in plegio suo si accusetur in aliquo respondeat in Hundredo ubi compellabitur sicut recta Lex sit Quod fi accusetur fugiat reddat Dominus ejus Regi Weraem i e. precium nativitatis hominis illius si Dominus accusetur quod ejas consilio sugerit adlegiet se cum quinque Thanis id est Nobilibus idem sit sextus si purgatio frangat ti reddat ei scil Regi Weram suam qui fugerit extra legem habeatur I shall nor trouble my self to translate this Law since the Latin is plain enough only take notice that by this word adlegiet he shall wage Law or make Oath together with five Thanes that is Noblemen or Gentlemen idem sit sextus whereof he himself should be the sixth where you may see that every Free-holder being Master of a Family is here called a Thane who was to give pledge or security that all his Family should answer the Law in the Hundred Court for any offence they should commit and these Thanes were such as Mr. Lambert expresses by Ascitus sibi ingenuis quinque for what he calls ingenuus Brompton calls liber homo that is every Free-holder so that you see Thane ingenuus and liber homo signifie all the same thing that is the lower sort of Thane or Free-holders who owed Suit
Heirs within age of such Tenants but this extended not to the Tenures of the Subjects by Knights Service as it appeareth by Bracton Dicitur Regale seâ—vitium quia spectat ad dominum Regem non alium secundum quod in Conquestis fuit adinventum c. Whereupon Sir E. C. notes in the Margent the Tenure as before it appeareth was not then invented but the fruits of this Tenure of the K. viz. Wardship and Marriage which was Bracton's meaning so as the Conqueror provided for himself but other Lords at the first by special reservation since the Conquest provided upon gifts of Lands for themselves Regis ad exemplum totuâ— componitur orbis wherein that which we had from the Conqueror we freely confess F. I shall not dispute his matter since it is doubtful whether this custom of Wardship was Norman or whether it was derived from the Saxons who possibly might have some respect to Orphans in such cases to train them up for the publick Service in point of War especially being possessors of a known right of Relief as well as Alfred the Saxon King did undertake the work for the training of some particular persons in learning for the service of the publick in time of Peace and Civil Government and tho' Sir H. Spelman is of opinion in his Title de Wardiâ— that Wardship of the Heir came in with the Conqueror yet Sir Iohn his son who was also a learned Antiquary in his Epilogue to his second book of K. Alfred's Life Printed at Oxford speaking of Military Fees granted to the Kings Thanes has this passage Haec etiam Fioda baeredibus sub Hereoti siâ—e relevaminis cujus piam quod haeres in terrae redemptionem Regi solvere tenebatur conditione plerumque transibat si haeres minor natu à Patre moriente relinquebatur Regi educatio â—jus utpoâ—â— Regis Hominis committebatur in utilitatem etiam commodum ipsius Regis But whether the Wardship of the Body of the Heir was in use in K. William's time or before is uncertain for the land is in the Charter of Henry the first in Mat. Paris granted either to the Widdow or next heir But let these customs be derived from whence you please it is a plain case it could be no badge of Conquest upon the People of this Nation and that by the Doctors own shewing for were it a Norman custom never so much if your Conqueror first of all imposed it upon those he brought over along with him it could never be a badge of Slavery upon the English Nation but rather upon the Normans upon whom it was chiefly imposed and if they afterwards granted Lands to the English upon the same terms they held them themselves they were no more Slaves to whom they were granted than they were under whom they held them but indeed this was so far from being looked upon as my badge of servitude that if the Dr. himself is to be believed these were the only Freemen and their services Bracton says were so notoriously free that in Writs of Right it was never mentioned because so well known Notandum in servitio Militari non dicitur per Liberum servitium ideo quod Constat Quia tale Servitium Liberum est And hower Rigorous the Feudal Law might be at the beginning it was when your Conqueror came in so far mitigated as to the rigour of it that the Tenants by Knight Service were not only free by K. William's Law from all Arbitrary Taxes and Tallies but also obtained a setled Inheritance to them and their Heirs as appears by that clause in K. William's Charter and therefore in the Reign of Henry the Third when William of Warren Earl of Surrey was questioned after the Statute of Quo Warranto by the Kings Justices by what Warrant he held his Lands pulling out an old Sword he answered to this Effect behold my Lords here is my warranty my Ancestors came into this Land with William the Bastard and obtained those Lands by the Sword and I am resolved with this Sword to defend them against any whosoever shall go about to dispossess me for the K. did not himself alone Conquer the Land but our Progenitors were sharers with him and assistants therein As for what you say That the Laws in the Customary of Normandy are the same with the Laws of England It is no more than what divers French Writers have taken notice of but do not attribute their agreement to their being borrowed from the Normans but quite contrary for in the first place most of the Learned Men say That the first establishing of the Customary of Normandy was in Henry the first 's time and afterwards again about the beginning of Edward the seconds time when Normandy was not under the King of England and Sâ—querius a French Author relates that K. Henry I established the English Laws in Normandy and with him do also agree Gulielmus Brito Rutilarius and other French Writers who mention also that the Laws in the Customary of Normandy are the same with the Laws collected by our English K. Edward the Confessor who was before the Conqueror an additional Testimony hereof is out of William de Reville de Alenson who in his Latin Comment upon the Customary proves and demonstrates that the Laws and Customs of Normandy came from the English Laws and Nation either not long before or after Edward the Confessor's time In the Customary there is a Chapter of Nampes or Distresses and it is there decreed that one should not bring his action upon any seisure but from the time of the Coronation of K. Richard and this must be our K. Richard the first because no K. of France was ever of that name and the words Nampes and Withernams were Saxon words taken out of the English Laws signifying a Pawn or Distress and in the same sense are used in the Customary But if you have nothing more to object against what I have now said pray proceed to your last head and let me see how you will prove that the English lost all their antient Liberties and Priviledges which they enjoyed under the English Saxon Kings M. I never heard so much before concerning the Original use of the French Tongue in our Reports and Law Books but yet this much I think you will not deny first that the Norman French was never used in our Courts of Justice till after the Conquerors entrance Secondly That he did his endeavour totally to root out the English Tongue by ordering of Children to learn the first rudiments of their Grammer in French and as for what you have said concerning the Customary of Normandy being especially as to Tenures derived from the English Laws and Customs I do not deny but that it may be the opinion of some French Writers that it was so but I shall believe it when they can prove that the Wardships and Marriage of the Heir of the
Tenants by Knights service as also those aids they were to pay the King or any other Lord they held of towards making his eldest Son a Knight and Marrying his eldest Daughter were in use in England before the Conqueror came over But to observe your commands I shall now proceed to shew that by the Conquest the English for a time lost all their ancient Rights and Priviledges till they again obtained them either by their mixing with the Normans so that all distinction between them and the English were taken away or else they were restored by the Charters of K. Henry the first K. Iohn and K. Henry the third I shall therefore divide the priviledges of Englishmen into these three heads first Either such as concerned their Offices or Dignities Or secondly Such as concerned their Estates Or lastly Such as concerned the Tryal for their lives in every one of which if I can prove the English Natives as well of the Clergy and Nobility suffered confideracie lesses and abridgments of their ancient 〈…〉 liberties which they formerly enjoyed I think I shall sufficiently prove the point in hand As to the first head Ingâ—ph telâ—s us that the English were so hated by the Normans in his time that how well soever they deserved they were driven from their Dignities and strangers tho' much less fit of any Nation under Heaven were taken in their places and Malmesbury who lived and writ in the time of Henry the first says that England was then become the habitation of foreigners and the Rule and Government of strangers and that there was at that day no Englishman an Earl Bishop or Abbot but that strangers devoured the Riches and gnawed the Bowels of England neither is there any hope of ending this misery So that it is plain they were now totally deprived of all Offices and Dignities in the Common Weal and consequently could have then no place in the great Council the Parliament of the Nation both for the raising of Taxes and the making of Laws and tho' I grant Mr. Petyt and your self suppose you found a clause in the Conquerors Magna Charta whereby you would prove that all the Freemen of this Kingdom should hold their Lands and Possessions Well and in Peace free from all unjust Exactions and Taillage so as nothing be exacted or taken unless their Free-services which of right they ought and are bound to perform to us and as it was appointed to them and given and granted to them by us as a perpetual right of Inheritance by the Common Council of the whole Kingdom This Common Council will not help you for without doubt here were no Englishmen in it for certainly they would not grant away their own Lands to strangers These were the Saxon Lands which William had given in Fee to his Soldiers to hold them under such services as he had appointed them and that by right of Succession or Inheritance We will now come to the second point viz. the Priviledges the Englishmen lost as to their Estates for whereas before the Conquest you affirm the K. could nor make Laws nor raise Taxes without the Common Coâ—ncil of the Kingdom it is certain K. William and his immediate Successors did by their sole Authority exercise both these Prerogatives as for his Legislative power it appears from the words of his Coronation Oath as you your self have repeated it out of Florence of Worcester and Roger Hoveden the conclusion of which Oath is se velle reâ—â—am legem statuere tenere Rapinas Injustaque Iudicia penitus interdicire Now the Legislative power was then lodged in him why else did he swear to appoint right Laws For if the constitution had been setled as it is at present the Parliament could have hindered him from making any other and that he could do so appears by that yoak of servitude which Matthew Paris as well as other Authors tells us K. William by his own Authority imposed upon the Bishopricks and Abbies in England which held Baronies which they had hitherto enjoyed free from all secular servitude he now says he put under Military service sessing all those Bishopricks and Abbies according to his pleasure how many Knights or Souldiers each of them should find to the King and his Successors and putting the Rolls of this Ecclesiastical Service in his Treasury he caused to fly out of the Kingdom many Ecclesiasticks who opposed this wicked constitution now if he could do this upon so powerful a Body as the Bishops and Abbots were at this time he might certainly as well raise what Taxes he pleased upon all the People of England and therefore Henry of Huntington tells us that K. William upon his return out of Normandy into England Anglis importabile tributum imposuit Lib. 3. p. 278. And that his Son William Rufus imposed what Taxes he would upon the People without consent of the Parliament appears by that passage of William of Malmesbury which he relates in the Reign of this K. as also in his third book de Gestis Pontificâ—m concerning Ranulâ— whom from a very mean Clerk he made Bishop of Duâ—ham and Lord Treasurer the rest I will give you in Latine Isle siquando edictum regium processisset ut nominatum tributum Anglia penderet duplum adjiciâ—bat subinde idente Rege ac dicente solum esse hominem qui sciret sic agitare ingenium nec aliorum curares odium dummodo complaceret dominum So that you may here see that the Kings Edict or Proclamation did not only impose the Tax at his pleasure but his Treasurer could double it when he had a mind to it without consent of the great Council or Parliament as we now call it and this Prerogative was exercised by divers of his Successors till the Statute de Tallagiâ— non concedendo was made But to come to the last head concerning the alteration of Tryals for mens Lives and Estates by the Conqueror from what they were before it is certain that whereas before the Conquest there were no other Tryals for mens lives but by Juries or else by Fire or Water Ordeal which was brought in by the Danes the Conqueror tho' he did not take way these yet also added the law then in use in Normandy of Trying not only Criminal but Civil Causes by Duel or Combat all the difference was that in criminal cases where there was no other Proof the accuser and accused fought with their Swords and the party vanquished was to lose his Eyes and Stones but in civil causes they only fought with Basâ—oons headed with Horn and Bucklers and he or his Champion who was overcome lost the Land that was contended for from whence you may take notice also of a great alteration in the Law not only concerning Tryals but capital Punishments so that whereas before the Conquest all crimes even Man slaughter it self were either â—ineable according to the Quality of the Person and the Rates set upon
he brought over with him had as you suppose the greatest share of all the Lands in England they would have been too powerful a body of Men to be thus made Slaves at his pleasure but indeed his own Laws shew the contrary for in that very Law it appears otherwise Whereby all the Freemen of the Kingdom were to hold their Lands and Possessions free from all unjust Exactions and Taillage and that nothing should be exacted of them but their free service which they were bound to do according as it is appointed them by the K. and it is granted them by an Hereditary Right for ever by the Common Council of the whole Kingdom whereby you may see that they had their Lands and Liberties granted them for an Hereditary Right not only by the K. but by the Common Council of the Kingdom and that the K. could not alter K. Edward's Laws without their consent the Charter of K. Henry I. says expresly Legem Regis Edwardi vobis reddo cum illis emendationibus quibus Pater eam emendavit Concilio Baronum suorum Therefore as for that Authority you have brought out of H. Huntington that upon this Kings return from Normandy he imposed a heavy Taxe upon the English this is either to be understood of such a Tax as they gave him voluntarily tho' perhaps they durst not do otherwise as the States of Provence and Languâ—doc are fain to do to the K. of France at this day when he requires it and yet he does not claim those Countries by right of Conquest or if K. William imposed this Tribute without their consents it was not only contrary to the Law just now mentioned but also to his own Coronation Oath whereby he swore to prohibit all unjust Rapines and that he should behave himself equitably towards his Subjects with which certainly his taking away their Money without their consents would by no means consist but to answer that part of the Coronation Oath which you think makes most for you that whereby he swore only to make Right Laws which must have supposed the Power to have been in himself because the Parliament might have hindered him from doing otherwise this is but a cavil for it is already proved that he was to make Laws and raise Taxes by the Common Council of the Kingdom and therefore these words may very well bear another sense and do only give the K. a Negative voice of passing such Laws as the great Council should offer to him or else such as he might propose to them for their consent and I suppose you will not deny but that it is very possible that either the K. or the Parliament may propose such Laws as may not seem equitable or Just and then certainly both the one and the other have a negative vote and ought not to give their consents to them But to answer your last instance whereby you would prove that this King as a Conqueror imposed what Taxes and Services he pleased not only upon the Laity but the Clergy too by making the Bishopricks and greater Abbies liable to Knights Service which you suppose to have been done by his own sole Authority without any consent of the Common Council of the Kingdom this is only gratis Dictâ—m and is indeed altogether improbable for if the K had done this by his sole Power he would have imposed this Service upon all the Abbies in England whose Lands might have been as well reduced to Knights Fees as those that were put under that service and so might have been forced to find as many Souldiers as they had Fees as well as the Bishopricks and greater Abbies but indeed the Clergy were too powerful a body to be thus Arbitrarily imposed upon and they would soon have complained to the Pope against the K. for this new servitude he had imposed upon them and therefore I think we may with much more safety conclude with Mr. Selden in his Titles of honour that this imposition of Knights Service upon the Bishopricks and Abbies was done by the Common Council of the Kingdom It being too great a matter to be done without it for it appears by Eadmerus that the K. held a Council this very year tho' the Laws and Proceedings of it are all lost and this is the more likely to be so because this imposition was not laid upon all the Abbies in England but only upon the Bishopricks and such Abbies as were of Royal Foundation and held immediately of the King before your Conquest and were only such as enjoyed whole Baronies as Mat. Paris there tells us I shall now come to your last head whereby you would prove that your Conqueror by his sole power altered the Course of Tryals and introduced the custom of Duel or single Combat in Civil as well as Criminal Causes the chief argument you have for this is that there is no mention made of this tryal by Duel in our English Saxon Laws before the Conquest which is but a negative argument at the best and you can shew me no Ancient Author that says expresly that K. William introduced it and tho' I grant it is first mentioned in his Laws yet does it not therefore prove that it was not here before since it was certainly in use among the Francs and Longobards who were German Nations as well as the Saxons but admit it were first introduced by the Conqueror this was no badge of Conquest for the Normans as well as the English were subject to this Tryal which was in use in France and Normandy long before this King 's coming in so that admit he first establisht it here it might not have been done by his sole Power but by some Law made in the great Council of the Kingdom tho' it be now lost as we have very few of the Laws that were made by this K. now left us besides those which are called the Laws of K. Edward with this Kings alteration of them all which was certainly done in the Common Council the like I may say concerning the alteration of Punishment for Deer stealing and other crimes which were either Punishable by Pecuniary Mulcâ—s or else by death before the coming in of the Normans since those alterations might be also made by the consent of the great Council but that the same Forest Laws were in use before the Conquest as after you may see in the Forest Laws of King Knute as you will find in Sir H. Spelman's Glossary Title Foresta only the Punishments are there Pecuniary or else loss of liberty which after your Conquest was changed into the loss of Eyes and Members But as for other lesser matters as his disarming the English and forbidding Night Meetings if these things were done as I do not find any express Law for them for there is no such thing mentioned in the Law de nocturnis Custodiis they were either practised by this K. for his own security after the English had by their frequent
if the King had seised all the English Estates without any Legal Tryal as for example in Essex in Barnstable hundred In Burâ de istis Hidis est una de hominibus soris sactis erga Regem and this was the way of expression in the Active Voice we find in Noâ—folk Earl Ralf held such Lands Quando se foris fecit But more particularly in Cambridgeshire in Wardune Hardwin holds of Richard's Ancestors but Ralf Waders held it Die quo deliquiâ— contra Regem all which would never have been inserted could this King have taken away mens Lives and Estates without any colour of Law or Justice and therefore you may find in all the Historians of his time that after the great Plot wherein so many Norman as well as English Lords were concerned and for which Roger Earl of Hereford and Ralph Earl of Norfolk and Suffolk both Normans had conspired with Earl Waltheof and other English Lords to call in the Danes and dispossess the King yet they were convicted by a legal Tryal of their Peers and suffered death for it So that in this he distributed equal Justice to the Normans as well as the English who thereupon forfeited all their Estates and yet notwithstanding this there were some Native Englishmen still lest who tho' they had been in Arms against the King at the beginning of his Reign yet were nevertheless reconciled to him and restored to their Estates as for example Ederic Sirnamed the Forester who as Florence of Worcester tells us was reconciled to King William and accompanied him into Scotland soon after as also Herward the Son of Leofric Lord of Brunne who having lost his Estate and being Out-lawed as Ingulph tells us Took Arms against the King William and joyned himself with those in the Isle of Ely and yet after divers great Battels as well against the King as his Commanders yet at length having obtained his Inheritance by the Kings allowance he finished his days in Peace and now here were two considerable English Barons which still enjoyed their Estates notwithstanding all King William's severity and yet I do believe it will puzzle your Dr. to shew me their names in Doomesday-book so that that Book alone is not it seems a certain Rule to discover what Englishmen were then Barons or Tenants in Capite But admit all this to be true as you your self have represented it can this Kings perjury to his Subjects and breach of all Laws after so many solemn Oaths give him a right as a Conqueror over the Lives and Estates of his English Subjects and that after he had solemnly renounced his Right of Conquest by so many solemn transactions with his Subjects with whom you suppose he still made War after he had for so many years laid down his arms at this rate I cannot tell when subjects may be safe for let Kings that come to a Crown by a mixt title partly by force and partly by right take never so many Oaths to maintain the ancient constitution of the Government together with the Rights and Priviledges of the People 't is but his saying afterwards when he hath sufficient power that they were forced upon him and that he never designed to keep them and his business is done and he may then take away his Subjects Lives and Estates by this pretended right of Conquest whenever he pleases nor does this only extend to himself alone but to all his Heirs and Successors who claim under that Title let them take never so many Coronation Oaths or make never so many Declarations to the contrary since they all claim under the same divine Title of the Sword that is as you will have it receive their Crowns immediately from God and then can never forfeit them let them tyrannise to the utmost degree imaginable for you have provided them with two easie and pleasant excuses that all promises are either broken or kept and Stultám Sacramentum est Frangendum and I cannot but smile to see what an excellent excuse you have found out for all the breach of Oaths and Covenants of those engaged in the late Civil Wars since they might very well plead they had so many Royal Presidents for so doing as sufficiently authorised it unless you will have that to be Perjury in Subjects which must be a Divine Prerogative in Kings And therefore let me tell you I am very glad for your own sake that there is no body here but you and I since all the company would have cryed out and said that this way of arguing were to make open War not only upon all the Laws and Priviledges of this Nation but also to put the King and People in a state of War against each other for if he once declares by such Overt Acts as these of King William's that he will not be tyed neither by his Coronation Oath nor by any Laws he has made I doubt their Oaths of Allegiance will not long bind them neither and they will be very ready to reply that whatever power began and is continued by force and violence may also be cast off by the like means and when a King and his People are brought once into this state it is easie to foretell what will be the event either he must turn out or they must be all Slaves and I wish it was not owing to such Jesuitical flattering Councils as this that the King first lost the Affections of his People and then his Crown since Father Peters himself with the rest of the Jesuits and Arbitrary Ministers of the Cabal could never have instilled worse Principles than these therefore I pray for the future either get better reasons or keep those to your self But God be thanked both King Iames and K. Charles the First had much better thoughts of the Laws and Liberties of the Nation since the former hath solemnly declared in a Preamble to the second Act of Parliament in the first year of his Reign That not only the Royal Prerogative but the Peoples security of their Lands Livings and Priviledges were secured and maintained by the antient fundamental Laws Priviledges and Customs of this Realm and that by the abolishing or altering of them it was impossible but that present confusion will fall upon the whole state and frame of this Kingdom And his Son was of the same opinion in his first declaration at the beginning of the late Wars The Law says he is the Inheritance of every Subject and the only security he can have for his Life or Estate and the which being neglected or disesteemed under what specious shew soever a great measure of infelicity if not irreparable confusion must without doubt fall upon them M. If I had no love at all for the Government and Liberties of my Country as I thank God I have a great affection for both yet should I not have the Impudence to contradict the sense of two Kings and a Parliament neither have I so
him not to insist upon the distribution and reading of it because it was against Law tho' admit it were being no way contrary to the Law of God they ought to have obeyed it since their bare distributing of it had not rendered it the more Lawful so that it being a great misdemeanour in these Bishops to deliver this Petition their Commitment and Prosecution at Law for the same was also Legal and what the Privy Council told his Majesty he might well justifie so that if the King was too severe in this matter they were to bear the blame and not he F. I cannot deny but you have given a just account of the main Arguments made use of by the late Lord Chief Justice Merbert in defence of the Kings dispensing Power and of giving his own opinion for it but I think notwithstanding all that Gentleman has Written in defence of it that the Kings Declaration of Indulgence and his Dispensation grounded thereupon to be both of them void and contrary to Law and for proof of this I shall first give you the opinion both of those Divines and Civilians concerning this matter as first Swareâ— in his learned Book de Legibus saith That he hath the Power of Dispensing qui legem tulit quia ab ijus volontate potentia pendat but Vasques another Learned Spanish Casuist holds that no Prince whatever hath a Power to Dispence with his Laws according to his pleasure or because that they are his Laws nay he also denies such an unlawful Dispensation to be valid but to come to those of your own faculty H. Grotiuâ— saith expresly Dispensare hoc est lege solvere le solus potest qui serendae abrogandâ—â—que legis potestatem habet Pusendors affirms That none can Dispence with a Law but such as have the Power of making it and the very reason of the thing sufficiently shews it for to dispense is to take away the Obligation of the Law in respect of them to whom it is granted and whoever takes it away must have the power of laying it on and there is no difference between the dispensation of a Law and the Abrogation of it but that a dispensation is an abrogation of it to particular persons while others are under the force of it and an abrogation is a general dispensation that being no more than a relaxation of the whole Law to those persons who were bound by it before therefore if the King have not the whole legislative power of this Kingdom as I think I have already proved he has not he neither can have the sole power of dispensing with Laws But to answer your main argument that the constant practice hath been otherwise for the space of above 200 years and that confirm'd by the Judgment and Opinions of all the Judges and most considerable Lawyers in England ever since that time to answer this I say it is necessary that I give you a short History of this Dispensing Power and the Original of Dispensations with Non obstantes which are so far from being as old as your Conquest that the first news we hear of them is from Mat. Paris who expresly tells us they were first introduced by the Pope and were afterwards inserted into the Kings Patents and Protections in imitation of them by King Henry III. so they were never made use of by any of our Kings to ellude Acts of Parliament till after the Statute of Mortmain which was made in the seventh of Edward I. which first attempt must needs be Illegal because contrary to Magna Charta ch 36. which is the first Law which prohibits Alienations in Mortmain and was not only sworn to when enacted but is also confirmed by many after Acts of Parliament and ordered to be observed in all points insomuch that when the Clergy petitioned King Edward I. for a relaxation of this Statute of Mortmain his answer was that he could not do it because it was Enacted Communi Consilio Magnatum suorum sine eorum consilio non erat revocandum and I grant that such was the misguided devotion of those times that such Non-obstantes were often obtained as appears by the Patent and Charter Rolls in the Tower from the eighth of Edward the I. downwards abounding with special Licenses to purchase and hold Lands c. Statuto de terris tenementis in manum mortuum non ponendis non Obstante And yet were not these Licenses accounted Legal or the Clergy safe in purchasing such Lands Rents Advowsons c. by vertue of them till it was enacted and Ordained in Parliament in the eighth of Ed. III. to this effect That if Prelats or other Religious People have purchased Lands and the same have put to Mortmain and be Impeached upon the same before our Justices and they shew our Charter of License and Process thereupon by an Inquest of ad quod damnum or of our Grace or by Fine they shall be freely lest in peace without being further Impeached for the same purchase c. But Non-obstantes with the Statute of Mortmain having been introduced as afore-said tho' undeniably Illegal at first and gaining afterwards a countenance from this Act of Parliament have I suppose given occasion to the dispensing with other Acts of Parliament also tho' at first they were very rare and seldom occur in the old Books but are more frequent in the new and that our Judges and Courts of Justice have invented little distinctions betwixt malum in se and malum prohibitum betwixt Laws made pro bono publico and Laws of more private regard betwixt Laws in which the King's Profit and Interest is concerned only and Laws in which the Subjects have an interest and are intituled to an action as the party grieved yet the cases that have hitherto come before them judicially have been questions upon Dispensations granted to particular persons to exempt them pro hic nunc from incurring the penalty of such and such a Law but a Dispensation and Suspension of so many Laws at a lump as the late Declaration of Indulgence did take upon it to do has been so far from receiving any countenance from Courts of Justice hitherto that it has always been a fatal Objection against any particular Dispensation of it it was such as consequently eluded and frustrated the whole Law for that such a Dispensation is in effect a repeal of the Law it self And therefore in that great Case of Thomas and Sorrel in the Lord Vaughan's Reports where Dispensations with Penal Statutes are in some Cases allowed yet it was then agreed by all the Judges that the King had no power to Suspend a Law But to let you see how jealous the Parliament and in particular the House of Commons have ever been of trusting the King with an unlimited power of Dispensing with Penal Statutes with Non-obstantes appears also by several other Laws of great moment and in particular from the