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
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
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
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 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
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
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
Communitate Regni cannot mean as you would have them viz. That the Lords and Tenants in Capite had granted it for themselves and the Community of their Tenants by Military Service only who say you represented the whole Community of the Kingdom for then as I have already observed this needed not to have been granted in Parliament at all but at this rate no Tenants of those Abbeys and Monasteries which were a great many who did not hold in Capite would have payed any thing to this Tax nor yet the Kings Tenants who did not hold in Capite but of some Castle or Honour Nor lastly any Tenants in Socage who were very numerous in Kent as well as in other Counties as Mr. Taylour proves in his History of Gavâ—l-Kâ—nd so that if your Tenants in Capite and other under Tenants by Military Service had been then the Community of the whole Kingdom This Community had not consisted of above one half or at most a third part of the Kingdom But in my sense of this word Communitas here will be no difficulty at all for these Magnates mentioned in this Record being taken as I have proveâ— they often are for Knights of Shires then these words are thus to be understood viz. that all the Parties mentioned in this Record gave for themselves and the whole Community of the Kingdom consisting of all the Free holders of England who all contributed to the Marriage of the Kings Daughter according to their respective Estates and tho the sense of this word had been otherwise in this place yet it would not have contradicted my sense of the word Communitas which I do not aver always to signifie the Commons but when it comes immediately after the words Comites Barones as it does not in this Record you have now cited M. But pray tell me how this could be since the Record says expresly that this Aid was to be Raised by 40 s. upon every Knights Fee which could only extend to Tenants by Knights Service nor could this word Communitas here signifie the Commons as now understood since the Citizens and Burgesses are not at all mentioned who you know do at this day make up the greatest part of the Representatives of the Commons of England F. This proceeds from your not knowing or else not consiâ—ering the ancient manner of reckoning Estates and consequently of Taxing by Knights Fees not only Lands held by Military but Socage Tenure also as appears by those Writs of the 24th and 26th of Hen. III. as they are still upon the close Rolls being both almost the same word for word which I gave you at our last Meeting yet since you may have forgot them pray read them again Rex Vice-Comiti Northampton saluâ—em praecipimus tibi quod per totam ballivam etiam in singulis bonis villis similiter in pleno Comitatu tuo clamari faâ—ies quod omnes illi de Comitatu tuo qui tenent Feodum Militis integrum vel etiam minus quam Feodum integrum dum tamen de Tenemento suo tam Militari quam Socagio possint sistentari Milites non sunt siâ—ut Tenementa sus diligunt citra festum omnium Sanctorum Anno. Regni Nostr XXV Arma capiant se Milites â—iâ—ri faciant Where you may Note that all Men who held the value of a Knights Fee either by Military or Socage Tenure were liable to be made Knights provided they could maintain themselves of their Estates which could never have been had not the Custom of Reckoning and Taxing Estates of all sorts as well by Knights Service as otherwise according to the value of so many Knights Fees that is at 20â— per An. been then commonly used But as for your next Objection that the Citizens and Burgesses are not mentioned in this Record and so could not be comprehended under the words Communitas Regni this proves no more then that which will easily be granted you that this word Communitas used in your Record is there to be understood restrictively and according to the subject matter viz. the Community of Free-holders or Land-holders of the whose Kingdom only since this Tax being wholly upon Lands the Commons of Cities and Burroughs then called Communitates Civitatum Buâ—gorum whose Estates lay in Money or Goods could not be Taxed by Knights Fees nor do I doubt but that if we had the Records of that Parliament of the 18th of Edw. I. now left us which are lost it would appear that they also contributed to this Tax according to their Estates as they did in the 34th Year of this King to make the King 's Eldest Son a Knight As for your Record of the 20th of Edw. III. it is but the same in effect with this of the 30th of Edw. I. and the same answer will serve for both only I cannot but observe that whereas you have often asserted that this word Communitas did only signifie the Community of Tenants in Capite now you fall a Peg lower and it must at last take in the whole Community of Tenants by Knights Service whether in Capite or not M. Well then you gâ—ant that this word Communitas does not always signifie all the Commons of England as you supposed but farther that it must mean the Community of the Tenants in Military Service only Pâ—ay see this very Record of the 34th of Edw. I. which Mr. P. has given us at large in his Appendix which being long I shaâ—l tâ—ouble you with no more then what makes to our present purpose viz. that the King inâ—ending to make his Son Prince Edward a Kâ—ight Summoned the Arch-bishops Bishops Abbots Priors Earls Barons and other great Men of the whole Kingdom to appoint what Aid they would grant the King towards it and then it follows thus that the Prelates Earls Barons and others as also the Knights of Shires being mer treating together with deliberation upon this Matter consiâ—ering that an Aid was due to make his Son a Knight besides the burthen that lay upon they King by reason of the Scotch War at lengh they unanimously Domino Regni concâ—ssâ—runt pâ—o sâ— â—â—tâ Communitate Râ—gni â—ricesimam partem omnium Bunâ—â—um suorum â—â—mporalium mobilium for making his Son a Knight and toward his Expences of his War in Scotland Aâ—d then the Cives â—u genses Civit â—â—um ac Burgorum â—c caeteri de Dominiâ—s Râ—gis Congregati treating about the Premises and considering the burthens lying upon the King not mentioning any Aid for making his â—on Knight as not holding of the King by Knights-Fee oâ— Serâ—ice and therâ—fore none of the Community of the Kingdom nor liâ—ble to it Dâ—mino Râ—gâ— un inâ—mitâ—â— ob cauâ—as supra dictas concâ—sserunt Vic. simâ—m pariem bono 〈…〉 mobilium Here the Pâ—elates Earls Barons and great Men with the Knights of Shires consulted together and gave for themselves and the Community of the Kingdom a Thirtieth part of their
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
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
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
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
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
Citizen of London was de Assensu Praelatorum Comitum totius Communitatis Regni pardoned all Homicides The very like words are also used in the same Roll in the Act of Pardon granted to the City of London I shall trouble you but with one mâ—re in this Kings Reign but it is so remarkable I cannot omit it of the 34 th of this King and is to be found in the old Edition of Statutes Printed in French the Title begins thus Ceux sont les choses queux nostre Seigneur le Roy Prelats Seigneurs la Commune ount ordaines establéâ—s To conclude with the Reign of Richard the Second the like expression is found in the Parliament Roll of 5 th of Richard the Second where the Statutes begins thus Pur Commune prosit du Râ—yalmâ— d' Angleterre cient faiâ—es per nostre Seigneur le Roy Prelats Seigneurs la Commune de le Royalme esteantes en cest Parliament from the Titles to which two last Statutes I pray observe that the word le Commune is not only used for the Commons in the same sense as it was in the fâ—rmer Kings Reigns but also that these Statutes were made by the joint Assents of the King Lords and Commons So likewise in the same Roll are recited Concordiae sive Ordinationes factae de Communi Assâ—â—su Regis Procerum Magnatum Communitatis Regni Angliae which I give you to shew that the words Communitas le Commune always signifie the same thing in our Statuâ—es and Records viz. the Commons as now understood different from your great Lords and Tenants and if they are to be taken in this sense after the 18 th of Edward the First I would be glad if you could shew me any sufficient reason why they should not be so understood aâ— along before that time as well as in the 49 th of Henry the Third only M. Tho I grant that these words you mention are to be understood for the Commons as now taken in many Records and Acts of Parliament after the 18 th of Edward the First and therefore you need not to have taken the paâ—ns to have gone beyond that time yet notwithstanding I think I can prove to you by very good Authorities that the word Communitas which I grant is the same thing with le Commune in French tho put after the words Comites Barones does not signifie the Commons of England in general but the Community of the Tenant in Capite alone or at least the Community of all Tenants by Military Service and that as low as the Reign of Edward the Third but for proof of thiâ— I pray peruâ—e this Writ which the Doctor hath given us in his Answer to Mr. P. Rex Archiepiscopis Episcopis Abbatibus Priotibus Comitibus Baronibus Militibus omnibus aliâ—s de Comitatu Cantiae Salutem Sciatis quâ—d cum pâ—â—mo die Junii Anno Regni nostri Decimo octavo Praelati Comites Barones caeteri Magnâ—tes de Regno nostro concorditer pâ—o se pro tota Communitate ejusdem Regni in pleno Parliamento nostro nobis concesse unt Quadraginta solidos de singulis Feodis Militum in dicto Regno in Auxilium ad Primogenitam Filiam nostram Mariâ—andam c. Cujus quidem auxilii levationi faciendae pro Dictae Communitatis aisimento hucusque supersedimus gratioâ—è c. By this Record it is clear that such as pâ—id Scutage that is Forty Shiâ—â—ings for a Knights Fee were then the tota Regni Communitas and no others and of these the Tenants in Capite granted and paid it first for themselves and Tenants and then their Tenants in Military Service by vertue of the Kings Precept paid it to them again for so many Fees as they held of them so that this Tax being raised wholly upon Knights Fees must be granted only by those that held by Knights Service But further that the Communalte de Royaume the Community of the Kingdom as represented by the Tenants in Capite did still so continue as above mention'd till almost the middle of King Edward the Third's Reign is as clearly proved by this Record of that King Rex dilectis fidelibus â—uis Vicecomiti Wygorniae â—homae Bâ—ttâ—ler de Upton supeâ—â—abrinam Militi Thomae Cassy de Wych salutem â—â—â—atis quod cum in pleno Parliamento nostro apud Westmonasterium ad Diem Lunae proximo post Vestum Nativitatis Beatae Mariae Virginis proximo praeteritum tento Praelati Comites Barones Magnates de Regno nostro Angliae c. pâ—o se to a Communita e ejaâ—dem Regni nobis concesseâ—unt quadraginta solidos de singulâ—s â—eodiâ— Militum in Diâ—â—â— Regno Angliae c. so that the whole Community of England in this Record were Military Men such as held Knights Fees or parts of Knights Fees and such as paid Scutage and they were neither the ordinary Freemen or Free-holders nor the Multitude nor Rabâ—le F. I pray Sir give me leave to answer your Arguments from these Records as you â—ut them least I forget what you have said in the first place as to this Record of the 30th of Edw. I. which relates to a Tax given in the 18th Year of his Reign and recites an Aid of 40 s. upon every Knights Fee through the whole Kingdom to have been given by the Bâ—shops Earls Barons and other Magnates or great Men of the Kingdom in full Parliament for themselves and the whole Community thereof to Marry the King's Daughter and which Subsidy he had deferred to Levy till now and therefore because this was a Tax granted only upon Knights Fees that those only who payed this Scutage were then the Communitas or whole Body of the Kingdom which is no Argument at all since from this we may plainly collect the clean contrary for if none had been to pay to this Tax but those that held by Knights Service in Capite then the King would have had no need to have had it granted in Parliament since by the 14th Article of King Iohn's Charter he might have Taxed his Tenants in Capite for the Knighting of his Eldest Son and the Marriage of his Eldest Daughter without the Assent of the Common Council of the Kingdom and according to your Hypothesis and the Authorities you have brought to prove it these Tenants in Capite might also by the like reason have made their Tenants by Knights Service have Contributed to this Tax which yet you see they could not do without the consent of Parliament and therefore this Aid or Subsidy being granted in Parliament must needs extend to all the Lands in the whole Kingdom as well those that held by Knights Service as well as those that did not for it is not here said as in the Writ to the Sheriff of Sussex qui de nobis Tenent in Capite and then the words pro se â—ota
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
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
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
the Aldermen or Burgesses of Towns Represent those which we now call the Commons And supposing that then there were no Knights of Shires yet these being then the only Proprietors of any considerable Estates of Land in the Nation might very well represent all their Vâ—ssals or Vnder-Tenents as Tenents for years and at Will are at this day by the Knights of Shires tho they have no Votes at their Elâ—ction To conclude tho I grant that the King 's of England are the Fountain of that Honour which we call Peerage Yet it is only in Pursuance of that Ancient Constitution which their Ancestors brought out of Old Saxony and Normandy along with them as the firmest defence of Kingly Power against the Insolency and Encroachments of the Common or Meaner sort of People as well as Tyranny in their Princes And therefore in all Monarchies where there is no Hereditary Nobility the Prince hath no surer â—ay to maintain his Power than by Standing Armies to whose Humours and Pactions he is more Subject and is also more liable to be Murdered or Deposed by them when discontented with him than ever any limited Prince yet was or can be by his Nobility or People As I could shew you from a multitude of Examples not only from the Roman but Moorish Arabick and Turkish Histories and therefore to constitute a lasting stable limited Monarchy as ours is it must be according to the Model I have here Proposed M. I shall not contradict the latter part of your Discourse but I must freely tell you that if as you your self grant there were no Knights of Shires in the Saxon times I cannot see how those we call the vulgar or Commons of England had then any Representatives in the Great Council since those Thanes or Lords of Mannors whom you suppose to have Represented their Tenants or Vassals were never chosen by them and consequently could not properly be their Representatives But I think it will be easy enough to prove that none of your Inferior or middle Thanes but only the Chiâ—f or Superior had places in those Assemblies So that these Feudal Thanes or such as held of the King in Chief by Military Service were of the sam Kind with them that were after the Norman times Honorary or Parliamentary Barons and their Thainlands alone were the Honorary Thainlands and such as were afterwards Parliamentary Baronies Nor can I find any Footsteps in our Ancient English Histories of Cities and Buroughs sending any Representatives to those Great Councils So that admit I should own at present that the Bishops and some Great Abbots had from the first Setling of Christianity in this Island an Indisputable place in the Great Councils and likewise that the Earls Aldermen or Great Nobility had also Votes in those Assemblies and that the Chief Thanes or less Nobles had also their places there by reason of the Tenure of their Estates yet certainly the House of Commons was of a much later Date and owed its being either to the Grace and Favour of our Kings of the Norman Race or else to those that had Vsurp't their Power And this I think Dr. Brady hath very well proved against Mr. Petyt and I think I could convince you also of the Truth of it by his as well as other Arguments were it not now too late to enter upon so long a Subject F. Therefore pray let us defer any further Discourse of this Question till the next time we meet wherein I hope I may shew you that if you owe that Opinion to the Doctors Arguments he hath led you into a very gross mistake And I shall only at present take my leave of you and bid you good night M. I wish you the like ADVERTISEMENT A Brief Discourse of the Law of Nature according to the Principles and Method laid down in the Reverend Dr. Cumberland's now Lord Bishop of Peterborough's Latin Treatise on that Subject As also his Confutations of Mr. Hobb's Principles put into another Method With the Right Reverend Author's Approbation FINIS Bibliotheca Politica Or A DISCOURSE By way of DIALOGUE WHETHER The Commons of England represented by Knights Citizens and Burgesses in Parliament were one of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. Collected out of the most Approved Authors both Ancient and Modern Dialogue the Sixth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth and Fifth Dialogues 1693. Authors made use of and how denoted 1. Mr. Pettit's Ancient Right of the Commons of England Asserted P.R.C. 2. Dr. Brady's Answer thereunto Edit in Folio B. A. P. 3. The said Doctor 's Glossary at the end of it B. G. 4. Anamadversions upon Treatise Ianii Anglorum forces novo B. A. I. 5. The Author of Ianus c. his Confutation of the said Doctor entituled Ianus Anglorum ab Antique I. A. A. 6. Dr. Brady's Preface to his History B. P. H. 7. Dr. Iohnston's Excellency of Monarchical Government I. E. M. G. THE PREFACE TO THE READER HAving in my last Discourse treated of the Legislative Power of this Kingdom as also the Ancient Constitution of our English Government by great Councils or Parliaments the former of which questions I should scarce have dwelt so long upon had I then known of a Learned Treatise now 〈◊〉 to be publisht on that Subject I am at last arrived at the hardest and most important though perhaps in the Iudgment of some the driest and most unpleasant part of my Task viz. Who were anciently the constituent Parts or Orders of Men who made up thâ—se Assemblies That the Bishops Abbots Priors Earls and Chief Thanes or Barons were Principal Members is granted by all Parties but whether there were from the very Original of these Great Councils nay till long after the coming in of the Normans any Representatives for the Commons as we now call them in distinction from the Lords Spiritual and Temporal is a doubt which as it was for ought I can find first raised by an Italian who writ the History of England in the last Age so hath it been continued by some Antiquaries of our present Age though the first that ever appeared to prove the contrary was a Treatise published by James Howel in the Cottoni Posthuma under the Name of Sir Robert Cotton about 1654. but whether it was his or no I know not only it was supposed to be so by Mr. Pryn in his Preface to the Collection of Records which he published under the Name of the same Author in 1657. and after him this Notion of the Bishops Lords and other Tenants in Capite being the Sole Representative for the whole Nation in those Councils was next printed in the Second part of Sir Henry Spelman's Glossary Tit. Parliamentum where King John's Charter is made use of at the main Argument to prove that Assertion The next who appear'd in Prâ—nt on
farther confirmed by several undeniable Authorities wherein by the Communitas Populi must be understood not the Community of the People or Commons but the whole Body of the Less Tenants in Capite But to give you an answer why the Word Populus could not comprehend all sorts of people among the Saxons as it did among the Romans but only the Nobility who were then properly speaking the only Freemen is this that none but the Nobility possessed any Lands in Fee-simple all the rest of the meaner sort of people then called Cheorl Folk holding theirs in Villanage under their Lords or Thanes being no better than meer Villains or Costagers and who were all bound to the Good Behaviour every tenth Family being bound one for another in the Sheriff's Torne or Court of Franc-Pledge under their Head or Tenth Man called the Tything-man who was to answer for them So that the common People of England were not such a Free People nor had any share in the Government as some suppose there being I believe no such persons as our Yeomen or Faâ—â—â—ers in those days F. Tho perhaps this Law might very well be transcribed from some old Copâ—â— of King Aethelbert's Laws not now extant and in which there might be the Word Thanes instead of Baronibus which is but a Translation of it in the sense iâ— which it was used not long after the Conquest Nor is it true which you affirm that the Word Barones was never in use before the coming in of the Normans in ancient Charters as I shall prove to you by this Charter of King Edgar to the Abby of Westminster containing a confirmation of their ancient Charters and Priviledges collected 〈◊〉 the aforesaid Sulcardus a Monk of Westminster as it is to be found in the Cottonian Library the Charter it self is long but concludes thus In Concilio habito infra Basilicam Westmonast Praesidente 〈◊〉 Filio suo Edwardo Archiepo Dunstano universis Episcopâ—â— Baronibus suis where you may see that the Word was not unknown before the time of William I. and I could give you more Instances of other Kings Charters where the same Word is used before the Conquest were it worth the while to trouble you with them And so likewise Populus for People or Folk in the Saxon Yet take it as you suppose to have been writ not long before the time Hoveden writ his History which was above 80 years before the 49th of Hen. III. This Author or whoever else added this Passage to this Law about Tythes did then suppose that according to the custom then used the People had Representatives in those Assemblies which I shall prove from your own sense of these words for if the word Populus signifies here another sort of men different from the Lords then this word Populus must necessarily signifie some that were Commons and not Lords by your own concession and who also must represent others besides themselves but it is highly improbable that by this word Populus should be meant the Communitas Angliae or the Communitas Baronum for then since the word Baronum would have included all the Tenents in capite both Great and Small to what purpose should the word Populus have been added at all Therefore I am so far from believing this way of expressing the several Estates of the Kingdom to have been a Monkish Blunder as you suppose that â—t was rather a common and ordinary way of Expression among the Writers of those Timeâ— as well in Records as Histories who then very well knew the People or Commons to be an Estate or Constituent part of the Common Council of the Kingdom quite different from the Lords and in which sense it is recited in an ancient Charter of King Iohn That He being divorced the New Queen was crowned de communi assensu concordi Voluntate Archiepiscoporum Episcoporum Comitum Baronum Cleri Pâ—puli totius Regni Where by Clerus it is plain must be meant the Inferior Clergy represented by their Proxies in this Great Synod or Parliament and by Populus was understood the People or Commons likewise present by their Representatives or else the Words Clerus and Populus had been idle Tantologies in this Record And in the like sense it is also used by Matt. Paris in the 9th of Hen III. presentibus Clero Populo cum Magnatibus Regionis Where this Author makes a plain distinction between the Magnates and the Populus which had been altogether in vain if the Word Magnates would have comprehended all your Greater or Less Barons or Tenants in capite But I shall in the next place proceed to that Great Synod or Council that was called by King Edward the Elder Anno Dom. 905. and is mentioned by Simeon of Durham and other Authors quoted by Arch-Bishop Parker the Compiler of the British Antiquities in these Words Plegmundus Cantuariensis Archiepiscopus â—â—â— cum Rege Magnifico cognominato Edwardo seniore Consilium Magnum Episcoporum Abbatum Fidelium Procerum Populorum c. convocavit Which Synod or Council was called to divide the large Dioceses of Winchester and Sherbarn into five other as I have already told you where you may plainly see the Words Fidelium Populorum put distinct from the Word Proceres if we take that Word to signifie only the Greater Nobility I shall now conclude with a few Words in reply to your Answer why the Word Populus could not among the Saxons take in all sorts of People as well as amongst the Romans for I cannot take it as a satisfactory answer for these Reasons 1. Because tho I should grant that the Vulgar sort of People were greater Slaves than they are now and that they had no hereditary Properties in their Estates but at the will of their Lords yet does it therefore follow that all the Freemen of the Kingdom were Noblemen or Gentlemen or else Villains as now understood since Nitardus tells us in the place above mentioned that there were three sorts of people among the Saxons Edelingi Frilingâ— Lazzi i e. Gentlemen or Noblemen Freemen and Slaves or Villains and this middle sort of men might also possess Lands in Allodio or free-Free-Tenure tho they did also depend upon other greater men for Protection and seem to be those who were after the Conquest called in Doomsday Book Commendaâ—â— i. e. such who tho they lived under the Protection and within the District of some Great Men Lord or Patron yet as Sir Hen. Spelman tells us were free both as to their Persons and Estates not as sworn to or holding of any but the King And besides these there were also great Bodies of men in Cities and Burgh Towns and those very considerable for Estates and other Riches who tho not nobly born and yet being Freemen it was but reasonable that they should have their Representatives in Parliament as well as the former M. I shall not at present
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
in these two Quotations since in that out of Camden you cannot deny but he hath truly quoted that Author as it was in his First Edition and if he afterwares altered it it may very well be questioned whether he did not add the Word Superiores rather out of fear of displeasing the Greater Nobility whom that Quotation had before Shockt than out of any sense of his being in the Wrong as it appears by the Words immediately following when he tells us out of a nameless Manuscript Author That Henry III. out of so great a multitude of Barons which was seditious and turbulent called the best and chiefest of them only by Writ to Parliament By which it plainly appears that he supposed all those Less Barons or Tenants in capite tho no Lords as now understood who were thus excluded to have been only Nominal and not Real Barons and if so Commoners or else he must extend the Peerage of England to at least Three or Four Thousand Persons For so many Tenents in capite might very well be at that time The same I may likewise say as to the Quotation out of Mr. Selden for by the Words quibus peculiaris in ordinum Comitiis locus est 't is plain he supposed that all the rest of those Tenents in capite were but meer Commoners yet he no where affirms that none but these appeared in Parliament for all the Commons of England for he very well knew the unreasonableness of that Supposition Since besides these Barons or Tenants in capite Bracton in his first Book tells us of divers other Orders of Men of Great Dignity and Power in this Kingdom about the time when you suppose this marvellous Alteration to have happened His Words are these Et sub iis viz. Regibus Duces Comites Barones Magnates sive vavassores Milites etiam Liberi Villani deversa Potestates sub Rege constitutae and a little farther sunt alti Potentes sub Rege qui dicuntur Barones hoc est Robur belli sunt alii qui dicuntur Vavassores viri 〈◊〉 Dignitatis From which Words I desire you to observe that he here makes the Magnates and the Vavassores or Feudatory Tenants to be all one and also ranks them before the Milites Now whether these Vavassores and Milites who did not all hold of the King in capite were men of so great Dignity and Power as these whom he here reckons immediately after the Earls and Great Barons should have no Votes in Parliament neither by themselves nor their Representatives is altogether improbable And agreeable to this of Bracton Du Fresne in his Lexicon Tit. Vavasor tells us that Vavassorum duo erant ordines sub majorum apellatione implectuntur qui Barones apellantur sub â—norum vero quos vulgò Vavassores dicunt ut leges Henrici I. Reg. Ang. Thaines minores respectu Thainorum majorum qui Baronibus aequiparantur But that these Lesser Thanes or Vavassors were also stiled Barones Sir H. Spelman tells us expresly in his Glossary Tit. Baro etiam Barones Comitum Procer umque hoc est Barones subalterni Baronum Barones sâ—pissime leguntur and of this he gives us many Examples and particularly of the Chief Tenants of the Abby of Ramsey above mentioned So likewise the same Author a Leaf or two farther speaking of the Barones of London mentioned in the Charter of King Henry I. understands them pro civibus praestantioribus qui socnas suas consuetudines i. e. Curias habuerunt Privilegia eorum instar qui in Comitatu Barones Comitatus dicuntur c. Nor did this Title of Barones extend to London alone but he also immediately tells us in the same place Sic Barones de Ebaraco de Cestria de Warwico de Soe Feversham plurium Villaram Regiis Privilegiis insignium cum in Anglia tum in Gallia c. and that Barons of Counties were no more than Lords of Mannors I have just now proved for Socna means no more than a Court Baron or Court of a Mannor So that here arises a plain distinction between the Barones Regis the King 's Great Barons or Tenants in capite and these Lesser Barons we now are here speaking of called Medmesse Thegnes and Burgh Thegnes by the Saxons till they 〈◊〉 on the Word Parliamentum to signifie the Common Council of the Kingdom who tho no Peers yet were Barones Regni Barons or Noblemen of the Kingdom according to the general acceptation of the Word Nobiles in that Age and is such made up the Body of the Baronage called by Matt. Paris and other Authors Baronagium or Communitas Baronagit totius Angliae M. I see you do all you can from the equivocal use of the Word Barones to croud in new and unknown men into the Great Council of the Kingdom viz. your Barons of Counties Cities and Towns whom since you dare not affirm there were then any Knights of Shires you suppose to have served instead of them and these you would have to be not Barones Regis but Regni or Terrae forsooth i. e. of the Land or Kingdom whereas we never had any True Barones held by mean Tenures here in England this if you deny you must deny all History and all our Ancient Laws and Law-Books too and if you grant it you must confess that every Baron was a Tenant in capite and by your own Concession he must then be the King's Baron or Baro Regis I grant indeed there were Nominal or Titular Barons such as you mention many in those Times such as were Tenants to Great Lords Bishops or Abbots of whom we find frequent mention in our Ancient Histories Records and Charters But these are not the men who had ever any Place in our Great Councils and I desire you would prove to me that ever they appeared there before the Times I assign and I would also have you inform your self of the Gentlemen of whom you borrow this Notion if they can prove that there were any such kind of Tenure as Tenura de Terra or de Regno or whether there was ever any man that held an Estate de Regno Whether forfeitures or Escheats were to the Kingdom And whether Fealty was sworn or Homage done to the Kingdom Or whether an Earl was invested or Girt with the Sword of the County by the Kingdom Or whether the ancient Ceremonies used at the Creations of Earls and Barons were done by the Kingdom Thus all the Barons of England held of the King and thus all these things were performed and done to our Ancient Kings and by them which are most manifest Notes of the King 's immediate Jurisdiction over the Barons and that they were his Tenants in capite and by consequence his Barons only which you cannot deny and of which Tenants in capite the Earls and Greater Barons always created by Investiture of Robes or other Ceremonies were summoned by particular Write
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
Concilium Regni and gave this aid of a 40th part of their Goods viz. The Arch-bishops Bishops Abbots Priors Inferiour Landed Clergymen the Earls Barons Knights Freemen c. it being a Subsidy granted upon Goods and not laid upon Land and that it may fully express all the Parties to the Grant the Record tells us there were also the Villani the Inhabitants of every Village or Burrough Town And to let you see that our Ancient Manuscript Chronicles of this Age give the same sense to the expressions of this Record and that in the same Terms Pray Read this Quotation which a Friend of mine took out of an Ancient Manuscript called Chronica Monasterii de Hageny in the Cottonian â— Library as Ancient as the times are we are now treating on the words are these Anno 17. Henrici Regis 4 ti where note that the year is mistaken for 16. but the King is the same Henry the Third being often in that Age called the Fourth in respect to King Henry Son to Henry the Second Idem Rex accepit ab Archiepis Epis. Abbatibus Prioribus Clericiâ— terras habentibus quae ad Eccles. sua non pertinent ab Comitibus Baronibus Militibus Liberis hominibus villanis de Regno Angliae in Auxilium quadragesimam partem omnium mobilium suorum And to let you see that this Author makes a plain distinction between the Tenants in Capite and the rest of the Kingdom pray observe what immediately follows in the same place ut Anno. viz. 8vo A quo communi Assensu voluntate Magnatum suorum quam aliorum laicorum totius Regni quintam decimam Catalorum suorum universaliter accepit Where note by accepit is still to be understood he received it after the Peoples grant of it as before in the Record of the 16. and that by Magnatum suorum is meant the great Lords and Tenants in Capite and by aliorum Laicorum put here as distinct from them all other Orders or Degrees of men Now pray how could these Taxes upon the Goods of the whole Kingdom have ever been given but by the general Representatives thereof since all could not be there in Person unless you can shew me that men in those days held their Goods and Chatels by Tenure in Capite M. I think you and I may so far agree that this Council I instanced in consisted of Tenants in Capite only and likewise that they imposed Scutage upon no others than their Tenants by Knight-service yet doth it not therefore follow that they were not the Common Council of the Kingdom or might not have Tax'd all others though they were not their immediate Tenants as well as they did those that were And therefore I am not convinc'd but that these Persons mentioned in the Records you have cited which you grant constituted a Common Council of the Kingdom were no other than the same Tenants in Capite already mentioned for as for the Fideles mentioned in the Record of 4 th Hen. 3. I think the Dr. hath very well proved both in his answer to Mr. P. as also in his Glossary that they were no other than the King's Tenants in Capite and for this pray consider the Authorities he there gives us For though I agree with you that the word Fideles doth sometimes signifie generally all those who are under the Power or Subjection of their Prince Yet Hottoman also tells us That Fideles interdum specialiter dicuntur iidem qui Vassalli Qui Feudo accepto in Patroni Fide Clientelâ— sunt vicissimque suam ei certi obsequii nomine Fidem astrinxerunt and in this sense I suppose this word is to be taken in most of our Histories and Records I shall therefore give you one which will sufficiently clear the true signification not only of the word Fideles but of Liberi Homines too It is in William Malmâ—bury in these words Williâ—mo Filio suo Cum vix 12. Annorum esset omnes Liberi Homines c. Cujuscunque ordinis Dignitatis cujuscunque Domini Fideles Manibus Sacramento se dedere coacti sunt By which you may see that by the words Liberi Homines Fideles are here meant only the Feudal or Military Tenants either of the King or of any other Lord And to prove it farther by Records pray see here â—hose that the Dr. hath given us in the same place The first is that of the Patent Rolls of the 15. of King Iohn Rex Baronibus Militibus omnibus Fidelibus totius Angliae Salutem They were to hear what the Bishop of Winchester was to say to them about the Releasing the Interdict and that these Milites and Fideles were only the King's Tenants in Capite is clear from the latter part of this Record Vnicuique vestrum si fieri potest Literas nostras super hoc transmissemus sed Negotium majori Festiâ—atione c. Teste Meipso apud Rupel c. The King had writ to them all particularly but that the business required greater haste It seems before the granting of Magna Charta this King sent special Summons and particular Letters to his Barons and other Tenants in Capite to meet upon any occasion So likewise in these Writs there mentioned to the Tenants in Capite of several Counties as they are found in the close Roll there cited Rex omnibus Comitibus Baronibus Militibus aliis fidelibus suiâ— de Com. Ebor. Northumbr Cumbr. c. Vobis mandamus quod Prompti sitis Parâ—ti cum Equis Armis c. These were the Feudataries and Tenants in Military Service But to speak somewhat of the Clerici Terras habentes c. as also of the Liberi Homines Villani mentioned in the Record of 16 Hen. 3. you have now cited 1. I cannot allow your Version of those words Clerici Terras habentes qua ad Ecclesias suas non pertinent by Inferior Landed Clergy-men since 't is more than you can make out for I take them to be such Clerks as had Mannors and Free or Military Fees belonging to their Benefices and that held of the King in Capite the Fee whereof was in the Crown and not in the church and therefore did not belong to it But Mat. Paris fol. 377. informs us better who they were that gave this Tax when he speaks concerning this very Council ad Coloquium coram Rege convenerunt Episcopi aliarum Ecclesiarum Praelati cum Proceribus Regni concessa est Regi quadragesima pars honorum Now what the Liberi Homines were in this Record you have cited we may easily guess from the other Records I have made use of in 19 Hen. 3. viz. such of those Omnes alii qui de nobis Tenent in Capite which were not Milites in a strict sense or had not received the Order of Knighthood And I shall make out this sense of the words as also of
Goods and the Citizens Burgesses and Tenaâ—ts of the King's Demeasâ—s which weâ—e likewise none of the Community of the Kingdom gave a Twentieth part for if they had been of the Community they had â—aid a Thirtieth part as well as the rest and therefore 〈◊〉 most certain that even at this time viz. the 34th of Edw. I. they weâ—e not taken to be part of the Community of the Kingdom and that the Tenant in Câ—pite Serjeanty or at least the Military Men and Tenants in Military Seâ—vice were only such F. As to this last Record you have cited I need give you no other answer to it than a like Writ of the 35 th of this King which the â—â—ctor himself hath also given us in his â—lâ—ssaâ—y which I shall here read you at large together with his Learned Comment upon it it is for the Collecting of this twentieth and thirtieth part granted in the thirty fourth you have now mentioned tâ—e Writ runs this Militibus libeâ—is hominibus â—oti Communitati Comitatus Middlesex tum inâ—ra Libertaâ—â—s quam â—xtra sâ—lutem cum Archiâ—piâ—coâ—i Episâ—â—pi Abbates Priores Comites Barâ—nes Milites Labâ—ri Homines ac Communitâ—tâ—s Coâ—itatuum Regni nostri Tricesimâ—m â—m â—um Boâ—orum suorum tâ—mporâ—lium mâ—bilium Civâ—sque Burgenâ—â—s ac Communitaâ—â—s omnium Civitâ—â—â—m Burgorum ejusdâ—m Regâ—i 〈◊〉 Tenentes de Dâ—minion nosâ—â—is Vicesimâ—m Bonorum suorum mobilium curiâ—liter concessâ—runt gratantur c. And least we should happen to mistake the meaning of these words thâ— Doctor himself has furnish'd us with this Learned Comment upon them as follows in the same place It is said in this Record that the Archbishops Bishops Earls Barons Abbots Priors Knâ—ghts and Freemen and Communities of Counties gave a Thirtieth part of their Goods as if they had been all Members and sat in this Parliament And so it is said of the Cities and Burghs that the Citizens Burgesses and the Communities of the Cities and Burghs gave a Twentieth part of their Moveables as if they had been all there But these words signifie no more than that the Knights and Freemen gave by their Representatives and that the Communities of Counties and the Citizens and Burgesses and Communities of Cities and Burghs gave by their Representatives as is most clear from the Writ of Expences for the Knights of Lincoln-shire and so consequently for the rest Now I desire you would tell me whether there can be a plainer Record against the Doctors opinion than this for in the first place who were these Knights Freemen and Commons who granted this 26 th and 30 th part of their Moveables in the 34 th year of this King but the Knights Citizens and Burgesses the Lawful Representatives of the whole Kingdom in General as well those who held in Capite or else by inferior Military Service as those that held by any other Tenure or who were these Representatives but men chosen out of all soâ—ts aâ— well those that held by Knights Service as those that did not unless you can prove as you have not done hitherto that all the Cities and Buroughs in England held of the King in Capite and that none but Tenants in Capite or Military Service at least were chosen either for Counties or Cities and though I find your Doctor has an utter aversion to the word Commons and theâ—efore will needs translate the word Communitates by Communities and not Commons yet if you were to render those words the Commons of the Counâ—ies Cities and Buroughs into our Law-Latin I desire to know what other words you could make use of but these in this Record viz. Communitaâ—es 〈◊〉 Civiâ—atum Burgâ—rum So that to conclude if in the 28 34 and 35 th of Edward the First aâ—l the Commons gave by the same Represâ—ntatâ—ves as they do now I can see no reason why they might not do so too thirty or forty years before that time and pray take notice also that here the Tenants in Ancient Demeâ—n gave likewise by themselves and could not be charged by the Knights of Shires And therefore as Mr. Lâ—mbard in his Archeâ—on very well observes this Prescription of not being chargeable with the rest of the County must be very ancient siâ—ce theâ—e was no Land at that time reckon'd as Ancient Demesne which had not belonged to the â—rown before the making of Dooms-day Book M. I must confess what you have now said concerning the constant use of the words Communitâ—s and 〈◊〉 Câ—mmune coming after Comiâ—es and Barones to express the Commons in Parliament in our Statutes and Records would weâ—gh much with me had I not good reason to believe there were no such thing as Commons in Parliament in the sense now taken before the 49 th of Henry the Third and from which time I suppose it was discontinued â—till the 18 th of Edward the First for which I can give you very good proofs when it comes to my turn but in the mean time pray shew me by any Record or Statute that there were any Knights Citizens and Burgesses Summoned to Parliament till the times I allow for in the first place you cannot shew me any mention of Commons in the Plural Number in any old Statute before Edward the First 's time and as for the words Communitas and le Commune which I grant were ofâ—en used to express the Commons after that time your self own they are equivocal and therefore when put after the Earls and Barons in the Instances you have given may signifie the Community of the smaller Tenants in Capite which were the only Representatives of the Commons that appeared in Parliament in those days and I am the more inclineâ— to be of this opinion because I have searched the old Statutes very exactly and cannot find any mention of the word Commons in the Plural much less of Knights Citizens or Burgesses till the Statute of 34 th of Edward the First 〈◊〉 Tallagio nâ—n concedâ—â—do made in the 34 th of Edward the First wherein I grant they are expressly mentioned and as for Writs of Summons you can produce none till the 23 d. of this King to Summon them to Parliament though I shall shew one by and by that the Doctor has found out of the 18 th of Edward the First whereby he proves they were then Summoned after about twenty-six years discontinuance therefore pray shew me if you can by any sufficient proof that they were there in Henry the Third's Reign except once or in Edward the 1 st's till the 18 th F. I confess your Doctor has not only exâ—eeded all other men but himself too in this rare discovery for whereas in his first Edition of his Answer to Mr. Petyâ—'s Book he was content to follow Sir William Dugdale and make the Commons to have been first Summoned to Parliament in the 49 th of Henry the Third and to have commenced by Mâ—â—ford's Rebellion and so to have still
without all the rest of their Peers divers of whom it seems the King had for some reasons then omitted to Summon But as for your instance of the Barons Peers or alios Magnates which were somtimes Summoned and sametimes omitted in the Reigns of our three Edwards You do well to put in that it was after the times that the Commons were a third Estate for indeed it was only after that the Tenants in Capite had left off making a distinct Council by themselve which I suppose was about the end of Henry III. Reign and then it is true the King called several of these Tenants in Capite as also others that were not so by Writ to the House of Lords as Pares Baronum i. e. not as real Barons but Barons-Peers since a baâ—e Summons by Writ did not as yet nor long after vest a Peerage in their Heirs so that upon the whole matter I see no reason from any thing you have urged from the example of Scotland to make me change my opinion that the Tenants in Capite were anciently the sole Representatives either of this or that whole Nation in Parliament for pray take Notice that I do not find the Tenants in Capite so much as mentioned in the ancient Statutes of that Kingdom or Charters of their Kings as the Common Council or Parliament of Scotland before the Reign of King Robert III. which was but late in Comparison of the antiquity of those Councils in that Kingdom M. I could say more as to the Antiquity of the Tenants in Capite their coming to Parliament as the sole Reprensentatives of the Nation before the time you mention but it grows late and therefore I shall wave it at present and so shall only proceed to remark that great part of the Errour of the Gentlemen of your Opinion proceeds from this false ground that you suppose that the Parliaments both of England and Scotland were a perfect Representative Body of all the Free-houlders and Freemen of those Kingdoms which is a meer Chymera for in the first place if we will consider it never was nor indeed is so at this day since you your self must acknowledge that all Copy-holders and Lease-holders under Forty Shilling a Year all Freemen in Towns Corporate where the Elections lies wholly in the Major and Aldermen or Common Council and lastly all that will not pay Scot and Lot in divers Burrough Towns are utterly excluded from giving their Votes in the choice of Parliament Men and consequently from having any Representatives in Parliament though sure as much Freemen as the rest of the Kingdom and this either by general Statutes or else by the particular Charters and Customs of those Cities Towns and Burroughs all which are lookt upon as good and lawful Representatives of those Cities and Burroughs so that I am clearly of the Doctor 's Opinion that the Tenants in Capite as well those who were Barons as those that were not only represented themselves and not the Commons as being as you truly observe never chosen by the People and as no Man can believe that a great Lord or Bishop could Represent his Mesne Tenants so neither could the smaller Tenants in Capite who were no Barons be properly said to represent theirs and yet these might according to the Custom of Feudal Tenures and the Power they then had over their Tenants Estates very well make Laws for them and Tax them at their pleasures because the main interest and strength of the Kingdom lay almost wholly in them and these as the Doctor very well observes having the Power of this or any other Nation de facto always did make Laws for and Tax the rest of the People But to say somewhat to the Authorities you have brought from the County Palatines of Chester and Durham I know not what old Priviledges they might pretend to of not being forced to give Voluntary Aids or Subsidies of their Moveable Goods without their consents yet this much I think may be made out that as for all Land Taxes and the general Laws and Statutes of the Kingdom they were as much bound by the one and as much liable to pay to the other as the rest of the Subjects of England or else how came they afterwards to be bound by our general Statutes at all as certainly they were from all times since the Conquest though Chester had no Representatives in Parliament till the Reign of Henry VIII and Durham had none till our times F. You Gentlemen who hold this general notion of Tenants in Capite are so intoxicated with it that you do not care what absurdities or contradictions you fall into provided you may maintain your dear opinion as I shall shew you by and by But first let me tell you your Reply to what I have now said is very fallacious and in some points mistaken as to the matter of Fact For in the first place I doubt not but our Common Councils or Parliament were in their first institution the main Body or Representative of all the Freemen of the Nation and though it may by long continuance of time to deviate from that Institution yet that it is to be attributed either to some prevailing Custom or else positive Law to the contrâ—ry for it is certain that in the Saxon times all the Free holders of England had a right of coming to Parliament in Person and hence it is that Liber Tenens Liber Homo Ingenuus were Synonimous and of the same signification as I have proved from Sir Henry Spelman's Comment in his Glossary upon those words and hence it is that the Members of those Councils were so numerous as they were in those times and long after till they became so vast and unmanageable that they were fain by degrees to pitch upon this method of sending Knights of Shires to represent them which is certainly a very ancient Institution since the Tenants in Ancient Demean claimed to be exempted from the Expences of Knights of the Shires by Pâ—escâ—iption as I shall shew you more particularly by and by and likewise since all Riches consisted in those days in Land or else in Stock or Trade therefore the Cities and Burroughs and Towns by reason of their Riches had always a share in the Legislative Power as well as in giving of Taxes and since all such Citizens and Burgesses not being able to come in Person as the Free-holders could were represented either by their chief Magistrates called their Aldermen or else by Burgesses of their own chusing as at this day so that all Freedom or Ingenuity being in this as in all other Common-wealths reckon per censum by the Estates of the owners our Common Councils were and that truly the Representatives not only of the Estates but Persons of all the Freemen of the Nation for I am so far of the Doctor 's Opinion that the Cheorl Folk as they were then termed were little better than the Scotch Vassals or
Men of the Kingdom had then in full Parliament on the first of Iune granted him 40 s. on every Knights Fee to Marry his Daughter and it thence also appears that tho this Tax is said to be given for themselves and the whole Community of the Kingdom yet it was by the Community of Tenants in Capite alone because it was to be raised wholly upon Knights Fees so that hitherto in this Kings Reign there appears nothing that can plainly evince either the Summoning or being of any Commons in Parliament as now understood we are at least left at great uncertainties nay in my Opinion the proof is more strong on the Negative that there were none F. I wonder you should mention this Writ any more since I have already confuted the Doctors notion about it and proved that it was a general Tax granted by the Parliament upon the whole Kingdom and not laid either by or upon the Community of the Tenants in Capite alone nor does the way of Taxing by 40s upon every Knights Fee at all prove it for if it is to be understood of Lands only held by Knights Service then this Tax could not have extended to any other Estates as certainly it did since the King could by King Iohn's Charter have forced his Tenants in Capite to grant him an Aid towards this Marriage of his Daughter and if what you say be true could also have made all the Mesne Tenants of the Tenants in Capite to have contributed to it according to the Knights Fees they held and this without calling a Parliament at aâ— therefore pray give some better Authority then this for Iâ—e assure you I am not at all satisfied with it M. I will now give you the Writ the Doctor has discovered and by which it will plainly appear that this Tax granted in the 18th of this Kings Reign was given before ever the Commons were Summoned to it and for this the Learned Doctor has found out a loose bundle of Writs of this year directed to the Sheriffs of most Counties of England and they are the ancientest Extant or perhaps that ever were for in probability the calling of Knights Citizens and Burgesses according to that Example was discontinued from the 49th of Hen. III. unto this time by which two or three Knights were directed to be chosen for each County pray read the Writ it self since I look upon it as the first Pattern of this kind that of the 49th of Henry III. seeming to have been Written in haste without those Forms that were afterwards required in Writs of this kind and particularly in this Edwardus Dei Gratiâ Rex Angliae Dominus Hiberniae Dux Aquiâ—aniae Vice-comisi Westmâ—rlandiae Salutem Cum per Comites Barones quosdam alios de Proceribus Regni Nostri nuper fuisseâ—us super quibusdam Speciâ—liter requisiti super quibus tam cum iâ—sis quam cum aliis de Comitatibus Regni illius Colloquium haâ—ere volumus Tyactatâ—m tibi praecipimus quod duos vâ—l tres de Diâ—cretioribuâ— ad laborandum potentioribus Militibus de Comitatu praedicto â—ine delatione Eligi eos ad nes usque West monasterium venire facias ita quod sint ibidem à die Sancti Iohannis Bapt. prox futur in tres Septimanes ad ultimum cum plena potestate pro se Communiâ—ate Comitat. praedicti adconsulendum consentienoum pro se Communitate illâ hiis quae Comites Barones Pro. ere 's praedicti tunc dixerine concordanda habeas ibi hâ—c Breve Teste meipso apud Westmonast 14 die Jun. Anno. Regni Nostri 18. Whereby you may see in the first place that there was yet no certain number of Knights of Shires settled who were to be Summoned to appear at this Parliament And you may in the next place remember from a before mentioned Record of the 30th Ed. I. that on the first of this Month the King had Scutage then given him in full Parliament and now Fourteen days after at the Instance of the Earls Barons and other great Men of the Kingdom upon certain matters by them moved and propounded to him He Issued His Writs of Summons to the Sheriffâ— of the several Counties to cause to be chosen two or three Knights of each Counties to come to him at Westminster three Weeks after St. Iohn Baptist at farthest We may also further observe from this Writ that it is most probable though it is not here absolutely said so that the King was moved by the Earls Barons and great Men of the Kingdom to call these Knights to this Parliament and that as this Writ is the first to be found after that of the 49th of Henry III. so it really was the first Writ of Summons after that time for the Election of Knights to represent the several Counties In the next place that there could â—e no Citizens nor Burgesses chosen or sent to this Parliament by Vertue of this Writ as they were afterwards by directions contained in the Writs sent to the Sheriffs for Electing Knights of the Shires Lastly that by this Writ the Knights were to come to the King at Westminster three Weeks after St. Iohn Baptist at furthest which was the 15th of Iuly also that in the same year between the time of the date of the Writ and the time appointed for Meeting of the Knights The Statute of Westminster the third was made as may appear by this Clause at the beginning Dominus Rex in Parliamento suo apud West monasterium post Pascha-Aâ—o Regni sui Decimo octavo videlicet in Quindena Sancti Iohannis Baptist. that is the 8th of Iuly ad Instantiam Magnatum Regni sui Concessiâ— Providit Statuit Quod de caetero liceat unicuique libero homini c. So that this was the same full Parliament which gave the King Scutage on the first of Iune and then the King and Barons without the Commons made this Statute or the Knights had another Summons after the Date of this Writ for before that they were not in Parliament or the Knights came a Week before they had need to have done but neither of the latter are probable seeing the Knights then were great Husbands of their time and Expences and were not very forward to undertake this Service as being constantly bound with or engaged by Sureties or Manucaptors for the performance of it and their appearance in Parliament and therefore it seems reasonable to conclude that this Law was made without them and before their coming to Parliament So much of this Writ from which as well as divers following Writs and other Records it is evident that it was from this Kings Authority and at this very time that the House of Commons came to be fixed and establish'd in the present constant Form it is now and hath been in for many Kings Reigns and than the King in this Age was not altogether confin'd to any Number of Knights