immediately But I mnst needs say this Errour of Mr. Hunt's is the most excusable of any I meet with in his Book because the great Lord Cook leads him the way For he tells us and refers to the Mirror for Proof That by the Laws and Ordinances of ancient Kings and especially of King Alfred it appeareth that the first Kings of this Realin had all the Lands of England in demesne and les Grandes Mannors Royalties they reserved to themselves and of the Remnant they for the Defence of the Realm enfeoft the Barons of the Realm with such Jurisdiction as the Court Baron now hath and instituted the Free-holders to be Judges of the Court Baron Then he tells us in his second Institutes That till the Statute of 24. E. 3. whereby 't is provided that Alienations of Lands made by Tenants which held of H. 3. or of other Kings before him to hold of themselves should stand in force saving to the King his Prerogative of the time of his Great Grand-Father his Father and his own It was doubted whether the King's Tenant might have given part of the Tenancy to hold of himself Which is in Effect the same with Mr. Hunt's Notion of all the Tenants holding of the King in Chief 1. But 't is obvious that by what the Lord Cook said of the Laws of King Alfred and others whereby he supposes Tenures were erected not only of the King but of his Grantees who had their Court Barons His Opinion was that the King's Tenant might have granted out to hold of himself for otherwise how could he have had his Court of Tenants 2. Whereas he supposes that the Laws of King Alfred shew that the Kings had all the Lands in Demesne there is but one Law of King Alfred mentioned in the Mirror and that is for the great Councils assembling at London twice a year or oftner if need be Not any thing of Tenures 3. But amongst the Establishments made per cel estate per plusors Royes by several Kings in Parliament the Mirror says Assentus fuist que les choses suivant serrent appendant aux Roys al droit de la corone Soveraigne jurisdiction la Soveraign Signory c. come Franchises treasnre trove c. Then it goes on Ceux droits retiendrent les primers Roys delremnant de la terre enfefferont les Countees Barons c. Here 't is plain that no more than the Rights aforesaid amongst which Chief Cities Chief Ports and Great Mannors were named not all the Lands were retained by the first Kings And tho they are said to have Infeoff'd others of the rest of the Land to hold of them yet that does not necessarily imply that they had all in them before Nay the Mirror shews the contrary for it says That after God pleased to abate the British Nobility who used Force rather than Law he left the Realm to the most humble and simple of all the adjacent Countries the Saxons who came to conquer it from Almain de la quel gent il y eurent iesque quarant Soveraigns que touts soy tiendrent a Companions Amongst these forty Princes being equal and independent here was no King till they came to make a Choice And so the Mirror tells us they did having felt the smart of their Competitions Then Eslierent de eux un Roy a reigner sur eux Governer le People de dieu a Maintainer Defendre les Persons les Biens en quiet per les Rules de droit This shews they did not resign their Properties to the King for they chose him to defend them yet it seems they consented to take Grants from the King by such Services as were in common agreed upon And though they were principally from him as Head of the Body Politick yet any Man that observes the Forms of the Saxon Kings Grants will not think it a vain Imagination that such as I speak of should have been with universal Consent 4. But I cannot find any Warrant to question the Tenants Power at the Common Law to Grant out to hold of himself And I am sure there is an express Resolution for it in Dyer the Words are thus in English A Man seized of a Mannor in Fee held of the King in Capite before the Statute of Quia Emptores Enfeoffs J. S. of part of the demeans in Fee without saying more the Feofee enfeoffs another to hold of the Feoffor and his Heirs by 26 s. and 8 d. Rent for all Services The Land clearly is not held in Capite And the first Mesnalty is not held of the Feoffor as of the Mannor by Knights Service The Statute of 34 E. 3. mentioned before by the Lord Cook is not in the least contrary to this For whereas before Magna Charta the King's Tenant might have alien'd as he pleas'd and Magna Charta's Provision Quod nullus liber homo det de caetero amplius alicui vel vendat alicui de terrâ suâ quà m ut de residuo terrae suae possit sufficienter fieri Domino feodi servitium ei debitum quod pertinet ad feodum illud interpretatively gave a Fine to the King when his Tenant alien'd which was not due before that great Charter was made The Statute 34. E. 3. gave the King Fines for Alienations made in the time of any King even before the making of the Charter The Lord Cook cites an Answer to a Petition in Parliament 18. E. 1. Rex non vult aliquem medium which is no more than that he would not grant his Tenant who then petition'd Licence to alien However he had not forfeited his Land if he had alien'd but the King might have entred and seized the Land in the Name of Distress for a reasonable Fine for the Trespass Which the Lord Cook takes for the better Opinion And if the Land were forfeited to be sure the indivisible Service could not have been multiplied as Mr. Hunt imagines 'T is certain that tho at the Common Law the King or any other Lord might have distrained for his Services reserved upon the Original Grant in the Lands of any inferiour Grantee as well as in the Lands of his immediate Tenants yet there was this Inconvenience that the Wardships and Marriages were not so considerable when the Lands were parcell'd out and the Lands of the immediate Tenant who only was to be in Ward or to be married by the first Grantor were of less value Therefore was that Provision by Magna Charta by the Interpretation of which the King was to have Fines upon Alienations But tho the Inconvenience of Tenants aliening to hold of themselves was taken away by the Statute of Quia emptores Terrarum 18 Edw. 1. which gave Tenants free Power to alien their Lands and provided that the Alienees should hold of the Alienors immediate Lords with an Apportionment of Services Yet Licences of Alienation being
Lord HOLLIS HIS REMAINS BEING A Second Letter to a Friend Concerning the JUDICATURE OF THE BISHOPS IN PARLIAMENT In the Vindication of what he wrote in his First and in Answer to a Book since published against it Entituled The Rights of the Bishops to judge in Capital Cases in Parliament cleared c. It contains likewise part of his Intended Answer to a second Tractate Entituled The Grand Question touching the Bishops Right to Vote in Parliament Stated and Argued To which are added Considerations in Answer to the Learned Author of the Grand Question c. By another Hand And Reflections upon some passages in Mr. Hunt 's Argument upon that Subject c. By a Third London Printed for R. Janeway 1682. The GENERAL PREFACE THE name of the Lord Hollis is so well known both to the Active and Contemplative part of Mankind that no more need be said to recommend any Papers to the World than to give Assurance that they were his and by him Designed for the Press I am perswaded that most who Read the first of these ensuing Treatises and have been conversant in that Great Man 's Writings cannot but acknowledge this for the Genuine product of his large Soul and close way of Reasoning But besides the inward testimony of the thing it self we have other sufficient proof of its being Authentick from such as had the Honour of a familiarity with that Extraordinary Person in his life time to whom he communicated his thoughts on this Subject as he from time to time committed them to Paper He lived not to finish any more of his Answer to the Grand Question c. than what is now published but often affirmed that he had Conquer'd all the difficulties in it Nature was spent and all the Oyl of his Vital Lamp was consumed before he could advance further with his Pen And when we consider that he had past the Age of Man having arrived to his eighty first year and that he still continued Writing for Eternity when he was upon quitting this Mortal state we may well say that his Life went not out in a Snuff as most very aged men expire but that he ascended to Heaven in a bright flame which still continues to enlighten us that remain here below Surely I cannot be taxt of impertinence if I here strew upon his Herse some of Cicero 's happy flowers since one would think they sprung up now for this very purpose Est etiam quietae purae atque eleganter actae aetatis placida ac lenis senectus qualem accepimus Platonis qui uno octagesimo aetatis anno Scribens Mortuus est Let no Man say that it misbecame him to spend his time thus when he was posting to Eternity He had found Truth to stand in need of his Defence and his own Reputation was called in question upon his appearing for it And next to Devotion which without doubt had a due share of his time nothing perhaps can give a greater foretaste of the joys of Heaven than the sense of a Mans having fully vindicated Truth and his own good name The Author of the Considerations is likewise a person of great Age and well known for his great Learning Nor would his Name if made publick give any small Reputation to his Book But he is so sincere a Lover of Truth that I dare say he would not have any Man byast with a previous disposition to believe that there is more force in his Arguments than he finds but leaves them to their natural energy For me to pretend to give the Characters of such Authors as these two would he a presumption beyond what I am guilty of in putting some Papers of mine in the retinue of theirs But though my Character cannot do sufficient Right to either yet a Confutation of Mr. Hunt 's Errors may be a piece of Justice to the Lord Hollis who has been much undervalued by this warm Author And as Mr. Hunt is a Man justly in Reputation for his Parts and Literature unless it be shewn that his Authority is of no great weight in this sort of Learning he might wound by his Censure where he doth no great feats with his Argument I doubt not but he will pardon my freedom with him since he has used as much or more with what I have formerly published to the World Indeed by his Preface one would think that he had wrote before I had set out any thing relating to Antiquities But then he must needs have understood by way of Prophecy what I would say about the Curia Regis great part of which he makes use of and concerning the explication of King Iohn's Charter and several other things which he opposes I am sensible that enough has been said by the Two learned Authors on whose Papers mine attend to clear the Question concerning the Bishops Voting in Capital Cases in Parliament from all the dust raised by Mr. Hunt But he having put things together in another manner than had been done before some might think it requisite that there should be a particular Answer given to every thing of his that bears the face of an Argument both upon the account of the weight his Assertions may carry with many and the want of Judgement in others to apply what may be found in these Treatises to silence all Objections in how different a manner soever they may be repeated And truly this I had done according to my Talent but considering that those things are wrote for the Learned whose Judgements are too delicateisoon to rellish the same dish drest over and over again I thought it convenient to suspend the publication of what has occurr'd to me upon that Subject Nor shall I at present interpose in that Controversie any further than to free my self from a two-horned Argument which I were very dull not to perceive my self to be concerned in if not solely aim'd at by it Having first taken a difference between the Great or General Council of the Nation to which Proprietors of Lands as such had right to come till 49 H. 3. And the Curia Regis compos'd of the Kings immediate Tenants and Officers I had occasion to enquire into the nature of the Curia Regis mentioned in the Constitution of Clarendon which obliges the Ecclesiastick Tenants in Capite interesse judiciis Curiae Regis quousque perveniatur ad diminutionem membrorum vel ad mortem This I took to relate to Judgements in the Curia Regis as such And the ground of coming to the Great or General Council being different from that of coming to the Curia From thence I conceived might be gathered a sufficient Reason why the Bishops might have been allow'd to vote in a Legislative Capacity in cases of Blood And yet that practice might no ways extend to warrant their sitting as Iudges upon such Causes either when there was a bare Curia de More or when it sat within the General Council of the Kingdom more
misled by the Printers misplacing the quotation so excusing him from any wilful error and purposely venting of untruths I do the like in another great falshood of his in the page following upon his citing a Record 21 R. 2. In the case of the Earl of Arundel which he makes to be That the Lord Steward by the assent of the King Bishops and Lords adjudged the said Earl guilty of Treason whereas the Record runs That the Lord Steward by the commandment of the King and all the Temporal Lords and Sr. Thomas Percy empowered by the Prelates and all the Clergy of the Kingdom judged him guilty c. This you see is a foul misrepresenting of his Precedent and imposing upon the Reader a falshood instead of a true Record for it shews that no Bishop was personally present and I make it out That the putting of a Lay-man in their steads is a strong evidence of the incapacity of all Clergy men to be any of them personally present at any of those Tryals Yet in this I rather excuse our bold Assertor shewing how he was misled here likewise by Sr. Robert Cottons Abridgment and only add this That methinks one should not venture to quote a Record upon any mans allegation without consulting the Record it self which I said I am sure he had not done which I think was as gentle a reprimand as could be and shews That I supposed him such a lover of truth as that if he had known it a falshood he would not have made use of it only he was deceived relying upon the authority of that learned Antiquary Sir Robert Cotton but in truth I am now of another mind and see my Gentleman hath a large Conscience and a mercenary Pen to publish any thing right or wrong to please those that set him on work His third notorious falshood is The Precedent which he cites of Richard Earl of Cambridge who he saith 3 H. 5. was tryed in Parliament upon an accusation of Treason and found guilty the Lords Spiritual being personally present and bids us see the Record of it in the Tower To which I only say That he had not done it himself for he would have found it contrary to what he asserts and that the Earl of Cambridge was tryed condemned and executed at Southampton by a special Commission and that his Attainder was afterwards brought into Parliament and there confirmed by Act of Parliament at which the Bishops might be present Now I pray you Sir do you judge if I gave him any occasion for such a reply as he hath made to me throughout from the beginning to the end of his Pamphlet and if he should not first have considered the Beam in his own eye and have purged himself and given the world satisfaction for these gross mistakes of his rather than add more to them as he hath done all along his book with language fitter for Billingsgate than for the eyes or ears of any sober man But I see it is the nature of the Beast as the Proverb is which he cannot help therefore we must take him as he is Naturam expellas furca licet usque recurret And now Sir I must beseech you to pardon the trouble I have given you with this long Recapitulation of those his falshoods in his former Pamphlet In which I have been the longer to set forth the advantage he gave to one that would have fallen soul upon him and how gently I dealt with him thereby to justifie or at least something excuse my sharpness with him now which I confess and am sorry for for his base return of scoffings and railings against me not fit for a Gentleman who deserved better at his hands and gave him not the least provocation for it But tread upon a Worm and it will turn again And so I shall apply my self to answer what he saith as to his Arguments in the maintenance of his Assertions which I think will not prove very convincing and will follow him as he sayes he would follow me step by step and I hope I shall make it appear that he hath made many a false step and will begin with his Postulata's as he calls them wherein he saith we do agree but he means I think like Dogs and Cats His first Postulatum is concerning the Protestation of the Bishops 11 R. 2. Wherein he saith we both agree that it is a Law But that I have not set it down faithfully leaving out the most considerable things in it because they make against me which if I have done I am a very bad man and may pass not as he stiles me for One of the younger house of great Alexander but rather of the house of this great Asserter himself who is the chief of the family of the Asserters of untruths His charge against me is for leaving out a passage in my recital of this Protestation which is what they say in the beginning of it and likewise towards the end of it claiming themselves to be Peers and that in right of their Peerage by the Laws and Customes of the Kingdom they ought to be personally present in all Parliaments Then he subjoyns another Protestation in the 28 H 6. which he saith also I have not cited faithfully and ingenuously as I ought to have done This is a great charge upon me if it be true that I have done any thing unfaithfully and disingenuously of which I hope I shall be able to purge my self And first give me leave to make a Protestation for my self in the general which I do upon the faith of a Christian and an honest Man and it is this That neither in the citing of these Records or any other throughout my Letter to you I have purposely and willingly left out or concealed any thing that I thought material because it made against my opinion But what I have written is the naked truth as I am fully perswaded in my Soul and Conscience and all that I have done in it hath been singly and meerly for the discovery of the truth and the satisfying of my self and others of which I take the searcher of all hearts to witness and let our Asserter say so much if he dares though for venting falshoods for truths I find him a daring man And now to come to these particulars I will first lay before you upon what ground and to what end I urged that Protestation of the Bishops 11 R. 2. It was for two reasons One to shew That it being at their desire enrolled in full Parliament by the assent of the King Lords Temporal and Commons it came to be the Law of the Land though it had not been so before The second thing was to shew that the Salvo of the Prelates in that Protestation extended only to their Right of Sitting in Parliament in other cases but not in Cases of Blood and that they did not therein at all pretend to that which I think I very clearly proved
in that Letter to which I refer my self But for these omissions which he makes so criminal As for the first concerning my not expressing that they made their Peerage a ground of their Protestation I answer That since what I conceived and maintained to have been their end in their Protestation which was Only to assert and lay claim to their Right of being present in Parliament in all other matters but matters of Blood was not at all controverted by me but that to which I fully agreed in omnibus I did not think it at all necessary nor proper to insert what moved them to make such a Protestation but only so much as was to the purpose for what I alledged that Precedent The matter of their Peerage is another point for which in truth there is little ground notwithstanding all their claim to it and that it be sometimes attributed unto them by such as desire to please them and perhaps by many ignorantly and mislead to it in regard of their sitting in the Upper House of Parliament and having a Parity of Vote with the Temporal Lords in the Legislative part and likewise in the judicial part of that House in all other Cases but of Blood from which they have been particularly debarred both by their own Canon Law and afterwards by the Law of the Land and the custome and usage of Parliament which may very well make many persons not considering the true nature of Peerage nor examining with care and diligence what in that particular our Law saith and what hath been the usage of Parliament give them that Appellation But I have in my former Letter cleared also this point I think very fully and shall say more to it in this when I come to answer that Article hereafter in course as our Assertor brings me to it for this now is but by the way upon occasion of this his first Postulatum And now for his other charge upon my unfaithful citing the Protestation in 28 H. 6. leaving out how the Lords Spiritual and Temporal joyned in challenging their Right of Judicature and that the Judgment given by the King concerning the Duke of Suffolk should not turn to their prejudice but they and their Successors should enjoy their liberties in case of their Peerage hereafter as freely and as largely as their Ancestors had before them I shall give a like answer to this as I did to the other I concealed nothing that was necessary and proper to be said which may appear by my letting forth particularly the whole proceeding in that Tryal step by step how the Prelates joyned in the management of it from the beginning to the end therefore certainly it had been no more a disadvantage to me to acknowledge that the Prelates claimed such a Right in a verbal Protestation than that they did actually exercise it as I say they did all along in the whole transaction of that business Therefore if it was designedly done it was a weak design in me my end was only to shew the palpable extravagances of that Tryal and of the Kings taking upon himself to give the Judgment and so mentioned the Lords Protesting against it in which the Prelates joyned with the Temporal Lords as well as they had in all the foregoing passages of it for the matter of their Peerage I reserved it still to be spoken to in a clause apart by it self when it comes to be the proper subject matter in question I did it in my former Letter to you and I shall do the same in this His second Postulatum is concerning Attainders in which he saith we both agree that Bishops may and ought to be present and yet Attainders saith he are matters of Blood and learnedly he adds That it is not material in the Judgment of any considering person which way a mans life is taken away whether by way of Attainder or by Impeachment and infers further That the Canon Law which by a jeer he saith I call the Law of Laws is not so indispensibly obliging And our Asserter it seems puts himself into the rank of those considering persons that make an Attainder and an Impeachment two distinct species or kinds of proceeding against a Criminal person to take away Life saying it is not material which of the two wayes life is taken away whether by Attainder or Impeachment Oh the Ignoramus that wants a considering Cap to judge aright and know what an Attainder is which is what follows upon the Conviction and Condemnation of the guilty Person be it upon an Impeachment in Parliament and Tryal there in a judicial way or by an Act of Parliament in the Legislative way or by a special Commission of Oyer and Terminer under the great Seal the Attainder is the Result and Consequent of those three wayes of Tryal and Condemnation and not a distinct thing running in a different channel from an Impeachment or from any of the other wayes of Tryal being the end and consequent as I say of all Tryals when the person is found Guilty The Term Attainder or Attainted implies so much which our Etymologists derive from the Latin Attingere to Touch or Reach to a thing Now a Criminal person is touched or reached unto and seized upon by the Law upon an Impeachment and Tryal in Parliament or by a Tryal out of Parliament by Commission as well as by an Act of Parliament so I think one may give it this Definition That it is a Notion in Law whereby the Law reacheth and seiseth upon a Condemned person taints his Blood and divesteth him of all his Priviledges both in publick and private concerns which he enjoyed before as a Free Man of England Besides our confident Asserter doth not consider the nature of the Question in controversy which is not Whether a Bishop quatenus a Bishop an Ecclesiastical person in holy Orders may be present as a Judge in any case when matters of Blood are agitated and whether the Canon Law be so obliging as that in no case he may but whether by the Law of the Land and the custome and usage of Parliament the Bishops be forbidden it when the House of Peers acts in a judicial capacity to condemn any body and not when they pass an Act of Parliament for it and I think it is clearly made out That they may in the latter case passing a Law for it and not in the former to act as Judges in a judicial way His third Postulatum is concerning the Petition of the Commons 21 R. 2. That in regard divers Judgments in Parliament had been heretofore undone and repealed for that the Lords Spiritual were not present at them the King would command them to make some their common Procurator with sufficient authority thereunto which would put an end to all controversies To this he saith That for me to demand what in particular those Judgments were at this distance of time is neither equitable nor rational And truely I made no such
such Judgements and then particularly whether among the Grantz of that Parliament of 25 E. 3. that affirmed that Judgement against Thorp there were any Bishops And I infer there was none because they tell the King that hereafter even out of Parliament if any body else offend in like manner he may take any of them that is of those Grantz that now give him this advice to joyn in condemning him and by the Law of the Land a Bishop could not joyn therefore there was no Bishop amongst them And that by the Law Bishops and all Clergy-men were prohibited appears by the Act of Parliament of the second of that King which I mentioned before confirming one to the same purpose made in Edward the First 's time that No Clerk should be a Justice of Gaol-delivery for Tryal of Felons this I think is not petere Principium to prove the true meaning of what was done at that time in the House of Lords by what the Law of the Land had already established which must regulate what the House of Lords then did and doth shew there could be no Bishops in the number of those Grantz Then for what he saith of the Commons charging Michael de la Poole before the King Prelates and Lords which was in 10 R. 2. and parallelling his crime to that of Sir William Thorp who for it was condemned to dye upon which he will infer that Michael de la Poole was charged with a Capital crime and accused of it by the Commons before the Prelates as well as before the other Lords who gave their Judgements upon it He may examine the Record and he will find that the Impeachment was only for Misdemeanors cozening the King in an exchange of Land when he was Chancellour and some other miscarriages of that nature And it is the Impeachment which is in the nature of an Indictment that governs the Tryal be the crime what it will As it is laid in the Impeachment or the Indictment it must be so found upon the Tryal at the least it can be found no higher less haply it may be A man that is Indicted for a Misdemeanour cannot be found Capitally Guilty And though by a comparison by way of aggravation it was likened to Thorp's Case Michael de la Poole made it appear there was no resemblance between them And who will take pains to read the Record of Thorp which I dare say this Trifler never did nor scarce any Record will see that the ground of that Judgement which made it Capital was that himself had submitted to such a condition when he took upon him the Office of Chief Justice the words are Si sembla a eur le Jugement sur ceo rendu resonable depuis qil se obligea mesmes per son serement a tiel penance fil feist alencontre The Judgement given upon it seemed to them to be agreeing to reason since he had bound himself by his Oath unto such a punishment if he did contrary to his Oath And I must say it would go hard with a great many if every one should be hanged that cozens the King And it is a pretty remark of his upon Sir John Lee's Case 42 E. 3. that the Record saying That he was brought before the Prelates Dukes Earls Barons and some of the Commons c. He observes that if at this Tryal any thing had been objected which had been Capital the Bishops were present at it And I say he might have made a truer observation than that which is That they might be well assured that nothing Capital was to be objected because then the Bishops would not have been present And one thing I am sure is observable which is that the Bishops that is the Prelates are here recorded to be present and to be ranked before the Dukes Earls c. We are sure if any be specified they are and still ranked in the first place What my Gentleman means in what he saith upon the Tryals 50 E. 3. I understand not they are the Cases of Richard Lyons the Lord Latimer William Ellis the Lord Nevill and John Peach all these were only charged with Misdemeanors he saith their crimes were great and hainous and reckons the loss of Forts among them which he saith was a crime Capital in Gomenitz and Weston 1 R. 2. and that I acknowledge the Bishops to have been present at those Tryals But still this learned Gentleman who brags here that he will not suffer the World to be longer amused and imposed upon by my Notions doth himself still mistake the business not well understanding the nature of the thing he treats of Otherwise he would consider that the Tryal of a Criminal person must always be pursuant to his Charge which is a point I have already spoken to therefore I shall say little here only this that the Impeachment of the Commons against those persons was only for Misdemeanors their Tryal was accordingly and the Bishops were present And for what he saith of Gomenitz and Weston was clean another Case it was for betraying those Towns which they had undertaken to keep when the force upon them was not so great However it is not material what their Crime would appear to be upon proof but what their Charge was and that was Capital Then for what he adds of the Bishops being comprehended under the general Apellation of Les Seigneurs du Parlement The Lords of Parliament in several Cases which he there cites which he beats upon over and over again in so many several places of his Pamphlet and sets up like a Man of Straw of his own making to make sport with is what I never denied my Position is That I have still observed in all Tryals of Crimes when Bishops could be present it is so expressed that they were so as in all Crimes not Capital and I do not think one Instance can be given to the contrary And my other Position which I affirm with more confidence is That if any of the other ranks of the Lords be mentioned the Bishops are so likewise or else it is a certain argument that they were not there My Gentleman is a little put to his Trumps in the Case of Gomenitz and Weston 1 R. 2. That is so plain first the Commons coming and desiring That such as had lost Towns and Castles by their own default might be punished Per agard des Seigneurs Baronage By the Judgement of the Lords and Baronage whereupon those Lords commanded Gomenitz and Weston to be brought before them and upon a long hearing condemned them both to death And the Lords are particularly named the Duke of Lancaster first and ten more Earls and Barons by name of whom Roger Lord Clifford was the last and then a general clause Et plusours autres Setgneurs Barons Bannerettes And many other Lords Barons and Bannerets Now this is so plain and exclusive of all Prelates as my Gentleman is forced to confess that it seems
that I confess they might be so because it was in passing an Act of Parliament to confirm their Attainder But my Gentleman is mistaken as he commonly is almost in all his Assertions for the Cases are not parallel the Earls of Kent Huntington and Salisbury had no Tryal had not been legally condemned and attainted but being taken in Circester by the Townsmen rising upon them were by them in a tumultuary manner put to death and the House of Peers afterwards in a judicial way adjudged the fact of those Lords Treason and them Traytors and this was done only by the Temporal Lords who are there particularly named But the Earl of Cambridge and the Lord Scroope had been Tryed Condemned and Executed at Southampton and this Judgement afterwards was brought into Parliament and there confirmed by Act of Parliam where the Bishops were and might be present but our Asserter hath ill luck in all his allegations And he will have as ill luck in what he saith to the Earl of Northumberland's Case 5 H. 4. where I am sure he begs the Question and doth Disputare ex non concesso for whereever Lords or Peers of Parliament are mentioned he will have the Bishops to be comprehended whereas those general words as all other such are to be understood Secundum subjectam materiam If it be in a Case where the Bishops are particularly by the Law of the Land and the continual practice in the execution of that Law excluded and others are comprized under the same general expression it must be understood of them only and not of those upon whom there is such a bar Now they who will have the Bishops to be Peers do not make them the sole and only Peers but allow Earls and Barons to be Peers with them But I do not allow them to be Peers at all our Asserter will prove them to be Peers by two Records Mautravers Case 4 E. 3. and their Protestation 11 R. 2. I have already given an account of what is in Mautravers Case the words are All the Peers the Earls and Barons being met c. Is it not ridiculous to expound this that by All the Peers is meant only the Bishops as if the dignity of the Peerage did principally belong to them that they should be Peers Sans queue as the French denominate a thing that belongs to some particular person more properly and in a more eminent degree than it doth to any body else Or is it not more rational and indeed only so to understand this expression to import that the Earls and Barons were the Peers who then met and that saying All the Peers the Earls and Barons c. the Earls and Barons are an Exegesis an exposition of the foregoing general denomination of Peers so Mautravers Case makes nothing for him but much against him And as to their own Protestation 11 R. 2. indeed they call themselves Peers there but that doth not make them so I have spoken to this point already very fully and sorry I am that I am forced to do it again and to do it so often but he leads me to it who doth as the Proverb saith Reciprocare serram go over and over the same thing as much as ever any man did I think and as often mistake The force of my Argument to prove that by the general appellation of the Lords who protested against the Kings delivering the Earls Petition to the Judges to have their opinion and judged the fact themselves not to be Treason but a Trespass could not be meant Bishops because the Record saith Sur quoy le dit Conte molt humblement remercia le Roy les ditz Seigneurs ses Piers de lour droiturel Iugement Whereupon the said Earl very humbly thanked the King and the said Lords his Peers for their right Iudgement Now the Bishops could not be Peers to the Earl who could not try him nor be tryed by him they being to be tryed only by Commoners and Commoners to try them if there be occasion of which more shall be said afterwards in its proper place I will here only observe one thing that our Asserter hath it instead of Humbly thanked Humbly reverenceth the King which he takes out of the Pamphlet that goes under the name of Mr. Seldens Baronage which I have ever looked upon as a spurious Book not made by Mr. Selden who would never have so translated Remercia and being full of faults and falsehoods yet this Book and Sir Robert Cotton's Abridgment which hath likewise faults enough are the chief Oracles that he consults and which do many times deceive him as the ancient Oracles did those who resorted to them Of as little signification is what he adds of the Lords of Parliament declaring the action of Henry Percy who was killed at the Battel of Shrewsbury to be Treason where he doth assure you the Bishops were present and you shall have his Oath for it I dare say if you will And how doth he prove it Why saith he the Arch-bishop of Canterbury was present at the former Iudgement for in express words he prayed the King that forasmuch as he and other Bishops were suspected to have been of confederacy with Henry Percy that the Earl of Northumberland would now publish the truth whereupon the Earl by the Kings command upon his Oath purged them all And then learnedly argues That here was no departure of the Arch-bishop and of the other Bishops concerned And I believe him for in truth here is a good proof that they were all present but to be purged themselves that they should not be thought Criminal not to act as Judges which is what our worthy Asserter doth assert and what he would have us think that he fully proves which he doth more solito that is Cujus contrarium c. Then my Gentleman for he is an active Gentleman makes an Alman leap to the very end of the last leaf of Sir Robert Cotton's Abridgement where he finds a marginal note of Mr. Prynn's to this purpose That the three Estates must concur to make a Parliament or Richard the Third's title would still be ambiguous and this he thrusts in here by head and shoulders I understand not how to the present purpose I think only to have the occasion to say that Mr. Prynn knew better of Records and what Plein Parlament meaneth than I and another whom he joyns with me and twenty more such as we are which I deny not though he should add to the number himself and forty more who were no wiser than he who all of them would not make our ballance two grains the heavier Then he comes to the Case of the Earl of Northumberland and the Lord Bardolph 7 H. 4. which he saith I say is like to that of the Earls of Kent Huntington and Salisbury 2 H. 4. and that is true for in both those Cases those Lords after their deaths having had their lives taken from them in a
Contradictio in adjecto an Imparity in a Parity Thirdly If the Husband be enobled the Wife must be so but the Wife of a Bishop is not enobled therefore the Person of her Husband is not for the Wife and the Husband are one Fourthly If a Bishop were a Peer he could in Parliament time be Tryed no where but in the House of Peers but Matter of Fact we find to be otherwise Therefore I think I may safely conclude that Bishops are no Peers But before I leave this point I must answer one thing which is said They say they hold by Baronage and therefore they are Barons as Fitz Stephen makes the Bishops in their altercation with the Temporal Lords about the pronunciation of the Sentence against the Arch-bishop saying Non sedemus hic Episcopi sed Barones Nos Barones vos Barones Pares hic sumus We sit not here in Parliament as Bishops but as Barons we are Barons and you are Barons Here we are Peers Fitz-Stephen's authority signifies nothing to me but this I know is said and believed by many therefore it must be answered to disabuse many who may think that holding by Barony creates a Baron which it doth no more than holding by Knights service makes a man a Knight or holding by Villanage makes a man a Villain which many do to this day even but here at East-Barnet and yet are good Free-men and no Villains for it works not upon the Person as Fleta saith l. 3. c. 13. the service they do is ratione tenementi non personae So the Bishops holding per Baronagium are thereby made subject to do the service of Barons and to obey the Kings Writ of Summons to attend the Parliament which makes them Lords of Parliament but affects not their person The Bishop of the Isle of Man is a Bishop as well as any of the rest first instituted by Pope Gregory the Fourth as Sir Edward Cooke saith but not holding by Baronage hath no place nor vote in Parliament We must know that this Tenure by Baronage was first created by William the First of all the Lands which held of the Crown in Capite consisting of so many Knights Fees these Lands were divided some to Lay-men some to Ecclesiastical persons And these were all bound to certain services though not all to the same and among others all to attend in Parliament whenever the King pleased to Summon them and so became Lords of Parliament This continued so till King Iohn's time when the number of the Temporal Lords growing so great and numerous that King made some alteration which certainly was setled and confirmed by Parliament but justly the time when this was done is not known the Record of it being lost The alteration was that none of the Temporal Lords should come to Parliament but such as received the Kings Writ a particular Summons for it These were called Barones Majores those who were not so summoned and so did not come to Parliament were stiled Barones Minores and were still Feodal Barons as before and held their Lands per Baronagium but were not Lords of Parliament Therefore it was not barely holding by Barony which made the person a Baron even in those times there was an act of the Kings requisite even in the Summoning of him to Parliament to make that Honour to affect and enoble the Person and so to fix it and make it hereditary in the Family which way of dignifying a Person continued till the eleventh year of Richard the Second when Iohn de Beauchamp Steward of the Houshold was first created by Patent Baron of Kiderminster since which time it hath still been practised to make them all Barons by Patent But the Bishops have still continued upon the first Institution of being by their Tenures obliged and accordingly Summoned to attend in Parliament which made them Lords of Parliament but not Peers of the Realm And now I come to his last point making them a Third Estate for which he cites the Bill presented to Richard the Third in his first Parliament where they are made so and to this I can oppose other passages in Parliament clean contrary as that 2 H. 4. where the Temporal Lords and they together are made to be one of the three Estates and other instances may be given of the same nature But let us a little consider how that Bill was framed 1 R. 3. it was first devised by certain Lords Spiritual and Temporal and other Nobles and notable Personages of the Commons a Party picked out and chosen for that purpose who presented it in the behalf and in the name of the Three Estates of this Realm of England and what was this to do to declare Edward the Fourth to have lived in adultery with Dame Elizabeth Gray whom he had married being precontracted to Dame Ellianor Bottiler daughter to the Earl of Shrewsbury and consequently all his Children Bastards Edward the Fifth a Bastard and Elizabeth his Sister a Bastard afterwards married to Henry the Seventh which entituled him and his Posterity to the Crown set an end to all the foregoing competitions and setled it as it is at this day this Bill as the Record saith was first presented and delivered to their Soveraign Lord the King that was to R. 3. whom they made so in the name and on the behalf of the said Three Estates out of Parliament and now by the said Three Estates assembled in Parliament ratified and confirmed And truly I must say this is not an authority to be bragged of for making the Bishops a Third Estate But then let us see if the Bishops sitting in the House of Lords have the necessary and essential qualifications of being a Third Estate in Parliament without which they cannot be a Third Estate there That the Clergy is one of the three Estates of the Realm and they the Principal and Chief of them no body denies And that they are Summoned to Parliament as a Third Estate of the Realm the dignified Clergy personally others of the Inferiour sort by their Procurators and Representatives is likewise confessed but not to have any part in making of Laws for the good Government of the Kingdom no not so much as in matters meerly concerning the Church but they may offer and propose and be consulted with but whatever they agree upon must come to the two Houses of Parliament and receive the stamp of their Authority before it can be presented to the King to become a Law and be binding to the People This is the work of the Convocation which meets at the same time with the Parliament and there is convened the Third Estate of the Realm Where the Bishops make the Upper House and there sit as Bishops according to their Spirituality But their Summons gives them another capacity which is to meet in the House of Lords and there Cum caeteris Praelatis Magnatibus Proceribus regni de arduis negotiis Statum regni Ecclesiae
Opinion have been some Heraulds and have contended that by the Writ of Summons the Person was enobled and if his Descendents were so called for three Descents the Blood was enobled I conceive this Opinion to be erroneous For it is against a Maxime in Law that the King should pass any thing by Implication and as unreasonable to believe he might not have Liberty to require the Counsel of his Subjects without conferring an Honour upon them he did not intend Besides it will hence follow That during divers Parliaments of Edw. 1. almost all in Edw. 2. and many in Edw. 3. all the Judges King's Serjeants and many other were enobled for they had the same Writ the Barons had yet were never accounted such nay were often after such Summons omitted The known Case of Mounthermer is very pertinent to our purpose who having married the Relict of the Earl of Gloster who had a great part of the Earldom in Jointure her Husband was summoned as an Earl during the Minority of her Son but after he came of Age Mounthermer was summoned as a Baron during his own Life and after wholly omitted in his Descendents If it be said that his Summons enobled him but in regard his Descendents were not called the Blood was not enobled what will they then say to the Case of Radulphus de Camois who was summoned and his Son after him in 7 Edw. 2. yet in 7 Rich. 2. Claus. Memb. 32. in dors Thomas Camois the Grand-child was chosen one of the Knights for Surrey and discharged by the King 's Writ because he and his Ancestors were Baronets and the said Thomas was summoned and served in that Parliament not as a Baron but as a Barons Peer or Baronet which was an inferiour sort of Honour and signisied the same thing that Tenants in Cap. did in the time of King John But that these sorts of Peers were sometimes summoned and sometimes omitted at the King's Pleasure The only difference being that which appeared when they came thither the one appearing viz. The inheritable Barons in their Robes the others not but in Habits different from the Barons Now that there was this difference is made plain by those Authorities shall be produced under the next Head which is that there were a sort of Persons called Barons who were so by Tenure only that is to say who held of the King in Cap. and had such a number of Knights-fees and upon that account were summoned as Barons or rather as Barons Peers Mr. Selden seems to say in his Tit. Hon. Part 2. Sect. 17. pag. 690. That all Honorary Barons of that time whereof he speaks were for ought appears Barons only by Tenure The words are cautelous and his Expressions as became a Learned Man warily set down First Honorary Barons viz. Such as had the Honorary Name of Barons but not the Blood for such I take his meaning to be because he gives us no Definition of Honorary Barons nor why if it be admitted that Barons had their beginning from the number of Knight's fees which they held why Earls had not the like beginning who held of the King in Cap. as well as the others Now that there was a clear distinction between Barons enobled in Blood and those that held only in Cap. the one we find called Barones Majores the greater Barons the other Barones Minores lesser Barons The red Book in the Exchequer or Remembrancers Office attributed to Gervasius Tilburiensis speaks of it as an undoubted Truth Quidam c. Some hold of the King in Cap. things belonging to the Crown to wit greater or lesser Barons Quidam enim de Rege tenent in Capite quae ad Coronam pertinent Barones scil majores seu minores by which it appears they both held of the King in Cap. yet were distinguished into greater or lesser Fitstephens in the Life of Thomas of Becket Chap. 11. mentions Secundae Dignitatis Barones Barons of a second Degree Matth. Paris Anno 1215 hath these words Summoneri faciemus Archiepiscopos Episcopos Abbates Comites majores Barones Regni sigillatim per Literas nostras Et praeterea faciemus submoneri in generali per Vicecomites Ballivos nostros omnes alios qui in Cap. tenent de nobis ad certum diem Here we see two different sorts of Barons the one summoned by the King 's Writ the other by the Sheriff The first sort by Writs sealed by the Chancellor the rest by Writs to the Sheriff yet both held in Capite But certainly omnes qui de Rege tenent in Capite must be understood with a reasonable Restriction For it will be very evident to any Man who shall examine the Inquisitions post Mortem remaining in the Tower that much Land held per Baroniam was in the Hands of private Men who were never reputed Barons neither could these Inquisitions be understood of Tenures from Mesne Lords and not from the King because all Tenures per Baroniam were Tenures in Capite which must be from the King Besides if the Tenure of Land made a Baron Why were not the Purchasers of those Lands by the King's Licence of Alienation ever after the Stat. of quia emptores Terrarum called to Parliament as Barons The Case of the Earl of Arundel 11 Hen. 6. will not mend the matter for his Ancestor was created by Writ and the Castle entailed upon him so that he was called to Parliament not by having the Land only but by virtue of the Creation of his Ancestor and the Entail upon it In so much that I still conceive that the ancient Nobility from whatsoever beginning it arose was made inheritable by Creation and Investiture of Robes upon which sometimes followed Cnarters which directed how it should descend and the Confusion in Historians hath proceeded from their not distinguishing Barons from Barons Peers so called not from their Parity in Honour but in Estate and Tenure but wanting Investiture were called or left out at the Pleasure of the King This Distinction is clearly mentioned in the old Modus tenendi Parliamentorum printed by Mr. Hakewell Summoneri debent omnes singuli Comites Barones eorum Pares All Earls and Barons ought to be summoned as also their Peers I know the Authority of this Treatise hath been questioned by some Learned Men but by none with more violence and less reason than by Mr. Prin in his fourth part of his Register of Writs p. 591. To which easie Answers may be given if we consider the Translators out of the Saxon Tongue might easily translate Words which they thought of an equivalent Signification by words in use at that time as Wittena Gemot for Parliament and the like Others of as great Judgment have as strenuously defended the Authority of it Sir Edward Cook in his Jurisdiction of the Court of Parliament strongly defends its Antiquity and Mr. Hakewell pag. 135.
when they might have been others that they were present when by his own Rules they should have been excluded either therefore the general words where they are not mentioned do not enforce their Absence or that they oughtto have been excluded at some other Trials where the Author of the Letter admits they were or might have been present The chief Case he instanceth in is that of Michael de la Pool Chancellour of England who was accused of many Misdemeanours by the House of Commons and as I think he would infer such as Thorp Chief Justice was found guilty of being Capital where the Author of the Letter saith the Bishops were not present yet allows them to have been present in the Case of this Chancellour a parallel Case as he saith with that of Thorp either therefore saith our Author they might have been present in the Case of Thorp or they should have been absent in Trial of Pool This is his Argument as near as I can gather out of his Words put together something obscurely I need give no other Answer to this than to lay before you the words of the Record This Accusation was exhibited by the Commons in 10 R. 2. against Michael de la Pool Lord Chancellour in full Parliament before the King Bishops and Lords and six Articles were objected by them against him The first was That he purchased Lands of the King of great value whilst he was Chancellour the other five as the Record saith were only Quarrels and of little concern To the first and most considerable the Chancellour put in a fair Answer the Commons reply and urge things to the utmost and amongst other things say That whereas by the Popes Provisions a Person was recommended to the Priory of St. Anthonies he the said Chancellour would not suffer him to be admitted till the Grantee had contracted to pay to the Chancellor and his Son 100 l. yearly and then parallel this with Thorp's Case and would have had the Chancellor in the same fault with Thorp for Bribery as a Judg and consequently incur the same Judgment The Chancellor replies and shews great difference between the Cases Upon the whole matter Judgment was given against him pursuant to the Accusation for Misdemeanours only in which the Bishops were and might be present and the parallelling it with Thorp's Case was only in the Management of the Cause by the Commons and no part of the Accusation Neither is it reasonable to believe that which our Author asserts in the same Page that the Prelates were free Agents and might withdraw at some times and be present at others as they saw cause For beside that this is contrary to the express Law of Clarendon which expresly declares that 't is their duty to be present in all Proceedings in Curia Regis which in that place must be understood of the Parliament because they were to be present with the other Lords tho I know that Curia Regis is sometimes taken in a more laxe Sense for all the Courts in Westminster are the King's Courts and unto which they were to give Obedience and Attendance in Cases not prohibited I say over and above this Act at Clarendon it seems to me very unreasonable to suppose that such a Body of Men had liberty to give their Attendance when they pleased without leave of the House or cause shewed why 't was fit they should be absent or that the Author of the Letter meant more when he saith they might have been present than that they were not prohibited by the Law of Clarendon which only had Relation to Matters of Blood But these Men had other Canons to go by when they thought fit as well as those of Toledo and 't is probable enough that the rest of the Noble-Men finding them most constant Factors for the Pope were willing enough to let them be absent upon any colourable Pretence when they desired it Is not one clear Precedent against them in point of greater weight than many dubious and equivocal ones which cannot without great Art be wire-drawn to speak to their advantage Let him consult the Discourse of Peerage pag. 17. The Case of the Earl of Northumberland 7 Hen. 4. Rot. processus cor Dom. Rege in Parl. in 5 Hen. 4. This Noble-Man came into Parliament and confessed before the King and Lords that he had done against his Allegiance in gathering Power and giving Liveries this Fact by the Lords was adjudged no Treason for which he gives Thanks to the Lords his Judges and a day after the Commons do the like where the Prelates are named as our Author affirms and to which I shall speak by and by But in 7 Hen. 4 the same Earl was in actual Rebellion in the North and his Forces dispersed by the Earl of Westmarland but he and the Lord Bardolf fled into Scotland the rest were most of them taken Prisoners This Case came into Parliament where the King commands the Lords Temporal Peers of the Realm to advise what Process to make and what Judgment to render against the Earl of Northumberland and Lord Bardolf Nothing can be plainer than that the King look'd upon the Lords Temporal as those Peers who were proper to give Judgment touching their Fellow Peers who had fled from Trial in a case of Blood The Record goes on the said Lords advised thereupon and gave Counsel to the King Then the said Lords Peers of the Realm by assent of the King order summoning the said Lords to appear at a day given or to stand convicted by Award of the Peers in Parliament The King farther demanded the Opinion of the Lords Temporal touching the Arch-bishop of York who was in the same Treason The Lords Temporal by the Assent of the King and by their Authority declared and awarded the said Earl and Lord to stand convict of Treason for not appearing upon Summons 'T is very clear that this whole Business was transacted by the Lords Temporal without the Bishops and with the Concurrence of the King 'T is not to be believed that the Bishops would have sate quiet had they thought themselves wronged in these Proceedings See the Discourse of Peerage pag. 17 18. I think it hardly possible to find a more clear Record in the Point than this is First here were two Noble Lords defeated in actual Rebellion and fled from Justice into Scotland The King upon this would not so much as consult with his Prelates knowing them by Law no proper Counsellours against Peers in matters of Blood applies himself to his Lords Temporal they order Proclamations by order of the King enjoyning the said Lords to appear at a day certain or to stand convict they not appearing are by Award of the Lords Temporal convicted of Treason and a Year after one is slain the other mortally wounded at Bramham-moor in York-shire Can any thing be more agreable to the Practice at this day against Men that fly from Justice and
in Convocation as I have sufficiently I hope made appear pag. 19 20 c. of this Discourse As also that they had the Appellation of Barons and Peers not that they really were so which must have enobled their Blood but in respect of their Tenure in Capite sicut Baroniam or per Servitium Baroniae and for the most part so called by themseves only Our Author's Suggestion p. 151. that they sit in Parliament in a double Capacity as it is new so is it not solid He saith when they sit in the House in a judicial way they sit only in the Capacity of Temporal Barons and that this appears by the Constitution of Clarendon where the King requires their Attendance as his Barons But that in their Legislative Way they have a farther Capacity as representing a third Estate in Parliament I say this Fancy is new for I do not believe any before him look'd upon them as representing a third Estate in Parliament and not representing it I know they have been said to sit in respect of their Possessions which are Temporal in their own nature but not so when given Deo Ecclesiae but that they sate in any other Quality than Spiritual Persons I never heard nor can conceive Methinks if they have a Capacity to sit in the Quality of Temporal Barons they should also have a Capacity to change their Spiritual Robes and put on Temporal The Constitutions of Clarendon he saith require their Attendance in Judicature as his Barons and from thence would infer they sit in the Quality of Temporal Barons But how doth this follow I hope they may sit as Spiritual Barons But when all is done this Allegation of his is not sincere for the words are Debent interesse judiciis curiae Regis sicut caeteri Barones or cum caeteris Baronibus that is to say 't is their Duty to be present in Trials in the King's Court with the other Barons or as the other Barons are there present which words are far from inferring that they sit there in the Quality of Temporal Barons no more than the Judges rather that they sit not as Barons at all but only amongst them who are so It is evident therefore that his first Argument drawn from the Constitutions of Clarendon is not solid His next Suggestion that they are a third Estate in Parliament if by Parliament he mean their Convention in Convocation from the issuing out of Writs to the Guardian of the Spiritualties in the Vacancy of the Episcopal See I shall not contend with him only I think it from hence plain that they have Right to sit as Members of the Convocation properly where with the rest of the Brethren they make up a third Estate in which Writs there is generally a Clause of Praemunientes added to shew that other Clerks are to be chosen to sit in Convocation for which reason the Guardians in their Vacancy have their Writs directed to them lest the Convocation should not be full Now how this can prove them a third Estate in the Lords House I should be glad this Author would instruct me so that his Conceit of their sitting there in a double Capacity is of no weight and all his Precedents cited to that purpose might have been spared which do not in the least measure prove that the Bishops sit in the Lords House as a third Estate because Clerks shall be chosen to sit in Convocation by Writs directed to the Guardians of the Spiritualties where there are no Bishops or when they are beyond Sea rather evinces the necessity of a Convocation to meet in Consultation as to Ecclesiastical Matters which are only proper for their Function Lastly Let it be observed that his Quotations out of the Author of the Letter pag. 93. as to Doctor Standish his Case are mistaken the Author's words are the Judges said The Lords Spiritual have no Place in Parliament by reason of their Spiritualties in which respect in truth their place is in Convocation but by reason of their Temporal Possessions that is holding their Tempoporal Possessions in nature of Baronies The Scope of that Book is to shew that a Parliament might be held without them who indeed were no Barons but had liberty to sit among them by an Indulgence in respect of their Possessions And at last I am perswaded our Author will hardly be bound by that Opinion for if that be true how can they sit there as a third Estate if their Right to sit there be only as Temporal Barons This Authority is only from Kelway 7 Hen. 8. 184. See the Case at large in Burnet Our Grand Questionist goes on and endeavours to prove and clear that intricate matter as it hath been made touching the Interest the Clergy then had in Parliaments as well as Convocations but chiefly to prove that all the Interest they had in Parliaments was not meerly upon the account of their Temporal Baronies which the Bishops and many of the Abbots then had this he saith is the great but common mistake of the Author of the Letter 'T is first to be observed that he hath not proved that to hold Land by Baron-Service and to be a Baron is all one which by me is left doubtful as appears by what is said in the first Chapter of this Treatise Neither see I any reason why tenere per Baroniam should make a Baron more than Tenere per Militare Servitium should make a Knight Secondly That what he now saith is only a Pursuit of his precedent Conceit that the Bishops sit in the Lord's House in a double Capacity because as he saith there is a Distinction made even in Parliament between the several Estates of the Clergy and Laity How far this is argumentative and how far his Precedents warrant what he affirms I shall examine by and by only in the mean time would desire him to tell me whether they could come to Parliament at all without first receiving the King's Writ and in the next place Whether the King 's Writ imply any other Capacity than as Spiritual Persons holding their Possessions per Servitium Baroniae and voting among the Lords in respect of their Lands which are in their own nature Temporal Estates in the Hands of Spiritual Persons but by their Dedication to God made spiritual also which is as much as can be drawn from what Mr. Selden saith in the place quoted by our Author pag. 151. That they met as Counsellors in the Saxon's time in their Wittena Gemot I will not deny but whether by virtue of any Writ Summons or rather by general Allowance as Counsellors or what other way he cannot prove Records there are none or very few and Historians give but a dark account of those Times and things then one but which way soever they then sate certainly by William I. their right of sitting was much altered the Frame of things being in some measure altered also in so much that they
bring in the Chancellour and Treasurer and such like Officers and that all Estates should enjoy their Liberties 15 E. 3. N. 6 7 8. Here was indeed a Matter concerning Trials of Noble-Men had under Consideration but never reduced to any Law as the Practice of subsequent Times and the late Bill of the Lords about Trials do enough manifest But doth it not appear by this Record that the Bishops were not reckoned Nobles of the Land when he finds the Chancellour and Treasurer and such like Officers attempted to be brought in at that time and so not to have had any Right before But saith our Author it after follows that they may not lose their Temporalities Lands Goods and Chattels Now none were capable to lose their Temporalities but Bishops therefore this Law must have respect to them as well as other Nobles of the Land The Answer to this is very easy that the Clergy who had then all Power did endeavour to bring in their Fellows the other great Officers who were almost all Church-men Simon Langham Arch-bishop of Canterbury was Chancellour William Molso Dean of St. Martins le Grand Receiver and Keeper of the Kings Treasure and Jewels with many others as you may find Baker p. 141. These had Temporalities to lose and such Officers the Church always hoped to have had of their own Tribe but as I said before of this Attempt came no other Effect than to shew their aspiring Thoughts And whatever Opinion the Author of the Iurisdiction of the House of Peers is of as to the Roll of 4 Edw. 3. I believe the Law at this day will not be so taken that a Chancellour being no Peer shall be so tried by reason of his Office I am sure my Lord Keeper Bridgman being no Peer never voted in the House of Lords and the present Lord Chancellour when he gives his Vote goes to his place as a Baron See Hakewell p. 114. Ancient Customs how these great Officers are placed in Parliament when they are Peers and when not and certainly if their placing be different their Trials ought to be so too Neither can it seem reasonable to any considerate Man that a Person though such an Officer should not be capacited to give his Vote as a Baron and yet by virtue of his Office should be tried by Noble-Men Therefore I must take leave to deny what he affirms that they are Peers by virtue of their Office or that they have Right to be present in Parliament in all Cases of Judicature so as to concur in Sentence with the Nobles of the Land as our Author affirms pag. 132. The King may make whom he pleases Chancellour and the Statute assigns his Place but he cannot vote there without the King's Letters Patents to that purpose as I conceive See Old Modus Hakewell p. 14. I have in the first Chapter of this Treatise spoken largely to that Point and shewed in what sense a Bishop may be called Peer of the Realm And pag. 90 and 91. have handled the matter of Proxies therefore may pass over the Case of Arch-bishop Arundel which our Author proposes pag. 128. To the Case of William de la Pool I have spoken before only shall here observe that the submitting his Cause to the King was no waver of his Peerage for the matter never came to any formal Issue consider thâ—… Case of Nicholas Segrave in 31 Edw. 1. Ridley p. 266. who being accused of many Crimes Segrave being summoned thereunto appears in full Parliament confesseth the Fact and submits to the King This was no Waver of any Legal Trial by his Peers nor any disrespect to the Lords who might otherwise have ordered the summoning a Jury to try the Fact but by the King's Pardon that labour was saved The like may be taken notice of in that famous Case between the Earl of Hereford and Essex against the Earl of Glovester and Hertford in 20 Edw. 1. Riley p. 74. Where upon a very long pleading the Case in effect proves to be but this The Earl of Hereford complains to the King of great Robberies Depredations and Murthers committed by the Earl of Glocester in his Lands in Brecknock after the King's Inhibition The King for Remedy of this appoints the Bishop of Ely William of Valence his Uncle Iohn Mettingham and Robert Hertford to hear the Complaints of the said Earl and also the Answer of the said Earl of Glocester and his Servants to the Complaint of the Earl of Hereford and to summon a Jury for the Trial of the same and also commanded Robert Tiptoft Iusticiario suo de Westwell to be there present and to summon the said Delinquents to be before the said Commissioners and that Enquiry should be made per Sacramentum tam Magnatnm quam aliorum proborum Hominum Legalium de partibus Walliae comitat Glocest. They that is the Magnates which it seems were Noble-Men excepted against the taking an Oath and said 't was unheard of and that they would do nothing sine consideratione Parium suorum The Jury give in their Verdict against Glocester the Parties all submit to the King who by the Advice of Arch-bishops Bishops Earls Barons and the rest of those who were of his Counsel declare that the Earl of Glocester had forfeited his Liberties c. The words are Videtur tam ipsi Dom. Regi quam caeteris Praelatis Magnatibus reliquis de Consilio ejus quoad Comitem Glocestriae quod Libertas sua praedicta viz. totum Regale in Terris suis praedictis de Mergannon cum pertinentiis pro se haeredibus suis foris facta est ratione delicti praedicti c. In this Record there are many things Observable First The Bishop of Ely here mentioned was not a Judg in this Case between the two Earls but joyned in Commission with others who were empowered to summon a Jury to enquire of the matter of Fact not to condemn either Party but was only in the nature of an Inquest or Grand-Jury in order to a Trial. 2. That Noble-Men Magnates such as refused to take an Oath were returned of the Jury 3. That the Verdict was given in to the Commissioners notwithstanding some of the Jury were not sworn 4. That the Jury was summoned out of several Counties viz. Glocestershire and Wales Lastly and that for which I have chiefly produced it that this Submission of both Parties to the King was no waver of their Peerage Neither doth it appear that this Award made by the King with the Consent of those Prelates Earls c. was made in Parliament tho it be inter Placita Parliamentaria but only by such private Counsellours as the King thought fit to make use of in that Affair That it was no Parliamentary Judgment is evident from these two Reasons First The putting themselves to the Reference of the King was no putting themselves upon any Trial by their Peers because that should have been done only
Barones Regis were the King's Tenants in Capite Amongst which there were Knights at least And the Homines sui I take it were his great Officers and Justices These made a Select Council acting in Parliament and out of it either in a full Body or contracted by Agreement as I could easily shew But the Tenants in Capite were the King 's ordinary Council and therefore manifestly the Assize there was drawn up and advised by them in full Parliament with the Consent of all the Barons of the Kingdom under which in those ancient Times omnes quodamodo ordines Regni continebantur as Mr. Cambden observes But 't is observable that here 't is Homines sui or Regis to shew that the Justices and others who came not upon the account of Free-hold but as the King's Servants were not to be termed Barones sui A few Years before this there was a Summons for an Assembly at this very place and 't was manifestly no more than a Curia Regis 1. Whereas there were the Barones Terrae at the last above named to this were summoned only Tenants in Capite 2. Whereas then they were to exercise a Legislative Power de Statutis Regni this was only for a Judicial Power such as Tenants in Capite exercised by themselves for 't was only upon the Case of Becket 3. Whereas the former was called Magnum Concilium de Statutis Regni this Magnum Concilium as some call it was but Curia Regis Barones Curiae Regis adjudicaverunt eum esse in Misericordia As Hoveden informs us Now the Question is Whether those Tenants in Capite the Barones Curiae were Barones Regis which that they were I think is very obvious they being by reason of holding of the King obliged to attend at his Court And that these were the King's Barons or Barons of his Court or owing Suit and Service there must needs be synonimous But utterly to silence this Gentleman he grants that Hen. I. was crown'd in an extraordinary Convention of the People that is more than Tenants in Chief consented to that Change in the Succession Now that very King's Charter says 't was Communi Concilio Baronum Regni when among these he comes to mention such as held of him in Chief he calls them his Barons emphatically not but that all were his Barons in a remote sense Si aliquis Baronum meorum vel Comitum sive aliorum qui de me tenent mortuus fuerit haeres suus non redimat Terram suam sicut faciebat tempore Fratris mei This Relief it seems in his Brother's time was uncertain and immoderate and was by him reduced to the old Standard as 't was in Canutus his time as appears by the Comparison of the Laws of both The Earls Relief was eight Horses four with Furniture four without besides Arms and a certain quantity of Gold The Thanus Regis primarius as in King Canutus his Law or qui ei proximus as in Henry the 1st paid for Hereot or Relief which there were synonimous four Horses two with Furniture two without c. The Mediocris Thanus paid one Horse with Furniture and other things more or less according to the Custom of the Places under different Laws Here was Thanus or Baro Regis primarius the same with Baro Major and Thanus Mediocris or Baro Minor one of the alij qui de nobis tenent in Capite mentioned in King John's Charter And surely no Man will say that this Relief was not payable because of tenure in Capite By the 17th of King John it had become customary for the Relief to be paid in Money as appears by his Charter Siquis Comitum vel Baronum nostrorum sive aliorum tenentium de nobis in Capite per Servitium Militare mortuus fuerit relevium debeat habeat hareditatem suam per antiquum relevium scilicet haeres vel haeredes Comitis de Baroniâ Comitis integrâ per centum libras haeres vel haeredes Militis de integro feudo Militis per centum solidos ad plus et qui minus debuerit minus vel secundum antiquam consuetudinem feudorum Here Baro noster was manifestly the same with Thanus Regis in the older Laws and Baro de Baroniá integrâ with Thanus primarius or qui ei proximus The Mediocris Thanus Regis was the Miles or libere tenens one holding in Chief by Knights Service by whatsoever Proportion of a Knights Fee And by this time I think 't is evident that they whom Mr. Hunt supposes to have been the only Barones Regni were in a strict Sense the Barones Regis and but part of the Barons of the Kingdom 3. Whereas he Imagines that if a Tenant in Capite by Knights Service granted out to never so many they all owed the same entire and indivisible Service to the King and were his Tenants in Capite in this he must needs have been mistaken But that I may not seem to misrepresent his Sense I shall transcribe his Words and then endeavour to bring them out of their Clouds The Feudal Baronage says he was as large and as numerous as the Tenures by Knights Service in Chief which were capable of being multiplied several ways for every part of the Fee however divided the Services reserved upon that Fee that were entire and indivisible were to be performed by the several Proprietors of the several parts of the divided Fee In this Paragraph there are three postulata 1. That Tenure by Knights Service in Chief was Tenure by Barony 2. That every Tenure by Knights Service had some entire indivisible Service incident to it 3. That this entire indivisible Service was multiply'd to the benefit of the King upon the Tenants aliening any part of the Fee The two first I agree to his Hands but dispute the third I conceive with good reason For upon the first view 't is evident that if the Grantee of the King's Tenant in Chief by Knights Service would before the Statute of Quia emptores terrarum have been a Tenant in Chief by reason of the entire and indivisible Service incident to the Tenure of his Land by the same reason the Grantees of Land held of the King in Chief by Socage or other Free Tenure would have been Tenants in Capite because of Fealty which is as indivisible an incident to all other Free Tenures as Homage or any thing else belonging to Knights Service And by Consequence upon this Notion since the King even before the pretended Conquest had ratione Coronae the Supream Signiory of all the Land of the Kingdom as the Mirror shews All the Land of the Kingdom would have been held of the King immediately before the Statute of Quia Emptores terrarum And then to be sure ever after since that provided that Lands shall be held as the Feoffor held over which by this opinion must always have been of the King
that of the Nation British Saxon Danish and Latine almost as unintelligible as either of the other that if they had been all digested into the English that was then spoken we should very little better have understood it than we do the French in which the Laws were afterwards rendred And it is no wonder since a Reduction into order was necessary that the King who was to look to the Execution took care to have them in that Language which himself best understood and from whence issued no Inconvenience the former remaining still in the Language in which they had been written CHAP. III. That Mr. Hunt himself in Effect grants that more than Tenants in Chief had right to come to the Great Council of the Nation in which the Nation 's Rights were involved I Do not deny says he but upon a Change in the Succession to the Crown there might have been in this time extraordinary Conventions of the People to declare their universal Assent for better assuring such Successors discountenancing the real Prince and preserving the Peace as in the Case of William the second Henry the first King Stephen and King John c. with an assent of such an Assembly as this at least King John should only if so have made his Kingdom Tributary to the Pope 1. Here he grants that sometimes more than Tenants in Capite assembled at Council 2. That to some purposes such Assemblies were needful not only to quiet the Minds of the People but to transfer over a National Right For he says if ever there were extraordinary Conventions which he owns to have been in some Cases then King John could have made the Kingdom Tributary only in such a Council viz. an extraordinary Convention Wherefore Government being as he says Rei Publicae Communis Sponsio he grants that the Government here was not absolutely in the King and his Tenants in Chief For if it had they might have disposed of all the Nation 's Rights Wherefore in effect he yields That the Men of that Order were not chosen once for all interpretatively by the People in their Consent to the Government But further if he yields us those Authorities which shew that the People of the Land the Free-holders used to assemble for the declaring their Assent to the Supream Governour with what colour can he set aside those Authorities which mention Assemblies to other purposes in as general Terms If an ordinary Free-holder was under the word Populus at an Election to the Crown or Recognition of a Title how comes the Signification to be restrained at other times Will not Vulgus Plebs Populus minor Laici mediocres and the like denote more than Tenants in Capite as well at one publick Assembly in the some King's Reign as at another Unless a prior Law be shewn which excludes the Commons from one Council but admits them to the other But I cannot find any thing more in this Supposition than a downright begging the Question Indeed if William the first made a Conquest of England so as that he divided out all the Lands of the Kingdom to be held of him in Chief And the Alienees of Tenants in Chief still held immediately of the King neither of which will readily be proved then indeed but not till then the Populus Minor at the Councils would be taken for the Tenants in Chief only But the admittance that the presence or consent of more than Tenants in Chief was at any time needful to any Act of rightful Civil Power wholly destroys the supposition of a Conquest unless we can believe that the conquer'd ought to give Laws to the Conqueror or that notwithstanding any kind of Establishment the dernier resort and Supremacy of Power is always in the People Which is a Notion that would unsetle all Governments making them precarious Whereas he himself tells us No Government can be legally or by any lawful Power chang'd but must remain for ever once establish'd CHAP. IV. That even according to Mr. Hunt's Notion of Tenure in Capite all Proprietors of Land as such had till the 49th of H. 3. right to come to Parliament THis though never so strange I think will be granted me that he does if he makes all the Free-holders of the Kingdom Tenants in Capite per Baroniam He supposes that the whole Kingdom was upon the matter turn'd into one great Mannor by William the First all Men made his Tenants And that all the great Possessions by which he must mean the Mannors of which others held were made Baronies Now this Feudal Baronage he says was capable of being multiplied several ways For every part of the Fee however divided the Services reserved upon that Fee that were entire and indivisible were to be performed by the several Proprietors of the several parts of the divided Fee Since he uses this as a Proof of the Multiplication of Baronies according to the Argument Baron-Service was indivisible Thus every Proprietor as he had part of the divided Fee was part of the Baronage and consequently If all the Baronage both Spiritual and Temporal de jure ought to have Summons now to Parliament without respect to Estate or Tenure there would be a great many Pretenders But to be sure when all the Baronage were summoned antiently these inferior Tenants came by his own Rule as owing the Service of Barons and so ratione Tenurae were Barones Regni But the Baronage of England having been always in his Opinion the Lords Spiritual and Temporal and Nobility having been Foudal or because of the Feud the Burgesses being all according to him till about the time of H. 3. under Tenure by Baronage were as good Lords as the best And why were not honest Free-holders so too as well as Traders most of them then 't is likely Mechanicks CHAP. V. Whereas he would set aside the Questions of what the Government was till 49th of H. 3. as impertinent 1. His own Notion by which he would supplant the Labours of others destroys it self while mine maintains what he aims at 2. He puts such matter in Issue for asserting the present Government as can never be maintained 3. He yeilds so much of the Fact against me as sets aside the whole Foundation of his Postscript And yet admit he answers all Objections against his Postscript the Grounds which I go upon are of the most General Use. FOr preventing the Worlds being troubl'd with impertinent Labours and to divert those that thus employ themselves to Undertakings more useful to the Publick advantagious to themselves he thought fit to tell us that the Parliament was always materially the same But we are at a loss to know what he means by materially the same For 't is manifest that according to his Notion if the Government were from the time of our Dispute always in one it would have been materially the same as 't is now and
one another and through the Pride and Ambition of some who thought themselves above that Law And when the numbers of Frank-pledges had that happy Combination still been maintained would through the vast Multiplication of Proprietors have been too great to assemble together upon any Occasion requiring Counsel and serious Debates There is one Difficulty which arises upon the examining this point of Antiquity that is since we rarely meet with Authorities tho some there be which particularly describe such as Citizens and Burgesses as summoned to or present at the General Councils of the Kingdom What shall we think of them To which I am bold to say that even Citizens and Burgesses might have come under the Consideration of Free-holders inter liberos Regni tenentes or Barones Baronagium Barnagium or the like For either they were 1. Corporations by Charter Or 2. Corporations by Prescription And I think it will be probable at least that Property in Land the continuance of which in any Family made Nobility was the occasion of the Priviledges of them all And in such respect the Freemen there were numbred amongst the Nobles tho afterwards when Trade prevailed amongst them the Generality of them might be but quasi optimates and yet by Custom they obtained the name of Barones as in London Warwick the five Ports c. And probably upon the account of the first Erection But that I may not talk wholly at random I shall offer a Scheme of the ancient Polity in relation to them which at least will not be disproved For the first the Corporations by Charter they were of two kinds 1. Such as were incorporated by the King 2. Such as were incorporated by the Subject 1. Of those that were incorporated by the King there were Cities that is Boroughs which had a Bishop's See or else Boroughs only But the Episcopal See making the only difference they fall not here under any different Consideration I conceive that though to these at the time of the Incorporation the King granted several Franchises as Markets Fairs and the like Yet he gave no Right of sending Members to Parliament to them who had it not before but of them that were so incorporated some were Minores tenentes in Capite inferiour Tenants in Chief such as by King John's Charter were where not incorporated to be summoned in general to the Commune Concilium or Curia Regis Many of these for the sake of such Immunities as belonged to free Boroughs consented to be incorporated and thereupon they being one entire Body naturally fell into a Representation and answered together by their Head-boroughs or any other that they chose as one Tenant St. Albans I take it was of this kind the Burgesses of which pleaded that they held the said Vill of the King in Capite ipsi sicut caeteri Burgenses Regni ad Parliamenta Regis cum ea summoneri contigerit per duos comburgenses suos venire debeant prout totis retroactis temporibus venire consueverunt pro omnibus Servitus Regi faciendis quae quidem Servitia iidem Burgenses Antecessores sui Burgenses Villae praedictae tam tempore Domini Edwardi nuper Regis Angliae Patris Regis Progenitorum quam tempore Regis nunc semper ante instans Parliamentum ut pâ—…ittatur 〈◊〉 Nomina quorum Burgonsium sic praedictâ Villâ ad Parliamenta Regis veâ—…entium in rotulis Cancellariae semper irrotulata fuerunt I before had occasion to examine Dr. Brady's Interpretation of the Answer to the â—…ea here the Plea it self comes to be considered And whereas he renders pâ—…o oâ—…us Servitus in lieu of all Services I conceive the Sense to be no more than thus That they held of the King in Chief and that as other Burgesses of the Kingdom they were to be represented at the King's Parliaments when they happened to be summoned by two of their fellow-Burgesses as ever since they were incorporated they had used to come for the performing of any of their Services And that they had not forfeited their Charter nor ought their Corporation to be dissolved for that they had duly performed all their Services And for proof that to Parliament especially they had all along come by Representation they appeal to the Rolls of Chancery Certainly no Man before the Doctor thought that the coming to Parliament excused any Rent or other Service which was incumbent upon them But thus much is obvious from this that here were Minores Barones Tenants in Chief whose Tenure must have been created by Charter who were fallen into a Representation And that this was upon the account of Property in Land which occasioned their Services and their being united as one Tenant But besides these there were Tenants of Honours or Manors in the King's Hands or in the Subjects which were incorporated by the King's Charter and sent their Representatives to Parliament I shall instance only in a Corporation holding of a Subject but incorporated by the King's Charter King John by his Charter to William Brewer who in all likelihood was Lord of the Mannor of Brugwater or Bridgwater grants that Brugwater should be a free Burrough and that it should have Markets and Fairs And 26 of Edward the first when the first Roll of Burgesses begins we find Burgesses for Bridgwater entred amongst the rest And 't is observable that there is not to be found any Charter giving them the priviledg of sending Burgesses nor could such a Priviledg arise by Implication Wherefore they must necessarily have come upon the account of their Property in Land with no other Alteration than that their divided Interests were all conjoyn'd in one 2. But besides these there were some incorporated by Subjects Of those who incorporated them some had Regalia themselves as the Counts Palatine of Chester One of which Leofrick Brother to the Confessor in his life-time incorporated Coventry under the Prior and Monks of Chester Whereupon the Burghers of Coventry were represented in the General Councils of the Kingdom as one entire Body We find that it sent Burgesses to Parliament 26 Edw. 1. and from its first Corporation must needs have done so according to its Plea which was allowed 34 Edw. 1. For it pleads that it was neither Civitas Burgus nor Dominicum Regis That therefore it ought not to be taxt or taliated as such but was to be charged only when the whole County was charged or in the like Proportion and they pray that the Taxors and Collectors may not be suffered to distrain amongst them otherwise than it had been totis retroactis temporibus in all times past since they became one Body that is that ever since they were a Body they us'd not to be taxt as the King's Demesnes whether Cities Boroughs or Manors which might be out of Parliament and even when there was a Parliament they bore the heaviest Burthens But as the County as to the way
of charging or at least as to the Proportion but they having been at Parliament 26 E. 1. which was but eight Years before by Representatives of their own not of the County in general it shews how they had been taxt totis retroactis temporibus But besides the Charters of Counts Palatine erecting Corporations there were others granted by some who were particularly impowered to that purpose or however they might have been confirmed by the King afterwards But I shall give an Example of a Corporation raised by virtne of such a Power given by the King and confirmed afterwards Thurstinus Dei Gratiâ sciatis me dedisse concessisse Concilio Capituli Eborac Beverlac Concilio meorum Faronum meâ Cartâ confirmasse hominibus de Beverlaco omnes libertates iisdem legibus quibus ulli de Eborac habent in suâ Civitate praeterea enim non lateat vos quòd Dominus H. Rex noster concessit nobis potestatem faciendi de bonâ voluntate suâ sua Chartâ confirmavit Statuta nostra Leges nostras juxta formam Burgensium de Eborac c. H. Rex Angliae c. Sciatis me concessisse dedisse hâc Chartâ mea confirmasse Hominibus de Beverlaco liberum Burgagium secundum libertates Leges Consuetudines Burgens de Eboraco suam gildam Mercatorum cum placitis suis Feloneo cum omnibus liberis consuetudinibus libertatibus suis cum omnibus rebus sicut Thurstinus Archiepiscopus ea iis dedit c. There is another Confirmation by King Henry of the Charter by Thurstan and also William Arch-bishop of York to the same free-Borough And also another of King Richard wherein he mentions the Confirmation of the Bishop's Charters by his Grand-Father Tenentes de Villâ Beverlaci in auxiliis tam Regi quam Primogenitoribus cum Communitate praedict Comitatus semper hactenus non cum Communitate Civitatum Burgorum taxari contribuere consuevisse I need not go to prove that these came by reason of their Property in Land they being either the Kings Tenants or the Tenants of Subjects And whatever Priviledges their Interest might prevail with them to suffer to Traders amongst them 't is certain they were granted to the Free-holders 2. But then there were Corporations by Prescription where since now all the Free-men chuse it may seem more difficult to prove that they came upon the account of Property in Land Many of these received Charters in Confirmation of their Priviledges yet if they were taken away would remain good Corporations at the Common Law I may instance in London of which there is this memorable Passage in the Confessors Laws Debet etiam in London quae caput est regni legum semper Curia Domini Regis singulis septimanis die Lunae Hustingis sedere teneri And amongst other things quae huc usque consuetudines suas unâ semper inviolabilitate conservat King John's Charter provides for the ancient Liberties and free Customs of the City of London in particular and of all other Cities Burroughs Vills and Ports and some Charters of other Kings may seem more like new Grants than Confirmations of the old Priviledges But thus much is certain that those Cities Boroughs and Vills which had their Liberties and free Customs confirm'd by Magna Charta 9. H. 3. which was in the same Terms as to that part with King John's were Cities Burroughs and Vills at the Common Law And that we may frame an Idea of these we must have recourse to the old Saxon Laws By them it should seem that there was a greater equality amongst the Masters of Families than afterwards and the Law of Frank-pledges was well suited to such equality when no Man was above giving that Security to the Government upon which St. Edward's Law says Est quaedam summa maxima Securitas per quam omnes Statu firmissimo sustinentur ut unusquisque stabiliet se sub fidejussionis Securitate And as every City or Burrough was a Vill that being the Genus to both as well as an inferior Species the Law provided quod de omnibus Villis sub decimali fidejussione debebant esse universi of these Vills they that had special Priviledges Markets Fairs and the like were free Burroughs And as the Vills so the Burroughs at the Common Law were made up of a certain number of Free-men whose Property might extend far into the Counties These at first were under Tythings Afterwards as in the time of H. 1. Property falling into more Hands within the same Tract of Land or Precinct we find them answering for one another by Twentys the Headburrough was Aldermannus or Praepositus Villae or Burgi Every one of these as a Fidejussor I take it came anciently to the General Council of the Kingdom in his own Person if he pleas'd But very frequently they might intrust their Aldermannus or Headburrough to answer for them But the Franck-pledges discontinuing they might accustom themselves to electing of Members sometimes one sometimes more upon every Summons to Parliament And thereupon in every Burrough at the Common Law the Elections are by all the Free-men which answer to the Franck-pledges formerly except that 't is likely of Old all the Franck-pledges were very considerable Free-holders But still these Burroughs could not take in all the Free-holders nor yet the Vills as anciently consisting of clusters of Inhabitants But if any Man grew wealthy he loved to live by himself in some Castle or large Seat which he might build abroad in the Country Such look'd upon themselves to be too great to give Sureties for their good Behaviour as those that liv'd in Clusters did And by the time of Edw. the First Chivalers and their Children And I take it every considerable Free-holder was a Chivaler or Gentleman were exempted from the Law of Franck-pledges Doubtless every one of these as the Possessionati in Poland came to the General Councils in Person As the Lands were further improved and a free increase of Natures Stores made Men luxurious Great Men put themselves into Straits and were often obliged to sell their Inheritances and to manumit their Servants or release Servile Tenures and the Off-spring of these who themselves were Cheorls or Pesants were according to the Saxon Law which probably enough continued long after the Norman's Acquisition enobled or became Gentlemen by the Descent of five Hides of Land to the third or fourth Generation Thus together with the divisions of Lands amongst the several Children of great Proprietors and subdivisions downwards as the Families branch'd out the Numbers of Free-holders became by King Iohn's time little less than infinite tota regni Nobilitas quasi sub numero non cadebat And this sort of Nobility for the most part to be sure look'd upon themselves to be above Citizens or Burgers and scorn'd to be
258 to A a 263 wherefore the Point of Conquest examined and what improvement is made of the admittance of it 293 to 300 Constitutions of Clarendon expounded and the Bishops Wings clipt there 144 to 166 Convocation of the Clergy 81 82 127 137 S 290 Corporations an account of them and of their ancient Interest in Parliament 276 to 286 3d part Coventry its first Representation in Parliament B b 279 Crimes some that did laedere Majestatem Regiam not capital 172 in marg Curia Regis of various Acceptation 150 Curia Regis how far Mr. W. and Mr. Hunt agree with the Author against Dr. Brady as to its being distinct from the General Council of the Nation V 204 Objection against them where their Notion of it differs from the Authors 205 particular Objections against Mr. W's Notion of it 209 X 210 Mr. Hunt's mistake about it 231 to Y 235 D. DAnby's Plea O 197 Demeasn the Kings of England never had all the Lands of the Kingdom in demeasn 3d part p. 253 to 255 Dictare Sententiam how understood N 179 Doctor Oates vndicated P 222 Doctor Standish his Case 47 S 291 E. EArls and Barons are the Peers of the Realm 22 23 24 R. 263 Earls and Barons consiliarij nati 138 Earl of Arundel's Case O 208 Earl of Hereford and Glocester their Case T 287 V 189 Earl Godwin his Appeal Q 227 Earl of Northumberland 51 54 R 274 275 Earl of Salisbury Kent Huntington their Case 50 Ellis William's Case 35 Errors none by the Bishops absence 47 Estate Bishops but part of a 3d Estate 80 to 85 Exegetical where words used exegetically 52 X 213 Explication of several words quosque Judicium pervenior 155 156 Exposition of words according to the standing 18 to 25 52 X 212 to Y 226 and Q 233 234 F. FErrer's Sir Ralph's Case 39 Fitstephen's Authority examined 77 Fortescuâ—… his Authority B b 271 Form of Writs no Proof of Right 86 Franck-pledges at a Great Council of the Kingdom and who within them B b 273 274 275 283 284 G. GEntlemen how became so C c 285 Glocester Earl and Hereford their Case T 287 and V 189 Godwin Earl his Appeal Q 227 Gomentez and Weston their Cases 37 Grants where the Bishops not comprehended under that word itsextent 32 S 278 279 Government the same before 49 H. 3. as since 3d part 271 to 290 Gurney Thomas 26 H. HAxy Thomas his Case 43 Henry Hotspur's Case S 281 282 283 Huntington's Earl Case 50 S 280 Hunt Mr. the Censure of his Book Pref. to the second Treatise His wrong Translation of non licet in mar 157 His Mistakes Y 229 c. Reasons why he might have spared his Censures Y 228 229 I. IMpeachment when by the Commons the Lords obliged to to try a Commoner 14 Interesse ubi judicium sanguinis tractatur vel exercetur prohibited 158 John Imperial's Case 39 R 264 Irregularity P 221 222 223 Judicial Power in Capital Cases denied the Bishops in the Northern Kingdoms 90 Judicial Power denied them here by Canon Common and Statute Law Vid. Bishops Absence not meerly from the Canons Judgments in which the Bishops had share 11 Judicium a word of various Acceptations 155 Judgments alledged to be void for the Absence of the Bishops 11 195 O 196 Judgments in Parliament and the Curia Regis how reconciled General Pref. V fin K. KEnt Earl S 280 King cannot make an Estate 126 127 King Stephen's Grants reversed at Clarendon 141 142 King Rich. II. undecently reflected on O 194 L. LAwyers confessedly differ from the Questionist as to the Trial of Bishops T 277 and V 194 Laws made upon a dubious Title good 45 46 P 209 to 214 Laws concerning the matter and manner of their making 44 45 Lay-men used to meet with the Clergy in their Councils 157 Lee Sir John's Case 35 Legislative Power in capital Matters allowed to Bishops yet no judicial Power inferred Gen. Pref. 87 88 131 132 and even that an Abuse crept in since Hen. VIII 88 London a Corporation at the Common Law B b 282 Lord Latimer Lions Richard c. 35 Lords of Parliament 36 Lords Temporal expresly named in the Record as sole Iudges 40 58 and R 276 S 280 M. MAnucaptors B b 274 March Earl 22 Mautraver's Case 20 51 279 S 280 281 ibid. Modus tenendi Parl. its Antiquity 121 Molross the Abby its Case and the Authority of that Book answered G 206 207 Mortimer Sir Iohn's case whether judg'd by Act of Parliament 56 to 59 R 262 Mortimer Roger's Case 14 and R 262 N. NAmes equivocal no good Argument from thence P 227 Nevel Lord 35 Nobilitas Major how made 113 Bishops no part of such Nobility S 287 Northumberland Earl R 51 54 274 275 O. OAts Dr. vindicated P 222 Objections from Reason against Mr. W. and Mr. Hunt where they differ from the Autthor's Notion of the Curia Regis 3d part 205 206 Ocle William 26 Old-Castle Sir John 55 Old Modus its Antiquity 121 Omnipotency and the Bishop's Affectation of it in what sense understood by Lord H. 152 153 Orlton's Case R 267 P. PArdons made revocable at Pleasure O 195 Parliament when the word first in use 121 Parliament at Clarendon 139 Peace of the Bishops refusing to give Counsel about it 30 31 R 266 269 Percy Henry's Case 53 Peers of the Realm who 20 21 Pessimae Consuetudines what 140 142 Petrus Blessensis his Testimony 97 98 125 167 168 R 261 Plain dealing 147 Plea of the Earl of Danby O 197 Pool William Duke of Suffolk 13 T 286 Pool Michael's Case 33 34 R 272 Presidents urged against Lord Hollis make for him 14 Proctors or Proxies why the Bishops desire to make them 12 concerning their making them 46 162 197 199 B 200 201 204 205 Proprietors of Land as such their Interest in the Great Council of the Kingdom Y 230 231 and B b 273 to 291 Protestations of the Lord Hollis his Sincerity 6 Protestation made by the Bishops 11 R 2 5 6 7 8 41 42 43 and O 185 to 194 Protestations in the names of the Lords Spiritual and Temporal 8 13 Protomartyr 49 Q. QUestion concerning the Bishops stated 10 11 R. REcapitulation of Arguments against the Bishops being Iudges in case of Blood N 184 Again more fully P 223 224. Q 225. S 277 Rickhil Sir William's Case 48 Reflections upon R. the 2d undecent O 194 Regradation of Peers V 190 S. SAlisbury Earl's Case 50 Sautree William's Case 49 Scheme of the Government as it anciently stood and now stands B b 271 to 291 Scripture against the Bishops their medling in Secular Affairs 134 Scroop Lord. 50 Segrave's Case 61 62 and Q 232 233. T 287 Seniores Populi who meant by them 167 170 Sinister ends in the Parliament 21 R. 2. O 195 Spencer's their Case 48 O 197 198. and Q 234 Standish his Case 47 and S 291 Statute 27. Ed. Ist. c. 3.
p. 146. Gr. Qu p. 146. Ridley p. 86. Gr. Qu. p. 147. Walling p. 109. Baker p. 1â—…4 Dan. p. 214 An 1323. Seld. pri Bar. p. 147. Gr. Qu. p. 144. Gr. Qu. p. 126. 15. E. 3. N. 8 Gr. Qu. p. 128. Gr. Qu p. 132. 31 Edw 1 a N. B. the Submission of the matter to the K. without any Exception by the Lords makes the King sole Iudg and so the Case can no longer go on in any Parliamentary Way b The reason I conceive why the Reference to the King was made by them both was because no Proceedings could be in Parliament in regard the Vâ—… dict was nâ—… returned upon Oath and so in it self null Disc. of Peerage p. 4. Gr. Qu. p. 132. Gr. Qu. p. 134. Gr. Qu. p. 135. Gr Qu. p. 14â—… Gr. Qu. p. 142. Gr. Qu. p. 143. Cook 3 Inst p. 30. 4 E 3. N. 16 17. Milites 5 E. 3. N. 15. Cotton Antid Brittan p. 56. Mr. Hunt p. 156. Hunt p. 133. 166. Dr. Brady against Jani Angl. c. p. 26. c 29. a Ant. Brit. p. 59. b Mr Hunt p. 148. Mr. Hunt p. 150. The King 's ordiâ—…ry setlâ—…d nâ—… established Court was a different shing from the Confluence of Baâ—…ons and Tenents in Capite at those thre great Feasts which were set and appointed times for great and General Councils if there were an Appearance sufficient Brady against Jani Anglorum c. pag. 30. Dr Brady against Jani Angl. p. 30. Vid. 1. Instit. f. 69 b Escuage nest q. penalty puâ—… non se sans de Service de Chivaler Bruertons c. 6. Rep. f. 2. a. Ant. Brit. p. 59 Ibid. p. 57. Ant. Brit. p. 59 Anti Brit. p. 57. Rot. Pat. 48. H. 3. infra P. 30. Rot. Pat. 42. H 3. The Original Record is not now to be found but I have seen an Abridgment of it done by Mr. Selden Mr. W. his second Argument considered Pol. Vir. lib. 11. fol. 188. 16 H. 1. 1 Rolls fol. 11. Ead. lib. 3. f. 58. Spelm. Coâ—…c vol. 2. f. 35. Cron. Eliense Vid. Jus Angl. p. 211. Hist. Norm gest a Stepho Rege f. 93 Antid Brit. p. 59. Mr. W. his third Agument fully answered Anti. Brit. p. 59. This the Hinge of the Controversy as to the Fact Whether the Commons of England were introduced into Parliament or had any Share or Votes in making of Laws for the Government of the Kingdom or had any Communication in Affairs of State otherwise than as represented by the Tenants in Capite before the 49th of Hen. 3. vid. Dr. Brady a-against Mr. Petyt p. 1 2. Mr. Hunt p. 152. Rot. Parl. 4. E. 3. N. 3. les Piers Counts Barons Counts Barons les Piers 4 E. 2. Rot. Parl. Rot. Cart. 5. â—…o m5 n. 33. Rot. Sat. 25. E. 1. n. 38. Rot. Iarl 15 E. 3. a. 50. d. Sta. Westm. 1. 3E 1. 2. Iusti. 156. Rot. Pat. 48 H. 3. paâ—…s unica m. 8. d. Rot. Pat. 43 H. 3. pars unica in 8. n. 10. Vid. Jan. Angl. facies nova p. 246. Both Mr W. and Mr. Hunt argue this may Vid. Mr. H. p. 152. Mr. Hunt p. 152. Eademrus f. 49. Vid. Ian. Angl. facies 〈◊〉 p. 214. â—…ad f. 58. Ricard Hagustaldensâ—… f. 312. Croniceâ—… Eliense Eâ—… vet Regist in Archivis Cant. Arch. Vid Ian. Angl. c. p. 221. Claus. 15. Jo p. 2. m. 7. vid. Ian. c. p. 231. Rot. Claus. 38. H. 3. m 7. c. 2. Ian. Angl. c. p. 245. Rot. Claus. 21. H. 3. m. 7. d. Magna Charta 9. H. 3. Mr. Hunt p. 152. Vid. Jus Angl. ab antiquo c. 8. Eadm supra Rich. Hagulst Ant. Brit. p. 60. Matth. Paris Addit f. 217. Matth. Prâ—…is fol. 978. Ibid. Rot. Pat. 42. H. 3. m. 10. Rot. Pat. 42 H. 3 m. 4. Stat. St. p 27 E. 3. Dr. Brady against Mr. Petyt p. 126. Dr. Brady against Mr. Petyt p. 130. Mr. Hunt p. 156. Mr. Hunt p 1â—…8 Mistakes Mr. Hunt p. 155. Ibid. p. 154. Mr. Hunt p. 154. Mr. Hunt p. 151 179. Vid. Jus Anglorum ab antiquo Addit p. 20 to 32. Mr. Hunt p. 149. See Escuage taxt at such a a Military Assembly Inter Com. de Termin Sâ—… Mich. 4â—… H. 3. r. 4. â—…id Ian. Ang. p 240. Rot. Claus. 47. H. 3. m. 7. do so Page 156. Seld. Tit. Hon. fol. 592. Mr. Hunt p. 148. Rot. Claus. 26 H. 3. pars 1. m. 10. P. 131. P. 148. Contradictio in Terminis P. 165. Pag. 160. Mr. Hunt p. 159. So Dr. Brady consesses out of Mat. Paris against Jan. Ang. c. p. 6 6 Vid. Jus Ang. p 154. Et de scutagiis assidendis submoneri faciemus c. King John's Charter Mr. Hunt p. 166. Page 151. Vid. Jan. Ang. Facies nova throughout Page 156. Mr. Hunt p. 157. Page 157. Mr. Hunt p. 158 Claus. 47. H. 3. m. 7. d. Claus. 29. E. 1. m. 14 d. Mr. Hunt 〈◊〉 p. 158. Vid. Jus Ang. ab antiquo p. 108. Benedictus Abbas sub Effigie Iulij A. 11. f. 72. in Bib. Cot. Cam Ordines Angl. p. 61. Quarto Vid. Jan. Ang. facies nova p. 189. Tit. of Hon. f. 583. Hoveden f. 494. Mr. Hunt p. 153. Magna Charta H. 1. Spelman's Glos. Tit. Hereâ—…tum Spelm. Glos. Tit. Heriot Magna Charta Johannis Rs. P. 163 164. After the Statute of Qua Emptores entire Services aâ—… Fealty Hâ—…rsots and the like might â—…e multiolyed to the Lord upon the Tenants parcelling out the Lands but not before Vid. Talbot's c 8. R. f. 105 a. So Bruerton's c. 6. Rep. f 1. 2. 1 Inst. f. 93. a. Mirror p. 7. 1 Inst. f. 58. The Author of Antid Brit. builds much upon this Authority Antid p. 10. 2 Inst. f. 65. 1 Inst. ibid. Mirror p. 11. Ibid. p. 7. Vid. Spelman 's Councils Vol. 1. f. 340. Rex non potuit distrahere patrimonium Regni sine assensu procerum Dyer 〈◊〉 Eliz. f. 229. b. Magna Charta cap. 32. 2 Inst. f. 66. 1 Instit. f. 142. 2 Instit. f. 67. 14 H. 3. Tit. Prerog Stat. de Hibernia 1 Inst. f. 67. a. Vid. Jus Ang. p. 34 to 58 p. 139. Mr. Petyt's Preface p. 20. So Roâ—… de temp R's Jo. Lord Hales his Collections in Lincolns-Inn lib. Jus Angl. p. 80 to 100. Ibid. p. 112 to 117. Addit p. 90. Jus Angl. p. 99 to 106. Mr. Hunt p. 130. Survey of the Leviathan p. 109. Survey of the Lev. p. 148. Mr. Hunt p. 153. Page 155. Ibid. pag. 157. Supra p. 212. Mr. Hunt p. 122. Ibid. p. 131. Page 129. Page 163. Page 164. Page 173. Page 2. Page 179 180. Page 156. Vid. Postscript p. 28. Mr. Hunt p. 155. Page 148. Page 151. Fortescue de laudibus Legum Ang. p. 38. b. Vocatio Congregatio Populorum Gentium omnium qui ibi omnes convenire debent universi qui sub protectione pace Domini Regis degunt consistunt in Regno praedicto ibi
of settled Prerogative were not taken away from the King he not being named in the Statute By that Statute indeed if a Tenant in Capite aliened with Licence the Alience became Tenant in Capite for the Statute divided the Signiory But how it could be at the Common Law in any other Case than that of Copartners who are but as one Heir and plac'd in the same Relation to the Lord I cannot imagine I find in the Statute of Ireland this of Copartners is mentioned as the Law of England In Regno nostro Angliae talis est Lex Consuetudo quod siquis tenuerit de nobis in Capite habuerit Filias heredes ipso patre defuncto antecessores nostri habuerunt semper nos habuimus cepimus homagium de omnibus hujusmodi Filiabus singulae earum tenerent de nobis in Capite in hoc Casu Which shews that the Case of Copartners being a single Instance of the continuance of the same immediate Service notwithstanding the division of the Fee was an Exception out of a general Rule But I dare say no body that understands any thing of the Feudal Law as it has been received in this or other Nations will be of Mr. Hunt's Opinion in this particular 3dly Mr. H. would have done well to have answered the Objections against the supposed Conquest before he concluded for it and I shall take it for granted 't is a Question heartily begg'd 'till I find an Answer to these Arguments in Ius Anglorum ab antiquo 1. That the Histories of those Times prove undeniably that William the first came in upon Terms which he swore to at his Coronation and solemnly confirmed afterwards This indeed was a Conquest in the Language of those times as 't was distinguish'd from an Hereditary Right but no otherwise Thus in King Iohn's time a Man pleads that his Father had such a thing de Conquestâ—… suo viz. by his own Purchase or Acquisition 2. That Dooms-day-Book it self demonstrates that Men enjoyed their Lands under their old Titles And those Laws of St. Edw. which the Histories assure us were confirmed by Compact with William the first without particular Confirmation of their Estates 3. That we have later Records of the allowance of Titles derived from before the Norman Acquisition nay even of the whole Palatinate of Chester the Title to which was laid only in Descent even after King William's Confirmation 4. That ancient Historians and Dooms-day-Book confirm the Opinion of that Judg in Edw. III. time who informs us that William the first disseized only them that were in Arms against him and forfeited by opposing that Title which the Nation received Till Mr. Hunt has answered these Arguments amongst others in Ius Anglorum ab antiquo I hope he will not be angry that some are so critical that they will not call the first William Conqueror especially since Conquestor and Conquestus cannot now be reduced to their old peaceable Signification And therefore are by no means to be admitted unless we take the sense of the Judicious Lord Clarendon who rebukes Mr. Hobbs for insisting upon William the first his Title by Conquest as being what he himself renounced and abdicated if he ever had it If Mr. Hobbs says that unhappy Great Man Had taken the pains and known where to have been informed of the Proceedings and Transactions of William the Conqueror he would have found Cause to believe that that great King did ever dexterously endeavour from the time that he was assured that his Possession would not be disturbed to divest himself of the Title of a Conqueror and made his legal Claim to what he had got by the Will of Edward the Confessor whose Name was precious to the Nation and who was known to have a great Friendship for that Prince who had now recovered what had been his And he knew so well the ill Consequence which must attend the very imagination that the Nation had lost its Propriety that he made haste to grant them an Assurance that they should still enjoy all the Benefits and Priviledges which were due to them by their own Laws and Customs By which they should be still governed as they were during that King's whole Reign who had enough of the unquestionable Demesnes and Lands belonging to the Crown of which he was then possest without a Rival and belonging to those Great Men who had perish'd with their Posterity in the Battel with Harold to distribute to those who had born such Shares and run such Hazards in his prosperous Adventure And those Laws and Customs which were before the Conquest are the same which the Nation and Kingdom have been since governed by to this day with the Addition of those Statutes and Acts of Parliament which are the Laws of the Successive Kings with which they have gratified their Subjects in providing such new Security for them and Advantages to the Publique as upon the Experience and Observation of the Ages and Times when they were made contributed to the Honour and Glory of the King as well as Happiness of the People Many of which are but the Copies and Transcripts of ancient Land-marks making the Characters more plain and legible of what had been practised and understood in the preceding Ages and the Observations thereof are of the same Profit and Convenience to the King and People And upon Mr. Hobbs his Supposition that William the first at his Reception had dispens'd with the Subjection of the Ecclesiasticks by the Oath he took not to infringe the Liberty of the Church The Lord Clarendon has to the same purpose with the former or rather as evidence that there was no colour of a Conquest these words They who know any thing of that time know that the Oath he took was the same and without any Alteration that all the former Kings since the Crown had rested on a single Head had taken which was at his Coronation after the Bishops and the Barons had taken their Oath to be his true and faithful Subjects The Arch-bishop who crowned him presented that Oath to him which he was to take himself which he willingly did to defend the holy Church of God and the Rectors of the same to govern the universal People subject to him justly to establish equal Laws and to see them justly executed Nor was he more wary in any thing than as hath been said before that the People might imagine that he pretended any other Title to the Government than by the Confessor tho it is true that he did by degrees introduce many of the Norman Customs which were found very useful or convenient and agreeable enough if not the same with what had been formerly practised And the common Reproach of the Laws being from time to time put into French carries no weight with it For there was before that time so rude a Collection of the Laws and in Languages so Forriegn to