what'were the Commons of England as now represented by Knights and Citizens and Burgesses ever an Essential Constituent part of the Parliament from Eternity before man was created Or have they been so ever since Adam Or ever since England was Peopled Or ever since the Britains Romans and Saxons inhabited this Island Certainly there was a time when they began to be so represented and that is the Question between us concerning which whether you or my self be in the Right I durst leave to any impartial Judge F. But notwithstanding your Drs. Answer I think under favour the King and Lords did here allow the Substance of this Petition or Claim as the main Ground and Foundation on which it was built viz. That the Commons had ever been Members of Parliament and therefore that no Law or Statute should be made without their Assents which encroachment upon their Liberties 〈◊〉 seems had been before endeavoured by the King and Lords and therefore let me tell you that the Answer of the King in Parliament is rather a full Concession of the Truth of the Commons claim otherwise it is not to be imagin'd that the King and Lords would have left such a Claim as of ancient Right without any denial or Protestation against it but instead of this the Kings and Lords allow the whole to be true onely the King reserved to himself his Negative Voice of granting or denying what he pleased which the Commons themselves do also allow him in the Conclusion to the Petition it self as you may see if you please to read it at large And father that this Affirmation of the Commons was no other then a Renovation or Memorial of the Ancient Law of the Land in that Point is more fully explained and Confirmed by a Petition to King Edward 2d in Parliament of all the Bishops Prelates Counts Barons and others of the Commonalty in the 18th of his Reign about an 10◠years before this of 9th Henry the 5th setting forth that they held their Mannours of the King Capite as well within the Forests as without to which Mannours they held Gasz i. e. Wast Appendant and of which the Seignories had been rented out by the Acre half Acre and Rude in improving their said Mannours and that thereupon the Officers of the King had made Seisure thereof because they had not the Kings License so to do and therefore pray that they may improve their said Mannours c. to which Petition it was answered by the King and his learned Council in Parliament that this could not be done without a new Law to do which the Commonalty of the Land will never Assent and concludes Infra coram Rege from whence I make these Observations that the King and his Council do here declare it as the ancient Custom of England that no new Law could then be without the Assent of the Commons or Commonalty of the Land and also that this Commonalty was a distinct Body from the Commonalty of the Tenants in Capite before mentioned And besides this I can shew you divers precedents to the same purpose and particularly a Declaration or Protestation to Edward 3d. by the Commons in Parliament that they would not be obliged to any Statutes or Ordinances without the Assent of the said Commons which is also farther confirmed by another Petition of right or a Protestation of the Commons to King Richard the 2d as it is to be found in the Parliament Rolls of 6th Richard 2d Pt. 1. m. 52. wherein they pray against a pretended Statute made by the King and the Lords against those who in the Statute of Henry the 4th are called Lollards in which they set forth that the said Statute was never assented to by the Commons and therefore pray that it be annulled and pray observe the Reason for that it was not their intent to be justified nor to oblige themselves or their Successors to the Prelates more than their Ancestors have been in times pass'd From all which we may observe that the Commons do by all these Petitions and Protestations make as strong a claim by Prescription for themselves and their Ancestors not being bound by the Acts of the Bishops and Lords as the King could make for himself and his Ancestors touching his own Prerogative by Prescription But as for your Queries on this Petition since they are not your own give me leave to tell you I look upon them as impertinent for who ever suppos'd that the Commons claim'd a right by Prescription ever since the Creation or ever since the first Peopleing of this Island since any Body may see that this Word ever is to be understood according to the Nature of the Subject in hand viz. from the first Institution of the Saxon Government in this Island now pray give me leave to put you a Case suppose you should affirm that the Crown of England hath ever been Successive and not Elective wou'd it not be meer Cavilling to ask you Whither it was so pure Divino ever since Adam but as you will leave it to any impartial judge who is in the Right you or I so shall I likewise leave it to them to consider which is most likely that your Self your Dr. and some of our Modern Antiquaries should make the House of Commons no ancienter than about the latter end of Henry the 3d or middle of Edward the 1st Reign or the constant Judgment of both Houses of Parliament with the Assent of the King and his Learned Council who have insisted upon the Consent of the Commons as their ancient and undoubted Right beyond all time of Memory M. I must confess you have proved it plain enough that it was the constant opinion of more than one Parliament that the Commons had been before the 49th of Henry the 3d Members of the great Council of the Nation But how long before that they do not set forth but since Parliaments are no more infallible than general Councils I hope you will pardon me if I do not give absolute Credit to their Testimony since in an illiterate Age as that was in which the Commons make this Petition it might happen that not onely they but the King Himself and his Council at that time might not certainly know how long or how little a time the Commons had been summoned to Parliament therefore since all the Writs of summons to them before the 49th of Henry the 3d are lost I pray shew me from this general Right of Prescription you so much talk of that there must have been any Commons summoned to Parliament before that time for I have now somewhat very Material out of Mr. Prins Parliamentary Register to Object against Mr. Lambard's Argument from the Plea of the Tenants in ancient demesne being exempted by Prescription from paying to the wages of Knights of the Shires as you told me at our last Meeting but one but first let me hear the rest of your Arguments from this
accepit c. Now pray tell me what Common Council was this Of the Bishops and chief Men of the Kingdom that Anselm referred himself to Was it not ex more by Custom You cannot find in Eadmer any Summons to it neither Rex asâ—ivit nor praecepâ—o Regis convenerunt nor Rex sanctione suâ adunavit In short not to multiply Examples look where you will in Eadmerus or any other of the ancient Historians you have cited and you will still find that the Persons who met ex more and without any Summons were the same who Assembled by the Kings Summons at other times that is the Principes and Episcoâ—i Regni or Terrae or called more generally Priâ—ates utriusque ordinis or the Barones or Majores Regni who did at these great â—easts pro more go to Court and hold a solemn Curia or great Council there And that these made up the Vniversity or whole Body of the Kingdom pray see what Matt. Paris says In die Pentecostes Dominus Rex Anglorum Loâ—dini Festum tenens Magnum serenissimum â—unc compositâ per Regni Vniversitatem Eleganti Epistolâ c. This was about the Pope's Exactions as hath been before delivered And Hen. III. in his Letter to the Pope calls the same Persons Magnates Angliae which in his Letter to the Cardinals about the same matter he calls Magnates Nostri as you may see in the former Citations of them F. But pray give me leave to ask you this question might not our first Norman Kings often Summon the Common Council of the Kingdom at one of the said usual Feasts since it was so much for the conveniency of the Bishops great Lords and Tenants in Capite who I grant were then all Members of the Great Council to meet all the rest of the Kingdom or Representatives of the Commons at the same time Though the Writers you have quoted may not mention their being Summoned at all And as for the Writs of Summons those of much later Parliaments being lost how can it be expected we should now prove their being Summoned so many Year before M. I confess it might be so that upon extraordinary business and when the occasion was great and the King desired a great and full appearance they might also receive an express Summons at those times But then I must desire you to shew us any mention of a Summons to any of these Common Councils which when called at other times are most constantly mentioned in this Author And I desire to know of you what you will say to those words pro more convenit which is spoken of the most general Councils when the Community of the Kingdom met at the King's Court You cannot deny but that the Tenants in Capite were the Kings Barones Milites Magnates c. Upon this we will joyn issue And I affirm without bringing Proofs which are infinite in this Case that all the Bishops Earls and Barons of England did hold their Lands Earldoms and Baronies of the Crown or which is all one of the King as of his Person and that was in Capite William the Conqueror as I said before divided most of the Lands in England amongst his great followers to hold of him he made Earls and Barons such as he pleased They and their Descendants held upon the same Terms with the first grantors which was to find so many Horse and Arms and do such and such Services both Titles and Lands were Forfeitable for Treason or Felony to the King did Homage for them and every Bishop Earl and Baron of England was in those circumstances and held of the King after this manner Other Lands were given to other Persons for meaner Services as to his Woodwards Foresters Hunts-men Faulconers Cooks Chamberlains Gouldsinlibs Bayliffs of Mannours in his own hands and many other Officers which in Doomsday-Book are called Terrae Thanorum Regis and sometimes servientium Regis And I doubt not whatever the Notion of Petyt Sergeanty now is but that originally this holding of Lands was the true Tenure not but presenting the Lord with a Bow an Arrow a pair of Spurs every Year c. might also be called Petyt Serjeanty though not so properly as the other F. Not to multiply words to no purpose I think your Reply is far from being Satisfactory for in the first place it is very unreasonable to demand that we should now shew the express Summons to these common Councils which were not held de more since you know that all antient Records of that kind are destroyed and lost for if we could produce them at this day the difference between us and those of your Opinion would quickly be at an end as appears by those great Councils which are said expresly by the Historians I have cited to have been summoned and yet no such Writs of Summons are to be found nor is it any good Argument that because our ancient Historians mention no distinct Summons to the great Councils when met at the usual times of the meeting of the Tenants in Capite that therefore there were none such since we find they often pass by much more material Matters than this And though I grant that the Tenants in Capite were then part of the great Council of the Barones Milites Magnates Regni yet does it not follow for all this that none but the Kings Barons and Tenants in Capite were Members of this great Council since there might be in those times other Barons or great Freeholders who though they held their Lands of the Tenants in Capite yet might be there as Knights of Shires or else appear in Person at those Assemblies as well as the other and besides there were others who though they did not hold of the King in Capite but of some great Honor or Castle or else of some Abbot or Prior yet were Men of very great Estates and very numerous all which must otherwise have had their Estates tax'd and Laws made for them without nay against the consent of themselves or any to represent them Nor is your Assertion at all true That William the Conqueror divided most of the Lands in England to be held of him in Capite For besides those Servants and Officers you last mentioned above two third parts of the Lands of the Abbies and Priories in England were not held as also much other Lands in Kent and other Countries per Baroniam or Knights Service but in libera Elecmosina only or Socage as I have already prov'd and consequently neither they nor their Tenants could according to your Hypothesis have any Representatives in Parliament And farther you your self grant that those Lands you mention which were given out by your Conqueror to his Woodwards Foresters c. did not capacitate them to appear in Parliament since their Tenure was only by Petyt Serjeanty and not by Knights Service Nor could they become the King's Tenants in ancient Demesne because such Tenants
French Peasants at this day and so were not Reckoned among the Freemen all Freedom consisting then in so much Freehold Lands held in a Man 's own right or being Freemen of some City or Burrough Town and this gives us a reason why Copy-holders and Tenants for years have no Vote in Parliament at this day since it is certain and all our Law Books allow it that at the first all Copy-hold Estates were held by Villenage and the owners of them at first the Villani or Tillers of the Demefnes of the Lord of that Town there being at first no Free-hold less then that of a whole Township since a Mannour and therefore all Copy-holders and Tenants for years or at Will though Freemen are not admitted to have Votes at this day because as I said before Freedom anciently consisted in the Inheritance or Free-hold Estate of Land or in Riches in Trade or Traffick Leases for Life and Years being not known or at least not commonly in Use in those days and hence it is that when Estates of Free-hold came to be divided into small Parcels all Free-holders till the Statutes of Henry IV. and VI. which we have before cited were as much capable of giving their Votes at the Election of Knights of Shires as the best and greatest Tenant in Capite in England till it was reduced by those Statutes to 40 s. Freehold per Annum these Freeholders and Burgesses of Towns being anciently looked upon in the Eye of the Law as the only Freemen and it was these Freeholders alone who owed Suit and Service to the County Court and were amerced if they did not appear This being premised and sufficiently understood will give us a very good account why Copy-holder and Lease-holders for years do not give any Votes at Elections of Knights of Shires and yet the Parliament may still continue the Representative of all the Freemen of the Nation as the People of Rome and the Territories about it were of all the Romans though there were a great many Liberti and in Inqui lini who sure were Freemen and not Slaves and yet had no Votes in theirs Comitiis Centuriatis or general Assemblies of all the Roman Citizens But that the Liberi homines Libere Tenentes de Regno must take in more than your Tenants in Capite the Doctor himself is at last forced to confess in his Glossary notwithstanding his maintaining the contrary in the body of his Book viz. that the Liberi Homines Libere Tenentes mentioned in Iohn's Magna Charta were not only the Tenants in Capite but their Retinue and Tenants in Military Service also and whom he there supposes to have been then the only men of Honour Faith and Reputation in the Kingdom and if so might certainly have been chosen Knights of Shires as well as any of the Tenants in Capite though this is but Argumentum ad Hominem for the truth is that the Mesne Tenants by Military Service were not the only men of Faith and Honour in those times since it is certain the Kings Tenants in Peâ—yt Serjeantry and of some Honour or Castle or else his Tenants in Socage besides those who held of other Mesne Lords and the Tenants of those Abbots and Priors who did not hold in Capite and yet were very numerous were men of as much Faith and Honour as those that did since many of them possest as good if not better Estates than the Tenants in Capite themselves so that you are certainly mistaken in matter of Fact when you say the whole force and strength of the Nation lay in their hands for if you mean Legal force I have already proved that the Tenants in Capite had no Legal right to give away the Estates of their Mesne Tenants or to make Laws for them without their consents who were altogether as free as themselves Servitiis suis debitis solum-modo exceptis as Bracton tells us much less for so great a Body of Men as I now mentioned who never held of them at all and consequently could not upon your own Hypothesis be ever represented by them but if you mean a Physical strength or force though this can give no Natural much less Legal right for one Man to Lord it over another yet even this was much farther from truth since the Mesne Tenants of all sorts as well by Military Service as in Socage together with those above mentioned who never held of the Tenants in Capite at all made six times a greater Body of Men both for numbers as well as Estates then all the Tenants in Capite taken together But to conclude neither is your remark upon my Authorities from Gheller and Durham at all to the purpose for I have sufficiently proved that those County Palatines were not at first concluded within the general Laws and Taxes of the Kingdom since they had their particular Councils for both within themselves as the Supplication of the Estates of the County Palatine of Chester sufficiently declares and certainly Durham had the like Priviledges since I never heard that the Men in that County were more Slaves to their Bishop then the Cheshire Men to their Earl and tho I grant that about the confused Times of King Hen. VI. there was a great breach made on the ancient Liberties of these two Counties Palatines and if the King and Parliament made Laws for and Levyed Taxes upon them though they had no Representatives therein this proceeded partly from their being over-powered by the rest of the Nation and partly by the ease they found in being excused from the Expences of Knights of Shires and Burgesses which all the rest of the Kingdom was at that time liable to and which came to a great deal of Money Four shillings per diem being in those days more then Forty Shillings now and yet you see at last they were aware of their Errour and at their request got the Priviledge of having Representatives in Parliament of their own choosing as well as the rest of the Kingdom and if this had not been a certain right of English Subjects how came the Welsh Counties which were anciently no part of the Kingdom of England to have been admitted to choose one Knight for each County and Burgesses for each Burrough Town as well in North Wales as South Wales though both these were Conquered Countries at the first and incorporated to England by particular Statutes and therefore we have no reason to deny the Truth of Bracton's and Fortescue's assertion that no Laws are made nor Taxes imposed in England sine consensu communi â—uius Regni or as the latter truly adds in Parliamento and certainly this word common Assent must take in all their Assents who had Estates either in Land or other Riches at that time when this Law was Established But leaving this dispute about Scotland and the County Palatines pray make an end for it grows late and give me the rest of your Reasons
no man will say that their Acclamations and crying yea yea will make our Kings Elective any more than it could do it in the Case of K. William who had a Title by Conquest precedent to this prâ—tended Election tho' I grant this custom may have been in use ever fined this Coronation of the Conqueror But that King William claimed indeed by Conquest and by no other Title let us not mind his specious colourable pretences but his actions which are the best Interpreters of the Thoughts of Princes and we shall find that thorough all his Reign he Governed this Kingdom as a Conqueror and this I shall prove by making good the three Instances I have already given of his great alterations of the Property Laws and Civil Liberties of the People of this Nation to begin with the first of these For the proof of which I shall make use of the Authority of Gervace of Tiâ—bury a considerable Officer in the Exchequer in the time of Henry the Second and who received his information from Henry of Bloâ—s Bishop of Winchester and Grand-child to the Conqâ—eror who is most full to that purpose which he thus delivers in the Manuscript Treatise called the black book of the Exchequer which I shall read to you according to the Learned Dr. B's Translation of it After the Conquest of the Kingdom and the just subversion of the Rebels when the King himself and his great men had viewed and surveyed their new acquests there was a strict enquiry made who they were which had fought against the King and secured themselves by Flight from these and the Heirs of such as were slain in the Field all hopes of possessing either Lands or Rents were cut off for they counted it a great favour to have their Lives given them But such as were called and sollicited to fight against King William and did not if by an humble submission they could gain the Favour of their Lords and Masters they then had the liberty of possessing somewhat in their own persons but without any right of leaving it to their Posterity their Children enjoying it only at the Will of their Lords to whom when they became unacceptable they were every way outed of their Estates neither would any restore what they had taken away And when the miserable Natives represented their Grievances publickly to the King informing him how they were spoiled of their Fortunes and that without redress they must be forced to pass into other Countries At length upon consultation it was ordered that what they could obtain of their Lords by way of Desert or Lawful Bargain they should hold by â—unqestionable Right but should not claim any thing from the time the Nation was Conquered under the Title of Succession or Descent upon what great consideration this was done is manifest says Gervacâ— for they being obliged to compliance and obedience to purchase their Lords â—avour therefore whoever of the Conquered Nation Possessed Lands c. obtained them not as if they were their Right by Succession or Inheritance but as a reward of their service or by some intervening agreement This alone were sufficient coming from an Author of such Credit and living so very near the time but besides his I shall give you the Authority of divers other Authors to the same purpose and particularly Ordericus Vitalis whom you but now cited tells us how William the first circumvented the two great Earls of Moreâ—a and that after Edwin was slain and Morcar imprisoned then King William began to shew himself and gave his Assistants the best and most considerable Counties in England and made Rich Collonels and Captains of very mean Normans and that he thus disposed of whole Counties to divers great men appears by Domesday Book wherein it is seen that the whole County of Chester was given by the Conqueror to â—upus a Norman so likewise the greatest part of Shropshire was given to Monâ—gomery And further he took away from the English their Estates and gave them to his Normans and this he did from his first coming in for Fitz-Osbern was made Earl of Arundel and Hereford at his first coming in and was Lord of Bettivil in Normandy and established the Laws of that Town at Hereford Alan Earl of Bâ—itain had all Earl Edwin's Lands given to him at the Seige of York about three years after his arrival to these I may add the 795 Mannors Robert Earl of Morâ—ton in Normandy and Cornwal in England had given to him by K. William so likewise â—lan Earl of Britain and Richmond 442 Mannors and Ieffery Bishop of Constance had 280 Mannâ—rs given him by the Conqueror besides many other Lands of the Saxon Earls Thains c. were all given to the Normans who took their Title from King William's Conquering Sword So that I think it is very evident that this King had distributed most of the Lands of the Nation to his Norman's long before the survey was begun and by that infallible Record it is clear that he gave near all the Lands of the Nation to his followers and very little or none to the English who held that they had hys new Title and new services from the Conqueror or his great Lords or became Tenants to or Drudges upon their own Lands as we heard before from Bracton and Fleta Here is enough to satisfie any unbyassed person that thâ— Conqueror did not lay by his Sword after the Battle of Hastings F. In answer to what you have now said concerning your Conquerors taking away the Lands of a great many of the English Nobility and Gentry it is so apparent in matter of Fact that it were a high piece of impudence to go about to deny it yet will it not therefore follow that what he thus disposed of were almost all the Lands of England as I shall shew you by and by but in the mean time to let you see that I am a fair adversary I will at present suppose that K. William took away all the Lands from the former owners and gave them to his followers who helpt him in his Conquest but these were not only the Normans his Subjects but French Flemmings Anjovins Britains Poictovins and People of other Natioâ—s who made up a great part of his Army and came in with him under great and considerable men their Leaders and whom your Dr. tells us came not out of staâ—k love and kindness without any consideration of sharing with and under him in the Conquest Now I desire to know by what Law or Act of theirs they thus constituted K. William an Absolute Monarch over them and their Descendants For as for the Normans tho' they were it's true his subjects yet they enjoyed divers considerable Rights and Priviledges at home and surely never intended to come over hither to make themselves as great Slaves as the People they had Conquered much less can it be supposed of these of other Nations who were not subjects to Duke William before
tho' they themselves remained free men but your Dr. from whom you borrow this is very much out in his application of those passages he cites for neither of those Authors do affirm this of all owners of Lands whatsoever but only there to give us the Original of Soccage Tennants on the Kings Demeasnes as appears by Bracton's Title to that Chapter from whence the Dr. cites this passage which is de diversis conditionibus personarum tenentium in dominicis Domini Regis and the first words of this chapter make it yet plainer beginning thus in Dominico Domini Regis plura sunt genera hominum sunt enim ibi servi sive Nativi ante Conquestum in Conquestu post Conquestum and under these last ranges the persons you mentioned but Fleta is more exact in his Chapter de Sokemannis where he tells us that these men were Tenants of the Kings Ancient Mannors in Demeasne quia hujusmodi cultores Regis dignoscuntur provisa fuit quies nâ— sectas facerent ad Comitatum vel hundredum tamen pro terra quorum congregationem tune socam appellarunt hinc est quod Sokemanni hodie dicuntur esse So that tho' King William might permit his Ancient Tenants to be thus outed of their Estates they held in his own Demeasnes yet does it not therefore follow that he took away the Estates of the Ancient Owners all over England of whatsoever Tenure they were or of whomsoever held But as for your quotation out of Mat. Paris it proves no more than what I readily grant that King William after his return out of Normandy liberally rewarded his Followers with the Estates of the English which might he only of such as fought against him at the Battle of Hastings and as for that little which was left them which he says was put under the Yoak of a perpetual servitude he means no more by this expression than that new Tenure of Knights service which King William imposed upon them as this Author in the very next leaf speaking of the Lands of the Bishopricks and Abbies which were held before free from all secular servitude sub servitute statuit Militari and therefore you seem to contradict your self when contrary to your own Author Sir William Dugdale you deny the truth of any part of the Story because that in Doomesday book the name of Edwin of Sharnborn is not to be found and that William de Albeni is not named amongst the owners of that Mannor which is not material since this William might obtain a share therein after this Survey was made and as for Sharnborn himself his not being there mentioned is no argument that he had no Lands within that Mannor or the other that is mentioned in that Narrative since oftentimes the chief Lords of the Fee are only mentioned in Doomesday book tho' all the Proprietors under them are not particularly named but it is in vain to discourse any longer with you upon the Subject of your Conquerors taking away the Lands of English owners I have given you my opinion and the reasons against it and if you are not of my mind I cannot help it therefore pray go on to your next head and shew me by sufficient Authorities that King William as a Conqueror altered all the Laws and Customs of this Kingdom M. I will not undertake to prove that he altered all the Laws of England and brought in quite new ones yet that he did so in great part and that by his sole Authority I think I can prove by sufficient Testimonies and therefore I shall begin with that of Eadmer a Monk of Canterbury a companion of Archbishop Lanfranc's who tells us in his History that William designing to establish in England those Usages and Laws which his Ancestors and he observed in Normandy made such persons Bishops Abbots and other Principal men through the whole Nation who could not be thought so unworthy as to be guilty of any reluctancy and disobedience to them knowing by whom and to what they were raised all Divine and Humane things he ordered at his pleasure And after the Historian hath recounted in what things he disallowed the Authority of the Pope and Archbishop he concludes thus But what he did in secular matters I forbear to write because it is not my purpose and because also any one may from what hath been delivered guess what he did in seculars From which I think nothing is plainer than that K. William did not only design to alter many things in the Laws and Customs of England but did also actually do it since to that end he made the Bishops Abbots and other Principal men who were to be Judges in all Courts such as he could wholly confide in now that K. William govern'd the Nation as Conqueror and did so live and repute himself so to be and as such brought in and imposed new Laws upon the People of this Nation is as clear as I shall prove from these particulars first The Justiciaries or cheif Justices the Chancellors the Lawyers the Ministerial Officers and under Judges Earls Sheriffs Bailiffs Hundre duties were all Normans from his first coming until above a hundred years after as I can make it out by particular instances and undeniable Reasons were not the Catalogues too long to be here inserted If therefore the Justiciaries Chancellors Earls Sheriffs Lords of Mannors such as heard Causes and gave Judgment were Normans if the Lawyers and Pleaders were also Normans the Pleadings and Judgments in their several Courts musts of necessity have been in that Language and the Law also I mean the Norman Law otherwise they had said and done they knew not what and Judged they knew not how especially when the controversies were to be determined by Military Men as Earls Sheriffs Lords of Mannors c. that understood not the English Tongue or Law or when the cheif Justiciary himself was a Military Man as it often happen'd and understood only the Norman Language and 't is hardly to be believed these Men would give themselves the trouble of learning and understanding the English Law and Language Secondly Tho' we have many Laws and Customs from the Northern People and North parts of Germany from whence both Saxons and Normans came yet after the Conquest the Bulk and Main of our Laws were brought hither from Normandy by the Conqueror from whence we received the Tenures and the manner of holding our Estates in every respect from whence also have we received the Customs incident to those Estates And likewise the Quality of them being most of them feudal and enjoyed under several Military Conditions and services so that of necessary consequence from thence we must receive the Laws also by which these Tenures and the Customs incident to them were regulated and by which every mans right in such Estates was secured according to the Nature of them from Normandy and brought in by the Conqueror we received most if not all
was that of the free burrough or Tything wherein by the Laws of King Edward the Confessor the Tythingman or Head burrough was the Judge who as that Law tells us determined all suits and differences arising among Neighbours of the same Tything concerning petty Trespasses on one anothers grounds which if they could not be there determined might then be brought before the Court Baron which was incident to every Mannor and wherein the Suitors and not the Lord nor his Steward were the Judges and this as Sir Edward Coke tells us was first instituted for the ease of the Tenants and for the ending of Debts and Damages under Potty Shillings at home as it were at their own doors and let me tell you by the way that sorty Shillings was theo near as much as forty pound is now and if the business could not be ended here or was of too high a nature it was then brought into the Hundred Court where the Hundreder together with the Suitors were Judges and if they had not Justice there they might then remove it into the Court of Trithing or Lathe which was not the smaller Court of the Tithing mentioned nor yet the Court Leet but a particular Court consisting of three or four Hundreds which tho' now quite lost was in being at the time of the Statute of Merton as I shall shew you by and by and if the business could not be decided in the Trithing it was then removed to the Shire or County Court as Mr. Lambert shews in the Laws of King Edward which was then held as now from Month to Month and in which as well as in the Hundred Court the Suitors alone were Judges and tho' it can now only hold Pleas unless it be by Writ of Justices of any Debt or Damage to the value of Forty Shillings or above yet we â—ind from ancient Authors that this Court was so considerable that we have diverse examples of Causes between the greatest Persons of England and for Lands of great value begun and determined in this Court thus Eadmertes relates the great Trial at Pinnesden-heath between Odo Bishop of Bayenâ— half Brother to your Conqueror and by him created Earl of Kent and Lanfrank Archbishop of Canterbury concerning divers Mannors in Kent and other Counties whereof Earl Odo had diseized the See of Canterbury in the time of Arch-bishop Stigand his Predecessor whereupon the Arch-bishop Petitioned the King that Justice might be done him secundem Legem Terrae and the King thereupon sends forth a Writ to summon a County Court the debate lasted three days before the Freemen of the County of Kent in the presence of many Chiefmen Bishops and Lords and others skilful in the Laws and Judgment passed for the Arch-bishop Lanfrank by the Votes of the Freemen Or primorum or proboâ—â—â— hominum as the Historian calls them So that to conclude this head if no suit could be begun in those days but what was first commenced in the Hundred Court no distringas could issue forth till three demands were made in the Hundred and from thence to be removed to the County Court where regularly all civil causes were try'd by the Suitors as the only Judges as well as in the Hundred Court and Court Baron then it will necessarily follow that unless you can prove which I think is impossible that all the English were at that time Slaves and Villains and had no Free-hold of any sort left them that all Pleading and Proceedings in any of those Courts being before meer Englishmen must have been in English and no other Language so that after all this great cry nor a twentieth part of the Suits in England were brought to London And as for Criminal Causes unless in cases of Treason all Murthers and other Felonies were Tryed and Judged in the Country either within the particular Jurisdictions of Bishops Abbots or great Lords or else of such Cities and Towns who had the Priviledges of Infangthief and Outfangthief together with Fossa and Furca that is a Pit to drown and a Gallows to hang Malefactors and if the offence was done in the body of the County they were then tryed and condemned in the County Court Justices Itinerant not being in use till Henry the seconds Reign M I must confess you have given me a great deal of light in these matters more than I had before but as I shall not dispute whether in the lowest Courts such as the Tythings and Court Barons the smaller English Free-holders might not Judge of Petty causes amongst themselves yet that in those greater causes were brought in the Hundred and County Courts which only the greater Fleemen of the Hundred or County were Judges who these Freemen were Dr. B. hath sufficiently taught us in his Commenes upon the Conquerors Laws as also in his Glossary viz. That they were Tenants in Military Service who in those times were the only great Freemen of the Kingdom and quite different from our ordinary Free-holders at this day These were the Men the only legal Men that named and chose Juries and served on Juries themselves both in the County and Hundred Court and dispatched all Country business under the great Officers I do not deny but that there might be other lesser Freemen in those times but what their quality was farther than that their Persons and Blood was Free that is they were not Nativi or Bondmen it will give a knowing man trouble to discover it to us we find in every leaf of Doomesday Socmen liberi homines Possessors of small parcels of Land but what there quality was and of what interest in the Nation Dicat Apollo no Man yet hath made it out nor can it be done by the account we have of ordinary Free-men for a Century or two last past And for further proof of this That none but Tenants in Capite or Military Tenants at least could be Judges in the County Court appears by the Laws of King Henry the first wherein it is expresly said Regis Iudices Barones Comitatus qui liberas in t is terras habent per quos debent causae singulorum alterna prosecutione tractari c. So that these Barons of the County being certainly Feudal Tenants this service of being suitors to the County and Hundred Courts was a service incident to their Tenures and then it will also follow that those Primores and probi Viri who as you have now related tryed this Cause between Earl Odo and Archbishop Lanfranc and who let me tell you were not only of the County of Kent but of other Counties in England where the Mannors and Lands lay as Eadmerus shews us and who were the Jurors in this great Cause consisted of the great Military Tenants that were not Barons and the less which were the Probi Viri for it can be no ways probable that the ordinary Freemen which made the greatest number and were all bound to
things being considered it is no wonder if the Judges and Clerks of Parliament who were in those days entrusted with the drawing up all Acts of Parliament being greater Masters of the French than Latin Tongues chose rather to draw them up in the former and thus it continued until the Reign of Henry the seventh when our Statutes began first to be drawn up and enrolled in English M I confess you have given me a greater light in this matter than I had before yet I suppose you cannot deny that the Tenure of Knights Service with those clogs that belong to it of Wardship Marriage and Relief were all derived from the Normans as appears by the grand customer of Normandy which I have already menâ—ioned so that tho' it be true that all these are now taken away by a late Statute of K. Charles the second yet since this Tenure and those services are not found among the Saxon Laws there cannot be a greater proof of the ancient power of the Conqueror or of the servitude imposed upon the Nation by him and therefore I look upon it as a very imprudent part of the late K. Charles to part with so great a tye which his Father and all his Predecessors had over the Persons and Estates of all the Nobility and Gentry of the Kingdom F. I shall not take upon me to decide whether it were Politickly done or not of K. Charles the second to part with the Wardship and Services of his Tenants by Knights Service but this much is certain that considering the abuses and corruptions that had crept into that Tenure by degrees since the first institution both by the unfit Marriages of the Heirs as also by the waste that was often times commited on the Wards Estate during his Minority it was certainly a very great grievance and burthen to the subject and considering how many of those Wardships were begged by hungry Courtiers they were of no considerable profit to the Crown and tho' I grant they were a very great tye or rather clog upon the Estates of the Nobility and Gentry of this Kingdom yet it did not thereby produce any such love or obedience as would retain the Tenents better in their duty before than since they were granted away for the forfeitures for Treason and Felony and also Fines for Alienations and are reserved to the Grown now as they were before and as for any love or respect which was anciently paid by the Heir how could there be any such thing since the King granted away the custody of the Heir and his Lands to persons who for the most part made a meer prey of them so that they were often Married against their consents and their Estates were delivered to them wasted and spoiled besides also what was exacted from them for reliefs and Ouster lismaines we need not wonder if it were rather a cause of secret discontent and hatred of the Kings Prerogative than otherwise and therefore I cannot think it was not so unpolitickly done by the King to render himself gracious and acceptable to his People upon his return to grant their request and pass that Act for taking away Wards and Liveries and to accept of a Revenue by excise of treble the value in stead of it But to come to the Original of Knights Service it self I do not think it was derived from the Normans since we are certain there were Thane Lands in England which were held of the King and that by Knights Service before King William's coming over and there were also middle Thanes who held of those Lords above them by the like Service insomuch that in the Laws of K. Knutâ— there is one concerning the Heriots which an Earl the Kings Thane as well as inferior Thanes were to pay not only to the King but to other inferiour Lords which are almost the same as were afterwards reserved by the Laws of K. Edward the Confessor confirmed by K. William as you will find them in Ingulph only there is no Gold reserved but only Horses and Arms whereas by the Law of K. Knute each E. was to pay two hundred Manenses of Gold each Kings Thane fifty and each inferiour Thane two pounds only note that he who is called E. in K. Knutes Laws is called a Count in these the Thane a Baron and the inferior Thane a Vauasor and that which is there called a 〈◊〉 is here termed a Relief And that this Tenure by Knights Service which is now called Escuage or Servitium Scuti was of ancient time named expeditio hominum cum scutis and was in use before the coming in of the Danes is also as certain for Sir E. Coke in his fourth Inst. tells us that we may in the Charter of K. Kenulph who Anno Domini 821. granted to the Abbot of Abbindon many Mannors and Lands and reserved quod expeditionem duodecim virorum cum tantis scutis exerceant antiqâ—os pontes arces renovent and also he mentions a like Charter of K. Ethelred to a Knight called Athelâ—eâ— Anno Domini 995 so that you see not only Spiritual Persons and great Thanes or Barons but also Knights held Lands by the service of so many men before your Conqueror and your Dr. also himself allows it for in his answer to Mr. P. in all ancient Charters in the Saxon times he translates the word fidelâ—s by Tenants in Capite or Military Service M. I will not deny that Military Fees were in use before the Conquest and also that the feudal Law did obtain here in many things and therefore I am so far of the Doctors opinion who in his Gossary Tit. Feudal Laws tells us The Feudal Law obtained to most Nations of Europe and in Normandy was in its full Vigor at the time of the coming over of the Conqueror but afterwards grew more mild and qualified as also the Tenure it self a perfect description of which with all its incidents of Homage Relief Ward Marriage Escuage Ayds c. are to be found in the Grand Customer Cap. 29.33 34 35. and although there were Military Fiefs or Fees here in the Saxon times yet not in such manner as after the Conquest established here by William the Conqueror and according to the usage in Normandy when as it appears by Doomesday-book in every County he divided most if not all the Land of England amongst his Normans and Followers Now that this custom of Wardships is wholly derived from the Norman Conquest you shall find in Sir E. Cookes fourth Institutes in the same Chapter you last cited as you may here read You have heard before de regali servitio before the Conquest but that regalâ— servicium which was Knights service drew unto it relief but neither Wardship of the Body or of the Land as hath been said it is true that the Conqueror in respect of that Royal service as a badge of the Conquest took the Wardship of the Land and the Marriage of the
the Aldermen or Burgesses of Towns Represent those which we now call the Commons And supposing that then there were no Knights of Shires yet these being then the only Proprietors of any considerable Estates of Land in the Nation might very well represent all their Vâ—ssals or Vnder-Tenents as Tenents for years and at Will are at this day by the Knights of Shires tho they have no Votes at their Elâ—ction To conclude tho I grant that the King 's of England are the Fountain of that Honour which we call Peerage Yet it is only in Pursuance of that Ancient Constitution which their Ancestors brought out of Old Saxony and Normandy along with them as the firmest defence of Kingly Power against the Insolency and Encroachments of the Common or Meaner sort of People as well as Tyranny in their Princes And therefore in all Monarchies where there is no Hereditary Nobility the Prince hath no surer â—ay to maintain his Power than by Standing Armies to whose Humours and Pactions he is more Subject and is also more liable to be Murdered or Deposed by them when discontented with him than ever any limited Prince yet was or can be by his Nobility or People As I could shew you from a multitude of Examples not only from the Roman but Moorish Arabick and Turkish Histories and therefore to constitute a lasting stable limited Monarchy as ours is it must be according to the Model I have here Proposed M. I shall not contradict the latter part of your Discourse but I must freely tell you that if as you your self grant there were no Knights of Shires in the Saxon times I cannot see how those we call the vulgar or Commons of England had then any Representatives in the Great Council since those Thanes or Lords of Mannors whom you suppose to have Represented their Tenants or Vassals were never chosen by them and consequently could not properly be their Representatives But I think it will be easy enough to prove that none of your Inferior or middle Thanes but only the Chiâ—f or Superior had places in those Assemblies So that these Feudal Thanes or such as held of the King in Chief by Military Service were of the sam Kind with them that were after the Norman times Honorary or Parliamentary Barons and their Thainlands alone were the Honorary Thainlands and such as were afterwards Parliamentary Baronies Nor can I find any Footsteps in our Ancient English Histories of Cities and Buroughs sending any Representatives to those Great Councils So that admit I should own at present that the Bishops and some Great Abbots had from the first Setling of Christianity in this Island an Indisputable place in the Great Councils and likewise that the Earls Aldermen or Great Nobility had also Votes in those Assemblies and that the Chief Thanes or less Nobles had also their places there by reason of the Tenure of their Estates yet certainly the House of Commons was of a much later Date and owed its being either to the Grace and Favour of our Kings of the Norman Race or else to those that had Vsurp't their Power And this I think Dr. Brady hath very well proved against Mr. Petyt and I think I could convince you also of the Truth of it by his as well as other Arguments were it not now too late to enter upon so long a Subject F. Therefore pray let us defer any further Discourse of this Question till the next time we meet wherein I hope I may shew you that if you owe that Opinion to the Doctors Arguments he hath led you into a very gross mistake And I shall only at present take my leave of you and bid you good night M. I wish you the like ADVERTISEMENT A Brief Discourse of the Law of Nature according to the Principles and Method laid down in the Reverend Dr. Cumberland's now Lord Bishop of Peterborough's Latin Treatise on that Subject As also his Confutations of Mr. Hobb's Principles put into another Method With the Right Reverend Author's Approbation FINIS Bibliotheca Politica Or A DISCOURSE By way of DIALOGUE WHETHER The Commons of England represented by Knights Citizens and Burgesses in Parliament were one of the Three Estates in Parliament before the 49th of Henry III. or 18th of Edw. I. Collected out of the most Approved Authors both Ancient and Modern Dialogue the Sixth LONDON Printed for R. Baldwin in Warwick-Lane near the Oxford-Arms where also may be had the First Second Third Fourth and Fifth Dialogues 1693. Authors made use of and how denoted 1. Mr. Pettit's Ancient Right of the Commons of England Asserted P.R.C. 2. Dr. Brady's Answer thereunto Edit in Folio B. A. P. 3. The said Doctor 's Glossary at the end of it B. G. 4. Anamadversions upon Treatise Ianii Anglorum forces novo B. A. I. 5. The Author of Ianus c. his Confutation of the said Doctor entituled Ianus Anglorum ab Antique I. A. A. 6. Dr. Brady's Preface to his History B. P. H. 7. Dr. Iohnston's Excellency of Monarchical Government I. E. M. G. THE PREFACE TO THE READER HAving in my last Discourse treated of the Legislative Power of this Kingdom as also the Ancient Constitution of our English Government by great Councils or Parliaments the former of which questions I should scarce have dwelt so long upon had I then known of a Learned Treatise now 〈◊〉 to be publisht on that Subject I am at last arrived at the hardest and most important though perhaps in the Iudgment of some the driest and most unpleasant part of my Task viz. Who were anciently the constituent Parts or Orders of Men who made up thâ—se Assemblies That the Bishops Abbots Priors Earls and Chief Thanes or Barons were Principal Members is granted by all Parties but whether there were from the very Original of these Great Councils nay till long after the coming in of the Normans any Representatives for the Commons as we now call them in distinction from the Lords Spiritual and Temporal is a doubt which as it was for ought I can find first raised by an Italian who writ the History of England in the last Age so hath it been continued by some Antiquaries of our present Age though the first that ever appeared to prove the contrary was a Treatise published by James Howel in the Cottoni Posthuma under the Name of Sir Robert Cotton about 1654. but whether it was his or no I know not only it was supposed to be so by Mr. Pryn in his Preface to the Collection of Records which he published under the Name of the same Author in 1657. and after him this Notion of the Bishops Lords and other Tenants in Capite being the Sole Representative for the whole Nation in those Councils was next printed in the Second part of Sir Henry Spelman's Glossary Tit. Parliamentum where King John's Charter is made use of at the main Argument to prove that Assertion The next who appear'd in Prâ—nt on
called Catalogus Gloriae Mundi written on this subject where in his 8 th part consid 18. he hath this amongst other Comments on the word Nobilitas Nobilitas etiam causatur ex loco quoniam civis ex urbe splendida oriundus Nobilis est for which he there gives many Authorities And this Title he looks upon as due also to Countrey Gentlemen living upon the Husbandry of their own Estates or Annual Rents And that by the word Magnates are often understood the Knights of Shires commonly called in old French Grantz des Countees I can give you sufficient Authorities Now this word Magnates is always rendred in our old French by Grantz For the proof of this I desire you in the first place to take notice that Rot. Claus. 3 E. 2. in 16. dorso you will find this Title Inhibitio ne qui Magnates viz. Comes Baro Miles 〈◊〉 abqua alia Notabilis persona transeat ad partes transmarinas Where you see the word Magnates is applied to Knights at least as well as Earls and Barons And amongst the Common Writs of Michaelmas Term Anno 34 Edw. I. in the keeping of the Remembrancer of the Treasury of the Exchequer the Knights of Shires and Barons of Cinque-Ports are called Magnates So also in the Statute 25 E. 3. de servientibus it is there Enacted per Assent de les ditz Prelatz Countes 〈◊〉 autres Grandes de la dite Communalte illonques Assemblez Also in the Statute-Book printed in French in the Statute of the Staple 27 E. 3. the Knights of the Shires are expresly called Grantz des Counties And lastly as for the word Optimates which is derived from the superlative Optimus it signifies no more than the best sort of men in any Commonwealth or City And in this sense William of Malmesbury in his History speaking of the rich Citizens of London hath this Remarkable Passage Londinenses qui pro magnitudine Civitatis optimates sunt And that not only Knights but also such Citizens as were remarkable and eminent for their Estates or Offices in Cities had the appellation of Magnates appears from an Ancient Manuscript Book kept in the Archives of the City of London where in Anno Dom. 1229. being the 13 th of Hen. 3. an Act of Common Council was made per omnes Aldermanâ—aes Magnates Civitatis per assensum univer-sorum Civium quod nullo tempore â—ermitterent aliquem vicecomitem admitti in vicecomitem per duos annos continuos sicut 〈◊〉 extiterant So likewise in the same Book Anno Dom. 1244. 29. H. 3. mention is there made of a Dissention that then arose about the Choice of a Sheriff and the Book says that quidam de vulgo Elegerunt Nichol. Bat. per assensum Majoris Magnates elegerunt Adam de â—ently I could give you more of a like nature but I will not tire you but no doubt but the Eminent Citizens of York and other Cities were called Magnates in those times From all which we may safely conclude That not only Knights of Shirâ— were stiled Magnates but also the Representatives for the Cities were often stiled Proceres Magnates and Nobiles in our Ancient Rolls and Acts of Parliament and other publick Writings I beg your Pardon for being thus long but I could not make an end sooner and prove the true Sense of these Words in question from Ancient Historians Acts of Parliaments and Records by which I hope you will be satisfied how unsafe it is to depend upon the general and various expressions of our English Historians especially as understood by those of yoâ—â— opinion since if we should depend upon them alone the Commons would not oftentimes be found to have been present in Parliament even when the Records themselves expresly prove they were there M. I must confess you have made me think more on this Subject than perhaps otherwise I should have done yet I must observe That most of the Quotations you have made use of concerning the meaning of the words Proceres Magnates and Nobiles c. are from Authors who writ after the time that I 〈◊〉 the Commons as now Represented to have been constantly Summoned to Parliament so that they might very well through haste or inadvertency confound them with the Earls and Lords and so stile them by the same Titles For I will prove to you before the conclusion of this Discourse by undeniable Records That by the words Magnates and Proceres are understood the Bishops Earls and Barons as distinguished from the Commons But I think I can sufficiently prove from Mat. Paris and the Ancient Laws of our first Norman Kings as also from the Magna Charta of King Iohn That by the words Bartneâ— iâ— meant the Tenents in capite who are there only mentioned to haâ— constantly appeared in Parliament till the 18 th E. 1. the Greater and Less â—â—â—ons or Tenents in capite together with those of higher degree viz. the Earls Bishops and Abbots being the only persons who represented the whoâ—e Body of the Nation in our great Councils or Parliaments And I take this to be 〈◊〉 evident and clear that I cannot quit this Opinion without you can shew 〈◊〉 better Reasons to the contrary than hitherto you have done F. I see nothing will satisfie those who have once received a Prejudice 〈◊〉 otherwise I think it may be proved sufficiently from that Clause in Magna Chartâ— I have mentioned That other persons were there before the 49 th of Henry 〈◊〉 besides your great Barons and Tenents in capite And as for the use of 〈◊〉 words you mention in Historians after the Reign of Hen. III. nothing can be a plainer proof for me For if those Historians did comprehend the Common under those general Words or Phrases we have been now disputing about I deâ—sire to know why they might not have been likewise comprehended under thâ— same terms by Mat. Paris and those other Historians who writ other Historieâ— from the Norman Conquest to his time and why thy might not have then conâ—founded the Commons with the Lords as well as they did afterwards But since I see you insist so much upon your Barones and Tenentes in capite whom you wiâ— have alone to constitute the Baronagium or the Communitas or Universitas Barâ—â—gii Angliae pray give me leave to ask you a plain Question Were your lessâ— Tenents in capite or Barones minores Lords or Peers of Parliament or were they Commoners only M. To give you Mr. Selden's Opinion in his Titles of Honour cap. 5. He supposes that from the time of the Conquest to about the middle of King Iohn every Tenant by reason of his Tenure of Lands he held in capite was indifferently an Honorary or Parliamentary Baron but that about the end of King Iohn's time some only that were most eminent of those Tenants sometimes stiled Barones Majores Regni were summoned by several Writs directed to them as
Lords or Peers of Parliament and that the rest being the lesser or lower Tenants in capite sometimes stiled Barones minores were for some time before this summoned by general Writs directed to the Sheriffs or Bayliffs as appears by King Iohn's Magna Charta Now whether these men were ever really Peers or not I have reason to doubt since I do not find but it was they alone who for some years after the Conquest served upon Juries in County Courts and dispatched all the publick business of the Country which was then as at this day a drudgery beneath the Peers to perform and therefore I shall not insist upon it But thus much I think is certain That they were a sort of persons much above any other Lay-men of the Kingdom since they held their Estates immediately from the King and were so considerable as that by the Constitutions of Clarendon they were not to be Excommunicated without the King's leave and so were then in some sort of the same Order ratione Tenurae with the great Barons or Peers being commonly stiled Barones and made up but one Estate or Order of Lay-men in Parliament And from thence I suppose proceeds that common Error of Sir Ed. Coke that the Lords and Commons did anciently sit together and made but one House Now if you have any thing to object against this Notion pray let me hear it F. I think you and I are come pretty near an issue in this question for you confess that these lesser Tenents in capite and whom you comprise under the word Barones were not truly and properly Barons and so far you are in the Right but yet you will have them to be somewhat more than mere Commoners as if there had been some Degree or Order of men in England in those times who were neither Lords nor Commons but an Amphibious Race between both But to prove that they were indeed no more than Commoners and not Lords nor Peeâ—s at all nor equal with them we need go no farther than their way of Trial in cases of Treason or Felony which was by mere Commoners who were not Tenants in capite as well as those that were so that a person who was no Tenant in Capite and might serve upon a Jury of Life and Death upon them and as well as the Dr. in his Answer to Mr. P. as you asserted that they only served in the Country upon all Iuries and that before the time of King Iohn So after all this noise of none but Lords and Tenants in capite appearing for the whole Commons of England we find by your own showing that three parts in four of the Lay Members of that Council were as meer Commoners as our Knights of Shires and Barons of the Five Ports at this day nor can I see any reason why these latter might not be as well comprehended under the Word Barones as the former who were meer Commoners likewise if we consider that it was neither Nobility nor Birth nor the King's Writs of Summons but only the meer Tenure of their Lands that gave them a particular right to a Place in that Assembly in those Ages or if a meer Citizen could get Money enough to purchase such an Estate in capite he was as good a Member of Parllament as the best of them all So that the Question then amounts to no more than this Whether the Commons of England were then represented by Tenants in Capite or by Knights of Shires and others as they are now But since you will have none Commoners but Tenants in capite to have had places therein pray tell me whether you allow that Priviledge to all who held in capite or not M. Yes I allow it to all who held in capite by Knights Service and who also enjoyed a whole Knight's Fee or so much as was sufficient to render them able to sustain the Dignity of that Place not but that the King had also a prerogative of summoning or omitting whom of them he pleased to his Great Council or Parliament till the Less Tenants in capite thinking it a wrong to them it was provided by King Iohn's Charter that all of them should be summoned by one General Writ of Summons directed to the Sheriff But I exclude from this Concil all Tenants by Petit Serjeanty who tho 't is true held of the King in capite yet was it not by Knights Service So likewise I exclude all Cities and Towns tho the Citizens or Burgesses of divers of them held their Lands and Tenements by that Tenure since being neither noble by Blood nor having Estates sufficient to maintain the Port of a Gentleman or Knight they had no Right to appear there in Person among the other Tenants who were owners of one or more Knights Fees Yet do I not affirm that the Commons were not after some sort represented in Parliament by their Superior Lords tho not as Commoners since the Bishops Abbots and other Barons did then make Laws and give Taxes not only for themselves but their Feudatory Tenents also tho of never so great Estates and Tenure in capite was then looked upon as the only true Freehold of the Kingdom and the Tenents by it as the only true Freeholders F. I shall shew you by and by the falsity of this Notion but in the mean time pray tell me when a Great Council or Parliament was called who represented those Persons who you say did not appear there and made General Laws and granted General Taxes for themselves and the whole Kingdom when there was occasion For I see you shut out the greater part even of these your true Freeholders from this Assembly M. As for the Tenents in Petit Serjeanty I at present conceive tho I am not sure of it that many of them might hold Lands and perhaps divers Knights Fees by Grand Serjeanty or Knights Service also since those Estates which were given by the Conqueror to his Servants to be held of him by such and such Petit Services might in process of time fall by Purchase or Descent into the hands of such Great Tenents in capite as had sufficient Estates to maintain that Dignity and as for the rest they might for ought as I know before the Statute de Tallagio non concedendo have been taxed by the Kings Writs according to the proportion of the Knights Fees or parts of Knights Fees which they then held and according to the Rate of the Sums imposed in Parliament either by way of Aids upon every Knights Fee or else by way of Subsidy by so much a yard or Plow Land throughout all England which has been the only way of taxing ever since that of Knights Fees hath been disused F. Then I find after all you have said that scarce half your Tenents in capite had any Votes in Prrliament either by themselves or their Representatives and so having Laws made for them and being taxed at the King's Will were as
Soccage must needs have been so numerous that what Room nay what Field or Place was able to contain so great a Multitude Or how could any business have been transacted therein without the greatest confusion imaginable F. So then you your self must also grant that when all your Greater and Less Barons or Tenents in capite appeared in Person Parliaments were much more numerous than they are now since according to the Dr.'s Catalogue out of Dooms-Day-Book in his Appendix to the English History Vol. 1. of all the Tenants in capite or Serjeanty that held all the Lands in every County of King William they did besides the Bishops Abbots Earls and Barons altogether amount to about 700. and these in the 49th of Hen. III. by forfeiture and new Conveyances from the Crown or by those other ways you have now mentioned might be multiplied into twice as many more and those also of sufficient Estates to maintain the Port of a Member of Parliament or Knight Since 15 Pounds a year was in the Reign of King Iohn and Henry III. reckoned as a Knight's Fee and he that had it was liable to be Knighted And if so I pray according to your own Hypothesis how could so great an Assembly be managed as of about 3000 or 4000 Persons without strange confusion and disorder but upon our Principles there will follow no more Absurdities or Inconveniencies than in yours for either these Barons of Counties Burgesses and Inhabitants of Towns and Cities were always represented by Knights and Citizens as they are now or else these Barons of Counties appearing for themselves were Lords of Mannors or Freeholders of good Estates who were not so numerous or inconsiderable as you imagine the Freehold Lands in England being in those days but in a few hands in comparison to what they are now And for this Opinion I have Sir H. Spelman of my side who in the place already quoted under Barones Câ—â—itatus expresly tells us Hoc nomine contineri videtur antiquis paginis omnis 〈◊〉 â—eodalium specier in uno quovis Comitara degentium Proceres nempè 〈◊〉 Domini nèc non liberè quique Tenentes hoc est fundorum proprietarii Anglicè Freeholders ut Superiù◠dictum est Normidum autem est hoc liberè Tenentes nec tam â—iles 〈◊〉 fuisse nèc tam Vulgares ut hodiè deprehonduntur nam villas Dominia in 〈◊〉 Hareditates non dum distrahebant Nobiles sed ut vidimus in Hibernia penes se retinentes agros per precarios excolebant adscriptitios So that you see Sir H. Spelman then believed that the Mannors and Great Freehold in England were not then parcell'd out into so many small Shares as you imagine and that such Inferior Barons whether they held in caâ—â—â—e or not were also called Proceres see the Laws of Henry I. Chap. 25. the Title whereof is de Privilegits Procerum Angliae The law runs thus Si exurgat placitum inter homines allcusus Baronum foenam habentium tractâ—tur placitum in Curia Domini sui Now that this Socha was no more than Soc. in old Saxon see Spel. Gloss. Tit. Soc. i. e. secta de hominibus in curia Domini secundum consuetudinem so likewise in Titulo Socha vel dicitur Soc. a Saxon socâ— i. e libertas Franchesia vide manerium qd dicitur etiam Soca dictum est From all which we may observe that these Lords of Mannors here called Proceres Barones had Court Barons which took their Name from their Lords tho Feudatory Tenents or Vavaâ—ours But granting that about the end of King Iohn or beginning of the Reign of Hen. III. Supposing that these Lords of Mannors and Great Freeholders whether Tenents In capite or others might amount in all to 5 on 6000 persons I do not see why such an Assembly might not be as orderly and well managed as one of 1000. or 4000. supposing your Greater Barons and Less Tenants in capite to have than made about that number especially if we consider that most business or Acts of any consequence and for which Parliaments were called might be prepared and drawn up by the King and his Council before they met So that take it which way you will fewer Inconveniences and Improbabilities attend my Hypothesis than yours M. That the Earls and Greater Barons both Spiritual and Temporal together with the Tenants in capite then made the Body of the Baronage of England I have very good Authority on my side but that any Feudatory Barons or Tenants of a Lesser Degree ever had any Places or Votes in those Assemblies I think you can give me no sufficient Authority for it 'T is true Mr. P. in his Treatise of the Rights of the Commons asserted gives us two Modern Quotations the one out of Mr. Câ—â—den's Britannia the other out of Mr. Selden to prove it As for the former it is in the Introduction to the Britannia first published in Quarto The Words are these Verum Baro ex illis non imbus videatur qua tempus paulatim moliara molliora reddidit nam longo post tempore non Milites sed qui liberi erant Domini Thani Saxombus dicebantur Barones vocari caperunt nec dum magni honoris erat paulo autem postea meaning after the Normans entrance eò honoris pervenit ut nomine Baronagii Angliae omnes qâ—â—dammodo Regni ordines continerentur But he doth not tell us that this Learned Author in his last Edition of this Work in Folio being sensible of his mistake hath added the Word Superiores before Ordines whereby it is plain he now restrains it only to the Earls and Barons as they are now understood Mr. P's other Quotation is out of Mr. Selden's Notes upon Raâ—â—â—rus where commenting on the Word Barones he saith Vocabulum nempe alio notione usurpari quam vulgo neque eos duntaxat ut hodie significare quibus peculiaris ordinum Comitiis locus est but then conceals this that follows which makes directly against him Sed universos qui Regiae munificentiae ad formulam Iuris nostre Clientelaris quod nullius Villae Regiae glebam sed ipsum tantum modo Regem spectat Tenure en Chief Phrasi forensi dicimus sive Tenura in capite lati fundiâ— pessidebant whereby you may see that he expresly restrains this Word Barones to Tenents in capite only tho your Author takes no notice of it Nor indeed in his Title of Honour doth Mr. Selden give us any other Description of a Baron I mean such who had a Vote in Parliament but such in the Sense that is taken in Henry I. his Charter as it is recited in Matt. Paris Siquis Baronum meorum Comitum vel aliorm qui de me tenent mortuus fuerit i. e. One who was either one of the Earls or Greater Barons or otherwise held in capite F. Mr. P. is not at all to be blamed as you make him
in these two Quotations since in that out of Camden you cannot deny but he hath truly quoted that Author as it was in his First Edition and if he afterwares altered it it may very well be questioned whether he did not add the Word Superiores rather out of fear of displeasing the Greater Nobility whom that Quotation had before Shockt than out of any sense of his being in the Wrong as it appears by the Words immediately following when he tells us out of a nameless Manuscript Author That Henry III. out of so great a multitude of Barons which was seditious and turbulent called the best and chiefest of them only by Writ to Parliament By which it plainly appears that he supposed all those Less Barons or Tenants in capite tho no Lords as now understood who were thus excluded to have been only Nominal and not Real Barons and if so Commoners or else he must extend the Peerage of England to at least Three or Four Thousand Persons For so many Tenents in capite might very well be at that time The same I may likewise say as to the Quotation out of Mr. Selden for by the Words quibus peculiaris in ordinum Comitiis locus est 't is plain he supposed that all the rest of those Tenents in capite were but meer Commoners yet he no where affirms that none but these appeared in Parliament for all the Commons of England for he very well knew the unreasonableness of that Supposition Since besides these Barons or Tenants in capite Bracton in his first Book tells us of divers other Orders of Men of Great Dignity and Power in this Kingdom about the time when you suppose this marvellous Alteration to have happened His Words are these Et sub iis viz. Regibus Duces Comites Barones Magnates sive vavassores Milites etiam Liberi Villani deversa Potestates sub Rege constitutae and a little farther sunt alti Potentes sub Rege qui dicuntur Barones hoc est Robur belli sunt alii qui dicuntur Vavassores viri 〈◊〉 Dignitatis From which Words I desire you to observe that he here makes the Magnates and the Vavassores or Feudatory Tenants to be all one and also ranks them before the Milites Now whether these Vavassores and Milites who did not all hold of the King in capite were men of so great Dignity and Power as these whom he here reckons immediately after the Earls and Great Barons should have no Votes in Parliament neither by themselves nor their Representatives is altogether improbable And agreeable to this of Bracton Du Fresne in his Lexicon Tit. Vavasor tells us that Vavassorum duo erant ordines sub majorum apellatione implectuntur qui Barones apellantur sub â—norum vero quos vulgò Vavassores dicunt ut leges Henrici I. Reg. Ang. Thaines minores respectu Thainorum majorum qui Baronibus aequiparantur But that these Lesser Thanes or Vavassors were also stiled Barones Sir H. Spelman tells us expresly in his Glossary Tit. Baro etiam Barones Comitum Procer umque hoc est Barones subalterni Baronum Barones sâ—pissime leguntur and of this he gives us many Examples and particularly of the Chief Tenants of the Abby of Ramsey above mentioned So likewise the same Author a Leaf or two farther speaking of the Barones of London mentioned in the Charter of King Henry I. understands them pro civibus praestantioribus qui socnas suas consuetudines i. e. Curias habuerunt Privilegia eorum instar qui in Comitatu Barones Comitatus dicuntur c. Nor did this Title of Barones extend to London alone but he also immediately tells us in the same place Sic Barones de Ebaraco de Cestria de Warwico de Soe Feversham plurium Villaram Regiis Privilegiis insignium cum in Anglia tum in Gallia c. and that Barons of Counties were no more than Lords of Mannors I have just now proved for Socna means no more than a Court Baron or Court of a Mannor So that here arises a plain distinction between the Barones Regis the King 's Great Barons or Tenants in capite and these Lesser Barons we now are here speaking of called Medmesse Thegnes and Burgh Thegnes by the Saxons till they 〈◊〉 on the Word Parliamentum to signifie the Common Council of the Kingdom who tho no Peers yet were Barones Regni Barons or Noblemen of the Kingdom according to the general acceptation of the Word Nobiles in that Age and is such made up the Body of the Baronage called by Matt. Paris and other Authors Baronagium or Communitas Baronagit totius Angliae M. I see you do all you can from the equivocal use of the Word Barones to croud in new and unknown men into the Great Council of the Kingdom viz. your Barons of Counties Cities and Towns whom since you dare not affirm there were then any Knights of Shires you suppose to have served instead of them and these you would have to be not Barones Regis but Regni or Terrae forsooth i. e. of the Land or Kingdom whereas we never had any True Barones held by mean Tenures here in England this if you deny you must deny all History and all our Ancient Laws and Law-Books too and if you grant it you must confess that every Baron was a Tenant in capite and by your own Concession he must then be the King's Baron or Baro Regis I grant indeed there were Nominal or Titular Barons such as you mention many in those Times such as were Tenants to Great Lords Bishops or Abbots of whom we find frequent mention in our Ancient Histories Records and Charters But these are not the men who had ever any Place in our Great Councils and I desire you would prove to me that ever they appeared there before the Times I assign and I would also have you inform your self of the Gentlemen of whom you borrow this Notion if they can prove that there were any such kind of Tenure as Tenura de Terra or de Regno or whether there was ever any man that held an Estate de Regno Whether forfeitures or Escheats were to the Kingdom And whether Fealty was sworn or Homage done to the Kingdom Or whether an Earl was invested or Girt with the Sword of the County by the Kingdom Or whether the ancient Ceremonies used at the Creations of Earls and Barons were done by the Kingdom Thus all the Barons of England held of the King and thus all these things were performed and done to our Ancient Kings and by them which are most manifest Notes of the King 's immediate Jurisdiction over the Barons and that they were his Tenants in capite and by consequence his Barons only which you cannot deny and of which Tenants in capite the Earls and Greater Barons always created by Investiture of Robes or other Ceremonies were summoned by particular Write
that if the Sense of these Words have been sufficiently explained I think no reasonable man can have any cause to doubt whether these Abstract Words Nobilitas Universitas and Communitas should be taken for all Sorts and Degrees of men when thus represented in the Great Council or whether they shall be confined to the Greater or Lesser Nobility only viz. the Great Lords Bishops and Tenants in caâ—ite as you would make me believe which requires stronger Proofs than what you have yet brought Besides which Sense of this Word Communitas or le Commune it is also more commonly used at this day and often then too in another more restrained and yet legal sense and that is when it is used for the Commonalty or Commons of England distinct from the Peers and this may very easily be distinguished by observing that when it is taken in this Sense it is always set after the particular enumeration of the other Orders of the Lords or Peers viz. the Arch-Bishops Bishops Abbots Priors Earls and Barons or when it is put contradistinct to the Word Magnates I shall give you some Authorities and Examples from Historians and Records of both these and that in the Times preceding those that you allow the Commons to have been summoned in Parliament Of this sort is that which Matt. VVestm mentions as a Parliament held 37th Hen. III. and which is thus recited in the Patent Roll of this year where after the Excommunication denounced against all Infringers of Magna Charta there is this solemn Clause aâ—ded That if to the Writings concerning the said Sentence any other thing or in any otherwise should be added thereunto besides the Forms of the said Sentence then to be denounced and approved of that then Dominus Rex praedicti Magnates Communitas Populi Pretestantur publice before all the Bishops that they would never consent thereunto and conclude thus In cujus Rei Testimonium in posterum Veritatis testimonium as well the King as the Earl of Norff. Heref. Essex and VVarwick as Peter de Sabaâ—dia ad Inslantiam aliorum Magnatum Populi Praescripti sigilla sua apposuerunt where you may see that it was usual before the 49th Hen. III. for those that were Peers to sign for the Communitas Populi or Commons M I pray give me leave to answer your Authorities as you bring them lest I not onely forget some of them but also tire both you and my self with too long a Discourse I hope I am very well able to prove by the learned Dr.'s assistance that the Communitas Populi here mentioned doâ—h signifie not the Commonalty or Commons but the Community of the Laity there present consisting of the Greater Barons or else the Less or Tenants in capite And for proof of this pray take notice that Matt. Paris called this Council Tota Angliae Nobilitas And in this Parliament the King demanding a great Sum of Money of them after much contest and upon promise to reform all Abuses according to the Tenour of the Great Charters thereupon the same Author tells us The Church granted the Tenth of the Revenue for three years and the Knights or Nobility granted for that year Scutage to wit Three Marks of every Scuâ—uâ— or Knights 〈◊〉 And then the Arch-Bishops and Bishops in their Pontificalibus with Light-Candles in their Hands in the presence and with the assent of the King the Earl of Cornwal his Brother and several Earls there named aliorum Optimatum Regni Angliae and other chief men of the Kingdom excommunicated and cursed all those that from thence forward should deprive the Church of her Right and all those that should change alter or diminish the Liberties of the Church and Anciâ—â—t Customs of the Kingdom especially those granted in the Great Charter of the Common Liberties of England and Charter of the Forest granted by the King Arâ—hiâ—piscopis Episcopis cateris Angliae Praelatis Comitibus Baronibus Militibus â—â—berè Tenentibus c. i. e. To the Arch-Bishops Bishops and other Prelates of â—â—gland and to the Earls Barons Knights and Free-Tenants or Tenants in Military 〈◊〉 Knights Service For they only were such aâ— paid Scutage which was at this â—ime a kind of composition with the King for the confirming Magna Charta and was never charged but upon Knights Fees and these were such that held perhaps one narrow or scanty Knights Fee only or some part of a Knight's Fee as an half 3d 4th 6th 8th part c. who all paid a proportionable share of Scuâ—age to the Great Lords or Tenants in capite for the Land they held of them in Military Service which was paid first to the Great Lords and by them paid to the King And from thence I collect that besides the Barones Majores that came to this Great Council or Parliament there were also the Tenants in Capite according to the Directions and Law for Summons in King Iohn's Charter who were comprehended under the Words tota Nobilitas Milites and that other Tenants but held of the Tenants in capite by Knights Service were bound by their Acts 〈◊〉 they all knew how many Knights Fees they held of the King in capite and if â—â—ey had given any away to others they held of them as they did of the Crown â—â—d answered a proportionable rate towards this Tax for the Fees Quantities 〈◊〉 Parts of Fees they held of them about which there could be no mistake 〈◊〉 the Scutage was ascertain'd So that in so Great an Assembly where all the Nobility of England were called together by the King 's Writ and upon so great 〈◊〉 occasion and solemnity as confirming the Great Charter of Liberties after such an extraordinary a manner it cannot be doubted but besides the Barons all the 〈◊〉 in capite both Great and Small which were then very numerous were â—resent or at least most of them from whence it is not difficult to tell you to the Communitas were after the Prelates Barons and Magnaâ—â—â— they were no other than the Small Tenants in capite who were all summoned by one General Writ nor chosen and sent by the people but summoned as the Great Barons in general by King Iohn ' Magna Charta as I shall shew you hereafter F. I hope I shall be well enough able to prove that what you have now alledged is pure imagination or in the Dr. Phrase an airy Ambuscade and quite contrary to the Sense of Matt. Paris as also of the Lawyers and Historians of those Times For in the first place nothing is plainer than that this Author by the Words Communitas Populi must understand an Order of Men distinct from the Magnates or else if the Word Magnates might have comprehended them all it would have been to no purpose to have mentioned any more But to answer those Authorities you bring from Mat. Paris As for the Word Nobilitas since you still insist upon it I
Praesentibus Clero Populo cum Magnatibus Regionis which pray let us put into English and see if it will not prove what I say viz. the Clergy and People being present with the Great Men of the Kingdom Now if the Word Magnates as you affirm did then comprehend all the Barons and Tenants in capite to what purpose is the Word People put here as a distinct Member of this Parliament But to shew you father that this Word Populus is not always to be understood for the whole Body of the Laicks but Lords and Knights of Shires 〈◊〉 shall shew you out of Walsingham Anno 1297. 24th Edw. I. where he mentions a Parliament held at St. Edmundsbury In quo a Civitatibus Burgis concessa est Regâ— Octava a Populo vero reliquo duodecima pars Bonorum Where by Populus 〈◊〉 not only meant the Peers but Knights of Shires or Grands des 〈◊〉 also M. I am not prepared at present to answer all the Queries and Difficulties that you can make or raise against the Dr.'s Arguments yet I think I am able to give you a very satisfactory answer why all Tenants in Soccage should be bounâ— by the Acts of those of whom they held their Estates For since as I have a ready proved all the Land in England except what belong to Religious Houses was granted out by King William the Conqueror to be held in capite by Knights Service and was again granted out by these head-Head-Tenants to their Feudatory oâ— Mesne Tenants by the like Services there being very few Lands granted in Free Soccage at the first And tho it is true that in process of time maâ— of those Estates and Lands became Free Tenements or were holde in Soccage that is were Freeholds yet the Lords still retaiâ— the Homage which in the Times we speak of was no idle insignificant Word and by that a Dominion over the Estate whereby upon Disobedience Treachery or Injury done to the Lords the Lands were forfeited to them and theâ— neither the Lands nor the Tenants to them which were termed Freeholderâ— were subject to any base Services or servile Works yet the Lords had still great power over these Tenants by reason of their doing Homage to them 〈◊〉 â—o nominè their Lands were many ways liable to forfeiture and therefore it waâ— but reason that the Chief Lords being Tenants in capite should conclude that Tenants in Soccage also and both make Laws and give Taxes for them without their being at all privy to it But admitting I grant that before 49th 〈◊〉 there were in some sense Commons in Parliament tho not as Knights Citizen and Burgesses chosen by the Common People as their Representatives Yet 〈◊〉 it not destroy mine or the Dr.'s Assertion who in the Introduction before the Answer to Mr. P. only affirms That before the 49th aforesaid the Body of the Commons of England or Ordinary Freemen as now understood or as we now call them collectively taken c. had any share or Votes in making Laws unless as they were 〈◊〉 presented by the Tenants in capite F. Be it so But I am sure in many places of the Dr's Booâ— he absolutely denies that there were any Commons in Parliament till the Time he Assigns But as for what you alledge in answer to my Queries how Tenants in Soccage could have Laws made for them and Taxes laid upon them 〈◊〉 â—heir Lords or Tenants in capite your answer is wholly grounded upon mistakes For in the first place King VVilliam did not grant all the Lands in England to be held of him by Knight's Service since as I shall prove hereafter there were many subordinate Tenants to Bishops Abbots and other Great Lords who never forfeited their Estates at all nor were disseiz'd of them by your Conqueror â—ad who had also great numbers of considerable Freeholders under them as in 〈◊〉 at the greatest part of the Land was Gavelkind which was Soccage Teâ—re In the next place neither were all the Lands he bestowed upon his Followers granted to be held by Knight's Service since you your seâ—f own that a great deal â—land was given by him to his Inferior Servants to be held by Petit Serjeanty and besides this a great deal of other Lands was regranted by that King himself 〈◊〉 some of those old Proprietors who had been dispossessed to be held in Soccage is appears from Fleta who speaking of these sort of men says expresly In 〈◊〉 maneriis seilicet Regis erant liberi Hemines Labâ—ri Tenentes quorum quidaâ—i 〈◊〉 per Potentiores a Tenementis fuerant ejecti eadem post modum in Villenagium tenenâ—â— resempserunt quia hujusmodi Tenentes cultores Regis esse dâ—gnoscuntur provisa 〈◊〉 quiet ne sectas facerent ad Comitatum Vel hundredum c quorâ—m â—â—gregationem tunc Soccam appellarent hinc est quod Sokemanni bodie dicunâ—â— c. Where you may see that these Socmen or Soccagers were then created by a â—ew Tenure from this King Nor did all the Tenants in capite grant their Lands â—o others to be held by Knights Service since they as well as the King did at first 〈◊〉 also in process of time grant Lands to the Old English Proprietors to be held of â—â—em in Soccage nor was Homage the proper or only Badge of Soccage Tenure but â—ealty unless the Land had been held by Knights Service at first as you may see in Littleton's 2d Book Sect. 118. Nor did this Soccage Tenure give the Lord any more right over his Tenants Estate to tax him de alto bâ—sso at his Will by â—eason of the subjection he was in to the Lord in respect of Forfeiture since â—hen the King should have had for the same reason the same Rights over all his 〈◊〉 in capite to tax them likewise at his pleasure and this Right of Forfeiâ—â—â— in case of Felony or for want of Heirs continued to the Lords as well of Soccage Tenants as others long after the time you assign for the coming of the Commons to Parliament even to our own Times and yet for all that those Lords could not give taxes for such Tenants in Soccage at their pleasure But that we may proceed pray consider also the form of the Peace agreed upon between the King the Prince his Son and the whole Body of the Kingdom assembled in Parliament to compose all Differences between the King and the â—arons The Title of which in the Record is thus Haec est forma 〈◊〉 a Domino Rege Domino Edwardo filio suo Praelatis Proceriâ—â—â—â—â—â—â—ibus cum Communitate totâ Regni Angliae Communitèr Conâ—â—â—ditèr approbata Which Articles were signed by the Bishop of Lincoln the Bishop of Ely Earl of Norf. Earl of Oxon Humphry Bohun William de Monte Canisio Majore London in Parliamento London Mense Iunii Anno Domini 1264. Haec autem â—rimatio facta est London de Consensu
confer any new Right or Priviledge upon Freeholders of 40 s. per Annum to give their Voices at such Election as you suppose but only takes away the Right which the smaller Freeholders of under 40 s per Annum whether Tenants in capite or not had before and restrains it only to such as shall have Lands or Tenements to the vaâ—â— of 40 s. by year above all charges And it is yet a much greater mistake to suppose as your Dr. doth that this Statute of 8 th Hen. VI. was at all altered by that of the 10 th of this King which is no more than an Explanation of it viz. that by 40 s. per Annum was meant 40 s. Freehold and that of Lands lying within the County where the Election should be made So that nothing can prove more expresly that all Freeholders as well Tenants in capite as by any other Tenure were all alike capable of Elections and being elected by the Ancient Law and Custom of England long before those Statutes and consequently were all alike Freeholders in the Eye of the Law But if you have nothing at present to object against what I have now said pray pursue the Method you have undertaken and let me see those convincing Proofs you so much rely upon and which you hope may also serve to convert me M. Before I undertake this Task pray permit me to give you my Opinion in answer to the Difficulty you have now proposed which I confess seems to carry some weight with it but those Prejudices will soon vanish when we consider that the first time this Alteration was practised it was done in the King's Name tho by the absolute power of Simon Mountfort in the 49th Hen III. and after a discontinuance of above twenty years was again renewed by Edw. I. at the desire of the Earls and Barons as I hope I shall shew you before we have finished our Conversation And therefore it being first done by the King 's absolute Power and after with the general consent of the Lords there needed no Statute to introduce it any more than there was in the Reign of VVilliam the Conqueror to give the Bishops and Abbots that held by Knight's Service places in Parliament among the Temporal Lords and to bring their Lands which were held before in Franc Almoigne under the Yoak of Military Service But to proceed in the Design I have undertaken it is necessary that I shew you first of all who were those Freemen or Freeholders properly so called upon whom the whole burden of the subordinate Government of the Kingdom chiefly relied and who then constituted the Legal University or Community thereof immediately after the Norman Conquest and during many King's Reigns after that time I suppose you are not ignorant that King VVilliam the Conqueror having outed all the English Nobility and Gentry of their Estates gave them away to his French and Norman Followers to be held of him and his Successors in capite either by Knights Service or Petit Serjeanty reserving to himself the Ancient Demesnes of the Crown and adding more thereunto for the maintenance of the Royal Dignity and for this I need refer you to no better Author than Doomsday's Book it self And then after he had thus distributed the Lands of England as aforesaid he composed a Body of Laws still extant and which are in great part Addition to the Ancient Laws of King Edward and his Predecessors I shall give you three or four of these new Laws and then I shall leave you to judge who were the true Freemen or Freeholders of the whole Kingdom The first is the 52 d Law of this King Tit. De Fide obsequio ergo Regem Statuâ—mus etiam ut omnes Liberi Homines faedere Sacramento affirmarent quod intra extra Regnum Angliae quod olim vocabâ—o Regnum Britannie VVilâ—ielmo Regi Domino suo Fideles esse volunt Tâ—ras Honores illius omni fidelitate servare cum eo contra inimicos alienigenar difendere Now who these Freemen were that were thus to maintain the King in his Lands and Honours we shall see in the 55th Law following Tit. De Clienteleri seu Feudorum Iure Ingenuòrum immunitate Volumus etiam ac firmiter praecipimus concedimus ut omnes Liberi Homines totius Monarchiae Regni nostri praedicti habeant â—â— meant terras suas Póssessiones sâ—â—s benè in pace libere ab omni Exactione injusto ab omni Tallagio it a quod nihil ab eis exigatur vel capiatur nisi servitium suum liberum quod de jùre nobis facere debent facere tenentur prout Statutum est in allis a Nobis Datum Concessum jure Hereditario imperpetuum per Commune Consilium votius Regni nostri Whereby you may see that all the Freemen here mentioned who were to hold their Lands and Possessions in Peace and free from all unjâ— Exaction and Taillage were only such who were to perform Free Service i. e. Knight's Service which was before appointed and granted them in Hereditary Right by the King in the Common Council of the Kingdom So that none were properly Freemen or exempt from Tax or Talliage but such as held by Military Tenure tho not Knighted And pray also by the way take notice that by this Commune Consilium Regni you are not to understand a Council of English men or of English and French together but one wholly made up of Frenchmen or Normans who as well Bishops and Abbots as Temporal Earls and Barons held almost all the Lands in the Kingdom by Knights Service Which is also farther made out by the 58 th Law Tit. De Clientum seu Vassallorem prastationibus Statuimus etiam firmiter praecipimus ut omnes Comites Bermes Milites Servientes Universi Liberi Homines totius Regni nostri prâ—â—â—â—tihabeant teneant se semper benè in Armis in equis ut decet oportet qud sint semper prompti benè parati ad servitium suum integrum nobis explendum pâ—â—â—gendum cum semper opus adfuerit secundum quod Nobis debent de Feodis Teneâ—â—â—tis suis de Iure facere sicut illis statuimus per Commune Consilium totius Regni nostri praedicti illis dedimus Concessimus in Feodo Iure Haereditario hoc praeceptum non sit violatum ullo modo super foris facturam nostram plenam So that here all the Freemen of his Kingdom were to perform their Military Services with Horse and Arms according to their Fees and Tenures Therefore they were Tenants in Military Service onely which in those times were the only great Freemen and that Service the only Free Service which were meant in this Law And â—ow different they were from our ordinary Freeholders at this day for whom neither of these Laws were made I dare leave it
which all the Lands in England were liable to as well after as before your Conquest Nor will the 58 th Law make more for you for tho it â—â—ly says that all Earls Barons Knights and their Servitors or Esquires and all Freemen of the Kingdom shall always be fitted with Horses and Arms as they â—â—ought to be and which they ought to do according to and by reason of their â—ees and Tenures Now it is plain that this Law cannot extend to the Less 〈◊〉 Capite only since they according to your own sense are comprehended â—â—eder the Word Milites and their Servientes which seems to mean their Feudataâ—y Tenants are as much tyed by this Law to find Horses and Arms as the Tâ—â—ants in capite themselves So that whereas the Law says expresly Uniâ—â—rsi Liberi â—â—mines totius Regni it should have been to make good your sense Universâ— Libeâ—â— Homines qui de Rege Tenant in capite And as for the other Freemen who were â—f lesser Estates than to find Horses they were to be ready with such Arms as beâ—â—ed their Condition as we see it explained by the Assize of Arms of Henry II. which I have now cited so that this Law of King VVilliam is not to be taken in 〈◊〉 sense you put upon it That all the true Freemen of the Kingdom were obliged to be ready with Horses and Arms as if none were Freemen that did not but referring the Words Horses and Arms to those who were to â—ind both and the Word Arms to those Freemen who were only obliged to keep Arms â—it for Footâ—en which sense the words will very well bear tho expressed generally and concisely according to the Mode of those times which abhor'd more Words than â—eeds And if these Laws will not prove what you bring them for much less till the last you have cited For if the Words Omneâ— Liberâ— Homines totius Monarâ—â— in the First Law who were to take an Oath of Fidelity to the King must â—â—tend to all the Freemen of England as certainly it did all Freemen being aâ—â—e obliged to be sworn in the Court Leer and County Court so must this too 〈◊〉 Title being that Omnes subditi all the Subjects should endeavour to mainâ—â—in the King's Rights with all their Power And tho I grant that Subditi here are the same with Liberi Homines in the first Law yet since by that Law all Freemen were to take the Oath of Fidelity to the King these must be also the very same Freemen who were to be sworn Brothers to defend the Kingdom according to their Power and Estates So that all that you have said to prove your Tenants by Knights Service in capite to be the only Freemen that served oâ— Juries c. being built upon a false Interpretation of these Laws of King VVilliam are but the meer Fancies and Imaginations of the Author from whom you borrowed them But taking the Words Liberi Homines in the strictest sense and as they are is the Magna Charta of King Iohn and H. III. Chap. 14. where it is ordained that Liber Homo non amercietur pro parvo delicto nisi secundum modum illius delicti salvâ—â—h contenemento suo mercatar eodem modo salva marchandiza villanus salvâ— VVâ—nagio Upon which Words Sir Edward Coke in his 2 d. Inst. observes that 〈◊〉 Homo is here meant such a one as enjoys a Franc Tenement that is any sort of Freeâ—â— hold But pray go on to prove by some plainer Authorities that the Arch-Bishopâ— Bishops and Abbots c. together with the Earls Barons and other Tenents in capita were the only Council of the Kingdom for the assessing of Taxes and making Laws in the Times immediately succeeding the Reign of King William the First M. I shall perform your Desires and will begin with the Great Council 〈◊〉 Parliament held at Clarendon of which Matt. Paris tells us 〈◊〉 Dom. 1164. 10 th of King H. II. In presentia Regis Henriâ—s 〈…〉 rendon 8 Calend. Febr. c. de mandato ipsius Regis presentibus 〈◊〉 Archiepiscopis Episcopis Abbatibus Prioribus Comitibus 〈◊〉 Proceribus Regni facta est Recognitio and which Quadrilogus and GErvas◠〈◊〉 Canterbury comprise under the General Terms of Brasules Prâ—ceres Regni the Bishops and Great Men of the Kingâ—dom What can be more clear by this Enumeration of the Constitâ—â—ent Parts of this full Parliament as Mr. Sâ—lden and other Authoâ— agree it to be than that the Commons were then none of theâ— and that the Clerus and Populus in Hoveden were only the 〈◊〉 and Lay Nobility So likewise when these Constitutions were again renewed by this King at â—â—thampton the same Author tells us tho by a Mistake it is writtâ—â— Nottingham That Rex Pater ibi celebravit Magnum Consilium de 〈◊〉 t is Regni coram Rege Filio Suo coram Archiepiscopis Episcopâ—â— Comitibus Baronibus Regni sui which Council is more partiâ—â—larly recited by Benedictus Abbas in his Manuscript History 〈◊〉 in the Cottonian Library Anno. 1176. which was the 25 th H. 〈◊〉 Circa Festum Conversionis Sancti Pauli venit Dominus Rex usque â—â—â—thampton Magnum ibi celebravit Concilium de Statutis Regni sui 〈◊〉 Episcopis Comitibus Baronibus Terrae suae coram eis per 〈◊〉 Regis Henrici Filii sui per Concilium Comitum Baronum Nilitâ—â— Hominum suorum hanc subscriptam assisam â—ecit c. And Ralph de Diceto Dean of St. Pauls A. D. 1210. a diligent Searcher into the Histories and Transactions of his own and former times doth yet more fully declare the meaning of Abbot Benedict in the Account he gives of this Great Council thus Rex juxta Consilium Filii sui Regis coram Episcopis Comitibus Baronibus Militibus aliis Hominibus suis in hoc consentientibus c. Hoc autem factum est apud Northamptonam â—ino Kal Febr. From all which Authorities we may collect that this Council at Northampton as well as that at Clarendon was a Great or Common Council of the whole Kingdom to which were summoned of the Laity only the Earls and Barons of his viz. the King's Land to which is also added for the better explaining who were understood under these Titles of Baronum Militum Hominum suorum that is such Tenants in capite as were Knights and such as were his Men or Tenants that is Military Tenants as were not Knighted and who held Lands either of the King or his Son to whom the King might assign divers of these Barons and Tenants in capite to atturn Tenants to him and to maintain his Court and Kingship And the King 's Comites and Barones terrae suae were the Earls and Barons of his Kingdom that held immediately of him or were his immediate Tenants in capite and that Homo suus homines sui doth for
welcome Sir but I did not expect to see you again so soon M. I beg your pardon if I come unseasonably but the truth is I have so great a desire to conclude what we began upon that important Subject we last discoursed of that I could not be at ease till I had done my endeavour to give you Satisfaction therein if it be possible But to come to the matter that we now meet about I must now tell you again that tho' this your gloss upon King Iohn's Charter seems plausible at first sight nay is agreeable to the Dr's own way of dividing and reading the several Articles of this Charter yet upon better consideration I can see no good reason for making a full or at least a half stop in the 16 th Article after these words omnes liberas consuetudines suas adding the rest that follows ad habendum Commune Concilium c. to the following Clause de seutagiis assidendis c. much lest for supposing as you do without any ground that there were two sorts of Common Councils one for Assessing Escuage and the other for Granting all other Aids and Taxes and then if read otherwise it will plainly appear that it was one and the same Council of the Kingdom that did then both grant Aids to the Crown and Assess Escuage ratione tenurae which I am the more inclined to believe from the fourteenth Clause here cited which says That no Scutage or Aids shall be imposed unless by the common Council of the Kingdom Now to what purpose is this so-express'd if there was to be one Council for the granting of Aids and another for the Assessing of Escuage So that if this Common Council of the Tenants in Capite might grant Aids and Assess Escuage upon the Subjects unless in the case before excepted I see no reason why they should not be the only Council for the giving their Assent to Laws also and consequently of concluding not only their own Tenants but the King's Tenants in Petty Sergeanty and Socage nay the Tenants of any other Persons whatsoever And though I have seriously considered Mr. P's Appendâ—x to the Rights of the Commons asserted and Dr. b's Answer to it as also his Animadversions upon Iani Anglorum c. Yet can I not see any colour of an Argument for making any distinction between the King 's Curia of his Great Lords and Tenants in Capite and the Great or Common Council of the Kingdom but that they were then all one and the same It would be tedious to me as well as you to run over all the particular Authorities and Examples which have been urged pro and con in this Question But I desire you or your Friend Mr. P. to shew me that there was any Bishops Earls Barons or other Members of Parliament in the times we now treat of that had any place or Vote therein but according to their Tenure and the ancient Custom of all Feudal Tenants who by the German Gothic and Lombard Feudal Laws which in substance were the same with ours were always summoned to the Court of the King their Supreme Lord. But farther to prove that this Council for Assessing Escuage was no other then the great Council or Parliament of those Tenents in Capite appears from Liâ—tleton's â—enures where in his second Book Sect. 97. he tells us That after an Expedition Royal into Scotland Escuage shall be Assessed in Parliament upon all those who failed to do their Service in that Expedition so that if the Parliament did then Assess Escuage I desire to know why they might not do it in the Reign of King Iohn iâ— this great Council of the Arch bishops Bishops great Lords and Tenants in Capite were not the Common Council of the whole Kingdom in those Times yet that Escuage was not always Assessed in Parliament after this Charter of King Iohn but that the King by his own Prerogative did often grant his Tenants in Capite a Power to take Scutage of their Tenants without any Assent in Parliament the Dr. hath given you above a dozen Examples in the Reigns of Hen. III. and King Iohn Thus it was for Aids and Scutage Service but if it was for Scutage imposed in Parliament as a Tax upon Land by the Common Council of the Nation then the Tenants in Capite were not only the sole Grantors but the Collectors of that Scutage too from their Mesne Tenants And the Writs to the Sheriff was different from these in Scutage Service though the same in Substance as likewise appears by those Records the Dr. hath there given us F. I doubt not but I shall make good my Assertion and shall be able to defend what Mr. P. hath in his Learned Treatise asserted concerning this matter In the first place I must stick to that way of reading and pointing of this Clause in dispute since it is not only agreeable to the Dr's Manuscript Copy but also to the old French Copy published by Father D'achery in his Spicilegium vol. 13. which is written in the French of thaâ— time but to answer your Objection against this Interpretation you your self have in great part helped me to do it by that true distinction you have now made between a Scutage as an Aid or Tax and as a Service the latter of which you assert might be granted to the King to be raised by his Tenants in Capite upon their under-Tenants whereas the former was only grantable in Parliament by the Common Council of the whole Nation Which Tax I Affirm was always granted to the King and imposed by the Common Council of the Kingdom only and not by the Tenants in Capite alone before the Expedition was undertaken Whereas Scutage Service considered as a payment of so much Money was never due or payable till the Expedition was ended and then only upon such as had failed to serve in Person or by sufficient Deputies and was then to be Assessed by the Tenants in Capite alone And though I grant it may seem to have been a Prerogative as you call it exercised by some of our Kings sometimes to grant his Tenants in Capite a License to take Scutage of their Tenants without the Assent of the Great Council of the Kingdom yet such Payments or Assessments were either according to Law and the express Grant of this Charter it self as is that Writ of King Iohn to the Sheriff of Glocestershire for the Assessing of an Aid or Scutage Service of three Marks on each Scute upon the Tenants of Saber Earl of Winchester for making his Eldest Son a Knight and which the said Earl might have claimed of his Tenants by the Common Law as also by the 20 th Article of that Charter but for Scutage Tax Littleton tells us Lib. 2. Sect. 101. That because such Tenements came at first from the Lords it is Reason they should have Escuage of their Tenants and the Lords in such case might
destrain for the Escuage so Assessed by Parliament or in some Cases they may have the King 's Writ directed to the Sheriffs of the same County c. to Lâ—vy such Escuages for them as appears by the Register But if either King Iohn or King Hen. III. granted Writs to levy Escuage upon the under-Tenants of the great Lords and Tenants in Capite without their own Consent in Parliament this ought to be no more cited as a Precedent than any other illegal Acts committed by those Kings since as our Records and Histories tell us it was such illegal Proceedings which were the cause of the Barons Wars And it is expresly against the words of this Charter of King Iohn which you have now quoted viz. nullum Seâ—â—agium vel Auxilium pâ—nam in Regno nostro nisi per Commune Consilium Regni nostri So that notwithstanding all you have yet said it doth not appear to me how Scutage when given as a Tax upon Knights â—ees alone and to be levyed not only from the Tenants in Capite themselves but their under-Tenants as also from the Tenants of them who though they held in Capite yet held not by Knights Service such as were the Tenants in Peâ—â—y Serjeanty and those who held of the King in Chief as of several Honors and not of hiâ— Crown as in Capite could ever charge such Tenants without their Consentâ— given either by themselves or their lawful Representatives much less could your Tenants in Capite Tax or Charge such as did not hold in Capite themselves viz. Those Abbots and Priors who held Lands in Right of their Monasteries in Franc Almâ—igne and who together with their Tenants made at least two third parts of all the abby-Abby-Lands in England as also Tax'd those who not holding by Knights Service at all but by Tenure in Socage or Fee Farm did not hold their Lands as Knights Fees and therefore could never be Taxed by your Tenants in Capite for so many Knights Fees or parts thereof And Braecton who lived at this very time has distinguish'd to no purpose between those Common Services which all Tenants owe their Lords and the general Taxes or Charges imposed by the Common Consent of the whole Kingdom The words are very remarkable pray read them Sunt quaedam Communâ—s praestationes quae servâ—cis non diâ—uâ—iâ—â— nec de consuâ—tudine venâ—um nisi cum necessitaâ— intervenerit vel cum Rex venorit sicut sunt Hidagia Corraagâ—â— Carvagia alia plura de necessitate ex consensu Communi torius Regni introducta quae ad Dominum feâ—di non pertinent And therefore I cannot see any Reason why the great Lords and Tenants in Capite should ever have Power to lay a general Tax upon the whole Kingdom not the tenth part of which did then hold of them by Knights Service So that nothing seems plainer to me than that there was us our ancient Historians tell us a distinct Court which was held anciently three times every year viz. at Easter Whitsuntide and Christmas and then the King was attended by all the Bishops great Lords and other Tenants in Capite and this was called Curis or Concilium Regis and if any difference of Right did arise between the King and his Tenants or between Tenant and Tenant here it was to be heard and determined and many other things were there uâ—ted and done in relation to the King's Barons or Tenants in Capite only But under Favour this was not the Commune Consillum Regni or Parliament as we now call it for the King held this Court ex More or by Custom without any Summons as Simon of Durham and Florence of Worcester and divers other Writers of the Lives of our first Norman Kings do shew us But when they take notice of the meeting of the Commune Consilium totius Regni their Expressions after and then they say that Rex ascivi as it is in Ordericus Vitalis Ex praecepro Regn convenerunt or as Eâ—â—merus Rex Sanctione sua adunavit And Mat. Westminster of later times takes notice of this Union or Meeting of this Câ—ria or Assembly of Tenants in Capit together with the Great Council or Parliament in his History of Hen. III. Where relating how the King again confirmed the Great Charter in a Parliament Anno Domini 1252. being the 37 th of his Reign He hath these words In quindenâ— Paschae Adunato Magno Parliamento c. So that it seems plain to me that this uniting of the great or whole Parliament must be understood the Conjunction of both Councils together and therefore when this Council of Tenants in Capite that thus met ex more took upon them assess Escuage and transact other matters of consequence without the consent of the major part of the Tenants in Capite who often failed to appear at these Courts or Assemblâ—es held ex more it was then and not before expresly provided by this Charter of King Iohn that Escuage should not be assessed for the future without Summons or Notice given of it to all the Tenants in Capite who had right to be there M. I see you would fain prove that there was a Council or Assembly of great Lords and Tenants in Capite distinct from the Parliament and which met ex more and that these were the Persons who were by this Charter to Assemble for the Assessing of Escuage which is a meer precarious Hypothesis nor can you or those from whom you borrow this Notion make it out from any good Authority for I have already proved that the Barones Regis Regni were the same Persons and that usually the Barons or Tenants in Capite of what Quality soever did repair to the King's Court at Christmas Easter and Whitsunday doth appear to have been the Custom of those times from the Testimonies of our ancient Historians But to prove by examples out of the Authors you your self have made use of that the Bishops great Barons and Tenants in Capite were then alone the great Council of the Kingdom pray read Eadmerus speaking thus Celebratum est Concilium in Ecclesiâ Beati Peiri in occidentali parâ—e juxta Lâ—nâ—inum sita Communi Consensâ—â— Episcoporum Abbatum Principum totius Regni buiâ— Conventui assuerunt Primates Regni utriuâ—que ondinis And at this Meeting were present the Prime Men of the whole Kingdom of both Orders in this Council the Bishops and Barons are called the Principal or Chief Men of the Kingdom yet these were all the King's Barons they all held of him in Capite and so did all the Chief Men of the Kingdom So likewise in another Meeting under this King Hen. â— when Arch-Bishop Anselm was to give his Answer to the King according â—o the Advice of the Bishops and chief Men of the Kingdom The same Author tells us of Anselm that in Pascha ad Curiam venit Communis Concilii vocem unam
held wholly by Socage Tenure whereas it appears plainly by Littleton that Tenants in Petyt Serjeanty were subject to Wardship Marriage and Relief So that whoever will but consider that near half the Lands in England were held by Bishops Abbots Priors c. and of whom not a third part held by Knights Service of the Crown and will then likewise consider what a vast number of Tenants those Abbots Priors Deans and Chapters who were not Tenants in Capite at all must have had and who either held Estates in Fee or else for Life under them in Socage as well as by Knights Service as also all the other sorts of Tenures I have already mentioned which either held of the King as of some Honor or Castle or else of other Mesne Lords by other Tenures than Knights Service must certainly conclude that not above one half of the Lands of the whole Kingdom was held either immediately of the King or else of other Mesne Lords by that Tenure So that if all these Persons which were far the greater Number of the Free-holders in England should have been thus excluded from having any thing to do in our Great Councils I doubt not but we should have found sufficient Clamour in our Histories against so unjust a Constitution and when the whole Body of the Kingdom was in Arms against King Iohn at Running-Mead they would likewise have inserted a Clause for themselves if they had not had their Suffrages there before either by themselves in their own Persons or by their lawful Representatives And therefore upon the whole matter I durst leave it to the Consideration of any unprejudiced Man whether it is not much more probable that the Constitution of Knights of Shires Citizens and Burgesses appearing in Parliament should be much more antient then the time you assign than that so small a Body of Men as the Bishops Lords and Tenants in Capite should represent all the Freeholders and People of England who never held of them by Knights Service at all Nor have you yet answered the Quotation I have brought out of Bracton in my last Discourse to the contrary And whoever will but consult that Author in his Chapter of Tenures will find that the Tenants in Capite were so far from having a Power of charging all the Mesne Tenants at their Pleasure that in his Chapter de Tenuris it appears that a Mesne Tenant in Capite having purchased an Estate for a valuable Consideration was lyable to no other Services and Conditions than what his Tenure express'd which once performed the Lord had no more to say to him and if so be he laid any further Burthens upon him he might have had a Writ of acquital out of the King's Court against him directed to the Sheriffs several Forms of which you may see in Glanville and in the old Register M. We are not to rest upon meer Probabilities for some things that now appear to us unreasonable at this instant of time might then be very just for if the Feudatary Tenants of the Bishops Barons and other Tenants in Capite were well enough contented with the Constitution of the Kingdom as it then was and that it plainly appears by matter of fact that there was but one Common Council for the whole Kingdom and that of the Bishops Abbots Great Lords and less Tenants in Capite only it is in vain to argue of any unreasonableness in or Inconveniencies that might arise from such a Constitution though perhaps a great part of the Kingdom did not hold in Capite nor yet by Knights Service and therefore though the Feudatary Tenants of the Tenants in Capite were upon the performance of their Services acquitted of all other Charges yet this was still to be understood only of such ordinary Services as those Tenants were to perform by virtue of their Tenures such as was Scutage Service or the attending upon their Lords when they went out to War along with the King but did not extend to such Scutages as were granted in Parliament or as a Tax upon Land by the common consent of the Nation for then the Tenants in Capite were not only the Grantors but the Collectors too of such Scutage Tax from their Military Tenants and the Writs to the Sheriffs were different from those for Scutage Service and for proof of this I desire you would peruâ—e that Writ which the Dr. Quotes of the 19th of Hen. III. which is still to be seen in the close Roll of that Year Rex Vice Comiti Sussex salutem Scias quod Archiepiscopi Episcopi Abbates Priâ—reâ— Comites Barones omnes alii de Regno nostro Angliae qui de nobis tenent in Capite spontanea voluâ—â—â—te suâ— sine Conâ—uetudine concesserunt nobis Efficax Auxilium ad magna Negotia nostra Expedienda unde provisum 〈◊〉 de Consilâ—o illorum quod habeamus de feodis Militum Wardis quae de nobis Tenent in Gapite duâ—s Marcas ad predictum Auxilium faciendum unde proviâ—erint reddere nobis unam medietatem ante Festum sancti Micâ—aelis Anno Regni 19. aliam Medictatem ad Pasche Anno Regni â—osirâ— 20. Ideo tibi precipimus quod ad Mandatum venerabilis Patris R. Cicestren Episcopi Cancellarii nostri sine dilatione Distringas omnes Milites liberos Tenentes qui de eo Tenent per Servitium Militare in Balliva tua ad redlendum ei de singulis feotis militum Wardis duas Marcas ad predictum Auxilium nobis per manum suam Reddendum in Terminis predictis Sic scribitur pro aliis Episcopis Abbatibus Prioribus Magnatibus Now I desire you to tell me whether any thing can be more plain than that this Tax was granted by a Common Council of the Kingdom according to that Clause of King Iohn's Charter I have now cited Wherein it is first especially provided that no Aid or Scutage shall be imposed upon the Kingdom unless by the Common Council thereof and yet you see by this Writ that the Archbishops c. with the Barons there mentioned together with the other Tenants in Capite alone granted an Aid or Scutage Tax of two Marks for every Knights Fee which they held of the King and that by virtue thereof not only those Knights Fees they held in their hands but also all those Subseudatary Tenants called here Freeholders who held of them by Knights Service were likewise charged for every Knights Fee so held the like Summ of two Marks Now I think nothing can be more plain from this Record than that this was a Common Council of the whole Kingdom and yet consisted of Tenants in Capite only and therefore I desire you to shew me some better Proofs than you yet have done that these Tenants in Capite ever made a distinct Council different from the Common Council of the whole Kingdom F. I grant this seems at first sight to be a good Authority for
the true meaning of these Villani by another Record dated but two years after this of yours viz. 21 Hen. 3. Rex Vic. Kant Salut Sciâ—s cum octavis Sancti Hillarii c. ad mandatum nostrum convenirent apud Westm ' Archiepiscopi Episcopi Abbates Priores Comites Barones totius Regni nostri ut tractatum haberent nobiscum de statu nostro Regni nostri iidem Archiepiscopi Episcopi Abbates Priores Clerici Terras habentes quae ad Ecclesias non pertinent Comites Barones Milites Liberi Homines pro se suis Villanis nobis concesserunt in Auxilium Tricessimam partem honorum From this Record we may observe 1. That the King's Writ was only issued to the Arch-bishops Bishops c. Earls Barons of the whole Kingdom 2. That in the recital of this Tax the Sheriff is told first that the Arch-bishops Bishops c. and the Clergy which had Land not belonging to their Churches a certain sign that they granted by themselves and out of nothing else but that and then that the Earls Barons Knights and Free men for themselves and their Villains granted a thirtieth part of their moveables And from this Record it is also manifest these Liberi Homines had Villanos if not Bondmen Villagars or Rusticks Colonos or Husbandmen at least of whose Estates by publick Assent and for the publick benefit they might in part dispose of which Liberi Homines according to the Tenor of all our Records and Histories were Tenants in Capite and that the Villani mentioned in the other Record of 16. Hen. 3. to have given a fortieth part of their Moveables did grant by their Lords that is their Lords Paramount that were Tenants in Capite did grant for them though they held it not immediately of them but of other Tenants in Military Service which immediately held of the Tenants in Capite who did charge them by publick Taxes hath been shewn from divers Records So that it was frequent in those times to say such and such concesserunt granted such a Taxe that is by those who had Power and Authority to do it for them and without their consent too when those for whom they granted were not capable of being Members of Parliament themselves I could give you more Examples of the like Nature but I will not tire you F. I pray Sir give me leave to answer this long speech and to begin with your Interpretation of this word Fideles First then we are so far agreed that the word Fideles had two or three different Significations First it signified all the Subjects in general in the next place all Vassals or Feudatary Tenants whatever whether of the King or any other Lord as appears by the Passage you have cited out of William of Malmsbury as also divers antient Charters particularly those of King William I. and Maud the Emperess and King Stephen which are divers of them directed Fidelibus suis Francis Anglâ— which cannot mean Tenants in Capite since the Doctor and your self will scarce allow any English Men to have then held Lands in Capite of the Crown Lastly I grant this word Fideles may sometimes signifie the Tenants in Capite of the King all which being so I think you cannot deny that it is not the bare word but the sense it bears in the Places where it is used that must direct us to its true Signification and that the fideles there mentioned to have granted Caruage in the 4 th of Hen. 3. could not be the King's Tenants in Capite only I have given you a sufficient reason which you do not think fit to answer viz. That Caruage was a general Tax imposed upon all the Lands of the Kingdom as well what was held by Knights Service as what was not and how your Tenants in Capite could Tax those Lands which were never held by Knights Service I desire you would resolve me And therefore by the Fideles here mentioned in this and many other Records are not to be understood the Tenants in Capite only but all other Subjects who did Fealty who though they could not all appear in Person in our great Councils or Parliaments yet were there by their Representatives the great Freeholders Lords of Mannors or else by the Knights Citizens and Burgesses But I must now make some Remarks upon your Interpretation of â—he Writs of the 16 th and 21 th of Hen. 3. wherein you have certainly very much mistaken the sense of all the main Words For in the first place as for the Clerici terras habentes non ad Ecclesias pertinentes which you interpret to have been Clerks having Mannors and Military Fees not belonging to their â—enefices but held of the King in Capite seems to be altogether forced For whoever heard of Clerks that is inferior Clergy Men Parsons or Vicars of Churches who held Benefices of the King in Capite and not in Franc Almoigne or if they had any such that therefore those Lands so held should be called Lands not belonging to their Churches for at this rate the Lands of Bishops all Abbots Priors c. which held of the King in Capite would have been in your sense Lands not belonging to the Church but who but you and your Doctor ever gave such an unreasonable Comment on those words Nor will that Passage you cite out of Mat. Paris at all favour your Interpretation for either these Bishops and Prelates there mentioned gave this sortieth part of their Moveables in Parliament with the rest of the Kingdom or else as Clergy men in Convocation If the former then these Clerici could have no Votes there in Person for I believe it would puzzle you to prove that at this time any Ecclesiastical Person below the degree of an Abbot or Prior had any place in Parliament by reason of his Tenure by Knights Service in Capite for those Lands he held in Right of his Church but if you 'll have this Tax to be granted by the whole Clergy in Convocation then such Clerks as you mention could not be there in Person First because they are said to be such as had Lands quâ—e ad Ecclesias suas non pertinent and so could not have any place there as Clergy-men nor could they be included under the Praelati since that word takes in none beneath the degree of a Dean And therefore if these Clerks gave any thing in Parliament they must do it by their lawful Representatives the Knights of Shires or if in Convocation by their Clerks of the lower House then called Procuratores Cleri So that take it which way you will those Clerks could not be present themselves at these Parliaments when those Taxes of the 30th and 40th part of their Moveables were given to the King and therefore either as Lay-men or Clergy-men must be Taxed by their Representatives but in deed the words Proceree Regni which immediately come after Episcopi Pralati in
Matth. Paris sufficiently shews this grant was made in Parliament that the word Proceres often includes not only the Knights of Shires but Citizens and Burgesses too I have already proved when I spoke of the various significations of that word Nor is your Interpretation of Liberi homines for Tenants in Capite who Taxed their Villani any other than a meer wresting of these words for if they were only those who gave for themselves and their Villaines whom you suppose were either their Bondmen or else their Rusticks or Husbandmen it is absolutely contrary both to Law and Reason for whoever heard that Villains or Bondmen who had no property either in Lands or Goods ever payed Taxes And if you suppose that these Villani were only the Rustick Tenants in Socage by Villain Service of the Tenants in Capite then it is plain that all the Military or Feudatory Tenants of the Tenants in Capite and all Tenants in Free Socage by certain Rent were exempt from both these Taxes since they are not so much as once mentioned in these Writs neither can be comprehended under these Villani as your self must acknowledge For if these Villani were meer Rusticks pray tell me what reason there was to put them check by Jole with their Lords as they are in the Record of the 16th of Hen. 3. as if they had given by themselves as well as the rest of the Freemen of the Kingdom Or what reason is there why the Lords as the words are in your Record gave pro se suis Villanis if the Liberi homines there mentioned had not represented them which could never have been said with any sense had they been only so many Freemen or Masters over their Slaves where as it here appeares every one of these orders or degrees of Men here mentioned had an equal independent Power to give for themselves and not one for another or else this word may be meant in a larger sense as in the Record of the 16th of Hen. 3. where they are put in the Nominative Case as equal to the rest of the Orders of men there recited and so could not be Husbandmen or meer Villagers but the Inhabitants pof Cities and Burroughs and which sense Sir Henry Spellman allows in his glossary Villanus est qui iâ— Villa habitas ut Vrbanus ab Vrbe c. Villa autem propria â—â—â—at Viculum Rusticanum sed a â—e more Gallici idiomatis eraducitur ad insignia oppidu ad ipsas vrbes but take it in what sense you please it is plain it could never here mean meer Villagers nor could all your Liberi homines â—e only Tenants in Capite for then the Record would have concluded thus Liberi homines qui de nobis tenent in Capite as it is in the Record you have cited of the 10th of Hen. 3. to the Sheriff of suffex and may be found in many other Records which respect only Tenants in Capite And for further proof of this sense of the word Villanus we need go no farther than these very Records themselves of the 16th and 21th of Hen. 3. which you and I have now made use of in both which Writs there are certain Persons appointed to Assâ—ss and Collect the Aids in every County and who by Vertue of these Writs did cause to be Elected four of the best and most lawful Men de singulis Villis of each hundred in the Counties there mentioned and then the Villani will signifie in these Writs not Villaines or meer Rusticks who were not then reckoned inter Lâ—galea homines And though 't is true you have brought some Presidents to prove that the Tenants in Capite gave Taxes for their Feudatary Tenants yet that was only where the Tax was raised upon Knights Fees alone and not upon all the â—ands of the Kingdom in general much less upon Goods and Chattels so that either the Liberi Homi-nes mentioned in these Records must mean all the Freemen of England who by their Representatives gave these Taxes of a 40th or 30th paâ—t for themselves and all such of their Tenants who held Estates of Copy-hold Leases for Years or at Will or had Estates in Stock Money or other Chattels nor otherwise could these Taxes ever have been general not charged upon moveable goods of the whole Kingdom I have but one thing more to remark upon your Observations of this Writ which is that whereas you take notice that the King's Summons was directed to none of the Laity but the Earls and Barons of the Kingdom and if so I desire you to prove to me that your less Tenants in Capite were at all present at those Parliaments for you have already granted that they were no Barons and consequently could not be included under that Title so that if these Liberi Homines who granted this Tax for themselves and their Tenants were not only Tenants in Capite but their under Tenants also by Military Service as the Doctor himself grants in his Answer to Argumentum Antinormannicum p. 25. as also in his Glossary p. 51. therefore unless you can prove that your Liberi homines were all Tenants in Capite you will never make out that none but they and the less Tenants in Capite had a right under that Title to appear at our great Councils or Parliaments and to grant Aids and joyn in the making of Laws for themselves and the rest of he Nation before the times you allow To conclude unless you can also prove that there was a Tenure in Capite of Goods and Chattels as well as of Lands it will appear by these Aids granted in Parliament of Personal Estates that all Freemen or Freeholders were alike Free and consequently had the same right to appear in Parliament either by themselves or their Representatives M. But pray make out if you can by some more evident Proofs that any others besides Tenants in Capite were admitted into our great Councils and that these Liberi Homines were not Tenants in Capite F. I think I need go no further than the first words of the Agreement between King Iohn and the Barons which is still extant on the close Rolls of the 17th of this King m. 2. dorso beginning thus Has est convenâ—io inter Dominum Iohannem Regem Angliae ex una parte Robertum Filii Walteri Marescalli exerciâ—us Dei sanctae Ecclesia Angliae Ricâ— Comiâ—em dâ— Clare c. and here follow the Names of divers of the rest of the Earls and Barons allos Comites Barones Liboros Homines totius Angliâ—e so that it is clear this Charter was granted in a great Council of the whole Nation in which were assembled not only the Bishops Earls and Barons with all your less Tenants in Capite but also all the Clergy as well the Inferiour as Superiour and all the Freemen or considerable Freeholders of the whole Kingdom or as Mr. Selden words it in his Titles
other Weapons And the 2d Article of King Iohn's Charter says expresly Concessimus etiam omnibut Liberis Hominibus Nostris Regui Anglia pro Nobis Haeâ—elibus Nostris in perpetuum omnes Liberates subscriptas â—abeâ—das â—enandas eis haeredibus â—uit de Nobia Hâ—rodibus nostris Which the Dr. himself renders thus We have also granted to all our Freemen of the Kingdom of England c. And sure then this Charter could not be made to none but Tenants in Capite unless you will suppose that none but they were Freemen and all the rest Slaves Nor was this Charter only made to relax the severity of the Feudal Tenures as you suppose since there are divers other Clauses in it which concern all the rest of the Freemen and Free holders in England as well as they for besides the first and second Chapters of this Charter which grants and confirms to the Church of England and to all the Freemen of the Nation their Rights and Liberties If you please better to consider it you will find that there are several other Chapters in this Charter which all other Freemen as well as the Tenants in Capite have thereby an Interest in as you may see by the 10 11 12 13. 15 16. 22 23 24 25. and above 30 other Chapters or Clauses therein exprest which are granted not to Tenants in Capite alone but either to Ecclesiasticks or other Lay Freemen of the whole Kingdom But to prove this a little further I shall give you but one or two instances out of this Magna Charta and that too in the Drs. own Translation Article 48. No Freman shall be taken or imprisoned or disseised of his Free Tenement or Liberties or Free Customs or Out-Lawed or Banished or any ways dâ—stroyed nor will we pass upon him or commit him to Prison unless by the Legal Judgment of his Peers or by the Law of the Land i. e. by Legal Process The other is the 49. Article of this Charter that we will not sell to any Man we will not deny any maâ— or delay Right or Justice Now Judge your self whether these two Articles were made to the Tenents in Capite alone or to all the Freemen of the whole Kingdom And hence it also plainly appears that the same Body of Freemen to whom this Charter was made were likewise present and gave their Assents to the making of it Nor were Vavasors or Fendatary Tenâ—nts of the Bishops Abbots great Lords and other Tenants in Capite Persons so inconsiderable as you would make them that they only should come hither but as followers to augment the Noise since I have already proved from Bracton that there were divers of them Men of great Estates and Power in their Countries besides the Tenants of those Abbots and Priors who as I have already mentioned did not hold in Capite of the King at all and yet made a great Part of the Kingdom besides Tenants in Petyâ— Serjeanty and those that held of great Honours who could never be represented by the Tenants in Capite at all And therefore I must notwithstanding what you affirm to the contrary look upâ— on all these Persons for as good Law-makers as the greatest Lords or Tâ—nants in Capite of them all since the main force of the Nation did not lye in them but in their Feudatary Tenants who would never have followed their Lords in this Assembly if they had not look'd upon themselve as having as good an interest in the Rights and Liberties they demanded as appears by this Silvo of all their Liberties as their Lords themselves and also as good a Right as they in giving their Assent to them when they were to be pass'd into a Law as they were by this Charter since these Feudatary Tenants were not at all obliged by their Tenure to obey their Lords Summons at any other Warlike expeditions but where the King or his Lieutenants went out in Person M. I am very well satisfied that this could be no Parliament for the reasons already given and tho I grant that these Charters were made to and in the Presence of the greatest part of the Clergy Earls Barons and Freemen of the Kingdom yet this proves not that they had any Vote or Suffrage in making of them nor indeed could they for the great Charters were only the Petitions of the People drawn into the Form of a Charter and passed under the King's Seal as his meer voluntary Free Grants and Concessions without any Votes or Authority from the People And therefore the great Charters of Henry III. recites them to have bin made of his meer Grace and Free Will as it is in the Preface to it But pray answer me a few plain Questions concerning King Iohn's Charter which if you can resolve I may be inclined to believe there might be some other great Council besides that of Tenants in Capite The first is if this Common Council of Tenants in Capite were for Assessing of Aids and Escuage only as you suppose it is provided by the last Clâ—use of this Charter why was the Cause of the Meeting to be declared in every Writ of Summons to the great Barons and Tenants in Capite if they were only Summoned about Aids and Escuage or other ordinary business of Course sure then the Cause of Summons need not to have been declared as it is here provided In omnibus Litâ—er is Submonitionis causam Submonitionis illius exponemus F. I will give you an answer to this Question immediatly but before I do it let me tell you that you are much mistaken in saying that the great Charters because they were the Kings Free Concessions were therefore passed without any Votes Suffrages or Authority of the People of England Since I have already proved in our discourse concerning the legis â—â—tive Power that the matter of those Charters was no more then an affirmative of the Common Law of England long before your Conquest and that the Peoples consent and Suffrage was sufficiently given in their drawing them up and offering them to the King to be Sealed and accepting them from him when he had done it And therefore that the great Charters are always called Statutes in our Ancient Records and Aâ—â—s of Parliament But to answer your Question I suppose that the King besides the ordinary business of their Assessing Escuage had often other affairs of great moment to be transacted with and Communicated to his Bishops great Lords and Tenants in Capite in which the rest of the Kingdom were not at all concern'd such as giving the King their Advice as a great Council concerning divers weighty Affairs as in the business of Sicily mentioned in the first Record I have cited as also about undertaking Forraign Wars against France Scotland Wales c. in which they were bound to follow and assist him together with their under-Tenants according to their respective Tenures and therefore it was but reason
to the like Exactions of his Son Hâ—n the Third which are branded by all Writers as horrible and illegal oppressionâ— nay are owned to be so by this Kings frequent Confirmations of Magna Charta and Acknowledgments of his breach of them and promised to observe them better for the future But I am sorry to find your Doctor whom you follow both in his Answers to Mr. P. and Mr. A. as also in his compleat History still to cite the most violent and illegal Actions nay the very perjuries for â—lowers of the Crown and Royal Prerogatives But as for the Authorities you urge for this Kings Talliating his Demesnes without consent of Parliament you your self grant that this Talliage was not general upon the whole Kingdom and if so could only concern his own Tenants in ancient Demesn and none else who were always exempted from being taxed with the rest of the Nation because they were lyable to yield the King a reasonable Talliage ratione Tenurae whensoever he needed it yet this was counted rather a priviledge than otherwise since they were not only free from all other burthens and Parliamentary attendance but were also Taxed much less than the rest of the Nation in regard of their Tilling the Kings Lands but when this reasonable Prerogative grew to be abused and the Exactions levyed upon them became intollerable then they would no longer suffer it but got it taken away by the Statute de Tallagio non concedendo after which we find the Tenants in ancient Demesne frequently giving their shares of Aides and Subsidies in Parliament by Delegates of their own as in the Record of the 35 th of Edward the First which you have now cited till at last they came to be resolved into the common body of the Kingdom but aâ— for the City of London it was never taken for part of the Kings Demeans and so is not to be found in Dooms day Book but as appears by Record held of the King in Capite and therefore could be no otherwise Taxed then as the rest of the Tenants in Capite that is by the Common Council of the Kingdom And this made the Londoners deny to be otherwise Talliated as appears by this Record of Henry the Third which you have now cited But the truth is they had this Exaction first laid upon them in the exorbitant Reign of King Iohn and this was afterwards trumped again upon them in all the ill part of his Sons Government because his Father had done it before and I doubt not but if Ship-mony had passed unquestioned and been as often paid in the Reign of K. Charles the First but that it would have been urged as a Precedent in the Reign of Charles the Second But as for your last Authority of the 33 d. of Edward the First pray take notice that it is before the Statute de Tallagio non concedendo and extends only to such Estates in ancient Demesn as were held of the King by Noblemen or Gentlemen either by Gift or Purchase and which for all that still kept the ancient custom of being Talliated by the King as their under Tenants were by them to enable the Lords to pay the Kings Talliage and in this sense I understand these words in this Record unde sunt in Tenantia i. e. of which they are in Tenancy to the King Nor does the Record call them Dominica sua as it does the Kings Demesns that follow so that this could not be a Tax upon all under Tenants by Knights Service as you suppose sinâ—e their Estates were never called Antiqua Dominica and therefore I think after all you cannot shew me any legal Precedent that our Kings claimed a Right under colour of their Prerogative of Taxing the whole Nation de Alto â—â—sso at their pleasure M. I shall not now dispute it longer with you whether the Kings of England had not anciently a power of Taxing the Lands held of them without the consent of their Great Council but thus much I think I may safely aver that when this Great Charter was made the Tenants in Capite as the Common Council of the Kingdom gave Taxes and made Laws not only for themselves but their Mesne Tenants and the whole Nation also Nor was this at all unreasonable that those who thus held Estates by Mesne Tenure under the Tenants in Capite should be bound by the Acts of those of whom they held them since we see in Scotland that at this day none sit there either as Commissioners of Shires or Burgesses for the Royal Buroughs but such as hold in Capite of the King for anciently before the Law for excusing the smaller Barons and free Tenants in Capite and sending Commissioners of Shires in their stead was introduced by a Statuâ—e made in the Seventh Parliament of K. Iam. 1. A. Dom. 1420 it consisted all of Tenants in Capite viz. of the Bishops Abbots Priors Earls Barons Libere Tenentibus qui de Râ—ge tâ—nent in Capite as appears by the very words in the Latine Titles to divers of those Statutes as you may find them in Slenes Collection of Scotch Laws Now if this Law did anciently and does still prevail in Scotland that the Tenants in Capite should be the sole Representatives of that whole Kingdom I cannot see any Reason why it might not have been so anciently in Englâ—nd also especially since I can give you so good Reasons to back this opinion M. I will answer your Argument from Scotland by and by but in the mean time give me leave to tell you why I think it could never have been the custom in England and that for two Reasons first because it was against Reason and 2 ly because it was against the known Law of the Kingdom that it was against Reason is apparent since what reason was there that if a Man in those times purchased an Estate for a valuable consideration of a Lord or any other Tenant in Capite as certainly thousands did to be held either by Knights Service or in Socage that such a Tenant should lye at the Mercy of his Lord to dispose of his Estate in Taxes and make Laws for him at his pleasure however exorbitant those Taxes were or inconvenient those Laws might prove the Lord being no Representative of his own choice or appointment In the next place that this was contrary to the received Law and Custom of the Kingdom in those times I can prove by two very sufficient Authorities the one of the Earl of Chester the other of the Bishop of Durham Now it is certain that both this Earl and Bishop helâ— their County Palatines in Capite immediately of the King nor had those Counties any Representatives in Parliament till long after that they had Knights of Shires and Burgesses granted them by particular Statutes made for that purpose now according to your Hypothesis all the Freeholders and Inhabitants of those County-Palatines should have been bound by all Acts
of Parliament and Taxed with the rest of the Kingdom as often as there were Laws made and Taxes given when their Bishop or Earl was present which was not so for in the first place as for the County of Chester if the Earl had been the Representative in Parliament of his Tenants by Knights Service or otherwise as also of all the Abbeys and the City of Chester it self and all other great Towns in that County his Vote in Parliament would have obliged all of them and there would have been no need of a Common Council or Parliament of the States of the whole County in which they then made Laws and Taxed themselves as a Separate Body from the rest of the Kingdom as may appear from these following Records which Mr. A. hath given us the first of which is a Writ of K. Edw. I. directed Archiepiscopis Episcopis Abbatibus Prioriâ—us Baronibus Militibus omnibus â—liis Fidelibus suis in Comitat. Câ—striae reciting that whereas the Prelates Counts Barons alii de Regno had given him a 15 th of their Moveables He desires that they also would of their Benevolence and Courtesie in Latin Curialitate grant him the like Subsidy which Note could not be done out of a Common Council So likewise in another Writ of the 20 th of this King reciting that whereas the Probi Homines Communitas Cestriae sicut caeteri de Regno nostro 15 mam partem omnium mobilium suorum nobis concesserunt gratiose Now supposing as the Doctor always does that these Probi Homines were the Earls Tenants in Capite what can this word Communitas here signifie but another sort of men distinct from them viz. the Communalty or Commons of that County And which is also remarkable this County was now fallen to the Crown for want of Heirs male of the last Earl and so according to the Doctors notion the King being their sole Representative needed not to have been beholding to them for these Subsidies since tho not as King yet as Earl of Chester he might have Taxed them himself which yet he thought not fit to do because he knew it was contrary to the Rights and Priviledges of that County which had ever since the grant of it to Hugh Lupus by Will I. always been Taxed by themselves Which Priviledges are also expressly set forth in a Supplication of all the Estates of this County Palatine to K. Henry the Sixth which Mr. P. has given us from an Ancient Copy of it then in the hands of Sir Thomas Manwaring of that County Baronet Wherein the Abbots Priors and Clergy Barons Knights Esquires and Commonalty set forth that they with the consent of the Earl did make and admit Laws within the same c. and that no Inheritors or Possessors within the said County were chargeable or lyable or were bounden charged or hurt of their Bodies Liberties Franchises Lands Goods or Possessions unless the said County had agreed unto it Now what can here be meant by County but the Common Council or Parliament thereof since otherwise they could make no Laws nor do any other publick Act The like I may say for the County Palatine of Durham which from the Grant thereof by William Rufus to the then Bishop had always been Taxed by themselves and not by the Bishop in Parliament and that as low as the Reign of Edw. 3. as appears by this Record of the 14 th of that King containing a Letter or Commission to R. Bishop of Durham reciting that whereas the Prelates Earls Barons and the Commons of Counties had given him a 9th of their Goods there mentioned that therefore the Bishops should convene the Magnates Communitatem Libertatis vestrae to wit of his County Palatine ad certum diem locum with all convenient speed and that done to perswade and excite the said Magnates Communitas to grant the King the like or a larger Subsidy or Aid towards the maintainance of his Wars which had been altogether in vain if the Bishop or the King could in those days have Taxed this County at their Pleasure Now if these great Tenants in Capite could not Tax their Mesne Tenants without their consents much less could the rest of the Tenants in Capite in England impose Taxes on their Tenants in Military Service or in Socage without their consents which last had a much less dependance upon them M. I must confess I never considered these Precedents of the County Palatine of Chester and Durham and therefore can say nothing to them at present since it is matter of fact but as to Reason and Law I think it is consonant to both that not only Tenants in Military Service but Socage Tenure should be found by the Acts of their Superior Lords of whom all the Lands of England were formerly held by Knights Service And tho in Process of time many of these Estates and Lands became free Tenements or were holden in Socage that is were Free holders yet the Lords retained Homage which in the times we now write of was no idle insignificant word and by that a Dominion over the Estate whereby upon Disobedience Treachery or Injury done to the Lords c. the Lands were Forfeited to them and although the Lands nor the Tenants of them which were termed Free-holders were subject to any base Services or Servile works yet the Lords had a great Power over these Tenants by reason of their doing Homage to them which tho now antiquated yet eo nomine their Lands were many ways liable to Forfeiture and Taxes too So that upon all thesâ— accounts it was then as reasonable that the Tenants in Capite should in those days make Laws and grant Taxes for all the rest of the Kingdom as the Tenants in Capite in Scotland should do so to this very day for all the Inhabitants of that Kingdom of never so great Estates and to this Argument which is certain in matter of fact you have yet answered nothing nor do I believe can F. I cannot see notwithstanding what you have now said that the Superior Lords by reason of Homage should have an absolute Power over their Tenants Estates For tho in the Profession of Homage to the Lords I grant the Tenant thereby promised to become the Lords Man yet he never thereby meant to become his slave and there were mutual Duties on both sides so that if the Lord failed to protect his Tenant in his Estate or unjustly oppressed him he might have refused nay renounced his Homage till the Lord had done him right nor can I see how a bare right of having the Forfeiture of the Estate in the Cases you have put which yet let me tell you were never so strict in respect of Socage as Military Tenure as I could shew you were it worth while for if this right of Forfeiture alone could give the Superiour Lord a Power over his Tenants Estate to make Laws for
whole Nation in Parliament and I am of this opinion because in many of the old Statutes before the time of Robert the 2 d. we find the Communitas totius Regni coming immediately after the Earls and Barons as in our own ancient Statutes and Records but after those Reigns we find no more mention of this Communitas but only of the Dukes Earls Barons Liberi Tenentibus Burgensibus qui de Rege tenent in Capite as in the Titles to those Statutes of K. Robert the 3 d and Iames the 5 th you have now cited And yet that Liber Tenens was not anciently taken for a Tenant in Capite only pray see the 14 th Chap. of the Laws of K. Alexander the 2 d. made Anno Dom. 1214. with your Doctors comment upon them Statutum est quod nec Episcopi nec Abbates nec Comites nec aliqui liberi Tenentes tenebunt curias suas nisi Vicecomes Regis vel servientes Vicecomitis ibidem fuerant upon which words the Doctor in his answer to Mr. P. hath this remark viz. this again shews us that the Freeholders were Lords of Mannors at least So that unless you will suppose that none but Tenants in Capite were Lords of Mannors or held Courts as certainly very many of the Mesne Tenants did this word Liber Tenens must extend to any other great Freeholder or Lord of a Mannor of whatsoever Lord he held it and as such might anciently have had a Vote in that Parliament so that if I have as I think sufficiently proved that the word Communitas coming after the Earls and Barons in our ancient Statutes and Records did certainly signifie another order of men distinct from the Tenants in Capite I I have the same reason to believe it was so in Scotland too not only because these general words Communitas totius Regni must needs be more comprehensive than to express the Tenants in Capite only who could never Represent all the great Freeholders in Scotland any more than they did in England but also because it is acknowledged by the Scotch Lawyers that the Fundamental Laws and Constitutions are the same in both Kingdomâ— for Sir Iohn Skene in his Epistle to K. Iames before his Scottish Laws says thus Intelligo tuas tuorumque Majorum leges cum legibus Regni tui Angliae magna ex parte consentiunt which is also acknowledged by the King himself in the Speech he made in Parliament concerning the Union of both Kingdoms To conclude I cannot but admire your Doctors strange partiality who does allow the Commons of Scotland to have even been a third Estate when he expressly grants that the Commons of Scotland were and are at this day the Kings Tenents in Capite and that the Kings Royal Burroughs were such as ever did and do at this day in Scotland only send Burgesses to Parliament Now why the Cities and Burroughs in England should not have always had the like Priviledge as well as in Scotland I wish you could give me any sufficient reason M. Since you own that the Tenants Capite or else Commissioners in their stead have been the sole Representatives for the whole Kingdom of Scotland for above 200 years I doubt not but they were so long before that time since you confess you cannot shew any Law by which this ancient Custom came to be changed though I grant that the Statutes before K. David and Robert the 2 d are said to be made by the Communitas totius Regni yet you must not suppose that Constitution of the Kingdom altered when the Clerks altered their phrases in penning their Statutes and Records so that this Communitas was the Community of the Tenants in Capite only and not of the Freeholders or of the Citizens and Burgesses of the whole Kingdom since as for the former you cannot say that all the People in Scotland had ever a right to chuse the Commissioners for the Shires for then 't is most likely they would have kept to this day whereas we see that none but Tenants in Coplie have Votes at such Elections And as for Cities and Burroughs I cannot find nor do I believe you can shew me any instance of a City or Burrough-Town in Scotland that ever sent Deputies to Parliament but what held in Capite of the King For though there are at I said already besides the Royal Burghs two other sorts viz. Burroughs of Regality and Burroughs of Barony who hold of the King but not in Capite or else of some Bishop or Temporal Lord and though divers of these are considerable for Trade and Riches yet none of them send any Burgesses to Parliament so that though I confess there are three Estates in the Scotch Parliament called in the Statutes of K. David and Robert the 2 d the Treâ— Communitates Regni yet did these always consist of the Tenants in Capite only who therefore sit together and make but one Assembly Now that we may apply what hath been said to England I desire you to take notice that the Doctor and we that are of his opinion do not positively affirm that that the Commons of England were not at all represented before 49 Hen. 4. but that they were not represented in Parliament by Knights Citizens and Burgesses of their own choice but by the greater and lesser Tenants in Capite the greatest part of which I grant were not Lords and admit that I should grant you that some Cities and Burroughs sent Members to Parliament before the 49 th of Henry the Third yet were they only such as held in Capite and no other as the Doctor has very well observ'd in his Answer to Mr. P's argument from the Petition of the Town of St. Albans so that upon the whole matter there will be no more gain'd by you in this Controversie than that perhaps some Citizens and Burgesses appear'd in Parliament and constituted a third sort of men which you may call the Commons if you please though I cannot find they were so called till after the time of Edward the First but supposing this to be so it is very far from your Republican levelling opinion who do suppose that all the Freeholders of England had an ancient indisputable right of appearing in Parliament by reason of their propriety in Lands or other Estates whereas by our Hypothesis we suppose the great Council or Parliament to have anciently been the Kings Court-Baron consisting of his immediate Tenants call'd thither by him their Supreme Lord to advertise him of the Grievances of the Nation and to propose what new Laws were necessary for the publick good of the Commonweal and together with him to raise such publick Taxes both upon themselves and their Tenants as the necessities of the State requir'd yet notwithstanding there is a vast difference between your notion and mine concerning the Rights which such Tenants in Capite might claim of coming to Parliament since before King Iohn's Charter whereby
I grant all the lesser Barons or Tenants in Capite were to be Summonld by the Sheriff to come to the Common Council of the Kingdom the King might have only call'd some of the greatest and wisest of them and such as he thought most fit to advise him in making Laws and imposing Taxes upon the Nation And the like Prerogative his Son Henry the Third resumed during the greater part of his Reign as I shall shew you from divers old Statutes by and by And that our Kings did often take upon them to call whom they pleased and omit whom they pleased of these Tenants in Capite may appear by those who were called Pares Baronum or alios Magnates who are put after the Barons and of these there are many instances of their being called to Parliament and again omitted in several Kings Reigns after the Commons were a third Estate as represented as at this day F. I must beg your pardon if I cannot come over to your opinion notwithstanding what you now have said since I do not find your reason to come up to what you intend therein for you only suppose but without any proof that the words Populus and Communitas must signifie only Tenants in Capite in the ancient Scotish Charters and Statutes All the Argument you bring to the contrary is that I cannot shew you any Law by which it was altered to what it is now and therefore that the Constitution has been always the same as at this day Now pray consider whether this will not press altogether as hard upon you in relation to England for you cannot shew me any Law whereby the Tenants in Capite were excluded here and Knights of Shires introduced in their fleads and therefore by the same Rule let the Scottish Parliaments have been of what they will yet ours have been still the same they are now But if you say that this contrary usage hath been introduced either by the Kings Prerogative or by the silent consent of the People or by some Law that is now lost are not all the same Arguments to be made use of in the case of the Scotish Parliaments which I may upon as good Grounds suppose to have deviated from their original Constitution as you do that our English Parliaments have done it So that if those Arguments are of any weight they will serve for England as well as Scotland but if they are not it is in vain to make use of them at all The like I may say as to Burroughs in Scotland since it is as easie to suppose that divers Burroughs in Scotland might voluntarily desist from sending their Deputies to Parliament that did not hold of the King in Capite as it is that divers Burroughs in England did Petition to be exempted from sending Burgesses to Parliament by reason of their inability to pay the Expences of their Burgesses as I could shew you by divers Precedents some of which are in Print had I now time As for the rest of your Discourse I cannot imagin to what it tends for if the Tenants in Capite had any place in or right to come to Parliament how came they to have it but by reason of the great Freehold Estates they held of the King and if so I can see no reason why those that had as good or better Freehold Estates than they should be all excluded Or why a small Tenant in Capite of but one Knights Fee held of the King in Capite should give him a right to a place in Parliament and get that a Mesne Tenant or Vavasour as he was then called who held ten Knights Fees of some Bishop or Abbot who perhaps did not hold in Capite at all should have no right of appearing there nor of choosing any Representative for him since notwithstanding all you have now said the Doctor either contradicts himself or you when he tells us expressly in his Answer to Mr. P. That the Tenants in Capite who were no Barons represented only themselves and not the Commons but how this will agree with what he says in his Introduction that the Body of the Commons had no share in making Laws c. before 49 th of Henry the Third unless they were represented by thd Tenants in Capite and if so must then certainly represent those that he here calls the Body of the Commons of England Collectively taken But as for your notion of the Parliament's being the King's Court Baron tho you have borrowed it of a Learned Scotch Lawyer Sir George Meâ—â—ensy yet let me tell you it was never true for it is well known that the Great or Common Councils both in England and Scotland are much more ancient than the Tennres of Lands by Knights Service or then the very Institution of Mannors in this Kingdom which the Doctor tells us are of no higher an original than the Norman Conquest But admit I should allow your notion of the Parliaments being anciently the Kings Court Baron then certainly all the Tenants in Capite had a right to appear there and to be not only Suitoâ—s but Judges of all differences arising among the Tenants in the Lords Court where neither the Lord himself nor his Steward were Judges and that of right and not by savour whereas you suppose such a Court-Baron as was never heard of where the Lord could admit or exclude whom of his Tenants he pleased to which if they had a right ratione Tenurae certainly he could never do So that instead of a Court-Baron and a Common Council according to King Iohn's Charter whereby all the Tenants in Capite were to be Summoned to this Council or pretended Court Baron you suppose the King still retained a Prerogative of calling or omitting whom he pleased which instead of confirming the validity of the Charter and that it was to be a Rule how such Councils should be called for the future you make to signifie just nothing and that no Common Council was ever called according to that Model But pray shew me a Court-Baron wherein the Tenants ever took upon themselves a Power of giving Taxes out of their Estates that did not hold of the mannour though they were resident within it But indeed you are out in the whole matter for the Doctor himself grants in his answer to Mr. P. when he gives us King Iohn's Letters of Summons to a Council directed to the Barons and Knights and as he translates Eidelibus Feudatories or Vassals of all England wherein he lets them know that he had sent his Letters to every one of them if it might have been done Now what reason had he to write thus if these Gentlemen had no right to be consulted or that the King might have called or left out whom of them he pleased But the Barons and Tenants in Capite were in another mind when in the 37th of King Hen. III. as Mar. Paris tells us they refused to Act or Proceed upon any thing
Men of the Kingdom had then in full Parliament on the first of Iune granted him 40 s. on every Knights Fee to Marry his Daughter and it thence also appears that tho this Tax is said to be given for themselves and the whole Community of the Kingdom yet it was by the Community of Tenants in Capite alone because it was to be raised wholly upon Knights Fees so that hitherto in this Kings Reign there appears nothing that can plainly evince either the Summoning or being of any Commons in Parliament as now understood we are at least left at great uncertainties nay in my Opinion the proof is more strong on the Negative that there were none F. I wonder you should mention this Writ any more since I have already confuted the Doctors notion about it and proved that it was a general Tax granted by the Parliament upon the whole Kingdom and not laid either by or upon the Community of the Tenants in Capite alone nor does the way of Taxing by 40s upon every Knights Fee at all prove it for if it is to be understood of Lands only held by Knights Service then this Tax could not have extended to any other Estates as certainly it did since the King could by King Iohn's Charter have forced his Tenants in Capite to grant him an Aid towards this Marriage of his Daughter and if what you say be true could also have made all the Mesne Tenants of the Tenants in Capite to have contributed to it according to the Knights Fees they held and this without calling a Parliament at aâ— therefore pray give some better Authority then this for Iâ—e assure you I am not at all satisfied with it M. I will now give you the Writ the Doctor has discovered and by which it will plainly appear that this Tax granted in the 18th of this Kings Reign was given before ever the Commons were Summoned to it and for this the Learned Doctor has found out a loose bundle of Writs of this year directed to the Sheriffs of most Counties of England and they are the ancientest Extant or perhaps that ever were for in probability the calling of Knights Citizens and Burgesses according to that Example was discontinued from the 49th of Hen. III. unto this time by which two or three Knights were directed to be chosen for each County pray read the Writ it self since I look upon it as the first Pattern of this kind that of the 49th of Henry III. seeming to have been Written in haste without those Forms that were afterwards required in Writs of this kind and particularly in this Edwardus Dei Gratiâ Rex Angliae Dominus Hiberniae Dux Aquiâ—aniae Vice-comisi Westmâ—rlandiae Salutem Cum per Comites Barones quosdam alios de Proceribus Regni Nostri nuper fuisseâ—us super quibusdam Speciâ—liter requisiti super quibus tam cum iâ—sis quam cum aliis de Comitatibus Regni illius Colloquium haâ—ere volumus Tyactatâ—m tibi praecipimus quod duos vâ—l tres de Diâ—cretioribuâ— ad laborandum potentioribus Militibus de Comitatu praedicto â—ine delatione Eligi eos ad nes usque West monasterium venire facias ita quod sint ibidem à die Sancti Iohannis Bapt. prox futur in tres Septimanes ad ultimum cum plena potestate pro se Communiâ—ate Comitat. praedicti adconsulendum consentienoum pro se Communitate illâ hiis quae Comites Barones Pro. ere 's praedicti tunc dixerine concordanda habeas ibi hâ—c Breve Teste meipso apud Westmonast 14 die Jun. Anno. Regni Nostri 18. Whereby you may see in the first place that there was yet no certain number of Knights of Shires settled who were to be Summoned to appear at this Parliament And you may in the next place remember from a before mentioned Record of the 30th Ed. I. that on the first of this Month the King had Scutage then given him in full Parliament and now Fourteen days after at the Instance of the Earls Barons and other great Men of the Kingdom upon certain matters by them moved and propounded to him He Issued His Writs of Summons to the Sheriffâ— of the several Counties to cause to be chosen two or three Knights of each Counties to come to him at Westminster three Weeks after St. Iohn Baptist at farthest We may also further observe from this Writ that it is most probable though it is not here absolutely said so that the King was moved by the Earls Barons and great Men of the Kingdom to call these Knights to this Parliament and that as this Writ is the first to be found after that of the 49th of Henry III. so it really was the first Writ of Summons after that time for the Election of Knights to represent the several Counties In the next place that there could â—e no Citizens nor Burgesses chosen or sent to this Parliament by Vertue of this Writ as they were afterwards by directions contained in the Writs sent to the Sheriffs for Electing Knights of the Shires Lastly that by this Writ the Knights were to come to the King at Westminster three Weeks after St. Iohn Baptist at furthest which was the 15th of Iuly also that in the same year between the time of the date of the Writ and the time appointed for Meeting of the Knights The Statute of Westminster the third was made as may appear by this Clause at the beginning Dominus Rex in Parliamento suo apud West monasterium post Pascha-Aâ—o Regni sui Decimo octavo videlicet in Quindena Sancti Iohannis Baptist. that is the 8th of Iuly ad Instantiam Magnatum Regni sui Concessiâ— Providit Statuit Quod de caetero liceat unicuique libero homini c. So that this was the same full Parliament which gave the King Scutage on the first of Iune and then the King and Barons without the Commons made this Statute or the Knights had another Summons after the Date of this Writ for before that they were not in Parliament or the Knights came a Week before they had need to have done but neither of the latter are probable seeing the Knights then were great Husbands of their time and Expences and were not very forward to undertake this Service as being constantly bound with or engaged by Sureties or Manucaptors for the performance of it and their appearance in Parliament and therefore it seems reasonable to conclude that this Law was made without them and before their coming to Parliament So much of this Writ from which as well as divers following Writs and other Records it is evident that it was from this Kings Authority and at this very time that the House of Commons came to be fixed and establish'd in the present constant Form it is now and hath been in for many Kings Reigns and than the King in this Age was not altogether confin'd to any Number of Knights
future Parliaments the words are ad faciâ—ndum quod â—unc de Communi Consilio ordinabitur or the like as appears by the Writ of Summons of the 23d of this King which the Doctor has printed whereas the words in this Writ are ad consentiendum c. â—iis qua Comites Barones Proceres â—radicti rune duxerint concordanda c. And if this had been done at the request of all the Tenants in Capite as you suppose how come the Bishops Abbots and Priors who held also in Capite to be omitted and not mentioned in this Writ to have joyned in this request as well as the Earls Barons and great Men But as for the Doctors next precedent viz. a Writ to the Sheriff of Northumberland to return two Knights of the Shire and then the next day after other two for the same County I am not at all satisfied that those Writs were a Summons to a Parliament and not to a great Council for besides the Title of the Writ is de Militibus Eligendis Miâ—tendis ad Consilium and the words in the Writ are not the same with those which were commonly used in Writs of Summons to Parliament as I have already shewn ' you in this Writ of Summons we are now upon Whereas in the Summons to Parliaments of the 23d of this King the ordaining part doth as much refer to the Commons as to the Lords the Commune Consilium consisting of both whereas in these Writs you have cited they were to consent to such things which the Earls Barons and great Men should think fit to agree to but that I may shew you a little more plainly the absurdity of this fancy of your Doctors that these Knights of Shires were now Summoned the Parliament sitting pray let me ask you one or two Questions concerning this business pray who were these Gentlemen that the King you say thus Summoned to Parliament M. According to the Doctors account they must have been all Tenants iâ— Capite since he often tells us that out of these alone the Knights of Shires were chosen at the first F. Well but then who were these Magnates and Alii Proceres mentioned in the Statute of Westminster and in this Writ of the 18th of Edward I. M. I must own my self at a loss certainly to define who they were for if I say they were the smaller Tenants in Capite who are here put as a distinct order from the Comites Barones immediately foregoing I foresee you will ask me how these Gentlemen could be â—ummoned since all the Tenants in Capite were at this Parliament already therefore I must tell you I think there were only some of the greatest and wisest of the Tenants in Capite who were no Barons now Summoned and whom the Doctor tells us were often called to great Councils as Barons Peers and who though sometimes called to sit among the Lords were often again omitted in several Kings Reigns so that this Parliament was composed as those of Marlbridg and Gloucesâ—er not of all but only of the more discreet of these lesser Barons or Tenants in Capite F. If this be all you have to say to extricate your self out of this difficulty I think it will not amount to much for in the first place all you have here said is meer conjecture without any proof since this Statute of Westminster 3d. says only in general that it was made at the Instance of the Magnates under which Title your Doctor when he explains the Writ of Summons to the Arch. bishops of Canterbury tells us were frequently comprehended the Barones Majores the Earls and Barons as under Minores the lesser Tenants in Capite which when the Statute of Westmister the first was made he will have to be the whole Commonalty of the Land therein mentioned and why this Parliament of Westminster the 3 d. should not consist of the same Members now needs some better reasons than your bare affirmation to the contrary Besides this Prerogative of calling these Barons Peers to Parliament did not only extend to Tenants in Capite but to other Mesn Tenants also if the King thought them considerable enough for Estates or wisdom to do them that Honour and so was not confined to Summon none but Tenants in Capite who according to your Interpretation of K. Iohn's Charter had all a right to appear by General Wrâ—ts at the Common Council of the Kingdom but you may put what sense you please on these words Magnates Proceres yet I am sure your Doctor can take them in no other sense than for the Community of all the Tenants in Capite both great and small and so he tells us in his Glossary when he Comments upon the Writ of the 30 Edw. 1. which you now mentioned and which refers to this very Parliament of the 18 th when Forty Shillings was granted on every Knights Fee to Marry the Kings Daughter and there the Doctor immediately tells us that such as payed that Scutage were Tota Communitas Regni and no others and of these the Tenants in Capite granted and payed it first for themselves and Tenants c. and which must certainly relate to this very Parliament of the 18 Edw. 1. or none at all M. I confess I do not see how the Doctor can solve this difficulty but by denying what he has already said and affirming as I do now that all the lesser Tenants in Capite were not Summoned to this Parliament but only some of them at last ordered by this Writ to be chosen and returned by the Counties F. Yes he might do it if bare affirming were to pass for proof but I shall not give up my reason upon no better Grounds either to him or you not to mention the improbability of the thing that the King should be now over-perswaded by the Earls Barons and other Great Men to call these Knights of Sâ—ires which had been now omitted ever since the 49 Hen. 3. for above twenty yearâ— when he had no need at all of them but rather the contrary advantage of Governing without them since it is the Policy of Princes rather to diminish than increase the number of the Members of their great at well as private Councils who certainly are most easily managed when they are a few than a great many M. But what if we should go from the Doctors Position and say that perhaps these Knights were chosen out of the Mesn Tenants of the Tenants in Capite many of whom I grant might be considerable for Interest as well as prudence and with whom the King at their request might desire to treat of certain matters which had been before moved and propounded by him F. This is all that can be said and yet is much more unlikely then the other since to believe that the Earls Barons and Tenants in Capite should be now grown so weary of their Power of imposing Taxes and making Lawâ— for the
appears by the Title to the Latin Customs of Normandy which are at the End of the Old French Edition of the Constumiers de Normandy Printed at Râ—aâ— 1515. The Title of which is thuâ— Iura Consuetudines Ducatus Noâ—maniae The Prologue to which begins thus Quoniam Leges Instituta quae Normanorum Principes non sint magna provisionis Industria Praelatorum Comitum Baronum nec non Caeterorum virorum prudentum consilio Assensu ad salutem humani foederis Statuerunt Whereby it is apparent that the Antient Laws of Normandy were made by the Advice and Consent of the Estates for the Preservation of that humane Covenant they had formerly made with their first Duke Rollo when he had that Dutchy granted him by the King of France and whoever will consult the antient Histories and Laws of that Dutchy will find theâ—â— Dukes of Normandy no more absolute Monarchs there than the Kings of Norway from whence they came so that if their Duke should have gone about to take away their Estates or inslave the Persons of the Norman Nobility and People he might justly have been resisted by them and therefore their taking Lands from K. William after his pretended Conquest here must either have conferred an Estate upon them according to the Laws of England or Normandy not according to the former for you assert that Tenures in Capite and Knight's service were generally introduced by his coming so that if they were by the Normans Law as you suppose they were then no farther subjects to their Duke by that Tenure when made King of England than they were whilst he was Duke of Normandy viz. only according to the Laws and Customs by which they held these Estates so that if their Duke was not irresistible by them in case of Tyranny in his own Country so he was also here by the same reason since whatever he did in respect of the English he could acquire no new right over them And that an Oath of Homage alone doth not make the Person to whom it is taken irresistible if he makes an unjust War upon his Vassals appears by the Dukes of Normandy themselves who tho' they held that Dutchy by Homage to the King of France and took the same Oath to him upon every Kings Accession to the Crown of being his Liegeman and to be True and Faithful to his Lord the King of France for the said Dutchy of Normandy yet might the Dukes of Normandy without any Imputation of Rebellion have resisted the King of France in case he made an unjust War upon them nor were ever the Dukes of Normandy accused of Rebellion for so doing in all the Wars that they had with the Kings of France And therefore the holding of an Estate by Homage doth not suppose that the Lord of whom it is held was irresistible nor doth the word of Allegiance signifie any more than that duty which the Liegemen by the Old Norman Law owed to their Supream Lord of whom they held their Lands and therefore when the King or Supream Lord of the Fee did not perform his part of the Contract but went about to turn them out of their Estates or to invade any of their just rights by force it was usual for the Tenants to defie the Lords and renounce their Homage to them for which they used the Barbarous Latin word diffidare in French to defie that is to renounce that Faith and Allegiance which before they owed them and the supream Lords also oftentimes defied their Tenants thus Mat. Paris tells in Anno 1233. that K. Henry the Third by the Counsel of the Bishop of Winchester defied Richard the Earl Mareschal and the year following we find the Earl justifying himself in this manner being then in Ireland First I answer that I never acted Treasonably against the King for he has unjustly spoil'd me of my Office of Mareschal without the Judgment of my Peers and has Proclaim'd me banisht thorough all England he has burnt my Houses destroyed my Lands c. he has more than once defied me when I was always ready to stand to the Judgment of my Peers from which time said he I ceased to be the Kings Liegeman and was absolved from his Homage not by my self but by him and whereas you say that tho' the King or Supream Lord cannot forfeit his Right tho' he breaks his part of the Compact because of the inequality which there is between a King and a Subject then this Prerogative of Non-resistance doth not belong to the King as he is Supream Lord of the Land but as he is King and giveth Law to the Subjects which may have some colour of Truth in Absolute Monarchies but was of no Force either in the Government of Normandy or England where the Duke or King without the consent of his Estates never could alone make Laws but as I will not deny our Government to be a Monarchy so it is as certain that it is limited in the very constitution either by the Saxons or Normans begin where you please and therefore my conclusion still holds good that if the English have now succeeded to those very Lands and Priviledges which the Normans anciently enjoyed then whatsoever Right or Liberty the English Proprietors of Estates do at this day enjoy they do not only hold them as the Successors and Descendants of those Normans and Frenchmen but are also restored to them Iure postliminii as you Civilians Term it since they never submitted themselves or took an Oath of Allegiance to King William and his heirs but only to himself Personally there being no such clause in any Oath of Allegiance till it was so ordained many ages after in the Reign of K. Henry the fourth nor was this Oath ever taken by our English Ancestors to K. William as to a Conqueror but the lawful Successor of K. Edward the Confessor and K. Williams actual taking away the Estates of a great many of the English Nobility and Gentry contrary to his own Oath and without any just oâ—use could no more give him a right so to do than if Henry the fourth or Henry the seventh both which came to the Crown by the assistance of a Foreign force should upon a pretence of being Conquerors have govern'd by an Army and so have taken away whose Estate they pleased and given them to their followers that came over with them M. I shall not dispute this matter with you any further therefore pray proceed to the other Point you took upon you to prove that King William did not take away so great a share of the Lands of England as the Dr. and those of our Opinion affirm F. I shall observe your commands and therefore in the first place I desire you to take notice that according to the Doctors own shewing your Conqueror never took away the Lands of all the Bishops and Abbots of England much less those that belonged to Deans and Chapters or
to private Churches and if his Nobles or Followers had unjustly dissieâ—ed any Bishop or Abbot of their Estates the King caused them to be restored again as appears by many Presidents of this kind which are to be found in Ingulphus and Eadmerus this being premised let us see in the next place what proportion the Lands belonging to the Church did in those days bear to the rest of the Lands in England now we find in Sprot's Chronicle as also from the old Legierbook cited by Mr. Selden in his Titles of Honour and particularly from that Secretum Abbotis formerly belonging to the Abby of Glassenbury and now in the Library of the University of Oxon that there were not long after your Conquest 60215 Knights fees in England of which the Bishops Abbots and other Church-men then enjoyed 28015. When it is supposed this account was taken then it will follow that in the Reign of your Conqueror there were above 28000 Knights Fees which belonged to the Church and in these we do not any where find that K. William dispossessed their Tenants of their Estates most of which were held in Fee under them and those Tenants were great and powerful men in their Countries and hence we read in the ancient Records and Legier Books of the Barons and Knights that held of divers Bishops and great Abbots several examples which you will find in Sir Henry Spellman Title Baro now it is certain that King William could not turn all these men out of their Estates and give them to his followers without committing sacriledge and invading the Rights of the Church which that King durst not commonly do so that the utmost that you can suppose he could do was to take the forfeitures of all such Tenants of the Church who had taken part with King Harold or had any ways committed Treason against himself which were far from the whole number of them so that here goes off at once almost a half of all the Lands held by Knights service which the King did never dispossess the ancient owners of to these may be also added all Tenants in ancient Demesne all Tenants in Socage as also all Tenants in Gavel kind which in those days made at least two thirds of the Lands of Kent which by the way was never conquer'd but surrender'd upon Terms to â—are their ancient Customs and Tenures as Mr. Cambden himself acknowledges in his description of this County besides what was held in other Counties by the same Tenure as you will find in Mr. Taylor 's History of Gavel kind all which being not Tenures in chief by Knights Service are not Register'd in Domesday book nor does it appear that the owners were ever dispossessed of them to which may also be added the Lands of those smaller Thanes or Officers of King Edward whose names are found in Domesday book who held their Lands ratione officii To all these we may also add all such Norman Noblemen and Gentlemen who having come into England in Edward the Confessors time and having Honours and Lands given them by him had continued here ever since and these were so numerous that it was thought worth while by King William to make a particular Law concerning them that they should partake of all the Customs the Rights and Priviledges of Native Englishmen and pay Scot and Lot as they did of these was the Earl of Moâ—ton besides many others whose names appear in Doomesday book and not only these men but also divers Cities and Towns held Lands of King William by the same Rents and Services as they had formerly paid in the time of King Edward the Confessor as Oxford for example But to give an answer to some of your instances as when you say that King William gave away whole Counties as all Cheshire to Hugh Lupus and the greatest part of Shropshire to Roger de Montgomery c. It is a great error to suppose that these Earls had all the Lands mentioned in these Counties to dispose of at their Pleasure and that they turned out all the Old Propâ—ietors which it is certain they did not as I could prove to you by several instances of Antient English Families who have held their Lands and enjoyed the same seats they had in the Conquerors time so that you see there is a great deal of difference between a grant of all the Land of a County and that of the whole County what is meant by the former is plain but as for the latter it generally implies not any thing more than the Government of that County Thus whereas your Dr. would have it that the greatest part of Shropshire was given to Roger de Montgomery Doomesday says only that he had the City of Shrewsbury totum Comitatum and the whole County But that is soon explained by what follows totum Dominum quod Rex ipse tenebat where it is plain that by Dominium is meant no more than that power to govern it which King Edward had for otherwise the Grant of totum Comitatum had been sufficient M. I confess this is more than I ever heard or considered before concerning this matter but you do not give me any positive proof that at the time when Doomes day Book was made there were any Englishmen who held Earldoms or Baronies or other great Estates of the King or any of his great Men so that what you have said hitherto tho' it carry a great shew of probability yet is no positive proof against the Doctors assertion F. I shall not go about to deny what William of Malmesbury and Henry of Huntington so positively affirm that for sometime before the end of King William's Reign there was no Englishman a Bishop Abbot or Earl in England yet does it not therefore follow that it was thus thorough his whole Reign or if it were so that it will therefore follows that there were few Englishmen who when Domesday Book was made possessed any Lands in England but that in part of King William's Reign there were many English Earls and Barons appears by above a dozen Charters cited by Sir William Dugdale in the Saxon and Latin Tongues in his Monast. Anglic. which are either directed by K. William to all his Earls and Thains or else in Latin Omnibus Baronibus Francigenis Anglis or else Omnibus Baronibus Fidelibus suis Francis Anglis salutem the like Charters also appear of Henry J. and the Empress Maud his Daughter so that if Francigena and Francus signifie a Frenchman and Anglus and Englishman and if Fidelis does as your Dr. would have it signifie a Tenant in Capite then I think nothing is plainer than that there were for great part of King William's Reign both Earls Barons and Tenants in Capite of English Extraction But to come to particular persons it will appear by the Saxon or English names in Doomesday book as also by several recitals therein that there were divers English
English and if it were so in this cause it will follow for the same reason in all other Counties all over England Lastly That these Gentlemen were well skilled in the Antient Laws and Customs of England which had been in vain if they had been altered as you suppose M. I will not deny but that in the beginning of the Conquerors Reign many Englishmen might have Estates left them which might not be taken away till some years after and Mr. Selden in his Titles of honour places this Tryal between Earl Odo and Arch-bishop Lanfranc about the first year of K. William and I suppose that it happened before the fifth year of his Reign when Matthew Paris tells us that the Earls Eadwin Morcar and Siward together with Egelwin Bishop of Durham as also many thousands of Clerks and Laicks not being able to bear the severity of K. William fled into Woody and Desart places and from thence got into the Isle of Ely where they fortified themselves and whither K. William followed them and taking the Island made them submit to mercy and then this Author tells us that the K. put the Bishop of Durham in Prison and as for the rest some of them he killed some he put to ransom and others he commited to perpetual imprisonment so that I reckon from this time the King took away most of the Englishmens Estates as not trusting them any more F. If this had all happened as you have put it yet would it not prove what you have maintained for if those Englishmem who had not been engaged with Harold or else had been pardoned for it still held their Estates and as you say they forfeited them afterwards for Rebellion then it is certain K. William did not proceed against the English as a Conqueror since if he had he would have taken away their Estates Iure belli which since as you your self confess he did not whatever Estates he took away afterwards was either for Treason committed by the English or else wrongfully if the former he did it as a lawful King if wrongfully then as a Tyrant and as such could obtain no just right against the English Nation by his unjust proceedings But indeed after all you are quite out in your account concerning this matter for as to the great Tryal you now mentioned it could not be in the first or second year of King William's Reign nor could happen sooner than the sixth or seventh of his Reign for Arch-bishop Stigand was not deposed till the year 1070. which was the Fourth year of K. William and in the next year being 1071. the Annals of Mailros as also the Chronicle of Thomas Wiks place Archbishop Lanfranc's Coâ—secration and fetching of his Pall from Rome so that it could not be until the year after this Rebellion at the soonest when Lanfranc was setled in his Bishoprick that this suit was commenced by him against Earl Odo and therefore a great many of the English Nobility and Gentry had still Estates let them after this Rebellion And that they continued to have so some years after this time appears by those Writs of K. William which Mr. Atwood hath given us in his Ianus Aâ—glorum c. concerning the restitution of the Lands belonging to the Church of Ely which are also transcribed and allowed by your Dr. in his answer to it and I desire you particularly to consider that writ of K. William's directed to Arch-bishop Lanfranc Roger E. of Morton and Ieoffery Bishop of Constance commanding them to cause to be assembled all those shires who were present at the Plea had concerning the Lands of the Church of Ely before the Queen went last into Normandy the rest being most material to the cause in hand I shall give you in Latin Cum quibus â—tiam sinc de Baronibus mâ—is qui competenter adesse potâ—â—unt praedicto placito intersuerunt qui terâ—â—s ejusdem Ecclesiae tenent Quibus in â—num congragatis eligantur plures de illis Angliâ— quisciunt quo modo terrae jacebant praefatae Ecclesiae die qua Rex Edwardus obiit quod inde dixerint ibidem jurando testentur From whence we may also gather that this Tryal concerning the Lands which is here ordered was to be in like maâ—ner and by a Jury of the same sort of Englishmen who tryed the cause between Earl Odâ— and Arch bishop Lanfranc that is they were English Gentlemen of sufficient Estates or Tenants in Capite if you please Now. let us look into the time when this happened since the Writ doth not tell us when it was only that it refers to a Plea held concerning the Church of ELy before the Queens last going into Normandy so that this tryal here mentioned could not happen till after the fourteenth year of K. William's Reign which I prove thus this Queen did not come over into England till the year 1068. when the King returned with his Queen out of Normandy after his Coronation at which she was not present after which K. William went not into Normandy till the seventh year of his Reign when he went over and took Mans and then whether he carried the Queen with him is uncertain but the Annals of Waverly tells us he went over again the next year and then he might carry the Queen with him which might be the first time she returned into Normandy but it appears by the same Annals that the King went over the year after and staying but a little while returned into Normandy to fight against his Rebellious Son Prince Robert where staying not long he returned as soon as he had driven his Son out of Normandy nor do we find he went over again till the 14 year of his Reign being the year 1080. and then I suppose since he stayed there for some time he carried the Queen with him and to this last going over I suppose this Writ we have cited refers for tho' the Queen went over again after this yet she returned no more because she died in Normandy in the year 1083. as Iogulph who was then alive relates the use I make of these particulars is this that long after the time you suppose the English to have lost all their Estates we here find a great Jury of Englishmen summoned out of several shires in England to try this great Cause concerning the Lands which the Church of Ely had been unjustly Disseised of so that here you see after the fourteenth year of this King the English still continued to keep their Estates and to serve upon Juries and consequently the Pleadings before them as well as their Verdict must have been in English M. I shall not insist upon this point any farther yet this much you cannot deny but that all the Pleadings and Proceedings at Wâ—stminster as also the old Law books were all in French as appears by the Mirror of Justices Britton not to mention those of latter days as Littleton's Tenures and others and so were
ever they think they may now certainly it were very well to be rid of such false Friends if it were possible to discover them by such an Oath then to keep them where they are only to take an opportunity not only of doing a Mischief but of serving this Government very carelessly and lukewarmly whilst they are in those places they enjoy as also of favouring and assisting those that are the declare Asserters of King Iames's Right as far as they dare so that then all the dispute remains about those who having Consciences large enough to swallow any Oath whatever provided it will suit with their present advantage no Oath can tye them or serve to discover their private Sentiments as I cannot deny but that there too many Men of such large Consciences as you describe and could heartily wish they were fewer yet though I grant an Oath alone will not keep them out yet it might be in great part prevented if the King would take a true Character of the Men fit for publick Imployment from those about him of whose Worth and former Intergity he is already fully satisfied but admitting some such Men shall get into Places and consequently when they are in manage things for their own Advantage that is Vilely and Corruptly yet even these will not prove half so fatal to the Government as those Men of half Consciences who think they may take this Oath in their Own Sense and for their own present Advantage and also believe it no Breach of it to assist King Iames whenever safely they may because they hold their present Oath to be only Temporary but their former to have a perpetual Obligation upon them Whereas those of no Principles at all never Espouse any Interest longer then it serves their own turns so that as long as they can make their Fortunes under this Government they will never desire to change it for another in which they cannot but expect a much less free enjoyment of their Liberties and Properties which are things that all Men as well those who have no Principles as well as those that have desire to to enjoy And lastly some even of these Men that have been formerly notorious Asserters of and advanced in the Arbitrary Government of King Iames out of shame and as well as fear of the loss of their Credits with those of their own Party which they are not assur'd but may again prevail will stick to take this stricter Oath though they do not this that is now enjoyned since they can find an Evasion for the one but will scarce be able to do it for the other M. But pray tell me will not this new Oath declaring King William and Queen Mary to be Lawfull and Rightfull King and Queen of this Realm and that all Men that take it shall assist them against all their Enemies prove an implyed Oath of Abjuration of King Iames though not in express Words and you have not yet shewed me that such an Oath hath ever been Administred during all the various Contests that have been for the Crown since the Conquest F. I grant that such an Oath would be a Vertual and implied Abjuration of King Iames's present claim to the Crown and would also oblige all Persons to fight against him and hinder his regaining itâ— which though I grant to be the design of it Yet would not such an Oath oblige us at all to abjure the obeying King Iames should he ever by an irrestible Providence be again set over us since it is not abjuring of a Future but a present right which I now contend for and that all the Antient Oath of Fidelity or Allegiance as it is now called were of the like Nature and taken in the same Sence with this I propose I shall shew you from the form of the Oath of Fidelity which all Freemen were to take at Fourteen Years of Age as appears by King William the Firsts Law which I have so often cited Whereby all Freemen were to affirm upon Oath that within the Realm and without they will be True and Faithfull to King William their Lord and preserve his Lands and Honour with all Fidelity together with his Person and defend them against all his Enemies So likewise in the ancient Oath of Homage which was taken by all the Earls Barons and Tenants in Capite in England at the Coronation of our Kings It was in these words I N. N. become your Leigeman of Life and Limb and earthly Honour and Faith and Troth to you shall bear to live and die so help me God and in the latter Oath of Fidelity or Allegiance which Sir H. Spelman gives us out of the Customary of Normandy the words were much the same only the person is there sworn to be True and Faithful in the King and his Heirs which they were not before Edward the Firsts time And also what they would hear of no Evil or Damage against them which they would not hinder to their Power now pray tell me were not all these Oaths taken to the King for the time being as Lawfull and Rightfull King and since they were thereby to yield him Life and Limb that is were to defend him with their Lives against all his Enemies then certainly all others who might pretend to or claim the Crown were included within this number and though it is true in these ancient Oaths there is no Swearing to the present King as Lawfull and Rightfull King yet these words were needless in that Age when as I have proved at our last meeting there was no difference between a King de Iure and one de facto and whoever was crowned King and Elected or Recognized by the great Council of the Kingdom was looked upon as Lawfull and Rightfull King and as such was to be defended against all his Enemies so that it was till that distinction was broacht that there might be a King de de facto different from the King de jure which I have proved was not elder then Edward the IV ths Reign There was no need of any mention of such words in the Oath of Allegiance as lawfull King and lawfull Heirs which are first found in the Oaths of Allegiance and Supremacy prescribed by the Statutes of Queen Elizabeth and King Iames in the latter of which it is needless to recite it Verbatim it is first sworn That the King's Majesty is Lawfull and Rightfull King secondly There is an express abjuration of the pretended Authority of the Bishop of Rome which shews that the Abjuration of the Temporal as well as Spiritual Right of a Foreign Prince who claims it ever since King Iohns Resignation is no new invention and lastly there is an express abjuration or Engagement to defend the King's Person to the utmost of the Swearers Power against all Conspiracies at Attempts whatsoever and why the same words may not be inserted into this new Oath as well as it was in those I can see
E. I. ib. p. 554. Rot. cl 31. Ed. III. ib. p. 555. Rot. Pat. 54 H. III. ib. 573. Rot. Wal. 11. Ed. I. ib. 574.575 Rot. cl 28. E. I. Rot. Pat. 8. Ed. II. ib. 576. Rot. Pat. 52. H. III. ib. p. 578. Bundel Brev. 5. Ed. II. Rot. Pat. 40. Ed. III. ib. p. 581. Rot. Pat. 2. H. V. ib. p. 582. Placit Parl. 18. E. I. Rot. Parl. 18. Ed. III. ib. p. 584. inter Com. brev in Scac. 34. Ed. I. Prins Par Reg. p. 26.28.30 Ed. I. ib. p. 586. Parl. Reg. 8. Ed. II. 887. Rot. cl 15. E. II. Rot. cl 2. E. III. Rot. cl 50. E. III. p. 588. Rot. Pat. 42. E. III. p. 599. Rot. Pat. 17. Ed. III. Rot. Parl. 51. E. III. p. 605. A Regency W. legal or practicable in England upon King James's departure D. 12. p. 877. Religion in what Cases we are bound to suffer for it without any resistance D. 4. p. 222. to 235. The Remedies against Tyranny the People of England can have without Resistance considered D. 4. p. 262. to 664. Resistance of Fathers Husbands and Masters by their Wives Children and Servants W. ever lawful D. 1. p. 41. to 44. to 52.60 Resistance of the Supream Powers in what cases absolutely lawful D. 3. p. 146. to 149 D. 4. p. 270. In what cases absolutely unlawful D. 3. p. 176 177. All the evil Consequences of such Resistance considered D. 4. p. 261. to 264. D. 9. p. 649 659 to 666. W. All resistance be forbidden by God in the Old Testament D. 3. p. 190. to the end W. Forbidden by the word of God in the New Testament D. 4. p. 220. to 264. W. Contrary to the Doctrine of the Church of England Ib. p. 283. Resistance of the King and those in Commission by him W. absolutely â—orbid by the Statute of the seventh of Edward the First against bearing of Arms D. 8. p. 612. W. Contrary to the 25th of Edward the Third concerning Treasons Ib. to the end Resistance of Arbitrary Power in our Kings W. lawful both before and since the Conquest D. 9. p. 615 to 637. Such Resistance granted to be lawful by some of our Kings themselves D. 9. p. 617.620.622 Rights and Liberties of the Subject what they are D. 9. p. 666 to 669. Rolls Clause how many wanting in the Reigns of King John and Henry the Third D. 7. p. 517 518. S Sapientes its signification in Ancient Histories D. 6. p. 377. Late Schism upon the Deprivation of the Bishops W. justifiable D. 13. p. 963 to 966. Scotland W. it s ancient constitution were the same with England D. 7. p. 503. to 505. D. 8. p. 559. W. None but Tenants in Capite ever appeared at the Great Councils of the Kingdom Ib. to 510. Scutage Service W. different from a Scutage Tax D. 7. p. 439. to 440.479 to 481. Sermons for the Kings Absolute Power censured in Parliament D. 1. p. 5. Servants and Sons W. all one in the State of Nature D. 1. p. 54. Sheriffs Pardoned by Act of Parliament for holding above one year D. 12. p. 821. States General of the Vnited Provinces W. their making War upon King James the Second were justifiable D. 11. p. 781 782. Ancient Statutes W. the three Estates have not always given their Assent to them as well as the King D. 5. p. 330. to 348. Notwithstanding the different forms of Penning them Ibid. D. 7. p. 484 485.525.528 529. Statue of the Eleventh of Henry the Seventh Cap. 1. W. still in force D. 13. p. 909. to 933. Statute of the Thirteenth of Elizabeth Chap. 1. W. still in force D. 12. p. 894. to 898. All Statutes though made by Vsurpers W. they hold good till repeal'd D. 12. p. 909 911 912. Doctor Stories Case D. 13. p. 950. Subjects how different from Slaves D. 4. p. 251. to 261. W. Particular Subjects may resist the Supream Powers for satisfaction of their own private injuries D. 4. p. 252. Succession to Crowns no certain procepts to be found about it in Scripture or the Law of Nature D. 2. p. 89. to 90. Succession to the Crown of England W. always Hereditary since the Conquest without any vacancy of the Throne D. 12. p. 839 to 875. Sufferings of Christ how far an Example to us D. 4. p. 227. to 233. Suffering for Religion without Resistance when necessary Ib. p. 231. T Tenants in Capite W. they were all Barons D. 6. p. 399.400 W. They could anciently Tax the whole Kingdom at their pleasure as well the Lands held of them as what was not D. 7. 440.479 to 483.500 W. They or else Tenants by Knights service were anciently the only Persons who served upon Iuries D. 10. p. 741. to 746. W. They represented all their under Tenants in Parliament D. 7. p. 512. Tenants in Sâ—â—age W. they were bound by the Acts of those of whom they held their Estates D. 6. p. 420. Tenants in Demesne claimed to be discharged from the Knights Wages by prescription D. 8. p. 588 589. Tenure by Knights service W. in use before King Wil. I. D. 10. p. 750 751. A new Test Oath opposed by a great party of the Poeâ—s in the Reign of King Charles the Second D. 9. p. 659. Testaments W. valid in the meer State of Nature D. 2. p. 86 87 91. The several Texts of Scripture made use of for or against absolute Non-resistance examined viz. in the Old Testament D. 3. p. 190. to the end Texts of Scripture out of the New Testament urged for the like purpose D. 4. p. 220. to 279. Thanes the ancient signification of that Title discussed D. 6. p. 374. to 379. The divers sorts of them amongst the English Saxons D. 5. p. 370. Treason against the Kingdom anciently as well as against the King D. 5. p. 344. Trials by Combate W. in use before the Conquest D. 10. p. 758. Trust committed by the People to the Supream Powers W. unaccountable and irrevocable D. 3. p. 152.154 Insupportable Tyranny W. worse than the State of Nature Ib. 155. Tyrants W. Ordained of God D. 4. 245 246. U Vavasors or mesne Tenants W. anciently reckon'd as part of the Baronage of the Kingdom D. 6. p. 405 406. Universitas Baronagii Angliae Regni what it signified and W. the Commons were comprehended under that Title D. 6. p. 408 409 415 416. Universitas Communis the meaning of that Phrase in Matthew Paris D. 7. p. 470. W. It comprehended no more than the less Tenants in Capite Ib. 471. Primate Ushers Opinion in his Treatise of the Power of the Prince and Obedience of the Subject considered D. 4. p. 271 272. Vsurpers by Sir R. Filmers Principles to be obeyed before the Lawful Prince and his Heirs D. 2. p. 126 127. When Vsurpers may be obeyed before the Lawful Prince and his Heirs D. 4. p. 246. Usurpation W. it gives a rightful Title after three Generations D. 2. p. 128. Vulgus what that word signified in the
Heirs within age of such Tenants but this extended not to the Tenures of the Subjects by Knights Service as it appeareth by Bracton Dicitur Regale seâ—vitium quia spectat ad dominum Regem non alium secundum quod in Conquestis fuit adinventum c. Whereupon Sir E. C. notes in the Margent the Tenure as before it appeareth was not then invented but the fruits of this Tenure of the K. viz. Wardship and Marriage which was Bracton's meaning so as the Conqueror provided for himself but other Lords at the first by special reservation since the Conquest provided upon gifts of Lands for themselves Regis ad exemplum totuâ— componitur orbis wherein that which we had from the Conqueror we freely confess F. I shall not dispute his matter since it is doubtful whether this custom of Wardship was Norman or whether it was derived from the Saxons who possibly might have some respect to Orphans in such cases to train them up for the publick Service in point of War especially being possessors of a known right of Relief as well as Alfred the Saxon King did undertake the work for the training of some particular persons in learning for the service of the publick in time of Peace and Civil Government and tho' Sir H. Spelman is of opinion in his Title de Wardiâ— that Wardship of the Heir came in with the Conqueror yet Sir Iohn his son who was also a learned Antiquary in his Epilogue to his second book of K. Alfred's Life Printed at Oxford speaking of Military Fees granted to the Kings Thanes has this passage Haec etiam Fioda baeredibus sub Hereoti siâ—e relevaminis cujus piam quod haeres in terrae redemptionem Regi solvere tenebatur conditione plerumque transibat si haeres minor natu à Patre moriente relinquebatur Regi educatio â—jus utpoâ—â— Regis Hominis committebatur in utilitatem etiam commodum ipsius Regis But whether the Wardship of the Body of the Heir was in use in K. William's time or before is uncertain for the land is in the Charter of Henry the first in Mat. Paris granted either to the Widdow or next heir But let these customs be derived from whence you please it is a plain case it could be no badge of Conquest upon the People of this Nation and that by the Doctors own shewing for were it a Norman custom never so much if your Conqueror first of all imposed it upon those he brought over along with him it could never be a badge of Slavery upon the English Nation but rather upon the Normans upon whom it was chiefly imposed and if they afterwards granted Lands to the English upon the same terms they held them themselves they were no more Slaves to whom they were granted than they were under whom they held them but indeed this was so far from being looked upon as my badge of servitude that if the Dr. himself is to be believed these were the only Freemen and their services Bracton says were so notoriously free that in Writs of Right it was never mentioned because so well known Notandum in servitio Militari non dicitur per Liberum servitium ideo quod Constat Quia tale Servitium Liberum est And hower Rigorous the Feudal Law might be at the beginning it was when your Conqueror came in so far mitigated as to the rigour of it that the Tenants by Knight Service were not only free by K. William's Law from all Arbitrary Taxes and Tallies but also obtained a setled Inheritance to them and their Heirs as appears by that clause in K. William's Charter and therefore in the Reign of Henry the Third when William of Warren Earl of Surrey was questioned after the Statute of Quo Warranto by the Kings Justices by what Warrant he held his Lands pulling out an old Sword he answered to this Effect behold my Lords here is my warranty my Ancestors came into this Land with William the Bastard and obtained those Lands by the Sword and I am resolved with this Sword to defend them against any whosoever shall go about to dispossess me for the K. did not himself alone Conquer the Land but our Progenitors were sharers with him and assistants therein As for what you say That the Laws in the Customary of Normandy are the same with the Laws of England It is no more than what divers French Writers have taken notice of but do not attribute their agreement to their being borrowed from the Normans but quite contrary for in the first place most of the Learned Men say That the first establishing of the Customary of Normandy was in Henry the first 's time and afterwards again about the beginning of Edward the seconds time when Normandy was not under the King of England and Sâ—querius a French Author relates that K. Henry I established the English Laws in Normandy and with him do also agree Gulielmus Brito Rutilarius and other French Writers who mention also that the Laws in the Customary of Normandy are the same with the Laws collected by our English K. Edward the Confessor who was before the Conqueror an additional Testimony hereof is out of William de Reville de Alenson who in his Latin Comment upon the Customary proves and demonstrates that the Laws and Customs of Normandy came from the English Laws and Nation either not long before or after Edward the Confessor's time In the Customary there is a Chapter of Nampes or Distresses and it is there decreed that one should not bring his action upon any seisure but from the time of the Coronation of K. Richard and this must be our K. Richard the first because no K. of France was ever of that name and the words Nampes and Withernams were Saxon words taken out of the English Laws signifying a Pawn or Distress and in the same sense are used in the Customary But if you have nothing more to object against what I have now said pray proceed to your last head and let me see how you will prove that the English lost all their antient Liberties and Priviledges which they enjoyed under the English Saxon Kings M. I never heard so much before concerning the Original use of the French Tongue in our Reports and Law Books but yet this much I think you will not deny first that the Norman French was never used in our Courts of Justice till after the Conquerors entrance Secondly That he did his endeavour totally to root out the English Tongue by ordering of Children to learn the first rudiments of their Grammer in French and as for what you have said concerning the Customary of Normandy being especially as to Tenures derived from the English Laws and Customs I do not deny but that it may be the opinion of some French Writers that it was so but I shall believe it when they can prove that the Wardships and Marriage of the Heir of the