of the King I take leave to observe that the Right of Precedency from within the Reign of H. 3. nay though before the 49th is no way inconsistent with the Belief that many Lords who had Right till a Settlement then made were left out afterwards at the King's Pleasure that is had no special Summons yet tbey could not be denied their Right of being there in Representation Be it that the Heires of Bigod and himself Jan. Angl. faciâ—s nova p. 257. 262. were Tenants in chief which as I thought at least I shew'd formerly could not since the 49th have Right to come to Parliament quatenus Tenants in chief yet when any of the Heirs came upon particular Summons to Parliament that is 6 R. 2. cap. 4. All Singular Persons and Commonalties which shall from henceforth have the Summons of Parliament c. the King 's Calling them out as Singular Persons they were to come as Tenants in Capite in the manner as they be bounden and have been of old time accustomed And they that refused shouldbe amerc'd as is the Penalty By Manner is meant 1. in the same Quality Lords as Lords and 2. in that Degree of the same Quality which of old time had been accustomed 3. The Manner also implies the manner of enjoying any Power in Parliament Thus the Lords were of old accustomed to enjoy the ordinary Power in a Manner properly Judicial and that the supream Manner too Whereas the Commons had of that only what was needful to maintain their Priviledges as to the Legislature the Manner was the same Neither was above or could give Law to the other But in the judicial Power in Parliament the Commoners were no more to be joyned with the Lords than with the Tenants in Chief in the King 's ordinary Court out of it Vid. infra in the body of the Book p. since the same Curia Regis delegated from the Lords and answering to that which was pro more us'd to exercise that Power both in Parliament and out of it so that wherever they sate they were in the same Court The Commons could not exercise this Power with them out of Parliament therefore not in it Some will say that no more is intended by this Statute than that every one who receives Summons must come as was his Duty and had been of old Whereas 't is certain they who did not come as they were bound were amerceable before at the Common Law nor was it likely that the King wanted a Law to make good that Prerogative which to be sure he had over his Tenants by their very Tenures and could seize upon their Lands for Contempt of his lawful Power as the Bishops were sometimes threatned Vid. 4. â—ust Inde se capiet ad Baronias su 8. And this is enough against this Author since he makes the King's Tenants in Capite to have been all that came to Parliament even by Representation till the 8th of Hen. 6. Against Mr. Petyt p. 42. which 't is his setled Design to prove though sometimes he contradicts himself and yields that their Tenants by Knights Service came too Besides the genuine Import of the Manner leads me to this sense especially as 't is joyned with Bounden For he who was a Commmoner till the Summons was not bound to come as a Lord nay was not a Lord when he came As appears by the Writs to the Lords Assistants in the same Form with those which the Lords have So that the Statute in my sense is manifestly in Affirmance of the Common Law I shall lay at the Feet of the Lords my Sentiments in relation to their House either as I agree with or oppose one to whom that High Order probably will not think themselves much obliged I shake Hands with him Against Petyt p. 228. and agree that King Hen. 3. a little before his Death began to leave out such Earls and Barons as he pleased but I believe not this upon his Ground which is as if it were meerly from Royal Authority that is the Prerogative which that King had from of Old p. 229. without the Actual Consent of the People For I say 't was given him by Parliament Jâ—es Rep. f. 103. concernthe Earldom of Oxford Princes Case 8. Rep. either in the 48th or 49th Nor doth Rex statuit in the least discourage me in this Opinion being many Acts of Parliament have pass'd with the joint Authority of King Lords and Commons and yet the Enacting Part has had words of the same Import with this 2. I differ from my Opponent when he would have it believed p. 228. supra that Ed. 1. and his Successors observed this constantly or as he exprest the same thing before p. 227. The Practice was then and ever since accordingly And in this he has dealt as unfairly by Mr. Camden whom he quotes as I doubt not but 't will be found he has done by Mr. Petyt and me For Mr. Camden tells us That he has this out of an Author sufficiently Ancient and thinks not that he differs from the Authority which he receives when he says 'T was thus only donec till there was a setled Right And this he makes 11 R. 2. but this the Doctor vouchsafes not to take notice of But how cheap does he make his applauded Reasonings when he would prove it to be thus ever to this very time or the time of publishing his Libel because it was in the Reigns of Henry 3. Ed. 1. and his Successors to the time of that Old Authors Writing who if we credit Mr. Camden wrote before 11 Richard 2. of which he might be assured by the way of Writing in several Kings Reigns respectively to which Antiquaries are no Strangers or else by the Date annex'd in the same Hand But to prove that the Learned Clarenceux knew more of these things than this Pretender I shall shew that Rights were setled for coming to the House of Lords long since Against Mr. Petyt p. 175. But he will say possibly That he has anticipated and evaded my Proof as my Arguments upon the grand Question were in his Belief Against Jan. c. p. 47. by saying in one place Against Mr. Petyt p. 227. In those times probably the King might omit to summon whom he would I think he swarms with Contradictions as a Judgment upon his Vndertaking For he says That by what he calls the New Government 't was appointed and ordained ib. p. 110. not only that the Kings should call whom they pleased Which cannot properly be meant of Calling but once by Patent or Writ and the giving a Right from thenceforth to come afterwards because there was and is yet a new Call to every Lord for every distinct Parliament But he is express p. 227. That all those Earlâ— and Barons of the Kingdom of England to which the King thought fit to direct Writs of Summons should come
yields these Rights to be more than precarious For according to him the Tenents in Capite were the only Members of the Great Council before 49 H. 3. and if others were after 't was by Usurping upon the Rights of Tenents in Capite ib. p. 210. ib. 42. who and not others when the 〈◊〉 Government was set up How were Cities and Burroughs holding in Capite Represented according to this And how came they ever to be Represented began to be Represented by two Knights for every County out of their own number and they at first that is then Elected their own Representatives and yet these Tenents in Capite might be set aside if the King and his Council pleased nor was any power given to others to chuse till â—0 H. 6. c. 2. which gave no new power ib. p. 79. and the Lords depend upon the Kings pleasure ib. p. 42. Therefore what the design is ib. p. 227. 228. and at whose door the crime of it lies the thing it self speaks tho I should be silent But for fear he should seduce unwary Readers I must observe his Artifice in imposing upon them the belief that as it has ever since 49 H. 3. been at the Kings pleasure that any Lords came to the Great Council so the King could of right name to the Sheriff what Representatives for the Counties Against Mr. Petyt p 249. Cities and Burroughs he pleas'd as he observes in the Margent upon a Record 31 E. 3. but he is not so Candid to observe that though indeed at that time there was such a nomination yet that was noâ— to any Parliament or to make any new Law or lay any kind of Charge upon the Nation or particular men but was a Summons of a Council to advise how what was granted by full Parliament legally Summon'd might be best answered juxta intentionem concessionis praedictae and in such Cases the Judges only who are but Assistants in Parliament might well be consulted but pro magnis urgentibus negotiis as when King Charles the First called the Magnum Concilium or Great Council of Peers to York An. 164â— upon the Scotch Rebellion the King call'd more to Advise with and the Counsellors might well be of his own Choice 'T will be urg'd that when the King appointed but one for every County p. 242. 26 E. 3. they were impowr'd to consent to what de Communi Consilio contigerit ordinari p. 246. 27 E. 3. and that such a Council made Laws as the Statute of the Staple made the 21 of E. 3. to which the answer is very obvious that they made only Ordinances not Laws and that these were Magna Consilia taken in a sense totally different from the Generalia Concilia or Parliaments and all this appears above the power and subtilty of our learned Doctors Evasions in that the Record cited by himself in the 26 E. 3. calls the Assembly they are Summon'd to Concilium only and an Act of Parliament in the twenty eight of that King calls what was done in the twenty seven Ordinances 28 E. 3. c. 13. and that meeting a Great Council Magnum Concilium but such a Council it was and its Resolutions such meer Ordinances the distinction of which from Acts is well known that that very next Parliament finds it needful to confirm and give them the force of a Law Agreeably to this the Earl Marshal in that grand Case in the 3 H. 6. pleads that though a determination hadde be made against the said Earl Marshall in great Council Rot. Par. 3. H. 6. n. 12. though he hadde be of full age that might not disherit him without Authority of Parliament these are uncontrollable evidences and proofs against him let him to save the great Credit of his Learning answer them if he can But who is the new Government-Maker and new Parliament-Maker perhaps one might know from himself when he has considered a little better and then he may think the Government as 't is now establisht â—ighly concern'd in his Errors Perhaps 't will be said I injure this good man in imputing to him a design in relation to the present Government Since he owns that the most excellent great Council Against Mr. Petyt p. 229. and goes to prove it evidently from Records received its perfection from the Kings Authority and time But 't is obvious that its Perfection must be meant of such its Perfection as his Book allows and he would make evident but what is that That Lords should to the time of his excellent discoveries be Summon'd to Parliament ib. p. 227. 228. or past by at the Kings pleasure and that if the King pleas'd he might Summon one Knight for a County ib. p. 249. one Citizen for a City one Burgess for a Burgh and those nam'd to the Sheriff And this design will be very evident if we observe his aery ambuscade to return his own phrase and meer juggle in joyning the Kings Authority and time together we think we have something but by an Hocus Pocus Trick 't is gone for admit that its Perfection were such as we say it has at this day viz. for Lords to come of Right in their own Persons and that the Commons should send Representatives of their free Choice Yet let us see what setlement he gives this Great Council for which purpose we must divide the two Authorities which sometimes may differ And 1. Suppose that though time would preserve that power which the Great Council exercises a King would hereafter take it all to himself and make Laws by a Council of his own chusing or without any If the Doctor allows this power doubtless the next Parliament will thank him 2. Suppose that without or against the Kings Authority time only would establish this Great Council can this be done He that affirms it surely will be no great friend to Prerogative nor understands he that Maxim Nullum tempus occurrit Regi And one of these must be clos'd with 'T will be objected that I am as injurious to Prerogative in arguing that some Lords may have a Right of Prescription to come to the Upper-House But I think no sober man will deny that there is a right either from Writs alone or from Writs as prescribed to and 't is strange that it should not be against Prerogative to urge a right from one Royal Concession and yet it should be to urge it from many but farther if they who had no right to come in Person or be Represented in Parliament should by colour of Prescription put themselves upon the King for Counsellors this were derogatory to the Prerogative But if there be a natural right for Proprietors of Land with whom some say is the ballance of power within this Nation to be interested in the Legislature which I 〈◊〉 not affirm Or if there be such a positive right not only from the Laws for frequent Parliaments which suppose such to be Members as had been but more particularly from the Law received in the 4th of William the First Rex debet omnia rite facere in Regno per judicium procerum Regni and by positive Law or Custom the King us'd to send special Writs for some general for others the Prescribing to special Writs which is not of Substance as to the Legislative Interest is no diminution of Prerogative because no more in effect is out of the King than was before which is that this man should one way or other have a share in the Legislature If this Solution of mine will not pass I cannot help it I am sure the Law for a right grounded upon one or more Special Writs of Summons stands fast though the reason of it should be above my reach Having run through a Book so ill-natur'd to the Government and so impotent in its setled anger as that which some may think to have no other design Above all vid. Title page Against Mr. Petyt p. 81. than that of exposing Mr. Petyt and me the one for Artifice â—â—nhandsom dealing with and false application of Records c. the other amongst other things for Ignorance Confidence and Cheating his Readers I may hope notwithstanding the disparity of years and the dignity of his place to be very excusable in using our Answerer with no more respect When a man renders himself cheap by his folly and yet meers with many so weak that they are discipled by him to notions of dangerous and pernicious consequence to the State Ridentem dicere verum Quis vetat In summing up the Product of his many years labours which my Preface charges him with perhaps it may be thought that I omitted one considerable Head however I leave to others if they think fit to add for a seventh That both Lords and Commons may be depriv'd of all Shares or Votes in making of Laws for the Government of the Kingdom when ever any future King shall please to resume the Regality Some perhaps may add an eighth That the Parliaments are nothing but Magna Concilia such as are called only to Advise upon what shall be given in direction but no consent of theirs required to make the Kings determination a binding Law And Vice Versâ every Great Council such as that call'd to York 〈◊〉 1640. is a Parliament FINIS ERRATA PAge 12. l. 6. add Drs. before interdicts p. 15. in marg add p. 239. p. 16. l. 11. read vicinata p. 18. l. 10. r. 25. p. 28. l. 12. r. in Chief p. 39. l. 5. r. had p. 47. l. 21. r. induere l. 23. r. deposceret p. 82. in marg dele Shire after Cambridg p. 100. l. 17. r. Sharnborn p. 110. in marg towards the bottom add Domesday p. 124. l. 6. r. paragio p. 133. l. 24. add and according to their Chattels p. 139. add of before a title p. 151. l. 13. r. conticuissent p. 156. in marg r. Lords for Knights p. 163. l. 2. r. â—it l. 10. r. integra p. 201. l. 8. r. title In the Additions Page 8. l. 5. r. article p. 23. in marg Leges Sancti Ed. p. 25. l. 12. r. of King John's Charter viz. Tenants c. ib. l. 25. r. Nocton
Jus Anglorum ab Antiquo OR A CONFUTATION OF AN Impotent LIBEL Against the Government BY King Lords and Commons Under pretence of Answering Mr. PETYT and the Author of Jani Anglorum Facies Nova WITH A SPEECH according to the Answerer's Principles made for the PARLIAMENT at OXFORD Ne Sutor ultra crepidam LONDON Printed for Edward Berry in Holborn-Court in Grayes-Inn 1681. THE PREFACE THere was a Book lately publish'd against Mr. Petyt and my Self which not only treats us with Pedantick Scorn like those that are to Cap the Author within his Colledge but its seems to trample on the best Constitution our Government it self under Colour of its being New in the 49th of Hen. 3. Against Mr. Petyt p. 110. when it arose out of the indigested Matter of Tumults and Rebellion and so not having a Legitimate Birth as not born in Wedlock between the King and his People it may be turn'd out of Doors by the Help of that Maxim Quod initio non valet tractu temporis non convalescit How can a Bastard become a Mulier The Treatise which was to prove the Fact Against Jan. c. p. 1. Matter of Fact only was cried up for unanswerable and perhaps 't was imagined that there was no possibility left for a Reply since the Writer who has render'd himself famous in his Generation as if he knew better how to manage a Design than an Argument pass'd it about only to such Hands as were obliged by Promise if not by Principle to conceal it But Mr. Petyt and my Self having by Accident seen bis Book and observed some Heads which we intended to expose to the World At last out comes the happy Birth yet 't was hoped that by that time there might be Proselytes enough to defend it with Noise and Acclamations and Contempt of all Opposers Records Ancient Historians and our Ancient or Modern Lawyers Though generally in a Matter of Argument we ought to leave to the Reader the Censure of what we think we confute without remarking how absurd or criminal it is yet when such Reflections are almost the only Arguments on the other side and they when pronounc'd tanquamè Cathedrâ must have some Authority 't is fit that even these trifles should have their due provided they be answered with Decency of Expression And we know in what manner the Wise Man advises us to answer some People I should have been glad if this Author'â— Civility had obliged me to treat him at another Rate than I do since I delight not iâ— this way nor think thereby to please such Readers as I would court to be Judges between us But why should I Apologize for the managing of this Controversie in a way wholly New to me Since the severest Expressions are but retorted and transcrib'd from our Answerer's Original and indeed it may well be an Original for 't is without Example If in any thing I seem intemperate I may say with an Author well known Excess of Truth has made me so Our Author 's very Notions are Satyrs upon themselves nor can any thing more expose a Man than a seemingly Gigantick Endeavour to remove the fix'd Stars the Lords from the Firmament where each shines in his setled Station and to take from the Commons of England that Spot of Earth which they enjoy and tread on While the Sons of Titan lay Pelion upon Ossa one Mountainous Fiction upon another the Mountains have a quick Delivery and bring forth Confusion to the Giants What has been the Product of his many Years Labours I think may be shewn in Miniature under these Heads 1. That the Norman Prince against his reiterated Promises and against the great Obligation of Gratitude to those of the English who assisted him Against Mr. Petyt p. 29 30 31 32 33 34 35 so p. 176. took away all their Lands and Properties and left them no Right or Law 2. That from the Reputed Conquest and long before under the British and Saxon Governments to the 49th of Henry the Third None came to the Parliaments or great Councils of the Nation where Life and Fortune were disposed of but the King 's immediate Tenants in Chief ib. p. 39. by Knights Service 3. That even they came at the Discretion of the King and his Council ib. p. 79. 228. ever after the 49th 4. That the House of Commons began by Rebellion in that very year ib. p. 210. 228. 229. nay and the House of Lords too 5. That the Constitution of the Lord's House ib. p. 227. 228. 229. consists at this very day in the King 's calling or leaving out from special Summons to Parliament such Earls and Barons as he pleases 6. That by vertue of the New Law imposed upon the People p. 29. by the Conquerour p. 39. none within the Kingdom were Free-men or Legal men but Forreigners who came in with him being such as nam'd and chose Juries and serv'd on Juries themselves both in the County and Hundred Courts who were all Tenants in Military Service None surely but such as read without observing any thing whose Books can't beat into their dull Brains common Reason and who never were acquainted with that excellent Comentator'â— practise will think that I need set my self to argue against every one of these ' Tâ—â—ll be enough if under those Heads which I go upon to destroy his ill laid Foundations I prove them upon him for most of them confute themselves Truly I cannot but think Mr. Petyt and my self to have gone upon very good Grounds since they who oppose them are forc'd to substitute in their Rooms such pernicious ones as would render the Foundation both of Lords and Commons very tottering and unstable Not to mix Lords and Commons together I will endeavour to do right to the dignity of that Noble Order and their Interest in Parliament apart from the other The Constitution of the House of Lords our Antagonist as I shall shew will not allow to have been setled till after the time of E. 1. if it be yet Whereas for a short Answer to his new Conceit the Earl of Norfolk Rot. Parl. 3. H. 6. n. 12. p. 228. in the third of H. 6. lays his Claim to and has allowed him the same Seat in Parliament that Roger Bigod his Ancestor had in that great Court in the time of H. 3. And though on the side of the Earl of Warwick his Competitor 't is urged that the Earl of Warwick had the Precedency by King H. 4◠〈◊〉 Commandment 'T is answered Yat Commandement yave no Title ne chaungeth not the Enheritaunce of the Erle Mareschal but if or unless hit hadde be done by Auctorite of Parlement And if Precedency were a setled Inheritance which could not be alter'd but by Act of Parliament how can a fixt Right of coming to Parliament be taken away otherwise Though our Author supposes it to be at the meer Will and Pleasure
constantly was the Constitution of the House of Lords Having recited the words of Camden's Author he goes on Having had one great Antiquary's Opinion Against Mr. Petyt p. 228. joyned with matter of Fact upon the Constitution of the House of Lords let us see the Opinion of another concerning the Origin of the House of Commons so that the Constitution of the House of Lords answerâ— to or is in the same Sense with Origin in Relation to the Commons And the making this to have been the Constitution of the House of Lords and maintaineâ— in Practice ever since is as much as 〈◊〉 say the Rights of that Order of men aâ—â— not setled at this day for the despotic Power in this matter has been if we believe him constantly exercised and thaâ— of Right ever since the 49th of Henry the Third By the Constitution of the House 〈◊〉 Lords that which is the only thing possibâ—â— to be here implyed by the word is the Righâ— of the Lords to come as Lords and the beginning or first Establishment of it For the Constitution of an House separate from the Commons could not consist in the King 's leaving out or calling Lords at his Pleasure since such Arbitrary Procedure with them would only differ them in point of Interest from the Commons whom he pretends not to have been omitted at the King's Pleasure ever since the 49th of Henry the Third but he denies in effect that any Lord and by Consequence even enough to make an House or distinct Assembly of Lords in Parliament had or yet have any Right Thus against the Laws of Friendship he destroys the Successors of those Tenants in Capite whom he so dearly lov'd and cherish'd And it seems courted a great Asserter of the Rights of that High Order with a fawning Epistle that he might the more easily betray them all with a Kiss of the hand Vid. his Letter to the Earl of Shaftsbury and Your Lorships Most humble and obedient Servant â—nto a Belief that he could give all due Saâ—isfaction In the Charge which I have drawn up I have intended no Injury if the Consequences will not hold 't is from the Error of my Judgment not of my Will For my self admit what I am impeach'd of by him to be true yet being I argue that ever since the 48th or 49th of Hen. 3. no man had Right to come but as at this day If my Notion of what the Government was before be false 't will do no harm and I hope it cannot be affirmed with any Justice that I am a new Government Maker in relation to the present Frame yet I know that it has been whisper'd about as if I would have this Government to be new modell'd which I utterly abhor and that more than my Accusers the Ground of whose Accusations have been chiefly my devoting my self to the Service of the admirable Constitution by King Lords and Commons the Rights of the two last I have according to my Capacity defended being theâ— have been controverted But surely nâ— man dares be so presumptuous to set him self against God's Vicegerent by Divinâ— Appointment put over us and that 〈◊〉 our great Happiness in all matters or Caâ—ses There are several Interests in our mâ—serably divided Nation and wise men may be of each Party yet if any such should wish ill to our gracious Monarch or to Monarchy it self both his Wisdom and his Honesty were justly questionable What Alteration of Property the great Basis of a Nations Strength and Peace would be upon a new Model when Ambition an over-weening Opinion of a man's self Covetousness nay and Prodigality too would make many strive to be uppermost while they brought their poor Country under the greatest Slavery For my part I shall not scruple to deliver my self with the greatest Openness and Plainness of Heart The King is justly the Supream Head and Governour in all Causes Ecclesiastical as well as Civil Long may he enâ—oy this his undoubted Right Serus in coelum redeat Hor. Ode 2. diuque Laetus intersit populo precanti Neve se nostris vitiis iniquum Ocior Aura Tollat Long may he live and long in Peace command Monarch of Hearts as of his native Land Long be it e're the Angels nigh his Throne By mounting up with him leave us alone His Prerogative no man or body of men can take from him which his excellently devised Negative to all Petitions and Counsels secures And this makes it that the Sanction of all Laws is from the King only for what a man does by the Advice of Counsel he does by himself as much as a man acts freely in those very things in which there is the special Assistance of Grace and Conduct of Providence For fear I should not be clear enough in my Expreâ—sions though my Heart be clear in it I will make the learned Bishop Sanderson speak for me He says according to my real Sentiments Sanderson de obligaâ—ione Conscientiâ— Praelectio 7. p. 189. Cum dicimus penes unum Regem esse jus condendarum legum nonâ—id ita intelligendum quasi vellemus quicquid Regi libuerit jubere id continuò legis vim obtinere nam populi consensum aliquem requiri mox ostendam Quin hoc est quod volumus quod scilicet Plebiscita Senatus consulta caeteraeque Procerum plebis aliorumque quorumcunque rogationes nisi regia insuper authoritate muniantur non obligent subditos nec habeant vim Legis quibus tamen maturè ritè preparatis simul ac Regis accesserit authoritas legis nomen formam authoritatem protinus accipiunt incipiuntque statim ac promulgatae fuerint subditos obligare Cum igitur illa sola censenda sit cujusque rei causa efficiens principalis sufficiens quae per se immediatè producit in materiam preparatam introducit eam formam quae illi rei dat nomen esse etsi ad productionem ipsius effectûs alia etiam concurrere oporteat vel antecedere potius ut praevias dispositiones quò materia ad recipiendam formam ab agente intentam aptior reddatur omnino constat quotcunque demum ea sint quae ad legem rectè constituendam antecedenter requiruntur voluntatem tamen Principis ex cujus unius arbitratu jussione omnes legum rogationes aut ratae habeantur aut irritae esse solam adequatam publicarum legum efficientem causam Besides this I have in Sincerity subscribed to his Majesty's Power in Calling Proroguing and Dissolving of Parliaments and this were enough in relation to our present Controversie being only of Parliamentary matters But in short to offer at the Flower of all other Flowers of the Crown the King can neither do nor suffer wrong but like God Almighty dispenses his Blessings to the inferiour World while he sits above in an impeccable impassible immortal State God is not the Author of Evil nor can he suffer by
shew their Indignation at their own and their Teachers Credulity 'T would be Vanity in me to run the Parallel between our Author 's Magisteriaâ— Assertions and my Proofs but he glories much in taking all from the Fountain head of Original Records whilst I truly am thankful to those Friends that communicate to me Transcripts so faithful that even he himself cannot pick an Hole in any of them The Records of the Tower and of the Exchequer I gratefully acknowledgâ— to have been received from the beneficial Industry of my ever honoured Friend Mr. Petyt and the true Copies of Dooms-day Book are owing to the worthy Knight Sir John Trevor and to the learned Gentleman Mr. Paul Bowes of the Temple whose Father was Executor to the indefatigable Antìquary Sir Simon D'Ewes And surely no man need be ashamed of such Assistances Thus like the old Roman accus'd of â—nriching himself by ill means have I â—rought before my Judges the innocent Inâ—truments of my small Improvements Is â—here Witchcraft in any of these A CONFUTATION OF AN IMPOTENT LIBEL Against the Government By King Lords and Commons Under Pretence of Answering Mr. Petyt and the Author of Jani Anglorum facies nova Ne Sutor ultra crepidam The INTRODVCTION 'T IS doubtless a brave thing to attempt heroick Mischief to insult over the Ruines of a well framed Government at least though but in Appearance to venture upon the Design of altering it with Jesuitical Boldness how much soever is wanting of their Subtilty Fame is as careful to preserve the Memory of him that burnt as of him or them that built Diana's Temple nor is Mr. Petyt more likely to live in the Records of future Ages for giving new Life and Lustre to so many of the past than our State-Physitian for poysoning those sacred Fountains with his Exotick Drugs 'T is not to be doubted but late Posterity will admire the excellent Composition of that Clyster whereby he would purge the Body Politick from the Chronical Disease of Liberty and oppressing Load of Property Since he has thought fit to Out-Law all the English and to give them Lupina Capita put them out of all Protection and Security he must not look for much Respect towards his voracious Cubs which like the Cadmean Crue were born fighting with one another they would like Phoraoh's lean Kine devour the Fat of the Land and must needs require a great deal of Nourishment since they have so long been floating in his watry Brain without any substantial Food Indeed he himself in great Measure played the Executioner upon his own Follies and condemned them for some time to the dark being as he says in his Letter to a noble Peer Doubtful whether they should be published as is usually done by unlawful Births he endeavoured to stifle them but finding it not improbable that they might with Justice be represented as dangerous and monstrous he has let them live to his Reproach CHAP. I. That he mistakes the Question and contradicts himself to the yielding the whole Cause nor is a greater Friend to Parliaments than to common Sense IF notwithstanding all this huffing Author's mighty Bustle I evince 1. That he mistakes the Question 2. That he contradicts himself and that sometimes to the yielding up his Cause What will the World say of his Knight Erranty in Antiquities and noble Design to rescue the Virgin Truth from the enchanted Castle of groundless and designing Interpretations P. 1. Against Mr. Petyt for himself to deflour her I must be excused if some of his Contradictions are suffered to fall in here since I can hardly represent any Notion of his without them but I will keep all out from hence which relate not to his Mistake of the Question SECT 1. THE Controversie between us is of Right whether or no the Commons such as now are represented by Knights Citizens and Burgesses had Right to come to Parliament any way before the 49. of H. 3. except in the fancy'd way of being represented by such as they never chose Tenants in Capite by Military Service Mr. Petyt in my Judgment proves that Citizens and Burgesses had Right to come by Representation and I that Proprietors of Land as such had a Right to come in Person before that The Fact is used by both of us as a means to prove the Right Acts of Parliament as now called and King's Charters as of old are also insisted upon and even the Records and Histories produced to vouch the Fact are for the most part yielded us so that the Question upon positive Laws and upon Testimony is either whether Right can arise out of any Fact or else it is matter of Right and Reason what Sense ought to be put on the Words of the Witnesses to the Fact or any of them as is made out by an ordinary Instance Suppose a Witness in a Cause swears to a matter of Fact and his Credit is not denyed but the Question is in what Sense we ought to take his Words here Reason must determine the Fact by considering the Coherence of his Discourse and the several Circumstances which explain it And this we are taught His Glos. by our doubtful Oracle or rather by Apollo himself when 't is told us that the meaning of fideles c. is to be known from the subject matter yet Against Jan. Angl. facies noâ—a p. 1. for all this forsooth The Controversie is of matter of Fact only Indeed an Act of Parliament is matter of Fact if 't is disputed whether 't was made or no but if we argue that such or such is the Intendment of it we shan't try this by a Jury or any Judge of Fact And the Right which arises from thence is from the Meaning and the Reason of the Statute as well as from the Fact that it was made It will be said Why do you stand upon Niceties His meaning is no more than that he yields the Right if you prove the Fact But how can that be when he denies a Right even to his Favourites the Tenants in Capite though he supposes that de facto they came all along Tho they came before the 49 of Hen. 3. Yet the House of Lords and the whole Great Council was before that but an House of Lords was a new Constitution in the 49th of H. 3. and had it's Origine from that King's Authority Against Mr. Petyt p. 228. 229. p. 110. then a new Government And after that though de facto Lords came as Lords yet ever since the 49. H. 3. it was not out of Right for 't was at the King's Pleasure and so 't was with contracted Bodies of Tenants in Capite who prescribed to a Right from before the 49 and if they came were Lords for you must know no Commons then were ever at the Council But the King and his Privy Council might give them a present Right if they pleased or with-hold from any the Writ
〈◊〉 la Benche Hugo D'aule junior 〈◊〉 centur tum vocentur audiantur ibidenâ— But to Partiality Against Mr. Petyt p. 79. hence 't is clear 〈◊〉 King and his Council were equally Judgeâ— when it was necessary to call them and 〈◊〉 them to come as they were of their Right and Pretences to come The King being sole and absolute â—udge of the Necessity of calling Parliaments he makes the Calling such as â—ould prove their Right according to â—aw to come as often as his Majesty â—all please to call a Parliament to be â—s much at the Disposal of the King as what is his undoubted Prerogative or â—lse he denies the King's Prerogative â—o call Parliaments at his Pleasure if he â—o not contend that he may leave out â—â—ose who had with him the greatest â—ight Tenants in Capite from the Parlâ—amentary Summons And this being â—rescribed to from before the 49. of â—en 3. between which time and the 6. of King John there was no Alteraâ—on in the Way or Right of coming to â—arliament How can he free himself â—â—om contradicting that Way and Manâ—er which he says was setled then If to evade it he say Though 't is a â—ight according to the common Rules 〈◊〉 Law yet 't is supersedable by Preroâ—tive I suppose my Superiours will give 〈◊〉 an Answer if upon this Account it â—ill be no Contradiction however â—e have enough to make us laugh while at other Particulars And thus has our Author like another Don Quixot encountring the Windmils been miserably mawld with hiâ— own Whymsies returning too quick upon him nor can Sancho Pancho hiâ— Squire afford him any great Assistanceâ— by curing some literal Mistakes The Bookseller to the Reader which are but outward Scratches while the inward Bruises remain CHAP. II. Of the Reputed Conquest SECT 1. HIS Notions of the Conquest whether more absurd or false I cannot say fall now under Consideration buâ— good man Against Mr. Petyt p. 43. fearing least that might 〈◊〉 too far improved he says this doth noâ— directly reach the Controversie between us Indeed if it were only about thâ— Members of the great Council before thâ— time for he takes in all the time before as far back as Mr. Petyt whom 〈◊〉 laughs at for it I will grant that thâ— were not to the purpose But what account can be given why the Folck-mote â—held at one certain time in the year when all the Bishops in the Kingdom were to meet together about the great Affairs of the Kingdom with all that â—ad any Property such as were to find Arms according to their real or personal Estate should of a sudden without a Conquest be turn'd into an Assembly of â—he King's Tenants upon the old legal Title I cannot comprehend If William the First divided all the â—ands of the whole Kingdom then 't is â—ot probable that others than they who derived from under him should have had any share in the Government But if he did not thus act like a Conâ—erour how is it to be imagined that 〈◊〉 old Socagers had nothing to do in â—he Great Councils Nay upon another account this is â—eedful to be considered for as a Conâ—uerour p. 39. we are told he made all the â—ree-men of his Kingdom Tenants in Military Service But if he was no Conâ—uerour in this Sense insisted on then â—ere must be a vast number of Proprieâ—â—rs that could not be any way bound but by their own free Act or Consent express or naturally implyed in yielding to be represented SECT 2. That he is so far proving the Title of William the first by Conquest that he makes him an Usurper all along proved by the History of the Conquest compared with what he says about the Titles of William 2. and Hen. 1. I would fain ask a serious Question or two about this same Conquest Had not William many Sharers in his Victories And can Mr. Dr. with all his Art and the Help of the Tutelary of a certain Profession Madam Cellier discover at the Birth which came from Conquering which from Vanquish'd Ancestors I 'll take it for granted King William conquer'd not all alone Sampson himselâ— could not have done it even with his wonder-working Jaw-bone But pray Mr. Dr. spare me another civil Question Do not you your selâ— make an Vsurper of your mighty Conquerour who swallowed all the Land of the Nation or devoured it between him and his Myrmidons You p. 35. in effect yield that his Title was by Election by reason of the Factions amongst the Saxon and Danish Nobility and People the Pope's Encouragement and siding with William and the Inclinableness of the Clergy to his Cause You might have added that before his Entrance many Normans were setled here in Power and Property It being thus William the Second who you say p. 51. had a Title by his own Sword and was chiefly assisted by the English p. 54. and Henry the First who cajold the great men and the Army had the same kind of Title with your mighty one Nor is there weight in the Objection that there was so small time between the Death of one and crowning another King p. 60. that it was not possible for the Clergy or all the People of England or any that represented the People of England to be at the Consecrations and Coronations Because whoever has had the Crown set on his Head by them that could meet upon the Occasion unless there had been a very powerful Interest or Faction against him has generally been owned for King and had a tacit universal Consent Besides all the Nation was not present when William the first was crowned any more than they were when he gain'd the Victory over Harold and therefore if these two Coronations are set aside as factious so many the other and so it must be For An Election is or ought to be Against Mr. Petyt p. 51. a free solemn deliberate sober sedate and the Lord knows what Act of the whole People where they have a Right whereby the major part of them do choose this or that Person or Thing for such or such Ends and Purposes and not an undermining crafty cheating and forcible Act of a Party or Faction for the setting up this or that Person or using this or that means for the obtaining their own Designs and Purposes Let him I say consider and make a difference between these two Acts of the whole People and a Faction and he may easily make a true Judgment of all the pretended Elections of our English Usurpers and all other Traitors whatever How easily may this Rule be applyed to the first William Against Mr. Petyt p. 35. whose Success was facilitated by the Factions among the Saxon and Danish Nobility and People as our Opponent confesses besides the Faction raised by the Pope for him and by his own Country-men who were here before and could not but be very busie for him if he
he was Leige-man to and received Laws from the French Monarch Though the Crown of England has always been imperial subject to none upon Earth yet he that wore it unless he were so free that he could go with his Land Potuit ire cum terrâ quo voluit whither he would which to be sure is inconsistent with this Feudal Law he could not quit his Dependance SECT 4. The Notion of the Feudal Right considered and the Right of Tenants in free and common Socage to come in theâ—â— own Persons to the great Councils shewn from thence BUT since the mention of Jus feodale as advanc'd in the second part of the Glos. ascribed to Sir H. Spelman occasions a little Consideration of the Feudal Law I out of a Zeal to clear his Reputation from the Charge of things false or frivolous and having at present no other Authority for his being the Author of it than ones who has an excellent Faculty of Storying except against what is there said to be ex ipso jure feodali as none of his 'T is there taken for granted to be the very Right of Feuds deriv'd from the Feudal Law that the Superiour Lord of the Feud should give Law jus dicere to them that are under him and 't is evident this is not meant of an ordinary Jurisdiction because by virtue of this 't is fancy'd that the Lords represented their Tenants in the Extraordinary at the great Councils and by the same reason the Assertion of a Judge censur'd in Parliament is justifiable viz. That the King is the only Representative But I must observe that this must be from Either 1. The general Law which guides the Feuds in all places where Feudal Law is received Or 2. The particular Feudal Law of England 1. Our Author evidently takes this in the first Sense being to prove what was the Feudal Law here New Glos p. 4. he cites the foreign Feudists who acquaint us with the Law of Feuds amongst them but this first Sense is not supposable in that this Law upon that account would be as much the Law of Nations as the Law for the Advantage of Embassadors wherever they come And this could not generally prevail but from the Authority of Catholick Reason that should require it but that I do not find since the Lord may have the Vtile Dominium which the Feudists speak of as incident to Feuds without the despotick Power and the end or nature of them being answer'd from whence will the Argument be brought that it ought to be so I will grant that it is not a Feud unless there be Utile Dominium for that distinguishes it from an Alodium which sometimes may yield no profit to any Superiour But those who well knew the Nature of Feuds teach us that 't was the Infancy of Feuds when they wholly depended on the Lord and could not stand without being supported by his pleasure then indeed which was before Feuds were spread into many Nations cragius de Feudis fol. 20. Nec servientibus aliud jus erat in his proediis quam precarium quod qui habet non tam diu quam ipse vult sed quamdiu is qui concedit patitur eo frui This indeed agrees with that Law which is supposed to have obtained even till the 49 H. 3. Whereas from hence Feudal Tenure advanc'd to an Estate for Life Solet usus fructus constitui in personam tantum Cujacius de feudis Tom. 4. fo 464. and all this before the year 650 from which time to Charles the Great who began to reign in the Year 800 unless one were particularly assigned by the Gift the Lands descended Craglus fol. 21. by right of Inheritance to all the Sons It s state of Maturity was when it descended to one but still there was an Inheritance by the Law of Feuds before the time of William the First and above 450 years before the 49th of H. 3. And I would rather believe Cujacius for the Jus Feodale or the Nature of it than what we find under the Title Parliament in the Glossary Cujacius defines a Feud Cujacius de feudis fo 464. Tom. 4. Jus praedio alieno in perpetuum utendi fruendi quod pro beneficio Dominus dat eâ lege ut qui accipit sibi fidem militiae munus aliudve servitium exhibeat An Usufructuary Right in another's Land which the Lord gives for a Benefice upon condition that the Grantee should be faithful and true to him and perform Military or other Service This is a perpetual Right therefore not to be disposed of by the Lord's Will or the Law which he should give 'T is indeed Vsufructuary because the Lord has the Forfeiture and Escheat according to the Laws setled in any particular place For I take it that in one place they differ'd from another And in Confutation of this Conjecture that ex ipso jure Feodali the Lord jus dicit take this as the general Law of Feuds 't is enough that in any place where the Feudal Law was received 't was otherwise Choppinus de Juridic Andeg Choppinus sayes that amongst the French a Feud implies not juridica potestas nil commune cum juridica potestate Which if as Jurisdiction is often used to signifie a Power inferious to Jus dicere it is but a Judicial Power it follows that the Lord could not have the greater where he had not so much as the less And farther Feuds have in all Countries been guided by the Law of Property their Common Law Thus sayes Cujacius Nos quoque jus feudorum quo Italia utitur sequimur non inviti nisi siqua in re pugnet cum legibus aut moribus nostris We also willingly follow the Law of Feuds which Italy uses unless in any thing it fights with our Laws or Customes And this is to be observed that the end of raising Feuds has often prevailed to introduce a Custome without any express Law and beyond the Foreign Law of Feuds 1. Without express Law and thus to preserve the Head of a Barony that was never to be divided whereas any other part was often so in which the Common Law prevail'd from the end of raising the Feud which requir'd the Preservation of that entire though the other part of the Barony might be divided Bracton and Fleta suppose the Barony to descend to several as well Males as Females Bracton lib. 2. fo 76. Primogenitus vel primogenita habeat electionem propter suam Eisneciam says Bracton Fleta lib. 5. fo 313. whose words only I repeat Let the first born Male or Female have Election by reason of the elder Share And with this agrees a Record in King John's Reign Thomas de Scoteney petit versus Willielm Scoteney Capitale Mesuag quod habere debet in Steinton cum pertinentiis sicut illud quod pertinet ad Eisneciam suam de Baronia quae fuit Lamberti Scoteny Thomas de Scoteny
to his Parliament and no others unless by chance But pray what a Reflection is this upon several excellent Monarchs Successors to H. 3. whom he renders Denyers of their own Acts though under the Broad Seal But there is an Argument in the Parliament Rolls 3 H. 6. p. 12. upon the Question of Precedency above-mentioned where 't is taken for granted that our Kings and Queenâ— had not then such a Prerogative to do wrong If soch commandementz shold make right and yeve title it wer to hard for yen shold it seme yat neither of my sayd Lords Erls Mareschal and Warwyck shold fro this day never sitteâ— in Parlement without new Commandement To tell the Lords who are concern'd 〈◊〉 this that there are many who have an â—â—defeazable Right by Patent and some â—he first of whose Ancestors or themselves ever had any more than the ordinary â—rits without creating Clauses or any â—her than such as when any Parliament â—as to be called went out of Course and Right to them who were Lords before â—ould be as needless as the Orators Disâ—ourse of Tacticks to the Carthaginian Hero I shall be bold to offer to Consideration â—herein consists the Right of such a Sumâ—ons and I take it to be in the Prescripâ—ion though perhaps none were setled in â—he Right of coming till the 11th of R. 2. Yet the time from whence they preâ—cribe might be Earlier and yet whether Writ alone or only as fortified with Preâ—cription gave the Right here was what was not still left to Royal Pleasure onâ—y I conceive that a Writ of special Sumâ—ons of it's self gave no man Right to come always after this as a Lord for if it made him not a Lord it gave him no Right to come to the Lords House as such And this I take to be evident from the Records of the several Summons of the twâ— Furnival's Jan. Angl. at the latter end Father and Son who had thâ— same Writs of Summons with the Lordâ— and yet were no Lords for the loweâ— Degree of Lords was Barons and thâ— Son pleads that his Amerciament in a great a Sum as a Baron was against Law for that he neither held by Barony neâ— Baro suit intitulatus nor was called Bâ—ron nor obtained that name which could not have been if he was one of the Baronâ— in Parliament so that he could be no more than an Assistant as the Assistants havâ— Writs in the same form with the Lords Wherefore if any claim'd from Writ 〈◊〉 must be by prescribing to have had it 〈◊〉 long time in his Ancestors as amounts 〈◊〉 a Prescription by the Custom of Parliament which is the Law of it Besides 〈◊〉 can be no Objection that to a Prescription 't is necessary that it should have been iâ— memorially so as nothing to the contrary can be shewn whereas the very first Wriâ— may be seen for this most plainly is different from common Prescriptions both in the manner of it and in the Reason of thâ— thing 1. In the manner We find the Burgesses of St. Albans to lay their Prescription only from the time of the Progenitors of E. 1. which might be only from within the time of King John or from the beginning of his Reign if but from the later end â—here were an hundred years for a Prescripâ—ion 2. But besides this apparently differs in the Reason of the thing so that it must needs have a different Law from common Prescriptions For other things the Ground of the Right is the always having enjoyed either by a man's Ancestors or by them whose Estate he has And if it were at any time in others and it could not appear when they parted with it 't was a manifest Injustice for them to make such a Claim to have it so that â—he appearing upon Record when the first Writ was is an Argument that a Prescription may lawfully be made in this Sense 2 There were Commonalties Rot. Parâ— 8 E. 2. Bodies contracted by Representation that came to Parliament of Right who yet were Lords in the Drs. Sense being they held in Capiâ—e as he supposes the Knights for the Counâ—ies to be Grantz the same with Magnates as they held in Capite I am persuaded in this he taught the most Learned what fell not within their Knowledge oâ— Belief before and for a while made them quit that peice of Philosophy Nil admirari in wondring at the Sagacity of the man However by this time 't is wond'rous plain from his Demonstrations that admit a Difference was made between Lords and Commons with distinct Power yet the Commons of Counties Citties and Burroughs were not only often called by the same Names Yet I take it that such Tenants in Capite had no share in the Judicature because then 't would have continued still but were strictly Lords and therefore had a joynâ— Power even in Judicature For if they came before as Tenants in Capite and that Tenure made them noble 't was to be ever in the same manner since 6 R. 2. c. 4. But the very Traders nobilitated by the Dr. lay claim to and have allowed them a Right from Prescription It may be objected from hence against my Notion of the Lords which held in Capite being pass'd by at the King's Pleasure tho others were not that here a Prescription is laid upon the Tenure in Capite And it being from before the 49th oâ— Hen. 3. there could have been no such Settlement as both my Opposite and my self receive He perhaps has set aside this in his own Opinion but I must confess I can't embrace his new Sense However I think it no hard matter to give a natural Answer For the Author cited by the faithful Mr. Camden acquaints us with no other Alteration than what related purely to Singular Personâ— ex tanta multitudine Baronum Mat. Par. Quasi suâ— numero non cadebat Who being scarce to be numbred made very great Disturbances which required a new Model and a Restriction of the Numbers provided it might be with a just preservation of the Rights of every one in particular but those great Bodies which before came by Representation could admit of no change without a tendency to Destruction Agreeably to this Observation the Inhabitants of St. Albans plead their Right to be represented in Parliament not barely because of Tenure in Capite Rot. Parl. 8 Ed. 2. but Sicut caeteâ—i Burgenses regni as other Burgesses in â—he like Circumstances 3. I hope I have some Reason for my Confidence when I affirm that I ought 〈◊〉 differ from this New Light when it instructs us that the King 's appointing â—nd ordaining p. 227. That all those Earls and â—arons of the Kingdom of England to which he thought fit to direct Writs of Summons should come to his Parliament and no others or as he repeats the same meaning the Arbitrary Practice of Henry the Third Ed. the First and his Successors
the Iniquity of Mâ—nkind And whatsoever Act preceeds from the King's Ministers or whatever Malice be in the Heart of any of his Subjects the Law that Angel with a flaming Sword deâ—ending his Throne will not suffer it to affect him Nay if through Misunderstanding of the Law it should happen that a King go contrary to his own Justice 't is as if no such thing had been done So Plowden's 〈◊〉 iâ— he having an Estate in Taile Alien though from a common Person it would work a Discontinuance yet from him it has no Effect because it would be a wrongful Action Though he has more Power than any Subject yet Subjects may be and are more able to do Mischief And for a full Proof what Confidence the Law has always had in the King 's doing nothing in his own Person but what is highly fitting though an effect should follow upon a rigorous Action of his as if he should kill an innocent man with his own hand there never was any Remedy And this was taken for Law as long since as the Confessor's time Nor is it to be imagined that William the First and his Successors reâ—eded from this Power how little soever â—hey exerted it In that famous Case where the Confessor Tit. of Honour fo 525. impeach'd Earl Godwin of Treason 't is urged by the great men of Godwin's Party that he could not be a Traitor to the King because he was never â—ied to him by Homage Service or Fealty 'T is answered and not replyed â—o on the other side That no Subject ought Bellum contra Regem in appellatione â—uâ de lege vadiare could not lawfully demand the Battail against the King Appellant Sed in toto se ponere in â—isericordia Regis but must wholly yield himself to the King's Mercy In this Case though the Party might prove himself against a Subject to be innocent yet there was no way of Tryal against the King the Appeal being the only Tryalâ— and that required Battail but a maâ— ought rather to lose his Life than strikâ— his King to whom he owes his Protection and Defence from Rapine as the King iâ— the great Executer and Preserver of thâ— Laws Though this Case is of the King 's appealing yet if a Subject should presume tâ— be Appellant against his King for thâ— Death of his nigh Relation the Reason holds and surely 't would be very absurd for an Indictment to be brought in the King's Name who has Jus gladii against himself others could not executâ— the Judgment upon him and I take it no man can be compelled by Law to bâ— felo de se. But what need have I to say any thing on a Subject which every man is bound bâ— his Allegiance not to controvert I shall only observe That the Disputâ— between us can be no more than whâ—â— Right one Subject or body of Subjects has to impose upon another Whether 〈◊〉 â—o the Kings of England have always had a Council in matters of Legislature we have no Difference the only Question is who were of the Council but if as 't is argued on the other side Tenants in Capite were the only Council and if I prove that the House of Lords succeeded to the whole Power of such Tenants and these can have no more than they had he that makes the Tenants the only Council for the Legislature takes away the King 's Negative Voice for that the Lords have in that Jurisdiction which they enjoy upon that old Right of the Tenants in Chief and no King pretends to the Trouble of having a Negative in matters of ordinary Judicature But besides this which I have answered there is a Charge of being an Enemy to the Government by Law establish'd in the Church for which we must consider that the Government in this Respect is made up of the Laws and the Officers in it For the Laws I dispute none of them because I acknowledge the Authority which made them and whether 't is advisable that any of them be altered I leave to the Supream Wisdom of the Nation For the Officers I quarrel not at the Chief the Order of Bishops nor yet at the Ecclesiastical Jurisdiction upon the Reason already given and my Proof that they have this by Law perhaps is Particular truly I conceive it to be a great Mistake that the Statute which took away the High Commission Court took away all Ecclesiastical Jurisdiction for only the part relating to that Court is repealed and then the first of Elizabeth having revived the 28th of Hen. 8. the former Power called Ordinary Power is left entire being provided for by the Statute of H. 8. Which amongst other things Enacts That every Arch-bishop and Bishop of this Realm 28 H. 8. â— 16. and of other the King's Dominions may minister use and exercise all and every thing and things pertaining to the Office or Order of an Arch-bishop and Bishop with all Tokens Insigns and Ceremonies thereunto lawfully belonging It may be said That still I say nothing of the Divine Right of Church Officers and Power but that I may step as far as can reasonably be expected from a Lay-man I acknowledge that there is a Divine Right for Church-Officers and Spiritual Power distinct â—â—om the Civil I cannot now but hope that I have said â—nough to render me fit to be heard upon â—y first Subject in which I have followâ—d the Authority of the great Fortescue â—ho taught the World long since nor is â—his man of Letters too good to learn of â—im that in all the times of these seveâ—al Nations and of their Kings Fortescue p. 38. 6. As translated already this Realm was still ruled with the self-â—ame Customs that it is now govern'd with all Which if Mr. Selden had taken in â—he Genuine Sense as meant of the Government or Constitution which is the Foundation of all particular Laws he â—eed not have been at so much Pains in his Comment hereon If I find any thing more expected from me either in Vindication of my self or â—n more fully drawing my Adversary in â—is proper Colours and admirable Features the first I shall do for the sake of Truth and if I can get as much vacant time from my Studies and Practice in my Profession His Letter to the Earl of Shaftsbury as it seems he has had from â—is I may do the other if it be only for Diversion I am sensible that want of time or of Health to give the finishing Strokes to this rude Draught are of themselves but poor Excuses to a Reader who would doubtless be content to stay till he could see some thing more correct but when my delay would give time for so much growing Mischief as has been sent abroad to spread it self even such an Antidote as I now offer may be accepted till Mr. Petyt has fully prepar'd his Catholicon which will persuade them who have been imposed upon with Noise and Nonsense to
of Summons and deny their Rights in legal Practice tho a Parliament was to be held In fine the Kings of England de facto used to suffer Tenants in Capite to come to their great Councils but the Right is deny'd even them who only had that Permission But Against Jan. c. p. 66. and 67. does he not own the Fact with us expressly in the 48. of H. 3. and yet goeth to set aside the Right by giving an Account of the History and Occasion of it Our Champion not only denies that the Commons had any Share or Votes c. in making of Laws for the Government of the Kingdom c. unless they were represented by the Tenants in Capite but vouches the name of Sir Henry Spelman to prove that 't is of Right Ex ipso jure â—eodali that the Tenants in Capite should represent the rest In this Case â—e may admit us all the Fact of coming to the great Councils and yet the Right would have been against us as long as the Feud remained that is till the twelfth year of his present Majesty when the Feudal-Right as set forth by our Opponent ceast So that not only the Fact within the Compass of our dispute would have been insignificant but no Fact since to this very day could prove any Right the Right of sitting in Parliament having been according to him wholly Feudal if any no Statute giving a new Right to any 〈◊〉 elect as I shall shew since the time when he places in the King's Tenants in Chief by Knights Service all that Right of Elections which was suffered between Subject and Subject Where then is the Right at this day Vid. Pref. in any Commoners to come to Parliament Nay in any Lords upon the Grounds which I have already expos'd But what if in our Dispute about ancient Testimonies we have granted us those very words which we contend for Against Mr. Petyt The Commons c. were not introduced c. before â—â— H. 3. That is not once if the Question be only of Fast. as Evidences oâ— the Fact nay and our own Sense too to be on Record admitting that Right may arise from one Fact well proâ—ed what Question then remains Why then 't is purely of Right Vid. infra fideles and that â—s whether our Delian Apollo has not Right in his floating Island to set up Matthew Paris above Record if it were only for this Reason that he speaks â—ore oracularly and doubtfully than the Records Is it not granted that the Fact is on our side by such Authority as he would advance above Records and that in reâ—ation to his belaboured Conquest when â—e says that the mistaken Notions that â—s those which are contrary to his of the Conqueror's Title Laws and Government Against Mr. Petyt p. 43. were devised by the Monks and Clergy-men-Lawyers Nay is not the Right of Conquest it self as merely such made a Question by himself For he asks whether any man can forfeit that is justly loose his Lands to a Stranger a Conqueror that could not pretend Title but by Violence and Conquest Justly to loose and to forfeit must here be reciprocal to vest a Right in a Conqueror for if the Vanquish'd loose not their Right of Reprisal when 't is in their Power 't is not forfeited and if 't is not forfeited forisfacta made anâ— ther 's by Right 't is not justly lost nay 't is not lost at all only forcibly with held Is it not in effect yielded us that the Commons have ever of Right been Aâ—senters as well as Petitioners and thaâ— from before the 49. of H. 3. For hâ— yields the Word Ever to be in the Parliament Roll nor does he tax the Cleâ—â— with any designing Addition to the Record but which serves not his Turâ— he says Against Mr. Petyt p. 134. 't was ever since they were a third Estate or a Member of Parliament A goodly Discovery that they werâ— a Member ever since they were a Member but do they not plead that they were ever a Member that is immemorially If they had prescribed to this ever since the 49. of H. 3. he might have triumph'd but even in his Sense neither Fact nor Right is controverted because for ought he says here they might ever have been a third Estate And if Burgesses whom though Tenants in Capite I shall take for Commons which to be sure with him had as great if not greater Right than any not so holding could not make that Claim matter of Right in the 8. of E. 2. but at at least it might be overthrown for â—eason of State how came it to pass â—â—at the whole Body of Commons did it â—â—en without Check from the King or â—â—s Council whom he makes very ignoâ—â—nt of the Prerogative or so fearful of â—â—eming to assert it that they durst not â—â—me it though perhaps the Lords â—ere all likely then to have joyned in â—â—e throwing them out and this at a â—â—me when we are told the Commons â—ere little inconsiderable Fellows and â—ore the Lords Livery Coats That more than Tenants in Capite â—ere present at the great Council when King John's Charter was made I do not â—â—nd that he controverts and indeed â—ow can he There having been that â—rmy which was too powerful for their â—nhappy King and the Londoners in great Numbers who I take it used â—o come more contracted but he denies that more than Tenants in Capite were Parties to the Laws whether they were de facto is to be proved by Reason And he urgeth that the Laws were made only to Tenants in chief which indeed would be a Demonstration that none but they were Parties but that moâ—â— were I shall prove under a distinct heâ— of his Contradictions SECT 2. His Contradictions 2. MR. Petyt whom I cannot bâ— call judicious notwithstanâ—ing the Interdict had asserted that tâ—â— Commons such as are now representâ— by Knights Citizens and Burgesseâ— were always of Right an essential paâ—â— of the great Council I joyn my Suffragâ— and for Proof alledge that King John Charter does not constitute the Tenanâ— in Capite the only Members but leavinâ— to all the Villae their Liberties and frâ—â—â— Customs If the Inhabitants even Parishes came to the great Councilâ— without Consideration of this Tenuâ— in Capite their Right was sufficiently secured under the word Villae Now what if all this is oppos'd onlâ— out of a Spirit of Contradiction and ouâ— of the same Spirit he contradicts himself and answers the Character which the inimitable Cowley gave of Envy which begun Davidâ—â— â—nvy at the Praise her self had won â—he Villae I say signifies Towns and â—â—shes too as distinct from the Burâ—â—s to be sure not the Habitations â—â—nants in Chief only whom our Opâ—â—nt argues to have been the only â—â—sentatives of the Commons if they â—any till the 49 of H. 3. But to deâ—â— my Notion of the Villae he cites
required or what was therein contained Upon this Habilo Concâ—â—io mature Advice being taken and that of the great Council for that at least consented â—n not opposing the King sent his Precepts to the Sheriffs throughout the Kingdom to cause an Inquest of twelve Knights or else of twelve lawful men â—hat is Free-holders to be return'd 12 Milites vel legales homines out of every County respectively concernâ—ng the Liberties which were in Engâ—and in the time of King Henry that King's Grand-father The Charter mentioned by our Adversary was 9. H. 3. And so after this Tryal the Precept for which was 〈◊〉 indeed the actual Confirmation of what they found or Judgment upon it was not till two years after â—ut then the Clerus Populus cum Magnatibus where by the way the Populus could not be the Magnates â—he Inferiour Clergy and Laity with the great ones go on upon their former Issue and would give no Supply to the King's Wants till he would grant Petitas Libertates the Liberties they had before sued for or demanded not barely as a Confirmation of King John's Charter M. Par. Supra p. 305. but indeed these very Liberties which they pleaded to have been such in the time of H. 2. The Denial of which occasioned the fighting for them against King John were in Substance no way different from the Grant made by King John in Affirmance of the Common Law And so the Charter of H. 3. was in nullo dissimilis to King John's and if there were any Difference the Clause by which the great Priviledge of Tenants in Capite is argued for being omitted 't is a Sign that admit it constituted them a full Parliament this was not their Right in the time of H. 2. nor return'd so to have been but was the only thing extorted by Force and fell with it This were enough to set aside all his Arguments nay and that Language too which serves instead of them but I cannot deny my Reader and my self the Pleasure of observing him more particularly and if it may be of knowing him intus incute His two main Designs if he be steady to any but to contradict right or wrong are 1. To prove that William the First took away from the English their Estates â—nd as he imposed the Tenures and Manâ—er of holding our Estates in every respect so he did all the Customs incident to those Estates The Customs I thought had been within the Manner but let that go Des Cart. Principiae Phil. p. 17. Per modos planè idem intelligimus quod aliâ—i per attributa vel qualitates c. the Manner implies the Quality as he might have been taught long since â—y Des Cartes this extended to all the Estates derived or come to any now â—nd yet in the very same page 't is but most of them being feudal not all I have already shew'd his Denyal of the Conâ—ueror's Right to take any and thus â—his Mountain is finely brought to Bed by the Dr. 2. As a Consequent upon William's dividing the Land amongst his Followâ—rs he would shew that this King's Grantees and that in Capite by Knights Service were the only Members of the Great Councils Against Mr. Petyt p. 2. and that no others had any Communication in State Affairs unless they were represented by the Tenants iâ— Capite Against Jan. c. p. 12. In another place No doubt but the Tenants in Capite were the General Council of the Nation If therefore he own that there were Councils more general than such as were compos'd of Tenants in Capite only does he not yield the Cause Not to repeat his Concession for Towns incorporate not holding in Capite he yields it for single Persons who still held not by that Tenure In many places he grants As p. 112. That all the Nobility of England met to treat with the King Against Mr. Petyt p. 131. or to the like purpose Farther that the Baronage or Nobility included the Tenants in Capite and sucâ— great men as held of them by Military Tenure So that in effect if the Tenure or as he expresses himself A Tenemenâ— or Possession Glos. p. 10. neither added to or detracted from the Person of any if free oâ— bound according to his Blood or Extraction An ordinary Free-holder in free or common Socage might as well have been provided for as to a Right in coming to Parliament as a Tenant by Knights Service of the King's Tenant in Chief But he tells us then theâ— must be great men holding by these Services But to shew that he insists not upon this finding a vast number of men at the passing of King John's Charter which was Inter Regem liberos homines totius regni Glos. p. 26. he yields that the Retiâ—ue and Tenants in Military Service were Members of the Council though upon second Thoughts he tells me these liberi homines were the same which â—he King calls in his Charter Liberi homines nostri Against Jan. c. p. 9. These Liberi homines nostri were Tenants in Capite So that the Tenants of Tenants in Capite were Tenants in Capite and this suppose explains that Passage where â—e says Against Mr. Petyt p. 176. Whoever held of the Tenants in Capite by mean Tenure in Military Service held of those Barons or Tenants in Capite by the same or like Tenure that themselves held of the King That is every Tenant by Knight's Service of the King's Tenant by Knight's Service held in Knight's Service which â—dentical Proposition I heartily thank â—im for or else every such Tenant of â—he King's Tenant in Capite held of the King in Capite that is immediately and â—ot immediately in the same respect But these Tenants of Subjects such as were Members of the great Council were however concluded by the Acts of their Lords Against Mr. Petyt P. 113. They that held of the Tenants in Capite by Knights Service were bound by their Acts viz. The Acts of the Tenants in Capite that is These Tenants were Members of the great Council and no Members as their Lords represented them and yet did not represent them but they came themselves But to be sure none but Tenants by Knights Service who were Homagers and sworn to obey their Lords as the ordinary Free-holders were to keep the Laws and defend the Monarchy Jurati fratres-franck-pledges and the Peace of the Kingdom were in his Sense bound by the Acts of their Lords So that there was a necessity for the Bull and Multitude of Free-men or small Free-holders Glos. p. 31. to be bound with Sureties to their good Behaviour in such manner as the Law had requir'd amongst themselves otherwise the Government could not secure it self against their Violations of the Laws they neither meeting in the Great Councils nor being bound by the Acts of such as met any more than the Tenants in
ancient Demeasn when they have not been called to great Councils This Author is pleased to say p. 99. It cannot be thought that the King ever wrote to all the Knights and Feudataries of England Pat. 15. Jo. p. 2. M. 2. n. 9. Rex Baronibus militibus omnibus fidelibus totius Angliae These Fideles were the Kings Tenants in Capite Glos. p. 16. to meet in a great Council c. and therefore whatsoever the words of the Writ are the Design of it was to convene such only as had usually in those â—imes been called to great Councils which were the Tenants in Capite though no Barons That is in effect the King never wrote to all the Knights and Feudataâ—ies yet he did for he conven'd his Tenants in Cheif though no Barons 'T is manifest he speaks here only of the King 's Feudal Tenants for he avoids â—he largest and most comprehensive Sense of Fideles which as he informs us there â—nd in his painful and partial Glossary of some half a score words may be taken for Subjects in general and restrains â—t to such as were Tenants in Capite But he says 't is not to be thought that all the Fideles in the restrained Sense had the King's Letters or Writs yet in the same page with an antick Face p. 99. he tells us they the Tenants in Capite though no Barons were all summoned by particular Writs And this he learnedly proves by the irrefragable Authority of King John's Charter p. 100. which gives the Tenants in Capite that were no Barons a general Summonâ— only even as he himself translates the words I 'll appeal to all but him whether he does not only yield the Right which he opposes in the Sense which he puts upon Fideles but gives more than any reasonable man will insist upon for I knowâ— not that it has been urged for more than Free-holders But whereas he tells us That the word Fideles of which there has been so late mention Glos. sometimes is taken 〈◊〉 Subjects in general in another place he gives us to understand that the meaning of this word Fideles as also of these words Liberi homines liberè tenentes c. p. 17. is to be known from the Subject-matter where they are used Wherefore if such Grants were made by these as Feudataries only could not charge then others were Parties thoâ— not in his large Sense That such there were we have the Authority of Braâ—on Jani Angl. facies nova p. 1. as has been before observed tho â—he Dr. thought it not worth his noâ—â—ce Sunt quaedam Communes praestationes â—ae Servitia non dicuntur Bract. lib. 2. c. 16. p. 37. nec de consueâ—dine veniunt nisi cum necessitas interveâ—erit vel cum Rex venerit sicut sunt hiâ—agia corragia carvagia alia plura de â—ecessitae consensu communi totius regâ—i introducta Which are not called Services nor come from Custom but are only in case of Necessity or when the King meets his People as Hidage Corrage and Carvage and many other things brought in by Necessity and by the â—ommon Consent of the whole Kingdom And the Carvage which is one of the â—hings mentioned by Bracton we find â—ranted by the Magnates fideles Rot. Claus. 4. H. 3. m. 2. Conâ—esserunt nobis sui gratiâ communiter omnes â—agnates fideles totius regni nostri doâ—um nobis faciendum scilicet de qualibet caâ—catâ c. duos solidos But farther if I may be so bold he â—ells us by this Law meaning King â—ohn's Charter p. 100. the way and manner of â—ummons to great Councils was setled So that for the future p. 101. the Summons should be by particular Writs to every great Baron and in general to all Tenants in Capiteâ— by Writs directed to the King 's Sheriffâ— and Bayliffs Yet for all this plentiful Concessionâ— that here was a Right setled by Law he had before as much as in him lay over-thrown it and destroyed the wholâ— Foundation of Parliaments by a wisâ— Answer to the Record of 8. Ed. 2. wherâ— St. Albans as holding the Chief pleadâ— it's ancient Right to come to the greaâ— Councils and alledges that the nameâ— of it's Representatives appear in thâ— Rolls of Chancery The Answer per Concilium is Scrutentur rotuli c. de Cancellariâ temporibus Progenitorum Regis Burgenseâ— praedicti solebant venire vel non tunâ— fiat justitia vocatis evocandis si necesse fuâ—rit This I find thus translated Let the Rolls of Chancery be search'd if in the time of the King's Progeniâ—tors Against Mr. Petyt p. 78. the Burgesses aforesaid used to come or not and then let them have Justice in this matter and such aâ— have been called may be called if therâ— be necessity Though I am informed by such as â—nnot but know it to be so Against Jan. c. p. 111. that this mighâ—â— man of Letters has been drudging at â—ecords these sixteen years yet I do not the least wonder at his Ignorance in â—â—em since he laid not a Foundation at â—â—hool by learning Latin as he should â—â—ve done nor has Stepdame Nature â—â—dued him with Sense to understand 1. Can he pretend to Latin and â—t translate Vocatis evocandis such as â—â—ve been called may be called The â—â—st Rudiments would have taught him â—at it signifies They being called that â—â—ght to be called or such Persons and â—hings as ought Parties Papers and â—ecords And if he had look'd into the Parliaâ—ent Rolls of that very Year Rot. Parl. 8. Ed. 2. n. 261. 247. he would â—â—ve found Vocatis vocandis or Vocatis â—i fuerint evocandi which was used it were to prevent all possible Blunâ—rs the usual form of directing Tryâ—s 8 Ed. 2. n. 105. Sometimes 't was Vocatis partibus 〈◊〉 auditis eorum rationibus 2. But can he pretend to Sense â—o shall think that when Justice is to 〈◊〉 done still 't is left to Will and Pleasure with a may be Or that when Right is grounded upon any particulâ—â— Reason or Fact which only is question'd the Right would be in Questionâ— though this very thing were proved How comes the Search to be directed as the only means of deciding it Oh! but 't is si necesse fuerit I take 〈◊〉 this can be no more than that if after the Rolls were search'd farther Tryaâ— or the hearing the Parties Reasons anâ— Enforcements of the Fact were neceâ—sary they should be called To which Sense Records of the same year give full Authority Mandetur Thes. Bar. de Schaccaâ— quod vocatis coram eis Collectoribus infâ—â— inquisita contentis in petitione si necessâ— fuerit plenius veritate Rot. Parl. 8. Ed. 2. n. 204. so n. 241. faciant inde conqueâ— rentibus justitiam But more direct Rot. Parl. 8 Ed. 2. n. 210. Et si necesse fuerit quod Nicholaus
acquir'd the Crown by Election these things shew it to have been as factious as those which are condemned But we must have Recourse to the History to know how he became King here England since it had been reduced to a Monarchy by the Conduct and Magnanimity of the great King Alfred found that benefit of being under One Head that before Succession was setled when a King dyed the People voluntarily pitch'd upon some One to whom they might pay their Allegiance and from whom they might expect Protection when a King quitted his mortal Dominion to be Assessor with the Principaâ—ities and Powers in the highest Orb. The Question was not whether they should have a King or no but who should be the man The Confessor through some foolish Vow which was void in it's self having denyed Marriage-rights to his Queen they had none of his Issue to set their Hopes upon and perhaps they were loth to fall again before a Family which they had formerly disobliged and therefore would not think upon Edgar Etheling who was Heir to him that wore the Crown next before the Confessor But that Monarch of their Choice and as 't was believ'd the Elect of Heaven was in such esteem with them that the greatest Worth and the clearest Stream of Royal Blood would have signified little in respect of the Deference they paid to his sanctified Judgment and therefore his Recommendation in such a superstitious Age was to them a kind of Divine Revelation The Norman Prince Abrev. Chron. Rad. de diceto fo 479. Subregulus Haroldus Godwini filius quem Rex ante suum decessum elegerat à t tius Angliae Primatibus ad regale culmen electus William pretended a direct Gift of the Crown from him but there is Authority which tells us That upon his Nomination the chiefâ— men of all England chose Harold Whether this illustrious Son of the great Earl Godwin was design'd by the Confessor or no is left in Dispute but that he arriv'd to his high Trust by a general Election of those who were able to keep under M. S. ex bib Domini Wild defuncti or satisfie the rest is certain and yet an ancient Author calls him Conqueror Heraldus Strenius Dux Conquestor Angliae If Harold has made an absolute Conquest which no man pretends that I find and William had conquer'd him perhaps there would have been a Devolution of a Conquerours Right upon him who subdued Harold but there was only a Competition between these two Princes for that Dignity and Authority which Election had vested in Harold 'T was this that William fought for not for the Lives Liberties and Fortunes of the People And William himself upon his Death-bed being ask'd to whom he would devise his Kingdom makes Answer that he would not pretend to dispose of it and gives this Reason which argues that he thought he had no Right so to do Non enim tantum decus haereditario jure possedi For Comb. Brit. f. 104. I possess'd not this Honour as a Right of Inheritance which here must be meant as what I had an absolute Property in and Disposal of Sed diro inflictu multâ effusione sanguinis humani perjuro Regi Haroldo abstuli interfectis vel fugatis fautoribus ejus dominatui meo subegi But by a direful Conflict and much effusion of humane Blood I took it from perjur'd King Harold and brought it under my Dominion through the Deaths or Flight of his Abettors With this agrees Lex Noricorum in the Confirmation of St. Edwards Laws William the Bastard through God's Permission subduing Harold Regnum Anglorum victoriosè adeptus est Got the Kingdom of England by his Victory but the Victory was over Harold not the whole Kingdom I wonder our Antagonist brought not this to prove that William the Bastard got all the Lands of the Kingdom as he granted all the Lands of whole Counties under the word Comitatus but as 't will appear that the Proceedings of this Prince to his being crowned prove his Election so his Transactions with Harold shew that he laboured only to have that Power which he said Harold maintain'd by Perjury Suppose therefore Harold had not oppos'd and without more Turmoils William had been crown'd had he in this Case been a Conquerour in the Sense contended for And what makes the Difference between his having it of Harold freely or by Force in relation to the whole Kingdom Surely he would never have endeavoured to come in by Treaty to a limited Dominion when with those Advantages that were on his side he might expect by turning â—ut Harold to jump into the absolute Disposal of the whole Land But immediately after St. Edward's Death he sent an Ambassador to demand a Resignation from Harold to which he urged his Obligation by Oath the Gift of his Kinsman the Confessor was likewise pretended But Harold argued for the Invalidity both of his own Oath and the others Bequest because they were Selden's Review of the History of Tithes p. 439. absque generali Senaâ—s populi conventu edicto That â—s no Act of the Common-Council of the Kingdom which Council is represented by this Author under the Form of the Roman Councils at those times when besides the Senator's Votes there was the Jussus populi And this is in other words of the same Import exprest by Matthew Paris Sine Baronagii sui Communi assensu Upon Harold's denying the Normanâ— demand Appeal is made to the Popeâ— and there was one then in the Papal Seâ—â— whose Ambition made him court all occasions of becoming the Vmpire of thâ— Affairs of Christendom Vid. Dr. Stillingfleet's Answer to Cressy's Apol. p. 347. ad 353. and this was thaâ— great Asserter of Clerical Exemptionâ— from the Civil Power Gregory the Seventh The Pope like God himself who by his Prophets often anointed and designed Kings sends one of his Ministring Spirits a Nuncio I take it with a consecrated Banner as an Evidence oâ— Right and an Earnest of Victory and encouraged him to fight the Lord's Battels not expecting that commendable Ingratitude in the religious maintaining those ancient Rights of the Crown oâ— England for which he afterwards upbraided his Royal Son Whether Superstition or the hopes oâ— engaging the Pope's secular Influence and Interest to his side occasion'd William to refer his Pretence of Right to the Pope's Decision I shall not judge but with these Colours of a Title he lands â—n England and some say committed no Acts of Hostility till his Claim was again deny'd by the daring but unhappy Harold who was a man of Spirit fit for Empire and was likely to have kept â—t much longer had not Fortune raised up against him three great Enemies at once his Brother Tosto Norwegian Harold and the aspiring William against whom possibly his arm was weakened with the Reflection upon his own Vow to William to assist him in his ambitious Design and what he
ow'd him in Gratitude for his delivering him from the unmerciful Norman Wido Contigit ut Heraldus filius Godwini de Angliâ navigare vellet in Normaniam sed in terram quae vocatur Pontâ—ium devenit quem Wido comes ejusdem patriae cepit in Custodiâ tenuit donec industria Willielmi sapientissimi Comitis Normannorum eum liberavit c. Brevis Relat. de Willielmo 1 o per Sil. Taylor that had detained him in Prison Yet he would not follow the wholsome Advice of his Brother Gurth who foretold that Flight or Death would be the Reward of his Perjury while they fighting for their Country M. Par. f. 3. M. West f. 223. might expect a better Fate Tir'd and his Army scatter'd with a bloody though successful Battel against his Brother and the Norwegian Harold breathing nothing but Victory upon News of the Normans coming he hastens from Stanford Bridge to Sussex and nine Miles from Hastings before he could put his Army into Array and as some say before half of it came up he eargerly encounters the fortunate Norman and there was his last Scene of Action Rad. de dicet so 480. So Mat. Par. f. 3. The People thought that he deserved to be their King who though by Artifice and a dissembled Flight could conquer the great Harold William Nec diutius verò ibi immoratus versus Lundoniaâ— principalem civitatem Angliae cepit ire sic ipsam terram Anglorum conquirere Brevis Relat. per S. Taylor fo 193. with great Wisdom hastened to London where doubtless he had many Friends of those Normans that were in favour under the Confessor besides those which they and the Slaves and Mercenaries to the Roman See could whedle to his side and then the Feuds between the Saxon and Danish Nobility and People made one Party for him if it were only out of Faction and opposition to the other He well knew if the City declared for him he did his Business in great Measure that being the Heart of the Nation from whence the Life of Power diffuses it self Many who had true English Blood in â—eir Veins and were against the Reign â—f a Foreigner had been lab'ring an Inâ—erest there Florentius Wig. f. 634. for the setting up Edgar Etheling the Nephew of Edmund Iron-â—de and lineal Heir to the Crown But there was so short a time from the Death of Harold to William's sudden â—oming up to London that they could â—ot bring it to any Head and thereâ—ore they that engaged in it and the â—hole City of London Army enough 〈◊〉 have drove Duke William to his Country or his Grave uncrown'd â—ame out to meet him as far as Berkamstead in Hertfordshire where the forâ—unate Duke Sim. Dunelmensis f. 195. sic Hoveden f. 450. Foedus poepigit made a â—eague or entred into Terms with â—hem they giving Hostages for the â—erforming the Fealty or Allegiance which they promis'd him but like geâ—erous Englishmen who were never â—ood at Treaty rely'd at that time â—pon his Word for that reciprocal Feâ—ty which if we believe Sir Henry â—pelman Kings used to swear to their subjects Glos. p. 271. Jurabat aliquando Rex ipsubditis suis fidelitatem mitto exteros sic autem de Canuto Rege Flor. Vig. in anno 1016. Fidelitatem illi juravere quibus ille juravit quod 〈◊〉 secundum Deum secundum saeculum fidelis esse vellet eis Dominus The Agreement as Florentius acquaints us was made with Prince Edgar amongst others and admit that alâ— Pactions with the People were voidable sure he was bound by what he madâ— with him who if any one had the Title to the Crown He fought with Harold on the 11â—â— of Nov. and on Christmas was crown'd at Westminster upon his own desire to come in like a natural Prince either by Choice or by Succession His Coronation Oath was taken before the Altar which was supposed to add to the sacred Tye and this was coram clero populo The Clergy and Laity without distinction by Honours were Parties as well as Witnesses and the form as is agreed both by Simeoâ— of Durham Sim. Dunelm f. 195. Flor. Wig. f. 634. Hoveden f. 450. Rex dicitur à regendo Bracton Florentius and Hoveden was Velle se sanctas Dei Ecclesias ac Rectores illarum defendere nec non cunctum populum sibi subjectum justè ac regaâ—â— providentiâ regere rectam legem Statueâ— tenere Rapinas injustaque judicia penitus interdicere That he would defend the holy Churches of God and their Rectors and likewise rule all his Subjects with Justice Viz. According to Law and that Care which befits a King that he would both make and himself keep right Law Viz. Give his Assent and wholly interdict Rapines and unjust Judgments The Solemnities which used to be perâ—ormed by the Arch-bishop of Canterbury â—ell to the care of the other Arch-bishop â—ome give the reason because the Pope â—ad declared Stigand who was then in â—he See of Canterbury a Schismatick and â—hat he was suspended from his Office â—y Ecclesiastical Censure Bromton f. 962. But Bromton â—ells us and puts it in the first place â—hat 't was said by some that Stigand reused to do it because he look'd upon William as a bloody man and an Usurâ—er And William of Newberry is positive 〈◊〉 it Newbergensis p. 1. Cumque peractâ Victoriâ tyranni noâ—en exhorrescens legitimi Principis â—ersonam inducere gestiens à Stigando tunc â—emporis Cantuariensi Archiepis Episcopo in Regem solemniter consecrari deposueret ille â—iro So Bromton supra ut aiebat cruento alieni juris invaâ—ri manus imponere nullatenus adquievit And when after the Victory gain'd he being afraid of the name of Tyrant and desirous to assume the Person of a lawful Prince entreated to be solemnly consecrated King by Stigand then Arch-bishop of Canterbury Stigand would by no means lay his hands upon a man as he said bloody and an Invader of anothers Right or that took what was none of his own I conceive it most probable that this Prince who according to his Character could not easily forgive them that caus'd him any Trouble being mindful of the Check which Stigand gave him even after London had taken Terms purposely wav'd taking the Crown from one that rival'd the Pope in Spiritual and him in temporal Power and had bid open defiance to both Wherefore his being crown'd by the other Arch-bishop Et potissimè Stigandum Bromton fo 962. and the Jealousie he had of Stigand which made him take particular Care to have him with him into Normandy Quia quidam laborarunt utpote Tho. Sprot alii c. Prologus Willielmi Thorne fo 1758. lest his Authority in England should unsettle his new got Kingdom gives a strong Inducement to the Belief of what William Thorne who wrote in the time of
some of his Favourites who were Pledges for William's Performances Sure I am as far as my Authors can assure me after this Classick Writer has blasted their Credit I will not say with a contagious Breath he promis'd as largely to the rest of the Nation as he did to the People of Kent If the men of Kent had their Representatives at least at the Electing him to Rule over them and were not subjected to him as a Conquerour nor were their Lands parcell'd out by him though we are taught è Cathedra that he took away from the English their Estates and gave them to his Normans So that according to his Reasoning the Flemmings Against Mr. Petyt p. 35. Anjovins Brittains Poictorins and People of other Nations who made up a great part of his Army and came with him under considerable men their Leaders came out of stark love and kindness They though Adventurers with him being content he should gratifie onely his Normans Nay he divided all the Lands of the Kingdom amongst his great Followers even the Lands of those Normans who had Estates here before But if I say the men of Kent enjoyed their Right as abovesaid what Reason beyond what I have assign'd is there to think that it was otherwise with the rest in general some of which were Adventurers with him but all equally sharers in the extent of his Promise to maintain rectam legem Though he and some of his Successors chose Succession as the most honourable Title yet that he had none but Election is evident in that he was not Heir to the Confessor Domesday in Surry Acstede Goda mater Heraldi tenuit IRE In another place there called Soror Regis Edwardi but rather Harold was who was Son to Goda that King's Sister Nor could the Confessor and Harold lawfully set the Crown upon his Head without the Consent of the Kingdom Nor yet could he gain a Title by Conquest over those who vielded upon the Terms of enjoying their Laws and Liberties and who unless those Terms had been granted had both Right and Spirit too to have kept him from Reigning over them Abating the factious conspiring to set him up against Edgar Etheling who though he was not as now the Law is actual King before Coronation yet ought to have been crowned the People had sufficient inducement to chuse William 1. Because he was a Prince of a less Potent Nation and therefore would make an Accession to England and give them footing upon the Continent from whence they might spread the glory of those Arms which were reproach'd with that necessity of Self-defence which makes even Cowards Valiant 2. He was a Prince who had governed his own Country with great Prudence and Moderation Brevis Relatio Willielmi ad finem Syl. Taylor p. 188. nor would attempt upon that acquisition to which many Circumstances invited him without the Consent of his Senate there 3. Harold being dead they knew not any man so likely to defend them from those Enemies which threatned and molested them from abroad or that could better secure them from the Tyranny of many Masters at home and the Distractions which in all probability would arise from their Feuds and Competitions for the Crown which every one that could draw the Mobile 〈◊〉 him would be catching at till it was plac'd and setled Thus I think 't is made evident that William the first his Title was by Election and that the Election according to the infallible Rule was factious since how unanimous soever they might be at the crowning him Feuds and Factions wearied them into the Agreement more than the Force of his Arms but I shall not give him this Author 's obliging Epithetes 'T will be said perhaps if the Election be void then he is let into a Title by Conquest yet how can that be when the very Conquest or rather Acquisition whatever it were was by this means he being received upon Terms Foedus pepigit Besides if there were no Election then the People never yielded were never conquered And there was no more a Conquest of the whole Nation than an Election by the whole The actual yielding of some and tacit Concurrence of others made his Title SECT 3. That he makes a Title to the French King from the Acquisition of his Feudal Tenant the Norman Duke upon his Notion of the Feudal Law BY the Law of Feuds as he receives the Supposititious Sir Henry Spelman for so out of Reverence to his Memory I take leave to call the Second Part of the Glossary till 't is reconcil'd to Truth or till our Author who goes upon the same grounds makes them good Superior quisque Dominus Regulus agit in suos subditos Against Mr. Petyt p. 104. in rebus ad feodum suum pertinentibus ex ipso jure feodali jus dicit Every Superiour Lord Acts like a little King over those that are under him Little it seems for the number of his Subjects not the extent of his Power over them and in things belonging to the Feud gives Law even by the very Feudal Right that is to say is absolute In another place Consentire quisque videtur in personâ Domini sui Capitalis prout bodie per Procuratores Comitatûs vel Burgi 2 Glos. tit part quos in Parliamentis Knights and Burgesses appellamus Every Inferiour seems to consent in the person of his Lord as at this day we do by the Representatives of the County or Burrough which we in our Parliaments call Knights and Burgesses What no Citizens amongst them Truly I should think by the Comparison that a Legislative Power was delegated to the Lords of the Feud as there is it seems to the Representatatives of only the Counties and Burroughs but that it is Ex ipso jure feodali Further our State-Quack has it Glos. p. 7. As all their Estates arose from his Beneficence What if some purchas'd theirs So they depended on his Will Originally That is the Feudal Tenants ib. p. 4. all Vassals held their Lands at the Will of the Lord and whether they were Delinquents or not he might at his Pleasure take them from him When this rigid Law expir'd he does not vouchsafe to inform us however he yields the Substance of all in acknowledging that the superiour Lords gave Law or were absolute and represented or govern'd the Tenants in the Legislature till the 49. H. 3. To assume William was Feudal Tenant to the King of France and according to the Feudal Law long after his time King John was summoned to the French Court to answer for the Death of Arthur of Britain who was another Feudatory to the French King William himself was not only subject to the Feudal Law but thereby was as much under his Superiour Lords despotick Power in relation to what he got as the most inferiour Tenant William depended upon that King's Will his Dominion was forfeitable without any default
Term. Pasc. 7. 8. Jâ—hannis 9. dorso claims against William Scoteny the Capital Messuage which he ought to have in Steinton with the Appurtenances as that which belongs to his elder share of the Barony which was Lambert Scoteny's These surely were Brothers not Sisters Sons being of the same Name and the Claim being immediately from the seizin of Scoteny and this Claim was allowed as the Record shews Besides tho 't is generally believed that Wardship was in use before the Reign of H. 3. And Mr. Sylas Taylor in his History of Gavelkind Hist. of Gavelkind p. 104. thinks he proves it to have been before the supposed Conquest Yet we have good Authority that there was no express Law for this before 4. H. 3. Kâ—ighton fo 2430. Aâ— 1219. 4 H. 3. Magnates Angliae concesserunt Regi Henrico Wardas hoeredum terrarum suarum quod fuit initium multorum malorum in Angliâ The great men of England granted King Henry the Wardships of their Heirs and Lands which was the beginning of many Evils in England 2. We find Custom prevailing beyond what was the foreign Feudal Law at least of some places for which I may instance in Relief paid by the Heir male after the Death of his Ancestors Whereas I find it in Cujacius payable only by the Heir female Cujaâ—iâ—s fo 498. Siquis sine filio Masculo mortuus fuerit reliquerit filiam filia non habeat beneficium patris nisi à domino redimerit If any one dye without Heir male and leaves a Daughter let her not have her Fathers Benefice unless she redeem it of the Lord. That Relief was called Redemption appears by the Law of H. 1. Leges fo 1. cap. 1. Haeres non redimet terram suam sicut faciebat tempore fratris mei sed legitimâ justâ relevatione relevabit eam It seems in King Rufus his time this payment was so unreasonable that 't was a Redemption in a strict sense and a kind of Purchase of the Land but now 't was to be a lawful and just Relief 2. The jus feodale mentioned in the Glossary if it be not the Law generally received where Feuds were must be the Law of England in particular But 't is to be observed that Choppinus knocks this down who tells us that amongst the French Juridica potestas was not imply'd by a Feud Against Petyt p. 31. in margin But our Apollo teacheth us that our ancient Tenures were from Normandy and that was govern'd by the French Feudal Law being of the French King's Feud Wherefore the Juridica Potestas or jus dicere was not here Ex ipso jure feodali nay in the same place the French Feudist tells us Choppinus de Jurisdict Andeg fo 455. Interdum certè Baro Castellanum observat superiorem 'T is certain sometimes a Baron is under a Castellan's Feud And he gives the Reason why it may be so which is that a Feud carries not with it ib. so 450. the Potestas juridica which reason is very apparent in that a Castellan is of a degree lower than a Baron Take Juridica potestas in the same Sense with jus dicere in the Glossary a Baron was to take Laws from his Inferiour Leges H. 1. cap. and to have his Lands taken from him without Forfeiture as it appears by the Law of Hen. 1. that being one of the Judges in the County Court was not upon the Account of Resiance but the having Free land there so it must have been in the great County Court of Cheshire though they had an extraordinary Power there Admit therefore that a Lord of another County were Feudal Tenant to a Commoner there as 't is not to be doubted but he might have been should this Lord have been represented by his Capital Lord there Glos. 2 part Consentire quisque vid. Or admit a Lord there had no Land but what he held of a Commoner as of such an one as Thomas de Furnival Jani Angl. facies nova p. Sed vide the Record more at large who had several very considerable Mannors might Thomas de Furnival represent the Lord in the Lord's House But farther taking the Jus Feodale to be as in force with us unless the positive Law giving so large a Power be shewn 't is a begging the Question for 't is to prove the Right which our wise Antagonist would exclude from the Question as being indisputable I suppose by the Fact whereas the fancied Right is used in his Hotch-potch Glossary to induce us to the belief of the Fact But from what Sourse is this Right deriv'd SECT 5. An Improvement of the Notion of Jus Feodale THat I may make our mighty man of Letters out of Love with his darling Glossaries 2 Part of the Glos. and his own I shall observe to him That according to that for the Credit of which he pawns his own Truth or his Friends All the Lord 's Right of Representing their Tenants in the Great Councils Against Mr. Petyt p. 31. is meerly Feudal ex ipso jure feodali But all Feuds were enjoy'd under several Military Conditions or Services Being then these were the onely Feudal Tenures and yet as appears by Domesday-Book and all manner of Authority there were Freemen who held in free or else in common Socage though the Dr. sayes all the Freemen of the Kingdom were Tenants by Military Service These Socagers were not chargeable by any without their own consent But like men of another Government and it seems he will afford them nothing here they though called were not obliged to come to the Great Council which was the Curia of the King 's Feudal Tenants onely Nay they were never at it And therefore no wonder if the Laws were obsâ—rved by and exacted upon Against Mr. Petyt p. 43. onely the Normans themselves For the others could not be bound and if they consented to any Charge for Defence of the Government it could be onely in what way they pleased to consent either in a Body by themselves or united with the Vassals or else severally at home as a meer Benevolence And there being free and common Socage Tenants before the Norman's Entrance and since continually thus it must alwayes have been CHAP. III. That Domesday-Book to which he appeals manifestly destroyes the Foundation of his Pernicious Principles SECT 1. SInce our Tenures and the manner of holding our Estates Against Mr. Petyt p. 31. in every respect with the Customes incident to those Estates are said to be brought in by the Conquest and not onely most but all free Estates must have been feudal as Knights Service which is made the onely feudal was in the time of William the First the onely free Service ib. p. 39. What I have said of Feuds in the last Chapter doth directly reach the Controversie between us though our Author who has an excellent faculty of overthrowing his own Arguments
which were before nay sometimes less or none when formerly there were some as in Surrey Robert de Wate holds one House which paid all Services in the time of Kind Edward now nothing at all But to the Claims or Titles allowed Hantescire Aldredus frater Ode calumniatur unam virgatam terrae de hoc Manerio dicit se eam tenuisse die quâ Rex Edwardus fuit vivus mortuus disaisitus fuit postquam Rex Willielmus mare transiit ipse dirationavit coram reginâ inde est testis ejus Hugo de Port homines de toto hundredo Aldred the Brother of Ode claims one Rood of that Manner and says That he held it the day that King Edward was alive and dead and was disseized after that King William past the Seas and he recovered it before the Queen Hugo de Port is Witness of it and the whole Hundred 'T is to be observed that where the County or Hundred attests any mans Plea or Title this is a solemn Judgment in Domesday Book that being the way appointed of ascertaining Estates and Titles In the same County and Hundred Hugh de Port has his Claim allowed Hanc hidam calumniatur Hugo de Port dicens eam pertinere ad sua Maneria de Cerdeford Eschetune ibi eam tenuerunt sui antecessores hoc testantur tot ' Hundr ' This Hide Hugh de Port claims saying that it belongs to his Mannors of Cerdeford and Eschetune and there his Ancestors held it and this the whole Hundred testifies So the same Hugh claims three Houses and a Corner of a Field and one Rood and five Acres of Land of Turstin the Chamberlain and of this he brings the Hundred to witness that his Ancestors were seized Die quo Rex Edwardus fuit vivus mortuus The Tryal in this Couâ—ty between William de Chornet In Forcingbridge Hundr in Clatings and Picot the Sheriff of Cambridgeshire is very remarkable In isto Hundr in isto Maner tenet Picot 2 Virgat dimidium istam terram calumniatur Willielmus de Chornet dicens pertinere ad Maner de Cerdeford feudum Hugonis de Port per haereditatem sui antecessoris de hoc suum testimonium adduxit de melioribus antiquis hominibus totius Comitatûs Hundr Picot contraduxit suum testimonium de Villanis vili plebi de prepositis qui nolunt defendere per Sacramentum aut per Dei judicium quod ille qui tenuit terram liber homo fuit potuit ire cum terrâ quo voluit sed testes Willielmi nolunt accipere legem nisi Regis E. usque dum definiatur per Regem In that Hundred and in that Mannor Picot holds two Rood and a half of Land that Land William de Chornet claims saying that it belongs to the Mannor of Cerdeford of the Feud of Hugh de Port by the Inheritance of his Ancestor And of this produced his Testimony of the better and ancient men of the whole County and Hundred and Picot on the other side brought his of Villains and inferiour People and of Bailiffs who will not defend by Oath or by Gods Judgment which I take here not to be the Ordail but the Battail as we find the Tryals vel bello vel judicio that he who held the Land Which was the Issue against being of Hugh de Port's Feud was a Freeman and might go with it whither he would Here the County or Hundred testifies that the stress of de Chornet's Cause depends upon the Confessor's Law and so give the Title with him In the North and West riding of Yorkshire many Claims may be seen as of Earl Hugh which I take it was Hugh de Ferrers Henry de Ferrers being disseized in that County and 't is likely both claim'd by the same Title Hugh was a very considerable Free holder There are many others who are in like Circumstances as George Malet William Malet Orm and Bunde Osburn de Arcis William de Warren Ligulf Wido de Credun Percy Sortebrand Gislebert SECT 4. 'T is evident that King William did not so much as make a new Grant or Confirmation to men of what was theirs before the old Title being sufficiently firm hence in Amelbrice Hundred in Surrey tenuit Almaris sine dono Regis eò quod antecessor ejus Almar tenuit Almar held without the King's Grant because his Ancestor Almar held it In Glocestershire Brictric tenet de Rege 4 Hidas in Lechametone Geldant ipse tenuit earum 2 Hidas T. R. E. Ordric alias duas Rex Willielmus utramque eidem Brictric concessit pergens in Normaniam Brictric holds of the King in Lechametâ—ne four Hides and they pay a Quit-rent he held two Hides of them in the time of King Edward and Ordric the other two King William when he went into Normandy granted both that is the two Hides which Ordric held to Brictric so that Brictric enjoyed the other two not contained in the King's Grant upon his prior Title SECT 5. WHereas this Author is pleased to exercise his reflecting Faculty upon that Lawyer in Ed. 3. Reign Against Mr. Petyt p. 28. who affirmed That the Conquerour came not at all to out those who had right Possession Should be rightful but to out those which by their wrong doing had occupied any Land in Disinheritance of the King and of his Crown that is such Land as was forfeited to the Crown by their being in Arms against the King upon which p. 29. he says that this Judge spoke out of Design and studied and knew only popular and lucrative Law and not the Constitution of the Nation before his own time 'T is manifest that this free Censurer studies only parasitical Law and that if he were acquainted with Domesday book he would not censure this nor would challenge his Adversary to find any one Plea or Grant of the like Nature p. 26. with Swanborn's who pleaded p. 25. That he was never against the King Now 't is observable that we find many Forfeitures mentioned in this Book which were needless if the King seized without so in Essex in Barstable Hundr In Burâ de istis Hidis est una de hominibus forisfactis erga Regem in Bury one of those Hides belonged to the men that were forfâ—ited to the King and this was the way of Expression accordingly in the Active we find in Norfolk Earl Ralf held such Lands Quando se forisfecit But more particularly in Cambridgeshire in Wardune Hardwin holds of Richard this did not belong to Richard's Ancestor but Ralf Waders held it Die quo deliquit contra Regem that day on which he was in Arms or Rebellion offended against the King and so forfeited whereas otherwise it had continued with him but this compar'd with Indulphus the then King's Secretary makes a full proof Erle Yvo sends to Anjou to the Abbot of St. Nickolas
of the Rent of Serjanties assest by Robert Passelewe you do not distrain Jacob de Archaungere for two Marks and an half for the Tenement which he holds of us by Serjanty in Archamgere in the County of Southampton by the Charter of the Blessed King Edward to the Ancestors of this Jacob but for ever free the said Jacob from the foresaid two Marks and an half because we have confirmed the Charter of the forenamed St. Edward and will have it inviolably observed Here is an inspeximus in effect of the Confessor's Charter and the Confirmation lies in the Judgment that this was that King's Charter Whether the Serjanty here mention'd were the greater In Kenulph the Mercian King's Charter a discharge of all Services but the Expedition of 12 men with Shields Burgâ—ote c. White 's Sacred Law p. 149. which was Military Tenure for such there was before William's Entrance Mr. Selden indeed opposes this and contends that what lay upon Lands then was no Tenure from any Reservation but onely what the Law of the Kingdom had made incident to all Lands Yet I see not how that will solve a special Reservation of a certain number of men Or whether the Serjanty were the Little or Petit Serjanty is not within our Dispute because either way here is sufficient Evidence that there was a Property left in the English notwithstanding the Clamour of a Conquest And that we did not receive our Tenures Against Petit. p. 31. and the manner of holding our Estates in every respect from Normandy brought in by the Conquerour For this man held in the same manner as his Ancestors did in the time of St. Edward And with this agree good Authors Gulielm Pictaviensis p. 208. Nulli Gallo datum quod Anglo cuiquam injuste fuerit ablatum There was not given to any French-man what was unjustly taken from any English-man Now this was a Poictovin Against Petyt p. 35. many of which came in with Duke William and is more to be credited in this matter than the English Monks who since he reduc'd the Bishopricks and great Abbies to Baronies thought this Injury done to the Church as they took it was no way to be accounted for unless he were represented as taking from the Laity their Property which they thought a much lower instance of his Power than giving this Law to the Clergy God's special Lot and Portion But on the other side this Poictovin was more likely for the Glory of William's and his Country-mens Arms to represent them as great as might be in the number of their Slaves and to have a whole Nation of them is doubtless a glorious thing in the Doctor 's eye And with this Poictovin may be joyned honest Knighton Knighton p. 2343. lib. 2. cap. 2. who sayes Quidam possessiones habentes de dicto Willielmo seu ab aliis Dominis quidam vero ex emptione habentes sive in Officiis sub spe habendi remanserunt There were some who had Possessions of the said William but some who had them by Purchase or else who remain'd in Offices under the hope of having some as their Offices might enable them to purchase Here some of the Normans were forc'd to purchase otherwise they had gone without Possessions And this must have been of the English otherwise they would have divided the Land amongst themselves with their Prince's consent and need not have made other payment than the Venture of their Lives CHAP. V. The Socmen enjoyed Estates of Titles prior to the suppos'd Conquest BUT besides the uncontroulable Authority of Domesday-book and the Testimony of Authors well back'd with a plain Record with the Doctor 's good leave I shall add another Argument to prove the continuance of the English Rights or that William govern'd not as a Conquerour He may know that there were such men as Sokemanni whose Lands were partible and who held not by Knights Service Whereas King William granted out the whole Kingdom as the Doctor fondly imagines by Knights Service and the Lands of such Tenants descended to the eldest Son wherefore the Sokemanni must needs enjoy their Estates upon Titles prior to King William's not deriving under his Grant since their Lands to obtain that Tenure must have been anciently divided before the time of H. 2. But Glaâ—vil lib. 7. cap. 2. infra if there were any Evidence to the contrary there could have been no Prescription to the Tenure And surely if it was no ancienter than King William's Title the Evidences of the contrary could not be lost Suppose Lands holden in Free-socage were forfeited to the King in which Case Lambert's Peramb of Kent Mr. Lambert yields that the Tenure may be alter'd and he granted it out to hold by Knights Service how could a Custom prevail to alter this Tenure contrary to the very Grant If they could produce their Deeds they shew'd themselves to be Tenants by Knights Service And there were so many Sockemanni even in one County that of Kent that though some Grantees might lose their Deeds yet not so many as there were distinct Estates in Socage For Proof of the Premisses to my Conclusion 1. That there were Sokemanni before William nay that for the most part at least Land-owners were such appears from St. Edward's Law This obliged all men to bear Arms Leges Sancti Edwardi de Heretochiis habeant Haeredes ejus pecuniam terram ejus sine aliquâ diminutione rectè divident inter se. proportionably to their real or personal Estate which last together with the Land of him that dyed in the Wars was to be divided among his Heirs And surely the Law does not suppose that they must always be female Heirs Such as dy'd in the Wars who were Tenants by Knights Service according to our Authors Sense of Qui militare servitium debebant were Sokemanni holding in free Socage Glanvil lib. 7. cap. 2. as Glanvil explains it Si fuerit liber Sokemannus tunc quidem dividetur haereditas inter omnes filios quotquot sunt per partes equales si fuerit Socagium id antiquitus divisum If a man be a free Sokeman then indeed his Inheritance shall be divided amongst all the Sons if it be Socage and that anciently divided It was not improper to say if it be Socage because a Sokeman in respect of some Lands might have others not held in free Socage This is sufficient Evidence that such there were after the Noise of Conquest and that the Lands were to be anciently divided 2. The Estates deriv'd from the Conquest Glos. Tit. Parl. Terram totam ita disposuit ut suum quisque patrimonium de Rege teneret in Capite were according to our bulky Author held by Knights Service Nay the second part of the Glossary which the Dr. invidiously imputes to Sir Henry Spelman tells us that though William was no Conquerour yet he divided out and disposed of all the Land to his great
Rex Comitatum totum absque morâ considere homines Comitatûs omnes Francigenas praecipuè Anglos in antiquis legibus consuetudinibus peritos in unum convenire But of this more when I come to shew at large that others besides Tenants by Knights Service served on Juries c. It farther appears that by Degrees the English were much more considerable than the Normans or other Strangers for that they were all lost and swallow'd up in the great body of the English and therefore they only are named upon all occasions And I believe as far back as Henry the Second's time the French eo nomine will not be found distinguish'd but if however the Tenants in Capite or such as were their Tenants by Knights Service which was laid upon only the Normans themselves Against Mr. Petyt p. 43. were the only governing part and the only Members of the Great Council the Justiciaries Chancellors Lawyers the Ministerial Officers Against Mr. Petyt p. 30. 39. and Under-Judges Earls Sheriffs Bailiffs Hundredaries the legal man and Jurors The Government must needs have been too weak to support it's self when the Ballance of Strength and Property was in other hands and therefore 't was morally impossible that only Tenants in Capite should have been allowed to be of the Great Council when the Nation made Terms for it self upon the Success of their Arms 16 of King John CHAP. VII The Charters of William the First and King John considered with a Confirmation of the Notion of the ordinary Curia distinct from the great or general Councils SECT 1. I know but of two Mediums used by the Dr. which look like Arguments to prove that the Tenants in Capite by Military Service were the only Nobility or the only persons which composed the Great Councils 1. The Grand Charter of William the First 2. That of King John 1. He insists upon two Branches of the first Charter Volumus etiam ac firmiter praecipimus concedimus Vid. Jani Anglorum facies nova p. 22. ut omnes liberi homines totius Monarchiae regni nostri praedicti habeant teneant terras suas possessiones suas bene in pace liberè ab omni exactione injusta Against Mr. Petyt p. 37. ab omni tallagio ita quod nihil ab eis exigatur vel capiatur nisi servitium suum liberum quod de jure nobis facere debent facere tenentur prout statutum est eis illis à nobis concessum jure haereditario in perpetuum per commune concilium totius regni nostri praedicti The second Branch is Statuimus etiam firmiter praecipimus p. 39. ut omnes liberi homines totius regni sint fratres conjurati ad Monarchiam nostram regnum nostrum pro viribus suis facultatibus contra inimicos pro posse suo defendendum viriliter servandum pacem dignitatem Coronae nostrae integram observandam ad judicium rectum justum constanter omnibus modis pro posse suo sine dolo sine dilatione faciendum This Author would gather from hence Against Mr. Petyt p. 39. that all Free-men were Tenants in Military Service that these were the only legal men c. Whereas if the Division had not made a Difference in his partial Judgment he might have found all this to have been fully contained in one of the Laws of the Confessor where they receive another kind of Explanation Et ut verum fatear habent etiam Aldermanni in Civitatibus regni hujus Leg. Ed. de Grâ—ve in Ballivis suis in Burgis clausis muro Vallatis in Castellis eandem dignitatem potestatem modum qualem habent praepositi Hundredorum Wapentachiorum in Ballivis suis sub Vicecomite Regis per universum regnum Debent enim Leges Libertates Jura pacem Regis justas consuetudines regni antiquas à bonis praedecessoribus approbaâ—â—s inviolabiliter sine dolo sine dilatione modis omnibus pro posse suo servare cum aliquid verò inopinatum vel dubium vel malum contra regnum vel contra Coronam Domini Regis forte in Ballivis suis subitò emerserit statim pulsatis campanis quod Anglicè vocant MOTBEL convocare omnes universos quod Anglicè dicunt Folcmote Vocatio Congregatio populorum gentium omnium qui ibi omnes convenire debent universi qui sub protectione pace Domini Regis degunt consistunt in regno predicto ibi providere debent indemnitatibus Coronae regni hujus per Commune Concilium ibi providendum est ad insolentiam malefactorum reprimendam ad utilitatem regni Statutum est enim quod ibi debent populi omnes gentes universae singulis annis semel in anno convenire scilicet in Capite Kal. Maii se fide Sacramento non fracto ibi in unum simul confederare consolidare So William's Law sicut conjurati fratres ad defendendum regnum contra alienigenas contra inimicos una cum Domino suo rege terras honores illius omni fidelitate cum eo servare quod illi ut Domino suo regi intra extra regnum universum Britanniae fideles esse volunt Ita debent facere omnes Principes Comites simul jurare coram Episcopis regni in Folcmote similiter omnes Proceres regni Milites liberi homines universi totius regni Britanniae facere debent in pleno Folcmote fidelitatem Domino Regi ut praedictum est coram Episcopis regni c. Debent etiam universi liberi homines totius regni juxta facultates suas possessiones juxta Catalla sua secundum feodum suum secundum tenementa sua arma habere illa semper prompta conservare ad tuitionem regni servitium Dominorum suorum juxta praeceptum Regis explendum peragendum And to speak the Truth the Aldermen have also in the Cities of this Kingdom within their Bailiwicks and in Burroughs inclosed and walled about and in Castles the same Dignity Power and Manner under the King's Sheriff throughout the Realm for they ought inviolably and without Fraud or Delay by all means to their Power to keep the Laws Liberties Rights Peace of the King and the just and ancient Customs of the Kingdom approved of by their good Predecessors But when any thing unexpected or doubtful happens to fall out of a sudden within their Bailiwicks against the Kingdom or against the Crown of our Lord the King they ought presently by ringing of the Bells which in English they call MOTBEL to call together all the People which in English is called the Folkmote that is the calling together and Assembly of all the People and Countries because all ought to meet there and all who live under the Protection and Peace of
our Lord the King and live in the said Kingdom And there they ought to take 〈◊〉 for the Indemnity of the Crown of this Kingdom by Common-Council And there Provision is to be made to repress the Insolence of Malefactors for the good of the Kingdom For it was enacted that there all People and Counties should meet every year once a year to wit in the beginning of the Kalends of May and there to confederate and consolidate themselves Sicut Conjurati fratres with an inviolable Oath and Faith as sworn Brethren to defend the Kingdom against Foreigners and against Enemies together with their Lord the King and to keep his Lands and Honours with all Faithfulness and that they will be faithful to him as to their Lord both within and without the Realm of Britain So ought all the Princes and Earls to do and also to swear before the Bishops of the Kingdom in the Folkmote and also all the Peers of the Kingdom and the Knights and all the Freemen of the whole Kingdom of Britain ought as is aforesaid to swear Fealty to their Lord the King in full Folkmote before the Bishops of the Kingdom 〈…〉 Free-men of the whole 〈◊〉 ought according to their Faculties and â—ossessions and according to their Fee and according to their Tenements to have Arms and to keep them always in Readiness for the Defence of the Kingdom and the Service of their Lords to be performed and fulfilled according to the precept of their Lord the King Here is not that Provision against Exactions which was afterwards necessary but every other point of William's Grand Charter is fully express'd They were to be sworn Brethren for the preservation of the Rights of the Crown for the keeping the Peace and the Laws and Customs of the Kingdom which secured the Interests of private-men to the Liberi homines totius Monarchiae there answers the Folkmote or Vocatio Congregatio populorum gentium omnium or universi qui sub protectione pace Domini Reges degunt These surely were more than Tenants by Knights Service for they are distinguish'd into Principes Comites Proceres Milites liberi homines universi totius regni And 't is not to be argued that they were Tenants by Knights Service because they were to defend the Kingdom with Arms according to their real and personal Estates For I take it none ever heard of a Tenant by Knights Service of a Chatell If our Disputant were as conversant in Antiquity as he pretends or as faithful as he ought to be and have left off his Designs he would have taken notice of the Assize of Arms in Henry the Second's time which confirms my Sense of the former Laws Quicunque habet foedum unius militis habeat loricam cassidem clypeum lanceam omnis miles habeat tot loricas cassides Hoveden clypeos et lanceas quot habuerit foeda Militum in Dominico suo quicunque liber laicus habuerit in Catallo vel in redditu ad valentiam 16 Marcarum habeat loricam et cassidem et clypeum et lanceam quicunque liber laicus habuerit in Catallo ad valentiam 10 Marcarum habeat halbergellum et capelet ferri et lanceam Et omnes Burgenses et tota communia liberorum hominum habeant Wanbais et capelet ferri et lanceam et unusquisque juret quod infra festum Sancti Hillarii haec arma habebit et domino Regi scilicet Henrico filio Matildis Imperatricis fidem portabit et haec Arma in suo servitio tenebit secundum praeceptum suum et ad fidem Domini Regis et Regni sui Whoever has one Knights Fee let him have an Habergeon and Buckler and Lance and let every Knight have so many Habergeons and Bucklers and Lances as he has Knights Fees in his Demeasn or under him Whatever Free Lay-man has in Chatells to the value of fifteen Marks let him have an Habergeon and Buckler and Lance. Whatever Free Lay-man has in Chatells to the value of 10 Marks let him have an Halbert and Capelet of Iron and let all Inhabitants of Towns Cities Burroughs and all the Commonalty of Free-men have a Wanbais and Capelet of Iron and a Lance and let every one swear that within the Feast of St. Hillary he will have these Arms and will bear Faith to their Leige King to wit to Henry the Son of Matildis the Empress and will hold these Arms in his Service according to his Precept and for the Defence of their Lord the King and his Kingdom Good Mr. Dr. Were all those who were to bear Arms in the King's Service his Tenants by Knights Service Agreeable to this one of the Enquirers upon the Statute of Winchester 34 Ed. 1. is If they have Weapons in their Houses according to the Quality of their Lands and Goods for maintenance of the Peace according to the Statute Our Author p. 1. who has an admirable Faculty of rescuing these sacred things from groundless and designing Interpretations would make the solemn Assembly in the Folkmote In Folcmoto semel quotannis sub initio Kalendarum Maii tanquam in annuo Parliamento convenere Regni Principes tam Episcopi quam Magistratus Liberi homines no more than an ordinary County Court and is pleased to put a Slight upon the Authority of the true Sir Henry Spelman who rightly takes it for a Great Council And the new convincing Reason for the former Sense Glos. tit Geniotum is because the Court where Causes were determined before the King's Provost or Officer New Glos. p. 19. is called Folkmote too but pray why is not this the great Folkmote And why may we not from hence take the Platform of the Great Councils in these Times and consequently of such as King William confirmed together with the Laws of the Confessor Was an ordinary County Court in time of War or Danger to act as a Council in providing for the Safety of the Crown and other things for the profit of the Kingdom And were the Bishops of such a spiritual Nature that they could animate the whole Kingdom as the Soul does the Body and be all at the same time in each distinct County of England Jani Angl. facies nova p. 34. This clears beyond Exception the Charter of Henry the First which provides for the Assembly of the Counties and Hundreds If he had look'd but a little farther de Heretoc he would have found a Folkmote that was held twice a year when this was but once and the Sciremote distinct from that The first was the Sheriffs Tourn the other the County Court and that observed by him might have been either the monthly Sciremote or that Folkmote that was held twice a year Ita vero bis Folkmote singulis annis semper celebrari debet per universos Comitatus c. But to convince him more fully of the Absurdity of his Confidence He
ought to remember that the very Law whereby he would prove all the Free-men of the Kingdom to have been Tenants by Knights Service was in Confirmation of the Confessor's Laws and that granted to those who had lived under them and knew the Benefit of defending themselves and their Properties in the Great Councils and the Nation too there or by their Arms elsewhere without out trusting the manage of all to such Thayns as held immediately of the King Nor were they then likely to quit their former Advantages when as appears by the Story they were in a probable Condition of gaining more if they would for the English had got together by the Encouragement of Abbot Fretherick Exercitum numerosum fortissimum a numerous and most potent Army and in their Head was he who was the only Heir to the Crown and that a Title above the Confessor Upon this Prudentiâ feliciter eruditus having the Happiness to follow his Interest and comply with the Occasion he granted St. Edward's Laws with some Additions indeed but not with such as would defeat the whole And I affirm it that though in his Additions he provides about the Tenures or other matters of his then or future Tenants yet there is not any thing which creates a feud over the whole Kingdom Indeed the Dr. who understands not for it was beyond his Sphere that Service laid either by Common or Statute Law upon all free Lands such as before the Conquest and since the Burgh-bote the Bridge-bote and the Expeditio the last of which we have been disputing of under the Law of Arms is a Service but no Tenure Tit. Hon. as Mr. Selden has rightly shewn would infer that because the Conquerour in Affirmance of St. Edward's Laws enacts That they shall for ever or Jure haereditario enjoy their Lands free from all Manner of Charge but their free Services which indeed tho it implies not his raising Tenures universally does not exclude such as himself had raised that therefore all were made Feudal Tenants Quod restat probandum SECT 2. FOR King John's Charter If he thinks fit to read over the Book that treats of it Against Jan. c. p. 47. once more and to observe it well and compare it with what he hath said he will find it anticipated and answered and if he hath not a mighty strong Fancy of his own Abilities must be ashamed of his impertinent Rhapsodies Since 't is there abundantly proved that though that King's Charter seems to some Understandings to make express provision for the summoning the Great Council of the Nation yet it expressly provided for the summoning the lesser Council the more ordinary Curia Regis only the Tenants which were Members of it standing in need of a Law to relieve them from some Hardships they were under Whereas the constant practise from the Reign of William the First inclusively downwards evinces that they who composed the Great Council had maintain'd their Right ad habendum commune Concilium regni uninterrupted for a general proof of which the Authority of Bracton was us'd which shews that besides such Payments as lay upon the Kings Tenants in Capite or had their Rise from Custom there were other introduc'd by the Common Consent of the whole Kingdom whence 't is easie to conclude that King John's Charter does not exhibit that is prrticularly set forth the full form of our English great and most general Councils in those days Jani c. p 1. Though there is a general Reference to all the constituent parts of those August Assemblies and to be sure nothing to prove that Tenants in Capite were the only Members of them yet what others have thereby Right ad habendum Commune Consilium Regni is not exprest how strongly soever it may be imply'd from the words even without the Interpretation of practise That others had Right is undeniable from the words and 't is as clear from practise who those others were and whether or no all the Members of the great Councils of the Kingdom or even all such as were Tenants in Capite came to Council in Person either upon general or special Summons as such Tenants did to the Conventions for matters of their Tenure is not mentioned but left to that ancient Course and Right which the Practice or Fact explains Tho this last be barely of the manner of Summons yet it shews that the manner is mentioned only in Relation to the form of an ordinary Curia Regis as I shew the Council of Tenants to have been The words upon which our Dispute is are these Nullum Scutagium vel auxilium Mat. Paris fol. 257. ponam in Regno nostro nisi per Commune Consilium regni nostri nisi ad Corpus nostrum redimendum ad primogenitum filium nostrum militem faciendum ad primogenitam filiam nostram semel maritandam Et ad hoc non fiet nisi rationabile auxilium Simili modo fiat de auxiliis de Civitate Londinensi Civitas Londoniensis habeat omnes antiquas Libertates Liberas consuetudines suas tam per terras quum per aquas Praeterea volumus concedimus quod omnes aliae Civitates Burgi Villae Barones de quinque portubus omnes portus habeant omnes Libertates omnes liberas consuetudines suas ad habendum Commune Concilium Regni de auxiliis assidendis aliter quam in Tribus casibus praedictis de Scutagiis assidendis submoneri faciemus Archiepiscopos Episcopos Abbates Comites majores Barones Regni sigillatim per literas nostras praeterea faciemus submoneri in generali per Vicecomites Ballivos nostros omnes alios qui in Capite tenent de nobis ad certum diem scilicet ad terminum quadraginta dierum ad minus ad certum locum in omnibus literis submonitionis illius causam submonitionis illius exponemus sic factâ submonitione negotium procedat ad diem assignatum secundum Consilium eorum qui praesentes fuerint quamvis non omnes submoniti venerint My Inference from hence as I find Et de Scutagiis assidendis divided in a distinct period from what went before the Dr. how foul soever his Reflection of New-face-Maker is Against Jani c. p. 3. has render'd not unfairly viz. That the City of London all Cities Burgs Parishes or Townships that is the Uillani their Inhabitants the Baroons of Free-men of the five Ports and all Ports should amongst other free Customs enjoy their Right of being of or constituting the Common Council of the Kingdom And that this reading and my Deductions from it are not so far remote from Reason and Sense Against Jani c. p. 60. that no man but my self could ever have thought of them appears in that he or they who Midwiv'd into the World the spurious Glossary 2 part of the Glos. use some Artifice to keep them
who have not read this Charter from falling upon this easie way of answering the Doctor 's whole Book and therefore they castrate the Charter and leave out all the provision for the Liberties and free Customs of the several integral parts of the Kingdom as if their imaginary General Council had swallowed up the Liberties and Freedoms of all them who held not of the King Nota A Tenure in Capite is when the Land is not holden of the King as of any Honor Castle or Mannor c. But of the King as of the Crown as of his Crown or in Chief and this some would rather have effected than that the Commons of England should be thought to have had any Right affirm'd by so ancient a Law Spelman's 2 part of the Glossary Tit. Parliamentum and that this was apprehended when the marvellous Discoveries worthy to be inquired into under Title Parliament Bless'd the World may well be gather'd from the printing only as much of that part of the Charter which is now in Debate If but one had an hand in it as in the Publisher's own Judgment he thought would fit his Purpose concealing the rest In that Glossary there is no more than this Spelm. Gloss. Col. 452. Nullum Scutagium vel Auxilium ponam in regno nostro nisi per Commune Concilium Regni nostri 1. Nisi ad corpus nostrum redimendum 2. Ad primogenitum filium nostrum Militem faciendum 3. ad primogenitam filiam nostram semel maritandam ad hoc non fiat nisi rationabile auxilium Nota the Omission here Et ad habendum Commune Consilium Regni de auxiliis assidendis aliter quam in tribus Casibus praedictis et de Scutagiis assidendis summoneri faciemus Archiepiscopos Abbates Comites Majores Barones sigillatim per literas nostras praeterea faciemus summoneri in generali per Vicecomites Ballivos nostros omnes alios qui in Capite tenent de nobis ad certum diem sâ—ilicet ad terminum quadraginta dierum ad minus ad certum locum in omnibus literis submonitionis illius causam summonitionis illius exponemus Et sic factâ summonitione negotium procedat ad diem assignatum secundum Concilium eorum qui praesentes fuerint quamvis non omnes summoniti venerint By the partial citation of this shred or end of the Charter 't is a clear case that Et ad habendum Commune Concilium Regni is there in express words appropriated to Tenants in Capite whatever may have been reserv'd to others in the general provision for all their Liberties and free Customes and the Publisher hath so dexterously and effectually patched the Fragments together that the Reader must be forced according to those curious Appearances to assent to the Publisher and Doctor 's fallacious Assertions that none but the Tenants in Capite made the Commune Concilium Regni the City of London and all other Cities Burroughs Ports and Towns or Parishes whose Rights are there reserved being clearly left out in the Glossary whereas 't will be very difficult to one that reads the whole together not to think that admitting ad habendum Commune Consilium Regni be there appropriated to the Kings Tenants in Chief yet the Aid and Escuage they are impower'd to assess must be such as concern'd them onely A reservation for the Liberties and free Customs of all the parts of the Kingdom following immediately upon mention of the Common Council of the Kingdom which undoubtedly had of Right and Custom a larger Power than barely the granting of Taxes But if Et ad habendum Commune Concilium Regni de auxiliis assidendis aliter quam in tribus casibus praedictis ought to be joyn'd to the Liberties and free Customs of the whole Nation reserved by King John's Charter then that darling Notion of a Parliament of the King's Tenants only no more to be prov'd than that we had Parliaments of Women as well as others falls to the ground Vid. Jan. p. 239. And by the Dr's good favour there was no need of proving that amongst the other Customs of the Cities Burroughs Against Jan. p. 4. c. this of enjoying a Right of being of or constituting the Common Council of the Kingdom was one of them any otherwise than from the express words of the Charter nor could I justly be blam'd for not going first to prove that such were Members before my saying that if they were so before and at the making of the Charter their Right is preserv'd to them by it and is confirm'd by the Charter of H. 3. c. 9. Since in all mens Logick but the Dr's the Argument is to be laid down before it can be made good and the thing to be prov'd here is but the minor of a Syllogism Which Argument being founded upon Fact which the Dr. would have to be the onely Controversie between us p. 1. I may wave for a while and yet there 's no doubt but I prove a Right if I shew that amongst other Liberties and free Customs all parts of the Kingdom here enumerated were by the Words of King John's Charter to enjoy a Right ad habendum Commune Concilium Regni The Dr. agrees So Matth. Paris Against Jan. c. p. 62. that King John's Charter and that which H. 3. granted in the 9th of his Reign were alike in all things Wherefore if I can shew the likeness I hope 't will qualifie and abate our Author 's great Wrath for my proving from thence a provision for a more General Council than one made up of Tenants onely For p. 63. being like 't is not necessary that the Words should be the very same but the Sense and if we are sure by Record that we have the right words we are certain if Records may explain Matthew Paris that the likeness he meant consisted in the Sense Since therefore in the Great Charter granted 9 H. 3. as I find also one in Secundo there is in a Chapter intire by it self The hand-writing of E MS. peues Dom. Petyt as the Lord Cook cites it Scutagium de caetero capiatur sicut capi consuevit tempore H. avi nostri and no other provision is in any part of the Charter made for the Great Council of the Nation than what is contain'd under the Liberties and free Customs of every particular Place and yet this wholly agrees with and expresses the Sense of King John's Et de Scutagiis assidendis must be disjoyned from ad habendum Commune Concilium Regni aliter quam in tribus casibus praedictis And if so then the Tenants in Capite who are under that Division have no express provision there made for their Summons to the Great Council of the Nation but are with others left for that to the antient Law as it was in the time of H. 2. whose Laws both Charters that were in
soever you read it under the Liberties and free Customs will be comprehended their whole Interest in the Legislature whereas otherwise according to this Charter of all their Liberties the King 's Great Council had then only Power to raise Taxes though we find that all along they advis'd de arduis negotiis regni and consented to what passed into a Law Wherefore Against Jan. c. p. 13. ' t is strange there should not have been the same care taken that they might have thier Rights in Council setled as well as their Summons to it but if this Charter setled no other Right than this of granting Taxes Quere What other power the Great Councils have now by our Author's Principles For admit that by the New Government which he says was fram'd and set up in the 49th of Hen. 3. a Right of coming to the Great Council was giv'n to a body of men who before that had none yet there was no additional power given to the Council it self that he or any man can shew Because I would encounter the whole Force which they raise by colour of this Charter I address'd my self chiefly to the proving that admitting that Et ad habendum commune consilium Regni aliter quam ought to be joyn'd as of the same period with de Scutagiis assidendis 't will not make for the purpose of them that urge it being upon strict Inquiry it cannot be thought to extend farther than to such matters as concern'd Tenants in Chief only That this must be thus confin'd is prov'd I. Because there were Majores Barones not excluded by this Charter and so their ancient Right continued tho they are not within the meaning of that part he insists upon for this is only of Tenants in Capite that is such as were subject to the Feudal Law The Earl of Chester for instance was not under it as Earl of Chester Wardship was a necessary Appendix to that Tenure but even the Tenants within that County though holding other Lands of the King by Knights Service were however out of the King's Wardship much more the Count Palatine And surely no body before the Dr. ever took him for a Feudal Tenant by reason of the County of Chester though he might be oblig'd to attend in the Wars and pay Escuage in case of Failure for other Lands held in Chief in other Counties 2. There were others came and upon other occasions than what are here mentioned as Falcatius de Brent who was to come even without forty days notice which was required in the Case here and whereas giving Advice in great Affairs and the making of Laws were transacted in the Great Councils no such thing is mention'd in this 3. We have the Resolution of a whole Parliament the 40th of Ed. 3. That the Common Council of the Kingdom of Tenants in Chief was not the Great Council of the Kingdom for that King John resigned his Crown in the first Council but as they declare not in the last and this the very Circumstances attending the Resignation evince 4. If the opposite Doctrine be true then all the dignified and inferiour Clergy which did not hold in Capite Abbots Priors c. were excluded 5. This must needs be no more than a Common Council of the Kingdom for assessing Escuage and such other Aid as lay upon Tenants in Capite only because Tenants only stood in need of Relief from this Charter they only being concerned in the three things reserved to the King or in the Additions to them none other being charged in that kind without more general Consent and more than Tenants being Parties to the Grant Besides not only the advances upon Tenants Services but the ordinary Incidents were called Auxilia as well as those others which according to Bracton were not called Services nor came from Custom but were only in case of Necessity or when the King met his People as Hydage Corage and Carvage and many other things brought in by the common Consent of the whole Kingdom Now where the King reserves Incidents to Tenure only 't is to be supposed that the Reservation is out of the thing before mentioned and so that must be Services because of Tenure none but Tenants being named whereas when others are named we may well suppose the Aids given by others too to be intended 6. We may here divide the benefit to each sort of Tenant in particular I. As the Tenants by Socage Tenure only were talliable and that us'd to be without their own Consent here they have a Consent given them 2. As Tenants by Knights Service though not talliable yet had hardship in the Obligation to sudden Attendance convenient Notice is given and it should seem that the want of this for the assessing of Escuage was their only grievance proper to be redrest for their Attendance in the Wars was to be govern'd by Necessity and as a Court of Justice there was no need of them 7. There is a Difference to be observed all along between the Great Council and such an one as is mentioned in this Charter I. For the Persons composing the one and the other 2. The matters of which they treated And 3. the times of holding them For the Great Councils by his own way of arguing there was at least one Great Council in the Reign of William the First where were more than Tenants in Chief The Tenants in Chief he supposes to have been only the Normans and Foreigners who were Enemies to the English Laws and the only great men by his Rule wherefore if the English Laws were retained at the Petition of any great body of men here they must be populus Jani Anglorum facies nova p. 55. inferiour People of England This was Ad preces Communitatis Anglorum Universi compatriotae regni petition'd as appears in the very Body of the Laws then received but these as despicable as they were had got together a numerous and mighty Army of which they made Edgar Etheling General these are all called Primates mitius coepit agere cum primatibus regni To shew that 't was matter of Council 't was argued Pro and Con at Berkhamsted Selden ad ead fo 171. where post multas disceptationes after many Disputes the English Laws were setled I need urge no more in this Reign except that which he hath yielded to my hand in effect viz. that all the Free-holders of the several Counties of England met this King in a Great Council at Salisbury For he himself tells us that all the Free-men of the Kingdom held by Knights Service and here were all the Knights so more than Tenants in Capite and all the Free-holders too as they were Knights all holding by Military Service But if there were other Freemen such as held in Free and common Socage qui militare servitium debebant who ow'd Military Service for the defence of the Kingdom though they held not by it why were
If a man holding of the King in Capite by the Service of two Knights alien'd one or two Knights Fees with Licence without particular Exemption from the King's Duty in this Case the Burden went along with the Land but if he had according to Licence made sufficient Provision for the King's Service the rest he might have rais'd for his own use and though the Service continued to be reserved to the King yet the Alienee before the Statute of Quia emptores terrarum which was introductory of a new Law was Tenant to the immediate Feoffâ—r this Tenant had no Right to be at the King's Council of Tenants and yet was to answer Escuage and all manner of Charges as assest by the Tenants in Chief who were the only Council for the purposes of such Tenure Si quid novisti rectius istis Candidus impâ—rti si non his utere mecum If our wise Author greater Truths have taught Shew me wherein or take what I have brought To go on with Great and General Councils 21 H. 3. we find at a Great Council Comites Barones Milites liberi homines Whereas 't is said on the other side that none under the Degree of Knights came At another Jani c. p. 244. Barones Proceres Magnates ac Nobiles Portuum Maris habitatores nec non Clerus Populus universus 'T is a ridiculous Answer to this that all these are put together only to make an Impression upon the Pope as if the Sense of the whole Nations Representative whatever it were were not as much to move a Foreign Prince as the whole Nations 45 Hen. 3. Three are chosen out of every County to represent the Body of the County An Agreement was made between King and People 48. H 3. Jan. c. p. 246. A Domino Rege Domino Ed. filio suo Prelatis Proceribus omnibus et communitate regni Angliae To all this p. 265. may be added that long before where the ingenuitas regni were consulted Here are Instances enough of greater Councils than such as King John's Charter settles as I have observed those there were made a Council only for the matters of their Feud they met ordinarily three times a Year and in that were ordinarily a Court of Justice and he betrays his Ignorance not to say more who affiâ—ms the contrary 'T is no Objection to this that sometimes we find Regnum Angliae at it for still 't was ad Curiam pro more Not that the Kingdom used to come of Course but then came to that Court which was ordinary or of Course That the Kings great Officers and Ministers of Justice were there I have always yielded and that 't was no Grievance to the Tenants to have Justice administred without them at other times and therefore it makes not against my Sense that these often sat without the Tenants Yet their sitting was not at stated times and therefore they were not Curia pro more Either way there was a great Council distinct from the less 1. As to the persons composing the one and the other The Great Council had the whole Nation of Proprietâ—rs or of Representatives of their Choice in the other at the most the King had only his Tenants in Chief and Officers and Ministers of Justice 2. As to the matters treated of the one treated of matters of extraordinary Justice the other but ordinary 3. For time the great Council was summon'd as often as the State of the Kingdom required it the other as a Court of Tenants and Officers had times ascertain'd not but that as occasion might offer it self they might be summon'd according to King John's Charter Nay may be after that they never met but upon Summons the lesser Court of Officers and Ministers of Justice met oftner than either but not of Course And thus have I answered his Arguments from King John's Charter by which he labours to prove That Tenants in Chief only composed the Great Council or were all the Nobility of England and have given a clear Account of that unintelligible piece as he is pleased to represent it leaving out what I offer'd upon the Question of the Bishops Voting in Capital Cases since he had no other way of answering it than by calling it impertinent Rhapsody Tho if 't is no better to be answer'd 't is not Rhapsody and fancyful Stuff and if the first ground from our Laws to dispute their Right mentions it in relation to the Curia Regis 't was not surely impertinent to consider their Right the Curia from whence 't was excluded being so directly to my purpose There are other things incidentally coming in which I divide not into Heads being they serve but to explain those which I have rais'd To which may be added That our Author by the Exercise of his Faculty of Story-telling and setting forth the Power of the great rebellious Barons Against Mr. Petyt p. 210. has given us to understand That the Commons were not first brought into the Great Councils in the 49 of Hen. 3. unless we believe that the great men would coâ—sent to ballance and weaken their own Power I may put the Question in his own words upon another Occasion Can it be reasonably imagined Against Mr. Petyt p. 234. 235. that they should give way to or establish such Laws as would undoe and destroy their own Settlement in Power Wherefore the Argument is strong that till then the Commons came in their own Person but that then the Great men having the Power in their hands clip'd their Wings But let us see his weighty Arguments against my sense of this Charter In Answer to my third Head he puts me off with the Fallibility of a Parlialiament but if moral Certainty without Infallibility will not satisfie him in matters of the greatest Concern we may know what he would be at But forsooth this was not a full Court of Tenants because as was usual only some few attested the Fact In Opposition to my Fifth p. 10. 11. he tells us that even voluntary Gifts to the Crown are called auxilia nay even such as were more than Advances upon Services But what proof is there that such were here meant when not only Services because of Tenure with the Advances upon them but what came from more than Tenants are called Auxilia too As general Objections against my Sense 1. If Tenants in Capite were a great Council of the Kingdom p. 12. for Aids and Escuage only which is hardly reconcileable to Sense Why so good Dr. May there not be a great Council especially a Common-Council to a particular Purpose Nay you your self confine it's Power to the raising of Taxes Why was the Cause of Summons to be declared Because of the occasion requiring greater or less Aid 2. Lastly If all Free-men or as our Author saith in other places all Proprietors were Members of the Great and General
Parliament But there is yet a farther Evidence in that as the same Matters were handled in the one and the other sometimes in conjunction with the great Council sometimes separate from it so 't was in the same manner And thus Thomas de Berkley who was a Lord in the 4th of Edw. 3. was Tryed in Parliament by a Common Jurâ— Rot. Parl. 4 Edw. 3. De bono malo ponit se super Patriam upon which a Jury of Knights was returned And this to be sure was according to the Common-Law the way of Tryal in the ordinary Curia which doubtless Glanvil lib. 2. c. 7. was that Assize mentioned by Glanvil Clementiâ Principis de Concilio Procerum populis indultum Where there alwayes was a Jury of twelve at the least Farther Before the Itinerant Judges were setled and before the Courts fixed at Westminster Pleas must needs ordinarily have been coram ipso Rege he being personally present And that the Tenants in Chief 〈…〉 appears by the Constitution of Clarendon which requires it in affirmance of the Common Law Archiepiscopi Episcopi universi personae regni qui de Rege tenent in Capite debent interesse Judiciis Curiae Regis c. Our Adventurer in Antiquities who treats the Author of Jani Anglorum Facies nova with much contempt has this passage p. 26. Notwithstanding he sayes it is agreed on all hands the ordinary Curia was held thrice a year I never heard of any one of his opinion but himself He would make the great Court held at these times he mentions and the great Confluence of Nobility then to the Kings Court to be the King 's ordinary Court for this Dispatch of ordinary Business and Controversies between the King and his Subjects or between man and man I will not deny but often Petitions might be put up and Complaints made to them about private matters such as alwayes have been to the House of Lords and many more of antient times than have been for a Century or two of years And that they did determine and pass Judgment in those Cases But that they were therefore the King 's Ordinary Court I think no body will say but such as never read antient History or Lawyers or at least never intend to understand them Truly he has an excellent Faculty to bring men's Arguments into the shape of his own and then 't is easie even for him to expose them He would have it that according to my Notion the House of Lords is the King 's ordinary Court because of determining in matters of ordinary Justice whereas I make the Notion of Ordinary not to consist in that onely unless it be at ordinary or stated times Nor do I say that the House of Lords is an Ordinary Court but succeeded into the Jurisdiction of the ordinary But he does well to serve my Hypothesis in making the Comparison between these two Courts The one of which as I before observed succeeded to and gives an Idea of the other though it agree not in every particular And as the House of Lords divided from the Commons never could make Laws so neither could the ordinary Curia unless when joyned to the greater though both the House of Lords and the Curia before were the Supreme Courts of Judicature And if the Curia was held thrice a year and confin'd to Matters of ordinary Justice which I think I have proved in shewing that the Legislative Power was vested in more than the King and his Tenants and Officers then I find not that our Champion so much as blunders upon any thing against what I say But to prove more particularly my Assertion which he would have to be my singular Opinion Knighton to instance in an Author of the best eredit tells us of King William the First Knighton f. 2354. In praecipuis Festis profusè convivabat natale Domini apud Gloverniam Pasche apud Wintoniam Pentecosten apud Westmonasterium quando in Anglia foret tenere consuevit On the chief Feasts he used to make great Entertainments when he was in England He used to keep his Christmas at Glocester Easter at Winchester Whitsontide at Westminster Besides at these times when the height of the Feasting was over Causes us'd to be heard Eaâ—merus f. 37. as Eadmerus who might well know informs us Peractis igitur festivioribus diebus diversorum negotiorum Causae in medium duci ex more caeperunt When therefore the most Festival dayes were over they began to treat of divers Causes as was the usual manner To these Feasts there us'd to come onely Tenants and the King 's great Officers which I need not go to prove since our Author would have Tenants onely even exclusive of Officers that were not Tâ—nants to have come to the greatest Councils So that the Court being held thrice a year the Members of it the same which I have shewn and their Business ordinary Tryals here is that Ordinary Court which I have contended for And thus having given some reason for my confidence p. 49. I may expect to be believed This might serve upon this Head but I thank him he generally gives me occasion by reason of his Exceptions to confirm the Rules which I take He fancies he has a great Advantage over me Jan. c. p. 191. by my saying that the Administration of Justice which I mean of the common or ordinary Administration was taken from the ordinary Curia and fix'd at the Courts in Westminster Hall Communia placita non sequantur Curiam nostram And not observing that there was the same Clause in King John's Charter I had plac'd it some three years too late according to him though in truth Glanvil lib. 2. c. 6. there were Justices in Banco sedentes which seems to be meant of a fix'd place in the time of H. 2. And so it must have been since King John's Charter was not introductory of any new Law But I understand not the force of his Argument that if this Council summoned p. 46 47. as is there were the Curia Regis Ordinaria and went off by reason of this Clause it certainly went off before it began Unless he acknowledge that the Curia there provided for be it ordinary or extraordinary was not in Being before And truly I shall not quarrel with him for this But I appeal to any man that will consider without Byass Whether ' t is manifestly prov'd in the Answer ib. that after the granting of this Charter by King John there were many general and great Councils or Colloquiums summon'd by Edict according to the Form which he would have to be there prescribed However it seems by him that there was no such Form for general and great Councils before But how well do's he understand what I say I make but part of the Power of the Curia to have been taken away by Magna Charta or be it by the Law there affirmed but that
of granting Aid and Escuage which onely is mentioned in that part of the Charter which relates to the Curia whether ordinary or extraordinary I say continued to the 34. th of Ed. 1. at least Jan. c. p. 192. of Right it should unless swallow'd up in Parliaments But whenever the Court which granted such Aid as the Charter means ceas'd to be held pro more thrice a year it ceas'd to be an ordinary Curia This might have been either by the pleasure of the King who needed not to summon his Tenants but when he pleased Or else it might have been in the 49th of Henry the Third Against Mr. Petyt p. 110. when our Author says there was a new Government I agree with him that the King 's ordinary Court continued in the several Kings Reigns Against Ian. c. p. 53. in all its branches and divisions and derivative Jurisdictions and yet not the same any more than a man is the same with his Executor that represents his Person and is the same in Law The House of Lords had the Jurisdiction of the ordinary Curia most properly being as he himself yields 't was ex taâ—tâ multitudine of men holding in Capite that some had the special Writs which made them of the upper House and coming in the Degree and Circumstances of Tenants in Chief they had the same Power The Justices and Officers that were not Tenants in Chief must needs have been but Assistants in the Ordinary Curia as they have ever been in the House of Lords and the inferiour Tenants without doubt were to serve on Juries as the Knights were Jurors in Berklay's Case before the House of Lords nor do I find that these inferiour Tenants had any other Power or Interest except that of giving Taxes which is the only Power which our Author seems to yield to the greatest Council The Power of the Justices Itenerant or of them that were setled at Westminster-hall was derived from the King and his Curia either ordinary or when it cas'd to be ordinary yet in effect continued the same Court. And thus as late as the time of Edward the Second you shall find the Curia then not only to have Writs of Error brought thither or to impower the Barons of the Exchequer who were properly under it to determine matters concerning the King's Revenue or concerning Tithes but for Causes of all Natures to be tryed before any Judges they awarded the Writs and appointed the Judges sometimes mandetur Justiciariis de utroque Banco Rot. Parl. 8 Ed. 2. r. 209. These Benches were very anciently fix'd at Westminster-â—all but still they were so dependant upon the King 's more immediate Curia that often they were only to hear the Cause and certifie to the higher Court what appear'd to them as was usually done by those who were assign'd to hear the Petitions delivered in Parliament Sometimes Judges were impowered Ad audiendum terminandum matters tam ad 〈◊〉 Regis quam aliorum But certain it is that where an Estate was deriv'd from the King's Grant or the King 's Right and Title might be affected by any matter in Question 't was usual for the Curia to order that Judgment should be stay'd till there was a new Power had after Certificate how the matter stood Thomas de Multon and Anthony de Lucy Rot. Parl. 9 Ed. 2. n. 65. pray that there being need of inspecting the Rolls of Chancery in order to the clearing their Title to certain Lands there might be a view of the Records and Remembrances Part of the Answer is as follows Mittatur ista Petitio sub pede sigilli Willielmo Inge sociis suis Justiciaâ—iis Regis ad placita Regis coram Rege teâ—enda assignatis unà cum processu super â—egotio in dictâ Peitione contento coram Rogero de Brabanzon sociis suis priâ—s habito quem quidem processum idem Rogerus per breve Regis consilio Regis apud Lincolnum liberavit mandetur eis per â—reve quod examinato diligenter toto negoâ—io praedicto vocatis servientibus Regis aliis qui fuerint evocandi in negotio illo â—rocedant prout de Jure fuerit faciendum Ita tamen quod Rex super Recordo processu dicti negotii certioretur antequam super hoc ad redditionem judicii procedatur serutendum insuper in Cancellaria in Scaccario si necesse fuerit rationes evidentiae siquae pro jure Regis in hac parte poterint inveniri Si necesse sâ—erit It seems the Justices of the Common Pleas Brabanzon and his Fellows not being particularly commission'd could not proceed to Judgment for want of Power to look into the Rolls of Chancery nor could the Judges of the King's Bench though they had Power of Inspection then given them proceed with effect till they had certified the King in his more immediate Curia The Heirs of Bartholomew Redman â—â—t Parâ— 8 Ed. 2. n. 114. petition that whereas they held Lands of the Abbot of St. Bennet by certain Services which Land they had let to the Queen she obliging her self to discharge the Services but had not they might have Grace and Remedy This was to be examined in Chancery Responsa 〈◊〉 per Coâ—ci iâ—m but the Judgment was referred to the Curia Reseratur Regi Rex saciet justitiam To this Curia all manner of Justices were accountable for their Actions So the Judges of Assize in Cornwalâ— being complained against for acting irregularly Rot. Parl 8 Ed. 2. two are appointed to examine the matter and to certifie the Council who had reserved the Judgment to themselves In short the supream Judicature over all Causes was in this Curia the House of Lords the very same which the Court of Tenants in Chief with such others as us'd to come pro more had before and yet there was a common or ordinary Administration in the Judges But our Author who is by Fits the kindest hearted man in the World proves my Notion to my hand out of Britton Against Jan. c. p. 28. 29. Nous voluns quae nostre Jurisdiction soit sur touts jurisdictions en nostre Royalme which where it relates to Judicature must be meant of the King in his Curia or House of Lords and there as Judge the King has Power in all Felonies Trespasses Contracts and in all other Actions personal or real But because it would be too great a Trouble for the King in that Court to hear and determine in all plaints c. Therefore En primes en droit de nous mesm de nostre Court avouns issint ordyne que pur ceo que nous ne sufficens my en nostre proprie person à oyer terminer touts quereles del people avant dit avouns party nostre charge ex plusieurs parties sicome icy est ordyne Can any thing be more plain than that all inferiour Courts were deriv'd
out of this Curia for the sake of which as well as the Kings own the Charge was divided CHAP. VIII That ordinary Free-holders were nobles before the 49. of Hen. 3. and came to the Great Councils as such in their own Persons HAving vindicated from his Cavils my Notion of the Curia Regis and the present Seat of it's Power I shall address my self to shew that I have not cheated my Readers in the proofs I have brought of the General Councils of the Nation much more large than the ordinary Curia Regis I thought I had shewn in my first Essay in this kind by very clear proofs that the Liberè Tenentes of the Kingdom Free-holders came to the Great Councils from the Reign of William the First inclusively to the 48. or 49. of Hen. 3. without any setled Exclusion which is enough if it reach'd to the greatest part of them with which the Ballance was If I prove that as such to wit merely because of Property be it more or less they were noble the proof will be yet stronger because all Authors and Records agree that no Nobles were excluded till then Mr. Petyt has very judiciously asserted the Right of Commoners all along before the Conquest which our Opponent like a right Sophister would have to be from the Creation whereas that 't was so immemorially so as there are no Foot-steps to the contrary is as much in the eye of Law as if from his fantastical Epocha so in Domesday-book Lands are said to have been semper in Ecclesiâ or in Monasterio To take in the Justification both of Mr. Petyt and my self I shall prove that all the Free-holders which were in a true Sense universi de regno were Nobles That these were the whole Kingdom appears by one of the Statutes requiring the entring into such Sodality De omnibus Villis totius regni sub decimali fidejussione debebant esse universi Leges Sancti Ed. cap. 19. The whole People of all the Vills of the Kingdom ought to be under or else within Franckpledges It appears by another Law that those who were not Free-holders were under the Pledge of another Habeat omnis Dominus familiam suam in plegio suo Let every Master of a Family have his Family within his Pledge And every Master of a Family must be reciprocal with a Free-pledge or Free-holder for him who had not wherewith to maintain his Family either no body would undertake for and so he was cast out to be imprison'd and no member of the Commonwealth or else was under the Wing of another having not wherewith otherwise to subsist Agreeably to this Spelman's Glos. tit Letae Sir H. S. calls these free pledges Liberiores Villae seu designatae stationis These Free-holders had an inferiour Court of Justice by themselves from whence Appeals lay upwards to the Hundreds from them to the Counties from them to the Curia Regis and the Propositus or Headborough was Aldermannus * * * Leges Sancti Ed. de centum â—riborgis Spelm. Glos. tit Friburgos Isti speaking of the Decanus decemvir or caput de decem inter Villas Vicinos causas tractabant secundum forisfacturas emendationes capiebant concordationes faciebant viz. de pascuis pratis messibus de litigationibus inter vieinos innumerabilibus hujusmodi decertationibus quae humanam fragilitatem infestant eam incessanter oppugnant Cum autem majores causae erumpebant referebantur ad superiores eorum Justiciarios quos supradicti sapientes super eos constituerant Viz. They that made the Law of Frank-pledge scilicet super decem Decanos quos possumus dicere centuriones vel centumviros eo quod semper centum Friborgos judicabant They treated of Causes in the Vills and amongst their Neighbours they took Satisfaction according to the Forfeitures and made Agreement between the Parties to wit about Pastures Meadows Crops and quarrels amongst Neighbours and innumerable Contests of this kind which infest humane Frailty and continually assault it But when greater Causes happen'd they were referred to Justices above them which the aforesaid Wisemen plac'd over them to wit over the Heads of ten Tythings whom we may call Centuries or Centumvirs because they always judged an Hundred Frank-pledges These Heads of the Tithings who were Judges in the Vills were Aldermanni chose by the major part of every Tything From this it follows that if the Headborough was an Alderman of the choice of the Free-holders then the right of Free-holders to dispose of Property was sufficiently maintained in having their Aldermanni at the Great Councils As at that of King Ina Leges Inae where the Laws were made exhortatione doctrinâ of some great men particularly named omnium Aldermannorum meorum But indeed there were besides these Seniores sapientes which I take it will reach to all the Free-pledges and a great Assembly of the Servants of God under which Expressions also they might have come as well as the Clergy Glos. p. 31. Omnis homo qui se tenuerit pro libero sit in Plegio Leges Willielmi 1. Est quaedam summa maxima securitas per quaâ— omnes statu firmissimo sustinentur ut unusquisque stabiliet se sub fiâ—â—jussiâ—nis securitate Leges Sancti Ed. de Friborgis Yet our Author has shut out all Clerks and Knights supposing them all along to have been no part of the Nation divided into Decuries or Tythings But the main point yet unprov'd is That every Dominus Familiae or Freeholder was a Thayn and this I will prove by the greatest Authority that of Statute Law Et habeat omnis Dominus familiam suam in plegio suo si accusetur in aliquo respondeat in Hundredo ubi compellabitur sicut recta Lex sit Leges Câ—nuti c. 52. Quod si aâ—cusetur fugiat reddat Dominus ejus Regi Weram i. precium nativitatis hominis illius Et si Dominus accusetur quod ejus Consilio fugerit adlegiet se cum quinque Thanis id est Nobilibus idem sit sextus si purgatio frangat ei reddat ei Weram suam qui fugerit extra legem habeatur And let every Master have his Family in his Pledge and if he be accused in any thing let him that is of the Family answer in the Hundred where he shall be try'd according to Law But if he be accus'd and fly for it let his Master pay the King his Were that is the price of his Head or of his Birth And if the Master be accus'd that he fled with his Counsel or Consent let him wage his Law with five Thains that is Nobles and let himself be the sixth If he cannot acquit himself let him pay the King the price of his Head and let the Party that fled be out-law'd Here the Master of the Family was joyned with five Thayns and he made the sixth and this the
learn'd Antiquary Lamb. Leges Etheâ—redi cap. 1. Mr. Lambart renders Ascitis sibi ingenuis quinque taking to him five Freemen for what he calls ingenuus Bromton calls liber homo Ingenuus quisque fidejussores c. fidissimos adhibeto Vt omnis liber homo habeat credibile plegium Let every Free-holder have a credible pledge this must be confin'd to Dominus familiae unless it be of such as cannot be Pledges themselves but under Free-pledges their Masters And this is farther evident in that it answers to the Head-borough's purging himself Quinque Thanis i. e. Nobilibus Leg. Canut and his Tithing with five Friborgi or Frank-pledges se duodecimo existente that is Duodecimâmanu with the 12th hand as is required by St. Edward's Law de Friborgis where no other Nobility is exacted than what every Free-pledge had The ancient Laws give farther Proof in that Satrapas a Peer or Noble and Paganus a Chorle or Villain as we find Chorle render'd in an ancient Manuscript cited by Mr. Selden Vid. Jan. p. 32. in his Titles of Honour took in all the Orders of men Idem juris esto per omnes hominum ordines Leges Aluredi de proditione dominorum sive Satrapae sive Pagani fuerint So in the Laws of William 1. whereas 't is supposed that the Thayni or Barons since answering to them were denominated from holding of the King So Domesday Bronâ—ton Leges Canuti apud Lamb. de we find Thanus Regis and Mediocris Thaynus or inferiour sive infamae conditionis distinct And 't is to be observ'd that this took in all that paid the Hereot which was then a payment relating to the Army so that this to be sure reach'd to all that held of any by Knights Service but it appears by St. Edward's Laws that it reach'd to all that bore Arms. De Heretochiis In quolibet comitatu semper fuit unus Hereteoch per electionem electus ad conducendum exercitum Comitatûs sui c. Et qui in bello ante Dominum suum ceciderit sit hoc in Terrâ sit alibi sint ei relevationes condonatae habeant Haeredes ejus pecuniam terram ejus sine aliquâ diminutione rectè dividant inter se. But it will be said whatever was the Law before William's time it was not so after Leges H. 1. cap. 29. Qui debent esse judic 7. Rs. but for this I will one a Law express Whereas the Thayns are called Nobles in the Laws by me cited and as all Authors agree have generally since been called Barons not but that in William the First 's time Terra Tainorum Regis they retain'd their old names as appears by Domesday book we find in this Law that they who had Free-lands in any County and according to the known Law were and still continue Judges in the County Court were Barons Regis Judices Barones Comitatus qui liberas in eis terras habent Leges Hen. 1. cap. per quos debeâ—t causae singulorum alternâ prosecutione tractari Villani verô vel Cocsetti vel Perdingi vel qui sunt viles vel inopes personae non sunt inter Legum Judires numerandi unde nec in Hundredo vel comitatu pecuniam suam vel dominorum sâ—orum forisfaciunt The King's Judges are the Barons of the County they who have free Lands there who are to try one anothers Causes But Villains or Beggars or they who are base and indigent persons are not to be reckon'd amonst the Judges of the Laws wherefore they neither forfeit their own nor their Masters Money in the Hundred or County 'T is plain that the Judgments in the Hundreds and Counties are those which are here intended so that the Barons which have Free Lands De generalibus placitis Comit. answer to the Bishops Counts c. And the Headboroughs and other Owners of Land who were to be at the County Court And the true Sir Henry Spelman agrees that the Barones Comitatus were amongst others fundorum proprietarii Free-holders and these he says were Feudal Barons Baronum feodalium species where Feudal must be meant in a Sense different from our Authors But our Undertaker will prove that none but such as held by Knights Service were Barones Comitatûs This of being Suitors to the County and Hundred Courts Against Mr. Petyt p. 40. c. was a Service incident to their Tenures For proof he refers us to Glanvil but with very little Success for in the 13th Book which he fancies throughout to agree with his Vagary Liberi legales homines are as often named as Milites sometimes indeed Milites strictly were required at the Common Law 1 Inst. f. 256. a. as where a Peer of the Realm was concern'd in the Action and four Knights upon their Oaths ought to return twelve Knights to try the Mise in a Writ of Right â—b f. 159. a. But the Supposition that the Freemen Masters of Families such as were Conservators of the Peace anciently and had given the Government Security for their Obedience to the Laws could not be probi legales homines is a Conceit p. 26. for which I dare say our Man of sagacious Invention was beholden to no man If he had looked a little better into Hoveden who sometimes is in great Request with him he might have found other free and legal men besides Knights and own'd so by a positive Law Siquis retatus fuerit coram justitiis Domini Regis Assisae Hen. 2. Factae apud Clarendum renovatae apud Northamptune Hoveden f. 549. de murdro vel â—atrocinio c. per Sacramentum duodecim militum de Hundredo si Milites non adfuerint per Sacramentum duodecim liberorum legalium hominum per Sacramentum quatuor hominum de unaquaque Villâ Hundredi eat ad judicium aquae But for his Notion to give it's due 1. 'T is absurd 2. 'T is dangerous 1. We know that the Titles to Estates from before the reputed Conquest are allowed upon the Presentments of the Counties and Hundreds Testatur Comitatus Testatur Hundredus c. If these were all Strangers brought in with the Conquerour how could they know the Tithe and who enjoyed the Land Die quo Rex Edwardus fuit vivus mortuus and by what Services nay who was the third Heir as we find they present Besides is it supposable that they would have allowed the old Inhabitants such large Shares as we find in Domesday-book but if our Author had read the Tryal between Sheriff Picot and William de Chornet he would have found that the Meliores of the County and Hundred that present the Right to be in Chornet were the English who were not Tenants by Knights Service since we are told that they were all Normans and this appears in that they were Antiqui such as were antient and knew how it was in the time of the
Statute of the Great men The Law made à Rege ib. p. 11. Baronibus Populo had the like Legislators and I do affirm Against Mr. Petyt p. 13. that the word Populus is not to be found in any of these Thus I have wonderfully discovered the unsoundness of Mr. Petit's Assertions ib. p. 2. though it will be objected I have jumpt over several Arguments and they material ones concerning Great Councils before the Conquest Upon which it follows that if the Populus were admitted after it must be by the bounty of the Conquerour who might at pleasure revoke his Concessions For the Story of Edwin of Sharnborn b. p. 24. supposed to have enjoyed his Lands by a Prior Title 't is a famous Legend and trite Fable though he had the King's mandat for Recovering his Estate Sir Edward Coke ib. p. 30. who to avoid the evidence that our English Laws were the Norman Laws Against Jan◠c. p. 89. said The Laws of England are Leges non scriptae said it precatiously without any Foundation or Authority Besides 't was ridiculous as if they were known by Revelation divinely cast into the hearts of men Though some may impertinently ask me Whether there were not Laws before Writing and that without Revelation or divinely casting into the hearts of men But that Against Mr. Petyt p. 167. if affirmed is a palpable and gross Error What though that Clergy-man-Lawyer Bracton agree with Coke yet he spoke out of Ignorance or Design when he said Absurdum non erit leges Anglicanas licet non scriptas leges appellare Bracton l. 1. fol. 1. William the Conquerour brought in a New Law Against Mr. Petyt p. 29. and imposed it upon the People The greatest part of the Antient Law as it was brought hither by the Normans was exacted and observed by ib. p. 43. and upon only the Normans For the English they had no Property or Rights left And so were all Outlaws This Domesday-Book in every County shews though 't is said several English-men are there mentioned holding by Titles not derived from the Conquerour p. 176. And for a farther proof of this King William ' s Law to all the Freemen of the whole Kingdom was made only to Tenants in Military Service ib. p. 39. which were French p. 35. Flemings Anjovins Britains Poictovins and People of other Nations When this King in the 4th of his Reign summon'd Anglos Nobiles Sapientes suâ lege eruditos to give an account of their Laws 't was a Sham Summons for no English were Nobles nay none were so much as Free-men but the Foreigners amongst whom William divided the Kingdom and therefore Strangers that had their Estates came in their steads and gave an Account upon Oath of the Laws before their own time as they us'd to do of matter of Fact p. 39. when sworn upon common Juries William the Second and Henry the First were Usurpers and Traitors p. 51. notwithstanding the People's Elections Clerus and Populus are to be understood onely of Tenants in Capite p. 56. never of the inferiour sort of People Wherefore they dote who say that the inferiour Clergy nay the dignified not Tenants in Capite came to Great Councils before 49 H. 3. It 's very true Against Jan. c. p. 70. that in our Ancient Parliament-Rolls the Knights of Shires are sometimes called Grantz des Counties or Great men of the Counties and well they might for without doubt they were most commonly the greatest Tenants in Capite under the degree of Barons in each County Against Mr. Petyt p. 116. 117. And for evidence of this the Great Tenants in Capite that were no Barons and perhaps the least Tenants in Capite in the times of Ed. 3. and Ric. 2. are call'd autres grantz or Grandes autres Nobles which were Barons Peers called by the King 's Writ into the Lords House at pleasure and omitted at pleasure Wherefore 't is to be observed that the Knight for the Shires might well be Noble or Grantz since they were call'd sometimes to sit in the Lords House And whether they that were chose for the Counties and did not sit in the Lords House as Barons Peers were Grantz or Nobles perhaps may be a Question As a choice piece of Learning I must acquaint you that though sometimes Fideles signifie qui in Principis alicujus potestate Glos. p. 15. ditione sunt qui vulgo subjecti appellantur Subjects in general yet unless there be special matter to shew the contrary 't is meant of Uassals who having received Fees are in the Retinue of some Patron or Lord if in the King's Retinue they are Tenants in Capite So when we find Writs directed Omnibus Christi Fidelibus Glos. p. 17. Here when there is no more Subject matter to determine it than when 't is omnibus Fidelibus Regni they must be our Saviour's Tenants in Capite When the Form of Peace Against Mr. Petyt p. 125. in the 48th of H. 3. was by the Assent of the King the Bishops and the whole Community of the Kingdom can any man say the Earls and Great Barons these Tenants in Capite gave not their Consents They must be included in and were a part of the whole Community of the Kingdom And indeed to speak the truth it is not denied against me Against Jani p. 71. but proves their Notion to those Vnwary Readers whom they seduce to have some good opinion of their Fancies Though that Form of peace is said in the Record to be Actum in Parliamento London Against Mr. Petyt p. 208. yet the Prelates and Barons were such as sided with Montfort p. 120. and the Community was the Body of his Army and the Citizens and other of the Faction they were not the Community of the Prelates and Barons onely as at other times Nay here were the Citizens and others besides the Army And yet the Community or Body of the Army took in all besides the Prelates and Barons And this must needs have been the Army Mat. Westm. p. 394. Posted convenientibus Londini Praelatis c. partis illius quae Regem suum tam seditio è tenuit captivatum because 't was after their work was over that the Assembly at London was And the Army it must be though as 't is idely objected it is far from appearing that all the Bishops Earls and Barons which consented had been in Arms. Though they that were of the Faction as is usual caball'd together and as some will say onely resolved upon what they would press the King to they hereby Statuebant c. made Laws before the consent of the King and all the Bishops Earls and Barons and it should seem before all were assembled or could be a Parliament And which such as never intended to understand will make a wondring
and his Progenitors Peers and the Commons of the Land Rastal Stat. 15 Ed. 3. c. 1. 't is declar'd that 't was made Per le Roy Peers Commune de la terre as other Statutes made afterwards even as late as Edward the Third and I hope I have satisfi'd every Body that the Commons in the sense as then taken came not to the Great Councils till the 49th of H. 3. Whereas the Charter pretends at the end to have been made the 9th of that King Nay there is this farther Evidence that the Charter of Henry the Third was not made in the 9th of Henry the Third and therefore not till the 25th of Edward the First though confirmed in the 15th which is that Matthew Paris himself who explains Records better than they can explain him agrees that 't was made praesentibus Clero 〈…〉 magnatibus Regionis Mat. Par. â—d Tigurâ— â— 311. So 〈…〉 or besides 〈…〉 the order of the 〈…〉 de la terre were the Great men Tenants in Capite The Author whom I now animadvert upon has a Nonsensical Argument that there were others obliged besides Tenants in Chief and that were or had right to be Not Fact onely of the Common Council of the Kingdom Vid. supra cap. 1. though not upon the accounts mentioned in the Charter As Falcatius de Brent who by reason of great Possessions was to come etiam non vocatus and so without the forty dayes Summons required to the purposes there mentioned Jan. p. 13. But this is precariously said Jan. c. p. 89. So he would also prove from the Charter of H. 1. that they who were Members of the County Court were to be summoned to the Great Council upon the King 's necessary occasions p. 34. or de arduis Jani p. 14. But in this he cheats and abuses his Readers Against Jan. p. 62. and p. 63. Jan. c. p. 248. he produces a Statute in the Year 1427 which falls within the Reign of H. 6. of the Neighbouring Kingdom of Scotland where the Feudal Law to be sure had as great force as here which shews that the Free Tenants came to their Parliaments in their own Persons But the Scottish Government neither was nor is the English any more than every like is the same He shews us Jan. c. p. 214. that the Nobilitas Populusque minor was consulted about King Henry the First 's Marriage but he was an Vsurper and a Traitor He urges Jan. c. p. 241. that Tenure in Capite was pleaded off as a burden which would not have been if they could charge the rest in Parliament some of which pleaded that they could be Taxed onely with the Community of the County Though he cites an express Record before 49 H. 3. where besides Tenants in Capite two others are summoned for every County to grant a Tax I answer though the Question is of Fact onely that is Whether more than Tenants in Chief ever at any time before 49 H. 3. came to the Great Councils yet the History of this time and the occasion of this Writ will give any reasonable man satisfaction why they were summoned which is in effect that they were not summon'd â—nd indeed this is a way of shaming a Record which I earnestly reâ—mmend having often try'd it with â—ccess Witness my turning off anoâ—â—er Record with the Authority of â—atth Paris Against Mr. Petyt p. 183. Whereas the New Face-maker takes â—â—tice of the Complaint in a Parliaâ—ent of Henry the Third Jan. c. p. 246. that all were â—ot called according to the Tenor â—agnae Chartae suae which he contends â—wprdâ— be Henry the Third's Charter And â—erefore that they must refer themâ—â—lves to the Clause which provides â—r the Liberties and free Customes â—en of the Villae Henry the Third's Charter was the same with King John's â—â—d with Edward the First 's Against Jan. p. 61. by the â—â—st of which the Villae were certainly â—rovided for But the Clause ad habenâ—â—m Commune Concilium Regni is oneâ— in King John's which is an Argument against me as unintelligible as that â—â—agnae Chartae suae was of the then â—ing's Great Charter Thus I have taught this New Constiâ—â—tion and Upstart Society those weighâ— Truths which had never blest the World but for my painful Search Mr. Speaker That we may not be too much humbled upon these Discoveries we muâ—â— consider that the House of Commoâ— began in the 49th of Henry the Thirâ— whereas the Lords came at the pleasuâ— of that King and even of the Succeâ—â—sors of Ed. 1. and so are a much youngâ—er House in point of Settlement And that no man may wonder aâ— this my freedom I must let them knoâ— that I am not of an English Extractâ—â—on but by the Father's side descendâ—ed from a Noble Poictovin and an Aâ—â—jovin on the Mothers or some otheâ—â— who came in with William the Conquerour Myrmidonum Dolopum ve aut duri Mâ—â—les Vlissis And besides am a Tenant in Capite aâ— Head of a Learned Society Against Mr. Petyt p. 252. and also de Retinentia Regis because of a certaiâ— Honour under him obtained by a special Mandamus Berners discharged from being Knight of the Shire because de Retinentia Regis By reason of which 〈◊〉 could not by Law have been here â—â—less it had been the King's Prerogaâ—e that who he pleased should be of 〈◊〉 House of Commons Against Mr. Petyt p. 249. as well as the â—â—use of Lords And indeed the Law 〈◊〉 well be dispenc'd with One Knight for a County c. named to the Sheriff for the 〈◊〉 of so much Useful Knowledge as have communicated And thus libeâ—i animam meam â—uditum admissi risum teneatis amici FINIS ADDITIONS Answering the OMISSIONS OF OUR Reverend AUTHOR LONDON Printed for Edward Berry 1681. ADDITIONS Answering the OMISSIONS c. SInce the Doctor thinks to flourish with some of his frivolous Omissions like running his Sword â—hrough me after he had slain me in â—magination To shew that I am not â—uite killed I shall venture to try the â—ngth of his new whetted Animadâ—erting Weapon and give him a few â—ome thrusts in exchange for his inâ—ended ones Because I find him a â—entle and easie Foe I shall advise â—im like a Friend Frange miser Calamos vigilataque praelia dele Your miserable Scribling pray give o're With such Polemicks vex the World no more Nor censure every thing as Impertinent Against Jani c. p. 1. Vnintelligible and Obscure that 's above the level of your understanding For proof of his great understanding he taxes three Paragraphs of mine with Obscurity Ib. p. 113. and 114. and that darkness which is in his own mind 1. The first is Jani c. p. 26. that the City of London being charged with a Tallage their Common-Council dispute whether it were Tallagium or
Auxilium which is there meant of voluntary aid not due upon the account of their Houses being oâ— of the Kings Demeasn though indeed 't is then shewn that they had severalâ— times before been talliated Quid a new Paragraph Quid esâ— quod in hâc Causâ defensionis egeat must needs say I take all this to be sâ— plain that I know not which part ought to add any light to Is the difference between Tallage and a Voluntarâ— Aid obscure Or is it not well known that the Kings Demeasns only were talâ—â—liated and that the City having beeâ— talliated 't was in vain to urge thaâ— they paid only voluntary Aid But perhaps in the two next the oâ—scurity may lye and yet by the Doctorâ— Art of multiplying faults they maâ— make three obscure Paragraphs 2. This explains that part of the Charter He adds such to Cases to render it obscure Jani c. p. 26. Simili modo fiat de Civitate London that is as in all Cases besides those excepted Escuage or Tallage should not be raised but by a Common-Council of the Kingdom that is of all the persons concerned to pay so for the City of London unless the Aid was ordered in Common-Council wherein they and all other Tenants in chief were assembled none should be laid upon any Citizens but by the consent of their own Common-Council Na. So if a sum in gross were laid upon them and if the Ordinance were only in general Terms that all the Kings Demeasns should be talliated the proportions payable there should be agreed by the Common-Council of the City This consists of two parts First That where there was not the consent of a Common-Council of all the Tenents in chief the Citizens might of themselves give a Tallage which is not in dispute between us but is with admirable ingenuity turned into an assertion Viz. To such payment as Tâ—â—lage that Cities and Burroughs were not taxed or assessed towards any payments but by their own Common-Councils which is not to be inferred from the priviledge of one City suppose it were so for London nor can be gathered from my words which yield that even London might be Taxt or Assessed by the consent of the Common-Council of Tenents or that they Against Jani c. p. 113. as part of the Common-Council of the Land taxed themselves which is true but no man of sense can understand that to be the meaning of this part of the Obscure Paragraph but that something farther was intended 2. The second I need not explain since he understands for all his affected ignorance Indeed he would take in more places that after a Tax was imposed upon the City of London the Inhabitants or those who composed its Council met to proportion it so as it might be paid with as much equality as could be Na. the King did perhaps require a certain sum after a general Ordinance made by the Council of Tenents for a Rationabile auxilium Jani c. p. 26. This he yields to my hand that they always did if they would it seems convinced by that Record which shews that when the Council of the City would not agree to the Sum demanded by the King 't was de voluntate omnium Baronum nostrorum Civitatis ejusdem that the King talliated his Tenents per se or per Capita so much upon every head 3. This clears the last Paragraph which I need not recite it having no meaning differing from the Record but if my Record give not sufficient light and strength he I thank him according to his usual Curtesie cites one clear enough Dr. p. 115. Et cum praedicti Cives noluissent intrare finem praedict ' trium mille marcarum praedicti Thes. alii voluerint assidere illud Tal. per Capita So that till the Citizens refused the the Sum in gross the King did not Talliate each man in particular But I am told that this is nothing to my purpose 't is strange that he who blames me in other places for not quoting more than is for my purpose when nothing behind makes against me should now tax me for not skipping over any part of that Clause which 't was needful to take and explain entire To clear up his understanding if possible though I thought to have left this Task I will obviate an objection which such as our Answerer may make that 't is obscure how the Record of the Common-Council of London's concerning its self about the Charge laid upon the City should explain that part of the Charter which sayes Simili modo fiat de Civitate London but surely practice is a good Interpreter of a Law and there is this further evidence that here is provision for the power of the Common-Council of the City because that holding in Capite and being mentioned distinct from all the other Tenents there named in general it must be for something else besides that for which 't is joyned with the other Tenents But Excedimus tenebris in crepusculum from this obscurity and darkness to be felt by the Doctors groaping hand we come to broad day light When in the 39th H. 3. Against Jani p. 115. 117. Provisum fuit per Consilium Regis apud Merton that he should talliate his Demeasns though this was after King John's Charter which was intended to restrain the King from levying publick Taxes without publick consent yet it seems to be plain by the Record that the King by the advice of his Privy Council taxed the City of London even without the consent of the Common Council of his immediate Tenents whom he makes the Common-Council for all manner of Aid and Escuage But it may be said a Tallage was no publick Tax though the Tax here spoke of is made no more publick than the consent required to charge it Which consent according to him was from immediate Tenents only so that Tallage might be a publick Tax as well as any other And to be sure Scutagium concerning the Kings Tenents only and the Cases in which the King reserv'd to himself power of taxing without publick consent in his sense relating only to them the Tax because of tenure must be provided for as well as other if any other were there meant by Auxilium vel Scutagium Nay he owns expresly that according to the Law in King John ' s Charter London and other Cities and Burghs were to be Assessed and Taxed by the Common-Council of the Kingdom p. 117. 118. And he makes a reason of that provision to be the usage in the time of H. 2. for the King to Talliate or Tax them without such a Council The Doctor has doubtless the most particular convincing way of reasoning of any man he says that Law in King John ' s Charter intended to restrain the King from levying of publick Taxes without publick consent And the reason of this Artice in King John ' s Charter
is Argument sufficient to prove it for mark the weighty reason H. the Third after this was granted and Edw. 1st taxed their Demeasns through England though not the whole Kingdom by Advice and Consent of their Privy-Councils only until the Stat ' de Tallagio non concedendo That is as Tallage is confest to be a Publick Tax because some of King John's Successors Tax't their Demeans without publick consent Therefore 't was provided in King John's time by way of Prophesy that no publick Tax Aid or Escuage should be raised without publick consent So that what was done after was a moral cause or occasion of what preceded 'T will be said that the thing that the Doctor went to prove was that the Common-Council mentioned in the Charter was the Great and Common-Council of the Kingdom to all intents and purposes Not that the King was restrained from levying a publick Tax without the consent of the Great Council But surely when he goes to give the reason why the Charter must be taken in such a sense we are to expect the proof of that not of something else quitting the thing to be proved If I can understand his dark meaning he was proving that Nullum Scutagium c. intended to restrain the King from levying publick Taxes without publick Consent That is to explain what he very obscurely drives at the restraint was only from Taxing the whole Kingdom not from Taxing his Tenants in Chief And the reason of this Article p. 118. viz. as taken in this sense is that several times after this Charter was granted Hen. 3. and Edw. 1. Taxed their Demeasns through England though not the whole Kingdom by Advice and Consent of their Privy-Councils only until the Statute De tallagio non concedendo was made 34 E. 1. And both Richard the First and King John had Taxed the whole Kingdom without common Assent before the grant of Magna Charta And when he has made good the Premises in this Argument for the meaning of the Article which will be ad graecas Calendas then he may conclude that this Article intended to restrain the King Na. he should have added only Nullum Scutagium c. only from levying of publick Taxes without publick Consent not to provide about Escuage or Tallage which none but his immediate Tenants were liable to And from hence when prov'd we might with some more colour and coherence raise the Consequence that the Common-Council mentioned in King John's Charter was the Great and Common-Council of the Kingdom to all intents and purposes But how that should appear from the mention of Aid and Escuage only will be a Question ' T is by him observ'd of Richard the First Accepit de unaquâque carucatâ terrae totius Angliae sex solidos But what proof is there from the word accepit or the collecting of a Tax ex praecepto Regis that he took it without publick consent Bracton Lib. 1. cap. 16. I am sure Bracton as good an Author as the Historian whom he Vouches tells us Carvage and such this was could never be raised but Consensu communi totius regni But if the King in his Privy-Council might Tax the Kingdom its self till the making King John's Charter and was restrain'd then I wonder our Reverend Author has made the Constitution of the House of Lords that is according to him the whole great Council to have been no earlier than the 49th of H. 3. And unless such a Council as is mentioned in that Charter were Constituted before Nay sometimes he Argues that it was not before p. 56. how comes it to pass that the Clerus and Populus which were of the Kings Council for making Laws and giving Taxes were not till 17. Jo. confin'd to such of them as were of the Privy-Council as well as Communitas populi after Magnates was meant of such people as were Magnates and Milites p. 110. liberè tenentes besides Barons were the Tenents in Capite 112. who by their Acts oblig'd all that held of them by Knights Service 113. that is all the Milites but not the liberè tenentes We are taught that in the 6 of King John Tenents in Capite only Against Jani c. p. 125 126 127. provided that every nine Knights should find a tenth for the defence of the Kingdom and that they who were to find them were all Tenents in Military Service Though the Record shews that besides the Miles vel Serviens Alius terram tenens was Charged with this And he vouchsafes not to take notice of my Argument that every Knight being bound by his tenure to find a man if this had not extended to all that had to the value of a Knights Fee Jani c. p. 225. though not held by Knights Service it would have been an abatement of the Services due and a weakning of the Kingdom Besides admit that Tenents in Capite only laid this Charge and only Tenents by Knights Service were bound by it here is such a Commune Concilium of Tenents as I say King John's Charter Exhibits and no Charge laid by them upon others Whereas he should have prov'd that they did oblige others without their consent But suppose Tenents only were Charged why might not the Charge have been laid by Omnes fideles in my sense as we find Omnes de Regno taxing Knights Fees only The Doctor in his Margin gives us an admirable nota p. 119. that Liberi were Tenants in Military Service or Gentlemen Rustici Socagers possessors or Freeholders in Socages only which is as much as to say that Freeholders were not Freemen unless they held in Military Service and yet a Tenement or Possession neither added to Glos. p. 10. or detracted from the person of any man if free or bond before But surely Mr. Professor has some colourable proof for his remark here For that let others judge Hoveden acquaints us with the manner of collecting a Carvage in the ninth of Richard the First which was that in every County the King appointed one Clergyman and one Knight who with the Sheriff of the County to which they were sent Galls Mâ—lites and lawful Knights chose and sworn to execute this business faithfully Fecerunt venire coram se senescalos Baronum istius comitatûs de qualibet villâ Dominum vel Ballivum villae prepositum cum quatuor legalibus hominibus villae sivae liberis sive rusticis who were to swear how many Plough Lands there were in every Town If here liberi and rustici are not meant for two denominations of the same sort of men that is ordinary Freeholders I will leave him to fight it out with Hoveden since he himself is directly contrary to the old Munâ— Hoveden shews us that these Socagers were legales homines such as chose Juries and serv'd on Juries themselves Against Mr. Petyt p. 36. c. but our new light
could bring many Arguments from the Doctor Against Mr. Petyt p. 183. 192. as besides others that the Vniversitas Militiae or 〈◊〉 militare servitium debebant that 〈◊〉 as Record explains Ma. P. aris the â—â—ideles besides Milites were Members 〈◊〉 Parliament but I may spare farther â—â—oof till he gives me fresh occasion 14. And possibly then amongst his other marvellous discoveries I may have time to animadvert a little more largely upon his fancy Against Jani c. p. 34. that the Suitors in the County Court were all Tenents in Military Service except Barons both in the Saxon and Norman times Yet this tenure came in with Will 1st by the way you must understand that the Barons were not Tenents in Military Service Against Mr. Petyt p. 31. though they held in Capite by Knights Service And that William the the First made no alteration of the Government for Tenents by Military Service were the only legal men and the only Members of the Great Counciâ— before But as Tenents in Capite Glos. p. 26. and their Tenents in Military Service were 〈◊〉 the Great Councils in Person all the Suitors at the County Court who werâ— according to the Charter of H. 1. qâ—â—liberas habent terras in each Countâ—â— respectively were there in Person aâ— Members Though not relating to the foundation of my Essay Against Mr. Petyt p. 43. according to him who makes the Question about the Conquest not directly to reach the Controuersy between us Against Jani p. 15. I may make a little â—port with his Arguing that William 1st gave whole Counties to his Followers Against Mr. Petyt p. 29. â—nder the word Comitatus that is as â—he renders it all the Lands in the Counties and yet that besides whole Counties Glos. p. 8. he gave a great proportion of Lands in them But since he taxes what I lay for the foundation of my Essay for precarious â—et's see a little whether he does not â—ender his own so where it opposes â—ine His whole Book in that respect resolves its self into these three Heads 1. That King John's Charter in affirâ—ance of the Law imposed by William â—r in force before declares that the Tenents in Capite were the only Members of the General Council of the Kingdom 2. That from thence to the 49 H. 3. the practice or fact was for Tenents only 〈◊〉 compose the Great or General Council 3. That none but Tenents in Capite were Nobles 1. If he himself yields that tiâ— King John's Charter there was no such Council as one made up only of Tenent in Capite he thereby renders all undeâ— this head precarious but this he does iâ— two places at least One where hâ— urges that if the Curia Regis Ordinaria which I say was the Court of the King Tenents Against Jani p. 46. 47. and Officers exclusive of others went off by reason of the Clause iâ— King John's Charter it certainly wenâ— off before it began that is such a Courâ— began not before and agreeable to this he says that after the granting of thiâ— Charter by King John there were man General and Great Councils or Colloâ—quiums summon'd by Edict according tâ— the form there prescribed that is aâ—â— he will have it after that the Tenent in Capite only were summon'd to thâ— Great Council but not before for the began this form In another place though he chargeâ— upon me what are his own words hâ— says King John resigned his Crown the 15â— ib. p. 22. 23. of May in the 14th of his Reign Thus p. 48. 49. he charges Mr. Petyt and me for averring that even Servants who are not in a legal sense people of the Kingdom were Members of the Great Council and he granted the great Charter of the Liberties three years after on the 15. of June in the 17. of his Reign and therefore could not resign it in such a Council as was Constituted three years after his Resignation And 't is a question whether he asserts not this in a third place where he affirms that before this Charter the Kingdom had been Taxt by our ancient Kings and their Privy-Council only 2. But in truth he not only yields that the Tenents in Chief were first made the General Council by King John's Charter My words are in such a Council as this here but that after that more than such were Members Jani p. 15. which is as much as to say that there was such a Council as this before p. 118. not only the Tenents in Military Service of Tenents in Chief but other ordinary Freeholders So that he submits himself to be goard by both the horns of that Dilemma inforc't in my former Treatise viz. that King John's Charter was either declarative of the Law as 't was before Against Jani p. 66. Jani p. 236. or introductive of a new Law And yields the precariousness of his own vagaries 3. But does he not own that the Notion that Tenents in Capite only were Noble is precarious Since he yields that no kind of tenure does nobilitate or so much as make a man free who was not so before according to his Blood or Extraction Glos. p. 10. Though according to this one that held of the King in Chief might have been a Subjects Villain yet none that held a certain Estate of Freehold could be a Villain because 't is contrary to the nature of a Freehold that it should be so no longer than another pleas'd that is only an Estate at will He will have it that Mr. Petyt is guilty of some horrible Design Against Mr. Petyt p. 1. from the effects of which it seems this mighty Champion is to rescue the Government And for me I am a Seducer one who would seduce unwary Readers Against Jani p. 71. a malicious insinuation as if I would wheedle to my side a party against Truth and the Government but whether he who would set aside the evidences for the Rights of the Lords and Commons or they who produce them fair and would render them unquestioned is guilty of the worst design the World will judge and I doubt not but he has at home a thousand Witnesses Conscientia millâ— testes who if he will hear their unbyast Testimonies will inform him whose are the groundless and designing interpretations Against Mr. Petyt p. 1. But I must confess they are so weak that these sacred things need very little help to rescue them ib. especially since their Enemies are so far from agreeing amongst themselves that 't is more easie to conquer than to reconcile them As on Mr. Petyts and my side the design can be no other than to shew how deeply rooted the Parliamentary Rights are So the Doctors in opposition to ours must be to shew the contrary a design worthy of a Member of Parliament and 't is a Question whether he